THE BONDAGE OF CITIES - The Community Environmental Legal ...

390 MUNICIPAL LIBERTY.4. It is held that the legislature may take city water works,or gas works, or other municipal properties entirely out of thehands of the city,and give the management of them to stateofficers. 15. A franchise granted by the legislature to a city or townis not a contract. A franchise to establish, own and operateferries, water works, gas works, electric plants, street railways,etc., is a franchise if granted to an association of stockholdersconstituting a private corporation, and is protected by theFederal Constitution, but is not a franchise if granted to anassociation of individuals constituting a city,and is not protectedby the constitution, or anything else, but may be taken2without compensation at the pleasure of the legislature.corporationsare creatures of thelegislature. They have only such powers as may be given tothem by the legislature, which may, at its pleasure, alter,abridge or annul their powers and privileges,divide them, orconsolidate two or more of them into one without their assent,attach a condition to their continued existence, or abolish themcompletely. 3 Imagine Congress passing an act to annexRhode Island to Connecticut, or divide New York state, ordeclare that Illinois shall no longer be a state! Yet such anact enforced without the assent of the states affected would bean apt parallel to the arbitrary powers possessed and exercised6. The charter of a private corporationis held to be a contractwithin the constitution, but the charter of a public corporationis not. Municipalby many of our legislatures in respect to cities.These illustrations of municipal dependence seem sufficientto justify the conclusion that our cities are in bondage sub-(') 44 Oh. St. 348; 7 Houst. (Del.) 44; some courts hold otherwise seebelow.(-) East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511. Legislativeact taking away the Hartford ferry justified on the broad ground thatthe grant of a franchise to a municipality is not a contract. See also 77 Va.214, aud compare 10 Barb. (N. Y.) 223.f) See 102 U. S. 472, 511; 93 U. S. 266; 4 Wheat. 518; 74 N. Y. 161, 166;and Judge Dillon's famous legal text book on Municipal Corporations, 54,64, 85, 89, the highest authority on the subject.A municipality is not only a creature of enumerated powers, but thosepowers are for the most part strictly construed. It Is held tnat a municipalcorporation can exerciae no powers except those granted to it In expresswords, or necessarily or fairly implied in or incident to the powers expressed,or indispensable to the declared objects and purposes of the corporation,and "any reasonable doubt concerning the existence of the powerIs resolved by the courts against the municipal corporation, and the powerIB denied." Von Schmidt v. Widber, 105 Cal. 151, 157.