porations and their rights are protected by constitutional provisions, express or implied, they are removed from legislative control, but no further, as we shall see in a subsequent chapter. But the provisions of the several Constitutions in reference to municipal institutions and local government are sufficient, it is believed, to establish that the legislative power over them and their existence is not transcendental and unlimited. Although the Constitution of a State may recognize the municipal corporation of an important city by fixing the number of certain officers, and providing for their election, &c., yet this does not make the charter of the city a constitutional charter conferring powers beyond the control of the legislature.2 § 71 (46). Prohibition of Special Acts conferring Corporate Powers. The Constitution of Kansas as well as of Ohio, in the article entitled "Corporations," contains a provision that “the legislature shall pass no special act conferring corporate powers," 3 and the 1 21 Wend. 563 (division of counties); ante, §§ 15 et seq. In People v. Hurlbut, decided by the Supreme Court of Michigan, in 1871, 24 Mich. 44, this subject is largely and learnedly examined by Mr. Justice Cooley, who, conceding to the State full authority to shape and control municipal organizations at its will, nevertheless maintained that there were, in the Constitution of that State, both express and implied restrictions upon the legisla tions, and that local governments and the right of the people to them were secured by the Constitution, and did not exist by the favor and at the mere pleasure of the legislature. And in the same case the court decided, under a special provision of the Constitution of the State, elsewhere noticed, that the legislature could not appoint, for a city corporation, officers whose duties were purely local and strictly municipal. The discussions by all of the judges are unusually interesting. Ante, §§ 11-14, 22; post, chap. iv. People v. Draper, 15 N. Y. 532. Brown, J., says: "When the present Constitution was formed, the entire territory of the State was separated and appropriated by its civil divisions, its counties, cities, and towns. These civil divisions are coeval with the tive dominion over municipal institugovernment. The State has never existed a moment without them. All our thoughts and notions of civil government are inseparably associated with counties, cities, and towns. They are permanent elements in the frame of government; they are institutions of the State, durable and indestructible by any power less than that which gave being to the organic law. They are, however, subject to control and regulation by the legislature. It may enlarge or circumscribe their territorial limits, increase or diminish their numbers, separate them into parts, and annex some of the parts to parts of others; but they must still assume the form and be known and governed only as counties, cities, or towns. The State at large is, and ever has been, an aggregate of these local bodies." To same effect in same case, 15 N. Y. 541, per Denio, C. J. And see also opinion of Allen, J., in People v. Albertson, 55 N. Y. 50. See also People v. Morrell, 2 Baltimore v. Board of Police, 15 Md. 376. See also Paterson v. Society, &c., 24 N. J. L. 385. 3 Constitution of Kansas, art. xii. $$ 1 and 2 of art. xiii. of the Constitution of Ohio are the same as § 1, art. xii. of the Constitution of Kansas. § 6, art. xiii. of the Ohio Constitution is the same as § 5, art. xii. of the Kansas Constitution. There is a similar constitutional provision in Nebraska, and Supreme Courts of those States have decided that the provision applied to municipal as well as private corporations,' and that the effect was to compel the legislatures of those States to regulate the grant of powers to municipal corporations by general laws. Hence an act specially amending the charter of a city in respect to making local improvements or assessments, or specially extending the limits of a particular city,3 is unconstitutional; and so, it seems, is an act which authorizes a city by name to issue its scrip for a particular purpose, and to levy taxes to pay it in aid of a single enterprise, perhaps in other States. This provision construed (Clegg v. Richardson Co., 8 Neb. 178; Dundy v. Richardson Co., 8 Neb. 508), and held to invalidate certain bonds issued under a special law. S. P. School District v. Insurance Co., 103 U. S. 707. The Constitution of California declares that "all laws of a general nature shall have a uniform operation." Under this clause it is held that an act exempting particular cases from the operation of a general law is unconstitutional. Omnibus R. R. Co. v. Baldwin, 57 Cal. 160, where a special act authorizing the construction of a street railway was held void for attempting to exempt the railway company from the operation of the general law relating to street railways. Ante, $70; post, § 73. 2 tax levy, held to be unconstitutional because it granted authority to such cities to appoint a board of control, thus conferring corporate powers by special act). See post, § 129. Wyandotte v. Wood, 5 Kan. 603; State v. Cincinnati, 20 Ohio St. 18. In the case last cited, the Supreme Court of Ohio, under the constitutional provision quoted in the text, held that the legislature cannot by special act create a corporation, nor by special act confer additional powers on a corporation already existing; and that in these respects there was no difference between private and municipal corporations, since the Constitution equally embraced and equally applies to both classes; and, therefore, the Act of April 16, 1870, "to prescribe the corporate limits Atchison v. Bartholow, 4 Kan. 124; of Cincinnati," being considered a speWyandotte City v. Wood, 5 Kan. 603; cial act, was adjudged void. See also State v. Downs, 60 Kan. 788; State Atkinson v. Marietta & C. R. Co., v. Cincinnati, 20 Ohio St. 18, following 15 Ohio St. 21. In this case RanAtkinson v. Marietta & C. R. Co., 15 ney, J., thus expounds the Constitution: Ohio St. 21. In New Jersey a similar "These provisions of the Constitution provision is held to apply exclusively are too explicit to admit of the least to private corporations. State v. doubt that they were intended to disNewark, 40 N. J. L. 550, 558; State, Board of Health v. Diamond Mills Paper Co., 63 N. J. Eq. 111; 64 N. J. Eq. 793; Van Cleve v. Passaic Valley Sewerage Com'rs, 71 N. J. L. 18; s. c. on appeal, 71 N. J. L. 574. In Carson v. St. Francis Levee Dist., 59 Ark. 513, the Supreme Court of Arkansas expressed the opinion that a similar provision applied exclusively to private corporations, although the ground of decision in that case was that, whether it applied to public or private corporations, it did not apply to quasi corporations such as levee districts. 2 Atchison v. Bartholow, 4 Kan. 124; Gilmore v. Norton, 10 Kan. 491; State v. Pugh, 43 Ohio St. 98 (an act to reorganize cities of the first grade of the second class, and to reduce their able the General Assembly from either creating corporations, or conferring upon them corporate powers by special acts of legislation. It was intended to correct an existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power; of making such law applicable to all parts of the State, and thereby securing the vigilance and attention of its whole representation; and finally, of making all judicial construction of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class. We must give such a construction to the Constitution as will preserve its leading objects intact." Supra, §§ 61, 70. the court inclining to hold such an enactment to be a special act, and one which undertook to confer corporate powers.1 It was decided that while the provision of the Constitution of Kansas that forbids the legislature to pass "any special act conferring corporate powers" includes municipal corporations proper, it does not embrace quasi corporations, such as school districts, although the latter are declared by statute to be bodies corporate.2 In Cali 1 Commercial National Bank v. Iola, 2 Dillon C. C. R. 353. In this case Dillon, Circuit Judge, delivering the opinion of the court, and referring to the opinion of Ranney, J., quoted in the last note, observed: "One of the objects of the constitutional provision in Kansas, as well as in Ohio, was to cut up by the roots the mischief of special legislation, particularly in respect to corporations, both public and private. This object would be defeated if the special act relating to the city of Iola could stand. If under the doctrine of Butz v. Muscatine, 8 Wall. 575, this court is not absolutely bound, in this class of cases, to follow the interpretation of the State Constitution given by its highest court, yet it seems that it ought to follow it where it appears to rest upon solid grounds, and was made in cases and in respect to questions where there was nothing to warp the judgment of its judges, and where the interpretation was settled or had been declared at the time the act in controversy was passed. In a recent case on this subject, decided by the Supreme Court of the United States, it is not denied that the Supreme Court of a State is the appointed expositor of its Constitution and laws, and that the Federal courts will adopt as rules for their own judgments the decisions of the highest courts of the State 'respecting local questions peculiar to itself, or respecting the construction of its own Constitution and laws.' It only denies the binding force of State adjudications which rest upon the general principles of law, and not upon the meaning of special constitutional or legislative provisions. Olcott v. Supervisors, 16 Wall. 678. I think the present case is one in which it is the duty of this court to follow the decisions of the State Supreme Court; and so far as my judgment rests upon the special provisions of the Constitution above referred to, I place it upon the State adjudications without an inquiry into their soundness." The bonds in this case were held invalid mainly on the ground that they were not issued for a public purpose. The judgment of the Circuit Court was affirmed. 20 Wall. 655. See also Savings Assoc. v. Topeka, 3 Dillon, 276; post, § 319; also chapter on Contracts. Further, as to the construction of the provision that "corporate powers" shall not be conferred by special act, see School Dist. v. Ins. Co., 103 U. S. 707; State v. Cincinnati, 20 Ohio St. 18; Morawetz on Corp. (2d ed.), §§ 1013, and cases cited. Construction of constitutional prohibition against granting right "to lay down railroad tracks in streets by local or private act," see post, chapter on Streets. The 2 Beach v. Leahy, 11 Kan. 23. Under the constitutional provision in question the Supreme Court of Kansas, in State v. Maloy, 20 Kan. 619, ruled the following points as stated by the judges: The act of the legislature entitled "An act authorizing cities therein named to become cities of the second class," approved February 29, 1872, is a special act, conferring corporate powers upon four particular municipal corporations, and is therefore unconstitutional and void, being in contravention of § 1 of art. xii. of the Constitution, which provides that "the legislature shall pass no special act conferring corporate powers.' city of Council Grove was organized as a city of the second class, under said special act, and was never organized as a city of the second class under any other act, and has never had a population of two thousand inhabitants. And it was therefore held that said city is not legally a city of the second class. See also State v. Board of Com'rs of Shawnee County, 57 Kan. 267. In Carson v. St. Francis Levee Dist., 59 Ark. 513, the court held that under a similar provision of the Constitution of Arkansas a special law creating a levee district and conferring special powers upon it did not violate the Constitution of that State. The fornia an act of the legislature which grants to individuals and their assigns certain powers and privileges, and then provides that the act shall not take effect unless such persons within a given time shall organize themselves under existing laws into a corporation, is a grant, not to the individuals as persons, but to the corporation when formed.1 § 72 (47). Any Body Politic or Corporate construed. A constitutional provision that two-thirds of the General Assembly “shall be requisite to every bill creating, continuing, altering, or renewing any body politic or corporate," was held by a majority of the Court of Errors, reversing the majority view of the Supreme Court in the same case, to extend to public and municipal as well as private corporations. The constitutional provision, however, that "no bill shall contain more than one subject, which shall be clearly expressed in its title," is limited to State legislation and has no application to municipal ordinances.3 § 73 (49). "Municipal Purpose," what? - The Constitutions of some of the States contain a provision that corporations shall not Constitution of Wisconsin prohibited the legislature from enacting any special or private law granting corporate powers or privileges except to cities. In State v. Stewart, 74 Wis. 620, the court had under consideration a special act creating a quasi corporation for drainage purposes. The conclusions which the court arrived at were that this law fell within the police power; that the drainage commissioners exercised under it a police authority intended to promote the public health and welfare, and that while the question was not free from doubt it was of the opinion that the legislature had the power to enact the law. holders of the bonds, and providing for their reincorporation, was held to be in violation of this provision and void. State v. Stark, 18 Fla. 255. See on this subject, however, chap. ix., post. But an act creating a new class of municipal corporations, imposing upon all the cities of the new class the same powers and duties, is lawful under the provision. Lake v. Florida, 18 Fla. 501. See post, chaps. ix. and x. 2 Purdy v. People, 4 Hill (N. Y.), 385; rev'g 2 Hill, 31. What is an alteration within this provision; Corning v. Green, 23 Barb. 33; Smith v. Helmer, 7 Barb. 416; Morris v. People, 3 Denio (N. Y.), 381. Where a Constitution requires that acts of incorporation shall have "the assent of at least two-thirds of each house," the word "house" means the members present doing business, these being a quorum, and not a majority of all the members elected. Railroad Co., 2 Mich. 287. Southworth v. San Francisco v. S. V. W. W., 48 Cal. 493. Such an act is an attempt by the legislature in violation of the Constitution to confer powers and privileges upon a corporation by special act. Ib.; post, § 73. The Constitution of Florida provides that "the legislature shall establish a uniform system of county, township, and mu- 3 Humboldt v. McCoy, 23 Kan. 249; nicipal government." An act author- Green v. Indianapolis, 25 Ind. 490; izing the dissolution of municipal cor- Chicago Union Traction Co. v. Chicago, porations having a bonded indebted- 207 Ill. 544; Ex parte Haskell, 112 ness, the bonds being due, unpaid, and Cal. 412; St. Louis v. Weitzell, 130 unprovided for, upon the written appli- Mo. 600; Topeka v. Raynor, 61 Kan. cation of one-half of the owners or 10. be created by special acts except for municipal purposes. What is a municipal purpose within this provision has been several times considered. It has been said that in the contemplation of this provision municipal affairs are public affairs, and municipal purposes are public or governmental purposes as contradistinguished from private purposes. A corporation, therefore, created for municipal purposes is a corporation created for public or governmental purposes, with political powers to be exercised for the public good in the administration of civil government, whose members are citizens, not stockholders; it is an instrument of the government with certain delegated powers, subject to the control of the legislature, and its members are officers or agents of the government for the administration or discharge of public duties. An act incorporating a board of commissioners for filling up certain slough ponds in the city of St. Louis was held to create a corporation for municipal purposes within the meaning of the Constitution. An act creating a board of park commissioners was considered to constitute them a corporate authority, the object of their creation being municipal in its character.* So a corporation to carry on a public school and raise funds for its support. A separate district, with defined boundaries, embracing certain cities, and created a corporation with the usual corporate powers, for the purpose of improving the navigation of a river, has also been held to be a corporation for municipal purposes.* § 74 (50). Legislative Duty held to be Discretionary. The Constitutions of several of the States contain, substantially, this pro 2 Cook v. Port of Portland, 20 Oreg. 580, 583. State, ex rel. Choteau, v. Leffing- of corporate power, and therefore canwell, 54 Mo. 458, where the subject is not be made to a private corporation elaborately discussed, and the conclu- by special act. Ib., ante, § 71. As to sion reached was that corporations for what are "municipal purposes" under "municipal purposes" under the Con- the provisions of the California Constistitution of Missouri must be connected tution relating to freeholders or "homewith the municipal corporation itself, rule" charters, see ante, § 63. and be instituted for the purpose of carrying out some of the objects of the municipality. Under the Constitu- 3 St. Louis v. Shields, 62 Mo. 247. tion of California, which provides that People v. Salomon, 51 Ill. 37. "corporations may be formed under Horton v. Mobile School Com'rs, general laws, but shall not be created 43 Ala. 598. See comment of Wagner, by special act, except for municipal J., on this decision in St. Louis v. purposes," a corporation cannot exer- Shields, 62 Mo. 247. A school district cise any powers except those conferred is a corporation for municipal purby general laws. The legislature can- poses within this provision of the New not confer on private corporations any York Constitution. Board of Edupowers or grant them any privileges by cation v. Board of Education, 76 N. Y. special act. San Francisco v. S. V. W. App. Div. 355. W., 48 Cal. 493. A grant of an easement in a street made by the legislature to a corporation, is purely a grant 580. Cook v. Port of Portland, 20 Oreg. |