HOW FAR ALIENABLE.

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with a view to promote improvement, a barrier which no subsequent legislation could overcome for any end however needful, and confine the public to the use of antiquated methods and inventions.1

The presumption is nevertheless against an intent to annul what the legislature has previously done or granted, and an authority to appropriate property which has already been taken by virtue of the right of eminent domain will not be presumed unless it is conferred in terms or results by a necessary implication, as when a company is authorized to construct a railway from one point to another, and must therefore necessarily pass over the bed of another railway which crosses its path.2

The power to appropriate rights ex contractu to public use is doubtful, and seemingly does not exist where the government is the debtor or obligor. It would be of dangerous consequence if a State could adopt a course calculated to depreciate its loans or bonds, and then compel the creditors to part with them at the market rate or that fixed by a jury. This remark does not apply to charters or other exeThe West River Bridge Co. v. Dix, 6 Howard, 507, 534; The Richmond R. R. Co. v. The Louisiana R. R. Co., 13 Howard, 71, 83; The Boston Water Power Co. v. B. & N. R. R. Co., 23 Pickering, 360; Boston & Lowell R. R. Co. v. Salem R. R. Co., 2 Gray, 35; Charles River Bridge v. The Warren Bridge, 7 Pickering, 394; 11 Id. 420; Greenwood v. The Freight Co., 105 U. S. 13, 22; The Enfield Toll Bridge v. The Hartford R. R. Co., 17 Conn. 45.

1 See The West River Bridge Co. v. Dix, 6 Howard, 507, 547.

2 In the matter of the Petition of the New York L. & W. R. R. Co., 99 N. Y. 23; In the matter of the B. & A. R. R. Co., 53 N. Y. 574; In the matter of the Rochester Water Co., 66 Id. 413; P. P. & C. I. R. R. Co. v. Williamson, 91 Id. 552. It was said in The Boston Water Power Co. v. The Railroad Co., 23 Pick. 360, 368, that the legislature cannot, by virtue of this power, authorize a new turnpike, canal, or railroad on the same line which has been granted to another and coincident with it to its full extent, because the effect would be to provide the same easement which had already been provided for, and there would be no public end in view; but in New Orleans v. The Southern Telegraph Co., 53 Ala. 217, the establishment of one telegraph line along the route which had previously been exclusively granted to another, was held to be a constitutional exercise of the right of eminent domain, ante, p. 354.

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cuted contracts, which confer rights or franchises having a pecuniary value that can be definitely ascertained and paid for.1

1 See The West River Bridge Co. v. Dix, 6 Howard, 507, 558, when the court held the following language:·

"A distinction has been attempted in argument between the power of a government to appropriate for public uses property which is corporeal, or may be said to be in being, and the like power in the government to resume or extinguish a franchise. The distinction thus attempted we regard as a refinement which has no foundation in reason, and one that in truth avoids the true legal or constitutional question in these causes; namely, that of the right in private property to control and actually to prohibit the power and duty of the government to advance and protect the general good. We are aware of nothing peculiar to a franchise which can class it higher, or render it more sacred, than other property. A franchise is property, and nothing more; it is incorporeal property, and is so defined by Justice Blackstone when treating, in his second volume, chap. iii. p. 20, of the Rights of Things. It is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment. Vide Bl. Comm., vol. iii. chap. xvi. p. 236, as to injuries to this description of private property, and the remedies given for redressing them. A franchise, therefore, to erect a bridge, to construct a road, to keep a ferry, and to collect tolls upon them, granted by the authority of the State, we regard as occupying the same position, with respect to the paramount power and duty of the State to promote and protect the public good, as does the right of the citizen to the possession and enjoyment of his land under his patent or contract with the State; and it can no more interpose any obstruction in the way of their just exertion. Such exertion we hold to be not within the inhibition of the Constitution, and no violation of a contract. The power of a State, in the exercise of eminent domain, to extinguish immediately a franchise it had granted, appears never to have been directly brought here for adjudication, and consequently has not been heretofore formally propounded from this court; but in England this power to the fullest extent was recognized in the case of The Governor & Company of the Cast Plate Manufacturers v. Meredith, 4 Term Reports, 794, and Lord Kenyon, especially in that case, founded solely upon this power the entire policy and authority of all the road and canal laws of the kingdom."

LECTURE XXVIII.

Public Corporations Agencies which may be revoked or modified. Their Contracts are obligatory, and cannot be varied or annulled legislatively. The Right and Duty of a Municipal Corporation to levy Taxes for the Payment of its Creditors may be enforced by Mandamus so long as the Corporation is in being, notwithstanding a Law to the contrary. They cease when it is dissolved, but may revive on the Grant of a New Charter. On the Dissolution of a Corporation, its Private Property is charged with a Trust for Creditors, its Public Property is exempt from Execution, and reverts to the State. - Public Offices Agencies not Contracts, and may be abolished during the Term, or the Salary lessened. - A State may engage a Public Servant for a Definite Period, and will then be bound.

THE authorities which have been cited denote that the legislature cannot part irrevocably with the powers which have been intrusted to it for the public welfare, or create a subordinate government which will be beyond its control.1 Public corporations, therefore, as the Chief-Justice pointed out in the Dartmouth College case, are agencies established for governmental purposes, and may be modified or revoked at pleasure. There is no contract in the ordinary sense of the term, or within the meaning of the Constitution of the United States; and if there were, it would fail when on the repeal of the charter one of the parties to the instrument ceases to exist. This is true of all public corporations, and applies with full force to the charters which confer the right of local self-government on towns and boroughs.2 One distinc1 See ante, pp. 608, 620.

2 Sharpless v. Philadelphia, 21 Pa. 147; Kirby v. Shaw, 7 Id. 258; The City of Erie v. The Erie Canal Co., 59 Pa. 174; Moers v. Reading, 21 Pa. 188; Paterson v. The Society, 24 N. J. Law, 385; Berlin v. Gorham, 34 N. H. 266; Butler v. Pennsylvania, 10 Howard, 402; Newton v. The Commissioners, 100 U. S. 528, 548; Meriwether v. Garrett, 102 Id.

tive feature of such an agency is that the legislature creates the body which it employs and authorizes, another that the corporation contracts in its own name, and not on the credit of the citizens individually, or of the State. Hence when it is dissolved, the entire fabric crumbles, and if another is substituted, it will not necessarily inherit the obligations of its predecessor.1

A municipal corporation may be viewed in different aspects, that which it has to the citizen, and that which it bears to the State.2 Seen in the latter relation, it is a revocable agency, constituted for the purpose of carrying out in detail such objects of the government as may be properly intrusted to a subordinate, having no vested right to any of its forms or franchises, and entirely under the control of the legislature, which may enlarge or circumscribe its territorial limits or functions, may change or modify its various departments, or extinguish it with the breath of arbitrary power.

While such is the relation of a municipal corporation to the State, in all other respects it enjoys the rights and is subject to the liabilities of a private corporation or of an individual. For this end it is constituted as a body politic and corporate, having a local habitation and a name, a seal by which to authenticate its acts, a capacity to contract, to sue and to be sued, and to hold and dispose of property with the attendant rights and responsibilities.

"It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates and to the business which is to be transacted. Thus many States of this Union which have an interest in banks are not suable even in their own courts; yet they never exempt the corporation from being sued. The State

1 Meriwether v. Garrett, 102 U. S. 472.

2 Mobile v. Watson, 116 U. S. 289, 304.

ARE REVOCABLE AGENCIES.

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of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily stripped itself of its sovereign character so far as respects the transactions of the bank, and waived all the privileges of that character. As a member of that corporation a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation than are expressly given by the incorporating act."1 For like reasons, municipal corporations, though creatures and instrumentalities of the State, are subject to the jurisdiction of the courts and may be made answerable in damages for their torts and breaches of contract, or when the exigency of the case requires, restrained by injunction.2

It follows that the contracts of a city or borough cannot be varied or annulled to the detriment of the persons entitled under them as creditors. So far as such corporations are endowed with subordinate powers for local government, they are the mere instruments of the State for the convenient administration of its affairs, and are subject to legislative control. When, however, they are empowered to borrow money, to issue bonds in aid of a railway company, or to contract for any other legitimate purpose, and proceed in pursuance of the authority so conferred, they are as much bound, and their obligations are attended with the same guaranties, as those of private corporations or of individuals. But while the obligations of public corporations are thus theoretically indefeasible, they cannot be enforced against their public property, and may be rendered fruitless by repealing the charter, and with it the power of taxation which is the main reliance of the creditors.

1 The United States Bank v. Planters' Bank, 9 Wheaton, 907.

2 See Brady v. Weeks, 3 Barb. (N. Y.) 157; Baily v. The City of New York, 3 Hill, 571; The Western Savings Fund v. The City of Philadelphia, 31 Pa. 175.

3 Wolff v. New Orleans, 103 U. S. 103; Von Hoffman v. The City of Quincy, 4 Wallace, 554; Williams's Appeal, 72 Pa. 214; The People v. Otis, 90 N. Y. 48; McCracken v. Moody, 33 Ark. 87; Smith v. Appleton, 19 Wis. 488; The State v. Young, 29 Minn. 474.

4 Meriwether v. Garrett, 102 U. S. 472.