this: that where powers pertaining to the duties of a corporation are conferred upon those who officially represent the corporation, these powers, unless the contrary appear, are deemed to be conferred upon them in their corporate, not their individual, character-in other words, upon the corporation itself.'

Exemption of Revenues from Judicial Seizure.

§ 64. Municipal corporations are instituted by the supreme authority of a state for the public good. They exercise, by delegation from the legislature, a portion of the sovereign power. The main object of their creation is to act as administrative agencies for the state, and to provide for the police and local government of certain designated civil divisions of its territory. To this end they are invested with governmental powers and charged with civil, political, and municipal duties. To enable them beneficially to exercise these powers and discharge these duties, they are clothed with the authority to raise revenues by taxation and other modes, as by fines and penalties. The revenue of the public corporation is the essential means by which it is enabled to perform its appointed work. Deprived of its regular and adequate supply of revenue, such a corporation is practically destroyed, and the very ends of its erection thwarted. Based upon considerations of this character, it is the settled doctrine of the law that the taxes and public revenues of such corporations cannot be seized under execntion against them. Such taxes and revenues cannot be seized either in the treasury or when in transit to it. Judg ments rendered for taxes, and the proceeds of such judg ments in the hands of officers of the law, are not subject to execution unless so declared by statute. The doctrine of the inviolability of the public revenues by the creditor is maintained, although the corporation is in debt, and has no

Conrad v. Ithaca, 16 N. Y. 158, per Selden, J., p. 170; Hickok . Plattsburg, 15 Barb. S. C. 427; Glidden v. Unity, 10 Fost. (N. H.) 104, 119; post, § 778.

Ante, chap. II. secs. 9 11.

means of payment but the taxes which it is authorized to collect.'

§ 65. Upon similar considerations of public policy, municipal corporations and their officers have usually, though not uniformly, been considered not to be subject to garnishment, although private corporations, equally with natural persons, are liable to this process. The cases on the subject, as respects municipal corporations, are referred to

'Edgerton v. Municipality, 1 La. An. 435, 1846, where the subject is ably discussed in the opinion of Rost, J. He says: "On the first view of this question there is something very repugnant to the moral sense in the idea that a municipal corporation should contract debts, and that, having no resources but the taxes which are due to it, these should not be subjected, by legal process, to the satisfaction of its creditors. This consideration, deduced from the principles of moral duty, has only given way to the more enlarged contemplation of the great and paramount interests of public order and the principles of government." Ib. 440. S. P. Municipality v. Hart, 6 La. An. 570, 1851. This case holds that a judgment in favor of the corporation for a fine incurred for a violation of a municipal ordinance is exempt from execution; but that an ordinary debt due the corporation (as on a bond taken for paving) is liable to be seized. But quære? In Edgerton v. Municipality, supra, it was decided that the public taxes and revenues of the corporation could not be seized under execution, notwithstanding the general provision of the Code of Practice of Louisiana, authorizing the seizure, under execution, of "all sums of money which may be due to the debtor in whatsoever right,"-this general language being construed to refer alone to rights of property, and not to taxes imposed for the protection of those rights. So in the Railroad Co. v. Municipality, 7 La. An. 148, 1852, it was held that perpetual ground rents, created and intended by the legislature to form part of the permanent revenue of the city to enable it to exercise its municipal powers of police and local government, cannot be sold on execution against the corporation.

The public nature of municipal corporations is well illustrated by the decision of the Supreme Court of the United States in the late case of The United States v. The Baltimore & Ohio Railroad Company, Dec. Term, 1872. The case involved the right of Congress to levy a tax upon the income or property of a municipal corporation; and viewing such a corporation as an arm of the state, and partaking of the state's exemption from liability to be taxed upon the means and instrumentalities employed in conducting its operations, it was held that the tax sought to be enforced under the Internal Revenue Act could not be collected. Post, sec. 615 a. See chapter on Taxation, post. Property owned by a city as an investment of funds merely, held liable to seizure on execution. New Orleans v. Insurance Co.. 23 La. An. 61, 1871. Post, secs. 446, 686, 693, 712.

in the note, and it will be seen, on examination, that some of them turn on the construction of particular statutes, and that the judges differ in opinion respecting the policy and expediency of subjecting, upon general principles, such corporations to the process of garnishment. The author suggests, where the question is left entirely open by statute, that, on principle, a municipal corporation should be exempt from liability of this character with respect to its revenues and the salaries of its officers, but that where it owes an ordinary debt to a third person, the mere incon. venience of having to answer as garnishee furnishes no sufficient reason for withdrawing it from the reach of the remedies which the law gives to creditors of natural persons and private corporations.'

The Supreme Court of Pennsylvania is of the opinion that, on principle, a municipal corporation or its officers are not subject to garnishment on attachment or execution, and that, by the statutes of that state, they are not made liable thereto. Erie v. Knapp, 29 Pa. St. 173, 1857; Bulkley v. Eckert, 3 Barr (Pa.) 368, per Sargeant, J.; S. P. McDougal v. Supervisors, 4 Minn. 184; Bradley v. Richmond, 6 Vt. 121; Burnham v. Fond du Lac, 15 Wis. 193, 1862, where the inconvenience of the opposite doctrine is forcibly pointed out by Paine, J.; Drake on Attach., sec. 516, 10; Hadley v. Peabody, 13 Gray, 200.

In Missouri, also, it is held, upon general principles, that municipal corporations are not subject to garnishment on account of salary due to their officers. Hawthorn v. St. Louis, 11 Mo. 59, 1847; S. P. Fortune v. St. Louis, 23 Mo. 239, 1856, where the decision is placed upon the broad ground that such corporations are not liable to be garnished, and not on the ground that an officer's salary is exempt from such process. Sec, also, Neuer v. Fallon, 18 Mo. 277. Since the first edition of this work the Supreme Court of Missouri has modified in an important respect the broad statement of the doctrine held in the former cases. See Pendleton v. Perkins and the City of St. Louis, 49 Mo. 565, 1872. It was there held, after great consideration, that a city corporation in that state is subject to garnishment where the main debtor has absconded so that judgment cannot be obtained against him and he has no property in the state subject to attachment, but has money in the city treasury belonging or due to him, and that it may in such case be reached by bill in equity in the first instance without a previous judgment at law and without showing fraud or other ground of equitable jurisdiction. It was so decided, notwithstanding the garnish. ment act, in terms, exempts municipal corporations from its operation. The opinion of Bliss, C. J., is very full and elaborate.

In Connecticut, public officers having money in their hands, to which an individual is entitled, are not subject to garnishment at the suit of the creditors of such individual. Stillman v. Isham, 11 Conn. 123, 1835, and cases

cited; Ward v. County of Hartford, 12 7b. 404, 408. And in that state, a county, not having power to contract a debt for which an action will lie against it, is not subject to garnishment in such a case. Ward v. County of Hartford, 12 Conn. 404. But under a statute enabling towns and cities to contract debts, and which provides that debts due from "any person " to a debtor may be attached, these corporations may be factorized or garnished. Bray . Wallingford, 20 Conn. 416, 1850.

In Smoot . Hart, 33 Ala. 69, 1858, it is held that the marshal of a city may be garnished for city funds in his hands; whether the treasurer could be garnished not decided. Mayor v. Rowland, 26 Ala. 498, holds that a municipal corporation cannot be garnished as respects accruing salaries to its officers. See, also, Clark v. School Com., 36 Ala. 621. In Massachusetts, a county is not chargable as a garnishee for jurors' fees. Williams v. Board man, 9 Allen, 570. In Maryland, notwithstanding a general statute of the state authorized the garnishment of any "person or persons whatever, corporate or sole," it was held that municipalities were not included, and that, upon general grounds of public policy and convenience, the city could not be garnished in respect of money due from the salaries of its officers, although the officer whose salary was attached could have sued the city therefor. Baltimore v. Root, 8 Md. 95, 1855. The city, in this case, was garnished in respect of money due from it to a police officer.

But in New Hampshire, under a statute making "any corporation possessed of any money" of the debtor subject to garnishment, a town was held to be included. Whidden v. Drake, 5 N. H. 13. See Brown v. Heath, 45 N. H. 185. In Iowa, it was held that the words "debtor or person holding property," in the attachment act, extended to municipal corporations, and that they were subject to garnishment with respect to ordinary debts which they owed the main debtor. Wales v. Muscatine, 4 Iowa, 302, 1856. The decision of the court asserts the liability to garnishment on general principles; but subsequently the legislature enacted that "a municipal or political corporation should not be garnished." Rev. 1860, sec. 3196. Requisites of notice to corporation, Claflin v. Iowa City, 12 Iowa, 284; Williams. Kenney, 98 Mass. 142. In Ohio, under a statute which provides that “any claims or choses in action, due or to become due" to the judg ment debtor, or "money which he may have in the hands of any person, body politic or corporate," are subject to execution, salaries of officers of incorporated cities, due and unpaid, may be subjected by the judgment creditors of such officers to the payment of their judgments, and municipal corporations may be garnished with respect to such salaries. The court admits the conflict in the decisions of other states upon similar statutes, but regards the construction above given as being in accordance with public policy and the meaning of the statute. Newark v. Funk, 15 Óhio St. 462, 1864. In Illinois, municipal corporations are not subject to garnishment in any case, no matter what may be the character of the indebtedness. This position is maintained by Lawrence, J., with great force. Merwin v. Chicago, 45 Ill. 133. Waiver. Clappt Walker, 25 Iowa, 315.

CHAPTER VI.

MUNICIPAL CHARTERS.-CONTINUED.

Special Powers and Special Limitations.

3

§ 66. While municipal corporations are instituted for the same general purposes, heretofore explained,' and while there is a striking resemblance in the authority with which they are clothed, yet, except when organized under general acts, the powers given to them are various, both in character and extent. True policy, indeed, requires, as before sug gested, that the powers of these bodies should, in general, be confined to subjects connected with civil government and local administration, but legislatures are usually liberal in grants of this character, and there is no limit to the faculties and capacities with which municipal creations may be endowed, unless that limit is contained in the state constitution. The leading powers ordinarily possessed by municipalities, such as those relating to contracts, eminent domain, streets, taxation, ordinances, corporate officers, actions, and the like, will be, hereafter, separately treated. But it will be convenient to notice, in this place, some special powers usually or often conferred upon municipalities, and some special limitations upon ordinary municipal powers, and the construction which such provisions have judicially received. We shall here consider the following subjects as they relate to municipal corporations: 1. Wharves. 2. Ferries. 3. Borrowing Money. 4. Limitations on the Power to Create Debts. 5. Rewards for Offenders. 6. Public Buildings. 7. Police Powers and Regulations. 8. Prevention of Fires. 9. Quarantine and Health. 10. Indemnifying Officers. 11. Furnishing Entertainments.

Ante, chaps. I., II.; supra, secs. 63, 64.

Ante, sec. 19.

Aurora v. West, 9 Ind. 74, 1857; ante, chap. IV.