It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion, and substitute those which are different.1 The rights and franchises of such a corporation, 1 St. Louis v. Allen, 13 Mo. 400; Coles v. Madison Co., Breese, 115; Richland County v. Lawrence County, 12 Ill. 1; Trustees of Schools v. Tatman, 13 Ill. 27; Robertson v. Rockford, 21 Ill. 1; People v. Power, 25 Ill. 187; St. Louis v. Russell, 9 Mo. 503; State v. Cowan, 29 Mo. 330; McKim v. Odorn, 3 Bland, 407; Granby v. Thurston, 23 Conn. 416; Harrison Justices v. Holland, 3 Grat. 247; Brighton v. Wilkinson, 2 Allen, 27; Sloan v. State, 8 Blackf. 361; Mills v. Williams, 11 Ired. 558; Langworthy v. Dubuque, 16 Iowa, 271; Weeks v. Milwaukee, 10 Wis. 242; State v. Branin, 23 N. J. 484; Patterson v. Society, &c., 24 N. J. 385; Atchison v. Bartholow, 4 Kan. 124; City of St. Louis v. Cafferata, 24 Mo. 94; People v. Draper, 15 N. Y. 532; Hawkins v. Commonwealth, 76 Penn. St. 151; People v. Tweed, 63 N. Y. 202; Barnes v. District of Columbia, 91 U. S. Rep. 540; Laramie Co. v. Albany Co., 92 U. S. Rep. 307; Aspinwall v. Commissioners. &c., 22 How. 364; Howard v. McDiamid, 26 Ark. 100; Philadelphia v. Fox, 64 Penn. St. 169; Bradshaw v. Omaha, 1 Neb. 16; Kuhn v. Board of Education, 4 W. Va. 499; Sinton v. Ashbury, 41 Cal. 530; Hess v. Pegg, 7 Nev. 23; Hagerstown v. Schuer, 37 Md. 180; San Francisco v. Canavan, 42 Cal. 541; State v. Jennings, 27 Ark. 419; Division of Howard Co., 15 Kan. 194; Martin v. Dix, 52 Miss. 53; Goff v. Frederick, 44 Md. 67; Blessing v. Galveston, 42 Tex. 641. The legislature may in its discretion recall to itself and exercise so much of such powers as it has conferred upon municipal corporations as is not secured to them by the constitution. People v. Pinkney, 32 N. Y. 377. The creditors of a county cannot prevent the legislature reducing its limits, notwithstanding their security may be diminished thereby. Wade v. Richmond, 18 Grat. 583. Compare Milner v. Pensacola, 2 Woods, 632, and Galesburg v. Hawkinson, 75 Ill. 152; Rader v. Road District, 36 N. J. 273. This power is not defeated or affected by the circumstance that the municipal corporation was by its charter made the trustee of a charity; and in such case, if the corporation is abolished, the Court of Chancery may be empowered and directed by the repealing act to appoint a new trustee to take charge of the property and execute the trust. Montpelier v. East Montpelier, 29 Vt. 12. And see Harrison v. Bridgeton, 16 Mass. 16; Montpelier Academy v. George, 14 La. Ann. 406; Reynolds v. Baldwin, 1 La. Ann. 162; Police Jury v. Shreveport, 5 La. Ann. 665; Philadelphia v. Fox, 64 Penn. St. 180; Weymouth and Braintree Fire Commissioners v. County Commissioners, 108 Mass. 142. Asto extent of power to hold property in trust, see Hatheway v. Sackett, 32 Mich. 97. But neither the identity of a corporation, nor its right to take property by devise, is destroyed by a change in its name, or enlargement of its area, or an increase in the number of its corporators. Girard v. Philadelphia, 7 Wall. 1. Changing a borough into a city does not of itself abolish or affect the existing borough ordinances. Trustees of Erie Academy v. City of Erie, 31 Penn. St. 515. being granted for the purposes of government, can never *become such vested rights as against the State that they [* 193] cannot be taken away; nor does the charter constitute a contract in the sense of the constitutional provision which prohibits the obligation of contracts being violated.1 Restraints on the legislative power of control must be found in the constitution of the State, or they must rest alone in the legislative discretion. If the legislative action in these cases operates inju Nor will it affect the indebtedness of the corporation, which will continue to be its indebtedness under its new organization. Olney v. Harvey, 50 Ill. 453. A general statute, containing a clause repealing all statutes contrary to its provisions, does not repeal a clause in a municipal charter on the same subject. State v. Branin, 23 N. J. 484. 1 This principle was recognized by the several judges in Dartmouth College v. Woodward, 4 Wheat. 518. And see People v. Morris, 13 Wend. 331; St. Louis v. Russell, 9 Mo. 507; Montpelier v. East Montpelier, 29 Vt. 12; Trustees of Schools v. Tatman, 13 II. 30; Brighton v. Wilkinson, 2 Allen, 27; Reynolds v. Baldwin, 1 La. Ann. 162; Police Jury v. Shreveport, 5 La. Ann. 665; Mt. Carmel v. Wabash County, 50 Ill. 69; Lake View v. Rose Hill Cemetery, 70 Ill. 191; Zitske v. Goldberg, 38 Wis. 216; Dillon, Mun. Corp. §§ 24, 30, 37. 2 See ante, p. *35; post, pp. *230, *233.Where a corporation is the mere creature of legislative will, established for the general good and endowed by the State alone, the legislature may, at pleasure, modify the law by which it was created. For in that case there would be but one party effected, the government itself, and therefore not a contract within the meaning of the constitution. The trustees of such a corporation would be the mere mandatories of the State, having no personal interest involved, and could not complain of any law that might abridge or destroy their agency." Montpelier Academy v. George, 14 La. Ann. 406. In Trustees of Schools v. Tatman, 13 Ill. 30, the court say: "Public corporations are but parts of the machinery employed in carrying on the affairs of the State; and they are subject to be changed, modified, or destroyed, as the exigencies of the public may demand. The State may exercise a general superintendence and control over them and their rights and effects, so that their property is not diverted from the uses and objects for which it was given or purchased." It is a lawful exercise of legislative authority upon the division of counties, towns, &c., to confer a part of the corporate property of the old corporation upon the new, and to direct the old body to pay it over to the new. Harrison v. Bridgeton, 16 Mass. 16; Salem Turnpike v. Essex Co., 100 Mass. 282; Whitney v. Stow, 111 Mass. 368; Stove v. Charlestown, 114 Mass. 214; Sedgwich Co. v. Banker, 14 Kan. 498; Portwood v. Montgomery, 52 Miss. 523; Bristol v. New Chester, 3 N. H. 524; Milwaukee Town v. Milwaukee City, 12 Wis. 93; Marshall Co. Court v. Calloway Co. Court, 3 Bush, 93. But it seems that an apportionment of property can only be made at the time of the division. Windham v. Portland, 4 Mass. 390; Hampshire v. Franklin, 16 Mass. 76. See Richland v. Lawrence, 12 Ill. 8; Bowdoinham v. Richmond, 6 Me. 112. In the latter case, it was held that the ap riously to the municipalities or to individuals, the remedy is not with the courts. The courts have no power to interfere, and the people must be looked to, to right through the ballot-box all these wrongs. This is the general rule; and the exceptions to it are not numerous, and will be indicated hereafter. portionment of debts between an old town and one created from it was in the nature of a contract; and it was not in the power of the legislature afterwards to release the new township from payment of its share as thus determined. But the case of Layton v. New Orleans, 12 La. Ann. 515, is contra. See also Borough of Dunmore's Appeal, 52 Penn. St.,374, which in principle seems to accord with the Louisiana case. In Burns v. Clarion County, 62 Penn. St. 422, it was held the legislature had the power to open a settlement made by county auditors with the county treasurer, and to compel them to settle with him on principles of equity. See further, Cambridge v. Lexington, 17 Pick. 222; Attorney-General v. Cambridge, 16 Gray, 247; Clark v. Cambridge, &c. Bridge Proprietors, 104 Mass. 236. The legislature has power to lay out a road through several towns, and apportion the expense between them. Waterville v. Kennebeck County, 59 Me. 80; Commonwealth v. Newburyport, 103 Mass. 129. And it may change the law and redistribute the burden afterwards, if from a change of circumstances or other reasons it is deemed just and proper to do so. Scituate v. Weymouth, 108 Mass. 131, and cases cited. A statute abolishing school districts is not void on grounds like the following: that it takes the property of the districts without compensation; that the taxes imposed will not be proportional and reasonable, or that contracts will be effected. Rawson v. Spencer, 113 Mass. 40. See Weymouth, &c. Fire District v. County Commissioners, 108 Mass. 142. 1 The correction of these abuses is as readily attained at the ballot-box as it would be by subjecting it to judicial revision. A citizen or a number of citizens may be subtracted from a county free from debt, having no taxation for county purposes, and added to an adjacent one, whose debts are heavy, and whose taxing powers are exercised to the utmost extent allowed by law, and this, too, without consulting their wishes. It is done every day. Perhaps a majority of the people, thus annexed to an adjacent or thrown into a new county by the division of an old one, may have petitioned the legislature for this change; but this is no relief to the outvoted minority, or the individual who deems himself oppressed and vexed by the change. Must we, then, to prevent such occasional hardships, deny the power entirely? "It must be borne in mind that these corporations, whether established over cities, counties, or townships (where such incorporated subdivisions exist), are never intrusted and can never be intrusted with any legislative power inconsistent or conflicting with the general laws of the land, or derogatory to those rights either of person or property which the constitution and the general laws guarantee. They are strictly subordinate to the general laws, and merely created to carry out the purposes of those laws with more certainty and efficiency. They may be and sometimes are intrusted with powers which properly appertain to private corporations, and in such matters their power as mere municipal corporations ceases." City of St. Louis v. Allen, 13 Mo. 414. *Powers of Public Corporations. [* 194] The powers of these corporations are either express or implied. The former are those which the legislative act under which they exist confers in express terms; the latter are such as are necessary in order to carry into effect those expressly granted, and which must, therefore, be presumed to have been within the intention of the legislative grant.1 Certain powers are also incidental to corporations, and will be possessed unless expressly or by implication prohibited. Of these an English writer has said: "A municipal corporation has at common law few powers beyond those of electing, governing, and removing its members, and regulating its franchises and property. The power of its governing officers can only extend to the administration of the by-laws and other ordinances by which the body is regulated." 2 But without being expressly empowered so to do, they may sue and be sued; may have a common seal; may purchase and hold lands and other * property for corporate purposes, [* 195] and convey the same; may make by-laws whenever necessary to accomplish the design of the incorporation, and enforce the same by penalties; and may enter into contracts to effectuate the corporate purposes. Except as to these incidental powers, and which need not be, though they usually are, mentioned in the charter, the charter itself, or the general law under which they exist, is the measure of the authority to be exercised. And the general disposition of the courts in this country has been to confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them; thus applying substantially the same rule that is applied 12 Kent, 278, note; Halstead v. Mayor, &c. of New York, 3 N. Y. 433; Hodges v. Buffalo, 2 Denio, 112; New London v. Brainerd, 22 Conn. 552; State v. Ferguson, 33 N. H. 424; McMillan v. Lee County, 3 Iowa, 311; La Fayette v. Cox, 5 Ind. 38; Clark . Des Moines, 19 Iowa, 212; State v. Morristown, 33 N. J. 63; Beaty v. Knowler, 4 Pet. 162; Mills v. Gleason, 11 Wis. 470. In this last case, it was held that these corporations had im plied power to borrow money for corporate purposes. And see also Ketcham v. Buffalo, 14 N. Y. 356. 2 Willcock on Municipal Corporations, tit. 769. 8 Angell & Ames on Corp. §§ 111, 239; 2 Kyd on Corp. 102; State v. Ferguson, 33 N. H. 430. See Dillon, Mun. Corp., for an examination, in the light of the authorities, of the several powers here mentioned. to charters of private incorporation. The reasonable presumption is that the State has granted in clear and unmistakable terms all it has designed to grant at all. 66 424. In Dunham v. Rochester, 5 Cow. 465, it is said: "For all the purposes of jurisdiction, corporations are like the inferior courts, and must show the power given them in every case. If this be wanting, their proceedings must be holden void whenever they come in question, even collaterally; for they are not judicial and subject to direct review on certiorari. 2 Kyd on Corp. 104-107." The power to create indebtedness does not by implication carry with it a power to tax for its payment. Jeffries v. Lawrence, 42 Iowa, 498. The approving vote of the citizens cannot give au authority the law has not conferred. McPherson v. Foster, 43 Iowa, 48. See Hackettstown v. Swackhamer, 37 N. J. 191. The power to enact ordinances necessary for government' does not authorize the grant of the franchise of a toll-bridge. Williams v. Davidson, 43 Tex. 1. In Nashville v. Ray, 19 Wall. 468, four of the eight justices of the Supreme Court denied the power of municipal corporations to borrow money or issue securities unless expressly authorized. Says Bradley, J.: Such a power does not belong to a municipal corporation as an incident of its creation. To be possessed it must be conferred by legislation, either express or implied. It does not belong, as a mere matter of course, to local government to raise loans. Such governments are not created for any such purpose. Their powers are prescribed by their charters, and those charters provide the means for exercising the powers; and the creation of specific means excludes others." Compare Bank of Chillicothe v. Chillicothe, 7 Ohio, 353; Clark v. School District, 3 R. I. 199; State 1 Under a city charter which authorized the common council to appoint assessors for the purpose of awarding damages to those through whose property a street might be opened, and to assess such damages on the property benefited, it was decided that the council were not empowered to levy a tax to pay for the other expenses of opening the street. Reed v. Toledo, 18 Ohio, 161. So a power to enact by-laws and ordinances to abate and remove nuisances will not authorize the passing of an ordinance to prevent nuisances, or to impose penalties for the creation thereof. Rochester v. Collins, 12 Barb. 559. A power to impose penalties for obstructions to streets would not authorize the like penalties for encroachments upon streets, where, under the general laws of the State, the offences are recognized as different and distinct. Grand Rapids v. Hughes, 15 Mich. 54. Authority to levy a tax on real and personal estate would not warrant an income tax, especially when such a tax is unusual in the State. Mayor of Savannah v. Hartridge, 8 Geo. 23. It will appear, therefore, that powers near akin to those expressly conferred are not, for that reason, to be taken by implication. And see Commonwealth v. Erie and N. E. Railroad Co., 27 Penn. St. 339. This rule has often been applied where authority has been asserted on behalf of a municipal corporation to loan its credit to corporations formed to construct works of internal improvement. See La Fayette v. Cox, 5 Ind. 38. A power to pass ordinances to prohibit the sale or giving away of intoxicating liquors in certain special cases is an implied exclusion of the power to prohibit the sale or giving away in other v. Common Council of Madison, 7 cases. State v. Ferguson, 33 N. H. Wis. 688; Mills v. Gleason, 11 Wis. |