power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city; they belong to the city. The corporation and its corporators, the citizens, are alone interested in them; the outside public or people of the State at large have no interest in them, as they have in the streets of the city, which are public highways.

"The donee of such a power, whether the donee be an individual or a corporation, takes it with the understanding—for such are the requirements of the law in the execution of the powerthat it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures will be taken, in the execution of it, to guard against accidents to persons lawfully using the highway at the time. He is individually bound for the performance of these obligations; he cannot accept the power divested of them, or rid himself of their performance by executing them through a third person as his agent. He may stipulate with the contractor for their performance, as was done by the city in the present case, but he cannot thereby relieve himself of his personal liability, or compel an injured party to look to his agent, instead of himself, for damages." And in answer to the objection that the contract was let to the lowest bidder, as the law required, it is shown that the provision of law to that effect was introduced for the benefit of the city, to protect it against frauds, and that it should not, therefore, relieve it from any liability.1

See also Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Grant v. City of Brooklyn, 41 Barb. 381; City of Buffalo v. Holloway, 14 Barb. 101, and 7 N. Y. 493; Lloyd v. Mayor, &c. of New York, 5 N. Y. 369; Delmonico v. Mayor, &c. of New York, 1 Sandf. 222; Barton v. Syracuse, 37 Barb. 292. For further illustration of the rules of liability to which municipal corporations are subject for the negligent discharge of corporate duties or the improper construction of corporate works, see Wallace v. Muscatine, 4 Greene (Iowa), 373; Creal v. Keokuk, Ibid. 47; Cotes v. Davenport, 9 Iowa, 227; Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, Ibid. 172; Munn v. Pittsburg, 40 Penn. St. 364; Pekin v. Newell, 26 Ill. 320; Weightman v. Washington, 1 Black, 39; Kavanaugh v. Brooklyn, 38 Barb. 232; Wendell v. Troy, 39 Barb. 329; Ross v.

We have not deemed it important, in considering the subject embraced within this chapter, to discuss the various questions which might be suggested in regard to the validity of the proceedings by which it is assumed in any case that a municipal corporation has become constituted. These questions are generally questions between the corporators and the State, with which private individuals have no concern. In proceedings where the question whether a corporation exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the State as such. Such a question should be raised by the State itself, by quo warranto or other direct proceeding.1 And the rule, we apprehend, would be no different, if the constitution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State; and private parties could not enter upon any question of regularity. And the State itself may justly be precluded, on the principle of estoppel, from raising such an objection, where there has been long acquiescence and recognition.2

Madison, 1 Ind. 281; Mayor, &c. of New York v. Bailey, 2 Denio, 433; Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Wheeler v. City of Worcester, 10 Allen, 591; Burnham v. Boston, Ibid. 290; Boom v. City of Utica, 2 Barb. 104; Martin v. Mayor, &c. of Brooklyn, 1 Hill, 545; Howell v. Buffalo, 15 N. Y. 512; Lacour v. Mayor, &c. of New York, 3 Duer, 406.

1 State v. Carr, 5 N. H. 367; President, &c. of Mendota v. Thompson, 20 Ill. 200; Hamilton v. President, &c. of Carthage, 24 Ill. 22. These were prosecutions by municipal corporations for recovery of penalties imposed by by-laws, and where the plea of nul tiel corporation was interposed and overruled.

In People v. Maynard, 15 Mich. 470, where the invalidity of an act organizing a county, passed several years before, was suggested on constitutional grounds, Campbell, J., says: "If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty. But inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recognized as valid by all parties interested, it cannot now be disturbed. Even in private associations the acts of parties interested may often estop them from relying on legal objections, which might have availed them if not waived. But in public affairs, where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. What

ever may be the rights of individuals before such general acquiescence, the corporate standing of the community can no longer be open to question. See Rumsey v. People, 19 N. Y. 41; and Lanning v. Carpenter, 20 N. Y. 474, where the effect of the invalidity of an original county organization is very well considered in its public and private bearings. There have been direct legislative recognitions of the new division on several occasions. The exercise of jurisdiction being notorious and open in all such cases, the State as well as county and town taxes being all levied under it, there is no principle which could justify any court, at this late day, in going back to inquire into the regularity of the law of 1857."

CHAPTER IX.

PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITUTION OF THE UNITED STATES.

As the government of the United States was one of enumerated powers, it was not deemed important by the framers of its Constitution that a bill of rights should be incorporated among its provisions. If, among the powers conferred, there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and the duty of the government to protect and defend, and to insure which is the sole purpose of bills of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any such powers, since the mere failure to confer them would leave all such powers beyond the sphere of its constitutional authority. And, as Mr. Hamilton argued, it might seem even dangerous to do so. "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."1

It was also thouglit that bills of rights, however important 1 Federalist, No. 84.

1

under a monarchical government, were of no moment in an instrument framed by the people for their own government, by means of agencies selected by the popular choice, and subject to frequent change by popular action. "It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right, assented to by Charles the First, in the beginning of his reign. Such also was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament, called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and, as they retain everything, they have no need of particular reservations. WE, THE PEOPLE OF THE UNITED STATES, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' This is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government."1

Reasoning like this was specious, but it was not satisfactory to many of the leading statesmen of that day, who believed that "the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove." 2 And these governing powers will be no less disFederalist, No. 84.

Jefferson's Works, vol. 3, 201.