the State, and are, in fact, but a branch of the general administration of that policy."

1

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$ 36 (24). Corporate Character of School Districts. An incorporated city or town sometimes embraces by legislative provision two distinct corporations, as, for example, the municipal and the school corporation existing within the same territory. It is in such cases a distinct corporation for school purposes, and under the statute or

1 Hamilton Co. v. Mighels, 7 Ohio become an actual nuisance to persons St. 109. In this case, from which we residing near it. Text cited and aphave quoted, the learned judge, ad-proved; Pulaski County v. Reeve, 42 verting to the case in hand, in which Ark. 55; State v. Leffingwell, 54 Mo. it was sought to make the county 458; Askew v. Hale Co., 54 Ala. 639; liable in damages to one who suffered People v. Martin, 178 Ill. 611, 620; a personal injury from the neglect of Wetherell v. Devine, 116 Ill. 631, 642. the commissioners of the county in See also Soper v. Henry Co., 26 Iowa, the discharge of their official duties, 264; Treadwell v. Commissioners, 11 says: "But, it is said, the members Ohio St. 190; Angell & Ames, §§ 14, of the board of county commissioners 23, 24, 25; People v. Sours, 31 Colo. are chosen by the electors of the county, 369, quoting text; People v. Johnson, and hence the board is to be regarded 34 Colo. 143; Dunn v. Court of County as the agents of the county, for whose Revenues, 85 Ala. 144, 146; Scales v. torts in the performance of official Chattahoochee County, 41 Ga. 225; duties the county ought to be responsible. True, the people of the county elect the board of county commissioners; but they also elect the sheriff and treasurer of the county. Are the people of the county, therefore, responsible for the malfeasances in office of the sheriff or for the official defalcations of the county treasurer? This will not be pretended. . . . We cannot but think that county commissioners are not agents or representatives of the county in any such sense or manner as to render the people of the county justly answerable for their neglect even if the neglect be such as would create a civil liability against a natural person or a municipal or private corporation. It is," he adds, undoubtedly competent for the legislature to make the people of a county liable for the official delinquencies of the county commissioners; but this has not yet been done, and we think such liability cannot be derived from the relations of the parties, either on the principles or the precedents of the common law." Followed, Jacobs v. Hamilton Co., 4 Fisher, Pat. Cases, 81. Also cited and followed in Wehn v. Gage Co., 5 Neb. 494, where it was held that, in the absence of a statute creating the liability, the county was not liable to an action by reason of its jail being so erected and kept as to

post, §§ 96, 109; also chapter on Actions, §§ 1640, 1645. A distinction must be made between those towns or townships which are fully incorporated and those which are mere subdivisions of the county created for political and governmental purposes only. A town organized under the township organization laws of the State is a political or civil subdivision of a county. It is created as a subordinate agency to aid in the administration of general State and local government. The distinction between such a town or township and other chartered municipal corporations proper sometimes denominated towns, is that a chartered town or village is given corporate existence usually at the request or by the consent of the inhabitants thereof for the interest, advantage, or convenience of the locality and its people, and a town under township organization is created almost exclusively with a view to the policy of the State at large, for purposes of political organization and as an agency of the State and county, to aid in the civil administration of affairs pertaining to the general administration of the State and county government, and is imposed upon the territory included within it, without consulting the wishes of the inhabitants thereof. Per Boggs, J., in People v. Martin, 178 Ill. 611, 621.

charter may be bound as such for the contract price of materials furnished and labor performed by another in the erection of a school building for such corporation. More generally, however, school districts are organized under the general laws of the State, and fall within the class of corporations known as quasi corporations.2

§ 38 QUASI AND MUNICIPAL CORPORATIONS DISTINGUISHED

67

§ 37 (25). Distinction between Public and Quasi and Municipal Corporations. — Civil corporations are of different grades or classes, but in essence and nature they must all be regarded as public. The school district or the road district is usually invested by general enactments operating throughout the State with a corporate character, the better to perform within and for the locality its special function, which is indicated by its name. It is but an instrumentality of the State, and the State incorporates it that it may the more effectually discharge its appointed duty. So with counties. They are involuntary political or civil divisions of the State, created by general laws to aid in the administration of government. Their powers are not uniform in all the States, but these generally relate to the administration of justice, the support of the poor, the establishment and repair of highways, - all of which are matters of State, as distinguished from municipal concern. They are purely auxiliaries of the State; and to the general statutes of the State they owe their creation, and the statutes confer upon them all the powers they possess, prescribe all the duties they owe, and impose all liabilities to which they are subject. Considered with respect to the limited number of their corporate powers, the bodies above named rank low down in the scale or grade of corporate existence; and hence have been frequently termed quasi corporations. This designation distinguishes them on the one hand from private corporations aggregate, and on the other from municipal corporations proper, such as cities or towns acting under charters, or incorporating statutes, and which are invested with more powers and endowed with special functions relating to the particular or local interests of the municipality, and to this end are granted a larger measure of corporate life.3

2

§ 38 (26). Same Subject. It will appear hereafter that nearly all of the courts have drawn a marked line of distinction between municipal corporations and quasi corporations, in respect to their liability to persons injured by their neglect of duty; holding the former liable, without an express statute giving the action, in cases in which the latter are not considered liable unless made so by express legislative enactment. One reason given for the distinction is, that with respect to local or municipal powers proper (as distinguished from

Beaver, 94 Pa. 388; Erie School Dist. v. Fuess, 98 Pa. 600; Ford v. School District, 121 Pa. 543: Briegel v. Philadelphia, 135 Pa. 451.

Ante. §§ 11, 17, 18, 24; post, §§ 71, 1640-1645.

2 Hamilton County v. Garrett, 62 Tex. 602.

3 Text quoted with approval: Heller v. Stremmel, 52 Mo. 309; Schultes v. Eberly, 82 Ala. 242; Shipley v. Hach eney, 34 Oreg. 303.

those conferred upon the municipality as a mere agent of the State) the inhabitants are to be regarded as having been clothed with them at their request and for their peculiar and special advantage, and that as to such powers and the duties springing out of them, the corporation has a private character, and is liable, on the like principles and generally to the same extent, as a private corporation.1 This subject will be fully examined in its appropriate place, and is alluded to here only for the purpose of noting the distinction which has been made between municipal and public corporations. But that a municipal corporation is in any just view a private corporation, or possesses a double character, the one private and the other public, although often asserted, is only true in a modified sense. In their nature and purposes, municipal corporations, however numerous and complex their powers and functions, are essentially public.3

§ 39 (27). Private and Corporate Interests. - Concerning the distinction mentioned in the preceding section, the following views may, perhaps, on principle be considered as sound. As respects the usual and ordinary legislative and governmental powers conferred upon a municipality, the better to enable it to aid the State in properly governing that portion of its people residing within the municipality, such powers are in their very nature public, although embodied in a charter and not conferred by laws general in their nature and applicable to the entire State. But powers or franchises of an exceptional, or extraordinary or non-municipal nature may be, and sometimes are, conferred upon municipalities, such as are frequently conferred upon individuals or private corporations. Thus, for example, a city may be expressly authorized in its discretion to erect a public wharf Quoted with approval: Safety to prevent misconception he adds that Insulated Wire and Cable Co. v. Baltimore, 25 U. S. App. 166.

2 Post, §§ 1303, 1638. Text approved: Hannon v. St. Louis County, 62 Mo. 313, 316; Heller v. Stremmel, 52 Mo. 309; State v. Leffingwell, 54 Mo. 458, 471; Union Township v. Gibboney, 94 Pa. St. 534; Madden v. County of Lancaster, 27 U. S. App. 528; Shipley v. Hacheney, 34 Oreg. 303, 306.

The doctrine of the private character of municipal corporations, as respects their property rights, is argued with great force by Cooley, J., in People v. Detroit, 28 Mich. 228; s. c. 15 Am. Rep. 202. See post, chap. iv. §§ 97, 119, 120. In the Roman law, see ante, § 3. The author allows the last two sentences of the text, as they appeared in the third and fourth edition, to stand. But

while, in his judgment, a municipal corporation is essentially a public and not in any true sense a private corporation, still it does not follow that it may not have, under the Constitutions of the States, certain primordial and fundamental rights, which, although they are not beyond legislative regulation, are nevertheless beyond legislative destruction. See post, chap. iv.; Goodnow, Municipal Home Rule, pp. 102, 184 et seq., 222, 226.

See cases cited post, § 109, and for illustrations and application of the doctrine, post, §§ 96, 97, 1398; also chapter on Actions, §§ 1640-1645. See observations of Hunt, J., in Barnes v. District of Columbia, 91 U. S. 540; and of Gray, C. J., in Hill v. Boston, 122 Mass. 344, noted infra, § 1642.

and charge tolls for its use,1 or to supply its inhabitants with water or gas, charging them therefor and making a profit thereby. In one sense such powers are public in their nature, because conferred for the public advantage. In another sense they may be considered private, because they are such as may be, and often are, conferred upon individuals and private corporations, and result in a special advantage or benefit to the municipality as distinct from the public at large. In this limited sense, and as forming a basis for the implied civil liability for damages caused by the negligent execution of such powers, it may be said that a municipality has a private as well as a public character. And so, as hereafter shown, a municipality may have property rights which are so far private in their nature that they are not held at the pleasure of the legislature.3

§ 40 (28). The New England Town. In the New England States, public corporations have, in many respects, a peculiar character. In some instances, there are acts incorporating cities, giving them defined powers and providing a special mode of government; but even then the general laws in relation to towns, when not inconsistent with the provisions of the local act, ordinarily apply to the places specially incorporated. In the New England town proper, the citizens administer the general affairs in person, at the stated corporate or town meetings, and through officers elected by themselves. The towns are charged with the support of schools, the relief of the poor, the laying out and repair of highways, and are empowered to preserve peace and good order, maintain internal police, and direct and manage generally, in a manner not repugnant to the laws of the State, their prudential affairs; and for defraying

1 Pittsburg v. Grier, 22 Pa. St. 54. Post, § 274, note, and the chapter on Actions, §§ 1645, 1646, 1665.

2 Ib., post, chapter on Public Utilities and chapter on Actions. National Foundry and Pipe Works, Limited, v. Oconto Water Co., 52 Fed. Rep. 43, s. c. on appeal, Andrews v. National Foundry and Pipe Works, Limited, 18 U.S. App. 458; Corpus Christi v. Central Wharf & Warehouse, 8 Tex. Civ. App. 94, quoting text.

Chap. iv., post. Text quoted and approved, Huron Waterworks Co. v. Huron, 7 S. Dak. 9, 22.

In towns, according to the use of the word in the New England States and some of the others, the citizens administer the general affairs in person, in town meetings. In cities, this is

done by means of a mayor, aldermen, and council, to whom the citizens entrust most of the legislative and executive powers of the place. State ". Glennon, 3 R. I. 276, 278, per Staples, C. J. In New England, "town" is a generic term, and it will embrace cities, unless the contrary appears in other parts of the statute to have been the intent of the legislature. Ib. The reader will find the opinion of Gray, C. J., in Hill v. Boston, 122 Mass. 344; s. c. 23 Am. Rep. 332, highly instructive as to the character of New England towns and cities. As to general liabilities, there is no substantial distinction between cities and towns under the legislation of Massachusetts. Ib. p. 354.