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And for like reasons a by-law is void which abridges the rights and privileges conferred by the general laws of the State, unless authority therefor can be pointed out in the corporate charter.1 And if it assumes to be a police regulation, but deprives a party of the use of his property without regard to the public good, under the pretence of the preservation of health, when it is manifest that such is not the object and purpose of the regulation, it will be set aside as a clear and direct infringement of the right of property without any compensating advantages.2

nature of the case a right could be vested. That a right to regulate does not include a right to prohibit, see also Ex parte Burnett, 30 Ala. 461; Austin v. Murray, 16 Pick. 121. And see Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 N. Y. 611.

1 Dunham ». Trustees of Rochester, 5 Cow. 462; Mayor, &c. of New York v. Nichols, 4 Hill, 209.

By a by-law of the town of Charlestown all persons were prohibited, without license from the selectmen, from burying any dead body brought into town on any part of their own premises or elsewhere within the town. By the court, Wilde, J.: "A by-law to be valid must be reasonable; it must be legi, fidei, rationi consona. Now if this regulation or prohibition had been limited to the populous part of the town, and were made in good faith for the purpose of preserving the health of the inhabitants, which may be in some degree exposed to danger by the allowance of interments in the midst of a dense population, it would have been a very reasonable regulation. But it cannot be pretended that this by-law was made for the preservation of the health of the inhabitants. Its restraints extend many miles into the country, to the utmost limits of the town. Now such an unnecessary restraint upon the right of interring the dead we think essentially unreasonable. If Charlestown may lawfully make such a by-law as this, all the towns adjoining Boston may impose similar restraints, and consequently all those who die in Boston must of necessity be interred within the precincts of the city. That this would be prejudicial to the health of the inhabitants, especially in the hot seasons of the year, and when epidemic diseases prevail, seems to be a well-established opinion. Interments, therefore, in cities and large populous towns, ought to be discountenanced, and no obstacles should be permitted to the establishment of cemeteries at suitable places in the vicinity. The by-law in question is, therefore, an unreasonable restraint upon many of the citizens of Boston, who are desirous of burying their dead without the city, and for that reason void. And this by-law would seem to be void for another reason. A by-law for the total restraint of one's right is void; as if a man be barred of the use of his land. Com. Dig. By-Law, c. 4. The land where the bodies were interred was the land of the Catholic Bishop of Boston, purchased by him in 1830, and then consecrated as a Catholic buryingground, and has ever since been used as such, for the interment of Catholics dying in Charlestown and Boston. It is true the by-law does not operate to the total restraint or deprivation of the bishop's right, but it is a total restraint of the

Delegation of Municipal Powers.

Another and very important limitation which rests upon municipal powers is, that they shall be executed by the municipality itself, or by such agencies or officers as the statute has pointed out. So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates or of any other authority. So strictly is this rule applied, that when a city charter authorized the common council of the city to make by-laws and ordinances ordering and directing any of the streets to be pitched, levelled, paved, flagged, &c., or for the altering or repairing the right of the burying the dead in Boston, for which a part of the burying-ground was appropriated. The illegality of the by-law is the same, whether it may deprive one of the use of a part or the whole of his property; no one can be so deprived, unless the public good requires it. And the law will not allow the right of private property to be invaded under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation. Now we think this is manifest from the case stated in regard to the by-law in question. It is a clear and direct infringement of the right of property, without any compensating advantages, and not a police regulation made in good faith for the preservation of health. It interdicts, or in its operation necessarily intercepts, the sacred use to which the Catholic burying-ground was appropriated and consecrated, according to the forms of the Catholic religion; and such an interference, we are constrained to say, is wholly unauthorized and most unreasonable." Austin v. Murray, 16 Pick. 125. So in Wreford v. People, 14 Mich. 41, the common council of Detroit, under a power granted by statute to compel the owners and occupants of slaughter-houses to cleanse and abate them whenever necessary for the health of the inhabitants, assumed to pass an ordinance altogether prohibiting the slaughtering of animals within certain limits in the city; and it was held void. See further, State v. Jersey City, 5 Dutch. 170. Upon the whole subject of municipal by-laws, see Angell & Ames on Corp. c. 10; Grant on Corp. 76 et seq. See also Redfield on Railways (3d ed.), vol. 1, p. 88. The subject of the reasonableness of by-laws was considered at some length in People v. Medical Society of Erie, 24 Barb. 570, and Same v. Same, 32 N. Y. 187. In the first case, it was held that a regulation subjecting a member of the County Medical Society to expulsion, for charging less than the established fees, was unreasonable and void. In the second, it was decided that where a party had the prescribed qualifications for admission to the society, he could not be refused admission, on the ground of his having previous to that time failed to observe the code of medical ethics prescribed by the society for its members. Municipal by-laws may impose penalties on parties guilty of a violation thereof, but they cannot impose forfeiture of property or rights, without express legislative authority. State v. Ferguson, 33 N. H. 430; Phillips v. Allen, 41 Penn. St. 481.

same," within such time and in such manner as they may prescribe under the superintendence and direction of the city superintendent," and the common council passed an ordinance directing a certain street to be pitched, levelled, and flagged," in such manner as the city superintendent, under the direction of the com-. mittee on roads of the common council, shall direct and require," the ordinance was held void, because it left to the city superintendent and the committee of the common council the decision which, under the law, must be made by the council itself. The trust was an important and delicate one, as the expenses of the improvement were, by the statute, to be paid by the owners of the property in front of which it was made. It was in effect a power of taxation, which is the exercise of sovereign authority; and nothing short of the most positive and explicit language could justify the court in holding that the legislature intended to confer such a power on a city officer or committee. The statute in question not only contained no such language, but, on the contrary, clearly expressed the intention of confiding the exercise of this power to the common council, the members of which were elected by and responsible to those whose property they were thus allowed to tax.1

This restriction, it will be perceived, is the same which rests upon the legislative power of the State, and it springs from the same reasons. The people in the one case in creating the legislative department, and the legislature in the other in conferring the corporate powers, have selected the depository of the power which they have designed should be exercised, and in confiding it to such depository have impliedly prohibited its being exercised by any other agency. A trust created for any public purpose cannot be assignable at the will of the trustee.2

1

524.

4

Thompson v. Schermerhorn, 6 N. Y. 92. See also Smith v. Morse, 2 Cal.

* The charter of Washington gave the corporation authority "to authorize the drawing of lotteries, for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; provided that the amount raised in each year shall not exceed ten thousand dollars. And provided also that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved by him.” Per Marshall, Ch. J. speaking of this authority: "There is great weight in the argument that it is a trust, and an important trust, confided to the corporation itself, for the purpose of effecting important improvements in the city, and ought,

Equally incumbent upon the State legislature and these municipal bodies is the restriction that they shall adopt no irrepealable legislation. No legislative body can so part with its powers by any proceeding as not to be able to continue the exercise of them. . It can and should exercise them again and again, as often as the public interests require.1 Such a body has no power, even by contract, to control and embarrass its legislative powers and duties. On this ground it has been held, that a grant of land by a municipal corporation, for the purposes of a cemetery, with a covenant for quiet enjoyment by the grantee, could not preclude the corporation, in the exercise of its police powers, from prohibiting any further use of the land for cemetery purposes, when the advance of population threatened to make such use a public nuisance.2 So when "a lot is granted as a place of deposit for gunpowder, or other purpose innocent in itself at the time; it is devoted to that purpose till, in the progress of population, it becomes dangerous to the property, the safety, or the lives of hundreds; it cannot be that the mere form of the grant, because the parties choose to make it particular instead of general and absolute, should prevent the use to which it is limited being regarded and treated as a nuisance, when it becomes so in fact. In this way the legislative powers essential to the comfort and preservation of populous communities might be frittered away into therefore, to be executed under the immediate authority and inspection of the corporation. It is reasonable to suppose that Congress, when granting a power to authorize gaming, would feel some solicitude respecting the fairness with which the power should be used, and would take as many precautions against its abuse as was compatible with its beneficial exercise. Accordingly, we find a limitation upon the amount to be raised, and on the object for which the lottery may be authorized. It is to be for any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; and it is subjected to the judgment of the President of the United States. The power thus cautiously granted is deposited with the corporation itself, without an indication that it is assignable. It is to be exercised like other corporate powers, by the agents of the corporation under its control. While it remains where Congress has placed it, the character of the corporation affords some security against its abuse, - some security that no other mischief will result from it than is inseparable from the thing itself. But if the management, control, and responsibility may be transferred to any adventurer who will purchase, all the security for fairness which is furnished by character and responsibility is lost." Clark v. Washington, 12 Wheat. 54.

1 East Hartford v. Hartford Bridge Co., 10 How. 535.

2 Brick Presbyterian Church v. City of New York, 5 Cow. 540.

perfect insignificance. To allow rights thus to be parcelled out and secured beyond control would fix a principle by which our cities and villages might be broken up. Nuisances might and undoubtedly would be multiplied to an intolerable extent."1

And on the same ground it is held, that a municipal corporation, having power to establish, make, grade, and improve streets, does not, by once establishing the grade, preclude itself from changing it as the public needs or interest may seem to require, notwithstanding the incidental injury which must result to those individuals who have erected buildings with reference to the first grade. So a corporation having power under the charter to establish and regulate streets cannot under this authority, without explicit legislative consent, permit individuals to lay down a railway in one of its streets, and confer privileges exclusive in their character and designed to be perpetual in duration. In a case where this was attempted, it has been said by the court: "The corporation has the exclusive right to control and regulate the use of the streets of the city. In this respect, it is endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts for which the power is conferred. An ordinance regulating a street is a legislative act, entirely beyond the control of the judicial power of the State. But the resolution in question is not such an act. Though it relates to a street, and very materially affects the mode in which that street is to be used, yet in its essential features it is a contract. Privileges exclusive in their nature and designed to be perpetual in their duration are conferred. Instead of regulating the use of the street, the use itself to the extent specified in the resolution is granted to the associates. For what has been deemed an adequate consideration, the corporation has assumed to surrender a portion of their municipal authority, and has in legal effect agreed with the defendants that, so far as they may have occasion to use the street for the purpose of constructing and operating their railroad, the right to regulate

1 Coats v. Mayor, &c. of New York, 7 Cow. 605. See also Davis v. Mayor, &c. of New York, 14 N. Y. 506; Attorney-General v. Mayor, &c. of New York, 3 Duer, 119; State v. Graves, 19 Md. 51; Gozzle v. Georgetown, 6 Wheat, 597.

Callender v. Marsh, 1 Pick. 417; O'Connor v. Pittsburg, 18 Penn. St. 187; Smith v. Washington, 20 How. 135; Skinner v. Hartford Bridge Co., 29 Conn. 523; Graves v. Otis, 2 Hill, 466; La Fayette v. Bush, 19 Ind. 326; Creal v. Keokuk, 4 Green (Iowa), 47; Roberts v. Chicago, 26 Ill. 249. And see post, ch. 15.

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