Municipalities are public corporations created by the legislature for political purposes, with political powers, to be exercised for purposes related to the public good, in the administration of civil government[i]. Municipalities are instruments of government subject at all times to the control of the legislature with respect to their duration, powers, rights, and property[ii].
It is a basic principle of law of municipal corporations that such corporations possess and can legally exercise only such powers that are expressly granted[iii]. Generally, municipalities possess only such powers conferred upon them by the legislature. It is well settled that municipal corporations have no inherent powers and can exercise only those powers which were expressly granted to them by a statute[iv].
In Osceola v. Whistle, 241 Ark. 604 (Ark. 1966), the court observed that a municipal corporation possesses and can exercise the following powers: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation.
Generally, a state legislature cannot delegate to municipalities its power to enact laws of a general nature. However, the authority of a state to regulate under federal statutes includes the authority to delegate the enactment of local regulations to local authorities. It is to be noted that the legislature may delegate to municipal corporations the power to adopt and enforce particular ordinances, even though general statutes exist relating to the same subjects. A municipal corporation may exercise police power on municipal concerns which are also proper for state legislation[v]. Therefore, a state legislature can delegate its power to a municipal corporation for municipal purposes, to be exercised within the municipal limits, police power, the power of taxation, and the power of eminent domain.
Generally, the powers delegated to municipal corporations are strictly construed. However, the rule of strict construction cannot be used to defeat the purpose for which the power is granted, and a liberal construction of a corporate power will be adopted to fulfill the intention of the legislature. Similarly, the rule of strict construction will not apply to the mode adopted by the municipality to carry into effect powers granted, if the mode is not limited or prescribed by the legislature, and is left to the discretion of the municipal authorities[vi].
It is to be noted that a municipality cannot transfer control of its governmental functions to another entity, if there is no specific constitutional authorization. In Belleview v. Belleview Fire Fighters, 367 So. 2d 1086 (Fla. Dist. Ct. App. 1st Dist. 1979), the court observed that a municipality cannot contract away the exercise of its police powers.
Municipal corporations exist and act in a dual capacity as:
- Public or governmental,
- Private or proprietary.
In its public or governmental capacity, a municipal corporation acts as the agent of the state for the benefit and welfare of the state as a whole. However, when it acts for the peculiar and special advantage of its inhabitants, rather than for the good of the state at large, the city acts in a private or proprietary capacity[vii].
Thus, municipal corporations possess a dual capacity. In a public capacity, they exercise the right arising from sovereignty, and while in performance of related duties, their acts are political and governmental. Whereas in a private capacity, the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act on behalf of the municipality in their corporate or individual capacity, and not for the state or sovereign power[viii].
It is to be noted that a municipality has the power to create and maintain parks and to construct public buildings[ix]. The powers of a municipal corporation are not limited to providing for police, pavements, water, light, sewers, docks and markets. Rather, it is held that a municipality may minister to the comfort and health of its citizens, and may educate, instruct, please and amuse its inhabitants[x]. The municipal corporations may use public money for statues, parks, scenic roads, and other public improvements that promote the general welfare by providing for clean air or recreation. The money can also be used for educating the public, or by inspiring sentiments of patriotism, or of respect for the memory of worthy individuals. Generally, anything calculated to promote the education, recreation, and pleasure of the public is included within the legitimate domain of public purposes[xi].
[i] River Walk Apts., LLC v. Twigg, 396 Md. 527 (Md. 2007).
[iii] Chesapeake & Potomac Tel. Co. v. Morgantown, 143 W. Va. 800 (W. Va. 1958).
[iv] City of Cave Springs v. City of Rogers, 343 Ark. 652 (Ark. 2001).
[v] Davis v. Denver, 140 Colo. 30 (Colo. 1959).
[vi] Pioneer Real Estate Co. v. Portland, 119 Ore. 1 (Or. 1926).
[vii] Department of Treasury v. Evansville, 223 Ind. 435 (Ind. 1945).
[viii] Taylor V. State, 663 N.E.2d 213 (Ind. Ct. App. 1996).
[ix] Meyer v. Cleveland, 35 Ohio App. 20 (Ohio Ct. App., Cuyahoga County 1930).
[xi] Green v. Thomas, 37 Ohio App. 489 (Ohio Ct. App., Franklin County 1930).