(dissenting). (\ deem it clear and certain-that the duty which the Act referred to authorized the relators to perform, was a town duty. Nowhere in the Act are the relators made State officers and charged with State duties; but on the contrary they are spoken of as town officers set to transact town affairs j The maintenance of the *158highway of which the relators have the care, cannot be regarded as anything other than a town duty, without imputing to the legislature the intent to inflict on these towns the monstrous injustice of making their inhabitants liable to pay the damages caused by the non-feasance or a misfeasance of a duty not imposed on them by law. The relators are totally unlike the commissioners appointed in the case of the Asylum street railroad crossing. In that case the State, in the exercise of its sovereign authority, appointed its own officers to abate a nuisance dangerous to human life, for the existence of which the three corporations named were jointly responsible. Woodruff v. Catlin, 54 Conn. 277, 295; Woodruff v. N. Y. & N. E. R. R. Co., 59 id. 63.
The relators, although appointed to transact town affairs, are—six of them—not inhabitants of Glastonbury. They were not elected by the inhabitants of that town, nor has that town any control over their conduct. And from so much of the opinion as holds that the order of the relators is obligatory on that town through the town treasurer, I wholly dissent.
(it would be admitted without dispute that it would be incompetent for the legislature to engage in the performance of the affairs of a private corporation, by officers of its own appointment. The legislature chartered the New York, New Haven & Hartford Railroad Company, and may alter or repeal that charter at pleasure; but the legislature cannot appoint a superintendent or a general manager of the affairs of that company, without its consent, for whose acts or negligence the corporation should be liable. Such an appointment, if by any possibility the legislature should ever make one, would probably be held void as not being a legislative act. But if held valid, it could only be on the ground that as the legis-' lature might put an entire end to the existence of that corporation, it could do the same thing by piecemeal or by indirection.
The difficulty with the appointment of these commissioners is not with the power of the legislature to establish agencies for the execution of governmental fun ctions, nor with its power *159to provide for the maintenance of certain public highways through State, as distinguished from municipal agencies, and for the cost of such maintenance by taxation of the inhabitants of those localities most directly interested in such maintenance. The real difficulty is with the power of the legislature, under the provisions of the State Constitution, to give the whole execution and control of duties and powers assigned to towns, to persons in whose selection the towns have no agency direct or indirect, and over whose conduct they have no control.
It will be a surprising doctrine to the people of this State, even if only suggested, that the Constitution by the grant of legislative power has conferred on the legislature the authority to take from them the management of their local concerns and the choice of their own local officers. It would he hardly more surprising to them to be told, that by adopting the Constitution they had granted to their own representatives the legal authority to take away their liberties altogether.
The building and repair of highways has always been one of the principal duties of a town. In Ludlow’s Code of 1650, it was ordered that each town should every year choose one of its inhabitants as surveyor to take care of the highways, with power to call out the persons fit for labor, for as many days as might be necessary to keep the same in repair. Subsequently the work was provided .for by town taxation, and the oversight committed to the selectmen, who were specially charged with mending and repairing the bridges and roads used by the stage that carried the mails. From 1643 to the present time, the duty and the corresponding powers in reference to the support of highways has been recognized as essentially a corporate duty belonging to the towns, to be performed by town officers; New Haven v. Sargent, 38 Conn. 53; Suffield v. Hathaway, 44 id. 521; and it cannot now be maintained that such burden can be imposed on towns, while all the powers necessary for their performance are committed to persons not officers or agents of the town, without holding that the inhabitants of the several towns may be held responsible to the whole extent of their property, for the per-J *160(formance of every corporate duty, without the power of selecting or controlling the persons who are charged with the performance of such duties.
The legislature has appointed the relators, and has authorized them to perform a town duty respecting a highway. If the legislature may do this, it ma}’- appoint the same or other commissioners to perform any or all other town duties. There is no argument which will sustain the former which will not sustain the latter. And if this is the law—that the legislature in this State may take to itself the entire and exclusive government of a town through officers of its own appointment—then this judgment is correct; and if the legislature may not do so, then this judgment is erroneous. Stated broadly and nakedly, the question in this case can be nothing short of this: Is or is not town government in this State a mere privilege conceded bjr the legislature in its discretion, and one which may be withdrawn at any time at its pleasure ? While the majority of the court do not assert so extreme a view, yet the argument of the majority opinion involves the theory of the existence in the legislature of this plenary and sovereign right; and unless such right exists that argument fails.)
It is true that in some decisions the courts of this State have spoken of towns as possessing no inherent, original or reserved powers; but only such powers as have been delegated to them, and which may be regulated and controlled by the legislature. It is from these expressions that the claim is made that towns are nothing but mere agencies which the State employs for the convenience of government, clothing them from time to time with a portion of its sovereignty, but recalling the whole or any part thereof whenever the necessity or the usefulness of the delegation is no longer apparent. In those cases where these expressions have been used, they may not have been inappropriate. In none of them was the actual exercise by the legislature of any such power the subject of the decision. Such expressions, however, are very seldom true in anything more than a general sense. They never are and, in this State, never can be lit*161erally accepted in. practice. There are also cases the conclusion in which is not consistent with the existence in the legislature of the power claimed; and one in which the conclusion is antagonistic. Farrel v. Derby, 58 Conn. 234; Taylor v. Danbury Public Hall Co., 35 id. 430; Burlington v. Schwarzman, 52 id.181.
The people of this State, when they formed the present Constitution, found the whole of its territory occupied by those municipal corporations called towns, each embracing all the inhabitants of a certain portion of the territory. These corporations were governed by their own inhabitants in town meetings, and their affairs were managed by officers chosen by themselves, and who were always inhabitants of the town. And they provided in that instrument that the rights and duties of all corporations should remain as if the Constitution had not been adopted, except so far as therein restricted or limited. Art. X. § 3. They also provided, Art. VI., that electors should only be admitted from the inhabitants of a town, and by the selectmen and town clerk ; and by Arts. III. and IV., that meetings by the electors for the choice of State officers should be held in the several towns and carried on by town officers; and by Art. III. that the House of Representatives should consist of representatives from each town, being electors and residents in that town ; that town representation should be substantially equal, and that no town should be abolished or deprived of its representation without its own consent; aud by Art. X. § 2, that each town should annually elect selectmen, and such other officers of local police, as the laws may prescribe.
(The relation of the towns in this State to the State government, is different from that in other States. Prior to the adoption of the Constitution, the State government consisted mainly of an assembly of delegates from the towns; and those towns had been uniformly treated as entitled to local self-government. While it could not be said that an Act of that assembly vesting the functions of a town meeting, or the duties of selectmen, in a commission appointed by the assembly, would be unconstitutional—strictly there was in *162those days no constitution—yet every one familiar with our history knows that such an Act would have been regarded as revolutionary, and that its passage was practically impossible.
This right of the inhabitants of a town to themselves order the municipal duties assigned to the town, was plainly one of those “ rights and privileges derived from their ancestors,” which the Constitution was adopted “ in order more effectually to define, secure, and perpetuate.” By the several articles of the Constitution above mentioned, that instrument intended to make sufficient provisions to that end. It did guarantee the perpetual existence of the several towns, with selectmen to manage their local affairs and a town clerk to record their doings at town meetings; although it left the variety and duties of the officers of the local police subject 0 to legislative change.
In studying these parts of the Constitution, we should always keep in mind that the terms used had a settled meaning before it was adopted. So far as it relates to the form of administration the Constitution is in the main no more than a recognition and re-enactment of an accepted system. The rights preserved are ancient rights, and the municipal bodies recognized in it and required to be perpetuated, were already existing with known elements and functions. And when the Constitution guarantees the perpetual continuance of towns, it means towns with the same essential characteristics which towns at that time exercised; for if these essential characteristics do not remain, the town as known to the Constitution does not remain. It is the town as it then actually existed, with which the Constitution dealsj
Let us, then, ascertain what a town was as then existing. In that way only can we give to these provisions of the Constitution respecting towns, their full and true effect. The form of words by which a town corporation was created, sufficiently appears in a single instance. In the year 1779 Southington was incorporated; and the record, abbreviated, is that “upon the memorial of the inhabitants of the society of Southington, by their agents shewing that .... and pray*163ing to be incorporated into a distinct town, .... it was Resolved by this Assembly, That the memorialists (i. e. the' inhabitants of the territory named) with all the lands lying within the following limits and bounds, .... be and the same are hereby incorporated into a distinct and separate town, with all the powers and privileges that other towns by law have and do enjoy.” 2 State Records, 429. For all the general purposes of municipal administration, the State was divided only into towns. And what the town was, as an actual living entity, is shown by the statutes then in force. Statutes of 1808, Titles: Towns; Town Meetings; Town Clerks; Selectmen, and Highways. The towns were’ substantially the only territorial subdivisions used. Counties, as municipal corporations or agencies, did not exist. They were the mere territorial limits within which the jurisdiction of the County Courts was exercised, and they were named and designated in connection with the establishment of such courts. 2 Col. Rec. 35. And the courts administered the construction as well as the management of the jails and court houses, as well as the other matters pertaining to the maintenance of such courts. Statutes 1808, Title, Gaols. Counties had no powers except such as were exercised by the courts, and no officers except those appointed by the courts, and a sheriff appointed by the General Assembly. Towns are the only subdivision mentioned in the Constitution, save that the General Assembly is required to appoint a sheriff in each county who shall serve for three years.
These statutes and rules respecting towns were a necessary result from the origin, formation and history of the peculiar form of government in this State. In stating this history, in order to have it as connected as possible, some slight repetition will be made.
^In 1633-4 a strong dissent developed in some prevailing notions of government in the infant colony of Massachusetts Bay. The opposition was strongest in the towns of Dorchester, Newtown, and Watertown. In 1631Watertown had protestéd against paying a tax assessed by the board of assistants, on the ground that they could not be taxed save *164by their own consent. All these towns were foremost in insisting on a general government based on town representation. From these three towns, induced largely by dissatisfaction with the ecclesiastical and centralizing views of the dominant party in the Bay, the pioneers of Connecticut came. By 1636 three towns or plantations were established in Connecticut, and were called Dorchester, Newtown, and Watertown, but shortly after called Windsor, Hartford, and Wethersfield. In March of that year, the General Court of Massachusetts named eight persons “ to govern the people at Connecticut for the space of a year.” At the en d of that year the three towns on their own behalf appointed committees and magistrates who, as a general court, directed the affairs common to the three towns, and so until Jan. 14th, 1638-9. At this time the essential features of town government became fixed and have never since been changed; they were: a town meeting composed of all the inhabitants exercising all power, an executive board for the general management of town affairs, and a constable for the service of the town warrants and the conduct of the necessary physical force, all chosen by the town meeting.
The “ Fundamental Orders ” or Constitution of 1639, was a combination and confederation entered into by the inhabitants and residents of Windsor, Hartford, and Wethersfield, “ to associate and conjoin ourselves to be as one public state or commonwealth,” and to be “guided and governed in our civil affairs,” according to such laws as shall be made in the manner provided. The orders provided that each year there should be held two General Courts, composed of deputies from each town chosen by “ all that are admitted inhabitants in the towns.” To said General Courts was committed the supreme power of the commonwealth, i. e. they only shall have power: 1. to make and repeal laws; 2. to grant levies for the commonwealth; 3. to admit freemen (only those already admitted inhabitants by the towns); 4. to dispose of lands undisposed of (not belonging to some particular town); 5. to discipline either towns or magistrates or any *165other person for any misdemeanor, and to “ deal in any other matter that concerns the good of the commonwealth.”
This power, exclusive and permissive, given to the General Court, developed to the unlimited extent which afterwards characterized it, not so much from this (the 10th order), as from the 8th order which provided that Windsor, Hartford and Wethersfield, should each have power to send four of their freemen as their deputies to every General Court, “ which deputies should have the power of the whole town to give their votes and allowance to all such laws and orders as may be for the public good, and unto which the said towns are to be bound.” The power which any one of said General Courts might exercise, was unlimited; but the power was that of the several towns exercised by its deputies for the purpose of binding the towns by all laws and orders made for the public good. For this purpose the inhabitants of the towns, as self-governing bodies, did “ associate and conjoin themselves to be as one public state or commonwealth,” and did “for ourselves and our successors (i. e. inhabitants of each town) and such as shall be adjoined to us at any time hereafter (i. e. towns hereafter admitted) enter into combination and confederation together,” to be governed by such laws as are made in accordance with the fundamental orders. And as a further means by which each town might protect itself against unequal treatment by the confederacy, the final order prohibits the levy of any tax on the towns, unless the amount of the whole tax to be paid by each town is apportioned by a committee consisting of an equal number out of each town. Five years later Farmington was admitted, and the order provided: “ They also (the inhabitants) are to have the like liberties as the other towns upon the river, for making orders among themselves.” 1 Col. Rec. 134. About the same time Southampton on Long Island was admitted. Owing to its separation by the Sound from the jurisdiction of Connecticut, and the greater difficulties of participating in the doings of the General Court, as well as the doubt whether its inhabitants were included among those subject to the power of the original towns, a formal combination was *166negotiated, by which the town of Southampton—as the then river towns had already done—did “ by their said deputies, for themselves and their successors, associate and join themselves to the jurisdiction of Connecticut.” 1 Col. Rec. 566. In 1662, fortified by the Charter of Charles II. in their claim of jurisdiction, the General Court admitted by simple vote the town of Southold, L. I., and the following year ordered that “ Southold shall have and enjoy the same privileges as Southampton doth by virtue of their combination.” 1 Col. Rec. 886, 406.
The fundamental orders consummated the union of independent and self-governing bodies for the purposes of their own better government and of extending their jurisdiction. The combination provided for an exercise of power limited only by the fact that the governing body could last but six months, and must consist of deputies from each town clothed with the whole power of the town; but by the very terms of the combination each town must continue a self-governing body; and from that time on the power of local self-government was recognized as necessarily involved in the existence—as well of the original towns who had associated and conjoined themselves to be as one state, as of those described as such towns “ as shall be adjoined to us at any time hereafter.” The fundamental orders were adopted January 14th, 1638-9. The first General Court was held in May, 1639; the second in September. There was an adjourned meeting of this court held in October; and in this the existing self-governing power of the towns was recognized. “The towns of Hartford, Windsor and Wethersfield, or any other of the towns within this jurisdiction, shall each of them have power to dispose of their own lands undisposed of, .... as also to choose their own officers, and make such orders as may be for the well ordering of their own towns, being not repugnant to any law here established.” 1 Col. Rec. 36. That this declaration was not regarded as a law necessary to give towns power not before possessed, is certain; because if it were so, such law would have been passed at the first court held in the preceding May, which *167held several sessions, or the illegal acts previously passed by the towns would have been validated; because a law necessary to enable a town to exercise any power, must have been approved in Ludlow’s Code, adopted in 1650; and because if a law were necessary to enable towns to dispose of their own property, it was equally necessary to have süch a law to authorize them to establish and define the duties of their principal officers. Now the office and duty of townsmen (not known as selectmen until 1691 or later) had been established in the several towns, with power defined by a town vote, prior to the adoption of the fundamental orders; Hartford Town Records, Jan. 1, 1638-9; and these votes remained unchanged except by town meetings, for many years afterwards. In fact the towns after, as well as before the “ Constitution ” of 1639, conducted by town 'meeting their own affairs and chose their own officers, and continued so to do until the Constitution of 1818 ; the only interruption being an edict of Sir Edmund Andros during his brief usurpation, whieh strictly defined the duties of selectmen, and prohibited any town meeting, except the necessary annual one, for their choice. 3 Col. Rec. 429.
In 1818 the “ town ” was a territorial and municipal corporation, exercising the rights of local self-government through a town meeting and officers of its own choosing. It had existed with these rights from a time prior to the combination of the first towns under a joint jurisdiction. It had been continuously the main instrument by which all the operations of government were set in motion and carried on; and when the provisions of the Constitution speak of “ towns,” they speak of that kind of a municipal corporation whose character, rights and privileges, had been thus defined and settled for nearly two centuries.
After a struggle of more than thirty years, the General Assembly yielded to the general demand that the people have an opportunity to frame a constitution for their own government; that is, embody in one fundamental plan “ their supreme original will, in respect to the organization and perpetuation of a State government; the division and distribu*168tion of its powers; the officers by whom those powers are to be exercised; and the limitations necessary to restrain the actions of each and all for the preservation of the rights, liberties and privileges of all; .... to which the legislature, as well as every other branch of the government, and every officer in" the performance of his duties, must conform.” Opinion of the Judges, 30 Conn. 593. For this purpose, in May 1818, a resolution was passed recommending to the people to assemble in their respective towns at their usual place of holding town meetings, and having chosen their presiding officer, to elect as many delegates as said town now chooses representatives, to meet in convention in the following August, and when so convened, if by them deemed expedient, to “ proceed to the formation of a constitution of civil government for the people of this State.” A copy of which constitution, when so formed, was to be transmitted by said convention forthwith to. each town clerk, to be by him submitted to the voters in his town, assembled at such time as said convention might designate, for their approbation and ratification. Said constitution, “ when ratified and approved by such majority of said qualified voters convened as aforesaid as shall be directed by said convention, shall be and remain the supreme law of this State.” Journal of Const. Conv. p. 5. The committee which framed this resolution, in their report say, that “ from resolutions adopted in many towns, and petitions from .... citizens in others,” they can entertain no doubt of a general manifestation of a desire for “ the establishment of a Constitutional Compact; ” and. that the political happiness heretofore enjoyed “ is to be ascribed to other causes, rather than to any peculiar intrinsic excellence in the form and character "*■ of the government itself. Destitute of fundamental laws defining and limiting the powers of the legislature, the citizen has no security against encroachments on his most sacred rights, and violations of the first principles of a free government, except what may be found in the dependence of that frbody on the frequency of popular elections. Yet even these boasted barriers against arbitrary power may at any time be *169prostrated by the legislative will.” J. H. Trumbull’s Notes on Const, of Conn. 48.
Upon the ratification by a majority of the people of the State, of the Constitution formed by the delegates from each town appointed for that purpose in town meetings, the former government by General Assembly was finally and forever dissolved. The people in the exercise of their sovereignty, established a new government in their separate and independent departments, whose powers were to be exercised and exercised only, in accordance with their “supreme original will embodied in the constitution.” As declared in its preamble, the main object in establishing this Constitution by the people, was “ in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors.” This purpose was accomplished, first by the declaration of certain principles of free government, which were made a fundamental condition on which all powers to each department of government were granted; and second, by incorporating into the framework of the government established, such provisions as were deemed apt and necessary to preserve the most essential of their ancient privileges. Among these the one cherished above all others was the right and privilege of local self-government as represented in the towns, the town meeting, and the town officers. The town was the germ from which all government in Connecticut has developed; and under the Constitution, as this court has recently said, “ the annual town election is the single entrance to our whole system of State government.” O'Flaherty v. Bridgeport, 64 Conn. 165. Through all its history it had played the, most conspicuous part; with all the arbitrary power from time to time exercised by the General Court, the ordering of town affairs through its own officers had never been disturbed^ The suppression of the town meeting was associated with tyranny under the usurpation of Andros, and its maintenance was by common consent deemed both the source and protection of that sturdy independence and respect for law which had ever characterized our people. It was to be expected that when the delegates *170from the towns met in convention to form a constitution that should perpetuate their ancient rights and privileges, a local self-government would not fail to be secured; and so we find this principle embodied in the whole frame-work of the new government.
When Art. VIII. provides that electors should only be admitted from the inhabitants of a town and by the selectmen and town clerk of the several towns, the perpetual existence of the several towns with an executive board to manage their affairs and a town clerk to record the doings at town meetings, is guaranteed. The same is true when Art. III. prohibits any meeting of the electors for the choice of State officers, except in the towns and when carried on only by town officers; and the same article, in providing that the House of Representatives should consist of representatives from each town, being electors residing in that town, and that town representation shall be substantially equal, and that no town should be abolished or deprived of its representation without its consent,—not only established a legislative department where the people, as corporators of town corporations are represented in the lower branch, and as individuals in the upper branch, but guaranteed the right and privilege in the inhabitants of each town to remain so long as they will a town corporation.
The legislature may regulate the conduct of the town corporation, may determine the local duties to be assigned to them—and in that sense the towns derive their powers from the legislature,—but the possession of some local duties and powers, the administration of such duties by themselves or their own officers, is inherent in the towns which the Constitution makes the basis of the new government, and the legislature has no power to destroy this town. The Constitution assumes the existence of towns as local municipalities, and contemplates that they shall continue as they have hitherto been. It does not expressly provide that every portion of the State shall have a town organization. It names certain officers who are to be chosen by the inhabitants of the towns, and confers on the inhabitants the right to choose these officers; *171but it does not define their duties, nor preclude the legislature from establishing new officers, and giving the incumbents the general management of the municipal affairs. If, therefore, there are no restraints imposed upon the legislative discretion beyond those specifically stated, the towns of this State might be abolished and their people subjected to the rule of commissioners appointed at the State Capitol. The people of these towns might be kept in a sort of pupilage for any period of time, or to any extent the legislature might choose. And it assumes either an intention that the legislative control should be constant and absolute, or on the other hand that there are certain fundamental principles in our general frame-work of government, which were within the contemplation of the people when they agreed upon the Constitution, subject to which the delegation of authority to the several departments of government was made. That this last is the case, appears too plain for serious controversy. The implied restriction upon the power of the legislature as regards local governments, though their limits may not be as plainly defined as express provisions might have made them, are nevertheless equally imperative in character, and whenever a question arises that is clearly within them, there is no alternative but to bow to their authority.
Article X., in providing that each town shall annually elect selectmen and such officers of local police as the laws may prescribe, guarantees the management of town affairs by town officers of their own choice. By directing the selectmen, the more modern name for the ancient townsmen,—to whom had been committed the important affairs of the town since the first settlement of the river towns,—to be elected by each town annually, the direction that all officers and agents of the town shall derive their appointment from the town, is affirmed by an implication so absolute as not to be escaped. Otherwise every officer and agent of the town, except selectmen and the local police prescribed by law, may be appointed by the legislature. The town clerk is certainly not a selectman ; if he is an officer of local police he is not such an one “ as the laws may prescribe; ” his title comes directly from *172the Constitution; yet no one would have the hardihood to claim that the next legislature may appoint every town clerk for a term of twenty years. The selectmen must be elected by the towns annually, because they are the ordinary and permanent agents of the town; and unless this provision means that all these agents must derive their authority from the town, then the legislature may direct that the town duties appertaining to selectmen, as well as every function of a town, shall be performed by special town agents to be appointed by the legislature. I do not understand the majority of the court to justify such legislation; plainly it would be void, but it would be void only because the Constitution, in placing a town beyond the power of the legislature to destroy, takes under its protection the right—without which the towns of the Constitution cease to be municipal corporations and become something unknown to our laws—of self-government through its own officers and agents, in all those matters included by law within its municipal powers and duties.
This right of local self-government is assured by the provisions of Arts. III. VI. and X. of the Constitution. It enters into the whole frame-work of the government; because of its existence, the continuance of the body of electors, the election of State officers, the constitution of the House of Representatives, were made dependent on the towns and subject to the specific provisions mentioned. A guaranty so bulwarked should be more potent than any naked restriction. When the Bill of Rights forbids the taking of private property for public use without compensation, it forbids the taking of such property for any but a public use ; and the guaranty implied is not less sacred than the guaranty expressed.
When, therefore, the legislature having included within the municipal duties of Glastonbury and the four other towns named, the maintenance of the highway described, it could not appoint the agents who on behalf of the town were to exercise those duties and powers. “ The theory of the Constitution is, that the several .... towns .... are, of right, entitled to choose whom they will have to rule over them ; *173and that this right cannot be taken from them and the electors and inhabitants disfranchised by any act of the legislature, or of any or all of the departments of the State government, combined.” The People ex rel. Bolton v. Albertson, 55 N. Y. 50, 56. “ Local self-government having always been a part of the American and English systems, we shall look for its recognition in any such instrument. And even if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view. Cooley, Const. Lim. (6th Ed.) 47; The People v. Hurlbut, 24 Mich. 44; Park Commrs. v. Detroit, 28 id. 228; The People ex rel. McCagg v. Chicago, 51 Ill. 17. “ The right of local self-government cannot be taken away, because all our constitutions assume its continuance as an undoubted right of the people, and as an incident to republican government.” Cooley, Const. Lim. (6th Ed.) 207. “ In the examination of American constitutional law, we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subject upon which the power is to operate. In contradistinction to the governments where power is concentrated in one man, or one or more bodies of men, whose supervision and active control extends to all the objects of government within the territorial limits of the State, the American system is one of complete decentralization, the primary and vital idea of which is, that local affairs shall be managed by local authorities, and general affairs only by the central authority.” Cooley, Const. Lim. (6th Ed.) 223; Ordronaux, Const. Legis. 62.
This opinion has been drawn out further than was intended. The question of local self-government, as an ingredient essential to constitutional administration, has been set forth so clearly in the language of Judge Cooley, in People v. Hurlbut, 24 Mich. 44, 105, already cited—a case in which the legislature had undertaken to appoint commissioners to govern the city of Detroit—that I quote the passage in full. After reviewing the history of local and municipal government in various States, he said:—
*174“In view of these historical facts, and of these general principles, the question recurs whether our State Constitution can be so construed as to confer upon the legislature the power to appoint for the municipalities, the officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it involves these consequences: As there is n'o provision requiring the legislative interference to be upon any general system, it can and may be partial and purely arbitrary. As there is nothing requiring the persons appointed to be citizens of the locality, they can and may be sent in from abroad, and it is not a remote possibility that self-government of towns may make way for a government by such influences as 'can force themselves upon the legislative notice. ... As the municipal corporation will have no control, except such as the State may voluntarily give it, as regards the taxes to be levied, the buildings to be constructed, the pavements to be laid, the conveniences to be supplied, it is inevitable that parties, from mere personal considerations, shall seek the offices, and endeavor to secure from the appointing body, whose members in general are not to feel the burden, a compensation such as would not be awarded by the people, who must bear it, though the chief tie binding them to the interests of the people governed might be the salaries paid on the one side and drawn on the other. As the legislature could not be compelled to regard the local political sentiments in their choice, and would, in fact, be most likely to interfere when that sentiment was adverse to their own, the government of cities might be taken to itself by the party for the time being in power, and municipal governments might easily and naturally become the spoils of party, as State and National offices unfortunately are now. All these things are not only possible, but entirely within the range of probability, if the positions assumed on behalf of the State are tenable. It may be said that these would be mere abuses of power, such as may creep in under any system of constitutional freedom; but what is constitutional freedom ? Has the administration of equal laws by magistrates *175freely chosen no necessary place in it? Constitutional freedom certainly does not consist in exemption from governmental interference in the citizen’s private affairs; in his being unmolested in his family, suffered to buy, sell and enjoy property, and generally to seek happiness in his own way. All this might be permitted by the most arbitrary ruler, even though he allowed his subjects no degree of political liberty. The government of an oligarchy may be as just, as regardful of private rights, and as little burdensome as any other; but if it were sought to establish such a government over our cities by law, it would hardly do to call upon a protesting people to show where in the constitution the power to establish was prohibited; it would be necessary, on the other hand, to point out to them where and by what unguarded words the power had been conferred. Some things are too plain to be written. If this charter of State government which we call a constitution, were all there was of constitutional command; if the usages, the customs, the maxims, that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests, the precepts which have come from the revolutions which overturned, tyrannies, the sentiments of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or legislature ata distance to do so,—if a recognition of all these were to be stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people, that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expressions, have seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give,—this living and breathing spirit, which supplies the interpretation of the words of the written charter, would be utterly lost and gone.
*176“ Mb,. Justice Story has well shown that constitutional freedom means something more than liberty permitted; it consists in the civil and political rights which are absolutely guaran ied, assured and guarded; in one’s liberties as a man and a citizen,—bis right to vote, his right to hold office, his right to worship God according to the dictates of his own conscience, his equality with all others who are his fellow-citizens ; all these guarded and protected, and not held at the mercy and discretion of any one man or of any popular majority.—Story, Miscellaneous Writings, 620. If these are not now the absolute right of the people of this State, they may be allowed more liberty of action and more privileges, but they are little nearer to constitutional freedom than Europe- was when an imperial city sent out consuls to govern it. I The men who framed our institutions have not so understood the facts. With them it has been an axiom, that our system was one of checks and balances; that each department of government was a check upon the others, and each grade of government upon the rest; and they have never questioned or doubted that the corporators in each municipality were exercising their franchises under the protection of certain fundamental principles which no power in the State could override or disregard. The State may mould local institutions according to its views of policy or expediency ; but local government is matter of absolute right; and the State cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the State not only shaped its government, but at discretion sent its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the ople full control of their local affairs, or no control at all
ín this State we are not obliged to invoke the underlying principle of American constitutional law, in order to protect the inhabitants of our towns in their right to local self-government ; the express provisions and necessary implications of our own Constitution plainly guarantee that right. Therefore the Private Act by which the legislature under*177took to appoint these relators to execute the powers and perform the duties committed by the Public Act to the town of Glastonbury and the four other towns, as town corporations, violates a clear mandate of the Constitution, and to that extent is void.
I think there is error in the judgment of the Superior Court.