between State officers and municipal officers, the Supreme Court of Missouri held that the mayor of a city was not an officer under the State, within the meaning of a constitutional provision, giving the Supreme Court jurisdiction only when title to an office under the State is in contest.1 § 103 (60). Police Officers; Mode of Appointment. It has been several times determined that the legislature may, unless specially restricted in the Constitution, take from a municipal corporation its charter powers respecting the police and their appointment, and by statute itself directly provide for a permanent police for the corporation, under the control of a board of police not appointed or elected by the corporate authorities, but consisting of commissioners named and appointed by the legislature or by the governor, or otherwise appointed as the legislature may in its discretion direct. Police officers are in fact State or public officers, and not private or corporate officers. And a provision in such a law, transferring to such commissioners, for the purposes of the new police, the use of the police telegraph, station-houses, watchboxes, etc., provided by the corporation, is valid since it only takes city property dedicated to a particular use and applies it to the same purpose, changing only the agency by which the use is directed; the property is still the city's.2 may be vested with power to appoint other officers for the village; but until an election of some officer or officers of the village is made by the electors thereof, there can be no village authority in which the appointing power can be vested by the legislature." Cole v. Black River Falls, 67 Wis. 110; State v. Krez, 88 Wis. 135. create any office, the term of which shall 1 Britton v. Steber, 62 Mo. 370. A State officer may be connected with some of the municipal functions, but he must derive his powers from a State statute, and execute his powers in obe- 2 Baltimore v. Board of Police (afdience to a State law. State v. Valle, firming validity to the Baltimore police 41 Mo. 29. Aldermen and common bill), 15 Md. 376; Americus v. Perry, councilmen are considered "civil offi- 114 Ga. 871; State v. Denny, 118 Ind. cers" within the meaning of the pro- 382; Evansville v. State, 118 Ind. visions of the Constitution of Rhode 382, 426; State v. Denny, 118 Ind. Island relating to the qualifications of 449; State v. Fox, 158 Ind. 126; State voters. In re The Newport Charter, 14 v. Barker, 116 Iowa, 96; State v. HunR. I. 655. Water committee with stat- ter, 38 Kan. 578; Louisville Police ute authority to construct and manage Com'rs v. Louisville, 3 Bush (Ky.), the water-works of a city was held to 597; Lexington v. Thompson, 113 be agents, and not "officers," within Ky. 540; 68 S. W. Rep. 477; Diathe meaning of the constitutional pro- mond v. Cain, 21 La. An. 309; vision that the legislature "shall not Baltimore v. State, 15 Md. 306, 376; § 104 (61). Mode of Payment of Police Officers. In the absence of special constitutional restriction it is competent likewise Commonwealth v. Plaisted, 148 Mass. 375; People v. Mahaney, 13 Mich. 481, 492; People v. Hurlbut, 24 Mich. 44, 81, 82; Moreland v. Millen, 126 Mich. 381; Attorney-General v. Bolger, 128 Mich. 355; State v. St. Louis County Court, 34 Mo. 546; State v. Mason, 153 Mo. 23; State v. Stobie, 194 Mo. 14; Redell v. Moores, 63 Neb. 219; State v. Broatch, 68 Neb. 687; State v. Nolan, 71 Neb. 136; Gooch v. Exeter, 70 N. H. 413; State v. Covington, 29 Ohio St. 102; State v. Baughman, 38 Ohio St. 455; Newport v. Horton, 22 R. I. 196, 201; Horton v. Newport, 27 R. I. 283; 61 Atl. Rep. 759; Ex parte Tracey (Tex. Crim. App.), 93 S. W. Rep. 538; Burch v. Hardwicke, 30 Gratt. (Va.) 24. There is nothing in the maxim that "taxation and representation go together" that can preclude the legislature from establishing in a city a metropolitan police board, with power to estimate the expenses of the police, and compelling the city authorities to raise by taxation the amount so estimated. Every city is represented in the State legislature; and it is for that body to determine how much power shall be conferred by the municipal charters which it grants. People v. Mahaney, 13 Mich. 481, 500; Gooch v. Exeter, 70 N. H. 413, 416. But in Michigan, the legislature cannot authorize a board of police appointed by the governor for a city, whose members must be residents of the city, to exercise police powers in townships outside the city. Metropolitan Police v. Board of Auditors of Wayne Co., 68 Mich. 576. In Speed v. Crawford, 3 Met. (Ky.) 207, a statute directed the governor to appoint the police board of a city. The court held that as the members of the board were required to reside in the city, to be qualified voters of the city, and to keep their offices therein, and as their powers and duties related to matters exclusively local, being confined to subjects pertaining to the "police department" of the city, they were officers of the city, who must be elected under the provision of the Constitution that officers for cities shall be elected for such terms and in such manner as may be prescribed by law. But in Police Com'rs v. Louisville, 3 Bush (Ky.), 597, it was held that an act providing for the organization of a police force for the city of Lamsville and county of Jefferson did not violate this provision, although the police commissioners were elected by the city and county and not by the city alone. The cases concur in holding that police officers are, in fact, State officers and not municipal, although a particular city or town be taxed to pay them. See the authorities cited above; also Chicago v. Wright, 69 Ill. 318, 326; State v. Leovy, 21 La. An. 538; Cobb v. City of Portland, 55 Me. 381; Kelley v. Cook, 21 R. I. 29; Allor v. Wayne, 43 Mich. 76; Robertson v. Baxter, 57 Mich. 127, 131; post, § 390; Cooley, Taxation (3d ed.), chap. xxi. p. 1296. In New York, decisions are to be found which treat police commissioners and police officers as officers of the city, and not of the State. These decisions, however, are founded upon the terms of an express constitutional provision, which declares that all city officers whose election or appointment is not provided for shall be elected by the electors of such cities or some division thereof, or appointed by such authorities thereof as the legislature shall designate. "All other officers whose offices may hereafter be created by law shall be elected by the people or appointed as the legislature may direct." This provision refers to offices instituted and existing under the actual laws of the State at the time the constitutional provision was adopted. Consequently, where there was, anterior to the adoption of the Constitution, a chief or executive officer of the police and a police force in a city, these officials were public, and they were, moreover, city officers within the meaning of the Constitution; and if, therefore, they are appointed for the territorial limits of a city they must be elected by the electors of the city, or appointed by such authorities thereof as the legislature may designate. People v. Draper, 15 N. Y. 532, 542. In this case, however, it was held that the legislature might, without violating this constitutional provision, create a police district consisting of territory other than the limits of a city, e. g., a number of counties, and authorize the governor to appoint commissioners of police for such police district. See also People to the legislature of a State to enact that the county shall pay a portion of the expenses of a police force in a city situated wholly within, and forming part of, the county. Police officers really execute public or State, as distinguished from corporate, duties. It may even direct a county to appropriate part of its revenue already collected in this way, since such legislation is not unconstitutional, as being retrospective in its operation, or as taking away vested rights, or impairing the obligation of contracts, or violating the principles of taxation. As moneys acquired by taxation are not strictly the private property of the county, such legislation is not the application of private property to public use without compensation, since the police board, by virtue of the act creating it, was an agency of the State government and performed public duties.' Such is the legislative power over v. Shepard, 36 N. Y. 285. But the district must be created in good faith. If it is created with the obvious intent of evading the constitutional provision, and merely includes some trivial fragments of territory outside the city limits, the statute creating the district and authorizing the appointment of commissioners is unconstitutional. People v. Albertson, 55 N. Y. 50. See also Rathbone v. Wirth, 150 N. Y. 459; People v. Coler, 173 N. Y. 103, 114. It is to be remarked of all these cases that they depend upon the express terms of the constitutional provision and the manner in which it has been applied by the courts, and not upon the question whether police officers perform some portion of the functions and duties of the State rather than of the municipality. ment for a city is an interest of the city alone, and hence the latter is an exercise of a corporate power. State v. St. Louis County Court (mandamus), 34 Mo. 546; contra, Nashville v. Towns, 5 Sneed (Tenn.), 186. The view of the Supreme Court of Missouri is undoubtedly the correct one. Approved in St. Louis v. Shields, 52 Mo. 351; People v. Morris, 13 Wend. 325; Sangamon Co. v. Springfield, 63 Ill. 66; Weymouth, &c. Fire Dist. v. County Com'rs, 108 Mass. 142; Stilz v. Indianapolis, 55 Ind. 515. The maintenance of a police force may be committed to the corporate authorities of a municipality, and if there are no special constitutional restrictions on the power of the legislature, it may authorize the assessment of a tax upon the keepers of saloons and restaurants in the municipality for the purpose of maintaining such police force therein, to be levied and collected as other taxes. Durach's Appeal, 62 Pa. St. 491; post, §§ 1369, 1372; Chicago & A. R. Co. v. Adler, 56 Ill. 344. School districts being public corporations, under legislative control, a law providing that school debts may be paid in bills of the State bank of the State is valid as against the objection that the legislature had no power to direct that anything except gold and silver should be received in payment of debts. Bush v. Shipman, 5 Îll. 190. In State v. Downs, 60 Kan. 788, where the question under consideration was whether an act providing for the control and management of fire and police departments in certain cities was an act "conferring corporate powers" within the meaning of the provision of the Kansas Constitution prohibiting special laws conferring corporate powers, it is said that general political and governmental powers in the execution of the public policies of the State, and not in execution of the special and internal affairs of a prescribed locality, may be administered through quasi political agencies, whilst matters A municipal corporation may constiaffecting the internal affairs of the local- tutionally be exempted from prospective ity can only be administered through liability for non-feasance of its officers agencies corporate in character; that or liability for torts. Gray v. Brookeducation is an interest of the whole lyn, 10 Abb. Pr. R. N. s. 186; post, State, whilst a police and fire depart- chapter on Civil Actions and Liabilities. counties and their property paid for by taxation that the General Assembly may constitutionally enact a law to take railroad stock from the county after it has been subscribed and paid for out of funds raised by taxation, and transfer it to those from whom the money was collected, and, in the event they do not apply for it, to vest it in townships for school purposes.1 $ 105 (62). Legislative Power over Revenues. The legitimate authority of the legislature over municipal corporations extends to making provisions concerning their funds and revenues,' and the authority is not abridged because the purpose to which the revenue is to be appropriated is specified in the charter; and the ground of the doctrine is that such corporations have no vested rights in powers conferred upon them for civil, political, or administrative purposes. Thus, the legislature may repeal the power it had given to cities to grant licenses for the sale of intoxicating liquors, although the money to be derived from the sale of such licenses was directed to be appropriated to the support of paupers within the city. Such an authority, it was remarked, "gives the city no more a vested right to issue licenses, because the legislature specified the objects to which the money should be applied, than if it had been put into the general fund of the city." + 1 Lucas v. Tippecanoe Co., 44 Ind. 524; Downey, Worden, and Osborn, JJ., concurring, Buskirk and Pettit, JJ., dissenting. The opinions are elaborate, and refer to the leading authorities on the subject. The dissenting judges consider Spaulding v. Andover, 54 N. H. 38, then recently decided by the Supreme Court of New Hampshire, as strongly sustaining their views. In Board of Com'rs of Tippecanoe County v. Lucas, Treasurer, 93 U. S. 108, the Supreme Court of the United States was of the opinion that as counties were mere agencies of government whose powers may be changed at pleasure, revenues raised by taxation, although levied for specific public purposes, are so far subject to the legislature that it may direct them to be applied to other uses of the municipality; and, therefore, that it was competent for the legislature to direct restitution to the taxpayer of property exacted from him by taxation in whatever form the property may have been changed, so long as it remained in the possession of the municipality. 2 Ante, §§ 96, 103, 104, and notes. Gutzweller v. People, 14 Ill. 142; ante, § 92, note. Gutzweller v. People, 14 Ill. 142, per Caton, J. See also Richland Co. v. Lawrence Co., 12 Ill. 1; adhered to, Sangamon Co. v. Springfield, 63 Ill. 71; Spaulding v. Andover (full discussion by Foster, J.), 54 N. H. 38; Home Ins. Co. v. Augusta City Council, 93 U. S. 116; People v. San Luis Obispe County, 50 Cal. 561; People v. Power, 25 Ill. 187; Richmond v. Richmond, &c. Railroad Co., 21 Gratt. (Va.) 604, holding that the State may exempt property from municipal taxation. By the charter of a municipal corporation there was granted to it sole power to grant licenses to sell spirituous liquors within its limits, and to appropriate the money arising thereform to city purposes. Subsequently the legislature passed an act directing the money thus raised to be paid by the corporation to an academy located within the town. municipal corporation refused to pay over to the academy an amount received for licenses after the passage of the last-named act, and the academy brought an action to recover it. The The § 106 (63). Legislative Power over Municipal Charters. Legislative acts respecting the political and governmental powers of municipal corporations not being in the nature of contracts, the provisions thereof may be changed at pleasure where the constitutional rights of creditors and others are not invaded.' By act of the legislature the separate city of Lafayette was added to and incorporated with the city of New Orleans, with a provision that the added district, which was less in debt than the city of New Orleans, should be charged only with its own debts; and by a subsequent act of the legislature it was provided that taxes should be equal and uniform throughout the entire limits of the city; the effect of which was to increase the amount of taxes to be raised within that portion of the corporation which was formerly the city of Lafayette. A bill was filed by residents and property owners of the annexed district to enjoin the collection of the excess of taxes beyond the amount fixed by the act incorporating the annexed district into the "old city," claiming that the act was a contract, and the levy of taxes under the latter act, so far as regards debts due antecedently to the annexation, violated the vested rights of the inhabitants of the annexed district. The Supreme Court, on the ground that public corporations are wholly under the control of the legislature, which has the power to provide in what manner taxes shall be levied for their support, and canoe Board, &c., 44 Ind. 524); Indianapolis v. Indianapolis Home, &c., 50 Ind. 215. court held the subsequent act to be Ib. 328; Youngs v. Hall, 9 Nev. 212; unconstitutional, and that the town People v. Ingersoll, 58 N. Y. 1; People was not liable. The court were of v. Fields, 58 N. Y. 491; Home Ins. Co, opinion, that, by its charter, the town v. City Council, 93 U. S. 116; ante. had a vested right in the profits arising $96, note; Indianapolis v. Indianapolis from licenses. It admitted that the Home, &c., 50 Ind. 213, 215. The Inlegislature might altogether take away dianapolis Home for Friendless Women from the town the power to grant is so far a public corporation or institulicenses; but if it allowed the power to tion, that an appropriation by the legisremain, it denied the right of the legis- lature of fines, collected for the violation lature "to make a different disposition of certain city ordinances, to its supof the funds arising from such licenses port, is not the appropriation of money from that contained in the charter, to a private purpose (Lucas v. Tippeunless with the consent of the corporation." Trustees of Aberdeen Academy v. Aberdeen, 21 Miss. 645. See also Aberdeen v. Saunderson, 16 Miss. 663. The doctrine that the town corporation had a vested right in profits arising from licenses cannot, we think, be sustained, and is not in harmony with the decisions elsewhere. Indianapolis v. Indianapolis Home, &c., 50 Ind. 215. City, county, and township funds are under legislative control. Pike County v. State, 11 Ill. 202; Richland County v. Lawrence County, 12 Ill. 1; Dennis v. Maynard, 15 Ill. 477; Love v. Schenck, 12 Ired. Law, 304; Love v. Ramsour, Smith v. Inge, 80 Ala. 283; Johnson v. San Diego, 109 Cal. 468, quoting text. For rights of creditors of municipal corporations, see post, § 112, chaps. ix., x., and xx. As to constitutional rights of creditors, mortgagees, contractors with, and shareholders of private corporations, as against the legislative power of the State, see opinion of Ruger, C. J., in People v. O'Brien, 111 N. Y. 1, known as the Broadway Surface Rail. way Case, infra, § 112. |