repugnant to, or inconsistent with the proper purposes for which the corporation was created, that may furnish a ground why it may not be compelled to execute it. But that will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but it will simply require a new trustee to be substituted by the proper court, possessing equity jurisdiction, to enforce and perfect the objects of the trust."

Grants not sustained as being foreign to the objects for which public corporations are organized. The reasoning which sustains the validity of the grants referred to in the preceding paragraph have as effectually prevented public corporations from accepting and administering bequests for objects foreign to the purposes for which they are created and in which they have no interest in their capacity as a public corporation.20

§ 720. Power to acquire in the capacity of a private corporation. The decisions recognize the fact that a public corportion may at times assume for certain purposes the character of a private corporation.30 The doctrine is wrong but the power to act in such a capacity has been affirmatively decided in some cases. Where this legal condition exists, the public corporation may, by the exercise of an express or an assumed power, acquire property in this capacity 1 and when this is done it will be treated as a private corporation and subject to all the rules of law which regulate rights and liabilities as devolving upon a private individual.32

29 Vidal v. City of Philadelphia, 2 How. (U. S.) 128; Perin v. Carey, 24 How. (U. S.) 465; South Newmarket Methodist Seminary v. Peaslee, 15 N. H. 317; Sargent v. Cornish, 54 N. H. 18; Town of North Hempstead v. Town of Hempstead, 2 Wend. (N. Y.) 109; Jackson v. Hartwell, 8 Johns. (N. Y.) 330; Hornbeck v. Westbrook, 9 Johns. (N. Y.) 73. But see Attorney General v. Town of Dublin, 38 N. H. 459, where the court held that "No one can entertain a doubt that to maintain the institutions of religion is an object quite consistent

with the general purpose for which towns are created, and that towns have at least an indirect interest in promoting religion within their limits."

30 City of New Orleans v. Heirs of Guillotte, 12 La. Ann. 818; Town of New Shoreham v. Ball, 14 R. I. 566.

31 Adams v. Natchez, J. & C. R. Co., 76 Miss. 714, 25 So. 667; People v. City of Albany, 4 Hun (N. Y.) 675; Scalf v. Collin County, 80 Tex. 514, 16 S. W. 314.

32 Touchard v. Touchard, 5 Cal. 306; San Francisco Gas Co. v. City

35

longs to the particular locality and is vested in the people of that locality as a necessary resultant of the idea held by some courts that local communities in this country, independent of the general government, have the inherent right of local self-government." Property may be acquired by a public corporation in its local capacity, the disposal and regulation of which will be subject to the principles of law based upon acquirement and use of property for a public purpose. When a public corporation acquires property in its capacity as a local agent of government, the public use which attaches to property secured in this way cannot be changed or divested. This principle does not prevent, however, the sovereign.

36

35 People v. Common Council of Detroit, 28 Mich. 228.

36 Hoadley's Adm'rs v. City of San Francisco, 124 U. S. 639; Grogan v. City of San Francisco, 18 Cal. 590; City of Terre Haute v. Terre Haute Waterworks Co., 94 Ind. 305; Mt. Hope Cemetery v. City of Boston, 158 Mass. 509; People v. Common Council of Detroit, 28 Mich. 228; Matthews v. City of Alexandria, 68 Mo. 115; Spaulding v. Town of Andover, 54 N. H. 38; Still v. Village of Lansingburgh, 16 Barb. (N. Y.) 107; People v. Ingersoll, 58 N. Y. 1. Where the court say: "In political and governmental matters the municipalities are the representatives of the sovereignty of the state, and auxiliary to it; in other matters, relating to property rights and pecuniary obligations, they have the attributes and the distinctive legal rights of private corporations, and may acquire property, create debts, and sue and be sued as other corporations; and in the borrowing of money and incurring pecuniary obligations in any form, as well as in the buying and selling of property within the limits of the corporate powers conferred, they neither represent nor bind the state." And

also add that municipal corporations hold all such property as trustees for the inhabitants within the territorial limits of the corporation whether taxpayers or not and that moneys obtained through the pledg ing of public credit or by the levy of taxes are a trust fund for public

use.

Webb v. City of New York, 64 How. Pr. (N. Y.) 10; Milam County v. Bateman, 54 Tex. 153; State v. Woodward, 23 Vt. 92; Roper v. McWhorter, 77 Va. 214; Town of Milwaukee v. City of Milwaukee, 12 Wis. 93. "The difficulty about the question is, to distinguish between the corporation as a civil institution or delegation of merely political powers and as an ideal being endowed with the capacity to acquire and hold property for corporate or other purposes. In its political or governmental capacity, it is liable at any time to be changed, modified or destroyed by the legislature; but in its capacity of owner of property, designed for its own, or the exclusive use and benefit of its inhabitants, its vested rights of property are no more the subject of legislative interference or control, without the consent of the corporators, than those of a merely

from changing the trustee or in regulating or changing its use so long as such action does not impair or destroy the rights which a community as a whole may have in it.

§ 721. The location of property acquired.

The power of the public corporation to acquire property being so limited and restricted, the location of that which it can legally acquire is necessarily limited. The rule holds that such a corporation has no power in its capacity as a public one to acquire property outside the limits of its own territorial organization.37 The exception to this rule being that where it is necessary to complete a park, water or sewage system,38 erect a pest house or contagious hospital, to acquire property outside of its own limits, this may be done.

The limition with respect to location does not apply in those cases where the corporation may have legally acquired property in an assumed capacity of a private corporation or that of a trustee. The exercise of the power is not restricted in these cases to its organized limits.3

39

Its

private corporation or person. rights of property, once acquired, though designed and used to aid it in the discharge of its duties as a local government, are entirely distinct and separate from its powers as a political or municipal body." But see Warren County Sup'rs v. Patterson, 56 Ill. 111; Beach v. Haynes, 12 Vt. 15; Konrad v. Rogers, 70 Wis. 492.

37 Thompson v. Moran, 44 Mich 602; Town of Concord v. Town of Boscawen, 17 N. H. 465; Town of North Hempstead v. Town of Hempstead, 2 Wend. (N. Y.) 109; Riley v. City of Rochester, 9 N. Y. (5 Seld.) 64, reversing 13 Barb. 321.

38 Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Thompson v. Moran, 44 Mich. 602; Lester v. City of Jackson, 69 Miss. 887, 11 So. 114; Chambers v. City of St. Louis, 29 Mo. 543; Hafner v. City of St.

Louis, 161 Mo. 34, 61 S. W. 632. A city can acquire land outside its limits for wharf purposes under general power given by Rev. St. 1845, c. 34, § 1, to hold, purchase and have such real property as its purposes may require. Choate v. City of Buffalo, 39 App. Div. 379, 57 N. Y. Supp. 383; In re City of New York, 99 N. Y. 569; Seebold v. Shitler, 34 Pa. 133; Newman v. Ashe, 68 Tenn. (9 Baxt.) 380; Minnesota & M. Land & Ins. Co. v. City of Billings, 111 Fed. 972; Cochran v. Village of Park Ridge, 138 III. 295, 27 N. E. 939. See, also, §§ 441, 458, ante.

39 McDonogh's Ex'rs v Murdoch, 15 How. (U. S.) 367; Chambers v. City of St. Louis, 29 Mo. 543. The greater part of the estate of Bryan Mullanphy devised to St. Louis in trust for the relief of poor immigrants consisted of lands in St.

§ 722. Manner of acquirement; by purchase.

The right of a public corporation to acquire property having been established, the manner of this acquirement is the next consideration and in all respects the same rules apply as to the acquirement of property by a private person or corporation. The usual mode for the acquisition of public property is by purchase and sale.40

(a) Acquirement by lease. In many cases the purchase of property is considered by the authorities inadvisable or the purchase of