injustice which may sometimes result from the limitations it has imposed upon the authority of the officers which it has empowered with the administration of its municipal creations. But when a judgment has been rendered in favor of the municipality and against an individual, after a full examination of the merits, and not because of any disability of the municipality to do right or lack of liability to respond as the merits may require, the judgment is final in favor of the municipality, and is property vested in the municipality just as much as in an individual; and this property cannot be taken from the municipality by any legislative act and transferred to the individual, either under the guise of a statute vacating the judgment, or by means of a proceeding giving a new trial.1

§ 131 (80) Legislative Power over Property held in Trust for Specific Uses. While it is undeniable that the legislature has full control over public corporations, and over the funds which belong to them as such, and held for strictly public purposes, yet where by authority of law such corporations hold property or funds in trust for specific uses, it is left in doubt by the cases how far the legislature can, unless the uses be public or charitable, interfere with or control such trust property or funds. In a case of great interest, the Supreme Court of Pennsylvania decided that it was within the power of the legislature to deprive the city of Philadelphia of the right to administer charitable trusts under the will of Mr. Girard and others, which had been granted to and accepted by it, and to confer the administration of these trusts upon a separate body called "Directors of City Trusts," appointed by the judges of the Supreme Court and other judges named in the act. It is to be remarked, however, that the legislature did not attempt to change or pervert the trusts themselves. Certain it is, that without legislative authority a municipal corporation, holding the legal title to property in trust, cannot use the funds derived from such property for corporate purposes, or indeed for any except the trust purposes.3

versy in chancery, 29 Vt. 12. See also New Gloucester School Fund Trustees v. Bradbury, 11 Me. 118; Poultney v. Wells, 1 Aik. (Vt.) 180; Plymouth v. Jackson, 15 Pa. 44; Harrison v. Bridgeton, 16 Mass. 16; Daniel v. Memphis, 11 Humph. (Tenn.) 582, 585; Trustees of Academy v. Aberdeen, 21 Miss. 645, as to which, quære; Aberdeen v. Sanderson, 16 Miss. 663; Chambers v. St. Louis, 29 Mo. 543; Holland v. San Francisco, 7 Cal. 361; Girard v. Phila

§ 132. Legislative Power over Property held for Specific Purposes not exclusively Public. The subject of the legislative authority

over property held by municipal corporations for purposes not exclusively public has received full consideration by the Supreme Court of Massachusetts, in a case which involved the right and power of the legislature to transfer without compensation to the city the ownership and control of a cemetery established by the city.1 The

its responsibilities increased at any time by the legislature. The board depended largely for the maintenance of the schools upon sources of income found outside the limits of the city of Memphis, receiving from the State its proper proportion of the money derived from the payment of interest on the common school fund held by it as trustee as well as from the poll and property tax imposed and collected by the State for school purposes. By chap. 134 of the Acts of 1899 the territorial limits of the city of Memphis were enlarged, and the legislature passed an act providing that, for a term of five years thereafter, children of the common schools not residing within onehalf mile of the limits of the city as ascertained should have the right to attend, free of tuition, the public schools inside the city nearest to their respective places of residence. It was held that as the legislature might change or abolish the power of the corporation, the act in question did not deprive it of any property right, but imposed upon it the duty of giving free education to the children of families living within one-half mile of the extended limits. Edmondson v. Memphis, 108 Tenn. 557.

Where a county has acquired the right to lands for public educational purposes under a constitutional and statutory right common to all the counties of the State, the legislature cannot arbitrarily take the lands from the county and give them to private parties for private purposes. Milam County v. Bateman, 54 Tex. 153.

1 Mount Hope Cemetery v. Boston, 158 Mass. 509; ante, § 111. In this case, in 1857, the city of Boston, pursuant to statutory authority, acquired lands for cemetery purposes, and laid out the cemetery known as Mount Hope Cemetery. By statute, the city was required to provide a place for the burial of persons dying within its limits as well as for its poor. It also had statutory authority to sell exclusive burial rights to any persons, whether residents of the city or not. It used the cemetery for these purposes for many years, with the result that in ad

dition to providing a place for the free burial of the poor and of its own inhabitants it was enabled to provide a well-ordered cemetery with lots open to purchase, under carefully prepared rules and regulations, and thus to afford to its inhabitants the opportunity to buy burial places without being compelled to resort to private cemetery companies, where the expense would probably be greater; and it had done this upon such terms that the burial of its paupers had been practically without expense in the past, and about forty acres remained, the proceeds of which would go into the city treasury. In this situation, the legislature passed an act which created such of the proprietors of burial lots in the cemetery as should accept the act into a corporation, provided for its organization, and directed that the city should convey to the corporation the lands constituting the cemetery, the tools, implements, and personal property pertaining thereto, and any unpaid balances remaining due for lots already sold, "to be held by said corporation, so far as consistent herewith, for the same uses and purposes and charged with the same duties, trusts and liabilities for and subject to which the same are now held by said city." The corporation was given the entire charge of the cemetery and of the lots and graves therein; and the right to receive from the city the income of funds held by the city for that purpose; "and the said corporation shall have in respect of said cemetery all rights, powers and privileges and be subject to all duties, obligations and liabilities now had or sustained by said city in respect thereof, and shall fully indemnify and hold harmless the said city in regard to the same." The statute also provided that the city should continue to have the right of burial of persons for whose burial it "is now or shall hereafter be bound by law to provide" in a certain portion of the cemetery, either at its own expense or upon terms to be agreed upon with the corporation. For the purpose of determining the status of the cemetery and

conclusions at which the court arrived are as follows: 1. Over property which a city or town has acquired and holds exclusively for purposes deemed strictly public, i. e., which a city or town holds merely as an agency of the state government for the performance of strictly public duties devolved upon it, the legislature may exercise a control to the extent of requiring the city or town, without receiving compensation therefor, to transfer such property to some other agency of the government appointed to perform similar duties and to be used for similar purposes, or perhaps for other purposes strictly public in their character. 2. By a quite general concurrence of opinion, however, this legislative power of control is not universal, and does not extend to property acquired by a city or town for special purposes not deemed strictly and exclusively public and political, but in respect of which a city or town is deemed rather to have a right of private ownership, of which it cannot be deprived against its will, save by the right of eminent domain with payment of compensation. 3. No exact or full enumeration can be made of the kinds of property which fall within these respective classes, because in different States similar kinds of property may be held under different laws and with different duties and obligations, so that a kind of property might in one State be held strictly for public uses, while in another State it might not be. In establishing its system of water works, its public parks, its market, its hospital, its library, and its cemetery, the city of Boston has not acted strictly as an agent of the State government for the accomplishment of general public or political purposes, but rather with special reference to the benefit of its own inhabitants, and holds property acquired for these purposes more like the property of a private corporation rather than as a public agent. 4. A cemetery purchased and acquired by the city of Boston for the purpose of enabling it to fulfil its statutory duty of providing a burialplace for the poor and for persons dying within its limits, but also with the right to sell burial lots to individuals, whether residents or non-residents of the city, falls within the class of property which the city owns in its private or proprietary character as a private corporation might own it, and its ownership is protected under the Constitutions of Massachusetts and of the United States, so that the

the nature of the city's title thereto, as an agent of the State or as a private proprietor, the court reviewed the history of public or quasi public cemeteries in Massachusetts, and arrived at the conclusion that the city held the cemetery in its private and proprietary character and primarily for the benefit

of its own inhabitants. It also examined into the character of the corporation formed under the act, and held that it was a private and not a public corporation, and that no duty to the public was imposed upon it, those duties remaining with the city.

legislature has no power to require its transfer without compensation. 5. The legislature cannot require the city to transfer without compensation the title of such cemetery to a corporation created by statute out of the holders and owners of burial lots therein, although such statute declares that the title of such corporation shall be held, so far as consistent therewith, for the same uses and purposes, and charged with the same duties, trusts, and liabilities for and subject to which the same are held by the city; and that it shall have in respect of the cemetery all rights, powers, and privileges, and be subject to all duties, obligations, and liabilities of the city in respect thereof. 6. The legislature cannot require a city or town, without compensation, to transfer property which it has bought in order to enable it to discharge its statutory obligations, while at the same time its duties and obligations continue to rest upon it.