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in considerable detail in discussing the liability of the city for the torts of its officials, and so need only mention here a few of the chief matters which are generally recognized as being primarily of state concern. Chief among such may be mentioned: the preservation of the peace and the enforcement of the criminal law through the police department (17); the protection of the public from disease through the health department; the state school system; the assessment and collection of taxes; and, according to some, the protection of the community from fire through the fire department. Examples of matters primarily of local concern are: sewer systems, park systems, and water, gas, and electric lighting plants, where owned and operated by the city. The leading cases discussing and deciding these questions will be set forth in detail in a later chapter dealing with the liability of public corporations in tort (Chapter III, below).

§ 24. Control of private municipal property: Trust property. According to some of the cases, a public corporation may be the owner of property which falls within the provisions of the Fourteenth Amendment to the Constitution of the United States prohibiting the states to "deprive any person of life, liberty, or property without due process of law," which means, among other things, that private property may not be confiscated. All the authorities agree in holding that property vested in a public corporation in trust, to be devoted to charitable purposes of any kind, cannot be diverted to other purposes by legislative enactment (18). Such property, how

(17) Horton v. Newport, 27 R. I. 283.

(18)

Montpelier v. East Montpelier, 29 Vt. 12.

ever, is not, strictly speaking, municipal property; that is, the public corporation does not own the beneficial interest in it. The principle really involved is that the legislature may not deprive the persons beneficially interested, i. the class of people for whom the trust was created, of the property in question, for it is well settled that it may deprive the public corporation of the title and vest it in a new trustee or set of trustees (19).

e.,

§ 25. Same: Property held for local purposes. It should be recalled that earlier in the chapter (§§ 13-15) we have seen that the legislature may, in the absence of some express constitutional provision forbidding it, change the boundaries of public corporations and distribute the public property of the old public corporations among the new corporations formed. In some cases, however, an attempt has been made in these cases of annexation or division of public corporations to distinguish between "public property" and "private property." For example, in Town of Milwaukee v. City of Milwaukee (20), the act whose constitutionality was challenged provided for the annexation of a part of the town of Milwaukee to the city of Milwaukee and that all the property of the town situated in the annexed district should belong to the city. It was decided that the legislature could not constitutionally divest the town of the title to land situated in the annexed district. In doing so the court used the following language:

"The power of the legislature to enlarge the limits of the city of Milwaukee so as to embrace within them the

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land in question, and subject it and those who occupied it to the jurisdiction and government of the city, cannot be questioned. All persons residing within the limits of such corporations are obliged to be its members, and to submit to the duties imposed by law. All persons holding or owning property within them are, as to it, bound to the same rule of submission. The difficulty about the question is, to distinguish between the corporation as a civil institution or delegation of merely political power, and as an ideal being endowed with the capacity to acquire and hold property for corporate or other purposes. In its political or governmental capacity it is liable at any time to be changed, modified, or destroyed by the legislature; but in its capacity of owner of property, designed for its own or the exclusive use and benefit of its inhabitants, its vested rights of property are no more the subject of legislative interference or control, without the consent of the corporators, than those of a merely private corporation or person. Its rights of property, once acquired, though designed and used to aid it in the discharge of its duties as a local government, are entirely distinct and separate from its powers as a political or municipal body. It might sell its property, or the same might be lost or destroyed, and yet its powers of government would remain. In its character of a political power or local subdivision of government it is a public corporation, but in its character of owner of property it is a private corporation, possessing the same rights, duties and privileges as any other."

§ 26. Same: Property held for state purposes. In another case the same court held that money raised in a

city by taxation for the purpose of erecting a high school could not be diverted by an act of the legislature, without the assent of the city or its inhabitants, to the purchase of a site for a state normal school (21). Among the reasons given for the decision are the ones stated in Milwaukee v. Milwaukee, cited above. According to the court, a high school is a local city institution, but a normal school is a state institution for the benefit of the whole state. While this may be in fact true, it would seem that as a legal proposition the city has no right to continue to control any part of the public school system, if the state wishes to manage it itself. Other courts have accordingly held that municipal property acquired by a city for purposes primarily connected with matters of state administration may be taken from the control of the city and placed under the care of the state authorities (22). In the state of the authorities, therefore, it is difficult to lay down any general propositions which will apply in all the different states, and on principle it seems difficult to assimilate a public corporation to the position of a private person under the Fourteenth Amendment. It would seem better on the whole to rely on the good sense and fairness of the legislature, rather than to attempt to stretch constitutional provisions to cover cases not within the contemplation of their framers.

SECTION 2. EXPRESS CONSTITUTIONAL PROVISIONS.

§ 27. Prohibition of special legislation. Aside from the question of the power of the legislature in dealing with public corporations where no express constitutional

(21) State v. Haben, 22 Wis. 660.

(22) Mayor v. Baltimore, 15 Md. 376; People v. Draper, 15 N. Y. 532.

provisions are involved, we find that the interpretation of such express provisions as do exist is by no means free from doubt and difficulty. One of the commonest provisions is that which forbids the legislature to legislate with reference to public corporations by special act. The language of these provisions varies, but the general intent is the same, viz., to compel the legislature to treat alike all public corporations which are similarly situated. In twenty or more states the legislature is forbidden to incorporate cities, and generally also villages, by special act (23). In a few the prohibition covers only public corporations below a certain size. These provisions are generally regarded as including within their meaning acts amending the charters of the corporations referred to, and some of the provisions expressly so state. In a few the prohibition is based upon a general provision forbidding the conferring of corporate powers by special act, the provision being construed by the courts as including municipal as well as private corporations, but not, perhaps, quasi-municipal corporations, although some courts include the latter (24). Other states, and also some of those having the provisions already given, require the legislature in express terms to pass general acts for the incorporation of public corporations. Another provision, usually applying to quasi-municipal corporations only, forbids the legislature to regulate the internal affairs of the localities by special act. It will be seen that these

(23) Goodnow, Municipal Home Rule, Chap. V. The other figures which follow are taken from the same work.

(24) Goodnow, above, 58; Purdy v. People, 4 Hill 384; Beach v. Leahy, 11 Kansas 25; Clegg v. Richardson County, 8 Neb. 178,

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