itself, or by such agencies or officers as the statute has pointed out. So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates or of any other authority. So strictly is this rule applied, that when a city charter authorized the common council of the city to make by-laws and ordinances ordering and directing any of the streets to be pitched,

levelled, paved, flagged, &c., or for the altering or repair[* 205] ing the same," within such time and in such manner as they may prescribe under the superintendence and direction of the city superintendent," and the common council passed an ordinance directing a certain street to be pitched, levelled, and flagged," in such manner as the city superintendent, under the direction of the committee on roads of the common council, shall direct and require," the ordinance was held void, because it left to the city superintendent and the committee of the common council the decision which, under the law, must be made by the council itself. The trust was an important and delicate one, as the expenses of the improvement were, by the statute, to be paid by the owners of the property in front of which it was made. It was in effect a power of taxation; and taxation is the exercise of sovereign authority; and nothing short of the most positive and explicit language could justify the court in holding that the legislature intended to confer such a power, or permit it to be conferred, on a city officer or committee. The statute in question not only contained no such language, but, on the contrary, clearly expressed the intention of confining the exercise of this power to the common council, the members of which were elected by and responsible to those whose property they were thus allowed to tax.1

This restriction, it will be perceived, is the same which rests upon the legislative power of the State, and it springs from the

out express legislative authority. State v. Ferguson, 33 N. H. 430; Phillips v. Allen, 41 Penn. St. 481. See also Kirk v. Nowell, 1 T. R. 124; White v. Tallman, 2 Dutch. 67; Hart v. Albany, 9 Wend. 588; Peoria v. Calhoun, 29 Ill. 317; St. Paul v. Coulter, 12 Minn. 41.

1 Thompson v. Schermerhorn, 6 N. Y. 92. See also Smith v. Morse, 2 Cal. 524; Oakland v. Carpentier, 13 Cal. 540; Whyte v. Nashville, 2 Swan, 364; East St. Louis v. Wehrung, 50 Ill. 28; Rogers v. Collier, 43 Mo. 359; State v. Jersey City, 1 Dutch. 309; Hydes v. Joyes, 4 Bush, 464; Lyon v. Jerome, 26 Wend. 485; State v. Patterson, 34 N. J. 168; Dillon, Mun. Corp. § 60.

same reasons.

The people in the one case in creating the legislative department, and the legislature in the other in conferring the corporate powers, have selected the depository of the power which they have designed should be exercised, and in confiding it to such depository have impliedly prohibited its being exercised by any other agency. A trust created for any public purpose cannot be assignable at the will of the trustee.1

* Equally incumbent upon the State legislature and these [* 206] municipal bodies is the restriction that they shall adopt no irrepealable legislation. No legislative body can so part with its powers by any proceeding as not to be able to continue the exercise of them. It can and should exercise them again and again, as often as the public interests require.2 Such a body has no power, even by contract, to control and embarrass its legislative powers and duties. On this ground it has been held, that a grant

The charter of Washington gave the corporation authority "to authorize the drawing of lotteries, for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; provided that the amount raised in each year shall not exceed ten thousand dollars. And provided also that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved by him." Per Marshall, Ch. J., speaking of this authority: "There is great weight in the argument that it is a trust, and an important trust, confided to the corporation itself, for the purpose of effecting important improvements in the city, and ought, therefore, to be executed under the immediate authority and inspection of the corporation. It is reasonable to suppose that Congress, when granting a power to authorize gaming, would feel some solicitude respecting the fairness with which the power should be used, and would take as many precautions against its abuse as was compatible with its beneficial exercise. Accordingly, we find a limitation upon the amount to be raised, and on the object for which the lottery may be authorized. It is to be for any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; and it is subjected to the judgment of the President of the United States. The power thus cautiously granted is deposited with the corporation itself, without an indication that it is assignable. It is to be exercised like other corporate powers, by the agents of the corporation under its control. While it remains where Congress has placed it, the character of the corporation affords some security against its abuse, some security that no other mischief will result from it than is inseparable from the thing itself. But if the management, control, and responsibility may be transferred to any adventurer who will purchase, all the security for fairness which is furnished by character and responsibility is lost." Clark v. Washington, 12 Wheat. 54.

2 East Hartford v. Hartford Bridge Co., 10 How. 535; Dillon, Mun. Corp. § 61.

of land by a municipal corporation, for the purposes of a cemetery, with a covenant for quiet enjoyment by the grantee, could not preclude the corporation, in the exercise of its police powers, from prohibiting any further use of the land for cemetery purposes, when the advance of population threatened to make such use a public nuisance. So when "a lot is granted as a place of deposit. for gunpowder, or other purpose innocent in itself at the time; it is devoted to that purpose till, in the progress of population, it becomes dangerous to the property, the safety, or the lives of hundreds; it cannot be that the mere form of the grant, because the parties choose to make it particular instead of general and absolute, should prevent the use to which it is limited being regarded and treated as a nuisance, when it becomes so in fact. In this way the legislative powers essential to the comfort and

preservation of populous communities might be frittered [*207] away into * perfect insignificance. To allow rights thus to be parcelled out and secured beyond control would fix a principle by which our cities and villages might be broken up. Nuisances might and undoubtedly would be multiplied to an intolerable extent." 2

And on the same ground it is held, that a municipal corporation, having power to establish, make, grade, and improve streets, does not, by once establishing the grade, preclude itself from changing it as the public needs or interest may seem to require, notwithstanding the incidental injury which must result to those individuals who have erected buildings with reference to the first grade.

1 Brick Presbyterian Church v. City of New York, 5 Cow. 540; New York v. Second Avenue R.R. Co., 32 N. Y. 261. Compare Kincaid's Appeal, 66 Penn. St. 411; s. c. 5 Am. Rep. 377.

2 Coats v. Mayor, &c., of New York, 7 Cow. 605. See also Davis v. Mayor, &c., of New York, 14 N. Y. 506; Attorney-General v. Mayor, &c., of New York, 3 Duer, 119; State v. Graves, 19 Md. 51; Gozzle v. Georgetown, 6 Wheat. 597; Louisville City R.R. Co. v. Louisville, 8 Bush, 415.

3 Calendar v. Marsh, 1 Pick. 417; Griggs v. Foote, 4 Allen, 195; Radcliffe's Executors v. Brooklyn, 4 N. Y. 195; Graves v. Otis, 2 Hill, 466; O'Connor v. Pittsburg, 18 Penn. St. 187; Reading v. Keppleman, 61 Penn. St. 233; Shinner v. Hartford Bridge Co., 29 Conn. 523; Snyder v. Rockport, 6 Ind. 237; La Fayette v. Bush, 19 Ind. 326; La Fayette v. Fowler, 34 Ind. 140; Keal v. Keokuk, 4 Green (Iowa), 47; Cole v. Muscatine, 14 Iowa, 296; Russell v. Burlington, 30 Iowa, 262; Roberts v. Chicago, 26 Ill. 249; Murphy v. Chicago, 29 Ill. 279; Rounds v. Mumford, 2 R. I. 154; Rome v. Omberg, 28 Geo. 46; Roll v. Augusta, 34 Geo. 326; Reynolds v. Shreveport, 13 La. An. 426; White v.

So a corporation having power under the charter to establish and regulate streets cannot under this authority, without explicit legislative consent, permit individuals to lay down a railway in one of its streets, and confer privileges exclusive in their character and designed to be perpetual in duration. In a case where this was attempted, it has been said by the court: "The corporation has the exclusive right to control and regulate the use of the streets of the city. In this respect, it is endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts for which the power is conferred. An ordinance regulating a street is a legislative act, entirely beyond the control of the judicial power of the State. But the resolution in question is not such an act. Though it relates to a street, and very materially affects the mode in which that street is to be used, yet in its essential features it is a contract. Privileges exclusive in their nature and designed to be perpetual in their duration are conferred. Instead of regulating the use of the street, the use itself to the extent specified in the resolution is granted to the associates. For what has been deemed an adequate consideration, the corporation has assumed to surrender a portion of their municipal authority, and has in legal effect agreed with the defendants that, so far as they may have occasion to use the street for the purpose of constructing and operating their railroad, the right to regulate * and control the use of that [* 208] street shall not be exercised. . . . It cannot be that powers vested in the corporation as an important public trust can thus be frittered away, or parcelled out to individuals or joint-stock associations, and secured to them beyond control." 1

Yazoo City, 27 Miss. 357; Humes v. Mayor, &c., 1 Humph. 403; St. Louis v. Gumo, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Keasy v. Louisville, 4 Dana, 154; Smith v. Washington, 20 How. 135. Compare Louisville v. Rolling Mill Co., 3 Bush, 416. The law would seem to be otherwise declared in Ohio. See Rhodes v. Cincinnati, 10 Ohio, 159; McCombs v. Akron, 15 Ohio, 474; s. c. 18 Ohio, 229; Crawford v. Delaware, 7 Ohio, N. s. 459. Compare Alexander v. Milwaukee, 16 Wis, 256.

1 Milhau v. Sharp, 17 Barb. 435; s. c. 28 Barb. 228, and 27 N. Y. 611. See also Davis v. Mayor, &c., of New York, 14 N. Y. 506; State v. Mayor, &c., 3 Duer, 119; State v. Graves, 19 Md. 351. The consent of the legislature in any such case would relieve it of all difficulty, except so far as questions might arise concerning the right of individuals to compensation, as to which see post, c. 15. In Milhau v. Sharp, supra, it was also held that a corporation, with authority "from time to time to regulate the rates of fare to be charged for the

So it has been held, that the city of Philadelphia exercised a portion of the public right of eminent domain in respect to the streets within its limits, subject only to the higher control of the State and the use of the people; and therefore a written license granted by the city, though upon a valuable consideration, authorizing the holder to connect his property with the city railway by a turnout and track, was not such a contract as would prevent the city from abandoning or removing the railway wherever, in the opinion of the city authorities, such action would tend to the benefit of its police.1

Thus hedged in by the limitations which control the legislative power of the State, these corporations are also entitled to the same protection which surrounds the exercise of State legislative power. One of these is, that no right of action shall arise in favor of an individual for incidental injury suffered by him in consequence of their adopting or failing to adopt legislative action.2 Another is, that the same presumption that they have proceeded upon sufficient information and with correct motives shall support their legislative action which supports the statutes of the State, and precludes

judicial inquiry on these points. These rules, however, [* 209] must be confined to those cases where the corporation is

exercising a discretionary power, and where the reasons which are to determine whether it shall act or not, and if it does, what the action shall be, are addressed to the municipal body carriage of persons," could not by resolution divest itself thereof as to the carriages employed on a street-railway.

1 Bryson v. Philadelphia, 47 Penn. St. 329. Compare Louisville City R.R. Co. v. Louisville, 8 Bush, 415.

2 Radcliffe's Ex'rs v. Mayor, &c., of Brookyn, 4 N. Y. 195; Duke v. Mayor, &c., of Rome, 20 Geo. 635; Larkin v. Saginaw County, 11 Mich. 88; St. Louis v. Gurno, 12 Mo. 414; Griffin v. Mayor, &c., of New York, 9 N. Y. 456; Bennett v. New Orleans, 14 La. An. 120; Weightman v. Washington, 1 Black, 39; Western College v. Cleveland, 12 Ohio, N. s. 375; Barton v. Syracuse, 37 Barb. 292; Wheeler v. Cincinnati, 19 Ohio, N. s. 19; s. c. 2 Am. Rep. 368; Hewson v. New Haven, 37 Conn. 475; Murtagh v. St. Louis, 44 Mo. 480; Commissioners v. Duckett, 20 Md. 468; Carr v. Northern Liberties, 35 Penn. St. 324; Grant v. Erie, 69 Penn. St. 420; s. c. 8 Am. Rep. 272; Sparhawk v. Salem, 1 Allen, 30; Randall v. Eastern R. Corp., 106 Mass. 276; s. c. 8 Am. Rep. 326; Hughes v. Baltimore, Taney, 243.

3 Milhau v. Sharp, 15 Barb. 193; New York and Harlaem Railroad Co. v. Mayor, &c., of New York, 1 Hilton, 562; Buell v. Ball, 20 Iowa, 282; Freeport v. Marks, 59 Penn. St. 253. Compare State v. Cincinnati Gas Co., 18 Ohio, N. s. 262.