§ 120 (73). Same Subject. The judgment of this able court in the Detroit Park Case, as well as the argument of the eminent judge in the opinion by which it is supported, is, under the facts, as applied to a strictly local park, in the author's judgment not only sound, but it is in accordance with the weight of judicial expression on the subject.' There are difficulties attending the assertion of unlimited legislative power over municipalities, and difficulties, also, in assigning limits to that power. The legislative power of the State ought to be at all times comprehensive enough and penetrating enough to enforce all duties and to redress all evils. Abuses will inevitably arise which nothing but legislative surgery can remedy. It seems to be right and just that the citizens of Detroit should not be compelled without their consent to incur a large debt for a local park, which af er all is a matter of luxury and ornament rather than a prime necessity. But change the instance. Suppose the city should refuse to provide a system of sewers or drainage, whereby the health of its people was injuriously affected: may it say that this does not concern the people of the State outside the city, that it is peculiarly a local matter, and therefore is beyond the power of the State to compel the city to make such a provision, and to raise the necessary taxes or make the necessary assessments to that end? On the whole, the question whether a city may be compelled to create a debt or liability against its will must be answered, we think, with reference not only to the constitutional provisions of the State, but to the nature of the purposes for which the debt or liability is to be incurred. § 121 (74). Power to compel Municipality to perform General Public Duty. Thus, if there is no special limitation in the Constitution, and the debt or liability is one to be incurred in the discharge of a public or State duty, which it is proper for the legislature to impose upon the municipality, it can constitute no objection to the validity of the act that the debt or liability is to be created without its consent. Accordingly, in the absence of constitutional restriction, it has been decided, and the decision is doubtless correct, its water supply, it should acquire the plant already in operation therein in the manner provided by the act. It was held, largely upon the authority of People v. Common Council of Detroit, 28 Mich. 228, that this act was in effect a law compelling the municipality to acquire specific property for strictly municipal purposes, and that it was beyond the power of the legislature to enact. The court also considered it as violating the provision of the Montana Constitution which prohibits the General Assembly from levying taxes for municipal purposes. But quære as to the soundness of the decision in this case. 1 See supra, § 111 and note; § 112 and notes. that it is competent for the legislature to direct a municipal corporation to build a bridge over a navigable watercourse within its limits, or the State may appoint agents of its own to build it, and empower them to create a loan to pay for the structure, payable by the corporation. Thus, also, since municipal corporations are instruments, Philadelphia v. Field, 58 Pa. St. Maine the following questions: First, 320, approving Thomas v. Leland, 24 assuming that the municipal indebtedWend. (N. Y.) 65; Guilder v. Otsego, ness of the city of Portland is already 20 Minn. 74; Simon v. Northup, 27 in excess of five per cent of its total Oreg. 487; citing text, supra, § 92, note valuation, would a bill providing that and cases cited; United States v. Balti- the cost of removing the present bridge more & O. R. Co., 17 Wall. (U.S.) 322; and of replacing it with a new one not post, § 1398; Carter v. Bridge Proprie- exceeding the sum of $400,000 should tors, 104 Mass. 236. But the legisla- be met by the issue of bonds the mature would not, of course, possess such turity of which might be extended to extensive powers over a private corpo- any time not exceeding forty years, the ration. Erie v. Canal, 59 Pa. St. 174. payment of the bonds being imposed Public highways and bridges are matter upon the two cities in proportions to of general or State, rather than of mu- be determined later in the manner pronicipal concern. Cooley, Taxation (2d vided by the bill, the proportional part ed.), 682. A city street, however, while thereof to be assumed by the city of its character is chiefly public, has also Portland to "constitute a legal obligaa local and peculiar and quasi public tion of the city of Portland" and to be or corporate character; which is shown met by taxation upon the property and in chapters on Streets and Actions. In polls within the city, be in violation of Prince v. Crocker, 166 Mass. 347, citing art. xx. of the amendments to the the text, it was held that as to roads, State Constitution, to the effect that bridges, and sewers, the legislature may "no city or town shall hereafter create prescribe what shall be done, and re- any debt or liability which singly or in quire cities and towns to bear the ex- the aggregate with previous debts or pense to such an extent and in such liabilities shall exceed five per cent of proportions as it may determine. In the last regular valuation of the said Bulkeley v. Williams, 68 Conn. 131, it city or town," with certain excepwas held that the legislature may re- tions which are not applicable to the quire a town to contribute a portion question; and, second, would the bill be of the cost of maintaining a road or in violation of any of the provisions of bridge which specially benefits the town, the State Constitution? A majority of although the road or bridge be wholly the justices decided that it was within outside of its territorial limits. This the power of the legislature under such case was affirmed under the name of circumstances to maintain the bridge Williams v. Eggleston, 170 U.S. 304, and itself, or through any agency that it it was held that an act apportioning saw fit to adopt; that it might estabbetween the State and five municipal lish a commission, and direct that corporations, in proportions determined commission to proceed forthwith to by the statute, the cost of condemnation of the franchise and property of a company which had constructed and was maintaining a toll bridge across the Connecticut at Hartford, and the proceedings had under that and subsequent legislation, did not violate any provision of the Federal Constitution. The cities of Portland and South Portland, having neglected to perform the duty of maintaining a bridge, part of the public highway, between these two cities so as to comply with the Federal and State regulations and laws, the house of representatives submitted to the justices of the Supreme Court of remove the present structure and to replace it with a new one; that it might impose the burden upon the cities, in such proportions as might be fixed by the legislature, or afterwards determined by appraisers appointed for that purpose, of assuming and paying the cost of the work contemplated by the bill. But they were of opinion that the legislature could not authorize the city to increase its indebtedness beyond the constitutional limit, neither could it compel a city to incur indebtedness beyond the prescribed limit, even for the purpose of meeting the cost of a public improve of government, created for political purposes, and subject to legislative control, and since it is one of the ordinary duties of such corporations, under legislative authority, to make and keep in repair the streets and highways and bridges connected therewith, the Court of Appeals in Maryland sustained an act mandatory in its terms, which not only empowered but required the city of Baltimore in its corporate capacity to take charge of and maintain as a public highway a specified bridge within that city, and enforced the duty created by the act of mandamus. But the legislature cannot by an imperative 1 ment, the duty of making which was imposed by the legislature upon such city. In re Opinion of the Justices, 99 Me. 515. A statute authorizing county commissioners to construct a bridge across a river between a city and a town directed the appointment of commissioners to determine what cities and towns would be specially benefited by the bridge, and what proportion of the cost should be borne by such cities and towns. After the bridge was built and the report of the cost filed, commissioners were appointed, who made an award, upon which judgment was entered, determining that the city and town between which the bridge was built should pay to the county the whole cost of the bridge in certain proportions. A subsequent statute provided for the appointment of commissioners to determine and report the amount of special benefit which the city and town received from the bridge, and if they found that such special benefit did not equal the cost of the bridge, to determine that the county should reimburse the city and town the amount that each had paid in excess of the benefit received. It was held that this statute was constitutional. Agawam v. Hampden, 130 Mass. 528. The raising of money by taxation in towns or counties, in pursuance of a general law of the State for the purpose of building bridges in the public highways and for other purposes of a similar character in which the people of the State at large are directly interested, is not the levying of a tax for a strictly local corporate purpose within the provision of the Illinois Constitution, that the general assembly shall not impose taxes upon municipal corporations or property thereof for corporate purposes. Municipal authorities, in levying taxes for such purposes, are in a large sense mere agencies of the State in carrying into effect general laws which have been enacted for the common good. They are, in fact, when thus acting, but parts of the general machinery of the State and county government, and an act making it an absolute duty of counties to aid in the building of bridges by the town authorities by contributing onehalf of the expense of town bridges in certain circumstances, was held not to be a contravention of this provision of the Constitution. Will County v. People, 110 Ill. 511. 1 Pumphrey v. Baltimore, 47 Md. 145. A county being justly indebted under a contract for the erection of public buildings therein, the legislature may require it to issue its bonds to pay such indebtedness. Jefferson County v. People, 5 Neb. 136. The power of the legislature over municipal contracts and liabilities was very fully considered in People v. Batchellor, 53 N. Y. 128; and the conclusion was reached that while municipalities may be compelled by the legislature, without their consent, to construct and maintain improvements of a public character, and even enter into contracts for this purpose, they could not be compelled, without their consent or that of their taxable inhabitants, to become stockholders in a railway corporation; and therefore a mandatory statute requiring a municipal or public corporation to subscribe for stock in a railway corporation, and issue its bonds in payment therefor, without such consent, was unconstitutional. The opinion of Grover, J., contains a valuable review of many of the leading decisions upon the extent of legislative control over municipalities. And the case is distinguished from People v. Flagg, 46 N. Y. 401, where a mandatory act of the legislature, requiring the town of Yonkers, without its consent, to issue bonds to raise money to be expended in the construction of highways in the town, was held to be constitu statute compel a municipality, without its consent or that of its inhabitants, to create a debt to aid in the construction of a railway.1 § 122 (74 a). Compulsory Liability; City Hall Building in Philadelphia. If the legislature has unlimited power to determine for what purposes and in what amounts indebtedness chargeable upon a municipality and payable by its inhabitants may be created without their consent or that of their local authorities, it is a power of such a nature as to be certain to lead to abuse and oppression. This is strikingly illustrated by the experience of the city of Philadelphia, which it is profitable to record for instruction and warning. At an early day the Supreme Court of Pennsylvania, under the lead of Chief Justice Gibson, asserted, in a great variety of cases, a measure of legislative power almost as unlimited as that of Parliament. It came to be the accepted doctrine in that State, that municipalities held not only their existence, but all of their rights, at the absolute will of the legislature, which, if it chose, could govern the inhabitants of municipalities by its own appointees.2 Acting under this tional. The case of Batchellor was also distinguished, or attempted to be, from the decisions of the Supreme Court of the United States and of the State courts, to the effect that railway corporations are public, and erected for public purposes in such a sense as that the taxing power may be employed to aid in their construction, unless there is some special limitation in the Constitution of the particular State. The case of People v. Flagg, supra, was decided before the constitutional amendment of 1874, prohibiting local legislation on the subject of laying out and working highways, but permitting such power to be delegated to the local authorities by general laws. People v. Supervisors, 112 N. Y. 585, distinguishing People v. Flagg. See Town of Flatbush, In re, 60 N. Y. 398, cited, ante, § 106, note; Jensen v. Supervisors, 47 Wis. 298; post, $1487, note. In the Brooklyn and New York Bridge Case, the Court of Appeals has declared that the erection of a bridge to connect two cities may be a "city purpose," for which indebtedness may be incurred under the late constitutional amendment upon that subject. In deciding such a question the court said that great weight should be given to the determination of the legislature. A constitutional provision that no county, city, or town shall give money or loan its credit to any individual or corporation, or become the owner of corporate stock or bonds, is not in conflict with a statute authorizing two cities already owning stock in a company organized to build a bridge between such cities, to become the owners of the whole stock, by purchasing the stock of the private stockholders, or, in case of a failure to agree, by taking it by eminent domain. A statute authorizing the erection of a certain bridge provided that the trustees should call on the cities who were to pay for it for the funds necessary, "provided, however, that the whole amount to be paid by both cities shall not exceed eight million dollars." Held that this was not an absolute limit against a greater cost, but only a direction that no more should be called for without further legislative authority (Church, C. J., Folger and Miller, JJ., dissenting). People v. Kelly, 76 N. Y. 475. 128. People v. Batchellor, 53 N. Y. 2 Philadelphia v. Fox, 64 Pa. St. 160169, 180, 181, per Sharswood, J., who, giving the judgment of the court, says: "A municipal corporation is merely an agency of government fully subject to view, the legislature in 1870 passed an act "To provide for the erection of all public buildings required to accommodate the courts for all the municipal purposes within the city of Philadelphia." By this act the legislature decided that the city should have new public buildings. The act selected certain citizens by name, whom it appointed commissioners for the erection of the buildings. It made this body perpetual by authorizing it to fill vacancies. It was not chosen by the inhabitants or taxpayers, or removable by them, or accountable to them. It was authorized without the consent of the municipal authorities to make contracts to construct the buildings, which the act declared should be binding at law upon the city and the contractors. It was authorized prior to December 1 of each year to make requisitions on the common councils for the amount of money required for the succeeding year; and the act made it the duty of the common councils to levy a special tax sufficient to meet the requisition, and to do all such acts as the commission might from time to time require. This commission was imposed by the legislature upon the city, and given absolute control to create debts for the purpose named, and to require the levy of taxes for their payment. A scheme more repugnant to all notions of local self-government than that which was forced upon the city and committed to this legislative oligarchy cannot well be conceived. "They projected [according to a learned judge of that State] structures at the corner of Broad and Market streets upon a scale of magnificence better suited the control of the legislature, who may enlarge or diminish its territorial extent, or its functions, may change or modify its internal arrangement, or destroy its very existence, with the mere breath of arbitrary discretion. ... The sovereign may continue its [the city's] corporate existence, and yet assume or resume the appointments of all of its officers and agents into its own hands; for the power which can create and destroy can modify and change." It may, we think, be doubted whether, upon full and mature consideration, the Constitutions of the several American States do not contain express or implied limitations upon the autocratic power of the legislature, asserted in the paragraph quoted, which, however, is typical of many to be found in the judicial discussions on this subject. We are inclined to concur in the soundness of the observations, quoted below, of an eminent judge and jurist, who has given much attention to this subject. In the course of an interesting chapter Some "on local taxation under legislative |