Corporation Law, Consolidated Laws, chap. 23, section 3, defines a municipal corporation thus: "A municipal corporation' includes a county, town, school district, village and city and any other territorial division of the State established by law with powers of local government."

Although the authorities are not entirely in accord as to the proper technical classification of public corporations with relation to their functions, they may, for the purpose of the discussion of this question, be divided into municipal or public and quasi public.

There are certain municipal corporations so well defined as to leave no opportunity for question as to their nature. These are the constitutional civil divisions, viz.- counties, towns, cities and villages. It is evident that the institution under discussion could in no manner be held to fall within any of these classes of municipal corporations. There is no hint anywhere in the statutes affecting it that it was intended to be incorporated as a city or village. It is true that like all areas of congested population it has been necessary to provide a system of sanitary control which resembles those of cities and villages. This is also true of its lighting and heating facilities and other allied local community interests; but assuming that it had by direct grant all the powers and rights of a legal municipality, still it would be an unconstitutional body.

People ex rel. Yost v. Becker, 203 N. Y. 201.

The question before the court in that case was the validity of the commitment of the relator by a police justice "of the Area or Territory of Sylvan Beach, N. Y." The court set out in considerable detail the acts fixing the character of said area or territory and after discussing the several statutes state that a legal municipal corporation was created unless the Legislature was restrained by the constitution from instituting it. At page 208 of the opinion, Judge Collin, writing, says:

"We hold that the adoption by the constitution of counties, towns, cities and villages as the civil divisions exercising general powers of local government and the local auxiliaries of the state government is equivalent to a direct prohibition against the creation of other civil divisions vested with similar powers.

And again at page 209,

"It is an element essential in the incorporation of a county, town, city or village that it be incorporated by expressed classification a county, or a town, or a city, or a village. The legislature must, in order that our political system have orderly and intended operation, give to a body corporate having general powers of local government a classification or de nomination and thereby fix its proper place in the governmental machinery. The body at the bar it denominated area or territory,' and in case we amended it to a village or city, or deemed it thus amended, we would perform a legislative and not a judicial act."

The court held the acts, purporting to incorporate the area, unconstitutional and void.

For the reasons stated there it is clear that Chautauqua Institution is not a legal municipal corporation coming within the constitutional civil divisions. There has been no attempt to constitute it as such, and if there had, such attempt must have failed since there has been no denomination of it as one of the divisions authorized by the constitution.

Let us now recur to the definition of a municipal corporation in the General Corporation Law. It includes, in addition to the civil divisions above referred to, a school district and "any other territorial division of the State established by law with powers of local government." Undoubtedly a school district, even if not included in the definition is a quasi corporation of very limited powers. (Harris v. School Dist. No. 10, 28 N. H. 62; Union Free School Dist. v. Village of Glen Park, 109 A. D. 414; Barnes v. District of Columbia, 91 U. S. 540.) But no argument occurs to me which would bring the present corporation within such a classification. and I, therefore, disregard it. There is, however, some question as to the comprehensiveness of the term last above quoted as well as in connection with the true meaning of the term " other political subdivision," and "other subdivision" as used in the Compensation Law. In the Becker case counsel for the respondent argued that the area of Sylvan Beach was legally incorporated under the provisions of the General Corporation Law as a territorial division of the State. The court said this argument required no consideration.

There are several cases in the books holding that there are municipal corporations without the strict classification set forth in the Becker case.

Cook v. Port of Portland, 20 Oreg. 580; 13 L. R. A.

533.

People v. Draper, 15 N. Y. 532.

Barnes v. District of Columbia, 91 U. S. 540.

The Becker case did not decide that there could be no other municipal corporations than those therein set forth. It held that the attempt to incorporate a civil division with the powers similar to a city or village failed because of improper denomination. A city or village could be incorporated in only one way and that method had not been followed. It was therefore unnecessary to consider the other arguments.

There is a great amount of illuminating discussion in the opinion in the case of Dartmouth College v. Woodward, 4 Wheaton, 518, on the essential attributes of corporations, similar to the one here under discussion.

Mr. Justice Storey, (p. 668), points out very clearly that the nature of the work of the institution has no relation to the question of whether a corporation is a public one or not. At page 671

he says:

“The fact, then, that the charity is public, affords no proof that the corporation is also public; and, consequently, the argument, so far as it is built on this foundation, falls to the ground. If, indeed, the argument were correct, it would follow, that almost every hospital and college would be a public corporation; a doctrine utterly irreconcilable with the whole current of decisions since the time of Lord Coke. * * * When the corporation is said at the bar to be public, it is not merely meant, that the whole community may be the proper objects of the bounty, but that the government have the sole right, as trustees of the public interests, to regulate, control, and direct the corporation, and its funds and its franchises, at its own good will and pleasure. Now, such an authority does not exist in the government, except where the corporation is in the strictest sense public; that is, where its whole interests and franchises are the exclusive property and domain of the government itself."

To the same effect see Regents v. Williams, 9 Gill and Johnson 365; 31 Am Dec. 72. So here, the fact that Chautauqua Institution is engaged in a work public in its nature, casts no light upon the question at hand and has no bearing upon the inquiry

as to whether such institution is a municipal corporation or not. The following extract from Mr. Justice Bradley's opinion in the case of Mayor, etc., v. Ray, 19 Wall. 468, is quoted with approval in Wells v. Town of Salina, 119 N. Y. 280, at page 295:

"A municipal corporation is a subordinate branch of the domestic government of a state. It is instituted for public purposes only, and has none of the peculiar qualities and characteristics of a trading corporation instituted for purposes of private gain, except that of acting in a corporate capacity. Its objects, its responsibilities and its powers are different. As a local governmental institution it exists for the benefit of the people within its corporate limits. The legislature invests it with such powers as it deems adequate to the ends to be accomplished."

In MacMullen v. City of Middletown, 187 N. Y. 37, at page 41, it is said:

"A municipal corporation is a political or governmental agency of the state which has been constituted for the local government of the territorial division described and which exercises, by declaration, a portion of the sovereign power for the public good."

And again, at page 43:

"These principles are familar from their frequent statement in the books and their brief summary here is to emphasize the idea that a municipal corporation is but a part of the machinery of government; that it is the creation of the legislature, which endows it with certain local governmental functions and imposes upon it the performance of certain duties, and that its every feature is subject to the regulation of the legislature in granting the charter and to the right of that body to change, or to modify, as the public interest may demand."

In an Illinois case, the People v. Trustees of Schools, 78 Ill. 136, it was held that school townships as constituted by the General School Law were not municipal corporations in nature or purpose. Article IX, section 5, of the Illinois Constitution provided:

"The corporate authorities of counties, townships, school districts, cities, towns and villages, may be invested with power to assess and collect taxes for corporate purposes.'

The question before the court was whether this section authorized school townships to incur a debt, and having contracted the same, levy and collect taxes to pay it. Mr. Justice Walker held that they were not created to exercise any of the functions of government and hence were not municipal corporations nor were they provided with the officers or power to exercise governmental functions. He contrasts them with cities and towns and states that the latter were created and maintained to aid in the government of the people. He says, page 139: The constitution makers when they used the language, "for corporate purposes", supposed that if any question arose in the construction of the clause, the department of state, applying its principles, would determine the real object of the creation of the body and limit it to that purpose. "They did not, on the one hand, expect that there would be an effort to push the construction to the extent that it would embrace all purposes which might by possibility be brought in the corporate power."

At page 141 he says:

"If, because a muncipal corporation, created for governmental purposes, may be invested with such powers, it does not follow that some other body, having some of the attributes of a municipal corporation, may be."

I think it is clear that the state may delegate certain municipal powers to its citizens without constituting them, by such delegation, municipal corporations. There seems to be no plausible reason that could be advanced in support of the theory that the charter of incorporation of the institution, as originally granted, created a municipality. If it is now a municipal corporation, for any purpose, it is because of the various statutes passed dealing with the activities incidental to its broadening growth and expansion. Generally speaking, its members and guests are liable to the town and county laws just as in any other section. It has no statutory territorial limitations or boundaries. It maintains no courts, elects no administrative officers by vote of the people and has no jurisdiction to punish criminals. The basis of representation for governing the institution is determined not by the citizenship of the voter, but upon the question of whether he is a member or not, and that, in turn, is governed by an arbitrary rule of selection based upon ownership of land or the accident of being one of the persons named in the original or supplemental certificate of incorporation or election to membership by the trus