It is 'contended that, although generally the state may have absolute control over and cities within its borders, the inapplicable in Rhode Island and the other New England states and in New York. The original towns of Rhode Island existed before there was any colony or state, with well-defined, self-instituted powers, legisla tive, judicial and executive, that were not surrendered when they agreed to unite. The system of town government brought to this country has nowhere been so faithfully and insistently applied and developed as in Rhode Island. Among the powers that have always been reserved and exercised by the towns and cities of that state is the power to manage their own affairs. See 13 Harv. Law Rev. 441.
In some cases the doctrine has been es tablished that municipal corporations can not be deprived of the right of local self government, this view resting either upon the ground of implied constitutional guar antee or implied reservation to that effect; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103 ; this right to self-government has, how ever, been confined to matters of purely local concern. The principle upon which the distinction is based is that the municipality acts in a dual capacity as an agent of the state with regard to certain matters and as the agent of its own inhabitants with regard to others ; in respect to the former it is sub ject to the complete control of the state; People v. Detroit, 28 Mich. 228, 15 Am. Rep. 202. The management of the municipal wa ter works and fire department is held a mat ter of purely municipal concern, and a stat ute transferring their control to a state board was held an unconstitutional interfer ence with the right of municipal self-govern ment ; State v. Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222; State v. Fox, 158 incl. 126, 63 N. E. 19, 56 L. R. A. 893 ; contra, David v. Water Com mittee, 14 Or. 98, 12 Pac. 174.
Such corporations are sometimes author ized to hold real property for the same pur poses that such property is held by private corporations or individuals. The distinction between property owned by municipal cor porations in their public and governmental capacity, and that owned by them in their private capacity, though difficult to define, has been approved by many of the state courts ; Hunter v. Pittsburgh, 207 U. S. 179, 28 Sup. Ct. 40, 52 L. Ed. 151. It has been held that as to the latter class of property the legislature is not omnipotent. If the distinction is recognized, it suggests the question whether property of a municipal corporation owned in its private and pro prietary capacity may be taken from it against its will and without compensation. Judge Dillon says correctly that the question has never arisen directly for adjudication in the supreme court of the United States, but it and the distinction upon which it is based has several times been noticed ; Tippecanoe Co. v. Lucas, 93 U. S. 108, 23 L. Ed. 822; Meriwether v. Garrett, 102 U. S. 472, 26 L.
Ed. 197; New Orleans v. Water Works Co., 142 Ti. S. 79, 12 Sup. Ct. 142, 35 L. Ed. 943; Covington v. Kentucky, 173 U. S. 231, 19 Sup. Ct. 383, 43 L. Ed. 679; Worcester v. R. Co., 196 U. S. 539, 25 Sup. Ct. 327, 49 L. Ed. 591; Hunter v. Pittsburgh, 207 U. S. 161, 28 Sup. Ct. 40, 52 L. Ed. 151.
As to powers of the non-public nature and as to property acquired thereunder, and contracts made with reference thereto, they are to be considered as quoad hoc private corporations; Dill. Mun. Corp. § 66; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485. And in like manner, as such corporations, they are liable for the misuser or nonuser of their powers of this nature. A city is lia
ble for wrongfully permitting the accumula tion of sewage in a cellar, thereby causing the death of a person who lived in the house over such cellar ; Hughes v. Auburn, 21 App. Div. 311, 47 N. Y. Supp. 235. But counties, though by modern legislation frequently con stituted municipal corporations, are permit ted greater immunity from liability for neg ligence than cities. On this principle it was held that the act of 1892, declaring a county to be a municipal corporation, did not change the common-law rule as to its non-liability in such cases, and, consequently, it was not liable for personal injuries sustained by an individual by reason of a defective bridge which it was bound to maintain ; Markey v. County of Queens, 154 N. Y. 675, 49 N. E. 71, 39 L. R. A. 46. If a municipal corporation becomes indebted, the rights of creditors cannot be impaired by any subsequent leg islative enactment; Smith v. Appleton, 19 Wis. 468; but authority to a city to borrow money, and to tax all the property therein to pay the debt thus incurred, does not necessarily deprive the state of the power to modify taxation, if the rights of creditors be not thereby impaired ; Goodale v. Fen nell, 27 Ohio St. 426, 22 Am. Rep. 321. So, also, as trustee for the general public, the legislature has control over the public prop erty and the subordinate rights of municipal corporations. It can authorize a railroad company to occupy the streets of a city with -out its consent and without payment; New Orleans, M. & C. R. Co. v. New Orleans, 26 La. Ann. 517. It can direct a municipal cor poration to build a bridge over a navigable watercourse within its limits, or appoint agents of its own to build it, and empower them to create a loan for the purpose, pay able by the corporation; Philadelphia v. Field, 58 Pa. 320; Carter v. Bridge Prop'rs, 104 Mass. 236 ; Pumphrey v. Baltimore, 47 Md. 145, 28 Am. Rep. 446. The legislature may compel a city to pay its bonds, by taxa tion, but not to pay an obligation for which no consideration had been received ; New Orleans v. Clark, 95 U. S. 644, 24 L. Ed. 521. In the absence of constitutional restraint, it may extend the boundaries of an exist ing municipal corporation without the con sent, or even against the remonstrance, of the majority or of all of the inhabitants of the existing corporation ; Madry v. Cox, 73 Tex. 538, 11 S. W. 541. And in general the legislature may, by subsequent legislation, validate acts of a municipal corporation oth erwise invalid ; Cooley, Const. Lim. 371; Pompton v. Cooper Union, 101 U. S. 196, 25 L. Ed. 803. The legislature may also inter fere with the administration of public char itable trusts by municipal corporations ; Philadelphia v. Fox, 64 Pa. 169; but not with those of a private character where a contract has been constituted; New Glouces ter School Fund v. Bradbury, 11 Me. 118, 26 Am. Dec. 515 ; Dartmouth College v. Wood ward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. A contract made by a city with a water works company, so far as the city's rights , are concerned, is subject to the will of the legislature, and a statute may authorize a change therein; New Orleans v. Water Works Co., 142 U. S. 79, 12 Sup. Ct. 142, 35 L. Ed. 943; and property acquired by it for the purpose of furnishing water is not held by it as a private corporation so as to pre vent the legislature from modifying the management of it ; Coyle v. McIntire, 7 Houst. (Del.) 44, 30 Atl. 728, 40 Am. St. Rep. 109.