with us in general in the strict and proper sense just mentioned; but sometimes it is used in a broader sense that includes also public or quasi corporations, the principal purpose of whose creation is as an instrumentality of the State, and not for the regulation of the local and special affairs of a compact community.' although the judgment below was re- intention appears; and under the versed. But in Cook v. Port of Port- legislation of that State, municipal land, 20 Oreg. 580, it was held that corporations, properly and strictly so a statute which created a separate called, do not include towns not chardistrict, with defined boundaries, em- tered, school districts, or other quasi bracing certain cities and the inhab- corporations. Eaton v. Manitowoc Co. itants thereof, a corporation by the (power to purchase and hold tax cername and style of "Port of Port- tificates), 44 Wis. 489; post, § 175, land" for the purpose of improving note. "The word 'municipal,' as origithe Willamette River, was a corpo- nally used in its strictness, applied to ration created for municipal purposes cities only. The word now has (in within the meaning of a constitutional the legislation of Iowa) a much more provision requiring all corporations 'except for municipal purposes" to be formed under general laws. The criterion by which the court reached its conclusions was (1) The powers, public, political, or governmental; (2) the membership, i. e., citizens, not stockholders, (3) its creation and existence independently of the acceptance by the members. In re Werner, 129 Cal. 567, 573; Public Instruction Com'rs v. Fell, 52 N. J. Eq. 689, 692; post, chaps. iii., v.; Heller v. Stremmel, 52 Mo. 309; State v. Leffingwell, 54 Mo. 458, 471. This last case discusses the meaning of the terms "municipal corporations" and "corporations for municipal purposes," as used in the Constitution of the State. Post, $192. "The definition of a municipal corporation," says the Supreme Court of Missouri, "would only include organized cities and towns and other like organizations with political and legislative powers for the local civil government and police regulation of the inhabitants of particular districts inIcluded in the boundaries of the corporation"; and it was accordingly held that an incorporated board of public schools was not a municipal corporation within the meaning of an act declaring that no person shall be eligible to a certain office who shall hold any office under a municipal corporation. Heller v. Stremmel, supra. În Wisconsin the term "municipal corporation," as used in the Constitution of the State, does not include towns (Norton v. Peck, 3 Wis. 714); and when used in statutes it is presumed to be used in the sense in which the term is used in the Constitution, unless a different legislative extended meaning, and when applied § 33 (21). Creation and Powers. Like other corporations, municipal corporations must with us be created by statute. They possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them or by other statutes applicable to them. Persons residing in or inhabiting a place to be incorporated, as well as the place itself, are — both the persons and the place - indispensable to the constitution of a municipal corporation.' Artificial succession also is of the essence of such a corporation. Municipal corporations are created and exist for the public advantage, and not for the benefit of their officers or of particular individuals or classes. The corporation is the artificial body created by the law, and not the officers, since these are, from the lowest up to the councilmen or mayor, the mere ministers of the corporation. Even the council, or other legislative or governing body, constitutes, as it has been well remarked, neither the corporation nor in themselves a corporation. It is quite impossible in any brief space to convey an adequate idea of the exact nature and properties of an American municipal corporation. There is nothing in the law more complex and abstruse. Although the inhabitants of a place be incorporated, they do not constitute the corporation; neither, as we have just observed, is it constituted by the governing body. Notwithstanding Mr. Kyd's criticism, the corporation is invisible, for, although we may see all the inhabitants or all the officers, we do not see the legal body - ideal personwhich makes the corporation, as we see an army; but this is a property common to all corporations. An additional complexity in municipal corporations arises out of the various and diverse powers nicipal affairs. Klauber v. Higgins, tution was adopted, and that the only 117 Cal. 451; Flinn v. State, 24 Ind. answer to the question is that what is 286; Odegaard v. Albert Lea, 33 Minn. a city depends entirely on what the 351; State v. Parsons, 40 N. J. L. 1; legislature has declared to be a city Com'rs of Public Charities v. McGurrin, by incorporating a community and call6 Daly (N. Y.), 349; Peck v. Weddell, ing it by that name. In Heard v. 17 Ohio St. 271; Road in Milton, 40 State, 113 Ga. 444, the court says that, Pa. St. 300; State v. Glennon, 3 R. I. from the standpoint of legislation in 276. In Wight & W. Co. v. Wolff, Georgia, the distinction of importance 112 Ga. 169, 170, it is said that the and population has ever been purely essential difference between a city and arbitrary, and the test of population a town consists in size and population has never been observed. which may demand for one a code of laws and municipal regulations not required by the other. In the same case 2 Reg. v. Paramore, 10 Ad. & El. it is said that the Constitution of 286; Reg. v. York, 2 Q. B. 850; Grant, Georgia does not define the term 357; Glover, 4; Harrison v. Williams, "city," and therefore, in ascertaining 3 Barn. & Cress. 162; Brown v. Gates, what was meant by the use of that word in the Constitution, it is necessary to determine what was the meaning of that term at the time the Consti 3 1 Galesburg v. Hawkinson, 75 Ill. 152; post, § 353. 15 W. Va. 131, citing text; Huron usually conferred, giving them, as they exist among us, an extremely composite character.' The primary and fundamental idea of a municipal corporation is an institution to regulate and administer the internal concerns of the inhabitants of a defined locality in matters peculiar to the place incorporated, or at all events not common to the State or people at large; but it is the constant practice of the States in this country to make use of the incorporated instrumentality, or of its officers, to exercise powers, perform duties, and execute functions that are not strictly or properly local or municipal in their nature, but which are, in fact, State powers, exercised by local officers, within defined territorial limits; and it is important, as we shall hereafter see, to keep this distinction in mind. In theory, the two classes of powers are distinct; but the line which separates the one from the other is often difficult to trace. The point may be illustrated from the English law: If the king incorporate a town, its officers will have no implied power as conservators or justices of the peace, express words are necessary to confer this power; and when they act in the latter capacity, it is not because they are corporate officers, but because of powers expressly annexed to their corporate offices; and the two capacities remain distinct, although united in the same person. The subject itself will be elsewhere discussed. The name of the municipal corporation, its boundaries, its officers, its powers, its duties, and the like, are subjects regulated by legislative enactment, and will be hereafter noticed. $34 (22). Public and Municipal Corporations distinguished. Corporations intended to assist in the conduct of local civil government are sometimes styled political, sometimes public, sometimes civil, and sometimes municipal, and certain kinds of them with very restricted powers, quasi corporations, all these by way of distinction from private corporations. All corporations intended as agencies in the administration of civil government are public, as distinguished from private corporations. Thus an incorporated school district, or county, as well as city, is a public corporation; but the school district or county, properly speaking, is not, while the city is, a municipal corporation. All municipal corporations are public 3 1 Ante, §§ 21, 25, 26; Goodnow, Municipal Home Rule, chap. ii. p. 18. 21 Kyd, 327; People v. Hurlburt, 24 Mich. 44, per Campbell, C. J.; People v. Detroit, 28 Mich. 228 (post, §§ 119, 120), in which the nature of municipal corporations and the purposes of their creation are fully discussed by Cooley, J. The text quoted and the distinction approved, and made the basis of the decision, in Beach v. Leahy, 11 Kan. 23, 30. 3 Schultes v. Eberly, 85 Ala. 242; Dunn v. Court of County Revenues, 85 Ala. 144, 146; In re Werner, 129 Cal. 567; Memphis Trust Co. v. St. Francis §34 PUBLIC AND MUNICIPAL CORPORATIONS DISTINGUISHED 63 bodies, created for civil or political purposes; but all civil, political, or public corporations are not, in the proper use of language, municipal corporations. The phrase "municipal corporations," in the contemplation of this treatise, has reference to incorporated villages, towns, and cities, with power of local administration, as distinguished from other public corporations, such as counties and quasi corporations.1 Levee Dist., 69 Ark. 284; State v. Downs, 60 Kan. 788, 792; White v. Commissioners, 90 N. Car. 437. As to corporate character of school districts, see post, § 36. In Arkansas, an improvement district, organized within a city, to make improvements in certain streets is not a municipal corporation within a constitutional provision prohibiting the issue of interest-bearing obligations by any county, city, town, or municipality. Fitzgerald v. Walker, 55 Ark. 148, 156. An incorporated levee district created for the sole purpose of constructing and maintaining a levee is a public or quasi corporation, but is not a municipal corporation within a constitutional provision prohibiting any county, city, town, or municipality from issuing interest-bearing evidences of indebtedness. Memphis Trust Co. v. St. Francis Levee Dist., 69 Ark. 284. See also Carson v. St. Francis Levee Dist., 59 Ark. 513; Morrison v. Morey, 146 Mo. 543. People v. Nelson, 133 Ill. 565, 579. Drainage districts are public corporations, and may be vested with authority to remove bridges from public roads, when necessary for the construction of ditches, without payment to the county which constructed the bridge. Heffner v. Cass and Morgan Counties, 193 Ill. 439. See also Will County v. People, 110 Ill. 511; Elmore v. Drainage Com'rs, 135 Ill. 269. In Louisiana, the police juries of the several parishes are municipal corporations. Police Jury of Ouachita v. Monroe, 38 La. An. 630. "Municipal corporations" as used in the amendment to the Constitution of Minnesota relating to the assessment of property for local improvements, held to include counties. Dowlan v. County of Sibley, 36 Minn. 430; supra, § 32 and note. In Rhode Island, a fire district is a public or quasi corporation. Wood v. Quimby, 20 R. I. 482; Cole v. Fire Engine Co., 12 R. I. 202; Sherman v. Benford, 10 R. I. 559. A district formed by setting off and detaching for town purposes a part of a town is a public corporation. State v. Narragansett, 16 R. I. 424. In California, a swamp-land reclamation district is a public corporation for municipal purposes. Dean v. Davis, 51 Cal. 406, 410; People v. Reclamation Dist., 53 Cal. 346; People v. Williams, 56 Cal. 647; Hoke v. Perdue, 62 Cal. Tennessee: "We do not think there 545; People v. La Rue, 67 Cal. 526. is any force in the objection that the An irrigation district is also a public act in question [a city charter] gives corporation. Central Irrigation Dist. v. to the city [of Memphis] the power to De Lappe, 79 Cal. 351; In re Madera establish public schools within its Irrig. Dist., 92 Cal. 296; People v. borders. This is a matter that may be Selma Irrigation Dist., 98 Cal. 206; properly included within municipal Quint v. Hoffman, 103 Cal. 506. A powers. Ballentine v. Pulaski, 15 Lea, sanitary district is a public corporation, 633." Malone v. Williams, 118 Tenn. but not a municipal corporation in the 390. proper sense of the term, and under the Constitution of California, as construed by the courts, cannot exercise general local police powers, e. g., reguLate the sale of intoxicating liquors. In re Werner, 129 Cal. 567. In Illinois, it is held that a sanitary district is, ex vi termini, a municipal corporation organized to secure, preserve, and promote the public health. 1 Hamilton Co. v. Mighels, 7 Ohio St. 109; Finch v. Board, &c., 30 Ohio St. 37; Askew v. Hale, 54 Ala. 639, approving text; Greene County v. Eubanks, 80 Ala. 204; Dunn v. Court of County Revenues of Wilcox, 85 Ala. 144; Lawrence County v. Chatteroi R. R. Co., 81 Ky. 225; Wahoo v. Reeder, 27 Neb. 770, 773; Manuel v. Commissioners, 98 N. Car. 9; Cathcart $35 (23). Corporate Character of Counties. The distinction between municipal corporations proper, such as chartered towns and cities, or towns and cities voluntarily organized under general incorporating acts, such as exist in many of the States, and involuntary quasi corporations, such as counties, has been very clearly drawn by the Supreme Court of Ohio: "Municipal corporations proper are called into existence either at the direct solicitation or by the free consent of the persons composing them, for the promotion of their own local and private advantage and convenience." On the other hand, "Counties are at most but local organizations, which, for the purposes of civil administration, are invested with a few functions characteristic of a corporate existence. They are local subdivisions of the State, created by the sovereign power of the State, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The former [municipal] organization is asked for, or at least assented to, by the people it embraces; the latter organization [counties] is superimposed by a sovereign and paramount authority." 1 "A municipal corporation proper is created mainly for the interest, advantage, and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the State at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of v. Comstock, 56 Wis. 590. This distinction is approved in Pleasant Township v. Etna Life Ins. Co., 138 U. S. 67, where it was held that a decision of the State court (Walker v. Cincinnati, 21 Ohio St. 14) in favor of the constitutionality of a statute authorizing a city (Cincinnati) to issue bonds to raise means for the purpose of building a railway, was not such a judicial determination as would be binding in favor of holders of bonds issued by a township under an act almost identical with the one granting the power to the city. Hamilton Co. v. Mighels, 7 Ohio St. 109. A county is one of the public territorial divisions of a State, created and organized for public political purposes connected with the administration of the State government, and 1 specially charged with the superintendence and administration of the local affairs of the community; and, being in its nature and objects a municipal organization, the legislature may, unless restrained by the Constitution, or some one of those fundamental maxims of right and justice with respect to which all governments and society are supposed to be organized, exercise control over the county agencies, and require such public duties and functions to be performed by them as fall within the general scope and objects of the municipal organization. Talbot County v. Queen Anne's County, 50 Md. 245; Madden v. County of Lancaster, 27 U. S. App. 528; People v. Martin, 178 Ill. 611, 620. 2 Post, $353; ante, §§ 31-34. |