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includes, therefore, not only the states of the federal union, but the government of the United States itself. The State exists by itself and for itself, and without the consent of any one except the people thereof. It is not created or established under an act of legislation, or by the consent of any superior power. In America, at least, it derives its power exclusively from the consent of the people. This consent is essential, and some lawful expression of it must be given to authorize its creation. If it have not the attribute of sovereignty, it is not a State. That is the power which creates corporations. It controls and dissolves them. This sovereign power is that which makes it a State, and not a corporation, which is a derivative creation, owing its existence and powers to the State.36 It is, of course, not to be denied that in very many of their attributes, functions, and powers, the State and municipal corporation bear close resemblance; 37 and by one seeking resemblance only they might readily be mistaken for the same kind of political entity. But after tracing all these points of similarity, there still remains the distinguishing and ineradicable difference that one is creator and the other is creature.38

Harker, 34 Iowa, 84; Delafield v. Illinois, 2 Hill (N. Y.) 159; TEXAS v. WHITE, 7 Wall. (U. S.) 700, 19 L. Ed. 227.

34 See Declaration of Independence, first and second paragraphs. 35 LUTHER v. BORDEN, 7 How. (U. S.) 1, 12 L. Ed. 581; Bank of Augusta v. Earle, 13 Pet. (U. S.) 519, 10 L. Ed. 274.

But see State of Indiana v. Woram, 6 Hill (N. Y.) 33, 40 Am. Dec. 378; Dikes v. Miller, 25 Tex. Supp. 281, 78 Am. Dec. 571; Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225, 41 Am. Dec. 549; People v. St. Louis, 10 Ill. 351, 48 Am. Dec. 339.

36 Ante, § 1; Thomp. Priv. Corp. §§ 1, 15, 35; Clark, Priv. Corp. 84, 13 to 18, inc., Appendix.

37 Delafield v. Illinois, 2 Hill (N. Y.) 159: "A state is a legal being, capable of transacting some kinds of business like a natural person." Indiana v. Woram, 6 Hill (N. Y.) 33, 40 Am. Dec. 378. See Lowell, Stocks, § 2, where he says: The parallel, in

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deed, between a state and a corporation, is very close."

38 BERLIN v. GORHAM, 34 N. H. 266; City of Paterson v. Society, 24 N. J. Law, 385; HOPE v. DEADERICK, 8 Humph. (Tenn.) 1. 47 Am. Dec. 597.

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TERRITORIES.

36. A territory is not a municipal corporation.

A territory of the United States, by its very nature, belongs to a distinct class of political bodies. It is not self-existent.3° The consent of the population is not required to its creation, organization, or political existence. It is created by a sovereign act of legislation,40 but its area is too extensive for a municipality. Under congressional grant it may possess the great powers of local legislation, including the creation of corporations, public and private.1 But the judicial and executive departments are administered by appointees of the federal government, so that the power of local self-government in the territory is partial only.2 The territorial powers of legislation usually granted by Congress are entirely subject to the congressional will.43 Congress may at any time abrogate the territorial laws. It may itself enact laws for the territorial government in any or all of its details. It may grant char

39 VINCENNES UNIVERSITY v. INDIANA, 14 How. (U. S.) 273, 14 L. Ed. 416; Miners' Bank v. Iowa, 12 How. 1, 13 L. Ed. 867; Brittle v. People, 2 Neb. 198.

40 Williams v. Bank, 7 Wend. (N. Y.) 539.

41 PEOPLE EX REL. v. BUTTE, 4 Mont. 179, 1 Pac. 414, 47 Am. Rep. 346; Deitz v. Central, 1 Colo. 323.

42 Territory v. Guyott, 9 Mont. 46, 22 Pac. 134.

48 Rogers v. Burlington, 3 Wall. (U. S.) 662, 18 L. Ed. 79; RIDDICK V. AMELIN, 1 Mo. 5; Williams v. Bank, 7 Wend. (N. Y.) 539.

44 In the case of RIDDICK v. AMELIN, 1 Mo. 5 (decided in 1821, about the time of the admission of Missouri to statehood), the objection was made that such a Legislature (territorial) was not sovereign, and that nothing short of sovereign power could create a corporation. The answer given was that Congress could give and had given the power to legislate on such subjects. In an act of Congress (Act March 2, 1867, c. 150, § 1, 14 Stat. 426; Rev. St. U. S. § 1889), it was provided that the legislative assemblies of the several territories of the United States shall not * grant private

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ters to corporations, private or municipal, and may create. new quasi corporations, and divide or consolidate existing Ones, 45 Congress possesses over the territories all the power which the state possesses over public corporations, quasi and municipal, and thereby the territory is given a much closer resemblance than the state to municipal corporations. The act of Congress under which it is authorized, commonly called the "Organic Act," is its charter of existence; and, like the municipality, the territory may exercise only such powers as are granted by the charter. But it has none of the commonlaw qualities of a corporation which inhere in the municipal corporation, and could, at most, be called with semblance. of propriety a quasi corporation. It is, however, a peculiarly American political entity of statutory origin, and is as distinctly characterized by its name "territory" as the municipal corporation is by the term "municipality."

Quasi Corporations.

As already shown,48 counties, towns, townships, and school districts are not municipal corporations, but only quasi corporations, with limited statutory powers and liabilities, and not subject to the doctrines of the law peculiarly applicable to municipal corporations. This phrase will be used herein in its strict and proper sense, as referring to chartered and organized local governments of towns and cities.

charters or especial privileges.

In Seattle v. Tyler, Wash. T. 1877, this section was held by Chief Justice Lewis, of that territory, to extend to and embrace municipal corporations within its prohibition.

451 Dill. Mun. Corp. (4th Ed.) § 38; CITY OF GUTHRIE v. TERRITORY, 1 Okl. 188, 31 Pac. 190, 21 L. R. A. 841; Alger v. Hill, 2 Wash. St. 344, 27 Pac. 922; Deitz v. Central, 1 Colo. 332.

46 RIDDICK v. AMELIN, 1 Mo. 5; Williams v. Bank, 7 Wend. (N. Y.) 539.

47 Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; First Nat. Bank v. Yankton, 101 U. S. 129, 25 L. Ed. 1046; Murphy v. Ramsey, 114 U. S. 15, 5 Sup. Ct. 747, 29 L. Ed. 47.

48 Ante, §§ 7, 29.

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HISTORY.

37. The American municipal corporation, though differing in many respects from its norm, the English municipality of the eighteenth century, has the same corporate character and attributes, and its law may be studied to advantage in the light of municipal history.

The history of the development of the municipality, which had its origin under Roman rule, in the ancient Italian towns, of its struggles for existence during the storm and stress of the Feudal Ages, of the sturdy resistance of burgher and citizen against the tyranny and exaction of iord and King, of the undying love of home rule among Germanic peoples, and especially of the struggle of these freedom-loving communities in England with the despotism of the house of Stuart, which claimed to rule by divine right, is interesting and instructive; but the limits of this handbook do not permit of extended notice. A thorough exposition of this subject will be found in Hallam's Middle Ages, Hume's History of England,50

and Green's History of the English People.51

Suffice it here to say that the elements which contribute love of home rule to the municipality are of German origin, and those contributing to it power as an organism come from Rome. Uniting these two elements, we find the essentials of the municipality; its particular form, powers, and life are matters of environment. The town was alike the product and exponent of peaceful industry; it was also the prey of the conquering warrior.52 Municipal life had shown signs of considerable activity under the Saxon Kings; but Norman

49 Volume 3, c. 8, pt. 1.

50 Volume 1, App. 2.

51 In Harper's edition of the Short History, this matter will be found on pages 90-95, 129, 130, 157, 175-178, 190-200, 272, 402, 662665, 843. See, also, 1 Dill. Mun. Corp. §§ 1-8.

52 The larger portion of extraordinary war revenues was obtained by levies upon the cities. The wise lord or monarch preserved the plant, but took the product.

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conquest and Norman rule were repressive and stifling. The peaceful citizen was no match for the mailed warrior, and for a long time municipal life was low, unfruitful, and uninviting. The life which had before been seen in the streets of the cities and towns was then attracted to the feu lal castle, where were to be found the strong men and beautiful women, the wealth, the display, and the excitement of existence. Still the towns endured, and London never ceased to grow.53 Gradually they began to be recognized as holding the balance of power between contending Kings and nobles, and the want of the one or the other for men and money afforded the towns their opportunity. Under the guilds the tradesmen and artisans had acquired both property and the habit of organization. These not only commanded respect, but gave them power to demand and obtain recognition and confirmation of their customary rights and privileges. Gradually they grew in importance, until in the thirteenth century Simon de Montfort summoned two citizens from each borough to sit in Parliament.55 Before the close of the following century this summons had become regular and habitual, and the cities, boroughs, and leading towns of England were as firmly established as were the shires in their right of parliamentary representation. At first these burghers were the staunch supporters of the King in his efforts to break the power of the great barons; but later, when the royal power under the Tudors and the Stuarts was overshadowing all other forces in the government, the instinct of self-preservation led the towns to side with the yeomen and gentry in their struggle with absolutism, and thereby advanced their interests.50

In early times every freeman settling in the borough and

531 Norton, Hist. London, c. 20; Green, Short Hist. Eng. People, c. 6, § 1.

543 Adam Smith, Wealth of Nations, c. 3.

55 Green, Short Hist. Eng. People, c. 4, § 2.

56 Rex v. City of London, Mich., 33, Car. II; Case of City of London, 8 How. St. Tr. 1340.

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