so far forth it is subject to the rules of liability controlling private corporations in the ownership of property, while the quasi-public corporation is of a private nature and object, with incidents only that are public.1

2. Same subject-Establishment and nature. It is established under law; that is, it may be created by special charter enacted by the general assembly, without popular expression or action from the inhabitants of the territory; indeed, municipalities have been incorporated in direct antagonism to the expressed wish of the people. Or it may be voluntarily organized by the residents of a specified territory under general incorporation laws, enacted for such purpose, and authorizing the erection of a municipality by such means. When fully incorporated,

both are equally perfect public corporations.

The incorporation of a municipality is a sovereign act of legislation, because in this country no other governmental power may create such a corporation. The power may not be delegated to any inferior body. The Federal Congress or the legislatures of the states alone possess this inherent creative power. The municipal corporation unites the people and the land, for neither people or land alone can constitute a municipality. Like a home, it requires a union of both elements-the land to give it body, and men to give it spirit and life. It has a prescribed boundary, because the limits of the municipality must be fixed and definite, that its territorial jurisdiction may not be uncertain or doubtful.

1 McKim v. Odom, 3 Bland's Ch. 407 (Md.), LEADING ILLUSTRATIVE CASES.

The body is corporate and politic, because it is authorized and organized as an agency of the state for public uses and the public good.2

It is local, because, unlike the ancient cities, its powers and franchises are to be confined to its territorial limits, or lands immediately contiguous which are sometimes included for police and sanitary purposes.

It is for self-government, because the idea of foreign domination and exclusion of the people of a city or town from the administration of its internal affairs is repugnant to the fundamental conception of a municipality and the genius of American institutions. "Municipium" means a free town, and "municeps" a free citizen thereof, as those ideas were conceived in the Roman Empire.

A city not governed by its own laws and ordinances in its domestic concerns is not a municipality, either by history or etymology. It must have powers, or it cannot be a government-powers sufficient to authorize it to make its own laws and enforce them.

3. Creation. The creation of municipal corporations within the limits of a state is the appropriate and exclusive function of the legislative power of that state, as explained above.

All governmental power of the state in our country inheres in the people of the state. They organize their government by a constitution, wherein they confer all legislative power upon the legislative department. The granting of any right, power, or franchise pertaining to public matters is obviously a func

2 People v. Ingersoll, 56 N. Y. 1, LEADING ILLUSTRATIVE CASES.

tion of legislation, and cannot be within the province of the executive or judicial departments. A municipal corporation requires this grant of governmental authority as the essential condition of its being. The legislature has a discretion, uncontrolled by any constitutional limitations, to decide when a given locality has a sufficient number of inhabitants to entitle it to be incorporated as a city.3

The power to create a municipal corporation being vested in the legislature, implies the power to create it with such limitations as that body may see fit to impose, and to impose the same at any stage of the municipality's existence.*

Whether this power may be delegated by the legislature to either of the other coördinate departments of government, or the chief officers thereof, or any inferior officer or board therein, is a subject of apparent conflict in the decisions of the courts. But if the legislature authorize the formation of corporations by general law, it may empower courts or boards to do ministerial acts necessary to bring the corporations into being. It has also been held that the legislature may by special provision in the charter designate persons to issue a certificate of incorporation whenever it shall be satisfied that charter conditions have been complied with.

4. Who may grant charters. The charters of municipal corporations may be granted by (a) the Congress of the United States; (b) the state legisla

3 Mattox v. State, 115 Ga. 212, 41 S. E. 709.

4 Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431; Berlin v. Gorham, 34 N. H. 266, LEADING ILLUSTRATIVE CASES.

tures; (c) territorial legislatures, when authorized by Congress.

By the Federal Constitution, Congress is vested with "power to dispose of and make all needful rules and regulations respecting the territory belonging to the United States," and "to exercise exclusive legislation over such district as may become the seat of the Government of the United States. Under this authority, Congress has organized territories, and also chartered cities and towns within their boundaries.

The authority of the state legislatures to incorporate cities and towns as useful and indispensable agencies in the efficient administration of government is inherent and undoubted. All legislative power not granted to Congress is reserved to the states. As a necessary consequence, a state legislature may enact any law not forbidden by the state or Federal Constitution.

General assemblies have exclusive authority to create municipal corporations within the territorial limits of the states, in such manner and under such conditions as they may ordain. Under this exercise of inherent power have been created the municipal corporations of this country, and by these municipalities are administered all local municipal affairs of millions of people, involving an annual expenditure therefor of multiplied millions of dollars.

The territories possess no inherent or sovereign power. Such power as they have has been expressly granted to them by Congress. The general clause granting to the territorial legislature power over "all

rightful subjects of legislation" has been held sufficient to authorize the legislature to create municipal and other corporations within the territorial limits.5

5. Legislative discretion. The exercise of the legislative functions of creating municipal corporations is wholly within the discretion of the legislature, and not subject to the control of the judicial power.

No power resides in any other department of the government to compel the legislature to enact any law; and no record is found of any case in which the aid of the courts was invoked to compel the legislative assembly to perform the constitutional duty so imposed upon it; nor has any case been reported in which a court has assumed to enjoin the corporation from assuming and exercising its franchises for the reason that the legislature had acted unwisely or had abused its discretion in granting the charter of incorporation. In states where there is no constitutional requirement for popular assent to the erection of a municipality, the power of the legislature to create a municipal corporation is absolute, and its discretion not a subject for inquiry or review by the courts.

The general assembly having, in the exercise of its undoubted constitutional power, decided that a certain village or hamlet ought to be incorporated, and enacted the requisite legislation to that end, all inquiry as to the legislative motive or intention, except as appearing from the act itself, is excluded

5 So under the territorial organic act creating the territory of Colorado, the legislative assembly had power to establish a municipal corporation; Deitz v. City of Central, 1 Colo. 323.