and void. His counsel, in their very able argument, maintained in substance that a municipal corporation is of a dual character, and possesses two classes of powers and two classes of rights, public and private; that in all that relates to one class it is merely the 88 agent of the state and subject to its control, and that in the other it is the agent of the inhabitants of the place, and not subject to the absolute control of the legislature, its creator; that among the latter is the right to acquire, hold, and dispose of property to sue and be sued, just as certain rights are conferred upon private corporators and persons not sui juris, such as minors and married women, but are not afterwards as long as they exist under legislative control.

They maintain in effect that the act is unconstitutional as being repugnant to that provision of the constitution of this state which provides that no man shall be deprived of his property except by due process of law. They contend that what they say is the private property of a public corporation is held by such corporation under all the constitutional guarantees as similar property would be protected by in the hands of individual owners and properties, and this protection exempts a public corporation, as to its water-works, from the regulation and control of the state as effectually as against trespass and wrong committed by individuals.

This is in effect the position of the plaintiff in error.

The questions involved in this case necessarily lead to the consideration of the nature, character, and powers of corporations, private and public.

A corporation is a legal institution devised to confer upon the individuals of which it is composed powers, privileges and immunities which they would not otherwise possess, the most important of which are continuous legal identity and perpetual or indefinite succession under the corporate name, notwithstanding successive changes by death or otherwise in the corporations or members of the corporation.

It is a legal person with a special name composed of such members and indorsed with such powers and such only as the law prescribes: Dillon on Municipal Corporations, 25.

It is an artificial being, invisible, intangible, and existing only in contemplation of law: Dartmouth College case, 4 Wheat. 637.

Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it

either expressly or as incidental to its very existence. These are such as 89 are supposed to be best calculated to effect the object for which it is created.

Corporations are of two kinds, public and private. "Private corporations," says Cooley, "are created for private as distinguished from purely public purposes, and they are not in contemplation of law public, because it may have been supposed by the legislature that their establishment would promote either directly or consequentially the public interest. They cannot be compelled to accept a charter or incorporating act. The assent of the corporation is necessary to make the incorporating statute operative, but when assented to, the legislative grant is irrevocable, and it cannot, without the consent of the corporation, be impaired or be destroyed by any subsequent act of legislation unless the right to do so was reserved at the time."

By the nineteenth section of the second article of the constitution of this state, it is declared that "no act of incorporation, except for the renewal of existing corporations, shall be hereafter enacted without the concurrence by twothirds of each branch of the legislature, and with a reserved power of revocation by the legislature; and no act of incorporation which may hereafter be enacted shall continue in force for a longer period than twenty years without reenactment of the legislature, unless it be an incorporation for public improvement."

"Corporations," says Cooley, "intended to assist in the conduct of local self-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."

Thus an incorporated school district or county as well as city is a public corporation; but the school district or county is not, while the city is, a municipal corporation.

All municipal corporations are public bodies created for civil or political purposes; but all civil, political, public corporations are not in the proper use of language municipal corporations.

A municipal corporation may be defined to be a body politic and corporate established by law to assist in the civil government of the state with delegated authority to regulate

and administer 90 the local or internal affairs of a city, town, or district which is incorporated.

"A body politic," says Lord Coke, "is a body to take in succession, formed as to its capacity by policy," and is therefore called by Littleton (secs. 4, 13) a body politic. It is called a corporation or body corporate because the persons are made into a body politic, and are of capacity to take, grant, etc., by a particular name.

Public corporations for the government of a town, city, or the like, being for public advantage, are to be governed according to the law of the land. They are the mere creatures of the public institution, created exclusively for the public advantage, without other endowments than such as the government may bestow upon them.

"It would seem reasonable," says Mr. Justice Washington, in Dartmouth College v. Woodward, 4 Wheat. 661, "that such a corporation may be controlled and its constitution altered and amended by the government in such manner as the public interest may require. Such legislative interferences cannot be said to impair the contract by which the corporation was formed, because there is in reality but one party to it." There is in fact no contract in any just sense of that word, and public municipal corporations are not founded on contracts.

The city of Wilmington is a public corporation. It is a municipal corporation which is, as we have seen, an incorporation by the authority of the state of the inhabitants of a particular place or district, and authorizes them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns.

The style and name of the corporation is the mayor and council of Wilmington, and it is declared by its charter that by that name they shall be and are hereby made able and capable in law, to have, take, purchase, receive, possess, enjoy, and retain to them and their successors, lands, tenements, hereditaments, goods, chattels, and effects of what kind, nature, or quality soever, and the same to sell, grant, demise, alien, or dispose of, to sue and be sued, implead and be impleaded, answer and be answered, defend and be defended, in all courts of law and equity, or any other place whatsoever, and also to make, have, and use a common seal, and the same to break, alter, 91 and renew at their pleasure, gen

erally to have all the privileges and franchise incident to a corporation or body politic.

Because it is a municipal corporation the plaintiff in error contends that its inhabitants are constitutionally entitled to all the rights and privileges of independent local self-government, and that all the property which the corporation is capable to have, take, purchase, receive, and possess not necessary for the discharge of purely governmental purposes is as against the state, as well as against individuals, subject to the absolute and uncontrolled possession of the corporation as solely and absolutely as is the property of a purely private corporation or of a private individual. And that the provision of our constitution guaranteeing the rights of property to the owners thereof is applicable to such property and its owners, equally as to like property when owned by private individuals.

The theory of the plaintiff in error, as presented and discussed by his counsel, is a beautiful one. It has all the charm which attaches to the principle of local self-govern

ment.

Whether the universal recognition by legislative and judicial tribunals as applicable to municipal corporations would be attended by all the advantages, and result in all the beneficial consequences supposed by its advocates, can only be determined when human experience in this respect, if ever, may safely be invoked as a final arbiter.

Does the law, as the court should determine it to be, support the plaintiff's theory?

All that is absolutely necessary for us to say upon this subject is this: The corporation of the city of Wilmington, that is the people residing in the district known as the city of Wilmington, the name and style of whose corporation, that is the incorporation of the persons and inhabitants of that particular place, is the mayor and council of Wilmington, is merely an agency instituted by the state for the purpose of carrying out in detail the objects of government. It is essentially a revocable agency. It has no vested right to any of its powers or franchises. Its charter or act of right to incorporation is in no sense a contract with the state. It is subject to the control of the legislature, who may enlarge or diminish its territorial extent or its functions, and may change or modify its internal arrangement, or destroy its very existence at discretion. While it exists in subjection to

the will of the state, whose will can only be expressed by the legislature, it enjoys the rights and is subject to the liabil ities of any other corporation, public or private. It is because it is a body politic, and has a legal entity and name and a seal by which it can act, that in addition to these the legislature endowed it with the capacity to contract and be contracted with, to sue and be sued, to hold and dispose of property. It is because it has this capacity and these powers that it can acquire rights and incur responsibilities. These franchises were bestowed by the legislature upon it, that it might exercise certain powers of government, not independently of or in defiance of the legislature over that particular part of the state known territorially as the city of Wilmington.

These are its rights affecting its relations to other persons. They do not affect its relation to the state, because in certain particulars as a private corporation it may make contracts which it cannot impair. Its absolute dependence upon the will of the legislature for its existence is not thereby diminished or destroyed. Its responsibility in respect to its contracts or torts does not affect its relationship to the state. In our opinion the state may continue its corporate existence, and yet appoint all or any of the agencies through which it has heretofore been accustomed to act.

The city of Wilmington has no vested rights as against the state nor rights not subordinate to the authority of the stateIn this respect it is precisely on the same footing and sustainsthe same relation to the state as all other municipal corpora tions within the state. It has no dual character, as a corporation it is either public or private. It is bound to fulfill its legal contracts and to answer before the legal tribunals for its torts in the same manner and to the same extent as a private corporation or a private individual. The courts for the administration of justice are equally open to corporations of this character as to those of a private nature, or to private individuals. Its rights to property legally held, including the control and government thereof, in respect to all parties other than the state, are the same as if it were a real and not an ideal being.

In the case of Borough of Dunmore's Appeal, 52 Pa. St. 93 374, the court say: "Municipal corporations being creatures of the legislative power are subject to the legislative will in a The conmanner and to an extent to which citizens are not. stitutional guarantees of the citizen were respected in giving