municipal corporations to assume and discharge obligations, can only be such as spring from the general principles governing taxation, namely, that the demand or purpose for which the tax is levied shall be such as to constitute a proper charge or burden. upon the State or portion of the State taxed to pay or to accomplish it. But upon this question the legislature is vested with discretionary and compulsory power, and its decisions are not subject to review in the courts. They must be final, unless in clear cases, where, there being no ground to adjudge the purpose to be a proper one for taxation, the legislature may be held to have proceeded unwarrantably. And perhaps there is still a further limitation, that if the claim is unadjusted and in dispute, the legislature have no authority to adjudicate upon it, but must leave the exercise of the judicial function to the ordinary tribunals.1

Louisiana in Layton v. New Orleans, 12 La. An. 515. In consolidating three distinct municipalities into one, the statute had provided that the territory which had been embraced in each should pay the pre-existing debts. Afterwards a statute was passed that no tax should be levied, "except the same be equal and uniform within the entire limits of the city." This was held to be constitutional. By the court: "As respects municipal corporations, it has always been held that the law of the State creating them, and conferring upon their officers a part of the sovereign authority as mandataries of the government, is not a contract, and as a consequence that the legislature may modify such acts of incorporation at its pleasure. If it has the power to create, modify, or abolish, it has the power to provide in what manner the taxes shall be levied for their support, and how their debts shall be paid upon their dissolution. This is a discretion vested in the legislature (with whom is vested the power of judging of the necessity of taxation), and nothing prevents it from changing its policy if it shall deem the necessities of the public so require. The courts can only interfere when it has overstepped the limits prescribed by the constitution." The Pennsylvania and Louisiana cases above quoted are directly opposed to the case of Hampshire v. Franklin, 16 Mass. 83, cited in the preceding note.

The courts of New York have perhaps gone further than any others in holding that the legislature has complete control over the subject of municipal taxation. Nevertheless it was held, in People v. Hawes, 37 Barb. 440, that the legislature had no right to direct a municipal corporation to satisfy a claim made against it for damages for breach of contract, out of the funds or property of such corporation. In citing the cases of Guilford v. Supervisors of Chenango, 13 N. Y. 143, and People v. Supervisors of New York, 11 Abb. 114, a distinction is drawn, by which the cases are supposed to be reconciled with the one then under decision. 66 Those cases and many others," say the court, p. 455, “related, not to the right or power of the legislature to compel an individual or corporation to pay a debt or claim, but to the power of the legislature to raise money by tax,

Those cases which hold that the State may raise bounty moneys by taxation, to be paid to persons in the military service, we think stand by themselves, and are supported on different principles from any which can fairly be summoned to the aid of some of the other cases which we have cited. The burden of the public defence unquestionably rests upon the whole community; and the legislature may properly provide for its apportionment and

and apply such money, when so raised, to the payment thereof. We could not, under the decisions of the courts on this point, made in these and other cases, now hold that the legislature had not authority to impose a tax to pay any claim, or to pay it out of the State treasury; and for this purpose to impose a tax upon the property of the State, or upon any portion of the State. This was fully settled in People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; but neither that case nor the case in 13 N. Y. 143, in any manner gave a warrant for the opinion, that the legislature had a right to direct a municipal corporation to pay a claim for damages for breach of a contract, out of the funds or property of the corporation, without a submission of such claim to a judicial tribunal." If by this is meant that the legislature has power to compel a corporation to tax its citizens for the payment of a demand, but has not the authority to make it a charge against the corporation in any other mode, the distinction seems to be one of form rather than of substance. It is no protection to the rights or property of a municipal corporation to hold that the legislature cannot determine upon the claims against it, if at the same time the corporation may be compelled by statute to assume and discharge the obligation through the levy of a tax for its satisfaction. But if it is only meant to declare that the legislature cannot adjudicate upon disputed claims, there can be no good reason to find fault with the decision. It is one thing to determine that the nature of a claim is such as to make it proper to satisfy it by taxation, and another to adjudge how much is justly due upon it. The one is the exercise of legislative power, the other of judicial. But the power to decide upon the breach of a contract by a corporation, and the extent of the damages which have resulted, is less objectionable and less likely to lead to oppression, than the power to impose through taxation a claim upon a corporation which it never was concerned in creating, against which it protests, and which is unconnected with the ordinary functions and purposes of municipal government; as was the case in Thomas v. Leland, 24 Wend. 67. In Borough of Dunmore's Appeal, 52 Penn. St. 374, a decision was made which seems to conflict with that in People v. Hawes, supra; and with the subsequent case of Baldwin v. Mayor, &c. of New York, 42 Barb. 549. The Pennsylvania court decided that the constitutional guaranty of the right to jury trial had no application to municipal corporations, and a commission might be created by the legislature to adjust the demands between them. See also Layton v. New Orleans, 12 La. An. 515. In People v. Power, 25 Ill. 187, it was held competent for the legislature to apportion the taxes collected in a county between a city therein and the remainder of the county, and that the county revenues "must necessarily be within the control of the legislature for political purposes."

discharge in such manner as its wisdom may prescribe. But those cases which hold it competent for the legislature to give its consent to a municipal corporation engaging in works of public improvement outside its territorial limits, and becoming a stockholder in a private corporation, have certainly, as we think, gone to the very limits of constitutional power in this direction; and to hold that the legislature may go even further, and, under its power to control the taxation of the political divisions and organizations of the State, may compel them, against the will of their citizens, to raise money for such purposes, and invest their funds in these exterior undertakings, seems to us to be introducing new principles into our system of local self-government, and to be sanctioning a centralization of power not within the contemplation of the makers of the American constitutions. We think if any such forced taxation is resisted by the municipal organization, it will be very difficult to defend it as a proper exercise of legislative authority in a government where power is distributed on the principles which prevail here.

Legislative Control of Corporate Property.

The legislative power of the State controls and disposes of the property of the State. How far it can also control and dispose of the property of those agencies of government which it has created and endowed with corporate powers is a question which happily there has been very little occasion to discuss in the courts. Being a mere agency of government, it is evident that the municipality cannot itself have that complete and absolute control and power of disposition of its property which is possessed by individuals over their own. For it can hold and own property only for corporate purposes, and these purposes are liable at any time to be so modified by legislation as to render the property no longer available. Moreover, the chartered rights may altogether be taken away; and in that case the legislature has deprived the corporation of its property by depriving it of corporate capacity to hold it. And in many ways, while the corporation holds and enjoys property, the legislature must possess power to interfere with its control at least incidentally; for the mere fact that the corporation possesses property cannot deprive the State of its complete authority to mould and change

the corporate organization, and enlarge or diminish its powers, which it possessed before. But whether the State can directly intervene and take away the corporate property, or convert it to other uses than those for which it was procured, or whether, on repealing a charter of incorporation, it can take to itself the corporate property, and dispose of it at its discretion, are different questions from any raised by the indirect and incidental interference referred to.

In the leading case, in which it was held by the Supreme Court of the United States that a private charter of incorporation, granted by a State, was a contract between the State and the corporators, not subject to modification or repeal, except in pursuance of a right expressly reserved, but that the charter of a municipal corporation was not such a contract, it was at the same time declared, as the opinion of the judges, that the legislature could not deprive such municipal corporations of their vested rights in property. "It may be admitted," says one of the judges, "that corporations for mere public government, such as towns, cities, and counties, may in many respects be subject to legislative control. But it will hardly be contended, that even in respect to such corporations, the legislative power is so transcendent that it may, at its will, take away the private property of the corporation, or change the uses of its private funds acquired under the public faith. Can the legislature confiscate to its own use the private funds which a municipal corporation holds under its charter, without any default or consent of the corporators? If a municipal corporation be capable of holding devises and legacies to charitable uses, as many municipal corporations are, does the legislature, under our forms of limited government, possess the authority to seize upon those funds and appropriate them to other uses, at its own arbitrary pleasure, against the will of the donors and donees? From the very nature of our government, the public faith is pledged the other way, and that pledge constitutes a valid compact; and that compact is subject only to judicial inquiry, construction, and abrogation." 1 "The government has no power to revoke a grant, even of its own funds, when given to a private person or corporation for special uses. It cannot recall its own endowments, granted to any hospital or college, or city or town, for the use of such cor1 Story, J., in Dartmouth College v. Woodward, 4 Wheat. 694, 695.

porations. The only authority remaining to the government is judicial, to ascertain the validity of the grant, to enforce its proper uses, to suppress frauds, and, if the uses are charitable, to secure their regular administration through the means of equitable tribunals, in cases where there would otherwise be a failure of justice." 1

"In respect to public corporations," says another judge, "which exist only for public purposes, such as towns, cities, &c., the legislature may, under proper limitations, change, modify, enlarge, or restrain them, securing, however, the property for the use of those for whom and at whose expense it was purchased."2 These views had been acted upon by the same court in preceding cases. They draw a distinction between the political rights conferred on corporations, and which are not vested rights in any sense implying constitutional protection, and such rights in property as the corporation acquires, and which are protected by the same reasons which shield similar rights in individuals.1

When a municipal division of the territory of the State is changed in its boundaries, two or more consolidated in one, or one subdivided, it is conceded that the legislature possesses the power to make such disposition of the corporate property as natural equity would require in view of the altered condition of things. The fact that a portion of the citizens, before entitled to the benefits springing from the use of specific property for public purposes, will now be deprived of that benefit, cannot affect the validity of the legislative act, which is supposed in some other way to compensate them for the incidental loss. And in many 1 Ibid. 698.

* Washington, J., Dartmouth College v. Woodward, 4 Wheat. 663.

3 Terrett v. Taylor, 9 Cranch, 43; Town of Pawlet v. Clark, Ibid. 292. "It is an unsound and even absurd proposition that political power conferred by the legislature can become a vested right, as against the government, in any individual or body of men. It is repugnant to the genius of our institutions, and the spirit and meaning of the constitution; for by that fundamental law, all political rights not there defined and taken out of the exercise of legislative discretion were intended to be left subject to its regulation. If corporations can set up a vested right as against the government to the exercise of this species of power, because it has been conferred upon them by the bounty of the legislature, so may any and every officer under the government do the same." Nelson, J., in People v. Morris, 13 Wend. 331. And see Bristol v. New Chester, 3 N. H. 532; Benson v. Mayor, &c. of New York, 10 Barb. 244.

'Bristol v. New Chester, 3 N. H. 533. And see ante, 232 234, notes.