5 Cal. 214, Low v. Marysville
| Citation | 5 Cal. 214 |
| Opinion Judge | MURRAY, Judge |
| Party Name | F. F. Low, Respondent, v. The Mayor and Common Council of the City of Marysville, Appellants |
| Attorney | R. N. Mesick & G. N. Swezey, for Appellants. Marshall & Mott, for Respondent. No briefs on file. |
| Judge Panel | JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred. |
| Case Date | July 01, 1855 |
| Court | California Supreme Court |
Page 214
Appeal from the District Court of the Tenth Judicial District, Yuba County.
COUNSEL:
OPINION
The second section of an Act amendatory of an Act incorporating
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the City of Marysville, and Acts supplementary to said Act, provides as follows:
" If the Common Council desire to take stock in any public improvement, or loan the credit of the city to any improvement. or effect a loan for any purpose, for a sum exceeding five thousand dollars, they shall submit a proposition for taking such stock, or effecting such loan, stating the amount of loan or stock, to the electors of the city of Marysville, at a special election to be held for that purpose, upon the Common Council giving twenty days' published notice of the same; and if two thirds of the electors vote in favor of such proposition or propositions, the Common Council shall have power to effect such loan or take such stock--but not otherwise,--and pledge the faith of the city for such loan or stock."
The question now presented for our determination is as to the authority of the city of Marysville, under the provisions of this section, to subscribe stock in the " Citizens' Steam Navigation Company."
The objections raised are, first, that the Act does not purport to give to the Common Council of the city the right to embark in such an enterprise or speculation, but only to engage in such public improvements as come strictly within the proper exercise of municipal regulation; and, second, if the Act under consideration was intended to authorize such an exercise of power, it is unconstitutional.
Upon the first point, it is clear to my mind that the section cannot be extended to improvements other than municipal in their character, and that the Legislature did not intend to invest the city of Marysville with authority to embark in speculative enterprises of improvement, because of some fancied benefit which might inure to the city.
The words " public improvements," when applied to a municipal government, must be taken in a limited sense, as applying to those improvements which are the proper subject of police and municipal regulation,--such as gas, water, almshouses, hospitals, etc.,--and cannot be extended to subjects foreign to the object of the incorporation, and beyond its territorial limits. Without referring to the many privileges exercised by the free cities of Europe, some of which exercised almost all the powers of sovereignty, by virtue of royal patent or their own usurpation, we understand the powers of municipal corporations to
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be limited, particularly in the United States, to the express grant of their charters; the object of their creation to be governmental, and not commercial.
We do not deny the authority of the Legislature, in the absence of constitutional restrictions, to confer plenary powers on municipal incorporations; but we think, in the present case, that the second section, above quoted, cannot fairly be construed as giving the power to subscribe for steamboat stock, on the hypothesis that it is a public improvement, simply because one of the termini of...
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