(50rn?ll ICatu irljcol Khtatg Cornell University Library KF5305.M17 V.I A treatise on the law of municipal corpo 3 1924 019 959 133 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019959133 A TREATISE ON THE LAW OF MUmCIPAL COEPORATIONS By EUGENE McQUILLIN AUTHOR OF MUNICIPAL ORDINANCES, AMD JUDOE OF THE EIGHTH JUDICIAL CIRCUIT, MISSOURI IN SIX VOLUMES VOL. I CHICAGO: CALLAGHAN & COMPANY 1911 Copyright, 1911, by EUGENE McQUTLLIN To WILLIAM HOWARD TAFT WHOSE JUDICIAL CAREE;EI, , RANKS WITH THE HTfJHEST, WHOSE PHILIPPINE SERVICE PLACES HIM FIRST IN CONSTRUCTIVE STATESMANSHIP, AND WHOSB EARNEST EFFORTS TO IMPROVE THE ADMINISTRATION OF JUSTICE ADVANCE HIM TO LEADERSHIP IN AMERTCAII JURIDICAL THOUGHT, THIS WORK IS RESPECTFULLY DEDICATED BY THE AUTHOR. PREFACE. A conscientious effort has been made in tHese pages to present a clear, succinct, accurate and full statement of the various principles of the law of Municipal Corpora- tions as it has developed aiid as it at present exists in this country. More than sixteen years have passed since this work was begun. In 1894 in his professional obligations the author was required to make a careful study of certain features of the powers appertaining to local government. He then resolved to prepare a treatise embracing the entire law relating to the powers, duties and liabilities of cities and towns. Since that time, with frequent inter- ruptions due to professional and judicial duties, stead- ily increasing with the years, he has devoted himself to the task with deep interest. Since the work was com- menced the rapid development in Municipal Corporation Law has necessitated modification of the original plan and scope, and a work at first designed to cover three volumes has increased to six. During his labors on the present volumes the author has prepared other works dealing with the same sub- ject. In 1901, by appointment, he issued the first anno- tated Municipal Code of St. Louis, embracing the Scheme and Charter, ordinances, and all state laws specially ap- plicable to the city, with an extensive treatment of va- rious topics of the law of Municipal Corporations. The next year a volume followed with comments on the mu- nicipal organization of St. Louis, and the purpose and effect of certain sweeping charter amendments, made just prior to that time, dealing mainly with public im- provements and special taxation. In 1904 the treatise on Municipal Ordinances appeared, which has been fre- quently quoted and cited by courts of last resort. All the material contained in Municipal Ordinances has been thoroughly revised, brought down to date and in- corporated in these pages. Certain conclusions alike V - vi Municipal Cobpobations. applicable to all the municipal corporations of the coun- try derived from the investigation and study required in the preparation of the works above mentioned are embraced as parts of these volumes. That Municipal Corporation Law is important, com- plex and intricate is familiar to those who have given time and study to the subject. It is important because it coilstitutes the body of legal regulations concerning the personal and property rights of nearly one-half of the inhabitants of this country in their relations as urban residents. Inherently the subject is intricate and complex, but its complexity is due to some extent to the variant powers contained in the municipal charters existing in the numerous incorporated cities and towns in this country. A statement of the whole body of Municipal Corpora- tion Law as administered in the nearly fifty independent sovereignties in the Eepublic as embodied in the several state constitutions, statutes, municipal charters and judi- cial decisions in appropriate legal laugnao^e and in con- cise and systematic form at once full, precise and correct would be of priceless value. However, this can only be approximated. The fundamental doctrines by which our complex system of Municipal Corporation Law is gov- erned may be gathered, stated, arranged and classified. The process of judicial reasoning by which these princi- ples have been established and the manner in which they are applied daily by the courts to the various facts, con- ditions, and circumstances growing out of the practical administration of municipal government may be given so as to render such conclusions readily accessible; and thus the law applicable to a particular case may be as- certained. To present these general legal rules clearly much detail is essential; provisions of particular consti- tutions, statutes, charters and ordinances must be con- sidered in connection with the facts of the case ; the pol- icy of the given jurisdiction pertaining to the exercise of the powers of cities and towns must not be over- looked; and finally, the growth of governmental and Pbefaoe. vii economic ideas, especially as they relate to the adminis- tration of the aifairs of our municipal corporations, particularly during the last three decades, and the man- ner in which this development has influenced judicial decisions must be taken into account. The above considerations have guided the author in the preparation of the present work. Therefore, in or- der to exhibit the law fully, in many instances, facts of cases have been incorporated, numerous illustrations set out and quotations from judicial opinions given. A concrete case is often more satisfactory than a mere ab- stract statement. The rule of law and its application will better demonstrate the true doctrine. During the past sixteen years the author has con- sulted many legal text books dealing with the various phases of Municipal Corporation Law in this country, in Canada and in England; historical works, ancient and modern; and late general books dealing with the urban community of to-day in this country, in England and in Continental Europe, in its manifold aspects, but the most valuable sources of information, the governmental and legal doctrines that have controlled the development of the Modem Municipal Corporation have been found, of course, in the judicial decisions of the courts of this country, in Canada and in England. Notwithstanding the great diversity of judicial views respecting some phases of the subject, in the main har- mony in judicial conclusions, where the laws under re- view and the facts involved are the same in substance, is the rule. Thus it may be said that, although our Munic- ipal Corporation Law is of English origin, a system of laws peculiar to the Municipal Corporation in the United States has been developed by the joint labors of our students of municipal problems, legislators, lawyers, jurists, and judges ; however, to the latter, in the humble opinion of the author, based upon an experience of near- ly thirty years as a practitioner, teacher and lecturer on law, law writer and judge we are the most indebted for that high moral standard and spirit of justice which viii Municipal Cobpobations. pervades our judicial iudgments. These judgments abound in learning, clear, logical and practical reason- ing, and wise conservatism, and perhaps it is not too much to say that they constitute our most valuable pos- session. Specifically, in the preparation of this work, the nu- merous judicial decisions dealing with every phase of the important subject of Municipal Corporations have been studied, analyzed and compared, and the principles deduced therefrom, together with the reasons support- ing them, wrought into text and notes in a form which it is believed will prove convenient and easily accessi- ble. Besides the official reports, para,llel references are made to the National Eeporter System, American Decis- ions, American Eeports and State Eeports, and the Law- yers' Eeports Annotated. The cross-references are nu- merous and specific. For greater convenience catch- words have been freely employed in text and notes. While acknowledgment is due, and it is gladly given, to the patience and ability of Claude P. Berry, Esq., Charles Eberle, Esq., and Emerson E. Schnepp, Esq., of the St. Louis Bar, and to the special training and learning of Clark A. Nichols, Esq., of the Los Angeles Bar for intelligent assistance during the past three years on various parts of this work, yet these pages are the result of the personal labors of the author. Eugene McQuillin. St. Louis, October, 1911. EXTEACTS FEOM PREFACE TO MUNICIPAL ORDINANCES. Municipal admiaistration is more closely associated with the daily life of the urban citizen than either f^dr eral or state administration; the taxpayer and property owner are more directly and vitally concerned. In the usual American municipal organization the council or governing body is created directly by the electors, and iSj therefore, the popular branch; and it is through this department that the will of the inhabitants as rightful participants in the local civil government is manifested. This is done by corporate acts, legislative or quasi legislative in character. These acts when duly completed and promulgated become ordinances, if of a permanent nature, or resolutions, if designed for a tem- porary purpose. Chiefly by ordinance or resolution aU money exaction from urban citizens for state or local purposes are levied and collected; public revenue dis- tributed; streets, public ways, sewers, drains, water, lighting and public improvements of all kinds provided; the peace, good order and health of the local community preserved ; and its trade and commerce advanced. To municipal officers and their legal advisers, and to those interested in municipal government, for years, the value of a satisfactory treatise dealing exclusively with the subject of Municipal Ordinances has not been doubt- ed. Practicing lawyers who have been called upon to investigate legal questions wherein municipal legisla- tion was directly or indirectly involved have felt the need of such work. Such has been the experience time and time again of the author. In recent years, "marked developments in the legisla- tive powers of municipal councils and boards have oc- curred. These developments have been wrought by ix Municipal Cobporations. changes in state constitutions, statutes, and municipal charters, and judicial decisions construing such laws, in the light of the rapid progress made, particularly dur- ing the past decade, in municipal government. Munic- ipal charters of the present day differ materially from those of earlier origin. True, the latter form the basis for the former, but the meager and sometimes vague ex- pressions pf the older charters have been exchanged for more precise and elaborate provisions. The needs and conveniences of crowded modern urban centers have re- sulted in due recognition of the desirability and, indeed, necessity of entrusting such local governmental organs with broader and more efficient powers for local self- government. ' ' Eugene McQuillin. St. Louis, January, 1904 DEDICATION OF MUNICIPAL ORDINANCES To my friend ROBERT E. MoMATH lOEinEB A.. 8. a B., PBESIDENT BOi.KD OF FUBLIO niPBOTEMKItTS (1893 TO 1901) OF TUB OITT OF ST. UH7IS, MISSOUBI, THIS WOBK IS INSCSIBED, AS A TBIBUTB TO HIS ACCUKATB KNOWLEDGE OF FUBUC IMFBOTKMENT OKDI- NANCES AND MATnOtS BELATINO TO ICUNICIFAt WOSK, ALSO AS A TOKEN at ICANT TEABS OF BENEFICIAL FBIENOSHIP OF ITS AOTBOM if Kf CONTENTS BY CHAPTERS VOLUME I CHAPTER 1. Sections. Pages, i-ioo. The Rise and Progress of Municipal Insti- TUTIONSj THE GOVERNMENT OF MoDERN CIT- IES, Complex Character of Municipal Administration and Suggestions for Im- provement 1-241 CHAPTEE 2. 101-119. The Nature and Kinds of Municipal Cor- porations , 242-291 CHAPTER 3. 120-163. Creation and Classification of Municipal Corporations 292-372 CHAPTEE 4. 164-247. Legislative Control of Municipal Corpo- rations 373-564 CHAPTER 5. 248-254. Corporate Name , . 565-576 CHAPTER 6. 2'5';-2s8. Corporate Seal 577-583 CHAPTER 7. 259-297. Corporate Boundaries 584-673 CHAPTER 8. 298-317. Dissolution and Reorganization of Munic- . ipal Corporations 674-716 CHAPTER 9. 318-349. The Municipal Charter 7^7-775 CHAPTER 10. 350-389. The Nature, Construction and Exercise of General Corporate Powers 776-861 CHAPTER 11. 390-410. Nature, Construction and Exercise of Special or Particular and Miscella- neous Municipal Powers '. 862-906 xiii CONTENTS BY SECTIONS VOLUME I CHAPTER 1. Sees. Pages. i-ioo. THE RISE AND PROGRESS OF MUNIC- IPAL INSTITUTIONS, THE GOVERN- MENT OF MODERN CITIES, COM- PLEX CHARACTER OF MUNICIPAL ADMINISTRATION AND SUGGES- TIONS FOR IMPROVEMENT 1-241 1. General consideration. 2. The ancient cities. 3. The cities and towns of the middle ages. 4. Development of municipal government in England. 5. Local government in the United States. 6. Municipal government in modern European cities. 7. Municipal administration in the United States, its nature and complex character, enumeration OF certain defects and suggestions for improve- ment. I. General Consideration. 1. How municipal institutions have influenced civiliza- tion 4-6 2. Same — eflFect on general development 6, 7 3. Same — rvalue of study of urban life 8, 9 4. Same — method of study — continuity of development 9- 11 5. Origin of communities 1 1- 13 6. Same — stages of developnient 13, 14 xiv Contents by Sections. iv Sees. Pages. 7. Same subject — the family, the tribe, the city .... 15, 16 8. Development of village communities 17-20 9. First municipal institutions 20, 21 2. The Ancient Cities. 10. Semitic cities 22, 23 1 1. Same — ^walls, gates and open places 24 12. Same — area limited — streets — water supply — gar- dens — wharves — ^government 24- 26 13. Cities of Ancient Egypt 27- 29 14. Same — Memphis 29, 30 15. Same — Thebes 3O1 3^ 16. Cities of ancient Chaldaea and Assyria — Mesopota- mia 32, 33 17. Ancient Nineveh 33 18. Other Assyrian cities 34i 35 19. Cities of Babylonia 35. 36 20 Nebuchadnezzar's Capital 36- 39 21. Borsippa — Opis — Susa — Tyre — Sidon — Jerusalem 39,40 22. Nature of Babylonian culture and fall of Babylon 40-43 23. Phoenicia — Sidon 43-45 24. Carthaginian supremacy 45-47 25. Greece 47-5° 26. The Greek City— Athens 51-53 27. The Greek Ideal of a perfect civic life $4- 55 28. Municipal institutions of ancient Rome SS» 5^ 29. Same — preponderance of cities and towns and civic communities 57i 5^ 30. City of ancient Rome and its municipal activities . . 58- 64 31. The Roman conception of a municipal corporation 64-67 xvi Mtjnicipaij Coepoeation?. 3. The Cities and Towns of the Middle Ages. Sees. i. Pages. 32. European governments from the fall of Rome to the feudal system 68, 69 33. Same — general condition of towns 69, 70 34. The feudal system and its effect on municipal insti- tutions 70-72 35. French communities during the middle ages .... 73- 75 36. Charter privileges to French communities 75- ^7 37. Commune distinguished from borough 77 >7^ 38. Medieval Flanders and Holland 7^ 39. Early German towns 78, 79 40. Municipal institutidns in early Spain 79- 82 41. Cities of ancient Mexico 82- 84 42. The Incas empire — Cuzco — Lima 84, 85 4. Development of Municipal Government in England. 43. Practical imp«)rfemce of such, knowledge 85, 86 44. General outline of local government in England . . 86- 93 45. The English municipal corporation 93. 94 46. The Teutonic farmer commonwealths planted in early England 95- 97 47. Municipal institutions in England under Roman dominion 97- 99 48. The early Englis,h borough, and its influence on lo- cal self-government * 99- 102 49. The granting of charters to communities in early England 103- 106 50. The Great Charter 106- 108 51. First municipal corporation in England^-charter to Kingston-Upon-Hull ; 108- 112 52. Subsequent granting of municipal charters 113- 115 Contents by Sections. xvii Seci Pages. 53. Control of local corporations by the crown — judi- cial forfeiture of charters 115,116 54. Purposes and effect of early English municipal cor- porations 117- 120 55. Municipal government under feudal charters in England 121, 122 56. The guilds or fraternities — struggle of the town for freedom 122- 125 57. Decadence of municipal government in England prior to the Reform Act 1,26- 129 58. The English Municipal Corporation Reform Act.. 129- 131 59. English municipal corporations under the reform act 132- 137 60. Modern English borough 137, 138 61. Grant of powers to local authorities and the meth- ods of central control 138- 140 5. Local Government in America. 62. The power of government is in the people ..;.... 141, 142 63. Origin of American institutions 142, 143 64. The three general types of local government 143, 144 65. The township and county 145, 146 66. The New England and western township contrasted 146, 147 67. The municipal corporation proper 148, 149 68. Organs of local government as public quasi-corpo- rations 149 69. Home government is the central political idea ... 149- 151 70. Local self-government is recognized under our sys- tem — its benefit 152- 156 /I. The* value of local self-government — ^views of emi- nent public men 157- 159 XViii MuNICIPAIi COEPOEATIONS. 6. Municipal Government of Modern European Cities. Sees. Pages. 72. General progress making 160- 162 73. Government of modern Prussian cities — Berlin — Hamburg 162- 167 74. Vienna , 168, 169 75. Budapest 169, 170 76. Copenhagen/ Stockholm and Christiana 171 yj. Modern municipal government in France 172- 174 78. Paris 174- 176 79. Cities of Belgium 176, 177 80. Cities of Switzerland 178, 179 81. Modern municipal problems in England — Eirming- , ham — Liverpool — Manchester 179- 182 82. London 182- 186 83. Modern municipal government in Scotland — Glas- gow, Edinburgh 187- 189 7. Municipal Administration in the United States, Its Nature and Complex Character, Enumeration of Cer- tain Defects and Suggestions for Improvement. 84. Importance of municipal government 189- 191 85. Same — rapid increase of urban population 191- 193, 86. Same — rapid increase of urban population in the United States 193- 203 87. Public and private character of municipal adminis- tration 203- 206 88. The municipal corporation is a governmental insti- tution, created to spend, not to make, money. Its purpose is political not business 207- 2ti 89. Nature and scope of municipal administration indi- ' cated 211,212 90. Elements of the problem of municipal government 213 Contents by Sections. xix Sees. Pages. 91. Attempts to improve municipal organization .... 213-216 92. Same — commission plan 217- 219 93. Same — autocratic mayor 219-220 94. The true conception of government — importance of form of municipal organization 220- 222 95. Difficulties of material improvement 223- 225 96. Education in the science of municipal government 225- 227 97. The use of public powers for private advantage. .227-230 98. Proper performance of civic obligations 230- 235 99. Failure to separate .state and national politics from local public issues 235- 238 100. State interference with municipal affairs — cities should be free and self-governing 238- 241 CHAPTER 2. Sees. Pages. 101-119. THE NATURE AND KINDS OF MUNIC- IPAL CORPORATIONS 242- 291 loi. Scope of chapter 242, 243 102. The corporation described — various definitions.. 243-245 103. The corporation is distinct from its members 245- 247 104. Elements of the corporation enumerated 247, 248 105. Common law powers of the corporation 248 106. Kinds of corporations — public and private 248- 253 107. Municipal corporation defined 253- 258 108. What included in the term "municipal corporation" 259- 265 109. The state as a municipal corporation 265, 266 1 10. Corporation for "municipal purposes" 266- 269 111. Municipal corporations distinguished from quasi- corporations 269- 272 112. How municipal corporations differ from counties 272-277 113. Municipal corporations distinguished from school districts 277- 280 114. School districts have statutory powers only ..... 280-281 XX Municipal Cobpobations. Sees. Pages. 115. The New England town contrasted with the mu- nicipal corporation 281- 285 1 16. People and place necessary to constitute a corpora- tion , 286, 287 117. Membership in a municipal corporation , 288, 289 118. Elements of the municipal corporation enumerated 289- 290 119. Origin of private municipal capacity 290,291 CHAPTER 3. Seed. Pages. 120-163. CREATION AND CLASSIFICATION OF MUNICIPAL CORPORATIONS 292-372 120. Creation in England 293- 294 121. Power to create vested in state 294- 296 122. Creation by general or special act — ^the method pre- scribed to be followed 297 123. The congress has power to create corporations. . 298 124. Creation as delegation of legislative authority... 298-300 125. Early corporations created by special acts^evil effects 300, 301 126. General incorporation laws required, and special acts usually forbidden 301- 305 127. Creation under constitutional provisions 305- 308 128. Effect of general statutes on special charters . . . 308-310 129. Special chartered cities and towns may incorpo- i> rate under the general laws 310- 312 130. Surrender of special charter and organizing under general laws — effect on municipal government 312- 314 131. Classification 314- 318 132. Advancement and reduction in class or grade ... 318-320 ORGANIZING itJNDER GENERAL LAWS, 133. Compliance with stattitory provisions in general — irregularities 320- 322 Contents by Sections. xxi Sees. Pages. 134. Same — illustrative cases 322- 324 135. Same subject 324, 325 136. Incorporation by court 325- 327 137. Same subject 327- 329 138. Separate bodies possessing concurrent jurisdiction 329 139. Necessary steps to incorporate 329, 330 140. Same — statutory provisions 330, 331 141. The petition for incorporation — sufficiency 332- 334 142. Same — qualification of signers 334, 335 143. Same — right to withdraw signatures 335, 336 144. Notice of pendency of proceedings to incorporate 336, 337 145. Hearing of application for incorporation 337, 338 146. Court order of incorporation 338, 339 147. Election on creation and change of boundaries . . 339- 341 148. Same — official action thereon 342 149. Void corporation 342, 343 150. Doctrine of implication 344- 346 151. De facto corporations 347, 348 152. State recognition 349- 351 153. Acceptance of charter 351- 354 154. Proof of corporate existence — judicial notice — • pleading 355- 357 155. Same 358-359 156. Same — how incorporation proved 359- 360 157. Same — location of corporation 360- 362 158. Questioning creation — quo warranto — certiorari.. 362-365 159. Same ^ . . 365- 367 160. Constitutional provisions 367- 368 i6i. Same — title to act — illustrative cases 368- 370 162. Same subject ; 370, 371 163. Same subject , 371, 372 xxii Municipal Cobpobations. CHAPTER 4. Sees. Pages. 164-247. LEGISLATIVE CONTROL OF MUNICI- PAL CORPORATIONS 373- 564 1. In general — ^restrictions considered and illustrated. 2. Constitutional provisions. 3. Same — classification of municipal corporations — general and special or local laws. 4. Legislative control of corporate property. 5. Legislative control of streets and highways. 6. Legislative control of funds and revenues. 7. Power of legislature to impose obligations^ control municipal contracts, put»ltc improvements and liabilities. 8. Conclusions relating to legts?lattve control. 164. Importance of the subject 376- 378 165. General legal doctrine stated 378- 383 166. Legislature may exercise compulsory authority in state affairs 384 167. Limitations of legislative control exist 384- 386 168. Same subject — ^Judge Cooley's view — confined to the corporation as an agency of the state in its government 386, 387 169. Same subject — certain limitations specified 387- 389 170. The limit of legislative control is to be determined, if at all, by the adjudicated cases 389, 390 171. Local self-government is recognized and sought to be perpetuated by state constitutions 390, 391 172. Legislative interference — evasion of constitutional limitations 391- 394 173. Municipal affairs defined and distingni'-'^-d from state functions 395- 397 Contents by Sections. xxiii Sees. Pages. 174. Same subject 397> 398 175. Same — relations in whicli subject has been consid- ered 399 176. Right of municipal corporation to select local offi- cers 399- 403 177. State may regulate selection of municipal officers 403-405 178. Municipal officers distinguished from state officers — state officers illustrated 406- 407 179. Same — ^municipal officers defined and illustrated . . 408-419 180. Same — illustrative cases of state and municipal of- ficers 410- 414 181. Police recognized as agency of state 414- 416 182. Legislative control of officers and their functions illustrated 417- 421 183. Same 421- 422 184. Legislature may change corporate boundaries ...423,424 2. Constitutional Provisions. ~ 185. General constitutional limitations of legislative power relating to municipal corporations 425- 428 186. Constitutional limitations of powers of counties and municipal corporations 428- 430 187. Special and local laws relating to municipal corpo- rations where a general law can be made appli- cable 430- 433 188. The legislature shall not regulate the business or internal affairs of municipal corporations 434- 436 189. Same — by commissions 436- 445 190. "Corporate powers" or "municipal purposes" can not be conferred or created by special laws 446- 450 191. Uniform system of local government is usually re- quired 451-453 xxiv Municipal Coepobations. Sees. Pages. 192. Same — illustrative cases 453, 454 193. "Laws of a general nature shall have a uniform operation throughout the state" 454, 455 194. Legislative control of cities with constitutional charters 455' 458 195. Special constitutional provisions forbidding legis- lative control 458, 459 196. Additional constitutional provisions as a remedy against improper legislative interference sug- gested , 459, 460 3. Same— Classification of Municipal Corporations — Gen- eral AND Special or Local Laws. 197. Classification of municipal corporations authorized and described 460, 461 198. "General law," "public law," "special law," and "local law" defined and distinguished 461, 462 199. Same subject 463- 465 200. Tests to distinguish general from special or local law i 465- 467 201. Same subject 467 202. Judicial methods of testing classification 468, 469 203. Same subject 469, 470 204. Population as a basis for classification 471- 472 205. Act applicable to one city or object only 472- 474 206. Same — illustrative cases 474- 476 207. Tests of classification — illustrative cases 476- 478 208. Same subject — justification for and relation of, classification to purpose of the legislation 478- 481 209. Cases illustrating general laws as distinguished from special or local laws 482- 484 210. Laws applicable to municipal corporations of a class i 484, 485 Contents by Sections. xxv Sees. Pages. 211. The legislature cannot divide or add classes .... 485,486 212. Special or local laws to take effect on event of fu- ture contingency or within limited time 486- 492 213. Same — ^local option laws 492- 494 ^14. Curative acts as special or local laws 494, 495 215. Laws to give e^ect to constitutional provision$. . 496 216. Indirect or legislative amendment of municipal charters 496, 497 217. Changing special municipal charters 497 218. Summary of principles applied to test the validity of classification , 498, 499 4. Legislative Control of Corporate Property. 219. Legislative control of corporate property — general consideration 500- 503 220. Same — ^water works 503- 505 221. Same — ^parks 506 222. Same — ^wharves , 507 223. Same — ferry franchises 507- 509 224. Same — ^miscellaneous corporate property 509-511 225. Same — transfer to another class of public officers 511,512 226. Same — ^general doctrine stated 512,513 5, Legislative Control of Streets and Highways. 227. Legislative control of streets is paramount 514- 518 228. Power delegated to municipal corporations to reg- ulate streets 518-521 229. Same — right is public 522- 524 6. Leglslative Control of Funds and Revenues. e 230. Legislative control of funds and revenue 524, 52 23-1. Same subject 526- 5-^" xxvi Municipal Cobpobations. Sees. Pages. 232. Same — illustrative cases 528- 530 233. Revenue derived as a private corporation — trust funds 530 7. Power of Legislature to Impose Obligations, Control Municipal Contracts, Public Improvements and Lia- bilities. 234. Power of legislature to impose obligations 531- 533 235. Same subject 533- 534 236. Legislative power to compel the levy of taxes . , 535, 536 237. Compelling payment of claims 536, 537 238. Same subject 538,539 239. Legislative control of municipal contracts 540- 542 24c. Same subject — hours of labor — ^validating contract 542- 544 241. Legislative control of public improvements 544 242. Legislative control of municipal liabilities 545 8. Conclusions Relating to Legislative Control. 243. Reason and effect of legislative interference with local affairs 546-551 244. Result of absence of affirmative constitutional pro- visions protecting the right of local self-govern- ment 551- 553 245. Constitutions limit and restrain govetrnmental ac- tion in the protection of the people in the enjoy- ment of recognized pre-existing rights and pow- ers 553- 558 246. Right of local self-government exists without ex- press constitutional provision 558- 560 247. Summary of principles applicable to legislative control 561- 564 CoNTJiNTS BY Sections. rxyii CHAPTER 5. Sec* Pages. 248-254. CORPORATE NAME 565- 576 248. Name necessary — ^how acquired 565- 567 249. Usual style of name 567 250. Misnomer or variation — illustrations 568- 571 251. Actions — ^variance 571, 572 252. Same 572,573 253. Same — amendment 574 254. Change of name 574- 576 CHAPTER 6. Sees, Pages. 255-258. CORPORATE SEAL 577- 583 255. Use of seal in general 577, 578 256. ^^Tien required 57^- S^^ 257. Sufficiency of seal 581, 582 258. Proof of seal 582,533 CHAPTER 7. Sees. Pa&ss. 259-297. CORPORATE BOUNDARIES 584-673 259. Corporate limits must be fixed and certain 585- 587 260. Presumption arising from long acquiescence in the location of boundaries 5^7> 5^8 261. Construction of description of boundaries — illus- trative cases 588- 591 262. Same subject 59i> 592 263. Same — reference to bodies of water 593- 593 264. Two public corporations in the same limits 596- 598 265. Power of state in establishing and changing muni- cipal boundaries 59^- 602 266. Special acts affecting boimdaries generally forbid- den 602, 603 xxviii Municipal Corpoeations. f^PCS. , Pages. 1267. Enlargement of boundaries by annexation of terri- tory — restrictions 603- 606 268. Various methods of extending limits and annexing territory 606, 607 269. Same — submission of questions to inhabitants of property owners * 608- 611 270. Discretion in submitting question of extension to ^ vote i 612, 613 271. Corporate limits changed by municipal corporations or local tribunals — delegation of legislative power 613- 617 272. Conditions of annexation — what territory may be included — general doctriije 617- 620 273. Same— definitions of "platted," "lots," "blocks".. 621-623 274. Reasonableness of annexation — in general — illus- trative cases 624, 625 275. Same subject 625- 627 276. Reasonableness of annexation — contiguous or ad- jacent territory 627- 629 277. Same — farm lands ^ 629, 630 278. Same subject 631- 633 279. Detachment of municipal territory 633- 636 28a Annexation pending proceedings to organize the same territory as a municipal corporation is void . . . r 636 281. Proceeding to annex or detach territory — in gen- eral 636- 639 282. Same — sufficiency of ordinance 639,640 283. Same — requisites and sufficiency of notice 640, 641 284. Same — sufficiency of petition — illustrative cases.. 641-645 285. Same — ^plat or plan of property to be annexed to petition 645, 646 286. Same — the evidence , 646- 648 287. Same — the judgment or order 648, 649 Contents by Sections. xxix Sees. Pagf s. 288. Same — action to test validity of proceeding 649, 650 289. Same subject — presumptions — acquiescence 651-653 290. Same — collateral attack on annexation proceedings 653- 657 2QI. Same — review 657- 659 292. Defects may be cured 659 293. Effect of changing of limits in general — illustrative cases 659- 662 294. Condition of public property and debts after change — apportionment 662- 665 295. Taxation and exemptions on change of limits . . 665- 668 296. Municipal subdivisions and wards 668-671 297. Same subject 671- 673 CHAPTER 8. Sees. Pages. 298-317. DISSOLUTION AND RE-ORGANIZA- TION OF MUNICIPAL CORPORA- TIONS 674-716 1. Grounds of dissolution and how accomplished. 2. Effect of dissolution and reorganization. T. Grounds of Dissolution and How Accomplished. 298. What changes will not constitute dissolution .... 675 299. Annexation or consolidation destroys 675- 678 300. Repeal of charter may destroy 678- 680 301. Inhabitants may not dissolve — nonuser 680-682 302. Failure to elect officers will not dissolve 682- 684 303. Failure to elect officers dissolves when statute so provides 684, 685 304. May be dissolved only by state-method 685- 688 305. Dissolution under the English law 688, 689 306. Dissolution under the Roman law 689 307. Statutes providing for dissolution 689- 691 308. Courts have no inherent power to declare forfei- ture of charter 691, 692 XXX Municipal Cobpobations. Sees. Pages. 2. Effect of Dissolution and Re-organization. 309. Effect of judgment of ouster on quo warranto . . 692, 693 310. Rights of creditors of extinct corporation pro- tected — common law rule rejected 693- 697 311. Dissolution of illegal corporation de jure successor 4 liable 697, 698 312. Extinguishing by dividing — legislative apportion- ment of property and debts 698- 700 313. Same — ^illustrative cases 701- 703 314. Absorption by annexation or consolidation 703- 705 315. Dissolution and re-organization — new is successor of old, when 706- 711 316. Same — suspension of governmental functions — re- vival 71 I- 713 317. Dissolution without substitution 714- 716 CHAPTER 9. Sees. Pages. 318-349. THE MUNICIPAL CHARTER 717- 775 1. General consideration. 2. Municipal organization of St. Louis. 3. Charters of various cities — Chicago, San Fran- cisco, Los Angeles, Greater New York, Galveston AND Des Moines, 4. Proof, construction and amendment of charters. I. General Consideration. 318. Nature and purpose of charter 718- 720 319. Various definitions of charters 720, 721 320. Municipal charter defined and described 721, 722 321. Same subject — contains the municipal powers and prescribes the form of organization 722- 725 Contents by Sections. xxxi Sees. Pages 322. Same — the scope of the functions of municipal gov- ernment 725 323. Constitutional and legislative municipal charters . 726- 728 324. Special municipal powers in California 728 2. Municipal Organization of St. Louis. 325. Characteristic features of a constitutional charter —St. Louis 729- 731 326. Same — general outline of municipal government and relation of the city to the state 732, 733 327. Powers and responsibility of officers under the St. Louis charter 733- 735 328. Mayor authorized to approve only such appointees as mentioned in the charter 735, 736 329. Department of public improvements — approval of appointees 736, 737 330. Same — ^legislative interpretation of president's supervision 737, 738 331. Mayor's general supervisory control 738, 739 332. Conclusions as to approval of appointees in the de- partment of public improvements 739- 741 333. General functions of the council 741 334. The house of delegates 741, 742 335. Should the mayor be given ..lore power ? 742, 743 3. Charters of Various Cities — Chicago, San Francisco, Los Angeles, Greater New York, Galveston and Des Moines. 336. Municipal organization of Chicago 744- 747 337. Charter of San Francisco 747- 749 338. Charter of Los Angeles 749" 75^ 339. Municipal organization of Greater New York 751- 756 xxxii Municipal Cobpobations. Sees. Pages/ 340. Commission plan — Galveston 756- 758 341. The Des Moines plan of city government 758- 760 4. Proofs, Construction and Amendment of Charters. 342. Proof of charter — ^judicial notice 760, 761 343. Construction of charter 761, 762 344. Same subject 763- 765 345. Legislature may amend and repeal municipal char- ters 765- 767 346. Direct amendment of constitutional charters 767- 769 347. Same subject 769- 771 348. Indirect or legislative amendment of constitution- al charters 771- 773 349. Amendments forbidden by special or local laws . . 773- 775 CHAPTER 10. Sees: ' Pages. 350-389. THE NATURE, CONSTRUCTION AND EXERCISE OF GENERAL CORPO- RATE POWERS 776-861 1. General consideration. 2. Implied or incidental powers. 3. Execution of powers. ' 4. Powers of New England towns. I. General Consideration. 350. Scope of charter tjj, 778 351. Usual powers 778, 779 352. General rule as to municipal powers stated .... 779- 785 353. Rules of construction . ., 786- 788 354. Same subject — reasonable construction 788- 790 Contents by Sections. xxxiii Sees. Pages. 355. Effect of specific enumeration of powers illustrated in the enactment of ordinances 791, 792 356. Construction of power "to regulate" 792, 793 2. Implied or Incidental Powers. 357. General rule as to implied or incidental powers stated 794- 796 358. Implied powers are confined to municipal affairs . . 796- 798 359. Cannot engage in private business , 798 360. Implied power to enact ordinances 799, 800 361. Implied powers respecting offices and officers . . 800- 802 362. Implied powers as to police and sanitary regula- tions 802 363. Appropriations as donations forbidden 803, 804 364. Appropriations for celebrations, entertainments, etc., void 804- 806 365. Bounties to soldiers 806- 809 366. Expenditures to obtain or oppose legislation .... 809, 810 367. Miscellaneous illustrations of implied powers 810- 813 368. Same subject 814, 815 369. Exercise of powers by virtue of usage or custom . . 815- 817 370. Same subject 817- 819 3. Execution of Powers. 371. Method of exercise of powers 819- 821 372. Same subject 821- 823 373. When ordinance necessary to exercise power .... 823, 824 374. Same subject — legislative or executive powers . . 824 375. Same subject — self-enforcing charter provisions 825 376. Judiciary will not control the exercise of discre- tionary powers 826, 827 377. Same subject 827- 830 378. Limitation of rule of non-judicial interference .. 831-833 xxxiv Municipal Cobpoeations. Sees, Pages. 379. Same subject 833- 835 380. Distinction, between mandatory and discretionary powers , 836 381. Same subject 837- 838 ^82. Public powers cannot be surrendered or delegated 839- 842 383. Powers and duties imposed 'upon particular de- partments or officers cannot be delegated ..... 843- 846 384. Legislative authority cannot be delegated 846- 848 385. Same — illustrations 848- 850 386. Same subject 850- 852 387. Ministerial duties may be delegated 852- 854 Powers of New England towns. 388. Powers of New England towns 855- 857 389. Illustrative cases of powers of New England towns 857- 861 CHAPTER 11. Sees. Pages. 390-410. NATURE, CONSTRUCTION AND EXER- CISE OF SPECIAL OR PARTICULAR AND MISCELLANEOUS MUNICIPAL POWERS .- 862-906 390. Scope of charter 862 391. Rewards for offenders against municipal regula- tions 863- 866 392. Party walls 866- 870 393. Subscription to stock of private corporations .... 871- 874 394. Same — constitutional prohibition J 875 395. Same — grant of power — restrictions and construc- tion 875- 879 396. Sale of liquor — dispensary laws 879 397. Nature of wharves and power to construct and control 880- 883 Contents by Sections. sxxv Sees. Pages. 398. Lands on navigable waters are held in trust for the public — state may grant control to municipal corporations 883, 884 399. Wharves — ownership of land 884, 885 400. Municipal corporation cannot abdicate control of wharves 886 401. Batture 887 402. Power to charge and collect wharfage 887, 888 403. Same subject — nature of wharfage 888-890 404. Wharfage charge as an interference with interstate commerce 891 405. Wharfage distingtiished from tonnage 891,892 406. Character of public ferries 892- 897 407. Lease and operation of ferries 897, 898 408. License and taxation of ferries, etc. 898, 899 409. License for privilege of navigation — regulating or interfering with foreign or interstate commerce 899-901 410. Power to construct and maintain municipal bridges over navigable waters 902- 906 A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS. CHAPTER 1. THE RISE AND PROGRESS OF MUNICIPAL INSTITUTIONS, THE GOVERNMENT OE MODERN CITIES, COMPLEX CHAR- ACTER OF MUNICIPAL ADMINISTRATION AND SUGGESTIONS FOR IMPROVEMENT. 1. General Consideeation. 2. The ancient cities. 3. The cities and towns or the Middle Ages. 4. Development or municipal government in England. 5. Local government in the United States. 6. Municipal government in modern European cities. 7. Municipal administration in the United States, its natubb and complex character, enumeration of certain DEFECia and suggestions for improvement. 1. general consideration. Sec. Sec. 1. How municipal institutions 5. Origin of communities. have influenced civilization. 6. Same — stages of development. 2. Same — effect on general de- 7. Same subject — the family, velopment. the tribe, the city. 3. Same — value of study of 8. Development of village com- urban life. munities. 4. Same — method of study — 9. First municipal institutions. continuity of development. 2. the ancient cities. Sec. Sec. 10. Semitic cities. 13. Cities of ancient Egypt. 11. Same — walls, gates and open 14. Same — Memphis. places. 15. Same — Thebes. 12. Same — area limited — streets 16. Cities of ancient Chaldea and — water supply — gardens^ Assyria — Mesopotamia, wharves — government. 17. Ancient Nineveh. (1) Municipal Coepobations. Sec. 18. Other Assyrian cities. 19. Cities of Babylonia. 20. Nebuchadnezzar's capital. 21. Eorsippa — Opts — Susa — Tyre- — Sldon — Jerusalem. 22. Nature of Babylonian culture and fall of Babylon. 23. Phoenicia— Sidon. 24> Carthaginian supremacy. 25. Greece. 26. The Greek City— Athens. Sec 27. The Greek ideal of a perfect civic life. 28. Municipal institutions of an- cient Rome. 29. Same — preponderance of cities and towns and civic communities. 30. City of ancient Rome and Its municipal activities. 31. The Roman conception of a municipal corporation. 3. THE CITIES AND TOWNS OF THE NJDBtSB AGES. 32. European governments from the fall of Rome to the feudal system. 33. Same — general condition of towns. 34. The feudal system and its ef- fect on municipal institu- tions. 35. French communities during the middle ages. 36. Charter privileges to French communities. 37. Commune distinguished from borough. 38. Mediaeval Flanders and Hol- land. 39. Early German towns. 40. Municipal Ipstitutions in early Spain. 41. Cities of ancient Mexico. 42. The Incas empire — Cuzco — Lima. 4. DEVELOPMENT OT MTTNICIPAL OOVEBNMENT IW KNOIAND. 43. Practical importance of such knowledge. 44. General outline of local gov- ernment in England. 45. The English municipal cor- poration. 46 The Teutonic farmer com- monwealths planted in early England. 47. Municipal institutions in Eng- land under Roman domin- ion. 48. The early English borough, and its influence on local self-government. 49. The granting of charters to communities in early Eng- land. 60. Th^ Great Charter. 51. First municipal corporation in England — charter to Kingston-upon-Hull. 62. Subsequent granting of mu- nicipal charters. 63. Control of local corporations by the crown — judicial for- feiture of charters. 64. Purposes and effect of early English municipal corpora- tions. 65. Municipal government under feudal charters in England. ElSE AND PkOGEESS. Sec. 56. The guilds or fraternities — struggle of the town for freedom. 57. Decadence of municipal gov- ernment in England prior to the Reform Act. 58. The English Municipal Cor- poration Reform Act. Sec. 59. 60.^ 61. English municipal corpora- tions under the Reform Act. Modern English borough. Grant of powers to local au- thorities and the methods of central control 6. LOCAI, GOVERNMENT IN AMERICA. Sec. 62. The power ot government is in the people. 63. Origin of American institu- tions. 64. The three general types of local government. 65. The township and county. 66. The new England and west- ern township contrasted. 67. The municipal corporation proper. Sec. 68. Organs of local government as public quasi-corpora- tions. 69. Home government is the cen- tral political idea. 70. Local self-government is rec- ognized under our system— i its benefit. 71. The value of local self-govern- ment — views of eminent men. 6. MUNICIPAL GOVERNMENT OF MODERN EUROPEAN CITIES. Sec. 72. General progress making. 73. Government of modern Prus- sian cities — Berlin — ^Ham- burg. 74. Vienna. 75. Budapest. 76. Copenhagen, Stockholm and Christiania. 77. Modern municipal govern- ment In France. Sec. 78. Paris. 79. Cities of Belgium. 80. Cities of Switzerland. 81. Modern municipal problems In England — Birmingham — Liverpool — ^Manchester. 82. London. 83. Modern municipal govern- ment in Scotland — Glasgow, Edinburgh. 7. MUNICIPAL ADMINISTRATION IN THE UNITED STATES, ITS NATURE AND COMPLEX CHAEACTEE, ENUMERATION OF CERTAIN DEEECTB AND SUG- GESTIONS FOR IMPROVEMENT. Seo. 84. Importance of government Sec. municipal 85. Same — rapid increase urban population. ot Municipal Coepoeations. §1 Sec. 86. Same — rapid Increase of urban population In the United States.' 87. Public and private character of municipal administra- tion. 88. The municipal corporation Is a governmental institution, created to spend, not to make, money. Its purpose Is political not business. 89. Nature and scope of munic- ipal administration indi- cated. 90. Elements of the problem of municipal government. 91. Attempts to improve munic- ipal organization. 92. Same — commission plan. 93. Same — ^autocratic mayor. Sec. 94. The true conception of gov- ernment — importance of form of municipal organi- zation. 95. Difficulties of material im- provement. 96. Education in the science of municipal government. 97. The use of public powers for private advantage. 98. Proper performance of civic obligations. 99. Failure to separate state and national politics from local public issues. 100. State interference with mu- nicipal affairs — cities should be free and self- governing. 1. GENEBAIi CONSIDEKATIOS". § 1. How municipal institutions have influenced civiliza- tion. The effect on civilization of the formation of munic- ipal communities has been of dominating importance. The existence of municipal institutions has controlled the destinies of mankind to a greater extent, perhaps, than any other factor in the development and advance- ment of the human race. Thoughtful writers agree that the history of civili- zation is largely the history of a few cities. The lead- ing city has ever been the type of human progress. It is and always has been the center of wealth; of polit- ical, industrial and commercial power; of poverty, squalor and human weakness; of education, virtue and morality; of ignorance, vice and crime. It is a truism that there has been no great people without its great metropolis. In the ancient civiliza- § 1 Influence on Civilization. ,5 tions the destruction or subjugation of a city, and some- times, even the mere passing of authority from one city to another, usually marked the commencement of a new era in governmental development. After the fall of the Roman power and the disorder which followed, the formation or organization of com- pactly settled communities into bodies corporate and politic, and granting to them the privileges of munici- pal or local jurisdiction, "contributed more than any other cause to introduce regular government, police and arts, and to diffuse tliem over Europe."^ And the institution of municipal corporations is said by the philosophic historian, Dr. Eobertson, to have conduced more than any other circumstance to the emancipation of Europe from the thralldom of the Feudal System.^ That it did conduce much to this great event-, observed Willcock, cannot be denied.' As aptly put by an English writer of the early part of the last century: Cities and boroughs, when in- vested with corporate rights and uncontaminated by corruption have been uniformly found an impregna- ble bulwark of popular government. Such communi- ties, in a well-constituted state, essentially contribute 1. People V. Morris, 13 Wend, ileges, may be attributed. In somti (N. Y.) 325, 334, per Nelson, J.; considerable degree, the introduc- 1 Hallam, Middle Ages, pp. 78-80. tion of regular government and Benefit of municipal corpora- stable protection, after Europe tions. "They afforded protection had, for many ages, been deprived, to commerce and the mechanic by the inundation of the barbar- arts, and formed some counter- ians, of all the civilization and poise to the exorbitant powers science which had accompanied and unchecked rapacity of the the Roman power." 2 Kent Com. feudal barons. By this means, (14th Ed.), pp. 270, 271. order and security, industry, 2. Robertson, History of trade and the arts revived in Charles V, Vol. 1 (8th Ed.), p. 28. Italy, France, Spain, Germany, 3. Willcock, Municipal Corpo- Planders and England ; and to the ration, ch. 1, Historical Sketch of institution of civil or political cor- Municipalities, p. 1. porations, with large charter priv- 6 Municipal Coepobations. § 2 towards tlie maintenance of tranquillity, tlie security of property, the encouragement of industry and the preservation of puislic freedom.* § 2. Same — effect on general development. The relation of urban growith to national progress has been widely discussed by general, and partiem- larly philosophi^ial, writers, but divergent views still prevail.' In Egypt, in Mesopotamia and in other ancient east- em nations, and, also in the west, especaally in early Greece and Rome, the cities were the centers of pro- gress and culture. In the country districts and sparse- ly populated regions icnide methods of life prevailed and civilization was not advanced." And in the nations of Western Europe the urban centers demonstrated the highest and best development in the arts, the ■culture, the refinement, the commercial and industrial activi- ties of the people. Urban life and dense populations afford the best op- portunities to attain the highest intellectual standards. Constant contact of mind with mind stimialates and pro- duces mental energy, develops and strengthens the in- tellect and inculcates the spirit of emulation. In the hunter, in the nomadic state, and even in pastoral life, intellectual progress halts and stumbles.'' 4. Glover on Mun. Corp. (writ- Government (D. Appleton & Co., ing In 1837), Historical Sum- New York), ch. 1, p. 1. mary, p. VXI. Dr. Bowe's work is a valuable 5. Relation of city growth to contribution to the .literatuEe ol general progress. "In ©very sys- the past decade on municipal ,gov- tem of social philosophy from ernment and administration. Aristotle to Spencer the relation of 6. W. W. Fowler, The City- city growth to national progress State of ihc Greeks and Ramans, has occupied an important place. This wori is well prepared and While the diversity of Interpret*- possesses much merit. tion becomes less marked with 7. "The conditions of pastoral the more recent writers, they are and migratory life," says Dr. Mc- still far from a consensus of opln- Curdy, "are at once too simple Ion." Rowe, Problems of City and too fluctuating to admit of § 2 Influence on General Development. Whatever may be said in favor of the quietude of the rural district as tending to produce calmness of thought, clear reflection and deep meditation, it is true, nevertheless, that the hum and din of the crowded ur- ban centers of population have developed the best types of civilization, as civilization is viewed in History. When in the days of old the civilized Semites ad- vanced from the life of mere keepers of sheep and cat- tle and from that of casual barterers and traders going in small groups from place to place to agricultural, commercial and industrial pursuits they began to dwell in villages and build cities and establish permanent markets, and thus they laid the foundation for the de- velopment of the intellectual, political, moral and spiritual genius of that wonderful race.* And when we find that in mediaeval times the town and city became subordinated to the barons and great landed proprietors, human progress was hardly observ- able. It was not until the centers of population be- came potential factors in the movements of the people that development in civilization and culture could be discerned." the founding of a stable society." In those communities where men 1 McCurdy, History, Prophecy and are gathered In masses and have the Monuments, par. 46, pp. 47-49. the opportunity of rapid Inter- Thls wdrk is In three volumes, is change of thought and action." readable and Intensely interesting. O'Haver v. Montgomery, 120 Tenn. 8. 1 McCurdy, History, Pro- 448, 111 S. W. 449. phecy and the Monuments, par. 35, "In an early state of things the p. 35. single city Is always In advance 9. 8 32; Mrs. J. R. Green, Town of the Kingdom, not always in Life In the Fifteenth Century; wealth or In mere bodily comforts, Wilcox, Study of City Government, but always In political freedom eh, 1. and In real sharpness of wit.", Urban centers have developed Freeman's Gen. Sketch of History, civilization. "It should be borne p. 21. in mind, as one of the lessons of In Germany the cities early be- hlstory, that the chief advances came sovereign commonwealths, in all lines of popular development acknowledging only the outward have been through the growth and supremacy of the Emperor. Free- nurture of urban life, or at least man's Gen. Sketch of History, 9. 173. Municipal, Cobpoeations. §3 § 3. Same — value of study of urban life. With the progress in all lines of human endeavor in the last and in the present century the urban centers again occupy the first place in the civilizations of the earth. The study of these centers, the occasions and impulses by which they came to attain their suprema- cy, whether commercial, industrial, intellectual or po- litical; the dominating mental and moral characteris- tics of their populations; their governments, arts, and religions; and their scope, style and vigor of thought is a study of the advancement of mankind." See Rowe, Problems of City Gov., chs. 1 and 11, where the prop- osition suggested in the text Is ■well presented. He concludes: "With these primary results of city growth in mind we can readi- ly appreciate the significance of city life in the history of civiliza- tion. It creates new economic ac- tivities, new political ideas and Ideals, new forms of social inter- course, new possibilities of inter- change of ideas. Discussion, the contract of mind with mind through which the general level of intelligence Is raised, becomes one of the prominent factors in the political life, first of a class, then of a whole people. A con- stant and ready audience is fur- nished to the orator, the poet, and the philosopher. Although it re- quired centuries to develop all these possibilities, they were in process of formation from the time the inclosing walls of the first cities were built." Rowe, Problems of City Government, ch. 1, p. 13. See observations of Dr. Good- now, v.'here he concludes that "City lile not only encourages narrowness of views, but' also favors the development of habits of submission to government. It tends to make good , subjects rather than good governors." Goodnow, City Gov. in the U. S., ch. 1, pp. 13, 14. Dr. Goodnow is among the very first writers of recent years on the subject of municipal govern- ment, municipal problems and municipal administration. His works are rich in reliable mate- rial, thoughtfully written and des- tined to exert great influence. 10. Value of study of urban life. "With the evolutionary philosophy of the present century the city is again given a position of importance among the factors of advancing civilization." Rowe, Problems of City Government, ch. 1. p. 2. "The great questions of state and national politics make more Interesting subjects for popular discussion than the dry details of municipal administration; but, after all, the questions that will touch oftenest and closest in your personal relations are questions of municipal rather than of state § 4 Study of Ubban Life. As man is the same in all ages and the community life is similar, the comparative study of urban condi- tions both descriptive and critical, is instructive. Cer- tain general rules are applicable to all alike. The mod- ern industrial community is to be developed, and the methods of providing for its needs, conveniences and comforts are almost identical in all parts of the world. Hence, careful inquiry into the causes which have brought about good urban conditions in the leading cen- ters, especially in Europe, is of immense value in solv- ing the many complex and intricate municipal problems appertaining to American communal life. Therefore, in a work treating of municipal corporation law, it would seem appropriate that some attention, although brief and imperfect, should be given to the rise and progress of municipal institutions." § 4. Same — method of study — continuity of develop- ment. In the study of the development of communities it will be well to have in mind the wise observations of Stubbs, that "the history of institutions cannot be mas- tered, — can scarcely be approached, — without an ef- fort." Moreover, that "this history presents, in every branch, a regularly developed series of causes and con- sequences, and abounds in examples of that continu- itj^ of life, the realization of which is necessary to give or national government. * • * "The problem of the city Is the We are working out a problem problem of civilization. The two that has received no attention can not be disassociated. The from the educated Intelligence of city cannot be treated as an iso- manklnd since the days of classic lated thing. It is the heart of the Greece — the problem of self-gov- nation." Howe, The British City, ernment on democratic principles ch. 1. for great bodies of people congre- 11. Angell and Ames on Corp. gated together in a single neigh- (11 Ed.), § 15, p. 8; Glover on borhood." Matthews, City Gov- Mun. Corp., Historical Summary, ernment of Boston (1895), pp. pp. XVIII, XIX; 'Willcock, Mun. 1S2-5. Corp., Introduction. 10 Municipal Cobpokations. ^ 4 the reader a personal hold on the past and a right judg- ment of the present. For the roots of the present lie deep in the past, and nothing in the past is dead to the man who will learn how the present comes to be what it is."" And Freeman, the eminent English historian, admon- ishes us that, in all our studies of history and language we must cast away all distinctions of "ancient" and "modern," of "dead" and "living," and "must boldly grapple with the great fact of the unity of history." He declares that, as man is the same in all ages, the history of man is one in all ages; and therefore, "no language, no period of history, can be understood in its fullness; none can be clothed with its highest in- terest and its highest profit, if it be looked at wholly in itself, without reference to its bearing on those other languages, those other periods of history, which join with it to make up the great whole of human, or at least of Aryan .and European, being." ^' 12. 1 Stubbs, Constitutional body themselves, independently of Hist, of Sng., Preface. particular men, in a material 13. Edward A. Freeman, The record, which Is crystallized in in- Unity of History (The Rede Lect- stitutlons, usages and, customs, ure), University of Cambridge, and preserved in inventions and May 24, 1872. discoveries. Continuity of deveiopment. "Historians, from a sort of ne- See also on proposition of con- cessity, give to individuals great tinuity of development Dr. Wood- prominence in the production of row Wilson, The State, Sees. 1352, events; thus placing persons who 1353. are transient, in the place of prln- M. Guizot presents clearly the ciples which are enduring. The unity of the principle of civillza- work of society in its totality, by tion. Guizot, History of Civiliza- means of which all progress oc- tion. Vol. 1, Lect. 2. curs, is ascribed far too much to "The history of the human race individual men, and far too little is one in source, one in experience to the public intelligence. It will and one in progress." Morgan, be recognized generally that the Ancient Society, Preface. substance of human history is Human liistory, In substance, bound up in the growth of ideas Is the growth of Ideas. "It for- which are wrought out by the tunately so happens that the people and expressed in their in- events of human progress em- stitutions, usages, Inventions and §5 Obigin op Communities. 11 However, it is well to remember, as suggested by Fustel de Coulanges, that the laws of human associa- tion in modem times differ from those of antiquity, because to some extent there has been a change in man. He does not think as he did twenty-five centuries ago; and this is why he is no longer governed as he was governed then." § 5. Origin of communities. "Our wondrous civilization is the result of the silent efforts of millions of unknown men."^* Dr. Morgan asserts that "mankind commenced their career at the bottom of the scale and worked up,"" which says Whitney, "modern science claims to be proving by the most careful and exhaustive study of man and his works."" Compact aggregations of people ante-date the forma- tion of states or general governments. In the earliest movements of the human race, history finds gatherings of people. Man has ever been gregarious by nature and he naturally sought the society and fellowship of discoveries." Morgan, Ancient pletely dies for man. Man may Society, part 2, Ch. 9, p. 302. lorget it, but he always preserves "Among the original germs of It within him. For, take him at thought, which have exercised the any epoch, and he is the product; most powerful Influence upon the the epitome of all the earlier human mind, and upon human epochs. Let him look into his destiny, are these which relate to own soul, and he can And and government, to the family, to Ian- distinguish these different epochs guage, to religion, and to property, by what each of them has left They had a definite beginning far within him." Fustel de Coulan- back in savagery, and a logical ges. The Ancient City, Introduo- progress, but can have no final tion. consummation, because they are 15. Dr. J. Kaines, Anthropolo- still progressing, and must ever gla. Vol. 1, No. 2, p. 233. continue to progress." Morgan, 16. Morgan, Ancient Society, Ancient Society, part 2, ch. 1, p. part 1, ch. 2. 61. 17. Whitney, Oriental and Lln- 14. The past never dice, guistlc Studies (First Series), p. "Fortunately, the past never com- 341. 12 Municipal CoRPOBATiONS. §5 — . - » his kind. From association into somewhat rude and formless centers of population grew the necessity of regulations. Certain forms of organization were evolved, the greater degree of compactness demanding better rules or regulations for harmonious government. Here the fundamental germ of civilization began. At first it is probable that the coming together was in bands or tribes and at a later day, clans. Cicero and other ancient writers inform us that, there was a time when men wandered everywhere through the iaelds after the manner of beasts, and supported life by eating the food of beasts." Dr. Morgan declares that, in all the tribes of mankind savagery preceded barbarism, as barbarism is known to have preceded civilization; that the principal in- stitutions of man originated in savagery, were devel- oped in barbarism and are maturing in civilization; that throughout the latter part of the period of savag- ery and the entire period of barbarism, mankind in all parts of the ancient world upon all the continents were organized into gentes, pJiratries and tribes, which were the means by which, ancient society was held together; and that their structure, and relations as members of an organic series, and the rights, privileges and obli- gations of the members of the gens, of the phratry and tribe illustrate the growth of the idea of government in the human mind.^* 18. Diodorus, Lucretius, Hor- peculiar to Itself. Morgan, An- ace, Pliny, Juvenal and other an- cient Society, part 1, ch. 1. cient ■writers assert this to be Early dwellers in Egypt used true. rude stone implements and prac- 19. Morgan, Ancient Society, tised savage customs. West, An- Preface VI. cient World, p. 1. Origin of communities. The Tribal life among the early Ethnical periods, indicated by the Britons, 18 Historians' Hist, of the terms "age of stone," "of bronze" World, pp. 3, 4. and "of iron," first employed by Stages of development from the Danish archaeologists, represent a Stone Age to the Iron Age. Mor- distinct condition of society di?- gan's Ancient Society, part 1, ch. tinguishable by a mode of life 1. pp. 9-13. § 6 Stages of Development:. _ The first idea of government belonging to ancient so- ciety was a social organization {societas) founded upon the gentes, phratries and tribes. The second idea of government belonging to modern society was a politi- cal organization {urbs and civitas) founded upon terri- tory,^ and property developed later. Under the first, the individual was governed through his relations to the gens, the phratry and the tribe; whereas, under the second, through his relations to territory .2" According to the book of Genesis man first appeared on the earth in the year 4,004 B. C. Certain writers assert that the pyramids in Egypt were builded some one thousand years anterior to this time; others be- lieve that a state of civilization existed in Chaldea some sis thousand or seven thousand years B. C. Not only in Egj-pt and Chaldea were established populous cen- ters at the date named in Genesis, but it appears that about this time in China and India man had made con- siderable progress in culture.^* § 6. Same — stages of development. In the progress of man four chief stages of develop- ment or culture may be noted; first, the hunter; second, the nomad; third, the settler, or commencement of agri- cultural life, when actual civilization begins; and fourth, the town or city builder.^^ 20. Morgan, Ancient Society, "The earliest cities of Palestine part 2, ch. 2, p. 62. east and west of Jordan, and tlio-3 21. "The existence of mankind of Lower Babylonia, and even extends backward immeasurably, those of Mesopotamia, had long and loses itself in a vast and pro- been established when their old- found antiquity." Morgan, An- est surviving monuments were cient Society, Preface; lb., part 3, made." 1 McCurdy, History, Pro. ch. 6, p. 508. phecy and the Monuments, Book 1, A rich and productive civiliza- par. 47, pp. 49, 50. tion flourished for at least five 22. The four stages of develop- millenniums before Christ on the ment or culture are elaborated in banks of the lower Nile. James detail by Ragozin in his History Henry Breasted, Ancient Records of Chaldea, pp. 118 to 127. of Egypt. 14 MUNICIPAli COEPOEATIONS. ^ 6 Of course, we know that the nomadic pastoral life of ancient nations is well illustrated in the book of Gen- esis in the account of the wanderings of Abraham and the other Hebrew patriarchs; ^^ and that the Bedouin Arabs of our own day in the deserts of Arabia and North- em Africa exhibit this character of life. The most recent researches ipto the primitive history of society, as Maine and other reliable investigators in- form us, point to the conclusion that the earliest tie which knitted men together in communities was con- sanguinity or kinship, real or assumed.** Philosophical writers observe, Maine says, that a moral brother- hood in the whole human race has been steadily gain- ing ground during the whole course of history, and the large abstract term is now comprehended in the word "Humanity." Undoubtedly, religion has been a most powerful instrumentality which has superinduced what this eminent writer characterizes as "this broader and laxer view of kinship." The only brotherhood, he as- serts, accepted by our savage forefathers was actual consanguinity. If a man was not of kin he was an enemy to be slain, spoiled or hated, and "the dogs which fol- lowed the camp had more in common with it than the tribesmen of an alien and unrelated tribe." When a tribal community settled down finally upon a definite space of land, the land begins to be the basis of society in place of kinship.** Ratio of human progress, see been used by the common ances- Morgan, Ancient Society, part 1, tors of all." 1 McCurdy, History, ch. 3. Prophecy and the Monuments, par. 23. "The nomadic origin of the 21, p. 22. S&mites is attested by words re- 24. See Morgan, Ancient So- lating to the life and association ciety, part 2, ch. 2. of nomads (e. g., 'sheep,' 'sheperd,' 25. Maine, Early Hist, ot In- 'camel,' 'bow,' 'arrow') which are stltutions, Lect. Ill, pp. 64, 65, 72. found in all the dialects of the See Jacobus, Standard Bible race, and must therefore have Diet., tit. "Tribe, Tribes " § 7 Family : Teibe : City. 15 § 7. Same subject — the family, the tribe, the city. Tribal form of social organization (societas) pre- vailed in Israel until supplanted by the monarchy. It is mentioned in the Apocalypse of the New Testament.''® It has its source in the twelve sons of the Patriarch Jacob, the progenitor of the race. Moses recognized it in his legislation and endeavored to perpetuate it, as ex- hibiting in its form and essence the foundation scheme of local self-government.^^ Similar institutions existed in ancient Arabia. The council of elders of the Israelites ** correspond with the "divan" of the Arabs. The basic unit was the clan, and a tribe was constituted by the union of several clans. A community (eleph) or association was com- posed of many (thousand). The word for clan in the Old Testament " mishpahak" is translated "family," The clan consisted of "houses" or "father's houses." The leaders were termed princes or rulers,** heads,*" or chiefs, but the common title is "elder;" in Arabic, "sheik." ^^ Among the ancient Greeks and Romans, the family, the tribe, the city, is the order of progress noted by Fustel de Coulanges. Several families formed the phra- try, several phratries the tribe, several tribes the city. "Family, phratry, tribe, city, were, moreover, socie- ties exactly similar to each other which were formed one after the other by a series of federation. • • * The city was not an assemblage of individuals; it was a confederation of several groups which were established before it and which it permitted to remain." *» 26. Revelation, VII, B-8. were united Into a tribe, several 27. Morris, Hist. Development tribes might associate together on ol the Law, p. 37. the condition that the religion of 28. Numbers XI, 16. each should be respected. The day 29. Exodus, XXXIV, 31. on which this alliance took place 30. Numbers 1, 16. the city existed." 31. Jacobus, Standard Bible "Civitas and urbs, either of Diet., tit. "Tribes." which we translate by the word 32. "just as several phratries city, were not synonymous words 16 Municipal Cobpoeations. ■§ 7 It is believed tliat in Egypt the inhabitants were an- ciently divided into various clans, each with a patri- arch as chief, who probably also served as the priest of the deity of the tribe. When the wandering or no- madic mode of life gave way to definite settlements and permanent abodes, here, as among other ancient races, the territorial tie strengthened, and, as a result, the bonds of kindred were relaxed. "The patriarch was transformed into a chieftain or prince, his tent became a temple, and he fell into the possession of the best land and largest herds. Thus arose small cantons with their several deities." ^* The massing of people in centers for convenient dis- tribution and exchange follows naturally a civilization that has developed even in a slight degree traffic and industry. Here town and city building begins. The greater the development of trade, methods of transpor- tation, and commerce, the more populous become these centers, and the more complex their social relations and governmental organization. Obviously this is in ac- cordance with the mandate of a fundamental economic law.** among the ancients. Civitas was decisive step towards civilization, the religious and political associa- recognized as such by the Bible tion of families and tribes; uibs ilself. (Gen. IV). It accordingly was the place of assembly, the marks the first stage or type of dwelling place, and above all, the Semitic government." 1 McCur- sanctuary of association." Fustel dy. History, Prophecy and the de Coulanges, The Ancient City, Monuments, p. 35, par. 35. Book III, chaps. 3 and 4. See Rowe, Problems of City See Fowler, the City-State of Government, eh. 1, p. 6. the Greeks and Romans, ch. 2; The appearance of cities for lnorgan. Ancient Society, part 2, the first time in human experl- chaps. 8, 9, 10; Botsford, Hist. ence. "It was a great step for- of Greece, ch. 2. ward when the thought found ex- 33. Hist, of all Nations, Vol. piession In action of surrounding 1, ch. 1, pp. 30, 31. an area ample for a considerable 34. Causes of cities. Goodnow, population with a defensive wall City Government in the U. S., ch. of dressed stone, with towers, ], p. 9 et seq. parapets and gates, designed to "The building of cities was the protect all alike and to be defend- •^ 8 Village Commmunities. 17 § 8. Development of village communities. Village communities, which played no inconsidera- ble part in the development of municipal institutions, especially in England and Continental Europe, present an interesting study and should be considered briefly in this sketch. During recent years much light has been thrown on the nature and extent of these organizations; undoubtedly, the germ from which local and general government has grown. They have been carefully in- vestigated by Freeman, Stubbs, and especially Sir Henry Maine, whose valuable deductions appear in a series of lectures published in three separate volumes, entitled "Ancient Law," "Early History of Institutions," and "Village Communities in the East and "West." Ancient village-communities existed in England and in the Scotch lowlands and highlands.^® Maine dis- covered that one particular group of small Celtic socie- ties, the clans of the Scottish Highlands, admittedly re- tained many of the characteristics, and in particular the political characteristics of the more ancient condition of the world, almost down to our own day. These village communities existed in the ancient Irish society, and they also appear in the early laws of Wales and among the original Celts and Gauls, though until recent years much veiled in doubt, due to the fact, as Maine thinks, that lawyers in tracing the ancient con- stitutions of these people were unduly influenced either ed by the common strength, pal officers of different grades. Cities of this grade imply the ex- with a mode of raising and sup- istence of a stable and developed porting military levies which field of agriculture, the possession would require public revenues, of domestic animals in flocks and Municipal life and wants must herds, of merchandise in masses have greatly augmented the duties and of property in houses and and responsibilities of the coun- lands. The city brought with It cil of chiefs, and perhaps have new demands In the art of gov- overtaxed Its capacity to govern." ernment by creating a changed Morgan, Ancient Society, part 2, condition of society. A necessity ch. 10, p. 257. gradually arose for magistrates 35. Warrick v. Queen College, and judges, military and municl- 6 Ix R. Ch. Appeal, 716. 1 McQ.— 2 18 Municipal Cobpobations. ^ 8 by Roman law or "highly feudalized law." Eecent investigation demonstrates that many things in Irish custom connect it with the archaic practices known to be followed or to have been followed by the Germanic races. "Each of them was what the Hindoos call a Joint Undivided Family, a collection of assumed descend- ants from a common ancestor,* preserving a common hearth and common meals during several generations. There was no escheat of the land to the lord on a death, because such corporation never dies, and the succes- sion is perpetual."*® The soil of the older provinces of the Bussian Empire has been from time immemorial almost exclusively dis- tributed among groups of self-styled kinsmen, collected in cultivating village-communities, self-organized and self-governing. Maine declares that "the more back- ward of the outlying Slavonic societies are constituted upon essentially the same model; and it is one of the facts with which the Western World wOl some day assuredly have to reckon, that the political ideas of so large a portion of the human race, and its ideas of property also, are inextricably bound up with the no- tions of family interdependency, of collective ownership, and of natural subjection to patriarchal power. "*^ The village community is not specially characteristic of the Aryan races, for they have been foujid in Java and among the obscurer Semitic tribes in Northern Afri- ca. The same theory of origin as advanced by Freeman concerning the Germanic village-community or Mark is suggested by all. He says that "this lowest political unit was at first in England as elsewhere, formed of man bound together by a tie of kindred, in its first es- tate natural, in a later state either of kindred natural or artificial."** 36. Maine, Early History ol 38. Freeman, Comparative PoU- Inst., Lect. 1, p. 7. tics, p. 103, quoted In Maine, E>arly 37. Maine, Early History of History of Inst., Lecture III, p. 77. Inst, Lecture 1, pp. 2, 3. Hindoo Joint Family, the House- § 8 Village Communities. 19 The Teutonic races present two salient characteris- tics— the spirit of individuality and the spirit of associ- ation, reflected in the government of the village-com- munities, and, as stated by Morier, the "action and re- action of these two laws have determined the social and political history of the race,'"* The ancient Teutonic cultivating community, as it existed in Germany, observes Maine, consisted of a num- ber of families standing in a proprietary relation to a district divided into three parts. These three por- tions were (1) the mark of the township or village, (2) the common mark or Avaste, and (3) the arable mark or cultivated area. The community inhabited the vil- lage, held the common mark in mixed ownership, and cultivated the arable mark in lots appropriated to the several families. "Each family in the township was governed by its own free head or paterfamilias. The precinct of the family dwelling house could be entered by nobody but himseK and those under his patria potestas, not even by officers of the law, for he himself made law within and enforced law made without. But while he stood un- der no relations controllable by others to the members of his family, he stood in a number of very intricate rela- tions to the other heads of families. The sphere of usage or customary law was not the family, but the connection of one family with another and with the aggregate com- munity."" Community of the Southern Sla- France, Into the Fief by the feud- Tonians, and the true Village- alization of Europe. Maine, Vil- Community, as it Is found first in lage-Communities In the East and Russia and next in India, is learn- At'est, Lecture 5, p. 131 et seq. edly, described and discussed by 39. Morier, System of Land Maine. Maine, Early History of Tenure in various countries, Inst., Lect. Ill, p. 78 et seq., clt- quoted in Maine, Village Commiini- ing and quoting from many au- ties. Lecture III, p. 82. thoritles. See also Stubbs, Const. Hist of He describes how the mark of England, oh. 2, p. 35. the Germanic tribes waa convert- 40. Maine, Village Communi- ed into the manor, and the Village- ties In the East and West, Lee- Community In early England and ture III, pp. 78, 79. 20 Municipal Cobpoeations. §9 Rome was formed by a coalescence of village com- munities.*^ Notwithstanding the transformation of the tribal idea occurred when aggregations of men combined in state or political communities vestiges of this idea have not been wholly effaced from the English law, usages and the method of tillage.*^ Certain^ prevailing tribal ideas are the basis of the earlier laws, and even in the latest codes of Anglo-Saxon customs, drawn up after the Nor- man conquest, they still appear.** § 9. First municipal institutions. It is agreed that the seeds of civilization were planted first in the fertile valleys of the great rivers of the East. Here the abundant supply of water and the richness of 41. Ma'ne, Early History _ of Inst, Lect. Ill, p. 84; Morgan, Ancient Society, part 2, Ch. 2, p. 67; Fowler, The City-State of the Greeks and Romans, ch. 11. "The basis of political organi- zation among the early Romans ■was the gens or clan. The unit of organization, which in one form or another is common to the Indo- European peoples, retained many of its characteristics and some measure of its social and political importance to a very late period. Cicero describes the gentiles of his day, or the members of a clan, as those who could trace their lineage back to a common ances- tor, who could claim that their ancestors had all been freemen, and who were in possession of their full rights. * * * The sim- plest purely political community was formed by the settlement of several clans about an arx or forti- fied point. These communities, called pagi, were, like the gentes, either purely democratic, or con- trolled by the elders. The union of 'hill settlements' adjacent to one another for mutual protection in trade intercourse naturally fol- lowed." Abbott, Roman Pol. In- stitutions, ch. 1. Gentes, curiae and tribes were institutions among the Latins when their history begins, and upon these institutions Romulus and his successors established the Romai; power. Morgan, Ancient Society, part 2, ch. 9, p. 279. 42. Maine, Early Hist, of Inst., Lect. Ill, pp. 73, 78; Seebohm, Tribal Customs in Anglo-Saxon Law, 499. 43. Tribal ideas are fully dis- cussed. Holdsworth, History of Eng. Law, Vol. 2, part 2, p. 25 et seq. See further on Village-Com- munities, Seebohm, The English Village-Community; Skeene, Celtic Scotland, A History of Ancient Alban, § 9 FiEST Municipal Institutions. 21 the soil of these lands afforded advantages not pos- sessed by the mountain slopes and flat plains.** Thus we find in the valleys of the Nile,*^ the Eu- phrates, the Tigrus and the Indus, nations among the oldest of antiquity, which contained the first municipal institutions established by the human race. Here power- ful governments developed, flourished and passed away.*** In Egypt, India, Asia, Mexico and Central and South America cities were established, which attained vast populations, great wealth, splendor and influence. In North America tlie Mound Builders, Cliff Dwellers and the Indians in general appear also to have gathered to- gether and builded towns and villages.*** In every part of the inhabited globe communities have existed, more or less compact, and it is probable that from the beginning, the moment civilization emerged from barbarism, certain primitive local jurisdiction was exercised by those in authority, to provide protection, supply wants and to regulate the population.*^ 44. See Rowe, Problems of City ferior and subordinate communl- Government, ch. 1, p. 6 at seq. ties, imperia in imperio, such as 45. "All antiquity attests that cities and towns, may be referred the valley of the Nile was one of to a period nearly as remote as the first seats of civilization." the establishment of cities." An- Rawllnson, Ancient Egypt, ch. 2, gell and Ames on Corp. (11th Ed.), p. 53. § 15, pp. 8, 9. 46. 3 Encyclopedia Britannica "The same cause which has llnk- (11th Ed.), tit. "Babylonia and ed men together in society, for Assyria," "Babylonian Laws." supplying the wants of every one 46a. Morgan, Ancient Society, by the concourse and assistance of part 2, ch. ">. many others, has produced the 47. "The origin of municipal first societies of villages, of bor- corporations may be referred to oughs and of towns." Domat's the earliest institution of civil Civil Law, 457 quoted in Angell police; or, in other words, to the and Ames on Corp. (11th Ed.) first collection of individuals unit- p. 9. ed for the purpose of a common "The existence of towns and government. ♦ • * The plan cities, and probably the exercise of forming or incorporating In- by them to a greater or less ex- 22 Municipal Cgbpobations. § 10 2. the ancient cities. § 10. Semitic cities. The cities of the Old Testament, of course, are fa- miliar to the general reader; however, in this brief sur- vey of early urban development, especially among the Semites, mention of some of the chief characteristics, and the causes which led thereto, of the concentration of population should be made. It is generally agreed that the genius of the Semitic race in all its branches, in the domain of government and municipal law, was much inferior to that of the Aryan peoples, particularly the Greeks, Romans and Teutons. Nevertheless they have demonstrated considerable ca- pacity for continuous political progress which should be viewed in connection with the marked culture and civilizing influences reflected by the urban attribute of the human races. Moreover, as well said by Dr. Mc- Curdy, "A study of the Semitic city with its adjuncts and dependencies, its internal administration and ex- ternal relations, the conditions and stages of its growth, will help us better than anything else to understand the political genius of , the race and consequently its his- tory."" It is a matter of common knowledge that, according to Biblical story Cain builded the first city "and called the name of the city after the name of his son Enoch." *• At that time, as this record states (interpreted liter- ally), only five people were upon the earth. The in- formation is equally well diffused that numerous men- tion of cities abounds in the Bible, as cities with their tent, of locaJ Jurisdiction, may be Dr. John A, Palrlle, Essays on ascribed to a very remote period." Municipal lAdminlstration, p. 1. 1 Dillon, Mun. Corp. (5th Ed.). Dr. Palrlle has written much on { 1. this subject, and his works are ol Cities have existed since the genuine value, earliest period of recorded history; 48. 1 McCurdy, History, Proph- and even large cities developed in ecy and the Monuments, Bk. I, ancient times — especially during ch. 3, S 31. the time of the Roman Empire. 49. Genesis, Chap. IV. 17. ^ 10 Semitic Cities. 23 villages, cities with their daughters, cities with their waste, cities with suburbs, fenced cities and defenced cities, great cities, cities of refuge, cities of the plain."' The beginnings of city building, as is also well known, are referred by Israelitic legend to the earliest period of human history, and are associated not with nomadic (Abel), but with agricultural (Cain) life."^ Hence, the first city of the Orient was a creation of agricul- ture, a result of pastoral life. While the necessities of trade, both maritime and inland, were the chief fac- tor in promoting the growth of a few cities, as for ex- ample, Sidon, Aradus (Arvad), Tyre, Joppa, Bosra, and Petra, it is generally believed that organized manu- facture played no part in early Oriental municipal de- velopment. The necessity of protecting life and prop- erty from the depredations of wandering tribes was the main cause of uniting together in small communities which constituted villages from which sprang the cities."" A walled place where men dwelled was usually termed by the primitive races of man a city."* 60. Numbers XXI, M; XXXII, Here rose a little state; another 42; Joshua XV, 19; 2 Chronicles near XIX, 5; 2 Kings XVIII, 13. Grew by like means. See interesting article by Henry And joined through love or fear." M. Wiltse, The Aggregation of — Pope, Essay on Man, Epistle III. Humanity In Cities, and some 53. "The word city is un- Consequent Municipal Regulations, known to the Sanskrit tongue. 86 Am. Law Review, 36 et seq. Its nearest equivalent — vastu — 51. Genesis IV, 2, Jacobus, means 'abode, domicile, place of Standard Bible Diet, tit. "City." habitation.* Furthermore, each 52. 1 Hastings, Diet, of the of the Indo-Germanic tongues has Bible, tit "City"; 1 McCurdy, a different term for 'city.' " Rowe, History, Prophecy and the Monu- Problems of City Government, oh. ments, p. 51, par. 48. 1, p. 4. Security from attack was the City meant the "meeting place chief end sought. of men, of flocks and herds, of "Great nature spoke; observant caravans, of great routes of men obey'd; travel." It includes, in historical Cities were built, societies were usage, everything from the most made: insignificant village to Jersualem 24 Mtjnicipaij Cobpobations, § 11 § 11. Same — walls, gates and open places. Semitic cities are distinguished from towns, villages and hamlets ; the latter had no walls, but the cities were surrounded by a wall, and frequently also by a moat, and sometimes even by a second smaller wall in the nature of a rampart. The city gates were clopied from sunset to sunrise, and probably in later times on the Sabbath. These were known as fortified cities. Each city was provided with a watchman or watchmen stationed near the gate to announce approaching daxiger.^* Within the city near the entrancf* through the gate were to be found open places, broad ways,*® and these constituted the centers of communal life. Here all kinds of business was transacted, public meetings were held,®* the elders of the city gathered for conference, and ju- dicial proceedings were conducted.®^ This was a marked feature of Jerusalem throughout Old Testa- ment history."* §12. Same — area limited — streets — water supply — gardens — wharves — government. In general plan and construction these ancient cities resembled those of the Orj.ent today. The tendency (1 King I, 41. 45; Isaiah I, 21) lems of City Government, ch. 1, and Carthage. It also meant h The City in History, p. 6. "watchlng-place," a collection «)f 54. "The watchmen that go people having property or value about the city." Songs of Solo- over which they erected a prlmi- mon III, 3; Songs of Solomon V, tive watch-tower. Among the As- 7; Isaiah XXI, 11. Syrians and Babylonians proba- "Except the Lord keep the city, bly city originally meant a col- the watchman walketh but in lection of "tents." 1 McCurdy, vain." Psalms CXXVII, 1; Psalms History, Prophecy and the Monu- CXXX, 6. ments, p. 33, par. 33. 55. Songs of Solomon III, 2. "The cities of the early Semites 56. Nehemiah VIII, 1, 3. were nothing more than walled 57. Deut XVII, 18; Ruth IV, enclosures to which men, women 10; Job XXIX, 7; Proverbs XXII, and children fleection by the civil and ecclesiastical powers." 2 Kent Com. (14th Ed.), p. 270. 91. 5 Mommsen, Hist. Rome, p. 374. Police and fire department. "Among the many points of re- semblance which one discovers in comparing the leading features of life in ancient Rome and modern London, that concerning the or- ganization of the police is perhaps the most striking." Lanciani, An- cient Rome, ch. 8, p. 206 et seq. 92. Absence of lighting, and the resulting disorder and inse- curity of person and property at night. "Ancient Rome has never enjoyed a good name for its re- spect of private property and the Ijersonal security of citizens. The principal cause of disorder is to be found in the almost incompre- hensible fact that the metropolis, in which all the wealth, luxury, and comfort of the world was con- centrated, was kept in perfect darkness at night. How this could have happened in such a civilized age — why the plain, simple idea of a system of public illumination was not conceived and adopted — ■ is a mystery hard to solve. Yet excavations at Pompeii, Ostia, and other well-preserved antiqije cities fully confirm the fact. Not a trace of a bracket fixed to the front of a house, or of a rope or small chain drawn across the street to support lamps or lanterns, has as yet been found, and probably none ever will be. People took advan- tage of moonlight when the moon illuminated the streets; but dur- ing quite half of the year, and when the silvery satellite was veiled by clouds, they made use of lanterns, the frame of which was generally of bronze, the other part of glass, or of thin plates of horn, or of oiled linen. People of the lower classes carried lanterns themselves; gentlemen and noble- men were preceded in their noc- turnal strolls by a valet or slave, § 30 Ancient Rome 's Municipal Activities. 63 While the municipal energies of ancient Eome were confined almost exclusively to supplying public neces- sities, conveniences and comforts, promotive of social life (e. g.,- places of recreation and amusement, as spa- cious amphitheatres, circuses, and accommodations for spectacular exhibitions of various kinds), and general civic advancement in preserving the health, safety and good government of the inhabitants, some attention was given to the welfare of the individual, apart from his called by Cicero laternarius, and by Suetonius servus pmetucens, Vino lighted their path, sometimes with a lantern, sometimes with a torch. "In consequence of this state of things, as sOon as the twilight had vanished, shopmen and merchants were obliged, for safety, to lock up their premises; and the soli- tary streets, plunged in darkness, wore a sinister look, and became dangerous for the passer-by. The shop and house doors were closed in a very ingenious way, inwards or outwards according to the re- quirements of the case. The doors were composed of three or four pieces of solid board, sometimes of a double thickness, and these pieces were made to slide, one after the other, in a groove made for the purpose in the threshold and the architrave; then a cross- bolt, the two ends of which were inserted in hollows sunk in both the door-posts, was drawn from the inside. When the door was opened and fastened from the out- side, locks and keys were made use of, the arrangement of which is now perfectly well known since Giuseppe Fiorelli, formerly direc- tor of excavations at Pompeii, and now general director of antiqui- ties in the kingdom of Italy, con- ceived the happy idea of taking plaster casts of the impressions left by Pompeian doors on the soft volcanic, ashes under which that lovely city was burned. "So precarious were the condi- tions of public security in Rome, and so great the audacity of bur- glars, that even windows were locked at night, as described by Pliny the elder, or else protected by railings, — a custom which has prevailed down to our own age, and which gives to the stately palaces of modern Rome the aspect of prisons. I need not say that house-doors were watched day and night, especially at night, by the ostiarius, or janitor, who carried a staff in his hands. The janitor, generally assisted by a dog, could be called from the outside by ring- ing a bell. In early times, and even during the Empire, although an exception to the ordinary rule, the attendance of the janitor was sometimes secured by fastening him by a chain to the entrance. All these precautions were not deemed superfluous for the pro- tection of private property." Lan- ciani, Ancient Rome, ch. 8, pp. 207. 208. 64 MXJNICIPAI, COBPOBATIONS, § 31 relations to the body of the people. Thus during the reign of Augustus the building of dwelling houses was attempted to be regulated in matters relating to sanita- tion and the number of stories that they should con- tain.93 Strongly contrasted with our conception of municipal functions the early B.omans citing tenaciously to the pub- lic weal as distinguished from that of the individual as such,®* As is familiar to all, with us individual welfare is the prime consideration. But during the last deca.de the governmental stand-point so well developed by the Roman mind is beginning to receive attention and is destined to extensive application in the domain of urban endeavor.*® The power of municipal government must be recog- nized. This view is gradually gaining ground, as is shown in the numerous local police regulations enacted and enforced for the general welfare, which are now sus- tained by our court and which a few years ago would not even be seriously suggested because of our solici- tude for the supposed inherent rights of the individual, personal and property, believed to be guaranteed by our organic laws, in accordance with the spirit of our, insti- tutions. § 31. The Roman conception of a municipal corpora- tion. Rome was divided politically into prefectures, munici- pal towns and colonies. Citizens of the towns were held 93. Rowe, Problems of City country-men but as fellow-citizens. Gov., eh. 2; Lanciani, Ancient Rome lierself was the noblest Rome, pp. 122, 123. specimen of this form of society. 94. The Roman fellow citizen. And the settlements which she The Romans "regarded a free adopted throughout Italy took man, not as one of a nation, but advantage of this prevailing rule as the member of a civic com- and perpetuated It." Liddell's munity. Every one regarded his Rome, ch. 27, § 10. first duty as owed to his own city, 95. See Rowe, Problems of and not to his nation. . Their city City Government, ch. 2, pp. 20 to was their country. They address- 26, for a good description of An- ed one another not as fellow- cient Rome. § 31 CONOEPTIOK OF A MUNICIPAL COEPORATION. 65 to be citizens of the wliole empire and enjoyed complete franchises. In all things not concerning the nation at large the municipal towns possessed the privileges of local self-government. "These communities, according to their political status, were either municipia or civitates foederaiae. The municipia were civitates sine suffragio, that is, they had only the civil rights of commericum and conuhium. In some cases they were given a local self-government; in other cases they were governed by praefecti sent out from Rome. Ultimately they received the full rights of citizenship. The privileges of the civitates foederatae depended in each instance on the special treaty made with Rome. They were not. allowed to declare war against other communities, nor to make treaties with them, and they were expected to furnish Rome with a certain number of troops in case of need, but within their own borders they were supreme."®® When the municipium, or municipal town, was given local self-government among the Romans it was viewed, in the expressive language of Liddell, as "a community of which the citizens are members of the whole nation, all possessing the same rights, and subject to the same burdens, but retaining the administration of law and government in all local matters which concern not the nation at large. "*^ 96. Abbott, Roman Political being In a position to render less Institutions, ch. 4, par. 53. assistance to the state than the 97. Llddell's Rome, ch. 27, § 12,, towns of Latium, they in general p. 254. received far less favorable con- "The towns of Italy which sub- ditions and fewer concessions, mitted to Rome at the total sub- However, the fundamental princi- jection that occurred in the latter pie of their constitution was liber- part of the fifth century from the ty and independence. They were foundation of Rome, remained, in governed by their own laws and virtue of treaties, free cities in their own magistrates. The com- alllance with Rome. Being locat- mercium was conceded to them, ed at a greater distance, having and their territory enjoyed the joined in the alliance at a later rights of Quiritarian property, in period, and having rendered and virtue of which they were free 1 McQ.— 6 66 Municipal Coepoeations. §31 Eespectiiig its private rights and obligations, under the Eoman civil, law, a municipal corporation was usually regarded as an independent member of society; and the test of its corporate character, it seems, was its property capacity. "AH urban communities," observes an intel- ligent modern writer, "whether civitates, municipia, coloniae, or vici, possessing the power of holding prop- erty, were, corporations. And it was largely to preserve to these corporations their individual rights that the law relating to juristic, or artificial persons, was de- veloped."*® The idfea is expressed more fully by the scholarly Savigny:, "It was in regard to dependent communities from the tax of annual tribute im- posed upon the possessors of con- quered lands, but their inhabit- ants could not, like the Latins, attain the enjoyment of the full privileges of Roman pitizenship. Such was the germ of what is styled the 'jus Italicum.' '' Orto- lan's Roman Law (2nd Ed., Cut- ler), p. 140, par. 189; Sandars' Justinian, Introduction, pars. 11 and 39; Liddell's Rome, ch. 27, §§ 10, 12; 1 Hallam, Middle Ages, note 18, on Municipal Government, p. 327 et seq. "It may naturally be doubted whether the principles of freedom and justice which dictated the municipal institutions of the Em- pire were fully carried out in ef- fect." 1 Hallam, Middle Ages, note 18, on Municipal Government, p. 329. "The cities among the Roman colonies, a." is well known, pos- sessed but little power of local government. As power and domin- ion were the objects of Roiue, even in her best estate, she grasp- ed it from India to Britain, and her measure of colonization par- look of the character of her gen- eral system. Her policy was mili- tary, because her objects were power, ascendency and subjuga- tion. Her colonies, including the towns and cities, were a sort of military establishment; so many advanced posts in the career of her dominion. A governor from Rome ruled the new colony with absolute sway, and often with un- bounded rapacity." Webster's Speech on Greek Revolution, H. R., Jan. 19, 1824. Under the dominion of Rome over the Italian Cities, no city v/as allowed a voice in the affairs of government until it had receiv- ed Roman citizenship. And even then the only way a city could influence matters of legislation was by its representatives going in person to Rome and casting their votes in the Roman assem- bly. Freeman, Gen. Sketch of History, 58. 98. Jones, Negligence of Mun. Corp., § 12. § 31 Conception of a Municipal Coeporation. 67 (municipalities and colonies), by the expansion of the state, that the notion of juristical persons at first ob- tained a remarkable application, and also a more defi- nite development; because these communities, like nat- ural persons, had, on the one hand, need of property and the opportunity for its acquisition, but, on the Other hand, such a dependent character that they could be ar- raigned before a court of justice. In this last respect they differed from the Eoman state, which was not sub- ject to the jurisdiction of any judge, and whose prop- erty relations were treated as more of an administrative kind; therefore, also, for this reason, consideration for the Eoman Eepublic and for it's property did not sup- ply the original motive for the recognition of a juris- tical personality and for the development of its rights, although, for the security of the state, similar legal forms to those prevailing for the security of private per- sons were introduced, of which among others the jus praediatorum offers an example."®* 99. Savlgney's Jural Relations, for purposes of religion. MudI- Rattlgan, pp. 183, 184, quoted from cipal corporations developed rap- Jones, Neg. Mun. Corp., § 12. Idly under the republic while Corporations in the Roman religious corporations proportion- law. Not only were public or ately diminished in Importance, municipal corporations early de- Taylor on Private Corporations veloped in the Roman system, but (5th Ed.), § 5. private corporations as well were Corporations "were transplanted familiar to the ancient Roman from the Roman law into the Com- law, and existed from the first mon law of England and all the days of the republic. Both classes municipal codes of Modern Europe, of corporations were also known From England they were derived to the Twelve Tables. 2 Kent's to this country." Argument of Com. (14th Ed.), p. 268. Pinkey in McCulloch v. Maryland, The first corporations at Rome 4 Wheat. (U. S.) 3,83. originated to regulate trade and 68 Municipal Cobpobations. § 32 6. THE CITIES AND TOWNS OP THE MIDDLE AGES. § 32. European governments from the fall of Rome to the feudal system. When the Eoman Empire had fulfilled its mission and passed off the stage, during the dark ages which followed for a period of more than five centuries, the Europea,n countries presented hut little semblance of orderly gov- ernment. The civilization which developed under Ro- man leadership rapidly decayed. Learning was at the lowest ebb.' Physical prowess supplanted a knowledge of books and the wisdom of the schools. With few ex- ceptions the influence of the towns and cities as factors in government became insignificant.^ The plunderers and marauders became potential figures on the Conti- nent. The men of arms and leaders of guerilla bands usurped -the rights and powers of the people and took at will unrestrained by law or justice.^ In consequence of the general disorder that prevailed throughout Eu- rope, and the multitude of estates and titles left to be disputed, wrong and violence went unrebuked and be- came superior to the law. The dominating spirits in that unfortunate state of society unhesitatingly pro- ceeded on the principle "That they should take who have the power, And they should keep who can." Numerous strongly fortified castles dotted the several countries of Europe, rudely decorated with the spoils of pillage and plunder, and tenanted by influential barons and successful chiefs of robber bands, with their retinue of military attendants. The spirit of movement ema- nated from these centers. Hall am paints this dark pict- ure: "Society had sunk for several centuries after the dissolution of the Roman empire, into a condition of 1. Goodnow, City Government 2. Mrs. J. R. Green, Town Life In the U. S., p. 26. in the Fifteenth Century, Vol. 1, ch. 1. § 33 Medieval Cities and Towns. 69 utter depravity, where, if any vices could be selected as more eminently characteristic than others, they were falsehood, treachery and ingratitude."® Some progress was observable in such towns and cities as bought from king, or chief, or baron, military protection, and in those which secured their freedom by force, or obtained it by gift. Certain cities in Italy by reason of their wealth and consequent power, by struggle or diplomacy secured their independence, and thereby became strong factors in the society of Europe, as for example, Genoa, Pisa and Venice.* So certain cities in Germany by like means became independent political communities." § 33. Same — general condition of towns. The towns of the Middle Ages were usually small, the population in none of them exceeding a few thousand. The most extensive English borough of the thirteenth century did not contain more than five thousand inhabi- tants.* In the early part of the fifteenth century the population of London was only forty thousand.'^ In this unsettled state of society, as aptly pointed out by Dr. Eowe, the prime requisites to urban develop- ment were wanting: There was absence of efScient cen- tral government, and consequently, absence of adequate governmental protection; commercial and industrial ac- tivities were struggling feebly for existence, and, hence, but few were induced to engage in these pursuits; and moreover, the territory surrounding these towns was limited.* The towns of the middle ages generally had no street paving, no street lighting, no street cleaning, no water 3. Hallam, Middle Ages, ch. 2, Life in the Fifteenth Ceatury, p. 264. Vol. 1, pp. 11, 13. 4. Fairlie, Municipal Admin- 7. Monro, The Government of istration, ch. 2, p. 21; West, Mod- European Cities, ch. 3. ern History, ch. 3, par. 114. 8. Rowe, Problems of City 5. Goodnow, City Gov. in the Government, ch. 2, p. 27. U S., p. 28. See, also, Mrs. J. R. Green, Town 6. Mrs. J. R. Green, Town Life in the Fifteenth Century, Vol. 1, ch. 2. 70 MuinCIPAL COKPOBATIONS. § 34 supply, no sewerage, no adequate police protection and dead animals were suffered to rot in the streets and by- ways. During this lawless period civilization is much in- debted to cities and towns and the urban population for the preservation of the fruits of intellectual achievement produced prior to the fall of Rbme. "What remained of knowledge, culture, and art at this crisis was guarded and transmitted by those who resided in the centers of population. In these troublous times the struggle of the commu- nities and cities for recognition and for their rights and liberties taught the people valuable lessons in self-gov- ernment and resulted, as expressed by writers, in the creation of the third estate, popular power,* § 34. The feudal system and its effect on municipal institutions. ' With the advent of the feudal system in the tenth cen- tury, the violence, disorder and rapine theretofore in vogue, in some measure, gave way to quiet and order, sustained by arbitrary and tyrannical rule. Hume pro- nounces this system a prodigious fabric, which for sev- eral centuries "preserved such a mixture of liberty and oppression, order and anarchy, stability and revolution, as was never experienced in any other age or any other part of the world." " "A feudal kingdom," says Mack- intosh, "was a confederacy of a numerous body, who lived in a state of war against each other, and of ra- pine towards all mankind; in which the king, according to his ability and vigor, was either a cipher or a tyrant, and a great portion of the people were reduced to per- sonal slavery." ^1 9. Masson, Mediaeval France, Appendix 2, The Feudal and ch. 4; Guizot, Hist, of France, ch. Anglo-Norman Government and 19; West, Modem History, ch. 3, Manners. par. 108. 11. Mackintosh's Hist, of Eng 10. Hume's Hist, of England, land, ch. 3. § 34 The Feudal System. 71 Under the feudal system the king was the head or supreme lord of all the lands in the realm. He gave his leading chiefs as a reward for military service por- tions of conquered lands or of the royal domains. These grants, conferred as mere favors, constituted a species of benefice, which was the original conception of a feu- dal property. A benefice was a fee or an estate for life only, and held ex mero beneficio, that is, on the mere good pleasure of the king. The estate in lands so granted was conceived to be in some degree, conditional. Thus all privileges concerning the enjoyment of landed prop- erty, in feudal conception, came either mediately or im- mediately from the king. The vassal to compensate for his benefice awarded by his baron owed specific services, e. g., in war he was compelled to defend his baron. In like manner each baron was bound to his king. In ad- dition to such casual military services, owing from vas- sal to baron, and from baron to king, as is well known, many others of a civil nature were imposed "which were more constant and durable. ' ' ^'^ The system was utterly destructive of the independ- ence and security of the body of the people. Most of them were mere serfs, and lived in a state of abject slaverj'. Rent was paid in arbitrary service. Grievances could be heard only in courts of barony composed of those who arrogated to themselves the right to oppress and tyrannize over the people. The towns and communi- ties were subject to the absolute will of the greater or lesser barons, who became the supreme masters of the people. These lords lived in castles on vast estates, in luxury, while the people were poor and miserable. "The feudal system was essen- ens. Com. 160; Lecky, European tially a system of violence, dis- Morals, Vol. 2, p. 286; 2 Bl. Com. order and rapine." Cooley's Const. 44. Lim. (7th Ed.), 50. For the political and social re- 12. Hume's Hist, of England, lation of the feudal system, see Vol. 1, Appendix 2, p. 528; Free- Montesguieu, Spirit of Laws, Book man, Norman Conquest, Vol. 5, p. 30; Guizot's History of France, 87; Maine, Early Law and Custom, pp. 59, 60; Maine, Ancient Law p. 345; 3 Kent, Com. 487; 1 Steph- .(Oxford lectures). 72 MUNICIPAI, COEPOEATIONS. § 34 Little or no encouragement was given to art, science, commerce, manufacture or industrial development. Learning was held in contempt. Only the profession of arms was fostered. As clearly stated, in substance, by Hume, in referring to the feudal ascendancy in England: The feudal governments tended towards aristocracy. "The king was the chief fountain of law and justibe. Under the feudal constitution both greater and lesser barons were bound as vassals to submission and fealty to the king. The supreme legislative power was lodged in the king and gxeat council, or what was afterwards called the Parliament." The archbishop and bishops and most considerable abbots were constituent members of this council. The barons were another constituent part of the great council. They held immediately of the crown by a military tenure, and had a right to be con- sulted in all public deliberations.^^ Under the feudal system the people presented three classes: Those who did the fighting, the nobles; those who did the praying, the clergy; and those who did the work.i* As one result of the development of this system much of the wealth and power of the cities and towns passed to the rural districts. The feudal lord occupied his estate and the towns became subject to his dominion,*^ and so remained until the treaties of peace between the commons and their lords, or municipal charters, as termed in England, and indeed, "bills of rights."** 13. Hume's Hist, of Eng., Aj)- knight and the peasant. West, pendix 2, pp. 533, 534, The Feu- Modern History, ch. 3, par. 106. dal and Anglo-Norman Govern- 15. Goodnow, City Gov. In the ment and Manners. U. S., ch. 2, p. 26 et seq. 14. New International Ency., 16. People vs. Morris; 13 Wend tit. "Feudalism." (N. Y.) 325. After the development of feu- Growth of towns on the decline dalism the three typical figures in of the feudal system. Willcock European society were the tonsur- says: "The walled towns became ed priest, the mailed horseman gradually more formidable than and the field laborer bent with the royal or baronical castles, un- toil and hard fare:— the priest, the til the latter altogether disappear- § 35 French Communities. 73 § 35. French communities during the middle ages. The institution of free cities and boroughs, observes Hallam, is one of the most important and interesting in the progress of society during the middle ages. "To the institution of civil or political corporations, with large charter privileges," asserts Chancellor Kent, "may be attributed in some considerable degree, the introduction of regular government and stable protection, after Eu- rope had, for many ages, been deprived by the inunda- tion of the barbarians of all the civilization and science which had accompanied the Eoman power."" The formal charters of communities first appeared in the twelfth century. The great movement of the peo- ple at the close of the eleventh century ended in estab- lishing civic freedom.^* It is said that the erection of these communities was an invention of Lewis, the Gross, in order to free the people from the slavery under the lords and to give them protection by means of certain privileges and a separate jurisdiction. According to Hume, an ancient French writer calls them a new and wicked device to procure liberty to slaves and encourage them in shaking off the dominion of their masters.^* Town government in France at this period was not uniform. There were several sources of municipal insti- ed, among the martial nations of to secure his countenance in the Europe. While the royal or bar- council and in the field." Will- onical banner was followed only ccck, Municipal Corporations, by its feudal retainers who owed Historical Sketch of Municipali- but a temporary and rendered but ties, pp. 2, 3. an unready attendance, the towns 17. 2 Kent's Com. 271; Angell defended by walls and garrisoned and Ames (11th Ed.), §§ 19, 20. by the burghers assumed a far 18. Hallam, Middle Ages, p. more formidable attitude than 327 et seq.. Municipal Government, they could have ever presented un- see for description of the French der a more regular and permanent cities during Roman dominion military establishment; till at and the existence of the Feudal length little remained of the lords system. besides a titular superiority and 19. Hume's History of Eng- inconsiderable tribute rendered land. Vol. 1, pp. 454, 455. 74 Municipal Coepoeations. § 35 tutions : First, the Eoman system of decurions, inherited prescriptively by some communities, chiefly in the South, but in the course of time their governments became more free and popular, partaking of the spirit of the age, father than typical of the Eoman aristocratic municipia, that is, the rule of thfe select few representing patrician families governing by heredity was largely supplanted by the seizing of power by the body of the people; sec- ond, the German system of the voluntary societies or guilds, spreading to the whole community for a common end; third, the forcible insurrection of the inhabitants against their lords or prelates; and finally, the charters, regul9,rly granted by the kings or, by an immediate su- perior.^" ' During this period the charters granted by the crown and the feudal lords and barons were numerous. Thus the towns and communities became independent and pos- sessed a full measure of self-government. The earliest charters granted to towns in Frapce have been commonly referred to the time of Louis VI, who granted eight charters. The communal movement continued during the reign of Louis VII who confirmed seventy-five char- ters. Towns grew in population and trade. Barren tracts of land were cultivated, forests disappeared and substantial encouragement was given to industry in gen- eral. The movement was supported by Philip Augusta.^^ By the end of the 15th century the towns possessed a full measure of civic freedom. They represented free and popular government. The desire to throw off the yoke of feudal tyranny was general. The accession of the third estate to power dates from the reign of Louis IX who granted a few communal charters, but he encouraged as much as he could the transformation of the communes into royal cities, which depended on the crown while they were governed by a 20. Hallam, Middle Ages, p. 21. Masson, Mediaeval Prance, 339. _ ch. 3, p. 63; and ch. 4, pp. 73, 75 See Goodnow, Municipal Govern- ment, ch. 4, pp. 59, 60. § 36 Chaeteb Pbivileges. 75 mayor, councillors and other magistrates elected by the burghers. This ruler opposed municipal independence.^^ In referring to the establishment of communities in France at this period, the learned Dr. Eobertson, ob- serves that the good effects "were immediately felt and their influence on government, as well as manners were no less extensive than salutary. A great body of the people was released from servitude, and from all the arbitrary and grievous impositions to which that wretched condition had subjected them. Towns, upon acquiring the right of community, became so many little republics, governed by known and equal laws. Liberty was deemed such an essential and characteristic part in their constitution, that if any slave took refuge in one of them, and resided there during a year without being claimed he was instantly declared a freeman, and ad- mitted as a member of the community. • * » "The acquisition of liberty made such a happy change in the condition of all the members of the communities as roused them from that inaction into which they had been sunk by the wretchedness of their former state. The spirit of industry revived. Commerce became an object of attention and began to flourish. Population in- creased. Independence was established; and wealth flowed into cities which had long been the seat of poverty and oppression. * * * Laws and subordination, as well as polished manners, taking their rise in cities, diffused themselves insensibly through the rest of so- ciety."" § 36. Charter privileges to French communities. The privileges granted to the towns of mediaeval France by their charters were extensive. Hallam says that they were allowed to possess common property and 22. Masson, Mediaeval France, Also quoted In Glover, Mun. ch. 4, p. 118. Corp.' Historical Summary, pp 23. Robertson, Hist, of Bmper- XVIII, XIX. or Charles V, Vol. 1, pp. 39, 41. 76 Municipal Coepobations. § 36 authorized to use a common seal as the symbol of their incorporation. "The more oppressive and ignominious tokens of subjection, as the fine paid to the lord for per- mission to marry their children, were abolished. The payments of rent or tribute were limited both in amount and as to the occasion when they might be demanded and these were levied by assessors gt their own electing. Some towns obtained an exemption from assisting their lord in war; others were only bound to follow him when he personally cordmanded; and almost all limited their service to one, or, at the utmost, very few days. Their customs as to succession and other matters of private right were reduced to certainty, and, for the most part, laid down in the charter of incorporation. And the ob- servation of these was secured by the most valuable privilege which the chartered towns obtained — that of exemption from the jurisdiction, as well of the royal as the territorial judges. They were subject only to that of magistrates, either wholly elected by themselves, or, in some places, with a ■ greater or less participation of choice in the lord. They were empowered to make spec- ial rules, or, as we call them, by-laws, so as not to con- travene the provisions of their charter, or the ordinances of the king. "2* The charter usually required that all inhabitants with- in the town enclosure should "swear the commune," and each one should ' ' assist his neighbors loyally and , ac- cording to his ability." The peers were obliged to bind themselves by oath not to permit friendship, nor private enmity to enter into their decisions, but to render a just judgment in each case. All inhabitants had to obey the decisions of the peers, and to assist in enforcing them. Provision was made for the redress of all injury to a person who has sworn the commune, or to a friendly for- eign merchant coming within the municipal limits "for trading purposes." 24. Hallam, Middle Ages, ch, 2, pp. 252, 253. § 37 Commune and Boeough, 77 "No member of the commune shall give or lend his money to the enemies of the commune so long as war ex- ists between them, for if he does so he has perjured him- self; and if any man stands convicted of having lent or trusted any thing to. them, he shall be punished ac- cording to the decision of the peers." ^^ § 37. Commune distinguished from borough. The essential characteristics of a commune, accordmg to M. Brequigny, were an association confirmed by char- ter; a code of fixed sanctioned customs; and a set of privileges, always including municipal, or elective gov- ernment. "Communes appear as local facts, isolated one from another, often very different in point of origin though analogous in their aim, and in every case neither assum- ing nor pretending to assume any place in the govern- ment of the state. Local interests and rights, the special affairs of certain populations agglomerated in certain spots, are the only objects, the only province of the com- munes. With this purely municipal and individual char- acter they come to their birth, their confirmation and their development from the 11th to the 14th century." The third estate is the successor, not the contemporary of the communes.^* In a corporate town and a borough the magistrates were appointed by the king or other superior. This ab- sence of an elective government constituted the chief difference between these and the commune. Each class possessed fixed privileges and exemptions; the inhabi- tants enjoyed personal liberty and their legal usage was 25. Form of a charter of a ment, ch. IV, pp. 60, 61; Fairlie, Beauvais Commune, of the Middle Municipal Administration, ch. II, Ages, appears in Masson, Mediae- pp. 25 to 27. val France, ch. 3, pp. 49-52. 26. Guizot, Hist, of France, See Goodnow, Municipal Govern- ch. IV., p. 135. 78 Municipal Coepobations. ' §§ 38, 39 certain. Indeed, Hallam remarks that, it is agreed that every corporation was a borough, though every borough was not a corporation.^^ § 38. Mediaeval Flanders and Holland. In Flanders and Holland the independence and self- government of the towns and cities, as we are informed by Hallam, goes back beyond any assignable date. They appear to have sprung from a distinct source from the great reservoirs of Roman institutions.^* § 39. Early German towns. In early Germany, the cities and towns on the Rhine retained more of their ancient form of government than those of middle and northern France. There the only municipal governments in existence were of Roman origin. Notwithstanding the Latin tongue had disap- peared, Roman institutions, to a great extent, particu- larly in the more important centers, remained. But generally, after the fall of Rome, localities although im- pressed with the Roman form of administration became merely parts of the country or duchy in which they were situated, and the inhabitants became subject, to the governmental power of the duke or count, until the grant 27. 1 Hallam, Middle Ages, n. "The commercial life of Bruges 18, on Municipal G-overnment, p. depended on the Zwijn, and that 336. much business was done there be- 28. Hallam, Middle Ages, note fore the close of the ninth cen- 18, p. 37. tury is shown by the fact that Bruges. "The boundaries of Bruges had then a coinage of its early Bruges can easily be traced; own. It was from such small be- but nothing remains of the an- ginnings that this famous 'Ven- cient buildings, though we read of ice of the North' arose." Omond's a warehouse, booths and a pris- Bruges and West Flanders, p. 10. on, besides the dwelling houses See, also, Gilliodts van Severens, of the townsfolk. The elements, Bruges Ancienne et Moderns, pp. at least, of civic life were there." 7, 8, 9; Robinson's, "Bruges, an Omond's Bruges and West Flan- Historical Sketch." ders, p. 10. § 40 Municipal Institutions in Eably Spain. 79 to them of special privileges authorizing them to estab- lish forms of local government suitable to the social and industrial needs of densely populated districts.^® At Cologne, from age to age, a corporation of citizens existed, exactly resembling the curia or ordo and whose members set up hereditary pretentions to a Roman de- scent. Hallam says we find there, a particular tribunal for the "cessio bonorum," a part of Eoman law unknown to the old jurisprudence of Germany as much as to that of the feudal system. In the 12th century the free con- stitution of Cologne passed for ancient. From Cologne and Treves municipal rights spread to the Ehenish cities of less remote origin, and reached the great communities of Flanders and Brabant.^" § 40. Municipal institutions in early Spain. The Gothic dominion in Spain, of 300 years duration, ended July, A. D. 711, with the success of the Moors, who remained in the land for nearly 800 years, until the fall of Granada, A. D. 1492." Thereafter by the union 29. Goodnow, Municipal Home orum, the chief town of the U-hil, Rule, pp. 11, 12. See Fairlie, where in 51 A. D., a Roman col- Municipal Administration, ch. 11, ony was established by the em- pp. 27 to 31. peror Claudius at the request of 30. Hallam, Middles Ages, n. his wife Agrippina after whom it 18, pp. 337, 338. was named Colonia Agrippina. "The result of the final de- It is built on the left bank of the velopment of the German cities Rhine. "It Is very irregularly was then the same as in Italy, built and the older streets are The cities went through a period narrow, crooked and dirty. Its during which many of them ob- most important squares are the tained practically the position of Heumarkt, Neumarkt, Altmarkt, city-states. They were for the and Waidmarkt." Many of its most part, however, later brought churches are famous both for into the position of subordinate their age and for the magnifl- members of a larger state." cent monuments and works of art Goodnow, Municipal Government, which they contain. 6 Encyc. ch. IV, p. 59. Britannica 151, 152. Cologne, the chief city and 31. The Moors in Spain by capital of Rhenish Prussia oc- Stanley Lane Poole, cupies the site of Oppidum Ubi- 80 Municipal Coepobatiofs. § 40 , of the crowns of Castile and Aragon the peninsula was once more Christian. Then the people, various in origin, in religion and in their institutions, and somewhat rent by old jealousies and rivalries, became for the first time in history united in a common polity and took their place as a power in the system of Christendom.^^ When the Visigoths settled in the peninsula in the 5th century, observes Prescott, they brought with them the same liberal principles of government which distin- guished their Teutonic brethren. Their code of jurispru- dence contained many admirable provisions for the security of justice and the protection of civil liberty. In this respect it far transcended those of most of the other barbarians of the north. ' ' Their simple polity exhibited the germ of some of those institutions, which with other nations and uiider happier auspices have formed the basis of a well regulated constitutional liberty. ' ' ^* The legal incorporation of communities was perhaps earlier in the Spanish peninsula than in any other coun- try.^* This was due to the Saracen invasion, which ac- celerated the development of free government in Spain in a greater degree than in other states of Europe. The marked dissimilarity of the political institutions of the Arabs forbid their acceptance by the conquered nation, or even to allow them to influence in any perceptible de- gree the principles of free government gradually devel- oping in the peninsula. Moreover, the Moors conceded to such of the Goths as determined to remain among . them after the conquest, the free enjoyment of many of the civil privileges possessed by them under the ancient monarchy. The fact should be noted also that the long struggle with the Moors served to keep alive in the Spanish bosom the ardent glow of local patriotism. Extraordinary privileges were granted to the inhabi- tants who settled in frontier places. The charters to 32. Watts, Spain from the 33. Prescott, Ferdinand and Moorish Conquest to the Fall of Isabella, Vol. 1, § 1. Granada. 34. Hallam, Middle Ages, note 18, pp. 335, 336. § 40 Municipal Institutions in Eaely Spain. 81 communities in Castile and Leon were extremely liberal. Though varying in detail these charters generally con- ferred the right to the inhabitants to choose their own magistrates for the regulation of municipal affairs, and other valuable privileges, protecting the people in their rights and property against the nobility and preserving the principle of local government. In contrasting them with communities in other states of Europe, Prescott remarks: "Thus, while the inhabi- tants of the great towns in other parts of Europe were languishing in feudal servitude, the members of the Cas- tilian corporations, living under the protection of their own laws and magistrates in time of peace, and com- manded by their own officers in war, were in full enjoy- ment of all the essential rights and privileges of free- men."^* This elegant writer further says that the peculiar glory of Spain was the freedom of her municipal institutions, and that with the immunities granted, the cities of Castile obtained a degree of opulence and splen- dor unrivalled, and that at the beginning of the 15th century the sovereign of Castile was possessed of less power and the people of greater than in any other Eu- ropean monarchy of that period.^® The brilliant American writer, Washington Irving, has penned this graphic picture: "In the wild passes of these mountains (of Granada) the sight of walled towns and villages, built like eagles' nests among the cliffs, and surrounded by Moorish battlements or of ruined watch towers perched on lofty peaks, carries the mind back to the chivalric days of Christian and Moslem warfare, and to the romantic struggle for the conquest of Granada."" "The old Moorish mills, so often found on secluded streams, are characteristic objects in Spanish landscape and suggestive of the perilous times of old. They are of 35. Prescott, Ferdinand and 37. Irving's Alhambra (re- Isabella, p. 20. vised ed.), p. 10. 36. Prescott, Ferdinand and Isabella, p. 52. 1 McQ.— 6 82 Municipal Coepobations. § 41 stone and often in the form of towers witli loop holes and battlements, capable of defense in those warlike days when the country on both sides of the border was subject to sudden inroad and hasty ravage, and when men had to labor with their weapons at hand, and some place of temporary refuge." ^* Barcelona was distinguished f^pm a very early period by ample municipal privileges. In 1025 all of the fran- chises which the inhabitants of Barcelona possessed were confirmed to them.^* Barcelona presents a history full of important and stirring incidents. It is said to have been founded or rebuilt by Hamilcar Barca, in whose honor it was named; it was a leading Eoman and Gothic city; has been taken by different armies; has been under the rule of Aragon, Spain and France, and the scene of various insurrections in the last century; is the seat of a noted university, founded in 1596; and during the middle ages it was an important literary and commercial center when it was known as Barcinona or Barchinona. § 41. Cities of ancient Mexico. Historians usually assert that the cradle of the hu- man race first appeared upon the banks of the Nile or in the valleys of the Tigris and Euphrates. But the ruins and relics of antiquity found in Mexico and Cen- tral America lead a few investigators to qiiestion this assertion. It is believed by some that, anterior to the appearance of the Aztecs and Toltecs, long before the plains of Anahuac resounded to the wild martial music of the Indian warrior, away back into "the night of time," peoijles lived, builded and died, in the land of the modem Mexican. The age of Mexico's monuments and pyramids will probably always remain a puzzle to the antiquarian. According to authentic history the Toltecs were prob- 38. Irving's Alhambra, (re- S9. Hallam, Middle Ages, note vised ed.). p. 14. 18, p. 335, 336; Robertson, His- tory of Charles V. note 16. § 41 Cities op Ancient Mexico. 83 ably the first people who showed advancement in civili- zation that appeared in Mexico. They migrated from the north into the valley of Mexico some five or six centuries prior to the appearance of the Spaniards, re- mained four hundred years and then mysteriously dis- appeared. They are said to have builded vast cities which is supported by the discovery of ruins and im- perfect records, alleged to have been made by certain Toltec princes, which were amplified by Spanish chroniclers. They are usually known in history as ' ' The Builders." At Tula, the capital of the Toltecs, remains of extensive buildings were to be discovered there at the time of the conquest. And the ruins of Mitla and Pa- lenque in Central America are often thought to be relics of the Toltec civilization. Subsequently other Indian tribes occupied land which the Toltecs had appropri- ated. The ancient capital, Tenochtitlan, in the Valley of Mexico, was occupied by the Aztecs when the Spanish conquerors subdued the land. In this valley numerous cities existed, the remains of some of which are yet visible. Tezcuco, the capitol of the Acolhuans or Tezcu- cans, flourished in this valley as a fine city. The Tezcu- cans are always mentioned as a people of gentle and cultivated manners, reasonably well skilled in the finer arts, and of considerable literary abilities. They have been characterized as the Athenians of the New World. "If the Tezcucans were the Greeks, the Aztecs were the Eomans of the New World." " In a general survey of the political and social institu- tions of the races who occupied the land at the time of its discovery by the Spaniards, Prescott says that, the ancient inhabitants not only far surpassed in intelli- gence that of the other North American races, but they remind us *'by their monuments of the primitive civi- 40. 23 Historians' Hist, of the cient Romans, not only in their World, p. 506. military successes, but in the pol- "The history of the Azteca icy which led to them." Pres- suggests some strong points of cott. Conquest of Mexico, Book resemblance to that of the an- 1, ch. 1. 84 Municipal Cobpobations. § 42 lization of Egypt and Hindustan;" that their degree of civilization "may be considered, perhaps, not much short of that enjoyed by our Saxon ancestors under Alfred, but in respect to the nature of it, they may be better compared with the Egyptians."*^ The City of Mexico (Tenochtitlan) now the leading city of Latin North America, is the most ancient city on the Continent. It was the capital of the TolteCs, the Az- tecs and of new Spain and is now the capital of the Ee- public of Mexico. § 42. The Incas empire — Cuzco — Lima. The ancient city of Cuzco, contained the royal resi- dence of the Incas and the dwellings of the nobility. It was called the "Holy City," was visited by pilgrims from all parts of the empire, and was surrounded by a fortress and walls built of heavy stone. "Many of these stones were of vast size, some of them being fully thirty- eight feqt long, by eighteen broad, and six feet thick." It remained the capital of the Incas empire until after the conquest when the site of the present city of Lima was selected as the site of the future capital.*^ Lima was founded by Pizarro a short distance from the sea, and placed under Spanish rule. At the time of the invasion of the Spaniards the Peruvians had already made considerable progress towards civilization, as ap- peared from their many magnificent palaces and tem- ples, and their high degree of perfection in architecture. They were also well advanced in the arts of mining and sculpture and in agriculture, and had a regular system of government and a code of civil laws.*' The city of "Lima is divided into five quarters or par- ishes and is well laid out with broad and regular thor- 41. Prescott, Conquest of Mex- Howell, Mexico (London, 1892). Ico, Bk. 1, chs. 1, 2; Charnay, 42. Presoott's Conquest of Ancient Cities of the New World, Peru, Vol. 1, p. 18. (London, 1887) ; The Aztec Con- 43. Prescott's Conquest of federacy In Morgan's Ancient So- Peru, Vol. 2. ciety, part 2, Ch. 7, p. 186 et seq.; § 43 Municipal Govbbnment in England. 85 OTighfares, the streets intersecting each other at right angles. The houses are spacious, but generally of only two stories and are approached by portals leading into an open court or yard. ' ' It contains many churches, the largest being that of San Pedro which has seventeen al- tars. Its university, built in 1576, is the oldest in Amer- ica.** 4. DEVELOPMENT OF MUNICIPAL GOVEENMENT IN ENGLAND. § 43. Practical importance of such knowledge. Since our municipal corporations were established in accordance with the principles of the English common law, in order to obtain a more accurate and comprehen- sive idea of such institutions, it will be found beneficial to study briefly their rise and progress in the mother country, and their creation and development in this, in harmony with our modifications of the English system of jurisprudence, whose roots are still embedded in An- glo-Saxon soil.** It is certain that a knowledge of the origin of munici- pal institutions in England, the liberties , and customs inherent in, and possessed by, and confirmed to, them by charter of prelate, peer, lord or king, and the jurisdic- tion relating to local self-government freely exercised by them through centuries of development, and those pow- ers and privileges with which they have been invested from time to time will tend to give a more intelligent understanding of many of the rights, powers, duties and 44. 14 Encyc. Brit. (9th Ed.), people, and by the extent of its 644. influence on the institutions and 45. Influence of English Gov- political thought of other lands, ernment. "Measured by the the English government has been standard of duration, absence of one of the most remarkable the violent commotions, maintenance vsrorld has ever known." The Gov- of law and order, general pros- ernment of England, by A. Liaw- perity and contentment of the rence Lowell, Prefacei 86 MxJNICIPAIi CoKPOEATIONS. § 44 liabilities of municipal corporations at the present time, especially in all those relations wherein the principles of the common law are applicable.** While the various statutes and charters affecting mimicipal corporations in this country have conferred upon these bodies differ- ent powers, privileges and obligations than were pos- sessed by the original, the cases reported afford ample evidence to establish the fact that many of these origi- nal rights, powers and duties have a strong and frequently a controlling influence on certain judicial decis- ions, as will appear in various parts of this work, es- pecially in Chapter 4, relating to legislative control of municipal corporations.*^ § 44. General outline of local government in England. Local government is at once the oldest and the young- est branch of the English political system.*^ It has passed through many stages. The kingdom of England was established in the ninth century by the uniting of the several Anglo-Saxon juris- dictions or kingdoms. 46. "Our system of local and The power to declare the ap- municipal Government is copied plicabllity of the common law to In its general features from that our conditions Is In the courts, of England." Mayor, etc., v. Ray, Duke v. Harper, 66 Mo. 51. 19 Wall. (U. S.) 467, 476. 47. People v. Hurlbut. 24 Mich. The first charter of New York 44, 9 Am. Rep. 103; People v. Dei- City, and also the first charter tiiot, 28 Mich. 228, 15 Am. Rep. of Boston were modelled on the 202; State v. Denny, 118 Ind. 382, English municipal charters of the 1 L. R. A. 65, 24 Am. & Eng. time. Goodnow, Mun. Problems, Corp. Cas. 164; State v. Fox, 158 p. 1. Ind. 126, 63 N. E. 19, 56 L. R. A. English common law is in 93; Lexington v. Thompson, 113 force. In nearly all of the Ky. 540, 68 S. W. 4,77, 57 L. R. A. states of the Union, as in Mis- 775; dissenting opinion of Brown, sourl, the English common law J., in People v. Draper, 15 N. Y. prevails and must be enforced by 532, 501; People v. Albertson, 55 the courts, unless changed by N. Y. 50; State v. Barker, 116 constitution or statute. 2 R. S. Iowa 96, 89 N. W. 204. Mo. 1909, Sec. 8047; Lindell v. Mc- 48. 7 Encyc. of the Laws of Nalr, 4 Mo. 380; Reaume v. Cham- England, tit. "Local Govern- bers, 22 Mo. 36. ment." § 44 Local, Govebnment in England. 87 Townships, hundreds and shires were the local areas. For purposes of local government the country was di- vided into districts known as shires (or counties) and these into hundreds and the hundreds into townships. These geographical subdivisions date back to the days of king Alfred, existed at the date of the Norman conquest, and each class had a governmental organization and public functions and obligations separate and distinct from the others.** The township was at first a small farming community inhabited chiefly by peasants, and probably was more of a social and economic, than a political district. The inhabitants conducted the local affairs through a body, •usually known as an assembly. The town-reeve was the chief or head man in local government and administra- tion. The other ofiicers consisted of a tithing man and a constable and subsequently a priest when the parish was formed. These officers, with four men, were the representatives of the township in the courts of the hun- dred and the shire. The hundred court which held monthly sessions con- trolled the local affairs of the hundred which was com- posed of several townships. This court was constituted by the representatives of the various townships and all owners of land residing within its jurisdiction. In prac- tice certain executive officers, a deputy of the shire- reeve, an elected hundreds-ealdor and a permanent committee of twelye senior thegns, actually administered the functions of the court which were, in character, ju- dicial, embracing both civil and criminal jurisdiction, notwithstanding the theory appeared to prevail that jus- tice was administered by the whole body of lawful attendants or suitors present. 49. Wood in his Institutes, See, 1 Merewether & Stephens, writing in 1722, divides England History of Boroughs and Munici- Into several counties, every coun- pal Corporations, the Saxon ' Pe- ty into hundreds, and every hun- riod. dred into towns and villages. Wood's Institutes, pp. 2 to 4. 88 Municipal Coepobations. § 44 The shires. Certain of tlie shires, the larger districts, retained some features of self-government which they had possessed under the Saxon system prior to their uniting with the kingdom of England. It is not easy to trace their origin. Antiquarians and historians do not agree on all points touching their source and devel- opment. It ■ appears certain, howe^ver, that the various shires were not uniform in governmental organization. Each shire had several officers who represented the in- habitants in public affairs. The Norman conquest wrought some changes in local organization. The jus- tice of the peace was an important officer in the early English system as he is in England at present. The office of sheriff also developed into a powerful factor in government. With the years and succession of rulers forms of gov- ernment and powers and responsibilities of public offi- cers, in these various local areas have changed from time to time, and the hundreds and the townships have ex- isted at certain periods as mere territorial subdivis- ions, or at least, as unimportant local governmental units, but the influence of the shires or counties as gov- ernmental organs has , been ever recognized, whether with the county court as the main instrumentality un- der the Plantagenet Kings, or the justices of the peace under Edward III. Parishes. During the Anglo-Saxon period af|;er the organization of the church parishes appear with boun- daries usually coterminous with those of the early town- ships. At first their affairs were directed by an assem- bly of inhabitants residing therein known as the vestry. Certain civil functions, as well as ecclesiastical, were per- formed by the parishes. In the days of the Tudors, after the dissolution of the monasteries the obligation of taking care of the pooj was shifted to the parishes by the statute of Elizabeth. Overseers of the poor were elected in each parish with the church wardens as ex offi- cio members, to perform thi^ duty. ^ 44 Local Goveenment in England. 89 The boroughs as separate units of local government, with territorial areas not corresponding exactly with any other geographical subdivisions, have existed in Eng- land from the earliest time. They possessed their own local oiEcers and community life with charters varient in powers touching internal affairs and local organiza- tion; however, their inhabitants were under the juris- diction also of the officers of other governmental areas in which they resided.^" Poor law unions. In course of time, to more effectu- ally relieve the poor, which became a pressing need, through appropriate public functionaries, and mainly for economic reasons — practical convenience in proper- ly caring for the poor — the parishes were grouped into districts. These districts were known as unions.^^ Regardless of the boundaries of other local areas except the parishes these unions embraced both urban and ru- ral communities, and thus constituted governmental subdivisions, with certain public powers and obliga- tions, different from any existing prior to that time. At present there are six hundred and fifty-seven such unions. No distinction is made in the poor law organi- zation between urban and rural areas. The governing authority is known as the Board of Guardians, the mem- bers of which hold office for three years, but this author- ity is under the strict control of the Local Government Board.«2 50. § 48 post. was that in the first instance the 51. Ashley, Ixical and Central union should be small enough for Government, § 5, p. 52; 4 and 5 the guardians to have a personal William IV, c. 76. knowledge of all the details of Poor law unions. The gen- its management, and it seems to, eral idea on which the union was have been intended that, as the formed fras that of taking a mar- business became simplified and ket town as a centre, and unit- understood, the area might be en- Ing the surrounding parishes, the larged." Wright and Hobhouse, inhabitants of which resorted to Local Government and Local Tax- Its market, such a centre being ation, (2nd Ed.), P- 9- supposed to be convenient for the 52. Ashley, Local and Central attendance of guardians and par- Government, ch. 1, § 5, pp. 52 tell officers. A limiting principle to 60. 90 Municipal Cobpoeations. i § 44 Other classes of territorial subdivisions were created from time to time, with local authorities invested with certain governmental powers, e. g., districts for the maintenance of highways, for the maintenance of ceme- teries and burial grounds, for the protection of the public health, for public improvements, for public educa- tion, etc. All local administration was under the con- trol of the general governmenl.^^ Modern local governmental areas. The Local Govern- mental Act of 1888 wrought changes in the local areas and forms of local governmental organs and gave to each county an elective council. At present the main divisions are counties and county boroughs. The ancient county. The largest of the administrative areas in England and Wales is the ancient county, whose authorities are appointed by the central government. These counties serve as districts in the election of mem- bers to Parliament, as the territorial basis for the mili- tia, and for certain judicial functions. Administrative county. But the divisions known as the administrative counties are the chief areas in local government and administration. Their boundaries are usually coterminus with the ancient counties; however, some of the latter are divided into two or more admin- istrative counties. Sixty-two administrative counties and sixty-nine county boroughs exist in England and Wales. Four different classes of governmental areas are em- braced in the administrative county, namely, non-coun- 53. Falrlie, Local Government communities, pp. 11 et seq., for in Counties, Towns, and Villages, development of the English sys- ch. 1; Lowell, The Government tern, pp. 14 to 22. Also Angell & of England, Vol. 2, eh. XXXVIII, Ames on Corp., "Introduction;" 4 p. 129 et seq. Reeves' Hist, of Eng. Law (Fin- The Anglo-Saxon System in lason's Ed.), pp. 182, 183, note England, 1 Stubbs' Constitution- (a) ; Willock, Mun. Corp., oh. al History of England, ch. 5, p. 74 Historical Sketch of Municipalt' et. seq. See Glover on Mun. ties." Corp. for history of municipal §44 Local Govebnment in England. 91 ty boroughs, urban districts, rural districts and rural parishes. Boroughs and urban and rural districts constitute geographical subdivisions of the county. The local governing body of each of these subdivisions is a coun- cil. The organization and government of the modern English borough is mentioned in a subsequent section.^* The parish. At present parishes also exist, in the rural districts, namely, the poor law or civil, and the eccle- siastical, parish. These bodies perform important pub- lic duties pertaining to local administration. The sparsely populated parishes, after the manner of the early New England towns, hold mass meetings for the transaction of public business, and those of more than three hundred inhabitants have elected councils as the governing local body.^* 54. i 60 55. Lowell, The Governmenli of England, Vol. 2, Ch. 38, pp. 141, 142. Rural parish organization. "In the years 1902-3, there were 12,985 rural parishes; and of these 7,250 were entitled to have councils, 5,735 to have meet- ings only." Ashley, Local and Cent. Gov., ch 1, § 2, p. 33. The "poor law parish" is "a place for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed." It differs often from both the ancient civil and ecclesiastical parish. Wright and Hobhouse, Local Govern- ment and Local Taxation (2nd Ed.), p. 1, quoted In note to Ash- ley, Local & Cent. Gov., p. 33. Parish is the unit of local government. "The parishes is now once more the unit of local government. The Roman vill — if the vill was Roman,— the Sax- on tun or township, and the Nor- man manor, have all given place to the parish, which was orig- inally an ecclesiastical division." W. Blake Odgers in 7 Bncyc. of the Laws of England', tit. "Local Government." "The Parish IVIeeting, which is an institution hundreds of years older than either the House of Lords or the House of Commons, has only received in 1894 its full recognition at the hands -of Parliament. Yet the parish meeting is the cradle in which our liberties were nursed. It was the school in which our forefathers learnt those lessons of self-respect, self-help and self, reliance which have made the English nation what it is. Slow- ly and gradually they learnt them, but by such lessons alone does a nation rise to a true con- ception of the meaning of lib- 92 Municipal Coepoeations. §44 Rural sanitary districts. There are six hundred a.nd seventy-two rural sanitary districts in England and Wales. Each district is governed by a council composed of members elected for a term of three years. It works by committees. It has officers, as clerk, treasurer, medi- cal officer, inspectors and surveyor. The county council. The governing authority in each administrative county is the county council. It con- sists of members elected for three years from subdivis- ions or wards, and aldermen chosen by the council for a term ,of six years, being one-third of the number of councillors.^* The chief officers of a county council are the clerk, coroners, medical officer, public analyst, secretary or di- rector of education, survej^ors, inspectors of foods and erty and the metliods of self-gov- ernment. * * * In the church and in the vestry all were equal, all were free; women, too, took part. The parish meeting * * * was al- ways democratic in its character; it tended ever to elevate the peo- ple, and give them life and hope. * * * Then as the hamlets grew Into towns, and the parishoner became a burgess, the same spirit created municipal freedom, the guild of each craft was still closely connected with a church; and the men who could manage the business of their guild soon claimed to contrql the affairs of their borough." W. Blake Odgers in 7 Encyc. of the Laws of Eng- land, tit. "Local Government." 56. "In the elections to the county councils the most strik- ing fact is the absence of party feeling and the consequent in- frequency of contested elections. The 'persons elected are drawn very largely from the classes who supply the Bench of Justices — the large and small landowners, the large farmers, professional men, and clergy; representatives of the lower, middle and working classes are comparatively rare. This is due partly to the maintenance of the old Influence of social po- sition, partly to the expense in- volved in travelling often some considerable distance to the coun- ty centre for the meetings of the council or its committees, and partly also to the fact that the administrative work was done quite well by the Justices under the old system. But in spite of this class predominance, partic- ularly strong in the rural coun- ties, the councils have aroused a considerable amount of popular interest, they have shown much enterprise and energy, and they have maintained the best tra- ditions of English local adminis- tration." Percy Ashley, Local and Central Government, ch. 1, § 2, p. 25. § 45 The English Municipal Coepoeation. 93 drugs and of weights and measures, and a county treas- urer. Council meetings are infrequent, ordinarily not more than four sessions a year. The chief business of the council is conducted by committees. Questions of policy must be directed by the council. It may pass by-laws for the county and has the charge and management of coun- ty property and also power to levy a rate or raise a loan. In conducting the local governmental affairs the power and duties of the county council are many and varied. It assists through a committee in the control of the police. It maintains all "main roads" within its boundaries, county bridges, and may construct or aid light railways. It is required to provide for elementary education in its area and may provide for higher educa- tion. It attends to public health, sanitation, foods, drugs, diseases of animals, weights and measures and river pollution. It may provide hospitals, asylums, re- formatory and industrial schools. In addition, the county council has certain supervi- sory powers over the lesser rural authorities, e. g., those of the rural districts and the rural parishes, as in the approval of loans and changes in boundaries. § 45. The English municipal corporation. Chancellor Kent says that, inasmuch as the powers, capacities and incapacities of corporations under the English law very much resemble those under the civil law, "it is evident that the principles of law applicable to corporations under the former were borrowed chiefly from the Roman law, and from the policy of municipal corporations established in Britain and the other So- man colonies, after the countries had been conquered by the Roman arms."®^ Other authors express similar views. Indeed, it is generally assum,ed that Roman law largely influenced to a greater or less degree all of the political institutions 57. 2 Kent's Com. (14th Ed.), 269. 94 MuNiciPAii CoBPOEATiosrs. § 45 of England and Continental Europe, but many writers argue that, generally speaking, in the parts of the world peopled by the Aryan race the Roman Empire has made itself felt very slightly or not at all.''* While the word "municipality," as used in the Eng- lish law, is derived from the Roman "municipum," , which means a free town possessing the right of Roman citizenship, but governed by its own laws,^® the develop- ment of municipal institutions in England, it is believed by most investigators, was little influenced by the prin- ciples of the Roman law. Rather, it is contended, that such institutions sprang from the genius of the early Saxon people whose dominating trait was to give liberty and security to the individual, sustained by local gov- ernment conducted by neighbors. "In many important features," observes Dr. Fairlie, "the later Anglo-Saxon system bears close analogies to - the Germanic system in the first century A. D., as described by the Roman historian Tacitus, and it is evident that the one has developed from the other."*" "Such a type of community," remarks a modern Eng- lish writer, "was well suited to the political genius of the Anglo-Saxons, and towns formed on this self-govern- ment model and protected by royal or baronical charters sprung up rapidly in mediaeval England. The import- ant part played by these well-ordered and peaceful trad- ing communities in breaking down the power of the feu- dal barons and reenforcing the weakness of the Crown is well known. They helped, says the historian Robertson, more than any other cause to introduce regular govern- ment, police and arts. They are still the pillars of mod- ern civilization. ' ' *i 58. Maine, Early History of first centuries of the Anglo-Saxon Institutions, Lect. 1, p. 2. period." Palrlle, Local Govern- 59. § 108 post. ment In Counties, Towns and Vll- 60. "There are many unset- lages, ch. 1, p. 3. tied questions In connection with 61. E. Manson in 9 Encyc. of the extent of the early Roman In- the Laws of England, title "Mu- fluence on the development of in- nlclpal Corporations." stitutlpns In England during the § 46 Teutonic !Faemer Commonwealths. 95 § 46. The Teutonic farmer commonwealths planted in early England. Learned investigators agree that the municipal in- stitutions of the English race originated from what Green, the English historian, denominates "the farmer commonwealths." Undoubtedly, the English nation is of distinctly Teutonic or German origin. The Angles, Jutes and Saxons, who, according to Bede, furnished the mass of immigrants in the fifth century were among those tribes of lower Germans, which had been the least affected by the Eoman influence.** As history records, the Teutonic element was strengthened in the ninth and tenth centuries by successful Danish invasions. However, it is conceded that the earliest rules of the English law are in substance Teutonic. These Teutons brought to their new home the essential elements of the civilization which they had maintained for four hun- dred years, and the new land afforded means of repro- ducing at will the institutions under which they had lived so long. At first, it appears, their society was to a great extent organized on the principle of kindred. They regarded the family tie as the basis of social organiza- tion, and commemorated the tribal identity by the names they gave to the new settlements.** 62. Stubbs, Select Charters, matters ot general concern, were p -y considered at general councils ot 63. Stubbs, Select Charters, p. the people, but local affairs of 1. Holdworth, History of Bng- minor importance were attended lish Law, Vol. 2, pt. 1, p. 3 et seq. to by local magistrates. The How early Germans lived at magistrates who presided In the home, as described by Caesar and local courts, were elected by popu- Tacitus, with comments by lar vote. It appears that each Stubbs, 1 Stubbs Const. History district was organized into hun- of England, ch. 2, p. 12, et seq. dreds, for the purpose of local self- The early Teutons were real government. Cities and walled freemen. They had kings with towns did not exist among them, limited authority who were se- Each man dwelt on his own home- lected from certain families. stead, and the cluster of dwell- They had also chieftains whom irgs formed small urban settle- they freely chose among them- ments, or villages, selves in times of danger. Grave 96 Municipal Cobpoeations. § 46 As civilization advanced it is certain the legal system absorbed new elements, some of them peculiar, some of them common to all civilizations, but Stubbs the Eng- lishman asserts that "our whole internal history testifies unmistakably to our inheritance' of Teutonic institutions from the filrst immigrants. The Teutonic element is the paternal element in our system, natural and political." ®* The basis of the new society as it had been trans- planted in early England was the freeman, as it had been in the far off fatherland by the Northern Sea. Their life at this period is thus vividly described by Green: Lit- tle knots of kinfolks drew together in "tun" and "ham" beside the Thames and the Trent as they had settled beside the Elbe and Weser, not as kinsfolk only, but as dwellers in the same plot, knit together by their common holding within the same bounds. Each little village-commonwealth lived the same life in Briton as its farmers had lived at home. Each had its moot hill or sacred tree as a center, its ' ' mark " as a border ; each judged by witnesses of the kinsfolk and made laws, in the assembly of its free men, and chose leader for its govern- ance, and the men who were to follow headman or ealdor- man to hundred-court or war."^ 64. Stubbs Select Charter, p. 1 main, purely Teutonic." 2 Holds- et seq; 1 Stubbs Const. Hist, of worth. Hist, of the English Law, England, ch. 1, pp. 2, 6, 11. Bk. 1, pt. 1, p. 3; 1 Gneist, Hist. Conflict as to germanic op of the English Constitution, Ch. Roman origin. "It is right to 1, The Anglo-Saxon Foundation, say that upon this subject there 65. Green, Short History of has been a la,rge amount of learn- the English People, ch. 1, § 2. ed controversy. Some writers. Consult Hume's Hist, of Eng- for instance Coote and Seebohm, land, appendix 1, "The Anglo- would assign a large share to Saxon Government and Manners;" Roman and Celtic usages. But Freeman, Norman Conquest, Ch. the balance of recent opinion is 1; Macaulay, Essay on History; not in favor of this view. Stubbs, Reeves' History of the English Freeman, Prof. Vinogradoff, Sir Law (Finlason), Introductory Frederic Pollock and Prof. Malt- note; Mackintosh, Hist, of Eng- land favor the view that the land. Vol. 1, p. 25, Vol. 5, ch. 1. Anglo-Saxon law was, in the § 47 EOMAN EULE IN England. 97 With a touch of seutiment, this learned writer ob- serves: "It is with a reverence such as is stirred by the sight of the headwaters of some mighty river that we look back to these tiny moots where the men of the vil- lage met to order the village life and village industry, as their descendants, the men of later ISngland, meet in Parliament in Westminster, to frame laws and do jus- tice for the great body which has sprung from this lit- tle body of farmer commonwealths in Selswick."*® Oreen also declares that England is the only purely German nation that rose upon the wreck of Eome. In other lands conquered by German peoples religion, so- cial life, administrative order still remain Eoman. "In Briton alone Eome died into a vague tradition of the past. The whole organization of government and so- ciety disappeared with the people who used it." The Eoman law, literature, manners, and faith were swept utterly away. *^ § 47. Municipal institutions in Engfland under Roman dominion. For nearly four hundred years Britain was a province of Eome."® Then, according to Green, population was grouped in cities such as York and Lincoln, cities gov- erned by their own municipal officers, guarded by mas- 66. Green's Short History of unknown to our early ancestors, the English People, ch. 1, § 1. * * * There appears no rea- 67. Green, Short Hist, of the son to suppose that the boroughs English People, Ch. 1, Sec. 2. in England, during the Saxon and Institutions of Teutonic Ori- Norman times, had anything in gin. "There were in the Saxon common with the boroughs of the period of our history scarcely any Romans." 1 Merewether & Steph- Irdication to be found of the civil ens' History of Boroughs, pp. 5, institutions or laws of the Rom- 7. ans, with the exception, perhaps, 68. Hume's History of Eng- of a few which related to the land, Ch. 1 ; 1 Merewether & Steph- descent and transmission of real ens' Hist, of Boroughs, pp. 4 to property. * * • Indeed it seems 10. certain that the Roman laws were 1 McQ.— 7 98 Mtjnicipaij Cokpoeations. § 47 sive walls and linked together by a net work of roads which extended from one end of the island to the other. Town and country were alike crushed by heavy taxation, while industry was fettered by laws that turned every trade into a hereditary caste. "Above all, the purely despotic system of the Eoman government, by crushing all local independence, crushed all local vigor. Men for- got how to fight for their country when they forgot how to govern it. ' ' ®* It was only in towns, however, that the conquered Brit- ains became entirely Eomanized. Only the towns folk and the wealthy land owners employed the Latin tongue.'"' But the highest form of town life known to the Romans was rare in Britain. Thus the col- oniae and municipia, the privileged municipalities, which characterized the development of Roman polit- ical civilization in the provinces, was rare in Britain.''' A modem English writer declares that "it seems prob- able that the prevailing type of social organization dur- ing the Roman period was the villa or great estate owned by a Roman proprietor and dotted over with the cot- tages of British serfs or slaves, whose labour was di- rected for his lord's benefit by a villicus or farm bailiff, sometimes himself a slave.'' ^'' In 410 Rome withdrew her legions from Britain. The English conquest began in 449, but "five centuries fol- lowed the landing of Hengist and Horsa with a band of 69. Green's Short Hist, of the The population of the whole English People, ch. 1, § 1. Islands of Britain comprised at 70. Macaulay's Hist, of Bng- the time of Caesar's invasion land, ch. 1. about forty tribes. 18 The His- During the Roman domination, torians' Hist, of the World, p. 3. Britain consisted of thirty-three 71. Haverfield, Victoria's Nor- divislons with various constitu- folk. Vol. 1, p. 282. tions, and each possessing some 72. Hodgkin, Pol. Hist, of Eng- measure of local administration. land. Vol. 1, ch. 5, p. 77. 1 Mackintosh, Hist, of England, p. 25. ^ 48 The Early English Bokotjgh. 99 warriors from Jutland before Britain had become Eng- land.^^ The tongue, religion and the laws of the Eng- lish conquerors reigned without a rival."''* § 48. The early English borough, and its influence on local self-government. That a better imderstanding may be obtained concern- ing the development of local and municipal government in England fuller mention should be made of the growth of the borough. Boroughs existed in England from the earliest period of its authentic history.'* "Although all boroughs were not cities, all cities were boroughs and had their municipal rights in that charac- ter alone."''* As the early society was rude, the borough organiza- tion naturally partook of that character. "It is only in a refined and speculative age," says Macaulay, "that a polity is constructed on system." '^ 73. "Hengist and Horsa • • • ain prior to the reign of Eliza- are mythical peirsons whose very beth. existence may be questioned, and 75. Glover deduces this con- whose adventures must be classed elusion from public records, an- with those of Hercules and clent statutes, law authorities and Romulus." Macaulay's History other unquestionable British doc- of England, ch. 1. uments. Glover, Mun. Corp., p 74. Green's Short History of 20. English People, ch. 2, § 1; Hume's For history of the English, Hist, of Eng., ch. 1. Irish and Scottish Borough, see The civic settlements, dating 4 Encyc. Britannica (11th Ed.), from the days of the Roman tit. "Borough;" Merewether and sway, fell into ruin; the old Rom- Stephens, History of Boroughs. an culture disappeared. Gneist, 76. "Of burghs some be in- Hist. of the English Constitution, corporated and some not; and Vol. 1, ch. 1. some be walled and some not; Consult Introductory note to * • * every city is a burgh, but Pinlason's edition of Reeves' Hist. every burgh is not a city." Coke of the English Law for a con- upon Littleton, ch. X, § 162, p. sideration of the Influence of Ro- 109. man Institutions and law In Brit- 77. 1 Macaulay's History of England, ch. 1, p. 38. 100 Municipal Coepobations. § 48 Originally, the borougli was a mere township or group of townships, whose inhabitants happened, either for purpose of trade or protection or agricultural pursuits, to cluster together more thickly than* elsewhere, i For instance, the first Dooms of London provided especially for the recovery of cattle belonging to the citizens. As the country people were given better security, from time to time, they prospered and their estates grew. So in the towns industry, and trade developed, and thus the difference between country and urban life became more sharply defined. Writers agree that London paved the way in this new development of civic life. At first the town was merely a part of the surrounding country, organized and gov- erned in exactly the same, manner as the township in which it was located. As time passed social changes occurred, and the right of the people to participate in their own affairs increased. The English townsman be- came practically free. It appears that custom defined precisely his rights. His property and person were alike secure against arbitrary seizure. The privilege of a fair trial on any charge was granted him. The bur- gesses met in coDomon meeting, where they exercised the right of free speech and free deliberation in their local affairs. These rights were constantly widened as time went on.''^ Glover affirms that boroughs were all essentially alike In their object, construction and general character, in England, Wales, Scotland and Ireland. The same class of persons originally formed the burgesses in all bor- oughs. "Such burgesses were the permanent i free in- habitants of the borough, performing their duties and enjoying their privileges as the free inhabitant house- holders paying scot and bearing lot." The provisions and spirit of the Saxon system of policy prevailed during the reign of William, The Conqueror.'^** 78. Green's Short History of Holdsworth, Hist, of English Law, the Eng. People, ch. IV, § 4; Vol. 2, p. 255. 78a. § 55 post. H8 The Early Ekglish Boeotjgh. 101 This appears from the laws then compiled and the great .fiscal record of Domesday Book. The principal characteristic of a borough was its separate jurisdiction, partly exclusive of the sheriff's interference^* At the opening of the period of foreign kings (1013), as we are informed by Green, the boroughs of England were for the most part mere villages, but at its close they were rich enough to buy liberty from the Crown. The right of self-government, of free speech, of common deliberation which had passed from the people at large into the hands of nobles were revived in the charters and councils of the towns. "Two hundred years of peace," says Green, "the political ability of her kings and their judicial reforms reared the fabric of her laws. It is to the stern disclipine of those two hundred years that we owe not merely English wealth and English freedom but Eng- land herself."*" 79. Glover on Mun. Corp., pp. 20, 21. See Goodnow, Municipal Gov- ernment, ch. 5, p. 65, et seq. 80. Green's Short History of the English People, ch. 2, § 1. Growth of freedom of bor- ough during reign of Henry I. The condition is thus succinctly described by Green: "In the si- lent growth and elevation of the English people the boroughs led the way: unnoticed and despised bj' prelate and noble they had alone, preserved or won back again the full tradition of Teutonic lib- erty. The rights of self-govern- ment, of free speech in free meet- ing, of equal justice by one's equals, were brought safely across the ages of tyranny by the burgh- ers and shopkeepers of the towns. In the quiet, quaintly-named streets, in town-mead and market- place, in the lord's mill beside the stream. In the bell that swung out its summons to the crowded bor- ough-mote, In merchant-gild, and church-gild, and craft gild, lay the lite of Englishmen who were do- ing more than knight and baron to make England what she is, the life of their home and their trade, of their sturdy battle with oppression, their steady, cease- U-ss struggle for rights and free- dom. It is difficult to trace the steps by which borough after bor- ough won Its freedom." Among the towns London stood chief, and obtained a charter which became the model for the rest. The char- ter granted the right of local self-government. Thus borough after borough won Its freedom. But the citizens of London were not yet united in a commune or corporation; but an Imperfect civic organization existed in the "wards" or quarters of the town. 102 Municipal Cobpobations. H8 A full enfranchised English borough of the fifteenth century claimed large liberties, high dignities and privi- leges, and was in fact, as declared by a reliable author, "a free self-governing community, a state within the state, boasting of rights derived from immemorial cus- tom and of later privileges assured by law."** each governed by its own alder- man, and in the "guilds," or vol- untary association of merchants or traders, which insured order and mutual protection for their members. "Loose, too, as these bonds may seem, they were drawn firmly together by the older English traditions of free- dom which the towns preserved. In London, for instance, the bur- gesses gathered in town-mote when the bell swung out from St. Paul's to deliberate freely on their own affairs, under the presidency of their alderman." • • • Few bor- 0|Ughs had as yet attained to the power possessed by London, but charter after charter during Henry's reign raised the towns- man of boroughs from mere traders, wholly at the mercy of the lord, into customary tenants, who had purchased their freedom by a fixed rent, and enjoyed exemp- tion from all but their own jus- tice. Rude as the borough was. It had preserved its right of meet- ing in full assembly of the towns- men for government and law. Justice was administered in pres- ence of the burgesses, and the accused acquitted or condemned by the oath of his neighbors. Green's Short History of English People, § 6. 81. A borough of the 15th century. The same standard authority farther declares that the town in fact governed itself "after the fashion of a little principality," that within its bounds, "it carried on its isolated self-dependent life. The inhabitants defended their own territory, built and maintained their walls and towers, armed their own soldiers, trained them for service, and held reviews of their forces at appointed times. They elected their own rulers and officials in whatever way they themselves chose to adopt, and distributed among officers and councillors just such powers of legislation and administration as seemed good in their eyes. They drew up formal constitutions for the government of the community, and as time brought new prob- lems and responsibilities, made and re-made and revised again their ordinances with restless and fertile ingenuity, till they had made of their constitution a va- rious medley of fundamental doc- trines and general precepts and particular rules, somewhat after the fashion of an American state of modern times. "No alien officer of any kind, save only the judges of the High Court might cross the limits of their liberties; the sheriff of the shire, the bailiff of the hundred, the king's tax-gatherer or ser- §49 Gkanting Chabtebs in England. 103 § 49. The granting of charters to communities in early England. In early England, according to all English writers, of the first part of the last century, as Merewether and Stephens, "Willcock, and Glover, many towns were en- franchised and incorporated by the greater barons and many more by the crown. At first, it seems, that the geant-at-arms, were alike shut out. The townsfolk themselves assessed their taxes, levied them in their own way and paid them through their own officers. They claimed broad rights of Justice, whether by ancient custom or royal grant; criminals were brought before the mayor's court, and the town prison with its irons and its cage, the gallows at the gate or on the town common, testified to an authority which ended only with death. "In all concerns of trade they exercised t)ie widest powers, and bargained and negotiated and made laws as nations do on a grander scale today. They could covenant and confederate, buy and sell, deal and traffic after their own will; they could draw up formal treaties with other boroughs, and could admit them to or shut them out from all the privileges of their commerce; they might pass laws of protec- tion or try experiments in free trade. Often their authority stretched out over a wide dis- trict, and surrounding villages gathered to their markets and obeyed their laws; it might even happen in the case of a staple town that their oflScers controll- ed the main foreign trade of whole provinces. In matters that nearly concerned them they Were given the right to legislate for themselves, and where they were not allowed to make the law, they at least secured the exclusive right of administering it; the King and the Parliament might issue orders as to weights and measures, or the rules to be ob- served by foreign merchants, but they were powerless to enforce their decrees save through the machinery and with the consent of the town. "Arduous duties were handed over to them by the state — the supervision of the waters of a river basin, the keeping of the peace on the seas. They sent out their trading barges in fleets un- der admirals of their own choos- ing, and leaned but lightly on state aid for protection or re- venge, answering pillage with pil- lage and making their own treat- ies with the mariners of other countries as to capture and ran- som and redemption of goods, and the treatment of common sail- ors or of 'gentlemen' prisoners. The necessity of their assent and co-operation in greater commer- cial matters was so clearly recog- nized that when Henry the Sev- enth in 1495 made a league of peace and free trade with Bur- gundy the treaty was sent to all 104 Municipal Cokpokations. § 49 right of doing so was in the immediate lord and not in the king by virtue of his prerogative. Every great ba- ron who had towns within his barony incorporated them at will. The earliest incorporations by the kings were of towns held in demesne of by tenure in capite. Glover says that many of the municipal institutions of England, Wales, Scotland and Ireland owed their privileges to charters from the *Crown; some to charters from prelates, while others had privileges conferred on them by peers, being lords of liberties or exclusive jur- isdictions. It appears that many of these institutions in England and Wales were established in practice long before they were settled by law.*^ Thomas Madox, writing in 1722-6, in his Firma Burgi, or an Historical Essay Concerning the Cities, .Towns and Boroughs of England, says that "Several lords of baro- nies held in demesne all the towns, whether corporate or non-corporate, which were within their barony. For example, the town of Bristou (Bristol) was part of the ancient Honour of Glocester. The Barles of Glocester held the town in dominio ; the burgh of Arundell was par- cel of Honour of Arundell ; the burgh of Waling ford was of the chief towns in England, shires, In spite of all statutes of that the mayor might aflSx to it Parliament the towns asserted the city seal 'for equality and their freedom to elect without stableness of the matter'; and fear or favour and sent to the the same form was observed at House of Commons the members the marriage of the Lady Mary, who probably at that time most "Two hundred and twenty-six nearly represented the 'people,' burghers sat in Parliament beside that is, so far as the people had the seventy-four knights of the yet been drawn into a conscious shire; and each borough freely share in the national life." Mrs. decided for itself what the quail- J. R. Green, Town Life in the fications of its members should Fifteenth Century, Vol. 1, ch. 1. bo, and by what manner of elec- - 82. Glover, Mun. Corp. XVI, tion they should be chosen, at a XVII. time when for country folk all See also Willcock, Mun. Corp., such matters were irrevocably Historical Sketch of Municipali- settled by the king's law. While ties, p. 3 et seq., and Merewether the great lords with their armed & Stephens, History of Boroughs; bands of liveried retainers abso- Hearn, Government of England, lutely ruled the elections in the 475, 50. § 49 Gbantinq Chaetees in England. 105 part of the Honour of Walingford ; and so for the rest. In like manner the Great and Baronial Abbots and Priours commonly held the towns lying within their seigneury in demesne. But I forbear to enlarge on this Head." ^^ The granting of charters, as the information appears in Merewether and Stephens' History of Boroughs (1835) and utilized by Glover (1837) and later English writers, may be outlined, in substance, as follows: "William I granted two charters to London conferring thereon various important privileges, touching the right of local government. Henry II granted several charters during his reign, which were separate from the creation of the boroughs, including only a part of the burgesses and having objects distinct from mimicipal government. During the reign of Richard I few charters were granted, but those issued gave to boroughs tjie general privileges of exclusive jurisdiction and exemptions which could not be enjoyed by any but residents. King John issued many charters to the chief cities and boroughs of the Kingdom. Such grants were made to the citizens of London, Lincoln, Norwich, York, Win- chester, Hereford, Exeter and others. In each of these places the grantees of the Crown were described by the name of "citizens." Throughout the whole of this reign all the charters were granted to the burgesses and their heirs. During the reign of Henry III numerous charters were granted to places in England, Ireland, Scotland and Wales. Glover says that, from the similarity of such charters and the express reference to certain free customs, it is impossible not to arrive at the conclusion that the boroughs in each kingdom were of the same description, and that the burgesses were of the same class, besides subject to the same laws and regulations. In the reign of Edward I burgesses first sat in Parlia- ment, under writs requiring "two burgesses to be re- 83. Madox, Flrma Burgi, 17. 106 Municipal Coepoeations. § 50 turned from each borough." by the burgesses. Such per- sons were the inhabitant householders, so that any per- son who occupied any house in a borough was a burgess thereof. This conforms to the decision made by the House of Commons during the reign of James I, "that of common right all the - inhabitant householders were the burgesses." During the reign of Edward I it ap- pears that the administration of justice and municipal government was very much improved. In the reign of Edward II the mayor and aldermen of London claimed their privileges as granted by the char- ter of Edward I in extending over the suburbs. In 1318 certain articles, says Glover, were agreed upon by the citizens for the better internal government of London and common benefit of "those who dwelt therein." These were confirmed by the king. Here the body of the citizens were described as "the commonality of the commons." Glover asserts that from the statutes, charters, docu- ments and laws occurring in this reign the clear result is, that "the general law and the municipal institutions still continued to be in strict uniformity with the Saxon law." Some of the statutes enacted in the reign of Edward III declare that cities and boroughs and franchised towns shall enjoy their franchises, customs and usages as they ought and were wont to do.** § 50. The Great Charter. By the Great Charter King John confirmed generally the several charters granted to particular places during his reign. Magna Charta secured the towns in their en- joyment of municipal privileges, their freedom from arbitrary taxation, their rights of justice, of common de- liberation and of regulation of trade. This instrument (Section 16) ran thus: "And the city of London shall have all its ancient liberties and free customs, as well by 84. Glover, Mun. Corp., pp. 21-27. §50 The Gkeat Chaetbe. 107 land as by water: furthermore, we will and .grant that all other cities and boroughs and towns and ports shall have all their liberties and free customs." ^^ While the Great Charter is usually regarded as the basis of English liberty, it in itself was no novelty, nor did it claim to establish any new constitutional prin- ciples or municipal privileges. The charter of Henry the First formed the basis for the whole, but the vague ex- pressions of the older charter were now exchanged for precise and elaborate provisions. As justly remarked by Green: "The Great Charter marks the transition from the age of traditional rights, preserved in the na- tion's memory and officially declared by the primate, to the age of written legislation, of Parliament and stat- utes, which was soon to come."*^ And Macaulay de- 85. 2 Reeves' Hist, of Bng. Law (Finlason's Ed.), p. 18; lb., Vol. 1, p. 472, note; Holdsworth, His- tory of England, Vol. 2, p. 167. 86. Green's Short Hist, of the Eng. People, § 3, ch. 3. The Great Charter. "It is im- possible to gaze without reverence on the earliest monument of Eng- lish freedom which we can see with our own eyes and touch with our own hands, the Great Charter to which from age to age patriots have looked as the basis of Eng- lish liberty." Green's Short Hist, of Eng. People, ch. 3, § 3. See comments in 18 The His- torians' Hist, of the World, p. 347 et seq. Also Magna Charta, translated in full, lb., p. 350 et seq. Consult: 1 Stubbs, Constitu- tional History of England, Ch. 12, par. 155, for outline and com- ments. A modern English writer thus observes: "It stands at the head of those two or three documents which contain, or are supposed to contain, some of the fundamental principles of the British Consti- tution. Lawyers, historians and politicians of every period of our history have interpreted It from the standpoint of every period of that history. From this point of view we may compare it to the Twelve Tables. In the same sense as they were regarded as "fons et origo juris civilis," Magna Charta is the fount and source of our constitutional law. Like all docu- ments which have attained not merely fame but sanctity. It has become the source of dogmas and doctrines of which its framers never dreamt; and an attempt to ascertain the meaning which the men of 1215 attached to some of its more famous clauses, no doubt would, if it were a theological document, be denounced as blas- phemous. Fortunately the path of the merely secular historian Is 108 Municipal Cobpoeations. §51 clares that here commences the history of the English nation.®'^ § 51. First municipal corporation in England — charter to Kingston-upon-HuU. Willcock says that it does not appear that any regular municipal corporations with exclusive jurisdiction ex- isted among the Anglo-Saxons,^® and Glover asserts that, although boroughs existed during the Saxon period, yet neither in the law, chronicles, nor charters is there a trace of any municipal corporation.^® In harmony with the doctrine that "none but the king alone can create or make a corporation,"''" it not blocked by the spectre of heresy." 2 Holdsworth, History of English Law, pp. 165, 166. "In Magna Charta, then, we get the first attempt at the expression In exact legal terms of some of the leading ideas of constitutional government. It was the first of many like services which the new common law was destined to per- form. There is no attempt to de- stroy the foundation of the law and of orderly government which the Crown had laid. But it has become clear that there is a united 'communa totius terrafil which de- sires some share in the govern- ment, and which has the power and the will to correct abuses, in the administration of the law." 2 Holdsworth, History of English Law, p. 169. 87. Macaulay's History of Eng- land, p. 26. "The Great Charter closes one epoch and begins another. On the one hand it is the united act of a nation that has been learn- ing union; the enunciation of rights and liberties, the needs and uses of which have been taught by long years of training and by a short but bitter struggle : on the other hand it is the watch- word of a new political party, the starting point of a new con- test." 2 Stubbs, Constitutional Hist, of England, ch. 14. "The world-renowned events of the 15th of June, 1215, which un- der the name of Magna Charta are rightly regarded as completing the foundation of the English Constitution." .1 Gneist, Hist, of the English Const. (2nd. Ed.), ch. 18, p. 298. 88. Willcock, Mun. Corp., Sketch of Municipalities, p. 4. 89. Glover, Municipal Corpora- tion, pp. 12, 13. 90. Sutton's Case, 5 Coke's Re- ports, part 10, p. 34. "Only the king can incorpo- rate" — view of Willcock as to its origin. "About the time of Edward the First the franchise of returning members to parliament was conferred upon a great num- ber of towns, for the most part incorporated. The writs being ex- § 51 FiEST Municipal, Corporation in England, 109 is usually declared that the formal establishment of municipal corporations proper, as bodies corporate and politic, was first introduced in England during the reign of Henry VI. Thus it is generally laid down that the original true charter of incorporation was granted to the city of Kingston-upon-HuU in 1439, A. D.*^ ecuted by the bailiff or other chief officer, attracted them more with- in tlie sphere of regal authority, and they began to assume addi- tional importance in a political point of view. Soon after the crown endeavored to strengthen its control over them by intro- ducing the writ of qiu> warranto by Which the judges in their in- terest were empowered to inquire by what warrant all who claimed any franchise, in derogation of the crown, maintained their title. This was doubtless no inefficient weapon in the hands of an active and vigilant monarch. In the 18th year of this reign another statute was made, to render them more immediately dependent upon the crown. Prom that time ap- plications from towns incorporat- ed by barons, for a confirmation of their former, or a grant of new charters, became more frequent. Hence, as I apprehend, grew up the doctrine sufficiently agreeable to the King, and readily enough asserted by the dependent judges of the King's own court, that no incorporation was valid without the regal sanction." Willcox, Mun. Corp., pp. 7, 8. 91. Glover, Municipal Corpora- tions, p. 28; Cox, Institutions of the English Government, p. 728; 2 Merewether and Stephens, His- tory of the Boroughs and Munic- ipal Corporations of the United Kingdom, p. 859. First charter of incorporation. Pike, Int. to 1 Y. ,B. 6 Ed. Ill, XLIV, says that Wells was incor- porated three years earlier than the charter of Ed. Ill (1327 to 1377) to Coventry, that Gross, in 1 Gild Merchant, 93, note, says is the earliest charter of incorpora- tion known. The earliest mem- tion of a borough as "un corps" is in Y. B. Easter, 4 Ed. II, 103 (1311). The Origin of Municipal Incorporation in England and in the United States by Amasa M. Eaton, 25 Reports Am. Bar Assn., p. 321. First appearance of the term "corporation." Merewether and Stephens and Glover all say that the term "corporation," for the first time introduced into, the mar- gin of the Year Books, during the reign of Edward III, was bor- rowed from Sir Robert Brooke's Abridgment, who was chief justice of the common pleas in the second year of the reign of Philip and Mary, and whose book was first published in 1573, the 15th year of Queen Elizabeth. "The first distinct recognition of a municipai corporation was in the 18th of Henry VI (1429), ■with reference to Kingston-upon- HuU, which had an express charter of incorporation granted 110 MuNICIPAIi COBPOBATIONS. § 51 Btit prior to this time several guilds and fraternities acquired corporate powers : First, by the grants of per- petual succession, and, subsequently, by express char- ters of incorporation.^* Hull had been granted charters by the Crown anterior to this date which were similar in terms to charters given to other towns and boroughs. However, it was now as- certained that none of these charters "incorporated;" they merely conceded rights and conferred privileges; but "to incorporate," apt words or terms of incorpora- tion must be employed. Probably about this time the idea of a new juristic entity of perpetual life, the per- sona ficta of the law, or the fictitious legal personality, was evolved by the Crown lawyers; the word "succes- sors" supplanted the word "heirs" in the charters and this became one of the technical requirements to consti- tute incorporation. Perhaps this is the real foundation for the statement that the birth of the genuine municipal corporation dates from the charter to Kingston-upon- Hull, notwithstanding it is satisfactorily established that numerous charters issued subsequent to this time made no distinction between "heirs" and "successors." Indeed, it is undeniable that the charters granted by the Crown were made in some instances to the' inhabitants "and their successors, " in others to the inhabitants "and to it for the first time In that was a grant of liberties to the year." Glover, Mun. Corp., p. 16; fishmongers of London making 2 Merewether & Stephens' History them one body and a perpetual of Boroughs, p. 693. commonality. The vinters and 92. Charters to guilds and the brewers of London also ob- fraternities. In the 17th year of tained grants that they should Richard II the Mercers of London bt bodies and have one perpetual had a grant that they should be community. All these were previ- one perpetual community, and in ous to the 18th of Henry VI the eighth of Henry VI the men of (1439), when the first charter of the Mystery of York obtained a incorporation was granted to charter. In the same year the Kingston-upon-HuU. Glover, Mun. grocers had similar grants; and Corp., pp. 27, 28. in the 11th of Henry VI there §51 Chaeteb to Kingston-upon-Hull. Ill their heirs," while in some cases they were made to the inhabitants, ' ' their heirs and successors. " ** Moreover, as explained elsewhere in this work, no pre- cise form of words is necessary to constitute valid incor- poration.** As pointed out by Merewether & Stephens, and Glover, this charter differs in its language and provisions, as to the corporate powers, from any municipal charter before granted. It does not commence, like those of former periods, with a recital or inspeximus of any former char- 93. Glover, Mun. Corp., p. 16. Charters to "heirs" and "suc- cessors." In 1314, a charter was granted by Edward II "to the mayor and the citizens, their heirs and successors, citizens of the city" of Dublin. 2 Mere^yether & Stephens' History of Boroughs, p. 601. In 1318, a charter was granted "to the citizens, their heirs and Buccesors, citizens of the city of Cork." lb., pp. 603, 604. In 1327, a charter was granted to the citizens of London "their heirs and successors." lb., p. 629. In 1334, a confirmation of liber- ties was made "to the burgesses of Nottingham and their heirs and successors, burgesses of the same town." lb., 656. In 1374, Edward III granted a charter "to the mayor, sheriffs and commons, and their heirs and successors of the city of Bris- tol." lb., p. 693. The King granted to the bur- gesses of Bala in Wales, theii» town to hold, to them, "their heirs and successors, burgesses of the town, at fee-farm forever." lb., p. 704. In 1407, Henry IV confirmed the privileges of the burgesses of Athboy, In Ireland, to "their heirs and successors." lb., p. 810. And the same king granted to Drogheda, in Ireland, the bur- gesses thereof, "their heirs and successors forever." lb., p. 811. In 1422, Richard de Beauchamp, Earl of Worcester, confirmed prior charters of Hugh de Despencer to Cardiff, in Wales, and made fur- ther grants to "the burgesses their heirs and successors." Subsequently additional priv- ileges "to the burgesses of Cardifl!, their heirs and successors," were granted. lb., p. 942. In 1450, Richard Nevill, Earl of Warwick, granted "to the bur- gesses of Cardiff, their heirs and successors," certain specified lib- erties, and in the same charter he made other grants "to the bur- gesses, resiants and their suc- cessors." lb. Thus, so far as appears from the above charters, a grant to citi- zens of a community "and their successors" did not differ from a grant to them "and their heirs and successors." 94. §§ 104. 112 MuNICIPAIi COBPOBATIONS. § 51 ters thongli, as above mentioned, there had been mdny previously granted to this place at various times by sovereigns. But the charter begins with rather a pomp- ous recital of the king's good disposition to the place for services performed to him, immediately after which it incorporates the mayor and burgesses, giving to them the corporate powers subsequently so 'common of suing and being sued, and of being capable in the law to pur- cbase and hold lands by their corporate name. It then separates Hull from the county of York and makes it a county of itself, substituting a sheriff in the place of four bailiffs; directing that there should be a coroner and an escheator, with the customary powers, and that there should be thirteen aldermen, one of whom should be mayor, with power to elect the mayor and other annual officers and aldermen, from time to time, as any of them should die or depart from their office.®" Although incorporations did not immediately there- after become general some towns were incorporated by similar terms and according to the new form adopted for Hull, as, for example, Plymouth, Ipswich, Southamp- ton, Coventry, Northampton, Woodstock, Canterbury, Nottingham and Tenterden. But it was not until the ascendency of the Tudor s to the throne of England that incorporation became general.®* 95. Glover, Mun. Corp., XXVIl the canon law, artificial subjects and XXVIII; Merewetli,er & of private law, so as to permit Stephens' Hist, of Boroughs, p. them more easily to own property 860, wherein on p. 861 et seq. the and to sue and be sued. Their provisions of the charter are set effect was merely to emphasize out fully. the private slda of municipal lite, 96. Goodnow, Municipal Home and they had little or no imme- Rule, pp. 12-15; Goodnow, Munic- diate and direct influence upon Ipal Government, ch. V, p. 68. the governmental position of the Charters and municipal abuses .boroughs. The corporation formed under the Tudors, as explained by by such a charter consisted not Dr. Goodnow. of the whole community, but of "The purpose of these charters certain persons, as a matter of of 'incorporation was to make the fact the most Important persons, boroughs, after the example of in the community. As a result of ^52 Subsequent Municipal, Chaeteks. 113 § 52. Subsequent granting of municipal charters. The doctrine of incorporation was fully confirmed dur- ing the reign of Henry VII. The charters vested more the peculiar political conditions which afterwards obtained in Eng- land, these persons, who con- trolled the government of the borough, became subservient at first to the crown, and later, that is, after the revolution of 1640 to 1688, to the nobles, who then as- sumed the political power in the kingdom. The municipal boroughs were used as tools in the interest of national politics, and thus be- came almost incapacitated for the performance of any efficient ad- ministrative work. The later functions which the government began to assume subsequent to and partially as a result of the Reformation, were therefore put into the hands, not of the munic- ipal corporation or its agents, but of officers who were to act in the limits of the municipal borough, as they acted in the rural dis- tricts, as mere agents of the cen- tral government. "The municipal organization was so bad, as a result of the prostitution of municipal institu- tions in the interest of the nat- ional politics of the country, that not only were the various func- tions of central government, such as the care of the poor, the sani- tary administration and the ad- ministration of the public schools when they developed, put into the hands of officers of the central government, but also the various new functions of municipal ad- ministration, the adoption of 1 McQ.-8 which was necessitated by the in- crease of population in the cities, were put into the hands not of the municipal authorities, but of new authorities which were estab- lished by special and local legis- lation. Thus, when it became nec- esary to provide for some method of lighting and paving the streets, these matters were entrusted either to the parishes which had become organized under the leg- islation of the Tudors, or to spec- ial trusts or commissions which were formed for their care. This was done notwithstanding the fact that the inhabitants were forced ' to contribute by means of special rates to the expenses of those branches of administration." Good- now, Municipal Home Rule, pp. 13 to 15, citing Gneist, Self-Govern- ment, etc., 595, and Blunden, "British Local Finance," Political Science Quarterly, Vol. IX, pp. 85, 86. In his work on Municipal Cor- porations, Mr. 'Glover states (p. 16), that the doctrines relative to these bodies in England were first reduced under a head and arrang- ed in a tangible form by Sir Robert Brooke, Chief Justice of the Court of Common Pleas, in his Abridgment in the second year of the reign of Philip and Mary, pub- lished in 1573, the fifteenth year of Queen Elizabeth, which doc- trines afterwards were set out in the Year Books. 114 MlCJNIOIPAL COKPOKATIOKS. § 52 power in the heads of these corporate bodies and the se- lect portions of them who were afterwards called the "governing bodies." But, as stated by Glover, "the in- habitants were the objects of those grants, and therefore such charters made no essential alteration in either the class or character of the burgesses. All the principles and usages out of which such particular character arose were still in force. So that, notwithstanding the general introduction of incorporation, the pure principles of the early municipal institutions of England continued as they had been from the earliest times; and the burgesses were still 'free inhabitant householders, paying scot and lot.' " In the reign of Henry VIII several charters of incor- poration were granted to communities in England, Ire- land, Wales and Scotland. By these charters the prin- cipal power was placed in ' ' select bodies, ' ' and under the claim of prescription the corporations were said to have the exclusive right of electing their own officers; and in some instances, also, the members to Parliament. For the purpose of securing assistance in the House of Commons, Queen Elizabeth discovered the expediency of obtaining an influence over the boroughs. The estab- lishment of the corporations, with their governing bodies, afforded her an opportunity of obtaining this end; and these institutions which were designed for dif- ferent purposes were now applied to incline the boroughs in support of the crown. Several charters granted by Elizabeth stated that the boroughs had been "incorpo- rated" from time immemorial and had enjoyed many privileges by prescription. During the reign of James I the gradual introduction of corporations as well as their general adoption was re- markable. In the king's first speech to the House of Commons the members of Parliament were described, for the first time, as burgesses of the towns and corpora- tions. During this reign the elective franchise was de- clared to be in the "inhabitant householders, resident in the borough and paying scot and lot." § 53 JtTDICIAL FOKFEITUKE OF ChABTEKS. 115 During the reign of Charles I not less than eight boroughs were restored, which added sixteen members to the House of Commons. In the reign of Charles II the corporations returned exclusively or principally the majority of the represen- tation of the Commons. But, on the Restoration an as- cendancy was sought to be obtained over all the cities and boroughs throughout the kingdom.®'' § 53. Control of local corporations by the Crown — ^judicial forfeiture of charters. As is well known, the forfeiture and surrender of municipal charters occurred under James II and Charles II. The method by which the Crown destroyed munici- pal freedom may be described briefly: In 1661 a statute was enacted providing that no char- ter should be avoided for anything that had passed ; that an oath should be taken and declaration subscribed by all officers in the cities, boroughs, corporations and cinque ports, and in event of refusal all such officers were to be removed by commissioners. Power was conferred upon these commissioners to restore those removed, and place other members in the vacancies which should oc- cur. In accordance with the fixed plan, extensive use was made of such opportunity for displacing the old members of corporations and substituting creatures of the crown, officers of state and non-residents for the prin- cipal inhabitants of various places. Accordingly, it thus came to pass that the continued existence of all corporations rested alone upon absolute submissive compliance with the will of the Crown. The administration of justice was usually in the hands of the king's magistrates, especially in Middlesex, where all jurors were returned by city sheriffs. Hence, it was suggested, as stated by Glover, "that a judgment of for- 97. Condensed statement from History of Boroughs, "Introduc- historlcal sketch in Glover, Mun. tion," from which Glover derives Corps., pp. 29 to 32. most of his information touching See Merewether & Stephens, the granting of charters. 116 Municipal CoEPOBATioNS. §53 feiture obtained against the corporation of London would not only demolish that body, but intimidate the rest of England by so striking an example." Therefore, a quo warranto was instituted in the court of King's Bench against the corporation of London. As was anticipated by the king and the Crown lawyers the court pronounced judgment against the corporation, namely, that the liberty, privileges and franchise of the mayor, commonalty and citizens, being a body politic and corporate, should be seized into the king's hands as forfeited. London having thus lost its municipal inde- pendence was entirely subservient to the court from this time to the Eevolutioii.®* Immediately after the forfeiture of the charter of Lon- don the king sent his officers into all parts of his realm to terrify the corporations to surrender their charters by threat of similar measures. As a result it appears that the greater portion of the communities voluntarily surrendered their charters through the agency of the select bodies. Informations of quo warranto were brought against the refractory, and, it is a matter of his- toric knowledge that the judges of assize, in their circuits, prostituted their influence and authority to forward these encroachments of the Crown, and consequent- ly all municipal rights and privileges were nearly destroyed, since the charters of incorporation were seized, surrendered, granted and annulled, as pleased the king, to answer the purposes of various elections.®' Not only were the charters of the municipalities in England thus forfeited and surrendered, but in like man- ner charters of towns in the English colonies in America, as in Connecticut, Mas'sachusetts and Rhode Island. Subsequently during the reign of William and Mary the charters thus destroyed under the reign of James II and Charles II were restored by act of Parliament.' 98. Rex T. London, 8 Howell's 99. Glover, Mun. Corps., Hls- State Trials, pp. 1039, 1358; 1 torlcal Summary, pp. 32 to 34. Stei)hens' Emglish Const, ch. 7, 1. 3 Macaulay. Hist, of Eng. p. 455. land, ch. 15. § 54 PuKPOSEs OF Early Incoepokation. 117 § 54. Purposes and effect of early English municipal corporations. From this examination of the development of local in- stitutions and the granting of charters to local communi- ties, it thus appears that, originally the establishment of boroughs and municipal corporations in England was solely for the benefit and protection of the members of the local community. As we have seen, the peculiar social and economic conditions of thickly populated dis- tricts, differing as they do from those of rural and sparsely poxjulated regions, gave rise to the necessity of investing local communities with powers of local self- government. In course of time, as mentioned above, these local communities were employed as agencies of the central government when to this extent they as- sumed a public character. It seems that they were so employed chiefly because of their private wealth, in- fluence and importance.^ To be more specific, the original purposes of the in- corporation of local communities were: First, to en- courage 'commerce by facilitating the formation of guilds with power to make their own regulations, and thus give security to commercial associations; and, sec- ond, bestow upon the most important towns a degree of independence by giving them a domestic jurisdiction, or the "investing of the inhabitants with the power of gov- erning themselves."^ In brief, as expressed by Glover: "The regulation of the municipal district and its inhab- itants, the preservation of the public peace within it by a magistracy chosen by and from the incorporated body, and the administration of justice to the community in domestic tribunals were among the principal objects for 2. People V. Detroit, 28 Mich. "A government, supported and 228, 239, 15 Am. Rep. 202; Good- trusted by London, could in a now. Municipal Home Rule, eh. 11. day obtain such pecuniary means See Macaulay's Hist, of Bng., as it would have taken months to Vol. I, eh. 3, for description of collect from the rest of the Is- growth of English towns and land." their influence on the government 3. Glover, Mun. Corp., p. 14. of the Kingdom. He says that 118 Municipal Cobpobations. § 54 wMch provision appears to have been made in many charters of incorporation. ' ' * These charters gave the burgesses, in addition to a recognition of all their former privileges, the right of being a body corporate, with perpetual succession, of having a corporate name, suing and being sued, and holding lands in such name; their effect being to leave "the borough rights, the municipal government, the class of burgesses, their privileges, their courts, and customs untouched and unvaried. F rom such charter, it appears that incorporation was only an incidental circum- stance connected with the borough; which neither materi- ally altered its nature, constitution nor privileges, nor the character of its burgesses." ^ As towns or boroughs long existed in England before they had charters, the charters they received were not grants of original powers, but rather were confirmations of powers, liberties, franchises and privileges inherent in them and which they already possessed.* When the increased population in particular localities became a town or borough, that is, a collection of habitations enclosed with a hedge or fence,'' the particular cus- toms and liberties exercised by the inhabitants of a 4. Glover, Mun. Corp., pp. 1, 2. 6. "The liberties of the first 5. Glover on Mun. Corp., pp. cities must often have been mere li, 19. favors on the part of the lords English cities, according to who owned the soil and protected Stuhbs, finally secured these the dwellers upon it. Later these rights; "Free election of magls- liberties were the result of bar- trates, independent exercise of ju- gains between separate powers." risdiction in their own courts, and 1 Kemble, History of the Saxons, by their own customs, and the p. 307. direct negotiation of their taxa- "The grant of privileges con- tion with the officers of the ex- tained in the charters were in fact chequer." 1 Stubbs' Const. Hist. confirmations of privileges al- of Eng., p. 628. ready existing." . Wlllcox, Mun. The charters of Incorporation Corp., Historical Sketch, p. 2. which the cities subsequently ob- 7. Brady on Cities and Bor- tained gave them attributes of a oughs (2d Ed., London, 1722), <7Masi-private nature. 1 Kyd, Corp., p. 2; 4 Encyc. Britannlca (11th pp. 63, 65. Ed.), tit "Borough." § 54 PuBPOsE OF Eably English Chaetebs. 119 given town or borough for a long period, naturally became associated with, and, in fact, became the essence and spirit of the civic or communal life of that place; and as it appears that these customs and lib- erties widely differed in the several localities, it will be readily understood why the liberties and privileges con- firmed by charter varied so much. Tn order to insure recognition of the right to continue the exercise of these customs and liberties, already en- joyed, the inhabitants sought a charter confirming to them these rights, customs and liberties for which they agreed to do certain things for the benefit of the lord of the manor, e. g., perform feudal service and particu- larly to pay the rent due from each community as a whole in lieu of from each tenant severally. It thus ap- pears that such charters were in the nature of an admis- sion of the existence of these rights, customs and liber- ties upon condition. A change of the lord of the manor necessitated renewal of the charter. It is obvious that these charters were not original grants, something from a superior to an inferior, as is usually assumed, but a mere recognition of rights acknowledged as belonging to the inhabitants in their capacity as a community — rights already possessed which enabled them to regulate their own local affairs; rights conceded to be inherent, and, as of course, vested, in the inhabitants of every town and borough in their associated capacity as a town or borough. This is the Teutonic principle which sup- ports the governmental doctrine that local self-govern- ment is not a right granted by the central power, but a right inherent in the inhabitants of a populated locality, as a corporate and political unit. The numerous charters subsequently granted by the sovereign, particularly Queen Elizabeth, were to towns and boroughs which had been provided with charters by lords of manors, and these several Crown characters ex- pressly state that the towns and boroughs were imme- 120 Municipal Cobporatioks. §54 morially "incorporated," and many of them were, in the main, mere charters of confirmation, or what are kiiown as inspeximus charters.* 8. Further as to chief liberties recognized and granted, see 3 Hal- lam, Middle Ages, ch. 8; Hearn, Gov. of England, ch. 15, § 3; 1 Stephens, English Const., ch. 3. Glover says that the effect o£ the charters granted by the crown "■was to vest in the congregated inhabitants of such places a dis- tinct manor, seigniory; or exempt jurisdiction. The tenor of these documents unequivocally estab- lishes that on each community In- corporated a privilege was con- ferred, whereby the inhabitants of such place were exempted from all servile burdens or duties to which the great bulk of the popu- lation were generally subject." Glover, Mun. Corp., Historical Summary of Corporate System, p. 16. Early English charters recog- nized the right of local self-gov- ernment. "That charters to towns a.nd boroughs from the lords of manors were not original grants of powers, liberties and immuni- ties, but rather acknowledgments of 'liberties,' etc., already won, of existing states of fact with sanc- tion of continued future enjoy- ment, sometimes with the addition of new 'liberties' in consideration of a fee-farm rent, see 'The Litera- ture of Local Institutions,' Gomme, 1886, p. 65. "Ignorance, continued for cen- turies, of these tacts in England's history, or Indifference to them through failure to realize their importance, combined with too great devotion to Latinity, to the study of Latin, Its language, gram- mar, history, law and literature, have all combined to foster the underlying principle of the Roman system that all power emanates from the state, and to neglect and even to oblivion of the Teutonic principle that the central power Is derived from the union of local powers. When in England, about 1830, it was deemed wise to foster the develop- ment of local powers, the mis- chievous principle was favored that local powers were originally derived from the central power, instead of which the exercise of local powers should have beeji looked upon as a return to the former system, as we now know was the case through our better knowledge of the true character of Germanic Institutions. "We speak of these early char- ters as grants, but strictly speak- ing, the word Is Inappropriate. For if the lord of the manor granted something to his villeins, burgesses, commonality, etc., when he gave them a charter, so did they grant something in return — a quid pro quo — either feudal ser- vices or a fee-farm rent. Each householder either paid his share Individually, or, at a later date, it was paid collectively by certain men of the town acting for the town, or a lump sum was paid by the town acting collectively for all its householders. The word grant is a relic of the old idea that § 55 Feudal Chabtees. 121 § 55. Municipal government under feudal charters in England. The Norman conquest (1066) was followed by the feu- dal system in England, as, prior to that time, it had been established on the continent of Europe. Thus, in a very large degree, the distinctive and distinguishing charac- teristic of the Teutonic nuTnicipal system of local self- government, as outlined above, gave way to military rule and centralization of power— an aristocratic rule — which marked the Norman principles of government. Grants to local communities were slow and reluctantly made by the king aud nobles. The right of local govern- ment was not recognized. The chief principle of the Nor- man charters was that they conferred the right to pro- tection of person and property, rather than the right of local self-government.' But town and city government was not the dominating trait of the Norman in England. Upon the castle and his vast estate, with liveried attendants and a large ret- inue of retainers, his best hopes and aspirations were ' centered. Strongly contrasted with the Saxon idea of what the lord or the King did was tions the charters of cities were, of grace, and therefore subject to as their name implies, coi^tracts revocation at his will. Royal entered into between the corpora- liharters read: 'We ... of tors on the one hand, and the i;ur certain knowledge, mere mo- King or feudal lord on the other, l;ion and special grace ... by which liberties and franchises 'l?rant . . .,' etc. It took cen- were bartered for personal ser- turies to evolve the idea of the vices or for money. The rights contractural relation of the par- and powers which the charters ties, and that both are equally conferred were of the nature of bound to carry out their agree- those secured to the people at inent." The Origin of Municipal large by our constitutions. They Incorporation In England and in were Intended to be permanent the United States, by Amasa M. and could not be lawfully taken Eaton, 25 Reports, American Bar away; they were in the true sense Assn., pp. 303, 304. of the word, franchises." Rey- Municipal charters as con- nolds v. Baldwin, 1 La. Ann. 162, tracts. "In the country from 167. which we derive our ideas on 9. Glover, Mun. Corp., pp. 11. the subject of municipal corpora- 14. 122 Municipal, Cobpobations. § 56 government, the Norman believed in the centralization of wealth and power. The Norman's attempt to sup- plant the old Saxon freedom, the chief feature of which was home government, as above shown, with the feudal system of the Continent, proved a failure after centuries of conflict. The civil divisions of England, its shires or counties, hundreds,, tithings or townshipsf or towns, dates from Alfred. "In all the changes of policy, of dynasty, of peace and internal Avar, and even of conquest which that country has undergone since his day these organiza- tions have never been abated or abandoned. They are substantially at this time what they were before the Nor- man invasion."^" § 56. The guilds or fraternities — struggle of the town for freedom. The history of the development of municipal corpora- tions, particularly in England and Continental Europe, ■ would be incomplete and not well understood without some information concerning the organizations known under the general name of guilds or fraternities, already mentioned, and which flourished on the continent of Europe and in England. It is certain that these institutions sustained certain political relations to the English borough and the towns on the Continent,^^ and the opinion is prevalent that they largely influenced and directed the growth of free- dom and the vigor of community life, and thus beqame 10. Dissenting opinion of In one respect, at least, tlie Nor- Brown, J., in People v. Draper, man ideas of governmental cen- 15 N. Y. 532, 561, 562; Angell and tralization produced a bad effect. Ames on Corp., sec. 21; 2 Kent's It led to a consideration of munic- Oomm. 278; 1 Bl. Comm. 114; Ipal corporations as merely gov- Crabbe's Hist, of Eng. Law, ch. 2 ; ernmental areas or districts, with- 5 Mackintosh, Hist, of Eng., ch. 1; out autonomous rights or private, Reeves' Hist, of the Eng. Law legal duties. (Finlason) Introduction. 11. Goodnow, Municipal Gov- ernment, ch. IV, pp. 55, 56. § 56 The Guilds ob Fbaternities. 123 instrumental in aiding the development of popular government, and the growth of constitutional liberty. Many of these guilds received confirmation from the public authorities which established them to regulate the trade to the exclusion of town officers. The history of these guilds presents a continuous struggle of the handi- crafts men with the town for privileges. In many in- stances the king granted broad charter powers. "^^ Green declares that the advent of the guilds marked the time when government of English towns became more really popular than it ever again became until the Municipal Reform Act. "It had passed from the hands of oligarchy into those of the middle classes, and there was nothing as yet to foretell the reactionary revolution by which the trade guilds themselves became an oligarchy as narrow as that which they had deposed.^* The origin of guilds is uncertain. They were mediae- val associations, whose members were pledged to assist each other in the pursuit of common ends. Probably the craft guilds sought a complete control over their trade, and organization appeared to be an effectual method to obtain such monopoly. Doubtless those engaged in other pursuits were in like manner drawn together into com- pact societies. Security against tyrannical and corrupt administration of the law was also essential to all classes in those days, and such security could be best given by organized associations.^* In early Germany the organization into guilds of the merchant classes gave them an important political in- fluence.^** 12. Brentano on Guilds, ch. 4 the towns. Shaw, Municipal Gov- Guilds. "The most active and ernment of Great Britain, ch. 21. Influential elements in the medie- 13. Green's Short History of val town life were the associations the English People, ch. IV, S of the craftsmen and merchants IV. of a like trade." At first they 14. Mrs. J. R. Green, Town were voluntary organizations for Life In the Fifteenth Century, Vol. social purposes and mutual ben- 2. ch. V. eflt. They were active in securing 15. Goodnow, Municipal Gov- charters- of self-government for ernment, ch. IV, pp. 55, 56. 124 Municipal Cokporations. § 56 Guilds existed in Spain under the guidance of magis- trates, with by-laws and regulations of their own ap- pointment.^® In France guilds and corporations generally prevailed. These organizations, says Masson, imparted "stability and the elements of success to professions which could have produced nothing if left to isolated action and indi- vidual effort."" Louis VII confirmed to the privileges of the Hans the guilds of Paris.^* It appears that the most ancient secular corporations established in England directly by the king's charter were guilds or associations or companies of merchants, traders and artisans; and the inference seems reasonable that the custom of embracing whole towns or communi- ties by charter was introduced in imitation of these or- ganizations.^® Willcock informs us that the merchant guilds existed in England before the Conquest, and that they were doubtless the earlier models of corporations, although perhaps not acknowledged to possess munic- ipal and exclusive jurisdiction.*" It is certain that the introduction of these guilds wrought an important change in the condition of boroughs, and also in some respects augmented the power of the Crown.*^ Guilds were of three kinds; trade, ecclesiastical and social religious. Trade guilds were classed as merchant and craft. As already mentioned, these organizations exerted a powerful influence on society and government. 16. 1 Prescott, Ferdinand and 20. Willcock, Mun. Corp., p. 4, Isabella, p. 28. rote (b). 17. Masson, Mediaeval France, Guildan is a Saxon word, and p. 48, 49. signifies to pay; that is, that all 18. Masson, Mediaeval France, of such fraternity shall be sub- eh. 3, p. 63. ject to pay scot and lot. 8 Coke 19. Kyd, Corp., 63, 65. 125. See The Origin of Municipal In- See 1 Merewether and Stephens, corporation in England and the Hist, of the Boroughs and Mun. United States, Amasa M. Baton, Corps, of the United Kingdom, p. 25 Reports, Am. Bar Assn., p. 340 307. et aeq. 21. Glover, Mun. Corp., pp. XIV, XV. §56 The Guilds oe Fraternities. 125 After tlie Norman conquest it appears that the social- religious guilds lost their power in England, but the ecclesiastical associations increased in wealth and influ- ence. Henry VII seized their vast accumulations of property and thereafter it was vested perpetually in the Crown. The guild merchant steadily increased in im- portance in England. In the 12th century these organi- zations became semi-public bodies and by charter practi- cally monopolized the commerce of the community where located. In England the craft guilds appeared to have been an outgrowth of the guild merchant and were formed by the masses of workmen, journeymen and ap- prentices. They flourished until the 19th century. In that country the various craft guilds represented all ranks and classes in the industrial world — the capitalist, the middleman and the workingman.^* 22. The craft guilds. "The early history of the craft guilds, like that of the municipalities, is the story of communities in first strength of youth, growing by force of their own vitality into forms which can be reduced to na mechanical regularity or order, and ever plastic to take on new stapes according to the shifting exigencies of an age when in- dustry, commerce, local govern- ment, were ali in a state of revolu- tion. In the pride of their first creation, in the humiliation of their later apparent subjection, in the victorious results at last of their long discipline, the guilds re- flected successive movements in the great change that transformed English society; and It would be hard to find a single formula In which to express a life so free and various. Like the boroughs their systems of government ranged from constitutions which, II not democratic, were at least republican, to constitutions which placed in command an oligarchy whether limited or despotic; so that we can scarcely • say that the towns borrowed their methods from the guilds, or the guilds from the towns, at a time when both alike were perhaps tentative- ly feeling their way towards the only solutions of the problem of government which the time and occasion admitted. They had the same period of intense activity, from the awakening of the new life of England under the Norman kings, till under Henry the Seventh its Industrial and com- mercial position was definitely established. The very diflaculties by which they were hemmed in were the true conditions of any lively growth; and it was not till the sixteenth century, when the militant life of the crafts came to an end, that a fatal monotony settled down on their associations — a dreary uniformity both of con- 126 Municipal Coepoeations. §57 § 57. Decadence of municipal government in England prior to the Reform Act. The abuses of municipal corporations in England grew, in course of time, to be so numerous and diversi- fied that such institutions became intolerable and a se- rious detriment to honest and efficient local government. There was no uniformity in the charters, which showed a disregard of any settled or systematic plan for the im- provement of municipal policy corresponding with the progress of society. The municipal government was removed from the peo- ple, it was in the hands of privileged classes, and was in a large measure subservient to the Crown and had been so from the days of Charles 11 who forced the local com* munities by means of writs of quo warranto to send members to Parliament to act as directed by the central authority. stitution and of policy, which makes their period of triumphant prosperity and imminent decay a record at once tedious and dis- heartening." Mrs. J. R. Green, Town Life in the Fifteenth Cen- tury, Vol. 2, ch. V. The quasi incorporation of guilds. "It may be admitted that some knowledge of the Roman system of incorporation lingered with the ecclesiastics after the withdrawal of the Roman power from Britain. This lingering knowledge and the training in canonical law of the ecclesiastics are enough to explain the con- tinued existence in England, throughout the Anglo-Saxon period, of the incorporation of ec- clesiastical Institutions. It Is sua. pected that a knowledge of eocles- Isstlcal incorporation had an in- fluence upon the quasi incorpora/- tlon of guilds, whether they par- took of a charitable nature (in providing relief to sick and dis abled members) or whether they partook of a business nature (in providing pecuniary benefit to those of the particular craft). This led finally to the incorpora- tion of trading companies, the im- mediate predecessors of the char- ters to the American colonies that atterwards became Independent states. But municipal incorpora- tion in England originated in a different way." The Origin of Municipal Incorporation In Eng- land and in the United States by Amasa M. Eaton, 25 Reports American Bar Assn., p. 294 (1902).. 23. Glover, Mun. Corp., p, XXXVIL § 57 Decadence of MuNiciPAii Gtovernment. 127 The council was the controlling power; sometimes it was a self-perpetuating body, and sometimes the mem- bers thereof were elected by designated freemen or voters. "The municipal corporations," says Vine, "were for the most part in the hands of narrow and self- elected cliques, who administered local affairs for their own advantage rather than for that of the boroughs. ' ' ^* Glover thus describes the municipal conditions: "In many towns there was no recognized commonalty; in others, where existing in name, it was entirely dispro- portioned to the inhabitants, and consisted of a very small portion, not comprising the wealth, intelligence, or respectability of the town. Besides, the corporations were viewed by the great body of the inhabitants of the corporate districts with suspicion and distrust, as having interests distinct from and adverse to those of the gen- eral community, whom they studiously excluded from a participation in the niunicipal government. Their mem- bers frequently consisted of the relatives and adherents of particular individuals and families, while the prin- cipals of their associations, and those which regulated admission or exclusion, had rarely -any connection with the common benefit of the district, or the wishes of its inhabitants. ' ' Moreover, the sphere of municipal functions were cir- cumscribed. By-laws might be enacted and enforced re- lating to local affairs. Sometimes specified corporation officers were empowered to administer civil and criminal justice and preserve the peace in the locality. Usually in the more important centers, the control of the streets and lighting was in the hands of the central government through commissions created by special act of Parlia- ment.^' "It became customary," says Glover, "not to rely on the municipal corporations for exercising the powers in- ' cident to good municipal government." He further says: 24. vine, English Mun. Instltu- In the U. S., ch. 3, pp. .43, 44; tlons, p. 10. Goodnow, Mun. Gov., ch. 5, pp. 70, 25. Goodnow, City Government 71. 128 MUNICIPAX, CORPOEATIONS. § 57 "Local acts of parliament conferred powers for various purposes, not upon the municipal oflScers, but jipon trustees or commissioners, distinct from them; so that often the corporations had scarcely any duties to perform. They possessed the municipal gov- ernment of the town; but the efficient duties, and the responsibility, were transferred to other hands. In fact, most of the charters granted by the Crown since the com mencement of the last (18th) century, were usually re- quired either to secure the peace of particular districts, or to regulate the mode of swearing in certain local of- ficers, or to assign additional magistrates to various influential boroughs. But during these reigns, the abuses arising from the select bodies, and the admission of non- resident honorary freemen, who overawed or neutralized the votes of real burgesses, completely perverted, if not destroyed, the separate exclusive jurisdictions of boroughs, as the means of efficient local government. ' ' ^^ At this period (1835) the ancient traditions and the free and vigorous life of the boroughs of the fifteenth century, as Mrs. Green declares, had disappeared ut- terly. Even the limits of the old ' ' liberties ' ' of the towns were forgotten. True, the form of local government re- mained, as there were mayors, town councils and bur- gesses, but the same intelligent author says, the latter rarely participated in municipal elections, and the local officers themselves "had lost all the nobler character- istics of their former authority. * * * As the memory of municipal life died away there were boroughs where at last no one suspected that the corporate body had ever existed for any larger purpose than to choose mem- 26. When defects in govern- ministration of government, ce- ment become the common in- casion such disorders in society as terest. "But, a profound histor- are excessive and intolerable. It ian observes (Hume's Hist, of becomes the common interest to England, Vol. 11, p. 441), there is discover and to apply such reme- aii ultimate point of depression as dies as will most effectually re- well as of exaltation, from which move them." Glover, Mun. Corp. human affairs naturally return in Historical Summary, pp. XXXVI, a contrary progress. When de- XXXVIL fects, either in the form or ad- §58 Municipal Cokpoeation Eefoem Act, 129 bers of Parliament, knowing no other public | honour, or privilege and called to no other public service, the free- man saw in a single degraded political function the sole object of their corporate constitution; the representation of the people was turned by- them into ' a property and a commerce' and this one privilege, fed on corruption and private greed, survived the decay of all the great duties of the ancient civic life."^^ § 58. The English Municipal Corporation Reform Act. In view of the deplorable condition into which Eng- lish municipal administration had fallen, and the conse- quent decadence of local civic life, as outlined in the last section, a committee of the House of Commons, fol- lowed by a commission, was appointed in 1833. The commission prosecuted careful researches into the local 27. Mrs. J. R. Green, Town Life in the Fifteenth Century, Vol. 1, ch. 1. Deterioration of municipal life in England by Willcock. In con- cluding his treatise on the law of Municipal Corporations of Eng- land, just prior to the Municipal Corporation Reform Act (1835), Willcox informs his readers that, it was not from admiration of the corporate system that he was in- duced to devote his attention to the laws by which it is regulated. Proceeding he says: "I have travelled through this work, as a merchant from Medina to Da^ mascus, a weary waste of way: there is as little to gratify the mind in the investigation, as to please the eye in the desert, and at every step of my progress, I have contemplated the advantage of change." He suggested alteration in the fundamental organization of mu- 1 MCQ.-9 nicipal corporations, but stated that he was not "visionary enough to imagine that the present will be improved — to fancy that any parliament will be found willing to relinquish their influence over venal boroughs — that aldermen in the house will be allowed by their constituents to abandon the priv- ileges of ancient cities and towns, however much in restriction of common right, however harassing to the subjects in general — that the majority of the justices of the peace will deem their tenure of office and influence more secure under the election of their neigh- bors than under the appointment oi lords lieutenant, or that there are none alive to the grace and advantage of mystery, which, robed with it as with a garment, the law might blush to throw aside." Willcock, Municipal Cor- porations, pp. 513, 515. 130 Municipal CoRPOKATroNS. § 58 conditions of eacli municipality, concluding its labors in 1835. As described by an English writer: "Its report laid bare not merely grotesque anomalies, but the grossest abuses of election and administration in boroijghs ruled by small, corrupt, and irresponsible oligarchies which then abounded in England, and, still more in Scotland. The Reform Act had paved the way for the purification of such urban communities, by disfranchising the small- est and most venal of them, by extending the boundaries of many others, by enfranchising great towns which had remained outside the pale of representation, and by con- ferring the suffrage, theretofore monopolized by free- men and other privileged classes, on the unprivileged mass of ten-pound householders."^' As a result in 1835 various chartered municipalities of England were brought under a comprehensive and uniform scheme of constitution and government. This was accomplished by the Municipal Corporation Act of that year to the end, as the act recites, "That the same might forever be and remain well and quietly governed." Thirty-two amending acts were added between 1835 and 1882. In the latter year all these acts were consolidated in the Municipal Corporation Act of 1882, which is the foundation of all municipal government in England and Wales.29 This Act sums up the experience and progress of over four hundred years. London is legislated for separately, but all other boroughs and cities of England and Wales are now regulated by the provisions of this Act. The 28. XI The Political History Britain, ch. II; Lowell, the Gov- of England (Brodrick and Father- ernment of England, Vol. 2, ch. Ingham), pp. 360, 361. XXXIX, p. 144 et seg. See Glover, Mun. Corp., Hlstor- 29. 45 and 46 Vict., c. 50, ical Summary, p. XXXVII et seg; passed 'August 18, 1882, and tak- Munro, The Government of Euro- ing effect December 31, 1882. pean Cities, ch. Ill, The Govern- The Municipal Corporation Act, ment of English Cities; Shaw, 1835, means the recited Act of Municipal Government of Great King William the Fourth. lb., § 7, §58 Municipal Coepoeation Eefoem Act. 131 Municipal Corporation Act of 1882, weeded out some forty-nine decayed boroughs.*" The Act does not extend to Scotland or Ireland, nor, as above stated, does it apply to London nor to the metropolitan boroughs created by the London Govern- ment Act, 1899,^^ except so far as particular provisions are rendered applicable to such boroughs by reference to the Local Government Acts, 1888 and 1894, in which those provisions had already been incorporated.*^ 30. 9 Enc. of the Law of Bng., tit. "Municipal Corporations." 31. 62 and 63 Vict., c. 14. 32. Arnold's Law of Municipal Corporations (6th Ed. London), p. 3. Application of act, 1882. "This act shall apply to every city and town to which the Municipal Cor- poration Act, 1835, applies at the commencement of this Act, and to any town, district or place where- of the inhabitants are incorporat- ed after the commencement of this Act, and whereto the provis- ions of the Municipal Corpora- tions Acts are under this Act ex- tended by charter, but to no other place." 45 and 46 Vict, o. 50, Sec. 6. Main distinctions among places subject to tlie Municipal Corporation Act. 1. Such a place may be either a city or borough. This is a distinction of "rank" only, and is of no practical im- portance. In Coke's time it was said that "a city is a borough in- corporate which hath or hath had a bishop." Coke, Littleton, 109 b. English writers declare that this statement is no longer correct, even if true In Coke's day. "At the present date it can only be said that a borough which gives its name to a Bishop's See haa some claim to be made a city. The creation of cities rests with the Crown, which can declare any borough to be a city by letters patent. Birmingham (1888), Leeds and Sheffield (1893), Brad- ford and Hull (1897), and Cardifl! (1905), were created cities by let- ters patent, although at the dates in question they did not give a title to a Bishop. Southwell, though it gives such a title, has rot been considered worthy of the dignity. Ripon's claim to the title was for some years in dispute, but was eventually recognized by a section inserted in a local Gas Act." 2. A borough (or city) may be cither a "county borough" or a "non-county borough;" county boroughs are the sixty-one bor- oughs (one now absorbed in a new county borough) mentioned in Schedule 111 to the Local Gov- ernment Act, 1888, each of which on June 1st, 1888, had a popula- tion of 50,000 or was a county of itself; and the fourteen additional boroughs which have up to the present time (1910) been raised to the same rank: as is well known, the council of such a bor- ough have, subject to certain ex- 132 Municipal Coepoeations. § 59 § 59. English municipal corporations under the Reform Act. For the purpose of identification the municipal corpo- ration is given a name. ' ' The municipal corporation of a borough shall bear the name of the mayor, aldermen and burgesses of the borough, -or, in the case of a city, the mayor, aldermen and citizens o^the city."^* The act specifically defines who are to be regarded as burgesses and citizens. Thus a burgess must be enrolled, and to be entitled to this privilege, he must be of full age, in occupation of some qualifying property, must have resided for twelve months in the borough or within seven miles of it, must have paid taxes, etc.^* ' ' The municipal corporation of a borough shall be cap- able of acting by the council of the borough, and the council shall exercise all powers vested in the corpora- tion by this act or otherwise." The council consists of the mayor, aldermen and councillors.^® The council is said to be "the soul and the hand of the corporation,"^" and occupies a much more independent and autocratic position than the directors of a com- pany.*'^ It is the body created to manage the affairs of the corporation, but is not itself incorporated. It differs in this respect from the councils of the various metro- ceptions, all the powers, duties 33. 45 and 46 Vlct., C. 50, Sec. 8. and liabilities of a county-council. The effect of this provision is to 3. "Non-county" boroughs fall preserve the identity and continu- into different classes, theclassifica- Ity of a corporation, notwithstand- tion depending upon (1) whether ing alteration in its name and the borough in question was in style and mode of electing its 1888 a quarter sessions borough; members. Arnold's Law of Mu- (2) whether it had in 1881 a nicipal Corporations (5th Ed., population of 10,000; and (3) London), p. 9. whether it had in 1888 a separate 34. 45 and 46 Vict., ch. 50, § 9. commission of the peace. All 35. 45 and 46 Vict., ch. 50, § 10. such boroughs form part of the 36. Hyde Corporation vs. Bank county for County purposes; but of England, 21 Ch. Div. 176, 51 L. the powers and duties of their J. ch. 747, 46 L. T. 910, 30 W. R. councils vary according to the his- 790. tory of the particular borough. 37. 9 Ency. Laws Eng., tit. Arnold's Law of Municipal Cor- "Municipal Corporations." .porations (5th Ed. London), p. 5. § 59 Municipal Corpokation Ebfokm Act. 133 politan boroughs, for, in tbe case of such boroughs, it was the councils, and not the inhabitants, who were in- corporated by the London Gavernment Act of 1899.^^ Likewise, it was the councils, and not the inhabitants, of counties, county districts and parishes, who were con- situated corporate bodies by the Local Government Acts of 1888 and 1894.39 "The councillors shall be fit persons, elected by the burgesses." The act prescribes their qualifications in detail. The term of office of a councillor is three years. "On the ordinary day of election of councillors in every year, one third of the whole number of councillors for the borough, or for the ward, as the case may be, shall go out of office, and their places shall be filled by election. The third to go out shall be the councillors who Lave been longest in office without re-election."*" The aldermen are elected by the council, and no one shall be qualified to be elected or to be an alderman unless he is a councillor or qualified to be a councillor. The number of aldermen is one-third of the number of councillors. The term of office is six years, double that of the councillors. One-half of the body — the longest in office — retire in rotation every three years. If a coun- cillor is elected to and accepts the office of alderman he vacates his office of councillor. An English writer observes: "The aim of the legis- lature seems to have been to create or rather perpetuate in the aldermen of the borough an office of dignity and influence in local affairs, and of greater prominence than that of councillor ; and, in accordance with this, aldermen have generally been selected from justices of the peace or persons whose rank and position in the county, expe- rience in local affairs or special knowledge, peculiarly qualifying them to aid and elevate the work of local self- government. ' ' *^ 38. 62 and 63 Vict, ch. 14. 40. 45 and 46, Vict, ch. 50, §§ 39. Arnold's Law of Mun. Corp. 11, 12, 13. (Stb Ed., Lend.), p. 25. 41. 9 Enc. of the Laws of Eng., tit, "Municipal Corporations." 134 Municipal Coepokations. §59 "The mayor shall be a fit person, elected by the coun- cil from among the aldermen or councillors, or persons qualified to be such." His term is > one year, but he con- tinues in office until his successor has accepted office and made and subscribed the required declaration. He re- ceives such remuneration "as |he council thinks reason- able."*^ He shall, subject to the provisions of the municipal corporation act respecting justices, "have precejdence in all places in the borough." The mayor may, from time to time, appoint an alder- man or councillor to act as deputy mayor during the ill- ness or absence of the mayor. The deputy mayor may, while acting as such, do all acts which the mayor as such might do, except that he shall not take the chair at a meeting of the council unless spe§§ 68, 69 Home Government, 149 And state organic laws generally provide that the leg- islature shall create a nniform system of county, town and municipal government.^* In California any county, city, town or township may make and enforce within its limits all local police, sani- tary and other local regulations not in conflict with the general law.*^ In some states powers of a local, legislative and ad- ministrative character are conferred upon organized townships, incorporated cities, villages and upon coimty supervisors. In California, Colorado, Minnesota, Missouri and Washington cities (usually of a specified population, large cities) may frame their own charters, and in effect, establish their own local governments, in harmony with the general law. All these subjects are fully considered elsewhere.^* § 68. Organs of local government as public quasi- corporations. Other organs of local government, as the New England towns, school, police, sanitary, irrigation and reclama- tion districts, and the various local governmental areas established to aid the administration of public functions, which are usually classified under the general designa- tion of public quasi-corporations, are treated in other parts of this work. § 69. Home government is the central political idea. The history of the early settlements in America establishes clearly the fact that the idea of local self-government found a firm lodgment on our soil. The colonists possessed a knowledge of town government as it had developed in England, as a result of its exer- cise for centuries. The town system was recognized rather than created. Towns and boroughs in England 84. Stlmson, Am. Stat. Law 85. Const. Cal. XI, § 28. Sec. 500. 86. Chapters 3 and 4. 150 MuNICIPAIi COEPORATIONS. §69 were regarded by the colonists as an integral part of the organic or constitutional governmental machinery of Britain. They constituted local areas, with self-govern- ment in all local affairs. When colonies were established in this country this town system was recognized and be- came the dominating governmental idea.*^ The history of the colonies and the development of our political institutions fully demonstrates that our ances- tors came to erect systems of more perfect civil liberty. At the moment of their landing they possessed institu- tions for the administration of public affairs, which con- tained, in substance, all that ages had done for human government. They stoodi up for their charters, which, as they contended, authorized them to conduct their own affairs by their own councils. They denied that their own charter governments should be established on the other side of the Atlantic. A home, or local, government, existing immediately within their limits, was their cen- tral political idea.®* 87. W. p. Allen, Town, Town- ship and Tithing. (Essays and Monographs, 1890), p. 279. For history of New England towns, see Warren v. Boston, 2 Gray 84; Hill v. Boston, 122 Mass. 344. 23 Am. Rep. 332; Bloomfield v. Charter Oak Bank, 121 U. S. 121, per Mr. Justice Gray. Our municipal freedom is greater tlian In England. "Our system of local and municipal government is copied In its general features from that of England." Mayor, etc., v. Ray, 19 Wall. (U. S.) 467, 476. "Our ancestors In the settle- ment of this country brought with them these notions of English liberty and polity, and they found here a field of unexampled extent for their free development. Ac- cordingly the system of entrust- ing the direction of local affairs to the local constituencies has, from the earliest colonial periods, been carried by us to a much gi-eater extent than in England." 1 Dillon, Mun. Corp. (5th Ed.), Sec. 14. Our municipal corporations "generally possess power of local self-government far greater than those of the English town." 1 Beach Pub. Corp., § 30. "Our own towns were establish- ed in accordance with the English principles of liberty but general- ly possess greater powers of local self-government than their English nrototypes." State ex rel. v. Bar- ker, 116 Iowa 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222. "In England there are very few, if any, corporations, which ex- § 69 Home Government. 151 Among the colonists the creation of government for the management of local concern, in most cases, an- tedates the establishment of the central or state author- ity. It should be observed, however, it is not the accept- ed theory in this country that the states have received delegations of power from independent towns; on the other hand, the theory is that the state governments precede the local, create the latter at discretion and en- dow them with corporate life. "But, historically, it is as difficult to prove this theory as it would be to demon- strate that the origin of government is in compact, or that title to property comes from occupancy. The his- torical fact is, that local governments universally, in this country, were either simultaneous with or preceded the more central authority." Judge Cooley thus concludes an exhaustive examination of this question: "The gen- eral fact was, that whether the colonial or local authority should originate first depended entirely upon circumstances which might make the one or the other the more immediate need. But when both were once estab- lished, they ran parallel to each other, as they were meant to do, for all time." *' actly resemble our town corpora- of local self-government is, like tions. The charters of these Milton's angels, cities, etc., usually confer particu- "Vital in every part, lar private privileges upon the Cannot, but by annihilating, members of the corporation, so die." that the corporation is not merely "The system is one which al- publlc, but must be considered as most seems a part of the very na- in some respects a private corpor- ture of the race to which we be- sttion." (1818) Bustls v. Parker, long." Cooley's Const. Lim. (6th 1 N. H. 273, 276. Ed.) 225. 88. The Municipal Code of 89. People v. Hurlbut, 24 Mich. St. Louis (McQulllin), p. 324, 5 44, 9 Am. Rep. 103, citing Hutchin- 20. son's Massachusetts Bay, Ch. 1; See Webster's Plymouth Orar Washburn's Jud. Hist, of Mass., tion on the first settlement of Ch. 1; Body of Liberities, Sees. 62, New England. 66, 72; Eliott's New England, Vol. To those trained in the school 4, pp. 425, 427. of the Anglo-Saxon race, in any Local governments precede part of the world, the principle general governments. Judge 152 Municipal Coepoeations. ,70 § 70. Local self-government is recognized under our system — its benefit. It thus appears that, in this country from the begin- ning, political power has been exercised by citizens of the various local communities as local communities, and this constitutes the most important feature in our sys- tem of government. The declaration of Magna Charta "that no freeman shall be imprisoned or disseized of his freehold but by Cooley also points out that in Connecticut the several settle- ments originated their own gov- ernments and the central govern- ment was later in point of tima citing Trumbull's Hist, of Conn., Vol. 1, pp. 132, 498; Palfrey's New. Eng., Vol. 1, p. 454. Likewise, in Rhode Island, township organization was first in order of time. Arnold's Hist, of R. I., ch. 7. See opinion of Brown, J., in People V. Draper, 15 N. Y. 561; note to Commonwealth v. Rox- bury, 9 Gray 503; Shumway v. Bennett, 29 Mich. 451. "In most of the New England colonies some of the towns were older than the central govern- ment; and In Connecticut and Rhode Island the latter was con- sidered more as a federation of towns than as a superior sover- eign authority." Fairlie, Local Gov., ch. 2. The idea of local self-govern- ment was not so firmly planted and exercised in the colonies of the south as in New England, and in that part ' of the north- west territory which became the state of Ohio, this power was ex- ercised only to a limited extent during a particular period until 1820. See article on Evolution of Township Government in Ohio by J. A. Wilgus, in report of 1894 of American Historical Associ- ation, pp. 403-412. The following from Mr. WilguS' account, may be of interest: "When the settlers who had journeyed down the Ohio In the Mayflower landed at what is to- day Marietta, the 7th of April, 1788, they found it desirable to establish some sort of regulations to govern their dealings with one another. Accordingly on the next day they promulgated a code of laws by nailing them to the trunk of a large tree on the river bank. It must be observed that this was merely a voluntary agreement to meet the wants of the community, until the officers of the government of the North West Territory, provided for by the ordinance of 1787, should ar- rive and regularly Institute gov- ernment." Walker in his History of Ath- ens County, Ohio (pg. 86), states that "This Code was rigidly ob- served till other laws were regu- larly enacted, and under it the peace of the settlement was nev- er once disturbed." § 70 Local Self-Govebnment Exists. 153 the lawful judgment of Ms peers or the law of the land," contains the principle of local self-government and is embodied in our federal and state constitutions, and this declaration is pronounced by Judge Dillon, as the "chief glory" of that charter.^*' Political students at home and abroad have been im- pressed favorably with our system of local self-govern- ment and have regarded it as forming the principle of the life of American liberty throughout our entire na- tional history.^i In truth, this system constitutes the strength of all free nations. These local organizations enable the people themselves to exercise governmental power in supiDlying local needs, conveniences and com- forts and in regulating the rights of the individual as a component part of the local society in his relations with his neighbors touching public matters. Civil divisions for the administration of local affairs are coeval with the central government. The state has never existed a moment without them. As aptly put in an early New York case: "All our thoughts and no- tions of civil government are inseparably associated with counties, cities and towns. They are permanent elements in the frame of government; they are institu- tions of the state, durable and indestructible by any power less than that which gave being to the organic law."»2 90. 1 Dillon, Mun. Corp. (5th "Wherever the Anglo Saxon Ed.) § 14. race have gone, wherever they 91. 1 Bryce's American Com- have carried their language and monwealth, chap. 48, "Local Self- laws, these communities, each Government;" also chaps. 50, 51 with a local administration of its and 52; History of Rhode Island own selection, have gone with System, 13 Harvard Law Rev. them. » • • They are the oppo- 570, 638; 14 Harvard Law Rev. sites of those systems which col- 20, 116; Opinion of Elliott, C. J., lect all power at a common cen- in State ex rel. v. Denny, 118 Ind. ter, to be wielded by a common 449, 24 Am. and Eng. Corp. Cas. will, and to effect a given pur- 223, 4 L. R. A. 65, 21 N. E. 274. pose, which absorb all political 92. All our thoughts are in- authority, exercise all its func- separably associated with home tions, distribute all its patronage, Qovernment, repress the public activity, stifle 154 Municipal Corporations. §70 The American people have always acted upon the deep seated conviction that local matters can better be regu- lated by the people of the locality than by the state or central authority. One controlling idea of local self- government is to bring the oflScials nearer to the people the public voice and crush out the public liberty." Per Mr. Jus- tice Brown, in People v. Draper, 15 N. Y. 561, 562. "This right of self-government lies at the foundation of our in- stitutions and cannot be dis- turbed or Interfered with, even in respect to the smallest of the divisions into which the state Is divided for governmental pur- poses, without weakening the en- tire foundation, and hence It Is a right not only to be carefully guarded by every department of the government, but every infrac- tion or invasion of it is to be promptly met and condemned, especially by the courts, when such acts become the subject of judicial Investigation." People v. Albertson, 55 N. Y. 50. "Under our system we can have no governments, general or spec- ial, that do not immediately rep- resent a popular constituency, and no property called governmental power can be lodged anywhere else. Our state constitution has provided for local municipalities, embracing counties, cities, vil- lages, townships and school dis- tricts, which it has been held mean such bodies of those names as were of a familiar nature and understood." Per Campbell, C. J., Metropolitan Police Board v. Wayne County, 68 Mich. 576, 579. The people can not be subjected to any delegated powers of gov- ernment not exercised by their own representatives. Atty. Gen. V. Detroit, 58 Mich. 213, 55 Am. Rep. 675, 24 N. W. 887. Local self-government is recog- nized. "The city of New Or- leans, founded by Bienville about 1718 has never ceased to exist as an agglomeration of human beings for social, com- mercial and industrial purposes. • * * It is the civitas or poUs of ancient times. * * * It will not do to say, that, in the begin- ning of the act, it is declared that the inhabitants of the Parish of Orleans were created a body cor- porate and established as a po- litical corporation by the name of the city of New Orleans, for the fact is, that the legislature did not and could not create the city of New Orleans which had exist- ed long before the act of 1882. To create is to bring to life, to animate, to vivify, that which never existed before. What the legislature did was to continue the city of New Orleans as a municipal corporation and to in- vest it with powers which it did not previously possess, or to im- pose on it obligations to which it had not been subjected. The charter is the machinery where- by the city is put in motion and operates." Prof. Bermudez, C. J., in State v. Natal, 39 La. Ann, 439, 441, 442. <§ 70 Local Self-Govebnment Exists. 155 whose interests are immediately affected by official con- duct, in deferfence to the fundamental maxim in the American system of government that the nearer the of- ficers are to the people over whom they have control, the more easily and readily are reached the evils that result from political corruption and the more speedy and cer- tain the cure.®* "In contradistinction to those governments where power is concentrated in one man, or in one or more bodies of men, whose supervision and active control ex- tends to all the objects of government within the terri- torial limits of the state, the American system is one of complete decentralisation, the primary and vital idea of which is, that local affairs shall be managed by local authorities, and general affairs only by the central authority." * * * "It is this that impels the several states, as if by com- mon arrangement, to subdivide their territory into coun- ties, road and school districts, and to confer powers of local legislation upon the people of each subdivision, and also to incorporate cities, boroughs, and villages whenever the circumstances and needs of a dense popu- lation seem to require other regulations than those whiph are needful for the rural districts. ' ' ** As mentioned and considered m another part of this work ®^ most of the recent state constitutions contemplate that all municipal corporations, especially cities and 93. Per Morse, J., In Atty. atuses under such a system, • • • Gen'I V. Detroit, 58 Mich. 213, 55 All are equally interested, and the Am. Rep. 675, 24 N. W. 887. constituents are near and have Officers should be near to the an Immediate supervision and in- people. "According to the sys- fluence over their representa- tem universally adopted and In tlves." Per Sharswood, J., In Du- use, the persons residing vyithin rach's Appeal, 62 Pa. St. 491, 493, the district subjected to the pow- 494; Markley v. Mineral City, 58 ers of the municipality, are their Ohio St. 430, 440. own governors; they choose by a 94. Cooley's Const. Llm. (6th majority of voices those who ad- Ed.) 261-3. minister Its affairs. There can 95. Ch. 4, Legislative Control be no great dsinger of permanent of Municipal Corporations, 156 Municipal CobporatIonSv § 70 towns, shall be self-governing. Accordingly these organic laws contain many provisions designed to prevent state assumption of local affairs or even interference with just municipal freedom. But apart from these restric- tions on legislative interference, from the historical examination of this subject, it becomes manifest that local self-government of the municipality does not spring from nor exist by virtue of written constitutions ; that it is not a mere privilege, conferred by the central authori- ty, but that the people in each municipality exercise their franchises under the protection of the fundamental principles just indicated, which were not questioned or doubted when the state constitutions were adopted, and which in the opinion of Judge Cooley and other eminent American jurists, no power in the state can legally dis- regard. Judge Cooley argues that such conclusion is inevitable when it is considered, first, that a system of local govern- ment thoroughly understood and reasonably uniform in character existed from the earliest settlement of the colonies, and never for a moment interrupted or aban- doned, and second, that the liberties of the people have always arisen from, and depended upon, that system, which system, it is fair to presume, was taken into ac- count and the principles of which were incorporated, by implication into the state constitutions.®^ 97. People v. Detroit, 28 Mich, be understood that all these In- 228, 15 Am. Rep. 202. See People struments are framed with its V. Lynch, 51 Cal. 15; Met. Pol. present existence and anticipated Board v. Wayne County, 68 Mich. continuance in view." Cooley, 576, 579. Const. Lim. (6th Ed.), p. 65. Constitutions recognize local Local self-government in the self-government. "Local self- American Municipal Corpora- government having always been tion. In sustaining a statute a part of the English and Ameri- authorizing the people of a coun- can systems, we shall look for ty or town to take stock in a rail- Its recognition in any such in- road and to raise the funds to strument. And even if not ex- pay for it by taxation or other- pressly recognized, it is still to wise, Ruffin, J., observed: "From §71 Value of Local Self-Goveknment. 157 § 71. The value of local self-government — views of emi-, nent men. The value of local self-government as it has developed in this country has called forth expressions of the highest praise from numerous distinguished men of this and other countries whose lives have been devoted to the study and practical experience in governmental affairs. Jefferson, in a letter to Governor Tyler, in advocating divisions of counties into hundreds, said: "These little Eepublics would be the main strength of the great one. We owe to them the vigor given to our revolution, in its commencement, in the eastern states. Could I once see. this, I would consider it as the dawn of the salvation of the Republic." He further declared: "These wards called 'townships' in New England are the vital prin- ciples of their governments, and have proven themselves the wisest inventions ever devised by the wit of man for time immemorial the counties, parishes, towns and territorial sub-divisions of the country have been allowed in England and, in- deed, required to lay rates on themselves for local purposes. It is most convenient, that the local establishments and police should be Sustained in that manner; and, indeed, to the Interest taken in them by the inhabitants of the particular districts and the in- formation upon the law and pub- lic matters generally thereby dif- fuse through the body of the peo- ple, has been attributed by pro- found thinkers much of that spirit of liberty and capacity for self-government, through repre- sentatives which has been so con- spicious In the mother country and so eminently distinguishes the people of America. From the foundation of our government, colonial and republican, the sums necessary for local purposes have been raised by the people or au- thorities at home. Court houses, prisons, bridges, poor houses and the like are thus built and kept up, and the expense of main- taining the poor and of prosecu- tions and jurors are thus de- frayed and of late a portion of the common school fund and a pro- vision for the indigent insane, are thus raised, while the highways are altogether constructed and re- paired by the local labor, dis- tributed under the orders of the county magistrate. "When, there- fore, the constitutiori vests the legislative power in the general assembly it must ie understood to mean that.poicer as it had Seen exercised by our forefathers be- fore and after their migration to this continent." Caldwell v. Jus- tices of Burke County, 4 Jonea Eq. (N. C.) 332, 324 (1858). 158 Municipal Corpobations. § 71 the perfect exercise of self-government, and for its preservation. " ** "The city corporations which have grown np m modern times are of infinite advantage to society; they bind men more closely together than does any other form of- political association. But that which most remark- ably distinguishes them from the close corporations which formerly existed, is the general spirit of freedom which has been breathed into them. More especially is this the case with town corporations in America,, which are as different from those of England, as the latter are from similar corporations in Scotland and Holland. ' ' ^* The distinguished M. De Tocqueville, in his "De- mocracy in America" says: "Local assemblies of citi- zens constitute the strength of free nations. Township meetings are to liberty what primary schools are to science; they bring it within the people's reach; they teach men how to use and how to enjoy it. A nation may establish a system of free governments but without the spirit of municipal institutions, it cannot have the spirit of liberty." He characterizes the New England towns as small independent republics in all matters of local concern, and as forming the principle of American liberty. "It is important to remember," he adds, that "they have not been invested with privileges but that they seem on the contrary, to have surrendered a por- tion of their independence to the state." He declares that they are only subordinate to the state in those in- terests which he terms social, as they are common to all the citizens, and asserts: "They are independent in all that concerns themselves, and among the inhabitants of New England I believe that not a man is found who would acknowledge that the state has any right to in- terfere in their local interests." This author speaks of our system of local self-govern- ment as the American system and contrasts it forcibly 98. Jefferson's Works. 99. Per Grimke, J., In Rose- baugh V. Saffin, 10 Ohio 31, 36. § 71 Value of Local Self-Goveenmen'T. 159 with the French idea of centralization, under the in- fluence of which, constitutional freedom has hitherto proved well nigh impossible.^ A modern English writer says : ' ' Experience, ancient and modern alike, has shown conclusively that a com- pletely centralized bureaucracy — that is, a self-recruit- ing body of officials working from a single centre, and responsible only to itself — cannot carry on indefinitely the administration of a large country; it tends to ignore the varieties of local conditions, to become stereotyped in its ideas and methods, and overburdened; and sooner or later a breakdown becomes inevitable. And where the people have been discouraged from taking an inter- est in the task of government, where they have not been habituated to the management of public affairs, the col- lapse, when the bureaucracy fail, is so much the greater, since there is nothing which can be substituted for the broken-down official organization. For these practical reasons, amongst others of a more theoretical and politi- cal character, in all progressive states, during the last century, attempts have been made at decentralization and the development of self-government in two ways; (1) by entrusting the inhabitants of localities, or their chosen representatives, with the conduct (under greater or less control) of those matters of public interest and utility which concern the localities chiefly or entirely; and (2) by providing for the participation of unofficial citizens in the management of some at least of those other matters of administration which are supposed to belong particularly to the sphere of the central govern- ment. The systems of local administration in vogue, and the constitution and working of the authorities estab- lished for these purposes, have naturally been influenced greatly by the constitutional ideas and the forms of government of the different states; they reflect these, as they do also the political habits and social conditions of the citizen. ' ' * 1. De Tocquevllle's Democ. In 2. Percy Ashley, Local and Am., ch. 5. Central Government, pp. 1-3. 160 Municipal, Coepoeations. §72 6. MUNICIPAL GOVBKNMENT OF MODEEN EUEOPBAN CITIES. § 72. General progress making. That large cities have much in common and are be- coming much alike the world over is keenly recognized. The needs of vast urban populations are everywhere the Value of local self-govern- ment. Municipal government In the states of the American Union secure "to the people in all of them the largest influence and full- est control consistent with safe and suitable government." The ob- ject of a charter is "to provide the Inhabitants" of a place "not only a local but a representative gov- ernment; a government intended to rest in a large measure upon the consent of the governed; and in 'the administration of which, therefore, a controlling influence Is secured to the qualified voters of the city. To that end frequent opportunities for the expression of popular sentiment and the election of officers are afforded and the means provided for prop- erly carrying into effect the will of the people when it has been formally expressed at the ballot boxes." Kirkham v. Russell, 76 Va. 956, 966, 967, per Lewis, J. Mr. Gladstone, in commenting on the English system of corpo- rate local government and admin- istration, concludes: "Our munic- ipal cities produce qualities which are the best safe-guards of Eng- lish greatness." Chief Justice Elliott of Indiana in a judicial opinion said: "As Cato,, then, concluded every speech with the words, 'Carthago delenda est,' so do I every opinion, 'Di- vide the country Into wards.' These words of wisdom influenced our people and the framers of our organic law, and they should so Influence our courts that they may not depart from the funda- mental principle of local self-gov- ernment. The right of local self- government is, indeed, one of the strongest and most efficient checks in our system of checks and balances which John Adams and the other great statesmen of his time so earnestly labored to perfect and establish." State ex rel. V. Denny, 118 Ind. 382, 402, 24 Am. & Bng. Corp. Cases 164, 4 L. R. A. 79, 21 N. E5. 274. "The human race Is gradually learning the simple lesson, that the people as a whole are wiser for the public good and the pub- lic prosperity, than any class of men, however refined and cul- tivated, have ever been, or, by any possibility, car ever become. Governments over societies the most advanced are still in a tran- sitional stage; and they are neces- sarily and logically moving » * • In the direction of democracy; that form of self-government which represents and expresses the average Intelligence and vir- tue of a free and educated peo- ple." Morgan, Ancient Society, part 2, ch. 13, p. 335. § 72 MODEEN EUKOPBAN CiTIES. 161 same.^ In all parts of the civilized world, particularly in Great Britain, Continental Europe and in this coun- try, municipal activities are expanded from time to time in response to the necessities, conveniences, comforts, artistic tastes, altruistic attributes and civic aspirations of those congregated in crowded centers and which are incident to congested urban conditions. Most of the European cities have undergone a rapid transformation during the past three or four decades. The grimy and unsightly cities and towns of the middle ages no longer greet the visitor. Most of them have effaced utterly the mediaeval filthiness, narrow streets, characteristic of the cities of the Orient, the unsightliness, the unhealthiness and bad sanitary conditions, of the crowded centers of the past. Everywhere there is a strong, persistent and enlight- ened demand on the part of urban populations for broader streets, well paved and kept clean and orderly; efficient drainage, adequate water supply, sanitation and lighting, sufficient fire and police protection, rapid and safe transportation facilities, better dwellings and business houses, more commodious and imposing public buildings, good drive-ways, attractive parks and places of outdoor recreation and play grounds for children, public baths, the best educational advantages, institu- tions of charities and correction, aild, indeed, every im- provement which tends to make their cities and towns and homes more comfortable, attractive and beautiful. In all these respects it is observable that, not only the modern European cities mentioned in the sections which follow, but those of Holland, as Amsterdam, Eotterdam, The Hague and Utrecht; those of Spain, particularly Madrid and Barcelona; those of Italy, as Eome, Naples, Milan, Florence, Turin, Genoa; and some of those of Greece, especially Athens, are endeavoring to keep abreast with the enlightened modern desire for better- 3. Ashley, Local and Central Gov., § 4, p. 47. 1 McQ.— 11 162 MuNIOIPAIi COEPOEATIONS. §73 ment and progress. Even beyond Continental Europe, as in Constantinople, Alexandria, Cairo, Jerusalem and Damascus transformation is rapidly advancing.* § 73. Government of modem Prussian cities — Berlin, Hamburg. The cities of the German Empire have grown more rapidly in population during the last three decades than those of England, Scotland, France or our own country. In Germany, as in other states of Continental Europe, the modern cities and towns have been created largely out of the towns and urban communities which originat- ed in the middle ages.^ Like municipal government in this coimtry, there is lack of uniformity in the government of German urban centers. Unlike municipal government in England and 4. Shaw, Mun. Government In Great Britain, Ch. 1; Shaw, Mun. Government in Continental Eur- ope, Chaps. 3, 4; Dr. Falrlie, Es- says on Municipal Administra- tion, ch. 18, p. 330 et seq., "Mu- nicipal Government in Italy." 5. Transformation of Ger- man c.ities. "Not only have the cities of the German Em- pire been growing more rapidly during the last ten or twenty years than the cities of the United States, but they have found the problems resulting from rapid growth much more bewildering. In America urban development has not, as a rule, involved any rebuilding of the older parts of the city; but in Germany the mu- nicipal authorities have usually found it necessary to create a modern city out of a grimy medi- aeval town. They have had to transform the narrow streets and byways of the old town. Into the main highways of large cities,— an expensive sort of reconstruc- tion too well known to require emphasis. To the proper solution of their greater problems, more- over, the German cities have been able to bring much more slender resources In the way of annual revenues and general borrowing powers. The only important ad- vantage which they have had over American cities has lain in the comparative homogeneity of their populations; for unlike the mu- nicipal authorities of the United States, the German city govern- ments have to deal with munici- pal electorates that are almost wholly drawn from the ranks of the native born." Munro, The Government of European Cities, Ch. 2, p. 112, — ^A most excellent work, carefully prepared and con- taining interesting and valuable information. § 73 Modern Prussian Cities. 163 Wales, and in France, each political division in Prussia has its own municipal code, and, hence, prescribes its own municipal rule, in conformity with the general law. However, the city constitutes a public or municipal cor- poration, i. e., is a body politic and corporate, with the usual governmental powers appertaining to such public organs. But, it should be observed that a general grant of power is made to such corporations, without exact specification, contrary to the usual rule in this country; therefore, broadly stated, in Prussia a municipal corpo- ration, as tersely expressed by Professor Munro, "may do anything which it is not prohibited from doing either by law or by veto of the higher power. " * In the Ger- man conception of city government, says Dr. Albert Shaw, "there are no limits whatever to municipal func- tions. It is the business of the municipality to promote in every feasible way its own welfare, and the welfare of its citizens."'' It is thus manifest, as pointed out often by writers, that there is a sharp difference between Germany and this country concerning the theory of the scope of munic- ipal powers. When a broad grant of power is conferred upon the municipal corporation it is thus relieved of the necessity of making constant application to the central or state legislature for specific authority to do necessary or desirable things, conceived to be within the scope of municipal activities. The method of granting municipal powers in this country and the usual judicial construc- tion of municipal charters oftentimes force the local au- thorities to appeal to the state legislature for power to enable them to conduct efficiently the local government.* 6. Munro, The Government of ers, — a difference In favor of the European Cities, ch. 2, p. 120. Prussian cities, for the plan of 7. Shaw, Municipal Govern- making broad grants of authority ment in Continental Europe, ch. removes from them the necessity 6, p. 323. for that too frequent application 8. "There Is thus an Important to the state legislatures, which difference between the two coun- American cities find themselves tries In what may be termed the compelled to make." theory of civic (municipal) pow- 16i Municipal Corpoeations. § 73 This subject is considered elsewhere.®^ The Prussian city is governed by a municipal council and an administrative board. In the several cities the number of members of the council varies, ranging from twelve in the smallest cities to one hundred and forty- four, as in Berlin. The term of office is six years, and one-third of the members are elected every two years. The administrative board is composed of a burgomas- ter (two in the larger cities) and a number of members, varying in the several cities, but iisually about one-third or one-fourth of that of the council. This board consists of paid and unpaid members who are chosen by the council. Those of the first-class have either a life tenure, as in a few cities, or a term of twelve years, and those of the second, a term of six years, one-half being named every three years. The administrative board is the actual executive power of the city, and, in the main, controls the munici- pal activities. While the burgomaster is its presiding officer and nominally its head, he possesses no veto power over legislation of the municipal council, no power to ap- point officers and subordinates, and no power affect- ing niunicipal policy by virtue of his office beyond that of his associates.® In 1895, the distinguished American, Dr. Albert Shaw, wrote that, the German cities are providing themselves with modern conveniences and improvements in a more systematic, thorough and business-like way than any other cities, whether in Europe, America, or Australia; and that "municipal housekeeping," as a science and "It, Is, of course, true that spe- Government of European Cities, clflc jurisdiction of a mandatory ch. 11, p. 120. sort Is sometimes conferred upon 8a. Ch. 4, Legislative Control of the cities by the national author- Municipal Corporations. Ities, — as, for example, in the mat- 9. Ashley, Local and Central ter of education or the protection Government, ch. 3, § 6, pp. 153 of the public health; but the num- to 163; James, Municipal Admin- ber of powers conferred in this istration in Germany, p. 14. way Is not large." Munro, The .§73 Modern Pbussian Cities. 165 an art, can for various reasons be observed to better advantage in Germany than in any other country.^" The scope of municipal functions of the German city, as enumerated by the same forceful writer, is given in the note." Berlin, which, in general, possesses the same munic- ipal administration as other Prussian cities, on the whole, is reputed to be the best regulated and best governed city in the world. During the past thirty-five years it 10. Shaw, Mun. Gov. in Con- tinental Europe, ch. 5, p. 289. 11. Scope of municipal func- tions In the German city. "The German city holds Itself re- sponsible for the education of all; for the provision of amuse- ment and the means of recre- ation; for the adaptation of the training of the young to the neces- sities of gaining a livelihood; for the health of families; for the moral interests of all; for the Civilizing of the people; for the promotion of individual thrift; for protection from various mis- fortunes; for the development of advantages and opportunities in order to promote the industrial and commercial well-being, and Incidentally for the supply of com- mon services and the introduction of conveniences. "Broadly but not sharply dis- tinguished, the German cities rec- ognize two kinds of functions: those that can be made largely self-supporting or even product- ive of net revenue, and those that cannot possibly be so considered. The latter are the more import- ant; and in this class the three most important are the education of the children, the protection of the public health, and the care of the poor and unfortunate. To ac- complish these and other kindred ends, municipal life Jn Germany has been reduced to a science. German population-masses are more cohesive than Anglo-Saxon masses, and the individual is more dependent upon his neigh- bors and upon the community to which he belongs. The voluntary principle would not work so well in Germany as in England or America. But we must remember that the municipal intervention in Germany is not merely mechani- cal. Principles exist which give heart and soul to the system. The voluntary agencies have been ab- sorbed in the municipal, or affili- ated with them, without crushing out the sense of human brother- hood and mutual responsibility upon which, after all, must rest the well-being of any commun- ity." Shaw, Mun. Gov. in Con- tinental Europe, ch. 6, pp. 329- 330. For description of local govern- ment in Prussian cities and its several activities,' see Ashley, Local and Central Government, ch. 3. For a full and careful descrip- tion of Municipal Administration in the Prussian cities, see Munro, The Government of European Cities, ch. II 166 Municipal Cobpokations. § 73 has been practically renovated and re-oreated as a mod- ern city. In point of population it stands as the seventh city of the world (2,064,133—1910), and the fourth in Europe, being surpassed in this respect by London, Paris and Vienna. It is the most populous city of the German Empire. In municipal progress, it ranks as one of the finest and most important cities of Europe.'* Berlin is noted for a great number of imposing mod- ern public buildings and numerous magnificent public monuments. Many of its streets are particularly at- tractive. They are exceptionally clean and well paved. TJnter den Linden, skirted on either side with rows of linden trees, is the most celebrated street in Europe. The municipal bridges, driveways, parks and places of recreation are excellent, the water supply is unsur- passed, and the extensive and splendid sewerage system marks a decided epoch in the science of engineering. The efficient school system is much admired, and the poor-relief organization is well administered. In 1881 Berlin was divided off from the province of Brandenburg and has ever since been a separate admin- istrative district. Its government is partly semi-mili- tary (police) and partly municipal. The ministry of police is a branch of the home office under the control of the minister of the interior, and consists of six deytart- ments: (1) general, (2) trade, (3) building, (4) crimi- nal, (5) passports, (6) markets. It controls the fire brigade, has the general inspection over all strangers, and is responsible for public order. The civil authority (magistrat) consists of a chief maj^or {oherhurgerw.eister), a mayor {hur germeister) and a city council (stadtrath). The chief mayor and the mayor are elected by the common council. The chief mayor is ex officio a member of the Prussian Upper House. The common council is composed of 144 mem- bers, three elected from each ward of the city for a term of six years, one-third of whom are elected every two 12. Munro, "The Government of European Cities, "ch. 2, p. 208. § 73 Modern Prussian Cities. 167 years. The city council has thirty-two members, of whom fifteen are paid officials (including two syndicsj. two councillors for building, and two for education), while seventeen serve gratuitously. Politically the city is divided into six Reichstag and four Landtag constituencies, returning six and nine members respectively.^^ Hamburg (originally Hammaburg) has made real progress in improving the health conditions of this great seaport city, and presents, perhaps, the best example of what may be accomplished in this respect by determined and persistent efforts intelligently directed. This old Free and Hansa town has also developed other municipal functions which will serve as splendid examples to other cities seeking information. Hamburg arose from a frontier block-house, or castle, on the Slavonic borders of Germany and was established by Charles the Great in 808.^* The oldest waterworks of Hamburg were constructed in 1531, its first modern system with steam power was opened in 1822, and today it has a complete and exten- sive system of waterworks. Hamburg did not have proper drainage facilities until after the fire of 1842, but, since then it has constructed^ an elaborate and extensive system of sewers, the mouths of which are equipped with automatic doors to prevent the flooding of the lower district by back water from the river. The total length of its sewers is more than 500,000 feet." 13. Shaw, Mun. Government In lie, Essays In Municipal Admln- Continental Europe, ch. 5-6; The Istration, p. 203, et seq. United States of America, Shaler, 14. 12 Bncyc. Brltannlca (11th Vol. 1, p. 217; Municipal Govern- Ed.), 874. ment of Berlin, 1889, by Sylvester 15. 11 Encyc. Britannlca (9th Baxter, Bulletin of Essex Instl- Ed.), 407. tute, (Massachusetts); 3 Encyc. The free city of Hamburg and Britannlca, (11th Ed.), p. 788; its sanitary reforms are present- New International Encyc, tit. ed admirably by Dr. Albert Shaw, "Berlin." Mun, Gov. in Continental Europe, Local Transportation, Dr. Fair- ch. 7, p. 378 et seq. 168 Municipal Corpoeations. § 74 § 74. Vienna. An intelligent American observer has written that Vienna "may well contest with Paris the claim of pre- eminence for beauty and splendor."^* In population, Vienna ranks as the sixth city in the world (2,085,888—1909), a trifle larger than Berlin, and the third in Europe, standing n^t to London and Paris. In municipal progress, like Berlin, it stands among the first cities of the Old World, "especially is this true of the last decade, during which it is not too much to say that its municipal history has been of greater signifi- cance than that of any other city of Europe." ^^ "Vienna would seem," as expressed by Dr. Shaw, "on many ac- counts to be the world's most notable example of a splen- didly appointed metropolis rapidly evolved through the adoption of modern ideas and principles."** Vienna's modern municipal government may be dated from 1860, although ten years prior Austria's capital re- ceived a municipal constitution which not only restored its municipal liberties, but re-created a local government ^with powers sufficiently broad to constitute, in spirit and truth, a self-governing cominunity. The impetus thus given brought to the task of constructing a well appoint- ed and splendid modern city, with an eificient local admin- istration, the leaders among its citizens in the profes- sions, and in the commercial and industrial activities. That the ordinary functions of municipal government may be brought to the people, Vienna is divided into twenty-one districts, and each district has an elective ad- ministrative board of eighteen members who hold office for a term of six years. These boards correspond, in many respects, to the arrondissements of Paris, mentioned elsewhere. These districts are permanent and can be changed only by act of the Austrian parliament. Each 16. Shaw, Municipal Govern- 17. Falrlie, Essays on Munlcl- ment of Continental Europe, pal Administration, p. 316. ch. 9, p. 436. 18. Shaw, Mun. Gov. In Con- tinental Europe, ch. 8, p. 410. § 75 Vienna : Budapest. 169 district contains a public building for tbe use of munici- pal officers and employes. One hundred and sixty-five unpaid members consti- tute the Vienna council. They hold office for six years, and one-third of the body retires every two years. The council directs the general municipal affairs and controls the municipal policy and the city's finances. A chief of- ficer, known as the burgomaster, elected by the council from its membership for a term of six years, presides over the council's deliberations. For a term of three years a first and second burgomaster are chosen also. These two officers and the burgomaster with some twenty odd members, designated by the council from among its members, constitute a municipal board called a stadtrdh, which names the municipal administrative officers and employes, whose officers and places are cre- ated by the council, and carries out the details of the municipal government.^® § 75. Budapest. Hungary's capital and metropolis has made rapid strides in municipal advancement during late years. It has a population of some 800,000. The present city orig- inally formed two separate and distinct local jurisdic- tions, Buda on the right bank of the Danube, and Pest on the left. The improvements in local administration, since the promulgation of the new Hungarian constitu- tion in 1868, have been important and have proceeded without abatement. An intense spirit of civic pride pos- sesses the citizens. The educated and enlightened in- habitants dominate the governmental affairs of the capital. The building activity since 1867 has been extra- ordinary, and Budapest has undergone a thorough trans- formation. The removal of slum districts and the regu- lation of the older parts of the city in connection with the construction of the tvo new bridges across the Dan- 19. Shaw, Mun. Gov. in C \- F'^'-ays on Municipal Admlnlstra- tlnental Europe, ch. 8; Fairlie, tlon, p. 316 et seq. 170 Municipal Corporations. § 75 ube, and of the railway termini, went hand in hand with the exteiision of the city. New quarters sprang up rapidly on both banks of the Danube. This process is still going on, and Budapest has become one of the hand- somest capitals in Europe. Budapest is composed of ten municipal districts, three on the Buda side of the river and seven on the Pest side. The municipal council consists of four hundred mem- bers, elected by a restricted suffrage (taxpayers and men of superior education) for a term of six years. An executive board of eight members is chosen by the coun- cil for the same term. This board, with a chief executive styled oberbur germeister, appointed by the king, a burg- ermeister and two vice-burg ermeisters admiuister the affairs of the city. The high efficiency of the local government is amply shown in the improved sanitary conditions, the estab- lishing of a large filtering plant for the clarification and purification of the water, the extension and betterment of the sewer system and the rendering sanitary and healthy the abodes of the poorer classes.^" 20. New International Ency. caped; but It would be hard to tit. "Budapest;" 4 Encyclopedia find another large town whose Britannica (11th Ed.), p. 735; development has been kept so well Fairlle, Essays on Municipal Ad- in hand by the authorities, ministration, pp. 312-315. and has been so symmetrical and "Budapest Is not merely scientific from the point of view four or five times as populous as of approved city-making. In it was in the middle of the cur- >many particulars of appointment, rent (19th) century, but it has as well as in general plan and blossomed out of primitive and tout ensernble, American cities forlorn conditions into the , full might learn not a little from magnificence of a splendidly ap- Budapest." Dr. Shaw also says po'nted modern metropolis. Rap- that it is now certain that "Buda- Idly deiveloping cities usually pest Is to take and hold its place have the misfortune to grow among the great cities of the civ- wrongly, through lack of fore- ilized world." Shaw, Mun. Gov. sight and wise regulations on the in Continental Europe, ch. 9, pp, part of the governing authorities. 436, 468. Budapest has not wholly es- § 76 TgE Scandinavian Capitals. 171 § 76. Copenhagen, Stockholm and Christiania. The Scandinavian capitals show substantial progress in municipal development, notwithstanding the fact that the life of the Scandinavian peoples is mainly rural. In sanitation, public improvements, education and general betterment in urban conditions, Copenhagen, Stockholm and Christiania demonstrate marked advancement.^' Copenhagen, the capital of Denmark, originally sim- ply Havn, can be traced back to 1043. It was then only a fishing village. On the death of King Eric IV, in 1250, Bishop Jacob Erlandsen took possession of the town and, in 1254, gave the burghers their first municipal privi- leges, which were confirmed by Pope Urban III, in 1286. "The distinctive character of the charter of Copenhagen during the middle ages consisted in the absence of the fee. gild system and the right of any burgher to pursue a craft under license from the Vogt (advocatus) of the overlord and the city authorities." Copenhagen did not become the capital of Denmark until 1443.^^ Stockholm, the capital of Sweden, is the first import town in Sweden, but in exports it is surpassed by both Gothenburg and Malmo. In 1899 Stockholm owned a mercantile navy of 205 vessels of 70,870 tons. During the last thirty-five years the city has grown rapidly and its population up to 1902 had increased faster than the city had expanded.** Christiania, the capital of Norway, forms a separate county. Prior to the second half of the 19th century the city was built mainly of wood, but since then brick and stone have largely superseded wood as the building ma- terial. The city today is essentially modern. Its suburbs are attractive and are connected with the city by electric tramways.** 21. Shaw, Mun. Gov. In Contl- 23. 32 Encyc. Britannlca (10th nental Europe, preface pp. VII Ed.), p. 863. and IX. 24. 6 Encyc. Britannica (11th 22. 7 Encyc. Britannica (11th Ed.), 279. Ed.), p. 98. 172 Municipal Coepoeations. § 77 § 77. Modem municipal government in France. For many years prior to the revolution, local govern- ment in France existed in a feeble way; communal administration showed marked variation. Local' autono- my with few exceptions was conspicuously lacking. In- terference at will by a superior authority in affairs of purely local concern might be exercised at any time. In 1789 the Constituent Assembly promulgated a law designed to establish a uniform government for each local unit known as a commune, with power to control its own purely local affairs, free from outside interfer- ence. Subsequently, the control to a great extent by the central government of the local officers was expressly au- thorized by law. Then the canton supplanted the com- mune as the basal unit of local government. The canton comprised each urban community of considerabe size. The entire administration of local communities was changed. With the advent of Napoleon Bonaparte as the chief executive of the government of France in 1800, further changes in local governmental areas were wrought and central control over local affairs was materially strength- ened. The commune again was made the unit of local administration. The cantons were retained but became thereafter merely judicial districts. Local administra- tion of the commune was intrusted to a mayor, and one or more adjoints, associated with a municipal council, varying from ten to thirty members, according to the local population. The officers were appointed directly or indirectly by the central government. Thus the elect- ive principle in local government was utterly destroyed. In other ways the centralization was made complete and effective. Under the Bourbon regime no important changes in local government were mado. Centralization of all local administration still remained as a cardinal part of the system. With the success of the Orl^anists in 1830 a law was passed in the following year authorizing the election of members of the municipal council by certain citizens of § 77 Municipal Goveenment in France. 173 the commune. Changes were made from time to time in local administration relating to the manner and extent of central control until in 1883, when a commission was created to revise and collaborate the various enactments touching local government into a comprehensive munic- ipal code. This resulted in the promulgation of a munic- ipal code in 1884, which "is distinguished by its comparative brevity, its comprehensiveness and its sim- plicity," and although often since amended, it is the basis of all village, town and city government in France, excepting Paris.^^ Under this code the commune is the unit of municipal government. The term commune, as employed in the French system, is comprehensive, embracing local com- munities carying in population from a few dozen to m.ore than 200,000 or 300,000 inhabitants, as in cities like Lyons, Marseilles and Bordeaux. In France there are over 36,000 communes, and of these more than one-half have populations not exceeding 500, 250 of these local areas contain more than 10,000 in- habitants each, and the populations of 14 of them exceed 100,000 each. In France the rural population predominates. Not more than one-fourth resided in urban centers with pop- ulations exceeding 10,000. As noted elsewhere this per- centage is considerably less than that of Germany, Eng- land and our own country.^* The commune possesses corporate capacity, can buy and sell property, make contracts, sue and be sued. The government consists of a maire (mayor) with one or more deputies, (adjoints) and acouncil municipal, (mu- nicipal council). The maire acts as the agent of the gen- eral government in the local enforcement of the laws, and also as the head of the local corporation. The members of the municipal council, known as coun- cillors are elected by direct manhood suffrage. Their 25. Munro, The Government of T.:iich, by permission, the sub- European Cities, ch. 1, p. 12, stance of the text is talcen. (The Macmillan Co. N. Y.), from 26. Munro, The Government of European Cities, ch. 1, p. 13. 174 MuNICIPAl, CoKPOKATiONS. § 78 ' \ ■ term is four years. They select the maire and his ad- joints or deputies, from among their own numher.*'' § 78. Paris. Paris is the pioneer of the completely modernized cities of continental Europe. "French public authorities, architects, and civil engineers,"' says Dr. Albert Shaw, "were the first to conceive effectually the ideas of sym- metry and spaciousness, of order and convenience, of wholesomeness and cleanliness, in urban arrangements. * * * In this brilliant nineteenth-century task of re- constructing cities in their physical characters, dealiug with them as organic entities, and endeavoring to give such form to the visible body as should best accommo- date the expanding life within, Paris has been the un- rivaled leader."** From the standpoint of population, Paris ranks as the third city in the world (2,763,393—1906). It is the second in Europe and the first on the Continent. The governmental and administrative features of Paris are much complicated by the traditions of its long history, thus rendering it difficult to give even a general resume of its principal features. For the purpose of local administration the capital is divided into twenty arrondissements. In each is a cen tral municipal building known as the mairie, and in each there is a chief officer designated the maire (mayor) as- sisted by three adjutants or five for any arrondissement with more than 120,000 inhabitants. These officers are appointed by the central government, and are, in fact, mere agents or representatives of the prefect of the De- partment of the Seine. They attend to such municipal affairs as relate to their respective localities. These ar- 27. For further details con- Local and Central Government, .cerning the French municipal sys- ch. 2, § 4, pp. 93 to 104. tem. see the valuable work of 28. Shaw, Municipal Govem- Albert Shaw, Municipal Govern- ment in Continental Europe, ch. ment in Continental Europe, ch. 1. pp. 2, 3. 11, p. 146 et seq. and Ashley, § 78 Paeis. 175 rondissements constitute the local administrative units. They are permanent divisions and not subject to change. Each arrondissement is subdivided into four parts or quarters, and each quarter elects an officer called a coun- cillor to serve for three years. These councillors — eighty in number — constitute the municipal council of Paris. This council, and twenty-one representatives of the out- lying communes of the Department of the Seine form the council-general of the department. There is also a chief officer known as the prefect of police, appointed by the central government, who has charge of the police force and of all matters appertaining to the administra- tion of the police powers of the nation within his ter- ritory. The real governing power of Paris is the civil service organization, which is composed of thoroughly trained and experienced experts in all local governmental mat- ters. The work is classified and directed by departments. These departments, in effect, control all details of the municipal government, and administration of local af- fairs.2» In concluding his critical and elaborate examination of the municipal government and marvelous achieve- ments of Paris, which he characterizes, as "the typical modem city," Albert Shaw justly remarks: "The ex- perience of Paris, candidly studied, ought to convince the most skeptical that there is no modern community of civilized men which cannot afford to provide, for its areas of dense population, the most perfect public ap- 29. Shaw, Municipal Govern- to the administration system of ment in Continental Europe, Ch. the state as to mal^e it of little 1; Ashley, Local and Central Gov- value here. The details of its ernment, ch. 2, § 5, pp. 104-109. public work are, however, man- "Its municipal council of eighty aged with great skill and wisdom, members," says an American producing, though at high cost, writer, "has many defective fea^ the most perfect results." The tures, and offers little that is in- United States of America, structive. Its administration is (Shaler), Vol. II, p. 227. BO allied in some of its elements 176 Municipal Coepoeations. § 79 pointments that teclmical and scientific knowledge have discovered and prescribed. Well made and clean streets, good water, proper drainage, convenient transit facili- ties, complete schools, thorough sanitary organization, — these at least should be considered the irreducible mini- mum; No city should think itself rich enough to prosper without them, and no city is so poor that it cannot af- ford them if it has any reason whatever for continued existence. But further than this indispensable minimum any city might hopefully bend its energies toward the acquisition of the finest flowers and fruits of culture and art. Paris has exemplified these propositions with an unfaltering faith in science, in art, and in civilization that deserves our homage."*" § 79. Cities of Belgium. The modem municipal institutions of Belgium had theii* origin in the communes, a movement, as mentioned elsewhere, which began in the 11th century and which rapidly spread to many nations of Continental Europe; however, in France it attained its best development. And it should be observed also that students of municipal problems of European cities agree, as expressed by Dr. Albert Shaw, that French influence has been dominant in the modern revision of the administrative framework of Belgium, Holland, Spain, French-speaking Switzerland and Italy.*^ For local governmental purposes Belgium is divided into provinces and communes. Each commune possesses a corporate character and maintains its own municipal government administered by an elective council, a bur- gomaster or mayor, appointed for an indefinite term by the central authority, and echevins (corresponding to the French adjuncts), executive officers and assistants of the 30. Shaw, Municipal Govern- 31. Shaw, Municipal Govern- ment in Continental Europe, ch. ment in Continental Europe, oh. 1, p. 145. 3. p. 210. § 79 Cities op Belgium. 177 mayor, chosen from the members of the council for six years.^'^ The principal towns of Belgium, as is well known, are Brussels, Antwerp, Ghent, Liege and Bruges. Brussels. The history of the city of Brussels, the cap- ital of Belgium, can be traced back to the 6th or 7th century. At that time a chapel was built around which a hamlet soon sprang up. The hamlet speedily devel- oped into a town which, in the 11th century, was walled and fortified, when it was chosen by the Duke of Lower Burgundy as his capital. In the 14th century, the va- rious trades, which had grown to considerable impor- tance, were incorporated into guilds, who regulated the taxes and other financial matters of the city and drew up a code of municipal laws under which trial by jury was introduced into the town. Since the 15th century Brussels has been celebrated as a seat of learning, art and science. The modern city is surrounded by a cir- cle of important industrial suburbs, "separated from it by a girdle of exceptionally wide boulevards." It con- tains many magnificent public and private buildings, and fine parks.^^ Antwerp, the capital of the province of the same name, has a municipal council of thirty-nine members, includ- ing eight members from the labor council, elected by cit- izens having the right of suffrage, for a period of eight years. The local administration is in the hands of the council, a burgomaster nominated by the king of Belgium for a period of eight years, and five assessors. For administrative purposes the city is divided into nine districts, and the affairs of each district are directed by commissioners. Private companies supply the water. Gas is the prevailing light; however, the harbor and railway stations are lighted with electricity.^* , 32. Shaw, Municipal Govern- 349; Shaw, Mun. Gov. in Contln- ment in Continental Europe, ch. 3. ental Europe, ch. 3. 3. 34. Shaw, Mun. Gov. In Con- 33. 14 Bncyc. Brltannica (9th tlnental Europe, ch. 3, p. 228, et Ed.), 406; 2 Nelson's Bncyc, p. seq.; 1 New International Bncyc, p. 641; 1 Nelson's Encyc, p. 284. 1 McQ.— 12 178 Municipal CoBPOEATiONS. §80 § 80. Cities of Switzerland. Rural life predominates in Switzerland. There the unit of government is the canton. Each canton has its own system of communal organization, but, in all alike, the general town council is the controlling organ in mu- nicipal administration. "The French-speaking can- tons," observes Albert Shaw, "incline more strongly towards the methods that prevail in the provincial dis- tricts of France, while the towns of the German-speaking cantons — though not organized upon the Prussian model — show more of the German spirit and scope of action."*^ Bern is the capital of the Swiss canton of the same name, and since 1848 has been the political capital of the Swiss confederation. There is comparatively little industrial activity in the town, its importance being chiefly political. "In point of population it is exceeded in Switzerland by Zurich, Basel and Geneva, though the number of inhabitants has risen from 27,558 in 1850 and 43,197 in 1880 to 64,227 in 1900. "^« Basel, the capital of the Swiss half canton of Basel Stadt, ranks second in point of population among the cities of Switzerland. It is the richest city in the Swiss confederation, having more resident millionaires than any other Swiss town. The Rhine divides the city into Gross Basel (south) and Klein Basel (north), the for- mer being by far the larger.*'' Geneva, until 1815, was under the same form of gov- ernment as the Geneva canton, but in 1842 obtained mu- nicipal independence and is now governed by a town council of forty-one members and an executive of five members, all of whom are elected by the citizens for a term of four years. "It possesses many edifices, public 35. Staw, Mun. Gov. In Con- Kd.), 795; 2 Nelson's Encyc, p. tlnental Europe, preface, p. IX. 53. 36. 3 Encyc Brltannica (11th 37. 3 Encyc. Britannica (llth Ed.), 462. -§ 81 Municipal Peoblems in England. 179 and private, which are handsome and elegant, but it has almost nothing to which the mind reverts as a master- piece of architectural art."** §81. Modem municipal problems in England — Birm- inghEim — Liverpool — Manchester. The Municipal Corporation Eeform Act, considered elsewhere in this work,^^ brought about a change chiefly in the civic spirit, in that the prevailing municipal oli- garchy was supplanted by the rule of the people. But in structure and in functions the municipal corporations are, in substance, the same as they were prior to 1835. The corruption which existed in municipal administra- tion was about as bad as it could well be; now municipal administration is honest, efficient and remarkably pro- gressive, as much so as in any country in the world. The betterment of municipal affairs does not depend so much on the form of local government as it does on the awaken- ing of the proper civic spirit. This is abundantly shown in the experience of England. The phenomenon of urban concentration has been more marked in England than in any other European state. England has been characterized as "the classic land of urban concentration. " *" In 1800 the urban pop- ulation was about one-fourth pf the whole, and by the middle of the nineteenth century it was about one-half, and at the opening of the twentieth century it is about three-fourths. It is thus manifest that the problems of municipal government in that country are, in the main, the problems of the whole English people.*^ 38. 11 Encyc. Brltannlca (11th Growth of urban population In Ed.), 5S7; 5 Nelson's Encyc, p. England. "The population living 348. in the metropolis, in the boroughs 39. Sees. 44, 45, 46 supra. end In the urban districts of Bng- 40. Munro, The Government of land and Wales, Is more than four European Cities, ch. 3, p. 210. times as great as that which 41. Municipal Activities in dwells under a strictly rural form Great • Britain, Dr. Fairlle, Essays of government, and the proportion on Mun. Administration, p. 287 et tends constantly to Increase. In seq. short, England is becoming more 180 Municipal Coepoeations. ' § 81 Some three hundred and two municipal corporations exist in England and Wales. Municipalities in modern England vary greatly in population, e. g. (aside from London, which has a population of 7,429,740—1909), from Liverpool with 723,000 inhabitants (1901), to Hedon with only 1„020. There are thirty-one with pop- ulations of more than 100,000, and 109 with populations of less than 10,000, and sixty-six of these have less than 5,000 each." Birmingham is one of the oldest towns in England, and was in existence as a community in the Saxon pe- riod, but owing to its rapid expansion and the consequent newness of most of the public and other buildings Birm- ingham is often supposed, to be a modern town.*^ The council consists of fifty-four councillors and eigh- teen aldermen. Three councillors are elected from each of the eighteen wards of the city, for a term of three years, one councillor from ea,ch ward retiring each year. The councillors choose the aldermen for a term of six years. The council selects the mayor whose term is one year. He is the presiding officer of the council, and is ex officio, a member of all council committees. Birmingham is adequately provided with schools, the oldest and principal of which is the Grammar School of King Edward the VI, founded in 1552.** The charitable institutions of Birmingham medical and non-medical are very numerous. "Nearly all the medical charities depend upon subscriptions, donations, legacies, and income from invested property," and the sum raised in this way is probably thirty million pounds a year.*** and more a collection of cities, and this has already wrought a marked change in the character and political temperament of her people." Lowell, The Government of England, Vol. 2, ch. 38, p. 143. 42. Ashley, Local and Central Gov., ch. 1. § 3, p. 36. 43. 3 Encyc. Britannlca (9th Ed.), p. 785. 44. 3 Encyc. Britannica (11th Ed.), 985. 45. 3 Encyc. Britannica (11th Ed.), p. 987. Birmingham, its civic life and expansion, is considered by Dr. § 81 Municipal Problems in England. 181 Liverpool, the great emporium for American trade, obtained its charter of incorporation early in the thir- teenth century. Not until after the Restoration did its great commercial prosperity develop. Liverpool is distinct because of the fact that the mu- nicipal authorities have constructed a vast number of buildings for the benefit of the workingmen and the poorer classes of people.*^" The local corporation is possessed of much real estate inherited from the old municipality, from which it re- ceives an annual net income in excess of five hundred thousand dollars.*® Liverpool is noted for the extent of its commerce. It has seven miles of continuous docks and surrounding quays. Much attention has been given by the munici- pality to education and the fine arts.'*^ The municipal government is like that of other Eng- lish boroughs. The city is divided into sixteen wards. Each ward elects three members to the council. There are sixteen alderman, elected as in other places in Eng- land and "Wales by the councillors. The quarter sessions for criminal causes is presided over by a recorder. "The court of passage for civil cases is a very ancient institution dating from the foundation of the borough of King John, originally intended for cases arising out of the imports and exports passing through. Its jurisdiction has been confirmed and set- tled by Parliament and it is now competent, by consent, to try causes to any amount. The mayor is nominally the president, but the actual judge is an assessor ap- pointed by the crown. There are two police courts which sit daily, one presided over by the lay magistracy, and the other by the stipendiary magistrate."** Albert Shaw, Mun. Gov. In Gr-^at 47. Nelson, Encyc, tit. "Liver- Britain, ch. VI, pp. 168 to 193. pool." 45a. Shaw, Mun. Gov. in Great 48. 14 Encyc. Britannica (9tU Britain, p. 214, et seq. Ed.), 714. 46. New International Encyc, tit. "Liverpool." 182 Municipal Cobpoeations. ^ 82 Manchester. Of Manchester Albert Shaw says: "Cer- tainly the symmetrical and virile character of its mu- nicipal institutions entitles it to a place of leading im- portance in any account of the well governed cities of the world. Manchester's progress as a manufacturing and commercial center has been a long series of triumphs. In none of our great American cities have the municipal organization and its appurtenances compared at all fa- vorably with the achievements of industry, commerce and private enterprise. Manchester presents the picture of a populous community created almost wholly by the developments of modern industrialism, magnifying its municipal interest concerns, and bringing as much wis- dom, energy and foresightedness to the management of the affairs of the municipal corporation as its most ex- perienced citizens have bestowed upon their large pri- vate undertakings. ' ' ** A distinguished English author. Sir J. R. Sommers Vine, remarked of Manchester that, "by the excellent excellence of its local regime it has come to be regarded, and not without good reason, as the foremost example of English modern municipal government." The governing body of Manchester is a council com- posed of sixteen aldermen and forty-eight councillors who represent the fifteen wards into which the city is di- vided. The mayor is the presiding officer of the council. Water and light is furnished by the municipality to its citizens and also to districts outside of the city.^" § 82. London. "The city of London, when it springs into historical light, is a collection of communities based on the lord- ship, the township, the parish and the guild. "^* London is composed of a number of urban districts variant from each other so that each district adds a dis- 49. Shaw, Municipal Govern- 51. 1 Stubb's Const. History of ment in Great Britain, ch. 5. England, ch. 5, p. 101. 50. 15 Encyc. of Britannica (9th Ed.), 461. § 82 GOVEENMENT OF LoNDON. 183 tinct artificial personality to the metropolis. Greater London has a population of 7,429,740— (1909). The idea of practicability rather than that of beauty has prevailed in the building of London. For the most part the streets are narrow and in the more densely pop- ulated section sunlight and air are lacking. The government of London is especially different from that of other cities of Great Britain. Two sets of au- thorities govern London, central and local. The cen- tral government defines the powers, duties and jurisdic- tion of the local officers, who are under the control, to a very large extent, of different departments of the Brit- ish government. Certain boards also exercise an influ- ential control in local affairs, e. g., the Board of Educa- tion may withhold the government grant provided the eflSciency of the school system in each district shall be maintained; the consent of the Board of Agriculture is necessary to enclose a park or common; for the extension of the electric lighting system it is necessary to obtain the consent of the Board of Trade. Other local authorities exist designed to promote ade- quate local administration in supplying needs, conven- iences and comforts to the inhabitants, e. g., the Metro- politan Water Board, established in 1903, supplies water to the residents in a territory of some 620 square miles, known as "Water London;" the Metropolitan Asylum Board, founded in 1867, to provide, maintain and man- age certain hospitals and asylums for imbeciles and for poor law children for the Poor Law Unions of Ijondon. For the administration of the poor law, London is di- vided into thirty Poor Law Unions.*** 52. Percy Ashley, local and British City, ch. 14: New Inter- Central Government, p. 46 et seq; national Bncy., tit. "London;" Lowell, The Government of En?- Nelson Encyc, tit. "London." land, chaps. 42 and 43, p. 202 et London's complex administra- seq; Shaw, Municipal Government tive problems. "London presents in Great Britain, ch. 8; Munro, a series of administrative prob- Gcvernment of European Cities, lems greater and more complex ch 3, p. 341 et seq; Howe, The than those of any other city In 184 Municipal Ooepoeations. § 82 The present municipal organization is based mainly upon the Local Grovemment Act of 1888, and the London Government Act of 1899.^' The Local Grovernment Act of 1888 is the basis for the organization of the London County Council, which is composed of 118 councillors, two for each parliamentary district, elected, with a term of ihree years, and 19 alder- men, chosen by the council for a six year term, one-half (either nine or ten) retiring every three years. Alder- men may be taken from the council or from persons not members thereof. Fpur councilmen are elected by the city of London, and the remaining 114 are chosen from the 57 electoral divisions. London county was carved out of the ancient coun- ties of Middlesex, Kent and Surrey. The London County Council is the central authority for the administrative county of London. It is a corporate body. During the greater part of the year it meets once a week. The council is composed of some twenty chief committees and a number of sub-committees. In its general form, it is similar to other county councils, however, since special and particular powers and duties are essential for the administration of the vast urban area and the crowded population of the great metropolis, the powers of the London County Council embrace all of those of the ordinary County Council, and additional powers in- dispensable to govern well a large urban center or mu- nicipality."* the world. It is not that the prob- although the arrangements of lems are different in kind, for the each group are open to much needs of the -vast urban popula- criticism, the division of labour tions are everywhere the same, is in itself an absolute necessity." but that their larger extent ren- Ashley, Local and Central Gov- ders it practically impossible for ernment, ch. 1, § 4, p. 47. all the administrative details to 53. 62 and 63 Vict., C. 14. be dealt with adequately by a 54. 2 Lowell, ch. 43, p. 215 et single authority. Consequently in seg. aa to the "London County London there are two sets of au- Council." thorities — central and local — and §82 GOVEKNMENT OF LoNDON. 185 An Englisli author remarks: "The elections of coun- cillors are always contested on party lines, but the at- tempts made to identify political with municipal parties have not been very successful; only at the general parliamentary election of . 1906 did the municipal and parliamentary representation of London become at all identical."^** The old city is reputed to be the most ancient munici- pal corporation in England,^* notwithstanding it is generally believed that the first formal charter of incor- poration was granted to Kingston-upon-HuU in 1439.^' The government of the ancient city has its roots in the middle ages. Its constitution originated in the sixteenth century, and has existed without material change for about four hundred and fifty years. The corporation of 55. Percy Ashley, Local and Central Government, ch. 1, § 4, p. 47. 56. Ancient government of old London. The city "was governed by an alderman (eorlderman) as early as 886, and by a port-reeve and bishop at the conquest and possessed even at that date rights independently of any charter as a distinct civitas or communitas, possibly derived from its history as a Roman munictpium. It has since the conquest received many charters dating from William I; and in 1191 the government, if it had previously been in the nature of a shire, was made or recognized as a communa governed by a mayor; and the right to elect one annually was given by charter in 1215." 8 Encyc. of the Law of England, tit. "London City." William the Conqueror's char- ter or "protection" to London, (originally in Anglo-Saxon) trans- lated: "William the King friendly salutes William the Bishop and Godfrey the port-reeve, and all the burgesses within London, both French and English. And I de- clare that I grant you to be all law-worthy as you were in the days of King Edward; and I grant that every child shall be his father's heir, after his father's days; and I will not suffer any person to do you wrong. God keep you." Brady, Cities and Boroughs, p. 16; Hume's Hist, of England, Appendix 2. "But the famous charter, as it is called, of the Conqueror to the city of London, though granted at a time when he assumed the ap- pearance of gentleness and len- iety, was nothing but a letter of protection, and a declaration that the citizens should not be treated as slaves." Glover, Mun. Corp., p. 21. 57. § 51, supra. 186 Municipal Corporations. § 82 the City of London limited to one square mile of ter- ritory consists of a Lord Mayor, twenty-six aldermen, and a common council of two hundred and six members. The aldermen are elected for life and the councillors an- nually by the members of the "livery companies," de- scendants of the mediaeval guilds. Th old corporation occupies a striking historical po- sition, and as a central authority, is invested with spe- cial privileges, and impressed with particular obligation, in part traditional. It has its own police force, is the port sanitary authority, controls most of the central mar- kets and the bridges connecting the ancient city with South London, certain powers relating to the administra- tion of justice within its limits, including the appoint- ment of two sheriffs.** Metropolitan boroughs. The London Government Act of 1899, divides London, exclusive of the ancient city, into twenty-eight metropolitan boroughs, the governing authorities of each is a mayor, councillors, and alder- men. The mayor's term is one year. The members of the council not exceeding sixty are elected every three years, and the aldermen not exceeding one-sixth of the number of councillors are selected by the council for a term of six years. The London borough is subject to supervisory control in certain matters by the Local Gov- ernment Board and the London County Council.^^ The metropolitan police have charge of an area of about 688 square miles, and is under control of the Cen- tral government through the Home Secretary. The pop- ulation of this area is probably more than seven mil- lions.®'* ' 58. Ashley, Local and Central 60. Ashley, Local and Central Government, ch. 1, § 4, p. 50; Government, p. 49. 2 Lowell, The Government o( 2 Lowell, The Government of England, ch. 42, pp. 205-209. England, ch. 42, p. 204, gives this 59. 62 and 63 Vict., ch. 14; 8 district as 693 square miles. Encyc. of the Laws of England, Modern London is not a city. 21, 22. "The monstrous, oppressive, par- §83 Municipal. Govebnment of Scotland. 187 § 83. Modern municipal government in Scotland. Glasgow is a high type of vigorous municipal life. It is a distinctively modern commercial city, and is a strik- ing example of phenomenal urban growth. "The public health has been the dominant motive in the development of the municipal functions of Glasgow." ^^ As a municipal corporation it presents some complexity in its organization by reason of its several charters alyzing bulk of modern London is becoming one of the great diseases of English civilization. It is a national calamity that one-sixth of the entire population of Eng- land are, as Londoners, cut o£C at once both from country life and from city life; for those who dwell In the vast suburbs of London are cut ofE from city life in any true sense. A country covered with houses is not a city. Four or five millions of people herded together do not make a body of fellow- citizens. A mass of streets so endless that it is hardly possible on foot to get out of them into the open in a long day's tramp — streets so monotonous that, but for the names on the street cor- ner, they can hardly be distin- guished one from the other — with suburbs so unorganized and me- chanical that there is nothing to recall the dignity and power of a great city — with a population so movable and so unsociable that they are unknown to each other by sight or name, have no in- terest in each other's lives, cannot be induced to act in common, have no common sympathies, enjoy- ments, or pride, who are perpetu- ally hurrying each his own way to catch his own train, omnibus, or tram-car, eager to do a good day's business on the cheapest terms, and then get to some dis- tant home to a meal or to rest. That is not life, nor is it society. These huge barracks are not cities. Nor can an organic body of citizens be made out of four millions of human creatures indi- vidually grinding out a monoto- nous existence." Frederic Harri- son's Meaning of History, p. 241. "London is not a city. It is a score of cities. Everybody speaks of it as a city, but nobody really tlnnks it is one. Men think only of what London means to them. It means Mayfair, Belgravla, Westminster, the city about the Bank, or Whltechapel. London is a place — a place where tie world-wide empire of Great Brit- ain and, in a sense, all mankind, converge. It is a place, too, where all the world comes. Men live in closer association here than any- where else in the world. But still London is not a city. It is not a city In the eyes of the law. It Is a county. And its governing body is called a county council." Howe, The British City, ch. XIV, p. 203. 61. Shaw, Municipal Govern- ment In Continental Europe, ch. 7, p. 378. 188 Municipal CoBPOBATioiirs. § 83 granted to it from time to time, which are variant. The city is divided into twenty-five wards, and each of these divisions chooses three members of the coimcil for a term of ttree years, and one member from each ward an- nually retires. In addition to the seventy-five members elected to the council, the local governmental powers are exercised by these seventy-five and the prevdst, and two other ex-officio members, constituting in the aggregate seventy-eight. The two ex-officio members are the Lord Dean of the Guild, who represents the venerable Mer- chant's House, and the Deacon Convener, or chairman of the associated trade guilds. They represent the trades- men.^^ The councillors receive no salary. Tlie cuiet executive, the prevost, customarily designated Lord Prevost, and the fifteen bailees, or magistrates who preside at the po- lice courts, are selected by the council from their own body for a term of three years. The body of seventy- eight men, above mentioned, are officially known, as ' ' The Lord-prevost or magistrates and council." Various municipal departments exist to administer the general municipal functions, as the water commis- sioners, gas trustees, market and slaughter house commis- sioners, park and galleries trustees, city government trustees and a board of police commissioners. A separate organization exists for each department and the munici- pal work is supervised by standing committees of the council. There are also other municipal officers. The town clerk is an important official. Likewise the cham- berlain who is the treasurer. The council controls the police department and appoints all members thereof.*^ Perhaps in recent years no city has been brought more prominently into notice than Glasgow. Its civic spirit is intense. In the various lines of municipal endeavors it stands among the first of modern cities. There the 62. Shaler, "United States of 63. Sbaw, Municipal Govern- Amerlca," Vol. 2, pp. 223-227; ment In Great Britain, ch. 4, A Howe, "The British City," ch. 13. Study of Glasgow '^ 84 Edinburgh. 189 principle of municipal ownership lias reached a remarka- ble development. The water supply, gas and electric power, tramways and municipal lodging house are owned and successfully managed by the city."* , The example which Glasgow affords and the lesson it teaches will not fail to impress the intelligent in every land that civic pride, enthusiasm and ceaseless energy, wisely directed, are the essentials in modern city- making. Edinburgh, Scotland's capital and Midlothian's county town, is a royal and parliamentary burgh, and is gov- erned by a municipal council of fifty members, namely, a lord prevost, a treasurer, seven bailees, who constitute the civil magistracy, a dean of guild who is elected to the council by the guild brethren, a convener of trades, seven judges of police, and thirty-two councillors. Four representatives are sent from Edinburgh to Parliament, one from each parliamentary district. During recent years the municipal activities of Edin- burgh have attracted world-wide attention."* "The corporation has acquired the gas works, the ca- ble tramways (leased to a company) the electric light- ing of the streets, and the water supply.""'** 7. MUNICIPAL ADMINISTEATION IN THE UNITED STATES, ITS NATUEE AND COMPLEX CHAEACTER, ENUMERATION OF CERTAIN DEFECTS AN'D SUGGESTIONS FOE IMPROVEMENT. § 84. Importance of municipal government. Off the cost of New Foundland the Gulf Stream oearing its warm currents from the tropics meets the currents from the frigid zone, producing the dense fog which is the terror of the mariner. So the extremes of human 64. 12 Encyc. Britannlca (11th 65a. 8 Encyc. Brltannlca (llth Ed.), p. 84. Ed.), p. 941. 65. New International Encyc, tit. "Edinburgh." 190 Municipal Coepoeations. §84 virtue and vice, the conflicting selfisliness and ambitions of men meet in the crowded urban centers, producing the problem which is the terror of municipal govern- ment. The problem of the city is the problem of civiliza- tion.^' 66. Importance of municipal government. "The city is the condensation of the ages; the ag- gregation of all that Is best in civilization, and of all that is worst in the remnants of barbar- ism." Parsons, The City for the People, Preface, p. 5. President Roosevelt in his mes- sage to the Congress, December 3, 1901, timely observed that "the_ most vital problem with which this country, and for that matter the whole civilized world, has to deal 'relates to the' social con- ditions, moral and physical in large cities." "Municipal problems are only one phase of the great problem of human life. * * * "The city, the modern city, is the place where the forces of good and evil are more than every- where else lined up for the con- flict. The city is the heart of this great campaign. The city is the Gettysburg of the long war. The city is the Quarte Bra in the Wa- terloo of the ages. To a great city come both the worst forces and the best forces of the nation. Here gather the criminals, the Ishmaelities, the men whose hand is against every man. "But here also come the great forces for intelligence and for virtue. Here the noblest elements of humanity are found, here the strength, the heroism and the in- telUgence compacted together. Here are the great commercial enterprises; not merely money- making, but humanity-serving. * • * "Here are the great schools. To the towns and cities come the parents, bringing their children to be educated, because in the towns and cities are the great uni- versities, the great industrial and professional schools. Here the public school is seen at its best, Here, too, are the great churches, Protestant, Catholic, Jewish." Rev. Lyman Abbott, D. D. "Municipal government is the problem of the age. It touches us in our daily lives a dozen or a score of times while the State or National government touches us once. The condition of the water we drink and with which our food is cooked, the condition of the air we breathe, and of the streets upon which we walk or ride, is determined largely or en- tirely by our local government; and also the public order, public education, public conveyance of all kinds, and other important matters too numerous to' mention, are determined by our local gov- ernment Let us learn to solve our local problems well, and in the interest of all," C. F. Taylor, The City for the People, Prefa- tory Note. § 85 Municipal Administbation in United States. .191 Nearly three decades have passed since an enlightened English statesman, in presenting in permanent form the result of an intelligent and elaborate study of our insti- tutions, wrote: "There is no denying that the govern- ment of cities is the one conspicuous failure of the United States."" While this may have expressed the opinion of thought- ful Americans of that time, in view of the progress in municipal government in this country during the past years the statement needs some modification; however, it is a stubborn fact that cannot be denied that much more improvement is essential, to exempt our municipal administrations from just adverse criticism. That im- provement is progressing rapidly;®* Speaking generally, it must be conceded that, munici- pal government in this coimtry has been unsatisfactory. The difficult and serious problem of how best to govern our cities is not confined to the greatest cities, but ex- tends to all of the larger cities and public corporations of the country. § 85. Same — rapid increase of urban population. The marvelously rapid increase of urban population in the last and the present century is an important fact which cannot fail to impress profoundly the thoughtful 67. 1 Bryce, Am. Com. (1st sick man who cannot find rest Ed.), p. 608 (now ambassador upon his bed, but seeks to ease from Great Britain to the U. S.). his pain by turning from side to 68. Municipal conditions im- side. Yet no one who studies the proving. "Wherever there Is a municipal history of the last de- large city there are loud com- cade will doubt that things are plaints, and Americans who deem better than they were twenty themselves In other respects a years ago. The newer frames of model for the Old World are in government are an Improvement this respect anxious to study Old upon the older. Rogues are less World models, those particularly audacious. Good citizens are more which the cities of Great Britain active. Party spirit Is less per- present. What Dante said of his mitted to dominate and pervert own city may be said of the cities municipal politics." 1 Bryce, Am. of America. They are like the Com., ch. 51 (1888). 192 ■ Municipal Coepobations. § 85 mind. This agglomeration of people into congested cen- ters goes steadily on in nearly every civilized country on the globe. With few exceptions the rural population is constantly diminishing. In country regions everywhere towns spring up; towns quickly become cities; and cities within a remarkably short time become densely popu- lated.«9 The growth in urban centers in Scotland, England, Germany, Italy, Belgium, Holland, Hungary, and the Netherlands has advanced with rapid strides during the past few years. Likewise other communities of Conti- nental Europe have materially increased in population in their chief centers. France has shown some increase but not to the extent of the countries mentioned.'^" The massing of people in the centers of manufacture, distribution and exchange has advanced more rapidly in Germany and England during recent years than in the United States.^^ Seventy- seven per cent of the population of the Brit- ish Isles lives under urban conditions, and about four- fifths of the people dwell in towns. Year by year the percentage of urban residents increases, while the num- ber of those who live in the country districts dimin- ishes.''^ "England is becoming more and more a collec- tion of cities, and this has wrought a marked change in the character and political temperament of her peo- ple. "'^ 69. "A stately city, towering Growth of Cities In the Nlnsr in the pride teenth Century. Of vast achievement, glorious See comparative tahle of rela- wlth success, tive growth of cities of Germany Luring the world with golden and the United States In Munro, promises.", "Manhattan," by The Government of European Francis Dana in Bverybodys Cities, eh. 11, p. 111. Magazine, June, 1910. 72. Howe, The British City, 70. §§ 77, 78, supra; Shaw, ch. 1. See Shaw, Mun; Gov. Municipal Government in Great Great Britain, ch. 1, p. 11 et seq. Britain, ch. 1. 73. Lowell, The Government 71. § 73, supra; Weber, of England, Vol. 2, ch. 38, p. 143. 86 Inckease of Urban PoPULAaiON, 193 It is less than a hundred years since Europe had many- cities over 100,000 population. Now that country and the United States have more than two hundred such cit- ies. At present the ten largest cities of the world, with more than a million population each, aggregate 26,067,681 inhabitants. Seven of these cities have more than two millions each; six are in Europe, three in America and one in Asia. Their respective populations appear in the note.'^* § 86. Rapid increase of urban population in the United States. When the nation inaugurated its first president in 1789, Philadelphia, the largest city, contained a population of only 42,000, New York City about 33,000 and Boston nearly 18,000, constituting an aggregate population of some 93,000 in the three leading urban centers.^^ Hence at this time the problem of city government was of com- paratively small importance. But the constant and rapid, and in many instances, phenomenal growth of cit- ies in this country has given them a vast influence in our political and social life, and has created intricate and 74 POPULATION OF THE TEN LAEGEST CITIES IN THE WOKLD. City 1. London 2. New York 3. Paris 4. Tokyo 5. Chicago 6. Vienna 7. Berlin 8. St. Petersburg. 9. Philadelphia . . 10. Moscow Year of Census or Population Estimate 1909 . 7,429,740 1910 4,766,883 190r. 2,763.393 1908 2,186,079 1910 2,185,283 1909 2,085,888 1910 2.064,153 1905 1,678,000 1910 1,549,008 1907 1,359,254 75. The U. S. of Am., Shaler, Vol. 1, pp. 214, 215; 1 Bryce, Am. Com., ch. 52. 1 McQ.— 13 194 MtTNICIPAI, COBPOEATIONS. § 86 complex governmental problems, especially applicable to them, and which demand just solution. This fact was quickly recognized, and, therefore, the more recent state constitutions contain many provisions relating to munic- ipal government; the various state legislatures of recent years have been active in passing laws affecting cities and towns; our judicial decisions disclose considerations of many important and intricate municipal problems; and students both practical and theoretical have writ- ten volumes on this subject, in addition to numerous articles in periodicals discussing the manifold phases of urban life. In 1880 there was in the United States only one city. New York, which had a population of one million or more. In the next decade (1890) there were three. New York, Chicago and Philadelphia, and since then the pop- ulation in each has increased rapidly. In 1890 there were only 28 cities having a population of more than 100,000; in 1900 this number was increased to 38, and in 1910 to 50, with an aggregate population of 20,302,138. In 1900 these cities had an aggregate popu- lation of 15,199,375; in 1890 of 11.470,364. Thus the in- crease in these cities between 1890 and 1900 was 3,729,011 or 32.5 per cent; between 1900 and 1910, 5,102,763, or 33.6 per cent. The population and the relative rank of the 50 cities having 100,000 or more inhabitants in 1910 are set forth in the table, compiled and announced by the United States Census Bureau, which also shows the pop- ulation and the rank of such cities in 1890 and 1900. §86 Incbease of Ukban Population. 195 CITIES OF OVER 100,000 POPULATION: 1910. City Population Per Cent ' of Increase igto 190D 1890 1800 to 1810 1880 to 1800 Total for cities of over 100,000 population.... 20,302,138 15,199,375 11,470,364 33.6 32.5 Albany, N. Y 100,253 154,839 558,485 132,685 670,585 102,054 423,715 104,839 2,185,283 363,591 560,663 181,511 116,577 213,381 465,766 119,295 112,571 233,650 267,779 248,381 319,198 223,928 106,294 131,105 373,857 301,408 110,364 347,469 133,605 339,075 4,766,883 150,174 124,096 125,600 1,549,008 533,905 207,214 224,326 127,628 218,149 687,029 214,744 416,912 129,867 237,194 101,402 137,249 168,497 331,069 145,986 94,151 89,872 508,957 38,415 560,892 70,996 . 352,387 ' 91,886 1,698,575 325,902 381,768 125,560 85 333 133,859 285,704 104,863 87,565 169,164 206,433 163,752 102,479 204,731 94,969 102,320 285,315 202,718 80,865 246,070 108,027 287,104 3,437,202 66,960 102,555 105,171 1,293,697 ' 451,512 90,426 175,597 85,050 162,608 575,238 163,065 342,782 102,026 80,671 3p,848 108,374 131,822 278,718 118,421 94,923 65,533 434,439 26,178 448,477 48,866 255,664 70,028 1,099,850 296,908 261,353 88,150 61,220 106,713 205,876 74,398 60,278 105,436 163,003 132,716 50,395 161,129 77,696 64,495 204.468 164,738 76,168 181,830 81,298 242,039 2 2,507,414 48,682 140,452 78,347 1,046,964 s 343,904 46,385 132,146 81,388 133,896 451,770 133,156 298,997 75,215 42,837 19,922 88,143 81,434 230,392 84,655 6.5' '0.8 Atlanta, Ga 72.3 37.1 Baltimore, Md 9.7 :17.2 Birmingham, Ala Boston, Mass 245.4 4C.7 19.6 25.1 Bridgeport. Conn Buffalo, N. Y Cambridge, Mass 43.7 45.3 20.2 37.8 14.1 31.2 Chicago, 111 28.7 54-4 Cincinnati, Ohio 11.6' 9-8 Cleveland, Ohio 46.9 46.1 Columbus, Ohio 44.6 42.4 Dayton, Ohio 36.6 39.4 Denver, Colo 59.4 25.4 Detroit, Mich 63.0 38.8 Pall River, Mass 13;8 40.9 Grand Rapids, Mich Indianapolis, Ind 28.6 45:3 38.1 60.4 Jersey Citv, N. J 29.7 26.6 Kansas City, Mo 51.7 23.4 Los Angeles, Cal 211.5 103.4 Louisville, Ky 9.4 27.1 Lowell, Mass 11.9 22.2 Memphis, Tenn 28.1 58.6 Milwaukee, Wis 31.0 39.5 Minneapolis, Minn Nashville, Tenn 48.7 36.5 41.2 23.7 18.1 38.7 124.3 21.0 19.4 19.7 18.2 129.2 27.8 50.1 34.2 23.1 6.2 Newark, N. J 35.3 Nelw Haven, Conn New Orleans, La 32.9 18.6 New York, N. Y 37.1 Oakland, Cal 37.5 Omaha, Nebr '27.0 Paterson, N. J 34.2 Philadelphia, Pa 23.6 Pittsburg, Pa 31.3 Portland, Oreg 94.9 Providence, R. I 32.9 Richmond, Va 4.5 Rochester, N. Y 21.4 St Louis, Mo 19.4 27.3 St. Paul, Minn 31.7 22.5 San Francisco, Cal Scranton. Pa 21.6, 14.6 27.3 35.6 Seattle, Wash 191.0 88-3 Snokane. Wash 183.3 26.6 27.8 18.8 23.3 85.0 Svracuse. N Y 23.0 Toledo. Ohio fil.9 Washington, D. C Worcester, Mass 21.0 39.9 196 Municipal Coepoeations. §86 Tliere are 19 cities in the United States, each with more than a quarter of a million inhabitants. The pop- ulation and relative rank of these cities together with their respective population and rank in 1910, 1900, and 1890, appear in the note.''^ 77 CITIES OF OVEB 250,000 POPULATION: 1910. City Population Rank 19ia 190D 1890 1910 1900 1890 New York Chicas:o 4,766.883 2,185,283 1,549,008 687,029 670,585 560,663 558,485 533,905 465,766 423,715 416,912 373,857 363,591 347,469 339,075 331,069 319,198 301,408 267,779 3,437,202 1,698,575 1,293,697 575,238 560,892 381,768 508,957 321,616 285,704 352,387 342,782 285,315 325,902 246,070 287,104 278,718 102,479 202,718 206,433 1,515,301 1,099,850 1,046,964 451,770 448,477 261,353 434,439 238,617 205,876 255,664 298,997 204,468 296,908 181,830 242,039 230,392 50,395 164,738 163,003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 2 3 4 5 7 6 11 13 8 9 14 10 16 12 15 35 19 17 1 2 Philadelphia St. Louis 3 4 Boston 5 Cleveland Baltimore Pittsburg Detroit 9 6 12 14 Buffalo 10 San Fran Cisco Milwaukee Cincinnati Newark 7 15 8 16 New Orleans Washington Los Angeles Minneapolis Jersey City 11 13 55 17 18 Of the 19 cities now having over a quarter of a million inhabitants 4 — Newark, Los Angeles, Minneapolis and Jersey City — have entered this group since 1900. The city of St. Joseph, Mo., with a population of more than 100,000 in 1900, fell to 77,403 in 1910, and Alleghany City, Pa., having a population of 129,896 in 1900 has since been annexed to Pittsburg. These two cities, there- fore, do not appear in the above table. Of these 50 cities, 34 made a 1 Decrease. ' Estimated population in 1890 of the area of present New York. The population of New York as it existed in 1890 was 1,515,301. ' Includes population of Allegheny, which was, in 1900, 129,896, and in 1890, 105,287. §86 Increase of Urban Population, 197 We have 178 cities with a population each of between 25,000 and 100,000. In 1900, 107 of these had a popula- tion of 25,000 to 100,000, 70 have risen above the 25,000 limit since 1900, and one has fallen below the 100,000 limit since 1900. The aggregate population of these 178 cities is 8,204,- 960; in 1900 it was 5,878,814, showing an increase during the decade of 2,326,146, or 39.6 per cent. These cities with their respective populations and rel- ative rank in 1910, 1900; and 1890, with percentages of increases appear in the note.^^ 78 CITIES OF TBOM 25,000 TO 100,000 POPULATION: 1890-1910. City Population L Per Cent of Increase 1910 1900 189D 1900 to 1910 1890 to 1900 69,067 42,728 27,601 61.6 54.8 51,913 35,416 25,228 46.6 40.4 52,127 38,973 30,337 33.8 28.5 31,267 20,929 17,336 49.4 20.7 46,150 27,838 13,055 65.8 113.2 34,668 30,345 25,858 14.2 17.4 41,040 39,441 33,300 4.1 18.4 29,807 24,147 19,688 23.4 .22.6 29,860 22,258 14,575 34.2 52.7 25,267 18,563 13,197 36.1 40.7 45,166 27.628 27,839 63.5 '0.8 Akron, Ohio Allentown, Pa Altoona, Pa Amsterdam, N. Y. . . Atlantic City, N. J.. Auburn, N. Y Augusta, Ga Aurora, 111 Austin, Tex Battle Creek, Mich. . Bay City, Mich greater absolute Increase of popu- lation during the decade 1900 to 1910 than during the preceding decade, and 24 made also a greater percentage of increase. Although the rates for indi- vidual cities vary widely, rang- ing from 6.5 per cent in the case of Albany, N. Y., to 245.4 per cent in the case of Birmingham, Ala., it is rather noteworthy that there are 10 important cities which show approximately the same rate of increase during the last decade, viz., Boston (19.6 per cent), Buffalo (20.2 per cent). New Orleans (18.1 per cent), Omaha (21 per cent), Paterson (19.4 per cent), Philadelphia (19.7 per cent), Pittsburg (18.2 per cent), St. Louis (19.4 per cent), San Francisco (21.6 per cent), and Washington (18.8 per cent). Fourteen cities of those includ- ed in this list have risen above the 100,000 limit since 1900, namely, Albany, N. Y., Atlanta, Ga., Birmingham, Ala., Bridge- port, Conn., Cambridge, Mass, 198 Municipal Cobpohations. §86 About one-third (68 out of 228) of the cities in con- tinental United States show an increase of over 50 per TSciTiEa OF FROM 25,000 TO 100,000 popttlation: 1890-1910 — Continued. City Population Per Cent of Increase igio * 1S00 1890 1900 to 1910 189010 1900 55,545 32,722 19,033 69.7 71.9 40,434 13,214 5,101 206.0 159.0 48.443 39,647 35,005 22.2 13.3 25,768 23,286 20,484 10.7 13.7 56,878 40,063 27,294 42.0 46.8 27,792 19,935 12,103 39.4 04.7 39,165 30,470 10,723 28.5 184.2 94,538 75,935 58,313 24.5 30.2 50,217 30,667 26,189 63.7 17.1 32,811 25,656 18,020, 27.9 42.4 58,833 55,807 54,955 5.4 1.6 34,014 18,091 11,557 88.0 56.5 44,604 30,154 29,100 47.9 3.6 32,452 34,072 27,909 14.8 22.1 38,537 33,988 20,226 13.4 68.0 25,401 19,167 14,050 32.5 36.4 25,577 22,698 13,619 12.7 66.7 29,078 21,085 11,140 37.9 89.3 26,319 21,108 15,353 24.7 37.5 29,292 25,802 21,474 13.5 20.2 53,270 42,938 37,371 24.1 14.9 92,104 42,638 38,067 116.0 12.0 27,871 16,354 11,491 70.4 42.3 43,028 35,254 26,872 22.1 31.2 31,140 20,754 16,841 50.0 23 2 86,368 62,139 50,093 39.0 24.0 38,494 36,297 30,311 6.1 19.7 78,466 52,969 33,115 48.1 60.0 28,523 25,238 14,481 13.0 74.3 34,371 21,506 13,282 59.8 61.9 58,547 29,655 15,169 97.4 95.5 39,279 15,906 10,338 146.9 53.9 25,976 22,433 17,823 15.8 25.9 73,409 52,130 37,764 40.8 38.0 37,176 35,672 30,893 4.2 15.5 66,525 52,733 40,634 ' 26.2 29.8 69,647 59,007 50,756 18.0 16.3 33,484 24,336 11.068 37.6 119.9 JUayonne, N. J Berkeley, Cal Blnghamton, N. Y Bloomlngton, III! Brockton, Mass Brookline, Mass Butte, M6nt Camden, N. J. Canton, Ohio Cedar Rapids. Iowa Charleston, S. C Charlotte, N. C Chattanooga, Tenn Chelsea, Mass Chester, Pa Chicopee, Mass Clinton, Iowa Colorado Springs, Colo Columbia, S. C Council Bluffs. Iowa. . . . Covington, Ky Dallas, Tex Danville, III Davenport, Iowa Decatur, 111. Des Moines, Iowa Dubuque, Iowa Dulluth, Minn Easton,Pa East Orange, N. J East St. Louis, 111 El Paso, Tex Elgin, 111 Elizabeth, N. J Elmira, N. Y Erie, Pa Evansville,' Ind Everett, Mass ' Decrease Dayton, Ohio, Grand Rapids, Mich., Lowell, Mass., Nashville, Tenn., Oakland, Cal., Portland, Oreg., Richmond, Va., Seattle, Wash., and Spokane, Wash. The city of Allegheny, Pa., which was annexed to Pittsburg in 1907, is not included in the list, and the population in 1890 and 1900 is added to that of Pittsburg. §86 Increase op Ueban Population. 199 cent from 1900 to 1910. Of the northern cities about 78 CITIES OF FROM 25,000 TO 100,000 POPULATION: 1890-1910 — Continued. City PopulatioE Per Cent of Increase 1910 1900 1S9D 1900)0 1910 109011) 1900 37,826 31,531 22,037 20,0 43.1 38,550 13,103 9,803 194.2 33.7 63,933 45,115 35,393 41.7 27.5 73,312 26,688 23,076 174.7 15.7 36,981 37,789 29,084 '2.1 29.9 25,236 18,684 9,009 35.1 100 35,279 23,914 17,565 47.5 '6 1 64,186 50,167 39,385 27.9 •27.4 98,915 79,850 53,230 23.9 50.0 44,115 37,175 27,412 18.7 35.6 25,452 14,230 11,872 78.9 19 9 70,324 59,364 43,648 18.5 30.0 57,730 45,712 35,637 26.3 28.3 78,800 44,633 27,557 76 6 62.0 31,161 11,923 10,108 161.4 18.0 31,433 25,180 20,798 24.8 21.1 57,099 28,429 17,201 103.0 65.3 31,297 22,892 16,038 30.7 42.7 55,482 35,936 21,805 54.4 64.8 34,670 29,353 23,264 18.1 26.2 32,073 20,023 9,943 23.2 161.7 39,437 24,404 17,853 61.6 36.7 82,331 51,418 38,316 60.1 34.2 25,908 24,535 21,261 5.0 15.4 36,346 32,637 22,535 114 44.8 30,417 28,895 25,090 5.3 15.2 47,227 41,459 32,011 13.9 29.5 31,229 16,485 13,102 89.4 25.8 85,892 62,559 44,654 37.3 40.1 26,247 23,761 21,701 10.5 9.5 35/099 26,369 21,567 33.1 22.3 30,508 21,723' 15,981 40.4 35.9 43,973 40,169 55,154 9.5 '27.2 45,941 3S,307 25,874 19.9 48.1 28,883 16,028 4,863 80.2 229.6 29,494 18,891 19,709 56.1 '42 89,336 08,513 55,727 30.4 22.9 40,005 23,272 22,740 74.7 2.3 42,094 34,227 20,741 24.7 65.0 25,531 19,164 13,426 33.2 42.7 44.404 33,064 23,031 319 46.2 70,063 56,987 44,126 22.9 29.1 27,265 24,296 21,052 12.2 12.2 51,521 38,469 31,076 33.9 23.8 38,136 30,346 21,883 25.7 38.7 30,919 21,228 10,830 45.7 96.0 Fitchburg, Mass . . . Flint, Mich Fort Wayne, Ind . . . Fort Worth, Tex.. . Galveston, Tex. . . . Green Bay, Wis Hamilton, Ohio Harrisburg, Pa ... . Hartford, Conn . . . . Haverhill, Mass.. . . Hazleton, Pa Hoboken, N. J Holyoke, Mass Houston, Tex Huntington, W. Va. Jackson, Mich Jacksonvillie, Fla. . . Jamestown, N. Y. . . Johnstown, Pa Jollet, 111- Joplin, Mo Kalamazoo, Mi ch . . Kansas City, Kans. Kingston, N. Y Knoxvllle, Tenn La Crosse, Wis Lancaster, Pa Lansing, Mich Lawrence, Mass. . . . Lewiston, Me Lexington, Ky Lima, Ohio Lincoln, Neb Little Rock, Ark. . . Lorain, Ohio Lynchburg, Va Lynn, Mass Macon, Ga McKeesport, Pa. . . . Madison, Wis. ..... Maiden, Mass Manchester, N. H. . Meriden, Conn Mobile, Ala Montgomery, Ala. . . Mount Vernon, N. Y 1 Decrease 200 MuNICIPAIi COBPOBATIONS. §86 one-fifth (35 out of 166) show such an increase; of the 78 CITIES OF FEOM 25,000 TO 100,000 POPULATION: 1890-1910 — Continued. City Population 1910 ' 1900 Per Cent of Increase 1900 to 1910 1890 to 1900 Muskogee, Okla .'. . Nashua, N. H Newark, Ohio '. . . New Bedford, Mass New Britain, Conn. . . . Newburgh, N. Y Newcastle, Pa Newport, Ky Newport, R. I New Rochelle, N. Y. . . . Newton, Mass Niagara Palls, N. Y. . , Norfolk, Va Norristown, Pa , Ogden, Utah Oklahoma City, Okla. Orange, N. J Oshkosh, Wis Pasadena, Cal Passaic, N. J Pawtucket, R. I Peoria, 111 Perth Amboy, N. J. . . Pittsfield, Mass Portland, Me Portsmouth, Va Poughkeepsie, N.Y.. Pueblo, Colo Quincy, 111 Quincy, Mass Racine, Wis Reading, Pa Roanoke, Va Roekford, 111 Sacramento, Cal Saginaw, Mich St. Joseph, Mo Salem, Mass Salt Lake City, Utah. San Antonio, Tex. . . . San Diego, Oa.1 San Jose, Cal Savannah, Ga Schenectady, N. Y. . . Sheboygan, Wis Shenahdoah, Pa 25,278 26,005 25,404 96,652 43,916 27,805 36,280 30,309 27,149 28,867 39,806 30,445 67,452 27,875 25,580 64,205 29,630 33,062 30,291 54,773 51,622 66,950 32,121 32,121 58,571 33,190 27,936 44,395 36,587 32,642 38,002 96,071 34,874 45,401 44,696 50,510 77,403 43,697 92,777 96,614 39,578 28,946 65,064 72,826 26,398 25,774 4,254 23,898 18,157 62,442 25,998 24,943 28,339 28,301 22,441 ■ 14,720 33,587 19,457 46,624 22,265 16,313 10,037 24,141 28,284 9,117 27,777 39,231 56,100 17,099 21,766 50.145 17,427 24,029 28,157 36,252 23,899 29,102 78,961 21,495 31,051 29,282 42,345 102,979 35,956 53,531 53,321 17,700 21,500 54,244 31,682 22,962 20,321 19,311 14,270 40,733 16,519 23,087 11,600 24,918 19,457 9,057 24,379 C^) 34,871 19,791 14,889 4,151 18,844 22,836 4,882 13,028 27,633 41,024 9,512 17,281 36,425 13,268 22,206 24,558 31,494 16,723 21,014 58,661 16,159 23,584 26,386 46,322 52,324 30,801 44,843 37,673 16,159 18,060 43,189 19,902 16,359 15,944 494.2 8.8 39.9 54.8 68.9 11.5 28.0 7.1 21.0 96.1 18.5 56.5 44.7 25.2 56.8 539.7 22.7 16.9 232.2 97.2 31.6 19.3 81.5 47.6 16.8 90.5 16.3 57.7 0.9 36.6 30.6 21.7 62.2 46.2 52.6 19.3 '24.8 21.5 73.3 81.2 123.6 34.6 19.9 129.9 15.0 26.8 23.8 27.2 53.3 57.4 8.0 144.3 13.6 15 3 62.5 37.8 33.7 12.5 9.6 141.8 28.1 23.9 86.7 113.2 42.0 S6.7 86.1 26.0 37.7 31.3 8.2 14.7 15.1 42.9 38.5 34.6 33.0 31.7 11.0 >8.6 96.8 16.7 19.4 41.5 9.5 19.0 25.6 59.2 40.4 27.5 1 Decrease ' Incorporated since 1890 §86 Incbease of Ubban Population. 201 southern cities, about two-fifths (19 out of 44); and of the western cities, about three-fourths (14 out of 18). City Population 1910 1900 1890 Per Cent of _ Increase 1900 ody to the state. This may de- pend upon implied legislative intent. To create a public corpora- tion it must appear that the in- tent of the legislature in granting the incorporation is to create an ofiBcial agency of government. Such organizations as cities, towns, villages, counties and townships are typical public cor- porations; others are state uni- versities, incorporated boards of commissioners, trustees of a county asylum, or of a municipal hospital or library. "An attempt has been made to create a third class of corpora- tions under the names of quasi- public corporations, and to in- clude therein such as are organiz- ed primarily for the benefit of the members, but are engaged in enterprises in which the pub- lic interests are directly involv- ed, such as railway and ware- house companies. But there it is the use and not the corporation which is of a public nature. And it is an old principle of the law that, when 'private property Is affected with a public interest. It ceases to be juris privati only;' or as stated in a modern decision, when a person devotes his prop- erty 'to a use in which the pub- lic has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has created. He may withdraw his grant by discontinuing the use, but so long as he maintains the use, he must submit to the control.' (Munn V. Illinois, 94 U. S. 113). "Corporations which have re- ceived aid from the government for public purposes are sometimes classed as public corporations, but they are private corporations charged with public duties; and, in order that they may properly perform such duties, the state grants to them certain privileges and exemptions. Thus, the prop- erty of such a corporation which is necessary to enable it to per- form the public duties with which it is charged cannot be seized and sold to satisfy an ordinary judg- ment. Such bodies are what the supreme court of California has designated as 'corporations tech- nically private, but of a quasi- public character, having in view some public enterprise in which the public insterests are involved.' " Elliott, Mun. Corp. (2nd Ed.), § 2; Miner's Ditch Co. v. Zellerbach, 37 Cal. 543. "There are two kinds or classes of corporations; one kind is de- § 106 What Municipal Cobpobations Include. 251 Further classification, description or definition of cor- porations in general need not be given, since this work treats only of the law of such public corporations as are contemplated by the proper use of the term "Municipal nominated 'public,' and is founded for public purposes, and generally has for its object the government of a portion of the state, and is therefore endowed with a portion of political powers. Towns, cities, and boroughs are familiar ex- amples of this kind of corpora- tions. A private corporation is one created for the advancement of some private end." Rhodes v. Love, N. C. (1910), 69 S. E. 436. The fundamental division of all corporations is into public and private corporations. Phillips v. Baltimore, 110 Md. 431, 72 Atl. 902, 905. Judge Dillon adopts the usual division of corporations into pub- lic and private, 1 Dillon on Mun. Corp. (5th Ed.), §§ 90-94. Judge Thompson refers to the three general classes mentioned in the text. 1 Thompson, Com. Law. Corp., § 22 et seq. In Ten Eyek v. Delaware and Raritan Canal Co., 18 N. J. L. 200, 203, 204, it is said that "pub- lic corporations are political cor- porations or such as are founded wholly for public purposes and the whole interest in which Is in the public. The fact of the pub- lic having an interest in the works or the property or the ob- ject of a corporation does not make it a public corporation. All corporations, whether public or private, are in contemplation of law, founded upon the principle that they will promote the in- terest or convenience of the pub- lic. ♦ • * The Interest, therefore, which the public, may have in the property or the objects of a corporation, whether direct or in- cidental (unless it has the whole interest) does not determine its character as a public or private corporation." A canal company was held to be a private corporation. Follow- ed in Hanson v. Vermon, 27 Iowa 28, holding that a railroad com- pany is not a public corporation. A corporation for introducing water into a town for the accom- modation of the inhabitants was held to be a public corporation in Poster v. Fowler, 60 Pa. St. 27, 30, 31. "Where the public is not only the incorporator, but the creator of a corporation, and the use is also public, the corporation must in that case be public; whereas, if the association and institution is established by private agreement, and becomes a corporation merely by grant of a charter, the corpora- tion is private in its nature, pro- vided its purposes though of great public interest are still regarded as in the nature of private enter: prise, as distinguished from a gov- ernmental object." Andrew's Am. Law, § 427. A corporation composed of pri- vate individuals not restrained by law from conducting its busi- ness for private benefit, which does not report to and is not in- spected by the state, elects its own managers without the State's ap- 252 Municipal Cobpobations. §106 Corporations," which in a strict sense, only include in- corporated cities, towns, villages, hamlets, and boroughs. The distinction between tbe designation "municipal corporations," as here employed — which corporations proval, and by law owes the State no duty, is a private corporation within the provision of the Con- stitution of Illinois forhldding do- nations to private corporation. Washington Home v. Chicago, 157 111. 416, 29 L. R. A. 798, 41 N. E. 893. The corporation of "The Re- gents of the University," of Mary- land, held a private corporation. Regents of the University v. Wil- liams, 9 Gill. & John. 365, 397, et seq., 31 Am. Dec. 72. The corporation is public when "the whole interest and franchises are the exclusive property and domain of the government itself." Per Marshslll, C. J., in Dartmouth College v;. Woodward, 4 Wheat. (U. S.) 518. "The regents of the University of Nebraska," held a public cor- poration, "because its whole inter- ests and franchises are the ex- clusive property and domain of the government itself, and, there- fore it is in the strictest sense a public corporation." Regents, etc., V. McConnell, 5 Neb. 423, 427. State universities as public cor- porations. State v. Knowles, 16 Fla. 577; Weary v. Iowa State University, 42 Iowa 335; Louis- ville University v. Louisville, 15 B. Mon. (Ky.) 642; Head v. Cura- tors, etc., 47 Mo. 220; University V. Maultsby, 8 Ired. Ea. (N. C.) 257; Bracken v. Williams and Mary Coll., 1 Call (Va.) 161; Bracken v. Mary College, 3 Call (Va.) 573. Academy, held private corpora- tion. Cleveland v. Stewart, 3 6a. 283. Common or district schools, seminaries, academies, colleges, universities, etc., maintained at the public expense are generally held to be public corporations. Trustees v. Winston, 5 Stew, and Port. (Ala.) 17; Mobile School Comrs. V. Putman, 44 Ala. 506; Trustees v. Tatman. 13 111. 28. The distinction between public and private corporations may be better understood by consulting the extent of state and govern- mental control of technically pri- vate corporations, having in view some public enterprise in which the public interests are involved, as railroad, turnpike and canal corporations, grain elevators, ware- houses, news gathering and dis- tributing associations, etc. State ex rel. v. 'Associated Press, 159 Mo. 410, 60 S. W. 91, 51 L. R. A. 151; Inter-Ocean Pub. Co. v. As- sociated Press, 184 111. 438, 56 N. E. 822; Stone v. Wisconsin, 94 U. S. 181; Chicago, M. and St. P. R. R. V. Ackley, 94 U. S. 179; Lawrence v. Chicago & N. W. R. Co., 94 U. S. 164; Chicago, B. & Q. R. R. V. Iowa, 94 U. S. 155; Munn V. People, 94 U. S. 113, affirming, 69 111. 80. Touching a railroad company, CoQk says: "It seems clear that as regards its stockholders it is a private corporation, and as re- gards its duties towards the pub- lic it is a public corporation, and, '^lO? Municipal Coepoeation Defined. 253 possess legislative and administrative powers conferred for the purpose of enabling the inhabitants to conduct the local civil government — and other public corpora- tions, as those usually called quasi-corporations, is marked and is fully explained and illustrated in subse- quent sections. § 107. Municipal corporation defined. In the English law, tinder the Municipal Corporations Act, 1882, "municipal corporation" means "the body hence, it may well be called a 'quasi' public corporation. The term quasi public corporation may well be applied to steam railroads, street railways, telegraph, tele- phone, cable, gas, electric lights, subways or water works corpora- tions, and in fact to every other corporation which is authorized to exercise the power of emi- nent domain or to occupy the pub- lic streets." Cook, Corp. (6th Ed.), § 7. The Supreme Court of the United States said: "It cannot be disputed that a railroad is a public corporation and its busi- ness pertains to and greatly af- fects the public and that it is of a public nature. * * * Though the corporation was private its work was public as much as if it were to be constructed by the State." United States v. Trans Missouri Freight Assn., 166 U. S. 290, 321. "Railway companies are more than mere private corporations — they are in many respects and for many purposes quasi public bodies invested with large and peculiar franchises and privileges, and owing important duties, and under varied responsibilities to the public." Kelly v. Trustees, etc.. R. R.. 68 Ala. 489, 501. Reclamation districts, designed to make large bodies of land fit for cultivation by distributing water over them, are held to be public corporations. People v, LaRue, 67 Cal. 526, 8 Pac. 84; ' Hoke V. Perdue, 62 Cal. 545; Peo- ple V. Williams, 56 Cal. 647; Peo- ple V. Reclamation Dist., 53 Cal. 346; Dean v. Davis, 51 Cal. 406. So are irrigating districts, in- tended to render the land fit for use by removing the excess of water. Central Irrigation Dist. v. De Lappe, 79 Cal. 351, 21 Pac. 825. Quasi-corporation may be given merely for the purpose of classification, that is, corporate bodies, sole or aggregate, which only in a measure, or in part, fulfill the definition of a corpora- tion; e.g. in England, the Lord Chancellor, the Lord Chief Jus- tice, the treasurer for the time being of friendly societies, and the Chamberlain of London are quasi- corporations sole. Instances of e«asi-corporations aggregate in England are church wardens, church wardens and overseers, guardians of the poor, and boards of health. So corporations are sometimes divided into spiritual and temporal. 8 Laws of England (Halsbury), p. 304, note. I 254 Municipal Corporations. § 107 corporate constituted by tlie incorporation of the inhabi- tants of a borough."^' In England, as in this country, it is the inhabitants who are incorporated, and not the officers or the council or governing legislative body through whom they act.^" In American law a municipal corporation may be de- scribed to be a legal institution, or body politic and corporate, established by public law, or sovereign power, evidenced by a charter, with defined limits and a popula- tion, a corporate name and perpetual succession, prima- rily to regulate the local or internal affairs of the territory or district incorporated by officers selected, by the corporations, and secondarily, to share in the civil government of the state in the particular locality .^^ The characteristic feature beyond all others is the inherent right of local self-government. The condition of congested urban communities require broad delegation of administrative authority, since the greater part of their functions are purely local, and the governmental problems of such communities are peculiar to the lo- cality, and, in the main, concern only the inhabitants thereof, as distinguished from the people of the state at large. Therefore, these communities are constituted au- tonomous corporations, with designated privileges and powers, in order to provide protection and to supply the needs, conveniences and comforts of the inhabitants.'*^ 19. 45 and 46 Vict., ch. 50, v. Knoxville, 6 Baxt. (Tenn.) 166, § 7. 177; Herzo v. San Francisco, 33 20. Arnold's Law of Mun. Corp. Cal. 134, 145. (Sth Ed., London), p. 5. 22. "A municipal corporation The word "inhabitants" In a Is created mainly for the interest, charter has not in itself any defl- advantage and convenience of the nite legal meaning, but in each locality and its people." State v. case must be explained extrinsic- Down, 60 Kan. 788, 791, 57 Pac. ally, e.g., by evidence of usage, or 962; Beach v. Leahy, 11 Kan. 23, by reference to the context and 30; Board of Commissioners v. objects of the charter. lb.; Rex Mighels, 7 Ohio St. 109, 119. V. Mashiter, 6 Ad. and El. 153; "A municipal corporation is the Rex V. Davie, 6 Ad. and El. 374. legislative grant of local self- 21. East Tennessee University government to the inhabitants §107 Municipal, Corpoeation Defined. 255 Judge Sharswobd has, in substance, described a mu- nicipal corporation as a body politic and corporate, possessing a legal entity and name, a seal by which to act in solemn form, a capacity to contract and be con- tracted with, to sue and be sued, a persona standi in judicio, to hold and dispose of property, and thereby to acquire rights and incur liabilities, with power of per- petual succession, inhabitants and territory.^* Numerous descriptions and definitions of the municipal corporation appear in the notes.** within a certain designated ter- ritory, which is Itnown as tiie 'city,' 'town' or 'village,' and cor- porate powers granted are exer- cised by its inhabitants in its cor- porate name." State ex rel. v. McAllister, 38 W. Va. 485, 495. 18 S. B. 770. 24 L. R. A. 343. "This power of local self-govern- ment is the distinctive purpose and the distinguishing "feature of a municipal corporation proper." Dillon, Mun. Corp. (5th Ed.), § 32. 23. Philadelphia v. Fox, 64 Pa. St. 169, 180. 24. Municipal corporation de- fined. A municipal corporation ^s a body politic or corporate es- tablished by law to assist in the civil government of the state, with delegated authority to regulate and administer the local or in- ternal affairs of a city, town or district which Is Incorporated. Delaware. Downs v. Smyrna, 2 Pennew. Del. Rep. 132, 45 Atl. 717. Illinois. Wetherell v. Devine, 116 m. 631, 637, 6 N. E. 24. Kansas. State v. Lawrence, 79 Kan. 234, 100 Pac. 485; Beach v. Leahy, 11 Kan. 23, 30. Louisiana. Fischer Land 'and Improvement Co. v. Bordelon, 52 La. Ann. 429, 437, 27 So. 59. Nel)raska. Wahoo v. Reeder, 27 Neb. 770, 773, 43 N. W. 1145. Oregon. Shipley v. Hacheney, 34 Greg. 303, 306. 55 Pac. 971. Pennsylvania. Lehigh Water Company's Appeal, 102 Pa. St. 515, 517. South Carolina. Ancrum v. Camden, W. L. & J. Co., 82 S. C. 284, 64 S. E. 151. Tennessee. East Tenn. Univer- sity v. Knoxville, 65 Tenn. (6 Baxt.) 166, 171. Utah. Salt Lake City v. Wagno, 2 Utah 400, 403. Wyoming. Board of Comrs. v. Searight Cattle Co., 3 Wyo. 777, 799. 31 Pac. 268. A municipal corporation as stated in an early English case, is "the investing the people of a place with the local government thereof." Cuddon v. Eastwick, 1 Salk. 192, 193. The cases following adopt and apply: Delaware. Coyle v. Mclntire, 7 Houst. (Del.) Rep. 44, 93, 30 Atl. 728, 40 Am. St. Rep. 109. Michigan. People v. Hurlbut, 24 Mich. 44, 88. 256 Municipal Cobpobations. §107 The municipal corporation is not infrequently regarded Vew York. BrinckerhofE v. Board of Education, 37 How. Pr. 409, 514. Wisconsin. Attorney General v. Eau Claire, 37 Wis. 400, 436. Municipality defined. "In EngUsh and American law a mu- nicipality is any subordinate pub- lic authority created by the cen- tral government and vested with the legal rights of a corporation. The term applies to the local au- thorities in cities, villages, coun- ties, special authorities such aa school and park boards, and even to incorporated townships as in Massachusetts. In this sense, mu- nicipal administration would in- clude the whole field of local gov- ernment." Pairlie, Municipal Ad- ministration, Preface, p. 6. A municipality is "a corpora- tion created for governmental pur- poses, and having, to a large ex- tent, local powers of legislation and self-government." Memphis Trust Co. V. Levee Dlst., 69 Ark. 284, 286, 62 S. W. 902. A municipality Is defined to be "a city, a municipal corporation." Fitzgerald v. Walker, 55 Ark. 148, 156, 17 S. W. 702, quoting from Anderson's Law Diet., title "Mu- nicipality." "A town or city possessed of corporate privileges of local self- government; a community under municipal jurisdiction." In re Werner, 129 Cal. 567, 573, 62 Pac. Rep. 97, quoting from Century Diet, title "Municipality." Municipalities are legal entities, established for local governmental purposes. Waller v. Osban, 60 Fla. — . (1910), B2 So. 970. A municipal corporation is "a public corporation; a corporation created by government for polit- ical purposes, and having sub- ordinate legislative powers to be exercised for local purposes, such as a county, city, town or village." Root V. Erdelmyer, 1 Wils. (Ind.) 99, 106, quoting from BurriU's Law Diet, 2 Kent Com. 275. A municipal corporation is a governmental institution, design- ed to create a local government over a limited territory. Langley V. Augusta. 118 Ga. 590, 594, 45 S. E. 486. "A district legally created from a designated part of the state and organized to promote the conven- ience of the public at large is a municipal corporation." Acme Dairy Co.* v. Astoria, 49 Or. 520, 524, 90 Pac. 153. "A municipal corporation is an artificial person, created by char- ter being conferred upon an exist- ing aggregation of persons in- habiting a defined locality, grant- ing to the new entity powers and privileges which the inhabitants did not before possess, and impos- ing additional duties and liabili- ties. "The charter franchises are of two classes — ^those public or gov- ernmental, the exercise of which partake more of the character of a duty than of a privilege, and powers private in their nature, appropriately termed privileges or corporate franchises." 1 Andrews American Law, Sec. 397. "A municipal corporation is de- fined to be: 'A legal institution, formed by charter from sovereign §107 Municipal Coepoeation Defined. 257 as a subordinate branch of the government of the state,^** and therefore municipal administration as a part or 25. Municipal corporation as a branch of state government. Mayor, etc., v. Ray, 19 Wall. (U. S.) 468, 475; Bryant v. Holladay, 93 Cal. 241; 29 Pac. 54; Winblg- ler V. Los Angeles, 45 Cal. 36 ; San Francisco Co. v. Canavan, 42 Cal. 541; Payne v. Treadwell, 16 Cal. 220, 233. "Municipal corporations are created to aid the state govern- ment in the regulation and ad- ministration of local affairs." Per Waite, C. X, in Ottawa v. Carey, 108 U. S. 110, 121. "A municipal corporation is, so far as its purely municipal re- lations are concerned, simply an agency of the state for conduct- ing the affairs of government." Williams v. Eggleston, 170 U. S. 304, 310. power erecting a populous com- munity of prescribed area into a body politic and corporate, with corporate name and continuous succession, and for the purpose and with the authority of sub- ordinate self-government and im- provement and local administra- tion of affairs of state.' " An- crum V. Camden Water, etc., Co., 82 S. C. 284, 64 S. E. 151. Bouvier says that "A municipal corporation is a public corporation created by government for polit- ical purposes, and having sub- ordinate and local powers of leg- islation. An incorporation of per- sons, inhabitants of a particular place or connected with a particu- lar district, enabling them to con- 1 MiiQ.— 17 "A municipality is a mere political division of the state. It is a public corporation, having for its object the administration of a portion of the powers of govern- ment delegated to it for that pur- pose." Penick v. Foster, 129 Ga. 217, 58 S. E. 773, 12 L. R. A. (N. S.) 1159. "Municipal corporations are created by the state to assist, in some degree in the maintenance of the good order of the whole community, but, primarily, to ad- minister the local affairs of the city, town or district incorporat-, ed." Board of Directors v. Hous- ton, 71 111. 318, 322. "A subdivision of the state for the purpose of local self-govern- ment." State ex rel. v. Elliott, 158 Ind. 168, 172, 63 N. E. 222. duct its local civil government." 2 Bouv. Law Diet. 21, quoted with approval in Heller v. Stremmel, 52 Mo. 311. Other definitions. Dakota. Treadway v. Schnauber, 1 Dak. 236, 247-248. Iowa. Winspear v. Holman, 37 Iowa 542, 544; Curry v. Sioux City, 62 Iowa 102, 105, 17 N. W. 191. Kentucky. Covington v. Dist. of Highlands, 113 Ky. 612, 621, 68 S. W. 669. Judge Dillon defines a munic- ipal corporation "in its historical and strict sense to be the incor- poration, by the authority of the government, of the inhabitants of a particular district, and authoriz- ing them in their corporate capac- 258 Municipal Cobpobations. §107 brancli of state administration. This view is fully con- sidered in the chapter on legislative control of municipal corporations.^® "A municipality is a state agen- cy for governmental purposes." Lexington v. Thompson, 113 Ky. 540, 547, 24 Ky. L. Rep. 384. 68 S. W. 477. 57 L. R. A. 775, 101 Am. St. Rep. 361. "A body formed by the incorpo- ration of the Inhabitants of a par- ticular place or district, establish- ed to assist in the civil govern- ment of the state by the exercise of subordinate specified powers of legislation and regulation with respect to local and internal con- cerns." Reid V. Wiley, 46 N. J. L. 473, 474. "Municipal corporations in their public and political aspect are not only creatures of the state, but are parts of the machinery by which the state conducts its gov- ernmental affairs." State v. Law- Ity to exercise subordinate spec- ified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the dis- tinguishing feature of a munici- pal corporation." 1 Dillon, Mun. Corp. (5th Ed.), § 32. A municipal corporation being a body politic and corporate, its charter therefore falls within the definition of Lord Coke and other approved authors. People v. Mor- ris, 13 Wend. (N. Y.) 325, 334. "A public corporation is one that is created for political pur- poses with political powers to be exercised for purposes connected rence, 80 Kan. 707, 100 Pac. 485, quoting from Johnson v. San Diego, 109 Cal. 468, 42 Pac. 249, 30- L. R. A. 178. "Municipal corporations are created by the state for the public good. They exercise by delega^ tiori from the state a portion of the sovereign power. The princi- pal object of their creation is to act as administrative agencies for the state, and to provide for the police and local government of the difterent localities. They are charged with governmental au- thority, and civil, political and municipal duties are imposed upon them." Webb City & Carterville Waterworks Co. v. Carterville, 153 Mo. 128, 133, 54 S. W. 557. 26. Ch. 4. with the public good. "Public corporations are synony- mous with municipal or iK>liticaI corporations." Phillips v. Balti- more, 110 Md. 431, 72 Atl. 902, 905. "The conception of a number of human beings acting in concert for a common end, and thus form- ing a fictitious entity apart from its members and not limited by their lives, although apparently an abstruse one, has long been common. The familiar and very old conception of village communi- ties, clans, tribes, races and nations furnishes us with illustra- tions of the existence in human thought of the conception of per- § 108 What Municipal Cobpoeation Includes. 259 § 108. What included in the term "municipal corpora- tion." The word municipal, or municipalis, strictly applies only to what belongs to a free town or city, but frequently a more extensive meaning is attached to the word as used in our law. In speaking in general of the law of the state we use the term "municipal law" in contra- distinction to the law of nature and of nations. Cities by the Eoman law were called municipia. The municipium of that law was an independent city or free town, having the right of Roman citizenship, governed by its own laws as respected local affairs, but united by voluntary political ties to the republic as regarded gen- eral interest and sovereignty. Hence originally, the word municipal meant a self-governing or a free city or town, and our word is derived from this origin. In the early English law the term was commonly ap- plied to cities and incorporated towns or other distinct local communities or bodies having large rights of self- government."^ Subsequently its application became 27. Municipal Is used in En- (Rawles Revision), p. 459; Lid- glish, French, Spanish and Portu- dell's Rome, ch. 27, § 8. guese; municipale in Italian, and In the English law the term municipaUs, in Latin — of or be- municipality was early applied to longing to a citizen or free town. a city or town possessed of corpo- Century Diet, and Ency., tit. "Mu- rate privileges of local self-gov- nlcipal"; 2 Bouv. Law Diet, ernment; or to a community under sonified fictitious entities. The corporation may exist without a fixing of this idea upon a legal charter." The Origin of Munlcl- basis is the essence of the idea of pal Incorporation in England and incorporation — the legal recogni- in the United States by Amasa M. tion of the Immaterial entity, Eaton, 25 Reports American Bar composed of individual members Assn., p. 295 (1902). that die, but which continues on "The term 'municipal corpora- no twithstanding their death or tion' implies the organization of withdrawal. The charter, cliarta, a certain geographical district un- the paper, is the written legal der authority of law, and that evidence of the recognition of the it includes within its jurisdiction existence of such a body — un gros and control a certain geographical or un corps, whence our word, area." Short v. Gouger, Tex. Civ. corporation. It follows that a App. (1910), 130 S. W. 267. 260 Municipal Coepokations. §108 more extended, and at present it is used in tlie law in different connections with different shades of meaning. Usually the term municipal corporation embraces that class of public corporations which are created to admin- ister local civil government, and generally includes municipal jurisdiction. London claims the first place, as the greatest municipality and as the model on which the other large towns of the country were allow- ed or charged to adjust their usages. Stuhbs, Const. Hist, of Eng., § 486. There are two distinct and op- posite systems of administra- tion, the municipal or self-govern- ing and the centralizing or bureau- cratic. W. R. G-ray, Misc. Essays, 2nd Series, p. 48. "'Municipal' has been defined to be: of or pertaining to a town or city, or to its corporate or local government." Sessions v. State, 115 Ga. 18, 21, 41 S. B. 259; Standard Diet., tit. "Municipal;" Webster's International Diet., tit. "Municipal." "Of or pertaining to the local self-government or corporate gov- ernment of a city or town." Cen- tury Diet., tit. "Municipal." "Pertaining to a corporation or city; as municipal rights; munici- pal oflicers." Webster's Diet., tit. "Municipal." "Pertaining to a city or a com- munity within a state, possessing rights of self-government. Per- taining to a free state." Ander- son's Law, Diet, tit. "Municipal." "Strictly, this word applies only to what belongs to a city. It is used in this sense in the terms municipal court, municipal ordi- nance, municipal officer." "It has two meanings: (1) re- lating to cities, towns and vil- lages: (2) relating to the state or nation." Bouvier's Law Diet., tit. "Municipal;" Powder River Cat- tle Co. V. Board of County Com- missioners, 3 W^yo. 597, 608; New English Diet. (Oxford), tit. "Mu- nicipal." "We get our term 'municipal corporation' from the words 'mu- niceps,' or 'municipitis,' meaning, I may say, without professing to be strictly accurate, 'the right of a freeman — the right to vote.' " State ex rel. v. Denny, 118 Ind. 382, 402, 21 N. E. 252. Municipal has been defined to be that which belongs to a corpo- ration or a city, and to include the rules or laws by which a particu- lar district, community or nation is governed. It may also mean local, particular, independent. Black's Law Diet. (2nd Ed.), tit. "Municipal"; Cook v, Portland, 20 Oreg. 580, 583, 27 Pac. 263, 13 L. R. A. 533. The word does not apply solely to incorporated towns and cities; it is equally applicable to incor- porated bodies organized for the accomplishment of great and im- portant public purposes, which, for the sake of unity and suc- cessful administration, need a body corporate, and special laws for its management. Horton v. Mobile School Com'rs, 43 Ala. 598, 607; State ex rel. v. Board of Levee Com'rs, 109 La. 403, 437, 33 So. 385. § 108 What Municipal Cobporation Includes. 261 boroughs, cities, incorporated towns and villages and sometimes, other forms of public corporations.^^ Statutes do not define the terms municipal corpora- tions, towns, villages or cities. But in most instances the words are intended in their ordinary acceptation, as meaning an aggregation of houses and inhabitants, more or less compact with rights of local self-government.^^ 28. 2 Abb. Law Diet., p. 139; Elliott, Mun. Corp. (2n(i Ed.), Sec. 3. "Municipal" may refer to either a town or city. Sesslona V. State, 115 Ga. 18, 21, 41 S. B. 259. "The generally accepted defini- tion of a municipal corporation would only Include organized cities and towns, and like organi- zations, with political and legis- lative powers for the local, civil government and police regulations of the inhabitants of the particu- lar district included in the boundaries of the corporation." Heller v. Stremmel, 52 Mo. 309, 312. A borough in Pennyslvania is held to be a public municipal corporation. Ridley Pack Bor- ough V. Citizens E. L. & P. Co., 7 Del. Co. Rep. 395, 9 Pa. Super. Ct. 615. 29. Territory ©x rel. v. Stew- ard, 1 Wash. 98, 29 Am. & Eng. Corp. Cas. 22, 26! Particular body corporate, held not a municipal corporation. State V. Douglass Co. Comrs., 47 Neb. 428, 66 N. W. 434. IVIunicipal corporations as em- bracing cities, towns and vil- lages. In its more general sense the phrase "municipal corpor- ation" may include both towns and counties, and other public corporations created by govern- ment for political purposes. In its more common and limited sig- nification, it embraces only in- corporated villages, towns and cities. Dunn v. Court of County Revenues, 85 Ala. 144, 146, 4 So. 661. While the words "town" and "city" are not synonymous, the word "town," in the language both of courts and statutes, is very frequently used in a generic sense, including villages, towns and cities. Smithville v. Dispen- sary Comrs., 125 Ga. 559, 54 S. B. 539. A "town" is a municipal cor- poration. Hempstead v. Law- rence, 138 N. Y. App. Div. 473, 122 N. Y. Supp. 1037. City defined. "There are, in fact, three elements which must exist to form a city and all of these must be represented in the defini- tion: (1) the geographical fact of a definite local area on which buildings are for the most part compactly erected; (2) the socio- logical fact of a large community of people densely settled on the given area; and (3) the political fact of an organized local au- thority or authorities controlling the public affairs of the communi- ty. Combining these elements, a 262 MuN];CIPAIi COEPOEATIONS. ^luy The words, municipal corporations, have been held to include cities and villages and any other municipal cor- poration strictly so called.^" Towns are often called in common parlance, and some- times unguardedly in statutes, municipal corporations in connection with counties, cities and villages; but ordi- narily when so called it is in the sense of mere corpora- tions, or gMOsi-corporations or of corporations sub-modo only, and not in the sense of municipal corporations proper. Thus in Wisconsin, the words "municipal cor- porations," are held not to include towns, school districts and other gwasi-corporations.*^ In that state towns or- ganized for the purpose of township government are not municipal corporations, but only quasi-Gor-poTations, or corporations sub-modo, although declared by statute to be bodies corporate, with power to purchase and hold city may be defined to be a pop- ulous community, inhabiting a definite, compactly built locality, and having an organized public authority." Fairlie, Municipal Administration, Preface, p. VI. A city in tlie eariy Englisli law is a corporate borough that hath had or at present hath a bishop, for if the bishopric is dissolved, yet the city remaineth. To have suburbs proveth it to be a city. Some cities are also counties. Wood's Institutes, 2 to 4, written in 1772. See 1 Bl. Com. 115. IVIunicipal corporation includes cities, etc. The supreme court of Ohio declares that the word city imports a municipal corpora- tion. Mitchell V. Franklin Coun- ty, 25 O. St. 143. The supreme court of Iowa says that the word "municipal," strict- ly employed, applies to cities only, but concedes that the word usu- ally has a much more extended meaning, and hence when applied to corporation the words "politi- cal," "municipal" and "public" are used interchangeably. Curry v. Sioux City, 62 la. 102, 104; Winspear v. Dist. Twp. of Hel- man, 37 la. 542, 544. Include School Districts, when, § 110 post. The word "city," as used in the constitution of California, is held to include towns Const. Cal., Art. XI, Sec. 19; People v. Stephens, 62 Cal. 209; and also to include the consolidated city and county government of San Francisco. Morgan v. Menzies, 60 Cal. 341; Desmond v. Dunn, 55 Cal. 242. 30. Where the term is used in a statute affecting the whole state It may include cities. Chari- ty Commissioners v. McGurrin, G Daly (N. Y.) 349. 31i Eaton v. Manitowoc Coun- ty, 44 Wis. 489. §108 Towns as Munioipai, Cokpokations. 263 real estate and convey and dispose of the same; to ap- point agents and attorneys; to sue and be sued; to make contracts and do many things natural persons can do, but without a common seal.^^ Thus it appears that "town," as used in statutes, is a word of varjdng signification. It is often commonly employed to designate places incorporated for local gov- ernment under special acts, but not clothed with all the powers usually conferred on cities. It is so used in New Jersey. But "an act to authorize towns to levy taxes for the payment of legal corporate obligations and debts heretofore incurred," was held not to apply to town- ships.** 32. Norton v. Peck, 3 Wis. 714, 721. When municipal corporation is borough or town under particular law. Tuttle v. Washington (N. J. Sup., 1902), 52 Atl. Rep. 1101. Town — township. Originally a town meant an enclosure; a collection of houses enclosed by a hedge, palisade or wall for safe- ty; a walled or fortified place. The word comes from the Anglo- Saxon "tun," an enclosure signi- fying a collection of houses en- closed by a wall. See Anderson's Law Diet., and Century Diet, and Encyc, title "Town." In Anglo-Saxon times the area of land occupied by a community inhabiting a fenced homestead, a farm or a village surrounded by an enclosure, was known as a township. Century Diet, and Encyc, title "Township." In this country a township is a territorial district, subordinate to a county into which counties in many of the states are divided, the inhabitants of which are in- vested with political and adminis- trative powers for regulating their own minor local affairs, such as repairing roads, maintain- ing schools and providing for the poor. In . the newer states in which the subdivisions were laid off by government survey, the township contains thirty-six square miles. The subdivisions of California counties are called judicial town- ships; in "Wisconsin they are more often called towns, while those in Maine and New Hampshire are corporations. Where the context requires it, town as used In a statute will be construed to embrace a city, ward or district, but where the statute means otherwise it will not. State ex rel. Sherman v. Mil- waukee, 20 Wis. 87, overruling Crane v. Fond du Lac, 16 Wis. 196; Watertown v. Cady, 20 Wis. 501; Flinn v. State, 24 Ihd. 286; State v. Craig, 132 Ind. 54; Ode- eaard v. Albert Lea, 33 Minn. 351, 23 N. W. 526. 33. Banta v. Richards, 42 N. J. L. 497. 264 MijNICIPAIi COEPOKATIONS. §108 A village means an assemblage of houses less than a town or city but nevertheless urban or semi-urban in character. In statutes the word is generally used in its ordinary and popular sense.^* When incorporated, vil- lages are regarded as public corporations, and partake of the nature of municipal corporations in their inci- dents.*^ The term "corporation" does not always embrace mu- nicipal corporation,** although it has been so held fre- quently as used in particular laws.*'' "A town is a collection of peo* pie, and it may be either an In- corporated or an unincorporated town." Sessions v. State, 115 Ga. 18, 21, 41 S. E. 259. 34. State ex rel. v. Minnetonka, 57 Minn. 526, 25 L. R. A. 755, 59 N. W. 972. A village organized under gen- eral incorporation laws^ held to be a "town" within the meaning of a law relative to the sale of mu- nicipal bonds. Brown v. Grange- ville, 8 Idaho 784, 71 Pac. 151. Incorporated village in particu- lar case. Broking v. Van Valen, 56 N. J. L. 85, 27 Atl. 1070. 35. Camden v. Camden Village Corp., 77 Me. 530, 1 Atl. 689. Borough is the word employed in the charter of Greater New York to designate the districts into which the corporation is divided. Borough distinguished from town or village. A borough is so called because it sendeth up bur- gesses to parliament and this maketh the difference between a village or town and a borough. Some boroughs are corporate and some not corporate. In old time the towns that are now called cities, or cities and counties, were boroughs, and the ancient bor- oughs were first of all towns. Wood's Institutes, 2 to 4 (1772) Town includes boroughs and cities. Under the name town or village, boroughs and cities are contained, for every borough or city is a town, though every town Is not a borough or city. Wood's Institutes, 2 to 4 (1722). A town was a precinct ancient- ly containing ten families, upon which account they are sometimes called "tithings." It can not be a town in law unless it hath or had a church, celebration of divine service, sacraments and burial. Wood's Institutes, 2 to 4 (1722). 36. Ex parte Pritz, 9 la. 30; State v. Narragansett, 16 R. I. 424, 24 Am. & Bng. Corp. Cas. 131; State v. Wilson, 12 Lea (Tenn.) 246. 37. Constitutional provision re- quiring a two thirds vote for pas- sage of bill creating, continuing, altering or renewing any body politic and corporate includes municipal corporations. Purdy V. People. 4 Hill (N. Y.) 384, overruling 2 Hill (N. Y.) 31. § 109 State as a Municipal Coepokation. 265 Persons. Municipal corporations are sometimes held to be included in the term "person" as used in certain statutes.^* From this consideration it is thus manifest that what is embraced in the term municipal corporation largely depends upon the manner in which it is used and the proper construction to be given to it in the particular constitution or law where employed, and the course of legislation and judicial decisions, together with the gen- eral policy of the particular state. Usually words as employed in public laws are received in their strict con- stitutional sense unless the intention in the given case was to invest them with a more extended signification. § 109. The state as a municipal corporation. The state, — while a public g-wasi-corporation differing from other public gjMasi-corporations, because it is a sovereign which creates corporations, and by whose permission alone corporations are allowed to exist, and differing also because it is voluntary, — strictly speaking, is not a municipal corporation in the limited sense in 38. San Francisco Gas Co. v. corporations. Morgan v. Long Brickwedel, 62 Cal. 641, 644. Island City, 101 N. Y. 439, 5 N. Persons. Are "persons" within K. 80. the meaning of a statute concern- "Person" Is not, when. Mobile ing arbitration. Springfield v. v. Rowland, 26 Ala. 498; Dollman Walker, 42 Ohio St. 543, 547. v. Moore, 70 Miss. 267, 12 So. 23; "Persons" as used in statutes, HoUis v. Davis, 56 N. H. 83; often include for civil purposes, Atlanta v. Smith, 99 Ga. 462, 27 corporations as well as natural S. E. 696. persons. Hence, they may be "Private person" as relates to summoned as garnishees. Chesa- offense does not include. Coats peake, etc., R. R. Co. v. Paine, v. People, 22 N. Y. 245. 29 Graft. (Va.) 502, 65 Am. Dec. When "person." Pasadena v. 254; Baltimore & Ohio R. R. Co. Steimson, 91 Cal. 238, 27 Pac. V. Gallahue's Admr., 12 Graft. 604; St. Louis v. Rogers, 7 Mo. (Va.) 655, 65 Am. Dec. 254; Buff- 19; School Directors v. Goerges, ham v. Racine, 26 Wis. 460. 50 Mo. 196; Raines v. Oshkosh, 14 Provisions of Code of procedure Wis. 374; In re Canadian Pac. R. referring to "foreign and domestic R., 25 Ont. App. 75; People v. Oak- corporations," apply to municipal land, 92 Cal. 611, 28 Pac. 807. 266 Municipal Cobpobaxions. § 110 which the term is generally used.*" Thus, in Iowa, it is held that the words of a statute of limitations, namely, ' ' bodies corporate and politic, ' ' do not include the state. However, statutes of limitations do not apply to the state unless expressly so stated in them, following the common law maxim, nullium tempus occiirrit regi.*^ In an early Kentucky case it' was declared that even the United States and each separate state and every county in each state are gtjasi-corporations.'*^ So it was asserted early in New York, "that a state is a corpora- tion cannot be doubted. It is a legal being, capable of transacting some kinds of business like a natural person, and such a being is a corporation."*^ In another case it was held that the several states of the Union may sue in their corporate names in the courts of New York.** § 110. Corporation for "municipal, purposes." The words "municipal purposes" are not words of definite technical import. Thus in some states the leg- islature may create special taxation districts for "mu- 40. The state as a municipal the word "corporation" did not In- corporation. Tice V. Atlantic elude a state. Georgia v. Atkins, Const. Co., 52 N. Y. App. Div, 284, 35 Ga. 315. 287, 65 N. T. Supp. 79. 41. Des Moines County v. Har- In a Georgia case the question ker, 34 Iowa 84. was whether or not the collector 42. Louisville v. Gommon- ot internal revenue was author- wealth, 1 Duv. (Ky.) 295, 85 Am. Ized to collect revenue from the Dec. 624. state of Georgia on a railroad 43. Indiana v. Woram, 6 Hill, owned and operated by the State (N. Y.) 33, 38. under an Act of Congress declar- 44. Relying on Delafleld v. ing that "every person, firm, com- State of Illinois, 2 Hill. (N. Y.) pany or corporation owning or 159. possessing, or having the care, or A state is entitled, as a corpo- management of any railroad," ration to institute an action, etc., "engaged or employed in the Hines v. State of N. C, .10 business of transporting passen- Smedes and M. 529, 536; State v, gers," etc., "shall be subject to and Delesdenier, 7 Tex. 76. pay a duty," etc. It was held that ^110 COBPOBATIONS FOR "MxjNICIPAI, PuKPOSBS." 867 nicipal purposes," as a park district,*' sanitary dis- trict,** drainage district,*'' irrigation district, etc.** The Congress under the Federal constitution has con- stituted the District of Columbia "a body corporate for municipal purposes."** It has been held that a corporation for municipal purposes must be connected with the municipal corpora- tion itself and be instituted for the purpose of promoting some of the objects of the municipality. Therefore, a park district established without the limits of a city is not a corporation for municipal purposes. In this crse 45. West Chicago Park Com. v. Chicago, 152 111. 392, 38 N. E. Rep. 697; State ex rel. v. Salomon, 51 111. 37; State ex rel. v Henne- pin County District Court, 33 Minn. 235, 7 Am. and Eng. Corp. Cas. 206. 46. People v. Nelson, 133 111. 565, 579, 27 N. B. 217. Sanitary District of Chicago, held to be a muiiicipal corpo- ration. Reddick v. People, 82 111. App. 85; People ex rel. v. Oak- land, 123 Cal. 598, 56 Pac. 445. 47. State ex rel. v. Chariton Drainage Dist., 192 Mo. 517, 90 S. W. 722; Mound City Land & Stock Co. V. Miller, 170 Mo. 253, 258, 7Q S. W. 721; Morrison v. Morey, 146 Mo. 560, 48 S. W. 629; Nauman V. Big Tarkio D. D., 113 Mo. App. 575, 87 S. W. 1195. Levee district is not. Memphis Trust Co. V. St. Francis Levee Dist., 69 Ark. 284, 62 S. W. 902. 48. California. Municipal cor- porations that may be created un- der the constitution of California are not limited to cities and towns, but the legislature may by general law classify and provide for as many cities and municipal corporations as. In its judgment, are demanded by the welfare of the state and commit to .each class such powers only as are pe^ culiarly appropriate thereto. Un- der the general laws of California irrigation districts may be incor- porated which may include an in- corporated town. Such districts are not included in the term "county, city or town," but are "other public municipal corpo- rations" — such being in existence when the constitution was adopt- ed. In re Bonds Madera Irriga- tion District, 92 Cal. 296, 14 L. R. A. 755. In California it has been held that a county is not a corporation for municipal purposes, within the meaning of the constitutional provision forbidding the creation of a corporation for municipal purposes by special act. People V. McFadden, 81 Cal. 489, 29 Am. & Eng. Corp. Cas. 37, 22 Pac. 851. 49. Stontenhurg v. Hennick, 129 U. S. 141, 147; Barnes v. Dis- trict of Columbia, 91 U. S. 544. 268 Municipal Coepoeations. § 110 it was said that "a corporation for municipal purposes is either a municipality, such as a city or town, created , expressly for local self-government, with delegated leg- islative powers; or it may be a subdivision of the state for governmental purposes, such as a county, a school or road district, etc. * * * The phrase, 'municipal purposes,' was intended to embrace some of the func- tions of government, local or gen^^ral; and no corporation, not exclusively designed for this end can be properly denominated a corporation for municipal purposes."^" A corporation created to carry on a public school and raise funds for its support,^i and a board of commis- sioners, to fill up certain ponds, within a city,^^ have been held to be a corporation for municipal purposes. So a corporation composed of the inhabitants of the territory situated around the mouth of a public naviga- ble river which is charged with the duty of maintaining therein a ship channel of sufficient width, and empowered to levy taxes to raise the necessary funds, is created for municipal purposes, within the constitutional provision of Oregon, permitting the creation of such corporations by special laws.^' But in Michigan it is held that a local corporation created to supply a city with water and to establish and control a fire department, although both functions may be regarded as municipal, is in no sense a municipal 50. It seems the court held Under statute as to taxation that the state constitution used school held not to he a corpora- the term -"municipal corpora- tion for "Municipal purposes." tions" and "corporations tor mu- Root v. Erdelmeyer, 37 Ind. 225, nicipal purposes" interchangeahly, 227, 1 Nat. Bk. Cas, 432. as expressing synonymous ideas. 52. Shields v. St. Louis, 62 Mo. State ex rel. v. Leffingwell, 54 247. Mo. 458, 475, 476. 53. Cook v. Port of Portland, • Compare State ex rel. v. Henni- 20 Oregon 580, 13 L. R. A. 533, pin County District Court, 33 27 Pac. 263. Minn. 235, 7 Am. & Eng. Corp. Compare Low v. Marysville, 5 Cas. 206. Cal. 214; San Francisco v. Spring 51. Horton v. Mohile, 43 Ala. Valley Water Works, 48 Cal. 49?. 598, 607. <^ 111 Municipal, Cokpokations Distinguished. 269 corporation within the legal meaning of that term. How- ever it seems that the settled law of that state is, there can be no municipal corporation that is not the direct representative of the people of the particular locality.^* Sanitary districts do not possess police powers properly belonging to cities and municipal bodies exer- cising local governmental functions, although in the nature of public corporations they are not municipal cor- porations in the proper sense of that term. All municipal corporations are public corporations, but the converse does not follow that all public corporations are municipal corporations.^^ The words, municipal purposes, as used in the consti- tution of Nevada authorizing the legislature to establish courts for "municipal purposes only" have been held to mean such matters as relate to the affairs of incor- porated cities and towns, where alone they are authorized to be established.^® The meaning of the term municipal purpose is further considered in appropriate places through this work.*'' § 111. Municipal corporations distinguished from quasi- corporations. " Quasi-coTTporations" is a phrase used to designate bodies which possess a limited niynber of corporate pow- ers and which are low down in the scale or grade of corporate existence.*''^ The phrase is applied often to a body which exercises certain functions of a corporate character, but which has not been created a corporation formally by any statute.** 54. O'Leary v. Fire & Water 57. See Index. Board, 79 Mich. 281, 284, 44 N. 57a. Kennedy v. County of W. 608, 7 L. R. A. 170; Allor v. Queens, 47 N. Y. App. Div. 250, Auditors, 43 Mich. 76, 4 N. W. 82; 254, 62 N. Y. Supp. 276. Butler V. Detroit, 43 Mich. 552, See 8 The Laws of England 5 N. W. 520. (Halsbury), p. 304, note. 55. In re Werner, 129 Cal. 567, 58. School District No. 56 v. 572, 62 Pac. 97. ■ St. Joseph, F. and M. Ins. Co., 56. Meager v. Storey County, 103 U. S. 707, 708, 26 L. Ed. 601. 5 Nev. 244. 270 Municipal Coepobations. § 111 For example, counties possess only a low order of cor- porate existence, and for this reason they are usually designated gMasi-corporations.*** So, railroad corpora- tions are sometimes termed quasi-cor-poTations, but they are not called gjMasi-municipal corporations.®" Counties, townships or hundreds, parishes, boards of education or school districts, drainage companies, road, levee and sanitary districts, overseers or trustees of the poor, township supervisors, unincorporated towns and villages and bodies of like character are not properly, in accordance with the accurate use of the term, munici- pal corporations; however, for the purposes of general designation, it is quite common to use that term in a sense including such gwasi-corporations, and oftentimes to dis- tinguish public or political corporations and their func- tions from those which would be termed private. Hence such expression, as "municipal corporation — a city, county or town,"®^ and "a county, or any other mu- nicipal corporation."®^ 59. Scates v. King, 110 111. a county for governmental pur- 456, 466. poses, and cannot sue or be sued. See § 112 post. Township v. Munch, 52 Iowa 132. 60. In re Werner, 129 Cal. In Michigan each township is a 667, 572, 62 Pac. 97. separate municipality whose of- 61. Harrington v. Plainview, fleers are selected by town resi; 27 Minn. 224, 229. dents and who are themselves 62. Blue Earth County v. St. residents. In providing for the Paul & S. C. R. R., 28 Minn. 503, organization and Incorporation of 507. townships, "the Constitution dealt Townships are subdivisions of with them as recognized and a county created by law. In ancient municipal bodies, the some states they have officers substantial character of which elected by the inhabitants to was Intended to be perpetuated." transact their public business, Per Campbell, J., in Robertson v. while in others the qualified elect- Baxter, 57 Mich. 127, 129, 23 N. ors meet at stated or special times W. 711. and vote on matters concerning In Pennsylvania, townships are the township. liable for improper maintenance Under the Iowa statute, civil of highways. McCormlck v. townships are not corporations Washington Tp., 112 Pa. St. 185, but merely legal subdivisions of 4 Atl. 164. § 111 Qtjasi-Coepobations. 271 In gwasi-corporations the inhabitants are invested with certain public powers without their consent, as explained in the paragraph relating to counties,*^ and are merely auxiliaries of the state.^* Such public corporations have been held to include counties,*^, townships,^® unincorpor- ated towns and villages,, parishes, school districts,®^ over- seers or trustees of the poor,^* commissioners created by legislative act to lay out and maintain a suburban park;*^ a levee district organized to construct work for prevent- ing portions of the territory from overflow and invested with power to issue bonds, levy and collect assessments, construct and repair highways, open canals, and the like; '"' a corporation constituted for the purpose of im- proving the navigation of a river with power to take toll, since such power is governmental, the river being a public highway; ''^ a fire engine company ,^2 and a san- itary districts* A corporation, created by legislative act, consisting of an association of persons for the encouragement and promotion of agricultural pursuits embracing a considerable district with certain defined powers, includ- ing power to elect officers and manage the affairs of the district under specified police regulations, is not, 63. § 112, post. Y.) 407; Governor v. Grldley, 1 64. Carpenter v. People. 8 Walk (Miss.) 328. Colo. 116, 125, 126. 69. Andrews v. People, 83 111.. 65. § 112, post. 529; Andrews v. People, 84 111,, 66. Mueller v. Cavour, 107 Wis. 28. 599, 83 N. W. 944. 70. Dean v. Davis, 51 Cal. 406; 67. North Hempstead v. Hemp- chiot County Levee Inspectoi's v. stead, 2 Wend. (N. Y.) 109; Crittenden, 94 Fed. 613, 36 C. C. Riddle v. Proprietors of Xxjcks, 7 a. 418. Mass. 187; School District in ,j^ Bennett B. Imp. Co.'s Ap- Rumford v. Wood, 13 Mass. 352; pgg^,^ gg ^^ st.'242. Damon, v. Granhy. 2 Pick. ^^^^ ^ ^^^^ Greenwich (Mass.) 352; Mower v. J^eicester, 12 r i 202 9 Mass. 237;" Adams v. Wiscasset °- ' " ' „ , .„ ^,, Bank, 1 Me. 363. 73. Reddick v. People, 82 I 1. 68. Overseers of the Poor of App. 85; People ex rel. v. Oak- Boston V. Sears, 22 Pick. (Mass.) land, 123 Cal. 598. 122; Rouse v. Moore, 18 Johns (N. 272 Municipal Cobpoeations. §112 technieally a municipal corporation, though possessing many attributes of one, but it is a public corporation^* It has been said that a supervisor of a town is, sub modo, a sole corporation^" Boards of public works, of health,''^ water commis- sioners,'''' and agencies to control fire departments,''* are usually (though not always) organs of the municipal gov- ernment, and do not exist as distinct corporations^^ The difference between g'wasi-corporations and munici- pal corporations proper further appears in considering liability for torts.*" § 112. How municipal corporations differ from counties. In a leading Ohio case, the doctrine of which is gen- erally followed, the distinction between a municipal 74. Canebrake Agricultural Dls- trlct-Dlllard v. Webb, 55 Ala. 468, 473. 75. Jansen v. Ostfander, 1 Cow (N. Y.) 670, 684. Sole corporations are common in England, but a corporation composed of a single person seems to be passing out of the American law. 1 Thompson, Corp., Sec. 8; 8 The Laws of England (Halsbury), tit. Corpo- rations, par. 690. The Roman lawyers had no no- tion of a , sole corporation, their maxim being tres faciunt col- legium. 76. Gardner v. Board of Health of N. Y., 10 N. Y. 409. 77. Appleton v. Water Com- missioners. 2 Hill (N. Y.) 432. 78. O'Leary v. Fire and Water Board, 79 Mich.^ 281, 284, 7 L. R. A. 170; Allor v. Auditors, 43 Mich. 76, 4 N. W. 82; Butler v. Detroit, 43 Mich. 552, 5 N. W. 520, 79. In considering the legal character of the General Assem- bly of the Presbyterian Church, and in holding that it was not a gtjosi-corporation, Gibson, C. J.. observed : "A gnosi-corporatioa has capacity to sue and be sued as an artificial person which the assembly has not. It is also es- tablished by law, which the as- sembly is not. Neither is the as- sembly a particular order or rank In the corporation , though the latter was created for its conven- ience, — such for instance, as the shareholders of a bank or joint stock company, who are an inte- gral part of the body. It is a segre- gated association, which, though it is the productive organ of cor- porate succession, it is not Itself a member of the body, and in that respect it is anomalous." Commonwealth v. Green, 4 Whart. (Pa.) 531, 598; Ernst v. Bartle, 1 Johns Cas. 319; White V. Browell, 4 Abb. Prac, N. S. (N. y.), 162. 80. Ch. 46. § 112 Counties as Municipai, Coepoeations. 273 corporation proper and a county is thus clearly stated: "Municipal corporations proper are called into exist- ence, either at the direct solicitation or by the free consent of the people who compose them. Counties are local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The former organization is asked for, at least assented to by the people it em- braces; the latter is superimposed by a sovereign and paramount authority. A municipal corporation proper is created mainly for the interest, advantage and con- venience of the locality and its people. A county organ- ization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive ref- erence to the general policy of the states and are, in fact, but a branch of the general administration of that policy. "^^ 81. Hamilton County v. Mlgh- Commissioners of Chowan, 90 N. els, 7 Ohio St. 109, 118, 119. C. 437, 438. Counties are essentially state The distinction between munlc- agencies. Madden v. Lancaster ipal corporations proper and County, 65 Fed. 188, 191, 12 C. C. gwasi-corporations, as counties, Is A. 566; State v. Downs, 60 Kan. explained by Judge Dillon In 788. Soper v. Henry County, 26 Iowa County government explained 264, 267, et seq. by Dr. Fairlie, Local Govern- "The powers to be exercised un- ment in Counties, Towns and Vil- der a county government are con- lages. Chs. IV to VII, pp. 57 to ferred by the legislature Irre- 135. spective of the will of the Inhabl- County as a quasi-municipal tants of the county, whereas the corporation. The general pur- inhabitants of a city are author- pose of counties and cqunty gov- ized to determine whether they ernment is stated in White v. will accept the corporate powers 1 McQ.— 18 274 Municipal Coepokations. §112 A county has corporate characteristics, but it is not a municipal corporation though often so called. AH the offered them to be exercised by offices of their own selection." Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R A. 620, quoting and approving Hamilton Court Comrs. V. Mighels, 7 Ohio St. 109. Under the constitution of Cali- fornia, it was held that an act of the legislature purporting to pro- vide a municipal government for San Francisco could have no ef- fect except with the consent of the majority of the electors of the city. While it Is usual in this coun- try for the inhabitants of the municipal corporation proper to give their consent to incorpo- ration, the rule has been declared that unless restrained by the con- stitution, where the corporation is organized under a special act, the state may through its legis- lature, incorporate a place and the inhabitants thereof against their express iwish or without their consent. Paterson v. bo- ciety, etc., 24 N. J. L. 385; State V. Babcocli, 25 Neb. 709; State v. Curran, 12 Ark. 321; People v. Morris, 13 Wend. (N. Y.) 335. The words "city" and "town" , are used in different senses in constitutions and statutes. Cities and towns are different from counties, having powers, functions, duties and liabilities conferred by charter, although it is true that they are in a restrict- ed sense, governmental agencies. Wittkowsky v. Board of Comrs., 150 N. C. 90, 63 S. E. 275. County as municipal corpo- ration. Curry v. Dist. Tp. of .Sioux City, 62 Iowa 102; Her- man V. Freeholders, 73 N. J. Eq. 415, 75 Atl. 1101, affirming, 64 Atl.^ 742. As to creation and functions of county in England and in Con- necticut, see Ward v. Hartford County, 12 Conn. 404, 406, et seq. Cities are usually in counties, but the city of St. Louis, Mis- souri, is an independent munici- pality, having no county govern- ment, but acts as the agent of. the state, in certain matters as "if it were a county." Const. Mo., 1875, Art. IX, Sections 18 to 25. The "City of St. Louis" is not a county in the sense in which that tjrm is used in the consti- tution to describe the normal county of the state. It may be a county so far as to keep up a relation as such to the rest of the state. State, Beach v. Finn, 4 Mo. App. 347. See § 326 post. The county and city of San Francisco have been consolidated into one municipal government under the name of "The County and City of San Francisco." See § 337 post. "It Is not possible to make a harmonious construction of the terms 'county,' 'city,' and 'city and county' as they are used in the constitution. The term 'coun- ty' is sometimes used therein as a geographical subdivision of the state; sometimes as a polit- ical division for the exerclst of governmental functions, and In § 112 Counties as Municipal Coepokations. 275 powers with which the county is entrusted are powers of the state, and the duties with which they are charged are the duties of the state.^^ the latter use It Is sometimes em- ployed as the equivalent of 'city and county,' and sometimes as d'stlnguished therefrom; and the term 'city and county' is some- times used as the equivalent of 'city.' Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620. The city and county of San Francisco is recognized by the constitution of California as hav- ing the attributes of both a city and county and also as having at- tributes distinguishing it from either. Geographically, It is one of the lega' subdivisions of the state and in that respect is recognized by the constitution as one of the counties of the state. Politically, it is regarded In that instrument as a municipal corpo- ration. Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620. It is regarded as settled by the supreme court of California that "The city and county of San Francisco" is a municipal corpo- ration and in matters of govern- ment is to be regarded as a city. Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87; but the territory over which that government is exercised is at the same time a county; and for those purposes for which county offices exercise authority not derived from the charter and disconnected with the municipal government, its of- ficers are properly termed "coun- ty officers." In California it has been held that a county is not a corporation for municipal purposes within the meaning of that term as used in the constitution. People v. Mc- Fadden, 81 Cal. 489, 29 Am. & Bng. Corp. Cas. 37, 22 Pac. 851. The constitution of California which provides that "city and county governments may be merged and consolidated into one municipal government, with one set of offices, and may incorpo- rate under general laws providing for the incorporation and organi- zation of corporations for munici- pal purposes," is held to imply that such political body Is a mu- nicipal, and not a county, gov- ernment. Kahn y. Sutro, 114 Cal. 317, 33 L. A. A. 620, 46 Pac. 87. The city of Philadelphia has been expanded so as to embrace the total territory of the county of Philadelphia, and its powers as a city are exercised and have effect within the whole county and over all the inhabitants thereof. So far as concerns rev- enue, finances and taxation the powers and liabilities of the county have been transferred to the consolidated city. Philadel- phia V. Commonwealth, 62 Pa. St. 451, 454, 456. 82. Askew v. Hale County, 54 Ala. 639, 641, 25 Am. Rep. 730; Kahn v. Sutro, 114 Cal. 317, 46 Pac. 87; People v. McFadden, 81 Cal. 489, 22 Pac. 851; Desmond v. Dunn, 55 Cal. 242; Riddle v. Pro- prietors, etc., 7 Mass. 169, 187, 5 Am. Dec. 35; Madden v. Lancaster County, 65 Fed. 188, 191. 276 Municipal Cobpobations. §112 "A municipal corporation," says the Supreme Court of Pennsylvania, "is a government, possessing powers of legislation, and is charged with a general care for the welfare of the people; while a county organization is merely the involuntary agent of the state, charged with the interests of the state in the particular county, and clothed with certain administrative functions, limited in extent and clearly defined by law."** Counties have not the powers of corporations in gen- eral. They are merely public quasi-corporations, politi- ^cal subdivisions of the state, and act in subordination and as auxiliary to the state government.** In the A constitutional provision em- powering the legislature to au- thorize municipal corporations to levy assessments for local im- provements has been held to au- thorize such legislation in re- spect to counties. Dowlan v. Sibley County, 36 Minn. 430, 31 N. W. 517. A county is included within the term "municipal corpo- ration," as used in the Alabama Constitution providing that prop- erty shall not be taken for pri- vate use, or for the use of corpo- rations, other than municipal, without the consent of the owner. Ex parte Selma & Gulf R. Co., 45 Ala. 696, 732, 6 Am. Rep., 722. Held likewise in California. Pacific Coast R. Co., v. Porter, 74 Cal. 261, 15 Pac. 774. With regard to its liability for failure to perform some duty, or for the neglect or misfeasance of its officers and agents, a county is not a municipal corporation, but in the broader sense and in common usage the term "munici- pal corporations" includes coun- ties. Rathbone v. Hopper, 57 Kan. 240, 242, 45 Pac. 610, 34 L. R. A. 674. "That a county is 'municipal corporation' cannot well be denied." Glenn v. County Com'rs, 6 S. C. 412, 421. 8?. Williamsport v. Common- wealth, 84 Pa. St. 487, 499, 24 Am. Rep. 208; Elliott, Mun. Corp. (2nd Ed.), § 3; 1 Andrews, Am. Law, § 377. 84. Colorado. Stermer v. Board of County Com'rs, 5 Colo. App. 379, 38 Pac. 839. Maryland. Talbot County v. Queen Anne's County, 50 Md. 245. Missouri. Hannibal & St. Jo- seph Ry. Co. V. Marlon Coun- ty, 36 Mo. 295; State ex rel. v. County Court St. Louis Co., 34 Mo. 546; Barton County v. Wal- ser, 47 Mo. 189. Nevada. Schweiss v. First Ju- dicial Dist, 23 Nov. 226, 230, 45 Pac, 289, 34 L. R. A. 602. Wyoming. Board of Com'rs v. Searight Cattle Co., 3 Wyo. 777, 798, 31 Pac. 268; Powder River § 113 School Districts. 277 employment of agents coimties have not even the powers conferred upon ordinary corporations. They have no power to purchase land or hold the same unless it is given to them by statute. Nor have they authority to assume the exercise of this right by implication.^^ Counties hold their property in subordination to and under control of the legislature.^* Thus money acquired by a county from the taxation of its citizens may be appropriated by act of the legislature to pay a portion of the police expenses of a city sitiiated within its limits.^'' Another distinction may be noted. Municipal corpora- tions proper are usually confined within small, compact territorial limits, and are provided with officers who are empowered to act promptly in all contingencies, while counties generally include large areas and embrace ex- tended regions of sparsely settled territory especially in the states of the West, thus making, it difficult if not impossible, for them with their limited complement of officers to promote safe roads and bridges.®^ This af- fords a basis for holding the former liable for their torts and exempting the latter from such liability unless the action is given, by statute, which subject is treated else- where.** § 113. Municipal corporations distinguished from school districts. Boards of education or school districts rank low in the grade of corporate existence, and, hence, are properly Cattle Co. V. Board of County 87. State ex rel. v. County Com'rs, 3 Wyo. 597, 608, 29 Pac. Court of St. Louis County, 34 Mo. 361. 546. County commissioners, as such, 88. El Paso County Com'rs v. cannot maintain an action Bish, 18 Colo. 474, 477. against those who may destroy a 89. Ch. 46, Municipal Liability bridge. Gallia County v. Hoi- for Torts. Galvester v. Posnaisky, comb, 7 Ohio 232. 62 Tex. 118; Barnes v. District 85. Ray County to use v. of Columbia, 91 U. S. 540; Mad- Bently, 49 Mo. 236. den v. Lancaster County, 65 Fed. 86. Barton County v. Walser, Rep. 188, 191. 47 Mo. 189. 278 Municipal Cobpoeatioits. § 113 denominated quasi-corporations. They possess only limited powers and small corporate life.'" As declared in a ]^ew Hampshire case: "School districts are quasi- corporations of the most limited powers known to the law. They have no powers derived from usage. They have the powers expressly granted to them, and such implied powers as are necessary, to enable them to per- form their duties and no more." ®^ Likewise, in an early Massachusetts case: "That they are not bodies politic and corporate with the general power of corporations, must be admitted; and the reasoning advanced to show their defect of power is conclusive. ' ' ®^ Strictly speaking they are not municipal in their nature or purpose. They act for the public as one of the state's educational agencies, usually with the power to estab- lish schools, loan and manage school funds, levy taxes for school purposes, and sometimes, with power to sue and be sued, contract and be contracted with.®^ For some purposes by virtue of particular laws boards of education and school districts have been held to be municipal corporations,** as in a statute conferring power to issue bonds,'* or, in a law limiting the indebted- ness of municipal corporations,'* or, in a statute fixing 90. Finch v. Board of Bduca- 94. Iowa. Iowa R. R. Land tlon, 30 Ohio St. 37, 46. Co. v. Carroll County, 39 la. 151, 91. Harris v. School District, 166. 28 N. H. 58, 61. Indiana. Davis v. Steuben 92. School District v. Wood, School Township, 19 Ind. App. 13 Mass. 193; Gasklll v. Dudley, 694, 704, 50 N. E. 1. 6 Met. (Mass.) 546, 39 Am. Dec. New Jersey. Commissioners of 750; Andrews v. Estes, 11 Me. Public Instruction v. Pell, 52 N. 267, 26 Am. Dec. 521; M'Loud v. J. Eg. 689, 29 Atl. 816. Selby, 10 Conn. 390, 27 Am. Dec. Washington. Maxon v. School 689; Whitney v. Stow, 111 Mass. Dist. No. 34, 5 Wash. 142, 31 368. Pac. 462; State ex rel. v. Grimes, 93. School District v. Wil- 7 Wash. 270, 34 Pac. 836. liams, 38 Ark. 454; People v. 95. Curry v. Dist. Twp., 62 la. School Trustees, 78 111. 136; 102. Teeple v. State, 171 Ind. 268, 86 96. Winspear v. District Tp.. N. E. 49. 37 Iowa 542. § 113 School Distbicts. 279 eight hours as a day's work for all laborers employed by such gwost-corporations.^^ And for other purposes they have been declared not to be.*® A corporation created to carry on the public school system and raise funds for its support was declared in Alabama to be a corporation for municipal purposes." In Missouri it has been held that the board of educa- tion of the City of St. Louis is not a corporation created for political purposes, nor is it created for the purpose of enabling the people of the district named to conduct its local civil government, and the mere fact that its limits of jurisdiction are the same as that of the city makes no difference in that particular. The corpora- tion is created by the state to assist in carrying out the general common system of education adopted by the state, and although the particular district is sepa- rately organized and incorporated by the legislature, it is no more a municipal corporation than is the board of directors of any other school district in the state.* The Board of Education of Chicago is held to be a department of the city government by the Supreme Court of Dlinois." In Indiana, each civil township and each incorporated town or city in the several counties of the state is declared by statute "a distinct municipal corporation for school purposes, by the name and style of the civil township, town or city corporation, respectively and by such name may contract and be contracted with, sue and be sued," etc' 97. state v. Wilson, 65 Kan. 1. Heller v. Stremmel, 52 Mo. 237, 69 Pac. 172. 809, 311. 98. State v. Downs, 60 Kan. 2. Brennan v. People, 176 111. 788, 790, 57 Pac. 962; Freeland 620, 52 N. E. 353. V. StUlman, 49 Kan. 197, 30 Pac. 3. School Town of Princeton 235; Beach v. Leahy, 11 Kan. 23. v. Glbbart, 61 Ind. 187; Inglls v. 28. State ex rel. Hughes, 61 Ind. 99. Horton v. Mobile, 43 Ala. 212; Davis v. Steuben, School Tp. 598, 607. 19 Ind. App. 694, 704, 50 N. B. 1. 280 Municipal Cokpoeations. §114 In that state, a civil township and the school township of the same territory are distinct corporations and each must sue and be sued in its own corporate name, and neither can sue in the name of the other, or in that of the township trustee. So, also, a civil town and the school town are distinct corporations, which must sue and be sued each in its own corporate name.* § 114. School districts have statutory powers only. The powers of a school district are derived wholly from the statutes. Incidental or implied corporate powers do not belong to them. Unless the statute confers the right usually the power will be held not to exist.® All powers must be exercised in substantial conformity with the statutes applicable. Hence, where the legisla- tive act so designates regular meetings must be 'called, for the members cannot severally consent to any par- ticular action.* I. Wright V. Stockman, 59 Ind. 65; Sheffield School Tp. v. Andress, 56 Ind. 157. 5. Arhansas. First Nat. Bit. V. Whisenhunt, 94 Ark. 583, 127 S. W. 968; Andrews Co. v. De- light Spl. School Dist. (Ark.), 128 S. W. 361. Connectici^t. Hotchkiss v. Plun- kett, 60 Conn^ 230, 22 Atl. 535. Illinois. Folsom v. School Di- rectors, 91 111. 404; Peers v. Board of Education, 72 111. 508; Stevenson v. School Directors, 87 111. 255. Iowa. Manning v. Van Buren, 28 Iowa 332; Monticella Bank v. Coffin's Grove, 51 Iowa 350. Missouri. State v. Lockett, 54 Mo. App. 202. Nebraska. State v. School Dis- trict, 42 Neb. 499, 60 N. W. 912; State V. School District, 16 Neb. 182; Gehling v. School District, 10 Neb. 239; State v. Mayor, etc., 7 Neb. 267. New Jersey. State v. Cole, 51 N. J. L. 277, 18 Atl, 52. New York. Smith v. Proctor, 130 N. Y. 319, 29 N. E., 312. Ohio. State v. Board of Edu- cation, 35 Ohio St 368. United States. Nat. Life Ins. Co. V. Huron, 62 Fed. Rep. 778. 6. Hazen v. Lerche, 47 Mich. 626; State v. Tiedeman, 69 Mo. 515; Smith v. Township Board, 58 Mo. 297; State v. Leonard, 3 Tenn., Ch. 177; Dennlson School District V. Padden, 89 Pa. St 395. As to ratification of illegal acts of board, see Gibson v. School District, 36 Mich. 404; School District v. Fogelman, 76 111. 189; Wells V. People, 71 111. 532; § 115 The New England Town, 281 Usually the board having control of the school build- ings may institute suit for possession^ The prevalent principle of law is that the school board may establish reasonable rules for the government of the schools.® § 115. The New England town contrasted with the . municipal corporation. The New England town as compared with the munici- pal corporation proper is peculiar in its organization. While its general purpose is the same as the ordinary municipal corporation, namely, to regulate the internal or local affairs of the given community, its characteristic features as a governmental organ are somewhat anoma- lous. In the original New England town the body of citi- zens met in town meeting at stated times, to administer its general affairs, while certain details of local government were attended to by designated officers or agents of very limited powers who merely acted as agents of the peo- ple. The early New England towns were not originally incorporated with specific and enumerated powers; but it appears that the inhabitants and settlers of each town- ship as organized bodies adopted regulations for their common convenience and when they were incorporated, or rather recognized by general laws as established cor- porations, the powers which they had thus been used and accustomed to exercise were referred to and confirmed under the very broad and comprehensive term "pruden- tial affairs." So respecting the officers to be elected, after enumerating many specifically, the Massachusetts Statute of 1692 adds, "other ordinary town officers."' Johnson v. School District, 67 8. Spiller v. Woburn, 12 Allen Mo., 319; Gehling v. School Dis- 127; Donahoe v. Richards, 38 Me. trict, 10 Neb. 239; Board of Edu- 376. cation v. Thompson, 33 Ohio at. 9. Spaulding v. Lowell, 23 321. Pick. (Mass.) 71, 78, Per Shaw, 7. Alderman v. School Di- C. J. rectors, 91 111. 179; Barber v. Respecting Massachusetts Trustees of Schools, 51 111. 396. towns, Gray, C. J., in Hill v. 282 Municipal Cohpoeations. §115 "The marked and characteristic distinction," as ob- served by Shaw, C. J., "between a town organization and that of a city is that in the former all the qualified inhabitants meet, deliberate, act and vote in their natural and personal capacities in the exercise of their corporate powers; whereas, under a city government this is all Boston, 122 Mass. 344, 23 Am. Rep. 332, observed: "At the first settlement of the colony towns consisted of clusters of inhabi- tants dwelling near each other, wh'ch by the effect of legislative acts, designating them by name, and conferring upon them the powers of managing their own prudential affairs, electing rep- resentatives and town oflScers, making by-laws and disposing, subject to the paramount control of the legislature, of unoccupied lands within their territory, be- came in effect municipal or qiiasi corporations, without any formal act of incorporation. Porter v. Sullivan, 7 Gray 441, 444; Com. V. Roxbury, 9 Gray 451, 485; West Roxbury Stoddard, 7 Allen 158, 169; Lynn v. Nahant, 113 Mass. 433, 448. "By some of the earlier acts passed under the Province char- ter, the boundaries of all existing towns were ' confirmed, and towns were empowered to assess and levy taxes for the maintenance and support of schools and of the poor and the defraying of other necessary charges arising within the towns, and were declared to be capable of suing and being sued. * • • Soon after the adop- tion of the constitution of the commonwealth, it was for the first time expressly enacted tBat th^ "inhabitants of every town within this government are here- by declared to be . a body politic and corporate. And it has al- ways been held by this court even before it was declared by statute, that towns, as well as counties, territorial parishes and school districts, by virtue of their existence as gwasi-corporations, were capable of holding property and making contracts for the purposes for which they were es- tablished. Windham v. Portland, 4 Mass, 384, 389; Rumford School District v. 'Wood, 13 Mass. 193, 198; First Parish in Sutton V. Cole, 3 Pick. 232, 240. "By the common law of Massa- chusetts and of other New Eng- land states, derived from imme- morial usage, the estate of any in- habitant of a county, town, ter- ritorial parish or school dis- trict, is liable to be taken on exe- cution on a judgment against the corporation. Hawkes v. Kenne- beck, 7 Mass. 461, 463; Chase v. Merrimack Bank, 19 Pick. 564, 569; Gaskill v. Dudley, 6 Mete. (Mass.) 546; Beadsley v. Smith, 16 Conn. 368. In this common- wealth payment of such a judg- ment has never been compelled by mandamus against the corpo- ration, as in other parts of the United States. Supervisors v. U. S., 4 Wall. 435." §115 The New England Town. 283 done by representatives." '" Most of the executive and administrative functions of the city are performed by a chief executive usually denominated the mayor and other principal officers, while the legislative powers are en- trusted to aldermen or a council." 10. Warren v. Mayor, etc., of Charlestown, 2 Gray (Mass.) 84, 101. He further says: "So for- midable an objection was thus considered, that if was not until after the adoption of the second article of amendment of the con- stitution in 1820, that any city was incorporated In Massachu- setts though the necessity of some representative government In Boston had become grievously felt." Commonwealth v. Roxbury, 9 Gray. (Mass.) 451; Coolidge v. Brookline, 114 Mass. 592; Quin- cy's Municipal History of Boston, Chap. 1; Bryce's Am. Common- wealth, Chaps. 48, 49; 1 Swift's System 116; Howard's Local Con- stitutional History of U. S., Vol. 1, Chap. 2. How towns differ from early English municipal corporations. In New Hampshire towns are de- clared by statute to be corpora- tions, and consequently may sue and be sued in reference to all their legal rights and liabilities. Perley, C. J., in 1858, In Eastmann V. Meredith, 36 N. H. 284, 290, 291, remarked : "Municipal corpora- tions in England are broadly dis- tinguished in many important re- spects from towns in this and the other New England states. There is no uniformity in the powers and duties of English municipal corporations. They are not creat- ed and established under any gen- eral public law, but the powers and duties of each municipality depend on its own individual grant or prescription. Their cor- porate franchises are held of the crown by the tenure of perform- ing the conditions upon which they have been granted, and are liable to forfeiture for breach of . the conditions. They indeed aii- swer certain public purposes, as private corporations do, which have public duties to perform and some of them exercise political rights. But they are not, like towns, general political and ter- ritorial divisions of the county, with uniform powers and duties, defined and varied from time to time, by general legislation. Towns do not hold their powers ordinarily under any grant from the government to the individual corporation; or by virtue of any contract with the government, or upon any condition; express or implied. They give no assent to their corporate capacity to the laws which impose their public duties or fix their territorial limits." 11. "Town is the generic term used in this country as embracing all kinds of municipal corpora- tions which have the right to make police rules or regulations, controlling all persons or things within certain specified limits. In this sense of the word, a city is a town. It is a municipal corpo- ration, possessing all the powers 284 Municipal CoepobaIions. §115 Contrasted in this respect with the ordinary municipal corporation, in the New England states, as Connecticut, Massachusetts and Maine, by common law or immemorial usage, the property of any inhabitant may be taken on execution on a judgment against the town." of other municipal corporations, with such additions and limita- tions as are contained in the charter which gives it existence as a city. That which is its chief distinguishing characteristic, con- sists in the mode in which its general affairs are administered by means of certain officers, such as mayor, a'dermen and councils, to whom the citizens entrust most of the legislative and executive powers which in towns they exer- cise in person, in town meetings. Being a municipal corporation it is a species or kind of town differ- ing from other municipal corpora- tions in its government, its of- ficers, and its powers." Per Staples, C. J., in State v. Glennon, 3 R. I. 276, 278. "Towns in Connecticut, as in the other New England states, differ from trading companies and even from municipal corporations elsewhere. They are territorial corporations, into which the state is divided hy the legislature, from time to time, at its discretion, for political purposes and the convenient administration of gov- ernment; they have those powers only, which have been expressly conferred upon them by statute, or which are necessary for con- ducting municipal affairs; and all the inhabitants of the town are members of the QMasi-corpora- tion." Bloomfleld v. Charter Oak Bank, 121 U. S. 121, 129, Per Mr. Justice Gray. History of legislation respect- ing Connecticut towns is reviewed in Webster v. Town of Harwin- ton, 32 Conn. 131, in which it is said that they have no original or inherent powers whatever. All their powers are either expressly granted by the legislative power of the state, or are such as are necessary to the performance of their duties as territorial and mu- nicipal corporations. Granby v. Thurston, 23 Conn. 416. For liistory of Rhode Island towns, see article 13, Harvard Law Review, 441, 570, 638. 12. Bloomfleld v. Charter Oak Bank, 121 U. S. 121, 129. Connecticut. Atwater v. Wood- bridge, 6 Conn. 223, 228, 16 Am. Dec. 46; McLoud v. Selby, 10 Conn. 390, 27 Am. Dec. 689; Beardsley v. Smith, 16 Conn. 368, 41 Am. Dec. 148, where the rea- sons for the doctrine are set forth by Church, J. Maine. Adams v. Wiscasset Bank, 1 Maine 361, 10 Am. Dec. 88, holding that in an action against a New England town hav- ing no corporate funds, the mem- bers of such corporation are par- ties because their property may be taken to pay the debt. Massachusetts. Chase v. Merri- mack Bank, 19 Pick. (Mass.) 564, 569, 31 Am. Dec. 163; Gaskill v. §115 The New England Town. '285 It tlius appears that the New England town differs from the municipal corporation proper,' first, in its gov- ernment, second, in its officers, third, in its powers, and fourth, in the liability of its members or inhabitants for the debts of the public body.^' Dudley, 6 Mete. (Mass.) 546, 39 Am. Dec. 750; Richardson v. But- terfield, 6 Cusli. (Mass.) 194. •where It is said that the liability- is founded on immemorial usage. Riddle V. Proprietors, etc., 7 Mass. 187, 5 Am. Dec, 35; Brewer v. New Gloucester, 14 Mass. 216. 13. Town meetings. In gen- eral the action of town meetings conforms to parliamentary pro- cedure, but it has never been held that they are governed by the strict rules of legislative practice. Wood V. Milton, 197 Mass. 531, 533, 84 N. E. 332; Hunneman v. Grafton, 10 Mete. (Mass.) 454, 457. New England town govern- ment. "As a notable example of a community having a large popu- lation and great wealth, still sat- isfactorily governed under the town meeting system, may be cited the town of Brookline, Massa- chusetts. In the 200th annual re- port of the town officers and town records of the town for the year ending January 31, 1906 * * • are found the following interest- ing particulars: The town has an estimated population of about 24,000; 6,637 assessed polls, and about 4,000 registered voters. The total valuation of taxable real and personal estate is $90,852,400. The total expenditures for the year 1905 were over $1,750,000. * * * The annual budget calls for over a million dollars exclus- ive of state and county taxes and metropolitan sewer and park taxes, which exceed $27,5,000, making a sum of over $1,300,000 to be raised annually by taxation. The expenses o£ administration are slightly in excess of $70,000. Garland, New Eng. Town Law, p. 12. The New England town govern- ment seems to be popular and the inhabitants of a town so governed are loth to part with their, demo- cratic customs. It was attempted to change the form of administra- tion in Boston as early as 1708, "when a committee was appoint- ed to draft a 'charter of incorpo- ration.' " This attempt failed and others were made in 1784, 1791 and in 1815, all of which proved abortive. It was not until 1822, when Boston had a popula- tion of 44,000, that the city was compelled, on account of the un- manageable size of the assembly, to abandon the old plan and ob- tain a city charter, the. first ever granted in Massachusetts. Gar- land, New Eng. Town Law, pp, 10, 11. Further concerning the develop- ment of the town meeting and New England town government: De Tocqueville, Democj-acy in America, Vol. 1, Ch. 5, p. 56; Adams, Germanic Origin of New England Towns (Johns Hopkins University Studies, 1st Series No. 11), pg. 5; Channing, Town and 286 MuNICIPAli COEPOKATIONS. §116 § 116. People and place necessary to constitute a cor- poration. Both population and territory are necessary to con- stitute a municipal corporation.^* All corporations aggregate are but a collection of natural persons, or associations of individuals. In municipal corporations these individuals are variously ^designated inhabitants, citizens, electors, burgesses, freemen, etc., and sometimes freeholders and members.^" County Government in the New England Colonies of North Amer- ica; Freeman's Growth ot The English Constitution 17; May, Constitutional Hist, of England, Vol. 2, p. 460; 1 Andrews, Am. Law, Sec. 378; John Stuart Mill, Representative Government, p. 64; Lecky, History of the Cen- tury, Vol. 1, p. 387; Adams, The Genesis of the Massachusetts Town; Massachusetts Charter Leg- islation by Prof. Joseph H. Beale in proceedings of National Munic- ipal League at Boston in 1902, p. 231 et seq.; Pairlie, Local Govern- ment in Counties, Towns and Vil- lages, Ch. 8, pp. 141 to 156. 14. Galesburg v. Hawkinson, 75 111. 152, 156; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Kelly v. Pittsburgh, 104 U. S. 78; State ex rel. v. Barker, 116 Iowa 96, 89 N. W. 204, 206, 57 L. R. A. 244, 93 Am. St. Rep. 222; Delphi v. Startzman, 104 Ind. 343; State v. Frost, 103 Tenn. 685, 54 S. W. 986. "A charter for municipal pur- poses is an Investing of the peo- ple of a place with the local gov- ernment thereof, constituting an imperium in imperio, and the cor- porators and the territory are the essential elements, all else being mere Incidents of forms." O'Con- nor V. Memphis, 6 Lea (Tenn.) 730, 736; Luehrman v. Taxing District, 2 Lea (Tenn.) 425. There must be inhabitants as "the incorporation is of the inhab- itants of the town or township, and not the grantees of it." Wells V. Burbank, 17 N. H. 393, 404. 15. Burgess — burgher. In Eng- land a burgess or burgher was an inhabitant of a borough or walled town, or one who possessed a tene- ment therein; a citizen or free- man of a borough. At Cologne, in the eleventh century, the terms burghers and merchants are alter- nately used as synonymous. Cen- tury Diet. & Cyclopedia, title "Burgher." A burgess was also a represen- tative of a borough in the British Parliament. The title was applied to the representatives of the House ot Burgesses in Virginia and that of Maryland in the colonial days. The term is sometimes given to a magistrate of a corporate town. A member of the corporation of a Scotch burgh is a burgess. In Connecticut boroughs the board of burgesses corresponds to the township board or board ot §116 People and Place Necessaey. 287 While there must be inhabitants and territory, to con- stitute a municipal corporation there is no legal identity between the corporation and the inhabitants who com- pose it. The corporate body is a distinct legal entity.^* The acts of the corporation are the acts of those legally authorized to do the thing in question, provided it is done in the manner and at the time specified by the law applicable. The ofificers and legal agents constitute the corporate authorities, empowered to act for the legal entity or corporation, in behalf of the inhabitants who constitute, in fact, in connection with the territory, the corporation. The council or other legislative or governing body is not the corporation, nor the government of a city; nor do the municipal officers who are the mere servants and agents of the municipality constitute the corporation.^'' trustees In many states, or to the board of aldermen or common council of a city; being the body invested with the corporate pow- ers of the local corporation. In Pennsylvania the chief ex- ecutive officer of a borough is named the chief burgess. Burgess under the English Mu- nicipal Reform Act, 9 Encyclo- pedia of the Laws of England, tit. "Municipal Corporations." 16. May hew v. Gay head, 13 Allen (Mass.) 129, 134. See 8 The Laws of England (Halsbury), tit. "Corporations," par. 686; also, § 103, supra. Inhabitants distinct from the corporation. The municipality is not in any legal sense the agent of its inhabitants, either singly or collectively, but is a legal in- stitution in the nature of a gov- ernmental agency deriving Its power from the state. Ancrum v. Camden Water, etc., Co., 82 S. Li. 284, 64 S. B. 151. 17. Valparaiso v. Gardner, 97 Ind. 1, 6, 49 Am. Rep. 416; Stros- ser V. Ft. Wayne, 100 Ind. 443, 449; Baumgartner v. Hasty, 100 Ind. 575, 585, 50 Am. Rep. 830; Brown V. Gates, 15 W. Va. 131; Clarke v. Rochester, 14 How. Pr. 193, 5 Abb. Pr. 107; Welch v. Ste. Genevieve, 1 Dill. C. C. 130, 134; Appeal of Whalen, 16 Pitts. Leg. Journ. (Pa.) 113; Grant, Corpora- tions 357. Officers are not the corpora- tion. The supervisors of a coun- ty, as such, or as a board are not a body corporate, and possess no power as a corporation. The cor- poration is the county. Brady v. Supervisors of City and County of New York, 2 Sandf. (N. Y.) 460, 469. A county may be created and have existence as such, notwita- standing it has no county officers. Carleton v. People, 10 Mich. 250, 253. 288 Municipal Coepoeations. §117 § 117. Membership in a municipal corporation. The inhabitants residing within the corporate limits, or those entitled to vote at municipal elections, are the The officers are not the body pol- itic, corporate or the corporation. So an office may exist without an incumbent. The officer is not the office. People v. Stratton, 28 Cal. 382. Judge Thompson says that the legal conception of the municipal corporation is believed to be that "it consists not of the aggregate body of Inhabitants within the prescribed territory, or even of the aggregate body of inhabitants within such territory who are en- titled to vote at municipal elec- tions; but rather that It consists of the governing body, usually the mayor and common council." 1 Thomp. Corp., Sec. 16. In 1857, in referring to the City of New York, in Lowber v. The Mayor, etc., of N. Y., 5 Abb. Pr. 325, Roosevelt,- J., said (p. 329) : "It is an erroneous impression, although a very prevalent one that the members of the common council constitute the corporation. The City of New York, In the language of the Dongan charter, 'is an ancient city, and the citi- zens of the said city have ancient- ly been a body politic and corpo- rate;' and in the language of the Montgomerie charter it was 'the inhabitants and citizens of said city,' whom the Crown 'thought fit' to constitute 'a body politic and corporate, by the name and style of the mayor, aldermen and commonality of the city of New York.' It is the citizens, and not the aldermen merely and their as- sociates who form the corpora- tions, and, in their aggregate character, the corporation. Alder- men, like other officers, are elect- ed, not to supersede, but to aid the citizens in the 'better govern- ment of the city,' and, so far as questions of property and revenue are concerned, they (p. 330), may be likened to directors of banking and railroad companies. They are trustees of the common fund of which the citizens are the stock- holders, or, as the law expresses It, the cestui que trust." To same effect is Clark v. Ro- chester, 5 Abb. Prac. (N. Y.) 107. A religious corporation consists not of the trustees, but of every member of the congregation hav- ing the privileges of voting. Wyatt V. Benson, 4 Abb. Prac. (N. Y.) 182, 186; Robertson v. Bullions, 11 N. Y. 243, Per Selden, J. "It is not the municipal coun- cil which constitutes the corpora- tion, nor Is it the ratepayers of a place nor the electors of a munic- ipality who are thus incorporated. The inhabitants of a municipality are the corporators, not only un- der this (Canadian) statute, but also under the Municipal Corpora- tion Act of 1882 (English), and the incorporation acts of the cities of Toronto and Kingston." Big- gar, Municipal Manual of Canada, p. 36, note. An inhabitant of a place, speak- " ing generally, is pne who has his permanent home there. Rex v. Mitchell, 10 East. 511. I § 118 Elements of Mttnicipal Coepoeation. 289 members of the corporation. Eesidence -within the place or district and qualifications as a municipal elector con- stitute membership in the corporation, and is not affected by the wishes of the person or the corporation.^^ § 118. The elements of the municipal corporation enumerated. It thus appears that the elements of the municipal corporation are : 1. A legal creation or incorporation, duly authorized by the sovereign power, evidenced by a charter contain- ing the corporate powers. 2. A corporate name by which the artificial person- ality or legal entity is known and in which all corporate acts are done. 3. Inhabitants constituting the population who are invested with the political and corporate powers, which are executed through duly constituted officers and agents. 18. Membership in a municipal town, after many years' residence corporation. "In all guasi-corpo- there, or had not returned until rations, as cities, towns, parishes five months before the meeting. Is and school districts, membership not a legal voter, under a law re- is constituted by living within quiring one year's residence. State certain limits." Overseers of the v. Harris, 52 Vt. 216. Poor vl Sears, 22 Pick. (Mass.) Previous residence in territory 122, 130, approved by Gray, C. J., annexed to a city has been held in Hill V. Boston, 122 Mass. 344, to be a residence within the city 23 Am. Rep. 332. for the purpose of computing the "When a man removes into a period of residence necessary, to town, he becomes a citizen there- render a person eligible to a mu- of, whatever may be the desire of nicipal office. G-ibson v. Wood, 105 himself or the town. His re- Ky. 740, 43 L. R. A. 699. moval into the town is voluntary. See ch. 12 post. But having removed, it is not op- Where the constitution only re- tional with himself or the town, quires thirty days' residence in a whether he shall become a citizen county to qualify one to vote, a thereof or not. The same prin- statute requiring ninety days' res- ciples apply to parishes." Per Idence to vote for city officers is Morton, J., In Oakes v. Hill, 10 unconstitutional. People ex rel. Pick. (Mass.) 333, 346. v. CJanaday, 73 N. C. 198, 21 Am. One who has removed from a Rep. 465. 1 McQ.— '19 290 Municipal Coepoeations, §119 4. A place or territory within wMch the local civil government and corporate functions are exercised. § 119. Origin of private municipal capacity. The public and private character and complex nature of municipal administration is stated elsewhere.^® It is usually assumed that the distinct recognition as a principle of the gwasi-private right to hold and manage property, to sue and be sued, and to act generally as a private corporation in supplying local needs, conven- iences and comforts, and in performing such functions as belong to the private corporation as an individual or legal personality — the idea of corporate capacity and liability — is of comparatively recent origin in our juris- prudence and is not found in the early English and American law relating to municipal corporations. It is taken for granted that the municipal corporations were in this respect considered merely governmental subdivi- sions, and hence it seemed difficult to conceive any autonomous rights or private legal duties as belonging to them. It has been asserted that this recognition of quasi- private character, as observed by Prof. Goodnow, "which has always obtained on the continent, x>riginated in the feudal system, which had greater influence in Continental Europe than in insular England. One of the fundamental principles of that system was local autonomy. When joined with the Eoman law idea of corporate capacity, it resulted naturally in the recognition of local govern- mental corporations with a sphere of local action apart from that of the state as a whole.'"'" 19. §§ 87 to 89, supra. applicable to private corporations 20. Goodnow, Mun. Home Rule, were Invoked in dealing with the pp. 109, 110; Goodnow, Mun. Prob- municipal corporation. Rowe, lems. Problems of City Government, Origin of private municipal 'Ch. 6. capacity. After the development "The law of municipal corpora- of public or municipal corpora- tion is but a branch of that larger tlons many of the rules of law system of corporate jurisprudence §119 Pbtvate Municipal Capacity. 291 The Louisiana decisions relating to the private rights of the municipal corporation recognize to some extent this private corporate capacity of the Roman law. This is only natural, as the principles of the civil law early obtained in that state when its territory was under the jurisdiction of Spain and France. It appears that under the Eoman civil law, as pointed out by an intelligent author, no distinction was drawn between the municipalities and the private corporations, either in respect of their independence or their capaci- ties. In the Roman system ' ' a municipal corporation was an independent member of society, so far as its private rights and obligations were concerned; and the test of its corporate character was its property capacity. All urban communities, whether civitates, mimicipia, coloniae, or vici, possessing the power of acquiring and holding property, were corporations. And it was largely to presei-ve to these corporations their individual rights that the law relating to juristic or artificial persons, was developed. "^^ Although in the early period of the development of the English law the principle of gitosi-private capacity and liability was not so extensively recognized as in the civil law, the reported cases clearly demonstrate that it has always been assumed or directly asserted by the courts. And whatever its origin the municipal corporation in many of its most important aspects is treated as a pri- vate corporation, and is, therefore, in this respect subject to all of the obligations, and is entitled to all of the bene- fits of the private law.*^ which has Its roots In the Roman 21. Jones, Neg. Mun. Corp., law." Rowe, Problems of City §S 12, 13. Government, p. 116. 22. See § 87 supra. 292 Mtjnicipal Cobpoeations. CHAPTER 3. CREATION AND CLASSIFICATION OF MUNICIPAL COR- PORATIONS. Sec. 120. Creation In England. 121. Power to create vested In state. 122." Creation by general or special act— the method prescribed to be followed. 123. The Congress has power to create corporations. 124. Creation as delegation of leg- islative authority. 125. Early corporations created by special acts — evil effects. 126. General incorporation laws required, and special acts usually forbidden. Sec. 127. Creation under constitutional provisions. 128. Effect of general statutes on special charters. 129. Special chartered cities and towns riiay incorporate un- der the general laws. 130. Surrender of special charter and organizing under gen- eral laws — effect on munic- ipal government. 131. Classification. 132. Advancement and reduction in class or grade. OBQAinzII^O UKDKB GENERAL LA.WB. Sec. 133. Compliance with statutory provisions in general- irregularities. 134. Same — illustrative cases. 135. Same subject. 136. Incorporation by court. 137. Same subject. 138. Separate bodies possessing concurrent jurisdiction. 139. Necessary steps to incorpo- rate. 140. Same — statutory provisions. 141. The petition for incorporation — suflSciency. 142. Same — qualification of sign- ers. 143. Same-^ight to withdraw signatures. Sec. 144. Notice of pendency of pro- ceedings to incorporate. Hearing of application for incorporation. Court order of incorporation. Election on creation and change of boundaries. 148. Same — official action thereon. 149. Void corporation. 150. Doctrine of implication. De facto corporations. State recognition. Acceptance of charter. Proof of corporate existence — judicial notice — pleading. Same. Same — how Incorporation proved. 145. 146. 147. 151. 152. 153. 154. 155. 156. §120 Cbbation in England. 293 Sec. Sec. 157. Same— location of corpora- 160. Constitutional provisions. tion. 161. Same— title to act— illustra- 158. Questioning creation — quo tive cases. warranto — certiorari. 162. Same subject. 159. Same. 163. Same subject § 120. Creation in England. Municipal corporations existed in England: (1) by act of Parliament, (2) by charter of tbe Crown, (3) at com- mon law, and (4) by prescription.^ The creation of these bodies is regarded as a sovereign power, and hence, in modem England, municipal cor- porations may be created only by the governmental au- thorities possessing such power, namely, by aot of Parliament and by Eoyal charter.* At common law the king had a prerogative right to grant charters, municipal aa well as private.^ But this was nothing more or less than a prerogative to confer privileges. It did not involve a power to impose political obligations unless by way of condition. He could not compel the acceptance of any charter.* Therefore, ac- ceptancewaS necessary to render the king's charter oper- ative." It is to be observed that the king's municipal charters were granted to existing communities acting as one body through elections or agencies and officers. The royal grant included only liberties or franchises. At common law exclusive power could only be granted by act of Parliament.' However, Parliament by virtue of the plen- 1. Willcock, Mun. Corp., 63, 64; 4. Willcock, Mun. Corp., 30; Glorer, Mun. Corp., 24; 1 Bl. Com., King v. Amory, 1 Term Rep. 572; 473, 474. Paterson v. Society, 24 N. J. L. 2. St. 45 and 46 Vict. C. 50, 385, 397. part XI, §§ 210 to 216; Arnold's 5. People ex rel. Shumway v. Law of Mun. Corp. (5th Ed., Lon- Bennett, 29 Mich. 451, 18 Am. Rep. don), pp. 202 to 208. 107. 3. Rutter v. Chapman, 8 M. & 6. 1 Kyd Corp. 61. W. 1, 10 L. J. Bxch. 495; Rex v. Glnever, 6 T. R. 735. 294 MtTNIOIPiJj COBPOEATIONS. §121 itude of its power could always impose municipal char- ters without acceptance or consent/ § 121. Power to create vested in state. In this country the power to create bodies politic and corporate for municipal purposes with the means of local self-government, is a legitimate exercise of sovereignty, lodged in the legislative power of the state,* or territory, when conferred by the organic law.® Therefore, inde- 7. Wlllcock, Mun. Corp., 25. Present English law contem- plates the acceptance of Royal charters. 45 and 46 Vict. c. 50, part XI, § 216. The Crown may grant a charter of incorporation, though the peti- tion for it he not signed hy a majority either in persons or property of the inhabitant house- holders. Reg. v. Boucher, 2 Gal. & D. 737, 43 B. C. L. 904. If the proper number of inhabi- tant householders of a borough petition the crown for the grant of a charter the king' may grant the charter even though a major- ity of the inhabitant householders sign a new petition against the grant which Is received by the king before the grant is made. The original petition, if sufficient, is unaffected by the subsequent change of mind of the signers evi- denced by the later petition. Reg. V. Aberavon, 13 W. R. 90, 11 L. T. N. S. 417; Rutter v. Chapman, 8 M. & Wei., 10 L. J. Bxch. 495. Creation in England, history, see "The origin of municipal In- corporation in England and in the United States" by Amasa M. Ea- ton, 25 Reports of Am. Bar Assn. (1902), p. 292 et seq. 8. Arkansas. State T. Jen- nings, 27 Ark. 419. California. Allen v. Bakersfield, 157 Cal. 720, 109 Pac. 486; People V. Riverside, 70 Cal. 461, 11 Pac. 759. Florida. Robinson v. Jones, 14 Fla. 256. Georgia. Mattoz v. State, 115 Ga. 212, 41 S. E. 709. Illinois. People v. Bowman, 247 111. 276, 93 N. E. 244; 'People v. Wren, 5 111. 269. Minnesota. St. Paul v. Colter, 12 Minn. 41, 90 Am. Dec. 278. Missouri. Taylor v. Carondelet, 22 Mo. 105. Neto York. People v. Draper, 15 N. T. 532. Tennessee. Hope v. Deaderick, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; Morristown v. Shelton, 1 Head. 24 ; Trigally v. Memphis, 8 Coldw. (Tenn.) 382, 388. Vermont. Thorpe v. Rutland & Burlington R. Co., 27 Vt. 140, 62 Am. Dec. 625. Wisconsin. In re North Mil- waukee, 93 Wis. 616, 33 L. R. A. 638, 67 N. W. 1033. United States. United States v. Insurance Co., 22 Wall. (U. S.) 99. 9. Colorado. Deitz v. Central, 1 Colo. 323. Kansas. Burnes v. Atchison, 2 Kan. 454; State v. Young, 3 Kan. 445. § 121 Power to Cbeate in State. 295 pendent of legislative action the inhabitants of a given territory or place possess no inherent power to incorpo- rate themselves, or to create a local corporation, invest- ing it with powers of internal govemment.^** As expressed, in substance, by the Supreme Court of the United States : The legislature may give the munici- pal corporation all the powers such a being is capable of receiving, and make it a miniature state within its. locality. Again, it may strip it of every power, leaving it a corporation in name only; and it may create and re-create these changes as often as it chooses, or it may itself exercise directly within the locality any or all the powers usually committed to a municipality. We do not regard its acts as sometimes those of an agency of the state, and its others those of a municipality, but that, its character and nature remaining at all times the same, it is great or small according as the legislature shall ex- tend or contract the sphere of its action,^^ Missouri. Rlddiok v. Amelln, 1 Dunson, 71 Tex. 65, 70, 1 Andrews, Mo. 8. Am. Law, § 370. Montana. People ex rel. v. Butte, H- Barnes v. District of Co- 4 Mont. 175, 207. lumbia, 91 U. S. 540. . „, -- , , State may create, change and Wyomxng. Wagner v. Harris, 1 ^^^^^^^ ^^ pleasure. The right Wyo. l» . to be a municipal corporation Is United States. Vincennes Unl- ^ franchise which the state may verslty v. Indiana, 14 How. (U. grant or withhold at its pleasure. S.) 268. Robinson v. Jones, 14 Fla. 256. 10. Illinois. Jameson v. Peo- The legislature has an uncou- ple, 16 111. 257, 63 Am. Dec. 304. trolled discretion respecting the Kentucky. Cheaney v. Hooser, incorporation of municipalities. 9 B. Mon. 330. Mattox v. State, 115 Ga. 212, 41 Nebraska. Redell v. Moores, 63 S. E. 709. Neb. 219, 88 N. W. 243, 55 L. R. It is competent for the leglsla- A. 740, 93 Am. St. Rep. 431. ture to enact laws for the govern- New Hampshire. Berlin v. Gor- ment of municipal corporations ham, 34 N. H. 266; New Boston and then empower county courts V. Dunbarton, 122 N. H. 409, 412. to locate and apply the laws to Nevj Jersey. Paterson v. Useful any community that may petition Mfrs. Soc., 24 N. J. L. 385. for it, and bring themselves with- Texas. Buford v. State, 72 Tex. in Its provisions. Morristown v. 182, 10 S. W, 401; State ex rel. v. Shelton, 1 Head. (Tenn.) 24. 296 Municipal Corporations. §121 Hence, in the absence of constitutional restriction the legislature may provide for organizing, uniting, dividing or annulling municipal corporations as the public welfare may require.^^ The legislature may prescribe the limits of municipal corpora- tions for police purposes, and en- large or contract them at pleasure. Chicago Packing and Provision Co. T. Chicago, 88 111. 221, 30 Am. Rep. 545. The legislature may create a municipal corporation conditional- ly, and prescribe conditions pre- €edent to its corporate existence, a disregard of which will render void the corporate entity. Butler V. Walker, 98 Ala. 358, 13 So. 261, 39 Am. St. Rep. 61. The trustees of a duly incorpo- rated town cannot abandon or dis- _ incorporate such municipality, and set up a new municipal govern- ment without authority of law. People ex rel. v. Bancroft, 2 Idaho 1078, 29 Pac. 112. Provisional governments for the regulation of the affairs of the cities and towns of the territory of Oklahoma which were establish- ed prior to the act of congress approved May 2, 1890, were but voluntary associations of people living in them without legal au- thority and had no power to con- tract debts which would consti- tute legal obligations upon the municipalities afterwards formed under the authority of law. Guthrie v. Harvey Lumber Co., 9 Okla. 464, 60 Pac. 247; Oklahoma V. Richardson, 3 Okla. 5. "These provisional governments grew out of a necessity made by the absence of legislative author- ity. They were aggregations of people associated together for pur- poses of mutual benefit and pro- tection. Without any statute law they became a law unto them- selves and adopted the forms of law and government common among civilized people,- and en- forced their authority by the power of public sentiment. They had no legal existence; they were nonentities; they could not bind themselves by contract, or bind any one else. They were morally bound to make just recompense for that which they received in money, labor or material, but no such obligation could be enforced against them." Guthrie v. Terri- tory ex rel. Losey, 1 Okla. 188, 194. The legislature may provide for payment of debts and liabilities of such provisional government by a village corporation which succeeds it and obtains all its rights, franchises and property, and a city which succeeds such legal village corporation is In like manner bound. Guthrie v. Ter- ritory ex rel. Losey, 1 Okla. 188. In the Roman system individu- als, independent of action by the sovereign power could not incor- porate themselves. Taylor, Pri- vate Corp. (3d Ed.), sec. 6.- The doctrine of implication ap- plies to municipal corporations. Sec. 150 post. 12. True v. Davis, 133 111. 522. Legislature may incorporate farming lands without the limits of a town. State v. MacReynolds, "$^122 General, ob Speciai, Laws. 297 § 122. Creation by general or special act — method pre- scribed to be followed. The legislative act creating the mtmicipal corporation may be (1) general, or (2) special, as raentioned in the sections -wihich foUow.^^ The prevailing general rule is that the method pre- scribed for incorporation must, in substance, be observ- ed.^* Thus where a legislative act authorizing the creation of a municipal corporation, directs that the government of the locality shall be vested in a president and four trustees, and that a justice of the peace, elected in a par- ticular manner, shall be ex officio president, if that per- son shall not be commissioned and enter upon the duties of his office within the time required, the act becomes inoperative, and the inhabitants of the locality do not become incorporated as a municipal corporation. The reason for this conclusion is obvious. The view of the court, in substance, is : Until an organization by election and qualification of the number of persons, being , the several integi-al parts of the corporation and form- ing the political body provided for in the laws, there can be no municipal corporations or government ; and the condition of the inhabitants within the limits named in the law, as to rights and duties, would continue un- changed or unaffected by the law authorizing them, in a corporate capacity, to exercise municipal powers. The president, by the law, is an integral part, and the execu- tive head of the corporation, and without all of the parts being complete, by the election and qualification of the president and trustees, as provided by law, the corpora- tion would have no validity, so to speak, or means of action, and, therefore, the powers delegated could not be exercised.^^ 61 Mo. 203; State ex rel. v. War- Riverside, 66 Cal. 291; People v. del, 153 Mo. 319. Gunn, 85 Cal. 238, 246; Catlett v. 13. §§ 125, 126 post. People, 151 III. 16. 14. To create municipal corpora- See § 133 et seq. post. tlons compliance with statutory 15. Haynes v. Washington provisions is necessary. People v. County, 19 111. 66, 68. 298 Municipal Coeporations. §§123, 124 § 123. The Congress has power to create corporations. The Federal Congress may create public and private corporations, since it is invested with the general pow- ers of sovereignty concerning such subjects as are ex- pressly enumerated, or committed to its control, by the organic law of the land. Therefore, that the Congress may create public corporations iit order to carry out the objects of the federal government is well established. Thus it may create national banks,^* or railroads, or bridge, companies,^'' or it may authorize their creation by territorial legislatures.^* By express provision of the Federal Constitution the Congress may "exercise exclusive legislation in all cases whatsoever" over the District of Columbia, and under such authorization it has constituted this district "a body corporate for municipal purposes. ' ' ^* § 124. Creation as delegation of legislative authority. The American system of government, as tersely de- clared by Judge Cooley, "is one of complete decentraliza- tion, the primary and vital idea of which is that local affairs shall be managed by local authorities and general affairs only by the central authority."^" And while 16. McCulloch T. Maryland, 4 101 U. S. 129; Reynolds v. V. S. Wheat. (IT. S.) 316; Osborn t. U. 98 V. S. 145, affirming 1 Utah 319 S. Bank, 9 Wheat. (U. S.) 738. 19. Stoutenburgh v. Hennick, 17. Lruxton V. North River 129 U. S. 141, 147, 9 Sup. Ct. Rep Bridge Co., 153 U. S. 525, 14 Sup. 256, 32 L. Ed. 637; Barnes v. Dis Ct. Rep. 891, 38LuEd. 808; Thomp- trict of Columbia, 91 U. S. 540 son V. Pacific R. R., 9 Wall. (U. Vincennes University v. Indiana, S.) 579; California v. Pacific R. 14 How. (U. S.) 268; United States R., 127 U. S. 39; Texas & Pac. R. v. Trimble, 14 App. Cas. (D. C.) R. Co. v. Kirk, 115 U. S. 2, 18. 414, 422; Metropolitan R. Co. v. 18. People ex rel. v. Butte, 4 Dist. of Columbia, 132 U. S. 1, 10 Mont. 175, 207, 1 Pac. 414, 47 Am. Sup. Ct. Rep. 19, 33 L. Ed. 231. Rep. 346; Deitz v. Central, 1 Col. 20. Cooley's Const. Lim. (7th 323. Ed.), p. 261; People v. Hurlbut, The Congress has complete con- 24 Mich. 44, 9 Am. Rep. 103; Peo- trol over the territories. Murphy pie v. Detroit, 28 Mich. 228, 15 T. Ramsey, 114 U. S. 15, 5 Sup. Ct. Am. Rep. 204; People v. Draper, 747; National Bank y. Yankton, 15 N. Y. 561; People v. Albertson, 55 N. Y. 50. § 124 Creation as Delegation op Powee. 299 tlie rule is also fundamental that the power to make laws cannot be delegated, the creation of municipal cor- porations to exercise local self-government has never been held to violate this principle. Such legislation, observed Chief Justice FuUer, is not regarded as a trans- fer of general legislative power, but rather as a grant of the authority, to prescribe local regulations, accord- ing to the principle stated, and supported by immemorial practice, but subject, of course, to the interposition of the superior in cases of necessity.^^ Municipal corporations form an exception to the rule which forbids the legislature to delegate any of its powers to subordinate divisions.^^ This well established rule of law may be illustrated briefly. Thus some cases hold that a legislative act granting municipal powers may be enacted to take effect only upon its adoption by the popular representative body of each locality to be affected f^ or acceptance may be by popular election or by the popular elective branch of the municipal government.^* Hence, an act authoriz- ing the mayors of all the respective cities in the state to appoint the principal municipal officers, such act to take effect in such cities as shall accept it at a popular, elec- tion, has been adjudged constitutional. In the court's opinion the fact that diverse results may flow from such grant of power does not render the act void.^^ 21. Stoutenburgh t. Hennick, 585; Eckerson v. Des Moines, 137 129 U. S. 141, 147, 9 Sup. Ct. R. Iowa 452, 478, 115 N. W. 177. 256, 32 D. Ed. 637; Covington v. But see § 212 post. East St. Louis, 78111. 548; Cheaney 25. In re Cleveland, 52 N. J. r. Hooser, 9 B. Mon. (Ky.) 330. L. 188, 51 N..J. L. 319. Contra 22. McMahon v. Savannah, 66 Appeal of Scranton School Dist., Ga. 217, 224. 113 Pa. St. 190, § 212 post. 23. Do Hart v. Atlantic City, Ministerial powers may be dele- 62 N. J. Ij. 586. gated, but not so with legislative. 24. Paterson v. Society, 24 N. Neill v. Gates, 152 Mo. 585, 594^ J. L. 385; State v. Morris 54 S. W. 460; Ruggles v. Collier, Pleas, 36 N. J. L. 72; Warner v. 43 Mo. 353, 365. Hoagland, 51 N. J. L. 62; Paul v. Gloucester County, 50 N. J. L. 300 Municipal Coepoeations, § 125 This rule is discussed and illustrated more fully else- \\^ere.^* The doctrine which authorizes the legislature to dele- gate governmental powers to local communities by creating autonomous corporations for local public pur- poses is derived from the English law which was early established in the colonies. Under this law incorporated communities had always been *invested with ample authority to regulate their local affairs by the enactment of municipal by-laws or ordinances and in other appro- priate ways. The state constitutions were established with municipal corporations, and the usual powers exercised by them for local governmental purposes, in existence, and therefore, it is reasonable to conclude their continuance was in contemplation.^'^ § 125. Early corporations created by special acts — evil effects. During our early history each municipal charter con- ferring or recognizing the power of local self-government in matters pertaining to the local interests of the particu- lar community was granted by special act;^^ and all 26. i 212 post. of local taxation and police regu- 27. Elliott, Mun. Corp. (2nd latioa usual with such corpora- Ed.), § 20; 1 Andrews, Am. Law, tions, would always pass unchal- Sec. 402. lenged. The , legislature in these See §§ 69, 70 supra. cases is not regarded as delegat- Creation is not delegation of ing its authority, because the regu- iegislative authority. "It has al- lation of such local affairs as are ready been seen that the legisla- commonly left to local boards and ture cannot delegate the power to officers is not understood to be- make laws; but fundamental as long properly to the state; and this maxim is. It is so qualified when it interferes^ as sometimes by the customs of our race, and by it must, to restrain and control other maxims which regard local the local action there should be government, that the right of the reasons of state policy or dangers legislature, in the entire absence of local abuse to warrant the in- of authorization or prohibition, to terposition." Cooley's Const. Lim. create towns and other inferior (7th Ed.), pp. 264, 265. municipal organizations, and to 28. Burke v. Jeffries, 20 Iowa confer upon them' the powers of 145. toral gorernment, and especially § 126 Special Acts Foebidden. 301 changes in the local organization and all powers con- ferred, or recognized, likewise formed the subject of a single legislative act.*' Until within the past few years all private and public corporations were created in this manner. This system resulted in a wlant of uniformity in the organization, powers and liabilities of corporations. Special privileges and franchises were conferred on some and denied to others f many of the states were covered with a sort of patch work of incongruous legislation relating to the municipalities f- and the various legisla- tures were constantly repealing and amending municipal charters, interfering with just municipal freedom, im- posing pecuniary burdens on local communities without the consent of the local authorities or the inhabitants, and frequently against the earnest protests of those who were compelled to pay without voice or vote, and ' thus contrary to our system of complete decentraliza- tion, gradually concentrated in the state much of the local self-government of the communities which had been possessed and exercised from the beginning.*^ § 126, General incorporation laws required, and special acts usually forbidden. The remedy for the evils growing out of the practice of granting corporate charters by special legislation was sought in the enactment of general incorporation laws for the creation of incorporations, and express prohibi- tion against special charters. Such laws exist in many of the states ; seek to establish a single and uniform sys- 29. Special laws are regarded 31. St. Liouls v. Dorr, 145 Mo. as public acts. Gorham.v. Spring- 466, 46 S. W. 976; Murnane v. St. field, 21 Me. 58; Brooks Vv Fischer, Louis, 123 Mo. 479, 27 S. W. 711. 79 Cal. 173, 21 Pac. 652; State ex 32. See ch. 4, Legislative Con- rel. V. McReynolds, 61 Mo. 203. trol of Municipal Corporations. 30. People v. Chicago Gas Trust Co., 130 111. 268, 22 N. E. 798. 302 MirinCIPAl, COKPOEATIONS. U26 tern for municipal government, and are generally re- quired by express constitutional mandate.^* Some of the earlier State Constitutions excepted, by express terms, municipal corporations,-'* and other con- stitutional provisions reciting generally that "no cor- poration" shall be created or its powers increased or diminished by special law, which, have been held by some courts to apply only to private corporations,^* while other courts have said that municipal corporations are embraced also.^® This matter is treated elsewhere.^'' At present the creating of municipal corporations by special laws prevails in some states; however, in some, particular constitutional restrictions exist.®^ 33. Shumway v. Bennett, 29 Mich. 451, 457, 18 Am. Rep. 107. 34. Low V. MarysTllle, 5 Cal. 214; Oroville & Va. Railroad v. Plumas, 37 Cal. 354. 35. Owners of Land v. People, 113 111. 296; State v. Newark, 40 N. J. L. 550, 558; Ballentine v. Pulaski, 83 Tenn. (15 Lea) 633; State ex rel. v. Wilson, 80 Tenn. (12 Lea) 246. See State v. District of Narra- gansett, 16 R. I. 424, 24 Am. & Bng. Corp. Cas. 131. 36. Seattle v. Yesler, 1 Wash. Ter. 571; Clegg v. Richardson County, 8 Neb. 178; Dundy t. Richardson County, 8 Neh. 508. 37. Ch. 4, Legislative Control of Municipal Corporations. 38. Alabama. Const. 1875, art. 14, sec. 1. Colorado. Const. 1876, art. 15, sec. 2; amendment 1902, art. 20, §§ 5, 6. Connecticut. No constitutional provisions on this subject. Delaware. No constitutional provisions on this subject. Florida. Const. 1885, art 3, sec. 24. Georgia. Const. 1877, art. 3, § 6. Idaho. Const. 1889, art. 11, sec. 2. Louisiana. Const. 1898, art. 48, § 12. Maine. Const. 1876, art. 4, pt. 3, sec. 14. Maryland. Const. 1867, art. 3, sec. 48; Const. 1876, art. 3, § 48. Massachusetts. No constitu- tional provisions on this subject. Nevada. Const. 1864, art. 8, sec. 1. New Hampshire. No constitu- tional restriction. New York. Const. 1900, art. 8, sec. 1. North Carolina. Const. 1868, art. 8, sec. 1. Oregon. Const. 1857, art. 11, sec. 2. Texas. Const. 1876, art. 11, §§ 4, 5. Vermont. No constitutional re- striction. Wisconsin. Const. 1848, art. 11, §§ 1, 3; Stimson Am. St. Law, sec. 500. §126 Special Acts Fobbiddek. 303 Many of the recent State Constitutions in express terms prohibit the organization and classification of mu- nicipal corporations by special act,*® and inhibit special In the absence of constitutional provision the legislature may create municipal corporations with special charters. Greeley v. Peo- ple, 60 in. 19. 39. Arkansas. Const. 1874, art. 12, sees. 2, 3. Oalifomia. Const. 1880, art. 12, sec. 1; Const. 1896, amendment, art. 11, § 6. Illinois. Const. 1870, art. 11, sec. 1; art. IV, sec. 22. Indiana. Const. 1851, art. XI, sec. 212. /o^«^. Const. 1857, art. Ill, sec. 30. Kansas. Const. 1859, art. XII, sees. 1, 5. Kentucky. Const. §§ 56, 59; Mclnerney v. Huelefeld, 25 Ky. Law Rep. 272, 75 S. W. 237. Louisiana. Const., § 46, except- ing the city of New Orleans, levee districts and parishes. MicUgan. Const. 1909, art. 8, §| 20, 21; amending Const, 1850, art. 15, § 1. Minnesota. Const. 1892, art. IV, sec. 33; amending Const. 1857, art. 10, § 2. Mississippi. Const 1890, art. IV, sees. 87, 88. Missouri. Const. 1875, art. IV, sec. 53; art. IX, sec. 7; State ex rel. V. Coffee, 59 Mo. 59. Nebraska. Const. 1875, art. lib, sec. 1; art. XIII, § 1. New Jersey. Const, as amended 1875, art. IV, sec. 7, par. 11. North Dakota. Const. 1889, art. 11, sec. 69; art. IV, § 130. Ohio. Const. 1851, art. 13, sees. I, 6; State v. Cincinnati, 20 Ohio St. 18; McGill v. State, 34 Ohio St. 239. Pennsylvania. Const. 1874, art. Ill, sec. 7. South Carolina. Const. 1895, art. Ill, sec. 34. South Dakota. Const. 1889, art. Ill, sec. 23; Const. 1899, art. X, sec. 1. Tennessee. Const, ch. XI, § 1. Utah. Const. 1895, art. XI, sec. 5. Virginia. Const. 1902, art. VII, sec. 117; art. IV, § 65. Washington. Const. 1889, art. II, sees. 28, 172. West Virginia. Const. 1872, art. 11, sec. 1. Wisconsin. Const., Amend. IV, § 31. Wyoming. Const. 1889, art. Ill, sec. 27; Const. 1899, art. 13, § 1. Uniform system. A constitu- tional provision that "the leg- islature shall establish but one ' system of town and county gov- ernment which shall be as nearly uniform as practicable," declared mandatory. State ex rel. v. Rlor- dan, 24 Wis. 484; State ex rel. v. Dousman, 28 Wis. 541; Land, Log & Lumber, etc., Co. v. Brown, 73 Wis. 294; Lafayette v. Jenners, 10 Ind. 70. A constitutional provision that general laws shall be passed un- der which cities and towns may be chartered and their charters amended and under which corpo- rations may be created and their acts of incorporation altered, held to require merely the passage of 304 Municipal, Coepoeations. §126 la-ws conferring additional powers,*" or changing the charters of those existing.*^ Thus the Constitutions of California and Washington provide that corporations for municipal purpose shall not be created by special law; but the legislature, by general law, shall provide for the incorporation, organization and classification, in propor- tion to population, of cities ancj toAvns, which laws may be altered, amended or repealed.*^ The Congress has prohibited territorial legislatures from granting private or special charters or privileges to bodies corporate for mining, manufacturing and other business enterprises, and this act has been con- strued to include municipal corporations.*^ In addition the statutes of the United States provide "that the legislatures of the Territories of the United States now or hereafter to be organized shall not pass local or spe- uniform general laws prescribing the mode by which municipal charters , may be created and amended and not to require that such general laws shall actually contain the entire contents of mu- nicipal' charters or amendments thereof. Tazoo City t. Lightcap, 82 Miss. 148, 33 So. 949. Where a constitution provided that corporations may be formed under general laws, and that the legislature shall provide for the organization of cities it amounts merely to directions for the ex- ercise of an authority which had been restricted by a former con- stitution and not to grants of power. Bank of Cheango v. Brown, 26 N. Y. 467. 40. State ex rel. v. Cincinnati, 20 Ohio St. 18; Atkinson v. M. & C. R. R., 15 Ohio St. 21; Welker V. Potter, 18 Ohio St. 85; Clegg V. School District, 8 Neb. 178; Dundy v. Richardson County, 8 Neb. 508; Gilmore v. Norton, 10 Kan. 491; In re City of Council Grove, 20 Kan. 619. 41. California. People v. Mc- Padden,' 81 (Cal. 489, 29 Am. & Eng. Cas. 37. lUinois. Guild v. Chicago, 82 111. 475; People v. Cooper, 83 111. 585; Devine v. Cook County, 84 111. 590; Fuller t. Heath, 89 111. 296; People v. GranviUe, 104 in. 285; Covington v. East St. Louis, 78 111. 548. Iowa. Ford v. North Des Moines, 80 Iowa 626, 45 N. W. 1031; Von Phul V. Hammer, 29 Iowa 222. Kansas. Wyandotte v. Wood, 5 Kan. 603. New Jersey. Pell v. Newark, 40 N. J. L. 550. 42. Const. Cal. 1880, art. XI, sec. 6, as amended Nov. 3, 1896; Const. Wash., art. 13, § 1, art. XI, sec. 10. 43. Seattle v. Yesler, 1 Wash. Ter. 571. \ §127 CoNSTiTUTioisrAL Pkovisions. 305 cial laws • • • incorporating cities, towns, or villages, or changing or amending the charter, of any town, city or village."^* § 127. Creation under constitutional provisions. "The Constitutions of Calif omia,*'Colorado,*^Minnesota,*'^ 44. U. S. Rev. St. 1 Supp., p. 503. See Rowe, Problems of City Government, ch. VI, p. 122 et seq.; Goodnow, Municipal Home Rule, p. 56 et seq. 45. California. Const., art. X, §§ 6 and 7, 8 and 8%. Provisions held self-acting and do not require legislation to give them effect. People v. Hodge, 55 Cal. 612. In California a city organized under the general municipal cor- poration laws may adopt a con- stitutional charter for its own government conformably to the Constitution. The rule that mu- nicipal corporations are subject to the control of general laws does not apply in such case. People ex rel. V. Bagley, 85 Cal. 343, 24 Pac. 716. 40. Colorado. Const. 1902, art. XX. Denver v. Adams County, 33 Colo. 1; People v. Adams, 31 Colo. 476; People v. Sours, 31 Colo. 369; Boston, etc., Co. v. Elder, 20 Colo. App. 96. 47. Minnesota. Const., art. TV, sec. 36, as amended Nov. 8, 1898. State ex rel. Barber v. District Court, 90 Minn. 457, 97 N. W. 132. Such charter may be ratified by the voters at a general or special election. State ex rel. Nichols V. Kiewel, 86 Minn. 136, 90 N. W. 160. Construction of provision : State V. O'Connor, 81 Minn. 79, 83 N. W. 1 McQ.— 20. 498; Hopkins v. Duluth, 81 Minn. 221, 83 N. W. 536; Davis v. Hugo, 81 Minn. 220, 83 N. W. 984. In that state a village desiring to become incorporated as a city and cities already Incorporated may frame their own charters. The Constitution refers to cities already incorporated , as well as those to be incorporated in the future. State ex rel. v. O'Connor, 81 Minn. 79, 83, 83 N. W. 498. The judge of the district court may In his discretion, upon pre- sentation of a petition, signed by at least ten per cent of the legal voters, or whenever the judge "shall deem it advisable for the best Interests of such city or vil- lage," appoint a board of fifteen freeholders of such city or village who shall hold office for four years. Within six months thereafter they are required to return to the chief magistrate of said city or village a draft of the proposed charter. The charter Is then sub- mitted to the qualified voters at an election, and if four-sevenths of the qualified voters voting at such election shall ratify the same, at the end of thirty days thereafter, it becomes the charter of the city. Alternate sections or articles may be submitted to the choice of the voters and may be voted on separately without prejudice to 306 Municipal Cobporations. §127 Missouri,*' Oklahoma,*' Oregon,"" and Washing- ton,"^ authorize - certain populous cities to adopt other articles or sections.. After the charter is authenticated "all courts shall take judicial notice therein." Laws of Minn. 1899, p. 462 et seg. > Adoption does not affect any right or liability, etc. All ordinances, resolutions or regulations remain in force unless inconsistent with provisions of new charter. Laws of Minn. 1899, p. 464; Con- stitutional amendment. Laws of Minn. 1897, pp. 507-509. 48. Missouri. All cities of more than 100,000 inhabitants may adopt their own charters. Mo. Const. 1875, art. IX, §§ 16 and 17. The city of St. Louis separated Itself from the county of St. Louis, constituted Itself an independent municipal corporation and adopt- ed a charter under special consti- tutional provisions. Mo. Const. 1875, art. IX, §§ 20 to 25; Ewing V. Hoblitzelle, 85 Mo. 65. See consideration of early char- ters of St. Louis, methods open for organization of city government when present charter was adopt- ed, and conditions leading to its adoption and its purpose, by the author in "Annotated Amended Charter of St. Louis" (1902), §§ 1 to 3. The legislature has no power to curtail this right. Kansas City V. Marsh Oil Co., 140 Mo. 458, 41 S. W. 943. The power granted to cities of more than 100,000 inhabitants by sec. 16, art. IX of the Missouri Constitution, is a continuing one; the power once exercised is not exhausted, but an entire new char;ter may be adopted to suc- ceed the old one adopted In the same way, or the old one may be amended. Morrow v; Kansas City, 186 Mo. 675, 85 S. W. 572. The adoption of such a charter by a city does not create of that city a political subdivision of the state. Kansas City v. Neal, 122 Mo. 232, 26 S. W. 695. The provision of sec. 16, art. 9, Mo. Const., that such charters may be amended by the acts of the in- habitants of the city "and not otherwise," Is mandatory. It for- bids the regulation of purely mu- nicipal matters by the legislature. Kansas City v. Scarrltt, 127 Mo. 642, 29 S. W. 845, 30 S. W. 111. 49. Oklahoma. Const., art. 18, i 3a. 50. Oregon. Const., art. 11, 5 12 (amendment 1906). 51. Washington. Washington Const., art. XI, sec. 10. Reeves v. Anderson, 13 Wash. 17. Section 10, article XI of Wash- ington Constitution authorizing cities of 20,000 or more inhabi- tants "to form a charter for its own government," and providing for the amending thereof, does not authorize such cities to extend their boundaries by amendment to the charter. State ex rel. v. Warner, 4 Wash. 773, 31 Pac. 25. Such cities are not thereby em- powered to provide In tieir char- ters for the creation of municipal § 127 Constitutional Provisions. 307 charters for their own government,"^ which shall always be in harmony with and subject to the Constitution and laws of the state. In California this privilege is conferred upon cities of the state containing a population of more than 3,500; in Missouri upon cities of more than 100,000 inhabitants; in Minnesota upon all cities and villages of the state, and in Washington upon cities of 20,000 or more. A board of freeholders is elected by popular vote (in Minnesota the board of freeholders is appointed by the court), whose duty it is, within a specified time after election, to prepare and propose a charter for such city w'hich is submitted to the qualified electors of the city, and, if ratified by such electors, it becomes the organic law and supersedes any existing charter and all amend- ments thereof and all laws inconsistent with the new charter."' In Minnesota it has been expressly held that the power conferred by the Constitution upon cities to frame their own charters extends to all subjects and matters properly belonging to the government of municipalities and in- cludes any subject appropriate to the orderly conduct of municipal affairs."* or police courts, all such power pare and propose the charter, shall being delegated by the Constitu- have been for at least five years tion to the legislature. In re qualified electors of the state, an Cloherty, 2 Wash. 137, 27 Pac. election of the board is not void 1064. because two of the members of the 52. Contra, In Massachusetts, board have not been qualified Larcom v. Olln, 160 Mass. 102. electors for more than five years. 53. In Missouri and IVIinnesota The remaining members of the four-sevenths of the qualified board may organize and perform voters must ratify the charter, their duties as such board. Peo- Mo. Constitution 1875, art. IX, sec. pie v. Hecht, 105 Cal. 621, 27 L. 16; Minnesota Constitution, art. R. A. 203, 45 Am. St. Rep. 96, 38 IV, sec. 36, as amended November Pac. 941. g^ 1398. 54. State ex rel. v. District ' Qualification of freeholders. Court of St. Louis County, 90 Where the State Constitution pro- Minn. 457, 460, 97 N. W. 132. vldes that the members of the See ch. 9, The Municipal board of fifteen freeholders to pre- Charter. 308 Municipal Cobporations. § 128 In California upon ratification of the charter by the qualified electors it shall thereafter be submitted to the legislature for its approval or rejection as a whole with- out power of alteration or amendment. Such approval may be made by concurrent resolution and if adopted by a majority vote of the members elected it shall become the charter of the city.^^ The Constitution of California also makes provision for the consolidation of certain cities and county govern- ments.^' A like provision exists in the Constitution of Missouri.^! § 128. Eflfect of general statutes on special charters. General statutes designed to produce uniformity and harmony in municipal government are usually prospec- tive and permissive in their operation, and, therefore, apply only to subsequent charters, and to such cities, 55. Cal. Coast. 1880, art. XI, whether the constitutional require- Bec. 8, as amended Nov. 8, 1892. ments have been compUed with. Legislative approval may be by Election without legal publication joint resolution and need not be of notice and in less than the re- by bill, signed by the governor. quired number of days after the Brooks V. Fischer, 79 Cal. 173, 21 publication, as required by the Pac. 652, i L. R. A. 429. Constitution, is void and charter These constitutional provisions so adopted is illegal. People v. are held mandatory and the mode Gunn, 85 Cal. 238, 24 Pac. 718. of procedure designated is the 56. Consolidations of county measure of power, and the acts and city of San Francisco. Kahn required to be performed are con- v. Sutro, 114 Cal. 316, 46 Pac. 87, dltions precedent and necessary to 33 L. R. A- 620. the validity of the charter. The 57. Const, of Mo. 1875, art. IX, legislature does not exercise the sec. 15. law making power in approving See article, "Home Rule for our of freeholders' charter, and can- American Cities." 3 Annals of not conclusively determine wheth- Am. Acad, of Pol. and Soc. Scl- er or not the municipal autl^orities ence, May, 1893, p. 736. "The Peo- and people in adopting the char- pie and their City Charters." ter have proceeded regularly, and, Oberholzer's Referendum in hence, the courts may determine America, ch. IV. § 128 Geneeal Law and Speoial Chaetees. 309 towns and villages already incorporated as elect to sur- render their special charters and adopt the new provis- ions. 68. California. People ex rel. V. Bagley, 85 Cal. 343, 24 Pac. 716. Jllinois. Covington v. East St. Louis, 78 111. 548 ; Chicago Packing & Prov. Co. V. Chicago, 88 111. 221, 30 Am. Rep. 545. Iowa. Decorah v. Bullis, 25 Iowa 12, per Dillon, J. Missouri. Kansas City v. Steg- miller, 151 Mo. 189, 52 S. W. 723. New Mexico. Socorro County Com'rs V. Leavitt, 4 N. Mex. 37, 12 Pac. 759. . Pennsylvania. Commonwealth V. Montrose, 52 Pa. St. 391; Har- rlsburg v. Scheck, 104 Pa. St. 53. South Dakota. Tripp v. Yank- ton, 10 S. D. 516, 74 N. W. 447. Texas. Brennan v. Bradshaw, 53 Tex. 330, 37 Am. Rep. 758. Washington. Tacoma Land Co. V. Comm. of Pierce Co., 1 Wash. 482, 25 Pac. 904. Endlich, Interp. St., sees. 228, 230. Repeal of charters or special acts by general laws. General acts ordinarily do not repeal the provisions of charters granted to municipal corporations, or special acts passed for their benefit, even though conflicting with the general acts. California. Wood v. Election Comrs., 58 Cal. 561. Connecticut. McGarty v. Dem- Ing, 51 Conn. 422. Illinois. East St. Louis v. Max- well, 99 111. 439; Covington v. Bast St. Louis, 78 111. 548, 552. loioa. Clarke, Dodge & Co. v. Davenport, 14 la. 494, 500. Louisiana. Bond v. Hlestand, 20 La. Ann. 139. Minnesota. Tiemey t. Dodge, 9 Minn. 166. Missouri. State ex rel. v. Sever- ance, 55 Mo. 378, 386. Isfew Jersey. Bodine v. Trenton,^ 36 N. J. L. 198, 201. Pennsylvania. Harrisburg v. Scheck, 104 Pa. St. 53. West Virginia. Powell v. Par- kersburg, 28 W. Va. 698, 708. Endlich, Interp. of St., sec. 228. But it is held in New Jersey that where a general statute is enacted which applies to all cities ■ without exception, and prescribes the only rule that should govern the subject, all special provisions in city charters relative thereto are repealed by the general repeal- ing clause. Bowyer v. Camden, 50 N. J. L. 87, 11 Atl. 137. Where the charter confers ex- clusive jurisdiction upon the municipal authorities over a sub- ject, it is held to operate as a re- peal of the general law relative thereto within the municipality. Siebold v. People, 86 111. 33; Ben- nett V. People, 30 111. 389; State V. Clarke, 54 Mo. 17, 14 Am. Rep. 471; State v. Binder, 38 Mo. 450; Davis V. State, 2 Tex. Ct. of App. 425. A special act giving a municipal corporation existing under a special act additional powers does not repeal by implication any of the provisions of the original 310 Municipal Coepobations. §129 Municipal corporations created under special acts can- not exercise powers provided by general law until they elect to become subject to and governed by such laws,"* unless the general statutes supersede all special char- ters and constitute the special charter cities and towns under the general incorporation law, classified accord- ing to population.*** Until they come within the pr(?visions of the general laws their charters may be amended by the legislature by general laws based upon population, applicable to such cities and towns.*^ § 129. Special chartered cities and towns may incorporate under the general laws. The Constitution of Missouri provides that "the Gen- eral Assembly shall make provision, by general law, whereby any city, town or village, existing by virtue of any special or local law, may elect to become subject to, or be governed by, the general laws relating to such corporations."®'' charter not Inconsistent with the zatlon under the general laws, later act. Goddard v. Boston, 20 Decorah v. Bullis, 25 lowk 12. Pick. (Mass.) 407. 60. Flynn v. Little Falls E. & The enactment of a general law W. Co., 74 Minn. 180, 78 N. W. 106. will not have the effect of repeal- By statute in Arkansas existing Ing a prior special provision. municipal corporations are organ- State V. Binswanger, 122 Mo. App. Ized into classes and controlled hy 78, 82, 98 S. W. 103. general laws. Arkansas Dig. of A particular provision in the Stat. (S. & H.) 1894, sec. 5123. charters of cities will overcome a 61. Rutherford v. Heddens, 82 general law on the same suhject. Mo. 388; Rutherford v. Hamilton, State T. Binswanger, 122 Mo. App. 97 Mo. 543, 11 S. W. 249; Kelly v. 78, 82, 98 S. W. 103. Meeks, 87 Mo. 396; McCormlck v. 59. Burke v. Jeffries, 20 Iowa People, 139 111. 499, 28 N. E. 1106; 145, questioning Whiting v. Mt. Andrews v. People, 75 111. 605. Pleasant, 11 Iowa 482. 62. Const. Mo. 1875, art. IX, The fact that a city elects its sec. 7; Murnane v. St. Louis, 123 officers pursuant to the general Mo. 479, 27 S. W. 711. Incorporation laws, instead of as Cities and towns containing provided by its special charter, 3,000 and less than 30,000 Inhahi- does not constitute a legal organi- tants, which shall elect to he cities § 129 Incorporation Under Generai, Laws. 311 In Iowa cities and towns having special charters may surrender them and incorporate under the general laws, with the same territorial limits, upon submitting the question to the electors of the community affected.^' So in Illinois, the statutes allow incorporated cities, towns or villages to incorporate under the general laws by a majority vote of the legal voters of any city, toAVu or village of the required population.®* So by Constitution in California "Cities and towns heretofore organized or incorporated may become or- ganized under such general laws whenever a majority of the electors voting at a general election shall so deter- mine, and shall organize in conformity therewith; and cities and towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, except in municipal affairs, shall be subject to and controlled by general laws."*^ The identical provision exists in the Constitution of Washington. In that state it is held that this law merely limits the legislature in its dealings with municipal cor- porations to a system of general laws applicable to all, instead of the system of no system through special laws theretofore prevalent ; and it does not even permit exist- of the third class, shaU be cities Mere Irregularities In effecting of the third class. 2 R. S. Mo. the change do not Invalidate it. 1899, sec. 5252. Des Moines v. Casady, 21 Iowa So cities and towns of five hun- 570. dred and less than 3,000, and all 64. 1 Starr and Curtis, Annot. towns under special charters of Illinois Statutes (2d Ed.), pp. 675- less than five hundred inhabitants, 677. "which shall elect to be cities of 65. Const. California 1880, art. the fourth class, shall be cities of XI, sec. 6, as amended Nov. 3, the fourth class." 2 R. S. 1899, 1896. sec. 5253. General laws of California 63. Iowa Code, 1897, sees. 631- (Deering) 1897, p. 605 et seq.; 637; Cox v. Burlington, 43 Iowa Desmond v. Dunn, 55 Cal. 242; 612.' Matter of Guerrero, 69 Cal. 88, 10 Must follow statutory procedure Pac. 261; Ex parte Armstrong, 84 to abandon old charter and perfect Cal. 655, 24 Pac. 598; Fragley v. organization under general laws. Phelan, 126 Cal. 383, 58 Pac. 923, Decorah v. Bullis, 25 Iowa 12. 312 MuNICIPAIi COBPOEATIONS. § 130 ing special charters to be further made special and par- ticular by amendment, unless the amendments are gen- eral so as to affect an entire class; but to encourage uniformity, it provides that existing cities and towns may, without legislative compulsion, drop their special charters and take up the organization of their respective classes under such general laws as may be enacted. To do this is in no sense to destroy or disincorporate a city or town. The territory covered is to be the same. The name is continued and the people are identical.*" Under the Constitution of Wyoming special chartered corporations of that state may abandon their charters and organize under the general laws.*'^ § 130. Surrender of special charter and organizing under general laws — effect on municipal gov- ernment. Unless otherwise provided by statute, when a munic- ipal corporation surrenders its special charter and elects to be governed by the general incorporation laws applicable, or advances to a higher class, or is reduced to a lower municipal grade, all its rights, liabilities, property, suits, etc., remain unaffected by the change. All rights and property vested in the former organiza- tion become vested in the new.®® 66. State ex rel. v. New What- Illinois. Carney r. Marseilles, com, 3 Wash. 7, 9, 10. 136 111. 401, 26 N. B. 491; OIney t. Laws for organization and Harvey, 50 111. 453, 455, 99 Am. classification of cities do not affect Dec. 530; Starr & Curtis, Anno, cities with special charters. St. (2d Ed.), pp. 678, 679. Rhode V. Seavey, 4 Wash. 91, 29 Iowa. Code of 1897, §§ 631-637. Pac. 768. Kansas. Manley v. Emlen, 46 67. Const. Wyoming 1889, art. Kan. 655, 659, 27 Pac. 844. 13, § 1. Eentuaky. Frankfort v. Mason 68. Alatama. Amy v. Sehna, & Foard Co., 100 Ky. 48, 18 Ky. 77 Ala. 103, 125. Law Rep. 543, 37 S. W. 290. California. Bates v. Gregory, Massachusetts. . Higginson v. 89 C&l. 387, 26 Pac. 891; Gen. Laws Turner, 171 Mass. 586, 591, 51 N. of Cal. (Deering) 1897, p. 607. B. 172. Connecticut. Gilpin v. Ansonia, Missouri. Thompson v. Abbott, 68 ConiL 72, 35 Atl. 777. 61 Mo. 176, 177. § 130 Obganizing Undeb General Laws. 313 The Missouri statutes prescribe that all rights and property of every kind and description which were vest- ed in the local corporation under its former organization shall be deemed and held to be vested in the new cor- poration, but no rights or Kabilities, either in favor or against such municipal corporation, existing at the time of the change of organization, and no suit or prosecu- tion of any kind shall be affected by such change, but the same shall stand and progress as if no changes had been made.®® And in such case a statutory provision to this effect is commonly found: The municipal corporation shall continue as before in every respect with all former rights and obligations until the time fixed for the re- organization to take effect; and all its officers and employes shall continue to discharge the duties of their respective offices and employments and shall hold their offices and places until their successors are elected or appointed and qualified, unless the law otherwise pro- vides.'^'' While the adoption of the general incorporation law by, a municipal corporation organized under special charter repeals all inconsistent provisions of such char- New Jersey. Jersey City, etc., Wisconsin. Washburn Water St. R. Co. V. Garfield, 68 N. J. L. Works Co. v. Washburn, 129 Wis. 587, 53 Atl. 11. 73, 108 N. W. 194. New York. Rose v. Hawley, 118 United States. Shapleigh v. N. Y. 502, 510, 23 N. E. 904; Tyler San Angelo, 167 U. S. 646, 17 Sup. V. Lansingburgh, 37 N. Y. Misc. Ct. 957, 42 L. Ed. 310; Mobile v. 604, 76 N. Y. Supp. 139. Watson, 116 U. S. 289, 300, 6 Sup. Ohio. 1 Bates, Anno. St., §§ Ct. 398, 29 L. Ed. 620; Broughton 1539, 1633 to 1647; Corry v. Gay- v. Pensacola, 93 U. S. 266, 23 L.. nor, 22 Ohio St. 584; Hubbard v. Ed. 896; Illinois v. Illinois Cen- Norton, 28 OhloSt. 116; Goodalev. tral R. Co., 33 Fed. 730; Evaa- Fennell, 27 Ohio St. 426; Raymond ston v. Gunn, 99 U. S. 660. V. Cleveland, 42 Ohio St. 522. 69. Laws of Mo. 1909, p. 143, Tennesssee. O'Connor v. Mem- sec. 5. phis, 6 Lea. (74 Tenn.) 730. 70. Laws of Mo. 1909, pp. 143. Texas. White v. Quanah, Tex, 144, sec. 6. Civ. App. (1894), 27 S. W. 839. 314 Municipal Coepobations. §131 ter,'^ all ordinances and resolutions in force remain so until altered or repealed unless inconsistent with tlie law applicable to the new organization/^ § 131. Classification. Classification of municipal corporations according to population is the usual plan pursued.''^ Thus the Con- 71. Crook V. People, 106 111. 237. Consistent provisions continue In force. Chicago D. & C. Co. v. Garrlty, 115 111. 155, 3 N. B. 448; Board of Water Comm. etc. v. People, 137 111. 660, 27 N. B. 698; Hayward v. People, 145 111. 55, 33 N. E. 885. Change does not affect city charter relating to school system. Smith T. People, 154 111. 58, 39 N. B. 319. 72. Moore v. Cincinnati, 26 Ohio St. 582; Cotter v. Doty, 5 Ohio, 393; Zanesville v. Auditor, 5 Ohio St. 590; Hubbard v. Norton, 28 Ohio St. 116; Neff v. Bates, 25 Ohio St. 169. Ordinances continue in force. All ordinances, resolutions and by- laws in force in any city or town when it shall organize under gen- eral incorporation laws shall con- tinue in force and effect until re- pealed or amended, notwithstand- ing such change of organization; and the making of such change shall not be construed to effect a change in the legal identity, as a corporation, of such city or town. 1 Starr & Curtis, 111. Stat. (2d Ed.), p. 679. The provision is Intended to continue in force ordinances adopt- ed under special charters which could lawfully be enacted under the general law. Cairo v. Bross, 101 111. 479, 9 111. App. 406; Law V. People, 87 111. 385. Charter repeals by implication. The provisions of a municipal charter may be repealed by impli- cation by constitutional provis- ions, but only when they are In- consistent. Cass V. Dillon, 2 Ohio St. 607; Fosdick v. Perrys- burg, 14 Ohio St. 473, 479. Where a municipal corporation adopts the provisions of the gen- eral incorporation act such pro'- visions do not affect the provis- ions of Its former special charter not inconsistent with or repug- nant to the provisions of the gen- eral law. People ex rel. v. Hum- mel, 215 111. 71, 74 N. E. 68, 78. 73. Idaho. State ex rel. v. Steunenberg, 5 Idaho 1, 45 Pac. 462. Illinois. Northwestern Univer- sity V. Wilmette, 230 111. 80, 87, 82 N. E. 615; Eugene L'Hote v. Milford, 212 111. 418, 72 N. E. 399. Iowa. Eckerson v. Des Moines, 137 la. 452, 115" N. W. 177. Kentucky. Green v. Com., 95 Ky. 233, 16 Ky. L. Rep. 161, 24 S. W. 610. "Nebraska. State ex rel. v. Bab- cock, 25 Neb. 709, 41 N. W. 654. New Jersey. State ex rel. v Hoagland, 51 N. J. L. 62. § 131 Classification op Munioipai. Cobpobations. 313 stitution of Missouri prescribes that "the General As- sembly shall provide by general laws for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall pos- sess the same powers and be subject to the same restrictions.'"* The limitations of the Missouri Constitution respect- ing the number of classes of cities relate only to those which the legislature is authorized to create. It has no application to those authorized to be created by the in- habitants under the Constitution.'^^ Special charter cities constitute a class of themselves.''* In substance, this provision exists in the Constitution of many states,'^'' and was designed to put an end to spe- Ohio. Gentscli ▼. State, 71 Ohio St. 151, 72 N. E. 900. Pennsylvania. Kilgore v. Ma- gee, 85 Pa. St. 401; Wheeler v. Philadelphia, 77 Pa. St. 338; Beltz V. Pittsburg, 26 Pa. Super. Ct. 66. Utah. People v. Page, 6 Utah 353, 23 Pac. 761. The legislature has power to classify, according to population, and courts will not interfere. People ex rel. v. Henshaw, 76 Cal. 436; Pritchett T. Stanislaus Coun- ty, 73 Cal. 310. The population may be estimat- ed from the last census. State v. Ramsey County Dist. Ct., 84 Minn. 377, 87 N. W. 942. 74. Mo. Const. 1875, art. IX, § 7. Also Const. Wyoming 1889, art. 13, f 1. 75. "It is to be observed that the limitation of the number of classes to four applies only to those which the legislature is authorized to create. On its face It is evident that the framers of the Constitu- tion did not intend to destroy those cities then existing by local or special laws, but expressly gave them the option to continue un- der their special charters, or to 'elect to become subject to be gov- erned by the general laws relat- ing to such corporations.' Accord- ingly it has been uniformly held by this court that the charters of these cities existing under laws passed prior to the Constitution of 1875 may be amended by general laws based on population applica- ble to those cities." Kansas City V. StegmUler, 151 Mo. 189, 52 S. W. 723. 76. Ulbrecht v. Keokuk, 124 la, 1, 97 N. W. 1082; Rutherford v. Heddens, 82 Mo. 388; Rutherford V. Hamilton, 97 Mo. 543; Kelly v. Meeks, 87 Mo. 396. 77. Art. 12, sec. 5, Kan. Const., "provisions shall be made by gen- eral law for the organization of cities, towns and villages." 316 Municipal Cobpoeations. § 131 oial legislation, however disguised in relation to tlie municipal powers of cities and towns/^ and thus, in connection with other constitutional provisions, prevent legislative interference with municipal affairs, as fully- treated in the chapter on legislative control.''' In Arkansas municipal corporations are : Cities of the first class, cities of the second ^lass, and incorporated towns.*" In Iowa municipal corporations are divided into cities of the first class and cities of the second class and towns, Town sites platted and unincorporated are known as villages.®^ In Missouri: The cities are divided into four classes, namely, first, containing 100,000 inhabitants or more; second, containing 30,000 and less than 100,000; third, containing 3,000 and less than 30,000, "which elect to be cities of the third class," and fourth, containing' 500 and less than 3,000, and all towns existing under any special law, and having less than 500 inhabitants, "which elect to be cities of the fourth class." Villages are unincor- porated towns, containing less than 500 inhabitants.®^ Kentuclcy. Kentucky Const. Murphey, 89 Cal. 522, 26 Pac. 1S91, § 156. 1081; People v. Henshaw, 76 Cal. Nebraska. State v. Palmer, 10 436, 18 Pac. 413. Neb. 203, 4 N. W. 965. 79. Chapter 4. New Jersey. Wood v. Atlantic Where th* classification adopt- Clty, 56 N. J. L. 232, 28 Atl. 427. ed has no real basis, and the legis- Ofiio. < Hayes v. Cleveland, 55 lation is founded on distinctions Ohio St. 117, 44 N. E. 518. which do not arise from substan- UtaJi. People v. Page, 6 Utah tial differences, It is unconstitu- 353, 23 Pac. 761. tional. Attorney General v. An- Washington. Rhode v. Seavey, glesea, 58 N. J. L. 372, 33 Atl. 971. 4 Wash. 91, 29 Pac. 768. The classification provided in Wyoming. Const. 1899, art. 13, the Constitution of California is 5 1. one that will include all cities and 78. St. Louis V. Dorr, 145 Mo. towns of the state. Desmond v. 466, 46 S. W. 976; St. Louis v. Dunn, 55 Cal. 242. Humane, 123 Mo. 479, 27 S. W. 80. Ark. Dig. of Stat. (S. and 711; Ward V. Boyd, Paering Co., h.) 1894, sec. 515. 79 Fed. 391, affirmed in 85 Fed. 81. Iowa Code 1875, sec. 638. 27; Rauer v. Williams, 118 Cal. 82. 2 R. S. Mo. 1909, sees. 8524- 408, 50 Pac. 691 ; Darcy v. San Jose, 8528. 104 Cal. 642, 38 Pac. 500; Cody v- § 131 Classification of Municipal Coepoeations. 317 In Ohio imiiiicipal corporations are divided into cities, villages and hamlets. Cities are divided into two classes, first and second. Cities of the first class are divided into three grades, first, second and third. Cities of the sec- ond class are divided into seven grades, first, second, third, third a, third h, fourth and fourth a. Cities of the second class Which become cities of the first class con- stitute the fourth grade of the latter class. Villages which become cities belong to the fourth grade of the second class.** In Washin^on municipal corporations are divided into cities and towns; cities are divided into three classes — first, second and third.** The reason for classification is that it would be practi- cally impossible to enact general laws which can always be applied beneficially to all of the cities of the state.*^ In addition to the classification of cities into the first, second, third and fourth classes, as above mentioned, municipal corporations may be towns, villages or ham- lets,*^ and boroughs exist in a few states.*^ 83. 1 Bates' Anno. Ohio St., 144, 37 N. W. 609; Hyde Park v. sec. 1546; State ex rel. v. Baker, Borden, 94 III. 26; Mendenhall v. 55 Ohio St. 1. Burton, 42 Kan. 570, 22 Pac. 558; Classification held valid. State Evart v. Postal, 86 Mich. 325, 49 V. Brewster, 39 Ohio St. 653; N. W, 53; Port Jervls v. Port Bronson v. Oberlin, 41 Ohio St. Jervis 1st N. Bk., 96 N. Y. 550; 481; Marmet v. State, 45 Ohio St. Green City v. Holsinger, 76 Mo. (jg ' App. 567; Winooskl v. Gokey, 49 This method was adopted in Vt. 282; Pine City v. Munch, 42 1880 State ex rel. v. WaU, 47 Minn. 342, 6 L. R. A. 763, 44 N. Ohio St. 499. W. 197. 84. Code of Washington 1896, Hamlet. 1 Bates Anno. St. , ]^j'21 et seq. Ohio, § 1536; State v. Mitchell, 12 85 § 197 post. Ohio Cir. Dec. 288, 22 Ohio Cir. Se! State ex rel. v. Mitchell, 22 Ct. 208. Ohio Cir. Ct. 208. 87. Ridley Park v. Citizens "A village Is a municipal cor- Electric L. & P. Co., 9 Pa. Super, poration although of the lowest Ct. 615, 7 Del. Co. 395; In re Mill- grade." Wahoo V. Reeder, 27 Neb. ville Borough, 10 Pa. Co. Ct. 321; 770, 43 N. W. 1145; Poncav. Craw- Tuttle v. Washington (1902), 52 ford, 23 Neb. 662, 8 Am. St. Rep. Atl. 1101. 318 Mtjnioipal Ooepobations. § 132 The word "towli" is commonly used to include almost every character of municipal government from a city to a village or hamlet,** embracing the whole range of bodies corporate, less than counties, established for local government.*® § 132. Advancement and reduction in class or grade. Statutes dividing cities into different classes usually provide a way by which a city may determine the class to Which it belongs, and the necessary steps to be taken ,to advance from a lower to a higher class.*" In Kentucky the legislature assigns the city to the (jlass to which it belongs. The courts cannot take the city out of such class because it has not the requisite population.®^ Some statutes of their own force advance or reduce the class or grade of cities and towns.®* Thus change of class by increase of population takes place in Iowa by virtue of statute.®' So in Nebraska each village in the state when it contains the population required by the statute becomes a city of the second class without any action on its part.®* 88. Flinn t. State, 24 Ind. 286; 90. People v. Page, 6 Utah State V. Guttenberg, 62 N. J. L. 353, 23 Pac. 761; State ex rel. v. 605, 609, 43 Atl. 703; State ex rel. Steunenberg, 5 Idaho 1, 45 Pac. V. Parsons, 40 N. J. L. 1, 4; Stout 462. T. Glen Ridge, 59 N. J. L. 201, 35 91. Green v. Commonwealth, Atl. 913; Brown v. Grangeville, 8 95 Ky. 233, 24 S. W. 610; Com. v. Idaho 784, 71 Pac." 151. Rose, 105 Ky. 326, 20 Ky. L. Rep. 89. Brown v. Union, 62 N. J. 1220, 49 S. W. 29. L. 142, 40 Atl. 632; People v. 92. State ex rel. v. Babcock, 2b Pike, 197 111. 449, 64 N. B. 393; Neb. 709, 26 Am. & Eng. Corp. Smithville v. Lee County D. Cas. 526; People v. Page, 6 Utah Comrs., 125 Ga. 559, 54 S. B. 539. 353, 23 Pac. 761. Town or borough, in England 93. Iowa Code 1897, §S 639, originally meant the same thing, 640. namely, a collection of habita- 94. Compiled Stat, of Nebr. tions enclosed with a hedge or 1903, ch. 14, art. 1, sec. 1; State fence. Brady on Cities and Bor- ex rel. v. Northup, 79 Neb. 822, oughfl (2nd Ed., London, 1722), 113 N. W. 540. p. 2. § 132 Change in Class or Gteade. 319 But ordinarily, general laws relating to the classifica- tion of cities and the method of passing into another class do not execute themselves. In addition to the prescribed population, certain legal steps are required on the part of the municipality which desires to avail itself of the charter applicable to the class it wishes to enter. Thus in Ohio, a city of the second class does not become of the first class upon increase of population ipso facto, but remains in its former class unless the steps required by the statutes have been taken. The population necessary only furnishes the ground for au- thority in such city to become a city of the first class by complying with these provisions,®® In that state it is essential that the legislative body of a city declare by a two-thirds vote of all its members the expediency of changing its grade before it can advance to a higher grade.'* So in Ohio a city of the second class may surrender its corporate rights and be reduced to a village on a ma- jority vote of the electors. If carried, the officers of the old corporation continue in office until the next general election and until the officers of the new corporation are elected and qualified; and the wards of the city remain the same and the ordinances thereof continue in force until changed or repealed by the council of the new corporation, except so far as such ordinances may be in- consistent with the provisions relating to villages. The rights and liabilities remain unaffected. Villages may surrender their corporate rights or be reduced to ham- lets, and hamlets may surrender their corporate rights.''^ 95. State ex rel. v. Wall, 47 Changing class or grade, the Ohio St. 499; Herrman v. Gin- Ohio statutes provide that general cinnatl, 9 Ohio Cir. Ct. Rep. 357; laws shall not be so construed as State ex rel. v. Maxfleld, 9 Ohio to change the class or grade of Cir. Ct. Rep^ 26. cities and towns. 1 Bates' Anno. 96. Brady v. State, 59 Ohio St. Ohio Stat., § 1546 et seq. 546 53 N. B. 63. Advance in the class of a city 97. 1 Bates Anno. Ohio Stat., from one grade or class to another sec. 1633 to 1647; Dutten v. Han- does not require passing over, or over, 42 Ohio St. 215. probationary existence, in inter- 320 Mtjnicipaij Cobpobations. § 133 In Missouri a place organized as a municipal corpora- tion can only pass to the class to wliicli its population entitled it by a vote of the inhabitants. The court can- not incorporate it as of that class, since its jurisdiction is confined to incorporation in the first instance.®® The mayor proclaims the result' of the election.^® In Washington change is effefcted by petition of free- holders to the council and at the next annual election, for city officers the electors vote on the proposition which is determined by a majority.®** As pointed out, all ordinances, on change of class or grade, continue in force unless inconsistent with the powers relating to the class or grade which the city enters, until amended or repealed.^ ORGANIZING TJNDEB GENEEAIi LAWS. § 133. Compliance with statutory provisions in general — irregularities. The statutes of most of the states contain general pro- visions under which hamlets, villages, towns and cities may be incorporated by voluntary acts of the inhabitants, and uniformly, these laws have been held constitu- tional.^ mediate grades. State ex rel. t. 25 Ohio St. 169; Hubbard v. Nor- Toledo, 48 Ohio St. 112, 129. ton, 28 Ohio St. 116. Advancing to a class, author- 2. Colorado. People ex rel." v. ized by population, is usually Fleming, 10 Colo. 553, 15 Fac. 298. accomplished by a majority vote Florida. State v. Winter Park, of the electors, submitted to them 25 Fla. 371, 5 So. 818. by ordinance. 2 Rev. Stat. Mo. Georgia. Duncan v. Toombs- 1899, sec. 5257; Perkins v. Field- boro, 81 Ga. 353, 9 S. E. 1100. Ing, 119 Mo. 149; Ohio, 1 Bates' Illinois. People ex rel. v. Salo- Anno. Ohio Stat., sec. 1619. mon, 51 111. 37. 98. State ex rel. v. Mansfield, Minnesota. State ex rel. - v. 99 Mo. App. 146, 72 S. W. 471. O'Connor, 81 Minn. 79, 83 N. W. 99. Laws of Mo. 1909, p. 142 498. et seq. Mississippi. Yazoo City v. 99a. Code of Washington 1896, Lightcap, 82 Miss. 148, 33 So. 949. § 1196 et seq. New York. Bank of Chenango 1. i 130 supra. Code of Wash- y. Brown, 26 N. Y. 467. Ington, 1896, § 1132; NefE v. Bates; § 133 Oeganizing Undek Gbnebal Laws, 321 These enactments usually prescribe in detail the method of creating and organizing cities under general laws, extending, annexing or reducing territory, con- solidating or uniting cities and towns, changing from class to class or grade to grade, surrendering corporate rights, privileges and franchises, and dissolving arid winding up municipal corporations. As a general proposition, the right to enjoy and exer- cise the franchise of a municipal corporation depends upon a compliance with the provisions of the statute which authorize the organization of such corporations f but the usual judicial view is that, substantial compli- ance with these provisions is suiBcient, hence mere irregularities, or slight departure from prescribed rules, will not invalidate the proceeding.* Thus a petition and order of incorporation is not void because of incorrect reference to statute sections." ' So where in some of the proceedings the place to be incorporated is designated as a "town," instead of a "village," the incorporation is nevertheless valid.* However, it appears that in Tennessee a strict and literal compliance with all the essential requirements or mandatory provisions of the incorporation act is neces- sary, to validate the municipal corporation, otherwise it is subject to collateral attack./ Thus where statutes require that, before making application for municipal incorporation a list of the qualified voters in the pro- posed municipality shall be made, verified and filed; that a notice of the boundaries shall be verified and published, and that no application for a charter shall 3. People V. Riverside, 66 Cal. Same rule applies In change 291; People t. Gunn, 85 Cal. 238, of corporate boundaries. 246, 24 Pac. 718; Huff v. Prewitt 5. Wardner v. Pelkes, 8 Idaho (Tex. Civ. App.), 53 S. W. 844. 333, 69 Pac. 64. 4. Ford V. North Des Moines, 6. People v. Pike, 197 111. 449, 80 Iowa 626; Hill v. Kahoka, 35 64 N. E. 393. Fed. 32; Duncan v. Toombshoro, 7. Woodbury v. Brown, 101 81 Ga. 353, 9 S. E. 1100; Omaha v. Tenn. 707; Ruohs v. Athens, 91 South Omaha, 31 Neb. 378, 47 N. Tenn. 20; Angel v. Spring City W. 1113. (Tenn. Chan. App. 1899), 53 S. W. See § 122 supra. 191. 1 McQ— 21 322 Municipal Coepokations. § 134 be filed without the certification of the sheriff, a char- ter issued on proceedings in which these requirements have not been complied with was held void. Such pro- visions were held mandatory and not merely directory.* § 134. Same — ^illustrative cases. The following cases will illustrate more fully the pre- vailing judicial view on the subject of irregularities: If the law expressly requires the incorporated terri- tory to be definitely described by metes and bounds a proper description is essential to the validity of the incorporation.® Where the statute allows incorporation when a ma- jority of the inhabitants of the territory present to the court a petition, setting put the metes and bounds, the court's action in permitting some of the signers to strike off their names,^** and to change the boundaries in the petition after it is filed invalidates the incorporation.^^ A statutory provision that an application for an elec- tion to determine whether certain territory shall be incorporated as a town shall be accompanied by a plat of the proposed town, has been held directory merely in Texas, and, henco the omission of such plat will not in- validate the incorporation.^* 8. state V. Frost, 103 Tenn. village' Is not required to be em- 685, 54 S. W. 986. braced in the application, or to 9. State ex rel. v. Tucker, 48 be attached to it; nor is there Mo. App. 531; State ex rel. v. any language used in connection Young, 61 Mo. App. 494; Wardner with it which indicates that the V. Pelkes, 8 Idaho 333, 339, 69 presentation of the plat is a con- Pac. 64. dition precedent to the incorpo- 10. Petitioners cannot deprive ration. The language is aflarm- the court of jurisdiction by with- ative in form, and in connection drawing their names. In re with that which prescribes the Old Forge, 12 Pa. Super. Ct. 359. contents of the application, ap- 11. State ex rel. v. Campbell, pears to be in aid of a descrip- 120 Mo. 396, 25 S. W. 392. tion which is sufficient in itself 12. Directory provision as to to secure the rights of all per- accompanying plat. The Court sons. It Is directory, and a fall- BaJd: "The plat of the tcrwn or ure to perform it will not defeat § 134 Organizing TJndeb Gbnbraij liAws. 323 Tlie word "commons" as used in the Missouri statute requiring that for the incorporation of a village a peti- tion must be filed with the court setting forth the metes and bounds of the village and commons, etc., means public groimds belonging or appurtenant to the vil- lage and not farm or agricultural lands in the vicinity.^^ The word "common" in an act providing for the lay- ing off of a town and incorporating a town was ad- judged in Georgia not to mean common of pasture, estovers, etc., but common in the higher sense of a common appurtenant to the town and for the advance- ment of its interests as a town.^* It has been held in Missouri that the fact a proposi- tion to incorporate as a city of the fourth class provides only one voting place may be an irregularity, where the town has four wards, but will not necessarily invali- date the incorporation.^^ Where an incorporation is void because including agri- cultural lands, it cannot be held valid as to the city proper, but is void in toto}^ tho incorporation. The purpose included. South Platte L. Co. v. was to furnish to the voters, and Buffalo Co., 15 Neb. 605. to those who may be interested, See In re Elba, 30 Hun (N. Y.) means by which they could read- 548; In re Edgewopd Borough, ily determine the limits of the 130 Pa. St. 348, 18 Atl. 646; Wood proposed incorporation." State ex ex rel. v. Henry, 55 Mo. 560. rel. V. Hoard, 94 Tex. 527, 62 S. W. 13. State ex rel. v. Small, 131 1054. Mo. App. 470, 476, 109 S. W. 1079. Contra. Huff v. Prewitt (Tex. For construction of the word CIt. App. 1899), 53 S. W. 844. "common" as used in particular Plats, filing. Failure to mark statute, see State v. McReynolds, "filed," a plat of the place to be 61 Mo. 203, 210. incorporated, at the time it is 14. Crawford v. Mobile, etc., R. presented as required by law, is Co., 67 Ga. 405, 416. cured by an order for it to be 15. State ex rel. v. West Port, marked nunc pro tunc. Appeal of 116 Mo. 582, 22 S. W. 888. Gross, 129 Pa. St. 567, 18 Atl. 557. 16. State v. McReynolds, 61 Certain lands not platted were Mo. 203, 211, 324 MuNiciPAi, Corporations. § 135 Ordinarily, statutes are construed that, want of publi- cation of the charter (although required), will not render the acts touching the incorporation invalid subsequent to ratification.^'^ § 135. Same subject. The negligent failure of the clerk to enter the order of the court authorizing the submission of the question of township organization to a vote of the people usually doe^/ not invalidate the organization, where it appears that the people vote in favor of it, and it further appears that all proceedings touching the organization are regular.^* But failure of the order of the tribunal authorized to conduct the proceedings to comply with essential statu- tory requirements, e. g., jurisdictional recitals, renders the attempted incorporation a nullity, justifying a judg- ment of ouster.^^ If the statute expressly requires a named body to in- vestigate and pass upon the petition for incorporation, which is to be referred to it by the court, and to cer- tify whether all the essential conditions prescribed by law have been followed, a mere indorsement on the peti- tion of the word "approved," signed by the foreman of the body, is not a sufficient certificate, and no legal incorporation takes place.^" So a provision directing the tribunal in its order pro- claiming the establishment of the incorporation to set out that a proper petition signed by the required number of petitioners was laid before the tribunal is not observed if such recital is wanting. This recital is jurisdictional.^^ 21. People V. Linden, 107 Cal. 94, 40 Pac. 115. Validity of incorporation re- lating to inter-communication be- tween all parts of the place incor- porated. Chicago & N. W. R. R. V. Oconto, 50 Wis. 189, 6 N. W. 607; Grunert v. Spalding, 104 Wis. 193, 78 N. W. 606. 17. Mills T, . Gleason, 11 Wis. 470. 18. People Y. Gamer, 47 111. 246. 19. State V. Bilby, 60 Kan. 130, 55 Pac. 843. 20. In re Summit Borough, ,114 Pa. 362, 7 Atl. 219. § 136 Incoeporation by Court. 325 In Michigan the reasonable rale has been declared that, in considering an application for the organization of a new township a board of supervisors is not bound by the same strict rules that apply to the admission of evidence in the courts.^^ § 136. Incorporation by court. The general doctrine that legislative power cannot be delegated to courts or to any other tribunal, board or oflScer is well settled.^' Thus the legislature cannot dele- gate to other- bodies or to private citizens the power to create municipal corporations.^* However, the courts uniformly hold, with but slight exceptions, that pre- scribing rules and regulations for the organization of municipal corporations by general law and providing means for carrying the law into effect, e. g. by conferring upon a designated court, tribunal, commission, board, or some other appropriate agency the right to ascertain and determine when the general provisions of the law are complied with so as to effect the organization of the corporation, is not in violation of the maxim delegatus non potest delegare.'''^ 22. Matthews v. Otsego Super- GaUfornia. People v. Nevada, 6 visors, 48 Mich. 587. Cal. 143. 23. Ford v. North Des Moines, Colorado. People v. Fleming, 80 Iowa 626, 630; People ex rel. 10 Colo. 553, 16 Pac. 298. V. Stout, 23 Barb. (N. Y.) 349, Iowa. Ford v. North Des 357. Moines, 80 la. 626, 631, 45 N. W. 24. Minnesota. State ex rel. 1031. V. Simons, 32 Minn. 540, 21 N. Kansas. Winfleld v. Linn, 60 W. 750. Kan. 859, 57 Pac. 549; Callen v. Tennessee. State v. Armstrong, Junction City, 43 Kan. 627, 23 Pac. 3 Snead (Tenn.) 634. 652, 7 L. R. A. 736; Huling v. Washington. Territory ex rel. Topeka, 44 Kan. 577, 24 Pac. 1110; V. Stewart, 1 Wash. 98, 23 Pac. Mendenhall v. Burton, 42 Kan. 570, 405, 8 L. R. A. 106. 22 Pac. 558; Kirkpatrlck v. Wisconsin. In re Incorporation State, 5 Kan. 673. of North Milwaukee, 93 Wis. 616, Michigan. People ex rel. v. 67 N. W. 1033, 33 L. R. A. 638. Bennett, 29 Mich. 451, 18 Am. 25. Arkansas. Foreman v. Rep. 107. .Marianna, 43 Ark. 324. 326 Municipal Coepoeations. §136 The law has been declared that the legislature may vest in a court the power to determine when the incor- poration of a community is necessary or useful,** or to determine the extent and boundaries of such municipal corporation,*^ or, even, upon petition and compliance with the laws of the inhabitants, of a town or city, to de- clare it incorporated. But such act is not regarded as leg- islative, as the court has no discretion in the matter, and it confers no power upon the town or city incorporated, which derives its powers from the general laws.** In accordance with the principle stated, statutes are valid providing that the petition signed by a majority of the inhabitants, setting forth the metes and bounds, praying that they may be incorporated, etc., shall be presented to the county court, and if the court shall be satisfied that a majority of the taxable inhabitants of , Missouri. Inhabitants, etc. v. Fox, 84 Mo. 59; Kayser v. Bre- men, 16 Mo. 88. Nebraska. Wahoo v. Dickin- son, 23 Neb. 426, 36 N. W. 813. Pennsylvania. In re Borough of Sewickley, 36 Pa. St 80; In re Edgewood Borough, 130 Pa. St. 348, 18 Atl. 346. Tennessee. Morristo'wn v. Shel- ton, 1 Head (Tenn.) 24; Heck v. McEwen, 12 Lea (Tenn.) 97. Texas. State ex rel. v. Goodwin, 69 Tex. 55, 5 S. W. 678. United, States. Hill v. Kahoka, 35 Fed. 32. See § 271 post. Delegation of legislative power. Conferring on board of freeholders the power to fix rates of ferriage is not a delegation of legislative power. Chosen Free- holders, etc. V. State, 24 N. J. L. 718, 720. Authorizing counties by legisla- tive act to subscribe to stock of rail- roads is not a delegation of legis- lative power. Lafayette, etc., R. R. V. Geiger, 34 Ind. 185. Or to subscribe to a company Incorporated for the purpose of improving the navigatTon of a river contiguous to the town. Taylor v. Commissioners, etc., 2 Jones Eq. (N. C.) 141. A legislative act conferring on courts of general jurisdiction power to annex territory to a mu- nicipal corporation, does not em- power such judicial tribunals to create corporations. State v. Leatherman, 38 Ark. 81. Enlarging limits — petition to court, etc., constitutional. Burl- ington V. Leebrick, 43 Iowa 252. 26. Foreman v. Marianna, 43 Ark. 324, 328. 27. People ex rel. v. Fleming, 10 Colo. 553, 16 Pac. 298. 28. Kayser t. Bremen, 16 Mo. 88. § 137 Incorpobation by Coubt. 327 such town have signed such petition, the court shall de- clare such city or town incorporated, designating in such order the metes and bounds thereof, and thenceforth the inhabitants within such bounds shall be a body politic and incorporate, by the name and style of the city of — , or the town'of .^® When a petition containing the requisite number of petitioners is duly presented the incorporation is granted as of course. There seems to be no discretion in the court. The matter presented by a petition for incorpora- tion is in its nature administrative or ministerial rather than judicial. Such is the view of the Supreme Court of Missouri.^" So, in Tennessee, a legislative act is valid which con- fers power upon courts to create municipal corporations in accordance with the provisions of a law, fully detail- ing the method of procedure and leaving nothing to the courts except to locate and apply the act to the people of any community who may petition for it and bring them- selves within its provisions.*^ § 137. Same subject. In applying the rule under consideration it should be observed that, if the law confers upon the designated acting tribunal broad or unlimited discretion, or politi- cal rather than judicial power, as distinguished from authority to determine facts only, relating to the ques- tion, it is void, since it is clear that it contains a delega- tion of legislative power.*^ And it has been held in Washington that, an act authorizing the court to declare' a town or village duly incorporated, designating the ter- 29. R. S. Mo. 1909, § 8529. Rep. 107, It is said the power is 30. Hall V. DeArmond, 46 Mo. not In a legal sense judicial. App. 596; Woods v. Henry, 55 Mo. 31. Morristown v. Sheltdn, 1 560; Kamp v. People, 141 111. 9. Head (Tenn.) 24, distinguishing The power is judicial rather State v. Armstrong, 3 Sneed than political. Kayser v. Bremen, (Tenn.) 634. 16 Mo. 91. 32. In re Milwaukee, 93 Wis. In State ex rel. Shumway v. 616, 67 N. W. 1033. Bennett, 29 Mich. 451, 18 Am. 328 MtTNICIPAIi COBPOBATIONS. §137 ritorial limits thereof and its name, upon a petition of a majority of tlie taxable inhabitants, praying for such incorporation, where the court is satisfied that a majority of the taxable inhabitants of such town or viEage have signed the petition, is void on the ground that it is a delegation of legislative functions to a judicial court.** In Nebraska towns and villages are incorporated under general statutes by resolution of the board of county commissioners, who act, in that respect, in a ministerial capadty.** In Tennessee the acts of a chancery court in organiz- ing a corporation under the general Jaw are valid to the extent of that law, but void for any excess of powers and privileges which it undertakes to confer beyond the provisions of such law.'^ In Pennsylvania the court of quarter sessions deter- mines the question of whether a proposed borough meets the requirements of the statutes regarding incorpora- tion f^ and in the absence of abuse of discretion a deter- mination by that court as to questions of fact and ex- pediency in the incorporation is not reviewable by the appellate court.*^ Eespecting incorporations by a court the general rule usually applied is that the court in so acting acts judi- cially in a matter within its jurisdiction, and hence, its judgment authorizing incorporations can not be attacked collaterally, e. g., in a suit brought by creditors to en- force claims against the corporation.*® 33. Territory ex rel. v. Stew- Co. v. South Omaha, 78 Neb. 368, art, 1 Wash. 98, 8 L,. R. A. 106, 110 N. W. 1007. 29 Am. & Eng. Corp. Cas. 22. 35. Heck v. McEwen, 12 Lea Compare cases in prior section, (80 Tenn.) 97. also, State v. Stout, 58 N. J. L. 36. In re Alliance Borough, 19 598, 33 Atl. 858; People v. Nevada, Pa. Super. Ct. 178. 6 Cal. 143; Shumway v. Bennett, 37. In re Edgeworth, 25 Pa. 29 Mich. 451, 18 Am. Rep. 107, Super. Ct. 554, 559; In re La- where the question is discussed Porte, 26 Pa. Super. Ct. 333, 337. by Christiancy, J., with his usual 38. Rule applied to the incor. marked ability. poration of a place where the de- 34. Commonwealth Real Estate cree erroneously included agricul* §§ 138, 139 CoNOUEKENT PowEB TO Incobpobate. 329 § 138. Separate bodies possessing concurrent jurisdic- tion. In cases wliere concurrent jurisdiction is given to two or more bodies to take charge of the proceedings of the incorporation, in event of conflict of jurisdiction, the clear principle of jurisprudence is applicable that when there exists two tribunals possessing concurrent jurisdic- tion of the subject-matter involved the jurisdiction be- comes exclusive in the one before which proceedings were first instituted, and which thus acquires jurisdiction of the subject. Thus, under a particular statute, a board of county commissioners possessed power to entertain a petition for the incorporation of a town, grant a hearing thereon, hold an election and declare the town incorporated. An- other statute authorized the conunon council of a city to annex adjoining territory. The board of commissioners by proper proceedings which were regular in all essen- tials acquired jurisdiction over a given territory, but the proceedings were incomplete. Afterwards the common council attempted to annex adjoining territory, being the same as that before the commissioners. It was held that the jurisdiction of the commissioners over the ter- ritory in question was exclusive, and that the common council had no power to act in the premises.** § 139. Necessary steps to incorporate. Although the statutes relating to incorporation of com- munities vary, particularly in details, certain prescribed acts or steps are common to all. Thus, the first step re- quires a petition or application, reciting the purpose to incorporate and containing the allegations designated in the law which is to be signed by named persons or quali- fied electors, and addressed to the court or tribunal em- tural lands not subdivided Into 39. Taylor t. Fort Wayne, 41 town lots. Hill V. Kahoka, 35 Ind. 274. Fed. 32. See S 280 post. 330 Municipal Coeporations. §140 powered to act. The second step is usually a notice of the pendency of the proceedings and the time set for the hearing, or the day fixed for the election, in event an election is required. If an election is required the third step is the holding of such election pursuant to law; or, if no election is necessary, the third step is the hearing of the petition or application hy the court or tribunal possessing jurisdiction. The fourth, and usually the last step, is the promulgation of the judgment of the court or tribunal, or the proclamation on the part of a named officer of the result of the election whep an elec- tion is required. Some statutes require the filing of a certificate, by a named officer. § 140. Same — statutory provisions. Some statutes fix definitely the extent of the territory and prescribe the number of inhabitants necessary to incorporate.*" Thus, for example, in Illinois, an area of contiguous unincorporated territory, not exceeding four square miles, containing a population of not less than one thousand inhabitants, may become incorporated as a city by petition to the county court, signed by fifty legal voters thereof, defining the boundaries of the pro- posed city, stating the number of the inhabitants, etc. The question of incorporation is submitted by the court to the people of the territory, on notice, at an election, and if a majority of the votes cast shall be for city organi- zation the city is thereby created.*^ 40. Illinois. People ex rel. v. Discretion of legislature. The Marquiss, 192 lU. 377, 61 N. E. 352. legislature of Georgia may decide Kansas. State ex rel. t. Bilby, when a locality has a sufficient 60 Kan. 130, 55 Pac. 843. number of Inhabitants to entitle Missouri. State v. Lichte, 226 it to be incorporated as a city. Mo. 273, 126 S. W. 466. And its discretion in this regard New York. In re Elba, 30 Hun is not controlled by any constltu- (N. Y.) 548. tional limitation. Mattox v. State, Wisconsin. State ex rel. v. 115 Ga. 212, 41 S. E. 709. Lammers, 113 Wis. 398, 86 N. W. 41. 1 Starr & Curtis Anno. 111. 677, 89 N. W. 501. Stat. (2d Ed.), p. 677. §140 Steps in Incorporating. 331 In Tennessee any part of any county, not included mthin any municipality, may be incorporated if any number of legal voters over fourteen, being freeholders and residing witMn the territory proposed to be incor- porated, apply for a charter.*^ The statutes usually confer upon a majority of the qualified electors the power of final decision as to incor- poration.** In Illinois any city may become incorporated under the general laws. One-eighth of the legal voters of the city present a petition to the mayor and council, and, after due notice, the question is submitted to the legal voters. In like manner incorporated towns or villages of one thousand may become incorporated as cities.** "Laid off" or "laid out." A town or addition is "laid off" or "laid out," when it is surveyed or measured and marked upon the ground. Meacham v. Seattle, 45 Wash. 380, 386-387, 88 Pac. 628. 42. Shannon's Code, sec. 1811 et seg. Equity will not restrain the requisite number of freeholders from incorporating. Raucher v. Forest, Tenn. , 53 S. W. 318. The application must he made as the law preF.crihes, otherwise he incorporation is void. Angell v. Spring City (Tenn.), 53 S. W. 191. 43. Code of Washington 1896, § 1110 et seg.; General Laws of Cal. (Deerlng) 1897, p. 603 et seg.; Civil Code of Ala. 1896, § 2937 et seg.; Iowa Code 1897, § 599 et seg. These provisions held valid. Ford V. North Des Moines, 80 Iowa 426, 45 N. W. 1031. In Pennsylvania in applications for borough charters the grand jury and court of quarter sessions have discretionary powers to de- termine all questions of fact and expediency and no appeal will lie from the decree of court. In re Osborne, 101 Pa. St. 284. In Pennsylvania a new bor- ough may be taken from a town- ship. In re West Homestead, 31 Pitts. Leg. J. (N. S.) 172. 44. 1 Starr & Curtis Anno. 111. Stat. (2d Ed.), pp. 675, 677. An election on submission by mayor alone held void. Stephens V. People, 89 111. 337. Under a township law prohibit- ing the creation of a new town of less territory than a prescribed number of square miles, where a town is divided, each part of the two towns resulting from the division must contain the requisite territory. In such case, both the towns become new ones formed from the old. Jefferson v. People, 87 111. 503. 332 Mttnicipal Cobpoeations. §141 § 141. The petition for incorporation — suflSciency. Application for incorporation is usually by written petition which is required to contain certain allegations and a prayer for incorporation, which is to be signed by a specified number of qualified persons residing within the territory to be incorporated.*^ If the law specifies that the petition shall be signed within three months immediately preceding the presen- tation to the court such fact must appear in the record, but it need not be stated in the petition.*' Where the law so requires the genuineness of the signatures to the petition must be shown by affidavits.*'^ In order to comply with a statutory requirement that the petition shall be signed by a majority of the free- holders residing within the territory affected, the record 45. California. People v. Berk- ley, 102 Cal. 298; Page v. Board of Supervisors, 85 Cal. 50, 24 Pac. 607. Illinois. People v. Marquiss, 192 111. 377, 61 N. E. 352; Vance v. Rankin, 95 111. App. 562. Indiana. Indiana Imp. Co. v. Wagner, 138 Ind. 658, 38 N. B. 49; State v. Hertsch, 136 Ind. 293, 36 N. E. 213. Iowa. Ford v. North Des Moines, 80 Iowa 623, 45 N. W. 1031. Kansas. State v. Sillon, 21 Kan. 207. Minnesota. State v. Red Lake Co. Comrs., 67 Minn. 352, 69 N. W. 1083. Missouri. State v. Fleming, 147 Mo. 1, 44 S. W. 758; Burnes V. Bdgerton, 143 Mo. 563, 45 S. W. 293; State v. Campbell, 120 Mo. 396, 25 S. W. 392; State v. Jen- kins, 25 Mo. App. 484. Nebraska. State v. Dimond, 44 Neb. 154, 62 N. W. 498. New Jersey. Glen Ridge v. Stout, 58 N. J. L. 598, 33 Atl. 858; State ex rel. v. Ocean Beach, 48 N. J. L. 375, 5 Atl. 142. New York. In re Pine Hill, 33 N. Y. Supp. 181. Pennsylvania. In re Fleming- ton, 168 Pa. St. 628, 32 Atl. 86; In re Versailles, .159 Pa. St. 43, 28 Atl. 230; Devore's Appeal, 56 Pa. St. 163. Omission in petition. If there is a compliance with the pro- visions of the statutes relative to the incorporation of a municipal corporation the petition is not de- fective In omitting to state that there is a "town" within the pro- posed boundaries. People ex rel. V. Loyalton, 147 Cal. 774, 82 Pac. 620. 46. In re Summit Borough, 114 Pa. 362, 7 Atl. 219. 47. People v. Linden, 107 Cal. 94, 40 Pac. 115. § 141 The Petition to Incorporate. 333 must show affirmatively that the law in this respect has been followed.*® If the court finds the fact doubtful jurisdiction is thereby lost.*® If the petition is not signed by the requisite number of legal Voters the organ- ization of an incorporation thereunder is absolutely void, and a favorable vote of the people on the question of incorporation will not cure the defect, since this is a jurisdictional fact.^" A provision requiring that the petition state the num- ber of inhabitants of the locality proposed to be incor- porated "as nearly as may be," is met when the peti- tion states that "more than 500 and not to exceed 3,000 persons reside within the proposed boundaries, * * * and that the number of inhabitants therein, according to the best knowledge, information and belief of your petitioners, is about 2,000."" The petition must contain an accurate description of the boundaries of the proposed mimicipal corporation otherwise the incorporation will be void.^^ Under a statute providing that if a majority of the votes are in favor of village organization, the proposed village with the boundaries and names mentioned in the petition, shall be deemed an organized village, the vali- dity of the organization is not affected by the fact that the" notices of election and orders of the court, not specifi- 48. In re Osborne, 101 Pa. St. habitants. State ex rel. v. Jen 284; In re Old Forge, 7 Del. Co. kins, 25 Mo. App. 484. R. (Pa.) 462. West End v. State, 138 Ala. 295, 49. In re Taylorsport (Pa.) 13 36 So. 423; Atty. Gen. v. Rice, Atl. 224, 21 Wkly. Notes cases, 64 Mich. 385, 392, 31 N. W. 203. 533, Changing county lines. State v. 50. Page V. Board of Super- Board of Comm. etc., 67 Minn, visors of Los Angeles County, 85 519, 68 N. W. 767, 69 N. W. 925, 73 Cal. 50. N. W. 631. A statute which provides that 51. Borchard v. Ventura a county court may incorporate a County, 144 Cal. 10, 77 Pac. 708. village or town upon a petition of 52. Wardner v. Pelkes, 8 Idaho two-thirds of its inhabitants 333, 69 Pac. 64. means two-thirds of Its taxable in- 334 MtriTioiPAii CoBPORAnoiirs. §142 cally required by statute, contain a description of the territory in conflict "with tiiat contained in the petition."* § 142. Same — qualification of signers. If the law exacts that the petition be signed by owners of at least one-tenth of the value of the lands to be em- braced in the projected municipality, it is necessary for the petitioners to be such owners at the time of present- ing the petition."* Where the law says that the petition shall be signed by property owners, one not a property owner is ineligible to become a petitioner."" A statutory requirement that the petition be signed by "residents" and "land owners" means bona fide resi- dents and land owners."® In a case where part of the signers of a petition of incorporation of a town were not bona fide electors and land owners, as required by stat- ute, and the number of bona fide electors and land owners who signed the petition was less than the number re- quired, it was held that the court had no jurisdiction, - and the incorporation of a town based upon such peti- tion was void."'' Where statutes require a petition for the incorpora- tion of a town to be signed by thirty electors owning land and residing in the territory sought to be incorporated, persons who temporarily move into the territory for the sole purpose of participating in the election, and per- sons who accept deeds to lots as a reward for signing the 53. People ex rel. v. New, 214 54. Yard v. Ocean Beach, 48 N. in. 287, 290-291, 73 N. E. 362. J. L. 375, 5 Atl. 142. Sufficiency of petition and slg- 55. In re Pine Hill, 33 N. Y. natures thereto. People v. Pike, Suppl. 181. 197 111. 449, 64 N. E. 393. 56. People ex rel. v. Stratton, Sufficiency of designation of 33 Colo. 464, 81 Pac. 245; Page v. boundaries. Stat© ex rel. v. Board of Supervisors, 85 Cal. 50, Young, 61 Mo. App. 494; In re 24 Pac. 607. Duquesne, 147 Pa. St. 58, 23 Atl. 57. People ex rel. v. Stratton, 339; Bwing v. State, 81 Tex. 172, 33 Colo. 464, 81 Pac. 245. 16 S. W. 872. § 143 The Petition to Incobpoeate. 335 petition, are not bona fide residents and land owners within the meaning of the statute and are not entitled to sign the petition.^* Statutes often prescribe that the signers must be "freeholders." One to whom a deed to real estate has been made but not delivered before he signs a petition for the incorporation of a city is not a freeholder.'* So one who owns a vested remainder in real estate located within the limits of a proposed borough, the life estate being owned and enjoyed by another, is nbt a free- holder.^" § 143. Same — right to withdraw signatures. In Missouri it has been held that permission of the court to petitioners to withdraw their names and change the boundaries invalidates the incorporation.*^ But it appears that the rule in Pennsylvania is that after the jurisdiction of the court is attached it cannot be ousted by recantation of some of the petitioners.®^ Hence in that State, a signer of the petition cannot withdraw his name after the court has assumed jurisdiction of the proceeding.** Where the application has been referred by the court to the grand jury, as required by the law of 58. People ex rel. v. Stratton, having three hundred or more per- 33 Colo. 464, 81 Pac. 245. manent Inhabitants, Indians, not 59. West End v. State, 138 Ala. helng electors nor citizens of the 295, 303, 36 So. 423. United States, cannot be consider- 60. In re Mountville Borough, ed in calculating the necessary 31 Pa. Super. Ct. 18. three hundred permanent inhabi- Majority of taxable Inhabi- tants. In re Haines Mission, 3 tants only required to sign, iin- Alaska 588. der particular statute. State v. 61. State ex rel. v. Campbell, Wiethaupt, 150 Mo. App. 54, 129 120 Mo. 396, 26 S. W. 392. S. W. 768. 62. In re Quakertown, 3 Grants Ascertaining the number of Cases (Pa.) 203. inhabitants — Indians. Under 63. In re Flemington Borough, the act of congress (33 stat., p. 168 Pa. St. 628, 32 Atl. 86; In ra 529) providing for the Incorpo- Old Forge, 12 Pa. Super. Ct. 359. ration of any community In Alaska 336 Municipal CoRPOEATroiirs. § 144 Pennsylvania, it is too late for any of the signers of the application for incorporation to withdraw their names therefrom.** § 144. Notice of pendency of proceedings to incorporate. Some statutes require the publication of notice as to the time and place of presenting the petition for incor- poration;®^ others, that when any community desires to incorporate, notice shall be published requiring all duly qualified voters to assemble, etc., to select officers and organize a municipal corporation.** A void notice invalidates the proceedings although a majority of votes east favored incorporation.*'^ How- ever, it has been held in Pennsylvania that where per- sons objecting to the incorporation have taken actual notice of the proceedings by filing exceptions to the re- port any defect in the published notice is thereby cured.** Typewritten notices have been held to be sufficient under a statute requiring printed notices of a petition for the organization of a municipal corporation to be posted.** Touching the time of the publication of the notices, as where a law prescribes notice for a period of "not less than thirty days," the law is sufficiently complied with if there were thirty days given by excluding the first and including the last.'* 64. In re Tullytown Borough, tlon ■will be voted upon. Chicago 11 Pa. Co. Ct. Rep. 97; InreFlem- v. People, 80 lU. 496. Ington Borough, 168 Pa. St. 628, 67. State ex rel. v. Young, 4 32 Atl. 86. Iowa 561. 65. In re Osborne, 101 Pa. St. 68. In re Edgewood Borough, 284. 130 Pa. St. 348, 18 Atl. 646; In re 66. State v. Winter Park, 25 Taylor, 160 Pa. St. 475, 28 Atl. Pla. 371, 5 So. 818. 934. In Illinois the notice need not 69. State v. Oakland, 69 Kan. specify where the election will be 784, 77 Pac. 694. held, or that minority representa- 70. State v. Winter Park, 25 Fla. 371, 5 So. 818. § 145 Heaking of Application. 337 Under a statute prescribing that the notice shall he by publication "or posting," if either or both modes are used the notice is sufficients ' A monthly magazine or journal has been held not to be a newspaper within the meaning of a statute requir- ing the notices to be published in a newspaper in the townJ* § 145. Hearing of application for incorporation. As observed by the supreme court of Michigan, there are few, if any, acts of state bearing upon individuals more important than those which determine their liberty to be included in particular municipalities; and the cases are very rare in which they have not been allowed an opportunity of being heard in every step of the proceed- ing.''^ In Tesas, on application, the county court may grant an election, to determine the question of incorporation provided that satisfactory proof is made that the pro- posed city contains the requisite number of inhab- itants.''* Under this provision it has been held that a hearing is necessary. The fact that the place has been formally incorporated or that the judge is satisfied from his own knowledge that it contains the requisite number of inhabitants does not dispense with such hearing.^" Where two petitions are filed with township trustee each for a hamlet, one for a portion and the other for all 71. Borchard v. Ventura Coun- Top. (Pa.) 541; In re Springtown ty, 144 Cal. 10, 18, 77 Pac. 708. Lorough, 17 Pa. Co. Ct. Rep. 529. 72. York Borough Case, 3 Pa. 73. State ex rel. v. Bennett, Co. Ct. 514. 29 Mich. 451, 18 Am. Rep. 107; Sufficiency of notice. People Territory ex rel. v. Stewart, 1 V. Riverside, 70 Cal. 461. Wash. 98, 8 L. R. A. 106, 29 Am. & 11 Pac. 751, 9 Pac. 662; --People v. Lng. Corp. Cas. 22, 27. Snedeker, 160 N. Y. 350, 54 N. B. 74. Sayle's Civ. Stat. 1897, art 659; In re Linton, 26 Pitts. Leg. E31. J. (N. S.) 293; In re York Bor- 75. Huff v. Prewitt, (Tex. Civ. ough, 3 Pa. Co. Ct. Rep. 514; In re 7 pp. 1899), 53 S. W. 844. Eddystone Borough, 3 Del. Co. CL 1 McQ.— 22 338 Municipal Coepoeations. ^ 146 of a township, the petition first filed should be first acted upon and submitted to vote, and if the petition filed last is first acted upon, the proceedings thereunder will be null and void. Mandamus will lie to compel such trustees to proceed upon the petition first filed if they refuse to do so.^* Adjourning the hearing of a petition for the incorpora- tion of a municipality, from day to day, without fixing the hour for resuming the hearing, does not destroy jur isdiction.''^ In Pennsylvania the question of necessity or expedi- ency of incorporating a village and adjacent territory into a borough, does not depend so much upon the will of a majority of the freeholders residing outside the limits of the proposed borough, or npon the unanimous consent of those residing within the proposed lines, as it does upon the fact that the advantages to the whole people, as a community, will overbalance the disadvan- tagesJ* , § 146. Court order of incorporation. The court order or judgment authorizing the incor- poration cannot go beyond the provisions of the law; any material departure, or excess of jurisdiction, will invali- date the incorporation.''® To illustrate, it has been de- clared in Missouri that where, in its order incorporating a village, a court exceeds its jurisdiction and includes farm lands as prayed for in the petition, it renders the order void in toto.^" The order or decree must t^iow that the material re- quirements of the law applicable have been observed, in substance.*^ 76. state ex rel. v. Mitchen, 22 79. Heck v. McEwen, 12 Lea, Ohio Clr. Ct. 208. (80 Tenn.) 97. 77. People v. Linden, 107 Cal. 80. State ex rel. v. Small, 131 94, 40 Pac. 115. Mo. App. 470, 109 S. W. 1079. 78. In re Prospect Park Bor- 81. State ex rel. v. Bilby, 60 ough, 166 Pa. St. 502, 50G, 31 Atl. Kan. 130, 55 Pac. 843. 254, citing In re Millville Bor- ough, 10 Pa. Co. Ct. 321. § 147 Court Obdee : Election. 339 It is clear that when a court loses jurisdiction of a pro- ceeding to incorporate a city or town it cannot make a valid order relative thereto.** Residence of the requisite number of inhabitants is a jurisdictional fact. Recitals of the petition as to popu- lation and residence do not conclude any one, nor does the judgment of the court as to such facts. Judgment to be conclusive must decide the question and there must be jurisdiction.*^ If a mistake occurs in an order of a court incorporating a place, ordinarily it may be corrected at a subsequent term.** Review of the action of the tribunal designated to pass on question of incorporation of municipalities is usually denied.*® But it seems that, in Wisconsin, an order in- corporating a village is a final order made by the court in a special proceeding, and is appealable.*® § 147. Election on creation and change of boundaries. Laws frequently require an election to be held to be participated in by the electors of the community affected 82. In re Taylorport, 10 Pa. Pa. 284; In re Incorporation of Cas. 1, 13 Atl. 224, 21 W. N. C. La Plume (Pa.), 4 AU. 455; In re 533. Wllkinsburg Borough, 131 Pa. 83. Kamp v. People, 141 111. 9, 365, 20 Atl. 381; In re Taylor, 160 30 N. B. 680. Pa. 475, 28 Atl. 934; Appeal of 84. Woods v. Henry, 55 Mo. Atherton, Id.; In re Incorpora- 560. tion of Narberth, 171 Pa. 211, 33 85. Arizona. Territory v. Jer- Atl. 72, Appeal of Ellis, 37 W. N. ome, 7 Arizona 320, 64 Pac. 417. C. 204. Illinois. People v. Garner, 47 Texas. Word v. Schow, 29 Tex. 111. 246. Civ. App. 120, 68 S. W. 192; State Missouri. Hall v. De Armond, v. Goodwin, 69 Tex. 55, 5 S. W. 46 Mo. App. 596. 678. New Jersey. Campbell v. Wain- West Virginia. In re Town of right, 50 N. J. L. 555, 14 Atl. Union Mines, 39 W. Va. 179, 19 603. S. E. 398. Pennsylvania. In re Borough Wisconsin. In re Schumaker, of Sewickley, 36 Pa. St. 80; In rq 90 Wis. 488, 63 N. W. 1050. Quakertown, 3 Grant Cas. 203; In 86. In re Salter, 127 Wis. 677, re Incorporation of Osborne, 101 106 N. W. 684. 340 Municipal Coepobations. §147 in the creation of municipal corporations and in chang- ing their boundaries.*^ Such laws must be substantially followed, otherwise the action will be illegal;*^ for the rule always invoked is, that where the law so prescribes, a valid election is a necessary prerequisite to the legal creation of a municipal corporation;*^ hence, an elec- tion held without authority of law is a nullity.^" Slight irregularities in the conduct of the election will be disregarded by the courts, e. g., those which are of an innocent character and free from fraud and which would not change the result.^ ^ The provisions of the law with respect to notice of the election should be followed;®^ also the time of holding the election.*^ 87. state v. Honerud, 66 Minn. 32, 68 N. W. 323; State v. McFad- den, 23 Minn. 40. 88. People v. Weber, 222 111. 180, 78 N. E. 56; State' ex rel. v. Van Valen, 56 N. J. L. 85, 27 Atl. 1070. 89. Smith v. Skagit County Com'rs, 45 Fed. 725. 90. Page V. Board of Super- visors, 85 Cal. 50; People v. Churcli, 6 Cal. 76; People v. Mathewson, 47 Cal. '442; Kinfield 7. Irwin, 52 Cal. 164; People v. Harvey, 58 Cal. 337. 91. State V. Westport, 116 Mo. 582, 22 S. W. 888. Irregularity in form of ballot. People V. Hanson, 150 III. 122, 36 N. B. 998, 37 N. E. 580. Registration prior to election. People ex rel. v. Loyalton, 147 Cal. 774, 82 Pac. 620; Slate v. Blue Ridge, 113 Ga. 646, 38 S. B. 97. Election. Another proposition may be submitted at the sar^e time that the question of Incor- poration is submitted. Eckerson V. Des Moines, 137 Iowa 452, 487, 115 N. W. 177. The fact that only one voting place was provided in an entire town, in an election to determine whether it should become a city of the fourth class does not render the election invalid. In the absence of fraud or unfairness in the elec- tion. State V. Westport, 116 Mo. 582, 22 S. W. 888. Application to a county court for an election to decide on the question of incorporation which was required to be accompanied by a map or plat of the territory to be incorporated, held directory. State ex rel. v. Hoard, 94 Tex. 527, 62 S. W. 1054. Contra. Huff v. Prewitt (^ Tex. Civ. App. — (1899), 53 S. W. 844. 92. Smith v. Skagit County Com'rs, 45 Fed. 725. 93. Slate et al. v. Blue Ridge, 113 Ga. 646, 38 S. E. 997; In re Clark, 135 Wis. 437, 115 N. W. 387. §U7 Election. 341 Under some laws it is immaterial whether the ordi- nance providing for the extension of city limits is passed first or the election held first.** The vote required by the law must be secured to legal- ize the incorporation."' Thus where the law provides that a ma-jority of the ballots cast must be in favor of incorporation it is usually held to mean a majority of the votes legally cast on the proposition."* And under a law authorizing a scheme of township organization under which any county may organize "whenever a majority of the legal voters of such county voting at any general election shall so determine," the proposition is not legally adopted unless there be a majority of the legal voters voting at that election on any proposition in favor of it, notwithstanding a majority of the voters voting on that particular proposition be in favor of it."'^ 94. state v. Westport, 116 Mo. 582, 22 S. W. 888. 95. People ex rel. v. Weber, 222 111. 180, 78 N. E. 56; State v. Board of Com'rs of Red Lake Co., 67 Minn. 352, 69 N. W. 1083; Segars v. Parrott, 54 S. C. 1; State V. Parler, 52 S. C. 207; Cocke V. Gooch, 5 Heisk. (Tenn.) 294; Woodbury v. Brown, 101 Tenn. 707, 50 S. W. 743. 96. State v. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501. 97. State ex 138 Mo. 187, 3 Const., section Election authorized rel. V. McGowan, S. W. 771; Mo. , article IX. Only qualified voters to vote. State v. Weingarten, 92 Wis. 599, 66 N. W. 716. Decision of election oflBcers pre- sumed valid; appeal denied. In re Village of Sag Harbor, 32 Misc. 624, 67 N. Y. Supp. 574. Election determined by munic- ipal authorities not to be ques- tioned thereafter. People v. Gunn, 85 Cal. 238, 24 Pac. 718. Questioning election. In a proceeding In the nature of a quo warranto, to test the validity of a change from a town to a city government, after the inspector of election has certified the result to the clerk of the proper court and a suitable record thereof made by the clerk, the record is conclusive of the regularity of all previous proceedings, except as to whether a majority of the votes were in favor of the proposed change and it is too late in this proceeding to raise the point that a proper cen- sus had not been taken before the election. State v. Tipton, 109 Ind. 73, 9 N. E. 704. The city should be made a party in a proceeding to question the incorporation. People v. Gunn, 85 Cal. 238, 24 Pac. 718. Who may question. Though a nonresident, not an elector may not contest an election, held with , 342 Mtjnioipal, Coepobations. §§ 148, 149 § 148. Same — official action thereon. Laws sometimes prescribe that certain official acts shall be done by designated officers after the election has been held. The rule applicable is that, insofar as such provisions are mandatory and essential to the legal exist- ence of the corporation they must be observed in sub- stance, otherwise incorporation "will not be sustained. This is the general rule, as heretofore indicated, in the matter of substantial compliance with all mandatory statutory provisions.'* In a Tennessee case the law, in express terms, required that the certificate of the sheriff holding the election should be endorsed on the application for charter and registered with it. This was not done, and the charter was declared void. In the opinion of the court, a corpor- ation so organized does not acquire a de facto status, such as to necessitate a direct proceeding by the state to avoid its existence or its acts; that if a corporation does not exist de jure it can have no de facto representa- tion, in a case where under the statutes the charter is void; and, hence no recovery can be had on bonds issued by such corporation, since one dealing with it does so at his peril. A distinction is drawn between void and voidable charters.'® § 149. Void incorporation. A void incorporation does not confer upon the people or territory affected any of the rights or franchises of a a view to incorporating, yet Le ered a legislative function, the lat- may if he have a financial Interest ter an administrative or executive in the outcome maintain a bill in function. Fremont County Com'rs equity to restrain the carrying v. Perkins, 5 Wyo. 166, 69 N. W. into effect of a void election. 1083. Smith V. Skagit County Com'rs. 98. §§ 122, 133, 134, supra. 45 Fed. 725. 99. Ruohs v. Athens, 91 Tenn. Making or forming a county. 20, 18 S. W. 400, 30 Am. St. Rep: There is a distinction made be- 858, citing Hooper v. Rhea, 3 tween "creating and making" or Tenn. Cases 145, and Norton v. "forming" a county and "organiz- Shelby County, 118 U. S. 425. Ing" one. The former is consFd- U49 Void Incoepobatiojt. 343 municipal corporation, as where the incorporation was attempted under a void act,^ or where the order of court incorporating a town is void for uncertainty. In such case it is not necessary to bring a proceeding to disincor- porate the town before proceeding to legal incorpora- tion.2 1. Territory ex rel. v. Stewart, 1 Wash. 98; Ferguson v. Sno- homish. 8 Wash. 668, 669; Colton V. Rossi, 9 Cal. 595. How far such incorporation will be held valid, see People v. May- nard, 15 Mich. 463, 470; State ex re\ V. Dover, 62 N. J. L. 138. 2. State ex rel. v. Tucker, 48 Mo. App. 531. Void incorporation — illustra- tions. Where the act incorporat- ing a town is unconstitutional be- cause special in character, the corporation may be dissolved on information filed by the attorney- general. State V. Somers Point, 52 N. J. U 32, 29 Am. & Bng. Corp; Cas. 55. Mere lack of all necessary pow- ers will not justify a court in declaring that the municipality has no legal existence. Glen Ridge V. Stout, 58 N. J. L. 598, 33 Atl. 858. Failure to give definite boun- daries. Furrh v. State, 6 Tex. Civ. App. 221, 24 S. W. 1126. Reincorporation of defective cor- porations. Harness v. State, 76 Tex. 566, 13 S. W. 535; State v. Centralia, 8 Wash. 659, 36 Pae. 484; Pullman v. Hungate, 8 Wash. 519, 36 Pac. 483; In re Campbell, 1 Wash. St. 287, 24 Pac. 624; Medical Lake v. Smith, 7 Wash. 195, 34 Pac. 835; Medical Lake v. Landls, 7 Wash. 615, 34 Pac. 836. In Pennsylvania an appeal is in the nature of a certiorari. The judgment of the trial court on all questions of fact and expediency is final unless discretion is abused. In re Rouseville, 12 Pa. Super. Ct. 126. Void incorporation — Judd v. State, 25 Tex. Civ. App. 418, 62 S. W. 543. In one case the decree of in- corporation of a borough was made on the report of a master whom the court had no authority to appoint, but after the lapse of two years during which time the borough was fully organized, con- tracts were made, bonds issued and other liabilities incurred, it is too late to ask for a vacation of the decree. In re Morton (Pa.), 8 Del. Co. Rep. 47. Extending city limits under an unconstitutional act because of the fact that it was special legislation will not be questioned after lapse of time, when. See Ford v. North Des Moines, 80 Iowa 626, 45 N. W. 1031. Curative acts. Argyle v. Dwl- nel, 29 Me. 29; State v. Berry, 13 Wash. 708, 42 Pac. 622; Aber- nethy v. Medical Lake, 9 Wash. 112, 37 Pac. 306; Mathews v. State, 82 Tex. 577, 18 S. W. 711. 344 Municipal Cobpoeatioks. §150 § 150. Doctrine of implication. In England, as stated, corporations existed at common law or by prescription,^ and in this country it is often said, or assumed, that municipal corporations may exist by prescription or implication,^ which presupposes an authorized and legitimate creation.^ The general rule of construction that municipal cor- porations take nothing by implication has no applica- tion where the inquiry relates alone to the fact of incor- poration.^ Here the question more frequently arises in relation to corporate boundaries, extension of limits, an- nexations and consolidations, rather than with respect to the original creation of the municipality. Whether a corporation exists is mainly a question of legislative intention,'' and every intendment must be taken in favor of the sufficiency of the act of the legis- lature with a view of affecting its manifest purpose.* 3. § 120 supra; 1 Kyd. Corp. 63; 2 Kent Com. 27. 4. Trenton v. McDanlel, 7 Jones (N. C.) 107. 5. School District of Stafford Co. V. State, 29 Kan. 57; Robie v. Sedgwick, 35 Barb. (N. Y.) 319; Bassett v. Porter, 4 Cush. (Mass.) 487; Stockbridge v. West Stock- bridge, 12 Mass. 400; Sherwin v. Bugbee, 16 Vt. 439; Londonderry V. Andover, 28 Vt. 416. 6. State V. Young, 3 Kan. 445. 7. California. Dean v. Davis, Bl Cal. 406, 22 Pac. 558. Kansas. Mendenball v. Burton, 42 Kan. 570. Maine. Trustees in Levant, etc. V. Parks, 10 Me. 441. Massachusetts. Overseers, etc. V. Sears, 22 Pick. (Mass.) 122; Inhabitants, etc. v. Wood, 13 Mass. 193. New York. Demton v. Jackson, 2 John. (N. Y.), ch. 320, North- Hempstead v. Hempstead, 2 Wend. (N. Y.) 109; Thomas v. Dakin, 22 Wend. (N. Y.) 9. yermont. North Troy School Dist. v. Troy, 80 Vt. 16, 66 Atl. 1033. England. Russell v. Men of Devon, 2 T. R. 672; Conservators of the River Tone v. Ash., 10 B. & C. 349. Legislative intention must ap- pear clear. Angell & Ames on Corp., sec 79; Meyers v. Irwin, 2 S. & R. (Pa.) 368. 8. State v. Young, 3 Kan. 445. Legislative intent. "Whenever a duty is imposed, all the power necessary for its proper perform- ance is given, if not expressly, then by inevitable implication." § 150 Doctrine of Implication. 345 Municipal corporations are created for the public good; are demanded by the wants of the community; and the law, after long continued use of corporate powers and the public acquiescence, will indulge in presumptions in favor of their legal existence, and will incline to sus- tain rather than defeat them.® The supreme court of Michigan, in an early case, thus stated the doctrine: "In public affairs where the- people have organized themselves under color of law, into the ordinary municipal bodies and have gone on year after year raising taxes, making improvements, and exercis- ing their usual functions, their rights are properly re- garded as depending quite as much on the acquiescence as on the regularity of their origin, and no post facto in- quiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence the corporate standing of the com- munity can be no longer questioned."" Bessey v. Unity, 65 Me. 342; Chi- that extent constitutes them a cago, Tr. v. Chicago, 207 111. 37; corporation by implication." Steb- Hunneman v. Fire District, 37 Vt. bins v. Jennings, 10 Pick. 172, 188, 40. Per Shaw, C. J. "It is a principle of law which 9. Jameson v. People ex rel., has often been acted upon that 16 111. 257, 259, 63 Am. Dec. 304; where rights, privileges and pow- Bank of U. S. v. Dandridge, 12 ers are granted by law to a boiy Wheat. (U. S.) 64, per Story, J., of persons, by a collective name, full discussion of presumption, and there is no mode by which etc.; State ex rel. v. Huff, 105 Mo. such rights can be enjoyed or App. 854, 364, 79 S. W. 1010; Dun- powers exercised, without acting ning v. New Albany, etc. R. R. Co., in a corporate capacity, such 2 Ind. 437; Brennan v. Weather- bodies are deemed by necessary ford, 53 Tex. 330, 37 Am. Rep. Implication, to be so far corpora- 758. tlons, as to enable them to enjoy 10. People v. Maynard, 15 and exercise the rights and pow- Mich. 463, 470, per Campbell, X; ers thus granted. So when a duty People v. Curley, 5 Colo. 412. or obligation is imposed; for As to de facto corporations, see where the law gives a remedy next section 151. against an aggregate body, it As to void incorporation, see § gives a right of action, and to 1 ' 9, supra. 346 Municipal Coepobations. § 150 It has been said tliat only in event a bona fide contract cannot be otherwise enforced will the courts hold that a corporation has been created by implication." The law will presume that a corporation was duly created where it exists de facto some considerable time and exercises corporate rights.^^ So after the lapse of nearly twenty years every presumption must be in favor of the regularity of proceedings to attach certain terri- tory to a town.^* So property assessed and taxed for a period of sixty years by the city was held to be within the corporate limits by prescription.^* So, where the act of incorporation does not expressly include the in- habitants of a certain place within the city limits but leaves such limits vague and indefinite, yet if such inhab- itants considered themselves residents within the cor- porate limits and enjoyed such rights for a long period, this will be accepted by the court as a practical inter- pretation of the law, as embracing and subjecting them to police regulations.^^ And it has been held that the exercise of corporate powers over a place, with knowl- edge of the public, is a waiver of irregularities in its or- ganization and cures inaccuracies in the original survey and map, and is conclusive evidence of a charter of a cor- poration by prescription.^' 11. Blair v. West Point Pre- organization. Call v. Chadbourne, cinct, 2 McCrary. 0. 0. (U. S.) 46 Me. 206, 224. 459. 12. Rector, etc. v. Lovett, 1 See Jordan v. Cass County, 3 Hall (N. Y.) 191; House v. Greens- Dillon (U. S.) 185, 189; Justices burg, 93 Ind. 533; State eix rel. v. of Cumberland v. Armstrong, , 14 Ilauser, 63 Ind. 155; Brazil v. N. C. (3 Bev.) 284. Kress, 55 Ind. 14. Where a statute provides that 13. Sherry v. Gilmore, 58 Wis. "every school district shall, in all 324, 17 N. W. 252; Swain v. Com- cases, be presutaed to have been stock, 18 Wis. 463 ; White v. State, legally organized, when it shall 69 Ind. 273. have exercised the franchises 14. Pidgeon v. McCarthy, ■ 82 and privileges of a district for the Ind. . 321. term of one year," the presump- 15. Milne v. Mayor, 13 La. 68. tion is not conclusive, but it is 16. Worley v. Harris, 82 Ind. sufficient to overcome mere irregu- 493, 496. laritles and informalities in iti § 151 De Facto Coepoeations. 347 § 151. De facto corporations. As we have seen, a municipal corporation may exist de facto." It has been held in New Jersey that a municipal gov- ernment, organized under the act of the legislature which is subsequently adjudged to be unconstitutional, is a government de facto, its officers are officers de facto, and its authority must prevail and be respected until the attorney-general interposes by quo warranto and secures the actual ouster of removal of the incumbents in of- fice." And it has been declared in Wisconsin that an attempt, in good faith, to incorporate a town, by complying with the requirements of a valid law for the incorporation of towns, followed by its organization and entering upon the transaction of business, constitutes the town a de facto town, although there was a failure to comply with the law, which resulted in the court dissolving the town corporation. In that case the law is thus stated to be: "Whenever there is a valid law under which a corpor- ation with the powers assumed might have been lawfully incorporated and there is an attempt, apparently in good faith, to comply with the requirements of such law, and the corporation thus attempted to be created is organ- ized and enters upon the transaction of business, its ex- istence as a de facto corporation is established, even though it has failed to comply with the law in some par- ticular which prevents it .from being a corporation de jure. * * * But where there is no law, authorizing a particular corporation de jure there can be no such cor- poration de facto. * * * Where there is, appar- 17. Rector, etc. v. Lovet, 1 Hall L. 455, 68 Atl. 90, 62 Atl. 270; (N. Y.) 191; Arapahoe v. Albee, State ex rel. v. Dover, 62 N. J. L. 24 Neb. 242, 38 N. W. 737, 8 Am. 138, 41 Atl. 98. St Rep. 202; Oswego Tp. v. An- See Denver v. Spokane Palls, 7 derson, 44 Kan. 214, 24 Pac. 486; Wash. 226; People v. Maynard, 15 White v. Quanah (Tex. Civ. App. Mich. 463, 470, and section 152 1894), 27 S. W. 839. post. 18. Lang v. Bayonne, 74 N. J. 348 Municipal Cobpoeatioks. §151 ently, no attempt in good faith to comply with certain substantial requirements of the law authorizing such in- corporation: — nothing sufficient to give color to the in- corporation — the body attempted to be incorporated will not be regarded as a corporation de facto. ' ' ^^ The general doctrine has been thus broadly stated that a de facto corporation may legally perform every act which the same entity could perform were it a corpo- ration de jure. Its existence and acts are valid against all the world, even against the state except in direct pro- ceedings to arrest its usurpation of power.^" Hence, "where a reputed corporation is acting under forms of law, unchallenged by the state, the validity of its organ- ization cannot be drawn in question by private par- ties;'"*^ nor can its existence be collaterally attacked.^^ 19. Gilkey v. How, 105 Wis. 41, 45, 46, 81 N. W. 120, 49 L. R. A. 483. Rule as to de facto corpora- tion. "The rule is that where there is a law in force which au- thorizes the corporation to exist de jure, and an attempt has been made in good faith to organize under that la"w, which attempt has resulted in a formation suhstan- tially as prescribed therein, the neglect to perform some minor condition, being of interest only to the state which imposes it, can- not be taken advantage of collat- erally in ordinary suits by or against the body as a corporation. The rule is founded partly on pub- lic policy, partly on the theory that so long as the state does not Interfere its acquiescence renders the defect unobjectionable." El- liott, Mun. Corp. (2d Ed.), § 16. "Any actual organization of the municipality in ostensible posses- sion and in the exercise of mu- nicipal powers is a de facto cor- poration. Public policy requires that municipal governments should be stable existing civil institu- tions and should not be easily destroyed. This maxim applies in all its force to the extension of city boundaries as well as original incorporation of the city." Salem V. Young, 142 Mo. App. 160, 169, 170, 125 S. W. 857. Where there is no law authoriz- ing de jure municipal corpora- tions a de jacto corporation cannot exist. Guthrie v. Wylie, 6 Okla. 61, 55 Pac. 103; Blackburn V. Oklahoma City, 1 Okla. 292, 295, 31 Pac. 782, 33 Pac. 708. 20. People V. LaRue, 67 Cal. 52G, 8 Pac. 84; Back v. Carpenter, 29 Kan. 349; Omaha v. South Omaha, 31 Neb. 378, 47 N. W. 1113; Speer v. Kearney County, 88 Fed. 749. 21. Miller v. Ferris Irrigation Dist, 85 Fed. 693, 699 (above case came up in California); Dean t §152 State Eeoognition. 349 § 152. State recognition. A state may, after long acquiescence and recognition of a municipal corporation, be precluded from an in- formation to deprive it from exercising the rights ac- quired by it from the general law.^* Thus where a municipal corporation has been recognized by enact- ments of the legislature, ordinarily all inquiry into the original organization is precluded; and in such case, after long continued use of corporate powers, and the ac- quiescence of the public in them the law will indulge in presumptions in support of their legal existence.** Davis, 51 Cal. 406; Board of Edu- cation V. Berry, 62 W. Va. 433, 59 S. E. 171. 22. Hamilton v. San Diego County, 108 Cal. 273, 41 Pac. 305; Quint V. Hoffman, 103 Cal. 506, 37 Pac. 514. 23. State ex rel. v. Westport, 116 Mo. 582, 22 S. W. 888, approv- ing State V. Leatherman, 38 Ark. 81. 24. Alabama. State ex rel. V. Pell City, 157 Ala. 380, 47 So. 246, 247. Illinois. Jameson v. People ex rel., 16 111. 257, 63 Am. Dec. 304. Minnesota. State ex rel. v. Harris, 102 Minn. 340, 113 N. W. 887, 13 L. R. A. (N. S.) 533; State V. Tosney, 26 Minn. 262, 3 N. W. 345. North Carolina. Bath v. Boyd, 23 N. C. (1 Ired.) 194. Texas. McMickle v. Hardin, 25 Tex. Civ. App. 222, 61 S. W. 322. United States. Board v. Crit- tenden, 94 Fed. 613, 36 C. C. A. 418. Wisconsin. Swain v. Comstoclr, 18 Wis. 463. State recognition. Acta of the legislature, incidentally recogniz- ing a place as a town are admis- sible as evidence of reputation and also as evidence of the consent of the legislature to the exercise of the powers of a town. Bow v. Allenstown, 34 N. H. 351, 69 Am. Dec. 489. The incorporation. If irregular, may be legalized by the legisla- ture. State (Lee) v. Thief River Falls, 76 Minn. 15, 78 N. W. 867. "It is universally affirmed that when a legislature has full power to create corporations, its act recognizing as valid a de facto corporation, whether private or municipal, operates to cure all de- fects in steps leading up to the organization, and makes a de jure out of what before was only a de facto corporation." Comanche v. Lewis, 133 U. S. 198, 202, per Mr. Justice Brewer. I.,egislative recognition will give validity to its dealings with third persons when, — see Harper Com- missioners V. Rose, 140 U. S. 71. Recognition of legislature held insufficient in particular caaos. 350 Mui^ICIPAL COBPOEATIONS. § 152 So where the boundaries of a town had been defined by ordinance, and as thus defined the town authorities claim and exercise jurisdiction, a subsequent act of the legislature recognizing the corporate existence of the town will operate to confirm such claim as well as other matters of jurisdiction.^' So where no charter or act of^ incorporation of a town can be found, the annexation of other territory to the town by act of the legislature, by implication, constitutes it a town, although not so prior.^^ So an act of the legislature granting to a town speci- fied lands for town commons, ipso facto constitutes such town a body politic and corporate for the purposes of such grant, notwithstanding it may not have been such before.^^ And, finally it has been held that, where powers and privileges are granted by the legislature to the inhab- itants of a certain place, and it appears that they cannot be enjoyed or exercised, and thus the object intended cannot be accomplished without acting as a corporation, an incorporation to such extent is created by implication. In such case, the intent of the legislature can be shown constructively as well as expressly.^* But state recognition does not follow from the mere action of the secretary of state in placing the name of a village on the list of incorporated villages so as to ren- der it a regularly organized village.''* So using the petition presented to the court for incor- porations by the state's attorney, to identify the record and to contradict the recital does not bind the state.^" Medical Institution of Geneva v. 27. Bath v. Boyd (1 Ired.), 23 Patterson, 1 Denlo (N. Y.) 61; N. C. 194. Oroville, etc. Railroad Co. v. Pll- 28. State ex rel. Broking v. Van mas County, 37 Cal. 354; Virginia Valen, 56 N. J. L. 85, 27 Atl. 1070; City V. ChoUar Mining Co., 2 Nev. | 150 supra. 86. 29, Carlett v. People, 151 111. 25. People v. Parnham, 35 111. 16. 562, 567. 30. Kamp v. People, 141 lU. 9, 26. Bow V. Allenstown, 34 N. 30 N. B. 680. H. 351, 69 Am. Dec. 489. § 153 Acceptance of Chaetek. 351 So, the passage by the legislature of a void law for the purpose of legalizing attempted incorporations or em- powering the inhabitants to reincorporate, will not be construed as a legislative recognition of such municipal corporations;^^ because "an unconstitutional act is not law; it confers no rights; it imposes no duties; it affords no protection; it creates no ofiSce; it is, in legal contem- plation, as inoperative as though it had never been passed. "^^ But it has been held in New Jersey that a municipal corporation created under an unconstitutional law is a de facto corporation and it may exercise the functions of a municipal corporation as completely as if created under a valid law until the state by direct proceedings terminates its existence. And further that an officer ap- pointed under an unconstitutional statute to fill an office, is a de facto officer, and his acts done prior to a judicial decision that the statute is unconstitutional are valid so far as they involve the interests of the public, and third persons.^' Where an attempt is made to incorporate under a statute which proves to be void, the legislature may by curative act declare the incorporation valid.^* § 153. Acceptance of charter. In England royal charters conferring additional fran- chises and privileges on existing communities only be- came operative when accepted by the inhabitants con- cerned.^"* The king could not compel acceptance.** But 31. Denver v. Spokane Falls, man v. Hungate, 8 Wash, 519, 36 7 Wash. 226; but see State ex rel. Pac. 483. V. Dover, 62 N. J. L. 138; People 35. Willeock, Mun. Corp. 30; V. Maynard, 15 Mich. 463, 470. King v. Amory, 1 Term Rep. 572. 32. Norton v. Shelby County, 118 Acceptance of Royal charter is U. S. 425, 442, per Mr. Justice now contemplated in England. Field. 45 and 46 Vict., c. 50, Part XI, 8 33. Lang v. Bayonne, 74 N. J. 216. L. 455, 68 Atl. 90, 62 Atl. 270. 36. Paterson v. Useful Manu- 34. Wlnneconne v. Winneconne, factures Society, 24 N. J. L. 385, 111 Wis. 13, 86 N. W. 590; Pull- 397; People ex rel. v. Bennett, 29 Mich. 451, 18 Am. Rep. 107. 352 Municipal Coepoeations. §153 rminicipal charters granted by Parliament were binding without acceptance.^' So, in this country acceptance of the act of incorporation upon the part of the community is unnecessary unless so provided.** In the absence of constitutional restrictions, municipal corporations may be absolutely created by the act of in- corporation, without the consent or acceptance of the in- habitants, or any act on their part.** The charters or laws which establish and regulate municipal corpora- tions are not contracts.*" And this rule applies equally 37. Willcock, Mun. Corp. 25. S8. Gorham v. Springfield, 21 Me. 60, 61; State v. Haines, 35 Oregon 379, 58 Pac. 39. "The creation of a municipal corporation depends in no degree, Upon the assent or dissent of the inhabitants of the particular lo- cality, unless such a condition be contained in the law of its crea- tion." People ex rel. t. Wren, 5 111. 269, 275; Greenl. on Ev., sec. 331. 39. New Hampshire. Berlin v. Gorham, 34 N. H. 266, 275. Illinois. People v. Wren, 5. 111. 269. Iowa. Morford v. Unger, 8 Iowa 82, 88. Kentucky. Smith v. Crutcher, 92 Ky. 586, 18 S. W. Rep. 521; Cheaney v. Hooser, 48 Ky. 330. Maryland. County Com'rs v. Bladensburg, 51 Md. 465. Montana. People ex rel. v. Butte, 4 Mont. 174, 207, 47 Am. Rep. 346. Ohio. Hamilton County v. Mig- hels, 7 Ohio St. 109. Texas. Blessing v. Galveston, 42 Tex. 641. The charter of a public or quasi corporation, as a lire district, un- der laws of Rhode Island is bind- ing without acceptance. Wood v. Quimbly, 20 R. I. 482, 487, ap- proving Berlin v. Gorham, 34 N. H. 266. See 1 Andrews, American Law, § 394. 40. Connecticut. Hewison v. New Haven, 37 Conn. 475, 9 Am. Rep. 342. Indiana. State ex rel. v. Kol- sem, 130 Ind. 434, 437, 29 N. E. 595, 14 L. R. A. 566; Sloan v. State, 8 Bl'ackf. 361. Maine. North Yarmouth v. Skillings, 45 Me. 133, 141, 71 Am. Bee. 530. Maryland. Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572. Missouri. Watson Seminary v. Pike County, 149 Mo. 57, 45 L. R. A. 675. Rhode Island. Smith v. West- cott, 17 R. I. 366, 368, 22 Atl. 280, 13 L. R. A. 217. United States. Covington v. Kentucky, 173 U. S. 231, 19 Sup. Ct. Rep. 383, 43 L. Ed. 679; Wil- liamson V. New Jersey, 130 U. S. 189, 9 Sup. Ct. Rep. 453, 32 L. Eel. 915; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; New. Orleans v. Clark, 95 U. S. 644; Rogers v. Burlington, 70 U. S. 654, 18 L. Ed. 79. §15J Acceptance of Chaetee, 353 to general and special acts of incorporation.*^ Ordinary acts of legislation and the powers they confer are re- garded as mandates of the sovereign power.*^ However, the legislature may, within its discretion, re- quire the consent of the corporators. Compulsory incor- poration should not be, and is not, the rule. Most of the statutes are offers rather than compulsory laws. While, as we have seen, the machinery for organizing municipal corporations is not uniform, but is found modified in different states by local usage, certain general principles which are regarded as fundamental obtain everywhere. Perhaps the most important is that compulsory incor- poration can only come from direct legislative action, or the action of such persons, or bodies as may by the law of the land be vested with" sufficient delegated authority to bind the particular community. Some constitutions expressly forbid compulsory incorporation of municipal corporations.** 41. Hewison v. New Haven, 37 Conn. 475, 9 Am. Rep. 342. . 42. State ex rel. v. Holden, 19 Neb. 249, 251. Some general laws, by their terms and force create cities, etc., as of a certain class. State ex rel. V. Babcock, 25 Neb. 709, 26 Am. & Eng. Corp. Cas. 526, 41 N. W. 654. In Iowa a change of class takes place by virtue of statute by in- crease of population. Iowa Code, 1897, sees. 639, 640. 43. § 126 supra. Compulsory incorporation. Peo- ple ex rel. v. Bennett, 29 Mich. 451, 454, 18 Am. Rep. 107, giving history of Incorporating cities in England and the United States. The Constitution of Wyoming (art. 13, I 2), provides that "no 1 McQ.— 23. municipal corporation shall be organized without the consent of the majority of the electors resid- ing within the district proposed to be so Incorporated." Held, provision was not self-executing. State ex rel. v. Lamoureux, 3 Wyo. 731, 30 Pac. 243. The Consti- tution of Massachusetts contains a like inhibition. ' "In regard to public or munic- ipal corporations, sound principles require that they should not be placed upon the corporators with- out their consent * * *. Be- fore imposing the burdens of a city charter upon a people, the legislature not only may, but ought to require the assent of the corporators." Patterson v. Socie- ty, 24 N. J. L. 385, 397; Prince George's County Com'rs v. Bla- densburg, 51 Md. 465. 354 Municipal Corpobations. §153 Usually the question of incorporation is determined by the people of the given community either by their representatives, constituting the local or corporate authorities where some form of local organization exists, or by the local electors by direct vote.** Likewise, where cities and towns are given the option (which is the rule) of passing from one class ot grade to another class or grade they are authorized to elect what laws shall govern them as a body politic and corporate.*** 44. 5 147 supra. Oeorgia. Brunswick v. Finney, 54 Ga. 317. Illinois. People ex rel. v. Rey- nolds, 10 111. 1. Iowa. Mortord v. Unger, 8 Iowa 82. Kentucky. Clarke v. Rogers, 81 Ky. 43. Mississippi. Alcorn v. HameF: 38 Miss. 652. Montana. People ex rel. t. Butte, 4 Mont. 174, 47 Am. Rep. 346. JVetc Jersey. Patterson v. Socie- ty, 24 N. J. L. 385. North Carolina. Henderson v. Davis. 106 N. C. 88, 11 S. E. 573. Pennsylvania. Smith v. Mc- Carthy, 56 Pa. St. 359; Com. ex rel. V. Painter, 10 Pa. St. 214; Com. V. Judges, etc., 8 Pa. St. 391. Acceptance of charter by the mayor and aldermen and common council is valid where the powers of the place as a municipal cor- poration are vested with them. Central Bridge Corporation v. Lowell, 15 Gray (Mass.) 106, 116. per Shaw, 0. J. Acceptance may be proved by showing the exercise of corporate powers granted, without proof of a vote of acceptance by the cor- porate body. Society of Middlesex, etc. y. Davis. 3 Met. (Mass.) 133, 137. Acting under charter shows ac- ceptance. Lafayette v., Jenners, 10 Ind. 70, 73. See § 150 ante. Legislative act providing that before charter should take effect it should be assented to by a vote of the people of the city, held valid. Brunswick v. Finney, 54 Ga. 317, 324; Clarke v. Rogers 81 Ky. 43. Whether it is competent for the legislature to pass any law to take effect only on the assent of the people is a question upon which the authorities seem conflicting but the weight supports the valid- ity of such acts. Taylor v. New- berne, 2 Jones Eq. 141, 64 Am. Dec. 566. See § 124 ante and § 212 post. 45. § 132 ante. Acceptance of charter by leg- islature. As mentioned, in Cali- fornia, certain populous cities are allowed to frame their own char- ters for their own government, but such charters to be binding must be accepted by the state leg- islature. In passing upon such charter It must be approved or rejected as a whole, the legisla- ture possessing no power of altera- tion. There, it has been held that the approval may be by joint-reso- §154 Pkoof of Coepobate Existence. 355 § 154, Proof of corporate existence — ^judicial notice — pleading. Courts will take judicial notice of the public corpora- tions of tlie state incorporated under general laws; *® and also judicial notice of charters and legislative acts creating municipal corporations and of the powers thus conferred.*^ lution and need not be by bill signed by the governor. Brooks V. Fischer, 79 Cal. 173, 21 Pac. 652, 4 L. R. A. 429. 46. Com. V. McMichael, 8 Pa. Dist. 157, 22 Pa. Co. Ct. 182; French v. Barre, 58 Vt. 567, 575, 5 Atl. 568; Woodward v. Chicago, etc. R. Co., 21 Wis. 309. 47. Alabama. Frost v. State, 153 Ala. G54, 45 So. 203; Albrittln v. Huntsville, 60 Ala. 486; Bessemer V. Carroll, 154 Ala. 506, 45 So. 419; Perryman v. Greenville, 51 Ala. 510; State ex rel. v. Matthews, 153 Ala. 646, 45 So. 307; Mont- gomery V. Wright, 72 Ala. 411, 419, 47 Am. Rep. 422. Illinois. 1 Starr & Curtis Anno. 111. Stat. (2d Ed.), p. 678; Welsh V. Shumway, 232 111. 54, 59, 83 N. W. 549; Jones v. Lake View, 151 111. 663; Potwin v. Johnson, 108 111. 70. Minnesota. State v. Tosney, 26 Minn. 262. Missouri. R. S. Mo. 1889, sec. 1465, Kansas City v. Block, 175 Mo. 433, 74 S. W. 993; Kansas City V. Vineyard, 128 Mo. 75; Bowie v. Kansas City, 51 Mo. 454; Hubbel V. Maryville, 85 Mo. App. 165; Savannah v. Dickey, 33 Mo. App. 522. North Carolina. Keeler v. New- born, 61 N. C. (Phil. Law) 505. Wisconsin. Swain v. Comstock, 18 Wis. 463; Rains v. Oshkosh, 14 Wis. 372; Smith v. JanesviUe, 52 Wis. 680. Judicial notice. Under the English municipal corporation act of 1835, corporations within the statute are made public corpora- tions and courts will take judicial notice of them. Grant, Corp., 343. Judicial notice of a county seat within the state will be taken. Board of Com'rs v. Kansas, 19 Okl. 375, 91 Pac. 699. Courts will take judicial notice of the powers and duties of cities when created by public act, and where the powers and duties are in like manner prescribed. Hub- bel V. Maryville, 85 Mo. App. 165; Savannah v. Dickey, 33 Mo. App. 522; R. S. of Mo. 1889, sec. 1465. The statute of Missouri as to villages does not In express terms so require. Hambleton v. Dexter, 89 Mo. 188. In an action where the city Is a party it will be presumed, nothing appearing to the contrary, that it is Incorporated under the general laws for the incorpora- tions of cities. House v. Greens- burg, 93 Ind. 533; Houser v. State ex rel., 93 Ind. 228; Lowrey V. Delphi, 55 Ind. 250; Logansport V. Wright, 25 Ind. 512. See So- ciety, etc. V. Town of Pawlet, 29 (U. S.) 480. The courts of Texas will take judicial notice that Houston has 356 Municipal Cobpobations. §154 Courts will not only take judicial notice of tlie incor- poration of a city, whether under the general law, or by special charter, but also of the class to which it belongs.^* Hence, courts will take judicial notice that a municipal corporation is a city of the second class, when it, has been made such under the statute by a public proclamation by the governor.*^ So courts will take judicial notice of the reorganization of a village of a . particular class.^" The general recognition of a city as belonging to a particular class renders it such de facto and validates all its acts, while de jure it belonged to another class."^ been Incorporated for more than forty years and that its charter has been from time to time amend- ed or another su"bstituted by the legislature. Houston v. Dooley, 40 Tex. Civ. App. 371, 374, 89 S. W. 777. The City of St. Louis is a sep- arate political subdivision of the state and the courts are bound to take judicial notice of its exist- ence. State V. Nolle, 96 Mo. App. 524; 70 S. W. 504. 48. Ft. Scott V. Elliot, 68 Kan. 805, 74 Pac. 609; Jackson v. Kan- sas City, etc. R. Co., 157 Mo. 621, 633, S8 S. W. 32; Brookfield v. Tooey, 141 Mo. 619, 43 S. W. 387; Little Rock v. Parish, 36 Ark. 166; Taylor v. Ft. Wayne, 47 Ind. 274, 280; Hornberger v. State, 47 Neb. 40, 66 N. W. 23. Judicial notice of class. "When an act relates only to cities of a certain class, the court cannot pre- sume that a given city belongs to that class against the fact that the only evidence within its ju- dicial knowledge shows that it does not." Jones v. Hewes, 157 Ala. 624, 47 So. 739. Unless the increase or diminu- tion of the population alone alters the class or grade courts are not bound to take judicial notice of the class or grade to which any particular city belongs. Bolton v. Cleveland, 35 Ohio St. 321. In Iowa increase of population of itself advances the city to a higher class. Iowa Code of 1897, sec. 639, 640. A special city charter should be offered in evidence where it contains no provision authorizing judicial notice to be taken of it, where the case involves Its val- idity, parish v. Tucker, 101 Tex. 99 (1907), 104 S. W. 1046, affirm- ing Tucker v. Paris (Tex. Civ. App. 1907), 99 S^ W. 1127. Judicial notice of population. Courts will take judicial notice of the population of a city of the state. State ex rel. v. Page, 107 Mo. App. 213, 80 S. W. 912. 49. State v. Ricksecker, 73 Kan. 495, 85 Pac. 547. 50. Billings v. Dunnaway, 54 Mo. App. 1. 51. Back V. Carpenter, 29 Kan, Ci9. U54 Peoof of Coepoeate Existence. 357 So, courts will judicially notice that a city is organ- ized under the general laws relating to the incorporation of municipalities.^* Hence, where the act of incorpor- ation is a public law the fact of incorporation need not be pleaded.^3 If suit is brought in the corporate name it is not neces- sary to allege that the municipal corporation was regu- larly incorporated ; "* nor need it be averred in the com- plaint that defendant is a municipal corporation ; ^^ description of defendant as a town or city is a sufficient averment of the fact that it is a municipal corporation, e. g., an allegation in a petition that defendant is a " corpo- ration, created by authority of the state of Iowa, under the name and style of ," is sufficient. A bare denial will not put in issue its existence as a corpora- tion."^ So a declaration describing defendant as "the village of North Muskegon, a municipal corporation of the State of Michigan," alleges a sufficient description of its corporate existence."'^ But in California it has been held that the class to which a municipal corporation belongs must be stated if the action in any way depends upon that fact; that the court will not take judicial •notice of that fact.^* 52. Hunt V. Chicago, etc. R. Co., 121 111. 638; Harmon v. Chi- cago, 110 IlL 400; Rock Island v. Cuinely, 126 111. 408; Potwin v. Johnson, 108 111. 70; Doyle v. Bradford, 90 111. 416; Brush v. Lemma, 77 111. 496; Jones v. Lake View, 151 111. 663; 1 Starr & Curtis Anno. 111. St. (2d Ed.), 678. Private acts are not judicially noticed. Kirhy v. Wabash Ry. Co., 85 Mo. App. 345; Bliss on Code PI., sec. 202. 53. Smith v. Janesville, 52 Wis, 680; Rains v. Oshkosh, 14 Wis. 372; Dutchess Cotton M. v. Davis, 14 Johns. (N. Y.) 238. 54. Morris v. Trustees, 15 111. 266. 55. 372. 56. 353. 57. Rains v. Oshkosh, 14 Wis. Stier V. Oskaloosa, 41 Iowa Clark V. North Muskegon, 88 Mich. 308, 50 N. W. 254. 58. Pritchett v. Stanislaus County, 73 Cal. 310, 14 Pac. 795. Presumption as to population. Where it is provided by constitu- tion that cities having more than 10,000 inhabitants may be granted a special charter by the legisla- ture, it will be presumed that the legislature ascertained the popula- tion of a city which it granted a special charter. McCormick v. Jester (Tex. Civ. App. 1909), 115 S. W. 278. 358 Municipal Cobpobations. § 155 § 155. Same. Since a municipal corporation has power to sue and be sued, it is not necessary to allege its corporate capacity to sue.'® Generally, in order to put in issue the fact of incorpor- ation of a city or town, it is necessary to deny that fact by affidavit.®" Admission in defendant's answer that the city is incorporated proves this fact.*^ Where a municipal corporation appears in an action against it and makes an affirmative defense, like a pri- vate corporation, it admits its corporate existence.®^ By some statutes this rule applies to private corporations,** and it has been held that a city's corporate existence is admitted under such statute unless denied under oath.** One having contracted with a plaintiff as a corpora- tion is estopped to deny its corporate capacity.** As above stated, when it is shown that a town or city has availed itself of the general law authorizing towns and cities to become incorporated, the courts will take judicial notice of the rights and powers conferred thereby. But the fact that a particular town or city has availed itself of the privileges of such law and become incorporated must be proved. The courts will not take judicial notice of it.** 59. Janesville v. Milwaukee, 49 Mo. App. 244; Bradley v. Spick. etc. R. Co., 7 Wis. 484. ardsville, 90 Mo. App. 416. 60. Downs V. Smyrna, 2 Pen- Presumptions are indulged In newell (Del.) Rep. 132, 45 Atl. 717; ^a^vor of existence of corporation. Hlxon & Co. v. George, 18 Kan. Jameson v. People, 16 111. 257, 63 253; Bradley v. Spickardsville, 90 Am. Dec. 304; Brazil v. Kress, Mo. App. 416. 55 Ind. 14; Centerville v. Woods, 61. Fox V. Ft. Edward, 48 Hum. 57 Ind. 192. 62. Eubank v. Edina, 88 Mo, 650. (NY) 363 ®^" S^'^ioo^ ^ist. V. Collins (Dak.), 24 Am. & Eng. Corp. Cas. 550; Smelser v. W. & U. S. L. T. do., 82 Ind. 417; Rector, etc. v. 63. Seaton v. C. R. I. & P. Ry. Lovett, 1 Hall (N. Y.) 191. Co., 55 Mo. 416; Witthouse v. A. 66. Hopkins v. Kansas City, & P. Ry. Co., 64 Mo. 523. etc. R. Co., 79 Mo. 98; Harobleton 64. ■Walter T. Point Pleasant, v. Dexter, 89 Mo, 188, 191. ^156 Pboof of Cobpoeate Existence, 359 In alleging the existence of a town it is not necessary to set out the existence of the facts on which the order of the court establishing the corporate existence of the town was founded. The propriety and regularity of the court's action in the matter of incorporating a town is presumed until the contrary appears.^^ Therefore, it has been held that the incorporation of a town is not subject to an attack because the petition to the court did not show that the required number of taxpayers had signed it.«8 § 156. Same — how incorporation proved. Where no charter or act of incorporation of a place can be found its incorporation as a town may be proved by reputation, or by long user of the corporate powers of a town, without objection, or by legislative grants, necessarily implying a town corporation.*^ Thus in an 67. state ex rel. v. Weatherby, 45 Mo. 17. See State t. Bvans, 83 Mo. 319; State ex rel. v. Young, 84 Mo. 90; Leanard v. Sparks, 117 Mo. 1. c. 116; State v. Mackin, 51 Mo. App. 129. 68. State ex rel. v. Weatherby, 45 Mo. 17. But see State ex inf. v. Fleming, 147 Mo. 1, 44 S. W. 758. 69. Bow V. Allenstown, 34 N. H. 351, 69 Am. Dec. 489; Black- stone V. White, 41 Pa. St. 330; Stockbrldge v. West Stockbrldge, 12 Mass. 400; Londonderry v. And- over, 28 Vt. 417. Proof of loss of charter re- quired. Bralntree v. Battles, 6 Vt. 295. Proof that a corporation was acting as such with legislative sanction would be sufficient evi- dence of rights, except as against the state, and such cannot be at- tacked collaterally. Board of Edu- cation V. Berry, 62 W. Va. 433, 441, 59 S. E. 169. Parish. Where no act of Incor- poration of a parish can be found, which parish had existed for more than forty years, proof of Its in- corporation by reputation will be received. Dillingham v. Snow, 5 Mass. 547. School district. Existence and organization of a school district may be proved by reputation where its organization does not appear of record. Barnes v. Barnes, 6 Vt. 388; Sherwin v. Bugbee, 16 Vt. 439; Bassett v. Porter, 4 Cush. (Mass.) 487. Number of dwelling houses, worl. Ed. 310: 'RalTs ConTity V. Douglas, 105 U. S. 728; National Life Ins. Co. of Mont- peller v. Huron, 62 Fed. 778; Ash- ley V. Board of Presque Co., 60 Fed. 55, 63; Hill v. Kakoka, 35 Fed. 32; Austrian v. Guy, 21 Fed. 500; Judson v. Plattsburg, 3 Dill. C. C. 181. 82. United States. National Bank v. Matthews, 98 U. S. 621. Indiana. MuUlkln v. Bloom- ington, 72 Ind. 161. Kansas. Levitt v. Wilson, 72 Kan. 160, 83 Pac. 397. Missouri. State ex rel. v. Birch, 186 Mo. 205, 85 S. W. 361. North Dakota. Ward v. Gra- din, 15 N. D. 649, 653, 109 N. W. 57. Virginia. Agner v. Com., 103 Va. 811, 813, 48 S. E. 493. Rival corporation cannot ques- tion. Kirkpatrick v. State, 5 Kan. 673. Questioning validity. May only be questioned by state or some individual under authority of the state, who has a special interest which is affected by the existence of the corporation. El Paso V. Ruckman, 92 Tex. 86, 46 S. W. 25. 83. St. Paul Gaslight Co. v. Sandstone, 73 Minn. 225, 75 N. W. 1050; Stout V. St. Louis, etc. R. R. Co., 142 Mo. App. 1, 125 S. W. 230. Questioning incorporation, A private individual cannot bring 36i MUWICIPAI, COKPOEATIONS. §158 town are invalid, after the lapse of ten years, the validity of such organization and its authority to levy taxes can- not be questioned collaterally in a proceeding by the alleged owner of a lot, to remove a cloud on his title caused by a tax deed issued to a purchaser at a tax sale for taxes levied by such town.** The judgment of a- competent pourt acting within its jurisdiction in incorporating a town is conclusive and cannot be attacked except for fraud or connivance.*^ quo warranto proceedings to test the validity of the inoorporatlon of a city or town. Moore v. Sey- mour,' 69 N. J. L. 606, 55 Atl. 91. Unless given the right by statute. State ex rel. v. McLean County, 11 N. D. 356, 92 N. W. 385. Cannot be questioned by private action for an injunction against taxes. Kuhn v. Port Townsend, 12 Wash. 605, 29 L. R. A. 445. Cannot be questioned by habeas corpus to release one held under an ordinance. Ex parte Keeling, 54 Tex. Cr.Rep. 118, 121 S. W. 605. Contest, to question regularity of incorporation is allowed In some states. Stephens v. People ex rel., 89 111. 337. One who has contracted with an organization as a corporation in Its corporate name is estopped from denying the existence- of such corporation at the time of making the contract. West Mn. Land Co. v. Kansas City, etc. R. R., 161 Mo. 595; Cowell v. Colo- rado Spring Co., 3 Colo. 82. May be questioned collaterally In Tennessee. Woodbury v. Brown, 101 Tenn. 707, 50 S. W. 743; State v. Frost, 103 Tenn. 685, 54 g. W. 986; Angell v. Spring City (Tenn. Chan. App. 1899). 63 S. W. 191. In Tennessee when the attempt- ed organization is void the munici- pality may plead the invalidity of its organization on a suit on bonds issued by such city, on the ground that no power existed to issue them. Ruohs v. Athens, 91 Tenn. 20, 18 S. W. 400, 30 Am. St. Rep. 858. Where the question arises col- laterally it is sufficient to show a de facto incorporation. Louisville, N. A. & C. Ry. Co. v. Shires, 108 111. 617. "Even if a municipality has been illegally constituted, the state alone can take advantage of the fact in a proper proceeding insti- tuted for the purpose. When the question arises collaterally the courts will not permit its corpo- rate character to be questioned, if it appear to be acting under color of law and recognized by the state as such." Carthage v. Burton, Tex. Civ. App. (1908), 111 S. W. 440. See also. El Paso v. Ruck- man, 92 Tex. 86, 89, 46 S. W. 25. 84. Austrian v, Guy, 21 Fed. 500; Stuart v. School Dist, 30 Mich. 69. 85. State ex rel. v. Fleming,, 147 Mo. 1, 44 S. W. 758. § 159 Questioning Ceeation. 365 But where the court in incorporating has no jurisdiction in the proceeding, or, having jurisdiction of the subject- matter, renders judgment in excess of its jurisdiction, the judgment is void and may be attacked collaterally.** § 159. Same. Usually the legal existence as a corporation cannot be raised collaterally in proceedings relating to levy and collection of taxes.^^ Proof that the corporation was acting as such, under legislative warrant, would be suf- ficient evidence of right, except as against the state.^* It is also a general legal proposition that quo warranto is the proper remedy to test the right of a municipal corporation to exercise its functions over territory al- leged to be outside its corporate limits.^® Where quo warranto is brought for usurping the right to be a corporation it should be brought against the particular person; but if it is brought for franchises and liberties claimed by a corporation then it must be brought against the corporation itself.^" 86. state ex inf. v. Bellflower, 129 Mo. App. 138, 108 S. W. 117, 87. Florida. Bateman v. Flori- da Commercial Co., 26 Fla. 423 Illinois. People ex rel. v. Peder- 42 L. Ed. 310; Graham v. Grees.- ville, 67 Tex. 62; Cooley's Const. Lim. 254. 89. State v. Board of County Comrs., 66 Minn. 519, 68 N. W. son, 220 111. 554, 77 N. B. 251, 8 767, 69 N. W. 925, 73 N. W. 631; So. 51; Nunda v. Chrystal Lake, State ex rel. v. McMillian, 108 79 111. 311. Mo. 153; State ex rel. v. West- Kansas. Kansas Town & Land port, 116 Mo. 582, 22 S. W. 888. Co. V. Allen, 6 Kan. App. 247, 51 Conflict suggested as to remedy Pac. 804. by quo warranto respecting exten- Michigan. Bird v. Perkins, 33 sion of city limits. . State ex int. Mich. 28; Coe v. Gregory, 53 Mich. v. Fleming, 147 Mo. 1, 12, 44 S. 19, 18 N. W. 541. W. 728. Nebraska. McClaV v. Lincoln, 90. State ex inf. v. Fleming, 32 Neb. 412. 147 Mo. 1, 44 S. W. 758, 158 Mo New Jersey. Rellstab v. Bel- 558. mar, 58 N. J. L. 489, 34 Atl. 885. Against w'nofR su!* te be 88. St. Louis V. Shields, 62 Mo. brought. "Whenever the proceea- 247, 252; Shapleigh v. San Angelo, Ing is such as must test and deter- 167 U. S. 646, 651, 17 Sup. Ct. 957, mine the validity of a municipal 366 Municipal Coepobations. §159 As pointed out,'^ the state may by long acquiescence and continued recognition of a municipal corporation, 91. § 152 ante. charteir as such the municipality, real or pretended, must be made a party. It may be otherwise where the only effect of the proceeding will be to determine the right of some particular person to exercise certain powers under the charter." "Here while nominally the pro- ceeding is to oust the defendant Grunn from the office of mayor, it is apparent on the face of the complaint that the object of the action is to determine the right of the city of San Diego to exer- cise the franchise of a municipal corporation under a freeholders' charter, claimed to have been adopted by the people and approv- ed by the legislature. The com- plainants attempt to maloe no case against the defendant, ex- cept as it is made through the alleged invalidity of such char- ter. This being its purpose, we are of opinion that the munici- pality was a proper and necessary party defendant to the proceed- ing." People V. Gunn, 85 Cal. 238, 244, 245, 24 Pac. 718. "It would seem to be proper that a defendant claiming to be a city * • * and acting as such, should be made a party in an ac- tion to determine the_ validity thereof." People v. Stanford, 77 Cal. 360, 19 Pac. 693. In Brooks v. Fischer, 79 Cal. 173, 21 Pac. 652, 4 L. R. A. 429; People V. Parks, 58 Cal. 624, and People V. La Rue, 67 Cal. 526, the question of corporate existence was incidentally involved, but in neither of them was any question made as to whether the proper partiSs were before the court. The statutory action for the usurpation of a municipal fran- chise may be maintained against the defendant in its assumed corporate name without joining the officers, for their liability is for the usurpation of office, and not of a franchise. People v. Riverside, 66 Cal. 288. In an action to have it adjudged that a corporation was never legally constituted the proceeding must be one that will bring the corporation itself directly before the court. State v. Brown, 31 N. J. L. 356. "In a proceeding to directly test the existence of the corporation it ought to be a party by its as- sumed corporate name, as Its ex- istence as such is the very thing to be tried — its right to live and act in that name — ^and that its lawful existence is not admitted simply by impleading it in that> name, when the pleading denies it." Hornbrook v. Elm Grove, 40 "W. Va. 543, 552. The question whether a town was legally erected may be test- ed by action in the nature of quo warranto against one claiming to exercise the office of supervision of such town. People v. Carpen- ter, 24 N. Y. 86. Where the issue in any elec- tion contest is the boundaries of incorporation, the proceeding held not to be a collateral attack on § 160 CONSTITTJTIOKAL PeOVISIONS. 367 througli its officers, state and county, be precluded from an information to deprive it of its franchises long exer- cised in accordance with the general law.®^ By statute in Wisconsin the validity of an ordinance of a county board purporting to organize or set off a new town, or to change the boundaries of existing towns, may be determined on certiorari?^ But such action cannot be questioned in a collateral proceeding, except where made without warrant of law.®* § 160. Constitutional provisions. Constitutional provisions forbidding special acts relat- ing to municipal corporations, referred to in this and prior chapters, are treated in the chapter on legislative control. Likewise the constitutional provisions respect- ing classification of municipal corporations, as well as provisions of particular constitutions conferring upon certain populous cities the right to adopt their own char- ters and frame their own municipal governments and other constitutional provisions limiting legislative con- trol are there discussed.®' the legal existence of the town, suit on Its bonds. Ruohs v. Foster V. Hare, 26 Tex. Civ. App. Athens, 91 Tenn. 20, 18 S. W. 400. 177, 62 S. W. 541. See Norton v. Shelby County, Where a city Issues bonds as a 118 U. S. 425, 6 Sup. Ct. 1121. village, when it ought to have 92. State v. Leatherman, 38 been termed a city the bonds Ark. 81. were decreed valid, and the corpo- 93. Gilkey v. How, 105 Wis. ration was estopped from setting 41, 81 N. W. 120, 49 L. R. A. 483; up this fact as a defense. Cornell State ex rel. v. Forest Co., 74 Wis. University v. Maumee Village, 68 610, 619, 43 N. W. 551. Fed. 418. 94. Schriber v. Langlade, 66 Bonds of a de facto county may Wis. 616, 29 N. W. 547, 554. be held good. Riley v. Garfield In this respect the statute is Tp., 54 Kan. 463, 38 Pac. 560. simply confirmatory of the com- Where the incorporation is ut- mon law. Gilkey v. How, 105 Wis. terly void and organized in direct 41, 47, 81 N. W. 120, 49 L. R. A. violation of the State Constitu- 483. tion, the illegal body was permit- 95. Ch. IV, Legislative Control ted to plead its Invalidity in a of Municipal Corporations. 368 MuNICIPAIi COEPOBATIONS. § 161 The Constitution of Ehode Island provides that when any bill shall be presented to either house of the general assembly to create a corporation for any other than for religious, literary, or charitable purposes, or for a mili- tary or fire company, it shall be continued until another election of the members of the general assembly shall have taken place and such public notice of the pendency thereof shall be given as may be, required by law. It has been held in that state that, an act creating a fire district need not comply with this provision as it is a public quasi-mumcipal corporation and not private and that the Constitution relates only to private corpora- tions.®* § 161. Same — title to act — illustrative cases. Most of the state constitutions provide that no bill (except appropriation bills, etc.) shall contain more than one subject which shall be clearly expressed in its title. The illustrations drawn from the cases, sufficiently show the application of the requirement. A title, namely, "An act to establish a charter for the city of Troy, in Pike county," was adjudged good; the court holding that the subject of the law to incorporate a city or town is the charter of incorporation, and there- fore, the title need not be an index to the act; nor need it state a catalogue of all the powers intended to be 96. Wood V. Quimby, 20 R. I. authorized to exercise, and is ex- 482, 40 Atl. 161; Cole v. Engine ercising a part of the sovereign Co., .12 R. I. 202; Sherman v. powers of the state, and is there- Benford, 10 R. I. 559; State v. fore a governmental or political District of Narragansett, 16 R. I. body; and the mere fact that it is 424. made subject to the provisions ol Fire district is governmental a statute ^hich, for the most part corporation. The fire district at least, are not applicable to it; "was not intended to be a business does not have the effect to change corporation. It has no capital its essential character and make stock; it makes no returns, and it a private corporation." Wood it holds no property except for v. Quimby, 20 R. I. 482, 486, 40 public purposes. It is simply Atl. 161. §161 Title to Act. 369 bestowed. "This is included in the thing created; that is the charter of incorporation." *^ "Act to define the boundaries of and establish a municipal government for the city of Duluth," is valid, although the act repeals a prior law destroying a village organization and annexing its territory to the city.®* So, "An act providing for the organization, cla,ssifica- tion, incorporation and government of municipal cor- porations," is sufficient to embrace provisions authoriz- ing the consolidation of municipal corporations by holding special election therefor.®® So, an act entitled, "An act to amend an act to incor- porate the city of Muscatine" is sufficient to include provisions for enlarging the corporate boundaries of the eity.i 97. Lockhart v. Troy, 48 Ala. 579, 584; People ex rel. v. Mellen, 32 111. 181; Thompson v. Milwau- kee, 69 Wis. 492. 98. Title may omit minor sub- jects and details. "It would be Impracticable to require all these ' minor subjects to be expressed in ' the title. All that is required is that they and the provisions in re- spect to them shall be germane to the subject expressed in the title such as have a just and proper reference thereto; such as by the nature of the subject indicated are manifestly appropriate in that connection. It could not be re- qu'red that every other law re- pealed by implication because of repugnancy or inconsistency shall be mentioned in the title of the new act." State v. Gallagher, 42 Minn. 449. ' 99. Title of act to consolidate municipal corporations. "What is effected in the consolidation of two cities Is finally Incorporation, 1 McQ.— 24 which Is the generic subject of this act. Preliminary to this in this case was the dlsincorporation of both cities; but the object to be attained was not the dlsincor- poration or the reincorporation of either, but the Incorporation of both as one. The title of an act is not intended to be a glossary of its contents, nor is the con- stitutional provision with regard to titles meant to provide an index to the statutes. The real object of such provision is to prevent surreptitious legislation on mat- ters which are not germane to the declared object of an act as ex- pressed In its title; and certainly no one could have been surprised that the consolidation of cities should be Included in an act hav- ing so comprehensive a title as ■ this." State ex rel. v. New What- com, 3 Wash. 7, 10, 11. 1. Morford v. Unger, 8 Iowa r2. 370 Municipal. Cobpobations. § 162 Likewise provisions for excluding territory from the limits of a city already incorporated are sufficiently cov- ered by the title of an act "for the incorporation of cities. "2 In setting apart and incorporating a township from two other townships, omission to mention the name in the title of the act of one of the townships from which a part of the new was taken is not fatal.* § 162. Same subject. Under the Constitution of Georgia which limits the title to one subject and forbids the law from containing matter different from what is expressed in the . title, where an act is entitled, an act to amend the charter of a named city by incorporating as a part thereof certain designated contiguous territory, to defi;tie the duties and powers of the municipal authorities in the annexed terri- tory, "and for other purposes," any legislation can con- stitutionally be embodied in the act which is germane to the general subject of amending the charter of the city.* 2. Whiting V. Mt. Pleasant, 11 to form the new town was un- lowa 482. . necessary. Such statement goes See Williamson v. Keokuk, 44 beyond the mere expression of the Iowa 88. object of the statute and is par- A constitutional provision au- ticularly what the Constitutioii thorizing the legislature to amend does not require. A mistake in or repeal all laws for the organiza- that regard cannot invalidate a tion or creation of corporations, statute otherwise legal. The Con- or granting of special or exclusive stitution does not require that privileges or immunities, by a any of the provisions of the bill two-thirds vote, relates alone to shall be stated in the title. If corporations for pecuniary profit, the main object of the bill is or does not authorize the amend- embraced in the title the require- ment of the charters of municipal ments of the Constitution have corporations by special statutes, been complied with." Curry v. Ex parte Pritz, 9 Iowa 30. Blvins, 32 N. J. L. 362, 363, per 3. Title to act consolidating Dalrimple, J. townships. Here it was said, 4. Macon v. Hughes, 110 Ga. "The object of the act Is to incor- 795, 36 S. E. 247; Butner t. porate the new town. That object Boifevillet, 100 Ga. 743, 28 S. E. is explicitly stated in the title. 164; Burns v. State, 104 Ga. 644, • • • Any statement in the distinguishing Sasser v. State, 99 title as to the territory to be taken Ga. 54, 25 S. E. 619; McGurn t. § 163 Title to Act. 371 But, "An act to prescribe the manner of incorporating towns and villages," is not sufficient, to cover provisions amending existing charters, under the Constitution of Georgia." So under the Constitution of Illinois, "An act to repeal certain acts therein named," which seeks to repeal former laws incorporating a city, and to reincor- porate into a town an earlier municipal corporation, is unconstitutional, because the latter purpose is manifestly not designated in the title.® An act entitled "An act to amend section 1 of an act entitled 'An act to amend section 1 of an act entitled "An act to establish a new charter for the city, of Ensley," ' " sufficiently complies with the constitutional provision that each law shall clearly express its subject in its title.'' So is an act which authorizes cities and towns to issue bonds in accordance with the result of an election therein authorized to be held.* § 163. Same subject. The title of an act, "An act to amend an act entitled 'an act to amend the charter of the city of Lewiston' and establish a new and complete charter for said city," is sufficiently comprehensive to include all provisions germane to the city charter.* An act entitled "An act authorizing cities having a population of 50,000 or over to erect a city hall, to pur- chase the necessary ground therefor and to levy a special tax for the purpose of paying for the same," properly contains provisions authorizing such cities to levy special Board of Education, 133 111. 122, sufficient. The adjuncts of that 24 N. B. 529; State ex rel. v. subject are not required to be ex- Duval County, 23 Fla. 483. pressed, or the modus operandi. 5 Ayerldge v. Comrs., 60 Ga. Ottawa v. People ex rel., 48 IlL 404; Brunswick v. Brunswick, 51 233. Ga. 639. 7- Ensley v. Cohn (Ala. 1907), 6. People V. Mellen, 32 111. 181. 42 So. 827. "An act to authorize the town 8. Blakey v. Montgomery, 144 of Ottawa in La Salle County to Ala. 481, 485, 39 So. 745. erect two bridges across the 9. Butler v. Lewiston, 11 Idaho Illinois and Miohlgan Canal," is 393, 83 Pac. 234. 372 Municipal Cobpoeations. § 163 taxes to pay for such buildings and the grounds therefor, and to issue bonds in anticipation of the tax, and provid- ing that no such building shall be erected unless a majority of the legal voters vote in favor of the same at ah election. The act does not embrace more than one subject and that is expressed in its title." A title which expresses a grant of power to a city to gpvern itself and to control its different agencies is suf- ficient for an act which also contains provisions relating to the power to construct, preserve, and make useful and convenient highways throughout the city.*^ The title of an act entitled "An act to modify and change in certain respects the form of government of the City of Memphis * * * and to amend its existing charter or charters * * * so as to continue its exist- ence, with a more efficient form of government, * * *" does not embrace the provisions in the body of the act relative to state and county taxes; the provision giving the city exclusive power to license ferries; and the pro- vision authorizing the mayor, when he deems a nuisance to exist within the city or within ten miles of its limits, to abate the same, consequently the act is unconstitu- tional.^^ Where the title of an act shows that it was the inten- tion of the legislature to make it an amendatory act, but the body of the act in express terms shows it to be a repealing act, such act is void.^' 10. Beaner v. Lucas, 138 la. 12. Malone v. WiUiams, 118 215, 112 N. W. 772. Tenn. 390, 466, 467, 103 S. W. 798. 11. Nalle V. Austin, ( Tex. Civ. 13. Malone v. Williams, 118 App., 1907), 103 S. W. 825. Tenn. 390, 441-442, 103 S. W. 798. Legislative Conteol. 373 CHAPTER 4. LEGISIATIVE CONTROL OF MUNICIPAL CORPORATIONS. 1. In general — besteictions considered and illusteated. 2. Constitutional pbovisions. 3. Same — classification of municipal coeporations — general AND special or LOCAL LAWS. 4. Legislative control of corporate property. 5. Legislative control of streets and highwats. 6. Legislative control of funds and revenues. i 7. Power of legislature to impose obligations, control municipal contracts, public improvements and LXABILITIESv 8. Conclusions relating to legislative control. 1. in general besteictions considered and illusteated. Sec. Sec. 164. Importance of the subject. 171. Local self-government Is rec- 105. General legal doctrine stated. ognized and sought to be 166. Legislature may exercise perpetuated by State Con- compulsory authority in stitutions. state affairs. 172. Legislative Interference — 167. Limitations of legislative con- evasion of constitutional trol exist. limitations. 168. Same subject — Judge Cooley's 173. Municipal affairs defined and view — confined to the cor- distinguished from state poration as an agency of functions. the state in its govern- 174. Same subject. ment. 175. Same — relations In which 169. Same subject — certain llmita- subject has been consid- tions specified. ered. 170. The limit of legislative con- 176. Right of municipal corpora- trol is to be determined, if tion to select local oflicers. at all, by the adjudicated 177. State may regulate selection cases. of .municipal ofiBcers. 374 Municipal Coepokations. Sec. 178. 179. 180. Municipal officers distinguish- ed from state officers — state officers illustrated. Same — ^municipal officers de- fined and illustrated. Same — Illustrative cases ol state and municipal officers. See. 181. 182. 183. 184. Police recognized as agency ot state. Legislative control of officers and their functions illus- trated. Same. Legislature may change cor- porate boundaries. CONSTITUTIONAL PROVISIONS. Sec, 185. General constitutional limi- tations of legislative power relating to municipal cor- porations. 186. Constitutional limitations of powers of counties and mu- nicipal corporations. 187. Special and local laws relat- ing to municipal corpora- tions where a general law can be made applicable. 188. The legislature shall not regulate the business or in- ternal affairs of municipal corporations. ' 189. Same — by commissions. 190. "Corporate powers" or "mu- nicipal purposes" cannot be conferred or created by special laws. Sec. 191. Uniform system of local gov- ernment is usually re- quired. 192. Same — illustrative cases. 193. "Laws of a general nature shall have a uniform opera- tion throughout the state." 194. Legislative control of cities with constitutional char- ters. 195. Special constitutional provis- ions forbidding legislative control. 196. Additional constitutional pro- visions as a remedy against Improper legislative Inter- ference suggested. 3. BAME- -CLA8SIPICATI0N OP MUNICIPAL CORPORATIONS- SPECIAL OR LOCAL LAWS. -GENERAL AND Sec. 197. Classification of municipal corporations authorized and described. 198. "General law," "public law," "special law," and "local law" defined and distin- guished. 199. Same subject Sec. 200. Tests to distinguish general from special or local law. 201. Same subject. 202. Judicial methods of testing classification. 203. Same subject. 204. Population as a basis for classification. Legislative Conteol. 375 Sec. 205. Act applicable to one city or object only. 206. Same — illustrative cases. 207. Tests of classlflcatlon— illus- trative cases. 208. Same subject — justification for and relation of classifi- cation to purpose of the legislation. 209. Cases Illustrating general laws as distinguished from special or local laws. 210. Laws applicable to municipal corporations of a class. 211. The legislature cannot divide or add classes. Sec. 212. Special or local laws to take effect on event of future contingency or within lim- ited time. • 213. Same — local option laws. 214. Curative acts as special or local laws. 215. Laws to give effect to con- stitutional provisions. 216. Indirect or legislative amend- ment of municipal charters. 217. Changing special municipal charters. 218. Summary of principles ap- plied to test the validity of classification. LEGISLATIVE CONTROL OF CORPORATE PROPBRTT., Sec. 219. Legislative control of corpo- rate property — general con- sideration. 220. Same — water works. 221. Same — parks. 222. Same — wharves. 223. Same — ferry franchises. Sec. 224. Same — miscellaneous corpo- rate property. 225. Same — transfer to another class of public oflacers. 226. Same — general doctrine stat- ed. O. LBQISLATIVB CONTROL OF STREETS AND HIGHWAYS. Sec. Sec. 227. Legislative control of streets 228. Power delegated to municipal is paramount. corporations to regulate streets. 229. Same — right Is public. 6. LEGISLATIVE CONTROL OF PtTNDS AND REVENUES. Sec Sec. 230. Legislative control of funds 232. Same — illustrative case. and revenues. 233. Revenue derived as a private 231. Same subject corporation — trust fund. 376 Municipal Coepobations.' §164 7. POWER OP LEGISLATURE TO IMPOSE OBLIGATIONS, CONTROL OP MUNICIPAL CONTRACTS, PUBLIC IMPROVEMENTS AND LIABILITIES. Sec. 234. Power of legislature to im- pose obligations. 235. Same subject. 236. Legislative power to compel the levy of taxes. 237. Compelling payment of claims. 238. Same subject. Sec. 239. liegislative control of munic- ipal contracts. 240. Same subject — hours of labor — validating contract. 241. Legislative control of public improvements. 242. Legislative control of munic- ipal liabilities. 8. CONCLUSIONS RELATING TO LEGISLATIVE CONTROL. Sec. 243. 244. 245. Reason and effect of legisla- tive interference with local affairs. Result of absence of aflarma- tive constitutional provis- ions protecting the right of local self-government. Constitutions limit and re- strain governmental action in the protection of the Sec. people in the enjoyment of recognized pre-existing rights and powers. 246. Right of local self-govern- ment exists without ex- press constitutional provis- ion. 247. Summary of principles ap- plicable to legislative con- trol. 1. IN GENEBAL ^BBSTBICTIONS CONSIDERED AND ILLTJSTEATBD. § 164. Importance of the sut ject. Legislative control of municipal corporations has been exhaustively treated by courts of last resort in this country, particularly during the past twenty-five or thirty years, in its various legal phases, and during this time the subject has also been widely discussed as a political and governmental problem by legislators, jur- ists, lawyers, academicians and citizens generally.^ More- 1. Falrlie, The Centralization of Administration in New York State; Orth, The Centralization of Administration in Ohio; Binney, Restrictions upon Local and Spec- ial Legislation in State Constitu- tions; Howe, The City the Hope of Democracy; Deming, Govern- ment of American Cities; Ashley, Local and Central Government. § 164 Legislative Control. 377 over, state constitutions have been amended from time to time, during this period, to check legislative interfer- ence with the just local rights of autonomous communi- ties, and these amendments have been the subject of varient and sometimes discordant constructions by the courts, as will appear from the sections which follow. The practical importance of accurate knowledge on this subject is manifest when it is considered that in this country in the past three decades, the legislatures of many states have attempted to take unto, or transfer to, the state much of the purely local government of cities and towns within their jurisdictions in various ways, but mainly by appointing or regulating the ap- pointment by the state of many of the local officers, which attempts, however strange they may seem to those fa- miliar with the historical development of municipal in- stitutions in England and in this country, have found favor in many of the courts.^ It is obvious that a question of this character, as re- marked by Judge Cooley, who has given this subject profound study, is of the highest practical interest and concern, "which cannot be answered without a careful scrutiny of the structure of our government and an examination of the principles which underlie free insti- tutions in America." He characterized such legislation "as a blow aimed at the foundation of our structure of liberty," and that when the state thus "reaches out and draws to itself and appropriates the powers which from time immemorial have been locally possessed and exer- cised, and introduces into its legislation the centralizing ideas of Continental Europe, under which despotism, whether of monarch or commune, alone has flourished, we seemed forced back upon and compelled to take up and defend the plainest and most primary axioms of free government, as if even in Anglican liberty, which has been gained step by step, through extorted charters and bills of rights, the purishment of kings and the 2. §§ 54, 69 to 71 supra. 378 Municipal Coepobations. § 165 overthrow of dynasties, notHng was settled and nothing established."* Such legislation emphasizes the fact that the original purpose of municipal corporations, in a large measure, has been forgotten, and that the state erroneously re- gards them as organs for the general public administra- tion of central affairs, without autonomous rights or inherent powers of local self-government. Often the leg- islature treats all administrative functions discharged by cities as part of the general state administration, and as therefore subject to legislative regulation and control.* § 165. General legal doctrine stated. The usual judicial view is that, neither is the charter of a municipal corporation nor any legislative act con- ferring power or regulating the use of property held by it for governmental (state) purposes a contract within the meaning of the constitutional prohibition of laws impairing the obligation of contracts.^ Therefore, the general legal doctrine, supported by an unbroken line of authorities, is that, political powers conferred upon pub- lic corporations for the local government of a place are 3. People V. Hurlbut, 24 Mich. S. 644; Rogers v. Burlington, 3 44, 95 et seg. 109, 9 Am. Rep. 103. Wall. (U. S.) 654; Layton v. New See People v. Morris, 13 Wend. Orleans, 12 La. Ann. 515; State v. (N. Y.) 325, 334. B. & O. R. R. Co., 3 How, (U. S.) 4. See Goodnow, Mun. Home 534; affirming same case in 12 Rule; Goodnow, Mun. Problems; Gill, and J. (Md.) 399; Watson Goodnow, City Government in the Seminary v. Pike County, 149 Mo. United States; 1 Bryce, Am. Com. 57, 45 L. R. A. 675. p. 630 et seg.; Fairlie, Local Gov- "Legislation impairing the obli- ernment of Counties, Towns and gation of contracts," 25 Am. Law Villages, ch. Ill, p. 53; Rowe, Reg. (U. S.) 81, 83, 84. Problems of City Government, ch. "Legislative Power to Amend VI; Oberholtzer, Home Rule for Charters," 11 Am. Law Reg. (N. our American Cities. S.) 1; Cooley's Const. Llm. (7th 5. Covington v. Kentucky, 173 Ed.), p. 266; Black on Const. U. S. 231, 241, 19 Sup. Ct. 383; Prohib., sees. 45, 46; 1 Hare's Am. Meriwether v. Garrett, 102 U. S. Const. Law, p. 627 et seg. 472; New Orleans v. Clark, 95 U. §165 EuLE AS TO Legislative Contkol. 379 not vested rights as against the state, and where there is no constitutional restriction, either express or implied, on the action of the legislature it has absolute power to create, change, modify or destroy them at pleasure.' e. Alaiama. State v. Mobile, 24 Ala. 701. Arkansas. Eagle v. Beard, 33 Ark. 497, 504; Vance v. Little Rock, 30 Ark. 435; State V. Jen- nings, 27 Ark. 419. California. In re Sanitary Board, Cal. (1910), 111 Pac. 368. San Francisco v. Canavan, 42 Cal. 541, 557, 558; Fragley v. Phelan, 126 Cal. 383, 58 Pac. 923; Johnson V. San Diego, 109 Cal. 468, 30 L. R. A. 178, 42 Pac. 249; Payne v. Treadwell, 16 Cal. 220, 233; Gro- gan V. San Francisco, 18 Cal. 590; Hart v. Burnett, 15 Cal. 568, 573; Sinton v. Asbury, 41 Cal. 525; Underliill v. Sonora. 17 Cal. 172; People v. Burr, 13 Cal. 343; People V. Hill, 7 Cal. 97. Colorado. People ex rel. v. Earl, 42 Colo. 238, 257, 94 Pac. 294; Colorado Springs v. Neville, 42 Colo. 219, 93 Pac. 1096; Val- verde v. Shattuck, 19 Colo. 104, 34 Pac. 947, 41 Am. St. Rep. 208. Delaware. Coyle v. Mclntire, 7 Houst. 44, 40 Am. St. Rep. 109, 30 Atl. 728. Georgia. Churchill v. Walker, 68 Ga. 681; Atlanta v. Gate City Gas Light Co., 71 Ga. 106. Idaho. State ex rel. v. Steunen- berg, 5 Idaho 1, 45 Pac. 462. Illinois. People v. Niebruegge, 244 III. 82, 91 N. E. 115; People v. McBrlde, 234 111. 146, 84 N. B. 865; Cicero v. Chicago, 182 111. 301, 309, 55 N. E. 351; People v. Chicago, 51 111. 17, 2 Am. Rep. 278; Fox y. Kendall, 97 111. 72. 78; People V. Brown, 83 111. 95; Sang- mon County v. Springfield, 63 111. 66; Coles v. Madison County, 1 Breese (111.) 120; Robertson v. Rockford, 21 111. 451; People ex rel. T. Wren, 5 111. 269. Indiana, State ex rel. t. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566, 29 N. B. 595; Wiley V. Bluffton, 111 Ind. 152, 12 N. E. 165; Eichels v. Evansville Street Ry Co., 78 Ind. 261, 41 Am. Rep. 561. Iowa. Carr v. District Court (Iowa, 1910), 126 N. W. 791; McSurely v. McGrew, 140 la. 163, 118 N. W. 415; Mortord v. Unger, 8 Iowa 82. Kentucky. Boyd v. Chambers, 78 Ky. 140. Louisiana. State v. Flanders, 24 La. Ann. 57. Maine. Yarmouth v. North Yarmouth, 34 Me. 411, 56 Am. Dec. 666. Maryland. Pumphrey v. Balti- more, 47 Md. 145, 28 Am. Rep. 446; Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Hagers- town V. Sehner, 37 Md. 180. Massachusetts. Prince v. Crocker, 166 Mass. 347, 359, 44 N. E. 446, 32 L. R. A. 6l0. Minnesota. Schlgley v. Waseca, 106 Minn. 94, 118 N. W. 259; Daly V. St. Paul, 7 Minn. 390. Mississippi. Martin v. Dix, 52 Miss. 53, 24 Am, Rep. 661. Missouri. St. Louis v. Russell, 9 Mo. 507; St. Louis v. Allen, 13 Mo. 400; State ex rel. v. St. Loul» 380 Municipal Cobpoeations. U65 The doctrine is carried to the extreme limit by Shars- wood, J., in an early Pennsylvania case, where he says that a municipal corporation "is merely an agency in- stituted by the sovereign for the purpose of carrying out County, 34 Mo. 546; State ex rel. V. Linn County, 44 Mo. 504; St. Louis V. Shields, 52 Mo. 351; State ex rel. v. Miller, 66 Mo. 328. Nebraska. Van Horn v. State, 46 Neb. 62, 64 N. "W. 365; State ex rel. y. Holden, 19 Neb. 249, 27 N. W. 120. New Jersey. Booth y. MoGuin- ness, N. J. Er. &' App. (1910), 75 Atl. 455; Paterson v. Society Use- ful Mfrs., 24 N. J. L. 385; Rader V. Road District, 36 N. J. L. 273. New York. Wilcox v. McClellan, 110 N. Y. App. Diy. 378, 97 N. Y. Supp. 311, affirmed 185 N. Y. 9, 77 N. E. 986; Clarke v. Rochester, 24 Barb. (N. Y.) 446, 471, 472; People ex rel. V. Draper, 15 N. Y. 532; People v. Morris, 13 Wend. (N. Y.) 325, 331; Scott y. Saratoga Springs, 131 N. Y. App. Diy. 347, 921, 115 N. Y. Supp. 796. North Carolina. Lutterloh v. Fayetteyille, 149 N. C. 65, 62 S. E. 758; Wharton v. Greensboro, 146 N. C. 356, 358, 59 S. E. 1043; Harriss y. Wright, 121 N. C. 172, 28 S. E. 269; Wallace y. Sharon Tp., 84 N. C. 164. Oregon. Portland, etc. R. Co. V. Portland, 14 Oreg. 188, 12 Pac. 265, 58 Am. Rep. 299. Pennsylvania. Com. y. Molr, 199 Pa. St. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St. Rep. 801; Perkins v. Slack, 86 Pa. St. 270; AUentown y. Wagner, 27 Pa. Super. Ct. 485f 490. Rhode Island. Horton y. New- port, 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512. Tennessee. Luehrman y. Tax- ing District, 2 Lea (Tenn.) 425; State y. Frost, 103 Tenn. 685, 54 S. W. 986. Vermont. Montpelier v. East Montpelier, 29 Vt. 12, 18, 67 Am. Dec. 748. West Virginia. Board of Educa- tion V. Board of Education, 30 W. Va. 424, 429, 4 S. E. 640. ' United States. U. S. v. B. & O. R. R. Co., 17 Wall. (U. S.) 322, 329. "Legislatiye control of Munici- pal Corporations," 8 Cent. L. J. 3; Black on Constitutional Prohibi- tions, sec. 47; Cooley's Const. Lim. (6th Ed.) 228. Legislative power oyer Munici- pal Corporations, see note to Daly y. Morgan, 69 Md. 460, 16 Atl. 287, 1 L. R. A. 757'. Legislative controi is para- mount. In Barnes y. District of Columbia, 91 ¥. S. 540, 544, 546, which was an action for personal injuries on account of the de- fective condition of a street of the city of Washington, it was declared that a municipal corpo- ration is but a department of the state in the performance of all its duties, including those questions strictly local or internal, and that all municipal authority emanates from the legislative authority enacting the extent and regu- lating the distribution of powers as well as the manner of select- ing and compensating its agents. In Laramie Co. y. Albany Co., et al., 92 U. S. 307, 309, wherein §165 Exile as to Legislative Conteol. 381 in detail the objects of government — essentially a revo- cable agency — having no vested right to any of its powers or franchises — the charter or act of erection being in no sense a contract with the state — and therefore fully subject to the control of the legislature, who may enlarge It -was sought by the legislature of the territory of Wyoming to organize two new counties and In- clude therein a part of an old county without making provision for the apportionment of Its dehts and ■ liabilities, the court, through Mr. Justice Clifford, held that mu- nicipal corporations, as well as counties, derive all their powers from the legislature, the source of their creation, except the con- stitution provide otherwise, and that they have no Inherent juris- diction to make laws or to adopt governmental regulations. Au- thority to effect such objects must be conferred by the legislature, and that the legislature in grant- ing such powers did not divest Itself of any power over the inhabi- tants of a district which it pos- sessed before the charter was granted; that by legislative au- thority such corporation might enlarge or diminish its powers, extend or limit its boundaries, consolidate two or more Into one, and regardless of whether it be unwise or unjust, abolish the mu- nicipality altogether. In Mt. Pleasant v. Beckwith, 100 U. S. 514, 524, 25 L. Ed. 699, wherein It was sought to con- solidate two towns in Wisconsin, Mr. Justice Clifford again held that municipal corporations de- rive all their powers from the legislature which creates them, subject to constitutional limita- tions, and that they have no In- herent jurisdiction to make laws or adopt governmental regula- tions other than such as are ex- pressly or impliedly derived from their charters and the statutes of the state, and that they are sub- ject to certain legal obligations and duties which may be in- creased or diminished at the pleasure of the legislature which created them. In Meriwether v. Garrett, 102 U. S. 472, 511, it was held that the right of the state to repeal the charter of Memphis could not be questioned. That the powers of a city are such as the legislature may confer, and these may be en- larged, abridged or entirely with- drawn at its pleasure, and that there Is no such thing as a vested right held by an individual in the granting of a legislative power to them. In the case of Metropolitan R, R. Co. V. District of Columbia, 132 U. S. 18, wherein It was sought to recover from the Dis- trict of Columbia the cost of maintaining pavements In a street. It was held that the sover- eign power of the District of Co- lumbia is vested in the Govern- ment of the United States, and not In the corporation of the Dis- trict. In Williams v. Eggleston, 170 U. S. 304, 309, 310, wherein the legislature had cast the burden of 382 Municipal Cokpoeations. §165 or diminisli its territorial extent or its fuiictioiis, may change or modify its internal arrangement, or destroy its very existence, witli the mere breath of arbitrary dis- cretion. Sic volo, sic jubeo, that is all the sovereign authority need say. * * * The sovereign may continue the construction of a new bridge upon certain towns, tlie plaintiff in error insisted that he was denied equal protection of the law because these five towns w«re put in a class by themselves, or- ganized into a single municipal corporation, and separated from other towns in the state by being subjected to different control in respect to highways, it was held that the regulation of municipal corporations is a matter entirely within the domain of state con- trol, and the state Is not com- pelled to grant to all its munici- pal corporations the same terri- torial extent or the same duties and powers. Placing one part of the state under one municipal organization, and another part of the state under another organiza- tion of an entirely different char- acter was held to be matters of a purely local nature in respect to which the power of the state is not limited, and it may decide whether the government for local purposes shall be by county, city, or township organization. In Atkins v. Kansas, 191 V. S. 207, 220, 221, by statute it was provided that eight hours should constitute a day's work for all laborers employed by or on behalf of the State, or any of its mu- nicipalities, etc. In this action it was sought to declare the statute illegal. Mr. Justice Harlan held that. Inasmuch as municipal cor- porations are creatures and mere political sub-divisions of the state for the purpose of exercising a part of its powers, a restriction to withhold all such power is sub- ject only to the fundamental con- dition that the collective and in- dividual rights of the people of the municipality shall not be en- tirely destroyed, and that such work and employment, being of a public character, was absolutely under the control . of the state, that its municipal agents act by its authority and the state has ample power to prescribe the con- ditions under which it will permit work of such character to be done. The discretion of the legisla- ture in the distribution of powers of local government as between a city and a county government is absolute when not restrained by some constitutional provision. In re Allison, 172 N. Y. 421, 65 N. E. 263. Burdens. Legislative power to impose burdens, arbitrarily upon towns and cities without their consent, and for purposes outside of their proper municipal func- tions. Hasbrouck v. Milwaukee, 13 Wis. 37; State ex rel. v. Taffan, 29 Wis. 664, 687. Public purpose in taxation; conferring power on towns and cities to tax for. Curtis v. Whip- ple, 24 Wis. 350; Whiting v. R. R., 25 Wis. 167; State ex rel. v. Tappan, 29 Wis. 664, 684. §165 EuLE AS TO Legislative Conteol. 383 its corporate existence, and yet assume or resnme the appointments of all its officers and agents into its own hands; for the power which can create and destroy can modify and change."^ This is a type of many judicial assertions on this Sub- ject; however, this broad conclusion is doubted by more recent authorities, which usually recognize the principle that, while the state may "shape the local institutions, it cannot abolish them, and, without substituting others, take all authority to itself. ' ' * 7. Philadelphia v. Fox, 64 Pa. St. 169, 180, 181, per Sharswood. J., approved in Darby v. Sharon Hill, 112 Pa. St. 70; San Fran- cisco V. Canavan, 42 Cal. 541, 557, 558; U. S. V. B. & O. R. R. Co., 17 Wall. (U. S.) 322, 329. "Cities are as much the creat- ures of legislative will as are counties, and what may be done with the one, they have authority to do with the other." Gutzweller V. People, 14 lU. 142, 143, per Caton, J. The powers of a municipal cor- poration "may be resumed at any time by the legislature." Cham- bers V. St. Louis, 29 Mo. 543, 576, per Scott, J. "Public corporations are the auxiliaries of the state In the im- portant* business of municipal rule and are called into being at the pleasure of the state and the same voice which speaks them into existence can speak them- out." Ewing V. Hoblitzelle, 85 Mo. 77. Compare this statement with the following' later Missouri de- cisions: St. Louis V. Dorr, 145 Mo. 466, 46 S. W. 976; Kansas City ex rel. v. Scarrltt, 127 Mo. 642; State ex rel. v. Field, 99 Mo. 352; Murnane v. St. Louis, 123 Mo. 479, 27 S. W. 711; which properly declare that the "important busi- ness of municipal rule," is a local and not a state matter. 8. Judge Dillon doubts this conclusion and appears to adopt ' the observations of Judge Cooley, contained in his work on Taxation (2nd Ed.), ch. 21, p. 678, where he says that "in the general framework of our republican goy- ernments nothing is more distinct and unquestionable than that they recognize the existence of local self-government and contemplate its permanency. Some state con- stitutions do this in express terms, others by necessary impli- cation." He admits that the legislature has usually a large au- thority in determining the extent of local powers and the frame- work of local government; "but while it may shape the local in- stitutions, it can not abolish them, and, without substituting others, take all authority to it- self." 1 Dillon, Mun. Corp. (5th Ed.), Note 2, pp. 218, 219. Legislative control of munici- pal corporations. State ex rel. v. Williams, 68 Conn. 131, 48 L. R. A, 405, 35 Atl. 24, 421. 384 Municipal, Coepobations. §§166, 167 § 166. Legislature may exercise compulsory authority in state affairs. The general theory deducible from the authorities may be stated broadly thus: 1. The legislature creates mu- nicipal corporations, defines and limits their powers, enlarges or diminishes them at will, points out the agen- cies which are to execute tb.em, and possesses such gen- eral supervision and control of them as it shall deem proper and needful for the public welfare.' 2. Thus it follows that, in matters of public concern, such as relate to the performance of functions by the municipal corporation as the agent of the state, the leg- islature is not limited to conferring a discretionary power, hut may exercise compulsory authority, where the local officers or agencies neglect or refuse to discharge their public duty in providing for the public needs of the locality, or in voting or levying the proper taxes for public purposes.^" Touching duties which the people in the several locali- ties owe to the state at large, it is manifest, they cannot be allowed a discretionary authority to perform them or not as they may choose, for as tersely stated by Judge Cooley, "Such an authority would be wholly inconsistent with anything like regular or uniform government in the state."" § 167. Limitations of legislative control exist. Legislative control of municipal corporations is not without its limitations. Many of our judicial decisions 9. People ex rel. v. Detroit, 28 Mich. 481; Bay City v. State Mich. 228, 234, 15 Am. Rep. 202, Treasurer, 23 Mich. 499, 503; Note per Cooley, J.; People v. Hurlbut, by T. Burwell, 11 Am. L. Reig. 24 Mich. 44, 96 et seq., 9 Am. (N. S.) 85, 86. Rep. 103. 11. People ex rel. v. Detroit, 10. Cases in last note. 28 Mich. 228, 236, 15 Am. Rep. State ex rel. Hawes v. Mason, 202. 153 Mo. 23, 54 S. W. 524; State See Goodnow, City Government ex rel. v. St. Louis County, 34 In the United States, p. 39 et seq. Mo. 546; People v. Mahaney, 13 § 168 post, § 167 Limitations of Legislative Conteol. 385 have demonstrated. frequently the historical fact that, in this country, from the beginning,, political powers have been exercised by the citizens of the various local com- munities, as local communities, and, as generally recog- nized, this constitutes the most important feature of our system of government. Moreover, it is difl&cult to. accept in its entirety the doctrine of absolute unlimited legisla- tive control, if the view should be adopted which is un- doubtedly historically correct, that local self-government ^ of the municipal corporation does not spring from, nor exist by virtue of, written constitutions, nor is it a mere privilege conferred by the central authority. The fact is, as repeatedly pointed out, that the people of the various organized communities exercise their rights of local self- government under the protection of these fundamental principles which were accepted, without doubt or ques- tion, when the several state constitutions were pro- mulgated.^^ Therefore, it appears clear that in a government in which the legislative power of the state is not omnip- otent, and in which it is axiomatic that local self-gov- ernment is not a mere privilege, but a matter of absolute political right, the existence of unlimited authority in the law making body to concentrate all the powers of local government in the state does not exist.^^ 12. §§ 54, 69 to 71 supra. Maryland. Talbot Co. v. Queen 13. California. Graham v. Ann Co., 50 Md. 245, 259. Fresno, 151 Cal. 465, 472, 91 Pac. Michigan. People ex rel. v. De- 147; Blanding v. Burr, 13 Cal. 343, troit, 29 Mich. 108, 15 Am. Rep. 351. 202; People v. Hurlbut, 24 Mich. Indiana. State ex rel. v. Denny, 44, 9 Am. Rep. 103. 118 Ind. 449, 21 N. E. 274, 4 L, R. Montana. Helena Consolidated A. 65. Water Co.' v. Steele, 20 Mont. 1, Iowa. State ex rel. v. Barker, 49 Pac. 382, 37 L. R. A. 412. 116 la. 96, 89 N. W. 204, 57 L. R. Nebraska. State ex rel. v. A. 244, 93 Am. St. Rep. 222. Moores, 55 Neb. 480, 76 N. W. 175, Kentucky. Lexington v. Thomp- 41 L. R. A. 624. son, 113 Ky. 540, 24 Ky. L. Rep. New York. Rathbone v. Wlrth, 384, 68 S. W. 477, 57 L. R. A. 775, 150 N. Y. 459, 45 N. B. 15, 34 L. 101 Am. St. Rep. 361. R. A. 408. 1 McQ.— 25 386 Municipal Cobpoeations. § 168 The restriction is outlined thus by the learned Judge Cooley: "The state may mould local institutions accord- ing to its view of policy or expediency; but local gov- ernment is a matter of right, and the state cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it would be equally admissible to allow the people full control in their local affairs or no control at all."** § 168. Same subject — ^Judge Cooley's view — confined to the corporation as an agency of the state in its government. As we have seen, a municipal corporation is in part a public agency of the state, and in part it is possessed of local franchises and rights which pertain to it as a legal personality or entity for its gwasi-private (as distin- guished from public) corporate advantage.*^ The general doctrine as to the limitation of legislative control is clearly expressed by Judge Cooley in a lead- ing case. He says: "The proposition which asserts the amplitude of legislative control over municipal corpora- tions, when confined, as it should be, to such corporations as agencies of the state in its government, is entirely sound. They are not created exclusively for that pur- pose, but have other objects and purposes peculiarly local, and in which the state at large, except in conferring the power and regulating its exercise, is legally no more Texas. Morris & Cummings v. Rep. 566; State ex rel. v. Smith, State, 62 Tex. 728. 44 Ohio St. 348, 7 N. E. 447, 12 United States. WoW v. New Or- N. E. 829. leans, 103 U. S. 358. 14. People v. Hurlbut, 24 Mich. Cases recognizing meagre limi- 44, 108, 9 Am. Rep. 103; David- tations. In re Senate Bill, 12 son v. Hine, 151 Mich. 294, 298, Colo. 188, 21 Pac. 481; Com. v. 115 N. W. 246, 14 Det. Leg. N. Plaisted, 148 Mass. 375, 19 N. E. 957. 224, 2 L. R. A. 142, 12 Am. St. 15. Sees. 87, 107 supra. § 16'9 Limitations of Legislative Contbol; 387 , concerned than it is in the individual and private con- cerns of its several citizens. * * * It is a fundamental principle in this state (Michigan), recognized and per- petuated by express provision of the Constitution, that the people of every hamlet, town and city of the state are entitled to the benefits of local self-government. But authority in the legislature to determine what shall be the extent of the capacity in a city to acquire and hold property is not equivalent to and does not contain within itself authority to deprive the city of property actually acquired by legislative permission. As to property it thus holds for its own private purposes, a city is to be regarded as a constituent in state government, and is entitled to the like protection in its property rights as any natural person who is also a constituent. The right of the state is a right of regulation, not of appropriation. It can- not be deprived of such property without due process of law. And when a local convenience or need is to be sup- plied in which the people of the state at large, or any portion thereof outside the city limits, are not concerned, the state can no more by process of taxation take from the individual citizens the money to purchase it than they could, if it had been procured, appropriate it to the state use. • * * From the very dawn of our liberties the principle most unquestionable of all has been this: that the people shall vote the taxes they are to pay, or be permitted to choose representatives for the purpose."^* § 169. Same subject — certain limitations specified. This immunity from unlimited legislative control has been expressly recognized in decisions of the United States Supreme Court. The established doctrine of that court is, that, with respect to its private or proprietary rights and interests the municipal corporation may be I 16. People ex rel. Park Comrs. Mich. 228, 15 Am. Rep. 202. V. Common Council of Detroit, 28 See § IGG supra. 388 Municipaij Coepobations. §169 entitled to the constitutional protection relating to the impairment of contracts.^'' And this salutary doctrine has been declared often by the courts of last resort in the several states, as will appear in the sections which follow. In the absence of constitutional restriction, either ex- press or implied, unlimited exercise of power by the state extends to all of those things which the legislature does in the creation of the municipal corporation, but what the legislature does not create by such act of incorpora- tion, and which existed independently of legislative ac- tion, is something which, according to the doctrine of the best considered cases, the legislature cannot dispose of or destroy. The community, with certain local rights and privileges, and property, as buildings and public ' improvements, which the legislature incorporates by giv- ing to it a legal entity and personality, is not created by legislative action. The legislature merely creates this legal personality and invests it with certain privileges and powers, some of which affect the state at large, but most of which relate to suppljdng local necessities and conveniences. Although the municipal corporation, through its of- ficers and agents, administers within its corporate limits certain of the state '^ powers and duties, it should be emphasized that this is not the object of incorporation, since (as mentioned often by judges in treating this sub- ject) such public powers and duties can as well be per- formed by a local organization not incorporated, which was the case in England prior to the formal incorpora- tion of its municipal boroughs, or through the usual township and county organizations. The fact is that the existence of the municipal corporation arises from the 17. New Orleans v. New Private and public rights dls- Orleans Water Co., 142 U. S. 79, tlnguished. Small t. Danville, 51 91, 12 Sup. Ct. Rep. 142. Me. 359, 362; San Francisco Gas See Covington v. Kentucky, 173 Co. v. San Francisco, 9 Cal. 453; ■0. S. 231, 19 Sup. Ct. Rep. 383, Western College v. Cleveland, 12 387. Chio St. 375. § 170 Limitations of Legislative Conteol. 389 peculiar needs, conveniences and comforts of a compactly settled community, with which the state at large, as a rule, has little or no concern. The public powers of the state are exercised by the municipal authorities as a mere matter of public convenience, rather than as one of necessity.^* § 170. The limit of legislative controlis to be determined, if at all, by the adjudicated cases. In view of the contrariety of judicial opinion touch- ing the precise limit of legislative control of municipal corporations, it will be necessary to examine with care the adjudicated cases, and where it is sought to know the restrictions in a given jurisdiction relating to any particular subject the course of judicial decisions of that state must be critically analyzed, however, inasmuch as the expressions of the courts of the same state in setting forth the reasons for their judgments are not in full accord, the searcher will frequently be perplexed in en- deavoring to deduce the rule or principle to solve his case at hand. .If he takes the last decision of the court of final resort of his state as his guide he may witness a reversal when the same question is again presented to that court for determination. Such appears to be the unsettled condition of the law relating to the exact limit of legislative control of municipal corporations.'® The ease with which legislatures sometimes evade plain constitutional restrictions on their power to admin- ister local affairs of cities through officers and boards 18. Legislatures can alter or 55 Neb. 480, 76 N. W. 175, 41 L. E, repeal at will acts giving power A. 624, and State v. Seavy, 22 to municipal corporations, unless Neb. 454, 35 N. W. 228. the language of the act is too Compare also. Brown v. Galves- clear to admit of doubt that they ton, 97 Tex. 1, 75 S. W. 488, with parted with that power. St. ex parte Lewis, 45 Tex. Grim. Louis V. Shields, 52 Mo. 351. App. 1; Ex parte LeVine, 46 Tex. 19. Compare Redell v. Moores, Grim. App. 364, and ex parte An- 63 Neb. 219, 88 N. W. 248, 55 L. derson, 46 Tex. Grim. App. 372. R. A. 740, with State v. Moores, Cee § 194 post. 390 Municipal Coepoeation-s. § 171 created , by them has been surprising to Constitution framers. On the other hand, the impropriety of tying the hands of the legislature (the body which in theory represents all of the people of the state alike) by organic provis- ions, and inhibiting the necessary legislation in any part of the state has been generally recognized, and this has resulted in constitutional provisions more or less flexi- ble, and occasionally, susceptible of more than one con- struction. Therefore, as above stated, our decisions of courts of last resort relating to this subject are more or less conflicting, and even in the decisions of the same state there is this lack of harmony, so that it is fre- quently difficult, and sometimes impossible, for those learned in the law to determine just where the power of the legislature to interfere stops and the right of the city to be let alone begins.*®* § 171. Local self-government is recognized and sought to be perpetuated by state constitutions. The intention to preserve and perpetuate the ancient right of local self-government of municipalites which, as Judge Cooley tersely said, the law recognizes as "of common law origin, and having no less than common law franchises," is apparent throughout the scope of most of the state constitutions."" The bill of rights de- clares that local self-government belongs to the people of the state. Counties are established as local subdivis- ions of the state and possess powers of local administrk- tion, and in many states township organization existsj or may be adopted.** Generally, counties are divided into 19a. See Goodnow, City Govern- v. Gill, 58 Wash. 468, 108 Pac. ment in the United States, pp. 33 1080. to 42; Goodnow, Municipal Home 21. §§ 64, 66 supra. Rule. (A most excellent -work.) 3 R. S. Mo. 1909, §§ 11652 to 20. See, Scott v. Saratoga 11656; State ex rel. v. Gibson, Springs, 199 N. Y. 178, 92 N. B. 195 Mo. 251; Robinson v. Jones, 393, affirming 131 N. Y. App. Div. 71 Mo. 582; Ronsey v. Wood, 47 347, 115 N. Y. Supp. 796; Bussell Mo. App. 465. § 172 ' Local Self-Government. 391 townships for purposes of local self-government.^* In California, Colorado, Minnesota, Missouri, Oklahoma, Oregon and Washington certain cities, as mentioned elsewhere, are authorized to frame charters for their own local government.*^ Most of the Constitutions contain limitations of legis- lative power relating to municipal corporations, as. for example, prohibitions against special or local laws affect- ing them;** regulations as to classification of such cor- porations,*^ and requirements of a uniform system of local government ; *^ that laws of a general nature shall have a uniform operation throughout the state ; " per- mitting the inhabitants of each locality to choose their local officers,*^ and forbidding state control of municipal ofiBcers and their functions.*® These provisions and others with the same end in view are treated in the sections which follow.^" § 172. Legislative interference — evasion of constitu- tional limitations. The constitutional provisions herein considered were designed to insure to each incorporated community a full measure of home rule and to prevent legislatures from tampering with purely local affairs. But notwithstand- ing, evasions of these prohibitions have often occurred. Since a leading Pennsylvania decision in 1875,^"^ in which the theory that classification of cities by population was general legislation received its first strong indorsement, there has been a heavy record of special legislation, but most of it has been feebly disguised.^* 22. 3 R. S. Mo. 1909, §§ 11650, nied. The inhabitants of a city have no inherent right to direct its affairs; such right post, must be conferred by the legis- lature. Ancrum v. Camden Water Co., 82 S. C. 284, 64 S. B. 151. 31. Wheeler v. Philadelphia, 77 Pa. St. 338. 32. Murnane v. St. Louis, 123 30. Local self-government de- Mo. 492, 27 S. W. 71L 11651. 23. § 127 supra. 24. §,§ 187, 198 et seq. 25. § 197 et seq. post. 26. § 191 post. 27. § 193 post. 28. §§ 176 to 183 post. 29. §§ 182, 183 post. 392 Municipal Coepoeations. § 172 The Philadelphia City Hall case carries the doctrine of legislative interference to an extraordinary extent. Perhaps this is the most flagrant instance of abuse of legislative power relating to municipal corporations that ever occurred in this country. In 1870 the legislature of Pennsylvania passed an act designating certain per- sons whom the act appointed "commissioners to control the erection of new municipal buildings in Philadelphia. The act constituted this body a close and perpetual cor- poration, since it was empowered "to fill any vacancies which might happen by death, resignation or otherwise. ' ' The commissioners were given unlimited power in the premises, as authority to create debts and whose pay- ment was to be enforced by compulsory tax levies by the local authorities who were forced to register the will of the state board. Thus in the language of Biddle, J., "a body not chosen by the taxpayers, nor removable by them, nor accountable to them, are here authorized to levy upon them any sum of money they may at their discretion require. ' ' ** The constitutionality of the act was sustained,^* and the city was forced to furnish the requisite money and, as expressed by Hare, "for nearly twenty years all the money that could be spared from immediate and pressing needs" was " compulsorily expended upon an enormous pile which surpasses. the town halls and cathedrals of the Middle Ages in extent, if not in grandeur." ^^ Paxson, J., of the supreme court of Pennsylvania, mentions that public attention was subsequently "drawn to the fact that irresponsible commissions, imposed upon the city by the legislature, and yet clothed with absolute control over the purse of the city in the prosecution of their work, were repugnant to the whole theory of our government;" and declared that "the public buildings at 33. Perkins v. Slack, 86 Pa. St. 35. Hare, Am. Const. Law, Vol. 270, 272. 1, Lecture 28, p. 630; see also 34. Balrd v. Rice, 63 Pa. St. Goodnow, Municipal Home Rule, 489; Struthers v. Philadelphia, 4 Chapter 2, pp. 25, 26. Weekly Notes of Cases, 378. §172 Local Self-Goveenment. 393 Broad and Market Streets were projected upon a scale of magnificence better suited for the capitol of an empire than the municipal buildings of a debt-burdened city." ^^ This legislation resulted in a new Constitution which went into effect in 1874, one provision of which forbid the legislature from delegating "to any special commis- sion, private corporation, or association, any power to make, supervise, or interfere with any municipal im- provement, money, property, or effects, whether held in trust or otherwise, or to levy taxes, or to perform any municipal function whatever."^'' The supreme court of Pennsylvania declared this pro- vision prospective only and not applicable to the com- missions existing anterior to its adoption.^* Legislative interference in New York has been exten- sive: its extent is indicated in the note.^* 36. Perkins v. Slack, 86 Pa. St. 270, 283, per Paxson, X, In dls- sentingr opinion. The building cost more than twenty-five million dollars. "A scheme more repugnant to all notions of local self-govern- ment than that which was forced upon the city and committed to this legislative oligarchy cannot well be conceived." 1 Dillon Mun. Corp. (5th Ed.), sec. 122. 37. Const. Pa. 1874, art. 3, sec. 20. ' See sec. 189 supra. 38. Perkins v. Slack, 86 Pa. St. 270, Paxson, J., dissenting, in which Sharswood, J., concurred, pp. 282, 284. 39. Legislative Interference in New York. The Metropolitan police bill, adopted by the legis- lature of New York in 1857, af- fords a striking example of the effect upon the people of state Interference in local affairs. This bill provided for the forma- tion of a metropolitan police dis- trict which embraced all the territory of New York City as well as that of certain adjacent districts and created a police commission, appointed by the governor, which was to take charge of and control the entire police force. This legislation was such a radical departure from the Idea of local administration which had obtained from the date that the city of New York secured its colonial charter, which had been confirmed by the first Con- stitution of the state and which gave that city home rule in all its fullness (as no act of the legis- lature relative to local affairs could take effect in the city with- out the approval by the people thereof), that determined resist- ance on the part of the people affected, headed by the local au- thorities, was interposed, lead- ing to blood shed. But the court 394 MuNICIPAI, COEPOEATIONS. §172 Likewise in Missouri th.e legislature has from time to time enacted laws seeking to control the purely local and internal affairs of the large cities of the state, St. Loilis, Kansas City and St. Joseph.*" The same is also true in Illinois, Indiana, Ohio, California, Nebraska, Massachu- setts and many other states which contain large cities. Legislative interference with local affairs in Michigan has perhaps been kept within narrower limits than in any other state, mainly, due no doubt, to the courageous position taken by its courts at the very beginning against such attempts. of appeals of New York finally settled the issue In favor of the state, holding that the mainte- nance of the police force was a central power and duty, and not a local function. People v. Draper, 15 N. Y. 532. In the chapter of Seth Low, ex- Mayor of Brooklyn, contributed to Bryce's American Commonwealth, Vol. I, p. 630, the author declares that "in every year of his term of office he was compelled to oppose at Albany, legislation seeking to make an increase in the pay of policemen and firemen without any reference to the financial ability of the city, or the other demands upon the city for the expenditure of money." The report of the Fassett Com- mittee of the senate of the same state appointed in 1890, gives de- tails of legislative regulation of local matters. "This shows that within six years (1884-1889), the legislature of New York passed 1284 acts relative to the thirty cities in the state. Of these, 390 acts affected the city of New York. In one year (1886), 280 of 681 acts passed by the legislature, i. e., between one-third and one- half of its entire work, interfered directly with the affairs of some particular county, city, village or town, specifically and expressly named," Goodnow, Municipal Home Rule, pp. 23, 24. Prom 1890 to 1897, 2793 special laws were passed relating to the cities of New York; 564 of them affected alone the City of Brook- lyn, and 1399 of them the City of New York. In 1891, ninety-five of them related to the City of New York, in 1892, 259, and in 1893, 288. Eaton, Government of Munio- ipalltles, p. 20, N. 2. 40. Legislative Interfenence in Missouri is stated by the author in The Municipal Code of St. Lpuis, 1901, p. 325, etc., sec. 37; and The Amended Charter of St. Louis, 1902, §S 40 to 46. ^ 173 Municipal and State Functions. 395 § 173. Municipal affairs defined and distinguished from state functions. "Purely municipal questions have not as yet been clearly differentiated" in all cases.*^ As relates to legis- lative control, the tendency of many courts seems to be "to regard everything within the administrative compe- tence of cities, as fixed by law, as municipal in character. ' ' However, this does not and should not go to the extent of the entire destruction of uniformity, or what may be termed "state unity" in government, "and the establish- ment of imperia in imperio." As expressed, in substance, by Prof. Goodnow, the theo- retically omnipotent parliament which opposes the idea of local autonomy has long been a principle of the Eng- lish law; and, to a considerable degree, notwithstanding our constitutional system of precise division of govern- mental powers, the principle has been incorporated, as a heritage, into our jurisprudence. From this theory the careful enumeration of municipal powers and the rule of strict construction naturally followed, which of necessity has resulted in frequent appeals to the legislature on the 41. Goodnow, Mun. Problems, See Cooley's Const. Lim. (6th ch. 4, p. 77. Ed.) 227. Municipal affairs defined. The "The generally understood Constitution does not "define what meaning of the term 'municipal are state purposes and what are affairs' is affairs relating to, or local purposes, but leaves us to involved in, the local government find the boundary line between of the inhabitants of any locality, them in right reason, the legisla- such as are generally managed tion of the state, and the adjudica- and controlled by a local govern- tions of the courts, as developed ing administration, illustrated in the history of the state at the practically every day in and by time of its adoption." State ex our country and city councils, con- rel. v. Owsley, 122 Mo. 68, 76. sisting of presiding officers and "It may not always be easy to councillors or aldermen, in whom determine what subjects are local are vested both legislative and ex- and municipal and what are not. ecutive authority in relation to That difBculty is not a new one." and affecting the local affairs of St. Louis V. Dorr, 145 Mo. 1. c. 479, the locality." Charlotte v. St. 480, 46 S. W. 976. Stephen, 32 N. Bruns. 292, 297. 396 Municipal CobpobIitions. § 173 part of local authorities, to exercise doubtful, desirable or indispensable powers through officers selected by the city or appointed by the state. When these occasions arose, the city's proper sphere of activity, as distin- guished from that of the state, was not, as a rule, con- sidered; hence, the confusion existing on this subject.*^ All of those public matters which concern the people of the state at large in common with the people of the particular locality, as the administration of justice, and the authority of the state generally, through and by leg- islative enactments administered by state officers or by virtue of the power of the central government, in the preservation of the public peace and affairs of like gen- eral character, although some of which may be in the hands of the local or municipal authorities, are matters of state or central jurisdiction. On the other hand, all of those public affairs wiich concern the inhabitants of the locality as an organized community apart from the people of the state at large, as supplying purely local needs, conveniences and com- forts like water,** light, as gas,** the establishment of sewers,*^ fire protection,*^* and the enforcement of by- 42. Goodnow, Mun. Prob., ch. in character. Harward v. St. 4, pp. 77, 78 ; Goodnow, Mun. Home Clair & M. L. & D. Co., 51 111. 130. Rule; Goodnow, City Government § 174 post. in the United States, p. 39 et sc-]. 45a. § 174 post. 43. South Pasadena v. Pasadena State ex rel. v. Denny, 118 Ind. L. & W. Co., 152 Cal. 579, 93 Pac. 382, 21 N. E. 252, 4 L. R. A. 279, 490; State ex rel. v. Barker, 116 24 Am. & Eng. Corp. Cas. 164; Iowa 96, 89 N. W. 204, 57 L. R. A. State v. Moores, 55 Neb. 480, over- 244, 93 Am. St. Rep. 222. ruling State v. Seavey, 22 Neh. §§ 174, 220 post. 454. 44. The matter of managing State board of control void, as gas works is a municipal affair, against local self-government. Western Sav. Fun. Soc. v. Phila- State v. Pox, 158 Ind. 126, 63 N. delphia, 31 Pa. St. 183. E. 19. 45. The supreme court of lUi- Contra, Redell v. Moores, 63 nois clearly indicates that drain- Neb. 219, 88 N. W. 243, 55 L. R. A. age and sewerage powers are cor- 740. porate rather than governmental § 174 Municipal and State Functions. 397 laws or ordinances touching the interests of the local corporation alone are essential matters of local concern,*' § 174. Same subject. The supreme judicial court of Massachusetts, although regarding the system of waterworks, the markets, hos- pitals, cemeteries, library and the system of parks of Boston as established and maintained essentially "for the benefit of the public," yet declares that they are "held more like the property of a private corporation," and are therefore protected from legislative interfer- ence.*^ The Missouri supreme court has held that the assess- ment and collection of costs for street improvements properly belongs to municipal affairs, and appertains to the local government of the corporation.*^ So the "mat- ter of assessing damages and benefits for grading and regrading streets naturally falls within the domain of municipal government. ' ' ** Accordingly, an act of the legislature empowering certain cities to establish and maintain a system of parks and boulevards was held void because it related "solely to matters of internal municipal government."^" In the control of parks the municipal corporation acts in a quasi private character Fixing compensation of, not for the accomplishment of general governmental in its nature, but public or political purposes, but is matter affecting municipality with special reference to the ben- in Its private or corporate capac- eflt of its own inhabitants." Mount ity. Legislative act fixing com- Hope Cemetery v. Boston, 158 pensation Is void. Lexington v. Mass. 509, 519, 33 N. E. 695, 35 Thompson, 113 Ky. 540, 68 S. W. Am. St. Rep. 515. 477, 57 L. R. A. 775, XOl Am. St. §§ 219-226 post. Rep. 361. 48. Murnane v. St. Louis, 123 46. 1 Dillon, Mun. Corp. (5th Mo. 479, ,27 S. W. 711. Ed.), sec. 97. 49. State ex rel. v. Field, 99 47. "In establishing all of these Mo. 352, 356. the city has not acted strictly as 50. Kansas City ex rel. v. Scar- an agent of the state government ritt, 127 Mo. 642, 29 S. W. 845. 398 Municipal, Coepoeations. U74 and for the exclusive benefit of the corporation.^^ The distinction is between the public and private character.*^ The supreme court of Missouri has emphatically de- clared: "We hold that the condemnation proceedings to, acquire lands for streets, parks, water works, sewers and the like clearly fall within municipal regulation. " ^^ Hence, "An act relating to boulevards in cities having a population of 300,000 inhabitants or more,"^* "deals with a subject of strictly municipal concern. ' ' ^^ But in granting a franchise to a railroad company to use the streets the municipal corporation acts as the agent of the state.^" So, the power as to wharfage is subject to legislative control, except as to rights of creditors."'' 51. State ex rel. v. Schweickardt, 109 Mo. 496. 52. People v. Chicago, 51 111. 17; People v. Detroit, 28 Mich. 228, 29 Mich. 108. Contra, State v. Smith, 44 Ohio St. 348. See § 221 post. 53. Kansas City v. Marsh Oil Co., 140 Mo. 1. c. 472, 41 S. W. 943. S^ee Kansas City v. Ward, 134 Mo. 172, 35 S. W. 600. 54. Laws Mo. 1891, p. 47. 55. St. Louis V, Dorr, 145 Mo. 1. c. 480, 46 S. W. 976. See Popper v. Broderick (Cal.), 123 Cal. 456, 56 Pac. 53; Morton V. Broderick, 118 Cal. 474, 50 Pac. 644. 56. State ex rel. K. C. v. Bast 5th St. Ry. Co., 140 Mo. 539, 41 S. W. 955. §§ 227 to 229 post. 57. St. Louis V. Shields, 52 Mo. 351. The St. Louis Court of Appeals has held that the right of the city to regulate wharfage is a right of property and not of sov- ereignity. St. Louis V. Schulen- burg & Boeckeler Lumber Co., 13 Mo. App. 56. Municipal boundaries. Cannot change city boundary by special act. Westport v. Kansas City, 103 Mo. 141; Wyandotte v. Wood, 5 Kan. 603. But this may be done if not fixed by charter. State v. Warner, 4 Wash. 773. City organized under Const., Art. IX, sec. 16, may extend its boundaries. Kansas City v. Steg- miller, 151 Mo. 189, 52 S. W. 723. County business. Building a county court house is county busi- ness within the meaning of a constitutional provision forbid- ding the passage of special or local laws regulating county busi- ness. Kraus V. Lehman, 170 Ind. 408, 83 N. B. 714, 716. Park commissioners. Act pro- viding for park commissioner, to be appointed by the county, is valid. Oren v. Bolger, 8 Det. Leg. N. 675, 87 N. W. 366. See §§ 219 to 226 post. § 176 Selection of Local Officers. 399 § 175. Same — relations in which subject has been con- sidered. Respecting the question of legislative control, the dis- tinction between municipal and state affairs has been considered by judicial decisions in the following rela- tions: I. In distinguishing between local and state officers.^* II. In discussing legislative control, or interference, including consideration of the constitutional limitations, express or implied, of legislative power relating to the municipal corporation, as (1) prohibition respecting special or local legislation,*** (2) legislative amendment of municipal charters,*" (3) provisions as to classifica- tion of municipal corporations, and forbidding local or special laws,®^ (4) legislative control of municipal prop- erty,*2 (5) of streets,*^ (6) funds and revenues,"* and (7) power of the legislature to impose obligations, con- trol municipal contracts public improvements and liabil- ities.*^ III. The authority of municipal corporations to dispose of corporate property.** IV. Municipal liability for torts, including the man- agement of property.*^ V. Character of property which is exempt from exe- cution issued on judgments against the municipal cor- poration.*^ § 176. Right of the municipal corporation to select local officers. The historical trend of local government in this coun- try is all in one direction, and "includes the powei!' to 5S. §§ 176-183 post. 65. § 234 et seq. post. 59. §§ 187-196 post. 66. § 219 et seq. 60. § 216 post. Chapter on Corporate Property. 61. § 197 et seq. post. 67. Chapter on Municipal Lia- 62. § 219 et seq. post. bility for Torts. 63. §§ 227-229 post. 68. Chapter on Corporate Prop- 64. §§ 230-233 post. erty. 400 Municipal Cobpoeations. §176 choose, in some form, tile persons who are to administer the local regulations. Instances to the contrary, except where the power to administer was properly a state power, have been purely exceptional."^® The first formal charter of incorporation in England, it is said, was that issued to Kingston-upon-HuU in 1439, which did not confer, but recognized the right that the people of that borough "might elect yearly, from among themselves, one mayor and four bailiffs." ''° All the later English municipal charters recognized this right, and anterior and subsequent to Magna Charta, the principle that local affairs should be administered by local officers, selected by the local community, was never doubted or questioned, except by the English monarchs and their parasites, who eagerly grasped power and dominion.'^' 69. The appointment of the mayor of New York by the gov- ernor of the state, a custom which continued for a long time after the revolution, illustrates an ex- ception. People V. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103, citing Hammond's Pol. Hist, of N. Y., Vol. 1, p. 197. Contra. The Constitution of Mississippi expressly empowers the legislature to withdraw from the citizens of all municipalities even the power of choosing their own local officers. Miss. Const. 1890, sec. 139; Adams v. Kuyken- dall, 83 Miss. 571, 593, 35 So. 830. Right denied, see § 189 post. Right to select local officers by the local community is recognized in People v. Alberton, 55 N. Y. 50. 70. § 51 supra; Glover on Mun. Corp., p. 18; Goodnow, Mun. Home Rule, p. 12, citing Cox, Institu- tions of English Government, p. 728. 71. Interference with local concerns. By articles 15 and 16 of the Great Charter, it was stipu- lated that London and all other cities, boroughs, and towns should have the right to select their own officers and manage their own local concerns. Charles II sought to secure a forfeiture of local charters, so that he and the court party might dictate the choosing of municipal officers. As he con- trolled the judges, he easily ob- tained a decision adjudging the forfeiture of the charter of Lon- don on false and fictitious charges of sedition and illegal tolls, but, after the decision was rendered, Charles kindly consented to annul the judgment, provided the city would give him such a right of control over its elections of of- f.oers as to enable him to exclude persons not acceptable to the Crown. As is well known, like attempts were made to manage the local af- § 176 Selection of Local Officees, 401 It is also to be observed that in tbe historical fexamina- tion of the granting of, charters to local communities in the various countries of Continental Europe and in the development of these institutions the right of the local authorities to select their own officers is either granted or recognized/^ Each state Constitution doubtless means that every part of the state is to be under some system of localized authority emanating from the people thereof. "This is no mere political theory, but appears in the Constitution as the foundation of all our polity. There is no middle ground. A city has no constitutional safeguards for its people, or it has the right to have all its officers ap- pointed at home. Unless this power is exclusive, the state may manage all city affairs by its own function- aries. "''' The doctrine is elementary that all corporation officers must derive office from the corporation. This has been from time immemorial settled law. . "One undoubted right of the people is to choose, directly or indirectly, under the forms and restrictions prescribed by the legis- lature for reasons of general state policy, the officers of local administration and the board that is to make the local laws. ' ' ''* Thus laws consolidating the sewer, water and street commissions into one board, and designating certain persons as commissioners, to hold for the first year, are in violation of the Constitution of New York which requires officers of cities, towns and villages, whos€| election or appointment is not otherwise provided for in fairs of the American colonies, tempts on the part of the Crown. Such interference with local con- § 53 supra. trol in England and the colonies ,72. Chapter I, §§ 35 to 37, 40, was characterized at the time as 54 supra. gross wrongs, and in contraven- 73. Per Campbell, 0. J., In tion of constitutional doctrines. People v. Hurlbut, 24 Mich. 44, The outrages were so shocking 90, 9 Am. Rep. 103. that after the revolution of 1688 74. Cooley's Const. Lim. (6th one of the first acts of Parliament Ed.) 281, 282. was to circumvent such future at- 1 McQ.— 26 402 Municipal Coepobations. § 176 the Constitution, to be elected by tbe electors or ap- pointed by snch authorities thereof as the legislature shall designate J^ Likewise a provision of a city charter empowering the governor to appoint a commission having jurisdiction over the police, fire, health and street departments of the city was held unconstitutional ^by the Texas Criminal Court of AppealsJ^ However, the doctrine is supported that the legisla- ture may appoint local officers for a temporary purpose.'''' Accordingly it has been held in Georgia that, a legisla- tive act incorporating a town, which designates certain persons to act as mayor and aldermen until the election of their successors, does not violate a provision of the Constitution declaring that "the people of this state have the inherent sole and exclusive right of regulating their government and the police thereof;" nor a statute requii;- ing that in all elections by the people the electors shall vote by ballot. Nor is such act unconstitutional for the reason that the general assembly has no elective or ap- pointive power of officers of towns to which it grants charters.''* 75. See § 182 post. ing out a street and assessing the Saratoga Springs v. Van Nor- damages and benefits, etc., has der, 77 N. Y. S. 1020,- 75 App. been sustained in Minnesota. Da^ Div. 204; People v. State Board, ley v. St. Paul, 7 Minn. 390. See 174 N. Y. 417; People v. Dooley, People ex rel. v. McDonald, 69 N. 171 N. Y. 74. Y. 363. In New Yorli a state law enlarg- 78. Lambert v. Norman, 119 ing the term of a municipal officer Ga. 351, 46 S. E. 433. was held unconstitutional, since In an act creating a municipal It deprived the city of the legal office, an illegal provision requir- rlght to fill the vacancy. In re ing the governor to make provis- Haase, 83 N. Y. S. 932, 41 Misc. ional appointments does not in- Rep. 114. validate the whole act. Where 76. Ex parte Levine, 46 Tex. there is no exigency for a pro- Cr. App. 364, 81 S. W. 1206. visional appointment the leglsla- See § 189 post. ture has no power to provide for 77. The power of the legisla- such appointment. Moreland v. ture to appoint officers within a Millen, 126 Mich. 381, 8 Det. Leg. city for a specified purpose, as lay- N. 50, 85 N. W. 882. § 177 Eegulation of Selection of Officeks. 403 Althougli the doctrine stated in this section is sup- ported by the best , considered csfses, judicial decisions are not wanting which endorse the view that the legisla- ture may provide legally for the selection of local ofBcers by the central or state power, unless forbidden by the State Constitution^® Hence, it has been ruled that, under the Constitution of Texas, no right of local self-govern- ment, based on history or tradition, exists in a city, which precludes the legislature from making the mem- bers of its governing body gubernatorial appointees.*" The contrary has also been held in that state.*^ § 177. State may regulate selection of municipal officers. Under most of the State Constitutions the power to provide the method of selection of all elective officers of the municipal corporation belongs to the legislature, and such power is usually exercised by the state.*^ 79. Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, overruling State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624. 80. Brown v. Galveston, 97 Tex. 1, 75 S. W. 488, wherein the whole question is elaborately consider- ed, in the light of judicial decis- ion. This case is treated in a note to § 189 post. 81. See § 189 post, where the Texas decisions on this point are treated. 82. Const. Mo. 1875, art. VIII, sec. 1; State ex rel. v. Owsley, 122 Mo. 68, 26 S. W. 659; Ewing v. Hoblitzelle, 85 Mo. 64. Act postponing election one year, held valid. It was amend- ment of a municipal charter. De- troit V. Schmid, 8 Detroit Leg. N. 686, 87 N. W. 383. Manner of appointment, A legislative act abolishing the board of commissioners of parks and boulevards of Detroit appoint- ed by the mayor,- and providing for one commissioner, to be ap- pointed by the council, does not infringe the right of local self- government by empowering the council to appoint an ofiBcer other than ministerial. Oren v. Bolger (Mich. 1901), 87 N. W. 366, 8 Det. Leg. N. 675. Transferring powers. The leg- islature having vested a board with certain powers or duties rel- ative to the use and control of a city's streets, does not prevent it from transferring such powers or duties to another body at any time. Such authorities having no vested right to the continuance of any public powers or duties con- ferred upon them. Wilcox v. Mc- Clellan, 185 N. Y. 9, 77 N. B. 986. See § 225 post. 404 MuNICIPAIi. COEPOEATIOKS. §177 The authority of the legislature to regulate municipal offices, as providing the terms and conditions upon which they may be held, has been sustained in many jurisdic- tions.^* Thus it may be competent for the legislature to pass a civil service act, providing that the appoint- ment to municipal offices or positions shall be made according to merit and fitness, to be ascertained by com- petitive examination.** But it is clear that regulating the appointment or election of municipal officers and employees by the state is one thing and exercising the power of selection by state functionaries is another and an entirely different matter.®^ As stated by the Court of Appeals of New York, local self-government means the right of local communities and municipal corporations "to choose their local offi- cers, in all its reality, or it means nothing," and the proposition that the state should make the selection 83. Newton v. Board of Com'rs, 100 U. S. 548; Palestine v. West (Tex. Civ. Appeal), 37 S. W. 783; People V. King, 42 N. Y. Sup. 961; People V. Simis, 45 N. Y. Sup. 940, 18 App. Div. 199. 84. Illinois. People v. Kipley, 171 111. 44, 49 N. E. 229; Brennan v. People, 176 111. 620, 52 N. E. 353^; People V. Loeffler, 175 111. 585, 51 N. E.,785; Kipley v. Luthardt, 178 111. 525, 53 N. B. 74. Louisiana: Hope y. New Orleans, 106 La. 345, 30 So. 842. Massachusetts. Opinion of the Justices, 138 Mass. 601. New Torlc. Chittenden v. Wur- ster, 152 N. Y. 345, 46 N. E. 857; People V. Roberts, 148 N. Y. 360,^ 42 N.E. 1082; Rogers v. Buffalo, 123 N. Y. 173, 25 N. B. 274. A civil service statute which permits the selection of one from a list of three eligibles for ap- pointment to a city position gives sufficient selective power to the appointing board, but if It should confine the selection to a single person it would be invalid as inter- fering with the constitutional right of the local authorities to select their own officers. People v. Gaff- ney, 126 N. Y. Supp. 1027, affirm- ing 69 N. Y. Misc. 36, 125 N. Y. Supp. 762. In New Jersey it seems that the legislature may create a civil ser- vice commission to be appointed by the governor whose members need not be taken from the citi- zens or inhabitants of the mu- nloipa,lity. Booth v. McGuinness (Court of Errors and Appeals), 80 N. J. L., 75 Atl. 455. See § 189 post. 85. State ex rel. v. Denny, 118 Ind. 382, 393, 21 N. E. 274, 4 L. R. A. 65. § 177 Eegulation of Selection of Officees. 405 "threatens what we are bound to regard as a cardinal principle of our form of government."®* Under the Constitution of Michigan, which provided that municipal officers should be elected or appointed in such manner as the legislature might direct, an act passed by the legislature establishing a board of public works for the City of Detroit, and naming the members thereof in the act, was held unconstitutional, as not only violative of the right of local self-government, but as contrary to the above constitutional provision, when construed with other provisions of the Constitution, which assumed that such municipal officers were to be elected by the people or appointed by the authorities of the municipality.®'' "When the election ceases to be a municipal procedure, the whole foundation of municipal government drops out. And a municipality which is not managed by its own officers is not such a one as our Constitution recog- nizes."®* 86. "If It does not mean that the people have reserved the right of administering existing local of- fices hy officers of their own choos- ing, whether it he done directly, through an election, or indirectly, through the method of an appoint ment hy some of their local au- thorities, I am at a loss to under- stand its significance or in what consists its peculiar value." Per Gray, J., in Rathbone v. Wirth, 150 N. Y. 459, 34 L. R. A. 408, 412; People V. McKinney, 52 N. Y. 374; People V. Albertson, 55 N. Y. 50. 87. People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; People v. De- troit, 28 Mich. 228, 15 Am. Rep. 202. 88. Per Campbell, J., in ^tt'y Gen'l V. Detroit, 58 Mich. 213, 220, 55 Am. Rep. 675. Morse, C. J., in the same case observed (p. 226): "I fully agree in the views so ably expressed by Justice Campbell. The nearer the officers are to the people ovei whom they have control the more easily and readily are reached the evils that result from political cor- ruption, and the more speedy and certain the cure. The form of our state government presupposes that the people of each locality, each municipal district or political unit, are intelligent and virtuous enough to be fully capable of self- government." 406 MUNICIPAI, CoBPOBATIONS, § 178 § 178. Municipal officers distinguished from state offi- cers — state officers illustrated. There is a recognized distinction between state oiBcers, whose duties concern the state at large, or the general public, although exercised within defined territorial lim- its, and municipal officers, whose^ functions relate exclu- sively to the particular municipality.*^ Here' it is important to remember the distinction already stated between the state and municipal functions of the city.^" A state officer may be connected with some of the municipal functions, but he must derive his power from a state statute and execute them in obedience to a state law.®^ Although the jurisdiction of the officers is coextensive with the limits of the hiunicipal corporation, if they fill offices that are governmental rather than municipal, if they serve the public generally and not merely the local corporation or the inhabitants thereof, they are properly controlled by the state and are considered state officers.'^ 89. Britton v. Steber, 62 Mo. vlsory Opinion to Governor, 13 370. Fla. 687. See the able opinion of Camp- 92. Kansas. State ex rel. v. bell, C. J., in People v. Hurlbut, Hunter, 38 Kan. 578, 17 Pac. 177. 24 Mich. 44, 9 Am. Rep. 103; of Louisiana, State v. Flower, 49 Denlo, J., in People v. Draper, 15 La. Ann. 1199, 22 So. 623. N. Y. 532; People v. Lynch, 51 Maryland. Baltimore v. State, Cal. 15, 15 Am. Rep. 677; People 15 Md. 376, 74 Am. Dec. 572. V. Albertson, 55 N. Y. 50. Mussachusetts. Com. v. Plaisted, 90. §§ 173, 174 suvra. 148 Mass. 375, 19 N. E. 224, 2 L. 91. State ex rel. v. Valle, 41 R. A. 142, 12 Am. St. Rep. 666. Mo. 29, approved in Britton v, Michigan. Davock v. Moore, 105 Steber, 62 Mo. 1. c. 374. Mich. 120, 63 N. W. 424, 28 L. R. See Gamier v. St. Louis, 37 Mo. A. 783. 554; Hamilton v. County Couft, Missouri. St. Louis v. Sommers, 15 Mo. 3; St. Louis County v. 148 Mo. 398, 402; State ex rel. v. Griswold, 58 Mo. 175. Rombauer, 101 Mo. 499. The field of exercise of his juris- Ohio. State ex rel. v. Covlng- dlction, duties and powers is co- ton, 29 Ohio St. 102. extensive with the limits of the Pennsylvania. Norrlstown v. state, and extends to every part Fitzpatrick, 94 Pa. St. 121, 39 Am. of it. State ex rel. v. Hocker, 39 Rep. 771. Fla. 477, 487, 22 So. 721, citing Ad- §178 State and Municipal Officers. 407 Various illustrations of state officers in many relations appear in the notes.** 93. state officers defined and Illustrated. A state officer with- in the meaning of section 12 of Art. VI of the Constitution of Mis- souri, conferring upon the su- preme court jurisdiction of ap- peals and writs of error in cases where a state officer is a party, is one whose official duties and functions are coextensive with the boundaries of the state. Hence, It has been held that a member of the board of election commis- sioners of the city of St. Louis is not such state officer. State ex rel. V. Higgins, 144 Mo. 410. The same ruling has been made with reference to a sherltE. State ex rel. v. Dillon, 90 Mo. 229; State ex rel. v. Spencer, 91 Mo. 206. And the members of the board of health of the city of St. Louis. State ex rel. v. Board of Health, 90 Mo. 169. Clerk of circuit court is state officer. State ex rel. v. Rombauer, 101 Mo. 499. Constables are state, not munic- ipal officers. State ex rel. v. Mo- Kee, 69 Mo. 504. As to who are state and who are municipal officers in Cali- fornia, see Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87; Popper v. Broderick (Cal.), 123 Cal. 456, 56 I*ac. Rep. 53. Commissions. The metropol- itan sewerage commission created by statute In New York to con- sider means for protecting New York Bay from pollution is a state commission, and the charter provisions of New York City rel- ative to salaries of city officers do not apply to its employees. People ex rel. Metz, 61 N. Y. Misc. 363, 113 N. Y. Supp. 1007. A drainage commission has been held to be properly under state control, and the members state officers. State v. Flower, 49 La. Ann. 1199, 22 So. 623. Likewise a board of health. Love V. Atlanta, 95 Ga. 129, 22 S. E. 29, Bl Am. St. Rep. 64. Board of trustees of Brooklyn Bridge, which is owned by the cities of New York and Brooklyn, are public or state officers. Walsh V. N. Y. & B. B. Trustees, 96 N. Y 427. Under New York Act- of 1871, commissioners of public instruc- tion, although appointed by mayor, are state officers. Ham v. New York, 70 N. Y. 459. Commissioners of public chari- ties in New York City were for- merly state officers. Maxmilian v. New York, 62 N. Y. 160. Commissioners appointed to im- prove a canal In the City of Brook- lyn, held state offices. N. Y. & B. S. Mill & L. Co. V. Brooklyn, 71 N. Y. 580. Assesors and collectors. The fact that city assessors act in the capacity of county assessors does not prevent the city from paying them additional salary "to be paid to officers required by the charter, by-laws or ordinances." Fischer V. Wilkes-Barre et al., 6 Kulp (Pa.) 201. Assessors and collectors are not the agents of a town in its cor- 408 Municipal Coepoeations. §179 § 179. Same — municipal officers defined and illustrated. While it is true that the state grants the charter under which a city is organized and acts, yet those elected in obedience to that charter perform strictly municipal functions, and do not act in obedience to state laws in the manner enjoined upon state officers. Therefore the mayor was held not to be a state officer.®* Municipal officers are, therefore, those whose functions relate to purely municipal affairs and who act in obedi- ence to charter and ordinance provisions.®* porate capacity in the assessment and collection of taxes, though de- scribed as town officers in the stat- utes. Lorillard v. Monroe, 11 N. Y. 392, 62 Am. Dec. 120, followed In Maxmillian v. New York, 62 N. Y. 160, and Ham v. New York, 70 N. Y. 459. See People ex rel. v. Board of Canvassers, 129 N. Y. 360, 14 L. R. A. 1. c. 650. In Maine, assessors of taxes, though chosen by the city or town are held to be public officers. Their duties are imposed by law and clearly defined by statute. In the discharge of those duties, they are not subject to the direction or control of the municipality. The assessor's tenure of office is fixed by law. It cannot be changed by the city government or the elec- tors. No element of principal and agent exists in their relation to the municipality. It is not liable to an action for their omissions or mistakes, unless made so by stat- ute. Rockland v. Parnsworth, 93 Me. 178, 183. Judicial officers. Whether or not the terms "officers and em- ployes of the city and county government," within the meaning of a statute authorizing a board, to regulate salaries, include ju- dicial officers, was said to be doubtful in Quinn v. New York, 44 How. Pr. 266, affirmed 53 N. Y. 627. But it is held that clerks of the district courts of New York are not within the provisions of such a statute, which was declar- ed to apply only to officers con- nected with the political organi- zation of the city government, and not to judicial officers of the ju- dicial system of the state. Whit- more v. New York, 67 N. Y. 21, af- firming 5 Hun (N. Y.) 195. Same rule applies to clerks and deputy clerks of the courts of common pleas. Landon v. New York, 7 Jones & S. (N. Y.) 467. But the clerk of the grand juries of the courts of oyer and terminer and general sessions in the county of New York is an of- ficer of the county government, if an officer at all within the mean- ing of the act. Dolan v. New York, 6 Hun (N. Y.) 506. 94. Brltton v. Steber, 62 Mo. 1. c. 374. 95. State ex rel. v. Pol. Com'rs of K. C, 80 Mo. App. 206. §179 Municipal Opficees. 409 Numerous illustrations of municipal officers in the several ways in which the question has arisen, taken from the judicial decisions in the various jurisdictions are set forth in the notes.®^ 96. Municipal officers illustrat- ed. It is not easy to define city ot- ficeis in all cases. Among city of- ficers "are perhaps, city engineers and surveyors, officers having superintendence and control of streets, parks, water works, gas works, hospitals, sewers, ceme- teries, city inspectors and no doubt many others well known in large cities. Their duties and functions relate exclusively to the local affairs of the city and the) city alone is interested in their conduct and administration." Burch V. Hardwicke, 30 Gratt. (Va.) 24, 33. Where an officer is appointed by and may be removed by the city government and his duties re- late to city purposes, he is a city officer. People v. Kelly, 76 N. Y. 487; Walsh v. N. Y. & B. B. Tr., 96 N. Y. 437. Sheriff as local officer. State, Beach v. Finn, 4 Mo. App. 347. Deputy sheriff is not municipal officer within law forbidding him from being a school director. State ex rel. v. Bus, 135 Mo. 325, 33 L. R. A. 616, 36 S. W. 636. Street commissioners held "of- ficer of state," as to letting gov- ernor fill vacancy. Conover v. Devlin, 14 How. Pr. (N. Y.) 315. IVIayor, aldermen and council- men, within meaning of statute fixing criminal liability. People V. Wood, 4 Parker Cr. Rep. (N. Y.) 144. A member of a municipal assem- bly held to be "city officer," with- in the meaning of statute declar- ing it a misdemeanor if a city officer become interested in any contract with the city. State v. Kelly, 103 Mo. App. 711, 77 S. W. 996. President of council, elected by council held not to be, within charter provisions relating to re- moval. State V. Kiichli, 53 Minn. 147, 19 L. R. A. 779, 54 N. W. 1069. City comptroller Of Philadelphia is county officer. Taggart v. Com., 102 Pa. St. 354. City treasurer of Philadelphia is county officer. Com. v. Oellers, 140 Pa. St. 457, 21 Atl. 1085. City and county officers under charter of San Francisco. Kahn V. Sutro, 114 Cal. 316, 33 L. R. A. 620, 46 Pac. 87. Township, as local officers. Kinnie v. Waverly, 42 Iowa 486. Provisional appointment of local officer by governor. Mpre- land V. Millen, 126 Mich. 381, 85 N. W. 882. Clerk of state court, is not. State V. O'Connor, 54 N. J. L. 36, 22 Atl. 1091. Court Interpreter is not city of- ficer. Goettman v. New York, 6 Hun (N. Y.) 132. Civil officer of city district court, held not city officer. Peo- ple V. Court Gen. Sessions, 13 Hun (N. Y.) 395. Subpoena server, held city of- 410 Municipal Cobpoeations. §180 § 180. Illustrative cases of state and municipal officers. Officers who have the custody, care, management and control of pavements, sewers, water-works and public fleer IniNe-w York. Reilly v. New York, 32 N. Y. St. Rep. 861. City marshal is not a state of- ficer within the meaning of the provision forbidding the holding of two state offices at the same time. Attorney General v. Con- nors, 27 Pla. 329, 9 So. 7. City magistrates are city offi- cers within the meaning of a con- stitutional provision requiring that existing city officers shall be elected by the electors of the city or some division thereof, or ap- pointed by such authorities there- of as the legislature may desig- nate. Kelly V. Van Wyck, 71 N. Y. S. 814, 35 Misc. Rep. 210. A judge of a city or town court, held a city officer, under a pro- vision of the Kentucky Constitu- tion. Buckner v. Gordon, 81 Ky. 665. Judge of court having jurisdic- tion of violations of ordinances and certain criminal jurisdiction, held a municipal and not a state officer respecting appointment by governor and non-confirmation by senate. Law provided that governor should appoint the judge, and held no confirmation by senate necessary because a judge is a mu- nicipal officer, not state or county officer. State ex rel. v. Church- man, 3 Pennewlll (Del.), 162, 51 Atl. 49. City attorney of Milwaukee, held to be a city officer under the Constitution or Wisconsin. State V. Krez, 88 Wis. 135, 59 N. W. 593. Commissioners appointed by legislature to lay a pavement within a city, are not municipal officers. Greaton v. Griffin, 4 Abb. Pr. N. S. (N. Y.) 310. Members of boards of public safety and public works and secre- taries thereof are municipal offi- cers. Louisville V. Wilson, 99 Ky. 598, 36 S. W. 944. Members of improvement board created by statute, held state offi- cers and agents of property own- ers whose interests are affected by its function, and not officers of city. Fitzgerald v. Walker, 55 Ark. 148, 17 S. W. 702. Police commissioners, officers, etc. Police commissioners creat- ed by state act are not "corporate authorities" so as to authorize them to create a debt against a municipality. Wider v. East St. Louis, 55 111. 133; Perkins v. New Haven, 53 Conn. 214, 1 Atl. 825. Commissioners are not city offi- cers except as specified in act. Yaple V. Morgan, 2 Ohio Circ. Ct. Dec. 407. Board is arm of state for police purposes and as such has a dele- gated quasi sovereignty. Yaple v. Morgan, 2 Ohio Circ. Ct. Dec. 406, 25 Wkly. Law Bui. 336. Chief of police, held chief officer of city, requiring qualification of residence. State v. Hall, 111 N. C. 369, 16 S. E. 420. Police officers held "civil offi- cers," as to court jurisdiction. Burroughs v. Eastman, 93 Mich. 433, 53 N. W. 532. Policemen created by the state §180 State and Municipax, Offioebs. 411 buildings of the city perform duties purely local, and are therefore municipal officers.®'' But the supreme court law held to be within meaning of ordinance requiring "all city offi- cers" to he residents and qualified electors. Johnson v. State, 129 Ala. 672, 31 So. 493. Police municipal, as to removal. Bringgoid v. Spokane, 27 Wash. 202, 67 Pac. 612. Policemen held state and not municipal, relating to removal of city officers. Smith v. Bryan, 100 Va. 199, 40 S. E. 652, 4 Va. Sup. Ct. Rep. 121. Policeman is a city officer within a law requiring city officers "to be residents and voters of the city." Johnson v. State, 129 Ala. 672, 31 So. 493. Mayor, held not police officer, though ex officio head of police of city. People v. Gregg, 59 Hun 107, 13 N. Y. S. 114. Though councilman aids in ap- pointing and rendering policemen of the city force, he is not a police officer. People v. Hannon, 59 Hun 617, 13 N. Y. S. 117. A detective sergeant is a city officer within a provision of the Constitution requiring that all city officers whose election or ap- pointment Is not otherwise pro- vided for shall be elected by the electors of the city, or appointed by such authorities thereof as the legislature may designate. Peo- ple V. Partridge, 78 N. Y. S. 249, 38 Misc. Rep. 697. Police clerks, held to be county, not city officers, relating to charter provision requiring all officers to take oath. Cannlff v. New York, 4 E. D, Smith (N. Y.) 430. City engineers are municipal officers generally; sometimes they are provided for by statute. Gray v. Granger, 17 R. I. 201, 21 A.tl. 342. Notary public. State ex rel. v. Castell, 22 La. Ann. 15. Further, as to who are city offi- cers, see 14 L. R. A. 646. 97. People ex rel. v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. Board of public works of Dis- trict of Columbia, although sub- ject to the legislature, and also congress, are agents of that mu- nicipality. Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440. Commissioners for building aqueduct In New York City, held municipal officers. People v. Civil Service S. & B. Boards, 41 Hun (N. Y.) 287. Water commissioners appoint- ed under early New York act by state, held city officers. Bailey v. New York, 3 Hill. 538, affirmed 2 Denio 433. State may create a board of water commissioners for cities in the state. Hequembourg v. Dun- kirk, 49 Hun (N. Y.) 550, 2 N. Y. Supp. 447. Coyle V. Mclntire, 7 Houston (Del.) 44, holds that water com- missioners who are to manage the water-works of a city and to re- ceive and collect all water rents may be appointed by the legisla- ture. A water and sewerage works, held a municipal and not a state agency. State v. Kohnke, 109 La. 838, 33 So. 793. See § 220 post. 412 Municipal Cobpobations. § 180 of Colorado advised the senate of that state that a bill was valid which conferred upon the governor power to appoint the members of the board who were to have charge of the streets and sewers of Denver, and imposed upon such board duties and granted to it powers relating to the expenditure of city funds and the making of pub- lic improvements.^* So, in Ohio, an act, general in char- acter, which gave the governor power to appoint a board of public works in cities, was held constitutional.®* But the courts of Illinois and Michigan have held that drainage, levee and park officers, and officers for munici- pal public work, are not state, but municipal or corporate officers.^ So, in Indiana it has been held that an act hav- ing the effect of placing in the hands of a board of public works, the appointees of the legislature, the exclusive control of the streets, bridges, etc., in cities subject to its provisions, without the consent of those to be affected thereby, is void, on the ground that such act infringes upon the inherent right of the citizens to exercise the right of local self-government.^ For the same reason the supreme courts of Indiana and Nebraska declared an act void creating a board of metropolitan police and fire de- 98. In re Senate Bill, 12 Col. divisions, is a municipal and not 188, 21 Pac. Rep. 481. a state officer. Denver v. 99. State v. Smith, 44 Ohio St. Spencer, 34 Colo. 270, 82 Pac. 590. 348, 371, relying on State v. Gov- Park commissioners in New ington, 29 Ohio St. 102. York, held municipal officers. Peo- 1. Harward v. St. Clair L. & pie ex rel. v. Board, etc., 129 N. Y. D. Co., 51 111. 130; People v. Chi- 360, 29 N. B. 345, 14 L. R. A. 645: cago, 51 111. 17; People v. Hurl- People v. New York, 77 N. Y. 503. but, 24 Mich. 44, 9 Am. Rep. 103; Park commissioners having ex- People v. Detroit, 28 Mich. 228, elusive control of all public work, 15 Am. Rep. 202. streets, etc., and who are ap- See People v. Batchellor, 53 N. pointed and removed by the Y. 128, 13 Am. Rep. 480; Attorney mayor are city officers. Ehrgott General v. Lathrop, 24 Mich. 235. v. New York, 96 N. Y. 264'. A park commissioner, whose See § 221 post. duties, imposed by charter, are 2. State v. Denny, 118 Ind. 382, exclusively for the city's benefit, 24 Am. and Eng. Corp. Cas. 165, and not for the benefit of the 21 N. B. 252, 4 L. R. A. 79. state or any of its political sub- §180 State and Municipal Offioeks. 413 partment, the members of which were appointed by the legislature.* However, subsequently, the latter court changed its views on this point and sustained a like leg- islative act, and held that it is competent for the legis- lature by statute to confer upon the governor the power to appoint members of the board of fire and police com- missioners of cities of the state of the metropolitan class.* But the supreme court of California has held that offi- cers of police and fire departments are municipal officers.'* However, in Ohio an act creating a board of health and a board of police commissioners, the members of which were appointed by the governor, was held valid.® In California it has been declared that, whether officep are state or mimicipal is determined by the source of their authority, and whether the functions they perform relate to the state at large or to purely municipal affairs.'' 3. Evansville v. State ex rel., 118 Ind. 426, 24 Am. and Bng. Corp. Cas. 203, 21 N. B. 267, 4 L. R. A. 93; State v. Moores, 55 Neb. 480, 76 N. -f'. 175, 41 L. R. A. 624; overruling State v. Seavy, 22 Neb. 454, 35 N. W. 228. 4. State may appoint fire and police commissioners. Here It was said: "So far as the indi- vidual members of society are concerned, in tbe nature of things, there can be no such thing as an Inherent right of local self- government. * * * So far as a city Is concerned, considered In the character of an artificial being, it is a creature of the leg- islature. It can have no rights save those bestowed upon it by its creator. As it might have been created lacking some right bestowed upon it, it is in no po- sition to complain should the power that bestowed such right see fit to take it away. The power to create a municipal cor- poration, which is vested in the legislature, implies the power to create It with such limitations as the legislature may see fit to impose, and to Impose such limi- ' tations at any stage of its ex- istence." Redell v. Moores, 63 Neb. 219-, 88 N. W. 243, 55 L. R. A. 740, overruling State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624. See State v. Broatch, 68 Neb. 687, 94 N. W. 1016. 5. Popper V. Broderick, 123 Cal. 456, 56 Pac. 53. Police oflficers are state officers. § 181 post. 6. State V. Covington, 29 Ohio St. 102. See Davock v. Moore, 105 Mich. 120, 28 L. R. A. 783, 63 N. W. 424; Taylor v. Phila. Board of Health, 31 Pa. St. 73, 72 Am. Dec. 724. 7. Kahn v. Sutro, 114 Cal. 316, 33 L. R. A. 620, 46 Pac. 87. 414 MtJNICIPAIi COEPOBATIONS. §181 In that state it is held that a police iustice^* although a judicial officer, is also a municipal officer.* § 181. Police recognized as agency of state. Since a leading decision in New York in 1859, the proposition that the police is an agency of the state and not of the municipal corporation, and that the officers thereof are state and not local officers, has been affirmed in many jurisdictions.® 8. People V. Henry, 62 Cal. 557. 9. Connecticut. Perkins v. New Haven, 53 Conn. 214, 1 Atl. 825. Georgia. Amerlcus v. Perry, 114 Ga. 871, 40 S. E. 1004, 57 L. R. A. 230. Indiana. State ex rel. v. Kol- eem, 130 Ind. 434, 436, 29 N. B. 595, 14 L.. R. A. 566; Indianapolis V. Huegele, 115 Ind. 581; State v. Fox, 158 Ind. 126, 63 N. E. 19; Arnett v. State, 168 Ind. 180, 182, 80 N. E. 153; EvansvlUe v. State ex rel., 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93, 24 Am. & Eng. Corp. Cas. 203; State ex rel. v. Denny, 118 Ind. 382, 21 N. E. 252, 24 Am. & Eng. Corp. Cas. 165, 4 L.. R. A. 79. Illinois. Culver v. Streator, 130 111. 238, 22 N. E. 810; People ex rel. V. Wright, 70 111. 388. Kansas. State v. Hunter, 38 Kan. 578. Kentucky. Paducah, Petitioner ex parte, 31 Ky. L. Rep. 170, 101 S. 'W%. 898; Commissioners v. Louisville, 3 Bush. (Ky.) 597; Speed V. Crawford, 3 Met. (Ky.) 207. Louisiana. Diamond v. Cain, 21 La. Ann. 309. Cobb V. Portland, 55 Maine 381. Michigan. People v. Mabaney, 13 Mich. 481; Metropolitan v. Police Board of Wayne Co., 68 Mich. 576. Massachusetts. Commonwealth V. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. Missouri. State ex rel. v. St. Louis County, 34 Mo. 546, 571; State ex rel. v. Stoble, 194 Mo. 14, 55, 92 S. W. 191; State ex rel. v. Mason, 153 Mo. 23, 43, 54 S. W. 524; Worley v. Columbia, 88 Mo. 106. NeJyraska. State ex rel. v. Nol- an, 71 Neb. 136, 98 N. W. 657; Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431; State ex rel. v. Broatch, 68 Neb. 687, 94 N. W. 1016; State v. Seavey, 22 Neb. 454, 35 N. W. 228. New Hampshire. Gooch v. Exe- ter, 70 N. H. 413, 415. New York. People v. Draper, 15 N. Y. 532; People v. Shepard, 36 N. Y. 285. Ohio. State v. Covington, 29 Ohio St. 102. Pennsylvania. Norristown v. Fitzpatrlck, 94 Pa. St. 121. §181 Police is State Agency. 415 State laws creating a police system for the cities rest, according to the judicial decisions, upon the well settled doctrine that the protection of life, liberty and property and the preservation of the public peace and order in every part, division and sub-division of the state," is a governmental obligation which belongs to the state and not to the local government unless such duty has been committed to local communities by the central authority. The state may take from the municipal corporation its charter power respecting the control of the police, and order the transfer of the property of the department to the new department created by the state, since such charter leaves the property still vested in the public.^" Rhode Island. Horton v. New- port, 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512. Teasos. Rusher v. Dallas, 83 Tex. 151, 18 S. W. 333. Virginia. Burch v. Hardwicke, 30 Gratt. (Va.) 24. 10. State ex rel. v. St. Louis County, 34 Mo. 546, 571; Baltimore V. Board of Police, 15 Md. 376; State V. Covington, 29 Ohio St. 102; State v. Seavy, 22 Neb. 454, 35 N. W. 228; People v. Mahaney, 13 Mich. 481; State v. Hunter, 38 Kan. 578. But a contrary decision has been reached in Indiana. Evans- ville V. State ex rel., 118 Ind. 426, 24 Am. & Eng. Corp. Cas. 203, 21 N. B. 267, 4 L. R. A. 93; State ex rel. V. Denny, 118 Ind. 382, 24 Am. and Eng. Corp. Cas. 165, 21 N. E. 252, 4 L. R. A. 79. See § 225 post. Police control may be taken from city. The Constitution of Georgia contained the following clauses in the bill of rights: "All government, of right, originates with the people, is founded upon their will only and is instituted solely for the good of the whole. Public officers are the servants and trustees of the people and at all times amenable to them." Givil Code, § 5678. "The people of this state have the inherent, sole and exclusive right of regulating their internal government and the police there- of and of altering and abolishing their Constitution whenever it may be necessary ^or their safety and happiness." Civil Code, § 5734. "The enumeration of rights herein contained shall not be con- Btrued to deny to the people any inherent rights which they may have hitherto enjoyed." Civil Code, sec. 5735. The legislature of this state in 1889 provided for a board of police commissioners for the City of Americus, of five members, with authority to fill vacancies in the board and choose their successors in office and who should have ex- clusive control of the selection and management of the police 416 Municipal Cobpobations. §181 But the maintenance of a police force is a proper power which may be constitutionally committed to a municipal corporation, and, • in harmony with our gov- ernmental system, should be so committed.^ ^ In theory, policemen are state officers, as we have seen, but in fact their chief function is to aid in enforcing the local police regulations, mainly of municipal origin, and they are paid for such service not by the state, but out of the city treasury, from the contributions of the local tax-payers, for strictly "mimicipal purposes."^'' force of the city. Upon the question whether the particular section of the city charter con- ferring such power was invalid because the legislature had no authority to appoint municipal of- ficers and the exercise of such right by it deprived the citizens of Amerlcus of local self-govera- ment, it was held that, the prbf priety of creating municipal cor- porations, the power and manner of the exercise of power conferred upon them is with few limita- tions and restrictions left by the Constitution to the wisdom of the legislature. That the, number, mode of selection and authority of municipal officers is not restricted by the Constitution or the above sections thereof and if the legislature may exercise the power to appoint an officer by providing the manner in which 6'jch officer shall be chosen, there is ^10 good reason why it can not exercise this power directly by naming the officer in the act creating the office, and this car- ries with it the .power to pro- vide how his successor shall be chosen. Americus v. Perry, Hi Ga. 871, 878, 882, 40 S. E. 1004, 57 L. R. A. 230. When police officers are local and municipal officers. Speed v. Crawford, 3 Met. (Ky.) 207; People V. Albertson, 55 N. Y. 50, questioning and distinguishing People V. Draper, 15 N. Y. 532, and People v. Shepard, 36 N. Y. 285 Is doubted. Carrington v. St. Louis, 89 Mo. 208, 213-215, distinguishing Alt- vater v. Baltimore, 31 Md. 462. See Rehburg v. Mayor, etc., 91 N. Y. 137. 11. Durach's Appeal, 62 Pa. St. 491, 493. 12. Municipal legislation stat- utes authorizing ordinances "not Inconsistent with the laws of the state," held to forbid legislation not inconsistent with the statu- tory law applicable to the munici- pal corporation, and not to for- bid ordinances passed in the exercise of municipal police pow- ers changing a common law rule of personal liability prevailing in the state. Cargill v. Duffy, 123 Fed. 721. The legislature may control local administration relating to police subjects within the domain of the general legislative powers of the state. Rule applied to right of legislature to change the §182 Control of Local OrricBES. 417 § 182. Legislative control of officers and their functions illustrated. Where the office is a state office, the legislature has unlimited control over it, in the absence of cohstitutional limitation, and whenever the legislature has the right to assume such control it has likewise the right to compel the city to provide for defraying the expenses of such office." organization of a special board created to provide sewerage and ■water. State ex rel. v. Kohnke, 109 La. 838, 33 So. 793. The metropolitan police of Lon- don have charge of an area of about 688 square miles. The force Is under control of the central government through the Home Secretary who appoints the com- missioner, the executive head of the force. As stated by an English author, although the lo- cal authorities of the police area bear practically the whole of the cost (apart from the grant wliich the English government makes to all police forces, and a small ad- ditional contribution for the ser- vices of the force as a "state" police) they have no voice in its management. Percy Ashley, Lo- cal and Central Government, ch. 1, § 4, p. 49. In continental Europe all capi- tals have a special police organi- zation dependent solely upon the central government due alone to political reasons. But In England these reasons may be assigned: (1) the absence of adequate local authority when the Metropolitan Police were created In 1829 aa advocated by Robert Peel; (2) the great extent of the police area 1 McQ.— 27 — 688 square miles; (3) the func- tions as a central police, e. g., extradition, supervision of foreign criminals or suspects, protection of governmental buildings, and governmental interests, etc. Early watchmen in London. "There was an act of common council which provided that more than a thousand watchmen should be constantly on the alert in the city, from sunset to sunrise, and that every Inhabitant should take his turn of duty. But this act was negligently executed. Few of those who were summoned left their houses; and those few gen- erally found it more agreeable to tipple in ale houses than to pace the streets." Macaulay's History of England, vol. 1, ch. 3. 13. State ex rel. v. Owsley, 122 Mo. 68, 26 S. W. 659; State ex rel. V. Board of Education, 141 Mo. 45; State ex rel. v. St. Louis County Court, 34 Mo. 546; Sangamon County v. Springfield, 63 111. 66; Durach's Appeal, 62 Pa. St. 491; State ex rel. v. Mason, 153 Mo. 23, 54 S. W. 524; Horton v. Newport, 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512. State officers. "Certain public officers, such as police and mem- bers of council, and all who by 418 Municipal Coepobations. § 182 On the other hand, in the absence of express constitu- tional mandate or authorization, it has been held gen- erally (with some exceptions, however) that any attempt of the legislature to regulate the duties or salaries of municipal officers — officers whose duties and powers are of a purely local or municipal character as has been de- scribed — is forbidden, in view of the fundamental prin- ciples of our governmental system and by the consti- tutional provisions herein considered, guaranteeing the right of local administration.^* Thus, under the Ohio Constitution, which provides that "the general assembly shall pass no special act con- ferring corporate powers," it has been held that the legislature may not pass a special act giving a city coun- cil power to appoint a board of control, to which was to be given the power to appoint new officers to be con- firmed by the council and to supervise the public work of the city.^^ And where a state Constitution forbids the legislature from passing any local or special laws regulating the affairs of counties, cities and towns, the legislature has no authority to pass an act regulating the salaries of officers and imposing new duties upon county auditors in counties of a designated population.^^ So, an act, special in character, giving the mayor and alder- men power to appoint a city physician, was held uncon- stitutional under a constitutional provision forbidding the legislature from regulating by special and local leg- the nature of their positions serve 14. Metz v. Maddox, 189 N. Y. the whole state in bo far as their 460, 473, 82 N. E. 507. jurisdictions extend in dealing See also. People v. Coggey, 132 with matters with which the state N. Y. App. Div. 268, 117 N. Y. as a whole is concerned, and Supp. 65. which might have been required 15. State v. Pugh, 43 Ohio St. of any other body of magistrates 98, 110. with as much legal propriety, are 16. McCarthy v. Commonwealth, confessedly subject to direct con- 110 Pa. St. 243, 246, 247. trol by the state through its legis- But in Missouri the general as- lature." Combs v. Bonnell, 33 Ky. sembly shall regulate the fees of L. Rep. 219, 109 S. W. 898. county officers. Const. IX, | 12. § 182 Control of Local Officeks. 419 islation the internal affairs of cities." Likewise, a leg- islative act is unconstitutional which seeks to divest certain local officers, recognized as such and provided for by the Constitution, of the functions of their offices, and to confer the same upon a board, appointed by a power removed from that locality, and not responsible to local authority." A legislative act creating commissioners, appointed by state authority, to improve a highway in a township and levy the expenses on adjacent lands and afterwards keep the road in repair by tolls, and make up the deficiency by taxation is void, because ' ' the result is that a purely local work, public in character, is taken charge of and conducted at local expense, and paid for by local bonds and taxes, without giving any of the local authorities any function to perform, except that of yielding implicit obedience to the orders and requisitions of a commission, in whose appointment and government the town and its people have no part whatever. This is a very clear usurpation, and, so far as it goes, an absolute destruction of the local privileges. There is no principle which can justify such an interference, which would not equally jus- tify the asstmaption by the state of immediate control by its agencies of every highway in the commonwealth, and the imposition of local taxes for local purposes to be levied and expended by persons neither residents in, nor in any way connected with, or responsible to, the towns on which they levy their charges."^* 17. state V. Simon, 53 N. J. L. of local concerns, by and through 550, 22 Atl. 120, distinguishing the medium of olHcers of their Bumsted v. Govern, 47 N. J. L. own selection, that is sought to 368. be protected. Strip the officers of 18. Davles v. Saginaw County a municipality of their functions. Board, 89 Mich. 295, where it is and you rob the municipality of said: "It is just as essential to Its vitality." local self-government that the 19. Per Campbell, J., In People functions of elective officers be ex rel. v. Township Board of preserved to such officers as that Springwells, 25 Mich. 153, 167, ap- the right of election be protected; proved in 89 Mich. 299, 300. Indeed, It is the local management 420 Municipal tJoBPO'KATiONS. § 182 The constitutions of New York and Wisconsin con- 'tjerning officers provide that all city, town and village officers, whose election or appointment is not provided for by the Constitution shall be elected by the electors of such cities, or of some division thereof, or appointed by such authorities thereof, as the legislature shall des- ignate for that purpose. All other officers whose election or appointment is not provided for by the Constitution and all officers whose offices may hereafter be created by law shall be elected by the people or appointed as the legislature may direct.^" The courts of both states hold that the intent of this constitutional provision is to preserve the principle of home rule by continuing the right of these political di- visions to select their own officers, to exercise the general functions of the office. That unless the office or officer is mentioned eo nomine in the Constitution the name may be changed or the office abolished, provided the functions, if retained at all, continue in some officer chosen by the locality. The legislature has power to regulate, increase or diminish 'the duties of the local officer, subject, how- ever, to the limitation that no essential or exclusive function belonging to the office can be transferred to an officer having central authority. The integrity of the local office is protected with its original and inherent functions.^^ In another case in which was involved the validity of a statute providing for the appointment of a commis- sioner of jurors by the justices of the appellate division of the New York court, it was held that unless the Con- 20. N. Y. Const., art. 10, § 2; -wliich the assessments were made Wisconsin Const., art. 13, § 9. violates that part of the ConstltU" 21. People ex rei. v. Tax tion which provides for home rule Comrs., 174 N. Y. 417, 431, 435. In certain political divisions of the An appeal from an order reduo- state. State v. Meyers, 52 Wis. ing and confirming as reduced an 623; Jones v. Kolb, 56 Wis. 263: assessment upon the special fran- Cc'e v. Blaclj River Falls, 57 Wis. chises of relators -wherein the 110, 14 N. W. 906; State y. Alder, question presented to the court S7 Wis. 554. was whether the statute under § 183 Control of Local Ofpicees. 421 stitution contains a provision with reference to the elec- tion or appointment of an officer of a city, it must be filled *at an election by the electors of the city or appointed by authority thereof, unless it is an office created after the adoption of the Constitution in which event it must be filled by election or appointment in such manner ' ' as the legislature may direct." The legislature may also abol- ish an office unless it is a constitutional office and if some of its functions are necessary they may be devolved on other city officers.^^ In New York the legislature may, in its discretion, provide for the election or appointment, in any manner it may determine, of all officers, local or general, whose offices have been created by law, after the adoption of the Constitution, and also of all other municipal and county officers whose offices were then in existence, but the mode of election or appointment to fill such offices was not provided for in the Constitution.^^ In that state statutory authority cannot be conferred upon the governor of the state to remove at pleasure an officer chosen by the electors of a locality or appointed by local authorities.^* § 183. Same. In the absence of constitutional restrictions courts have held that the legislature of the state may alter or abolish the courts of a municipal corporation,^^ and some have held that the state may abolish a local office,^* 22. Allison v. Welde, 172 N. T. 26. May abolish office of cot- 421. ton weigher filled by appointment The legislature when exercising by mayor and aldermen of a city. Its power must either provide for Kendall v. Canton, 53 Miss. 526. an election or appointment in the May legislate municipal officers same city. People v. Dooley, 171 out of office. Gilbert v. Paducah, N. Y. 74, 81. 24 Ky. Law Rep. 1998, 72 S. W. 23. People ex rel. v. Draper, 15 816. N. T. 532, 537. "Municipal charters are subject 24. People v. Coler, 173 N. Y. to repeal or amendment, at the 103, 116. pleasure of the legislative pover 25. Boyd y. Chambers, 78 Ky. granting them. * * * The J40, fibsolute and unconditional repeal 422 Municipaij Coepobations. §183 prescribe the qualifications of municipal officers,*'' and fix tlie salaries of local officers.** Courts have also declared that the state may create local offices and officers, and to some extent control such offices and officers. The cases in the notes indicate the limitations in particular instances and the various judi- cial views on this subject in the several relations in which the question has arisen.*' of a municipal charter abolishes all offices under it. * • * There Is no such thing as a vested right, in the strict sense of that term, in a municipal office, that places it above legislative control." Crook V. People, 106 111. 237, 244. 27. State ex rel. v. Matthews, 153 Ala. 646, 45 So. 307; State ex rel. V. Von Baumbach, 12 Wis. 310. 28. Speed v. Detroit, 100 Mich. 92, 58 N. W. 638; People v. Devlin, 33 N. Y. 269, 88 Am. Dec. 377. 29. Control of local officers. "Mere employees, firemen, street cleaners, hostlers, janitors, and the like * * * are not the subject of legislative control." Combs v. Bonnell, 33 Ky. L. Rep. 219, 109 S. W. 898. The Constitution of California provides that no state officer shall be contained or created in any county, city, town, or ■ other municipality, for the Inspection, measurement, or graduation of any merchandise, manufacture or commodity; but such county, city, town or other municipality may, when authorized by general law, appoint such officers. Const. Cal. ]880, art. XI, i 14. Local public works. The legis- lature cannot appoint members of the board of public works of the City of Detroit. People v. Hurl- but, 24 Mich. 44, 9 Am. Rep. 103. Nor park commissioners for said city. People v. Lothrop, 24 Mich. 235. Waterworks. The legislature cannot authorize the appointment of trustees for the waterworks of cities of the first class by the dis- trict court, because such act di- vests the cities of the manage- ment of their property. State ex rel. V. Barker, 116 la. 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 322. § 220 post. Appointment or selection of local officers. Legislative act may provide for the appointment of harbor masters in city. Benedict V. Vanderbilt, 25 How. Pr. (N. Y.) 209. Where the charter provides for the appointment of park com- missioners by a judge, a subse- quent act to which the people of the municipality do not assent transferring the power to the governor, is unconstitutional. Cornell v. People, 107 111. 372. Where the State Constitution confers the power upon the local authorities to make the selection of officers a legislative act pro- viding for a selection in a dif- ferent manner is unconstitution- al. People v. Acton, 48 Barb. (N §184 Change of Cohpokate Limits. § 184. Legislature may change corporate boundaries. As stated elsewhere, in this work, in the absence of constitutional restrictions, the state through its legisla- Y.) 524; People v. Blake, 49 Barb. (N. Y.) 9; People v. Raymond, 37 N. Y. 428, 35 How. Pr. 173; Cole V. Black River Falls, 57 Wis. 110, 14 N. W. 906. Legislature may provide for fill- ing vacancies in municipal offices temporarily. Todd v. Johnson, S9 Ky. 548, 36 S. W. 987, 33 L. R. A. 399. Special Commission. To control money and local functions of city; act creating police relief fund, held valid. Pennie v. Reis, 80 Gal. 266, 22 Pac. 176. Act authorizing certain named person to audit outstanding claims against city, valid. Person not officers. Syracuse v. Hubbard, 72 N. Y. S. 802, 64 App. Div. 587. Legislature may appoint officers within a city for specified pur- pose, as for laying out street, etc. and acts of officers are acts of city. Daley v. St. Paul, 7 Minn. 390. See I 189 post. Civil service commission. Act creating commission, making mayor, treasurer, comptroller and two citizens, to be appointed by the mayor by consent of council, members, is valid. Hope v. New Orleans, 106 La. 345, 30 So. 842. § 189 post. Preferences. The legislature may by statute give preference in selection of officers to honorably discharged soldiers and sailors. In re Sullivan, 55 Hun (N. Y,) 285, 8 N. Y. S. 401, State may. control local offices. Unless forbidden, legislature may change officers. Churchill v. Walker, 68 Ga. 681. Where the whole power over municipal corporations is in the legislature it has full control of the officers of such corporation, and may reserve such power to Itself or delegate the same. Americus v. Perry, 114 Ga. 871, 40 S. E. 1004, 57 L. R. A. 230; Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 74, 93 Am. St. Rep. 431. There being nothing in the Con- stitution of Georgia which guaran- tees to the people within the limits of a municipal corpo- ration the absolute right of local self-government, the inhabitants thereof may participate in the choice of officers to administer the affairs of the local government only in so far as they are given the right by the General Assembly, which matter is discretionary with such body. Americus v. Perry, 114 Ga. 871, 40 S. E. 1004, 57 L. R. A. 230. Conferring power upon county commissioners to exercise the powers and privileges of mayor and aldermen of a city named, held constitutional in Georgia. Churchill v. Walker, 68 Ga. 681. May create officers to carry on local public improvements. Astor V. New York, 62 N. Y. 567. The legislature has the pov/er to control or abolish a board of 424 MunriCiPAL C0EP0EATI0]SrS. §184 ture has unlimited power to establish and change munici- pal boundaries, and to annex or detach territory.*" 30. i 265 post. education chartered to hold the property of the public schools and manage the public schools of a city. Edmonson v. Board of Education, 108 Tenn. 557, 69 S. W. 274. An act of incorporation of a city may constitute certain county of- ficers ex officio city officers, with- out violating the Constitution, as such organic law neither express- ly nor impliedly recognizes the right of local self-government.. State V. Swift, 11 Nev. 128. Legislature may provide for the appointment of officers of aque- duct department. People v. Stev- ens, 51 How. Pr. (N. Y.) 103. Legislative power to fix and ex- tend term of municipal ofllcers. Stow. V. Grand Rapids, 79 Mich. 595, 44 N. W. 1047; New Bruns- wick V. Fitzgerald, 48 N. J. L. 457, 8 Atl. 729; People v. Hayt, 7 Hun (N. Y.) 39; Long v. New York, 81 N. Y. 425; State v. Krez, 88 Wis. 135, 59 N. W. 593. While the legislature cannot abolish a constitutional office it may abolish mere statutory of- fices. Coulter V. Murray, 4 Daly (N. Y.) 506; State v. Von Baum- bach, 12 Wis. 310; Kendall v. Canton, 53 Miss. 526. Unless the Constitution forbids, (he legislature may transfer the duties of municipal officers to others. In re Lester, 21 Hun (N. Y.) 130. Unless the Constitution forbids, the legislature may provide for the composition of the local legis- lative body. Demarest v. New York, 74 N. Y. 161, affirming 11 Hun 19. Park commission. Subject to the constitutional restriction against local or special legisla- tion, held that the legislature may modify, abolish or transfer at will the powers and duties of a city's park commissioners. Ward v. Field Museum, 241 111. 496, 89 N. E. 731. See § 221 post. Fire department. The legis- lature has no power to place the control of a municipal fire depart- ment under a board appointed by the governor. Such an act violates the right of local self- government. State ex rel. v. Fox, 158 Ind. 126, 63 N. E. 19. An act of the legislature fixing the compensation of the officers and members of a municipal fire department was declared void in Kentucky, as violative of the city's right to control its local affairs. Employing or paying a fire department in a city is not a governmental function which should be exercised by the legis- lature. The legislature cannot fix the salaries of firemen any more than it can fix the pay of street sweepers, the drivers of ash carts, or fix the price per square yard which the city shall pay for' an improvement of the public ways. Lexington v. Thomp- son, 113 Ky. 540, 24. Ky. L. Rep. 384, 68 S. W. 477, 57 L. R. A. 775, 101 Am. St. Rep. 361. §185 CONSTITUTIONAl, PeOVISIONS. 425 l. CONSTITUTIONAIi PBOVISIOKS. § 185. General constitutional limitations of legislative power relating to municipal corporation. State constitutions usually deny, in express terms, power to the legislature to authorize any municipal cor- poration to lend its credit, or to grant public money or The matter of regulating such Internal local affairs as partake of the nature of the employment of iiremen and other mere city employees Inheres in a munici- pal corporation as an incident of its character as a private corpora^ tion, and is beyond the power of the legislature to control with- out reference to the wishes oi participation of the local govern- ment. Still It is competent for the state In creating such co:-- poration to provide by what body of the local magistracy that func- tion is to be exercised. Combs V. Bonnell, Ky., 33 Ky. L. Rep. 219, 109 S. W. 898. Firemen of cities and villages not being civil and public officers within the meaning of the Con- stitution, may be provided for by the legislature. People v. Pinckney, 32 N. Y. 377. ~ An act which attempted to es- tablish a bureau of public safety for Bay City, Mich., the members to be appointed by the governor, and giving to such bureau con- trol and management of the police and fire departments of said city, was declared, as ';o the fire department, an unconstitu- tional Interfr'-pnre with the city's right of local self government, and that feature being an essen- tial part of the act, the entire act was unconstitutional. Davidson V. Hine, 151 Mich. 294, 115 N. W. 246, 14 Det. Leg. N. 957. Unlimited legislative control conferred by constitution. Sec. 139, Constitution of Mississippi provides as follows: "The legisla- ture may empower the governor to remove and appoint officers in any county or counties or muni- cipal corporations under such regulations as may be prescribed by law." In a proceeding by the I e venue agent, a state officer of that state to compel the taxation by the city of Vicksburg of cer- tain personal property of one of Its citizens for municipal taxes. It was held that under the above provisions of its Constitution the legislature might empower the governor to appoint or remove any of the municipal officers and fur- ther that It is not a violation of the doctrine of local self-govern- ment for the state to appoint Its own fiscal agents to supervise the action of municipal taxing officer^ and that on no ground are citizens of a municipality guaranteed the ' right of local self-government and their right to participate in the Eelertion of their own local of- flceis is a matter within the judgment and discretion of the leffislature. Adams v. Kuyken* ciall, 83 Miss. 571, 593. 426 MuNICIPAli COBPOEATIONS. §185 thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.^ ^ Such -provision is intended to prevent the local cor- poration from becoming jointly interested as a stock- holder with any individual, association or company and from appropriating money for this purpose, or loaning its credit to any individual or corporation, but it will not prevent the city from establishing gas works of its own to supply its citizens with light.*^ And it was decided in Ohio that such constitutional provision does not prevent the legislature from authorizing a city to construct a railroad where it appears that such a road is material to the development of the local community, 31. Arkansas. Const., art. XII, § 5. Illinois. Const., § 2 of Separate Sections; Washington Home v. Chicago, 157 HI. 414, 41 N. B. 893, 29 'L. R. a. 798. loipa. Const., art. VIII, § 4. Kentucky. Const., § 179. Maryland. Art. Ill, § 54; Bal- timore, etc. R. Co. V. Pum- phrey, 74 Md. 86; Baltimore, etc. R. Co. v. Spring, 80 Md. 510. Missouri. Const. 1875, art. IV, § 4. Act of 1895, relating to retir- ing policemen after twenty years service is void under this section. State ex rel. v. Ziegenhein, 144 Mo. 283. Nebraska. Const. 1875, art. XII, S 1. New York. Const., art. VIII, § 10. Ohio. Const., art. VIII, § 6. Oklahoma. Const., art. X, § 17. Oregon. Const., art. XI, § 9; Cook V. Portland, 20 Ore. 584, 27 Pac. 263; Municipal S. Co. v. Baker County, 39 Ore. 396, 65 Pac. 369. Pennsylvania. Const., art. IX, § 7; Indiana County v. Agricul- tural Socy., 85 Pa. St. 357. Texas. Const, art. Ill, sec. 52; Weaver v. Scurry County, Tex. Civ. App. (1894), 28 S. W. 836. Washington. Const., art. VIII, 8 151. A municipal corporation cannot assist in the building of a court house for the county to be located within Its limits. Russell v. Tate, b2 Ark. 541, 13 S. W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193. Where the Constitution prohib- its the legislature from auditing accounts, it cannot determine y/hat debts the municipality shall pay and compel their payment. Fitch V. Board of Auditors, 133 Mich. 178, 94 N. W. 952, 10 Det Leg. N. 160. 32. Wheeler v. Philadelphia, 77 Pa. St 338, 355. ^ 185 Constitutional Peovisions. 427 and empowering the municipal authorities to provide means therefor, by taxation of the inhabitants.^* Other constitutional limitations deny power to the legislature to grant, or to authorize any municipal au- thority to grant extra compensation, fee or allowance, to a public officer, agent, servant or contractor, after service has been rendered or a contract has been entered into and performed in whole or in part, nor pay nor authorize the payment of any claim hereafter created against any municipality, under any agreement or contract made without express authority of law ; ' ' and all such unauthor- ized agreement shall be null and void." ** Nor shall the legislature have power "to release or extinguish, or authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obliga- tion of any corporation or individual in this state, or to any county, or other municipal corporation therein."^" Nor shall the legislature have power to impose taxes upon counties, cities or other municipal corporations 33. "The mischief which this prises of whatever kind, if we section interdicts Is a business • hold that these municipal bodies partnership between a municipal _ cannot do on their own account or subordinate division of a what they are forbidden to do on state, and Individuals or private the joint account of themselves corporations or associations. It and private partners, it follows forbids the union of public and that they are powerless to maka private capital or credit in any any Improvement, however neces- enterprise whatever. In no pro- sary, with their own means, and ject, originated by individuals, on their own sole account. We whether associated or otherwise, may be very sure that a purpose with a view to gain, are the mu- so unreasonable was never enter nlclpal bodies named permitted to talned by the powers of the Con- participate in such manner as to stitution." Walker v. Cincinnati, Incur pecuniary expense or liabill- 21 Ohio St. 14, 54, 55, above Ian ty. They may neither become giiage approved In Wheeler v, stockholders nor furnish money Philadelphia, 77 Pa. St. 338, 355 or credit for the benefit of the par- 356. ties Interested therein. • • • 34. Const. Mo. 1875, art. IV. S As this alliance between public 48. and private Interest is clearly 35. Const. Mo. 1875, art. IV, prohibited In respect to all enter- g 51. 428 Municipal Coepoeations. § 186 or upon the inhabitants or property thereof for county, city, town or other municipal purposes, but such power is to be vested in the corporate authorities.^* Nor shall the legislature have power to pass a law "granting the right to construct and operate a street railroad within any city, town, village, or on any public* highway, without first acquiring the consent of the local authorities having control of the Street or highway pro- posed to be occupied by such street railroad; and the franchise so granted shall not be transferred without similar assent first obtained. ' ' ^'' The Constitution of Alabama forbids the legislature from passing an act to authorize any municipal, corpora- tion to enact any laws inconsistent with the general laws of the state.** § 186. Constitutional limitations of powers of counties and municipal corporations. The judicial powers, being state powers, of course, are vested in the state, and are regulated by the legisla- ture.*® 36. Const. Mo. 1875, art. X there are excepted parts, the law §§1, 10. is private, not general. Holt v. An act of the legislature pro- Mayor, 111 Ala. 369; Anniston v. Tiding for the payment by thef S. Ry. Co., 112 Ala. 557. city of the expenses of registra- Constitutional provision is not tion and election of the office of Intended to prevent the delegation recorder of voters is not uncon- to counties of gwosi-legislative stitutional as authorizing the levy powers. Askew v. Hale Co., 54 of a municipal local tax for other Ala. 639; Stanfill v. 'Dallas Co., than local purposes. State ex rel. 80 Ala. 287; Dunn v. Wilcox Co., V. Owsley, 122 Mo. 68, 26 S. W. 85 Ala. 144. 659. Nor to limit the legislature in 37. Const. Mo. 1875, art. XII, conferring police powers on mu- I 20; Atl. & Pac. R. R. v. St. njcipal corporations. Ex, parte Louis, 3 Mo. App. 315. Cowert, 92 Ala. 94, 9 So. 225. 38. Const. Ala. 1875, art. IV, 39. Const, of Mo. 1875, art. IV, §50. I 1. A general law is a law operative throughout the entire state; if §186 Constitutional Limitations. 429 The state usually has exclusive jurisdiction in the matter of suffrage and elections, and through the legisla- ture, has power to prescribe the method of conducting all elections, the qualification of electors, the registration of voters and contested elections, whether for state, county or municipal officers.'*'' Counties, townships, cities and other municipalities are prohibited from subscribing to capital stock of cor- porations.*^ These bodies are also restricted as to indebtedness.*^ The state usually regulates the fees of county officers,*^ and sometimes Constitutions limit the salaries or fees and terms of local officers.** 40. Arkansas. Const., art. III. Florida. Const., art. VIII. Georgia. Const., art XI, § 3. Kansas. Const., art. IV, § 169. Kentucky. Const., § 145, et seq. Missouri. Const. 1875, art. VIII, §§ 1-12; State ex rel. v. Owsley, 122 Mo. 68, 26 S. W. 659; Ewing V. Hoblltzelle, 85 Mo. 64, overruling same case in 15 Mo. App. 441; State ex rel. v. Mason, 155 Mo. 486, 56 S. "W. 636. Nebraska. Const., art. X, § 4; Dinsmore v. State, 61 Neb. 419, 85 N. W. 445; Van Horn v. State, 46 Neb. 63, 64 N. W. 365. New Yorlc. Const., art. II. Authority to frame and adopt a charter does not include power to provide a tribunal and clothe it with jurisdiction to hear and de- cide contests of elections of mu- nicipal officers. Fawcett v. Pritch- ard, 14 Wash. 604, 33 L. R. A. 674. 41. Indiana. Const,, art. X, § 198. Kentucky. Const., § 179. Missouri. Const. 1875, art. IX, § 6. Nebraska. 'Const. 1875, art. 'XII, § 1. See citations collected in note 31 in § 185. 42. See eh. 36 post. ' Iowa. Const., art. II, § 3; Coun- cil Bluffs v. Steiwart, 51 Iowa 385. Indiana. Const, art. XIII, § 220; Laporte v. Gamewell, 148 Ind. 466, 45 N. B. 588; Sackett v. New Albany, 88 Ind. 473. Kentucky. Const., §§ 157, 158. Missouri. Const. 1875, art. X, § 12. New York. Const., art. VIII, § 10. Washington. Const, art. VIII, § 150. 43. Illinois. Const., art. X, § 8, et seq. Missouri. Const. 1875, art. IX, § 12. 44. California. Const 1880, art XI, § 9. Illinois. Const., art X, § 8, et seq. 430 MuNICIPAl, COKPOBATIONS. 4187 In some constitutions this provision exists: Unless restricted by express provision of the Constitution, "the general assembly shall provide for the election or ap- pointment of such other county, township and municipal officers as public convenience may require." ^'^ But this provision only extends to officers provided for by legisla- tive act and performing state functions.*' § 187. Special and local laws relating to municipal cor- porations where a genered law can be made applicable. Many of the State Constitutions forbid, in express terms, the legislature from passing any local or special laws incorporating cities, towns or villages or changing or amending their charters, or laws affecting the inter- nal affairs of municipal corporations.*^ Kentucky. Const., § 160; Ader V. Newport, 9 Ky. L. Rep. 748, 6 S. W. 577; McDermott v. Louis- ville, 98 Ky. 50, 17 Ky. L. Rep. 617, 32 S. W. 264. New York. Const., art. X, art. XII, § 3. Missouri. Const. 1875, art. IX, § 13. "No term of oflSce shall exceed four years." Const. Mo. 1875, art. IX, i 14. 45. Missouri. Const. 1875, art. IX, § 14. Montana. Const., art. XVI, § 6. 46. See State v. Johnson, 123 Mo. 43, 27 S. W. 399. This section authorizes passage of a law providing for appoint- ing justices of the peace in St. Louis City. Spaulding v. Brady, 128 Mo. 653, 658, 31 S. W. 103. The legislature is authorized by this section to create the ofiSce of collector of the revenue, prescribe the term of the incumbent thereof, and provide how vacancy therein should be filled. State v. Herring, 208 Mo. 708, 727. This section does not apply to the jury commissioner of St. Louis. State v. Corcoran, 206 Mo. 1. "The general assembly shall, in •addition to other penalties, pro- vide for the removal from oflace of county, city, town and town- ship ofiBcers, on conviction of wilful, corrupt or fraudulent viola- tion or neglect of official duty." Const. Mo. 1875, art. XIV, § 7. 47. California. Const. 1880, art. IV, § 25; Dudley v. Superior Court, Cal. App. (1910), 110 Pac. 146. Georgia. Forbidden without notice. Const. 1877, art. Ill, § 7, par. 16. Illinois. Const. 1870, art. IV, § 22; People v. Cooper, 83 111. 585. §187 Special and Local Laws. 431 The usual constitutional provision forbidding local or special laws, in substance, provides that no special or local law shall be enacted in any case where a general law can be made applicable.*® Li some jurisdictions whether a general law can be made applicable is a legislative question.** Li others, it is a judicial one."" The Constitutions of Alabama, Kansas, Minnesota and Missouri so provide."* Iowa. Const., art. Ill, § 30; State V. Des Moines, 96 Iowa 521, 65 N. W. 818; Ex parte Prltz, 9 Iowa 30; Davis v. Wool- nough, 9 Iowa 104; Hetherington V. Bissell, 10 Iowa 145; Baker v. Steamboat Milwaukee, 14 Iowa 214. Ohio. Cities must be organized by general law. Const., art. XIII, § 6; State v. Brewster, 39 Ohio St. 653; Bronson v. Oberlin, 41 Ohio St. 481. South Dakota. Const., art III, § 27. 48. Const. Ala. 1875, art. IV, § 23; Const. Ark., art. V, § 25. 49. Alaiama. Clarke v. Jack, 60 Ala. 271. Arkansas. Little Rock v. Parish, 36 Ark. 166; Davis v. Gaines, 48 Ark. 370. California. People v. McFad- den, 65 Cal. 445, 15 Am. St. Rep. 66. Colorado. Brown t. Denver, 7 Colo. 305; Carpenter v. People, 8 Colo. 116. Illinois. Owners of Land v. People, 113 111. 296; Wilson v. Board, etc., 133 111. 443, 27 N. E. 203. Indiana. Longworth v. Com- mon Council, 32 Ind. 322; State V. Tucker, 46 Ind. 355; Vickery v. Chase, 50 Ind. 461; Kelly v. State, 92 Ind. 236; Johnson v. Wells Co., 107 Ind. 15; Wiley v. Bluffton, 111 Ind. 152, 12 N. E. 165; Evansville V. State, 118 Ind. 426, 21 N. E. 267. 4 L. R. A. 93; State v. Kol- sem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566. Kansas. State v. Hitchcock, 1 Kan. 178 ; Beach v. Leahy, 11 Kan. 23; Commissioners v. Shoemaker, 27 Kan. 77; Hughes v. Milligan, 42 Kan. 396, 22 Pac. 313; Commis- sioners V. Smith, 48' Kan. 331, 29 Pac. 565. Missouri. State v. County Court, 50 Mo. 317, 11 Am. Rep. 415; State v. County Court, 51 Mo. 83; Hall v. Bray, 51 Mo. 288; St. Louis v. Shields, 62 Mo. 247. North Dakota. Edmonds v. Herbrandson, 2 N. D. 270, 50 N. W. 970. 50. Clarke v. Irwin, 5 Nev. Ill; Hess V. Pegg, 7 Nev. 23; Evans v. Job, 8 Nev. 322; Ex parte Pritz, 9 Iowa 30, following Thomas v. Board of Commissioners, 5 Ind. 4, which latter case is overruled In Gentile v. State, 29 Ind. 409. 51. Minnesota. Const., art. 55, § 33, as amended in 1892. Missouri. Const. 1875, art. IV, S 33, par. 32. 432 Municipal Cobpoeations. § 187 When this rule prevails the judiciary must determine each case according to its peculiar facts and circum- stances and the acts should be construed with a view of ascertaining the intent of the constitutional provision.^^ The Missouri Constitution recites "In all other cases where a general law can be made applicable, no local or special law shall be enacted; and* whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judi- cially determined, without regard to any legislative assertion on that subject."*' The granting of relief to individual claimants is not within the provision of the Constitution which prohibits the enactment of special laws. Each claim stands on its own merit. A general law could not be made applicable, and when general- laws are not applicable special ones may be enacted. It is only when general laws are appli- jcable that special laws are forbidden.^* The constitutional provisions on this subject may be thus summarized: The legislature shall not pass any local or special law: 1. Regulating the affairs of * cities; 2. Authorizing the laying out, opening, altering or maintaining roads, highways, streets or alleys; 3. Vacating roads, towns plats, streets or alleys; 4. Eelating to cemeteries, graveyards or public grounds not of the state; 5. Incorporating cities, towns, or villages, or chang- ing their charters; 6. For the opening and conducting of elections, or fixing or changing the places of voting; 7. Creating offices, or prescribing the powers and duties of officers in * cities; 8. Legalizing the unauthorized or invalid acts of any officer or agent of any municipality. 52. Bckerson v. Des Moines, parte Pritz, 9 la. 30; State T. 137 la. 452, 115 N. W. 177; Rich- Squires, 26 la. 340. man v. Muscatine Co., 77 la. 513, 53. Const. Mo. 1875. 42 N. W. 422. 4 L. R. A. 444; Ex 54. Mount v. State, 90 Ind. 29. §187 Special and Local Laws. 433 The above provisions appear in tlie Constitution of Missouri. Identically the same, or similar provisions exist in the Constitutions of many states.^^ The Congress has forbidden the territorial legislatures from passing any local or special law incorporating or amending the charter of any city, town or village, or granting to such corporations any special or exclusive privilege, immunity or franchise.^* 55. Illinois. Const. 1870, art. IV, § 22; Owners of Land v. Peo- ple, 113 III. 296. Iowa. Const., art. Ill, § 30; State V. Des Moines, 96 la. 521, 65 N. W. 818. Kentucky. Const., § 59. Missouri. The above pro- visions are prospective In their operation. State ex rel. v. Cape Girardeau and S. L. R'. R., 48 Mo. 468; See Eyerman v. Blaksley, 78 Mo. 145. It has been held that the estab- lishment of courts of inferior jurisdiction by special legislation is ■within the discretion of the legislature. State ex rel. v. Boone County, 50 Mo. 317; State ex rel. V. Pinger, 50 Mo. 486. As for ex- ample, the St. Louis Court of Criminal Correction. State v. Ebert, 40 Mo. 187. And the Pro- bate Court of Boone County. State ex rel. v. Boone County, 50 Mo. 317. But see dissenting opin- ion of Judge Wagner. So in the case of State ex rel, V, Wilcox, 45 Mo.' 458, a law authorizing cities, towns and vil- lages to organize for school pur- poses, with special privileges, was held valid op the ground that the act was as general as was con- sistent with its scope and design. and was coextensive with the state. Montana. Const., art. V, § 26. Nebraska. Const. 1875, art. Ill, § 15. It by no means follows that the legislature is free to pass laws upon any subject, unless in ex- press terms prohibited by the Con- stitution. The inhibition may be by implication as well as by ex- pression. State, v. Moores, 55 Neb. 480, 489, 76 N. W. 175, 41 L. R. A. 624. New Jersey. Const., art. IV, § 7. New York. Const., art. Ill, § 18. Oklahoma. Const., art. V, | 46. Pennsylvania. Const., art. Ill, S 7. West Tirdinia. Const., art. VI, § 39. This does not prohibit the legis- lature from repealing by special law the charter of a municipal corporation, or from uniting sev- eral municipal corporations into one. South Morgantown v. Mor- gantown, 49 W. Va. 729, 40 S. B. 15. Wisconsin. Const., art. IV, § 31. 56. 24 U. S. Statutes at Large, c. 818. 1 McQ.— 28. 434 Municipal Cobpoeations. § 188 § 188. The legislature shall not regulate the business or internal affairs of municipal corporations. The constitutional restriction forbidding the legisla- ture from passing local or special laws regulating the business or internal affairs of municipal or other public corporations^^ are not construed uniformly by the judi- cial decisions. Clearly the provision is designed to put it out of the power of the legislature to make any changes in the system of government of any particular municipality by separate legislation. As stated by the New Jersey court: "Normally, there can be, under the Constitutions of many states, no such thing as local or special legislation to regulate the internal affairs of municipalities, but all legislation to that, end must be general and applicable to all alike. Nor can any departure from the rule be justified, except where, by reason of the existence of a substantial difference between municipalities, a general law would be inappropriate to some, while it would be appropriate to and desirable for others. There it would be warranted, not only by the necessities of the situation, but a reasonable construction of the constitutional pro- vision. In such case, the municipalities in which the peculiarity exists, would constitute a class, and the legis- lation would in fact be general, because it would apply to all to which it would be appropriate." ^* The following laws have been declared unconstitutional under the provision herein considered: An act providing for additional powers and specified changes in the government of certain localities gov- 57. Illinois. Const. 1870, art. Pennsylvania. Const., art. Ill, IV, § 22; People v. Knopf, 183 §7; Com. v. Gilligan, 195 Pa, 111. 410, 56 N. B. 155. St. 504, 46 Atl. 124. New Jersey. Const., art. IV, § West Virginia. Const., art. VI, 7, par. 11. § 39. Oklahoma. Const, art. V, § 46. 58. Hammer v. State, 44 N. J. L. 667 § 188 Regulation of Intebnal Affairs. 435 emed by commissioners, applicable alone to seaside resorts so governed.^" A law altering the wards of a city by special act.®" An act withdrawing from a city the right to license inns and taverns.®^ An act concerning publication of municipal proceed- ings relating, not to all cities of the state, but to those only in which a German newspaper had been published for three years before its passage.®^ An act to establish a license department in cities con- taining more than 15,000 inhabitants and in which the granting of licenses is not already vested in a board of excise or in the court of common pleas.** An act which permitted the holding of special sessions of the courts in a designated county at a place other than the county seat."* An act to determine and fix the fees of named county officers."^ An act touching the regulation and maintenance of fences in a certain coun- ty.«« A statute making it unlawful for the board of county commissioners of any county having a population of over 25,000 to contract for the construction of a court house in such county, except upon petition therefor, filed by at least 500 reputable resident freeholders of the county.*'^ An act increasing or decreasing the annual expenses of a county.** 59. Ross V. Winsor, 48 N. J. 65. Morrison v. Bachert, 112 L. 95. Pa. St. 322. 60. Dempsey v. Newark, 53 N. 66. Frost v. Cherry, 122 Pa. J. L. 4, 20 Atl. 886. 417, 15 Atl. 782. 61. Tiger v. Morris Common 67. Kraus v. Lehman, 170 Ind. Pleas, 42 N. J. L. 631. 408, 83 N. E. 714. 62. State v. Trenton, 54 N. J. 68. Passaic v. Stevenson, 46 N. L. 444, 24 Atl. 478. J. L. 173. 63. Closson v. Trenton, 48 N. J. Act regulating county business. L. 438. Roungs v. Hall, 9 Nev. 212. 64. Scowden's Appeal, 96 Pa, Regulations of internal affairs St 422. of county. State v. O'Conner, 54 '436 Municipal Coepoeations. § 189 An act removing the fire and police departments in the cities of a state from political control, and which ex- cludes from its operation those cities which have police commissioners appointed in pursuance of other statutes.*® On the other hand, a legislative act establishing a court for a named county, was sustained in Indiana against the contention that it was an attempt to regulate county business/" So a statute prohibiting the issile of a new license to sell liquor within a mile from an incorporated camp meeting, is not unconstitutional as special legislation" regulating the internal affairs of cities.''* '§ 189. Same — ^by commissions. The following provision is found in some constitutions : "The legislature shall not delegate to any special com- mission, private corporation, or association, any power to make, supervise or interfere with any municipal im- provement, money, property, effects, whether held in trust or otherwise, or levy taxes, or to select a capitol site, or to perform any municipal function whatever." ''^ An act appointing side-path commissioners and giving them authority to receive taxes levied by county com- missioners on bicycles and expend the money on side-paths in the highways is unconstitutional in view of N. J. Li. 36, 22 Atl. 1001; Loftus 71. Sexton v. Board of Excise V. F. & M. N. Bank, 133 Pa. St. Comr's, 76 N. J. L. 102, 69 Atl. 97, 19 AU. 347. 470. Further, see Hudson v. Buck, 51 See Long Branch v. Sloan, 49 N. J. L. 155, 16 Atl. 698; Heifer v. N. J. L. 356, as to limitations of Simon, 53 N. J. L. 550, 22 Atl. 120; the application of the constitu- Turner v. Fish, 19 Nev. 295; San tional provision; also. State v. Luis Obispo v. Graves, 84 Cal. 71, Newark, 53 N. J. L. 4, 20 Atl. 886. 23 Pac. 1032; Pratt v. Browne, 72. Const. South Dak., art. Ill, 135 Cal. 649, 67 Pac. 1082. § 26; Const. Cal. 1880, art. XI, 69. State v. Nealon, 73 N. J. L. ^13; Const. Pa. 1874, art. HI, 100, «2 Atl. 182. § 20. 70. Eitel V. State, 33 Ind. 201; See § 172 ante- Stevens v. Anderson, 145 Ind. 304, 44 N. E. 460. § 189 Inteenal Affaiks : Commissions. 437 this provision/* So an act giving the governor in his discretion on the application of one hundred voters, power to appoint a commissioner to district and re-dis- trict wards in a city is unconstitutional because it authorizes the regulation of municipal affairs/* Civil service commission. Under the Constitution of New Jersey it has been held that the legislature may delegate municipal governmental powers to a commis- sion — here a civil service commission appointed by the governor of the state — whose members are not chosen from among the citizens or inhabitants of the municipal- ity, even though the exercise of such powers in the municipality is made to depend upon the consent of its voters. An act creating a commission was adopted by the local board of freeholders in the manner prescribed. It prohibited appointments to and promotions in the civil service except according to merit and fitness, to be ascertained as far as practicable by competitive examina- tions, and made all appointments, transfers,' re-instate- ments and promotions subject to the act. The court said the broad question for decision was "whether in our system the right of local self-govern- ment is guaranteed to the people of the several political divisions of the state, so that the legislature has no power to provide for the government of those divisions by commissions unless such commission is chosen by the people themselves. For, upon consideration, we must reject the suggestion that the mere appointment of the members of a commission from among the citizens or inhabitants of the municipality affected is any guaranty of local self-government. In order that self-government may amount to more than a name, it is essential that thfe officials to whose discretion the powers of government are confided should be representative of the will of the governed, that they should be' chosen by the electors of 73. Com. V. Dauphin Co. 74. Gllhooly v. Elizabeth, 66 N. Comrs., 23 Pa. Co. Ct. R. 646. J. L. 484, 49 Atl. 1106. 438 Municipal, Coepoeations. § 189 tlie locality affected, and thus impressed with a sense of direct responsibility to the people. "Nor does the circumstance that the acceptance of the system is made to depend upon the previous consent of the electors of the municipality make the system a sys- tem of local self-government. For the principle of local self-government does not contemplate nor permit that the voters by a single election shall take from themselves and those who are to come after them the control over their affairs for an indefinite time. "Accepting, therefore, the phrase 'government by commission' as sufficiently describing a method of local government by a governing body not periodically chosen by the local electors, the question is whether it is pro- hibited by our fundamental law." The court concluded that the Constitution of New Jersey did not forbid the legislature from passing gen- eral laws, providing for the appointment of commissions to regulate municipal affairs. The method of reasoning in reaching this conclusion is set out in the footnote.'^'' 75. State commissions to reg- general assembly.' Section 7 of ulate municipal affairs sustained the same article contains numer- — uniform recognition of right ous limitations upon the powers of local self-government In New of the legislature. The Bill of Jersey denied. "Now, the gov- Rights, contained la article 1, Im- ernment of this state was estab- ppses other limitations. But It Is llshed by the people upon the significant that the whole of the basis of a written Constitution Constitution may be searched In that assumes to declare certain vain for any specific provision rights and privileges of the peo- guaranteeing to the people the pie, to establish and define the right of local self-government, or right of suffrage, and to distribute prohibiting the legislature from the powers of the government exercising powers of local govern- Into three distinct departments, ment through the Instrumentality the legislative, executive and of commissions, however chosen, judicial, to define the powers of "Nor is the argument for the these departments and impose existence of the alleged right limitations thereon. aided by the language of the pre- "Article 4, sec. 1, par. 1, de- amble. 'We, the people of the Clares that 'the legislative power state of New Jersey, grateful to shall be vested In a senate and Almighty God for the civil and 4 189 Intebnal, Affairs: Commissions. 439 Bridge and highway commission and district. The legislature of Connecticut created from five towns a bridge and highway district for the construction and maintenance of a free bridge and highway across the Hartford Eiver. Four citizens of Hartford and one from religious liberty which He hath BO long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, do ordain and establish this Constitution.' For we are still to look to what is thereafter written for the spe- cific provisions that the people did thereby ordain and establish for the purpose of accomplishing the aim of securing and trans- mitting the liberties of the people to succeeding generations. It Is impossible to so construe the pre- amble as to write something into the Constitution that its framers did not write Into It. If we were to write 'local self-government' Into the Constitution because we consider that to have been one of the means by which civil and religious liberty were theretofore enjoyed, we might with equal pro- priety write Into it other things that at one time or another had been conducive to such liberty. And if we were thus to write local self-government Into the Constitution, in what terms should It be defined? What class of subjects should local govern- ment include? Should it include only local police regulations, strictly so called, or should it in- clude schools, municipal water- works, lighting works, sewers, and the like? And how is local self-government to be exercised, how are the members of the gov- erning body to be chosen, and what are to be their qualifi- cations? The argument drawn from the preamble, hazy as it is, has the double fault of proving too much, if it proves anything, and of not defining what it proves. "Nor is the argument aided at all by / that section of the Bill of Rights which reads: 'This enumeration of rights and privi- leges shall not be construed to impair or deny others retained by the people.' This manifestly re- fers to personal, and not to gov- ernmental, rights. For full gov- ernmental powers were by this Instrument conferred upon the government thereby established. The legislative power was thereby vested in the general legislature, maker of laws for the whole state, and for every part of it, without any other limitation than that which the Constitution itself in express terms imposes. As point- ed out by Justice Van Syckel in Fritts V. Kuhl, 51 N. J. L. 204, 17 Atl. 107: 'It is a postulate of a state Constitution, which dis- tinguishes it from the Federal Constitution, that all the power of the people is delegated by it except such parts of it as are specifically reserved.' "It is the very essence of gov- ernment that it shall operate upon those who are unwilling to be governed. The right of local self-government,^ if It exists, necessarily limits to that extent 440 Municipal Cobpoeations. §189 each of the other towns were appointed "commissioners for the district," with full power to construct and recon- struct the bridge and approaches and highway, and their orders were made obligatory upon the towns, and they were given ample authority to receive from the the powers of the general govern- ment; it creates, in some sense and to some extent, an imperium in imperio. Such a limitation is not to be implied. "Nor does it seem to us that the reference in different parts of the Constitution to the cities, townships and counties, either as senatorial or assembly districts, or as judicial districts, or as dis- tricts, for the purpose of qualify- ing voters, or the like, has any- thing to do with the question how the internal affairs of these sev- eral districts shall be governed. "Our municipalities are not imperia in imperio; they are but agencies of the state erected in and for limited parts of its terri- tory, whose governments are established by the state for limited purposes that are of par- ticular concern to the immediate inhabitants, but at the same time are of concern to the people at large. "But counsel for the defendant in error contends that the right of local self-government has existed in the people of New Jersey from time immemorial; that it lies at the foundation of our institutions; that it was not surrendered by the people to the legislature, and is therefore im- pliedly protected by the Constitu- tion. "The whole of the argument favorable to this view of the mat ter is summed up In the well known Michigan case of People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. Tiie principal circumstances from which the court there found in the Constitution of that state implied restrictions upon the power of the legislature, as re- gards local government, were: First, that the Constitution was adopted in view of a well-under- stood and tolerably uniform sys- tem of local government existing from the earliest settlement of the country; and, secondly, that the liberties of the people were generally supposed to spring from, and to depend upon, that system. "With respect to the second point, whatever may be the his- torical origin of the liberties of the people, they seem to be dependent at the present day upon the right of the people to participate by suffrage and by representation in the government which they themselves have estab- lished under the guaranties of a written Constitution. The ab- sence from such written Consti- tution of any guaranty of local self-government is a cogent argu- ment against its existence as a right. "With respect to the first point, the Constitution of this state was not adopted in view of any uni- form system of local govern- ments, for we have none such; certainly no uniform recognition §189 Internal Affairs: Commissions. 441 town treasurer any sums which they might direct to be paid. Upon appeal from the issue of a peremptory man- damus to enforce the payment by the treasurer of one of the towns of an order drawn upon him by the commis- sion, it was contended by that town that it cannot thus of the right of local self-govern- ment that is here contended for. "From the commencement of our existence as a state, under the Constitution of 1776, until the adoption of the present Consti- tution in 1884, municipal char- ters in considerable number were enacted by the legislature, with- out any semblance of uniform adherence to the principle of local self-government. Counsel for plaintiff in error has sub- mitted references to many of the charters of that period, among which the following may be men- tioned: "The town of New Brunswick was incorporated In 1784. Pater- son's Laws, p. 56. The first officers were named in the act. Their successors were to be chosen by the qualified voters of the city. A new charter was sub- stituted in 1801. P. L. 1801, p. 244. This provided that the mayor, recorder and aldermen should be appointed by the coun- cil and general assembly of the state in joint meeting and com- missioned by the governor; coun- cilmen to be chosen by the local electors. "The city of Burlington was Incorporated In 1784. Paterson's Laws, p. 70. The mayor, recorder and aldermen were to be ap- pointed by the council and gen- eral assembly In joint meeting. "The city of Perth Amboy was incorporated in 1784. Paterson's Laws, p. 64. The charter pro- vided that the mayor, recorder and aldermen should be appointed by the council and general assembly. "So with the charter of the borough of Elizabeth, enacted in 1789. Paterson's Laws, p. 94. ; "The city of Trenton was incor- porated in 1792. Paterson's Laws, p. 116. Its charter provided that the mayor, recorder and alder- men were to be appointed by the general assembly of the state in joint meeting and commissioned by the governor, with assistants, and a clerk, assessor and col- lector to be chosen by the free- holders and inhabitants of the city. "The borough of Princeton was incorporated in 1813. P. L. 1813, p. 7. The mode of choosing the officials was the same as in the case of Trenton. "Jersey City was incorporated by P. L. 1820, p. 86. The first board of selectmen were ap- pointed by the act, to serve until their successors were chosen by the freeholders and other taxable Inhabitants. "Bordentown was Incorporated by P. L. 1825, p. 95; the first officials being appointed by the act, their successors to be elected. "On the other hand, the city of Camden, incorporated in 1828, and the city of Newark, incorporated 442 Municipal Cobpoeations. §189 be compelled to contribute at the dictation of officials not of its own choosing to the cost of maintaining a highway which is wholly outside of its territorial bounds. The court, per Baldwin, J,, held that the Constitution of the state secured to the towns as territorial subdi- in 1836^ had from the beginning the power of choosing their own ofBcials. P. L. 1827-28, p. 193; P. L. 1835-36, p. 185. "These charters were likewise different one from the other in respect to the powers that were conferred upon the several mu- nicipalities. "We thus see that prior to the adoption of our present Consti- tution no uniform system of local governments had been estab- lished, nor was there any general recognition of the right of local self-government. Municipal pow- ers were conferred or withheld as the legislature deemed proper. And the privilege of local self- government was likewise con- ferred in some instances and withheld in other Instances, according to the wisdom of the lawmakers. "Our present Constitution is therefore not to be construed as If it were adopted in view of any established and uniform sys- tem of local self-government. "As already observed, that instrument may be searched in vain for any provision guarantee- ing that privilege to the people. "The course of legislation under the Constitution of 1844, and the character of the amendments that were adopted by the people after thirty years of such legislation, demonstrate, as we think, that the power of the general legisla- ture over local municipal estab- lishments is not hampered by any limitation guaranteeing local self- government. "During thirty years following the adoption of the Constitution the legislature repeatedly estab- lished, by special laws, commis- sions for the government and reg- ulation of local and municipal affairs, without conferring upon the people of the locality the right of selecting the commis- sioners, and without even pre- ficribing that the commissioners should be resident in the locality particularly affected. In numer- ous instances the legislature, in the act, designated by name com- missioners to exercise powers of local government. In many cases, it is true, the succeeding commissioners were to be chosen by the people; but this was by no means the Invariable rule. In some cases vacancies were to be filled by the governor, in other cases by the Justice of the su- preme court, or by the circuit court or court of common pleas. Sometimes the act provided that the remaining commissioners should fill vacancies, sometimes that they should only nominate, and that some other body should make the appointment to fill a vacancy. In some notable in- stances, the people had no direct voice in the choice of either the first or succeeding commissioners. §189 Intebnal Affaies: Commissions. 443 visions of the state certain political privileges in perpe- tuity, among others the election by each town of its own representative in the general assembly and it own selectmen and such officers of local police as the law might prescribe. "It secured them because it granted them; not because they previously existed. Towns have "The acts of legislation referred to are so exceedingly numerous that a detailed reference to them would unduly prolong this opin- ion. The learned counsel for plaintiff in error, at the request of the court and with very great labor and pains, has prepared a list of such acts, the accuracy of which is not questioned. In a footnote we give a suflScient num- ber of references to show the ex- tent to which the legislature, dur- ing the period mentioned, exercis- ed the power of regulating munici- pal affairs by commissioners chosen otherwise than by the peo- ple locally concerned. "If, in view of the course of legislation referred to, any doubt could be deemed to exist as to the power of the legislature to provide for the government of local affairs by commission or otherwise, without regard to the privilege of local self-govern- ment, we are clear tha,t it must be taken as wholly set at rest by the action of the people them- selves in adopting the constitu- tional amendments of 1875, one of the most important and con- spicuous of which was the inser- tion In section 7, art. 4, of a new paragraph, the pertinent por- tions of which are as follows: 'the legislature shall not pass pri- vate, local or special laws in any of the following enumerated cases, that is to say: 'Laying out, opening, altering and working roads or highways. 'Vacating any road, town plot, street, alley or public grounds. 'Regulating the internal affairs of towns and counties; appointing local offices or commissions to regulate mu- nicipal affairs. • • * " 'The legislature shall pass gen- eral laws providing for the cases enumerated in this paragraph, and for all other cases which, in its judgment, may be provided for by general laws.' "This amendment was adopted in full view of, and in part, be- cause of, the practice so long pursued by the legislature of pass- ing special laws providing for local government. What the peo- ple prohibited was the passage of private, local, or special laws in these cases, as well as in the other cases enumerated. But this prohibition was accompanied with the express authorization — if not mandate — 16 pass general laws providing for such cases. There is here clear authority in the letter of the Constitution, as amended, for the legislature to pass general laws providing tor the appointing of commissions to regulate municipal affairs." Booth V. McGuinness, (Court of Errors and Appeals, of New Jersey, February 4, 1910), 80 N. J. L. — . 76 Atl. 455, 457 to 460. 444 Municipal Cobpoeations. § 189 no inherent rights. They have always been the mere creatnrei of the colony or the state with such functions and such only as were conceded or recognized by lawJ" The state possesses all the powers of sovereignty, except so far as limited by the Constitution of the United States. Its executive and judicial powers are each distributed among different magistrates, elected some for counties and some for the state at large; but its whole legislative power is vested in the general assembly. Our constitu- tion imposes a few, and only a few, restrictions upon its exercise and except for these the general assembly, in all matters pertaining to the domain of legislation, is as free and untrammeled as the people would themselves have been had they retained the law-making power in their own hands or as they are in adopting such con- stitutional amendments from time to time as they think fit. * * * "It has been suggested that in colonial times it was the right of the inhabitants of every town, themselves, to order the municipal duties assigned to them and choose the officers by whom only it could be placed under a pecuniary obligation, and that is one of those rights and privileges 'derived from our ancestors,' to 'define; secure and perpetuate' which our constitution was adopted and to which its preamble refers. If it can be said that such a right ever existed, it was not one of the nature of those which were described by the framers of the Constitution. They were speaking of rights per- sonal to the individual as ^ citizen of a free common- wealth. Civil as distinguished from political; and belonging alike to each man, woman and child among the people of Connecticut. Such of them as they deemed most essential they proceeded to specify in the Declara- tion of Eights. And here we find asserted (Art. I, >§ 2) that 'all political power is inherent in the people and all free governments are founded on their authority' and 76. Webster v. Harwinton, 32 Conn. 131. § 189 Intebnal Apfaibs : Commissions. 445 subject to such alterations in form from time to time ' as they may think expedient.' If there were any absolute right in the inhabitants of our towns to regulate their time, finances and affairs which was superior to all legislative control it would be a great 'political power.' It would create an imperium in imperio and invest a certain class of our people — those qualified to vote in town meetings — with the prerogative of defeating local improvement which the general assembly deemed it nec- essary to construct at the expense of those most bene- fited by them under the direction of agents of the state, unless the work were done and its cost determined under town control. No set of men can lay claim to such privileges under the Constitution of Connecticut."''^ Galveston Commission Act. In Texas a legislative act providing for the government of Galveston by five com- missioners, three of whom were appointed by the gov- ernor of the state, and two elected, was held constitution- al by the supreme court of that state, and unconstitu- tional by the court of criminal appeals. The note sets out fully the respective views of these courts.'^* 77. State ex rel. v. Williams, contended that the conviction was 68 Conn. 131, 146, 35 Atl. 24, 48 null and void because the charter L. R. A. 465. of the City of Galveston provided See Booth v. Woodbury, 32 that the board of aldermen of Conn. 118, 124; Webster v. Har- said city, called the board of com- winton, 32 Conn. 131, 139. missioners, should consist of five 78. Inherent right of local commissioners, three of whom self-government Independent of were required to be appointed by constitutional guaranty and be- the governor, which board was yond legislative control. In Ex invested with the entire govern- parte Lewis, 45 Tex. Crim. App. ment of the city. The court, in 2, appellant was convicted in the holding the ordinance invalid, recorder's court of the City of and the appointment of said of- Galveston for violating a sanitary ficers illegal, quoted extensively ordinance of that city. This the opinion of Judge Cooley in ordinance was passed by what the case of People v. Hurlbut, 24 was known in the charter as the Mich. 44, 9 Am. Rep. 103. "Board of Commissioners," which "We do not understand that was in fact the board of alder- the Constitution grants power men of said city. The appellant '-hich is not expressly reserved 446 Municipal Coepoeations. §190 § 190. "Corporate powers" or "municipal purposes" cannot be conferred or created by special lawsJ^ The provision has been construed in Kansas to include 79. "Corporate powers" or "municipal purposes." "The gen- eral assembly shall pass no special act conferring corporate powers." Ohio Const., art. XIII, § 1. Certain statutes held to be in conflict with this provision. State V. Cincinnati, 23 Ohio St. 445; Atkinson v. Marietta, etc. R. Co., 15 Ohio St. 21. Statutes held not to be in con- flict with this provision. State v. Covington, 29 Ohio St. 102; Pennsylvania, etc. Canal Co. v. Board of Com'rs, 27 Ohio St. 14; Foster v. Wood County, 9 Ohio St. 540. No private or special law incor- porating villages permitted. N. Y. Const, art. Ill, § 18; Reed to the legislative body of the gov- ernment. This is reserved to the people. Only the law-making power belongs to the legislature, and this must be in accordance with the Constitution and with the principle of local self-govern- ment reserved to the people of the state, because the Constitu- tion says that all political power is inherent in the people, not In the legislature, and the right of local self-government is reserved to the state. Local self-govern- ment is not a mere whim ex- pressed by the legislative depart- ment, nor does it appertain to any distinctive locality of the state, but to the whole state, as it had aforetime existed in the state. V. Schmit, 39 Hun (N. Y.) 223. Nor for "incorporating cities, towns, or villages, or changing their charters." Okl. Const., art. V, § 46. Kan. Const., art. 12, § 1, "leg- islature shall pass no special act conferring corporate powers." Act providing for the govern- ment of the fire and police depart- ments in cities of the first class having a population of over forty thousand inhabitants, confers corporate, powers and Is special. State V. Downs, 60 Kan. 788, 57 Pac. 962. See article in 35 Cent. Law Jour. 266, on "Special Acts conferring corporate powers on municipal corporations." The principle of local self-govern- ment is applicable to every or- ganized portion of the state, and if, in the history and traditions of our commonwealth, as well as that of other states, municipal- ities always exercise the right to select their own local municipal officers, then it would seem to fol- low that this was a part of local self-government which remains unimpaired to the state. The legislature is the law-making power, 3,nd to it alone is reserved the authority to make laws; but it has no right under the guise of its law-making authority to overturn the principles of local self-government which have been handed down to us from our § 190 COKPORAIE POWEES : MUNICIPAL PURPOSES. 447 municipal corporations,®" and, in Nebraska, also school districts, and precincts.** 80. state v. Maloy, 20 Kan. 619; City Council of Grove, 20 Kan. 619; State v. Newarlc, 40 N. J. L. 550; State ex rel. v. Mitcliell, 31 Ohio St. 592; State ex rel. v, Cincinnati, 20 Ohio St. 18. 81. Clegg V. Richardson, 8 Neb. 178; Precincts, Dundy v. Richardson Co., 8 Neb. 508, 518. fathers. Nor will it be con- sidered that the right to make laws on the part of the legis- lature carries with it the right to appoint to office, either by themselves or through an agent. They undoubtedly have the right to create offices and prescribe their duties, but here their law- making functions cease, and the filing of the offices belongs to the locality." Contra. Local self-government does not exist in Texas. In Brown v. City of Galveston, 97 Tex. 1, 14, 15, 16, which was an injunction brought by citizens of Galveston, similarly situated, whereby they sought to restrain the enforcement of certain ordi- nances of that city requiring tjie payment of license dues or taxes upon vehicles kept for public and private use or hire, and for judg- ment declaring the said ordl* nances invalid for the reason that the charter of Galveston, granted by act of the legislature, provided for the appointment by the gov- ernor of three commissioners for said city, ' who, with two others, elected by the city, should con- stitute its board of commissioners, who were by charter Invested with full power of government in the city, (it involving the same class of officers, the appointment of which was attacked in Ex parte Lewis, supra,) the court held that, the appointment of the three commissioners by the gov- ernor was a valid provision and that the city possessed no inher- ent right of local self-government founded upon history and tra- dition. Appellant contended that the city of Galveston had the inher- ent right to select their own mu- nicipal officers, and that the legis- lature had no power to authorize the governor of the state to appoint municipal officers for. that city. The doctrine thus sought to be established was that in the absence of grant, of authority in the Constitution authorizing the appointment of such local author- ities by the governor or the legis- lature the power itself was de- rived by implication arising from tl\e history and traditions which from time out of mind had con- ferred local self-government on municipalities. The court ad- hered to the doctrine that a mu- nicipal corporation exists only by and through an act of the legis- lature of the state, and that it has no power other than that granted by charter, and can have no officer not provided for by law. Brown, J., in this decision, says: "The doctrine of vested rights and powers, derived from history and traditions, asserts a 448 Municipal, Cokpobations. §190 However, in Kansas, it has been held that school dis- tricts belong to that class of political organizations called higher law than the Constitution, for if i;i the absence of a prohi- bition the legislature cannot enact a law in contravention to history and traditions, the con- vention could not by express pro- vision authorize it to be done. The legislature of Texas may ex- ercise any power that could be exercised by a constitutional con- vention except wherein the Con- stitution contains a prohibition, express or implied. According to the theory an unorganized com- munity has rights which cannot be enjoyed and powers which can- not be used until those rights are conferred and the powers are granted in the form of a charter. Yet the dormant rights and powers are protected by history and tradition and are thus made superior to the creative power. * * * The legislative power of the state means all of the power of the people which may properly be exercised in the formation of laws against which there Is no inhibition, express or implied, in the fundamental law. Since a municipal corporation cannot exist except by legislative author- ity, and can have no ofBcer which is not provided by its charter, and can exercise no power which is not granted by the legislature, it follows that the creation of such corporations and every pro- vision with regard to their organi- zation is exercised by legislative power which inheres in the whole people, or by the Constitution as delegated to the legislature. Therefore, it is within the power of the legislature to deter- mine what form of government will be most beneficial to the pub- lic and to the people of a par- ticular community. The doctrine is in conflict with the well-settled principle of constitutional con- struction , that the powers of the legislature must be restrained only by prohibition, express or implied, through some provision or provisions of the Constitution itself." Lytie v. Halft and Bro., 75 Tex. 132; Harris Co. v. Stewart, 91 Tex. 143. "The doctrine rests upon a basis, which is opposed to the well-settled rule of construction, that a law which has been passed by the legislature of the state cannot be set aside by the courts because it is in conflict with a principle of justice, nor because of its conflict with the spirit of the Constitution." " Cooley, Const. Lim. 205. That author says: "Nor are the courts at liberty to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words. "* * * In fact, this theory is out of harmony with the prac- tice of representative state gov- ernments in America, and opens up a broad field in which to search for grounds to declare the will of the legislature void with- out a shadow of authority in the well established powers of the courts under our Constitution. As the court said in Redell v. r.Ioores, 63 Neb. 219, 55 L. R. A. 740, 88 N. W. 243, 93 Am. St, Rep. 431: "It is an elusive § 190 COEPOEATE POWBBS : MUNICIPAL PuEPOSES. 449 gMasi-corporations, and not public corporations. Hence, in that state, a special act authorizing a school district to issue bonds to build a school house does not violate something, elastic and uncertain, is an unwritten constitution, whicli may be invoked to defeat the legislative will." "The doc- trine furnishes us no standard or rule by which to determine the validity of any law framed by the legislature, but leaves it for the judge to try it according to his own judgment of what consti- tutes the history and traditions of the state and what rights have been vested in the people by rea- son of such history and traditions. To this theory we cannot give our assent, but must adhere to the well established rule of construc- tion, which confines the court to the Constitution as the standard by which to determine the valid- ity of legislative enactment." In Callahan v. Tobin, 40 Tex. Civ. App. 441, 450, 90 S. W. 328, 332, the mayor and council sought to appoint fire and police olflcials of the City of San Antonio in violation of a charter provision of the city vesting the right of ap- pointment in a civil service com- mission of three members ap- pointed by the mayor and con- firmed by the council, claiming the charter provision for a com- mission to be illegal. The court, following the case of Brown v, the City of Galveston, 97 Tex. 1, held that no valid reason could be advanced against the placing of the management and control of the police and fire departments of a city in the hands of a com- mission, since it had been def- initely settled that the powers and prerogatives usually granted 1 McQ— 29 to mayors and city councils could be taken from them altogether and vested in a commission ap- pointed by the governor. In Kettle v. Dallas, 35 Tex. Civ. App. 632, 640, the doctrine of Brown v. City of Galveston, 97 Tex. 1, was followed. The legis- lature by charter amendment au- thorized the City of Galveston to create improvement districts for the construction and repair of streets and alleys, and charged the cost or part thereof against real estate within said district which was specially benefited. It was held by the court that the organization and creation of mu- nicipal corporations is by the ex- ercise of legislative power which inheres in the whole people but is delegated by the Constitution to the legislature. Hence the legislature is authorized to deter- mine what form of government is best adapted for a particular community and it can be re- strained only by some express or implied provision of the Con- stitution itself. Precedence of decisions of the supreme court of Texas and tlie court of criminal appeals. In the case of Commissioner's Court of Nolan County v. Beal, 98 Texas 304, 108, 109, wherein it was sought by mandamus to have a local option election declared in- valid, the supreme court held the local option statutes are strictly and essentially criminal laws, prosecution thereof must be in the criminal courts and, as in crim- inal cases, appeals lie to the court 450 MuNICIPAIi COEPOEATIONS. §190 that provision of the Constitution which forbids special legislation relating to municipal or other public corpora- tions.^^ Under this provision a municipal election is a corporate purpose.^^ So is the opening of a street.^* A constitutional provision requiring the creation and organization of municipal corporations under general laws, and forbidding ' ' special acts, conferring corporate t)owers," renders void a special law granting power of special taxation for local improvements,^® or power to issue bonds to pay a municipal deficiency,*® or extending the city limits.®^ A special act of the legislature authorizing a village to issue bonds for waterworks was adjudged not a grant of " corporate powers or privileges, ' ' within the meaning of criminal appeals as the court cf last resort. The validity and construction of such laws Is for the exclusive determination of the court of criminal appeals while the decision of the supreme court Is final over civil causes. Upon questions of criminal law which might arise in the supreme court. It would defer to the opinlpn of the court of criminal appeals while upon questions of civil law the latter would acceipt the rulings of the supreme court. The local option law which both confers civil rights and declares offenses punishable In the criminal courts, the validity of the whole being subject to attack, may be deter- mined In either, and neither la bound by the decision of the other. Hence in Brown v. Galveston, 97 Tex. 1, the question being the right of the city government to maintain Itself under the legisla- tive act, the supreme court was not bound by the decision of the court of criminal appeals in Ex. parte Lewis, 45 Tex. 2, 73 S. W. 811, nor was the court of criminal appeals so bound by the holding thereon of the supreme court. 82. Beach v. Leahy, 11 Kan. 28, per Brewer, J., points out dis- tinctions between different kinds of public corporations, approved in State v. Downs, 60 Kan. 788, 790, 57 Pac. 962. 83. Wetherell v. Devlne, 116 111. 631, 5 N. B. 596. 84. Sinton v. Ashbury, 41 Cal. 525. 85. Gilmore v. Norton, 10 Kan. 491; Atchison v. Bartholow, 4 Kan. 124. 86. Herrmann v. Cincinnati, 9 Ohio Cir. Ct. 357; State ex rel. v. Anderson, 44 Ohio St. 248; State ex rel. v. Smith, 48 Ohio St. 211; State ex rel. v. Toledo, 48 Ohio St. 112. 87. Wyandotte t. Wood, 6 Kan. 603. § 191 Unifoem System op Local Govebkment. ' 451 of the Constitution. The words were held equivalent to the phrase "to grant corporate charters." ** In Ohio the view is taken that the provision was not intended to withhold the power to provide such local or special laws as public interests might require.®* § 191. Uniform system of local government is usually required.®" Many state constitutions provide, in substance, that the legislature shall establish but one system of town and county government which shall be as nearly uniform as practicable throughout the state, or sometimes, the general assembly shall provide by a general law for a township organization.®^ Ordinarily, such provision is held mandatory.'^ How- ever, in California it was regarded as directory.®* The evident purpose of this provision is to prevent the legislature from establishing different systems of local government for the cities, towns, counties and town- ships, and also to prevent special legislation. This pro- vision construed in connection with other provisions of the state organic law seems to manifest a clear intent 88. Brady v. Moulton, 61 What uniformity required. Chl- Mlnn. 185. cago etc. R. Co. v. Langlade Co., 89. McGill V. State, 34 Ohio 56 Wis. 614, 622. St. 228, 239. "Town" includes city. State v. 90. "The legislature shall es- Parsons, 40 N. J. L. 1. tablish a uniform system of gov- The provision as to township ernment." Const. Fla., art. IV, organization does not Include § 21. counties. Leach v. People, 122 91. CaUfomia. Const., art. XI, 111. 420, 12 N. E. 726. I 4. 92. MoRae v. Hogan, 39 Wis. Florida. McConihe v. State, 17 f;29; State v. Dousman, 28 Wis. Fla. 238. 541; State v. Riordan, 24 Wis. Nevada. Const., art. 4, § 25; 484; State v. Supervisors, 25 Wis. Schweiss v. District Court, 23 Nev. 339; Land, etc, Co. v. Brown, 73 226; Singleton v. Eureka County, Wis. 294, 3 L. R. A. 472, 40 N. W. 22 Nev. 91. 482; State v. Boyd, 19 Nev. 43. Wisconsin. Const., art. 4, § 23. 93. People v. Lake County, 33 Cal. 487. 452 Municipal Cobpobations. § 191 not only to secure uniformity in local government, but also, to prevent legislative interference in matters which concern alone the inhabitants of a given community. Legislating by a uniform rule means by one and the same unvarying standard; the legislature cannot dis- criminate between municipal corporations of the same class, or grant an indulgence to* one, which it does not grant to another standing in the same relation. A system,, in general, means a plan, arrangement, method, and when used in reference to municipal government, "it means simply rules and regulations for the organization and government of municipal corporations. Substituting this definition for the word as used in the Constitution, the mandate to the legislature is that it shall establish uniform rules and regulations for the government of municipal corporations." Hence, the conclusion: "A system of municipal government in which cities of the same class may have dissimilarity in character of organ- ization as well as different powers, is not a uniform system within the meaning of the Constitution. Uni- formity indicates consistency, resemblance, sameness, a conformity to one pattern. * * * Jn this resem- blance, in this sameness, in this conformity of each class to one pattern, consists the uniformity of the system, and this is essential to constitute a uniform system."®* When the legislature in conformity with such provision establishes a system of town and county government, substantially uniform throughout the state, the action will be viewed by the judiciary as final. In that event the courts will not review such legislative action and attempt to determine whether a more perfect and uniform sys- tem was practicable. However, where a legislative act destroys the uniformity of a system already established and in operation, the courts will not be reluctant in declaring the unconstitutionality of such aet."^ 94. McConihie v. State, 17 Fla. 95. State v. Rlordan, 24 Wis, 238, 269, 270. 484. § 192 Uniform System of Local Govbknment. 453 It should be noted here that the constitutional injunc- tion under consideration does not forbid the classifica- tion of governmental corporations for legislative purposes f^ however, it is essential that all public corpo- rations of the same class must possess the same powers and be subject to the same restrictions, for if they do not it is evident that the Constitution in the respect men- tioned is violated.*'' Perfect uniformity cannot always be obtained. It is apparent that diverse results may flow from the execu- tion of powers granted for local self-government. In such case the law is not necessarily unconstitutional, unless the same powers are not possessed by all local public corporations of the same class.®* § 192. Same subject — illustrative cases. A city tax act giving cities the option of adopting one of two methods of collecting taxes was held void, in Illinois because, in the opinion of the court, it tended to produce diversity of organization in cities, and hence special legislation.** So an act allowing salaries of officers fixed therein to take effect at different times in different counties of the state was pronounced void in California.^ Likewise, in the same state was an act relating to salaries of county officers in counties of certain classes, since it appeared that such law prevented a law of a general nature on the same subject from operating uniformily.^ An act relating to coimty aid in the construction of bridges, which recites that "this act shall not apply to the County of Grant," violates the constitutional pro- 96. Lamar v. Palmer, 18 Fla. 585; Enterprise v. State, 29 Fla. 147. 128, 10 So. 740. 97. State v. Stark, 18 Fla. 255; 99. People v. Cooper, 83 111. McConihe v. McMurray, 17 Fla. 585. 238. 1. Miller v. Kister, 68 Cal 98. In re Cleveland, 52 N. J. L. 142, 8 Pac. 813. 188, 19 Atl. 17, 7 L. R. A. 431; 2. Dougherty v. Austin, 94 Paul T. Glouchester, 50 N. J. L. Cal. 601, 29 Pac. 1092. 454 Municipal, Corporations. 193 vision exacting uniformity in town and county govern- ment.^ Likewise, does an act which attempts to take from the possession and control of the town officers in a named county a portion of tiie money raised in their towns for highway purposes, and intrust its expenditure to the county board, contrary to the general law of the state on the subject.* However, as pointed out in the section which follows, laws have been sustained which confer special powers on local officers to do specified things. § 193. "Laws of a general nature shall have a uniform operation throughout the state." Many state constitutions contain this provision, either literally or in substance.* The provision is viola- ted if the law is restrictive in its operation, that is, if it is of a general nature it must operate in all parts of the state, and not in a part or parts only.® This provision has reference only to what are termed general laws; by it valid local legislation is not forbid- den.'^ It means that general laws must operate uniformly, that is, in the same manner on all persons and things who stand in the same situation, or who stand in the same relation to the law touching the privileges and immuni- ties granted by it, or the act or acts which it forbids; it 3. state ex rel. v. Supervisors, 7 Kan. 479; Darling v. Rodgers, 62 Wis. 376. 7 Kan. 592. 4. McRae v. Hogan, 39 Wis. For purpose and history of the 529, 532. provision, see McGill v. State, 34 5. Iowa. Const., art. Ill, § 30. Ohio St. 228. Kansas. Const, art. II, § 17. 6. Costello v. Wyoming, 49 Act held not in conflict with Ohio St. 202, 30 N. E. 613. this provision. In re Greer, 58 7. People v. C. P. R. R. Co., Kan. 268, 48 Pac. 950. 43 Cal. 398, 436; State v. Covings Uniform operation. Koester v. ton, 29 Ohio St. 102; State v. Board of Com'rs. 44 Kan. 141, Judges, 21 Ohio St. 1; Cricket v. 143, 24 P9,c, 65; Com'rg. v, Miller, State, 18 Ohio St. 9; Ruffner v. Comrs., 1 Disn. (Ohio) 196. § 194 Cities with Constitutiokal Charters. 455 I does not mean that general laws must operate alike upon all subjects of legislation, or upon all citizens and per sons.® For purposes of legislation classification of persons or things or subjects or objects are authorized under this provision. Thus it may be said that laws which operate uniformly upon municipal corporations of a class complv with this constitutional provision; so a law which operates in every part of the state is general and fully harmonizes with this requirement, since it is clear that it is of uniform operation throughout the state. Laws have been sustained in Ohio which confer spe- cial powers upon county commissioners to do designated things,® as, for example, laws regulating the police force of a specified city,i° laws designating a particular method of selecting jurors in a named county," and laws regulating the compensation of local ofiicers.^^ All such laws are viewed as of a local nature, and hence do not infringe the constitutional provision which re- quires that laws of a general nature shall have uniform operation throughout the state.^* § 194, Legislative control of cities with constitutional charters. It appears that cities with constitutional charters in Missouri are not as well protected against improper legislative interference as municipal corporations or- ganized under the general incorporation laws." In view 8. Leep v. St. Louis Iron Moun- 12. Hart v. Murray, 48 Ohio St, tain Ry., 58 Ark. 407, 23 L. R. A. 605; Criekett v. State, 18 Ohio 264; Ex parte Smith, 38 Cal. 702; St. 9. In re Oberg, 21 Ore. 406, 14 L. 13. State v. Ferris, 53 Ohio St. R. A. 577, 28 Pac. 130. 314, 30 L. R. A. 218. 9. Ruffner v. Comrs., 1 Bisn. 14. Constitutional charters In (Ohio) 196; Cass v. Dillon, 2 IVIissouri — cliange In position of Ohio St. 607. Supreme Court. In 1894 the Su- 10. State V. Covington, 29 Ohio preme Court of Missouri express- St. 102. ly held that § 7, art. IX of 11. McGill V. State, 34 Ohio St. the Constitution relating to the 228. I classification of cities was applt 456 Municipal Coepobations. ' § 194 of the recent decisions of that state it is entirely compe- tent for the legislature to designate a city with a con- stitutional charter by name and legislate for it instead of referring to it as a city of so many thousand inhab- itants, or to attempt any classification whatever. ^^ This rule, being the latest announcement of the Mis- souri supreme court, must be accepted as the present established doctrine, and hence, in addition to the classes of cities of legislative origin, prior and subse- quent to the adoption of the Constitution of 1875, that state has two classes of cities of constitutional origin, namely St. Louis, organized under sections 20 to 25, in- clusive, of art. IX, and Kansas City, organized under sections 16 and 17 of the same article. Two earlier cases of this court held that under the constitutional provisions (sec. 7, art. IX,) whenever the general assembly legislates for either of these cities, within its constitutional authority, in matters not of "local or municipal concern," such legislation must be by general law, applicable not only to these cities but to all others in the state which may hereafter reach a population of the designation of cities of the first class, cable to cities framing their own State ex rel. v. Mason, 153 charters and was designed to pro- Mo. 23, 52, 53, 54 S. W. 524, tect such cities from legislative cites Kansas City v. Stegmiller, , control or interference. Murnane supra, to support the proposition V. St. Louis, 123 Mo. 479, 27 S. W. that the City of St. Louis being 711. organized directly under the. Con- Other decisions of this court stitution is therefore not protect- consistently maintained this doc- ed by the provision of the Consti- trine. State ex rel. v. Field, 99 tution relating to classification of Mo. 352, 12 S.W. 872; Kansas City cities (§ 7, art. IX), but does ex rel. v. Scarritt, 127 Mo. 642, not refer to earlier decisions 652, 29 S. W. 845; St. Louis v. above given, supporting the con- Dorr, 145 Mo. 466, 46 S. W. 976, trary doctrine. 42 L. R. A. 686; Kansas City v. 15. State ex rel. v. Mason, 153 Marsh Oil Co., 140 Mo. 471, 41 S. Mo. 23, 52, 54 S. W. 524; State W. 943. ex rel. v. Mason, 155 Mo. 486, 602, In 1899 this court overruled it. 55 S. W. 636. Kansas City v. Stegmiller, 151 Mo. 189, 204, 52 S. W. 723. § 194 Cities with Constitutional Chaetees. 457 to the end that, all "shall possess the same powers and be subject to the same restrictions" as regards such legislation.^* It should be observed, however, that these cases held that this constitutional section limits the authority of the general assembly only and does not require that all cities organized under constitutional provisions "shall possess the same powers and be subject to the same re- strictions," since their municipal powers are in the first instance defined by their respective charters and need not be identical in all respects, the only limitation being that these charters shall be in harmony with the Constitu- tion and laws of the state. Such view would seem to fully harmonize the various sections of article IX relat- ing to the organization and classification of cities, and carry out the manifest policy of the Constitution. Tinder the recently announced construction, it is apparent that all legislation relating to the city as an agency of the state in government and all legislation commanded by the Constitution may be enacted by classification of population alone which is applicable to either of the cities of constitutional origin (St. Louis and Kansas City), or to cities organized by special charter prior to the adoption of the Constitution of 1875, that have not accepted the legislative classification. In other words, sec. 7, of art. IX of the Constitution applies alone to the four classes of cities provided by the legislature by ex- press command of the Constitution.^^ In referring to St. Louis the Supreme Court of the United States says: "The city is in a very just sense an ' imperium in imperio.' Its powers are self-appointed, and the reserved control existing in the general assembly does not take away this peculiar feature of its charter" — "organic law."^® While this was the original pur- 16. Murnane v. St. Louis, 123 17. See § 211 post. Mo. 479, 27 S. W. 711; St. Louis 18. St. Louis v. Western Union V. Dorr, 145 Mo. 46G, 68 Am. St. Tel. Co., 149 V. S. 465. 468. Rep. 575, 42 L. R. A. 686, 46 S. W. 976. 458 Municipal Cobpobations. ^ 195 pose, it seerils that the supreme court of Missouri, re- gards St. Louis as any other municipal corporation of the state. The rule in Colorado is that, although a muncipal cor- poration is created by constitutional amendment by a direct vote of the people, and has the power to frame its own charter, it is still a part of the state government, and is as much amenable to state control in all matters of a public, as distinguished from matters of a local character, as are other municipalities. The state has power to enact general laws operative in such local communities declaring what shall be its public policy.^® § 195. Special constitutional provision forbidding legis- lative control. The Constitution of California contains these provis- ions: "It shall be competent in all charters framed under the authority given by sections 16 to 25 inclusive of arti- cle IX and section 8 of article 11 of this Constitution, to provide in addition to those provisions allowable by this Constitution and by the laws of the state as follows: 1. For the constitution, regulation, government, and jurisdiction of police courts, and for the manner in which, the time at which, and the terms for which the judges of such courts shall be elected or appointed and for the compensation of such judges and of their clerks and attaches. 2. For the manner in which, the time at which and the term for which the members of the boards of educa- tion shall be elected or appointed, and the number which shall constitute any one of such boards. 3. For the manner in which, the time at which and the term for which the members of the board of police commissioners shall be elected and appointed and for 19. Keefe v. People, 37 Colo, are free from legislative Inter- 317, 324, 87 Pac. 791. ference in matters of local coa People V. Sours, 31 Colo. 387, 74 cern. Pac. 167, declares that such cities ij 196 Special CoNSTSTUTiONAii Pbovisions. 459 the constitution, regulation, compensation, and govern- ment of such boards and of the municipal police force. 4. For the nianner in which, the time at which and the terms for which the members of the boards of elec- tion shall be elected and appointed and for the constitu- tion, regulation, compensation and government of such boards and of their clerks and attaches and for all ex- penses incident to the holding of any election. Where a city and county government have been merged and consolidated into one municipal government it shall be also competent in any charter framed under said Section 8 of said article 11, to provide for the man- ner in which, the time at which, and the terms for which the several county officers shall be selected or appointed, for their compensation and for the number of deputies that each shall have and for the compensation payable to each of such deputies."^" § 196. Additional constitutional provisions as a remedy against improper legislative interference sug- gested. As an additional remedy against improper legislative interference with purely muncipal affairs, the constitu- tional provision relating to the classification of munici- pal corporations, which exists in most of the State Con- stitutions should provide, in substance, as follows: The legislature (or general assembly) shall provide by gen- eral laws for the organization and classification of cities and towns. The number of such classes shall not exceed ; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be sub- ject to the same restrictions ; provided, that all municipal corporations, however constituted, shall be considered municipal corporations of the class to which their re- 20. , Const. Cal. 1880, art. XI, of county ofBcers, valid. 'Martin § 8% as amended Nov. 3, 1896. v. San Francisco, 126 Cal. 404, 58 Charter provision for election Pae. 932. 460 Municipal Cobporations. § 197 spective populations may entitle them, and the provis- ions hereof shall be applicable to all such municipal corporations. The general assembly shall also make provision by general law, whereby any city, town or village existing by virtue of any special or local law, may elect to become subject to and be governed by the general laws relating to such corporation; provided that, on and after the day of all such municipal corporations shall be considered of the class to which their respective populations may entitle them, and thereafter all special charters and local laws applicable to all such municipal corporations shall be and are hereby declared to be null and void. A definition of local and special laws should also ap- pear in the organic law. The following is suggested: A local or special law relating to municipal corporations within the meaning of this Constitution is defined to be any act which affects less than all the muncipal corpo- rations of one of the classes of municipal corporations for which the Constitution provides. 3. CLASSIFICATION OF MTINICrPAL COEPOEATIONS GENERAL AND SPECIAL OR LOCAL LAWS. § 197. Classification of municipal corporations author- ized and describe-?.*^ , As mentioned elsewhere, classification of municipal corporations is authorized by State Constitutions, and some specify the number of classes, but in determining whether the constitutional provisions herein considered, forbidding local or special laws are violated, classifica- tion for legislative purposes must not evade directly or indirectly the intent of the Constitution. 21. Municipal Home Rule in Goodnow, City Gov. in U. S., ch. all its phases is discussed by 5; and by Rowe, Problems of City Goodnow, Municipal Home Rule; Government, ch. VI. § 198 Genebal and Special Laws. 461 In the New York Constitution three classes of cities are recognized. General and special laws applicable to cities are defined; the former as those which apply equally to all the cities of a class ; and the latter, as those which apply to less than all the cities of a class. This • Constitution does not forbid special legislation. When- ever a special city law is enacted it must be submitted to the local authorities affected for approval or disap- proval. If the law is disapproved a two thirds vote of both houses of the state legislature and approval by the governor is required to make the law take effect. In Pennsylvania, classification has been described to be "the grouping together for purposes of legislation of communities or public bodies, which by reason of similarity of situation, circumstances, requirements and convenience will have their public interests best sub- served by similar regulations. ' ' ^^ And in New Jersey, the test of proper classification has been announced as "a grouping of objects having characteristics sufficiently marked and distinguished to make them a class by them- selves, having regard to the object of the legislation." ^^ Further definition and description of classification ap- pear in the sections which follow. § 198. "General law," "public law," "special law," and "local law" defined and distinguished. The terms "general law" and "public law" are fre- quently used synonymously, but they are not the equiva- lent of each other. Every general law is necessarily a public law, but every public law, as usually defined, is not a general law. For example, a general law, as used in the Alabama Constitution, is a law which operates throughout the state, alike upon all the people, or upon all people or subjects, objects or things of a class. Any law affecting the public within the limits of a named county, or community, would be a public law, though not 22. Com. V. Gilllgan, 195 Pa. 23. Fitzgerald v. New Bruns- St. 504, 509, 46 Atl. 124. wich, 47 N. J. L. 479, 482. 462 Municipal Coepoeations. § 198 a general law within the meaning of the Alabama Con- stitution. In that state a public law operates upon the public within the limits of a locality less than the whole state.2* General law. The controlling rule, as announced many years ago (1875) in a Pennsylvania case,^^ that a "stat- ute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special," has been quoted often approvingly.** Likewise, the general observation has been made frequently by courts that a legislative act which applies to and embraces all persons, who are or may come into like situations and circumstances is a general law.^^ So it has been declared that a law is general "when its provisions apply to all objects of legislation, distin- guished alike by qualities and attributes which necessi- tate the legislation, or to which the enactment, has mani- fest relation. Such law must embrace all and exclude none whose conditions and wants render such legislation equally necessary or appropriate to them as a class. ' ' ^* In California it is said that a law is of a general nature where it affects the whole of a class of persons or things.^® It thus appears that in this view a general law and laws of a general nature have substantially the same signification. 24. Holt V, Birmingham, 111 56 N. J. Eq. 649, 655, 39 Atl. 539. Ala. 369, 372, 373. Ohio. Walker v. Cincinnati, 21 25. Wheeler v. Philadelphia, 77 Ohio St. 14. Pa. St. 338. Oklahoma. Gay v. Thomas, 5 26. Missouri. Hammon v. Cen- Okla. 1, 27, 46 Pac. 578. tral Coal and Coke Co., 156 Mo. 27. Humes v. Mo. Pac. Ry. Co., 232, 241, 56 S. W. 1091; Ewing v. 82 Mo. 221; Phillips v. Mo. Pac. HoUitzelle, 85 Mo. 64, 75; Lynch Ry., 86 Mo. 540. V. Murphy, 119 Mo. 163, 24 S. W. 28. Randolph v. Wood, 49 N. J. 774; State ex rel. v. Telle, 71 Mo. L. 85, 88. 1. c. 650. 29. Brooks v. Hyde, 37 Cal. New Jersey. Schmalz v. Wooley, 366. § 199 General and Special Laws. 463 § 199. Same subject. Special or local acts, as a rule, are not defined in con- stitutions. As mentioned ^^'' the Constitution of New' York specifically defines a special act. Such act is said to be an act affecting less than all the cities of one of the classes of cities for which the Constitution provides. This, in effect, is the doctrine which generally prevails.^" In New Jersey it is said that the question whether any particular statute is local or special must be determined not upon its compliance with legislative classification, but upon whether, having regard to the character of the legislation and the limitations upon it contained in the act, the statute is or is not a general law.*^ Again, a law is special or local, as contra-distinguished from gen- eral in the sense of the prohibition clause in this para- graph of the Constitution, which embraces less than the entire class of persons or places to whose condition such legislation would be necessary or appropriate, having regard to the purpose for which such legislation is de- signed. For example, to employ the language of the New Jersey court: "A law which so particularizes, and, by such means, is restricted in its operation to persons or places which do not comprise all the objects which naturally belong to the class, is special or local, within the meaning of the constitutional interdict."** It is sometimes said that special laws are those made for individual cases, or for less than a class requiring laws appropriate to its peculiar condition and circum- stances.*^ To illustrate, a corporation formed under a 29a. § 197, ante. ander t. Elizabeth, 56 N. J. L. 71, 30. Murnane v. St. Louis, 123 80, 81, 23 L. R. A. 525. Mo. 479, 27 S. W. 711; St. Louis 33. Vermont Loan & Trust Co. V. Dorr, 145 Mo. 466, 46 S. W. v. Whlthed, 2 N. D. 82, 93, 49 N. 711, 42 L. R. A. 686; Goodnow, W. 318; Guthrie Daily Leader v. Home Rule, p. 63. Cameron, 3 Okla. 677, 690, 41 Pac, 31. Wanser v. Hoos, 60 N. J. L. 635; Maxwell v. Tillamook Co., 20 482, 64 Am. St. Rep. 600. Ore. 495, 501, 26 Pac. 803; South- 32. State v. Somers Point, 52 erland, Stat. Const., § 127. N. J. L. 32, 34, approved in Alex- 464 Municipal Cobpoeations. § 199 charter passed for no other purpose than its creation is organized under a special act'.^* The terms "local law" and "special law" have been held to be synonymous, and mean a laiw which applies only to a particular locality.^® However, it has been de- clared that a law may be special and not local, or it may be local and not special.*^ * A local law is one relating, belonging or confined to a particular class, as distinguished from general, personal or transitory. Thus, in Oregon, a law which applies only to a limited part of the state and the inhabitants of that part, is said to be local. A local act may be public or private, and it is frequently treated as public when it concerns the public generally, though restricted in its operation to a local community. A special statute is defined in Oregon to be, "one that is only applicable to particular individuals or things. "^'^ At common law statutes were classified as public or general, and private or special. "A general or public act is an universal rule that regards the whole com- munity. * * * Special or private acts are rather ex- ceptions than rules, being those which only operate upon particular persons and private concerns. ' ' ** 34. Sargent v. Union School "Public" or "general" as ap- Dist., 63 N. H. 528, 529, 2 Atl. 641. plied to statutes, held convertible 35. Smith v. Grayson Co., 18 terms. Likewise, "private" or Tex. Civ. App. 153, 155, 44 S. W. "special." Youngs v. Hall, 9 Nev. 921; Lastro v. State, 3 Tex. App. 212, 219. 363, 365. 37. Maxwell v. Tillamook Co., 36. Iowa. McGregor v. Baylies, 20 Oreg. 495, 26 Pac. 803. 19 la. 43, 47. 38. 1 Bl. Com. 86. Maryland. Webster v. County General and special laws dis- Court, 29 Md. 516. tinguished. Scott v. Willson, 3 N. New YorTc. People v. Hills, 35 H. 321; Heridla v. Ayres, 12 Pick. N. Y. 449; People v. O'Brien, 38 (Mass.) 334; Burnham v. Web- N. Y. 193. ster, 5 Mass. 265; Pierce v. Kim- Nevada. Youngs v. Hall, 9 Nev. ball, 9 Me. 54; Hingle v. State, 212, 222. 24 Ind. 28; Toledo, etc. Ry. Co. V. Nordyke, 27 Ind. 95. § 200 General and Special Laws. 465 At common law "private laws" and "special laws" were convertible terms.^* § 200. Tests to distinguish general from special or local law. In order to constitute a law general within the mean- ing of that term touching proper classification, as herein considered, to employ the direct language of the supreme court of Missouri, "there must be some distinguishing peculiarity which gives rise to a necessity for the law as to the designated class. A mere classification for the purpose of legislation without regard to such necessity is simply special legislation of the most pernicious char- acter and is condemned by the Constitution. Mere differ- ences which would serve for a basis of classification for some purposes, amount to nothing in a classification for legislative purposes, unless such differences are of a character as, in the nature of things, to call for and de- mand separate laws and regulations. ' ' *° Judicial decisions uniformily declared that the classifi- cation of cities and towns must be based on a rational difference of situation or condition found in the munici- palities placed in the different classes;*^ that the basis of classification must have some reasonable relation to the purposes and objects to be attained by the legisla- tion and in some rational degree account for the various provisions of the enactment.*^ Therefore, it by no means follows that a law is general because it operates upon all within a class. As expressed in a California decision: "It is still special if it applies to all within a class, without reason appearing why it is not made to apply generally to all."** 39. MaxweU v. Tillamook Co., Wilmette, 230 111. 80, 87, 82 N. E. 20 Ore. 495, 26 Pac. 803; Allen 615. V. Hirsch, 8 Ore. 412, 415. 42. L'Hote v. Milford, 212 111. 40. State ex rel. v. Miller, 100 418, 423, 72 N. E. 399. Mo. 1. c. 448, 449, 13 S. W. 677. 43. Rauer v. Williams, 118 Cal. 41. Northwestern University v. 1. c. 408, 50 Pac. 691. 1 McQ.— 30 466 Municipal Cobpobations. § 200 Hence, it is clear, that, in accordance with the prevail- ing judicial view, mere form of legislation without re- gard to its operation will not suffice to relieve it of its special or local character, because, "if in its practical operation it can only apply to particular persons or things of a, class, then it will be a special or local law, however carefully its character may be concealed by form .of words."** In a word, the enactment must be for the purpose of meeting requirements of cities of the specified population, and not merely to evade the consti- tutional prohibition.*^ Legislation providing for the construction of drive- ways upon the beach may be based upon location upon the seashore.*' Often the test has been applied judicially that, if municipal corporations of a like nature are excluded from ever coming within the class provided for or created by the law, it is bad classification, or rather no classification at all.*^ So, the rule has Iseen enforced that, if the duration of time in which the act is to oper- ate is made so short as to render it impossible for other municipal corporations to acquire the necessary popula- 44. Dunne v. K. C. Cable Ry. IJew Jersey. State v. Trenton, Co., 131 Mo. 1. c. 5, 32 S. W. 641; 54 N. J. L. 444, 24 Atl. 478; Zeigler Murnane v. St. Louis, 123 Mo. 479, v. Gaddls, 44 N. J. L. 363. 491, 27 S. W. 711. North Dakota. Edmonds v. Her- 45. State ex rel. v. Herrmann, brandson, 2 N. D. 270. 75 Mo. 340; State v. Cooley, 56 Ohio. State v. Mitchell, 31 Ohio Minn. 540; Edwards v. Herbrand- St. 592; State v. Anderson, 44 son, 2 N. D. 270, 14 L. E, A. 725. Ohio St. 247; State v. Smith. 48 46. State v. Wright, 54 N. J. L. Ohio St. 211. 26 N. E. 1069; State 130, 23 Atl. 117; Anderson v. v. Pugh, 43 Ohio St. 98; State v. Trenton, 42 N. J. L. 486. Ellet, . 47 Ohio St. 90, 23 N. B. 47. Dakota. Adams v. Smith, 931. 6 Dak. 94. , Tennessee. Malone v. Williams, Minnesota. Nichols v. Walter, 118 Tenn. 390, 103 S. W. 798; 37 Minn. 264. Weaver v. Davidson Co.. 104 Tenn. Nevada. State v. Boyd, 19 Nev. 315, 59 S. W. 1105; Woodard v. 43. Brlen. 14 Lea (Tenn.) 521. § 201 Gbneeai, and SpEciAXi Laws. 467 tion prescribed (where the classification adopted is based on population), it is unconstitutional.** § 201. Same subject. The determination of proper classification proceeds from a consideration both of the purposes of the act and the subjects or objects upon which it is intended to op- erate. The characteristic made the basis of the classifi- cation must, in some reasonable degree, justify the par- ticular legislation attempted, and render it appropriate to the municipalities affected, while it would be inappro- priate to others.** "If these objects are distinguished from others by characteristics evincing a peculiar relation to the legis- lative purpose, and showing the legislation to be reason- ably appropriate to the former and inappropriate to the latter, the object will be considered, as respects such legislation, to be a class of themselves, and legislation affecting such class to be general. But if the char- acteristics used to distinguish the objects to which the legislation applies from others are not germane to, the legislative purpose, or do not indicate some reasonable appropriateness in its application, or if objects with sim- ilar characteristics and like relation to the legislative purpose have been excluded from the operation of the law, then the classification would be incomplete and faulty, and the legislation not general, but local or special.'""' 48. Devine v. Cook Co., 84 111. which do not arise from sub- 590. Etantial differences — differences Examine Topeka v. Gillette, 32 so marked as to call for separate Kan. 431, and People v. Wright, legislation — constitute no ground 70 111. 388. for supporting such legislation." 49. State V. Trenton, 54 N. J. Hammer v. State, 44 N. J. L. 667, L. 444, 22 Atl. 478. 670; Ross v. Winsor, 48 N. J. L. 95. 50. Long Branch v. Sloane, 49 "The underlying principle in all N. J. L. 356, 363. cases is that all classification Tests to distinguish general with a view of legislating for the from special Isws. "Distinctions entire class separately. Is es- 468 Municipal Coepoeations. § 202 § 202. Judicial methods of testing classification. The decisions show that the courts investigate and take judicial notice of the facts surrounding the act un- der review, and will sometimes look into the facts relat- ing to its passage, notwithstanding it is general in form, but in reality special or local in its application. The effect of a statute, more than its*mere form, or wording, or phraseology, must determine its character as a public, general, special or local law. In brief, the question is, what, in the ordinary course of events, must necessarily be its operation and effect. In considering the effect of a statute courts may take judicial notice of these matters which may affect the purpose, operation, validity or meaning of the law, and whether the basis of classification adopted has relation to some legitimate purpose of the legislation.^^ To illus- trate: For this purpose, judicial notice will be taken of the class to which the municipal corporation belongs, and of its population, as shown by the census.^^ So courts may take judicial notice of the census returns, of the general history of the country, "of what the members of the legislature ought to know when passing the stat- sentially unconstitutional, unless mark the objects so designated as a necessity, therefore exists — a peculiarly requiring exclusive leg- necessity springing from raanlfest islation. There must be substan- peculiaritles, clearly distinguish- tial distinctions, having reference ing those of one class from each to the subject-matter of the pro- of the other classes, and Impera- posed legislation, between the ob- tively demanding legislation for jects or places embraced in such each class, separately, that would legislation and the objects and be useless and detrimental to the places excluded." State v. Ham- others.' Laws exacted in pursu- mer, 42 N. J. L. 435. arce of such classification and 51. Division of Howard Court, for such purposes are,' properly 15 Kan. 194. speaking, neither local nor spe- 52. State ex rel. v. Wofford, cial." Ayar's Appeal, 122 Pa. St 121 Mo. 61, 71, 25 S. W. 851; 266, 2 L. R. A. 577. State ex rel. v. Marion County, "The characteristics which 128 Mo. 427, 30 S. W. 103; State serve as the basis of classification v Downes, 60 Kan. 788, 57 Pao. must be of such a nature as to SGI. § 203 Method of Testing Classieication. 469 ute whicli the courts are called upon to construe; and, indeed of what all well-informed persons ought to know."^^ In a word, to repeat, the judiciary will go beyond the mere form of the enactment in order to de- termine its real character.^* A law may relate to a subject-matter, which is general while the purpose of the act may be special and local. For example, it has been ruled in Ohio that a special school district may be established within the limits of a township without infringing the constitutional pro- vision under consideration, notwithstanding the subject of common schools is of a general nature.^^ § 203. Same subject. It has been laid down often as a general proposition that, particular subjects may be properly dealt with by laws applying to all that fall within their purview.^* In the opinion of the supreme court of Missouri, "Classifica- tion of this sort is natural and reasonable, and properly belongs to the exercise of legislative discretion. It is only when the classification adopted carries on its face the proof that it is a mere cover for legislation intended to be special or local that the courts are warranted in declaring it void." Thus an act, providing in general terms that it shall apply to certain designated cities which have or may have hereafter a specified population, but which recites that the special tax (the subject of leg- islation) shall be "levied, collected and paid in the manner now provided by law or charter of such cities," etc., was held void, the court saying, "the peculiar lan- 53. Topeka v. Gillette, 32 Kan. App. 424; Durant v. Mining Co., 431, 437, 23 Am. L,. Reg. (N. S.) 97 Mo. 62. 778, with note. See State ex Inf. v. Fleming, 54. State v. Ellet, 47 Ohio !?t. 147 Mo. 1, 12, 13, and dissenting 90, 23 N. E. 931. opinion of Sherwood, J., in Kan- 55. State v. Shearer, 46 Ohio sas City v. Bacon, 147 Mo. 259, St. 275, 20 N. E. 335, overruling 313, et seq.; Perkins v. Railroad, State V. Powers, 38 Ohio St. 54. 103 Mo. 52, 56; Equitable &c., 56. Luther v. Saylor, 8 Mo. Society v. Clements, 140 U. S. 226. 470 Municipal, Coepoeations. § 203 guage is the sligM blemish in the veneering which discloses the real character of the material forming the substance of the act. It makes plain the purpose in view."^^ So an act providing that "where two cities are contiguous and in the same county, the smaller may be annexed to the larger," and providing for the division of such enlarged cities into municipal subdivisions, etc., was held special in Pennsylvania since the court, de- clining to be less informed than the average individual, took judicial notice of the fact that the only two cities in the state that are contiguous and in the same county are the cities of Pittsburg and Allegheny. The act can only have special application to these cities and no others in the state.^* The observation of the supreme court of Pennsyl- vania should be noted here. That court once remarked: "While a classification which permanently excludes even one member of the class from its future operation is unconstitutional the fact that existing exceptions are not immediately abolished does not destroy the constitu- tionality of the act."^» As stated in an Ohio case, "A law may be general and concern matters purely local or special in their nature, or may be local or special and relate to a matter that may be made the subject of a general law." The view of that court is that this not only rests upon sound reason, but is well supported by authority.^" However, this same court in a later case said, "The local statute must be upon a subject in its nature local as well as local in its opera- tion."" 57. Murnane v. St. Louis, 123 60. McGill v. State, 34 Ohio St. Mo. 479. 493, 494, 27 S. W. 711. 228. 58. Sample v. Pittsburg, 212 61. State v. EUet, 47 Ohio St. Pa. St. 533, 62 Atl. 201. 90, 23 N.E. 931. 59. Com. V. Heller, 219 Pa. St 65, 69, 67 AU. 925. § 204 Classification by Population. 471 § 204. Population as a basis for classification. Classification by population, and legislation applica- ble to such classification, has often been sustained where a substantial reason appears for such classification.*'^ It is obvious that the requirements of large cities differ materially from those of small cities, towns, villages, or hamlets. A much more complex form of government is necessary in the former than in the latter.®* Courts have declared time and time again that popu- lation and not geographical distinctions should control the classification; because geographical conditions are permanent, and hence, any act which at the beginning of its application is special in character must always remain so. This is, in substance, the view expressed in a Pennsylvania case, wherein it is said that "this is classification run mad. " " The moment we resort to geo- ^ graphical distinctions," the court argues, "we enter the domain of special legislation, for the reason that such classification operates upon certain cities and counties to the perpetual exclusion of all others. * * * That is not classification which merely designates one county in the commonwealth, and contains no provision by which any other county may by reason of its increase of population in the future come within one class."®* 62. Iowa. OTfen v. Sioux City, Missouri. Rutherford v. Hamil- 91 la. 190. ton, 97 Mo. 543, 11 S. W. 249; New Jersey. In re Haynea, 54 State v. Miller, 100 Mo. 439, 13 N. J. L. 6; In re Passaic, 54 N. S. W. 677; State v. Tolle, 71 Mo. J. L. 156, 23 Atl. 517; State v. 645. Wood, 49 N. J. L. 85, 7 Atl. Rep. New Jersey. Warner v. Hoag- 286. land, 51 N. J. L. 62, 16 Atl. 166; Ohio: Welker v. Potter, 18 Matheson v. Caminade, 55 N. J. Ohio St. 85. L- 4; Rutgers v. New Brunswick, 63. California. People v. Hen- 42 N. J. L. 51. shaw, 76 Cal. 436, 18 Pac. 413. 64. Commonwealth v. Fatten. Illinois. Knickerbocker v. Peo- 88 Pa. St. 258, per Paxson, J., pie, 102 111. 218. Scowden's Appeal, 96 Pa. St.'422. Kansas. Neosho County Comrs., V. Leahy, 24 Kan. 54. 472 Municipal Coepoeations. ^ 205 Accordingly, courts have declared that classification even by population, "designed to operate in the present and on an existing state of facts," and not in the future, is unconstitutional, although several localities or cities fall within the class referred to by the act.®^ Moreover, as indicated above, a sound and sufficient reason must appear for the classification, although based on population. Thus, it has been ruled in New Jersey that a statute granting to cities of the third class author- ity to lease their wharves is void because local or special. The basis of the decision is that population cannot have any just reference to this distinction between classes of cities by which one is separated from the others. There is no natural connection between the number of people in a city and its right to lease its wharves. There seems to be no reason why all cities should not have the power to lease their wharves as well as cities of the third class.** So population is not a proper basis of classification for legislation authorizing a bond issue to pay a floating debt, since the purpose of the law has no natural rela- tion to the basis of classification adopted.*'^ However, population is a proper basis for classification in the en- actment of laws creating commissions, boards or bodies to manage streets and public water works for large cities.** § 205. Act applicable to one city or object only. If the classification is a proper one the law will not be declared special or local, although at the time of its 65. Illinois. Devine v. Cook New Jersey. Freeholders v. County, 84 111. 590. Buck, 49 N. J. L. 228. Kansas. Topeka v. Gillette, 32 Pennsylvania. McCarthy v. Kan. 431. Com., 110 Pa. St. 243. Missouri. State ex rel. v. Herr- 66. Oliver v. Burlington, 75 N. mann, 75 Mo. 340; State ex rel. J. L. 227, 67 Atl. 43. V. Jackson County, 89 Mo. 237; 67. Anderson v. Trenton, 42 N. Murnane v. St. Ix)uis, 123 Mo. 1. c. J. L. 486. 494, 27 S. W. 711. 68. In re Haynes, 54 N. J. L. 6. §205 Law Applicable to One City. 473 passage only one city or object falls within the class for which the act is designed, provided, however, that the statute has such a prospective application as to include benefits or powers conferred by it, or which was intended to apply, and can in all substantial particulars, apply to other cities as they become possessed of the requisite population or other qualification adopted as the basis of the classification.^^ The general principle applicable may be stated thus: If the law is made to operate upon a particular condition as to persons or property, and is operative whenever and 69. Colorado. Darrow v. Peo- ple, 8 Colo. 417, 8 Pac. 61]!; Mc- Inernly v. Denver, 17 Colo. 302, 29 Pac. 516. Florida. Ex parte Wells, 21 Fla. 280. Illinois. Cummings v. Chicago, 144 111. 563, 33 N.' E. 854. Iowa. Tuttle v. Polk, '92 Iowa 433. Kansas. Parker Washington Co. V. Kansas City, 73 Kan. 722, 85 Pac. 781. Missouri. Dunne v. K. C. Cable Ry. Co., 131 Mo. 1. c. 6, 32 S. W. 641; State ex rel. v. Miller, 100 Mo. 439, 13 S. W. 677; State ex rel. V. Herrmann, 75 Mo. 340. Nebraslca. State ex rel. v. Ma^ lone, 74 Neb. 645, 105 N. W. 893; State T. Graham, 16 Neb. 74. Nevada. State v. Donovan, 20 Nev. 75, 15 Pac. 783; State v. Woodbury, 17 Nev. 337. New Jersey. State v. Govern, 47 N. J. L. 368, 48 N. J. L. 612, 9 Atl. 577; Van Riper v. Parsons, 40 N. J. L. 123, 20 Am. Rep. 210. Ohio. Marmet v. State, 45 Ohio St. 63; State v. Toledo, 48 Ohio St. 112, 11 L. R. A. 729; State v. Jones, 66 Ohio 453, 64 N. E. 424; State V. Beacom, 66 Ohio St. 49i; 64 N. E. 427. Pennsylvania. Com. v. Patton, 88 Pa. St. 258; Kilgore v. Magee, 85 Pa. St. 401. Applied to one county only, held general. Youngs v. Hall, 9 Nev. 212, 222; Webster v. County Com'rs, 29 Md. 516. An act designed for and appli- cable to one municipal corporation alone which takes away a large part of its. territory is special and local, and hence, unconstitutional in California. "It is an act which is intended to apply to, and by express language does apply to the city of San Diego alone, and if an act directed at and applicable to one particular named municipal corporation alone, and talking away a large part of its territory, is not special and local within the meaning of the constitution, and in violation of- the provisions of that instrument about municipal corporations, then it is difficult to Imagine an act that, for those reasons, would be unconstitu- tional." People V. San Diego, 85 C-1. 309, 373, 24 Pac. 727. 474 Municipal Corporations. § 206 wherever the same conditions exist, affixing the same consequences, then it is a general law in its operation, even though it only operates on one of the conditions or classes specified/" "Classification does not depend upon numbers. The first man, Adam, was as distinctly a class, when the breath of life was breathed into him, as at any subse- quent' period. The word is used not to designate num- bers, but a rank or order of persons or things; in society it is used to indicate equality or persons distinguished by common characteristics, as the trading class, the la- boring class; in science, it is a division or arrangement, containing the subordinate divisions of order, genus and species. "^^ . On the other hand, if the statute is necessarily re- stricted to one municipal corporation or object, and its language prevents the act from ever being applied to any other municipal corporation or object at any future time, it will be held special and void.''* § 206. Same subject — illustrative cases. It has been ruled in Illinois that an act general in its terms, applicable to all cities that then had, or might thereafter have, parks under the control of park commis- sioners (act only applied to such cities) is general and not special.''* In Ohio an act establishing a police force "in cities of the first grade of the first class" is constitutional "be- cause it applies to all cities of that class and grade in the state.''* 70. Haskel v. Burlington, 30 72. State v. Des Moines, 96 Iowa 232; Von Phul v. Hammer, Iowa 521, 65 N. W. 818, 31 L. R. A. 29 Iowa 222; United States Exp. 186. Co. V. Ellyson, 28 Iowa 370; Mo 73. , West Chicago Park Comrs. Aunich y. Mississippi & M. R. R. v. McMullen, 134 111. 170, 25 N. E. Co., 20 Iowa 338. 676. § 209 post. 74. State ex rel. v. Hudson, 44 71. Wheeler v. Phlla., 77 Pa. Ohio St. 137. St. 338. 350, per Paxson,' J. § 206 Law Applicable to One City. 475 As stated above, a law may be general and yet opera- tive in only one place, where the conditions necessary to its operation exist.' ^ Thus a law fixing the compensation of coal oil in-" spectors in cities having more than a specified number of inhabitants is not a special law merely because there is only one city in the state of the specified number of in- habitants.'* An act for the government of a fire and police depart- ment in cities of the first class having a population of over forty thousand is special. The court took judicial notice of the census returns, and therefore, of the fact that there was only one city of the state of that popula- tion, but the court said that this of itself would not be sufficient to condemn the act as special. By the terms of the act its operation was, in some particulars, limited by its own language, and in others by necessary effect, to a particular city." Classifying counties according to a minimum popula- tion, where only one county can be affected is special legislation.'* An act providing for annexation to a city is one for the incorporation of a city within the meaning of a con- stitutional provision against local or special laws for this purpose. If such act can only apply to one city in the state by reason of the specified population at a stated date it is unconstitutional'® So, in Ohio a law which designates a particular city as of a stated' population and no more is void as special.*" Likewise it has been declared judicially in Iowa that an act establishing a 75. Trausch v. Cook County, 78. Devlne v. Cook County, 84 147 111. 534, 536, 35 N. E. 477; 111. 590. People V. Hoffman, 116 111. 587; 79. State v. Des Moines, 96 People V. Criegler, 138 111. 401, 28 Iowa 521, 31 L. R. A. 186, 65 N. W. N. E. 812. 818. 76. State ex rel. v. Speed, 183 80. State ex rel. v. Anderson, Mo. 186, 201, 81 S. W. 1260. 44 Ohio St. 24 T. 77. State v. Downes, 60 Kan. 793, 57 Pac. 962. 476 Municipal Corpokations. § 207 special court in a particular town named, is local, and, hence, unconstitutional.^^ In Missouri, an act concerning notaries public, lim- ited in its application to "all cities having a population of 100,000 inhabitants or more," at the,time the act took effect, was declared void. It was held that the court would take judicial notice that the City of St. Louis was the only city in the State having such population at the time of the passage of the act, or which, by the usual in- crease of population, could be expected to have that number by the time the act should tiake effect.*^ Following the last ease, an act was held void in the same state which established a reform school "in all counties in this state in which is located a city of over fifty thousand inhabitants," since the act on its face "shows that it was designed to operate in the present, and on an existing state of facts, ' ' and can apply to only one county in the state, the court holding that judicial notice would be taken of the census returns.'*' § 207. Tests of classification— ^illustrative cases. Usually a legislative act applicable to all municipal corporations of a given class will be sustained as proper classification. That is, a statute which divides municipal corporations into classes, e. g., according to population, a sufficient reason appearing therefor, and legislation adapted to the different classes, is regarded as general in its nature, and not violative of the constitutional pro- visions against the enactment of special or local laws.** In brief, an act general in its terms and uniform in its 81. McGregor v. Baylies, 19 Illinois. People v. Hazelwood, Iowa 43. 116 111. 319, 6 N. E. 480. 82. State ex rel. v. Herrmann, Iowa. Owen v. Sioux City, 91 75 Mo. 340, overruling same case, Iowa 190. 11 Mo. App. 43. Missouri. Rutherford v. Ham- 83. State ex rel. v. Jackson ilton, 97 Mo. 543, 11 S. W. 249; County, 89 Mo. 237. Ruthford v. Heddens, 82 Mo. 388; 84. Colorado. People ex rel. v. Ex parte Swann, 96 Mo. 44. Earl, 42 Colo. 238, 94 Pac. 294. ■^ 207 Tests of Classification. 477 operation upon all persons and subject-matter in like sit- uation, is a general law.** To illustrate, statutes providing a charter for cities of the second class are not special enactments, but general laws applicable to all cities when their population brings them within the class.** Again, an act relating to elections in cities of the fourth class which applies to all cities in the state of that class is a general law and not a local or special one.*^ So, provisions in a general municipal incorpora- tion act for making and enforcing special assessments by corporations formed under the act is not special legislation.** So statutes authorizing municipal corpor- ations to appeal without giving bond, and providing that supersedeas may be granted without bond on applica- tion of such corporation, is not special legislation where the operation of the law extends to the wh'^le state.*® So a general law may change the charters of cities of a named class by permitting them to extend their limits.®" ' ' Such a change is the experimentum crucis of what con- stitutes a general law, and distinguishes it from a local or special law. ' ' "^ In Iowa a legislative act for the annexation of terri- tory is held to be one for the incorporation of a city within the meaning of the constitution against local or special laws.®^ And where the legislature is forbidden to amend the charter of a city it cannot legalize an act of 85. Cummings v. Chicago, 144 88. Potwin v. Johnson, 108 111. 111. 563, 33 N. E. 854, distinguish- 70. Ing Devine v. Cook County, 84 111. 89, Holmes v. Mattoon, 111 111. 590. 27. 86. State v. Binswanger, 122 90. Copeland v. St. Joseph, 126 fTo. App. 78, 84, 98 S. W. 103; Wo. 417, 426, 29 S. W. 281. Dunne v, Kansas City Cable Ry. 91. State ex inf. v. Fleming, Co., 131 Mo. 1, 5, 32 S. W. 641. 147 Mo. 1, 13, 44 S. W. 758. 87. State ex inf. v. Fleming, 92. State v. Des Moines, 96 147 Mo. 1, 12, 44 S. W. 758. Iowa 521, 31 L. R. A. 186, 65 N. W. 818. 478 Municipal Cobpobations. § 208 such city not authorized by the charter for this would, in effect, constitute an amendment.®* It was ruled in Illinois that an act creating each county in the state a justice of the peace district, except Cook County, and making two districts of Cook Coimty is special legislation.** But a law applicable to all counties of a class, as made or authorized by the Constitution, is neither a local nor a special law. In brief, if the law applies to all the counties of a class authorized by the Constitution to be made it is a general law, and in the opinion of this court, "whether there may be few or many counties to which its provisions may apply is a matter of no consequence."®^ So in California it has been held that the constitutional prohibition against special law creating municipal corporations will not pre- vent a general law for municipal corporations of a par- ticular species or character (as irrigation districts) even if in the nature of things such corporations can find oc- casion for their organization in a portion of the state only.®^ The grouping together in a single act of a number of special or local laws does not constitute a general law.®'' In New Jersey the prohibition against special laws ap- plies to a law altering the ward limits of a city, changing the time of election of certain municipal officers.®* § 208. Same subject — justification for and relation of classification to purpose of the legislation. Cases illustrating the application of the test of reason- able justification for the classification invoked, and that such classification should have a direct relation to the purposes of the law, follow: 93. Independent School Wst. ▼. C6. In re Bonds Madera Irrlga/. Burlington, 60 Iowa 500; Stange tlon District, 92 Cal. 296, 14 L. R. V. Dubuque, 62 Iowa 303. A. 755, 28 Pac. 675. 94. People v. Meech, 101 111. 97. Passaic v. Stevenson, 46 N. 200. J. L. 173, 183. 95. Knickerbocker v. People ex 98. Pell v. Newark, 40 N. J. U rel., 102 111. 218. 550, 29 Am. Rep. 266. § 208 Eeason fob Classification. 479 An act, establishing in every county in the state that contains fresh-water lakes of a specified size, a system of free public fisheries in such lakes is a proper classifi- cation, since it has direct and natural reference to the purpose that gives rise to the legislation. It appears that the distinction is applied, not for the purpose of classifying counties, but only for the purpose of classify- ing lakes."' An act providing for the election of one councilman at large in cities of less than 10,000 inhabitants, divided into not less than two nor more than three wards, and which now, by law, have twelve councilmen', is a special law. In the judgment of the court, the three incidents upon which the classification is based are "too special, restrictive and unimportant * * * to give the enact- ment the quality of a general law. ' ' * An act providing for the salary of a deputy clerk in counties wherein the clerk was paid an annual salary, and where it appears that there was only one county in the state where such condition exists is unconstitu- tional as regulating the internal affairs of a county by special law.* An act providing a different method of levying taxes in boroughs which are seaside resorts or which are gov- erned by commissioners from that provided for other boroughs of the state is special. Contiguity to the sea is no reason for a different system of levying taxes.' An act, the purpose of which is to take from the com- mittee of a particular township, and confer upon the com- missioners of the borough the right of expending on the streets of the borough the road tax raised therein is a local or special law, relating to the internal concerns of the municipal government. "The whole statute by its terms, is confined to seaside resorts governed by boards 99. Albright v. Sussex Co. L. 2. Glbbs v. Morgan, 39 N. J. & P. Co., 68 N. J. L. 523, 529, Eq. 126. 530, 53 Atl. 612. 3. Alsbath v. Philbrlck, 50 N. 1. Randolph v. Wood, 49 N. J. J. L. 581, 584, 15 Atl. 579. L. 88 et seq. 7 Atl. 286. 480 Municipal Coepobations. § 208 of commissioners. The individuals thus grouped into a class by legislative enactment are distinguished from other municipalities by two features only, their being seaside resorts, and their being governed by boards of commissioners, and consequently, no legislation touch- ing this class alone is constitutional, unless it properly relates to these peculiarities. We cannot see how the section under review is so related. That the power to expend the road tax of a municipality on its streets should be vested in its own governing body, rather than in the committee of the township of which it territorially forms a part, is a proposition which seems to have no natural connection with the facts that the municipality is a seaside resort, and that its governing body is styled a board of commissioners."* An act providing that in counties, in which the fees allowed county clerks should be collected and paid over for the use of the county, whenever the population there- of exceeded sixty thousand, should have an assistant clerk to be paid by the county is special legislation regulating the internal affairs of counties. "It is obvious," re- marks the Chancellor, "that the controlling character- istic relied upon to justify the legislation is the circum- stance that the fees go to the county. ' ' The act applied to one county in the state only, as that county is the only one in which the fees are, by law, paid over to the county, and it has a population of over sixty thousand. It is clear that the legislation, on its face, is partial and not general. The act was declared unconstitutional because that which was relied upon as a distinguishing charac- teristic to justify the legislation was not of such a nature as to mark the counties possessing it as peculiarly re- quiring exclusive legislation.^ An act "that the inhabitants of any township, which is a seaside resort for summer visitors, embracing within an area not exceeding two square miles taxable property 4. Ross V. Winsor, 48 N. J. L. 5. Ernst v. Morgan, 39 N. J. 95. Eq. 391. § 208 Eeason fob Classification. 481 of the amount of one hundred thousand dollars, or more," may incorporate as a borough, whenever at an election it may be so decided by a majority of the votes of the electors of the district, is a special and local law. The court said: "The act * * * ig limited to a specified location — situation on the seashore. It is further re- stricted to places so situate which are the resort for summer visitors, and is applicable only to places within these limitations in which taxable property to an amount of $100,000, or more, is embraced within an area not to exceed two square miles." "Municipal powers and franchises such as this act confers are as appropriate to places in an inland situation as to those located on the seashore and are as suitable to localities inhabited or frequented by other individuals as to resorts for summer visitors. The act leaves popula- tion entirely out of view. * * * if taxable property irrespective of population be a proper classification on which to base a grant of municipal powers of the scope of those granted by this act, such property presents the same characteristics wherever situate, as it possesses when located in seaside places frequented by summer visitors. The law is so plainly a special and local law within the constitutional interdict that argument and citation of authorities are unnecessary."* An act authorizing any city, town or municipal divi- sion of the state in which there is situated and main- tained a race-course, to license the owners of such race- courses to maintain the same and providing a different system between those in use prior to a named date and those set up after that date is ' ' special legislation of the most palpable character and plainly within the inter- dicting provision of the Constitution against special laws regulating the internal affairs of towns and counties."'^ 6. state T. Somers Point, 52 N. 7. Alexander v. Elizabeth, 56 J L. 32. 34, 35, 6 L. R. A. 57. N. J. L. 71, 81, 82, 23 L. R. A, 625. 1 Mca— 31 482 MuNICIPAIi COBPOEATIONS. §209 § 209. Cases illustrating general laws as distinguished from special or local laws. An act enlarging the powers of mimerous mnnicipali- ties is valid under a constitutional provision inhibiting laws creating, renewing or extending the charter of more than one corporation.* A law authorizing counties to subscribe to stock of a railroad is not a local or special law.' A road or bridge law applying to all counties under township organization is not a local or special law.^" A law authorizing the people to vote on the question of the renewal of the county seat is not a "local or special" law.^^ An act authorizing the appointment of stenographic reporters "in courts exercising criminal jurisdiction in cases of felony in cities having a population of more than one hundred thousand inhabitants," was held valid, although at the time it was enacted it only applied to St. Louis, but afterwards by reason of increase of popu- lation became applicable to Kansas City, notwithstand- ing the latter city is in a county.^^ An act providing for the method of selecting jurors in counties "now containing or which may heresifter contain a city having, according to the last preceding national census, more than fifty thousand and less than three hundred thousand inhabitants," was sustained, notwithstanding that it was only applicable to two coun- ties when passed.^' Likewise, an act prescribing the number of school di- rectors in cities of over 300,000 inhabitants, etc., was sustained, although it applied to one city only, since 8. Moers v. Reading, 21 Pa. St. 11. Clarke v. Jack, 60 Ala. 271. 188. 12. State ex rel. v. Wofford, 9. Lafayette, etc., R. Co. v. 121 Mo. 61, 69, 25 S. W. 851. Gelger, 34 Ind. 185. 13. Dunne v. K. C. Cable Ry. 10. Reynolds v. Foster, 89 lU. Co., 131 Mo. 1, 6, 32 S. W. 641. 257. § 209 Q-ENBKAL AND SPECIAL LaWS DISTINGUISHED. 483 there appeared to be "a fair and reasonable necessity for a classification for legislative purposes in this respect."^* So an act regulating the mode of collecting revenue from dramshops, licenses applicable to one city only was sustained in Missouri on the authority of the last case.^" An act providing for a class of objects already pro- vided for by general law, and which extends to all objects of such class is not a local or special law in lUinois.^^ So in that state a general law permitting special assess- ments for local improvements to be divided into install- ments when so provided in advance of making such improvements, and fixing the manner of the payment of the same, etc., with the proviso that "in cities and towns containing a population of 50,000 or more, this and the following sections shall not apply except in cases where any such special assessment exceeds, in the aggregate, the sum of fifteen thousand dollars, ' ' is valid. The proviso does not make it special.^'' General laws may be and in certain cases must be en* acted which pertain to localities only. This is especially true with respect to county seats, where the Constitution forbids the legislature from passing any local bill fixing or changing county seats.^^ 14. state ex rel. v. Miller, 100 Moines, 96 Iowa 521, 59 Am. St. Mo. 439, 13 S. W. 677. To same Rep. 381. See Owen v. Baer, 154 effect State ex rel. v. Bennett, 102 Mo. 434, 55 S. W. 644. Mo. 356. Construction of constitutional 15. State ex rel. v. Bell, 119 provisions against special acts. Mo. 70, 76, 24 S. W. 765. Bonds for public buildings. De- 16. People T. Hazelwood, 116 vine v. Cook County, 84 111. 590. 111. 319, 6 N. E. 480. Taxation and local assessment. 17. Cummlngs v. Chicago, 144 State v. Philbrick, 15 Atl. 579; 111. 563, 33 N. E. 854. Gilmore v. Norton, 10 Kan. 491, 18. N. Y. Const., art. Ill, § 503; Atchison v. Bartholow, 4 18; Stanton v. Board of Super- Kan. 124. visors, 191 N. Y. 428, 435, 84 N. E. Local improvement to be paid 380. for by assessment. People v. Notes to Wanser v. Hoos, 64 Lynch, 51 Cal. 15; Schumacher v. Am. St. Rep. 615; State y. Ellet, Toberman, 56 Cal. 508. 21 Am. St. Rep. 780; State v. Des 484 Municipal Coeporations. § 210 A law regulating the police departments in all the cities of the state is general.^^ An act only applicable to cities and townships where streets have been lighted pursuant to legislative author- ity, was held special in New Jersey so far as it relates to townships.^" So in the same state is an act applicable only to counties having a county road board.^^ So an act authorizing townships not containing an incor- porated city or borough, to pave streets, etc., was ad- judged special and local.^^ § 210. Laws applicable to municipal corporations of a class. If the law can apply only to three certain cities, and cannot possibly at any future time apply to any other it is special in Kansas ; for, in the opinion of this court, an act may be special where it applies to many particular and existing persons or things, as well as when it applies to only one. Likewise, it may be special where it simply describes such particular persons or things, so that they may be known, as well as where it gives their particular names or distinctive appellations.** 19. New Brunswick v. Fitz- townships set apart for this gerald, 48 N. J. L. 457, 8 Atl. scheme of legislation." 729. 23. Topeka t. GiUette, 32 Kan. 20. Van Gieson v. Bloomfleld, 431, 436. 47 N. J. L. 442, 2 Atl. 249. Special act applying to four 21. Liodi Tp. V. State, 51 N. J. cities held unconstitutional. City L. 402, 18 Atl. 749, 6 L.. R. A. 56. of Council Grove, 20 Kan. 619. 22. Dobbins v. Northampton,, Special act applying to two 50 N. J. L. 496, 14 Atl. 587. cities declared void. State ex rel. The court said: "The classifica- v. Hammer, 42 N. J. L. (13 tion on which this act rests is a Vroom) 435. classification setting apart town- Special act applying to a large ships not having an incorporated number of notaries public, void, city or borough within the town- State ex rel. v. Herrmann, 75 Mo. ship hounds from the other town- 340. ships in this state. The subject Special act applying to several of the legislation — grading, mak- different corporations. State ex Ing aiid working roads — is one rel. v. Lawrence Bridge Co., 22 that is common to all townships Kan. 438. of this state as well as to the §511 DiviDiNQ Classes FoRBiDDEi«r, 485 In Washington an act authorizing a reincorporation of void municipal corporations, that ,is, communities which had previously undertaken to incorporate under a valid law without reference to population, or solely by rea- son of their peculiar condition, was held to be a special law. In the opinion of the court the fact that it applied to all communities in the state, similarly situated, did not render it a general law. The court reasoned: "If the operation and effect of a statute is necessarily limited to a particular class or number of persons or things it is as much a special statute, whatever may be its form, as it would be if it applied to but one person or one thing only."''* § 211. The legislature cannot divide or add classes. As mentioned elsewhere the constitutions of many states require the organization and classification of cities and towns to be provided by general laws, and frequently limit the number of classes.^^ Such provisions are de- signed to put an end to special legislation however dis- guised, in relation to the municipal powers of cities and towns that fall within the classified charters applicable to them.2» The provisions of the act must apply to all cities of the class to which they are applicable, hence under such constitutional restrictions, an act which attempts to di- vide into two classes, the cities of the first class, as, for example, giving special powers and privileges to only such cities as have or which may hereafter reach a popu- lation above that of the fixed legislative limit of this 24. Denrer v. Spokane Falls, 26. Ward v. Boyd Paving Co., 7 Wash. 226, 232. 79 Fed. 391; affirmed In 85 Fed. 25. Such, constitutional proris- 27; Rauer t. Williams, 118 Cal. ions exist in Missouri, Arkansas, 498, 50 Pac. 691; Darcy v. Mayor, Idaho, Kentucky, New York, Colo- 104 Cal. 642, 38 Pac. 500; Pasa- rado. South Dakota, Washington dena v. Stimpson, 91 Cal. 238, 27 and Wyoming. Pac. 604; Cody v. Murphey, 89 Cal. See § 197 supra, 522, 26 Pac. 1081; People v. Hen- Bhaw, 76 Cal. 436, 18 Pac. 413, 486 Municipal Corpobations. §212 class is void.*^ In other words, an a!ct in the form of a general law which by its provisions may apply to all cities that in future may reach a prescribed population higher, for instance, than that designated as cities of the first class, is unconstitutional, because it would add an- other class to the classes already^ existing and would con- fer upon some cities of the first class, on reaching the population named, municipal powers not possessed by smaller cities of the first class.^* In New Jersey it was ruled that an act which provides a complete and elaborate system of city government, both as to the structure as well as to powers conferred, and the regulation thereof, and declares that, "none of the provisions of any general or special act relative to cities in this state shall apply to' cities organized under this act, nor shall any such act hereafter enacted so apply, unless the same shall be a supplement to this act, or such future act shall by its terms be made applicable to cities incorporated under this act," creates of itself a classifi- cation of cities obnoxious to the mandate of the Con- stitution."' § 212. Special or local laws to take effect on event of future contingency or within limited time. In Pennsylvania it has been decided that, under the Constitution forbidding local or special laws regulating the affairs of cities, towns and villages, a law made to take effect only when adopted by a vote of the local com- munity is unconstitutional, because the law will be lim- ited to one or more local corporations that vote to accept it, and, hence, this renders it special or local. The doC' trine is thus stated by the court: "All our decisions are 27. Murnane v. St. Louis, 123 See Worcester Natl. Bank v. Mo. 479, 27 S. W. 711. Cheney, 94 111. 430; Denman v. 28. St. Louis V. Dorr, 145 Mo. Broderick, 111 Cal. 96, 43 Pae. 466, 475, 68 Am. St. Rep. 575, 42 516. L. R. A. 686, 46 S. W. 976. 29. Atty. Gen. v. Dover, 62 N. But see i 194 supra. J. L. 40, 40 Atl. 640. § 212 FUTUBE CoNTINGEISrCY. 487 to the effect that if local results either are, or may be, produced by a piece of legislation, it offends against this provision of the Constitution and is void." '" In New Jersey Chief Justice Bearsley announced a con- trarj' rule, when he held that a statute giving to mayors of all cities in the state power to appoint the principal municipal ofBcers and providing that such act should go into effect in such cities wherein it was accepted at a popular election is not special but general.*^ The chief justice expressed the opinion that there is no prohibition in the Constitution against the enactment of a general law which may, by possibility, produce local results; that the effect which may result from a statute is not a test of its constitutionality, if at the time of its enactment it is capable of general application. He reasons : "In every statute conferring franchises upon these public bodies to be used or not used at will, there is a potentiality that the result will be variant in different localities. A power to borrow money for a pub- lic purpose might be resorted to in some places and not in others, and hence dissimilar local results would be produced. Under the rule as claimed it would be difficult to justify the grant to these municipalities of the pre- rogative of local legislation, as the obvious result is that no two localities will be subject to the same code of local laws. It seems to be manifest that a general law may, under same circumstances, produce a result local or special, but we find no constitutional inhibition against such legislation. If an act, from its inherent force and scope, must necessarily produce a local and not a general result, or if it be illusively contrived for that purpose, it will fall under constitutional condemnation; and this is the standard that has been applied by the courts of 30. Appeal of Scranton School Compare Reading v. Savage, 124 District, 113 Pa. St. 176, 190, fol- Pa. St. 328. lowed In Com. v. Denworth, 145 31. In re Cleveland, 51 N. J. L. Pa. St. 172, 178, 22 Atl. 820, and 319, 17 Atl. 772, declining to fol- Frost v. Cherry, 122 Pa. St. 417, low Appeal of Scranton School 427 15 Atl. 782. District, H3 Pa. St. 176, 16 Atl. 788. 488 MuNiorPAL Coepobations. § 212 this state. * * * If an act be framed for a general purpose, and whicli is calculated to effect that end, such statute will not be unconstitutional for the reason that, in its execution, its entire object may not be effectuated. "And from this principle it follows, as an unavoidable corollary, that the limitation in point of time for the adoption of the privileges of this law, cannot be regarded as an invalidating circumstance. The statutory lan- guage in this respect is, that no election shall be held under its provisions after the first day of October, 1890. It is true, that this provision may eventuate in the pro- duction of different local results, but such outcome is not the necessary effect of the law, and there is no indi- cation that such an end was in view. This law is capable of coming into operation within the time prescribed, in every city in the state ; it is, therefore, within the mean- ing of the Constitution, a general and not a local act, for, as has been just said, it must be regarded either as general or special at the time of its enactment, and it is not to be ranked in the former class by reason of the fact of its subsequent general adoption, nor in the latter case because of its partial rejection."*^ This case was affirmed by the New Jersey Court of Errors and Appeals,*' but the validity of the limitation was not passed upon. Subsequently the New Jersey court declared unconsti- tutional an act providing for the creation of a district court ' ' in every city of this state having twenty thousand inhabitants or less which shall by the resolution of the city council adopt this act within three months from the 32. In re Cleveland, 51 N. J. popular election or by the popular L. 319, 322, 323, 17 Atl. 742, ap- elective branch of the municipal proved in De Hart v. Atlantic government. Paterson v. Society, City, '62 N. J. L. 586, 43 Atl. 742. 24 N. J. L. 385; State v. Morris It seems that In New Jersey it Pleas, 36 N. J. L. (Vroom) 72; is established law that an act Warner v. Hoagland, 51 N. J. L. granting municipal powers may be (Vroom) 62; Paul v. Gloucester enacted to take effect only on County, 50 N. J. L. (Vroom) 585. acceptance thereof by the people 33. 23 N. J. L. (Vroom) 188. of the municipality, either by a § 212 FXJTUEB CONTINGENOT. 489 date of tlie passage thereof," because of the limitation as to time, the chancellor saying, "I conceive the error in the reasoning of the Chief Justice (as above set out) to be in his failure to recognize that the application of a valid general law must not he restricted beyond the rea- sonable relation of the restriction to the purpose of the law, for the restriction may necessarily become a char- acteristic of the classification. In the present case it is clearly so, and, because of it, it is concluded that the enactment considered is invalid."^* Tested by this principle, if the operation of an act is expressly limited to the cities of the class to which it is made applicable which adopt its provisions at the munic- ipal election held next after its passage, it is special in New Jersey, and, therefore, if it seeks to regulate the internal affairs of cities, unconstitutional.*^ So, is an act which limits its operation to the cities that adopt its provisions within one year after its passage.*^ In the above cases, the laws were condemned because the clas- sification attempted was defeated by a limitation in time that excluded from the operation of the laws objects which possessed, or, in the natural course of things, would possess, all the substantial elements of a constitutional classification. , If the act is directory with respect to the time of its submission for adoption or rejection it will be sustained in New Jersey.*^ , In Illinois the doctrine has been declared that an act providing that it shall take effect only in such munici- 34. De Hart v. Atlantic City, J. L. 488, 45 Atl. 817, following 63 N. J. L. 223, 227, 43 Atl. 742, De Hart v. Atlantic City, 63 N. J. overruling 62 N. J. L. 586. L. 223, 43 Atl. 742; Renner v. 35. Christie v. Bayonne, 64 N. Holmes, 68 N. J. L. 192. J. L. 191, 44 Atl. 887, foUowing 37. Albright v. Sussex Co. I>ake De Hart v. Atlantic City, 63 N. J. & P. Com., 68 N. J. L. 523, 53 Atl. L. 223, 43 Atl. 742. 612, reviewing prior New Jersey 36. Ross V. Passaic City, 64 N. cases fully. 490 Municipal Coepobations. §212 palities as may adopt it by vote is not a local or special law.38 Concerning the question whether the legislature may ' delegate the option of acceptance of a law — here one providing for a civil service commission — to the govern- ing body of the municipality, instead of the voters there- of, the Court of Errors and Appeals of New Jersey, in a recent decision, replied in the negative.^* 38. People v. Hoffman, 116 111. 587, 5 N. E. 596; Home Ins. Co. V. Swlgert, 104 111. 653. Compare People v. Cooper, 83 111. 585. 39. Law to take, effect when adopted by governing body or the people. The law provided that "Any municipality of this state may adopt the provisions of this act by ordinance duly adopt- ed by the governing body of such municipality or by the petition and vote of the qualified voters of such municipality as herein- after provided." Another section provided the method of taking such popular vote, and declared how the adop- tion of the act should be certified to the civil service commission, but made no provision as to the effect of its failure of adoption, i. e., no afiBrmative irower of rejec- tion was given. The court said: "The act there- fore may be adopted by the gov- erning body without submitting the question to popular vote, or the act may upon proper pro- cedure be so submitted, and If it fail of adoption by the electors, be then adopted by the governing body; in other words, the failure of either one of these two desig- nated bodies to adopt the act does not prevent its adoption by the other. This is not a double ref- erendum such as was upheld by this court in Noonan v. Hudson Co., 52 N. J. Law 398, 20 Atl. 255, but an alternative referendum ^o which such decision has no ap- plication. The difference is mani- fest. A double referendum, by providing for a popular election after the affirmative action upon the same matter of the govern- ing body, requires the concurrent affirmation of both bodies; that of the voters being a sine qua non to the adoption of the act. The alternative referendum, on the contrary, by providing for the adoption of the act, either by the governing body, or by the voters, not only requires no concurrent affirmation to which the popular voice is essential, but permits the adoption of the act by the action of the governing body notwith- standing that it had failed of adoption by the people at the polls." "This feature alone would seem to stultify the referendum provis- ion of the act, for the reason that the sole argument and justifica- tion for the submission of the adoption of a statute to the gov- erning body of a municipality Is the presumption of the represen- §212 FuTUEB Contingency. 491 The court stated that it was evident that the question presented for decision was a part of a larger question, namely, whether a legislative enactment that takes effect, not at the will of the legislature but at the will of some- body else, is a constitutional enactment. The court also stated that the question, in so far as the submission of the adoption of charters or their sup- plements to popular vote is concerned, is entirely at rest in New Jersey.*" The court divides laws of this character into two classes, namely, first, a statute which is a complete legis- lative enactment' requiring only acceptance to incorpo- rate its provisions in the scheme of local government; and, second, a statute which delegates legislative powers to be exercised (or not) by the local government. This distinction inheres in the statutes themselves, and is essential to the harmony of the decisions. The first the tative character of such body in statute that is enacted to take ef- this respect. When therefore such feet upon its adoption by the gov- governing body is invested with erning body of the municipality power to adopt a statute, after it to be affected by it." Booth v. has failed of adoption by the peo- McGuinness (Court of Errors and pie, such governing body is, in Appeals, N. J., Feb. 4, 1910), 80 effect, clothed with authority to N. J. L. — . 75 Atl. 455, 464. adopt the new law notwithstand- 40. Concerning the leading New ing that it demonstrably appears Jersey case on this iroint — Pater- that it is not in this regard rep- son v. Society, 24 N. J. L. 385 — resentative of the will of the peo- the court said that this case "has pie whose local government Is to been over and over again cited in be so changed. For such a mode this court with uniform and un- of changing local governments it qualified approval, and what is Is not perceived that there can more to the point has been fol- be either justification or argu- lowed in a long line of cases in ment. This phase of the subject which statutes thus affecting local need not, however, be further pur- government have been enacted to sued, for the reason that the ques- take effect upon their acceptance tion propounded to counsel and by the electors of the districts im- considered by the court goes di- mediately affected." Booth v. Mc- rectly to the fundamental question Guinness (Ct. Errors and Ap- as to the constitutionality of a peals), 80 N. J. L. — , 75 Atl. 455. 492 MuNicrPAii Corpoeations. § 213 court characterizes as "referendum statutes,"*^ and the second as "statutes delegating legislative power. "*^ After fully reviewing the New Jersey cases, the court . concludes that a statute in the nature of "a supplemental municipal charter to take effect on its adoption by the law maHng body of the municipality is not a constitu- tionally enacted law. " ** § 213. Same — ^local option laws. In many states statutes exist permitting the inhabi- tants of local communities to elect between different sys- tems of police regulation, or different forms of local gov- ernment. It is evident that such laws have a tendency to prevent general laws from having a uniform operation throughout the state, and to destroy a uniform system of local government. Concerning such laws, as mentioned in the next pre- ceding section, the view is taken in some states that these matters are not affected by the restrictions touching local and special laws in those cases wherein the local com- munities of the same class have the same option.** However, in Florida the rule has been declared to be that "the government of eachclass must be the same, 41. "Referendum statutes." 43. Booth v. McGuinness (Court Warner v. Hoagland, 51 N. J. L. of Errors and Appeals, N. J. Feb. 63, 16 Atl. 166; In re Cleveland, 4, 1910), 80 N. J. L. — , 75 Atl. 455, 51 N. J. L. 319, 18 Atl. 67, s. c. 464 to 467, overruling on this point on error, 52 N. J. L. 188, 19 Atl. De Hart v. Atlantic City, 62 N J. 17, 7 L. R. A. 431; Kennedy v. L. 587, 41 Atl. 687. Belmar, 61 N. J. L. 20, 38 Atl. Compare the following cases on 756; Allison v. Corker,-67 N. J. L. the same point: Riley v. Trenton, 596, 52 Atl. 362, 60 L. R. A. 564. 51 N. J. L. 498, 18 Atl. 116, 5 L. R. 42. Laws delegating legisla- A. 352, and Schwarz v. Dover, 70 tive power. Sanford v. Morris N. J. L. 502, 57 Atl. 397, 72 N. Pleas, 36 N. J. L.. 72; Paul v. Glou- J. L. 311, 62 Atl. 1135. cester Co., 50 N. J. L. 585, 15 Atl. 44. People v. Hoffman, 116 III. 272, 1 L. R. A. 86; Noonan v. Hud- 587, 5 N. E. 596; In re Cleveland, son County, 51 N. J. L.. 454, 18 52 N. J. L. 188, 19 Atl. 17, 7 L. R. Atl. 117, s. c. on error, 52 N. J. L. A. 431; Paul v. Gloucester Co., 398, 20 Atl. 255. 50 N. J. L. 585, 15 Atl. 272; State V. Pond, 93 Mo. 606, 6 S. W. 469. § 213 LocAx, Option Laws. 493 and such must be the result of the action of the legisla- ture, independent of the contingency of local discretion or option in the premises. The legislatxire must itself, independent of acceptance by such cities, so frame its enactment that there shall be no dissimilarity in char- acter of organization or powers in municipalities of the same class." Hence, it was held that notwithstanding the option in question was granted to every member of the class it contravened the constitutional provision re- lating to uniformity.*^ In Pennsylvania laws of this character will not be sus- tained.*® As applied to the sale of intoxicating liquors judicial decisions generally support the doctrine that the legisla- ture may by law allow local communities to determine by vote the question of the sale within such limits.*'^ But local option laws, that is, laws which may or may not be takep. advantage of and utilized as the people of each locality elect so to do, or not, must apply to the whole state, and must confer upon the people of each locality the privilege of taking advantage, or not, of those laws as they see fit. Hence, a law which authorizes people of only a limited portion of the state, or of every portion of the state except specified parts thereof, to avail themselves of it, is not a valid law. A law which seeks to authorize certain counties of the state to have one kind of county government, and forbids other coun- ties from having the same kind of government is not an equal and uniform law, and contravenes the constitu- tional provisions. But laws which allow all of the coun- 45. McConihe v. State, 17 Fla. People v. Cooper, 83 111. 585, but 238, 268, 269. compare People v. Hoffman, 116 46. Commonwealth v. Denworth, 111. 587, 5 N. E. 596. 145 Pa. St. 172, 178, 22 Atl. 820; 47. Examine Geebrick v. State, Frost V. Cherry, 122 Pa. St. 417, 5 Iowa 492; State v. Weir, 33 426, 15 Atl. 782; Appeal of Scran- Iowa 134, 11 Am. Rep. 115; State ton School District, 113 Pa. St. v. Forkner, 94 Iowa 733, 28 L. R. 176. A. 206. This view is also supported in 494 Municipal Coeporations, §214 ties of the state to have one or the other of two different kinds of local government, as the people may elect, foi example, county orgamzation or township organization, are usually held to be general laws and therefore consti- tutional, since they confer equal privileges upon aU the people of the state.** In accordance with this doctrine a legislative act to regulate the licensing of plumbers in all cities of the state having a population of more than fifty thousand inhabitants, and pro\'lding that it shall be inoperative until adopted by proper ordinance by the city to which it relates, is unconstitutional. Such act is not a complete law; it depends upon the action of every city of the population mentioned therein whether it shall become a law within such city or not. Local option laws are valid only when they are complete enactments, and when they do not depend upon any outside authority to make them laws.** § 214. Curative acts as special or local laws. The general curative power of the legislature over void municipal ordinances is considered elsewhere in this work.^" The proposition is well established that the leg- islature may enact laws to legalize doubtful municipal a,cts. In such case it appears that a general law cannot be made applicable. Thus a curative act legalizing a defective school organization is constitutional.^^ Like- wise is a special law legalizing official acts done without authority, for in such case a general law could not be made applicable.®* So a law validating the acts of munici- pal corporations in levying special taxes in excess of the legal limit, to pay judgments, is not unconstitutional.^^ 48. State ex rel. v. Chicago, 51. State ex rel. v. Squires, 26 etc., R. R. Co., 195 Mo. 228, 245, Iowa 340. 246, 93 S. W. 784. 52. Independent Dist. v. Inde- 49. Ex parte Smith, 231 Mo. pendent Dist., 62 Iowa 616, 22 N. Ill, 117, 11,8, 132 S. W. 607. W. 689. 50. Ch. 12, Enactment of Munic- 53. Iowa R. Land Co. v. Soper, ipal Orditiances, and chapter on 39 Iowa 112. public improvements. § 214 CtTBATivB Acts. 495 The legislature has power to pass acts curing the fail- ure to comply with statutory requirements that might originally have been dispensed with in the proceedings of municipal corporations.^* Thus a curative act intended to provide for a temporary object, as to legalize a certain class of existing local ordinances and contracts is valid. "For such purpose, a really distinctive class may, and often must, be based upon existing temporary circum- stances."^" Where such act includes all existing local ordinances (as those of a village) and contracts simi- larly situated as respects the subject and object, of the act, it is not special legislation.'* So it is not special legislation for an act to provide that a municipal corpo- ration which succeeds to rights, franchises and property of a former provisional city or town government, without legal authority to contract, etc., should pay the debts and liabilities of such provisional government."'' 54. Board of Education v. that a certain contract with the Hyatt, 152 Cal. 515, 93 Pac. 117, city for the construction of an 119. electric light plant and the opera- 55. Windsor v. Des Moines, 101 tion and maintenance thereof, "is la. 343, 70 N. W. 214; Cobb T. hereby legalized, * * • as fully Bord, 40 Minn. 479. as though the requirements of 56. Flynn v. L. F. E. and N. the law leading up to and neces- Co., 74 Minn. 180, 77 N. W. 38. sary thereto had been followed In 57. Mayor, etc., of Guthrie v. every respect and particular, and Territory ex rel., 1 Okla. 188, on full compliance with the law," 21 L. R. A. 841, 31 Pac. 190. operates to cure all defects in the Validating power of the legls- preliminary proceedings incident lature. The legislature may vail- to the making of the contract, but date any act of a municipal cor- does not necessarily render the poration that it could authorize contract itself valid. Windsor v. In the first instance. Shepherd v. Des Moines, 101 Iowa 343, 81 N. Kansas City, 81 Kan. 369, 105 Pac. W. 476. 531; Racine y. Morris, 136 N. Y. The legislature may legalize App. Div. 467, 121 N. Y. Supp. acts of a municipal corporation in 146; Barre v. Perry, 82 Vt. 301, 73 erecting a city hall and render Atl. 574. such acts binding. Ida Grove v. A curative act, whose preamble Ida Grove Armory Co. (Iowa), refers to certain specified defects, 125 N. W. 866. but tbe body of which declares 496 Municipal Corpoeations, §§215,216 § 215. Laws to give effect to constitutioixal provisions. General laws may be enacted on all subjects wMch con- cern the relation of the state to the locality. Likewise, such laws may be passed when it becomes necessary to give practical effect to express provisions of the Consti- tution.^^ Legislation which is necessary or appropriate to carry into effect a positive &ommand of the organic law, or, which is required or directly contemplated by its terms, cannot justly be held to be either special or local within the true intent and meaning of the Constitution.^® § 216. Indirect or legislative amendment of municipal charters. From this consideration it follows that, the legislature may by proper legislation, within its constitutional au- thority, amend municipal charters, whatever their origin, whether constitutional or legislative, or legislative acts applicable to municipal corporations which become parts of their charters, by the passage of laws which may supersede charter provisions or prior state laws applica- ble thereto. This may be done, first, with reference to all subjects which concern the relations of the state and the locality, subject, however, to the express and implied constitutional limitations, heretofore considered; and second, where the legislation becomes necessary to give practical effect to provisions of the Constitution, or in other words, where it is the result of positive constitu- tional mandate. The provision of the Constitution of California that municipal charters shall prevail over general laws has 58. state ex rel. r. St. Louis & State ex rel. v. Slover, 126 Mo. S. F. Ry., 117 Mo. 1, 22 S. W. 910. 652, 29 S. W. 718; State ex rel. 59. Kenefick v. St. Louis, 127 v. Dolan, 93 Mo. 467; State ex rel. Mo. 1. c. 10, 29 S. W. 838; Kansas v. HIgglns, 125 Mo. 364, 28 S. W. City V. Scarrltt, 127 Mo. 1. c. 655, 638; State ex rel. v. Walton, 69 29 S. W. 845; Ewing v. Hoblit- Mo. 556; Spaulding v. Brady, 128 zelle, 85 Mo. 64; State ex rel. v. Mo. 653, 31 S. W. 103; State ex rel. Owsley, 122 Mo. 68, 26 S. W. 659; v. Shields, 4 Mo. App. 259. §217 Amending Municipal Ohaetebs. 497 been held to apply to the City and County of San Fran- cisco only in so far as it exercises the functions of a municipal government; hence, it is competent for the state legislature to enact appropriate laws for its govern- ment in all state affairs, since the state's power and duty in this respect remain unaffected by the constitu- tional provision.'" § 217. Changing special municipal charters. As mentioned elsewhere, prior to the adoption of the constitutional requirement that the incorporation of local communities should be by general law, the method of incorporating such communities was by special act of the legislature.*^ Organic provisions forbidding special legislation re- lating to municipal corporations do not affect special charters in force at the time of their adoption.®^ Hence, amendments or repeals of special charters may be made by special act.*' 60. Nichols V. Koster, 157 Cal. 416, 108 Pac. 302. 61. § 125, supra. 62. People v. Cooper, 83 111. 585; Guild v. Chicago, 82 111. 472; Commonwealth v. Reynolds, 137 Pa. St. 389, 20 Atl. 1011; Bitting v. Commonwealth (Pa.), 20 W. N. C. 178, 12 Atl. 29; Darrow v. People, 8 Colo. 426, 8 Pac. 924. When special charter is repeal- ed. Heinze v. People, 92 111. 406. 63. Colorado. Brown v. Denver, 7 Colo. 305, 3 Pac. 455; People v. Londoner, 13 Colo. 303, 22 Pac. 764, 6 L. R. A. 444; Cunningham V. Denver, 23 Colo. 18, 45 Pac. 356. Idaho. Butler v. Lewiston, 11 Idaho 393, 83 Pac. 234. Indiana. Wiley v. Bluffton, 111 Ind. 152; Warren v. Bvansvllle, 106 Ind. 104; Bluftton v. Stude- baker, 106 Ind. 129; Bvansvllle v. Summers, 108 Ind. 189; Long- 1 McQ.— 82 worths V. EvansvlUe, 32 Ind. 322; Evansville v. Bayard, 39 Ind. 450; Chamberlain v. Evansville, 77 Ind. 542; Eichels v. Evansville Street Railway, 78 Ind. 261, 41 Am. Rep. 561. Maine. Farnsworth v. Lime Rock Co., 83 Me. 440, 22 Atl. 373. Missouri. Kelly v. Meeks, 87 Mo. 396; Rutherford v. Heddens, 82 Mo. 388; Rutherford v. Hamil- ton, 197 Mo. 543. J/^ew Jersey. Worthley v. Steen, 43 N. J. L. 542. See, however, Athinson v. Bartholow, 4 Kan. 124; Ex parte Pritz, 9 Iowa 30; Davis v. Wool- nough, 9 Iowa 104; State v. Cin- cinnati, 20 Ohio St. 18; Baker v. Steamboat, 14 Iowa 214; Tiger V. Morris Co. Common Pleas, 42 N. J. L. 631; Adams v. Beloit, 105 Wis. 363, 81 N. W. 869, 47 L. R. A, 441. 498 MtTNicrpAL Cobpobatioks. ^218 § 218. Summary of principles applied to test the valid- ity of classification. In view of the foregoing consideration, in order to test the validity of classification, the following general principles may be deduced : 1. The validity of the classification is not to be ascer- tained by the number of municipal corporations affected by the act. However, as mentioned above, if the act is restricted so that it necessarily applies to one municipal corporation only, and cannot in the future apply to an- other, it is really no classification at all. 2. A law enacted for municipal corporations as a class (e. g., of the first class, of the second class, etc.) must operate uniformly upon all the members of the class, or, to state the rule differently, it must apply in like manner to every local corporation falling within the class for which the act is designed. But it should be mentioned here that, prior valid local or special laws existing in one or more of the municipal corporations to which the act is applicable may affect the equality of the operation; however, this will not render the act special. 3. Classification designed to operate in the present and based upon existing circumstances is bad. Of course, if the object of the act is to serve a temporary purpose, . or if it is merely curative, it may be sustained as con- stitutional legislation, not, however, on account of proper classification. 4. The classification adopted must rest in real or sub- stantial distinctions, which renders one class, in truth, distinct or different from another class. As explained and illustrated in the preceding sections, the facts of the given case and the views of the deciding court determine the degree of difference. No hard and fast rule can be laid down on this subject which may have general ap- plication. 5. There must exist a reasonable justification for the classification; that is, the basis of the classification in- voked must have a direct relation to the purpose of the ^218 Pbinoiples op Legislative Control. 499 law. Eespecting this rule, as we have seen, judicial views vary, and are directed mainly by the facts and circumstances of each case.'* 6. An act which applies to and embraces all municipal corporations which are or may come into like situations and circumstances is proper classification. 7. In those jurisdictions which sanction laws to take effect on the event of a future contingency or within a limited time, this rule has been announced : Where the law is to operate when accepted by the community, and is limited as to the time of acceptance, the applica- tion of the law must not be restricted beyond the reason- able relation of the restriction to the purpose of the law.'" 64. Stkte V. Pugh, 43 Ohio St. 98; State v. Phllbrlck, 49 N. J. L. 374, 15 Atl. 579; Clark v. Cape May, 50 N. J. L. 558, 16 Atl. 581; State V. Mayor, 53 N. J. L. 4, 20 Atl. 886. 65. De Hart v. Atlantic City, 63 N. J. L. 223, 227, 43 Atl. 742. New Jersey. Heifer t. Simon, 53 N. J. L. 550, 22 Atl. 120; Long Branch v. Sloane, 49 N. J. L. 356; Van Ripper v. Parsons, 40 N. J. L. 123; Anderson t. Trenton, 42 N. J. L. 486. Ohio. Bronson v. Oberlin, 41 Ohio St. 476. Pennsylvania. McCarthy v. Com., 110 Pa. St. 243, 246, 247, 2 Atl. 423. Wisconsin. State ex rel. v. Trustees, 121 Wis. 44, 98 N, W. 954. The whole doctrine is, in sub- stance, thus summarized in a Wisconsin case: A lawful classifi- cation of cities (1) must he based on substantial distinctions mak- ing one class really different from another; (2) it must be germane to the purpose of the law; (3) it must not be based on existing circumstances only; (4) the law must apply equally to members of the class; (5) the character of the class must be so far different from- other situa- tions as, within the bounds of reason at least, to suggest neces- sity or propriety, having regard to the public good, of substantially different legislative treatment. Bloomer v. Bloomer, 128 Wis. 297, 307, 107 N. W. 974. 500 MuNICIPAIi COBPOBATIONS. §219 4. LBGISLATIVB CONTROL OF CORPORATE PROPERTY. § 219. Legislative control of corporate property — ^gen- eral consideration. In view of their public character it is generally as- sumed that the state through its legislature, as the guar- dian of the public interests, may, when necessary, take full control of the public property and the public rights of municipal corporations. As parts of the government of the state, they cannot own property free from state control and regulation. In consideration of the fact that most of the duties of these bodies affect the public, al- though chiefly that portion which resides within their limits, the view obtained in some of the earlier cases that property held and managed by municipal corporations in order to enable them to execute their powers and perform their duties, occupied a somewhat different po- sition in law from that of the individual or the private corporation.** Eespecting legislative interference the fundamental question is the private rights of the municipal corpora- tion against the encroachments upon it by the state, and the courts are, in the true sense of the word, protectors of such rights under our constitutional system. At pres- ent the private rights of the municipal corporations are recognized, and all of their property of a distinctly pri- vate character is fully protected by the constitutional provisions protecting private property of the individual or private corporation.*'' 66. Darlington v. Mayor, etc., Ed. 446, 11 Sup. Ct. Rep. 790 ; Ward 31 N. Y. 164, 28 How. Pr. 352, 88 v. Field Museum, 241 111. 496, 89 Am. Dec. 248, in wMch absolute N. E. 731; Codman v. Crocker, 203 and unlimited legislative control Mass. 146, 89 N. E. 177. ot all municipal property Is as- 67. Public and private character sorted, denying Bailey v. Mayor, of municipal administration, § 87, etc., 3 HUl (NY.) 531. supra. See Essex Public Road Board Origin of private municipal car V. Sklnkle, 140 V. S. 334, 35 L. paoity, § 119, supra. ■^ 219 Corporate Property : Legislative Control. 501 The right of the state as to the private property of the municipal corporation is a right of regulation, and Legislative control of corporate property. Dartmouth Coll. v. Woodward, 4 Wheat. (U. S.) 694, 695, 4 L. Ed. 629; Davidson v. New York, 27 How. Pr. (N. Y.) 342; Baldwin v. New York, 45 Barb. (N. Y.) 359; People ex rel. V. Haws, 37 Barb. (N. Y.) 440; In re Jensen, 28 Misc. (N. Y.) 378, 59 N. Y. Supp. 653. In Montpelier v. Bast Mont- pelier, 29 Vt. 12, 19, 67 Am. Dec. 748, it is said that, "It has uniformly been held that towns and other public corporations may have private rights and interests vested in them under their char- ter; and as to those rights they are to be regarded and protected the same as if they were the rights and interests of individuals, or of private corporations; and grants of property to them in trust for other purposes than cor- porate and municipal use are no more the subject of legislative control than are the private and vested rights of individuals." In an early New York case it was said that the inhabitants of a city have a vested right in mu- nicipal property "which cannot be taken from them any more than their Individual dwellings or store houses." Benson v. New York, 10. Barb. 223, 224. "In its capacity of owner of property, designed for its own, or the exclusive use and benefit of its inhabitants, its vested rights of property are no more the sub- ject of legislative interference or control, without the consent of the corporators, than those of a mere- ly private corporation or person. Its rights of property, once ac- quired, though designed and used to aid it in the discharge Of its duties as a local government, are entirely distinct and separate from its powers as a political or municipal body." Town of Mil- waukee V. City of Milwaukee, 12 Wis. 93, 100. In a New York case it is held that money raised by a municipal corporation for corporate purposes does not belong to the state, either in the capacity of trustee, prin- cipal or owner. In this case it was said: "In political and govern- mental matters, the municipalities are the representatives of the sov- ereignty of the state, and auxil- iary to it; in other matters relat- ing to property rights, pecuniary obligations, they have the attri- butes and distinctive legal rights of private corporations, and may acquire property, create debts, and sue, and be sued, as other corpo rations, and in the borrowing of money, and incurring pecuniary obligations in any form, as well as in the buying and selling of property within the limits of the corporate powers conferred, they neither represent nor bind the state." People v. IngersoU, 58 N. Y. 1, 29, 30. "A municipal corporation is the trustee of the inhabitants of the territory embraced within its lim- its." Darlington v. Mayor, 31 N. Y. 164, 88 Am. Dec. 248; North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109. In referring to the exception that the private property and in- terest of municipal corpora- 502 Municipal Coepobations, §219 ttough broader than exists in the case of individuals, is not a right of appropriation.®* As to public property in the sense of its being govern- mental, the limit of legislative control is that such prop- tions are not subject to unlimited legislature control, Marshall, C. J., said: "The effect of this ex- ception is to admit that a mu- nicipal corporation may be capac- itated to acquire property by Its own means and for its own pur- poses, or for those of the cor- porators, and that the legislature cannot in the exercise of its power over the corporation, divert such property from the uses of those at whose expense and for whose use it was purchased." Louisville T. University of Louisville, 15 B. Mon. (Ky.) 642, 674. This case explains certain ex- pressions In the opinion of Chief Justice Marshall in Dartmouth College V. Woodward, supra, in asserting uncontrolled legislative discretion respecting grants to corporations of political powers, or franchises to civil Institutions to be employed in the administra- tion of the government, and con- cludes that a municipal corpora- tion may acquire property which does not thereby belong to the state, and may appropriate it to uses which the state cannot defeat or control; that in such acts of acquisition and appropriation it is not the mere Instrument or agent of the government repre- senting and acting for it, and these acts though done under the authority of law, cannot be re- garded as acts of the state or Its government, or as a part of its administration; nor can they of themselves impart that char- acter to the object of the appro- priation nor subject It to a legis- lative power which did not attach either to the object of the appro- priation or to the property itself before It was thus appropriated; but such property, so far as the state Is concerned, has all the at- tributes and is entitled to all the protection of private property. Private property belonging to the municipal corporation may with reference to the local com- munity be deemed public prop- erty, but not so with reference to the state. "The legislature cannot take away from the community rights or property which existed or were acquired without the aid of legis- lation (of the state). A munici- pality has a dual character. In its capacity as a private corpora- tion it exercises rights and pow- ers inherent in the people of the community which have never been surrendered to any depart- ment of the government, and which are property rights within the protection of the Constitu- tion." Lexington v. .Thompson, 113 Ky. 540, 68 S. W. 477, 57 L. R. A, 775, 101 Am. St. Rep. 361. ;68. People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103 ;^ State ex rel. V. Denny, 118 Ind. 382, 24 Am. and Eng. Corp. Cas. 223, 4 L. R. A. 79, 21 N. E. 252. § 220 Co»POBATB Pbopeett : Legislative Contbol. 503 erty cannot be devoted to private uses by legislative action alone, either directly or indirectly, after its dedi- cation to pubHo uses." § 220. Same— water-works. The cases differ as to the public or private character of vfater-works, but the weight of authority, in so far as legislative control is concerned, classes them as private affairs.'^" And whenever the question arises in the exer- cise of the city's power to sell, or the right to take such works on execution for a debt against the city, great stress is laid upon the right of the inhabitants of the city, and ordinarily courts declare such works to be pub- lic property. 69. In PennsylTania an act which provides that certain per- sons should act as trustees of property which had been left to Philadelphia for charitable pur- poses was held to be a proper ex- ercise of the control possessed by the legislature over municipal corporations. Here, it should be stated the rights of the inhabitants of the city were not destroyed. Philadelphia v. Fox, 64 Pa. St. 169. Contra; Trustees v. Bradbury, 11 Maine 118; Gary Library v. Bliss, 151 Mass. 364, 25 N. E. 92. 70. Public and private charac- ter of water-works. David v. Portland Water Committee, 14 Ore. 98, where it is said at p. 123: "Public parks, gas, water, and sewage in towns and cities may ordinarily be classed as private affairs, but they often become mat- ters of public Imjwrtance; and when the legislature determines that there is a public necessity for their use in a certain locality, I do not think they can be desig- nated as mere private affairs. This is a relative question. Take the case at bar. The City of Port- land needs a supply of water. It has to be brought from some place outside of the city. The matter is presented to the legislature, and it determines that it is a matter of public necessity; that steps should be taken to insure to the city wholesome water at cheap rates; and can it be claimed that It was a mere private affair, and the legislature had no authority to Interfere with it?" See Russell v. Tacoma, 8 Wash. 156, 40 Am. St. Rep. 895; Newport V Commonwealth, 106 Ky. 434, 45 U R. A. 518. 504 Mttnicipal Corporations. §220 Many cases hold that the legislature cannot interfere with a municipal corporation in the control of its water- works,''^ others announce a contrary doctrine/* 71. state ex rel. v. Barker, 116 la. 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep, 222; Helena Consolidated Water Co. v. Steele, 20 Mont. 1, 49 Pac. 382, 37 L. R. A. 412. 72. Legislative act creating a board to manage water-works is constitutional. In Coyle v. Mc- Intire, 7 Hous. (Del.) 44, 84, 94, the legislature established a board of water commissioners of the City of Wilmington to be composed of three of its citizens, their succes- sors to be appointed by the mayor, ■who were to have complete control of all matters relating to the water supply of said city, fix the water rate, collect all revenue due therefrom, exercise absolute con- trol of the employees of the water department and were authorized to change in whole or in part all ordinances relating to said depart- ment. Prior to the passage of the act the water-works belonged to and were under the control of the corporation. The suit herein was brought to declare the act of the legislature establishing the board of water commissioners unconstitutional and void because it is deprivation of property without due process of law, it being contended that the water-works is private property of a public corporation and entitled to the constitutional guaranties of private property in the hands of an individual, and, therefore, is not subject to the control of the state. The court held that the incorpo- ration is merely an agency In- stituted by the state for the pur- pose of carrying out in detail the objects of government — a revoca- ble agency and its charter or act of right to incorporation is in no sense a contract with the state. The legislature may enlarge or diminish its territorial extent or its functions or destroy its very existence at will. The right conferred upon the municipal corporation to acquire, hold and dispose of property, sue and be sued, does not in any sense make that property private proper- ty. It being a public corporation the uses of this property are pub- lic uses, beneficial to the citizens generally of the municipality and no citizen possesses any interest in it which is private, which he can in any manner sell or dispose of. No portion of such property so held by the city can pass to the local representative of any inhabi- tant of the city or descend to his heirs upon his death. Partition cannot be made of it. A citizen removing from the city ceases to have any interest In the use of the property as one of the cor- porators, and a stranger becom- ing an inhabitant thereof immedi- ately as a corporator becomes en- titled to the same interest In the use of the property as all other inhabitants. Hence, the act of the legislature constituting a board of commis- sioners for the management of § 220 CoEPOEATE Peopeety : Legislative Conteol. 505 It is clear that such water-works are public in char- acter in the sense that they subserve a public purpose, although the public is limited by the city's boundaries. It is also true that they are local in the sense that they serve a local purpose of administration and do not con- cern the people of the state at large. That in the regulation of the use of municipal prop- erty, although devoted to a strictly public purpose, the legislative control is not unlimited, is weU illustrated by a New York case, where it was held that land used by the city upon which has been erected a reservoir, cannot be appropriated by legislative act for the pur- poses of a public park or square. It appears that the city was deriving a revenue from the property, and the effect of the legislative act would have rendered the property valueless for this purpose. The act was considered a violation of the provisions of the federal and state con- stitutions prohibiting the legislature from taking prop- erty for public use without giving compensation.'^* It should be noted that the opinion claimed for the City of New York an absolute fee in the property in question, as it had become vested by virtue of grant in the colonial charters which were recognized by the first Constitution of the state. In this respect this case may be distin- guished from others. the property of a municipal cor- the legislature, the uses and pur- poration for the benefit of its citl- poses of the property continue the zens is not a diversion of the prop- same — the supply of water to the erty from the purposes of its ac- Inhabitants of the city, quisition. By the appointment of The legislature may authorize a this board of commissioners the board of water commissioners to title of the city was not divested, issue bonds for a water-works to the property was not taken from supply a city and to execute a the city, nor was the use of the mortgag-e to secure the same. property changed from Its original Brockenbrough v. Water Com'rs., purpose. Whether managed by 134 N. C. 1, 46 S. E. 28. the city council or the board of 73. Webb v. Mayor, 64 How. water commissioners appointed by Pr. (N. Y.) 10. 506 Municipal Coepoeations. §221 § 221. Same — parks. < As affects the question under consideration many cases hold that parks are in the nature of private prop- erty. This rule appears to obtain in Illinois, Massachu- setts, Michigan and Missouri.'^* In other jurisdictions the contrary has been held.''' A municipal corporation may hold and own lands for a public park as an individual may for pleasure grounds, and cause them to be beautified and improved as such; and it holds such lands "not in its public capacity as the agency of the government and subject to the unrestricted control of the state, but as a corporate individual, having private rights of its own, which it is at liberty to enjoy undisturbed by the state, and in the enjoyment of which the Constitution will protect its people. ' ' ''^ 74. Illvnois. People v. Chicago, 51 111. 17. But see, Ward v. Field Museum, 241 111. 496, 89 N. E. 731. Massachusetts . Mount Hope Cemetery t. Boston, 158 Mass. 509, 33 N. B. 695, 35 Am. St. Rep. 515. Michigan. People v. Detroit, 28 Mich. 228, 15 Am. Rep. 202. Missouri. State ex rel. v. Schweickardt, 109 Mo. 496, 19 S. W. 47. The legislature cannot place the power of appointing park commis- sioners in the courts, but may legally authorize the mayor and council of a municipal corporation to do so. Shannon v. Bartholo- mew, 83 Neb. 821, 120 N. W. 460. 75. Parks as public property, "The control of public parks belongs primarily to the state. * * * Such public parks are held not for the sole use of the people of a particular municipali- ty, but for the use of the general public which the legislature repre- sents. Municipalities in control- ling and managing such public parks act as governmental agen- cies, exercising an authority dele- gated by the state, and are always subject to legislative control." Hartford v. Maslen, 76 Conn. 599, 611, 57 Atl. 740. See also, Ward v. Field Museum, 241 lU. 496, 89 N. E. 731; Com. v. Davis, 162 Mass. 510, 39 N. E. 113; Davis T. Portland, 14 Ore. 98, 12 Pac. 174. 76. Detroit v. Park Comrs., 44 Mich. 602, 604, per Cooley, J. Legislative control of parks aird squares. Where city has taken land for use as a park it may be relieved of such trust by an act of th^ legislature. Brook- lyn Park Comrs. v. Armstrong, .45 N. Y. 234, 6 Am. Rep. 70. Where a square is donated to the public generally and not to the city the legislature may with- out the consent of the city, author- ize the erectlo;n of a monument to soldiers therein. Gleason v. Cleve- land, 49 Ohio St. 431, 31 N. E. 802. § 223 Ct>BPOiiA.TE Pbopeett : Legislative Conteol. 507 § 222. Same— wharves. The cases also differ with respect to wharves.'''' Where a city in pursuance of legislative authority is given the right to build wharves and to charge wharfage, and thus spends large sums of money in such work, it has been held that the legislature cannot afterwards provide that certain classes of vessels shall be exempt from wharfage fates. Here, it was considered that the private rights of the municipal corporation in this respect were protected by the Constitution.''^ § 223. Same — ^ferry franchises. In an early New York case an act of the legislature providing for the appointment of certain commissioners to lease certain ferries owned by the City of New York was declared invalid, because, as stated by the court: "The City of New York and its iahabitants have ac- quired vested rights and valuable interests in these fer- ries which cannot be taken away by the legislature. The doctrine of the inviolability of such franchise inter- ests rests upon two grounds : 1. The constitutional pro- tection thrown around contracts. 2. The sacredness of vested rights."''® 77. Horn T. People, 26 Mich. Charles River Bridge v. Warren 221. Bridge, 11 Peters 420. Legislature may control Ferry franchises. In England wharves. Bateman v. Covington, the right to establish and operate 90 Ky. 390, 12 Ky. L. Rep. 384, 14 a ferry Is a privilege granted by S. W. 361; Portland, etc., R. Co. v. the Crown, but user of 35 years Portland, 14 Or. 188, 12 Pac. 265, will create the presumption of B8 Am. Rep. 299. legality. Trotter v. Harris, 2 G. 78. Bllerman v. McMalns, 30 £ J. 285. La. Ann. 190, 31 Am. Rep. 218, ap- A ferry exists by virtue of a proved In N. O. M. & T. Ry. Co. v. grant or license. Is regarded as a Ellerman, 105 U. S. 166. See St. personal privilege. Stark v. Miller, Louis V. Shields, 52 Mo. 351, 354. 3 Mo. 470, and is not transferable. 79. Benson v. Mayor, etc., 10 Reagan v. McCoy, 29 Mo. 1. c. 368. Barb. (N. T.) 223, 240, citing In Iowa public ferry franchises Dartmouth Coll. v. Woodward, 4 can only be conferred by the gov- Wheat. 444, and distinguishing emment (state, county or city) 508 Municipal Corporations. §223 In a case whicli was determined by tlie United States Supreme Court (1850) it appears that the Connecticut legislature had granted to East Hartford one-half of the ferry over the Connecticut River "during the pleasure of the legislature." Subsequently a duly chartered com- pany erected a bridge across the river, and thereupon the legislature authorized the discontinuance of the ferry, which act was sustained as not being violative of the law impairing the obligation of contracts. Although the ferry privilege was not absolute, as under its terms it was perfectly competent for the legislature to withdraw it at any time, which would afford a reasonable ground upon which to base the decision, and which clearly dis- tinguishes this case from the I^ew York case above given, it should be stated that the opinion is based upon the specific ground that the matter was public or govern- mental as distinguished from private.®" A Virginia case specifically holds that ferry fran- chises are public property and are therefore under the absolute and unlimited control of the state through its legislature. "The right to confer them belongs to the legislature as trustee, not merely for the individuals liv- ing within the limits of the particular municipality, but for the public at large. ' '®^ And the rule usually enforced and must be founded on grant, of a monopoly or special privilege, license or prescription. Prosser v. but can tbe legislature of Missouri Wapello County, 18 la. 327. do so under Const. Art. IV, sec. 53, According to some authorities prohibiting the granting by "local the right to maintain a ferry may or special law" of "any special or be acquired by prescription, but in exclusive right, privilege or im- -Buch case a grant from the legisla- munity?" tive authority is presumed. 80. East Hartford v. Hartford The state may grant the right Bridge Co., 10 How. (TJ. S.) 511, to ferry across a navigable stream 534, 16 Conn. 149, 17 Conn. 79. between two states. Challiss v. This case is distinguished in Davis, 56 Mo. 25; Carroll v. Camp- Benson v. Mayor, etc., 10 Barb, bell, 108 Mo. 550, 17 S. W. 884, (N. Y.) at p. 243 et seq. See Cov- 110 Mo. 557, 19 S. W. 809. ' ington v. Kentucky, 173 U. S. 231, In the absence of constitutional 19 Sup. Ct. Rep. 383. restraint, the state may grant an 81. Roper v. McWhorter, 77 exclusive ferry franchise, as it is Va. 214, 218. not usually regarded as the grant § 224 CoEPOBATE Pbopbbty : Legislative Control. 509 is that the grant of authority hy a state to a municipal corporation to control a public ferry, with the right to collect and enjoy the revenues therefrom, is not a con- tract, but may be recalled by the state at any time.*^ Hence, the state has power to alter, change, abolish or modify at will all rights granted by a franchise to a municipal corporation to operate a ferry. Not so, how- ever, in cases where there is a contract with some indi- vidual where the obligation will be impaired.^* And the general rule is that a municipal corporation may acquire and operate a ferry only when so empow- ered by the state.^* So a charter which grants a munici- pal corporation the right to license and tax ferries unless this right -be expressed as exclusive does not divest the state of the right to license and tax the same ferries.^' So the corporate authorities cannot bind a municipal corporation to pay a certain price bid by them for a ferry unless such authorities are authorized by the state to do so, 86 § 224. Miscellaneous corporate property. In Wisconsin it has been held that a legislative act seeking to appropriate municipal money contributed by 82. Marks v. Donaldsonvllle, the memory of living men will in 24 La. Ann. 242. the absence of other evidence 83. Police Jury v. Shreveport, establish the right of a municipal 5 La. Ann. 661; Darlington v. corporation to a ferry franchise Mayor, 31 N. Y. 164, 202, 203. by prescription. The state may "A franchise granted to a mu- divest a city of a franchise by nicipal corporation to keep a ferry prescription but the statute must is subject to the superintendence show plainly such purpose and and control of the state and may intent for it will not have been be changed, modified or destroyed done by mere implication. Laredo as the exigencies of the public v. Martin, 52 Tex. 548. may demand so that their proper- 84. Attorney General v. Boston, ty is not divested from the uses 123 Mass. 460. and objects for which it was given 85. Harrison v. State, 9 Mo. or purchased." Trustees v. Tat- 530 (1845). man, 13 111. 27, 30. 86. Millsap T. Monroe, 37 La, A ferry In use for a time beyond Ann. 641. 510 Municipal Cokpobations. §224 taxation for the purpose of erecting a high school to the purchase of land for a state normal school, to be estab- lished in the city, without the consent of the city or its inhabitants, was invalid.*'^ In New Hampshire bonds granted by legislative act to a municipal corporation in order to reimburse such cor- poration for expenses which it had incurred in a purely public matter, namely, encouragement of enlistment in the army during the civil war, and not for the purpose, or with the expectation that such corporation should de- rive a private revenue therefrom, was held to be "an unqualified, unlimited, unencumbered grant, possessing all of the incidents of an executed and irrevocable con- tract," and therefore, a subsequent lejgislative act, "de- claring- a portion of the fund which had been solemnly granted to the town of Andover to belong to and be the property of certain individuals, is invalid, as being con- trary to that provision of the Federal Constitution, art. I, sec. 10, which declares that no state shall pass a law impairing the obligation of contracts."®* In Texas it has been held that lands granted by the legislature to a county for school purposes cannot be subsequently taken from the county by special act, either directly or indirectly. The act in question attempted to validate patents for such lands which had been issued to private individuals, the effect of which was to divest the county of its title to them. The opinion is put upon the distinct ground that the property rights of counties were protected by the same constitutional guaranties 87. state v. Haben, 22 Wis. 660. Federal Constitution as private Property rights of municipal Individuals are. The legislature corporation are protected. In the cannot divest a municipal corpo- opinion the court uses this Ian- ration of its property without the guage (at 665): "It is well set- consent of its inhabitants, nor im- tled as to all matters pertaining pair the obligation of a contract to vested rights of property, entered into with or in behalf of whether real or per^jnal, and to such corporations," citing Milwau- the obligation of contracts, that kee v. Milwaukee, 12 Wis. 93. municipal corporations are as 88. Spaulding v. Andover, 54 much within the protection of the N. H. 38, 56. - § 225 CoKPORATE Peopebtt : Legislative Conieol, 511 ■wlhich protect the property of the individual or private corporation.** Where land was dedicated to a city for a particular purpose the legislature has no power to authorize any other use of the property than that specified in the act of dedicatioil,®'' § 225. Same — ^transfer to another class of public officers. It is generally held that transferring property and au- thority by act of the legislature from one class of public officers to another where the property is still devoted to its original purpose, does not invade the vested rights of the city.'^ While the legislature cannot appropriate to the state the private property of the city, it possesses power of regulation, since the property is devoted to 89. Milan County t. Bateman, B4 Tex. 153, 166. 90. Cummings v. St. Louis, 90 Mo. 259, 2 S. W. 130. May control 'buildings for pub- lic purposes. Wellington v. Well- ington Twp., 46 Kan. 213, 26 Pac. 415. Property used for the city po- lice. Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572. 91. Mount Hope Cemetery v. Boston, 158 Mass. 509, 35 Am. St. Rep. 515, 33 N. B. 695; People v. Detroit, 28 Mich. 228, 15 Am. Rep. 202; People v. Chicago, 51 111. 17, 2 Am. Dec. 278; State ex rel. v. Schweickardt, 109 Mo. 496, 19 S. W. 47. Compare EvansviUe v. State ex rel., 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93, 24 Am. and Eng. Corp. Cas. 203. Transfer of property. The legislature has power according to dictum of Vermont Supreme Court, to divide a town and apportion property held by it for strictly governmental purposes, in such manner as it sees fit, as a result of its general power over all govern- mental agencies. Montpelier v. East Montpelier, 29 Vt. 12, 67 Am. Dec. 74. In the same case it is intimated that although the legislature can- not deprive the inhabitants of the use of property left in trust for them, it may change the trustee if it desires. In Delaware a legislative act creating a board of water commis- sioners and turning over to it the water-works of a city already ex- isting and giving the board ex- clusive control was sustained, the court holding that the city had no vested or constitutional rights, as against the state to control and manage its water-works or to ap- point those who are to maintain and control them. Coyle v. Mc- Intire, 7 Houston (Del.) 44, 40 Am. St. Rep. 109 and note. 512 Municipal Cobpobations. §226 public purposes, and tlie legislature may therefore, ■with- in proper limits, direct the mode in -whicli the property shall be used.®^ So, it has been held that the transfer of money by legislative act from one fund of a city to another to pay a debt does not deprive the city of its property within the constitutional provision as to due process of law. But in a Massachusetts decision an act which provided that the City of Boston should transfer to a cemetery company, which was created by the act, all lands con- stituting its cemetery, together with all other property pertaining thereto, was held void as an attempt to com- pel the transfer of private property without compensa- tion, which was considered to be in violation of both the state and Federal Constitutions. The decision is put upon the ground "the cemetery falls within the class of prop- erty which the city owns in its private or proprietary character as a private corporation might own it."** § 226. Same — general doctrine stated. It thus appears that, according to the weight of the later judicial decisions (and earlier ones also), municipal corporations may own private property, or property which is viewed by the law as held for the benefit of the inhabitants of the locality, which is free from legislative appropriation or control, and is held by the local cor- poration under the security of private rights applicable to individuals.®* 92. See St. Louis v. Shields, 52 California. Grogan v. San Fran- Mo. 351, 354. Cisco, 18 Cal. 590, 613; Holladay 93. Mount Hope Cemetery r. v. Frisbie, 15 Cal. 630; Wheeler Boston, 158 Mass. 509, 33 N. E. v. Miller, 16 Cal, 124. 695, 35 Am. St. Rep. 515, and Georgia. Savannah v. Steam elaborate note, pp. 529-540. Boat Co., R. M. Charlt. 342. 94. Public and private charac- Illinois. Wagner v. Rock Island, ter of municipal administration, 146 111. 139, 34 N. B. 645, 21 L. R. g 87 supra. A. 519. Origin of private municipal Indiana. State ex rel. v. Denny, capacity, § 119 supra. 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79, 24 Am. & Eng. Corp. Cas. § 226 CoBPOBATB Peopebtt : Legislative Conteol. 513 It also appears from the above consideration that the property held by the municipal corporation for the public generally as distinguished from its own inhabitants is subject to control by the legislature.*® 223; state v. Springfield Twp., 6 Ind. 83. Iowa. State ex rel. v. Barker, 116 la. 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222. Louisiana. New Orleans, etc. R. Co. V. New Orleans, 26 La. Ann. 478, 517. Michigan. People t. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; De- troit V. Detroit & H. PI. Rd. Co., 43 Mich. 140, 5 N. W. 275. New York. People v. Fields, 58 N. Y. 491; Benson v. N. Y., 10 Barb. (N. Y.) 223; People ex rel. V. Coler, 166 N. Y. 1, 10, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605, affirming 56 N. Y. App. DiT. 98, 67 N. Y. Supp! 701; Webb V. New York, 64 How. Pr. 10. South Carolina. In re Malone, 21 S. C. 435, 448. Vermont. Atkins v. Randolph, 31 Vt. 226; White v. Puller, 38 Vt. 193; Poultney v. Wells, 1 Ark. 180. Wisconsin. Milwaukee v. Mil- waukee, 12 Wis. 94. United States. New Orleans M. & T. R. Co. V. Ellerman, 105 U. S. 166, 26 L. Ed. 1015; Terrett v. Taylor, 9 Cranch (U. S.) 52, 3 L. Ed. 650. Opinion of Story, J., in Dartmouth College v. Woodward, 4 Wheat. (U. S.) 618, 4 L. Ed. 673. State may revoke or abridge rights of city acquired In proper- ty under Its charter, saving vested rights of third persons. Clinton V. C. R. & W. R. Co., 24 Iowa 455. Certain beach and water prop- erty of a city cannot be Interfered 1 McQ.— 33 with by legislature. Wood v. San Francisco, 4 Cal. 190. Vermont. Montpelier v. East Montpelier, 29 Vt. 12, 19, 67 Am. Dec. 748. Wisconsin. Milwaukee v. Mil- waukee, 12 Wis. 93. 95. CaUfomia. San Francisco V. Canavan, 42 Cal. 541. Connecticut. Hartford Bridge Co. V. East Hartford, 16 Conn. 149, 172. Georgia. State v. Savannah, R. M. Charlt. 250. Illinois. Bush v. Shipman, 5 111. 190. As to streets and highways Cicero Lumber Co. v. Cicero, 176 111. 9, 51 N. E.' 758, 42 L. R. A. 696, 68 Am. St. Rep. 155. Kansas. Wellington v. Welling- ton Twp., 46 Kan. 213, 26 Pac. 415. Louisiana. New Orleans, etc. R. Co. v. New Orleans, 26 La. Ann. 517. Michigan. Paye v. Grosse Pointe, 134 Mich. 524, 96 N. W. 1077. New Jersey. Skinkle v. Essex P. Rd. Board, 47 N. J. L. 93; State (Millburn) v. South Orange, 55 N. J. L. 254, 26 Atl. 75. New York. Darlington v. New York, 31 N. Y. 164, 88 Am. Dec. 24S. Oregon. Portland, etc. R. Co. v. Portland, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299. Wisconsin. Columbus v. Colum- bus, 82 Wis. 374, 52 N. W. 425, 16 L. R. A. 695. 514 Municipal Cobpobations. §227 9. LEGISLATIVE CONTROL OF STREETS AND HIGHWAYS. § 227. Legislative control of streets is paramount. As tlie entire law relating to ,streets is treated in a separate chapter, it is only necessary in this place to in- dicate the extent of legislative authority. The use of streets is designed for the public at large, as distinguished from the legal entity known as the city, or municipal corporation. The management of highways may be characterized as municipal duties relating to gov- ernmental affairs. During the early periods of English history the highways were laid out and constructed di- rectly by the government. The government assumed the immediate and sole management of them, and this was recognized as an essential governmental function.^® In this country the control of highways is primarily a state duty.®'' They are everywhere maintained for the use of the public at large. "To the commonwealth here, as to the King in England, belongs the franchise of every highway as a trustee for the public; and streets regulated and repaired by the authority of a municipal corporation are as much high- ways as are rivers, railroads, canals or public roads laid out by authority of the quarter sessions. In England a public road is called the king's highway; and though it is not usually called the commonwealth's highway here, "Over propei:;ty which a city or Boston, 158 Mass. 509, 511, 33 N. E. town has acquired and holds ex- 695, 35 Am. St. Rep. 515. clusively for purposes deemed 96. Beach, Monopolies and In- strictly public, that Is, which the dustrial Trusts, § 133, p. 412. city or town holds merely as an 97. Barney v. Keokuk, 94 U. S. agency of the state government 324; People ex rel. v. Supervisors, for the performance of the strictly 112 N. Y. 585, 20 N. B. 549; Davis public duties devolved upon it, the v. Saginaw Co., 89 Mich. 295, 50 legislature may exercise a con- N. W. 862. trol." Proprietors of Cemetery r. §227 Streets: Legislative Conieol. 515 it is so in contemplation of law, for it exists only by force of the commonwealth's authority."^* In the absence of constitutional restriction, therefore, the prevailing legal rule is, that the legislative control is paramount, subject to the property rights and easements of the abutting owner.^^ 98. O'Connor v. Pittsburg, 18 Pa, St. 187, 189, per Gibson, C. J. State control of streets is para- mount. "Because the highways are established by state authority for the general good, and because our laws make no distinction among them as to rural ways or urban streets or otherwise, * * * and because the legislature is the supreme authority in regard to public rights in the streets and highways, the legislature may pro- vide for the use of the highways in the state as well for through travel as for the through trans- mission of gas, water or other commodities from one place to another, without regard to the question of whether any munici- . pality through which the ways may pass or those who own the soil of the ways subject to the pub- lic easement therein are served or In any way benefited by such use." Cheney v. Barker, 198 Mass. 356, 364, 84 N. E. 492. "All lands are such solely by municipal law, which may estab- lish, regulate and destroy them at all times. All public easements are subject to extinguishment or control by legislative authority. * * * There can be no highway which is not made so by common or statute law, or which is not under public custody; and unless coming within some constitu- tional protection, there is none that can exist where the law has provided that it shall not exist." Horn V. People, 26 Mich. 221, 223, per Campbell, J.; People v. Ing- ham, 20 Mich. 95; People v. Jones, 6 Mich. 176. 99. Oeorgia. Marietta Chair Co. V. Henderson, 121 Ga. 399, 403, 49 S. E. 312. Illinois. Harder's Storage Co. V. Chicago, 235 111. 58, 77, 85 N. E. 245; Cicero Lumber Co. v. Cicero, 176 111. 9, 51 N. E. 758, \ 42 L. R. A. 696, 68 Ani. St. Rep. 155. Kansas. La Harpe v. Elm Twp. Gas. L., T. and P. Co., 69 Kan. 97, 103, 76 Pae. 448. Maryland. Baltimore v. Flack, 104 Md. 107, 64 Atl. 702. Minnesota. State ex rel. v. Board of Park Com'rs, 100 Minn. 150, 110 N. W. 1121, 9 L. R. A. (N. S.) 1045. Missouri. Buchan v. Broad- well, 88 Mo. 1. c. 36; A. & P. R. R. Co. V. St. Louis, 66 Mo. 228; State ex rel. v. Missouri & Kan. Tel. Co., 189 Mo. 83, 102, 88 S. W. 41. New York. Economic Power etc. Co. v. Buffalo, 128 N. Y. App. Div. 883, 112 N. Y. Supp. 1127, affirming 59 N. Y. Misc. 511, 111 N. Y. Supp. 443; People ex rel. v. Delany, 120 N. Y. App. Div. 801, 105 N. Y. Supp. 746; Wilcox v. McClellan, 47 N. Y. Misc. 465, 95 N. Y. Supp. 941; Reis V. New 516 Municipal Cobpoeations. §227 In view of state control, municipal corporations can- not, without legislative authority, confer the right to use the public streets and ways for the purpose of transport- ing gas, electricity, water, or for railroad purposes, or, indeed, for any purpose other than the ordinary uses ap- pertaining to such ways and which are open to all indi- viduals.^ General power to regulate, and control streets is ordinarily held to be insufficient.^ York, 188 N. Y. 58, 67, 80 N. E. 573, affirming 113 N. Y. App. Div. 464, 99 N. Y. Supp. 291. Oregon. Simon v. Northup, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171. Pennsylvania. Baird v. Rice, 63 Pa. St. 489; McKiin v. Phila- delphia, 217 Pa. St. 243, 246, 66 Atl. 340. United States. Columbus v. Union Pacific R. Co., 137 Fed. 869; Memphis v. Postal Tel. Cable Co., 139 Fed. 707. 1. Louisville and Nashville R. Co. V. Mobile, etc. R. R. Co., 124 Ala. 162, 26 So. 895; Potter v. Collis, 156 N. Y. 16, 50 N. E. 413; Beekman v. Third Ave. R. Co., 153 N. Y. 144, 47 N. B. 277; De- troit Citizens' St. Ry. Co. v. De- troit, Ry. Co., 171 U. S. 48, 18 Sup. Ct. 732. 2. Colorado. Denver & S. Ry. Co. V. Denver City Ry. Co., 2 Colo. 673. Florida. Florida, C. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 So. 692. Illinois. Chicago v. Evans, 24 111. 52. Kentucky. Covington, etc. Ry. V. Covington, 9 Bush. (Ky.) 127. New York. Potter v. Collis, 156 N. Y. 16, 50 N. E. 413. Oregon. Parkhurst v. Capital City R. Co., 23 Or. 471, 32 Pae. 304, 3 Cook, Corp. (4th Ed.), sec. 913. General grant of power to regulate streets, does not give power to grant to an individual license, by ordinance, to lay a railroad track across the public streets for his own use. State (Montgomery) v. Trenton, 36 N. J. L. 79; Davis v. New York, 14 N. Y. 506; S. P. Wilson v. Cun- ningham, 3 Cal. 241. General power, etc., over streets, held broad enough to permit the city to consent to the use of its streets for street' railway pur- poses by any company having the necessary franchise. Detroit Citi- zens' Street Ry. Co. v. Detroit, 64 Fed. Rep. 628, 12 C. C. A. 365, 22 U. S. App. 570. But where lands required for street have not been acquired in fee, but an easement only has been condemned, the municipal corporation has no power to ap- propriate them to the uses of a street railroad company. To au- thorize such use a legislative act is indispensable. Perry v. New Orleans, etc. R. R. Co., 55 Ala. 413, 28 Am. Rep. 740. Poles and wires. City has no implied power to permit erection of poles in streets. Brush Elec. L. Co. V. Jones, etc. Co., 6 Ohio Cir. Ct. Rep. 340. §227 Streets: Legislative Control. 517 Unless restricted by the State Constitution the legis- lature may grant the use of public streets and ways for the purpose above mentioned, \Vhether they have been dedicated by the owner of the fee,' established by pre- scription, or acquired in the exercise of the right of emi- nent domain;* and this without consent of the local 3. Alabama. Perry v. New Or- leans, etc. R. R. Co., 55 Ala. 413, 418 to 425, 28 Am. Rep. 740. Georgia. Savannah, etc. R. R. V. Savannah, 45 Ga. -602. Florida. State v. Jacksonville St. R. R., 29 Fla. 590, 10 So. 590. Louisiana. N. O. M. & C. R. Co. V. New Orleans, 26 La. Ann. 577. New Jersey. Allen v. Jersey City, 53 N. J. L. 522, 22 Atl. 257. Pennsylvania. Danville H. & W. R. Co. v. Com., 73 Pa. St. 29; Philadelphia & T. R. Co.'s Case, 6 Whart. (Pa.), 25, 36 Am. Dec. 202; Green v. Reading, 9 Watts. (Pa.), 382; Henry v. Pittsburgh & A. Bridge Co., 8 Watts & S. (Pa.), 85. Legislative control is only limited by the Constitution. In the absence of constitutional re- striction the legislative control is paramount, subject to the prop- erty rights and easements of the abutting landowners. Buchan v. Broadwell, 88 Mo. 31, 36; Atl. & Pac. R. R. Co. V. St. Louis, 66 Mo. 228; Perry v. N. O. & C. R. R. Co., 55 Ala. 413, 418-425, 28 Am. Rep. 740; Williams & Eggles- ton, 170 U. S. 304, 18 Sup. Ct. Rep. 617; Backus v. Depot Co., 169 U. S. 557, 18 Sup. Ct. Rep. 445. Liegislature may provide for construction of subway for rail- road tracks in a city, without city's consent, although the act Imposes a heavy debt on the city and to an extent deprives it of control of the streets. Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. Authority to tunnel streets may be granted by the legislature by implication. Baltimore & P. R. Co. V. Reaney, 42 Md. 117. State may exercise the power directly or devolve it upon city. Harrison v. N. O. Pac. Ry. Co., 34 La. Ann. 462, 44 Am. Rep. 438; Mercer v. P. Ft. W. & C. R. Co., 36 Pa. St. 99. Thus the legislature may vacate streets, etc., or authorize the mu- nicipal corporation to do so. Ap- peal of McGee, 114 Pa. St. 470, 8 Atl. 237. Where streets cannot be closed, etc. Ashby v. Hall, 119 U. S. 526, affirming Parchen v. Ashby, 5 Mont. 68, 1 Pac. 204. Highways are not private prop- erty of city and hence legislature may transfer their supervision to another governmental agency pro- vided there is no diversion of the use intended. Simons v. North- rup, 27 Oregon, 487, 40 Pac. 560, 30 L. R. A. 171. The legislature may make grants of franchises to use streets. People V. N. Y. & H. R. Co., 45 Barb. (N. Y.) 73, 26 How. Prac. 44. Legislature may transfer con- trol of streets, highways, etc., to park commissioners. People v. 518 Mtjnicipal Cokpoeations. § 228 i authorities.* In such case, the only right of control ■which the local corporation has is its police power of regnlation." The fact that municipal corporations are generally held liable for negligence "with reference to the manage- ment and control of their streets does not rest on the ground of ownership, or any property right therein, as is pointed out in other parts of this work.^ § 228. Power delegated to municipal corporation to regulate streets. Paramount legislative authority respecting streets and public highways has been delegated by virtue of state constitutions and statutes, to a large extent, to municipal corporations, but by almost unanimity of decision the courts hold that municipal corporations have no prop- erty in streets which is capable of being protected against the legislature. The powers granted to municipal corporations to con- trol streets and their uses within their limits are gen- erally very extensive, but the extent must be determined by the State Constitution, the charter of the particular corporation, and legislative acts applicable which operate as a limitation of state control.^ Walsh, 96 m. 232, 36 Am. Rep. 641; Mobile v. Loulsyille & Nash- 135. ville R. R., 84 -Ala. 119, 4 So. 106. The legislature may compel a The legislature may authorize city to reduce the grade of a obstructions in a city's streets street and may prescribe the de- which without such authorization tails for letting out the contract, may become nuisances. Balcer etc. People ex rel. v. San Fran- City Mutual Irr. Co. v. Baker Cisco, 36 Cal. 595, 601. City (Ore., 1911), 113 Pac. 9. 4. Atty. Gen. v. Consolidated 6. Chapter on Municipal Li- Gas Co., 124 N. Y. App. Div. 401, ability for Defective Highways. 407, 108 N. Y. Supp. 823. 7. Sometimes the right to use 5. Economic Power and Const. streets is conferred by legislative Co. V. Buffalo, 59 N. Y. Misc. 571, grant, coupled with municipal au- 111 N. Y. Supp. 443 ; State ex rel. thority. Murphy v. Chicago, 29 V. Eaot 5th St. Ry. Co., 140 Mo. 111. 279; JLexington & Ohio R. R. 539, 550, 41 S. W. 955; Transpor- v. Applegate, 8 Dana (Ky,) 289; Nation Co, V. Qticago, 99 V- S. Chapman v. Albany & S. R. R., 10 § 228 Streets : LEaisLATiyE Control. ' 519 The constitutions of many states limit the legislative authority over streets and public highways. Thus in Wyoming, "no street passenger railway, telegraph, tele- phone or electric light line shall be constructed within the limits of any municipal organization without the consent of its legal authorities."® So in Missouri, the general assembly shall not pass any local or special law granting to any corporation, association or individual the right to lay down a railroad track.^ Nor shall any law "be passed by the general assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, with- out first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchises so granted shall not be transferred without similar assent first obtained. ' ' ^'^ A constitutional provision that no law shall be passed by the legislature, granting the right to construct and operate a street railway within any city, town, or village, or upon any public highway, "without first acquiring the consent of the local' authorities having control of the street or highway proposed to be occupied by said rail- Barb. (N. Y.) 360; Adams v. Sara- nicipal authorities acting fairly toga R. R., 11 Barb. (N. Y.) 414; and without fraud. Glasgow v. Williams v. N. Y. Central R. R., St. Louis, 107 Mo. 198, 202, 17 S. 18 Barb. (N. Y.) 222. W. 743; State v. Clarke, 54 Mo. Vacating streets, power in city. 17; Springfield R. Co. v. Spring- Glasgow V. St. Louis, 87 Mo. 678. field, 85 Mo. 674; Atkinson v. Damages may be recovered Wykoff, 58 Mo. App. 86; Knapp- from city in vacating street, when, Stout & Co. v. St. Louis, 156 Mo, Heinrich v. St. Louis, 125 Mo. 343, 55 S. W. 104, reviews Mis- 424, 28 S. W. 626, 46 Am. St. Rep. souri cases. 490. 8. Const. Wyoming 1889, art. Likewise, where city abolishes XIII, § 4. sidewalk or unreasonably nar- 9. Const. Mo. 1875, art. IV, § rows it, directly affecting rights 53; of property owner. Naschold v. 10. Const, of Mo. 1875, art. Westport, 71 Mo. App. 508. XII, § 20. The vacating of a street under See Goodnow, Mun. Home Rule, charter powers Is wholly a ques- 61-63. tion of expediency for the mu- 520 MuNICIPAIi COBPOBATIONS. §228 way, ' ' does not withdraw from the legislature the power to charter street railways, but merely provides that the consent of the local authorities be first procured.^^ Local control of streets and public ways is fuUy recog- nized by state statutes. Thus in Missouri, while com- panies organized for the purpose of constructing and maintaining telephone or magnetic telegraph lines are authorized to set their poles, piers, abutnients, wires and other fixtures along, across or under any of the public roads, streets and waters of this state,' in such manner as not to incommode the public in the use of such roads, streets and waters ; yet any telegraph or telephone com- pany desiring to place their wires and other fixtures un- der ground, in any city, shaU first obtain consent from said city through the municipal authorities thereof.^* Finally, the supreme court of Missouri has concluded that the power which the' state primarily had over streets and highways in the state, or in any city of the state, has, in St. Louis, been transferred to that city, and that the general assembly has no power to authorize the construc- tion, operation or transfer of any street railway in St. Louis (or in any other city, town or village), without the consent of the city.^^ The City of St. Louis, for example, under its charter, is empowered to grant franchises, permitting railways, telegraph and telephone companies to use the streets and to regulate such use, as weU as all other use of every -character.^* Thus it appears that under the constitutions and stat- utes of some states the power which the central authority 11. San Antonio Tr. Co. v. pal Code of St. Louis, 1901 (Mo- Altgelt, 200 U. S. 304, 26 Sup. Ct. QuiUin) ; Julia Building Associ- 261. ation v. Bell Tel. Co., 88 Mo. 258; 12. Rev. Stat. Mo. 1909, § 3326. St. Louis v. Bell Telephone Co., 13. State ex inf. v. Lindell Ry. 96 Mo. 623, 10 S. W. 627; Knapp, Co., 151 Mo. 162, 183, 52 S. W. Stout & Co. v. St. Louis Trans- 248. fer Ry. Co., 126 Mo. 26, 28 S. W. 14. Charter, St. Louis, art. Ill, 627. § 26, par. 2, and notes, Munici- §228 Stbeets: Lkgislative Conteol. 521 primarily had over all highways, including urban ways, within its boundaries, has been transferred to its munici- pal corporations,^** and in such case, as we have seen, the legislature has no power to authorize the construc- tion, operation, or transfer of any street railway wholly within. any city of the state, without the consent of such city or its local authorities.^® The necessity of obtaining such consent to acquire privileges and franchises to use the streets is quite gen- eral. Ordinarily, the power to grant privileges or fran- chises to use the streets for any purpose other than for travel in the usual manner, and such uses as belong to such public ways, is vested in the municipal corporation or in its duly qualified electors.^'^ 15. Ghee v. Northern Union Gas Co., 158 N. Y. 510, 53 N. B. 692; Transportation Co. v. Chi- cago, 99 U. S. 635; Barnes v. Dist. of Columbia, 91 TJ. S. 540; Sinton V. Asbury, 41 Cal. 525. 16. State ex inf. v. Lindell Ry. Co., 151 Mo. 162, 183, 52 S. W. 248 ; A. & P. R. R. Co. v. St. Louis, 3 Mo. App. 315; Dubach v. H. & St. J. R. R. Co., 89 Mo. 483, 1 S. W. Rep. 86; Knapp, Stout & Co. V. Transfer Co., 126 Mo. 26, 28 S. W. 627. Sometimes full and complete jurisdiction and control over streets and highways is conferred upon the municipal corporation. When such is the case the local authorities may give or withhold franchises, as for a railroad, which necessarily involves the right to prescribe the terms and conditions upon which their as- sent is given. Northern Central Ry. Co. V. Baltimore, 21 Md. 93. The right to use the streets may be made subject to reasonable local regulations. State ex rel. Laclede Gas Light Co. v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798; Jersey City v. Jersey City & B. R. Co., 20 N. J. Bq. 360. Assent to be given without re- strictions, where legislative act does not authorize. Pittsburgh's Appeal, 115 Pa. St. 4, 7 Atl. 778. 17. Laws of Mo. of 1899, pp. 105, 106, require consent of prop- erty owners. See The Municipal Code of St. Louis (McQuillin), pp. 351, 352, §§ 58 and 59. Right to construct horse rail- ways in streets, etc., may be granted, also railways operated by steam. State ex rel. v. Corrigan C. Street Ry. Co., 85 Mo. 263; Sherlock v. K. C. B. Ry. Co., 142 Mo. 172, 43 S. W. 629, or elec- tricity. Granting the right to construct and operate railroad tracks through the streets is conferred by the charter exclusively on the mayor and municipal assembly to be* exercised by ordinance. Such right conferred by permit from the mayor is utterly void. Lock- 522 Municipal Corporations. §229 § 229. Same — aright is public. But "whatever rights the city may have over its streets, by virtue of constitution or statutes, its powers are essen- t;ially those of a trustee for the benefit of the cestid que wood V. Wabash Ry. Co., 122 Mo. 86, 26 S. W. 698. Control and supervision of streets may be delegated to the municipal corporation. Mont- gomery V. Parker, 114 Ala. 118, 21 So. 452, 62 Am. St. Rep. 95; Mc- Cain V. State, 62 Ala. 138; Brook V. Horton, 68 Cal. 554, 10 Pac. 204; Polack V. Trustees, etc., 48 Cal. 490. Gas pipes; consent of local cor- poration. Allegheney's Appeal (Pa. 1887), 11 Atl. 658; Philadel- phia Co. V. Freeport, 167 Pa. St. 279, 31 Atl. 571; Reading v. Con- sumer's Gas Co., 41 Leg. Int. (Pa.) 428; Philadelphia Steam Supply Co. V. Philadelphia, 41 Leg. Int. (Pa.) 252; Kalamazoo v. Kalamazoo, etc. Co., 124 Mich. 74, 82 N. W. 811. Pipes and wires. Pereria v. Wallace, 129 Cal. 397; 62 l>ac. 61; Wyandotte Electric Light Co. V. Wyandotte, 124 Mich. 43, 82 N. W. 821. City may authorize use of streets for poles, wires, etc.. If they do not materially obstruct the ordinary use of the street for travel. Abutting owner cannot enjoin such use. McWethy v. Aurora Electric L. & P. Co., 202 111. 218, 67 N. E. 9, affirming 104 111. App. 479. A telegraph or telephone com- pany may, in conformity ^iVa. law and ordinance, plant and maintain Its poles on the side- walk of a street. Julia Building, Assn. V. Bell Telephone Co., 13 Mo. App. 477; Schopp v. St. Louisf 117 Mo. 131, 22 S. W. 898; St. Louis v. Bell Telephone Co., 96 Mo. 623, 10 S. W. 197. See article on "Rights of Tele- graph Companies in Streets and Highways." 21 Alb. L. J. 44-46. The power granted by the char- ter "to regulate the use" of streets within its limits, extends to the right to regulate the erection of poles and stringing thereon of wires for the supply of electric light by private corporations to consumers* W. U. Tel. Co. v. Guernsey & Scudder Light Co., 46 Mo. App. 120. Under the statutes of the state and the charter and ordinances of the city, the erection of telegraph and telephone poles must be in such a manner as not to incom- mode the public in the use of such roads and streets. Gay v. Mutual Union Telegraph Co., 12 Mo. App. 485. But, Inconvenience to the pub- lic from the erection of telephone and telegraph poles cannot be rea- sonably avoided, and furnishes no ground for an injunction. Gay v. Mutual Union Telegraph Co., 12 Mo. App. 485. The right to erect telegraph and telephone poles in the streets of a city does not carry with it the right to erect broken and un- sightly poles. Forsythe v. Balti- §529 Streets: Legislative Control. 523 trust (the public), liberally construed for its benefit, strictly construed to its detriment. The doctrine is stated with great clearness in a New York case: "Whatever may be the quality or quantity of the estate of the city * * * in its streets, that estate is essentially public and not private property, and the city in holding it is the agent and trustee of the public, and not a private owner for profit or emolument. * * * more & Ohio Tel. Co., 12 Mo. App. 494. The erection of a telegraph pole so as to incommode the public gives an individual no right of action to abate the nuisance un- less he has sustained special dam- age. G-ay V. Mutual Union Tel. Co., 12 Mo. App. 485. Telephone companies may set their poles along public streets of cities, subject to regulation by ordinance as to the location and kind of posts, piers, and abut- ments, and the height of the wires. State ex rel. Bell Tele- phone Co. V. Flad, 23 Mo. App. 185. And where such companies have complied with all the lawful requirements, the board will be compelled by mandamus to issue a permit for the erection of poles on the streets. State ex rel. Bell Telephone Co. v. Flad, 23 Mo. App. 185. See Hannibal T. M. & K. Tel. Co., 31 Mo. App. 23. Power to grant for the Institu- tion of a telephone system in the city of Rochester, N. Y., is vested in the legislature. The power of the council in ' the premises is limited to the regulation under the police power of the manner in which the franchise shall be eTiercised. Barhite v. Home Tele- phone Co., 50 N. Y. App. Div. 25. Railroad tracks. Mobile v. Louisville & N. R, Co., 84 Ala. 115, 4 So. 106; Perry v. New Orleans, etc. R. Co., 55 Ala. 413, 28 Am. Rep. 740; New Orleans V. Steinhardt, 52 La. Ann. 1043, 27 So. 586. Location of tracl The constitutional provis- ions as to classification and prohibitions against special legislation, incorporated into our organic laws, as we 98. From report of New York relief." James C. Carter, Prest. commission, appointed in 1876, Nat. Conf. for Grood City Gov. Pro- whlch "included some of the ceedings, 1895, p. 302. ablest men in the state and Its re- In order to detect and correct port presented on March 6, 1877, certain evils growing out of mu- may be said to have become class- nlcipal government, state inspec- ical." 1 Bryce's Am. Com., pp. tion of local administrations has 609, 611, 612. been adopted in a few states, 99. Constant appeals to the Goodnow, Mun. Home Rule, pp. legislature to escape local misrule. 267-270. "The states have failed to enact Reports to the state by local of- good municipal codes and have ficers of local affairs at stated passed needless special city laws. times, has also been advocated. Yet in a large "vay state interven- Eaton, Government of Municipali- tion has been pecessary." Eaton, ties, p. 42 et seq.; Shaw, Mun. Government of Municipalities Gov. G. B. p. 68; Goodnow, Mun. (1899), p. 47. Prob., ch. VI. "The inhabitants of the cities 1. Cooley's Const. Lim. (7th plundered without limit by their Ed.), p. 2G5, 26G; Goodnow, Mun. own legislative bodies, have been Home Rule, ch. 4. compelled to fly to the state for § 243 Eeason foe Legislative Inteefbbewce. 549 have seen, have been so divergently construed that those really learned in the law cannot always tell what powers an^ duties were intended to appertain exclusively to the municipality.* 6, It also becomes necessary to invoke legislative action in order to ratify or correct certain unauthorized or doubtful corporate acts taken by the local authori- ties in cases of emergency.,* 7. The supposed necessity of legislative interference in local matters, in some instances, to use the language of Senator Bayard, is probably "discovered in the fer- tility of political invention or born perhaps of party necessity."* The decisions of the states wherein large cities exist, notably those of New York, New Jersey, Pennsylvania, Illinois, Indiana, Ohio, Michigan, California, Nebraska and Missouri, all disclose the greatest solicitude on the part of the several legislatures in endeavoring to attend carefully to the local needs and conveniences of the large cities. In a judicial opinion the chief justice of Michi- gan was once moved to remark that "the legislation on Detroit matters has been so often changed and so pecu- liar as to require great care in judging it."^ In 1874, in referring to material changes in the government of the county of New York in 1857 by state legislation, the court of appeals of New York observed: "As a reform in government the project was doubtless a failure; but as a means by which individ aal members of the two par- 2. § 170 ante and prior sec- 3. See § 214 ante, also chap- tions. ter on Public Improyements. Goodnow, Munic. Problems, at For example, see Hasbrouck v. p. 8, N. 2, refers to observations Milwaukee, 13 Wis. 37. of Church, J., in 62 N. Y. 459, and 4. Speech in U. S. Senate, Jan. on pp. 41 to 45 to article of E. J. 24, 1877, on the counting of the Blandin on the "Uniform Organl- electoral vote. nation for Cities in Ohio," and See Goodnow, Mun. Prob., p. 38. "Cleveland Conferences for Good 5. Per Campbell, C. J., in Met. City Government," p. 454, Police Board v. V7ayne County, 68 Mich. 576, 579. 550 Municipal, Cobpoeations. §243 ties were enabled to combine and enjoy the luxuries of power, patronage and plunder, it has proved a perfect success."® Eespecting the effect of such interference an intelligent writer says that "the continual interference of the legis- lature in purely municipal matters is gradually depriv- ing the cities of the United States of almost all local self-government, so far as the determination of the policy of the municipality is concerned. In those states where such central interference has been most marked, the people of the cities have very largely lost interest in municipal government, and whenever they desire to see some concrete municipal policy adopted, their point of attack is the state legislature rather than any local and municipal organ. '"^ Another remarks that "this inter- ference, though often prompted by a genuine desire to relieve a city from pressing evils, has tended very greatly 6. People V. Ingersoll, 58 N. Y. 1. c. 23, 24. Interference prompted for par- tisan political reasons. "There have, beyond question, been very many cases In which state legis- latures, namely for party reasons, have Improperly enacted laws for the regulation Of city affairs — have needlessly Intermeddled with their just liberty." Eaton, Government of Municipalities, p. 47. "Charters and charter amend- ments are passed (by the state legislatures) not only without pub- lic and local discussions, but also, in many cases, against the wishes of the local officials and local members of the legislature. Sometimes such legislation has had, ostensibly at least, the im- mediate object of remedying some municipal delinquency; but in juany cases the BSSt effeetlve motive has been to secure some partisan advantage for those In control of the state government, when the city officers belonged to another political organization; while in some instances such leg^ islation has been enacted through the worst kind of political job- bery, to confer privileges which could not be secured from the local authorities. By such means acts have been passed substituting state appointed officials for local officials, compelling cities to carry out expensive and unnecessary undertakings, and granting fran- chises in the public streets with little or no compensation to the city." J. A. Fairlie, "Problems in City Government," in Annals of the American Academy, XXVII, 1, p. 146. 7. Goodnow, Mun. Problems, pp. 38, 39. § 244 Absehtce of Okganic Laws Foebidding. 551 to lessen the sense of responsibility on tlie part of local officials, and upon the part of communities them- selves."* The very best safeguard against such unauthorized interference must be found in the people themselves. They should assume all responsibility in the conduct of local affairs and prevent such responsibility being placed on the central authority.® § 244. Result of absence of affirmative constitutional provisions protecting the right of local self- government. While the constitutions contain elaborate and precise provisions for the protection of life, liberty and private property, the fundamental right of local self-government is not so carefully guarded. The provisions herein con- sidered proiiibiting special legislation and legislation by classification, except in the manner prescribed, and the powers conferred upon certain cities to frame their own local governments and charters were unquestionably de- signed to secure to the municipalities within the state a full measure of local autonomy and administration.*" Because of the absence of express organic prohibition, as already indicated, judicial authority is not wanting which asserts in the broadest terms the plenary power of the legislature in all affairs of municipal administra- 8. From article of Seth Low, 456, 56 Pac. 53; Morton v. Broder- ex-mayor of Brooklyn, and of kk, 118 Cal. 474, 50 Pac. 644. Greater New York, on Munic. As said in a recent New Jersey Home Government, 1 Bryce's Am. case, "it is significant that the Com., ch. 52. whole of the Constitution may be 9. See observations of Morse, searched in vain for any specific J., In Atfy-General v. Detroit, 58 provision guaranteeing to the Mich. 213, 55 Am. Reps. 675, and People the right of local self- those of Sharswood, J., In government, or prohibiting the Durach's Appeal, 62 Pa. St. 491, legislature from exercising pow- 493, 494. Also Markley v. Mineral ers of local government through City, 58 Ohio St. 430, 440, 65 Am. the instrumentality of commls- St Rep 776 779 sions, however chosen." Booth v. 10. Seel'Bryce-sAm.Com.ch. ^''^"'T^ ^"^^ ^ w 'iVn/^n 52; Popper v. Broderlck, 123 Cal. """^/f ^^^^'f- ^f^ ^/^O)' '' N. J. L. — , 75 Atl. 455, 457. 552 Municipal Coepoeations. § 244 tion. This lias resulted, in part, from the complex character of the municipal corporation, and in part for other reasons, elsewhere given." The matter of checking legislative interference ha3 been further complicated by the too broad application of certain general rules of constitutional construction, which, in effect, utterly destroy the local and quasi-Tpri- vate character of these bodies. For example, it has often been asserted in general terms, that "the state legisla- ture has power to pass all laws not prohibited by the Constitution of the state or the Constitution of the United States;" 1^ that "where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the Constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to i,he judgment, patriotism and sense of justice of their representa- tives;"" that courts cannot declare a legislative act void because it is supposed to violate the natural, social or political rights of the citizen, unless it can be shown that such rights are guaranteed or protected by the Con- stitution ;i* and finally, that the court cannot substitute its own judgment for that of the legislature in any case where the Constitution has vested the legislature with power over the subject." Therefore, the usual conclu- sion (though not fully warranted, even adopting these 11. § 243 ante. 14. Cooley's Const. Llm. (6th 12. Cass County v. Jack, 49 Ed.), p. 197. Mo. 1. c. 199; Kelley v. Meeks, 87 15. Beebe v. State, 6 Ind. 501, Mo. 1. c. 400. 528. 13. Cooley's Const. Llm. (6tli "With the policy of the law, Ed.), 154. the wisdom or want of it in its The legislature- of the state enactment, we have no concern; "recognizes no restraints, and is that belongs to the domain of the 1 bound by none, except such as legislature. Our business is to are imposed by the Constitution. declare what is law and not to * • These limitations are make laws," is the rule of consti- created and imposed by express tiitlonal construction in Missouri, words, or arise by necessary im- State ex rel. v. Pond, 93 Mo. 618. pliestion." Sill v. Corning, 15 N, Y. 297, 303. § 245 PUEPOSB OF C03legislative act providing England and Wales to an uniform model, for the purpose of uniform- ity), in section 6 carefully pro- vides for the name of each munici- pal corporation under the new sys- tem, thus: "The body, or reputed body corporate, named in said schedules in connection with said borough, shall take and bear the name of the mayor, aldermen, and burgesses of such borough, and by that name shall have per- petual succession, and shall be capable in law, by the council hereinafter mentioned of such borough, to do and suffer all acts which now lawfully they and their successors respectively may do and suffer by any name or title of incorporation," etc. Since this enactment, the corporations men- tioned in the schedules can only sue and be sued, accept and grant, by their proper statutory name. Grant, Corp., 341, 342. See § 59 supra. In all boroughs within the Eng- lish statute, the proper style of the corporation is "Mayor, Alder- men and Burgesses of the Borough of ." In cities, the proper style Is "Mayor, Aldermen, and Citizens of the city of ." 45 and 46 Vict. ch. 60, § 8; Atty. Gen. v. Worces- ter, 2 Phillips, 3 ; Rochester v. Lee, 15 Simons 376. The effect of these provisions is to preserve the identity and con- tinuity of a corporation. Govern- ors of Bristol Hospital v. Norton, 11 M. & W. 928; Attorney General V. Kerr, 2 Beav. 420; Ludlaw Cor- poration V. Tyler, Y. C. & P. 537. In all actions and prosecutions and in all formal documents the title of the corporation, as above, should be used, and not that of the council by which the corpora- tion acts. Arnold's Mun. Corp. (5th Ed. London) p. 9. 21. Alabama. Douglass v. Bank, 19 Ala. 659, 662. Illinois. Chicago v. Peck, 196 111. 260, 63 N. E. 711. Kentucky. Harrodsburg v. Har- rodsbm-g Water Co., 23" Ky. L. Rep. 956, 64 S. W. 659. Maine. Preachers Aid Society V. Rich, 45 Me. 552, 558. Massachusetts. Minot v. Boston Asylum, 7 Met. (Mass.) 416; Tuck- er V. Seaman's Aid Soc, 7 Met. (Mass.) 188. Maryland. Vansant v. Roberts, 3 Md. 119, 128. Missouri. St. Louis Hospital Assn. V. Williams, 19 Mo. 609, 612. J^ew HampsMre. Chapin v. School Dist, 35 N. H. 445; Pierce V. Somersworth, 10 N. H. 369, 376; Society, etc. v. Young, 2 N. H. 310. New Jersey. N. Y. An. Conf. M. M. A. S. T. Clarkson, 8 N. J. Eq. 541. §250 Variation in Coeporate Name. 569 that the title to land condemned for a public park shall vest in "the people of the county" is not void for un- certainty and vagueness because of the fact that the people of the county do not constitute any recognized New Yorlc. New York Institute V. How, 10 N. Y. 84. Ohio. Milford, etc. Co. v. Brush, 10 Ohio 111, 36 Am. Dec. 78. Pennsylvania. In re La Parte, 26 Pa. Super. Ct. 333. Rhode Island. Compare Provl- (Jence v. Miller, 11 R. I. 272, 23 Am. Rep. 455. England. Counden v. Clarke, Hobart, 32; Croydon v. Hospital Farley, 6 Taunt. 467. 1 Kyd. Corp. 256; 2 Kent, 292. Misnomer of a corporation in a grant or obligation, will not pre- vent a recovery upon it in the true name, provided the corporation designed and intended by the par- ties to the instrument be shown by proper and apt averments and proof. Alloway Creek v. String, 10 N. J. L. 323, 324; Bower v. Bank of the State, 5 Ark. 234. "Though a corporation can only act by its corporate name, which is the knot of its political exist- ence, a variance from it is not necessarily fatal. If enough be ex- pressed, even by a synonym, to show with convenient certainty that the particular body is meant to be distinguished from all oth- ers, the instrument will take effect." Clarke v. Potter County, 1 Pa. St. 159, 163, Per Gibson, C. J.; New York African Society v. Var- ick, 13 John (N. Y.) 38. "I take the law of the present day to be that a departure from the strict style of the corporation will not avoid its contracts. If it substantially appear that the par- ticular corporation was intended; and that a latent ambiguity may under proper averments, be ex- plained by parol evidence, in this, as in other cases, to show the intention." Berks, etc. Road v. Myers, 6 S. & R. (Pa.) 12, 17. Where, in bonds executed by the Board of Education of the Town of Minneapolis, the board is not named by its corporate name in the ensealing clause, but several officers of the board are named by their titles, the bonds are valid, the body of the bonds, being in the name of the board. Wiley et al. v. Board of Educa- tion, 11 Minn. 371. Under an act making all incor- porated towns of not more than 2000 inhabitants, cities of the third class and providing that "the corporate name of each city governed by this act shall be 'The City of ,' " a defense to an indictment on the ground that the ordinance under which the indict- ment was brought was enacted by "The City of Columbus" and not by "The City of the Inhabit- ants of the Town of Columbus" is not good. The former name of the municipality was, "The Inhab- itants of the Town of Columbus." There is no misnomer and the or- dinance is valid. West v. Colum- bus, 20 Kan. 633. Variation from the true name in a contract, does not defeat the contract, if it appears that the 570 MxTNiciPAL Corporations. § 250 legal or political body.^* So a bond "to the Municipal Council of the Brock District," when the true name was ths "Council of the District of Brock" was held good.^^ So a bond, to the "Commissioners of the County," instead of the county by its true corporate name, was adjudged good.** So bonds of "the town of P ■ " are valid against "the village of P ." *® So a by-law which expressed on its face to be passed by the "Municipality r)f Y." when in fact the corporate name is "The Munic- ipality of the Township of V." was held good.*^ "The State of California," and "the people of the State of California," describe the same party, and a stat- ute which requires a bond to be given in one name is satisfied by a bond given in the other.^'^ So "the com- mon council of N." is identical with the corporation of the village of N.*^ A devise, intended for "The First Parish in S" is good although made in terms to "The South Parish in S."*® So a devise "to the county of Owen, in the State of Indiana," in trust, is a sufficient designation, although the full corporate name is "The Board of Commissioners of Owen County. " *" So a deed corporation was Intended to be 26. Fisher v. Vaughan, 10 Up. described. Athearn v. Millers- Can. Q. B. 492; Brophy and the burg, 33 Iowa 105, 108. Corporation of Gananoque, 26 Up. When misnomer of corporation Can. C. P. 290 ; Hawkins v. Municl- will not defeat tax against it, see pal Council, etc., 2 tJp. Can. C. P. Farnsworth v. Rand, 65 Me. 19; 72. St. Louis V. Wennecker, 145 Mo. 27. People v. Love, 19 Cal. 676? 230, 47 S. W. 105. Tevis v. Randall, 6 Cal. 632.' 22. St. Louis County v. Gris- 28. Hathaway v. Sackett, 32 wold, 58 Mo. 175, 191, 200; Patter Mich. 97, 103. V. Chapin, 6 Paige (N. Y.) 649. 29. First Parish of Sutton v. 23. Brock Dist v. Bowen, 7 Up. Cole, 3 Pick (Mass.) 232. Can. Q. B. 471 ; Whitby Tp. v. Har- A bequest to a trustee in the risen, 18 Up. Can. Q. B. 603. wrong name may be explained and 24. Clarke v. Potter County, 1 the corporation may be identified Pa. St. 159. by its proper name. South New 25. Frosdick v. Perrysbungh, 14 Market Seminary v. Peaslee, 15 N. Ohio St. 472; Lane v. State, 39 H. 317, 326. Ohio St. 314; People ex rel. v. 30. Craig v. Secrist, 54 Ind. 419, A. B. Pike Nal., 197 111. 449, 64 425. N. B. 393. §251 Vakiation in Cobpoeate Name. 571 designed for the Kentucky Seminary is valid made to Kentucky Academy," So a devise to the "Eight Wor- shipful the Mayor, Jurats and Town Council of the ancient town of Eye, for the time being, and their succes- sors forever," is good, although the true corporate name is "The mayor, jurats and commonalty of the ancient town of Eye." 32 Devises to corporations are often made by description of the corporation instead of by name, which have been held valid, where the description is sufficiently full to clearly identify the corporation intended.^^ The fact that the name adopted by a village in its organization was "The Town of Campbell Hill" did not invalidate the organization.^* § 251. Actions — variance. Suits should be brought by or against the corporation in its proper name and not by or against the individuals composing it, or the council, or its officers, or its cor- porate authorities-^** While, as a general rule, courts will take judicial notice of charters and legislative acts, the corporate name of a city incorporated under general laws which do not pre- scribe a name but allow the city to select its own name cannot be judicially known. Where the city has been in existence and has acquired a name and surrenders its former charter and incorporates imder general laws the 31. Kentucky Seminary v. Wal- 119; New York Institution v. How, lace, 15 B. Mon. (Ky.) 35, 45. 10 N. Y. 84. A corporation may take by name 34. People v. Pike, 197 111. 449, of reputation, as well as by true 64 N. E. 393. name. Society, etc. v. Young, 2 35. Illinois Insane Hospital v. N. H. 310. Higgins, 15 111. 185; Porter v. 32. Attorney General v. Rye, Blakely, 1 Root (Conn.) 440. 7 Taunton 1 Moore (C. P.) 267. Mayor can not sue, as such, in 33. Preachers Aid Society y. his name. Anderson v. Brumby Rich, 45 Me. 552; Bodman v. Am. (three cases), 115 Ga. 649, 42 S. E. Tract Society, 9 Allen (Mass.) 77. 447; Van Sant v. Roberts, 3 Md. 572 MtTNlCIPAL COBPOEATIONS. § 252 court will presume that the former corporate name was retained.*® In one case where the charter incorporated the city under the name of the City of Q, but another section declared that the municipal government is vested in a mayor and aldermen, "who shall be styled the mayor and council of the City of Gr, and*by that name are hereby made a body corporate ; as such they * * * may sue and be sued," it was held that a suit against "the mayor and council of the City of G" was well brought.*^ In another case the legislature incorporated "a town under the name of the Town of Dexter," and declared that the municipal government of such town shall be vested in a mayor and five aldermen, who shall be styled "The mayor and aldermen of Dexter, and by that name are hereby made a body corporate," and as such may sue and be sued, it was adjudged that such town can only be sued in the name last referred to, and a suit brought against the "Town of Dexter" should be dismissed on demurrer.*^ And in another case where the charter did not, in express terms, confer a corporate name, but vested the authority of the corporation in the town council, an action against the intendant and wardens of the town council of Y was held proper.^* § 252. Same. A nonessential variance in the name of the corpora- tion in a suit is immaterial.^" There is a well marked distinction between a misnomer which incorrectly names 36. Johnson v. Indianapolis, 16 R. Co. v. Tennille, 119 Ga. 804, 47 Ind. 227. S. E. 179. 37. Mayor, etc. v. Caldwell, 81 38. Dexter v. Gay, 115 Ga. 765, Ga. 76. 42 S. E. 94. In a similar case, held that suit 39. Neely v. Yorkville, 10 S. C. should be in corporate name. Ro- 141. nieb V. Chapman, 2 Mich. 179. 40. People v. Runkle, 9 John See Boon v. Jackson, 98 Ga. (N. Y.) 147. 490, 25 S. E. 518; Augusta So. §252 Vaeiation in Coepoeate Name. 573 a corporation, but correctly describes it, and the state- ment in the pleading of an entirely different party.*^ Where a bond has been executed in a name varying from the true name the corporation may sue in the true name and aver the execution of the bond to it.** Thus in a suit upon certain bonds issued in the name of the ' ' Town of L " where the true corporate name was aver- red to be "The Inhabitants of the Town of L," and where it was further averred that the municipality was common- ly known as "The Town of L," and that the bonds were issued by ' ' The inhabitants of the Town of L, " in and by the name of the Town of L, the petition was held good on demurrer.** 41. Stafford v. Bolton, 1 Bos. & Pul 40; Smith v. Central Plank Road Co., 30 Ala. 650, 663; Doe v. Norton, 11 M. & W. 913, 928. 42. McMinn Academy v. Ren- eau, 2 Swan (Tenn.) 94, 99. 43. Clement v. Lathrop, 18 Fed. S85. Declaration upon a note to the Med way Cotton Manufactory by the name of Richardson, Metcalf & Company held good on demur- rer. Medway C. M. Co. v. Adams, 10 Mass. 360. Fatal variance. Declaration avered that bona sued on was payable to "The President and Trustees of the Town of Fort Wayne," wherein It was payable to "The President of the Fort Wayne corporation," held vari- ance fatal. Fort Wayne v. Jack- son, 7 Black (Ind.) 36. The mayor, aldermen and com- mons in common council assem- bled, are not sufficiently described by the mayor and commonalty and citizens, though in fact the latter Include the former. Rex. v. Croke, Cowp. 29. "Corporation of Toronto" Insuf- ficient to designate the corpora- tion of the City of Toronto. Sams V. Toronto, 9 Up. Can. Q. B. 181. Suit on bond — variance. Bev- erley V. Barlow, 10 Up. Can. C. P. 178; Goodwin v. Ottawa & P. Ry., 13 Up. Can. C. P. 254. Suit in the name of "the town of Opelousas on the relation of the president and board of police of said town," is equivalent of suit in the name of "the board of police of the town of Opelousas," which is the proper corporate ti- tle. Opelousas ex rel. v. Andrus, 37 La. Ann. 699. Effect of misnomer. Connecticut. Porter v. Blakely, 1 Root (Conn.) 440. Illinois. Insane Asylum v. Wig- gins, 15 111. 185. Kentucliy. Seminary v. Wallace, 15 B. Mon. (Ky.) 35. Michigan. Romeo v. Chapman, 2 Mich. 179. North Carolina. Brlttan v. New- land, 2 Dev. & Bat. (N. C.) 363. Ohio. Carder v. Comra., 16 Ohio St. 353; Trustees v. Campbell, 16 Ohio St. 11. Pennsylvania. Berks Co., etc. v. Myers, 6 Serg. & R. (Pa.) 12. 574 Municipal Cobpoeations. §§253, 254 § 253. Same — amendment. Mere misdescription or misnomer of a body corporate in legal proceedings may, on proper application be amended ; * ' but where the body corporate mentioned does not in fact exist, an objection taken on that ground goes to the root of the whole proceedings, which are, there- fore, bad, unless amended. The court cannot, however, take judicial notice that the corporation which appears on the record does not exist." ** § 254. Change of name. Unless authorized by laV a corporation, unlike an in- dividual,*** cannot change its name either directly or in- directly, or by user, without legislative sanction.*® A name given to a corporation may be repealed by a subsequent legislative act conferring a different name; 44. 8 The Laws of England (Halsbury), p. 308, par. 695. 45. Change of name. It ap- pears that an individual may- change ills name without direct authority of law and be known by such name, provided the change of name has not been made for a fraudulent object. England v. New York Publishing Co., 8 Daly (N. Y.) 375; Hygenla, etc. Co. v. New York, etc. Co., 19 N. Y. S. 602. "No person Is bound to accept his patronymic as a surname, nor his Christian name as a given name, though the custom to do BO is almost universal among En- glish speaking people who have Inherited the common law." Sco- field V. Jennings, 68 Ind. 233. "A name assumed by the vol- untary act of a young man at his , outset in life, adopted by all who / know him, and by which he is constantly called, becomes, for all the purposes that occur to my friend, as much and effectually his name as if he had obtained an act of Parliament to confer it on him." Per Abbott, C. J., in Doe v. Yates, 5 Barn & Aid. 544. But Judge Dillon says: "If a particular name be given to a cor- poration in its charter the cor- poration can no more change it at its pleasure than a man can at pleasure change his baptismal name." 1 Dillon, Mun. Corp. (5th Ed.), § 345. 46. Sykes v. People, 132 HI. 32; Girard v. Philadelphia, 7 Wall. (U. S.) 1; In re Stroubsberg, 9 Pa. Co. Ct. 529; Episcopal, etc., Society v. Episcopal Church, 1 Pick. (Mass.) 372. A change of name of districts In England. Arnold's Mun. Corp, (5th Ed., London), p. 407. §254 Change of Corpobate Name. 575 for, as we have seen, a corporation created by legislative act cannot have two legal names.*'' Usually the law makes provision for change of name,** Some statutes provide that this may be accomplished by a majority vote of the qualified electors of the city,** while others provide that it shall be done by petition, no- tice and public hearing.^" A change of name will not dissolve nor destroy the identity of the corporation, nor affect its rights, privi- leges or liabilities.^* Hence, an action against the corpora- 47. Alaiama. State v. Mobile, 24 Ala. 701. Kansas. West v. Columbus, 20 Kan. 633. Massachusetts. Middlesex, etc. V. Davis, 3 Mete. (Mass.) 133. New Hampshire. Trustees v. Peaslee, 15 N. H. 317; Society, etc. V. Young, 2 N. H. 310. New Tork. All Saints Churcli v. Lovett, 1 Hall (N. Y.) 191; Dutch- ess Manufacturing Co. v. Davis, 14 Johns. (N. Y.) 238, 7 Am. Dec. 450. North Carolina. State v. Cooper, 101 N. C. 684, 8 S. E. 134. West Virginia. Rece & N. N. S. M. V. Co. V. Newport, etc. Co., 32 West Va. 164. England. Attorney General v. Worcester, 2 Phillips, 3; Knight V. Wells, 1 Ld. Raym. 80. The English Courts have fully settled that although the name of the corporation be changed by the operation of the act, the ef- fect of the statute is not to create a new corporation in any case, but merely to continue the old corpo- ration, so that all the rights, claims, franchises, privileges, pre- scriptions and customs, as well as all the debts, liabilities and duties of the corporation as it stood on the day the statute was passed, remain and inhere in the re- modeled corporation, so far as they are not contrary to, or in- consistent with, the provisions of the act. Atty. Gen. v. Leicester, 9 Beav. 546; Atty. Gen. v. Wilson, 9 Sim. 30; Ludlowe v. Tyler, 7 C. & P. 537; Atty. Gen. v. Kerr, 2 Beav. 420, 429; Atty. Gen. v. New Castle, 5 Beav. 314; Grant, Corp. 342. 48. When legislation respecting incorporation, etc., does not change the name of a prior town organization, see West v. Colum- bus, 20 Kan. 633. When court will decline to sanc- tion change of name that would be misleading, see In re East Stroudsburg Borough, 9 Pa. Co. Ct. Rep. 529. 49. Iowa Code, 1897, §§ 628, 630; Civil Code, Ala., 1896, § 2967. 50. Kurd's Rev. Stat. 111., pp. 305, 306. 51. Girard v. Phila., 7 Wall. (U. S.) 1, 13; 1 Starr & Curtis Anno. 111. Stat. pp. 809-810; Wal- nut Tp. V. Jordan, 38 Kan. 562; Woodson V. Skinner, 22 Mo. 13. 576 Municipal Cokpoeations. §254 tion in its former name cannot be defeated by showing a change of name pendente lite.^^ The statutes usually make provision for continuing suits after a change of name, but if no provision be made the suit may proceed in the new name. In general, all actions by or against the corporation after the change of name should be in the new name.*' 52. Welfley v. Shenandoah, etc. Co., 83 Va. 768; Olney v. Harvey, 5G 111. 453. 53. 8 The Laws of England (Halsbury), p. 308, par. 694. What is -not a change. The oc- casional addition of the word "Texas" to the name of a city in the State of Texas, is merely description of the locus of the city and does not alter the coi^ porate name or affect Its legality. Ex parte Keeling, 54 Tex. Cr. R. 118, 121 S'. W. 605. On division, different names. Where a county seat borough is divided into two boroughs, the part containing the county build- ings may be given a different name from the original. In re La Porte, 26 Pa. Super. Ct. 333. §255 Corporate Seal. 577 CHAPTEE 6. CORPORATE SEAL. Sec. 255. Use of seal in general. 256. When required. Sec. 257. Sufficiency of seaL 258. Proof of seal. § 255. Use of seal. At common law the rules respecting the use of seals on instruments were unduly rigid. It is a matter of com- mon knowledge that this ancient strictness has almost wholly disappeared from the modem law. In many states, by statute, the use of private seals in written in- struments, formerly required by law to be sealed, except the seals of corporations, has heen abolished.^ Generally, each municipal corporation is empowered by its charter or law applicable to adopt and use a seal which it may break or alter at pleasure.* However, in 1. R. S. Mo. 1909, § 2773; State V. Tobie, 141 Mo. 547; Bosley v. Bosley, 85 Mo. 424. Use of seal at common law. It was an ancient and tecbnical rule of the common law that a cor- poration could not manifest its In- tention by any personal act or oral discourse, and that it spoke and acted only by its common seal. Afterwards the rule was re- laxed, and, for the sake of con- venience, corporations were per- mitted to act, in ordinary matters, without seal, as to retain a ser- vant, cook or butler. 2 Kent. Com. 288. The old rule was essentially dis- carded by the Supreme Court of the United States in Bank of Col- umbia V. Patterson, 7 Cranch. (U. S.) 299, where it was held that whenever a corporation aggregate was acting within the scope of its 1 McQ.— 37 powers, all parol contracts made by its duly authorized agents, were express and binding prom- ises of the corporation. Subse- quently this court decided that a bank and other commercial cor- porations 'might bind themselves by the acts of their authorized officers and agents, without the corporate seal. Pleckner v. U. S. Bank, 8 Wheaton (U. S.) 338; Os- born V. U. S. Bank, 9 Wheaton (U. S.) 738. "It is the fixing of the seal and that only which unites the sev- eral assents of the individuals who compose the community and makes one joint assent of the whole." 1 Bl. Com. 475. 2. Charter of the City of St. Louis, art. 1, § 1; The Revised Code of St. Louis, 1907 (Woerner), p. 294; 2 R. S. Mo. 1909, § 8541, 8875, 8924, 9143, 9299. 578 Municipal Coepoeations. §256 absence of express grant authority to use a seal may be implied.' The chief purpose of the seal being to identify docu- ments, the saine rules as to its use would seem to apply to both public and private corporations.* § 256. When seal required. Generally, all ordinances or by-laws and corporation documents are attested by seal;" however, it is usually held that sealing is not necessary in order to validate ordinary corporate contracts unless the charter or gen- eral law applicable expressly so requires.® "Corporate seal," in England, means the common seal of a mu- nicipal corporation. Arnold's Mun. Corp. (5tli Ed., London), p. 6. Consent of the corporation Is expressed hy seal. Arnold's Mun. Corp. (5th Ed., London), pp. 116, 117. 3. 8 The Laws of England (Halsbury), p. 309; Sutton's Hos- pital Case, 5 CGke's Rep., part X, 10 Rep. 10. "Corporate seal" means the common seal of a municipal cor- poration in the English law, 45 and 46 Vict. c. 50, § 7. 4. Seal ordinarily Imparts a consideration. Montgomery Coun- ty vl Auchley, 103 Mo. 492, 15 S. W. 626, and renders a contract a specialty. Oilman v. School Dist., 18 N. H. 215. A statute prohibiting the use of the great seal of the common- wealth as a trade-mark by a pri- vate individual is constitutional and an individual or corporation cannot acquire a property right in such seal as against the common- wealth. Commonwealth v. R. I. Sherman Mfg. Co., 189 Mass. 76, 75 N. B. 71. 5. Ordinances attested by seal. R. S. Mo. 1909, i§ 8903, 9083, 9708; Eichenlaub v. St. Joseph, 113 Mo. 395. 6. Alaiama. Alabama Univer- sity V. Moody, 62 Ala. 389. Arkansas. Halbut v. Forest City, 34 Ark. 246. California. Gordon v. City of San Diego, 101 Cal. 522, 32 Pac. 885. Illinois. Maher v. Chicago, 38 111. 266; Kinzie v. Chicago, 3 111. 188; Bestor v. Powell, 7 111. 126. Indiana. Over v. Greenfield, 107 Ind. 231, 5 N. E. 872; Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Sheffield School Tp. v. An- dress, 56 Ind. 157. lovM. Springer v. Clay County, 35 Iowa 243; Prescott v. Gonser, 34 Iowa 178; Davenport v. Peoria F. & W. Ins. Co., 17 Iowa 276; Ring V. Johnson County, 6 Iowa 265, 269. Kentucky. Guffleld v. Bowling Green, 6 B. Mon. 224; Frankfort Bridge Co. v. Frankfort, 18 B. Monroe (Ky.) 41. MassachViSetts. Rumford Fourth School District v. Wood, 13 Mass. 193; Adams v. Farnsworth, 15 §256 When Seal Eequiked. 579 Some statutes reqiiire seals, to render valid warrants or bonds issued by public corporations, and if not so affixed such instruments may be declared defective and Gray (Mass.) 423; Colman v. An- derson, 10 Mass. 105. Michigan. Attorney General v. Jochim, 99 Mich. 358, 58 N. W. 611; Cicotte v. Church, 60 Mich. 552; Wayne County v. Detroit, 17 Mich. 390. Mississippi. Board of Education V. Aberdeen, 56 Miss. 518. Missouri. Geary v. City of Kan- sas, 61 Mo. 378; Sandford v. Trem- lett, 42 Mo. 384. New BampsUire. Canaan v. De- rush, 47 N. H. 212; Lebannon v. Heath, 47 N. H. 353. New York. Clark v. Farmers', etc. Co., 15 Wend. (N. Y.) 256; Mott V. Hicks, 1 Cowan (N. Y.) 513; Randall v. Van Vetchen, 19 Johns. (N. Y.) 60, 10 Am. Dec. 193; Am. Ins. Co. v. Oakley, 9 Paige (N. Y.) 259, 38 Am. Dec. 561; Dunn v. Rector, etc., 14 Johns. (N. Y.) 118; Perkins v. Washington Ins. Co., 4 Cowan (N. Y.) 645; Peterson v. Mayor, etc. of N. Y., 17 N. Y. 449. Pennsylvania. Dunlap v. Water Commissioners of Erie, 151 Pa. St. 457, 25 Atl. 60, 31 W. N. C. 241; Maglll V. Kaufmann, 4 Serg. & R. (Pa.) 317, 8 Am. Dec. 713. South Carolina. City Council of Charleston v. Moorhead, 2 Rich. Law (S. C.) 430. Texas. Bryan v. Page, 51 Tex. 532, 32 Am. Rep. 637. Vermont. Gassett v. Andover, 21 Vt. 342; Shrewsbury v. Brown, 25 Vt. 197. Virginia. Legrand t. Sidney Col- lege, 5 Mumf. (Va.) 324. United States. Smeltzer v. White, 92 tJ. S. 390; Columbia Bank r. Patterson, 7 Cranch. (U. S.) 299; Kentucky Bank V. Wister, 2 Peters (U. S.) 318; U. S. Bank v. Danbridge, 12 Wheat. (tJ. S.) 64; Draper V. Springport, 104 U. S. 501, 26 L. Ed. 812; First National Bank V. Salem, etc. Co., 39 Fed. 89; Sturtevants' v. Alton, 3 Mc- Lean 393; District of Columbia v. Johnson, 3 Mackey (D. C.) 120. Canada. Bernardin v. North Duf- ferin Municipality, 19 Can. Sup. Ct. 581. England. When required^ see Ar- nold's Mun. Corp. (5th Ed., Lion- don), pp. 116, 119. When seal required. The seal of a corporation need not be at- tached to a petition for an im- provement to make its signing ef- fective. Allen V. City of Port- land, 35 Ore. 420, 58 Pac. 509. A contract made by the commis- sioners of the District of Colum- bia, to which the corporate seal of the District is not attached is binding on the District. District of Columbia v. Camden Iron Works, 181 U. S. 453, 45 L. Ed. 948, 2i Sup. Ct. Rep. 680. A municipal corporation is bound by an instrument bearing a seal other than the regular cor- porate seal, if the same was af- fixed by a duly authorized offi- cer of the corporation. District of Columbia v. Camden Iron Works, 181 U. S. 453, 21 Sup. Ct. Rep. 680, 45 L. Ed. 948. 580 MUNICIPAI, COBPOBATIONS. §256 void.'' Tlius a statute requiring bonds issued by a town to be under the hands and seals of the commissioners, is not sufficiently complied "with if the bonds issued there- under are not sealed, and bonds so issued are void.^ Other cases hold that the want of a seal will not invali- date warrants otherwise legal.® The use of the seal is Submission of disputed contro- versy need be under seal. Brady V. Brooklyn, 1 Barb. (N. Y.) 584. Promissory notes. Municipal and gwasi-public corporations raay make promissory notes. SheflSeld School Township t. Andress, 56 Ind. 157; Ketcbum v. The City of Buffalo, 14 N. Y. 356; The Evans- ville, etc. R. R. Co. v. The City of Evansville, 15 Ind. 395; Clarke t. School District No. 7, 3 R. I. 199. The inability of a (municipal) corporation to make a promissory note at common law was due to the fact that a corporation could not make a parol contract and promissory notes were parol con- tracts. Chitty, Con. 22. "Corporations now can make contracts within the scope of their powers, in writing as for- merly, with the seal omitted, and the signature of the proper officer or agent of the corporation sub- stituted." Sheffield School Town- ship V. Andress, 56 Ind. 157 at p. 162. 7. Smeltzer v. White, 92 U. S. 390; Prescott v. Gonser, 34 Iowa 175, 178; Springer v. Clay County, 35 Iowa 241, 243; Heffelman v. Pennington County,' 3 S. Dak. 162, 52 N. W. 851. Lease executed by "Trustees of the town of Chicago," without corporate seal, held void. Kinzio V. Chicago, 3 111. 187, 33 Am. Dec. 443. A tax collector is liable for moneys withheld although the warrant under which he acts Is not under seal. Nason v. Fowler, 70 N. H. 291, 47 Atl. 263. 8. Avery v. Springport, 14 Blatchf. (N. Y.) 272. 9. Crudup T. Ramsey, 54 Ark. 168; Goldman v. Conway County, 10 Fed. Rep. 888; Pelton v. Craw- ford County, 10 Wis. 69; Solon v. The Williamsburgh Savings Bank, 35 Hun 1. The omission of the seal from bonds otherwise regular does not release a city from liability. San Antonio v. Mebaffy, 96 U. S. 312. To the same effect. Draper v. Springport, 104 TT. S. 501, 26 L. Ed. 812; Gould v. Town of Venice, 29 Barb. (N. Y.) 442. A municipality cannot avail it- self of its own failure to affix the seal to its bonds as a defense to the bonds. Gould v. Tovm of Venice, 29 Barb. 442; Bernards Township v. Stebbins, 109 U. S. 341, 3 Sup. Ct. Rep. 252, 27 U Ed. 956. An act directing commission- ers to issue bonds "under their of- ficial signatures," is sufficiently complied with by instruments not under seal. People v. Mead, 24 N. Y. 114. §257 Seal: Necessity AND SuFFioiENCT. 581 regarded as a matter of form, and tlie statutory require- ment as merely directory, not essential.^" Thus where the bonds of a city are executed without a seal, though the city had a seal, the bonds are not invalid.^^ So where the board of education of a city issued bonds which were signed by several officers who affixed scrolls for seals opposite their names it was decided that' the annexation of such scrolls did not vitiate the bonds nor render the signers personally liable. And the repetition of the seal was held not material.^^ In a Texas case the law prescribed that in accepting a charter under a legislative act, a copy of the proceedings should be authenticated under the corporate seal, filed, etc. The particular city had no seal, although it had been a corporation for twenty years. Here it was held that the provision as to sealing was merely directory.^^ § 257. Sufficiency of seal. The ancient strictness of the proof of the seal, being the devise and the seal adopted by the corporation, has been greatly relaxed.^* By some statutes "a scroll by way of seal" is of the same force as if actually sealed, and this rule applies to corporations, in like manner as to individuals.^" It has been held that the seal may be of any device or a paper and wafer, without any mark.^* So an impression of the seal of a corporation stamped upon and into the substance of the paper on which the instrument is written which is designed to be sealed has been held to be a good seal, although no wax, wafer or other adhesive substance is used.^'^ In the early 10. Draper v. Springport, 104 13. Brennan v. Bradshaw, B3 XT. S. 501, 26 Li. Ed. 812; Bernards Tex. 330, 37 Am. Rep. 758. Township t. Stebblns, 109 U. S. 14. Bank of Middebury v. Rut- 341, 3 Sup. Ct. Rep. 252, 27 L. Ed. land, etc. R. R., 30 Vt. 159, 168. 95g_ 15. Reynolds v. Glasgow Acad- 11. Thomburgh v. Tyler, 16 emy, 6 Dana (Ky.) 37. Tex. Civ. App. 439, 43 S. W. 1054. 16. Tenney v. Warren Lumber 12. Wiley et al. v. Board of Co., 43 N. H. 343. Education, 11 Minn. 371. 17. Hendee v. Pinkerton, 14 Allen (Mass.) 381. 582 MxjNICIPAIi CORPOEATIONB. §258 Massachusetts decisions it is said that a scroll was never treated as a seal.^^ It has been held that a seal though not the common seal of the corporation is good on a contract,^" as where parties "set their hands" and against each Signature was a small bit of paper attached by a wafer without any impression on either, indicative of a common seal of a corporation. "A corporation as well as an individual person may use and adopt any seal. They need not say that it is their common seal. This law is as old as the books. Twenty may seal at one time with the same seal. "20 It is generally held that the seal must have been attach- ed or affixed by an agent or officer, duly authorized to bind the corporation in such manner.^^ § 258. Proof of seal. Unless the law otherwise provides the seal does not prove itself. This rule is usually applied to the seal of a private corporation.*^ Any one who knows the seal may prove it although he did not see it affixed to the particular document.*' 18. Bates v. Boston & N. T. Bank of Ireland v. Evans, 5 H. L. C. R. R. Co., 10 Allen (Mass.) C. 389. 257. 22. Wew york. Jackson v. Pratt, In England a mere Imprint of 10 Johns. 381. the. seal Is not sufficient. Timo- Pennsylvania. Foster v. Shaw, thy V. Fenn, 74 J. P. 123. Still 7 Serg. & R. 163. less the imprint of the borough South Carolina. Charleston v. arms. Drew v. Harlow, 49 J. P. Moorehead, 2 Rich. L. 430. 420. Virginia. Com. v. Dunlap, 89 19. Bank of Middebury v. Rut- Va. 431, 16 S. E. 273. land, etc. R. R., 30 Vt. 160, Judicial notice. It seems that 168; Porter v. Androscoggin & K. Judicial notice is taken of the Ry., 37 Me. 349; Tenney v. Lum- seals of old English cities, as Lon- ber Co., 43 N. H. 343; Stebbins don and Edinburgh, because of V. Merritt, 10 Cush. (Mass.) 27. their great antiquity. Den v. 20. Proprietors, etc. v. Hovey, Vreeland, 7 N. J. L. 352. 21 Pick. (Mass.) 417, 428. 23. Moises y. Thornton, 8 T. R. 21. Kochler v. Iron Co., 67 XJ. 307. g. (2 Black.) 715, 17 L. Ed. 339; § 258 Pboof of Seal. 583 The rule usually invoked is that the seal of a corpo- ration to an instrument constitutes prima facie evidence that it was put there by the proper authority, and that the instrument is the act of the corporation.** In brief, generally speaking, when the corporate seal appears affixed to a document it will be presumed to have been regularly so affixed ; and the party who impugns its legality has the burden east upon him of showing in what manner the annexation was illegal or irregular.*'' But if the corporate seal is affixed to an instrument without the authority of the corporation, of course it is invalid, and the municipal authorities may repudiate it.** However, in view of the presumption, above mentioned, where the instrument is executed by one having authority the seal afiSxed will be presumed to be the proper seal unless the contrary is shown.*' The' courts take judicial notice of the seal of the state.** A public seal of a state affixed to the exemplifi- cation of a law or to judicial proceedings, is a matter of notoriety and will be judicially noticed as a part of the law of nations, acknowledged by all.*® 24. Levering V. Memphis, 7 Co., 79 111. 453; 8 The laws of Humph. (Tenn.) 558; Memphis v. England (Halsbury), p. 310, par. Adams, 9 Helsk. (Tenn.) 518, 24 698. Am. Rep. 331; Musser v. Johnson, 28. Chicago & A. R. Co. v. Kee- 42 Mo. 74, 97 Am. Dec. 316; gan, 152 111. 413, 39 N. B. 33; Roh- GashwUer v. Willis, 33 Cal. 11, inson v. Oilman, 20 Me. Pt. 2 91 Am. Dec. 607 and n. 616. (7 Shep.) 299. So, also, the na- 25. Arnold's Mun. Corp. (5th tlonal seal. Watson v. Walker, Ed., London), p. 117. 23 N. H. 471. 26. Arnold's Mun. Corp. (5th 29. Lincoln v. Battelle, 6 Wend. Ed., Liondon), p. 117. 475; Duffey v. Presbyterian Con- 27. Phillips V. Coffee, 17 111. gregatlon of Bellefont, 48 Pa. St. 154, 157; Sawyer v. Cox, 63 111. (12 Wright) 46. 134; Miller v. Superior Machine 584 Municipal Cobpobations. CHAPTER 7. CORPORATE BOUNDARIES. Sec. Sec. 259. Corporate limits must be 274. fixed and certain. 260. Presumption arising from long acquiescence In the lo- 275. cation of boundaries. 276. 261. Construction of description of boundaries — illustratlTe cases. 277. 262. Same subject. 278. 263. Same — reference to bodies of 279. ■water. 264. Two public corporations In 280. the same limits. 265. Power of state in establish- ing and changing munici- pal boundaries. 281. 266. Special acts affecting bound- aries generally forbidden. 282. 267. Enlargement of boundaries by annexation of territory . 283. — restrictions. 268. "Various methods of extend- 284. Ing limits and annexing territory. 285. 269. Same — submission of ques- tion to inhabitants or property owners. 286. 270. Discretion in submitting 287. question of extension to vote. 288. 271. Corporate limits changed by municipal corporations or 289. local tribunals — delegation of legislatiye power. 290. 272. Conditions of annexation — what territory may be in- 291. cluded^general doctrine. 292. 273. Same — definitions of "plat- ted," "lots," "blocks." Reasonableness of annexa- tion In general — ^illustra- tive cases. Same subject. Reasonableness of annexa- tion — contiguous or adja- cent territory. Same — farm lands. Same subject. Detachment of municipal ter- ritory. Annexation pending proceed- ings to organize the same territory as a municipal corporation is void. Proceeding to annex or de- tach territory — in general. Same — sufficiency of ordi- nance. Same — requisites and suffi- ciency of notice. Same — sufficiency of petition — illustrative cases. Same — plat or plan of prop- erty to be annexed to peti- tion. Same — the evidence. Same — the judgment or or- der. Same — action to test validity of proceeding. Same subject — ^presumptions — acquiescence. Same — collateral attack on annexation proceedings. Same — review. Defects may be cured. §259 BOUNDAEIES OF MUNIOIPALITT. 585 Sec. 293. Effect of changing of lim- its in general — Illustrative cases. 294. Condition of public property and debts after change — apportionment. Sec. 295. Taxation and exemptions on change of limits. 296. Municipal subdivisions and wards. 297. Same subject. § 259. Corporate limits must be fixed and certain. As we have seen the municipal corporation is an organ of government whose chief purpose is to supply local needs, conveniences and comforts to its residents. This is accomplished by means of the local civil government created, as explained elsewhere, and administered within prescribed territorial limits. The inhabitants residing within such area are invested with certain municipal liberties, rights and privileges. They are also impressed with certain duties and obligations. With slight excep- tions, the general rule is that, a municipal corporation cannot exercise its powers beyond its own corporate limits, without legal authorization.^ It is thus obvious that every municipal corporation must have its boundaries fixed, definite and certain as to precise location, in order that they may be identified, and that all may know the exact scope or section of ter- 1. Alahama. Folmar v. Cur- tis, 86 Ala. 354, 5 So. 678. Illinois. Strauss v. Pontiac, 40 lU. 301; Chicago P. Co. v. Chicago, 88 111. 221. Michigan. Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601. Pennsylvania. Gilchrist's Ap- peal, 109 Pa. St. 600. South Carolina. Kennedy v. Sowden, 1 McMull. L. (S. C.) 323. Virginia. Duncan v. Lynch- burg, 2 Va. Dec. 700, 34 S. E. 964, 48 L. R. A. 331. Whether particular property is within or without corporate limits is a question of fact. Indianap- olis V. McAvoy, 86 Ind. 587; Be- gein T. Anderson, 28 Ind. 79. The legislature may extend the jurisdiction of a municipal cor- poration for police purposes be- yond its corporate limits. Van Hook V. Selma, 70 Ala. 361, 45 Am. Rep. 85. Authority beyond corporate lim- its, held not to apply to mere business functions. Schneider v. Menasha, 118 Wis. 298, 95 N. W. 94. 586 Municipal Cobpoeations. §259 ritory or geographical division embraced within the cor- porate limits, and over which the local corporation has jurisdiction.^ Unless the boundaries are described ^pith certainty so that it is possible to determine the precise area intended to be included within the municipal limits the incorpo- ration will be void.^ If the description of the boundaries is so exact and definite as to enable a surveyor to ascer- tain with certainty, or to trace readily the boundary lines of the corporation, it is sufficient.* Under statutes which require the tribunal authorized to order incorporation to set out metes and bounds in the order, if the metes and bounds are improperly described 2. California. People ex rel. v. Oakland, 92 Cal. 611. Georgia. Howell v. Kinney, 99 Ga. 544, 27 S. B. 204. Idaho. State ex rel. v. Poca- tello, 2 Idaho 908, 28 Pac. 411. Maine. Plantation No. 9 v. Bean, 40 Me. 218. Texas. Oak Cliff v. State, Tex. Civ. App. (1903), 77 S. W. 24, affirmed 79 S. W. 1. Vermont. Cutting v. Stone, 7 Vt. 471; Gray v. Sheldon, 8 Vt. 402; Pierce v. Carpenter, 10 Vt. 480. West Virginia. Douglass v. Harrisville, 9 W. Va. 162. "Corporations have boundaries, or they have no existence. To determine whether they have or not, or what they are, is within the power of the courts." Little Rock v. Parish, 36 Ark. 166, 172, 173. 3. Florida. Enterprise v. State, 29 Fla. 128, 10 So. 740. G-eorgia. Howell v. Kinney, 99 Ga. 544, 27 S. E. 204; Warren v. Branan, 109 Ga. 836, 35 S. E. 383. Idaho, Wardner v. Pelkes, 8 Idaho 333 (1902), 69 Pac. 64. When void for uncertainty, see State ex rel. v. Tucker, 48 Mo. App. 531; Furr v. State, 6 Tex. Civ. App. 221; State v. Bilhy, 60 Kan. 130, 55 Pac. 843, In a proceeding to extend the boundaries of a municipal cor- poration, a description of the mu- nicipal limits as a whole as they will exist after extension, is sufficient. State ex rel. v. Birch, 186 Mo. 205, 85 S. W. 381. The fact that the territory em- braced within the boundaries is only sixteen acres in extent is no objection to the incorporation. Guebelle v. Epley, 1 Colo. App. 199 (1891), 28 Pac. 89. Under the rule that that is certain which can be made cer- tain, the description is sufficient if the boundaries can be definitely ascertained. Short v. Gouger, Tex. Civ. App. (1910), 130 S. W. 267. 4. New Decatur v. Nelson, 102 Ala. 556, 15 So. 275; Williams v. Willard, 23 Vt. 369. § 260 BouNDAEiES : Location : Presumptions. 587 . i- . ,^__ the order of incorporation is void." But a substantial compliance with such statutory provision is sufficient. Thus "where the tribunal failed to designate the boundar- ies in the order, as enjoined by statute, but referred to the petition which contained such description, and grant- ed the prayer of the petition without changing, a suffi- cient designation of the boundaries appears.* § 260, Presumption arising from long acquiescence as to location of boundaries. . Long acquiescence in the location of municipal bound- aries, although indefinite and uncertain, by the local corporation and the inhabitants thereof, and where all municipal action and improvements have been done un- der the assumption that such are the boundaries, will support the conclusion that such are the true boundaries, notwithstanding they were not originally so located.'^ Thus where a bonndary line of a municipal corporation as fixed by statute, was uncertain and determinable only by authoritative construction of the statute, and a prac- tical interpretation of the statute had been adopted and acted upon by the property owners and the local cor- poration for more than twenty years, such construction will be adopted by the courts, especially where it has received legislative recognition.* And where the act of incorporation of a city did not expressly include a certain place within the limits, but the inhabitants thereof con- 5. state ex rel. v. Tucker, 48 NebrasTca. Omaha v. South Mo. App. 531. Omaha, 31 Neb. 378 (1891), 47 6. State ex rel. v. Pocatello, N. W. 1113. 2 Idaho 908, 28 Pac. 411. New Hampshire. Wells v. Jack- See §§ 261 to 263 post. son Iron Mfg. Co., 48 N. H. 491. 7. Illinois. People ex rel. v. South Carolina. State ex rel. Farnham, 35 111. 562. v. Columbia, 27 S. C. 137, 3 S. E. Indiana. Pidgeon v. McCarthy, 55. 82 Ind. 321; Strosser v. Fort Virginia. Hamilton v. McNeil, Wayne, 100 Ind. 443. 13 Gratt. (Va.) 389. Iowa. Albia v. O'Harra, 64 8. Belknap v. Louisville,' 93 Iowa 297. Ky. 444, 20 S. W. 309, 14 Ky. L. Massachusetts. Chenery ▼. Rep, 420. Waltham, 62 Mass. (8 Cush.) 327. 588 MuNlOIPAIi COBPOBATIONS. r § 261 sidered themselves within the limits and enjoyed the rights of the other incorporators for a long time, they will be deemed to be included within the corporate limits and subject to municipal police regulation.' However, the corporate limits of a municipal corporation would not be contracted by mere acquiescence of the municipal council in a survey which fixed limits of less extent than those prescribed by a legislative act, even though such survey had been authorized by ordinance of the city coun- cil and acquiesced in for thirty years.^° A block of ground within the boundaries of a municipal corporation is presumed to be a part of its territory and subject to its jurisdiction.^^ But, the mere payment of taxes upon lands erroneously assessed in a city is not such acquiescence on the part of the owner as would estop him from claiming that the land was not within the corporate limits.^'* In a South Carolina case it was determined that where the boundaries had been established by proper legal au- thority, had been acquiesced in by the corporate authori- ties and the inhabitants and by the state legislature, such boundaries could not be changed by subsequent measure- ment not sanctioned or recognized by legislative authori- ty, although a departure appears from the municipal limits specified in the charter.^* When the boundaries of a municipal corporation grow to be ancient and are unmarked by artificial monuments, they may be proved by general reputation, in the absence of higher evidence.^* § 261. Construction of description of boundaries — illus- trative cases. As a general proposition, the description of corporate boundaries are not construed with the same strictness as 9. Milne v. New Orleans, 13 12. Armstrong v. Topeka, 38 La. 68. Kan. 432, 13 Pac. 843. 10. Martin v. Gainesville, 126 13. Marsha v. Richland County, Ga. 577, 55 S. E. 499. 81 S. C. 135, 62 S. E. 4. 11. Miller v. Sterling, 198 111. 14. Russell v. C. N. Robinson B23, 65 N. B3. 132, & Co., 153 Ala. 327, 44 So. 1040. § 261 Descbiption op Botjndabibs. 589 boundaries in grants or contracts. ^^ In an early Massa- chusetts case it is said that "the same construction that is given to grants is given to statutes which prescribe the boundaries of incorporated territory." ^' Thus in a Cal- ifornia case a description by metes and bounds which would be sufficient in an ordinary deed was held to comply wicn a statute which required the petition for the estab- lishment of an irrigation district to "set forth and par- ticularly describe the proposed boundaries of such district."" If the description in a statute of the boundaries cannot be literally applied on account of inaccuracy, the statute must receive a reasonable construction in order to carry into effect the intent of the legislature.^® A description that gives a definite location or that is sufficient for identification will be sustained.^^ Tbus as mentioned, if the description be sufficient to enable a sur- veyor to ascertain the lines and comers with certainty it will be upheld.^" In ascertaining boundaries due weight should be given to the contemporaneous interpretation of the courts and other lawful authorities and by the population at large residing therein. Maps published by authority of law may be referred to as evidence.*^ 15. Hamilton t. McNeil, 13 aries, the description is, of course. Grant (Va.) 389, 394; Shank v. indefinite and uncertain." Plan- Ravenswood, 43 W. Va. 242, 246, tation v. Bean, 40 Me. 218, 221. 27 S. B. 223. Rule applied to public road in 16. Cold Spring Iron Works t. Ziebold v. Foster, 118 Mo. 349, 24 Tolland, 9 Cush. (Mass.) 492, 496. S. W. 155. 17. Central Irrigation District 20. New Decatur v. Nelson, V. De Lappe, 79 Cal. 351, 355. 102 Ala. 556, 15 So. 275; Williams 18. In re Ipswich, 30' Mass. (13 v. Willard, 23 Vt. 369. Pick.) 431. 21. Hamilton v. McNeil, 13 19. Douglass v. Harrisville, 9 Grant. 393, 394. W. Va. 162, 165. Description of metes in petition A description that will give a for incorporation may be referred definite location is suflicient, "but to. State ex rel. v. Pocatello, 2 where a tract of land or division Idaho 907, 913, 28 Pac. 411; Com. of territory is referred to by name, v. Halstead, 18 W. N. C. 385 (Pa. which has no established bound- St.), 7 Atl. 221. 590 Municipal Corporations. §2G1 A practical location of a to'wm mtli lines and monn- ments well defined will control although the boundaries vary from the charter description.^^ In ascertaining the true location of a line by a survey and plan, where they do not correspond, the less certain must yield to the more important criterion.^* Where the charter of a town described a portion of its boundaries as running to and bounding on a highway, the rule of construction is the same as in the case of a grant of land bounding upon a non-navigable river; it extends to the center of the highway.^* So if a road should be designated as the boundary line between two towns the precise point of separation is the middle of the road.^' When a description establishes the two termini of a line between towns, and no intermediate conflicting point is indicated, the line will be deemed to be a straight one.^* An act incorporating a township into a town by its number has reference to the true lines of the township, although the only line indicated on the earth is an errone- ous one.*^ Where in proceedings to incorporate a town, the de- scription of the boundaries in the notice is ambiguous by reason of a mistake in the call for a corner it does not vitiate the description where the other calls shbw conclu- sively that another corner was meant.^^ False calls may A description of the boundaries 23. Wesley v. Sargent, 38 Me. of a village "commencing with 315. Samuel Hall, thence to William 24. Reed's Petition, 13 N. H. Scales," also to include "J. W. 381, 384. Dana Britt and Lyford," held un- 25. State v. Thomaston & certain and insufBcient. Cutting Rockland, 74 Me. 198. V. Stone, 7 Vt. 471, 475. 26. Bremen v. Bristol, 66 Me. School district. Gray v. Shel- 354. don, 8 Vt. 402; Pierce v. Carfien- 27. Wesley v. Sargent, 38 Me. ter, 10 Vt. 480. 315. 22. Wells T. Jackson Mfg. Co., 28. People v. Linden, 107 Cal. 48 N. H. 491. 94, 40 Pac. 115. § 262 Dbscbiption of Boundabibs. 591 be rejected and lines supplied by intendment in the description of the boundaries.^' § 262. Same subject. Where an act incorporating a town described a bound- ary line as running a north-northeast course, including the whole of a certain farm, when in fact that course did not include the whole farm, it was held that the line of the farm should prevail, as being the more certain monu- ment and evidently intended by the legislature.^** An act designated the northern boundary line of a municipal corporation as starting from a certain "stake and stone" and running "thence on the north boundary north sixty-seven degrees, thirty minutes east to the middle of the main chaimel of the Mississippi River." Here it was held that the general and unidentified words "on the north boundary" would justify a deflection from the given course, and that the locative termini of the line, and the given course, must govern.*^ A description of corporate limits that they shall extend one mile each way, north, south, east and west from the court house square, means to fix the boundary line in a circle with a radius of one mile, with its center at the court house square.*^ Where a charter described the boundaries to be "one- fourth of a mile east, west, north and south from the center of the town, and shall run with the four cardinal points of the compass," the boundary is a square, with sides extending east and west, and north and south.^* An ordinance extending the boundaries "one-third of a mile from the public well on the comer of T and M 29. In re Ipswich, 13 Pick. 30. Gate v. Thayer, 3 Me. 71. (Mass.) 431. 31. Morrison t. Langworthy, 4 The same rule has been applied G. Greene (la.) 177. to a tax deed. Bosworth v. Dan- 32. Luverne v. Shows, 101 Ala. zien, 25 Cal. 299. 359, 13 So. 509. Evidence to explain and locate 33. State t. Ralney, 121 N. C. calls admissible. Reamer v. Ne- 612, 28 S. E. 366. smith, 34 Cal. 626. 592 Municipal Cobpobations. §262 streets," describes a square, the starting point being the center of the well.^* Where corporate boundaries were described, in part, as "to the said railroad, thence easterly along said rail- road to the beginning," it was held that no part of the right of way or premises of the railroad was included within the boundaries.*^ A description of annexed territory that * * on the west side of said limits one quarter of a mile in a westerly direction," is not so indefinite as to render the descrip- tion void, as the word "westerly" means due west.** A description in a legislative act that the limits of a town should "extend to the present limits of the town or one mile square," is sufficiently definite and certain when taken in connection with the act describing the "present limits" as extending "one-half mile each way, north, south, east and west from the center of the public square."*'' The word "border" as used in a statute relative to dis- connection of territory from cities and towns, means the corporate limits, and not the area adjacent to that part which is in actual use for municipal purposes.** 34. Hardesty v. Mt. Eden, 27 Ky. L. Rep. 745, 86 S. W. 687. 35. State v. Chandler, 65 N. J. Sup. 173, 46 Atl. 732. 36. State ex rel. v. Huff, 105 Mo. App. 354, 79 S. W. 1010. 37. State ex rel. v. Wofford, 90 Tex. 514, 39 S. W. 921. 38. Anaconda Mining Co. v. Anaconda, 33 Colo. 70, 74, 80 Pac. 144. . Construction of acts relating to boundaries and sufficiency of de- scription. California. San Diego v. Gran- nlBS, 77 Cal. 511, 19 Pac. 875; Fish- er V. San Diego, 86 Cal. 158, 24 Pac. 1000; People v. Linden, 107 Cal. 94, 40 Pac. 115. Indiana. Green v. Cheeck, ,5 Ind. 105. Maryland. Raab v. Maryland, 7 Md. 483. Missouri. Bradley v. Spikards- ville, 90 Mo. App. 416; Jamison v. Fopiano, 48 Mo. 194. New Jersey. N. J. Southern R. Co. V. Chandler, 65 N. J. 173, 46 Atl. 732. New York, People v. Carpenter, 24 N. Y. 86; Elmendorf v. Myor, etc., 25 Wend. (N. Y.) 693. Pennsylvania. In re Duquesne, 147 Pa. St. 58, 23 Atl. 339; Neal y. Com., 17 S. & R. (Pa.) 67. Yermont. Sowles v. St. Albans, 71 Vt. 418, 45 Atl. 1050. ■§ 263 BotTNDAKiES : Watees. 593 § 263. Same — reference to bodies of water. In creating and prescribing the territorial limits of cities and towns, existing topograpMcal facts such as rivers and large bodies of water are adopted by the legis- lature as the best defined and most permanent monu- ments of boundaries.^* The rules of construction as to boundaries of municipal corporations bordering on navigable or non-navigable water are the same as are applicable to a description in a grant of land so situated to an individual. If an in- dividual has a right to extend his land by filling in and making improvements into the water and does so, the boundary of the municipality is extended in the same way and to the same extent.*^ Where a stream not navigable is made the boundary of a municipal corporation the center or thread of the stream, and not the edge or margin, is the true boundary line.*^ And this is so although the monuments are de- scribed as standing on the margin or bank of the stream.** Where the boundary is described as running with a navigable river the municipal jurisdiction does not ex- tend beyond low water mark, in the absence of some 39. Bremen t. Bristol, 66 Me. New York. In re Spier, 3 N. Y. 354. Supp. 438; Hart v. Albany, 9 40. Western Maryland R. Co. Wend. (N. Y.) 571. V. Baltimore, 106 Md. 561, 68 Atl. Pennsylvania. Gilchrist v. 6. Strong, 167 Pa. St. 628, 31 Atl. 41. Mame. Perkins v. Oxford, 931. 66 Me. 545; Granger v. Avery, 64 United States. Jones v. Sou- Me. 292. lard, 65 U. S. (24 How.) 41; St. Massachusetts. Flynn v. Bos- Louis Public Schools v. Rlsley, 77 tern, 153 Mass. 372, 26 N. B. 868. U. S. (10 Wall.) 91. Michigan. Coldwater v. Tucker, 42. Cold Spring Iron Works t. 36 Mich. 474, 24 Am. Rep. 601. Tolland, 63 Mass. (9 Gush.) 492; New Hampshire. State v. Gil- Knight v. Wilder, 2 Cush. (Mass.) manton, 14 N. H. 467; State v. 199; Lunt v. Holland, 14 Mass. Canterbury, 28 N. H. 195. 149; State ex rel. v. Columbia, 27 New Jersey. State v. Davis, 25 s. C. 137, 3 S. E. 55; Luce v. N. J. L. 386. Carley, 24 Wend. (N. Y.) 451. 1 McQ.— 88 594 Municipal CoBPOBArroNS. §263 charter provision expressly or by fair implioation ex- tending tlie jurisdiction.** Jurisdiction will sometimes be extended beyond low- water mark.** A description fixing a municipal boundary along a bay was held to intend a shifting boundary as the shore might exist, either by change in the natural banks or in the artificial shore.*® The general rule is that where boundaries abut on the sea and follow along the shore, high-water mark is the line thereof.*^ In Pennsylvania it is provided that whenever any town- ship, borough or city is bounded by the nearest margin of any navigable stream of the commonwealth, and the opposite township, borough or city, as the case may be, is also bounded by the nearest margin of the same stream, the middle of such stream shall be deemed to be the boundary line between such townships, boroughs and cities, as the case may be.*'' 43. state t. Eason, 114 N. C. 46. Pacific Sheet Metal Wks. 787. 19 S. B. 88, 23 L. R. A. 520, T. Roeder, 26 Wash. 183, 166 Pac. 41 Am. St. 811. 428; Jones v. Martin, 35 Fed. 348. ,44. Udall V. Brooklyn, 19 As to jurisdiction over lands Johns. (N. Y.) 175; Stryker v. under the navigable waters of the New York, 19 Johns. (N. Y.) 179; bay of San Francisco In front of Lruke V. Brooklyn, 43 Barb. (N. the city of Oakland. Southern Y.) 54; Atlantic Dock Co. v. Pacific Co. v. Western Pacific Co., Brooklyn, 1 Abb. App. Dec. (N.Y.) 144 Fed. 160, reversed 151 Fed. 24; Tebo v. Brooklyn, 134 N. Y. 376, 80 C. C. A. 606. 341, 31 N. B. 984. The boundaries of New York In the absence of charter re- City include all of the' Bast River strlctlons the municipal limits to the low-water mark on the should be extended over the har- Brooklyn city side; and the bound- bor and navigable water border- aries of Brooklyn extend only to Ing it. Smith v. Skagit Co. low-water mark on its other side. Commrs., 45 Fed. 725. Udall v. Brooklyn, 19 Johns. (N. 45. Bechtel v. Edgewater, 45 Y.) 176. This was true at the Hun (N. Y.) 240. ' time this case was decided. 47. Gilchrist v. Strong, 167 Pa. St. 628, 31 Atl 931. ,^263 Boundaries : Navigable Watebs. 595 Where the boundaries of a municipal corporation are extended to include navigable waters the corporation is not vested with any title to the soil beneath the water but its jurisdiction is merely extended with the. boundaries.** 48. Palmer t. Hicks, 6 Johns. (N. T.) 133. Reference to bodies of water — illustrative cases. Arkansas. Ft. Smith Bridge Co. V. Hawkins, 54 Ark. 509. Connecticut. Pratt v. State, 5 Conn. 388. Massachusetts. Ipswich v. Peti- tioner, 13 Pick. (30 Mass.) 431; In re Inhabitants of Ipswich, 13 Pick. (30 Mass.) 431. New York. In re Furman Street, 17 Wend. (N. Y.) 649, 661. United States. Jones v. Sou- lard, 65 U. S. (24 How.) 41. Connecticut River. "Every part of the Connecticut River so far as it relates to jurisdiction is within some town in the state; for these waters would he a sanctuary for debtors or criminals. Such has been the invariable usage." Hayden v. Noyes, 5 Conn. 391, 395. Charleston, South Carolina, ex- tended Jurisdiction. Harlston v. Charleston, 1 McCord (S. C.) 345. The City of St. Louis, Missouri, has jurisdiction to the center of the main channel of the Missis- sippi River. St. Louis Public Schools V. Rlsley, 77 U. S. (10 Wall.) 91. And it has been held that the jurisdiction of the state of Missouri extends over the en- tire Mississippi River so far as It forms the common boundary be- tween it and the state of Illinois. Sanders v. St. Louis & N. O. An- chor Line, 97 Mo. 26; Swearingen V. Steamboat Lynx, 13 Mo. 619; State V. Mullen, 35 Iowa 199. The states of IVIIssourl and Illi- nois have concurrent jurisdiction generally over the Mississippi River and each state has exclusive territorial jurisdiction over that portion adjacent to its own shore. St. Louis V. Routz, 138 U. S. 226, 11 Sup. Ct. Rep. 357. New Orleans. The town of MI- lenburg, is within the corporate limits of New Orleans. Milne v. New Orleans, 13 La. 68. Philadelphia. The jurisdiction of the city of Philadelphia ex- tends to the shore of New Jersey, subject to the compact between Pennsylvania and New Jersey. Neal V. Commonwealth, 17 Serg. & R. (Pa.) 67. New Hampshire towns bounded by or on the Connecticut or Merri- mac Rivers, or by lines up and down the river, extend to the cen- ter of the river. State v. Canter- bury, 28 N. H. 195; State v. Gil- manton, 14 N. H. 469; Boscawen V. Canterbury, 23 N. H. 188. Corporate limits of villages bounded by a navigable river usually extend to the middle of the stream. Marseilles v. Kiner, 34 111. App. 355. The low-water mark of a navi- gable river constitutes the limit of a municipality bounding thereon, unless the language of the charter show the contrary. Appeal of Gil- 596 MuNICIPAIj CoEPOEATIOKrs. ^264 § 264. Two public corporations in the same limits. It is a self-evident proposition that two public corpora- tions of the sam,e kind cannot exercise like or similar powers in the same boundaries ;*' however, there may be two different public corporations or governmental bodies in the same area, as a city or municipal corporation and a county,^" or a city and a board* of education.^^ Christ, 109 Pa. St. 600, 16 Wkly. Notes Cases, 261, 42 Leg. Int. 415. Description of boundaries along the course of a well known and considerable stream, giving the distance accurately, complies with a law requiring the proposed boundaries to be set forth at length. In re Borough of Moosic, 12 Pa. Super. Ct. 353. Water area within the boun- daries as forming part of the cor- porate area. Fenton v. Ryan, 140 Wis. 353, 122 N. W. 756. 49. California. In re Sanitary Board, Cal. (1910), 111 Pac. 368; Stone Co. v. Reilly, Cal. (1910), 111 Pac. 373; Martin v. Aston, 60 Cal. 63. Florida. Enterprise v. State, 29 Fla. 128, 10 So. 740. Illinois. People v. Lease, 248 111. 187, 93 N. B. 783; Peoria, etc. R. Co. V. People, 144 111. 458, 33 N. E. 873. Indiana. Strosser v. Ft. Wayne, 100 Ind. 443, 451, 8 Am. & Eng. Corp. Cases 636; Taylor v. Ft. Wayne, 47 Ind. 274. ' Iowa. Ashley v. Calliope, 71 la. 466, 32 N. W. 458. Louisiana. Milne v. New Or- leans, 13 La. 68. Michigan. Robertson v. Baxter, 57 Mich. 127. New Jersey. Paterson v. Use- ful Mfr-s Soc, 24 N. J. L. 385, 399. Pennsylvania. Darby v. Sha- ron Hill, 112 Pa. St. 66, 4 Atl. 722. Texas. State v. Wofford, 90 Tex. 514, 39 S. W. 921. England. Grant, Corp. 18; Wil- cock, Mun. Corp. 27; The King v. Pasmore (D. & E.), 3 Term, 199, 243. "The object of such a corpora- tion is the good government of the locality, and obviously that can- not be attained where two sepa- rate corporations are exercising the same jurisdiction, powers and privileges. On the contrary It would lead to public confusion and disorder." State t. Winter Park, 25 Fla. 371, 381, 5 So. 818. 50. Kahn v. Sutro, 114 Cal. 316, 33 L. R. A. 620, 46 Pac. 87; Stedman v. San Francisco, 63 Cal. 193; People v. Hill, 7 Cal. 97; Strosser v. Ft. Wayne, 100 Ind. 443, 451, 8 Am. & Eng. Corp. Cases 636; Caldwell v. Burke County (4 Jones Eq.), 57 N. C. 323; Shanklin v. Madison County, 21 Ohio St. 575. 51. Heller v. Stremmel, 52 Mo. 309, 311; Park Commissioners v. Detroit, 28 Mich. 228, 15 Am. Rep. 202. § 264 CONPLIOTINQ BoTJNDAHrES. 597 Municipal corporations organized for different pur- poses may include the same territory.^^ Thus a drainage district may include within its limits part of the terri- tory of an incorporated village.®* The rule that there cannot be two municipal corpo- rations of like kind and powers in the same area at the same time must be understood as meaning two legal and effective corporations. There may be a de facto corporation without right, and a corporation legally or- ganized but not in actual government until the de facto corporation is ousted. The functions of the legal cor- porations are in abeyance until the ouster, when they then come into activity.®* For like reasons two distinct charters for one and the same corporation cannot exist at the same time,®® and, hence, a municipal corporation already in existence and having a valid charter cannot be re-incorporated by a court having no authority to repeal, annul or declare forfeited the existing charier, but whose powers are, on the contrary, expressly limited by statute to the in- 62. Alabama. Osborne v. Mo- One cannot be a resident and a bile, 44 Ala. 493. voter in two distinct municipal Colorado. Denver v. Adams corporations. Where his residence County, 33 Colo. 1. is divided by the boundary line Illinois. People v. Nibbe, 150 111. between two towns that portion 269, 37 N. B. 217; People v. Hazel- of the house which he occupies wood, 116 111. 319, 6 N. B. 480. chiefly as his home will deter- New York. People v. Morris, 13 mine his residence. Chenery v. Wend. (N. Y.) 325. • Waltham, 8 Clish. (Mass.) 327. Tennessee. Grant v. Lindsay, 11 As to liability of one of two Heisk. (Tenn.) 651. towns for defect in a bridge on 53. People ex rel. v. Nibbe, 150 a highway which was the diviil- 111. 269, 37 N. B. 217; Wilson ing line of two towns, see State V. Board of Trustees of Sanitary v. Thomastown and Rockland, District of Chicago, 133 111. 443, 27 74 Me. 198. N. E. 203. 54. State v. Winter Park, 25 As to taxation In aid of a rail- Fla. 371, 380, 381, 5 So. 818; En- road of a number of residents terprise v. State ex rel., 29 Fla. of a township part of which Is 128, 141, 10 So. 740. within the limits of a city, see 55. Bx parte Moore, 62 Ala. Scott V. Hansheer, 94 Ind. 1. 471, 476. 598 Mtjiiioipaii Cobpoeations. §265 corporation of places and inhabitants "not incorpo- rated.""* In Pennsylvania a borough may be incorporated which includes within its boundaries a part of the territory of an old borough, but as this involves a change in the limits of the old borough, of course, that part included falls under the exclusive jurisdiction of the new corpo- ration."'' In an Illuiois case it was ruled that, under a statute authorizing municipal corporations to regulate the man- agement and construction of packing houses within their limits and within one mile outside thereof, a pack- ing house located within a mile of two different munici- palities was held to be subject to the police ordinances ofboth."8 § 265. Power of state in establishing and changing mu- nicipal boundaries. Unless restricted by the Constitution the legislature may not only establish the original limits of the munici- pal corporations, but niay alter or change the boundaries at any time by directly annexing or detaching territory contiguous or otherwise, dividing or consolidating cor- porations, or, it may authorize such changes to be made by general or special law, unless forbidden by the Con- stitution, and this may be done without the consent and even against the protest of the corporation, the local authorities or a majority of, or all the inhabitants of the communities affected. This is regarded as a purely dis- cretionary legislative prerogative, and unless the obli- gations of contracts or vested rights of third persons 66. Butler v. Walker, 98 Ala. 58. Chicago Packing & Provl- 358. slon Co. v. Chicago, 88 III. 221, 30 57. Darby t. Sharon HUl, 112 Am. Rep. 545. Pa. St. 66. §265 Changing Botjndabies. 599 are impaired by sucli action, in accordance witli the well estabnshed rule, the judiciary cannot interfere."* 59. California. Allen v. Ba- kersfield, 157 Cal. 720, 109 Pac. 486; People ex rel. v. Riverside, 70 Cal. 461, 11 Pac. 759. Connecticut. Suffield v. East Granby, 52 Conn. 175. Georgia. Kelly v. Tate, 43 Ga. 535; Toney t. Macon, 119 Ga. 83, 46 S. B. 80.' Idaho. Sabin v. Curtis, 3 Idaho 662, 32 Pac. 1130. Illinois. People v. Wren, 5 111. 269; Galesburg v. Hawklnson, 75 111. 152; Cicero v. Chicago, 182 111. 301, 55 N. E. 351; Coles t. Madison Co., 1 111. 120, 12 Am. Dec. 164; Smith V. People, 154 lU. 58, 39 N. B. 319. Iowa. Monford v. tJnger, 8 la. 82. Indiana. Stilz t. Indianapolis, 55 Ind. 515; Wolverton v. Albany^ 152 Ind. 77, 52 N. E. 455; Pitts- burg, etc. R. Co. V. Indianapolis, 147 Ind. 292, 46 N. E. 641; Tag- gart V. Claypool, 145 Ind. 590, 44 N. E. 18, 32 L. R. A. 586; Indian- apolis V. Patterson, 112 Ind. 344, 14 N. E. 551; Wiley v. Bluflton, 111 Ind. 152; McCoy v. Trustees of Cloverdale, 31 Ind. App. 331, 67 N. E. 1007. Kansas. In re Howard County, 15 Kan. 194; Atchison, etc. R. Co. V. Maquilkin, 12 Kan. 301; Empo- ria V. Smith, 42 Kan. 433, 22 Pac. 616. Kentucky. Carrithers v. Shel- byville, 126 Ky. 769, 31 Ky. U Rep. 1166, 104 S. W. 744; Pence t. BYankford, 101 Ky. 534, 19 Ky. Law Rep. 721, 41 S. W. 1011; Lewis v. Branden- berg,20 Ky. Law 1015, 48 S. W. 978; 20 Ky. Law 1011, 47 S. W. 862; Lebanon v. Edmonds, 101 Ky. 216, 19 Ky. Law 297, 40 S. W. 573; Fredonia y. Rice, 24 Ky. Law 2331, 73 S. W. 1125; Cov- ington V. Southgate, 15 B. Mon. (Ky.) 491; Cheaney v. Hooser, 48 Ky. (9 B. Mon.) 330; Sharp's Ex. V. Dunavan, 17 B. Mon. (17 Ky.) 223; Miller v. Pineville, 28 Ky. L. Rep. 379, 89 N. W. 261. Louisiana. Stoner v. Plournoy, 28 La. Ann. 850. Maryland. Daly v. Morgan, 69 Md. 460, 16 Atl. 287, 1 L. R. A. 757. Massachusetts. Stone v. Charles- town, 114 Mass. 214; Chandler v. Boston, 112 Mass. 200. Maine. Gorham r. Springfield, 21 Me. 58; Ham v. Sawyer, 38 Me. 37. Michigan. Muskegon v. Gow, 94 Mich. 453, 54 N. W. 170. Minnesota. Winona v. School Dist, 40 Minn. 13, 3 L. R. A.' 46; Rocs V. State, 6 Minn. 428; State V. Lake City, 25 Minn. 4b4. Mississippi. Martin v. Dix, 52 Miss. 53, 24 Am. Rep. 661; Forbes T. Meridian, 86 Miss. 243, 38 So.' 676. Missouri. St. Louis v. Russell, 9 Mo. 507; St. Louis v. Allen, 13 Mo. 400; State ex rel. v. McRey- nolds, 61 Mo. 203; Giboney v. Cape Girardeau, 58 Mo. 141; Benoist V. St. Louig, 15 Mo. 668; Lee v. Thomas, 49 Mo. 112; Walden v. Dudley, 49 Mo. 419; Pool v. Brown, 98 Mo. 676. 600 Municipal Cobpoeations. §265 But whether a municipal corporation has definite and certain boundaries and what such boundaries are is a matter for the determination of the courts and not the Nebraska. Gottschalk v. Becher, 32 Neb. 653, 49 N. W. 715. New York. Rumsey v. People, 19 N. Y. 41. North Carolina. Manly v. Ral- eigh, 4 Jones Eg., 57 N. C. 370; Grady t. Lenoir County, 74 N. C. 101. North Dakota. Schaffner v. Young, 10 N. D. 245, 86 N. W. 733. Ohio. Metcalf v. State, 49 Ohio St. 586, 31 N. E. 1076; State v. Cincinnati, 52 Ohio St. 419, 40 N. E. 508, 27 L. R. A. 737; Blanch- ard V. BIssell, 11 Ohio St. 96. Oregon. Winters v. George, 21 Ore. 251, 27 Pac. 1041. Pennsylvania. Hewitt's Appeal, 88 Pa. St. 55; Darby v. Sharon Hill, 112 Pa. St. 66, 71; Com. v. Macferron, 152 Pa. St. 244, 25 Atl. 556, 19 L. R. A. 568. South Dakota. Stuart v. Kir- ley, 12 S. D. 245. Tennessee. McCallie v. Chatta- nooga, 3 Head (Tenn.) 317; Wil- liams V. Nashville, 89 Tenn. 487, 15 S. W. 364; Roane County v. Anderson County, 89 Tenn. 259. Texas. Norris v. Waco, 57 Tex. 635; Madry v. Cox, 73 Tex. 538, 11 S. W. 541; Graham v. Green- ville, 67 Tex. 62, 2 S. W. 742; State V. Waxahachle, 81 Tex. 626. Utah. Elimball v. Grantsville, 19 Utah 368, 45 L. R. A. 628; Kaysville v. Ellison, 18 Utah, 163, 43 L. R. A. 81. Virginia. Richmond v. Rich- mond, etc. R. Co., 21 Gratt. (Va.) 604; Wade v. Richmond, 18 Gratt. (Va.) 583. West Virginia. Roby v. Shep- pard, 42 W. Va. 286, 26 S. E. 278. VPisconsin. Chicago and N. W. R. Co. V. Langlade Co., 56 Wis. 614, 14 N. W. 844; Washburn v. Oshkosh, 60 Wis. 453, 19 N. W. 364. United States. Kelly v. Pitts- burg, 104 U. S. 78, 26 L. Ed. 659; Mt. Pleasant v. Beckwith, 100 U. S. 514 ; New Orleans v. New Or- leans Water-Works Co., 142 U. S. 79, 12 Sup. Ct. 142, 35 L. Ed. 943; Henderson v. Jackson Co., 2 Mc- Crary Cir. Ct. 615. State may establish and change municipal boundaries. "What portion of a state shall be within the limits of a city and be governed by its authorities and its laws has always been con- sidered to be a proper subject of legislation. How thickly or how sparsely the territory within a city must be settled is one of the matters within legislative discre- tion. Whether territory shall be governed for local purposes by a county, a city, or a township or- ganization, is one of the most usual and ordinary subjects of state legislation." Per Mr. Jus- tice Miller in Kelly v. Pittsburg, 104 U. S. 78, 81. An act extending the limits of a municipal corporation and sub- jecting the property therein in- cluded to taxation, is clearly within legislative power, and its wisdom or discretion the courts §265 Extension of Boundaries. 601 legislature ;*" and in such case the justice or injustice of the action of the legislature in fixing the boundaries is not involved.®^ Thus the legislature has the power to extend the limits of an existing municipality by annexing territory thereto, although such territory will receive no benefit from incorporation in return for the municipal burdens thereby imposed upon it, and although the annexed ter- ritory is thereby rendered liable for the pre-existing debts of the municipality.*^ The extension of corporate limits like the organiza- tion of municipal corporations, is ancillary to the gov- ernment in sustaining the peace, the convenience, and cannot review or interfere ■with unless manifestly in violation of the constitution. Hewitt's Appeal, 88 Pa. St. 55. "If too much territory is em- braced within the limits of a city, the right to reduce it or to pre- scribe the manner of doing it is vested in the authority which cre- ated It." Miller v. Pineville, 28 Ky. L. Rep. 379, 89 S. W. 261. A judicial district may be en- tirely abolished by putting all the counties comprising it into an- other district. Aikman v. Ed- wards, 55 Kan. 751, 30 L. R. A. 149. Such act Is not violative of the constitutional guaranty of local self-government. Attorney Gen- eral V. Springwells Tp., 143 Mich. 523, 107 N. W. 87, 13 Det. Leg. N. 30. Power to create Is vested in the state. § 121 supra. An act of the legislature ex- tending the boundaries of a mu- nicipal corporation is not in the nature of a contract, and it may be changed at the pleasure of the leg- islature. McCallie v. Chattanooga, 3 Head (Tenn.) 317; Phila- delphia V. Fox, 64 Pa. St. 169. The authority to extend the lim- its of a municipal corporation does not rest upon the same ground as the power to take prop- erty under eminent domain. Stilz V. Indianapolis, 55 Ind. 515. 60. Hastings v. Hansen, 44 Neb. 704, 63 N. W. 34; Little Rock v. Parish, 36 Ark. 166. 61. Wade v. Richmond, 18 Gratt. (Va.) 583. And the courts will not inter- fere on the ground that certain territory would not derive any benefit from being included with- in the boundaries. People ex rel. V. Riverside, 70 Cal. 461, 11 Pac. 759. 62. Hollister v. Rochester, 41 N. Y. Misc. 559, 85 N. Y. Supp. 147. 602 MtJNICIPAIi COEPOEATIONS. § 266 the good order of those communities which are formed by dense collections of citizens in particular localities. The public generally is concerned and the legislature may prescribe the terms and conditions under which they may be formed or extended.®^ The existence of a prior statute prescribing the man- ner in which municipal boundaries may be extended, does not deprive the legislature' of the power to compel the annexation of territory in a different manner.®* Where power is not directly exercised by the legisla- ture the courts may determine whether its exercise or the manner thereof was authorized by legislative grant.®' When this power is vested exclusively in the legis- lature this body can neither abdicate nor delegate it to the courts or other tribunals." This subject is treated elsewhere.®'' § 266. Special acts affecting boundaries generally for- bidden. Where the particular state Constitution forbids the enactment of local or special laws and requires munici- 63. Foreman v. Marlanna, 43 Power of fixing boundaries is Ark. 324. not, in a legal sense, judicial. 64. Toney v. Macon, 119 Ga. 83, State ex rel. Shumway v. Ben- 46 S. E. Sa. nett, 29 Mich. 451, 18 Am. Rep. 65. Ewing v. State, 81 Tex. 177; 107; criticising Kayser v. Bremen, 16 S. W. 872; Little Rock v. Par- 16 Mo. 88, which declares that ish, 36 Ark. 166. such power is judicial in charac- 66. In re Brenke, 105 Minn. ter. 84, 117 N. W. 157. See cases In note, 27 L. R. A. An act which attempts to confer 737. upon courts the power to change Denied as to specially char- the corporate boundaries of a mu- tered city. Denver v. Coulehan, niclpal corporation by annexing 20 Colo. 471, 27 L. R. A. 751, 39 or withdrawing territory there- Pac. 425. from, is unconstitutional. Such 67. §§ 136, 137 ante, and § being an attempt to confer legis- 271 post. lative powers upon the judiciary. G-alesburg t. Hawkinson, 75 IlL 152. § 267 Statutes Affecting Bottndabies, 603 pal corporations to be classified and general laws pro- vided for their government, aU legislative acts relating to boundaries nmst be general, that is, applicable to all cities of the class or grade designated.** A law permitting extension which is applicable to all cities of a class is not local or special.'® So, a law operative in all parts of the state at all times which relates to annexation, is general and not special.'^" An act to extend limits, which, by its terms, could apply only to one city of a class was held special under the Constitution of lowa.''^ In Ohio, a special act detaching territory from one township, or municipal corporation, and adding it to an- other was held vaM.'^* So, in New Jersey, the legislature may by special act, annex a town to a city where such act does not regulate the internal affairs of either municipality.'^^ § 267. Enlargement of boundaries by annexation of territory— restrictions. As mentioned in a prior section,'^* unless restrained by the state Constitution, the legislature may authorize by proper act the annexation of territory to a municipal corporation. Most of the statutes contain restrictions respecting incorporation and change of boundaries.'"' Thus, in Wisconsin, a town cannot consist of non-con- 68. True v. Davis, 133 111. 522, 6 70. Miller v. Camden, 64 N. J. L. R. A. 266, 22 N. B. 410; State 201, 44 Atl. 961. V. Cincinnati, 20 Ohio St. 18; In 71. State ex rel. West t. Des re Extension of Denver, 18 Colo. Moines, 96 Iowa 521, 31 L. R. A. 288; Denver v. Coulchan, 20 Colo. 186, 65 N. W. 818. 471 27 L, R. A. 751, 39 Pac. 425. 72. Metcalf v. State ex rel., 49 See ch. 4, Legislative Control. Ohio St. 586, 31 N. E. 1076. 69. Copeland v. St. Joseph, 126 73. Miller v. Camden, 64 N. J. Mo. 417, 29 S. W. 281; Westport v. 201, 44 Atl. 961. Kansas City, 103 Mo. 141, 15 S. 74. § 265 supra. yf gj 75. Opinion of the Justices, 6 Cush. (Mass.) 578. 604 MuNICIPAIi COBPORATIONS. §267 tiguoTis territory.''® Nor in that state can an unoccupied tract, not adjoining a village, be made a part thereofJ^ And the legislature is sometimes prohibited from ex- tending the limits of a municipal corporation so as to change the boundary between two counties without the consent of a majority of the inhabitants of the district proposed to be changedi'^^ So it is sometimes provided by statute or constitution that in extending cor- porate limits, the boundaries of judicial or repre- sentative districts shall not be disturbed, especially in the latter instance at times when such a change would interfere with the resident exercising the elective fran- chise.''* As treated in another part of this work,*" constitutions forbid the state legislature from conferring by special act corporate powers, but it was ruled in Ohio that an act detaching territory from one municipal corporation and attaching it to another does not contravene such provision, since, in the view of the court, the act does not confer corporate powers.*^ An act of the legislature of Missouri attaching out- side territory to a town and forming the territory so attached, together with the territory of the town, into a district and authorizing the district so formed to vote a subscription of the stock of a street railroad and issue bonds in payment thereof, is not in conflict with a constitutional provision that the legislature cannot au- thorize a municipal corporation to tax for its own local purposes lands lying beyond the corporate limits.*^ 76. C. & N. W. R. Co. V. Oconto, rel. v. HoUhan, 29 Mich. 116; 50 Wis. 189, 36 Am. Rep. 840. People ex rel. v. Bradley, 36 Mich. 77. Smith v. Sherry, 50 Wis. 447. 210, 6 N. W. 561. 80. § 190 supra. 78. Daly v. Morgan, 69 Md. 81. Metcalf v. State, 49 Ohio St. 460, 23 Am. & Eng. Corp. Cases 586, 31 N. E. 1076. 454. 82. Henderson v. Jackson Co., 79. Com. V. Brennan, 150 Mass. 12 Fed. 676, 2 McCray 615. 63, 22 N. E. 628; People ex § 267 Annexing Teeeitory. 605 The fact that a statute discriminates between corpo- rations and individuals, in respect to tlie annexation of lands to a city held for agricultural purposes, cannot be attacked as unconstitutional in an effort to defeat the annexation of lands belonging to a corporation which are not held for agricultural purposes.*' Statutes frequently require that municipal boundaries shall be extended only upon the consent of a majority of the inhabitants of the district sought to annexed.** Where boundaries are extended under general laws, and there is no statute expressly providing to the contrary, it has been held to be necessary to obtain the consent of a majority of the inhabitants of the territory, which it is proposed to annex, before the territory can be an- nexed.®' Cities authorized to adopt their own charters by vir- tue of the State Constitution are sometimes permitted to xtend their corporate boundaries by amendment of their charters.®* In some states municipal legislative bodies are em- powered to extend the municipal boundaries to include people living within the extension, without their con- sent.®'' So there are other restrictions respecting the char- acter of the territory that may be incorporated or an- nexed, some of which were referred to in the chapter on the creation and classification of municipal corpo- rations and others mil be mentioned in this chapter. These limitations as well as those expressed in many state constitutions considered at length in the chapter on legislative control, are intended to commit, in harmony 83. Clark y. Kansas City, 176 85. People ex rel v. Bennett, U. S. 114, 20 Sup. Ct. 284. 29 Mich. 451; In re Blooming 84. Lum V. Bowie, Tex. (1891), Valley, 56 Pa. St. 66. 18 S. W. 142; Topeka v. Gillett, 86. Kansas City v. Stegmlller, 32 Kan. 431; North Springfield 151 Mo. 189, 52 S. W. 723. V. Springfield, 140 lU. 165, 29 N. E. 87. Forbes v. Meridian, 86 Miss. 849; St. Liouls v. Russell, 9 Mo. 243, 38 So. 676. 507. 606 Municipal Cokporation-s. § 268 ■with the fundamental American principle of local self- government, to the people and communities directly con- cerned the final determination of these matters. § 268. Various methods of extending limits and annex- ing territory. The statutes of the various states do not present a uniform method of extending or reducing corporate boundaries. Sometimes it is done by municipal ordi- nance, originating by petition, signed by a prescribed number of legal voters, or taxable inhabitants, or other- wise, submitting the question of alteration by annex- ation or detachment of territory to a majority, or other designated proportion, vote of the qualified electors whose interests will be affected by the proposed change. Sometimes it is accomplished by petition to a named court. But whatever method, with few exceptions, as stated elsewhere, settlement of the change of boundaries is submitted to the decision of the electors affected.** Various methods are set forth in the footnotes.*^ 88. § 147 SMpro. (Deering), 1897, pp. 608, 609; 89. In Alabama corporate Laws of Cal. 1899, pp. 37, 39; Peo- boundarles may be changed on pie ex rel. v. Oakland, 123 Cal. petition to the probate judge who 598, 56 Pac. 445. orders an election and the ques- In Colorado annexation is de; tion is submitted to the electors termined by popular vote, but the for determination. Civil Code of city to which annexation is made Alabama, 1896, § 2967. must consent by ordinance. Perry Arfcansas. Gunter v. Fayette- v. Denver, 27 Colo. 93, 59 Pac. ville, 56 Ark. 202, 19 S. W. 577; 747. Dodson V. Ft. Smith, 33 Ark. 508. Under the Kentucky statute, § In California a petition, signed 3665, although three-fourths of the by one-fifth of the qualified elect- resident freeholders of the terri- ers of the city or town, is pre- tory sought to be annexed remon- sented to the legislative body, strate on the ground that their which body is required to subinit, taxes will be increased by reason upon due notice, the question of of burdens for city purposes, the annexation to the electors of both court may grant annexation. Sum- city or town and those residing mers v. Elsmere, 21 Ky. Law 1525, within the territory proposed to 55 S. W. 682; Williamstown v. be annexed. General laws of Cal. Matthews, 103 Ky. 121 44 S W. §268 AooBETioNS : Adverse Possession. 607 The limits of a municipal corporation which is bound- ed by navigable water may be extended by accretion.®" So a municipal corporation may, in its proprietary capacity, acquire title to land by adverse possession.®^ 90. Western, etc., Ry. Co. v. Baltimore, 106 Md. 561, 68 Atl. 6. 91. Stephens t. Murray, 132 Mo. 468, 34 S. W. 56. 389; Latonia v. Hopkins, 104 Ky. 419, 47 S. W. 248. In Illinois there are no consti- tutional restrictions relating to the organization or annexation of municipalities save that it cannot be done by local or special law. True V. Davis, 133 111. 522, 6 L. E. A. 266, 22 N. E. 410. By statute the county board of Cook county has power to annex. Cicero v. Chicago, 182 lU. 301, 55 N. E. 351. Indiana. There are cases in which corporate boundaries may be extended without direct legis' lation or express contract. Del- phi V. Startzman, 104 Ind. 343, 2 West Rep. 249; Etrosser v. Ft Wayne, 100 Ind. 443 The common council of a city may, without the consent of the owner, annex territory so as to Include lots platted adjoining the city, if the plat has been acknowl- edged and properly recorded. In- dianapolis V. Patterson, 112 Ind. 344, 11 West Rep. 839; Taylor t. Ft. Wayne, 47 Ind. 274; Strosser V. Ft. Wayne, 100 Ind. 443. Where territory is not platted, the city must petition the board of county commissioners, and se- cure an order from that body for the extension of the city limits. Delphi V. Startzman, 104 Ind. 343, 2 West 249; Taylor v. Ft. Wayne, 47 Ind. 274; Peru v. Bearss, 55 Ind. 576; Cicero v. Williamson, 91 Ind. 541; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Logans- port V. LaRose, 99 Ind. 117, 1 N. E. 805. Kansas. The statute relating to the annexation of territory to cit- ies of the second class, as the judgment of the court approving the annexation is of a judicial character, and is the exercise of judicial power, Is not unconstitu- tional. Huling v. Topeka, 44 Kan. 577, 24 Pac. 1110; Callen v. Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736. Owners of farming land adja;- cent to a city of the second class who voluntarily subdivide it into blocks and lots, thus creating the statutory conditions, cannot de- feat such annexation by a claim that the extent of their homestead is reduced to one acre without their consent. Emporia v. Smith, 42 Kan. 433, 22 Pac. 616; Sarahas V. Fenlon, 5 Kan. 592. Changing the sjtatus of a tract of land from a farm to city lots, by the exercise of a power granted cities to extend their limits is not a deprivation of property without due process of law. Callen v. Junction City, 43 Kan. 627, 7 L. R. A. 736, 23 Pac. 652. In Iowa, unplatted contiguous territory may be annexed, first, by ordinance duly passed, describ- ing the lands by metes and 608 MuNICIPAIi COEPOBATIONS. §269 § 269. Same — submission of question to inhabitants or property owners. In some jurisdictions tbe legislature enacts a statute changing the boundaries after which the proposition is submitted to the inhabitants for their approval.'^ 92. Georgia. White v. Atlanta, 134 Ga. 532, 68 S. B. 103. Illinois. People v. Reynolds, 10 ni. 1. Indiana. Lafayette, etc. R. Co. V. Geiger, 34 Ind. 185. Maine. Call t. Chadboume, 46 Me. 206. bounds; second, submitting the question to popular vote; third, if a majority vote Is favorable, the city council presents a petition to the district court, praying for an- nexation, and the court makes the necessary orders. Iowa Code, 1897, § 610; Burlington v. Leebrick, 43 Iowa 252. Annexation of adjoining lands is by petition to court and elec- tion. City council may consent or submit question to voters of city. Iowa Code, 1897, §§ 617-621. Abutting and contiguous terri- tory laid oft Into lots or parcels, not within the limits of a city or town may be added, on petition by the city council to the district court, which is heard as an ordi- nary action, and judgment is ren- dered accordingly. Iowa Code, 1897, § 611. This method held valid. Ford v. North Des Moines, 80 Iowa 626, 45 N. W. 1031. The laws of Iowa confer upon cities acting under special char- ters the power to extend their Jfew Jersey. Paterson v. Useful Manufacturers, etc. Socy., 24 N. J. L. 385. Ohio. State v. Cincinnati, 8 Ohio CTr. Deo. 689, 8 Ohio Cir. Ct 523. Oklahoma. Tulsa St. R. Co. v. Oklahoma Union Traction Co., Okl. (1910), 113 Pac. 180. boundaries by Including territory not laid oft into lots of two acres or less, as contemplated by the Code. Glass v. Cedar Rapids, 68 Iowa 207, 26 N. W. 75. Louisiana. Laytoh v. Monroe, 50 La. Ann. 121. iVIissouri. Method of consolida- tion of cities is prescribed in ch. XXI, vol. 2, R. S. Mo. 1899. Chapter 142 provides the method of platting cities and towns and additions thereto. The legislature may extend the limits of the municipal corpora- tion even against the consent of the people residing in the terri- tory annexed. A legislative act only requiring the consent of the majority of the people of the city to the extension was sustained. St. Louis T. Russell, 9 Mo. 507; St. Louis V. Allen, 13 Mo. 400. Review and discussion of ex- tending limits in Missouri since the adoption of the Constitution of 1875. Copeland v. St. Joseph, 126 Mo. 417, 29 S. W. 281; R. S. Mo, 1899, S 5895, cities of the foi&th §269 Vote on Extending Boundaries. 609 As mentioned elsewhere, compulsory inforporation of governmental areas is not usually enforced in this coun- try.®^ And so the question of annexation or severance class; § 5508, par. XLIII, cities of second class; § 5752, cities of third class; towns and villages, § 6004; § 6292, cities containing less than 250,000 and more than 20,000; § 22 of art. IX of the Constitution provides the manner in which St. Louis may extend its limits. Par- ker V. Zeisler, 73 Mo. App. 537; State V. Warden, 153 Mo. 319; Llt- son V. Smith, 68 Mo. App. 397. Nebraska. Syracuse v. Mapes, 55 Neb. 738, 76 N. W. 458; State V. Dimond, 44 Neb. 154, 62 N. W. 498; Wahoo v. Thark, 45 Neb. 563, 63 N. W. 840; Hartington v. Luge, 33 Neb. 623, 50 N. W. 957. The Ohio statute provides for annexation by statute. 1 Bates' Annotated Ohio Statute, 1589 et seq. Cities may annex contiguous territory. State ex rel. v. Cincin- nati, 52 Ohio St. 419, 27 L. R. A. 737, 40 N, E. 508; Shugars v. Wil- liams, 50 Ohio St. 297, 34 N. E. 248. Pennsylvania. The legislature has full power to alter the size of boroughs by general laws, act- ing mediately or immediately. Darby v. Sharon Hill, 112 Pa. St. 66, 2 Cent. 521. To change the limits of a bor- ough, an application must be made for the purpose, signed by a ma- jority of the resident freeholders. Due notice must be given as re- quired by law and it must be ap- proved by the grand jury and con- firmed by the court. Darby v. 1 McQ.— 39 Sharon Hill, 112 Pa. St. 66, 2 Cent. 521. Municipal corporations have a right to the extent of the limits fixed by charters, subject only to the law making power. Darby v. Sharon Hill, 112 Pa. St. 66, 2 Cent. 521. Annexation of Camp. Hill, 142 Pa. St. 511, 21 Atl. 978; Annexation of Chester, 174 Pa. St. 177, 34 Atl. 457. Tennessee. Mason v. Loudon, 67 Tenn. 94, 8 Bax. 94. Texas. Under the revised stat- utes providing that, when people living in territory adjacent to a city "to the extent of one-half mile in width vote in favor of annexation," the territory may be annexed. Territory annexed at one time cannot exceed one-half mile in width but it may be any less amount. East Dallas v. State, 73 Tex. 370, 11 S. W. 1030. Washington. Annexation is al- lowed on a vote of the people. Code of Wash. 1896, § 1119. Under the Constitution of Wash- ington, art. 11, § 10, the bound- aries of . municipal corporations cannot be extended by amendment of the charter. State ex rel. v. Warner, 4 Wash. 773, distinguish- ing People v. Oakland. 92 Cal. 611, 56 Pac. 445, and declining to fol- low Westport V. Kansas City, 103 Mo. 141, 15 S. W. 68. Compare People V. Oakland, 123 Cal. 598, 56 Pac. 445. 93. Ch. 3, Creation and Classifi- cation of Municipal Corporations. 610 Municipal Cokpobations. §269 of territory is usually referred to the inhabitants, al- though not so required by virtue of the law applicable.** However, in the absence of constitutional prohibition, as poiilted out elsewhere,®^ the doctrine applicable is that the legislature may change the corporate boundaries without the consent of the inhabitants of the territory' affected thereby.*® Sometimes power is conferred upon a council or gov- erning legislative body to annex contiguous teriritory under specified conditions, even without the consent of 94. Arkansas. Little Rock v. North Little Roclc, 72 Ark. 195, 79 S. W. 785. Colorado. Perry v. Denver, 27 Colo. 93, 59 Pac. 747. , Louisiana. Dees v. Lake Charles, 50 La. Ann. 356, 23 So. 382. Massachusetts. Warren v. Charleston, 2 Gray (Mass.) 84. Missouri. State v. Westport, 116 Mo. 582, 22 S. W. 888. North, Carolina. Watson v. Com'rs, 82 N. C. 17., Texas. Graham v. Greenville, 67 Tex. 62, 2 S. W. 742. 95. § 265 supra. 96. Submitting proposition to eiectors. The legislature may cause to he submitted, as a sin- gle proposition, the question ot annexing several municipalities, providing that if the total vote is in favor of the proposition the annexation is effected thereby, notwithstanding the majority vote in one municipality is contrary. State T. Cincinnati, 8 Ohio Cir. Ct. 523. See, also, St. Louis v. Russell,< 9 Mo. 507. Under particular statute, held, that annexation required the con- sent of the voters. Lum v. Bowie, Tex. (1891), 18 S. W. 142. IVlanner of voting. People v. Los Angeles, 133- Cal. 338, 65 Pac. 749. Sufficiency of form of ballot. People V. Ontario, 148 Cal. 625, 84 Pac. 205; Phillips v. Corbin, 8 Colo. App. 346, 46 Pac. 224. Sufficiency of notice of election. People V. Ontario, 148 Cal. 625, 84 Pac. 205. Citizen — freeholder. The word "citizen," as used in an act pro- viding for referring the proposi- tion of annexation to citizens who are freeholders, means a resident or inhabitant. Morris v. Nash- ville, 74 Tenn. (6 Lea) 337. The husband of a woman own- ing a freehold estate is not a "freeholder" within such act. Mor- ris V. Nashville, 74 Tenn. (6 Lea) 337. §269 Elections to Annexed Teheitoey. 611 the owners.^^ And sometimes such power is granted to be exercised only with the consent of the majority of the residents of the territory sought to be annexed;"* and in such case annexation without it is void.** 97. Indianapolis v. Patterson, 112 Ind. 344, 14 N. B. 551; Forbes V. Meridian, S6 Miss. 243, 38 So. 676. Council may annex. General laws authorizing legislative bod- ies of municipal corporations, by resolution, without notice, to an- nex contiguous territory which has been platted into lots and re- corded are constitutional. Paul v. Walkerton, 150 Ind. 565, 50 N. E. 725. 98. Hale v. Woodruff, 4 Blackf. (Ind.) 184. 99. Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800. And all other statutory require- ments must be followed. I^ayton V. Monroe, 50 La. Ann. 121, 23 So. 99. Elections to annex territory. Where the municipal legislative body Is, authorized to annex ter- ritory with the consent of a ma- jority of the legal voters of the city, the election may be held either before or after the passage of the ordinance annexing the territory. State v. Westport, 116 Mo. 582, 22 S. W. 888. Where only qualified electors are permitted to vote on the ques- tion of annexation and the elec- tion is required to be held in con- formity with the general election laws, a temporary resident who would not be entitled ^ to vote at a general election cannot vote on such annexation. People v. Long Beach, 155 Cal. 604, 102 Pac. 664. Constitutional provisions rela- tive to holding elections apply to a municipal election held on ques- tion of annexation. Gunter v. Gayden, 84 S. C. 48, 65 S. E. 948. Petition to contest election in question of annexation must con- form to statutory requirements. Slgsbee v. Birmingham, 157 Ala. 418, 47 So. 1036. Statute prohibiting elections for annexation of same territory being held within six months of each other construed. State v. Birm Ingham, 160 Ala. 196, 48 So. 843; State V. Martin, 160 Ala. 191, 48 So. 847. A charter provision relative to elections, held not to apply to an- nexation elections which are held partly without and partly within the city. People v. Los Angeles, 154 Cal. 220, 97 Pac. 311. Notice of election and time al- lowed to register and vote. Peo- ple V. Los Angeles, 154 Cal. 220. Statute construed, and qualified voters In both old and annexed territory, held entitled to vote at election held to ratify the annex- ing act. Lutterloh v. Fayettevllle, 149 N. C. 65, 62 S. E. 758. Provisions as to manner of mak ing out ballots, held valid. Has kell V. Long Beach, 153 Cal. 543 96 Pac. 92. Submission of question to elect ors. Vogel v. Little Rock, 55 Ark 609, 19 S. W. 13. Annexation of another munici pality by submitting question to 612 Municipal Cokpokations. §270 § 270. Discretion in submitting question of extension to vote. In view of the fact that, in proceedings to extend or re- duce municipal boundaries, the public rights and powers relating to local self-government are involved, we have seen that most of the state law^ place the final decision with a majority of the voters whose political rights, property and interests are directly concerned. Thus' where the statutes provide for the submission of change of limits by the municipal council, or other tribunal, upon application by petition or otherwise, the courts uniform- ly hold that where the forms of law have been substan- tially followed by the petitioners the council or other tribunal can exercise no discretion whatever but must submit the proposition to the electors, and upon refusal, the courts will compel submission by mandamus} electors. Kansas City v. Steg- miUer, 151 Mo. 189, 52 S. W. 723. Manner of holding election when no special provisions are made rel- ative thereto. Sanson v. Mercer, 68 Tex. 488, 5 S. W. 62, 2 Am. St. Rep. 505. If a majority of the electors voted in favor of annexation, the fact that the proceedings were kept secret and gone through with hastily cannot be complained of. State V. Waxahachie, 81 Tex. 626, 17 S. W. 348. Manner of voting when none is specified. State v. Waxahachie, 81 Tex. 626, 17 S. W. 348; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742. Under the Kentucky statute, § 2761, where, after the ordinance is duly passed proposing annexa- tion of certain territory, residents of such territory file a petition ob- jecting to annexation and the city then repeals the ordinance it is entitled to dismiss the annexation proceedings. Louisville v. Cres- cent Hill, 21 Ky. Law 755, 52 S. W. 1054. 1. The provisions of Vne Code of West Virginia were held to be mandatory and not discretionary, and mandamus was grantedl against the oity council to compeU submission. "Great public inter- est, convenience, and welfare are generally involved in such pro- ceeding, and surely it was never intended to put it in the power of the council to lay a veto upon the public right and power involv- ing self-government. All that is required, or intended to be re- quired, to call into activity this right of the people, is such pe- tition." Shank v. Ravenswood, 43 W. Va. 242, 27 S. E. 223. § 271 Cha^tge of Boundaries. 613 In Illinois the word "may" as used in the statute re- lating to annexation of territory to a city, in referring to the duty of the city council to submit the question to a vote, was construed as "must."^ In Ohio it has been held that where two petitions are presented on the same day though at differe];it hours to township trustees asking the submission of the question of establishing a hamlet within the to-wnship boundaries the trustees may determine which petition they "will direct a vote upon, and in the absence of fraud or bad faith their action in submitting the petition last filed will be held valid.* § 271. Corporate limits changed by municipal corpo- rations or local tribunals — delegation of legis- lative power. Municipal corporations, as ordinarily constituted, pos- sess no power to extend or change their boundaries, as by annexing or detaching territory, unless such power is 2. Whittaker v. Venice, 150 111. R. S. 111. 1897, p. 289, ch. 24, par. 195, 37 N. B. 240. 206. Mandatory. This ruling was Here it was held that where a subsequently followed by the same sufficient petition is presented the court, in construing the statute as trustees will be compelled by man- to the duty of the city council in damns to find whether the facts submitting the question to the peo- stated in the petition exist, and, pie, relating to detaching terri- if so, to detach such territory, tory. Young^ v. Carey, 184 111. When "may" construed as 613, 56 N. E. 960; Roberts v. Peo- "must" or "shall." Steines v. pie, 93 111. App. 645, reversing 80 Franklin Co., 48 Mo. 167; State v. 111. App. 601. Holt Co., 39 Mo. 521; State v. Sa- The statute provided that when- line Co., 67 Mo. 529. ever the owners representing a ma- As to when power Is imperative jority of the area of any land em- or discretionary, see §§ 375 to braced in any village, and being 380 -post. within the limits and upon the 3. Lawrence v. Mitchell, 8 Ohio borders and not laid out into city N. P. 8. or village lots or blocks, shall pe- See in this connection Shank v. tition the city council or trustees Ravenswood, 43 W. Va. 242, 27 S. to detach such territory, it "may E. 223, cited in note 1, in this sec- be detached by ordinance." Kurd's tion. 614 Municipal Coepokations. § 271 derived from the legislature of the state.* But as men- tioned elsewhere compulsory incorporation is usually not enforced in this country, and accordingly it is re- garded as competent for the legislature to commit to ju- dicial or other local tribunals certain functions respect- ing original incorporation. Thus the legislature has power to authorize the inhabitants of a proposed mu- nicipality to designate in their petition for incorporation the boundaries of such municipality.'' Like"wise, if the state constitution does not forbid, the legislature may, within its constitutional power, submit the determi- nation of the question of change of boundaries to local tribunals, e. g., courts, or to the corporate authorities, or to the qualified electors interested. Generally statutes so provide and are sustained. This method does not constitute a delegation of the legislative powers of the state.* Such laws define the conditions upon which territory may be annexed or severed and direct the court or tribunal empowered to act, on finding the necessary- facts to grant the relief, or when the prescribed con- ditions exist submit the final determination to the elec- tors interested.'' 4. Atchison, etc. R. Co. v. Ma- Florida. Saunders v. Municlpal- quilkin, 12 Kan. 301; MoCallle v. ity, 24 Fla. 226; Jacksonville v. Chattanooga, 3 Head (Tenn.) 317. L'Engle, 20 Fla. 344; Pensacola 5. Wardner v. Pelkes, 8 Idaho v. Louisville, etc. R. R., 21 Fla. 333, 69 Pac. 64; Indianapolis v. 492. Patterson, 112 Ind. 344, 14 N. B. UaUo. State ex rel. v. Pocatello, 551. 3 Idaho 174, 28 Pac. 411. 6. § 124 siipra. Illinois. Covington v. East St. 7. §§ 136, 137 supra. Louis, 78 lU. 548; Murray v. Vir- Arkansas. Dodson v. Ft. Smith, ginia, 91 111. 558. 33 Ark. 508; Foreman v. Marianna, Indiana. Logansport v. LaRose, 43 Ark. 324. / 99 Ind. 117, 1 N. E. 805; Collins v. California. People v. Ontario, New Albany, 59 Ind. 396; Stilz v. 148 Cal. 625, 84 Pac. 205. Indianapolis, 55 Ind. 515; Taylor v. Connecticut. Suffleld v. Bast Ft. Wayne, 47 Ind. 274; Strosser Granhy, 52 Conn. 179, 9 Am. & v. Ft. Wayne, 100 Ind. 443; Jef- Png. Corp. Cases, 1, (ersonville v. Weems, 5 Ind. 547; §271 Judicial Change of Boundaeies. 615 However, "it has been doubted if the legislature can pass a valid act giving the courts jurisdiction to dis- connect by decree any part of the territory of a munici- pal corporation of the state merely at the suit of the owner thereof. ' ' * Peru V. Bearss, 55 Ind. 576 ; In- dianapolis V. Patterson, 112 Ind. S44, 14 N. E. 551. Iowa. Burlington v. Leebrlck, 43 la. 252; Glass v. Cedar Rapids, G8 Iowa 207, 26 N. W. 75. Kansas. Callen v. Junction City, 41 Kan. 466; Atchison, etc. R. Co, V. Maqullkin, 12 Kan. 301; To- peka V. Gillett, 32 Kan. 431, 4 Pac. 800; Hurla v. Kansas City, 46 Kan. 738, 27 Pac. 143; Union Pacific R. Co. V. Kansas City, 42 Kan. 497, 22 Pac. 143; Emporia v. Smith, 42 Kan. 433. 22 Pac. 616. Maryland. Prince George's Co. V. Bladensburg, 51 Md. 465; Daly V. Morgan, 69 Md. 460. Massachusetts. Stone v. Charlea- town, 114 Mass. 214. Michigan. , People ex rel. v. Ben- nett, 29 Mich. 415, 18 Am. Rep. 107; Attorney -General v. Sprins- wells Tp., 143 Mich. 523, 107 N. W. 87. Minnesota. In re Brenke, 105 Minn. 84, 117 N. W. 157. Missouri. Kayser v. Bremen, 16 Mo. 88; Kelly v. Meeks, 87 Mo. 396; Copeland v. St. Joseph, 120 Mo. 417, 29 S. W. 281; Gibbony v. Cape Girardeau, 58 Mo. 141; Plattsburg v. Riley, 42 Mo. App. 18; Kansas City v. Stegmlller, 151 Mo; 189, 52 S. W. 723; St. Louis V. Allen, 13 Mo. 400. Nebraska. Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. 813; Omaha V. South Omaha, 31 Neb. 378, 47 N. W. 1113. New Hampshire. Osgood v. Clark, 26 N. H. 307. New York, People v. Carpenter, 24 N. Y. 86. Ohio. Blanchard v. Bissell, 11 Ohio St. 96. Pennsylvania. Devere's Appeal, 56 Pa. St. 163; Hewitt's Apneal, 88 Pa. St. 55; Appeal of Singer, 131 Pa. 365, 18 Atl. 931; Smith v. McCarthy, 56 Pa. St. 359; Darby v. Sharon Hill, 112 Pa. St. 66. Tennessee. Norrls v. Smithville, 1 Swan (Tenn.) 164; McCallie v. Chattanooga, 3 Head (Tenn.) 318; Willett V. Bellville, 11 Le^ (Tenn.) 1; Mason v. Londun, 8 Baxt. (Tenn.) 94. Texas. East Dallas v. State, 73 Tex. 371, 11 S. W. 1030; State v. Waxahachie, 81 Tex. 626, 17 S. W. 348; Ewing v. State, 81 Tex. 172, 16 S. W. 872; Graham v. Green- ville, 67 Tex. 62, 2 S. W. 742; Bu- ford V. State, 72 Tex. 182. Utah. In re Fullmer, 33 Utah 43, 92 Pac. 768; Young v. Salt Lake City, 24 Utah 321, 67 Pac. 1066. Virginia. Henrico County v. Richmond, 106 Va. 282, 55 S. E. 683. Wisconsin. State ex rel. v. For- est County, 74 Wis. 610, 43 N. W. 551. 8. Hastings v. Hansen, 44 Neh 704, 63 N. W. 34. 616 , Municipal Coepoeations. § 271 It was held in Kansas that & constitutional provision that, "the legislature may confer upon the tribunals transacting the county business of the several counties such power of local legislation and administration as it shall deem expedient," is not violated by a statute em- powering cities to extend their boundaries so as to in- clude adjacent land that has been subdivided into blocks and lots.® A statute providing for the detachment of unplatted agricultural lands from municipalities of a certain size is not unconstitutional in Minnesota because it excepts from its operation municipalities having home rule char- ters ; nor for the reason that it requires a court to find the facts in each particular case before entering a decree detaching such lands.^" But a statute which provided for detaching agricul- tural land from villages in certain cases, and prescribed a course of procedure, and provided that after hearing and trial in any particular case, the court may "in its discretion" grant or refuse the same, was held invalid in Minnesota as a delegation of legislative power to eourts.^^ So a statute authorizing county commissioners to make an order enlarging the boundaries of municipal feorporations at the request of the council, if satisfied that it is to the municipality's interest and will not cause manifest injury to individuals, confers on the commis- sioners legislative power to determine whether such change shall be made.^^ 9. Emporia v. Smith, 42 Kan. limits under provisions of general 433, 22 Pac. 616. statutes which it has not accepted. 10. Hunter v. Tracy, 104 Minn. People v. Mabie, 73 Hun (N. Y.) 378, 116 N. W. 922. 495. 11. In re Brenke, 105 Minn. 84, Power cannot be exercised by the 117 N. W. 157. common council when the exclu- 12. Nash V. Glen Elder, 74 sive jurisdiction to annex terri- Kan. 756, 88 Pac. 62. tory to municipal corporations is Conditions for change of limits- given to a board of commissioners A municipal corporation under by statute. Strosser v. Ft. Wayne, special charter cannot change its 100 Ind. 443. § 272 ' Annexation of Teeeitoey. 617 It should be borne in mind, as remarked by Scbolfield, J., in speaking for the supreme court of Illinois that "the same power cannot be either legislative or judicial, as the legislature may incline to retain it, or surrender it to the judiciary. If the boundaries of municipal corpo- rations can be altered and changed by the legislature, in its discretion, and the authorities are all that way, then it is impossible that the courts can be invested with such power. Courts may determine what are the cor- porate limits already established; they may determine whether what is claimed by the municipal authority to be the corporate limits is so or not, and they may in- quire whether the legislative authority has exceeded the powers with which it is invested ; but all this implies an existing law, applicable to the particular subject, and the inquiry is, what is the law, and has it been violated or complied with! Here, however, the inquiry is, what shall the law be, as respects the boundaries of this city; shall it be as designated by its charter, or shall it be as prayed by the petitioners?" Then a court has no au- thority to act as the matter is for the legislature. If a statute requires the court to determine whether or not certain territory should be annexed to a municipal cor- poration, it is invalid as conferring legislative power on the courts.^' § 272. Conditions of annexation — ^what territory may be included — general doctrine. The same lack of uniformity mentioned in preceding sections, also appears in the laws of the several states Where the extension Is Invalid 13. Galesburg v. Hawkinson, all the attempts at municipal gov- 75 III. 152; Willett v. Bellville, 79 ernment in annexed territory are Teiin. (11 Lea) 1. void a6 initio. Douglas v. Kansas Distinction between the employ- City, 147 Mo. 428, 48 S. W. 851. ment o£ judicial and lee;islative The motive of extension rannot tribunals. Merrill v. Sherburne, 1 be questioned where the power ex- N. H. 204. ists. Logansport v. Seybold, 59 Ind. 225. 618 Municipal Coepoeations. § 272 respecting the location, character and condition of the lands that may be annexed, as, whether it he platted or unplatted, or laid off into lots or blocks, whether used in whole or in part for agricultural purposes, whether densely or sparsely populated, whether needed for urban purposes, as for the extension of streets or sowers, gas or water-works system or police regulatiojis, or, to fur- nish business or resident sites, or whether specially adaptable, either present or prospective, for city or town purposes. Unless forbidden by organic law the legislature is not limited with respect of the character of territory that may be embraced within municipal boundaries. How- ever, under most statutes the courts generally hold that the question of the reasonableness of extension of cor- porate limits is subject to judicial review, and if found unreasonable, will be declared void.^* The judicial view will be better understood by indi- cating a few general considerations which have in- fluenced the courts. The conditions under which the mu- nicipal limits may be extended and territory annexed and the nature of such territory are well outlined in general terms in an Arkansas case which is usually foUowed.^^ That case declares that municipal limits may be ex- tended to take in contiguous lands : (1) When they are platted and held for sale or use as town lots. (2) "Whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner. (3) When they furnish the abode for a densely set- tled community or represent the actual growth of the town beyond its legal boundaries. (4) When they are needed for any proper urban pur- pose as for the extension of streets or sewers, gas or 14. KeUy v. Meeks, 87 Mo. 396; 15. Vestal v. Little Rock, 54 Plattsburg v. Riley, 42 Mo. App. Ark. 321, 11 L. R. A. 778 and note, 18. 15 S. W. 891. §272 Annexing Contiguous Lands. 619 water system or to supply places for the abode or busi- ness of residents, or for the extension of needed police regulation; and (5) -When they are valuable by reason of their adapt- ability for prospective town purposes ; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their an- nexation, if it did not appear that such value was en- hanced on account of their adaptability to town uses.^^* But municipal limits should not be extended to take in contiguous lands — (1) When they are used only for purposes of agricul- ture or horticulture and are valuable on account of such use; (2) When they are vacant and do not derive special value from- their adaptability for urban use, al- though their value may be enhanced by reason of their nearness to the city.^* 15a. Arkansas. Woodruff v. Eureka Springs, 55 Ark. 618, 19 S. W. 13; Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13. Illinois. Murray v. Virginia, 91 in. 558. Indiana. Evansvllle v. Page, 23 Ind. 525; Logansport v. LaRose, 99 Ind. 117; CoUins v. New Al- bany, 59 Ind. 396; Taylor v. Ft. Wayne, 47 Ind. 274. Iowa. Monk v. George, 86 la. 315, 53 N. W. 240; Truax v. Pool, 46 la. 256; Durant v. Kauffman, 34 la. 194; Deiman v. Ft. Madison, 30 la. 542; Davis v. Dubuque, 20 la. 458; Fulton v. Davenport, 17 la. 404; Brooks v. Polk County, 52 la. 460. Kansas. Tllford v. Olathe, 44 Kan. 721, 25 Pac. 223; Emporia v. Smith, 42 Kan. 433, 22 Pac. 616. . Kentucky. Louisville Bridge Co. V. Louisville, 81 Ky. 189, 3 Am. & Eng. Corp. Cases, 503; Sharp's Executor v. Dunavan, 17 B. Mon. (Ky.) 223. Missouri. Copeland v. St. Jo- seph, 126 Mo. 417, 432, 29 S. W. 281; Plattsburg v. Riley, 42 Mo. App. 18. Wisconsin. Smith v. Sherry, 50 Wis. 210, 6 N. W. 561. 16. Arkansas. Vestal v. Little Rock, 54 Ark. 321, 324, 11 L. R. A. 778, 15 S. W. 891. Iowa. Morford v. Unger, 8 la, 82. Kentucky. Covington v. South- gate, 15 B. Mon. 491; Cheaney v, Hooser, 9 B. Mon. 330; Latonia V. Hopkins, 20 Ky. L. Rep. 620, 47 S. W. 248. Louisiana. New Orleans v. Mi- choud, 10 La. Ann. 763. Nebraska. Bradshaw v. Omaha, 1 Neb. 16; Hartlngton v. Luge, 33 Neb. 623, 50 N. W. 957; Gotts chalk V. Becher, 32 Neb. 653, 4! N. W, 715. 620 Municipal CoKpoEAiioisrs. §272 In Texas the rule seems to be that the ineorporation will be held valid although a reasonable amount of land not in actual occupation be included in the territory an- nexed; "but if the cases be such as, in effect, to evidence an attempted fraud upon the law, and territory be em- braced that cannot fairly be termed a part of the town, it will be annulled. ' ' " Ordinarily how thickly or how sparsely territory an- nexed to a city or town may be settled is a matter of legislative discretion.^* 17. McClesky v. State ex rel., 4 Tex. Civ. App. 322, 23 S. W. 518. View of Texas courts. Held in Ewing V. State, 81 Tex. 172 that attempt to incorporate a town, containing about 2,000 inhabitants attd covering about two square miles so as to include about ten square miles of rural territory, not part of that city nor of any other city and comprising farms, pastures and unoccupied surveys of land, cannot be sustained, un- der a statute providing that "when a city or town may contain 1000 inhabitants or over, it may Incorporate as a city or town," etc. In State v. Baird, 79 Tex. 63, 15 S. W. 98, it is said that it may not always be practicable to in- corporate a town without includ- ing within its limits some terri- tory devoted purely to pastoral or agricultural pursuits. Some may be allowed for prospective ex- pansion. State ex rel. v. Bidson, "76 Tex. 302, 7 L. R. A. 733, 13 S. W. 263. 18. Kelly v. Pittsburg, 104 U. S. 78, 26 L. Ed. 659. The legislature having confer- red the power of presumption la in favor of the action of the duly constituted authorities. Copeland V. St. Joseph, 126 Mo. 417, 433, 29 S. W. 281. Conditions of annexation — na- ture of territory. Annexing ter-- ritory, nearly all improved and which is necessary to the city for drainage and police purposes is not unreasonable. Kansas City v. Stegmiller, 151 Mo. 189, 52 S. W. 723. An uninhabited tract of country nowhere adjoining an existing vil- lage, and in which such existing corporation has no special inter- est, cannot be made by act of the legislature a part of such village for the mere purpose of increas- ing the corporate revenue by the exaction of taxes. Smith v. Sher- ry, 50 Wis. 210, 6 N. W. 561. Where a statute provides that any portion of a county contain- ing less than a designated number of inhabitants may become in- corporated in a particular man- ner, it does not confine the limits to pre-existing cities or towns. Under this statute It was held not illegal to include 240 acres oi lano which was contiguous lo the town §273 AniJexing Platted Laxd. 621 § 273. Same— deflnitions of "platted," "lots," "blocks." In some states before territory can be annexed legally it must be divided into lots, and blocks and platted;^" and occupied by its owner as a dairy farm. Ferguson v. Snoho- mish, S Wash. 668, 36 Pac. 969. In lUinois a village cannot ex- ceed in extent two square miles. People V. Marquiss, 192 111. 377, 61 N. E. 352. See Vestal v. Little Rock, 54 Ark. 321, 11 L. R. A. 778 and note, 15 S. "W. 891. In California a sanitary district although 51 public corporation, may be annexed to a city, without "consolidation." Its annexation in- volves a cession of its powers and therefore a dissolution. People ex rel. V. Oakland, 123 Cal. 598, 56 Pac. 445. A statute authorizing extension of city limits by ordinance by tak- ing in adjoining lands, etc., which provides that "nothing in this act shall be taken or held to apply to any tract or tracts of lands used for agricultural purposes, when the same is not owned by any rail- road or other corporation," does not conflict with any provision of the Constitution of the United States, when exercised to take in lands belonging to a railroad company which are not used for agricultural purposes, but are oc- cupied by the company for rail- road purposes. Clark v. Kansas City, 176 U. S. 114, 20 Sup. Ct. 284, 44 L. Ed. 392. A statute providing a means for the annexation of territory "to the extent of a half mile in width," to a municipal corpora- tion to which it Is adjacent, means that the territory may be less than a half mile in width but not more. East Dallas v. State, 73 Tex. 370, 11 S. W. 1030. A statute providing that no city shall be "organized" within two miles of a city of the flrst-class un- less such cities are in different counties does not prevent a city of the fourth class from extending its limits to nearer than two miles of a city of the first class. Warren v. Barber Asphalt Pav- ing Co., 115 Mo. 572, 22 S. W. 490. 19. Tilford v. Olathe, 44 Kan. 721, 25 Pac. 223; Porsythe v. Ham- mond, 142 Ind. 505, 30 L. R. A. 576, 41 N. E. 950; Chicago, etc. R. R. v. Nebraska City, 53 Neb. 453, 73 N. W. 952. A city of the first class in Kan- sas cannot extend its limits to in- clude unplatted territory of over five acres, against the protest of the owner thereof unless the same is circumscribed by platted terri- tory that is taken into the city. Union Pac. R. R. Co. v. Kansas City, 42 Kan. 497, 22 Pac. 633. Effect of decision of electors as to embracing unplatted lands. State V. Dover (Minn., 1911), 13C N. W. 74. 622 Mtjuticipal, Cokpokations. § 273 in others, it need not be platted into lots and blocks.^" The term "platted" as used in statutes, in contra- distinction to "unplatted," has a technical meaning, and signifies legal plats, acknowledged and recorded— a plat- ting for town purposes in accordance with the provisions of the statutes.*^ Lot. When property is platted into lots and marked in such a way as to impress upon it the character of urban property, as distinguished from rural use, the subdivisions are regarded as ' ' lots, ' ' within the meaning of the Indiana statute authorizing the annexation of territory platted into lots.^^ "The word lot means any portion, piece or division of land. " ^* It " denotes a single piece of land, lying in a solid body and separated from contiguous land by such subdivisions as are usual to designate different tracts of land, and in the subdivision of a tract of land into city lots, each lot in the city constitutes but a single piece or parcel of land."^* 20. Glass V. Cedar Rapids, 68 22. Glover v. Terre Haute, 129 Iowa 207, 26 N. W. 75; People v. Ind. 593, 29 N. E. 412; Edmunds Marquiss, 192 lU. 377, 61 N. E. v. Terre Haute, 24 Ind. 169; Col- 352;. Salem v. Young (Mo. App., Ilns v. New Albany, 59 Ind. 396; 1910), 125 S. W. 857; State v. EvansvlUe v. Page, 23 Ind. 525. Dimond, 44 Neb. 154, 62 N. W. 23. Buell v. Ball, 20 la. 282, 498; McClay v. Lincoln, 32 Neb. 290. 412, 49 N. W. 282; Lancaster Co. 24. North & South Lumber Co. V. Rush, 35 Neb. 119, 52 N. W. v. Hegwer, 1 Kan. App. 623, 630, 837. 42 Pac. 388. 21. Emsperger v. Mlshawaka, Lot. When used in a technical J.68 Ind. 253, 256, 80 N. E. 543. sense the word "lot" means "a lot Where lands are "platted." For- in a township as duly laid out by sythe V. Hammond, 142 Ind. 505, the original proprietors." White 30 L. R. A. 576, 40 N. B. 267, 41 v. Gay, 9 N. H. 126, 131, 31 Am N. E. 950. Dec. 224. § 273 Annexing Lots ob Blocks, 623 "The word 'lot,' when applied to real estate, is in- definite in its dimensions, but is a portion of land that has been set off or allotted, whether great or small. There is no definite and fixed meaning to the word which is applicable to all cases alike. What would be deemed a lot of land in the country would not be so considered in a city or town. Its ordinarily accepted meaning, when ap- plied to property within an incorporated city or town, is evidently not to be understood as synonymous with the word tract or parcel, but in the sense of a city lot, as bounded and described on the recorded plats of the city, or as subdivided and bounded by conveyances of the owner thereof. * * * It must be property so situated and subdivided, with reference to streets, as to have impressed upon it the character of urban, as con- tradistinguished from rural, use. ' ' *" Sometimes the word "lot" includes the term " block. "2« The size of the lots and blocks of an addition is wholly within the discretion of the o^vners.^'^ A block is a portion of a city inclosed by streets or avenues, and where such block or square is subdivided by alleys or lanes it still remains one block, and the parts thereof, though surrounded by public ways, are not made blocks thereby, but remain subdivisions of the block in- closed by streets or avenues. 28 25. Pilz V. KiUingsworth, 20 27. Emporia v. Smith, 42 Kan. Ore. 432, 436, 26 Pac. 305. 433, 22 Pac. 616. 26. "Lot" includes "block." A "Lot adjoining." Murray v. Vlr- city was allowed to annex land ginia, 91 111. 558. which had been platted into 28. Olsson v. Topeka, 42 Kan. "blocks," although it appeared 709, 21 Pac. 219. from the recorded plat that the Contiguous. Under a statute owner did not intend the plat to authorizing the boundaries of vll- be complete, but intended to sub- lages to be extended so as to in- divide the blocks into lots. The elude adjacent lands, where either term "lots" as used In the statute they will be materially benefited was construed to include "blocks." from the annexation or justice Collins V. New Albany, 59 Ind. 396. and equity require that it be done, 624 Municipal Coepoeations. §274 § 274. Reasonableness of annexation — in general — illustrative cases. As a general proposition, the reasonableness of the extension of corporate boundaries must be determined by the circumstances existing at the time of the pro- ceeding.^® The motive of a city in annexing territory cannot be inquired into in an action to enjoin the collection of taxes levied on the property by the city.^" In determining the reasonableness of the extension of corporate boundaries the extension must be considered as a whole; the question is not whether it is reasonable in each and every part.*^ The mere question of the return of revenue which a municipality may receive from territory sought to be an- nexed is no criterion by which to determine the reason- ableness of the extension.^^ The limits of a city cannot be extended to take in undivided lands merely for the purpose of increasing the city's revenue.*^ contiguous territory may be an- 29. Jackson v. Whiting, 84 nexed though not subdivided into Miss. 163, 36 So. 611. blocks. Syracuse v. Mapes, 55 Extension held reasonable. Neb. 738, 76 N. W. 458. State v. Kansas City, Mo. (1911), Commons. The word "com- 134 S. W. 1007. mons" means public grounds be- 30. Glover v. Terre Haute, 129 longing or appurtenant to a mu- Ind. 593, 29 N. E. 412. nlcipality, and not farm or agricul- 31. Forbes v. Meridian, 86 Miss, tural lands in the vicinity. The 243, 38 So. 676. word was used in a statute au- 32. Forbes v. Meridian, 86 Miss, thorizing the incorporation of 243, 38 So. 676. towns and villages and their com- 33. Langworthy v. Dubuque, 13 mons. State ex rel. v. Small, 131 Iowa 86; Buell v. B^\, 20 la. 282; Mo. App. 470, 476, 109 S. W. 1079. Fulton v. Davenport, 17 la. 404, "Laid off" or. "laid out." Land 407; Henderson v. Lambert, 8 is "laid off" or "laid out" when Bush (Ky.) 607; Hartington v. it is surveyed and measured and Luge, 33 Neb. 623, 629, 50 N. W. marked on the ground. Meacham 957; Smith v. Sherry, 50 Wis. 210, V. Seattle, 45 Wash. 380, 88 Pac. e N. W. 561. 628. § 275 Annexation as Ebasonable. 625 Ordinarily, the annexation of sparsely settled outlying territory wliicli would receive no substantial benefit from tbe municipal government should- be denied.** The fact that the territory will be subject to an ad- dition or municipal tax is no reason why it should not be annexed to a municipality where it will receive benefits in the way of reduced insurance rates, police protection, etc.8^ So the fact that territory annexed to a municipal cor- poration will be subject to taxation to pay a pre-exist- ing debt of the municipality is no objection to its an- nexation.** So the fact that parts of territory annexed to a mu- nicipal corporation are low and marshy and other parts vacant, does not render the annexation unreasonable.*'' Forty acres of low, flat and wet land covered with tim- ber and not platted, but having platted lands upon two sides of it, may be properly included in a city by annex- ation if needed for town purposes or if organized local government is needed to reclaim it and fit it for town use.** An extension of city limits is reasonable where it is necessary for the protection of health that such territory be included.** § 275. Same subject. The extension is not unreasonable if the territory em- braced is nearly all improved and necessary for munici- 34. Latonla t. Hopkins, 104 Wood County, 8 Ohio St. 285, 290. Ky. 419, 47 S. W. 248. 37. Forbes v. Meridian, 86 35. Forbes v. Meridian, 86 Miss. 243, 38 So. 676. Miss. 243, 38 So. 676. 38. Vestal v. Little Rock, 54 36. United States v. Memphis, Ark. 321, 11 L. R. A. 778, 15 S. W. 97 tr. S. 284, 291; Larame County 891. V. Albany County, 92 U. S. 307; 39. Forbes v. Meridian, 86 Chickasaw County v. Sumner Miss. 243, 38 So. 676. County, 58 Miss. 619; Powers v. 1 McQ.— 40 626 Municipal Coepobations. § 275 pal purposes.*" But if the territory is sparsely settled, situated remotely from the thickly settled portion of the municipality, would receive no advantage or benefits from annexation, but would be burdened with additional tax, and the residents of the territory prefer to remain without the municipality, it should not be annexed.*^ When there is no restriction as to the location or char- acter of the territory that may be included within an ex- tension of municipal limits, a city may annex territory including a railroad bridge across a river.*^ Authority to annex abutting or contiguous territory is not authority to annex the territory in an adjoining county.*^ However, some statutes authorize a munici- pal corporation in one county to extend its limits into an adjoining county.** In a Kentucky case where it was shown that the only depot near a municipality was located in the territory sought to be annexed, that the inhabitants were depend- ent on the depot for the shipping of their freight, pas- senger travel, and mail; that there was no sidewalk from the boundary to the depot, and that one was necessary; and that a failure to" annex would retard the prosperity of the municipality and the owners and inhalntants of such territory, it was held proper to annex the same.*'' In an Indiana case it was held proper to annex adja- cent territory where the people residing in such territory had all the advantages of the municipal govern- ment and institutions, including police and fire protec- 40. Kansas City v. StegmlUer, 41. Orlando v. Orlando Water 151 Mo. 189, 52 S. W. 723. & Light Co., 50 Pla. 207, 39 So. An annexation of territory was 532. justified as necessary for the 42. Point Pleasant Bridge Co. growth of the corporation when v. Pt. Pleasant, 32 W. Va. 328, 9 S. every lot In the municipality, ex- E. 231. cept three, had been built upon, 43. Tabor, etc. Ry. Co. v. Dyson, and much of the annexed terrl- 86 la. 310, 53 N. W. 245. tory was used by the citizens as 44. Portsmouth Savings Bank pasture lots. Yancey v. Palrview, v. Smith, 74 Kan. 223, 86 Pac. 462. 23 Ky. L. Rep. 2087, 66 S. W. 636. 45. Collins v. Crittenden, 24 Ky, L. Rep. 899, 70 S. W. 183. § 276 Annexation as Eeasonable. 627 tion and public school privileges, and the municipal cor- poration needed additional revenue for these purposes, and there was no means of ingress or egress from such territory except over the streets of the municipality which it had improved without any contribution from the residents in the territory.*' Where lands are subdivided and platted into lots ranging in size from two and one^half acres to ten acres, some used as residence property and others are open commons, such lands may be annexed under the Indiana statute authorizing the annexation of territory platted into lots.*^ § 276. Reasonableness of annexation — contiguous or adjacent territory. Laws usually require, in express terms, that, to au- thorize annexation the territory must be contiguous or adjacent to the municipal corporation that desires to include it.** Contiguous lands are such as are not separated from the corporation By outside land ; such as are so situated with reference to the corporation that it may reasonably be expected that after annexation they will unite with the corporation in making a homogeneous city, which 46. MoCoy V. Cloverdale, 31 So it is immaterial that part of Ind. App. 331, 67 N. B. 1007. the territory annexed is occupied A statute authorizing munici- as a rural homestead. State v. pal corporations to annex terri- Waxahachie, 81 Tex. 626, 17 S. tory adjacent to its limits, does W. 348. not authorize the annexation of 48. Colorado. Pueblo v. Stan- organized territory, unorganized ton, 45 Colo. 523, 102 Pac. 512. territory only being intended. Indiana. Paul v. Walkerton, Klrkpatrlck v. State, 5 Kan. 673. 150 Ind. 565, 50 N. B. 725. 47. Glover v. Terra Haute, 129 Missouri. Parker v. Zelsler, 73 Ind. 593, 29 N. B. 412. Mo. App. 537. If the territory proposed to be Wisconsin. Chicago, etc. R. annexed in one proceeding com- Co. v. Oconto, 50 Wis. 189, 6 N. prises but one body of land it is W. 607, 36 Am. Rep. 840; Smith v. Immaterial that it extends on Sherry, 50 Wis. 210, 217, 6 N. W. three sides of the municipality. 561. 628 Municipal Corpoeatiohts. § 276 will afford to its several parts the ordinary benefits of local government. But however near they are to the petitioning corporation, if the circumstances are such that it could not reasonably be expected that the parts would amalgamate and form a municipal unit which would afford to each the ordinary benefits of local gov- ernment it would not be proper to annex them. ' ' When actual unity is impracticable, legal unity should not be attempted."*' Several tracts may be annexed as being contiguous if one tract is contiguous to the municipality and the other tracts are contiguous to each other.^" Tracts of land are not contiguous where the only place they join each other is at a point at the corner of the two."^ Lands on opposite side of a river from a city may be contiguous to it within the meaiiing of a statute concern- ing the extension of city limits.^^ 49. Vestal v. Little Rock, 54 not more than 200 feet wide sepa- Ark. 321, 11 L. R. A. 778, 15 S. W. rates it from the corporate boun- 891. daries. Hatch v. Consumers Co., 50. Indiana. Catterlln v. 17 Idaho 204, 104 Pac. 670. Frankfort, 87 Ind. 45; Huff v. La- Property contiguous to a street, fayette, 108 Ind. 14, 8 N. E. 701; means property which abuts on Evansville v. Page, 23 Ind. 525. that street or is bounded, that is, Kansas. Hurla v. Kansas City, actually touched by, the street. 46 Kan. 738, 27 Pac. 143. Adams Co. v. Quincy, 130 111. 566, Pennsylvania. In re Camp Hill 579, 22 N. B, 624, 6 L. R. A. 155. Borough, 142 Pa. St. 511, 21 Atl. When two tracts of land are 978. described as "contiguous," they 51. Wild V. People, 227 111. 556, must be in actual contact with 81 N. E. 707. each other. Holston Salt & Plas- 52. Vestal t. Little Rock, 54 ter Co. v. Campbell, 89 Va. 396, Ark. 321, 11 L. R. A. 778, 15 S. 16 S. E. 274. W. 891; Vogel v. Little Rock, 54 Contiguous territory. Catterlin Ark. 335; Blanchard v. Bissell, 11 v. Frankfort, 87 Ind. 45; Forsyth Ohio St. 96. V. Hammond, 142 Ind. 505, 40 N. • By statute in Idaho subdi- E. 267, 41 N. E. 950, 30 L. R. A, vided land is considered contigu- 576. ous even though a strip of land §277 Annexing Tebritoey : Farm Lands.' B29 Adjacent lands may be annexed if they are in such close proximity to the platted portion as to have some unity of interest therewith in the maintenance of the municipal government.^* § 277. Same— farm lands. Most of the statutes, as usually construed by the courts, permit, to a reasonable extent, farm or agricul- 53. Wahoo v. Tharp, 45 Neb. 563. 63 N. W. 840. Adjacent defined. "The word 'adjacent,' even in its strictest sense, means no ^ more ttian lying near, close or contiguous, but not actually touching. There are de- grees of nearness and when you want to express the idea that a thing is immediately adjacent you have to say so." Hanifen v. Armi- tage, 117 Fed. 845, 851. The word "adjacent" as used in a statute providing for a petition for the construction of a ditch by "adjacent" owners, properly in- cludes lands over which the ditch passes, as well as those lying near the ditch. Kent v. Perkins, 36 Ohio St. 639. In Minnesota "any district, sec- tions, or parts of sections which have been platted into lots and blocks, also the lands adjacent thereto; • • » said territory containing a population of not less than 175, may become incorporat- ed as a village." The courts of that state hold that "lands adja- cent thereto" Include only those which lie so near the center or nucleus of population on the platted lands as to be somewhat suburban in their character, and to have some community of Inter- est with the platted portion in the maintenance of a village govern- ment. State V. Fridley Park, 61 Minn. 146, 63 N. W. 613. For definitions of words "adja- cent," "adjoining," "contiguous," etc., see Traux v. Pool, 46 Iowa 256; Denver v. Coulehan, 20 Colo. 471, 27 L. R. A. 751, 39 Pac. 425; State V. Waxahachie, 81 Tex. 626, 17 S. "W. 348. "Adjacent owners" as used In a statute requiring a petition for a ditch to be signed by a majority of persons resident in the county owning land adjacent to such im- provement, are the owners of land abutting on the improvement. Wormly v. Board of Supervisors, 108 la. 232. ."Adjacent" distinguished from "adjoining." "A.dj,acent" means that two bodies are not widely separated, though not actually touching. "Adjoining" means that they are so joined or united that nothing intervenes. Yard v. Ocean Beach Assn., 49 N. J. Eq. 306, 24 Atl. 729; Hennessy v. Douglas Co., 99 Wis. 129, 74 N. W. 983. 630 Municipal Cobpoeations. §277 tural lands to be included within the limits of the mu- nicipal cdrporation.** However, the reasonable view is tjiat the power to enforce incorporation upon farming lands which are sparsely settled must be expressly given and will not be implied against private consent. The power is strictly construed.'^ But some cases hold that the legislature may arbitrar- ily extend the boundaries of a municipal corporation so that unplatted farming and truck lands are included within the city and subject to municipal taxation; that the courts cannot define the limits of legislative discre- tion, and that the only remedy for such evil is at the ballot box.«8 54. Colorado. People v. Flem- ing, 10 Colo. 553, 16 Pac. 298. Indiana. Chandler v. Kokomo, 137 Ind. 295, 36 N. B. 847; Indiana Imp. Co. V. Wagner, 138 Ind. 658, 38 N. B. 49. Kentucky. Yancey v. Falrvlew, 23 Ky. Law Rep. 2087, 66 g. W. 636. Missouri. State v. Liehte, 226 Mo. 273, 126 S. W. 466; State ex Inf. V. Fleming, 158 Mo. 558; Burnes ex rel. v. Edgerton, 143 Mo. 563, distinguishing State ex rel. V. McReynolds, 61 Mo. 203; Stout V. St. Louis, etc. R. Co., Mo. App. (1910), 125 S. W. 230; State ex rel. v. Young, 61 Mo. App. 494; State v. Kansas City (Mo., 1911), 134 S. W. 1007. Nebraska. State v. Mote, 48 Neb. 683, 67 N. W. 810. Texas. State ex rel. Parrln v. Hoard, 94 Tex. 527, 62 S. W. 1054; Ewing V. State, 81 Tex. 172, 16 S. W. 872; State v. Balrd, 79 Tex. 63, 15 S. W. 98; Judd v. State, 25 Tex. Civ. App. 418, 62 S. W. 543. WasMngton. Ferguson v. Sno- homish, 8 Wash. 668, 36 Pac. 969, 24 L. R. A. 795. Wisconsin. Weeks v. Milwau- kee, 10 Wis. 242, 262. 55. State ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107. 56. Martin v. Dix, 52 Miss. 53, 24 Am. Rep. 661; Norris v. Waco, 57 Tex. 635 ; Washburn v. Oshkosh, 60 Wis. 453, 19 N. W. 364. Farm lands may be included in boroughs in Pennsylvania unless it appears that they do not prop- erly belong to, and constitute a part of, the proposed village. In re Borough of Swoyerville, 12 Pa. Super. Ct. 118. Houses massed In groups sepa- rated by lands used for farming or manufacturing or mining pur- poses may be incorporated as a borough, for such groups do not constitute separate villages. In re Borough of Swoyerville, 12 Pa. Super. Ct. 118. Pennsylvania. Lands that may be included in boroughs in Penn § 278 Annexing Farm Lands. 631 § 278. Same subject. Biit as the territory of a municipal corporation is usually divided into lots and blocks and the residents do not depend on the cultivation of the soil for a livelihood, it is not the policy of the law to annex large tracts of agricultural lands to a municipality, unless, under the circumstances of the particular case they should be in- cluded; for instance, if they should be needed for city lots."'' Likewise, if such lands become so surrounded by the growth of the municipality as to render it necessary to include such lands within the corporate limits this may be done. The general character and fit- ness, use and adaptability of the incorporated district as a whole, and not the use for which a small fraction of it might be ejnployed determines what constitutes a city or a town."* So where agricultural lands derive full value from prospective urban use and not from their use for farming purposes they may be included."" sylvanla. In re Borough of Du- cial municipal taxation for pur- quesne, 147 Pa. St. 58, 23 Atl. 339; poses for whicli tliey were wholly In re Borough of Blooming Valley, unsuited." State ex rel. v. Minne- 56 Pa. St. 66; In re Borough of tonka, 57 Minn. 526, 59 N. W. 972, Little Meadows, 28 Pa. St. 256; In 25 L. R. A. 755. re Yeadon Borough, 14 Pa. County In Washington incorporation Ct. 290 ; In re Village of Narberth, may include dairy farm, not laid 11 Montg. County Law 18; In re out into lots or blocks and occu- Borough of West Philadelphia, 5 pied only by the owner and his Watts & S. 281. family. The incorporation may in* The Minnesota Act does not au- elude some territory for prospect- thorize the incorporation of large Ive expansioi). Ferguson v. Sno- tracts of rural territory having no homish, 8 Wash. 668, 24 L. R. A. natural connection with any vil- 795, 36 Pac. 936. See note, 11 L. lage and no adaptability to village R. A. 778. purposes. In the language of the 57. Hartington v. Luge, 33 Neb. court the purpose of the act evi- 623, 50 ,N. W. 957. dently was "to authorize the in- 58. State ex rel. v. Small, 131 corporation of villages, In the Mo. pp. 470, 477, 109 S. W. 1079. ordinary and popular sense, and 59. Vogel v. Little Rock, 55 not to clothe large rural dis- Ark. 609, 19 S. W. 13; Woodruff v. tricts with extended municipal Eureka Springs, 55 Ark. 618, 19 powers, or subject them to spe- S. W. 15. 632 Municipal Coepoeation-s. ,§278 But farm lands which would derive no material bene- fit from being included within the boundaries of a mu- nicipal corporation and which would be burdened with additional taxes and which are not needed for munici- pal purposes, should not be annexed.^" Thus lands occupied by the proprietor exclusively in his business as a florist and farmer, to which no streets or other town improvements extend, and which the line of city settlements has not reached and which is not laid off for city use and would not be enhanced in value by annexation, but would be subjected thereby to taxa- tion, is not properly included in territory annexed to the city.®^ However, it may be proper to include a small part of agricultural land within the lines necessary to include 60. Connecticut. Gillette v. Hartford, 31 Conn. 351. Iowa. Morford v. Unger, 8 la. 82; Langworthy v. Dubuque, 13 Iowa 86. Kentucky. Wllliamstown v. Matthews, 103 Ky. 121, 19 Ky. L. Rep. 1766, 44 S. W. 387; Cheaney V. Hooser, 9 B. Men. 330. Missouri. State ex rel. v. McRey- nolds, 61 Mo. 203; Lee v. Thomas, 49 Mo. 112. Nebraska. McClay v. Lincoln, 32 Neb. 412, 49 N. W. 282. Ohio. Barker v. State, 18 Ohio 514. Pennsylvania. In re Tullytown, 11 Pa. Co. Ct. 97. 61. Vestal v. Little Rock, 54 Ark. 321, U L. R. A. 778, 15 S. W. 891; Bradshaw v. Omaha, 1 Neb. 16. Farm lands. A law providing for the Incorporation of village or any district platted into lots and blocks "and also land adjacent thereto" was held not to authorize the incorporation of large tracts of rural territory having no nat- ural connection with the village to be incorporated and no adapta- bility to village purposes. State V. Holloway, 90 Minn. 271, 96 N. W. 40. Where the greater portion of the territory proposed to be an- nexed within the limits of a borough consists of unoccupied farm land not connected by lines of buildings or improvements with the settlement proper, the court will not incorporate it in a borough. In re Larksville, 13 Pa. Co. Ct. 351. The limits of an incorporated town, the actual settlement of which is only a square mile in extent cannot be extended to in- clude twenty-eight square miles of territory including farms, ranches and unoccupied lands. State v. Edison, 76 Tex. 302, 13 S. W. 263, 7 U R. A. 733. §279 Detaching Teeeitory. 633 the population having residence near each other and forming the assemblage of residence and business houses constituting the town.**^ § 279. Detachment of municipal territory. In the absence of legislation, a court possesses no power to detach territory from a municipality.®^ Stat- utes usually provide for the detachment or separation of territory from municipal corporations when it appears that the interests of the inhabitants may be better sub- served by being permitted to pass beyond the control of the local corporation.^* Thus lands not needed for 62. state ex rel. v. Baird, 79 Tex. 63, 15 S. W. 98. 63. Hastings v. Hansen, 44 Neb. 704, 63 N. W. 34 ; Rice v. Colo- rado Smelting Co., 28 Colo. 519, 66 Pac. 894. 64. Osmond v. Matteson, 62 Neb. 512, 87 N. W. 311; Osmond V. Smathers, 62 Neb. 509, 87 N. W. 310; 1 Bates' Anno. Oblo St., § 1611. Detachment of municipal terri- tory. A general statute relating to the detachment of territory from municipal corporations ap- plies to a city operating under a special charter, unless expressly excepted. Coughran v. Huron, 17 S. D. 271, 96 N. W. 92. Laws relating to detaching mu- nicipal territory in Illinois do not apply to a town incorporated by special charter. Seibert v. Swayne, 97 111. App. 85. A statute relative to the de- tachment of agricultural lands from cities of 10,000 inhabitants or less, does not apply to boroughs. In re Brenke, 105 Minn. 84, 117 N. W. 157. A statute allowing detachment of territory, held to apply to citlei only, not to towns and to relate to unplatted suburban lots. Meek V. State, 172 Ind. 654, 88 N. B. 299, 89 N. E. 307. Under a statute authorizing the exclusion by a municipality of ter- ritory on its border and within its limits, it is not necessary that each tract should be on the border, but each tract must be a part of the territory on the bor- der which Is to be excluded. Oeh- ler V. Big Stone City, 16 S. D. 86, 91 N. W. 450; Gilbert v. Mor- gan,_ 98 111. App. 281. The "border" of a municinal cor- poration is its corporate limits and not the area adjacent to that part which is in actual use for munici- pal purposes. Anaconda Mining Co. V. Anaconda, 33 Colo. 70, 80 Pac. 144. In Iowa a part of a city or town may be disconnected whether the territory is or is not laid out into blocks or lots, by proper peti- tion to the designated court upon notice and hearing. Iowa Code, 634 Municipal CoKPOEATioisrs. §279 city purp,oses and not benefited by being within the city may be severed.®^ The paramount question is the inter- ests of the territory involved, and it is largely discretion- ary.' The fact that there is no need for the land proposed to be detached by the inhabitants for business or residence purposes, is not controlling, however, it is a matter proper to be considered in ascertaining the merits of the application.®'' 1897, §§ 622, 627; Whiting v. Mount Pleasant, 11 Iowa 482; McKean V. Mount VeVnon, 51 la. 306, 1 N. W. 617; Way v. Center Point, 51 la. 708, 1 N. W. 692. In Indiana proceedings for de- taching territory are conducted by the county commissioners or the city council. Burns' Rev. Stat. Ind. 1894, § 4416 et seq. Indianapolis V. Ritzinger, 24 Ind. App. 65, 56 N. E. 141. In Nebraska the statutory pro- visions for severing municipal territory are available only to the legal electors of the area sought to be detached. State v. Dimond, 44 Neb. 154, 62 N. W. 498. And in that state the owner of unplatted lands, used exclusively for agricultural purposes for sev- eral years, is not estopped from proceedings under the statute to disconnect them from a municipal corporation in which they are lo- cated merely because he tacitly submitted to their inclusion in the corporate limits. Barber v. Frank- lin, 77 Neb. 91, 108 N. W. 146. In South Dakota upon failure of the city council to exclude un- platted lands from the city limits the owners may have them ex- cluded upon application to the proper court. Pplletier v. Ashtoni 12 S. D. 366, 81 N. W. 735. 65. Evans v. Council Bluffs, 65 Iowa 238, 21 N. W. 504. 66. Ashley v. Calliope, 71 Iowa 466; Mosier v. Des Moines, 31 Iowa 174; Monk v. George, 83 Iowa 315, 53 N. W. 240; Evans v. Council Bluffs, 65 la. 238, 21 N. W. 584; Johnson v. Forest City, 129 la. 51, 105 N. W. 353; Pelletier V. Ashton, 12 S. D. 366, 81 N. W. 735; In re Fullmer, 133 Utah 43, 92 Pac. 768. 67. In re Le Roy, 135 la. 562, 113 N. W. 347. Discretion in serving. It is a proper exercise of statutory power to include more or less lands of an agricultural character within the boundaries of a munic- ipal corporation. In re Le Roy, 135, la. 562, 113 N. W. 347. The mere fact that an owner of land, which the statutes author- ized to be detached from a munici- pality, has received some benefits from the municipality does not justify the council in acting un- favorably on his petition for de- tachment. Geneva v. People, 98 111. App. 315. § 279 Detaching Tebeitoby. 635 Laws authorizing the detachment of municipal terri- tory like law providing for annexation, are generally sus- tained' against constitutional objections that they con- stitute delegation of legislative power, or interfere with the right of local self-government f^ and ordinarily they are viewed as mandatory, and hence, when the facts re- quired by the statute have been properly established the court or other body must order the detachment.^" An act providing for the changing of boundaries of municipal corporations and for excluding territory there- from, was construed in California as not intended to provide a means by which a municipality might be prac- tically disincorporated. And a petition for a special elec- tion to be held thereunder should not be granted when the contemplated change of the boundaries would ex- clude nearly the whole of the territory of the munici- pality, nine-tenths of its population and four-fifths of its trustees.'" A statute authorizing county commissioners to pre- scribe new boundaries for incorporated towns when it 68. Laws constitutional. An act ary. Grover Hill v. McClure, 27 of the legislature which provides Ohio Cir. Ct. 376. for the reduction of the territory , 69. Anaconda Mining Co. v. An- of municipal corporations is not aconda, 33 Colo. 70, 80 Pac. 144. unconstitutional because only the Not discretionary. By petition taxpayers within the territory to council — council has no discre- proposed to be stricken off can tion if law is complied with. Gil- make a defense or file a remon- bert v. Morgan, 98 111. App. 281; strance, and because the defense Geneva v. People, 98 111. App. 315 ; Is limited to a showing that such New Holland v. Holland, 99 111. a change will impose unjust bur- App. 251. dens on them. Miller v. Plneville, Laws often make it dlscretion- 28 Ky. L. Rep. 379, 89 S. W. 261. ary with the city council as to dia- An act providing for the detach- connection of territory. Hood- ing of unplatted farm lands from house v.- Briggs, 105 111. App. 116. municipal corporations is not un- IVIandamus to compel city coun- constitutional because it places ell to pass ordinance detaching ter- the power of detaching such lands ritory. Lebanon v. Knott, 24 Ky. in the discretion of the court of Law 1892, 72 S. W. 790. common pleas after proper hear- 70. Wiedwald v. Dodson, 95 Cal. ing. The act does not confer leg- 450, 30 Pac. 580. islative authority upon the judlci- 636 Municipal Coeporations. §§ 280, 281 appears that the present boundaries are extended beyond necessary and useful limits and include an undue amount of vacant farming lands, was construed in Florida as not authorizing the severance of part of one town for the purpose of annexing it to another/^ § 280. Aimexation pending proceedings to organize the same territory as a municipal corporation is void. A proceeding for the annexation of territory to a con- tiguous municipal corporation is illegal when instituted after the filing of a petition for an election to organize the same territory into a village, under the statute, and while the latter proceeding is still pending and undeter- mined.'^^ § ,281. Proceeding to annex or detach territory — in general. The extension or reduction of the boundaries of a city or town is viewed as purely a political matter, entirely within the power of the legislature of the state to regu- late. The established doctrine is that the state legisla- ture has the right to pass such laws, unless restricted by the State Constitution, as in its judgment will best accom- plish the desired end.''* Proceedings to annex or detach territory, or extend or reduce corporate limits,- to be valid, must, in substance, 71. Jacksonville v. L'Engle, 20 exclusive in the one before which Fla. 344. proceedings are first instituted 72. People ex rel. v. Morrow, and which thus acquires jurisdic- 181 111. 315, 54 N. E. 839. ■ tion of the subject." Taylor v. Exclusive jurisdiction. "It is a Port Wayne, 47 Ind. 274; Inde- clear principle of jurisprudence pendent Dist. of Sheldon v. Sioux that when there exists two tribu- County, 51 Iowa 558. nals possessing concurrent and See § 138 supra. complete jurisdiction of a subject- 73. Lenox Land Co. v. Oakdale, matter, the jurisdiction becomes 137 Ky. 484, 125 S. W. 1089, 1091. §281 Procedure to Change Boundaries. 637 follow the essential requirements of the laws authorizing such action.^* In some jurisdictions strict conformity is required/^ while in others it is held that slight irregulari- ties will not invalidate the proceedings.'® A municipal corporation cannot disconnect territory which has been legally annexed by an ordinance pur- porting ,to define its boundaries. That can only be done by a proceeding in compliance with the statutes govern- ing such matter.'^''' So where the boundaries of a munic- ipality have been prescribed by statute, they would not be changed by mere acquiescence of the council in a sur- vey which fixed and marked boundaries of less extent than those prescribed by the statute, even though such 74. Alabama. State v. Birming- ham, 167 Ala. 651, 52 So. 461, hold- ing certain statutory requirements to be merely directory. California. People v. Long Beach, 155 Cal. 604, 102 Pac. 664; Elliott V. Pardee, 149 Cal. 516, 86 Pac. 1087. Colorado. Pueblo v. Stanton, 45 Colo. 523, 102 Pac. 512, holding that proceedings will be enjoined If in excess of corporate powers. Florida. Pensacola v. Louisville, etc. R. Co. 21 Pla. 492. Illinois. People v. Binns, 192 111. 68, 61 N. E. 376; Covington v. East St. Louis, 78 111. 548. Indiana. Windman v. Vin- cennes, 58 Ind. 480; Delphi v. Startzman, 104 Ind. 343, 3 N. E. 937; Forsythe v. Hammond, 142 Ind. 505, 40 N. E. 267, 41 N. E. 950, 30 L. R. A. 576. Kansas. Stewart v. Adams, 50 Kan. 560, 32 Pac. 122. 'Nelira.sTca. Stewart v. Conroy, 33 Neb. 430, 50 N. W. 329. Pennsylvania. Appeal of Bor- ough, 3 Lane. L. Rev. 141. In re annexation of Morrellville Bor- 6ugh, 7 Pa. Super. Ct. 532. South Dakota. Weiland v. Ash- ton, 17 S. D. 621, 98 N. W. 87; Coughran v. Huron, 17 S. D. 271, 96 N. W. 92. Texas. Buford v. State, 72 Texas, 182, 10 S. W. 401; Graham v. Greenville, 67 Tex. 62; State v. Waxahachie, 81 Tex. 626, 17 S. W. 348. 75. Indiana. Windman v. Vin- cennes, 58 Ind. 480. Louisiana. Layton v. Monroe, 50 La. Ann. 121, 23 So. 99. Nebraska. Chicago v. Nebraska City, 53 Neb. 453, 73 N. W. 952. 76. State v. Birmingham, 167 Ala. 651, 52 So. 461; Ford v. North Des Moines, 80 Iowa, 626, 45 N. W. 1031; State ex rel. v. Westport, 116 Mo. 582, 22 S. W. 888. 77. Cleveland, etc. Ry. Co. v. Dunn, 61 111. App. 227. 638 Municipal Corpoeations. §281 '■'■-'"- 1 ; survey had been authorized by ordinance and acquiesced in for thirty yearsJ* If the Constitution or law applicable prescribes the mode in which corporate boundaries may be changed, of course, such mode must be observed.'* Thus where the charter fixes the corporate boundaries, an ordinance pur- porting to extend them is void as an attempt to amend the charter.®" So where the statute required that un- platted lands must be annexed by petition to, and order of, the board of county commissioners, such lands cannot be annexed by resolution of the common council^ which is the proper proceeding for annexing platted lands.®^ So, a statute authorizing a city council to annex adja;cent lands on the written consent of the owners, does not authorize it to annex lands on the petition of owners whose lands are not adjacent.*^ Under some laws alterations of corporate boundaries can be made only upon the application of the municipal authorities.*^ Where the detachment of territory requires the filing of a petition and passage of an ordinance, the act is not completed by the filing of the petition, and when the law authorizing such proceedings is repealed after the filing 78. Martin v. Gainsvllle, 126 Particular statutory provisions Ga. 577. construed. Wilson v. Bristley, 13 79. Westport v. Kansas City, Tex. Civ. \Ap'p. 200, 35 S. W. 837; 103 Mo. 141, 15 S. W. 68.. Pollock v. Toland, 25 Ohio Cir. Ct. 80. Westport v. Kansas City, Rep. 75; In re Washington 103 Mo. 141, 15 S. W. 68. Borough, 26 Pa. Super. Ct. 296. 81. Delphi v. Startzman, 104 Provisions of act, held to he Ind. 343, 3 N. E. 937. cumulative to statutes already ex- 82. Forsythe v. Hammond, 142 isting. Whiting v. Mt. Pleasant, Ind. 505, 40 N. E. 267, 41 N. E. 950, 11 la. 482. 30 L. R. A. 576. Tacit submission of owner of 83. Mason v. Loudon, 67 Tenn. land to its inclusion in the city, (8 Baxt.) 94. does not estop him from taking Who may apply for alteration of proceedings to have his land de- boundaries. Ormond v. Shaw, 50 tached. Barber v. Franklin, 77 Fla. 445, 39 So. 108; Osmond v. Neb. 91, 108 N. W. 146. Smathers, 62 Neb. 509, 87 N. W, 310. § 282 Chai^ge of Boundaries : Peocedure. 639 of the petition but before the passage of the ordinance the detachment is defeated.** In one case part of the lands of a village were dis- connected by ordinance, which lands thereby became part of a township. The ordinance was void but the village and others acted upon it as though it were valid for seven years. The highway commissioners of the town- ship improved the highways on such land and built a bridge thereon at a cost to the town of five thousand dollars. After failing to exercise any jurisdiction over such land for seven years it was held that the village was estopped from claiming the right to tax such land.*' Failure to file certified copies of annexation proceed- ings in the offices of the county recorder and the secretary of the state, as prescribed by law, may be cured by sub- sequently filing them.** § 282, Same — sufficiency of ordinance. By some laAVs in order to annex or detach territory, an ordinance is required, and, to validate the action thereunder, the mandatory provisions of the law relat- ing thereto must, in substance, be followed. ^'^ The territory to be annexed or detached should clearly appear in the ordinance.** An ordinance defining the 84. Phoenix Nursery Co. v. Sei- 87. Illinois. Murray t. Vir- bert, 101 111. App. 147. glnla, 91 111. 558. When act of disconnection of Kansas. Stewart v. Adams, 50 territory is complete under par- Kan. 560, 32 Pac. 122. ticular statute. People v. Binns, Kentucky. Bardstown v. Hurst, 192 111. 68, 61 N. E. 376; Cicero v. 2S Ky. L. Rep. 603, 89 S. W. 724; Hill, 193 111. 226, 61 N. B. 1020. Lebanon v. Knott, 24 Ky. Law 85. People ex rel. v. Maxon, 139 Rep. 1992. 111. 306, 28 N. E. 1074, 16 L. R. A. New York. Matter of Matthews, 178, affirming same v. Maxton, 38 59 N. Y. App. Div. 159, 69 N. Y. 111. App. 152. Supp. 203. 86. Ford v. North Des Moines, Pennsylvania. Carbondale Twp. 80 la. 626, 45 N. >W. 1031. Appeal, 5 Pa. Co. Ct. 339. Question whether particular 88. Ordinance extending limits part of body of land adjoins the construed as to description of city limits Is one of fact. Cicero boundary. Hardesty v. Mt. Eden, T. Williamson, 91 Ind. 541. 27 Ky. L. 745, 86 S. W. 687. 640 Municipal Cokpoeation-s. § 283 boundaries of the municipal corporation as they •will be after enlargement, and not describing particularly the territory to be attached, is suflficient.^^ An ordinance disconnecting territory cannot be passed under the pretense of defining the boundaries.®" An ordinance, including territory not subdivided as required by law, is void.®^ Failure of the ordinance to state that the territory proposed to be annexed is contiguous to the municipal corporation does not render it invalid.®^ Municipal ordinances providing for annexation of ter- ritory are subject to the same tests as other legislation, and if found unreasonable they will be held void.®* § 283. Same — requisites and sufficiency of notice. Where notice of the proceeding is required the law relating to the contents of the notice and the manner and time of giving the same, must be observed.®* The notice should be such as to apprise property- owners of the fact that their interests are involved, 89. state v. Birch, 186 Mo. 205, it is made by three-fifths of the ?5 S. W. 361. taxahles of the territory, instead 90. Cleveland, etc. R. Co. v. of three-fifths of the taxable in- Dunn, 61 111. App. 227. habitants as required by statute. 91. Stewart v. Adams, 50 Kan. Appeal of Carbondale Twp., 5 Pa. 560, 32 Pac. 122; Stewart v. Schoo- Co. Ct. 422. maker, 50 Kan. 573, 32 Pac. 913. 94. Arkansas. Gunter v. Fay- 92. Woodruff V. Eureka Springs, etteville, 56 Ark. 202, 19 S. W. 577. 55 Ark. 618, 19 S. W. 15. Indiana. Cicero v. Williamson, 93. St. Louis V. Weber, 44 Mo. 91 Ind. 541. 547; Copeland v. St. Joseph, 126 Michigan. Pelton v. Ottowa Mo. 417, 431, 29 S. W. 281. County, 52 Mich. 517, 18 N. W. 245. ' Ordinance , defining boundaries Ohio. Franklin v. Croll, 31 Ohio Is not evidence of annexation of St. 647; State ex rel. v. Cincinnati, territory not part of the city at 8 Ohio Cir. Ct. 523, 8 Ohio Cir. the time of the passage of such Dec. 689. ordinancS. School Dist. No. 30 v. Pennsylvania. In re Freeland School Dist., 63 Neb. 44, 88 N. W. Borough, 2 Pa. Dist. 780, 13 Pa. 120. Co. Ct. 399; In re Sheraden Bor- An ordinance is Invalid that is ough, 34 Pa. Super. Ct. 639. based on a petition reciting that §284 Csange op Boundaries. 641 although it is not necessary, in the absence of express statutory provision, to name each property owner of the territory to be annexed.®^ It is generally held that persons entitled to notice can- not complain of the lack or insufficiency of the same if they were present at the hearing.^^ If personal service is required it must be given and if not given the proceedings are void for want of juris- diction, and may be attacked collaterally.^' § 284. Same — sufficiency of petition — illustrative cases. The judicial decisions are in accord in declaring that the essential provisions of the law touching the suffi- ciency of the petition in proceeding to change corporate 95. Woodfin V. Greensburgh, 18 Ind. 203. 96. In re Camp Hill Borough, 142 Pa. St. 511, 21 Atl. 978; In re Incorporation of Edgewood, 130 Pa. St. 348, 18 Atl. 646. But see Gunter v. Fayetteville, 56 Ark. 202, 19 S. W. 577. Time. Catterlin v. Frankfort, 87 Ind. 45. Signing of notice held sufficient. Catterlin v. Frankfort, 87 Ind. 45. 97. Cicero v. Williamson, 91 Ind. 541. Notice required by statute to be posted on territory proposed to be annexed. Franklin v. CroU, 31 Ohio St. 647. Requirement for publication of ordinance is mandatory. State V. Cincinnati, 8 Ohio Cir. Ct. Rep. 523. If the notice is required to be published a certain number of days before presentation of the pe- tition, it must give date of pre- sentation. In re Freeland Bor- ough, 2 Pa. Dist. 780, 13 Pa. Co. Ct. 399. Publication of notice, held suffi- cient. Bloomington v. Dunn, 27 Ind. App. 81, 60 N. B. 958. A motion to quash service on him, by a landowner on account of insufficient petition, is a gen- eral appearance on his part al- though the motion states it is only a special appearance. Mc- Coy V. Cloverdale, 31 Ind. App. 331, 67 N. E. 1007. It may be presumed that notice of such election was properly given from the facts that a large vote was polled and that an at- tempt was made to prove proper notice, though such proof was de- fective. State v. Westport, 116 Mo. 582, 22 S. W. 888. 1 McQ.— 41 642 Municipal Coepoeations. §284 boundaries must be followed, but they vary somewhat as to strictness in this respect.^® While legal provisions relating to this subject are not uniform, they generally require the petition to describe the territory in question, or to be accompanied by a map or plat showing the same clearly, and, also, to set forth the reasons for the annexation or detachment of the ter- ritory. Verification by aiSdavit is also usually re- quired.^® When the statute requires the petition to describe cor- rectly by metes and bounds the territory to be annexed, and a notice of the intended petition to be published, the petition is good where it and the notice correctly 98. Colorado. Fletcher v. Smith, 32 Colo. 473, 81 Pac. 256. Indiana. Stilz v. Indianapolis, 55 Ind. 515; Elston v. Crawfords- ville, 20 Ind. 272. lovM. Ford V. North Des Moines, 80 la. 626, 45 N. W. 1031. Louisiana. Dees v. Lake Charles, 50 La. Ann. 356, 23 So. 382; Lay- ton V. Monroe, 50 La. Ann. 121, 23 Se. 99. Netraska. Hartington v. iMge, 33 Neb. 623, 56 N. W. 957. Pennsylvania. Devore's Appeal, 56 Pa. St. 163; In re Stroudsburg Borough, 4 Pa. Dist. 576, 16 Pa. Co. Ct. 485. South Dakota. Coughran v. Hu- ron, 17 S. D. 271, 96 N. W. 92; Oehler v. Big Stone City, 16 S. D. 86, 91 N. W. 450. 99. Chandler v. Kokomo, 137 Ind. 295, 36 N. E. 847; Stilz ^v. Indianapolis, 55 Ind. 515; McCoy V. Cloverdale, 31 Ind. App, 331, 67 N. B. 1007; Hartington v. Luge, 33 Neb. 623, 50 N. W. 957. Petition — sufficiency. For de- scription of territory, the petition may refer to attached plat, filed as an exhibit and verified by affi- davit. McCoy V. Cloverdale, 31 Ind. App. 331, 67 N. E. 1007. Survey and description, held sufficient. Stilz v. Indianapolis, 55 Ind. 515. Petition upheld. Fletcher v. Smith, 33 Colo. 473, ,81 Pac. 256; Longworth's v. Evansville, 32 Ind. 322; Paul v. Walkerton, 150 Ind. 565, 50 N. E. 725. Petition held bad. Windfall V. State ex rel., 172 Ind. 302, 92 N. E. 57. Statute requiring petition to be filed with county auditor merely provides a sale place of deposit, and same is not in nature of a notice. Pollock v. Toland, 25 Ohio Cir. Ct. Rep. 75. § 284 Petition to Change BoirK'DA.rjES. 643 describe the territory, although it erroneously states the names of property owners.^ A slight variance between the petition and notice in describing the territory where the same boundaries may be ascertained from each by their reference to monu- ments, is immaterial.^ The sufficiency of the reasons set forth in the petition for annexation is generally a matter within the discre- tion of the authorities vested with the power of action.* Where the jurisdiction of the board of county com- missioners in the matter of the amount of the annexation of territory to a city extends only to unplatted lands, a petition which stated that the land proposed to be annexed was part platted and part unplatted was held fatally defective. The fact that such lands are platted or not is jurisdictional and must be alleged and proved. And it cannot be presumed, in aid of such petition, that such platted portion was legally platted.* In Pennsylvania it has been held that where the statute requires the petition to be signed by twenty freehold owners of lots in the territory, such signers must be residents thereof." In South Dakota it was ruled that a petition for de- tachment of territory sufficiently complies with a statute requiring the same to be signed by not less than three- fourths of the legal voters thereof and by owners of not 1. Powell V. Greensburg, 150 3. Chandler v. Kokomo, 137 Ind. 148, 49 N. E. 955. Ind. 295, 36 N. E. 847. Allegation in petition of owners Must set forth reasons for an- of land held sufficient. Ormond v. nexatlon, else petition is defective. Shaw, 50 Fla. 445, 39 So. 108. Elston v. Crawfordsville, 20 Ind. If the territory is properly de- 272. scribed a designation of the own- 4. "Platted" used in this sense ers of a parcel thereof as "the means legal plats executed for heirs of A. H," is sufficient if such town purposes as provided by stat- parcel of land was properly de- ute. Brnsperger v. Mishawaka, scribed in the notice. Elston v. 168 Ind. 253, 80 N. E. 543. Crawfordsville, 20 Ind. 272. 5. Coal, etc. Co. v. Ashland, 1 2. Catterlin v. Frankfort, 87 I-«g. Rec. (Pa.) 130; Appeal of Ind. 45. Devore, 56 Pa. St. 163. 644 Municipal Coeporations. § 284 less than three-fourths in value thereof, where it was signed by the sole owner of the territory sought to be attached who did not reside on the same.® Where an order of the court, appointing commissioners of election, recited that, a majority of the voters signed the petition and the records show proper proof thereof, the validity of the annexation *cannot be attacked on the ground that a majority of the inhabitants of the ter- ritory did not sign.'^ When certain proceedings to annex designated lands are necessary, only when the property owners refuse their consent, the petition need not allege want of such consent, as it will be implied when such proceedings are taken.* A second petition for the same territory as a former petition, not acted upon, may be acted upon by the authorized tribunal in preference to the first where all those entitled to vote under the first petition may vote under the latter.^ Under proper conditions petitions for annexation or detachment of territory may be amended.^" However, 6. Couchran v. Huron, 17 S. D. Ind. 505, 40 N. E. 267, 41 N. E. 271, 96 N. W. 92. 950, 30 L. R. A. 576. Sufficiency of petition, signing, Petition need not state that a etc. Huff V. LaFayette, 108 Ind. landowner had refused his con- 14, 8 N. B. 701; Stilz v. Indian- sent to the annexation, nor that apoUs, 55 Ind. 515. he had not consented thereto. Where statutes require that a Huff v. La Fayette, 108 Ind. 14, petition for severance of land be 8 N. E. 701. signed by the owner of such land, 9. People v. Oakland, 123 Cal. the general manager of a railroad 598, 56 Pac. 445. which leases the land from the 10. Woodruff v. Eureka Springs, owner cannot sign for the same, 55 Ark. 618, 19 S. W. 15; Vestal and his signature does not convey v. Little Rock, 54 Ark. 329, 16 S. any jurisdiction on the village W. 291, 11 L. R. A. 778, affirming board. People v. Chicago, etc. R. 54 Ark. 321, 15 s! W. 891, 11 L. Co., 231 in. 463, 83 N. E. 219. R. A. 778; Pollock v. Toland, 25 7. Ford V. North Des Moines, Ohio Cir. Ct. 75. 80 la. 626, 45 N. W. 1031. Amendments. Petition may be 8. Forsythe v. Hammond, 142 amended in county court by di- § 285 Change of Boundaries. 645 amendment should be on terms which permit those pro- testing against the proceeding to be heard on the peti- tion as amended.^^ § 285. Same — plat or plan of property to be annexed to petition. Laws usually require that a map or plan of the ter- ritory proposed to be annexed be filed with the petition/^ and sometimes it is held that failure to file such plat, as required, invalidates the proceedings.^* However, it may be filed after the filing of the petition but before a con- sideration thereon." Under some laws the owner of lands to be annexed must make the plat and acknowledge the same; if it contains property not his it does not become a part of the municipal corporation.^" mlnlshlng territory but not by en- ter appeal to the circuit court by larging It. Foreman v. Marianna, omitting part of the territory 43 Ark. 324. formerly included. McCoy v. So too, on appeal to circuit Cloverdale, 31 Ind. App. 331, 67 N. court — same to be tried there as E. 1007. an original cause, — such court may 11. Woodruff v. Eureka Springs, amend petition in same way, i. e., 55 Ark. 618, 19 S. W. 15. by diminishing territory. Wilcox 12. Elston v. Crawfordsville, 20 V. Tipton, 143 Ind. 241, 42 N. E. Ind. 272; Armstrong v. Topeka, 36 614. Kan. 432, 13 Pac. 843; Topeka v. Held, under particular statutes Gillett, 32 Kan. 438; In re Tunk- that petition could be amended hannock Borough, 3 Pa. Co. Ct. without an ordinance authorizing 480. same. Vogel v. Little Rock, 55 13. In re Tunkhannock Bor- Ark. 609, 19 S. W. 13; Eureka ough, 3 Pa. Co. Ct. 480. Springs v. Woodruff, 55 Ark. 616, 14. Stilz v. Indianapolis, 55 19 S. W. 15; Shugars v. Williams, Ind. 515. 50 Ohio St. 297, 34 N. E. 248. 15. Armstrong v. Topeka, 36 In annexation proceedings a Kan. 432, 13 Pac. 843. town may amend its petition at- 646 MtTNICIPAL CORPOBATIONS. § 286 A defective plat may be amended by submitting and filing a new and correct plat.^® § 286. Same — ^the evidence. After an annexation has been voted for, the burden to show good cause against it is on those who oppose the proceeding." . Under a statute authorizing annexation of territory not laid out into lots, the fact that the property proposed to be annexed is unplatted must be alleged and proved, as it is jurisdictional.^* The fact that the signers of a petition were taxable inhabitants of the territory sought to be annexed, may be proved by other evidence than the assessment roU.^* In hearing objections to the proceeding evidence is properly admitted to show the location of the property of the objector, e. g., a factory, with reference to the cor- porate limits of the town, its size and capacity ; whether its oflSce is kept in the town or at the factory; to what extent the town is a market for its products, and to what extent such factory and its customers made use of the streets; the number and nature of the various busi- nesses of the town and of the territory; the number of children residing in town and in the territory and else- where attending school; the location of the town, its im- provements, advantages and surroundings, its' institu- tions, its advantage as a trading point, its railroad and 16. In re Annexation of Ches- 17. Dodson v. Ft. Smith, 33 ter Tp., 174 Pa. St. 177, 34 Atl. Ark. 508. 457. 18. Evidence that the land pro- Sufficiency. Where the statute posed to be annexed Is 200 by 800 merely requires the filing of "a feet In size and Is agricultural plat" with the petition, such plat land occupied as a homestead, Is need not show which roads are no proof that it is unplatted, opened, which portions of the land Chandler v. Kokomo, 137 Ind. 295, are built upon, or what Improve- 36 N. E. 847. ments exist. In re Susquehanna 19. In re Annexation of Ches- Tp., 17 Pft. Co. Ct. 398. ter Tp., 174 Pa. St. 177, 34 AtL 457. §286 Change OF Bouj\n)AKiKs. 647 gravel road facilities, the various industries and busi- ness carried on in the town and in the territory, the business relations between the owners of the land in the territory and the mutual benefits between the remon- strant and the town.^" But evidence to show how much territory happened to be in the city is properly ex- cluded." In an action to detach certain territory evidence that the land is not needed for any possible increase of popu- lation, that it is taxed higher, and that the owners are deprived of school advantages which they would enjoy if severed from the corporation, is not sufficient to war- rant a verdict in favor of the city being set aside."^ Under the Colorado statute authorizing the disconnec- tion of territory from municipalities, in event the corpo- ration has not maintained streets, lights and other pub- lic utilities for the period of three years, it was held not necessary that the niunicipality shall have maintained all these things, but the maintenance of any one, e. g., one street, precludes detachment.^^ In a proceeding to detach agricultural land evidence that the taxes were assessed against such land at a higher rate than if it were outside the city is not ad- missible to show that the value of the land has depre- ciated by reason of being within the city. In such case the ordinary rules in civil actions govern the admis- sibility of evidence, except that it may be given by affi- 20. windfall Mfg. Co. v. Emery, Evidence. Written consents 142 Ind. 456, 41 N. E. 814. filed in a proceeding to annex ter- See also, Louisville v. Brown ritory are not admissible as evi- (Ky., 1909), 119 S. W. 1196. dence In a subsequent proceeding 21. Hanson v. Cresco, 132 Iowa to annex part of the same terri- 533, 109 N. W. 1109. tory. Catterlin v. Frankfort, 87 22. Christ v. Webster City, 105 Ind. 45. Iowa 119, 74 N. W. 743. As to what Is proper to be shown 23. Anaconda Mining Co. v. An- by evidence in proceerding to an- aconda, 33 Colo. 70, 80 Pae. 144. nex territory, see McCoy v. Clo- Statutes construed. Oehler v. verdale, 31 Ind. App. 331, 67 N. Big Stone City, 16 S. D. 86, 91 E. 1007. N. W. 450. 648 Municipal Corporations. § 287 davit. And in such proceeding evidence of the motive for the annexation of the land is not admissible;** nor is evidence of ill-feeling between parties interested.*^ In a proceeding to disconnect land, evidence that it is not needed for town purposes may be considered though it is not controlling of the question.** In such proceed- ing the court will not assume ^at the land will be assess- ed higher within than without the boundaries. It will only assume that whatever its location it "will receive a fair assessment according to its value.*"^ Evidence that property was assessed at a higher valuation within than without the boundaries, though not assessed for city pur- poses, has been held not admissible in proceedings to sever territory.*^ . The severance of land may be justified by evidence that it was not benefited by being in the boundaries and was used solely for agricultural purposes.*® § 287. Same — ^the judgment or order. The judgment or order must conform to statutory re- quirements.^" 24. Peek v. Waterloo, 138 la. Passage of ordinance. Evi- 650, 116 N. W. 735; Logansport dence tending to show that an or- V. Seybold, 59 Ind. 225; Glover t. dlnance for the annexation of ter- Terre Haute, 129 Ind. 593, 29 N. ritory was passed and that the city E. 412; McGrew v. Stewart, 51 exercised jurisdiction over the ter- Kan. 185, 32 Pac. 896; Sage v. ritory in question, is admissible Plattsmouth, 48 Neb. 558, 67 N. W. although the ordinance referred to 455. was not produced. Missouri, etc. 25. McCoy v. Cloverdale, 31 R. Co. v. Bratcher, Tex. Civi App. Ind. App. 331, 67 N. E. 1007. (1909), 118 S. W. 1091. 26. In re Leroy, 135 Iowa 562, 30. Peru v. Bearss, 55 Ind. 576; 113 N. W. 347. Davis v. Point Pleasant, 32 W. 27. In re Leroy, 135 Iowa 562, Va. 289, 9 S. E. 228; Point. Pleas- 113 JSr. W. 347. ant Bridge Co. v. Point Pleasant, 28. Hanson v. Cresco, 132 Iowa 32 W. Va. 328, 9 S. E. 231. 533, 109 N. W. 1109. Certificate of grand jury in pro- 29. In re Fullmer, 33 Utah 43, ceedings to annex tSrritoj-y— must 92 Pac. 768; In re Barton, 33 show what. In re Freeland Bor- Utah 50, 92 Pac. 770. ough, 7 Kulp.(Pa.) 107. § 288 Change of Boundaries. 649 The adjudication by the municipal council of the num- ber of signers of the petition is final, in the absence of fraud.^^ Courts may recognize existing lines of subdivisions in annexing territory.^^ In incorporating a borough in Pennsylvania, it is not necessary for the court to pass formally on the request of an owner to have his property omitted from the cor- poration, since the decree of incorporation is, in effect, a legal refusal of such request.^* The court cannot, without the consent of the parties, decide issues raised outside the petition.^* § 288. Same — action to test validity of proceeding. Citizens and taxpayers may institute the appropriate proceeding to test the legality of the annexation or de- tachment of territory,^^ e. g., injunction.^^ Thus if a petition for the annexation of territory is not signed as required by statute, a property owner within such ter- ritory may enjoin the execution of an ordinance for an election founded on such petition.*'^ So a taxpayer may test the validity of proceedings annexing territory, by injunction against the collection of taxes by the city on his property.^* Proceedings to annex territory will be 31. People V. Los Angeles, 133 35. Layton v. Monroe, 50 La. Cal. 338, 65 Pac. 749. Ann. 121, 23 So. 99; Osmond v. Statutes construed. People v. Smathers, 62 Neb. 509, 87 N. W. Ontario, 148 Cal. 625, 84 Pac. 205. 310; Morris v. Nashville, 6 Lea 32. In re Annexation of Mor- (Tenn.) 337. rellville Borough, 7 Pa. Super. Ct. 36. Delphi v. Startzman, 104 532. Ind. 343, 3 N. E. 937; Eskridge v. 33. In re Mill Creek Borough, Emporia, 63 Kan. 368, 65 Pac. 694. 32 Pa. Super. Ct. 465. 37. Layton v. Monroe, 50 La. 34. In re Fullmer, 33 Utah 43, Ann. 129, 23 So. 99. 92 Pac. 768; In re Barton, 33 Utah 38. Dees v. Lake Charles, 50 50, 92 Pac. 770. La. Ann. 356, 23 So. 382. 650 MuNiciPAi, Corporations. §288 enjoined where they are in excess of the corporate powers.*® The action to test the validity of the proceeding must be instituted within a reasonable time.^^ As in original incorporation,*^ quo warranto by the state is a proper proceeding to determine the validi- ty of annexation or detachment proceedings.** Thus if, by the action of a city, it appears that it is going to exercise jurisdiction over territorj^ the state may bring quo warranto, to inquire into the validity of the annexation of such territory.** 39. Pueblo V. Stanton, 45 Colo. 523, 102 Pac. 512. In Pennsylvania a private citi- zen may carry on an action to re- strain a city from putting into ef- fect the provisions of an ordinance to annex territory. Appeal of Pittsburg, 79 Pa. St. 317. Residents of property lately an- nexed to a city by the legislature cannot attack the action of the legislature in so extending the boundary. McCallie v. Chatta- nooga, 40 Tenn. (3 Hea,d) 317. 41. After a delay of eight months without excuse one cannot attack an order annexing terri- tory to a municipal corporation. Black V. Brinkley, 54 Ark. 372, 15 S. W. 1030. 42. § 158 supra. 43. People v. Ontario, 148 Cal. 625, 84 Pac. 205; State v. Des Moines, 96 Iowa 521, 65 N. W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381; State ex rel. v. Birch, 186 Mo. 205, 85 S. W. 361; State ex inf. V. Fleming, 147 Mo. 1, 9. 44. East Dallas v. State, 73 Tex. 371, 11 S. W. 1030. Testing validity of proceedings. Statute relating to contesting an- nexation proceedings, construed. Orlando v. Orlando Water, etc. Co., 50 Pla. 207, 214, 39 So. 532. Statute, held constitutional. Leb- anon V. Creel, 109 Ky. 363, 22 Ky. L. Rep. 865, 59 S. W. 16. In an action to prevent the ex- ecution of an order annexing a tract of land, the complainant can- not raise the question of the power of the city to tax a l)ody of farm land in such tract. Stilz v. Indian- apolis, 55 Ind. 515. Remonstrance against an annex- ation, held not proper evidence be- fore a grand jury when Investigat- ing such annexation. In re Citi- zens of Glade Tp., 168 Pa. St. 441, 32 Atl. 37. In Iowa, if the county attorney refuses, any person interested may bring an action to test the va- lidity of annexation proceedings after securing leave of the dis- trict court. And the right of such person cannot be defeated on the ground that his interest is trifling. State V. Des Moines, 96 Iowa 521, 65 N. W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381. Validity of annexation. Hiatt v. Darlington, 152 Ind. 570, 53 N. E. §289 Change of Boundakies. 651 § 289. Same subject — presumptions — acquiescence. As in original creation, the law will indulge in pre- sumptions in favor of the validity of changes of boun- daries.*' Thus after public acquiescence for a consider- 825; Lewis v. Brandenburg, 20 Ky. Law Rep. 1015, 48 S. W. 978, 20 Ky. Law Rep. 1011, 47 S. W. 862. Remonstrances against annexa- tion. Williamstown v. Matthews, 19 Ky. Law Rep. 1766, 44 S. W. 387; Latonia v. Hopkins, 20 Ky. Law Rep. 620, 47 S. W. 248. An ordinance defining the boundaries of a municipal corpo- ration cannot be admitted as evi- dence of the annexation of terri- tory, not included in the corporate limits prior to the passage of such ordinance. School Dist. No. 30 v. School Dist. of Grand Island, 63. Neb. 44, 88 N. W. 120. In an action to enjoin a munici- pal corporation from extending its limits over a rural homestead, the question of whether the incorpo- ration of such homestead In the limits will have the effect of re- ducing the size of the homestead cannot be tried. Eskridge v. Em- poria, 63 Kan. 368, 65 Pac. 694. Statutory action. Johnson v. In- dianapolis (Ind., 1910), 93 N. B. 17. 45. Illinois. Cleveland, etc. R. R. v. Dunn, 61 111. App. 227. Indiana. Johnson v. Indianapo- lis, Ind. (1910), 93 N. E. 17; Mul- Ukin V. Bloomington, 72 Ind. 161; Lake Erie, etc. R. Co. v. Alexan- dria, 153 Ind. 521, 55 N. B. 435; Huff V. Lafayette, 108 Ind. 14, 8 N. E. 701. South Dakota. Redfleld Inde- pendent School District, 14 S. D. 229, 85 N. W. 180. Utah. GlUmor v. Dale, 27 Utah 372, 377, 75 Pac. 932. Minor irregularities do not af- fect the validity of the extension. State v. Craig, 21 Ohio Cir. Ct. R. 13, 11 O. C. D. 348. Presumptions. In a collateral attack upon proceedings of the county board it will be presumed that the petition was the petition of the council and that before act- ing upon it, the county board as- certained and determined that fact. Huff V. Lafayette, 108 Ind. 14, 5 West. Rep. 882. Where such petition shows that the lands were contiguous, and that a plat was filed with the pe- tition, but not set out in the com- plaint attacking the proceedings collaterally, the presumption is that it appeared from the plat that these lands were contiguous to other lands which were contig- uous to the city. Huff v. Lafay- ette, 108 Ind. 14, 5 West. Rep. 882. The action of a common coun- cil in refusing to detach territory from a municipality is presump- tively correct, and should not be disturbed by the court unless clearly shown that no injustice would be done to the remaining municipality. Qualey v. Brook- ings, 18 S. D. 581, 101 N. W. 713. 652 Municipal Coepokation'S. § 289 able period presumptions in favor of the regularity of proceedings to attach territory to a municipal corporation •will be indulged, and, this is true although irregularities which would have defeated the annexation, if action had been taken in time, appears.** So, where territory is annexed under a law which is unconstitutional because special in its character and the city exercised municipal functions over the new territory for a period of four years without objection and its operations would be seri- ously interfered with by holding annexation void, it was held that the complainant would be estopped from urging invalidity of the annexation.*'^ Sometimes' specific acts or mere acquiescence on the part of a complainant will preclude him from contesting. Thus where the owner of farming lands included within a borough, failed to make objections to their inclusion at the right time, his petition to have them excluded from a new borough, to which such lands properly belong, which is being formed out of the old one, will not be heard.** Likewise the owner of farming land lying ad- jacent to a city of the second class in Kansas who volun- tarily subdivides it into blocks and lots, thus creates the conditions upon which cities of that class are authorized to annex such territory, and cannot defeat such annexa- tion by a claim that the extent of his homestead is reduced to one acre without his consent.** And where the owner of land adjoining a flourishing to-wn lays out his land into lots and sells them to people who build their homes 46. Sherry v. Gilmore, 58 Wis. The question as to including 324; Black: v. Brinkley, 54 Ark. farm lands in a borough must he 372, 15 S. W. 1030. raised when incorporating, other- See Hatch V. Consumers Co., 17 wise if included the decision is Idaho 204, 104 Pac. 670. conclusive. Borough of Hammels 47. State ex rel. v. Des Moines, town v. Brunner, 2 Dauph Co. 376 96 Iowa 521, 65 N. W. 818, 31 Taylor Borough, Atherton's Ap L. R. A. 186, 59 Am. St. Rep. peal, 160 Pa. St. 475, 28 Atl. 934 381. 49. Emporia v. Smith, 42 Kan, 48. In re Collingdale Borough, 433, 22 Pac. 616; Tilford v. Olathe, 11 Pa. Co. Ct. 105. 44 Kan. 721, 25 Pac. 223. 290 Attacking Change qf Botjndakies. 653 on them, and in fact had huilt up a town, he cannot be heard to complain if the corporate limits are extended so as to include his land.®" So one whose lands have been annexed to a municipal corporation and who has ac- quiesced in the annexation for a long time, and has participated in the municipal government, will be estopped to question the legality of the annexation.®^ So where one participated in the proceedings whereby his land was annexed and acquiesced in the jurisdiction of the municipal authorities over his land for three years, he will be estopped from attacking them collater- ally when the question raised is not one of jurisdiction.®^ However, a property-owner in annexed territory does not estop himself from contesting the validity of the proceedings ordering the annexation where there is no jurisdiction to make the order, by voting at municipal elections and offering himself as a candidate for office.®^ § 290. Same — collateral attack on amiexation proceed- ings. A law of the legislature extending the limits of a municipal corporation is a governmental act of which persons taken into the municipality by such act cannot complain. They have no voice in the matter, no power to resist; no legal right of theirs is impinged thereby.®* As stated elsewhere, ordinarily the existence of a municipal corporation is not subject to collateral attack but may only be questioned by the state in a direct pro- ceeding.®® The same principle applies when it is sought 50. Cheaney v. Hooser, 9 B. Wash. 605, 41 Pac. 923, 29 L. R. Mon. (Ky.) 330; Bradshaw v. A. 445, 50 Am. St. Rep. 911. Omaha, 1 Neb. 16. 53. Strosser v. Port Wayne, 100 51. Graham v. Greenville, 67 Ind. 443. Tex. 62, 2 S. W. 742; Strosser v. 54. MoCallie v. Chattanooga, 40 Port Wayne, 100 Ind. 443. Tenn. (3 Head) 317. 52. Kuhn v. Port Townsend, 12 55. 158 ante. 654 Municipal Gokpokations. §290 to question the change of corporate boundaries by an- nexation or detachment proceedings.** Thus the consti- 5€. Illinois. People v. York, 247 lil. 591, 93 N. E. 400; Ogle T. Belleville, 143 111. App. 514, affirm- ed, 238 111. 389, 87 N. E. 353; Cleveland, etc, R. Co. v. Dunn, 61 111. App. 227, 63 111. App. 531; Peo- ple V. Whltcomb, 55 111. 172. Indiana. Delphi v. Startzman, 104 Ind. 34,3, 3 N. E. 937; Powell V. Greensbury, 150 Ind. 148, 49 N. E. 955; Huff v. Lafayette, 108 Ind. 14, 8 N. E. 701; Logansport v. Seybold, 59 Ind. 225; Cicero v. Wil- liamson, 91 Ind. 541; Logansport V. La Rose, 99 Ind. 117. Iowa. McCain v. Des Moines, 128 Iowa 331, 103 N. W. 979; State ex rel. v. Des Moines, 96 Iowa 521, 65 N. "W. 818. Kansas. Gardner v. Benn, 81 Kan. 442, 105 Pac. 435; Chaves v. Atchison, 77 Kan. 176, 93 Pafc. 624, following Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; McGrew v. Stewart, 51 Kan. 185, 32 Pac. 896. Missouri. Salem v. Young (Mo. App., 1910), 125 S. W. 857. Nebraska. Hemple v. Hastings, 79 Neb. 723, 113 N. W, 157. Pennsylvania. Powell v. Scran- ton, 227 Pa. St. 604, 76 Atl. 505. Texas. Short v. Gouger, Tex. CiT. App. (1910), 130 S. W. 267; Missouri, etc. R. Co. v. Bratcher, Tex. Civ. App. (1909), 118 S. W. 1091; Lum v, Bowie (Tex., 1891), 18 S. W. 142. Washington. Kuhn v. Port Townsend, 12 Wash. 605, 41 Pac. 923, 29 L. R. A. 445, 50 Am. St. 911; Frace v. Tacoma, 16 Wash. 69, 47 Pac. 219. Validity of annexation — how questioned. The legality of the an- nexation by a municipal corpora- tion of certain territory cannot be questioned by an information in the nature of quo warranto against the officers of the corporation. Stultz V. State, 65 Ind. 492. The validity of an act of the legislature to extend the limits of a municipal corporation cannot be tested by a writ of quo warranto questioning the authority of the municipal officers to exercise their functions within the extended ter- ritory. People ex rel. v. Whit- comb, 55 111. 172. A private citizen may maintain a bill to restrain a municipal cor- poration from carrying into effect an ordinance to annex territory. Pittsburg's Appeal, 79 Pa. St. 317. Where an ordinance of annexa- tion was passed, and steps had been taken preparatory to levying a tax, and the territory was recog- nized as a ward of the city, such are sufficient indications of a pur- pose to exercise corporate fran- chises of the city over such ter- ritory, to sustain quo warranto to determine the validity of the pro- ceedings of annexation. East Dal- las V. State, 73 Tex. 370, 11 S. W. 1030. When only collaterally involved, corporate limits may be, prima facie, considered as including all territory over which the corpora- tion exercises jurisdiction. Cleve- land, etc. Ry. Co. v. Dunn, 61 111. App. 227. ^ 290 BouNDABiES : Change : Collateral Attack. 655 tutionality of a statute for the extension of boundaries of municipal corporations, apparently regular in form and fairly indicative of the legislative will, is not subject to collateral attack in a proceeding to enforce a city ordi- nance within territory annexed by proceedings author- ized by such statute.'*'' So in an action against a railroad company, for killing domestic animals within the limits of a city, it lias been ruled in Illinois that the court can- not determine wbetber or not the city has lawfully exercised its powers to extend its boundaries.^* Some courts have denied,®^ what others have affirmed that, the proceeding extending corporate boundaries may be attacked in an injunction suit to stay the collec- tion of taxes on property brought into the municipality by such action."" In "Wisconsin the validity of an order of the county board changing the boundaries of a to'wn cannot be questioned in a collateral proceeding except, perhaps, when the order is one which the board had no authority to make, under any circumstances.^^ The position taken by some courts is that an attack on the mere expansion of a city is not an attack on its corporate life or entity, and therefore such an attack 57. Topeka v. Dwyer, 70 Kan. nexed to a municipal corporation 244, 78 Pac. 417. without the consent of the electors 53. Cleveland, etc. Ry. Co. v. of such territory. Lum y. Bowie Dunn, 63 111. App. 531 (Tex., 1891), 18 S. W. 142. 59. People v. York, 247 111. 591, Also in a replevin case against 93 N. E. 400; Sage v. Plattsmouth, the municipality. Kelly v. Meeks, 48 Neb. 558, 67 N. W. 455; Kuhn v. 87 Mo. 396. Port Townsend, 12 Wash. 605, 50 See State ex rel. v. Ohio & I. M. Am. St. Rep. 911, 29 L. R. A. 445, L. Co., 84 Mo. App. 32; Glover v. 41 Pac. 923; Frace v. Tacoma, 16 Terre Haute, 129 Ind. 593, 29 N. Wash. 69, 47 Pac. 219. E. 412. 60. Parker v. Zeisler, 73 Mo. See notes to True v. Davis, 133 App. 537; Copeland v. St. Joseph, 111. 522, 6 L. R, A. 266, 22 N. E. 126 Mo. 417, 29 S. W. 281; Deeds 410; Daly v. Morgan, 69 Md. 460, V. Lake Charles, 50 La. Ann. 356, 1 L. R. A. 757. 23 So. 382. 61. Schriber v. Langlade, 66 An injunction will lie to re- Wis. 616, 29 N. W. 547, 554. strain taxes levied on territory an- 656 Municipal Corporations. § 290 may be made in a collateral proceeding, but when so made it should be confined to the narrowest limit? and keenly scrutinized.®^ And some courts hold as in Indiana, that the validity of proceedings to extend the limits may be collaterally attacked on jurisdictional grov/n,ds. And where conditions prescribed by statute for jurisdiction do not exist they are open to attack collaterally even though the records of the council state they do exist.^^ But in West Virginia it was ruled that, if the record of the council, which was required by law to keep a record, recites all facts necessary to give it jurisdiction, the proceedings are not open to attack collaterally even though the facts as recited by the record were not true.®* In Indiana it is held that, irregularities which do not render the proceedings void, do not subject them to col- lateral attack.®® To illustrate, they are not open to col- lateral attack, where the complaint does not allege want of jurisdiction of the authorized tribunal ordering such extension, as it is only void proceedings that can be col- laterally assailed.®* Thus where an ordinance, discon- necting land from a village, is void because the petition to disconnect was not presented by the owner of the land, in Illinois it may be collaterally attacked. The rule that where inferior bodies of limited jurisdiction are author- ized to act on a petition, the filing thereof calls into ex- ercise the jurisdiction, and, if in the proceedings it has committed an error, the action cannot be attacked col- laterally, is applicable only, in the 'opinion of that court, 62. State ex rel. v. Birch., 186 limits. Hemple v. Hastings, 79 Mo. 205, 85 S. W^ 361. Neb. 723, 113 N. W. 187. The rule that proceedings to ex- 63. Forsythe v. Hammond, 142 tend the boundaries of a city can- Ind. 505, 40 N. E. 267, 41 N. E. not be coUateraHy attacked, does 950, 30 L. R. A. 576. not apply where there is no at- 64. Shank v. Ravenswood, 43 tempt to exercise jurisdiction by W. Va. 242, 27 S. E. 223. the body exercising the power to 65. Pavey v. Braddock, 170 Ind. extend such boundaries, except the 178, 84 N. E. 5. act of the county clerk in enter- 66. Terre Haute v. Beach, 96 ing upon the tax list city taxes Ind. 143. against property outside the city §291 Review of Change of Boundakies. 657 where the petition is presented by some one authorized to present it by the law which confers powers on the body to act on it.®'' § 291. Same — review. Usually appeals, to review the action relating to the annexation or severance of territory are allowed.** In Illinois the action of the trustees of a village in annexing 67. People ex rel. v. Chicago, etc. R. Co., 231 III. 463, 83 N. E. 219. Questioning collaterally. The reasonableness of the extension may be inquired into collaterally in a suit to enforce rights claimed under such extension, as a suit on taxbills for improvements. But the reasonableness will be pre- sumed, and the burden is on the objector to show the contrary. Sa- lem V. Young (Mo. App,, 1910), 125 S. W. 857. Such proceedings can only be questioned by quo warranto. Peo- ple V. York, 247 111. 591, 93 N. E. 400. They cannot he attacked collat- erally unless it appears from the face of the proceedings that the council had no jurisdiction. John- son V. Indianapolis, Ind. (1910), 93 N. E. 17. 68. Meek v. State, 172 Ind. 654, 88 N. B. 299, 89 N. E. 307; For- sythe V. Hammond, 142 Ind. 505, 40 N. B. 267, 41 N. E. 950, 30 L. R. A. 576; Martin v. Simpklns, 20 Colo. 438, 38 Pac. 1092, holding cit- izens and taxpayers may take. Appeals and review. Proceed- ings on a petition to disconnect territory are at law and can be reviewed only on writ of error. Heebner v. Orange City, 44 Fla. 159, 32 So. 879. Statutory requirements as to ap- peals in annexation proceedings construed. Phillips v. Corbin, 8 Colo. App. 346, 46 Pac. 224. No appeal may be taken from an order of a county board annexing part of certain lands sought to be annexed, although such order be void. Peru v. Bearss, 55 Ind. 576. No appeal lies from an order of a board of commissioners annex- ing land. Windman v. Vincennes, 58 Ind. 480. Construction of statute giving certain persons right of appeal in annexation proceedings. Pitts- burg, etc. R. Co. V. Indianapolis, 147 Ind. 292, 46 N. E. 641. Appeal from an ordinance lies to circuit court, to be tried on is- sues to be made up. Yerger v. Greenwood, 77 Miss. 378, 27 So. 620. An appeal from the district court, in a proceeding to detach territory, the decision of the dis- trict judges will not be disturbed except it is shown that he made an important mistake of fact, or an erroneous inference of law. Mich- aelson v. Tilden, 72 Neb. 744, 101 N. W. 1026; Gregory v. Franklin, 77 Neb. 62, 108 N. W. 147. 1 McQ.— 42 658 Municipal Coepoeations. § 291 territory to the village by ordinance on petition is legis- lative, questions of fact only being presented for de- termination, and is not reviewable by certiorari.^^ Statutes authorize appeal to courts of general juris- diction from final decisions of board of "^commissioners, or county courts and on such appeal the matter is usually triable de novo.""^ In a proceeding to annex territory in Kansas in an appeal to the district court from a decision of the county commissioners only such questions may be considered as are judicial in their nature.''^ On appeal, where conditions are not shown, weight should be given the decision of the trial judge relative thereto.''^^ On an appeal from the decision of a municipal council in refusing to detach territory, its decision is presump- tively correct.''^ The court cannot go outside the record to ascertain whether or not the council had sufficient reason for its action, or had exercised proper .discretion, in annexing landJ* The discretion of municipal authorities in passing on the sufficiency of the reasons for annexation will not be interfered with by the higher courtJ" The decision of the trial court in proceedings to detach territory will not be disturbed on appeal unless there has been a manifest abuse of discretion^* And it is not an abuse of discretion to deny a severance of land within 69. Whittaker v. Venice, 150 72. Wllliamstown v. Matthews, 111. 195, 37 N. E. 240. 103 Ky. 121, 19 Ky. L. Rep. 1766, 70. Paul V. Walkerton, 150 Ind. 44 S. W. 387. 565, 50 N. E. 725; George v. Walk- 73. Qualey v. Brookings, 18 S. erton, 150 Ind. 703, 50 N. E. 1124. D. 581, 101 N. W. 713. On appeal from the judgment of 74. In re Clalrton Borough, 34 a county court denying - annexa- Pa. Super. Ct. "Ji. tlon, the trial in the circuit court 75. Windfall Mfg. Co. t. Is de ndvo. Dodson v. Ft. Smith, Emery, 142 Ind. 456, 41 N. E. 814. 33 Ark. 508. 76. Ashley v. Calliope, 71 Iowa 71. Nash V. Glen Elder, 74 Kan. 466,' 32 N. W. 458. 756. 88 Pac. 62. §§292, 293 Change of BouNOAteiES. 659 a block of the business portion of the town, and part of which is desirable for residences J'' A finding will not be disturbed as against the evidence where the evidence was about equally divided on the question of advisability of annexing territory.^* § 292. Defects may be cured. Curing defects in the change of corporate boundaries, by the annexation or detachment of territory, is author- ized by statute,''* but a curative statute attempting to legalize annexation proceedings which are entirely void, is inoperative.*" § 293. Effect of changing of limits in general — illustra- tive cases. The annexed territory may be governed under the power and jurisdiction of the municipal corporation for 77. Monk v. George, 86 Iowa 315, 53 N. W. 240. 78. Kentucky Wagon Mfg. Co. V. LoulsviUe, 20 Ky. L. Rep. 408, 46 S. W. 499. Effect of finding of trial court. The supreme court wUl not review reasons assigned passed upon by the board of county commission- ers and the circuit court, unless the decision Is so flagrantly Im- proper as to constitute an abuse of discretion. Lake Erie & W. R. Co. V. Alexandria, 153 Ind. 521, 55 N. B. R.ep. 435; Paul v. Walk- erton, 150 Ind. 565. Finding that failure to annex certain territory to certain corpo- ration would materially retard its progress, etc., held would not be disturbed on appeal. Collins v. Crit-, tenden, 24 Ky. Law Rep. 899, 70 S. W. 183. Proceedings to sever will not be disturbed, on appeal, unless the trial court committed an impor- tant mistake of fact, or made a wrong inference of fact or law es- pecially where the trial judge In- spected the premises before ren- dering judgment. Chapin v. Col- lege View (Neb., 1911), 129 N. W. 297. 79. Edmunds v. Gookins, 20 Ind. 477; Short v. Gouger, Tex. ClY. App. (1910), 130 S. W. 267. 80. Strosser v. Ft. Wayne, 100 Ind. 443. ,. y^- 660 Municipal Coeporations. § 293 all urban purposes, in like manner as the original limits were governed, prior to the change.*^ The mere extension of corporate limits will not have the effect of enlarging the territory of other public cor- porations within the municipality, as school districts.*^ When a municipality annexes territory embracing a county road, the title in fee to such part of the county road vests in the municipality in trust for the public.^^ On the addition of territory embracing a public high- way and a bridge over a stream the municipal authorities acquire at once the right to exercise jurisdiction over the bridge and are chargeable with the duty of keeping it in repair.^* ' The jurisdiction of state courts is not changed hj the extension of the boundaries.^" The annexation of territory must not impair vested rights.*^ Hence, extension of boundaries will not affect the rights of a turnpike company whose turnpike is partly included in the territory annexed.*'^ So when a township 81. School uses. Trustees of District v. Goodding, 120 Mo. 67. Schools V. Board of School Inspect- See State ex rel. v. Wardell, 153 ors, 115 111. App. 479. Mo. 319, 322. Streets. The local corporation 83. Akron & C. F. Rapid Transit assumes the same duties and lia- Co. v. Erie Ry., 28 Ohio C. C. 36, bilities as to the streets in the an- 38. nexed territory as rest upon it in 84. Polk County Comrs. v. Ce- reference to the streets of its ori- dartown, 110 Ga. 824, 36 S. B. 50; ginal territory. Ehrgott v. New Ehrgott v. New York, 96 N. Y. York, 96 N. Y. 264, 48 Am. Rep. 264, 48 Am. Rep. 622. 622, 6 Am. & Eng. Corp. Cases 31; Same as to street railway. Peter- Spring Water Co. v. Monroe, 55 son v. Tacoma R., etc. Co., Wash. Wash. 195, 104 Pac. 202. (1910), 111 Pac. 338. However, the extension of 85. Harrison v. Hernsheim, 28 boundaries so as to include a cem- La. Ann. 881. etery does not authorize the mu- 86. Williams v. Nashville, 89 nicipal corporation to open a street Tenn. 487, 15 S. W. 364; Gotts- through the cemetery where for- chalk v. Becher, 32 Neb. 653, 49 N. bidden by express statute. Egypt W. 715. Street, 2 Grant Cas. (Pa.) 455. 87. Cincinnati Turnpike Co. v. 82. State ex rel. v. Henderson, Cincinnati, 4 Am. L. Rec.-(Ohio) 145 Mo. 329, 46 S. W. 1076; School 325. § 293 Effect of Annexing Territoey. 661 whicli has granted a franchise to a railway company to lay its tracks afterwards becomes part of a borough duly incorporated the latter ha§ no power to revoke the fran- chise granted by the township.®^ So the extension of the boundaries of a municipal corporation does not affect its property rights. ^^ Where territory which was a part of a municipal cor- poration when taxes by law a lien thereon, fell due, and which was about to be sold in satisfaction thereof, was detached before sale day, it was held, the power of the city authorities to sell the same for taxes was logt, if no provision therefor was made by law as to the territory detached.^" A municipal ordinance, regulation or contract design- ed for the corporation at large operates throughout its boundaries whatever their change.''^ Severance operates as an extinguishment of the rights of the city in the streets and alleys of the portion withdra^wn.®^ A statute which provided that tcBritory annexed to a municipal corporation should not receive the benefit of 88. Jersey City, H. & P. St. Ry. of South Hampton shall be exempt Co. V. Garfield, 68 N. J. L. 587, 53 from taxation so long as the same Atl. 11. shall belong to that corporation," See al^o, Pennsylvania Water though the municipal franchise Co. V. Pittsburg, 226 Pa. St. 624, on such land be given to the town 75 Atl. 945. of Seabrook it transferred no ti- 89. Heizer V. Yohn, 37 Ind. 415; tie to any portion of said lands Springwells v. Wayne County, 58 owned by the town of South Hamp- Mich. 240; Milwaukee v. Milwau- ton, and trespass would not be kee, 12 Wis. 93. against one occupying a portion Property rights. Under an thereof. Seabrook v. Fowler, 67 act providing "that all the lands, N. H. 428. nonresident as well as resident 90. Deason v. Dixon, 54 Miss. and the waters lying easterly 585. thereof to the sea, shall belong to 91. People v. Detroit United the town of Seabrook for the pur- Ry., 162 Mich. 460, 463, 125 N. poses of taxation and jurisdiction W. 700, 127 N. W. 748, 17 Det. Leg. and to all other legal and consti- N. 673. tutional interests and purposes See ch. 15 post. whatever. Provided, however, that 92. McKean v. Mt. Vernon, 51 any part thereof which is now Iowa 306; W^ay v. Center Point, the public property of the town 51 Iowa 708. 662 Municipal Coeporations. § 294 police, fire and light protection for ten years, was declared invalid for the reason that all parts of munici- pality are entitled to the same advantages.®* § 294. Condition of public property and debts after change — apportionment. ■*.... The power to divide municipalities is strictly a legisla- tive power, and the power to prescribe the rule by which a division of the property of the old municipality shall be made is incident to the power to make such division and it is in its nature legislative.®* The legislature has power to change the boundaries of a municipality without apportioning its indebtedness.®^ However, it is usual to make provision respecting the apportionment of property and debts in change of boun- daries. The mere change does not extinguish debts nor affect the title to property owned by the municipality at the date of the change.®® As a rule, existing debts of the corporation contracted before the limits were extended, 93. Jones v. Memphis, 101 Tenn. Hunter v. Tracy, 104 Minn. 378, 188, 47 S. W. 138. 385, 116 N. W. 922; Christiansen 94. Washhurn Water Wks. Co. v. Tracy, 104 Minn. 533, 116 N. W. y. Washburn, 129 Wis. 73, 81, 108 925; Laramie County v. Albany N. W. 194. County, 92 U. S. 307, 23 L. Ed. Adjustment of pre-existihg 552. rights and liabilities, in adding 96. Illinois. People v. School or excluding territory under par- Trustees, 86 111. 613. tlcular laws. Maumee School Tp. Kansas. Walnut Tp. v. Jordan, V. School Town of Shirley, 159 38 Kan. 562. Ind. 423, 65 N. E. 285. Judgment Minnesota. State v. Demann, 83 in 72 N. Y. S. 806, reversed In Minn. 331, 86 N. W. 352; Hum- Schwan v. New York, 173 N. Y. boldt v. Barnsville, 83 Minn. 219, 32, 65 N. E. 774; Tyler v. Lan- 86 N. W. 87. slngburgh, 76 N. Y. S. 139, affirmed Mississippi. Ross v. Wimberly, In 78 N. Y. S. 433, 76 App. Div. 60 Miss. 345, overruling Port Glb- 165; Board of Com'rs of Greer son v. Moore, 13 Smed. & M. 157. County V. Clarke & Courts, 12 New Hampshire. Gilford v. Okla. 197, 70 Pac. 206. Munsey, 68 N. H. 609. 95. Chalstran v. Board of Ed- Canada. Gillespie v. Westboume, ucation, 244 111. 470, 91 N. E. 712; 10 Manitoba 656. §294 Debts After Annexation. 663 unless otherwise provided by law, are chargeable upon the added territory as well as that comprehended by the boundaries before they were altered or extended."'' Unaffected by constitutional provisions, it is wholly, within the power of the legislature on the dissolution of a municipal corporation and the transfer of its ter- 97. Georgia. White v. Atlanta, 134 Ga. 532, 68 S. E. 103; Cash v. DouglasvlUe, 94 Ga. 557, 20 S. E. 438. Indiana. Stllz t. Indianapolis, 55 Ind. 515. Kentucky. Pence v. Frankfort, 101 Ky. 543. Michigan. Smith v. Saginaw, 81 Mich. 123, 45 N. W. 964. Minnesota. Winona v. School Dist 82, 40 Minn. 13, 41 N. W. 539, 3 L. R. A. 46, 12 Am. St. Rep. 687. North Carolina. Watson v. Pam- lico Co., 82 N. C. 17. Ohio. Powers v. Wood County, 8 Ohio St. 286; Blanchard t. Bis- sell, 11 Ohio St. 96. Tennessee. Williams v. Nash- ville, 89 Tenn. 487, 15 S. W. 364. Texas. Madry v. Cox, 73 Tex. 538, 11 S. W. 541. Virginia. Wade v. Richmond, 18 Gratt. (Va.) 583. United States. Laramie County V. Albany County, 92 U. S. 307, 23 L. Ed. 552. Property and debts on change of boundaries. Under the amend- ment to the Colorado Constitution consolidating several municipali- ties into one city called the "City or County of Denver," and provid- ing that such city should succeed to' the property rights of the mu- nicipalities as included, such city succeeded to the right to collect taxes created by a levy Imposed by a constituent municipality and to the taxes collected thereunder. Boston & Colc^. Smelting Co. v. El- der, 20 Colo. App. 96, 77 Pac. 258. The liability of owners of ter- ritory newly included within a municipal corporation to pay taxes for the purpose of paying pre-existing indebtedness of the corporation is usually supported by the equitable consideration that the population and taxable value of the property has been increased by proximity to the municipality; and by reason that the persons so brought in at once acquire an in- terest in all the public property belonging to the municipality, whether paid for out of previous taxes with previous bonds which have been satisfied, or with the proceeds of bonds still due. Toney V. Macon, 119 Ga. 83, 46 S. E. 80. W!here a school district issues bonds for the purchase of a site and school building and is later included In an annexation to a city, the latter is liable for the payment of such bonds. Board of Education of Topeka v. State, 64 Kan. 6, 67 Pac. 559. A contract made by a village shortly before being annexed to New York, for street sprinkling to be performed several months after the annexation, held illegal. Schwan r. New York, 173 N. Y. 32. 664 MXJNICIPAL COKPOKATIOXS. § 294 ritory to others to apportion its indebtedness betAveen such others, and determine Avhat proportion shall be borne by each. But in the absence of such an apportion- ment the liability of each will exist according to the value of the taxable property which falls within the boundaries of each.^*, The legislature transferred to a toAvu all that part of a road district lying within the town, but no provision was made for apportioning the indebtedness of the road district. The county, and not the town, was held liable on road warrants issued by it prior to the transfer.®^ Where a village is annexed to a city by, an act wliich provided that the city should be liable for all indebted- ness of the -O^illage, such liability of the city contemplated both liabilities ex contractu and ex delicto, and where there was an action in tort pending against the village at the time it was annexed, the city was properly substi- tuted as defendant.^ Where the statutes of a state provide that if an in- corporated town be annexed to another, the latter shall be bound for all the debts of the other, such provision has no application to a town annexing unincorporated territory.* In the detachment of territoiy the le,gislature may adjust the burden of existing municipal debts, and de- cree that the excluded territory shall continue to bear its former proportion of the burden, and the legislature may, by subsequent act, provide for relieving the ex- cluded territory, or for such future adjustments as the equities of the situation may seem to require; provided that, the constitutional rights of creditors of the corpora- tion are not invaded.* 98. Pepin Tp. v. Sage, 129 Fed. 2. Carpenter v. Central Covm«;- 657. ton, -26 Ky. L. Rep. 430, 81 S. W. 99. Custer County Bank v. Cus- 919. ter Co., 18 S. D. 274, 100 N. W. 3. Johnson v. San Diego, 109 424. Cal. 468, 42 Pac. 249, 30 L. R. A. 1. Tyler v. Lansingburgh, 76 N. 178. Y. App. Div. 165, 78 N. Y. 433. §295 Change OF BouNDAHiEs: Effect. 665 . ^ , If it appears that all the moneys evidenced by the bonded indebtedness of a municipal corporation were expended for improvements within its present territorial limits, and none of it went to improve the detached ter- ritory, it is jnst that the corporation as it exists should be asked to pay for what has been- expended for its ex- clusive benefit.* In the setting otf of a borough from a township in Pennsylvania, a court of equity has jurisdiction to ascer- tain, adjust and apportion the liabilities and assets be- longing to the township at the time of the incorporation of the borough. And the fact that the township has paid all the debts after the incorporation, will not defeat the right of the borough to an apportionment of the assets.^ A statute extending the boundaries of a municipality, and exempting the annexed territory from liability for the corporation's debts at the time of annexation, does not create a contract whose obligation cannot be impaired by subsequent legislation, but merely grants privileges which may be revoked at any time by the legislature.'* § 295. Taxation and exemptions on change of limits. The legislature has the power to authorize municipal corporations to impose taxes for municipal purposes on all lands within their boundaries, although on account of the rural character of some land it cannot receive any appreciable benefit from being within the corporate limits.'' All the powers which a municipal corporation is given by its charter, including the power of taxation, extends throughout its corporate limits.* 4 Johnson v. San Diego, 109 8. San Diego v. Graniss, 77 Cal'. 468, 480, 42 Pac. 249, 30 L. R. Cal. 511, 19 Pac. 875. ^ jijg The inhabitants of the annexed 5. Munhall v. Mifflin Tp., 210 territory are subject to all bur- Pa. St. 527, 60 Atl. 155. dens in the form of taxation. 6 Galloway v. Memphis, 116 Pence v. Frankfort, 101 Ky. 534, Tenn. 736, 94 S. W. 75. 41 S. W. 1011, 19 Ky. Law Rep. 7. Appeal of Hewitt, 88 Pa. St. 721. 55. 666 Municipal Gokpoeations. § 295 In Kentucky it was held that lands detached from a municipal corporation are not subject to be taxed for the payment of bonds issued while such lands were still a part of the municipality.® Where territory was detached from a municipal cor- poration after the ending of the tax year, but before the taxes have been collected, it was held in Alabama to be still liable for such taxes if the taxes had accrued be- fore the detachment.^" It has been ruled in Georgia that the inhabitants and their property within the newly acquired territory are subject to taxation for all legitimate municipal purposes, without respect to the time when some of the liabilities arose, unless otherwise provided by statute.^^ The legislature may, and sometimes does provide that territory, not laid out into lots or platted, annexed to a municipal corporation, shall be taxed at a lower rate than territory that is laid out to be used for municipal pur- poses.^^ Wliere a contract for municipal improvements was made prior, but the greater part of the work done after the annexation of new territory to the corporation, the Supreme Court of the United States held that such ter- ritory was not liable for taxation for payment for such 9. MUler v. PIneviUe, 28 Ky. L. Pennsylvania. SerrlU v. Phila- Rep. 379, 89 S. W. 261. delphia, 38 Pa. St. 355. 10. New Decatur v. Nelson, 102 Tennessee. Carrlger v. Morris- Ala. 556, 15 So. 275. town, 69 Tenn. (1 Lea) 116. 11. White V. Atlanta, 134 Ga. West Virginia. Powell v. Par- 532, 68 S. E. 103. kersburg, 28 W. Va. 698. 12. Connecticut. Gillette v. United States. United States v. Hartford, 31 Conn. 351. Memphis, 97 U. S. 284, 292. Georgia. But see contra Smith Agricultural lands lying within V. Americus, 89 Ga. 810. a municipal corporation are not Maryland. Daly v. Morgan, 69 exempt from municipal taxation Md. 460, 23 Am. and Eng. Corp. because they derive no benefit Cases 454. from the municipal government. Missouri. Benoist v. St. Louis, Latonla v. Hopkins, 104 Ky. 419, 19 Mo. 179. 47 S. W. 248. §295 Taxation After Annexation. 667 work, wliere a statute exempted it from liability for any "debt" contracted prior to the annexation.^^ Laws provide that lands brought into a city by extend- ing its limits are not subject to a tax levy made prior to their absorption.^* They also provide that when ter- ritory is detached from a municipal corporation the prop- erty disconnected shall not be exempted from taxation in order to pay debts while the territory was within the corporate limits." A law extending the corporate limits which contains exemptions from taxation of certain agricultural lands until divided or laid off into lots or blocks or discriminat- ing as to rate of taxation of such property, in violation of the Constitution, is void.^* And if the provision as to exemption is not inseparably connected in substance with that part of the act authorizing the extension, the ex- tension of limits will be sustained, for the rule is well settled that part of an act or a section may be uncon- stitutional without necessarily invalidating the rest of the act or section.^'' However, if the extension is de- pendent upon the condition of exemption the whole act is void.^* If the Constitution does not forbid, the legislature may provide a different rate of taxation in the old and new limits.^^ 13. United States t. Memphis, 58 Mo. 175; St. Louis & San Fran- 97 U. S. 284, 24 L. Ed. 937. Cisco R. R. v. Evans Brick Co., 85 14. Westport v. McGee, 128 Mo. Mo. 307 ; State ex rel. v. Pond, 93 152, 30 S. W. 523. Mo. 635; State ex rel. v. Field, 119 15. Kurd's Stat. (111. 1897), p. Mo. 593, 24 S. W. 752. 289; Young v. Carey, 184 111. 613, 18. Copeland v. St. Joseph, 126 56 N. E. 960, 80 111. App. 601. Mo. 417, 29 S. W. 281; Kansas City 16. Copeland v. St. Joseph, 126 v. Cook, 69 Mq. 127; Slauson v. Ra- Mo. 417, 29 S. W. 281; State ex cine, 13 Wis. 398. rel. V. O'Brien, 89 Mo. 631, 634; 19. United States v. Memphis, State ex rel. v. Wardell, 153 Mo. 97 U. S. 284; Benoist v. St. Louis, 319, 54 S. W. 574; overruling in 19 Mo. 179; State ex rel. v. part, Westport ex rel. v. McGee, O'Brien, 89 Mo. 631; Serrlll v. 128 Mo. 152, 30 S. W. 523. Philadelphia, 38 Pa. St. 355; Daly 17. County Court t. Grlswold, v. Morgan, 69 Md. 460. 668 MxTNICiPAL COBPOEATIOTTS. §296 In West Virginia a town may extend its corporate limits so as to include a railroad bridge across the Ohio River, and impose municipal taxes upon such bridges. Such taxation is not idtra vires.^" Where a town in West Virginia extends its corporate liniits so as to include agricultural or farming lands, and imposes municipal taxes upon*them, the courts cannot affect the action of the town or prevent such taxation, though the lands annexed derive no peculiar benefit from the incorporation.^^ § 296. Municipal subdivisions and wards. For convenience in government, usuallj^ municipal cor- porations are divided into wards; and in the larger cities into precincts, sanitary, police, street, sewer, park and other districts. ^^ The method of determining the 20. Point Pleasant Bridge Co. V. Point Pleasant, 32 W. Va. 328, i, S. E. 231. 21. Davis Y. Point Pleasant, 32 W. Va. 289, 9 S. B. 241. Contra, Sharp v. Dunavan, 17 B. Mon. (Ky.) 223; Evans v. Coun- cil Bluffs, 65 Iowa 238, 21 N. W. 504; Durant v. Kauffman, 34 Iowa 194. 22. Dividing into wards, pre- cincts and districts. Plats, di- visions and subdivisions by prop- erty owners. Nichols and Sherard Co. V. Cunningham, 16 S. D. 475, 94 N. W. 389. Some laws permit review by court of division of wards. Re Freeland, 22 Pa. Co. Ct. Rep. 403, 9 Kulp 387, 7 Del. Co. Ct. 428. Watcli district. Costello v. North Easton, 205 Mass. 54, 91 N. E. 219. Village precinct. Osgood v. Clark, 26 N. H. 307. Wards, subdivisions, etc. A constitutional provision requiring the enumeration of inhabitants to show the number residing in each ward, does not require the city to be divided into wards. Opinion of the Justices, 157 Mass. 595, 35 N. E. 111. . Directory provisions as to pro- ceeding in dividing. In re Fif- teenth Ward, 32 Leg. Int. (Pa.) 346, 11 Phila. 406. The details are generally worked out by commissioners duly ap- pointed. Brown v. Fowzer, 114 Pa. St. 446, 6 Atl. 706. In re Division of Gettysburg, 90 Pa. St. 355; In re Strasburg Bor- ough, 2 Lane. Law Rev. "(Pa.) 175. In re Jermyn Borough, 3 Pa. Com- mon Pleas 39. In the absence of any constitu- tional or legislative expression in- dicating that equality of appoint- ment or representation in the di- §296 Wards and Subdivisions. 669 number and the manner of fixing such subdivisions may be prescribed by statute or charter. Frequently such power is conferred upon the corporate authorities.^^ vision of cities into wards, and the election of councUmen there- from, the conclusion is that it was intended that the people of these minor municipalities shbuld be left free to exercise a discretion in that regard, and the courts are not warranted in interfering with such discretion. Moore v. George- town, 32 Ky. L. 323, 105 S. W. 905. Where a village becomes organ- ized as a city pursuant to a statute which requires the city authorities to divide its territory into wards, and enacting that each ward, when so created, shall constitute a pre- cinct, the pre-existing precincts will, for general revenue purposes, remain unaffected until that duty shall be performed. Whelen v. Cassidy, 64 Neb. 503, 90 N. W. 229. An act reducing the number of aldermen and providing for elect- ing one-half each year, held valid. Attorney General v. Cogshall, 107 Mich. 181, 65 N. W. 2. It is held in New Jersey that citizens whose domiciles have been changed by a resolution of the council altering the ward limits of the city may bring certiorari to test the validity of the action of the council. State (Parr) v. Bay- onne, 54 N, J. L. 125, 22 Atl. 1006. When court will take judicial notice of the number of wards into which a city is divided, see Moberry v. Jeftersonville, 38 Ind. 198, 203. Origin of wards and aidermen. In England, "In the larger towns tjie division into wards, with a • separate police system, can be traced at an early time, appearing as a unit of military organization answerable for the defense of a gate of a town. The police sys- tem of London is decribed In de- tail in a record of 930-940. Here the free people were grouped in associations of ten, each under the superintendence of a headman. The bishops and reeves who be- longed to the 'Court of London,' appear as the directors of the sys- tem, and in them we may see the aldermen of the wards of a later time. The use of the word bertha for ward at Canterbury, and the fact that the London wardmoot at a later time was used for the frank pledge system as well as for the organization of the muster, point to the connection between the military and the police sys- tems in the towns." 4 Bncyc. Britannica (11th Ed.), tit. "Bor- ough," p. 269. 23. Wood V. Atlantic City, 56 N. J. L. 232, 28 Atl. 427; People V. Young, 38 111. 491; People v. Danville, 147 lU. 127; Tattersal v. Nevels, 77 Neb. 843, 110 N. W. 708. Conferring power to divide and redivide. State v. Darrow, 65 Minn. 419; State ex rel. v. Stew- art, 52 Neb. 243; Municipal Code of St. Louis (McQuillin), p. 200. 670 Municipal Cobpoeatiosts. § 296 Sometimes it is to be determined by vote of tbe peo- ple.^* Sometimes courts are authorized to make the divisions.^' The districting of a city into wards is a legislative act, and cannot be delegated.^^ Thus a statute authoriz- ing the governor, in his disQretion, on the application of one hundred voters, to appoijit a commission to district or redistrict wards in cities, is unconstitutional as an unlawful delegation of legislative power.^^ As the municipal corporation is usually constituted the legislature alone has power to confer authority on a municipal legislative body to divide the corporation into wards, and without such authority such body cannot act.^* Statutes relative to the subject must be foUowed.^^ A legislative act authorizing the common council of a municipal corporation to redistrict the municipality into an appropriate number of wards, whenever, in their opinion, there is suitable occasion for so doing, means, not once for all, but from time to time to divide the mu- nicipality into the number of wards to which it is en- titled."" A statute empowering cities "already divided into wards ' ' to subdivide the wards when they reached a cer- tain population, is not confined to cities which had been divided into wards at the time of its passage."^ The repeal of an act conferring power upon municipal authorities to divide the municipality into wards, does not have the effect of abolishing existing legally estab- lished wards.^^ 24. Swindell v. State, 143 Ind. 28. People ex rel. t. Young, 38 153, 42 N. E. 528, 35 L. R. A. 50. 111. 490. 25. In re Eighth Ward of Nor- 29. In re Gettysburg, 90 Pa. St. ristown, 3 Pa. County Ct. 475; In 355. re Tyrone Borough, 13 Pa. County 30. People ex rel. v. Danville, Ct. 651; In re Avalon Borough, 31 147 111. 127, 35 N. B. 154. Pa. Super. Ct. 167. 31. Wood v. Atlantic City, 56 26. State v. Elizabeth, 28 N. J. N. J. L. 232, 28 Atl. 427. L. 103, 49 Atl. 1106. 32. State ex rel. v. Stewart, 52 27. State v. Elizabeth, 28 N. J. Neb. 243, 71 N W. 998. L. 103, 49 Atl. 1106. § 297 Division Iiirio Wards. 671 All constitutional restrictions as to the power of the legislature in this respect must be observed.^^ Thus Avhere the constitution forbids special or local legislation regulating the internal affairs of cities, alteration of ward lines cannot be made by special act.^* A statute di^dding a city into five wards is not in con- flict with a constitutional provision which requires that representation shall be apportioned according to popula- tion. It will be presumed that the lines have been fixed in conformity to such requirement in the absence of a showing to the contrary.^' § 297. Same subject. Here, as elsewhere, charter or statutory provisions re- lating to this subject which are mandatory must be sub- stantially foUowed.^^ Where the legislature divides a city into thirteen wards, and by subsequent act confers upon the city council power to ascertain and define such wards, a division of the city by the council into four wards is void. The power to ascertain and define does not include the power to regu- late anew.** 33. State v. Bayonne, 54 N. J. 36. State ex rel. v. Ruhe, 24 L. 125, 22 Atl. 1006; Morton v. Nev. 251, 52 Pac. 274. Carlin, 51 Neb. 202, 70 N. W. 966. 37. In re Gettysburg, 90 Pa. St. 34. State ex rel. Dempsey v. 355; In re Fifteenth ward, 11 Phil. Newark, 53 N. J. L. 4, 33 Am. and (Pa.) 406. Eng. Corp. Cas. 661, 10 L. R. A. Vote less than that required by ng/j charter ordinance void. State ex rel. V. Gray, 23 Neb. 365. An act relating to change of ^^ ^^ sufficiency of petition for ward lines which applies to all division of boroughs into wards in cities of a class is general and not Pennsylvania, see In re Freeland special. McLaughlin v. Newark, gorough, 22 Pa. Co. Ct. 403, 7 Del. 57 N. J. L. 298, 30 Atl. 543, affirmed (.^ 433 m Griffin v. Wanser, 57 N. J. L. gg Schroder v. Charleston, 3 536, 31 Atl. 222. Brevard (S. C.) 533; 2 Tread- See § 200 et seq., ante. ways Const. (S. C.) 726. 672 Municipaij Coepoeations. § 297 Where the law definitely fixes the number of wards it is not competent to increase or diminish such num- l>er.^® Although the charter or statute applicable may be silent as to the manner such powers are to be exercised by the legislative body, it is held that it must be done by ordinance as an ordinary act of legislation and not by resolution.*" Where the power of a municipal corpora- tion to create and change wards is required to be exercised by ordinances exclusively, an ordinance divid- ing a municipality into wards cannot be repealed or amended by resolution.*^ Where a statute requiring that the changing of ward boundaries shall be done by ordinance and that notice of such action shall be given by at least three publications for three succeeding weeks, such publication is not a pre- requisite to the adoption or operation of the ordinance.*^ The laws generally contain restrictions in the estab- lishment of ward lines, and such restrictions must be observed. Where the law gives each ward an equal num- ber of aldermen in the council and requires representa- tion to be apportioned as near as may be to the popular vote, a division of the city into three wards, making two wards contain about four hundred voters, and the re- 39. Schroder v. Charleston, 3 When may be changed by reso- Brev. (S. C.) 533; People ex lution, see Strohm v. Iowa City, rel. V. Oakland, 123 Cal. 598, 56 47 Iowa 42, 45. Pac. 445; Morton v. Carlin, 1 Neb. Where the law requires three- 202, 70 N. W. 966; State v. Holden, fourths of all of the members of 19 Neb. 249, 27 N. W. 120. the legislative body to pass an or- The City of Cincinnati must be dlnance making changes in ward divided into twenty-four wards, no lines it means three-fourths of the more and no less. Zumstein v. entire body. Schermerhorn v. Jer-' Mullen, 67 Ohio St. 382, 66 N. B. sey City, 53 N. J. L.. 112. See 140. chapter 13. 40. Cascaden v. Watefrloo, 106 41. Cascaden v. Waterloo, 106 Iowa 673; State v. Darrow, 65 Iowa 673, 77 N. W. 333. Minn. 419, 67 N. W. 1012; McCuUy 42. Landes v. Walls, 160 Ind. V. Elizabeth, 66 N. J. L. 555, 49 216, 66 N. E. 679. Atl. 686. §296 Division into Wards oe Districts. 673 maining ward, twenty-eight hundred voters, is inequita- ble and therefore void.*^ A division of municipal corporations into wards is gen- erally based upon population; that is, with regard to equality of population.** Thus where the law prescribes that "wards shall be formed of contiguous territory and in dividing the same the state commissioners shall have regard to equality of population," a division of wards as near "an average total vote' as possible," does not comply with the law.*® Under a statute authorizing a municipal corporation to divide the corporation into "sewerage districts," a mu- nicipality may provide for only one sewerage district for its entire territory.*^ 43. People v. Canaday, 73 N. C. 198, 21 Am. Rep. 465. The charter of the City of St. Louis requires that the ward lim- its "shall be made as near as prac- ticable so as to equalize the num- ber of registered voters in each ■ward." Municipal Code of St. Louis (McQulllin), p. 200; Char- ter of St. Louis, art 1, § 4. 44. State v. Cincinnati, 3 Ohio N. P. 127; Wood v. Atlantic City, 56 N. J. L. 232, 28 Atl. 427. 45. Here the rule was applied that where officers are empowered to do certain acts in a prescribed mode such mode must be strictly followed. Griffin v. Wanser, 57 N. J. L. 535, 31 Atl. 222. 46. Grimmell v. Des Moines, 67 Iowa 144, 10 N. W. 330. 1 McQ.— 45 674 Municipal Cobpoeations. CHAPTER 8. DISSOLUTION Mm REOEGANIZATION OF MUNICIPAL COBFO- RATIONS. 1. Grounds of dissolution and how AccoMPLiSHEa 2. EFrECT OF DISSOLUTION AND EEOBOANIZATION. 1. GbOUNDS OF DISSOLUTION AND HOW ACCOMPLISHED. Sec. What changes will not consti- tute dissolution. 299. Annexation or consolidation . destroys. 300. Repeal of charter may de- stroy. 301. Inhabitants may not dissolve — nonuser. 302. Failure to elect officers will not dissolve. 303. Failure to elect officers dis- solves when statute so pro- vides. Sec. 304. 305. 306. 307. 308. May be dissolved only by state — method. Dissolution under the Eng- lish law. Dissolution under the Roman law. Statutes providing for disso- . lution. Courts have no inherent pow- er to declare forfeiture of charter. 2. Effect of dissoluti_n and eeohqanization. Sec. 309. Effect of judgment of ouster on quo warranto. 310. Rights of creditors of extinct corporation protected — com- mon law rule rejected. 311. Dissolution of illegal corpo- ration — ie jure successor liable. 312. Extinguishing by dividing — legislative apportionment of property and debts. Sec. 313. Same — illustrative cases. 314. Absorption by annexation or consolidation. 315. Dissolution and reorganiza- tion — new is successor of old, when. 316. Same — suspension of govern- mental functions — revival. 317. Dissolution without substitu- tion. 4§ 298, 299 Dissolution. 675 1. GKOUNDS FOB DISSOLUTION AND HOW ACCOMPLISHED. § 298. What changes will not constitute dissolution. The municipal corporation is not dissolved, nor is its identity affected by an enlargement or diminution of its corporate limits, an increase or decroase in the num- ber of its corporators or inhabitants, a change of its name, transition from a hamlet, village or town to a city, or vice versa, or passing from one class or grade to another class or grade, or an amendment or repeal of its charter and the substitution of a new charter, materi- ally altering its form of government.^ § 299. Annexation or consolidation destroys. Where the whole territory of a municipal corporation is annexed to another or others, on division, the annexed 1. California. Frank v. San Francisco, 21 Cal. 668. Kansas. Walnut Tp. v. Jordan, 38 Kan. 562, 20 Am. and Eng. Corp. Cas. 1. Kentucky. MaysvIUe v. Scultz, 3 Dana (Ky.) 10. Louisiana. State v. Natal, 39 La. Ann. 439. Nebraska. State v. White, 20 Neb. 37. Pennsvlvania. Trusteee of Acad- emy V. Erie, 31 Pa. St. 615, 517. United States. Broughton v. Pen- sacola, 93 U. S. 266; Milner v. Pen- sacola, 2 Woods 0. C. 632; Girard V Philadelphia, 7 Wall. (74 U. S.) 1, 13. Changes not working dissolu- tion. "All of these changes combined will not destroy the identity, continuity or siiocesc'cn of the corporation If the people and the territory reincorporated constitute an integral part of the corporation abolished. The rea- son is to be found in the peculiar nature of these corporations." O'Connor v. Memphis, 6 Lea (Tenn.) 730, 736. Adoption of township organiza- tion does not affect terms of towa ship officers. State ex rel. v. Hed lund, 16 Neb. 566. Failure of the legislature to as sign a town organized by a judg- ment of the court to any class does not dissolve the corporation Com." V. Rose, 20 Ky. Law, Rep. 1220, 49 S. W. 29. Where a town has once been in corporated as of a certain class, it remains a town, even though the number of its inhabitants falls below the number required for the incorporation of a town, and it has been without corporate au- thorities for seventeen years. It can only be dissolved by the legis- lature. Hill V. Anderson, 28 Ky. L. Rep. 1032, 90 S. W. 1071. 676 Municipal Cobpoeations. § 299 municipal corporation becomes absorbed and tbus is destroyed.^ Likewise, a county may be destroyed by being annexed to another organized county. "No interregnum would tben take place; the government of the county to which it was annexed would be extended over and embrace it simultaneously with its annexation and thus no evil or inconvenience would occur. ' ' ^ In Minnesota a village or borough may be embraced within a city, and on the establishment of such city the village or borough ceases as a corporation.* So in Pennsylvania, when, by reason of their growing popula- tion, a number of distinct villages have coalesced they may be incorporated as a borough, although the different parts which have thus grown into one community may continue to be known locally by their original designa- tions.' So where two or more municipal corporations are consolidated under one government, which is expressly permitted in many states by statute, the old corpora- tions become in like manner extinct.® 2. Schriber v. Langlade, 66 Wis. contiguous municipal corporations 616, 29 N. W. 547. allowed in Washington. Code of Absorption of one town by an- Washington, 1896, § 1120. other. Where, in the extension ^^ ^^^^ state it is held that an of its territorial limits, one city act providing that the question absorbs another, in Missouri, the of consolidation be submitted to only charter rights and powers of the voters at a special, instead of the latter which pass to the for- at a general, election is valid and mer are those mentioned in § 6399, ^°^ in contravention of art. XI, § R. S. Mo. 1899 (Ann. Stat. 1906 p. 10 of the Constitution. State ex 3197.) Barber Asphalt Pav. Co. rel. v. New Whatcom, 3 Wash. 7. v. Field, 188 Mo. 182, 111 S. W. I* is also held that the act ap- 907. plies to municipal corporations 3. People V. Wren, 5 111. 269, "^^'^^'^ ^^ ^Pecial charter, as 279, approved In Walnut Tp. v. "^^^ ^ ^° t^°se organized under Jordan, 38 Kan. 562, 565, 16 Pac. general incorporation laws. lb. Consolidation — general law. Disincorporation of a municipal corporation created under general laws and the annexation of its 5. In re Alliance Borough, 19 territory to another cannot be Pa. Super. Ct. 178. don^ by local or special laws. In 6. Consolidation of two or more lo Denver, 18 Colo. 288, 32 Pao. 812. 4. Laws of Minn. 1899, pp. 50 to 52. §299 Consolidation or City and County. 677 Under the Constitution of California a city and county government may be consolidated as one municipal cor- poration/ And the Constitution of Missouri provides that in all counties having a city therein containing over one hundred thousand inhabitants, the city and county government thereof may be consolidated in such manner as may be provided by law.* 615; In re Consolidation of School Districts, 23 Colo. 499, 48 Pac. 647; Denver v. Coulehan, 20 Colo. 471, 39 Pac. 425; State v. Kansas City, 50 Kan. 508; 31 Pac. 1100; State v. Des Moines, 96 Iowa 521, 65 N. W. 818, 59 Am. St. Rep. 381, 31 L. R. A. 186; State V. Cincinnati, 52 Ohio St. 419, 40 N. B. 508. "When two existing corpora- tions are to he consolidated, the preliminary thing to be accom- plished is the disincorporation of the old, and then follows the in- , corporation of a new municipality, in which there must be new terri- tory, a new name (at least as to a part of the territory) and new people. This operation must, un- der the Constitution, undoubtedly be conducted under general laws." State V. New Whatcom, 3 Wash. 7, 10, 27 Pac. 1020. See State ex rel. V. Cincinnati, 20 Ohio St. 18. Cities adjacent may consolidate In Kansas. General Statutes, Kan- sas, § 604. In California two or more con- tiguous municipal corporations may consolidate into one corpora- tion upon a majority vote of the electors concerned after due no- tice, etc. General Law? of- Cali- fornia (Deering), 1897, pp. 609, 611. When municipal corporations are consolidated in Ohio the stat- ute provides that the consolidated corporation shall be governed as one. 1 Bates' Annotated Ohio Statute, § 1606 et seq. 7. "City and county government, may be merged and consolidated into one municipal government, with one set of oflScers, and may be Incorporated under general laws providing for the Incorpora- tion and organization of corpora- tions for municipal purposes. The provisions of this Constitution applicable to cities, and also those applicable to counties, so far aa not inconsistent or prohibited to cities, shall be applicable to such consolidated government." Const. Cal. 1880, art. XI, § 7, as amended Nov. 6, 1894. The City and Colinty of San Francisco have been consolidated. Kahn v. Sutro, 114 Cal. 316. Consolidation of city and coun- ty, when continuation of city, see. Wood V. Board of Election Com- missioners, 58 Cal. 561. 8. Const, of Mo. 1875, art. IX, § 15. 678 MuNICIPAIi COBPOKATIONS. § 300 It has been held in Michigan that attaching the greater part of the territory of a village to a city does not dis- solve the village corporation where there is nothing in the annexing a-ct to indicate an intention to repeal the village charter.* A sanitary district in California may be annexed to a city, in whole or in part, and such annexation will dis- solve such sanitary district which is a public corpora- tion but not organized under the general incorporation laws for the creation of cities and towns, hence the pro- ceeding to merge the territory is annexation and not consolidation.*" § 300. Repeal of charter may destroy. The repeal of the charter of a municipal corpora- tion by the legislature, without providing another, destroys or suspends for the time all municipal func- tions." Thus, the express repeal of the existing charter of a town or village by the legislature does not revive a legislative charter originally granted to the town or vil- lage. But the old corporation ceases to exist on the tak- ing effect of the repealing act.*" The doctrine that the repeal of a repealing statute revives the original act 9. People V. Highland Park. 88 258; Broadfoot v. FayettevlUe, 124 Mich. 653, 50 N. W. 660. N. C. 478, 32 S. EJ. 804; Lilly v. 10. People ex rel. v. Oakland, Taylor, 88 N. C. 489, following 123 Cal. 598, 56 Pac. 445; In re Meriwether v. Garrett. 102 U. S. Sanitary Board of Fitchburg Sani- 472, 26 L. Ed. 197. tary Dist., 158 Cal. 462, 111 Pac. Annexing the greater part of 372; In re Sanitary Board of territory of a village to a city by Upper Fruitvale Sanitary Dist.. legislative act does not necessarily 158 Cal. 461, 111 Pac. 372; E. D. repeal the village charter. Peo- & A. L. Stone Co. v. Reilly, 158 pie v. Highland Park. 88 Mich. Cal. 46,6, 111 Pac. 373. 653, 50 N. W. 660. 11. Amy V. Selma. 77 Ala. 103; 12. State ex rel. v. Reads, 76 Barkley v. Levee Com'rs, 93 TJ. S. Mina. 69, 78 N. W. 883. §300 Repeal, of Chaetee. 679 does not apply to special acts like a cha;rter of incorpora- tion.^* The repeal by a municipal charter of all former char- ters without a saving clause as to rights accruing under such former charters does not impair the right of the local corporation to sue for taxes levied under a former charter.** In the absence of express provision a legislative act repealing the laws under which municipal charters were obtained does not repeal the charters themselves.'* How- ever, it has been held that, under the Constitution of Kentucky (1891), which required the legislature to pro- vide by general laws for the government of towns and cities, the adoption by the legislature, in pursuance of this constitutional provision, of a plan for the reorgani- zation of cities is in lieu of all legislation that thereto- 13. Burk V. state, 5 Lea (Tenn.) 349; Smith v. Hoyt, 14 Wis. 252. Repeal of repealing act — re- vivor. Where an act or rule of the common law Is repealed and the repealing enactment is after- wards expressly or impliedly re- pealed hy another which manifests no Intention that the first shall continue repealed, the doctrine of the common law is that the repeal of the second act revives the form- er, and moreover revives it o& ini- tio, and not merely from the time of the passage of the reviving act. Ordinarily this rule is applied un- less changed by statute. By statute in some states it has been found expedient to provide that, in the absence of express declaration to the contrary, the re- peal of the repealing law shall not revive the original act. R. S. of Mo. 1909, § 8060. The Municipal Code of St. Louis (McQuillin), p. 709, § 1323, p. 710, § 1333. The repeal of a statute does not operate as a revival of the com- mon law. State v. Slaughter, 70 Mo. 484. When amendment of city char- ter will operate as a repeal of a general law within the city limits, see, State v. DeBar, 58 Mo. 395. When a state law Is repealed by a charter provision a repeal of the repealing provision by char ter will not revive the state law State v. Lewis, 5 Mo. App. 465. 14. Bennlson et al. v. Galves- ton, 34 Tex. Civ. App. 382, 78 S W. 1089. 15. State ex rel. Chandler v. Huff, 105 Mo. App. 354, 79 S. W, 1010. 680 Municipal. Cobpobations. 301 fore existed on the subject and repeals by implication the old special charters of cities of the first class." § 301. Inhabitants may not dissolve — non-user. A municipal corporation can only be dissolved in the manner prescribed by law.^^ ■* Hence, its inhabitants are as powerless to dissolve it, unless this be done as the law directs, as they are to create such a corporation in a mode not directed by law.^® Thus a municipal corpora- te. Parsons v. Breed, 126 Ky. App. 759, 104 S. W. 766. Repeal of old charter. "Tlie adoption of the General Corpora- tion Act by a city or village -which had pi;eviously been Incorporated by special charter, does not there- by necessarily forfeit its powers theretofore enjoyed under its charter; it is only such provisions of the new charter as are incon- sistent with the general law that are abrogated. Trustees of Schools, etc. V. Board of School Inspectors, 115 111. App. 479. "The repeal of §§ 1550 and 1552 Revised Statutes prevented the creation of additional hamlets, but did not destroy those already in existence." North Bend v. Cincin- nati Street Ry. Co., 15 Ohio Cir. Ct. Rep. 268. When the freeholder's charter of San Francisco was approved by the legisdature in 1899, it there- by became, by the express terms of the Constitution, (art. 11, par. 6, 8) the organic law of the city and county, superseding the exist- ing charter and all laws inconsis- tent therewith. Burke v. Board of Trustees, 4 Cal. App. 235, 87 Pac. 421. The general assembly may re- peal the charter of a municipal corporation so far as the repeal affects merely the governmental aspect of the corporation. Where the charter of a town is revoked by the legislature, the territory and the inhabitants thereof must necessarily be sub- ject to such government as the state, under constitutional limita- tions may impose. Board of Tp. Com'rs v. Buckly, 82 S. C. 352, 64 S. E. 163. 17. Largen v. State ex rel., 76 Tex. 323, 13 S. W. 161; Hamble- ton V. Dexter, 89 Mo. 188, 192; Norris v. Smithville, 1 Swan (Tenn.) 164. 18. State ex rel. v. Dunson, 71 Tex. 65, 70, 9 S. W. 103; Buford V. State, 72 Tex. 182, 10 S. W. 401. Neither Inhabitants nor officers can dissolve. In the absence of statute the officers cannot aban- don or disincorporate a municipal corporation; nor can the inhabi- tants. People ex rel. v. Bancroft, 2 Idaho 1078, 29 Pac. 112. In this case it is said: "Towns and villages are created by authority of the legislature, and the only §301 Dissolution: Non-Usbb as Gbound. 681 tion is not ipso facto dissolved or destroyed by a non^-user of its powers, in whole or in part, or failure for a term of years to exercise the functions of a mtinicipality," since a judicial sentence or legislative act is necessary to effect a dissolution.** In such case the municipal corporation would be suspended for the time, but not civilly dead, since its dormant functions could be revived without ac- tion on the part of the sovereignty, the sources from which, in theory of law, corporate life originally came.*^ The result would be the same should all of the inhabitants remove without the corporate limits. The remedy for failure .to exercise municipal powers or for illegal acts manner in which such municipal corporations can be dissolved is by act of the legislature. 1 Dill Mun. Corp. §§ 170, 173; Morris V. State, 65 Tex. 53. * * * If there could be any such thing as the surrender of a charter and authority or privileges of the town, it would, from necessity, have to he made to the legisla- ture, and its acceptance would have to be manifest by appropri- ate legislative action. Brennan V. Bradshaw, 53 Tex. 330. * * * In our law for the incorporation. of towns and villages, there is no method prescribed for the dissolu- tion of these incorporations; therefore they cannot be dissolved either by the trustees or the in- habitants." 19. Alabama. Butler v. Walk- er, 98 Ala. 358, 13 So. 261, ,39 Am. St. Rep. 61. California. Elliott v. Pardee, 149 Cal. 516, 86 Pac. 1087; Swamp i Land Dist. v. Silver, 98 Cal. 51, 32 Pac. 866. Michigan. Cain v. Brown, 111 Mich. 657, 70 N. W. 337. Texas. Largen v. State, 76 Tex. 323, 13 S. W. 161. England. Colchester v. Brooke, 7 Q. B. 383, 53 E3. C. L. 383. Misconduct of officers. The charter is not liable to forfeiture for misconduct of officers, not affecting the rights of the public. Com. V. Pittsburg, 14 Pa. St. 177, 181. Non-user works forfeiture, when. . Where a city has failed for more than seventeen years to exercise any of the governmental functions granted to it by the act of incorporation, the rights and powers- granted thgireby are for- feited by non-user. Cincinnati, etc. Ry. Co. v. Baughnan, 116 Ky. 479, 76 S. W. 350. 20. Ex parte Moore, 62 Ala. 471, 476; Harris v. Nesbit, 24 Ala. 398; Beale v. Pankey, 107 Va. 215, 57 S. E. 661. 21. Phillirs V. Wickham, 1 Paige (N. Y. Ch.) 597. 682 MuNICIPAIi COBPOEATIONS. § 302 or misconduct of tlie officers or agents of the corporation is not dissolution or forfeiture of the charter.^'' Under the act of West Virginia which provides that "any city, town, or village which shall fail for one year to keep its roads, streets, alleys, sidewalks and gutters in good order and repair, or which shall fail for one year to exercise its corporate powers and privileges, shall thereby forfeit its charter, and all the rights, pow- ers and privileges conferred thereby, " "* it has been held that failure of a city in the particulars enumerated does not ipso facto forfeit its charter. Such neglect cannot be ground to enjoin the collection of municipal taxes on the theory that the corporation has become extinct.^* The general rule is well established that the corporate existence of a municipal corporation cannot be ques- tioned, collaterally.^® § 302. Failure to elect officers will not dissolve. A municipal corporation is not dissolved by the mere failure to elect or appoint officers and agents to conduct its government, for its continuance as a legal entity does not depend on the existence of officers.^^ 22. state ex rel. v. Miller, 66 charter by non-user." Harris v. Mo. 328, 345, quoting and approv- Nesblt, 24 Ala. 398. Ing statement In 2 Dillon Mun. Failure to assign to class. Fail- Corp. (4tli Bd.), i 896. ure of legislature, at its next ses- 23. West Virginia C!ode, ch. 47, ,sion after a town has been estab- § 44. Hshed to assign such town to its 24. Hornbrook v. Elm Grove, proper class does not dissolve the 40 W. Va. 543, 21 S. E. 851. corporation under the statutes 25. §.§ 158, 159 ante. of Kentucky. Commonwealth v. Ward V. Gradin, 115 N. D. 649, Rose, 107 Ky. 566, 49 S. W. 29. 109 N. W. 57; Geneva v. Cole, 61 26. Illinois. People ex rel. v. 111. 397. Wren, 5 111. 269, 270; Mendota v. Forfeiture by Judicial proceed- Thompson, 20 111. 197, 201; Peo- ing. "An Incorporated town re- pie v. Niebruegge, 244 111. 82, 91 tains its corporate capacity until N. E. 115. its charter Is declared forfeited Kentucky. Hill v. Anderson, 28 in a direct judicial proceeding. Ky. Law Rep. 1032, 90 S. W. 1071. It cannot be held, in any collateral Texas. State ex rel. v. Dunson, proceeding, to hate forfeited its 71 Tex. 65, 9 S. W. 103; Buford § 302 Dissolution fbom Want of Officees. 683 As stated elsewhere, the officers do not constitute the corporation nor does even the council constitute a corpo- ration, for under our system the inhabitants of the desig- nated -locality are the corporators.'*'^ In this country municipal corporations do not consist of integral parts in the sense of integral parts as used in the English law. English courts have held or assumed that loss of integral parts would dissolve the corporation, or at least, suspend its existence, and that its charter might for a misuse of its franchises be declared for- feited by judicial sentence in quo warranto, or informa- tion in the nature of quo warranto, as in the famous case against the City of London ia the time of Charles 11.^* Judge Dillon doubts whether in England municipal corporations can be dissolved for this reason. How- ever, in no event can the doctrine apply in this country, for, as stated, our municipal corporations do not consist of integral parts.^" V. state, 72 Tex. 182, 10 S. W. 401, overruling Lea v. Hernandez, 10 Tex. 137; Cofleld v. Brltton, 60 Tex. Civ. App. 208, 109 S. W. 493; State v. Hoff (Tex. Civ. App.), 29 S. W. 672. United States. United States Bank v. Kendall, 179 Fed. 914. Attaching the greater part of the territory of a village to a city does not destroy the corporation or repeal the village charter, although the act legislates the ma- jority of the officers out of office. People V. Highland Park, 88 Mich. 653, 50 N. W. 660. "If the corporators have the power In themselves to supply the deficiencies in their body, their rights are not extinguished, but only dormant. Phillips v. Wlck- ham, 1 Paige (N. Y. Ch.) 597. 27. § 116 ante. 28. 1 Cooley's Bl. 485, n. 20. 30. Welch V. Ste. Genevieve, 1 . Dill. Clr. Ct. 130, 134, per Dillon, J., Fed. Cas. No. 17,372. Blackstone says tnat because, by the common law, corporations were dissolved. In case the mayor or head officer was not duly elect- ed on the day appointed in the charter or established by prescrip- tion, it was provided by Parlia- ment that for the future no cor- poration shall be dissolved on that account, and ample directions are given for the appointment of new officers, in case there be no elec- tion, or void one, made upon the prescriptive or charter day. 1 Bl. Com. 485. Where the charter of a town is amended, relating to the election of officers, which is unconstitu- tional the corporation is not there- by dissolved. Cole v. Black River Falls, 57 Wis, 110, 14 N. W, 906 684 MuNICIPAIi COBPORATIOITS. § 303 Agreeably to the reasons above given, the resignation of officers and agents of a corporation and omission to elect others does not operate to destroy the existence of a corporation.^! § 303. Failure to elect officers dissolves, when statute so provides. * The legislature may create municipal corporations conditionally, that is, by prescribing certain conditions precedent to corporate existence, a disregard of which will operate as a destruction of corporate entity as ef- fectually as if accomplished by act of contemporaneous legislation. A provision in a charter that "if there should be a failure to hold the annual elections for in- tendant and councilmen on the day mentioned in this act for that purpose, then all the powers, rights, privi- leges, immunities and franchises hereinbefore or here- inafter conferred on the said intendant and council, as a corporation, shall forever cease and determine and bo of no force and effect whatever, ' ' was held to be a suffi- cient legislative ' determination and declaration of dis- solution, in and of itself, working corporate destruction, ipso facto, on the happening of the condition upon which 31. Failure to have officers will Co., 20 Conn. 447, 458, where It not dissolve. "Officers and agents is said "Whether mere disuse of are necessary to the management any or all corporate powers, of the affairs of such an organi- works a determination of corpo- zation, but the corporation may rate being and corporate liability, have, and does have, an existence we need not say; though we be- per se, so as to maintain succes- lieve it would be difficult to main- sion and hold and preserve its tain the affirmative of the proposi- franchises, though its functions tion." may, for the time being, be sus- The fact that the corporation is pended for want of means of ac- without officers for two years tion." Muscatine Turnverein v. and does no corporate act for such Funck, 18 Iowa 469, 472, per time, does not dissolve. Russell Wright, J. V. McLellan, 14 Pick (Mass.) 6.3, EJvarts V. KilUngsworth Mfg. 70. §304 Dissolution by State. 685 it was intended to become operative, namely, failure to hold the annual election.^^ § 304. May be dissolved only by state — method. In this country municipal corporations may be dissolved only by the state, subject to constitutional restrictions, if any.^* And this is accomplished by the legislature either directly or indirectly through the judiciary ,^^ or by submission of the question of dissolu- tion to popular vote pursuant to legislative provision. Legislative power, in this as in other respects, relating to municipal corporations is usually regarded as practic- ally unlimited unless restrained by organic law.^^ 32. Butler v. Walker, 98 Ala. 358, 13 So. 261, 39 Am. St. Rep. 61. 33. Alabama. Bnsley v. Simp- Bon, 166 Ala. 366, 52 So. 61. California. Allen v. Bakersfield, 157 Cal. 720, 109 Pac. 486. Illvnois. People v. Nlebrueigge, 244 in. 82, 91 N. E. 115; Chals- tran v. Board of Education, 244 111. 470, 91 N. E. 712. Kentucky. Hill v. Anderson, 28 Ky. L. Rep. 1032, 90 S. W. 1071. Massachusetts. Atty. Gen. v. Boston, 123 Mass. 460; Atty. Gen. V. Salem, 103 Mass. 138. Michigan. Cain v. Brown, 111 Mich. 657, 661, 70 N. E. 337. Nebraska. State v. Several Par- cels of Land, 78 Neb. 703, 111 N. W. 601. New York. Watervliet v. Co- lonie, 50 N. Y. S. 487, 27 App. Div. 394; Blauvelt v. Nyack, 9 Hun (N. Y.) 153. Texas. Largen v. State ex rel., 76 Tex. 323, 327, 13 S. W. 161; Harness v. State, 76 Tex. 566, 13 S. W. 535. West Virginia, Board of Edu- cation V. Berry, 62 W. Va. 433, 59 S. E. 169. United States. Mobile v. Wat- son, 116 U. S. 289, 29 L. Ed. 620; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197. De facto corporations. The state Is entitled to dissolve a de facto municipal corporation for all lu- ture purposes as far as It covers territory over which it wrongfully exercises jurisdiction, but not to wipe it out from the beginning, and thereby destroy all rights which have arisen by reason of such de facto existence, and create liabilities from which persons are protected by reason of the same. State ex rel. v. Grow Wing County Com'rs, 66 Minn. 519, 35 L. R. A. 745, 69 N. W. 925. 34. Butler v. Walker, 98 Ala. 358, 13 So. 261, 39 Am. St. Rep. 61; Hambleton v. Dexter, 89 Mo. 188, 192. 35. People v. Hill, 7 Cal. 97, 103; State v. Hamilton, 40 Kan. 323, 19 Pac. 723; Duncombe v. Vrindle, 12 Iowa 1; State ex rel, V. Miller, 66 Mo. 328, 342. 686 MuNICIPAI, COEPOEATIONS. § 304 When municipal corporations cease to perform public duties they become extinct if such be the declared legis- lative will, although not guilty of any wilful wrong or neglect. Such corporations exist by grace only.'* "A municipal corporation which has been created by an unconstitutional statute may exercise upon the citizen through its officers the powers conferred upon it by the Statute as fully and completely as if it was created by a law valid in every particular," and the legality of its existence can be called in question only by the state.*^ Thus where a county organized under an unconstitu- tional statute has exercised governmental functions and franchises over its people for ten years, and the state has during that time accepted and received its share of taxes, and has, through its officers, recognized the con- ditions existing in such county, the application of a pri- vate person for leave to file an information in the nature of quo warranto against such county will be denied.''* In an action by the state to dissolve a municipal cor- poration, it is within the discretion of the court to refuse a judgment of ouster, if, in its opinion, the interests of the community do not require such judgment. Thus where a municipal corporation was organized under 36. Vicksburg v. Washington remain to continue the succession Steam Fire Co., 76 Miss. 449, 24 and supply the vacancies. State So. 877. V. Trustees of Vincennes Univer- Prlvate corporations. In this sjty, 5 Ind. 77; Trustee, etc. v. country a private corporation may Indiana, 14 How. (55 U. S.) 268, be dissolved in any one of the 273, 14 L. Ed. 267. three modes: 1. By death of its In Louisiana, the stoclfholders members. 2. Surrender of its of certain business corporations franchises. 3. A judgment of for- may dissolve the corporation, at felture for non-user or abuse, will, upon a vote of three-fourths Trustees of Mclntire Poor School of Its stockholders. Rev. Stat. § V. Lanesville C. & M. Co., 9 Ohio 687; Schleider v. Dielman, 44 La. 289. Ann. 462, 469. The statutes generally pre- 37. Lang r. Bayonne, 74 N. J. scribe the method of dissolution L. 455, 68 Atl. 90. and winding' up. 38. State ex rel. Walker v. Loss of members alone will not McLean County, 11 N. D. 356, 92 dissolve a corporation if sufficient N. W. 385. 304 Mode op Dissolution. 687 color of law at least more than sixteen years before the filing of proceedings to dissolve it, exercising the usual franchises, and the state during that time has, by legis- lative acts, unequivocally recognized it as a municipal corporation, a judgment of ouster, in an action by the state to dissolve it for certain alleged irregularities in its organization, may be refused, on the ground of laches, and moreover, it is within the discretion of the court to refuse such judgment, because, ia its opinion, the inter- ests of the inhabitants do not require it.** So where it appeared that a village had exercised, without question, the powers and functions of a municipal corporation for a period of twenty years, had levied and collected taxes, improved its streets, acquired public property and made provisions for lighting the place and for the establishment of a system of water works, for which public moneys had been expended and municipal bonds issued and sold, the court may decline to grant leave to file an information in the nature of quo war- ranto.*" In Illinois it is held that the attorney general or state's attorney may, at any time, file an information in the nature of quo warranto on behalf of the people, where the interests of the public are involved, against a drain- age district, to test the legality of the corporation; and lapse of time constitutes no bar to such proceeding.*^ In a Minnesota case, where the facts appeared that after its organization in form, and prior to the institution of proceedings, to dissolve a school district had borrow- ed money from the state, to be, and which actually was, used in the erection of a school building, had issued bonds therefor to the state and had voted a tax for current ex- penses, the doctrine of waiver operating by way of es- 39. state ex rel. v. Pell City, 41. People ex rel. Slusser t 157 Ala. 380, 47 So. 246. Gary, 196 111. 310, 63 N. B. i49. 40. The People ex rel. Misner V. Hanker, 197 111. 409, 64 N. B. <'63. 688 Municipal Cobpobations. § 305 toppel in pais was applied against the state ia a quo warranto proceeding brought by it against such school district.*^ §305. Dissolution imder the English law. Under the English law it seems that municipal corpo- rations may be abolished: , 1. By act of Parliament. "It was never doubted in England that the Parliament — ^that the three estates could abolish or alter at pleasure the city charters, and although we do not pretend that our legislature possesses the theoretical omnipotence of the British Parliament, its powers are certainly more analogous to the actual and acknowledged practical powers of that body than to the prerogatives exercised by the Crown."** The English courts finally decided that the king could not alter or abolish municipal charters. A large number of corpo- rations were dissolved by the Municipal Corporation Act, 1883." 2. By the loss of an integral part of the corporation, such as the mayor, aldermen, or a majority of them, or at least by the death or ouster of all the corporate officers, which deprives the corporation of all the means of supply- ing the loss.*° 3. By surrender of the franchise of being a body poli- tic, made by the corporation for the time being, which surrender must be accepted by the king.** 4. By forfeiture of its charter through negligence or abuse of its franchise; in which case, says Grlover, the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the in- corporation is void. A judgment of forfeiture may be 42. state ex rel. Douglas v. nold's Mun. Corp. (5th Ed.), Lon- School District, 85 Minn. 230, 88 don), p. 289 et seq. N. W. 751. 45. Rex v. Passmore, 3 Term 43. St. Louis V. Allen, 13 Mo. Rep. 199; 8 Laws of England 400, 415, per Napton, J. (Halsbury), p. 399, par. 873; See Arnold's Mun. Corp. (5th Glover, Mun. Corp. p. 409. Ed.), p. 4. 46. Willcock, Mun. Corp. p. 325; 44. 46 & 47 Vict. C. 18; Ar- Glover, Mun. Corp. p. 408.^ §§ 306, 307 , Dissolution. 689 rendered by proceedings in quo warranto or scire facias.*'' The charter of London and those of the colonies of Massachusetts, Ehode Island and Connecticut were thus abrogated. § 306. Dissolution under Roman law. Under the civil law of Eome if the objects of incorpo- ration were illegal, the corporation was liable to be dis- solved by the state which always possessed power to dissolve corporations, even against the will of the mem- bers, but, without state consent the members were powerless to bring about dissolution. Death of all its members did not result in dissolution of the corpora- tion.*^^ § 307. Statutes providing for dissolution. In this country the method of dissolution is usually prescribed by statute. Many laws provide for the dis- continuance and winding up of municipal corporations.** Some laws recite that when a designated number of voters of towns or villages desire the abolition of such corporation they may petition a named court which shall thereupon order an election, and the inhabitants, thereof determine the question. Laws of this character have been held not to apply to towns incorporated under special charters but only to those organized under gen- eral laws.** 47. Glover, Mun. Corp. p. 408; apply where there Is an illegal Willcock, Mun. Corp. pp. 325, 336; attempt to incorporate, the court 1 Bl. Com. 485; Whalin v. Ma- holding that in such case there comh, 76 111. 49; 8 Laws of Eng- never existed any indebtedness land (Halisbury), pp. 397 to 399. for which the inhabitants of the 47a. Taylor, Private Corp. (3d territory sought to be incorpo- Ed.), § 6. rated into a city were bound. Ew- 48. Jones v. Pensacola, 13 Fed. ing v. Dallas County, 83 Tex. 663, Cas. No. 7, 488. 19 S. W. 380. 49. Ex parte Cross (Tex. Crim. An attempted dissolution being App. 1902), 71 S. W. 289. void, dissolution cannot be in- Illegal attempt to Incorporate — ferred from acquiescence and debts. Legislative provisions for lapse of time. Largen v. State, 76 paying debts, etc., with power to Tex. 328, 13 S. W. 161. levy and collect taxes, do not 1 McQ.— 44 690 Municipal Coepobations. §307 In California municipal corporations of the sixth class — ^those containing less than three thousand inhabitants-r- may disincorporate on submission of the questions to the electors by the legislative body in compliance with a petition, signed by not less than one-fourth of the quali- fied electors, at a special election, on notice published in a newspaper for a period of thirty days prior to such election.^" In Florida certain incorporated cities and towns may be dissolved by statutory proceedings.**! So in Indiana, '* and in Michigan,^* named municipal corporations may disincorporate by observing statutory directions. 50. DIslncorporation In Cali- fornia. Law held valid and not In conflict with 'that provision of the State Constitution prohibiting the passage of local or special laws in cases where a general laW can be made applicable. It was fur- ther held: 1. That the petition of the electors need not specifl- cally pray for dlsincorporation, but that a prayer for submission of the question to the electors Is sufficient. 2. That a notice of the election by the clerk of the legisla- tive body, over his official signa- ture, showing that It was given by due authority, is sufficient, and that such published notice need not be signed by the members of the legislative body. 3. A weekly publication of the notice, begin- ning on June 27th and ending July 25th, of an election to be held July 27th is sufficient. Mint- zer V. Schilling, 117 Cal. 361, 49 Pac. 209. 51. Ex parte Wells, 21 Fla. 280. Dissolution in Florida. An act vesting discretion in the owners of one-half of the bonds of a city and twenty of its residents, by which they can dissolve the exist- ing corjwratlon having an elective system of government organized under an act creating a uniform system of municipal government, and reincorporate the municipal- ity with another and different form of government, under which the principal officers are appoint- ed by the governor, is unconstitu- tional. The power and duty of the legislature under the Constitution of Florida is limited to the estab- lishment of a uniform system. State ex reL Haley v. Stark, 18 Fla. 255. 52. In Indiana any incorpo- rated town may be dissolved un- der statute. 3 Burn's Anno. Stat. (Ind.) 1908, 1908, § 8996, when two-thirds of the town electors so desire. State v. Husband, 26 Ind. 308. Statutes provide for payment of debts of dissolved corjwration by constituting board of county com- missioners a court of claim to ad- judicate claims, etc. Tippecanoe County Com'rs v. Cox, 6 Ind. 403. 53. Cain v. Brown, 111 Mich. 657, 70 N. B. 337. § 308 POWEE OF COUBT TO DISSOLVE. 691 In Iowa, a town government may be discontinued on a majority vote of the qualified electors at an election ordered by the court. Judgment is then entered dis- continuing the incorporation, and immediately the corporate powers cease. Public notice is given of the disincorporation. The court possesses full power to wind up the affairs of the extinct corporation, to adjudicate all claims against it which must be presented within six months after notice of dissolution, to dispose of its property, to make provision for the pajnnent of all its debts, and for the performance of all its contracts and obligations, and, also, has power to order such, taxes levied and collected from time to time as may be required.*** In Missouri, a city of the fourth class may disincorpo- rate upon petition of two-thirds of the voters, by giving notice, etc.'*' So in that state the county court may dis- incorporate a town upon petition of three-fourths of the legal voters.'^ In Ohio certain municipal corporations may be dis- continued by petition to the council which body orders an election and the question is submitted to popular vote for final decision.*'' § 308. Courts have no inherent power to declare forfeiture of charter. While it is a well-established proposition that the state may by quo warranto or other direct proceeding ques- tion the creation of a municipal corporation or impeach its corporate existence and adjudge that it has no legal existence as a body politic and corporate, or the state may in this manner test the validity of the annexation 54. Iowa Code, 1897, §§ 604-609. lowed. Hambleton v. Dexter, 89 55. Laws of Mo. 1895, p. 65; Mo. 188, 192. R. S. 1909, § 9416. 67. Dutten v. Hanover, 42 Ohio 56. 3 R. S. Mo. 1909, f 9481. St. 215; Fosdlck v. Perrysburg, 14 Can only be disincorporated by Ohio St. 472. Statutory proceedings atrlctly fol- 692 Municipal Goepoeaiions, § 309 or the severing the territory, consolidation, etc.,^* so far, the American courts have never expressly recognized in the judiciary the power to forfeit valid municipal char- ters and thus dissolve the corporation because of the abuse of municipal franchises by the neglect or miscon- duct of its officers or inhabitants, as seems to have been assumed and exercised durilig the reign of Charles II and James II in England.^' All the authorities there- fore, support the doctrine that, in the absence of express statute conferring the power, the courts of this country possess no jurisdiction to declare the forfeiture of a municipal charter.^" In our system the remedies, both legal and equitable, to prevent usurpation of franchises, neglect of public duty, illegal and unauthorized corporate acts, and to en- force performance of municipal obligations, are gen- erally ample, and are considered in this work in their appropriate relations. 2. EFFECT OF DISSOLUTION- AND EEOBGANIZATION. § 309. Effect of judgment of ouster on quo warranto. In Illinois it has been held that the effect of a judg- ment of ouster on an information in the nature of a quo warranto against a village and its board of trustees, is to dissolve immediately the corporation, whether it existed de jure or de facto, and work its dissolution, and take away all its rights, liberties, privileges and fran- chises. Such dissolution, as in case of the death of a natural person operates as r.n absolute revocation of all 58. §,§ 158, 159, 304 ante; Grove, 40 W. Va. 543, 550, 21 S. State ex rel. v. Crow Wing Co. E. 851; State ex rel. v. Miller, 66 Com'rs, 66 Minn. 519, 69 N. W. Mo. 328, 345; Buford v. State, 72 925, 35 L. R. A. 745. Tex. 182, 10 S. W. 401; State ex 59. § 53 ante; Wlllcock, Mun. rel. Chandler v. Huff, 105 Mo. Corp., p. 325. - App. 354, 79 S. W. 1010; 1 Dillon, 60. Opinion of Dillon, J., in Mun. Corp. (5tli Ed.), §§ 331, 333, Welch V. Ste. Genevieve, 1 Dillon 1558; 1 Beach, Pub. Corp. § 119; C. C. 130; Hornbrook v. Elm Tiedeman, Mun. Corp. § 384.. §310 Effect of Dissolution. 693 power and authority on the part of former officers or others to act in its name or in its behalf. Hence, after its civil death its late treasurer has no power to demand or receive corporate taxes on behalf of the dissolved cor- poration.®^ § 310. Rights of creditors of extinct corporation pro- tected — common law rule rejected. Under the ancient English common law, in event of the dissolution or civil death of a corporation, its per- sonal property vests in the king, all its real estate re- maining unsold, reverts to the original grantor or his heirs, and the debts due to and from the extinct corpo- ration are wiped out."^ But the rule to its fullest ex- tent was never adopted in this country, at least so far as the extinguishment of debts was concerned. Neither our courts, nor legislatures have favored it.®^ At one time the doctrine was recognized in North Carolina,®^ but was subsequently rejected.®^ In 1852 it was intimated in Mississippi that the prin- ciples of the common law respecting the effect of the dissolution of a corporation were in force in that state, , except in so far as modified by legislation."® But most of our courts have so often repudiated this odious rule, that now it is believed to be entirely obsolete.®'' 61. Dodge V. People for use, 66. Coulter v. Roberson, 24 etc., 113 111. 491, 496, 1 N. B. 226. Miss. 278, 321; Commercial Bank: 62.. Owen v. Smith, 31 Barb. v. Chambers, 8 S. & M. 17. (N. Y.) 641, 643, 2 Bl. Com. 484. 67. Angell & Ames Corp. § 63. Curran v. Arkansas, 15 779a; 2 Kent's Com. 307, note. How. (56 U. S.) 304, 312, 14 L. Doctrine of the U. S. Supreme Ed. 705; Mumma v. Potomac Co., Court. In 1855 the Supreme Court 8 Pet. (U. S.) 281, 286. of the United States examined the 64. Pox V. Horah, 36 N. C. 358 early and late English cases re- (1 Iredell Eq.). specting what becomes of the 65. Wilson v. Leary, 120 N. C. property of a corporation whose 90, 26 S. E. 630; Broadfoot v. charter has been fprfeited by a Fayetteville, 124 N. C. 478, 32 S. judicial sentence, and concluded E. 804. that the modern rules of the Eng- 694 MuNICIPAIi COEPOBATIONS. §310 The Federal and State Constitutions forbid the impair- ment of the obligations of contracts, either directly or indirectly, by legislative act or otherwise.** Therefore, all contracts by virtue of the force of organic law, sur- vive the dissolution, and creditors may enforce their claims in any mode permitted by law.^* Many statutes provide for the satisfaction of debts, the enforcement of contract obligations, and the winding up of the affairs of the dissolved corporation.^" But in lish Courts have been adopted In this country, extending the pro- tection of chancery over the civU rights of members of moneyed corporations, and recognizing dis- tinct and individual rights In their capital and business. Ba- con V. Roberstson, 18 How. (59 U. S.) 480, 15 L.. Ed. 499. 68. Seibert v. Lewis, 122 U. S. 284, 30 L. Ed. 1161; Louisiana v. New Orleans, 102 U. S. 203, 206, 26 L. Ed. 427; Milner's Executor v. Pensacola, 2 Woods C. C. 632. 69. Louisiana. Schlleder v. Dielman, 44 La. Ann. 462, 10 So. 934. New York. Owen v. Smith, 31 Barb. (N. Y.) 641; People v. Mur- ray, 73 N. Y. 535. United States. Mumma v. Poto- mac Co., 8 Pet. (U. S.) 281, 286; Curran v. Arkansas, 15 How. (56 U. S.) 304, 312, 14 L. Ed. 705; Wolf V. New Orleans, 103 U. S. 358, 26 L. Ed. 395; Mobile v. Wat- son, 116 U. S. 289, 6 Sup. Ct. Rep. 398 ; Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Laird v. De Sota, 22 Fed. 421. When old corporation remains liable for debts incurred by it. Goldschmidt v. New Orleans, 5 La. Ann. 436. Rights, property, etc., when one municipal corporation absorbs another. Barber Asphalt Pav. Co. V. Field, 134 Mo. App. 663, 111 S. W. 907. 70. Statutes relating to debts, contracts, etc. Upon dissolution, all property becomes a trust fund for the benefit of creditors and stockholders, usually by express statutory provisions. People v. O'Brien, 111 N. Y. 1, 18 N. B. 692. Statutes provide for payment of debts. Tippecanoe County Comr. v. Cox, 6 Ind. 403. In Missouri no rights shall be affected by the disincorporation of a town. R. S. Mo. 1909, § 9484. Chapter 8, General Laws, 1895, of Minnesota, provides that where a village is Incorporated as a city, the latter shall be liable for the prior debts of the village. Held, that a judgment rendered against a village after Its Incorporation as a city creates no liability against the city. Lee v. City of Thief River Falls, 82 Minn. 88, 84 N. W. 654. In New York, where a village has been merged in a city, the latter as the legal successor of the former is liable for damages for personal Injuries caused by a de- fective sidewalk of such village. §310 Effect of Dissolution. 695 the absence of statute, according to the just rule of the modern adjudications, both federal and state, a court of equity will now lay hold of the property of the extinct corporation, and administer it for the benefit of its creditors and stockholders. All contracts made while Tyler v. Village of Lansingburgh, 76 N. Y. S. 139, 78 N. Y. S. 433. A contract for street sprinkling entered into by a village about to be merged in the City of New York under the charter of Greater New York to be performed four months after the taking effect of the charter held invalid, and not enforceable against Greater New York. Schwan v. New York, 72 N. Y. S. 806. "Where a municipal corporation Is dissolved and a new corporation is created, composed of substan- tially the same community, includ- ing substantially the same taxable property, within reduced terri- torial limits organized flor the same general purposes, and hold- ing by transfer, without considera- tion, the public property of the former, it is the successor of the old corporation and is liable for its debts." Board of Com'rs v. Clarke & Courts, 12 Okla. 197, 70 Pac. 206. The taking effect of the charter of New York City, on January 1, 1898, deprived the board of su- pervisors of Queen's County of the power over roads after that date, and no recovery can be had against New York City on a con- tract with Queen's County for sprinkling roads, for services ren- dered after such date. Vacheron V. New York, 69 N. Y. S. 608. Under an act annexing the town of Westchester to the City of New York, which provided that "noth- ing in this act shall impair the obligation of any contract, and the property of inhabitants of the ter- ritory annexed by this act * • * shall continue liable to the credi- tors ♦ • * in like manner as if this act had not been passed," it was held that the town of Westchester had no power, after the passage of the act, to incur future obligations, and services thereafter rendered It, or disbursements made, were without authority in law. Hender- son V. New York, 72 N. Y. S. 609. Under the Texas statute provid- ing that where any de facto cor- poration shall cease to operate and exercise the functions of such a de facto corporation, all its prop- erty shall be turned over to the county treasurer, and the com- missioners' court shall sell and dispose of same and settle the debts due by the corporation, it is held that the proi>erty of citi- zens of a de facto municipal cor- poration created by the voluntary action of persons living in the territory sought to be incorpo- rated, may be made liable for the debts of the corporation. Car- thage et al. V. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440. A statute of Vermont abolish- ing a town and forming from its territory two new municipal cor- 696 Municipal Corpobations. §310 the corporation was in existence survive the dissolution and may be enforced in equity, so far as to subject, for their satisfaction, any property ;^ossessed by the corpo- ration at the time. In the view of equity, the property constitutes a trust fund, pledged to the payment of the debts of creditors and stockholders^^ poratlons, provided that all the claims existing against the old corporation be enforced against one of the new ones and subse- quently apportioned and adjusted between them. Held, that a claim for aid to a pauper rendered after the division is not within the provisions of the statute. East Montpelier v. Barre, 79 Vt. 542, 10 L. R. A. (N. S.) 874, 66 Atl. 100. Where a city surrenders its charter and reincorporates under the general law in South Carolina, it does not lose its right to collect taxes and other debts due to it under the old charter. Nor Is the right of a citizen to require the municipality to pay its debts thereby impaired. Milster v. Spartansburg, 68 S. C. 243, 46 S. E. 539. The laws of 1899 of New York, Incorporating a village as a city, provided that all obligations, lia- bilities and duties of the village should be transferred to the city, and that the rights of the per- sons under contracts of the vil- lage should not be affected by such incorporation. Held, that an owner of land abutting on a city street, with other abutting owners, who conveyed to the vil- lage, before such incorporation, the fee of the street, may, un- der Laws, 1883, p. 100, ch. 113, have an ascertainment and determina- tion of damages occasioned by a"- change of grade of such street made after such conveyance, though the statute was repealed, before such incorporation, by General Village Laws, 1897, p. 366, c. 414, which also provided for damages to abutting owners, and though the charter of the city did not authorize a claim lor damages caused by change of grade of the street. Lawton V. New Rochelle, 100 N. Y. S. 771. Where the town of Lake Charles, Ixiuisiana, extended its limits by an amendment of its charter, and the amendment was after- wards declared illegal by the courts, it was held that the fail- ure of the amendment did not place the city in a position to deny its indebtedness contracted after the adoption of such amend- ment. Lake Charles Ice, Light & Water-works Co. v. Lake Charles, 106 La. 65, 30 So. 289. 71. "Dissolution does not de- stroy the obligation of the com- pany's contracts — the equitable rights of creditors surviving the act of dissolution, and attaching to the assets and property of the corporation in the hands of its liquidator." Schleider v. Dielman, 44 La. Ann. 462, 470, 10 So. 934; Morawitz on Corp. § 1035. § 311 Effect of Dissolution. 697 This well-settled rule, relating to private corporations, applies with like force to municipal corporations: "If a municipal corporation," declares the Supreme Court of the United States, "upon the surrender, or extinction in other ways, of its charter, is possessed of any prop- erty, a court of equity will equally take possession of it for the benefit of the creditors of the corporation. ' ' ''^ § 311. Dissolution of illegal corporation — de jure suc- cessor liable. Although a place may have no legal existence as a body politic and corporate because not incorporated ac- cording to law, and which in a proper proceeding is ad- judged to be dissolved as a municipal corporation, but is subsequently legally incorporated as a city, embracing the same territory as the illegal corporation, street im- provement bonds issued while it existed as a de facto corporation are binding on the new corporation ; and the fact of legal disincorporation does not have the effect of avoiding subsisting contracts of the de facto munici- pal government.''^ So town orders duly issued after the attempted incorporation and organization of a town from certain detached territory of two other towns are chargeable against such towns, where the ordinance creating the new town is judicially vacated in a direct proceeding subsequent to the issuing of such orders.'^* 72. Per Mr. Justice Field In 73. Shapleigh v. San Angelo, Broughton v. Pensacola, 93 U. S. 167 U. S. 646, 17 Sup. Ct. 957, 42 266, 268, 269, 23 L. Ed. 896, ap- L. Ed. 310; Ranken v. McCallum proved in Meriwether v. Garret, (Tex. Civ. App. 1901), 60 S. W. 102 U. S. at page 512, 26 L. Ed. 975. 197. 74. Gilkey v. How., 105 Wis. 41. Chalstran v. Board of Educa- relying on Shapleigh v. San An- tion, etc., 244 111. 470, 91 N. E. gelo, 167 U. S. 646, 17 Sup. Ct. 712. 957, 42 L. Ed. ' 310. 698 Municipal Cobpobations. § 312 The provisional governments for the regulation of the affairs of the cities and towns of the territory of Okla- homa, having no legal Existence as municipal corpora- tions, possessed no power to bind themselves, their officers or inhabitants by contracts or otherwise. But where legal municipal corporations succeed to all the franchises, rights, property, public improvements, people and territory of such de facto governments, it is com- petent for the legislature to require the de jure govern- ments to assume the obligations and pay the debts of their unauthorized predecessors^^ § 312. Extinguishing by dividing — ^legislative appor- tionment of property and debts. As a general proposition, in the absence of constitu- tional restrictions, the legislature may divide municipal corporations as towns, counties, and townships, at its pleasure, and apportion the common property and the common burdens in such maimer as may seem reason- 75. Mayor, etc. of Guthrie v. that upon the dissolution or civil Territory ex rel. Losey, 1 Okla. death of a eor_poration all debts 188, 31 Pac. 190, 21 L. R. A. due to or from it are extinguished. 841 ; Guthrie Nat. Bank v. Guthrie, This is, of course, the rule. The 173 U. S. 528, 19 Sup. Ct. 513, individual corporators would not 43 L. Ed. 796. be liable unless made so by the Examine Coast Co. v. Spring* terms of their charter. But in Lake Borough, 56 N. J. Eq. 615, this case the corporation has not 36 Atl. 21; Blackburn V. Oklahoma been destroyed. The City of 01- City, 1 Okla. 292, 31 Pac. 782, 33 ney is the same municipality as Pac. 708. the Town of Olney. It has mere- Change from town to city. In ly changed its machinery or Olney v. Harvey, 50 111. 453, 455, government, and the titles of its 99 Am. Dec. 530, where by legis- ofHcers, and is called a city In- latlve act a town was changed stead of a town. But it is the to a city, it was held that the same municipality. It consists corporation remained the same of the same people, and what- under its new organization as ever corporate property the town a city, and therefore, any debts possessed would, without dispute, incurred by the corporation while devolve upon the city. This re- a town would continue to be the suit is shown by the legislative debts of the corporation as a city, act." The court said: "It is insisted §312 Division by Legislatueb. 699 able and equitable ; ^^ however, in doing so, of course, contract obligations must not be impaired directly or indirectly. Thus an act dividing a township between a city and another township, and directing that the debts owing by the first extinct township should be paid, in certain proportions, by the last two corporate bodies, imposes a duty on such bodies to pay such debts, and which is enforceable against them by creditors.'^'' So, 76. Alabama. Waring v. Mayor, 24 Ala. 701. Connecticut. Granby v. Thurs- ton, 23 Conn. 419; Hartford Bridge Co. V. East Hartford, 16 Conn. 172; Willlmantic School Society v. School Society, 14 Conn. 469. Illinois. Olney v. Harvey, 50 111. 455. Iowa. Langworthy y. Dubuque, 16 Iowa 273. Maine. Frankfort v. Wlnterport, 54 Me. 250; North Yarmouth v. Sklllings, 45 Me. 142. Massachusetts. Stone v. Charles- town, 114 Mass. 214; Weymouth, etc. Fire Dept. v. County Comrs., 108 Mass. 142; Hampshire v. Franklin, 16 Mass. 76; Justices Opinion, 6 Cush. (Mass.) 577. Minnesota. Hunter v. Tracy, 104 Minn. 378, 116 N. W. 922; Christiansen v. Tracy, 104 Minn. 533, 116 N. W. 925; State ex rel. v. Demann, 83 Minn. 331, 86 N. W. 352, citing State v. Lake City, 25 Minn. 404; Winona v. School Dist., 40 Minn. 13, 41 N. W. 539, 3 L. R. A, 46, 12 Am. St. Rep. 687; Rum- sey V. Sauk Centre Town, 59 Minn. 316, 61 N. W. 330; Canosla v. Grand Lake Tp., 80 Minn. 357, 83 N. W. 346. Missouri. Thompson v. Abbott, 61 Mo. 176. New Hampshire. Bristol v. New Chester, 3 N. H. 71. New York. Sill v. Corning, 15 N. Y. 297. Ohio. Powers v. Wood County, 8 Ohio St. 290. Oregon. Morrow County v. Hendryx, 14 Ore. 397, Pennsylvania. Borough of Dun- more's Appeal, 52 Pa. St. 374. Vermont. Montpelier v. East Montpelier, 29 Vt. 20, 67 Am. Dec. 748. Wisconsin. Washburn Water- Works V. Washburn, 129 Wis. 73, 81, 108 N. W. 194; Depere v. Belle- vue, 31 Wis. 120, 125; Goodhue v. Beloit, 21 Wis. 636; La Pointe v. O'Malley, 47 Wis. 332, 2 N. W. 632; Butternut v. O'Malley, 50 Wis. 333, 7 N. W. 246; Knight v. Ashland, 61 Wis. 233, 244, 21 N. W. 65; United States. Morgan v. Be- loit, 7 Wall. (U. S.) 617, 19 L. Ed. 203. Legislature may abolish subdi- visions of a municipality as its school districts, and vest their property in and impose their obli- gations upon the city. Whitney V. Stow, 111 Mass. 368; Rawson V. Spencer, 113 Mass. 40. 77. Neilson v. Newark, 49 N. J. L. 246, 8 Atl. 29a 700 MUNICIPAX, COEPOEATIONS. §312 forming a new town from parts of two existing towns, and providing that certain portions of the property of the old towns shall belong to the new town, is competent legislative action^* Where two separate towns are created out of one, each, in the absence of any statutory regulation, is en- titled to hold in severalty the public property of the old corporation which falls within its limits/^ In case of division of the territory where trust prop- erty is held for some charitable purpose, if the original municipality is not destroyed, it must continue to exe- cute such trust.*" But where two new corporations are created out of the old, which action, in effect dissolves it ; or where it is extinguished by having all its territory annexed to another and the trustee is thus destroyed without substitution, equity will appoint a new trustee who will be authorized to execute the trust.*^ 78. Bristol V. New Chester, 3 N. H. 524. 79. Gonnecticut. Hartford Bridge Co. V. Bast Hartford, 16 Conn. 149, 171. Indiana. Allen School Tp. v. 'Macy School Tp., 109 Ind. 559, 10 N. E. 578. Kansas. Wellington v. Welling- ton Tp., 46 Kan. 213, 26 Pac. 415. Massachusetts. Lynn v. Nahant, 113 Mass. 433. New York. North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109. United States. Liaramie County V. Albany County, 92 U. S. 315, 23 L. Ed. 552. 80. Harrison v. Brldgeton, IG Mass. 16. 81. Montpeller v. East Mont- peller, 29 Vt. 12, 67 Am. Dec. 748; Montpelier v. East Montpeller, 27 Vt. 704. , Statutes providing for dissolu- tion. Harris v. Water Valley, 78 Miss. 659, 29 So. 401; Greenwood V. Delta Bank, 75 Miss. 162, 21 So. 747; Biloki v. Borries, 78 Miss. 657, 29 So. 466. In Pennsylvania where a bor- ough has been set off from a town- ship, equity has jurisdiction under the Act of June 12, 1878, p. 184, to ■ascertain and apportion between the borough and the township the liabilities and also the assets of the township, existing at the time of the borough incorporation. Munhall Borough v. Mlffin Town- ship, 210 Pa. St. 527, 60 Atl. 155. Doctrine of division of property. "The doctrine upon which the division of property of municipali- ties Is founded is an equitable doc- trine resting upon the relative rights of the municipalities, the character of the property to be divided, and legislative regulation of the subject." Washburn Water- Works Co. V. Washburn 129 WlB. 73, 8ll, 108 N. W. 194. § 313 Effect op Change of Boundaries. 701 § 313. Same — illustrative cases. " In New Jersey the legislature may impose upon a new or enlarged corporation the debts of the pre-existing municipal corporation which has merged into it where the debts were incurred for municipal property or im- provements which by the merger passed to that body.*^ In Missouri a statute provided that on the extension of the territorial limits of a city to include any portion of any incorporated city, town or village, "the corpo- rate existence of such incorporated city, town or village so included shall ipso facto cease, and all property and rights of every kind and nature belonging to and vested in such incorporated city, town or village, shall by op- eration of law, at once pass to and vest in the city mak- ing such extension of its limits," and it was held that the word "rights" included not only property rights, but also such municipal powers as were necessary to the performance of the obligations and the discharge of the liabilities legally assumed and incurred by the de- funct corporation. Hence, the absorption of the city au- thorized the city extending its limits to issue a valid tax bill in lieu of a void bill issued by the city absorbed prior to such absorption.** A statute which provides that "if any incorporated town be annexed to another the town so annexing the territory of another shall be bound for all debts and liabilities, and shall be the owner of all the corporate property, franchises and rights of such municipal cor- poration," was held in Kentucky to have no application where the territory annexed is unincorporated.** Where one municipality is legislated out of existence and its territory is annexed to other municipal corpo- rations, it is wholly within Vie power of the legislature, 82. McCulley v. Board of Edu- Field, 132 Mo. App. 488, 111 S. W. cation, 63 N. J. L. 18, 42 Atl. 776, 907. citing New Orleans v. Clark, 95 U. 84. Carpenter et al. v. Central S 644, 24 L. Ed. 644. , Covington et al., 119 Ky. App. 785, , 83. Barber Asphalt Pav. Co. v. 81 S. W. 919. 702 Municipal Cobpoeations. § 313 in the absence of constitutional restrictions, to apportion between them the debts of the dissolved municipality, and to determine what proportion shall be borne by each ; but in the absence of such legislation, the municipal cor- porations receiving the territory of the one dissolved will be severally liable for its then existing legal debts in the proportion that the taxable property within it falls within them respectively, and will not be restricted to the property and persons within the territory an- nexed.*^ Where a charter, under which two townships, and part of the territory of two other townships, have been incorporated as a city, provides that such city shall not be liable for the debts of either township, such city is not liable for the payment of bonds issued by one of the townships prior to such incorporation.*^ If the inhabitants and territory are the same, or sub- stantially the same, it will be presumed that the legis- lature, in providing for the reorganization of such corporation, intended a continued existence of the same corporation, although different powers are possessed un- der the new charter, and different officers administer the affairs of the mimicipality. And, in the absence of express provision to the contrary, it will be presumed that the legislature intended the liabilities, as well as the rights of the property of the corporation in its old form should accompany the corporation into its re- organization.*^ A town to which almost the whole business portion of another town was transferred was held to have no claim on a fund devised to the latter town under particular statute.*® 85. Pepin Tp. v. Sage, 129 Fed. 87. Washburn Water-Works Co. Rep. 657. V Washburn, 129 Wis. 73, 108 See also Mt. Pleasant v. Beck- N. W. 194. with, 100 U. S. 514, 25 L. Ed. 699, 88. Weston v. Amesbury, 173 100 U. S. 814. Mass. 81, 53 N. E. 147. 86. Humboldt v. Barnesville, 83 Minn. 219, 86 N. W. 87. §314 Annexation ob Consoliijation. 703 A city may assume the debts of a corporation con* Bolidated with it without submitting the proposition to the tax-payers.^* § 314. Absorption by annexation or consolidation. Where a municipal corporation is legislated out of existence and its territory annexed to other corpora- tions, the latter, unless the legislature otherwise pro- vides, become entitled to all its property and immunities, and are severally liable for a proportionate share of all its then subsisting legal debts, and vested with the power to raise revenue wherewith to pay them by levying taxes on the property transferred and the persons residing therein."" 89. Brownwood v. Noel (Tex. Civ. App.), 43 S. W. 890, reversing 42 S. W. 1014, citing Shapleigh v. San Angelo, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310. As to necessity of vote of tax payers, see Quanah v. White, 88 Tex. 14, 28 S. W. 1065. Right of action for property taken hy county authorities after consolidating with city, under par- ticular statute. Napier v. Brook- lyn, 58 N. Y. S. 506, 41 App. Div. 274. The control of the operation of a street railway on county terri- tory under a county franchise is taken from the county upon the annexation of such territory to a municipal corporation and be- comes amenable to the will of the proper municipal authorities. Peterson v. Tacoma Ry. & Power Co. (Wash., 1910), 111 Pac. 338. See § 294 ante. 90. Mt. Pleasant v. Beckwith, 100 U. S. 514, 25 L. Ed. 699; In re Sanitary Board of Fltchburg Sanitary Dist. (Cal. 1910), 111 Pac. 368; In re Upper Fruitville Sanitary Dist. (Cal. 1910), 111 Pac. 372; E. D. & A. L. Stone Co. V. Reilly (Cal. 1910), 111 Pac. 373; Walker v. Rome, 6 Ga. App. 59, 64 S. E. 310; Wade v. Richmond, 18 Gratt. (Va.) 583; Hlgginbotham v. Commonwealth, 25 Gratt, (Va.) 633. Property on absorption. School building on land annexed to a borough passes to such borough, in the absence of legislative act au- thorizing the adjustment of indebt- edness and value of school real estate. In re School District, 31 Pitts. Leg. J. (N. S.) 189. Where the whole territory of a town is annexed to another, the annexed town is destroyed, and its assets and liabilities become assets and liabilities of the town to which it is annexed, unless oth- erwise provided in the statute, or ordinance making the annexation. "After such annexation the ter- ritory of the extinguished town is 704 Municipal Coepoeations. § 314 The remedy of the creditors of the extinguished cor- poration is in equity against the corporations succeed- ing to its property and powers.®^ In Wisconsin it has been held that the rule that, the annexed town is destroyed and its assets and liabilities become assets and liabilities of the town to which it is annexed, does not apply when the annexation is merely for a temporary purpose, as, for example, until the elec- tors can organize a town government by the election of officers.®^ Where a part of the territory of a town is detached therefrom and annexed to another town or created into a new town the old town, not being dissolved, retains all its franchises and property and remains liable for all debts existing at the time suqh territory is detached, and none of such debts become a charge against the town to which the territory is annexed or against the new town created, unless specially provided in the stat- ute or ordinance making the change.®^ And the fact that the territory detached had formerly been a separate town and had then incurred the debts in question does not alter the rule.** no more charged with the pay- town with the dehts of the extln- ment of the debts of such town guished town." Schrlher v. Lang- than is the territory of the town lade, 66 Wis. 616, 630, 29 N. W. to which it is annexed, either at 547. law or in equity; but such debts 91. Mt. Pleasant v. Beclcwitli, become absolutely the debts of the 100 U. S. 514, 25 L. Ed. 699. town to which the extinguished • 92. Schriber v. Langlade, 66 town is annexed, in its enlarged Wis. 616, 29 N. W. 547. capacity. The reason given is 93. Schriber v. Langlade, 66 that the enlarged town is supposed Wis. 616, 631, 29 N. W. 547. to be benefited by the assets of The old corporation retains all the annexed town and by the in- its franchises and property. De- creased value of its taxable prop- pere v. Bellevue, 31 Wis. 120. erty, and these supposed benefits 94. Schriber v. Langlade, 66 are deemed a sufficient consider- Wis. 616, 631, 29 N. W. 547. ation for charging the enlarged §314 Annexation ob Consolidation. 705 So in one case where the legislature organized two new counties and included within their limits part of the territory of an existing county, but made no provision for apportionment of debts and liabilities, it was held by the Supreme Court of the United States that the old county being solely responsible for the debts and liabili- ties it had previously incurred, had, on discharging them no claim on the new county for contribution.^^ The extinction of a municipal corporation by absorp- tion into another city does not extinguish a school dis- trict of such corporation.®^ Many statutes provide for the apportionment of prop- erty and debts in event of absorption by annexation or consolidation, and these, together with the decision con- struing them, are referred to in the notes.^'' 95. Laramie County v. Albany County, 92 U. S. 307, 23 L. Ed. 552. 96. State ex rel. v. Henderson, 145 Mo. 329, 46 S. W. 1076. See Smith v. People, 154 111. 58, 39 N. E. 319. 97. In California where two or more contiguous municipal corpo- rations are consolidated into one corporation all rights, liabilities and suits remain unchanged after the consummation of the consolida- tion, but "no property within either of the former corporations so consolidated shall ever be taxed^ to pay any portion of any indebt- edness of either of the other of such former corporations con- tracted prior to or existing at the date of such consolidation." Gen- eral Laws of California (Deering) 1897, pp. 609, 611. Colorado. Constitutional amend- ment and laws consolidating city and county of Denver construed. Montclair v. Thomas, 31 Colo. 327, 73 Pac. 48. 1 McQ.— 45 In Iowa municipal corporations may unite on submitting the ques- tion to the vote of the electors of both corporations. Such annexa- tion does not affect or infer any rights or liabilities then existing for, or against either of such cor- porations. Each is required to pay its own debts. Code of Iowa 1897, § 612-614. Minnesota. When territory em- braced in any village or borough corporation is included in a city, such village or borough corpora- tion shall, upon the establishment of such city corporation, cease, and all property of village or bor- ough becomes vested in the city and all its obligations are imposed upon the city. Laws of Minij. 1889, pp. 50-52. In New Hampshire taxes due a town upon annexation to another belong to the latter by statute. Gilford V. Munsey, 68 N. H. 609, 44 Atl. 536. New York. By consolidation 706 MuNICIPAIi COEPOEATIONS. §315 § 315. Dissolution and reincorporation — new is suc- cessor of old, when. An absolute repeal of a municipal charter is effectual so far as it abolishes the old corporate organization, but act New York City assumes bur- den of unexpired contracts of em- ployees of town — tiere a librarian — included within new limits. Bell V. New York, 61 N. Y. S. 7a9, 40 App. Div. 195. Where a statute provides that the court may apportion the debt of territory annexed between such territory and the city and further provides that such apportionment shall be determined by the rela- tive assessed value of real estate Included in or remaining without the city, the court is bound by the rule of apportionment so provided and cannot adopt another as more equitable. Queens County v. New York, 62 N. Y. S. 1047. 48 App. Div. 337. Tax levied by territory annexed subsequent to the adoption of the charter for annexation or before the same took effect becomes part of the debt to be apportioned. Queens County v. New York, 62 N. Y. S. 1047, 48 App. Div. 337. Torts. The city of Brooklyn is the proper party defendant for a tort committed by a town after its annexation although the tort was committed before the annexation. The act annexing the town which provides that Brooklyn shall not be liable for "any debt, liability or obligation" incurred by the town prior to its annexation, but that the property of such town Bhall remain liable for such debts and obligations and the moneys and interest as have accrued shall be raised by taxation on the prop- erty In the annexed town is. In- tended to confine the area of tax- ation for such debts and obliga- tions to the territory which would have been liable but for such an- nexation. Huflmire v. Brooklyn, 162 N. y: 584. 57 N. B. 176. 48 L. R. A. 421. In case of merger, new corpora- tion is liable for torts. Adams v. Minneapolis, 20 Minn. 484. Ohio. In Ohio, by statute, the annexation of one corporation to another when completed requires that the two former corporations shall be governed as one. 1 Bates Annotated Ohio Statutes, § 1606 et seg. The rights, liabilities, suits, etc., remain the same. In that state where a village which had Issued bonds for street improvement was annexed to a city it was held that the council of the city in order to pay the bonds had a right to levy a tax upon the property of the vil- lage only. Cleveland v. Heisley. 41 Ohio St. 670. In Ohio when the corporate lim- its of a city or village become identical with those of a township, the township officers shall be abol- ished and all powers generally with few exceptions as to officers are vested in the city. 1 Bates Anno. Ohio Stat. § 1623; State v. Ward, 17 Ohio St. 544; Directors, etc. V. Toledo, IB Ohio St. 409; §315 DlSSOliiUTl'ON AND BeINCOEPOEATIOST. 707 when the same or substantially the same inhabitants are erected into a new corporation, whether with extended or restricted territorial limits, such new corporation is Curtiss V. McDougal, 26 Ohio St. 67; McGill v. State, 34 Ohio St. 251. Officers of annexed territory be- come functi officio. Graff v, Moy- lan, 28 La. Ann. 75; Miller v. Greenwalt, 64 N. J. L. 197, 44 Atl. 880; Greenwalt v. Miller, 64 N. J. L. 722, 46 Atl. 1100. Change of class, effect on officers. Moser v. Shamleffer, 39 Kan. 635, 18 Pac. 956; Ritchie v. South Topeka, 38 Kan. 368, 16 Pac. 332; Stewart v. Adams, 50 Kan. 560, 32 Pac. 122; People t. Hull, 64 Hun 638, 19 N. Y. Supp. 536. Miscellaneous illustration as to obligations, liabilities, etc., on ab- sorption by annexation or con- solidation. Effect on reorganization under the general incorporation laws. McGrath v. Chicago, 24 111. App. 19. In passing from one class to an- other, the organizations remain the same. Ritchie v. South To- peka, 38 Kan. 368, 16 Pac. 332. Where a village corporation is created whose limits among other territory comprises parts of two towns and the power to improve the streets of the new corporation is vested in a board of village trustees one of the old towns has no power to make improvements and issue its bonds therefor since the old power in this respect is conferred upon the new corpora- tion. Bull V. Southfield, 14 Blatchf. W. S. C. C, 216 Fed. Cas. No. 2120. When a rural district is made the slie of an Incorporated town, exclusive jurisdiction over the public roads and highways there- tofore existing within the corpo- rate limits passes to the corporate authorities. McCain v. State, 62 Ala. 138. Provision is made by some stat- utes for the adjustment of the in- debtedness between the old and new corporations by court proceed- ings. In re School Board's Peti- tion, 1 Leg. Rec. Rep. (Pa.) 11; Darby Tp. v. Lansdown, 174 Pa. St. 203, 34 Atl. 574. The question of succession of rights and liabilities is controlled by the law providing for the an- nexation or consolidation when such matters are attempted to be so regulated. New Orleans v. Town Sinking Fund Commission, 1 Rob. (L^.) 279. An agreement as to the adjust- ment of the liabilities will be held invalid as against bondholders who had not consented thereto where the people of a city and a township were all liable upon the bonds issued in aid of rail- ways before the Incorporation of the city, where such agreement re- lieves the city fom liability on such bonds. Oswego Tp. v. Ander- son, 44 Kan. 214, 24 Pac. 486. When old remains liable for debts incurred prior to absorption. Bradish v. Luck&n, 38 Minn. 186, 36 N. W. 454. Transition from town to city does not destroy prior debts. Olney 708 Municipal Coepobations. §315 treated in law as the successor of the old one, entitled to its property rights, and subject to its liabilities.®* V. Harvey, 50 111. 543, 99 Am. Dec. 530. New to assume obligations of old, when. Quanah v. White, 88 Tex. 14, 28 S. W. 1065. A town voted, by its electors in town meeting, to devote $1,000 to plaintiffs for the use of a bridge which they were to build within a certain time, over a certain river. Afterwards, and before the completion of the bridge, part of the territory of the town was or- ganized Into a city, the law provid- ing that the business of the town, up to the time of the commence- ment of the city government, should be settled by the town as thereafter constituted, and the amount of funds remaining or debts due, as the case might be, should be proportioned between the city and town in proportion to the taxable property in each such settlement, to be made by the city council with the supervisors of the town. Held, that the town was liable for the whole debt and the city was not so liable. Good- hue V. Town of Belolt, 21 Wis. 636. The new corporation may levy tax for payment of pre-existing liability, when. Manley v. Emlen, 46 Kan. 655, 27 Pac. 844. The new corporation succeeds to the property of the old. La- kin v. Ames, 10 Gush. (Mass.) 198; Rose V. Hawley, 118 N. Y. 502, 23 N. E. 904; Wellington v. Welling- ton Tp., 46 Kan. 213, 26 Pac. 415. When property of old does not pass to new corporation. Board of Education v. Board of Educa- tion, 41 Ohio St. 680; Essex v. Low, 5 Allen (Mass.) 595; Sagi- naw Tp. V. School Dlst., 9 Mich. 541. Where upon the consolidation the debts are apportioned by leg- islative act a creditor may en- force his rights against the old corporation. Brewis v. Duluth, 3 McGrary 219, 9 Fed. 747. Where an Incorporated town la reorganized as a city, the latter becomes liable for the former's debt. Laird V. De Soto, 22 Fed. 421. Obligations imposed on new cor- poration. Pacific Imp. Co. v. Glarksdale, 74 Fed. 528, 20 G. C. A. 635; Garey v. St. Louis Gounty, 38 Minn. 218, 36 N. W. 459. Torts. In an action against a town for damages the fact that after defendant town's commis- sioners were elected but before the accident part of the town was in- corporated into a city does not render the city in any way lia- ble. Embler v. Wallklll, 132 N. Y. 222, 30 N. E. 404. Where the new incorporation succeeds to all of the rights, fran- chises and property of the old It becomes charged with all liabili- ties. Guthrie v. Territory, 1 Okla. 188, 31 Pac. 190, 21 L. R. A. 841. 98. United States. Shapleigh V. San Angelo, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310; Mor- gan V. Belolt, 74 U. S. 613, 19 L. Ed. 203; Board of Gommlssioners V. Vandrlss, 115 Fed. 866; §315 Change of Teeeitoey. 709 So a change in the charter, in whole or in part, or the substitution of a new charter, embracing substantially the same corporators and the same territory, will not D'Esterre v. New York, 104 Fed. 605. 44 C. C. A. 75. Kansas. See also Vandrlss v. Hill, 58 Kan. 611, 50 Pac. 872. Oklahoma. Greer County v. Clarke, 12 Okl. 197, 70 Pac. 206. Texas. Ranken v. McCallum, 25 Tex. Civ. App. 83, 60 S. W. 975. Dissolution and reincorporation — new as successor ot old illus- trated. The new incorporation succeeds to the liabilities of the old on its bonds. Smith v. Morse, 2 Cal. 524; Rumsey v. Sauk Cen- tre, 59 Minn. 316, 61 N. W. 330; Brewis v. Duluth, 3 McCrary 223, 13 Fed. 334. After absorption the new corpo- ration becpmes liable without di- rect promise or agreement with the old. Thomas v. Abbott, 61 Mo. 176. Sometimes the new is made lia- ble by the legislative act author- izing the new corporation. Ho- boken v. Ivison, 29 N. J. Li. 65. When new not liable on bonds Issued by old. Jones v. Pensacola, 13 Fed. Cas. No. 7488, 6 Chic. L. N. 264. Where the reorganization of an incorporated town as a city is dis- solved by a decree in quo warranto proceedings and a valid city or- ganization comprised of the same people and trustees is created in the place of the town, the new organization becomes liable as the successor of the town, upon its bonds, notwithstanding the city contains a trifle less land within Its limits than the town contained. Laird v. De Soto, 23 Fed. 780. The new corporation Is suc- cessor of the old and is therefore liable on all the bonded indebt- edness of the old, when. Bates v. Gregory, 89 Cal. 387, 26 Pac. 891; Brown v. Milliken, 42 Kan. 769, 23 Pac. 167; Maysville v. Schultz, 33 Ky. (3 Dana) 10. Under the law of Illinois dur- ing the change from a town to a village organization the corpora- tion is not released from the obli- gation to exercise the power with which it is invested, to keep its streets and sidewalks In a safe condition. Evanston v. Gunn, 99 U. S. 660, 25 U Ed. 306. Neither the identity of a munici- pal corporation nor Its right to hold property devised to it, is de- stroyed by a change of name, an enlargement of its area, or an in- crease in the number of its cor- porators. Girard v. Philadelphia, 7 Wall. (U. S.) 1, 13, 19 L. Ed. 53. Where a town is reincorporated with the same name or substan- tially the same powers as before but with some excision of popula- tion and territory, the effect is not to extinguish the debts of the or- iginal corporation, but to leave them subsisting as valid obliga- tions against the new one, Rosa V. Wimberly, 60 Miss. 345, over- ruling Port Gibson v. Moore, 13 Smed. & M. 157. Where the new is intended to supersede the old it succeeds to 710 MuNICrPAL COKPOEATIONS. §315 be deemed, in the absence of express legislative declara- tion otherwise, to effect the identity of the corporation, or, to relieve it of its previous liabilities, although dif- ferent powers are possessed under the amended or new charter, and different officers administer its affairs.®* all rights and assumes all obliga- tions of old. Episcopal C. Soc. v. Episcopal Ch., 1 Pick. (Mass.), 372i 374; Atty. Gen. v. Leicester, 9 Beav. (Eng.) 546. "To ascertain ■whether a char- ter create a new corporation, or merely continues the existence of an old, we must look to its terms and give them a construction con- sistent with the legislative intent and the intent of the corporators." Per Story, J., in Bellows v. Au- gusta Bank, 2 Mason (U. S.) 31, 44. If not a continuance of the old the new becomes a new legal per- sonality and is not liable for the debts of the old. lb. Hoffman v. Van Nostrand, 42 Barb. (N. Y.) 174; Neely v. Yorkville, 10 S. C. 141. "There is no rule or principle of the common law by virtue of which the creation of a municipal corporation can be held to convert the debts previously due, either jointly or severally, from the per- sons who become the members of the new municipality, into corpo- rate liabilities. In the absence of any express legislative enactment the corporation cannot, be said to be the successor of or in privity with its members so as to be re- sponsible for their previously ex- isting liabilities. There is no le- 'gal identity between a corporation and the individuals who compose it. The corporate body is a dis- tinct legal entity, and can be held liable only by showing some breach of corporate duty or con- tract." Per Bigelow, C. J., in Mayhew v. Gay Head, 13 Allen (Mass.) 129, 134, 135. The effect of a new charter In reincorporation merely continues the old corporation and does not have the effect of extinguishing the debts of the city incurred un- der the former charter, nor does the property of the corporation es- cheat to the state. An act passed with such intention would be un- constitutional and void. Smith v. Morse, 2 Cal. 524, 554; Hopkins v. Swansea, 4 M. & W. 621. "It has never been disputed, that new charters revive, and give activity, to the old corporation; where the question has arisen in which there was any remarkable metamorphosis, it has always been determined that they remain the same as to debts and rights." Per Lord Mansfield, quoted in Smith v. Morse, 2 Cal. 524, 554. Question discussed as to effect of recognizing a public corpora- tion. Savannah v. Steamboat Co. R. M. Charlt. (Ga.) 342. 99. Broughton v. Pensacola, 93 V. S. 266, 23 L. Ed. 896. §316 Functions Suspended: Eevival. 71i The principle which applies to the state is held to be applicable to cases of this kind. Obligations assumed by its agents continue against the state, whatever changes may take place in its constitution or govern- ment. "The new government succeeds to the fiscal rights, and is bound to fulfill the fiscal obligations, of the former government. It becomes entitled to the pub- lic domain and other property of the state, and is bound to pay its debts previously contracted." ^ The powers of taxation to pay the debts of the old corporation which fall upon the new as its legal suc- cessor, and which power was possessed at the time of their creation, and which entered into the contracts, also survive and pass into the new corporation.^ "A debt contracted by a municipal corporation will survive as a debt against whatever corporate entity is subsequently created to take its place and exercise its power of local government over substantially the same people and territory. ' ' * All suits pending against the old corporation at the date of the change may be reAn.ved against the new.* §316. Same — suspension of govemmentalfunctions — revival. In 1881, by legislative act, the charter of the Town of Fayetteville, N. C, was surrendered and repealed. In 1883 the legislature created a taxing and police district out of the territory included in the boundaries of the old town of F., the taxing and police districts to be called F. 1. Wheaton, Inter. Law 30, ap- 2. Mobile v. Watson, 116 U. S. provingly quoted In Broughton v. 289, 6 Sup. Ct. 398, 29 L. Ed. 620. Pensacola, 93 U. S. 266, 270, 23 3. Hill v. KohOKa, 35 Fed. Rep. L. Ed. 1896; Laird v. De Soto, 22 32, 33, per Thayer, J. Fed. Rep. 421; People v. Murray, 4. O'Connor v. Memphis, 6 Lea 73 N. Y. 535. (Tenn.) 730. 712 Municipal Coepoeations. §316 Under the last act all of tlie property of the former Town of F. was transferred to the custody and control of the board of commissioners appointed by the legislature. The public buildings, streets and squares and the polic- ing of the same were placed under the charge of these commissioners. Taxes were levied by the legislature with a specification as to the purposes to which they were to be applied. In 1893 the legislature incorporated the inhabitants within the old territory of the Town of F. under the name of the City of Fayetteville. Here it was held: 1. That the new corporation, the City of Fayetteville, is so far the successor of the old corporation, the Town of Fayetteville, as to be liable for its debts.^ 2. {Arguendo) That a legislative act pro\'idiag that the new corporation should not be liable for the debts of the old would be unconstitutional. 3. That provisions in the act of incorporation ot tne City of Fayetteville which prohibits the levying of taxes for the payment of the bonds of the old corporation are invalid and cannot be regarded.* 5. New as successor of old. taxable property, and has received "Apparently each corporation the property of the old corpora- created by a separate charter is a tion without consideration; and distinct entity, and from this it for these benefits must, in return, may be argued with plausibility bear the burdens of the old corpo- that no two successive corporations ration. can be connected unless they are "The liability in such case com connected by the terms of the act mences from the receiving of the which created them. * • » in. benefits and whether those bene- the case before us twelve years fits were received one or ten years, elapsed between the repeal of the or more, from the repeal of the charter of the Town of P. and the old charter, makes no difference." incorporation of the City of F.; Broadfoot v. Fayetteville, 124 N. but we cannot see how that can C. 485, 487, 32 S. E. 804. alter the principle Involved in the 6. Relying on Mobile v. Wat- case. The foundation upon which son, 116 U. S. 289, 6 Sup. Ct. 398, the liability of the new corpora- 2i» L. Ed. 620; Wolff v. New Or- tion rests is that the new corpora- leans, 103 U. S. 358, 26 L. Ed. tion embraces the same territory, 395, and other United States Su- the same corporators, the same preme Court decisions, above cited, § 316 Suspension op Functions : Revival. 713 4. That the loss of the ability of the creditor to sue a municipal corporation by reason of the repeal of its charter suspends the operation of the statute of limita- tions, until its successor, organized under a new charter, takes benefits from the property of the old corpo- rationJ So when a town fails for several years to elect officers and discharge its functions as an organized town, such neglect does not destroy its liability for debts previously contracted, but when it again assumes the functions of a town such liability may be enforced, even though such resumption of its functions and election of new officers take place under a special law providing there- for.* And in the case where a township was, by statute, con- verted into a city, and debts accrued, and such statute was then repealed making no provision for the payment of the city debts, it was held that an action would lie for such claims against revived township.^ The doctrine of continuance of corporate existence by revival after suspension for a time of municipal func- tions is well established by the English courts. This is accomplished by a new charter the effect of which is to confer all the rights of the old corporation upon the new as well as to impose upon it all liabilities.*" 7. Broadfoot v. Fayettevllle, him, no matter what his metSf 124 N. C. 478, 32 S. E. 804. morphosls may be; otherwise by 8. Schrlber v. Langlade, 66 changing the name and the form Wis. 616, 29 N. W. 547. the debt can be extinguished." Late civil war did not suspend Scaine v. Belleville, 39 N. J. L. 526, functions of municipalities within 530. , the confederate lines. Selma v. 10. Rex v. Passmore, 3 Term. Mullen, 46 Ala. 411. Rep. 119, 247; Colchester v. Brooke, 9. "Whenever the real debtor 7 Queen's Bench, 383; Regina v. is in existence I think that by no Bewdley, 1 P. W. M. 207; Col-, legislative action can the creditor cheater v. Seaber, 3 Burr. 1866. be deprived of his remedy against 714 Municipal Coepoeatiohs. § 317 § 317. Dissolution without substitution. Where the corporation is completely destroyed, with- out provision for the payment of its debts and the wind- ing up of its affairs, and no other corporation is created to take its place, in the present state of the decisions, it would seem that creditors ^re practically remediless so far as appeal to the judiciary is concerned. Thus it has been determined by the Supreme Court of the United States that, a public corporation charged with specific duties within a certain district, being superseded in its functions by a law dividing the district and creating a new corporation for one portion and placing the other under charge of local authorities, ceases to exist except so far as its existence is expressly continued for special objects, such as settling up its indebtedness and the like; and where no provision is made for the continuance or new election of officers the functions of the existing officers cease at the expiration of their respective terms, and the corporation becomes de facto extinct. In such case mandamus will not lie to enforce the assessment of taxes for the payment of judgments against the corpo- ration as there are no officers to whom to direct the writ. Nor can the court, by mandamus, compel the new corpo- ration to perform the duties of the extinct corporation in the levy of taxes for the payment of its debts, especi- ally where the territorial jurisdiction is not the same, and the law has not empowered the officers to make the levy. Nor can the court order its marshal to levy taxes , in such case ; nor in any eases, except where a specific law authorizes such proceeding.^* Appeal to the legislature appears to be the only rem- edy of the creditors of the extinct corporation.** 11. See Lee County Supervisors Equity has no jurisdiction. V. Rogers, 7 Wall. (TJ. S.) 175, 19 The proposition that the levy and L. Ed. 162 ; Rees v. Watertown, collection of taxes though they are 19 Wall. (U. S.) 107, 22 L. Ed. to be raised for the satisfaction of 72. judgment against counties and 12. Barkley v. Levee Comrs., 93 towns is not within the jurisdic. U. S, 258, 23 L. Ed. 893. tlon of a court of equity was re- § 317 Dissolution without: Substitui;ion. 715 In another case the legislature, in effect, destroyed the municipal government of a city by repealing its charter, remanding the territory and inhabitants thereof to the government of the state and establishing a taxing district with means of local self-government over the same inhabitants and territory, but requiring the neces- sary taxes for the support of the local government thus established to be imposed directly by the legislature and not otherwise. Here the Supreme Court of the United States concluded that the property held by the city for public uses, and generally everything held for govern- mental purposes could not be subjected to the payment of the debts of the city, nor could the private property of those within such limits, except through taxation which could only be levied and collected under authority from the legislature.^^ If the theory be adopted that the grant of power to levy taxes for municipal purposes be treated as a grant of power to the inhabitants of the incorporated district viewed and reafiSrmed by the Su- (3) The inadequacy of law, preme Court of the United States T/hich sometimes justifies the in- In Thompson v. Allen County, 115 terference of a court of equity, U. S. 550, 6 Sup. Ct. 140, 29 L. Ed. does not consist merely in its fail- 472, per Mr. Justice Miller. ure to produce money, a misfor- In that case it was held tune often attendant upon all rem- (1) The fact that the remedy at edies, but that in its nature or law by mandamus for levying and character it is not fitted or adopted collecting taxes has proved inef- to the end in view; for, in tliis fectual, and that no officer can be sense, the remedy at law is ade- found to perform the duty of levy- quate; as much so,, at least, as ing and collecting them, is no suf- any remedy which chancery can flcient ground of equity jurisdlc- give. tlon. 13. Meriwether v. Garrett, 102 (2) The principle is the same U. S. 472, 26 L. Ed. 197; Lilly v. where the proper officers of the Taylor, 88 N. C. 489. county or town have levied the Compare Heine v. Levee Comrs., tax and no one can be found to 19 Wall. (U. S.) 655, 22 L. Ed. accept the office of collector of 223; Rees v. Watertown, 19 Wall, taxes. This gives no jurisdiction (U. S.) 107, 22 L. Ed. 72; Amy v. to a court of equity to fill that of- Watertown, 130 U. S. 301, 9 Sup. fice or to appoint a receiver to Ct, 530, 32 L. Ed. 946. perform its functions. 716 Municipal Cobpobations. § 317 and not as a grant to the legal entity or corporate body, then, such power being vested in such inhabitants would survive in like manner as all corporate obligations under any form of governmental organization within the de- fined limits ; and the exercise of such power could be compelled by the courts whenever officers exist who may legally exercise such power. Judge Dillon ventures this suggestion as a possible solution of the many diffi- culties." 14. 1 Dillon, Mun. Corp. (5th fundamental existence upon the Ed.), S 339. act of incorporation, but upon its Tiedeman, Mun. Corp., § 43, natural existence as a community; adopts this suggestion, wherein and that the act of incorporation the opinion is expressed that this was simply a legislative Invest- "Is strictly in line with the fun- ment of the community with the damental conception of the char- franchise of acting as a legal per- Acter and origin of municipal in- sonality and of exercising the pow- corporation, namely, that such ers of local government." corporation does not rest for Ita See §§ 54, 169 tupra. Municipal Chaeteb. 717 CHAPTEE 9. THE MUNICIPAL CHAETEE. 1. Genebai, Consideration. 2. Municipal obqanization of St. Lotns. 3. Chartebs op various cities — Chicago, San Francisco, Los Angeles, Greater New York, Galveston and Des Moines. 4. Pboof, construction and amendment op charters. 1. GENERAL CONSIDERATION. See. Sec. 318. Nature and purpose of char- 322. ter. 319. Various definitions of cliar- ters. 323. 320. Municipal charter defined and described. 324. 321. Same subject — contains the municipal powers and pre- scribes the form of organi- zation. Same — ^the scope of the func- tions of municipal govern- ment. Constitutional and legislative municipal charters. Special municipal powers In California. 2. Municipal otoanization of bt. louis. Sec. 325. Characteristic features of a constitutional charter — St. Louis. 326. Same — general outline of mu- nicipal government and re- lation of the city to the state. 327. Powers and responsibility of officers under the St. Louis charter. 328. Mayor authorized to approve only such appointees as mentioned in the charter. 329. Department of public im- provements — approval of appointees. Sec. 330. 331. 332. 333. 334. 335. Same — legislative interpreta- tion of president's supervis- ion. Mayor's general supervisory control. Conclusions as to approval of appointees In the depart- ment of public Improve- ments. General functions of the coun- cil. The house of delegates. Should the mayor be given more power? 718 Municipal Coepobations, § 318 3. CHARTERS OF VARIOUS CITIES CHICAGO, SAN FRANCISCO, IX)S ANOEMS, GREATER NEW TORE, GALVESTON AND DES MOINES. Sec. Sec. 336. Municipal organization of 339. Municipal organization of Chicago. Greater New York. 337. Charter of San Francisco. 340. Commission plan — Galveston. 338. Charter of Los Angeles. 341. The Des Moines plan of city , government. 4. PROOF, CONSTRUCTION AND AMENDMENT OF CHARTERS. Sec. Sec. 342. Proof of charter — judicial no- 347. Same subject. tlce. 348. Indirect or legislative amend- 343. Construction of charter. ment of constitutional char- 344. Same subject. ters. 345. Legislature may amend and 349. Amendments forbidden by repeal municipal charters. special or local laws. 346. Direct amendment of consti- tutional charters. 1. GENEKAli CONSIDBBATION. § 318. Nature and purpose oif charter. Although historically inaccurate,^ the theory is that the state antedates the municipal corporation, and hence, the charter is, in theory, a delegation of a portion of the state's powers for local self-government.* In the view of the law the state has all necessary power for the protection of the property, health and comfort of the puhlic, and it may delegate this power to its municipal corporations in such measure as may be deemed desirable for the best interests of the public ; * and the state may resume it again when deemed expedient.* In legal language, we say the legislature delegates its powers 1. § 69 supra. State v. Slmonds, 3 Mo. 414; St. Ch. 4, Legislative control of Louis v. Russell, 9 Mo. 507. municipal corporations. 3. Stoutenburgh v. Hennick, 2. Kelly v. Meeks, 87 Mo. 396; 129 U. S. 141, 147, 9 Sup. Ct. 256, State V. Wilcox, 45 Mo. 458; Rug- 32 L. Ed. 637; Covington v. East gles V. Collier, 43 Mo. 353; St. St. Louis, 78 111. 548. Louis V. Clemens, 43 Mo. 395; 4. Harmon v. Chicago, 110 IlL 400, 409, 51 Am, Rep. 698. §318 Chaetee: Natuek: Pubpose. 719 relating to civil government or local administration to counties, cities, towns," and other forms of public corpora- tions, which delegation as stated in a prior section, is regarded as a qualification of the fundamental maxim of government that the legislature cannot delegate its power to make laws.* And while true in theory, the fact is, accurately speaking, the state cannot be considered as delegating authority which it never possessed, since the management of local affairs was never a state duty or powerJ However, the courts regard charters as in- struments conferring privileges, or recognizing rights, emanating from the state, the paramount authority.* The corporation owing its existence to the law, is precisely what the law makes it. As is more fully shown elsewhere, it has no powers except those expressly con- ferred or which are necessary to the exercise of those expressly given, and also to enable it to accomplish the purpose of its creation.®* 5. f 124 ante. 6. CaXifornia. In re Wall, 48 Cal. 279. Georgia. HiU v. Decatur, 22 Ga. 203; Predu v. Ellis, 18 Ga. 586. Illinois. Harmon v. Chicago, 110 111. 400, 408. Kentucky. Louisville City R. R. Co. V. Louisville, 8 Bush. (Ky.) 415. Maine. State v. Merrill, 37 Me. 329. Maryland. Fell v. State, 42 Md. 71. Missouri. Metcalf v. St. Louis, 11 Mo. 103. Ohio. Markle v. Akron, 14 Ohio 586. New York. Clarke v. Rochester, 28 N. Y. 605. "Municipal corporations form an exception to the rule ■which for- bids the legislature to delegate any of its powers to subordinate divisions." McMahon v. Savan- nah, 66 Ga. 217, 224. 7. §§69 and 70 ante. Ch. 4, Legislative control of mu- nicipal corporations. 8. § 165 ante. 8a. § 352, et seg., post. California. Oakland v. Carpen- tier, 13 Cal. 540, 545; Douglass v. Placervllle, 18 Cal. 643, 647. Connecticut. New London v. Bralnard, 22 Conn. 552. Indiana. Benjamin v. Webster, 100 Ind. 15. Massachusetts. Spaulding v. Lowell, 23 Pick. (Mass.) 71, 74. "The powers of all corporations are limited by the grants in their charters and cannot extend beyond them." Petersburg v. Metzker, 21 111. 205. All city charters are limited by the operation of the general law. Kennedy v. Miller, 97 Cal. 429, 32 Pac. 558. 72P Municipal Coepoeations. § 319 The charter is the power of attorney which defines and limits the objects and powers with which the municipal authorities are entrusted.^ § 319. Various definitions of charters. In the early English law, a charter was an instrument in writing, containing a grant from the Crown to an>' person or persons or to any body politic of any rights. liberties, franchises or privileges, otherwise bailed a Eoyal Charter. These charters are prescribed in tho Charter EoUs. All written acts of the sovereign in the nature of grants were made in the form of letters-patent and received upon the Patent EoUs.®" In modern law, a charter is a grant in writing of cer- tain privileges and franchises, usually to a corporatioii by the supreme power of a state; an act of incorpora tion.io A charter of incorporation is the instrument evidencing the act of a legislature, governor, court, or other author- ized department or person, by which a corporation is or was created.^^ 9. Hitchcock V. St. Louis, 49. N. W. 120; Granger's Life, eti,. Mo. 484, 488, per Wagner, J. Ins. Co. v. Kampeir, 73 Ala. 325. 9a. Corporation by grant. "For- Charter defined. "An act of merly the Pope, as well as the the legislative department of gov- Crown, could create corporations ernment, creating a corporation, is by grant, and such corporations called the charter of the corpora- were called spiritual corporations tion. Bent v. Underdown, 15G of persons dead in law, as, for in- Ind. B16, 60 N. E. 307; Merrick v. stance, an abbot and convent; but Van Santvoord, 34 N. Y. 208. now only the Crown can create a In a legislative grant. Stark- corporation by grant, and no other weather v. Brown, 25 R. I. 142, 55 person can prescribe to do it." Atl. 201. 8 Laws of England (Halsbury), "A charter fs a contract, to the p. 314. validity of which the consent of 10. Burrill's Law Diet., tit. both parties is essential, and, "Charter." therefore, it cannot be altered or 11. Anderson's Law Diet., tit. added to without such consent." "Charter;" Bergman v. St. Paul This refers to a private corpora- M. Bldg. Assn., 29 Minn. 278, 13 tion. Dartmouth College v. Wood- §320 Municipal Chaeteb Defined. 721 Broadly speaking, a charter is an instrument emanating from the sovereign power in the nature of a grant, either to the whole nation, or to a class or portion of the people, or to a colony or dependency and assuring to them certain rights, liberties or powers. Such was the great charter or Magna Charta, and such also were the charters granted to certain of the English colonies in America.*^ § 320. Municipal charter defined and described. The laws under which a municipal corporation exer- cises its privileges, performs its duties and discharges its obligations, including all matters in which the munici- pality has a direct interest, and a right to regulate and control, constitute the charter.^* That is, the word ward, 17 U. S. (4 Wheat.) 518, 663, 4 L. Ed. 629. See also, Parrlngton v. Putnam, 90 Me. 405, 37 Atl. 652, 38 L. R. A. 339; Alabama, etc. R. Co. v. Burk- ett, 46 Ala. 569; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165. 12. Black's Law Diet. (2d Ed.), tit. "Charter;" Bouvier's Law Diet. (Rawle's Ed.), tit. "Charter;" State V. Railroad Commissioners, 37 N. J. L. 238; Dew v. Judges, etc., 3 Hen. and M. (Va.) 22. As to nature of charter govern- ments among the early American colonies, see 1 Story Const, § 161. "A corporate charter is In the nature of a commissioner from the state to its citizens, and their successors in Interest, whether at home or abroad. Each govern- ment, in the exercise of its own discretion, determines, the condi- tions of Its grant. It Is free to impose or omit territorial restric- tions. It cannot enlarge its own ii'jisdictlon, but It can confer gen- eral powers, to be exercised wlth- 1 McQ.— 46 In its bounds, or beyond them, wherever the comity of nations Is respected. For the purpose of commerce, such a commission Is regarded, like a government flag, as a symbol of allegiance and au- thority; and it is, entitled to recog- nition abroad until It forfeits rec- ognition at home." Merrick v. Van Santvoord, 34 N. Y. 208, 215. 13. State V. Edrmantraut, 63 Minn. 104, 65- N. W. 251. "The charter of a municipal corporation Is a delegation of pow- ers to its governing authority." Harrodsburg t. Renfro, 22 Ky. Law Rep. 806, 58 S. W. 795, 51 L. R. A. 897. A city's charter "is the defini- tion of Its rights and obligationa as a municipal entity, so far as they are not otherwise legally, granted or imposed. The very act of incorporation, therefore, neces- sarily Includes the idea of a char- ter and the power to frame and adopt one." Jackson v. Harring- ton, 160 Mich. 550, 125 N. W. 383, 17 Det. Leg. N. 141. 722 Municipal Cobpoeations. § 321 "charter," when used in connection with a municipal corporation, consists of the creative act and all laws in force relating to the corporation, whether in defining its powers or regulating their mode of exercise.^* As used in a constitution forbidding amendments to town charters, it was held that, charter included charters granted by special act as well as those granted under general incor- poration laws. "Whilst it would not be improper to use the word 'charter' to designate the organization of a village under a general law, it is much more appropriate to use the word as designating a special law under which a village is organized." ^* The effect of an act of the legislature incorporating a city or town is to invest the governing authorities of the municipality — either a majority of the voters, or such officers as are prescribed — ^with the power of local govern- ment over the inhabitants of that district. Such an act, strictly speaking, confers powers which did not exist before, e. g., the power of lajdng taxes, and passing local laws for the purposes named in the act.^* § 321. Same subject — contains the municipal powers and prescribes the form of organization. Charters have been designated as bills of right.^'^ And municipal charters are sometimes mentioned as consti- 14. St. Petersburg v. English, 16. Goodwin v. East Hartford, 54 Fla. 585, 599, 45 So. 483; Peo- 70 Conn. 18, 38 Atl. 876. pie V. Briggs, 50 N. Y. 553, 559. The charter is not a contract, "Corporate powers." The phrase as used in the constitution; hence, In a constitution "to grant corpo- the state legislature has power to rate powers or privileges," held to revoke, change or modify at pleas- mean "in principio donatiowls," ure. State v. Earlier, 116 Iowa 96, and equivalent to the phrase "to 89 N. W. 204, 57 L. R. A. 244, 93 grant corporate charters." Attor- Am. St. Rep. 222; § 165 ante. ney-General v. Chicago, and N. W. 17. People v. Morris, 13 Wend. Ry. Co., 35 Wis. 425, 460; Brady (N. Y.) 325, 334. V. Moulton, 61 Minn. 185, 186, 63 Charter. Some six centuries N. W. 489. since, the early founders of Eng- 15. Smith V. Sherry, 50 Wis, lish liberty called the Instrument 210, 214, 215, 6 N. W. 561. which secured their rights a char* § 321 Municipal Charteb : Powers : Oeganization. 723 tutions or organic laws of municipal corporations.'* A constitution being established by the people becomes the organic law of the state ; so a municipal charter framed and adopted in like manner as authorized in California, Colorado, Minnesota, Missouri, Oklahoma, Oregon and Washington becomes the organic law of the people pro- mulgating it in all matters pertaining to the local civil government of the municipality, but a legislative charter being but grants of power or recognitions of rights should not, strictly speaking, be termed a constitution or organic law. As we have seen a municipal corporation, may be created without any special form of words,** and its charter, not being a contract,'*" as the charter of a private corporation,^* need not be accepted in order to make it bindiag.^^ ter. It was, indeed, a concession; they had obtained It sword in hand from the king; and in many- cases whatever was obtained, fa- vorable to human rights from the tyranny and despotism of the feu- dal sovereigns was called by the names of privileges and liberties as being matter of special favor." From speech of Webster on the Greek Revolution in the House of Representatives, January 19, 1821. This language has been retained to the present time. 18. Cooley's Con. Llm. (6th Ed.), 227; St. Louis v. Western Union Tel. Co., 149 U. S. 465, 467, 468, 13 Sup. Ct. 990, 37 L. Ed. 810; East Tennessee University v. Knoxville, 6 Baxt. (Tenn.) 167, 170; Kansas City v. Marsh Oil Co., 140 Mo. 471, 41 S. W. 943; St. Louis V. Dorr, 145 Mo. 466, 478, 41 S. W. 1094, 46 S. W. 976; St. Louis v. Poster, 52 Mo. 513; St. l^uig V, Cfjeason, 15 Mo, App. 25, 93 Mo. 33; Forry v. Ridge, 56 Mo. App. 615; People ex rel. t. Mount, 186 111. 560, 58 N. E. 360; Piatt V. San Francisco, 158 Cal. 74, 110 Pac. 304. A charter constitutes "a sort of organic law, a constitution for local self-government." Williams V. Davidson, 43 Texas 1, 35. 19. § 150 ante. 20. § 165 ante; Goodwin v. East Hartford, 70 Conn. 18, 38 Atl. 876; State V. Barker, 116 Iowa 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222; Coler v. Cleburne, 131 U. S. 162, 9 Sup. Ct. 720, 33 L. Ed. 146; Philadelphia v. Fox, 64 Pa. St. 169; Mt. Pleasant v. Beckwlth, 100 U. S. 514, 25 L. Ed. 699. 21. Dartmouth College v. Wood- ward, 4 Wheat. (U. S.) 518, 624, 712, 4 L. Ed. 629. 22. § 153 ante. Generally speaking, the munici- pal charter bears substantially the 724 Municipal Coefobations. § 321 The municipal charter creates tlie body politic and corporate, contains the municipal powers and gives the form of municipal organization, locates the corporate bpundaries and wards or other subdivisions, classifies and distributes the powers and duties of the various departments, boards and officers, and provides the man- ner in which the several powers shall be exercised. As all of these matters should be definitely established it follows that, a municipal corporation, cannot have at one and the same time two co-existing charters.^* It is usual to give the name of the corporation in the charter ; however, omission in this respect, as shown else- where, will not invalidate it.** The charter sometimes prescribes the qualification of voters and specifies the time and mode of electing munici- , pal officers ; and, sometimes provides punishment by removal or suspension of officers who become derelict in their duties. However, these matters are usually pro- vided in the constitution or general statutes of the state.*' The precise limits of power that may be conferred by charter are impossible of definition. They will be sus- tained in so far as they relate to matters of local self- government and administration.*^ Special legislative charters necessarily vary in the powers conferred and in the rights recognized in them. ' So charters adopted by virtue of constitutional provisions will be unlike in many respects, and this is clearly within the contemplation of the, constitution.*'^ Under the general incorporation laws of most, of the states there is uniformity in the rights and powers in so same relation to the local govern- 25. See (Hh. 12 post. ment that a state constitution 26. Cooley's Const. Llm. (6th hears to the government of the Ed.), 227. commonwealth. Deming, Govern- See § 89 ante and § 323 post. ment of American Cities, ch. XIV, 27j State ex rel. v. Field, 99 p. 188. Mo. 352, 12 S. W. 802; Kansas 23. Ex parte Moore, 62 Ala. 471, City v. Marsh Oil Co., 140 Mo. 476; Butler v. Walker, 98 Ala. 358. 458, 41 S. W. 943. 24. f 248 ante. § 322 Contents of Charter. 725 far as they relate to classes and grades, flence, where classification is mandatory all municipal corporations of the same class or grade possess the same rights and powers and are subject to the same restrictions.^* § 322. Same — the scope of the functions of municipal government. The functions of the local corporation which are pro- vided for by the charter generally include: (1), the maintenance of the public safety, peace and order by a police force; (2), the execution of legal process by the various executive and administrative officers, and judicial process, usually by the marshal and policemen; (3), the establishment and maintenance of a fire department, to protect property against fires; (4), the protection of the public health, including the removal of the causes of dis- eases, preventing the spread of infectious and pestilential diseases, the removal of garbage, offal, and refuse, the cleansing of the streets, alleys and public ways, the disposal of sewerage which requires the establishment and maintenance of a sewer system, taking care of the dead by providing cemeteries and burial grounds; providing for light and air in congested districts and tenement houses and regulating the food and water supply; (5), in some cities, establishing, maintaining and protecting the harbors, wharves, levees, rivers, dikes, docks, piers, moles, etc.; (6), creating and maintaining a judicial de- partment, to promote public justice and to punish all offenders for violating the law affecting the inhabitants of the locality, and protecting personal and property rights; (7), in the larger cities, taking care of the defect- ive and dependent classes, as providing relief for the poor, insane and idiots, the defective, blind, crippled, deaf and dumb, and establishing hospitals for the poor sick and wounded and orphanages for the neglected and homeless children; (8), education of the youth.^' 28. §§ 126, 131 ante. Government, ch. 6, Falrlie, Munlc- 29. See §§ 87, 89 supra. Ipal Administration, part 2, p. 125 Wilcox, Study of City Govern- et seq. ment, ch. 2; Goodnow, Municipal 726 Municipal Cobpoeaijions:. §323 § 323. Constitutional and legislative municipal charters. In this country, municipal charters are either granted by the legislative authority of the state or framed and adopted by the people of the particular community. Legislative charters are of two kinds, namely, (1) special, and (2) those adopted under the provisions of general incorporation laws. As a convenient form of expres- sion, those framed and adopted by the people may be termed "constitutional charters," and those originating by virtue of general or special statutes, "legislative charters." But it should be borne in mind that, in every instance the particular charter contains the municipal powers, rights and obligations and points out the man- ner in which they are to be exercised, and it must harmon- ize with, and be construed in the light of the constitution and laws of the state.*" Therefore, a constitutional charter stands on no higher legal plane than a legislative, for all charters are subject to and controlled by the general laws of the state.*' 30. A municipal charter cannot will; their areas can he extended exempt property from taxation only in the manner prescribed by other than that enumerated in the statute; the elective franchise is constitution. McLendon v. La- exercised under the general laws grange, 107 Ga. 356, 33 S. E. 405. applicable to the whole state; the Majority vote in adopting. San- power of eminent domain is not ta Rosa v. Bower, 142 Cal. 299, extended to them except by stat- 75 Pac. 829. utory delegation and their munlci- 31. Constitutional charter. As ~ pal legislation is restricted to to such charters in Washington, those subjects which rightfully be- "Although the power to frame a long to them in their corporate charter is conferred by the Con- capacity. A charter framed under stitution, no greater intendments the constitutional provision is of are inferred from that fact than no more or larger force than a leg- if it were conferred by a mere act islative charter and can lawfully of the legislature, since by the treat only of matters relating to same section, these favojed cities the internal management and con- are to be at all times subject to trol of municipal ailairs subject the general laws of the state. They to constitutional and legislative are not In any sense erected into regulations." In re Cloherty, 2 independent governments; their Wash. 137, 139, 140, 27 Pac. 1064. existence as municipal govern- See § 194 ante. ments depends upon the legislative § 323 Constitutional and Legislative Chabtees. 727 Hence, a general statute which denies to any municipal corporation of the state, the power to impose a license tax upon any business, vocation, pursuit or calling, unless the same be especially named as taxable in the charter of such municipal corporation, applies alike to all cities.*^. And all general laws within the contempla- tion of the constitution enacted after the adoption of the constitutional charter will, if such was the intention of the legislature, supersede provisions of such charter.^* The provision of a state constitution that the charter adopted by the people of the local community shall be "in harmony with and subject to the constitution and laws of the state," means substantial harmony and not exact conformity. Hence, a provision in a constitutional charter prescribing a different modus operandi for the exercise of the power of eminent domain than that speci- fied in the general laws is not invalid, provided the funda- mental principles of just compensation and opportunity to be heard are secured.** And it has been declared in Minnesota that such con- stitutional requirement does not forbid the adoption of provisions as to any subject appropriate to the orderly conduct of municipal affairs, notwithstandiag they may differ in details from those of the general law,*' In Washington, under the constitutional provision which authorizes cities to make and enforce within their limits all such local regulations as conform to the gen- eral laws, it is held that it is competent for a city to pro- vide for the initiative and referendum.*^ A charter framed by constitutional provisions will supersede the former charter of the particular munici- pal corporation, whether granted by general or special 32. Kansas City v. Lorber, 64 (Kansas City v. Bacon), 147 Mo. Mo. App. 607. 259, 48 S. W. 860. 33. Ewlng V. Hoblltzelle, 85 Mo. 35. Grant v. Berrlsford, 94 64; Davles v. Los Angeles, 86 Cal. Minn. 45, 101 N. W. 940. 37, 24 Pac. 771. 36. Walker v. Spokane (Wash. 34. In re North Terrace Park, 1911), 113 Pac. 775. See §§ 321, 322 ante. 728 Municipal Goepoeations. § 324 statute and after its adoption, becomes the mandatory organic law,''^ and has all the sanction of a legislative enactment.** § 324. Special municipal powers in California. By virtue of special provisions in the Constitution of California, in addition to the usual municipal powers, mu- nicipal corporations, adopting their own charters, are given the express power to establish, regulate and con- trol their own boards of education, boards of election commissioners and boards of police commissioners. They are also given the power to establish their own police or municipal corporation courts.^® However, the latter power is usually found in municipal charters, but it appears that in a few states, as in California and Washington, such power must be conferred by the state organic law, since otherwise it must be exercised by the legislature.*" 37. People ex rel. v. Bagley, 85 ments. State ex rel. v. Zlmmer- Cal. 343, 24 Pac. 716, distinguish- man, 86 Minn. 353, 90 N. W. 783; ing Ex parte Ah You, 82 Cal. 339, Ex parte Smith, 231 Mo. Ill, 132 22 Pac. 929 ; People ex rel. v. Hen- S. W. 607. Bhaw, 76 Cal. 436, 18 Pac. 413, and A freeholder's charter, as to all Thomason v. Ashworth, 73 Cal. proper provisions, has the same 73, 14 Pac. 615. force as a special charter enacted 38. Freeholder's charter has by the legislature. Piatt v. San force of a legislative act. The Francisco, 158 Cal. 74, 110 Pac. provisions of municipal charters, 304. adopted under the Constitution au- 39. § 195 ante. thorizlng cities to framp their own 40. The power to establish po- charters, as to subjects properly lice courts is delegated by the belonging to the government of Constitution to the legislature, municipalities, have all the force In re Cloherty, 2 Wash. 137, 27 and effect of legislative enact- Pac. 1064, § 325 St. Louis Chabteb. 729 2. MUNICIPAL OEGANIZATION OF ST. LOUIS. § 325. Characteristic features of a constitutional char- ter — St. Louis. The charter of the City of St. Louis (population 687,029 — 1910) adopted by virtue of special constitutional provisions (1876), and which is mentioned often as a model, presents these distinctive features: (1) Invests the inhabitants of a designated territory with the local government thereof, by and through a body politic and corporate, styled "the City of St. Louis." (2) Divides such territory into subdivisions or wards, not to exceed twenty-eight, for convenience in government, and provides for re-adjustment every five years of ward boundaries. (3) Separates (though not completely) the executive and administrative municipal functions from the legis- lative, and specifically defines the duties, powers and prerogatives of each. (4) Confers the executive and administrative powers upon a mayor, and heads of designated departments; some of whom are elected and some appointed by the mayor, subject to confirmation by the council. The fol- lowing executive and administrative officers are elected on a general ticket at the municipal election held in April for a term of four years: mayor, president of the board of public improvements, comptroller, auditor, treasurer, collector of the revenues, president of the board of assessors, marshal, inspector of weights and measures, and at the general state election held in No- vember, a license collector for a term of four years.** (5) Vests the general legislative authority in a municipal assembly (subject to the veto power of the may- or) composed of two houses, namely, a council of thir- teen members and a house of delegates of twenty-eight 41. A state statute creates the office of license collector. 730 MuKICIPAL CoEPOEATIONS. § 325 members, the members of the council being elected by tbe people at large at the municipal election in April every two years for a term of four years (six councilmen retire at one time and seven at another), and those of the house by the people of the respective wards which the members represent, at the municipal election in April for a term of two years ; and prescribes specific rules for the exercise of legislative authority, which, in substance, are those which usually appertain to state legislatures. (6) Carefully, and in detail, defines the legislative powers of the city. (7) Provides that the chief executive and administra- tive officers who are named by the mayor be appointed at the middle and not at the beginning of his administra- tion, subject to confirmation by a majority of the council. (8) Eequires the appointment of the heads of de- partments to be made for a definite term of four years, and confers upon them the power to appoint their respective deputies or assistants, subordinates and em- ployees, and render each of them individually respon- sible for the proper administration of his department.** (9) Inhibits the suspension or removal of heads of departments during their term unless "for cause." (10) Allows assistants to hold their positions during good behavior, unless otherwise provided by ordinance, but permits them to be removed "for cause" by the mayor, or by the officer under whom they work "at his pleasure." (11) Establishes a board of public improvements, consisting of six members, all of whom are appointed by the mayor and confirmed by a majority of the council, except the president who is elected by the people at large, and confers upon such board large executive and administrative powers, relating to public work and im- provement, also, quasi-legislatiye functions to the ex- tent of originating all ordinances relating to public 42. The charter does not fully carry out this Idea. § 325 St. Louis Chaeteb. 731 work and improvement which the municipal assembly is prohibited from amending (this body only possessing the power to pass or reject), and also exempts said board, in the legitimate exercise of its prescribed powers and duties, from legislative or executive control. (12) Devises a systematic plan for the doing of pub- lic work and improvement, — such work, first, to be pro- vided for by specific ordinance; second, to be let to the "lowest responsible bidder," after it has been publicly advertised; and third, limiting the contract price there- for to the amount named in the particular ordinance, but where the work is of such magnitude that the whole appropriation therefor cannot be made at once the en- tire work shall be provided for in the improvement ordi- nance, and appropriations therefor may be made from time to time. (13) Prohibits appropriations to be made from any revenue fund in excess of the amount standing to the credit of such fund, and to purposes to which the money therein is not applicable by law. (14) Limits all appropriations to the sum available during any one fiscal year. (15) Creates a system of police courts wherein all offenses against local police regulations are determined. (16) Confines salaries of chief officers, that is, heads of departments, whether elective or appointive, to the maximum amount of five thousand dollars, chief depu- ties or chief assistants (not the head of an office or de- partment) to twenty-five hundred dollars, and clerks to eighteen hundred dollars. (17) Directs that all proposals to amend the charter "shall be submitted separately to a vote of the peo- ple."" 43. For comments on adoption In St. Louis v. Western Union and purpose of the charter of the Tel. Co., 149 U. S. 465, 467, 468, City of St. Louis, see The Munlci- 13 Sup. Ct. 990, 37 L. Ed. 810, Mr. pal Code of St. Louis, 1901, and Justice Brewer characterizes the amended charter of St. Louis (an- City of St. Louis as an "imperium notated) 1902, by the author. in imperio." Atcordlng to the 732 Municipal Cobpoeations. § 326 § 326. Same — general outline of municipal government and relation of the city to the state. Since the separation of the City of St. Louis from the County of St. Louis hy the adoption of the scheme and charter (1876), geographically the City of St. Louis be- came one of the legal subdivisions of the state; politic- ally, it is to be regarded as *a municipal corporation, It is not in any pf the four classes of cities provided by the Constitution and statutes of the state.** It owes duties to the state as an agency of the state government. It is impressed with particular obligations "as if it were a county." The constitution provides that "the city, as enlarged, shall be entitled to the same representation in the general assembly, collect the state revenue and perform all other functions in relation to the state, in the same manner, as if it were a county" *" * * * and the charter of the city contains many provisions to define the mode in which the city shall perform many essential governmental duties toward the state, "as if it were a county. " *® F or instance, the court house in the City of St. Louis is not maintained in the exercise, or by virtue, of the municipal functions of the city, but in the performance of its functions as a county.*^ Though not a county in the sense in which that term is ordinarily used, it is, in a qualified sense, a county being a legal subdivision of the state which bears county relations to decisions of the Supreme Court of sas City v. Stegmiller, 151 Mo. Missouri tills is not a very apt 189, 204, 52 S. W. 723. designation, for the city Is more 45. Mo. Const. 1875, art. 9, § in the nature of a subject province 23. or dependency, subservient at all 46. St. Louis v. Dorr, 145 Mo. times to the will of the general 466, 479, 41 S. W. 1094, 46 S. W. assembly of the state. § 194 ante. 976. 44. State ex rel. v. Mason, 155 47. Cunningham v. St. Louis, Mo. 486, 501, 55 S. W. 636; Kan- 96. Mo 53, 8 S. W. 787. § 327 St. Louis Chabteb. 733 the state, and having many important attributes of a county.*^ The city sustains relations to certain of its citizens, to individuals and to corporations as though it were a private corporation.** Therefore, the charter not only deals with matters of purely municipal and local con- cern, which the Constitution doubtless intended to com- mit to local self-government, but it became necessary that it should also contain many provisions to define the mode in which the city should perform many essential governmental duties towards the state in its capacity as a municipal corporation, acting as the agency of the state in all things within its territory which concern the people of the state at large, as well as certain county functions "as if it were a county." In brief, by the separation of the City and County of St. Louis, the city was placed in a dual relation to the state government. It became invested with certain powers which in other parts of Missouri are performed by county officers, as well as with the usual municipal powers for internal government. § 327. Powers and responsibility of officers under the St. Louis charter. A brief analysis of the municipal organization of the City of St. Louis will indicate many defects in the char- 48. state ex rel. v. Finn, 4 IIo. do not apply to it." State ex rel. App. 347; State ex rel. v. Bus, v. Walsh, 69 Mo. 408; State ex 135 Mo. 325, 337, 36 S. W. 636, rel. v. McKee, 69 Mo. 504, 508. 33 L. R. A. 616; State ex rel. v. "While the City of St. Louis Chicago, etc. R. Co., 195 Mo. 228, is strictly a municipal corporation 241, 93 S. W. 784. its territory is also a subdivision Relation of city to state. "The of the state in which officers are City of St. Louis occupies the dual elected to perform the functions relation to the state of a county of the state government as dis- and a city under its scheme and tinguished from those pertaining charter." State ex rel. v. Bell, 119 to municipal government." State Mo. 70, 73, 24 S. W. 765. ex rel. v. Bus, 135 Mo. 325, 337, "The City of St. Louis is a city 33 L. R. A. 616, 36 S. W. 636. proper and not a county, and the 49. See § 87 ante. laws relative to St. Louis County 734 Municipal Coepobations. § 327 ter wHch are common to tlie municipal charters of most of the cities of this country, except perhaps a few of those of recent origin. An autocratic mayor is not the fundamental idea of the St. Louis charter. By that intrument the mayor pos- sesses the power of selection of the principal officials (except those elected) in the first instance, but his choice is subject to the will of a majority of the members of the council. Moreover, he makes his selections of those who assist in the executive and administrative departments at the beginning of the third year of his term, and thus he must work for two years with those in whose appoint- ments he has no voice, and, the last two years of his term, with those whose terms extend two years beyond his own. The mayor has no power to suspend or remove unless "for cause." There are numerous checks and balances in the St. Louis system. This results in a diffusion of power, and hence, a' scattering of responsibility. This is common in municipal charters in this country. In framing the St. Louis municipal government an effort was made to classify the various municipal functions and to fix individual responsibility on each independent of- ficer or chief of a department for the efficient working of his department, but this end was attained only in part. To accomplish this purpose the officer or head of each department should be given full authority to select and discharge at pleasure his own assistants and sub- ordinates in like manner as the manager of a private corporation or business concern. In some instances the St. Louis charter requires ap- proval of appointees by the mayor, as the employes of the register,^" the marshal,^^ the fire department,^^ and two departments of the board of public improvements, 50. St. Louis Charter, art. IV, 62. St. Louis Charter, art IX, § 23. § 1. 51. St. Louis Charter, art. IV, § 3L §328 St. Louis Chaeter. 735 namely, the park,^* and the harbor and wharf ;*^ but in the majority of cases no approval is mentioned, as in the street, sewer, and the water departments,^" the deputies of the collector,''* and the employes of the assessor and collector of water rates."'' The charter requires the municipal assembly to pro- vide for the appointment by the several members of the board of public improvements of such assistants and em- ployees as the demands of the several departments may require, but makes no mention of the approval of such assistants and employees on the part of the mayor. How- ever, approval on the part of the mayor or the officer of municipal employees is required by ordinances which preserve the check system, and, therefore, no officer in the city government has the unlimited power to choose his own subordinates or assistants, although he may dis- charge "at pleasure." § 328. Mayor authorized to approve only such ap- pointees as mentioned in the charter. . The fact that the St. Louis charter requires the ap- proval by the mayor of appointees of certain officers or departments, as mentioned in the last preceding section, and fails to require such approval in most instances tends to the conclusion that the mayor's approval was not intended to be required except in the cases expressly named. It is a well-established rule of construction that the public official can exercise only such powers as are expressly conferred, and those which are necessary or incidental thereto. Applying this familiar rule, the in- tent of the charter is established that, the mayor is only authorized to approve of such appointees of charter 53. St. Louis Charter, art. VIII, 56. St. Louis Charter, art. V, | § 2. 33, 54. St. Louis Charter, art. IX, 57. St. Louis Charter, art. VII, § 3. S V. 55. St. Louis Charter, art VII, 11. 736 Municipaij Cokpoeations. § 829 officers as are expressly mentioned in that instrument, unless the check designed by the charter of requiring approval of all appointees could not properly be lodged elsewhere. § 329. Department of public improvements — approval of appointees. • The charter creates a department of public work and improvement known as the "board of public improve- ments," consisting of a head, designated as president, who is elected by the people and five commissioners who are appointed by the mayor, and confirmed by a majority of the members of the council, and have a four year term, namely, street, sewer, water, harbor and wharf and park.^* The charter confers upon this department, and upon th& executive and administrative heads of its several divisions the exclusive authority and duty of attending to all the public work and improvements of the city, with responsibility on the part of the board and its respective members to the people only, in the same manner that the mayor and the members of the municipal assembly are responsible. As a means to secure uniformity in action and to enforce proper observance of legal provis- ions relating to its powers and obligations, and the re- spective powers and obligations of its members, the organic law of the city expressly provides that the head of this department "shall have a general supervision over the departments of all other commissioners of the board of public improvements. ' ' ^' This language and other express provisions of the charter imposing upon this board its duties and powers, were doubtless intended to constitute this department a complete and perfect organization in the St. Louis mu- nicipal system to be directed alone by its members, in 58. St. Louis Charter, art. IV, 59. St. Louis Charter, art. IV, § 3. ! 41. § 330 St. Louis Chaetee. 737 like manner as the legislative department known as the municipal assembly, subject, however, as all other ofiScers and departments of the city ,are, to the general super- vision of the mayor and the council in the manner indi- cated by the charter, in order to insure efficiency, prevent corruption and produce harmony ia city government. As stated, by charter, the mayor's approval is re- quired in the appointment of employees of the park commissioner,*" and of the harbor and wharf commis- sioner;®^ but no mention is made in the charter of the approval of the appointees of the other commissioners of the board, namely, the water, the street, and the sewer. Approval on the part of some official of the appoint- ment of subordinates of the several commissioners was regarded as proper by the members of the first munici- pal assembly organized under the charter. This legisla- tion was adopted when the original purpose of the charter was fresh in the minds of these officers and ia the minds of the citizens of St. Louis generally. § 330. Same — ^legislative interpretation of president's supervision. The nature of the exercise of the supervision of the president of the board contemplated by the charter over the several departments of the board is indicated by mu- nicipal legislation, which generally requires approval of appointees by the head of the board; however, in some instances, the approval is required to be given by the mayor. The legislation in this respect is not uniform. But, the legislation recognizes and enforces the general supervision of the president over the several depart- ments of the board in two ways, first, by conferring upon him the authority and obligation to pass upon the valid- ity and accuracy of all pay rolls and accounts of the sev- eral departments, and, second, by requiring his approval 60. St. Louis Charter, art. VII, 61. St. Louis Charter, art. IX 8 2. « 2. 1 McQ.— 47 738 Municipal Cobpokations. § 331 of certain appointees of the several commissioners. It appears that the rule early obtained of requiring the mayor to approve of one or two principal assistants of each commissioner, blit that the employees in general of the various departments of the board, were required to be approved by the president only. The course of legis- lation also discloses the fact that the employees to be ap- proved by the mayor inqrease in number from time to time. § 331. Mayor's general supervisory control. That the president of the board should approve of all the appointees of the board, except those mentioned in the charter, must be accepted as the correct view, unless it be held that the charter provisions relating to the general supervisory control over all departments of the city government confer upon the mayor exclusive power of approval of the appointment of all subordinates hold- ing any situation under the city government or its departments. The charter indicates this general super- vision; The mayor as "chief executive officer of the city," has general supervisory control over all depart- ments, power to examine into them, and to demand re- ports of the chief of every department "as often as may be required by him," and finally, to decide "all questions of difference between the officers of the city affecting their relative powers," in addition to the power to ap- point all officers (but not subordinates, deputies, assist- ants or clerks) except those who are elected. The supervisory control conferred by the charter upon the mayor, above stated, and his power to suspend or remove "for cause;" the power of the municipal as- sembly to ascertain at any time the condition of any office or department; its power to suspend or remove "for cause;" the authority and obligation of general supervision upon the part of the president of the board "over the departments of all other commissioners of the §332 St. Louis Chaeteb. 739 board of public improvements, ' ' ^^ and the general super- vision vested ta other boards and officers, referred to in various parts of the charter, were intended to provide a sufficient method of fixing individual responsibility and a remedy for official incompetency and corruption; but the charter nowhere provides that the mayor shall have the power to approve of the appointment of all employees of the city. On the other hand, one of the first ordi- nances enacted after the adoption of the charter clearly indicates a limitation of the power of the mayor in this respect, in the following language: "He shall approve the appointment of all deputies, assistants and clerks of all city officers, as are required by charter or ordinance to be so approved." This legislative construction is important, and would seem to indicate that the power of approval should be directly confined to those mentioned or intended to be so approved by the charter. The fact that an ordinance re- quires the approval of the chief executive of the city cannot confer this power unless it be authorized by some express or implied provision of the charter ; for, it is a self-evident proposition that an ordinance provision can no more supersede a provision of the charter than an act of the general assembly can suspend or take the place of a provision of the Constitution of the state. § 332. Conclusions as to approval of appointees in the department of public improvements. To sum up: The charter created a department of public work and improvement, with six divisions and an executive head. This department and the heads of the several divisions, it appears, are directly responsible to the people for the proper management of the public functions so conferred. A check on each commissioner is provided within the department in addition to the 62. St. Louis Charter, art. IV, I 41. 740 MxjNICIPAIi COEPOEATIONS. § 332 check in the hands of the mayor and the municipal as- sembly, above mentioned. If the charter had intended that the mayor should approve of the appointments of each commissioner, plain language indicating such in- tent would have been used, as in the cases of the park commissioner and the harbor and wharf commissioner, and in other instances abov^ mentioned. This omis- sion tends to establish the conclusion that in the selec- tion of the subordinates of the other three commissioners, the mayor was to take no part, and this conclusion is fully supported by the early legislation, as mentioned. Since the board of public improvements is made directly responsible to the people for the public work and improvements, in order to discharge effectually this responsibility, it seems reasonable to conclude that the members thereof are more directly concerned in the selection of assistants and subordinates than any other city official. This responsibility can be discharged best by conferring upon the head of the board the authority to approve of all appoiutees of the several commis- sioners thereof. This view does not exclude proper and effective general supervisory control over all depart- ments of the city conferred by the charter upon the mayor. His supervision ife exercised ia a different man- ner, as above shown. The power of approval as sometimes practically ex- ercised amounts to the authority of selection. If in the exercise of the power of approval the authority of selec- tion is usurped then the several commissioners are de- prived of the authority of selection of their own employees, as the charter seems to contemplate. If such power is to be usurped at all it would doubtless be better to have it usurped within the department of public works and improvements, rather than without, since this department as a whole is responsible to the public in ac- complishing specified results. Although in theory the authority of approval confers only the power to exclude bad or incompetent public servants, yet its, practical ex- ercise must not , be ignored. If the mayor should be §>§ 333, 334 St. Lotus Chaeteb. 741 given the authority of approval of all employees of the city, and this power should be exercised, as it often is, it would be very easy to concentrate within one person the final selection of all persons who serve the city ex- cept those, who are elected by the people. The contrary seems to be the idea of the St. Louis charter. To repeat, a division of responsibility to the people for the efiScient workings of the several departments is clearly the dom- inant intent of the charter. The idea of an autocratic mayor has been carefully excluded from the St. Louis municipal system. It is a result of the controlling con- ception supporting the system of checks and balances. It means diffusion of power and responsibility, and sometimes prevents effective municipal administration. § 333. General functions of the council. In the St. Louis system the council performs legisla- tive, ministerial, administrative, and sometimes, judicial functions. This body approves or rejects the appointees of the mayor; in some instances, selects officials; may remove officers "for cause," and thus act as a judicial tribunal; is required to approve of bonds of officers; and may ascertain at any time the condition of any office, or department, and thus exercise a general super- visory control over the entire city government. § 334. The house of delegates. The house of delegates as a legislative body is of equal dignity with the council. Bills may originate in either the council or house, but, to become effective as ordi- nances, must pass both houses by the vote required by the charter and be approved by the mayor; in event of veto, the bill, to become a law must pass both houses by a two-thirds vote. In addition to its legislative functions, the house, in like manner as the council, may ascertain at any time desired the condition of any office or department by 742 MuijriciPAij Coepokations. § 335 resolution or investigation and thus exercise a general supervision over all offices and departments. The purpose of dividing the city into twenty-eight wards and giving each ward a representative in the house was to afford all parts of the city representation in the most numerous branch of the municipal assembly. The St. Louis legislative organization is modeled in ac- cordance with the national and state systems, and the house was intended to be the popular branch, and more directly in touch with the people. The terms of the members are only twoyears, while the terms of the coun- cilmen cover a period of four years, and they are elected by the voters at large, not being the representatives of any particular part, ward or locality of the city. The charter of 1839 created a council for St. Louis composed of two branches or boards, namely, the alder- men and delegates — each ward being entitled to two aldermen and three delegates. This double board con- tinued as the controlling legislative body for a period of twenty years. In 1859 a revised charter provided for a single legislative board, composed of two councilmen from each ward; and this system continued for nearly eighteen years, or until the adoption of the present char- ter (1876). The ward or other similar municipal subdivision plan of representation in the governing legislative branch, whether composed of one or two houses or boards, is the prevailing system in the American municipality. Such plan, whether wise or unwise, would seem to support in some measure the legal view that the municipal corpo- ration in most of its more important functions is an organ of government, and being such the inhabitants of the local divisions of the city should be directly repre- sented. § 335. Should the mayor be given more power? Such are the general outlines of the nature of the St. Louis municipal organization. Notwithstanding in its § 335 St. Louis Chaetee. 743 practical operation its defects are manifest, it has been commended often by students of municipal govern- ment.^* A municipal charter on paper is quite different from a charter in practical operation in the average American city.** Although the St. Louis charter may be, in some re- spects, a model form of municipal government, the ex- perience of that city in the conduct of its local affairs has been substantially the same as that of other large cities of the country. Under the system of checks and balances, and diffusion of power and consequent respon- sibility, as pointed out above, for a period of nearly thirty-five years (1877 to 1911), with numerous griev- ances under every administration, and the difficulty ever present of being able at all times to fiix accurately the blame, the question may be propounded, would the city, or any city, be in better condition if its charter should confer upon the head of the municipal government suf- ficient power to enable him to control completely the en- tire operation of the municipal government, or, in a word, to employ the apt language of Dr. Goodnow, should the charter confer upon him "a plenitude of power (although for a limited period) which is unex- ampled in the aristocratic society and monarchical gov- ernments of Europe.""* 63. "It Is, so far as the writer Proposed new charter for St. can judge, the most complete and Louis failed of adoption. On Jan- successful charter thus far adouted uary 31, 1911, a proposed charter In this country. Indeed, this may drafted by a board of freeholders be regarded almost as an isolated conferring such power upon the case of good government In Amerl- mayor, providing for one house of can. cities." Shaler, The U. S. of legislation to be elected by general Am., vol. 1, p. 230 et seq. ticket, the election of the mayor, 64. See § 94 ante. comptroller, president of the board 65. Goodnow, Municipal Home of assessors, and collector of rev- Rule, ch. 1, p. 5. en".e — a short ballot — and the ap- See § 93 ante. pointment of all other municipal See Wilcox, the Study of City officers and employees by the Government, §§ 124, 125, pp. 227- mayor without confirmation by the 233. council, and unrestricted power to 744 MUNIOIPAL COBPOEATIONS. § 336 6. CHAETEES OF VAEIOXJS CITIES — CHICAGO, SAN FEANCISCO, LOS ANGELES, GEEATEB NEW YOBK, GALVESTON AND DES MOINES. § 336. Municipal organization of Chicago. The City of Chicago was fincorporated March 4th, 1837. The limits of the original town were circum- scribed.^^ Its phenomenal growth, especially since the Civil War, has necessitated the extension of its boun- daries on sixteen different occasions. At present its corporate area is extensive, and embraces a large part of Cook County, in which it lies. Chicago ranks in population (2,185,283 — 1910), as the fifth city of the world, being surpassed in this respect by London, New York, Paris and Tokio (however, by the Asiastic city only 796 inhabitants), and the second in America, which position it has held since 1890. The Constitution of Illinois provides, in substance, that the legislature shall have power, subject to certain limitations, to pass any law (local, special or general) providing a .scheme or charter of local municipal gov- ernment for Chicago, and. that such laws may provide for the consolidation, in whole or in part, in the munici- pal government of the city, of the powers vested in the board of education, township, park, and other local governments within the city's area, and the assumption by the city of the debts (in whole or in part) thereof; may abolish offices, the functions of which are otherwise provided for; may provide for the annexation of terri- tory to or disconnection of territory from the city by the consent of a majority of the legal voters thereof at remove, and other provisions con- ec. The limits of the original forming to suggestions of certain town Included territory bounded writers, was rejected by the elect- on the east by Lalte Michigan, ors of the City of St. Louis. The on the north by Chicago Avenue, vote stood, for 24,817, against on the west by Halstead Street, 65,324. and on the south by Twelfth Street. § 336 Chicago Chakteb. 745 either a general or special election; and in event the municipal assembly shall create municipal courts in the city, it may abolish certain offices, as justices of the peace, police magistrates and constables within the city, and may limit the jurisdiction of justices of the peace with- in Cook County to the territory outside of the city; that the legislature shall have power to prescribe the jurisdiction and practice of municipal courts, and to pass all laws requisite to provide a complete system of local municipal government for the city. No law based upon this constitutional provision, affecting the municipal government of the city, shall take effect until such law shall be consented to by a ma- jority of the legal voters of the city voting on the ques- tion at a general or special election; and no law or special law based upon the provision affecting any part of the city shall take effect until consented to by a ma- jority of the legal voters of such part voting on the ques- tion at any special or general election.®^ The charter of Chicago embraces the general statutory provisions of Illinois concerning the incorporation of cities and villages, and particular statutory enact- ments.^* The city of Chicago, by an act which was submitted to and adopted by the electors of that city on November 7, 1905,*® is given certain powers in addition to those granted by the general statutes relating to cities and towns generally. The act stands as an additional grant of powers except when the terms conflict with those of the general statutes, in which case those of the special act supersede those of the former. 67. Const. 111., art. 4, § 34, lot used did not conform with the Amendment, 1904. provisions of the general law rela- 68. Kurd's Rev. Stat. 111. tive thereto, the form of such bal- (1909), ch. 24, art. 12; The Chi- lot and the manner of holding cago Code of 1911, pp. 974 to 1005. the eleotion being prescribed by 69. The election at which this the act itself. Swigart v. Chicago, special act was adopted has been 223 111. 371, 79 N. E. 48, held to be legal, although the bal- 746 Municipal Coepoeations. § 336 The act fixes the term of office of the mayor at four years, and prescribes certain additional duties to be per- formed by specified municipal officers; provides that, their salaries shall be as fixed by the council in the annual appropriation bill, and that the compensation of officers, shall be by salary alone, and no officer shall be entitled to any fees, emoluments or othfer reward or compensation for his services as such officer. It requires the comptroller to advertise for bids for interest on the city funds at least once a year, and to report such bids to the city council, which shall make an award on such bids to the highest and best responsible bidder or bidders. There is a provision, however, that the council may reject any and all bids and designate as many depositaries as it may deem necessary for the pro- tection of the city's interest, and award bids accordingly. The award, or awards are required to be made to some regularly organized state or national bank, which is required to give bond, conditioned in manner like other official bonds given by public officials charged .with the custody of money. It relieves the city treasurer from liability for money deposited pursuant to proper direc- tion by the city council in the depositary so designated, Members of the city council are prohibited from hold- ing any other public office of any kind, except honorary offices by appointment and without compensation. The council is given power to fix the amount of the penalty of the bonds of city officers and municipal employees charged with the custody of city money or property. It may require the giving of a new bond, or new security, when the security on the original bond has become insufficient; and may increase or decrease the amount of the penalty. But this power is directed to be used for the protection of the city's interests, and in no case for the removal of any person in the civil service of the city without a hearing before the civil service commission, as provided by law. The council is given power to regulate the use of space over streets, alleys and other public places, and upon ^ 337 Chicago and San Feancisco Qharteks. 747 proper compensation to the city, to be fixed by ordinance, may permit the use of the space more than twelve feet above the level thereof. The council is empowered to declare, define and abate nuisances, and regulate the location and conduct of hospitals and infirmaries. The city has power to acquire municipal parks, play grounds, public beaches and bathing places, and equip, maintain and regulate the same. The city also has power of eminent domain.^" § 337. Charter of San Francisco." The City and County of San Francisco is a consolidated city and county and is governed by a Freeholders' charter framed in accordance with the provisions of section 8, article XI, of the Constitution of the State of California. The charter was framed by a Board of Free- holders and ratified by the voters on May 26, 1898, was approved by the legislature January 26, 1899, and took effect January 8, 1900. It presents distinctive features (not found in other municipal charters.''^ Seven amendments were added to this charter in December, 1902, which were approved by the legislature in 1903.^3 70. Act relating to the City of Board of Trustees, 4 Cal. App. 235, Chicago (approved May 18, 1905), 87 Pac. 421, 422; People v. Hoge, and being an amendment of the 55 Cal. 612; Staude v. San Fran- act to provide for the incorpora- Cisco City and County Election tion of cities, towns, and villages. Commissioners, 61 Cal. 313; Wood Approved April 10, 1872. Hurd'8 v. Election Commissioners, 58 Cal. Rev. Stat. 111., 1909, p. 363; The 561, 563; In re Guerrero, 69 Cal. Chicago Code of 1911, pp. 1005 to 88, 100, 10 Pac. 261; People ex 1008. rel. v. San Francisco, 21 Cal. 668, 71. Population 416,912 — 1910. 696; Martin v. Election Com'rs, 72. Copy of charter appears in 126 Cal. 404, 58 Pac. 932; Roths- California Statutes for 1899, p. child v. Bantel, 152 Cal. 5, 7, 91 241 et seq. Pac. 803. The following cases deal with 73. Copy of amendments ap- the government of San Francisco pear in Statutes of California for and different phases of Its char- 1903, p, 583 et seq. ter at various dates. Burke v. 748 Municipal Coepoeatioks. § 337 Prior to the adoption of the present Freeholders' charter the city and county was governed by the so-called "Consolidation Act," which was a special act of the legislature passed and approved April 19, 1856. Trom May, 1850, until the taking effect of the "Con- solidation Act" the city was governed by- special acta of the legislature incorporating the City of San Fran- cisco as a municipal corporatfon. Under the present charter, the elective officers who, with a few exceptions, have a two years term, are : mayor, eighteen supervisors, auditor, treasurer, assessor, tax collector, recorder, city attorney, district attorney, public administrator, county clerk, sheriff, coroner, four police judges, superintendent of public schools and justices of the peace. Boards are also crea:ted to conduct the administrative functions of the local government, the members of which are appointed by the mayor and are required to be selected from the several political parties. Thus the' board of public works which has control of the streets, sewers, public ways and improvements of the city, con- sists of three members, with terms of three years. This board is required to meet weekly. The board of education consists of four members who hold office for four years. This board has charge of the schools and libraries. The police board is composed of four members. The fire board is also composed of four members. The board of health consists of seven members, five of whom are appointed by the mayor, and the chief of police and president of the board of public works are made mem- bers. There are five park commissioners who have charge of the public parks whose term covers a period of four years. The department of registration and election is con- trolled by five commissioners with a term of four years. The civil service idea is incorporated in this charter. The commission consists of three members appointed by § 338 Los Angeles Chaetek. 749 the mayor. Provision is made for a classified civil service, and all examinations of applicants are made public, competitive and free. The legislative power is vested in the board of super- Adsors consisting of eighteen members who are elected for a term of two years with an annual salary of $1,200. Every resident who has served as mayor may sit and debate in the board but has no vote. The mayor is made the presiding oflScer of the board. The board is required to meet weekly and its meetings are public. § 338. Charter of Los Angeles.''* The present charter of Los Angeles was adopted in 1889,^« and was amended in 1903,^« in 1905,''^ in 1907,^« and in 1909.^9 The general municipal election is held every two years, on the first Tuesday in December. The municipal officers are a mayor, nine councilnlen, city clerk, clerk of the mayor, city treasurer, city auditor, city tax and license collector, seven members of the board of educa- tion, city school superintendent, five directors of the Los Angeles public library, city assessor, city engineer, city attorney, water overseer, five police commissioners, chief of police, chief engineer of the water department, five members of the board of health, health officer, five fire commissioners, five park commissioners, five water com- missioners, superintendent of water-works, three commis- sioners of public works, and a secretary of the board of public works. The officers elected at large are : The mayor, city clerk, city attorney, city treasurer, city auditor, city tax and license collector, city assessor, seven members of the board of education and nine members of the council.*" 74. PopulaUon 319,138—1910. 78. Cal. St. 1907, p. 1160. 75. Cal. St. 1889, p. 455. 79. Cal. St. 1909, p. 1289. 76. Cal. St. 1903, p. 555. 80. Amendment, 1909, Cal. St, 77. Cal. St. 1905, p. 980. pp. 12Si3, 1294. 750 Municipal Cobfoeations. § 338 The borough system of government is authorized in any territory annexed to the city. This charter creates a council which consists of nine members, six to constitute a quorum for the transaction of business. It is the governing body of the city, and is required to meet at least once each week. All legislative power is vested in this councjl, a majority of the members of which, when duly assembled, have pdwer to enact ordinances, except ordinances granting franchises, mak- ing any contract, ordering any work to be done or sup- plies furnished, and for a number of other specified purposes, which require a two-thirds vote of the whole council.*^ By virtue of amendment to the charter certain ordi- nances shall not go into effect for thirty days after their passage and approval, and if, during that time, a petition signed by electors amounting to at least seven per cent of the entire vote cast for all candidates at the last pre- ceding general election, shall be presented to the council protesting against the passage of a particular ordinance, the going into effect of the ordinance shall be suspended and the council shall reconsider the same, and if not en- tirely repealed it shall be submitted to the vote of the electors at the next general election or a special election called for that purpose. A vote of a majority of the electors in favor thereof is then necessary to pass the ordinance. Amendment to the charter proyides for the recall of officers, by a proceeding in which it is necessary to file a petition with the city clerk signed by electors entitled to vote for a successor in such office, equal in number to 25 per cent of the entire vote for all candidates for the office at the last general election, demanding an election of a successor. The petition must state the grounds for the removal. Provisions are made for then holding an election to vote on such proposition. 81. Los Angeles Charter, art. 3; Amendment, 1909, Cal, St., p. 1294. § 339 Geeatek New York Chaetbr. 751 The charter also provides for a civil service system and creates a civil service commission. The amendment of 1909, among other things, provides for the acquisition, ownership, maintenance and opera- tion by the city of public utilities. It gives the city power to dispose of surplus water and electricity from its system to other municipal corporations and to consumers beyond its boundaries. The same amendment grants power to the corporation to acquire or build and operate railroads and interurban railroads from any point within the city limits, to any place or places within Los Angeles County and located on the ocean, or any inlet thereof, for the purpose of transporting passengers or freight between the city and the ocean, and to fix and collect charges therefor ; power to acquire or construct and operate public wharves, docks, piers or moles upon the seashore, in connection with the above, and to fix and collect charges therefor. No sale, transfer, lease or disposition of public utilities is legal without the consent of two-thirds of the qualified voters of the city. § 339. Municipal organization of Greater New York. The charter of Greater New York, enacted by the New York legislature May 4, 1897, and going into practical operation January 1, 1898, provides for the government of the largest city in the nation containing a population of 4,766,883 (1910), and covering an area of 360 square miles.^* This charter consolidates various communities into one scheme of municipal government. Its provis- ions have been carefully studied and the frame-work of municipal government presented by it freely commented on by various writers. This municipal constitution is very lengthy, is divided into 1620 sections, covers 559 official pages, in addition to fifty-eight pages of index, and contains about two hundred and fifty thousand words. It seems that this charter commits much of the details 82. Laws of N. Y., 1897, vol. Ill, N. Y., 1901, vol. Ill, ch. 466, going ch. 378; amended charter, Laws of Into effect April 22, 1901. 752 Municipal Cobpobations. § 339 of local affairs to the state legislature and thus denies just municipal freedom, or home rule. The centraliza- tion of power appears so Complete that few changes in local government can be made, without the consent of the state legislature.*^ The charter has been amended several times.** Greater New York is divided into five boroughs, namely, Manhattan, The Bronx, Brooklyn, Queens and Eichmond. The elective officers are the mayor, comp- troller and president of the board of aldermen. The charter is in a large measure the re-enactment of the New York City Consolidated Act of 1882, and it embraces many features of the charter of Brooklyn of 1880, and some of the charter of the City of St. Louis, Missouri. Twenty-five boards of local improvement are estab- lished, each composed of the president of the borough in which it is located and each member of the board of aldermen who represents an aldermanic district within such local improvement district by virtue of his office and during his term as such member. The members thereof serve without compensation. The president of 83. Comments on the charter. Some details as to Its formation Elaborate consideration of this in- and the personnel of the commis- strument has been given by Dr. slon are given by D. B. Eaton, The Albert Shaw (Atlantic Monthly, Government of Municipalities, ch. J^ine, 1897, pp. 733-748), by the 18. New York Bar Association and "Under the new charter, not- others familiar with municipal withstanding Its Imperfections, government. Dr. Shaw concludes a business-like administration that, "the country must look else- should bring municipal progress where. If it seeks instruction in and better government, and citi- the framing of charters." zens may expect a uniform rate The judgment of the bar associa- of taxation and an estimated tion given before the charter was saving of about thirty per cent adopted, recites that "the enact- in the salaries of the Hiunicipal ment of the proposed body of laws officers of the enlarged city." Al- contalned in that charter, would fiocl R. Conkling, Ci{y Government give rise to mischiefs far out- in the U. S., ch. 20, p. 233 (1897). weighing any benefits which may 84. Laws of N. Y., 1901, vol. 3, be reasonably expected to flow ch. 46G. from it." § 339 Geeater New Yobk Ohabter. 753 the borough, by right of his office is chairman of such local board and entitled to preside at all meetings and vote as any other member. Such boards are invested with the power to initiate local improvements where the the cost in whole or iu part is met by assessments upon the. property benefited and also with the power to hear complaints of nuisances, disorderly houses, etc., violative of order and good government. They also receive reports concerning the condition of the poor, etc.®** The power of the mayor is extensive. His term is four years. His salary is fifteen thousand dollars a year. He appoints the heads of departments and all commissioners except as otherwise provided in the act. Fifteen executive and administrative departments exist with a chief for each appointed by the mayor, ex- cept the department of finance. The comptroller, elected on a general ticket for a term of four years, with a salary of $10,000 per year, is the chief of the finance department. Other departments are: An art commission of seven members; one police commissioner; commissioner of water supply, gas and .electricity; three commissioners of parks; a commissioner of public charities; a com- missioner of correction; a fire commissioner; a commis- sioner of docks; a board of taxes and assessments composed of a president and four members ; the board of education composed of forty-six members; the board of health consisting of the commissioner of health, the police commissioner and the health officer of the port; a tenement house commissioner; a board of estimates and apportionment ; a commissioner of jurors ; a munici- pal civil service commission of three or more suitable persons. The charter provides a Board of Estimate and Ap- portionment, composed of the mayor, comptroller, presi- dent of the board of aldermen, and the presidents of the boroughs of Manhattan, Brooklyn, The Bronx, Queens and Richmond. Except as otherwise specifically pro- vided, every act of the Board of Estimate and Apportion- 85. Laws of N. Y., 1907, ch. 383. 1 McQ.— 48 754 MuNICIPAIi COEPOBATIONS. § 339 ment shall be by resolution, adopted by a majority of the whole number of votes authorized by law to be east by the board. The mayor, comptroller and the president of the board of aldermen shall each be entitled to cast three votes; the presidents of the boroughs of Manhat- tan and Brooklyn, each two votes, and the presidents of the boroughs of the Bronx,* Queens and Eichmond each one vote. The board is authorized to make a budget of the amounts estimated to be required to pay the annual expenses of conducting the public business of the city and the counties of New York, Kings, Queens and Rich- mond. The board of aldermen may diminish the amounts as fixed by the board, subject to the veto power of the mayor which may be overridden by a three-fourths vote of the board of aldermen except as otherwise provided by law and except as to items for payment of state taxes and interest on the city's debt. But the board of aldermen cannot increase the amounts or vary the conditions or insert new items. It is the duty of the Board of Estimate and Apportion- ment to provide for payment of tfie principal and interest of the city's obligations and exercise a general super- vision over the finances of the city. By amendment (1905) this board was given power to grant franchises.*' 86. Granting franchises. The or waters within and belonging Board of Estimates and Apportion- to the city whether on, under or ment shall hereafter, except in the over the surface thereof, for rail- cases where ■ franchises, rights, or roads, pipe or other conduits, or contracts shall be granted or au- ways or otherwise for the trans- thorized pursuant to the Rapid portation of persons or property Transit Act, ch. 4, Laws 1901, and or the transmission of gas, elec- amendments thereof, have the ex- tricity, steam, light, heat or power, elusive power in behalf of the city However, no such exercise of the to grant to persons or corporations Board of Estimates and Apportlon- franchises or rights to make con- ment shall be or operate until the tracts providing for or Involving same shall, in writing, be approved the occupation or use of any by the mayor separately from and streets, avenues, highways, boule- after the action of the board of vards, concourses, driveways, estimates. Laws of New York, bridges, tunnels, parks, parkways, 1905, ch. 629. waterways, docks, bulkheads. In Wilcox v. McQlellan, 185 N. wharves, piers, or public grounds Y. 916, affirming 110 N. Y. App. § 339 Gkeateb New Yobk Chabteb. 755 The legislative branch consists of one house styled "The Board of Aldermen of the City of New York." It is composed of seventy-three members, one from each of the aldermanic districts elected by such district for a term of two years at a salary of $2,000 per year, and a president elected on a general ticket for the same term as the mayor at a salary of $5,000 per year, who has all the rights and privileges of a member. The president of the Board of Aldermen performs the duties of mayor during the mayor's disability or absence from the city. The legislative powers are broad. The Board of Alder- men is invested with authority over the streets, alleys and public ways, power to acquire, construct and main- tain waterworks, to regulate the height of building and to create a special committee to enforce the laws and ordinances, and "to examine and report whether there are any unnecessary, inefficient, or unfit employees, any excess of salaries or compensation paid, and generally in respect of any and all matters which will conduce to the orderly and economical administration of the affairs of the city government or any department thereof." The power of the Board of Aldermen is al«o restricted. The charter limits the power of this body to makej amend or repeal ordinances relating to the health, police, park, fire and building departments, except so far as the legislative power respecting the health, park, fire and building departments shall be conferred upon said departments respectively, * * * and except that any modification of the existing rules, regulations, and ordi- nances affecting any of the departments, and all ordi- nances to be passed to govern any of the departments, must originate with the department concerned, and must Dlv., 378, 383, It was held there and the conditional restriction for was no constitutional restriction the purpose of a street railway, upon the power of the legislature and that the Act of 1905 Imposing to delegate to local authorities the upon the Board of Estimate and power to grant franchises for the Apportionment the duty of grant- use of the public streets, except Ing franchises Instead of the coun- ts to the use for railroad tracks ell as heretofore, was valid. 756 Municipal Corpokations. § 340 be adopted or rejected by the Board of Aldermen with- out amendment. And the charter prescribes that nothing therein shall be construed "to impair the power or control conferred upon the Board of Estimates and Apportion- ment with respect to the streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, docks, bulkheads, wharves, piers and all public grounds and waters within the city's limits. "«T The judicial department consists of municipal courts, boards of city magistrates and courts of special ses- sions. No franchise or right to use the streets shall be granted for a longer period than twenty-five years, except fran- chises to tunnel railroads, but the grantee is given the option, of renewal for a like period upon just revaluation, with a reversion to the city at the expiration of the term. Every grant of or relating to a franchise of any character to any person or corporation must, unless otherwise provided, be by ordinance of the Board of Aldermen or by resolution of the Board of Estimate and Appor- tionment, or a contract executed by or under authority of the latter board, provided that every such ordinance, resolution or contract shall be subject to the approval of the mayor, and no grant thereof by the Board of Aldermen shall be made except on terms approved by the Board of Estimate and Apportionment and upon the concurrence of three-fourths of the aldermen.®*" § 340. Commission plan — Galveston.*** The charter of Galveston, which was adopted in 1901, and amended in 1905, establishes a form of municipal government known as the commission plan, which fol- lows the organization of the District of Columbia which is controlled by commissioners appointed by the presi- 87. Laws of New York, 1905, 88. Charter 1901, Laws of New ch. 629, § 4; Laws of New York, York, 1905, ch. 629. 1908, ch. 376. 88a, Population 36,981—1910. § 340 Galveston Chabteb. 757 dent. The Galveston charter provides for a board of five members known as the "Board of Commissioners of the City of Galveston," which succeeded the mayor and council of the old system of government. One of the five members is elected as president of the board, who is also the chief executive officer of the city. By the amendments of 1905, the salaries of the com- missioners ^^ were fixed at $1,200 and that of the presi- dent at $2,000 a year'. By express legal provision this board of commissioners constitutes the municipal government of the city. Three commissioners are appointed by the governor of the state and two are elected by the voters of the city.*" All legislative authority of the city is vested in the commissioners, who are given the usual powers over the city streets, and public places; power to grant fran- chises; power to license, tax, and regulate businesses and occupations, and all necessary police powers to guard the safety, health and morals of the public. The board is required to appoint from among its mem- bers a "police and fire commissioner," "commissioner of streets and public iniprovements, " "waterworks and sewerage commissioner," and a "commissioner of finance and revenue," All local officers, such as treasurer, attorney, assessor and collector, recorder, chief of police, engineer, auditor, health physician, etc., are appointed by the board. The board has full control over all departments of the city with power of removal of officers for cause according to certain rules prescribed by the charter. The president of the board, as chief executive officer of the city, has power to summon into service as special police as many of the citizens as he may deem necessary for the enforcement of the laws and protection of prop- erty when. he has reason to fear that any serious out- 89. Special Laws of Te::as, the act, while Ex parte Lewis, 45 1905, p. 253. Tex. Crim. App. 1, declares it un- 90. Brown v. Galveston, 97 Tex. constitutional. These cases are ], sustains the constitutionality of considered In § 189 ante. 758 Municipal Coepoeations. § 341 break or violation of law and order of the city is about to occur. The board is empowered to provide for the fire pro- tection of the city; for a water supply, and is vested with all general and special powers to exercise on behalf of the city, usually given to cities of the size of Galves- ton.»i § 341. The Des Moines plan of city government.®^* After specifying the manner in which municipal corporations to which the legislative act is applicable may adopt the new plan of city government, and provid- ing that all state laws not in conflict or inconsistent with the act are retained and remain in full force and effect, and that all contracts, rights and liabilities remain the same as under the present form of local government, the Des Moines plan of city government contains these particular features : 1. Confers all power of the local government, — ^legis- lative, executive and administrative and judicial, — on a mayor and four councilmen who are nominated at a non-partisan primary and elected at large for a term of two years. (Penalties are prescribed for corrupt prac- tices, bribery of the voters, etc., in the conduct of the primaries and election.) In legislation the mayor has no power to veto any measure. Three members of the council constitute a quorum and an affirmative vote of three members is sufficient to adopt any motion, resolution or ordinance, or pass any measure, unless a greater num- ber is provided for in the act. 2. The executive and administrative powers are distributed into and among five departments, namely, department of (1) public affairs, (2) accounts and -fi- 91. See Special Laws of Tevas, of government for titles of not 1901, p. 104; Special Laws of more than 200,000- population. Texas, 1905, p. 253. Laws of Hlinols, 1909-1910, special The commission plan, § 92 session. ante. 91a. Population 86,368 — 1910. Provision for commission form § 341 Des Moines Chaetek, 759 ■ i nances, (3) public safety, (4) streets and public improve- ments, and (5) parks and public property. The mayor is the superintendent of the department of public affairs, and each of the four councilmen is made superintendent of such department as the council by majority vote shall designate. 3. The council by majority vote elects or appoints certain named officers and employees, and such others as may be provided for legally from time to time, and has power by majority vote to remove from office any officer or employee, except as the act otherwise provides. The council also has power to create or discontinue offices and employments, except as the act otherwise prescribes. 4. Compensation of the mayor and .councilmen is regulated according to population. The compensation of officers, assistants, clerks and employees is fixed by the council. 5. Eegular and special meetings of the council are prescribed. The mayor is the presiding officer. He is required to supervise all departments and report to the council for its action all matters requiring attention in any department. 6. Every ordinance, franchise and contract must be opened to public inspection for seven days before its final passage and does not go into force for ten days thereafter. All franchises to public service corporations must be submitted to the vote of the people for approval. 7. Forbids under penalty any officer or employee, elected or appointed, from being, either directly or indi- rectly, financially interested in any contract or work to which the city is a party or in which any public service corporation is interested; also, forbids any officer or employee from accepting any service or favor from any such service corporation. 8. Provides that if any city officer or employee attempts to influence any other city officer politically, or attempts to control or influence appointments, either directly or indirectly, he shall be subject to a fine or a jail term. 760 Municipal Coeporations. § 342 9. A merit system for mtmicipal service and employ- ment is prescribed. This is under the direction of a civil service commission composed of three members created by the council. 10. Complete publicity of municipal affairs is required. Each month a full statemeiit of all receipts and expendi- tures is to be published in the newspapers. Every year there is to be an examination of the books and accounts of the city. 11. The recall, initiative and protest and referendum are all secured to the electors of the city. 12. Prescribes how a city may if it desires after six years' trial of the new plan return to its former plan of local government.®* § 342. Proof of charter — ^judicial notice. As stated elsewhere,®^ courts judicially notice public acts creating municipal corporations,®* and, hence, mu- nicipal charters need not be pleaded specially.®'* Where cities adopt their own charters under constitu- tional pi'ovisions they become the organic laws of such cities and thereafter the courts are required by the 92. Adopted by Des Moines at a Ferryman v. Greenville, 51 Ala. special election held June 20, 1907. 507. See § 92 ante. Reorganization of a village as a Magazine articles on the Des city will be judicially noticed. Moines plan: Outlook, May 25, Billings v. Dunnaway, 54 Mo. App. 1907, Lyman Abbott; Outlook, Au- 1, 3. gust, 1907, Lyman Abbott; Na- 95. Duncan v. Lynchburg, 2 Va. tlonal, September, 1907, Sidney J. Dec. 700, 48 L. R. A. 331, 34 S. E. Dillon; Century, October, 1907, 964. Henry E. Sampson; Cosmopolitan, A village charter granted by the November, 1907, Frank Rinhart; legislature is a public act, though Overland, October, 1907, Sidney J. not declared to be such In the act Dillon. of which courts will take judicial- 93. § 154 ante. notice, and so need not be recited 94. Judicial notice will be taken In pleading. Winooski v. Gokey, of authority conferred by charter. 49 Vt. 282. § 343 Proof and Consteuction of Ohartees. 761 Constitution to take judicial notice of tliem."" But unless so provided by statute, courts other than those' of the particular naunicipality will not judicially notice ordi- nances or by-laws.*'^ Proof of the existence of a legal charter establishes the fact of due incorporation of the inhabitants and place, and, therefore, of political and corporate existence, which is considered in an earlier chapter."* It is a fundamental rule that the primary evidence of a special charter, granted by the legislature, or a constitutional municipal charter framed and adopted by the people of the place, is the original or an authenticated copy, or, under certain statutes, a printed copy published by authority.** Where such evidence is not obtainable, here as in other cases, secondary or parol evidence of the existence of the charter is admissible. The decisions respecting such evidence are given in a prior section.' § 343. Construction of charter. The existence and scope of the municipal powers are a matter of construction if claimed by virtue of legisla- tive grant or charter authority and the object will be to ascertain the legislative or charter intent, but if claimed as necessarily belonging to the corporation because designed to conduct the local civil government and regulate the internal affairs of the place the investigation will go beyond the terms of the charter or legislative grant and include a consideration of common-law powers or those incidental to such corporate existence which have been enforced and recognized by the law, apart from express charter or legislative grant.^ 96. Const. Mo. art. IX, §§ 17 99. 1 Dnion, Mun. Corp. (5th and 21; Walsh v. Mo. Pac. Ry. Ed.), § 232. Co., 102 Mo. 589, 15 S. W. 757; St. 1. § 156 ante. Louis V. Lang, 131 Mo. 420, 33 S. 2. Inherent or incidental mu- W. 54. niclpal powers are treated in chap- 97. Chaps. 24 and 25 post. ter 10 post. 9S. § 154 et seq., ante. 762 Municipal Cobpoeatiosts. § 343 ' In construing municipal charters this broad principle is usually adopted: Where the general provisions of a charter are followed by particular provisions, the general powers are liniited and restricted by the particular pro- visions.* The general rule has thus been stated: The charter of a corporation is the measure of its powers, and the enumeration of those powers implies the exclu- sion of all others.* Likewise,' if there is a fair, reasonable doubt concerning the existence of the power in the char- ter, it will be resolved against the corporation and the exercise of the power denied.^ Thus power conferred by charter to enact ordinances on specified subjects is to be construed strictly, and the exercise of such power must be confined within the general principles of the law applicable to such subjects.* As stated in Missouri, when the charter authorizes something to l3e done, and an ordinance undertakes to carry out such power, courts will lean to a construction of the ordinance which will uphold it; but such rule has no application where the question is as to the power granted in the charter to test the ordinance.'^ "While a strict construction should be applied to the grant of powers to municipalities and especially those which result in public burdens, yet if the power is clearly implied, it should not be impaired by a strict construc- tion. A strict construction must yet be a sensible con- struction and be based upon the entire context.* 3. Blankenship v. Sherman, 33 7. State v. Butler, 178 Mo. 272, Tex. Civ. App. 507, 76 S. W. 805, 311, 77 S. W. 560. 806. 8. Lachman v. Walker, 52 Pla. 4. Chicago V. Banker, 112 111. 297, 300, 42 So. 461; In re Ken- App. 94, 98. more, 59 N. Y. Misc. 388, 393, 110 5. State V. Butler, 178 Mo. 272, N. Y. S. 1008. 314, 77 S. W. 560; Meday v. Ru- Where cities of the first, second, therford, 65 N. J. L. 645, 48 Atl. third and fourth classes are each 529; Crittenden v. Booneville, 92 expressly empowered to do a speci- Miss. 217, 45 So. 723. flc thing, the omission to confer 6. St. Paul V. Briggs, 85 Minn, that power upon cities of the fifth 290, 88 N. W. 984. class manifests a legislative de- § 344 CoNSTBucTiON OF Chaetees. 763 § 344. Same subject. All provisions of the charter, bearing on the same sub- ject should be construed together, to learn the meaning and intent of the provision in question.* In a word, in arriving at this intention, the whole and every part of the instrument or enactment, must be taken and compared together. * ' The real intention when once accurately and indubitably ascertained, will prevail over the literal sense of the terms. When the words used are explicit, they are to govern, of course. If not, then recourse is had to the context, the occasion and necessity of the provision, the mischief felt, and the remedy in view." " In ascertaining the meaning of the pai;ticular provision not only should the instrument be considered as a whole but it is also sometimes important to look into the provis- ions of prior charters, if any, bearing on the subject, the policy of local laws respecting municipal corporations and the legislative history of the state. Certain rules or maxims of interpretation are invoked but only for the purpose of determining the true intent and meaning of the particular provision. termination to ■withhold the pow- never more applicable than when er. Arnold v. Stanford, 24 Ky. applied to the interpretation of a L. Rep. 626, 69 S. W. 726. statute." Brown's Legal Maxims The charter of a municipality (4th Ed.), pp. 419-420, approvingly Is the measure of its powers, and quoted In Chicago Dock Co. v the enumeration of certain powers Garrlty, 115 111. 155, 165, 3 N. E Implies the exclusion of all others. 448. Chicago V. Banker, 112 111. App. "In adjusting those general pro- 94. visions of the charter we are not 9. Kirkam v. Russell, 76 Va. called upon to construe them by 956, 967; Verdln v. St. Louis, 131 any rigid technical rules, but must Mo. 26, 33 S. W. 480, 36 S. W. 52; be governed by considerations of Young V. Kansas City, 27 Mo. App. reason and justice." Ruschenberg 101, 113; Holland v. Baltimore, 11 v. Southern Electric R. Co., 161 Md. 186. Mo. 70, 61 S. W. 626. "A statute, it has been said, is 10. District Township v. Du- to be so construed if possible, as buque, 7 Iowa 262, 275, per Wright, to give sense and meaning to C. J. every part, and the maxim was 764 Municipal Corpobations. § 344 It is a cardinal rule of construction that words must be interpreted in the sense in which they are ordinarily used and understood, unless some other interpretation is clearly indicated by the charter .^^ No rule of an oflScer of the local corporation can affect their interpireta- tion.^^ The municipal corporation cannot extend its pow- ers by unauthorized definitions of words in its charter.^* It is a well-recognized rule of law that the meaning of a word is or may be known by the accompanying words. There is also a further kindred rule that where several particulars are named, followed by a more generic term, it is considered, that the more generic term intends only other things ejusdem generis or of the like kind.^* A municipal corporation authorized by its charter to levy and collect a license tax on several kinds of business, trades and avocations enumerated, including "manufac- turing and other corporations or institutions," is not empowered to levy such tax on natural persons in the manufacturing business; the court holding that neither the rule ejusdem generis nor noscitur a sociis were appli- cable; that the words "other corporations or institu- tions ' ' did not comprehend any class of corporations that do not fall within the previous designation of "manu- facturing corporations ; ' ' and a license tax could only be levied "on corporate entities engaged in manufactur- ing." ^^ 11. state ex rel. v. Rusk, 55 Mo. 559; Commonweartli 7. De- Wls. 465, 476, 13 N. W. 452; Wild- jardln, 126 Mass. 46; Harlow v. ner v. Ferguson, 42 Minn. 112, 43 Tufts, 4 Cush. (Mass.) 448. N. W. 794, 18 Am. St. Rep. 495. Compare In re Swigert, 119 111. 12. Ritterskamp v. Stlfel, 59 83, 6 N. E. 469; Shirk v. People, Mo. App. 510; Kansas City v. Butt, 121 111. 61; Webber v: Chicago, 148 88 Mo. App. 237, 240. 111. 313, 36 N. E. 70; Foster v. 13. Brookfield v. Kitchen, 163 Blount, 18 Ala. 687; Bishop, Con- Mo. 546, 63 S. W. 825; Kansas tracts, § 4.09; Endllch, Interp. City V. Lorber, 64 Mo. App. 604. Stat, § 405. As to admissions of unconstitu- 15. Joplin v. Leckie, 78 Mo. tlonal provisions of charter, see App. 8, 12. 1 State ex rel. v. Smith, 150 Mo; The rule of ejusdem generis Is 75, 51 S. W. 713. not a ru''e of abrogation, and 14. St. Louis V. Laughlln, 49 should never be allowed to defeat § 345 • Amendment and Eepeal op Chabtebs. 765 It is elementary law that an invalid part of a charter or statute does not invalidate the whole act.^® Eules as to the construction of municipal powers are considered further in the chapter which follows." § 345. Legislature may amend and repeal municipal charters. As pointed out elsewhere,^ ^ charter of public corpora- tions are always subject to legislative amendment or alteration and repeal. ^^ In general, the only limitation of the legislative power in this respect exists in the or- ganic law of the particular state.^" If legislative action the real purpose of a charter pro- vision as that purpose is gathered from the whole instrument. Ex parte Smith, 231 Mo. Ill, 119, 132 S. W. 607. 16. Moreland v. Millen, 126 Mich. 381, 85 N. W. 882; People V. Hurlhut, 24 Mich. 44, 9 Am. Rep. 103; Brooks v. Fischer, 79 Cal. 173, 29 Am. & Eng. Corp. Cas. 9, 21 Pac. 652. 17. § 355 post. 18. §§ 165, 216. 19. Georgia. State v. Savannah, R. M. Charlt. (Ga.) 250; Dawson Compress & S. Co. v. Dawson, 107 Ga. 358, 33 S. W. 419. Illinois. Guild v. Chicago, 82 111. 472. Indiana. Warren v. Evansville, 106 Ind. 104, 5 N. E. 876; Wiley V. Bluffton, 111 Ind. 152, 12 N. E. 165; Sloan v. State, 8 Blackf. 361. loica. State v. dinger, 109 Iowa 669, 72 N. W. 441. Louisiana. Garrett v. Aby, 47 La. Ann. 618, 17 So. 238. Michigan. Smith v. Adrian, 1 Mich. 495, Yazoo City v. Lightoap, 82 Miss. 148, 33 So. 949. New York. People v. Morris, 13 Wend. (N. Y.) 325. TJnited States. Judson v. Platts- burg, 3 Dillon 181, 14 Fed. Cases No. 7,570. 20. Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Lilly v. Taylor, 88 N. C. 489. Legislature may amend a char- ter by changing the time of hold- ing municipal elections, if the constitution does not forbid. Wig- gins V. Lewiston, 8 Idaho 527, 69 Pac. 286. The New York Constitution de- claring that nothing therein con- tained "shall annul any charters to bodies politic and corporate made or granted by or under the king of Great Britain, prior to October 14, 1875," is not a re- straint upon the legislative power, for its oljject was simply to leave the charters referred to intact, as far as the operation of the Con- stitution itself was concerned. Demarest v. New York, 74 N. Y. 161. 766 Municipal Cokpoeations. §345 in these cases operates injuriously to the municipalities or to individuals, ordinarily the courts cannot interfere but the remedy is in the hands of the people through the ballot box.'^^ Legislative control of municipal corporations and its limitations is fully discussed in a prior chapter.^^ The adoption of a part of the general charter, by a city existing under a special charter is to place such city pro tanto under the general law and to that extent subject to further amendment by legislative action alone, to change the part so adopted.^* The Constitution of Oregon expressly deprives the legislature of all authority to enact, amend, or repeal any charter of a city or town, the legal voters of which have An act repealing a town charter and making it tlie duty of the sheriff of the county to enforce all ordinances theretofore estab- lished for the government of the town as the town marshal might hare done was held valid in North Carolina. Rose v. Hardie, 98 N. C. 44, 4 N. B. 41. Act abolishing the board of assistant aldermen, and declaring the board of aldermen the common council is a valid exercise of legis- lative authority. The effect of the provision was not only to abol- ish the board, but to abolish the oflRce of assistant aldermen. De- marest v. N. Y., 74 N. Y. 161. A legislative act provided that the amendment shall not take ef- fect unless the corporate authori- ties or the inhabitants of the city shall "by a majority vote of the legal' voters present and voting therein by ballot determine to adopt the same." The board of aldermen consisted of seven mem- bers. Six were present. Three voted in the affirmative and three refused to vote — held amendment was legally passed. Atty. Gen. v. Shepard, 62 N. H. 383, 13 Am. St. Rep. 576. 21. Cooley's Const. Lim. (6tli. Ed.), 230; St. Louis v. Allen, 13 Mo. 400. 22. Ch. IV. Amendment by local authori- ties. Sometimes the local author- ities are authorized to eubmit amendm^ents. Dobbin v. San An- tonio. 2 Posey Unrep. Cases (Texas) 708. Legislative act conferring power on a municipal corporation to amend its charter, does not give rower to pass an amendment au- thorizing the levy of a school tax. Nelson v. Homer, 48 La. Ann. 258, 19 So. 271. So such power does not author- ize the city to extend its privileges or alter the existing authority of the state or its inhabitants. Cook V. Dendinger, 38 La. Ann. 261. 23. Hay v. Barabpo, 127 Wis, 1, 105 N. W. 654, § 346 Eepeal or Change of Chaetee. 767 reserved to themselves the exercise of such power, except the right of repeal.** Constitutional and statutory provisions in some states require that the question of the adoption of a new charter for a municipal corporation shall be submitted to the voters of the municipality at an election to be held fpr that purpose upon proper notice.** An act of the legislature providing for the submission of a new municipal charter to the voters at an election to be held for that purpose is not unconstitutional as a delegation of legislative power to the people of the mu- nicipality.*^ The adoption of a new charter by a munici- pal corporation repeals by implication the original charter.*''^ § 346. Direct amendment of constitutional charters. Constitutional charters may be amended directly by the electors of the particular municipality under certain restrictions or by the legislature by general law.** The courts uniformly hold that the method of direct amendment prescribed by the Constitution is exclusive and constitutes the only method by which changes may be made directly by the electors.*® 24. Acme Dairy Co. v. Astoria, Cal. 263, 62 Pac. 509; St. Liouis 49 Ore. 520, 90 Pac. 153. v Dorr, 145 Mo. 466, 481, 41 S. W. 25. Rice v. Robson, 83 Kan. 252, 1094, 46 S. W.' 976, 68 Am. St. Rep. Ill Pac. 186; Cole v. Dorr, 80 575, 42 L. R. A. 686; Murnane v. Kan. 251, 101 Pac. 1016, 22 L. St. Louis, 123 Mo. 479, 27 S. W. R. A. (N. S.) 534; Haines v. For- 711- est Grove, 54 Ore. 443, 103 Pac. Amendment of constitutional 775; Eugene v. Willamette Valley charters. The legislature cannot Co., 52 Ore. 490, 97 Pac. 817. authorize an amendment In any „„ „ , , X, X -nr i.v /m other manner. Westport v. Kan- 26. Orriek V. Fort Worth (Tex. nno ivi 1..1 ic a w co ^. A ^nno^ i-n a w cjr? ^as City, 103 Mo. 141, 15 S. W. 68. Civ. App. 1908), 114 S. W. 677. „, , . , ^ 4.1, . „ "PI/. " I, rpjjg legislature may authorize a 27. People v. Oakland, 92 Cal. municipal corporation to extend 611, 28 Pac. 807; Crook v. People, j^g jjj^j^g gg ag to embrace another 106 111. 237; Boyd v. Chambers, 78 ^^y „,. ^own. Kansas City v. Ky. 140; State Board of Education gtegmiller, 151 Mo. 189, 52 S. W. V Aberdeen, 56 Miss. 518; Jeffer- ^^^ son V. Edwards, 37 Mo. App. 617. Compare State ex rel. v. Warner, 28. §.§ 216, 325 ante. " 4 Wash. 773, 31 Pac. 25; People 29. Blanhard v. Hartwell, 131 ex rel. v. Coronado, 100 Cal. 571, 768 Municipal Coepoeations. §346 In California, Missouri and Washington tlie proposed amendments are required to be submitted to the quali- fied voters by the legislative or law making authorities. In Minnesota the submission may be made by the board of freeholders on its own motion, or upon application and petition of five per cent of the legal voters, such board shall submit proposed amendments. In California, Minnesota and "Washington alterna- tive articles, propositions or sections may be presented to the choice of the voters and may be voted on sepa- rately without prejudice to other articles or sections of the charter or any amendment thereto.'" 35 Pac. 162; Donahue v. Graham, 61 Cal. 276; Thomason v. Ash- worth, 73 Cal. 73, 14 Pac. 615. By statute the people of towns and cities (except New Orleans) of Louisiana are given power to amend their municipal charters hy direct vote. Tax collector v. Den- dlnger, 38 La. Ann. 261. But in so doing a state law cannot be altered or superseded. IMd. Under the St. Louis charter, in the matter of correcting ward lim- its, which were originally estab- lished by the charter, the muni- cipal assembly is given exclusive power, which may be exercised ■by ordinance e«very five years. The charter has been thus amend- ed on four occasions by this body, and once where such authority was not exercised the general as- sembly made provision for estab- lishing new ward lines. Laws of Missouri, 1885, p. 72. By virtue of the power conferred upon the municipal assembly by § 32 of art. Ill, of the charter of St. Louis, relating to the transfer and distribution of the powers and duties, in part or in whole, of any office provided for in the charter, to another, or others, by a vote of three-fourths of the members of each house, the charter may be amended. In this way the duty Imposed upon the chief of fire de- partment by § 5 of art. XI, to in- spect all buildings in the course of construction,, and to cause to be carried into effect all ordinances relating thereto has been trans- ferred to the commissioner of public buildings. Municipal Code of St. Louis (1901), § 24. 30. State v. Denny, 4 Wash. 135, 29 Pac. 991, 16 L. R. A. 214. The proposed amendments to the charter consisted of several sections, all relating to the same subject. A description of the amendment on the ballots which required the voter to vote for or against the entire amendment was held not objectionable because of failure to submit in such form that each section of the amend- ment might be voted on sepa- rately. State V. Riplinger, 30 Wash. 281, 70 Pac. 748. §347 Amendment of Chartebs. 769 In Washington the amendments become a part of the charter if "ratified by a majority of the qualified voters voting thereon." ^^ Hence a majority vote of ;those voting upon the proposed amendments is all that is necessary for ratification. In that state it has been held that a charter section providing for ratification by a "majority of all lawful voters voting thereat," cannot be construed as meaning a majority of all the votes that may be cast at such election upon other measures or candidates.^^ § 347. Same subject. In California and Minnesota the amendments, to be binding, must be accepted by at least three-fifths of the qualified voters voting at the election at which they are submitted.^* 31. Constitution, Washington, art. XI. § 10. 32. State ex rel. v. Denny, 4 Wash. 135, 29 Pac. 991, 16 L. R. A. 214. See § 419 post. The Constitution of Washington requires publication of the pro- posed amendments for thirty days in two newspapers. Constitution, art. XI, « 10; Wade v. Tacoma, 4 Wash. 85, 29 Pac. 983. Vote required. In Missouri where certain amendments are submitted at a general election and receive more than three-fifths of all the votes cast on the ques- tion of their adoption, but less than three-fifths of all the votes cast on the same day for city oflB- cers, they are not adopted. The Missouri Constitution, art. IX, i 22, expressly requires that amend- ments shall be "accepted at a gen* eral or special election, by at least 1 McQ.— 49 three-fifths of the qualified voters voting thereat," and not by voters voting thereon. State ex rel. v. St. Louis, 73 Mo. 435, 437. This point is well settled in Missouri. State V. Winkelmeier, 35 Mo. 103; State ex rel. v. Sutterfield, 54 Mo. 391; State ex rel. v. Brassfield, 67 Mo. 331. The calculation is to be de- termined by the qualified voters voting at the election at which the amendments are submitted, and not by all the qualified voters of the city, whether voting or not. State ex rel. v. Mayor of St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 451. 33. Const. Cal. 1880, art. XI, § 8, as amended Nov. 8, 1892. May be submitted at a general or special election, held at least twenty days after the publication of the proposals for twenty days in a daily newspaper of general circulation of the particular city. 770 Municipal Corporations. § 347 In Missouri the amendments must be accepted by at least four-sevenths of the qualified electors voting, but in amending the charter of the city of St. Louis (framed under special constitutional provisions) the vote must be at least three-fifths.** A provision that the charter may be amended "after notice of said submission" relates to the submission of proposed amendmeilts, and not to the notice of election.*" A charter provision that proposed amendments might originate in either house of the city council, and if agreed upon they were to be published, etc., and thereafter should again be submitted to each house for passage, and after which they were to be submitted to the electors, was con- strued to mean in Washington that upon a second sub- mission to the council the amendments might be amended by either house and pass as amended, without further publication.*^ The Constitution of California and that provision of the Constitution of Missouri relating to the St. Louis scheme and charter only permit amendments "at inter- vals of not less than two years." ^'' The Supreme Court of California has held that this provision relates only to amendments made by and at the instance of the officers and electors of the city, and therefore does not inhibit amendments within two years under general laws.*® The Supreme Court of Washington has held that a city cannot extend its limits or change its boundaries by In Minnesota the amendments mitted at a general or special elec- must be published for at least tion. Art. IX, §§ 16 and 22. thirty days in three newspapers 35. Wade v. Taooma, i Wash. of general circulation. Consti- 85, 29 Pac. 983. tutional amendment. Laws of 36. State v. Denny, 4 Wash. Minn. 1897, pp. 507-509; Laws of 135, 29 Pac. 991, 16 L. R. A. 214. Minn. 1899, p. 462 et seq. Time of submission to council. 34. Constitution of Missouri, Pierce v. Spokane, ■ 7 Wash. 132, 1875, art. IX, §§ 16, 17, and 20. 34 Pac. 428. The Missouri Constitution pro- 37. Const. Cal., art. XI, § 8; vldes for publication of notice of Const. Mo. art. IX, § 22. amendments which may be sub- 38. People ex rel. v. Coronado, 100 Cal. 571, 35 Pac. 162. §348 Amendment of Chaeteks. 771 amendments to its charter. That the constitution only authorizes the city to frame a charter for its own govern- ment and that to allow extension of limits by charter amendment it would be necessary for the constitution to read in effect that the city may "frame a charter for its own government and the government of such addi- tional territory as it may choose to include within its limits." 8» Amendments of constitutional charters take effect from the date of their approval by the people, unless otherwise provided by, law.*" , § 348. Indirect or legislative amendment of constitu- tional charters. The legislature may, by proper legislation within its constitutional authority, amend municipal charters, in- cluding those adopted and framed by the people, under 39. State ex rel. v. Warner, i Wash. 773, 31 Pac. 25, distinguish- ing People ex rel. v. Oakland, 92 Cal. 611, 28 Pac 807, and declining to follow Westport v. Kansas City, 103 Mo. 141, 15 S. W. 68. Extending limits by charter amendment. Cities organized un- der the Missouri Constitution, art. IX, §§16 and 17, may extend their llmdts by amendment of charter by virtue of legislation granting such power. Kansas City V. Stegmlller, 151 Mo. 189, 52 S. W. 723. In California the legislature may provide for changing the city's boundaries excluding terri- tory therefrom notwithstanding the city has a constitutional char- ter. People ex rel. v. Coronado, 100 Cal. 571, 35 Pac. 162. 40. Kansas City v. Stegmiller, 151 Mo. 189, 52 S. W. 723. Irregularity. The failure of a city clerk to record amendments, adopted by a vote of the electors in the charter book, as required by law, does not affect the validity of the amendments but merely affects the manner of their proof. State ex rel. v. Doherty, 16 Wash. 382, 47 Pac. 958. Direction to a committee to re- vise and reprint a city charter and to submit by report the result of such labors gives authority only to take the steps preliminary to publication. Quint v. Merrill, 105 Wis. 406, 81 N. W. 664. Changing salaries of officers un- der a charter provision that "the common council in the month of January, 1891, and every four years thereafter, shall readjust and fix a new amount for all offi- cial salaries'' is not an amend- ment of the charter. Coyne v. Rennle, 97 Cal. 590, 32 Pac. 578. 772 Municipal Cobpoeations. ,§ 348 special organic provisions. As mentioned elsewhere, all such charters are subject to and controlled by the constitution and general laws of the state and must at all times be in harmony with th6m. Hence such charter provisions may be superseded by general state laws.*^ The state may legislate with reference to all things which concern the relation of the state to the locality, subject, however, to all express and implied consti- tutional limitations designed to produce uniformity in laws relating to municipal corporations of a class, and, to insure to them the right to control their own internal or municipal affairs, without unauthorized state inter- ference, as explained elsewhere in this work.*^ The rule has also been affirmed as stated in a prior chapter, that constitutional charters may be amended by general law where such legislation becomes necessary to give practical effect to provisions of the constitution, or, in other words, where it is the result of positive con- stitutional mandate. Thus provisions of a law, general throughout the state, regulating the mode of assessment of railroads for purposes of taxation for state and city, were held paramount to the terms of a constitutional charter provision relating to the same subject, notwith- standing the state law was enacted subsequent to the adoption of the charter.** 41. state ex rel. v. Carson, 6 "Legislation which Is necessary- Wash. 250, 33 Pac. 428; Thomason or appropriate to carry into effect V. Ashworth, 73 Cal. 73, 14 Pac. a positive command of the or- 615; Ex parte Ah You, 82 Cal. 339, ganic law, or is required or dl- 22 Pac. 929; Davies v. Los Ange- rectly contemplated by its terms, les, 86 Cal. 37, 24 Pac. 771; Staude cannot justly oe held to be either V. Board of Elections, 61 Cal. 313; special or local within the trub State ex rel. v. Field, 99 Mo. 352, intent and meaning of the Con- 12 S. W. 802; Westport v. Kansas stitutlon." Keneflck v. St. Louis, City, 103 Mo. 141. 127 Mo. 10, 29 S. W. 838, approv- 42. Ch. IV, Legislative Control, ingly quoted in opinion in rehear- etc. ing in Kansas City ex rel. v. Scar- 43. State ex rel. Ziegenheln v. ritt, 127 Mo. 642, 655, 29 S. W. 845, St. L. & S. F. R. R. Co., 117 Mo. 30 S. W. 111. ' 1. 22 S W. 910. § 349 Amendments of Chaktbes. 773 So, a legislative act is valid which regulates the regis- tration of voters and the conduct of elections in certain cities, passed in obedience to constitutional mandate.** When general laws supersede charter and ordinance provisions, and when they do not, is discussed and illus- trated by decisions elsewhere in this work.*^ § 349. Amendments forbidden by special or local laws. As stated elsewhere, many of the state constitutions forbid the enactments of local or special laws relating to cities and towns.** Where such provision exists it is not competent to amend charters by special acts ; " but the legislature may amend, or provide for the amendment, of municipal charters by general law, within constitu- tional restrictions.** An act applicable to all cities of a class empowering a city to change its limits and authorizing it to exercise the taxing power over territory not included in its original limits is a-change of its charter, and is therefore, 44. Bwlng V. Hotlitzelle, 8S ter are superseded by a general Mo. 65, reversing 15 Mo. App. 441; law which is inconsistent with State ex pel. v. Owsley, 122 Mo. charter proylsions. Banaz v. 68, 26 S. W. 659; State ex rel. v. Smith, 133 Cal. 102, 65 Pac. 309. Slover, 126 Mo. 652, 29 S. W. 718; 46. § 187 et seg., ante. State ex rel. v. Dolan, 93 Mo. 467, Under the direct terms of the 6 S. W. 366. Constitution of Wyoming, municl- Under the Constitution of Call- pal charters cannot be amended by fornia cities adopting their own local or special law. McGarvey charters are subject to or con- v. Swan, 17 Wyo. 120, 96 Pac. 697. trolled by such general laws as 47. Bx parte Pritz, 9 Iowa 30; the legislature may enact, other Wyandotte v. Wood, 5 Kan. 603; than those for the "incorporation, McCormick v. People, 139 111. 499, organization and classification" of 28 N. B. 1106; St. Louis v. Mur- clties and towns. There, a law nane, 123 Mo. 479, 27 S. W. 711; providing for an uniform system St. Louis v. Dorr, 145 Mo. 466, 41 of elections for elective city, etc., S. W. 1094, 46 S. W. 976, 68 Am. ofBcers, was held general and con- St. Rep. 575, 42 L. R. A. 686. stitutional. Staude v. Board of 48. McGregor v. Baylies, 19 Election Comrs., 61 Cal. 313. Iowa 43; Von Phul v. Hammer, 29 45. , Ch. 21 post. Iowa 222; McCormick v. People, Provisions of a municipal char- 139 111. 499, 28 N. E. 1106, 774 MuNICIPAIi COBPOKATIONS. § 349 in the opinion of the Supreme Court of Missouri, not a local or a special law.*^ So an act operating in all parts of the state at all time3 relating to annexation of territory to towns and cities is not special. In New Jersey the legislature may by special law annex a town to a city where such act does not regulate the internal affairs of either municipality.^" Where the legislature is forbidden from amending the charter of the city it cannot legalize an act of such city not authorized by the charter, for this would, in effect, constitute an amendment.*^ An act relating to the enforcement of a judgment against a city is not a charter amendment, and hence, is valid.«2 An act empowering a city under a special charter to amend its charter is valid.*^ So an act applicable to all cities under special charters,, although constituting amendments to such charters, is valid.^* Some courts have aflfirmed ^^ while others have denied that a charter of a municipal corporation, created and organized under special act, and continued in force by a revised constitution, or an amendment of the consti- tution, forbidding the creation of municipal corporations or amending or changing their charters by special or local laws, may be amended by special law so as to enlarge 49. Westport v. Kansas City, 53. Von Phul v. Hammer, 29 103 Mo. 141, 15 S. W. 68; Copeland Iowa 222. V. St. Joseph, 126 Mo. 417, 426, 29 54. State v. King, 37 Iowa 462; S. W. 281. Haskell v. Burlington, 30 Iowa 50. Miller v. Camden, 64 N. J. 232; Rutherford v. Heddens, 82 Li. 201, 44 Atl. 961; State v. Cam- Mo. 388; Rutherford v. Hamilton, den, 50 N. J. U 87, 11 Atl. 137, 97 Mo. 543, 11 S. W. 249; Kelly v. 17 Am. & Eng. Corp. Cas. 638. Meeks, 87 Mo. 396. 51. Independent School Dis- The Constitution does not in- trict V. Burlington, 60 Iowa 500, tend to repeal city charters al- 15 N. W. 295; Stange v. DubuQue, ready granted. Warren v. Henly, 62 Iowa 303, 17 N. W. 518. 31 Iowa 31. 52. Porter v. Thopson, 22 Iowa 55. Wiley v. BlufEton, 111 Ind. 391. 1B2, 12 N. E. 165. § 349 Amendments op Chaeteks. 775 the jurisdiction of the municipality territorially or other- wise.^® The subject of special laws is fully treated in chapter IV on legislative control, and referred to in chapter 3 relating to the creation and classification of municipal corporations, chapter 7, corporate boundaries and chap- ter 10, dealing with corporate powers, and also in other parts of this work. 56. Amendment by special law ture has no power by special act Is forbidden. In Wisconsin under to amend a special town or vll- §§31 and 32, art. IV of the Con- lage charter granted prior to 1871. stltution, as amended In 1871, The amendment sought to annex which forbids the legislature from certain territory. Smith v. Sher- enacting any special or private ry, 50 Wis. 210, 6 N. W. 561. laws for the Incorporation of Compare Atty. Gen. v. C. N. W. towns and villages or to amend Ry Co., 35 Wis. 425. the charter thereof, the leglsla- 776 Municipal Coepoeations. CHAPTEE 10. THE NATURE, CONSTRTJCTION AND EXERCISE OF GENERAL CORPORATE POWERS. 1. General consideeation. 2. Implied ob incidental poweesu 3. Execution of powebs. 4. PowEES or New England towns. 1. General consideeation. Sec. 350. Scope of charter 351. Usual powers. 352. General rule as to municipal powers stated. 353. Rules of construction. 354. Same subject — reasonable construction. Sec. 355. Effect of specific enumeration of powers illustrated in the enactment of ordinances. 356. Construction of power "to regulate." 2. Implied oe incidental powees. Sec. 357. General rule as to implied or incidental powers stated. 358. Implied powers are confined to municipal affairs. 359. Cannot engage in private business. 360. Implied power to enact ordi- nances. 361. Implied powers respecting offices and officers. 362. Implied powers as to police and sanitary regulations. 363. Appropriations as donations forbidden. Sec. 364. Appropriations for celebra- tions, entertainments, etc., void. 365. Bounties to soldiers. 366. Expenditures to obtain or oppose legislation. 367. Miscellaneous illustrations of implied powers. 368. Same subject. 369. Exercise of powers by virtue of usage or custom. 370. Same subject. § 350 General Cobpoeate Powees. 777 3. Execution op powebs. Sec. . Sec. 371. Method of exercise of powers. 380. Distinction between manda- 372. Same subject. tory and discretionary pow- 373. When ordinance necessary to ers. exercise power. 381. Same subject 374. Same subject — legislative or 382. Public powers cannot be sur- executlve powers. rendered or delegated. 375. Same subject — self-enforcing 383. Powers and duties Imposed charter provisions. upon particular depart- 376. Judiciary will not control the ments or officers cannot be exercise of discretionary • delegated. powers. 384. Legislative authority cannot 377. Same subject. be delegated. 378. Limitation of rule of non- 385. Same — illustrations. judicial Interference. 386. Same subject. 379. Same subject. 387. Ministerial duties may be delegated. 4. Powers of New England towns. Sec. Sec. 388. Powers of New England 389. Illustrative cases of powers towns. of New England towns. 1. GEITEEAL CONSIDERATION. § 350. Scope of charter. This chapter will treat only of the nature, construction and exercise of general powers of municipal corporations. Special or particular powers are separately treated in the chapters which follow. Those especially relating to contracts, public improvements, eminent domain, streets, sewers, taxation, general and special, local assessments, police powers pertaining to nuisances, sanitation, etc., the functions, powers and liabilities of particular offi- cers and departments, and the method of their exercise ; the method of exercising municipal powers by ordinances, resolutions and other corporate acts; actions by and against the municipal corporation on contracts, for negli- gence in general and negligence appertaining to the establishment and regulation of streets and public high- ways, sewers, drains, etc., and actions to enforce munici- pal police regulations, the financial powers and method 778 Municipal Coepobations. §351 of the exercise thereof, etc., are treated in different chap- ters, or considered in appropriate places throughout this work. § 351. Usual powers. When a particular place and the inhabitants thereof become a body politic and corporate, as we have seen, there is thereby constituted in contemplation of law a legal or artificial personality, and the usual powers con- ferred and recognized and which may be exercised as a municipal corporation are : to acquire a name and by that name shall have perpetual succession ; ^ to sue and be sued, plead and be impleaded, defend and be defended in all courts of law and equity and in all actions what- soever ; 2 power to adopt a common seal which may be altered at pleasure ; * authority to acquire property, real, personal and mixed, by any and all lawful means for 1. Ch. 5, corporate name ante. 2. Sue and be sued. The right of corporations to sue and the obligation to be sued in the Ro- man law is as old probably asi the Twelve Tables. Taylor Pri- vate Corp. (3rd Ed.), § 6. Under the Iowa statute civil townships are not corporations but merely legal subdivisions of a county for governmental pur- pose, and cannot sue or be sued. Township v. Munch, 52 Iowa 132, 2 N. W. 1047. County commissioners as such cannot maintain an action against those who may destroy bridges, etc. Gallia County v. Holcombe, 7 Ohio 232. In Illinois neither the super- visor nor the board of town audi- tors can lawfully authorize a suit in chancery to be brought in the corporate name of their town, or any other action except in the cases named in the statute which is the measure of their authority. Under the Illinois system of town- ship organization there Is no offi- cer or board representing the cor- porate authorities of the town. The electors only, represent it, and they. In doing so, must and do necessarily act through town meetings or town elections. There can therefore be no implied au- thority in the supervisor or town auditors to represent the town in its corporate capacity. Kankakee V. K. & Ind. R. E,, 115 111. 88, 90, 3 N. B. 741. It has been suggested that a county board of commissioners In Idaho is not a corporation, and has no authority to sue by its common name. Commissioners v. Mayhew, 5 Idaho 572, 51 Pac. 411. 4. Ch. 6, corporate seal. § 352 Gbneeal Cokpoeate Powers. 779 municipal purposes, ([within or without the corporate limits of the city of the state of ) and power to hold, use, manage and dispose of such property as the public interest may require (and, in the more recent charters, power, to acquire, own, lease, construct and operate public utilities) and authority to do any act, exer- cise any power and render any service which contributes to the general welfare.* The various statutes and charters differ in phrase,ology in enumerating the general powers of municipal corpora- tions, and many of them confer special or particular powers which are considered in appropriate parts of this work.® The Minnesota statute, after enumerating the general municipal powers provides that, incorporated cities "shall have the general powers possessed by municipal corporations, at common law. ' ' ^ The supreme court of Michigan early declared that the cities and towns af that state were municipal corporations * ' of common law origin, and having no less than common law franchises." * The law generally recognizes the common law origin of municipal corporations proper, and permits the exer- cise by them of certain incidental or implied powers in order to enable them to fulfill the purpose of their crea- tion in supplying local needs, comforts and conveniences. Such powers are considered in subsequent sections. § 352. General rule as to municipal powers stated. A municipal corporation may exercise, first, all powers granted in express terms, consistent with the Federal 5. See ch. 9, The Municipal Special powers in California, § Charter. 324 ante. See generally, Ball v. Texarkana 7. Laws of Minn. 1899, p. 51. Water Corp., Tex. Cly. App. The charter of Milwaukee con- (1910), 127 is. W. 1068. tains the same provision. But- G. General powers: 1 Bates' ler v. Milwaukee, 15 Wis. 493, Anno. Ohio Stat, § 1552; 2 R. S. 497. Mo. 1899, i§ 5263, 5489, 5751, 5894. 8. People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. 780 MuNIOIPAIi COEPOEATIONS. §352 Constitution and laws and the State Constitution and general laws of the state; second, certain implied or incidental powers, in like manner harmonious, (a) grow- ing out of those expressly granted, or (b) those which belong to it because it is a municipal corporation, or (c) those which are essential or reasonably proper, to give effect to powers expressly granted, or recognized, as per- taining to municipal existence,? 9. The general rule as to the powers possessed and which may be exercised, adopting Judge Dillon's statement (1 Dillon, Mun. Corp., 5th Ed., § 237), is thus given in a Virginia case: "First, powers granted in express words, second, those necessarily or fairly implied in or incident to the pow- ers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient but indis- pensable." Duncan v. Lynchburg (Va.), 34 S. B. 964, 48 L. R. A. 331. This statement is contained either literally or in substance in the following cases: Alabama. Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118; Bessemer v. Bessemer City Water Wks., 152 Ala. 391, 407, 44 So. 663; Cleveland School Pur. Co. v. Greenville, 146 Ala. 559, 41 So. 862; Gambill v. Brdrich Bros., 143 Ala. 506, 39 So. 297, 298; New Decatur v. Barry, 90 Ala. 432, 24 Am. St. Rep. 827. Alaska. Ketchikan Co. v. Citi- zens Co., 2 Alaska 120, 129; Con- radt v. Miller, 2 Alaska 433, 437; • In re Munro, 1 Alaska 279. California. Reis v. Graff, 51 Cal. 86; Galindo v. Walter, 8 Cal. App. 234, 96 Pac. 505; South Pasa- dena V. Pasadena Land & Water Co., 152 Cal. 579, 590, 93 Pac. 490; Piatt V. San Francisco, 158 Cal. 74, 110 Pac. 304; Areata v. Green, 156 Cal. 759, 106 Pac. 86; Cary v. Blodgett, 10 Cal. App. 463, 102 Pac. 668. Colorado. Brunstein v. People, 47 Colo. 10, 105 Pac. 857; Pueblo V. Stanton, 45 Colo. 523, 102 Pac. 512; Phillips v. Denver, 19 Colo. 179, 41 Am. St. Rep. 230. Connecticut. New London v. Brainard, 22 Conn. 552. Florida. State ex rel. v. Lewis, 55 Pla. 570, 46 So. 630; Porter v. VInzant, 49 Fla. 213, 216, 38 So. 607; Hardee v. Brown, 56 Fla. 377, 47 So. 834; State v. Tampa Water Works Co. (Fla. 1908), 47 So. 358. Illinois. Chicago v. Weber, 246 111. 304, 92 N. E. 859; Loeffler v. Chicago, 246 111. 43, 92 N. B. 586; Earlville v. Radley, 237 111. 242, 80 N. B. 624; Landberg v. Chicago, 237 111. 112, 86 N. B. 638; Huesing v. Rock Island, 128 111. 465, 21 N. E. 558; Cook County v. Mc- Crea, 93 111. 236. Indiana. Frank v. Decatur (Ind. 1910), 92 N. E. 173; Delphi V. Hamling, 172 Ind. 645, 89 N. E. 308; East Chicago Co. v. Bast Chicago, 171 Ind. 654, 87 N. E. 17; Richmond v. McGirr, 78 Ind. 192; §352 General Coepoeate Powbes. 781 As relates to the exercise of powers it is generally regarded that corporations have none of the elements of sovereignty; that they cannot go beyond the powers Elkhart v. Lipschitz, 164 Ind. 671, 673, 74 N. E. 528; Champer v. Greencastle, 138 Ind. 339, 46 Am. St. Rep. 390. Iowa. Bear v. Cedar Rapids (Iowa, 1910), 126 N. W. 324, 27 L. R. A. (N. S.) 1150; Brooks v. Brooklyn, 146 Iowa 136, 124 N. W. 868; Burroughs v. Cherokee, 134 Iowa 429, 109 N. W. 876; McAllen V. Hamblin, 129 Iowa 329, 330, 105 N. W. 593; Field v. Des Moines, 39 Iowa 575, 18 Am. Rep. 46; Henke v. McCord, 55 Iowa 378, 7 N. W. 623; Logan v. Pyne, '43 Iowa 524, 22 Am. Rep. 261. Louisiana. State v. Itzcovitch, 49 La. Ann. 366, 62 Am. St. Rep. 648; State v. Robertson, 45 La. Ann. 954, 40 Am. St. Rep. 272. Maine. Phillips v. Phillips Wai- ter Co., 104 Me. 103, 71 Atl. 474; Mayo T. Village Fire Co., 96 Me. 539, 551, 53 Atl. 62. Massachusetts. Lowell v. Bos- ton, 111 Mass. 454, 15 Am. Rep. 39, 62; Com. v. Stodder, 2 Cush. (Mass.) 562, 48 Am. Dec. 679; Spaulding v. Lowell, 23 Pick. (Mass.) 71, 74, 75, per Shaw C. J.; Williard v. Newhuryport, 12 Pick. (Mass.) 227; Stetson v. Kempton, 13 Mass. 272; Bangs v. Snow, 1 Mass. 181. Michigan. Wheeler v. Sault Ste. Marie (Mich., 1911), 129 N. W. 685, 17 Det. Leg. N. 1117; Atty. Gen. V. Detroit, 150 Mich. 310, 113 N. W. 1107, 14 Det. Leg. N. 643; Detroit, etc. Ry. Co. v. Detroit, 110 Mich. 384, 68 N. W. 304, 64 Am. St. Rep. 350. Mississippi. Hazlehurst v. May- er (Miss., 1910), 51 So. 890; Wise V. Yazoo City (Miss., 1910), 51 So. 453; Steltenroth v. Jackson, (Miss., 1911), 54 So. 955. Missouri. Nevada v. Eddy, 123 Mo. 546, 27 S. W. 471; State ex rel. V. Murphy, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, 35 S W. 1132; St. Louis v. Herthel, 88 Mo. 128; Kansas City v. Swope, 79 Mo. 446; Leach v. Cargill, 60 Mo. 316; Kiley v. Oppenheimer, 55 Mo. 374; State v. Clark, 54 Mo. 17; Knapp V. Kansas City, 48 Mo. App. 485; Joplin v. Leckie, 78 Mo. App. 8; Knox City v. Thomp- son, 19 Mo. App. 523; Kirkwood V. Meramec Highlands, 94 Mo. App. 637, 68 S. W. 761; Indepen- dence V. Cleveland, 167 Mo. 384, 67 S. W. 216; State v. Butler, 178 Mo. 272, 77 S. W. 560; Kirkwood V. Meramec Highlands Co., 94 Mo. App. 637, 644, 68 S. W. 761; State V. Wilson, 151 Mo. App. 719, 132 S. W. 625; State v. Berryman, 142 Mo. App. 373, 127 S. W. 129; Chillicothe v. Henry, 136 Mo. App. 468, 118 S. W. 486. Montana. Davenport v. Klein- schmidt, 6 Mont. 502, 13 Pac. 249, 16 Am. & Eng. Corp. Cas. 301; Palmer v. Helena, 40 Mont. 498, 107 Pac. 512; State v. Edwards,, 40 Mont. 287, 106 Pac. 695, 705. New York. Wakefield v. Brophy, 67 N. Y. Misc. 298, 122 N. Y. S. 632; New York v. Dry Dock, etc. R. R. Co., 133 N. Y. 104, 28 Am. St. Rep. 609; In re Kenmore, 59 N. Y. Misc. 388, 393, 110 N. Y. S. 1008. 782 Municipal Coepobations. §352 granted them, and that they must exercise such granted powers in a reasonable manner. These are legal proposi- New Jersey. Carrron v. Martin, 26 N. J. U 594, 69 Am. Dec. 584. North Carolina. Smith v. New- bern, 70 N. C. 14, 16 Am. Rep. 766; State v. Webber, 107 N. C. 962, 12 S. E. 598, 22 Am. St. Rep. 920. 'North Dakota. Stern v. Fargo, 18 m D. 289, 122 N. W. 403. Oklahoma. Ex parte Jones, 4 Okl. Cr. App. 74, 109 Pac. 570. Oregon. Corvallis v. Carlile, 10 Ore. 139, 45 Am. Rep. 134; Nay- lor V. MoColloch, 54 Ore. 305, 103 Pac. 68. Pennsylvania. Pennsylvania Co. V. Pittsburg, 226 Pa. St. 322, 75 Atl. 421; Warner v. Berke County, 38 Pa. Super. Ct. 437; Sharpless v. Mayor, 21 Pa. St. 147; 69 Am. Dec. 782-790. Texas. Ex parte Garza, 28 Tex. App. 381, 19 Am. St. Rep. 845; Wil- liams V. Davidson, 43 Tex. 1, 33; Brenham v. Brenham Water Co., 67 Tex. 542, 20 Am. & Eng. Corp. Cas. 207, 4 S. W. 143; Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Waters Pierce Oil Co. V. McElory (Tex. Civ. App. 1898), 47 S. W. 272; Ball v. Tex- arkana Water Corp. (Tex. Crim. App. 1910), 127 S. W. 1068; Man- tel V. State, 55 Tex. Cr. App. 456, 117 S. W. 855. Utah. Levy v. Salt Lake City, 3 Utah 63, 1 Pac. 160. Vermont. Swanton v. Highgate, 81 Vt. 152, 69 Atl. 667; St. Johns- bury v. Thompson, 59 Vt. 300, 305, 9 Atl. 571, 59 Am. Rep. 731. Virginia. Donable's Admr. v. Harrisonburg, 104 Va. 533, 535, 52 S.. B. 174; Winchester v. Red- mond, 93 Va. 711, 25 S. B. 1001, 57 Am. St. Rep. 822; Lynchburg & R. St. R. Co. V. Dameron, 95 Va. 545, 548, 28 S. E. 951; Kirkham v. Russell, 76 Va. 956; Danville v. Shelton, 76 Va. 325. West VirgirUa. Parkersburg Gas Co. V. Parkersburg, 30 W. Va. 435, 4 S. E. 650; Charleston v. Reed, 27 W. Va. 681, 55 Am. Rep. 336; Christie v. Maiden, 23 W. Va. 667; Clarksburg Electric Light Co. V. Clarksburg, 47 W. Va. 739, 50 L. R. A. 142, 149, 35 S. B. 994. VPashittgton. Farwell v. Seat- tle, 43 Wash. 141, 146, 86 Pac. 217. Wisconsin. Bell v. Platteville, 71 Wis. 139, 36 N. W. 831, 20 Am. & Eng. Corp. Cas. 177; Oilman v. Milwaukee, 61 Wis. 588, 592, 2;l N. W. 640; Flannagan v. Buxton, 145 Wis. 81, 129 N. W. 642. United States. Thomas v. Rich- mond, 12 Wall. 79 (U. S.) 349, 20 L. Ed. 453; Thompson v. Lee County, 3 Wall. (U. S.) 327, 18 L. Ed. 177; Detroit v. Detroit City Ry. Co., 56 Fed. 867; Freeport Water Co. v. Freeport, 180 U. S^ 587, 21 Sup. Ct. 493, 45 L. Ed. 679, affirming 186 111. 179, 57 N. E. 862; Danville Water Co. v. Dan- ville, 180 U. S. 619, affirming 186 111. 326, 57 N. E. 1129; United States V. McFarland, 28 App. Cas. (D. C.) 552.. See notes to Sharpless v. Mayor, 59 Am. Dep. 782-790, 21 Pa. St. 147; Lowell v. Boston, 15 Am. Rep. 56-62, 111 Mass. 454; Win- chester V. Redmond, 93 Va. 711, 25 S. E. 1001, 57 Am. St. Rep. 822; Detroit, etc. Ry. Co. v. Detroit, 64 Am. St. Rep. 350. §352 GrENBRAL COBPOBATE PoWEES. 783 tions that cannot be disputed.^" "A corporation being a mere creature of the law, possesses only those proper- ties which the charter confers upon it, either expressly or as incidental to its very existence." " 10. St. Louis V. Weber, 44 Mo. 547, per Bliss, J. Limited by grant of power. "The powers of all corporations are limited by the grants in their charters and cannot extend be- yond them." Petersburg v. Metz- ker, 21 111. 205, 206, per Breese, J. In referring to the powers of towns in Massachusetts, Parker, C. J., observed: "Their corporate powers depend upon legislative charter or grant, or upon pre- scription where they may have exercised the powers anciently without any particular act of in- corporation." Stetson V. Kemp- ton, 13 Mass, 272, 278, See §§ 388, 389 post. "A corporation being merely a political institution, it can have no other capacities than such as are necessary to car- ry into effect the purposes for which it was established." Kyd on Corp., 70. 11. Dartmouth College v. Wood- ward, 4 Wheat. 518, 578, 4 L. Ed. 629; Green's Brice's Ultra Vires, p. 28; Cooley's Const. Lim., p. 235. The powers of munlclpai corpo- rations variously stated by tiie courts. Powers are limited (1) to those expressly granted, or (2) those fairly implied from powers granted, or (3) those which are incidental thereto. Ft. Scott V. W. G. Eads Brokerage Co., 117 Fed. 51, 54 C. C. A. 437. Powers incident to the execu- tion of those granted are author- ized where they become essential to the purposes of the corporation. Mayo V. Dover and Foxcroft Vil- lage Fire Co., 96 Me. 539, 53 Atl. 62. "The difficulty of making spe- cific enumeration of all such powers as the legislature may in- tend to delegate to muhicipal cor- porations renders it necessary to confer some power in general terms." Porter v. Vinzant, 49 Pla. 213, 216, 38 So. 607; State v. Tampa Water Works Co., 56 Fla. 858, 47 So. 358, 19 L. R. A. (N. S.) 183. "The general powers usually given to municipal corporations are designed to confer other powers than those specifically enumerated." Porter v. Vinzant, 49 Fla. 213, 216, 38 So. 607. "It is not a constitutional right of the people to have all matters of local concern entrusted to municipal corporations. Within constitutional limits the people of the state, acting through the gen- eral legislature, may delegate to the municipalities such portion of political power as they may deem expedient, may withhold other powers and may withdraw any part of that which ^has been delegated." Van Cleve v. Sewer- age Comr's, 71 N. J. L. 185, 198, 58 Atl. 571. A municipal corporation can ex- ercise only such powers as are 784 MuNICIPAIi COEPOEATIONS. §352 Much difficulty arises in the application of the general doctrine relating to what powers may be exercised by municipal corporations, because of the miscellaneous granted by the state, and only in the manner prescribed. Elliott v. Monongahela City, 229 Pa. St. 618, 79 Atl. 144. A municipal corporation has only such power as is granted by its charter. 'Ex parte Farns- Worth, Tex. Crlm. App. (1911), 135 S. W. 538. The trustees of an incorporated town have only statutory powers. Campbell v. Brackett, Ind. App. (1910), 90 N. E. 777. Municipalities are created by the state for its bemeflt, and may be vested with such authority as the state sees fit, subject to the right of local self-government as guaranteed by the Constitution. Trent v. Randolph, Tex. Civ. App. (1910), 130 S. W. 737. The charter is the measure of the city's powers. Southwestern Telegraph, etc. Co. v. Dallas (Tex., 1911), 134 S. W. 321, reversing Tex. Civ. App. (1910), 131 S. W. 80. "It is a rule of great public util- ity, and courts should recognize and enforce It as a safeguard against the tendency of municipal- ities to embark in enterprises not germane to the objects for which they are incorporated. Even towns which, under our peculiar political history and policy, it was strongly urged in Webster v. Town of Harwinton, 32 Conn. 131. pos- sessed because of their independ- ent charter large original pow- ers, were held to have no original or inherent powers whatever, but only such as are either expressly granted by the legislative power of the state or are necessary to the performance of their duties as territorial and municipal corporations." Dailey v. New Haven, 60 Conn. 314, 320, 22 Atl. 945. If officers transcend the char- ter's powers their acts are neither binding on the corporation nor third persons. "The trustees of a town possess only such powers as are specific- ally conferred by the act of in- corporation, or are necessary to carry into effect the powers ex- pressly granted. They must keep within the limits prescribed by the charter. If they transcend the authority conferred thereby, their acts are not binding on the town or third persons. They have no power to give away the funds of the town, or appropriate them to purposes not warranted by the charter. They must faithfully ap- ply the corporate property to the uses and objects specified in the charter. As they cannot directly dispose of it by way of gratuity so they cannot accomplish the re- sult by device or indirection. They cannot under color of a sale transfer the property of the cor- poration without consideration, nor can they under pretense of satisfaction discharge a debt due the corporation without payment." Petersburg v. Mappin, 14 111. 193, 56 Am. Dec. 501. §352 Geneeal Coepoeate Powees. 785 and sametimes indefinite purposes for which these pub- lic corporations are constituted. The course of judicial decisions and policy of each state must ultimately deter- mine.^^ A municipal corporation may exercise all powers constitution- ally conferred on it by the legis- lature. Logansport v. Seybold, 59 Ind. 225. "It is sufficient if the power ex- ercised is conferred by necessary Implication." State v. Cederaski, 80 Conn. 478, 483, 69 Atl. 19. A municii>al corporation possess- es, by implication, (1) all the powers reasonably necessary to the proper exercise of the express powers granted it, and (2) those essential to the objects and pur- pose of its corporate existence. Schneider v. iSlenasha, 118 Wis. 298, 95 N. W. 94. "While the law permits munic- ipal corporations to do those things which are necessary to ac- complish the object of their cre>- ation, under an implication of power, the right has not usually been held to go so far as to per- mit them to engage in the manu- facture of articles necessary to their lawful enterprises where they are in common use and are to be had in the open market." Attorney General v. Detroit, 150 Mich. 310, 113 N. W. 1107, 14 Det. Leg. N. 643. Denying inherent legislative powers. People ex rel. v. Mitchell, 35 N. Y. 551, relying on Thomson V. Lee County, 3 Wall. (U. S.) 327. "Sovereignty resides only in the entire state. In the municipal or 1 McO.— 50 other local communities thereof, or in their magistracies, there is no such thing as an inherent and independent authority or right to govern, by which the communities themselves or any of the members thereof must be legally bound. Submission is due to the obliga- tions which such bodies undertake to impose only so far as the state, in the exercise of its sovereign powers for the general good, has delegated authority to create them." Mobile v. Moog, 53 Ala. 561, 564, 565, per Manning, J. "The powers vested in a corpo- rate body or chartered association of men, are for a public purpose, and consist, not in a restriction of powers before vested, but in a dele- gation of new and particular pow- ers which cannot be extended be- yond the letter of the act of incor- poration, unless the implication of some power beyond the letter be unavoidable, and necessarily fol- low the powers expressly given. And then the obvious aim and sense of the law cannot but be the very law; and we have the true construction in allowing such im- plied powers." Charleston v. State ex rel. Adger, 2 Speers (S. C.) 719, 729, per Richardson, J. 12. Spauldlng v. Lowell, 23 Pick. (Mass.) 71, 75; Wlllard v. New- buryport, 12 Pick. (Mass.) 227; Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118. 786 Municipal Coepoeations. §353 § 353. Rules of construction. The policy of the law is to require of municipal cor- porations a reasonably strict observance of their powers. Therefore, the courts incline to adopt a strict rather than a liberal construction, thus applying sub-_ stantially the same rule which is applied to charters of private corporations.^* As a general proposition, only such powers and rights can be exercised under grants of the legislature to cor- porations, whether public or private, as are clearly com- prehended within the terms of the act or derived there- from by necessary implication, regard being had to the objects of the grants." Any ambiguity or doubt arising out of the terms employed in the grant of power must be resolved against the corporation and in favor of the pub- lic.« 13. Cooley'B Const. Lim. 195; CorvalUs v. Carlile, 10 Ore. 139, 141, 45 Am. Rep. 134; State v. But- ler, 178 Mo. 272, 312, 77 S. W. 560. 14. Alaiama. Eufaula v. Mc- Nab, 67 Ala. 588, 42 Am. Rep. 118. Illinois. Agnew v. Brail, 124 111. 312, 16 N. B. 230; Cook Co. v. Mc- Crea, 93 111. 236. Iowa. Clark v. Davenport, 14 Iowa 494. Lowlsiana. Tax Collector v. Dendinger, 38 La. Ann. 261, 263. ' Massachusetts. Somerville v. Dickerman, 127 Mass. 272. Mississippi. Alabama, etc. R. Co. V. Turner (Miss., 1910), 52 So. 261; Hazlehurst v. Mayers (Miss., 1910), 51 So. 890. Missouri. State v. Clifford, 228 Mo. 194, 128 S. W. 755; Joplln v. Leckie, 78 Mo. App. 8, 12; Knapp V. Kansas City, 48 Mo. App. 485. Texas. Mantel v. State, 55 Tex. Cr. App. 456, 117 S. W. 855. Yirginia. Kirkham v. Russell, 76 Va. 956, 961; Winchester v. Redmond, 93 Va. 711, 714, 25 S. E. 1001. West Yirginia. Ricliards v. Clarksburg, 30 W. Va. 491, >4 S. E. 774; 20 Am. & Eng. Corp. Cas. 111. United States. Ft. Scott v. Eads Brokerage Co., 117 Fed. 51. 15. Illinois. Chicago v. M. & M. Hotel Co., 248 111. 264, 93 N. B. 753; Chicago v. Weber (111., 1910), 92 N. E. 859. Indiana. Elkhart v. Lipschitz, 164 Ind. 671, 673, 74 N. E. 528. Iowa. Logan v. Pyne, 43 Iowa 524, 22 Am. Rep. 261. Minnesota. St. Paul v. Laidler, 2 Minn. 190, 72 Am. Dec. 89. Missouri. State v. Butler, 178 Mo. 272, 313, 77 S. W. 560; State V. Berryman, 142 Mo. App. 373, 127 S. W. 129; State v. Wilson, 151 Mo. App. 719, 132 S. W. 625. §353 PowEKs Stbiotly Consteued. 787 Charters are special grants of power from the sover- eign authority, and ordinarily they must be strictly construed. Whatever is not given expressly, or as a necessary means to the execution of expressly given powers, is withheld.'^ Montana. State v. Edwards, 40 Mont. 287, 106 Pac. 695, 705. New Jersey. Meday v. Ruther- ford, 65 N. J. L. 645, 48 Atl. 529. New York. In re Kenmore, 59 N. Y. Misc. 388, 393, 110 N. Y. S. 1008. North Carolina. State v. Web- ber, 107 N. C. 962, 12 S. E. 598, 22 Am. St. Rep. 920. North Dakota.. Stern v. Fargo, 18 N. D. 289, 122 N. W. 403. United States. Minturn v. La- rue, 23 How. (64 U. S.) 435, 436. "To the extent of their author- ity they can bind the people and the property subject to their regu- lation and governmental control by what they do, but beyond their corporate powers their acts are of no effect." Per Waite, C. J., in speaking of power to Issue bonds. In Ottawa v. Carey, 108 U. S. 110, 121, 2 Sup Ct. 361, 27 L. Ed. 669. "If reasonable doubt exists as to a particular power of a munici- pality, it should be resolved against the city; but where the particular power is clearly con- ferred, or is fairly included in, or Inferable from other powers ex- pressly conferred, and is consist- ent with the purposes of the municipality and the powers ex- pressly conferred, the existence of the powers should be resolved in favor of the city, so as to enable it to perform its proper functions of government." State v. Tampa Water Works Co., 56 Pla. 858, 47 So. 358, 19 L. R. A. (N. S.) 183. 16. Strict construction adopted. Douglass V. Placerville, 18 Cal. 643, 647; State v. Smith, 67 Conn. 541, 52 Am. St. Rep. 301; Bear v. Cedar Rapids, la. (1910), 126 N. W. 324, 27 L. R. A. (N. S.) 1150; Heeney v. Sprague, 11 R. I. 456; Paris V. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459. "In determining on the extent of such power (to hold real estate in a particular instance, under a char- ter), we are to look at the grant and the restrictions; and, unless the power is found in the charter, it cannot be considered as pos- sessed. The very grant of specified powers, under restrictions, is an exclusion of other powers in refer- ence to the same subject matter, not granted by the charter." Bank of Michigan v. Niles, 1 Doug. (Mich.) 401, 404; People v. Utica Ins. Co., 15 Johns. (N. Y.) 357. "When there is any doubt as to whether or not a municipality has the power to do or not to do a particular thing, this doubt should be solved against its charter powers, unless it is plainly mani- fest that the power is confided to the municipality to act.'' Critten- den V. Booneville, 92 Miss. 217, 45 So. 723, 725. "The powers delegated to munic- ipalities by the legislature are in- tended to be exercised in con- 788 Municipal Corporations. >§ 354 "The corporation," as remarked by the supreme court of California in an early case, "owing its existence to the law, is precisely what the law makes it. * * * The general legislative power residing in the state gov- ernment may delegate to a municipal government some portion of its own powers; but these grants are held in subordination to the general power, and are not con- strued as taking from that government any other power or rights than those granted."" "It is only by such grants that the government power can surrender its just authority. Nor, as a general rule, can any evil ever arise from such construction, since the inhabitants of the corporation are not deprived of that protection which the state extends to her citizens in general. The power of the corporation is merely something added, as to the particular locality, to the gen- eral powers of government; or in other words, it is a special jurisdiction, created for specified purposes, and, like all such jurisdictions, it must be confined to the sub- jects specially enumerated."^* § Sec. 354. Same subject — reasonable construction. As it is a well-established principle that a municipal corporation may exercise such powers as are reasonably formity to, and consistemt with, in the same act. Chicago v. Gun- the general laws' of the state. ning System, 114 111. App. 377, * * * The charter powers of a 381, afBrmed 214 111. 628, 73 N. E. municipality are to be construed 1035. most strongly against a right 18. Leonard v. Canton, 35 Miss, claimed by it and not clearly given 189, 190, 191, per Fisher, J. by the statute." Crittenden v. Hitchcock, J., in Collins v. Booneville, 92 Miss. - 217, 45 So. Hatch, 18 Ohio 523, 51 Am. Dec. 723. ' 465, declares that should there be 17. Oakland v. Carpenter, 13 an error in construing municipal Cal. 540, 545, per Baldwin, J. powers it is better to err in re- Special power. Where a munic- stricting than in extending them. Ipal corporation has been given Parker v. Baker, 1 Clarke Ch. a certain power by specific pro- (N. Y.) 223, holding that nothing vision of the city and village act, can be taken by intendment unless such power cannot be added to by it obviously results from the grant general language found elsewhere as a necessary legal inference. § 354 Genekai, Coepoeate Powees. 789 proper to give effect to powers expressly granted, the doctrine stated in the last section does not confine the construction of the powers to the strict word and letter, but whatever is necessary and proper to carry into exe- cution the granted powers, or the powers recognized as belonging to the municipal corporation, has always been conceded by the strict consti'uctionists.^® The construc- tion should not be so strict and literal as to defeat the whole machinery of municipal regulation. The strict- ness, then, to be observed in, giving construction to mu- nicipal charters should be such as to carry into effect every power clearly intended to be conferred on the mu- nicipality, and every power necessarily implied ih order to a complete exercise of the powers granted.^" In speaking for the Supreme Court of Michigan, Cooley, J., observed: "There is a principle of law that municipal powers are to be strictly interpreted ; and it is a ."just and wise rule. Municipalities are to take nothing from the general sovereignty except what is ex- pressly granted. But when a power is conferred which in its exercise concerns only the municipality, and can wrong or injure no one, there is not the slightest reason for any strict or literal interpretation with a view of narrowing its construction. If the parties concerned have adopted a particular construction not manifestly 19. East Tenn. University v. private property, often wielded by Knoxvllle, 6 Baxt. (Tenn.) 166, the indiscreet or the selfish, the 171. grossest abuses would Inevitably 20. Smith v. Madison, 7 Ind. 86, follow, if they were not held strlet- 87. ly within the powers granted and Reasonable construction, the means prescribed for the exe- "Within the limits prescribed by cution of these powers." Kyle v. the charter or statute applicable Malin, 8 Ind. 34, 37. municipal corporations are to "All power is subject to abuse, be favored by the courts. Powers A demonstration of the evil conse- expressly granted, or necessarily quences to flow from the abuse of implied, are not to be defeated or a particular power does not dem- impaired by a stringent construe- onstrate the non-existence of that tion. * * Possessing, as these power." Slacli v. Maysville & L. R. municipal corporations do, the R. Co., 13 B. Mon. (Ky.) 1, 15. power of assessment and sale of 790 Municipal Cokpobations. ' % 354 erroneous, and which wrongs no one, and the state is in no manner concerned, the construction ought to stand. That is good sense, and it is the application of correct principles in municipal affairs." ''^ While a corporation can do no act for which authority is not expressly given, or may not be reasonably in- ferred, "if we were to say," t6 employ the language of the Connecticut court, "that they can do nothing for which a warrant could not be found in the language of their charters, we should deny them in some cases the power of self-preservation, as well as many of the means which are necessary to effect the essential object of in- corporation; and therefore it has long been an estab- lished principle in the law of corporations that they may exercise all the powers within the fair intent and pur- pose of their creation, which are reasonably proper to give effect to powers expressly granted. In doing this they must have a choice of means adapted to ends and are not to be confined to any one mode of operation." '^^ 21. Per Cooley, J., in Port Hu- general grant by intendment In- ron V. McCall, 46 Mich. 565, 574. eludes all powers that are fairly Gregory v. New York, 40 N. Y. within the terms of the grant, 273, concerning liberal construe- and are essential to the purposes tlon of powers of board of health, of the municipality,' and not in 22. Bridgeport v. Housatonuc conflict with the particular powers R. R. Co., 15 Conn. 475, 501. expressly conferred." State v. State ex rel. v. Walbridge, 119 Tampa Water-Works Co., 56 Fla. Mo. 383, 394, 24 S. W. 475, con- 858, 47 So. 358, 19 L. R. A. (N. tains similar expressions. S.) 183. Reasonable construction. Coch- "While a strict construction rane v. Prostburg, 81 Md. 54, 48 should be applied to the grant of Am. St. Rep. 479; Ex parte Garza, powers to municipalities and es- 28 Tex. App. 381, 10 Am. St. Rep. pecially those which result in pub- 845; Ex parte Gregory, 20 Tex. lie burdens, yet if the power Is App. 210, 54 Am. Rep. 516. clearly implied, it should not be "General powers given to a mu- impaired by a strict construction, nicipality should be interpreted A strict construction must yet be and construed with reference to a sensible construction and be the purposes of the incorporation, based upon the entire context." Where particular powers are ex- Laf-hman v. Walker, 52 Fla. 297, pressly conferred and there is also 300, 42 So. 461. a general grant of power, such General powers conferred on § 355 General Powers. 791 § 355. Effect of specific enumeration of powers illus- trated in the enactment of ordinances. When the state delegates to municipal corporations the powers of local self-government, it also delegates the power to pass all needful rules and regulations in the form of ordinances for this purpose.^^ Charters gen- erally contain specific enumerations of the subjects upon which the municipal corporation may legislate. This enumeration is usually followed by a general delegation of authority to pass all ordinances which may be neces- sary for the promotion of the police and sanitary affairs of the city, its good order, advancement of industry, commerce and general welfare of the locality, which shall be consistent with the constitution and general laws of the state and the local charter. This latter grant is gen- erally, though not always, considered to give authority to enact ordinances upon all other subjects within the scope of municipal jurisdiction which arc not mentioned in the specific enumeration. Of course, the passage of such ordinances must be reasonably necessary for the purpose of enabling the corporation to fulfil the objects of its creation. In other words, the detailed enumera- tion is not construed as denying the inherent power of the municipal corporation to make all proper or neces- sary ordinances respecting matters not specified, unless the intention to do so is clear. The limitation is that all such ordinances must be confined strictly to corpo- rate or municipal purposes,^* and be in harmony with municipal corporations are to be observance of statutory form. Ful- construed with reference to the lerton v. Des Moines (Iowa, 1908), purposes of the Incorporation. 115 N. W. 607, 612. "The general powers usually given 23. See § 357 et seq. post. to municipal corporations are de- 24. Without special authoriza- signed to confer other powers than tlon, municipal ordinances can- those specifically enumerated." not relate to state affairs. State Porter v. Vinzant, 49 Fla. 213, 216, v. Hayes, 61 N. H. 264, 314. 38 So. 607. The doctrine that municipal Where a statute vests a city powers should be confined to cor- with power to do a specified thing, porate affairs, and the distinction the validity of such action does between such and state matters is not always depend upon the strict considered in § 358 post. 792 Municipal Coepobations. §356 the charter, constitution, general laws and public policy of the state.^^ § 356. Construction of power "to regulate." Ordinarily the power "to regulate" will not be con- strued to include the power to prohibit.^" "A power 25. Compare the following cases ■with respect to particular facts. St. Louis V. Kalme, 180 Mo. 309, 79 S. Wj 140; State v. Ferguson, 33 N. H. 424, 430; Monroe v. Lawrence, 44 Kan. 607; State v. Webber, 107 N. C. 962, 12 S. E. 598; Collins v. Hatch, 18 Ohio 523, 51 Am. Dec. 465; State v. Freeman, 38 N. H. 426; Ireland v. Globe Milling, etc. Co., 19 R. I. 180, 32 Atl. 921; Clark V. South Bend, 85 Ind. 276, 44 Am. St. Rep. 13; Indianapolis v. Gas Co., 66 Ind. 396; McPherson v. Che- banse, 114 111. 46, 28 N. B. 454; Cairo v. Bross, 101 111. 475; Du- bois V. Augusta, Dudley (Ga.) Rep. 30; Williams v. Augusta, 4 Ga. 509, 514; Milwaukee v. Gross, 21 Wis. 243. Construction of power to enact ordinances iiiustrated. Power to enact is sometimes strictly con- strued. State V. Hammond, 40 Minn. 43; St. Paul v. Briggs, 85 Minn. 290, 88 N. W. 984; Huesing v. Rock Island, 128 111. 465, 476, 15 Am. St. Rep. 129. The power is confined to the things and objects specified in the charter. New Orleans v. Philippi, 9 La. Ann. 44; State v. Paterson, etc. R. R. Co., 45 N. J. L 310; State V. Zeigler, 32 N. J. L. 262; Brooklyn v. Furey, 9 Misc. Rep. (N. Y.) 193, 30 N. Y. S. 349; State V. La Crosse, 107 Wis. 654; Child V. Hudson Bay Co., 2 P. W. 207. Ordinances may be enacted on subjects not enumerated. Nash- ville V. Linck, 12 Lea (80 Tenn.) 499. Necessary powers not excluded by enumeration. Spaulding v. Lowell, 23 Pick. (Mass.) 71. Maxim expressio unius est ex- clusio alterius is sometimes ap- plied. Keokuk v. Scroggs, 39 Iowa 447; State t. Fay, 44 N. 3. L. 474; Telephone Co. v. Oshkosh, 62 Wis. 32. Trades not enumerated ex- cluded. New Hampton v. Conroy, 56 Iowa 498; Oskaloosa v. Tullis, 25 Iowa 440; Palaquemines v. Roth, 29 La. Ann. 261; Winants V. Bayonne, 44 N. J. L. 114. Manner of enforcement. Grand. Rapids V. Hughes, 15 Mich. 54. Ejusdem generis applied. Thom- as V. Hot Springs, 34 Ark. 553; Tuck V. Waldron, 31 Ark. 462; Snyder v. North Lawrence, 8 Kan. 82; St. Paul v. Traeger, 25 Minn. 248; St. Louis v. Laughlin, 49 Mo. 559. See §§ 353 and 354 ante and notes. 26. As power to regulate driv- ing horned cattle through street. McConville v. Jersey City, 39 N. J. L. 38. § 356 PowEE or, to Eegulate. 793 simply to regulate does not embrace a power to prohibit or destroy a trade or occupation." ^^ Therefore, ordi- nances to be valid cannot interfere with lawful employ- ment. The cases respecting nuisances fully illustrate this principle. Thus an ordinance was condemned which made it unlawful to work, or use for the burning of oyster shells or stone lime, any kiln within the city. The court held that the mere burning of lime was not unlaw- ful, since it was not a nuisance per se, irrespective of location, and hence, an ordinance could not so declare unless it be a nuisance in fact according to the common law or statutory definition.^^ However, the judicial decisions respecting the power of municipalities to abate nuisances under the general powers are not uniform. Thus an ordinance forbidding the establishment of additional cemeteries or burial grounds within the limits of the city was sustained in South Carolina. Here it was held that it was not neces- sary to the existence of the power to pass the ordinance that there be a present occasion for its existence, the court holding that it is sufficient if there is a future emergency which may demand it, and such question was solely for the municipal authorities.^* The construction of the power "to regulate" is treat- ed fully in the chapters on license and police regula- tions.*" 27. State v. Mott, 61 Md. 297, Erection of private hospital for- 309; Baltimore v. Radecke, 49 Md. bidden. Bilne v. Davidson, 5 Mar- 217. tin. La. (N. S.) 409, 16 Am. Dec. 28. State v. Mott, 61 Md. 297. 189. 29. Charleston v. Wentworth 30. Chapters 22 and 26 post. Street Baptist Church, 4 Strob. Law (S. C.) 306, 794 Municipal Coepoeations. § 357 I. implied OB INCIDENTAL POWEES. § 357. General rules as to implied or incidental powers stated. To repeat : The general rule of law applicable to the exercise of powers is that a municipal corporation can do no act for which authority is not expressly granted, or that may not he reasonably inferred or implied.^^ V And as stated elsewhere, this general doctrine should be kept in mind: In addition to .powers granted in ex- press terms, a municipal corporation possesses such implied or incidental powers as are indispensable to the declared object of the corporation, or essential for the accoinplishment of the purposes of its creation and con- tinued existence.^^ In a word, the familiar maxim that the grant of power takes with all the necessary incidents to make that graiit effectual, applies to municipal corpo- rations with respect to the powers and authority exer- cised by them.^^ 31. state ex rel. v. Indlanapo- N. T. Misc. 388, 393, 110 N. Y. lis Union R. Co., 160 Ind. 45, 58, S. 1008. 66 N. B. 163, 60 L. R. A. 831. Wisconsin. Schneider v. Mena- § 352 ante. s}ia, ng Wis. 298, 95 N. W. 94. 32. Dillon, Mun. Corp. (5th 33 ^^^^^^^^^ McFarlain v. Ed.), § 237. AlaB^. Conradt v. ^^^^^^^^^ 106 La. 541, 31 So. 62. Miller, 2 Alaska 433. California. South .'asadena v. Massachusetts. Page v. Weeks, Pasadena Land & Water Co., 152 '^ ^^^^- '^^^• Cal. 579, 93 Pac. 490; Galindo v. Michigan. DuUam v. Willson, Walter, 8 Cal. App. 234, 96 Pac. v. Huckins, 26 Mich. 476. 505; Hyatt v. Williams, 148 Cal. Missouri. Ex parte Marmaduke, 585, 587, 84 Pac. 41. 91 Mo. 228, 262, 4 S. W. 91; State Florida. State ex rel. v. Lewis, ex rel. v. M., K. & T. R. R. Co., 55 Pla. 570, 575, 46 So. 630. 164 Mo. 208, 64 S. W. 1801; Hill Indiana. Champer v. Greencas- v. St. Louis, 159 llo. 159, 60 S. tie, 138 Ind. 339, 342, 35 N. B. 14, W. 116; St. Charles v. Blsner, 24 L. R. A. 768, 46 Am. St. Rep. 155 Mo. 671, 56 S. W. 291; State 390. ex rel. v. Walbrldge, 119 Mo. 383, New York. In re Kenmore, 59 394, 24 S. W. 457. § 357 Implied Powers. 795 It thus follows that the city may do many things, by ordinance and otherwise, not in terms expressly author- ized by its charter or the general statutes of the state applicable. There are many implied powers which attach themselves to municipal corporations, inherent powers, which belong to them because they are munici- pal corporations, just as certain powers are inherent in courts and other public agencies because of the very na- ture and attributes of their organization.^* But this limitation is controlling: No powers can be implied ex- cept such as are essential to the objects and purposes of the corporation as created and established.^' In brief, the power must relate to some corporate purpose, some purpose which is germane to the general scope of the object for which the corporation was created, or such as has a legitimate connection with that object and a manifest relation thereto.^® "Implications of authority in bodies corporate, more especially those created for municipal purposes, should be clear and undoubted, and the party claiming through them should be able to point them out with certainty and precision. The fact that he cannot, is conclusive that they do not exist. Mere general arguments drawn from the convenience of possessing a power under certain circumstances in case of an emergency — conclusions that, if possessed, it might be beneficially exercised, are very dangerous sources of corporate authority. * * * Implications spring from the necessities of some power actually conferred, and not from notions of what would be convenient or expedient under particular circum- 34. Aurora Water Co. v. Au- 35. Ottawa v. Carey, 108 U. S rora, 129 Mo. 540, 576, 31 S. W. 110, 120, 2 Sup. Ct. 361, 27 L. Ed. 946. 669. May exercise powers incidental 36. Weightman v. Clark, 103 U. and essential. Mayo v. Dover and S. 256, 26 L. Ed. 392; People v. F. Village Fire Co., 96 Me. 539, Dupuyt, 71 111. 651; Harris v. LIV- ES Att. 62. Ingston, 28 Ala. 577; Marion v. Chandler, 6 Ala. 899. Municipal, Cobpobations. § 358 stances."^'' Therefore, where a municipal corporation undertakes that which does not necessarily appertain to the municipality, it must have express power to do so. This is a well established rule.^^ Generally, implied powers include all such as are necessary to carry out the objects of the corporation. This is a cardinal rule, applicable to all corporations. "That there may be a difference in even the implied powers of municipal corporations is possible. An im- plied power springs from necessity. That which may be necessary for a large city, may not be necessary for a small city, or borough. That which is not necessary cannot be implied. ' ' ^* § 358. Implied powers are confined to municipal affairs. Municipal powers are to be construed with reference to the object contemplated by the state in the grant of the charter, and the extent of the power it confers is to be measured and limited by the purposes for which the corporation was created. Bearing in mind that the mu- nicipal corporation is created primarily to regulate and administer the local and internal affairs of the place in- corporated, in contradistinction to those matters which ' are common to and concern the people of the state at large, it may be stated as a general proposition that, unless expressly authorized, the municipal corporation may only exercise such powers as pertain to the local and internal .affairs of the municipality. Every power 37. Per Dixon, C. J., in Butler 39. Williamsport v. Common- V. Milwaukee, 15 Wis. 493, 497, wealth, 90 Pa. St. 498. distinguishing Miller v. Milwau- A municipal corporation "is not kee, 14 Wis. 642. limited to the exercise of the pow- • Implied power to prescribe fire ers specifically granted, hut pos- Ilmits and prevent the erection of sesses, in addition, all such pow- wooden buildings therein. Bum- ers as are either necessarily In- gartner v. Hasty, 100 Ind. 575, 50 cident to those specified, or essen- Am. Rep. 830. tial to the purposes and objects of 38. Williamsport v. Common- its corporate existence." LeCou- wealth, 90 Pa. St. 498. teulx v. Buffalo, 33 N. Y. 333. 336. § 358 Implied Powers. 797 usually granted to municipal corporations points to an object local and domestic, purely municipal in character and such as is necessary to enable it to fulfil its munici- pal existence.*" Within this sphere much latitude may be allowed corporate authorities if in the exercise of the power no injury or harm is done. Where a general and indefinite power is added to those given in express words, such power is to be confined in its exercise to the ordi- nary objects and purposes of municipal corporations, and is hot to be construed to comprehend a matter which is common to the state and affects its people at large. The courts have experienced much difficulty in ascer- taining the precise limits. The point may be illustrated by a Virginia case. The municipal charter authorized the city "to do all such things as it may deem proper for the prosperity, quiet and good order of the city." The court, considering that this grant of power was intended to be confined to the ordinary purposes of municipal cor- porations, held that the power did not authorize the city to offer rewards for the detection, apprehension or con- 40. Skyes v. Columbus, 55 law with relation to lateral sup- Miss. 115, 138, 139. port, and an ordinance of such city Cannot regulate practice In which makes it the duty of a per- state courts where the city is an son making an excavation below ordinary litigant, by substituting a certain depth to preserve any the state code of procedure for contiguous legal wall or walls one of Its own. Badgley v. St. from injury, and protect them at Louis, 149 Mo. 122, 50 S. W. 817; his own cost, is Invalid because Noble V. Kansas City, 95 Mo. App. Inconsistent with the laws of the 167. state. Carpenter v. Reliance A rule of common law cannot Realty Co., 103 Mo. App. 480, 491, be changed by ordinance. Hence, 77 S. W. 1004. a clause of the charter of a city, Public work. The subject of giving the municipal assembly au- city contracts for public Improve- thority "to provide for the sale, ments, and bonds to secure per- construction, inspection and re- formance of them and the pay- pairs of all private and public ment of laborers and materialrnen, buildings within the city," does Is a proper one for municipal not authorize the legislative body legislation. Grant v. Berrisford, of such city to change the common 94 Minn. 45, 49, 101 N. W. 940. 798 MuNICIPAIi COEPOEATIONS. § 359 victidn of offenders against the criminal laws of the state, since this was a state matter.*^ The power of municipal corporations to exercise con- trol over subjects embraced in state statutes by legisla- tion or otherwise is considered elsewhere,*^ § 359. Cannot engage in private business. The object of the creation of a municipal corporation is, that it may perform certain public functions as a local organ, and, also, as a subordinate branch of the state government; and while it "is invested with full power to do everji;hing necessarily incident to a proper discharge thereof, no right to do more can ever be im- plied. In the aibsence of express legislative sanction, it has no authority to engage in any independent business enterprise or occupation such as is usually pursued by private individuals. Under authority to construct and maintain a waterworks system, it cannot engage gen- erally in the plumbing business. So a municipal corpo- ration cannot encourage the development of coal, natural gas and other resources of the locality by subscribing to the stock of companies .organized for such purpose.** 41. Winchester v. Redmond, 93 county purpose. Shelby Co. v. Va. 711, 25 S. E. 1001, 57 Am. St. Expo. Co., 96 Tenn. 653, 36 S. W. Rep. 822, 44 Central Law Journal, 694, where it is said that "the 57, and note. question must be decided upon the See ch. 11, § . particular facts of each case." 42. Chapter 23, Municipal Con- Question whether provision for trol of Offenses against State. education of children residing "Corporate" or "municipal" within a half mile of city limits, purpose. Building railroad near is corporate purpose, suggestcc, city when calculated to promote but not decided in Edmondsou v, interest of city, held corporate Board of Education of Memphis, purpose. McCallie v. Chattanooga, 108 Tenn. 557, 69 S. W. 274. 3 Head (Tenn.) 645. 43. Keen v. Waycross, 101 Ga. Appropriation to defray the ex- 588, 29 S. E. 42. penses of an exhibition of the re- 44. Vail v. Attica, 8 Kan. App. sources of the county at a point 668, 57 Pac. 137. outside the county limits, held See § 368 post. § 360 Implied Poweks, 799 § 360. Implied power to enact ordinances. If neither express nor implied power exists in the mu- nicipal corporation to deal with the snbjeet-matter, a by- law or ordinance relating thereto is clearly ultra vires the corporation.*** The right of a corporation to make by-laws for the regulation of its affairs appears to be as old as the Twelve Tables of the Roman Civil Law.*^ It has always been the law that municipal as well as pri- vate corporations possess the incidental or implied power to enact such by-laws in harmony with charter provisions and the general rules of law as will better en- able them to carry out the purposes of their creation.*^ It has been said that the mere creation of a corporation carries with it power to make by-laws which are reason- able and not contrary to general law.** The courts of England at an early day held that the mere creation of a corporation aggregate involved the power to pass by-laws and impose penalties for their violation, and that by-laws passed in pursuance of such implied authority must be reasonable, that is, related to the purposes of the corporation and not contrary to the laws of the land, including the common law.** The restrictions on the power of the corporation to pass by-laws is limited, of course, to the powers con- 45. Liability for arrest and Im- der, 2 Cush. (Mass.) 562, 575; prisonment under void ordinances. Napman v. People, 19 Mich. 352; McGraw v. Marion, 98 Ky. 673, 34 Barling v. West, 29 Wis. 307; Tay- S. W. 18, 47 L. R. A. 593. lor v. Pine Bluff, 34 Ark. 603. 46. Taylor on Corporation, § 7. 49. State v. Cederaski, 80 Conn. 47. Coal Float v. Jefferson, 112 478, 69 Atl. 19, citing 1 Bl. Com., Ind. 15, 13 N. E. 115; Chamber- ' ch. 18. lain V. Evansvllle, 77 Ind. 542; In England the power to pass Arnold's Mun. Corp. (5th Ed., by-laws exists by usage and cus- London), p. 47, note. torn. Lambertville v. Thornton, 48. Mobile V. Yuille, 3 Ala. 137, 1 Ld. Raym. 91; Arnold's Mun. 143, 36 Am. Dec. 441. Corp. (5th Ed., London), p. 47, Compare Commonwealth v. Stod- note. 800 Municipal Cobpoeations. §361 f erred by its charter, and to certain implied and in- cidental powers indicated in subsequent sections.^" § 361. Implied powers respecting offices and officers. It has been held that a municipal corporation can- not, without express authority, create an office and select an incumbent and clothe him with the power of a mu- nicipal officer,^! as the office of pound keeper.^^ But officers may be created to attend to municipal functions, although not specifically mentioned in the charter.^^ 50. Implied power to make by- laws. In Child V. Hudson Bay- Co., 2 P. Wm. 207, li, is declared that a corporation has an Implied power to make by-laws; "hut when the charter gives the corporation power to make hy-laws, they can only make them In such cases as they are enabled to do by the charter, for such power given by the charter implies a negative that they shall not make by-laws in other cases." Power to pass ordinance is lim- ited to cases and objects specified in the municipal charter. Judic- ial expressions exist to the effect that the power to pass ordinances is limited to the cases and objects specified in the charter. Iowa. Knoxville v-. Chicago, etc. R. R. Co., 83 Iowa 636, 32 Am. St. Rep. 321. Louisiana. New Orleans v. Phil- ippi, 9 La. Ann. 44. Maryland. Schultz v. State, 112 Md. 211, 76 Atl. 592; Baltimore v. Porter, 18 Md. S84, 79 Am. Dec. 686. ' Minnesota. State v. Hammond, 40 Minn. 43. Missouri. State v. Clifford, 228 Mo. 194, 128 S. W. 755; Trenton V. Clayton, 50 Mo. App. 535. Neiraska. Littlefield v. State, 42 Neb. 223, 47 Am. St. Rep. 697. New Jersey. State v. Zeigler, 32 N. J. L. 262. New York. Brooklyn v. Furey, 9 Misc. Rep. (N. Y.) 193, 30 N. T. S. 349; Thompson v. Schermer- horn, 6 N. Y. 92,. 9 Barb. (N. Y.) . 152. Oregon. Corvallis v. Carlile, 10 Ore. 139, 45 Am. Rep. 134. Pennsylvania. Southwark v. Neil, 3 Yeates (Pa.) 54. South Carolina. Sumter v. Des- champs, 4 S. C. 297. Texas. Wright v. Victoria, 4 Tex. 375. Wisconsin. Flannagan v. Bux- ton, 145 Wis. 81, citing McQuillin, Mun. Ord., § 53 et seq. Implied power to pass. May pass ordinance on subjects not enumerated. Nashville v. Linck, 80 Tenn. (12 Lea ) 499. Grant to pass ordinances is in addition to incidental power to make by-laws. Cross v. Morris- town, 33 N. J. L. 57. See § 355 ante. 51. Hoboken v. Harrison, 30 N. J. L. 73. 52. White v. Tallman, 26 N. J. L. 67. 53. Collopy V. Cloherty, 95 Ky. 330, 25 S. W. 497. § 361 Implied Powers. 801 This power may be implied. Thus, where the city is given charge of streets, the office of street commissioner may be created.** So, under the power to preserve the health, a board of health may be created by ordinance.^' So, a charter providing that it shall be the duty of the city clerk, "in person or by deputy," to attend all meet- ings of the council, gives implied power to create the office of deputy clerk.^® But the power to grant, hold, lease, and dispose of property has been held not to authorize the creation of the office of fund' commissioner as a department of the city government.^^ So it has been held that express power is necessary to authorize the creation of new bureaus in city departments.^* A general provision that the aldermen shall have power to fix the compensation of "all officers" of the corporation, does not confer implied or incidental power upon the board of aldermen to provide by ordinance salaries for themselves.^® At common law it is an established principle in Eng- land that a municipal corporation may, by virtue of its inherent or incidental power, pass a by-law imposing a penalty upon such as refuse, without legal cause, an office to which they have been duly elected.^" Judge Dillon intimates that, even in this country, under the usual general welfare clause, or under their incidental powers, municipal corporations may, by ordinance, im- 54. State ex rel. v. May, 106 zation and adoption of new char- Mo. 488, 17 S. W. 660. ter in partidular case. Lowrey v. 55. Boehm v. Baltimore, 61 Md. Lexington, 24 Ky. L, Rep. 516, 68 259. S W. 1109. Authority to establish is some- 57. Smith v. Morse, 2 Cal. 524. times authorized by law. Quinn 58. People v. New Yorli Fire V. Cumberland County, 162 Pa. St. Comrs., 23 Hun (N. Y.) 317. 55, 29Atl. 289. ' 59. State (Gregory) v. Jersey 56. Lowrey v. Lexington, 24 City, 34 N. J. L. 429. Ky. L. Rep. 516, 68 S. W. 1109. 60. Willcock, Mun. Corp., 305, Right to create, under reorganl- 588. 1 McQ.— 51 802 MuNICIPAli COBPOKATIONS. § 362 pose a reasonable fine because of a similar refusal.^^ A municipal corporation has a right to the services of any of its members, and may enforce such service by suitable ordinance.®^ It was a common law incident of all corporations to remove a corporate officer from office for reasonable and just cause.^^ This subject is^more fully considered in the chapter relating to Offices and Officers.®* § 362. Implied powers as to police and sanitary regula- tions. The preservation of the public health is a legitimate corporate purpose, and to this end a municipal corpora- tion may establish and maintain a supply of wholesome water from within or without the city ; also public parks, hospitals and pest houses.®* So it has been held that a city may enact and enforce police ordinances without special authorization as a result of the fact of its being incorporated.®® Ordinances relating to municipal police regulations and the local police power in all its phases are fully treated in a subsequent chapter.®'^ 61. 1 Dillon, Mun. Corp. (4th Hospitals and pest houses. Rae Ed.), § 223, approved in Aurora v. Flint, 51 Mich. 526, 16 N. W. Water Co. v. Aurora, 129 Mo. 540, 887; McPherson v. Nichols, 48 576, 31 S. W. 946. Kan. 430, 29 Pac. 679; Vionet v. 62. State (Gregory) v. Jersey First Municipality, 4 La. Ann. 42; City, 34 N. J. L. 429, 431, citing Newcastle-upon-Tyne v. Attorney- Willcock, Mun. Corp., 71; Angell General, 12 CI. and P. 402. & Ames on Corp., 352. Without express legislative au- 63. State ex rel. v. Walbridge, thority a municipal corporation 119 Mo. 383, 24 S. W. 457; St. cannot legalize a common nui- Louis V. Schoenbusch, 95 Mo. 618, sance. State v. Luce, 9 Houst. 8 S. W. 791. (Del.) 396, 32 Atl. 1076. 64. Ch. 12 post. 66. Sayre Borough v. Phillips, 65. East Tennessee University 148 Pa. 482, 24 Atl. 76, 33 Aili. St. v. Knoxville, 6 Baxt. (Tenn.) 166, Rep. 842. 173. 67. Chapter 22 post- §363 Implied Powees. 803 § 363. Appropriations as donations forbidden. Unless expressly authorized by charter or statute, a municipal corporation cannot appropriate or give away the public money as pure donations to any person, cor- poration or private institution, not under the control of the city and having no connection with it."* Thus, ap- propriations for national guards in the absence of ex- press power are unauthorized.®® So a vote for money for the purchase of uniforms for an artillery company is void, 68. Petersburg v. Mappln, 14 111. 193, 56 Am. Dec. 501; Strock V. East Orange, 77 N. J. L. 382, 72 Atl. 34; Campbell v. Tp. of Elma, 13 Up. Can. Com. Pleas 296; Jones V. Port Arthur, 16 Ontario Rep. 474; Jarvis v. Fleming, 27 Ontario Rep. 309; Re Schachart and County of Frontenac, 41 Up. Can. Q. B. 175. Appropriations as donations are forbidden. "Tliey (council) have no power to squander or give away the funds or property of the incorporation, but all property within their control, belonging to the corporation, must be honestly applied to the uses and purposes specified In the act of incorpora- tion. The city council have no power to sell, or in any manner dispose of the property of the cor- poration without consideration." Per Craig, J., In Agnew v. Brail, 124 111. 312, 16 N. E. 230, 20 Am. & Eng. Corp. Cas. 134. A municipal corporation cannot vote to pay a sum of money to one damaged while in the employ of the corporation on account of his needy circumstances, though it may vote a sum in settlement of 8uch claim, based on a legal lia- bility. Matthews v. Westborough, 134 Mass. 555, 562, 2 Am. and Eng. Corp. Cas. 239. Compare McGin- ness V. New York, 26 Hun (N. Y.) 142. In speaking for the supreme court of Missouri, construing the charter of the City of St. Louis, Wagner, J., in Hitchcock v. St. Louis, 49 Mo. 484, 488, observed that the members of the municipal assembly "in the discharge of their duties, do not act for them- selves, but for the public. They are trustees clothed with a trust, not for the corporation as such, but the citizens and the public who have confided the authority to them. The charter is the power of attorney which defines and lim- its the objects and powers with which they are intrusted. The diversion of the money of the taxpayers for any purpose other than that which is expressed in the charter is a perversion of the trust and an excess of authority. That there is no express power in the charter conferring authority to make donations, gifts or gra- tuities is too clear to require argu- ment." 69. Knapp v. Kansas City, 48 Mo. App. 485. 804 Municipal Coepobations. § 364 without charter or statute authority^" So a municipal corporation cannot use its funds for the erection of a building for the use of the Gr. A. E. ;''^ nor for the en- couragement of the establishment and operation of pri- vate manufacturing plants within its limits f^ nor to re- imburse a defeated candidate for office for expenses in- curred in contesting an election ;''* nor give its funds to a charitable institution^* Where the Constitution prohibits the legislature from making or authorizing the gift of the public moneys to any person, a statute creating an exempt firemen's re- lief fund in the several counties of the state, for the benefit of exempt firemen residing therein, is unconstitu- tionalJ'* So a statute requiring a municipal corporation to re- tire its policemen after twenty years' service on a pension, is unconstitutional, as a grant of public money in aid of, or to, an individual.*' § 364. Appropriations for celebrations, entertainments, etc., void. Without express authority, a municipal corporation piay not appropriate the public revenue for celebrations, 70. Claflin v. Hopkinton, 4 Gray 75. Taylor v. Mott, 123 Cal. 497, (Mass.) 502. 56 Pac. 256. 71. Kingman v. Brockton, 153 80. State ex rel. v. Zlegenheln, Mass. 255, 26 N. E. 998, 11 L. R. 144 Mo. 283, 45 S. W. 1099, 66 Am. A. 123. St. 420. 72. Sutherland-Innes Co. v. Estoppel not applicable. The Evart, 86 Fed. 597, 30 C. C. A. Constitution forbids municipal cor- 305. poratlons from making donations 73. Sucli is not , a public pur- to private corporations. For twen- pose. Castner v. Minneapolis, 92 ty years after it went Into force Minn. 84, 99 N. W. 361. a city continued to make annual 74. Orr v. New Orleans, 50 La. payments to an inebriate asylum. Ann. 880, 24 So. 666. Here it was held that this did not A municipal corporation may estop it from resisting further pay- appropriate money in aid of a col- ments as unconstitutional. Wash- lege located outside of, but ad- ingtonlan Home v. Chicago, 157 joining the corporate limits. East 111. 414, 41 N. E. 893, 29 L. R. A. Tennessee University v.. Knojfvllle. 798. 6 Baxt. (Tenn.) 166. ^364 Scope of Appeopeiations. 805 entertainments, etc. Such power cannot be implied.'^ In Massachusetts it was early held that a town cannot appropriate money for a Fourth of July celebration. The court declined to support the authority on the ground of uniform practice and usage.^^ A like ruling was made in Connecticut ®* and North Carolina.** Mu- nicipal appropriations for other celebrations have, for like reason, been declared illegal, as, for example, the anniversary of the surrender of Cornwallis.*^ So mu- nicipal expenditures for entertainments of ofi&cial visitors;^® or to provide a ball and banquet have been declared illegal.®^ By statute, towns in Massachusetts are authorized to appropriate money "for the purpose of celebrating any centennial anniversary of its incorporation. " ** So in that state cities may appropriate limited sums for 81. Hodges V. Buffalo, 2 Denio (N. Y.) 110; Conl. v. Gingrich, 21 Pa. Super. Ct. 286, dlstinguisliing Com. V. Pittsburg, 183 Pa. St. 202, 38 Atl. 628; Cumberland Co. • V. Poor Directors, 7 Pa. Super. Ct. 614; McKean County v. Young, 11 Pa. Super. Ct. 481; Black v. De- troit, 119 Mich. 571, 78 N. W. 660, citing Gregory v. Bridgeport, 41 Conn. 76, 19 Am. Rep. 485; Marth V. Kingfisher, 22 Okla. 602, 98 Pac. 436, 18 L. R. A. (U. S.) 1238. 82. Hood V. Lynn, 1 Allen (83 Mass.) 103; Gerry v. Stone- ham, 1 Allen (83 Mass.) 319. 83. New London v. Brainard, 22 Conn. 552. 84. Love V. Raleigh, 116 N. C. 296, 28 L. R. A. 192, 21 S. E. 503. 85. Tash v. Adams, 10 Cush. (64 Mass.) 252. , 86. Law V. People, 87 111. 385; Black V. Detroit, 119 Mich. 571, 78 N. W. 660; Stein v. Cincinnati, 6 Ohio N, P, 15, 7 Ohio S. & C. PI. Dec. 45; Gamble v. Watkins, 7 Hun (N. Y.) 448. But see contra, Tatham v. Phila- delphia, 11 Phil. (Pa.) 276, 2 Weekly N. C. (Pa.) 564. See In re Village of Kenmore, 110 N. Y. S. 1008, 1016, 69 Misc. Rep. 388, 398. 87. Austin v. Coggeshall, 12 R. I. 329, 34 Am. Rep. 648, where the charter recites: "Nothing In this charter shall be construed * * • as giving the power to vote money for any ordinary object except for the regular, ordinary and usual ex- penses of the city." Greenough v. Wakefield, 127 Mass. 275; Hale v. People, 87 111. 72; Cornell v. Guil- ford, 1 Denio (N. Y.) 510. 88. In such case the town may date its incorporation from the time of its incorporation as a dis- trict. Hill V. East Hampton Se- lectmen, 140 Mass. 381, 4 N. E. 811, 13 Am. and Eng. Corp. Gas. 644, 806 Municipal Coepoeation'S. § 365 armories, for the celebration of holidays, ' ' and for other public purposes." Under such statute a city may fur- nish raoney for public concerts by a band.®' Other municipal charters expressly authorize appro- priations to commemorate events of public interest, the entertainment of guests and like purposes.®" But such power does jiot authorize the appropriation of money to defray the expenses of a committee appointed to attend a convention of American municipalities where subjects pertaining to the administration of cities are to be dis- cussed.®^ § 365. Bounties to soldiers. In the absence of legislative authority, a municipal cor- poration has no power to appropriate money for arratui- ties, or to raise money by taxation, to give additional wages to the militia, or to men drafted for the military or naval service of the United States or for other pur- poses of defense, even in time of war and danger of hos- tile invasion.®^ But that the legislature may confer 89. Hubbard v. Taunton, 140 v. Orange County, 13 N. Y. Misc. Mass. 467, 5 N. E. 157. 707, 35 N. Y. g. 167; Crowell The statute permits the appro- v. Hopklnton, 45 N. H. 9, 12, prlation on a two-thirds vote of 'where it is said that "it forms no the council, but the mayor or Part of the ordinary duties of other municipal officers have no towns to encourage the enlistment power to contract, etc. Morrison "^ soldiers by bounty or other- V. Lawrence, 98 Mass. 219, 221. wise." Fiske v. Hazard, 7 R. I. 90. Morton v. Philadelphia, 4 ^l^' ^^^^^""^ ^- Kempton, 13 Mass. Pa. Dist. 523; Tatham v. Pbila- ^"^^^ ''. ^^- ^^'^- ^*^- delphia, 11 Phila. (Pa.) 276; Lilly ^" ^^'""^ ^ *°^'° ^""^ "° '^^^^ V. Indianapolis, 149 Ind. 648, 49 authority to assess taxes or raiso jj -p, 007 money to pay the commutation of one who had been drafted in pur- 92. Waters v. Bonvouloir, 172 „ „, <., „ „ . . ^„„ „„ „, suance of the act of Congress of Mass. 286, 52 N. E. 500. 93. Bounties to soldiers. Booth March 3, 1863. Barbour v. Cam- den, 51 Me. 608; Opinion of th© V, WQodbury, 32 Conn, 118; Bush ^^^^^^^^ gg ^^_ 595 365 Bounties to Soldiees. 807- upon cities, towns, villages and other public corporations, power to raise money by taxation to pay bounties to those who, in time of war, shall enlist in the military or naval service of the United States — in order to induce them to enlist — and also for the repayment of money which had been advanced by such public corporations, or by individuals by contribution to a public fund, for the purpose of procuring enlistment, has been settled by repeated decisions. The essential element of the doc- trine is that the sums were authorized to be raised and expended for public purposes, namely, filling of the army and navy for the support and defense of the govern- ment.^* So the legislature has the power to ratify and validate bonds issued by municipal corporations of the state, without authority, to raise bounties which they were authorized to pay.^^ But the legislature has no power to 94. Booth V. Woodbury, 32 Conn. 118; Lowell v. Oliver, 8 Al- len (Mass.) 247; Preeland v. Hast- ings, 10 Allen (Mass.) 570; State ex rel. v. Circleville, 20 Ohio St. 362; Shackford v. Newington, 46 N. H. 415; Hilbish v. Catherman, 64 Pa. St 154; Speer v. School Di- rectors, 50 Pa. St. 150; Russell v. Providence, 7 R. I. 566; Brohead v.. Milwaukee, 19 Wis. 624, 88 Am. Dec. 711. "It was so held upon the ground that claims for public services, or expenditures founded In equity and justice, In gratitude or char- ity, will support a tax, which is voluntarily imposed upon a mu- 'licipality by a majority of the citizens thereof, or by the consent of the municipality evidenced in some other manner." State ex rel. V. Tappan, 29 Wis. 664, 672, 9 Am. Rep. 622. Legislature may confer power on counties to borrow money on credit to pay bounties to volun- teers who would thereafter enlist in the military or naval service of the government. Parker v. Sara- toga County, 106 N. Y. 392, 22 Am. & Eng. Corp. Cas. 254; Clark Coun- ty V. I.^wrence, 63 111. 32. Legislature may authorize school districts to pay bounties, etc. Grim v. Weissenberg School District, 57 Pa. St. 433, 98 Am. Dec. 237; Tyson v. Halifax Tp. School District, 51 Pa. St. 9. 95. Comer v. Polsom, 13 Minn. 219; Kunkle v. Franklin, 13 Minn. 127, 97 Am. Dec. 226; Sanborn v. Machias Port, 53 Me. 82. Support of families of soidiers. Cities and towns may be re- quired by legislative act to mal^e' suitable provision for the support of families of soldiers who, hav- ing a residence therein, have en- listed in the service of the United States, whenever such families shall stand in need of assistance. .808 MuNIOIPAIi COBPOBATIONS. §365 authorize the appropriation or raising of money for the purpose of refunding sums paid by individuals for sub- stitutes, since this is a private and not a public object.^* For in no event can the legislature create a public debt or levy a tax or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. The object for which money is raised by taxation must be public, and such as subserves the common interest and well being of the community required to contribute.®'' Therefore, a legislative act authorizing a certain town to pay bounties to soldiers who re-enlisted in a particu- lar regiment in 1864, and were credited to the town, is unconstitutional, as the direct primary object is to bene- fit individuals and not the public; hence, the payments contemplated are mere gratuities or gifts to individ- uals.®^ An act authorizing towns to raise money to encourage enlistment will not be construed to allow towns to raise money to be paid to persons who have already enlisted. A vote to pay a bounty to those who have enlisted, or shall enlist, will be held invalid as to those who had enlisted at its passage, and valid as to those who after- Veazie v. China, 50 Me. 518; Mil- 98. Mead v. Acton, 139 Mass. ford V. Orono, 50 Me. 529. 341, 1 N. E. 413, 8 Am. & Eng. An act which endbles towns to Corp. Cas. 545. raise money to assist needy and Taxation to pay bounties to vol- destitute families and dependents unteers Is not for a municipal pur- of those mustered from the state pose; neither is taxation to pay Into the military or naval seryice the costs and expenses of unsuc- of the United States to a limited cessful suits .brought to enforce amount is valid. Fiske v. Hazard, ' the payment of any such bounty, 7 R. I. 438. whether against the town or indl- 96. Freeland v. Hastings, 10 Al- vlduals, and therefore the legis- len (Mass.) 570. lature has no power to compel a 97. Brohead v. Milwaukee, 19 town to pay any such bounty or Wis. 624, 652, 88 Am. Dec. 711; such costs and expenses. State Sharpless v. Philadelphia, 21 Pa. ex rel. v. Tappan, 29 Wis. 664, 688, St. 147. 168. 9 Am. Rep. 622. §366 Scope of Appeopeiations. 809 wards enlist, notwithstanding the two objects are em- braced in the same vote.** § 366. Expenditures to obtain or oppose legislation. Some courts have held that, without express authority, a municipal corporation has no power to expend the pub- lic revenue to obtain or oppose legislation before the state legislature or the Congress.* On the other hand, 99. Crowell v. Hopklnton, 45 N. H. 9; Shackford v. Newlngton, 46 N. H. 415. A legislative act which at- tempts to ratify the action of towns in voting money for the payment of the commutation fees of Individuals drafted Into the public service, Is beyond the sphere of constitutional legisla- tion. Thompson v. Plttston, 59 Me. 545; Fiske v. Hazard, 7 R. I. 438. 1. Expenditures to obtain or oppose legislation — lobbying. Westbrook v. Deering, 63 Me. 231, where It was held that a town cannot incur expenses in opposing before a legislative committee a division of its territory. In Frankfort v. Winterport, 54 Me. 250, It was held that, where a statute, after enumerating spe- cific purposes for which the town revenue may be used, recites "and other necessary charges," such words do not authorize a town to raise and expend money to send lobbyists to the legislature. In Massachusetts, prior to the statute of 1889, it was held that a town could not lawfully expend money in advocating or opposing before the legislature the annexa- tion of a whole or a part of its territory to another town. Minot V. West Roxbury, 112 Mass. 1, 17 Am. Rep. 52; Coolidge v. Brook- line, 114 Mass. 592. A town has no authority to ap- propriate money for the payment of expenses incurred by individ- uals prior to its corporate exist- ence as a town in procuring the passage of its charter. Frost v. Belmont, 6 Allen (Mass.) 152. Town cannot pay out of its rev- enues money to persons employed to obtain the passage by the leg- islature of an act authorizing cer- tain towns to pay bounties to sol- diers who re-enlisted in a certain regiment in 1864, and were cred- ited to the town, since such act is unconstitutional. Mead v. Acton, 139 Mass. 341, 1 N. E. 413, 8 Am. and Eng. Rep. Cas. 545. In Kentucky it has been held that a municipal corporation has no power to appropriate corporate revenue to pay the expenses of persons sent to the National and state capitals, in order to procure such legislation as might be neces- sary to authorize the construction of a bridge over a river although such enterprise may prove of great advantage to the city. "The con- struction of a bridge across the Ohio River to connect the city of Covington with the neighboring city of Cincinnati, in the state of 810 Municipal Coepoeations. §367 such expenditures have been judicially, sustained.^ Some state statutes authorize such expenditures. Under the Massachusetts statutes authorizing the employment of counsel by "any town interested in a petition to the legislature," to represent it at hearings thereon, a town may employ and pay counsel to oppose its division be- fore a committee of the legislature.* § 367. Miscellaneous illustrations of implied powers. A city having the general power to build markets is authorized to employ an architect to prepare plans and specifications for their construction.'* Under the gen- eral welfare clause the city may enact a valid ordinance imposing a penalty on all those who cruelly beat any dumb animal.^ Ohio, was not, under the charter as it existed a part of the duty of the city council of Covington, nor ■was the legislation sought hy the council necessary to enable it to perform its corjxjrate duties, or to accomplish the purposes for which the corporation was created. True, such an enterprise might be of very great advantage to the city by inviting population, enhancing the value of real estate, and in many other ways." Henderson v. Covington, 14 Bush. (Ky.) 312, 314. 2. Expenditures for legislation sanctioned. The supreme court of New Hampshire permitted one to recover from a town for ser- vices money expended as a mem- ber of a committee before the legis- lature to secure the holding of one term of court a year in the town. Bachelder v. Epping, 28 N. H. 354. So in Connecticut it has been held that a town has power to employ and pay counsel to oppose before the general assembly of the state a proposition to divide Its territory, where such proposition is not made by the state for mo- tives of policy, but made by cer- tain individuals seeking to pro- mote their own interests. In such case the vote of the town is not necessary to authorize the select- men to employ counsel, and incur expense to oppose such a proposi- tion before the general assembly. Farrel v. Derby, 58 Conn. 234, 20 Atl. 460, 34 Am. and Eng. Corp. Cas. 391, and note, p. 397, re- jecting the conclusions and rea- sons in the Maine and Massachu- setts cases, supra. 3. Connolly v. Beverly, 151 Mass. 437, 24 N. E. 404. 4. Peterson v. New York, 17 N. Y. 449. See Sheidley v. Lynch, 95 Mo. 487, 8 S. W. 434, 24 Am. and Eng. Corp. Cas. 520. 5. St. Louis V. Shoenbusch, 95 Mo. 618. 8 S. W. 791. §367 Implied Powers. 811 The power conferred upon a city to hold an election for authority to contract for the supplying of its streets with water, etc., and no election machinery for holding an election having been provided therefor, carries with it as "an inevitable and indubitable incident" the usual and customary means to put the power conferred into effect.® Therefore, under such statute the city has au- thority to employ the usual and necessary means to put in motion the power granted, namely, the passage of an ordinance and the holding of an election for the purpose of obtaining the assent of the voters to the creation of the indebtedness provided for therein.'' Charter power "to remove or conjfine persons having infectious or pestilential diseases," authorizes the rent- ing and leasing of a house in which to confine smallpox patients.® 6. Ex parte Marmaduke, 91 Mo. 228, 251, 262, 4 S. W. 91; State ex rel. v. Perkins, 139 Mo. 106, 118, 40 S. W. 650; State ex rel. v. Walbridge, 119 Mo. 383, 394, 24 S. W. 457; 1 Kent Com. 463, 464; Sutherland, Stat. Construction, § 341. 7. Necessary incidental power PS impiied. "Where express power Is given all the power necessary to carry it into effect is implied. That which is implied is as much a part of the statute as if written therein. The statute provides for an election, and requires a two- thirds majority of the qualified voters to ratify the contract. Such contract necessarily involves the creation of indebtedness. The city could not get water without pay- ing for it and the legislature could not have Intended It to do 'Otherwise." Per Sherwood, J., In State ex rel. Miller v. M., K. & T. R. R. Co., 164 Mo. 208, 212, 213, 64 S. W. 187. Many illustrations of inherent or incidental powers are given in Aurora Water Co. v. Aurora, 129 Mo. 540, 577, 31 S. W. 946. In sustaining the power of the legislature to authorize a munici- pal corporation to supply electric- ity for Illuminating streets and public places, the supreme court of Pennsylvania said: "It is a mistake to assume that municipal corporations should not keep abreast with the progress and im- provements of the age." Linn v. Chambersburg Borough, 160 Pa. St. 511, 28 Atl. 842. 8. Anderson v. O'Connor, 98 Ind. 168, 172. 812 MtTNICIPAIi CoEPOEATIOlSrS. §367 The courts recognize certain other implied or incident- al powers, as authority to compromise. or settle disputed claims,^ submit disputed controversies to arbitration,*" 9. Power to compromise dis- puted claims. Unless expressly fortiidden by law a municipal cor- poration has power to settle dis- puted claims in its favor or against it. People ex rel. v. San Francisco, 27 Cal. 655; People ex rel. V. Coon, 25 Cal. 635; Augusta V. Leadbetter, 16 Me. 45, 47; Bail- ey ville V. Lowell, 20 Me. 178; Bean V. Jay, 23 Me. 117; Prout v. Pitts- field Fire District, 154 Mass. 450, 28 N. E. 679. The capacity to sue and be sued gives such implied power. Peters- burg V. Mappin, 14 111. 193, 195, 56 Am. Dec. 501, approved in Ag- new V. Brail, 124 111. 312, 315, 16 N. B. 230, 20 Am. & Eng. Corp. Cas. 134. Power to release from oppres- sive contract. Bean v. Jay, 23 Me. 117; Meech v. Buffalo, 29 N. Y. 198, 210. County may compromise disput- ed claims. Mills County v. B. & M. R. R. Co., 47 Iowa 66; Grimes v. Hamilton County, 37 Iowa 290; Allen v> Cerro Gordo County, 34 Iowa 54. Power to compromise. Otsego Lake v. Kirsten, 72 Mich. 1, 40 N. W. 26, 24 Am. & Eng. Corp. Cas. 456; Olp v. Leddick, 59 Hun (N. Y.) 627, 14 N. Y. S. 41; Shanklin v. Madison, 21 Ohio St. 575; Boston Iron Co. v. U. S., 118 U. S. 37; article 55, Central Law Journal 425 et seq. 10. Shawneetown v. Baker, 85 111. 563; Brady v. Brooklyn, 1 Barb. (N. Y.) 584; Smith v. Phila- delphia, 13 PUUa. (Pa.) 177; Fa- ville V. Eastern Counties Ry. Co., 2 Exch. 344; In re Corporation of Brant, 19 Up. Can. Q. B. 450. Power to submit controversies to arbitration. Town may submit claims to arbitration. Boston v. Brazer, 11 Mass. 447; Buckland v. Conway, 16 Mass. 395; Common- wealth V. Roxbury, 9 Gray (Mass.) 451.. School district may arbitrate claim. Walnut Tp. v., Rankin, 70 Iowa 65, 67, 29 N. W. 806. Corporation may be compelled to pay the award. Elmendorf v. Jer- sey City, 41 N. J. L. 135. Municipal corporation included in the term "persons" in a statute relating to arbitration. Spring- field V. Walker, 42 Ohio St. 543, 547. County court may submit to ar- bitration. Remington v. Harrison County Court, 12 Bush. (Ky.) 148. Canal company may arbitrate claim without special charter pow- er. Alexandria Canal Co. v. Swann, 5 How. (U. S.) 83. The state may divest itself of its sovereignty and its exemption from suit, and by legislative en- actment submit claims against it in dispute to arbitrament. State V Ward, 9 Heisk. (Tenn.) 100. Cannot arbitrate the question as to the value of lands taken or con- demned for public improvements. Somerville v. Dickerman, 127 Mass. 272, 275; Boylston Market Association v. Boston, 113 Mass. 528; Harvard College v. Bos- ton, 104 Mass. 470; Brimmer v. §367 •Implied Powees. 813 offer rewards for the apprehension and conviction of offenders against local or municipal regulations," and the right to indemnify municipal officers who incur loss for the benefit of the corporation/^ all of which powers are usually required to be exercised by ordinances.*' Boston, 102 Mass. 19; Paret v. Bay- onne, 39 N. J. U 559. Question of damage of lands taken for highway cannot be sub- mitted to arbitration. Mann v. Richardson, 66 111. 481. Question of price of a bridge and damages for right of way across land for public road cannot be submitted to arbitration. McCann V. Otoe County, 9 Neb. 324; Sioux City & P. R. R. V. Washington County, 3 Neb. 30, 42; Stewart v. ntoe County, 2 Neb. 177. Contra, Scboff V. Bloomfield, 8 Vt. 472. When award of jury may be set aside and damages fixed by coun- cil, see Mobile v. Richardson, 1 Stewart & P. (Ala.) 12. Claim for damages on the part of property owners against a rail- road company cannot be submitted by the municipal corporation to arbitration. New Haven v. N. H. & D. R. R. Co., 62 Conn. 252, 25 Atl. 316. Respecting mode of submitting claims to arbitration, see article 55 Central Law Journal, page 425 et seq. S 391 post. 11. Rewards for offenders. People ex rel. v. Holly, 119 Mich. 637, 639, 640, 44 L. R. A. 677, 78 N. W. 665; Shute v. Tay- lor, 5 Met. (Mass.) 61; Brown v. Bradlee, 156 Mass. 28, 15 L. R. A. 509, 30 N. B. 85; Mead v. Boston, 3 Cush. (Mass.) 404; Freeman v. Boston, 5 Mete. (Mass.) 56; Shaub V. Lancaster City, 156 Pa, St, 362, 26 Atl. 1067, 21 L. R. A. 691; York V. Forscht, 23 Pa. St. 391, 393. But In the absence of express authority a municipal corporation may not offer rewards for infor- mation leading to the arrest and conviction of violators of state laws although committed within the municipal limits, for the rea- son that this is not a municipal power but a duty devolving upon the state. Crofut v. Danbury, 65 Conn. 294, 32 Atl. 365; Hawk v. Marion County, 48 Iowa 472; Abel V Pembroke, 61 N. H. 357, 359; Winchester v. Redmond, 93 Va. 711, 25 S. B. 1001, 57 Am. St. Rep, 822. In Canada power is given to councils to offer rewards. Biggar, Mun. Manual of Canada, pp. 803, 804, §§ 593-595, and notes. 12. Bancroft v. Lynnfleld, 18 Pick. (Mass.) 566; Babbitt v. Sa- voy, 3 Cush. (Mass.) 53.0; Had- sell V. Hancock, 3 Gray (Mass.) 526; Nelson v. Milford, 7 Pick. (Mass.) 18; Barnert v. Paterson, 48 N. J. L. 395, 6 Atl. 15; State v. Hudson, 37 N. J. L. 254; State v. Hammonton, 38 N. J. L. 430 ; Sher- man V. Carr, 8 R. I. 431, approved in Roper v. Laurlnburg, 90 N. C. 427; Atty. Gen. v. Norwich, 2 Mylne & Cr. 406; King v. Inhab- itants of Essex, 4 T. R. 591. See § 514 post. 13. Methods of compromise by municipal corporations proper. State ex rel, v, Martin, 27 Neb. 814 Municipal Coeporations. § 368 § 368. Same subject. A city council has the right to prescribe by ordinance, rules of procedure in the exercise of its power, and when it has so provided it must act in the maimer prescribed.** "The regulation of .prices to be charged by a corpo- ration intrusted with a franchise of a public utility char- acter is within the soveregn power of the state that grants the franchise or that suffers it to be exercised within its borders, and that power may be with wisdom and propriety conferred on a municipal corporation, but it is not a power appertaining to the government of the city and does not follow as an incident to a grant of power to frame a charter for a city government." *' The power to engage in the business of brick making is not included in the powers expressly granted to the City of Detroit. It is neither fairly implied in, nor in- cident to, such powers as are expressly granted, nor is it indispensable or even essential to the declared objects and purposes of the corporation. While the law permits municipal corporations to do those things which are necessary to accomplish the objects of their creation, under an implication of power, the right has not usually been held to go so far as to permit them to engage in the manufacture of articles necessary to their lawful enter- prises, where they are in common use and are to be had in the open market.*® Where a city was empowered to erect and control 441, 43 N. W. 244; New Orleans W. 121, 43 Am. Rep. HI; Hall v. V. L. & N. R. R. Co., 109 U. S. Baker, 74 Wis. 118, 42 N. W. 104. 221, 2 Am. & Eng. Corp. Cas. 156. See art. 55, Central Law J., p. Compromise by towns on town 425 et seq. vote. Ford v. Clough, 8 Me. 334,. 14. Carbondale v. Wade, 106 345, 23 Am. Dec. 513; Nelson v. 111. App. 654, 662. Milford, 7 Pick. (Mass.) 18; Tut- 15. State ex rel. v. Missouri & tie V. Weston, 59 Wis. 151, 17 N. Kan. Tel. Co., 189 Mo. 83, 100, 88 W. 12, 2 Am. & Eng. Corp. Cas. S. W. 41. 168; Matthews v. Westborough, 16. Attorney General v. Detroit, 134 Mass. 555, 562, 2 Am. & Eng. 150 Mich. 310, 113 N. W. 1107, 14 Corp. Cas. 239. Det. Leg. N. 64a Compromise by counties. Col- See § 359 ante, Una T, Welch, 58 Iowa 72, 12 N, § 369 Implied Powebs. 815 bridges and docks and to purchase or lease land for bridges or approaches, it was held to have the power to acquire the right to swing a bridge over the land of a private owner and ip consideration therefore, to con- struct a vault under a street, and grant the use thereof free of rent to such owner so long as the right to swing the bridge continued." It is sufficient if the power exercised is conferred by necessary implication. Thus, the power to proA^ide for the licensing and regulation of peddlers and hawkers necessarily implies, if it does not clearly express, the power of prescribing the amount of the license fee and of enforcing its payment.^® Implied power to ac- quire, hold, use, mortgage, pledge and dispose of prop- erty, real, personal and mixed, for municipal purposes, is considered in the Chapter on Corporate Property. Many other implied powers are treated in the chapter which follows relating to special or particular and mis- cellaneous municipal powers.** § 369. Exercise of powers by virtue of usage or custom. Usage has been applied to the manner in which cor- porate powers are to be exercised, as where an inspector is charged with the duty of weighing and ascertaining the weight of all grain, he may perform this duty by weighing but one bushel in every sixty .^° But ordi- narily courts are slow to invoke usage in considering corporate powers under the charter. This is especially true where its language is clear and free from ambi- guity; but where the language is indefinite, uncertain or ambiguous, sometimes the courts will, in determining 17. Chicago v. Norton Milling the city magistrates "justices of Co., 196 111. 580, 63 N. B. 1043. the peace ex officio" does not au- 18. State V. Cederaski, 80 Conn, thorize the city to create an action 478, 483, 69 Atl. 19. of debt of which such magistrates Implied power to prescribe fire as justices shall have jurisdiction, limits and prevent the erection Weeks v. Porman, 16 N. J. L. 237- of wooden buildings therein. 19. Ch. 11. Baumgartner v. Hasty, 100 Ind. 20. Frazier v. Warfield, 13 Md. 575, 50 Am. Rep. 830. 279, 303. A city charter which constitutes 816 Municipal Cobpobations. § 369 the mode in whicli the particular power may be ex- ercised, invoke a well-established ancient and universal custom.^ ^ In this country, prescription as respects the existence of municipal powers is of but little importance, there- fore usage is but a small factor or element in ascertain- ing the meaning of charter prowsions.^^ But in England, prescription is of much more consequence in interpretinj? charter powers. There the long continued exercise of corporate rights, which, in theory, presupposes legal grant upon which such rights are based, is said to estab- lish such powers by prescription, although in fact such rights were never legally granted and never could have been so granted.^^ Under no circumstances will an oflScer be permitted to recover additional compensation for expenses incurred by him in the absence of express provision of law, on the ground of usage.^* So a city cannot ratify the un- warranted allowance of the payment of unusual salaries or fees or expenses, or for work done, whether provided by contract or ordinance, violative of charter provisions. Thus where the charter provides that no contract shall be binding unless made by some authorized agent and within some appropriation for the purpose, the city is not liable for legal services beneficial to the city performed by counsel retained by a majority of the members of the board of aldermen (the city council consisted of two 21. Sherwin v. Bugbee, 16 Vt. v. Story, 22 Bart. (N. Y.) 414, 439; Smith v. Cheshire, 13 Gray 492, 493. (Mass.) 318. 23. Atty. Gen. v. Foster, 10 Ves. 22. Lawson, Usages & Customs, 335; Clark v. Denton, B. & A. 92 § 224. Chad v. Tllsed, 5 J. B. Moore 185 Further as to usage, see Willard Rex v. Salway, 9 B. & C. 424 V. Newburyport, 12 Pick. (Mass.) Clark v. LeCrew, 9 B. & C. 52; Rex 227; Benoit v. Conway, 10 Jlllen v. Mashiter, 6 A. & E. 153. (Mass.) 528. 24. Camden v. V^rney, 63 N. J. Usage canot control in the pas- L. 325, 43 Atl. 889; Demarest v. sage of a resolution or the exer- New Barbadoes, 40 N. J. L. 604, else of legislative power in viola- 607. tion of implied provisions of the See § 525 post. charter as to procedure. Wetmore § 370 PowEBs : Effect of Custom. 817 boards, namely, the board of mayor and aldermen and the common council) without any official action of the city council or of either branch thereof, notwithstanding the usage of the city has been to pay such bills approved by the committee of either boards without any formal vote.^" § 370. Same subject. Usage may sometimes be invoked in ascertaining municipal duties or powers, but "an unlawful expendi- ture of money of a town cannot be rendered valid by usage, however long continued. Abuses of power and violations of right derive no sanction from time or custom. A casual or occasional exercise of a power by one of a few towns will not constitute usage. It must not only be general, reasonable and of long continuance, but, what is more important, it must also be a custom necessary to the exercise of some corporate power, or the enjoyment of some corporate right, or which con- tributes essentially to the necessities and conveniences of the inhabitants. "2« 25. Butler v. Charlesto-wn, 7 pallty Itself, having their origin Gray (Mass.) 12. In the public exigencies, and be- See § 522 post. ing measured by them. Usage op custom will not sup- (3) To establish even such a port Illegal payment. Here it usage, it is not sufficient to show was sought to prove the existence a usage in a single town, but a of a usage in committees and offi- general usage among like towns cers of the city government to and cities, and reasonable in itself, make like contracts. Thomas J. (4) The usage here attempted observed (pp. 16 and 17) : to be established is In violation (1) "The first suggestion to be of general law, and the charter made on this point , is, that in and ordinances of the city. The cities where the corporation acts doing of one wrong does not ex- only through officers whose pow- cuse another. ers are limited and defined by law, (5) There Is nothing In the the court would be slow to sane- usage attempted to be established, tion any usage enlarging those from which an Implied contract powers. to pay the plaintiff could be In- (2) The power of towns and ferred." cities, that have grown up from 26. Hood v. Lynn, 1 Allen usage, are powers of the munlcl- (Mass.) 103, 106; Sylvania v. Hll- 1 McQ.— 52 818 Municipal Cobpobations. §370 "Communis error facit jus is a recognized maxim of the law, but it is seldom applied in the administration of justice, and never without the exercise of the utmost caution. "2'' Ordinarily the maxim will not be applied in an erroneous interpretation of a statute, injurious to the public interests, or to private rights, which has sprung up within a recpnt period.^® Sometimes the acquiescence on the part of the munic- ipality respecting a particular construction of its charter powers, if adopted by third persons in good faith under which vested rights are acquired, will establish a prec- edent or amount to a usage which will close the mouth of the municipality from denying that this construction was a proper one. Of course, this rule is limited to the irregular exercise of corporate power, and cannot be ton, 123 Ga. 754, 51 S. E. 744. 2 L. R. A. (N. S.) 483, citing Mc- Quillin, Mun. Ord., § 73. "Other necessary charges." Re- lating to power of towns as to voting money under a sweeping clause, "other necessary charges," Shaw, C. J. remarked: "We think It referred to other provisions of law, and well-established usage to ascertain what the object of town charges are, and to provide that towns might raise money for any purpose thus determined. But to bring any particular subject with- in the description of necessary town charges, it must appear to be money necessary to the execu- tion of some corporate power, the enjoyment of some corporate right, or the performance of cor- porate duty, as established by law or long usage. For instance, towns are authorized and required to hold meetings: as incidental thereunto they may hire, purchase or build a townhouse. They may prosecute and defend suits; as in- cident to which, they may appro- priate money to retain counsel, to pay costs and to meet and satisfy judgments, which may be recov- ered against them." He also said: "It is not a casual or occasional exercise of a power by one of a few towns which will constitute such usage, but It must be a usage, reasonable In Itself, gen- eral amongst all towns of like situation, as to settlement and population, and of long continu- ance." Spaulding v. Lowell, 23 Pick. (Mass.) 71, 76, 79. See 5§ 388, 389 post. 27. Booraem v. N. H. C. R. R., 44 N. J. Eq. 70, 78, 14 Atl. 106. Local custom at variance with a general statute cannot control the statute even in that locality. Noble V. Durell, 3 T. R. 271; Godcharles v. .WIgeman, 113 Pa. St. 431, 437, 6 Atl. 354. 28. See dissenting opinion of Thompson, J., in Cole v. Skralnka, 37 Mo. App. 427, 443, where the o.uestlon under consideration is fully treated. § 371 Implied Powers. 819 extended to an enlargement of municipal powers so as to include authority which the city did not legally possess.^® A usage of trade defining the meaning of a term or expression need not be ancient ; it is sufiScient on the part of the contraeting parties, to use the expression in the sense thus defined. This rule was applied to an ordi- nance for street improvements, which called for "a pave- ment of granite blocks, eight inches deep;" and it was held that the expression could be construed in the light of a custom prevailing at the time of the adoption of the ordinance which defined the dimensions of the granite blocks used.^" 3. EXECUTION OF POWERS. § 371. Method of exercise of powers. Where the charter or statute under which the munic- ipal corporation is created, or other legislative act appli- 29. Van Hastrup v. Madison receive weight. State ex rel. v. City, 1 Wan. (U. S.) 291; Porry v. Severance, 49 Mo. 401. Ridge, 56 Mo. App. 615; Endlich 30. Cole v. Skrainka, 37 Mo. on Statutes, § 360. App. 427; affirmed in 105 Mo. 303, Construction by parties. "It 16 S. W. 491. See Soutier v. any doubts could exist as to the Kellerman, 18 Mo. 509. proi)er construction of this ordi- Usage may be Invoked in the nance they are put at rest by the construction of improvement ordi- evident construction the city itself nances. Kimball v. Brawner, 47 placed upon It which appears Mo. 398. from the fact that an amendment Settled meaning of words used was deemed necessary." St. among engineers and contractors Louis Brewing Association v. St. will be adopted. Levy v. Chicago, Louis, 140 Mo. 419, 427, 37 S. W. 113 111. 650. 525, 41 S. W. 911. In Verdin v. St. Louis, 131 Mo. Contemporaneous construction 26, 135, 33 S. W. 480, 36 S. W. placed upon an ordinance by the 52, the court said "the petition parties themselves, and on which alleges that the board had ver- they have acted, and upon which bally announced it, that no bid for large and important interests maintenance would be considered have vested, would not be con- or recommended by the board, trolling if the language was clear- which would exceed fifty cents per ly the other way, yet In doubtful square. This, it would seem, was cases jt }g entitled \9 and should well understood by all contractorsi 820 MlTNIOIPAIi COBPOBATIONS. §371 cable, directs in precise or definite terms the manner in which certain corporate acts are to be executed, and points out the departments, officers or agents who are to perform them, such specification must be substantially foUowed.^^ "The mode in such cases constitutes the measure of their power." ^* "Where a corporation relies upon a grant of power from th§ legislature for authority to do any act, it is as much restricted to the mode pre- scribed by the statute for its exercise as to the thing allowed to be done."^^ In conferring the power, it is the intention that it shall be exercised by the body and and, at least, there Is no allega- tion that all proposed contractors ■were not fully aware of the ex- istence ot the rule. If so, such a rule well known and well under- stood, would be equivalent to thai filing of the specifications in the offlce of the city clerk and then referring to them in the city ordi- nance." In Wolff V. Campbell, 110 Mo. 114, 19 S. W. 622, it was held "a custom or usage may be received in evidence to explain the mean- ing of the parties to a contract, written or parol, where the mean- ing Is not definitely stated in the contract,"' 31. California. Glass' v. Ash- bury, 49 Cal. 571; McCracken v. San Francisco, 16 Cal. 591; Hol- land V. San Francisco, 7 Cal. 361; Pimental v. San Francisco, 21 Cal. 851. Indiana, Campbell v. Brackett,. Ind. App. (1910), 90 N. &. Ill; Slessman v. Crozier, 80 Ind. 487; First Presbyterian Ch. v. Ft. Wayne, 36 Ind. 338, 10 Am. Rep. 35. Iowa. Fullerton v. Des Moines, la. (1908), 115 N. W. 607. Maryland. Baltimore v. Porter, 18 Md. 284, 79 Am. Dec. 686. Missouri. Nevada v. Eddy, 123 Mo. 546, 27 S. W. 471; Stewart v. Clinton, 79 Mo. 603; Kansas City V. Flanagan, 69 Mo. 22; Thomson V. Boonville, 61 Mo. 282; Saxton V. St. Joseph, 60 Mo. 153; St. Louis V. Clemens, 43 Mo. 395; Rug- gles V. Collier, 43 Mo. 353; Knapp V. Kansas City, 48 Mo. App. 485. Montana. Carlson v. Helena, 39 Mont. 82, 102 Pac. 39; McGillic V. Corby, 37 Mont. 249 (1908), 95 Pac. 1063. West Virginia. Richards v. Clarksburg, 30 W. Va. 491, 4, S. E. 774. Wisconsin. Oilman v. Milwau- kee, 61 Wis. 588; Sprague v. Coenen, 30 Wis. 209. ■ United States. Ft. Scott v. Eads Brokerage Co., 117 Fed. 51, 54 C. C. A. 437. " ' 32. Per Field, J., in Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; Page v. Belvin, 88 Va. 985, 990, 14 S. E. 843; Smith v. Stevens, 10 Wall. (77 U. S.) 321, 326, 19 L. Ed. 933. 33. Per Welles, J., in Farmers' Loan & Trust Co. v. Carroll, 6X Barb. (N. Y.J 33. >§ 372 How Powers Executed, 821 in tlie mode prescribed, "and any departure from such authority or any attempt by the body to transfer their powers to others is unwarranted. ' ' ^^ Thus where the charter requires any sale or lease of its real estate to be made at public auction to t!he highest bidder, a lease of any of its property by ordinance at a fixed rental is unlawful.*.* So where a corporation is empowered to issue bonds "at such times as the board of trustees may, by resolution, direct, ' ' a legal issue can only be authorized by resolution.*^ So where the charter provides that a particular power shall be exercised by ordinance, its exercise in any other manner, as by contract or resolu- tion, would not be legal.*'' But where the city has general power to act by and through ordinances, a special power to issue bonds for specified purposes may be exercised by ordinance, submitting the question to a vote of the people.** § 372. Same subject. A municipal corporation may prescribe the manner in which its powers may be exercised, and when so pre- 34. Bast St. Louis v. Wehrung, Where the power exists, hut is 50 111. 28, 31. I not executed as prescribed, the "To sanction a contrary doc- act may be subsequently ratified, trine would place the corporation Lucas v. San Francisco, 7 Cal. 463. above the law, and would, to say See ch. 16 post. the least, be fraught with danger- 37. Unionville v. Martin, 95 ous consequences. If such a doc- Mo. App. 28, 36, 68 S. W. 605; trine should prevail is there not Mills v. San Antonio (Tex. Civ. reason to fear that corporations App. 1901_j, 65 S. W. 1121; Bryan might soon become intolerable nul- v. Page, 51 Tex. 532, 32 Am. Rep. sances?" Hurford v. Omaha, 4 637. Neb. 336, 350. ' See ch. 15 post, for distinction "It is a well-established princi- between ordinance and resolution, pie that when a new power and The power of correcting ward the means of executifag it are limits must be exercised by ordi- glven by statute the power can be nance as any ordinary act of legis- executed in no other way." Hovey lation and not by resolution. Cas- V. Mayo, 43 Me. 322, 332; Glass caden v. Waterloo. 106 Iowa 673, V. Ashbury, 49 Cal. 571. 77 N. W. 333; McCulley v. Eliza- 35. San Francisco, etc. Rail- beth, 66 N. J. L. 555, 49 Atl. 686. road Co. v. Oakland, 43 Cal. 502. 38. Mason v. Shawneetown, 77 36. McCoy v. Briant, 53 Cal. 247. 111. 533, 537. 822 Municipal Cobpokaiions. § 372 scribed tliey must be done in the manner provided and no otber.'' If power is conferred on a municipal corporation by charter or legislative act applicable and tbe law is silent as to the mode of exercising such power the corporate authorities are necessarily clothed with a reasonable dis- cretion to determirie the manner in which such powers shall be exercised; all the reasonable methods of execu- ting such power are inferred.*" Thus power to secure a water supply may be exercised by using driven wells instead of those sunk in some other manner.*^ If there are two ways of attaining an authorized municipal end, and both of such ways are proper, the municipal authorities have a choice as to which of such means they will select; but where the means selected have not been directly authorized, such means must be reasonable.*^ Where a law in terms confers on a municipal corpora- tion power to pass ordinances of a designated kind, ordi- nances so passed cannot be questioned as unreasonable if the act authorizing them conforms to the federal and state constitutions. Ordinance passed under a general grant of power, or by virtue of implied or incidental powers, may be set aside if unreasonable. But what the statute expressly says may be done, of course, the courts have no power to annul simply because the ordinance may be looked upon as unwise. If the method of exer- 39. CJorbondale v. Wade, 106 poration may make contracts to 111. App. 654. carry Into effect Its power in like 40. State v. Tampa Water manner as Individuals. Beers v. Works Co., 56 Pla. 858, 47 So. 358, Dalles City, 16 Ore. 334, 341, 18 19 L. R. A. (N. S.) 183; Walker Pac. 835. V. Jameson, 140 Ind. 591, 602, 37 41. Dieckmann v. New York, N. E. 402, 39 N. E. 869, 28 L,. R. 70 N. Y. S. 1021, 34 N. Y. Misc. A, 679, 49 Am. St. Rep. 222; 684; Westphal v. New York, 78 N. Lewisville Natural Gas Co. v. Y. S. 56, 75 N. Y. App. Dlv. 252. State, 135 Ind. 49, 34 N. E 702. 42. Scott v. Laporte, 162 Ind. Through its officers and proper- 34, 46, 68 N. E. 278, 69 N. E3. 675. ly authorized agents, the cor- See § 376 post. § 373 Necessity fob Obdinances. 8^3 cising the power is not defined, its exercise must be reasonable and of this the court is the judge.*^ § 373. When ordinance necessary to exercise power. By far most of the powers exercised by municipal cor- porations require either an ordinance or resolution, which, as a rule, is to all intents and purposes a legisla- tive act. The legal entity, while purely a governmental institution existing solely for the public good of the local community, is a corporation and may only legally act as such. All of its corporate and political powers, unless lodged elsewhere, are construed as being vested in the council or governing legislative body, which, under the prevailing system in the American municipality, is the most numerous and popular branch of municipal organi- zation. Such vesting of powers would seem to support the legal view that the municipal corporation in most of its important functions is essentially an organ of govern- ment, and being such, the inhabitants of the corporation should be directly represented, and through their repre- sentatives should direct the affairs of the corporation. In the performance, therefore, of its manifold duties, to validate its acts, ordinances are necessary unless the method of executing the power is sufficiently prescribed by charter or legislative act applicable, or is in the nature of a purely administrative duty. In case of doubt the authority for the act and the manner of its execution, should be directed by the council or governing legislative body in appropriate form. Where the charter requires 43. Chicago & A. Ry. Co. v. Business methods. When not CarllnvlUe, 103 III. App. 251, 255; limited by a prescribed method, Lake View v. Tate, 130 111. 247. a municipal corporation should be Reasonable exercise. When a regarded aa a business institution power is conferred and the de- as to those transactions permitted tails of the legislation are not by its charter, and should be al- prescrlbed, it is implied that the lowed to act with the same busi- power will be reasonably exer- ness foresight accorded other busi- cised. Chicago v. Pittsburg, etc. ness institutions. Biddeford v. R. Co., 244 111. 220, 91 N. E. 422: Yates, 104 Me. 506, 72 Atl. 335. Delphi V. Hamling, 172 Ind. 645, 89 N. E. 308. 824 Municipal . Cobpoeations. § 374 the passage of an ordinance — a legislative act — ^by the council, to accomplish the object desired, an ordinance is indispensable ; the power cannot be delegated to others.** § 374. Same subject — ^legislative or executive pawers. Charters usually provide that the legislative powers of the corporation shall be vested in the governing legis- lative body, generally called the council or the common council or municipal assembly, and the executive and ad- ministrative powers in the mayor and heads of designated departments and other officers created or to be created by law. Often charters provide either expressly or by im- plication that neither the legislative body nor any com- mittee or member thereof shall perform any executive business whatever. Executive and administrative duties are such as con- cern the' execution of existing laws. Acts which require the ordaining of new laws are legislative. Thus where it can be shown that the particular act could not have been done without a law or ordinance, such act is to be con- sidered as legislative. Therefore, a resolution of a council, adopting certain plans and specifications direct- ing a market to be built in accordance with them, and awarding the contract at a specific price, was sustained.*^ 44. §§ 384 to 386 post. of building a particular edifice Authority to private persons to according to a specified plan, was build a sewer along a public the substantial part of the resolu- street can only be granted by tion. The rest was modal." The ordinance. State v. Lambertville, court found that, although the 45 N. J. L. 279. charter required all contracts to See ch. 15 post. be made by the appropriate heads 45. Legislative power. "It is of departments, the building of a equally an act of local legis- new market (the subject of the latlon to fix upon the form resolution) not being among the and dimensions of a public build- duties of any of the executive de- ing. Indeed, anything which en- partments, could be provided for ters into the idea of the plan of by resolution of the council. Pe- an edifice may properly be deter- terson v. New York, 17 N. Y. 449, mined by the authority to which 454. the law commits the duty of dei- Employment of agents, as at- termining that one should be built, torneys. Is often a legislative act. * • • The adoption of the project Bryan v. Page, 51 Tex. 532, 535. § 375 How Powers- Executed. 825 § 375. Same subject — self-enforcing charter provisions. That all corporate acts must be performed in the mode prescribed, is a general proposition firmly established.*" As pointed out elsewhere certain rtmnicipal powers can only be executed legally by the formal enactment of ordi- nances (as contradistinguished frorn mere resolutions),*^ which is essentially a legislative act. Where the grant conferring the power is a complete enactment within itself, the provision, whether charter or statutory, becomes self -enforcing, and therefore legisla- tion by ordinance is not required. Thus where the offense is defined, the penalty and mode of prosecution pre- scribed, the charter provision may be executed without ordinances.*® But where the provision is merely a grant of power, as authority to license and regulate trades, occupations, professions, etc., to regulate or suppress or license the sale of liquor,*^ bawdy houses, gaming and gambling houses, to prohibit and destroy instruments and devices, etc., of gambling,^" to abate nuisances," to employ agents and attorneys,^^ to make public improvements,^^ to fix wharfage dues,^* to establish water-works and public wells,^^ and to exercise the delegated police power gen- erally,^® the passage of proper ordinances or resolutions is required, to make the power effective. 46. § 371 ante. v. Batesville, 139 Ind. 77, 38 N. E. 47. Ch. 13 post. 408, 35 N. E. 682; Laviosa v. Chi- 48. Strauss v. Pontlac, 40 111. cago, etc. R. Co., 1 McGloin (La.) 301, 303; Ashton v. Ellsworth, 48 299. 111. 299. 52. Bryan v. Page, 51 Tex. 532. 49. People v. Grotty, 93 111. 180; 53. Delphi v. Evans, 36 Ind. 90, Bull V. Quincy, 9 111. App. 127. 101. 50. Ridgway v. West, 60 Ind. 54. Muscatine v. Keokuk Packet 371, 22 Cent. L. J. 319. Co., 45 Iowa 185. 51. Lake v. Aberdeen, 57 Miss. 55. Unionville v. Martin, 95 260. Mo. App. 28, 36, 68 S. W. 605. Power to declare and abate nui- Ordinances necessary to direct sances can he exercised only by the sale of market stalls. Rose general ordinance applicable alike v. Baltimore, 51 Md. 256. 34 Am,' to all property similarly circiim- Rep. 307. stanced. American Furniture Co. 56. Chapter 22 post. 82(5 Municipal Coepobations. §376 § 376. Judiciary will not control the exercise of discre- tionary powers.*^* Frequently powers are conferred upon municipal corporations, in general terms, without specification as to the time when, or manner in which, they are to be exer- cised. Obviously the execution of such powers involves the exercise of judgment and discretion, and therefore the general rule has obtained that, in the absence' of collusion or fraud, courts will decline to interfere where an officer or an agent in the execution of the power is acting within the scope of his prescribed authority. ^^ In such case, any method which is fit and proper, with a due regard to the nature of the power, may be employed.** These corporations "must have a choice of means adapted to ends, and are not to be confined to any one mode of operation. ' ' ** Thus in the absence of prescribed 56a. Brlggs v. Lahey, 101 N. T. App. Div. 136, 91 N. Y. S. 576; Coppin V. Hermann, 6 Ohio N. P. 452. 57. Des Moines Gas Co. v. Des Moines, 44 Iowa 505, 24 Am. Rep. 756; St. Louis v. Boffinger, 19 Mo. 15; Hardee v. Brown, 56 Fla. 377, 47 So. 834; State v. Tampa Water- Works Co., 56 Fla. 858, 47 So. 358, 19 L. R. A. (N. S.) 183; Bradford v. Jones, 142 Ky. 820, 135 S. W. 290; La Grange v. Over- street (Ky., 1910), 132 S. W. 169; New Orleans R. E. Co. v. Teu- tonia Ins. Co. (La. 1911), 54 So. 466; State v. Dodson, 123 La. 903, 49 So. 635 ; Jones v. North Wllkes- boro, 150 N. C. 646, 64 S. E. 866; .Tohnson v. Indianapolis, (Ind. 1910), 93 N. E. 17; Ste. Mary v. Barrows, 68 N. Y. Misc. 545, 124 N. Y. S. 571; Inszkewicz v. Luther (R. I., 1910), 76 Atl. 829. 58. Lincoln St. Ry. Co. v. Lin- coln, 61 Neb. 109, 84 N. W. 802; Union Pac. R. Co. v. Ryan, 2 Wyo. 391, 113 U. S. 516; Poillon v. Brooklyn, 101 N. Y. 132, 4 N. B. 191; Heman v. Schulte, 166 Mo. 409, 66 S. W. 163. 59. Bridgeport v. Housatonic R. R. Co., 15 Conn. 475, 501, as to issue of bonds; Slack v. Maysville & Lexington R. R. Co., 13 B. Mon. (Ky.) 1; State ex rel. v. Wal- bridge, 119 Mo. 383, 394, 24 S. W. 457, removal of officer. Power given without specifica- tion as to mode of Its exercise, per- mits the adoption of a reasonable mode, and implies discretion In this respect. Cincinnati v. Gwynne, 10 Ohio 192, relating to enforcement of a special tax by suit In the nature of an action for debt. Markle v. Akron, 14 Ohio 586, as to regulating sale of liquor. Bvansville, I. & C. S. L. R. R. Co. V. Bvansville, 15 Ind. 395, mode of exercising power and time § 377 CONTBOL OF POWEBS BY CoUBT. 827 form, in certain cases the legislative or governing body may act by resolution instead of by ordinance.®" This subject is considered in subsequent sections.®^ So where by law a city may erect an electric plant upon approval of a majority of its electors, and pay for the same by the issuance and sale of bonds, ihe entire matter of erection of plant and issuance of bonds may be submitted to vote in one proposition.''^ So the power to construct water- works, upon like majority vote, may be properly exercised by ordinance prescribing the charter of such works and the tax to be levied to meet the cost of construction in advance of the election, and then submitting the matter to the voters.®^ So where a city council has power to make a lease of real estate at a " reasonable rent, ' ' in the absence of fraud or collusion, the council's determination as to rent will not be disturbed by the court.** § 377. Same subject. Most municipal corporations possess a large discretion concerning local improvements, as in the opening, grading and repairing of highways, streets and sidewalks, in respect to the time, manner and cost of the same, as well as in the establishment of sewers, drains or other sani- tary regulations, and urban necessities and conveniences generally. In the exercise of such discretion the courts and mode of payment of subserip- to render the erection of the build- tion to railroad stock held to be Ing and the raising of money discretionary with council; also, therefor illegal, same as to power to borrow 60. Chicago v. McKechney, 91 money. 111. App. 442; Lincoln St. Ry. Co. In Spaulding v. Lowell, 23 Pick. v. Lincoln, 61 Neb. 109, 84 N. W. (Mass.) 71, where a town built a 802. market house two stories high and 61. § 633 et seq. post. appropriated the lower story for a 62. Thomson-Houston Electria market, which was bona fide the Co. v. Newton, 42 Fed. 723. leading object In erecting the €3. Taylor v. McFadden, 84 building, it was held that the ap- Iowa 262, 50 N. W. 1070. propriation of the upper story to 64. Schanck v. New York, 69 N other subordinate purposes was Y. 444. not such an excess of authority as 828 Municipal Coepobations. ^377 will decline to interfere, where the authorities are acting within the scope of their powei's.^^ 65. Illinois. Brush v. Carbon- dale, 78 111. 74. Indiana. Fulton v. Cummings, 132 Ind. 453, 30 N. E. 949. Mnine. Hovey v. Mayo, 43 Me 322. Marylund. Methodist Prost. Ch. T Baltimore, 6 Gill. (Md.) 391. Missouri. Skinker v. Heman, 64 Mo. App. 441; Estes v. Owen, 90 Mo. 113, 2 S. W. 133; Farrar v. St. Louis, 80 Mo. 379; McCor- mack V. Patchin, 53 Mo. 33. New York. Wiggin v. New York, 9 Paige (N. Y. Ch.) 16, 23; Peo- I pie V. Supervisors Queens Co., 131 N. Y. 468. Wisconsin. Teegarden v. Racine, 56 Wis. 545, 14 N. W. 614. Discretion of municipal author- ities as to public improvements. Ordinarily courts will not inter- fere on the ground that a given improvement is unnecessary and that the* ordinance providing for it is, therefore, oppressive and unrea- sonable. Marionville to use v. Henson, 65 Mo. App. 397. , The passage of the ordinance is usually conclusive as to the neces- sity of the work. Seibert v. Tiff- any, 8 Mo. App. 33; Bohle v. Stan- nard, 7 Mo. App. 51. But Corrigan v. Gage, 68 Mo. 541, holds that an ordinance for a sidewalk in an uninhabited por- tion of the city and disconnected with any other street or sidewalk was unnecessary and oppressive, and such fact might be shown in an action on the special tax bill. ' Water course in highway. Ben- jamin V. Wheeler, 8 Gray (Mass.) 409. Repairs in roads and streets. Hovey v. Mayo, 43 Me. 322. Proceeding to compel city to cover open drain or canal of many years' standing, alleged to be a nuisance, denied. Inhabitants v. N«w Orleans, 14 La. Ann. 452. Had power, but neglected to abate nuisance; held private ac- tion against city would not He. K.elley v. Milwaukee, 18 Wis. 83; Leeds v. Richmond, 102 Ind. 372, 1 N. E. 711; Sullivan v. Phillips, 110 Ind. 320, 11 N. B. 300; Irving V. Ford, 65 Mich. 241, 32 N. W. 601; Louisville, etc. R. R. v. East St. Louis, 134 111, 656, 25 N. E, 962. Extending time (when it is not of the essence of the contract) within which an improvement may be made is discretionary. Jen- kins V. Stetler, 118 Ind. 275, 20 N. E. 788. So, what is "reasonable time." Fass v. Seehawer, 60 Wis. 525, 19 N. W. 533. "The city as a corporation, has control over the public places and highways within its bounds and it is the province of the corporation and not of a judicial tribunal, to determine what improvements shall be made In the streets and canals of the city." Inhabitants v. New Orleans, 14 La. Ann. 452. Courts may restrain municipal officers from exceeding their juris- diction, and require them to per- form such specific duties as the law imposes upon them. Attorney General v. Board, 64 Mich. 607, 31 N. W. 539; Coll v. Board, 83 Mich. 367, 47 N. W. 227; People v. Supervisors, 3 Mich. 475; Peo- ple V. Auditors, 13 Mich. 233 : Ten- nant v. Crocker, 85 Mich. 328, 48 N. W. 577. §377 Judicial Contbol. 829 The use of the municipal revenue, except that required for specified purposes, is usually subject alone to the discretion of the local authorities. "No court has a right to control that discretion," remarked the Supreme Court of the United States, "much less to usurp and supersede it. To do so in a single year would require a revision of the details of every estimate and expenditure, based upon an inquiry into all branches of the municipal service ; to do so for a series of years, and in advance, is to attempt to foresee every exigency and to provide against every contingency that may arise to affect the public neces- sities. ' ' ** And, finally, it may be stated broadly that this im- munity from judicial control embraces the exercise of all municipal powers, whether legislative or administrative, which are strictly discretionary. Ample illustration of the doctrine is contained in the cases in the notes and in other appropriate places throughout the work.®'' 66. East St. Louis v. U. S. ex rel. Zebley, 110 U. S. 321, 324, 4 gup. Ct. 21, 28 L. Ed. 162, per Mr. Justice Matthews. The determination of a city council as to whether a particular current expense of the city is rea- sonable and necessary, is not sub- ject to judicial review. Helena Water-works Co. v. Helena, 31 Mont. 243, 78 Pac. 220. "The law confides in the oflBcers of the municipality the discretion to determine how much money is required to carry on the affairs of the township, a discretion which the courts cannot supervise or control." Ward v. Piper, 69 Kan. 773, 77 Pac. 699. 67. Illustrations of non-judlcla! Interference in the exercise of discretionary powers. St. Louis V. Weber, 44 Mo. 547, regulating markets. Page V. St. Louis, 20 Mo. 136, involving illegal exemption by ordinance of special sewer tax. Lockwood v. St. Louis, 24 Mo. 20, proceeding to enjoin sale of personal property for payment of taxes illegally assessed. Case ex- plains Deane v. Todd, 22 Mo. 90. Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509 (and note), discretion as to fixing amount of license fee. Where city has no power to let a contract for lighting Its streets and public buildings for a term of ten years, the courts will inter- fere. Garrison v. Chicago, 7 BIs- sell (U. S. Cir. Ct.) 480. But held in Iowa that a contract for the use of certain rooms for city purposes for twenty years, to be paid by Issuing scrip, in the ab- sence of proof of fraud, would not be nullified by the judiciary, the 830 Municipal Cokpoeations. §377 The observation of Lumpkin, J., is appropriate: "These municipal corporations are the germ and minia- ture models of free government ; and their internal police and administration should not be interfered with for slight causes; not unless some great right has been withheld, or wrong perpetrated. ' ' ^* court saying: "In the absence of actual fraud, courts cannot inter- fere with the judgment and discre- tion of city councils in determin- ing what are and what are not suitable rooms for the purposes of the city and its ofllcers." Moses v. Risdon, 46 Iowa 251, 253. Power to purchase land for a poor-house, and make the neces- sary improvements, is not subject to judicial control at the suit of a taxpayer. Jones v. Pendleton County (Ky. 1892), 19 S. W. 740. So discretion in determining who are paupers and furnishing needed aid Is not subject to ju- dicial review. Christman v. Phil- lips, 58 Hun 282, 12 N. T. S. 338. Whether a city being only au- thorized to purchase such lands as might be necessary for the pur- poses of the corporation, could take lands outside of her limits not necessary for such purposes, "is a question that can only arise in a proceeding instituted by the state against the city for abusing her right to purchase lands." Chambers v. St. Louis, 29 Mo. 543, 576. Suit of private citizen to com- pel forfeiture of franchise granted by city denied. Hovelman v. K. C. H. R. R., 79 Mo. 632, 639. Failure of city to enforce con- tract as to sufficient pressure In water mains for Are purposes can- not be subject of private action. Boston S. D. £ T. Co. v. Salem Water Co., 94 Fed. 238. ■Borrowing money and issuing bonds. People v. Board of Super- visors, 131 N. Y. 468. Power of local authorities as to authorizing special election. Fries- ner v. Charlotte, 91 Mich. 504, 52 N. W. 19. Authority as to erecting, main- taining and repairing public build- ings. Kitchell V. Commissioners, 123 Ind. 540, 24 N. E. 366; Roten- berry v. Supervisors, 67 Miss. 470, 7 So. 211. "A municipal corporation is, for the purpose of its creation, a gov- ernment possessing to a limited extent sovereign powers, which, in their nature are either legislative or judicial, and may be denomi- nated governmental or public. The extent to which it may be proper to exercise such powers, as well as the mode of their exercise, by the corporation, within the limits prescribed by the law creating them, are, of necessity, entrusted to the judgment, discretion and will of the properly constituted authorities, to whom they are del- egated." Brinkmeyer v. Evans- ville, 29 Ind. 187. 68. State v. Swearingen, 12 Ga. 23, 25. § 378 JuDioiAii Control. 831 § 378. Limitation of rule of non- judicial interference. While the rule of non-judicial interference in the respects mentioned is well established, certain limitations are recognized. "Municipal corporations are not com- pletely beyond judicial review and control, even in the exercises of the jurisdiction and discretion delegated to them by the legislature. True, that discre- tion must and will be accorded broad scope and great deference. The honest judgment of the municipal authorities as to what is promotive of the public welfare must ordinarily control, although not in accord with the views of courts. Nevertheless the dele- gation of legislative power to subordinate political divis- ions of the state is solely for public purposes, and must be exercised with reference to them. If an, act be so remote from every such purpose that no relation thereto can, within human reason, be discovered, such act must be deemed excluded from the delegation. To that extent, then, courts will inquire into the purpose and policy of municipal conduct, and will hold unauthorized, and invalid, acts which are wholly unreasonable."*' The fact that ministerial acts are done by municipal authorities in form used to perform legislative acts, will not exempt or shield the same from judicial inquiry and control.'^" Although alluded to elsewhere, it may be again empha- sized that every corporate duty is .in the nature of a public trust and should be exercised for the general wel- fare. Moreover, private property and private rights will receive legal protection. Hence the universal rule: Wanton or unreasonable exercise of power, although discretionary, by corporate authorities, detrimental to public interest, or injurious to private rights, will be redressed by the judiciary, notwithstanding such powers clearly belonged to the municipal corporation and in the 69. LeFeber v. West Allis, 119 70. State ex rel. v. Gates, 190 Wis. 608, 613, 97 N. W. 203, 100 Mo. 540, 89 S. W. 881, 2 L. R. A. Am. St. Rep. 917. (N. S.) 152. 832 MumOIPAL COEPOEATIONS. §378 exercise of them no corruption or fraud appears J* Thus a power given to a municipal corporation to abate nuisances in any manner it may deem expedient is not an unrestricted power, for such means only are intended as are necessary for the public good. The abatement must be limited by its necessity, and no wanton or unnecessary injury to the property or rights of individ- uals must be committed.'''^ Notwithstanding the grant conferring the power is silent as to the mode and time of its execution, the public interest and the law always require a reasonable exercis? of municipal powersJ* 71. Indiana. VIncennes v. Citi- zens Gas Light Co., 132 Ind. 114, 31 N. E. 573. New Jersey. Cape May, etc. R. Co. V. Cape May, 35 N. .1. Eq. 419. Rhode Island. Place v. Provi- dence, 12 R. I. 1. Pennsylvania. Seitzinger v. Tamaqua, 187 Pa. St. 539, 41 Atl. 454. United States. Jackson County H. R. R. Co. V. Interstate Rapid Transit Co., 24 Fed. 306, 32 Am. & Eng. R. R. Cas. 216. When powers are conferred upon a municipal corporation for the public good, the exercise of such powers are not discretionary merely, but It is the duty of such municipal corporation to exercise them for the public good. The words "the council shall have power to" mean duty and obliga- tion. Cavender v. Charleston, 62 W. Va. 654, 59 S. B. 732. The power to supply a city with water is usually discretionary in so far as determining when the needs of the community require the supply, but in providing water the power cannot be so exercised as to create a corporate debt be- yond that limited by law, or to surrender or suspend legislative powers. Here, it was held that the execution of such contracts Is a ministerial act and may be en- joined, etc. Valparaiso v. Gard- ner, 97 Ind. 1, 3. 72. Babcock v. Buffalo, 56 N. Y. 268, where it was held that the filling up of a canal was not a proper exercise of the power to abate nuisances, and the city could be restrained from so doing. Sheldon, J., elaborately discusses the doctrine in 1 Buffalo Sup. Ct. Rep. 317, which opinion is af- firmed. 73. Kirkham v. Russell, 76 Va. 956, 961, holding void an ordinance as to time of election of certain city officers, the effect of which was to deprive a new council of the right to make the selection, the election having occurred only three days before the new coun- cil organized; distinguishing Nor- folk V. Ellis, 26 Gratt. (Va.) 224, and Fisher v. Harrisburg, 2 Grant's Cases (Pa.) 291. The § 379 Judicial Control, 833 Thus the reasonableness of the exercise of the power of a municipal corporation in fixing a stand for hacks and other vehicles, may be inquired into by the courts^* But ' ' what the legislature distinctly says may be done, cannot be set aside by the courts because they may deem it unreasonable or against sound policy."''^ Ordinarily the courts will not inquire into the motives that prompted the exercise of a discretionary power of a municipal legislative bodyJ" The classification of officers and employees by the mu- nicipal civil service commission is subject to judicial review^'' So the acts of a municipal corporation when transcend- ing its powers, i. e., destroying private property which is not a nuisance per se, are reviewable by the courts/* § 379. Same subject. As we have seen,'^' where legislative or dis- cretionary powers are conferred upon municipal corporations ordinarily the courts will not inter- fere, unless, in the exercise of such discretion. court said (p. 967) : "Such an is in such cases subject to review ordinance is not only unreason- by the courts on the point of rea- able; it is doubtless safe to say it sonableness. Scott v. Laporte, 162 is unprecedented. Surely, the leg- Ind. 34, 46, 68 N. E. 278, 69 N. E. islature, had it intended to confer 675. upon the council the power to 74. Ex parte Vance, 42 Tex. Cr. adopt it, would have said so clear- Rep. 619, 623, 62 S. W. 568. ly and unmistakably. That such 75. Chicago, etc. R. Co. v. Car- power was not, conferred appears Unville, 103 111. App. 251, 255. by the provisions of the charter in 76. Enders v. Friday, 78 Neb. respect to the terms and election 510, 111 N. W. 140; Goytino v. of officers generally." See dis- McAleer, 4 Cal. App. 655, 88 Pac. senting opinion on pp. 970-988. 991. Where the means selected of ex- 77. People ex rel. v. Wheeler, 56 ercising a given municipal power N. Y. Misc. 289, 106 N. Y. S. 450. has not been directly authorized, 78. Frostburg v. Wineland, 98 such means must be reasonable, Md. 239, 56 Atl. 811, 64 L. R. A. and the exercise of the discretion G27. on the part of the governing body 79. i 376 ante. 1 McQ.— 53 834 MuNICIPAIi COBPOEATIONS. § 379 there is fraud, manifest oppression or gross abuse.*" In the absence of such fraud, oppression or abuse, action on the part of the municipal authorities is conclusive upon the courts; hence, in such case the only question for judicial cognizance, according to certain decisions, is whether there has been aiiy violation of legal princi- ples or neglect of prescribed formalities in entering into the engagement which is the subject of the controversy.*^ The rule announced by judicial decisions appears to be that the fraud that will justify interference by the courts, is not that the power exercised has resulted in an indi- vidual hardship, in its execution, or that an individual burden has been imposed without a corresponding benefit conferred; but only in those cases when the act of the municipal body is so unreasonable, oppressive, and sub- versive of the rights of the citizen in the general purpose declared, as to indicate clearly and leave but one infer- ence, that of an attempted abuse rather than the legiti- mate use of a power enjoyed.*^ 80. People ex • rel. v. Grand ably judicial manner, their acts Trunk, etc. R. Co., 232 111. 292, -will not be interfered with, • • * 83 N. E. 839; Jones v. North unless the council is transcending Wilkesboro, 150 N. C. 646, 64 S. its powers, or some clear right has E. 866; Southern R. Co. v. Board been withheld, or wrong perpe- of Commissioners, 148 N. C. 220, trated or threatened." Crouch v. 61 S. E. 690. McKinney, 47 Tex. Civ. App. 54, 81. Ryan v. Paterson, 66 N. J. 104 S. W. 518. L. 533, 536, 49 Atl. 587. "Where the municipal leglsla- "When municipal corporations ture has authority to act, it must are acting within the powers or be governed, not by our discre- discretion vested In them by the tion but by its own, and we shall legislature, the courts cannot in- not be hasty in convicting It of terfere, unless fraud is shown or being unreasonable in the exercise the power or discretion is being of such authority." Scranton manifestly abused to the injury City v. Straff,' 28 Pa. Super. Ct. or oppression of the citizens." 258, 261. Kraft V. Board of Education, 67 82. Georgia. McMaster v N. J. L. 512, 51 Atl. 483; Coward Waynesboro, 122 Ga. 231, 50 S. E. V. Bayonne, 67 N. J. L. 470, 51 Atl. 122. 490. Indiana. CrawfordsvlUe v. Bra- "So long as the affairs of the den, 130 Ind. 149, 28 N. E. 849, 14 city are conducted in a reason- §379 Judicial Control. 835 Thus under power to act in a business or proprietary maimer, actions of the municipal legislative body will not be judicially reviewed on the ground that such action was imprudent, indiscreet or improvident.*^ So the courts will not interfere with a tax levy made by a mu- nicipal corporation within the limits of its authority.** Likewise a municipal corporation may operate its electric light plant in a manner which promises the greatest benefit to the city and inhabitants in the judgment of the city council ; and it is not within the province of the court to interfere with the reasonable discretion of the council in such matters.*^ In awarding city contracts, where there are no arbi- trary statutory regulations, a city council has a large measure of discretion. In reviewing such action the courts will only inquire into ihe good faith and honesty of its exercise.** While the acts of officials will be set aside on the ground of fraud or mistake,*'' every reasonable intendment of good faith and regularity will be indulged where they appear to have acted within the scope of their powers.** L R. A. 268, 30 Am. St. Rep. 21,4. Minnesota. Reed v. Anoka, 85 Minn. 294, 88 N. W. 981. Missouri. Heman v. Schulte. 166 Mo. 409, 417, 66 S. W. 163. New Jersey. Carling v. Jersey City, 71 N. J. L. 154, 58 Atl. 395. 83. Lincoln School Township v. Union Trust Co., 36 Ind. App. 113, 73 N. B. 623, 74 N. B. 272. 84. Mayfleld Woolen Mills v. Mayfield, 11 Ky. 172, 22 Ky. L. Rep. 1676, 61 S. W. 43; Mclnerney V Huelefeld, 116 Ky. 28, 25 Ky. L. Rep. 272, 75 S. W. 237. 85. Henderson v. Young, 119 Ky. 224, 26 Ky. L. Rep. 1152, 83 S. W. 583. 86. Ryan v. Paterson, 66 N. J. L. 533, 49 Atl. 587. 87. See Morse v. Westport, 136 Mo. 276, 37 S. W. 932; Fruln- Bambrick Construction Co. v. Geist, 37 Mo. App. 509; State v. Board of Public Works, 27 Minn. 442, 8 N. W. 161; State v. District Court, 33 Minn, 295, 23 N. W. 222, 88. St. Joseph to use of Gibson V. Farrell, 106 Mo. 437, 17 S. W. 497; Aurora Water Co. v. Aurora, 129 Mo. 540, 31 S. W. 946; Ruther- ford V. Hamilton, 97 Mo. 543, 11 S. W. 249; In re Episcopal School, 75 N. y. 324 836 Municipal Coepokations. § 380 § 380. Distinction between mandatory and discretionary powers. The law recognizes a distinction between mandatory and discretionary powers. Imperative or mandatory duties imposed on the municipality imply no discretion and may be compulsorily required. Whether the duty is discretionary or mandatory is always a question of char- ter or legislative intention, and each case must be decided largely on its own circumstances and the intention gath- ered from the nature of the power and the whole law relating to the subject. The general rule, as declared by the supreme court of Wisconsin, undoubtedly is that, where the power may be classed with the great mass of discretionary powers conferred upon municipal cor- porations to pass by-laws and ordinances relating to the government of the city, which powers are to be exercised according to the judgment of the authorities as to its necessity or expediency, it is not mandatory.** The supreme court of Nebraska well says that it ' ' some- times becomes a very grave question in the construction of statutes whether particular provisions are to be re- garded as mandatory or directory. It is, however, a familiar principle that statutes relating merely to mat- ters of convenience, or to the orderly and prompt con- duct of business, and not to the essence of the thing to be done, are generally considered as directory only; but this doctrine has been carried so far in some cases that it seems impossible to reconcile all the cases in which the question has been considered; and if equal force were given to each case found in the books, it would be a fruitless effort to attempt to fix any settled, discrim- inative point between a mandatory and a directorv statute." »" 89. Kelley v. Milwaukee, 18 Wis. ' affirmed as strongly as if ex- 83, 85. pressed. So, also, if by the 90. Hurford v. Omaha, 4 Neb. language used, a thing is limited 336, 349. to be done in a particular form "Affirmatives may, and often do, or manner, it includes a negative imply a negative of what is not that it shall not be done other- §381 Powers AS Mandatory OB DiscRETiONAEY. 837 § 381. Same subject. Where the law imposes the duty and gives the means of performing it, ordinarily its performance is compul- sory.^i It has often been judicially declared that what a public corporation or officer is empowered to do, and is beneficial to them to have it done, the law holds should be done.®* Thus where the rights of third per- sons are involved or the public good requires it, the words: "it shall be lawful" or "may," will be construed to mean "must" or "shall," and, therefore, the power mandatory.** But ordinarily where the language of the wise. Affirmative expressions that introduce a new rule imply a negative of all that is not within the purview." District Township V. Dubuque, 7 Iowa 262, 276. Per Wright, C. J. 91. Thus a city being by statute '"authorized and empowered to make proper provision for the sup- port of the poor," etc., cannot re- fuse to do so, as the law is man- datory. Veazie v. China, 50 Me. 518; Milford v. Orono, 50 Me. 529. 92. Mason v. Fearson, 9 How. (U. S.) 248, 259; Malcolm v. Rogers, 5 Cow. (N. T.) 188. 93. "In some cases where an authority is conferred in permis- sive language merely. It is still held to be imperative if third persons have an absolute right to have it exercised. But it is ob- vious that this principle cannot be applied to discretionary powers. For as soon as it is de^ termined that it is discretionary whether to exercise the authority, or not, It follows that there are no persons who have the right to insist on its exercise. To deter- mine whether such a power Is discretionary or not, the nature of the power Itself, and the rights of individuals in respect to its exer- cise must be looked at." Kelley v. Milwaukee, 18 Wis. 83, 85. Illustrative cases as to whether power is mandatory or discretion- ary. Word "may" construed as "must" or "shaU" when required. State (Kennelly) v. Jersey City, 57 N. J. L. 293, 30 Atl. 531, 26 L. R. A. 281; Blake v. P. & Co. R. R., 39 N. H. 435; King v. Derby, Skinner, 370. "May repair" a bridge held "shall" repair. Phelps v. Hawley, 52 N. y. 23, 27. Same as to sewer, where a stat- ute permissive in terms was con- strued as mandatory. New York V. Furze, 3 Hill (N. Y.) 612. Enabling statute held mandato- ry. People V. New York, 11 Abb. Pr. (N. Y.) 114. "It shall be lawful" and "may," construed as "shall." Mason v. Fearson, 9 How. (50 TJ. S.) 248, 259; Rex v. Barlow, 2 Salkeld 609. Laws providing for submitting question to vote of the people of Stock subscription to railroads. 838 Municipal Cobpoeations. §381 law is permissive in its nature and merely confers the power, unless the rights of third persons are involved or the public good requires it, the duty will be held discretionary. Many cases illustrating the general rules are given in the notes.** Other cases showing the views of the courts are stated and cited in various parts of this work. Steines v. Franklin County, 48 Mo. 167. "It is a power given to public oflBcers, and concerns the public interests and the rights of third persons, who have a claim de jure, that the power shall be exercised in this manner for the sake of justice and the public good." Leavenworth & D. M. R. R. Co. v. Platte County, 42 Mo. 171, 175. The language "that the city council shall be, and they are here- by empowered to elect an ofBcer to bo known as 'Recorder,' " etc., held mandatory. Vason v. Augusta, 38 Ga. 542. 545. When whole law construed to- gether, held mandatory, relating to sale of property. Hemmer v. Hustace, 51 Hun (N. Y.) 457. As when the exercise of power relating to extending or reducing municipal boundaries is manda- tory. Bee ch. 7 ante. 94. Various cases illustrating whether power is mandatory or discretionary. Under an act em- powering a city to make a sufficient number of reservoirs "to supply water in case of Are," it was held discretionary to construct, and, if constructed, also discretionary to maintain. Grant v. Erie, 69 Pa. St. 420, per Sharswood, J. Charter authority "to build and erect frgm time to time, as might become necessary, sufficient closed culverts in and over the common sewers established in the district," held discretionary. Carr v. North- ern Liberties, 35 Pa. St. 324. Power to remove obstructions and to widen, deepen and straight- en the Chicago River and its branches to their source, and to extend one mile Into Lake Mich- igan, conferred by charter of Chicago, held discretionary. Good- rich V. Chicago, 20 111. 445. Caton, C. J., remarked (p. 447): "The courts cannot discriminate and say, you shall remove this wreck, but you need not remove that sand bar, or deepen the river in another place, or straighten it in another. The law has either left it to the discretion of the com- mon council to say which of these acts the public good requires them to perform, or it is imperative that they shall perform all. * • • The very extent of the power con- ferred, and the magnitude and ex- pense of the work which they are authorized to perform, in refer- ence to this harbor, show that it was never the intention of the leg- islature to Impose the absolute ob- ligation upon the city to perform it all, and if not all, then no part was Imperative; for no authority is vested anywhere except in the commoji council of the city to § 382 Delegation oe Stjekendek of Poweks. 839 § 382. Public po\yers cannot be surrendered or delegated. The legal conception early obtained that the powers possessed by public and municipal officers "must be say what part it Is necessary, ex- pedient and proper that they Bhall perform." Courts cannot compel cities to open streets, notwithstanding the power and political obligation ex- ists to open such streets as the convenience of the community may require. Joliet v. Verley, 35 111. 68, 63. Authority delegated to do cer- tain thing, as subscribe to stock of railroads, which is entirely per- missive, as where the language is "shall have power," and no imper- ative injunction is contained' in the law compelling action, held to be discretionary. St. Joseph & Denver City R. R. Co. v. Buchanan County, 39 Mo. 485, 490, per Wag- ner, J. An act authorizing a town to erect a bridge across a canal which provided that when constructed, the bridge should be maintained, repaired (and if pivot bridges should be built), opened for the passage of boats by the corpora- tion, was held imperative, and the performance of the duties imposed could be compelled by mandamus'. Ottawa V. People ex rel., 48 111. 233. When "must" held discretionary, as applied to court. Spears v. New York, 72 N. Y. 442; Merrill v. Shaw, 5 Minn. 148. Provision as to publication of proceedings of council held direc- tory in Reed v. Louisville, 22 Ky. Law Rep. 1636, 61 S. W. 11. When "may'' not used in the sense of "shall." Ball v. Fagg, 67 Mo. 481. The true rule is this: "If from the whole context we gather that the statute was designed to impose the act on the officer as a duty to be performed, then the authority to do It is an obligation to do it. It has been said that when the public welfare demands it or pri- vate rights are affected then the power to act is a duty to act. But the private Interests, for the pro- tection of which the power will be construed to be a duty, must be such as exist independent of the grant of the power." State ex rel. v. St. Louis, 158 Mo. 605, 506, 59 S. W. 1101. "In respect to statutes, the rule of construction seems to be, that the word 'may' means 'must' or 'shall' only in case where public Interest and rights are concerned, and where the public or third per- sons have a claim de jure that the power should be exercised." Per Chancellor Kent in Newburgh Turnpike v. Miller, 5 John. Chan. (N. Y.) 100. When the word "may" construed as "shall" in statute relating to fees. State ex rel. v. King, 136 Mo. 309, 36 S. W. 681, 38 S. W. 80. When "may" as addressed to a public officer does not mean "shall," see In re Goddard, 94 N. Y. 544. 840 Municipal Cobpokations. ,382 viewed as public trusts, not conferred upon individual members for their own emolument, but for the benefit of the community over which they preside. ' ' ®* There- fore, the principle is fundamental and of universal appli- cation that public powers conferred upon a municipal corporation and its oflScers and agents cannot be sur- rendered or delegated to others.®* Thus where the taxing "The Interest which entitled- a private person to insist upon the execution hy an officer of a power conferred upon him, must he a definite and absolute legal right; a mere incidental benefit to accrue to him therefrom will not suflSce." Throop. Public OflScers, 549. 95. Glover, Mun. Corp., pp. 1, 3; Cooley's Const. Lim., 204, 205. 96. California. Thompson v. Board of Trustees, 144 Cal. 281, 77 Pac. 951; San Francisco Gas- light Co. V. Dunn, 62 Cal. 580; Menser v. Risdon, 36 Cal. 239; Oakland v. Carpentier, 13 Cal. 540; Chase v. City Treasurer, 122 Cal. 540, 55 Pac. "414; Knight v. Eu- reka, 123 Cal. 192, 55 Pac. 768. Illinois. People v. Clean Street Co., 225 111. 470, 80 N. E. 298; Chicago Medical Soc. v. South Park Comrs., 150 111. App. 564. Kentucky. Bowling Green v. Gaines, 29 Ky. L. Rep. 1013, 96 S. W. 852. Maryland. Baltimore v. Gahan, 104 Md. 145, 64 Atl. 716. Michigan. Gale v. Kalamazoo, 1 Mich. N. P. 5, 9. Minnesota. Hennepin County v. Robinson, 16 Minn. 381. Missouri. Gushing v. Fleming, 151 Mo. App." 471, 132 S. W. 52; Edwards v. Kirkwood, 147 Mo. App. 599, 127 S. W. 378. New Hampshire. Attorney-Gen- eral V. Lowell, 67 N. H. 198, 38 Atl. 270. New Jersey. Schwartze v. Cam- den, 77 N. J. Eq. 135, 75 Atl. 647. .New York. Lyon v. Jerome, 26 Wend. (N. Y.) 485, 498; Toppan V. Young, 9 Daly (N. Y.) 357. Ohio. Ampt v. Cincinnati, 17 Ohio Cir. Ct. 616. Pennsylwinia. Kittanning Elec- tric Light, etc. Co. v. Kittanning, 11 Pa. Super. Ct. 31. United States. Continental Con- struction Co. V. Altoona, 92 Fed. 822, 35 C. C. A. 27; Clark v. Wash- ington, 12 Wheat. (25 U. S.) 40, 54. A city's legislative authority cannot he construed as conferring upon it power to enlarge, diminish or vary in any substantial manner its municipal functions by ordi- nance. Jefferson City v. Court- mire, 9 Mo. 692. A partial surrender of public • powers is void. Third Municipality of New Orleans v. Ursuline Nuns, 2 La. Ann. 611. There is no presumption that the grant of a legislative power to a municipal corporation authorized its surrender. National Water- works Co. V. Kansas City, 20 Mo. App. 237. §382 Delegation of Powers. 841 power is committed to tlie "corporate authorities" it cannot be exercised by others.*'^ So the power to contract for the erection of public buildings cannot be surrendered to private individuals.^® So a municipal corporation has no power to convey a bridge erected by it to a trustee by deed of trust, authorizing the charging of toll thereon and pledging the bridge and toll collected thereon for the payment of the debt created for its construction.®* So a city authorized by its charter to erect, repair and regulate public wharves, and to fix the rate of wharfage thereat, cannot lease its wharf, or farm out its revenue, or empower any one else to fix the rates of wharfage; and a contract whereby a city undertakes to do these things is void.^ In every case where the law imposes a In Herford v. Omaha, 4 Neb. 336, at page 350, the supreme court of Nebraska formulates cer- tain propositions in order to de- termine whether the power is mandatory or discretionary. Requirements as to time of re- vision of ordinances, and publica- tion of digest thereof, held direc- tory. Whalln V. Macomb, 76 111. 49, 51; Lowrey v. Lexington, 24 Ky. L. 516, 68 S. W. 1109. As to when powers relating to public improvements as the con- struction of sewers, streets, etc., are discretionary or mandatory, see chapter on Public Improve- ments. As to enforcement of ordinances and by-laws, see chapter on Torts. 97. The "corporate authorities" has been held to include those who are either directly elected by the population to be taxed, or appoint- ed In some mode to which they have given their assent. Harward V St. Clair D. Co., 51 111. 130; Hessler v. Drainage Com., 53 111. 105; Cornell v. People, 107 111. 372; WethereU v. Devlne, 116 111. 631, 6 N. E. 24. 98. Russell v. Cage, 66 Tex. 428, 1 S. W. 270. 99. MuUarky v. Cedar Falls, 19 Iowa 21. 1. Matthews v. Alexandria, 68 Mo. 115. The power of a municipal cor- poration to regulate and fix rates to be charged by corporations for services rendered the public, can- not be surrendered or contracted away, unless the municipal corpo- ration be authorized by constitu- tional or statutory provision. Brummitt v. Ogden Water-works Co., 33 Utah 285, 93 Pac. 828. Power to construct piers cannot be abrogated or restricted. Whit- ney V. New York, 6 Abt). N. C. (N. Y.) 329. 842 Municipal Cobpoeations. § 382 personal duty upon an officer in relation to a matter of public interest, he cannot delegate it to others, as by sub- mitting it to arbitration.^ Contracts and ordinances relating to any municipal function which embarrass in any way the power of regu- lation of public affairs are ultra vires ; for the municipal corporation cannot in any manner divest itself of its power to control and regulate at all times everything within the domain of its jurisdictiob.. The adjudications present numerous instances of ordinances and contracts in derogation of the police powers which are uniformly declared void under this principle. Such powers belong emphatically to that class of objects which demand the application of the maxim salus populi suprema est lex; and they are to be attained and provided for by such appropriate mean's as the discretion of those who officially represent and act for the municipal corporation may devise from time to time. "The discretion can no more be bargained away than the power itself."* Therefore, when the city, within its charter powers, grants fran- chises for the use of its streets, wharves, parks and other places for public purposes, the right of control and regu- lation on the part of the municipal authorities must be reserved so that it may be exercised at any time for the public good. The doctrine is fully illustrated by the numerous cases in the note.* 2. Mann v. Richardson, 66 111. Sherlock v. Kansas City Belt Ry. 481. Co., 142 Mo. 172, 43 S. W. 629; 3. Beer Company v. Massachu- State ex rel. v. Murphy, 134 Mo. setts, 97 U. S. 25, 33; Boyd v. 548, 31 S. W. 784, 34 S. W. 51, 35 Alabama, 94 U. S. 645, 24 L. Ed. S. W. 1132. 302. A contract that In the future a 4. Cases Illustrating that pub- street shall not be opened or ex- ile powers cannot be surrendered tended In a designated part of the or delegated. The following cases city has been adjudicated to be an well illustrate the text: Glasgow abrogation of legislative powers V. St. Louis, 87 Mo. 678, 15 Mo. and therefore ultra vires. In re App. 112; Lockwood v. Wabash R. opening of First Street, 66 Mich. R. Co., 122 Mo. 86, 26 S. W. 698; 42, 33 N. W. 15. §383 Delegation of Powees. 843 § 383. Powers and duties imposed upon particular depart- ments or officers cannot be delegated. The duties and powers imposed upon the mayor, desig- nated departments and officers are considered in the nature of public trusts and cannot be delegated or sur- Clty cannot alienate power to Improve streets. Roanoke Gas Co. V. Roanoke, 88 Va. 810, 14 S. E. 665. Where a city has the right to lease a part of its wharf for the purpose of a warehouse and grain elevator, it must reserve the right to terminate such lease whenever the public interest demand such action. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 101 Mo. 192, 13 S, W. 822. Henry, J., in Belcher Sugar Re- fining Co. V. St. Louis Grain Ele- vator Co., 82 Mo., at page 126, said: "In order to meet the de- mands of commerce, and the changed methods of handling grain and other products the city may license the erection of ele- vators and warehouses in connec- tion with them, upon the unpaved portion of the wharf, without vio- lating the rights of the owners of the fee, hut has no right to lease any portion of it for a term of years without a reservation of the right to cancel the lease, when- ever it should become necessary to pave and exend the wharf so leased. No right to authorize the election of such buildings as that which it is alleged the defendant is about to erect upon the wharf, without reserving a control over the building, and the uses to Which It may be applied," See Matthews v. Alexandria, 68 Mo. 115. The imposition of a tax on poles erected or maintained in highways is a power of which a municipality cannot divest itself for any period of time by ordinance or contract. Seitzinger v. Tamaqua, 187 Pa. St. 539, 41 Atl. 454; McKeesport v. M. & R. P. Ry. Co., 2 Pa. Sup. Ct. 242. A city has no power to enter into a contract which interferes with its duties to preserve the health and morals of the city. Louisville v. Wible, 84 Ky. 290. It may, therefore, defeat the title of its own grantee when it becomes necessary to do so in order to abate a nuisance or preserve the public health. Western Sav. Fund. Soc. V. Phila., 31 Pa. St. 175, 182; Presbyterian Church v. New York, 5 Cowen (N. Y.) 538, 542. "If one portion of the legislative power may be sold, another may be disposed of in the same way. If the power to raise revenue may be sold to-day, the power to punish for crimes may be sold to-morrow, and the power to pass laws for the redress of civil rights may be sold the next day. If the legislative power may be sold, .the executive and judicial jwwers may be put in the market with equal propriety The result to which the principle must inevitably lead proves that 844 Municipal Coeeokation-s. §383 rendered to other officers or departments." Thus, where the charter imposes upon the mayor the duty to examine and pass upon bills of the legislative branch, in order to decide whether they should be approved or vetoed, such duty cannot be delegated to another, as, for example, the clerk, for the duty calls for the exercise of judgment and experience.® So the power to establish the sale of any portion of govern- mental powers is utterly inconsist- ent with the nature of our free Institutions, and totally at vari- ance with the object and general provisions of the Constitution of the state. * • * It is a question of constitutional authority, and not a case of confidence in the fidelity of the legislature. Limita- tions of power established by writ- ten constitutions have their origin In a distrust of the infirmity of men. That distrust is fully justi- fied by the history of the rise and fall of nations." Mott v. Pa. R. R. Co., 30 Pa. St. 9, 27, 28; Penn. R. R. Co. V. Riblet, 66 Pa. St. 164, 168; Boyd v. Alabama, 94 U. S. 645, 650. Hence, the state or its duly au- thorized municipality may compel a street . railroad company to do whatever is required for the health, safety and welfare of the community, for the plain reason that the authority to enact meas- ures for this purpose can never pass from the sovereign no matter what grants it may make. St. Louis & S. F. Ry. Co. v. Gill, 156 U. S. 649, 657: Elliott on Roads and Streets, 573. An agreement of an official to permit one to whom the city has granted a right to lay out a high- way to lands owned by him, to defend an injunction suit growing out of the grant, in the name of the officers of city, provided he would save the city harmless, etc., is void as a delegation of discre- tionary power. Shelby v. Miller, 114 Wis. 660, 91 N. W. 86; State v. Geneva, 107 Wis. 1, 82 N. W. 550. Reasons for rule. Winter v. •Kinney, 1 N. Y. 365; Webb v. Al- bertson, 4 Barb. (N. Y.) 51. The grant of a right to a rail- road company to construct and use tracks across certain streets, provided in the opinion of the board of public improvements, un- der the St. Louis charter, the con- struction of such track is prac- ticable, held not to be a delegation of legislative power. Seibel-Suess- dorf Copper, etc. Co. v. Manufac- turers R. Co., 230 Mo. 59, 130 S. W. 288. 5. Oakland v. Carpenter, 13 Cal. 540, 545; State v. Fiske, 9 R. L 94. Delegation of power to construct foot pavement, void. Whyte v. Nashville, 2 Swan. (Tenn.) 364. 6. Lyth V. Buffalo, 48 Hun (N. Y.) 175. City council cannot devolve a power conferred upon it on the clerk. Durant v. Jersey City, 2o N. J. L. 309. § 383 Delegation of Powees. 845- pounds and to appoint pound keepers conferred upon commissioners cannot be delegated to another officer or person^ So where a charter prescribes that designated officers "shall authenticate all special tax bills," which duty requires the exercise of judgment and discretion, this duty cannot be performed by others.* Where the charter requires the concurrence of two des- ignated boards for the making of any improvement or the doing of any work or procuring any materials, a rati- fication by one of the boards of an order for work done in repairing a public sewer by the street and sewer commis-- sioner, by approval of the bill presented therefor, is not sufficient to bind the city.® So where the mayor and alder- men must select the sites for public markets, the architect and plans; and commissioners are required to make pur- chases and contracts, a resolution appointing the commis- sions to purchase a site and build a public market is void.^" So where certain duties are conferred upon the council and chief engineer of the fire department, they cannot be delegated by ordinance or otherwise to a fire faoard.^^ So the determination of the kind of material with which streets shall be paved or sewers constructed, and the manner and time in which such work shall be done, conferred upon particular officers, boards or de- partments, cannot be delegated." So where the law con- fers upon the council, in conjunction with the board of education, power to purchase a site for school purposes, 7. Dillard v. Webb, 55 Ala. 468. Power of fire department to 8. Stifel V. Southern Cooperage compel the erection of fire escapes Co., 38 Mo. App. 340; McQuiddy v. cannot be delegated. N. Y. Plre Vineyard, 60 Mo. App. 610, 618; Department v. Sturtevant, 33 Hun Eyerman v. Payne, 28 Mo. App. 72, (N. Y.) 407. 77; Heman v. McLaren, 28 Mo. 12. King-Hill Brick Mfg. Co. v. App. 654. Hamilton, 51 Mo. App. 120, 125; 9. Keeny v. Jersey City, 47 N. St. Joseph v. Wilshire, 47 Mo. App. J. L. 449, 1 Atl. 511. 125; Galbreath v. Newton, 30 Mo. 10. State (Danforth) v. Pater- App. 380. son, 34 N. J. L. 163. This subject is more fully con- 11. Benjamin v. Webster, 100 sidered and Illustrated in the chap- Ind. 15. ter on Public Improvements. 846 Municipal Coepobations. § 384 such authority cannot be delegated to the board of public works.^^ So where the organic law vests the power of appointment of an attorney in the council, it cannot be transferred to the mayor by ordinance or otherwise.^* As appears in various parts of this work, mere minis- terial duties may be delegated,^* but the general rule is that, if from the nature of thiags to be done, the officer is required to perform duties involving the exercise of discretion and judgment, he cannot in any manner dele- gate them.i® The question as to where the specific duty rests is one of construction. Usually, where the powers are conferred upon the municipal corporation, without particular desig- nation, the power may be exercised by the corporation itself. Nor can the city relieve its officers from discharging their regular duties, as by contracting by ordinance or otherwise with another to perform part or all of such duties." § 384. Legislative authority cannot be delegated. The adjudications present various illustrations of the rule everywhere established that legislative authority cannot be delegated.** Under state constitutions the 13. Lauenstein v. Pond du Lac, McQuiddy v. Vineyard, 60 Mo. App. 28 Wis. 336. 610; Lynch v. Forbes, 161 Mass. 14. East St. Louis v. Thomas, 302, 37 N. E. 437, 42 Am. St. Rep. 11.111. App. 283; Bryan v. Page, 51 402; State (Danforth) v. Paterson, Tex. 532, 535. 34 N. J. L. 163. Where the charter confers upon 17. Carroll v. St. Louis, 12 Mo. the council the power to appoint 444; Gurley v. New Orleans, 41 and remove certain subordinates La. Ann. 75, 5 So. 659; Butler by majority vote, the council can v. Sullivan County, 108 Mo. 630, not by ordinance or otherwise de- 18 S. W. 1142. prive itself of this power. State 18. California. Ex parte Grey, (Volk) v. Newark, 47 N. J. L. 117. 11 Cal. App. 125, 104 Pac. 476; 15. § 387 post. Smith v. Morse, 2 Cal. 524. 16. Crutchfleld v. Warrensburg, Louisiana. State v. Shreveport, 30Mo. App. 456; Stifel v. Southern 124 La. 178, 50 So. 3. Cooperage Co., 38 Mo. App. 340; § 384 Delegation of Legislative Authority. 847 power to make laws, conferred upon the legislatures, may not be delegated to the people of the state or any portion of them.i® The only apparent exception in this respect is the power of legislation possessed by the municipal corporation. In legal language this authority is said to, be delegated by the state.^" "There is a clear distinction to be observed between legislative and ministerial powers. The former cannot be delegated ; the latter may. Legislative power implies judgment and discretion on the part of those who con- fer it."" Duties required to be performed by ordinance are leg- islative and cannot be delegated.^^ So the fixing of the time when and within which public work is to be done is a legislative function and cannot be delegated to the city engineer.^^ There is a distinction between the delegation of power to make a law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursu- Maine. Biddeford v. Yates, 104 19. Ex parte Wall, 48 Cal. 279, Me. 506, 72 Atl. 335. 313. Maryland. Baltimore v. Scharf, 20. Lammert v. Lldwell, 62 Mo. 54 Md. 499; Northern Central Ry. 188; State ex rel. v. Pond, 93 Mo. Co. V. Baltimore, 21 Md. 93. 606, 6 S. W. 469 ; State ex rel. v. Minnesota. In re Wilson, 32 Francis, 95 Mo. 44, 8 S. W. 1; State Minn. 145, 148, 19 N. W. 723. v. Patrick, 65 Mo. App. 653; St. State ex rel. v. Young, 29 Minn. Louis v. Russell, 116 Mo. 248, 22 474, 551, 552, 9 N. W. 737, leaving S. W. 470; Cooley's Const. Lim. to court when act shall take effect, (5th Ed.), 139, 140. void. 21. Per Wagner, J., in Ruggles New Jersey. Riley v. Trenton, v. Collier, 43 Mo. 353, 365. 51 N. J. L. 498, 18 Atl. 116. Such powers cannot be vicari- Missouri. State v. Field, 17 Mo. ously exercised. Matthews v. Alex- 529, 59 Am. Dec. 275; State ex rel. andrla, 68 Mo. 115; Thompson v. V. Haynes, 72 Mo. 377; State ex Boonville, 61 Mo. 282. rel. v. Murphy, 134 Mo. 548, 31 22. Unionville v. Martin, 95 Mo. S. W. 784; Chillicothe v. Brown, App. 28, 68, S. W. 605. 38 Mo. App. 609; Kansas City v. 23. Ayres v. Schmohl, 86 Mo. Cook, 38 Mo. App. 660; Unionville App. 349, 352. V. Martin, 95 Mo. App. 28, 36, 68 S. W. 605. 848 Municipal Coepobations. § 385 ance of the law. The first cannot be done legally, but there is no objection to the latter.^* To illustrate : power as to locating the foundations and walls of a subway, pro- vided for by ordinance, may be properly delegated by the city council to city officials.^^ So an ordinance for- bidding the explosion of firecrackers, Eoman candles, etc., in city limits "without the written consent of the mayor specifying the time and place, ' ' was held not to be a delegation of legislative power. "It was a mere cautionary clause, to the end that such matters might be supervised by the executive officers of the city. It was no more a delegation of legislative power than is the common municipal mode of restraining the carrying of fire-arms except by written permission of the mayor. ' ' ^^ § 385. Seime — illustrations. In the construction of sewers, where the charter re- quires the dimensions to be determined by ordinance (the enactment of which is essentially a legislative act), an ordinance leaving this matter to be decided by a city officer is bad.^'^ So where the charter imposes the duty upon the council to determine the manner in which an improvement, as a street, shall be made, such duty cannot be delegated by ordinance to a city officer or the street committee of the 24. People v. Grand Trunk, etc. delegated. Koeppen v. Sedalia, 89 R. Co., 232 111. 292, 83 N. E. 839, Mo. App. 648. citing Sutherland, State Constitu- Power of council to construct tion, p. 611. sewer cannot be delegated to san- 25. People ex rel. v. Grand itary engineer. Lowery v. Lexing- Trunk, etc. R. Co., 232 111. 292, ton, 25 Ky. Law Rep. 392, 75 S. 83 N. E. 839. W. 202. 26. Centralia v. Smith, 103 Mo. A city council Is without power App. 438, 440, 77 S. W. 488. to delegate to the city engineer 27. St. Louis to use v. Clemens, the authority to establish sewers 52 Mo. 133, 43 Mo. 395; Sheehan and to provide plans and means V. Gleeson, 46 Mo. 100. for their construction. Neill v, Power to grade street cannot be Gates, 152 Mo. 585, 54 S. W. 460. § 385 Delegation of Legislative Authoeity. 849 council.^* So the power conferred by charter upon the council "to erect lamps, and to provide for lighting the city," and "to create, alter and extend lamp districts," cannot be delegated to a committee of the council, so that the determination of the committee will be final, either as to erecting new lamps, or discontinuing those already established.^^ The power to grant a franchise to construct and operate street railroads, conferred on the council, must be made by ordinance directly, hence such authority to make the grant cannot be delegated by the council to any officer or board.^" Under particular charters it is held that the power or discretion of fi:xing fines by money or imprison- ment for violation of ordinances is a legislative power and cannot be delegated to the courts ; it must be specified in the ordinance.^! Where the assessment and rating of taxes is required to be done by the council, an apportion- ment made by the clerk in pursuance of resolution of the council, in the absence of council confirmation thereof, is invalid.*^ So an ordinance giving the^ property owners of a block the right to say whether a livery stable shall be located in such block — such power being imposed by charter upon the legislative body — is void.** So an ordi- 28. Thompson v. Schermerhorn, 30. State ex rel. v. Bell, 34 Ohio 6 N. Y. 92, 96, followed in Bird- St. 194. sail V. Clark, 73 N. Y. 73, 29 Am. 31. Tomlin v. Cape May, 63 Rep. 105, reversing 7 Hun 351; N. J. L. 429, 44 Atl. 209; Melick Baltimore v. Scharf, 54 Md. 499. v. Washington, 47 N. J. L. 254; When park board may determine State v. Zeigler, 32 N. J. L. 262. material for sidewalks, etc. Turn- But see ch. 17 post. er V. Detroit, 104 Mich. 326, 62 32. Davis v. Read, 65 N. Y. N. W. 405. 566. A city council may adopt a city 33. St. Louis v. Russell, 116 code compiled by the city attorney. Mo. 248, 22 S. W. 470, 20 L. R. as the adoption, not the compila- A. 721, and note, tion, is the legislative act. West- Contra, State ex rel. v. Beattie, em & A. R. Co. v. Young, 83 Ga. 16 Mo. App. 131. 512, 10 S. B. 197. In Chicago v. Stratton, 162 111. 29. Minneapolis Gas-Light Co. 494, 44 N. B. 853, 53 Am. St. Rep. V. Minneapolis, 36 Minn. 159, 30 325, 35 L. R. A. 84, affirming 58 N. W. 450. 111. App. 539, an ordinance forbid- 1 McQ.— 54 850 Municipal Coepoeations. § 386 nance making it a misdemeanor to operate a slaughter house within three hundred feet of a dwelling house, without the written consent of the occupant, is invalid, as attempting to substitute for the sanction of the law the written consent of one or more individuals.^* So where the charter^ or law applicable, commits to the legislative body of the corporation the exclusive authority to provide, by ordinance, additional oflSees, situations and places of employment in the municipal service and fix the compensation as in its legislative discretion the demands of the several offices or departments may require, such power cannot be delegated in whole or in part.^" This point is sufficiently treated elsewhere.*" § 386. Same subject. Local police regulations are usually made by ordi- nance, and the power to enact such ordinances is vested in the legislative department. But in Massachusetts it has been held that the state legislature may authorize a city council to empower a police board to regulate the uses of streets in certain respects.*'' So by authority of state law, the New Jersey courts hold that certain of the ding the location in any block In Swift v. People, 162 111. 534, re- ■whlch two-thirds of the buildings versing 60 III. App. 395. are residences unless the owners ' Laundry ordinance case, 7 Saw- of a majority of the lots consent in yer (TJ. S.) 526; Ex parte Sing writing, was held reasonable. The Lee, 96 Cal. 354, 31 Am, St Rep. court distinguished the Russell 218. case. The ordinance related only 34. St. Louis v. Howard, 119 to certain residence districts Mo. 41, 24 S. W. 770. which are clearly defined "within 35. The power of the legisla- such specified districts the city ture imposed by the state Constl- council undoubtedly has the pow- tution to regulate the compensa- er to prohibit or forbid the loca- tion of all county officers cannot tion of livery stables, and having be delegated to the county super- the power of total prohibition visors. Dougherty v. Austin, 94 within these districts, it may im- Cal. 601, 29 Pac. 1092. pose such conditions and restric- 36. Ch. 12 post. tions in relation to these limited 37. Commonwealth v. Plalsted, areas as it may see fit." 148 Mass. 375, 19 N. E. 224. § 386 Delegation of Powers. 851 local police power may be delegated to the excise de- partment of the city.3* Where the power to license and fix the rates therefor is vested in the council it cannot be delegated to the mayor or other officer.^* A provision in an ordinance that, "any person desiring to sell by sample in said city may, by paying to the city treasurer the sum of five dol- lars for every three days, obtain a license from the city clerk," etc., was held void because it delegates to the licensee the power to determine the time for which the license shall be granted.*" An ordinance authorizing a city clerk to issue a license, provided that the applicant has complied with the law, and who shall not be in arrears for license for any previous year, was held valid against the objection that it conferred judicial powers upon the clerk.*^ The power vested in the council to regulate streets can- not be delegated, by ordinance regulating street proces- sions, by conferring upon a police officer discretionary powers as to issuing permit therefor.*^ A charter provision which requires a recommendation from a board of park commissioners prior to the estab- lishment of a park by ordinance by the municipal council, does not delegate legislative power to such board. Such a provision confers no power on the board to legislate, 38. state (Riley) v. Trenton, As to delegation to police board Bl N. J. L. 498, 18 Atl. 116; State of power to license itinerant musl- (Paul) V. Gloucester County, 50 cians, see Commonwealth v. N. J. L. 585, 15 Atl. 272. Plaisted, 148 Mass. 375, 19 N. E. 39. East St. Louis v. Wehrung, 224. 50 111. 28 ; Naegle v. Centralia, 81 40. Darling v. St. Paul, 19 Minn 111. App. 334; State Center v. Ba- 389. renstein, 66 Iowa 249, 23 N. W. 41. Baker v. Lexington, 21 Ky. 652; Thurlow Medical Co. v. Sa- Law Rep. 809; 53 S. W. 16. lem, 67 N. J. L. Ill, 50 Atl. 475; See chapter on license tax and State V. Flske, 9 R. I. 94; Lord ordnances relating thereto. V. Oconto, 47 Wis. 386, 2 N. W. 42. Chicago v. Trotter, 136 IlL 785. 430, 26 N. E. 359. 852 MtlNICIPAI, COEPOEATIONS. § 387 but simply imposes a limitation on the council. TJntil the council acts no park can be established.*^ Some charters limit the legislative power by prescrib- ing that all improvement ordinances shall originate with certain boards or officers.** § 387. Ministerial duties may be delegated. The rule forbidding the delegation of power, stated and illustrated in prior sections, does not apply to the per- formance of purely ministerial duties. Such duties may be delegated.*^ The law has always recognized and emphasized the distinction between instances in which a discretion must be exercised by the officer or department or governing body in which the discretion is vested, and the perform- ance of merely ministerial duties by subordinates and agents.*" Therefore, the appointment of agents to carry out the authority of the council is entirely competent and does not violate the rule delegatus non potest delegare." Thus the council may create committees or other bodies to investigate given matters, to procure information, to 48. Kansas City v. Bacon, 147 vessels at such wharf," which was Mo. 259, 283, 48 S. W. 860. See held valid, dissenting opinion, pp. 301-309. 46. Harcourt v. Asbury Park, 44. See chapter on Public Im- 62 N. J. L. 158, 40 Atl. 690; Ed- provements. wards v. Watertown, 61 How. Pr. 45. Gillett V. Logan County, 67 (N. Y.) 463; Hannibal & St. J. 111. 256, 258; McClaughry v. Han- R. R. Co. v. Marion Co., 36 Mo. cock County, 46 111. 356; Alton v. 294; Neill v. Gates, 152 Mo. 585, Mulledy, 21 111. 76; Edison Electric 594, 54 S. W. 460. Light, etc. Co. v. Bloomquist, 110 "Ministerial functions are those Minn. 163, 124 N. W. 969, 125 N. that are absolute, fixed and cer- W. 895; Schwartze v. Camden, 77 tain. In the performance of which ti. J. Eg. 135, 75 Atl. 647. the board or officer exercises no Gregory v. Bridgeport, 41 Conn, discretion whatever." Jewell Belt- 76, 19 Am. Rep. 485, involving an ing Co. v. Bertha, 91 Minn. 9, 11, ordinance creating position of su- 97 N. W. 424. perintendent of wharves and giv- 47. Northern C. Ry. Co. v. Bal- ing him "full power to order and tlmore, 21 Md. 93; State v. Atlan- regulate • • * the mooring of tic City, 34 N. J. L. 99, 108, § 387 Delegation of Ministebiai, Duties* 853 make reports and recommendations, and not exceed its power in the manner under consideration,** but the coun- cil alone must finally determine the Subject committed to its discretion and judgment.*^ To illustrate : Although the charter power imposed upon the council to issue, negotiate and sell municipal bonds cannot be delegated to the city treasurer, or any other officer or person, either by ordinance, resolution or otherwise, if the sale of the bonds is negotiated by the city treasurer under proper ordinance, resolution or other appointment, designat- ing him by name for that purpose, his acts are simply those of an agent of the council.^" So the council may authorize the mayor to make a con- tract which the council alone is authorized to make, and afterwards ratify such contract and take action, as in issuing bonds, in pursuance of it. In such case the mayor merely acts as the instrument or amanuensis of the coun- cil. It is through him that the contract is made. The council by ratification finally determines and thus fulfills the duty imposed by law.^^ So where the council has sole power to cause sidewalks to be constructed, it may, by ordinance, authorize the mayor and chairman of com- mittee on streets and alleys to make, in its behalf and pursuant to its directions, a contract for doing the work, and afterwards approve and ratify such contract.^^ So 48. Burlington v. Dennison, 42 Tie work," certain details of the N. J. L. 165; Dancer v. Manning- work may be submitted to the su- ton, 50 W. Va. 322, 40 S. B. 475. perintendent of streets for ap- 49. Ch. 13 post. r-roval. Haughawout v. Hubbard, 50. State ex rel. v. Hauser, 63 131 Cal. 675, 63 Pac. 1078. Ind. 155, 178. " 52. "If the city council has law- 51. As stated by the court In ful authority to construct the side- this case: "There can be no doubt v'alks, involved in it was the right that his (mayor's) act should be to direct the mayor, and the chair- regarded as that of the common nan of the committee on streets council." Evansville, I. and C. S. and alleys, to make a contract on L. R. R. Co. v. Evansville, 15 Ind. behalf of the city for doing the 395, 418; Peterson v. New York, work. We spend no time in vindi- 17 N. Y. 449, per Denio, J. eating this prorosition. It is true, Where the law requires an or- the council could not delegate all dlnance or resolution "describing the power conferred upon It by 854 Municipal Cobpobations, §387 the Council by ordering a sidewalk raised to a level, to correspond with the level established by work that had been completed on walks on the same street, does not by committing the execution of the work to the street com- mittee delegate to such committee its discretionary power in the premises.^* Further illustrations of the doctrine appear in the cases in the notes." the legislature, but like every other corporation, It could do Its ministerial work by agents. Noth- ing more was done In this case. • * • There was no unlawful delegation of power. But, If there had been, the contract was ratified by the council after It had been made." Per Mr. Justice Strong, in Hitchcock v. Galveston, 96 U. S. 341, 348. 53. Harrisonburg v. Roller, 97 Va. 582, 34 S. E. 523. Work that may be done by coun- cil committees, the manner of do- ing It, reports, etc., is treated in chapter 13 post. 54. Illustrations of delegation of ministerial duties. A munici- pal corporation may appoint agents, or committees and Invest them with ministerial or adminis- trative duties. Dancer v. Man- nington, 50 W. Va. 322, 327, 40 S. E. 475; Marr v. Mannington, 50 W. Va. 328, 40 S. E. 1039. The question is, does the coun- cil invest the committee with min- isterial or discretionary power. Biddeford v. Yates, 104 Me. 506, 72 Atl. 335. Where a municipal corporation assumes by ordinance an indebt- edness it can delegate the duty of taking up the warrants evidencing such Indebtedness and Issuing new ones in their stead. State v. Win- ter, 15 Wash. 407, 46 Pac. 644. An ordinance making It a mis- demeanor to excavate in any street without first securing a permit from the city clerk, does not del- egate legislative power, the issu- ing of the permit being merely a ministerial duty. Carthage v. Gar- ner, 209 Mo. 688, 108 S. W. 521; An appropriation by a munici- pal corporation to a police relief fund of a sum of money Is not void because the distribution of the fund was left to the relief as- sociation. Commonwealth ex rel. V. Walton, 182 Pa. St. 373. 38 Atl. 790, 61 Am. St. Rep. 712.' In a contract for the purchase of hose by a municipal corporation there was a stipulation that it should be satisfactory to and ac- cepted by the chief of the Are de- partment before the municipality should become liable thereon. Held not to be an Improper delegation of power to the chief. Goodyear Rubber Co. v. Eureka, 135 CaL 613, 67 Pac. 1043. § 388 PowEKs OF New England Towns. 855 § 388. Powers of New England towns. New England towns, like other public corporations, can exercise no powers except such as are expressly granted to them, or such as are necessary to enable them to dis- charge their duties and carry into effect the objects and purposes of their creation.^® They act not by any in- herent right of legislation, like the legislature of the state, but their authority is delegated.^^ "It is quite too late,*^' as observed in a Connecticut case, "to urge for them the possession of any inherent or prescriptive rights or powers, or any rights or powers not expressly or im- pliedly delegated'tp them by the legislative power of the state." s^ • In Vermont it has been held that the towns in existence in that state when the State Constitution was adopted have no reserved sovereignty not possessed by all other towns in this state.^^ The corporate powers of towns depend upon legislative charter or grant; or upon pre- scription where they may have exercised the power anciently without any particular act of incorporation. ' In relation to the power of raising money and causing it to be assessed and collected, New England towns are, restricted to the cases of providing for the poor,^^ for 55. Abendroth v. Greenwich, 29 A town is bound to relieve and •Conn. 356, 363. support all poor and indigent per- 56. Willard v. Borough of sons lawfully settled therein, and Killingworth, 8 Conn. 247. also to afford temporary relief to 57. Booth V. Woodbury, 32 such persons having no settlement Conn. -118, 125. there. Caswell v. Hazard, 10 R. I. 58. Bennington v. Park, 50 Vt. 490. 178. "Every town shall be holden to 59. Obligation to support the relieve and support all poor and poor. Mount Holly v. Peru, 72 indigent persons lawfully settled Vt. 68, 47 Atl. 103 ; Westfield v. therein, whenever they shall stand Coventry, 71 Vt. 175, 44 Atl. 66; in need of relief and support and Montpeller v. Elmore, 71 Vt. 193, to afford temporary relief to other 44 Atl. 71. poor and indigent persons." Gen. Must provide education for Laws, R. I. 1896, ch. 79, § 1. pauper children. Sheldon Poor "Whenever a person in any House Assn. v. Sheldon, 72 Vt. town shall be poor and unable tt» 126, 47 Atl. 542. support himself he shall be re- 856 MuNICIPALi COBPOEATIONS. §388 schools,*"* for the support of public worship,®^ for the lieved and maintained by the over- seers of the poor of such town, whether he has a settlement there or not." Pub. St. N. H., 1901, ch. 84, § 1. A pauper cannot recover from a town for services rendered while an inmate of its almshouse. Taun- ton V. Talbot, 186 Mass. 341, 71 N. B. 785. A town cannot recover for the support of a pauper, even though the pauper afterwards comes into possession of property. Charles- town V. Hubbard, 9 N. H. 195. Where a town supports the in- sane wife of a man well able to support her but who had neg- lected to do so, it can recover from him for such support. Alna v. Plummer, 4 Me. 258. Same as to support rendered a wife separated from her husband, but who had become poor. Rum- ney v. Keyes, 7 N. H. 571. A town is not liable to one who has rendered medical services to a poor person prior to notice there- of to the overseer of the poor, although the overseer, when noti- fied, promised on behalf of the town to i>ay for the services ren- dered before notice. Farmer v. Salisbury, 77 Vt. 161, 57 Atl. 201. An individual cannot recover from a town for expenses incurred in support of a pauper of that town without the request of the overseer of the poor. Thettord v. Hubbard, 22 Vt. 440; Caswell v. Hazard. 10 R. I. 490. 60. Duty to provide schools. "Every town shall establish and maintain, * * * a sufficient num- ber of public schools, at conven- ient places, under the management of the school committee, subject to the supervision of the commis- sioner of public schools." Gen. Laws, R. I. 1896,, ch. 54, § 1. And this power is not confined tOf the support of schools for in- struction in branches of knowl- edge which the revised statutes re- quire to be taught. Cushing v. Newburyport, 10 Mete. (Mass.) 508. A tax to defray the expenses of a school is illegal when it is un- reasonably in excess of the amount voted by the school district. Row- ell V. Horton, 57 Vt. 31. A school district has power to raise money to build a school house. School District No. 1 v. Bailey, 12 Me. 254, 258. The private property of the in- habitants of a school district is liable to be taken to satisfy a judgment against the district. Mc- Loud V. Selby, 10 Conn. 390, 27 Am. Dec. 689.. 61. Public worship. "The New England meeting house is the sym- bol of much that is characteristic of New England life. Its erection was the starting point of every one of the earlier New England com- munities, and it has been the rally- ing point of their history." "In New Haven, the first tax of which there Is any record was for the building of the first meet- ing house, and the town's mark was put upon trees suitable for repairing it, 'that nobody, etc., may meddle with them.' " Gar- land, New Eng. Town Law, p. 7, citing C. H. Levermore, "Republic of New Haven," 76. §389 Powers of Towns in New England. 857 support of children and insane persons,^^ and "other necessary charges. " ^^ § 389. Illustrative cases of powers of New England towns. The powers and obligations of New England towns are amply illustrated by the judicial decisions of the several New England states. The power of a town to raise money is limited by statute to the objects expressly fr2. Support of children and In- sane persons. A town is bound to care for the minor children of pauper parents. Great Barrington V. Tyrlngham, 18 Pick. (Mass.) 264; Rockland v. Farnsworth, 93 Me. 178, 184; Milo v. Harmony, 18 Me. 415, 417; Lieeds v. Freeport, 10 Me. 356; Glidden v. Unity, 30 N. H. 104; Vt. St., 1894, ch. 135, § 2833; General Laws, R. I. 1896, ch. 79, § 14. A town is bound to care for its insane persons. Upton v. North- bridge, 15 Mass. 237; Vt. St. 1894, ch. 149, § 3280 et seq. 63. "Other necessary charges." lu addition to the money to be raised for the things specifically named "towns might raise such sums as should be necessary to meet the ordinary expenses of the year; such as the payment of such municipal officers as they should be obliged to' employ, the support and defense of such actions as they might be parties to, and the expenses they would incur in per- forming such duties as the law imposes, as the erection of pow- der houses, providing ammunition, making and repairing highways and town roads, and other things of a like nature; which are neces- sary charges, because the effect of a legal discharge of their corporate duty. "The erection of public build- ings for the accommodation of the Inhabitants, such as town houses to assemble in and market houses for the sale of provisions, may also be a proper town charge, and may come within the fair meaning of the term necessary; for these may be essential to the comfort and convenience of the citizens. But it cannot be supposed that the building of a theater, a circus, or any other place of mere amuse- ment at the expense of a town, could be justified under the term necessary town charges. Nor could the inhabitants be lawfully taxed for the purpose of raising a statute, or a monument; these be- ing matters of taste and not of necessity; unless in populous and wealthy towns, they should be thought suitable ornaments to buildings or squares, the raising and maintenance of which are within the duty and care of the governors or officers of such towns." Per Parker, C. J., Stetson V. Kempton, 13 Mass. 272, 278, 279, 7 Am. Dec. 145. 858 MUN-ICIPAL COKPOEATIONS. § 389 provided for and such expenses as are necessarily inci- dental.®* The phrase "other necessary charges," or "other necessary incidental town expenses," frequently appears in the law concerning New England towns. In Vermont the latter phrase has been held to include the expense of building town houses for the accommodation of its meet- ings and for its municipal officers, and, if the primary object of the creation was for proper municipal uses, it has been judicially declared that the town may rent a part of it for income. So, the town may lawfully repair an old town building for rental purposes ; however, if the primary object was to invest money in a building for rent it would be illegal.*" A town cannot build or repair a bridge in another town.®* It has been held that a town has power to appear before the general assembly of the state and oppose the granting of a petition for the division of its territory and employ legal counsel and incur other reasonable expenses for the purpose. And in such case the selectmen have power to act in the matter when the town has not otherwise taken action.®'' The contrary has also been held.®* 64. Dillingham v. Snow, 5 Mass. Goshen, 11 Pick, 396; Anthony v. 547; Bangs v. Snow, 1 Mass. 181, Adams, 1 Met. (Mass.) 284; Vin- 187; Concord v. Boscawen, 17 N. cent v. Nantuckeit, 12 Gush. H. 465. (Mass.) 103; Augusta v. Leadbet- 65. Bates v. Bassett, 60 Vt. 530, ter, 16 Me. 45, 47, 48. 534, 15 Atl. 200; Mount Holly v. 66. Concord V. Boscowan, 17 N. Peru, 72 Vt. 68, 47 Atl. 103; Shel- H. 465. don Poor House Assn. v. Sheldon, 67. Farrel v. Derby, 58 Conn. 72 Vt. 126, 47 Atl. 542; Westfleld 234, 20 Atl. 460. V. Coventry, 71 Vt. 175, 44 Atl. 66; In Bachelder v. Epping, 28 N. Montpelier v. Elmore, 71 Vt. 193, H. 354, plaintiff was permitted to 44 Atl. 71. recover against a town for service "Other necessary charges." Bus- rendered and money expended on sey V. Gilmore, 3 Me. 191; Opinion account of appearing as a member of Justices, 52 Me. 595; Westbrook of a committee of the town before V. Deering, 63 Me. 231; Minot v. the legislature to secure one term' West Roxbury, 112 Mass. 1, 17 Am. of court a year in the town. Rep. 52; Rumford School District 68. Frankfort v. Winterport, 54 V. Wood, 13 Mass. 193; Parsons v. Me. 250; Westbrook v. Deering, 63 § 389 PowEBs OF Towns in New England. 859 Towns have no authority in time of war and danger of hostile invasion to raise money to give additional wages to the militia and for other purposes of defense.*^ So they cannot engage in manufacturing ^enterprises 'or give credit or loan money for this purposed" So they cannot borrow money unless expressly or impliedly authorized to do so by statuteJ^ nor can they raise money for a cemetery fund ; '^^ however, they many raise money to erect a soldier's monuments* Nor can towns pay boun- ties without legislative sanction,'* but the legislature may authorize or ratify such expenditure^* Maine towns are liable by statute for the burial of soldier residents of the townJ® So in that state a town may purchase or receive a negotiable note for the purpose of meeting an expected claim upon the town by the payee ; and may maintain a suit thereon as indorser in the name of the town. This power may be exercised by the town agent and selectmen without a vote of the town. "The powers of the agent are limited only by the capacities of the corporation and by the nature of his employment." Where officers have power to accomplish an object they have the choice of legal means by which it may be done.''' Me. 231; Opinion of Justices, 52 72. Luques v. Dresden, 77 Me. Me. 598; Coolidge v. Brookline, 114 186. Mass. 592. , 73. Gilman v. Waterville, 59 Minot V. West Roxbury, 112 Me. 491. Mass. 1, 17 Am. Rep. 52, Is based 74. Alley v. Edgecomb, 53 Me. on proposition that the town has 446. no vested rights to its territorial 75. Barker v. DIxmont, 53 Me. limits, and therefore has no corpo- 575; Winchester v. Corrlnna, 55 rate duty to defend those Um- Me. 9. its against the state. 76. Racklitf v. Greenbusch, 93 See § 366 ante. Me. 99, 44 Atl. 375. 69. stetson v. Kempton, 13 77. As to power of Maine towns Mass. 272, 7 Am. Dec. 145. to contract, see Reynolds v. Wa- See § 365 ante. terville, 92 Me. 292, 42 Atl. 553; 70. Opinion of Justices, 58 Me. Maine Water Co. v. Waterville, 93 590. Me. 586, 45 Atl. 830; Winterport 71. Parsons v. Monmouth, 70 Water Co. v. Winterport, 94 Me. Me. 262. 215, 47 Atl. 142, 1042. 860 Municipal Coepoeations. § 389 The Vermont statute, authorizing towns to grant money for enumerated purposes, and concluding, "and for the prosecution and defense of the common rights and interests and for all other necessary and incidental charges within said town," has heen construed by the courts of that state not to limit the town to the objects specially mentioned in the preceding part of the section, ,but extends to other matters pertaining to the rights and duties of the town. In the opinion of that court those provisions embrace that large class of miscellaneous sub- jects affecting the accommodation and convenience of the inhabitants which have been placed under the municipal jurisdiction of towns by statute or usageJ^ Towns may construct aqueducts and reservoirs for water as "objects of common convenience and neces- sity." ''» Towns by virtue of their general powers have authority in their corporate capacity, to build a market house, to appropriate money therefor, and to assess the same upon the inhabitants.^" So the support of a public park is one of the objects of municipal concern and jurisdiction.*^ Relating to prudential concerns of a town, Shaw, C. J., remarked in 1831: "Perhaps no better approximation to an exact description can be made, than to say that it embraces that large class of miscellaneous subjects, affect- ing the accommodation and convenience of the inhab- itants, which have been placed under the municipal jurisdiction of the town, by statute or by usage." *^ The statutes of Massachusetts giving towns power to appropriate money provides that, in addition to the cases therein specified, towns may raise and appropriate money "for all other necessary charges arising in such 78. Per Isham, J., In Van Sick- 80. Spaulding v. Lowell, 23 len V. Burlington, 27 Vt. 70, quot- Pick. (Mass.) 71, per Shaw, C. J. ing and approving remarks of See n. 26 to § 370 ante. Shaw, C. J., in Willard v. New- 81. Willard v. Newburyport, 12 buryport, 12 Pick. (Mass.) 230. Pick. (Mass.) 227. 79. Hardy v. Waltham, 3 Mete. 82. Willard v. Newburyport, 12 (Mass.) 163. Pick. (Mass.) 227, 231. § 389 PowEKs OF Towns in New England. 861 town." This has been construed to authorize a town to raise and appropriate money in respect to matters where it was a corporate duty, right or interest to perform, defend or protect.®* Towns have no power to levy taxes and assess money upon their inhabitants for general or indefinite purposes, but may do so only so far as the same may be necessary to enable them to exercise the power, enjoy the privileges and perform the duties established by law.^* Towns may raise money at a meeting duly called after the annual meeting; and if at the annual meeting they have voted to raise so much money as to require the assessment of the full sum allowed by law to be assessed upon polls in any one year, a tax subsequently voted must be assessed only on property.** 83. Leonard v. Middleborough, of the town Incurred expenses for 198 Mass. 221, 223, 84 N. E. 323; repairing a highway which prior Vincent v. Nantucket, 12 Cush. to the Incorporation of a town had (Mass.) 103. belonged to a turnpike company. 84. Willard v. Newburyport, 12 Subsequently it was discontinued Pick. (Mass.) 227, 229. as a turnpike by legislative act 85. Fieeland v. Hastings, 10 and declared to be a part of the Allen (Mass.) 570. highway In the towns through The charter required the corpo- which it passed. Held, the ex- ration to keep in good and suffl- penses were properly chargeable cient repair all the highways £ gainst the town. McGowan v. which were open and within its Windham, 25 Conn. 86. corporate limits. The selectmen 862 MUNICIPAX, COEPOEATIONS. CHAPTEE 11. NATURE, CONSTRUCTION AND EXERCISE OF SPECIAL OR PARTICULAR AND MISCELLANEOUS MUNICIPAL POWERS Sec. Eec. 390. Scope of charter. 400. 391. Rewards for offenders against municipal regula- tions. 401. 392. Party walls. 402. 393. Subscription to stock of pri- vate corporations. 403. 394. Same — Constitutional prohi- bition. 404. 395. Same— ;Grant of power — Re- strictions and construc- tion. 405. 396. Sale of liquor — Dispensary laws. 406. 397. Nature of wharves and pow- er to construct and con- 407. trol. 408. 398. Lands on navigable waters are held in trust for the 409. public — State may grant control to municipal cor- porations. 399. Wharves — Ownership of land. 410. Municipal corporation can- not abdicate control of wharves. Batture. Power to charge and collect wharfage. Same subject — Nature of wharfage. Wharfage charge as an In- terference with interstate commerce. Wharfage distinguished from tonnage. Character of public ferries. Lease and operation of fer- ries. License and taxation of fer- ries, etc. License for privilege of nav- igation — regulating or in- terfering with foreign or interstate commerce. Power to construct and maintain municipal bridges over navigable waters. § 390. Scope of charter. This chapter will include certain special or particular and miscellaneous powers sometimes conferred upon municipal corporations, vhich are not considered in other parts of this work. The outline of the contents above sufficiently indicates its scope.^ 1. See ; 350 ante. ■^ 391 Pov'EE TO Offer Ebwaeds. 863 § 391. Rewards for offenders against municipal jregula- tions. It is generally held that a municipal corporation may offer rewards for the apprehension and conviction of offenders against its local or municipal regulations. This is regarded as an incidental or implied power, resulting from the obligation to preserve the safety and general welfare of the inhabitants and their property. Thus a reward may be offered for the apprehension and conviction of persons who set fire to buildings within the municipal area.* But, in the absence of express authority, a municipal corporation may not offer rewards for information lead- ing to the arrest and conviction of violators of state laws, although committed within the municipal limits. The local corporation is not charged with the execution of the general criminal laws of the state. This is not 2. Reward for offenders against gencles. We consider Its exercise local regulations. "The danger as 'contravening no provision of of conflagrations in cities and the Constitution, • * * and villages necessitates preventive made in the exercise of the po- measilres that are not common lice power necessary to the in sparsely-settled districts, and safety of the city,' and, we may such municipalities are author- add, impliedly conferred upon it." ized to expend large sums for ap- People ex rel. Maynard v. Holly, paratus to extinguish them. But 119 Mich. 637, 639, 640, 44 L. R. these only serve to prevent the A. 677, 78 N. W. 665, 75 Am. St. spread of Are. A determined Rep. 435; Shaub v. Lancaster incendiary In a city is a menace City, 156 Pa. St. 362, 26 Atl. 1067, which cannot be safely disre- 21 L. R. A. 691; Freeman v. Bos- garded, and may call for more ton, 5 Mete. (Mass.) 56, per Shaw, than the ordinary methods to C. J. guard against his acts. We Record of conviction as evi- thlnk the general 'welfare clause' dence of guilt in an action to re- is sufficiently broad to cover the coyer the reward. Mead v. Bos- employment of private detectives, ton, 3 Cush. (Mass.) 404, 406; through reward. In such' emer- York v. Forscht, 23 Pa. St. 391. 864 MtTNICIPAL COEPOEATIONS. §39.1 a municipal or corporate purpose, but a duty devolving upon the state.''' The statutes of New Hampshire * and Massachusetts," and the charter of Detroit authorizes the offer of re- wards.* 3. Winchester v. Redmond, 93 Va. 711, 25 S. B. 1001, 57 Am. St. Rep. 822, 47 Central Law Journ. 57; Crofut v. Danbury, 65 Conn. 294, 32 Atl. 365; Abel v. Pembroke, 61 N. H. 357, 359; Hawks V. Marion County, 48 Iowa 472. Rewards for violations of state laws unauthorized. Forbidden In cases Involving homicide. Baker v. Washington, 7 D. C. 134, reward offered by the city of Washington for the cap- ture of the assassin of President Lincoln held void. Declared invalid in murder case. Gale v. South Berwick, 51 Me. 174; Hanger v. Des Moines, 52 Iowa 193, 2 N. W. 1105, 35 Am. Rep. 266, 9 Cent. Law Journ. 478. Denied in crime of murder and arson in Murphy v. Jacksonville, IS Fla. 318, 43 Am. Rep. 323. Reward offered for the appre- hension of one who, through for- gery, had embezzled city funds, declared unauthorized in Pa''- ton V. Stephens, 77 Ky. (14 Bush.) 324, 326. A city cannot employ counsel to aid in a criminal prosecution on behalf of the state against persons who had lately been of- ficers of the city, for crimes in the course of, or under color of the discharge of their oEBcial du- ties; and although such aid has been rendered in pursuance of such employment, no action will lie against the city to recover compensation therefor. Butler v. Milwaukee, 15 Wis. 493. In Iowa county boards of super- visors have no authority to offer rewards, Huthsing v. Bousquet, 2 McCrary (U. S. C. C.) 152, 3 McCrary 569. In Indiana the board of county commissioners have no power to offer rewards. Grant County Com- missioners V. Bradford, 72 Ind. 455; Ripley County Commis- sioners V. Ward, 69 Ind. 441; Hight V. Monroe County Commis- sioners, 68 Ind. 575. 4. Assumpsit allowed to re- cover in Janvrin v. Exeter, 48 N. H. 83, 2 Am. Rep. 185. Reward cannot be claimed for services rendered before it is duly offered. Abel v. Pembroke, 61 N. H. 357, 359. In Illinois by statute county boards may offer rewards for ap- prehension and conviction of those guilty of stealing any horse, mare, etc., or any other property not exceeding in value $50. Butler v. McLean County, 32 111. App. 397. 5. Crawshaw v. Roxbury, 7 Gray (Mass.) 374. 6. The charter of Detroit de- clares that the common council shall have power by a two-thirds vote to authorize the board of po- lice commissioners to offer a re- ward for the detectibn and appre- §391 Offers of Eewaeds. 865 The decisions usually declare the law to be that where the services are in the tine of his duties a public officer cannot recover a reward.'^ Thus, in an early Massa- chusetts case, the plaintiff was a watchman of the city defendant, legally appointed, and while in the discharge of his duty as such watchman observed one setting fire to a building. He had the incendiary arrested, prose- cuted and convicted, and then claimed a reward which, prior to that time had been offered by the city govern- ment. The claim was denied on the ground that the watchman had merely performed a plain duty.* hension of any one found guilty of offenses against the dty ordi- nances, or of high crimes and mis- demeanors within the city. Under such authority the council may not by a majority vote, and Inde- pendent of the police commis- sioners authorize the mayor to offer rewards for the conviction of Incendiaries. Loveland v. De- troit, 41 Mich. 367, 1 N. W. 952. The New York Consolidated Act, § 259 expressly authorizes the police board to offer rewards for the apprehension and convic- tion of persons guilty of homicide, arson and receiving stolen good"?. 7. Ohio. Gillmore v. Lavis, 12 Ohio 281. Tennessee. Stamper v. Tem- ple, 6 Humph. (Tenn.) 113. Minnesota. Warner v. Grace, 14 Minn. 487; Day v. Putnam Ins Co., 16 Minn. 408. Iowa. Means v. Hendershott, 24 Iowa 78. An agreement to reward a policeman for doing his duty is void as against public policy. Kick V. Merry, 23 Mo. 72; Thorn- ton V. Mo. Pac. Ry. Co., 42 Mo.' App. 58. 1 McQ.— 55 Compensation for performing a public duty. Some early En- glish authorities held it was Illegal for officers to take money for doing their duty. Stotes- burry v. Smith, 2 Burr. 924; Harris v. Watson, Peake, 72. But Lord Ellenborough held that such a promise was not void on the ground of illegality, but on the ground of a want of con- sideration. Stilk V. Myrlck, 2 Comp. 317; Bridge v. Cage, Cro. Jac. 103. Approved in Pool v. Boston, 5 Cush. 219. See Greenhood on Public Policy, p, 328 et seg. 8. Pool V. Boston, 5 Cush. (Mass.) 219, 221. Personal liability. Where three individuals signed a paper as selectmen of a town, offering a reward for the apprehension and conviction of a person who shot a citizen of the town, they were held personally liable, although the signatures were accompanied bj their official designation. Brown v. Bradlee, 156 Mass. 28, 30 N. E. 85, 32 Am. St. Rep. 430, 15 L,. R. A. 509. 866 Municipal Cobpoeations. § 392 If the offer of a reward is made by public proclama- tion it may, before rights have accrued under it, be withdrawn through the same channel in which it was made. The fact that the claimant of such reward was ignorant of such withdrawal is immaterial.^ A resolu- tion authorizing an offer of reward for the arrest and conviction of incendiaries is only binding on the city for a reasonable time, and in determining what is a rea- sonable time the reason or necessity for the passage of the resolution must be taken into account.^* § 392. Party walls. A party wall is the division wall between two con- nected and mutually supported buildings, either both actually erected, or one contemplated, of different owners, commonly but not necessarily, standing half on the land of each, ordinarily maintained at mutual cost But an offer of reward for the felon who had been guilty of apprehension and conviction of homicide In the town, can bind persons guilty of robbing a the funds of the corporation for county treasury, signed by order its payment; and if not they may of the county board of super- perhaps be personally liable, visors, by the chairman thereof, 9. Shuey v. United States, 92 Is not the act of the individual U. S. 73, 76, 23 L. Ed. 697, per members of the board for which Mr. Justice Strong, they are Individually and per- 10. Shaub v. Lancaster City, sonally liable, but is an act done 156 Pa. St. 362, 26 Atl. 1067, 21 by them In their official capacity L. R. A. 691; Mitchell v. Abbott, only; and the fact that the board ?6 Me. 338, 29 Atl. Rep. 1118. had no authority to offer such Limit of offer. Loring v. Bos- reward so as to bind the county ton, 7 Met. (Mass.) 409, held does not render the members offer Is not unlimited, continuing thereof personally liable. Huth- until it should be formally wlth- sing V. Bousquet, 2 McCrary 152, drawn, but is limited to a rea- 3 lb. 569. sonable time; and that it ceased In Lee v. Trustees of Flemings- to be an offer, after the lapse burg, 7 Dana (Ky.) 28, the ques- of three years and eight months, tlon is discussed whether the See Crawshaw v. Roxbury, 6 trustees of a town, offering a re- Gray (Mass.) 374. ward for the apprehension of a §392 Party Walls. 867 and always with the right of each owner to insert therein his timhers.*^ A party wall in the strict legal sense can exist only "in one of two ways — ^by contract or by statute, but such a right may arise by prescription.^^ The owners of adjoining buildings connected by a party wall resting partly upon the- land of each are neither joint owners nor tenants in common of the wall. Each owns in severalty his land to the dividing line and that part of the wall which rests upon it, but the soil of each with the wall belonging to him is burdened with an easement of servitude in favor of the other to the end that it may afford a support to the wall and building of such other. ^^ 11. Duscomb V. Randolph, 107 Tenn. (23 Pickle) 89, 98, 64 S. W. 21, 23, 89 Am. St. Rep. 915; Brown v. Werner, 40 Md. 15, 19; Barry v. Edlavitch, 84 Md. 96, 35 Atl. 170, 171, 33 L. R. A. 294; Harbor v. Evans, 101 Mo. 661, K S. W. 750, 10 L. R. A. 41, 20 Am. St. Rep. 646; Glover v. Mersman, 4 Mo. App. 90, 91. What Is a party wall. It Is Immaterial that the foundation is not equally laid on the lot of each party and that the wall It- self above the foundation is fully within the lot of one of the adjoining owners. Appeal of Western Natl. Bank, 102 Pa. 171, 182. A wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing line be- tween the two tenements is a party wall. Spero v. Shultz, 43 N. Y. S. 1016, 1018, 14 App. Die. 423. A wall built entirely on one man's land may acquire by grant the characteristics of a party wall. Brondage v. Warner (N. Y.), 2 Hill 145, 148. A division wall may become a party wall by agreement, either actual or presumptive. Barry v. Bdlavitch, 84 Md. 95, 35 Atl- 1'70, 171, 33 U R. A. 294. 12. List V. Hombrook, 2 W. Va. 340, 342; Bright v. J. Bacon & Sons, 131 Ky. 846, 116 S. W. 268, 20 L. R. A. (N. ,S.) 386; Kiefer v. Dickson, 41 Ind. App. 543, 549, 84 N. B. 523. 13. Alabama. Graves v. Smith, 87 Ala. 450, 451, 6 So. 308, 5 L. R. A. 298, 13, Am. St. Rep. 60. Massachusetts. Walker v. Stet- son, 162 Mass. 86, 89, 38 N. E. 18. Mississippi. Hoffman v. Kuhn, 57 Miss. 746, 750, 34 Am. Rep. 491. Nebraska. Shiverich v. R. J. Gunning Co., 58 Neb. 29. 33, 78 N. W. 460. 868 Municipal Coepoeations. §392 The general rule is that one co-owner of a party wall has no right to use any part of the wall which does not rest upon his own land and that he has only an easement of support in that part of the wall which rests on his neighbor's land.^* Oregon. Odd Fellows Hall Assn. V. Hagele, 24 Or. 16, 23, 32 P. 679. Virginia. Schwalm v. Beards- ley, 106 Va. 407, 410, 56 S. E. 135. Wisconsin. Andrae v. Hasel- tlne, 58 Wis. 395, 397, 17 N. W. 18, 46 Am. Rep. 635. England. Matts v. Hawkins, 5 Taunt. 20, 1 E. C. L. 4. Ownership is in severalty. Each adjoining proprietor Is the owner in severalty of his part, both of the wall and the land on which it stands, subject to the gross easement of support and for other common needs in favor of the other proprietor. Fidelity Lodge No. 59, I. O. O. F. of Newcastle v. Bond, 147 Ind. 437, 45 N. E. 338, 339, 46 N. B. 825. Contra, in Louisiana, where there seems to be no division of a wall in common, the whole be- longing jointly and without di- vision to the neighboring proper- ties and serving their common purpose without reference to the dividing line between lots. Weill V. Baker, 39 La. Ann. 1102, 1103, 3 So. 361. Use of party wall. In Kelly V. Taylor, 43 La. Ann. 1157, 1161, 10 So. 255, the defendant, one of the owners, was not permitted to make openings in the, party wall. The owner of land In building a party wall has no right against objection of the adjoining owner to leave openings for windows. Normille v. Gill, 159 Mass. 427, 34 N. E. 543, 544, 38 Am. St. Rep. 441. See ■ also Cubitt v. Porter, 8 B. & C. 257, 15 E. C. L. 212, 6 L. J. K. B. (0. S.) 306, 2 Am. & R. 267, and Wiltshire v. Sidford, 8 B. & C. 259, 1 M. & R. 404, 15 E. C. L. 212, 17 E. C. L. 675, note, wherein it is held that the com- mon user of a wall separating adjoining lands belonging to different owners is prima facie evidence that the wall and the land on which it stands belongs to the owners of those adjoining lands in equal moities as tenants in common, and distinguishing Matts V. Hawkins, ante, In that * in the latter the amount of land contributed by each co-owner was definitely known but not in the former. 14. Alatama. McMinn y. Kar- ter, 116 Ala. 390, 393, 22 So. 517. Illinois. Ingals v. Plamondon, 75 111. 118, 123. Missouri. Houston v. DeZeng, 78 Mo. App. 522, 530; Reinhardt V. Holmes, 143 Mo. App. 212, 225. Ifev) York. Brooks v. Curtis, 50 N. Y. 639. 644. Pennsylvania. Warfel v. Knott, 128 Pa. St. 528, 532, 18 Atl. 390. §392 PowEE AS TO Party Walls. 869 A city erecting a city hall without any contract for a party wall may through its proper officers without a vote of the people on a fair consideration consent to the use of a wall as a party wall by the adjacent owner.^^ The state may confer upon municipalities the power of regulating party walls. Under municipal regulations, appropriation may be made by one of two adjoining lot owners of a certain portion of the other's land for the erection of a party wall for their common enjoyment and use.^' And it has been held that a charter which author- izes the common council to pass ordinances "for authoriz- ing the erection and building of partition or party walls and fences and to regulate and govern the same," con- 15. Ida Grove v. Ida Grove, Armory Co. (Iowa, 1910), 125 N. W. 866, 867. The city having had the benefit of the contract executed and there- after having endeavored to take advantage of that part of it bene- ficial to itself, it was adopted to avoid its obligations to permit the adjacent owner to use the party wall. IMd. 16. Heron v. Houston, 217 Pa. 1, 3, 66 Atl. 109. Regulation of party walls. In Pennsylvania, where the con- stitutionality of the Act of 1849, giving the city surveyor the right to condemn an existing party wall and permit its removal because it was too weak to support a large new building which was about to be erected on an adjoining lot, the court said: "The principle is no Invasion of the absolute right of property, for that absolute in- volves a relative, In 1)ia,t it im- plies the right of each adjoiner, as against the other, to insist on a separation by a boundary more substantial than a mathemat- ical line." Evans v. Jayne, 23 Pa. St. 34, 36. Every owner of a lot of ground in Philadelphia has a statutory right to make a party wall be- tween himself and his neighbor, and may enter upon the adjoining lot for that purpose, not going beyond the prescribed limit. Ap- peal of the Western Natl. Bank, 102 Pa. St. 171, 183. Under the charter of Greater New York, the City Building Code (§ 22), making it the duty of the person excavating more than ten feet below the curb to preserve the adjoining wall, or using a party wall to preserve the adjoin- ing building, has the same force and effect as a statute. Post v. Kerwin, 133 N. Y. App. Dlv. 404, 117 N. Y. S. 761, 762. 870 MuNiciPAi, CobpOeations. §392 fers power upon the city to authorize one party to erect a party wall, one-half upon the adjoining land, and to require the owner of the land thus occupied to make com- pensation for its use." 17. Regulation and compensa- tion for use. Such ordinance is held "not repugnant to the Consti- tution of the United States or of the state, because compensation is not provided for the land occupied by the wall. The land is not taken for public use, and, therefore, not within the terms or meaning of the Constitution. The land is not taken from the owner in any sense. It remains his together with the wall constructed upon it. If he use it or any part of it for building purposes, he is required to pay the adjoining owner a moiety of the cost of the portion so used. The ordinance, for pur- poses deemed equally advanta- geous to both the adjoining prop- 1 crties, and beneficial to the cor- poration at large, imposes a bur- den upon the land. The propri- etor of the land thus burdened in contemplation of law, receives an equivalent in the corresponding easement which he enjoys in the land of the adjoining properties. "Similar laws have existed from a very early period in England and in this country and they have been regarded not as unauthorized violations of the property or rights of the citizen but rather as rea- sonable and useful regulations and as evidence of a vigilant and civil- ized police." Hunt v. Ambruster, 17 N. J. Eq. 208, 212. But in Traute v. White, 46 N. J. Eq. 437, 440, 19 Atl. 196, the de- cision in Hunt v. Ambruster, sm- pra, was criticized and the consti- tutionality of the above ordinance questioned by the court in which it is said: "I think it Is proper to say further, that for the ex- press dictum of Chancellor Green jn Hunt V. Ambruster, 17 N. J. Eq. 208, I should have thought an act or ordinance authorizing a party to build a wall on his neigh- bor's land to be simply not legis- lation, but usurpation. I confess it is not forbidden by any clause in the Constitution, and I have al- ways supposed it was not thought to be necessary by the framers of that Instrument to insert In it a clause forbidding the taking of private property for private use, either with or without compensa- tion, and that legislation in that direction was in the absence of express constitutional authority beyond the lawmaking power. And it seems to me when my neighbor takes exclusive possession and oc- cupation of my land by covering it with a solid wall of masonry many feet high, he takes it from me in the most thorough and ef- fective manner, although the legal title remains in me. I do not un- derstand that the legal title Is, at all involved in an unlawful taking of land, but that it is a question rather of practical dominion over and the right to use it at the own- er's free will and pleasure, so that he does not injure his neighbor or the public. When and so far as the owner is prevented from exer- §393 PowEK TO Subscribe to Stock. 871 § 393. Subscription to stock of private corporations. Power to subscribe for stock or issue bonds for the pur- chase of stock or the payment of subscriptions therefor, in private corporations, is not one of the general powers of a municipal corporation. Such powers may be exer- cised only when authorized by the legislature. The grani cising such dominion over hia land, It Is taken from him. Nor do I understand such taking can be authorized by any supposed benefit to result to the owner. Es- pecially is this true In case of a party wall where the realization of the supposed benefit depends en- tirely upon the manner in which the owner to be benefited may desire to enjoy his lot. If he shall never desire to build on that part of his lot, a party wall will never be of any benefit to him; or even if he shall desire to build up to his line, the party wall may be entirely unsuited in thickness and material for the structure he pro- poses to erect, and so be a positive injury rather than a benefit to him." In Swift V. Calnan, 102 Iowa 206, 213, 37 L,. R. A. 462, 63 Am. St. Rep. 443, 71 N. W. 233, the pro- visions of the Iowa Code, §§ 2019, 2020, and 2027, which give the owner of a lot the right to build a wall, not more than eighteen Inches wide, one-half upon the land of his neighbor, and per- mitted him to recover from the neighbor one-half of the expense thereof when the latter shall use the wall, were adjudged not un- constitutional against the conten- " tion that it was the taking of private property for private use without compensation. The court declared that the fact that such statutes had existed for more than forty years, and had been gen- erally accepted and recognized as valid and enforceable, is strong reason for sustaining them, even if there was a disposition to other- wise doubt their constitutionality. Contra, In Wilkins v. Jewett, 139 Mass. 29, 30, 29 N. B. 214, it is held that Prov. St. 1692-3 (5 W. & M.) c. 13, § 2, providing that any one building on his own land in Boston might set half his par- tition wall on his neighbor's land, arid that the neighbor when he should build, should pay for half, so much of the wall as he should' build against, wa,s never in force in Massachusetts, yet it was held by dictum that such a provision undertakes to deal with private property and authorizes one man to appropriate and use the prop- erty of another without his con- sent. And that It is repugnant to the fundamental principle declared in the Declaration of Rights, that the property of the subject shall not be appropriated, even in pub- lic use, without paying him a rea- sonable compensation therefor, that he shall not be deprived of his property but by the judgment of his peers or the laws of the land; and that in all controversies concerning proi>erty he shall have the right of trial by jury. 872 MuNICrPAIi COBPOEATIONS. §393 may be by either general or special act, if not forbidden by the State Constitution, and in conferring the power the legislature may impose such conditions, limitations and restrictions as it may deem proper. The decisions justify the aid on the ground that it is a public purpose or object, and is therefore promotive of the general welfare.^* * 18. Alaiama. Wetunka v. Win- ter, 29 Ala. 651, 661-; Opelika v. Daniel, 59 Ala. 211, 213. Georgia. Griffin v. Inman, 57 Ga. 370, 377. Illinois. Johnson v. Stark Coun- ty, 24 111. 75, 89; Perkins et al. v. Lewis et al., 24 111. ,208, 210; But- ler et' al. V. Dunham et al., 27 111. 474, 478; Wright v. Bishop, 88 111. 302, 303; Sampson v. The People ex rel., 141 111. 17, 21, 30 N. E. 781. Indiana. Aurora v. West, 9 Ind. 74, 79; Indiana N. & S. Ry. Co. V. Attica, 56 Ind. 476, 484. Kansas, Burnes v. Atchison, 2 Kan. 454. Maine. Stevens v. Anson, 73 Me. 489, 494. Missouri. St. Louis v. Alexan- der, 23 Mo. 483, 516; State ex rel. V. Macon Co. Court, 41 Mo. 453; State ex rel. v. Greene Co., 54 Mo. 540, 548. New York. Duanesburgh v. Jenk- ins, 40 Barb. (N. Y.) 574, 579; People ex rel. v. Peck, 62 Barb. (N. Y.) 545, 42 How. Pr. 425. North Carolina. Wood v. Ox- ford, 97 N. C. 227, 231, 2 S. B. 653. Ohio. Posdick v. Perrysburg, 14 Ohio St. 472, 477; Cincinnati v. Dexter, 55 Ohio St. 93, 111, 44 N.- E. 520. Pennsylvania. Commonwealth V. Taylor, 36 Penn. St. 263, 265; Wheeler v. Philadelphia, 77 Pa. 338. Tennessee. Red River Furnace Co. V. Tenn. Cent. Ry. Co., 113 Tenn. 697, 722, 87 S. W. 1016. Wisconsin. Hewitt v. Grand Chute, 7 Wis. 282, 295. United States. Aetna Life Ins. Co. V. Burrton, 75 Fed. 962, 964; Rogers v. Keokuk, 154 U. S. 546, 547, 14 Sup. Ct. 1162, 18 L. Ed. 74. Legislative grant for public purpose only. In Southerland-In- nes Co. V. Evart, 86 Fed. 597, 599, 30 C. C. A. 305, it is said: "In the absence of special enabling pro- visions in the Constitution of a state, the levy of a tax or the appropriation of revenue derived from taxation is permissible only for a public purpose or object, and legislative power is limited ac- cordingly." In Weismer v. Douglas, 64 N. Y. 91, 97, 21 Am. Rep. 586, a legis- lative act conferred authority to defendant (town) to issue and ne- gotiate its bonds and with the proceeds of their sale take shares of stock in a private manufactur- ing company and to pay therefor by taxa,tlon. The court held that this was not a public purpose, al- §393 POWEB TO SUBSOKIBB TO StOOK. 873 Accordingly, it has been judicially determined fre- quently that without legislative authorization a munici- pal corporation has no power to subscribe to the stock of a railroad company^® or to the stock of a water com- pany created to supply a local corporation and its inhabi- though It migM tend to increase the business prosperity of the town. An ordinance is not obnoxious to a constitutional provision that no city shall make donation to or loan its credit in aid of private corporations, because it provides for the elevation of railroad tracks by the company at a place where viaducts had been erected under a prior ordinance and the building of a stone wall by jt in return for which the city would release the company from the accrued claim for damages arising from the erec- tion of the viaduct. The agree- ment being the exchange of one thing for another. Chicago v. P. C. C. & St. L. Ry. Co., 244 111. 220, 230, 91 N. B. 422. The state may authorize an In- corporated town to subscribe for stock of a company incorporated for the purpose of improving the navigation of a river contiguous to such town. Taylor v. Com. of Newberne, 2 Jones Eq. (N. C.) 141. 19. Alabama. Wetumpka v. Wetumpka Wharf. Co., 63 Ala. 611; Montgomery v. Montgomery, etc. Plank Road Co., 31 Ala. 76. Arkansas. Mississippi, etc. R. Co. V. Camden, 23 Ark. 300. California. French v. Tesche- maker, 24 Cal. 518; McCoy v. Briant, 53 Cal. 247. Illinois. Welch v. Post, 99 111. 471; Pitzman v. Freeburg, 92 111. 111. Indiana. Knox County v. Mont- gomery, 106 Ind. 517, 6 N. B. 915; Aurora v. West, 22 Ind. 88. Kansas. Water Light & Gas Co. V. Hutchinson Interurban Ry. Co., 74 Kan. 661, 87 Pac. 883; Atchi- son V. Butcher, 3 Kan. 104; Burnes V. Atchison, 2 Kan. 454. Ohio. State ex rel. v. Perrys- burg, 14 Ohio St. 472. United States. Provident Life & Trust Co. V. Mercer County, 170 U. S. 593, 18 Sup. Ct. 788; Bar- num V. Okolona, 148 U. S. 393, 13 Sup. Ct. 684; Norton v. Dyers- burg, 127 U. S. 160, 8 Sup. Ct. 1111; Kelly V. Milan, 127 U. S. 139, 8 Sup. Ct. 1101; Savanah v. Kelly, 108 U. S. 184, 2 Sup. 468; Wells V. Pontotoc County, 102 U. S. 625; Concord v. Robinson, 121 U. S. 165, 7 Sup. 937; Chls- holm V. Montgomery, 5 Fed. Cas. 2,686, 2 Woods 584; Louis v. Clar- endon, 15 Fed. Cas. 8,320, 5 Dill. 329; Katzenberger v. Aberdeen, 16 Fed. 745. Power to subscribe for stock must be expressly conferred and cannot be assumed from implica- tion or inuendo. Pitzman v. Free- burg, 92 111. 111. See, also, Williamson v. Keokuk, 44 Iowa 88. 874 MusrlCIPAl, COEPOKATIONS. §393 tants with water.^" But, as stated, unless expressly forbidden by the organic law of the state, the great weight of judicial decisions sustains the power of the legislature to authorize municipal corporations to aid in the build- ing of railroads. In the view of the law such public purpose can only be sanctioned by direct unequivocal legislative grant.^^ 20. Memphis v. Memphis Water Co., 8 Baxt. (Tenn.) 587. A municipal corporation cannot lend aid and pledge Its taxing power therefor to a private water company. Scott v. LaPorte, 162 Ind. 34-, 6S N. B. 278, 69 N. E. 675. 21. United States. St. Joseph Tp. V. Rogers, 16 Wall. (U. S.) 644; Olcott v. Fond du Lac Coun- ty, 16 Wall. (U. S.) 678; Chicago, B. & Q. R. Co. V. Otoe County, 16 Wall. (U. S.) 667; Citizens' Savings & L>oan Assn. v. Topeka, 20 Wall. (U. S.) 655; Rogers v. Keokuk, 154 U. S. 546, 14 S. Ct. 1162, 18 L. Ed. 74; Pine Grove Tp. V. Talcott, 19 Wall. (U. S.) 666, 22 L. Ed. 227; Van Hostrup V. Madison City, 1 Wall. 291, 17 K Ed. 538. Alabama. Opelika v. Daniel, 59 Ala. 211. California. Stockton, etc. R. Co. V. Stockton, 41 Cal. 147; Rob- inson V. Bidwell, 22 Cal. 379. 'Connecticut. Douglas v. Chat- ham, 41 Conn. 211. Florida. Gotten et al. v. County Com'rs, 6 Fla. 610. Oeorgia. Powers v. Inferior Court, 23 Ga. 65; GrifHn v. Inman Swann & Co., 57 Ga. 370. Indiana. Evansville, I. & C. S. R. Co. v. Evansville, 15 Ind. 395. Kansas. Leavenworth County v. Miller, 7 Kan. 47§. Kentucky. Slack v. Maysville & Lexington R. Co., 13 B. Mon. 1; Talbot V. Dent, 9 B. Mon. 526; Maddox v. Graham & Knox, 2 Mete. 56. Mississippi. New Orleans, etc. R. Co. V. McDonald, 53 Miss. 240. Missouri. State ex rel. v. Greene County, 54 Mo, 540. New Hampshire. Perry v. Keene, 56 N. H. 514. Nortli Carolina. Board of Com- missioners v. Snuggs, 121 N. C. 394, 28 S. B. 539; Wood v. Oxford, 97 N. C. 227, 2 S. E. 653. Ohio. State v. Clinton County, 6 Ohio St. 280; Cass v. Dillon, 2 Ohio St. 607. Pennsylvania. Com. v. McWil- liams, 11 Pa. St. 61; Steamship Line Com. v. Perkins, 47 Pa. St. 189; Moers v. Reading, 21 Pa. St. 189. South Carolina. State ex rel. v. Neely, 30 S. C. 587; State ex rel. V. Whitesides, 30 S. C. 579; State ex rel. v. Charleston, 10 Rich. Law 491. Tirginia. Goddin v. Crump, 8 Leigh 120. West Virginia. Ravenswood, S. & G. Ry. Co. V. Ravenswood, 41 W. Va. 732; Neale v. Wood County, 43 W. Va. 90. §§ 394, 395 Stock Subscriptions. 875 § 394. Same — constitutional prohibition. As stated in a prior chapter, many state constitutions forbid in express terms municipal corporations from lend- ing their credit or granting public money, or thing of value in aid of, or to any individual, association or corporation whatsoever, or from becoming stockholders in such corporation, association or company."* These organic provisions were suggested because of the great abuses resulting from the unwise and reckless use of the power. When such constitutional provisions become effective, of course, they render void any subscription to stock attempted thereafter by the municipal authorities or the electors."* § 395. Same — grant of DOwer — restrictions and con- struction. Constitutional provisions forbidding the state from lending its credit to the construction of railroads have been construed to apply only to the state, and not to cities and counties."* Wisconsin. State v. Tomahawk, approval of a majority of the cor- 96 Wis. 73. porators 'ascertained. (No delega- Grant by state.' State may au- tlon to the corporation to pass a thorize a municipal corporation to law, but a case of conditional leg- subscribe for stock of railroads islation and discretionary with the payable in bonds, etc. Packard legislature.) Clarkso'n v. Roch- V. Jefferson County, 2 Colo. 338 People T. Pueblo, 2 Colo. 360 Bums V. Atchinson, 2 Kan. 454 ester, 24 Barb. (N. Y.) 446. 22. §1 185, 186 ante. 23. Wright v. Bishop, 88 111. Lafayette, etc. R. R. v. Geiger, 34 . 302; Middleford v. Aetna Life Ins. Ind. 185. Co., 82 111. 562; Falconer v. Buf- When power permissive only falo, etc. R. Co., 69 N. Y. 491; and not mandatory. St. Joseph Richards v. Dinagho, 66 111. 73. D. C. R. R. Co. V.' Buchanan Co., 24. Robertson v. Rockford, 21 39 Mo. 485, 490. 111. 451; New Orleans v. Graible, The legislature may authorize La. Ann. 561; Clark v. Janes- municipal corporations to sub- ville, 10 Wis., 136; Bushnell v. Be- scribe to the stock of railroad com- loit, 10 Wis. 195; Taylor v. Battle panics only with the consent and Creek, 23 Fed, Gas. 13,735. 876 MusriciPAL Coepobations. § 395 A statute authorizing a municipal corporation to sub- scribe to stock of a railroad confersi power of govern- ment upon a public corporation, and is therefore, not a contract. It is a power which may be modified, changed, qualified, restrained or repealed by the Constitution,^;' or subsequent legislative action. It stands in this respect like other political powers conferred by the state.^** Grants of powers of this character being grants un- known to the common law, should be construed strictly, and the courts always invoke such construction.^^ The doctrine is also fundamental that all of the conditions and limitations contained i^i the grant must be observed. Thus, where a municipal corporation is empowered to subscribe to stock of private corporations only iipon being authorized by a vote of its citizens, the provisions of the statutes relative to notice of election, etc., become conditions precedent to the exercise of the power.^^ So it is held that an act forbidding officers of municipal corporations, under penalty, from subscribing to stock of any company, without the previous assent of two-thirds of the qualified voters, confers no authority upon th" municipal corporation or its officers to subscribe to stock with the assent of two-thirds of such voters. It is merely prohibitory.*® Authority to subscribe for stock granted "to any incorporated town or city" includes towns and cities then and thereafter incorporated.'" So an act empower- ing a municipal corporation to lend its credit to a certain railroad and to any other railroad "duly incorporated and organized" leading in a specified direction, includes 25. List V. Wheeling, 7 W. Va. • 28. Sampson v. People, 141 111. 501. 17, 30 N. B. 781. 26. § 165 ante. 29. Jarrolt v. Moberly, 103 U. 27. Indiana, etc. R. Co. v. At- S. 580, 588, 26 L. Ed. 472. tica, 56 Ind. 476; Aurora v. West, 30. Lewis v. Clarendon, 15 Fed. 22 Ind. 88; Lewis v. Bourbon Cas. 8,320, 5 Dill. 329. County, 12 Kan. 186; Allen v. Louisiana, 103 U. S. 80. § 395 Aid to Eailroads. 877 railroads organized in the future.'* However, power to borrow money for any public purpose does not authorize a municipal corporation to loan its credit to a railroad company.^^ So power to levy and collect taxes does not authorize it to subscribe to the stock of a manu- facturing company, or to issue bonds for the payment thereof, and it follows that such bonds, if issued, are utterly void.'* But under an act "to enable cities to aid in the con- struction of railroads," a city may subscribe to the stock of a railroad.^* And a charter provision that the city council, whenever a majority of the qualified voters of the city might require it, should have power "to take stock in any chartered company for making roads to said city," is sufficient authority for the council, directed by the qualified voters, to subscribe to stock of a railroad to extend through the city.'^ On the other hand, charter provisions of a railroad company authorizing its direc- tors to receive subscriptions to the capital stock of the company, as might be prescribed by their by-laws and regulations, "from any county, city, town or village," and further providing that such subscriptions should be valid and binding upon t y county, city, town or vil- lage, was properly held to ccnfer no power upon munici- pal corporations to subscribe to the stock of such company.'® 31. James v. Milwaukee, 16 A municipal corporation cannot Wall. (83 U. S.) 159, 21 L. Ed. use its funds to aid in the con- 267. struction of a railroad. Lafayette A general act empowering mu- v. Cox, 5 Ind. 38. nicipal corporations to subscribe 33. Cook v. Summer Spinning for stock of private corporations & Mfg. Co., 1 Sneed (Tenn.) 698. or to donate money to them, prac- 34. Indiana, etc. R. Co. v. At- tically becomes a part of the char- tica, 56 Ind. 476. ters of the municipal corporations. 35. Aurora v. West, 9 Ind. 74, Madry v. Cox, 73 Tex. 538, 11 S. 79. •yp. 541. 36. Pitzman V. Freeburg, 92 32. Chamberlain v. Burlington, 111. 111. 19 Iowa 395. 878 Municipal Coepobations. § 395 Power vested in a municipal corporation to subscribe for stock of a railroad and issue its bonds to tbe company for tbe stock carries with it tbe incidental authority to tbe railroad company to receive the bonds.*^ So a munici- pal corporation being authorized to subscribe for stock of a railroad and also having the power of taxation, may subscribe to such stock, issue bonds therefor, and pay the principal and interest thereon by a tax on real and personal property within the city (though the rail- roads were without), the object being to build up tbe material interests of the city.*^ The sale of a railroad by a municipal corporation with the provision for part payment therefor, to be a certain per cent of its gross earnings per annum, does not have the effect of making the municipal corporation a stock- holder in the railroad company nor of lending aid to the company.** A charter provision of a railroad company that "It shall be lawful for the agent of any corporate body to subscribe any amount to the capital stock of said com- pany" was held to refer to private corporations and to confer no power on municipal corporations to subscribe to such stock.*" Wbefe a municipal corporation has power to erect public buildings, but is forbidden to lend aid to any private corporation, passed an ordinance providing for contracting with a railroad company for the erection of a public building, a court cannot inquire whether the real object is to lend aid to or assist the railroad in raising mpney.*' A statute empowering cities to construct, maintain and operate waterworks, does not repeal impliedly or 37. Clark v. Janesvllle, 10 Wis. 40. Campbell v. Paris, etc. R. 136. Co., 71 111. 611; East Oakland v. 38. Burnes v. Atchison, 2 Kan. Skinner, 94 U. S. 255, 257. 454. 41. Coulson v. Portland, 6 Fed. 39. Cincinnati v. Dexter, 55 Cas. 3,275. Ohio St. 93, 44 N. E. 520, § 396 PowEE TO Sell Liquors. 879 otherwise a statute authorizing cities to hecome a stock- holder in a water company furnishing the city and inhabi- tants with water.*^ In a case where a corporate election to pass on the question of whether or not the municipal corporation should subscribe for stock in a railroad, resulted affirmatively by bribery, the corrupt use of money, and by votes of persons rendered infamous by judgments of courts of competent jurisdiction, it was ruled that the legislature could by subsequent act validate the same.*' § 396. Sale of liquor — dispensary laws. A municipal corporation may engage in the sale of intoxicating liquor if power is conferred by statute. The business so carried on by a city under a dispensary law is held to be a regulation of the liquor traffic by putting it in the control of those who have no personal interest in it. The state, under the police power, has the undoubted right to provide for such regulation. The pecuniary interest a municipal corporation is supposed to have in the business is a mere necessary incident to the exer- cise of this power and the business so carried on is regarded as a public and not a private enterprise within the purview of the law.** 42. Vlncennes v. Callender, 86 ton v. Northern Illinois College, Ind. 484. 158 111. 333, 42 N. B. 138, affirming 43. Red River Furnace Co. v. 56 111. App. 372. Tenn. Cent. R. Co., 113 Tenn. 697, 44. Sheppard v. Bowling, 127 722, 87 S. W. 1016. Ala. 1, 28 So. 791; Equitable Loan Donation without power is & S. Co. v. Edwardsville, 143 Ala. void. When a municipal corpora- 182, 38 So, 1016, 11 Am. St. Rep. tion without power donated a sum 34; Plumb et al. v. Christie et al., of money to a college and took 103 Ga. 686, 695, 42 L. R. A. 181, back a mortgage conditioned for 30 S. E. 759; Cantani v. Tillman, the repayment of the sum when a 54 Fed. 969. college of fair order fails to be Contra. iUcCuUough v. Brown, maintained, such mortgage is void 41 S. C. 220,' 19 S. E. 458, but for lack of power in the municipal overruled by State ex rel. v, Aiken, corporation to make the donation 42 S. C. 222, 20 S. E. 221. and receive the mortgage. Ful- 880 Municipal Coepokations. § 397 § 397. Nature of wharves and power to construct and control. A wharf is defined as "a space of ground artificially prepared for the reception of merchandise from a ship or vessel so as to promote the convenient loading and discharge of such vessel."*' It is an artificial landing- place of no particular design, the only necessary arrange- ment being that there must be some artificial improve- ment, as distinguished from an unimproved natural land- ing place.*® A mere landing place is not converted into a wharf by so designating it in an ordinance ; it must be improved for that purpose.*^ In towns and cities on the sea or navigable lakes and rivers, ordinarily, the local corporation has power to construct or authorize the construction of safe harbors, landings, piers, wharves and docks. Reasons of public convenience and necessity may require the construction, maintenance and control of wharves by municipal corporations, but in the absence of express authority it is usually held that a municipal corporation cannot construct docks or wharves and exact a charge for "their use.*^ 45. Bouv. Law Diet. (Rawle's California. San Pedro v. South- Ed.), tit. "Wharves." ern Pac. Ry. Co., 101 Cal. 333, 35 46. John J. Sanson Co. v. U. S., Pac. 993. 182 Fed. 573; State v. Dreyer, 229 IlUn'ois. Ligare v. Chicago, 139 Mo. 201, 129 S. W. 904, 912. 111. 46, 28 N. B. 934, 32 Am. St. 47. Cape Girardeau v. Camp- Rep. 179. bell, 26 Mo. App. 12, 15. Indiana. Snyder v. Rockport, 6 A wharf is not a highway, al- Ind. 237, 241. though It may terminate one. Louisiana. St. Martinsville v. Horn v. People, 26 Mich. 221. The Mary Lewis, 32 La. Ann. 1293; 48. Alaslca. Conradt v. Miller, Shepherd v. Municipality No. 3, 6 2 Alaska 433, 440. Rob. (La.) 349, 41 Am. Dec. 269. Alabama. Webb v. Demopolis, Missouri. St. Louis v. Packet 95 Ala. 116, 13 So. 289, 21 L. R. A. Co., 214 Mo. 638, 652, 114 S. W. 62. 21; Hannibal v. Winchel, 54 Mo. Arkansas. Newport v. Bates- 172. ville, etc. R. Co., 58 Ark. 270, 24 New York. Marshall v. Guion, S. W. 427. :i N. Y. 461. § 397 Powers as to Whaeves. 881 The construction, maintenance and control of wharves within its limits is so closely connected with the pros- perity of a municipal corporation and is so nearly allied to the power which it exercises over its streets that no question has ever been raised as to the right of the legis- lature to authorize a municipality to own and maintain them. The property for the "wharf may be secured by grant, purchase or by condenmation proceedings and the fund for its construction and maintenance may be obtain- ed by taxation.*^ A municipal corporation without charter power to construct wharves has been permitted to do so in the improvement of streets in so far only as the power is a mere incident to the lawful improvement of the latter.^" Subject to the rights of navigation, a municipal corpora- tion has the implied right to construct such suitable approaches to and make structures and excavations beyond the water line of its streets as are reasonable to enable the public to avail themselves of the rights of commerce and transportation afforded by a river.^^ So a city may make such improvements under its general power to erect a breakwater to protect its street from being destroyed."^ And it has been held that a local corporation with a public street abutting upon a navi- gable stream may build a wharf which shall give the means of access from the highway by land to the highway by water for the use of the public.®* Pennsylvania. Pittsburg v. Grier, 52. Miller v. Milwaukee, 14 22 Pa. St. 53, 64. Wis. 642. Vermont. City of Burlington v. 53. Backus v. Detroit, 49 Mich. Central Vermont R. Co., 82 Vt. 5, 110, 13 N. W. 380, 43 Am. Rep. 7] Atl. 826, 827. 447; Galveston v. Menard, 23 Tex. 49. Farnham on Waters and 349. Water Rights, vol. 1, p. 565; Nich- Public slips. Power to enlarge bis V. Charlevoix Circuit Judge, public slips does not authorize the 155 Mich. 455, 120 N. W. 343, 344. construction of public slips in the 50. Snyder v. Town of Rock- first instance. Verplanck v. New port, 6 Ind. 237, 241. York, 2 Edw. (N. Y.) 220, 228. 51. Webb v. Demopolis, 95 Ala. The "slip" referred to means 116, 13 So. 289, 21 L. R. A. 62. the intermediate space formed by 1 McQ.— 56 882 Municipal Cokpobations. § 397 In West Virginia it lias been adjudged that the legis- lature may give a municipal corporation in aid of the navigation of a river, the exclusive right to construct vwharves between high and low water marks, without compensation to the adjacent lot owner for the land so taken, because, as against the^tate, riparian owners of land in that state own only to ordinary high water mark."* Power granted a municipal corporation to "construct, maintain and operate" wharves does not authorize it to construct a wharf at any point in its water front it may select, irrespective of the rights of others ; but intends to confer the same right a natural person would possess under such a grant, and to give its act a sanction which it would not otherwise have. This authority does not justify it to prevent the erection of a wharf by another person who has a right therefor, or who does not infringe upon any of its rights.*' Power "to erect, repair and regulate public wharves and docks, and fix the rates of wharfage thereat" is not authority to incur expenses in improving an harbor.** Under power "to lay out additions and alterations to be made, to the public wharves and docks," a municipal corporation may construct new ones.*'' So power to alter wharves includes power to extend or diminish them.** Under power to lay out, open and improve streets, a city cannot fill up a navigable waterway and thereby destroy passage over it. Under grant of right to con- struct ways on streets across waterways, the city must the docks. Under the power noted 55. San Pedro v. Southern Pac. above, the slips may be enlarged R. R. Co., 101 Cal. 338, 35 Pac. by the municipal corporation by 993. building and extending piers into 56. Spengler v. Trowbridge, 62 the river. Thompson v. New York, Miss. 46. 11 N. Y. 115. 57. Dyer v. Baltimore, 140 Fed. 54. Ravenswood v. Flemings, 880. 22 W. Va. 52, 46 Am. Rep. 485. 58. Hannibal v. Wlnchell, 54 Mo. 172. § 398 Lands on Navigable Watees. 883 bridge over the waterway so that its use will not be necessarily impaired."® i Und,er power to discontinue a town way a town cannot discontinue a public landing place.*" § 398. Lands on navigable waters are held in trust for thfe public — state may grant control to munici- pal corporations. The states hold and own the lands covered by ^avigable waters within their respective limits. Such land is held by the state in trust for the benefit of the people. It is held by the state primarily for the purpose of maintain- ing and improving the public rights of navigation and fishery. The sovereign dominion of the state therein can- not be irrevocably alienated, or materially restricted. A grant of such lands is subject to the public easement and the power of subsequent legislature to regulate the enjoyment of the public right. The state may irrevocably alienate parcels of its submerged lands for the purposes of i-eclamation and for the erection of docks, piers and other aids to commerce.*^ Lands under navigable waters are frequently granted by the state to municipal corporations. Such grants are usually in furtherance of tie trust upon which the sub- 59. Llgare v. Chicago, 139 111. B. Ry. Co., 58 Ark. 270, 24 g. W. 46, 28 N. B. 934, 32 Am. St. Rep. 427. 179. Public landing place, held not a Under express authority to l^y way, conferring power to discon- out and complete a street or wharf tinue it. Com. v. Tucker, 2 Pick, seventy feet wide, a city can fill (19 Mass.) 44. up a slip if necessary to the mak- Harbor; iMJwer to establish de- in^ of such street. New York v. nied in Spengler v. Trobridge, 62 Whitney, 7 Barb. (N. Y.) 485. Miss. 46. When police ordinances do not 60. Com. v. Tucker, 2 Pick, apply to wharf of private citizen. (Mass.) 44. See Vandewater v. New York, 2 61. Ward v. Mulford, 32 Cal. Sandf. Sup. Ct. (N. Y.) 258. 365, 372; Oakland v. Oakland Wa- Piers. Marshall v. Guion, 11 N. ter Front Co., 118 Cal. 160, 183; Y. 461. HI. Cent. R. R. Co. v. Illinois, 146 Levees; power to construct de- U. S. 387, 435. nled In Newport v. Bateaville & 884 MuNICIPAIi COEPOEATIONS, § 399 merged lands are held and such grants will be sustained. Thus where the state of Alabama granted to' the City of Mobile a portion of its submerged lands under an act declaring the municipal authorities trustees "to hold, possess, direct, control and manage the shore and soil herein granted in such manner as they may deem best for the public good," the city, acquired title to the land so conveyed as trustee for the public and could not coh- yey the sand for the benefit of riparian proprietors and the fact that the city had not objected to the occupation of the land and the erection thereon of wharves, etc., by a riparian proprietor did not estop the city to deny such proprietor's right to continue to occupy the same nor sup- port the contention that by such use the city had been divested of its title to such land.®^ An act of the legislature extending the limits of a city into and under navigable water and vesting the title thereof in the city for certain public purposes, "but with- out any power to dispose of the same or for any other use or purpose whatsoever," is a grant by the state in trust to the municipality for the public at large and is a conveyance of the title for the purpose of enabling the city authorities to execute the trust.*' § 399. Wharves — ownership of land. If a municipal corporation is owner of land adjoining navigable water, it owns to low water mark.®* So the right of a city over its streets which terminate on a 62. Mobile v. Sullivan Timber ingly, as follows; "It is hardly Co., 129 Fed. 298, 302. conceivable that the legislature 63. People v. Vanderbilt, 26 N. can divest the state of the control Y. 287, 291. and management of this harbor State cannot alienate. In State and vest it absolutely in a prl- ex rel. v. Board of Levee Com'rs, vate corporation. * • * Any 109 La. 403, 422, the power of the grant of this kind is necessarily state to irrevocably alienate its revocable and the exercise of the land under navigable water is trust of the state can be resumed questioned, and Mr. Justice Field at any time." in Illinois Cent. R. Co. v. Illinois, 64. McFadden v. Kerr, 23 N. Y. 146 U. S. 387, l3 quoted approv- Super. Ct. (10 Bosw.) 249. § 399 Lands on Navigable Watees : Wharves. 885 navigable body of water extends to low water mark.^" And a municipal corporation does not lose its rights in land it owns to low water mark of a bay by acquiescing in its use by the public for the purpose of a dock or step."^ Accretions to public grounds of a city bordering on a navigable body of water are additions to such land and belong to the city.'''' A corporation may reserve and use a sufficient portion of accretions for public uses. If more is taken than is required for public use, the riparian owner can sue for a reduction.®^ When the limits of a municipal corporation are extend- ed over adjacent navigable waters, the corporation is not vested with any interest in the land under the water, but merely acquires civil and criminal jurisdiction co-exten sive with its limits.®* 65. Gelgor v. Filor, 8 Pla. 325. 66. Boston V. Lecrow, 58 U. S. (17 How.) 426, 15 L. Ed. 118. G7. Ruge V. Apalachicola Oys- ter Canning and Fish Co., 25 Pla. 656, 6 So. 489. Accretions. The City of St. Louis is a riparian owner on thu Mississippi River and as such is entitled to all accretions as far out as the thread of the stream. .Tones v. Soulard, 65 U. S. (24 How.) 41, 16 L. Ed. 604; St. Louis V. Lemp, 93 Mo. 477, 6 S. W. 344. 68. Louisiana Ice Mfg. Co. v. New Orleans, 43 La. Ann. 217, 9 So. 21. 69. Palmer v. Hicks, 6 Johns. (N. Y, 133). Transfer on condition. A city owning the ground four hundred feet beyond low water mark may convey to a person a portion of the same falling short of the four hundred foot line and between the line and the former grant for the erection of wharves. The first having been conveyed on condi- tion that the grantee would, three months after request by the city, construct wharves therein, which request the city never made. Pur- man V. New York, 10 N. Y. 567. Right of riparian owner. On navigable streams the title of the riparian owner extends only to the ordinary low water line and tl^e riparian owner has no right to erect a wharf beyond low water mark, and if he does so the title to such structure so located fol- lows the title to the bed of the river. Nagle v. Ingersoll, 2 Pa. St. 185, 201; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21, 31; The Geneva, 16 Fed. 874, 876. The City of Norfolk being the owner of land covered by water, both as riparian proprietor and having had long possession thereof may maintain an action of unlaw- ful entry and detainer for posses- sicn thereof, Norfolk City v, Cooke, 27 Gratt. (Va.) 430. 886 Municipal Cobpobations. § 400 § 400. Municipal corporation cannot abdicate control of wharves. Inasmuch as the supreme or ultimate control over such public places as wharves is vested in the legislature of the state, the authority of a municipal corporation over them is derivative and incapable of being delegated Hence, a city may not adopt by-laws or pass ordinances or enter into contracts which cede away control or embar- rass the state in its legislative or governmental powers and duties.^" Thus a city cannot lease its wharves, or " farm out its revenue, or empower any person or corpora- tion to fix the rates of wharfage.''* Nor can it lease land which it has condemned for wharf purposes for a term of years, without conditions, to be devoted to private uses.''^ Accordingly it has been properly held that a grant of power to a municipality "to provide for the location, construction and maintenance of necessary wharfage" does not authorize an incorporated town in Alaska to grant a franchise to individuals to build wharves on the public streets and navigable waters abut- ting thereon, and collect tolls for their use.''* The controlling principle, as stated and explained elsewhere ''* is that public powers conferred upon a mu- nicipal corporation and its officers and agents cannot be surrendered or delegated to others. Nor is a city vested with any proprietary interest in wharves by reason of power conferred on the mayor and common council "to '' erect, repair and regulate public wharves and docks and to regulate the erection and repair of private wharves and to fix the rates of wharfage thereat."'"' 70. III. R. Co. V. St. Louis, 2 72. Belcher Sugar Refining Co. Dillon (U.S.) 70,87,88; Chicago, v. St. Louis Grain Elevator Co., R. I. & P. R. Co. V. People, 222 82 Mo. 121. 111. 427, 437, 78 N. E. 790; Oliver 73. Conrad v. Miller, 2 Alaska V, Burlington, 75 N. J. L. 227, 67 433. Atl. 43. 74. § 383 et seq. ante. 71. Matthews v. Alexander, 68 75. People ex rel. v. Broadway Mo. 115. Wharf. Co., 31 Cal. 33. §§ 401, 402 Battuee : Whabfage. 887 § 401. Batture. Batture is " an elevation of the bed of a river under the surface of the water. It is sometimes used to denote the same elevation of the bank when it has risen above the surface of the water." In common law language, it means land formed by accretion.''* Municipal corporations cannot erect permanent edifices on the batture, to the detriment of riparian owners or to the inconvenience o^ the public, though they may con- struct those which will be of public utility and advan- tage.'''' The legislature may authorize a municipal corpora- tion to appropriate the use of batture, as for the laying off of lots on the same.''* The use of the batture for a landing and wharf is a public use and the fact that it is temporarily farmed out to particular iparties does not alter its public character.''* § 402. Power to charge and collect wharfage. A plain legislative grant of a franchise is necessary to authorize a municipal corporation to charge wharf- 76. Black, Law Diet., tit. "Bat- ture;" Morgan v. Livingston et al., e Mart. (O. S.) La. 19,216; Hoi- lingswortli v. Chaffee, 33 La. Ann 547, 551; New Orleans v. Morris, 3 Woods (U. S. Ct.) 115, 117 Fed Right of riparian owned. Un- til the passage ot the Act of 1853, the City ot New Orleans had the exclusive right of determining when and to what extent the ri- parian owners might occupy the Cas. No. 10,183. batture or alluvlcn within its lim- Batture is a French word, and its. Kenny v. Municipality No. means a sandbank or shoal. Bat- 2, 15 La. Ann. 657. tre, means heat, bea.t as waves. "Under the laws of Prance and A batture is an alluvial elevation Spain batture did not belong to of the bed of a river; in particular, the cities and towns as riparian one of those portions of the bed owners, in th^ sense ot actual and of the Mississippi River which are indefeasible ownership, but solely dry or submerged according to the for the purpose of administration." season. Cent. Diet., tit. "Batture." Heirs of Leonard v. City of Baton 77. Leonard v. Baton Rouge, 39 Rouge, 39 La. Ann. 275, 284. La. Ann. 275, 284, 4 So. 241. 79. Leonard v. Baton Rouge, 39 78. Relny v. Municipality No. La. Ann. 275, 284, 4 So. 241. 2, 12 La. Ann. 500, 502. 888 Municipal Corpoeations. §403 age.^" And if express authority is granted and the man- ner of its exercise prescribed, such mode must be fol- lowed.*^ A municipal corporation may lawfully construct a wharf and still be without power to exact a charge for its use, if the power to collect wharfage has not been expressly conferred.** The right of a municipal corporation to charge and collect wharfage for the use of the wharves it owns is held to be a property right and not a right of sovereignty.** § 403. Same subject — nature of wharfage. Although related to commerce and navigation, as aids and conveniences, wharves are local in their nature. They require special regulation at particular places. In the absence of federal legislation on the subject, the jurisdic- 80. The Geneva, 16 Fed. 874, 876. 81. Conradt v. Miller, 2 Alaska 433, 439; Chester v. Hagan, 116 Fed. 223. 82. The Wharf Case, 3 Bland, c. 361, 384; The Geneva, 16 Fed. 874. 83. St. Louis V. Schulenburg, etc. Lbr. Co., 13 Mo. App. 56. No charge, when. Where, owing to high water, goods were landed beyond a wharf owned by a mu- nicipal corporation it cannot col- lect wharfage for the same. St. Louis V. Schulenburg, etc. Lbr. Co., 13 Mo. App. 56. Regulation of wharfage charges. "It is a doctrine too well settled and a practice too common and too material to the interests of commerce and navi- gation to admit of a doubt that for the use of such structures erected by individual enterprise and recognized everywhere as pri- vate property, a reasonable com- pensation can be expected. And it may be safely admitted also that it is within the power of the state to regulate this compensation so as to prevent extortion, a power which is often very properly del- egated to the local municipal au- thority. Nor do we see any rea- son why, tohen a city or any other municipality is the owner of such structures, built by its own money, to assist vessels landing within its limits in the pursuit of their bus- iness the city should not be al- lowed to act and receive the rea- sonable compensation as well as individuals." Cannon v. New Or- leans, 87 U. S. (20 Wall.) 577, 582; The Geneva, 16 Fed. 874, 876; Murphy v. Montgomery, 11 Ala. 586, 589. §403 Wharfage. 889 tion and control of wharves properly belongs to the state, or by delegated authority to the municipal corporation, where situated. A. license or a certain rate of wharfage is frequently imposed by ordinance on vessels using wharves.** The law appears to be established that a municipal corporation cannot, solely for the benefit of the general revenue, exact a charge on vessels for entering or leaving a port, or remaining therein, nor levy a tax on vessels and water crafts entering its port and using the wharves and landing.*^ But a municipal corporation owning improved wharves and other artificial means which it maintains, at its own cost for the benefit of those engaged in commerce, upon public navigable waters of foe United States, may charge and collect from owners of vessels using its wharves such reasonable fees as will fairly remunerate it for the use of its property.*** 84. Ouachita Packet Co. v. Aiken, 121 U. S. 444; Transpor- tation Co. V. Parkersburg, 107 U. S. 691. Power to charge wharfage. General power over highways, ■wharves, etc., gives no implied authority to charge wharfages. Elizabeth v. The Geneva, 3 Lane. Law Rev. (Pa.) 134. To exact wharfage for the use of a public wharf it must appear that the municipal corporation has ample legislative power. The Geneva, 16 Fed. 874, 876. 85. Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis 4 Dill. (C. C.) 10; Leathers v. Aiken, 9 Fed. 679; Cannon v. New Orleans, 20 Wall. (87 U. S.) 577, 22 L. Ed. 417; The Lizzie E, 30 Fed, 876. 86. United States. Huse v. Glover, 119 U. S. 543; Cannon v. New Orleans, 20 Wall. 577; Packet Co. T. Catlettsburg, 105 U. S. 559; Vicksburg v. Tobin, 100 U. S. 430; Packet Co. v. St. Louis, 100 U. S. 423. Alabama. Murphy v. Montgom- ery, 11 Ala. 586; Demopolis v. Webb, 87 Ala. 659, 6 So. 408. Indiana. A Coal Float v. Jeffer- sonville, 112 Ind. 15, 13 N. E. 115. Iowa. Grant v. Davenport, 18 Iowa 179. Louisiana. Ellerman v. Mc- Mains, 30 La. Ann. 190. Missouri. St. Louis v. St. L. & N. O. Trans. Co., 84 Mo. 156. Texas. Sterrett v. Houston, 14 Tex. 153. United States. Northwestern Union Packet Co. v. Clarksville, 4 Dill. 18, Fed. Cas. No. 10,342; Northwestern Union Packet Co. v. Louisiana, 4 Dill. 17, note. Fed. Cas. No. 10,344. Right to collect wharfage — Illustrations. The extent to which the right may be exercised is purely administrative, and hence 890 Municipal Corporations. §403 An ordinance providing for wharfage dues to be paid by all boats landing at the city wlig,rves is void so far as it applies to boats landing on the natural bank of the river and not at the city's improved wharf. A landing place to become a wharf must be improved for that purpose.*^ Accordingly, an ordinance of the City of St. Paul which imposed a wharfage tax upon every boat or vessel landing or anchoring at, or in front of, the land- ing or wharf of the city was held void, as the tax was not a charge for the use of a wharf but for the privilege of arriving at or departing from the port.** the courts will not limit the amount of the charge. First Mu- nicipality of New Orleans v. Pease, 2 La. Ann. 538. Wharves at the end of public streets extending to navigable wa- ters may be constructed and a charge for the use thereof made, irrespective of the question whether the streets have been reg- ularly opened and condemned as highways or their use as such has been acquii;ed by dedication. Mc- Murray v. Baltimore, 54 Md. 103. Right to wharfage as between the public and private individuals under particular laws. Verplanck V. New York, 2 Edw. ch. (N. Y.) 220; Albany v. Trowbridge, 5 Hill. (N. Y.) 71; Marshall v. Guion, 11 N. Y. 461. An ordinance providing for the collection of wharfage on every steam boat, barge, keelboat, and flatboat which may land, etc., does not authorize the collection of wharfage from a ferry boat. Cin- cinnati V. Walls, 1 Ohio St. 222. In the absence of an ordinance prescribing wharfage dues, a ves- sel need not be for the use of the public wharf. Muscatine v. Keo- kuk Northern Line Packet Co., 45 Iowa 185. An ordinance prescribing fees for the use of wharves is consti- tutional. Keokuk v. Keokuk North- ern Line Packet Co., 45 Iowa 196; Ellerman v. McMains, 30 La. Ann. 190, 31 Am. Rep. 218. Vessels landing at a street laid out upon the bank of a navigable river and paved and maintained at the expense of the city to dis- charge and receive their cargoes need not pay for wharfage facili- ties. Shreveport v. Red River & Coast Line, 37 La. Ann. 562, 55 Am. Rep. 521. 87. Cape Girardeau v. Camp- bell, 26 Mo. App. 12. '88. Northwestern Packet Co. v. St.. Paul, 3 Dill. C. C. (U. S.) 454. §§ 404, 405 Wharfage. 891. § 404. Wharfage charge as an interference with inter- state commerce. The Supreme Court of Missouri held void an ordinance of the City of St. Louis which exacted a license from the owner of a boat (licensed under the laws of Congress for the coasting trade and engaged under that authority in transporting freight upon the Mississippi River from Illinois to Missouri) for the p^vilege "of towing boats or other water craft into and out of the harbor, or from one place to another within said harbor." The court held that the ordinance did not exact the license fee on the ground of compensation for the use of the wharf and could not be construed to demand merely the payment of such wharf charges, although it contained a qualified provision that the amount paid for the license ' ' shall be in lieu of all wharfage during the time said license remains in force." The latter provision was construed to mean that the city would not exact wharfage from the owner of a vessel who had paid the license for the privilege of navigating that part of the river embraced within the city harbor.** § 405 Wharfage distinguished from tonnage. Wharfage is a compensation which the owner of a wharf demands for the use thereof.*" To be valid, it must not be so exorbitant as to constitute a burden on com- merce. The duty of tonnage is a charge, according to the tonnage of the vessel as an instrument of commerce, for the privilege of entering, or loading at, or running in, a port or harbor, and can be laid only by the United States.*^ The question as to which of these classes, if 89. St. Louis V. Consolidated Ct. 732, 27 L. Ed. 584; Ex parte Coal Co., 158 Mo. 342, 59 S. W. Easton, 95 U. S. 68, 76, 24 L. Ed. 103. 373; Benedict, Admiralty (3d 90. Conradt v. Miller, 2 Alaska Ed.), § 283. 433, 439; Transportation Co. v. 91. Huse v. Glover, 119 U. i. Parkersburg, 107 U. S. 691, 2 Sup. 543, 7 Sup. P.t. 213. 30 L. Ed. 487. 892 Municipal Coepokations. § 405 either, a charge against a vessel or its owner belongs, is one, not of intent, but of fact and law ; of fact, whether the charge is imposed for the use of a wharf, or for the privilege of entering the port ; of law, whether, upon the facts which are shown to exist, it is wharfage or a duty of tonnage.*^ A statute giving masters and wardens of a port authority to demand and receive, in addition to other fees, the sum of $5, whether called upon to perform any service or not, for every vessel arriving in the port, is a regulation of commerce and is also a tonnage duty, and is, therefore, unconstitutional.** So an ordinance levying a tonnage tax upon all vessels coming within the harbor of the city (but a small portion of whose water line was improved as a wharf) irrespective of whether they landed at an improved wharf or not, is not valid, as imposing compensation for wharfage service, but is void as a duty of tonnage and is an interference with interstate and for- eign commerce.** But an ordinance which authorizes the collection of a wharfage rate, to be measured by the ton- nage of the vessels which use the wharves, and estimated to be sufficient to light the wharves and to keep them in repair and to construct new wharves as required, is not 'n conflict with the Constitution or any law of the United States.*" § 406. Character of public ferries. A ferry is defined in the early English law as "A liber- ty by prescription or the king's grant to have a boat for 92. Per Justice Bradley, in 94. Cannon v. New Orleans, 20 Transportation Co. v. Parkersburg, Wall. (U. S.) 577, 22 L. Ed. 417. 107 U. S. 691, 696, 2 Sup. Ct. See St. Louis v. Schulenburg & 732, 27 Li. Ed. 584, which was an Boeckler Lumber Co., 13 Mo. App. action instituted in a United 56. States court, to enjoin the prose- 95. Ouachita Packet Co. v. Ai- cution of a suit in a state court to ken, 121 U. S. 444, 7 Sup. Ct. 907, collect a charge against a vessel 30 L. Ed. 976; Packet Co. v. Imposed by ordinance. Keokuk, 95 U. S. 80, 24 L. Ed. 93. Steamship v. Portwardens, 377. 6 WaU. (U. S.) 31. §406 Fereies. 893 passage upon a great stream for carriage of liorses and men for reasonable toll."®* It is said to be "a liberty to have a boat upon a river for the transportation of men, liorses and carriages with their contents, for reason- able toll."" A ferry may be regarded as the continuation of a pub- lic highway from one side of the water over which it passes to the other. In this sense it is a substitute for a bridge, and its end and use is the same.®* A ferry is a right or franchise which cannot be exer- cised in England without the king's license, and in this country it cannot be exercised without a legislative grant. 9S. Termes, De La Ley (1st Am. Ed.), 223; Blisset v. Hart, Willes's Rep. 508; Jacob's Law Diet., tit. "Ferry;" Hunter v. Moore, 44 Ark. 184, 51 Am. Rep. 589; Attorney-General v. Boston, 123 Mass. 460; State v. Hudson County, 23 N. J. L. 206, 209. 97. Black L. Diet. (2d Ed.), tit. "Ferry;" Bouvier Law Diet. (Rawle's Ed.), tit. "Ferry;" State V. Wilson, 42 Me. 9, 20. 98. California. People v. San Francisco, etc. R. Co., 35 Cal. 606, 619. Michigan. Chllvers v. People, 11 ff'-b. 43, 51, defines a ferry as a Uway or thoroughfare across a stream of water or river by boat Instead of by a bridge. New York. New York v. Starln, 106 N. y. 1, 11, 12 N. E. 631. North Carolina. Broadnax v. Baker, 94 N. C. 675, 678. North Dakota. Patterson v. Wollmann, 5 N. D. 608, 612, 67 N. W. 1040, 33 L. R. A. 536. Oregon. Hackett v. Wilson, 12 Ore. 25, 6 Pac. 652; Mills v. Learn. 2 Or. 215. England. HUzzey v. Field, 2 C. M. & R. 432, 440. Transportation of railroad cars across a navigable stream, held not a ferry. In St. Clair County V. Interstate Sand and Car Trans- fer Company, 192 U. S. 454, It was held that the transportation alone of railroad cars for freight loaded and unloaded across a navigable stream (the Mississippi River) was not a ferry within the re- stricted and legal sense of the term; that even though the state, under Its police power might es- tablish, regulate and license fer- ries on navigable streams which are boundaries between It and ad- joining states, such power would not extend to the- regulation and control of such Interstate trans- portation across such streams as are not ferries within the strict technical signification of that term. 59 894 Municipal Cobpobations. §406 In law it is treated as a franchise. It does not belong to the riparian proprietor of the soil.** The state may authorize a municipal corporation to establish and license ferries.^ But it has been held, a city 99. AUhama. Milton t. Had- den, 32 Ala. 30, 38, 70 Am. Dec. 523. California. Chard v. Hanson, 7 Cal. 113, 116. Iowa. Prosser v. Wapello Coun- ty, 18 Iowa 327. Minnesota. McRoberts v. Wash- burne, 10 Minn. 23, 27. New York. New York v. Storm, 106 N. Y. 1, 10, 12 N. E. 631. North Carolina. In re Spease Ferry, 138 N. C. 219, 220, 50 S. E. 625. Pennsylvania. Appeal of Doug- lass, 118 Pa. St. 65, 70, 12 Atl. 834. South Dakota. Evans v. Hughes County, 3 S. D. 580, 54 N. W. 603. Texas. Hudson v. Cuero, etc. Co., 47 Texas 56, 69, 26 Am. Rep. 289. Virginia. Patrick v. Ruffuers, 2 Rob. (Va.) 209, 214, 40 Am. Dec. 740; Roper v. McWhorton, 77 Va. 214, 218. West Virginia. State v. Fandre, 54 W. Va. 122, 123, 132, 46 S. E. 269, 102 Ann. St. Rep. 927, 63 L. R. A. 877. England. Trotter v. Harris, 2 Q. £ J. 285; 2 Washburne on Real Property (3d Ed.), 269. "The franchise of keeping a pubiic ferry, and demanding toll for transportation, resides in the state, and is so Incident to ri- parian ownership that It can be granted to none others than those who own the land at one or the other of Its terminal connections, unless such proprietor or proprie- tors refuse to exercise It; when it may be conferred upon another, who can only obtain the right to use the soil for the purpose, by making compensation, and this even when those termini, are pub- lic roads." Broadnax v. Baker, 94 N. C. 675, 55 Am. Rep. 633, citing Pipkin v. Wynn, 2 Dev. (N. C.) 402. The state may provide for the establishment of ferries, and com- pel a municipal corporation to pay therefor. Simon v. Northrup, 27 Or. 48, 40 Pac. 560, 30 L. R. A. 171; Philadelphia v. Field. 58 Pa. St. 320. 1. Connecticut. Rocky Hill v. Hollister, 69 Conn. 434, 445, 22 Atl. 290. Massachusetts. Atty.-Qen. v. Boston, 123 Mass. 360. Missouri. Cauble v. Craig, • 94 Mo. App. 675, 69 S. W. 49. Power given by municipal char- ter not exclusive to license and regulate ferries does not deprive the state of the same power. Har- rison V. State, 9 Mo. 526. New York. New York v. Starln, 106 N. Y. 1, 10, 12 N. E. 631; New York V. Longstreet, '64 How. Pr. (N. Y.) 30; New York v. New York, etc. Ferry Co., 49 How. Pr. (N. Y.) 250. Ferries established under the au- thority of city charters and op- erated by lessees holding short §40ff POWEES AS TO FeBEIES. 895 may acquire this right by prescription if it has main- tained the ferry beyond the memory of living man." The contrary has been asserted also.* A municipal charter which invests a city with exclusive powers to license a fbrry and authorizes it to grant or refuse the license confers the power to grant an exclu- sive license.* But the right to grant an exclusive license leases given by the corporation, are In judgment of law "set up, established, kept and maintained by the corporation within the true intent and meaning of the char- ters." Benson v. City of New York, 10 Barb. 223, 232. Legislative control of ferry fran- chises, § 223 ante. 2. Laredo v. Marton, 52 Tex. 548; Hartford Bridge Co. v. Ferry Co., 29 Conn. 210, 229. 3. In Bird v. Smith, 8 Watts 434, 438, it is said, "the right of navi- gation, transverse or otherwise, being enjoyed in common, is sus- ceptible of exclusive appropriation only by grant from the public, to whom it belongs, and we have con- sequently no such thing as a ferry by prescriptive right or presump- tive grant of exclusive navigation founded on length of time." In Maine no prescriptive right to a ferry privilege can be ac- quired unless the ferry was estab- lished prior to the Colonial stat- ute of 7 Wm. Ill, of 1695. Day v. Stetsqn, 8 Me. 365, 368. 4. Burlington & Henderson County Ferry Co. v. Davis, 48 Iowa 133, 135, 30 Am. Rep. 390; Costar V. Brush, 25 Wend. (N. Y.) 628,, 631; Mayor v. Starin, 106 N. Y. 1, 25; Laredo v. International Bridge & Tramway Co., 30 XT. S. App. 110, 117. Prohibition to license another ferry does not apply to the leg- islature. An act of the legislative assembly of the territory of Iowa, approved in 1838, granted to Fan- ning, his heirs, and assigns, the right to establish and keep a ferr^ across the Mississippi River at the town of Dubuque for the term of twenty years and the act pro- vided that no court or board of county commissioners should au- thorize any other person to keep a ferry within the limits of the town. Within the next two years an amendatory act authorized Fan- ning: to substitute a horse ferry boat Iji the place of a steamboat. In 1847 an act of the legislature was approved for the incorpora- tion of the City ijf Dubuque. By the fifteenth section power is given to the city council to license and establish ferries across the Mississippi River, from the City of Dubuque to the opposite shore, and to fix the rates of the same. In 1851, the corporate authori- ties granted to Charles Gregoire, and Bogg, his agent, a license to keep a ferry for six years from the first day of April next; it being understood that the city grant all the right it has and no more, with the privilege to land at any point opposite the city he may choose. 896 Municipal Cobpobations. § 406 is not given by virtue of general authority to establish and regulate ferries.' A statute for the incorporation of cities which declares that the common council of a city shall have power to regulate ferries, does not give authority to prohibit the operation of a ferry unless a license be first obtained from the city authorities. Here the power to impose a license, if intended for the purpose of restraint, is expressly declared and therefore not to be inferred from other provisions.* The grant of an exclusive ferry franchise by a munici- pal corporation which has no power to make such exclu- sive grant is void only as to that part which is not author- ized by the city's charter.'' A legislative grant of a ferry franchise to a municipal corporation is not a contract which cannot be impaired by the state but it is within the power of the legislature to regulate such corporation, and, hence, to amend or repeal such grant.* Certain payments and condltlona 526; McEwen v. Taylor, 4 Greene were named In the contract. (Iowa) 532. Held, that Fanning's right did 6. Duckwall v. New Albany, 25 not exclude such a license as this. Ind. 283, 287. The prohibition to license another 7. Carroll v. Campbell, 108 Mo. ferry did not apply to the legis- 550, 567, 17 S. W. 884, 110 Mo. lature, and as it had power to 557, 19 S. W. 809. authorize another ferry the gen- 8. Bast Hartford v. Hartford eral authority to the council to Bridge Co., 10 How. (U. S.) 511, "license and establish ferries 536, wherein the court observes: across the Mississippi River at the "But in order to justify the plain- city" enabled the corporation in tiff in what is set up below there its discretion to grant a license, must not only have been a con- as the legislature might have done, tract or quasi contract but a viola- Fanning V. Gregoire, 16 How. (XT. tion of its obligation. It will S.) 524. therefore be useful to follow out 5. Minturn v. Larne, 23 How. further the nature and condition (U. S.) 435; Carroll v. Campbell, of this supposed contract in order 110 Mo. 557, 19 S. W. 809; State to throw more light on both the ex rel. v. Cramer, 98 Mo. 75, 8 S. questions whether this grant was W. 788 ; State v. Sickmann, 65 Mo. such a contract as the Constitu- App. 499; Harrison v. State, 9 Mo. tion contemplates and whether I* HOT Febeies. 897 In Louisiana the police juries of the several parishes are vested by statute with the exclusive privilege of establishing ferries. A license granted by them is in its nature exclusive, and they have the power to prohibit by ordinance unlicensed ferries from being operated within competitive distance.* § 407. Lease and operation of ferries. A municipal corporation without legislative authority, cannot, under a power to regulate and manage a ferry, lease it, as it is a public highway." In an early Massachusetts case the municipal officers leased a ferry owned by the local corporation with cove- nants for the exclusive right of such ferry privilege. The court held that such covenants will not prevent the exercise by the same officers of the powers vested in them by statute to license another ferry across the same waters has been at all impaired. The au- thority of a legislature may prob- ably supersede such a ferry as la public and across a great public highway of a navigable river, by allowing a bridge over the same place as has before been virtually held by this court (11 Peters 422; 6 Howard 507). It could also alter or abolish wholly the public po- litical corporation to which the grant was made, as this is yearly done in dividing towns and coun- ties and discontinuing old ones. It is therefore clear, that, what- ever in the nature of a contract could be considered to exist in such a case, by a grant to a town of some public privilege there must be implied in it a condition that the power still remained or was reserved in the legislature to modify or discontinue the prlvi- 1 McQ.— 57 lege in future, as the public inter- ests might from time to time ap- pear to require. Charles River Bridge v. Warren Bridge, 11 Pe- ters 421; West River Bridge v. Dix et al., 6 Howard 507. "But while the power of the state to divest the city of this ferry franchise, if it see fit to do so might not be disputed (Wil- liams V. Davidson, 43 Tex. 35; Hudson V. Cuero Sand Co., 47 Tex. 56) yet it will not be held to have done so by mere implication, but it must plainly appear that this was its purpose and Intent before it will be held to have done so." Laredo v. Martin, 52 Tex. 548, 561. 9. Blanchard v. Abraham, 115 La. 989, 40 So. 379. 10. Rocky Hill v. Hollister, 59 Conn. 434. 898 Municipal Cobpobations. § 408 should public convenience and necessity require it. But if an exclusive franchise in the ferry be owned by the city, a license to others would not deprive the lessees of their rights thereto.*^ A municipal corporation granted authority by the state to operate a toll ferry cannot maintain it as a free ferry, but the city council may use discretion as to the rate of toU.^^ A city having charter power to operate a ferry and to fix the rates, fees and rents thereof, may rent such ferry and exercise all other rights of a private person with respect to it except that holding it as an agent for the state for a public purpose, it cannot surrender its management and control to the unrestricted manage- ment and control of another person.^* § 408. License and taxation of ferries, etc. The authority to establish and regulate ferries is not included in the power of the federal government to regu- late commerce between the states, but the right is within the control of the states, although the ferries cross a river which divides two states." The rule is thus declared by the Supreme Court of the United States: "The exac- 11. In re Fey, Petitioner et al., license of ferries, see Reddlck ▼. 15 Pick. (Mass.) 243. Amelln, 1 Mo. 5. 12. Atty.-Gen. v. Boston, 123 To license ferry boats running Mass. 460, 469. across the Detroit River from De- 13. Macdonnell v. I. & G. N. trolt to the shore of Canada, held Ry. Co., 60 Tex. 590, 595. not to be a regulation of commerce. Legislative control of ferry and that the penalty can be im- franchises, see § 223 ante. posed although the boat had been 14. St. Louis V. Waterloo-Car- enrolled and licensed for the coast- ondelet Turnpike Co., 14 Mo. App. ing and foreign trade under the 216; Conway v. Taylor, 66 U. S. United States laws. Chllvers v. 603. People, 11 Mich. 43. License of ferries. So the state Control of Bridges. The United in granting a ferry license may States has jurisdiction of the nav- Impose conditions. State v. Sick- igable rivers, but until congress mann, 65 Mo. App. 499. acts the state has plenary auth- As to ordinances providing for ority over bridges across such riv- §409 Fereies: Navigation. 899 tion of a license fee is an ordinary exercise of the police power by municipal corporations. When, therefore, a state expressly grants to an incorporated city, * * * the power to license, tax and regulate ferries, the latter may impose a license tax on the keepers of ferries, although their boats ply between landings Ij^ing in two different states, and the act by which the exaction is authorized will not be held to be a regulation of com- merce."'* Steam ships registered in their home ports are not subject to tax at another port while temporarily there and engaged in lawful trade and commerce." But steam- boats plying between different ports on a navigable river may, under a state statute, be taxed as personal proper- ty by the city in which the company owning them has its principal oflSce, although enrolled and licensed as coast- ing vessels under the law of the United States." § 409. License for privilege of navigation — regulating or interfering with foreign or interstate commerce. An ordinance of New Orleans, which assessed and directed to be collected from persons owning and running tow boats to and from the Gulf of Mexico and the City of New Orleans, was declared invalid by the Supreme Court of the United States as a regulation of commerce among the states. Mr. Justice Matthews, who delivered era in Its municipal corporations, glnla, 6 Wheat. (19 U. S.) 264, 5 jurisdiction over the construction, L. Ed. 257. repairs and use of those bridges Tax for privilege of exercising within the city. So held respect- franchise of operating railroad tng the Jurisdiction of Chicago partly within and partly without over the Chicago River. Escanaba the state. Is valid. Maine v. Grand V. Chicago, 107 U. S. 678, 2 Sup. Trunlc Ry. Co., 142 U. S. 217. 12 Ct. 185, 27 L. Ed. 442. Sup. Ct. 121, 163, 35 L. Ed. 994. 15. Wiggins Ferry Co. v. East 16. Hays v. Pac. Mall Steam- St Louis, 107 U. S. 365, 374, 2 Sup. sljip Co., 17 How. (U. S.) 596, 15 Ct. 257, 27 L. Ed. 419. L. Ed. 254; People v. Niles, 35 Cal. License of lotteries of municl- 282. pal corporation when licensed un- 17. Transportation Co. v. der federal law. Cohens v. Vir- Wheeling, 99 U. S. 273, 25 L. Ed. 412. 900 MunriciPAii Coepoeations. § 409 tlie opinion of the court, said that the license fee exacted was not a tax upon the boats as property. It was con- tended that the fee exacted was merely a tax on an occupation, and for that reason not a regulation of com- merce. In reply the court observed: "If it were a tax upon the income derived from the business it might be justified by the principle of thg decision in the case of the State Tax on Eailway Gross Eeceipts,^^ which shows the distinction between a tax on transportation and a tax upon its fruits, realized and reduced to possession, so as to have become part of the general capital and property of the taxpayer. But here it is not a tax on the profits and income after they have been realized from the business. It is a charge explicitly made as the price of the privi- lege of navigating the Mississippi Eiver between New Orleans and the Gulf, in the coastwise trade ; as the condi- tion on which the State of Louisiana consents that the boats of the plaintiff in error may be employed by him according to the terms of the license granted under the authority of Congress. The sole occupation sought to be subjected to the tax is that of using and enjoying the license of the United States to employ these particular vessels in the coasting trade ; and the state thus seeks to burden with an exaction, fixed at its own pleasure, the very right to which the plaintiff in error is entitled under, and which he derives from, the Constitution and laws of the United States. The Louisiana statute declares ex- pressly that if he refuses or neglects to pay the license tax imposed upon him, for using his boats in this way, he shall not be permitted to act under, and avail himself of the license granted by the United States, but may be enjoined from so doing by judicial process. The conflict betwe„en the two authorities is direct and express. What the one declares inay be done without the tax the other declares shall not be done except upon payment of the tax. In such an opposition the only question is, which is 18. 15 Wall. (U. S.) 284. § 409 , Navigation License. 901 the stiperior authority; and reduced to that, it furnishes its own answer." ^^ The same court held void an ordinance of the City of Chicago which imposed a license tax for the privilege of navigating the Chicago River and its branches upon steam tugs licensed by the United States, under federal laws. The ordinance provided that, "no person or persons shall keep, use or let for hire any tug or barge or tow boat for towing vessels or crafts in the Chicago River, its branches, or slips connected therewith, without first obtaining a license therefor, in the manner and way hereinafter mentioned." Then followed other sections indicating the amount of the license fee, the manner of its issuance, etc., and imposing a penalty of a fine against any one violating the ordinance. It was a part of the agreed statement of facts that the Chicago River had been deepened and improved for navi- gation by the city at its expense, and the contention was that the license fee was but a reasonable charge for that service. But the court replied: "The license fee pro- vided for in the ordinance of the city is treated as in the nature of a toll or compensation for the expense of deepening the river. But the plain answer to this posi- tion is that the license fee is not exacted upon any such ground, n'^^ is any suggestion made that any special benefit has arisen or can arise to the tugs in question by the alleged deepening of the river." All of the former cases on the subject are examined and fully considered.^" J.9. Moran v. New Orleans, 112 Ed. 216, distinguishing Huge v. U. S. 69, 74, 75, 5 Sup. Ct. 38, Glover, 119 U. S. 543, 7 Sup. Ct. 28 L. Ed. 653. 313, 30 L. Ed. 487, and Sands 20. Per Mr. Chief Justice v. Manistee Improvement Co., 123 Fuller,- In Harman v. Chicago, 147 V. S. 288, 8 Sup. Ct. 113, 31 U Ed, U. a 396, 13 Sup. Ct. 306, 37 L. 149. 902 MUNICIPAI, COBPOBATIONS. Hio § 410. Power to construct and maintain municipal bridges over navigable waters. The Supreme Court of Missouri affirmed the right of the City of St. Louis, under federal,*^ state legislative,** and charter authority,"* to construct and maintain a mu- nicipal free hridge?*\ The City of St. Louis by its "electors at a special elec- tion authorized the issue of bonds to the amount of $3,500,000 for the construction and maintenance of a municipal bridge across the Mississippi Eivier for the 21. Act of Congress of June 26, 1906, authorized the City of St. Louis to construct, maintain and operate a railroad, wagon and foot passenger bridge and approactiea across the Mississippi River at St. Louis, Missouri, and Into the State of Illinois and appropriate and condemn land in hoth states for such purpose. 22. State authority. Const, of Mo. 1875, art. 4, § 53, provides: "The General Assembly shall not pass any local or special laws * • • relating to ferries or bridges, or incorporating ferry or bridge com- panies, except ior the erection of 'bridges crossing streams which form l>oundaries between this any any other state." An act of General Assembly of Missouri approved April 6, 1905, authorized cities of one hundred thousand inhabitants and over to build or acquire by purchase, lease, gift or. otherwise, within or with- out the limits of said city a bridge or bridges or a tunnel or tunnels for public use by railroads, street cars, vehicles of all kinds and pe- destrians, over or under rivers and streams within this state, or forming a boundary between this and other states, and to appro- priate and acquire land by pur- chase, gift or otherwise, for tha approaches and building thereof, and to use and maintain such bridge as a toll or free bridge. i! 6350, 6354, R. S. Mo. 1899, authorized the City of St. Loula to contract a debt or debts 1& ex- cess of the annual Income for any purpose authorized In the char- ter of the city or by any geneiai law of the state. 23. St. Louis charter. Art S, { 26, par. 14, the general welfare clause of the city charter author- izes the mayor and municipal as- sembly to pass such ordinances as may be expedient for the welfare Oj the city, its trade, commerce and manufactures, and to pur- chase, rent or lease within the lim- its of the city, or elsewhere, any real or personal property and to control, manage, sell or lease, or otherwise dispose of the same for such purposes and considerations as they may deem proper for the public welfare of the city," 24. Haeussler t. St. Louis, 205 Mo. 656, 103 S. W. 1034. ^10 POWEB TO CONSTBUCT BRIDGES. 903 public use. In deciding an action brought by tax payers to enjoin the issuance and sale of such bonds the court held: 1. That ample authority existed in the laws of the state under constitutional provisions and in the charter of the city for the construction and maintenance of the contemplated bridge either as a free or toll bridge, for public use, and incurring of a debt therefor.^' 2. That the construction and maintenance of a bridge by a city across a navigable stream is the establishment of a public highway for public use by railroads, street cars, vehicles of all kinds and pedestrians, and being fully authorized by statutory and charter provisions, is the exercise of a legitimate public municipal purpose and is an authorized proper public improvement although a portion of such bridge is necessarily beyond the corpo- rate limits.** 25. It was held (1. e. 680) that the charter authority granted herein was but cumulative author- ity, and that by art. 4, § 53 of the Constitution, the right was re- served to the legislature to pro- vide for the construction of such bridges by local or special laws which must be read Into the char- ter and that It Is sufficient au- thority If the public municipal purpose Is one authorized by any general law of the state. 26. City purpose — beyond city limits. Upon the proposition that such bridge is no less a city pur- pose because a part of the pub- lic highway Is located beyond the city limits, the court quotes ap- provingly from People ex rel. Mur- phy V. Kelly, 76 N. Y. 488, in which Earl, J., observes: "It is Impossible to define in a general way with entire accuracy what a city purpose la, within the mean- ing of the Constitution. Each case must largely depend upon Its own facts and the meaning of these ■words must be evolved by a pro- cess of exclusion and inclusion in judicial construction. * • • On the contrary it would be a city purpose to purchase a supply of water outside of the city and con- vey it to the city and for such a purpose a city debt could be created. So lands for a park for the health and comfort of the inhabitants of a city could be pur- chased outside of the city limits and yet conveniently near thereto. Such Improvements are for the common and general benefit of all the citizens and have always been regarded as within the scope of municipal Improvement; and so too highways or streets leading into a city, or village may be Im- proved, provided the improvements be confined within such limits. 904 Municipal, Cokpobations. ^410 3, That the construction and maintenance of such municipal bridge is not violative of the constitutional provisions that no municipal corporation now existing or hereafter established shall have power to grant public money in aid of or to any individual or corporation whatever or become a stockholder in such corporation,^'' or become a subscriber to the capital stock of any rail- road or other corporation or association or make appro- priation or donation thereto or loan its credit to or in aid thereof.^® 4, That a city may, when duly authorized by, congress, for a puplic purpose construct and maintain a municipal bridge acrpss a navigable stream, one end of which is that they may be regarded as for the common benefit and enjoy- ment' of all the citizens. It can- not therefore well be held, as claimed by the learned counsel for the appellants, that what Is meant by a city purpose, is some work or expenditure within the city limits. There could be no good reason for such a limitation. It could be no worse for a city to incur debt for a city purpose out- side of the city limits th-^i for one within such limits and there 1b just as much reason for allow- ing it to be incurred in the one case as in the other.'' In further support hereof is cited the decision in South St. Paul v. Lamprecht Bros. Co., 88 Fed. 1. c. 454, by Thayer, J., in which he observes: "And the bridge so had in view was of as great advantage to the city as It would have been if located wholly within the corporate boundaries"' and cited to the same effect: Mat- ter of Mayor of New York, 99 N. Y. 569; Pittsburgh v. Brace. 158 Pa. St. 174, 27 Atl. 854; Newman v. Ashe, 9 Baxt. (Tenn.) 380; Minne- sota Land Co. v. Billings, 111 Fed. 972; Chambers v. St. Louis, 29 Mo. 543; Hafner v. St. Louis, 161 Mo. 34, 61 S. W. 632. 27. Const. Mo. 1875, art. 4, | 47. 28. Const. Mo. 1875, art. 9, § 6. The court referred to the follow- ing cases as announcing this doc- trine. Sun Printing £ Pub. Assn. V. Mayor of New York, 152 N. Y. 257; Brooke v. Philadelphia, 162 Pa. St. 123; South St. Paul vv Lamprecht Bros. Co., 88 Fed. 1. c. 454; Prince v. Crocker (Boston Subway Case), 166 Mass. 347, 44 N. E. 446; Walker t. Cincinnati, 21 Ohio St. 1. c. 55, 56; Pleasant Township V. Ins. Co., 138 U. S. 1. c. 74, 11 Sup. Ct 215. 34 U Ed. 864. §410 Powers as to BiuDGtes. 905 in an adjoining state, and for such purpose may acquire and own land beyond its corporate limits and in such other state.''" 29. The opinion of the court in Luxton V. North River Bridge Co., 153 U. S. 525, is cited in which Justice Gray says: "Congress has likewise the power exercised early in this century by successive acts in the case of the Cumberland or National Road from the Potomac across the Alleghenies to the Ohio to authorize the construction of a public highway connecting several states (see Indiana v. United States. 148 U. S. 148, 13 Sup. Ct. 564, 37 L. Ed. 401), and when- ever it becomes necessary, for the accomplishment of any object wSthln the authority of congress to exercise the right of eminent domain and take private lands making just compensation to the owners, congress may do this with or without a concurrent act of the state in which the lands lie. (Van Brocklin v. Tennessee, 117 U. S. 151, 154, 6 Sup. Ct. 670, 29 L. Kd. 845, and cases cited; Cherokee Nation v. Kansas Rail- way, 135 U. S. 641, 656, 10 Sup. Ct. 965, 34 L. Ed. 2„5). 'It may be true," said the court (In Haeussler t. St. Louis, supra), "that under the terms of the ordi- nance and the law the city can grant to railway and street car corporations the right to use the public highways, so constructed, owned and controlled by it but that does not change the owner- ship nor the control. Such is true of every highway controlled by the city. Such privileges can be granted, provided the public way Is not seriously impaired for pub- lic use." » » • "From these premises the con- clusion appears to be Inevitable that although congress may. If it sees fit, and as it has often done, recognize and approve bridges erected by authority of two states across navigable wa- ters between them it may, at its discretion, use its sovereign pow- ers directly or through a corpora- tion created for that object, to construct bridges for the accom- modation of interstate commerce by land, as it undoubtedly may to improve the navigation of rivers for the convenience of interstate commerce by water." In application of the North River Bridge Co. Case, supra, and .passing upon' this question the court further said: "In the case at bar the City of St. Louis, a corporation, has the charter and legal authority to construct this bridge in so far as the State of Missouri and its laws are con- cerned. It has the specific grant from the Federal Government, giving it the power to exercise the right of eminent domain, not only in Missouri, but in Illinois. If congress can charter a cor- poration to build a bridge span- ning from one state to another and clothe it vrith the power to condemn property In either state, It certainly had the power to add this power by grant to the powers already possessed by the City of St. Louis. In short, It congress 906 MuNICIPAl, COEPOEATIONS. Hio 5. That there is express authority in. the constitution and the amended charter of the city for the issuance and sale of such bonds, and such bonds are not illegal because they provide for the "maintenance" as well as the "con- struction" of the bridge, since the law conferring the power contains no restrictions in this respect.'" can create a corporation with such rights. It can grant such rights to one already in existence. Nor where the way provided for is a public way, for public purposes and public use, as in this case, can there be any distinction be- tween granting such rights to a municipal corporation, rather than to a private corporation." 30. The case herein Is dis- tinguished from that of State ex reL T. Wilder, State Auditor, 200 Mo. 97, wherein there was an ex- press constitutional restriction as to the purpose for which the bonds could be issued and the use con- templated did not fall within the restriction while in the case herein there is no constitutional restriction as to the purpose for which the bonds were to be issued except always that the city could not become indebted for anything other than a legitimate, autlior- ized public municipal purpose. \ >