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become such vested rights as against the State that they 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.2 If the legislative action in these cases operates injuriously to individuals, the remedy is not with the courts. They have no power to interfere, and the people must be looked to, to right through the ballot-box all these wrongs.3 This is the general rule; and the exceptions to it are not numerous, and will be indicated hereafter.

1 This principle was recognized by the several judges in Dartmouth College ". 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 Ill. 30; Brighton v. Wilkinson, 2 Allen, 27; Reynolds v. Baldwin, 1 La. An. 162; Police Jury v. Shreveport, 5 La. An. 665.

"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 affected, — 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. An. 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; Bristol v. New Chester, 3 N. H. 524. But it seems that this 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 Greenl.. 112. In the latter case, it was held that the apportionment 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. An. 515, is contra. See also Borough of Dunmore's Appeal, 52 Penn. St. 374, which in principle seems to accord with the Louisiana case.

"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

Powers of Public Corporations.

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. 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 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.

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1 2 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 v. Des Moines, 19 Iowa, 212; Beaty v. Knowler, 4 Pet. 162; Mills v. Gleason, 11 Wis. 470. In this last case, it was held that these corporations had implied power to borrow money for corporate purposes. And see also Ketcham v. Buffalo, 14 N. Y. 356.

* Willcock on Municipal Corporations, tit. 769.

property for corporate purposes, 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.1 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 to charters of private incorporation.2

1

Angell & Ames on Corp. §§ 111, 239; 2 Kyd on Corp. 102; State v. Ferguson, 33 N. H. 430.

2

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 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 cases. State v. Ferguson, 33 N. H. 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." See also Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 N. Y. 611; Douglass v. Placerville, 18 Cal. 643; Mount Pleasant v. Breeze, 11 Iowa, 399; Hopple v. Brown, 13 Ohio, N. S. 311; Lackland v. Northern Missouri Railroad Co., 31 Mo. 180; Smith v. Morse, 2 Cal. 524; Bennett v. Borough of Birmingham, 31 Penn. St. 15.

It must follow that, if in any case a party assumes to deal with a corporation on the supposition that it possesses powers which it does not, or to contract in any other manner than is permitted by the charter, he will not be permitted, notwithstanding he may have complied with the undertaking on his part, to maintain an action against the corporation based upon its unauthorized action. . Even if a party is induced to enter upon work for a corporation by the false representations of corporation officers, that certain preliminary action had been taken on which the power of the corporation to enter upon the work depended, these false representations cannot have the effect to validate a contract otherwise void, and can afford no ground of action against the corporation; but every party contracting with it must take notice of any want of authority which the public records would show.1

The common council of Williamsburg had power to open, regulate, grade, and pave streets, but only upon petition signed by one third of the persons owning lands within the assessment limits. A party entered into a contract with the corporation for improving a street upon the false representations of the council that such a petition had been presented. Held, that the provision of the law being public, and all the proceedings leading to a determination by the council to make a particular improvement being matters of record, all persons were chargeable with notice of the law and such proceedings; and that, notwithstanding the false representations, no action would lie against the city for work done under the contract. Swift v.. Williamsburg, 24 Barb. 427. "If the plaintiff can recover on the state of facts he has stated in his complaint, the restrictions and limitations which the legislature sought to impose upon the powers of the common council will go for nothing. And yet, these provisions are matters of substance, and were designed to be of some service to the constituents of the common council. They were intended to protect the owners of lands and the tax-payers of the city, as well against the frauds and impositions of the contractors who might be employed to make local improvements, as against the illegal acts of the common council themselves in employing the contractors. But if the plaintiff can recover in this action, of what value or effect are all these safeguards? If the common council desire to make a local improvement, which the persons to be benefited thereby, and to be assessed therefor, are unwilling to have made, the consent of the owners may be wholly dispensed with, according to the plaintiff's theory. The common council have only to represent that the proper petition has been presented and the proper proceedings have been taken, to warrant the improvement. They then enter into the contract. The improvement is made. Those other safeguards for an assessment of the expenses and for reviewing the proceedings may or may not be taken. But when the work is completed and is to be paid for, it is found that the common council have no authority to lay any assessment or collect a dollar from the property benefited by the improvement. The contractor then brings his action, and recovers from the city the damages he

Many corporations exist in England by prescription, by which is understood that corporate powers have been exercised from time immemorial, of which it is impossible to show the commencement by any particular charter or act of Parliament, and the law presumes that such exercise of powers has been rightful, and that a charter or act of Parliament conferring the corporate powers once existed, but has been lost by such accidents as length of time may produce.1 The same presumption in support of corporate rights has been judicially declared in this country,2 with this difference, that in analogy to the statute of limitations, it is held that an uninterrupted and unquestioned user of the corporate franchise for twenty years, with the assent of the government, would furnish a conclusive presumption of a grant from the State of the corporate rights exercised.3 And in these cases we apprehend the same rule as to construction of powers would apply. has sustained by the failure of the city to pay him the contract price. The ground of his action is the falsity of the representations made to him. But the truth or falsity of such representations might have been ascertained by the party with the use of the most ordinary care and diligence. The existence of the proper petition, and the taking of the necessary initiatory steps to warrant the improvement, were doubtless referred to and recited in the contract made with the plaintiff. And he thus became again directly chargeable with notice of the contents of all these papers. It is obvious that the restrictions and limitations imposed by the law cannot be thus evaded. The consent of the parties interested in such improvements cannot be dispensed with; the responsibility, which the conditions precedent created by the statute impose, cannot be thrown off in this manner. For the effect of doing so is to shift entirely the burden of making these local improvements, to relieve those on whom the law sought to impose the expense, and to throw it on others who are not liable either in law or morals.”

So where the charter of Detroit provided that no public work should be contracted for or commenced until an assessment had been levied to defray the expense, and that no such work should be paid or contracted to be paid for, except out of the proceeds of the tax thus levied, it was held, that the city corporation had no power to make itself responsible for the price of any public work, and that such work could only be paid for by funds actually in the hands of the city treasurer, provided for the specific purpose. Goodrich v. Detroit, 12 Mich. 279.

11 Kyd on Corp. 14; Angell & Ames on Corp. §§ 69–71.

* Dillingham v. Snow, 5 Mass. 547; Stockbridge v. West Stockbridge, 12 Mass. 400; New Boston v. Dunbarton, 12 N. H. 409; Same case, 15 N. H. 201; Watkins v. Peck, 13 N. H. 360; Wallace v. Fletcher, 10 Fost. 434; Bow v. Allenstown, 34 N. H. 365; Robie v. Sedgwick, 35 Barb. 326.

3 Watkins v. Peck, 13 N. H. 360; Wallace v. Fletcher, 10 Fost. 434; Bow v. Allenstown, 34 N. H. 374. The other cases referred to in the preceding note were cases of the proof of corporations by presumptions and reputation.

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