Foster, J.
This is an action of assumpsit for money had and received, brought by the plaintiff against the town of Andover, under the statute of July 3, 1872, which provides that “if any town or city has received or shall receive the sum of $100, or part thereof, either in money or bonds, for any person counted as part of the quota of such town or city, who has not received any bounty from such town, city, or place, the sum of money or bonds received shall belong to and be the property of the person so counted, or his legal representatives, and may be recovered of such town or city, in an action of assumpsit, as for money had and received.”
The legislation upon this subject, which preceded this act, began in 1864. By the act of Aug. 19 (Pamphlet Laws, cli. 4023, sec. 7), towns and cities were authorized to raise money and appropriate the same as a bounty to each person, except those enlisted in or from the insurgent states, who shall be mustered into the military, naval, or marine service of the United States, or shall have been mustered into said service since the call of the president, dated the 14th day of March, 1864, and prior to the passage of the act, to fill the quota of such city, town, or place; * * such bounty in no case to exceed, in addition to the state bounty, the sum of $100 for each one year’s man, $200 for each two years’ man, $300 for each three years’ man, and in the same proportion for any other term of service.”
[50]*50By the exigencies of the war, men were' demanded for the service of the country. The town of Andover was required to fill its quota. This law was passed to enable it and other towns and cities to do so.
The constitutionality of this enabling-act is not apparently questioned, nor is it of doubtful validity. See Cooley’s Const. Lim. 234. Under this authority the town of Andover raised money, and thus accumulated a town debt.
To relieve the town, in part, of the burden thus resting upon it —Sanbornton v. Tilton, 53 N. H. 438-441 — the act of 1870 was passed — act of July 2, ch. 12 — whereby the state was authorized to issue bonds for the purpose of a limited reimbursement of cities and towns for war expenses incurred by them; and it was provided, that each city, town, &c., shall receive from the state $100 for every man furnished for the military service of the United States, under and after the call of July 2, 1862, and accepted by the United States for the term of three years, and in the same proportion for every man so furnished and accepted for whatever period, the same to be in part payment for any claim upon the state on account of its war debts by any city, town, &c.
The second section of the act provided for a board of commissioners to determine the amount to which each city, town, &c., should be entitled ; and the act of July 15, 1871, ch. 3, “ in addition to ” the act of July 2, 1870, pi’escribed specific regulations for carrying into practical effect the provisions of the act of 1870.
Then followed the act of 1872, which has been recited.
It appears from the report of the commissioners, that the plaintiff enlisted in Co. I, 4th regiment of reenlisted veterans, from the town of Andover, December 25, 1863, for three years, and that he was duly accepted by the United States for that time, and was duly allowed accordingly upon the quota of said town, and that the commissioners had allowed to the town the sum of $100, to be paid by the state to the town on account of the plaintiff’s enlistment and acceptance as aforesaid.
It appears, also, that there had been an assignment of bonds, according to the report of the commissioners, to each town in the state, and that most of these towns had taken and receipted for their proportion of said bonds, according to said assignment, before June, 1872, and that, on June 1, 1872, the small balance of bonds remaining in the state treasury were reported as a liability of the state, and as due to the several towns which had not taken and receipted for their bonds. The town of Andover had not taken or receipted for their share of the bonds which had been thus assigned to said town, and no bonds or money have actually been taken from the state treasury by the town, but they were held by the state treasurer, ready to be delivered to the [51]*51/town whenever the town would receipt therefor and comply with the provisions of the law.
A preliminary question seems to be, whether the town lias, within the meaning of the law, received the money or bonds which have been awarded by the report of the commissioners, but which have never gone into the actual custody of the town.
If the town has not received it — that is, if the state does not hold Ithe money or securities as the agent of the town or in trust for the town — there is the end of this case.
The state does not hold the money or bonds, which the plaintiff seeks to recover, in trust for that individual. It is not pretended that he has any claim other than such as he seeks to enforce, by this action, against the town.
The bonds assigned to the town of Andover by the report of the commissioners, under the act of 1870, are a gratuity given to the town, to relieve them, partially, from the pressure of a grievous burden. Of the legality or constitutionality of the act appropriating such a gift, no party now before the court can well complain. The plaintiff rests his case upon its legality, and the defendants may elect not to receive their proportion or quota of the gift without calling in question the validity of the grant.
If the town of Andover had not, prior to the commencement of this ¡action, August 31, 1872, received the bonds, or their equivalent in money, in fact, or by intendment of law, then, of course, this suit cannot be maintained.
If the town has received the bonds or money, when did it get them ? Was it before or after the passage of the act of July 3, 1872 ? If the bonds or money were, within the meaning and intent of the statute, received by the town prior to the act of July 3, 1872, the question will be presented, whether the legislature had the power by virtue of that act to direct and control the disposition of the bonds or money thus received ; whether they could constitutionally impose upon the town the obligation to pay a portion of it over to the plaintiff.
It the town had not received the bonds or money, within the intent and meaning of the law, prior to the passage of the act of July 3, 1872, then perhaps it might be holden that the town must thereafter-ward receive the bonds or money, if at all subject to the limitations in the nature of conditions imposed by that act, which might perhaps be regarded as if it had been incorporated by way of condition or proviso in the original act of 1870.
If the town had actually taken this money into its treasury, or if it held it in the hands of its agent, the state treasurer, and so, in fact, had received the money in legal effect before the passage of the act of 1872, it might be contended that the town might appropriate it to any lawful town purposes. The argument would certainly have great force. It would be said, This money was not given us in trust for this plaintiff, or for such as he. The act merely provides for our partial reimbursement for our war expenses.
[52]
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Foster, J.
This is an action of assumpsit for money had and received, brought by the plaintiff against the town of Andover, under the statute of July 3, 1872, which provides that “if any town or city has received or shall receive the sum of $100, or part thereof, either in money or bonds, for any person counted as part of the quota of such town or city, who has not received any bounty from such town, city, or place, the sum of money or bonds received shall belong to and be the property of the person so counted, or his legal representatives, and may be recovered of such town or city, in an action of assumpsit, as for money had and received.”
The legislation upon this subject, which preceded this act, began in 1864. By the act of Aug. 19 (Pamphlet Laws, cli. 4023, sec. 7), towns and cities were authorized to raise money and appropriate the same as a bounty to each person, except those enlisted in or from the insurgent states, who shall be mustered into the military, naval, or marine service of the United States, or shall have been mustered into said service since the call of the president, dated the 14th day of March, 1864, and prior to the passage of the act, to fill the quota of such city, town, or place; * * such bounty in no case to exceed, in addition to the state bounty, the sum of $100 for each one year’s man, $200 for each two years’ man, $300 for each three years’ man, and in the same proportion for any other term of service.”
[50]*50By the exigencies of the war, men were' demanded for the service of the country. The town of Andover was required to fill its quota. This law was passed to enable it and other towns and cities to do so.
The constitutionality of this enabling-act is not apparently questioned, nor is it of doubtful validity. See Cooley’s Const. Lim. 234. Under this authority the town of Andover raised money, and thus accumulated a town debt.
To relieve the town, in part, of the burden thus resting upon it —Sanbornton v. Tilton, 53 N. H. 438-441 — the act of 1870 was passed — act of July 2, ch. 12 — whereby the state was authorized to issue bonds for the purpose of a limited reimbursement of cities and towns for war expenses incurred by them; and it was provided, that each city, town, &c., shall receive from the state $100 for every man furnished for the military service of the United States, under and after the call of July 2, 1862, and accepted by the United States for the term of three years, and in the same proportion for every man so furnished and accepted for whatever period, the same to be in part payment for any claim upon the state on account of its war debts by any city, town, &c.
The second section of the act provided for a board of commissioners to determine the amount to which each city, town, &c., should be entitled ; and the act of July 15, 1871, ch. 3, “ in addition to ” the act of July 2, 1870, pi’escribed specific regulations for carrying into practical effect the provisions of the act of 1870.
Then followed the act of 1872, which has been recited.
It appears from the report of the commissioners, that the plaintiff enlisted in Co. I, 4th regiment of reenlisted veterans, from the town of Andover, December 25, 1863, for three years, and that he was duly accepted by the United States for that time, and was duly allowed accordingly upon the quota of said town, and that the commissioners had allowed to the town the sum of $100, to be paid by the state to the town on account of the plaintiff’s enlistment and acceptance as aforesaid.
It appears, also, that there had been an assignment of bonds, according to the report of the commissioners, to each town in the state, and that most of these towns had taken and receipted for their proportion of said bonds, according to said assignment, before June, 1872, and that, on June 1, 1872, the small balance of bonds remaining in the state treasury were reported as a liability of the state, and as due to the several towns which had not taken and receipted for their bonds. The town of Andover had not taken or receipted for their share of the bonds which had been thus assigned to said town, and no bonds or money have actually been taken from the state treasury by the town, but they were held by the state treasurer, ready to be delivered to the [51]*51/town whenever the town would receipt therefor and comply with the provisions of the law.
A preliminary question seems to be, whether the town lias, within the meaning of the law, received the money or bonds which have been awarded by the report of the commissioners, but which have never gone into the actual custody of the town.
If the town has not received it — that is, if the state does not hold Ithe money or securities as the agent of the town or in trust for the town — there is the end of this case.
The state does not hold the money or bonds, which the plaintiff seeks to recover, in trust for that individual. It is not pretended that he has any claim other than such as he seeks to enforce, by this action, against the town.
The bonds assigned to the town of Andover by the report of the commissioners, under the act of 1870, are a gratuity given to the town, to relieve them, partially, from the pressure of a grievous burden. Of the legality or constitutionality of the act appropriating such a gift, no party now before the court can well complain. The plaintiff rests his case upon its legality, and the defendants may elect not to receive their proportion or quota of the gift without calling in question the validity of the grant.
If the town of Andover had not, prior to the commencement of this ¡action, August 31, 1872, received the bonds, or their equivalent in money, in fact, or by intendment of law, then, of course, this suit cannot be maintained.
If the town has received the bonds or money, when did it get them ? Was it before or after the passage of the act of July 3, 1872 ? If the bonds or money were, within the meaning and intent of the statute, received by the town prior to the act of July 3, 1872, the question will be presented, whether the legislature had the power by virtue of that act to direct and control the disposition of the bonds or money thus received ; whether they could constitutionally impose upon the town the obligation to pay a portion of it over to the plaintiff.
It the town had not received the bonds or money, within the intent and meaning of the law, prior to the passage of the act of July 3, 1872, then perhaps it might be holden that the town must thereafter-ward receive the bonds or money, if at all subject to the limitations in the nature of conditions imposed by that act, which might perhaps be regarded as if it had been incorporated by way of condition or proviso in the original act of 1870.
If the town had actually taken this money into its treasury, or if it held it in the hands of its agent, the state treasurer, and so, in fact, had received the money in legal effect before the passage of the act of 1872, it might be contended that the town might appropriate it to any lawful town purposes. The argument would certainly have great force. It would be said, This money was not given us in trust for this plaintiff, or for such as he. The act merely provides for our partial reimbursement for our war expenses.
[52]*52We do not recognize any obligation to this plaintiff, for reasons perhaps peculiar to his particular claim, if not upon general grounds ; nor do we recognize the authority of the legislature to assume the judicial functions of the court and adjudicate the.question of our liability to him.
The state gave us this money to do with it as we might please, and imposed no condition, restriction, or limitation upon our disposition of it. The money is ours absolutely, and it cannot be diverted by subsequent legislation. If we have furnished ten men, we are entitled, under the act of 1870, to a thousand dollars, not because these ten men made any contract with or relied on the credit of the state, as they did not, but because we have expended a much greater sum of money for the benefit of the state and the nation, making our own contract with these men. Our claim on the state for reimbursement is independent entirely of the question what kind of contract, no matter how advantageous to us or the reverse, we may have made with these men. Their claim upon us arises out of our contract with them, and not under the law of 1872. The state cannot take the money of the town of Andover and pay it over to Mr. Spaulding.
We should certainly give respectful attention to this line of argument..
If public municipal corporations stand like private corporations, the | money that had once become theirs could not, probably, be reached' in that way; and whether being municipal corporations puts them ’ within the power of the state in this way, is perhaps a serious question, — one, at any rate, not to be avoided.
It is unnecessary to decide whether the funds in the hands of the treasurer are or are not to be regarded as having been received by the town at a date prior to the act of July 3, 1872. The case finds that its proportion or quota of bonds had been assigned to the town prior to June 1, on which day the proportion belonging to the town of Andover was reported, as it has ever since been recognized, as a liability of the state to them; and although the town has not taken it and spent it (as we have little doubt it might lawfully have done, in such a way that these plaintiffs could never have had a lawful claim to recover it), it has never signified its dissent to the acceptance of it; and it may bo argued that the state holds it now as the agent or trustee of the town. Blasdel v. Locke, 52 N. H. 238, 243.
But the town not having in fact taken and appropriated the fund to any specific purpose before the act of 1872, it remains now, as it was then, a specific and designated fund, with an ear-mark upon it, which it may be contended the town holds by its trustee, the state treasurer. And the plaintiff’s claim is, that since the very bond which the state gave to the town as a gratuity in 1870 remained intact and recognizable in July, 1873, the legislature had the right to compel the town to pay it over to him.
By the act of 1864 the town was authorized to raise money in order to pay a bounty to soldiers. The town was authorized, but not required, tq raise money for this purpose. The town did raise money, [53]*53and appropriated it for the purposes designated by the act, thereby assenting to and acquiescing in the authority thus conferred.
Such assent, it has been said,'is a matter which depends upon the free will of municipal corporations. The assent to the authority thus conferred is an act which they may do or not, as they see fit; and in case they think proper to withhold it, the legislature has no power to compel it. Hasbrouck v. Milwaukee, 13 Wis. 37.
Whether the legislature has power, against the will of a municipal'' corporation, to compel its citizens to assume an obligation and to discharge it by taxation, where the obligation is one which does not fall within the ordinary functions or scope of a municipal government, is a very different question, upon which the authorities are not unanimous.
“ There are cases,” says Judge Cooley, “ which deny to the legislature the possession of any such power, and which claim for the municipal organizations the same exemption from compulsory' burdens, outside the circle of their ordinary legal duties, that protects the individual citizen. And even where a moral obligation may fairly be said to rest on the municipality, it is denied, in some cases, that the legislature can convert it into a legal demand, and enforce its payment, though it is conceded that the state may authorize the citizens of the municipality to assume the burden and discharge it, if they choose to do so.
“There are other cases, however, which appear to go to the extent of holding that municipal corporations and organizations are so completely under the legislative control, that, whatever the legislature may permit them to do, with a view to the general benefit, it may compel them to do, whether their citizens are willing or not.”
These considerations are immaterial with reference to the position of these parties under the act of 1864, the validity of which is not called in question, but they become quite important when applied to the act of 1872, by which the town is deprived of the money or bonds acquired under the provisions of the act of 1870, and which the legislature of 1872 has said “shall belong to and be the property of” any person who, having been counted as part of the quota of the town, has not received any bounty from the town, whatever may have been the nature or extent of the obligation or contract under which the person rendered service for the benefit of the town.
A town is a public corporation, deriving its existence and vitality from the act of the legislature. It is a part of the machinery of the state sovereignty which creates it. Over all its civil, political, or governmental powers, the authority of the legislature is supreme and without limitation, unless the limitation is found in some peculiar provision of the constitution of the particular state. Dillon Mun. Corp., sec. 39.
From all which it follows that powers granted may be resumed ; [54]*54privileges conferred may be countermanded ; that which the state has given, it may take away; for all its public functions, powers, and privileges are but subordinate parts of a great political machinery, regulated, controlled, and governed by the head, which is the state. Legislative authority over them extends to a certain if not unlimited control of their funds and revenues; ‘ ‘ and the authority is not abridged because the purpose to which the revenue is to be appropriated is specified in the charter; and the ground of the doctrine is, that such corporations have no vested rights in powers conferred upon them for civil, political, or administrative purposes.” Dillon Mun. Corp., sec. 35; Gutzweller v. The People, 14 Ill. 142; Layton v. New Orleans, 12 La. An. 515.
It has therefore been held that the legislature may repeal the power it had given to cities to grant licenses for the sale of intoxicating liquors, although the money to be derived from the sale of such licenses was directed to be appropriated to the support of paupers within the city. Gutzweller v. The People, before cited.
The distinction, however, between the making of provisions concerning the public revenues in such manner as in the judgment of the legislature may be requisite for the public good (as by the abolition in this case of a source of revenue derived from a sale of licenses), and the diversion of a revenue or fund enjoyed for municipal purposes, and the bestowal of it upon an individual, is too manifest and important to escape observation.
So, too, where, by an act of the legislature, one city wras annexed to and incorporated in another, with a provision that the annexed city, which was less in debt than the other, should be charged only with its own debts; and by a subsequent act it was provided that taxes should be uniform through the entire limits of the enlarged city, the effect of which was to increase the amount of taxes within that portion of the corporation which had been thus annexed to the other, the act authorizing the increased taxation was held to be valid and constitutional. Layton v. New Orleans, before cited; Girard v. Philadelphia, 7 Wall. 1; Montpelier v. East Montpelier, 29 Vt. 12.
It does not necessarily follow, that, because the legislature may control the exercise and manner of enjoyment, to a large extent, of the funds and property of those agen'eies of the government which it has created, therefore the state may directly intervene and take away the public property or funds, and dispose of them at its discretion. Cooley’s Const. Lim. 236.
“According to many courts,” says Judge Dillon, “ municipal corporations proper (incorporated towns and cities), as ordinarily constituted, possess a double character, — the one governmental, legislative, or public; the other, in a sense, proprietary or private.” The distinction and this division of the powers and duties of a municipal corporation into two classes, the one public and the other private, is unsatisfactory to the learned jurist’s mind — Dillon Mun. Corp., sec. 29, and note —but he adopts readily enough the deductions flowing from and based upon the distinction.
[55]*55In its public character, the municipal corporation is subjected to the absolute control of state legislation, subject only to exceptional constitutional limitation. “In its proprietary or private character,” says Judge Dillon, “ the theory is, that the powers of the legislature are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the particular corporation, as a distinct legal personality; and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded as quoad hoc, a private corporation, or, at least, not public, in the sense that the power of the legislature over it is omnipotent.” Dillon Mun. Corp., sec. 39.
In Darlington v. Mayor, &c., of New York, 31 N. Y. 164, Judge Denio declines to recognize the principle of this division of the character of a municipal corporation into two classes — the one public and the other private — and insists upon the legislative right of absolute control of the corporate property. The only point settled by that case was, that an act of the legislature, providing for the compensation, by cities and towns, of parties whose property may be destroyed in consequence of mobs or riots, is constitutional; and the learned judge closes his very luminous and elaborate opinion with the significant remark, that “It is unnecessary to say whether the legislative jurisdiction would extend to diverting the city property to other public use than such as concerns the city or its inhabitants; for this act, if the effect suggested is attributed to the judgment for riot-damages, devotes the property which may be seized on execution to legitimate city purposes, namely, to reimbursing those who have suffered damages on account of the inefficiency of the city authorities to protect private property from the aggressions of a mob.”
Whatever may be the grounds of the distinction we have noticed, and whether founded in good reason and logic, and whether essential or not to the promotion of justice, it is, in our minds, fully recognized in the law; and the weight of authority seems to be in favor of the doctrine that, although municipal corporations are not beyond legitimate legislative authority and control, there ^till may exist rights under contracts and grants, whether legislative or other, which are beyond destruction or impairment by the legislature.
In Terrett v. Taylor, 9 Crunch 43, 52, Judge Story thus forcibly and clearly expresses his views of the subject: “ In respect to public corporations which exist only for public purposes, such as counties, towns, cities, &c., the legislature may, under proper limitations, have a right to change, modify, enlarge, or restrain them, securing however the property for the uses of those for whom and at whose expense it was originally purchased.” And in Pawlet v. Clark, 9 Cranch 292, 336, it was distinctly settled that a legislative grant of glebe lands to a town could not be repealed so as to divest the rights of the grantees.
Chancellor Kent recognizes this doctrine and the authority of these cases. 2 Kent Com. 305.
[56]*56Grants of property and of franchises, coupled with an interest, to public or political corporations are beyond legislative control, equally as in the case of property of private corporations. Story, J., in Dartmouth College v. Woodward, 4 Wheat. 697-700.
Judge Cooley says, — “These cases (from Cranch and Wheaton) draw a distinction between the political rights and privileges conferred on corporations, and which are not vested rights in any sense implying constitutional permanency, and such rights in property as the corporation acquires, and which are protected by the same reasons which shield similar rights in individuals.” And from a review of the cases lie deduces this rule: “ When corporate powers are conferred, there is an implied compact between the state and the corporators, that the property which they are given the capacity to acquire for corporate purposes, under their charter, shall not be taken from them and appropriated to other uses. If the state grants property to the corporation, the grant is an executed contract which cannot be revoked. The rights acquired, either by such grants or by any other legitimate mode in which such a corporation can acquire property, are vested rights, and cannot be taken away.” Cooley’s Const. Lim. 238.
If land is dedicated as a public square, and accepted as such, a law devoting it to other uses is void, because violating the obligation of contracts. Warren v. Lyons City, 22 Iowa 351.
By the act of 1870 the state granted to the town of Andover a certain amount of bonds, to be devoted exclusively towards the reimbursement of the expenditures incurred by the town for war purposes during the rebellion, upon the basis that the amount of such bonds should be the aggregate of $100 for every man furnished by said town for the military service of the United States after a specified period of time.
This was an unqualified, unlimited, unincumbered grant, possessing all the incidents of an executed and irrevocable contract. 1 Pars. Con. 235.
A constitutional act of legislation, which is equivalent to a contract, and is perfected, requiring nothing further to be done in order to its entire completion, is a contract executed. Whatever rights are thereby created, a subsequent legislature cannot impair. If the proviso, com dition, or limitation, enacted in 1872, had been engrafted upon or made a part of the reimbursement act, it would have been binding, and the town would take the benefits of the act, perhaps, with its burdens. Potter’s Dwarris on Statutes 477.
The same rule applies to an obligation created by a constitutional law, which is in the nature of an executory contract, supported by a sufficient consideration.
The law of 1872, declaring a portion of the fund which had been solemnly granted to the town of Andover to belong to and be the property of certain individuals, is invalid, as being contrary to that provision of the Federal constitution, art. 1, sec. 10, which declares that no state shall pass any law impairing the obligation of contracts.
[57]*57We have reached this result, fully sensible of the duty which requires of the judicial branch of the government great circumspection in passing upon the validity of the acts and doings of the legislature, but mindful also of the paramount authority of the fundamental decrees of the general government, and of the necessity for the preservation and protection of the inestimable principle that has been invaded by the legislation which we are thus constrained to declare null and void.
This result renders unnecessary the consideration of all the other questions of law raised by the case; and it is hardly necessary to remark that our decision does not affect the plaintiff’s right to recover any valid claim he may have against the town, founded upon any valid contract he may have made with the town or its agents for services rendered. Judgment on the verdict.
The reports of the state treasurer for June 1, 1872, and June 1, 1873, show that the amount of bonds “ prepared,” in accordance with the original report of the commissioners, was 82,208,000, of which 82,205,595.44 was actually issued.