and privileges, obligations and duties, of a town, and then proceeded to say, "If a part of its territory and inhabitants are separated from it by annexation to another, or by the erection of a new corporation, the former corporation still retains all its property, powers, rights, and privileges, and remains subject to all its obligations and duties, unless some new provision should be made by the act authorizing the separation." Windham v. Portland, 4 Mass. 389.

Decisions to the same effect have been made since that time in nearly all the States of the Union where such municipal subdivisions are known, until the reported cases have become quite too numerous for citation. Nor are such citations necessary, as they are all one way, showing that the principle in this country is one of universal application. Concede its correctness, and it follows that the old town, unless the legislature otherwise provides, continues to be seized of all its lands held in a proprietary right, continues to be the sole owner of all its personal property, is entitled to all its rights of action, is bound by all its contracts, and is subject to all the duties and obligations it owed before the act was passed effecting the separation.

Suppose that is so as applied to towns: still it is suggested that the same rule ought not to be applied to counties; but it is so obvious that the suggestion is without merit, that it seems unnecessary to give it any extended examination. County of Richland v. County of Lawrence, 12 Ill. 8.

Public duties are required of counties as well as of towns, as a part of the machinery of the State; and, in order that they may be able to perform those duties, they are vested with certain corporate powers; but their functions are wholly of a public nature, and they are at all times as much subject to the will of the legislature as incorporated towns, as appears by the best text-writers upon the subject and the great weight of judicial authority.

Institutions of the kind, whether called counties or towns, are the auxiliaries of the State in the important business of municipal rule, and cannot have the least pretension to sustain their privileges or their existence upon any thing like a contract between them and the legislature of the State, because there is not and cannot be any reciprocity of stipulation, and their objects and duties are utterly incompatible with every thing of the nature of compact. Instead of that, the constant practice is to divide large counties and towns, and to consolidate small ones, to meet the wishes of the residents, or to promote the public interests, as understood by those who control the action of the legislature. Opposition is sometimes manifested; but it is every where acknowledged that the legislature possesses the power to divide counties and towns at its pleasure, and to apportion the common property and the common burdens in such manner as to them may seem reasonable and equitable. School Society v. School Society, 14 Conn. 469; Bridge Co. v. East Hartford, 16 id. 172; Hampshire v. Franklin, 16 Mass. 76; North Hemstead v. Hemstead, 2 Wend. 109; Montpelier v. East

Montpelier, 29 Vt. 20; Sill v. Corning, 15 N. Y. 197; People v. Draper, id. 549; Waring v. Mayor, 24 Ala. 701; Mayor v. The State, 15 Md. 376; Ashby v. Wellington, 8 Pick. 524; Baptist So. v. Candia, 2 N. H. 20; Denton v. Jackson, 2 Johns. Ch. 320.

Political subdivisions of the kind are always subject to the general laws of the State; and the Supreme Court of Connecticut decided that he legislature of that State have immemorially exercised the power of lividing towns at their pleasure, and upon such division to apportion che common property and the common burdens as to them shall seem reasonable and equitable. Granby v. Thurston, 23 Conn. 419; Yarmouth v. Skillings, 45 Me. 142; Langworthy v. Dubuque, 16 Iowa, 273; Justices Opinion, 6 Cush. 577.

Such corporations are the mere creatures of the legislative will; and, inasmuch as all their powers are derived from that source, it follows that those powers may be enlarged, modified, or diminished at any time, without their consent, or even without notice. They are but subdivisions of the State, deriving even their existence from the legislature. Their officers are nothing more than local agents of the State; and their powers may be revoked or enlarged and their acts may be set aside or confirmed at the pleasure of the paramount authority, so long as private rights are not thereby violated. Russel v. Reed, 27 Penn. St. 170.

Civil and geographical divisions of the State into counties, townships, and cities, said Thompson, C. J., had its origin in the necessities and convenience of the people; but this does not withdraw these municipal divisions from the supervision and control by the State in matters of internal government. Proof of that is found in the fact that the legislature often exercises the power to exempt property liable to taxation, and in many other instances imposes taxes on what was before exempt, or increases the antecedent burdens in that behalf. It changes county sites, and orders new roads to be opened and new bridges to be built at the expense of the counties; and no one, it is supposed, disputes the exercise of such powers by the legislature. Burns v. Clarion County, 62 Penn. St. 425; People v. Pinkney, 32 N. Y. 393; St. Louis v. Russell, 9 Mo. 507.

Old towns may be divided, or a new town may be formed from parts of two or more existing towns; and the legislature, if they see fit, may apportion the common property and the common burdens, even to the extent of providing that a certain portion of the property of the old town shall be transferred to the new corporation. Bristol v. New Chester, 3 N. H. 521.

In dividing towns, the legislature may settle the terms and conditions on which the division shall be made. It may enlarge or diminish their territorial liabilities, may extend or abridge their privileges, and may impose new liabilities. Towns, says Richardson, C. J., are public corporations, created for purposes purely public, empowered to hold property, and invested with many functions and faculties to enable them to answer the purposes of their creation.

There must, in the nature of things, be reserved, by necessary impli cation, in the creation of such corporations, a power to modify them in such manner as to meet the public exigencies. Alterations of the kind are often required by public convenience and necessity; and we have the authority of that learned judge for saying that it has been the con stant usage, in all that section of the Union, to enlarge or curtail the power of towns, divide their territory, and make new towns, whenever the convenience of the public requires that such a change should be made.

Half a century ago, when that decision was made, the authority of the legislature to make such a division of a municipal corporation was deemed to be without doubt; and the same court decided that the power to divide the property of a municipal corporation is necessarily incident to the power to divide its territory and to create the new corporation. Darlington v. Mayor, 31 N. Y. 195; Clinton v. Railroad, 24 Iowa, 475; Layton v. New Orleans, 12 La. Ann. 516.

Cases doubtless arise where injustice is done by annexing part of one municipal corporation to another, or by the division of such a corporation and the creation of a new one, or by the consolidation of two or more such corporations into one of larger size. Examples illustrative of these suggestions may easily be imagined. (1.) Consolidation will work injustice where one of the corporations is largely in debt and the other owes nothing, as the residents in the non-indebted municipality must necessarily submit to increased burdens in consequence of the indebtedness of their associates. (2.) Like consequences follow where the change consists in annexing a part of one municipal corporation to another, in case the corporation to which those set off are annexed is greatly more in debt than the corporation from which they were set off. Hardships may also be suffered by the corporation from which a portion of its inhabitants, with their estates, may be set off, in case the corporation is largely in debt, as the taxes of those who remain must necessarily be increased in proportion as the polls and estates within the municipality are diminished. Even greater injustice may arise in cases where the legislature finds it necessary to circumscribe the jurisdiction of a county or town by dividing their territory, and creating new counties or towns out of the territory withdrawn from their former boundaries.

Legislative acts of the kind operate differently under different circumstances. Instances may be given where the hardship is much the greatest towards the new municipality, as where the great body of the property and improvements are left within the new boundaries of the old corporation. Other cases are well known where the hardship is much greater towards the old corporation, as where the newly-created subdivision embraces within its boundaries all the public buildings and most of the public improvements and the most valuable lands. Circumstances of the kind, with many others not mentioned, show beyond doubt that such changes in the subdivisions of a State often present

Injustice + ardship.

matters for adjustment involving questions of great delicacy and difficulty.

Allusion was made to this subject by the Supreme Court of New Hampshire in the case to which reference has already been made. 3 N. H. 534. Speaking of the power to divide towns, the court in that case say that the power in that regard is strictly legislative; and that the power to prescribe the rule by which a division of the property of the old town shall be divided is incident to the power to divide the territory, and is in its nature purely legislative. No general rule can be prescribed by which an equal and just decision in such cases can be made. Such a division, say the court in that case, must be founded upon the circumstances of each particular case; and in that view the court here entirely concurs. Powers v. Commissioners of Wood County, 8 Ohio St. 290; Shelby County v. Railroad, 5 Bush, 228; Olney v. Harvey, 50 Ill. 455.

Regulation upon the subject may be prescribed by the legislature; but, if they omit to make any provision in that regard, the presumption must be that they did not consider that any legislation in the particular case was necessary. Where the legislature does not prescribe any such regulations, the rule is that the old corporation owns all the public property within her new limits, and is responsible for all debts contracted by her before the act of separation was passed. Old debts she must pay, without any claim for contribution; and the new subdivision has no claim to any portion of the public property except what falls within her boundaries, and to all that the old corporation has no claim. North Hemstead v. Hemstead, 2 Wend. 134; Dil. on Mun. Corp., sect. 128; Wade v. Richmond, 18 Gratt. 583; Higginbotham v. Com., 25 id. 633.

Tested by these considerations, it is clear that there is no error in the record.

Decree affirmed.

JOHNSON ET AL. v. CITY OF SAN DIEGO.

1895. 109 California, 468.1

By virtue of the act of the legislature of March 19, 1889, and of a vote at an election held thereunder, a portion of the territory formerly embraced within the corporate limits of the city of San Diego was excluded therefrom. The said act of 1889, as interpreted by the court, also provided that the segregated territory (which was known as the Coronado beach) should, after exclusion, be liable for its pro rata share of the indebtedness of the original municipal corporation contracted prior to such exclusion.

In 1893 (Statutes 1893, p. 536) the legislature passed an act pro

1 Statement abridged from opinion. Arguments omitted. -ED.

viding for "the adjustment, settlement, and payment of any indebted ness existing against any city or municipal corporation at the time of exclusion of territory therefrom and the division of property thereof."

Under this act, any territory which has been or shall be " excluded from any municipal corporation shall not be subject to the payment of any indebtedness existing at the time of exclusion, if the court find that the value of the property belonging to said municipal corporation, and which remains within the boundaries thereof after such exclusion, exceeds the value of municipal property situated in such excluded territory, and also exceeds the pro rata portion of the indebtedness of the municipal corporation due from such excluded territory as shown by the assessment made immediately preceding such exclusion. Plaintiffs availed themselves of the provisions of this act to have the court determine what proportion, if any, of the bonded indebtedness of San Diego was properly chargeable against the excluded territory. Under certain findings of fact, and in strict accord with the dictates of the statute, the court adjudged that there was nothing due or to become due from the excluded territory to the city.

The city of San Diego appealed from the judgment. William H. Fuller and Clarence L. Barber, for appellant. Gibson & Titus, and Samuel M. Shortridge, for respondent. HENSHAW, J. [After stating the case.] The chief contention of the defendant, raised upon demurrer, pressed in its motion for a nonsuit and urged against the judgment, may be thus stated: The property owners of the city and the property owners of the excluded territory, when in accordance with the permissive act of the legislature (Stats. 1889, p. 356) they elected to segregate Coronado beach, did so under a contract expressed in the act itself, by which the property owners of the excluded territory were allowed to remove their land from the jurisdiction of the city with the understanding that they should continue to pay their pro rata share of the municipal debts existing at the time of the exclusion; that the rights of the city vested under this contract cannot be destroyed or impaired by subsequent legislation, and that therefore to the parties to this controversy the statute of 1893 has no applicability.

The question that is left for consideration is that of the power of the legislature to change and readjust the burden of such an indebtedness, after having in the act of separation declared in what manner it should be borne.

Municipal corporations in their public and political aspect are not only creatures of the state, but are parts of the machinery by which the state conducts its governmental affairs. Except, therefore, as restrained by the constitution, the legislature may increase or diminish the powers of such a corporation may enlarge or restrict its territorial jurisdiction, or may destroy its corporate existence entirely. Bay's Cooley: "Restraints on the legislative power of control must be