
    Mayor and Aldermen of Memphis vs. Wright.
    Under a charter of incorporation, which authorizes the mayor and aldermen of a town “to do all things necessary to be done by corporations,” they have the right to dispose of the public property of the corporation as they may think proper for the prosperity of the town, and apply it to a different use from that originally contemplated when the town Was laid off.
    When, in the original plan of a town, a public promenade is laid off on the hank of a river, the mayor and aldermen of the town, under a charter authorizing them “to do all things necessary to he done hy corporations,” may convertthe promenade into wharves and landings for steamboats and flatboats. .
    When a town is laid off on the hanks of a river, which is a public highway, and to the use of the banks of which all the citizens of the State have a right, the mayor and aldermen of the town, under a charter authorizing them “to do all things necessary to be done by corporations,” are invested with the same right of eminent domain as the State, and may regulate the manner and mode of using the banks, by laying it off into wharves and landings, and directing and regulating the landing of different water craft.
    The town of Memphis, in this State, is situated on the bank of the Mississippi river, which is a public highway. On the hank of the river a public promenade was laid off in the original plan of the town. An act of incorporation of Memphis was passed, containing a clause authorizing the mayor and aldermen of the town “to do all things necessary to be done by corporations.” The corporation converted the public promenade into a steamboat wharf and a flatbóat wharf, and passed an ordinance prohibiting “flatboats and other water craft, (other than steamboats)' to lia in the steamboat landing, under a penalty of one dollar per hour after t[,e expiration of half an hour from the time the owner should be notified by the town constable to remove his craft or boat: Held, that the pay£ng 0fp the public promenade in the original plan of the town, was a dedication of the ground to the public use of the corporation, and that the mayor and aldermen were the representatives of the corporators, and could convert it into wharves and regulate the manner of using the wharves, and that they could enforce their regulations by penalties for the violation, as in the above ordinance, under the charter of incorporation.
    The corporation of Memphis laid off part of the promenade in front of the town, on the Mississippi river, for a steamboat landing; and other parts for a landing for flat boats and other craft. The charter of incorporation says, they shall have power “to do all things necessary to be done by corporations.” The mayor and aldermen enacted an ordinance preventing flatboats and other water craft, (other than steamboats,) to lie in the steamboat landing, under a penalty of one dollar per hour after the expiration of half an hour from the time the owner should be notified by the town constable to remove his boat or craft. The defendant, in defiance of this ordinance, lay to at the steamboat landing with his flatboat, for fifty hours after he was notified to remove. A suit was brought before a justice of the peace to. recover the penally, when a judgment for the fifty dollars was obtained, and an appeal was taken to the circuit, court. Upon the trial in the circuit court, the judge charged the jury among other things, “that if it were not proved to them that this landing was a public one, laid off, marked out, and designated as such by the proprietor, on the town plan, but that this landing was made on the ground laid off as a public promenade, that they should find for the defendant.” The jury found a verdict for the defendant, and a motion for a new trial on the part of the plaintiffs having been made and overruled, they prosecuted an appeal in the nature of a writ of error to this court.
    
      J. D. Martin, for the plaintiffs in error.
    Plaintiffs rely upon the law of incorporation, act of 1826, ch. 115, and the general law in relation to the powers of corporations. ->
    
      R. M’Jllpin, for defendant in érror.
    In this charge and verdict there is no error.
    1st. Because the corporation.of Memphis had no right or power to change or divest the public dedications as designated on the map, without the aid of a court of ■chancery, from their indicated purposes.
    2d. If it had the right so to do at the time it was so done, it had not at the time the act complained of was committed; as all exercise of privilege had been previously conveyed to a company.
    3d. The boat being in the water, was not within the limits of the corporation; the corporation had no right therefore to prescribe the penalty.
    4th. The suit ought to have been debt and not case, as the subject matter is a penalty.
    5th. The summons issued by one justice, requiring the defendant to appear and'answer before two, isbad, because it was not a suit for damages; and the suit ought to be dismissed.
    6. No legislature can give power to a corporation to collect a tax or penalty off of boats on the Mississippi river.
   Green, J.

delivered the opinion of the court.

The part of the charge complained of, assumes, that a corporation cannot apply the public property of a towa to any new use, other than that for which it was designated when the town was originally laid off. In this we are of opinion that the court erred. The public property belongs to the corporators, and may be appropriated by them to any use they may think proper: The mayor and aldermen are the representatives of these corporators, and have vested in them all the right to dispose of, or apply to any use they may think proper, the public promenade, public squares, &c. which existed in the original proprietors. If this were not so, a thriving town would be exceedingly crippled in the exercise of its corporate rights. Few persons would have sufficient foresight ire laying off a town, to anticipate and provide every thing, that was calculated to promote its prosperity aiffi good government. It must therefore be among the powers of a corporate town, having by its charter a right “to do .all things necessary to be done by corporations,” to lay off new streets, squares, lanes, and alleys, and to construct wharves and other conveniences for the trade and comfort of the citizens, and by ordinances to regulate the manner in which they shall be used. These powers are “necessary to be done” that the prosperity of the town may be promoted, and that its peace and order may be preserved.

In argument another point has been insisted on, which is this: Because the Mississippi river is a public highway, to the navigation of which all have a right, together with the privilege of using the banks on which to land, that therefore the corporation of Memphis has no right to appropriate any portion of the banks for an exclusive purpose.

It is a well settled principle, that the State in which resides the eminent domain to the whole territory, has the right to appropriate even the property of a private citizen to public use; compensating the citizen therefor. Upon this principle is land condemned for mills, roads, and ferries. The right of each navigator of the river to the use of the bank, cannot be of a higher nature than the right of a citizen to the land which the State has granted to him. As therefore the latter can be deprived of his land for public use, so may the former be deprived of the use of particular portions of the bank, if the public good demand it. Hence ferries are established on the Mississippi river, pnd portions of the banks are designated as the landing places. It will not be contended that a set of boatmen would have a right to crowd their flatboats at the ferry landing so as to exclude the ferry boat. And why? Because the establishment of the ferry has appropriated to this exclusive use the banks at the places of landing.

By the act of incorporation, all the power to condemn for a particular public use, any portion of the bank of the Mississippi included in the corporation, which existed in the legislature of the State, is transferred to the corporation of Memphis, for the latter clause of the second section of the charter of incorporation says, it shall have power “to do all things necessary to be done by corporations.” For the encouragement of trade, the construction of convenient plaees of landing was “necessary to he done,” and for the preservation of peace and good order, the designation of particular landings for different kinds of water craft was “necessary.” But this designation would have been useless had it not been enforced by a penalty; therefore, the corporation had authority to enact- the ordinance in question.

The judgment must be reversed, and the cause be remanded to the circuit court of Shelby for another trial.

Judgment reversed.  