"Notwithstanding the general proposition and popular belief that a municipal corporation is subject to the unlimited and uncontrolled exercise of powers by the State, that is not the case. A municipal corporation certainly occupies a very different position from the private corporation, in respect to the power of legislative control over such corporation, at least in regard to a large part of its powers. But in order to determine how far the State government may interfere with the municipal corporation, either as to its existence as a body corporate or as to its rights, a closer investigation is required into the actual condition of things which lead up to the incorporation of a municipality. What the legislature does in the way of the creation of a body corporate, is certainly subject to change and modification by the same power that creates it. But what the legislature does not create by such act of incorporation and what exists independently of the legislative action, is something which the legislator can by no act dispose of or destroy. The legislator does not create the community which is incorporated by the legislative act, he simply gives to a community already existent a legal personality which it cannot have independently of such legislative act. This legal personality is the sole creation of the legislator."1

That the municipal corporation, composed of many thousands, and, in some cases, millions of persons, can be the creation of a few legislators, representative not of the community nor inhabitants of it, cannot be entertained. Nor can it be said seriously that this corporation of free self-directing citizens needs more intervention in the creation of its corporate form than does the private corporation of a few men. For it is not only now conceded that the right of incorporation

1 Tiedeman, Municipal Corporations, sec. 9.

is free, subject only to compliance with the general law, but it has always been admitted that there can exist without such substantial compliance a corporation de facto; in other words, there is such a thing as common-law corporations, and the formulation of a general law to apply to all equally and upon the same terms merely preserves the common law and does not make the ordinary corporation other than a common-law corporation. When all the members of the municipal corporation are citizens of a nation, gathered under the guarantees of freedom and selfgovernment into a territorial political body, they are certainly the capable and the only proper judges, subject to the common law of the country, of the terms of the contract by which they wish to be joined. And it is reasonable that they should have free scope to change or extend the terms of that contract subject only to the common law of the country.' That they derive their powers from the temporary government of the State or from the past generations either of the State or of the municipality, neither experience nor theory supports. These corporations are creations of their own inherent nature and neither the laws nor the power of man have been able to destroy them. The only control which they need, or can admit, is that from within, that self-imposed by grant to the State, which must be within limits, and that of the rules of justice applicable to, and determined by, the history of the race and preserved in the common law of the land.

To a great extent the powers of a municipal corporation are determined by the common law, but not entirely. The specific application of the common law leaves a wide range of choice, e.g., the extent to which municipal works shall be undertaken by the municipality.

"The proposition which asserts the amplitude of legislative control over municipal corporations when confined, as it should be, to such corporations as agencies of the State in its government, is entirely sound.' They are not created exclusively for that purpose, but have other objects and purposes peculiarly local, and in which the State at large, except in conferring the power and regulating its exercise, is legally no more concerned than it is in the individual and private concerns of its several citizens. Indeed it would be easy to show that it is not from the standpoint of State interest, but from that of local interest, that the necessity of incorporating cities and villages most distinctly appears. State duties of a local nature can for the most part be very well performed through the usual township and county organizations. It is because, when an urban population is collected, many things are necessary for their comfort and protection which are not needed in the country, that the State is then called upon to confer large powers and to make the locality a subordinate commonwealth."2

1 "In regard to the powers and property which are vested in a municipal corporation in its public character, as a branch of the State government, there can be no limit to the control of such corporation by the State. But where the municipal corporation, as it always does, by virtue of its existence as a legal personality, acquires the rights of property of a private character for the benefit of the community which has been incorporated, and in the enjoyment of which the State at large is not concerned, these proprietary rights constitute in the constitutional sense vested rights, if not of the municipal corporation itself, yet of the community which has been incorporated, which cannot be divested or taken away by legislative action." Weightman v. Washington, 1 Black (U. S.), 39; U. S. v. B. & O. R. R. Co., 17 Wall. 332.

Cooley, J., in People v. Detroit, 28 Mich. 228; see also Underhill v. Essex (Vt.), 23 Atl. 617; State v. Lamoureux, 30 Pac. Rep. 243. But see as to sufficiency of common-law rules of dedication as to control of municipal property, Cincinnati v. White, 6 Pet. 431; Pawlet v. Clark, 9 Cranch, 292; Hoboken v. Pa. R. R. Co.,

§ 65. MUNICIPAL CORPORATIONS EXISTED DE FACTO IN ENGLAND BEFORE THE CHARTERS. - The authorities are not satisfactory as to the origin of municipal corporations. The dictum of Coke is repeated that none but the King can create a corporation, it being forgotten that Coke gave no authority and was a King's judge sustaining the prerogative. In Sir Moyle Finch's case,' the argument of the lawyers was that not even the King can create a manor. The application of the idea of a charter to municipal corporations has given them a semblance of the dependence upon the sovereign which for a long time was felt by private corporations while they were yet supposed to be grants of privilege and the general law of incorporation was not known. The charter (charta), 124 U. S. 656, 681; New Orleans v. United States, 10 Pet. 662; Morgan v. Chicago, etc. Co., 96 U. S. 716; U. S. v. Chicago, 7 How. 185; Barclay v. Howell's Lessee, 6 Pet. 498; Gormley v. Clark, 134 U. S. 338; Yates v. Milwaukee, 10 Wall. 497, 504; Turner v. People's Ferry Co., 21 Fed. Rep. 90; Illinois v. Illinois Central R. R. Co., 33 Fed. Rep. 730; Barney v. Keokuk, 94 U. S. 324; Potomac Steamboat Co. v. Up. Pot. Steamboat Co., 109 U. S. 672; Coffin v. Portland, II Sawy. C. C. R. 600, S. C. 27 Fed. Rep. 412; Harris v. Elliott, 10 Pet. 25; Banks v. Ogden, 2 Wall. 57, 69; New Orleans v. Leverich, 10 Pet. 332.

1 6 Co. Rep. 64.

'The legislature, or law-making power (not necessarily the State legislature), simply creates the legal personality which we call the municipal corporation; but it neither creates nor can destroy the community which goes to make up the city or town, and which continues to exist independently of all legislative action whatever. While the corporation, as a legal entity, depends for its continued existence upon the legislative discretion; yet where the power of dissolution of such corporation is exercised by the State legislature, the dissolution of such corporation cannot in any way affect or impair the property or rights of property which the incorporators have created under their charter, or the rights of its creditors. Mumma v. Potomac, 8 Pet. 285; Fletcher v.

literally the paper, is merely the written legal evidence of the recognition of the existence of such a body. It follows from this definition that a corporation may exist without a charter. In point of fact, municipal corporations did exist in England before they had any charters, and the first charters they had were not grants of original or new powers, but were confirmations of the inherent powers, liberties, franchises, and privileges they already had. The victory of the towns over feudalism was carried out by the payment of a fixed sum to the lord of the manor for the privilege of release from rents for his lands and the recognition of the right to direct the exercise of their rights as townsmen. This was fee-farm, the title of Madox's famous book on corporations, "Firma Burgi.” The lord gave them a charter confirming their rights, but the confirmation was made necessary only by the

Peck, 6 Cranch, 135; Sinking Fund Cases, 99 U. S. 700; Greenwood v. Freight Co., 105 U. S. 13; R. R. Co. v. Delaware, 114 U. S. 501; New O. W. W. Co. v. Rivers, 115 U. S. 674; while the State may control the property of a municipality, as it controls other property, it cannot devest the city of its property, or transfer such property to some non-municipal use, People v. O'Brien, 111 N. Y. 1; Sinking Fund Cases, 99 U. S. 700; N. O. W. W. Co. v. Rivers, 115 U. S. 674; without payment or compensation. Mount Hope Cemetery v. Boston, 33 N. E. R. 695. The State cannot destroy or divert city property without the exercise of eminent domain. Dartmouth College Case, 4 Wheat. 694: Terrett v. Taylor, 9 Cranch, 52. "The State courts may think that property has been taken by due process of law, but the United States courts be of opinion that there was want of due process." Norwood v. Baker, 172 U. S. 269. Any law which applies to all members of a 'common-law' class of municipalities is general." Hermann v. Guttenberg, 63 N. J. Law 616. 'If municipalities are common law creatures, they ought to be alike in the different States having the common law." Harry Hubbard, Special Legislation for Municipalities. Harvard Law Review, Vol. XVIII, 599.

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