*368On motion of plaintiffs in error, tbe cause afterward came up for re-hearing.
The actual legislation of Congress furnishes striking illustrations of the practical application of the principles settled in the foregoing decision. In most cases, where the administrative powers of the legislative department come to be exercised, it will be found that Congress contents itself with indicating the general end to be accomplished, and leaves to the executive department the selection of the appropriate scheme for the attainment of the proposed end. It may be proper to cite a few of the early acts of Congress to illustrate this position. The constitution confers on Congress the power “to raise armies.” On the 29th of September, 1789, Congress passed the first act on this subject; and it was provided “that, for the purpose of protecting the inhabitants of the frontiers from the hostile invasions of the Indians, the President is authorized to call into service, from time to time, such part of the militia of the States as he may judge necessary for the purpose aforesaid.” (1 Sto. Laws U. S. 69.) This provision was temporary, but was made perpetual at the next session. (Iü. 90.) By the act of March 3,1791, the President was authorized, in his discretion, to raise a body of cavalry, to serve for such time and on such terms as he should deem it expedient 4to prescribe. (IÜ. 205.) By the act of March 5, 1792, the President was “ authorized from time to time to call into service, and for such periods as he may deem requisite, such number of cavalry as in his judgment may be necessary for the protection of the frontiers.” And also, “in case he shall deem the measure expedient, to employ such number of the Indians, and for such compensation, as he may think proper.-” {Id. 223.) By the act of February 28, 1795, the President was authorized, in certain exigencies, to call forth such number of the militia as he might deem necessary. {Id. 3'89.) The Supreme Court of the United States held this act to be constitutional, and that the President was the sole judge of the existence of the exigency. (Martin v. Mott, 12 Wheat. 19.) Congress is empowered by the constitution “to provide a navy.” By the act of June 5, 1794, the President was .authorized, if it should appear to him to be necessary, to purchase or build ten vessels, and to equip the same as galleys or otherwise. Congress is also vested with power “to regulate commerce with the Indian tribes.” By the act of July 22, 1790, the President was authorized to appoint a superintendent, and to issue licenses to trade with the Indians; and the persons licensed were to be “ governed, in all things touching said trade and intercourse, by such rules and regulations as the President shall prescribe.” The power to coin money and regulate the value thereof , is vested in Congress. By the act of March 3,1795, the President was authorized, whenever he should deem it for the benefit of the United- States, to reduce the weight of the copper coin, and give notice thereof by proclamation. (1 Sto. Laws U. S. 407.) Under the power to establish the permanent seat of government, Congress, by the act of July 16, 1790, authorized the President to appoint three commissioners, who, under his direction, were to mark out by metes and bounds a district of territory on the Potomac river, which district should become the seat of government. And the commissioners were further empowered to procure suitable grounds for public buildings, and, according to plans to be approved by the President, to erect suitable buildings for the use of the government. {Id. 101.) The constitution confers on Congress the power to regulate commerce. This power has been held to embrace the laying of embargoes, the erection of light-houses, and the improvement of ports and harbors. In these particulars the power has been freely delegated by Congress to executive officers. By the act o£ June 4,1794, the President, during the recess of Congress, was authorized, whenever in his opinion the public safety shall require, to lay an embargo on ships in port, and continue or revoke the same whenever he shall think proper. {Id. 342.) By the act of August 7, 1789, it was directed that a light-house should be erected near the mouth of Chesapeake Bay, at such place as the President should direct. {Id. 33.) So, by the act of March 3, 1797, the Secretary of the Treasury was authorized to cause buoys to be placed in and near the harbor of Boston, for the security of navigation. {Id. 465.) Further references illustrating the point under consideration might be made ; for the practice of delegating to the President and subordinate officers the administrative powers conferred on Congress has been continued to the present day. But it is believed .that enough has been presented to show that the position of the defendants cannot be maintained. The practice of our own Legislature has always conformed to that of Congress in the delegation of its administrative powers. Among the early acts of the Territorial Legislature was the general road law of 1806, by which the power of laying out, constructing, and repairing public highways was delegated to the courts of quarter sessions for their respective districts. (1 Terr. Laws, 86.) By the act of November 10, 1808, it was provided' that tbe governor was to appoint commissioners to mark out a road from St. Louis to New Madrid, and the same, if approved by the governor, was declared to be a public road, to be constructed by the several districts, under the order of the courts of quarter sessions. {Id. 285.) The making of roads, bridges, and other public improvements, was, by the constitution of 1820, enjoined upon the General Assembly as a duty. Practically, we know that this business has always been committed by the General Assembly to subordinate tribunals, municipalities, chartered companies, and individuals. •The right of eminent domain is a high attribute of sovereignty, but it has rarely if ever been directly exercised by the- State. From the earliest days of the government this right has been freely delegated by the Legislature. The attention of the court has been directed to the circumstance that the powers to pave the streets and to repair the streets are conferred upon the council by the same clause of the charter. Now, it is obvious that these powers are of the same character. If the one is a power “ strictly and exclusively legislative,” so is the other likewise. The unreasonableness and inconvenience of such construction are manifest. The city would never have had power under its charter to adopt any general system of repairs, for such system would necessarily involve an illegal delegation of legislative authority. In answer to this the other side is content to cite an amendatory act, passed in 1855, vesting authority in the city engineer to repair the streets. This amendment might relieve the council of St. Louis from some practical embarrassment, but it furnishes no answer to the argument as to the nature of the power. Tn fact, it seems to bear strongly against the doctrine of the other ■side; for, if the power to repair be taken as properly legislative, it is surprising that the General Assembly should confer it on an inferior ministerial officer. Besides, the inconveniences above alluded to would continue; for the engineer, clothed with legislative power, could not act by deputy, and the business of repairing all the streets and alleys of this great city, covering more than twenty square miles, would be devolved upon one man. There are in this State more than thirty chartered cities in addition to St. Louis. Iu every one of the charters the powers to pave and repair streets are given to the council in one and the same clause of the charter. In none of them is any power to repair conferred upon any other officer. It is manifest, therefore, that any fanciful distinction established upon a particular amendment to the charter of St. Louis, if it could avail to relieve the defendants in the present case, would tend to cripple all the other cities in the exercise of their power. The case of St. Louis v. Oetersris regarded by the plaintiffs’ council as decisive of the present controversy. The charter authorizing the construction of sewers declares that “ sewers shall be made of such dimensions as may be prescribed by ordinance.” It was contended by counsel in that case that the' language of the charter was imperative, and that the ordinance delegating to the engineer the power to fix the dimensions of the sewer was void; consequently, the work was illegally done, and the tax-payer could not be compelled fo pay for it. Judge Holmes, in giving the opinion of the court, adopts the views of the Supreme Court of the United States in Wayman v. Southard, and plainly declares that the power conferred on the council was ■one which it might exercise itself or might delegate to the engineer. The other side lays great stress on the circumstance that the power.of the council is limited to cases “ where the city council shall deem it necessary.” But evidently these words have no particular effect. A power given to do a thing is not at all affected by the addition of such words as £ £' whenever deemed necessary,” or ££ expedient,” or ££ proper,” for the person who is to do the thing is made the judge of the qualification. All power conferred on public officers is .a trust, and it is always implied that the power is to be exercised with prudence and discretion. No change, therefore,'in the nature of the power is effected by expressing qualifications that are always implied. So that we come back to the question with which we started, whether the particular power in controversy was ££ strictly and exclusively legislative” and could only be exercised by the hands to which the charter directly commits it. Hitchcock & Lubke, and Voorhies & Mason, for defendants in error. There is a vital, obvious, and broad distinction between the right of the National or State Legislature to confer discretionary power on agents or officers appointed to discharge public duties, on the one hand, and the right oj a private or municipal corporation to hand over to a third person the exercise of a discretionary power, judicial in its nature, which by the terms of the charter is expressly committed to such corporation. In governmental affairs it is unavoidable that in some cases and to some extent a power committed to the Legislature shall be exercised by public officers having to a certain extent discretionary powers. In other cases the Legislature itself cannot delegate its own discretion; and the Supreme Court of the United States, in Wayinan v. Southard, 10 Wheat. 1, expressly recognizes the existence of such a distinction. To deny it would be to say that Congress or the State Legislature must provide in detail for everything which is or may be required to be done under authority of law. We contend for no such absurdity. But when one of these public officers, whether a sole agent or a municipal corporation, has been created, and certain duties and powers expressly intrusted to it, and a condition prefixed to the exercise of such powers or duties which requires the exercise by such officer or such corporation of its judicial discretion, then this trust — this discretion — cannot be delegated. And this is the case before the court. The ordinance of a city corporation directing the construction of the work within the general .scope of its powers is a judicial act. (Kavanagh v. Brooklyn, 38 Barb. 237.) Here the trust reposed expressly in the “common council” was to determine — to judge — whether or not a given piece of repaving was necessary. Such a trust as this-^-sueh a judicial exercise of their official discretion — could not be delegated. If they could delegate it to the mayor (who is not mentioned in the charter in that connection), why not to the contractor as well.? They passed an ordinance which does not pretend to contain or to imply the forming of any opinion whatever; on the contrary, it is left discretionary with the mayor whether even he will form an opinion, much less act on it. What has such a case as this to do with’the right of Congress to empower the President to determine whether or how far he shall exercise, through the machinery provided by Congress, the executive power which the United States constitution commits to him as constituting one department of the government ? In truth, if the doctrine of the right “ to delegate legislative power,” so earnestly contended for by the plaintiffs, be applicable to this city charter, then what is to prevent the city council from ‘.‘delegating” to the mayor, orto any one of their own number, by one sweeping ordinance, the discretionary power to do any other thing which the charter makes it their duty as a council to do ? Why cannot the mayor, or the president of the council, if authorized so to do, “whenever and wherever he deems it necessary,” take charge of the whole city government, and ‘ run it ” to suit himself ? It is noticeable that, though the books are full of cases involving questions of corporate power like this, no case cited by the plaintiffs even intimates such a view as the one above referred to. All the citations are made by the -defendants, and are on the other side. Wagner, Judge,delivered the opinion of the court.
This case was decided at the October term of this court, and, at the urgent solicitation of the counsel for the plaintiffs in error,' a re-hearing was granted. The case has now been re-argued with learning and distinguished ability by the eminent counsel, and I will proceed to state the reasons for the conclusions we have reached. It will be unnecessary to give any further statement than that contained in the previous opinion. The whole question is one of power, and resolves itself into the simple issue whether the common council, in delegating the authority to the mayor, acted within the prescribed sphere of their duties, as limited and defined by the city charter, or whether they transcended their legitimate scope and authority, so that their action was unwarranted and void.
Corporations differ from individuals. They have no powers except such as are expressly granted in the charters, and such as are auxiliary or necessary to the proper exercise of the powers conferred ; and all statutes or charters creating corporations are to be strictly construed. (Blair v. Perpetual Ins. Co., 10 Mo. 559 ; Beatty v. Knowles, 4 Pet. 152 ; Penn. R.R. Co. v. Canal Com., 21 Penn. St. 9 ; The People v. Utica Ins. Co., 15 Johns. 857.) Their charter is the constitution which authorizes them to act; it is in the nature of a grant of powers, and they can exercise such powers and such only as are contained therein. If specific modes and forms are pointed out to govern in their proceedings, such modes and forms must be pursued. In the case of Head et al. v. The Providence Insurance Company, 2 Cranch, 169, Chief Justice Marshall, in speaking of corporate bodies which have only a legal existence, said: “The act of incorporation is to them an *376enabling act; it gives them all the power they possess ; it enables them to contract, and, when it prescribes to them the mode of contracting, they must observe the mode, or the instrument no more creates a contract than if the body had never been incorporated.”
In The Farmers’ Loan and Trust Company v. Carroll (5 Barb. 49), the Supreme Court of New York said: “When a corporation relies upon a grant of power from the Legislature to do an act, it is as much restricted to the mode prescribed by the statute for its exercise as the thing allowed to be done.” Now, the Legislature, in the delegation of power in the city charter, had the undoubted right to impose such restrictions as it saw proper ; and if it deemed it proper and wise to require an act of legislation on the part of the city council in the matter of the repavement of streets, or that they should act in a certain way or on certain conditions, the requirements must be complied with, else the proceedings will be-void. A municipal corporation must conform strictly to the statute giving it power, or its acts will have no vitality. In Thompson v. Schermerhorn (2 Seld. 92), the act of the Legislature “ relative to the city of Schenectady” authorized that city to make “by-laws and ordinances ordering and directing any of the streets to be pitched, leveled, paved, flagged, etc., or for the altering or repairing the same, within such times and in such manner as they may prescribe, under the superintendent.” The common council passed an ordinance by which they directed State street, between certain points, to be “pitched, leveled, and flagged, in such manner as the city superintendent, under the direction of the committee on roads of the common council,' should direct and require.” Here, it will be observed that, instead of the city council prescribing the time and manner, they authorized the work to be done by the city superintendent, under the direction and requirement of the committee on roads of the common council, just as in this case it was ordered to be done by direction of the mayor.. Yet the Court of Appeals held that the ordinance was void, because it did not prescribe the manner in which the street and sidewalks were to be pitched, leveled, paved, and flagged; that the common council were required by the statute to *377determine, themselves, the manner in which the improvement should be made, and could not delegate that power to any officer or committee of the corporation. The boots are full of cases supporting this view, but it is unnecessary to cumber this opinion with numerous citations of authorities.
The power of ordering the streets to be repaved could be exercised only by passing an ordinance when the city council deemed it necessary, or when a petition was presented by the owners, or a major part of those owning lands- or lots in any paved street, requesting it to be done. There is no other mode pointed out by the charter, and the mode here expresses the measure of power. The learned counsel for the plaintiffs in error have attempted to obtain aid in support of the doctrine they contend for by referring to the action of the general government in investing the President with certain powers. But I am unable to perceive any analogy between the cases. In the one case, by every rule of construction, the corporation is confined within the exact limit of its chartered powers ; in the other case the government is invested with the attributes of sovereignty, and always has resorted, and necessarily must resort, to many things lying within the vast domain of implied power.
We adhere to the former opinion given in this case, and. order the judgment to be affirmed.
The other judges concur.