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 decided 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 [*237] city or town, for the use of such corporations. *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

1 Story, J., in Dartmouth College v. Woodward, 4 Wheat. 694, 695.

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 and privileges conferred on corporations, and which are not vested rights in any sense implying constitutional permanency, and such rights in property as the corporation acquires, and which in the view of these decisions are protected by the same reasons which shield similar rights in individuals.1

When the municipal divisions of the territory of the State are changed in their 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

1 Story, J., in Dartmouth College v. Woodward, 4 Wheat. 698.

2

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

'Terrett v. Taylor, 9 Cranch, 43; Town of Pawlet v. Clark, ib. 292. See also State v. Haben, 22 Wis. 660, referred to, ante, 230-31 note. In People v. Common Council of Detroit, Sup. Court of Michigan, Oct. Term, 1873, this subject was largely considered, and the court denied the right of the State to compel a municipal corporation to contract a debt for a mere local object; for example, a city park.

***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.

*

way to compensate them for the incidental loss. And in [*238] many other cases the legislature properly exercises. similar power of control in respect to the corporate property, and may direct its partition and appropriation, in order to accommodate most justly and effectually, in view of new circumstances, the purposes for which it was acquired.

The rule upon the subject we take to be this: when corporate powers are conferred, there is an implied compact between the State and the corporators that the property which they are given the capacity to acquire for corporate purposes under their charter shall not be taken from them and appropriated to other uses. If the State grants property to the corporation, the grant is an executed contract, which cannot be revoked. The rights acquired, either by such grants or by any other legitimate mode in which such a corporation can acquire property, are vested rights, and cannot be taken away. Nevertheless if the corporate powers should be repealed, the corporate ownership would necessarily cease, and even when not repealed, a modification of those powers, or a change in corporate bounds, might seriously affect, if not altogether divest, the rights of individual corporators, so far as they can be said to have any rights in public property. And in other ways, incidentally as well as by direct intervention, the State may exercise authority and control over the disposition and use of corporate property, according to the legislative view of what is proper for the public interest and just to the corporators, subject only as we think to this restriction, that the purpose for which the property was originally acquired shall be kept in view, so far as the circumstances will admit, in any disposition that may be made of it.3

1 Bristol v. New Chester, 3 N. H. 533. And see ante, 232-234, notes. 2 If land is dedicated as a public square, and accepted as such, a law devoting it to other uses is void, because violating the obligation of contracts. Warren v. Lyons City, 22 Iowa, 351. As there was no attempt in that case to appropriate the land to such other uses under the right of eminent domain, the question of the power to do so was not considered.

"That the State may make a contract with, or a grant to, a public municipal corporation, which it could not subsequently impair or resume, is not denied; but in such a case the corporation is to be regarded as a private company. A grant may be made to a public corporation for purposes of private advantage; and although the public may also derive a common benefit therefrom, yet the corporation stands on the same footing, as respects such grant, as would any body of per

*This restriction is not the less applicable where corpo- [* 239] rate powers are abolished than it is in other cases; and

sons upon whom like privileges were conferred. Public or municipal corporations, however, which exist only for public purposes, and possess no powers except such as are bestowed upon them for public political purposes, are subject at all times to the control of the legislature, which may alter, modify, or abolish them at pleasure." Trumbull, J., in Richland County v. Lawrence County, 12 Ill. 8. “Public corporations are but parts of the machinery employed in carrying on the affairs of the State; and they are subject to be changed, modified, or destroyed, as the exigencies of the public may demand. The State may exercise a general superintendence and control over them and their rights and effects, so that their property is not diverted from the uses and objects for which it was given or purchased." Trustees of Schools v. Tatman, 13 Ill. 30, per Treat, Ch. J. And see Harrison v. Bridgeton, 16 Mass. 16; Montpelier v. East Montpelier, 27 Vt. 704; Same v. Same, 29 Vt. 19; Benson v. Mayor, &c., of New York, 10 Barb. 223. See also City of Louisville v. University, 15 B. Monr. 642. In State v. St. Louis County Court, 34 Mo. 572, the following remarks are made by the court, in considering the cause shown by the county in answer to an application to compel it to meet a requisition for the police board of St. Louis: "As to the second cause shown in the return, it is understood to mean, not that there is in fact no money in the treasury to pay this requisition, but that as a matter of law all the money which is in the treasury was collected for specific purposes from which it cannot be diverted. The specific purposes for which the money was collected were those heretofore directed by the legislature; and this act, being a later expression of the will of the legislature, controls the subject, and so far as it conflicts with previous acts repeals them. The county is not a private corporation, but an agency of the State government; and though as a public corporation it holds property, such holding is subject to a large extent to the will of the legislature. Whilst the legislature cannot take away from a county its property, it has full power to direct the mode in which the property shall be used for the benefit of the county." Compare People v. Mahaney, 13 Mich. 433. In Darlington v. New York, 31 N. Y. 164, the complete control of the legislature over the corporate property of cities was asserted, and it was held competent to subject the city to liability for property destroyed by a riot. It will be observed that the strong expression of legislative power is generally to be found in cases where the thing actually done was clearly and unquestionably competent. In Payne v. Treadwell, 16 Cal. 233, this language is used: "The agents of the corporation can sell or dispose of the property of the corporation only in the way and according to the order of the legislature; and therefore the legislature may by law operating immediately upon the subject dispose of this property, or give effect to any previous disposition or attempted disposition. The property itself is a trust, and the legislature is the prime and controlling power, managing and directing the use, disposition, and direction of it." Quoted and approved in San Francisco v. Canavan, 42 Cal. 558. These strong and general expressions should be compared with what is said in Grogan v. San Francisco, 18 Cal. 590, in which the right of municipal corporations to constitutional protection in their property is asserted fully. The same

whatever might be the nature of the public property which th corporation had acquired, and whatever the purpose of the acquisition, the legislature, when by taking away the corporate authority it became vested with the control of the property, would be under obligation to dispose of it in such manner as to give the original corporators the benefit thereof, by putting it to the use designed, if still practicable, or to some kindred or equally beneficial use having reference to the altered condition of things. The obligation is one which, from the very nature of the case, must rest for its enforcement in great measure upon the legislative good faith and sense of justice; and it could only be in those cases where there had been a clear disregard of the rights of the original corporators, in the use attempted to be made of the property, that relief could be had through judicial action.

No such restriction, however, can rest upon the legislature in regard to the rights and privileges which the State grants to municipal corporations in the nature of franchises, and which are granted only as aids or conveniences to the municipality in effecting the purposes of its incorporation. These, like the corporate powers, must be understood to be granted during pleasure.1

right is asserted in People v. Bacheller, lately decided in the Court of Appeals of New York; People v. Mayor, &c., of Chicago, 51 Ill. 17; People v. Tappan, 29 Wis. 664; People v. Hurlbut, 24 Mich. 44, and very many others. See Dillon, Mun. Corp. § 39 et seq., and cases referred to in notes. And see Hewison v. New Haven, 37 Conn. 483, as to the distinction between the public or governmental character of municipal corporations, and their private character as respects the ownership and management of their own property.

East Hartford v. Hartford Bridge Co., 10 How. 535. On this subject, see c. 9, post. The case of Trustees of Aberdeen Academy v. Mayor, &c., of Aberdeen, 13 S. & M. 645, appears to be contra. By the charter of the town of Aberdeen in 1837, the legislature granted to it the sole power to grant licenses to sell vinous and spirituous liquors within the corporate limits thereof, and to appropriate the money arising therefrom to city purposes. In 1848 an act was passed giving these moneys to the Aberdeen Female, Academy. The act was held void, on the ground that the original grant was of a franchise which constituted property, and it could not be transferred to another, though it might be repealed. The case cites Bailey v. Mayor, &c., 3 Hill, 541, and St. Louis v. Russell, 9 Mo. 507, which seem to have little relevancy. Also, 4 Wheat. 663, 698, 699; and 2 Kent, 305, note, for the general rule protecting municipal corporations in their vested rights to property. The case of Benson v. Mayor, &c., of New York, 10 Barb. 223, also holds the grant of a ferry franchise to a municipal corporation to be irrevocable, but the authorities generally will not sustain this view. See post, p. 283, and note.