Argument for Defendant in Error.

196 U. S.

pressly or by implication granted by the State. Spaulding v. Peabody, 153 Massachusetts, 129; Opinion of Justices, 150 Massachusetts, 592; Swift v. Falmouth, 167 Massachusetts, 115; Bangs v. Snow, 1 Massachusetts, 180, 189.

Without express legislative authority a town cannot appropriate money for defense against an invading enemy, Stetson v. Kempton, 13 Massachusetts, 272, 279; nor to build a county highway, Parsons v. Goshen, 11 Pick. 396; nor to celebrate Cornwallis's surrender, Tash v. Adams, 10 Cush. 252; nor to purchase company uniforms, Claflin v. Hopkinton, 4 Gray, 502; nor to celebrate the Fourth of July, Hood v. Lynn, 1 Allen, 103; Gerry v. Stoneham, 1 Allen, 319; Morrison v. Lawrence, 98 Massachusetts, 219; nor to pay expenses incurred in promoting or opposing the annexation of one municipality to another. Minot v. West Roxbury, 112 Massachusetts, 1; Coolidge v. Brookline, 114 Massachusetts, 592.

The powers of a municipality are only such as they can be clearly shown to possess. Minturn v. Lane, 23 How. 435; Detroit v. Citizens' Street Ry. Co., 184 U. S. 368, 388. Every reasonable doubt is against the power. This doctrine is vital to the public welfare. Pearsall v. Great Northern Railway Co., 161 U. S. 646, 664; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 666; Citizens' Street Ry. Co. v. Detroit Ry. Co., 171 U. S. 48, 54.

Assuming that the board of aldermen impose the conditions in form and manner as they attempted to do, nevertheless they represented said city in its corporate capacity as a mere governmental agency, and not in its private corporate capacity, so that, if said city became the obligee in any contract to which the railway company was obligor, the rights of said city thereunder were held not as its private property, but in trust as a governmental agency for the public in general, and were, therefore, subject at all times to the control of the legislature. Cities have almost no private property. South Dakota v. North Carolina, 192 U. S. 286; 2 Dillon Mun. Corp., 656, 683; Brimmer v. Boston, 102 Massachusetts, 19; Agawan v. Hampden County, 130 Massachusetts, 528, and cases cited on p. 530;

citing Freeland v. Hastings, 10 Allen, 570, 579; Rawson v. Spencer, 113 Massachusetts, 40, 45; Stone v. Charlestown, 114 Massachusetts, 214, 223; Coolidge v. Brookline, 114 Massachusetts, 592; Hill v. Boston, 122 Massachusetts, 344, 349, 355; Laramie v. Albany, 92 U. S. 307; Tippecanoe Commissioners v. Lucas, 93 U. S. 108, 114; New Orleans v. Clark, 95 U. S. 644, 654; Meriwether v. Garrett, 102 U. S. 472; Prince v. Crocker, 166 Massachusetts, 347; Browne v. Turner, 176 Massachusetts, 9.

The burden of proof is strongly upon the party asserting such private ownership by a municipality. Proprietors of Mt. Hope Cemetery v. Boston, 158 Massachusetts, 509, as cited and distinguished in Browne v. Turner, 176 Massachusetts, 9, 13.

Whatever may have been the state of the law at the time the extensions of location involved in these suits were granted, the legislature, by enacting c. 578 of the acts of 1898, relieved defendant from obligation to keep in repair any part of the surface material of the streets included in any of said extended locations.

Assuming the statute abrogated the obligations (if they were such) set out in the five cases, the legislature of Massachusetts did not, in so abrogating the obligations, violate any provisions of the Constitution of the United States. If such obligations were property such property was not private municipal property and was subject to legislative control. East Hartford v. Bridge Co., 10 How. 511; Laramie County v. Albany County, 92 U. S. 307; Meriwether v. Garrett, 102 U. S. 472; Browne v. Taylor, 176 Massachusetts, 9, and cases cited on p. 14; People v. Kerr, 27 N. Y. 188; Clinton v. Cedar Rapids R. Co., 24 Iowa, 455.

MR. JUSTICE PECKHAM, after making the foregoing statement of facts, delivered the opinion of the court.

The defendant in error makes no objection to the form in

Whether

which the question to be decided comes before us. one or the other action or proceeding is proper and appropriate need not, therefore, be considered.

The contention on the part of the plaintiff in error is that, by virtue of the restrictions or conditions placed by it upon granting the various extensions of locations of the tracks of the railroad company, and by the acceptance of the same by the company, a contract was entered into between the city and the railroad company, which could not be altered without the consent of both parties, and that as the city had never consented to any alteration of the obligation of the railroad company to make the repairs in the streets as provided for in those restrictions or conditions, the subsequent legislation contained in the act of 1898 impaired the obligation of that contract, and was therefore void, as a violation of the Constitution of the United States.

In the view we take of this subject it may be assumed, for the purpose of argument, that the city of Worcester had power, under the legislation of the State, to grant the right to extend the location of the railroad company's tracks upon the restrictions or conditions already mentioned. It may also be assumed, but only for the purpose of the argument, that the restrictions or conditions contained in the orders or decrees of the board of aldermen, upon their acceptance by the company, became contracts between the city and the company.

The question then arising is, whether the legislature, in the exercise of its general legislative power, could abrogate the provisions of the contract between the city and the railroad company with the assent of the latter, and provide another and a different method for the paving and repairing of the streets through which the tracks of the railroad company were laid under the permit of their extended location. We have no doubt that the legislature of the Commonwealth had that power. A municipal corporation is simply a political subdivision of the State, and exists by virtue of the exercise of the power of the State through its legislative department. The

legislature could at any time terminate the existence of the corporation itself, and provide other and different means for the government of the district comprised within the limits of the former city. The city is the creature of the State. East Hartford v. Hartford Bridge Co., 10 How. 511, 533, 534.

As is stated in United States v. Railroad Company, 17 Wall. 322, 329, a municipal corporation is not only a part of the State but is a portion of its governmental power. "It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. The State may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence. As a portion of the State in the exercise of a limited portion of the powers of the State, its revenues, like those of the State, are not subject to taxation."

In New Orleans v. Clark, 95 U. S. 644, 654, it was stated by Mr. Justice Field, in delivering the opinion of the court, that:

"A city is only a political subdivision of the State, made for the convenient administration of the government. It is an instrumentality, with powers more or less enlarged, according to the requirements of the public, and which may be increased or repealed at the will of the legislature. In directing, therefore, a particular tax by such corporation, and the appropriation of the proceeds to some special municipal purpose, the legislature only exercises a power through its subordinate agent, which it could exercise directly; and it does this only in another way when it directs such corporation to assume and pay a particular claim not legally binding for want of some formality in its creation, but for which the corporation has received an equivalent."

In Commissioners of Laramie County v. Commissioners of Albany County et al., 92 U. S. 307, it was held that public or municipal corporations were but parts of the machinery employed in carrying on the affairs of the State, and that the

charters under which such corporations are created may be changed, modified or repealed as the exigencies of the public service or the public welfare may demand; that such corporations were composed of all the inhabitants of the territory included in the political organization; and the attribute of individuality is conferred on the entire mass of such residents, and it may be modified or taken away at the mere will of the legislature, according to its own views of public convenience, and without any necessity for the consent of those composing the body politic.

It was said in that case that "public duties are required of counties as well as of towns, as a part of the machinery of the State; and, in order that they may be able to perform those duties, they are vested with certain corporate powers; but their functions are wholly of a public nature, and they are at all times as much subject to the will of the legislature as incorporated towns, as appears by the best text writers upon the subject and the great weight of judicial authority."

In Commissioners &c. v. Lucas, Treasurer, 93 U. S. 108, 114, the question of the validity of an act of the legislature was presented, and Mr. Justice Field, in delivering the opinion of the court, said:

"Were the transaction one between the State and a private individual, the invalidity of the act would not be a matter of serious doubt. Private property cannot be taken from individuals by the State, except for public purposes, and then only upon compensation or by way of taxation; and any enactments to that end would be regarded as an illegitimate and unwarranted exercise of legislative power. But be

tween the State and municipal corporations, such as cities, counties, and towns, the relation is different from that between the State and the individual. Municipal corporations are mere instrumentalities of the State, for the convenient administration of government; and their powers may be qualified, enlarged or withdrawn, at the pleasure of the legislature."

In Mount Pleasant v. Beckwith, 100 U. S. 514, it was held