municipalities;' to require, on the application of local authorities that a railroad company shall maintain gates and a gateman at a railroad crossing, to determine the propriety and necessity of the construction of a bridge over railway tracks. But even as an incident to a judicial determination, there are functions which the courts cannot exercise without authority from the legislature; thus a Federal court cannot appoint its marshal to levy and collect a tax for the payment of judgments against a municipality, although mandamus has proved to be unavailing by reason of the evasion and refusal of the municipal officers to act. It will be seen that the powers which a court created pursuant to constitutional direction may exercise, fall far short of the appointment by the court of officers to manage municipal affairs or the exercise of administrative functions in connection therewith. With the affairs of the municipality and the management of its property the courts have no judicial power in the absence of litigation or controversy regularly brought before them. If the courts may select city officials, they may also select those who are to administer the affairs of the county, and it is not going too far to say that they might also be authorized to select State officials. Generally speaking, appointment to office is an 5 1 Matter of Mt. Morris, 41 Hun (N. Y.), 29. 2 People v. Long Island R. Co., 134 N. Y. 506; Palmyra v. Pennsylvania R. Co., 63 N. J. Eq. 601, s c. 63 N. J. Eq. 799; Eckert v. Perth Amboy & W. R. Co., 65 N. J. Eq. 777. See also People v. Delaware & H. Canal Co., 32 N. Y. App. Div. 120; People v. Bd. of Railroad Com'rs, 32 N. Y. App. Div. 179. 3 State v. New York, N. H. & H. R. Co., 71 Conn. 43, 50. It has also been held that the power to pass on a liquor tax license may be left to the decision of a judge. McCrea v. Roberts, 89 Md. 238. Rees v. Watertown, 19 Wall. (U. S.) 107. As to this point and this case, see more fully chapter on Mandamus, post. See also Supervisors v. Rogers, 7 Wall. (U. S.) 175. 5 In Kilbourn v. Thompson, 103 U. S. 168, 190, in discussing the division of powers under the constitutional system of the United States, Miller, J., said: "It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. To these general propositions there are in the Constitution of the United States some important exceptions. . . . In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of the government. It also remains true, as a general rule, that the executive function. True, not every appointment is executive in character, for appointments may be made by judicial officers in the discharge of their judicial duties, and the legislature may appoint the officers necessary to enable it to discharge its duties and to maintain its separate existence. These do not involve an encroachment on the function of any other branch. But appointments which are in no manner connected with the discharge of judicial duties are executive in their character, and fall within the division of power effected by the Constitution.1 The power of the legislature, unless specially restricted by the Constitution, directly to appoint certain officers or agents by name is constantly exercised; and in many cases acts and functions are of such a nature that it is in the author's judgment utterly impossible to say that intrinsically they necessarily belong to one of the three departments of the government rather than to another." § 96 (57). Scope of Legislative Authority. The adjudged cases exhibit some contrariety of opinion respecting the scope of legislative authority over municipal corporations, or rather respecting the question how far such corporations, viewed as legal personalities, and as such representing special rights of the community that is incorporated, are within the operation or protection of the usual constitutional restraints upon legislative power. The present chapter will be devoted to a consideration of this subject. In dealing with questions of this delicate and complex nature we must beware of broad propositions and avoid general speculations. The only wise and safe course is to keep near the shore and within the light of actual adjudications, accompanying these with such observations as seem to be required. The extent of the authority of the legislature over public corporations is strikingly illustrated by an important powers confided by the Constitution to one of these departments cannot be exercised by another." "In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the Crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law, which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative." 1 Blackst. Comm. 269. "The power that makes is not the power to construe a law. It is a wellsettled axiom that the union of these two powers is tyranny.' Per Kent, Ch., in Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, 508. 1 State v. Barker, 116 Iowa, 96. case decided by the court of appeals in the State of Maryland. The legislature in incorporating a railroad company made it its duty to locate its road through three towns specially named, and provided that if it failed to do so, "then and in that case said company shall forfeit $1,000,000 to the State of Maryland for the use of Washington County." The action was instituted for the benefit of the county to recover the $1,000,000, it being alleged that the defendant had not constructed its road in the manner required. The defendant pleaded that since the last continuance of the cause the legislature had passed an act repealing that portion of the charter of the company requiring it to build its road through those towns, and specially remitting and releasing the forfeiture of $1,000,000. The leading question, which was argued on either side by distinguished counsel, was, whether the provision in favor of the county was one of contract (the railroad company having assented to the act), and hence claimed to be inviolable by legislative interference, or whether it was one of penalty and therefore subject to unlimited legislative control. The court held the latter view to be the true one, and that the defendant was not liable. The court also expressed the opinion that if it should be treated as a contract made by the State, yet it was a contract for the benefit of one of its counties, to which the money, if collected, would belong in its political and public capacity as part of the State; and that such a contract did not come within the meaning of that provision of the national Constitution which prohibits a State from impairing the obligation of a contract, so as to prevent the legislature from releasing it at pleasure or discontinuing an action brought for its enforcement in the name of the State. Nor, for like reasons, would it come, we think, within the Fourteenth Amendment of the Federal Constitution. § 97 (58). Offices and Officers; Municipal Officers defined; Mode of Appointment. - Questions have arisen under special constitutional provisions respecting the authority of the legislature over municipal offices and officers. And here it is important to bear in State v. Baltimore & O. R. Co., 12 Gill & Johns. (Md.) 399. Aff'd on error, 3 How. (U. S.) 534; C. & A. R. R. Co. v. Adler, 56 Ill. 344. Although the forfeiture in the case mentioned in the text was to the county (a public corporation), the same doctrine would have applied if the forfeiture had, in such a case, been to a city or municipal corporation. Infra, § 104. A public corporation has no vested right to fines directed to be paid to it, and the legislature may release them. No contract in such cases is thereby violated, for none exists. Coles v. Madison County, Breese (Ill.), 115; Holliday v. People, 10 Ill. 216; Conner v. Bent, 1 Mo. 235; Rankin v. Beaird, Breese (Ill.), 123; post, § 105. Effect of executive pardon on fines going to county. Holliday v. People, 10 Ill. 216. mind the before-mentioned distinction between State officers that is, officers whose duties concern the State at large, or the general public although exercised within defined territorial limits — and municipal officers, whose functions relate exclusively to local concerns of the particular municipality. The administration of justice, the preservation of the public peace, and the like, although confided to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of local gas-works, of local water works, the construction of local sewers, and the like, are matters which ordinarily pertain to the municipality as distinguished from the State at large. The Constitution of Michigan enjoined upon the legislature to "provide for the incorporation and organization of cities and villages," gave it authority to confer upon them such powers of a local legislative and administrative character as it should deem proper, and contained the further provision that "judicial officers of cities and villages shall be elected, and all other [municipal] officers shall be elected or appointed, at such time and in such manner as the legislature may direct"; and it was held by the Supreme Court of the State in a cause that underwent great consideration, and in which the judges delivered separate opinions, that while the legislature was left free to appoint officers not municipal, such, for example, as a board of police commissioners in and for a city, yet that it was restrained by the above-mentioned provisions, especially by the one last quoted, from itself directly appointing municipal officers whose duties and authority were plainly and exclusively local, such as the board of water commissioners and board of sewer commissioners for a particular city." 1 In People v. Hurlbut, 24 Mich. 441. stitutional); infra, § 103; Hathaway The distinction mentioned in the text v. New Baltimore, 48 Mich. 251; State is there accurately drawn, and clearly v. George, 23 Fla. 585; cited and folstated and illustrated in the admirable lowed, State v. Barker, 116 Iowa, 96, opinion of Campbell, C. J. It is approved 106; quoted and approved, Lexington and applied in Chicago v. Wright, 69 Ill. v. Thompson, 113 Ky. 540, 550; ante, 318; People v. Draper, 15 N. Y. 532, §§ 31, 34, 40. See chapter on Corporate Denio, J.; Re Woolsey, 95 N. Y. 135; Officers, post. Astor v. New York, 62 N. Y. 580, 567. The text is cited and applied in Britton r. Steber, 62 Mo. 370. See and compare People v. Lynch, 51 Cal. 15; Schumacher v. Toberman, 56 Cal. 508. Opinion of McKinstry, J., and of Cooley, J., in People v. Detroit, 28 Mich. 228. Text approved. Burch v. Hardwicke, 30 Gratt. 24; U. S. v. Memphis, 97 U. S. 284; post, § 119, 122; People v. Curley, 5 Colo. 412; State v. Hunter, 38 Kan. 578 (metropolitan police act giving the city council power to appoint a board of police commissioners held con 2 People v. Hurlbut, supra, distinguished from People v. Mahaney, 13 Mich. 481; ante, § 15, and notes. People v. Detroit, 28 Mich. 228, People v. Hurlbut is explained and its doctrine adhered to, and it was held that the board of park commissioners for Detroit, selected by the legislature without its consent, were not the officers or representatives of the city. Infra, §§ 119122. So, under the Constitution of Kentucky, which contains a provision that "officers of towns and cities shall be elected for such terms, and in such § 98. The Right of Local Self-Government; Decisions denying Right. — Independently of any constitutional guarantee an inherent right of local self-government which is beyond legislative control has been asserted to defeat legislation depriving or tending to deprive the corporation of the control of some part of its affairs. The occasion for the assertion of the right has usually been the enactment of a statute depriving a city or other public corporation of the power to appoint an officer or board exercising local functions, and conferring the power of appointment on the executive, or mandatory legislation for a local improvement, for the incurring of debt, the issue of bonds, or the payment of a claim, or a statutory enactment prescribing the terms and conditions of contracts by the municipality. Such legislation has frequently caused the courts to consider the abstract question whether a municipality has any inherent right of local self-government which is beyond legislative interference, and much has been said in support of or against the existence of the right, which should be construed as having reference only to the question before the court on the facts of the particular case, although couched in language so sweeping as to give it general application. It must now be conceded that the great weight of authority denies in toto the existence, in the absence of special constitutional provisions, of any inherent right of local self-government which is beyond legislative control. The Supreme Court of the United States has declared that a municipal corporation in the exercise of all its 1 1 Barnes v. District of Columbia, 91 U. S. 540. In other cases the Federal Supreme Court has used similar language in characterizing municipal corporations. See United States v. Railroad Co., 17 Wall. 322, 329; Laramie County v. Albany Co., 92 U. S. 307; Mount Pleasant v. Beckwith, 100 U. S. 514, 524; Meriweather v. Garrett, 102 U. S. 472, 513; Metropolitan R. Co. v. District of Columbia, 132 U. S. 1, 8; Williams v. Eggleston, 170 U. S. 304, 310; Atkin v. Kansas, 191 U.S. 207; supra, § 92. manner, and with such qualifications, mond Mayoralty Case, 19 Gratt. (Va.) as may be prescribed by law," and 673; infra, §§ 103, 119-122. "shall reside within their respective districts," it was held that the legislature could not authorize the governor to appoint municipal officers, since the Constitution requires that they shall be elected by the voters of the town or city. Speed v. Crawford, 3 Met. (Ky.) 207. But it was also likewise held that it was within the power of the legislature to pass an act depriving the mayor and council of a designated city of the power to elect the police force thereof, and establishing, instead, a board of police for the city and the county in which the city was situate, to be elected by the qualified voters of the city and county, and that this board, thus elected, should select and enroll the permanent police force of the city, which, it was provided, should be taxed to pay them. Police Commissioners v. Louisville, 3 Bush (Ky.), 597; Lexington v. Thompson, 113 Ky. 540. See Rich The origin of municipal incorporation in England and in the United States and the right to local self-government in these countries are examined and discussed by Mr. Amasa M. Eaton, of Providence, in a learned and scholarly paper before the American Bar Association. Reports of Am. Bar Ass., 1902, pp. 292-372; 13 and 14 Har |