Coyle v. Gray

| Del. | Jul 22, 1884

Saulsbury, Chancellor

(Opinion of Court):

On the 18th day of April, 1883, the General Assembly passed an act to establish a board of water commissioners for the city of Wilmington and for other purposes.

• The act authorizes the city of Wilmington, through the agency of the board of water commissioners thereby created, constituted and appointed, and their successors, in office, to take, convey into, and throughout said city the water of the Brandywine river from any point on said river or other wholesome water, and also to acquire and hold lands, real estate or personal property necessary for constructing acqueducts, lay pipe, constructing reservoirs, erecting buildings and machinery proper for the said works, and for purifying, conducting, storing and distributing such water and to purchase, take and hold lands and water rights, for supplying the citizens with good and wholesome water.

Three citizens of Wilmington were appointed and constituted a board of water commissioners for the said city under the act. Their terms of appointment were limited to two, lour and six years.

At the expiration of the term of the said commissioner who should draw the shortest term and biennially thereafter the place of the retiring commissioner was to be filled by appointment by the mayor of the city of Wilmington for the term of six years. The said board of water commissioners was to have control of all matters relating to water supply in the city of Wilmington, of the management and direction of the water works then existing or thereafter to be constructed in connection therewith; to have charge and supervision of all mains, stop cocks and fire hydrants and other fixtures appertaining to the distribution of water through the city and of the collection of all revenues due, or to become due to the city of Wilmington for water, or accruing to the said city on account of the water works thereof, in virtue of any ordinance then existing; or of any rules and regulations thereafter to be passed by said board.

The ordinances of said city then in force relating thereto were to continue in force until the same should be changed in whole, or in part by the said board of commissioners. And all officers of the water department of said city were to be from the time of the organization of said board of commissioners under and subject to the control of the said board. And the terms of office of all the said officers were by the said act made subject to termination at the pleasure of said board, all such officers were to continue to perform the duties then devolved upon them by the ordinances of said city until the board should otherwise direct; and all books, accounts and property connected with the water department of said city or any office therein were to be used and disposed of according to the directions of said board.

The said board of water commissioners were by said act authorized at its discretion to appoint, employ and discharge all officers, agents, ministers and servants necessary for the management and service of the water works and for the collection of the revenues arising therefrom as the said act provided.

The said board were with all dispatch to prepare and resolve upon a plan for the permanent water works, best suited to the circumstances of the city of Wilmington, capable of affording an ample daily supply for the inhabitants of the city; and to acquire for the city of Wilmington by contract, or otherwise as in said act provided, all such real estate as might be needed for the construction of such extended water works; the title of any real estate so purchased to be vested in the mayor and Council of the city of Wilmington.

The said board of water commissioners were to have the right to charge the city of Wilmington with all water furnished each fire hydrant at the rate of $40 per annum or the city was in lieu thereof to pay to the water commissioners a sum of money as might be agreed upon by the City Council and said board, provided that in no case should the city pay less than $20,000 per annum.

For the purpose of defraying all the cost of acquiring real estate for reservoirs, laying pipe, purchasing engines, constructing all the works contemplated by the act and purchasing water rights it was made the duty of the city of Wilmington on the requisition of said board of water commissioners to issue bonds, each for the sum of $100, or multiples of one hundred, payable in not more than 35 years from date of issue, to be denominated Wilmington city bonds to an amount not exceeding $120,000, bearing interest not exceeding 5 J per cent, per annum, which bonds the board of water commissioners might sell and dispose on the most advantageous terms possible.

The proceeds of the sale of all such bonds and also the revenue derived from the water works were to be received by said board of water commissioners and placed on deposit in such bank at Wilmington as should from time to time be the depository of the funds of the city to the credit of said board, and all money to be disbursed thereon on account of said water works was to be drawn upon warrant signed by the president of said board, and countersigned by the city treasurer and city auditor.

The water rates were required to be fixed by the said board of water commissioners at prices that should produce revenue sufficient at least to pay the interest on the water bonds and the running expenses of the water works, and the whole net income, rents and receipts of said water works in excess of what might be necessary for completing, constructing, operating and repairing the water works, for extending the water pipes and for interest on water bonds were to be set apart by the said board and solely appropriated to and for the payment of the principal and interest of the water bonds, and should be applied solely to that purpose until the whole of said bonds should be fully paid.

The City Council were required during the month of December in each and every year to notify the board of water commissioners of the amount of interest due and payable during the ensuing year on all loans created for the benefit of the water works, stating the time when due and the amount of interest payable, and. the board of water commissioners were required to pay to the city the ámount of interest due in each year, such payment to be made at least ten days before said interest was payable to the holders of any water loans.

The present controversy results from the passage of this act by the Legislature.

It is unnecessary to review the history of the legislation of the State conferring upon the corporation of Wilmington authority in relation to the supply of water to that city. Such legislation seems to have commenced in 1799 and to have continued from time to time to the present.

Water works existed in the city of Wilmington prior to and at the time of the passage of the act referred to as being the occasion of the origin of these proceedings.

These water works belonged to and were under the control of the corporation. David H. Coyle, the plaintiff in error, was chief engineer of said works by appointment of the proper authorities at the time of the passage of the act to establish a water commission. The commission appointed by the act having qualified for the discharge of their duties as commissioners thereunder removed the said Coyle as such chief engineer and appointed Henry B. Mclntire, the defendant in error, in his place and stead. Coyle refused to surrender his office as chief engineer and the property connected therewith to said Mclntire in accordance with demand made upon him under the resolution adopted by the commissioners and thereupon the attorney-general of the State on the relation of Henry B. Mclntire filed an information in the nature of a quo-warranto in the Superior Court in and for Blew Castle county, against him.

Judgment against the defendant was by agreement entered in the court below and a writ of error thereon sued out to this court.

The cause was very fully argued at the present term and it now becomes our duty to decide as to the rights of the parties to the proceeding.

While we have carefully examined all the authorities cited to us by counsel on both sides and maturely considered the positions assumed by each, we deem it unnecessary to review at length those cases, but shall confine ourselves to the consideration of such general principles as we consider necessarily involved in the determination of the cause and properly deducible from the authorities applicable thereto.

The plaintiff in error contends that the act of the Legislature to establish a board of water commissioners is unconstitutional and void. His counsel in their very able argument maintained in substance that a municipal corporation is of a dual character, and possesses two classes of powers and two classes of rights, public and private. That in all that relates to one class it is merely the agent of the State and subject to its control, and that in the other it is the agent of the inhabitants of the place, and not subject to the absolute control of the Legislature, its creator. That among the latter is the right to acquire, hold and dispose of property to sue and be sued, just as certain rights are conferred upon private corporators and persons not sui juris such as minors and married women, but are not afterwards as long as they exist under legislative control.

They maintain in effect that the act is unconstitutional as being repugnant to that provision of the constitution of this State which provides that no man shall be deprived of his property except by due process of law. They contend that what they say is the private property of a public corporation is held by such corporation under all the constitutional guarantees as similar property would be protected by in the hands of individual owners and properties, and this protection exempts a public corporation as to its water works from the regulation and control of the State as effectually as against trespass and wrong committed by individuals.

This is in effect the position of the plaintiff in error.

The questions involved in this case necessarily lead to the consideration of the nature, character and powers of corporations, private and public.

A corporation is a legal institution devised to confer upon the individuals of which it is composed powers, privileges and immunities which they would not otherwise possess, the most important of which are continuous legal identity, and perpetual or indefinite succession under the corporate name, notwithstanding successive changes by death or otherwise in the corporations or members of the corporation.

It is a legal person with a special name composed of such members and endorsed with such powers and such only as the law prescribes. Dillon on Mun. Corp. 25.

It is an artificial being, invisible, intangible and existing only in contemplation of law. Dartmouth College case.

Being the mere creature of the law it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. These are such as are supposed to be best calculated to effect the object for which it is created.

Corporations are of two kinds, public and private. “ Private corporations,” says Cooley, “ are created for private as distinguished from purely public purposes, and they are not in contemplation of law public, because it may have been supposed by the Legislature that their establishment would promote either directly or consequentially the public interest. They cannot be compelled to accept a charter or incorporating act. The assent of the corporation is necessary to make the incorporating statute operative, but when assented to, the legislative grant is irrevocable, and it cannot without the consent of the corporation be impaired or be destroyed by any subsequent act of legislation, unless the right to do so, was reserved at the timé.”

By the 19th section of the second article of the constitution of this State, it is declared that “ no act of incorporation, except for the renewal of existing corporations, shall be hereafter enacted without the concurrence by two-thirds of each branch of the Legislature, and with a reserved power of revocation by the Legislature ; and no act of incorparation which may hereafter be enacted, shall continue in force for a longer period than 20 years without re-enactment of the Legislature, unless it be an incorporation for public improvement.”

“ Corporations,” says Cooley, “ intended to assist in the conduct of local self-government are sometimes styled political, sometimes public, sometimes civil and sometimes municipal, and certain kinds of them, with very restricted powers, quasi corporations—all these by way of distinction from private corporations.”

Thus an incorporated school district or county as well as city is a public corporation; but the school district or county is not, while' the city is a municipal corporation.

All municipal corporations are public bodies created for civil of political purposes; but all civil, political public corporations are not in the proper use of language municipal corporations.

A municipal corporation may be defined to be a body politic and corporate established by law to assist in the civil government of the State with delegated authority to regulate and administer the local or internal affairs of a city, town or district which is incorporated.

“ A body politic,” says Lord Coke, “ is a body to take in succession, formed as to its capacity by policy” and is therefore called by Littleton (section 4, 13) a body politic. It is called a corporation or body corporate because the persons are made into a body politic and are of capacity to take, grant, &c., by a particular name.

Public corporations for the government of a town, city or the like, being for public advantage are to be governed according to the law of the land. They are the mere creatures of the public institution, created exclusively for the public advantage without other endowments than such as the government may bestow upon them.

“ It would seem reasonable,” says Mr. Justice Washington, in Dartmouth College v. Woodward (4 Wheaton), “that such a corporation may be controlled and its constitution altered and amended by the government in such manner as the public interest may require. Such legislative interferences cannot be said to impair the contract by which the corporation was formed because there is in reality but one party to it.” There is in fact no contract in any just sense of that word, and public municipal corporations are not founded on contracts.

The city of Wilmington is a public corporation. It is a municipal corporation which is, as we have seen, an incorporation by the authority of the State of the inhabitants of a particular place or district, and authorizes them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns.

The style and name of the corporation is the Mayor and Council of Wilmington, and it is declared by its charter that by that name they shall be and are hereby made able and capable in law to have, take, purchase, receive, possess, enjoy and retain to them and their successors, lands, tenements, hereditaments, goods, chattels and effects of what kind, nature or quality soever, and the same to sell grant, demise, alien or dispose of, to sue and be sued, implead and be impleaded, answer and be ansvrered, defend and be defended in all courts of law and equity, or any other place whatsoever, and also to make, have and use a common seal, and the same to break, alter and renew at their pleasure, generally to have all the privileges and franchise incident to a corporation or body politic.

Because it is a municipal corporation the plaintiff in error contends that its inhabitants are constitutionally entitled to all the rights and privileges of independent local self-government, and that all the property which the corporation is capable to have, take, purchase, receive and possess not necessary for the discharge of purely governmental purposes is as against the State, as well as against individuals, subject to the absolute and uncontrolled possession of the corporation as solely and absolutely as is the property of a purely private corporation or of a private individual. And that the provisions of our constitution guaranteeing the rights of property to the owners thereof is applicable to such property and its owners, equally as to like property when owned by private individuals.

The theory of the plaintiff in error, as presented and discussed by his counsel, is a beautiful one. It has all the charm which attaches to the principle of local self-government.

Whether the universal recognition by legislative and judicial tribunals as applicable to municipal corporations would be attended by all the advantages, and result in all the beneficial consequences supposed by its advocates can only be determined when human experience in this respect, if ever, may safely be invoked as a final arbiter.

Does the law, as the court should determine it to be, support the plaintiff’s theory ?

All that is absolutely necessary for us to say upon this subject is this: The corporation of the city of Wilmington, that is the people residing in the district known as the city of Wilmington, the name and style of whose corporation, that is the incorporation of the persons and inhabitants of that particular place, is the mayor and council of Wilmington, is merely an agency instituted by the State for the purpose of carrying out in detail the objects of government. It is essentially a revocable agency. It has no vested any of its powers or franchises. Its charter or act of right to incorporation is in no sense a contract with the State. It is subject to the control of the Legislature, who may enlarge or diminish its territorial extent or its functions, and may change or modify its internal arrangement or destroy its very' existence at discretion. While it exists in subjection to the will of the State, whose will can only be expressed by the Legislature it enjoys the rights and is subject to the liabilities of any other corporation, public or private. It is because it is a body politic, and has a legal entity and name and a seal by which it can act, that in addition to these the Legislature endowed it with the capacity to contract and be contracted with, to sue and be sued, to hold and dispose of property. It is because it has this capacity and these powers that it can acquire rights and incur responsibilities. These franchises were bestowed by the Legislature upon it, that-it might exercise certain powers of government, not independently of or in defiance of the Legislature over that particular part of the State known territorially as the city of Wilmington.

These are its rights affecting its relations to other persons. They do not affect its relation to the State because in certain particulars as a private corporation it may make contracts which it cannot impair. Its absolute dependence upon the will of the Legislature for its existence is not thereby diminished or destroyed. Its responsibility in respect to its contracts or torts does not affect its relationship to the State. In our opinion the State may continue its corporate existence and yet appoint all or any of the agencies through which it has heretofore been accustomed to act.

The city of Wilmington has no vested rights as against the State nor rights not subordinate to the authority of the State. In this respect it is precisely on the same footing and sustains the same relation to the State as all other municipal corporations within the State. It has no dual character, as a corporation it is either public or private. It is bound to fulfil its legal contracts and to answer before the legal tribunals for its torts in the same manner and to the same extent as a private corporation or a private individual. The courts for the administration of justice are equally open to to corporations of this character as to those of a private nature or to private individuals. Its rights to property legally held, including the control and government thereof, in respect to all parties other than the State, are the same as if it were a real and not an ideal being.

In the case of Borough of Dunmore’s appeal, 52 Penn. St. Reports, 374, the court say: “ Municipal corporations being creatures of the legislative power are subject to the legislative will in a manner and to an extent to which citizens are not. The constitutional guarantees of the citizen were respected in giving him a right of appeal, the municipal corporations having no such guarantees the right of appeal was not given to them.”

The counsel for the plaintiff in error referred us to the case of New Orleans, Mobile & Chattanooga Railroad Company vs. the city of New Orleans, 26 Louisiana Annual Reports, 481.

The first principle in his brief seems to be a transcript of a portion of the opinion of the court in that case.

The court among other things said: .“ A municipal corporation is appropriately defined to be 6 the investing the people of a place with the local government thereof, Salk., 183. It has no powers not conferred upon it expressly of by fair implication by the law of the state creating it or statutes applicable to it. Both the persons and the place inhabited by them are indispensable to the constitution of such a corporation. It is an agency to regulate and administer the internal concerns of a locality in matters peculiar to the place incorporated, and not common to the State or people at large • but duties and functions may be and are conferred, and imposed, not local in their nature. It possesses two classes of powers and two classes of rights—public and private. In all that relates to one class it is merely the agent of the State and subject to its control; in the other it is the agent of the inhabitants of the place—the incorporators—maintains the character and relations of individuals and is not subject to the absolute control of the legislature, its creator.

Among this latter class is the right to acquire, hold and dispose of property, to sue and be sued, &c.

It is true that these rights are originally derived from the Legislature, but once conferred they are to be exercised while it exists, at the will of the corporation, in its own, and as to its own interests, for the inhabitants, just as certain rights are conferred on private corporations and persons not sui juris as minors and married women, but are not afterwards under the control of the legislature.”

In our opinion this case was properly decided, but we dissent from much that was said by the judge in his opinion as interpreted by the counsel for the plaintiff in error. Much of what he said was not necessary. It was not necessary in that case that he should have said that a municipal corporation possesses two classes of powers, and two classes of rights, public and private, and that the latter is the right to acquire, hold and dispose of property, to sue and be sued, &c., and these remarks were not, in our opinion, in fact true.

The Legislature may, and generally does confer these rights upon all public corporations. The right to acquire, hold and dispose of property by a corporation does not make that property in any just sense of the word private property and the right and capacity to sue and be sued pertains no more to a private than to a public corporation.

The inhabitants of the city of Wilmington were constituted a corporation under the name and style of the Mayor and Council of the city of Wilmington, and were given a seal by the Legislature that they might acquire, hold and dispose of property, sue and be sued. But for what purpose or purposes? For public and not private purposes. The corporation is a public corporation. The uses for which the corporation may acquire and hold property must necessarily, we think, be public uses. Uses beneficial it may be some respects to the public at large, but certainly beneficial to the citizens generally of the municipality who may be called a particular local public, although a part of the general public of the State. Such property cannot in any sense be said to be private in the sense in which propety may be said to be private which is held by an individual citizen.

No citizen of Wilmington possesses any interest in the property of the municipality which is said to be private, which he can sell or in any manner dispose of. No portion of property held by the city passes to the local representatives of any inhabitant of the city or descends to his heirs upon his death; partition cannot be made of the real estate among the inhabitants in any manner known to law. Such property has not the incidents or qualities of private property attaching to property recognized as private among individual owners of property.

When a citizen of Wilmington removes from the city he ceases to have any interest in the use of the property as one of the corporators.

When a person from the most distant part of the country moves into the city and becomes an inhabitant thereof he immediately becomes a corporator and entitled, as all other inhabitants, to an interest in the use of the property.

In the case cited from the Louisiana reports, the property in respect to which that case arose was public and not private property, that is to say, it was property held and owned by the city for the use of its inhabitants. The legislature had attempted to grant to a private corporation the right to construct a railroad upon or across this property, not under proceedings in condemnation, but absolutely and in deprivation of the right of the city in its property without providing that the private corporation should make compensation for the taking of it. Of course this could not legally be done, in one sense the property was private property, that is property owned by the corporation for the public use of the inhabitants of the city.

The inhabitants of a city, who are in fact the corporators under a charter creating a municipality are a portion of that general public which constitute a State. And they are also that particular public which constitute a municipality.

The municipality may hold property in which all the inhabitants of a state or of a county may be said to have an interest in some respect, but not as owners or proprietors. And it may also hold property in which the inhabitants of the municipality alone may properly be said to have an interest. Both classes of property are public. The one as to the people of the whole state or county, the other more particularly as to the inhabitants of the municipality.

It is only in this sense that the words public and private can with propriety be applied to such property when held by a municipality.

Although the property held for the municipality is in fact public as common to all the inhabitants of a city, it nevertheless may justly be said to be private property as being such property as is exempt from being taken or applied to any other public use by the State, or by authority of the State, without compensation being made.

It was said in the course of the argument of the present case that the corporation of Wilmington owned a lot within the limits of the city, called the “ sand lot.” Now if the Legislature of this State had passedan act authorizing the Baltimore & Ohio Railroad Company to take any portion of this lot for the purpose of constructing their road, now in the course of construction through that city, without compensation, there could be no doubt that such an act would be unconstitutional as against the spirit of the constitution, which declares that private property shall not be taken for public use without compensation being made. The lot would be considered private as belonging exclusively to the corporation, although the use for which it is held by the corporation is public, for the benefit of all the inhabitants of the city. And the title in fact is in all the corporators, that is the inhabitants of the city. Had the Baltimore & Ohio Railroad Company in fact attempted to construct their road across this lot there can be no doubt that the city would have been entitled to an injunction restraining them from so doing.

While the municipality of Wilmington exists as a corporation, endowed with the capacity of purchasing and holding property, it has a right as against every other corporation or person to the use and enjoyment of its property as freely and fully as a private person can hold and enjoy similar property, but city corporations are emanations of the supreme law making power of the State and they are established for the more convenient government of the people within their limits.

In cities, for reasons partly technical and partly founded upon motives of convenience, the title of certain property is vested in the corporate body. It is not thereby shielded from the control to a certain extent of the Legislature as the supreme law making power of the State. While the corporation exists by authority of the State authorized to purchase and hold property for the inhabitants of the city to be paid for by the taxes levied upon the inhabitants, it would not, in our opinion, be competent for the State to take away such property and give it to other corporations or persons.

In case of the condemnation for public purposes as for instance to enable the B. & O. Railroad Company to construct a road across the lot referred to, it would not, we suppose, be competent for the Legislature to direct that the condemnation money should be given to the corporation of the city of New Castle or should be applied to any municipal purpose of that city. But suppose the sand lot owned by the city of Wilmington should become worthless to the city or not adapted to any municipal use and valuable only for sale to private persons for building purposes. Could it be doubted that the Legislature might direct it to be sold and the proceeds be devoted to some municipal or public purpose within the city of Wilmington ?

The right to acquire the property by means of taxation was conferred upon the city that the property so acquired might be useful to the city and we can imagine no limit to the control of the State over property so acquired consistent with the preservation of the property or of its proceeds for the uses and purposes for which it was acquired and the benefit of those for whom it was acquired.

The constituting a board of commissioners for the management of the property of a municipal corporation for the benefit of the corporators is no diversion of the property from the purposes of its acquisition. No title is thereby divested, and no property is wrongfully taken. In the case of the water works of the city of Wilmington, these works were not taken away from the city by the appointment of a board of commissioners to manage them; nor was their use diverted from its original purpose. Whether managed by the City Council or by the board of commissioners appointed by the authority of the Legislature, the uses and purposes of the water works—the supply of water to the corporators or inhabitants of the city—will be the same, and while these purposes and objects continue the same we can see no violation by the act of the Legislature of any equitable right of which the city may complain.

We have considered this question as though the city was in fact a party to this proceeding and complaining of a violation of its chartered rights; such however does not appear to be the case from the record before us.

David H. Coyle appears from that record to be the only party defendant below, and plaintiff in error here. He claims to hold the appointment of chief engineer of the water department of the city of Wilmington by appointment of the City Council and he makes the objections that the act of the Legislature establishing the board of water commissioners is unconstitutional and that therefore the relator in this case has no authority to exercise the functions of chief engineer by appointment under the authority of said act.

We do not place our decision, however, in this case, upon the ground that the city of Wilmington or the Mayor and Council of the city of Wilmington are not technically parties to these proceedings, but upon the broad ground of the right of the relation under this or any other proceedings that can be had or taken to determine his right as between him and the plaintiff in error, or between him and the Mayor and Council, or any party or parties whomsoever.

We do not suppose that, if the powers conferred upon the board of water commissioners by the act of the Legislature creating it had by that act been conferred on the Council of Wilmington, any serious objection could or would have been made to the constitutionality of the act. If not, the controversy would be narrowed down to very small dimensions indeed. Has the City Council of Wilmington any vested or constitutional rights as against the State to manage or control the water works of the city of Wilmington or to appoint agents ór managers to control them ? They are the mere creatures of the Legislature, which can in a moment destroy, as in a moment it created them. The Legislature can divest the Council of any and every power and authority it possesses. It can direct that those powers should be exercised by any other department or agency of the city government and it could even direct that the functions now performed by the City Council should hereafter be performed by a like number of any other corporators of the city.

All the agencies of the city, that is of the corporators, can be abolished or changed at the will of the Legislature and even their functions terminated and assigned to other and different agencies. The Legislature can change the name and style of the corporation and even of the city itself without the consent and even against the will of the inhabitants. It may circumscribe or extend the limits of the corporation. It may divide the city into two, four or more cities and give to each a separate and independent organization and burden the separate cities with such share in the payment of the existing debt of the city as shall be determined by a board of commissioners appointed by the Legislature for that purpose. It may declare that the amount so determined by such board shall be final upon the respective newly created cities. In the borough of Dunmore’s appeal, 52 Penn. St. Rep., before referred to, a township being in debt four boroughs were created out of it. An act was afterwards passed authorizing commissioners to ascertain the indebtedness of the township and the amount due from the boroughs respectively and make a just distribution of the indebtedness between the township and boroughs and requiring all persons having claims to present them. An appeal was authorized from the decision of the commissioners on such claims. The court said, as hereinbefore recited: "This legislation is unprecedented and perhaps severe but it denies trial by jury only to municipal corporators who being creatures of the legislative power are subject to the legislative will in a manner and to an extent to which the citizens are not. The constitutional guarantees of the citizens were respected in giving him a right of appeal. The municipal corporators having no such guarantees the right of appeal was not given to them. The theory of the act was therefore unexceptionable.

May the city of Wilmington forever remain undivided and by the obedience of its inhabitants to law prove that it should be indivisible.

We have no doubt that should occasion arise for the exercise of the power the Legislature of the State would have the right to declare that the city of Wilmington should have and maintain not only suitable water works for the supply of the city with good and wholesome water but should have and maintain a proper fire department and proper gas works for the protection of the city from fire, and for the proper lighting of the city, for the convenience, safety and comfort of the inhabitants. They might authorize the levying of taxes upon the inhabitants of the city for the defraying of the expenses necessary for the accomplishment of these purposes, and they might appoint commissioners to do whatever was necessary to be done to effectuate the act.

What the Legislature might do in respect to Wilmington, they might do in respect to any and all municipal corporations in the State where, in their judgment, a like necessity might exist.

The police power of a State is great, and may do whatever is necessary to promote the safety and health of the inhabitants of a municipality.

We do not consider it necessary to express an opinion in refer- . ence to any question not properly put before us, such as the issuing of bonds and the pledging of the faith of the corporation or the State to their redemption in any manner. If such bonds have been issued or shall be issued on the faith of the one or the other, or any such pledge has been or shall be made by the one or the other, it will be time enough to consider that question and the rights of the parties that may be affected thereby when it shall be presented for our consideration by parties capable of making it, and having an interest in its determination. No such parties are before us. It would not become us to express any opinion as to the wisdom or propriety of the enactment, the constitutionality of which has been the subject of contention before us.

We deem it not improper however to say that in our opinion the affairs of a municipal corporation should generally be administered in accordance with the will of its inhabitants, who, it is reasonable to suppose, are better acquainted with what will conduce to their comfort, happiness and prosperity, than others possibly can be.

Whether this act should have been passed by the Legislature was a question to be determined solely by the Legislature itself. We can determine only as to the constitutionality of what the Legislature has done and in our opinion, the city of Wilmington being a municipal corporation all its powers under its charter are subordinate to the powers of the Legislature.

The Legislature having the power to repeal its existence, necessarily has the power to alter, amend or abolish any of the agencies through which the powers of the corporation are exercised or to change them or to substitute others in their place.

That although the water works of the city may have been prior to the passage of the act to establish a board of water commissioners under the control and management of the City Council in any manner whatever and may have been exercised through any agencies whatever, it was competent for the Legislature to alter and change that control, management and agency as they might deem proper. Such alteration of control, management and agency, provided the same was not a diversion of the object and purposes for which the water works were established, would effect no vested right of the city or the corporation as against the State.

The rights of the corporators to the property being secured to them and the property of the corporators being preserved for its original purposes, if such be the case, and we see nothing in the act establishing a board of water commissioners to the contrary, this court is not at liberty to declare the act itself unconstitutional.

The judgment below is therefore affirmed.