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trustees for the founding of a public hospital for the insane. and such trustees are created a corporation, it is a public corporation governed and controlled by the State, and it acts exclusively as agent of the State and exercises governmental functions, even though it may sue and be sued under its charter; such corporation having no stockholders or members, except directors who have no interest in its affairs and are appointed by the governor and senate and are public rather than corporate officers.80 But a hospital may be one which is maintained as a private enterprise.81

§ 87. Insurance Companies.-The business of insurance is not commerce nor is the contract of insurance an instrumentality of commerce, so that a State may exclude a foreign insurance company from its territory or may impose conditions upon which entry shall be made and may enforce those conditions.82 And statutes prohibiting the carrying on of business by them except on compliance with prescribed conditions, such as obtaining a license therefor, etc., do not conflict with the guarantee under the Federal Constitution of privileges and immunities to citizens in the several States as they are not "citizens" within the Constitution.83 Insurance companies are also subject to control and regulation by the State, and its power to enact laws of such a character is inherent and these corporations like natural persons are subject to legislation of this character.84 It is declared in a New York case that: "As the business of insuring lives, property, credits and fidelity of conduct has become of such large public concern, in connection with the business enterprises and activities of the people of the Maia's Adm'r v. Directors of S.) 168, 19 L. ed. 357. See § 67, Eastern State Hospital, 97 Va. 507, herein. 34 S. E. 617, 47 L. R. A. 577.

81 Vink v. Work, 158 Ind. 638, 64 N. E. 83 (exemption from taxation case).

"Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 40 Cent. L. J. 228, per White, J.

See also

84 Joyce on Ins. § 327. Rauen v. Prudential Life Ins. Co. (Iowa), 106 N. W. 198; Opinion of Justices, In re, 97 Me. 590, 55 Atl. 828. Examine Adler-Weinberger S. S. Co. v. Rothschild & Co., 123 Fed. 145; Melancon v. Phoenix Ins. Co.,

* Paul v. Virginia, 8 Wall. (75 U. 116 La. 324.

State generally, such business has essentially become one of a public character; and it has been found necessary by the legislature to guard and protect the people of the State in their dealings with the persons and corporations assuming to act as insurance companies, in the same manner that it has been found essential to deal with the business of banking. The State has now for many years had a governmental department devoted to that purpose, and has placed upon the superintendent or head of that department responsible duties in regard to the supervision of domestic and foreign companies doing business within the State." 85

§ 88. Irrigation Companies-Irrigation Districts.—Under a Federal decision corporations engaged in the business of furnishing water for irrigation under the laws of California are private corporations and have the same rights to contract as have individuals, unless prohibited by statute, and may agree with a consumer as to rates or charges until they are regulated by the law, even though commissioners under the law may fix rates and the use of water for irrigation is a public use under the state constitution.86 But under a California decision such companies are declared to be quasi-public corporations.87 But irrigation districts organized in that State, under the statutes of 1887, are public corporations to the same extent as are reclamation districts, and they are compared as to their creation to municipal corporations.88 In Washington such districts are not municipal corporations when formed under the act of March 20, 1890, so as to come within the meaning of the constitution of that State as to the latter's incurring indebtedness. In Texas irrigation companies organized for the pur

83

85 People v. Loew, 44 N. Y. Supp. 43, 26 Civ. Proc, 132, 19 Misc. 248.

86 San Diego Flume Co. v. Souther, 90 Fed. 164, 170, 32 C. C. A. 548, 61 U. S. App. 134, s. c., 104 Fed. 706; s. c., 112 Fed. 229. Examine San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 445, 47 L. ed. 892, 23 Sup. Ct. 571.

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pose of furnishing water for hire to those desiring its use, although technically private in their nature, are public or quasi-public corporations or carriers of water. As such quasipublic corporations or carriers of water, they cannot, whatever their liability may be to the public, limit it by contract, and such attempted limitation should be deemed unreasonable and held to be void. Corporations of this class must be held to the discharge of their public obligations and cannot avoid or escape the consequences of their failure to perform such duties by limiting their liability by contract. Otherwise, the public, whose servants they are, are at their mercy. Nor can they, in performing their public duty, discriminate in favor of or against any of its members entitled to their service. The obligation rests upon them to discharge their duty to all; they must act faithfully in the performance of such duty, in so far as they can by the exercise of ordinary care and diligence, nor is it any excuse that they treat alike wrongfully all the members of the public entitled to their service, as a multiplicity of wrongs does not justify a single one. If such a company contracts to furnish water to a consumer and negligently or willfully fails to comply with its contract in such respect it becomes liable to the consumer thus injured, for any damage suffered in the loss or injury to his crops by reason of such breach of contract.90 In Arizona a public irrigation company is obligated, in the exercise of its franchise, to render its services to the public at reasonable rates. In Nebraska a corporation formed for the purpose of owning, constructing and operating canals, reservoirs, dams and other works for irrigation and water power purposes, is a quasi-public corporation and governmental agency, but its main purpose is the administration of a public utility. To the extent of its capacity it is obligated to furnish water, to persons desiring to use it,

Kittitas Irrig. Dist. v. Peterson, 4
Wash. 147, 29 Pac. 195; Wash.
Const. art. 8, § 6.

* Colorado Canal Co. v. McFarland & Southwell (Tex. Civ. App., 1906),

91

94 S. W. 400. Sce opinion of Neill, J., at pp. 403, 404.

91 Salt River Valley Canal Co. v. Nellsen (Ariz., 1906), 85 Pac. 117.

on equal terms and without discrimination. It has no right or power to bind itself by a contract which, if enforced, would prevent its serving the public on such terms.92

93

§ 89. Levee Districts-Levee Boards.-Levee districts are declared to be neither private nor public corporations; and are also said to be public corporations.94 And under a Federal decision, a levee district is a corporation and a public corporation with power to sue and be sued even though a statute creating a board of levee inspectors with the powers usually incident to such corporations does not expressly declare it to be a corporation.95 But in Illinois a board of directors appointed by statute to locate and superintend the construction of a levee, with power to contract, sue and be sued under a specified name, is strictly a private corporation. It is also held that a levee district board exercises only public duties and functions and cannot be sued outside of the State.97 Again, it is decided that such a district is a state local tax or assessment district, whose powers may be enlarged by the legislature." But it is also held that power cannot be delegated to a levee district to levy a tax under a state constitutional provision authorizing such legislative delegation of power to counties and incorporated towns." Again, a levee board may be a corporaWabash River v. Houston, 71 Ill. 318, 322.

02 Sammons v. Kearney Power & Irrigation Co. (Neb., 1906), 110 N. W. 308, 312, citing and considering State v. Hartford & New Haven Rd. Co., 29 Conn. 538; Chicago Gaslight Co. v. People's Gaslight Co., 121 Ill. 530, 2 Am. St. Rep. 124, 13 N. E. 169; West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600, 46 Am. Rep. 527.

93 People v. Reclamation Dist. No. 551, 117 Cal. 114, 48 Pac. 1016.

* Dean v. Davis, 51 Cal. 406. 95 Board of Levee Inspectors of Chicot County v. Crittenden, 94 Fed.

613.

97 Board of Directors of St. Francis Levee Dist. v. Bodkin (Tenn.), 69 S. W. 270.

98 Hughes v. Board of Commrs. of Caddo Levee Dist., 108 La. 146, 32 So. 218.

A police jury as a sublevee district cannot under the constitution levy a special tax for levee improvements. Zeigler v. Thompson, 43 La. Ann. 1013, 10 So. 197.

99 Reelfoot Lake Levee Dist. v. Dawson, 97 Tenn. 151, 36 S. W. 1041, 34 L. R. A. 725. Compare Carson v. St. Francis Levee Dist., 59 Ark. 513,

"Board of Directors for Leveeing 27 S. W. 590.

tion vested with large discretionary powers as a fiduciary agent to carry out public purposes, such as power to aid in building levees, or other works of public improvement. It may also possess authority to sue.1 And an act conferring corporate powers on a board of directors of a levee district created by statute does not violate a state constitutional provision against special acts conferring corporate powers, as private corporations only are within such provision. It is held, however, that levee districts are not corporations, but state functionaries within the prohibition of a state constitution as to loaning funds, etc., the State. In Arkansas neither a levee district nor its board. of directors, is a municipality within a constitutional prohibition as to issuance of interest-bearing evidences of debt.4 In Missouri a levee district is a political subdivision of the State. A levee constructed along a river is, however, such a public use that the power of eminent domain may be exercised. The word "levee" is synonymous with the word "landing" when used in connection with levees bordering on navigable streams and sloughs.?

of

§ 90. Log Driving or Boom Corporation.-The character of a corporation, as one created for pecuniary profit or as a boom company to improve a river for log driving, may be affected

1 Louisiana, A. & M. R. Co. v. Tensas Basin Levee Dist. Commr's, 87 Fed. 594, 31 C. C. A. 121, 58 U. S. App. 281.

lands in constructing levee, see De Baker v. Southern Cal. R. Co., 106 Cal. 257, 39 Pac. 610.

Missouri, K. & T. Ry. Co. v. Carson v. St. Francis Levee Dist., Cambern, 66 Kan. 265, 71 Pac. 809, 59 Ark. 513, 27 S. W. 590. aff'g 63 Pac. 605.

'Fisher v. Steele, 39 La. Ann. 447, 1 So. 882.

4

As to exercise of power of eminent domain see Pontchartrain R. Co. v. Orleans Levee Dist. Comm'rs, 49 La. Ann. 570, 21 So. 765; Union Elevator Co. v. Kansas City Suburban B. R. Co. (Mo.), 33 S. W. 929, modified 135

Memphis Trust Co. v. Board of Directors of St. Francis Levee Dist., 69 Ark. 284, 62 S. W. 902 (applied to St. Francis Levee District). 'Morrison v. Morey, 146 Mo. 543, Mo. 353, 36 S. W. 1071; Hansen v. 48 S. W. 629. Hammer, 15 Wash. 315, 46 Pac.

Municipal corporation not liable in exercise of police powers for errors of judgment for damage to others'

332.

'Napa v. Howland, 87 Cal. 84, 25

Pac. 247.

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