§ 341. Conditions Imposed by Congress.-In a railroad land grant Congress may impose conditions, such as for the transportation of property or troops of the United States and that the land shall remain and be a public highway for the use of the government, although this does not entitle it to free transportation of such property or troops.1 So conditions for forfeiture of a railroad land grant to aid in construction of the road may be imposed by an act of Congress if the road is not completed within a certain number of years, but such condition subsequent can only be enforced by the United States." But where an act of Congress appropriates money to be paid to railroad companies to carry out a scheme of public improvements in the District of Columbia and such enactment also requires those companies to eliminate grade crossings and erect a union station, and recognizes and provides for the surrender of existing rights, it is an act appropriating money for governmental purposes, and not for the private use of those companies, and the statutes for thus eliminating grade crossings, etc., are not unconstitutional on the ground that they appropriate moneys to be paid railway companies for their exclusive use, nor is the property of a taxpayer taken without due process of law by reason of the taxes imposed under such statutes. If special conditions are imposed by Congress under a special act of Congress incorporating a railroad company, and such conditions are a prerequisite to the acceptance of certain benefits, and particular interests are also protected under such grant, if the conditions are accepted and the special interests have determined, the

1 Lake Superior & Miss. R. Co. v. United States, 93 U. S. 442, 23 L. ed. 965. See Joyce on Electric Law (2d ed.), §§ 31, 37a, 38.

2 Lake Superior S. C. Iron Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103, 39 L. ed. 183. Compare United States v. Northern Pac. R. Co., 177 U. S. 435, 44 L. ed. 836, 20 Sup. Ct. 706 (where under the act of

3

July 2, 1864, non-completion of the railroad within the time limited did not operate as a forfeiture); United States v. Tenn. & C. R. Co., 176 U. S. 242, 44 L. ed. 452, 20 Sup. Ct.—.

3 Acts Cong. Feb. 12, 1901, 31 Stat. 767, 774, and of Feb. 28, 1903, 32 Stat. 909.

Millard v. Roberts, 202 U. S. 429, 50 L. ed. 1090, 26 Sup. Ct. 674.

corporation is not precluded from availing itself of the general railway law.5

§ 342. Conditions Imposed by Legislature.-As we have stated substantially elsewhere, the legislature has authority to determine and direct the conditions upon which a corporation organized for a public purpose and enjoying a public franchise shall exercise the right conferred upon it; that is, the State may prescribe upon what conditions the rights and privileges granted by it shall be held and enjoyed.? So it is declared that it has never been doubted that the legislative authority, in making a grant of a corporate franchise, can prescribe such terms and such conditions for its acceptance and for its enjoyment as it shall deem best, not inconsistent with constitutional limitations. The manner of enjoying the franchise, its life, its scope, are all subject to legislative control. It is also asserted that: "There is no doubt, that among the powers so delegated to the legislature, is the power to grant the franchises of bridges and ferries, and others of a like nature. The power to grant is not limited by any restrictive terms in the Constitution, and it is of course general and unlimited as to the terms, the manner, and the extent of granting franchises. These are matters resting in its sound discretion; and having the right to grant, its grantees have the right to hold, according to the terms of their grant, and to the extent of the exclusive privileges conferred thereby.""

§ 343. Municipal Powers-Generally.-Municipal corporations, in the exercise of their duties, are a department of the State; they are in every essential only auxiliaries of the State

Jersey City Gas Light Co. v. United Gas Improvement Co., 46 Fed. 264, 266, per Greene, J., case

5 United States, Search, v. Choctaw, O. & G. R. Co., 3 Okla. 404, 41 Pac. 729. See § 96, herein, and cases cited aff'd 58 Fed. 323. at pp. 189, 190.

7 Delaware, L. & W. R. Co. v. Central Stock Yard & T. Co., 43 N. J. Eq. 71, 10 Atl. 490.

Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 644, 645, 9 L. ed. 773, per Story, J., in dissenting opinion.

for the purposes of local government; they are simply political subdivisions of the State existing by virtue of the exercise of the power of the State through its legislative department; they may be created, or, having been created, may be destroyed, or their powers may be restricted, enlarged or withdrawn at the will of the legislature, subject only to the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed.10 These corporations, being created only to aid the state government in the legislation and administration of local affairs, possess only such powers as are expressly granted, or as may be implied because essential to carry into effect those which are expressly granted.11 If a municipality is not authorized by its charter or other act of the legislature so to do it has no power

10 Worcester, City of, v. Worcester Con. St. Ry. Co., 196 U. S. 539, 49 L. ed. 591, 25 Sup. Ct. 327; Atkin v. Kansas, 191 U. S. 207, 48 L. ed. 148, 24 Sup. Ct. 124.

A municipal corporation, in the exercise of its duties, is a department of the State. Its powers may be large or small; they may be increased or diminished from time to time at the pleasure of the State, or the State may itself directly exercise in any locality all the powers usually conferred upon such a corporation. Such changes do not alter its fundamental character. Barnes v. District of Columbia, 91 U. S. 540, 23 L. ed. 440.

"The term 'municipality,' when used in this act, includes a city, village, town or lighting district, organized as provided by general or special act." Public Service Commissions Law of N. Y., Laws 1907, p. 892, chap. 429, 1, § 2.

art.

rey, 108 U. S. 110, 27 L. ed. 669, 2 Sup. Ct. —.

Alaska: Ketchikan Co. v. Citizens' Co., 2 Alaska, 120.

Iowa: Borough v. City of Cherokee (Iowa, 1906), 109 N. W. 876.

Missouri: Joplin, City of, v. Leckie, 78 Mo. App. 8, 2 Mo. App. Repr. 123.

South Carolina: Germania Sav. Bank v. Darlington, 50 S. C. 337, 27 S. C. 846.

Texas: Waters-Pierce Oil Co. v. McElroy (Tex. Civ. App.), 47 S. W. 272.

Municipal corporations must act within the scope of their powers expressly conferred or within such as are necessary to the exercise thereof. Ogden v. Bear Lake & River Water Works & Irrig. Co., 16 Utah, 440, 41 L. R. A. 305, 52 Pac. 697.

No corporation, municipal or otherwise, possesses any powers, except such as have been granted to it.

11 United States: Ottawa v. Ca- State v. Mayor, etc., of New York,

3 Duer (N. Y.), 119.

or authority to enter upon or take the land of a citizen for the purpose of digging or laying a sewer thereon; especially so where no mode is prescribed for the condemnation of such property for public use, for without a grant of such power no municipal corporation can exercise it. To justify such an authority claimed by a city there would have to be a necessity for the taking and the payment of just and adequate compensation before taking. 12 Again, in the absence of any provision to that effect in the original franchise, the city granting a franchise to a street railway company, cannot on the expiration of the franchise, take possession of the rails, poles and operating appliances; they are property belonging to the original owner, and an ordinance granting that property to another company on payment to the owner of a sum to be adjudicated as its value is void as depriving the owner of its property without due process of law.13 Municipal corporations, as in case of county boards of police, when authorized by statute to do acts which otherwise they would have no power to do, such as subscribe to a railroad incorporated and beginning in another State and passing through their own State, cannot modify or alter the subscription as authorized by the statute, and a compromise by such board with a railroad company which does so alter or modify the subscription is accordingly void.14

12 Butler v. Mayor, etc., of Thom- v. Michigan Cent. R. Co., 111 U. S. asville, 74 Ga. 570.

228, 28 L. ed. 410, 4 Sup. Ct. 369; Otoe County v. Baldwin, 111 U. S. 1, 28 L. ed. 331, 4 Sup. Ct. 265; Hoff. v. Jasper County, 110 U. S. 53, 28 L. ed. 68, 3 Sup. Ct. -; Lewis v. Shreveport, 108 U. S. 282, 27 L. ed. 728, 2 Sup. Ct. 634; Jarrot v. Moberly, 103 U. S. 580, 26 L. ed. 492; Buchanan v. Litchfield, 102 U. S. 278, 26 L. ed. 138; Chicago, City of, v. Galpin, 183 Ill. 399, 55 N. E. 731. Compare Board of Liquidation v. Louisville & Nashville R. Co., 109 U. S. 221, 27 L. ed. 916, 3 Sup. Ct.

13 Cleveland Electric Ry. Co. v. Cleveland, 204 U. S. 116, 51 L. ed. 27 Sup. Ct. 14 Bell v. Railroad Co., 4 Wall. (71 U. S.) 598, 18 L. ed. 338. Examine Hedges v. Dixon County, 150 U. S. 182, 191, 37 L. ed. 1044, 14 Sup. Ct. 71; Brennan v. German-American Bank, 144 U. S. 173, 36 L. ed. 390, 12 Sup. Ct. 559; Doon Township v. Commins, 142 U. S. 366, 374, 35 L. ed. 1044, 12 Sup. Ct. 220; Litchfield v. Ballou, 114 U. S. 190, 29 L. ed. 132, 5 Sup. Ct. 820; Hayes 144.