A very large majority of the subscribers proposed to take measures which would surrender the charter, and alien the property, for the purpose of destroying the Corporation. A small number of the subscribers interfered and sought an injunction.

The Vice Chancellor said: "The law allows a corporation having perpetual succession to be constituted; the law allows individuals to acquire a beneficial interest in the preservation of such a body so lawfully constituted. And if these things be so, I am not aware of any principle of law or equity, which can enable that lawfully constituted interest thus obtained, to be taken away, without the consent of every person interested, unless by means of a condition to which the original creation was subject."

In the case of a public power granted to a municipal corporation, a condition is attached by the law itself to the original grant, that it may be varied.

An important proposition connected with this subject, was submitted by the Law Committee of the Board of Aldermen, in January, 1851. On the 21st of that month, they reported the following:

Whereas, The charter of this city, adopted in 1830, as amendatory of the Royal charter, as well as the charter of 1849, were both adopted by a vote of the people; and

66

Whereas, Any amendment to the charter, made by an act of the Legislature, without the formal concurrence of the people, might work a forfeiture of all the chartered rights and franchises of the city; therefore,

"Resolved, That in any amendment for which application shall be made under a resolution of the Common Council, provision shall be made for submitting the same to the people for their approval."

This resolution passed the Board of Aldermen almost

unanimously. It was referred, in the Board of Assistants, to the Law Committee, (January 24, 1851,) who reported against it, which report was adopted, (January 30, 1851.)

The Board of Aldermen passed a resolution of adherence, which came before the Board of Assistants, on the 10th of May 1851, and was referred to the Committee on Finance. The resolution had been accompanied with one respecting the mode of making city loans. And here it ended.

It may be remarked upon this proposition, that as far as the Legislature is concerned, it of course could not prevent that body from passing a law which it was competent to pass at all, without the provision. If the Legislature adopted it in a particular act, it would be a restriction of its own power with its own consent. But it would by no means follow that the Legislature would thus deprive itself of the power to repeal that law, and adopt a new one, without such consent. The proposition that such shall not be a law unless agreed to, or that it shall be a law if agreed to, does not involve the conclusion that it shall forever remain the law unless the repeal is assented to. It will be remembered that I am speaking of those public powers and franchises which are within the admitted authority of the Legislature to change.

31.

Where

tive aid is

Having thus endeavored to show the cases in which the Legisla Legislature has interfered with the powers of the Corporanecessary. tion under the charters, and pointed out some of the principles which govern that right of interference, the next subject of importance is, in what cases has the Corporation necessarily resorted to the Legislature for aid, and when

must it so resort, from the inadequacy of its own powers, conferred or implied.

It will readily be seen that there is a marked distinction between that class of rights, powers and franchises which have been conferred exclusively by acts of the Legislature, and those which are to be found entirely or substantially in the charters.

There is also another distinction, between the modes of exercising powers bestowed in the charters, the remedies which are expressly given or necessarily attach themselves to the grant, and those modes and remedies which are not bestowed, nor necessarily spring from such grants, but are only possessed through an express authorization of the Legislature.

In general it may be observed, that where rights or powers have been newly conferred since the charters, the mode of enjoyment and exercise prescribed by the act conferring them must be strictly pursued. If no mode is pointed out, then the course must be such as is consistent with the acknowledged principles of law, and necessary to give effect to the power or franchise.

The right to establish the Croton Aqueduct, and to take property for that purpose, is a striking example of this class of cases. New property and privileges are newly conferred, and whatever the Legislature has prescribed must be implicitly pursued. Both right and remedy find their source, their extent, and restrictions in the statute.

Again, where the remedy for executing a power given in the charter, is new, and arises solely from an act of Legislative power, the remedy must be resorted to exactly in the mode the statute directs. Any substantial deviation would be unlawful. No ordinance could vary it. Yet an ordinance upon the subject matter could be passed, not

inconsistent with any express provision, but more fully to carry out the plain intent.

For some purposes Legislative aid has always been requisite.

1. The power to lay a public tax, either for general or specific purposes, did not vest in the Corporation under the charters; it probably could not be conferred by the crown alone, being the highest exercise of sovereign authority, but only by parliament or the state.

2. The power to take private property for public use is of the same character, and would not have vested in the Corporation, even if the provision in the charter of Montgomerie, that no land should be taken but by consent, or under some known law of the province, had been omitted. Hence the statute of 1691 gave the authority to the Corporation to be exercised through the intervention of a jury.

3. Again, even if the Corporation did under the charter possess the power of doing any work themselves, and charging it upon the party bound by law to do it; yet clearly they could not make such expenditure a lien upon the property in relation to which the burthen was imposed, or sell the same to defray it.

4. It may be doubted whether the Corporation possessed the power under the charters of assessing particular persons, or any class of persons, for a special benefit, conferred upon them by a public improvement, independently of the benefit they derive in common with others. There are traces of this principle being acted upon under the Dutch government; but when the charters are necessarily looked to as the sources of power, I do not find this right either expressly conferred, or clearly implied as requisite to carry out admitted powers. The decision in The People vs. The

Mayor of Brooklyn, settled the question of the legality of acts of the Legislature for such an object; but went no further.(b)

5. The Corporation can have no legal remedy for enforcing its ordinances, but such are bestowed in the charters, without Legislative assistance. The remedies given ($14) were a distress and sale of goods for the recovery of the fines and amercements for violation of an ordinance, or an action of debt in any court of record; or in any other lawful method to be obtained.

The process by distress and sale was superseded by ordinances of the Corporation, especially that of 1834, c. 48. The clause italicised refers to methods subsequently to be sanctioned.

The Legislation and ordinances respecting swine, show this principle distinctly. The ordinances of 1683, 1692 aud 1719, were perfectly legal, and did every thing which the statute of Oct. 17, 1730, effected, except the additional remedy of impounding and selling stray swine; a provision which was continued in the act of February 27, 1823.

6. The capacity to take and hold land, which belongs to a corporation, aggregate at the common law, was restricted. in the charter of Montgomerie to property, the annual income of which should not exceed three thousand pounds money of the realm of Great Britain. Accordingly we find frequent acts of the Legislature, giving authority to the Corporation to acquire particular parcels of property for specific purposes.

These are instances in which the aid of the Legislature was indispensable, because the charters did not confer the property or power in question. And these examples will

(b) 4 Comstock, 419.