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trary, clearly expressed the intention of confining 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.?

1 Thompson v. Schermerhorn, 6 improvements in the city, and ought, N. Y. 92. See also Smith v. Morse, 2 therefore, to be executed under the Cal. 524; Oakland v. Carpentier, 13 immediate authority and inspection Cal. 540; Whyte v. Nashville, 2 Swan, of the corporation. It is reasonable 364; East St. Louis v. Wehrung, 50 to suppose that Congress, when grantIll. 28; Rogers v. Collier, 43 Mo. 359; ing a power to authorize gaming, State v. Jersey City, 1 Dutch. 309; would feel some solicitude respecting Hydes v. Joyes, 4 Bush, 464; Lyon v. the fairness with which the power Jerome, 26 Wend. 485; State v. Pat- should be used, and would take as terson, 34 N. J. 168; State v. Fiske, many precautions against its abuse as 9 R. I. 94; Kinmundy v. Mahan, 72 was compatible with its beneficial exIll. 462; Davis v. Reed, 65 N. Y. 566; ercise. Accordingly, we find a limiSupervisors of Jackson v. Brush, 77 tation upon the amount to be raised, Ill. 59; Thomson v. Booneville, 61 and on the object for which the lottery Mo. 282; Dillon, Mun. Corp. § 60. may be authorized. It is to be for

2 The charter of Washington gave any important improvement in the the corporation authority" to author- city, which the ordinary funds or ize the drawing of lotteries, for effect revenue thereof will not accomplish; ing any important improvement in ' and it is subjected to the judginent the city, which the ordinary funds or of the President of the United States. revenue thereof will not accomplish; The power thus cautiously granted is provided that the amount raised in deposited with the corporation itself, each year shall not exceed ten thou without an indication that it is assignsand dollars. And provided also that able. It is to be exercised like other the object for which the money is corporate powers, by the agents of intended to be raised shall be first the corporation under its control. submitted to the President of the While it remains where Congress has United States, and shall be approved placed it, the character of the corpoby him.” Marshall, Ch. J., speaking ration affords some security against of this authority, says : “ There is its abuse, some security that no great weight in the argument that it other mischief will result from it than is a trust, and an important trust, is inseparable from the thing itself. confided to the corporation itself, for But if the management, control, and the purpose of effecting important responsibility may be transferred to

Equally incumbent upon the State legislature and [* 206] 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. 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. 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 * per- [* 207] fect 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." 3

And on the same ground it is held, that a municipal corporation, having power to establish, make, grade, and improve streets, any adventurer who will purchase, all 32 N. Y. 261. Compare Kincaid's the security for fairness which is fur- Appeal, 66 Penn. St. 411; s. c. 5 nished by character and responsibility Am. Rep. 377. is lost." Clark v. Washington, 12 8 Coats v. Mayor, &c. of New Wheat. 54.

York, 7 Cow. 605. See also Davis 1 East Hartford v. Hartford Bridge v. Mayor, &c. of New York, 14 N. Y. Co., 10 How. 535; Dillon, Mun. Corp. 506; Attorney-General v. Mayor, &c.

of New York, 3 Duer, 119; State v. 2 Brick Presbyterian Church v. Graves, 19 Md. 51; Gozzle v. GeorgeCity of New York, 5 Cow. 510; New town, 6 Wheat. 597; Louisville City York v. Second Avenue R. R. Co., R. R. Co. v. Louisville, 8 Bush, 415.

§ 61.

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 con trol 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

1 Calendar v. Marsh, 1 Pick. 417; 502; Pontiac v. Carter, 32 Mich. Griggs v. Foote, 4 Allen, 195; Rad- 164; Wegmann v. Jefferson, 61 Mo. cliffe's Executors v. Brooklyn, 4 N. Y. 55. Compare Louisville v. Rolling 195; Graves v. Otis, 2 Hill, 466; Mill Co., 3 Bush, 416. The law O'Connor v. Pittsburg, 18 Penn. St. would seem to be otherwise declared 187; Reading v. Keppleman, 61 Penn. in Ohio. See Rhodes v. Cincinnati, St. 233; Shinner v. Hartford Bridge 10 Ohio, 159; McCombs v. Akron, 15 Co., 29 Conn. 523; Snyder v. Rock- Ohio, 474; 8. c. 18 Ohio, 229; Crawport, 6 Ind. 237; La Fayette v. Bush, ford v. Delaware, 7 Ohio, n. s. 459. 19 Ind. 326; La Fayette v. Fowler, Compare Alexander v. Milwaukee, 16 34 Ind. 140; Keal v. Keokuk, 4 Wis. 256. Courts will not undertake Greene (Iowa), 47; Cole v. Muscatine, to control municipal discretion in the 14 Iowa, 296; Russell v. Burlington, matter of improving streets. Dun30 Iowa, 262; Roberts r. Chicago, 26 ham v. Hyde Park, 75 Ill. 371; Brush Ill. 249: Murphy v. Chicago, 29 Ill. v. Carbondale, 78 III. 74. The owner 279; Quincy v. Jones, 76 ll. 231; of a lot on a city street acquires no Rounds v. Mumford, 2 R. I. 154; prescriptive right to collateral support Rome v. Omberg, 28 Geo. 46; Roll v. for his buildings which can render Augusta, 34 Geo. 326; Reynolds v. the city liable for injuries caused by Shreveport, 13 La. Ann. 426; White grading the street. Mitchell v. Rome, v. Yazoo City, 27 Miss. 357; Humes 49 Geo. 19; s. c. 15 Am. Rep. 669; v. Mayor, &c. , 1 Humph. 403; St. Louis Quincy v. Jones, 76 Ill. 231; s. c. 20 v. Gumo, 12 Mo. 414; Taylor v. St. Am. Rep. 243. But the failure to Louis, 14 Mo. 20; Keasy v. Louisville, use due care and prudence in grading 4 Dana, 154; Smith v. Washington, may render the city liable. Bloom20 How. 135; Blount v. Janesville, ington v. Brokaw, 77 III. 194. 31 Wis. 618; Nevins v. Peoria, 41 I.

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 * and control the use of that (* 208] street shall not be exercised. ... It cannot be that powers vested in the corporation as an important public trust can thus be frittered away, or parcelled out to individuals or jointstock associations, and secured to them beyond control.” 1

So it has been held, that the city of Philadelphia exercised a portion of the public right of eminent domain in respect to the streets within its limits, subject only to the higher control of the State and the use of the people; and therefore a written license granted by the city, though upon a valuable consideration, authorizing the holder to connect his property with the city railway by a turnout and track, was not such a contract as would prevent the city from abandoning or removing the railway whenever, in the opinion of the city authorities, such action would tend to the benefit of its police.2

Thus hedged in by the limitations which control the legislative power of the State, these corporations are also entitled to the same protection which surrounds the exercise of State legislative power. One of these is, that no right of action shall arise in favor of an individual for incidental injury suffered by him in consequence of their adopting or failing to adopt legislative

1 Milhau v. Sharp, 17 Barb. 435; c. 15. In Milhau v. Sharp, supra, it s. c. 28 Barb. 228, and 27 N. Y. 611. was also held that a corporation, with See also Davis v. Mayor, &c. of New authority" from time to time to reguYork, 14 N. Y. 506; State v. Mayor, late the rates of fare to be charged &c., 3 Duer, 119; State v. Graves, 19 for the carriage of persons,” could Md. 351. Compare Chicago, &c. R. R. not by resolution divest itself thereof Co. o. People, 73 Ill. 541.

The con

as to the carriages employed on a sent of the legislature in any such street-railway. case would relieve it of all difficulty, ? Bryson v. Philadelphia, 47 Penn. except so far as questions might arise St. 329. Compare Louisville City concerning the right of individuals to R. R. Co. v. Louisville, 8 Bush, 415. compensation, as to which see post,

action. Another is, that the same presumption that they have proceeded upon sufficient information and with correct motives shall support their legislative action which supports the statutes of the State, and precludes judicial inquiry on these points.?

These rules, however, must be confined to those cases [* 209] where the corporation *is exercising a discretionary

power, and where the reasons which are to determine whether it shall act or not, and if it does, what the action shall be, are addressed to the municipal body exclusively. If the corporation is in the position of trustee of property for other persons, it is subject to the same supervision and control with other trustees, and where a specific act is required by law to be done, exact performance may be compelled as in other cases.

Among the implied powers of such an organization appears to be the power to defend and indemnify its officers where they have incurred liability in the bona fide discharge of their duty. It has been decided in a case where irregularities had occurred in the assessment of a tax, in consequence of which the tax was void, and the assessors had refunded to the persons taxed the moneys which had been collected and paid into the town, county, and State treasuries, that the town had authority to vote to raise a sum

1 Radcliffe's Ex’rs v. Mayor, &c. Rep. 272; Sparhawk v. Salem, 1 of Brooklyn, 4 N. Y. 195; Duke v. Allen, 30; Randall v. Eastern R. Mayor, &c. of Rome, 20 Geo. 635; Corp., 106 Mass. 276; s. C. 8 Am. Larkin v. Saginaw County, 11 Mich. Rep. 326; Hughes v. Baltimore, 88; Detroit v. Beckman, 34 Mich. Taney, 243. But this doctrine does 125; Little Rock v. Willis, 27 Ark. not deprive an individual of remedy 572; Tate v. M. K. & T. R. R. Co., when by reason of the negligent con64 Mo. 149; St. Louis v. Gurno, 12 struction of a public work his property Mo. 414; Griffin v. Mayor, &c. of is injured, or when the necessary New York, 9 N. Y. 456; Mills v. result of its construction is to flood or Brooklyn, 32 N. Y. 489; Hines v. otherwise injure his property in a manLockport, 50 N. Y. 236; Davenport ner that would render a private individv. Stevenson, 34 Iowa, 225; Bennett ual liable. See Van Pelt v. Davenport, v. New Orleans, 14 La. Ann. 120; 20 Am. Rep. 622, and note thereto, Weightman v. Washington, 1 Black, p. 626; Merrifield v. Worcester, 110 39; Western College v. Cleveland, Mass. 216; 8. c. 14 Am. Rep. 592; 12 Ohio, N. S. 375; Barton v. Syra- Wegmann v. Jefferson, 61 Mo. 55; cuse, 37 Barb. 292; Wheeler v. Cin- Union v. Durkes, 38 N. J. 21. cinnati, 19 Ohio, n. s. 19; s. C. 2 Am. 2 Milhau v. Sharp, 15 Barb. 193; Rep. 368; Hewson v. New Haven, New York and Harlaem Railroad Co. 37 Conn. 475; Murtagh v. St. Louis, v. Mayor, &c. of New York, 1 Hilton, 44 Mo. 480; Commissioners v. Duck- 562; Buell 0. Ball, 20 lowa, 282; ett, 20 Md. 468; Carr v. Northern Freeport v. Marks, 59 Penn. St. 253. Liberties, 35 Penn. St. 324; Grant v. Compare State v. Cincinnati Gas Co., Erie, 69 Penn. St. 420; s. c. 8 Am. 18 Ohio, N. 8. 262.

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