Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1879-06-05

that public CORPORATIONS are Included The prohibit
ton OF the Constitution is against the creation,
the Increase or dmnution OF the powers OF corpo-
ration by special law and the direction is OptoVlde
tons hereafter created" The repeal OF general
law, passed IN accordance With this requirement,
would necessarily affect all corporations organized
under It. But the Intention, far as appears, was
not to Interfere with existing public corporations,
however diverse might be provisions of their respect
I've charters. The powers of such corporations
could not it may be- increased or diminished except
sy general law, while there is nothing to prevent
the repeal OF an existing charter by special law,
with view to the reorganization OF the corporate
community under general law. In no other way
could the ola charters be changed except 1ndeed Dy
an indiscrlmlnate repeal. a sweeping innovation
certainly not expressed, and which the courts are
ture might hive enacted, after the adopt
ton of the new constitution, general law. as has
tons, and either not interfere with
PRE-EXISTING CHARTERS,
or only repeal such OF them as chose to organize
under the new act. And 1 am not prepared 10 hold
tuition which prohibits the legislature from repeal
ing at any time the corporate privileges of par
ticular community, whether organized previous or
subsequent 10 the adoption OF the constitution This
is power so essential to sovereignty, and the preser
walton by the State Of its control its instrument
talites OF local rule that il cannot well be consid
cred as cut OF except By positive provision to that
corporation being "dlminlshed by special laws, not
against their entire adjustment. And we may con-
ceive CT cases where, By the yicssudes Of trace
in the case OF Old SaTHm, IN England, or some of
the mining towns in California the special repeal of
u
policy, wnen general repeal WOULD be remedy
worse than the disease. All the authorities are
agreed that municipal CORPORATIONS are within the
absolute control OF the legislature and may be abor
ished at any time 10 It's discretion. Hill Nun. Corp
s. 30-37, and cases cited. The reason is obvious.
Being created as instrumentalitles, arms of the
government, they cannot be continued in that ca
Dacity whenever the public eXigency, OF which the
legislature alone is the judge, demands that they
shall cease 10 act. ut is a unSOnnd and
suId pIopcsltlon that political power conferred by
the legislature can become vested right as against
the government In ans body of men Per Nelson -,
ia People as. Morris, II Wend, 331. ''Munic pal
grants OF lFdnchlse, thls court mas SAID "aTe al
ways subject 70 the control of the legislative power
fer the purpose OF amendment. modification, or en-
Water Works. ) HeslS. 495, 527. see 10 the same
effect, Governor as. M'Ewen, , Hum. 24l; MCOnie
as. Mayof OF Chattanooga, 3 Head BIZ; Lynch as.
LOfland. ColdW. 95, There can not be doubt
therefore that The act of 1879 en- TO- to repeal the
charters OF certain municipal corporations is con-
sttutional, and that
TIE CHARTER OF THE CITY OF MEMPHIS
IS thereby repealed. The act of 1879, ch. IL, to
establish taxing Districts, and the act amendaOTy
thereof. grants Of municipal franchises 10 the
communities within the territorial limits of
ing-distIicis, n order to provide the means OF 10
cal government TheY create the - agencies and
governing tRstrumentalities' or municipal corpor
with the usual legislative executive and Judi
clal powers. The local government is clothed with
all the authority, ana IS manifestly intended to
answer tbs purposes OF a municipal body. In fine.
the taxing gistiictS are municipal corporations
The change OF names can not alter the substance.
TIE law looks to facts not words. And precisely as
1t can make no d1neTence Whet her mountain burgh
IS caiieU city, town, or a village, It is imma-
terial whether an Incorporated municipality
or nominated taxing-district The People ana TaT
ritoFy of the city Ct Memphis, whose charter has
been Tepes led are the same day TencOrp0raied as
municipal corporation. They have organized under
the act. II that act Is not seneTal law within
the meaning OF the constitution, It is void. The
first section or the act provides: That the several
communities embraced IN The territorial limits of
all such municipal corporations In this ate as have
had. or may have, their charters abolished or as
may surTen er the same under the provisions OF this
act are hereby created taxing districts in order to
DTOVlda Ll6 local TlP
safety and general welfare OF such districts" More
over. provision is hereby made, by section 29 for
surrender OF all charters municipal corpora
tons having population OF less than JbiFty-hye
thousand i1habita6ts according 10 the Federai CEN
Of SO, and TO enable the munitirs within
The limits under ths government OF such surIen-
OF The new act. And, during the legislative session
which the Get was iaSsed the legislature repealed
the Charters OF thiTty seven Inuncfii 60 tioSS
al OF whose communities fell at once Within The
provisions OF the act In form, the act is clearly d
General law; and If il BE- conceded that the c1t can
go behind the fern ana determine upon conjecture
as to the motive the legislature OF upon eCIinslc
evidence whether the act is general or special, ana
UNCONSTITUTIONAL.
satisfied that IS In fact intended only for par
ticuar community II is clear, in view of the facts
take judicial notice. that such case Is made by
this record. The act does provide, by general Law
10 Iofin' Iof me ofgahlzaiut lGIO municipal corpo-
ratlO1S OF all communities, heretofore otherwise
Incorporated, who may be brought b. repeal OF
their charters. or VINO mag bring themselves D. 2
surrender OF their chartsrs, unGer its pI0ylsons Ii
Is impossible IN view these facts TO the act
as ID violation OF the prohibition OF the organic
law. Another objection uIged ayaIust the taxing
district acts Is that the municipalities thereby CTC
aiea are 50 cin2rsnt IN some essential Particulars.
from those heretofore Ia existence IN tins STATE aud
so contrary 10 the principles OF LEGAL seif-g1yeTn-
that the ats must be pronounced invalid. Tine
principal points dwell. upon are the mode of APP
poindsg the governing BODY and tne limitation Of
tbs tIXtug power. The history Of muuicip corpC-
Fati1ns in this and me mother country diScIoses
quite diversity OF forms IN their organization.
The governing b0Cg mas been single, double aud
even triple, aud consists Of many or few members.
IL has sometimes oesn appointed By the crown or
legislature SQnet55 elected b The cOTp0ratOTs I'M
der mole or less eX endci elective fanchiss some
times having power 10 MI itS own vacancies, and
sometimes icing hereditary. Dill Nun. corp SIS. &,
lG It Is matter OF common motor ely
that the mayor Of New York con
Iinue1 10 be appoint by the governor
Of the State long alter the IeVo'cti0n and the
sduutiOa of cur present national constitution Aud
We all know, from
OUR STATUTE BOOKS,
that IN this State, until a comparatively recent
period, there was properly qualification requil ed,
both. Mauifestly. the form OF organization, in the
absence OF any constitute nal restraint o. direction,
cannot &c mateiidl. And the workings of the munl-
clpalites of this county under existing forms have
not been SO emineutly successful as 10 Ten0er all
charge undesirable. |. W9uld never do to treat
them as clothed With cast iron innexbilty, unless
cOmpslled 10 do So by positive con, titndonal pTU-
vision. Thee should b5 LETT an opening for I'm
prOyemeDt through The craftsmanship. or even ex-
Incorporated towns mas b. en- bqsed upon the idea of
prototype being the foim OF the State government
Several Of TIRE State CONSTITUTIONS ia order - sgsITe
the psimsneney OF the form, have expressly pro
7dsd that the filling or the municipal Offices either
by election or appointment, shall bslo1g 10 the
LOCAL authority. 2, pie o. HlrbdTt, "a Mich. ~;
Metropolitan Board Of Health as. Hester 81 N. Y,
65l' speed s$ CraTford, Met. 207; People as.
Chicago 81 Ill, Il. Even in these States the pro-
vision OF the Constitution is held to apply only to
officers whose dulles are plainly and exclusively
duties cor. IN the state al large,
or the general public, although exercised
GERS Of poke OF health, of schC 1ls and Tor the adj
miniStfatioR or justice A board of police, it has
been Tepea IDLY held, may be appointed b7 the state
Without FeIeTenc9 10 the wishes OF the c0rporaton
with power to estiat the expense Of the police and
amount so eStimatcd. People Is. Draper, , \. Y,
532; PEG lie Metropolitan LJlice board. n. y,
ISSj balsimoIe u.s. Board OF poll p 10 Nd 3t9i
Police commissioners IS Louisville, 3 Bush, 551i
People as. MahaGey. 3 Mich, 49,; Diamond as.
Cain, 2 La An, POS These olses are instructive
ia showing the nCceSslty Of the government of
THE STATE
IN erveBtug for the protection of the local COMMIT
mites gaiust The oppression aud nethcency OF their
own servants, aud how impOIiIlc 1t NAV sometimes
he TO hamfet legislative action by consti utona' re-
straint5. the absence OF such restraints, and
cOnsttutOL cont4'us no1e, lne maxim OF lepUoIlsau
nnleLt tDaL local d1aiS Snoud Do managed IN
the To- i districts is subject. ali the authorities
asrGs u such eI cptlogS as tug ItsiSlatiYe power
snail see ht 10 make The legislature has the power
TO do whatever is not exp -ssy or Dy necessary i'm
plcatlon, forbidden by the constitution. city Of
memphis as Memphis wall FOik ), . HeisAsll 225i
Rope as. DeaieTick. ) Hume, g; Bell rs. Bank of
Nashville, Peck. 1885, Knoxville s1d Ohio railroad
company as Hicks, | Tenn. / :. Reports, :2t}S 1t
is for that b. iy Oct fmire, ? the direct repre-
sentatives CT the people, what The public good re
QuiTts Tie LOur' en- only lat -Itel5 when their
l. gislatOn has Yioat the t1nstitutiOn, not other
wise THE coz IS are not at Liberty. says MI Cooley,
70 declare It void b il Is. Ia their opIn-
Ion. opposed 10 spirit supposed b. pyve IL the con-
stitdtfOn. but not EXPIRE SGD in 6Ou.s." COnSt. Linn
III, citing L, 9ple Fisher, "a Wend. 200; Coch
ian u.s. YauSurlay, 20 Wend. 3Sl; ~yDehamer as.
P ople, ID Wend. 39l, 453, AT; People rs. Gal
lagher. Mich. PA. That is q spirit which II is
difficult satisfactorily TO mateia even by the
most skillidl judicial expert. Whenever
THE LEGISLATURE,
fresh fIom the people, with an unlimited elective
franchise departs from cenOcratic usages, the pub
lie ex gency must be great which demands so unusu-
al a remedy. Tne courts have no right 70 interfere
unless there has been violation OF the organic law.
The act of 1879 chapter eOlfeF5 the legislative
power of the municipal government, designated
the TaXiugDiStTitt, upon Legislative council"
consisting OF the fire and police board, three in
number and the yisOrs Of the board Of public
works. I've in number and clothes one OF the COM
mtSSiOuerS with the necessary executive and judicial
authority. Two of the commissioners are appointed
by the governor with the consent OF the senate, and
the tflid is elected by the qualified voters Of the
Taxing District. one OF the SUPERVISORS IS appointed