islature 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 how their debts shall be paid on their dissolution, held the act authorizing increased taxation to be valid, and dismissed the bill.'

§ 37. 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, 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.'

'Layton v. New Orleans, 12 La. An. 515, 1857. See, also, Girard v. Philadelphia, 7 Wall. 1, 1868; People v. Hill, 7 Cal. 97, 1857; post, chap VIII; State v. Flanders, 24 La. An. 57.

Girard. Philadelphia, 7 Wall. 1, 1868; Philadelphia v. Fox, 64 Pa. St. 169, 1870; Montpelier v. East Montpelier (division of town and contest as to trust property held for the benefit of the inhabitants of the original

§ 38. The supremacy 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 if not there found, in terms, or by fair implication, they do not exist. In Eng land, 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 special constitutional restriction, as generally there is not, upon the

power.'

§ 39. It may assist 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 many courts, a double character-the one governmental, legislative, or public; the other, in a sense, proprietary or private. The distinction between these, though sometimes difficult to trace, is highly important, and is frequently referred to, particularly in the cases relating to the implied or common law liability of municipal corporations for the negligence 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

township), 29 Vermont (3 Wms.) 12, 1856; same controversy at law, 27 Vermont, 704. See infra, sec. 47, and chapters on Corporate Property and Remedies against Illegal Corporate Acts, post.

1 St. Louis v. Allen (extension of city limits), 13 Mo. 400, 1850; St. Louis v. Russell, 9 Mo. 503, 1845. It is justly observed, that " Most, if not all, of the leading cases in the books, involving the question of the inviolability of municipal charters, in the English courts, arose between the prerogative of the crown and the corporation. The right or power of parliament in England, or of the legislature here, would present (and was decided to present) quite a different question." Per Nelson, J., in People v. Morris, 13 Wend. 325, 334, 1835; Philadelphia v. Field, 58 Pa. St. 320, 1868.

Ante, secs. 10, 11. "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 character, :n

151 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, and not 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 some peculiar provision of 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 particular corporation as a distinct legal personality, and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded as quo ad hoc a private corporation, or, at least, not public in the sense that the power of the legislature over it is omnipotent.'

the management of property and rights voluntarily held by them for their own immediate profit or 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, 1869; S. P. Detroit v. Corey, 9 Mich. 165, 184, 1861. In the one case, no private action lies unless it be expressly given; in the other, there is an implied or common law liability for the negligence of their officers in the discharge of such duties. In further illustration of this alleged dual character, the reader is referred to the cases cited in the next note. Post, §§ 761, 778, 779.

1 West. Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175; Ib. 185; Bailey . Mayor, &c. of New York, 3 Hill, 531; Small v. Danville, 51 Maine, 359; Jones v. New Haven, 34 Conn. 1; Western Coliege v. Cleveland, 12 Ohio St. 375, 1861; Howe v. New Orleans, 12 La. An. 481; Martin v. Mayor, &c. 1 Hill, 545; Buttrick v. Lowell, 1 Allen, 172; Oliver v. Worcester, 102 Mass. 489, 1869; Touchard v. Touchard, 5 Cal. 306; Gas Co. v. San Francisco. 9 Cal. 453; Commissioners v. Duckett, 20 Md. 468; Weet v. Brookport, 16 N. Y. 161, note; Louisville v. University of Louisville, 15 B. Mou. 642; Louisville v. Commonwealth, 1 Duvall (Ky.) 295; Weightman v. Washington, 1 Black (U. S.) 39, 1861; Reading v. Commonwealth, 11 Pa St. 196, 1849; Richmond v. Long's Admr., 17 Gratt. (Va.) 375; De Voss v. Richmond, 18 Gratt. 338; S. C., 7 Am. Law Reg. (N. S.) 589; Detroit v

40. It is, perhaps, at present, impossible to state, with confidence, 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

Corey, 9 Mich. 165, 184, 1861; People v. Hurlburt, 24 Mich. 44, 1871, opinion of Cooley, J. As to what are municipal duties, and what falls within the scope of municipal powers, see United States v. Baltimore & Ohio Railroad Company, decided by the United States Supreme Court, December term, 1872. Post, sec. 615 a.

This division of the powers and duties of a municipal corporation into two classes, one public and the other private, is, to our mind, far from satisfactory; and the private character thus ascribed to it, difficult exactly to comprehend. 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 state at large? 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. Ante, p. 97. Contracts in favor of the creditor are protected by the national constitution; but as against a state, what private powers and rights can a municipal corporation be said to have, when 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 to escape technical difficulties in order to hold such corporations liable to private actions. On this subject, the opinion of Chief Justice Denio, in Darlington v. Mayor, &c., 31 N. Y. 164, 1865, may be read with profit. The Chief Justice there asserts the unlimited power of the legislature over municipal corporations and their property. He maintains that such corporations are altogether public, and all their rights and powers public in their nature, and that their property, though held for income or sale, and unconnected with 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 o. The Mayor, &c., of New York, 3 Hill, 531, and other cases, between the public and private functions of city governments, and maintains that as respects the state, all their powers and functions are public. He affirms that the legislature may compel a municipal corporation to submit to arbitration claims as to which private corporations and natural persons would be entitled by the constitution to a trial by jury. Gray v. Brooklyn, 10 Abb. Pr. Rep. N. S. 186; post, sec. 760. See, as to jury, Dunsmore's Appeal, 52 Pa. St. 374. Holding contrary view, Plimpton v. Somerset, 33 Vt. 283, 1860. See, also, chapters on Municipal Courts, Property, and Ordinances, post.

upon the subject, and attempt to extract the principles upon which they rest.

It is decided that a grant by the legislature of the state to a town, of the right to establish a ferry, is not in the nature of a contract, hence the grant is repealable, and the corporation may constitutionally be deprived of the franchise.' So an act conferring upon a municipal corporation a public trust, and the title to land as ancillary to its execution, is not a contract, but may be repealed at the will of the legislature. But suppose the legislature had granted in fee, to the corporation, a tract of land within its limits, is such a grant, or an ordinary grant of land to the corporation from others, a contract as respects the state, and protected by the constitution from legislative invasion, the same as if the grant had been made. to, or the property acquired by, an individual or private corporation? The question thus stated has never arisen directly for adjudication in the Supreme Court of the United States; but, in the celebrated Dartmouth College Case, two of the judges expressed the opinion that the legislative control over public and municipal corporations was not so transcendent and absolute as to extend to an arbitrary

East Hartford v. Hartford Bridge Co., 10 How. 511, 1850; S. C., 16 Conn. 149; 17 Ib. 79; Trustees v. Tatman, 13 Ill. 30; Police Jury v. Shreveport, 5 La. An. 661, 1850; Darlington v. Mayor, 31 N. Y. 164, 202, 203, per Denio, C. J.

People v. Vanderbilt, 26 N. Y. 287, 1863. Where an act incorporating a city donated lands included therein, for the erection of certain public buildings, and the residue to be applied to education, and the charter was afterwards repealed. it was held that until the trust had been executed it was competent for the legislature to change or abolish it, and that the repeal of the charter extinguished the trusts, they being public, unexecuted, and conditional. Bass v. Fontleroy, 11 Texas, 698-708, 1854. Where an act of the legislature, instead of granting certain moneys received by the state for the purposes of internal improvements to certain counties absolutely, simply appropriated it to be drawn by such counties and expended by them in the improvement of roads, &c., it was held that before its expenditure by the counties the legislature had entire control over the fund, and might resume or change the purposes for which it was originally designed to be expended, or provide for the payment by an old county, which had received, but not expended, its proportion of such fund, to a new county erected out of the old county of an equitable share of the fund. Richland County . Lawrence County, 12 Ill. 1, 1850, distinguished from Hampshire t. Franklin, 16 Mass. 76. Pust, chap. VIII.