OF MUNICIPAL CORPORATIONS BY JOHN F. DILLON, LL. D., THE CIRCUIT JUDGE OF THE UNITED STATES FOR THE EIGHTH JUDICIAL CIRCUIT, OF THE JUSTICES OF THE SUPREME COURT OF IOWA SECOND EDITION— REVISED AND ENLARGED VOL. II. NEW-YORK JAMES COCKCROFT & CO 1873 Entered, according to Act of Congress, in the year 1873, By JOHN F. DILLON, In the office of the Librarian of Congress, at Washington. CHAPTER XV. CORPORATE PROPERTY, 8427. We have next to consider the powers of municipal corporations relating to property. The history of the capacity of such corporations to acquire and hold property is so clearly given by Mr. Justice Campbell, in his learned judgment, in the great McDonough Will Case,' in the Supreme Court of the United States, that it fittingly serves as an introduction to the more special discussion and treatment of the subject. Civil Law: "The Roman jurisprudence," he observes, "seems originally to have denied to cities a capacity to inherit, or even to take by donation or legacy. They were treated as composed of uncertain persons, who could not perform the acts of volition and personalty involved in the acceptance of a succession. The disability was removed by the Emperor Adrian in regard to donations and legacies, and soon legacies ad ornatum civitatis and ad honorem civitatis became frequent. Legacies for the relief of the poor, aged, and helpless, and for the education of children, were ranked of the latter class. This capacity was enlarged by the Christian Emperors, and after the time of Justinian there was no impediment. Donations for charitable uses were then favored; and this favorable legislation was diffused over Europe by the canon law, so that it became the common law of Christendom." § 428. Subsequent Modification in Europe.-"When the power of the clergy began to arouse the jealousy of the temporal authority, and it became a policy to check their influence and wealth-they being, for the most part, the 1 Extent of legislative authority over the property of municipal and public corporations. Ante, chap. IV. * McDonough Will Case, 15 How. 367, 403, 1853. The nature of Mr. McDonough's will, in favor of the cities of New Orleans and Baltimore, willi be found stated further on in this chapter managers of the property thus appropriated-limitations upon the capacity of donors to make such gifts were first imposed. These commenced in England in the time of Henry III.; but the learned authors of the history of the corporations of that realm affirm, that cities were not included in them--perhaps upon the ground that the grants were for the public good; and, although the same effect was produced by the grant in perpetuity to the inhabitants,' the same practical inconvenience did not arise from it, nor was it at the time considered a mortmain." 'A'century later there was a direct inhibition upon grants to cities, boroughs, and others, which have perpetual commonalty,' and others which have offices perpetual,' and, therefore, 'be as perpetual as people of religion.' The English statutes of mortmain forfeit to the king or superior lord the estates granted, which right is to be exerted by entry; a license, therefore, from the king severs the forfeiture. The legal history of the continent on this subject does not materially vary from that of England. The same alternations of favor, encouragement, jealousy, restraint, and prohibition, are discernible. The Code Napoleon, maintaining the spirit of the ordinances of the monarchy, in 1731, 1749, 1762, provides that donations, during life or by will, for the benefit of hospitals of the poor of a commune, or of stablishments of public utility, shall not take effect, except so far as they shall be authorized by an ordinance of the gov ernment.' The learned Savigny, writing for Germany, says: 'Modern legislation, for reasons of policy or political economy, has restrained conveyances in mortmain, but those restrictions formed no part of the common law.' The laws of Spain contained no material change of the Roman and ecclesiastical laws upon this subject." § 429. These Restrictions not in Force in this Country.-"This legislation of Europe was directed to check the wealth and influence of juridicial persons who had existed for centuries there, some of whom had outlived the necessities which had led to their organization and endow ment. Political reasons entered largely into the motives Mereweth. & Steph. Hist. Corp. 489, 702. for this legislation--reasons which never extended their influence to this continent, and, consequently, it has not been introduced into our systems of jurisprudence. 991 § 430. Result of Legislation in Europe.-"The precise result of the legislation is, that corporations there (in England and Europe), with the capacity of acquiring prop erty, must derive their capacity from the sovereign authority, and the practice is to limit that general capacity within narrow limits, or to subject each acquisition to the revisal of the sovereign." § 431. It is a settled rule of the common law that a grant, to be valid, must be to a corporation, or to some certain person named, who can take, by force of the grant. and hold either in his own right or as trustee.' Therefore, a grant by an individual, of a lot of land to "the people of" a specified county, not incorporated, is void. So a reservation in a deed, in favor of the inhabitants of an unincorporated place, is invalid.' But a grant by the State or 12 Kent Com. 282, 283; Whicker v. Hume, 14 Beav. 509; see, also, Chambers v. St. Louis, 29 Mo. 543, 575, and remarks of Scott, J. 2 Per Mr. Justice Campbell, 15 How. 404-407. 3 Co. Litt. 3, a; 10 Co. 26, b; Com. Dig. tit. Capacity, B. 1; Shep. Touch. 236. "It is a general rule, that corporations must take and grant by their corporate name." 2 Kent Com. 291. A corporation aggregate can have no predecessor, and in a writ of right can only count on its own seizin. A statute of 1772, in Massachusetts, provided that twelve persons should be chosen annually by the inhabitants of the town of Boston as overseers of the poor, and they were duly incorporated. In 1822 the town of Boston was changed to a city, the act providing for the election of a board of overseers for the city who shall have all the powers and be subject to all the duties now, by law, pertaining to the overseers of the poor for the town of Boston. It was decided, upon great consideration-Shaw, C. J., delivering the opinion-that this was a continuance, and not a dissolution or suspension, of the corporation of 1772; that the bodies were public corporations, aggregate and not sole, with perpetual succession; that a grant to them of real estate carried the fee, without being, to their successors, and that in a writ of right they can count only upon their own seizin within thirty years next before the commencement of the action. Overseers of the Poor, &c. v. Sears, 22 Pick. 122, 1839. Jackson v. Cory, 8 Johns. 385, 1811; Jackson v. Hartwell, Ib. 422. |