decision which, under the law, must be made by the council itself. The trust was an important and delicate one, as the expenses of the improvement were, by the statute, to be paid by the owners of the property in front of which it was made. It was in effect a power of taxation; and taxation is the exercise of sovereign authority; and nothing short of the most positive and explicit language could justify the court in holding that the legislature intended to confer such a power, or permit it to be conferred, on a city officer or committee. The statute in question not only contained no such language, but, on the contrary, clearly expressed the intention of confining the exercise of this power to the common council, the members of which were elected by and responsible to those whose property they were thus allowed to tax.1

This restriction, it will be perceived, is the same which rests upon the legislative power of the State, and it springs from the same reasons. The people in the one case in creating the legislative department, and the legislature in the other in conferring the corporate powers, have selected the depositary of the power which they have designed should be exercised, and in confiding it to such depositary have impliedly prohibited its being exercised by any other agency. A trust created for any public purpose cannot be assignable at the will of the trustee.2

1 Thompson v. Schermerhorn, 6 N. Y. 92. See also Smith v. Morse, 2 Cal. 524; Oakland v. Carpentier, 13 Cal. 540; Whyte v. Nashville, 2 Swan, 364; East St. Louis v. Wehrung, 50 Ill. 28; Ruggles v. Collier, 43 Mo. 353; State v. Jersey City, 25 N. J. 309; Hydes v. Joyes, 4 Bush, 464; Lyon v. Jerome, 26 Wend. 485; State v. Paterson, 34 N. J. 168; State v. Fiske, 9 R. I. 94; Kinmundy v. Mahan, 72 Ill. 462; Davis v. Reed, 65 N. Y. 566; Supervisors of Jackson v. Brush, 77 Ill. 59; Thomson v. Booneville, 61 Mo. 282; In re Quong Woo, 13 Fed. Rep. 229; Cornell v. State, 6 Lea, 624; Benjamin v. Webster, 100 Ind. 15; Minneapolis Gaslight Co. v. Minneapolis, 36 Minn. 159; Dillon, Mun. Corp. § 60. Compare In re Guerrero, 69 Cal. 88.

2 The charter of Washington gave the corporation authority “to authorize the drawing of lotteries, for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; provided that the amount raised in each year shall not exceed ten thousand dollars.

And provided also that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved by him." Marshall, Ch. J., speaking of this authority, says: "There is great weight in the argument that it is a trust, and an important trust, confided to the corporation itself, for the purpose of effecting important improvements in the city, and ought, therefore, to be executed under the immediate authority and inspection of the corporation. It is reasonable to suppose that Congress, when granting a power to authorize gaming, would feel some solicitude respecting the fairness with which the power should be used, and would take as many precautions against its abuse as was compatible with its beneficial exercise. Accordingly, we find a limitation upon the amount to be raised, and on the object for which the lottery may be authorized. It is to be for any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; and is subjected to the judg

Equally incumbent upon the State legislature and these municipal bodies is the restriction that they shall adopt no irrepealable legislation. No legislative body can so part with its powers by any proceeding as not to be able to continue the exercise of them. It can and should exercise them again and again, as often as the public interests require. Such a body has no power, even by contract, to control and embarrass its legislative powers and duties. On this ground it has been held, that a grant of land by a municipal corporation, for the purposes of a cemetery, with a covenant for quiet enjoyment by the grantee, could not preclude the corporation, in the exercise of its police powers, from prohibiting any further use of the land for cemetery purposes, when the advance of population threatened to make such use a public nuisance. So when "a lot is granted as a place of deposit for gunpowder, or other purpose innocent in itself at the time; it is devoted to that purpose till, in the progress of population, it becomes dangerous to the property, the safety, or the lives of hundreds; it cannot be that the mere form of the grant, because the parties choose to make it particular instead of general and absolute, should prevent the use to which it is limited being regarded and treated as a nuisance, when it becomes so in fact. In this way the legislative powers essential to the comfort and preservation of populous communities might be frittered away into perfect insignificance. To allow rights thus to be parcelled out and secured beyond control would fix a principle by which our cities and villages might be broken up. Nuisances might and undoubtedly would be multiplied to an intolerable extent." 3

ment of the President of the United States. The power thus cautiously granted is deposited with the corporation itself, without an indication that it is assignable. It is to be exercised, like other corporate powers, by the agents of the corporation under its control. While it remains where Congress has placed it, the character of the corporation affords some security against its abuse, -some security that no other mischief will result from it than is inseparable from the thing itself.

But if the management, control, and responsibility may be transferred to any adventurer who will purchase, all the security for fairness which is furnished by character and responsibility is lost." Clark. Washington, 12 Wheat. 40, 54.

1 East Hartford v. Hartford Bridge Co., 10 How. 511; Dillon, Mun. Corp. § 61. 2 Brick Presbyterian Church v. City

of New York, 5 Cow. 538; New York v. Second Avenue R. R. Co., 32 N. Y. 261. Compare Kincaid's Appeal, 66 Pa. St. 411; s. c. 5 Am. Rep. 377. Permission to build out over and under a sidewalk is a mere revocable license. Winter v. City Council, 83 Ala. 589. But after telephone poles have been erected by a company in certain streets designated by the city, it cannot revoke the designation at its mere will. Hudson Tel. Co. v. Jersey City, 49 N. J. L. 303.

3 Coats v. Mayor, &c. of New York, 7 Cow. 585; Davenport v. Richmond, 81 Va. 636. See also Davis v. Mayor, &c. of New York, 14 N. Y. 506; AttorneyGeneral v. Mayor, &c. of New York, 3 Duer, 119; State v. Graves, 19 Md. 351; Goszler v. Georgetown, 6 Wheat. 598; Louisville City R. R. Co. v. Louisville, 8 Bush, 415.

And on the same ground it is held that a municipal corporation, having power to establish, make, grade, and improve streets, does not, by once establishing the grade, preclude itself from changing it as the public needs or interest may seem to require, notwithstanding the incidental injury which must result to those individuals who have erected buildings with reference to the first grade. So a corporation having power under the charter to establish and regulate streets cannot under this authority, without

explicit legislative consent, permit individuals to lay down a railway in one of its streets, and confer privileges exclusive in their character and designed to be perpetual in duration. In a case where this was attempted, it has been said by the court: "The corporation has the exclusive right to control and regulate the use of the streets of the city. In this respect it is endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts for which the power is conferred. An ordinance regulating a street is a legislative act, entirely beyond the control of the judicial power of the State. But the resolution in question is not such an act. Though it relates to a street, and very materially affects the mode in which that street is to be used, yet in its essential features it is a contract. Privileges exclusive in their nature and designed to be perpetual in their duration are conferred. Instead of regulating the use of the street, the use itself to the extent specified in the resolution is granted to the associates. For what has been deemed an adequate consideration, the corporation has assumed to surrender a portion of their municipal authority, and has in legal effect agreed with the defendants that, so far as they may have occasion to use the street for the purpose of constructing and operating their railroad, the right to regulate and control the use of that street shall not be exercised. . . . It cannot be that powers vested in the corporation as an important public trust can thus be frittered away, or parcelled out to individuals or joint-stock associations, and secured to them beyond control." 1

So, it has been held that the city of Philadelphia exercised a portion of the public right of eminent domain in respect to the streets within its limits, subject only to the higher control of the State and the use of the people; and therefore a written license granted by the city, though upon a valuable consideration, authorizing the holder to connect his property with the city railway by a turnout and track, was not such a contract as would prevent

1 Milhau v. Sharp, 17 Barb. 435; s. c. 28 Barb. 228, and 27 N. Y. 611; Birmingham, &c. St. Ry. Co. v. Birmingham St. Ry. Co., 79 Ala. 465; Nash v. Lowry, 37 Minn. 261; Jackson, &c. R. Co. v. Interstate, &c. Co., 24 Fed. Rep. 306. See also Davis v. Mayor, &c. of New York, 14 N. Y. 506; State v. Mayor, &c., 3 Duer, 119; State v. Graves, 19 Md. 351. Compare Chicago, &c. R. R. Co. v. People, 73 Ill. 541. Nor can an exclusive privilege be granted to a gas company to use the streets. Gas Co. v. Parkersburg, 30 W. Va. 435; Cincinnati Gaslight Co. v.

Avondale, 43 Ohio St. 257; Citizens' Gas, &c. Co. v. Elwood, 114 Ind. 332. The consent of the legislature in any such case would relieve it of all difficulty, except so far as questions might arise concerning the right of individuals to compensation, as to which see post, ch. 15. In Milhau v. Sharp, supra, it was also held that a corporation, with authority "from time to time to regulate the rates of fare to be charged for the carriage of persons," could not by resolution divest itself thereof as to the carriages employed on a street-railway.

the city from abandoning or removing the railway whenever, in the opinion of the city authorities, such action would tend to the benefit of its police.1

While thus held within the limitations which govern the legislative authority of the State, these corporations are also entitled to the protections and immunities which attend State action, and which exempt it from liability to those who may incidentally suffer damage in consequence. As no State does or can undertake to protect its people against incidental injuries resulting from its adopting or failing to adopt any proposed legislative action, so no similar injury resulting from municipal legislative action or nonaction can be made the basis of a legal claim against a municipal corporation. The justice or propriety of its opening or discontinuing a street, of its paving or refusing to pave a thoroughfare or alley, of its erecting a desired public building, of its adopting one plan for a public building or work rather than another, or of the exercise of any other discretionary authority committed to it as a part of the governmental machinery of the State, is not suffered to be brought in question in an action at law, and submitted to the determination of court and jury.2 If, therefore, a city tem

1 Branson v. Philadelphia, 47 Pa. St. 329. Compare Louisville City R. R. Co. v. Louisville, 8 Bush, 415.

2 In Griffin v. New York, 9 N. Y. 456, 459, in which it was held that an action would not lie against a city for injury occasioned by a failure to keep its streets free from obstructions, the following remarks are made: "The functions of a common council as applied to this subject are those of a local legislature within certain limits, and are not of a character to render the city responsible for the manner in which the authority is exercised, or in which the ordinances are executed, any more than the State would be liable for the want of adequate administrative laws, or from any imperfections in the manner of carrying them out." "A doctrine that should hold the city pecuniarily liable in such a case would oblige its treasury to make good to every citizen any loss which he might sustain for the want of adequate laws upon every subject of municipal jurisdiction, and on account of every fail ure in the perfect and infallible execution of those laws. There is no authority for such a doctrine, and we are satisfied it does not exist." Where a city under proper authority has vacated part of a street, an abutter on another part of it

has no ground of complaint. Whitsett v. Union D. & R. Co., 10 Col. 243. A court cannot control the discretion of a city in opening and working streets. Bauman v. Detroit, 58 Mich. 444. So, where a city was sued for an injury sustained in the destruction of property by a mob, in consequence of the failure of officers to give adequate protection, the court, in holding that the action will not lie, say: "It is not the policy of the government to indemnify individuals for losses sustained either from the want of proper laws, or from the inadequate enforcement of laws." Western College v. Cleveland, 12 Ohio St. 375, 377. A city is not liable for the destruction of a house by fire set by sparks from an engine which was by its ordinances a nuisance subject to abatement. "In the exercise of such powers a city is not bound to act unless it chooses to act." Davis v. Montgomery, 51 Ala. 139; s. c. 23 Am. Rep. 545. Nor for failure to enforce a fire limits ordinance whereby adjoining property is burned. Hines v. Charlotte, 40 N. W. Rep. 333 (Mich.). Nor for failure to prohibit manufacture of fireworks. McDade v. Chester, 117 Pa. St. 414. Nor is it liable for neglect to construct a proper system of drainage, in consequence of which plaintiff's store was