litical corporation, and a great extent of rights, interests, and franchises, held in a private capacity.

28.

State de

&c., upon

tered

I shall now endeavor to state in detail the cases in which it has been held directly, or inferentially, that the Legisla- cisions, ture has the power of interfering with the charters. the charIn Sutton vs. Sutton, cited by Chancellor Kent, (Notes p. rights. 149,) it was held by the Superior Court of the city of New York, (Jones presiding,) that the statutory provisions authorizing the appointment of measurers of grain, and regulating the measurement, superseded the power given in the charter to appoint measurers.

That power was conferred by the 19th section of Montgomerie's charter. giving and granting to the Mayor, Al-` dermen and Commonalty, "the office of measurer of and in the said city, to measure salt, wheat, oats, and other grain, and all other merchandize, measurable, or to be measured within the said city. To have and to hold the said office (and others) and to exercise the same by themselves or their deputies, and to take and receive to themselves all fees, profits and perquisites to the said offices, due or to become due, and all the fines and forfeitures to be laid concerning the same."

An act of the Legislature was passed on the 14th of April, 1832, (Sess. Laws, p. 219,) which regulated the measurement of grain in the city, and directed the appointment of a Measurer General, and between ten and twenty measurers, by the Governor, with the consent of the Senate. The act also declared that no person except those appointed under it, should measure any grain in New York for hire or reward.

By the 4th section, the measurer who performed the services was entitled to seventy-five cents for every hundred bushels measured by him.

Chief Justice Jones delivered the opinion of the court, and held, that the grant to appoint measurers was a grant of political power coupled with no interest, save the fees as a compensation for measuring; and that the grant was not to be considered in the light of property, or intended as a source of revenue; that the Legislative act was valid, and the grant in the charter so far controlled.

This decision was made before 1836. It may be observed that one point determined by the court, in Maryland, in the leading case of the Regents, &c., vs. Williams, 9, Gill. and John., 366, and hereafter stated, coincides with this decision of the Superior Court.

Chancellor Kent observes, that if this were the true construction of the power of the Legislature over the charter, the same rule would seem to apply to every other part of the section, for the whole rests upon the same principle. It was a strong case to show the dependence of charter franchises on Legislative discretion, except where the franchise is a matter of private interest."

On the 1st of May, 1835, a statute was passed for appointing measurers of merchandize in New York, in the same manner as by the act of 1832. But on the 16th of May, 1836, another statute was passed, which by implication admitted a concurrent power in the Corporation to appoint such measurers.

We find in the ordinances of 1839, a provision for the appointment of fifty-two measurers for the city, and the fee for measuring grain or salt was fixed at seventy-five cents the bushel.

And so in 1845, this ordinance, with some variations, was renewed.

The construction of the act of 1836, has probably there

fore led to the conclusion that the power of appointing measurers of grain was concurrent.

But now, by the 8th section of the 5th article of the constitution of 1846, (§ 8,) all offices for the weighing, guaging, measuring, culling or inspecting any merchandize, produce, manufacture, or commodity whatever, are abolished, and no such office shall hereafter be created by law; but nothing in this section contained shall abrogate any office created for the purpose of protecting the public health, or the interests of the state in its property, revenue, tolls, or purchases, or of supplying the people of the state with correct standards of weights and measures, or shall prevent the creation of any office for such purpose hereafter.

Another case of importance is that of The Mayor, &c., vs. Orderau, (12 Johnson Rep., 125.) A statute had been passed in 1801, for the better government of the city, and to grant certain additional powers to the Corporation; among others, to regulate the keeping of gunpowder, and providing for the forfeiture thereof if the same was kept contrary to law. They were also empowered to impose a penalty. The counts of the declaration, which were demurred to, set forth breaches of the ordinance in keeping one thousand one hundred pounds of gunpowder at one time, within the prohibited limits, and demanded the sum of one thousand three hundred and seventy-five dollars.

The court declined expressing an opinion whether under the act, the Corporation could impose a penalty as well as the forfeiture; being of opinion that the power conferred by the act had not been properly executed. That it was clearly the intention that only one penalty of two hundred and fifty dollars should be exacted for any one offence, for a violation of the by-law in any one transaction.

"If it be conceded," says the Chief Justice, "that the by-law in question was authorized by the general powers conferred by charters, yet the application of the Corporation to the Legislature, and the latter having, in several instances, legislated on the subject of the by-law, operates as a limitation to any general and undefined powers in the charters."

In the Mayor vs. Nichols, (4 Hill, 20,) a general statute, (2 R. S., 574, § 6, 1830,) abolished in effect the inspection of hay over the whole state. The Corporation of New York passed an ordinance in 1839, making it the duty of the inspectors, to cause all pressed hay to be inspected and weighed, and prescribing a forfeiture of five dollars for every bundle sold without being inspected. The court held, that the statute had authorized the sale of hay without inspection, and the Corporation had no right to repeal or supersede it. The seller was only required to prepare. it for market, in the manner directed in the act, under the penalties therein specified. Although the ordinance in this case was dated after the statute, the reasoning of the court would as fully apply to one passed before. In fact there had been a similar ordinance before the statute. was but a revised publication of it.

This

Closely connected with this subject is the case of The People vs. Morris, (13 Wendell, 325.) The charter of the village of Ogdensburgh, authorized the trustees of the village to grant licenses for keeping a grocery, to sell liquors therein, &c. This charter was granted in 1824.

The defendant had taken out such a license. The statute of 1830, (1 R. S., 677.) provided a system of license for every town in the state; creating the supervisors and justices of the peace, commissioners of excise, with the power to grant licenses to keepers of inns and taverns and

to grocers to sell liquors, but not to be drunk in their houses. By the 27th section, the provisions were not to extend to the city of New York, nor shall they impair the power of any corporation of any other city or town, or of the trustees of any village specially authorized by law, to grant licenses to sell liquors; but such powers shall be executed in the manner herein prescribed by such corporation or officers authorized by it, instead of the Board of Commissioners of Excise herein created.

It was held that the power granted by the village charter, was wholly political. "Political power, conferred by the Legislature, is a public trust, to be executed, not for the benefit or at the will of the trustee, but for the common good; how long it shall exist, or in what manner it shall be modified, are questions independent of these depositories, and belong exclusively to the people to determine in the mode prescribed by the constitution."

It was held that the act of the Legislature superseded the village charter so far as to abolish the clause of the licenses which empowered a grocer to sell liquor to be drunk in his house; although the trustees continued to be the officers to grant the licenses.

See also Harrington vs. Trustees of Rochester, (10 Wendell, 541.)

An instance of an act of the Legislature, operating concurrently with the powers conferred in the charter, is to be found in the case of Furman vs. Knapp, (19 John. Rep., 248, 1821.) By a law of the state to regulate inns and taverns, (1 R. S., 1813, 176,) licenses to sell spiritous liquors by retail, were to be granted by a Commissioner of Excise, appointed for the city of New York by the Governor, with various regulations respecting the license, and a penalty for selling by retail without it. The Commis