how their debts shall be paid on their dissolution, held the act authorizing increased taxation to be valid, and dismissed the bill.1 So where, after a contract for paving streets had been made, but before it was fully executed, certain wards were added to the city (in which wards, however, no part of the paving was ever done), and no provision as to the debts of the corporation was made in the act of annexation, it was held that the legislature might afterwards constitutionally enact, as against the contractor, that the people within the wards thus added should not be taxed to pay any part of the debt of the city contracted prior to the passage of the act by which they were brought within the limits of the corporation. And the same principle was asserted by the Supreme Court of the United States, which held to be valid a legislative act by which the city of Carrollton was annexed to New Orleans, with a provision that the latter city should succeed to all the rights and property, and assume and pay all of the debts of the former.3 2 § 107 (64). Private Trusts. The power of the legislature to alter and abolish municipal corporations, to erect new corporations in the place of the old, to add to the old, or to carve out of the old a new corporation, or the power to divide and dispose of the property held by such corporations for municipal purposes, is not defeated or affected by the circumstance that the corporation is, by its charter, Layton v. New Orleans, 12 La. An. of the park was carved out of the 515. See also Girard v. Philadelphia, corporate limits of Flatbush. Miller, 7 Wall. 1; People v. Hill, 7 Cal. 97; J., after stating that had an original post, chap. x.; State v. Flanders, 24 assessment for benefits been made it La. An. 57; United States v. Mem- might be said to be an assessment for phis, 97 U. S. 284, 300; Vance v. public use, and enforceable as such, Little Rock, 30 Ark. 435, 439; Haw- says: "But such is not this case. kins v. Jonesboro, 63 Ga. 527; Sedg- There is no principle that I am aware wick Co. v. Bailey, 13 Kan. 631; San of which sanctions the doctrine that it Francisco v. Canavan, 42 Cal. 541. A is within the taxing power of the legstatute extinguishing one corporation islature to compel one town, city, or and throwing its obligations on another locality to contribute to the payment of raises an implied promise on the part of the debts of another. The government the successor to pay the same. Little has no such authority, and this case is v. Union Township Committee, 40 entirely without a precedent. If such N. J. L. 397; post, §§ 336, 357-360. assessments were authorized, they might 2 United States v. Memphis, 97 U. S. not be limited to adjoining towns, cities, 284, 300. Further, as to effect of dis- or villages, but applied to those located solution and of change of boundaries, at great distances from each other. see post, § 112, chaps. ix. and x. In Such legislation would be unjust, misTown of Flatbush, În re, 60 N. Y. 398, chievous, and oppressive, and cannot the Court of Appeals expressed the be tolerated." opinion that it was beyond the competency of the legislature to assess lands in the town of Flatbush to pay debts previously incurred by the adjoining city of Brooklyn under prior acts for a park, although the portion 3 New Orleans v. Clark, 95 U. S. 644, 654. Such legislation is not within the prohibition of the State Constitution against the passage of retroactive laws. Ib. made the trustee of a charity, or of other private rights and interests. Where the legal existence of the municipal trustee is destroyed by legislative act, the court of chancery will assume the execution of the trust, and, if necessary, will appoint new trustees to take charge of the property and carry into effect the trust.1 The su § 108 (65). Legislative Power not wholly Unlimited. premacy of the legislative authority over municipal corporations is not, however, in all respects, unlimited; but the limitations must be sought either in the national or State Constitution; and except as there found, in terms or by fair implication, they do not exist. In England it is settled that the Crown has no power, without the consent of those to be affected thereby, to alter or abolish municipal charters, or to impose new ones on the corporation. But Parliament may create new corporations, or abolish or alter charters, or impose new ones, at its will, and without the consent of the inhabitants. And so may the State legislatures in this country, if there be no constitutional restriction upon the power." § 109 (66). Public and Private or Proprietary Rights distinguished. -It assists to an understanding of the extent of legislative power over municipal corporations proper (incorporated towns and cities) to observe that these, as ordinarily constituted, possess according to the adjudications a double character: the one governmental, legislative, or public; the other, in a sense, proprietary or private. The distinction between these, though sometimes, indeed very often, difficult to trace, is highly important, and is frequently referred to, particularly in the cases relating to the property and to the implied or common-law liability of municipal corporations for the negligence 1 Girard v. Philadelphia, 7 Wall. 1; Russell, 9 Mo. 503, 504; ante, § 92. Meriwether v. Garrett, 102 U. S. 472, It is justly observed that "most, if 528; Philadelphia v. Fox, 64 Pa. St. not all, of the leading cases in the books, 169; infra, §§ 122, 131, Montpelier v. involving the question of the inviolaEast Montpelier (division of town, and bility of municipal charters, in the contest as to trust property held for the English courts, arose between the prebenefit of the inhabitants of the original rogative of the crown and the corporatownship), 29 Vt. 12; same controversy tion. The right or power of parliament at law, 27 Vt. 704. See infra, § 131, in England, or of the legislature here, and chapters on Corporate Property would present (and was decided to and Remedies against Illegal Corporate present) quite a different question. Acts, post. Text approved. Luehrman Per Nelson, J., in People v. Morris, v. Tax. Dist., 2 Lea (Tenn.), 425; Ellerman v. McMains, 30 La. An. 190; infra, § 111; Cincinnati v. Cameron, 33 Ohio St. 336. 2 St. Louis v. Allen (extension of city limits), 13 Mo. 400; St. Louis v. 13 Wend. 325, 334; Philadelphia v. Field, 58 Pa. St. 320; Hudson County v. Seymour, 35 N. J. L. 47; People v. Bennett, 29 Mich. 451; Austin v. Coggeshall, 12 R. I. 329, citing and approving text. of their servants, agents, or officers in the execution of corporate duties and powers. On this distinction, indeed, rests the doctrine of such implied liability.' In its governmental or public character, the corporation is made, by the State, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the State rather than for itself. In this respect it is assimilated, in its nature and functions, to a county corporation, which, as we have seen, is purely part of the governmental machinery of the sovereignty which creates it. Over all its civil, political, or governmental powers, the authority of the legislature is, in the nature of things, supreme and without limitation, unless the limitation is found in the Constitution of the particular State. But in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the State at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual; and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded quo ad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it or the rights represented by it, is omnipotent.2 advantage, as a corporation, although inuring of course, ultimately to the benefit of the public." Per Gray, J., in Oliver v. Worcester, 102 Mass. 489, 499; s. P. Detroit v. Corey, 9 Mich. 165, 184; Hill v. Boston, 122 Mass. 344, 359. In the one case no private action lies unless it be expressly given; in the other there is an implied or commonlaw liability for the negligence of their officers in the discharge of such duties. In further illustration of this dual character, the reader is referred to the cases cited in the next note. See reference to this section of the text in Spaulding v. Andover, 54 N. H. 38, 54; and in Meriwether v. Garrett, 102 Ú. S. 472, 528; post, §§ 119–122, and chap. xxxii., and cases. 1 Ante, §§ 34, 37, 40; post, chapter character, in the management of propon Actions and Liabilities. Distinc- erty and rights voluntarily held by tion between public or governmental them for their own immediate profit or and private or corporate functions recognized and discussed: Birmingham v. Birmingham Water Works Co., 139 Ala. 531; Veraguth v. Denver, 19 Colo. App. 473; Hourigan v. Norwich, 77 Conn. 358; Aschoff v. Evansville, 34 Ind. App. 25; Hamlin v. Biddeford, 95 Me. 308, 314; Miller v. Minneapolis, 75 Minn. 131; Ulrich v. St. Louis, 112 Mo. 136, 138, 148; Ely v. St. Louis, 181 Mo. 723; Bullmaster v. St. Joseph, 70 Mo. App. 60, 67; Springfield Fire, &c. Ins. Co. v. Keeseville, 148 N. Y. 46; Eddy v. Ellicotville, 35 N. Y. App. Div. 256, 258; Williams v. Port Chester, 97 N. Y. App. Div. 84, 93; Cleveland v. Clement Bros. Const. Co., 67 Ohio St. 197; Levy v. Salt Lake City, 3 Utah, 63; Mendel v. Wheeling, 28 W. Va. 233. "The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity, in the discharge of duties imposed on them by the legislature for the public benefit, and for acts done in what may be called their private 2 West Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175; Ib. 185; Bailey v. Mayor, &c. of New York, 3 Hill, 531; People v. Fields, 58 N. Y. 491; People v. Ingersoll, 58 N. Y. 1; Maxmillian v. Mayor, &c. of New York, 62 N. Y. 160; People v. Briggs, 50 N. Y. 553, 560; This division of the pow § 110 (67). Grounds of Distinction. ers of a municipal corporation into two classes, one public and the other private, has been before alluded to, and is well established, but the private character thus ascribed to such powers it is difficult exactly to define. It is easy to understand that if, under the exercise of lawful powers by the authority of the legislature, property has been acquired by a municipality, such property may not be subject to legislative appropriation to uses distinctly foreign to the interests of the municipality; but in what sense are powers conferred and to be exercised for the good of all the people of the place private ? Wherein do such powers, in their origin or nature, differ from those admitted to be public? Are not all powers conferred upon municipalities, whether many or few, given, and given only, for their better regulation and government, and to promote their welfare as parts of the Commonwealth? The small municipality, with few and simple powers, is no more completely under the supreme dominion of the legislature than the more populous one, requiring for its proper government organs and powers peculiar to itself. Are the latter, therefore, private? If so, it must be in a qualified and peculiar sense.1 Springfield Fire Ins. Co. v. Keeseville, 148 N. Y. 46; Nichol v. Nashville, 9 Humph. 252; Small v. Danville, 51 Me. 359; Jones v. New Haven, 34 Conn. 1; Western College v. Cleveland, 12 Ohio St. 375; Howe v. New Orleans, 12 La. An. 481; Martin v. Brooklyn, 1 Hill (N. Y.), 545; Buttrick v. Lowell, 1 Allen, 172; Oliver v. Worcester, 102 Mass. 489; Touchard v. Touchard, 5 Cal. 306; Gas Co. v. San Francisco, 9 Cal. 453; Commissioners v. Duckett, 20 Md. 449, 468; Weet v. Brockport, 16 N. Y. 161, note; Louisville v. University of Louisville, 15 B. Mon. (Ky.) 642; Louisville v. Commonwealth, 1 Duvall (Ky.), 295; Weightman v. Washington, 1 Black (U. S.), 39; Reading v. Commonwealth, 11 Pa. St. 196; Richmond v. Long's Admr., 17 Gratt. (Va.) 375; De Voss v. Richmond, 18 Gratt. (Va.) 338; New Orleans, &c. R. R. Co. v. New Orleans, 26 La. An. 478; s. c. Ib. 517; Askew v. Hale Co., 54 Ala. 639; Detroit v. Corey, 9 Mich. 165, 184; People v. Hurlbut, 24 Mich. 44, opinion of Cooley, J.; People v. Detroit, 28 Mich. 228; In re Malone's Estate, 21 S. C. 435. As to what are municipal duties, and what falls within the scope of municipal powers, see United States r. Baltimore & Ohio Railroad Co., 17 Wall. (U. S.) 322, 332; post, §§ 1398 et seq.; Niles Water Works v. Niles, 59 Contracts in favor of the creditor are protected by the national Constitution; but as against a State, the difficulty is to find a logical and sound basis on which to rest private rights in favor of a municipality, if, under the Constitution of the particular State, it is within the power of the State which breathed into it the breath of life utterly to extinguish its existence at pleasure. The distinction originated with the courts, to promote justice, and has been most frequently applied to escape technical difficulties in order to hold such corporations liable to private actions. The distinction, however, is generally recognized, and it may be invoked as the basis of property rights in favor of the municipality which are not wholly withdrawn from the protection that our Constitutions extend to property. This distinction, however, whatever may be its rationale, is firmly established within the limits shown by the adjudged cases. It is at the bottom, as we think, judicial legislation imperceptibly evolved in the process of adjudication, but its necessity in order to promote justice, and its salutary operation as applied by the conservatism and intelligence of the courts, have fully justified its wisdom. It is the law of the land. It is, § 111 (68). Power of Legislature over Public Property. perhaps, at present, impossible to define with precision what limitations exist upon the power of the legislature over municipal corporations, as ordinarily constituted. It is practicable only to refer to the leading cases upon the subject, and attempt to extract the principles upon which they rest. 1 Section approved in State v. Smith, ernments, and maintains that, as re44 Ohio St. 348. On this subject the spects the State, all their powers and opinion of Chief Justice Denio, in Dar- functions are public. He affirms that lington v. New York, 31 N. Y. 164, the legislature may compel a municipal may be read with profit. The Chief corporation to submit to arbitration Justice there asserts the unlimited claims as to which private corporations power of the legislature over municipal and natural persons would be entitled corporations and their property. He by the Constitution to a trial by jury. maintains that such corporations are The opposite view is nowhere more altogether public, and all their rights ably presented than by Campbell, C. J., and powers public in their nature, and in People v. Hurlbut, 24 Mich. 44; that their property, though held for and by Cooley, J., in People v. Detroit, income or sale, and unconnected with 28 Mich. 228; Gray v. Brooklyn, 10 any use for the purposes of the municipal government, is under the control of the legislature, and not within the provisions of the Constitution protecting private property. He denies the correctness of the distinction taken in Bailey v. Mayor, &c. of New York, 3 Hill, 531, and other cases, between the public and private functions of city gov Abb. Pr. Rep. N. s. 186; post, chap. xxxii. See, as to jury, Dunsmore's Appeal, 52 Pa. St. 374. Consult on this subject Plimpton v. Somerset, 33 Vt. 283. See also chapters on Municipal Courts, Property, and Ordinances, post. 2 See ante, § 4; post, §§ 111 and note, 112, 113, as to the grounds of the distinction. |