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an illustration from a private corporation : It has been held that a by-law of a bank, that all payments made or received by the bank must be examined at the time, and mistakes corrected before the dealer leaves, was unreasonable and invalid, and that a recovery might be had against the bank for an over-payment discovered afterwards, notwithstanding the by-law. So a by-law of a town, which, under pretence of regulating the fishery of clams and oysters within its limits, prohibits all persons except the inhabitants of the town from taking shell-fish in a navigable river, is void as in contravention of common right.2 * And [* 203] for like reasons a by-law is void which abridges the rights and privileges conferred by the general laws of the State, unless express authority therefor can be pointed out in the corporate charter. And a by-law which assumes to be a police regulation, but deprives a party of the use of his property without regard to the public good, under the pretence of the preservation of health, when it is manifest that such is not the object and purpose of the regulation, will be set aside as a clear and direct infringement of the right of property without any compensating advantages.

1 Mechanics' and Farmers' Bank v. 8 Dunham v. Trustees of RochesSmith, 19 Johns. 115; Gallatin o. ter, 5 Cow. 462; Mayor, &c. of New Bradford, 1 Bibb, 209. Although York v. Nichols, 4 Hill, 209. See these are cases of private corpora- Strauss v. Pontiac, 40 111. 301. tions, they are cited here because the 4 By a by-law of the town of tules governing the authority to make Charlestown all persons were proby-laws are the same with both classes hibited, without license from the of corporations.

selectmen, from burying any dead * Hayden r. Noyes, 5 Conn. 391. body brought into town on any part As it had been previously held that of their own premises or elsewhere every person has a common-law right within the town. By the court, to fish in a nåvigable river or arm of Wilde, J.: “A by-law to be valid the sea, until by some legal mode of must be reasonable ; it must be legi, appropriation this common right was fidei, rationi consona. Now if this extinguished, — Peck o. Lockwood, regulation or prohibition had been 5 Day, 22, — the by-law in effect limited to the populous part of the deprived every citizen, except resi- town, and were made in good faith dents of the township, of rights which for the purpose of preserving the were rested, so far as from the nature health of the inhabitants, which may of the case a right could be vested. be in some degree exposed to danger See also Marietta v. Fearing, 4 Ohio, by the allowance of interments in the 427. That a right to regulate does midst of a dense population, it would not include a right to prohibit, see have been a very reasonable regulaalso Ex parte Burnett, 30 Ala. 461; tion. But it cannot be pretended Austin v. Murray, 16 Pick. 121. And that this by-law was made for the see Milhau v. Sharp, 17 Barb. 435, preservation of the health of the in28 Barb. 228, and 27 N. Y. 611. habitants. Its restraints extend many

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Another and very important limitation which rests upon municipal powers is that they shall be executed by the municipality

miles into the country, to the utmost of the burying-ground was approprilimits of the town. Now such an ated. The illegality of the by-law is unnecessary restraint upon the right the same, whether it may deprive one of interring the dead we think essen- of the use of a part or the whole of tially unreasonable. If Charlestown his property; no one can be so demay lawfully make such a by-law as prived, unless the public good rethis, all the towns adjoining Boston quires it. And the law will not allow may impose similar restraints, and the right of private property to be inconsequently all those who die in vaded under the guise of a police regBoston must of necessity be interred ulation for the preservation of health, within the precincts of the city. That when it is manifest that such is not this would be prejudicial to the health the object and purpose of the regulaof the inhabitants, especially in the tion. Now we think this is manifest hot seasons of the year, and when from the case stated in regard to the epidemic diseases prevail, seems to by-law in question. It is a clear and be a well-established opinion. Inter direct infringement of the right of ments, therefore, in cities and large property, without any compensating populous towns, ought to be discoun- advantages, and not a police regulatenanced, and no obstacles should be tion made in good faith for the prespermitted to the establishment of ervation of health. It interdicts, or cemeteries at suitable places in the in its operation necessarily intercepts, vicinity. The by-law in question is the sacred use to which the Catholic therefore an unreasonable restraint burying-ground was appropriated and upon many of the citizens of Boston, consecrated, according to the forms of who are desirous of burying their the Catholic religion; and such an indead without the city, and for that terference, we are constrained to say, reason void. And this by-law would is wholly unauthorized and most unseem to be void for another reason. reasonable." Austin v. Murray, 16 A by-law for the total restraint of Pick. 125. So in Wreford v. People, one's right is void; as if a man be 14 Mich. 41, the common council of barred of the use of his land. Com. Detroit, under a power granted by Dig. By-Law, c. 4. The land where statute to compel the owners and occuthe bodies were interred was the land pants of slaughter-houses to cleanse of the Catholic Bishop of Boston, pur- and abate them whenever necessary chased by himn in 1830, and then con- for the health of the inhabitants, assecrated as a Catholic burying-ground, sumed to pass an ordinance altogether and has ever since been used as such, prohibiting the slaughtering of anifor the interment of Catholics dying mals within certain limits in the city: in Charlestown and Boston. It is true and it was held void. See further the by-law does not operate to the State v. Jersey City, 5 Dutch. 170. total restraint or deprivation of the Upon the whole subject of municipal bishop's right, but it is a total re- by-laws, see Angell & Ames on Corp. straint of the right of the burying c. 10; Grant on Corp. 76 et seq. the dead in Boston, for which a part See also Redfield on Railways (3d ed.)

itself, or by such agencies or officers as the statute has pointed
out. So far as its functions are legislative, they rest in the dis-
cretion and judgment of the municipal body intrusted with them,
and that body cannot refer the exercise of the power to the dis-
cretion and judgment of its subordinates or of any other author-
ity. 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-
ing the same, “ within such time and in such manner as [* 205)
*

[
they may prescribe under the superintendence and direc-
tion 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 com-
mon 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 con-

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Vol

. I. p. 88; Dillon, Mun. Corp. c. 12. previous to that time failed to observe The subject of the reasonableness of the code of medical ethics prescribed by-laws was considered at some length by the society for its members. Muin People v. Medical Society of Erie, nicipal by-laws may impose penalties 24 Barb. 570, and Same v. Same, 32 on parties guilty of a violation thereof, N. Y. 187. In the first case, it was but they cannot impose forfeiture of held that a regulation subjecting a property or rights, without express member of the County Medical Society legislative authority. State v. Fer

. to expulsion, for charging less than guson, 33 N. H. 430; Phillips v. Allen, the established fees, was unreasonable 41 Penn. St. 481. See also Kirk v. and void. In the second, it was de- Nowell, 1 T. R. 124; White v. Tallcided that where a party had the pre- man, 2 Dutch. 67; Hart v. Albany, 9 scribed qualifications for admission to Wend. 588 ; Peoria v. Calhoun, 29 the society, he could not be refused III. 317; St. Paul v. Coulter, 12 Minn. admission, on the ground of his having 41.

trary, 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 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 Thompson v. Schermerhorn, 6 improvements in the city, and ought, N. Y. 92. See also Smith v. Morse, 2 therefore, to be executed under the Cal. 524; Oakland v. Carpentier, 13 immediate authority and inspection Cal. 540; Whyte v. Nashville, 2 Swan, of the corporation. It is reasonable 364; East St. Louis v. Wehrung, 50 to suppose that Congress, when grantIII. 28; Rogers v. Collier, 43 Mo. 359; ing a power to authorize gaming, State v. Jersey City, 1 Dutch. 309; would feel some solicitude respecting Hydes v. Joyes, 4 Bush, 464; Lyon v. the fairness with which the power Jerome, 26 Wend. 485; State v. Pat- should be used, and would take as terson, 34 N. J. 168; State v. Fiske, many precautions against its abuse as 9 R. I. 94; Kinmundy v. Mahan, 72 was compatible with its beneficial esIII. 462; Davis v. Reed, 65 N. Y. 566; ercise. Accordingly, we find a limiSupervisors of Jackson v. Brush, 77 tation upon the amount to be raised, Ill. 59; Thomson v. Booneville, 61 and on the object for which the lottery Mo. 282; Dillon, Mun. Corp. $ 60. may be authorized. It is to be for

2 The charter of Washington gave any important improvement in the the corporation authority" to author- city, which the ordinary funds or ize the drawing of lotteries, for effect- revenue thereof will not accomplish; ing any important improvement in and it is subjected to the judginent the city, which the ordinary funds or of the President of the United States. revenue thereof will not accomplish; The power thus cautiously granted is provided that the amount raised in deposited with the corporation itself, each year shall not exceed ten thou- without an indication that it is assignsand dollars. And provided also that able. It is to be exercised like other the object for which the money is corporate powers, by the agents intended to be raised shall be first the corporation under its control. submitted to the President of the While it remains where Congress has United States, and shall be approved placed it, the character of the corpo. by him.” Marshall, Ch. J., speaking ration affords some security against of this authority, says : " There is its abuse,

some security that no great weight in the argument that it other mischief will result from it than is a trust, and an important trust, is inseparable from the thing itself

. confided to the corporation itself, for But if the management, control, and the purpose of effecting important responsibility may be transferred to

of

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* Equally incumbent upon the State legislature and (* 206] these 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. 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 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 away into * per- [* 207] fect 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." 3

And on the same ground it is held, that a municipal corporation, having power to establish, make, grade, and improve streets, any adventurer who will purchase, all 32 N. Y. 261. Compare Kincaid's the security for fairness which is fur- Appeal, 66 Penn. St. 411; 8. c. 5 nished by character and responsibility Am. Rep. 377. is lost." Clark v. Washington, 12 3 Coats v. Mayor, &c. of New

York, 7 Cow. 605. See also Davis * East Hartford v. Hartford Bridge v. Mayor, &c. of New York, 14 N. Y. Co.

, 10 How. 535; Dillon, Mun. Corp. 506; Attorney-General v. Mayor, &c. $ 61.

of New York, 3 Duer, 119; State v. · Brick Presbyterian Church v. Graves, 19 Md. 51; Gozzle v. GeorgeCity of New York, 5 Cow. 540; New town, 6 Wheat. 597; Louisville City York v. Second Avenue R. R. Co., R. R. Co. v. Louisvile, 8 Bush, 415.

Wheat. 54.

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