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Argument for Plaintiff in Error.

196 U. S.

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to his private property. Mt. Hope Cemetery v. Boston, 158 Massachusetts, 509, and cases cited on p. 512; Commissioners v. Lucas, 93 U. S. 108; Mt. Pleasant v. Beckwith, 100 U. S. 514, 533; Broughton v. Pensacola, 93 U. S. 266; New Orleans, M. & T. R. Co. v. Ellerman, 105 U. S. 166, 172; Richmond v. Telephone Co., 174 U. S. 761, 777.

These property interests and pecuniary rights of a municipality as to a public way, when taken in conjunction with the contract power of the municipality with reference to the repair of streets, Brookfield v. Reed, 152 Massachusetts, 568, places the property rights of the city, in respect of highways, upon the same basis as its property rights in sewer systems and water works. Property rights of municipalities in sewers are recognized in a multitude of cases. Johnston v. District of Columbia, 118 U. S. 19; Maxmilian v. Mayor, 62 N. Y. 164; Coan v. Marlborough, 164 Massachusetts, 206; Child v. Boston, 4 Allen, 41. As to water works see Hand v. Brookline, 126 Massachusetts, 324; Johnson v. Worcester, 172 Massachusetts, 122; Lynch v. Springfield, 174 Massachusetts, 430; Esberg Gunst Co. v. Berlin, 55 Pac. Rep. 961; S. C., 34 Oregon, 282; Walla Walla v. Walla Walla Water Co., 172 U. S. 1. As to wharves, Mersey Docks Board v. Gibbs, 11 H. L. Cases, 686; Petersburg v. Applegarth, 28 Gratt. 321; Pittsburgh v. Grier, 22 Pa. St. 54. As to gas works, Western Sarings Fund Society v. Philadelphia, 31 Pa. St. 183; San Francisco Gas Co. v. San Francisco, 9 California, 483; Middleborough v. N. Y., N. H. & H. R. R. Co., 179 Massachusetts, 520.

The city of Worcester has a special proprietary right in the property of the defendant in error reserved to it in the original statute incorporating the railroad company, Chap. 148, Mass. Laws of 1861, in regard to its right of purchase of the railroad company's property. This is property. Richardson v. Sibley, 11 Allen, 65; Cambridge v. Railroad Co., 10 Allen, 50; Boston & Albany R. R. Co. v. Cambridge, 159 Massachusetts, 283; Water Supply Co. v. Braintree, 146 Massachusetts, 482; Water Co. v. Rockport, 161 Massachusetts, 279.

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196 U. S.

Argument for Defendant in Error.

A municipal corporation is a "person” within the meaning of that word as used in the Fourteenth Amendment.

The word “corporation” as used in certain statutes, includes a municipal corporation. Loeb v. Columbia Township, 179 U. S. 472, 486; Andes v. Ely, 158 U. S. 312; 1 Dillon on Mun. Corp., 4th ed., $$ 18, 19, 20; Mass. P. S., c. 3, § 3, cl. 16; Mass. R. L., c. 8, § 5, cl. 16; Covington & L. Turnpike R. R. Co. v. Sandford, 164 U. S. 578, 592; Pembina Consol. Mining Co. v. Pennsylvania, 125 U. S. 181.

The act of the Massachusetts legislature should not be construed to have abrogated the municipality's contract with the railroad company and this court can so hold notwithstanding the construction placed on the act by the state court.

Where the validity of the state statute is attacked upon the very ground that it was in conflict with the contract clause of the Federal Constitution this court examines de novo the meaning of the statute and places its own interpretation upon it. McCullough v. Virginia, 172 U. S. 102, 109; Yick Wo v. Hopkins, 118 U. S. 356; Mobile & Ohio R. Co. v. Tennessee, 153 U. S. 486; Wilson v. Standefer, 184 U. S. 399, and cases cited on p. 411. The legislative history of the act shows that it was not intended to abrogate the rights of the municipality.

Mr. Bentley W. Warren for defendant in error:

The board of aldermen cf Worcester in imposing the socalled conditions, claimed by the city to amount to contracts, contained in the orders of location acted, so far as it was intrusted with any power in relation to the location and construction of the defendant's railway, not in the capacity of officers or representatives of the city of Worcester, but as public officers under authority delegated to them by the legislature. The city of Worcester, as a municipal corporation, had no power, whether acting by its board of aldermen, by its city government, or otherwise, with respect to street railway locations within its limits. Municipal corporations in Massachusetts possess only such powers and rights as are ex


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;

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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

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which the question to be decided comes before us. Whether 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

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