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Springfield Railroad Company was given to and confirmed in the combined company, and all the franchises, rights, and property of the former were transferred to and became vested in the latter; so that the bonds were deliverable to them of right.

Again, it is said that the action should have been brought in the name of the New London, Willimantic and Palmer Railroad Corporation, payees in the bonds. But the bonds are made payable to bearer, and are legally negotiable. It is quite too late, after the accumulated decisions in our books of the highest authority, to urge this common-law objection as to such bonds. The bonds, as we say, were made payable to bearer, that they might be delivered to the New London, Willimantic and Palmer Railroad Corporation to be sold. They were of course to be put into the market, and their value depended very much upon their being negotiable like a note. Without it, they would have scarcely been marketable or valuable. It is true that, in most cases, railroad bonds are expressly authorized, in the charters of the companies, to be sold and transferred; but when this is not expressly declared, it is given by implication: so that bonds of this character are, at the present time, held to be negotiable, as much as bills of exchange. The old maxim that a chose in action cannot be assigned in law, has long since been exploded as to railroad bonds. We refer only to a few cases in support of the proposition. Edwards on Bills, 60; Knox County Commissioners v. Aspinwall, 21 Howard, 539; Craig v. Vicksburg, 31 Miss., 216; Carr v. Lefevre, 27 Penn. S. R., 413. The statute passed in 1845 is not, in our opinion, applicable to this case. Probably it does not embrace municipal corporations at all. Besides, the resolution of 1847 is excluded by the exceptions in the Act of 1845.

We do not advise a new trial.

CHAPTER VIII.

DELAWARE.

THE following is the provision in the Constitution in this State, defining the creation of corporations. There seems to be no provision, making a distinction between private and public corporations; hence, we may infer, that the people preferred to rely upon the wisdom of the Legislature.

SECTION 17, ARTICLE II. - No Act of incorporation, except for the renewal of existing corporations, shall be hereafter enacted without the concurrence of two-thirds of each branch of the Legislature, and with a reserved power of revocation by the Legislature; and no Act of incorporation which may be hereafter enacted shall continue in force for a longer period than twenty years, without the re-enactment of the Legislature, unless it be an incorporation for public improve

ment.

The decisions of the higher courts of the State relating to the law of Municipal Bonds are few. The case of Hough v. The City of Wilmington, decided by Chancellor BATES in August, 1872, is the only one directly in point. And in our treatise we find it to be chiefly important as defining the discretionary power of municipalities, and as establishing that the action of the authorities of a municipal corporation, within their powers, where there is no fraud and private rights are not infringed, will not be inquired into by the courts, nor will the courts entertain suggestions that such action is contrary to public policy.

We give the decision of the learned Chancellor at the conclusion of this article.

Another case, that of Rice v. Foster, is often cited, where the validity of Municipal Bonds impinges upon questions growing out of the right of the Legislature to* submit the question to a political division, whether they will adopt or reject, a proposition suggested by the legislative authorities, and on its adoption, to become a law.

From these and similar decisions, the following most important question arises: By what authority may municipalities exercise the discretionary powers of legislation,

and to what extent?

A marked distinction is made between the legislative power and the rights and immunities that rest upon the grant of certain parts of that power. It is to be inferred that, while the Legislature cannot alienate or dissever the peculiar elements of force that preserve its distinguishing character as an original branch of sovereignty, it may, nevertheless, authorize agents to exercise powers in the nature of those that mark its distinctive functions. Thus, upon the creation of a municipal corporation, while it can utterly destroy the corporate existence of the lesser body, by withdrawing its charter, so long as it permits the latter to remain uncancelled, it permits, also, the exercise of certain necessary legislative

powers.

The necessary truth of these principles will be apparent upon a consideration of the true character of the Legislature. All original power, of every nature, being in the people, and one form of that power being exercised alone by the legislative branch, it is clear that there can be no absolute grant of it to any agent; for the Legislature is, in no fanciful sense, merely an agent of the people.

But, nevertheless, it is alike the privilege and duty of the Legislature to adopt all reasonable means, within the limits of the organic law that controls it, to carry

out the true objects of government, and to promote the comfort and happiness of the people. And when it creates an agency, in the form of a municipal corporation, it creates "a Government within a Government." It gives to the latter Government an organic law-an enumeration of principles - which is called a " charter." And, in the construction of that "charter," the same rules obtain, as in the construction of the organic law of the supreme authority. The "charter" must be taken to embrace "implied powers;" and so long as it remains unrevoked, those "implied powers" must continue to exist. They are controlled; only, by the terms of the charter and the supreme organic law to which every part of the governmental system must be subservient.

An eminent jurist thus treats of this subject:

"The objection, that the Legislature cannot constitutionally delegate to a local corporation the power of local legislation and taxation for local purposes, is founded upon a misconception of the nature and extent of legislative power granted to the legislative department, and is disproved by the practice of constitutional governments everywhere." It is the legislative power of the Commonwealth, excluding the power over the Constitution itself, that is vested in the Legislature, subject only to the restriction above referred to. That power undoubtedly includes the power of erecting local corporations, to be invested with subordinate powers, essential to the local convenience, and to the enforcement of good order and peace within the corporate territory. A special local taxation, as already intimated, follows justly and naturally, as the correlative of the separate association of the incorporated community for purposes essentially peculiar to itself, and in which the Commonwealth at large has only such partial and indirect interest as the whole community, is supposed to have, in the prosperity and good

government of every part. While, therefore, the Legislature, as the depository of the general legislative power, may and should, in the erection and regulation of these* subordinate governments, which are but instruments for conveniently carrying out the objects of the State Government, confer only such powers as are necessary for the local convenience, and limit the powers of taxation so as to prevent unnecessary and oppressive burdens, it seems more convenient and appropriate, and more accordant with the spirit of our institutions and polity, that the power of local regulation and of taxation for local purposes, should be exercised by the local authorities, than by the central Government. And although it is true that the Legislature cannot constitutionally delegate the general powers of legislation, or any portion of them, yet the power of erecting municipal corporations with powers of local regulations and taxation, being itself a part of the general legislative power, may be exercised at the discretion of the Legislature, without a violation of the Constitution or principles of the Government. (Williamson v. Commonwealth, 4 B. Monroe, 150; Keasy v. City of Louisville, 4 Dana, 525; Lexington v. McQuillan's heirs, 9 Dana; Tesh v. Commonwealth, 4 Dana, 525; Louisville v. Hyatt, 2 B. Monroe, 177; Same v. Same, 5 B. Monroe, 199.) 1

In many of the Constitutions of the States will be found the following or like provisions: "The corporate authorities of counties, townships, school-districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes." Some of the States limit the amount to a certain percentage of the assessment of the taxable property, while others leave it

1 In Winn v. Macon, reported in extenso under Chap. X., Georgia, will be found a construction affecting the power of a city to bind the public property, where it enjoyed a liberal discretion as to certain objects.

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