THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ) ^ -/\^^//^ /v. r- (0-t^^ ■/ Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. A succinct statement of leading principles In black- letter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published in regular octavo form, and sold at the uniform price of $3.75 per volume, including delivery. Bound in American Law Buckram. 1. Norton on Bills and Notes. (3d Ed.) 2. Clark on Criminal Law. (2d Ed.) 3. Shipman on Common-Law Pleadins. (2d Ed.) 4. Clark on Contracts. (2d Ed.) 5. niack on Constitutional Law. (3d Ed.) 6. Fetter on I'Aiuity. 7. Clarlv on Ciiminal Procedure. S. Tiffany on Sales. (2d Ed.) 9. Glenn on International Law. 10. Jaggard on Torts. (2 vols.) 11. Black on Interpretation of Laws. (2d Ed.) 12. Hale on Bailments and Carriers. 13. Smith on Elementary Law. 14. Hale on Damages. (2d Ed.) 15. Hopkins on Real Property. 16. Hale on Torts. 17. Tiffany on Persons and Domestic Relations. (2d Ed.) 18. Croswell on Executors and Administrators. 19. Clark on Corporations. (2d Ed.) 20. George on Partnership. 21. Shipman on Equity Pleading. 22. McKelvey on Evidence. (2d Ed.) 23. Barrows on Negligence. 24. Hughes on Admiralty. 25. Eaton on Equity. 26. Tiffany on Principal and Agent. 27. Gardner on Wills. 28. Vance on Insm-ance. 29. Inger.soll on I'ublic Corporations. 30. Hughes on Federal Jurisdiction and Procedure. (2d Ed.) 31. Childs on Surety and Guaranty. 32. Costigan on American Mining Law. 33. Wilson on International Law. 34. Gilmore on Partnership. 33. Black on Judicial Precedents. 30. Tiffany on Banks and Banking. 37. Cooley on Municipal Corporations. In preparation: Handbooks of the law on other subjects to be an- nounced later. Published and for sale by "WEST PUBLISHING CO.. ST. PAUL, MINN. ( '.•)S.-,^k HANDBOOK OF THE LAW OF PUBLIC CORPORATIONS By HENRY H. INGERSOLL, LL.D. on AN OP THE UNIVERSITY OF TENNESSEE SCHOOL OF LAW St, Paul, Minn. WEST PUBLISHING CO. 1S04 G67470 190 4 Copyright, 1904, BY WEST PUBLISHING CO. I TO THE HONORABLE JOHN F. DILLON, Author of Commentaries on the Law of Municipal Corporations, as a token of the author's admiration for the profound learning, judicial spirit, imwearied industry, and civic patriotism manifest therein, THIS VOLUME IS RESPECTFULLY DEDICATED. (V)* PREFACE. This handbook is the result of the author's labors to suc- cinctly state and plainly illustrate the doctrines and rules of the Law of Public Corporations, as declared in the decisions, concurring, variant, and conflicting, of the State and Federal Courts of America. The author gratefully acknowledges his obligations to Judge Dillon for his pioneer labors on the sub- ject of Public Corporations, and also to the work of Prof. Tiedeman, Judge Elliott, and Messrs. Beach and Smith in the same field. In the first hundred pages are treated Quasi Corporations. Municipal Corporations occupy the next four hundred pages. The residue of the volume is devoted to Quasi Public Cor- porations. Though designed specially for the use of students, the au- thor's experience on the bench and at the bar persuades him that the work will be welcome to practitioners for its concise statement of principles as well as its full citation of important cases, many of them recent and some decided during the current year. For discriminating aid in this part of the work, the author acknowledges obligation to Leonard J. Collins, Esq., of the Knoxville bar. Henry H. Ingersoll. Knoxville. Tenn., October, 1904. TABLE OF CONTENTS. Part I. QUASI CORPORATIONS. CHAPTER I. NATURE, CREATION, CLASSIFICATION. Section Page 1. Corporations in General 1-3 2. Various Kinds 4-7 3. Nature of Corporations 7-10 4. Public Corporations — Definition 11-12 5. Classification 12-14 6. Legislative Sanction — Origin 14:-18 CHAPTER n. QUASI CORPORATIONS— LIABILITIES, ELEMENTS, COUN- TIES, PROPERTY, ETC. 7. Quasi Corporations 19-22 8. Immunities 23-2<) 9. Distinguishing Elements 27-31 10. Counties 31-34 11. Creation of Counties — Legislative Power 34-3H 12-13. Property — Public Use — Sovereign Power 3(5-37 14. Government and Officers 38-31) 15. Powers of County Government 39-40 16. Powers of County Government (Continued) 41-47 17. Torts 48 18. Power of Eminent Domain 48-50 19. Police Power 50-52 ING.COBP. (ix) TABLE OF CONTENTS. CHAPTER in. QUASI CORPORATIONS (Contlnxied). Section Page 20. County Liabilities 53-56 21. Contracts— Subject-Matter 57-63 22. Forms of Contracts 63-65 23. Borrowing Money 66-68 24. County Bonds 69-78 25. Fiscal Management 79-84 26. Taxation 85-90 27. Legislative Control 90^92 CHAPTER IV. QUASI CORPORATIONS (Continued). 28. Quasi Corporations Other than Counties 93-94 29. New England Towns 95-98 30. Townships 98-100 31. School Districts 100-105 32. Other Local Quasi Corporations 10(j-107 33. Boards — Commissioners — Companies 107-109 Part II. MUNICIPAL CORPORATIONS. CHAPTER V. MUNICIPAL CORPORATIONS. 84. Municipal Corporations — Distinguishing Elements — Prescription 110-1 18 35. The State 118-119 36. The Territories 120-121 37. History 122-125 TABLE OF CONTENTS. X* CHAPTER VI. MUNICIPAL CORPORATIONS (Continued). CREATION— HOW- RY WHAT RODIES— SUBJECT TO WHAT RESTRICTIONS, ETC. Section ^^'"^ 38. Creation of Municipal Corporations 126-129 39. What Bodies may Grant Charters 129-132 40. Legislative Discretion 13.3-136 41. Legislative Power — How Exercised 137-142 42. Compliance with Conditions 142-145 43. Corporations by Implication 145-147 44. Charter not a Contract 147-149 45. Validity— How Tested 149-150 CHAPTER Vn. MUNICIPAL CORPORATIONS— ALTERATION AND DISSOLU- TION. 46. Alteration and Dissolution l-''^ 47. Territorial Increase 151-15' . 48. Division of Municipal Territory 157-15S 49. Consolidation 158-160 50. Legislative Power— Inherent and Plenary 160-163 61. Repeal of Charter and Dissolution 163-168 CHAPTER Vni. THE CHARTER. 52. Municipal Corporations under General and Special Law 169-176 53. Charter Powers Classified 176-179 54. What Constitutes Municipal Membership 179-180 55. Territorial Limit of Municipal Authority 180-181 56. Acceptance of Charter by Citizens Unnecessary 181-184 67. Judicial Notice of Special Charter 184-186 58. Certificate of Organization under General Law to be Pleaded 186 69. Municipalities under General Legislation 186-188 Zii TABLE OF CONTENTS. Section Page 60. Municipal Powers: Expressed— Implied— Inherent. 188-189 61. No Particular Form of Cliarter Required 189-190 62. Legislative Power to Repeal Charter 190-193 CHAPTER IX. LEGISLATIVE CONTROL. 63. Governmental Functions, Public Affairs and Prop- erty 194-199 64. Municipal Ofl5cers Charged with Performance of Governmental Functions 199-201 65. Public Funds and Revenues 201-207 €6. Franchises 207-209 67. Contracts and Obligations 209-211 68. Obligations Imposed by Legislature 211-213 69. Property 213-215 70. Public Thoroughfares 215-217 CHAPTER X. PROCEEDINGS AND ORDINANCES. 71. Meetings 218-227 72. Corporate Records 227-230 73. Ordinances 230-231 74. Mode of Enactment 231-234 75. Essentials of Valid Ordinance 234-247 76. Fines and Penalties 248-249 77. Procedure 249-25;j CHAPTER XI. OFFICERS, AGENTS, AND EMPLOTfiS 78. Officers 254-257 79. Officers, Governmental and Municipal 257-259 80. Eligibility 2(j0-26l* 81. Appointment and Election 202-264 82. Fiduciary Relations 264-265 83. Officers De Facto 266-267 84. Salary 267-271 TABLE OF CONTENTS. Xlll Bection ^^^® 85. Title to Office I tz 86. Resignation 2t2--io 87. Judicial Control 275-277 88. Removal 277-279 89. Personal Liability— Contracts 280-281 90. Torts 281-284 91. Reimbursement of Municipality for Loss 28o 92. Agents 1 93. Employes 287-288 CHAPTER XII. CONTRACTS. 94. Municipal Contracts 289-290 95. Ultra Vires 291-293 96. Estoppel 294-296 97. Contracts Partially Ultra Vires 296-297 98. Implied Promise 297-300 99. Subject-Matter 300-301 100. Contracting Agencies 301-303 101. Mode of Contracting 304-30." 102. Letting of Contracts 305-308 103. Illegal Contracts 309-311 104. Annulling Contracts 312-313 105. Impairing Obligations 313-314 106. Money Contracts 314-316 CHAPTER XIII. IMPROVEMENTS. 107-108. Municipal Improvements — General— Local 317-318 109. Power to Make or Aid 318-320 110. Preliminary Proceedings 321-32.T 111. Contracts 320-330 112. Damages 330-334 113. Special Apsossments 33.J-340 114. Enforcing Collection 340-342 XiV TABLE OF CONTENTS. CHAPTER XIV. POLICE POWERS AND REGULATIONS. Section Page 115. Essential to a Municipality 343-344 116. Delegation 345-346 117. Limitation of Power 34G-34S 118. Exercise of Power 349-350 119. Double Police Power 3.50-351 120. Peace and Order 3.")2-353 12L Sanitation 353-356 122. Safety 3.57-362 123. Comfort 362-364 124. Occupations and Auiuseuients on.5-369 125. Markets 370-371 126. Violation and Enforcement 371-373 CHAPTER XV. STREETS, SEWERS, PARKS, AND PUBLIC BUILDINGS. 127. Streets 374-375 128. Legislative Control 375-377 129. Delegation 377-379 130. Dedication and Accoptance 379-382 131. Use of Streets 382-388 132. Abutting Owners 3S9-393 133. Sowers 393-396 134. Parks 396-400 135. Public Buildings 400-403 CHAPTER XVI. TORTS. 136. Civil Liability 404-405 137. Governmental Duty- — No Action for Failure in 406-412 1.38. Municipal Duty— Liability for Failure in 412-415 139. Municipal Performance of Governmental Duty 415-418 140. Reasonable Care of Streets 418-422 141. Obstructions 422-425 142. Sidewalks 425-428 TABLE OF CONTENTS XV flection Pag'^ 143. Bridses and Viaducts 429^31 144. Drains and Sewois 4ol-434 145. Respondeat Superior 4o.>-437 146. Ultra Vires 437-440 CHAPTER XVn. DEBTS, FUNDS, EXPENSES, AND ADMINISTRATION. 147. Indelitedness 441-442 148. Limitation of Indebtedness 442--44.'5 149. Municipal Bonds 445-44(5 150. Borrowing INIoney 440^48 151. Express and Implied Power to Issue 44S-449 152. Municipal Warrants 450-451 153. Funds 451^52 154. Rights of Creditors 452-454 155. Expenses 454-^55 156. Budget 455-45G 157. Claims 457-458 16& Appropriation 459 CHAPTER XVin. TAXATION. 189. Taxation, Source of Power 460-462 160. Legislative Control 462-463 161. Public Purpose Only 46.3-465 162. Judicial Question 465-467 163. What are Public Purposes 468-460 164. Apportionment of Taxes 470-474 165. Subjects of Taxation 474-470 166. State May Impose 479-481 167. Limitation of Express Power 481-482 168. Implied Power 482-484 169. License Tax 484-485 170. Power Exercised — How and by Whom 485-4S«') 171. Assessment and Collection 487-480 172. Taxation for Creditors 490-491 XVl TABLE OF CONTENTS. CHAPTER XIX. ACTIONS. Section Pag* 173. A Municipality may Sue and be Sued 492-493 174. Plaintiff in Actions Ex Contractu 493-494 175. Defendant in Actions Ex Contractu 494-496 176. Plaintiff in Actions Ex Delicto 497 177. Defendant in Actions Ex Delicto 498-500 178. Mandamus 500-505 179. Quo Warranto 506-508 180. Certiorari 508-509 181. Complainant in Ciiancery 510-511 182. Defendant in Chancery 512-515 183. Injunctions 515-517 184. Criminal Prosecution 518-520 Pare III. QUASI PUBLIC CORPORATIONS. CHAPTER XX. QUASI PUBLIC CORPORATIONS. 185. Nature and Extent 521-525 186. Are Essentially Private Corporations 52G-527 187. Subject to Public Regulation and Control 527-529 188. Legislative Control 530-532 189. Objects and Limits of Regulation 533-638 CHAPTER XXI. KAILKOADS. 190. Public Qualities 539-542 191. Common C'arrler 542-545 192. Eminent Domain 545-547 193. Delegated Power 547-552 TABLE OF CONTENTS. XVU Section Page 104. Abuse of Power 55.3-55*; 195. Public Control 557-564 106. Municipal Regulation 565-566 197. Street Railways 566-570 198. Judicial Power 570-573 CHAPTER XXn. ELECTRIC COMPANIES. 199. Telegraphs and Telephones 574-578 200. Federal Control 57S-.58fi 201. State Control 5-80-582 202. Limitations 582-583 203. Eminent Domain 58-3-586 204. Municipal Control 586-588 205. Construction and Op<=ration 58'!^59f) 206. Electric Light Companies 591-592 CHAPTER XXni. WATER AND GAS COMPANIES. Quasi Public Character 593-.59.-. Franchise Obtained. Where 59.".-.597 Subject to Municipal Police Regulations 597-090 Rearulation of Pric-es by Municipality — Limitations.. 600-601 Reasonable Regulation of Rates — Basis of 601-00.3 .Judicial Investiiration f;o.3-604 Reasonable Regulations Prescribed by Companies. ..605-6*37 207 208 209 210 211 212 213 214. Municipal Ownership and Operation — Liability.... 608 CHAPTER XXIV. OTHER QUASI PUBLIC CORPORATIONS. 215. What Private Corporations are Quasi Public 609-610 216. What Qualities Make Them Quasi Public Corpora- tions 610-615 217. Classes 615-021 IKG.COEP. — b t HANDBOOK OF THE LAW OF PUBLIC CORPORATIONS. Part I. QUASI CORPORATIONS. CHAPTER I. NATURE, CREATION, CLASSIFICATION. L Corporations in GeneraL 2. Various Kinds. 8. Nature of Corporations. 4. Public Corporations — Definition. 6. Classification. 6. Legislative Sanction — Origin. CORPORATIONS IN GENERAIi. I* Tlie nainre of a corporation is set forth in the follox^ins standard definitions from acknox^ledged authorities: (a) "A corporation is an artificial being, invisible, intangi- ble, and existing only in contemplation of la.vr." ^ (b) "It is a legal institution devised to confer npon the indi- viduals of vvhich it is composed poppers, privileges, and immunities \rhich they ^Krould not other^vise possess, the most important of w^hich are continuous legal identity or unity, and perpetual or indefinite succes- sion under the corporate name, notxrithstandiTig suc- 1 Chief Justice Marshall in the celebrated DARTMOUTH COL- LEGE CASE, 4 Wheat. (U. S.) 518-675, 4 L. Ed. G29, wherein the nature of corporations was elaborately considered, and it was estab- lished that the charter of a private corporation was an inviolable contract, under the Constitution of the United States, art. 1, § 10. Ing.Corp. — 1 2 NATURE, CREATION, CLASSIFICATION. (Ch. 1 eesslve changes, by death or otherwise, in the corpo- rators or members." 2 (o) "It is a collection of many individuals nnited into one body under a special denomination, having perpetual succession under an artificial form, and invested by the policy of the law with the capacity of acting in several respects as an individual — particularly of tak- ing and granting property, of contracting obligations, and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or of the powers con- ferred upon it either at the time of its creation, or at any subsequent period of its existence." * The three foregoing statements of the nature and qualities of a corporation are the ones most familiar to the modern stu- dent of corporations. The first is by the great Chief Justice, and gives terse expression to the fundamental ideas of a cor- poration. It is not a natural, but an artificial, being or person ; it cannot be seen, nor touched, nor recognized by any other human sense; it is a creature of the law, existing only by its authority,* and recognized and respected by it alone. The second definition is by the recognized master of the law of municipal corporations in America.* It is fuller, more com- prehensive, and more satisfactory to the lawyer. It calls at- « Judge Dillon, In volume 1, § 18, Commentaries on Law of Munic- ipal Corporations (4th Ed.)— the standard textbook on that subject. « 1 Kyd, Corp. 13— a work which has held high repute for a cen- tury In both England and America. * Agreement of members cannot alone make a corporation; the express consent of the state is necessary. Clark, Priv. Corp. §§ 4, 12-18; 1 Thomp. Priv. Corp. § 35; Hoadley v. Commissioners, 105 Mass. 526; Stowe v. Flagg, 72 111. 397; Franklin Bridge Co. v. Wood 14 Ga. 80. B Judge Dillon's Commentaries on the Law of Municipal Corpora- tions, published originally in 1872— the first American work on this subject— came instantly into professional and judicial favor, and has so constantly and universally maintained it as to be justly entitled to be called "authority." § 1 CORPORATIONS IN GENERAL. 3 tention not only to the characteristics emphasized by Chief Justice Marshall in his vivid and sententious definition, but also to other characteristics, viz. : It is composed of individuals ; ' it has powers, privileges, and immunities not common to nat- ural persons ; '' the members may die, but the corporation con- tinues as a perpetual unity unaffected by their death.* Still fuller and yet more satisfactory than either of the Ameri- can definitions is that of the great English author, Kyd, the earliest writer in our language upon this topic. Judges, pro- fessors, and practitioners have generally united in commending this as a most accurate, practical, and complete definition, and remarkable as found in the first treatise on the subject. In ad- dition to the ideas of this artificial person found in the other definitions, Mr. Kyd has herein specified the chief powers of a corporation,® such as the taking and holding and transferring of property, the contracting of obligations and transaction of business, the suing and being sued like a natural person ; the idea of certain powers, privileges, and immunities adapted to its object; and the specific purpose of its creation. « 1 Thomp. Priv. Corp. § 7; Clark, Priv. Corp. § 1, Append, p. 644; 1 Coke, Inst. 202, 250; 2 Kent, Comm. 267, 268; People v. Water- town, 1 Hill (N. Y.) 620; Hightower v. Thornton, 8 Ga. 492, 52 Am. Dec. 412. The corporation sole, a favorite of English courts for the protection of the crown and of ecclesiastics, has been recognized in several of the United States. Day v. Stetson, 8 Me. 365; GOV- ERNOR V. ALLEN, 8 Humph. (Tenn.) 176; Inhabitants of First Parish in Brunswick v. Dunning, 7 Mass. 447; Roman Catholic Arch- bishop V. Shipman, 79 Cal. 288, 21 Pac. 830; Jansen r. Ostrander, 1 Cow. (N. Y.) 670; McCloskey v. Doherty, 97 Ky. 300, 30 S. W. 649. But corporations sole are rare in America, and not increasing in number or favor. 7 Lord Coke, reporting the opinion of Manwood, C. B., says: "They are invisible, immortal, having no conscience or soul." And in our day the responsible members are not liable personally. 8 1 Thomp. Priv. Corp. § 10; Clark, Priv. Corp. § 15; State v. Stormont, 24 Kan. 680; Fuller v. Academic School, 6 Conn. 643; Fairchild v. Association, 71 Mo. 526. » These are sometimes distinguished as essential attributes and non-essential incidents. Clark, Priv. Corp. §§ 6, 7. JJATUBE, CREATION, CLASSIFICATION. (Ch. 1 VARIOUS KINDS. 2. Primarily all corporations are divided into two great classes, pnblio and private; public being those created for the public use, and private being created for pri- vate objects. Another class, knoxra as quasi public corporations, com- bines the elements of both public and private. Though organized for private profit, they are com- pelled by law or contract to render public service. Blackstone divided corporations *" into aggregate and sole, according to the number composing the body; into ecclesi- astical and lay, according to the character of the persons com- posing them ; and into civil and eleemosynary, according to the uses they were intended to subserve; and this classification is still generally recognized and utilized in England, But it is not profitable for us to discuss whether the division is now ex- actly correct in theory, for certainly it is of little present prac- tical use in America. Public and Private Corporations Distinguished. The distinction between public and private corporations is not only of theoretical interest, but of great practical importance. Upon this pivot is often made to turn the liability of the cor- poration for the torts and contracts of its agents, and the pow- ers and privileges of the body. Nor is the subject free from difficulty, either upon reason or authority. It is easy to under- stand that counties, cities, and towns, and other public bodies upon which the legislature has conferred definite powers, to be exercised for public purposes only, are public corporations ; but whether banks, colleges, schools, and hospitals, designed and operated for the public welfare, are public or private, is matter of disagreement in our American courts ; and there are decisions which declare a municipal corporation to have a private char- 10 1 Bl. Comm. 469-471. § 2) YABIOUS KINDS. 6 acter,^* and others holding railway companies and grain ele- vators to be public corporations quoad hoc.^' It is declared by the Supreme Court of Georgia that "a bank organized by the government for public purposes is a public corporation if the vi^hole of the stock and all interest in it reside in the government." ^* But the three neighboring states of North Carolina, South Carolina, and Alabama, by their Su- preme Courts, declared the contrary doctrine ; ^* and to this view the United States Supreme Court inclines in at least two cases. ^"^ In the matter of schools and colleges the law was de- clared by that tribunal in the celebrated Dartmouth College Case, in 1819, to be that a corporation is not necessarily public because it has been established for the purpose of general educa- tion or charity. If the foundation be private, though under government charter, the corporation is private, however exten- sive the uses may be to which it is devoted, either by the bounty of the founder, or the nature and objects of the institution ; and so, if the making of profit is the purpose of a corporation, it is 11 BAILEY V. NEW YORK, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Macauley v. New York, 67 N. Y. 602; City of Memphis v. Kimbrough. 12 Heisk. (Tenn.) 133; OLIVER v. WORCESTER, 102 Mass. 489, 3 Am. Rep. 485; Lloyd v. New York, 5 N. Y, 369, 55 Am. Dec. 347; PEOPLE V. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. 12 MUNN V. ILLINOIS, 94 U. S. 113-126, 24 L. Ed. 77; CHICAGO. B. & Q. R. CO. V. IOWA, 94 U. S. 155, 24 L. Ed. 94 ; Peik v. Railroad Co., 94 U. S. 164, 24 L. Ed. 97. These are commonly known as the "Granger Cases," in which was maintained and enlarged the old legal doctrine enunciated by Lord Hale, that, "when private prop- erty is affected with a public interest, it ceases to be juris privati only." 1 Harg. Law Tracts, 78. It has also been applied to water companies. Spring Valley Waterworks v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173; and to gas companies, State v. Gas Co., 37 Ohio St. 45. 18 Cleaveland v. Stewart, 3 Ga. 283. 14 State Bank v. Clark, 8 N. C. 36; Bank of State v. Gibbs, 3 McCord (S. C.) 377; Bank of State v. Gibson's Adm'rs, 6 Ala. 814, 816. 15 Bank of U. S. v. Bank, 9 Wheat. (U. S.) 907, 6 L. Ed. 244; Bank of Kentucky v. Wister, 2 Pet. (U. S.) 318, 7 L. Ed. 437. 6 NATURE, CREATION, CLASSIFICATIOM. (Ch. 1 a private corporation, though it may be engaged in the service of the public.^* In the Planters' Bank case, above cited, the State of Georgia was both the proprietor and a corporator of the bank, but not the exclusive owner. In the Kentucky Bank Case, the state was not a corporator, but was the exclusive own- er of the stock of the bank. In both cases the bank was held by the Supreme Court of the United States to be a private cor- poration. The conflict in these decisions on the subject of banks doubtless results from the application to stock corpora- tions of the remarks of the Justices of the Supreme Court of the United States, in the Dartmouth College Case, upon the quali- ties and attributes of public and private corporations, which were intended to be applied only to nonstock corporations, such as was Dartmouth College, where private profit was not the object of the corporation. The decided preponderance of authority is that, where profit- making is the object of the corporation, it is private; ^'' if it perform public functions, engage in public service, or exercise any sovereign power, it becomes a quasi public corporation.^* 16 TEN EYCK V. CANAL CO., 18 N. J. Law, 200, 37 Am. Dec. 233; MINERS' DITCH CO. v. ZELLERBACH, 37 Cal. 543, 99 Am. Dec. 300; People v. Forrest, 97 N. Y. 97; Commonwealth v. Gas- light Co., 12 Allen (Mass.) 75. 17 Clark, Priv. Corp. 29; 1 Thomp. Priv. Corp. §§ 24, 27. Cor- porations are private If created for private gain, even though sup- posed by the legislature to promote the public interest, 1 Dill. Mun. Corp. § 53. 18 Tinsman v. Railroad Co., 26 N. J. Law, 148, 69 Am. Dec. 565; Directors for Leveeing Wabash River v. Houston, 71 111. 318; TEN EYCK V. CANAL CO., 18 N. J. Law, 200, 37 Am. Dec. 233; Whiting V. Railroad Co., 25 Wis. 167, 3 Am. Rep. 30; Logwood v. Bank, Minor (Ala.) 23. Every stock corporation is a private corporation, though it be quasi public because of its functions, as a railroad or a canal company. So, also, are nonstock corporations erected upon a private foundation, though their functions are public. DARTMOUTH COL- LEGE V. WOODWARD, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. § 3) NATURE OF CORPORATIONS. 7 Quasi Corporations. In America a certain class of corporations are described as quasi corporations, by which is intended to express that the bodies so described are loosely organized, and possess only a part of the usual corporate powers and attributes. Quasi cor- porations represent the lower order of corporate life, and vary in their functions according to the purposes which they are in- tended to serve. Such are counties, townships, school districts, and the like. For a full statement and explanation of the various kinds of private corporations, the reader is referred to Clark on Private Corporations, §§ 10, 11. NATITRE OP CORPORATIONS. 3* A corporation aggregate, 'wlietli.er public or private, con- sists of (a) A collection of natural persons. Cb) A legal body including those persons, and yet separate and distinct from them, endowed by law w^ith certain rights, powers, and franchises. To avoid the confusion often arising in the minds of persons inexperienced in the practical operation of a corporation, it is of first importance that the legal body, existing only in con- templation of law, shall be kept separate and distinct from the persons of the members composing it.^" The corporation can- not exist without members. Human beings, with minds and souls, to organize, establish, control, direct, and use the powers which the state confers upon the corporate body, are essential to its existence. Until the persons authorized have breathed the breath of life into the body of the charter, there is no corpo- ration.^" If the members all die or remove from the territory, leaving no successors to exercise these powers or maintain these 18 Clark, Prlv. Corp. §§ 5-9. 20 state V. Dawson, 16 Ind. 40; Willis v. Chapman, 68 Vt. 459, 35 Atl. 459; Yeaton v. Bank, 21 Grat. (Va.) 593; Ellis v. Marshall. 2 Mass. 269, 3 Am. Dec. 49. There must be an acceptance of the 8 NATURE, CREATION, CLASSIBUCATION. (Cll. 1 rights, the corporation is at an end.'* The charter is a sepa- rate, distinct, and necessary part of the organism, but it is not the corporation. The persons authorized by law to assume its rights, powers, and franchises are equally essential to its exist- ence. But until the two have been united by the action of the persons under and within the powers of the charter, the cor- poration is only a potentiality. After the union of the two, and as long as the charter and members both live, the corporation exists.^^ The members exercise the corporate powers and hold the corporate property and perform the corporate functions in the corporate name, and the corporation is said to be a "going concern." But with either the death of all the members or the loss of the charter the essential union of members and body is dissolved, and the legal fiction is at an end; the corporation no longer exists.^' Termination — Members. The charter may expire of its own limitation, or it may be terminated by an act of the law, legislative or judicial ; ^* the individuals composing the corporation may terminate their rela- tion to it by death, surrender, or severance of membership, and, the life being out of the legal body, nothing but the dry shell remains.^* And yet, essential as these two parts are to the charter before corporate life can begin. Smith v. Mining Co., 64 Md. 85, 20 Atl. 1032, 54 Am. Rep. 760. «i 1 Bl. Comm. 485; Chesapeake & O. Canal Co. v. Railroad Co., 4 Gill & J. (Md.) 1; Arthur v. Bank, 9 Smedes & M. (Miss.) 394, 48 Am. Dec. 719; 2 Kent, Comm. 308, 309; Lehigh Bridge Co. v. Navigation Co., 4 Rawle (Pa.) 9, 26 Am, Dec, 111; Philips v. Wick- ham, 1 Paige (N. Y.) 590. 22 Smith V. Mining Co., 64 Md. 85, 20 Atl. 1032, 54 Am. Rep. 760; People V. Watertown, 1 Hill (N. Y.) 620; PARKER v. HOTEL CO., 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 706; Clark Priv. Corp. §§ 5, 6; Humphreys v. McKissock, 140 U. S. 304, 11 Sup. Ct. 779, 35 L. Ed. 473. 23 Bacon v. Robertson, 18 How. (U. S.) 480, 15 L. Ed. 499; Mason y. Mining Co., 66 Fed. 396, 13 C. C. A. 532. 24 1 Pill. Mun. Corp. §§ 165, 169. t» People V. Wren, 4 Scam. (111.) 275; Smith v. Smith, 3 Desans. (S. C.) .557. § 3) NATURE OF CORPORATIONS. 9 corporate existence, the body and its members have also, in the view of the law, a separate and distinct existence. In its rela- tions with other persons and with the state, in the exercise of its powers and control of its property it is only the corporation that acts ; everything is done in the corporate name ; the obli- gations contracted, the liabilities incurred, the conveyances made, the functions exercised, are all in the name of the corpo- ration; and thus it is an artificial person. ^^ But the individ- ual members, though essential to the corporate existence, do not own the property, do not make the contracts, do not commit torts, nor incur the liability of the corporation.^^ They retain their own separate personality ; each one is a separate and dis- tinct person, with no corporate power, franchise, or property vested in him. It is the collective body of corporators hav- ing the right to these powers and franchises and this property of the corporation, that control, govern, and direct its opera- tion.^* However powerful in thought, will, or money any one member may be — however dominant his influence and habit — he is not the corporation; and, even though it should happen that he own every share of stock or every acre of land in it, he could not in his own name convey any portion of the corpo- rate property ; and the corporation may sue one of its own members, and the member may sue the corporation, on either ae PARKER v. HOTEL CO., 96 Tenn. 252. 34 S. W. 209, 31 L. R. A. 706; Baldwin v. Canfield, 26 Minn. 43, 1 N. W. 261; William- son's Syndics v. Smoot, 7 Mart. O. S. (La.) 34, 12 Am. Dec. 494: DARTMOUTH COLLEGE v. WOODWARD, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. 27 Clark, Priv. Corp. §? 558, 559, 564, 565. But in two notable cases involving the "corporation trust questions" the courts of New York and Ohio have pronounced judgment against corporations for wrongs done by the members. PEOPLE v. SUGAR REFINING CO., 121 N. Y. 582, 74 N. E. 834, 9 L. R. A. 33, 18 Am. St. Rep. 843; STATE V. OIL CO., 49 Ohio St. 137, 30 N. E. 279, 15 L. R. A. 145, 84 Am. St. Rep. 541. 28 Smith V. Hurd, 12 Mete. (Mass.) 371, 46 Am. Dec. 690; Durfee V. Railroad Co., 5 Allen (Mass.) 230, 242; Dudley v. High School, 9 Bush (Ky.) 578. 10 NATURE, CREATION, CLASSIFICATION. (Ch. 1 contracts or torts, even though they affect or concern the affairs of the corporation.'* Corporate Unity. And yet, separate and distinct as the members and the body are, the members are one ; and that one is the corporation. "The most pecuUar and strictly essential characteristic of a corporate body, which makes it to be such, and not some other thing, in legal contemplation, is the merging of the individuals composing the aggregate body into one distinct, artificial, indi- vidual existence."*" This quality is aptly expressed by Black- stone in the following simile: "All the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law — a person that never dies ; in like manner as the river Thames is still the same river, but the parts which compose it are changing every instant." *^ In a leading New York case it was declared by Chief Justice Nelson "that the essences of a corporation consist in a capacity to have perpetual succession, and a special name and an artificial form, to take and grant property, contract obligations, sue and be sued by its corporate name as an indi- vidual, and to receive and enjoy in common, grants, privileges, and immunities." *' These expressions used generically in re- gard to corporations are especially applicable to private cor- porations ; and yet, as we shall see hereafter, the same general principles and rules may apply to both classes. 2 9 Pope V. Brandon, 2 Stew. (Ala.) 401, 20 Am. Dec. 49; Gordon V. Preston, 1 Watts (Pa.) 385, 26 Am. Dec. 75 ; Waring v, Catawba Co.. 2 Bay (S. C.) 109; Rogers v. Society, 19 Vt. 187; Lexington Life, Fire & Marine Ins. Co. v. Page, 17 B. Mon. (Ky.) 412, 66 Am. Dec. 165. 80 Warner v. Beers, 23 Wend. (N. Y.) 103. •11 Bl. Comm. 468. 32 THOMAS V. DAIvIN, 22 Wend. (N. Y.) 9. C. f. Soutliern Pac. R. Co. V. Orton (C. 0.) 32 Fed. 457. g 4) PUBLIC COKPOBATIONS — DEFINITION. 11 PUBLIC CORPORATIONS— DEFINITION. 4* A public corporation is a corporation created hj the 8tat« for public purposes only, as an instrumentality to in- crease tbe efficiency of government, supply tbe public wants, and promote tbe public welfare. This class of corporations includes not only the municipal corporation, but also agencies of government, called "quasi corporations," whose objects are not the making of private profit nor supplying the wants of the members.^' All corpora- tions are supposed to be created for the public good ; otherwise the legislature, acting for the public, would not enact laws to bring them into existence ; and formerly the popular idea was that the public is interested in every corporation created by it through its legislative authority. The members of a corpora- tion were supposed to be able and willing to return something to the state in consideration for the favors conferred upon them by the incorporation. In Virginia and North Carolina the Supreme Courts in early cases made bold to declare that no act of incorporation ought ever to be passed by the legislature but 88 DARTMOUTH COLLEGE CASE, 4 Wheat. (U. S.) 518, 4 L. Ed. 629; HAMILTON CO. v. MIGHELS, 7 Ohio St. 109; Soper v. Henry County, 26 Iowa, 267; MINERS' DITCH CO. v. ZELLER- BACH, 37 Cal. 543, 99 Am. Dec. 300; TEN EYCK v. CANAL CO., 18 N. J. Law, 200, 37 Am. Dec. 233; Regents of University v. Williams, 9 Gill & J. (Md.) 365, 31 Am. Dec. 72; Regents of University v. Mc- Connell, 5 Neb. 423. The fact that the state has an interest in it does not make the corporation public, BANK OF U. S. v. BANK, 9 Wheat. 904, 6 L. Ed. 244; nor the fact that part of its support comes from the state, Cleaveland v. Stewart, 3 Ga. 2S3; nor that it renders service to the state, Thomson v. Railroad Co., 9 Wall. (U. S.) 579, 19 L. Ed. 792. See, also, Raleigh & G. R. Co. v. Davis, 19 N. C. 451; Alabama & T. R. R. Co. V. Kidd, 29 Ala. 221 ; McCune v. Gas Co., 30 Conn. 621, 79 Am. Dec. 278 ; PEOPLE v. MORRIS, 13 Wend. (N. Y.) 325 ; Ben- nett's Branch Imp. Co.'s Appeal, 65 Pa. 242; Directors for Leveeing Wabash River v. Houston, 71 111. 318. 12 NATURE, CREATION, CLASSIFICATION. (Ch. 1 in consideration of services to be rendered to the public.^* The same view found frequent expression or recognition also in the decisions of other states, but this judicial opinion as to matters of public policy in respect to corporations has not controlled the legislative departments of our American states. In the appro- priate exercise of their co-ordinate powers with regard to the public policy of the state, the legislatures, during the latter half of the nineteenth century, in some states gradually, in others rapidly, seemed generally to have reached their own conclusion that corporations are a public benefit per se. They have ac- cordingly been concocted and created for nearly every imagin- able purpose, public and private.'* CLASSIFICATION. 5. PnUic corporations are divisible into three olassest (a) Quasi Corporations. (b) Municipal Corporations. (c) Quasi Public Corporations. A quasi corporation is an involuntary political or civil divi- sion of tbe state, created by general law to aid in tbe administration of government. A municipal corporation is a body politic and corporate created by Istvr by the incorporation of tbe inhabitants of a city, town, or district as an agency of tbe state to regulate and administer the local affairs thereof. A quasi public corporation is a private corporation organized to make profit by rendering public service or supply- ing public ivants* "MILLS V. WILLIAMS, 33 N. 0. 558. «B Judge Thompson (1 Thomp. Priv. Corp. § 132), giving extracts from the laws of eight representative states, showing the pm-poses for which corporations are permitted, describes such legislation as "fantastic patchwork." Judge Dillon (1 Dill. Mun. Corp. § 37) quotes approvingly the language of an Illinois court, that corporations "have become the greatest means of state and national prosperity," and further says that "public and municipal corporations in all the states and territories are constantly created and universally adopted as part of the ordinary machinery of government." § 5) CLASSIFICATION. 13 The word "quasi," used in the first and last of the foregoing definitions, is the word usually employed by courts and authors in describing these two kinds of public corporations, and has been so long used as to be recognized as a part of our legal nomenclature, foreign and technical though it be. Literally rendered, a quasi corporation is an almost corporation, and a quasi public corporation is an almost public corporation. To the profession, therefore, a quasi corporation is an organization vested with some of the powers and faculties of a corporation, and yet defective in some essential features, such as a county, a town, or a school district.^" «« The word "quasi" has been too long and generally used to be readily abandoned, but both the quasi corporations might appro- priately be included under the term "civil corporations," for civil corporations they surely are. Blackstone says the civil corporations are such as are erected for a variety of temporal purposes, and in- stances the King, the town and borough corporations, church ward- ens, college of physicians, and the universities of Cambridge and Oxford. 1 Bl. Comm. *471. Bouvier defines civil corporations to be "such as afford facilities for obtaining loans of money, making canals, turnpikes, roads, and the like." Title "Corporations." Judge Dillon declares "civil corporations are of different grades or classes, but in essence and nature they must all be regarded as public." 1 Dill. Mun. Corp. § 25. It would thus not only simplify the definitions of public corpora- tions, but also comport with the ideas expressed by these standard authors, to say that public corporations are divided into two classes, municipal and civil; the municipal corporation including the strict corporation for urban government, and the civil embracing all other kinds of public corporations. Quasi corporations are recognized and treated of in the following cases: HAMILTON CO. v. MIGHELS, 7 Ohio St. 109; Wehn v. Commissioners, 5 Neb. 494, 25 Am. Rep. 497; Talbot County Com'rs V. Commissioners, 50 Md. 245; White v. Commissioners, 90 N. C. 437, 47 Am. Rep. 534; School Dist. No. 11 v. Williams, 38 Ark. 454; ASKEW V. HALE COUNTY, 54 Ala. 639, 25 Am. Rep. 730; Soper V. Henry Co., 26 Iowa. 264; HARRIS v. SCHOOL DIST., 8 Fost. (N. H.) 58; Scales v. Chattahoochee County, 41 Ga. 225; Rogers v. People, 68 111. 154; Beach v. Leahy, 11 Kan. 23; Hamilton Co, v. 14 NATURE, CREATION, CLASSIFICATION. (Ch. 1 A quasi public corporation describes one which is organized under the statutes providing for the creation of private corpora- tions, and therefore is to be treated as such at all times, save only with regard to its public franchise and functions, such as the power of eminent domain or the duty of common carrier.*^ To this class belong railways, elevators, canals, and the numer- ous public-service corporations of our cities.^* The municipal corporation is the only representative of the strict and complete public corporation ; it is represented in our cities, boroughs, towns, and villages, whether incorporated under general or special laws. LEGISIiATIVE SANCTION. 6. The creation of a public corporation in America is an aet of sovereign legislative poKrer. This results from the very nature of the corporation, its ob- ject and functions. It is an agency of government ; it may ex- ercise the sovereign power of eminent domain ; or it may be a monopoly. Neither of these powers can emanate from any source except the sovereign. In the United States that sov- ereign may be either the federal government or a state. ^® Garrett, 62 Tex. 602; Riddle v. Proprietors, 7 Mass. 187, 5 Am, Dec. 35; Adams v. Bank, 1 Me. 363, 10 Am. Dec. 88; Town of Nortli Hempstead v. Hempstead, 2 Wend. (N, Y.) 109; McLoud v. Selby. 10 Conn. 390, 27 Am. Dec. 689; Commonwealth v. Green, 4 Whart. (Pa.) 531, 598; Cole v. Fire Engine Co., 12 R. I. 202; Polk v. Plum- mer, 2 Humph. (Tenn.) 500, 37 Am. Dec. 566; Levy Court v. Cor- oner, 2 Wall. (U. S.) 501, 17 L. Ed. 851. «7 MUNN V. ILLINOIS, 94 U. S. 113, 126, 24 L. Ed. 77; RAIL- ROAD COMMISSION CASES, 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636; CHICAGO, B. & Q. R. CO. v. IOWA, 94 U. S. 155, 164, 24 L. Ed. 94 ; State v. Gas Co., 37 Ohio St. 45. 38 Clark, Priv. Corp. §§ 10, 11, p. 30; Thomp. Priv. Corp. § 27; Head v. University, 47 Mo. 220; Directors for Leveeing Wabash River v. Houston, 71 111. 318; Tinsman v. Railroad Co., 26 N. J. Law (2 Dutch.) 148, 69 Am. Dec. 565. 39 Tied. Mun. Corp. § 22; Smith, Mun. Corp. §§ 33, 34; Thomp. § 6) LEGISLATIVE SANCTION. 15 We are accustomed to speak of each of these sovereign powers as "the State" ; i. e., the representative of the sovereign will of the people.*" Since, therefore, the public corporation is one which is clothed with power to exercise attributes of sov- ereignty, it is obvious that such power must come from a sov- ereign; and hence it is a canon of corporation law that only the State can create a public corporation.*^ Creation by the Legislature. Equally certain is it that this power to create corporations belongs to the legislature of the state. In our complex Ameri- can system, the powers of government are distributed among the three co-ordinate departments, legislative, executive, and judicial ; and their respective functions are well defined.*^ The creation of a corporation is not a judicial nor an executive act, but an act of legislation. It requires the enactment of a law whereby alone the powers, privileges, and franchises of a corporation can be granted.*^ It is therefore the function of the legislature, the lawmaking power, to create a public cor- poration and give it authority among men. Priv. Corp. § 35; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct 256, 32 L. Ed. 637; Deitz v. Central, 1 Colo. 332. 40 We have inherited the term from our English ancestors, who use it in contradistinction to the "church," to express the sovereign temporal power. But in America we have no need for this particular distinction; we use the term both in technical and popular speech to express our idea of the sovereign power of the government, whether federal or state. 41 Tied. Mun. Corp. § 22; Elliott, Mun. Corp. § 2; Smith, Mun. Corp. § 33; Town of New Boston v. Dunbarton, 12 N. H. 409; 1 Dill. Mun. Corp. § 37. 42 Cooley, Const. Lim. (6th Ed.) pp. 46, 47. See. also, Const. U. S. arts. 1, 2, 3, where the powers of the various departments of gov- ernment are explicitly declared. 1 Dill. Mun. Corp. § 37. 48 Hope V. Doaderick, 8 Humph. (Tenn.) 1, 47 Am. Dee. 597; City of Memphis v. Water Co., 5 Heisk. (Tenn.) 529; Franklin Bridge Co. V. Wood, 14 Ga. 80; Mayor of Mobile v. Moog, 53 Ala. 561; Mc- Pherson v. Foster, 43 Iowa, 48, 22 Am. Rep. 215; Atkinson v. Rail- 16 NATUIIE, CREATION, CLASSIFICATION. (Ch. 1 Legislative Authority — How Expressed. This authority is usually conferred by a special act creating the corporation, and declaring its purpose, powers, rights, and functions ; or it may be a general act of the legislature author- izing the creation of municipal corporations by an association of individuals on their compliance with certain forms, requisites, and conditions precedent. Under the latter method, the char- ter usually consists of an instrument signed by the corporators, in which is declared their purpose to become a corporation un- der the provisions of the general law for the specified purpose, and with certain expressed rights, powers, and franchises under the law. Under general incorporation acts, a public election by the persons residing in the proposed corporate boundaries is usually required antecedent to the formation of the corpora- tion. Under special acts, popular consent is rarely required, unless demanded by the Constitution. Prescription. In England many municipal corporations exist without orig- inal charter. This is noticeably true of the great corporation of London, whose existence antedates the Norman Conquest; but its corporate character has been repeatedly recognized in royal charters or grants of power and in acts of Parliament, and thus it exists under authority from the State.** Corpora- road Co., 15 Ohio St. 21. There is no limitation upon this power of the Legislature, except it be provided by Constitution. Jameson v. People, 16 111. 257, 63 Am. Dec. 304; Chandler v. Douglass, 8 Blackf. (Ind.) 10, 44 Am. Dec. 732. 44 On the continent of Europe cities and towns were first erected into corporate commvmities and endowed with many valuable fran- chises in the eleventh century. The consent of the feudal sover- eign was absolutely necessary to their creation, inasmuch as many of his prerogatives and revenues were thereby considerably diminished. And so in England, Blackstone tells us, the King's consent, either impliedly or expressly given, is absolutely necessary to the erection of any corporation. 1 Bl. Comm. p. *472. The methods by which this consent was expressly given were by act of Parliament or by charter. Where the corporation existed by prescription, as in the § 6) LEGISLATIVE SANCTION, 17 tions like this are often called "corporations by prescription," since they have exercised their franchises and existed as cor- porations "time whereof the memory of man runneth not to the contrary." Origin. Corporations existed in Greece and Rome fully six hundred years before the Christian Era. With the advance of civiliza- tion they were introduced into Gaul and Britain, and elsewhere throughout Europe, and have been used in Western Europe during the twenty-five intervening centuries. Curious as the question may be, it is not profitable for us to discuss whether the corporation had its origin in Rome or Greece. We may well leave that to the contention of the Romanists and the Hellenists. The Greek state we know to have been little more than a city, with surrounding territory attached, owned by the citizens and cultivated by their slaves. The Empire of Rome was not a state, but a gigantic municipality governing the world, and leaving its impress upon all modern life and insti- tutions.*' case of the City of London, the consent of the King was conclu- sively presumed. The royal assent is formally expressed in every act of Parliament. All the earlier acts of Parliament incorporating towns and cities recognized the previous existence of the corpora- tion, and simply confirmed to them existing privileges and franchises; thereby recognizing the previous royal grant either by prescription or charter. But in England, the King's authority to delegate this power was not questioned, and so the great lords, under the Norman, Angevin, Plantagenet, and Tudor Kings, exercised this power and granted charters of incorporation. This power was also exercised by the spiritual lords, and until a comparatively recent date the city of Durham has existed under an episcopal charter granted by the Lord Bishop of Durham. 4 6 We may frankly acknowledge our indebtedness to both Greece and Rome for devising municipalities for the government of urban population. But the mission of Greece was to give art to the world, while Rome contributed law and order. Private modern corporations may therefore best look for their antitype to the Roman Collegia, and modern municipalities will find their prototype in the city of Ing.Corp. — 2 18 NATURE, CREATION, CLASSIFICATION. (Ch. 1 These three classes of pubUc corporations — municipal, quasi corporations, and quasi public corporations — having many ele- ments in common, have yet so many features of distinction that they can be more satisfactorily and instructively treated under separate heads, whereby the student may be made acquainted with those doctrines which are recognized and enforced in cases, first, of quasi corporations; second, of municipal corporations; and, last, of quasi public corporations. Rome. She not only conquered the world with her arms, but she impressed upon it the dominant features of her civilization, and es- pecially of her law. The corpus juris civilia has ruled continental Europe for a thousand years, and each century of that period has witnessed its gradual encroachment upon the common law of Eng- land; and, while the institutions of a country are usually the product of the genius of the people, we cannot, as "the heirs of all the ages," deny this inheritance from Rome. § T) QUASI COBPOBATIONS — COUNTIES, ETC. 19 CHAPTER n. QUASI CORPORATIONS— LIABILITIES, ELEMENTS, COUN- TIES, PROPERTY, ETC. 7. Quasi Corporations. 8. Immunities. 9. Distinguishing Elements. 10. Counties. 11. Creation of Counties — Legislative Power. 12-13. Property — Public Use — Sovereign Power. 14. Government and Officers. 15. Powers of County Government. 16. Powers of County Government (continued), 17. Torts. 18. Power of Eminent Domain. 19. Police Power. QUASI CORPORATIOXS. 7. Quasi corporations include every local snbdivlsioii of a st^te, other than a municipality, created by general lajxr as an agency of the state to effect the adminis- tration of public affairs and the enforcement of law. Municipalities proper included incorporated villages, towns, and cities, having the powers of local legislation and administra- tion.* They are usually called into existence at the direct so- licitation or by the free consent of the persons composing them, for the promotion of their own local and private advantage and convenience.^ They are highly organized, possessing the usual attributes and incidents of a perfect corporation as recognized 1 Dill. Mun. Corp. (4th Ed.) § 22, p. 42; Beach, Mun. Corp. § 3, p. 7; CITY OF PHILADELPHIA V. FOX, 64 Pa. 180; Heller v. Stremmel, 52 Mo. 309. 2 Dill. Mun. Corp. § 23; Beach, Mun. Corp. § 4, p. 8; BOARD OF HAMILTON COUNTY COM'RS V. MIGHELS, 7 Ohio St 109; CITY OF PHILADELPHIA v. FOX. 64 Pa. 180. 20 QUASI COKPOKATIONS COUNTIES, ETC. (Ch. 2 by the common law.* They have charters like other complete corporations, and are subject to the great body of the law of corporations, though with many exceptions on account of their public character. In short, they are full corporations, and therefore must be distinguished from quasi corporations, which are involuntary,* having no charter,'* governed solely by the statute law of the state, and exercising only the particular ad- ministrative functions conferred upon them thereby.* Quasi Corporations. Quasi corporations have been held to include counties,' townships,^ New England towns,® school districts,*** road dis- » Beach, Mun. Corp. § 3, p. 7; Cuddon v. Eastwick, 1 Salk. 192; Brinckerhoff v. Board, 37 How. Prac. (N. Y.) 499; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103. ♦ Beach, Mun. Corp. § 4; BOARD OF HAMILTON COUNTY COM'RS V. MIGHELS, 7 Ohio St. 109. 6 Dill. Mun. Corp. § 25; Smith, Mun. Corp. § 8: "Counties, town- ships, school districts, road districts, and like public quasi corpora- tions do not usually possess corporate powers under special charters; but they exist under general laws of the state." 8 In the case of BOARD OP HAMILTON COUNTY COM'RS v. MIGHELS, supra, the coui't said, with reference to counties: "They are local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solici- tation, consent, or concurrent action of the people who inhabit them, • • * superimposed by a sovereign and paramount authority." See Town of Freeport v. Supervisors, 41 111. 495; Cooley, Const. Urn. (6th Ed.) p. 294. 7 Talbot County Com'rs v. Queen Anne's Co., 50 Md. 245; Pulaski Co. V. Reeve, 42 Ark. 55; BOARD OF HAMILTON COUNTY COM'RS v. MIGHELS, 7 Ohio St. 109; See, also, Boone, Corp. § 10; Elliott, Mun. Corp. § 3. 8 MOWER v. LEICESTER, 9 Mass. 247, 6 Am. Dec. 63; Town of North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109; Damon v. Granby, 2 Pick, (Mass.) 352. » Commonwealth v. Roxbury, 9 Gray (Mass.) 451; EASTMAN v. MEREDITH, 36 N. H. 284, 72 Am. Dec. 302— where it was said that the New England towns are involuntary corporations, having given 10 See note 10 on opposite page. § 7) QUASI CORPORATIONS. 21 tricts/^ public commissioners/^ boards of supervisors,^^ school trustees,^* and other bodies "created for a public purpose as an agency of the state, through which it can most conveniently and effectually discharge the duties of the state as an organized government to every person, and by which it can best promote no assent to tlieir creation, and having been incorporated by virtue of no contract, express or implied, with the state. In TOWN OF BLOOMFIELD v. BANK, 121 U. S. 121, 7 Sup. Ct. 865, 30 L. Ed. 923, Gray, J,, said: "Towns in Connecticut, as in the otlier New England states, differ from trading companies, and even from munic- ipal corporations elsewhere. They are territorial corporations, into which the state is divided by the legislature, from time to time, at its discretion, for political purposes and the convenient administra- tion of government. They have those powers only which have been expressly conferred upon them by statute, or which are necessary for conducting municipal affairs; and all the inhabitants of the town are members of the quasi corporation." Town of Granby v. Thurs- ton, 23 Conn. 416; Webster v. Harwinton, 32 Conn. 131; Parsons v. Goshen. 11 Pick. 396; Inhabitants of Norton v. Mansfield, 16 Mass. 48; Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145. 10 Beach v. Leahy, 11 Kan. 23; INHABITANTS OF FOURTH SCHOOL DIST. V. WOOD, 13 Mass. 193; HARRIS v. SCHOOL DIST., 8 Fost. (N. H.) 58; Wilson v. School Dist, 32 N. H. 118; Foster v. Lane, 30 N. H. 305; Rogers v. People, 68 111. 154; Scales v. Chattahoochee Co., 41 Ga. 225. A school district has been held to be included within the phrase "political or municipal corpora- tion." Clark V. Thompson, 37 Iowa, 536. So, also, a township. Curry v. Sioux City Tp., 62 Iowa, 104, 17 N. W. 191; Winspear v. Holman, 37 Iowa, 542. See, as to construction of word "town," Stout V. Glen Ridge, 59 N. J. Law, 201, 35 Atl. 913. See, also, School Dist. No. 11 V. Williams, 38 Ark. 454. 11 People V. Lathrop, 19 How. Prac. (N. Y.) 358; Levy Court v. Coroner, 2 Wall. .501, 17 L. Ed. 851; Scioto Com'rs v. Gherky, Wright (Ohio) 493; Lower Board of Com'rs of Roads v. McPherson, 1 Speers (S. C.) 218. 12 Attorney General v. Andrews, 2 Macn. & G. 226; Hall v. Taylor, El. Bl. & El. 107. 13 Pomeroy v. Wells, 8 Paige (N. Y.) 406; Todd v. Birdsall, 1 Cow. (N. Y.) 260, 13 Am. Dec. 522. 14 Littlewort v. Davis, 50 Miss. 403. See Bassett v. Fish, 75 N. Y. 303. 22 QUASI CORPOUATIOXS — COUNTIES, KTC. (Ch. 2 the welfare of all." ^' Considered with respect to the limited number of their corporate powers, the bodies above named rank low down in the scale or grade of corporate existence, and hence they are called quasi (almost) corporations.^* Though all in the same class, they are of different grades in the scale of corporate life, from the New England town, which so closely approximates the municipality as scarcely to be distinguishable from it in law,^^ down through the other public instrumentah- ties of various powers and functions to the school district, de- clared by the Supreme Court of New Hampshire to be a "quasi corporation of the most limited powers known to the law." ^* This variety of powers and rank results from the difference in the statutes creating and empowering these various corpora- tions, which must always be consulted and carefully scrutinized to ascertain and determine the limit of powers, functions, and liabilities. Subject to statutory regulation, there are, of course, certain peculiar qualities and attributes common to all quasi corporations, which distinguish them from municipalities, and exempt them from the general law of corporations. IB CITY OF GALVESTON v. POSNAINSKY, 62 Tex. 118, 50 Am. Rep. 517, wherein also a quasi corporation is spolien of as "a sub- division of the state, created solely for a public purpose, by a gen- eral law applicable to all such subdivisions." 16 Dill. Mun. Corp. § 25; Hamilton Co. v. Garrett, 62 Tex. 602. 17 TOWN OF BLOOMFIELD v. BANK, 121 U. S. 121, 7 Sup. Ct. 865, 30 L. Ed. 923; Commonwealth v. Roxbury, 9 Gray (Mass.) 451; EASTMAN v. MEREDITH, 36 N. H. 284, 62 Am. Dec. 302. In Warren v. Charlestown, 2 Gray (Mass.) 84, the court said: "The marked and characteristic distinction between a town organization and that of a city is that in the former all of the qualified inhabit- ants meet, deliberate, act, and vote in their natural and personal capacities, whereas in a city government this is all done by tlieir representatives." 18 HARRIS V. SCHOOL DIST., S Fost. (N. H.) 5S. § 8) IMMUMTIES. 23 IMMUXITIXiS. 8. Qnasl corporations are not liable to private action against them for a breach of duty, nnless such action be ex- pressly given by statute. This has been taken as a chief mark of distinction between municipal corporations and quasi corporations. In the leading case of Board of Hamilton County Com'rs v. Mighels/* in which judgment had been rendered in the court below against the county for neglect of public duty by its board of commis- sioners, the Supreme Court of Ohio, overruling a previous case,^° reversed the judgment of the inferior court upon the ground that, "by the decisions of courts of justice and the treatises of learned men," the people of a county are not liable for the official delinquencies of their county commissioners, or other county officers, either on the principles or precedents of the common law.^^ In the course of the opinion expressing the reasons of the court for this decision, Brinkerhoff, J., said: "A municipal corporation proper is created mainly for the in- terest, advantage, and convenience of the locality and its peo- ple. A county organization is created almost exclusively with a view to the policy of the state at large, for the purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military or- ganization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an »» BOARD HAMILTON COUNTY COM'RS v. MIGHELS, 7 Ohio St. 109. so Brown County Com'rs v. Butt, 2 Ohio, 348. 21 BOARD OF HAMILTON COUNTY COM'RS V. MIGHELS, 7 Ohio St 109. In this connection the court said: "It is undoubtedly competent for the legislature to make the people of a county liable for the official delinquencies of the county commissioners, and, if they think it wise and just, without any power in the people to control the acts of the commissioners, or to exact indemnity from them. But this has not yet been done." 24 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 2 exception, all the powers and functions of the county organiza- tion have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general ad- ministration of that policy," Reasons for. It is familiar law that no action lies against the state for the neglect or misconduct of its officers ; therefore none lies against the county, which is but an arm of the state for gen- eral administration ; while a municipal corporation, being a voluntary organization for the special benefit of its people, ia liable in many particulars for the neglect of its agents to per- form official duty, resulting in injury to individuals.^^ The Ohio case above cited has been very generally followed in the courts of the United States for the past half century, and may be regarded as established law with regard not only to coun- ts Judge Dillon, in his Commentaries on the Law of Municipal Corporations, vol. 2, § 966 (4th Ed.), says: "As respects municipal corporations proper, whether specially chartered or voluntarily or- ganized under general acts of the character alluded to, it is, we think, universally considered, even in the absence of statute giving the action, that they are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or ofHcers in the course of the performance of corporate powers constitution- ally conferred, or in the execution of corporate duties; and It is the almost, but not quite, uniform doctrine of the courts that they are also liable where the wrong resulting in an injury to others consists in a mere neglect or omission to perform an absolute and perfect (as distinguished from a legislative, discretionary, quasi ju- dicial, or imperfect) corporate duty." And, further: "T^'hat is term- ed a quasi corporation, though possessing full corporate capacity and a corporate purse, is not impliedly liable for acts of misfeasance or neglect of public duty on the part of its officers and agents, while for the same or a similar wrong there is such a liability resting on municipal or chartered corporations." In City of Chicago v. Railroad Co., 105 111. 73, Sheldon, J., said: "We recognize the doctrine to be that the unauthorized acts of mu- nicipal officers are regarded as the acts of the corporation, provided the acts are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular act relates." § 8) IMMUNITIES. ' 25 ties, but also to all other quasi corporations.^' The Ohio court rested its decision particularly upon the reason that the county had no fund out of which satisfaction could be made, and upon the authority of the leading English case of Russell V. Men of Devon,* the authority of which has been generally «s Larkin v. Saginaw Co., 11 Mich. 88, 82 Am. Dec. 63; Lesley y. White, 1 Speers (S. C.) 31; Carroll v. Board, 28 Miss. 38; Soper V. Henry Co., 26 Iowa, 264; Board of Chosen Freeholders Sussex County V. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530. In MOWER V. LEICESTER, 9 Mass. 247, 6 Am. Dec. 68, which was an action against a town for an injury caused by a defect in a highway. Gray, 0. J., says: "It is well settled that the common law gives no such action. Corporations created for their own benefit stand on the same ground, in this respect, as individuals. But quasi corpora- tions, created by the legislature for purposes of public policy, are subject, by the common law, to an indictment for the neglect of duties enjoined on them; but are not liable to an action for such neglect, unless the action be given by some statute." See HILL v. BOSTON, 122 Mass. 344, 350, 23 Am. Rep. 332; WEIGHTMAN v. WASHINGTON CORP., 1 Black, 39-53, 17 L. Ed. 52; Beardsley V. Smith, 16 Conn. 375, 41 Am. Dec. 148; Town of Union v. Craw- ford, 19 Conn. 331; Chidsey v. Canton, 17 Conn. 475; Titler v. Iowa Co., 48 Iowa, 90; Sherbourne v. Yuba Co., 21 Cal. 113, 81 Am. Dec. 151; Lorillard v. Monroe, 11 N. Y. 392, 62 Am. Dec. 120; State v. Hudson Co., 30 N, J. Law, 137; Kincaid v. Hardin Co., 53 Iowa, 430, 5 N. W. 590, 36 Am. Rep. 236; Hollenbeck v. Winnebago Co., 95 111. 148, 35 Am. Rep. 151. In Indiana it is imperative upon the county to keep bridges in repair. It being empowered to appropriate money for that purpose, it is held impliedly liable for damages sustained by a traveler from a county bridge negligently allowed to remain out of repair. House V. Commissioners, 60 Ind. 580, 28 Am. Rep. 657; Abbett v. Johnson Co., 114 Ind. 61, 16 N. E. 127; Board of Knox County Com'rs v. Montgomery, 109 Ind. 69, 9 N. E. 590. And in the New England States the doctrine does not apply to the towns where the duty is j)rivate or corporate, as distinguished from public; nor in the case where the wrongful act is in the nature of a trespass upon the prop- erty rights of others. Ball v. Wiachoster, 32 N. H. 435, explained and limited by Gilman v. Laconia, 55 N. H. 130, 20 Am. Rep. 175. See, also, Weed v. Greenwich, 45 Conn. 170. •RUSSELL V. MEN OF DEVON, 2 Term R. 667. 26 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 2 recognized by the courts of this country.^* Whether placed upon one ground or the other, or upon both, it may be regarded as the settled law of the land, and the same reasoning which applies to counties may be applied with greater force to other quasi corporations, all of which save the New England town, are of lower grade than the county. The same doctrine has also been repeatedly stated by the courts of New England in the decisions of cases brought against towns to recover dam- ages for injury resulting from the neglect of town officials.** 14 MOWER V. LEICESTER, 9 Mass. 247, 6 Am. Dec. 63; White V. City Council, 2 Hill (S. C.) 571; WARD v. HARTFORD CO., 12 Conn. 404; Fowle v. Common Council, 3 Pet. (U. S.) 409, 7 L. Ed. 719; Morey v. Newfame, 8 Barb. (N. Y.) 645. 2 In Bigelow v. Randolph, 14 Gray, 541, where a town in Mas- sachusetts had assumed the duties of a school district, and a scholar attending the public scliool was injured by x-eason of a dangerous excavation in the schoolhouse yard, owing to the negligence of the town officers, it was held that the town was not liable. In the case of EASTMAN v. MEREDITH, 36 N. H. 284. 72 Am. Dec. 302, the material facts were that the town of Meredith (de- fendant) built a townhouse, in which, among other things, to hold town meetings ; the house, by reason of the negligence of those con structing it for the town, was defectively built, and the flooring gave way during a session of the town meeting, and the plaintiff was in- jured while in attendance upon said meeting. It was held that the plaintiff could not recover ; and this decision was based mainly upon the ground, above stated, that a statute is necessary. It has been uniformly so ruled in New England since the early cases of Riddle V. Proprietors, 7 Mass. 169, 5 Am. Dec. 35, and MOWER v. LEICES- TER, 9 Mass. 250, 6 Am. Dec. 63, in cases to subject towns to a civW action for neglect to perform a public duty. § 9) DISTINGUISHING ELEME2sTS. 27 DISTINGUISHING ELEMENTS. 9* Quasi corporations, notwithstanding the variety of thelv objects and functions, have other elements in com- mon distinguishing them from municipal corporations proper and other bodies, and attaching them to this class of public corporations, among which are the fol- io w^ingt (a) They have no charters. (b) They are involuntary organizations created by the sov- ereign po-wer of the state of its oxm sovereign v^ill, vrithout the request and regardless of the -wishes of the inhabitants. (o) They are created exclusively for purposes of civil ad- ministration. (d) They do not possess all the common-la^v pow^ers implied from and incidental to corporate existence, but such only as are implied from the powers expressly granted, and the duties imposed upon them by statute or usage. Quasi corporations are usually erected in pursuance of gen- eral law, applicable alike to all parts of the state,^® and the powers conferred and the duties imposed upon each class of them are specified in the general law. Counties, though creat- ed and bounded by special statute, obtain their powers and func- tions from, and are charged with their duties by the general law, and none of these bodies can exist except under legislative enactment. But they are not required to possess, nor do they have, that documentary evidence of authority from the state presumed to be held by full corporations as evidence of their rights and powers."' Popular Assent. Private corporations can only be established by the assent and co-operation of the members. Municipal corporations may be, but rarely are, erected without the request or consent of the 2 8 CITY OF GALVESTON v. POSNAINSKY, 62 Tex. 118, 50 Am. Rep. 517. 2T Cooley, Const. Lim. (6th Ed.) pp. 294, 295. 28 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 2 inhabitants of the proposed nninicipality. Quasi corporations are "superimposed by the sovereign and paramount authori- ty" ^^ of the state as agencies for civil government, without the request of the people of the locality, and whether they may wish them or not. "Whether they shall assume the duties or exercise the powers conferred, the people of the political di- vision are not allowed the privilege of choice. The legislature assumes such division of the state to be essential in republican governments, and the duties are imposed as part of the proper and necessary burden which the citizens must bear in main- taining and perpetuating constitutional liberty." *• Local Benefits. Under our form of government, the sovereign power over public affairs not committed to the federal government belongs to the state. Our theory is that the people rule; they ordain laws through their state legislatures for the purposes of local government. For the enforcement of these laws and the ad- ministration of public affairs, various instrumentalities are re- quired. Local self-government is a cherished inheritance of the Anglo-Saxon. To effect this, local agencies are essential, and counties, towns, districts, and local boards have been estab- lished for the more efficient administration of general laws throughout the state. They are not created for the special benefit of the people of the locality, but to insure the execution of the sovereign will in all parts of the state, and thereby pro- mote the general welfare.^'* It results, of course, that the peo- «« HAMILTON CO. COM'RS V. MIGHELS. 7 Ohio St. 109. See, also, HARRIS V. SCHOOL DIST., 8 Fost. (N. H.) 58. 28 Cooley, Const. Lim. (Gtb Ed.) pp. 294, 295. See, also, Scales V. Chattahoochee Co., 41 Ga. 225; Granger v. Pulaski Co., 2G Ark. 37; Palmer v. Fitts, 51 Ala. 489. 30 In HAMILTON CO. COM'RS v. MIGHELS, 7 Ohio St. 109. al- ready cited, Brinkerhoflf, J., said : "A county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administi-ation, in mat- ters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially § 9) DISTINGUISHING ELEMENTS. 29 pie of each locality are benefited by the local administration under these quasi corporations; but this is in consequence of the public policy of the state and the wholesome effect of the administration of the general law. No particular privileges or franchises, no special rights or favors, are conferred on these quasi corporations. The powers, rights, duties, and functions are wholly of a public nature.*^ Inherent Powers. Corporations generally possess certain powers impliedly at- tached to them as incidental to their existence as such, among which are perpetual succession, a corporate name whereby to contract, receive, hold, and grant title, to sue and be sued, pur- chase and hold property, have a common seal, make by-laws, and remove members.*^ Since quasi corporations are not full for tne general administration of justice. With scarcely an ex- ception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy." See, also, Boalt v. Commissioners, 18 Ohio, 16; WARD V. HARTFORD CO., 12 Conn. 406. 31 Judge Cooley, in his treatise on Constitutional Limitations (6th Ed.) p. 295, says, with reference to quasi corporations: "Usually their functions are wholly of a public nature, and there is no room to imply any contract between them and the state, in their organiza- tion as corporate bodies, except that which springs from the ordinary rules of good faith, and which requires that the property they shall acquire, by local taxation or otherwise, for the purposes of their organization, shall not be seized by the state, and appropriated in other ways. They are therefore sometimes called quasi corpora- tions to distinguish them from the corporations in general, which possess more completely the functions of an artificial entity." 3 2 Clark, Priv. Corp. § 51; Elliott. Priv. Corp. § 140. In Hopo Mut. Life Ins. Co. v. Weed, 28 Conn. 63, it was said: "While a cor- poration has no powers except those which are conferred by its charter, it is not requisite that these powei-s should be expressly granted, but it possesses impliedly and incidentally all such powers as are necessary for the purpose of carrying into effect those which are expressly granted. The creation of a corporation for a specified purpose implies a power to use the means necessary to effect that 30 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 2 corporations, completely organized and empowered by charter to act in many respects as a natural person, but are merely state agencies and instrumentalities for governmental purposes, all implied rights and powers attributed to municipal corporations by common law are not possessed by quasi corporations.'" They may not have a common seal, nor make by-laws, nor re- move members ; and yet their nature is such that obviously they have perpetual succession and a corporate name, and they may purchase and hold property necessary for the performance of their functions. They are so unlike the public corporations of England that the rules of the common law cannot be indis- criminately applied to them.'* And yet wherein the purposes of organization and mode of operation of the quasi corporations in this country are identical with similar bodies in England the rules of the common law are applicable. This is illustrated by the fact that very generally in America the courts have rec- ognized and followed, in decisions affecting the liability of counties and other quasi corporations, the leading English case of Russell V. Men of Devon.'' The usual rules adopted by the courts for determining the rights and functions and limitations of power of quasi corporations are the canons of construction applied to statutory law.'® The statute confers certain express powers; the courts recognize whatever implied powers are purpose." See Union Bank v. Jacobs, 6 Humph. (Tenn.) 515; Bates V. Beach Co., 109 Cal. 160, 41 Pac. 855; People v. Car Co., 175 111. 125, 51 N. E. 664, 64 L. R. A. 366; Lyndeborough Glass Co. v. Glass Co., Ill Mass. 315. 8 3 Inhabitants of Fourth School Dist. in Rumford v. Wood, 13 Mass. 193. 84 Elliott, Mun. Corp. § 11; 1 Dill. Mun. Corp. §§ 32-44. 86 2 Term R. 607; Taylor v. County Court, 2 Utah, 405. See Lyell V. St. Clair Co., 3 McLean (U. S.) 580, Fed. Cas. No. 8,621; Hunsaker v. Borden, 5 Cal. 288, 63 Am. Dec. 130; Sharp v. Contra Costa Co., 34 Cal. 284; WARD v. HARTFORD CO., 12 Conn. 404; Rock Island Co. v. Steele, 31 111. 543; Anderson v. State, 23 Miss. 459. 3 6 1 Dill. Mun. Corp. (4th P:d.) §§ 89-91, where the rules of con- struction are very learnedly and copiously discussed. § 10) COUNTIES. 31 essential to carry out the express powers, having in view the purpose and object of the organization. The nature and extent of these powers will be considered hereinafter in connection with each of the several classes of quasi corporations separately noticed. COUNTIES. 10* Tlie county, as the oldest, commonest, and best knoT^n of all the members of its class, is recognized as the type of the quasi corporation; and the decisions in cases involving the rights, poxvers, and liabilities of coun- ties, being the most numerous and important, com- prise the body of the lai7 in relation to this class of public corporations. The American county, being an adaptation of the English shire to the public wants and conveniences in a newly settled country, is to be found by that name of French origin in every one of the United States save Louisiana, a state of French origin, where it still retains the peculiar English name "par- ish." The county is the largest permanent subdivision of the state, and, however much its nature, functions, and powers may differ in the various states, it is everywhere recognized as a quasi corporation, notwithstanding the fact that in some of the states, where cities have grown and extended until the municipal territory includes the whole county, will be found close anal- ogies to the English county corporate.^' It is not to be sup- posed, however, that, because of the universality of this organ- ization in the American commonwealth, the decisions of the supreme court of each state are to be considered as authority in other states in regard to the powers and functions of these civil divisions of the state. These powers and functions are dependent in each state not only upon the constitutional and statutory law of the state, but also upon the local conception of the county existing in that state, growing out of its origin, his- 3 7 See Standard Dictionary, subject "County Corporate"; Ency- clopedia Americana, in verb. 32 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 2 tory, and traditions. But these decisions are consistent and uniform as to the general nature of this organization, as de- clared by the Supreme Court of Ohio,^* and adopted by Judge Dillon as correctly expressing the local character and functions of such bodies : "Counties are at most local organizations, which, for the purposes of civil administration, are invested with a few functions characteristic of a corporate existence. They are local subdivisions of the state, created by the sov- ereign power of the state of its own sovereign will, without the particular solicitation, consent, or concurrent action of the peo- ple who inhabit them." ^* Counties, North and South. Notwithstanding the general, if not unanimous, concurrence of the courts of the other states in this view of the county as a quasi corporation, there is a fundamental political distinction between the counties of New England and of the states south of the Potomac river, having its origin in colonial times, and finding its expression in the Western states settled chiefly by the inhabitants from those respective portions of the country. In the Southern states the county is the unit of political or- ganization and administration, and is therefore a close approxi- mation to the corporation. It has been laid out merely as a part of the governmental machinery, and is subdivided into districts or townships for the more efficient performance of neighborhood governmental functions.'*" In the New England states, on the contrary, the town is the administrative unit, governed by its peculiar and praiseworthy town meeting;*^ 88 HAMILTON CO. v. MIGHELS, 7 Ohio St. 109. 89 HAMILTON CO. v. MIGHELS, supra, quoted by Judge Dillon In his Commentaries on Municipal Corporations (4th Ed.) § 23. 40 Elliott, Mun. Corp. § 6, 41 Thomas Jefferson wrote: "Those wards called 'townships' In New Enj^land are the vital principle of their governments, and have proved themselves the wisest inventions ever devised by the wit of man for the perfect exercise of self-government and for its preser- vation." Jeff. Cyc. in verb. 10) COUNTIES. 33 and a county is but a collection of these towns. As a conse- quence, in all the Southern states, formed for the most part upon the Virginia model, the county has a full set of officers, who are charged with the supervision or performance of all functions of local government.'*^ Under the New England plan, however, the powers and functions of a county are few, and pertain chiefly to the maintenance of county buildings, the granting of licenses, and a partial control over highways. Here it was originally created solely for the performance of functions connected with the judicial department of the state, the ordinary ministerial and administrative functions of govern- ment being left to the towns ; but in the course of time and the progress of development some of these town functions, in a greater or less measure in the various states, have been con- ferred upon the counties, though the town still remains the po- litical unit.*^ In the Middle states, under the aggressive and dominant influence of the conflicting ideas of Massachusetts and Virginia, an amalgamated system of local government was formed, and the county consequently embodies an intermediate legal relation between the counties of New England and those of the Southern states. This system, which distributes affairs of local administration in about equal parts between the county and town or township, is the one existing in the Middle states of New York and Pennsylvania, and commonly prevailing also in the great central states of the Mississippi Valley.** It is 42 "The Southern settlers adopted the county as the unit of admln- Istratiou, while the immigrants from New England carried with them •their ideas of the importance of the town and the town meeting. In New England the county was originally created solely for judicial purposes, although in the process of time certain other functions have been taken from the towusliip and conferred upon it." Elliott, Mun. Corp. § 6. 43 1 Dill. Mun. Corp. §§ 28-30. 44 This is known as the "compromise system," being a compromise between the New England town system and the Southern county sysUnn. The compromise system was developed in New York and Pennsylvania; but the present system in use in Pennsylvania Is Ing.Corp. — 3 84 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 2 to be remembered that, under whatever system the county is organized, the state constitution and the statute under which it is erected are the measure and chart of its functions and powers. CREATION OF COUNTIES— LEGISLATIVE POWER. 11« Every connty exists as a result of a sovereign act of legis- lation, either constitntional or statutory, separating it from the rest of the state as an integral part of its territory, and establishing it as one of the primary divisions of the state for the purposes of civil admin- istration. Counties may be established by an ordinance of the organic law, but they are usually created by special act of legislature, setting forth the name, territorial boundaries, and county seat.*"^ This act of legislation, being an exercise of sovereign legislative power, and solely for public purposes, is limited and restrained in its scope and effect only by the provisions of the state constitution.*" These restraints are commonly such as called the "commissioner form" of this system, and the countj authority consists of commissioners elected by the people of the coun- ty at large; while under the supervisor, or New York, form, the governing board is composed of supervisors elected from the towns composing the county. This form of the compromise system Is found also in Michigan, Illinois, Nebraska, Wisconsin, and Virginia, although in the last-named state the form is somewhat modified. The commissioner form of the system, in addition to Pennsylvania, already mentioned, exists in Kansas, Missouri, Iowa, Indiana, and Ohio, and in a modified form in Minnesota, North and South Dakota, Maine, and Massachusetts, and, according to 1 How. Local Const. Hist. p. 439 (cited by Dr. Elliott in his Principles of the Law of Public Corporations, § 5, note 2), has "been very generally adopted as the form for the county authority in the commonwealths of the South, where there are in the county generally no lesser districts to be represented." 4 6 Elliott, Mun. Corp. § 20. *6 State V. Dorsey Co., 28 Ark. 378; Wade v. Richmond, 18 Grat (Va.) 583; State y. McFadden, 23 Minn. 40; State v. Commissioners, 12 Kan. 426. § 11) CREATION OF COUNTIES — LEGISLATIVE POWER. 35 insure sufficient territory and population and prevent undue en- croachment upon the territory of existing counties.*^ This special act also commonly provides the date when the county shall assume its functions, and names commissioners for the purpose of doing the acts necessary to bring it into existence. This special act is in no sense a charter, and does not express the powers, functions, duties, and liabilities of the county thus created. These are to be found in the constitution and statutes which provide for the organization of the state government, the division of its territory into counties, and express the gov- ernmental powers and functions conferred upon them.** Popular Consent. In some states the constitution requires some popular ex- pression of consent as a condition precedent to the erection of a new county. The determination by the legislature of the ex- istence of the functions necessary to the formation of a new county cannot be assailed in any court by evidence aliunde.*® In case the de facto doctrine has been applied to counties il- legally organized, and the acts of the county officers are de- clared binding upon the people and territory of such county, ^° a state may be estopped by its repeated acts of recognition of a county from questioning the regularity of the passage of the *7 As an instance of these restraints, the Constitution of Tennessee (article 10, § 4) provides: "New counties may be established by the legislature to consist of not less than two hundred and seventy-flve square miles, and which shall contain a population of seven hundred qualified voters; no line of such county shall approach the court- hoiise of any old county from which it may be taken nearer than eleven miles, nor shall such old county be reduced to lesa than five hundred square miles." 48 PEOPLE V. HURLBUT, 24 Mich. 44, 9 Am. Rep. 108; City of Chicago V. Wright, 69 111. 326; Astor v. New York, 62 N. Y. 567; United States v. Memphis, 97 U. S. 284, 24 L. Ed. 937. ■19 Eraser v. James, 65 S. C. 78, 43 S. E. 292; See People v. Nally, 49 Cal. 478. This was a submission to the people of the county of the question of annexation of a portion of an adjoining coimty. 50 Garfield Tp. v. Finnup, 8 Kan. App. 771, 61 Pac. 812. 36 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 2 act creating it.** An act creating a new county, and embracing therein a portion of an old county before the voters therein had signified their consent as required by the organic law, is void."* Legislative Control. Legislative control over counties is so complete that it may change the lines between existing counties, take portions of ex- isting counties to create new counties, and dissolve a county by attaching its territory to other counties.^' This power, how- ever, like all others, must be exercised in the manner and sub- ject to the conditions prescribed by the constitution; and the failure to comply with a constitutional condition precedent will render such act of dissolution or reduction void, and the legal status of the county will be unaffected thereby.** PROPERTY— PUBLIC USE— SOVEREIGN POWER. 12* Counties have the implied power, as incidental to their objects and existence, to take and hold such real es- tate as may be essential and useful for county pur- poses. 13* Such property is held for the public use, and subject to the sovereig-n povper of the state. This power to purchase and hold sufficient real estate to en- able the county to discharge all its public functions is essential to it as an agency of the state for more efficient government ; and, where the legislature has omitted to give the county the 81 People V. Alturas Co., 6 Idaho, 418, 55 Pac. 1067, 44 L. R. A. 122. 82 Segars v. Parrott, 54 S. C. 1, 31 S. E. G77. 83 In re Division of Howard Co., 15 Kan. 194. See, also, Opinion of Supreme Court Judges on Township Organization Law, 55 Mo. 295; Town of Freeport v. Supervisors, 41 111. 495; LARAMIE CO. V. ALBANY CO., 92 U. S. 307, 23 L. Ed. 552. 84 Marion Co. v. Grundy Co., 5 Sneed, 490; Bradley v. Com'rs, 2 Humph. 428, 37 Am. Dec. 563; Roane Co. v. Anderson Co., 89 Tenn. 259, 14 S. W. 1079; Union Co. v. Knox Co., 90 Tenn. 541, 18 S. W. 254. §§ 12-13) PROPERTY — PUBLIC USE — SOVEREIGN POWER. 37 express power to take and hold necessary real property, the courts readily imply the same as reasonably necessary and proper for the execution of the powers expressly granted, as in case of private corporations.^® This would include in New England, where the county functions are few, such real estate as is necessary for the convenience of a courthouse and jail ; and in the South, where these functions are most numerous, the taking and holding of title to as much realty as may be neces- sary not only for courthouses and jails, but also for workhouses and poor-farms, reformatories and asylums.®' Legislative Control. The county, being only an agency of the state, holds such property for its constituent sovereign, and subordinate to its rights and power of disposition.®^ The legislature, as the trustee for and representative of the general public, has full power and control over the public property held by the coun- ty.®* The only limitations upon this power are those ex- pressed in the state and federal constitutions.®* Unless so re- strained, the legislature may by valid law compel the county to purchase and hold appropriate and necessary real estate, or may in its discretion compel the sale thereof, and cover the purchase price into the public treasury.®** 86 PEOPLE V. INGERSOLL, 58 N. Y. 1, 17 Am. Rep. 178; Hay- ward V. Davidson, 41 Ind. 212; Board of Sup'rs of Warren Co. v. Patterson, 56 111. Ill; Clark, Priv. Corp. §§ 51, 52. 56 Board of Sup'rs of Warren Co. v. Patterson, 56 111. Ill; Hay- ward V. Davidson, 41 Ind. 212; PEOPLE v. INGERSOLL, 58 N, Y. 1, 17 Am. Rep. 178. 57 Stone V. Charlestown, 114 Mass. 214; PEOPLE v. INGERSOLL, supra; Smith v. Leavenworth, 15 Kan. 81. 5 8 Jefferson County Com'rs v. People, 5 Neb. 136, wherein it was held that, a county being justly indebted under a conti-act for the erection of public buildings therein, the legislatvu-e may require it to issue its bonds to pay such indebtedness. 59 Dill. Mun. Corp. § 65; State v. McFadden, 23 Minn. 40; State V. County of Dorsey, 28 Ark. 378. «o PEOPLE V. INGERSOLL, 58 N. Y. 1, 17 Am. Rep. 178; Shank- lin V, Madison Co., 21 Ohio St. 575. 38 QUASI COUrOKATlOXS COUNTIKS, ETC. (Ch. 2 GOVERNMENT AND OFFICERS. 14. Tlie administration of county affairs is committed by laxr to an o£&cial body cbosen by tbe people, and invested vritb discretionary poTirer necessary for tbe efficient exercise of tbeir poTvers, functions, and duties; and by Tcrbatever name tbis body may be called, Avbetber supervisors or commissioners, board or court, it con- stitutes the county government. Sheriffs, coroners, clerks, and other so-called county officers are properly state officers for the county. Their functions and duties pertain chiefly to the alTairs of state in the county ; their duties are ministerial, and, though local officers, their duties are performed in the name of the state, and for the general wel- fare.®^ Certain county duties are connected with these offices which pertain to county affairs ; but they are usually ministerial only, and do not involve the control or management of county affairs, which necessarily require the exercise of discretionary power.®^ County Government — Of What Constituted. The county government, properly so called, is composed of a board of commissioners, a board of supervisors, or a county court, including the justices of the county, presided over by a chairman chosen by the body, or a county judge elected by the people.®* This body resembles a city council or board of alder- 61 BOARD OF COM'RS OF HAMILTON CO. v. MIGHELS, 7 Ohio St. 109; Tuthill v. City of New York, 29 Misc. Rep. 555, 61 N. Y. Supp. 968; Bouv. Law Diet, subject "Sheriffs"; Texas & P. Ry. Co. V. Walker, 93 Tex. 611, 57 S. W. 568. See, also, Bouldiu V. Lockhart. 3 Baxt. (Tenn.) 263; Braden v. Stumph, 16 Lea (Tenn.) 581; Dougherty Co. v. Kemp, 55 Ga. 252. 6 2 South V. Maryland, 18 How. (U. S.) 396, 15 L. Ed. 433; Bell V. Railroad Co., 4 Wall. (U. S.) 598, 18 L. Ed. 338; State v. Colt, 8 Ohio S. & C. P. Dec. 62. 63 Elliott, Mun. Corp. § 5; Kankakee Co. v. .^Btna Life Ina Co., 106 U. S. 668, 2 Sup. Ct. 80, 27 L. Ed. 309; Moultrie Co. v. Rocking- ham Sav. Bank, 92 U. S. 631, 23 L. Ed. 631; Shanklin v. Madison Co., 21 Ohio St. 575. § 15) POWERS OF COUNTY GOVERNMENT. 39 men in a municipality, and in some particulars also a board of directors in a private corporation.** It directs, manages, and controls the county affairs, and is vested with all necessary power and discretion for so doing.®^ These affairs are ex- clusively public, but are such as pertain peculiarly to local in- terest and welfare of the county, and affect the county revenues and treasury. In all such affairs this body governs and con- trols, and is therefore properly called the county government.*® POWERS OF COUNTY GOVERNMENT. 15* Tbe county government has only such poirers as are ex- pressly conferred by statute, or necessarily implied therefrom. Chief among these is the power to contract in the name of the county, and for its benefit.*'' Without this power no business can be wisely transacted. The county board or court is general agent and trustee for the county in all its affairs.*® It must have general supervision and management of all county affairs, but must necessarily intrust matters o,f detail to individual at- tention and personal supervision of its agents. As a general rule, a contract on behalf of the county must be made by the «* Pegram v. Cleaveland Co., 65 N. C. 114; Sterling v. Parish of West Feliciana, 26 La. Ann. 59. 8 5 Shanklin v. Madison Co., 21 Otiio St. 575; State v. Ormsby Co., 7 Nev. 392; Slieboygan Co. v. Parker, 3 Wall. (U. S.) 93, 18 L. Ed. 33; Ezell v. Giles Co., 3 Head (Tenn.) 586; L. & N. R. R. Co. v. Davidson Co., 1 Sneed (Tenn.) 639, 62 Am. Dec. 424; Bridgenor v. Rodgers, 1 Cold. (Tenn.) 261. 86 Boone, Corp. § 316; Stewart v. Roberts, 1 Yerg. (Tenn.) 389; Maury Co. v. County, 1 Swan (Tenn.) 239. 87 Hopkins v. Clayton Co., 32 Iowa, 15; Ellis v. Washoe Co., 7 Nev. 291; Montgomery Co. v. Barber, 45 Ala. 237; Babcock v. Goodrich, 47 Cal. 488; Highland County Com'rs v. Rhoades, 26 Ohio St. 411. 88 Andrews v. Pratt, 44 Cal. 309; Board of Sup'rs of Richmond Co. V. Wandel, 6 Lans. (N. Y.) 33; Board of Com'rs of Bladen Coxrnty T. Clarke, 73 N. C. 255. 40 QUASI CORPORATIONS — COUNTIES, ETC. (Cll. 2 body in lawful session.*"* In such case, of course, the memo- randum of the contract is written on the minutes ; but it may also contract by parol through its agents in small matters.''" An unauthorized contract, if within the scope of the county powers, may be made binding by ratification;^^ but contracts made beyond the scope of the lawful powers of the county are subject to the general doctrine of ultra vires.^" «» Clarke v. Lyon Co., 7 Nev. 75; Talbott v. Iberville Parish, 24 La. Ann. 135; Mitchell v. Com'rs, 18 Kan. 188. 70 Ring V. Johnson Co., 6 Iowa, 265; Montgomery Co. v. Barber, 45 Ala. 237; Hopkins v. Clayton Co., 32 Iowa, 15; Babcock v. Good- rich, 47 Cal. 488; Ellis v. Washoe County, 7 Nev. 291; Highland County Com'rs v. Khoades, 20 Ohio St. 411; Beck v. Puckett, 2 Tenn. Cas. 490. 71 Hawk V. Marion Co., 48 Iowa, 472; Talbott v. Iberville Parish, 24 La. Ann. 135; Clarke v. Lyon Co., 7 Nev. 75; Mitchell v. Com- missioners, IS Kan. 188. But ratification cannot validate acts void for want of power. Wallace v. Tipton, 3 Tenn. Cas. 542; Colburn V. Railroad, 94 Tenn. 43, 28 S. W. 298. 7 2 King V. Mahaska Co., 75 Iowa, 329, 39 N. W. 636. A contract by county authorities for building a courthouse provided that changes thereafter made in the plan, increasing or lessening the cost, should be followed by like changes in the amount to be paid for the build- ing, which was the full sum authorized by vote of the people under a law requiring the question to be submitted to them. It was held that changes imposing liability for more than the sum voted were void. See, also, Burnett v. Maloney, 97 Tenn. 712, 37 S. W. 689, 34 L. R. A. 541; CLAIBORNE CO. v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470. An agreement between the board of commissioners of a county and an attorney, whereby, in return for services in aiding the state's attorney to collect taxes against railroad lands, he is to receive 25 per cent, of any amount recovered, either in money or lauds, out of which one-fifth is to be paid the state's attorney, was held ultra vires as to the commissioners, and void. Storey v. Murphy, 9 N. D. 115, 81 N. W. 23. In Grannis v. Board of Com'rs of Blue Earth Co., 81 Minn. 55, 83 N. W. 495, an agreement between the commissioners and an at- torney, under which the attorney was to unearth and bring to light personal property in the county which had not been assessed or taxed for a number of years, in consideration of which service the § 16) POWERS OF COUNTY GOVERNMENT. 41 POTVERS OF COUNTY GOVERNMENT (Continned). 16. In the exercise of lawful discretion the county board or court may — (a) Employ attorneys. (b) Purchase, hold, and sell real estate. (c) Contract for the construction and furnishing of county buildings. (d) Provide for the support of the poor, and the mainte- nance of county schools. (e) And, generally, contract for any object xiTithin the scope of the duties and povirers of the county. In varying but appropriate language the statutes of the states have conferred upon these county governing bodies the power to do such acts as are necessary for the management of the county affairs. This is a general expression covering the im- plied powers of a corporation, and is probably not essential to clothe the county government with such powers. Having the power to sue and be sued, the county, of course, must be represented by counsel. It has therefore been adjudged in numerous cases that the county government has power in its discretion to employ an attorney to represent and act for the county in its litigation, actual or prospective;^^ and it may exercise this power even in cases which the law provides shall be prosecuted by the state's attorney.'^* But this employment board of commissioners agreed by resolution to pay him a compensa- tion equal to one-half of all taxes paid into the county treasury as the result of his labors, was held to be void, as being ultra vires. See, also, Municipal Security Co. v. Baker Co., 39 Or. 396, 65 Pac. 369. But see American Stave & Cooperage Co. v. Butler Co. (C. C.) 93 Fed 301. 7 3 Lassen County v. Shinn, 88 Cal. 510, 26 Pac. 365; Sterling Gas Co. V. Higby, 134 111. 557, 25 N. E. 660; Ottawa Gaslight & Coke Co. V. People, 138 111. 336, 27 N. E. 924; Franklin Co. v. Layman, 34 111. App. 606; Tatlock v. Louisa Co., 46 Iowa, 138; Bevington v. Woodbury Co., 107 Iowa, 424, 78 N. W. 222; Duluth S. S. & A. R. Co. V. Douglass Co., 103 Wis. 75, 79 N. W. 34. T4 Jordan v. Osceola Co., 59 Iowa, 389, 13 N. W. 344; Taylor Co. 42 QUASI CORPORATIONS COUNTIES, KTC. (Ch. 2 is not binding beyond the term of office of the board making the contract* Buying, Holding, and Selling Real Estate by County. In the due discharge of its public functions it is necessary for the county to have real estate on which to erect county buildings, such as courthouses, jails, workhouses, reformatories, and the like. The county court or board, therefore, has power to purchase and hold sufficient real estate on which to erect all necessary public buildings; and, where the support of the poor devolves upon the county, it may also purchase a farm therefor. ''* The courthouse and jail must, of course, be located at the county seat ; but the location of the other buildings, and the situation of the other county real estate, rest in the discre- tion of the governing body of the county.'''' So, also, the amount of real estate necessary for each one of these purposes, and the sum to be paid therefor, lies in the discretion of the county board or court. ''^ In case the county should contract to purchase land for other than public purposes, or to purchase an unreasonable quantity for public purposes, such purchase V. Standley, 79 Iowa, 666, 44 N. W. 911; Sterling Gas Co. v. Higby, 134 111. 557, 25 N. E. 660. 7 5 Board of Com'rs of Jay Co. v. Taylor, 123 Ind. 148, 23 N. E. 752, 7 L. R. A. 160; Vacheron v. City of New York, 34 Misc. Rep. 420, 69 N. Y. Supp. 608. 7 6Holten V. Lake Co., 55 Ind. 194, wherein the county commis- sioners were held to have a prima facie right to purchase land for a home for the county poor. As to power of commissioners of the county to lease premises or rent rooms for county purposes, see Norfolk County Sup'rs v. Cox, 98 Va. 270, 36 S. E. 380; Gardner v. Dakota Co., 21 Minn. 33. But see Ford v. Mayor, etc., 4 Hun (N. Y.) 587 ; Stewart v. Otoe Co., 2 Neb. 177 ; Thayer v. McGee, 20 Mich. 195. As to employment of a physician for care of the county poor, see Mor- gan County Com'rs v. Holman, 84 Ind. 256 ; Board of Com'rs of Perry County V. Lamax (Ind. App.) 31 N. E. 584. 7 7 Board of Sup'rs of Culpeper County v. Gorrell, '20 Grat. (Va.) 484; Allen v. Lytle, 114 Ga 275, 40 S. E. 238. 7 8 Sheidley v. Lynch, 95 Mo. 487, 8 S. W. 434; Lyman v. Gedney, 114 111. 388, 29 N. E. 282, 55 Am. Rep. 871. § 16) POWERS OF COUNTY GOVERNMENT. 43 might be enjoined at the suit of the taxpayers as ultra vires, the county authorities having power to purchase only for public uses, and then only so much as is reasonably necessary.''* Whenever it is necessary the county may also buy in real estate at execution, foreclosure, or tax sale, for the purpose of saving debts due to it.^° Property so purchased, unless redeemed, may be sold and transferred by the county, and a good title thereby conveyed.®^ This power is implied in favor of coun- ties equally with other corporations, and for the same reasons.^^ A county may likewise receive and hold property conveyed to it, T9 Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070; Colorado Paving Co. v. Murphy, 78 Fed. 30, 23 C. C. A. 631, 37 L. R. A. 630; Davenport v. Buffington, 97 Fed. 237, 38 C. C. A. 453, 46 L. R. A. 377; Burnett v. Abbott, 51 Ind. 254. See, also, Grannis v. Blue Earth County Com'rs, 81 Minn. 55, 83 N. W. 495; Wells v. Super- visors, 102 U. S. 625, 26 L. Ed. 122; Warren County Agricultural Joint Stock Co. v. Barr, 55 Ind. 30; Rothrock v. Carr, 55 Ind. 334; Hooper v. Ely, 46 Mo. 505. As to the purchase of property at an ex- cessive valuation, see State v. Board of Chosen Freeholders, 53 N. J. Law, 531, 22 Atl. 343. An injunction will also lie to restrain the payment of public money for a purpose wherein the commissioners are being misled or defrauded: State v. Cuyahoga Co., 9 Ohio S. & C. P. Dec. 76. But in Scalf v. Collins County, 80 Tex. 514, 16 S. W. 314, an attempt was made to have a conveyance of a home- stead to the county set aside on the ground that it was not needed for county buildings or other county purposes. The conveyance was held good. 80 Cardwell v. Hargis, 24 Ky. Law Rep. 1406, 71 S. W. 488; Shep- ard v. Murray County, 33 Minn. 519, 24 N. W. 291; Audubon Co. v. County, 40 Iowa, 460. 81 Shannon v. O'Boyle, 51 Ind. 565. "All civil corporations, * * * unless expressly restrained by the act which establishes them, or by some subsequent act, have, and always have had, an unlimited control over their respective properties, and may alienate in fee, or make what estates they please, for years, for life, or in tail, as fully as any individual may do with respect to his own property." 1 Kyd, Corp. 108. 82 Clark, Priv. Corp. pp. 142-144; Page Co. v. County, 41 Iowa, 115; Linville v. Bohannan, 60 Mo. 554. 44 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 2 either by deed or devise in trust, for any public use within the scope of its powers. ^^ Construction of County Buildings. The county board or court has likewise authority to contract for the construction of necessary county buildings and the fur- nishing thereof; and in the absence of statute directing the mode of contracting, as by plans, specifications, and competitive bidding, the method of negotiations and contracting is in the discretion of the governing body; and it has been held even, where the statute provides the method of negotiations and con- tracting, that the county board may in emergency depart from the statutory method.** The county board or court cannot delegate this power to contract for a public building to any other person or number of persons.*^ Actions upon claims for extras, swelling the price beyond the contract limit, have been repeatedly sustained in Indiana ; ®* and in Dakota it has been 88 Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. In Jackson v. Hartwell, 8 Johns. (N. Y.) 422, it was decided that, while the supervisors of a county, who were made by statute a corporation for special purposes, might take by grant a parcel of land in trust that they might erect a courthouse and jail, these being county pur- poses, they could not be seised as trustees for the use of an individ- ual, or in trust for building a church or schoolhouse for the use of the inhabitants of a particular town in the county. See 1 Dill. Mun. Corp. (4th Ed.) §§ 5G7-574. «* Board of Com'rs of Harrison County v. Byrne, 67 Ind. 21, where the contractor had abandoned the construction of the county building, and the county commissioners were held to have the power to take up and finish the work witliout change of plans or specifica- tions or the letting of a new contract. See, also, Board of Com'rs of Clinton County v. Hill, 122 Ind. 215, 23 N. E. 779. 8 5 Russell V. Cage, 66 Tex. 428, 1 S. W. 270. Contra, Beck v. Puck- ett, 2 Tenn. Cas. 490, in which the general statement is made that the county court may delegate to a committee its power to make a binding contract pertaining to any matter in which the court might bind the county. 86 Commissioners of Gibson County v. Steam Heating Co., 128 Ind. 240. 27 N. E. 612, 12 L. R. A. 502; Same v. Steel Co., 123 Ind. 364, 24 N. B. 115. § 16) POWERS OF COUNTY GOVERNMENT. 45 decided that taxpayers of the county cannot enjoin the issuance of warrants in payment of work done in the erection of a court- house under an unauthorized contract.®^ In the absence of statutory provision, the same general rules control contracts for the erection of any other necessary public buildings by the county.** Poor, Support of — Schools. In many states the support of the poor is a town or township charge; but in the majority of them this duty is devolved upon the county. In these latter states the county authorities, in addition to purchasing land for a poorhouse and erecting the same, have power to contract for the necessary expense for the support of the poor, including food, clothing, and medical at- tention.^® In some cases necessaries have been provided in emergency without contract with the proper authority, but the person claiming compensation therefor must prove the neces- sity.*" So, also, where schools of any kind are a county charge, it is competent for the county board to contract for the erec- 87 Wood V. Bangs, 1 Dak. 179, 46 N. W. 586. See, also, Ferriss V. Williamson, 8 Baxt. (Tenn.) 424. 88 McDonough County v. Thomas, 84 111. App. 408; Bradford County V. Horton, 6 Lack. Leg. N. (Pa.) 306; Stuart v. Easton, 170 U. S. 383, 18 Sup. Ct. 650, 42 L. Ed. 1078. See, also, CLAIBORNE COUNTY V. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470; Nelson v. Carter County, 1 Cold. (Tenn.) 208; and Ross v. Ander- son County, 8 Baxt. (Tenn.) 249, wherein it "svas held that the coimty cannot issue commercial paper. 89 King V. Sullivan County, 8 Baxt. (Tenn.) 329; Board of Com'rs of Morgan County v. Seaton, 90 Ind. 158; Board of Com'rs of Perry Coimty V. Lamax, (Ind. App.) 31 N. E. 584; Morgan County v. Seaton, 122 Ind. 521, 24 N. E. 213; Board of Com'rs of Orange County V. Bitter, 90 Ind. 362; Smith v. Commissioners, 21 Kan. 669. 90 "The function of administering public charities is governmental, and township trustees are agents of the county for that purpose. This agency is created and defined by law, and consequently is of such a character that all are bound to take notice of its scope and limitations. Commissioners of Warren County v. Osburn, 4 Ind. App. 590, 31 N. E. 541. 46 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 2 tion of necessary buildings, and for incurring other expenses necessary for the conduct of the schools.**^ Other Purposes. Other functions are also devolved upon the county in several of the states, such as the care of roads, bridges, ferries, and other public concerns. For the necessary construction, main- tenance, and repair of these utilities, it is competent for the county authorities to enter into contracts and incur liability on behalf of the county."^ In general, it may be said that, wherever the county is endowed with a function or charged with a duty, the county authorities may make contracts, in their discretion, for the performance of such functions and discharge of such duties, to the end that the public weal and convenience may not suffer;'* but all such contracts must be »i Nashville & C. & St. L. R. Co. v. Franklin County, 5 Lea (Tenn.) 707; Shelby County v. Exposition Co., 96 Tenn. 659, 36 S. W. 694, 33 L. R. A. 717; McCallie v. Mayor, 3 Head (Tenn.) 318; Luttrell V. Knox County, 89 Tenn. 253, 14 S. W. 802. The general statutes of Maryland provided that, where the state school fund was insuffi- cient in any county, it was incumbent upon the county commission- ers, on demand of the school board, to levy a pro rata tax not ex- ceeding a certain amount on each $100 for school purposes; and a special local statute provided that in Anne Arundel county there might be an additional levy, not exceeding a certain rate, for the purposes of a separate fund, both to be applied by the treasurer for school expenses. It was held that the county commissioners must apply the gross amount of tax levied to the school commissioners, and deductions for any other purpose, either as commissions or ex- penses of gathering the tax, could not be made. Board School Com'rs of Anne Arundel County v. Gantt 73 Md. 521, 21 Atl. 548. 92 Nashville & C. & St. L. R. Co. v. Franklin County, 5 Lea (Tenn.) 707; Luttrell v. Knox County, 89 Tenn. 253, 14 S. W. 802; Beck v. Puckett, 2 Tenn. Cas. 490; Shelby County v. Exposition Co., 96 Tenn. 666, 36 S. W. 694, 33 L. R. A. 717. See, also, Binseidler v. Whitman County, 22 Wash. 388, 60 Pac. 1122, and for powers of county over roads, Ledbetter v. Turnpike Co., 110 Tenn. 92, 73 S. W. 117. 93 Kelly V. Multnomah County, 18 Or. 356, 22 Pac. 1110. In which the county was held liable for the cost of blankets furnished by § 16) POWERS OF COUNTY GOVERNMENT. 47 within the method and Hmits prescribed by statute, otherwise they are subject to be impeached as ultra vires acts.®* But by all lawful contracts by the county board or court, within the scope of their authority, and for all emergent necessaries for public uses supplied to the county and received by proper of- ficers, a valid obligation is laid upon the county, which may be enforced by appropriate proceeding, and for the breach of which there is a remedy by action at law.®* the keeper of prisoners confined under criminal process In Its jail, the statute making it the duty of the keeper to furnish and keep clean necessary bedding for such prisoners, and providing for the charges of safe-keeping and maintaining such prisoners to be paid from the county treasury. But see Warren County Agricultural Joint Stock Co. v. Barr, 55 Ind. 30; Wells v. Supervisors, 102 U. S. G25, 26 L. Ed. 122; Flagg v. Parish, 27 La. Ann. 319; POLICE JURY OF PARISH OF TENSAS v. BRITTON, 15 Wall. 566, 21 L. Ed. 251; Commonwealth v. Commissioners, 2 Serg. & R. (Pa.) 193; Jackson County V. Rendleman, 100 111. 379, 39 Am. Rep. 44; Henry v. Cohen, 66 Ala. 382; Lewis v. Freeholders, 37 N. J. Law, 254. 84 The county possesses no powers except such as are conferred expressly or by necessary implication, and these are strictly con- strued. Burnett v. Maloney, 97 Tenn. 712, 37 S. W. 689, 34 L. R. A. 541; CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470; State v. Puckett, 7 Lea (Tenn.) 709; Colburu V. Railroad Co., 94 Tenn. 43, 28 S. W. 298; Louisville & N. R. Co. V. County Court, 1 Sneed (Tenn.) 637, 62 Am. Dec. 424. 85 Gibson County v. Rains, 11 Lea (Tenn.) 20; Taylor v. Mayor, 82 N. Y. 10; Adams v. Tyler, 121 Mass. 380; Commissioners of Roads and Revenues v. Hurd, 49 Ga. 462, 15 Am. Rep. 682. See People v. Supervisors, 50 111. 213; Murphy v. Commissioners, 14 Minn. 67 (Gil. 51); Klein v. Supervisors, 51 Miss. 878. As to when mandamus Is a proper remedy, see Commissioners' Court v. Moore, 53 Ala. 25. 48 QUASI COKFOKATIONS — COUNTIES, ETC. (Ch. 2 TORTS. 17. A county, in the exercise of tlie governmental functions delegated to it by the state, is not liable for corporate neglect, nor for the misfeasance or negligence of its officers or agents. As we have already seen,^® counties are but subdivisions of the state, erected solely for the exercise of governmental au- thority; and it would be as proper to hold the state as the county liable for the wrongful acts of its officers.''' But the sovereign is not liable to action by the citizen unless it chooses to make itself so. Unless, therefore, the state gives a right of action by statute against a county for the nonfeasance or mis- feasance of its officers, no such action can be brought.'* "No suit can be maintained against the county upon the principle of respondeat superior, because the relation of master and servant does not exist. County officers are quasi public officers of the state." »» POWER OF EMINENT DOMAIN. 18. Counties may exercise the sovereign j^ovreT of eminent do- main in taking property for public use, Midtliout the consent of the owner, on making due compensation therefor. The power of eminent domain has been declared by the courts to be "a. necessary and inherent attribute of sovereignty in the state, which does not depend upon constitutional pro- se Ante, § 10. 87 Wood V. Tipton County, 7 Baxt. (Tenn.) 112, 32 Am. Rep. 561; Nashville & K. R. Co. t. Wilson County, 89 Tenn. 597, 15 S. W. 446; Hawkins v. Justices, 12 Lea (Tenn.) 356; Hollenbeck v. Winnebago County, 95 111. 151, 35 Am. Rep. 151. 98 Barbour County v. Horn, 48 Ala. 649; 1 Beach, Pub. Corp. pp. 744-746. 9 9 Fry V. Albemarle County, 86 Va. 195, 9 S. E. 1004, 19 Am. St Rep. 879. See, also, Dougherty County v. Kemp, 55 Ga. 252. § 18) POWEK OF EMINENT DOMAIN. 49 visions for its existence." ^°° The county, being an agency of the state to execute the sovereign will and administer public affairs in a part of its territory, must necessarily possess and exercise this power wherein it is charged with public duties. Thus it has been authorized to take private property for the purpose of making public highways, establishing ferries, tak- ing lands for public buildings, and other like works of pub- lic necessity.^"' Delegation. This sovereign power exists primarily, of course, in the leg- islature.^"^ But the legislature may ii. its discretion exercise this power through a public corporation.^"* This power is commonly delegated by statute, expressing the purposes for which it may be exercised, and the mode and manner of exer- 100 United States v. Jones, 109 U. S. 513, 3 Sup. Ct. 346, 27 L. Ed. 1015; People v. Mayor, 32 Barb. (N. Y.) 102; Raleigh & G. R. Co. V. Davis, 19 N. C. 451; Noll v. Railroad Co., 32 Iowa, 66- Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389. For the distinction between eminent domain and police power, see City of Philadelphia v. Scott, 81 Pa. 80, 22 Am. Rep. 738; Hiue v. New Haven, 40 Conn. 478; Inhabitants of Watertown v. Mayo, 109 Mass. 315. 12 Am. Rep. 694; King v. Davenport, 98 111. 30.3, 38 Am. Rep. 89; Vauderbilt v. Adams, 7 Cow. (N. Y.) 349. See, also, Lewis, Em. Dom. §§ 1, 8. 101 Reeves v. Wood County, 8 Ohio St. 333; Inhabitants of Way- land V. Commissioners, 4 Gray (Mass.) 500; Culpeper County Sup'rs V. Gorrell, 20 Grat. (Va.) 484. 102 Beekman v. Railroad Co., 3 Paige (N. Y.) 45, 22 Am. Dec. 679; Tide-Water Co. v. Coster, 18 N. J. Eq. 518, 90 Am. Dec. 634; De Varaigue v. Fox, 2 Blatchf. (U. S.) 95, Fed. Cas. No. 3,836. But see In re New York Cent. R. Co., 66 N. Y. 407. 103 Mercer v. Railroad Co., 36 Pa. 99; Weir v. Railroad Co., 18 Minn. 155 (Gil. 139); WEST RIVER BRIDGE CO. v. DIX. 6 How. (U. S.) 507, 12 L. Ed. 535; Harbeck v. Toledo, 11 Ohio St. 219; East- ern R. Co. V. Railroad Co., Ill Mass. 125, 15 Am. Rep. 13; Patterson v. Boom Co., 3 Dill. (U. S.) 4G.5, Fed. Cas. No. 10,829; City of East St. Louis V. St. .John. 47 111. 463: Barrington v. Ferry Co.. 69 N. C. 165; Reddall v. Bryan, 14 Md. 444, 74 Am. Rep. 550; Johnson v. Water Works Co., 67 Barb. 415. ING.CORP. — 4 50 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 2 cising it, which statute may be either special or general.^"* But where the county is charged with the performance of public duties, and invested with general powers of performance of acts necessary therefor, the right to acquire land by eminent domain has been held to be an incidental power necessarily im- plied therefrom.^°^ But such power will be implied only for obvious public purposes, and in cases of plain necessity.^*** POI.ICE POWER. 19. In many states, counties, as important agencies for the public welfare, are clothed vrith a limited measure of police po\irer for the public health and safety of the locality. The police power may justly be regarded in America as the supreme exercise of sovereignty. Under it the government may, for the protection of the public, summarily destroy private property without compensation, and with impunity.^**^ .This power is inherent in the state, and may be delegated to public corporations.^*'^ It is usually exercised by state officials, or delegated to municipalities, where dense population requires its most frequent exercise. But county governments are often 104 Buffalo & N. Y. C. R. Co. v. Brainard, 9 N. Y. 100. lOB Culpeper County Sup'rs v. Gorrell, 20 Grat. (Va.) 484. 106 1 Beach. Pub. Corp. § 665 ; Boone, Corp. §§ 92, 93. 107 "The destruction of infected trees by order of a public official, after due inspection, is a remedy which, however severe, is ap- propriate to the end in view, and may properly be enforced with- out any preliminary judicial inquiry, as well as without any compen- sation to the owner for resulting loss." Baldwin, J., in STATE v. MAINE, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St Rep. 30; Bissell v. Davison, 65 Conn. 183, 32 Atl. 348, 29 L. R. A. 251; Powell V. Pennsylvania. 127 U. S. 678, 8 Sup. Ct. 992, 32 L. Ed. 253; Dunbar v. Augusta, 90 Ga. 390, 17 S. E. 907; McDonald v. Red Wing, 18 Minn. 38 (Gil. 25); Cooley, Const. Lim. (4th Ed.) 746; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. 108 Baumgartner v. Hasty, 100 Ind. .575, 50 Am. Rep. 880; King v. Davenport. 98 III. 305, 38 Am. liep. 89; Pratt v. Litchfield, 62 Conn. 112, 25 Atl. 461. § 19) POLICE POWER. 51 clothed by express statute with police power to protect the pub- lic health and private property. In cities this power extends to a variety of objects, including the regulation of occupations and amusements, of wharves and markets, and other lawful business, the prohibition of liquor shops and houses of ill fame, and the prevention of fires, and generally the abatement of nuisances.^"' Limited Scope. The power is conferred upon counties usually for the purpose of preventing the spread of contagious and infectious diseases, either among people or cattle, thereby preserving the public health and the property of the locality ; and where granted by valid statute, there can be no doubt of the lawful possession of the power by the county.^^*^ Contrary opinions have been ex- pressed by the courts of different states as to the power of the legislature to devolve upon counties medical treatment of in- digent inebriates, such a statute being held valid in Maryland and void in Wisconsin.^^^ But there seems to be general as- sent to the doctrine that statutes are valid which are calculated to preserve the public health and prevent the spread of disease, which may destroy not only people, but also animals and vegeta- tion. In short, saving of life, whether animal or vegetable, is 109 MUNN V. ILLINOIS, 94 U. S. 113, 24 L. Ed. 77; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3; Ogden City v. McLaughlin, 5 Utah, 387, 16 Pac. 721; Odell v. Atlanta, 97 Ga. 670, 25 S. E. 173; Crowley v. Christen- sen, 137 U, S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; Robinson v. Mayor, 1 Humph. (Tenn.) 156, 34 Am. Dec. 625; Wartman v, Philadelphia, 33 Pa. 203. 110 City of Clinton v. Clinton County, 61 Iowa, 205. 16 N. W. 87; Hurst V. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. R. A. 484, 47 Am. St. Rep. 525. In California county commissioners are given power to license and regulate occupations. Los Angeles County v. Eikenberry, 131 Cal. 4()1, 63 Pac. 766. 111 City of Baltimore v. Institute, 81 Md. 106, 31 Atl. 437, 27 L. R. A. 647; Wisconsin Keeley Institute Co. v. Milwaukee County, 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105. The latter opinion is based upon the idea that this was not a public pur- pose nor a public act. 52 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 2 a lawful purpose of government; and the police power is ap- propriate and lawful whenever it preserves and protects the public against epidemic.^** "Counties are clothed, just as states and commonwealths are, with certain police powers which are not the creatures of legis- lation, and cannot wait upon legislation, but must be asserted just as the exigencies of the county demand, but always for public purposes, and within the scope and objects of their or- ganization." ^^' Such paramount police power can, of course, be implied in favor of a county only in case of great emergency, where the state has failed to provide adequate sanitary means for the public protection. In such exigencies the reasonable exercise of appropriate sanitary measures by the county authori- ties finds judicial approval in our courts.^^* Salus populi est suprema lex. 112 SLAUGHTER HOUSE CASES, 16 Wall. (U. S.) 36, 21 L. Ed. 394; Town of Greensboro v. Elirenreich, 80 Ala. 579, 60 Am. Rep. 130; City of St. Paul v. Byrnes, 38 Minn. 176, 36 N. W. 449; Belling V. Evansville, 144 Ind. 644, 42 N. E. 621, 35 D. R. A. 272; Markbam V. Brown, 37 Ga. 277, 92 Am. Dec. .J; Tbomas v. Mason, 39 W. Va. 526, 20 S. E. 580, 26 L. R. A. 727; Hale v. Houghton, 8 Mich. 458; State V. Wordin, 56 Conn. 216, 14 Atl. 801; Smith v. Nashville, 88 Tenn. 464, 12 S. W. 924, 7 L. R. A. 469. lis Beck V. Puckett, 2 Sb. Tenn. Cas. 496. 114 The act challenged in this case was a contract made by a coun- ty court with a private person to transcribe and rebind the registra- tion books of the county, which had been so charred and injured in a fire as to make this work indispensable to the consulting of the coimty records by the public. Sneed, J., in delivering the opinion of the court, sustaining the exercise of this power by the county officials, says: "The principle upon which these police powers are exercised is the safety and welfare of the people, a sort of jus excelsior, that cannot wait upon delay. 'Salus populi est suprema lex.' A necessity which Lord Coke says makes that lawful which seemeth unlawful. 8 Coke, 68. The law, says Sir Matthew Hale, of a particular time and place. Hale, P. C. 54. A necessity, says Hobart, that even overcomes the law, and defends what it compels. Hob. 144. In times of exigency, such powers have been exercised by public cor- porations from immemorial times, and are justified as the necessary incidents of corporate entity." § 20) COUNTY LIABILITIES. 68 CHAPTER m. QUASI CORPORATIONS (ContlntiedX 20. County Liabilities. 21. Contracts — Subject-Matter. 22. Forms of Contracts. 23. Borrowing INIoney. 24. County Bonds. 25. Fiscal Management. 26. Taxation. 27. Legislative Control. COUNTY LIABILITIES. 20. Counties, being involuntary civil divisions of the state, created as governmental agencies for purely public purposes, partake of the state's exemption from lia- bility, and can be sued only \7hen that immunity has been waived by the state for the county. The favorite maxim of the common law, that there is no wrong without its remedy, is not applicable to counties.^ By another maxim the sovereign was exempt from suit. And so with us the state can only be sued by its express consent ; and counties, being merely parts of the state, partake of that im- munity.^ The law exempting the sovereign, rather than the 1 Gallia County Com'rs v. Holcomb, 7 Obio, 232, pt 1; Fry v. Albemarle Co., 86 Va. 195, 9 S. E. 1004, 19 Am. St. Rep. 879; White V. Chowan Co., 90 N. C 439, 47 Am. Rep, 534; Brabham v. Hinds Co., 54 Miss. 363, 28 Am. Rep. 352; Monroe Co. v. Flynt, 80 Ga. 489, 6 S. E. 173; Schuyler Co. v. Mercer Co., 9 111. 20; WARD v. HARTFORD CO., 12 Conn. 404; Hunsaker v. Borden, 5 Cal. 288. 03 Am. Dec. 130; Lyell v. St. Clair Co., 3 McLean, 580, Fed. Cas. No. 8,621. 2 Watkins v. Walker Co., 18 Tex. 585, 70 Am. Dec. 298; Wood v. Tipton Co., 7 Baxt. (Tenn.) 112, .32 Am. Rep. 501; Bailey v. Law- rence Co., 5 S. D. 393, 59 N. W. 219. 40 Am. St. Rep. 881; Common- 54 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 3 law making the subject liable, is the fundamental law ap- plicable to counties.^ Hence, as we have seen,* the county is exempt from liability for the misfeasance or malfeasance of its officers, unless suit is expressly given by statute therefor. The same general rule prevails also in regard to contracts. Coun- ties, being created by statute, and receiving all their powers therefrom, are subject only to such liabilities as are imposed by statute with respect to their powers and functions.^ Possessing no powers except such as are conferred expressly or by neces- sary implication, their liabilities are strictly correlative. There is no liability resting upon the county, and no right of action wealth V. Huntingdon Co., 3 Rawle (Pa.) 487; Wolcott v. Lawrence Co., 26 Mo. 272; Raymond v. Stearns Co., 18 Minn. 60 (Gil. 40); Emerson v. Washington Co., 9 Me. 88; Heller v, Shawnee Co., 23 Kan. 128; James v. Conecuh Co., 79 Ala. 304; Brewster Co. v. Presidio Co., 19 Tex. Civ. App. 638, 48 S. W. 213. 3 BURNETT V. MALONEY, 97 Teun. 712, 37 S. W. 689, 34 L. R. A. 541; Harvey v. Tama. Co., 46 Iowa, 522; Moon v. Howard Co., 97 Ind. 176; Granger v. Pulaski Co., 26 Ark. 37; Madden v. Lan- caster Co., 65 Fed. 191, 12 C. C. A. 566; Eastman v. Clackamas Co. (C. C.) 32 Fed. 24; Ayers v. Thurston Co., 63 Neb. 96, 88 N. W. 178; Board of Com'rs of Greer Co. v, Watson, 7 Okl. 174, 54 Pac. 441. 4 Ante, § 17. BOARD OP JEFFERSON COUNTY SUP'RS v. ARRIGHI, 54 Miss. 668; Saline Co. v. Wilson, 61 Mo. 237; Braiuard v. Kings Co., 84 Hun, 290, 32 N. Y. Supp. 311; Davis v. Ontonagon Co., 64 Mich. 404, 31 N. W. 405; Morrison v. Decatur Co., 16 Ind. App. 317, 44 N. E. 65; Keller v. Hyde, 20 Cal. 594; Pacific Bridge Co. v. Clackamas Co. (C. C.) 45 Fed. 217. A county is not liable for dam- ages caused by the negligent construction of a ditch by its officers or agents, unless liability is expressly or by necessary implication imposed by statute. Floria v. Galveston Co. (Tex. Civ. App.) 55 S. W. 540. Nor for damages caused by a mob, though resulting from torts of its officers. See Board of Chosen Freeholders of Sussex Co. V. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530; MOWER v. LEICESTER, 9 Mass. 247, 6 Am. Dec. 63; Talbot County Com'rs V. Commissioners, 50 Md. 245 ; WARD v. HARTFORD CO., 12 Conn. 404 ; Soper v. Henry Co., 26 Iowa, 264. Also Crause v. Harris Co., 18 Tex. Civ, App. 375, 44 S. W. 616. § 20) CODNTF LIABILITIES. 55 against it, except by statutory expression or necessary implica- tion ; ® and, with regard to this HabiHty and action based upon statute, the tendency of the court is to apply the rules of strict construction, '^ Strict Construction. This rule and practice of courts is the key of numerous de- cisions against the validity of claims against counties. Their dominant tone is the protection of the public, and this is lowered only by some prevailing equity. It pervades decisions on all .classes of county claims, including bonds as well as warrants and accounts. The maxims of the law of agency are rigidly applied. The public is the principal, speaking through the legislature, restrained only by constitutional limitations. The county is the agent of the state, solely for public purposes.* The statute is the power of attorney or letter of authority — in some instances the note of instructions. This is public, and « Wiegel V. Pulaski Co., 61 Ark. 74, 32 S. W. 116; Lancaster Co. V. Fulton, 128 Pa. 48, 18 Atl. 384, 5 L. R. A. 436; Borough of Hender- son V. Sibley Co., 28 Minn. 515, 11 N. W. 91; Allegheny Co. v. Par- rish, 93 Va. 615, 25 S. E. 882; Byrne v. East Carroll Parish, 45 La. Ann. 392, 12 South. 521; Lebcher v. Custer Co., 9 Mont. 315, 23 Pac. 713; Board of Cass County Com'rs v. Ross, 46 Ind. 404; Floria v. Galveston Co. (Tex. Civ. App.) 55 S. W. 545. Counties have been invested with express powers only of limited extent, and in all other matters, including the conservation of high- ways and bridges, being mere divisions organized for the convenient exercise of portions of the political power of the state, are not liable for injuries suffered through their agents in discharging their duties, unless expressly made liable by statute. Markey v. Queens Co., 154 N. Y. 675, 49 N. E. 71, 39 L. R. A. 46. See, also, as to county lia- bility for defective bridge. Board of Com'rs of .Jasper Co. v. Allman, 142 Ind. 573, 42 N. E. 20G, 39 L. R. A. 58; Montgomery County Com'rs V. CotTenberry, 14 Ind. App. 701, 42 N. E. 491. 7 Richardson v. Grant Co. (C. C.) 27 Fed. 495; Hight v. Monroe Co., 68 Ind. 575; STEINES v. FRANKLIN CO.. 48 Mo. 167, 8 Am. Rep. 87; State v. Commissioners. 11 Ohio St. 183. 8 Savage v. Bangor, 40 Me. 176, 63 Am. Dec. 658; Browning v. Springfield, 17 111. 143, 63 Am. Dec. 345; Highway Com'rs of Niles Tp. V. Martin, 4 Mich. 557, 69 Am. Dec. 333; Lorillard v. Town, 11 56 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 3 every one dealing with the county must take notice of its terms and provisions. It is the only warrant of authority to the aigent. Outside of it the county has no power to bind the pub- lic. The county officials or boards can act as agents only with- in its limits. Beyond these their agency ceases, and. their acts and contracts are void.' Whoever recognizes their assump- tions and pretensions of public agency outside of the statutes, and there seeks by contract with them to bind the public to ob- ligations and expose it to liability, does so at his own peril. The courts protect the public against such efforts by a strict construction of the law. The decisions are far from harmoni- ous in all particulars, and some of them seem to ignore this cardinal doctrine and underlying theory in the results attained. But none of the courts have avowed a conflicting rule of de- cision, and the relation of public agency and the rule of strict construction must be regarded as the settled law of the land with regard to the contractual liability of counties.^" N. Y. 392, 62 Am. Dec. 120; EASTMAN v. MEREDITH, 36 N. H. 284, 72 Am. Dec. 302. "A county is but an agent of the state, and therefore not liable for interest under general provisions of a statute for payment of interest, but only where it contracts for interest, or is required by a statute to pay the same." Seton v. Hoyt, 34 Or. 266, 55 Pac. 967, 75 Am. St. Rep. 641, 43 L. R. A. 634. It was held in the case of Commissioners of Buncombe Co. v. Payne, 123 N. C. 432, 31 S. E. 711, that the payment of interest on the bonds of a county does not estop the county to deny their validi- ty. See, also, Hughes v. Monroe Co., 79 Hun, 120, 29 N. Y. Supp. 495. » Board of Orange County Com'rs v. Ritter, 90 Ind. 362; Smith v. Barrow Co., 44 Wis. 686; Stamp v. Cass Co., 47 Mich. 330, 11 N, W. 183; Dennison v. St. Louis Co., 33 Mo. 168. One contracting with county commissioners is charged with knowl- edge of the limits of their authority. Lebcher v. Commissioners, 9 Mont. 315, 23 Pac. 713. 10 NORTON V. SHELBY CO., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; Hill V. Memphis. 134 U. S. 198, 10 Sup. Ct. 562, 33 L. Ed. 887; Rayburn v. Davis, 2 111. App. 548; Murphy v. Napa Co., 20 Cal. 497; Richardson v. Grant Co. (C. C.) 27 Fed. 495; Board of § 21) CONTRACTS — SUBJECT-MATTER. 57 CONTRACTS— SUBJECT-MATTER. 21. To create contractual obligation on the part of tlie coun- ty, and render it legally liable for indebtedness of any kind, the follo\iring elements are usually declared by tbe courts as essential requisites: (1) There must be a valid statute or statutes empo^irering the county to contract in regard to the subject-matter of the undertaking. (2) The contract must be confined within the limitations of this statutory authority udth reference both to the public objects included in it, and the amount of con- sideration to be paid therefor. (3) Any condition precedent involving popular consent or approval must be strictly performed or complied xrith. (,4s) The contract must be made on the part of the county by the board or of&cers thereunto appointed by la\7, and substantially in the mode prescribed by the stat- ute. The source of contractual powers in a county may be found either in the state Constitution, or in general statutes, or in special laws. When not expressly conferred by these or any of them, authority is often held to exist under the doctrine of implied powers.^^ But cases are rare in which such implica- tion is made by the courts in regard to subject-matter. If this cannot be found expressed in special law, or designated in some enumeration of powers, or included within the scope of a gen- Shawnee County Com'rs v. Carter, 2 Kan. 115. In two Illinois cases It has been declared by the Supreme Court of that state that it will not imply power in a county to donate money or land to a railroad company from a grant of power to it to subscribe for stock in such company. Choisser v. People, 140 111. 21, 29 N. E. 546; Sampson v. People, 140 111. 4GG, 30 N. E. (JSO. A county has no power to execute a deed with covenants of warranty, no statute conferring such power, and it cannot be implied. Harrison v. Palo Alto Co., 104 Iowa, 383, 73 N. W. 872. n Woods V. Madison Co., 136 N. Y. 411, 32 N. E. 1011; Salt Lakf Co. V. Golding, 2 Utah, 319; Levy Court v. Coroner, 2 Wall. (U. S., 501, 17 L. Ed. 851; Grant Co. v. Lake Co., 17 Or. 453, 21 Pac. 447- 58 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 3 eral grant of authority to counties, then the contract is be3'ond the scope of^the county's agency, and is therefore void.^^ In these cases the courts apply the maxim, "Expressio unius ex- clusio alterius," and, in favor of the pubHc, presume against the threatened liabiHty. Limitations as to Objects and Amount. In determining the vaHdity of claims against it, the next question for consideration is whether the county has confined its contract to objects appropriate to the subject-matter, and to the amount authorized to be expended for that purpose. Ordi- narily counties may not incur an annual indebtedness in excess of annual revenue. Public contracts require appropriations, and appropriations require public funds, and the annual expense of the county under general laws must be limited to the annual resources. When special expenditures are to be made for extraordinary purposes, they must be provided for either by an additional tax levy, or by authorized corporate indebtedness, usually in the form of bonds. The amount of this indebt- edness is generally fixed in the statute, and this is the limit of the authority of the county. Any contract binding the county to a greater expenditure is void, either in whole, or as to the excess above the statutory limit. ^^ The latter ruling has been 12 Cooley, Const. Lim. (6th Ed.) p. 461; Dill. Mun. Corp. § 457. MARSH V. FULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Driftwood Val. Turnpike Co. v. Bartliolomew Co., 72 Ind. 22(5; Maupin v. Franklin Co., 67 Mo. 327; Clark v. Polk Co., 19 Iowa, 24S; Estep V. Keokuk Co., 18 Iowa, 199 ; Board of Tippecanoe County Com'rs V. Cox, 6 Ind. 403; Nashville v. Sutherland, 92 Tenn. 335, 21 S. W. 674, 19 L. R. A. 619, 36 Am. St. Rep. 88; Pugh v. Little Rock, 35 Ark. 75; Cowdrey v. Caneadea (C. C.) 16 Fed. 532; City of Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118. 13 King V. Mahaska, 75 Iowa, 329, 39 N. W. G36; DIXON CO. v. FIELD, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 3G0; DAVIESS CO. v. DICKINSON. 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026; Lake Co. V. Graham, 130 U. S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065. A county by receiving benefits, is not estopped to assert the invalidity of warrants issued in excess of the constitutional limit of indebted- ness. Municipal Security Co. v. Baker Co., 39 Or. 396, 65 Pac. 369, § 21) CONTRACTS — SUBJECT-MATTER. 59 made in some cases where the contract was severable. So, also, the contract may embrace with lawful subject-matter other ob- jects not included in the statutory authority, in which case the contract will be void as to all matters dehors the statute ; and, unless they are severable from the valid portion of the contract, it will be entirely void.^* Extraordinary Expenditures — Popular Assent Thereto. Extraordinary expenditures, such as the removal of a county seat, involving the construction of new county buildings, the erection of some large public improvement by the county, and especially the subscription of a county subsidy to promote the construction or completion of a railroad, canal, or other public work undertaken by private companies, are rarely, if ever, per- mitted without popular consent expressed at the ballot box. Full and strict compliance with such a condition precedent is a sine qua non to a valid contract upon this subject. The pub- lic election must be duly held at the prescribed time throughout the county by the proper officers, and lawful return made, show- ing the statutory majority required, before the county officers are authorized to bind the county to any expenditure upon the subject. ^^ The courts evince no disposition to liberalize the rules of strict construction in this particular. The rule is so inflexible in such case that no tax can be imposed or liability incurred without the consent of the taxpayers. If the legisla- ture requires this as a condition precedent to a contract, the mandate is imperative, and noncompliance with it avoids all contracts based u n it.^' 14 People V. May, 9 Colo. 404, 12 Pac. 838; Hunt v. Fawcett, 8 Wash. 396. 36 Pac. 318. 15 Nelson v. Haywood Co., 87 Tenn. 781, 11 S. W. 885, 4 L. R. A. 648; Hobart v. Supervisors, 17 Cal. 23; Crooke v. Daviess Co., 36 Ind. 320; Colburu v. Railroad Co., 94 Tenn. 43, 28 S. W. 298: Allen V. Cerro Gordo Co., 34 Iowa, 54 ; Lewis v. Lofley, 92 Ga. 804. 19 S. E. 57; Dyer v. Erwin, 100 Ga. 845, 33 S. E. 63. 16 Reichard v. Warren Co., 31 Iowa, 381; Lewis v. Bourbon Co., 12 Kan. 186; State, to Use of Neal, v. Saline Co., 48 Mo. 3!J0, 8 Am. Rep. 108. In Black v. Commissioners, 129 N. C. 121, 39 S. E. 818, it 60 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 3 County Ltabilities Incurred upon Whose Authority. All county liabilities not specially prescribed by law arise in consequence of the act of some board or officer authorized to represent the county and incur the liability. This liability may be contracted by the county board under general authority, or by a committee thereunto lawfully appointed by it, or by some officer duly authorized by statute. In some instances the course of action to be taken by the constituted authority to incur the liability is prescribed by the statute. The general rule of law is that that particular board or officer of the county empowered to do the act or make the contract alone has power to make the county liable. ^'^ No other can assume the power and responsi- bility; he would be a mere volunteer, and could not bind the county by his acts. The method of official action is sometimes so prescribed by the statute as to become material to the con- tract. In such case the law must be substantially pursued, or the contract will not be binding; ^* as, for instance, if the stat- ute prescribes that the contract shall be in writing, and shall be signed by specified officers, no action could be maintained upon was ruled that a tax levy for building a courthouse was not such extraordinary expense, within the meaning of the Constitution, as to require its submission to popular vote. But see Dyer v. Erwin, 106 Ga. 845, 33 S. E. 63, where, on full and exhaustive examination, the conclusion was reached as stated in the text. See, also, Locke v. Davison, 111 111. 19. 17 Simmes v. Chicot Co., 50 Ark. 566; Tatlock v. Louisa Co., 46 Iowa, 13S; Davis v. Linn Co., 24 Iowa, 508; ANTHONY v. COUNTY OF JASPER, 101 U. S. 693, 25 L. Ed. 1005 ; Merchants' Exch. Nat. Bank v. Bergen Co., 115 U. S. 348, 6 Sup. Ct 88, 29 L. Ed. 430; BROWN V. BON HOMME CO., 1 S. D. 216, 46 N. W. 173; Chisholm V. Montgomery, 2 Woods, 584, Fed. Cas. No. 2,686. 18 State V. Marion Co., 21 Kan. 419; Bentley v. County Com'rs, 25 Minn. 259; Head v. Insurance Co., 2 Cranch (U. S.) 127, 2 L. Ed. 229; wherein Marshall, C. J., declared: "When the law prescribes to the corporation a mode of contracting, it must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." See, also, AGAWAM NAT. BANK v. SOUTH HADLEY, 128 Mass. 503. § 21) CONTRACTS — SUBJECT-MATTER. 61 an oral contract made by the designated officers, or written con- tract signed by other officers, though it be otherwise authorized by law.^* Illustrations. Thus where the chairman of the board of supervisors, who was also ex officio chairman of the building committee, contracted with the plaintiffs for materials for a jail upon the credit of the county, but without express authority from the supervisors or the building committee, the court refused to infer the authority of the chairman in the premises, and held the con- tract void ; ^° and it was held in the same case that a statement by the chairman of the county board, made to the claimant in open session and without objection, that the board could not pay the bill that day, but would do so as soon as the work was accepted, did not constitute a contract binding as an obligation upon the county. And where a county tax collector employed an attorney to represent the interests of the county, the contract was held void, because that power was vested alone in the county court. *^ So, also, it has been held in Indiana that a promise made by county commissioners to pay extra compensa- tion for extra work by a contractor on a "free gravel road" was not binding upon the county, because the statute had imposed the expense of constructing these roads upon the landowners. ^^ !» Hasbrouck v. Milwaukee, 21 Wis. 217; City of Sacramento v. Kirk, 7 Cal. 419; Bonesteel v. New York, 22 N. Y. 162; O'Hara y. New Orleans, 30 La. Ann. 152; Hague v. Philadelphia, 48 Pa. 527: Starkey v. Minneapolis, 19 Minn. 203 (Gil. 166); Lebcher v, Custer Co., 9 Mont. 315, 23 Pac. 713. But the ancient formalities in regard to corporation contracts are not now observed or required, even in case of public corporations. FANNING V. GREGOIRE, 16 How. (U. S.) 524, 14 L. Ed. 1043; City of Chattanooga v. Geiler, 13 Lea (Tenn.) 611 ; ROSS v. MADISON, 1 Ind. 281, 48 Am. Dec. 361 ; Bellmeyger v. Marshalltown, 44 Iowa, 564 ; City of Alton v. Mulledy, 21 III. 76; Montgomery Co. v. Barber, 45 Ala. 237. 20 Rice V. Plymouth Co., 43 Iowa, 136. 21 Simmes v. Chicot Co., 50 Ark. 566, 9 S. W. 308. 2 2 Little V. Hamilton Co.. 7 Ind. App. 118, 34 N. E. 499. 62 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 3 In Pennsylvania it has been decided that a county is not liable to an innkeeper for board and lodging of militia called out by the sheriff to quell a riot and keep the peace, but that the inn- keeper must look to the sherifif personally.''^ In regard to at- torneys, it has also been held that the county is not liable for one appointed by the court to represent the prosecution in the absence of the county attorney ; ^* nor when retained by the dis- trict attorney to assist him in a state case; ^^ nor one appointed by a justice of the peace; ^® nor for a special attorney to repre- sent the county when there is a regular county attorney ; " nor for one assisting in the prosecution of a state case, even when retained by the county commissioners.^* Implied Contracts. On the other hand, a county has been held liable in an action of assumpsit for the value of property or services of a person received and appropriated by it, in the absence of any express contract. In such cases, of course, knowledge of the facts must be brought home in due season to the county board in order to fasten liability upon the county.^^ But the law will not imply a contract in conflict with an express contract,^" nor where an express contract is forbidden.^ ^ An action will also 23 Raush V. Ward, 44 Pa. 389. 2 4 Miller v. Buena Vista Co., 68 Iowa, 711, 28 N. W. 31, 2 5 Tatlock V. Louisa Co., 4G Iowa, 138. 26 Davis V. Linn Co., 24 Iowa, 508. 27 Brome v. Cuming Co., 31 Neb. 362, 47 N. W. 1050. 2 8 Storey v. Murphy, 9 N. D. 115, 81 N. W. 23; Modoc Co. T. Spen- cer, 103 Cal. 498, 37 Pac. 483. 29 Madison Co. v. Gibbs, 9 Lea (Tenn.) 383; Butler v. Neosho Co., 15 Kan. 178; Brady v. New York, 10 N. Y. 260; Montgomery Co. v. Barber, 45 Ala. 237. 3 Emerson v. Washington Co., 9 Me. 95; Young v. Iberville Parish, 22 La. Ann. 87. 31 Hovey v. Wyandotte Co., 56 Kan. 577, 44 Pac. 17; Richardson v. Grant Co. (C. C.) 27 Fed. 495; Argenti v. San Francisco, 16 Cal. 255; McDonald v. new YORK, 68 N. Y. 23, 23 Am. Rep. 144; Burrill v. Boston, 2 Cliff. 590, Fed. Cas. No. 2,198; The Collector V. Hubbard, 12 Wall. (U. S.) 1, 20 L. Ed. 272; Murphy v. Louisville, § 22) FORMS OF CONTRACTS. ()o lie against a county for money had and received under an ultra vires contract, provided the money was applied to a lawful county purpose.'^ FORMS OF CONTRACTS. 22. If the form, of contract, or mode of executing the same, be not prescribed by statute, the contracts of counties may be made in the same xira,y as those of other cor- porations, and may be either in tTriting or by parol. Important county contracts, requiring the exercise of discre- tion, must, of course, be made by the governing board of the county, whether it be court, commissioners, supervisors, free- holders, or police juries. Such boards are required to keep a record of their proceedings, and it has been held that their ac- tion as a board can be proven only by the record.®^ In other cases proof has been admitted of the oral declarations of the 9 Bush (Ky.) 189; Curtis v. Fiedler, 2 Black (U. S.) 478, 17 L. Ed. 273; Thomas v, Richmond, 12 AVall. (U. S.) 349, 20 L. Ed. 453; Paul V. Kenosha, 22 Wis. 26G, 94 Am. Rep. 59S. 82 Peed V. McCrary, 94 Ga. 487, 21 S. E. 232; Borough of Hen- derson V. Sibley Co., 28 Minn. 515, 11 N. W. 91; MARSH v. FUL- TON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Waitz v. Ormsby Co., 1 Nev. 370; Dowell v. Portland. 13 Or. 248, 10 Pac. 308; Allen v. LaFayette, 89 Ala. 641, 8 South. 30, 9 L. R. A. 497; Chapman v. Douglas Co., 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Morton v. Nevada (C. C.) 41 Fed. 582. 33 Rich V. Town of Mentz, 134 U. S. 632, 10 Sup. Ct. 610, 33 L. Ed. 1074; Cowdrey v. Town of Caneadea (C. C.) 16 Fed. 5.32; Crump v. Colfax Co., 52 Miss. 107; People v. Fulton Co.. 14 Barb. (N. Y.) 56. But the contrary rule is the prevailing one. United States Bank v. Dandridge, 12 Wheat. (U. S.) 64, 6 L. Ed. 552; Wayne Co. v. Detroit. 17 Mich. 390; Bank of Columbia v. Patterson, 7 Cranch (U. S.) 209. 3 L. Ed. 351; Gassett v. Andover, 21 Vt. 342. In Kentucky it has been held that where bodies like the county court have judicial powers, and also large administrative and ex- ecutive powers, and are by law empowered to employ agents in the execiition of the latter branch of powers, the acts of the agents are not in every case required to appear of record. 64 QUASI CORPORATIONS COUNTIES, ETC. (Cll. 3 chairman made in open session to the contractor.^* The ques- tion of the contract is thus made to turn upon the rules of evi- dence. The rule enforced in the courts seems to be that strict proof will be required of persons suing- the county upon a contract wholly executory.^'^ But if under a contract inform- ally made, the county has received the benefits contracted for, either in property or services, and the matter is within the scope of the county's authority, formal proof will not be re- quired; thus following the rule applied to private corpora- tions.*' Agency — RatiUcation. In minor contracts relating to small matters of detail entering into current expenses of the county, and in purely ministerial matters where official discretion is not required, contracts may be by parol, and may be made by agents or employes under spe- cial or general authority.*' In these cases the general doc- 8* Rice V. Plymouth Co., 43 Iowa, 136; Curtis v. Cass Co., 49 Iowa, 421. See Gordon v. Denton Co. (Tex. Civ. App.) 48 S. W. 737. 86 Starkey v. Minneapolis, 19 Minn. 203 (Gil. 16G); Gilbert v. New Haven, 40 Conn. 102; Board of Hunting County Com'rs v. Boyle, 9 Ind. 296. 36 Do well v. Portland, 13 Or. 248, 10 Pac. 308; Mott v. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550; State Board of Education v. Aberdeen, 56 Miss. 518; Wayne Co. v. Detroit, 17 Mich. 390; In- habitants of Adams v. Farnsworth, 15 Gray (Mass.) 423; Taylor v. Lambertville, 43 N. J. Eq. 107, 10 Atl. 809; Dauphin Co. v. Briden- hart, 16 Pa. 458; Ring v. Johnson Co., 6 Iowa, 265; Montgomery Co. V. Barber, 45 Ala. 237. If a county obtains the money or property of others without authority, the law, independently of statute, will compel restitution or compensation. MARSH v. PULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; City of Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153. 8 7 City of Alton v. Mulledy, 21 111. 76; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143; Bank of Columbia v. Patterson, 7 Cranch (U. S.) 299, 3 L. Ed. 351; FANNING v. GREGOIRE, 16 How. (U. S.) 524, 14 L. Ed. 1043. See, also, Schuylkill County Com'rs v. Snyder, 20 Pa. Co. Ct. R. 649; Hanley v. Randolph Co. Court, 50 W. Va. 439, 40 S. E. 389; Black v. Commissioners, 129 N. C. 121, 39 S. E. 818; Steiner v. Polk Co., 40 Or. 124, 66 Pac. 707, where a county judge ad- § 22) FORMS OF CONTRACTS. 65 trines of the law of agency are controlling, and, in matters with- in the scope of the county purposes, contracts originally unau- thorized may become valid and binding by ratification, so as to render the county liable thereon.^® But ratification will not validate even an executed contract pertaining to matters beyond the limit of the county authority. *• vised that a wounded pauper be taken to the hospital for treatment, and requested a physician to attend him and present his bill to the county court. The court allowed bills for care, board, and hospital charges, and it was held that such action constituted a ratification of the arrangement made by the judge, so as to render the county liable for the value of the physician's services. See Buncombe v. Ft Dodge, 38 Iowa, 281. 3 8 Schmidt v. County of Stearns, 34 Minn. 112, 24 N. W. 358; Mor- ris County Com'rs v. Hinchman, 31 Kan. 729, 3 Pac. 504; Clarke v. Lyon Co., 8 Nev. 181; MILLS v. GLEASON, 11 Wis. 470, 78 Am. Dec. 721; City of Galveston v. Morton, 58 Tex. 409; Wilhelm v. Cedar Co., 50 Iowa, 254 ; Otoe Co. v. Baldwin, 111 U. S. 1, 4 Sup. Ct. 265, 28 L. Ed. 331 ; BROWN v, BON HOMME CO., 1 S. D. 216. 46 N. W. 173. In Grenada County Sup'rs v. Brown, 112 U. S. 261, 5 Sup. Ct. 125, 28 L. Ed. 704, it was declared that a subscription to the stock of a railway company, or in aid of the construction of a railroad, made without authority previously conferred, may be confirmed and legal- ized by subsequent enactment, when legislation of that character is not prohibited by the Constitution, and when that which is done would have been legal, had it been done under legislative sanction previously given, 39 BOARD OF .JEFFERSON COUNTY SUP'RS v. ARRIGHI, 54 Miss. 668; MARSH v. FULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; CITY OF BRYAN v. PAGE, 51 Tex. 332, 32 Am. Rep. 637; Brown v. Mayor, 63 N. Y. 239; Scott's Ex'rs v. Shreveport (C. C.) 20 Fed. 714; Green v. Cape May, 41 N. J. Law, 46. A county cannot ratify a contract to pay for extra materials and labor furnished to complete a county building, the value of which exceeded the stat- utory limit, which contract was void for the failure of the county commissioners to advertise for bids in the performance of such labor and furnishing of such materials, Tullock v. Webster Co,, 46 Neb. 211, 64 N. W. 705; DAVIESS CO. V. DICKINSON, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 102S. Ing.Cobp. — 6 66 QUASI CORPORATIONS — COUNTIES, ETC, (Ch. 3 BORROWING MONET. 23. Liability cannot be fixed upon a county for money bor- TouT^ed in Its name urithout statutory authority. This rule applies to all cases of borrowing, even though the money borrowed be applied to strictly public purposes, and be within the scope of the county government.*" In this respect the county is wholly unlike the private corporation. Not be- ing for private profit, but solely for public use, it cannot engage in business ventures. Power to borrow money is not implied as an inherent power of a quasi corporation.*^ Public revenues are provided for its necessary expenses, and the wholesome rule prevails that a county must live within its means. Annual ap- propriations must not exceed annual revenues. If emergencies *o Goodnow v. Ramsey Co., 11 Minn. 31 (Gil. 12); Police Jury v. Britton. 15 Wall. (U. S.) 566, 21 L. Ed. 251; Duke v. Williamsburg Co., 21 S. C. 414; Lewis v. Sherman Co. (C. C.) 5 Fed. 269; Curtis v. Leavitt, 15 N, Y. 9; Swackhamer v. Hackettstown, 37 N. J. Law, 191; Gause v. Clarksville, 5 Dill. 165, Fed. Cas. No. 5,276; Robertson V. Breedlove, 61 Tex. 316; NASHVILLE v. RAY, 19 Wall. (U. S.) 468, 22 L. Ed. 164; Knapp v. Hoboken, 39 N, J. Law, 394; Shirk V. Pulaski Co., 4 Dill. 209, Fed. Cas. No. 12,794; Thomas v. Port Huron, 27 Mich. 320. See,. contra, MILLS v. GLEASON, 11 Wis. 470, 78 Am. Dec. 721; Bank of Chillicothe v. Chillicothe, 7 Ohio, 31, pt. 2, 30 Am. Dec. 185; Miller v. Board, 66 Ind. 162. But see 1 Dill. Mun. Corp. §§ 117, 121-126. 41 CLAIBORNE CO. v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470; POLICE JURY v. BRITTON, 15 Wall. (U. S.) 566, 21 L. Ed. 251. See, also, Lynde v. Winnebago Co., 16 Wall. (U. S.) 6, 21 L. Ed. 272, where the county had express legislative authority to borrow money for the erection of public buildings, when authorized by the voters at an election called for the purpose. In CLAIBORNE CO. V. BROOKS the court also declared that the power to issue nego- tiable paper cannot be conceded to counties and townships, which are political divisions, unless it is authorized by express legislation or by very strong implication. See, also, City of St. Louis v. Alexander, 23 Mo. 483; Thompson v. Lee Co., 3 Wall. (U. S.) 327, 18 L. Ed. 177; 1 Dill. Mun. Corp. §§ 117-125; Combs v. Letcher Co.. 107 Ky. 379, 54 S. W. 177. § 23) BORROWING MONET. 67 arise requiring extraordinary expenditure for the public good, resort must then be had to such extraordinary means as the legislature may provide. Most states have permanent general statutes providing for exigencies of frequent occurrence in the counties, such as the erection of costly public buildings, the pur- chase of expensive property for public use, the construction of some great public improvement within the sphere of county purposes, and also subscriptions in aid of quasi public corpora- tions. In such cases power to borrow money is generally con- ditioned upon popular approval by public election. But unless forbidden by the Constitution, the legislature may grant this power without popular consent,*^ and either by general legisla- tion or by special act in favor of a particular county or class of counties. There are cases, however, holding counties liable for money loaned to the county and used by it strictly for coun- ty purposes, notwithstanding the contract was ultra vires ; the action in such case not being upon the express contract, but for money had and received to the use of the county.** *2 Allen V. Cerro Gordo Co., 34 Iowa, 54; Crooke v. Daviess Co.. 36 Ind. 320; Hobart v. Supervisors. 17 Cal. 23; Pauly Jail Bldg. & Mfg. Co. V. Commissioners, 68 Fed. 171, 15 C. 0. A. 351; HeCEerlin V. Cliambers, 16 Mont. 349, 40 Pae. 787. The Iowa Code provides for the submission to the people of the question of expenditure for a county building of a sum over $5,000, involving the levy of a tax. and renders the county supervisors incompetent to act in the erec- tion of a building to cost more than that amount. It was held that, where there was money in the county treasury sufficient to pay the expense of the erection of a proposed county building, it Is not neces- sary to submit the question of a tax levy to the people of the county. Miller v. Merriam, 94 Iowa, 126. 62 N. W. 689. 43 Borough of Henderson v. Sibley Co., 28 Minn. 515, 11 N. W. 91; Gray v. Tompkins Co., 93 N. Y. 603; Stamp v. Cass Co., 47 Mich. 330. 11 N. W. 183; State, to Use of Neal, v. Saline Co., 48 Mo. 390, 8 Am. Rep. 108; Argenti v. San Francisco, 16 Cal. 255; Dowell v. Portland, 13 Or. 248. 10 Pac. 308; BOARD OF SUP'RS OF SAN- GAMON CO. V. SPRINGFIELD, 63 111. 66; Richardson v. County of Grant (C. C.) 27 Fed. 495; LYNDE v. COUNTY OF WINNEBAGO, 16 Wall. (U. S.) 6, 21 L. Ed. 272; CLAIBORNE CO. V. BROOKS. HI U. S. 400, 4 Sup. Ct. 489, «8 L. Ed. 470. 68 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 3 County Paper. As a corollary of the above doctrine on borrowing money, it is held that counties cannot issue negotiable paper without leg- islative authority.** County warrants, in whatever form, drawn by the proper officer upon the county treasurer, or notes or due-bills issued in the current business of the county, evi- dencing county obligations, are not public securities or nego- tiable instruments,*^ and do not, therefore, come within the provision of the law pertaining to those subjects. Generally they are held not to bear interest,*® whatever may be their form, and, in the hands of assignees or indorsees, are subject to all defenses, legal and equitable, which the county would have against them in the hands of the original payee.*'' 44 CLAIBORNE CO. v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470; Goodnow v. Ramsey Co., 11 Minn. 31 (Gil. 12); Kirk bride v. Lafayette Co., 108 U. S. 208, 2 Sup. Ct. 501, 27 L. Ed. 705 Clay V. Nicholas County Court, 4 Bush (Ky.) 154; Hawkins v. Car roll Co., 50 Miss. 735; Delaware Co. v. McChntock, 51 Ind. 325 Mercer Co. v. Hackett, 1 Wall. (U. S.) 83, 17 L. Ed. 548; Clapp v Cedar Co., 5 Iowa, 15, 68 Am. Dec. 678; Thomson v. Lee Co., 3 Wall (U. S.) 327, 18 L. Ed. 177; POLICE JURY v. BRITTON, 15 Wall (U. S.) 566, 21 L. Ed. 251; Marshall County Sup'rs v. Cook, 38 111 44, 87 Am. Dec. 282; Ball v. Presidio Co., 88 Tex. 60, 29 S. W 1042; Colburn v. Railroad Co., 94 Tenn. 43, 28 S. W. 298. 4 5 Clark V. Polk Co., 19 Iowa, 248; People v. County, 11 Cal. 170 Crawford Co. v. Wilson, 7 Ark. 214; Campbell v. Polk Co., 3 Iowa 467; Board of Com'rs of Floyd County v. Day, 19 Ind. 450; In ternational Bank of St. Louis v. Franklin Co., 65 Mo. 105, 27 Am Rep. 261; CARROLL CO. v. UNITED STATES, 18 Wall. (U. S. 71, 21 L. Ed. 771 ; Shirk v. Pulaski Co., 4 Dill. 209, Fed. Cas. No. 12,794; Bauer v. Franklin Co.. 51 Mo. 205; Brskine v. Steele Co. 4 N. D. 339, 60 N. W. 1050, 28 L. R. A. 645; McPeeters v. Blanken ship, 123 N. C. 651, 31 S. E. 876. 46 Camp V. Knox Co., 3 Lea (Tenn.) 199 ; Gibson Co. v. Rains, 11 Lea (Tenn.) 22; Robbins v. County Court, 3 Mo. 57; South Park Com'rs V. Dimlevy, 91 111. 49; People v. Tazewell Co., 22 111. 147; Madison Co. v. Bartlett, 1 Scam. (111.) 67; Rogers v. Lee Co., 1 Dill. 529, Fed. Cas. No. 12,013; Hollingsworth v. Detroit, 3 McLean, 472, Fed. Cas. No. 6,613. 47 Garner v. State, 5 Lea (Tenn.) 216; Goyne v. Ashley Co., 31 24) COUNTT BONDS. 69 COUNTY BONDS. 24. County bonds, w^hen duly authorized by valid statute, and issued by proper county ofAcers in substantial compli- ance \7itli tbe terms and conditions of tbe statute, impose a legal liability upon tbe county, and, like otber negotiable paper, are subject to tbe rules of tbe la\p of negotiable instruments. The term "county bonds" is commonly used to include all written promises to pay money executed by a county, which, if made by individuals, would be called "promissory notes." The nature and extent of the obligation is shown in the face of the paper. The bond is executed by the county authorities as agents of the county. Their power depends upon the statutes. It may appear in the statute authorizing the issuance of the bonds, and designating the officer appointed to perform this function ; or the agency for this purpose may be expressed in the general statutes. Legal appointment of the officer to this duty is essential to the validity of the bonds.** Unless he be the Ark. 552; Bauer v. Franklin Co., 51 Mo. 205; United States v. Miller Co., 4 Dill. 233, Fed. Gas. No. 15,776; Shirk v. Pulaski Co., 4 Dill. 209, Fed. Cas. No, 12,794; CARROLL CO. v. UNITED STATES, 18 Wall. (U. S.) 71, 21 L. Ed. 771 ; Gibson Co. v. Rains, 11 Lea (Tenn.) 22; County of Ouachita v. Wolcott. 103 U. S. 559, 26 L. Ed. 505; Wall V. Monroe Co., 103 U. S. 74, 26 L. Ed. 430; Rio Grande Co. v. Jerome (C. C.) 18 Fed. 873. See, also, POLICE JURY v. BRITTON, 15 Wall. (U. S.) 566, 21 L. Ed. 251; CLAIBORNE CO. v. BROOKS. Ill U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470; Goodnow v. Ramsey Co., 11 Minn. 31 (Gil. 12); Hyde v. Franklin Co., 27 Vt. 185; Erskine v. Steele Co., 4 N. D. 339, 60 N. W. 1050, 28 L. R, A. 645; Bardsley v. Steinberg, 17 Wash. 243, 49 Pac. 499. But they have been held so far negotiable as to render parties indorsing them liable as In- dorsers. Campbell v. Polk Co., 49 Mo. 214; State ex rel. Livesay v. Harrison, 99 Mo. App. 57, 72 S. W. 469. 4 8 ANTHONY V. COUNTY OF .L\SPER, 101 U. S. 693. 25 L. Erl. 1005 ; BROWN v. BON HOMME CO., 1 S. D. 216, 46 N. W. 173 ; Mer- chants' Exch. Nat. Bank v. Bergen Co., 115 U. S. 384, 6 Sup. Ct. 88, 29 L. Ed. 430; Coler v. City of Cleburne, 131 U. S. 162, 9 Sup. Ct. 70 QUASI CORPORATIONS — COUNTIES, BTC. (Ch. 3 agent of the county for this purpose, he cannot bind his princi- pal. Within the scope of his agency, the county is bound by his official action. Mere irregularities will not affect the validity of the bonds.*® The fundamental question is the power of the county to issue the bonds. Having this power, it is the business of the county and its officers to execute it in a proper manner. It is not required of a bona fide purchaser that he shall go out- " side the record and inquire whether the agent has pursued his instructions, provided his act be within the scope of his au- thority.^" The general doctrines of agency apply to county bonds. If upon their face they appear to be in pursuance of the authority lawfully conferred, a purchaser in good faith may 720, 33 L. Ed. 146; Chisholm v. Montgomery, 2 Woods, 584, Fed. Cas. No. 2,686. The Supreme Court of Tennessee having decided the board of commissioners of Shelby county to have been an un- authorized and illegal body, it was held, in an action on certain bonds issued by said board, that the power of de facto officers could not be invoked in the plaintiff's aid, as there could be no officers de facto where there is no office de jure, and the facts failed to show any ratification by the county. NORTON v. SHELBY CO., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. See, also, DAVIESS CO. y. DICK- INSON, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026. 4 9 Maddox v. Graham, 2 Mete. (Ky.) 56; City of San Antonio v. Lane, 32 Tex. 405; Danielly v. Cabaniss Co., 52 Ga. 211; Anderson V. Santa Anna Tp., 116 U. S. 356, 6 Sup. Ct. 413, 29 L. Ed. 633; BROWN V. BON HOMME CO., 1 S. D. 216, 46 N. W. 173; Potter v. Lainhart (Fla.) 33 South. 251; Otoe Co. v. Baldwin, 111 U. S. 1, 4 Sup. Ct. 265, 28 L. Ed. 331. 60 Carroll Co. v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; Cromwell v. Sac Co., 96 U. S. 58, 24 L. Ed. 681; KNOX CO. V. ASPINWALL, 21 How. (U. S.) 539, 16 L. Ed. 208; Scotland Co. v. Hill, 132 U. S. 107, 10 Sup. Ct 26, 33 L. Ed. 261 ; Manhattan Co. v. Ironwood, 74 Fed. 535, 20 C. C. A. 642; CITY OF EVANSVILLE v. DENNETT, 161 U. S. 434, 16 Sup. Ct. 613, 40 L. Ed. 760; Board of Com'rs of Comanche Co. v. Lewis, 133 U. S. 198, 10 Sup. Ct. 286, 33 L. Ed. 604. Where refunding bonds, payable to bearer, recite that they are issued in conformity with an act authorizing the county to issue such bonds and provide for retirement of outstanding bonds, a purchaser is not bound to investigate the nature of the refunded indebtedness. Ashley v. Board of Supervisors of Presque Isle Co., § 24) COUNTY BONDS. 71 assume compliance with instructions by the agent. The bad faith or misconduct of the duly authorized agent is the misfor- tune of his principal, and is not visited by the law upon an in- nocent third party. ^^ A uthority — Indispensable. Payment of county bonds is ordinarily resisted (1) for want of authority in the county to execute the bonds ; (3) for illegal exercise of the authority. The first objection, if well made, is always fatal. ^^ Even a bona fide holder for value cannot with- stand it.^* The bond is void. Ratification cannot validate 8 C. C. A. 455, 60 Fed. 55. See Territory v. Hopkins, 9 Okl. 133, 59 Pac. 976. As to recitals otlier tlian upon the face of the bonds, as a certificate indorsed on the bond to the effect that the requirements had been complied with in their issuance, see Bolles v. Perry Co., 92 Fed. 479, 34 C. C. A. 478. Where county officers issue their obligations, it will be presumed that they were issued for lawful corporate purposes, within the scope of the officers' powers. Board of Com'rs of Custer Co. v. De Lana, 8 Okl. 213, 57 Pac. 162. Bi MORAN V. MIAMI CO., 67 U. S. 722, 17 L.. Ed. 342; Moultrie Co. V. Bank, 92 U. S. 631, 23 L. Ed. 631; TOWN OF COLOMA v. EAVES, 92 U. S. 484, 23 L. Ed. 579; Town of Pana v. Bowler, 107 U. S. 529, 2 Sup. Ct. 704, 27 L. Ed. 424; DIXON CO. v. FIELD, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; BROWN v. BON HOMME CO., 1 S. D. 216, 46 N. W. 173; Wesson v. Saline Co., 73 Fed. 917, 20 C. C. A. 227; Belo v. Commissioners, 76 N. C. 489. 5 2 MARSH V. FULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; CLAIBORNE CO. v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470; Blair v. Cuming Co., Ill U. S. 363, 4 Sup. Ct. 449, 28 L. Ed. 457; Wells v. Supervisors, 102 U. S. 625, 26 L. Ed. 122; Clay V. Nicholas County Court, 4 Bush (Ky.) 154. csOgden v. Daviess Co., 102 U. S. 634, 26 L. Ed. 263; WELLS V. PONTOTOC CO., 102 U. S. 625, 26 L. Ed. 122; HARSHMAN v. BATES CO., 92 U. S. 569, 23 L. Ed. 747; Bates Co. v. Winters, 112 U. S. 325, 5 Sup. Ct. 157, 28 L. Ed. 744; English v. Chicot Co., 26 Ark. 454. The cases in this and the previous note establish the doctrine that the authority to issue bonds for strictly county pur- poses may be implied from general or special power conferred by statute on the county. Authority to issue bonds in aid of railroads or other works of public nature must be expressly conferred by statute. 72 QUASI CORPORATIONS — COUNTIES, ETC. (Cll. 3 it.'* Estoppel cannot be invoked to save it.'" Unless the state has conferred upon the county authority to impose this liability upon its people and property, the bond places no obligation up- on them, and cannot be enforced by any judicial tribunal. Such an unauthorized instrument is, in the view of the law, like a piece of blank paper, and no merit or good faith of the holder can give it vitality or legal obligation. If, therefore, there be no statute or constitutional provision empowering the county to make the bond,^* or if the statute be unconstitution- al,'''^ or if the purpose for which the bond was executed be purely private, °^ the bond is void, and the county cannot be held liable upon it 6* DAVIESS CO. V. DICKINSON, 117 U. S. 657, 6 Sup. Ct. 897. 29 L. Ed. 1026; City of Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. 631, 27 L. Ed. 669; MILLS v. GLEASON, 11 Wis. 470, 78 Am. Dec. 721; Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; KELLEY v. TOWN OF MILAN, 127 U. S. 139, 8 Sup. Ct. 1101, 32 L. Ed. 77; Coleman v. Broad River Tp., 50 S. C. 321, 27 S. E. 774. 5B MARSH V. FULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455; Williamson v. Keokuk, 44 Iowa, 88; Bissell v, Kankakee, 64 111. 249, 21 Am. Rep. 554; Town of Douglass v. Bank, 97 111. 228; Lamoille Val. R. Co. v. Fairfield, 51 Vt. 257. 56 CLAIBORNE CO. v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470; Carter Co. v. Sinton, 120 U. S. 517, 7 Sup. Ct. 650, 30 L. Ed. 701; Provident Life & Trust Co. v. Mercer Co., 170 U. S. 600, 18 Sup. Ct. 788, 42 L. Ed. 1156. 67 GERMAN SAV. BANK v. FRANKLIN CO., 128 U. S. 526, 9 Sup. Ct. 159, 32 L. Ed. 519; STEINES v. FRANKLIN CO., 48 Mo. 167, 8 Am. Rep. 87; Columbia Co. Com'rs v. King, 13 Fla. 451; HARSH- MAN V. BATES CO., 92 U. S. 569, 23 L. Ed. 747; WELLS v. PONTO- TOC CO., 102 U. S. 625, 26 L. Ed. 122; Ogden v. Daviess Co., 102 U. S. 634, 26 L. Ed. 263; Amoskeag Nat. Bank v. Ottawa, 105 U. S. 667, 26 L. Ed. 1204. 88 Ck)oley, Const. Lim. (6th Ed.) pp. 129, 175, 214; Osborne v. County of Adams, 106 U. S. 181, 1 Sup. Ct. 168, 27 L. Ed. 129; SHARPLESS V. PHILADELPHIA, 21 Pa. 147, 59 Am. Dec. 759; Baltimore & E. S. R. Co, v. Spring, 80 Md. 510, 31 Atl. 208. 27 L. R. A. 72; Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Brodhead r. Milwaukee, 19 Wis. 624, 88 Am. Dec. 711; Weismer v. Douglass Co., 64 N. T. 91, 21 Am. Rep. 586. § 24) COUNTY BONDS. 73 Irregularities — Recitals — Estoppel. The defense of an illegal exercise of authority, though oftener made, is not so easily available. County bonds are commonly made payable to bearer, and many defenses allowed to the county against an original holder cannot be used against a bona fide holder for value. Moreover, defects in execution may be cured by ratification, lost by waiver, or covered by estoppel. The county or the legislature may ratify by subsequent action bonds originally invalid by reason of some irregularity in their execution.^® The Legislature may validate an irregular issue of bonds, provided it has constitutional power to authorize an original issuance thereof.^" The county, with full knowledge of the facts, may, by long acquiescence and recognition of the obligation, waive any original objection to their irregularity,®^ or by the recitals in the bonds it may estop itself from asserting invalidity arising out of irregular execution.®^ But the act of 8» STEINES V. FRANKLIN CO., 48 Mo. 167, 8 Am. Rep. 87; Ritchie v. Franlilin Co., 22 Wall. (U. S.) 67, 22 L. Ed. 825; Otoe Co. V. Baldwin, 111 U. S. 1, 4 Sup. Ct. 265, 28 L. Ed. 331; BROWN V. BON HOMME CO., 1 S. D. 216, 46 N. W. 173; Noel Young Bond & Stock Co. V. Mitchell Co., 21 Tex. Civ. App. 638, 54 S. W. 284; Watson V. De Witt Co., 19 Tex. Civ. App. 150, 46 S. W. 1061, where the county failed at time of issuance of the bonds to provide for levy- ing a tax for their payment 6 Grenada County Sup'rs v. Brogden, 112 U. S, 261, 5 Sup. Ct. 125, 28 L. Ed. 704; Anderson v. Santa Anna Tp., 116 U. S. 364. 6 Sup. Ct 413, 29 L. Ed. 633; Utter v. Franklin. 172 U. S. 424, 19 Sup. Ct 183, 43 L. Ed. 498; Steele Co. v. Erskine, 98 Fed. 217, 39 C. C. A. 173; Sykes v. Columbus, 55 Miss. 115; Katzenberger v. Aberdeen, 121 U. S. 172, 7 Sup. Ct 947, 30 L. Ed. 911; Erskine v. Steele Co. (C. C.) 87 Fed. 630. 81 Heed v. Com'rs of Cowley Co. (C. C.) 82 Fed. 716; Presidio Co. V. City Nat Bank, 20 Tex. Civ. App. 511, 44 S. W. 1069; State v. Clinton Co., 6 Ohio St 280: Ray Co. v. Vansycle, 96 U. S. 675. 24 L. Ed. 800; PENDLETON CO. v. AMY, 13 Wall. (U. S.) 297, 20 L. Ed. 579; Marshall Co. v. Schenck, 5 Wall. (U. S.) 781, 18 L. Ed. 556; Board of Sup'rs of Mercer Co. v. Hubbard, 45 111. 139; Jasper Co. v. Ballou, 103 U. S. 745, 26 L. Ed. 422. «2 MORAN V. MIAMI CO., 67 U. S. 722. 17 L. Ed. .342; KNOX 74 QUASI CORPORATIONS — COUNTIES, ETC. (Cll. 3 ratification must be by due authority;** the waiver must be with knowledge, actual or constructive ; ** and the act consti- tuting the estoppel must have been performed by officers there- unto legally authorized."^ A mayor having no authority to issue bonds has no power to perform an act of ratification,®' and officers having no authority to determine or decide whether conditions precedent had been complied with cannot bind the county by recital of such compliance in the face of the bonds executed by them.®^ A public corporation is not estopped to deny the authority of persons assuming to act for it.®^ Public officers cannot acquire authority by their own declarations, and CO. V. ASPINWALL, 21 How. (U. S.) 539, 16 L. Ed. 208; Moultrie Co. V. Bank, 92 U. S. 631, 23 L. Ed. 631; DIXON CO. v. FIELD, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; Coffin v. Board of Com'rs of Kearney Co., 57 Fed. 137, 6 C. C. A. 288; BROWN v. BON HOMME CO., 1 S. D. 216, 46 N. W. 173. 63 MARSH V. FULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121, 3 Sup. Ct. 99, 27 L. Ed. 878; DAVIESS CO. v. DICKINSON, 117 U. S. 6G5, 6 Sup. Ct. 897, 29 L. Ed. 1026; Board of Com'rs of Oxford v. Bank, 96 Fed. 298, 37 C. C. A. 493; STEINES v. FRANKLIN CO., 48 Mo. 176, S Am. Rep. 87; NORTON v. SHELBY CO., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. e* McPherson v. Foster, 43 Iowa, 48, 22 Am. Rep. 215. 8 6 BROWN V. BON HOMME CO., 1 S. D. 216, 46 N. W. 173; Coffin V. Kearney Co., 57 Fed. 137, 6 C. C. A. 288; DIXON CO. v. FIELD, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; GERMAN SAV. BANK V. FRANKLIN CO., 128 U. S. 526, 9 Sup. Ct. 155, 32 L. Ed. 519; MORAN v. MIAMI CO., 67 U. S. 722, 17 L. Ed. 342. ee KELLEY v. MILAN, 127 U. S. 139, 8 Sup. Ct. 1101, 32 L. Ed. 77. 67 DIXON CO. V. FIELD, 111 U, S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; Board of Sup'rs of Carroll Co. v. Smith, 111 U. S. 562, 4 Sup. Ct. 539, 28 L. Ed. 517; DAVIESS CO. v. DICKINSON, 117 U. S. 665, 6 Sup. Ct. 897, 29 L. Ed. 1026; Hedges v. Dixon Co., 150 U. S. 188, 14 Sup. Ct. 71, 37 L. Ed. 1044; MERCER CO. v. PROV. LIFE INS. & TRUST CO., 72 Fed. 623, 19 C. C. A. 44; Board of Com'rs of Oxford V. Bank, 96 Fed. 298, 37 C. 0. A. 493; Coffin v. Kearney Co., 57 Fed. 137, 6 0. G. A. 288. 68 Coler -s. Cleburne, 131 U. S. 162, 9 Sup. Ct. 720, 33 L. Ed. 146; Merchants' Exch. Nat. Bank v. Bergen Co., 115 U. S. 384, 6 Sup. § 24) COUNTT BONDS. 75 a body politic cannot be estopped thereby from denying their authority to bind it.^* A bona fide purchaser of a county bond is not charged with constructive notice of objections to the validity of bonds being made by the county in pending litiga- tion/" nor with knowledge of latent defects in the execution or issuance of county bonds; ^^ but he is bound to take notice of the Constitution and laws of the state J ^ and particularly the statute under which the bonds are issued/' the public Ct. 88, 29 L. Ed. 430; BROWN v. BON HOMME CO., 1 S. D. 216, 46 N. W. 173. 69 Chisholm v. Montgomery, 2 Woods, 584, Fed. Gas. No. 2,686; Flagg V. School District, 4 N. D. 30, 58 N. W. 499, 25 L. R. A. 363; Leliman v. San Diego, 83 Fed. 609, 27 C. C. A. 668; Board of Com'rs of Oxford v. Bank, 96 Fed. 293, 37 C C. A. 493; MARSH v. FULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; DAVIESS CO. V. DICKINSON, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026; Lake Co. V. Graham, 130 U. S. 674, 9 Sup. Ct, 654, 32 L. Ed. 1065; Lewis V. Shreveport, 108 U. S. 282, 2 Sup. Ct 634, 27 L. Ed. 728. TO Board of Sup'rs of Carroll Co. v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; Scotland Co. v. Hill, 132 U. S. 107, 10 Sup. Ct. 26, 33 L. Ed. 261; Town of Enfield v. Jordan, 119 U. S. 680, 7 Sup. Ct. 358, 30 L. Ed. 523; Stone v. Elliott, 11 Ohio St. 252; Cass Co. V. Gillett, 100 U. S. 585, 25 L. Ed. 585; Winston v. Westfeldt, 22 Ala. 760, 58 Am. Dec. 278; Mims v. West, 38 Ga. 18, 95 Am. Dec. 379. 71 KNOX CO. V. ASPINWALL, 21 How. (U. S.) 539, 16 L. Ed. 208; State v. Commissioners, 62 Kan. 494, 64 Pac. 45. 72 MARSH V. PULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Merchants' Exch. Nat. Bank v. Bergen Co., 115 U. S. 391, 6 Sup. Ct. 88, 29 L. Ed. 430; Barnet v. Denison, 145 U. S. 139, 12 Sup. Ct. 819, 36 L. Ed. 652; Moore v. New York, 73 N. Y. 238, 29 Am. Rep. 134; Sage v. Fargo Tp., 107 Fed. 383, 46 C. C. A. 361; Stebbins v. Perry Co., 167 111. 567, 47 N. E, 1048; Mitchell Co. v. Bank, 91 Tex. 361, 43 S. W. 880. 73 Barnett v. Denison, 145 U. S. 135, 12 Sup. Ct 819, 36 L. Ed. 652; MERCER CO, V. TRUST CO., 72 Fed. 630, 19 C. C. A. 44; Gilson V. Dayton, 123 U. S. 59, 8 Sup. Ct 66, 31 L. Ed. 74; GERMAN SAV. BANK V. FRANKLIN CO., 128 U. S. 520, 9 Sup. Ct 159, 32 L. Ed. 519; Mitchell Co. v. Bank, 91 Tex. 361, 43 S. W. 880. 76 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 3 records in relation to the issue/* and what appears upon the face of the instrument.''" Recitals. As to matters in pais, he may rely for his information upon the recitals contained in the bond — as, for example, if the stat- ute requires popular consent as a condition precedent to the issuance of the bonds, and the county, by its proper officers thereunto duly authorized, recites in the face of the bond a compliance with the statutory conditions, the purchaser is war- ranted in acting upon this recital.'^' The rule of decision con- stantly applied by the Supreme Court of the United States in numerous cases involving this question is thus stated by Mr. Justice Strong : "Where it may be gathered from the legisla- tive enactment that the officers of the municipality were in- vested with power to decide whether the condition precedent has been complied with, their recital that it has been made in bonds issued by them and held by a bona fide purchaser is conclusive of the fact, and binding upon the municipality." " And in a later case it was added : "It is not necessary that the recital should enumerate each particular fact essential to the existence of the obligation, A general statement that the bonds have T4 Shaw V. School Dist., 77 Fed. 277, 23 C. C. A. 169; Valley Co. V. McLean, 79 Fed. 728, 25 C. C. A. 174; Supervisors of Marshall Co. V. Cook, 38 111. 44, 87 Am. Dec. 282. TBGilson V. Dayton, 123 U. S. 59, 8 Sup. Ct. 66, 31 L. Ed. 74; Bolles V. Perry Co., 92 Fed. 479, 34 C. C. A. 478. 76 Moultrie Co. v. Bank, 92 D. S. 631, 23 L. Ed. 631; DIXON CO. V. FIELD, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; Coffin v. Kear- ney Co., 57 Fed. 137, 6 C. C. A. 288; Second Ward Sav. Bank v. Huron (C. C.) 80 Fed. 661; Smith v. Clark Co. 54 Mo. 58; Wilkinson V. Peru, 61 Ind. 1. Where a county court, imder color of an election, issued bonds for aiding a railroad, such bonds were declared void and ultra vires, as being in violation of a constitutional provision forbidding all municipal subscriptions in aid of raih-oad companies, except where authorized under existing law by vote of the people. Stebbins v. Perry Co., 167 111. 567, 47 N. E. 1048. TT TOWN OF COLOMA v. EAVES, 92 U. S. 484, 23 L. Ed. 579. § 24) COUNTY BONDS. 77 been issued in conformity with the law will suffice, so as to embrace every fact which the officers making the statement are authorized to determine and certify." ^^ In further explication of this subject the same court declared: "The facts which a public corporation is not permitted, as against a bona fide hold- er, to question in the face of recital in the bond of their exist- ence, are those connected with or occurring out of the discharge of the ordinary duties of such of its officers as were invested with authority to execute them, and which the statute confer- ring the power made it their duty to ascertain and determine before the bonds were issued." ■" Excessive Issues. This recital in the face of the bond of compliance with condi- tions precedent has been held conclusive even in cases of al- leged overissue of bonds, where the law empowers the officers issuing the bonds to decide, on proof of facts aliunde, the value of the county property upon which is to be computed the amount of bonds which the county may lawfully issue ; *° but where the statute makes reference to some record as evi- dence of this valuation, such as an assessment roll or a census report, then, notwithstanding a recital in the bond of full com- pliance with the law, the purchaser is bound to take notice of such facts as the records, referred to for authority in the stat- ute, disclose concerning the valuation of the taxable property. ^^ 7 8 Inhabitants of Bernards Tp. v. Morrison. 133 U. S. 523, 10 Sup. Ct. 333, 33 L. Ed. 766. 70 NORTHERN NAT. BANK V. PORTER TP., 110 U. S. 608, 4 Sup. Ct. 254, 28 L. Ed. 258. 80 Marcy v. Oswego Tp., 92 U. S. 637, 23 L. Ed. 748; New Prov- idence Tp. V. Halsey, 117 U. S. 336, G Sup. Ct. 764, 29 L. Ed. 904. 81 Frances v. Howard Co., 54 Fed. 487, 4 C. C. A. 460; Valley Co. V. McLean, 79 Fed. 728, 25 C. C. A. 174; Quaker City Nat. Bank v. Nolan Co. (C. C.) 59 Fed. G60; Citizens' Bank v. City of Terrell, 78 Tex. 456, 14 S. W. 1003. See. also, Ratlibone v. Commissioners, 83 Fed. 125. 27 C. C. A. 477; Heed v. Commissioners (C. C.) 82 Fed. 716; Board of Com'rs of Lake Co. v. SutlifC, 97 Fed. 270, 38 C. C. A. 167; Board of Com'rs of Gunnison Co. v. E. H. Rollins & Sons, 173 78 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 3 He is charged with knowledge of the statutory reference to this source of information, and also of the facts therein disclosed ; and these records, rather than the recitals in the bonds, will prevail in any contention over their validity based upon allega- tions of excessive issue. ^^ U. S. 255, 19 Sup. Ct. 390, 43 L. Ed. 689; Chaffee County Com'rs v. Potter, 142 U. S. 355, 12 Sup. Ct. 216, 35 L. Ed. 1040. But where the limit of an issue of bonds is to be ascertained from records or data which are peculiarly within the knowledge and control of the officers of the municipality, or they have better access to the information than other persons, and can ascertain the amount with more cer- tainty than strangers, then the bonds will be held valid in the hands of bona fide holders. Chilton v. Gratton (C. C.) 82 Fed. 873. 82 Board of Com'rs of Lake Co. v. Sutliff, 97 Fed. 270, 38 C. C. A. 167; Board of Com'rs of Gunnison Co. v. E. H. Rollins & Sons, 173 U. S. 255, 19 Sup. Ct. 390, 43 L. Ed. 689; Chaffee County Com'rs v. Potter, 142 U. S. 355, 12 Sup. Ct. 216, 35 L. Ed. 1040; Valley Co. v. McLean, 79 Fed. 728, 25 C. C. A. 174; Shaw v. School Dist., 77 Fed. 277, 23 C. C. A. 169. The Supreme Court of the United States has necessarily come to be the chief source of the law of public securities, because of the great number of cases hitherto decided by it, and the preference of bondholders for federal decisions bringing nearly all cases of Im- portance into the federal tribunals. County bonds, being negotiable instruments, are generally in the hands of nonresident holders, to whom these courts are open on account of diverse citizenship. Hav- ing the choice of forum, they naturally chose the one whose Jurispru- dence is most acceptable to them. The state Supreme Courts have generally concurred with the federal authority in their decisions. They have not adopted in toto the recital doctrine in its full measure, but have rather heeded the wise monitions of Judge Dillon as to the rules which should prevail with reference to this class of negotiable paper. 1 Dill. Mun. Corp. §§ 549-553. The federal courts hold that the recitals of the bond are sufficient, and, in the hands of a bona fide holder, are conclusive evidence of compliance with the law and with conditions precedent. The state courts consider recitals as only prima facie evidence, and allow proof to show that legal requirements have not been observed. It may safely be assumed that the federal rules will decide nearly every contention over these securities, and probably come to be generally recognized in the state courts, with slight modifications yet to be made by the federal Supreme Court § 25) FISCAL MANAGEMENT. 79 FISGAIi MANAGEMENT. 25. The fiscal management of counties is eommonly pre- scribed xvith particularity in tlie general, permanent statutes of the state; and, in matters xirherein specific directions are not given, the analogies, rules, and practice of the state government, rather than of pri- vate corporations, is favored by the courts. Every state has its peculiar form of county organization, created by Constitution and statute, wherein are specified the various officers of the county government, and the duties and functions of each. The assessment, collection, and appropria- tion of county revenues, and the disposition of county funds, are specifically regulated and directed by those statutes which g^ve to each state its own peculiar rules of fiscal management. But since human foresight cannot provide for every possible contingency, many things are necessarily taken for granted. In the interpretation and application of these statutes the courts are averse to recognizing and following the rules and usages of private corporations,®^ but, because of the purely public char- acter and functions of counties, are inclined to conform rather to the rules and usages prevailing in the fiscal management of the state government, wherever practicable.'* Most county officers, indeed, charged with fiscal functions, represent both the state and the county, and, in matters of assessment and col- lection of revenue, perform the same duties for each. The appropriation and disbursement of the county revenue are pure- ly county functions, as is likewise the audit of county claims.®"* 88 Coles V. Madison Co., 1 111. 154, 12 Am. Dec. 161. 84 Milam Co. v. Bateman, 54 Tex. 165; People v. Power, 25 111. 187. 8" City of Nashville v. Towns, 5 Sneed (Tenn.) 186; Tippecanoe Co. V. Lucas, 93 U. S. 108, 23 L. Ed. 822. 80 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 3 County Claims. It is a general rule that, before suit can be brought upon any county claim, it must be duly presented for audit. ®^ In some states the rule prevails that the action of the county board oi audit is conclusive, unless appealed from, both upon the county and claimant.®^ In others, it is only prima facie evidence in favor of a claim, and the county may thereafter contest its validity ; *' while a rejection of the claim by the auditing au- thority amounts to a mere refusal to pay, and gives the claim- ant his right of action.*" Compensation of County Officers. County officers are compensated for their services either by salary, fees, or commissions fixed by law. This limit of com- pensation cannot be transgressed by the county by extra allow- 8« Autauga Co. v. Davis, 32 Ala. 703; Board of Sup'rs of Lawrence Co. V. Brookliaven, 51 Miss. G8; Board of Com'rs of Sullivan Co. v. Arnett, 116 Ind. 438, 19 N. E. 299; Armstrong v. Tama Co., 34 Iowa, 309; McCann v. Sierra Co., 7 Cal. 121; Waitz v. Ormsby Co., 1 Nev. 370; Board of Com'rs of Washington Co. v. Clapp, 83 Minn. 512, 86 N. W. 775; Shepard v. Easterling, 61 Neb. 882, 86 N. W. 941; Lorsbach v. Lincoln Co. (C. C) 94 Fed. 963. 87 Board of Com'rs of Warren Co. v. Gregory, 42 Ind. 32; Moser V. Boone Co., 91 Iowa, 359, 59 N. W. 39; Endriss v. Chippewa Co., 43 Mich. 317, 5 N. W. 632; Taylor v. Marion Co., 51 Miss. 731. See, also, State v. Griggsy, 6 Ohio N. P. 202; Taylor v. Davey, 55 Neb. 153, 75 N. W. 553; Trites v. Hitchcock Co., 53 Neb. 79, 73 N. W. 215; Lamberson v. Jefferds, 118 Cal. 363, 50 Pac. 403; State v. Headlee, 18 Wash. 220, 51 Pac. 369. But see Dean v. Saunders Co., 55 Neb. 759, 76 N. W. 450; Board of Com'rs of Huntington Co. V. Buchanan, 21 Ind. App. 178, 51 N. E. 939. 88 Leavenworth County Com'rs v. Keller, 6 Kan. 510; Ryan v. Dakota Co., 32 Minn. 138, 19 N. W. 653; Abernathy v. Phifer, 84 N. C. 711; Jones v. Commissioners, 57 Ohio St. 189, 48 N. E. 882, 63 Am. St. Rep. 710. 8» Gillett V. Lyon Co., 18 Kan. 410; Boswell v. Albany Co., 1 Wyo. 235; Murphy v. Steele Co., 14 Minn. 67 (Gil. 51); Waitz v. Ormsby Co., 1 Neb. 370; Clay Co. v. Chickasaw Co., 76 Miss. 418, 24 South. 975. § 25) FISCAL MANAGEMENT. 81 arice without statutory authority."" The basis of this rule is that the officer has, by taking the office, agreed to perform all the duties of the office, whether prescribed at the date of his in- duction or subsequently added by statute, for the compensation fixed by law,®^ and that these include all services performed in the line of his official employment.®^ It has accordingly been held that public corporations cannot lawfully allow extra com- pensation to attorneys, physicians, and other county officers for extraordinary services rendered by them in the line of their professional and official duty, though they were not foreseen or contemplated at the time of induction into office.®^ So, like- wise, where service had been rendered by persons in effecting the organization of a county, they cannot be treated as prelim- inary or quasi officers, nor can they receive compensation for 90 Gilmore v. Lewis, 12 Ohio, 281; Albright v. Bedford Co., 106 Pa. 582; Wayne Co. v. Reynolds, 126 Mich. 231, 85 N. W. 574. 86 Am. St. Rep. 541; Garfield Co. v. Leonard, 26 Colo. 145, 57 Pac. 693; Ellis v. Steuben Co., 153 Ind. 91, 54 N. E. 382; Grant County Com'rs v. Mc- Kinley, 8 Okl. 128. 56 Pac. 1044; Jones v. Commissioners, 57 Ohio St. 189, 48 N. E. 882, 63 Am. St. Rep. 710; The Judges' Salary Cases, 110 Tenn. 370, 75 S. W, 1061. holding statute unconstitutional, 911 Dill. Mun. Corp. § 233; Glavey v. U. S., 35 Ct. CI. (U. S.) 242. But see Id., 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247. 92 Heslep V. Sacramento, 2 Cal. 580; Debolt v. Cincinnati Tp., 7 Ohio St. 237; Pilie v. New Orleans, 19 La. Ann, 274; Hatch v. Mann, 15 Wend. (N. Y.) 44; Hobbs v. Yonkers, 102 N. Y. 13, 5 N. E. 778; Brissenden v. Clay Co., 161 111. 216, 43 N. E. 977, 9 3 Henderson Co. v. Dixon, 63 S. W. 756, 23 Ky, Law Rep. 1204: Sipler V. Clarion Co., 8 Pa. Dist. R. 2.53; Morgantown Deposit Bank V. Johnson, 108 Ky. 507, 56 S. W. 825; Carroll v. St Louis, 12 Mo. 444; Memphis v. Brown, 20 Wall. (U. S.) 289, 22 L. Ed. 264; Cal- lagan v. Hallett, 1 Caines (N. Y.) 104; Preston v. Bacon, 4 Conn. 471; Shattuck v. Woods, 1 Pick. (Mass.) 175; Smith v. Smith, ] Bailey (S. C.) 70. But see, contra, Huffman v. Greenwood Co., 23 Kan. 281; McBride v. Grand Rapids, 47 Mich. 236, 10 N. W. 353. The Judges' Salary Cases, 110 Tenn. 370, 75 S. W. 1061, declare un- constitutional and void a legislative act authorizing a county to pay additional salary to a judge of the state court sitting in that county only, ING.COBP. — 6 82 QUASI CORPORATIONS — COUNTIES, ETC. (Ch, 3 services rendered in promoting and completing the county or- ganization."* A de facto officer may lawfully claim and re- ceive official salary until his official right to the office has been adversely decided,*' but he cannot maintain an action for sal- ary."" A majority of cases hold that the de jure officer cannot recover from a county the salary paid by it to the de facto of- ficer,"' but has his action therefor against the ousted de facto »* Board of Com'rs of Fremont County v. Perkins, 5 Wyo. 166, 38 Pac. 915. »6 McVeany v. New York, 80 N. Y. 185, 36 Am. Rep. 600; Steuben- ville V. Gulp, 38 Ohio St. 18, 43 Am. Rep. 417; Michel v. New Or- leans, 82 La. Ann. 1094; Parker v. Dakota Co., 4 Minn. 59 (Gil. 30); Brinkerhofl: v. Jersey City, 64 N. J. Law, 225, 46 Atl. 170; Atchison V. Lucas, 83 Ky. 451; Manor v. State, 149 Ind. 310, 49 N. E. 160; Sullivan v. Haacke, 5 Ohio N. P. 26. The acts and judgments of a de facto officer are as valid and binding as though performed and rendered by an officer de jure. Dredla v. Baache, 60 Neb. 655, 83 N. W. 916 ; Morford v. Territory, 10 Okl. 741, 63 Pac. 958, 54 L. R. A. 513. See, also, Wilson v. Brown, 58 S. W. 595, 59 S. W. 513, 22 Ky. Law Rep. 708. »8 Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280; Romero v. United States, 24 Ct. CI. (U. S.) 331. See Farrell V. Bridgeport, 45 Conn. 191; City of Vicksburg v. Groome (Miss.) 24 South. 306. The charter of Jersey City provided for the appointment of a single person as city attorney. Two persons acted in that capacity as de facto officers. It was held that, while the acts of each were valid with respect to sti'angers, neither could maintain a suit for official salary. City of Jersey City v. Erwin, 59 N. J. Law, 282, 35 Atl. 948. 97 Greeley Co. v. Milne, 36 Neb. 301, 54 N. W. 521, 19 L. R. A. 689. 38 Am. St. Rep. 724; Nichols v. MacLean, 101 N. Y. 526, 5 N. B. 347. 54 Am. Rep. 730; Parker v. Dakota Co., 4 Minn. 59 (Gil. 30). If, during the incumbency of an officer de facto, and before any judgment of ouster has been rendered against him, the city or county of which he is such officer de facto pays him the salary of the office, a very decided preponderance of authorities sustains the position that by means of such payment the right of the officer de jure to collect his salary from such city or county is lost. Auditors of Wayne €o. v. Benoit, 20 Mich. 176, 4 Am. Rep. 3S2; Shaw v. Pima Co., 2 Ariz. 399. 18 Pac. 273; State ex rel. Nail v. Clarke, 52 Mo. 508; Smith V. Mayor. 37 N. Y. 518: Wrstborg v. Knnsas City, 64 Mo. 4!)^; § 25) FISCAL MANAGEMENT. 83 officer.*' The opposite view has been strongly maintained in municipal decisions in several states.*' McVeany v. Mayor, 80 N. Y. 185, 36 Am. Rep. 600; Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. 168; Steubenville v. Gulp, 38 Ohio St. 23, 43 Am. Rep. 417; Saline County Com'rs v. Anderson, 20 Kan. 298, 27 Am. Rep. 171. If a judgment of ouster has been entered against an officer de facto, and salary is thereafter paid to him, the officer de jure may maintain an action therefor against the city or county, notwith- standing such payment. McVeany v. New York, supra. If none of the salary has been paid to the officer de facto, the officer de jure, although he performs no duties of the office, may maintain an action against the city and county for the salary and emoluments thereof. Comstock v. Grand Rapids. 40 Mich. 397. A county or municipality which has paid a salary to a de facto officer, who performed the duties of the office under color of title, while the right to it was in litigation, cannot be held liable there- for again to another who may thereafter establish his title to the office. Fuller v. Roberts Co., 9 S. D. 216, 68 N. W. 30S. But in Tennessee and California it has been in several cases held that a de jure officer can maintain an action against a city, county, or other public body charged with the duty of making payment of the salary office for the payment of such salary, where it has been paid to a de facto officer. City of Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Savage v. Pickard, 14 Lea (Tenn.) 46; People v. Smith, 28 Cal. 21; Carroll v. Siebenthaler, 37 Cal. 193. »8 In an action by a de jure officer against a person wrongfully in possession of the office for fees received by the incumbent, plain- tiff is entitled to recover the entire amount received by defendant, though the value of defendant's services equals the fees received. Wenner v. Smith, 4 Utah, 238, 7 Pac. 293. If he has in fact received the emoluments of the office, he has no right whatever to retain them, and he may be compelled to account therefor to the officer de jure, in any appi'opriate form of action. Douglass V. State, 31 Ind. 429; Lawlor v. Alton, 8 Ir. R. C. L, IGO; Mayfield v. Moore, 53 111. 428, 5 Am. Rep. 52. An officer de facto is not entitled to the salary of the office, and. 99 City of Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Ward v. Marshall, 96 Cal. 155, 30 Pac. 1113, 31 Am. St. Rep. 198; Kempster v. Milwaukee, 97 Wis. 343. 72 N. W. 743; iJir- sen V. St. Paul, 83 Minn. 473, 86 N. W. 459. See Dickerson v. City of Butler. 27 Mo. App. 9. 84 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 3 County Revenues. County revenues are generally divided into distinct funds for separate purposes, such as schools, roads, bridges, buildings, and current expenses, and claims allowed are charged to the proper fund and warrants drawn accordingly. The county treasurer can pay a warrant only out of the fund upon which it is drawn ; and, if the fund be insufficient or exhausted, he can- not pay out of any other special fund,^°° but may pay out of a general fund in his hands unappropriated for that year, or out of the particular fund collected the ensuing year. Failure to pay the claim on demand authorizes suit and judgment against the county.^*^ although he may faithfully discharge Its duties, he cannot main- tain an action against the city or county for the compensation to which he would have been entitled if he were an officer de jure. McCue V. Wapello Co., 56 Iowa, 698, 10 N. W. 248, 41 Am. Rep. 134; Matthews v. Supervisors, 53 Miss. 715, 24 Am. Rep. 715; Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. 168. In Booker v. Donohoe, 95 Va. 359, 28 S. E. 584, it was held that one elected to an office, but excluded therefrom by an intruder, who collected the fees and emoliunents pertaining thereto, may recover against such intruder in an action of indebitatus assumpsit, though he had not previously qualified as such officer by taking the oath aud executing the bonds prescribed by law. In New Jersey an officer de jure cannot recover from an officer de facto the emoluments of office received by the latter while iu the discharge of its duties in good faith, and in the belief that be was entitled to the office and its emoluments. Stuhr v. Curran, 44 N. J. Law, 181, 43 Am. Rep. 353. See, also, Kreitz v. Behrensmeyer, 149 111. 496, 36 N. E. 983, 24 L. R. A. 59; Bier v. Gorrell, 30 W. Va. 95, 3 S. E. 30, 8 Am. St. Rep. 17; Hunter v. Chandler, 45 Mo. 452; Petit v. Rousseau, 15 La. Ann. 239. 100 Campbell v. County Court, 76 Mo. 57; People v. Wood, 71 N. Y. 371; CLARK v. DES MOINES, 19 Iowa, 199, 87 Am. Dec. 423; Pease v. Cornish, 19 Me. 191, 101 Cobb Co. V. Adams, 68 Ga. 51; Curtis v. Cass Co., 49 Iowa, 421; Taylor v. Marion Co., 51 Miss. 731; CLARK v. DES MOINES, supra. See Modoc Co. v. Madden, 120 Cal. 655, 52 Pac. 812. ^ 26) TAXATION. 85 TAXATION. 26. Tlie power of taxation is an attribute of sovereignty, and can therefore be exercised only for public purposes, and by officers and agencies created and thereunto au- thorized by IsLW. Counties possess only such measure of this power as is ex- pressly conferred upon them by statute for the pur- poses therein prescribed. Assessment. The elements constituting- taxation are assessment, levy, and collection. These can be exercised by the county only upon the property and persons within its limits.^"* A single assess- ment of the property in a county is generally provided by law as the basis of all taxes levied — state, county, and town or township. In states where town and township functions are most important, assessment is made by officers of those organ- izations constituting the county. In other states the assess- ment is made by a county officer or county officers. The mode and manner of such assessment are prescribed and regulated by statute law. To insure a just apportionment of the burden of taxation, state and county boards of equalization are provid- ed, which have general authority to correct errors of assess- 102 Cooley, Const. Lim. (6th Ed.) pp. 615-621; Sangamon & M. R. Co. V. Morgan Co., 14 111. 163, 56 Am. Dec. 497; Mills v. Thornton. 26 111. 300, 79 Am. Dec. 377; Carrier v. Gordon, 21 Ohio St. 605; Blood V. Sayre, 17 Vt. 609; Wells v. City of Weston, 22 Mo. 384. 66 Am. Dec. 627; Swift v. Newport, 7 Bush (Ky.) 37; Morford v. Unger, 8 Iowa, 82. Injunction will lie, at the suit of a taxpayer, to restrain a county from incurring expense for equipping a free ferry outside the county, it having no authority to establish such a one. Johnston v. Sacramento Co., 137 Cal. 204, 69 Pac. 962. See Northwestern Lumber Co, v. Chehalis Co., 25 Wash. 95. 64 Pac. 909, 54 L. R. A. 212, 87 Am. St. Rep. 747; Barnes v. Woodbury, 17 Nev. 383, 30 Pac. 1068; Ford v. McGregor, 20 Nev. 446, 23 Pac. 508; State V, Shaw, 21 Nev. 222, 29 Pac. 321. Also, see Denver & R. G. R. Co. V. Church, 17 Colo. 1. 28 Pac. 468, 31 Am. St. Rep. 252; Smith V. Mason, 48 Kan. 586, 30 Pac. 170. 86 QUASI COKPORATIONS COUNTIES, ETC. (Ch, 3 ment, to the end that such assessments may be uniform and equal. Errors made by assessments in the ownership or valua- tion of property are corrected by these boards upon appeal to them, and their decision is generally held to be final.^"^ Levy. The levy of taxes for county purposes, being a matter pe- culiarly of local knowledge and interest, is committed by the state to the county board or court, which is empowered to fix the rate of the annual levy.^°* In some states the statutes set no limit upon the amount of the county levy, but commit this subject entirely to the discretion of the county authorities. In others, the amount of the county levy is limited by law — as, for example, that the amount or rate for county purposes shall not exceed that for state purposes. Within this limit, the county authorities have full discretion in making the annual levy for county purposes.^"® This function is legislative, and not judicial, and from the action of the county authorities in fixing this levy there is no appeal. ^°® If the limit prescribed by law is transgressed by them, the taxpayers have recourse to the courts to enjoin collection of the excess beyond the law- 103 Fuller v. Gould, 20 Vt. 643; Longfellow v. Quimby, 29 Me. 196. 48 Am. Dec. 525; Davis v. Township, 1 Mich. N. P. 16; Stewart v. Maple, 70 Pa. 221; Smith y. Supervisors, 30 Iowa, 531; Bellinger v. Gray, 51 N. Y. 613; People v. Nichols, 49 111. 517. 104 Burroughs, Tax., § 133; CALDWELL v. JUSTICES, 57 N. C. 323 ; Perry v. Rockdale, 62 Tex. 457 ; STATE v. DENNY, 118 Ind. 382. 21 N. E. 252. 4 L. R. A. 79; Smith v. Aberdeen Corp., 25 Miss. 458; Osborne v. Mobile, 44 Ala. 493; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103. See State v. Headlee, 22 Wash. 126, 60 Pac. 126. 105 Cannon County Justices v. Hoodenpyle, 7 Humph. (Tenn.) 145; Smith v. Aberdeen Corp., 25 Miss. 458; Osborne v. Mobile, 44 Ala. 493; PEOPI^ v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; Hilliard v. Bunker, 68 Ark. 340, 58 S. W. 362. loe Grant v. Lindsay, 11 Heisk. (Tenn.) 666; Obion County Court V. Marr, 8 Humph. (Tenn.) 634. See Dodge v. Township, 107 Fed. 827, 46 C. C. A. 661, 54 L. R. A. 242. § 26) TAXATION. 87 ful limit, or recover same back from the officer.^"'' So, like- wise, if the county authorities levy a tax for any purpose not authorized by law.^°® This levy must be made by the board of county authorities in regular session, and entered upon its minutes of the proceeding. This record is a sine qua non of a valid levy.^"® It must specify the several county purposes for which the respective levies are made, composing the aggregate of the county levy.^^" The sums received from these various sources constitute separate funds of the county to be applied to the objects specified in the levy.^^^ A levy for a particular purpose by the county authorities amounts to an appropriation of that fund to that purpose, and, unless expressly authorized by statute, such fund cannot be diverted from that purpose by any county board or officer.^ ^^ 107 Vanover v. Davis, 27 Ga. 354; Fleming v. Mersbon, 36 Iowa, 413; City of Baltimore v. Porter, IS Md. 2S4, 79 Am. Dec. 686; City of Riclimond v. Crenshaw, 76 Va. 936; Bright v. Halloman, 7 Lea (Tenn.) 309. An interested taxpayer may sue to prohibit the negotiability of funds issued by county commissioners for the payment of the construction of a road, based on the ground that the bonds are void, as being in excess of the limit prescribed by law. Owen County Com'rs v. Spangler, 159 Ind. 575, 65 N. E. 743. See, also. Rogers v. Supervisors. 77 App. Div. 501, 78 N. Y. Supp. lOSl. 108 Holland v. Baltimore, 11 Md. 186, 69 Am. Dec. 195; City of Delphi v. Bowen, 61 Ind. 29; Leslie v. St. Louis, 47 Mo. 474. In Grannis v. Board, 81 Minn. 85, 83 N. W. 495, it was declared that a taxpayer of the county might maintain an action to restrain the performance of an ultra vires contract by the county officials. See, also, Franklin v. Baird, 9 Ohio S. & C. P. Dec. 715, 7 Ohio N. P. 571; Burness v. Multnomah Co., 37 Or. 460, 60 Pac. 1005. 108 Moser v. White, 29 Mich. 59; Farrar v. Fessenden, 39 N. H. 268; People v. Canal Co., 48 Cal. 143; West v. Whitaker, 37 Iowa, 598. But see Hilliard v. Bunker, 68 Ajrk. 340, 58 S. W. 362. 110 Cooley, Const. Lim. (6th Ed.) p. 636; Kennedy v. Montgomery Co., 98 Tenn. 179, 38 S. W. 1075; Clark v. Davenport, 14 Iowa, 494; Simmons v. Wilson, 66 N. C. 336; Lott v. Ross, 38 Ala. 156; State V. Ashland, 71 Wis. 502, 37 N. W. 809. 111 Tippecanoe Co. v. Cox, 6 Ind. 403; Campbell v. Polk Co., 49 Mo. 214; Boro v. Phillips Co., 4 Dill. (U. S.) 216, Fed. Cas. No. 1,663. 112 Carroll Co. v. United States, 18 Wall. (U. S.) 71, 21 L. Ed. 771; 88 QUASI CORPORATIONS COUNTIES, ETC, (Ch. 3 Collection. The collection of county taxes is regulated by the statutes of the state, and is generally made at the same time, in the same way, and by the same officer as the collection of the state reve- nue. In some states county revenue is collected by the town officer at the same time with, and in the same manner as, the town revenue, and the collection officers of the several towns constituting the county pay over the county portion of the pub- lic tax to the county treasurer. This county officer, whether called "treasurer," "trustee," or by any other name, is the legal custodian of the county funds, and disburses the same only upon warrants drawn upon the county treasury by the officer intrusted with the fiscal management of its afiFairs.^^* Collec- tion of county revenue from delinquent taxpayers is made in pursuance of the general statute of the state regulating this function. This is effected sometimes by enforcement of the tax lien upon the property, and sometimes by process against the owner.^^* The methods of assessment, levy, and collection in each state are regulated by the local statutes, and are so various and different in their details as to preclude the possi- bility of general treatment and consideration, and are too nu- merous and multiform for the compass of the present work. They can only be known and understood by a very careful study of the revenue statutes of the several states. Campbell v. Polk Co., 49 Mo. 214; Nashville, C. & St. L. R. Co. V. Franklin Co., 5 Lea (Tenn.) 707; Nashville, C. & St. L. R. v. Hodges, 7 Lea (Tenn.) 663; Smathers v. Commissioners, 125 N. C. 480, 34 S. E. 554. 113 A county treasurer cannot be compelled to receive money of which he is not made official custodian, nor to hold money, which he does receive, subject to any condition not imposed upon that fund by statute. Davis v. Patterson, 12 Pa. Super. Ct. 479. See Gartley v. People, 28 Colo. 227, 64 Pac. 208; Wilson v. Wichita Co., 67 Tex. 647, 4 S. W. 67. 114 2 Dill. Mun. Corp. §§ 815-822. See Smith v. Riding, 9 Houat (Del.) 22 Atl. 97. § 26) TAXATION. 89 Principles. The controlling decisions of the courts of the various states not only reflect the variety and differences in the systems of taxation, but are themselves sometimes inconsistent and irrecon- cilable on identical questions. For the most part, however, they concur in recognizing and establishing the following prin- ciples in regard to county taxation : (1) The county must be authorized by statute to levy the tax.""* (2) It must be levied by the county board designated and em- powered to perform that function.^ ^' (3) There must be an official record of the levy.**' (4) The tax can be levied only upon persons and property or privileges within the limits of the county.^ ^^ (5) The tax must be for a public purpose and a county ob- ject."" (6) There must be an assessment made by the officer or of- ficers lawfully authorized to perform that function.**" 116 stetson V. Kempton, 13 Mass. 272, 7 Am. Dec. 145; Daily v. Swope, 47 Miss. 367; LARAMIE CO. v. ALBANY CO., 92 U. S. 307, 23 L. Ed. 552; Thompson v. Lee Co., 3 Wall. (U. S.) 330, 18 L. Ed. 177; CALDWELL v. JUSTICES, 57 N. C. 323; City of Philadelphia V. Flanigen, 47 Pa. 21. 116 Bright V. Halloman, 7 Lea (Tenn.j 309; West v. Whitaker, 37 Iowa, 598; Gearhart v. DLxon, 1 Pa. 224. 117 People V. Canal Co., 48 Cal. 143; JiLnrtin v. Cole, 38 Iowa, 141; Farrar v. Fessenden, 39 N. H. 268; Moser v. White, 29 Mich. 59. 118 See note 102. 119 Louisville & N. R. Co. v. County Court, 1 Sneed (Tenn.) 637, 62 Am. Dec. 424; Leavenworth County Com'rs v. Miller, 7 Kan. 479, 12 Am. Rep. 425; State ex rel. North Missouri C. R. Co. v. County Court, 44 Mo. 504; Thompson v. Lee Co., 3 Wall. (U. S.) 327, 18 L. Ed. 177; Hill v. Forsythe Co., 67 N. C. 367; Weismer v. Village of Douglas, 64 N. Y. 91, 21 Am. Rep. 586. 120 Richmond & D. R. Co. v. Brogden, 74 N. C. 707; Stokes v. State, 24 Miss. 621; Middletown v. Berlin, 18 Conn. 189; Granger V. Parsons, 2 Pick, (Mass.) 392. 90 QUASI CORPORATIONS COUNTIES, ETC. (Ch. 3 (7) There must also be an official record of this assess- ment/'^^ (8) The tax levied must be equal and uniform upon all tax- able objects in the county, or, if a local tax, upon all property and persons to be especially benefited thereby. ^^^ (9) The official acts of county officers de facto in matters of taxation are valid and binding.^** I.EGISLATIVE CONTROL. 2T* Legislative delegation to the county of the inherent tax- ing power of the state, ^^ith the poxtrer to appropriate county revenues, may be repealed at any time by the legislature and resumed by the state, provided con- tractual obligations to third parties are not thereby impaired. Counties do not acquire vested rights in the powers conferred jpon them. As remarked by Nelson, J., in People v. Mor- ris,^ ^* "It is an unsound and even absurd proposition that political power conferred by the legislature can become a vested right, as against the government, in any individual or body of men." It has accordingl}'- been held that the legislature may repeal a grant of power to levy and collect wharfage which 121 Thui-stou V. Little, 3 Mass. 429; Bailey v. Ackerman, 54 N. H. 527; People v. Railroad Co., 49 Cal. 414; People v. Hagadorn, 104 N. Y. 516, 10 N. E. 891; Roe v. St. John, 7 Neb. 139; Downing v. Roberts, 21 Vt. 441. 122 City of East Portland v. Multnomah Co., 6 Or. 62; Sanborn v. Rice Co., 9 Minn. 273 (Gil. 2.58) ; Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; Wisconsin Cent. R. Co. v. Taylor Co., 52 Wis. 37, 8 N. W. 833; Louisiana v. Pilsbury, 105 U. S. 278, 26 L. Ed. 1090. 123 State V. Jacobs, 17 Ohio, 143; Laver v. McGlachlin, 28 Wis. 364; Scoville v. Cleveland, 1 Ohio St. 126; Rutledge v. Fogg, 3 Cold. (Tenn.) 554, 91 Am. Dec. 299; Cushiug v. Frankfort, 57 Me. 541; Washington Co. v. Miller, 14 Iowa, 584; Scott v. Watkins, 22 Ark. 564. 124 13 Wend. (N. Y.) 335, § 27) LEGISLATIVE CONTROL. 91 had been pledged by the corporation, together with other rev- enues for the payment of bonds issued to obtain money to maintain and improve the wharf; ^^' and generally it is said that the legislature has the same power over the revenues of a county as over the immediate funds of the state.^^® And so in regard to a fund set apart for disabled officers, it was said by Mr. Justice Field in Pennie v. Reis:^'^' "The direction of the state that the fund should be for the benefit of the po- lice officer or his representative, under certain conditions, was subject to change or revocation at any time at the will of the legislature. There was no contract on the part of the state' that its disposition should always continue as originally pro- vided. Until the particular event should happen upon which the money, or a part of it, was to be paid, there was no vested right in the officers to such payment." It has likewise been held that the legislature may require a county to deliver a certain portion of its revenue levied and collected for county purposes to a municipality within its borders to be used for street repairs, even though the Constitution of the state for- bade the legislature to authorize counties to levy taxes for any other than county purposes.^'^® So, also, it has been held com- petent for the legislature to direct restitution to the taxpayer of all property exacted from him by taxation, into whatever form the property may have been changed, so long as it remained under the control of the corporation.^-® In California it has been held that the legislature may refuse to provide funds to pay an existing indebtedness of the county, and may provide a county fund out of which the holders of the county paper may obtain fifty per cent, of the face value of the same when- 12 B City of St. Louis v. Shields, 52 Mo. 351. 126 Duval County Com'rs v. Jacksouville, 3G Fla. 19G, 18 South. 339, 29 L. R. A. 416; Richland Co. v. Lawrence Co., 12 III. 1. 127 132 U. S. 464, 10 Sup. Ct. 149, 33 L. Ed. 426. 128 Duval County Com'rs v. Jacksonville, 36 Fla. 196, 18 South. 339, 29 L. R. A. 416. 129 Tippecanoe Co. v. Lucas, 93 U. S. 108, 23 L. Ed. 822. 92 QUASI CORPORATIONS — COUNTIES, ETC. (Ch. 3 ever the county may choose to approve it.^'" But a county owing a debt of moral obHgation to another county for cer- tain expenses previously incurred may be compelled by act of legislation to satisfy the claim.' ''^ So, also, a county may be compelled by the legislature to levy taxes to build and main- tain a bridge over a stream within its boundaries,^ ^* to im- prove levees,^" and even to issue bonds for the purpose of raising money to be expended in the construction and main- tenance of highways within its limits.^'* The courts have likewise in numerous instances maintained that it is compe- tent for the legislature to compel a public corporation to levy a tax to pay to an individual a debt which is just and honorable, though not binding in law, nor even enforceable in equity.^" 180 People V. Morse, 43 Cal. 534. 181 Lycoming Co. v. Union Co., 15 Pa. 166, 53 Am. Dec. 575. 13 2 Carter v. Proprietors, 104 Mass. 236. 133 Eastern S. A. R. Co. v. Railroad Co., 52 N. J. Law, 267, 19 Atl. 722. 134 Jensen v. Board, 47 Wis. 298, 2 N. W. 320; People v. Board, 50 Cal. 561. 186 TOWN OF GUILFORD v. SUPERVISORS, 13 N. Y. 144; People V. Supervisors, 70 N. Y. 228; People v. Bm-r, 13 Cal. 343; CITY OF NEW ORLEANS v. GASLIGHT CO., 95 U. S. 644, 24 L. Ed. 521; Wrought Iron Bridge Co. v. Attica, 119 N. Y. 204, 23 N. E. 542; Hasbrouck v. Milwaukee, 21 Wis. 219, State v. Hampton, 13 Nev. 441; Vasser v. George, 47 Miss. 713; Sanborn r. Rice Co., 9 Minn. 273 (Gil. 258). In the leading case above cited, of TOWN OF GUILFORD v. SUPERVISORS, the claim had been expressly rejected by the voters at an election authorized by special act of the Legislature, which declared that their action should be final and conclusive. Judge Cooley justifies the legislative action in this case upon the ground that it is the right and duty of the state to see that the powers which it confers upon public corporations are not abused to the injury of those who have relied upon them, and to prevent repudia- tion by them of their just obligations. Cooley, Tax'n (2d Ed.) 685. For an elaborate opinion holding the contrary view, see State V. Tappan, 29 Wis. 604, 9 Am. Rep. 622. §28) QUASI COEPORATIONS — TOWNS, BTC. 9^ CHAPTER IV. QUASI CORPORATIONS (Continued). 28. Quasi Corporations Other than Counties. 29. New England Towns. SO. Townships. 81. School Districts. 32. Other Local Quasi Corporations. 33. Boards — Commissioners — Companies. QUASI CORPORATIONS OTHER THAN COUNTIES. 28. W^itliin the class of public quasi corporations are in- cluded, besides counties, all involuntary political sub- divisions of tbe state made for tbe convenience and e£&ciency of civil administration, and also all public organizations of ofiicers clothed ^vitb governmental authority, and charged with the performance of pub- lic duties. Two elements enter into the consideration of a quasi cor- poration — territory and persons.^ A corporation being a body of individuals, the latter element is the essential one. Dis- tinct territorial limits, if not absolutely essential, will gener- ally be found in every such corporation. The town, town- ship, school district, road district, and drainage district are familiar illustrations of minor quasi corporations ; ^ and in general it may be said that whenever the legislature lays off a distinct subdivision of the state, either under general or spe- cial law, for some particular governmental purpose or pur- poses, without the request or consent of the inhabitants, and invests them with the powers necessary therefor, a 1 1 Dill. Mun. Corp. § 40; Cooley, Const. Lim. (6th Ed.) p. 294. 2 HARRIS V. SCHOOL DIST., 8 Fost. (N. H.) 58; Beach v. Leahy, 11 Kan. 23; Inhabitants of Fourth School Dist. v. Wood, 13 Mass. 193 ; Littlewoit v. Davis, 50 Miss. 403 ; Bassett v. Fish, 75 N. Y. 303^ 94 QUASI CORPORATIONS TOWNS, ETC. (Ch. 4 quasi corporation is thereby created.' Again, whenever the legislature creates for any governmental purpose a board of officers, and charges them with the performance of public duties, whether for the state at large, or some portion thereof, such as a county, or a district embracing more or less than a county, a town or township, or a municipality, such board is generally treated as a quasi corporation. Illustrations of this are to be found in boards of education, of public works, boards of railroad and warehouse commissioners, and sanitary com- missions.* Where these public functions are performed by a single person, he is generally called an officer, though in Ten- nessee it has been ruled that the Governor is a quasi corpora- tion sole." But consistently with the logical conception of a corporation — that it is a body of individuals organized under law for a distinct and definite purpose — the courts usually treat a public board of officers, whether municipal, county, or state, if it be specially created for a particular governmental purpose, as a quasi corporation.' For convenience, these minor quasi corporations will be considered briefly in two groups: (a) those wherein the local subdivision is the promi- nent feature; (b) governmental boards or commissions. 8 School Town of Princeton v. Gebhart, 61 Ind. 187; CITY OF GALVESTON v. POSNAINSKY, 62 Tex. 118, 50 Am. Rep. 517; Fourth School Dist. v. Wood, 13 Mass. 193; Cooley, Const. Lim. (6th Ed.) pp. 294, 295. 4 A board of public works of a city is a quasi corporation, and the nature of its duties, laying out streets, establishing grades, sewers, etc., requires it to keep a record of its proceedings, although no such record is in terms provided for. Larned v. Briscoe, 62 Mich. 393. 29 N. W. 22; People v. Harper, 91 111. 357; Levy Court v. Coroner, 2 Wall. (U. S.) 501, 17 L. Ed. 851; Lower Board of Com'rs of Roads V. McPherson, 1 Speers (S. C.) 218; Scioto Com'rs v. Gherky Wright (Ohio) 493. 6 POLK V. PLUMMER, 2 Humph. 500, 37 Am. Dec. 566 ; Governor V. Allen, 8 Humph. 178 ; Felts v. Mayor of Memphis, 2 Head, 656. 6 Elliott, Mun. Corp. § 252; Board of El Paso County Com'rs v. Bish, 18 Colo. 474, 33 Pac. 184; White v. Charleston. 2 Hill (S. C.) 571; CITY OF DETROIT v. BLACKEBY, 21 Mich. 84, 4 Am. Rep. 450. ^ 20) KEW ENGLAND TOWNS. 90 NEW ENGLAND TOWNS. 29. The New England tovm, as the political unit of the state, closely resembles counties in other states, in charac- ter, poxpcrs, and organization. Being the most highly organized of all quasi corporations, it possesses in ad- dition most of the characteristics of a municipality, and thus in many respects is controlled by the lamr of municipal corporations. The New England town has been the subject of much legal discussion and judicial decision, as well as political panegyric. Though not of identical nature or uniform powers in the sev- eral New England states, it is recognized as of superior im- portance to the county in all of themJ The town is a con- stituent element of the county, not a subdivision of it. It is older than the county, and in Rhode Island is claimed to be old- er than the state.* It is the germ of political and social organ- ization. From the beginning it has claimed and exercised governmental powers for the support of churches and schools, as well as the preservation of peace and order, the construction and care of public roads and bridges, and the support of the poor.® Only the sovereign functions of government were left by this masterful community to the colony or the state, and even some of them it was inclined to exercise. The people governed, not by delegates or representatives, but in person in their annual assemblies.^" At these town meetings they de- termined the objects for which the town should appropriate T Dill. Mun. Corp. § 28. 8 See Arn. Hist. c. 7. » 1 Dill. Mun. Corp. § 30; Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145; ALLEN v. TAUNTON, 19 Pick. (Mass.) 485; Burrlll V. Boston, 2 CliCf. 590. Fed. Cas. No. 2,198. 10 "The marlied and characteristic distinction between a town orcanizatiou and that of a city is that in the former all of the atialified inhabitants meet, deliberate, act, and vote in their natural and personal capacities, whereas in a city government this is all done by their representatives." WARREN v. CHARLESTOWN, 2 GJray (Mass.) 101. 96 QUASI CORPORATIONS TOWNS, ETC. (Ch. 4 money, levied the taxes therefor, and chose officers to manage all their affairs.** Some towns exercised special powers not claimed by others. The general statutes of the several states have specified the powers to be exercised by the towns, and are to be regarded generally as the measure and enumeration of those powers.** They are not, however, held to be exclu- sive, but in several instances the New England courts have 11 Justice Gray, in Town of Bloomfield v. Bank, 121 U. S. 121, 7 Sup. Ct. 865, 30 L. Ed. 923, said: "The annual election of town oflScers, or any other act which the statutes require to be done by the inhabitants at each annual meeting, might perhaps be sutti- ciently proved by what was done at the meeting, without proving a special notice of- it in the warning. But with these exceptions, such a notice is a necessary prerequisite to the validity of any act of the town either at annual meetings or at a special meeting." See Cooley, Const. Lim. (6th Ed.) p. 223, note. 12 "Towns in Connecticut, as in the other New England states, differ from trading corporations, and even from municipal corpora- tions elsewhere. They are territorial corporations, into which the state is divided by the legislature from time to time, at its discre- tion, for political purposes and the convenient administration of the government; they have those powers only which have been ex- pressly conferred upon them by statute, or which are necessary for conducting municipal affairs, and all the inhabitants of the town are members of the quasi corporation." Town of Bloomfield v. Bank, 121 U. S. 121, 7 Sup. Ct. 865, 30 L. Ed. 923. See Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145; Hooper v. Emery, 14 Me. 375 ; Coolidge v. Brookline, 114 Mass. 592. Likewise, Chief Justice Perley, of New Hampshire, in a leading case, declared : "Towns are general, political, and territorial divisions of the county, with uniform powers and duties, defined and varied from time to time by general legislation. Towns in New England do not hold their powers ordinarily under any grant of the govern- ment to the individual corporation, or by virtue of any contract with the government, or upon any condition, express or Implied. The^ give no assent in their corporate capacity to the laws which have imposed their public duties or fixed their territorial limits." EASTMAN V. MEREDITH, 36 N. H. 284, 72 Am. Dec. 302. And Chief Justice Shepley, in Hooper v. Emery, 14 Me. 375, says: "The inhabitants of eVery town in this state are declared to be a body politic and corporate by the statute; but these corporations de § 29) NEW ENGLAND TOWNS. 97 ruled that a power might exist in a town by usage or prescrip- tion.^' Statutory Town Functions. The principal statutory powers ordinarily exercised by a New England town are (1) To sue and be sued in the corporate name and capacity ; (2) To acquire and hold real estate and personal property for the public use of the inhabitants, and also in trust for the support of the town schools, and to promote education therein : (3} To make contracts for the exercise of the corporate powers, and to dispose of corporate property ; (4) To appropriate out of town revenues money for the fol- lowing purposes : (a) Support of town schools ; (b) care of the poor; (c) construction and repair of highways and bridges; (d) the destruction of noxious anim?ds ; (e) purchase and care of cemeteries ; (f) the writing and publication of town his- tories, and the erection of buildings or monuments to the mem- ory of soldiers and sailors ; (g) all other necessary charges arising in the town government; ^* (5) To levy and collect taxes for town purposes; (6) To enact town ordinances.^" rive none of their powers from, nor are any duties imposed upon tliem by, the common law. They have been denominated quasi cor porations, and their whole capacity, powers, and duties are derived from legislative enactment." These and kindred declarations of the law by the New England judges seem plainly to authorize the statement of the text that these towns are not municipal, but quasi, corporations. And yet it is not easy to distinguish the Massachusetts town from the ordinary municipality, when we consider its powers as declared by the Massachusetts General Statutes of 1860, whereby they are de dared to be bodies corporate, with the powers enumerated in the text. la Willard v. Xewburyport. 12 Pick. (Mass.) 'I'll; Spaulding v. Lowell. 23 Pick. CNlass.) 71. 14 1 Dill. Mun. Corp. (4th Ed.) p. 47. note; Rutland v. West Rut- land, GS Vt. 15.5, 34 Atl. 422. 15 Easthampton v. Hill, 1{;2 .Mnss. :;()2. 3S .\. E. .-)()2: Lovell v. IXG.CORP. — 7 98 QUASI CORrORATIONS — TOWNS, ETC. (Ch. 4 Tozvn Meetings. The annual town meeting is held at an appointed time, either in the spring or fall. It is composed of the qualified voters of the town. Special town meetings may be called on due notice by the selectmen or other statutory authority. At the annual meeting it is competent to elect the town officers for the ensuing year, levy the annual taxes, make appropria- tions for town purposes, and transact any other corporate business. At the special meeting only such business may be transacted as is expressed in the warrant calling the meeting. The selectmen constitute the governing board, and the officers are a town clerk, treasurer, collector, assessors, constables, and others of less importance,^' "Towns are subject by the com- mon law to an indictment for neglect of duties enjoined upon them, but are not liable to an action for such neglect unless the action be given by some statute." " TO^VNSHIPS. 30. The toiirnsliip is a subdivision of a county vested ivitli cer- tain functions of local government, closely correlated Trith the county government, and less highly organ- ized than the Neiv England town. The township exists as an agency of the state government in a few of the Eastern states, in all of the Western states, from Ohio to the Pacific Ocean, and in a few of the states of the South. Its officers consist of a board of supervisors or trustees, in lieu of selectmen, with others the same as in the Charlestown, 66 N. H. 584, 32 Atl. 160. See State v. Hoff (Tex. Civ. App.) 29 S. W. 672; State v. Tweedy, 115 N. C. 704, 20 S. E. 183. 18 1 Dill. Mun. Corp. (4th Ed.) p. 48, note 2. Relative to necessity for specification in warrant calling special meeting of such business as can be transacted at such meeting, see Smith v. Town of Westerly, 19 R. I. 437, 35 Atl. 520; Arnold v. Price, Id. But see Mowry v. Mowry, 20 R. I. 74, 37 Atl. nOG. 17 MOWER V. LEICESTr:R. 9 Mass. 247. 6 Am. Dec. 63. ^ 30) TOWNSHIPS. i)l) New England towns. It possesses only such functions and powers, and is subject to such HabiHties only, as are provided by statute.^* It is not governed by town meeting, but by a board of supervisors or trustees and the officers chosen at annual election. It is not so old as the county, but is organ- ized within it under the government survey made generally by the federal government previous to its settlement. In the general plan of survey of the public lands of the United States a township is a division of territory six miles square, contain- ing thirty-six sections, of which section sixteen is devoted to the public schools.^" Generally in the Western states the government survey is the basis of the state organization of a township ; but in some of the states, as in Tennessee, there are no quasi corporations of this name, although a consider- able portion of the territory was surveyed by the general gov- ernment in township form. The duties of the township offi- cers are prescribed by general statute, and sometimes they are expected and required to perform county and even state func- tions. The statutes creating, organizing, and regulating town- ships in the various states are not identical ; but they are so nearly alike as to give general uniformity to this agency of government in all the states where it exists. Township Bonds. Many cases have been before the Supreme Court of the United States, involving the validity of township bonds issued under the statutes of different states empowering townships to subscribe in aid of the construction of railroads and other public improvements, in which the powers, functions, and fiscal 18 Town of Bloomfield v. Bank, 121 U. S. 121. 7 Sup. Ct. Sr;",. .30 L. Ed. 92.3 ; Hooper v. Emery, 14 Me. 375 ; Vail v. Anienia. 4 X. D. 23!), 59 N. W. 1();)2. vSee, also, Doolittle v. ^^•;llpole. CT N. H. 554, 38 Atl. 19; Shoe v. Township of Nother Providence, 3 Pa. Super. Ct. 187, 39 Wkly. Notes Cas. 4.37 : Cbkago. B. & Q. R. Co. v. Klein. 52 Neb. 25S, 71 N. W. 10G9; Mueller v. Town of Cuvour, 107 Wis. 599, 83 N. \Y. 944. 19 Rev. St. U. S. § 2305 [U. S. Couip. St. 1901, p. 1471]. iOO QUASI CORPORATIONS — TOWNS, ETC. (Cll. 4 management of these quasi corporations received careful ex- amination at the hands of this great tribunal. The general result of these decisions has been to place townships, in the matter of their contracts and liabilities, upon substantially the same footing with counties ; and to hold that township bonds, as to the power and regularity of issuance, the authority of officers, the effect of recitals in the bond, and the duty of the purchaser to take notice of constitutional and statutory pro- visions, are controlled by the same general principles of law as those applicable to county bonds, as hereinbefore ex- plained.'''* SCHOOL DISTRICTS. 31. Scliool districts are the most numerons and universal of all tlie local subdivisions of tlie state made for public purposes, and belong to the lowest of the quasi corpo- ^ rations in the scale of organization. Nearly every town, township, and civil district in the United States is subdivided into school districts, which are created and organized for the purpose of establishing and maintainin;:;^ the free public school system of the state. Their powers and functions are generally uniform in each state, but not in the several states.^^ In nearly all the states provisions are made 20 Ante, § 24, and notes; HARSHMAN v. BATES CO., 92 U. S. 569, 23 L. Ed. 747; Cass Co. v. Johustou, 95 U. S. 3U0, 24 L. Ea. 416; Pompton Tp. v. Cooper Union, 101 U. S. 196, 25 L. Ed. S03: Menasha v. Hazard, 102 U. S. 81, 26 L. Ed. 83; TOWN OF OREGON V. JENNINGS, 119 U. S. 74, 7 Sup. Ct. 124, 30 L. Ed. 323; Barnum V. OUolona, 148 U. S. 393, 13 Sup. Ct. 638, 37 L. Ed. 495; Folsom V. Ninety-Six, 159 U. S. 611, 16 Sup. Ct. 174, 40 L. Ed. 278; Kreger V. Towuslaip of Bismarck, 59 Minn. 3, 60 N. W. 675; Robinson v. Fowler, 80 Hun, 101, 30 N. Y. Supp. 25; Ratbbone v. Hopper, 57 Kan. 240, 45 Pac. 610, 34 L. R. A. 674. 21 In the Dakotas the school district is expressly constituted a body corporate by the provisions of the statutes. In Michigan and Arkansas the courts declare the school district a body corporate, with power to seek relief in equity. School Dist. No. 3 v. School Dist.. 63 Mich. 51, 29 N. W. 489; School Dist. No. 3 v. Bodenhamer. 4o § 31) SCHOOL DISTRICTS. 101 for different kinds of school districts, applicable to urban and rural population, and the peculiar method of operation of these quasi corporations depends upon the school statutes enacted in the several states. Generally the organization con- sists of a board of commissioners or school trustees for each district, chosen by the people, and invested with the power of selecting the teachers for the school or schools of the dis- trict, fixing the salary, auditing the teachers' claims therefor, and giving the warrant upon the school fund for paying the same. They are also the custodians of the schoolhouses and other school property of the district, and empowered by law to erect new school buildings when necessary, and to purchase school supplies for their district. The boundaries of the school district are fixed in some states by the legisla- ture, in others by the county government, and yet in others by the town or township government, as the Constitution may provide. The school funds are kept in some states in the county treasury, in others in the town or township treasury, and in others by the treasurer of the school district. Existence — Managem ent. It has been held that the existence of a school district may be proved by prescription.^^ All that is necessary in such a case is to show that the district has long been in existence, Ark. 140. In Kansas it is declared to be a quasi corporation, and tliis is the current opinion. Beacti v. Lealiy, 11" Kan. 23. And to the same effect are People v. School Trustees, 78 111. 136; Littlewort V. Davis, 50 Miss. 403; School Dist. No. 7 v. Thompson, 5 Minn. 280 (Gil. 221); School Dist. No. 3 v. Mocloon, 4 Wis. 79; Wharton v. School Directors, 42 Pa. 3.58; Rapelye v. Van Sickler, 1 Edm. Sel. Cas. (N. Y.) 175. See Holmes & Bull Furniture Co. v. Hedges, 18 Wash. 696, 43 Pac. 944. 22 Halfway River School Dist. v. Bradley, 54 Conn. 74, 5 Atl. 861; Sherwin v. Bugbee, 16 Vt. 439; Bassett v. Porter, 4 Cush. (Mass.) 487; Bow v. Allenstown, 34 N. H. 351, 69 Am. Dec. 489; Robie V. Sedgwick, 35 Barb. (N. Y.) 319. As to power of school district to issue bonds, see Holllday v. Hilderbrandt, 97 Iowa, 177, 66 N. W. 89; Hamilton v. San Diego Co.. 102 QUASI CORPORATIONS TOWNS, ETC. (Ch. 4 and has been pul)licly known and recognized as such." They have no powers derived from usage, but only the powers ex- pressly granted to organizations of this class, and such im- plied powers as are necessary to enable them to perform their functions.-* They may also be given corporate character and status by implication.^^ In determining the question whether the school district, or its officers, possess a particular power under statute, the courts lean towards a strict construction of the law; ^^ but, where the power is obviously conferred, such liberal interpretation is given as will further the end in view.^'^ 108 Cal. 273, 41 Pac. 305; Applegate v. Board, 58 N. J. Law, 347, 33 Atl. 923. Also, Jamison v. School Dist. (C. C.) 90 Fed. 387. On the subject of organization of school districts, see State v. Duerr, 11 Ohio Cir. Ct. R. 303; Board of Sup'rs of Bedford Co. v. High School, 92 Va. 292, 23 S. E. 299; School Dist. No. 4 v. Smith, 90 Mo. App. 215. 28 HARRIS V. SCHOOL DIST., 28 N. H. 58; Conklin v. School Dist, 22 Kan. 521. 24 Wilson V. School Dist, 32 N. H. 118; Beach v. Leahy, 11 Kan. 30; Scales v. Chattahoochee Co., 41 Ga. 225; Rogers v. People, 68 111. 154. Where a statute requires that a contract be in writing, a school district cannot be made liable on an implied contract for the value of services of a janitor in sweeping a district schoolhouse and keep- ing fires therein. Taylor v. School Dist., 1 Mo. App. Rep'r, 98, 60 Mo. App. 372. 25 1 Dill. Mun. Corp. § 43; Inhabitants of Fourth School Dist v. Wood, 13 Mass. 193. 28 Rogers v. People, 68 111. 154; HARRIS v. SCHOOL DIST., 28 N. H. 58; Beach v. Leahy, 11 Kan. 30; Scales v. Chattahoochee County, 41 Ga. 225; Black v. Cornell, 30 Mo. App. 641; Weitz v. Inde- pendent Dist, 79 Iowa, 423, 44 N. W. 696; Parr v. Greenbush, 72 N. Y. 463; Farmers' & Merchants' Nat. Bank v. School Dist., 6 Dak. 255, 42 N. W. 767. 27 Sanborn v. School Dist., 12 Minn. 17 (Gil. 1); Hazen v. Lerche, 47 Mich. 626, 11 N. W. 413; White v. School Dist. (Pa.) 8 Atl. 443; School Dist. V. Bennett, 52 Ark. 511, 13 S. W. 132; State v. Tiede- mann, 69 Mo. 515; McCortle v. Bates, 29 Ohio St 419, 23 Am. Rep. 758; Sullivan v. School Dist., 39 Kan. 347, 18 Pac. 287. See Singleton v. Austin. 27 Tex. Civ. App. 88, 65 S. W. 686; Kraft § 31) SCHOOL DISTRICTS. 103 School districts must, however, perform their functions in the manner pointed out by law ; and so, where the statute requires a written contract, an oral contract cannot be prov- en.^* Nor is a teacher's contract valid for a greater time than that authorized by statute.^® In regard to contracts for school supplies, the same general rule prevails as in other corpora- tions. If the directors transgress the limit of their author- ity in making such a contract, the contract is invalid, and can- not be enforced over the objection of the district.^" But if supplies or teacher's services have been received and used for the benefit of the school, an action of assumpsit will lie V. Board, 67 N. J. Law, 512, 51 Atl. 483; Stevens v. Campbell, 26 Tex. Civ. App. 213, 63 S. W. 161. 28 Dickinson v. Pouglikeepsie, 75 N. Y. 65; Weitz v. Independent Dist, 79 Iowa, 423, 44 N. W. 696; Capital Bank v. Scliool Dist, 1 N. D. 479, 48 N. W. 863; School Town of Milford v. Powner, 126 Ind. 528, 26 N. E. 484; Cleveland v. Amy, 88 Mich, 374, 50 N. W. 293; Roseboom v. School Tp., 122 Ind. 377, 23 N. E. 796; Black v. Cornell, 30 Mo. App. 641. A statute provided that contracts with school districts should be in writing. An oral contract with a teacher to conduct the school lor a month after the expiration of his written contract was held to be unenforceable, though such teacher had performed the services. Hutchins v. School Dist., 128 Mich. 177, 87 N. W. 80. Under a statute providing that no city, school townsliip, or school district shall make any contract unless it is in writing and subscribed by the parties, all conU'acts for the employment of teachers in public schools must be so executed. Wetmore v. Board, 86 Mo. .1pp. 362; Faulk v. McCartney, 42 Kan. 695, 22 Pac. 712. 28 White v. School Dist. (Pa.) 8 Atl. 443; School Com'rs of Wash- ington Co. V. Wagaman, 84 Md. 151, 35 Atl. 85; Doss v. Wiley. 72 Miss. 179, 16 South. 902; Hill v. Swinney, 72 Miss. 248, 16 South. 497. But see, contra. School Town of Milford v. Zeigler, 1 Ind, App. 138, 27 N. E. 303. 80 Middleton v. Greeson, 106 Ind. 18, 5 N. E. 755; School Dist. V. Bennett, 52 Ark. 511, 13 S. W. 132; Barry v. Goad, 89 Cal. 215, 26 Pac. 785;- School Dist. No. 18 v. Brown. 2 Kan. App. 309, 43 Pac. 102; State v. Freed, 10 Ohio Cir. Ct. R. 294, 3 Ohio Dec. 314. 104 QUASI CORPORATIONS TOWNS, ETC. (Ch. 4 for the value of goods or services so had and received. ^^ Irregular or unauthorized contracts may be ratified and vali- dated, either by special resolution of the board or by acquies- cence.^^ Dii ectors. The board of school directors is constituted by law the gen- eral agency for the management of the affairs of the school district. Their powers are generally prescribed in the school law. They have general direction over the schools of the district. In matters of fundamental importance, such as changing the district boundaries or incurring obligations for extraordinary expenses, they are usually required to obtain an expression of popular consent by public election. ^^ In 31 Davis V. School Dist., 81 Mich. 214, 45 N. W. 989; School Town of Milford v. Powner, 126 lud. 528, 26 N. B. 484; Hull v. School Dist, 82 Iowa, 686, 46 N. W. 1053, 10 L. R. A. 273; Cobb v. School Dist., 63 Vt. 647, 21 Atl. 957; Andrews v. School Dist, 37 Minn. 96, 33 N. W. 217. A salesman of school apparatus induced a majority of the school board to sign a contract for the purchase of school supplies. Each member signed the contract separately and without consultation with the others. No deceit was used in obtaining the signatures of the various members. The supplies were accepted and used by the district, and it was sought to charge the district with payment therefor. Held that, even if the circumstances attending the ex- ecution of the contract rendered it opposed to public policy, the acceptance and retention of the benefit by the district prevented it from taking advantage of such objection. Johnson v. School Corp., 117 Iowa, 319, 90 N. W. 713. 8 2 Trustees of Schools of Tp. 24 v. Trustees, 81 111. 470; Everts v. District Tp.. 77 Iowa, 37, 41 N. W. 478, 14 Am. St Rep. 264; Norris V. School Dist., 12 Me. 293, 28 Am. Dec. 182; Eowell v. School Dist, 59 Vt 658, 10 Atl. 754; Johnson v. School Corp., 117 Iowa, 319, 90 N. W. 713. See First Nat Bank v. Felknor (Tenn. Ch. App.) 48 S. W. 392. 83 Black V. Cornell, 30 Mo. App. 641; Capital Bank v. School Dist., 1 N. D, 479, 48 N. W. 363; Gentle v. Board, 73 Mich. 40, 40 N. W. 928; Smith v. Proctor, 53 Hun, 143, 6 N. Y. Supp. 212; Briggs v. Borden, 71 Mich. 87, 38 N. W. 712. The officers of a school district cannot by contract create a dis- § 31) SCHOOL DISTRICTS. i05 the management of current affairs of the district, however, they are vested with full discretion within the limits of the annual school appropriation.^* Unless the statute confers the authority upon some other officer or board, it is their duty, besides employing the teacher, to prescribe the curriculum, and adopt the text-books to be used, and purchase the neces- sary schpol supplies.*^ They do not possess the implied powers of directors of private corporations,^® but their regu- lar contracts within the limits of their authority are binding upon the district.'^ trict liability for the building of a schoolhouse, unless first author- ized to do so, and a site selected, and out of the funds provided for that purpose by the electors of the district. School Dist. No. 80 v. Brown. 2 Kan. App. 309, 43 Pac. 102. See Barrett v. Coleman, 12 Tex. Civ. App. GG3, 35 S. W. 418; Stadtler v. School Dist., 61 Minn. 259, 63 N. W. 638; People v. Keechler, 194 111. 236, 62 N. E. 525. Also. Hale v. Brown, 70 Ark. 471, 69 S. W. 260. As to control of school property, see Bender v. Streabich, 17 Pa. Co. Ct. R. 609. 34 Jefferson School Tp. v. Litton, 116 Ind. 467, 19 N. E. 323; Mack- lin v. Trustees, 88 Ky. 592, 11 S. W. 657; People v. McFall, 26 111. App. 319. 3 5 Hanover School Tp. v. Gant, 125 Ind. 557, 25 N. E. 872; Withe- rop V. Board, 7 Pa. Co. Ct. R. 451; Fatout v. School Com'rs. 102 Ind. 223. 1 N. E. 389; State v. Board, 35 Ohio St. .3iiS; State v. School Uist, 31 Neb. 552, 48 N. W. 393; Canipana v. Calderlicad, 17 Mont. 548, 44 Pac. 83, 36 L. R. A. 277. In State v. Freed, 10 Ohio Cir. Ct. R. 294, 3 Ohio Dec. 314, it was held that the expression "all the necessary apparatus" did not in- clude philosophical apparatus for the demonstration of different branches of education. See, also, Honaker v. Board, 42 W. Va. 170, 24 S. E. 544, 32 L. R. A. 413, 57 Am. St. Rep. 847; Jones v. School Dist, 110 Mich. 3G3, 68 N. W. 222; Butler v. School Dist., 15 Pa. Co. Ct. R. 291. 36 Cross v. School Directors, 24 111. App. 191; Shakcsppar v. Smith, 77 Cal. 638, 20 Pac. 294, 11 Am. St. Rep. 327; Andrews v. School Dist, 37 IMinn. 96, 33 N. W. 217; Honey Creek School Tp. v. Barnes. 119 Ind. 213, 21 N. E. 747. 3T Andrews v. School Dist, 37 Minn. 96, 33 N. W. 217; Independent Dist of Flint River v. Kelley, 55 Iowa, 568, 8 N. W. 426; Shank- IOC QUASI CORPORATIONS — TOWNS, ETC. (Ch. 4r OTHER LOCAL QUASI CORPORATIONS. 32. Besides counties, towns, tow^nsliips, and school districts, there are other local organizations created by statute for purely public purposes, not declared to be corpo- rations, and yet possessing suiBcient corporate at- tributes to be characterized as quasi corporations. The public quasi corporation, from its very nature, is not susceptible of accurate definition. It is almost a corporation for public purposes. The New England town we have seen to be very nearly a full corporation — the county, township, and school district, in the order mentioned, slightly further removed ; and yet all are recognized as distinct entities, en- titled to assert their legal rights and incur legal liabilities in corporate capacity and name, cognizable in the courts of the state. Just how near this local agency of government must approximate a municipality — how many corporate character- istics it must have to entitle it to the name of quasi corpora- tion — has been hitherto, and probably will continue to be, left by the courts without exact definition. Just as in the past has been done, so in the future the courts will probably de- clare sucli organization a quasi corporation, whenever such declaration is not repugnant to settled law, and is necessary to the attainment of public justice.^* Thus have been located in this class of legal bodies drainage districts/" levee dis- land V. Phillips, 3 Tenn. Ch. 556; McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758; Eckhardt v. Darby, 118 Mich. 199, 76 N. W. 761. 3 8 1 Dill. Mun. Corp. (4th Ed.) §§ 9, 25; BOARD OF HAMILTON COUNTY COM'RS v. MIGHELS, 7 Ohio St. 109; ASKI':W V. HALE CO., 54 Ala. 639, 25 Am. Rep. 730; Cathcart v. Comstock, 56 Wis. 590, 14 N. W. 833; Hamilton Co. v. Garrett, 62 Tex. 602; Green v. Cape May, 41 N. J. Law, 45. 39 Elmore v. Commissioners, 135 111. 269, 25 N. E. 1010, 25 Am. St. Rep. 363; Lussem v. Sanitary Dist., 192 111. 404, 61 N. E. 544. § 33) BOARDS^COMMISSIONERS — COMPANIES. 107 tricts,*" and road districts ; ** and to it will doubtless be drawn the public organizations for irrigating particular dis- tricts of country. Their corporate functions are few, their objects special, and to their transactions will be found appli- cable the strict rules and principles of decision applied in cases of townships and school districts in limitation of powers and liabilities. BOARDS— COMMISSIONERS— COMPANIES. 33. A public body of individuals created by law and charged vpitb tbe performance of some governmental function OP functions, wbetber general or local, constitute a quasi corporation. In this class of quasi corporations the individuals incor- porated, or the members of the body, become the prominent feature, and the locality becomes unimportant or disappears. These agencies of government possess theoretically the fol- lowing essential attributes of a corporation : (a) A .body of individuals; (b) the sanction of the law; (c) the distinct and definite purpose. They are usually called boards, commis- sions, or trustees, and are charged with the performance of some distinct governmental function, either throughout the entire state or in some particular locality. To this sort of quasi corporations belong overseers of the poor,*^ river con- 40 Dean v. Davis, 51 Cal. 40G; People v. Williams, 56 Cal. 647. A levee district which, under statutory provision, maj- be established by the county court on application of property owners, may be es- tablished by such court notwithstanding objection of less than a majority of the landowners; and it is not a private corporation, but a public, political subdivision of the state. Morrison v. Morey, 146 Mo. 543, 48 S. W. 629, 41 Elliott, Roads & S, p, 325; Board of Com'rs of Montgomery Co. V. Fullen, 111 Ind, 410, 12 N. E. 298. 4 2 Overseers of Poor of City of Boston v. Sears. 22 Pick. (Mass.) 122; Rouse v. Moore, 18 Johns. (N. Y.) 407; Governor v. Gridley, Walk. (Miss.) 328. See Town of Cordova v. Village of Le Sueur Center, 74 Minu. 515, 77 N. W. 2'M. 1U8 QUASI CORPORATIONS TOWNS, ETC. (Ch. 4 servators,*' highway commissioners,** boards of education,*' park commissioners,*® railroad commissioners,*^ warehouse coiTmiissioners,*^ loards of piillic works/" boards of health, ''° police boards, ^^ police juries,-'-' fire engine companies;*^ and even a governor of a state has been held to be a quasi cor- poration sole.®* These bodies of public officials are generally only adminis- trative agencies of the state. Their governmental functions are limited in extent and clearly defined by statute, and they have no revenues or taxing powers. They are express public trusts to be administered for the public welfare. The property they may hold, being dedicated to public use and service, is exempt from legal process, like other property of the state ; and the measure of their corporate liability is the narrow scope of their corporate functions. But occasionally such bodies are empowered to engage in undertakings of a business charac- ter, yielding revenue over which they have qualified control. In such cases the field of liability is enlarged, and they become measurably subject to the same rules as are applied to other corporations performing like services. An instance of this kind occurred in the celebrated cases of the Liverpool dock commission, ultimately decided by the House of Lords, where- in this quasi corporation was not only held subject to pool rates, ^° but liable in damages for negligence in failing to 4 3 Conservators of River Tone v. Ash, 10 Barn. & C. 349. 44 Levy Court v. Coroner, 2 Wall. (U. S.) 501, 17 L. Ed. 851. 45 State V. Board, 18 Nev. 173, 1 Pac. 844. 46 Andrews v. People, 83 111. 529; 84 111. 28. 47 People V. Harper, 91 111. 357. 48 id. 4 9 Larned v. Briscoe, 62 Mich. 393, 29 N. W. 22. 50 State V. Board, 54 N. J. Law, 325, 23 Atl. 949. 51 Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. 52 Police Jury of Ouachita v. Monroe, 38 La. Ann. 630. 63 Cole V. Engine Co., 12 R. I. 202. 54 POLK V. PLUMMER, 2 Humph. (Tenn.) 500, 37 Am. Dea 566; Governor v. Allen, 8 Humph. (Tenn.) 176. 55 Jones V. Board, 11 H. L. Cas. 443. § 33) BOARDS — COMMISSIONERS — COMPANIES. 109 properly cleanse the Wellington Dock, whereby a vessel was imbedded in harbor mud, and, with its cargo, was badly dam- aged.^® And in another case want of funds was held no de- fense to such an action, because the commissioners had power to levy a tax, and thereby obtain the necessary funds. ^^ Sim- ilar rulings have been made in this country in regard to over- seers of highways ^^ and to municipal corporations. °' 68 MERSEY DOCK TRUSTEES v. GIBBS, L. R. 1 H. L. 93. This interesting and instructive case is given in full in 1 Tliomp. Neg. 581. It is thus digested: "The principle on which a private person or a company is liable for damages occasioned by the neglect of servants applies to a corporation which has been intrusted by stat- ute to perform certain works, and to receive tolls for the use of those works, although those tolls, unlike the tolls received by the private person or the company, are not applicable to the use of the individ- ual corporators, or to that of the corporation, but are devoted to the maintenance of the works, and, in case of any surplus existing, the tolls themselves are to be proportionally diminished." 6 7 Hartnall v. Ryde Commissioners, 4 Best & S. 361. 68 Hover v. Barkhoof, 44 N. Y, 113. 69 Erie City v. Schwingle, 22 Pa, 385, 60 Am. Dec. 87; Hines v. Lockport, 50 N. Y. 236; Hyatt v. Roudout, 44 Barb. (N. Y.) 385; City of Milledgevllle v. Cooley, 55 Ga. 17. Part II. MUNICIPAL CORPORATIONS. CHAPTER V. MUNICIPAL CORPORATIONS. 34. Municipal Corporations — Distinguishing Elements — Prescription. 35. The State. 36. The Territoriea. 37. History. MUNICIPAL CORPORATIONS— DISTINGUISHING ELE- MENTS. 34. The municipal corporation is a perfect public corporation, established under and by virtue of a sovereign act of legislation, uniting the people and land \eitliin a pre- scribed boundary into a body corporate and politic for the purposes of local and self-government, and in- vested Mdtb the powers necessary therefor. It is perfect as contradistinguished from the imperfect quasi corporation, the county, district, or township, loosely organ- ized under general law into a governmental agency for local administration of the state authority within a subdivision of the state,^ which in strictness cannot be said to be incorporated, though the statutes of many states declare them to be corpora- tions. The municipal corporation is duly incorporated not primarily to enforce state laws, but chiefly to regulate the local afifairs of the city, town, or district incorporated by lAnte, §§ 7-10; BOARD OF COM'RS Ui-' HAMILTON CO. v. MIGHELS, 7 Ohio St. 109; Talbot County Com'rs v. Queen Anne's Co., 50 Md. 24.5; Manuel v. Commissioners, 98 N. C. 9, 3 S. E. S2!i; Schultes V. Eberly, 82 Ala. 242, 2 South. 345; Cathcart v. Comstock, 56 Wis. 590, 14 N. W. 833; Rogers v. People, 08 111. 154; Beach v. Leahy, 11 Kan. 23; Pulaski Co. v. Reeve, 42 Ark. 54; State v. Leffingwell, 54 Mo. 4.')8; Soper v. Henry Co.. 26 Iowa, 264; HI LI. V. BOSTON, 122 Mass. 344, 23 Am. Rop. :«2. (110) § 34) IN GENERAL. Ill proper legislation and administration.' It is lawfully and fully empowered so to do.^ Practically it may fall far short of perfection, but in the eye of the law it is the only ideal of a complete public corporation. Its object is public,* though incidents connected with it may be of private nature, ' and so far forth it is subject to the rules of liability controlling pri- vate corporations in the ownership of property,^ while the quasi public corporation is of a private nature and object, with incidents only that are public^ The municipal is the 2 Cuddon V. Eastwick, 1 Salk. 143; Heller v. Streminel, 52 Mo. 309; PEOPLE v. MOKUIS, 13 Wend. (N. Y.) 325; PEOPLE v, HUKLBUT, 24 Mich. 44, 9 Am. Rep. 103; East Tennessee University V. Knoxville, 6 Baxt. (Tenn.) 1G6; State v. Milwaukee, 20 Wis. 87. sCooley, Const. Lim. (6tti Ed.) p. 138; STATE v. DENNY, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65, and 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; PEOPLE v. HURLBUT, supra; PEOPLE v. DETROIT, 28 Mich. 228. 15 Am. Rop. 202; Taylor v. Caroudelet, 22 Mo. 105; Heland v. Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 070; State v, Tryon. 39 Conn. 183; Mason v. Shawneetown, 77 111. 533 ; Starr v. Burlington, 45 Iowa, 87 ; Bearden v. Madison, 73 Ga. 184; Milne v. Davidson, 5 Mart. (N. S.) (La.) 409, 16 Am. Dec. 1S9. *1 Thomp. Priv. Corp. 22; Dean v. Davis, 51 Cal. 406; PEOPLE V. MORRIS, 13 Wend. (N. Y.) 325; Appeal of Bennett's Branch Imp. Co., 65 Pa. 242; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 215. 6 BAILEY V. MAYOR, 3 Hill (N. Y.) .531, 38 Am. Dec. 669; Jones V. New Haven, 34 Conn. 1; Commonwealth v. Philadelphia, 132 Pa. 288, 19 Atl. 136; Wagner v. Rock Island, 146 111. 139, 34 N. E. 545, 21 L. R. A. 519 ; STATE v. DENNY, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 63; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103. 6 .Tones v. New Haven, 34 Conn. 1; Brumm's Appeal (Pa.) 12 Atl. 855; Town of Montpelier v. East Montpelier, 29 Vt. 12. 67 Am. Dec. 748; Grogan v, San Francisco, 18 Cal. 590; Webb v. IMayor, 64 How. Prac. (N. Y.) 10; NICHOL v. ]MAYOR, 9 Humph. (Tenn.) 2.52; PEOPLE V. DETROIT. L'S Mich. L'2S, 15 Am. Rep. 2U2; United States V. Railroad Co., 17 Wall. (U. S.) 332, 21 L. Ed. .597. 7 Ilanniltal & St. J. R. Co. v. Marion Co., 36 Mo. 294; Goodnow V. Ramsey Co., 11 ]Minn. 31 (Gil. 12); Louisville & N. R. Co. v. Davidson Co., 1 Sneod (Tenn.) 637, 62 Am. Dec. 424; Granger v. Pulaski Co., 26 Ark. 37 ; Ray Co. v. Beutley, 49 Mo. 236 ; LARAMIE CO. V. ALBANY CO.. 92 U. S. 307, 23 L. Ed. 552. But see Smith V. :SIyers. 15 Cnl :r,: MT^XN v. ILLINOIS, 94 U. S. 113, 24 L. Ed. 112 MUNICIPAL CORPORATIONS — ELEMENTS. (Ch. 5 only corporation standing as the representative of the purely public corporation. It is established under law ; * i. e., it may be created by special charter enacted by the general assembly, without pop- ular expression or action from the inhabitants of the terri- tory, as well as by their request or consent; ^ indeed, munici- palities have been incorporated in direct antagonism to the expressed wish of the people.^" Or it may be voluntarily organized by the residents of a specified territory under gen- eral incorporation laws, enacted for such purpose, and author- 77; CHICAGO, B. & Q. R. CO. v. IOWA, 94 U. S. 155, 24 L. Ed. 94; State v. Gas Co., 37 Ohio St. 45. 8 Elliott, Mun. Corp. §§ 12, 13; 1 Dill. Mun. Corp. §§ 21, 37, 44, 54; Clark, Priv. Corp., Appendix; People v. Stout, 23 Barb. (N. Y.) 349; PEOPLE v. BUTTE, 4 Mont. 179, 1 Pac. 414, 47 Am. Rep. 346; STATE v. CURKAN, 12 Ark. 321; Taylor v. Newberne, 55 N. C. 141, 64 Am. Dec. 506; Smith v. People, 154 111. 58, 39 N. E. 319. 8 Inhabitants of Gorham v. Springlield, 21 Me. 58; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330; Blessing v. Galveston, 42 Tex. 641; Morford v. Unger, 8 Iowa (8 Clarke) 82; Clarke v. Rogers, 81 Ky. 43; BERLIN v. GORHAM, 34 N. H. 206; People v. Wren, 5 111. 269; PEOPLE v. MORRIS, 13 Wend. (N. Y.) 325; State ex rel. Dome V. Wilcox, 45 Mo. 458; Smith v. McCarthy, 56 Pa. 359; Alcorn V. Hamer, 38 Miss. 652; State v. Steunenberg, 5 Idaho, 1, 45 Pac. 462; In re Narberth Borough, 16 Pa. Co. Ct. R. 29; De Hart v. At- lantic City, 62 N. J. Law, 586, 41 Atl. 687. 10 Elliott, Mun. Corp. § 14. "The erection of such a corporation is in truth simply the creation of a new instrumentality of govern- ment." Elliott, Roads & S. p. 313; PEOPLE v. BUTTE, 4 Mont. 179, 1 Pac. 414, 47 Am. Rep. 346; Inhabitants of Gorham v. Spring field, 21 Me. 58; Bristol v. New Chester, 3 N. H. 524; STATE v. CUKRAN, 12 Ark. 321; People v. Wren, 5 111. 209; Coles v. Madi- son Co., 1 111. (Breese) 154, 12 Am. Dec. 161; Warren v. Major, 2 Gray (Mass.) 84; PEOPLE v. MORRIS, 13 Wend. (N. Y.) 325; Spring Valley Waterworks v. San FranciBco, 22 Cal. 434; Zabriskie v. Rail- road Co., 23 How. (U. S.) 381, 16 L. Ed. 488; State v. Babcock, 25 Neb. 709, 41 N. W. 654; New York Fire Dept. v. Kip, 10 Wend. (N. Y.) 207; Proprietors of Land of Southold v. Horton, 6 Hill (N. Y.) 501; Morford v. Unger, 8 Iowa, 82. § 34) IN GENERAL. 113 izing the erection of a municipality by such means.^^ In the first case the charter is the test and measure of the granted powers ; in the latter they are to be found in the general cor- poration statutes. The difference between the two is only in the mode of organization. When fully incorporated, both are equally perfect public corporations. It is a "sovereign act of legislation," because in this country no other power in the state may create the corporation.^^ The power may not be delegated to any inferior body.^' The general assembly or legislature of the state alone possesses 11 Von Pliul V. Hammer, 29 Iowa, 222; Kimball v. Rosendale, 42 Wis. 407, 24 Am. Rep. 421; City of Wyandotte v. Wood, 5 Kan. 603; Thomas v. Ashland, 12 Ohio St. 124; City of Lafayette v. Jen- ners, 10 Ind. 70; State v. Steunenberg, 5 Idaho, 1, 45 Pac. 4G2. 12 Chandler v. Douglass, 8 Blackf. (lud.) 10, 44 Am. Dec. 732; United States v. Ins. Co., 22 Wall. (U. S.) 99, 22 L. Ed. 81(3; Clarke V. Rogers, 81 Ky. 43; MILLS v. WILLIAMS, 33 N. C. 5-58; People V. President, 9 Wend. (N. Y.) 351. 13 City of St. Louis v. Russell, IIG Mo. 248, 22 S. W. 470, 20 L. R. A. 721; Thompson v. Schermerhorn, 6 N. Y. 92, 55 Am. Dec. 385; McCrowell v. Bristol, 89 Va. 652, 16 S. E. 867, 20 L. R. A. 653; Lauenstein v. Fond du Lac, 28 Wis. 336; City of East St. Louis V. Wehrung, 50 111. 28; Mayor of City of Baltimore v. Scharf, 5-1 Md. 499; Danforth v. Mayor, 34 N. J. Law, 103; Ruggles v. Inhab- itants of Nantucket, 11 Cush. (Mass.) 433. Also, see City of Oak- land V. Carpentier, 13 Cal. 540, and Matthews v. City of Alexandria, OS Mo. 115, 30 Am. Rep. 77(J, where the cities empowered to build and regulate wharves undertook to confer the right upon lessees or contractors. 1 Thomp. Priv. Corp. § 110; State v. Simons, 32 Minn. 540, 21 N. AV. 750; In re Incorporation of Village of North Mil- waukee, 93 Wis. 616. 67 N. W. 1033, 33 L. R. A. 638; Territory v. Stewart, 1 Wash. 98. 23 Pac. 405, 8 L. R. A, 106; STATE v. ARM- STliOXG, 3 Sneed (Tenn.) 634. The power to organize or perform miuisterial functions under the law authorizing incorporation may be vested in courts or othcia) boards. EX PARTE CIIADWELL, 3 Baxt. (Tenn.) 98; Greeneville & P. R. Narrow Gauge R. Co. V. Johnson, 8 Baxt. (Tenn.) 332; Ileck v. McEwen. 12 Lea (Tenn.) 97; State v. Leathernian. 38 Ark. 81; Clark, Priv, Corp. p. 41, note. Cooley, Const. Lim. (Gth Ed.) pp. 137, 248. Ing.Cobp. — 8 114 MUNICIPAL CORPORATIONS BLEMP:XTS. (Ch. 5 this inherent creative power.^* No court or county board or other authority is competent for this legislative function.^* It is a sovereign act of legislation, in whatever form. It unites the people and the land, for neither people nor land alone can constitute a municipality. Like a home, it requires a union of both elements — the land to give it body, and men to give it spirit and life. Both are essential to its creation and to its existence.^" It has a prescribed boundary, because the 14 Judge Cooley (Cooley, Const. Lim. [6th Ed.] 141) says: "The prevailiug doctrine in the courts appears to be that, except in those cases where, by the Constitution, the people liave not expressly re- served to themselves a power of decision, the function of legisla- tion cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration." "Municipal corporations can only exist under and by virtue of leg- islative enactment." City of Guthrie v. Wylie, 6 Okl. 61, 55 Pac. 103. See Hope v. Deaderick, 8 Humph. (Tenn.) 1, 47 Am, Dec. 597; JAMESON v. PEOPLE, 16 111. 257, 63 Am. Dec. 304; Atkinson v. Railroad Co., 15 Ohio St. 21; Mayor of City of Mobile v. Moog, 53 Ala. 561; McPherson v, Foster, 43 Iowa, 48, 22 Am, Rep. 215; TOWN OF NEW BOSTON v. DUNBARTON, 12 N. H. 409; CITY OF MEMPHIS V. WATER CO., 5 Heisk. (Tenn.) .529. 1 5 McCULLOCH V. STATE OF MARYLAND, 4 Wheat. (U. S.) 316, 424, 4 L. Ed. 579; Mayor of City of Mobile v. Moog, 53 Ala. 561; FRANKLIN BRIDGE CO. v. WOOD, 14 Ga. 80; City of Nor- ristown v. Sheltou, 1 Head (Tenn.) 24 ; Greeneville & P, R. Narrow Gauge R. Co. v. Johnson, 8 Baxt. (Tenn.) 332 ; State v. Jennings, 27 Ark. 419. But see. also. People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; BLANCHARD v, BISSELL, 11 Ohio St. 96; People V. Carpenter, 24 N. Y. 86; Devore's Appeal, 56 Pa. 163; Taylor v. Ft. Wayne, 47 Ind. 274. 16 Baumgartner v. Hasty, 100 Ind. 575, 50 Am, Rep. 830; CITY OF PHILADELPHIA v. FOX, 64 Pa. 180; Lowber v. Mayor, 5 Abb. Prac. (N. Y.) 325; Clarke v. Rochester, 24 Barb. (N. Y.) 446; Kelly V. Pittsburgh, 104 U. S. 78, 26 L. Ed. 6.59; City of Galesburg v. Hawkinson, 75 111. 152, 156; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; PEOPLE v. HURLBUT. 24 Mich. 44, 9 Am. Rep. 103; State V. Mote. 48 Neb. 683, 67 N. W. 810; State v. Fridley Park Village, 61 Minn. 146, 63 N. W. 613. § oi) IN GEXEKAL. 115 limits of the municipality must be fixed and definite, that its territorial jurisdiction may not be uncertain or doubtful. ^^ The body is corporate and politic because it is authorized and organized as an agency of the state for public uses and the public good.^* It is local because/* unlike the ancient cities,^" its powers and franchises are to be confined to its territorial limits, or lands immediately contiguous, which are sometimes included for police and sanitary purposes.^* 17 Gilchrist's Appeal, 109 Pa. 600; City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601; Cutting v. Stone, 7 Vt. 471; Hamil- ton V. McNeil, 13 Grat. (Ya.) 389; People v. Carpenter, 24 N. Y. 86. 18 East Tennessee University v. Knoxville, 6 Baxt. (Tenn.) 166; CITY OF PHILADELPHIA v. FOX, 64 Pa. 185; Heller v. Stremmel, 52 Mo. 309 ; 1 Dill. Mun. Corp. § 23. 19 In People v. Common Council, 28 Mich. 228, 15 Am. Rep. 202, Cooley, J., said: "While it is a fundamental principle in the state, recognized and perpetuated by express provisions of the Constitution, that the people of every hamlet, town, and city of the state are entitled to the benefits of local self-government, the Constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the state, from considerations of good policy, as well as those which pertain to the local benefit and local desires." Peo- ple V. Morris, 13 Wend. (N. Y.) 325; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107. 2 Liddell, Rome, c. 27. Babylon, Thebes, Athens. Corinth, Carth- age, and Rome, though cities, merely, were great ruling powers in the ancient world. The early life of the Christian era was entirely ur- ban. Guizot, Hist. Civ., lect. II. 21 People V. Bennett, S3 Mich. 457, 47 N. W. 250; Weed v. Boston, 126 Mass. 443; Ogden City v. McLaughlin, 5 Utah, 387, 16 Pac. 721; Monroe v. Lawrence, 44 Kan. 607, 10 L. R. A. 520, 24 Pac. 1113. But see Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85; City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601. And concerning disposition of sewage beyond corporate limits, see McBean v. Fnsno. 112 Cal. 159, 44 Pac. 358. 31 L. R. A. 794, 53 Am. St. Rep. 191. Sof« East Tennessee University v. Knoxville, 6 Baxt. (Tenn.) 166; Chi- cago Packing & Provision Co. v. Chicago, 88 111. 221, 30 Am. Rop. 545; Dingley v. Boston, 100 Mass. 544. IIG MUNICIPAL CORPORATIONS ELEMENTS. (Cll. 5 It is for self-government, because the idea of foreign dom- ination and exclusion of the people of a city or town from the administration of its internal affairs is repugnant to the fund- amental conception of a municipality and the genius of Ameri- can institutions.-^ "Municipium" means a free town, and "municeps" a free citizen thereof, as those, ideas were con- ceived in the Roman Empire. This idea persisted in Italy, Germany, France, and England through the Middle Ages, and despite the Hapsburg, Bourbon, and Stuart tyrannies.-^ A city not governed by its own laws and ordinances in its domestic concerns is not a municipality, either by history or etymology. It must have powers, or it cannot be a govern- ment — powers sufficient to authorize it to make its own laws and enforce them.^* It is an imperium in imperio — a favorite in our complex American system of checks and balances and home rule. In England, notwithstanding the doctrine that a corporation must have the authority of royal assent or act of parliament, municipalities existed without either of these charters. They had existed from time immemorial, and usually their origin is to be found in tradition or romance. Their usages and customs were the only evidence of their franchises, privileges, and powers. These municipalities were divided into two classes — the one 2 2 1 Dillon, Mun. Corp. § 8a ; Smith, Mun. Corp. § 32 ; BOARD OF HAMILTON COUNTY COM'RS v, MIGHELS, 7 Ohio St. 109; CUDDON V. EASTWICK, 1 Salk. 143; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; PEOPLE v. MORRIS, 13 Weud. (N. Y.) 325; PEOPLE v. DETROIT, 2o Mich. 228, 15 Am. Rep. 202; STATE V. DENNY, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65. 23 Hallam's History Middle Ages, c. 8; 1 Hume's England, App. II; Norton History of London, c. 20; 1 Stephen's Eng. Const c. 7. 24 Hopkins v. Mayor of Swansea, 4 Mecs. & W. G21 ; State v. Tryon, 39 Conn. 183; Mason v. Shawneetown, 77 111. 533; Heland v. Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. G70; Starr v. Burlington. 45 Iowa, 87; Taylor v. Carondelet, 22 Mo. 105; City of St Paul v. Colter, 12 Minn. 41 (Gil. 16) 90 Am. Dec. 278; Markle v. Akron, 14 Ohio, 586; Trigally v. Memphis, 6 Cold. (Tenn.) 382. § 34) IN GENERAL. 117 known as "common-law corporations," and the other as "cor- porations by prescription" ; the former existing by immemorial usage.- ^ and the latter upon a royal charter presumed to have been granted and to have been lost or destroyed.^® These classes of municipal corporations, though common in England, have slight warrant for recognition in America. Existence by Prescription. In the New England states it has been frequently ruled that, where no charter or act of incorporation for a town can be found, the corporation may be proved by reputation showing that the town has claimed and exercised corporate functions with the knowledge and acquiescence of the legislature, and without interruption or objection, for a period long enough to afford a title by prescription.^^ So in New York with regard to a school district.^* Likewise in the newer states of Indiana,^® Illinois, and Wisconsin,^" the courts have applied the same doctrine to municipal corporations; Illinois judges declaring municipal corporations to be favorites of the law, as created for the public good, and demanded by the wants 25 Rex V. Mayor, etc., of Stratford on Avon, 14 East, 348; Mayor of Hull V. Horner, Cowp. 104; 1 Dill. Mun. Corp. §§ 32, 37. 26 Cooley, Const. Lim. (6tli Ed.) p. 236; Jameson v. People, 16 111. 257. 03 Am. Dec. 304; Back v. Carpenter, 29 Kan. 349. 2 7 Inhabitants of Stockbridge v. West Stockbridge, 12 Mass. 400; BOW V. ALLEXSTOWN, 34 N. H. 351, 69 Am. Dec, 489; Trott v. Warren. 11 Me. 227; Halfway River School Dist. v. Bradley, 54 Conn. 74, 5 Atl. 861. In Dillingham v. Snow, 5 Mass. 547, reputation was allowed to prevail because a large portion of the records had been destroyed by fire. See, also. Town of Londonderry v. Andover, 28 Vt. 416; Broking v. Van Valen. 56 N. J. Law, 85, 27 Atl. 1070. 2 8 Robie V. Sedgwick. 35 Barb. (N. Y.) 319. 29 Pidgeon v. McCarthy. 82 Ind. 321, in which case a lot had beeu taxed by the city government of Vinconnes for 60 years without question or objection, and this was held suflicient to show that the lot was within the corporation limits. 30 Sherry v. Gilmore. 58 Wis. 324, 17 N. W. 2."2. 118 MUNICIPAL CORPORATIONS — ELEMENTS. (Ch. 5 of society.^* In all such cases the question to be decided is not one of law, but one of fact, viz. : Has this body claiming to be a corporation maintained an unbroken existence, and claimed to exercise corporate powers so long as to afford pre- sumption of an original grant of corporate powers and fran- chises? Wh.ere this is found, it seems to be the rule of law to assume that the corporation has all the rights, powers, priv- ileges, and franchises conferred by general law upon similar bodies.^^ These cases are perhaps sufficient in number to warrant us in saying that there may be in America a munici- pal corporation other than that created by legislative enact- ment; but the cases are so few in number where any resort to this old English doctrine is necessary, and the question so unlikely to recur as to warrant passing from them without further notice. THE STATE. 35. The state is not a municipal corporation. A consideration of the essential elements of the municipal corporation makes this matter so plain as to seem unnecessary for statement; but, in view of certain judicial expressions and loose statements of authors, the essential difference should be noticed. By the State here is meant a self-existent body of persons united together in one political entity, organized un- der a distinct government possessing sovereign power rec- ognized and upheld as supreme.^* It is used generically, and 81 JAMESON V. PEOPLE, 16 III. 257, 63 Am. Dec. 304. 32 TOWN OF NEW BOSTON v. DUNBAETON, 15 N. H. 201; BOW V. ALLENSTOWN, 34 N. H. 351, 69 Am. Dec. 489; State v. Bunkers, 59 Me. 366; State v. Leatherman, 38 Ark. 81; Cooley, Const. Lira. (6th Ed.) p. 238. 3 3 Bouv. Law Diet, subject "State." "A multitude of people united together by a communion of interest, and by common laws, to which they submit with one accord." Burlamaqui, Politic. Law, c. 5 ; Georgia v. Stanton, 6 Wall. (U. S.) 65, IS L. Ed. 721; CHISHOLM V. GEORGIA, 2 Dall. (U. S.) 457. 1 L. Ed. 440; Des Moines Co. v. § 35) THE STATE. 119 includes, therefore, not only the states of the federal union, but the government of the United States itself. The State exists by itself and for itself, and without the consent of any one except the people thereof. It is not created or estabUshed under an act of legislation, or by the consent of any superior power. In America, at least, it derives its power exclusively from the consent of the people.** This consent is essential, and some lawful expression of it must be given to authorize its creation. If it have not the attribute of sovereignty, it is not a State.*^ That is the power which creates corporations. It controls and dissolves them. This sovereign power is that which makes it a State, and not a corporation, which is a de- rivative creation, owing its existence and powers to the State.*® It is, of course, not to be denied that in very many of their attributes, functions, and powers, the State and municipal cor- poration bear close resemblance ; ^'' and by one seeking re- semblance only they might readily be mistaken for the same kind of political entity. But after tracing all these points of similarity, there still remains the distinguishing and ineradica- ble difference that one is creator and the other is creature.*^ Barker, 34 Iowa, 84; Delafleld v. Illinois, 2 Hill (N. Y.) 159; TEXAS V. WHITE, 7 Wall. (U. S.) 700, 19 L. Ed. 227. 3 4 See Declaration of Independence, first and second paragraphs. 3 5 LUTHER V. BORDEN, 7 How. (U. S.) 1, 12 L. Ed. 581; Bank of Augusta V. Earle, 13 Pet. (U. S.) 519, 10 L. Ed. 274. But see State of Indiana v. Woram, 6 Hill (N. Y.) 33, 40 Am. Dec. 378; Dikes v. Miller, 25 Tex. Supp. 281, 78 Am. Dec. 571; Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225, 41 Am. Dec. 549; Peo- ple V. St. Louis, 10 111. 351, 48 Am. Dec. 339. 3 6 Ante, § 1; Thomp. Priv. Corp. §§ 1, 15, 35; Clark, Priv. Corp. §§ 4, 13 to 18, inc., Appendix. 3 7 Delafleld v. Illinois, 2 Hill (N. Y.) 159: "A state is a legal be- ing, capable of transacting some kinds of business like a natural person." Indiana v. Woram, 6 Hill (N. Y.) 33, 40 Am. Dec. 378. See Lowell, Stocks, § 2, where he says: "* * • The parallel, In- deed, between a state and a corporation, is very close." 38 BERLIN V. GORHAM, 34 N. H. 266; City of Patorson v. So- ciety. 24 N. J. Law, 385; HOPE v. DEADERICK, 8 Humph. (Tenn.) 1. 47 Am. Dec. .597. 120 MUNICIPAL CORPORATIONS — ELEMENTS. (Ch. 5 TERRITORIES. 36. A territory is not a municipal corporation. A territory of the United States, by its very nature, belongfS to a distinct class of political bodies. It is not self-existent.^" The consent of the population is not required to its creation, organization, or political existence. It is created by a sov- ereign act of legislation,*" but its area is too extensive for a municipality. Under congressional grant it may possess the great powers of local legislation, including the creation of cor- porations, public and private.*^ But the judicial and execu- tive departments are administered by appointees of the federal government, so that the power of local self-government in the territory is partial only.*^ The territorial powers of legisla- tion usually granted by Congress are entirely subject to the congressional will.*^ Congress may at any time abrogate the territorial laws. It may itself enact laws for the territorial government in any or all of its details.** It may grant char- so VINCENNES UiXIVERSITY v. INDIANA, 14 How. (U. S.) 273, 14 L. Ed. 416; Miners' Bauk v. Iowa, 12 How. 1, 13 L. Ed. 867; Brittle v. People, 2 Neb. 198. 40 Williams v. Bank, 7 Wend. (N. Y.) 539. " PEOPLE EX REL. v. BUTTE, 4 Mont. 179, 1 Pae. 414, 47 Am. Rep. 346; Deitz v. Central, 1 Colo. 323. 42 Territory v. Guyott, 9 Mont. 46, 22 Pac. 134. 43 Rogers V. Burlington, 3 Wall. (U. S.) 662, 18 L. Ed. 79; RID- DICK V. AMELIN, 1 Mo. 5; Williams v. Bank, 7 Wend. (N. Y.) 539. 44 In the case of RIDDICK v. AMELIN, 1 Mo. 5 (decided in 1821, about the time of the admission of Missouri to statehood), the objec- tion was made that such a Legislature (territorial) was not sovereign, and that nothing short of sovereign power could create a corporation. The answer given was that Congress could give and had given the power to legislate on such subjects. In an act of Congress (Act March 2, 1867, c 150, § 1, 14 Stat. 426; Rev. St. U. S. § 1889), it was provided that "* * * the legislative assemblies of the sev- eral territories of the United States shall not • • * grant private ^ 36) TERRITORIES. 121 ters to corporations, private or municipal, and may create new quasi corporations, and divide or consolidate existing ones.*^ Congress possesses over the territories all the power which the state possesses over public corporations, quasi and municipal, and thereby the territory is given a much closer resemblance than the state to municipal corporations.*' The act of Congress under which it is authorized, commonly called the "Organic Act," is its charter of existence; and, like the municipality, the territory may exercise only such powers as are granted by the charter.*'^ But it has none of the common- law qualities of a corporation which inhere in the municipal corporation, and could, at most, be called with semblance of propriety a quasi corporation. It is, however, a peculiarly American political entity of statutory origin, and is as dis- tinctly characterized by its name "territory" as the municipal corporation is by the term "municipality." Quasi Corporations. As already shown, *^ counties, towns, townships, and school districts are not municipal corporations, but only quasi cor- porations, with limited statutory powers and liabilities, and not subject to the doctrines of the law peculiarly applicable to municipal corporations. This phrase will be used herein in its strict and proper sense, as referring to chartered and or- ganized local governments of towns and cities. charters or especial privileges. * * *" In Seattle v. Tyler, Wash. T. 1877, this section was held by Chief Justice Lewis, of that ter- ritory, to extend to and embrace municipal corporations within its prohibition. 4 5 1 Dill. Mun. Corp. (4th Ed.) § 38; CITY OF GUTHRIE v. TERRITORY. 1 Okl. 188, 31 Pac. 190, 21 L. R. A. 841; Alger v. Hill, 2 Wash. St. 344, 27 Pac. 922 ; Deitz v. Central, 1 Colo. 332. 46 RIDDICK V. AMELIN, 1 Mo. 5; Williams v. Bank, 7 Wtjnd. (N. Y.) .539. 47 Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; First Nat. Bank v. Yankton, 101 U. S. 129, 25 L. Ed. 104tJ; Murphy v. Ramsey, 114 U. S. 15, 5 Sup. Ct. 747, 29 L. Ed. 47. 48 Ante, §§ 7, 29. 122 MUNICIPAL CORPORATIONS — ELEMENTS. (Cll. HISTORY. 37. The American municipal corporation, tliongh differing in many respects from its norm, tlie English municipal- ity of the eighteenth century, has the same corporate character and attributes, and its lawr may be studied to advantage in the light of municipal history. The history of the development of the municipality, which had its origin under Roman rule, in the ancient Italian towns, of its struggles for existence during the storm and stress of the Feudal Ages, of the sturdy resistance of burgher and citi- zen against the tyranny and exaction of lord and King, of the undying love of home rule among Germanic peoples, and es- pecially of the struggle of these freedom-loving communities in England with the despotism of the house of Stuart, which claimed to rule by divine right, is interesting and instructive ; but the limits of this handbook do not permit of extended notice. A thorough exposition of this subject will be found in Hallam's Middle Ages,'*^ Hume's History of England, ^'^ and Green's History of the English People. ^^ Suffice it here to say that the elements which contribute love of home rule to the municipality are of German origin, and those contributing to it power as an organism come from Rome. Uniting these two elements, we find the essentials of the municipality ; its particular form, powers, and life are matters of environment. The town was alike the product and exponent of peaceful industry ; it was also the prey of the conquering warrior.^^ Municipal life had shown signs of considerable activity under the Saxon Kings ; but Norman *» Volume 3, c. 8, pt. 1. so Volume 1, App. 2. 51 In Harper's edition of the Short History, this matter will be found on pages 90-95, 129, 130, 157, 175-178, 190-200, 272, 402, 6G2- 665, 843. See, also, 1 Dill. Mun. Corp. §§ 1-8. 5 2 The larger portion of extraordinarj- war revenues was obtained by levies upon the cities. The wise lord or monarch preserved the plant, but took the product. § 37) HISTORY. 123 conquest and Norman rule were repressive and stifling. The peaceful citizen was no match for the mailed warrior, and for a long time municipal life was low, unfruitful, and uninviting. The life which had before been seen in the streets of the cities and towns was then attracted to the feudal castle, where were to be found the strong men and beautiful women, the wealth, the display, and the excitement of existence. Still the towns endured, and London never ceased to grow.®^ Gradually they began to be recognized as holding the balance of power between contending Kings and nobles, and the want of the one or the other for men and money afforded the towns their opportunity. Under the guilds the tradesmen and arti- sans had acquired both property and the habit of organiza- tion.^* These not only commanded respect, but gave them power to demand and obtain recognition and confirmation of their customary rights and privileges. Gradually they grew in importance, until in the thirteenth century Simon de Mont- fort summoned two citizens from each borough to sit in Parliament.^^ Before the close of the following century this summons had become regular and habitual, and the cities, boroughs, and leading towns of England were as firmly es- tablished as were the shires in their right of parliamentary representation. At first these burghers were the staunch sup- porters of the King in his efforts to break the power of the great barons ; but later, when the royal power under the Tudors and the Stuarts was overshadowing all other forces m the government, the instinct of self-preservation led the towns to side with the yeomen and gentry in their struggle with absolutism, and thereby advanced their interests. °° In early times every freeman settling in the borough and 63 1 Norton, Hist. Loudon, c. 20; Green. Short Hist, Eng. People, c. 6, § 1. 64 3 Adam Smith, "Wealth of Nations, c. 3. 65 Green. Short Hist. Eng. People, c. 4, § 2. 56 Ilex V. City of London, Mich., 33, Car. II; Case of City of Lon- don, 8 How. St. Tr. liiiO. liI4 MUNICIPAL CORPORATIONS — ELEMENTS. (Cll. 5 paying dues to it became thereby a burgher; but in the nat- ural evolution of urban life money became the power, and the merchant guilds gradually grew to become municipal oli- garchies.^^ After a long strife these in turn had been suc- ceeded by the trade companies. ^^ Besides their civic privileges and franchises, the boroughs had acquired civic property ; and, consistently with the spirit of the age, the persons then in power in them obtained royal charters, conferring sole municipal power upon the existing burgesses and their suc- cessors, thereby excluding all immigrants and newcomers. Many of the towns consequently ceased to grow, and in later years some of them were almost abandoned by people; yet they retained their parliamentary representation, thus form- ing the famous "rotten borough" of the last century, of which Old Sarum was the type.**® The special privileges and favors that a little borough thus had over its most prosperous and growing neighbors became a matter of such reproach that the Reform Parliament of 1832 abolished these pocket boroughs, which had dwindled into petty villages, controlled by neighboring landlords who ap- pointed parliamentary members; and in 1835 the municipal corporation reform act restored to the people of the towns the municipal essence which had been enjoyed by the favored few within their limits for centuries.***^ The towns, boroughs, and B7 Green, Short Hist. Eng. People, c. 4, § 4. 58 lb. 59 1 Dill. :\Iiin. Cory. § 8. 60 This act followed the report of a committee of barristers, which on a tour of the kingdom had personally examined into the condi- tion of nearly 250 municipalities. This report showed utter absence of uniformity in municipal government, except that it was uni- formly bad. The rights and interests of the people were wholly ignored. Offices were treated, not as public trusts, but as private "grafts." The governing bodies were self-perpetuating, and kept their own incompetent and worthless favorites in the offices, or dismit'Sed them at will to make place for choicer ones. There was no equable, uniform, fiscal policy, or reputable judicial system. Magistrates and constables were ignorant, base, and reckless, and § 37) HISTORY. 125 cities became veritable municipalities, self-government was restored to their people, and then began an era of prosperity among English cities which has continued to the present time. juries were appointed from favor, and to render prescribed ver- dicts. There was no civic conscience, and tlie coi-porations were perverted by corruption and oppression to private gain and partisan success. The report startled the English people, lords, and crown. Under Brougham's lead, parliament declared there was urgent and imper- ative need of immediate reform; and, addressing its best energies to the subject, formulated and passed the municipal corporations reform act, establishing uniformity in municipal government, re- storing the power to the inhabitants, and punishing official miscon- duct. The baiTisters' report concluded with the expression of the committee's opinion that the municipal corporations of England and Wales neither possessed nor deserved the respect or confidence of the people. The reform act was so appropriate and thorough in its plan and details that it remains to this day the basis of the mu- nicipal system not only of the United Kingdom, but also, by adop- tion, of the states of the American Union. 126 MUNICIPAL CORPORATlOiNS CUEATION. (Ch. 6 CHAPTER VI. MUNICIPAL CORPORATIONS (Continued). CREATION— HOW- BY WHAT BODIES— SUBJECT TO WHAT RESTRICTIONS, ETC. * 88. Creation of Municipal Corporations. 89. What Bodies may Grant Charters. 40. Legislative Discretion. 41. Legislative Power — Hovv^ Exercised. 42. Compliance with Conditions. 43. Corporations by Implication. 44. Charter not a Contract. 45. Validity — How Tested. CREATION OF MUNICIPAIi CORPORATIONS. 38> Tlie creation of municipal corporations x^itliin tlie limits of a state is the appropriate and exclusive function of the legislative power of that state. All governmental power of the state in our country inheres in the people of the state. ^ They organize their government by a constitution, wherein they confer all legislative power upon the legislative department. The granting of any right, power, or franchise pertaining to public matters is obviously a function of legislation, and cannot be within the province of the executive or judicial departments.- A municipal cor- poration requires this grant of governmental authority as the essential condition of its being. Obviously, therefore, this 1 Cooley, Const. Lim. (6th Ed.) pp. 39, 747. 2 HOPE V. DEADERICK, 8 Humph. (Tonn.) 1, 47 Am. Dec. 597 : CITY OF MEMPHIS v. WATER CO., 5 Heisk. (Teun.) 529 ; FRANK- LIN BRIDGE CO V. WOOD, 14 Ga. 80; Atkinson v. Railroad Co., 15 Ohio St. 21; People v. Assessors, 1 Hill (N. Y.) 616; Doboy & Union Island Tel. Co. v. De Magathias (C. C.) 25 Fed. 697. ^ 38) CREATION OF MUNICIPAL CORPORATIONS. 127 grant of municipal powers to a corporation may and must come from the legislative department.' Power to Create — Delegation of. Whether this power may be delegated by the legislature to either of the other co-ordinate departments of government, or the chief officers thereof, or any inferior officer or board there- in, is a subject of apparent conflict in the decisions of the courts of Iowa * and Colorado,^ on the one hand, and of Wis- consin,® Tennessee,'' and Arkansas,® on the other. But a reconciliation of these apparently conflicting views may be effected upon the basis of the Tennessee decision, which is to the effect that, if the legislature authorize the formation of 3 TOWN OF NEW BOSTON v. DUNBARTON, 12 N. H. 409. The power to create municipal corporations is legislative, and cannot be delegated to the courts. Territory v. Stewart, 1 Wash. St. 98, 23 Pac. 405, 8 L. R. A. 106; In re Incorporation of Village of North Milwaukee. 93 Wis. 616, 67 N. W. 10.33, 33 L. R. A. 638; CITY OF MEMPHIS V. WATER CO., 5 Heisk. (Tenn.) 529; JAMESON v. PEOPLE, 16 111. 257, 63 Am. Dec. 304; Tied. Mun. Corp. § 22. See. also, 1 Mor. Priv. Corp. § 15. The legislature has a discretion, un- controlled by any constitutional limitations, to decide when a given locality has a suiflcient number of inhabitants to entitle it to be incorporated as a city. Mattox v. State, 115 Ga. 212, 41 S. E. 709. The power to create a municipal corporation is vested in the legislature, and implies the power to create it with such limitations as that body may see fit to Impose, and to impose the same at any stage of its existence. Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431 ; See Cheaney v. Hooser, 9 B. Mon. (Ky.) 330; BERLIN v. GORHAM, 34 N. H. 206; CITY OF PATERSON v. SOCIETY, 24 N. J. Law, 385. 4 State V. Weir, 33 Iowa, 134, 11 Am. Rep. 115. 8 People V, Flemming, 10 Colo. 553, 16 Pac. 298. 6 State V. Forest County, 74 Wis. 610, 43 N. W. 551 ; In re In- corporation of Village of North Milwaukee, 93 Wis. 610, 67 N. W. 1033. 33 L. R. A. (S8. See, also. Territory v. Stewart, 1 Wash. St. 98, 23 Pac. 405. 8 L. R. A. 106. ^ STATE v. ARMSTRONG, 3 Sneed, 634; Ex parte Burns, 1 Tenn. Ch. 83. 8 State V. Leathcrman, 38 Ark. 81; State v. Jennings, 27 Ark. 419. See, also, State v. Simons, ,32 Minn. 540, 21 N. W. 750. 128 MUNU'II'AL CORPORATIONS — CREATION. (Ch. G corporations by general law, it may empower courts or boards to do ministerial acts necessary to bring the corporations into being.® It has also been held that the legislature may by spe- cial provision in the charter designate persons to issue a cer- tificate of incorporation whenever they shall be satisfied thai charter conditions have been complied with.^° The more re- cent Pennsylvania cases have also inclined to this view,^^ which seems consistent with the Constitution, and the reason- able application of it to the function of making a corporation. It would seem a vain thing to distribute the powers of gov- 9 Cooley, CoDst. Lim. (6tli Ed.) p. 146; Barto v. Himrod, 8 N. Y. 483, 55J Am. Dec. 506; State v. Council, 106 Iowa, 731, 77 N. W. 474. The power of determining boundaries may be delegated to tbe courts. Borough of Glen Ridge v. Stout, 58 N. J. Law, 598, 33 Atl. 858. See, also, FRANKLIN BRIDGE CO. v. WOOD, 14 Ga. 80, 1 Smith's Cas. 65; Ames v. Booming Co., 6 Mich. 260; Heck v. McEwen, 12 Lea (Teun.) 97; In re New York Elevated R. Co., 70 N. Y. 327. See Thomp. Com. Law Corp. §§ 643, 646; In re Alliance Borough, 19 Pa. Super. Ct. 178; Ford v. North Des Moines, 80 Iowa, 626, 45 N. VV. 1031. 10 STATE V. ARMSTRONG, 3 Sneed (Tenn.) 634. See reasoning in EX PARTE CHADAVELL, 3 Baxt. (Tenn.) 83; Ex parte Burns, 1 Tenn. Ch. 83 ; Greeneville & P. R. Narrow Gauge R. Co. v. Johnson, 8 Baxt. (Tenn.) 333. See, also, Litchfield Bank v. Church, 29 Conn. 137 ; In re New York Elevated R. Co., supra ; Napier v. Poe, 12 Ga. 170. It has been held that power to grant an exclusive franchise in aid of navigation may be delegated to a village. Famum v. John- son, 62 Wis. 620, 22 N. W. 751. But power to increase its repre- sentation on a county board, when the Constitution ordains that the legislature shall determine such representation, cannot be dele- gated. People V. Riordan. 73 Mich. 508, 41 N. W. 482. See Angell & A., Corp. § 31 ; Board of Levee Inspectors of Chicot Co. v. Crit- tenden, 94 Fed. 613, 30 0. G. A. 418. 11 Jefferson Co. v. Slagle, 60 Pa. 202; Cooper v. Lampeter Tp., 8 Watts (Pa.) 125. See, also, Whitney v. City of New- Haven, 58 Conn. 450, 20 Atl. 606; Gilmore v. Utica, 131 N. Y. 26, 29 N. E. 841; Holland v. State, 23 Fla. 123, 1 South. 521; City of Burlington v. Dennison, 42 N. J. Law, 165; Kramrath y. City of Albany, 53 Hun, 206, 6 N. Y. Supp. 54; Damon v. Inhabitants, 2 Pick. (Mass.) 345. § 39) WHAT BODIES MAT GRANT CHARTERS. 129 ernment among the three co-ordinate departments, and yet allow either to exercise the functions of the other, or permit one to abrogate its powers by conferring them upon another. ^VHAT BODIES MAY GRANT CHARTERS. ^ 39. The cliarters of municipal corporatioms may be granted ■foy (a) T-.e Cougrsss of the United States. Cb) Tiis atate legislatures. (c) Territoiial legislatures, virhen anthorizsd by Congress. By the federal Constitution, Congress is invested with "power to dispose of and make all needful rules and regula- tions respecting the territory belonging to the United States," ^^ and "to exercise exclusive legislation over such dis- trict as may become the seat of the government of the United States." ^^ Under this authority. Congress has erected the District of Columbia into a municipal corporation,^* has or- ganized territories, and also chartered cities and towns within their boundaries.^" Under the express grant of powers con- 12 Const. U. S. art. 4, § 3, par. 2. 13 Const. U. S. art. 1, § 8, par. 17. 14 IG Stat. 419. Under the authority granted to Congress to make all laws which shall be necessary and proper for carrying into execution certain specified powers given it, and all other powers vested by the Con- stitution in the government of the United States, or in any depart- ment or officer thereof. Congress has the power to create a corpora- tion whenever such corporation is a necessary or proper means for carrying into execution any power which is conferred by the Consti- tution upon the government of the United States. Luxton v. Bridge Co., 1.j3 U. S. .525, U Sup. Ct. 8131, 38 L. Ed. 808. 15 VIXCENNES UNIVERSITY v. INDIANA, 14 How. (U. S.) 208. 14 L. Ed. 416; Miners' Bank v. Iowa, 12 How. (U. S.) 1, 13 L. Ed. SG7; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; First Nat. Bank v. Yankton, 101 U. S. 129, 25 L. Ed. 104(]; Deitz v. Cen- tral, 1 Colo. 323; PEOPLE v. BUTTE, 4 Mont. 174, 1 Pac. 414, 47 Am. Tiep. 346; California v. Railroad Co., 127 U. S. 1, 39, 8 Sup. Ct. 1073, 32 L. Ed. 150. Tng.Corp. — 9 130 MUNICIPAL CORPORATIONS— CREATION. (Ch. 6 tained in the Constitution, and the implied grant of those powers essential to the exercise of the express powers, the authority of Congress to create municipal corporations within the territories of the national government is obvious and be- yond question. It has been upheld in several cases,^® and will probably never again be questioned. Power Inherent in State Legislature. The authority of the state legislatures to incorporate cities and towns as useful and indispensable agencies in the efficient administration of government is inherent and undoubted.^'' All legislative power not granted to Congress is reserved to the states. As a necessary consequence, a state legislature may enact any law not forbidden by the state or federal Con- stitution.^* The legislatures, therefore, of the several states i« Mcculloch v. maryiand, 4 wheat, (u. s.) sie, 4 l. Ed. .379; Thomson v. Railroad Co., 9 Wall. (U. S.) 579, 19 L. Ed. 792; Cal- ifornia V. Railroad Co., 127 U. S. 1, 39, S Sup. Ct. 1073, 32 L. Ed. 150; CHISHOLM V. GEORGIA, 2 Dall. (U. S.) 419, 1 L. Ed. 440; Hol- lingsworth v. Virginia, 3 Dall. (U. S.) 378, 1 L. Ed. 644; Osborn v. President, 9 Wheat. 738, 6 L. Ed. 204. "In organizing the government of a territory, Congress is limited to means appropriate to the attainment of the constitutional object. .\o powers can be exercised which are prohibited by the Consti- tution or which are contrary to its spirit, so that, whether the object may be the protection of the persons and property of purchasers of the public lands, or of communities who have been annexed to the Union by conquest or purchase, they are initiatory to the establish- ment of state governments, and no more power can be claimed or exercised than is necessary to the attainment of the end." DREl) SCOTT V. SANFORD, 19 How. (U. S.) 540, 15 L. Ed. 091. 17 People v. City of Riverside, 70 Cal. 461, 11 Pac. 759; TOWN OF NEW BOSTON v. DUNBARTON, 12 N. H. 409; HOPE v. nEADERICK, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431. IS Cooley, Const. Lim. (6th Ed.) p. 104; PEOPLE v. DRAPER, 15 N. Y. .532: THORPE v. RAILROAD CO., 27 Vt. 140, 62 Am. Dee. (;25; Andrews v. State, 3 Heisk. (Tenn.) .165, 8 Am. Rep. 8; Knox- ville & O. R. Co. Y. Hicks, 9 Baxt. (Tenn.) 442; Lewis' Appoal, 67 § 39) WHAT BODIES MAT GRANT CHARTERS. 131 have exclusive authority to create municipal corporations within the territorial limits of the states, in such manner and under such conditions as they may ordain.^' Under this ex- ercise of inherent power have been created the municipal cor- porations of this country, consisting of cities, boroughs, towns, and villages, numbering thousands ; and by these municipali- ties are administered all local municipal affairs of millions of people, involving an annual expenditure therefor of multi- plied millions of dollars. No Inherent Pozver of Creation in Territories. The territories possess no inherent or sovereign power. ^" Such power as they have has been expressly granted to them Pa. 153: Walker v. Cincinnati, 21 Ohio St. 14, 8 Am. Rep. 24; People V. Wright, 70 111. 388; Mason v. Wait, 5 111. 127; Adams v. Howe, 14 Mass. 340, 7 Am. Dec. 216; People v. Rucker, 5 Colo. 455; People V. Osborne, 7 Colo. 605, 4 Pac. 1074; Leggett v. Hmiter, 19 N. Y. 445; Cochran v. Van Surlay, 20 Wend. (N. Y.) 365, 32 Am. Dec. 570; Sears v. Cottrell, 5 Mich. 251; Boauchamp v. State, 6 Blackf. (lud.) 290. 19 1 Dill. Mun. Corp. § 38. In PEOPLE V. DRAPER, 15 X. Y. 561, Brown, J., said: "When the present Constitution was formed, the entire territory of the state was separated and appropriated by its civil divisions, its coun- ties, cities and towns. These civil divisions are coeval with the government. The state has never existed a moment without them. * * * They are permanent elements in tlie frame of government. They are institutions of the state, durable and indestructible by any power less than that which gave being to the organic law. They are, however, subject to control and regulation by the legislature." 2 Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; First Nat. Bank v, Yankton, 101 U. S. 129, 25 L. Ed. 1046; United States v. Church, 5 Utah, 361, 15 Pac. 473. The territorial legislature derives its creative power from Con- gress. Congress has no inherent power to create corporations, but only such as is granted to it by the federal Constitution, either ex- pressly, or by implication, as necessary to carry Into effect express powers. VINCEXNES UXIVERSITY v. INDIANA, 14 How. (U. S.) 268, 14 L. Ed. 416; Miners' Bank v. Iowa, 12 How. (U. S.) 1. 13 L. Ed. 867. 132 MUNICIPAL CORPORATIONS — CREATION. (Cll. 6 by Congress, and may be withdrawn at any time.'* The ex- tent of this power in each territory is dependent upon the terms of the organic act under which it has been established, or upon the general acts of Congress in regard to the terri- tories, and the powers to be exercised by their legislatures. Under an act authorizing the legislative assemblies of the sev- eral territories to pass general laws enabling persons to asso- ciate themselves together as bodies corporate for mining, man- ufacturing, and other industrial pursuits, power was claimed for the territorial legislature to incorporate a municipality; but this power was denied as not necessarily implied from the organic act or the general act aforesaid. The power has been implied, however, from a provision in the organic act granting to the territorial legislature power over "all rightful subjects of legislation." ^^ This general clause has been held sufficient to authorize the legislature to create municipal and other corporations within the territorial limits for the pur- pose of increasing the efficiency of the territorial government, and supplying the public needs. ^^ The power of the terri- torial legislature has also been challenged upon the ground that this power was expressly granted to Congress, and, being thus delegated to it, cannot be delegated by it to another body. This amounts to a general challenge of any legislative power in a territory, and has been uniformly overruled by the courts,^* 21 City of Seattle v. Yesler, 1 Wash. T. 571. 22 VINCENNES UNIVERSITY v. INDIANA, 14 How. (U. S.) 268, 14 L. Ed. 416; Burnes v. Mayor, 2 Kan. 454. See, also, State v. Young, 3 Kan. 445; KIDDICK v. AMELIN, 1 Mo. 7; PEOPLE v. BUTTE, 4 Mont. 179, 1 Pac. 414, 47 Am. Rep. 346. 23 Under the territorial organic act creating the territory of Colo- rado, the legislative assembly bad power to establish a municipal corporation. Deitz v. City of Central, 1 Colo. (1S72) 323. 2 4 RIDDICK V. AMELIN, 1 Mo. 5. It was held in this case that Congress could give and had given the power to legislate on such subjects. § 40) LEGISLATIVE DISCRETION. 133 LEGISLATIVE DISCRETION. 40. The exercise of the legislative functions of creating mu- nicipal corporations is iieholly xpithin the discretion of the Legislature, and not subject to the control of the judicial poxirer. Since the power of creating municipal corporations is vested exclusively in the legislature, and the duty thereof is often enjoined upon that department by constitutional provision,-^ the failure or refusal of the legislature to grant charters to towns, boroughs, or villages desiring them, as well as the enactment of such charters of incorporation for other com- munities not wishing to be incorporated, have often been the subject of spirited popular discussion, and have occasionally undergone investigation in the courts.^" For example, the former Constitution of the state of New York provided : "It shall be the duty of the legislature to provide for the organ- ization of cities and incorporated villages," etc.^^ Almost identical provisions exist in the Constitutions of Ohio, Michi- gan, Wisconsin, California, and other Western states.** Legislative Discretion Conclusive. It sometimes happens that persons residing in a village or hamlet are eager, for certain reasons, to have the same in- corporated, and they make application by petition to the leg- islature for that purpose. That body, in the exercise of its undoubted discretion as to what laws it will enact, sometimes refuses to respond favorably to the petition, and thus leaves the community in its unincorporated condition. This is con- 25 1 Dill. Mun. Corp. § 37. 26 Hill V. Higdon. S Ohio St 243, 67 Am. Dec. 289; Maloy v. Marietta, 11 Ohio St. cac. 2T Const. 1846, art. 8, § 9. 2 s Const. Ohio, 1851, art. 13, § 6; Const. Mich. 1859, art. 12, § 13; Const. Wis. 1848. art. 11, § 3; Const. Cal. 1849, § 37; Const. Or. 1857, art. n, § 5; Const. Kan. 1859. art 12, § 5; Const. Nev. 1864, art. 8. § 8: Const Neb. art. 8, § 4. 134 MUNICIPAL CORPORATIONS — CREATION. (Ch. 6 elusive upon the inhabitants.*® No power resides in any Other department of the government to compel the legislature to enact any law. Having exercised its discretion, the matter is at an end, and no record is found of any case in which the aid of the courts was invoked to compel the legislative as- sembly to perform the constitutional duty so imposed upon it.^° In other instances, yielding to the solicitations of a few persons, or moved by some other consideration, the legislature has granted charters to incorporate communities against the wish of a great majority of the people.'^ The legal remedy here is more obvious, and cases have arisen in which process has been obtained to enjoin the organization of a corporation under such charter. ^^ Occasionally it has happened that for violation of, or lack of conformity to, certain constitutional provisions prescribing the mode or condition of law-making, such charters have been held void by the courts ; ^^ but no case has been reported in which a court has assumed to enjoin the corporation from assuming and exercising its franchises for the reason that the legislature had acted unwisely or had 29 City of St. Louis v. Russell, 9 Mo. 508; City of St. Louis v. Allen, 13 Mo. 400; LARAMIE CO. v. ALBANY CO., 92 U. S. 307, 23 L. Ed. 552; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107: AVallace v. Trustees. 84 N. C. 164. See, also. DARTMOUTH COL- LEGE V. WOODWARD, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. 3 Dill. Mun. Corp. (4th Ed.) § 50. See, also, City of Galesburg V. Hawkinson, 75 111. 152; STATE v. ARMSTRONG, 3 Sneed (Tenn.) 634. But see, also, Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. 813; City of Burlington v. Leebrick, 43 Iowa, 252. 31 Cooley, Const. Lim. (6th Ed.) pp. 138, 139; People v. Bennett, 29 Mich. 451, where it was held that the question of incorporating a village could not be made a judicial one. See, also, State v. Simons, 32 Minn. 540, 21 N. W. 750; Ex parte Burns, 1 Tenn. Ch. 83; State V. Armstrong, 3 Sneed (Tenn.) 634. 3 2 City of Delphi v. Startzman, 104 Ind. 343, 3 N. E. 937; Town of Woodbury v. Brown, 101 Tenn. 707, 50 S. W. 743; Angel v. Spring City (Tenn. Ch. App.) 53 S. W. 191; State v. Frost, 103 Tenn. 6S5, 54 S. W. 986. 3 3 Town of Woodbury v. Brown, 101 Tenn. 707, 50 S. W. 743, § 40) LEGISLATIVE DISCRETION. 135 abused its discretion in granting the charter of incorporation. In states where there is no constitutional requirement for pop- ular assent to the erection of a municipality, the power of the legislature to create a municipal corporation is absolute, and its discretion in enacting the law has been uniformly held to be not a subject for inquiry or review by the courts.^* The Constitution has invested that department of the gov- ernment with the discretion to decide for itself and for the people how and when it will exercise this function^ ^ and per- form this duty ; and the general assembly having, in the ex- ercise of its undoubted constitutional power, decided that a certain village or hamlet ought to be incorporated, and en- acted the requisite legislation to that end, all inquiry as to the legislative motive or intention, except as appearing from the act itself, is excluded from judicial consideration.^* If 8* Cooley, Const. Lim. pp. 104-5. Speaking of the constitutionality of statutes passed by the legislatures, Judge Cooley says: "The rule of law upon this subject appears to be that, except where the con- stitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice, or not, in any particular case." An act creating a municipal corporation takes effect without ac- ceptance by the residents of the incorporated district. State v. Haines, 35 Or. 379, 58 Pac. 39. So "The legislative power we understand to be the authority, un- der the Constitution, to make laws, and to alter and repeal them." Cooley, Const. Lim. (Gth Ed.) p. 108. «* * * rpjjg frame of the government, the grant of the legis- lative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance; but independently of these restraints, express or implied, every subject within the scope of civil government is liable to be dealt with by the legislature." Denio, C. J., in PEOPLE v. DRAPER, 15 N. Y. 532. 543. 8 9 State V. Fuller, 96 Mo. 1G5, 9 S. W. 583; Rumsey v. People, 19 N. Y. 41; JAMESON v. PEOPLE, 16 111. 2.57, 63 Am. Dec. 304; Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319; People v. Maynard, 15 Mich. 463. And even when attacked on constitutional 13G MUNICIPAL CORPORATIONS CREATION. (Ch. 6 the act is constitutionally passed, the corporation is lawfully created, and that is an end of the matter. In some states, however, this power of creating involuntary municipal cor- porations does not exist in the legislature. This is true of Ohio, Massachusetts, and other states where there are con- stitutional provisions requiring the popular consent to the act of the legislature before the corporation can come into existence.^ '^ Many of the states of the West have embodied similar provisions in their Constitutions, and thus retained for the people of the towns the right of determining whether it is best for them to be incorporated, rather than submit this question to the legislative will.^^ But where this consti- tutional provision is not found for the protection of the local communities, the will of the legislature is supreme in the creation, alteration, and termination of municipal corpora- tions.** grounds, such attack cannot be sustained. Board of Com'rs for Filling Certain Slough Ponds v. Shields, 62 Mo. 247. If the state acquiesces in the validity of a municipal coi"poration for a long peri- od, it will be estopped from denying the vahdity of the incorporation. State V. Leatherman, 38 Ark. 81; People v. Maynard, 15 Mich. 463. See, also, COMMONWEALTH v. PLAISTED, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. 3T In Missouri the Constitution provides that no municipal cor- poration shall be created by special act unless the city contains at least 5,000 inhabitants, and in that case the special charter must be approved by a vote of the people. Const. ISO.j, art. 8, par. 5. The Massachusetts (amendment 2) Constitution provides that the Legis- lature may charter cities in towns having more than 12,000 inhab- itants. Const. Ohio, art. 13, par, 6; Const. 111. art. 10, par. 6. 3 8 Const. Mo. 1865, art. 8, par. 5. 39 Thomas v. Richmond. 12 Wall. (U. S.) 356, 20 L. Ed. 453; Demarest v. New York, 74 N. Y. 161; City of Lafayette v. Jenners, 10 Ind. 70; State v. Tipton, 109 Ind. 73, 9 N. E. 704; City of Pater- son v. Society, 24 N. J. Law, 3S5; BERLIN v. GORHAM, 34 N. H. 266; State v. Holden, 19 Neb. 249. 27 N. W. 120; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330; City of St. Louis v. Russell, 9 Mo. 508; City of St. Louis V. Allen, 13 Mo. 400. But In many states where there is no constitutional provision re- § 41) LEGISLATIVE POWER — HOW EXERCISED. 137 LEGISL-ATIVE PCWER—HOW EXERCISED. 41. Tlie legislatui-e, unless specially directed or limited by the Constitution, may, in its discretion, create corpo- rations (a) By a special charter; (b) Under general legislation authorizing the erection and organization of corporations in accordance 'nrith the popular ^vill. The former method was the one in general use in this country during the last century, and, indeed, is quite com- monly employed at present. In states even where the Consti- tution forbids the legislature to grant any special charter of incorporation, it has been ruled that such a constitutional in- hibition does not relate to public corporations.*** It is there- fore not uncommon, when a community desires a charter granting peculiar corporate privileges, or when a legislature thinks that a community should exercise corporate powers of a peculiar character or under special conditions, that a spe- cial act called a "charter" is enacted for such community. This is peculiarly true in regard to our great cities, all of which exist under elaborate charters specifying tb.e franchises, privileges, and powers of the corporation, the various depart- ments and officers thereof, the duties and powers of each, and, indeed, all other things supposed to be necessary to the well- being of the corporate community which can be enacted into quiring that the people of the proposed corporation determine by vote whether they shall be incorporated, it is not unusual for the legislature to submit the question to them, and the right of the legis- lature to do this does not seem to have been questioned. Cooley, Const. Lim. (6th Ed.) p. 139. *'> A provision that "no corporation shall be created, or its powers increased or diminished, by special law," applies to private coi'pora- tions only. Williams v. Nashville, 89 Tenn. 487, 15 S. W. 3G4; State V. Wilson, 12 Lea (Tenn) 24(1 But see In re Corporate I'owers of City of Council Grove, 20 Kan. 610; Ballentine v. Pulaski, 15 Lea (Tenn.) 633; Pell v. Newark, 40 N. J. Law, 71. 138 MUNICIPAL CORPORATIONS — CREATION. (Ch. Q general law.*^ This charter is the constitution of the munici- pality,*^ which under it may enact by-laws or ordinances not inconsistent with it or with the law of the land. This organic act generally specifies as corporators the names of a portion of the persons thus incorporated, and of the provisional offi- cers of the municipality to hold the offices and exercise their duties until the time fixed therein for a popular election. In those states wherein by Constitution it is necessary for the people to request or give assent to incorporation, such an act is nugatory until ratified, and the corporation remains in abeyance until such action was taken.*' If never taken, of course, the corporation never comes into existence. But in the great majority of the states no popular request or rati- fication is provided for by Constitution, and the enactment of the law creates the corporation, and the authorized persons may proceed at once to the exercise of the corporate func- tions.** The recent Constitutions of many states positively *i Nearly all the large American cities exist under special charters. St. Louis is in no county, but was formerly embraced within St. Louis county. The city now levies and collects city and state taxes within its municipal limits, and manages its own afairs free from all outside control except that of the state legislature. Voters of the city have the right to amend the charter at intervals of two years at a general or special election, providetl the proposed amendments have been duly sanctioned and submitted to the people by the munici- pal assembly. See Act Mo. 1841; City of St. Louis v. Russell, 9 Mo. 507. During the early days of San Francisco, there were separate gov- ernments for the city and county of ^>au Francisco. In 1856 the two governments were consolidated, and the consolidated govern- ment now consists of a mayor, twelve supervisors, and regular city and county officers. As to the dual nature of the government of San Francisco, see Kahn v. Sutro, 114 Cal. 310, 46 Pac. 87, 33 L. R. A. 620. 4 2 MT. PLEASANT v. BECK WITH, 100 U. S. 514, .524, 25 L. Ed. 099; 1 Dill. Mun. Corp. § 39; Cooley, Const. Lim. (6th Ed.) p. 227; Smith, Mun. Corp. § 60. 4 3 state V. Haines, 35 Or. 379, 58 Pac. 39. 4 1 PEOPLE V. BUTTE, 4 Mont. 174, 1 Pac. 414, 47 Am. Rep. 346; § 41) LEGISLATIVE POWER — HOW EXERCISED. 139 forbid the legislature to create municipal corporations by spe- cial legislation.*^ In these states no discretion is left to the legislature as to the manner in which this important function shall be performed. The only method whereby it can dis- charge its duty is general legislation.*® Usually an act is passed prescribing the conditions upon which communities may become incorporated as cities, boroughs, or villages, and directing the steps to be taken to bring about the incorporation. Ordinarily the provisions of such act are that, whenever the people residing within the boundaries containing a certain number of acres or square miles wish to become incorporated, they shall manifest that desire by public election ; and, if a majority of the qualified electors vote in favor of such a step, then the incorporation shall be effected by another election for choosing the necessary officers to manage and control the affairs of the municipality; whereupon the corporation shall become and be invested with certain powers, privileges, rights, and franchises specified and enumerated in the law.*^ This organization usually takes place under the direction of some court or other existing agency of the state, and the result of the popular action is properly recorded in a county office. The instrument that is recorded is likewise called a "charter," and, like the special charter, generally sets forth and enumer- ates all the powers, franchises, and privileges of the new cor- poration. Constitutional Provision for Vote of Majority of Voters. In many states it is provided by Constitution that no com- munitv shall be erected into a municipal corporation without PEOPLE Y. MORRIS, 13 Wend. (N. Y.) 325; Warren v. Cliarlestown, 2 Gray (Mass.) 184; STATE v. CURRAN, 7 Eng. (Ark.) 321; BER- LIN V. GORHAM, 34 N. H. 206. *5 Post, note 49; Smith, Mun. Corp. § 41. 48 1 Dill. Mun. Corp. § 45. 47 Alcorn v. Hamer, 38 Miss. 652; Bank of Chenango v. Brown, 26 N. Y. 467; Hobart v. Supervisors, 17 Cal. 23; People v. Salomon, ^1 111. 37; State v. Noyes, 30 N. H. 279. 140 MUNICIPAL CORPORATIONS — CREATION. (Ch. 6 the assent of a majority of the qualified voters expressed in a public election held for that purpose. In these states the legislatures usually refuse to take any action whatever until the election has been held and the popular choice expressed ; but in some instances, under peculiar provisions, the organic act has first been passed, and the popular assent given to the incorporation afterwards.*^ If the charter is granted before the election, it contains the provision that it shall not be ef- fective until the people shall have given their assent to the incorporation. Constitutional Inhibition of Creation by Special Law. In some states the Constitution provides that no corpora- tions shall be created by special law,*^ and in these the ques- ts Call V. Chadbourne. 46 Me. 206; CITY OF PATERSON v. SO- CIETY, 24 N. J. Law, 385; People v. Reynolds, 10 111. 1; Lafayette, M. & B. R, Co. V. Geiger, 34 Ind. 185. 49 City and County of San Francisco v. Waterworks, 48 Cal. 493; Oroville & V. R. Co. v. Supervisors, 87 Cal. 354; School Dist. No. 56 V. Insurance Co., 103 U. S. 707, 26 L. Ed. 601. The reason for this constit^'tional inhibition is ably stated by Deady, J., in Wells, Fargo & Co, v. Railroad Co. (C. C) 23 Fed. 469: "Everybody who is at all familiar with the history of the growth and organization of corporations in the United States knows that this rule, requiring corporations to be organized under a gen eral law, is the growth of some years, and has grown out of the confusion, corruption, the partial and inequitable legislation that was the result of allowing parties to go before the legislature and ask for a special charter. The time of the legislature was unneces- sarily consumed by it; the integrity of the members of the legislature was unduly exposed; or, through the ignorance or carelessness of the legislature, and the astuteness of designing and overreaching men, there were constantly coming to light obscure clauses in these acts of the legislature, giving powers and granting privileges which were unjust, inequitable, and which would never have been done with the knowledge of the legislature." In many states the Constitutions expressly provide that municipa! corporations shall not be created other than by general law. Const, Ohio, art. 13, § 6; Const. 111. art. 10, § 6; Const. Mich. art. 15, § 13: Const. V.'is. art. 11, § 3; Const. Ark. art. 12, § 3; Const. N. C art. 8, § 4; Const. Cal. art. 11. § 6; Const. Mo. art. 9, § 7. § 41) LEGISLATIVE POWER — HOW EXERCISED. 141 tion has arisen whether this inhibition includes municipal corporations. On this point the decisions are not uniform. The language employed in the various Constitutions is not uniform or identical, though the pivotal question in each case seems to be whether the general term "corporation" includes municipal corporations. In New York, Ohio, Kansas, and Nebraska, the decisions are to the eflFect that the word "cor- poration," or phrase "body politic and corporate," includes municipal corporations as well as private.^" But in New Jer- sey, Tennessee, and Rhode Island the holding is to the con- trary. ''^ In the states last named, and in others where there is no restriction upon the legislative power with respect to corporations, the legislative assemblies are free to choose the method by which municipal corporations shall be established. Self-Chartered Cities. In two states of the Union — Missouri^^ and California^^ — the legislative power and function in creating municipalities is reduced to its lowest terms by a constitutional provision that cities having more than 100,000 population may frame their charters for themselves, subject to certain restrictions and limitations expressed in the constitutional provision per- mitting it.^* Little else, therefore, remains for the legislature 60 Purdy v. People, 4 Hill, 384; State v. Mitchell, 31 Ohio St. 592; State v. Pugh, 43 Ohio St. 98, 1 N. E. 439; Citizens' Sav. Ass'n V. Topeka, 3 Dill. 376, Fed. Gas. No. 2,734; Dundy v. Board, 8 Neh. 508, 1 N. W. 565. See, generally, Commercial Nat. Bank v. City of lola, 154 U. S. 617, 14 Sup. Ct. 1199, 22 L. Ed. 463; Olcott v. Su- pervisors, 16 Wall. (U. S.) 678, 21 L. Ed. 382; School Dist. No. 56 V. Insurance Co., 103 U. S. 707, 26 L. Ed. 601. 51 Pell V. Newark, 40 N. J. Law, 550; State v. Narragansett, 16 R. I. 424, 16 Atl. 901, 3 L. R. A. 295 ; Luehrman v. Taxing Dist, 2 Lea (Teun.) 425. 52 Const, art. 9. § 10. 53 Const, art. 11, § 8. 64 Under the unique provisions of the Constitutions of these two states, the great cities of St. Louis and San Francisco framed and adopted their own charters in much the same manner as a state o Ida ins its own Constitution, thus affording practical examples of 142 MUNICIPAL CORPORATIONS CREATION. (Ch. to do in relation to these cities, than to declare them incor- porated, and even this may not be necessary. COMPLIANCE WITH CONDITIONS. 42. Substantial compliance xpitli the requirements of the gen- eral la\irs for municipal corporations is essential, and is sufficient. The creation of a legal body invested with functions of gov- ernment is too important to be passed over lightly. What- ever things, therefore, the legislature has prescribed as pre- requisites for the erection of a municipality, which pertains to its essential features and powers, must receive from the people about to enter into it such measure of compliance as evinces deliberate consideration by them before entering upon this important undertaking of local self-government. On the contrary, the interest of the citizens and of the public in an arm of the government is too great to allow little things to imperil its existence. Here applies the maxim, "De minimis non curat lex." The erection of a municipality is not aca- demic, but political ; and so the courts apply, in cases chal- lenging the existence of the corporations, those larger rules of life and action which pertain to pubUc affairs, and give sub- stantial justice. De Facto Corporations. From these considerations of public policy have arisen and Deen recognized a class of corporations, public as well as pri- vate, known as corporations de facto. ^^ Grammatically these bodies might be called quasi corporations, but legally they are wholly unlike that class of corporations. In fact, they are complete organizations ; in strict law, they are not corpora- municipal home rule and self-government without precedent in mod- ern times. Like opportunity is, of course, enjoyed by Kansas City and Los Angeles. 55 Smith. Mun. Corp. § 64; Johnson v. Okerstrom, 70 Minn. 303. 73 N. W. 147. § 42) COMPLIANCE WITH CONDITIONS. 143 tions. A corporation de facto is an existing corporation, de- fective in some essential feature of its organization, whose right to continued existence may be impeached only by the state in a direct proceeding for that purpose.^" Essentials of Existence. The judicial views of this class ot corporations are as variant as the social and political conditions of the states where they are entertained. In some of them it is apparently settled that, to constitute a corporation de facto, there must be (1) a valid law authorizing a corporation ; (2) an attempt in good faith to organize under it ; (3) a colorable compliance with this law ; (4) an assumption of corporate powers.^^ Other states,^^ 56 Mendenhall v. Burton, 42 Kan. 570, 22 Pac. 558. In most juris- dictions such a proceeding (quo warranto) is expressly authorized by statute. In the absence of statutory provision therefor, it may i>e maintained at common law. See Greene v. People, 150 111. 513, ■!7 N. E. 842; State v. Ackerman, 51 Ohio St. 163, 37 N. E. 828, 24 L. R. A. 298; State v. Webb, 97 Ala. Ill, 12 South. 377, 38 Am. St. Uep. 151; People v. Water Co., 97 Cal. 276, 32 Pac. 236, 33 Am. St. Kep. 172; Attorney General v, Lorman, 59 Mich. 157, 26 N. W. 311, 60 Am. Rep. 287; Hoi man v. State, 105 Ind. 569, 5 N. E. 702; Distilling & Cattle Feeding Co. v. People, 156 111. 448, 41 N. E. 188. 47 Am. St. Rep. 200; People v. De Grauw, 133 N, Y. 254, 30 N. E. 1006; Tennessee Automatic Lighting Co. v. Massey (Tenn. Ch. App.) 56 S. W. 35; Wyandotte Electric Light Co. v. City of Wyandotte, 124 Mich. 43, 82 N. W. 821; Continental Trust Co. v. Railroad Co. (C. C.) 82 Fed. 642. 5T Where it Is shown that there is a charter or a law under which ii corporation with the powers assumed might lawfully be iucorporat- od, and there is a colorable compliance with the requirements of the charter or law, and a user of the rights claimed under the charter or law, the existence of a corporation de facto is established. Stout V. Zulick, 48 N. J. Law, 599, 7 Atl. 362. See, also, Eaton v. Aspin- wall, 19 N. Y, 119; Society Perun v. Cleveland, 43 Ohio St. 481. 3 N. E. 357; Duggan v. Investment Co., 11 Colo. 113, 17 Pac. 105: Finnegan v. Noerenberg, 52 Minn. 239, 53 N. W. 1150. 18 L. R. A. 778, 38 Am. St. Kep. 552; Speer v. Board, 88 Fed. 74:), .VI C. C. A. 101; Donough v. Dewey, 82 Mich. 309, 46 N. W. 782; State v. Car- loll, 38 Conn. 449, 9 Am. Rep. 409. 58 Attorney General v. Town of Dover, 62 N. J. Law, 138, 41 Atl. 144 MUNICIPAL CORPORATIONS — CREATION. (Ch. 6 more lenient towards this class of corporations, declare that any statute, even though unconstitutional, is sufficient to au- thorize the creation of such a corporation ; and if there has been an effort in good faith, and in reasonable compliance with its requirements, to organize under it, there is a de facto cor- poration. In the midst of these widely divergent decisions, it is hazardous to attempt to state definitely the essentials of a corporation de facto which will be applicable in all the states. The words of Judge Thompson in his Commentaries on Cor- porations give a clear view of the state of American law on this subject: "Our decisions oscillate between two extreme views: (1) That, where a body of men act as a corporation in the ostensible possession of corporate powers, it will be conclusively presumed in all cases, except in a direct proceed- ing against them by the state to vacate their franchise, that they are incorporated. (2) That the conditions named in statutes authorizing the organization of corporations are con- ditions precedent that must be strictly complied with, or the corporation does not exist, and that the want of compliance with any one condition precedent may be shown by any one in a private litigation with a pretended corporation, unless he has estopped himself by his conduct from challenging its corporate existence, and frequently without reference to the question of estoppel," °° The sound doctrine of the law, as usual in such cases, is not to be found at either one of these extremes, and ultimately a general consensus of judicial opin- ion will doubtless establish the law on safe middle ground, consistent with the rule of compliance stated in the preceding paragraph. The judicial temperament among Anglo-Saxon peoples is moderate, conservative, and practical. It recognizes 98; Taylor v. Skrine, 3 Brev. (S. C.) 51G; Commonwealth v. Mc- Combs, 56 Pa. 43G; City of Guthrie v. Wylie, 6 Okl. 61, 55 Pac. 103; Cocke v. Halsey, 16 Pet. (U. S.) 71, 10 I>. Ed. 891; People ^ . White, 24 Wend. (N. Y.) 520; Carleton v. People, 10 Mich. 250: Gilkey v. ToAvn of How, IC.j Wis. 41, 81 N. W. 120, 49 L. K. A. 483. 5» 1 Thouip. Corp. § 495. 43) CORPORATIONS BY IMPLICATION. 145 and respects the old Latin maxim, "In medio tutissimus ibis." The tendency in America is towards uniform system of laws in the various states, and this is even more marked in judicial decisions than in legislation. CORPORATIONS BY IMPLICATION. 43. A corporation may be created by implication as xrell as by positive expression of the statute, provided there is a clear manifestation of legislative intention to consti- tute a corporation, or to invest it ■with, corporate pow- ers and franchises, or to recognize an existing body as having the essential franchises and povirers of a cor- poration. The usual words employed in a royal charter to constitute a corporation were, "Creamus, erigimus, fundamus, incorpora- mus" ®° ("We create, erect, found, incorporate"), though words of similar import and effect were held sufficient at the common law.*^^ For instance, a royal charter to the men of Dale to annually elect a mayor, and to plead and be impleaded by the name of mayor and commonalty, was held sufficient to incorporate thern.°^ So a grant by charter to the inhabitants of a town "to be a free borough," without any special word of creation or incorporation, is sufficient.*^^ And the omis- sion of words "to plead and be impleaded," or to "have a seal," or to make by-laws, would not be fatal; ®* nor would even the 60 1 Bl. Comm. p. 474. «i Id. See, also, Stebbins v. Jennings. 10 Pick. (Mass.) 172; Dean V. Davis, 51 Cal. 40G; Gaskill v. Dudley, C Mete. (Mass.) 54(), 39 Am. Dec. 750; Jordan v. Cass Co., 3 Dill. 185, Fed. Cas. No. 7,517; Propa- gation of Gospel Soc. V. Pawlet, 4 Pet. (U. S.) 480, 7 L. Ed. 927. 6:: 21 Edw. IV, 52. See Town of South Portland v. Cape Elizabeth, 92 ^le. 328, 42 Atl. 503, 69 Am. St. Rep. ."'02: :Montgomery Co. v. Menefee, 93 Ky. 33, IS S. W. 1021; Sedg- 158 MUNICIPAL CORPORATIONS ALTERATION. (Ch. 7 division of the property of the old municipality between the two parts thereof.^'' CONSOLIDATION. 49. Likewise it is competent for tlie legislature, unless for- bidden by tbe Constitution, to unite two or more dis- tinct municipalities having contiguous territory into a single municipal corporation, witbout tbe consent of tbose corporations or tbe people tbereof. Such consolidation of two separate corporations into a sin- gle one is but another illustration of the inherent and plenary power possessed by the legislature to create, control, and dissolve all municipal corporations.^* Since the legislature by one act might dissolve an existing corporation, and by two succeeding acts charter two other contiguous municipalities comprising the same territory, in the exercise of its conceded powers it may, of course, effect the same result by a single act, without circumlocution.-* It is competent, also, for the legislature, in case of such consolidation, to pro.ide for the disposition of the municipal funds in the several corporate treasuries, or past due at date of consolidation.^" Those items wick County Com'rs v. Bunker, 16 Kan. 498; Land, Log & Lumber Co. V. Oneida, 83 Wis. 649, 53 N. W. 491. 2 2 See cases cited in note 21; Town of South Portland v. Cape Elizabetli, 92 Me. 328, 42 Atl. 503, 69 Am. St. Rep. 502. In absence of legislative regulation, upon a division each portion will hold in severalty for public purposes the public property which falls within its limits. Prescott v. Lenox, 100 Tenn. 591, 47 S. W. ISl. 23 MT. PLEASANT v. BKCKWITH, 100 U. S. 514. 25 L. Ed. 699; Morgan v. Beloit, 7 Wall. ~(U. S.) 613, 19 L. Ed. 203; GIRARD v. PHILADELPHIA, 7 Wall. (U. S.) 1, 19 L. Ed. 53; True v. Davis, 133 111. 522, 22 N. E. 410, 6 L. R. A. 266; Daly v. Morgan, 69 Ud. 460, 16 Atl. 287, 1 L. R. A. 757; Thompson v. Abbott, 61 Mo. 176. 24 Cooley, Const. Lim. (6th Ed.) 228, note. 25 Burlington Sav. Bank v. Clinton (C. C.) 106 Fed. 269; Lake Charles Ice, Light & Waterworks Co. v. Lake Charles City, 106 La. 65, 30 South. 289. § 49) CONSOLIDATION. 159 of property belonging to the two old corporations so united, unless otherwise expressly provided, become the property of the new corporation, and the corporate indebtedness of the two former corporations becomes the indebtedness of the con- solidation.^^ If the legislature shall so choose to enact, one of these corporations may be merged into the other, or both may be consolidated into a new and distinct corporation.^^ It is usual to submit this question of consolidation by legis- lative enactment to a vote of the people of the several corpor- ations thus to be united ; *^ but, unless the Constitution so re- quires, it is competent for the legislature to make. a consoli- dation without consulting the wishes of the people.^" The act of consolidation in such cases is said to be an official and peremptory expression of the legislature that such consolida- tion will promote the public welfare, and from this enact- ment there is no appeal.^** Until the common council of the consohdated city shall enact a code of ordinances for the gov- ernment of the new municipality, the ordinances of the two 2 6 MT. PLEASANT V. BECK WITH, 100 U. S. 514, 25 L. Ed. 699; Inhabitants of North Yarmouth v. J^'.killings, 45 Me. 133, 71 Am. Dec. .■)30; Winters v. George, 21 Or. 251, 27 Pac. 1041; Thompson v. Ab- bott, 61 Mo. 176; Smith v. Saginaw, 81 Mich. 123, 45 N. W. 964; Stone V. Charlestown, 114 jSIass. 214; Dousman v. Milwanliee, 1 Pin. (Wis.) SI; Watson v. Commissioners, 82 N. C. 17; De Mattos v. New What- com, 4 Wash. 127, 20 Pac. 933. 27 Tied. Mun. Corp. § 58. 2 8 See cases cited in note 26. 29 Citj' of New Orleans v. Waterworks Co., 142 U. S. 79, 12 8up. Ct. 142, 35 L. Ed. 943; State v. Kolsem, 130 Ind. 434, 29 N. E. .595, 14 L. R. A. 566; Essex Public Road Board v. Skinkle, 140 U. S. 334, 11 Sup. Ct. 790, 35 I.. Ed. 446; Madry v. Cox, 73 Tex. 538, 11 S. W. 541; SmiOi v. People, 154 111. 58, 39 N. E. 319; State v. Bab- cock, 25 Neb. 709, 41 N. W. 654; City of Quincy v. O'Brien, 24 111. App. 591; In re Strand (Cal.) 21 Pac. 6.54; In re Canal St., 18 R. I. 129, 25 Atl. 975; City of Uiehmoud v. Railroad Co., 21 Grat. (Va.) 004; Common Council of City of Muskegon v. Gow, 94 Mich. 453. 54 N. W. 170; Commonwealth v. Macferron, 152 Pa. 244, 25 Atl. 556, 19 L. R. A. 568. 30 Smith, Mun. Corp. § 407. 160 MUNICIPAL CORPORATIONS ALTERATION. (Ch. 7 former cities will be and remain in force within the territory of the old cities, respectively." LEGISLATIVE POWER— INHERENT AND PLENARY. 50. The inherent and plenary power of the legislature over a municipal corporation extends to the amendment of its charter in such manner and to such extent as may seem -wise to the legislature. This is another corollary from the inherent power of the legislature over these agencies of government. The legisla- ture in the first instance decided and declared what powers should be exercised by the municipality, and how it should exercise them. New conditions arising may justly require a curtailing or enlargement of these powers, or a change in the mode of their exercise.^- A new legislature may assem- ble with new light upon the subject of corporations, and, in its wisdom, may add to or take from the municipal powers of one or of many corporations ; and this may be done by gen- eral laws or by special laws, when not constitutionally for- bidden.^* An entirely new charter may be enacted for the 31 Camp V. Minneapolis, 33 Minn. 461, 23 N. W. 845; Village of North Springfield v. Springfield. 140 111. 165, 29 N. E. 849; Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13; Smith v. People, 154 111. 58. 39 N. E. 319. 3 2 City of Reading v. Keppleman, 61 Pa. 233; Crook v. People, 106 111. 237; MERIWETHER v. GARRETT, 102 U. S. 472, 26 L. Ed. 197; Daniel v. Mayor, 11 Humph. (Tenn.) 582; GIRARD v. PHIL- ADELPHIA, 7 Wall. (U. S.) 1, 19 L. Ed. 53; City of Indianapolis V. Gaslight Co., 66 Ind. 39o: PEOPLE v. MORRIS, 13 Wend. (N. Y.) 325; CITY OF PHILADELPHIA v. FOX. 64 Pa. 169. 33 SLOAN V. STATE, 8 Blackf. (Ind.) 361; Crook v. People, 106 III. 237: Churchill v. Walker, 68 Ga. 681; Pancoast v. Troth, 34 N. .1. Law, 379; Wallace v. Trustees, 84 N. C. 164; State v. Palmer, 10 •Neb. 203, 4 N. W. 960. But a general clau.«:e repealing all acts contrary to its provisions will not repeal the provisions of tlie charter, unless the intent of the legislature to effect such repeal is clen''. Fish v. Branin, 23 N § 60) LEGISLATIVE POWER — INHERENT AND PLENARY. 161 new corporation, or specific amendments made to the orig- inal.** Amendments may be made to the general corporation laws, or new general laws may be enacted, which will have the effect of modifying the charter. Any or all of these modes of amendment are open to the legislature, subject, of course, to constitutional limitations.'"^ If these laws, or any of them, in their operation and effect upon the municipal char- ter, are challenged in the courts for unconstitutionality, the question is to be tried by the same rules and standards as those arising upon other legislative enactments.' •* It is easy to see how a department of the government having power to create and to dissolve a municipality at pleasure should like- wise have the power to change or alter its creature while ex- isting under the jurisdiction of its creator. The only limita- tions upon this power are such as arise from conflict with vested rights, or from express constitutional provisions.'^ J. Law, 484; Cross v. Mayor, 33 N. J. Law. 57; Bodine v. Common Council, 36 N. J. Law, 198; City of Cumberland v. Magi-uder. 34 Md. 381; People v. Clunie, 70 Cal. 504, 11 Pac. 775; City of East St. Louis V. Maxwell, 99 111. 439; City of Griffin v. Inman, 57 Ga. 370; City of Harrisburg v. Sheck, 104 Pa. 53; Bond v. Hiestand, 20 La. Ann. 139; Tierney v. Dodge, 9 Minn. 166 (Gil. 15.3). 3 4 1 Smith, Mun. Corp. § 116; Tied. Miin. Corp. §§ 32, 44. 3 5 State V. Toledo, 48 Ohio St. 112, 23 N. E. 1061, 11 L. R. A. 729; City of Indianapolis v. Gaslight Co., 66 Ind. 390; PEOPLE v. MOR- RIS, 13 Wend. (N. Y.) 325; Daniel v. Mayor, 11 Humph. (Tenn.) 582; Crook V. People, 106 111. 237; State v. Palmer, 10 Neb. 203, 4 N. W. 966; Rose v. Hardie, 98 N. C. 44, 4 S. E. 41; Churchill v. Walker, 68 Ga. 681. 36 Bowyer v. City of Camden, 50 N. J. Law, 87, 11 Atl. 137; New Bedford & F. S. R. Co. v. Achushnet S. R. Co.. 143 Mass. 200. 9 N. E. 536; Board of Socorro County Com'rs v. Leavitt, 4 N. M. (Gild.) 37, 12 Pac. 759; Moran v. Long Island City, 101 N. Y. 439. 5 N. E. 80; State v. Spaude, 37 Minn. 322, 34 N. W. 164; Thomason V. Ashworth, 73 Cal. 73, 14 Pac. 615; Smith v. Kernocheu, 7 How. (U. S.) 198, 12 L. Ed. 666; Powell v. Parkersburg. 28 W. Va. 69S; King County Com'rs v. Davies, 1 Wash. St. 200. 24 Pac. 540. 3T In TOWN OF EAST H,\RTFORD v. BRIDGE CO., 10 How. (U. S.) 534, 13 L. Ed. 528, Woodbury, J., said: "* • * One of the INQ.COBP. — 11 162 MUNICIPAL CORPORATIONS — ALTERATION. (Cll. 7 The decisions upon the exercise of this power are in apparent conflict, but may, perhaps, all be harmonized by recognizing, Here as elsewhere, the dual character of the municipality, and the two classes of functions it must perform. In some states this right to amend a municipal charter is limited by a con- stitutional provision guaranteeing local self-government to the people. This right of the people has been upheld in well- considered decisions in New York,^* Michigan, ^^ and In- diana. *° The general doctrine is as stated by the Supreme Court of Massachusetts : *^ "We cannot declare an act of the legislature invalid because it abridges the privileges of self- government in a particular in regard to which such privilege is not guarantied by the provisions of the Constitution." And Mr. Justice Field, touching the dissolution of the municipal- ity of Memphis,*^ said : "There is no contract between the state and the public that the charter of a city shall not at all times be subject to legislative control. There is no such thing as a vested right held by any individuals in the grant of leg- islative power to a municipality." And the Supreme Court of Maryland has declared that the recognition of a city charter highest attributes of a legislature is to regulate public matters with all public bodies, no less than the community, from time to time, in the manner which the public welfare may appear to demand. It can neither devolve these duties permanently upon other public bodies, nor permanently suspend or abandon them itself, without being usually regarded as unfaithful, and, indeed, attempting what is wholly beyond its constitutional competency. It is bound, also, to continue to regulate such public matters and bodies as much as to organize them at first. 3 8 People V. Albertson, 55 N. Y. 50. 39 PEOPLE V. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; PEOPLE V. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. 40 STATE V. DENNY, 118 Tnd. 382, 449, 21 N. E. 252, 274, 4 L. R. A. 65, 79; Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. *i CO:HMONWEALTH v. PLAISTED, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142. 12 Am. St. Rep. 566. 42 MERIWETHER v. GARRETT, 102 U. S. 472, 26 L. Ed. 197. § 51) REPEAL OF CHARTER AXD DISSOLUTION. 163 in the Constitution of the state does not place it beyond legis- lative control.*' Nor will this power be impaired by the fact that the existing charter had been continued in force by a new Constitution of the state.** And again, in the case of Girard v. City of Philadelphia,*^ the Supreme Court of the United States declared this legislative power not to be af- fected by the fact that by the terms of its charter the city was made the trustee of a generous charity.*^ Even the dissolu- tion of a corporation trustee would not affect the trust, since a court of chancery would either assume its execution, or ap- point a new trustee.*'' REPEAL OF CHARTER AND DISSOLUTION. 51. Tlie legislature may, at its pleasure, repeal the charter of a municipal corporation, and thereby terminate its existence. Here, again, we have another illustration of the sole author- ity of the legislature in matters of municipal corporations. It can create, regulate, and destroy, and there is no other body or department of government which possesses this power.* ** 4 3 MAYOR OF BALTIMORE v. STATE, 15 Md. 376, 74 Am. Dec. .-.72. 44 Wiley V. Bluffton, 111 Ind. 152, 12 N. E. 165. 45 7 Wall. 1, 19 L. Ed. 53. 46 The courts have likewise sustained similar devises for municipal charities by McDonogh for the poor of New Orleans and Baltimore (McDonogh'a Ex'rs v. Murdoch, 15 How. [U. S.] 367, 14 L. Ed. 732); by McMicken for public education in Cincinnati (Perin v. Carey, 24 How. [U. S.] 465, 16 L. Ed. 701) ; and by Mullanphy for immigrants and travelers in St. Louis (Chambers v. St. Louis, 29 Mo. 543). 47 CITY OF PHILADELPHIA v. FOX, 64 Pa. 169; Smith v. West- cott. 17 R. I. 360, 22 Atl. 280, 13 L. R. A. 217; GIRAKD v. PHILA- DELPHIA, 7 Wall. (U. S.) 1, 19 L. Ed. 53; LUEHRMAN v. TAXING DIST., 2 Lea (Tenn.) 425. 48 "All our thoughts and notions of civil government are insep- arably associated with cities, counties, and towns. They are per- manent elements in the frame of government. They are institu- 164 MUNICIPAL CORFORATIONS ALTERATION. (Cll. 7 The government possesses this power in England, but the King does not.*'* His prerogative is to create. He cannot destroy. Parliament alone is omnipotent.*** In England mu- nicipal corporations might also be dissolved by the loss of an integral part thereof,^^ or by the surrender of franchises, ^^ or by a forfeiture of its charter judicially decreed in proceedings by scire facias or quo warranto. °* These last two methods certainly are not recognized in America.** The legislature having ordained that there shall be a corporation, the citizens thereof cannot nullify that edict by a surrender of the fran- chise ; nor by neglect to exercise the powers and privileges conferred by the charter can they subject the corporation to forfeiture of its franchise.** The loss of an integral part tions of thp state, durable, and indestructible by any power less than that which gave being to the organic law. They are, however, subject to control and regulation by the legislature. It may en- large or circumscribe their territorial limits, increase or diminisli their members, separate them into parts, and annex some of the parts to others." People v. Draper. 15 N. Y. 561, per Brown, J. 4» 1 Beach, Pub. Corp. § 25; 2 Kent, Comm. 305; Coke, Litt 17G, note; Rex v. Amory, 2 Term R. 515. See, also, EASTMAN v. MEREDITH, 36 N. H. 284, 72 Am. Dec. 302; City of St Louis v. Allen, 13 Mo. 400. 50 Glover, Mim. Corp. 24; 1 Dill. Mun. Corp. § 33; 1 Kyd. Corp. 61 ; Willc. Mun. Corp. 63, 64 ; Coke, Litt. 176 ; Rex v. Amory, 2 Term R. 515; 2 Kent, Comm. 305; Regents of University v. Williams, 9 Gill & J. 365, 409, 31 Am. Dec. 72. 51 Rex V. Morris, 3 East, 215; Rex v. Stewart, 4 East, 17; Rex v. Pasmore, 3 Term R. 241; Regina v. Bewdley, 1 P. Wms. 207; Ban- bury Case, 10 Mod. 346; Rex v. Tregony, 8 Mod. 111. 52 Rex V. Osboume, 4 East, 326; Rex v. Miller, 6 Term R. 268; Howard's Case, Hut. 87; Grant, Corp. 306. 5 3 Rex v. Grosvenor, 7 Mod. 199; Smith's Case, 4 Mod. 55; Rex V. Saunders, 3 East, 119; Rex v. Kent, 13 East, 220; Attorney General v. Shrewsbury, 6 Beav. 220. 54 State V. Waggoner, 88 Tenn. 293, 12 S. W. 721; State v. Wil- son, 12 Lea (Tenn.) 246; LUEHKMAN v. TAXING DIST., 2 Lea (Tenn.) 425; Williams v. Nashville, 89 Tenn. 487, 15 S. W. 364. 66 State V. Dunson, 71 Tex. 65, 9 S. W. 103; Buford v. State, 72 § 51) REPEAL OF CHARTER AND DISSOLUTION. 165 of a municipal corporation would practically destroy it, as if the people should all remove from the territory/^ or it should be swallowed by an earthquake or volcanic eruption. The corporations of Herculaneum and Pompeii were as effectually destroyed as the cities themselves, and it cannot be doubted that a municipal corporation would be as effectually destroyed by American as by Roman ashes and lava. Dissolution — Form. Historically, however, and legally too, the only form of dis- solution known to American municipalities is legislative.^'^ The motive, manner, time, or form of the enactment is not material. The legislative motive cannot be questioned judi- cially.^® The age or youth of the corporation will not protect Tex. 182, 10 S. W. 401; Morris v. State, 65 Tex. 53. In the last- uamed case the court said: "It is extremely doubtful whether a municipal coi"poration can, by a mere disclaimer, surrender a fran- chise in which not only the corporation, but a large portion of tlu' state's population residing within the city's limits, as well as of the commercial world, are interested." In Hambleton v. Dexter, 89 Mo. 188, 1 S. W. 234, it was held that franchises granted to municipal corporations cannot be surrendered by them. 56 Tied. Mun. Corp. § 38. 57 LUEHRMAN v. TAXING DIST., 2 Lea (Tenn.) 425; Willfams V. Nashville, 89 Tenn. 487, 15 S. W. 364; State v. Wilson, 12 Lea (Tenn.) 246; State v. Waggoner, 88 Tenn. 290, 12 S. W. 721. In People T. Hill, 7 Cal. 97, the court said: "And as a city may, by leg- islative enactment, spring from the body of the county, being the first subdivision of the territory and political power of the state, there is no reason in law why it may not be resolved back to its original elements, or why the power that has called this political being into existence may not again destroy it. There is no limita- tion on the power of the legislature in this respect, and economy and convenience may often require that an act incorporating a city should be repealed, and the inhabitants thereof placed in their original situation." See, also. State v. Hamilton, 40 Kan. 323, 19 Pac. 723; State V. Osborn, 36 Kan. 530, 13 Pac. 850; State v. Meadows, 1 Kan. 90; Dimcombe v. Prindle, 12 Iowa, 1. •8 "Restraints on the legislative power of control muBt be found 166 MUNICIPAL CORPORATIONS — ALTERATION. (Ch. 7 it. The form of the act of repeal is immaterial, if it comply with the constitutional requirement. It may be special or general, as legislative wisdom shall decide. Whenever and however, and from whatever motive or purpose, the legisla- ture shall repeal the charter of a municipal corporation, its life is ended. ^^ The oft-asserted limitations upon this legis- lative power, the exercise of which may prove drastic and destructive of the interests of individuals and communities un- less directed by prudence and caution, are of two kinds : (a) Positive inhibitions expressed in the Constitution ; ^° and (b) property rights vested or protected by constitutional guaran- ties which would be destroyed or impaired by such legi sla- in the Constitution of the state, or they must rest alone in the legis- lative discretion." Cooley, Const. Lim. (6th Ed.) p. 229. "Where a corporation is the mere creature of legislative will, established for the general good, and endowed by 'the state alone, the legislature may, at pleasure, modify the law by which it was created. For in that case there would be but one party affected — the government itself — and therefore not a contract within the meaning of the Constitution. * * *" Montpelier Academy Trus- tees V. George, 14 La. 406, 33 Am. Dec. 585. If the legislative action in such cases of repeal operates injuriously to the municipalities or to their inhabitants, the remedy is not with the courts. They have no power to interfere. City of St. Louis v. Allen, 13 Mo. 400. 5 MERIWETHER v. GARRETT, 102 U. S. 472, 26 L. Ed. 197; REES V. WATERTOWN, 19 Wall. (U. S.) 107, 22 L. Ed. 72; Amy V. Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. Ed. 946; Heine V. Levee Com'rs, 19 Wall. (U. S.) G55, 22 L. Ed. 223; Amy v. Selma. 77 Ala. 103; LUEHRMAN v. TAXING DIST., 2 Lea (Tenn.) 425- CITY OF MEMPHIS v. WATER CO., 5 Heisk. (Tenn.) 495; Lynch v. Lafland, 4 Cold. (Tenn.) 96. In the case of Luehrman v. Taxing Dist, supra, Cooper, J. said: "Being created as instrumentalities or arms of the government, they cannot be continued in that capacity whenever the public exigency, of which the legislature alone is judge, demands that they should cease to act.'" See, also, PEOPLE v. MORRIS, 18 Wend. (N. Y.) 325, 331; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103. 60 Smith, Mun. Corp. § 116. § 51) REPEAL OF CHARTER AND DISSOLUTION. 167 tion.'^ A legislative act repealing a municipal charter, when forbidden by the Constitution, would, of course, be void, and would not effect or authorize a dissolution of the corporation; but the interests of the people of the municipality or of its creditors in its quasi private property would not prevent a repeal of the charter, and the consequent dissolution of the corporation. Its estate may then be administered, and its as- sets equitably applied and distributed.®^ Usually the means and method of this administration are provided for in the stat- ute which enacts the dissolution of the corporation. The mu- nicipal corporation, being dual in its nature, necessarily has powers, privileges, and property of a purely local or private character, not subject to the unlimited legislative power, but exempt therefrom in some states by a provision made for the protection of the community, in others by one made for the protection of creditors whose rights are always and every- where protected by the contract clause of the federal Consti- tution, and the decision in the Dartmouth College Case apply- ing and enforcing the same.** The citizens and creditors of the corporation, having these vested rights in certain prop- erty, franchises, and powers of the corporation, may protect and assert them through recognized remedies in the courts of law and equity, state or federal. If creditors have liens upon any of the municipal property, they may pursue their remedy in the courts after dissolution of the municipality as well as before. If the legislature fails to provide for them, the courts of justice are open to afford them remedy and re- lief. The act of the legislature effects the dissolution of the corporation. The pursuit of these remedies by the citizens 61 Morris v. State, 62 Tex. 728; Board of Councilmen of City of Frankfort v. Mason, 100 Ky. 48, 37 S. W. 290. 62 LUEHRMAN v. TAXING DIST., 2 Lea (Tenn.) 42,5; City of Cin- cinnati V. Cameron. 33 Ohio St. 336; Ellermun v. McMauis, 30 La. Ann. 190, 31 Am. Rep. 218. 68 1 Dill. Mun. Corp. §§ 66-69. 168 MUNICIPAL CORPORATIONS — ^ALTERATION. (Ch. 7 and creditors is simply the administration of the estate of the deceased.®* •* The measure of this relief is not full or certain on account of the public nature of the coi-poration. the legislative control, and the sovereignty of the state. MERIWETHER v. GARRETT, 102 U. S. 472, 26 L. Ed. 197; Seibert v. I^wis, 122 U. S. 284, 7 Sup. Ct. 1190. 30 L. Ed. IIGI; PORT OF MOBILE v. WATSON, 116 U. S. 289, 6 Sup. Ct. 398, 29 L, Ed. 620; Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Amy v. Selma, 77 Ala. 103; MT. PLEASANT v. BECKWITH, 100 U. S. 514, 25 L. Ed. 699; Ajny v. Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. Ed. 946. § 62) THE CHARTER. 169 CHAPTER Vin. THE CHARTER. 52. Municipal Corporations under General and Special Law. 53. Charter Powers Classified. 54. What Constitutes Municipal Membership. 55. Territorial Limit of Municipal Authority. 56. Acceptance of Charter by Citizens Unnecessary. 57. Judicial Notice of Special Charter. 58. Certificate of Organization under General Law to be Pleaded. 59. Municipalities under General Legislation. 60. Municipal Powers : Expressed — Implied — Inherent 61. No Particular Form of Charter Required. 62. Legislative Power to Repeal Charter. MTJNICIPAL CORPORATIONS UNDER GENERAI. AND SPE- CIAL LAAV. 62. Municipal corporations in the United States, xritli refer- ence to tlie mode of their creation, are divisible into tmro great classes: (a) Corporations created by special act of the Legislature; (b) Corporations organized under general incorporation stat- utes. Every municipal corporation has, or should have, as a urar- rant for its existence and authority, some official docu- ment issued under la^v by some duly constituted min- isterial agent, shouting its constitution and the limits of its authority. This document, Mtrhich is generally called its charter, when issued under a special act, is usually in the form of a duly certified copy of such special act under the great seal of the state; but, ^vhen issued under the authority of general statutes, it may take the form of either a charter, or a court decree, or a certificate shouring the fact of incorporation for municipal purposes. This document may contain a description of the territory, and a full outline of the poAvers, such as appears in special charters, or it may be merely a certificate of the fact of incorporation of the specified municipality, in ^vhich case reference siust necessarily be had to the 170 THE CHARTER. (Ch. S general statutes for po\(rers and privileges, and to other official documents shoiving boundaries and other details as essential conditions precedent to the grant- ing of the charter. A municipal charter, \irhatever be its form, is a ijnritten doc- ument constituting the persons residing ^vithin a fixed boundary, and their successors, a body corporate and politic for and within such boundary, and prescribing the po^vers, privileges, and duties of the corporation. "A municipal charter granted by the crown in England is a written instrument in the form of letters patent, with the great seal appended to it, addressed to all the subjects, and constituting the persons therein named, and their successors, a body corporate for or within the place therein specified, and prescribing the powers and duties of the corporation thereby created." ^ The power to grant this charter has been called the "flower of the prerogative." - And yet a municipality thus created possesses only the common-law powers and qualities of a corporation. Indeed, royal charters were granted only to organized communities having already a recognized municipal existence.^ Where privileges and powers are to be conferred which are not recognized by the common or statute law — where special and unusual powers are to be granted — an act of Parliament is necessary, giving a special charter to the corporation.* Moreover, the royal charter is wholly inoper- ative until accepted by the persons therein .named as incor- porators, whereas the parliamentary charter is a public law which all subjects are bound to obey."* Prescription and Implication. Excepting only municipalities by prescription and at com- mon law, all municipal corporations in England — even those 1 1 Dill. Mun. Corp. § 82. 2 Willc. Mnn. Corp. 25. s PEOPLE V BENNETT, 29 Mich. 451, 18 Am. Rep. 107. 4 1 Kyd, Corp. Gl; EASTMAN v. MEREDITH. 3G N. H. 284. 72 Am. Dec. 302. 5 Ang. & A. Corp. § 69; CITY OF PATERSON v. SOCIETY, 24 N. J. Law, 385. § 52) GENERAL AND SPECIAL LAW. l*?! called municipal corporations by implication — have their mu- nicipal charters. The municipal corporation by implication re- lies upon a royal charter or act of Parliament for its exist- ence and authority. There is an omission, however, in the act or charter to expressly declare the community a corpora- tion ; and so its corporate character must be implied from the charter, and the extent of the powers therein conferred upon it. Municipal corporations by prescription and implication have been held to exist in the United States." Charter Outlined. In the American democracy our modern charters are all framed upon the same general model as the parliamentary charters,^ but there is great variety in the special powers con- ferred. An outline of the general features of the modern charter for an American municipality is the following : (1) The inhabitants of the town or city by its proper name are constituted a body politic and corporate, with right of perpetual succession, and power to use a common seal, sue and be sued, purchase and hold property, etc. (2) The territorial boundaries are distinctly defined, and the division of the territory into wards. (3) The governing body of the corporation is ordained, composed of one or two bodies, and usually called aldermen or councilmen. (4) The qualifications of the voters are prescribed, commonly the same as voters at state elections ; but sometimes the voters are required to be property owners residing within the cor- porate limits, or owners of real estate within the Hmits resid- ing elsewhere. 8 Trott V. Warren, 11 Me. 227 ; BOW v. ALLENSTOWN, 34 N. H. 351, 69 Am. Dec. 489; Inhabitants of Stockbridge v. West Stock- bridge, 12 Mass. 400; Sherrj' v. Gilmore, 58 Wis. 324. 17 N. W. 252; Austrian v. Guy (C. C.) 21 Fed. 500; THOMAS v. DAKIN, 22 Wend. (N. y.) 9; People v. Farnham, 35 111. 562. T 1 Dill. Mun. Corp. §§ 8, 36, 41. 172 THE CHARTER. (Ch. 8 (5) The officers to be chosen, and the mode of their election. (6) An enumeration of the powers of the city council, such as to levy and collect taxes, make local improvements, enact local ordinances, punish violations thereof, borrow money, make streets, hold courts, and numerous other appropriate mu- nicipal powers. This charter, resembling the constitution of the state, is the paramount law of the municipality.* To it resort must neces- sarily be had to determine questions of municipal law and power. But with it must be considered, also, the state stat- utes and Constitution, and the general jurisprudence of Amer- ica, and the public policy of the state.® Under familiar rules, as we shall see more fully herein- after, those provisions of the special charter which are in con- travention of the Constitution are, like any other unconsti- tutional statute, void; but such result does not follow from their conflict with a preceding general statute.^*' A subse- quent general statute, however, may operate to repeal charter provisions in conflict with it, as will also, of course, any sub- sequent constitutional provision, for it is the paramount law of the state, and to it all legislation, previous or subsequent, not granting vested rights, must yield.^* 8 Bouv. Law Diet. tit. "Charter." The rule is general, and applicable to the corporate authorities of all municipal bodies, that, where the mode in which their power on any given subject can be exercised is prescribed by their charter, the mode must be followed. Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96. » Taylor v. Griswold, 14 N. J. Law, 222, 27 Am. Dec. 33; Cooley. Const. Lim, (6th Ed.) pp. 238, 239; City of Mt. Pleasant v. Breeze, 11 Iowa, 399; City of Ft. Scott v. Brokerage Co., 117 Fed. 51, 54 C. C. A. 437. 10 Babcock v. Helena, 34 Ark. 499; Thomason v. Ashworth, 73 Cal. 73, 14 Pac. 615; State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Gorum v. Mills, 34 N. J. Law, 177 ; CITY OF MOBILE v. DARGAN, 45 Ala. 310; City of Leavenworth v. Norton, 1 Kan. 432. 11 Daniel v. Mayor, 11 Humph. (Tenn.) 582; State v. Mayor, 24 Ala. 701; PEOPLE v. MORRIS, 13 Wend. (N. Y.) 325; Wallace v. § 62) GENERAL AND SPECIAL LAW. 173 General Welfare Clause. The enumeration of special powers in a municipal charter is often concluded with a clause conferring general authority to pass all ordinances which may be necessary for the pro- motion of good order and the general welfare of the munici- pality, and are not inconsistent with the Constitution and gen- eral laws of the state. In some special charters there is no enumeration of the subjects upon which the corporation shall have power to legislate, but only a general grant of power to pass all ordinances which are necessary to the good order and well-being of the corporation.^^ In either case this "general welfare clause" must be construed as conferring no other powers than such as are within the ordinary scope of munici- pal authority, or which are necessary to accomplish municipal purposes. ^^ The distinction to be observed between the two charters in construing their provisions is considered by Judge Dillon to be essential, "for the powers granted by the general welfare clause, if not stated alone, may be limited, qualified, or, when such intent is manifest, impliedly taken away, by pro- visions specifying the particular purposes for which by-laws may be made." ^* On the other hand, it would seem that since, under the general welfare clause, the corporation obtains all the usual and necessary powers of the municipality, the specific enumeration of powers might confer others not usual : and thus the charter, containing both specific enumeration and general welfare clauses, might give more powers than one Trustees, 84 N. C. 164; Wiley v. Bluff ton. 111 Ind. 152, 12 N. E. 165; Chicago & E. R. Co. v. Keith, 67 Oliio St. 279, 65 N. E. 1020, 60 L. R. A. 525; Oslikosli Wate^orks Co. v. Oshkosli, 187 U. S. 437, 23 Sup. Ct. 234, 47 L. Ed. 249; CITY OF MOBILE v. DARGAX. supra. 12 1 Beach, Pub. Corp. §§ 583, 1269; Tied. Mun. Corp. § 135; City of Nashville v. Linck, 12 I^a (Tenn.) 499; City of Brooklyn v. Furey. 9 Misc. Rep. 193, 30 N. Y. Supp. 349. !•» Spaulding v. Lowell, 23 Pick. (Mass.) 71; City of New Orleans V. Pbilippi, 9 La. Ann. 44; City of Leavenworth v. Norton, 1 Kan. 432. But see Cross v. Morristown, 33 N. J. Law, 57. 1* 1 Dill. Mun. Corp. § 315. 174 THE CHARTER. (Ch. 8 conferring powers only by the general welfare clause. In case of challenge of municipal power, it is probable that the result would depend upon the question whether the court leans towards the doctrine of strict construction, rather than liberal ; but the "general welfare clause" would not enlarge an enumer- ated power expressly limited or restricted, for such construc- tion would make the general clause repeal a special one in the same statute, and thus violate an established rule of interpreta- tion.^" Powers Conferred. Under a general grant of authority to pass such by-laws as shall be needful to the good order of the city, power has been upheld to "establish all suitable ordinances for administering the government of the city, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits." ^" The general welfare clause has also been held to confer power to prevent the keeping of bawdy- houses ; ^'^ the feeding of cows on distillery slops, and selling their milk within the city; ^^ the public exposure for sale, or sale of merchandise on Sunday ; ^* the sale of liquor on Sun- day ; ^° the keeping of saloons, restaurants and other places of public entertainment open after 10 o'clock at night ;^^ the carrying on of the laundry business in a certain portion of the city;^^ to forbid all disorderly shouting, dancing, etc., in 15 state V. Ferguson, 33 N. H. 424; Clark v. South Bend, 85 Ind. 276, 44 Am. Rep. 13; Collins v. Hatch, 18 Ohio, 523, 51 Am. Dec. 465. 16 State V. Merrill, 37 Me. 329. 17 State V. Williams, 11 S. C. 288. 18 Johnson v. Simonton, 43 Cal. 242. 19 City Council of Charleston v. Benjamin, 2 Strob. (S. G.) 508, 49 Am. Dec. 606. 20 Megowan v. Commonwealth, 2 Mete. (Ky.) 3; State v. Welch, 36 Conn. 215. 21 State V. Freeman, 38 N. H. 426; Morris v. Rome, 10 Ga. 532; Village of Platteville v. Bell, 43 Wis. 488. 2 2 In re Hang Kie, 69 Cal. 149, 10 Pae. 327. § 52) GENERAL AND SPECIAL LAW. 175 Streets and public places ; ^' to regulate the keeping and sell- ing of gunpowder within the corporate limits ; ^* to require elevators inside all stores to be inclosed ;^^ to prohibit the throwing of heavy or dangerous articles from upper stories of buildings into streets and open spaces near them used as public passways ; ^^ to establish fire limits, and to prevent tlie erection therein of wooden buildings ; ^^ to prohibit cruelty to animals; ^^ to prohibit visiting at gambling houses; ^® and to fix the time and places of holding pubHc markets for the sale of food, .and regulating the same.^" Powers Denied. But on the contrary, it has been held that the general wel- fare clause does not authorize a city to aid in constructing a plankroad or tollbridge by a private company beyond the cor- porate limits ; *^ nor to require the proprietor of a theater, circus, or other licensed place of exhibition to pay a police offi- cer for attendance upon the p^ace; ^^ nor to subject to a fine "any person whose known character is that of a prostitute" ; '* nor to levy taxes upon retailers of ardent spirits ; '* nor to re- quire druggists to furnish verified statements quarterly of the kind and quantity of intoxicating liquors sold, and to whom; ^^ 23 Town of Washington Com'rs v. Frank, 46 N. C 436; City of St. Charles v. Meyer, 58 Mo. 86. 24 Frederick v. Augusta, 5 Ga. 561. 2 5 City of New York v. Williams. 15 N. Y. 502. 26 City Council of Charleston v. Elford, 1 McMul. (S. C.) 234. 2T King V. Davenport, 98 111. 305, 38 Am. Rep. 89; Knoxville Corp. V. Bird, 12 Lea (Tenn.) 121, 49 Am. Rep. 326; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830. 28 City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791. 29 Ex parte Lane, 76 Cal. 587, 18 Pac. 677. 30 Kinsley v. Chicago, 124 111. 359, 16 N. E. 260; Ketchum v. Buffalo, 14 N. Y. 356. 31 City Council of Montgomery v. Plank Road Co., 31 Ala. 76. 82 Waters v. Leech. 3 Ark. 110. 3 3 Buell V. State, 45 Ark. 336. 34 Ex parte Burnett, 30 Ala. 461; Town of Ashevllle Com'rs v. Means. 29 N. C. 406. 35 City of Clinton v. Phillips, 58 111. 102. 11 Am. Rep. 52. 176 THE CHARTER. (Ch. 8 nor to exact a license fee from peddlers in the discretion of the mayor ; '® nor to require cotton merchants to keep a rec- ord of their purchases of loose cotton ; ^'' nor to prohibit street processions, with musical instruments, banners, torches, sing- ing, and shouting;^* nor to require a license tax for a tem- porary stand for the sale of lemonade, cake, etc. ; ^® nor tc prescribe a different mode of trial and punishment, in addi- tion to that provided by the state law, for enticing and har- boring seamen ; *° nor to regulate and license the sale of liq- uors, in addition to the state regulation and license ; *^ nor to prohibit the retail of liquors by one duly licensed by the state,*^ nor to forbid it during any divine service held within the corporate limits,** These cases are sufficient to show the general current of judicial opinion in the United States to sustain, under the general welfare clause of the charter, all ordinances tending to promote the general welfare and pre- serve the peace and good order of society, and protect persons, health, and property of citizens, unless they contravene some constitutional provision. CHARTER POWERS CliASSIFIED. 53. The powers, functions, and duties of a mnnicipal corpora- tion are divisible into tv^o great classes: (a) GOVERNMENTAL: That is, those which are conferred and imposed upon a municipal corporation, as a local agency of limited and prescribed jurisdiction, to be ex- ercised by it in administering the poxtrers of the state, and promoting the public w^elfare w^ithin it; 3 6 Town of State Center v. Barenstein, 66 Iowa, 249, 23 N. W 652. 37 Long V. Taxing Dist, 7 Lea (Tenn.) 134, 40 Am. Rep. 55. 8 8 In re Prazee, G3 Mich. 39G, 30 N. W. 72, 6 Am. St. Rep. 310. 3 9 Barling v. West, 29 Wis. 307, 9 Am. Rep. 576. 40 City of Savannah v. Hussey. 21 Ga. SO, OS Am. Dec. 452. 41 Commonwealth v. Dow, 10 Mete. (Mass.) 382; Loeb v. Attica, 82 Ind. 175, 42 Am. Rep. 494. 42 Ex parte Burnett, 30 Ala. 461. 43 Gilham v. Wells, 64 Ga. 192. § 53) CHARTER POWERS CLASSIFIED. 177 (b) MUNICIPAL: Those conferred and imposed for the spe- cial benefit and advantage of the urban commnnity ivhich is incorporated into a distinct corporate person or niunicipaiity. Governmental functions have also been defined and described by judges and authors so as to include all those which are legislative, judicial, discretionary, public, and political, while municipal powers and duties are held to include all those which are ministerial, mandatory, peremptory, private, and corporate.** Under the head of "governmental powers" are accordingly classified (a) powers pertaining to the administra- tion of justice; (b) all police powers; (c) power of eminent domain ; (d) powers for the promotion of public education ; (e) powers to maintain a fire department and extinguish fires ; (f) all other charter powers to be exercised by the municipal- ity, as an agency of the state, for the benefit of the public, in or for the exercise of which the corporation receives no consid- eration.*^ All other charter powers and duties, including not only those which are mandatory, such as the proper care of streets and alleys, but also those powers which are discretion- ary, such as the erection and maintenance of waterworks, gas- works, and electric plants, from which profit may be derived by the municipality, are municipal.*' Legislative Control of Governmental Powers — None over Mu- nicipal. In the exercise of its governmental powers and functions the municipality represents the state; and the officers execut- ing these powers are rather officers of the state than of the municipality, and, as such, they are peculiarly subject to the 4 4 Tied. Mun. Corp. §§ 110-112. 4 8 Stedman v. San Francisco, tJ3 Cal. 193; Jones v, Richmond, IS Grat (Va.) 517, 98 Am. Dec. G95. 46 MERSEY DOCK CASES, 11 H. L. Cas. G87; City of Pittsburgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65: Murphy v. Lowell, 124 Mass. 564; Grimes v. Keene, 52 N. H. 335; Aldrich v. Tripp, 11 It. 1. 141. ?3 Am. Rep. 434. INO.COBP. — 12 178 THE CHARTER. (Cll. S control of the state, while those officers who perform strictly municipal functions are municipal officers to be chosen by the corporation, and are not so subject to legislative control.*'' It has accor(linj;ly been held that the legislature may create and appoint boards of fire and police commissioners, and vest them with power of selecting and appointing the police force ;*^ and so, also, of park commissioners ; ** though it may have no power to appoint mayors or councilmen or street commis- sioners, whose duties are strictly municipal. °" The judicial views of these distinct functions of a municipality are not uniform, but in some instances quite conflicting and discord- ant, as illustrated by the able opinions of Judges Campbell and Cooley in two leading cases in Michigan ^^ emphasizing these distinctions, and by the masterly opinion of Chief Justice Denio in a celebrated New York case °- denying the existence of these distinctions, and asserting that all municipal powers and functions are public. The importance of the question 4 7 United States v. Memphis, 97 U. S. 284, 24 L. Ed. 937; State V. Hine, 59 Conn. .50, 21 Atl. 1024, 10 L. R. A. 8.3; State v. O'Connor, 54 N. J. Law, 36, 22 Atl. 1091; People v. McKinney, .52 N. Y. 374; In re Richmond Mayoralty, 19 Grat. (Va.) 673; STATE v. DENNY, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; State v. George, 23 Fla. .585, 3 South. 81; Stanfleld v. State, 83 Tex. 317, 18 S. W. 577; State V. Nine Justices, 90 Tenn. 722, 18 S. W. 393; Green v. Fresno, 95 Cal. 329, 30 Pac. .544. 48 COMMONWEALTH v. PK\ISTED, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; People v. McDonald, 69 N. Y. 362; Burch v. Hardwicke, 30 Grat. (Va.) 24, 32 Am. Rep. 640; State V. Hunter, 38 Kan. 578, 17 Pac. 177. Contra. City of Evansville v. State, 118 Ind. 42G, 21 N. E. 267, 4 L. R. A. 93; STATE v. DENNY, 118 Ind. 382, 449, 21 N. E. 252, 274. 4 L. R. A. 79. 85. 49 PEOPLE V HURLBUT, 24 Mich. 44, 9 Am. Rep. 103. 50 Richmond Mayoralty Case, 19 Grat. (Va.) 673; State v. Bogard. 128 Ind. 480. 27 N. E. 1113; Hathaway v. New Baltimorp. 48 Mich. 251, 12 N. W. 186; People v. Clute, 50 N. Y. 451, 10 Am. Rep. ."OS. 51 PEOPLE V. HUTtLBUT, 24 Mich. 44, 9 Am. Rep. 103; PEOPLE V. DETROIT. 28 Mich. 228, 15 Am. Rep. 202. 52 DARLINGTON v. MAYOR, 31 N. Y. 164, 88 Am. Dec. 248. § 54) WHAT CONSTITUTES MUNICIPAL MEMBEllSHIP. 179 arises out of the fact that upon its solution depend the power of legislative control, and also civil liabilities of corporations, under which head it will receive consideration hereinafter."^-' Suffice it here to say that the general trend of judicial opinion is unmistakably toward the double aspect of the municipality, and the recognition of the quasi private nature of the pow- ers, offices, and property pertaining to it for the special benefit and peculiar advantage of its citizens and of the locality. WHAT CONSTITUTES MUNICIPAL MEMBERSHIP. 54. . The persons residing within the corporate limits are mem- bers of the municipal corporation. This is wholly unlike the rule and practice in private cor- porations. Membership in a private corporation is always voluntary, and in a stock corporation is evidenced by the hold- ing of a certificate of a share or shares of the capital stock. ^* In a municipal corporation it is otherwise. Every person re- siding within the municipal boundaries, whether he will or not, is a member of the corporation, subject to its lawful authority, and entitled to the privileges and immunities of membership, as well as liable to the burdens and liabilities thereof.^^ And persons who come within the corporate limits, though they are only passing through the city, are, so long as they remain within its boundaries, subject to all its police regulations, and bound to take notice of and obey the same.°' 53 1 Dill. Mun. Corp. §§ 26, 27. 54 State V. Ferris. 42 Conn. 560 ; Upton v. Hansbrough. 3 Biss. 417, Fed. Cas. No. 16,801. 55 People V. Canaday, 73 N. C. 198, 21 Am. Rep. 465; Oakes v. Hill, 10 Pick. (Mass.) 333. 56 Helaud v. I->o\voll, 3 Allen (Mass.) 407, 81 Am. De«. 670; City of Knoxville v. King, 7 I>ea (Tenu.) 441; Bott v. Pratt, 33 Minn. 323, 23 N. W. 2,37, 53 Am. Rep. 47; Strauss v. Pontiac, 40 111. 301; Village of Buffalo v. Webster, 10 Wend. (N. Y.) 99; Village of St. .Jolinsbury v. Thompson, .59 Vt. 300, 9 Atl. 571, 59 Am. Rep. 731; Des Moines Gas Co. v. Des Moines, 44 Iowa, 505, 24 Am. Rep. 756- 180 THE CHARTER. (Ch. S By the common law the members of the municipal corpora- tion were those only to whom the King chose to issue his let- ters patent (and their successors), usually a portion of the citi- zens. Nonresidents, however, were often members. The in- tegral parts of the corporation were the mayor, the aldermen, and the commonalty; and the presence of all these integral parts was essential to the validity of corporate action.'*'' The spirit of modern democracy has overcome all these exclusive practices and aristocratic ideas, in England as well as in America, and the inhabitants of the corporations are now the source of power, and the officers are their servants. TERRITORIAL LIMIT OF MUNICIPAL AUTHORITY. 55. The municipal authority is coextensive with the municipal boundaries, and generally is limited by them. Since the municipal corporation is an agency of the state for local government, the by-laws and ordinances of the cor- poration must, of course, prevail over the entire territory which is incorporated, and all persons within those boundaries to whom they are applicable. They are local laws, therefore, enacted or authorized by the state, and all persons within the municipal jurisdiction are bound to respect and obey them.^^ Bxceptions. The exceptions to the rule that the corporate limits are the boundary of corporate authority are few and special. They will be found generally in legislative acts giving jurisdiction to city boards of health over some district beyond the niunici- BT 1 Dill. Mun. Corp. § 35. 68 Dodge V. Gridley, 10 Ohio, 173; City of Knoxville v. King. 7 Lea (Tenn.) 441; Jolinson v. Simonton, 43 Cal. 242; Swift v. Topelia, 43 Kan. G71, 23 Pac. 1075, 8 L. R. A. 772; Plymouth Com'rs V. Petti John, 15 N. C. 591; City of Buffalo v. Schleifer, 2 Misc. Rep. 210, 21 N. Y. Supp. 913; Citizens' Gas & Mining Co. v. Elwood, 114 Ind. 332, 16 N. E. G24; Perdue v. Ellis, 18 Ga. 586; State v. Merrill. 37 Me. 329. § 56) A.CCEPTANCE OF CHARTER UNNECESSARY. 181 pal boundaries, to the end that they may be enabled thus to protect the public health of the municipality. Some acts give jurisdiction of territory outside its municipal boundaries from which it obtains its water supply ;^^ and likewise to prevent nuisances in adjacent territory lying beyond the city limits.^" This last power was maintained by the Supreme Court of Il- linois to the extent of authorizing the city of Chicago to en- force an ordinance forbidding any person or corporation to carry on the business of slaughtering, rendering, etc., within a mile of the city limits, and thereby to abate, as a nuisance, the factory of the Chicago Packing Company, which was outside the city Hmits, and within the incorporated town of Lake, from which it held a license to carry on its business.^ ^ A city has also been held to possess implied power to make a contract with an adjoining landowner to give an outlet to its sewage beyond the city limits, and to control the necessary sewer system beyond its limits.*^ ACCEPTANCE OF CHARTER BY CITIZENS UNNECESSARY. 56. Acceptance of a municipal charter by the citizens of the mnnicipality is not necessary to its validity, unless required by constitutional provisions. Recurring to the distinction between private and public cor- porations, it is essential to bear in mind that the charter of a municipal corporation is not a contract between the state and the corporation or incorporators;®^ but it is an act of legis- lation by the state in the exercise of its sovereign power, and 69 Dunham v. New Britain, 55 Conn. 378, 11 Atl. 354. 60 Gould V. Rocbestei', 105 N. Y. 4G, 12 N. E. 275. See, also. Metropolitan Board of Health v. Heister, 37 N. Y. 661. 61 CHICAGO PACKING & PROVISION CO. v. CHICAGO, 88 111. 221, 80 Am. Rep. 545. 6 2 City of Cold water v. Tucker, S6 Mich. 474, 24 Am. Rep. 601; Cummins v. Seymour, 79 Ind. 491, 41 Am. Rep. 618. 63 EAST HARTFORD v. BRIDGE CO., 10 How. (U. S.) 511, 13 L. Ed. 518; City of Baltimore v. State, 16 Md. S76, 74 Am. Dec. 672. 182 THE CHARTER. (Ch. 8 needs not the consent of any of its citizens to give it validity, however ineffectual the charter mic^ht be if the citizens should refuse to recognize it or to organize a corporation thereun- der.^* Such refusal, if unanimously persisted in by the inhab- itants, might result in making the statute a dead letter; but the act of even a small minority in organizing the corporation and setting the municipal machinery in motion would revive the statute, inspire the dormant charter, and erect the municipality into a vahd, existing corporation.®^ It would then become, as was intended, an active agent and instrumentality of the gov- ernment, with the right to compel respect and obedience from the dissenting majority of members, however preponderant they might be in numbers or influence.®* Grant Conditional upon Acceptance. Yet it is competent for the legislature to make the grant of charter powers conditional upon their acceptance by a major- ity of the inhabitants. A clause requiring that, before the charter shall go into operation, the people of the proposed municipality shall, by public election or otherwise, give assent to its provisions by formal acceptance of the same, is not ground for impeaching the act as an unwarranted delegation of legislative power.®^ Such a clause has been repeatedly de- 64 Foote V. Cincinnati, 11 Ohio, 408, 38 Am. Dec. 737; People v. Oakland, 92 Cal. 611, 28 Pac. 807; Buford v. State, 72 Tex. 182, 10 S. W. 401; People v. Stout, 23 Barb. (N. Y.) 349; State v. Babcoek, 25 Neb. 709, 41 N. W. 654; MILLS v. WILLIAMS, 33 N. C. 558; STATE V. CURRAN, 12 Ark. 321; State v. Haines, 35 Or. 379, 58 Pac. 39. 65 CITY OF PATERSON v. SOCIETY, 24 N. J. Law, 385; Musca tine Turn Verein v. Funck, 18 Iowa, 409 : Inhabitants of Gorham v. Springfield, 21 Me. 58 ; PEOPLE v. BUTTE, 4 Mont. 174, 1 Pac. 414, 47 Am. Rep. 346. See, contra. Lea v. Hernandez, 10 Tex. 137. 66 State V. Canterbury, 28 N. H. 195; Warren v. Charlrstown, 2 Gray (Mass.) 84; People v. President, 9 Wend. (N. Y.) S.Jl. 67 Bull V. Read, 13 Grat. (Va.) 78; State v. Noyes, 30 N. H. 279; People V. Salomon, 51 111. 37; City of Brunswick v. Finney, 54 Ga. § 56) ACCEPTANCE OF CHARTER CNNECESSART. 183 clared by our courts to be a valid legislative condition preced- ent to the organization of a municipal corporation, with the result that the charter is impotent and the municipality non- existent until the people shall call it into being.®^ ^loreover, under constitutional authorization to delegate legislative power for such purpose, special charters may be granted to municipal corporations by courts, commissioners, or boards thereunto authorized by act of the general assembly.®* Delegated Poivers. A charter thus obtained from a sublegislature in all material particulars resembles the special charter of legislative enact- ment in form and effect. The court or board may be thus vested with plenary legislative discretion to specify and enu- merate the powers to be conferred by the charter, and fix the boundaries of the municipality. The charter in such case will usually take the form of a judicial decree or board ordinance, and will be in all particulars subject to the general rules and doctrines of the law as applied to special legislative charters.'^'* Particular Cases of Popular Approval and Acceptance. It is likewise adjudged that certain provisions contained in a municipal charter, such as the power to incur a bonded in- debtedness, may be made dependent upon the consent of the municipality.''^ Certain it is that they are entirely consistent 317; People v. McFadden. 81 Cal. 489, 22 Pac. 851, 15 Am. St. r-^p. (J6; Commonwealth v. Painter, 10 Pa. 214; State ex rel. Douglass v. Scott, 17 Mo. 521. 6 8 Lafayette, M. & B. R. Co. v. Geiger, 34 Ind. 185; Foote v. Cincinnati, 11 Ohio, 408, 38 Am. Dec. 737; Smith v. McCarthy, 56 Pa. 359; State ex rel. Dome v. Wilcox, 45 Mo. 458; People v. Eey- nolds, 10 111. 1; People v. Gunn, 85 Cal. 238, 24 Pac. 718. 69 Ford V. North Des Moines, 80 Iowa, 62G, 45 N. W. 1031; People V. Fleming, 10 Colo. 553. 10 Pac. 298; State v. Leatherman, 38 Ark. 81; State v. Simons, 32 Minn. 540, 21 N. W. 7.'>(). 70 Ashley v. Calliope, 71 Iowa, 4UU, 32 N. W. 458; State v. Goo- win. 69 Tex. 55, 5 S. W. 678. 71 State V. Waxahachie, 81 Tex. G28, 17 S. W. 348; Bank of Rome 184 THE CHARTER. (Ch. S with the essential character of a municipal corporation, and with the genius of our American institutions, conceding to those most interested the right and power of self-govern- ment." In like manner, it is competent for the Legislature to make the continuance of the municipal organization dependent upon the continued public approval of the citizens, and to authorize them by public election to terminate and dissolve the corporation at will.'^^ Such a clause might be included either in a special charter or in a general statute of the state. Inherent Poiver in Legislature to Make Conditions. All legislative power not exclusively withheld by Consti- tution is inherent in the general assembly, as the representa- tive of the people ; and, while this power may not be delegated, it is competent for the legislature to prescribe the condition upon which its special enactment may become law, just as under general statutes of incorporation it prescribes the mode by which municipalities may be brought into life by the local action of the inhabitants.''* JUDICIAIi NOTICE OP SPECIAL CHARTER. 57. Tlie courts take judicial notice of the charter of a munici- pal corporation created by special act. This seems to be the general consensus of judicial opinion in the United States,''^ though the contrary doctrine has pre- V. Rome, 18 N. Y. 38; City of St. Louis v. Alexander, 23 Mo. 483; People V. Burr, 13 Cal. 343; Weaver v. Cherry, 8 Ohio St. 5G4. 72 Kahn v. Sutro, 114 Cal. 31C, 46 Pac. 87, 33 L. R. A. 620; City of Paterson v. Society, 24 N. J. Law, 385; Couimouwealth v. Painter. 10 Pa. 214. 73 Corning v. Greene, 23 Barb. (N. Y.) 33. 74 State V. Wilcox, 42 Conn.- 364, 19 Am. Rep. 536; Common- wealth V. Dean, 110 Mass. .357; Sandford v. Common Pleas, 36 N. J. Law, 72, 13 Am. Rep. 422; New York Fire Department v. Kip, 10 Wend. (N. Y.) 2G7; Hobart v. Supervisors, 17 Cal. 23. 7 5 City of Wetumpka v. Wharf Co., 63 Ala. 611; City of Savannau § 57) JUDICIAL NOTICE OF SPECIAL CHARTER. 185 vailed in a few of them, wherein it has been ruled that the charter of a municipality is a private act, and, like other pri- vate acts, must be pleaded and proven. This latter ruling seems to be consistent with elementary definitions and dis- tinctions. Blackstone says: ''^ "A general or public act is an universal rule that regards the whole community, and of this all courts of law are bound to take notice judicially and ex officio, without the statute being particularly pleaded. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons or private con- cerns." To which Bouvier adds, "Acts relating to any par- ticular place," and says that "private acts are those of which the judges will not take notice without pleading," ''"' and, of course, proof also. Special charters of municipal corporations have been customarily printed in the United States in that section of the pamphlet acts of assemblies classified as private acts, and not among the public laws ; and, in speaking of cor- porations, courts and authors unanimously recognize the dis- tinction of special and general statutes, thereby recognizing a classification not stated by the law lexicographers, ■ nor by Blackstone, who uses "public" and "general" as convertible terms.''® But the great weight of judicial opinion, and the general practice thereunder, in the United States, warrants the statement of the text that municipal charters will receive ju- dicial notice, though they are special and not general statutes.'^ V. Dickey, 33 Mo. App. 522; City of Solomon v. Hughes. 24 Kan. 211; State V. Tosney, 26 Minn. 202, 3 N. W. 345; Dwyer v. Brenham, 65 Tex. 526; Potwin v. Johnson, 108 111. 70; BOW v. ALLENSTOWN, 34 N. H. 351, 69 Am. Dec. 489; Vreeland v. Bergen, 34 N. J. Law, 438. 76 Comm. vol. 1, 86. 7 7 Law Diet, tit "Act," "Legislation." 7 8 Comm. vol. 1, supra. 79 New Jersey v. Yard, 95 U. S. 104, 24 L. Ed. .3.52; Toledo, P. & W. Ry. Co. V. Chenoa. 43 111. 209; Vreeland v. Bergen, .34 N. J. Law, 439; Virginia City v. Mining Co., 2 Nev. 80; Swain v. Comstock, 18 Wis. 463 ; Oroville & V. R. Co. v. Plumas, 37 Cal. 3.54 ; State v. Mayor. 11 Humph. (Tenn.) 217. 186 THE CHARTER. (Ch. & This fact entitles them to be classified as public statutes, even though they do relate to particular places only ; and this is consistent with the purposes and functions of all public cor- porations, including municipalities. They may affect only par- ticular localities, and yet be public in the accepted sense of that term, for "public" need not mean "universal." *" This rule applies, therefore, not only when a clause in the special stat- ute declares it to be a public statute, but without any provi- sion to that effect, because of the public nature and purposes of a municipal corporation. It follows, of course, that, the charter being a public statute, all amendments and supple- ments thereto are likewise public.*^ CERTIFICATE OF ORGANIZATION UNDER GENERAL LAAV TO BE PLEADED. 58. But this rule does not apply to the charter of a city in- corporated under a general statute, nor to the ordi- nances and by-laxps of any municipality. Such statutes, ordinances, and by-laws are not only special, but private, acts, and must be specially pleaded and proven, unless otherwise provided by statute.®^ MUNICIPALITIES UNDER GENERAL LEGISLATION. 59. The charter of a municipal corporation may be obtained and formulated under a general law declaring the poAwers, privileges, and immunities of the corporation, and authorizing its organization upon popular initia- 8 "Public" is here used as the antithesis of "pi-ivate." 81 Newarli City Banli v. Assessors, 30 N. J. Law, 22; Society for Propagation of Gospel v. Pawlet, 4 Pet. (U. S.) 480, 7 L. Eil. !ti27: People V. P'arnham, 35 111. 562; Arapahoe Village v. Albee, 24 Neb. 242, 38 N. W. 738, 8 Am. St. Rep. 202. 82 Harker v. Mayor, 17 Wend. (N. Y.) 199; Cox v. St. Louis, 11 Mo. 431; Trustees of Elizabethtown v. Lefler, 23 111. 90; Goodrich V. Brown, 30 Iowa, 291; City of New Orleans v, Boudro, 14 La. Ann. 303. § 59) MUNICIPALITIES UNDER GENERAL LEGISLATION. 187 tiv8 by officers of the state exercising ministerial ftmctions conferred for that purpose in the general statute. The legislation of the various states upon this subject shows as great diversity of legislative thought and action as upon other subjects of general legislation, and quite as much ingenu- ity under particular inspiration as that for the benefit of pri- vate incorporations from the speculative influence of society.^^ Ordinarily the laws make a classification of municipal corpo- rations according to population, and, while the usual powers of a municipality are conferred upon all alike, certain specified powers are provided for the various classes of cities and towns, suggested by and appropriate to the classification.^* Under these statutes a required number of citizens of the pro- posed municipality initiate the movement for incorporation by some appropriate document, resulting in an enumeration of the voters within the proposed precincts, followed by a special election held by the election officer of the county to determine whether a majority of the people favor incorporation. If the vote is in the affirmative by the required majority, then an election is held for the officers necessary to organize the cor- poration and set it in motion.*^ ^ In some states this choice is made at the first election ; its efficacy being determined, of course, upon the vote in favor of incorporation. Instances are said to be rare in which the incorporation is defeated, if at the same election there may be candidates for the offices to be created thereby. The charter of the corporation thus created is sometimes authorized to be formulated by a court or board or officer designated in the act, whose function is ministerial onlv, and the resulting duty is an intelligent conformation of the general law to the particular corporation by specifying its name and municipal boundaries, and transcribing the grant of 8 3 1 Beach, Pub. Corp. §§ 16, 39; 1 Tboiup. Priv. Corp. § 132. 84 1 Dill. Mun. Corp. § 41, note. 8 5 State V. Tipton, 109 Ind. 73, 9 N. E. 704. 188 THE CHARTER. (Ch. 8 powers contained in the general incorporation statute. In states wherein a delegation of legislative power for municipal purposes is authorized by the Constitution, little difficulty arises in determining the validity of the charter and of the powers therein granted, since upon this sublegislature is con- ferred, ex necessitate rei, the legislative discretion.*' But where the legislative grant of power to organize under general law is made without constitutional authority to delegate legis- lative power, the acts of these officers and boards, and even of the courts, are necessarily ministerial only ; *' and, if they in any such case are empowered to exercise legislative powers in the organization, such legislative acts are unconstitutional and void; ^^ and, if the portion of the charter of this charac- ter is large, or is inseparable from the rest of the work, the entire charter will be void, and the corporation a nullity.®* MUNICIPAL POWERS: EXPRESS — IMPLIED — INHERENT. €0. The municipality possesses no other po^trers than^ (a) Those expressly enumerated in the charter; (b) Such as are necessary for their appropriate use and ex- ecution; (c) Such as are inherent in every municipal corporation. The inherent powers of a private corporation are well recog- nized and established by many judicial decisions, from an ex- amination of which it will appear that the courts have not been illiberal in their implications. But the general rule with regard to implied powers is one of strict rather than liberal construction, with reference to all corporations, both public 86 Cooley, Const. Lim. (6th Eel.) 78. 87 Granby Mining & Smelting Co. v. Richarcls. 05 Mo. 106, 8 S. W. 246; 1 Mor. Priv. Corp. § 15; 1 Tliomp. Priv. Corp. § 110; City of Morristown v. Shelton, 1 Head (Tenn.) 24. 88 Ex parte Chadwell, 3 Baxt. (Tenn.) 98; Greeneville & P. R. Nar- row Gauge R. Co. v. Johnson, 8 Baxt. (Tenn.) 332. 89 Cooley, Const. Lim. (Gth Ed.) 210-214. § 61) NO PARTICULAR FORM OF CHARTER REQUIRED. 189 and private ; ®° and therefore it is wise and necessary that the charter should contain an enumeration of the powers and privileges intended to be granted the municipal corporation, and the duties to be imposed upon it. In the special charters these powers are varied in character and extent, and also in form."^ In the charters obtained under general statutes, the enumeration is generally abundant, and often tedious and re- dundant. This, however, within bounds, is preferable to the omission of powers intended to be granted, and leaving them to the doubtful source of judicial implication. NO PARTICULAR FORM OF CHARTER REQUIRED. 61. A municipal charter requires for its validity no particular form, of \Fords, but is valid and effective if the lan- guage employed manifests legislative intention there- by to erect a municipality. As we have heretofore seen, the words usually employed to establish a corporation are "found," "erect," "establish," "cre- ate," or "incorporate";^^ but none of thern is essential. If the words employed in the charter grant the powers essential to a corporation, or otherwise evince the intention of the legis- lature to found a municipal corporation by that particular act of legislation, then the charter is sufficient for that purpose, and the municipality is accordingly created. ^^ The absence of express provisions respecting the incidents which are inherent in a corporation, such as the power to sue and be sued, to have a seal, or to enact by-laws, does not render the charter void ; ^* and in more than one case it has been decided that the omission of the name of the corporation is not a fatal de- fect, provided the same may be inferred from the terms of the eo Clark, Priv. Corp. § 53; 1 Dill. Mun, Corp. § 91. 61 1 Beach. Pub. Corp. §§ 07-69. 9 2 1 Kyd. Corp. 62; 2 Kent, Comm. 27. 83 1 Dill. Mun. Corp. §§ 42, 43. 9* 1 Kyd, Corp. 03; CONSERVATORS v. ASH, 10 Barn. & C. 349. 190 THE CHARTEE. (Ch. 8 charter." Indeed, it may be regarded as settled law that a corporation may be created by implication, as well as by the use of the customary words in the charter.^® But the impli- cation must be natural and necessary, and if, besides the ab- sence of the usual words of incorporation, and the omission of the essential properties thereof, there is no language from which either may be implied by the use of the recognized rules of interpretation, then the charter is essentially defective, and the municipality is not created thereby.®^ LEGISLATIVE POVV^ER TO REPEAL CHARTER. 62. A mnnicipal charter, ivhether granted by special laiv or obtained under general laws, may be repealed by leg- islative act, either general or special, unless forbidden by the Constitution. It is not the purpose here to consider the effect of such re- peal, but only the power and method thereof. We have seen that a municipal charter is not a contract, but merely a sov- ereign act of legislation, and therefore it is not preserved or protected by the "contract clause of the federal Constitution.®^ In the exercise of its inherent sovereign power, the legislature may not only enact, but repeal, laws, in its discretion. A special charter is only a special law. and is therefore subject to repeal in such manner as the legislature may choose to pro- ceed."® A municipal corporation organized under general in- corporation laws becomes thereby only an agency of the gov- ernment for more efficient local administration, and this agency »5 School Co-.n'rs v. Dean, 2 Stew. & P. (Ala.) 190; Trustees of Ministerial and School Fund v. Parks, 10 Me. 441. 86 1 Dill. Mun. Corp. § 42. »T Stebbins v. Jennings, 10 Pick. (Mass.) 172; Wells v. Burbank, 17 N. H. 393; Medical Inst. Geneva College v. Patterson, 5 Denio (N. Y.) G18; Myers v. Irwin, 2 Serg. & R. (Pa.) 368. 98 DARTMOUTH COLLEGE v. WOODWARD, 4 Wheat (U. S.) 518, 4 L. Ed. 629. 99 SLOAN V. STATE, 8 Blackf. (Ind.) 36L ^ 62) LEGISLATIVE POWER TO REPEAL CUAKTER. t'Ji may be revoked at any time by the state, as principal/"" The property rights of the citizens, or of such creditors as there may be upon such repeal, will be considered hereafter. At present, we have to do only with the power of revocation. This power the state undoubtedly possesses, and it may terminate the agency at its pleasure by repeal of the charter which cre- ated the agency, whether this charter is under special or gen- eral law, for both are subject to repeal. Repeal Legal learning upon the subject of repeal of statutes is vast, varied, and confusing. It is easy to see how a special statute may be repealed by another special statute, and also how a gen- ' eral statute may be repealed by another general statute. Little difficulty arises from such appropriate and express legislation, but the subject of repeal of a general statute by a special one, and a special statute by a general one, has been a prolific source of legal disputation and judicial consideration.^"^ It has fur- nished a fine field ^or the excursions of legal authors, and the amount of learning upon this subject of repeal of statutes in these ni:.tters is so great as to be embarrassing. A detailed exaniination of the rules and cases upon this subject cannot be made within the prescribed limits of this work. It must suf- fice to say that the fundamental doctrines of the law upon this subject are generally applicable to the repeal of charters of municipal corporations. These numerous cases and rules seem, for the most part, to be special instances under the particular application of the general doctrine of repeal by implication. If the subsequent statute plainly manifests the unmistakable intention of the legislature that the provisions of the former 100 GIRARD V. PHILADELPHIA, 7 Wall. (U. S.) 1, 10 L. Ed. 53; Cobb v. Kingman. 15 Mass. 197; BERLIN v. GORHAM, 34 N. H. 266; Town of Granby v. Thurston, 23 Conn. 410; People v. Tweed, 63 N. Y. 202; Crook v. People, 106 111. 237; Scoville v. Cleve- land, 1 Ohio St. 126; Smith v, Adrian, 1 Mich. 495; Lynch v. Laf- land, 4 Cold. (Tenn.) 9G; Boyd v. Chambers. 78 Ky. 140. 1011 Dill. Mun. Corp. §§ 85-88; 1 Beach, Pub. Corp. c. 4. 192 THE CHARTER. (Ch. 8 Statute shall no longer be in operation, then the repeal is ef- fected ; otherwise the forn^er statute generally remains in operation, even though the two statutes may not be harmoni- ous.^"^ A special charter may thus be repealed not only by a special act, but also by a general act of legislation declaring that all municipal charters, or all of a certain class, including the one in question, are repealed, or enacting that the corpora- tions are or shall be dissolved. ^°^ So a charter under a gen- eral incorporation act may be repealed by special public law enacted for that particular purpose, as well as by a general statute, or by constitutional provision necessarily repugnant to, and irreconcilable with, the previous law.^*** Method of Repeal. How the charter of a municipal corporation organized under general law may be practically repealed is an interesting mat- ter of inquiry, and has been the subject of much judicial con- sideration. It has been urged that such a charter, being the result of the exercise of ministerial power, is not a proper subject for legislative repeal, and that the repeal of the general law under which it was organized will not afifect the status of the municipality as a corporate body endowed with all neces- sary powers and functions.^"' But this contention is based 102 Town of Montezuma v. Minor, 70 Ga. 191; State v. Clarke, 54 Mo. 17, 14 Am. Kep. 471; Village of St. Jobusbury v. Thompson, 59 Vt. 300, 9 Atl. 571, 59 Am. Rep. 731; Gorum v. Mills, 34 N. J. Law, 177. 103 MERIWETHER v. GARRETT, 102 U. S. 472, 26 L. Ed. 197; Crook V. People, lOG 111. 237; Wallace v. Trustees, 84 N. C. 1G4; Daniel v. Mayor, 11 Humph. (Tenn.) 582; State v. Mayor, 24 Ala. 701; PEOPLE v. MORRIS, 13 Wend. (N. Y.) 325; Worthley v. Steen, 43 N. J. Law, 542; SLOAN v. STATE, 8 Blackf. (Ind.) 361. 104 City of GrifRu v. Inman. 57 Ga. 370; Bond v. Hiestand, 20 La. Ann. 189; Hammond v. Haines, 25 Md. 541, 90 Am. Dec. 77; State V. Wilspn, 12 Lea (Tenn.) 246; State ex rel. Kansas City, St. J. & C. B. R. Co. V. Severance, 55 Mo. 378; Union Pac. Ry. Co, v. Cheyenne, 113 U. S. 510, 5 Sup. Ct. 601, 28 L. Ed. 1098. 105 This assumes that the ministerial structure may outlive its § 62) LEGISLATIVE POWER TO REPEAL CHARTER. 193 upon a misconception of the nature of a municipal corporation, and the sovereign legislative power of the state. Of course, where the Constitution forbids, the legislature may not pass any special statute affecting a municipal corporation, and there- fore it may not repeal any charter by a special act. But in the absence of any such constitutional inhibiiion, the legislature, exercising the plenary legislative power of the state, may re- peal any municipal charter by any recognized mode of legis- lation.^"" By a single act it may repeal a single municipal charter, or the municipal charters of a certain class of cor- porations, or all charters of all the municipal corporations within the state. Moreover, the legislature may not only re- peal the general incorporation act vmder which municipal cor- porations have been organized, but, unless forbidden by the Constitution, it may by appropriate legislation, in effect, re- peal the charter of any municipal corporation organized and existing under the general law. This is only to repeat that the legislature, representing the power of the state, may, by spe- cial legislation, when not forbidden by the Constitution, re- call the governmental powers and authority with which it has endowed a municipal corporation as an agency of the state, in any manner whatsoever.^"'' As the form of the grant of power — that is, the giving of the charter — was not material, so the form of revocation of such power is not material. legislative foundation — may stand after the substructure is removed. Such a postulate would equally well preserve a municipality after repeal of its special charter, which is impossible. SLOAN v. STATE, B Blackf. (Ind.) 361. 106 Bloomer v. Stolley, 5 McLean. 1.58, Fed. Cas. No. 1,559; United Btates V. Port of Mobile (C. C.) 12 Fed. 7(58, note; Cooley, Const. Lim. (6th Ed.) c. 5, p. 147. 107 LUEHRMAN v. TAXING DIST., 2 Lea (Tenn.) 425; PEOPLE V. MORRIS, 13 Wend. (N. Y.) 325; CITY OF MEMPHIS v. WA- TER CO., 5 Heisk. (Tenn.) 495; Buford v. State. 72 Tex. 182, 10 S. W. 401; State ex rel. Kansas City, St. J. & C. B. R. Co. v. Severance, 55 Mo. 378. Ing.Corp. — 13 194 LEGISLATIVE CONTROL. (Ch. 9 CHAPTER IX. LEGISLATIVE CONTROL. 03. Governmental Functions, Public Affairs and Property. 64. Municipal Officers Charged With Performance of Governmental Functions. 65. Public Funds and Revenues. 66. Franchises. 67. Contracts and Obligations. 68. Obligations Imposed by Legislature. 69. Property. 70. Public Thoroughfares. GOVERNMENTAL FUNCTIONS. PUBLIC AFFAIRS AND PROPERTY. 63. In addition to creation, alteration, and dissolution of a municipal corporation, tlie legislature, by virtue of it:>; sovereign po^vers, may exercise supervisory control over its governmental functions, and public affairs and property. The legislative control of municipal corporations during their existence is a necessary corollary of the legislative power to create and to dissolve such corporations. They are, as we have seen, public agencies for the administration of govern- ment.^ Primarily and chiefly, they are organized to promote the welfare of the citizens of the municipality.* They are rarely established for rural communities, but are demanded by the necessities of urban life.^ A municipal corporation is 1 2 Bouv. Law Diet. 21 ; 2 Kent, Comm. 275 ; PEOPLE v. MOR- RIS, 13 Wend. (N. Y.) 32.j, .334. 2 1 Dill. Miin. Corp. §§ 12, 20; PEOPLE v. MORRIS, supra; CIT\ OF PHII^\DELPHIA v. FOX, 64 Pa. 180; East Tennessee Uni- versity V. Knoxville, 6 Baxt. (Tenn.) 166. 3 State ex rel. Attorney General v. Schweiekardl, lo;j Mo. 490, § 63) GOVERNMENTAL AND PUBLIC MATTERS. 195 peculiarly a government of the people, by the people, and for the people residing within the corporate limits.* And yet one of the chief functions of such a corporation is the due en- forcement of certain criminal laws of the state, and the local exercise of the police power thereof.^ Not only the citizens of the municipality, but all who come within its boundaries, are ly S. W. 47; PEOPLE v. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. "The fundamental idea of a municipal corporation, proper, both in England and in this country, is to invest compact or dense popu- lations with the power of local self-govermueut. Indeed, the neces- sity for such corporations springs from the existence of centers or agglomerations of population, having, by reason of density and num- ijers, local or peculiar interests and wants, not common to adjoin- ing sparsely settled or agricultural regions. It is necessary to draw the line which divides the limits of the place and people to be in- corporated. This is with us a legislative function." 1 Dill. Mun Corp. § 183. *Cooley, Const. Lim. (6th Ed.) 139; PEOPLE v. HUKLBLT, 2-1 .Mich. 44, 9 Am. Rep. 103; PEOPLE v. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. 5 State V. Pender, 66 N. C. 313; Egleston v. City Council, 1 Mill. Const. (S. C.) 45; City Council of Charleston v. King, 4 McCord (S. C.) 487; City Council v. Pepper, 1 Rich. Law (S. C.) 364; Rector V. State, 6 Ark. 187; Lewis v. State, 21 Ark. 209; Durr v. Howard. (i Ark. 461; Ex parte Slattery, 3 Ark. 484; Smith, Mun. Corp. § 1320; Elliott, Mun. Corp. § 89; Commonwealth v. Roark, 8 Cush. (Mass.) 210; Commonwealth v. Pindar, 11 Mete (Mass.) .539; Brown's Case, 1.52 Mass. 1, 24 N. E. 857; Myers v. People, 26 111. 173; Borough of St. Peter v. Bauer, 19 Minn. 327 (Gil. 282); People v. Wong Wang, 92 Cal. 277, 28 Pac. 270; People v. Ah Ung (Cal.) 28 Pac. 272; State v. Cram, 84 Me. 271, 26 Atl. 853; People v. Goose- man, 80 Mich. 611, 45 N. W. 309; People v. Brown, 80 Mich. 615, 45 N, W. 371; People v. Hulett, 61 Hun, 620, 15 N. Y. Supp. 630. See, also, Cranston v. Augusta, 61 Ga. 572; Rippe v. Becker, 56 Minn. 100, 57 N. W. 331, 22 L. R. A. 857; MUNN v. ILLINOIS, 94 U. S. 113, 24 L. Ed. 77; Raymond v. Fish, 51 Conn. SO. 50 Am. Rep. 3; Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520; PEOPLE v. BENNETT, 83 Mich. 457, 47 N. W. 250; Ogden City v. McLaughlin, 5 Utah, 387, 16 Pac. 721; State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L. R. A. 279; Welch v. Boston, 126 Mass. 442, note. Also, Const. Tenn. art. 0, § 1. 196 LEGISLATIVE CONTROL. (Ch. 9 subject to its jurisdiction. Its authority extends over these as well as the persons who are either permanently or temporarily within this jurisdiction.® The exercise of its functions re- quires lands, goods, chattels, and money. The corporation must buy and sell.'^ It incurs obligations which must be dis- charged. This property and these obligations may be strictly municipal, or they may be public in the wider sense.^ Out of this complex body, with its varied powers, purposes, and prop- erties, and the administration of its affairs, must arise, there- fore, many kinds of local rights, powers, and obligations, con- flicting and complicated. Where property is bought and held specially for local purposes, the local community have a special interest therein, as has also the creditor who has furnished money for its purchase ; both are interested in its value and continued ownership by the corporation.* 6 The people coming within the limits of tne city are regarded for the time being as inhabitants, and liable in the same maunt'r for violations of lavvs. Heland v. Lowell, 3 Allen (Mass.) 4GT. 81 Am. Dec. 670; City of Knoxville v. King, 7 Lea (Tenn.) 4-il; Villag!- of Buffalo V. Webster, 10 Wend. (N. Y.) 99; City Council of Charles- ton V. Pepper, 1 Rich. Law (S. C) 364; Strauss v. Pontiac, 40 111. 301; Horney v. Sloan, Smith (lud.) 136; Rose v. Hardie, 98 N. C. 44, 4 S. E. 41 ; In re Vandine, 6 Pick. (Mass.) 187, 17 Am. Dec. 351 ; Gosselink v. Campbell, 4 Clarke (Iowa) 296; Kennedy v. Sowden. 1 McMul. (S. C.) 323. TMt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N. E. 695, 35 Am. St. Rep. 515; KETCHUM v. BUFFALO, 14 N. Y. 356: Proprietors of Jeffries Neck Pasture v. Inhabitants of Ipswich, 153 Mass. 42, 26 N. E. 239 ; West Chicago Park Com'rs v. McMullen. 134 111. 170, 25 N. E. 670, 10 L. R. A. 215; Richmond & M. P. Land, Navi gation & Improvement Co. v. West Point. 94 Va. 608, 27 S. E. 460 ; Mc Donogh's Bx'r v. JIurdoch, 15 How. (U. S.) 367, 14 L. Ed. 732. 8 Dill. Mun. Corp. § 66. 9 PEOPLE V. INGERSOLL, 58 N. Y. 1, 17 Am. Rep. 178; San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Jones v. New Haven. 34 Conn. 1; BAILEY v. MAYOR, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. 175, 72 Am. Dec. 730; Western College of Homeopathic Medicine v. Cleveland. 12 Ohio St 375; Small v. Danville, 51 Me. 359; NICHOL v. NASH- § 63) GOVERNMENTAL AND PUBLIC MATTERS. 19T Illustrations. This may be illustrated in the matter of waterworks, gas- works, electric plants, and the like, which, though owned by the city, have a peculiarly private nature, and are protected by the state for the use of those interested when the corporation is dis- solved." Other items of property, such as streets, market places, public squares, and the like, represent the property held for public use.^^ The authority of the legislature to control mu- VILLE, 9 Humph. (Tenn.) 252; Wagner v. Rock Island, 146 111. 139. 34 N. E. 545, 21 L. R. A. 519; Howe v. New Orleans, 12 La. Ann. 481; PEOPLE v. DETROIT, 28 Mich. 228, 15 Am. Rep. 202; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; PEOPLE v. HURL- BUT, 24 Mich. 44, 9 Am. Rep. 103; Niles Waterworks Co. v. City of Niles, 59 Mich. 311, 26 N. W. 525; Commonwealth v. Philadelphia. 132 Pa. 288, 19 Atl. 136; CITY OF PHILADELPHIA v. FOX, 64 Pa. 180; Safety Insulated Wire & Cable Co. v. Baltimore, 66 Fed. 140, 13 C. C. A. 375; Illinoia Trust &, Savings Bank v. Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518; City of Louis- ville V. Commonwealth, 1 Duv. (Ky.) 295, 85 Am. Dec. 624; State V. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; In re Malone's Estate, 21 S. C. 435; United States v. Railroad Co., 17 W^all. (U, S.) 332. 21 L. Ed. 597. 10 Union Tp. v. Rader. 41 N. J. Law, 617; Amy v. Selma, 77 Ala. 103; Rader v. Road District, 36 N. J. Law, 273 ; PEOPLE v. MORRIS. 13 Wend. (N. Y.) 325; City of Clinton v. Railway Co., 24 Iowa, 455; DARLINGTON v. MAYOR, 31 N. Y. 164, 88 Am. Dec. 248; Fish v. Branin, 23 N. J. Law, 484; President, etc., of Citj^ of Paterson v. Society, 24 N. J. Law, 386 ; VON HOFFMAISr v. QUINSY, 4 Wall. (U. S.) 535, 18 L. Ed. 403 ; Butz v. Muscatine, 8 Wall. (U. S.) 575, 19 L. Ed. 490. But see, contra, Coyle v. Mclntire, 7 Houst. (Del.) 44, 30 Atl. 728, 40 Am. St. Rep. 109, where it was held that a municipal corporation does not hold property for the purpose of furnishing its inhabitants with water, as a private corporation, so as to prevent the legislature from modifying the management thereof at will. See, also. SPRING- FIELD FIRE & MARINE INS. CO. V. KEESEVILLE, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667. 11 Elliott, Roads & S. § 656; City of Council Bluffs v. Railroad Co., 45 Iowa, 338, 24 Am. Rep. 773; State v. Railroad Co., 29 Fla. 590, 10 South. 590; Duval County Com'ni ▼. Jackflonyille. 86 Fla. 198 LEGISLATIVE CONTROL. (Ch. 9 nicipal property and affairs does not include the property and affairs which are of a private nature/^ and all legislative acts controlling or disposing of the property and valuable franchises of municipal corporations are subject to the limitations neces- sary for the protection of the vested and peculiar rights of the people and creditors of the municipality in its quasi private affairs.^^ By this term is not meant to include those kinds of property in a city w^hich may be owned and controlled for the use of the citizens either by the city or by some private corpora- tion or individual. Property of this kind, when owned and used by the city for the convenience of its citizens, and as a source of revenue for itself, has been generally held to be con- trolled and protected by the same rules of law as if it were owned by a private corporation, and therefore is not subject 196, 18 South. 339, 29 L. R. A. 416; Chicago & W. I. R. Co. v. Dunbar. 100 111. 110; Portland & W. V. R. Co. v. Portland, 14 Or. 15;8, 12 Pac. 265, 58 Am. Rep. 209. See, also, People v. Kerr, 27 N. Y. 188. where the court said, with reference to the holding of streets by the corporation, that it "is as directly under the power and control of the legislature for any public purpose as any property held by the state or any public body or officers, and its application cannot be challenged by a corporation, which, in respect to such property at least, is a mere agent of the sovereign power of the people." 12 DARLINGTON v. MAYOR, 31 N. Y. 164, 88 Am. Dec. 24i:. City of Clinton v. Railroad Co., 24 Iowa. 455; City of Louisville v. University, 15 B. Mon. (Ky.) 642; Portland & W. V. R. Co. v. Port- land, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299; People v. Kerr, 27 N. Y. 188; Mercer v. Railroad Co., 36 Pa. 99; Mayor, etc., of City of New Orleans v. Hopkins, 13 La. 326; New Orleans, M. & C. R. Co. V. New Orleans, 26 La. Ann. 517; Councils of Reading v. Com- monwealth, 11 Pa. 196, 51 Am. Dec. 534; Wagner v. Rock Island. 146 111. 139. 34 N. E. 545, 21 L. R. A. 519. 18 Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. 271. 22 C. C. A. 171, 34 L. R. A. 518; 1 Smith, Mun. Corp. § 1702. The legislature of a state has no right to interfere Avith and control by compulsory legislation the action of municipal corporations with respect to property and contracts rights of purely local concern. People v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605. § 64) OFFICERS WITH GOVERNMENTAL FUNCTIONS. 199 to discretionary legislative control.** So, also, the lands or other property which have been acquired by a municipal cor- poration by gift or purchase for local uses.^' MUNICIPAL OFFICERS CHARGED AVITH PERFORMANCE OF GOVERNMENTAL FUNCTIONS. 64. la the absence of constitutional inhibition, the legisla- ture has anlimited po^wer of control over those mu- nicipal officers x^ho are charged vpith the performance of governmental functions devolved upon it, but can- not interfere with those officers vtrho perform func- tions of a distinctly municipal character. This power is illustrated in many of the states by the crea- tion of what is known as the "metropolitan police" for the lar- ger cities. This police force is usually appointed and con- trolled by a board of commissioners, chosen either by the legis- lature or Governor of the state, as an exercise of the sover- eign power of legislation and patronage.^* In Indiana it has 14 People v. Kerr, 27 N. Y. 188; Portland & W. V. R. Co. v. Port- land, 14 Or. 188, 12 Pac. 2G5, 58 Am. Rep. 299; New Orleans, M. & C. R. Co. v. New Orleans, 26 La. Ann. 517; Town of Southampton V. Oyster Co., 116 N. Y. 1, 22 N. B. 387; DARLINGTON v. MAYOR. 31 N. Y. 164, 88 Am. Dec. 248; Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130; Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N. E. 695, 35 Am. St. Rep. 515; City of AVelliugton v. Township, 46 Kan. 213, 26 Pac. 415; Reading v. Commonwealth, 11 Pa. 196, 51 Am. Dec. 534; State ex rel. Attorney General v. Schweickardt, 109 Mo. 496, 19 S. W. 47 ; Mercer v. Railroad Co., 36 Pa. 99. 16 Webb V. Mayor, 64 How. Prac. (N. Y.) 10; Terrett v. Taylor, 9 Cranch (U. S.) 52, 3 L. Ed. 650; 2 Kent, Comm. 257. See cases cited in note 14. 16 CITY OF BALTIMORE v. STATE, 15 Md. 376, 74 Am. Dec. 572; PEOPLE v. DRAPER, 15 N. Y. 532; People v. Albertson, 55 N. Y. 50; PEOPLE v. DETROIT, 28 Mich. 228, 15 Am. Rep. 202; Burch V. Hardwicke, 30 Grat (Va.) 24, 32 Am. Rep. 640; People V. Chicago, 51 111. 17, 2 Am. Rep. 278; People v. McDonald, 69 N. r. 302; People v. Mahaney, 13 Mich. 481; State v. Covington, 29 200 LEGISLATIVE CONTROL. (Ch. 9 been held that this power to interfere with local self-govern- ment is forbidden by its Constitution/ '^ and it is difficult to restrain the expression of a wish that this essentially Ameri- can feature of home rule were likewise protected in all the states. The chief difficulty in the application of this legislative power lies in determining what offices are governmental and w^hat municipal. Upon this line of contention the courts of various states have divided as to committees for parks and streets and water supply.^" There is, however, unanimity of judicial opinion that the legislature may provide for the ap- pointment of the members of a municipal police force by a board of commissioners,^^ while the mayor has been held to be Ohio St. 102 ; STATE v. DENNY, 118 lud. 449, 21 N. E. 274, 4 L. R. A. 65 : State v. Hunter, 38 Kan. 578, 17 Pac. 177. But see City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. 17 City of Evansville v. State, 118 Ind. 420, 21 N. E. 267, 4 L. R. A. 93; STATE v. DENNY, 118 Ind. 449, 21 N, B. 274. 4 L. R. A. 65. 18 PEOPLE V. DRAPER, 15 N. Y. 532; Daley v. St. Paul, 7 Minn. ;590 (Gil. 311); St. Louis County Court v. Griswold, 58 Mo. 175. See, also, PEOPLE v. DETROIT, 28 Mich. 228, 15 Am. Rep. 202; People V. Albertson, 55 N. Y. 50; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829. 19 "The power of the legislature to provide for the appointment of the members of a municipal board of police has been affirmed in oveiy instance in which it has been so challenged and presented as to require the judgment of courts. Those courts which hold to the doctrine that the control of matters of purely local concern cannot be taken from the people of the locality place their decisions upon the ground that the selection of purely peace officers is not a local matter, but is one of state concern, inasmuch as such officers belong to the constabulary of the state. But while the reasoning of the courts is diverse, the ultimate conclusion reached by all the cases is the same." Elliott, C. J., in State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566; CITY OF BALTIMORE v. STATE, 15 Md. 376, 74 Am. Dec. 572; People v. Mahaney, 13 Mich. -181; PEOPLE V. DRAPER, 15 N. Y. 532; People v. Chicago, 51 111. 17, 2 Am. Rep. 278. § 65} PUBLIC FUNDS AND REVENUES. 201 a municipal officer, and his office not subject to state control." To the contention that taxation and representation go together, the Supreme Court of Maryland replied : "Every city is repre- sented in the state legislature, and it is for that body to deter- mine how much power shall be conferred by the municipal charters which it grants, and to fix the salary which police officers shall receive, and to require a payment by those who get the benefit of their services." ** PUBLIC FUNDS AND REVENUES. 65. The legislature has the same pother over the public reve- nues of a mnnicipality as over the immediate funds of the state, and in the exercise of this authority it may appropriate these revenues to any public purpose con- ducive to the public good. The ordinary revenues of a city are not its property in the sense in which private property is held by an individual. Such revenues belong to the public, and the collection and appro- priation thereof by a city is the exercise of a trust function by the municipality for t]-^ !^enefit of the public. The legislature is the representative oi .i.e public in this as well as other mat- ters, and it may change these public revenues from one public object to another at its discretion. ^^ The doctrine is generally recognized that no municipal corporation can have any vested right in the powers conferred upon it for governmental pur- poses.^* Therefore revenues raised by taxation, though levied 20 Britton v. Steber, 62 Mo. 370: State ex rel. Wingate v. Valle, 41 Mo. 29. But see Attorney General v. Common Council, 112 Mich. 445, 70 N. W. 4.50, 37 L. R. A. 211. «i City of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572. 22 Creigliton v. Board, 42 Cal. 446. In Board of Sup'rs of Sanga- mon County V. City of Springfield, 63 111. 66, it was held tliat the revenues are the result of taxation exercised for the public good, and the public interest requires that the legislature shall have power to direct and control their application. 2 3 PEOPLE V. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; PEOPLE 202 LEGISLATIVE CONTROL. (Ch. 9 for specific public purposes, are so far subject to the legislative will that by it they may be applied to other uses of the munici- pality.'* In an early Illinois case it was decided that the legis- lature had authority to repeal the power it had given to cities to grant Hcenses for the sale of intoxicating liquors, the fees of which were directed to be appropriated to the support of city paupers, Judge Caton in the opinion remarking that the charter power to license "gives the city no more a vested right to issue licenses because the Legislature specified the objects to which the money should be applied, than if it had been put into the general fund of the city." ^^ When the city of Lafay- ette was consolidated with New Orleans it was provided that the respective obligations of the two cities should rest upon and be borne by the former territory of the two cities sev- erally; but this just and equitable arrangement was, over the protest of the people of Lafayette, whose burden had been light, soon changed by a statutory provision requiring all portions of the consolidated city to bear equal parts of taxa- tion. The Supreme Court of Louisiana answered the com- plaint of the citizens of Lafayette with a repetition of the fun- damental doctrine that public corporations are wholly under the control of the legislature, and it may provide in what man- ner taxes shall be levied to support them and pay their debts.^" V. MORRIS, 13 Wend. (N. Y.) 335. In City of St. Louis v. Sheilds. 7)2 Mo. 351, the court said: "It is an unsound and even absurd proposition that political power conferred by the legislature can become a vested right, as against the government, in any individual or body of men." See, also, VON HOFFMAN v. QUINCY, 4 Wall. (U. S.) 5.35, 18 L. Ed. 403. 24l>eople V. Power. 25 111. 187; VON HOFFMAN v. CITY OF QUINCY, 4 Wall. (U. S.) 535, 18 L. Ed. 403. "However great the control of the legislature over the corporation while it is in existence, it must be exercised in subordination to the principles which secure the inviolability of contracts." United States v. New Orleans, 103 U. S. S.IS. 20 L. Ed. 395. 2 5 GUTZWELLER v. PEOPLE, 14 111. 142. See. also, SANGA- .MON CO. V. SPRINGFIELD, 63 111, 66; Richland Co. v. Lawrence Co., 12 111. 1. 2e LAYTON V. NEW ORLEANS, 12 La. Ann. 515. j 65) PUBLIC FUNDS AND REVENUES. 203 Authority in Public Matters only. This power of the Legislature to control municipal funds applies only to the strictly public or governmental revenues of the city, and rests obviously upon the sovereign legislative power of the state in all public matters. This power of con- trol does not exist with regard to property in which the mu- nicipality has a private interest or creditors have a vested right. ^^ Public revenues, however, are not regarded as pri- vate property, nor has any one a vested right in them until after their actual appropriation.-* That this power pertains to public benefits was judicially declared and maintained in the celebrated case of State v. Railroad Co., decided by the Su- preme Court of Maryland in 1842, and affirmed by the Su- preme Court of the United States in 18-14.^® The railroad company accepted a charter requiring it to locate and build its road through three certain towns, upon penalty, in case of failure, that it should forfeit $1,000,000 to the state of Mary- land for the use of Washington county. After action brought to recover the penalty, the legislature repealed that clause of the charter which imposed the penalty, and thereupon, under a plea puis darrein continuance, it was held that the county could not recover, since it was obtained for the state; and the penalty was released.^" Here again it was declared that the aT STATE EX REL. MARCHAND v. NEW ORLEANS. 37 La. Ann. 13; United States v. New Orleans, 103 U. S. 358, 26 L. Ed. 395; Louisiana ex rel. Southern Bank v. Pilsbury, 105 U. S. 278, 2G L. Ed. 1090; Nelson v. St. Martin's Parish, 111 U. S. 716, 4 Sup. Ct. 648, 28 L. Ed. 574; VON HOFFMAN v. CITY OF QUINCY, 4 Wall. (U. S.) 535, 18 L. Ed. 403; Oilman v. Sheboygan, 2 Black (U. S.) 510, 17 L. Ed. 305; Ralls County Court v. United States, 105 U. S. 733, 26 L. Ed. 1220; Goodale v. Feunell, 27 Ohio St. 426, 22 Am. Rep. 321. 2 8 Memphis v. United States, 97 U. S. 2U3, 24 L. Ed. 920; VON HOFFMAN V. CITY OF QUINCY, 4 Wall. (U. S.) 535. IS L. Ed. 403; Pereles v. City of Water town, 6 Biss. 79. Fed. Cas. No. 10,980. 29 STATE V. RAILROAD CO., 12 Gill & J. (Md.) 309, 38 Am. Dec. 319, affirmed 3 How. 534, 11 L. Ed. 714. 30 Id. 204 LEGISLATIVE CONTROL. (Ch. 9 corporation had no vested right in such a fund as this, but that the same was under the sovereign control of the legis- lature. Examples of Power. This is the general rule with regard to public property own- ed and controlled by the municipality as trustee or representa- tive of the public for public use, which could not be held by private individuals for such use. As a consequence, the legis- lature has full power over the revenues of a corporation, the source of which it may prescribe and alter at its pleasure.^^ It may give or it may withhold, for example, the power to grant and tax licenses for various occupations ; ^^ also the power to levy and collect wharfage or ferriage, ^^ or penalties for breach of law or of contract.** It may ratify void local »i Carondelet Canal Nav. Co. v. New Orleans, 44 La. Ann. 394. 10 So. 871; People v. Pratt, 129 N. Y. 68, 29 N. E. 7; McGee v. Salem, 149 Mass. 238, 21 N. E. 386; Northampton Co. v. Railway Co., 148 Pa. 282, 23 Atl. 895; Lucas v. Board, 44 Ind. 524; Taylor V. Robinson, 72 Tex. 364, 10 S. W. 245; Anderson v. Mayfield, 93 Ky. 230, 19 S. W. 598; Tice v. Mayfield, Id.; People v. Fields, 58 N. Y. 491; Home Ins. Co. v. City Council, 93 U. S. 116, 23 L. Ed. 825; Terrel v. Wheeler, 123 N. Y. 76, 25 N. E. 329; Youngs v. Hall. 9 Nev. 212; Darst v. Griffin, 31 Neb. 668, 48 N. W. 819; Board of Education v. Commissioners, 107 N. C. 110, 12 S. E. 190; Essex Public Road Board v. Skinkle, 140 U. S. 334, 11 Sup. Ct. 790, 35 L. Ed. 446; Love v. Schenck, 34 N. C. 304. 32 SANGAMON COUNTY v. SPRINGFIELD, 63 111. 71; City of Richmond v. Railroad Co., 21 Grat. (Va.) 604; People v. Meyer, 5 N. Y. Supp. 69; People v. Power, 25 111. 187; Richland Co. v. Law- rence Co., 12 111. 1; Mendocino Co. v. Bank, 86 Cal. 255. 24 Pac. 1002; Grantham v. State, 89 Ga. 121, 14 S. B. 892; Home Ins. Co. v. Augusta, 93 U. S. 116, 23 L. Ed. 825. 3 3 City of St. Louis v. Sheilds, 52 Mo. 351. 34 Ex parte Christensen. 85 Cal. 208, 24 Pac. 747; State v. Rail- road Co., 12 Gill. & J. (Md.) 399, 38 Am. Dec. 319; Maryland v. Same, 3 How. (U. S.) 534, 11 L. Ed. 714; Holliday v. People, 5 Oilman (111.) 216; Conner v. Bent, 1 Mo. 235; Coles v. Madison Co., Breese (111.) 154, 12 Am. Dec. 161; Chicago «& A. R. Co. v. Adler, 56 111. 344. § 65) PUBLIC FUNDS AND REVENUES. -05 assessments ; " it may compel the satisfaction by the city of nonlegal claims against it; ^^ it may regulate the use of streets, highways, and other public places; ^^ it may transfer the con- trol of the parks, streets, and other public places to a board of commissioners appointed by the state. ^® It may also create and appoint a board of police commissioners, and regulate the compensation for them and for the police officers of the mu- nicipality, and compel their payment out of the municipal treasury.^® In short, it has been repeatedly adjudicated that the legislature has the same power over the revenues of the 3 5 City of Baltimore v. Horn, 26 Md. 194; Great Falls Ice Co. v. District of Columbia, 19 D. C. (U. S.) 327; Lennou v. New York, 55 N. Y. 361. 36 THOMAS V. LELAND, 24 Wend. (N. Y.) 65; Creighton v. Board, 42 Cal. 446; People of State of New York v. Squire, 145 U. S. 175. 12 Sup. Ct. 880, 36 L. Ed. 666; CITY OF NEW ORLEANS v. CLARK, 95 U. S. 654, 24 L. Ed. 521; CITY OF GUILFORD v. SUPERVISORS, 13 N. Y. 143; People v. Supervisors, 70 N. Y. 228; Baker v. Seattle, 2 Wash. St. 576, 27 Pac. 462; Smith v. Morse, 2 Cal. 524; Grogan v. San Francisco, 18 Cal. 590; Brewster v. Syracuse, 19 N. Y. 116; Wilder v. East St. Louis, 55 111. 133; United States V. Railroad Co., 17 Wall. (U. S.) 322, 21 L. Ed. 597; City of Philadelphia v. Field, 58 Pa. 320; Mayor, etc., of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Mayor, etc., of New York v. Bank, 110 N. Y. 446, 18 N. E. 618; People v. Mayor, 4 Comst. (N. Y.) 419, 55 Am. Dec. 266; State v. Hampton, 13 Nev. 441; North Missouri R. Co. V. Maguire, 49 Mo. 490, 8 Am. Rep. 141; People v. Burr, 13 Cal. 343. The legislature has power to charge the payment of a deficiency against a city for liability incurred in excess of its charter limita- tion, so far as the claims are based on an equitable or a legal ground. City of Syracuse v. Hubbard, 64 App. Div. 5S7, 72 N. Y. Supp. 802. 37 Appeal of McGee, 114 Pa. 470, 8 Atl. 237; People v. Walsh, 96 111. 232, 36 Am. Rep. 135; People v. Railroad Co., 45 Barb. (N. Y.) 73; Simon v. Northup, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171. 3 8 People Y. Walsh, supra; Cicero Lumber Co. v. Cicero, 176 111. 9, 51 N. E. 758, i2 L. R. A. 696, 68 Am. St. Rep. 155. 38 Mayor, etc., of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; PEOPLE v. MAHANEY, 13 Mich. 481; PEOPLE v. DRAPER, 15 N, Y. 532. 206 LEGISLATIVE CONTROL. (Cll. 9 municipality that it has over the funds of the state, and may thus direct their application to such purposes as it deems ap- propriate for the public welfare.*" Political Power Conferred not a Vested Right. All of these powers, and many others pertaining to the con- tracts and obligations of the city, are based upon the propo- sition that political power conferred by the legislature cannot become a vested right, as against the government, in any in- dividual or body of men.*^ Such power exists subject to the legislative will, and may be withdrawn at any time, subject to constitutional limitations ; and so far has this doctrine been carried in lowa,*^ and some other states, that it has been held that the legislature may compel a city to pay a debt in- curred by a municipality in excess of the legislative limitation upon indebtedness, which is a very practical overruling of the doctrine of ultra vires. If the limitation be placed by constitu- tion, such power does not exist in the legislature.*^ So, too, 40 Richland County v. Lawrence County, 12 111. 1; Palmer v. Fitts. 51 Ala. 4S9; Payne v. Treadwell, 16 Cal. 220; City of San Francisco v. Canavan, 42 Cal. 541; Rawson v. Spencer, 113 Mass. 40; Weymouth & B. Fire Dist. v. Commissioners, 108 Mass. 142; Town of Beloit V. Morgan, 7 Wall. (U. S.) 619, 19 L. Ed. 205 : Town of Mont- pelier v. East Montpelier. 29 Vt. 12, 67 Am. Dec. 748; Trustees of Schools V. Tatman, 13 111. 28; Davock v. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783; Love v. Schenck, 34 N. C. 304. It is within the power of the legislature to impose a tax upon a particular subdivision of a municipality of the state when in its judgment it is for the benefit of the locality as well as of the state at large. Young v. Kansas City, 152 Mo. 661, 54 S. W. 535. See PRINCE V. CROCKER, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. 41 UNITED STATES v. NEW ORLEANS, 103 U. S 358 2L L. Ed. 395; PEOPLE v. MORRIS, 13 Wend. (N. Y.) 33.j. 42 Scott V. Davenport, 34 Iowa, 208; City of Syracuse v. Hub- bard, 64 App. Div. 587, 72 N. Y. Supp. 802; Mosher v. School Dist, 44 Iowa, 122. 43 CITY OF NEW ORLEANS v. CLARK, 95 U. S. 644, 24 L. Ed. .~i21; Creighton v. Supervisors, 42 Cal. 446. § 66) FRANCHISES. 207 the legislature may direct and levy compulsory taxes upon a corporation when necessary to perform its duties or discharge its valid obligations.** Likewise the state may compel the as- sessment and disbursement of public revenue for the erection and support of schoolhouses and schools,*" public highways,*® bridges, and canals,*^ or any other matters which are state concerns as distinguished from municipal. FRANCHISES. 66. Public franchises held by a municipal corporation under legislative grant may be altered or revoked at the leg- islative vrill. The franchise to be a corporation, which is held to belong to the corporators of a private corporation, and to be protected by the contract clause of the federal Constitution, is obviously as to municipalities a matter of merely public concern, and therefore under the legislative control in all particulars and at all times, as we have heretofore seen in considering the subject ** Jilemphis v. Brown, 97 U. S. 300, 24 L. Ed. 924; Vance v. Little Kock, 30 Ark. 43.j, 439; CITY OF NEW ORLEANS v. CLARK, 95 U. g. 644, 24 L. Ed. 521; LAYTON v. NEW ORIGANS, 12 La. Ann. 515; Eschenburg v. Commissioners, 129 Ind. 398, 28 N. E. 805; Maltby v. Tautges, 50 Minn. 248, 52 N. W. 858; Hawkins v. .Tones- boro, 63 Ga. 527; Little v. Commissioners, 40 N. J. Law, 397; City of San Francisco v. Canavan, 42 Cal. 541; Carpenter v. People, 8 Colo. 116, 5 Pac. 828; MT. PLEASANT v. BECKWITH. 100 U. S. 514, 25 L. Ed. 699. 4 5 State V. Blue, 122 Ind. 600, 23 N. E. 963; State Board of Educa- tion V. Aberdeen, 56 Miss. 518; School Dist. No. 1 v. Webei*, 75 Mo. 558. 48 People V. Supervisors, 50 Cal. 561; People v. Flagg, 46 N. Y. 401; Jensen v. Supervisors, 47 Wis. 298, 2 N. W. 320. *7 Guilder v. Otsego, 20 Minn. 74 (Gil. 59); City of Philadelphia V. Field, 58 Pa. 320; Simon v. Northup, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171; Thomas v. Leland, 24 Wend. (N. Y.) 65; Pumphrey V. Baltimore, 47 Md. 14.-, 28 Am. Rep. 446; CITY OF PHILADEL- PIIIA V. FOX, 64 Pa. 169. 208 LEGISLATIVE CONTROL. (Ch. 9 of the charter.'*' All municipal franchises are subjects of legis- lative grant, and, whether granted to third persons or to the corporation itself, may be revoked before the grantee has per- formed the public service imposed as a condition of the grant.*® For example, the right to construct waterworks, gasworks, or electric plants, and to supply the city and its citizens with these public utilities necessary for an urban population in modern times, may be granted either to the municipality or to a private corporation organized for that purpose. Before the work has been done to construct these public utilities, the state may re- peal the law by which they were granted, and thus revoke the franchises ; ^° but with regard to private corporations these franchises, as soon as the works are completed, become con- tracts, protected by the rule in the Dartmouth College Case, and no law can be passed by the state to impair the obligations of this contract. ^^ The same rule, it is believed, should apply in case these franchises are granted to the municipality and exercised by it; but here arises a conflict between this con- tractual right to the franchises so granted and the undoubted power of the legislature to dissolve the corporation, and the subject becomes one of complication and difficulty. Suffice it to say for the present that the legislative control of such fran- chises as supply these public utilities is not absolute and un- limited.^^ Limitations upon this power will be considered here- 48 LAYTON V. NEW ORLEANS, 12 La. Ann. 515; GIKARD v. PHILADELPHIA, 7 Wall. (U. S.) 1, 19 L. Ed. 53; Smith v. Inge. 80 Ala. 283; 1 Dill. Mun. Corp. §§ G3-GS; Elliott, ]Mun. Corp. § 2. 49 As indicative of the lack of power of a municipality to grant a franchise, in Cain v. Wyoming, 104 111. App. 538, it was held that a city ordinance granting the privilege of constructing and operating a system of watervvorks is a mere license. A franchise must be granted by the legislature; a municipal body cannot confer it. 60 Trustees of Schools v. Tatman, 13. 111. 28, 30; DARLINGTON V. MAYOR, 31 N. Y. 1(J4, 88 Am. Dec. 248; HARTFORD BRIDGE CO. V. EAST HARTFORD, IG Conn. 149. 61 DARTMOUTH COLLEGE v. WOODWARD, 4 Wheat. (U. S.) 518, 4 L. Ed. G29. 62 1 Dill. Mun. Corp. § G8, note. The dissolution of the corpora- § 67) CONTEACTS AND OBLIGATIONS. 209 after under the head of "Quasi Public Corporations." " It has been held with regard to similar franchises that the legis- lature has unqualified right of revocation; for example, a public corporation has no property right in a ferry franchise acquired under a legislative grant, ^* nor in a wharf franchise to maintain wharves and charge wharfage.^^ Such powers are held by the United States Supreme Court to be "merely ad- ministrative, and may be revoked at any time, not touching, of course, any property of the city actually acquired in the course of administration." ^^ CONTRACTS AND OBLIGATIONS. 67. The legislative powrer of the state over the contracts and obligations of municipalities is limited by the vested rights of third parties, and the prohibitions found in many of the state constitutions. Subject to these lim- itations, the state has conrol over the contracts and obligations of a municipality. This power was illustrated in the matter of licensing of wharves and ferries hereinbefore referred to, wherein was shown that the municipality has no vested rights in these things, upon the theory, expressed in some of the cases, that in such matters the corporation may not acquire vested rights as tion is the death of the trustee of the community for whose use and benefit the franchise was granted. The beneficiaries still sur- vive, and the public trust continues. The state as sovereign may and will see that the trust does not fail for want of a trustee, but will appoint a successor to hold and administer the trust for the welfare of the community. 5 3 Post, § 189. 64 Hartford Bridge Co. v. East Hartford, 16 Conn. 149; EAST HARTFORD v. HARTFORD BRIDGE CO., 10 How. (U. S.) 511, 13 L. Ed. 518, 531. 66 New Orleans, M. & T. E. Co. v. Ellerman, 105 U. S. 166, 26 L. Ed. 1015. 66 Id. INO.COBP. — 14 210 LEGISLATIVE CONTROL. (Ch. 9 against its creator ; '^ but practically its right to acquire a right in property has been recognized, as we shall see hereafter. The following decisions may illustrate the judicial opinion upon these subjects: Parties who have become creditors of a municipal corporation upon the faith of the taxing power granted to it to meet its obligations may enforce the execution of this power by the appropriate process.^* The taxing statute is thus held to be a part of the contract whose obligation can- not be impaired ; but the mode of taxation may be altered if the change does not materially affect the creditors' security.'® So, too, certain property may be made exempt from, which was originally subject to, taxation.*" But where credit has been given to a municipality upon the faith of a statutory pro- vision that no further bonded indebtedness shall be contracted by the city, an injunction has been granted to restrain an in- crease of bonded indebtedness, upon the ground that it would impair the obligations of a contract.*^ So, also, creditors may acquire a vested right in a sinking fund provided for their se- curity, so as to authorize them to call upon the courts to pre- vent any material change in its character, or diversion of it to B7 PEOPLE V. MORRIS, 13 Wend. (N. Y.) 325; DARLINGTON V. MAYOR, 31 N. Y. 164, 88 Am. Dec. 248; CITY OF PHILADEL- PHIA V. FOX, 64 Pa. 180. 58 PORT OF MOBILE v. WATSON, 116 U. S. 289, 6 Sup. Ct. 398, 29 L. Ed. 620; Oilman v. Sheboygan, 2 Black (U. S.) 510. 17 L. Ed. 305; State v. New Orleans, 37 La. Ann. 13; UNITED STATES V. NEW ORLEANS, 103 U. S. 358, 26 L. Ed. 395; VON HOFFMAN V. QUINCY, 4 Wall. (U. S) 535, 18 L. Ed. 403; Louisiana v. Pilsbury, 105 U. S. 27S, 26 L. Ed. 1090; Nelson v. St. Martin's Parish. Ill U. S. 716, 4 Sup. Ct. 648, 28 L. Ed. 574; Goodale v. Fennell, 27 Ohio St. 426, 22 Am. Rep. 321. 5 9 People V. Bond, 10 Cal. 563; Cooley, Const. Lim. (6th Ed.) 347, 349. 6 Cooley, Const. Lim. (6th Ed.) 348; Seibert v. Lewis, 122 U. S. 284, 7 Sup. Ct. 1190. 30 L. Ed. 1161; Oilman v. Sheboygan, 2 Black (U. S.) 510, 17 L. Ed. 305; Goodale v. FenneU, 27 Ohio St 426, 22 Am. Rep. 321. 61 Smith V. Appleton, 19 Wis. 468. § 68) OBLIGATIONS IMPOSED BY LEGISLATURE. 211 Other uses, since the law had pledged it to them for their se- curity.*' OBLIGATIONS IMPOSED BY LEGISLATURE. 68. Upon the elementary principle that duty imposes obliga- tion, the legplslature has authority to impose upon the corporation without its consent, and even against its protest, such obligations as will enable it to perform its public functions. It has accordingly been held that for such purpose a city may be compelled to pay a debt in excess of a legislative limit of indebtedness, to levy and collect taxes and appropriate them to the building and repair of highways, bridges, and canals, as being matters of public, as distinguished from municipal, concern;''^ also to expend money for the improvement of docks, wharves, and levees ; ^* also to collect and appropriate money for the support of public schools of the city, ^'^ and even to provide for the distribution of money raised by taxa- tion for school purposes after its collection; *"* also to compel the payment by a public corporation of a just debt not en- forceable in law or equity ;°'^ and in a leading case the Su- »2 Board of Liquidators of City Debts v. Municipality No. 1, 6 La. Ann. 21; KELLY v. MINNEAPOLIS, 63 Minn. 125, 65 N. W. 115, 30 L. R. A. 281; People v. Bond, 10 Cal. 563. 63 THOMAS V. LELAND, 24 Wend. (N. Y.) 65; People v. Board, 50 Cal. 561; Jensen v. Board, 47 Wis. 298, 2 N. W. 320; People v. Flagg, 46 N. Y. 401. In one case this duty was enforced by man- damus at the instance of a private person not showing either in- terest or injury. Pumphrey v. Baltimore, 47 Md. 145, 28 Am. Rep. 446. 6 4 Eastern & A. R. Co. v. Railroad Co., 52 N. J. Law, 267, 19 Atl. 122. 65 State V. Blue, 122 Ind. 600, 23 N. E. 963; State v. Haworth, 122 Ind. 462, 23 N. E. 946, 7 L. R. A. 240. 68 State Board of Education v, Aberdeen, 56 Miss. 518; School Dist. No. 1 V. Weber, 75 Mo. 558. 6 7 Creigbton v. Board, 42 Cal. 446; Vasser v. George, 47 Miss. 212 LEGISLATIVE CONTROL. (Ch. D preme Court of New York has carried this doctrine to the ex- tent of sustaining a statute passed levying a tax upon the property of a corporation, and appropriating the same to the payment of a private demand against the town, which had been expressly rejected by the voters of the town at an election held under legislative authority for that purpose, and intended as a settlement of the right.®* Judge Cooley says this authority may be defended upon the ground that it is the duty of the state to enforce just obligations for the public benefit which have been incurred in the exercise of public power conferred upon a corporation. ®® But it is equally well settled by re- peated decisions that it rests with the inhabitants of a munici- pality to determine conclusively whether a debt shall be in- curred for purely municipal purposes; '^^ also that a corpora- tion cannot be compelled to become a stockholder in a rail- way company, or other private corporation; ''^ and in the cele- brated Detroit Park Case it was ruled that a public park was a matter of municipal concern, and that the levy of a tax for the purchase and improvement of such parks could not be 713; TOWN OF GUII.FORD v. CORNELL, 18 Barb. (N. Y.) 615; Hasbrouek v. Milwaukee, 21 Wis. 219; CITY OF NEW ORLEAx\S v. CL.\RK, 95 U. S. G44, 24 L. Ed. 521; Brewster v. Syracuse, 19 N. Y. 116; People v. Supervisors, 70 N. Y. 228; Lycoming County v. Union County, 15 Pa. 166. 53 Am. Dec. 575; State v. Hampton, 13 Nev. 441. The following cases declare the right of the municipality to a trial in due course of law: Plimpton v. Somerset, 33 Vt. 283; San- born V. Commissioners, 9 Minn. 273 (Gil. 258); State v. Tuppuu, 29 Wis. 664, 9 Am. Rep. 622. See, also, Cooley, Tax'n, 687. 68 TOWN OF GUILFORD v. CORNELL, 18 Barb. 615. See, also. Carter v. Bridge Proprietors, 104 Mass. 236; CITY OF NEW ORLEANS V. CLARK, 95 U. S. 654, 24 L. Ed. 521; United States y. Railroad Co., 17 Wall. (U. S.) 322, 21 L. Ed. 597; People v. Burr, 13 Cal. 343; North Missom-i R. Co. v. Maguire, 49 Mo. 490, 8 Am. Rep. 141. 6 9 Cooley, Tax'n (2d Ed.) 685. 70 People V. Harper, 91 111. 357; People v. Batchellor, 53 N, Y. 128, 13 Am. Rep. 480; PEOPLE v. DETROIT, 28 Mich. 228, 15 Am. Rep. 202; Atkins v. Randolph, 31 Vt. 226. 71 People V. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480. § 69) PKOPERTT. 213 enforced by the legislature without the consent of the munici- pality.'^ ^ The only exception to this wholesome doctrine is to be found in the state of Pennsylvania, wherein, under direct legislative act sustained by the courts, the people of Philadel- phia were unwillingly compelled to pay hundreds of thousands of dollars annually for the erection of the city hall "upon a scale of magnificence better suited for the capital of an em- pire than the municipal buildings of a debt-burdened city." " The same act which declared that the city must have these fine buildings appointed certain citizens a body of commissioners for their erection, and made this body self-perpetuating, and authorized it to make contracts for the construction of the buildings, and to make requisitions on the common council for the expenses thereof, the citizens of Philadelphia having no vote or voice whatever as to the subject* This, of course, could only be defended upon the idea that the city hall was not municipal, but governmental, property, over which the state had supreme control. Between Pennsylvania at one extreme and Michigan at the other, the other states stand in a middle position of greater safety, even if greater doubt, as to the ad- ministration of the law. PROPERTY. 69. Public property held by a miinicipaHty for tbe benefit of tbe general public may be controlled and administered by the state as supreme trustee for the public; but property actually acquired by a municipal corporation in the course of administration, and held for the bene- fit of the municipality, is not subject to the absolute control of the legislature. Ts PEOPLE V. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. T* PERKINS V. SLACK, 86 Pa. 283. 7* 1 Dill. Mun. Corp. 74a. The city hall which Pennsylvania thus forced her chief city to build has well been described as "sur- passing in extent and grandeur the townhalls and cathedrals of tbe Middle Ages." 214 LEGISLATIVE CONTROL. (Ch. 9 Here, again, the dual nature of a municipal corporation is disclosed, and difficulties arise in regard to paramount author- ity over municipal property, not in stating the principle, but in its practical application. Contentions inevitably arise over the question, What is strictly municipal property, and what is governmental property ; or what property is held by the municipality for the benefit of the general public, and what for the local benefit? The adjudged cases do not point out any distinct line of separation for these two classes of property, and in the confusion of cases upon this subject it is not wise to attempt to formulate any definite rule of law whereby to dis- tinguish them, other than that suggested in the text. In Michi- gan, where the right of local self-government is fully recog- nized and protected by constitutional provision. Judge Cooley says : "It is immaterial in what way the property was lawfully acquired, whether by labor in the ordinary vocations of life, by gift or by descent, or by making profitable use of a fran- chise granted by the state ; it is enough that it has become pri- vate property, and it is then protected by the law of the land." ''^ It is hardly proper, in other states where home rule is not so highly favored, to speak of any municipal property as private property. It is, however, essentially trust property, the municipality being the trustee, and the people of the local- ity the cestuis que trustent of strictly municipal property.'^® Of this class of property Judge Dillon expresses the opinion : "That while the legislature has full power of legitimate regu- lation and control, it cannot deprive them (that is, in essence, the people of the locality at whose expense it has been acquired, or for whose benefit it was granted) of such property. It is in eflfect fastened with a trust for the incorporated municipality as long as the legislature suffers it to live, and for the benefit 75 City of Detroit v. Plank Road Co., 43 Mich. 147, 5 N. W. 275. 78 NICHOL V. NASHVILLE. 9 Humph. (Tenn.) 252; Small v. Dan- ville, 51 Me. 359; Jones v. New Haven, 34 Conn. 1; Maxmilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468; Western College of Home- opathic Medicine v. Cleveland, 12 Ohio St. 375. § 70) PUBLIC THOROUGHFARES. 215 of the people of the locality if the corporate entity which rep- resents their rights shall be dissolved." '^'^ In New York it was decided that certain real estate held by the city in fee simple absolute under ancient grant, upon which at great ex- pense the city had constructed reservoirs, could not by legis- lative action be converted into a public park without compen- sation to the city.'^^ Upon the dissolution of a municipal cor- poration, as we have seen, so much of its assets as are not stamped with the strictly public character will be taken pos- session of and administered for the benefit of creditors of the corporation by a receiver appointed by the legislature, or by the court of chancery/' PUBLIC THOROUGHFARES. 70. The legislature lias general control over all streets, canals, rivers, and bridges, and other public tborougbfares, and may coHipel tbe municipality to make sucb expen- ditures tbereou for tbeir improvement as it deems best for the public Avelfare. Public thoroughfares are, of course, matters of general as distinguished from local concern. The legislature, therefore, may prescribe what improvements thereon shall be made for the public convenience, and may require the corporation to pay the expense of particular improvements required by it. *** The legislature may use the compulsory power of taxation, or even compel the issuance of bonds by a municipality, for the purpose of raising money to pay for the construction and main- tenance of a bridge or a canal, or wharves or levees in the city 77 1 Dill. Mun. Corp. § 68a. T8 Webb V. Mayor, 64 How. Prac. 10. See. also, Terrett v. Tay- lor, 9 Cranch (U. S.) 52, 3 L. Ed. 650 ; PEOPLE v. INGERSOLL, 58 N. Y. 1, 17 Am. Rep. 178 ; 2 Kent, Comm. 257. 7 1 Dill. Mun. Corp. § 170. 80 People V, Kerr, 27 N. Y. 188; Portland, & W. V. R. Co. v. Portland, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 29U; Daley v. SL Paul, 7 Minn. 390 (Gil. 311). 216 LEGISLATIVE CONTROL. (Cll. 9 limits.'* And in Massachusetts it has been held that the legis- lature may charge the cost of an authorized public improve- ment upon the municipal corporation chiefly benefited there- by.'* In Maryland and some other states, so important is this duty to maintain streets and highways that it may be enforced by mandamus at the suit of a private person without showing special interest or injury.'^ The municipality, however, is usually held to be subject to judicial supervision in the exer- cise of its discretionary power over streets.'* The power of the legislature over streets is so great that it may, so far as the public is concerned, determine to what use they may be put, even to the authorization of a nuisance in them;^^ and in Pennsylvania the power of the legislature to authorize a turnpike gate to be established in a city street has been sup- ported by judicial decision.^® As a consequence of this, street railways are operated in every city of the country, some by horses and others by electricity. Usually, the legislature re- quires that the street railway companies shall obtain their franchise from the city ; ''' but these franchises may be con- ferred by the legislature directly, without regard to corporate 81 Davock V. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783; Guilder v. Otsego, 20 Miun. 74 (Gil. 59); THOMAS v. LELAND, 24 Wend. (N. Y.) 65. 82 Inhabitants of Norwich v. Commissioners, 13 Pick. (Mass.) 60. 83 Pumphrey v. Baltimore, 47 Md. 145, 28 Am. Rep. 446. 84 Sutton V. Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. Rep. 847; Texarkana v. Leach, 66 Ark. 40, 48 S. Wv 807, 74 Am. St. Rep. 68; Douglass v. City Council, 118 Ala. 599, 24 South. 745, 43 L. R. A. 376. 86 State V. Luce, 9 Houst. (Del.) 396, 32 Atl. 1076; Bedell v. Rail- road Co., 44 N. Y. 3G7, 4 Am. Rep. 688; Cleaveland v. Railway Co., 42 Vt, 449; Pennsylvania R. Co. v. Lippincott, 116 Pa. 472, 9 Atl. 871, 2 Am. St. Rep. 618; State v. Parrott, 71 N. O. 311, 17 Am. Rep. 5. 86 Stormfeltz v. Turnpike Co.,' 13 Pa. 555. 87 State ex rel. Laclede Gaslight Co. v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798. § 70) PUBLIC THOROUGHFARES. 217 authority.** In some states the concurrence of both legislature and city is required.*® The legislature likewise possesses the power to locate streets, and may exercise it without municipal consent.®" This, like other municipal powers, may be dele- gated to the municipality.®^ The doctrines of this chapter are believed to have the sup- port of the preponderance of judicial decision in the United States, and to be consistent with the fundamental principles of our government. Classes of Powers, Franchises and Property. The legislature is the supreme trustee for the people of all public powers, rights, and property. The municipality is the local general agent of the state for governmental purposes. It has powers, franchises, and property of two classes : (1) Those held and exercised for the welfare of the general pub- lic ; (2) those held and exercised for the local benefit of the municipality and its inhabitants. The former are subject to the unlimited control of the legislature ; the latter are not thus subject. But the state may administer these trusts and affairs through other agencies than said municipality for the benefit of the cestuis qui trustent.®^ 88 People V. Kerr, 27 N. Y. 188; Dubach v. Railroad Co.. 89 Mo. 483, 1 S. W. 86; Savannah & T. R. Co. v. Savannah, 45 Ga. 602: City of Milwaukee v. Railroad Co., 7 Wis. 85. 89 2 Dill. Mun. Corp. § 701a, note. ooLennon v. New York, 55 N. Y. 365; Sinton v. Ashbury, 41 Cai. 525. 91 2 Dill. Mun. Corp. §§ 680. 727; Northern Transp. Co. v. Chicago. 99 U. S. 035, 25 L. Ed. 336. 92 DARLINGTON v. MAYOR. 31 N. Y. 164, 88 Am. Dec. 248; State V. Railroad Co., 29 Fla. 590, 10 South. 590; Portland & W. V. R. Co. V. Portland, 14 Or. 188. 12 Pac. 265, 58 Am. Rep. 299; Chi- cago & W. I. R. Co. V. Dunbar, 100 111. 110; City of Council Bluffs V. Railway Co., 45 Iowa, 3.58, 24 Am. Rep. 773; People v. Kerr, 27 N. Y. 188; Daley v. St. Paul, 7 Minn. 390 (Gil. 311); CITY OF PHILADELPHIA v. FOX, 64 Pa. 169. 218 PROCEEDINGS AND ORDINANCES. . (Cll. 10 CHAPTER X. PROCEEDINGS AND ORDINANCES. 71. Meetings, 72. Corporate Records. 73. Ordinances. 74. Mode of Enactment. 75. Essentials of Valid Ordinance. 76. Fines and Penalties. 77. Procedure. MEETINGS. 71. The corporate a£Pairs of a municipality mnst be transacted at a corporate meeting of the members of the govern- ing body, duly convened at the stated or notified time and place, a quorum being present, and a majority thereof expressly favoring the action taken. The corporate meeting in the American municipality is a meeting of the governing body established by law, usually con- sisting of aldermen or councilmen, and called the city council. In some states it is composed of two parts, like our Congress and legislatures, and called aldermen and councilmen, re- sembling senators and representatives. Meetings are of two kinds, stated or regular, and called or special ; the stated meet- ing being fixed in time and place by charter, ordinance, or usage; the called meeting, one specially convened in emer- gency.* Notice. Of a stated meetmg every member has due notice by the statute, rule, or usage under which it is held ; ^ but of the 1 1 Dill. Mun. Corp. § 285. 2 Fitzgerald v. Railway Co., 24 R. I. 201, 52 Atl. 887; Willc. Mtin. Corp. § 59. § 71) MEETINGS. 219 called meeting reasonable notice of the time and place is re- quired to be given, if practicable, to every member of the gov- erning body.^ If extraordinary business is to be transacted, then notice must also be given of its nature, but not so of ordinary municipal affairs.* Actual presence of a member not protesting at a called meeting is equivalent to notice. All members must be present or notified to make a valid special meeting.^ The notice must be personally served,' if practica- ble, upon every member of the governing body, excepting only those v^ho are absent from the state or whose where- abouts is unknown.'' Unnotified members who are actually present may avoid the presumption of notification by protest- ing against the meeting for want of notice.* Quorum. A majority of the body constitute a quorum, unless it is otherwise provided by law.® A quorum is competent to trans- 8 1 Dill. Mun. Corp. § 286; Lord v. Anoka, 36 Minn. 17G, 30 N. W. 550. 4 Whitney v. New Haven, 58 Conn. 450, 20 Atl. 666; Willc. Mun. Corp. § 74; Dill. Mun. Corp. § 264. 5 In the sections above cited Judge Dillon gives the provisions of the English Municipal Coi'poratious Act on the subject of meetings and notice. The original Reform Act of 1835 is a monument to the wisdom, patriotism, and legislative skill of the English Bar; and the Consolidation Act of 1882 is the common resort of legislators, judges, and authors as the fountain of modern municipal law. See Moore v. Perry, 119 Iowa, 423, 93 N. W. 510; State v. Smith, 22 Minn. 218; Magneau v. Fremont, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 780, 27 Am. St. Rep. 436; Shaw v. Jones, 7 Ohio Dee. 453, 4 Ohio N. P. 372; Schofield v. Tampico, 98 111. App. 324. 6 Lord V. Anoka, 36 Minn. 176, 30 N. W. 550; PEOPLE v. BATCHELOR, 22 N. Y. 128. 7 City of Knoxville v. Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; State v. Kirk, 46 Conn. 395; Lewick v. Glazier, 116 Mich. 493, 74 N. W. 717. 8 Lord V. Anoka, 36 Minn. 176. 30 N. W. 550. Cf. Mitchell County Sup'rs V. Horton, 75 Iowa, 271, 39 N. W. 394. Heiskell v. Baltimore, 65 Md. 12.5, 4 Atl. 116. 57 Am. Rep. 308; Bavnert v. Paterson. 48 N. J. Law, 395, 6 Atl. 1."); City of Ben wood 220 PROCEEDINGS AND ORDINANCES. (Ch. 10 act corporate business/" and a majority of such quorum is suf- ficient to take any lawful action, or make an election," unless the law governing the corporation requires a greater number. Thus, if the body be composed of nine, then five make a law- ful meeting and three of these may pass any ordinance or reso- lution, or commit the corporation to legal obligation. ^- If the governing body is composed of two parts, these rules will apply to each separate part. Mayor. The executive head of the municipality is the mayor, who is generally also a member of the governing body, and pre- sides over it ex officio. ^^ But in the larger cities his functions are purely executive,^* and the presiding officer is another per- son, either chosen by the members from their own number, or elected by the voters of the corporation to that special office.^ ^ In those municipalities which are called by the name "bor- ough," the executive head is called a burgess in Pennsylvania, and in Connecticut a warden. These correspond to the mayor V. Railway Co., 53 W, Va. 465, 44 S. E. 271; Williams v. Brace, 5 Conn. 190. But wliere the council consists of six members, with the mayor as presiding officer, the mayor and tliree of the council- men do not constitute a quorum, and their acts are void. City of Somerset v. Banking Co., 109 Ky. 549, 60 S. W. 5, 22 Ky. Law Rep. 1129, See State ex rel. City of Carthage v. Milling Co., 156 Mo. 620. 57 S. W. 1008. 10 Mueller v. Egg Harbor, 55 N. J. Law, 245, 26 Atl. 89; Labour- dette V. Municipality, 2 La. Ann. 527; Hutchinson v. Belmar, 61 N. J. Law, 443, 39 Atl. 643. 11 State V. Deliesseline, 1 McCord (S. C.) 52; Cadmus v. Farr, 47 N, J. Law, 208. Some eases rule that assent of a majority will be presumed. See Collopy v. Cloherty (Ky.) 39 S. W. 431. 12 But if the body consist of twelve coimcilmen, seven is a quorum, and four may pass an act. See Wheeler v. Commonwealth, 98 Ky. 59, 32 S. W. 259. 13 Elliott, Mun. Corp. § 255. 14 Jacobs V. San Francisco, 100 Cal. 121, 34 Pac. 630; Cochran v. McCleary, 22 Iowa, 75. 15 State V. Kiichli, 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779. § 71) MEETINGS. 221 of an ordinary municipality. These boroughs exist in three of the United States: Connecticut, Pennsylvania, and New Jersey, and formerly in Minnesota. The mayor's functions are prescribed in the charter,- and differ in various municipalities. In some of them, as the ex- ecutive head of the corporation, he possesses the veto power,^' in others the appointing power, and yet in others both of these; ^^ in some, as the presiding officer, he has power to cast only the deciding vote in case of tie;^* in others his functions and duties are the same as those of any other mem- ber of the board. ^^ The old common-law rule that the mayor was an integral part of a municipal corporation, and his pres- ence necessary to a valid corporate meeting, does not prevail in America.^" When he is absent from the city his office may be supplied by a pro tem. election from among the members of 16 Elliott, Mun. Corp. § 208. A city cannot by ordinance confer a greater power upon its mayor than tliat given by charter. Union Depot & R. Co. V. Smith, 16 Colo. 361, 27 Pac. 329. 17 People V. McAllister, 10 Utah, 357, 37 Pac. 578; People v. Leavy, 47 App. Div. 97, 62 N. Y. Supp. 161. In many municipalities the appointments of officers are made on the nomination of the maj'or and confirmation of the council. O'Brien v. Thorogood, 162 Mass. 598, 39 N. E. 287; Bakely v. Nowrey, 68 N. J. Law, 95, 52 Atl. 289; Armstrong v. Whitehead, 67 N. J. Law, 405, 51 Atl. 472; Kip V. City of Buffalo, 7 N. Y. Supp. 685; O'Connor v. Walsh, 83 App. Div. 179, 82 N. Y. Supp. 499. 18 LAWRENCE v. INGERSOLL, 88 Tenn. 52, 12 S. W. 422, L. R. A. 308, 19 Am. St. Rep. 870; People v. Rector, 48 Barb. (N. Y.) i;03; Launtz v. People, 113 111. 137, 55 Am. Rep. 405; People v. Wright, 30 Colo. 439, 71 Pac. 365; Harris v. People (Colo. App.) 70 Pac. 699; People v. Bresler, 171 N. Y. 302, 03 N. E. 1093; Cate V. Martin, 70 N. H. 135, 46 Atl. 54, 48 L. R. A. G13; City of Somerset V. Smith, 105 Ky. 678, 49 S. W. 456; State v. Yates, 19 Mont. 230. 47 Pac. 1004, 37 L. R. A. 205; Hecht v. Coale, 93 Md. 692, 49 Atl. 660; Bousquet v. State, 78 Miss. 478, 29 South. 399; Ott v. State, 78 Miss. 487, 29 South. 520; State v. Mott, 111 Wis. 19, 86 N. W. 569. 19 1 Dill. Mun. Corp. § 270. 20 Martindale v. Palmer, 52 Ind. 411. 222 PROCEEDINGS AND ORDINANCES. (Cll. 10 the board, and the person thus chosen mayor pro tern, has the powers and may perform the functions of the mayor for the time being.^* Adjourned Meeting. A valid stated or called meeting has the implied corporate power to adjourn to a future day and then resume its busi- ness.^* This adjourned meeting is merely a continuation of the original meeting, and notice is not required for it.** At such meeting any business may be transacted which could properly have come before the board at the original meeting, and the mode of proceeding at such meeting is the same as that in the original meeting.** 21 Commonwealth v. Corcoran, 9 Kulp (Pa.) 507. People v. Blair, 82 111. App. 570, Avhere it was held that if the mayor is in the city, but is absent from the meeting, either by reason of illness, executive business in another part of the city, or by choice, the power of the council is conlined to the appointment of a temporary president or chairman, who will possess the authority of presiding officer only, and not that of mayor. As to appointment of a presiding officer pro tempore, see Keith V. City of Covington, 109 Ky. 781, 60 S. W. 709, 22 Ky. Law Rep. 1414. See, also, People v. Brush, 83 Hun, 613, 31 N. Y. Supp. 586 ; Truman v. Board of Supervisors, 110 Cal. 128, 42 Pac. 421; Saleno v. City of Neosho, 127 Mo. 627, 30 S. W. 190, 27 L. R. A. 769, 48 Am. St. Rep. 653; Cline v. Seattle, 13 Wash. 444, 43 Pac. 367. 22 Ex parte Mirande, 73 Cal. 365, 14 Pac. 888; PEOPLE v. BATCHELOR, 22 N. Y. 128; Warner v. Mower, 11 Vt. 385. 23 State V, Smith, 22 Minn. 218; Chosen Freeholders of Hudson County V. State, 24 N. J. Law, 718; Ex parte Wolf, 14 Neb. 24, 14 N. W. 660. A meeting of a city council, at which less than a quorum was present, adjomned to a future day, at which time another adjourn- ment was had. Held that, though the first adjournment was ineg- ular because of the absence of a quorum, it would be presumed that a quorum was present at the second meeting, and that a reg- ular adjournment was then had. Moore v. Perry, 119 Iowa, 423, 93 N. W. 510. 24 State V. Smith, 22 Minn. 218; Borough of Avoca v. Railway Co., 7 Kulp (Pa.) 470; Magneau v. Fremont, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 7S6, 27 Am. St. Rep. 436. § 71) MEETINGS. ii23 Mode of Proceeding. When a corporate meeting is duly convened and organized, its mode of procedure, wherein not otherwise expressly pre- scribed by statute, charter, or by-law, is in accordance with the general rules governing parliamentary bodies in America.^ ^ The ayes and noes may be called upon any vote not taken by ballot; ^^ the presence of a quorum is necessary at every vote of the council ; ^" no measure can be carried except by af- firmative vote of a majority of all present;^* action taken may be rescinded at any time before the rights of third parties have vested thereunder ; ^® the board may rely and take ac- tion upon reports of its committees without further investiga- tion;^" and generally such course of procedure may be fol- 26 1 Dill. Mun. Corp. § 288. 2« Hicks V. Comniissinners (N. J. Err. & App.) 55 Atl. 250. 27 State V. Vanosdal, 131 Ind. 388, 31 N. E. 79, 15 L. R. A. 832: City of Oakland v. Carpentier, 13 Cal. 540; Buell v. Buckingham. 1P> Iowa, 284, 85 Am. Dec. 516; Brown v. District of Columbia, 127 U. S. 579, 8 Sup. Ct. 1314, 32 L. Ed. 262; CITY OF BALTIMORE V. POULTNEY, 25 Md. 18; DEY v. JERSEY CITY, 19 N. J. Eq. 412; Ferguson v. Chittenden County, 6 Ark. 479; Rushville Gas Co. V. Rushville, 121 Ind. 206, 23 N. B. 72, 6 L. R. A. 315, 16 Am. St. Rep. 388; Barnert v. Mayor, 48 N. J. Law, 395, 6 Atl. 15; Heis- kell V. Baltimore, 65 Md. 125, 4 Atl. 116, 57 Am. Rep. 308. 2 8 Labourdette v. Municipality, 2 La. Ann. 527; 1 Dill. Mun. Corp. § 282; LAWRENCE v. INGERSOLL, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308. 17 Am. St. Rep. 870; State v. Priester, 43 Minn. 373. 45 N. W. 712. A resolution of a city council, not adopted by a majority of the whole number of the council, as required by statute, is void. Cascaden v. Waterloo, 106 Iowa, 673, 77 N. W. 333. 29 State V. Hoyt, 2 Or. 246; Reiff v. Conner, 10 Ark. 241; Sank v. Philadelphia, 4 Brewst. (Pa.) 133; State v. Foster, 7 N. J. Law. 101; State v. Barbour, 53 Conn. 76, 22 Atl. 686, 55 Am. Rep. 65. 30 Dorey v. Boston, 146 Mass. 336, 15 N. E. 897; Main v. Ft. Smith, 49 Ark. 480, 5 S. W. 801; Bissell v. Jeffersonville, 24 How. (U. S.) 287, 16 L. Ed. 664; Salmon v. Haynes. 50 N. J. Law, 97. 11 Atl. 151. A municipal council has the absolute right to make and unmake its own committees by a majority vote. Dreyfus v. Lou- ergan, 73 Mo. App, 336. 224 PROCEEDINGS AND ORDINANCES. (Ch. 10 lowed as is proper in legislative bodies under parliamentary law.^^ De Facto Council. A council composed of de facto members in whole or in part may lawfully transact the corporate business.^ ^ It is, of course, essential that there should be de jure offices.^^ No corporate business can be transacted except by a body created by law and organized thereunder.^* If, therefore, under a mistaken supposition that a new general statute providing for a new governing body applies to a certain corporation, such new body is elected and organized, and proceeds to transact the corporate business in lieu of the lawful body, its acts are 81 1 Dill. Mud. Corp. § 288. Tied. Mun. Corp. § 98, But standing I'ules of council, and mere rules of parliamentary law, not enjoined by statute, may be abolished, modified, or waived at the will of the council making them. In re Broad St., 9 Kulp (Pa.) 37; Simmerman V. Wildwood, GO N. J. Law, 3G7, 40 Atl. 1132; Whitney v. Hudson, ()9 Mich. 189, 37 N. W. 184. 32 Trustees of Vernon Soc. v. Hills, 6 Cow. (N. Y.) 23, 16 Am. Dec. 429: Town of Decorah v. Bullis, 25 Iowa, 12; Koontz v. Bui- :;ess, 64 Md. 134, 20 Atl. 1039; Williams v. School Dist, 21 Pick. (Mass.) 75, 32 Am. Dec. 243; Cochran v. McCIeary, 22 Iowa, 75; Scoville V. Cleveland, 1 Ohio St. 126; Pritchett v. People, 1 Oilman (111.) 529; Lockhart v. Troy, 48 Ala. 579; Laver v. McGlachliu, 28 Wis. 364; Pence v. Frankfort, 101 Ky. 534, 41 S. W. 1011; Kirker V. Cincinnati, 48 Ohio St. 507, 27 N. E. 898; Ensley v. Nashville, 2 Baxt. (Tenn.) 144 ; Roche v. Jones, 87 Va. 484, 12 S. E. 965 ; Dean V. Gleason, 16 Wis. 1; State v. Goowin, 69 Tex. 55, 5 S. W. 678; Dugan V. Farrier, 47 N. J. Law, 383, 1 Atl. 751; Butler v. Walker, i)8 Ala. 358, 13 South. 261, 39 Am. St. Rep. 61; State v. Gray, 23 Neb. 365, 36 N. W. 577. 38 NORTON v. SHELBY COUNTY, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176; Welch v. St. Genevieve, 1 Dill. (U. S.) 130, Fed. Cas. No. 17,372; Town of Decorah v. Bullis, 25 Iowa, 12; Hildreth's Heirs v. Mclntire's Devisee, 1 J. J. Marsh. (Ky.) 206, 19 Am. Dec. 61. But see Roche v. Jones, 87 Va. 484, 12 S. E. 965. 84 Dabney v. Hudson, 68 Miss. 292, 8 South. 545. 24 Am. St Rep. 276; Burt v. Railroad Co., 31 Minn. 472, 18 N. W. 285. § 71) MEETINGS. 225 void.'* They lack the essentials of valid law ^^ establishing de jure offices in the corporation to give them a de facto standing. But when there is a de jure council or governing body, the persons actually composing it and transacting its business constitute a de facto organization whose transactions are valid and binding.^^ A conflict between two rival bodies claiming the corporate powers is properly the subject of ad- judication in a quo warranto proceeding;'^ but it has been held that persons unlawfully claiming to exercise the powers of municipal corporations may properly be enjoined in a chan- cery proceeding brought by lawful claimants of the offices.'" Special Regulations. It is to be understood, of course, that the proceedings of a municipal corporation are the proper subject of statutory reg- ulation, and in many cases also of municipal ordinance. *° Usu- ally, indeed, the charter prescribes the governing body, the qualifications and functions of its members, the powers of the 3 5 NORTON V. SHELBY COUNTY. 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; People v. Hecht, 105 Cal. G21, 38 Pac. 941, 27 L. R. A. 203, 45 Am. St. Rep. 96. But see Roche v. Jones, 87 Va. 484, 12 S. E. 965. 3 6 Clark. Corp. c. 3, pp. S(i, 92. 3 7 Trustees of Vernon Soc. v. Hills, 6 Cow. (N. Y.) 23, 16 Am. Dec. 429; Carland v. Custer County, 5 Mont. 579, 6 Pac. 24: Roche V. Jones, 87 Va. 484, 12 S. E. 965; State v. Jacobs, 17 Ohio. 143; State V. Goowin, 69 Tex. 55, 5 S. W. 678; Jewell v. Gilbert, 64 N. H. 13, 5 Atl. 80, 10 Am. St. Rep. 3.57; Dean v. Gleason. 16 Wis. 1; Enslej' V. Nashville, 2 Baxt. (Tenu.) 144; Klrker v. Cincinnati, 48 Ohio St. 507, 27 N. E. 898; Butler v. Walker, 98 Ala. 358, 13 South. 261, 39 Am. St. Rep. 61; State v. Gray, 23 Neb. 365, 36 N. W\ 577. Where one is appointed clerk of the common council by the vote of an alderman de facto, but not de jure, such appointment is valid, though the alderman be afterwards ousted by quo warranto. People V. Stevens, 5 Hill (N. Y.) 616. 38 1 Dill. Mun. Corp. §§ 202, 204. See Frey v. Michie, 68 Mich. 323. .36 N. W. 1S4: Cochran v. McCleary, 22 Iowa. 75. 3!> Kerr v. Trego, 47 Pa. 292. But see In re Sawyer, 124 U. S. 212, S Sup. Ct. 482. 31 I.. Ed. 402. *o Ante, chapter 9. Ing.Corp. — 15 228 PROCEEDINGS AND ORDINANCES. '^Ch. 10 mayor, the time and place of the meetings, the quorum, and the other matters treated of in this section.*^ In such cases these regulations by statute, charter, and ordinance are con- trolling; and whenever they are mandatory they must be pur- sued in order to give validity to the proceedings.*^ The rules of procedure given in this section, therefore, apply only wher- ever and so far as the charter, laws, and ordinances are silent. Functions Discretionary and Ministerial. Moreover, it should also be remembered that corporate pro- ceedings cannot be conducted by individual aldermen, nor even by the mayor.*^ There must be a meeting for deliberation, consultation, and corporate action.** Nor can any public pow- ers or matters of discretion be delegated by the council to others.*® They must perform in person the discretionary and *i Ante, chapter 8. 42 City of Jacksonville v. Ledwith, 26 Fla. 163, 7 South. 885, 9 L. R. A. 69, 23 Am. St. Rep. .558; Zoltnian v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; City of Terre Haute v. Lake, 43 Ind. 480; Paterson v. Barnet, 46 N. J. Law, 62; City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735. Presumption in favor of legality and regularity of meeting. Peterborough v. Lancaster, 14 N. H. 382; State v. Smith, 22 Minn. 218. 43 McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758; Strong v. Dist, of Columbia, 4 Mackey (D. C.) 242; Day v. Green, 4 Cush. (Mass.) 433; City of East St. Louis v. Wehrung, 50 111. 28. 44 Commonwealth v. Howard, 149 Pa. 302, 24 Atl. 308; City of Little Rock v. Board, 42 Ark. 152; Deichsel v. Maine, 81 Wis. 553. 51 N. W. 880; People v. Stowell, 9 Abb. N. C. (N. Y.) 456; DEY V. JERSEY CITY, 19 N. J. Eq. 412; CITY OF BALTIMORE v. POULTNEY. 25 Md. 18. 4 5 St. Louis V. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721; Minneapolis Gas Light Co. v. Minneapolis, 36 Minn. 159, 30 N. W. 450; Hydes v. Joyes, 4 Bush. (Ky.) 464, 96 Am. Dec. 311; State V. Jersey City, 25 N. J. Law, 309; City of Indianapolis v. Coke Co.. 66 Ind. 396; Thompson v. Schermerhorn. 6 N. Y. 92, 55 Am. Dec. 385; Johnston v. Macon, 62 Ga. 645; McCrowell v. Bristol. 89 Va. 652, 16 S. E. 867, 20 L. R. A. 653. In Whyte v. Nashville. 2 Swan (Tenn.) 364, a case of sidewalk assessment, it was held that a municipal corporation cannot delegate powers conferred upon § 72) CORPORATE RECORDS. 227 public duties imposed upon them.*® Purely ministerial and executive functions may be, often must be, committed to oth- ers for performance.*' CORPORATE RECORDS. 72. Minutes of the proceedings at a meeting of the council duly recorded in the books of the municipality are public records, and as such are competent evidence eitlier for or agr.i-ist the corparition, as wrell as third p3,rties, of the corporate acts and proceedings therein recorded. and to be exercised by it to a street committee. See Tomlin v. Cape May, 63 N. J. Law, 429, 44 Atl. 120!). *6 City of Kankakee v. Potter, 119 111. 324, 10 N. E. 212; Perin? Contracting & Paving Co. v. Pasadena, 110 Cal. 6, 47 Pac. 777; Hunt V. Boonville, 65 Mo. 620, 27 Am. Rep. 299; Thompson v. Scliermer- horn, supra; Birdsall v. Clark, 73 N. Y. 73, 29 Am. Rep. 105; Naegle V, Centralia, 81 111. App. 334; Matthews v. Alexandria, 68 Mo. 115, 30 Am. Rep. 776. But where special authority to dolegate this power by the legislature is given, such delegation is valid. HITCH- COCK V. GALVESTON, 96 U. S. 341. 24 L. Ed. 659. See, also, Lord V. Oconto, 47 Wis. 386, 2 N. W. 785; Davis v. Read, 65 N. Y. 566; Ould V. Richmond, 23 Grat. (Va.) 464, 14 Am. Rep. 139; Phelps V. Mayor, 112 N. Y. 216, 19 N. E. 408, 2 L. R. A. 626. 47 Whitney v. New Haven, 58 Conn. 450, 20 Atl. 666; Bullitt County V. Washer. 130 U. S. 142, 9 Sup. Ct. 499, 32 L. Ed. 885; Bis- sell V. Jeffersonville. 24 How. (U. S.) 287, 16 L. Ed. 664; HITCH- COCK V. GALVESTON, 96 U. S. 341, 24 L. Ed. 659; Damon v. Granby, 2 Pick. (Mass.) 345; Gregory v. Bridgeport, 41 Conn. 76, 19 Am. Rep. 458, where, power being expressly granted to "ordain by-laws relating to wharves," and a general authority to appoint necessary officers to carry by-laws into effect, an ordinance which appointed a superintendent of wharves, and empowered him to regulate the mooring of vessels, was held to be valid. See, also. Gilmore v. Utica, 131 N. Y. 26, 29 N. E. 841; Holland v. State, 23 Fla. 123, 1 South. 521; City of Alton v. Mulledy, 21 111. 70: State v. liauser, 63 Ind. 155; Collins v. Holyoke, 140 Mass. 298, 15 N. E. 908; Main v. Ft. Smith. 40 Ark. 480, 5 S. W. 801; Kramrath v. Albany, 53 Hun, 206, 6 N. Y. Supp. 54; Commonwealth v. Pittsburgh, 14 Pa. 177; Dorey v. Boston. 146 Mass. .336, 15 N. E. 897; City of Burling- ton V. Donnison. 42 N. J. Law, 165. 228 PROCEEDIxXGS AND ORDINANCES. (Cll. 10 The minute of council proceedings is usually kept in a rec- ord book provided for that purpose, and, having been kept by the clerk or recorder in memoranda during the meeting, is thereafter formally written upon the minute book, and, being read and approved at the ensuing meeting, is authenticated by the signature of the mayor; thereafter it cannot be changed except by the vote of the council.*^ In order to make the rec- ord conform to the books, the council, like a court of record, may at a subsequent meeting amend its record by a minute entry nunc pro tunc.*® Such correction of minutes can only be made by the body which has transacted the business; a new council cannot amend the record of its predecessor/" These minutes thus recorded and authenticated, being made of public affairs, usually have the same probative force and character as other public records.^^ Evidence Aliunde. It has been ruled in many cases that this record is not ex- clusive, but that other competent evidence may be given of corporate proceedings.^^ Such rulings are common in the New England states in regard to records of town meetings; ^'•' 48 1 Dill. Mun. Corp. § 297. A failure of a city to comply with a charter provision that the ordinance shall be recorded does not render the ordinance void, the provision being merely directory. Allen V. Davenport, 107 Iowa, 90, 77 N. W. 532. 48 Becker v. Henderson, 100 Ky. 450, 38 S. W. 857; Everett v. Deal, 148 Ind. 90, 47 N. E. 219; Pontiac v. Oxford, 49 Micb. tit). 12 N. W. 914; Maybew v. Gay Head Dist, 13 Allen CNIass.) 12!): Commissioners' Court of Lowndes County v. Heai'ne, 59 Ala. 371 ; Kyder's Estate v. Alton, 175 111. 94, 51 N. E. 821. 50 City of Covington v. Ludlow, 1 Mete. (Ky.) 295; Howeth v. Jersey City, 30 N. J. Law, 93; Graham v. Carondelet, 33 Mo. 2G2. 51 Ryder's Estate v. Alton, 175 111. 94, 51 N. E. 821; Moore v. .lonesboro, 107 Ga. 704, 33 S. E. 435; City of Pittsburg v. Cluley, 74 Pa. 2(52; Wild v. Deig, 43 Ind. 455, 13 Am. Rep. 399; Taylor v. Henry, 2 Pick. (Mass.) 403; People v. Ihnken, 129 Mich. 46G, 89 N. W. 72. 5 2 State V. Kennedy, G9 Conn. 220, 37 Atl. 503; City of Indianapolis V. Imberry, 17 Ind. 175; Darlington v. Commonwealth, 41 Pa. 68. " 1 Dill. Mun. Corp. §§ 294-296. § 72) CORPORATE RECORDS. 229 but these cases cannot be regarded as precedents for the mu- nicipal record because of the widely different modes of pro- ceeding and the lack of means of corporate authentication.^* The Supreme Court of the United States has ruled that the acts of a corporation may be proved otherwise than by its rec- ords or written documents, even though it was its duty to keep a fair and regular record of its proceedings.^^ The rights of creditors or of third parties are not to be prejudiced by the neglect of the council to keep proper minutes.^® The acts and proceedings of the corporation may be proven by any com- petent evidence aliunde the record kept by it in cases where corporate obligation and liability are involved.^'' Rigid rules of evidence have often been relaxed on a showing that mu- nicipal records have been carelessly and imperfectly kept ; and the decisions in regard to varying, altering, and amending such records are not uniform.^® Inspection. The right of members of a municipal corporation to inspect the corporate records has been strictly upheld by the courts, and fewer restrictions laid upon it than in case of private corporations.^^ Any inhabitant or taxpayer has been held en- titled to inspect the record of the corporate proceedings, and to have a copy thereof on payment of the usual fee.*" This right has also been extended to the other corporate records, . 5 4 Ante, § 29. 5 5 Bank of United States v. Dandridge, 12 Wheat. (U. S.) 64, 6 L. Ed. 552. 5 6 School Dist. No. 2 v. Clark, 90 Mich. 435, 51 N. W. 529; City of San Antonio v. Lewis, 9 Tex. 69; Bigelow v. Perth Amboy, 25 N. J. Law, 297. B7 Hutchinson v. Pratt, 11 Vt. 402; Langsdale v. Bonton, 12 Ind. 467. See Barr v. New Brunswick. 58 N. J. Law, 255, 33 Atl. 477. 58 Westerhaven v. Clive, 5 Ohio, 136; Athearn v. District, 33 Iowa, 105; Rosa v. Madison, 1 Ind. 281. 48 Am. Dec. 361; Trustees of Hazelgreen v. McXabb, 23 Ky. Law Rep. 811, 64 S. W. 431. 59 1 Dill. Mun. Cor:\ § 303. «o People V. Walker, 9 Mich. 328. 230 PKOCEEDINGS A\D ORDINANCES. (Ch. 10 such as treasurer's and comptroller's books of account, tax- books, and voting lists. ®^ Other persons also, having an inter- est under these proceedings or in these accounts, are likewise entitled to inspection and copy.*'' ORDINAXCES. 73. An ordinance is a by-lavir of a municipality, enacted by tlie council or governing body as a local law prescribing a general and permanent rule for persons or tbings witbin tbe corporate boundaries. "By-law" is the general term applicable to the self-adopted rules of all classes of corporations ; "ordinance" is used to de- scribe the self-governing rule of a municipality.®^ It is not so comprehensive as "regulation" and is more solemn and formal than "resolution." ** "Ordinance" is a continuing regulation, while "resolution," though sometimes held to enact a law, is usually declared not to be the equivalent of an ordinance, but rather an act of a temporary character, not prescribing a permanent rule of government.^ ^ A resolution is the appro- priate form of corporate action for the removal of an officer, the acceptance of a dedication, the levying of a tax for a spe- cific purpose, the purchase of corporate property, the making of corporate contracts, and the ratification of acts of agents, and the like.®* The authority of the legislature to delegate to «i People V. Cornell, 47 Barb. (N. Y.) 329, 82 Grant, Corporations. § 311. 63 Commonwealth v. Turner, 1 Cush. (Mass.) 493; Citizens' Gas & Mining Co. v. Elwood, 114 Ind. 332, 16 N. E. 624. 64 BLANCHARD v. BISSELL, 11 Ohio St. 96; Taylor v. Lam- bertville, 43 N. J. Eq. 107, 10 Atl. 809. 65 Butler V. Passaic, 44 N. J. Law, 171; Merchants' Union Barb Wire Co. v. Railway Co., 70 Iowa, 105, 28 N. W. 494; Newman v. Emporia, 32 Kan. 456, 4 Pae. 815. 6 6 Egan V. Chicago, 5 111. App. 70; Indianapolis v. Imberry, 17 Ind. 175; Sower v. Philadelphia, 35 Pa. 231; Illinois Trust & Sav. Bank v. Arkansas City, 76 Fed. 271, 22 0. C. ▲. 171, S4 L. B. A. 518; § 74) MODE OF ENACTMENT. 231 a municipal corporation this power of local legislation as to public affairs affecting the municipality, though challenged often and in nearly all the states, has been uniformly upheld by the courts, and must be regarded as settled law.*' MODE OF ENACTMENT. 74. "WTiere tlie charter, or the general law, prescribes the pro- cedure for the euactiueiit of ordinances, it must be complied vtrith, else the ordinance is void. For example, if the law requires that the ordinance shall be read at three different meetings before final passage, such pro- vision is mandatory and essential to a valid ordinance ; but the reading may be at a special or adjourned meeting; *^ and in one case it was held that the statute was complied with by a reading at one meeting by title merely,®^ and in another it was ruled that a new council, on a single reading before it, may pass an ordinance twice read before its predecessor.''" Where no mode is prescribed by law for enacting ordinances, Cape Girardeau v, Fougeu, 30 Mo. App. 551; Central R. Co. v. Elizabeth, 35 N. J. Law, 359; Atchison Board of Education v. De Kay, 148 U. S. 591, 13 Sup. Ct. 706, 37 L. Ed. 573. 87 Des Moines Gas Co. v. Des Moines, 44 Iowa, 508, 24 Am. Rep. 756; State v. Tryon, 39 Conn. 183; Mason v. Shawneetown, 77 111. 533; City of Duluth v. Krupp, 46 Minn. 435. 49 N. W. 235; State V. Hayes, 61 N. H. 314; Markle v. Town Council, 14 Ohio, 586; Ex parte Christensen, 85 Cal. 208, 24 Pac 747; Village of Gloversville V. Howell, 70 N. Y. 287; Batsel v. Blaine (Tex. App.) 15 S. W. 283; State V. Anderson, 26 Fla. 240, 8 South. 1 ; Trenton Horse R. Co. t. Trenton, 53 N. J. Law, 132, 20 Atl. 1070, 11 L. R. A. 410; City of Indianapolis v. Gaslight Co., 66 Ind. 396 ; Same v. Trust Co., 140 Ind. 107, 39 N. E. 433, 27 L. R, A. 514, 49 Am. St. Rep. 183; Perdue v. Ellis, 18 Ga. 586 ; Trigally v. Memphis, 6 Cold. (Tenn.) 382 ; Metcalf V. St Louis. 11 Mo. lO.*?; Heland v. Lowell, 3 Allen (Mass.) 407. 81 Am. Dec. 670; Village of St. Johnsbury v. Thompson, 59 Vt 300, 9 Atl. 571, 59 Am. Rep. 731. «8 Cutcomp V. Utt, 60 Iowa, 156, 4 N. W. 214. «» Anderson v. Camden, 58 N. J. Law, 515, 33 Atl. 84fl. 1* McGraw T. Whitson, 69 Iowa, 348, 28 N. W. 632. 232 PROCEEDINGS AND ORDINANCES. (Ch. 10 the council may prescribe the mode by its own rules of order, or by ordinance; or, lacking- either of these regulations, it may proceed in accordance with parliamentary law.'^ Form — Record — Veto. An ordinance should have the form of legislation, but this is not essential to its validityj^ The appropriate form of an ordinance is, "Be it ordained by the common council," etc. ; but acts of the common council are interpreted by the courts in accordance with their manifest purpose and subject-matter; wherefore, it has been held that a formal resolution was an ordinance, when it prescribed a permanent rule of action and was passed in the mode required for ordinances.''^ And so of any other action taken by the common council with due deliberation, expressing its legislative intention and authority. The ordinance must be duly recorded, and, if executive ap- proval is required, must receive the formal indorsement of the mayor.'* If, however, formal approval be not required, and Ti Swindell v. State, 143 Ind. 153, 42 N. E, 528, 35 L. R. A. 50; Swift V. People, 162 III. 534, 44 N. E. 528, 33 L. R. A. 470; Butler V. Passaic, 44 N. J. Law, 171; First Municipality v. Cutting, 4 La. Ann. 336; Robinson v. Franklin, 1 Humph. (Tenn.) 156, 34 Am. Dec. 625; McGavock v. Omaha, 40 Neb. 64, 58 N. W. 543. 72 Rumsey Mfg. Co. v. Sehell City, 21 Mo. App. 175. An ordaining or enacting clause is not essential to the validity of an ordinance, even though prescribed by the municipal charter. Chicago & E. I. R. Co. V. Hines, 82 111. App. 488. 7 8 City of Rockville v. Merchant, 60 Mo. App. 365; Town of Lis- bon V. Clark, 18 N. H. 234; People v. Murray, 57 Mich. 396, 24 N. W. 118; City of Delphi v. Evans, 36 Ind. 90, 10 Am. Rep. 12; Merchants' Union Barb Wire Co. v. Railway Co., 70 Iowa, 105, 28 X. W. 494; Sower v. Philadelphia, 35 Pa. 231; San Francisco Gas Co. V. San Francisco, 6 Cal. 190; City of Green Bay v. Branns, 50 Wis. 204, 6 N. W. 503; Gleason v. Barnett, 22 Ky, Law Rep. 1660, 61 S. W. 20. 7 4 City of Central v. Sears, 2 Colo. 588; Ladd v. East Portland. 18 Or. 87, 22 Pac. 533; Kepner v. Commonwealth, 40 Pa. 124; Reilly V. Racine, 51 Wis. 526, 8 N. W. 417: New York & N. E. R. Co. v. Waterbury, 55 Conn. 19, 10 Atl. 162; Whitney v. Port Huron, 88 § 74) MODE OF ENACTMENT. 333 the mayor is given the veto power, his assent will be presumed from failure to veto within the time prescribed.'^ When an ordinance is vetoed, the council may reconsider it, but only once, and within a prescribed limit of time.''* An ordinance passed over the veto requires no further act of the mayor/ ^ Publication. It is the general, and ought to be the universal, law that no ordinance shall take effect until duly published ; but in some states the Draconian precedent seems to be recognized, and it has been held that provisions for publication were directory only.'^* The general doctrine, however, is that such provisions are mandatory, and in favor of personal right and liberty they Mich. 268, 50 N. W. 316. 26 Am. St. Rep. 291; Ashley v. Newark, 25 N. J. Law, 399; Padavano v. Fagan, 66 N. J. Law, 167, 48 Atl. 998; Landes v. State, 160 Ind. 479, 67 N. E. 189; City of Erie v. Bier, 10 Pa. Super. Ct. 381. 7 5 Saleno v. Neosho, 127 Mo. 627, 30 S. W. 190, 27 L. R. A. 769, 48 Am. St. Rep. 653; State v. Henderson, 38 Ohio St. 644; Martin- dale V. Palmer, 52 Ind. 411. -' .■ck V. Rochester (Sup.) 3 N. Y. Supp. 873; Sank v. Philadel- phia, 8 Phila. (Pa.) 118. 7 7 Ashton V. Rochester, 60 Hun, 372, 14 N. Y. Supp. 855. But where a I'esolution was vetoed by the mayor and returned to the council, who altered it to meet one of the objections set out in the veto, and again passed it, the resolution as last passed could not become effective until again submitted to the mayor for his approval, since by the alteration it became a new resolution. Padavano v. Fagan, 66 N. J. Law, 167, 48 Atl. 998. 7 8 gchwartz v. Oshkosh, 55 Wis. 490, 13 N. W. 450; Barnett v. Newark, 28 111. 62; City of Napa v. Easterby, 61 Cal. 509; Id., 70 Cal. 222, 18 Pac. 2.53; Meyer v. Fromm, 108 Ind. 208, 9 N. B. 84; Wain's Heirs v. Philadelphia. 99 Pa. 330; Higley v. Bunce, 10 Conn. 567. But see Commonwealth v. McCafferty, 145 Mass. 384, 14 \. E. 451; City of Sacramento v. Dillman, 102 Cal. 107, 36 Pac- 385: Elmentlorf v. Mayor, 25 Wend. (N. Y.) 693; Reed v. City of Louis- ville, 22 Ky. Law Rep. 1(;3;), 61 S. W. 11; City of Central v. Soars. 2 Colo. 588; Rutgers College Athletic Ass'n v. New Brunswick, 55 N. J. Law, 270. 20 Atl. 87; Rumsey Mfg. Co. v. Schell City, 21 Mo. App. 175; Town of Stillwater v. Moor (Okl.) 33 Pac. 1024. 2S4 PBOCEEDINGS AND ORDINANCES. (Ch. 10 are strictly construed ; so that actual notice has been held not sufficient without publication. '^^ The publication must be, of course, in the manner and to the extent prescribed in the stat- ute. ^° If not particularly prescribed, then it may be by print- ing in newspapers, according to the American usage, or by posting in public places, according to the practice of Conti- nental Europe. But the pul^lication must be reasonably sufifi- cient to convey information to the inhabitants of the corpora- tion.^^ £JSSi::NTIAIiS OF VALID ORDINANCE. 75. An ordinance may be void not only for xcrant of corporate poxsrer to enact it, or for the failure to observe tbe prescribed procedure essential to its validity, but also because it is contrary to certain Avell-establisbed doc- trines of the laAV in regard to sueli regulations, chief of TO^liicb are that a municipal ordinance, in order to be valid — (a) Must not contravene constitution or statute. (b) Must not be oppressive. 79 National Bank of Commerce v. Greneda (C. C) 44 Fed. 262: O'Hara v. Park River, 1 N. D. 279, 47 N. W. 380. An ordinance- requiring a municipal ordinance to be published for a stated time, with a notice of the time of its consideration, is mandatory. Her- man V. City of Oconto, 100 Wis. 391, 76 N. W. 364. 80 Meyer v. Fromm, 108 Ind. 208, 9 N. E. 84; City of Napa v. Easterby, 61 Cal. 509; Id., 76 Cal. 222, 18 Pac. 253; Schwartz v. Oshkosh, 55 Wis. 490. 13 N. W. 450; Ex parte Christensen, 85 Cal. 208. 24 Pac. 747; Wain's Heirs v. Philadelphia, 99 Pa. 330; City of Chicago V. McCoy, 136 111. 344, 26 N. E. 363, 11 L. R. A. 413; De Loge V. New York Cent. & H. R. R. Co., 157 N. Y. 688, 51 N. E. 1090. Publication of a city ordinance in an extra edition of a daily newspaper, and the distribution of 50 to 100 copies of such edition by parties interested in the ordinance, is not a publication in a newspaper of general circulation. State v. Bridge Co., 113 Iowa, 30, 84 N. W. 983, 52 L. R. A. 315, 86 Am. St. Rep. 357. 81 Kimble v. Peoria, 140 111. 157, 29 N. E. 723. As to publication, on Sunday, see Mayor, etc., of Knoxville v. Knoxville Water Co.^ 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888. § 75) ESSENTIALS OF VALID OEDINANCB. 235 (c) Mnst be impartial, fair, and general. (d) Must not proliibit, but may regulate, trade. (e) Must not contravene common right. (f) Must be consistent witli public policy. (g) Must not be unreasonable. The power of municipal legislation must, of course, be con- ferred by the state, and is usually found in the municipal char- ter. This has already received consideration,^^ and it scarcely need be said that the municipality cannot extend or enlarge its charter powers by its own ordinances.^ ^ These acts must be within the express or implied powers of the corporation, and they must be enacted according to the legislative mandate, otherwise they will be void,^* They may be good in part and bad in part, provided these parts are so distinctly separable that the good can stand alone. ®^ So, too, they may be valid as to certain persons or things, and invalid as to others.^* 8 2 Ante, § 52. 83 People V. Armstrong. 73 Mich. 288, 41 N. W. 275, 2 L. R. A. 721, 16 Am. St. Rep. 578; State v. Nasbyille, 15 Lea (Tenn.) 697, 54 Am. Rep. 427; Thompson v. Carroll, 22 How. (U. S.) 422, 16 L. Ed. 387; Commonwealth v. Roy, 140 Mass. 432, 4 N. E. 814; Mays v. Cincinnati, 1 Ohio St. 268; Garden City v. Abbott, 34 Kan. 283, 8 Pac. 473. A charter is the organic law of the municipality, and an ordinance in conflict therewith is void. Kemp v. Monett, 95 Mo. App. 452. G9 S. W. 31. 84 Rau V. Little Rock, 34 Ark. 303; Miller v. Burch, 32 Tex. 208, 5 Am. Rep. 242; Mayor, etc., of City of Savannah v. Hussey, 21 Ga. 80, 68 Am. Dec. 452; State v. Kantler, 33 Minn. 69, 21 N. W. 856; Pike v. Megoun, 44 Mo. 491; Anne Arundel County Com'rs V. Duckett, 20 Md. 468, 83 Am. Dec. 557; Borough of Freeport V. Marks, 59 Pa. 257; Paine v. Boston, 124 Mass. 486; Jones v. Loving. 55 Miss. 109, 30 Am. Rep. 508; Baker v. State, 27 Ind. 485; Villavaso v. Bartbet, 39 La. Ann. 247. 1 South. 599. 86 State V. Cantieny, 34 Minn. 1, 24 N. W. 458: State v. Clarke, 86 Kettering v. Jacksonville, 50 III. 39; Ex parte Cowert, 92 Ala 94, 9 South. 225. See City of Danville v. Hatcher, 101 Va. 523, 44 S. E. 723. 236 PROCEEDINGS AND ORDINANCES. (Ch. 10 Motives of Members. The motives of councilmen in passing an ordinance have been held not to be the subject of judicial inquiry; ^"^ but it has also been held that an ordinance procured by fraud or bribery is invalid,^® and Judge Dillon protests that it would be disastrous to apply to its full extent to municipal ordinances the rule as to general legislation forbidding inquiry into the motives of members of Congress and legislators, "for," says he, "municipal bodies, like the directories of private corpora- tions, have too often shown themselves capable of using their powers fraudulently, for their own advantage or to the injury of others." «» Special Authority. When the legislature has granted authority to the corpora- tion to pass a particular by-law, and the by-law is in pursu- ance of and within the limits of this authority, it is the same 54 Mo. 17, 14 Am. Rep. 471; Wilcox v. Hemming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep. 625; State v. Hardy, 7 Neb. 377; Pennsyl- vania R. Co. V. Mayor, 47 N. J. Law, 286; Second Municipality of New Orleans v. Morgan, 1 La. Ann. Ill; City of Belleville v. Railway Co., 152 111. 171, 38 N. B. 584, 26 L. R. A. 681; Canova v. Williams, 41 Fla. 509, 27 South. 80; Ex parte Bizzell, 112 Ala. 210, 21 South. 371. Where one part of an ordinance is void, and another part valid, the void part cannot have the effect to render the whole ordinance void. Imes v. Railroad Co., 105 111. App. 37. Where the invalid provisions of an ordinance can be eliminated without affecting the remainder, it will not be Invalid in toto. McXulty v. Toopf, 25 Ky. Law Rep. 430, 75 S. W. 258. But where an ordinance is invalid in part, and such part is so commingled with the valid portion as to make separation impossible, it is fatally defective. Town of Kirk- wood V. Meramec Highlands Co., 94 Mo. App. 637, 68 S. W. 761. 87 Buell V. Ball, 20 Iowa, 282; Wright v. Defrees, 8 Ind. 298; Borough of Freeport v. Marks, 59 Pa. 253; Cooley, Const. Lim. pp. 186, 208; Villavaso v. Barthet, 39 La. Ann. 247, 1 South. 599; People V. Cregier, 138 111. 401, 28 N. E. 812. 8 8 STATE V. COKE CO., 18 Ohio St. 262; Davis v. Mayor, 1 Duer (N. Y.) 451 ; In re Freder'^k St., 12 Pa. Co. Ct. R. 577. 8» 1 Dill. Mun. Corp. § 31L § 75) ESSENTIALS OF VALID ORDINANCE. 237 as though the legislature had enacted the by-law, and the only objection tenable is such as would lie against the legislative act, to wit, its unconstitutionaHty. But, as we have seen in a previous chapter,®" many by-laws are enacted under a general grant of power vesting large discretion in the municipal coun- cil, and sometimes by-laws are passed under the implied in- herent power of a municipality to make by-laws. ''^ Under such conditions by-laws are often challenged as illegal because contrary to certain fixed rules of law, as illustrated in the fol- lowing instances : Contrary to Constitution or Statute. Ordinances have been declared invalid which empower pur- chasers of land at a tax sale to call upon the police to put them into possession; ^- which imposed a license upon towboats en- gaged in interstate commerce;®* which required a cotton dealer to report to the police the names of all sellers of loose cotton, with the amount purchased by him ; ®* which discrim- inate between resident and nonresident traders;®^ which do- nated the bodies of dead animals to certain third parties.®* 80 Ante, § 52. 91 City of Mt. Pleasant v. Breeze, 11 Iowa, 399; State v. Webber, 107 N. C. 962, 12 S. E. 598, 22 Am. St. Rep. 920; Collins v. Hatcli, 18 Ohio, 523, 51 Am. Dec. 465; Clark v. South Bend, 85 Ind. 276, 44 Am. Rep. 13; McPherson v. Chebause, 114 111. 46, 28 N. E. 454. 55 Am. Rep. 857. 02 Calhoun v. Fletcher, 63 Ala. 574. It deprives a citizen of prop- erty without "due process of law." 8 3 Moran v. New Orleans, 112 U, S. 69, 5 Sup. Ct. 38, 28 L. Ed. 053; Ex parte Holmquist (Cal.) 27 Pac. 1099. It contravenes fed- eral authority to "regulate commerce among the states." 94 Long V. Taxing Dist, 7 Lea (Tenn.) 134, 40 Am. Rep. 55. An unwarranted infringement on personal liberty. 9 5 Thompson v. Association, 55 N. J, Law, 507, 20 Atl. 70S; City of Indianapolis v. Bieler, 138 Ind. 30, 36 N. E. S.")7. Denies to citi2e:is of the United States tlie equal protection of the law. 9« Town of Greensboro v. Ehrenreich. 80 Ala. 579, 2 South. 725, CO Am. Rep. 130; River Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 6. No "due process of law," nor "just compensation" for pri- vate property taken. 238 PROCEEDINGS AND ORDINANCES. (Ch. 10 The foregoing ordinances were all declared repugnant to con- stitutional principles, and therefore void. So, likewise, an or- dinance contravening any public statute would be void, unless it were specially authorized by statute so plain and unmistak- able as to amount to a legislative repeal of the former statute thus contravened.*' Must not be Oppressive. The courts have not hesitated under this wholesome doctrine to invalidate mandatory ordinances which interfere with the ordinary liberty of the citizen, as, for example, an ordinance ordering the arrest, imprisonment, and punishment of a free negro found out of doors after 10 o'clock at night ;*^ one punishing any person knowingly associating with persons having the reputation of being thieves and prostitutes;*® so, one committing the right to erect and maintain a steam engine and boiler to the unbridled discretion of the mayor ; ^°° also one denying the use of water from the city waterworks to any- one who owed, or whose tenant owed, a bill for water supplied in a previous year, or to a different house ; ^°^ so, one commit- ting to an arbitrary official discretion to allow or prohibit street parades; ^'^^ also one forbidding a licensed retailer of liquors to sell between the hours of 6 p. m. and 6 a. m. ; ^°^ and like- 97 STATE V. CLAEKE, 54 Mo. 17, 14 Am. Rep. 471; Mark v. State, 97 N. T. 572; In re Snell, 58 Vt. 207, 1 Atl. 566; Cross v. Morristown, 33 N. J. Law, 57. 9 8 Mayor, etc., of City of ]Memphis v. Wiufield, 8 Humph. (Tenn.) 707. 89 City of St. Louis v. Fitz, 53 Mo. 582. 100 Mayor, etc., of Baltimore v. Radeclie, 49 Md. 217, 33 Am. Rep. 239. 101 Dayton v. Quigley, 29 N. J. Eq. 77. 102 state V. Bering, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948; In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 311. But see Commonwealth v. Davis, 162 Mass. 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389; Davis v. Alassa- chusetts, 167 U. S. 43. 17 Sup. Ct. 731, 42 L. Ed. 71. 103 Ward V. Greenevllle, 8 Baxt. (Tenn.) 228, 35 Am. Rep. 700. § 7u) ESSENTIALS OE VALID ORDINANCE. 239 wise one forbidding such sale whenever any denomination of Christian people are holding divine services.^*** Must be Impartial, Fair, and General. A regulation requiring certain water consumers to put in expensive meters under penalty of cutting off the water supply was held void for unwarranted discrimination;^"-'* so one re- quiring a certain individual named to do certain acts in respect to a building, and imposing a penalty for noncompliance, was held void ; ^°® as also one requiring particular individuals by name to construct local improvements in front of their lots; "^ so also one forbidding the repairing, altering, or rebuilding any frame building within fire limits, the cost of which should exceed three hundred dollars;^'** also one prohibiting dairies within certain designated limits without the consent of the cit) council.^*** Must not Prohibit, hut may Regulate, Trade. Under this rule an ordinance has been declared void which fixed one rate of license for selling goods which are within or in transit to the city, and another rate for goods which are not within or in transit to the city; ^^° so also one requir- ing municipal licenses from nonresidents driving interurban carriages or omnibuses into the city.^^^ And it has been held in New Jersey that whenever a by-law seeks to alter a well- settled and fundamental principle of the commion law, or to estabhsh a rule interfering with the rights of individuals or 104 Gilham v. Wells, 64 Ga. 192. See, also, State v. Strauss, 49 Md. 288. 105 Ked Star Line S. S. Co. v. Ji^rsoy City. 4r^ N. J. Law. 24G. 106 First Municipality of New Orleans v. Bliaeau, 3 Lu. Ann. OSS. 107 Wliyte V. Nashville, 2 Swan (Tonn.) 3G4. 108 First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201, 28 N. E. 434. 13 L. R. A. 481, 28 Am. St. Rep. 185. 109 STATE V. MAHNER, 43 La. Ann. 496, 9 South. 480, 110 Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642. 111 Commonwealth v. Stodder, 2 Gush. (Mass.) 562, 48 Am. Dec. 679. 240 PROCEEDINGS AND ORDINANCES. (Ch. 10 the public, the municipality must show its authority under plain and specific legislative enactment.^^* It has also been held that an ordinance, which prohibits any person bringing secondhand clothing into a city or town, or exposing it for sale therein without proof of its noninfection, is an unwar- ranted interference with trade/ ^^ Must not Contravene Common Right. Ordinances to the following eiTect have been declared in- valid as contravening common right : One imposing a license tax for selling lemonade and cake at a temporary stand on the sidewalk; ^^* one requiring a license fee of three hundred dollars from an auctioneer, two hundred dollars from butch- ers, and twenty dollars from a peddler ;^^^ one forbidding hotel runners from going within twenty feet of a railroad train, though permitted to do so by the railroad company; ^^^ and one forbidding the renting of private property to lewd women.^^^ Must be Consistent with Pnhlic Policy. Where a statute prohibited incorporated towns from sub- jecting the stray animals of nonresidents to corporate ordi- nances, a by-law visiting a penalty on the nonresident owner was held void;^^^ and also, in the same state, the ordinance of a municipal corporation with charter power to pass all by- laws deemed necessary for health, cleanlinesss, etc., and with 112 Taylor v. Griswold, 14 N. J. Law, 222, 27 Am. Dec. 33. 113 Kosciusko V. Slomberg, 68 Miss. 469, 9 South. 297, 12 L. R. A. .528, 24 Am. St. Rep. 281. 114 Burling v. West, 29 Wis. 307, 9 Am. Rep. 576. 115 City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16), 90 Am. Dec. 278; City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; Town of State Center v. Barenstein, 66 Iowa, 240, 23 X. W. 652. 116 Napman v. People, 19 Mich. 352; City of Chillicothe v. Brown. 38 Mo. App. 609; Haynes v. Cape May, 52 N. J. Law, 180* 19 Atl. 176; State v. Robinson, 42 Minn. 107, 43 N. W. 833, 6 L. R. A. 339. 117 Milliken v. Weatherford, 54 Tex. 388, 38 Am. Rep. 629. 118 Town of Marietta v. Fearing, 4 Ohio, 427. § 76) ESSENTIALS OF VALID ORDINANCE. 241 power to abate nuisances, which restrained cattle from run- ning at large, was held void as being in contravention of the general policy of the state to allow animals to run at large. ^^* And where the general statutes of the state abolished tb.e sys- tem of hay inspection, and in lieu required the sellers of hay to prepare their hay for market in a particular manner under penalty for noncompliance, a city ordinance prohibiting the sale of pressed hay without inspection was declared void as in conflict with public policy.^^" Must not be Unreasonable. This rule belongs to that class of rules whereby the judici- ary have reserved to themselves the power of doing justice in hard cases, and under it more ordinances have been challenged and more decisions made than under all the preceding rules. The decisions concur that the reasonableness of an ordinance is matter for the court, and not for the jury;^^^ and this revives Selden's objection to equity that it was "a roguish thing, having no standard but the whim or notion of the Lord Chan- cellor"; and the "length of the Chancellor's foot was the measure of equity." ^^^ But the rule has survived through many generations of lawyers and judges, and is held applica- ble to the by-laws of all classes of corporations. Under it the following ordinances have been declared to be unreasonable 119 Collins V. Hatch, 18 Ohio, 523. 51 Am. Dec. 465. Contra, Rob- erts V. Ogle, 30 111. 459, 83 Am. Dec. 201. 120 Mayor, etc., of City of New York v. Nichols, 4 Hill (N. Y.) 209. Cf. Rogers v. Jones, 1 Wend. (N. Y.) 237, 19 Am. Dec. 493. and Hoffman v. Jersey City, 34 N. J. Law, 172. 121 E^'ison V. Railway Co., 45 Minn. 370, 48 N. W. 6, 11 L. R. A. 434; Merced County v. Fleming. Ill Cal. 46, 43 Pae. 392; State V. Fourcade, 45 La. Ann. 717, 13 South. 187, 40 Am. St. Rep. 249: State V. Trenton, 53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 410; City of St. Louis v. Weber, 44 Mo. 547; Kneedler v. Norristown. 100 Pa. 308, 45 Am. Rep. 384; Hawes v. Chicago, 158 111. 653, 42 N. E. 373, 30 L, R. A. 225; Commonwealth v. Worcester, 3 Pick. (Mass.) 402. 122 Bl. Comm. p. 433, note y. Ing.Corp. — 16 24J PROCEEDINGS AND ORDINANCES. (Ch. 10 and void : An ordinance exacting a license from peddlers in the discretion of the mayor ; ^** one requiring the building of a sidewalk in an uninhabited portion of the city; ^^* requiring all peddlers to pay a license fee of two hundred dollars per month; ^^^ requiring transients to pay two hundred and fifty dollars per month, ^^' and so one requiring a license of ten dollars per day of an itinerant merchant; an ordinance for- bidding the running of street cars during the winter months without vestibules ; ^^'^ also one prohibiting laundries except in brick or stone buildings ; ^^'^ one regulating the weight of baker's bread, prohibiting the sale of loaves weighing less than one and one-half pounds; ^^° one forbidding the cover- ing of packages of fruit with colored netting ; ^'" one for- bidding to drive faster than an ordinary gait; ^^^ an ordinance exempting from license required of milkmen a dealer having not more than two cows, and delivering by hand; ^^^ also one 123 Town of State Center v. Barenstein, 66 Iowa, 249, 23 N. W. 652. 124 Corrigan v. Gage, 68 Mo. 541. 125 City of Peoria v. G;igenheim, 61 III. App. 374. 126 City of Ottumwa v. Zekind, 95 Iowa, 622, 64 N. W. 646, 29 L. R. A. 734, 58 Am. St. Rep. 447. 127 City of Yonkers v. Yonkers R. Co., 51 App. rJiv. 271, 64 N. Y. Supp. 955. 12 8 City of Shreveport v. Robinson, 51 La. Ann. 1314, 26 South. 277; Yiek Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220. Contra, In re Yick Wo, 68 Cal. 294, 9 Pac. 139, 58 Am. Rop. 12. 129 City of Buffalo v. Baking Co., 39 App. Div. 432, 57 N. Y. Supp. 347. Contra, City of Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441; Paige V. Fazackerly, 36 Barb. (N. Y.) 392; Guillotte v. New Orleans, 12 La. Ann. 432. 130 Frost V. CMcago, 178 111. 250, 52 N. E. 869, 49 L. R. A. 657, 69 Am. St. Rep. 301. 131 Kansas City v, McDonald, 60 Kan. 481, 57 Pac. 123, 45 L. R. A. 429. 132 Pierce v. Aurora, 81 111. App. 670. So, under a city charter authorizing the council to exempt any person from the operation of any ordinance or municipal regulation, an ordinance requiring a license from all milk sellers, except those who sell less than twenty § 75) ESSENTIALS OF VALID ORDINANCE. 243 requiring license of sojourning auctioneers only; ^^^ one pro- hibiting any vehicle used to carry passengers or freight for hire from standing in front of any hotel except when actually en- gaged in receiving or discharging passengers or freight; ^^* also one requiring a street car company, under penalty of twenty-five dollars, to sprinkle its track;*"* also one com- pelling the construction of a cement sidewalk in lieu of a sub- stantial plankwalk; ^^^ imposing a tax of fifty cents a pole on an electric company; ^^'^ an ordinance requiring a railway company with only one night train, passing at 8 o'clock, to keep an electric light at every street crossing from dark to dawn; *^^ one requiring railway companies to keep flagmen by day and red lanterns by night at ordinary street crossings where there was no unusual danger;*^® one prohibiting the company from moving its cars across the street for the purpose of distributing them in its yards between the hours of 6 a. m. and 11 p. m. ; **" one requiring a theater manager to pay a police officer two dollars per night for attendance at the the- quarts a day, is invalid. Gray v. Wilmington, 2 Marv. (Del.) 257, 43 Atl. 95. 133 City of Carrollton v. Bazette, 159 111. 284, 42 N. E. 837, 31 L. R. A. 522. 134 Ex parte Battis, 40 Tex. Cr. R. 112, 48 S. W. 513, 43 L. R. A. 863, 76 Am. St. Rep. 708. 13 5 City of Chester v. Traction Co., 6 Del. Co. R. (Pa.) 397, 587, 40 Wkly. Notes Cas. (Pa.) 183. But see State v. Railroad Co., 50 La. Ann. 1189, 24 South. 205, 56 L. R. A. 287. An ordinance re- quiring a street railway company to clean, between its tracks, streets occupied by it, was held not to violate the rule as to equality and uniformity of legislation. City of Chicago v. Traction Co., 199 111. 259, 65 N. E. 243, 59 L. R. A. 666. 13 « Ilawes V. Chicago, 158 111. 6-53, 42 N. E. 373. 30 L. R. A. 225. 137 City of Saginaw v. Light Co., 113 Mich. 660, 72 N. W. 6. 138 Cleveland, C, C. & St. L. Ry. Co. v. Connersville (Ind.) 46 N. E. 579, 37 L. R. A. 175, 62 Am. St. Rep. 418. 139 Toledo, W. & W. Ry. Co. v. Jacksonville, 67 III. 37, 16 Am. Rep. 61L 1*0 City of Birmingham v. Railway Co., 98 Ala. 134, 13 South. 141. -44 PROCEEDINGS AND ORDINANCES. (Ch. 10 ater to preserve order ;^*^ prohibiting any person from per- mitting drunkards or disorderly persons to assemble at his house, tavern, inn, saloon, cellar, shop, office, or other resi- dence or place of business/*^ Besides the foregoing, many of the ordinances referred to in the previous paragraphs as con- travening other rules were also declared to be unreasonable. Reasonable and Valid. On the contrary, ordinances impeached as unreasonable have been sustained as valid in the following instances : Forbidding the keeping of a livery stable in a certain locality; ^*^ shoddy or carpet cleaning in a particular neighborhood ; ^** one re- quiring itinerant dealers to pay more license fee than regular merchants;^*'' a license of peddlers exempting home pro- ducers;^*^ an ordinance prohibiting a hotel porter from so- liciting on the premises of railroad companies ; ^*'' one limit- ing the speed of trains to five miles an hour and requiring bell ringing within the city limits ; ^^^ one forbidding such amount of drum beating and horn blowing on the streets as to annoy citizens ; ^*® one requiring bicycle riders to ring a bell on ap- proaching a crosswalk; ^°° one establishing a hack stand; ^^^ one requiring a passenger on a street car to use his transfer 141 Waters v. Leach, 3 Ark. 110. 142 City of Grand Rapids v. Newton, 111 Mich. 48, 69 N. W. 84. 35 L. R. A. 226, 66 Am. St. Rep. 387; Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576. 143 City of Chicago v. Stratton, 58 111. App. 539. 144 EX PARTE LACEY, 108 Cal. 326, 41 Pac 411, 38 L. R. A. 6-10. 49 Am. St. Rep. 93. 145 Ex parte Haskell, 112 Cal. 412. 44 Pac. 725, 32 L. R. A. 527. 146 People V. Sawyer, 106 Mich. 428, 64 N. W. 333. 147 City of Laddonia v. Poor, 73 Mo. App. 465. 148 Washington Southern Ry. Co. v. Lacey, 94 Va. 460, 26 S. E. 834. See White v. Railway Co., 44 Mo. App. 540; Bluedorn v. Rail- way Co., 108 Mo. 439, 18 S. W. 1103, 32 Am. St. Rep. 615. 149 In re Gribben, 5 Okl. 379, 47 Pac. 1074. 150 City of Emporia v. Wagoner, 6 Kan. App. 659, 49 Pac. 701. 161 City Council of Montgomery v. Parker, 114 Ala. 118, 21 South. 452, 62 Am. St Rep. 95. § 75) ESSENTIALS OF VALID ORDINANCE. 245 within a time limit, and prohibiting him from selling or trans- ferring the same;^"*^ one requiring stages and other vehicles to keep off certain narrow and crowded streets;^"' one for- bidding sellers of perishable fruits from keeping their vehicles longer than twenty minutes at a stand on a public street be- tween certain hours of the day; ^^* one forbidding a hackney coach to stand within thirty feet of an entrance to a public building; ^^^ one requiring vehicles for hire to occupy desig- nated stands."' So also an ordinance regulating the handling of trains in a city is valid which forbids trains from standing across a pubUc street longer than two minutes; ^^^ or from stopping on a public street crossing except in case of emer- gency; ^^* requiring flagmen at dangerous crossings; ^^^ for- bidding strangers from getting on or off moving trains ; also ordinances requiring street railway companies to make quar- terly reports of the number of passengers carried; ^'° requir- ing them to pave the streets through which their tracks run;^®^ to provide a driver and conductor on each car.^*^ 152 Ex parte Lorenzen, 128 Cal. 431, 61 Pac. 68, 50 L. R. A. 55, 79 Am. St. Rep. 47. 153 COMMONWEALTH V. MULHALL, 162 Mass. 496, 39 N. E. 183, 44 Am. St. Rep. 387; Commonwealth v. Stodder, 2 Cush. (Mass.) 563, 48 Am. Dee. 679. 164 Common wealth v. Brooks, 109 Mass. 355. And this applies to licensed peddlers. Commonwealth v. Fenton, 139 Mass. 195, 29 N. E. 653. 155 Commonwealth v. Robertson, 5 Cush. (Mass.) 439. 156 Commonwealth v. Matthews, 122 Mass. 60. 157 City of Birmingham v. Railway Co., 98 Ala. 134, 13 South. 141. 158 City of Duluth v. Mallett, 43 Minn. 204, 45 N. W, 154. 150 Delaware, L. & W. R. Co. v. East Orange, 41 N. J. Law, 127. Contra, Ravenna v. Penna. Co., 45 Ohio St. 118, 12 N. E. 445. See Pittsburgh, C, C. & St. L. R. Co. v. Crown Point (Ind.) 4.3 N. E. 587, 35 L. R. A. 684. i«o Bearden v. Madison, 73 Ga. 184; St Louis v. Railway Co., 89 Mo. 44, 1 S. W. 305, 58 Am. Rep. 82. i«i City of Philadelphia v. Railway Co., 7 Phila. (Pa.) 321. 182 State V. Trenton, 53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 246 PROCEEDINGS AND ORDINANCES. (Ch. 10 A city may likewise regulate markets by ordinance providing that huckster wagons shall not stand in the market place for more than twenty minutes during certain hours; ^^^ that fresh beef shall not be sold in less than quarters except between dawn and 9 o'clock a. m. ; *'* that only licensed occupants of stalls shall offer meats for sale at retail.^"* Liquor Selling. And, in regard to liquor selling, ordinances have been held valid which limit the licenses to one for each one thousand of population ; ^®^ so of one which limits the district or precinct in which liquor may be sold; ^®^ which prohibits druggists from selling" except from prescription; ^** which forbids license unless assented to by two-thirds of the freeholders within a radius of three miles,^®^ or without the consent of the county officials; ^''^ so of one which requires closing of saloons at 9, 10, and 11 o'clock at night, respectively,^ ^^ and from 10:30 to 5 :00 a. m.,^'^^ and from midnight to 5:00 a. m.^'^' Sanitary and Police. So also ordinances have been sustained which require lot owners to clean the snow from the sidewalk; ^^* that require 410; SOUTH COVINGTON & C. ST. RY. CO. v. BERRY, 93 Ky. 43, 18 S. W. 1026, 15 L. R. A. 604, 40 Am. St. Rep. 161. 163 Commonwealth v. Brooks, 109 Mass. 355; Commonwealtli v. Penton, 139 Mass. 195, 29 N. E. 653. 164 City of Bowling Green v. Carson, 10 Bush (Ky.) 64. 165 CITY OP ST. LOUIS v. WEBER, 44 Mo. 547. 166 Decie v. Brown, 167 Mass. 290, 45 N. E. 765. 16 7 In re Wilson, 32 Minn. 145, 19 N. W. 723; State v. Clark, 28 N. H. 176, 61 Am. Dec. 611. 168 Provo City v. Shurtliff, 4 Utah, 15, 5 Pac. 302. 169 Metcalf V. State, 76 Ga. 308. 170 State V. Hellman, 56 Conn. 190, 14 Atl. 806; Wagner v. Town of Garrett, 118 Ind. 114, 20 N. E. 706. 171 Smith V. Knoxville, 3 Head (Tenn.) 245; Staates v. Washington, 44 N. J. Law, 605, 43 Am. Rep. 402; Decker v. Sergeant, 125 Ind. 404, 25 N. E. 458. 172 State V. Welch, 36 Conn. 215. 178 Brighton v. Toronto, 12 U. C. 433. 174 Goddard's Case. 16 Pick. (Mass.) 504, 28 Am. Dec. 259. Contra, i § 75) ESSENTIALS OF VALID ORDINANCE. 247 restaurants to close at 10 o'clock at night; ^'^ that require keepers of hotels, restaurants, and boarding houses to report the names of lodgers or boarders, and pawnbrokers to report property received, and description of persons delivering the same,^^® and which prohibit them from purchasing the articles pawned.^ ^^ Also ordinances requiring garbage to be removed in a closed vehicle labeled "Garbage"; ^^* and one requiring a lot owner to remove filth from a private way adjoining his land; ^'^^ also one cutting off gas and water from consumers delinquent for 10 days/*" Discordant Ridings. It will be noted from the foregoing cases that the deci- sions are not harmonious on this topic. What is reasonable in one city is unreasonable in another ; and what seems reasonable to one court appears unreasonable to another, the decisions varying no doubt in accordance with the character of the city, the usages of the locality, the civic and municipal standards of the population, and the temperament of the judges. Recent and present tendencies are obviously towards stricter regulation and stronger presumption of the reasonable- ness of ordinances. Gridley v. Bloomington, 88 111. 554, 30 Am. Rep. 566; City of Chicago V. O'Brien, 111 111. 532, 53 Am. Rep. 640. See, also, Flyun v. Canton Co., 40 Md. 312, 17 Am. Rep. 603. 17 5 state V. Freeman, 38 N. H. 426. 176 City of Topeka v. Boutwell, 53 Kan. 20, 35 Pac. 819. 27 L. R. A. 593; Kansas City v. Gamier, 57 Kan. 412, 46 Pac. 707. See City of Grand Rapids v. Brandy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472. 17 7 Kuhn V. Chicago, 30 111. App. 203. 178 People V. Gordon, 81 Mich. 306, 45 N. W. 658, 21 Am. St. Rep. 524. 170 Commonwealth v. Cutter, 156 Mass. 52, 29 N. B. 1146. 180 Coaimoii wealth v. Philadelphia, 132 Pa. 288, 19 Atl. 136. 248 PBOCEEDINGS AND ORDINANCES. (Cll. 10 FINES AXD PENALTIES. 76. A penalty is an essential part of an ordinance, and a cor- poration having authority to enact an ordinance has the implied pow^er to impose a fine as a penalty; but the po\per of imprisonment or forfeiture must be ex- pressly conferred by the legislature upon the munici- pality. This doctrine of the common law has been generally recog- nized and enforced by the courts in America, but further than this the decisions are not in harmony, except that the fine may be recovered by a civil action.^ ®^ The statutes of the various states are not uniform, and it is difficult to formulate any gen- eral rules in regard to the penalty of an ordinance. Imprisonment and Forfeiture. Whether imprisonment may be used as a means of coercing payment of a fine, whether labor may be imposed as part of the sentence, whether the costs stand upon the same basis with fines, are questions on which the courts do not agree; but there seems to be general concurrence in the view that impris- onment for nonpayment of a fine, though recovered in an ac- tion for debt, is not imprisonment for debt;^*^ and also that costs and fines stand upon the same basis.^^' It has likewise been generally held that the particular penalty imposed must be expressly authorized by the legislature or it will be void ; and that consequently, under a statute authorizing fine or im- prisonment, imprisonment could not be used to enforce pay- 131 Coates V. Mayor, 7 Cow. (N. Y.) 585; Bwbanks v. President, etc., 36 111. 178; In re Jones, 90 Mo. App. 318; City of De Soto V. Brown, 44 Mo. App. 148; In re Miller, 44 Mo. App. 125. 182 Hardenbrook v. Ligonier, 95 Ind. 70; Caldwell v. State, 55 Ala. 133; Hibbard v. Clark, 56 N. H. 155, 22 Am. Rep. 442; In re Miller, 44 Mo. App. 125. 183 Horr & B. Mun. Ord. § 203. Contra, State ▼. Gantieny, 84 Minn. 1, 24 N. W. 458. I § 77) PROCEDURE. 249 ment of a fine; *** nor could forfeiture be adjudged as a pen- alty without due notice or process.^ ®^ Some courts hold that a fine must be fixed in amount by the terms of the ordi- nance/*® while others have sustained as valid an ordinance giving the court some measure of discretion.^*' PROCEDURE. 77. The nature and form of complaint, evidence, and trial for violation of mnnicipal ordinances are so varied in tlie several states by constitutions, statutes, and decisions therein as to be regarded as matters of local rather than of general law, and therefore are not snsoeptible of general statement and treatment. i«4Brieswick v, Brunswick, 51 Ga. 639, 21 Am. Rep. 240. See Ex parte Rosenheim, 23 Pac. 372, 83 Cal. 390; Ex parte Green, 94 Cal. 387, 29 Pac. 783; Ex parte Smith (Cal.) 29 Pac. 785. Also Lewis V. Forehand, 117 Ga. 798, 45 S. E. 68. 18B Rose V. Hardie, 98 N. C. 44, 4 S. E. 41; Ft. Smith v. Dodson, 46 Ark, 296, 55 Am. Rep. 589; Donovan v. Vicksburg, 29 Miss. 247. 64 Am. Dec. 143; Gosselink v. Campbell, 4 Iowa, 296; Moore v. State, 11 Lea (Tenn.) 35; Darst v. People, 51 111. 286, 2 Am. Rep. 201; Hanscom v. Burmood, 35 Neb. 504, 53 N. W. 371; Spitler v. Young, 63 Mo. 42; Gilchrist v. Schmidling, 12 Kan. 263; McKee v. McKee, 8 B. Mon. (Ky.) 433; Bowers v. Horen, 93 Mich. 420, 53 N. W. 535, 17 L. R. A. 773, 32 Am. St. Rep. 513. That part of an ordinance which provides that a city street commissioner may sell a vessel or its loading, which, having been sunk in the channel of the river within the city's jurisdiction, is removed as an obstruction, is Invalid as being in excess of the amount named in the act permitting the city to enforce its ordinances by fines and penalties, as it creates a forfeiture. Coonley v. Albany, 132 N. Y. 145, 30 N. E. 382. 188 state V. Worth, 95 N. C. 615; In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; Slocum v. Ocean Grove, 59 N. J. Law, 110, 35 Atl. 794; Bowman v. St. John, 43 111. 337. See, also, Landis V. Vlneland, 54 N. .1. Law, 75, 23 Atl. 357. i«T Atkins V. Phillips, 26 Fla. 281, 8 South. 429, 10 L. R. A. 158; Bills V. Goshen, 117 Ind. 221, 20 N. E. 115, 3 L. R. A. 261; Town of Huntsville v. Phelps, 27 Ala. 55; State v. Cainan, 94 N. C. 880; City of Keokuk v. Dressell, 47 Iowa, 597; State v. Cantleny, 34 Minn. 1, 24 N. W. 468; State v. Carpenter, 60 CJonn. 97. 22 Atl. 497. 250 PROCEEDINGS AND ORDINANCES. (Ch. 10 In some states these proceedings are regarded as civil, in others criminal, and in others they are mixed. Recent au- thors,^ ^^ in a treatise oft-quoted with reference to the nature of this proceeding, have classified the states as follows: (1) Criminal: California, ^®^ Massachusetts, ^^"^ Maine,^^^ Nebras- ka,^ ^^N^^ Hampshire.^"' (2) Civil: Colorado,^** Georgia,^^^ New Jersey,^^® Wisconsin,^'^ Wyoming.^®* (3) In some cases criminal and others civil: Alabama,^®* Ohio,^**** Kansas,*"^ Tennessee.^"* (4) In the following states appears to be as- sumed a mesne position : Illinois,^"^ Indiana,^"* lowa,^""* Mich- igan,2o« Minnesota,^*''^ Missouri.^os New York.^o* In the first class formal complaint under oath is necessary, and any plead- ings required must be formal and particular;**" in the sec- 18 8 Horr & B. Mun. Ord. § 170. 189 City of Santa Barbara v. Sherman, 61 Cal. 57. 190 In re Goddard, 16 Pick. 504, 28 Am. Dec. 259. 191 O'Malia v. Wentworth, 65 Me. 129. 192 City of Brownville v. Cook, 4 Neb. 101. 193 state V. Stearns, 31 N. H. 106. 194 Mclnerney v. Denver, 17 Colo. 302, 29 Pac. 516.' 195 Williams v. City Council, 4 Ga. 509; Floyd v. Commissioners, 14 Ga. 354, 58 Am. Dec. 559. i96 Brophy v. Perth Amboy, 44 N. J. Law, 217. 197 City of Oshkosh v. Schwartz, 55 Wis. 483, 13 N. W. 553. 198 Jenkins v. Cheyenne, 1 Wyo. 287. 199 City of Mobile v. Jones, 42 Ala. 630. 200 Larney v. Cleveland, 34 Ohio St. 599. 201 Nietzel v. Concordia, 14 Kan. 446. 202 Theilan v. Porter, 14 Lea, 622, 52 Am, Rep. 173; Town of Bristol V. Burrow, 5 Lea, 128. 203 Town of Lewiston v. Proctor, 23 111. 533. 204 Miller v. O'Reiley, 84 Ind. 168. 20 5 City of Davenport v. Bird, 34 Iowa. 524. 20 6 Cooper v. People, 41 Mich. 403, 2 N. W. 51. 2 07 state V. Lee, 29 Minn. 445, 13 N. W. 913. 20 8 City of St. Louis v. Vert, 84 Mo. 204. 209 Wood v. Brooklyn, 14 Barb. 425. 210 Campbell v. Thompson, 16 Me. 117; Kansas City T. Flanagan^ 69 Mo. 22. § 77) PROCEDURE. 251 ond class the liberty of civil procedure prevails ; '^^ in the third class the procedure is dependent upon the nature of the par- ticular case; and in the fourth class, without specifying the degree of particularity, the courts declare that criminal rules need not be followed, but the proceeding is necessarily stricter than in civil cases. ^^^ Careful attention will disclose dis- cord not only between the decisions of different states, but even in those of the same states, so as to unsettle the classifica- tion of those given above. Jury Trial. The much mooted question of trial by jury in these cases has been variously decided, the decisions generally concurring, however, in the doctrine that the proceeding is valid if the accused may obtain a jury trial on appeal without oppressive restrictions.^^' Proof of Ordinance. There is a general concurrence of decisions that the mu- nicipal courts will take judicial notice of all municipal ordi- nances, but that in other courts ordinances must be duly proven.'^* Some of the cases have gone to the extent of hold- ing that the original record must be produced, and due enact- ment of the ordinance proven therefrom; ^^' others hold that its due enactment will be presumed from its being recorded among the municipal ordinances, and that a certified copy is 211 Keeler v. Milledge, 24 N. J. Law, 142; Sutton v. McConnell, 46 Wis. 269, 50 N. W. 414. 212 Furhman v. Mayor, 54 Ala. 2(33; City of Goshen v. Croxton, 34 Ind. 239; City of Emporia v. Volmer, 12 Kan. G22. 213 Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; -Mclnerney v. Denver, 17 Colo. 302, 29 Tac. .516. 214 Shanfelter v. Mayor, 80 Md. 483, 31 Atl. 439, 27 L. R. A. 648; Munson v. Fenno, 87 111. App. 655; City of St. Louis v. Roclie, 128 Mo. 541, 31 S. W. 915; Watt v. Jones, 60 Kan. 201, 56 Pae. 16. 216 Lindsay v. Cliicago, 115 111. 120, 3 N. E. 443; City of Ottumwa V. Schaub, 52 Iowa, 515, 3 N. W. 529; City of Independence v. Trouvalle, 15 Kan. 70; Town of Tipton v. Norman, 72 Mo. 380. 252 PROCEEDINGS AND ORDINANCES. (Ch. 10 sufficient ; •*• while others apply to municipal ordinances the rule of state laws, and hold that an ordinance may be proven by the production of a printed pamphlet or volume contain- ing the same, purporting to be published by authority.^ ^' Courts — Jurisdiction. When the charter or statute provides that a certain court shall have jurisdiction of violations of municipal ordinances, this jurisdiction is usually held exclusive.^^® Such jurisdic- tion is generally given to the municipal court, whether held by mayor, recorder, or police judge or justice, and the action or prosecution is usually brought in the name of the munici- pality; ^^® but in some states it is brought in the name of the state.^*° If no court is named as having jurisdiction, the or- dinances are not thereby rendered nugatory, but the action may be brought in the court having general jurisdiction. Twice in Jeopardy. When the same act is made an offense both by statute and ordinance, it has been held that it is a breach of the constitu- tional provision against putting a citizen twice in jeopardy for the same act to prosecute and punish the offender under both laws, and that a conviction under either may be pleaded in bar of the prosecution under the other.'^** But the weight of authority is opposed to this holding, upon the rather specious 216 McChesney v. Chicago, 159 111. 223, 42 N. E. 894; Bailey v. State, 30 Neb. 855, 47 N. W. 208. 21T Chicago & A. Ry. Co. v. Winters, 65 111. App. 435; Napman V. People, 19 Mich. 352; St Louis v. Railroad Co., 89 Mo. 44, 1 S. W. 305, 58 Am. Rep. 82; City of Rutherford v. Swink, 90 Tenu. 152, 16 S. W. 76; Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370, 19 S. W. 1053. 218 Horr & B. Mun. Ord. § 166. 210 1 Dill. Mun. Corp. §§ 427 (note 1), 429. 120 North Dakota; Washington. 221 State V. Cowan, 29 Mo. 330; City of Corvallls v. Carllle, 10 Or. 139, 45 Am. Rep. 134; State v. Welch, 36 Conn. 215; Menken v. Atlanta, 78 Ga. 668, 2 S. E. 559; Slaughter v. People, 2 Doug. (Mich.) 334; State v. Keith, 94 N. C. 933. § 77) PROCEDUKB. 253 distinction that one prosecution is for the violation of the state law, and the other for breach of the municipal ordinance only, and only quasi criminal.-^* Repeal. An ordinance once duly enacted remains in force until re- pealed.^^^ The same vote is required to repeal as to enact.^** Repeal may be effected by implication as well as by expres- sion. ^^^ But here the same rules apply as to state statutes.-^® The legislature may also repeal a municipal ordinance by ex- press legislation or by necessary implication, the rule being that if the subsequent state statute, or a subsequent ordinance, is necessarily repugnant to the ordinance, and the intention to repeal is obvious, then the ordinance is thereby repealed.^^^ 222 Town of Bloomfield v. Trimble, 54 Iowa, 399, 6 N. W. 586, 37 Am. Rep. 212; City of St. Louis v. Bentz, 11 Mo. 61; Haukins V. People, 106 111. 628; State v. Oleson, 26 Mimi. 507, 5 N. W. 959; Blatcbley v. Moser, 15 Wend. (N. Y.) 215; Mclnerney v. Denver, 17 Colo. 302, 29 Pac. 516; McRea v. Mayor, 59 Ga. 168, 27 Am. Rep. 390; Riley v. Inhabitants, 51 N. J. Law, 498, 18 Atl. 116, 5 L. R. A. 352; City of Indianapolis v. Huegele, 115 Ind. 581, 18 N. E. 172. 228 A valid city ordinance when passed never becomes obsolete, but remains in force until repealed by the corporation. Shroder v. Lancaster (Pa. 1875) 6 Lane. Bar, 201; Wilson v. Spencer, 1 Rand. (Va.) 76, 10 Am. Dec. 491. 224 1 Dill. Mun. Corp. § 282; Seattle v. Barto, 31 Wash. 141, 71 Pac. 735; Robinson v. Baltimore, 93 Md. 208, 49 Atl. 4. An or- dinance cannot be repealed, amended, or suspended by a resolution. People V. Latham, 203 111. 0, 67 N, E. 403; Joliet v. Petty, 96 111. App. 450. 226 Staples v. Bridgeport, 75 Conn. 509, 54 Atl. 194; Joliet v. Petty, supra; Schmidt v. Lewis, 03 N. J, Eq. 564, 52 Atl. 707; Budd V. Railway Co., 63 N. J. Eq. 804, 52 Atl. 1130; City of Grand Rapids V. Norman, 110 Mich. 544, 68 N. W. 269; Knight v. West Union, 45 W. Va. 195, 32 S. E. 163; Smyrk v. Sharp, 82 Md. 97, 35 Atl. 411; Dutton v. Aurora, 114 111. 138, 28 N. E. 461; Van DerLeith v. State, 60 N. J. Law, 46, 37 Atl. 436. 2 26 Booth V. Carthage, 67 111. 102; City of Providence v. Railroad Co., 12 R. I. 473. 227 Southport V. Ogden, 23 Conn. 128; Town of Marietta ▼. Fear- ing, 4 Ohio, 427; Horr & B. Mun. Ord. §§ 60, 61. 254 OFFIC£!&S, AaSNTS, AMD BMPL0YB8. (Cb. 11 CHAPTER XI. OFFICERS, AGENTS, AND EMPLOTfiS. 78. Officers. 79. Officers, Governmental and Municipal.^ 80. Eligibility. 81. Appointment and Election. 82. Fiduciary Relations. 83. Officers De Facto. 84. Salary. 85. Title to Office. 86. Resignation. 87. Judicial Control. 88. Removal. 89. Personal Liability — Contracts. 90. Torts. 91. Reimbursement of Municipality for Loss. 92. Agents. 93. Employes. OFFICERS. 78. A municipal officer is one •arh.o holds for a time a per- manent municipal position of trust and responsibil- ity, ^vith definite municipal poxvers, duties, and privi- leges. A municipal agent is one employed and intrusted by a mu- nicipality with discretionary power to represent It in dealings ivith third persons. A municipal employe is one engaged in the service of the municipality. At common law an office was defined to be "a right to ex- ercise a public or private employment, and to take the fees and emoluments thereunto belonging, whether public or pri- vate." ^ But in America "public offices are created for the purpose of effecting the ends for which government has been 1 2 Bl. Comm. p. 36. ^ 16) OFFICEBA, i^9 instituted, which are the common good, and not the profit, honor, or private interest of any man, family, or class of men. In our form of government it is fundamental that public of- fices are a public trust, and that the persons to be appointed should be selected solely with a view to the public welfare." ^ Right they may have to fees and emoluments ; but these are purely incidental to the office they hold, the controlling idea being not the right of the officers, but the welfare of the public whose servants they are.^ The office endures; the officer is temporary. His term is usually fixed by law, and for a certain period. The law also defines the scope of his powers, duties, and privileges, and thus endows him with a portion of the governmental authority.* He is not master, but servant, of 2 Field, C. J., in BROWN v. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, .55 Am. St. Rep. 357; Grieb v. Syracuse (Sup.) 87 N. Y. Supp. 10S3; United States v. Addison, 6 Wall. (U. S.) 291. 18 L. Ed. 919; Shaw v. -Jones, 6 Ohio Dec. 453, 4 Ohio N. P. 372; Livaudais v. Municipality No. 2, 16 La. 509; Burns v. New Yorli, 3 Hun (N. Y.) 212, 5 Thomp. & C. 371; State v. Kiichli, 53 Minn. 147, 54 N. W. 10C9, 19 L. R. A. 779; Clark v. Stanley, 66 N. C. 59, 8 Am. Rep. 488; In re Corliss, 11 R. I. 638. 23 Am. Rep. 538; Prince V. Skilliu, 71 Me. 361, 36 Am. Rep. 325; State v. Douglas. 26 Wis. 428, 7 Am. Rep. 87; Cooley, Const. Lim. (6th Ed.) p. 331. 3 Hendricks v. State, 20 Tex. Civ. App. 178, 49 S. W. 705; Grieb V. Syracuse (Sup.) 87 N. Y. Supp. 10S3; Commonwealth v. Gamble, 62 Pa. 343, 1 Am. Rep. 422; Bowers v. Bowers. 26 Pa. 74, 67 Am. Dec. 398; People v. Stratton, 28 Cal. 382. In the absence of law, ordinance or express contract, he Is not entitled to compensation. Bosworth V. New Orleans, 26 La. Ann. 494; Haswell v. New York. 9 Daly (N. Y.) 1, 81 N. Y. 255; Blackburn v. Oklahoma City, 1 Okl. 292, 31 Pac. 782, 33 Pac. 708. * BROWN V. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, .55 Am. St. Rep. 3.57; Attorney General v. Drohan. H;9 Mass. 534. 48 N. E. 279, 61 Am. St. Rep. 301; McCornick v. Thatcher, 8 Utah, 294, 30 Pac. 1091. 17 L. R. A. 243; Burns v. New York, 3 Hun (N. Y.) 212; Doyle v. Raleigh. 89 N. C. 133, 45 Am. Rep. 677; Stiite V. Kirk, 44 Ind. 401, 15 Am. liep. 239; Ogden v. Raymond, 22 Conn. 379, .58 Am. Dec. 429; Sheboygan Co. v. Parker, 3 Wall. (U. S.) 93, 18 L. Ed. 33; I*rather v. Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585. 256 OFFICERS, AGENTS, AND EMPLOYES, (Ch. 11 the law — the common sovereign of all. His duties may be ministerial only, though usually they call for the exercise of discretion within the limited scope of his powers. He is ap- pointed or elected by the municipality to exercise its functions in dealing with the citizen. His position, therefore, is a place of high trust and responsibility, whether he be mayor or al- derman, recorder, or police officer. Agents. An agent also holds a position of like trust, responsibility, and discretion. His relation is fiduciary, and he may contract with third persons in the name of the corporation, and in matters committed to him may create corporate obligations ; but he is distinguished from an officer in the fact that his posi- tion is not permanent, but temporary, and for a special object.^ When the service is performed, the relation ceases ; the agency begins and ends with the special business. The duration of the agency is indefinite, but it usually terminates with the completion of the special business committed to it. If the agency becomes permanent, it then is called an office. Employes. "Employe" is used to describe one occupying a permanent position and performing a continuing service, so that, just as in an office, when one person goes out of the place another goes in. But the duties and services are purely ministerial ; the employe is not clothed with discretion, and has no power to represent or bind the employer.** These general rules fur- 6 Barnes v. Philadelphia, 3 Phila. (Pa.) 409; Egan v. St. Paul, 57 Minn. 1, 58 N. W. 267; City of Baltimore v. Eschbach, 18 Md. 27<;; Baldwin v. Logansport, 73 Ind. 346; Davis v. Philadelphia, 3 Phila. (Pa.) 374; Detroit Free Press Co. v. State Auditor, 47 Mich. 135, 10 N. W. 171; In re Newport Charter, 14 R. 1. 655; Sanford v. Boyd, 2 Cranch (C. C.) 79, Fed. Cas. No. 12,311; Travelers' Ins. Co. V. Oswego, 59 Fed. 58, 7 C. C. A. 609; United States v. Hartwell, 6 Wall. (U. S.) 385, 18 L. Ed. 830; Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169. • Fletcher v. Lowell, 15 Gray (Mass.) 103; Shanley v. Brooklyn, § 79) OFFICERS, GOVERNMENTAL AND MUNICIPAL. 257 nish a g^uide for distinguishing various persons by which the corporation acts and operates, but it is not always easy to dis- criminate between them and determine just where each person belongs. OFFICERS, GOVERNMENTAL AND MUNICIPAL. 79. The officers of a municipality corresponding to its poTi^ers are of t^vo classes, governmental and municipal. The difficulty of distinguishing between governmental and municipal functions, hereinbefore discussed,'' exists also as to the officers of the corporation. The police department and all its officers are generally held to be state officers, as distin- guished from municipal ; ^ but cases in New York * and Ken- tucky ^° have ruled to the contrary. City comptrollers, treas- urers, and auditors are obviously municipal officers.^^ So, 30 Hun (N. Y.) 396; Trainor v. Board, 89 Mich. 102, 50 N. W. 809. 15 L. R. A. 95. 7 Ante, § 64. 8 Yaple V. Morgan, 2 Ohio Cir. Ct. R. 406; Perkins v. New Haven, 53 Conn. 214, 1 Atl. 825; Burch v. Hardwiclie, 80 Grat. (Va.) 24, 32 Am. Dec. 640; Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 506; Kimball v. Boston, 1 Allen (Mass.) 417; State v. Seavey, 22 Neb. 454, 35 N. W. 228; Rusher v. Dallas, 83 Tex. 151, 18 S. W. 333; State v. Hunter, 38 Kan. 578, 17 Pac. 177; Culver v. Sti-eator, 130 III. 238, 22 N. E. 810, 6 L. R. II. 270; Borough of Norristown v. Fitzpatrick, 94 Pa. 121, 39 Am. Rep. 771. Shanley v. Brooklyn, 30 Hun. aSMi; Mangam v. Brooklyn, 98 N. Y. 585, 50 Am. Rep. 705; People v. Albertson. 55 N. Y. 50. 10 Speed v. Crawford, 3 Mete. (Ky.) 207, where it was held that members of the police board were "officers for cities and towns. ' witbui the provision of Const, art. 6, par. 6. 11 Stevenson v. Bay City. 20 Midi. 44; People v. Neilson, 48 How. Prac. (N. Y.) 454; Rissing v. Ft. Wayne, 137 Ind. 427, 37 N. E. 328; City of Ballard v. Keane, 13 Wash. 2ia, 43 Pac. 27; Morse v. Lowell, 7 Mete. (Mass.) 152; State v. Brandt. 41 Iowa, 593; State v. Walton. 62 Me. 106; Jenkins v. Scran ton, 202 Pa. 267, 51 Atl. 994; Brown v. IKO.COBP. — 17 258 . OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 likewise, the firemen and members of the fire department have been declared to be municipal rather than public.^* Those offi- cers engaged in the administration of justice, preservation of the public peace, and the like, are state officers, while those enforcing the municipal by-laws, and attending to the gas- works, waterworks, sewers, and other municipal agencies, are usually held to be municipal officers.^' The mayor has been held to be, in Missouri,^* a municipal officer, and in Michi- gan ^° a state officer; but it is believed that the former accords with the general current of decisions, as it does with the reason of the law.^* He is the official head of the municipality, its chief executive officer, the president of the corporation, and specially identified with the local interests centering in the mu- nicipality.^^ Turner, 70 N. C. 93; Lorillard v. Monroe, 11 N. Y. 392, 62 Am. Dec. 120. 12 Miller v. Fire Co., 20 Ga. 678; People v. Fire Department, 14 Cal. 479; People v. Pinckney, 32 N. Y. 377. But see Lowry v. Lexington, 24 Ky. Law Rep. 516, 68 S. W. 1109. 13 State v. Mulvihill, 9 Ohio Dec. 450; Commonwealth v. Grant. 2 Woodw. Dec. (Pa.) 379; State ex rel. Cameron v. Shannon, 133 Mo. 139, 33 S. W. 1137; PEOPLE v. DRAPER, 15 N. Y. 543; City of Chicago V. Wright, 69 111. 326; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; Burch v. Hardwicke, 30 Grat. (Va.) 24, 32 Am. Rep. 640; United States v. Memphis, 97 U. S. 284, 24 L. Ed. 937; People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677. 14 Britton v. Steber, 62 Mo. 370. 15 Attorney General v. Detroit, 112 Mich. 145, 70 N. W. 450, 37 L. R. A. 211. 16 PEOPLE V. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; STATi: V. DENNY, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; Speed v. Crawford, 3 Mete. (Ky.) 207; Goud v. Portland, 96 Me. 125, 51 Atl. 820 (harbor master). 17 People V. Gregg, 59 Hun, 107, 13 N. Y. Supp. 114; People v Wood, 4 Parker, Cr. R. (N. Y.) 144; Elliott, :Mun. Corp. § 271. Under the Constitution the mayor is the chief executive officer of a city, and, as such, is authorized to supervise the other officers thereof in the execution of their duties. Burch v. Hardwicke, 23 Grat (Va.j 51. § 79) OFFIOSBS, GOVERNMENTAL AND MUNICIPAL. 259 Aldermen. In common parlance the aldermen or councilmen are spoken of as holding municipal offices, but this appellation finds little countenance in the law. These functionaries in a body con- stitute the legislative department of the municipality/® and have no separate individual powers or functions.^* They re- semble congressmen and legislators in the federal and state government, and these are seldom called officers. Yet in Rhode Island,^" Connecticut,^^ and Oregon, ^^ common coun- cilmen have been held to be officers within the provisions of the Constitutions of those states, and in the two latter states they were held to be public officers. Distinction Important. This distinction between municipal and public officers has been considered important in Michigan, ^^ Indiana,"* and other states, in view of certain constitutional provisions reserving the right of local self-government to municipalities. In view of these provisions it was ruled in the two states named above that boards appointed by the legislature, and specially empow- ered to perform certain acts for the municipality, were not officers of the municipaUty, and could make no contracts bind- ing upon it.''* 18 Central Bridge Corp. v. Lowell, 15 Gray (Mass.) 106; Richards V. Clarksburg, 30 W. Va. 491, 4 S. E. 774. i» State V. Kirk, 44 Ind. 401, 15 Am. Rep. 239; McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758; Dey v. Jersey City, 19 N. J. Kq. 412; CITY OF BALTIMORE v. POULTXEY, 25 Md. 18. 20 In re Newport Charter. 14 R. I. 655. 21 Garvie v. Hartford, 54 Conn. 440, 7 Atl. 723. 22 David V. Water Committee, 14 Or. 98, 12 Pac. 174. See, also, as to aldermen, City of Council Bluffs v. Waterman, 86 Iowa, 688, 53 N. W. 289. s-i PEOPLE V. HURLBUT, 24 Mich. 44. 9 Am. Rep. 103. 2* STATE V. DENNY, 118 Ind. 382, 449. 21 N. E. 252, 274, 4 L. R. A. 65, 79. 2 6 PEOPLE V. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. 260 OFFICSBS, AGSNTS, AND BMFLOXSS. (Ch. 11 ELIGIBILITY. 80. Qualifications for holding municipal ofBces are usually prescribed by tbe Constitution and general statutes of tbe state, but are often expressed in the charter of the corporation. When qualifications are fixed by the Constitution, the legis- lature cannot impose additional requirements either by charter or general law.'^® Neither can these be fixed by municipal or- dinance,^' nor can statutory qualifications be changed by ordi- nance.^* Residence is generally a qualification;^'* but non- residents have been held eligible to municipal office when resi- 2« state V. Ruhe, 24 Neb. 251, 52 Pac. 274; City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. The legislature can not impose any general qualification wbich the Constitution does not require. Barker v. People, 3 Cow. (N. Y.) 686, 15 Am. Dec. 322. The Constitution of Oregon provides that electors shall be male citizens, and also that only electors shall be eligible to county offices. An act making women eligible to the office of superintendent of schools was held void, as violating the constitutional provision. State V. Stevens, 29 Or. 464, 44 Pac. SOS. But see State v. Mc- Allister, 38 W. Va. 485, 18 S. E. 770, 24 L. R. A. 343; Thomas v. Owens, 4 Md. 189. 2 7 Barker v. People, supra. 28 The city council has no power to add to the qualifications of 2ity attorney as prescribed by charter. Commonwealth v. Willis, 19 Ky, Law Rep. 962, 42 S. W. 1118. See, also, Bowyer v. Camden, 50 N. J. Law, 87, 11 Atl. 137. 29 Territory v. Smith, 3 Minn. 240 (Gil. 164), 74 Am. Dec. 749; State ex rel. Thomas v. Williams, 99 Mo. 291, 12 S. W. 905; People V. Piatt, 117 N. Y. 159, 22 N. E. 937; State v. George, 23 Fla. 585. 3 South. 81; Jain v. Bossen, 27 Colo. 423, 62 Pac. 194; Dowty v. Pittwood, 23 Mont. 113, 57 Pac. 727. Sound public policy requires that those who represent the local units of government shall themselves be component parts of such units, and this purpose can only be truly served by requiring such representatives to be and remain actual residents of the units which they represent, in conti'adistinction from constructive residents. People V. Ballhorn, 100 111. App. 571. § 80) ELIGIBILITY. 26] dence is not prescribed by statute or charter.'** Women, minors, and aliens are ineligible unless otherwise expressly provided by law.^^ A property qualification may also be pre- scribed by law.^^ Eligibility at Date of Election and of Taking Office. ' Whether a candidate must be eligible at the date of election, or only at the date of induction into office, has been much mooted, and has produced conflicting decisions. In Indiana,^* Wisconsin,^* lowa,^^ and Kansas ^* it has been ruled that any person is eligible who can qvjahfy himself to take and hold the office at the date of induction into it; and this is the rule with regard to members of Congress. ^^ But the weight of 80 state V. Swearingen, 12 Ga. 23; Pettit v. Yewell, 24 Ky. Law Rep. 565, 68 S. W. 1U75; Jones v. Mills, 11 111. App. 350. 31 State V. Stevens, 29 Or. 464, 44 Pac. 89S; State v. George, 23 Fla. 585, 3 South. 81; BRADWELL v. ILLINOIS, 16 Wall. (U. S.) 130, 21 L. Ed. 442; In re Robinson, 131 Mass. 376, 41 Am. Rep. 239. See, also. State v. Streukens, 60 Minn. 325, 62 N. W. 259; State v. Van Beck, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397. But in the absence of provision as to qualifications of a deputy county clerk, a minor was held eligible to hold the office. Harkreader v. State, 35 Tex. Or. R. 243, 33 S. W. 117, 60 Am. St. Rep. 40. 3 2 Darrow v. People, 8 Colo. 417, 8 Pac. 661. Where arrearages of taxes disqualifies, an alderman elect may render himself eligible by payment of the same before assuming office. People v. Hamilton, 24 111. App. 609. 3 3 Shuck V. State, 136 Ind. 63, 35 N. E. 993; Vogel v. State, 107 Ind. 374, 8 N. E. 164. 3 4 State V. Murray, 28 Wis. 96, 9 Am. Rep, 489; State v. Trumpf, 50 Wis. 103, 5 N. W. 876, 6 N. W. 512, where an alien who had not declared his intention to become a United States citizen at time of election was held competent to hold the office, the disability having been removed before the term of office began. 3 5 State V. Van Beck, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397. 36 Privett V-. Bickford, 26 Kan. 53, 40 Am. Ilep. 301. See, also, as to Kentucky, Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S. W. 137, 29 L. R. A. 703, 53 Am. St. Rep. 422. 37 McCrary, Elect. § 311. 262 OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 judicial decision favors the doctrine that the candidate must be eligible at the date of his election." APPOINTMENT AND ELECTION. 81. Tlie mode of selecting ^nunicipal officers is prescribed in tlie charter or the general la\F, and varies greatly in different states and in the several municipalities of the same state. The mayor and members of the governing body are elected by the people ; *® but the treasurer, comptroller, marshal, at- torney, and members of boards are chosen in some corpora- tions by the people, and in others by the council.*" Subor- dinate officers are generally chosen by the council or appointed by the mayor ; but the power of appointment is not here, as in England, an inherent executive function.*^ When, however, 3 8 state ex rel. Attorney General v. Page, 140 Mo. 501, 41 S. W. 963; State ex rel. Deering v. Berkeley, 140 Mo. 184, 41 S. W. 732: People V. Leonard, 73 Cal. 230, 14 Pac. 853; Drew v, Rogers (Cal.) 34 Pac. 1081; State v. Williams, 99 Mo. 291, 12 S. W. 905; Hill v. Territory, 2 Wash. T. 147, 7 Pac. 63; State v. Moores, 52 Neb. 770, 73 N. W. 299; Carson v. McPbetridge, 15 Ind. 327; Taylor v. Sul- livan, 45 Minn. 309, 47 N. W. 802, 11 L. R. A. 272. 22 Am. St. Rep. 729. 39 Elliott, Mun. Corp. § 259; City of Monroe v. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345. 40 STATE V. CURRY, 134 Ind. 133, 33 N. E. 685; Ball v. Pagg, 67 Mo. 481; State ex rel. Kane v. Johnson, 123 Mo. 43, 27 S. W. 399; Commonwealth v. Crogan, 7 Kulp (Pa.) 23; Sheridan v. Col- vin, 78 111. 237; Greer v. Asheville, 114 N. C. 678, 19 S. E, 635; People V. Albertson, 55 N. Y. 50; Grant v. Alpena, 107 Mich. 335, 65 N. W. 230; Whipple v. Henderson, 13 Utah, 484, 45 Pac. 274; Armstrong v. Whitehead, 67 N. J. Law, 405, 51 Atl. 472. The leg- islature may by statute confer upon the Governor the power to ap- point members of the board of fire and police commissioners of cities of the meti'opolitan class. State v. Broatch (Neb.) 94 N. W. 1016. *i Speed V. Detroit, 98 Mich. 360, 57 N. W. 406, 22 L. R. A. 842. 39 Am. St. Rep. 555; People v. Freeman, 80 Cal. 233, 22 Pac. 173, § 81) APPOINT31ENT AND ELECTION. 2U3 this power of appointment is conferred upon him, confirma- tion by the common council is not necessary unless expressly required;*^ but if required, it is essential to a valid appoint- ment.*^ In elections by the common council the rule of ma- jority obtains,** but in popular elections a plurality of votes is sufficient.*^ Condition Precedent. Compliance with conditions precedent is essential to the law- ful taking and holding of an office.** At common law a citi- zen was obliged to accept public office under penalty of in- dictment for refusal ; *^ but in America public office is consid- ered rather a distinction to be coveted than a burden to be borne. An office, however, must be accepted;*^ but formal acceptance is not necessary ; *® it may be implied from con- 13 Am. St. Rep. 122; Fox v. McDonald, 101 Ala. 51, 13 South. 416, 21 L. R. A. 52lt, 46 Am. St. Rep. 98. 42 state V. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. Rep. 39. 43 Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743. 44 LAWRENCE v. INGERSOLL, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308, 17 Am. St. Rep. 870; Wheeler v. Commoawealth, 98 Ky. 59, 32 S. W. 259; MILLS v. GLEASON, 11 Wis. 470, 78 Am. Dec. 721; Cadmus v. Farr, 47 N. J. Law, 208. 4 5 Price V. Baker, 41 Ind. 572, 13 Am. Rep. 346; Brown v. Blake, 46 Conn. 549; Gulick v. New, 14 Ind. 93, 77 Am. Dec. 49. But see State V, Wilmington, 3 Har. (Del.) 294. 46 State V. Wadhams, 64 Minn. 318, 67 N. W. 64; State v. Eshelby, 2 Ohio Cir. Ct. B. 468; People v. McKinney, 52 N. Y. 374; Vaughan V, Johnson, 77 Va. 300; Johnson v. Mann, 77 Va. 265. 47 Edwards v. United States, 103 U. S. 471, 26 L. Ed. 314. 48 Yet the common law is still recognized in the following Amer- ican cases: City of Waycross v. Youmans, 85 Ga. 708, 11 S. E. 865; United States v. Wright, 1 McLean, 509, Fed. Cas. No. 16,775; State ex rel. Van Buskirk v. Boecker, 56 Mo. 17; Slate v. Clayton, 27 Kan. 442, 41 Am. Rep. 418; Hoke v. Henderson. 15 N. C. 1, 25 Am. Dec. 677; London v. Headen, 70 N. C. 72; Haywood v. Wheeler, 11 Johns. 432; Edwards v. United States, supra. See, also. Clout- man V. Pike, 7 N. H. 209. 4» Smith V. Moore, 80 Ind. 294; Coyne v. Rennie, 97 Cal. 590, 32 Pac. 578. 2G4 OFFICERS, AGENTS. AND EMPLOYES. (Ch. 11 duct.'" Generally an oath of office, and oftentimes a bond, is a condition precedent to entering upon the duties thereof; and one cannot become an officer de jure until he has complied with these conditions.''^ But it has been held that failure to comply does not ipso facto create a vacancy, nor work a for- feiture of the right,^^ but that the officer may, after taking the office, comply with these conditions at any time before proceed- ings are instituted for his removal.''* riDUCIARY RELATIONS. 82. All officers of a municipal corporation, including alder- men, occupy a fiduciary relation towards tlie public, and must act solely witli reference to the best inter- ests of tbe community. Like the Gospel, so the law declares that no man can serve two masters; therefore one who takes upon himself a public office must not use it for self-service.^* In all matters affect- ing the public his knowledge and skill are devoted to it, and 50 Johnson v. Wilson, 2 N. H. 202, 9 Am. Dec. 50; STATE EX REL. KUHLMAN v. ROST, 47 La. Ann. 53, 16 South. 776; Hartford Tp. V. Bennett, 10 Ohio St. 441. 61 People V. McKiuuey, 52 N. Y. 374; Thompson v. Nicholson, 12 Rob. (La.) 326; Davis v. Berger, 54 Mich. 652, 20 N. W. 629; Olney V. Pearce, 1 R. L 292; Hayter v. Benner, 67 N. J. Law, 359, 52 Atl. 351; Town of Tumwater v. Hardt, 28 Wash. 684, 69 Pac. 378, 92 Am. St. Rep. 901; State ex rel. Hull v. Gray, 91 Mo. App. 438. But failure to talve the prescribed oath will not prevent his becoming an officer de facto. Rosell v. Board, 68 N. J. Law, 498, 53 Atl. 398. 6 2 State V. Ruff, 4 Wash. 234, 29 Pac. 999, 16 L. R. A. 140; State V. Kraft, 20 Or. 28, 23 Pac. 6G3. Contra, Vaughan v. Johnson, 77 Va. 300. 6s Launtz v. People, 113 111. 137, 55 Am. Rep. 405; Board of Knox County Com'rs v. Johnson, 124 Ind. 145, 24 N. E. 148, 7 L. R. A. 684, 19 Am. St. Rep. 88; Holt Co. v. Scott, 53 Neb. 176, 73 N. W. 681, and cases cited. 64 Goodrich v. Waterville, 88 Me. 39, 33 Atl. 659; 1 DiU. Mun. Corp. § 444. § 82) FIDUCIARY RELATIONS. i5ti5 may not be used to the detriment of the corporation.*' So it has been held that if an officer, whose duty it is to select a lot for the use of the city, procure the purchase, though before- hand by an agent, and sell the same at an advanced price to the city, he must account to the city for the profit made there- by. ^° The agent also is liable if he participate knowingly in the transaction."^ An officer may not contract with himself on behalf of the city, for it requires two to make a valid con- tract."® Nor can a member of a city board vote upon any con- tract with the city in which he is personally interested ; ^^ but it is generally ruled that holding a municipal office is no dis- qualification to contracting with a municipality, provided it is represented in the transaction by other officers.** 66 Nunemacber v. Louisville, 98 Ky, 334, 32 S. W. 1091. 68 Short V. Symmes, 150 Mass. 298, 23 N. E. 42, 15 Am. St. Rep. 204. 67 Short V. Symmes, supra. 68 City of Ft. Wayne v. Rosenthal, 75 Ind. 156, 39 Am. Rep. 127: Drake v. Elizabeth, 69 N. J. Law, 190, 54 Atl. 248; Santa Ana Water Co. V. San Buenaventura (C. C.) 65 Fed. 323; McElhinney v. Su- perior, 32 Neb. 744, 49 N. W. 705; Holderness v. Baker, 44 N. H. 414; Grand Island Gas Co. v. West. 28 Neb. 852, 45 N. W. 242. 69 Berlin Iron Bridge Co. v. San Antonio (C. C.) 62 Fed. 882; Foster v. Cape May. 60 N. J. Law, 78. 36 Atl. 1089; Jolly v. Railroad Co., 25 Pittsb. Leg. J. (Pa.) 259; 1 Dill. Muu. Corp. (6th Ed.) § 311. 60 McBride v. Grand Rapids, 47 Mich. 236, 10 N. W. 353; City of Niles V. Muzzy, 33 Mich. 61, 20 Am. Rep. 670; Board of Tip- pecanoe County Com'rs v. Mitchell, 131 Ind. 370, 30 N. E. 409, 15 L. R. A. 520; United States v. Brindle, 110 U. S. 688, 4 Sup. Ct. 180, 28 L. Ed. 286. 26a OFFICERS, AGENTiJ, AND EMPLOYES. (Ch. 11 OFFICERS DE FACTO. 83. An officer de facto is one x^lio, under claim of right or color of title, liolds an office de jure, and perforins tlie functions thereof ivitli the acquiescence of the public. A mere usurper or intruder is not an officer de facto.'^ He lacks the color of title and the public reputation and acquies- cence essential to a de facto officer. Nor can one be a de facto officer unless he is actually holding an office de jure.'* "Where no office legally exists, the pretended officer is merely an usurper, to whose acts no vaUdity can be attached. Of- fices are created for the benefit of the public, and private par- ties are not permitted to inquire into the title of persons clothed with the evidence of such offices, and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed, until in some regular mode prescribed by law their title is investigated and determined." ®' Their acts are there- fore held valid on considerations of public policy and neces- sity, provided they are generally recognized by the public as 61 Keeler v. City of New Bern, 61 N. C. 505; Town of Plymouth V. Painter, 17 Conn. 585, 44 Am. Dec. 574. One assuming to perform the duties incident to a public office without attempting to qualify is without color of title and an usurper. Creighton v. Commonwealth, 83 Ky. 147, 4 Am. St. Rep. 143. See, also, Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176; Dabney v. Hudson, 68 Miss. 292, 8 South. 545, 24 Am. St. Rep. 276. 62 People V. Hecht, 105 Cal. 621, 88 Pac. 941, 27 L. R. A. 203. 45 Am. St. Rep. 96; Hawver v. Seldenridge, 2 W. Va. 274, 94 Am. Dec. 532; People v. Staton, 73 N. C. 546. 21 Am. Rep. 479. 63 NORTON V. SHELBY COUNTY, 118 U. S. 425, 6 Sup. Ct 1121, 30 L. Ed. 178; Town of Decorah v. Bullis, 25 Iowa, 15; People v. White, 24 Wend. (N. Y.) -520; Kirker v. Cincinnati, 48 Ohio St. 507, 27 N. E. 898; Burt v. Railroad Co., 31 Minn. 472, 18 N. W. 285; Carleton v. People, 10 Mich, 250; Roche v. Jones, 87 Va. 484, 12 S. E. 965. § 84) SALARY. 267 holding the offices.** With regard to the constitutionality of the law under which an office is held, a distinction has been taken between the law creating the office and the one provid- ing for the election. If the former is unconstitutional, there can be no de facto officer; '^^ but there may be, if only the law providing for election to the office is declared unconstitutional." SAIiABT. 84. Tlie salary prescribed by laxir for the official services of a municipal officer is considered tlie full compensation for all sucb services rendered by him during iis term of office, even though his duties be increased by emer- gency or by lair during the term. The compensation of public officers is governed entirely by charter or statute. It is under the control of the legislature, by which it may be increased or diminished. "^^ Likewise the duties of the office may be made more or less onerous by leg- islation, or may be increased by emergency arising during the term.^® The officer accepts the office in view of all these 6* Hawkins v. Jonesboro, 63 Ga. 527; State v. Gray, 23 Neb. 365. 36 N. W. 577; Roche v. Jones, supra; Dean v, Gleason, 16 Wis. 1; People V. Nosti'and, 46 N. Y. 375; Cocbrau v. McCleary, 22 Iowa, 75; Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176; State v. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 L. R. A. 653: Koontz V. Hancock, 64 Md. 134, 20 Atl. 1039; State v. Lane, 16 R. I. 620, 18 Atl. 1035; Scoville v. Cleveland, 1 Ohio St. 126; Williams V. School Dist., 21 Pick. (Mass.) 75, 32 Am. Dec. 243; Lockhart v. Troy, 48 Ala. 579; Haskell v. Dutton, 65 Neb. 274, 91 N. W. 395. 68 NORTON V. SHELBY COUNTY, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. •« State V. Carroll, 38 Conn. 449, 9 Am. Rep. 409; People v. Ter- ry, 108 N. Y. 1, 14 N. E. 815. • 7 Green v. New York, 8 Abb. Prac. (N. Y.) 25, 2 Hilt. (N. Y.) 203; Love v. Jersey City. 40 N. J. Law, 456; Waldraveu v. Memphis, 4 Cold. (Tenn.) 431; Gilbert v. Paducah, 24 Ky. Law Rep. 1998, 72 S. W. 816; Faulkner v. Sisson, 183 Mass. .524, 67 N. E. 669. «8 City of Baltimore v. Ritchie, 51 Md. 233; Leveridge v. New York, 5 N. Y. Super. Ct. 263; Commissioners v. Murray, 3 Watts 2^ OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 possible conditions, and impliedly undertakes to render what- ever service may be required, either by law or by emergency during his official term, for such compensation as the legisla- ture has provided or may provide during the term.®' The legislature may or may not allow additional compensation for additional service imposed upon him. This he knows when he accepts the office, and he is bound to perform its duties for the salary affixed thereto.'^" He has no legal claim for additional compensation for additional service though the sal- ary be confessedly inadequate.^ ^ Nor is it competent for the [Pa.) 348; City of Covington v. Mayberry, 9 Bush (Ky.) 304; Board of Education v. Quick, 99 N. Y. 138, 1 N. E. 533, • » Gilmore v. Lewis, 12 Ohio, 281; Evans v. Trenton, 24 N. J. Law, 766; City of Detroit v. Redfield, 19 Mich. 376; Waterman V. New York, 7 Daly (N. Y.) 489. It was held in Albright v. County of Bedford, 106 Pa. 582, that where an officer's compensation is fixed by statute he cannot recover extra compensation for expenses incurred in performing his duties, even though the custom has been for a long time that the corporation should bear them. But see City of Ludlow v. Richie, 25 Ky. Law Rep. 1581, 78 S. W. 199. 70 Sidway v. Commissioners, 120 111. 496, 11 N. E. 852; City of Covington v. Mayberry, 9 Bush (Ky.) 304; White v. Polk Co., 17 Iowa, 413; City of Ludlow v. Richie, supra. A salaried officer of a public corporation made claim for extra compensation on the ground that his official duties had been increased, new duties being added since the salary was fixed. It was held that he was not en- titled to an increase. People v. Supervisors, 1 Hill (N. Y.) 362. But in special instances, as where the law has required an officer to perform services attended with trouble and expense, and clearly outside of his regular official duties, he may recover. People v. Supervisors, 12 Wend. (N. Y.) 257. See, also, Huffman v. Greenwood Co., 23 Kan, 281 (as to services rendered by city and county attor- neys, not required as part of their duties); Goud v. Portland, 96 Me, 125, 51 Atl. 820 ; Finley v. Territory, 12 Okl. 621, 73 Pac. 273. 71 City of Poughkeepsie v. Wiltsie, 36 Hun (N. Y.) 270; Council Bluffs V. Waterman, SO Iowa, GSS, 53 N. W. 2S0 ; Coleman v. Elgin, 45 111. App. 64; City of Covington v. Mayberry, 9 Bush (Ky.) 304; Bartch V. Cutler, 6 Utah, 409. 24 Pac. 526 ; Gordon County Com'rs v. Harris, 81 Ga. 719, 8 S. E. 427 ; Stiffler v. Delaware, 1 Ind. App. 368, 27 N. E. 641 ; Beard v. Decatur, 64 Tex. 7, 53 Am. Rep. 735 ; Stockwell v. § 84) SALARY. 269 board to vote an increase of compensation for extra services ; ""^ and it has been held that an alderman is indictable for misde- meanor who votes an increase of salary to himself when the statute forbids him to vote on any subject in which he is in- terested, even though he does not take the salary.'^* The law with regard to the salaries of de facto officers in municipal corporations is the same as in quasi corporations, as herein- before set forth. ■^^ Suffice it here to say that the salary be- longs to the officer de jure, and an action cannot be main- tained for it by the officer de facto.^"* The officer de jure may sue the corporation for his salary if it has not been paid to the officer de facto, even though the latter rendered the serv- ices.'* The officer de jure may also recover from the officer Genesee County, 56 Mich. 221, 23 N. W. 25 ; In re Parsons, 54 N. Y. Super. Ct. 451. T^ Garvie v. Hartford, 54 Conn. 440, 7 Atl. 723; BUCK v. EURE- KA, 109 Cal. 504, 42 Pac. 243, 30 L. R. A. 409 ; Debolt v. Cincinnati Tp., 7 Ohio St. 237 ; Preston v. Bacon, 4 Conn. 471 ; Heslep v. Sacra- mento, 2 Cal. 580 (vote of $10,000 to mayor, for meritorious serv- ices, held void); Reif v. Paige, 55 Wis. 496, 13 N. W. 473, 42 Am. Rep. 731; State v. Nashville, 15 Lea (Tenn.) 697, 54 Am. Rep. 427. In Cloonan v. Kingston, 37 Misc. Rep. 322, 75 N. Y. Supp. 425, it was held that where the common council has power to fix the salary of the city attorney it may award him compensation for preparing a revision of the city charter, in excess of the amount of his salary. See Board of Education of Lexington v. ]Moore, 24 Ky. Law Rep. 1478, 71 S. W. 621. 73 State V. Van Auken, 98 Iowa, 674, 68 N. W. 454; Duty v. State, 9 Ind. App. 595, 36 N. E. 605; State v. Shea, 106 Iowa, 735, 72 N. W. 3!50; People v. Bogart, 3 Parker, Cr. R. (N. Y.) 143, T4 Ante, § 25, pp. 82-83. See, also. Cutshav,- v. Denver (Colo. App.> 75 Pac. 22. 76 Jones V. Easton, 4 Pa. Dist. R. 509; Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. 168; McCue v. Wapello Co., 5G Iowa, 698, 10 X. W. 24S, 41 Am. Rep. 134; Andrews v. Portland, 79 Me. 4Si, 10 Atl. 458, 10 A:.i. St. Rep. 280; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409. •« Dolan V. New York. 68 X. Y. 274, 23 Am. Rep. IGS; State v. Eshelby, 2 Ohio Cir. Ct. R. 468; Meehan v. Board, 46 N. J. Law, 27G, 50 Am. Rep. 421; Burke v. Edgar, 67 Cal. 182, 7 Pac. 488: Meagher v. Storey County, 5 Nev. 244. 270 OFFICERS, AGENTS, AND EMI'LOYES. (Ch. 11 ' de facto the amount of salary paid to him; ''"' but he cannot enjoin such payment except upon recognized grounds of equity, such as insolvency.''^ Whether the ofificer de jure may recover from the municipality the salary already paid to the officer de facto is diverstiy ruled by the courts, some holding that he can,^^ others that he cannot.^" Holding Over. ^ An officer elected or appointed for a definite term is en- titled to remain in office until his successor is lawfully elected and qualified, unless otherwise provided;*^ and this holding TT Westberg v. Kansas City, 64 Mo. 493; Michel v. New Orleans. 32 La. Ann. 1094; Mayfield v. Moore, 53 III. 428, 5 Am. Rep. 52; Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280: Bier v. Gorrell, 30 W. Va. 95, 3 S. B. 30, 8 Am. St. Rep. 17; Glas- cock V. Lyons, 20 Ind. 1, 83 Am. Dec. 299; Nichols v. MacLean, 101 N. Y. 526. 5 N. E. 347, 64 Am. Rep. 730; People v. Miller, 24 Mich. 458, 9 Am. Rep. 131. TsBruner v. Bryan, 50 Ala. 523; Field v. Commonwealth, 32 Pa. 478; Page v.« Hardin. 8 B. Mon. (Ky.) 648; Dolan v. New York, 68 N. Y. 274, 23 Am. Rep. 168; Bowerbank v. Morris (C. C.) Wall. Sr. 118, Fed. Cas. No. 1,726. T» State ex rel. Cullen v. Carr, 3 Mo. App. 6; People v. Bren- nan, 30 How. Prac. 417; Ward v. Marshall, 96 Cal. 155, 30 Pac. 1113, 31 Am. St. Rep. 198; STATE v. CARR, 129 Ind. 44, 28 N. E. 88. 13 L. R. A. 177, 28 Am. St. Rep. 163; Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743; City of Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280; Kendall v. Raybould, 13 Utah, 226, 44 Pac. 1034 ; STATE v. MILNE, 36 Neb. 301, 54 N. W. 521, 19 L. R. A. 689, 38 Am. St. Rep. 724. 80 Westberg v. Kansas City, 64 Mo. 493; Saline Coimty Com'rs V. Anderson, 20 Kan. 298, 27 Am. Rep. 171 ; STATE v. MILNE, supra ; Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417; Demarest V. New York, 147 N. Y. 203, 41 N. E. 405; State ex rel. Vail v. Clark, 52 Mo. 508; Scott v. Crump, 106 Mich. 288, 64 N. W. 1, 58 Am. St. Rep. 478; McDonald v. Newark, 58 N. J. Law, 12, 32 Atl. 384; State v. Eshelby, 2 Ohio Cir. Ct. R. 468. 81 City of Central v. Sears, 2 Colo. 5SS; State v. Bulkeley, 61 Conn. 287, 23 Atl. 186, 14 L. R. A. 657; White v. New York, 4 E. D. Smith, 563; People v. Ferris, 16 Hun (N. Y.) 219; De Lacey v. § 85) TITLE TO OFFICE. 2^71 over is not prevented by constitutional provision that "the gen- eral assembly shall not create any office the tenure of which shall be more than four years." " The incumbent holds over whenever there is a failure to elect his successor,*^ unless such failure is due to his own official negligence, in which case he is forbidden to profit by his own wrong. ^* In the former case he is an officer de jure; ^^ in the latter he can be at most only an officer de facto — better, de son tort.** TITLE TO OFFICE. 85. Tlie title to an office cannot be tried or determined in a collateral proceeding, but only by direct contest. This rule applies only to officers de facto, and will not pre- vent a party from showing that the alleged or pretended offi- cial action was taken by a mere usurper or intruder,*^ for in Brooklyn (City Ct. Brook.) 12 N. Y. Supp. 540: State v. Kearns, 47 Ohio St. 5G(], 25 N. B. 1027; State v. Wilsou, 12 Lea (Tenn.) 247: City of Wheeling v. Black, 25 W. Va. 26G; McMillin v. Kicliards, 45 Neb. 786, 64 N. W. 242; Feople v. Rodgers, 118 Cal. 393, 46 Pac. 740, 50 Pac. 668; People v. Herring, 30 Colo. 445, 71 Pac. 413; Ter- ritory V. Jacobs, 12 Okl. 152, 70 Pac. 197; Keen v. Featherston, 29 Tex. Civ. App. 563, 69 S. W. 983; Wright v. Jacobs, 12 Okl. 138, 70 Pac. 193. 82 State V. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. Rep. 663. 83 State V. Wilson, 12 Lea (Tenn.) 247; In re Budlong. 15 R. I. 332, 5 Atl. 77; Lynch v. Lafland, 44 Tenn. (4 Cold.) 96; Lafferty v. Huffman, 99 Ky. SO. 35 S. W. 123, 32 L. R. A. 203. De facto officers in possession of an office and discharging the duties were, as against persons having no right thereto, entitled to continue in office. El- liott V. Burke, 24 Ky. Law Rep. 292, 68 S. W. 445. 84 People V. Bartlett, 6 Wend. (N. Y.) 422, Venable v. Curd, 2 Head (Tenn.) 584; Lynch v. Lafland, supra. 80 Hale V. Bischoff, 53 Kan. 301, 36 Pac. 752; State v. Wilson, 12 Lea (Tenn.) 246; City of Wheeling v. Black, 25 W. Va. 266; John- son V. Mann. 77 Va. 265; People v. P'erris, 16 Hun (N. Y.) 219: Walk- er V. Perrill. 58 Ga. 512; Brady v. Howe. 50 Miss. 607. 86 Lynch V. Lafland, 4 Cold. (Tenn.) 96. 87 United States v. Alexander (D. C.) 46 Fed. 72a 272 OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 such instance the action is void. The mode of procedure for trying title to an office is usually prescribed by statute,** and in such proceeding a judgment of amotion and induction is rendered. When an incumbent suflfers unlawful removal by the board of aldermen, the proper remedy is certiorari ; *' and the question of title of one in possession is properly tested not by mandamus, but by quo warranto.^" This proceeding re- sults, however, in amotion, and does not give inductioii."* In some states mandamus is used to try title.®' RESIGNATION. 86. At common Iax7 botli tender and acceptance were essential to effect tlie resignation of municipal officers; bnt this rule, though recognized still in some localities, is not generally regarded as the laiv in America. The common-law doctrine was that, since public servants were necessary to execute the laws, an office was a burden to be borne by the citizen in the interest of the community,"^ 88 1 Dill. Mim. Corp. §§ 202-205. 8 9 State V. Jersey City. 54 N. J. Law, 310, 23 Atl. 666; People v. Nichols. 58 How. Prac. (N. Y.) 200; People v. Cooper, Id. 358. 9 Simon v. Hoboken, 52 N. J. Law (23 Vroom) 3G7, 19 Atl. 259; State V. Dunn, Minor (Ala.) 46, 12 Am. Dec. 25; St. Louis County Court V. Sparks, 10 Mo. 117, 45 Am. Dec. 355; State v. Gates, 86 Wis. 634, 57 N. W. 296, 39 Am. St. Rep. 912; Board of Aldermen v. Darrow, 13 Colo. 460, 22 Pac. 784, 16 Am. St. Rep. 215; Bonner v. State, 7 Ga. 473: Brown v. Turner, 70 N. C. 93; People v. Kikluff, 15 [11. 492, 60 Am. Dec. 769. See, also, State ex rel. Johnston v. Badger, 90 Mo. App. 183; Searing v. Clark (N. J. Sup.) 55 Atl. 090; Mindermann v. Tillyer, Id. 81 State V. Lane, 16 R. I. 620, 18 Atl. 1035; State v. Broatch (Neb.) 94 N. W. 1017. 92 LAWRENCE v. INGEIiSOLL, 88 Toiin. ,-2. 12 S. W. 422. 6 L. R. A. 308, 17 Am. St. Hop. 870; Luce v. Board, 153 Mass. 108, 20 N. E. 419; Vanton v. Wilson, 4 Tex. 400. See State v. Kersten (Wis.) 95 N. W. 120. 93 Hoke V. Henderson, 15 N. C. 1, 25 Am. Dec. 677; Edwards v. § 86) RESIGNATION. 273 and therefore when chosen to it he must accept it, and could not resign it without consent of the appointing power.'' ■* This doctrine is still recognized in Virginia,®^ North Carolina/'® Tennessee,®^ Kansas,®^ and perhaps some other states; but the contrary has been expressly ruled in Iowa, Ohio,"' Ne- braska,^"" California,^°^ and other states, and is more con- sonant with American habits of thought. However, it has been held by the federal courts^"^ and the courts of Texas^'^^ and Illinois^''* that, when the law provides that an incumbent shall hold office until his successor is elected and qualified, he is not relieved from the duties of his office even by the acceptance of his resignation, but must await the qualification of his successor. Written or record evidence is essential to an express resignation ; but the acceptance may be manifested by a formal declaration or by the appointment of a succes- sor.^°» United States, 103 U. S. 471, 26 L. Ed. 314; Willc, Mun. Corp. p. 129. 84 1 Dill. Mun. Corp. § 224. 8 5 Coleman v. Sands, 87 Va. 689, 13 S. E. 148. 96 Hoke V. Henderson, 15 N. C. 1, 25 Am. Dee. 677. 87 Kain, Tennessee Officer, § 2. 9 8 State V. Clayton, 27 Kan. 442, 41 Am. Rep. 418. 8 8 Reiter v. State, 51 Ohio St. 74, 36 N. E. 943, 23 L. R. A. 681. 100 state V. Lincoln, 4 Neb. 260. 101 People V. Porter, 6 Cal. 26; Prlmm v. Carondelet, 23 Mo. 2^. 10 2 Badger v. United States, 93 U. S. 599, 23 L. Ed. 991; United States V. Green (C. C.) 53 Fed. 769. 103 Jones V. Jefferson, 66 Tex. 576, 1 S. W. 903; Keen v. Feather- ston, 29 Tex. Civ. App. 563, 69 S. W. 983; State v. Brinkerhoff, 66 Tex. 45, 17 S. W. 109. 104 People V. Barnett Tp., 100 111. 332. See, also. Fryer v. Norton, 67 N. J. Law, 537, 52 Atl. 476; Attorney General v. Marston, 66 N. H. 485, 22 Atl. 560, 13 L. R. A. 670; note to Reiter v. State, 51 Ohio St. 74, 36 N. E. 943. 23 L. R. A. 681. 105 People V. Hanifan, 6 HI. App. 158; Id., 96 111. 420; Bath v. Reed, 78 Me. 276, 4 Atl. 688; Edwards v. United States, 103 U. S. 471, 26 L. Ed. 314; Reiter v. State, 51 Ohio St. 74, 36 N. E. 943, 23 L. R. A. 681. Ing.Corp. — 18 274 OFFICERS, AGENTS, AND EMl'LOYES. (Ch. 11 Implied. Resignation of office may be implied as well as express. When residence is a qualification for a municipal office, an officer vacates his office by removing beyond the corporate limits.^"" So, likewise, when he accepts and assumes an in- compatible office.^"'' In both instances the original office in- stantly terminates without judicial proceedings, and the suc- cessor may be forthwith elected or appointed to fill the vacancy thus created. ^°^ But a bonded officer cannot discharge his obligation by resignation in either of the foregoing methods.^''"' And an exception to the general rule is made in those juris- dictions where acceptance is held necessary to complete the resignation.^ ^° Whether the new office is incompatible with the foniier one is a question to be decided by the courts ; there must be either a statutory inhibition or an obvious inconsist- ency in the functions of the two offices.^^^ Official notice of 106 People V. Hull, 64 Hun (N. Y.) 638, 19 N. Y. Supp. 536; State ex rel. Warmotti v. Graham, 26 La. Ann. 568, 21 Am. Rep. 551; Gurry v. Stewart, 8 Bush (Ky.) 560; People v. Parker, 3 Neb. 409, 19 Am. Rep. 634; Commonwealth v. Lally, 30 Leg. Int. (Pa.) 296. 107 People V. Murray, 73 N. Y. 535; O'Brien v. New York, 84 Hun. 50, 32 N. Y. Supp. 34; People v. Carrique. 2 Hill (N. Y.) 93; Mechem, Pub. Off. § 421; 1 Dill. Mun. Corp. § 225. 108 Wilson V. King, 3 Litt. (Ky.) 457, 14 Am. Dec. 84; State v. Brinkerhoff, 66 Tex. 45, 17 S. W. 109; Stubbs v. Lee, 64 Me. 195, 18 Am. Rep. 251; Edwards v. United States, 103 U. S. 471, 26 L. Ed. 314; Magie v, Stoddard, 25 Conn. 565, 68 Am. Dec. 375; People V. Hanifan, 6 111. App. 158. 109 Attorney General v. Marston, 66 N. H. 485, 22 Atl. 560, 13 L. B. A. 670; City of Philadelphia v. Marcer, 1 Leg. Gaz. R. (Pa.) 355. 110 Mechem, Pub. Off. § 421. 111 State V. Brinkerhoff, 66 Tex. 45, 17 S. W. 109; Preston v. United States (D. C.) 37 Fed. 417; Gulick v. New, 14 Ind. 93, 77 Am. Dec. 49; People v. Green, 5 Daly, 254, Id., 58 N. Y. 295; Stubbs V. Lee. 64 Me. 195, 18 Am. Rep. 251. The office of mayor is held to be incompatible with town clerk, 7 Com. Dig. tit. "Officer," B 6; retired army officer. State v. De GJress, 53 Tex. 387; prison commissioner, Howard v. Shoemaker, 55 Ind. 111. The office of alderman is held incompatible under § 87) JUDICIAL CONTROL. 275 this implied resignation can be taken only by that government under which the first office is held ; for example, when a con- gressman accepts the office and performs the duties of a state judge, he is a de facto judge, though he continues also to hold his seat in Congress.^** JUDICIAL CONTROL. 87. Municipal officers are subject to judicial control by man- damus, injunction, or amotion to compel performance of judicial duties, observance of tbe lavr, and removal of un\Portby officers. The jurisdiction of courts in supervising official action is generally limited to ministerial duties.^ ^^ Courts will not sub- stitute their judgment for that of public officers in whom dis- cretion is vested; ^^* but this rule is limited by the restriction that "the discretion must be exercised within its proper limits for the purposes for which it is given, and from the motives by which alone those who gave the discretion intended that its exercise should be governed." ^^^ And so, where power is given to a board of supervisors to fix water rates, the rate fixed must be reasonable and just, so as not to amount to a practical confiscation of the property of the water company, otherwise the courts will interfere.^ ^® Likewise, where the English law with that of county treasurer, town clerk, burgess, and city chamberlain. Throop, Pub. Off. § 35. 112 Calloway v. Sturm, 1 Heisk. (Tenn.) 764; City of Nashville V. Thompson, 12 Lea (Tenn.) 348. 113 Ray V. Wilson, 29 Fla. 342, 10 South. G13, 14 L. R. A. 773; Commonwealth v. Henry, 49 Pa. 530; Hudmon v. Slaughter, 70 Ala. 54G; City of Madison v. Smith, S3 lud. 502. 114 1 Dill. Mun. Corp. §§ 94, 95, 83.5-837; State v. Lincoln (Neb.) 94 N. W. 719; In re Molineux (Sup.) S3 N. Y. Supp. 943. 115 People V. Sturtevant, 9 N. Y. (5 Seld.) 203, 59 Am. Dec. 530; Davis V. Mayor, 1 Duer (N. Y.) 451. 118 SPRING VALLEY WATERWORKS v. SAN FRANCISCO, 82 Cal. 280, 22 Pac. 910, 104C, 6 L. R. A. 750, 10 Am. St. Rep. 110. 276 OFFICERS, AGENTS, AND EMTLOYES. (Ch. 11 board of aldermen is made the sole judge of the qualification, election, and return of its own members, it must observe the limits of its jurisdiction and exercise its power regularly, or the courts will supervise the same by certiorari. ^^'' If, how- ever, any officer refuses to perform a mandatory duty, its per- formance will be enforced by mandamus,^ ^^ for contempt of which the officer may be punished. ^^' Nor can he escape this penalty by resignation after service of the process.^^" So, also, officers may be enjoined from illegal acts threatened un- der color of their official position.^ *^ Here, too, the courts iiT state V. Common Council, 53 Minn. 238, 55 N. W. 118, 39 Am. St. Rep. 595; Ecliols v. State, 56 Ala. 131; State ex rel. Turner v. Fitzgerald, 44 Mo. 425; Commonwealth v. Allen, 70 Pa. 465; State V. Gates, 35 Minn. 385, 28 N. W. 927. But see Keating v. Stack, J 16 III. 191. 5 N. E. 541. 118 United States v. Memphis, 97 U. S. 284, 24 L. Ed. 937; United States V. Lawrence, 3 Dall. (U. S.) 42, 1 L. Ed. 502; Kennedy v. Washington, 3 Cranch, C. C. 595, Fed. Cas. No. 7,708; Coy v. Ljons, 17 Iowa, 1, 85 Am. Dec. 539; City of Memphis v. Brown, 97 U. S. 300, 24 L. Ed. 924; Mayor, etc., of City of New Orleans v. Morgan. 7 Mart. N. S. (La.) 1, 18 Am. Dec. 232; Brander v. Justices, 5 Call (Va.) 548, 2 Am. Dec. 606. Mandamus will lie to compel the performance of purely minis- terial duties incumbent on an officer by virtue of his office, and con- cerning which he possesses no discretionary powers. AVarmo'.ts v. Keegan (N. J. Sup.) 54 Atl. 813. See State ex rel. Clement v. Stokes. 99 Mo. App. 236, 73 S. W. 254; People v. Marlett (Sup.) 83 N. Y. Supp. 962; Finley v. Territory (Okl.) 73 Pac. 273. 118 State ex rel. Bauman v. Judge, 38 La. Ann. 43, 58 Am. Rep. 158. 120 Edwards v. United States, 103 U. S. 471, 26 L, Ed. 314; Jones V. Jefferson, 66 Tex. 576, 1 S. W. 903. 121 Payne v. English, 79 Cal. 540, 21 Pac. 952; Buchanan v. Beaver, 171 Pa. 567, 33 Atl. 115; Holden v. Alton, 179 111. 318, 53 N. E. 556; Morton v. Carlin. 51 Neb. 202, 70 N. W. 966; City of Omaha v. Megeath, 46 Neb. 502, 64 N. W. 1091; Northern Pac. R. Co. V. Spokane (C. C.) 52 Fed. 428; Ambrose v. Buffalo (Super. N. Y.) 20 N. Y. Supp. 129; Quinton v. Burton, 61 Iowa, 471, 16 N. W. 569; Dudley v. Frankfort Trustees, 12 B. Mon. (Ky.) 610; City of Emporia v. Soden, 25 Kan. 58S, 37 Am. Rep. 205. § 88) REMOVAL. 277 will carefully inquire whether the threatened act of the officer is beyond his proper discretion. If not, the injunction will be refused.^^^ REMOVAL. 88. Generally, the poxrer of removal is an incident of tlie power of appointment; and, Tirliere an officer liolds dur- ing the Trill and pleasure of the appointing powrer, that pourer is also the removing power, and is sole judge of the propriety of removal. The legislature may authorize the removal of appointive of- ficers at the will of the appointing power,^^^ but an elective officer can be removed from office only by due process of law.^^* The power of removal includes the power of suspen- 122 Heffran v. Hutchins, 160 111. 550, 43 N. E. 709, 52 Am. St. Rep. 353; Knapp, Stout & Co. Company v. St, Louis, 153 Mo. 560, 55 S. W. 104; Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; Everett v. Deal, 148 Ind. 90, 47 N. E. 219; Fellows v. Walker (C. C.) 39 Fed. 651; Lane v. Schomp, 20 N. J. Eq. 82. 123 Armatage v. Fisher, 74 Hun, 167, 26 N. Y. Supp. 364; People V. New York, 16 Hun (N. Y.) 309; State v. Williams, 6 S. D. 119, 60 N. W. 410; Christy v. Kingtisher (Okl.) 76 Pac. 135; People v. Whitlock, 92 N. Y. 191; Trainor v. Board, 89 Mich. 162, 50 N. W. 809, 15 L. R, A. 95. In the absence of express grant or implied limitation of authority, a municipal corporation possesses the incidental power to remove for cause the corporate officers, whether elected by it or by the people. State ex rel. McMahon v. New Orleans, 107 La. 632, 32 South. 22. But see Speed v. Detroit, 98 Mich. 360, 57 N. W. 406, 22 L. R. A. 842, 39 Am. St. Rep. 555; Caulfield v. State, 1 S. C. 461; People v. McAllister, 10 Utah, 357, 37 Pac. 578; State v. Kiichli, 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779; State v. Shear- man, 51 Kan. 686, 35 Pac. 455; State v. Kennelly, 75 Conn. 704, 55 Atl. 555. 124 State ex rel. Attorney General v. Doherty, 25 La. Ann. 119, 13 Am. Rep. 131; People v. Commissioners, 106 N. Y. 64, 12 N. E. 041; Trainor v. Board, supra; Board of Aldermen v. Darrow, 13 Colo. 460, 22 Pac. 784, 16 Am. St. Rep. 215; Field v. Commonwealth. 32 Pa. 478. 27a OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 sion pending trial.*^' This power may be conferred either upon the mayor or the Governor of the state; ^'^^ but in case of conviction of crime which disqualifies from holding ofTice, the court may pronounce the sentence of- disquaUfication and removal.^^^ Civil Service. The courts also exercise control over officers in compelling the enforcement of civil service laws and rules by man- damus.^^* Following the example set by Congress in 1883 in passing the Pendleton Act, New York in the same year, and Massachusetts the year following, adopted civil service rules applicable to the state, and including the municipalities thereof ; and, following these, civil service laws were passed by California, Connecticut, Illinois, Indiana, Louisiana, Ohio, Pennsylvania,' Washington, Wisconsin, and some other states. ^^® These laws are not uniform in extent or provisions, but most of them are made applicable to municipalities. Some embrace most of the appointive officers, and some only em- ployes, excepting confidential clerks and agents. Their pur- 125 State ex rel. Campbell v. Commissioners, 16 Mo. App. 48; State V. Peterson, 50 Minn. 239, 52 N. W. 655; Shannon v. Ports- mouth, 54 N. H. 183. But such suspension cannot be indefinitely without pay. Gregory v. New York, 113 N. Y. 416, 21 N. E. 119, 3 L. R. A. 854. Contra, Tyrrell v. Jersey City, 25 N, J. Law, 536. 126 state V. Johnson, 30 Fla. 433, 11 South. 845, 18 L. R. A. 414; Carr v. State, 111 Ind. 101, 12 N. E. 107 ; State v. Kennelly, 75 Conn. 704, 55 Atl. 555; Hogan v. Collins, 183 Mass. 43, 66 N. E. 429; Com- monwealth V. Crogan, 155 Pa. 448, 26 Atl. 697; Wilcox v. People, 90 111. 186. 127 State V. Humphreys, 74 Tex. 466, 12 S. W. 99, 5 L. R. A. 217: Mayor, etc., of City of Macon v. Shaw, 16 Ga. 172; People v. Board, 9 Hun (N. Y.) 222; Commonwealth v. Jones, 10 Bush (Ky.) 725. Contra, People v. Board, 11 Hun (N. Y.) 403 ; Oliver v. City Council, 69 Ga. 165. 128 Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809. 129 4 Enc. Americana, in verb; Liudblom v. Doherty, 102 111. App. 14. § 88) EEJIOVAL. 279 pose is to ensure competency of officers and employes, espe- cially the latter. For this purpose tests by examination are prescribed by a board of commissioners provided for in the law, and vested with wide discretion to frame rules and other- vvnse attend to the details of the law. They are vested with official discretion, but do not exercise judicial powers, and, whenever resisted in the performance of their functions, may call the courts to their assistance.^'" These acts have been challenged as unconstitutional by the dispensers of patronage and their beneficiaries, but have been generally, if not univer- sally, sustained by the courts.^^^ Veteran Acts. Civil service regulation has been attempted in the so-called "Veteran Acts" of many of the states, giving preference of appointment to soldiers of the Civil War; but the courts have been averse to sustaining and enforcing these acts in munici- palities, and commentators note the distinctions between mu- nicipal governments and federal and state governments in the matter of reward for military service.^'* The Veteran Act of New York has been declared unconstitutional by the Su- preme Court of that state, as creating a favored class of citi- zens;^'' while a majority of the Supreme Judicial Court of Massachusetts has sustained the Veteran Act of that state, which gives preference only when all other things are equal.^'* 130 2 Smith, Pub. Corp. §§ 1715, 1719. 181 Eogers v. Common Council, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579; People v. Loeffler, 175 111. 585, 51 N. E. 785; People v. Hoffman, 116 111. 587. 5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793. 132 BROWN V. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 33 L. R. A. 253, 55 Am. St. Rep. 357; Sullivan v. Gilroy, 55 Hun (N. Y.) 285, 8 N. Y. Supp. 401; Baker v. Delaney, 55 N. J. Law, 9, 25 Atl. 936; State v. Miller, 66 Minn. 90, 68 N. W. 732; Schoolcraft's Adm'r V. Railroad Co., 92 Ky. 2.33, 17 S. W. 567, 14 L. R. A. 579. 13? In re Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447. But see People v. Stratton, 174 N. Y. 531, 06 N. E. 1114. 134 BROWN V. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357. 280 OFFICERS, AGEN'XS, AND EMPLOYES. (Ch. 11 PERSONAL LIABILITY— CONTRACTS. 89. Without special personal undertaking, officers are not personally liable upon contracts made by tbem for and on behalf of the corporation. When contracts are formally made in the name of the cor- poration questions of personal liability can rarely arise, but upon parol contracts and informal written ones much litiga- tion has arisen over the personal liability of the officers con- tracting. The courts have usually decided these cases upon the manifest intention of the contracting parties; ^^^ for ex- ample, it has been held that a note promising payment by the signers "as trustees of school district" did not bind the indi- vidual signers, but the school district,*'" So, for gravel sold on the credit of a town upon the order of a surveyor of high- ways, with authority to purchase, the town and not the sur- veyor is liable.*''' And generally, wherever the promise of a public officer is connected with a subject fairly within the scope of his authority, it will be presumed to have been made in his public character, unless the intention to bind himself personally is evident.*'® The invalidity of the promise as a municipal contract will not make the officer personally liable without evidence of his intention to become so.*'* But it has been held that an overseer of the poor makes himself person- ally liable by promising that he will be responsible for the payment of the charges.**** In fine, the rule is well settled that wherever the parties understand that the contract is made by the officer on behalf of the corporation, and it is within the 135 Willett V. Young, 82 Iowa, 292, 47 N, W. 990, 11 L. R. A. 115. 136 Sanborn v. Neal, 4 Minn. 12G (Gil. 83), 77 Am. Dec. 502. 137 Brown v. Rundlett, 15 N. H. 360. 138 Parks V. Ross, 11 How. (U. S.) 362, 13 L. Ed. 730; TATE v. GREENSBORO, 114 N. C. 392, 19 S. E. 767, 24 L. R. A. 671. 139 Houston V. Clay County, 18 Ind. 396; Boardman v. Hayne, 29 Iowa, 839; McCraoken v. I.avalle, 41 111. App. 573. 140 King V. Butlor, 15 Jolins. (N. Y.) 281; Ives v. Hulet, 12 Vt. 314. < § 90) TORTS. 281 scope of his authority, the corporation alone is liable, and the officer becomes personally liable only upon manifest intention to that effect. ^*^ It is a general rule that an action for neg- lect of an official duty can be maintained only against minis- terial officers.^*^ An officer charged with discretionary power is not liable in damages unless he act arbitrarily and in obvi- ous violation of law.*** TORTS. 90. If the dnty Imposed npon an officer is a dnty to the pnblio, a failure to perform it or an inadequate or erroneous performance is a public injury, and must be redressed, if at all, in some form of public prosecution. But if, on the contrary, the duty is a duty to an individual, then the neglect to perform it properly is an individ- ual Throng, and may support an individual action for damages. It is a general rule that judicial officers actmg withm their jurisdiction cannot be held personally liable for the improper or erroneous performance of their duties.^** This rule em- braces all officers exercising discretionary powers, and conse- 1*1 Blanchard v. Blackstone, 102 Mass. 343; Hodges v. Runyan, 30 Mo. 491; Balcombe v. Northup, 9 Minn. 173 (Gil. 159); Ford V. Williams, 13 N. Y. 577, 67 Am. Dec. 83; Soutlnvorth v. Flanders. 33 La. Ann. 190; Andrews v. Estes, 11 Me. 267, 20 Am. Dec. 521; Mott V. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550; Gale v. Kala- mazoo, 23 Mich. 344, 9 Am. Rep. 80. 142 Amy V. Supervisors, 11 Wall. (U. S.) 136, 20 L. Ed. 101; Nowell V, Wright. 3 Allen (Mass.) 166, 80 Am. Dec. 62; Blair v. Lantry, 21 Neb. 247, 31 N. W. 790 ; Piercy v. Averill, 37 Hun (N. Y.) 360. 143 Boutte V. Emmer, 43 La. Ann. 980, 9 South. 921, 15 L. R. A. 63; Pruden v. Love, 67 Ga. 190; McCarthy v. De Armit, 99 Pa. 63; Rounds V. Mumford. 2 R. I. 154; Baker v. State, 27 Ind. 485. 144 Moss V. Cummings, 44 Mich. 359, 6 N. W. 843; Jordan v. Hanson, 49 N. H. 199, 6 Am. Rep. 508; Lange v. Benedict, 73 N, Y. 12, 29 Am. Rep. 80; Mostyn v. Fabrigas, 1 Smith, Lead. Cas, (8th Ed.) 1027; People v. Bender, 36 Mich. 195; Wamesit Power Co. v. Allen, 120 Mass. 352. 282 OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 quently protects members of an equalizing board,**' inspectors of fruits and meats,**' board of street commissioners,^*'^ tax assessors,**^ auditors of claims,**® officers employed to lay out, alter, and discontinue highways,*'*" mayors,*^* constables, and justices of the peace,* ''^ and, generally, all boards invested with discretionary power.* °® But it is generally held that this exemption from liability in the performance of discretionary public functions does not exist when the officer has been actuated by corrupt or malicious motives,*^* or has practiced fraud upon the person suffering injury.*'"' On the contrary. 145 Steele v. Dunham, 26 Wis. 393. 146 Fatli^v. Koeppel, 72 Wis. 289, 39 N. W. 539, 7 Am. St. Rep. 867. 147 ROBINSON V. ROHR, 73 Wis. 436, 40 N. W. 668, 2 L. R. A. 366, 9 Am. St. Rep. 810; Atwater v. Trustees, 124 N. Y. 602, 27 N. E. 38.o. 148 Weaver v. Devendorf, 3 Denio (N. Y.) 117; Cooley, Tax'u. 551 et seq. 149 Wall V. Trumbull, 16 Mich. 228. 150 Sage V. I^uiraiD, 19 Mich. 137; TATE v. GREENSBORO, 114 N, C. 392, 19 S. E. 767, 24 L. R. A. 671; Scovil v. Geddings, 7 Ohio, 211, pt. 2; Squiers v. Neenah, 24 Wis. 588. 151 Thompson v. Jackson, 93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 92; Pruden v. Love, 67 Ga. 190. 152 Cooley, Torts, § 419; Bish. Noncont. Law, § 783; Austin v. Vrooman, 128 N. Y. 229, 28 N. B. 477, 14 L. R. A. 138; Brooks v. Mongan, 86 Mich. 576, 49 N. W. 633, 24 Am. St. Rep. 137; Scott v. Fishblate, 117 N. C. 265, 23 S. E. 436, 30 L. R. A. 696; Thompson V. Jackson, 93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 92; Harvey V. Dewoody, 18 Ark. 252. Contra, Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200; Houlden v. Smith, 14 Adol. & E. (N. S.) 841. 153 Stewart v. Southard, 17 Ohio, 402, 49 Am. Dec. 463; Mostyn v. Fabrigas, 1 Smith, Lead. Cas. (8th Ed.) 1027; Craig v. Burnett, 32 Ala. 728; Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256. 164 McTeer v. Lebow, 85 Tenn. 121, 2 S. W. 18; Wilkes v. Dins- man, 7 How. (U. S.) 89, 12 L. Ed. 618; Hoggatt v. Bigley, 6 Humph. (Tenn.) 236; Elmore v. Overton, 104 Ind. 548, 4 N. E. 197, 54 Am. Rep. 343. Public officers may also be liable in a criminal action for negligence in the performance of their duty, and this is particularly so with police officers. People v. Diamond, 72 App. Div. 281, 76 N. Y. Supp. 57; People v. Foody, 39 Misc. Rep. 142, 79 N. Y. Supp. 240. 155 City of Oakland v. Carpeutier, 13 Cal. 540; Roper v. Mc- Whorter, 77 Va. 214. § 90) TORTS. 283 the general rule is that in the performance of merely minis- terial duties an officer is liable to third persons for injury suf- fered by his nonfeasance or misfeasance/"® and this rule ap- plies not only to purely ministerial officers, but also to those whose duties are partly discretionary and partly ministerial.^*^ Illustrations. For example, a board of street commissioners, in deter- mining upon the work to be done on adopting plans and specifications therefor, act as judicial officers, and no pri- vate action will lie against them for damage done in exercis- ing these functions. But if they undertake to execute these plans and specifications, either personally or with the aid of employes, they are liable to third persons for injury sufifered from such acts, which are done in a ministerial capacity.^** It has accordingly been held that a mayor, marshal, and board of health were liable for negligence in removing from the city a smallpox patient and carelessly exposing him to incle- ment weather so as to cause his death.^*^ So also is a public meat inspector for failing to discharge his duty; ^^^ and street officers for injury done to an adjoining property by changing the grade of the street.^*^ A ministerial act has been judicially defined to be "one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to, or the exercise of, his 156 Amy V. Supervisors, 11 Wall. (U. S.) 136, 20 L. Ed. 101; Nowell V. Wright, 3 Allen (Mass.) IGG. 80 Am. Dec. 62; Hover v. Barkhoof, 44 N. Y. 113; Allen v. Commonwealth, S3 Va. 94, 1 S. E. 607. 187 ROBINSON V. ROHR, 73 Wis. 436, 40 N. W. 668, 2 L. R. A. 366. 9 Am. St. Rep. 810; Rounds v. Mumford, 2 R. I. 154. 168 ROBINSON V. ROHR, supra. See BOWDEN v. DERBY, 97 Me. 536, 55 Atl. 417, 63 L. R. A. 223, 94 Am. St. Rep. 516 ; Busklrk v. Strickland, 47 Mich. 389, 11 N. W. 210. 169 Aaron v. Broiles, 64 Tex. 316, 53 Am. Rep. 764. i«o Hayes v. Porter, 22 Me. 271. 181 Rives V. Columbia, 80 Mo. App. 173; Rounds v. Mumford, 2 R. I. 154. 284 OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 own judgment upon the propriety of the act done." ^" For the nonfeasance or misfeasance of such official acts the officer is held liable in law; ^^^ but if he discharge such duties faith- fully he is not liable, though injury may result therefrom. Exemption from Liability. It is also held that an officer is not liable to a private action for neglect of an exclusively public duty, even to a person specially injured thereby, and in some cases even though the act was unlawful and malicious.^^* This results from the exemption of the sovereign from suit, and the consequent ex- emption of the public officer performing the functions of the sovereign. Damage alone does not constitute a wrong; the party injured by an officer must show that he suffers from the neglect of some private duty which the officer owed to him.^'^ 182 Flournoy v. Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468. But see Interstate Transp. Co. v. New Orleans, 52 La. Ann. 1859, 28 South. 310. 163 Woolley V. Baldwin, 101 N. Y. 688, 5 N. E. 573; Conway v. Russell, 151 Mass. 581, 24 N. E. 1026; Olmsted v. Dennis, 77 N. Y. 378; Eslava v. Jones, 83 Ala. 139, 3 South. 317, 3 Am. St. Rep. 699; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Raynsford v. Phelps, 43 Mich. 342, 5 N. W. 403, 38 Am. Rep. 189; Sawyer v. Corse, 17 Grat. (Va.) 230, 99 Am. Dec. 445; Long v. Long, 57 Iowa, 497, 10 N. W. 875; Collins v. McDaniel, 66 Ga. 203; St. Joseph Fire & Marine Ins. Co. v. Leland. 90 Mo. 177, 2 S. W. 431, 59 Am. Rep. 9; Stevens v. Dudley, 56 Vt. 158. 164 Cooley, Torts, p. 146: Moss v. Cummings, 44 Mich. 359, 6 N. W. 843. 165 Sage V. Laurain, 19 Mich. 137; Inhabitants of Trescott v. Moan. 50 Me. 347; Billingsley v. State, 14 Md. 369; Held v. Bagwell, 58 Iowa, 139, 12 N. W. 226. § 92) AGENTS. 285 REIMBURSEMENT OF MUXIOIPAI.ITT FOR LOSS. 91. An officer is liable to remunerate the municipality in any sum Tphicli it has lost or been compelled to pay in con- sequence of his official nonfeasance, misfeasance, or malfeasance of ministerial duty. Obviously a fiscal officer who converts or loses municipal funds is personally liable to the corporation therefor. This liability is usually covered by an official bond ; but whether the city have such bond or not there is a common-law liability on the part of the officer.^*' So, also, if in the exercise of his official functions, an officer so negligently, maUciously, or cor- ruptly performs or fails to perform his duties as to render the corporation liable therefor to a third person, for which he re- covers judgment against it, the officer, upon fundamental prin- ciples of law, is liable to an action by the municipality to re- imburse it in the sum it has been thus compelled to pay for his official neglect of duty.^*' AGENTS. 92. Municipal agents include all those officers, persons, and boards which are authorized by la.^xr to represent the corporation and bind it in its contracts and dealings xrith third persons. A corporation can act only through human agency. Its complex organization sometimes requires very many agents to i«8 Inhabitants of Hancock v. Hazzard, 12 Cush. (Mass.) 112, 59 Am. Dec. 171; Thompson v. Stickney, 6 Ala. 579; City of New Haven V. Fresenius, 75 Conn. 145. 52 Atl. 823; City of Lancaster v. Arnold (Ky.) 45 S. W. 82; People v. Bender, 36 Mich. 195; Bennett v. Whitney, 94 N. Y. 302; People v. Cooper, 10 111. App. 384. i«7 1 Dill. Mun. Corp. §§ 236, 237; Rollins v. Board, 15 Colo. 103. 25 Pac. 319; City of Greenville v. Anderson, 58 Ohio St. 463, 51 N. E. 41; Porter v. Thomson, 22 Iowa, 391; Adams v. Lee, 72 Miss. 281, 16 South. 243. 286 OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 execute its multiform powers and discharge its various duties. The general managing agent of the corporation, as we have heretofore seen, is the governing body or common council, resembling the directory of a private corporation; ^" but for the performance of the various municipal functions there are constituted a great variety of boards of commissioners, such as fire, street, water, police, dock, park, and the like. These are permanent positions, and are usually called and treated as offices, and governed by the law controlling them.^"® Be- sides these are often constituted temporary boards or personal agents for the accomplishment of some special work or the discharge of some temporary duty. Such boards and per- sons are usually and properly denominated municipal agents, as distinguished from officers.^'''' The powers and duties of these agents are prescribed by law. This is the limit of their authority to represent and bind the corporation. All persons dealing with them as such corporation agents are bound to take notice of the scope of their agency.^''^ Beyond this limit issAnte, § 71; 1 Dill. Mun. Corp. c. 10; Elliott, Mun. Corp. §§ 253, 255. 169 Elliott. Mun. Corp. §§ 252, 258; Boehm v. Baltimore, 61 Md. 259; People v. McClave, 99 N. Y. 83, 1 N. E. 235; Mayor, etc., of Mobile V. Squires, 49 Ala. 339; Bonebrake v. Wall, 11 Ohio Dec. 38. iTo Pinney v. Brown, 60 Conn. 164, 22 Atl. 430; New York, N. H. & H. R. Co. V. Wheeler, 72 Conn. 481, 45 Atl. 14; Barker v. Southern Const. Co., 20 Ky. Law Rep. 796, 47 S. W. 608; REUTING v. TIT- USVILLE, 175 Pa. 512, 34 Atl. 916. This employment of an agent to perform services for a municipali- ty need not necessarily be by a formal ordinance, by-law, or reso- lution, nor is it essential that a contract be in writing. It may arise by implication, or from ratification of acts done by one assuming to act for the corporation. Wilt v. Redkey, 29 Ind. App. 199, 64 N. E. 228. 171 Condran v. New Orleans, 43 La. Ann. 1202, 9 South. 31; Mayor, etc., of Baltimore v. Eschbach, 18 Md. 276; State v. Railroad Co., 80 Minn. 108, 83 N. W. 32. 50 L. R. A. 656. Cf. City of Chicago v. Williams, 182 111. 135, 55 N. E. 123; Kerr v. Belief ontaine, 59 Ohio St. 440, 52 N. E. 1024; Mayor, etc., of Baltimore v. Musgrave, 48 Md. 272, 30 Am. Rep. 458; Parsel v. Barnes, 25 Ark. 261; Moore V. New York, 73 N. Y. 238, 29 Am. Rep. 134. § 1)3) EMPLOYES. JiST they may not go in corporate affairs. If they transgress these lawful boundaries they cannot bind the corporation, but may thereby incur personal liability to third parties.^ ''^ They are not, however, liable to the corporation for these ultra vires acts.^^* EMPLOYES. 93. An employ^ of a municipal corporation, being engaged in tlie performance of a service purely ministerial, is not an officer nor an agent of the municipality, and cannot place it under obligation or liability. The great mass of persons rendering service to a municipal- ity are employes only, such as clerks, laborers, mechanics, fire- men, and the like.^''* Their positions are permanent; the duties those of a subordinate. They constitute the rank and file of municipal forces, acting always in obedience to fixed rules or the orders of their superiors. They make no con- tracts for the municipality, and exercise no municipal discre- tion; and the only mode by which they may subject it to lia- bility is that whereby private corporations may be rendered liable for the acts of their employes,^'' ^ to wit, by some act 172 This will occur, however, only when such third persons are actually ignorant of the want of power, and the officers take unfair advantage of them, or practice fraud upon them. Otherwise they have been repeatedly adjudged not liable personally in ultra vires contracts made by them. Barnes v. Phihidelpliia, 3 Phila. (Pa.) 409; Mayor, etc., of Baltimore v. Eschbach, 18 Md. 27G; Duncan v. Niles. 32 111. 532, 83 Am. Dec 2!)3; Tucker v. Justices. 35 N. C. 134; Lyon v. Irish, 58 Mich. 518, 25 N. W. 502; Houston v. Clay County, IS Ind. 39G; Ogden v. Raymond, 22 Conn. 379. 58 Am. Dec. 429; Huth- sing V. Bousquet (C. C.) 2 McCrary, 152, 7 Fed. 8:33. 173 Houston V. Clay County, 18 Ind. 39G; Nickersou v. Dyer, 105 Mass. 320; Davis v. Philadelphia. 3 Phila. (Pa.) 374. 174 Trainer v. Board, 89 Mich. 102, 50 N. W. 809. 15 L. R. A, 95; McNulty V. New York. GO App. Div. 2.50, 70 N. Y. Supp. 133. 1T5 Clark, Priv. Corp. § G9; Kinuare v. Chicago, 171 111. 332, 49 N. E. .536; Stcpluiui v. Manilov.oc. 89 Wis. 4G7, G2 N. W. 17u; HAYES V. OSHKOSH, 33 Wis. 314, 14 Am. Rep. 7G0; Knight v. 288 OFFICERS, AGENTS, AND EMPLOYES. (Ch. 11 done for the municipality within the apparent scope of their employment which causes actionable injury to another, and then only in the performance of strictly municipal functions of the corporation. Employes are liable to the municipality under the same rules and restrictions as municipal officers, and are generally within civil service regulations. Philadelphia, 15 Wkly. Notes Cas. (Pa.) 307; Hafford v. New Bed- ford, 16 Gray (Mass.) 297; Alexander v. Vicksburg, 68 Miss. 564, 10 South. 62; Kies v. Erie, 135 Pa. 144, 19 Atl. 942, 20 Am. St. Rep. 867. § 94) coNTBACxa. 28d CHAPTER Xn. CONTRACTS. 94. Municipal Contracts. 95. Ultra Vires. 96. Estoppel. 97. Contracts Partially Ultra Vires. 98. Implied Promise. 99. Subject-Matter. 100. Contracting Agencies. 101. Mode of Contracting. 102. Letting of Contracts. 103. Illegal Contracts. 104. Annulling Contracts. 105. Impairing Obligations. 106. Money Contracts. MUNICIPAI. CONTRACTS. 94. Municipal contracts possess the same essential elements, and are executed, enforced, rescinded, and reformed nnder the same general doctrines, as those governing contracts betx^een individuals. The fundamental doctrines of the law of contracts, and es- pecially those governing the contracts of corporations as set forth in the standard text-books and declared and enforced by the courts, are generally applicable to all municipal con- tracts ; they need not be here stated. Within the scope of its charter powers and in the manner permitted by law, a munici- pal corporation may enter into contract relations with other persons, having the same general effect and obligation as those of a private corporation or a natural person,^ and for 1 1 Dill. Mun. Corp. § 935 ; Ryan v. Paterson. 66 N. J. Law, 533. 49 Atl. .587; City of Louisville v. President. 15 B. Mun. (54 Ky.) G42; The Maggie P., 25 Fed. 202; Pullman v. New York. -M Barb. (N. Y.) 169. Ij^g.Corp. — 19 Ii90 CONTRACTS. (Ch. 12 breach of such contract it will incur similar liability." The courts will enforce such contracts and redress the breach there- of, either for or against the municipal corporation, in the same manner and to the same extent as other contracts between other classes of persons.' These general doctrines of law, therefore, are to be considered and applied in formulating, in- terpreting, and enforcing municipal contracts, and in protect- ing rights and redressing wrongs of the parties thereto. Such contracts are usually written and signed on behalf of the mu- nicipality by the duly constituted authority; but when prop- erly authorized, a valid municipal contract may be made by parol ; * and there are many cases giving redress against mu- nicipal corporations for breach of implied contracts of the municipaUty.* 2 Wells V. Atlanta, 43 Ga. 67; City of Galveston v. Loonie. 54 Tex 517; Western Sav. Fund See. v. Philadelphia, 31 Pa. 175, 72 Am. Dec. 730 ; City of New Orleans v. Churchwardens, 11 La. Ann. 244. 3 City of Buffalo v. Bettinger, 76 N. Y. 393 ; City of Galena r. Cor- with. 48 111. 423, 95 Am. Dec. 557. 4 Abby V. Billups, 35 Miss. 618, 72 Am. Dec. 143 ; Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; C^ty of Selma v. Mullen, 46 Ala. 411: City of Detroit v. Jackson, 1 Doug. (Mich.) 106 ; Baker v. Johnson Co., 33 Iowa, 151 ; FANNING v. GREGOIRE. 16 How. (U. S.) 524. 14 L. Ed. 1043 ; Reed v. Orleans, 1 Ind. App. 25, 27 N. E. 109 ; Dun- combe V. Ft. Dodge, 38 Iowa, 281. 5 City of Bryan v. Page. 51 Tex. 532, 32 Am. Rep. 637 ; Maher v. Chicago, 38 111. 266; Peterson v. Mayor, 17 N. Y. 449; Frankfort Bridge Co. v. Frankfort, 18 B. Mon. (Ky.) 41 ; City of Davenport v. Insurance Co., 17 Iowa, 276; Brush Electric Light & Power Co. v. City Council, 114 Ala. 433, 21 South. 960 ; Buck v. Eureka, 124 Cal. 61, 56 Pac. 612; Fox v. Richmond, 40 S. W. 251, 19 Ky. Law Rep. 326 ; City of Newport News v. Potter, 122 Fed. 321. 58 C C. A. 483 ; Tufts V. Chester, 62 Vt. 353, 19 Atl. 988; Memphis Gaslight Co. v. Memphis, 93 Tenn. 612, 30 S. W. 25. Where the city charter fails to provide for furnishing water and light, it has an implied power to contract for such light and water. Lake Charles Ice, Light & Water Works Co. v. Lake Charles, 106 La. Ann. 6.5, 30 South. 289. See, also. Tucker v. Virginia City, 4 Nev. 20 ; Port Jervis Water Works Co. V. Port Jervis, 151 N. Y. 111. 45 N. E. 388; Garrison v. Chicago, 7 Biss. 480, Fed. Cas. No. 5.2,55. § 95) ULTRA VIRES. 291 ULTRA VIRES. 95. Tlie capacity of the municipal corporation to make a bind- ing contract is dependent upon powrer, express or im- plied, conferred upon it by its cliarter; and contracts made by a municipality repugnant to or outside of the ■cope of its charter are ultra vires and void. Much confusion and discord appears in the decisions and text-books on corporations upon the doctrine of "ultra vires," resulting chiefly from the use of this phrase in different senses. It has been used to characterize not only acts which are repug- nant to or beyond the corporate powers,*' but also acts beyond the authority of the officers or agents doing them,'' and acts done by a majority of stockholders in disregard of the rights of the minority.* To avoid, if possible, this confusion, the phrase "ultra vires" will be used in this chapter in the sense declared to be proper by a distinguished federal judge in the following lucid and comprehensive statement : "Two propo- sitions are settled : One is that a contract by which a cor- poration disables itself from performing the functions and duties undertaken and imposed by its charter is, unless the state which creates it consents, ultra vires * * * ; the other is that the powers of a corporation are such, and such only, as its charter confers, and an act beyond the measure of these powers, as either expressly stated or fairly implied, is ultra vires. * * * These two propositions embrace the whole doctrine of ultra vires ; they are its alpha and omega." ^ To escape the apparent injustice of enforcing this doctrine in regard to the dealings and doings of private corporations, the « Reese, Ultra Vires, § 17, 7 Demarest v. New Barbadoes Tp., 40 N. J. Law, 604. 8 Reese, Ultra Vires, § 17. 9 Mr. Justice Brewer, dissenting in Chicago, R. I. & P. R. Co. v. Railway Co., 47 Fed. 15. Properly, ultra vires means beyond the powers of the corporation itself. Camden & A. R. Co. v. Landing Co.. 48 N. J. Law, 530, 7 Atl. 523. 292 CONTRACTS. (Ch. 13 courts have apparently in many instances either ignored or evaded its full force and meaning, and have thus shown "how hard cases can make bad law." ^° This has not been so, how- ever, with regard to contracts of public corporations.^^ Gen- erally, the courts have recognized as a truism that what a mu- nicipality has no power to do it has not done merely because it tried to do it, and have accordingly refused to give legal effect to ultra vires contracts.^* Illustrations. And so it has been declared that contracts by which a municipality gave away or exchanged city streets for other property,^^ offered a reward for the apprehension of a per- son,^* borrowed money to pay the expenses of an election contest over the removal of a county seat,^* or to make loans and donations to colleges,^® are ultra vires, and not 10 Wright V. Pipe Line Co., 101 Pa. 204, 47 Am. Rep. 701 ; Towers Excelsior & Ginnery Co. v. Inman, 96 Ga. 506. 23 S. E. 418 ; Braaiey V. Ballard, 55 111. 413, 8 Am. Rep. 656 ; Portland Lumbering & Mfg. Co. V. East Portland, 18 Or. 21, 22 Pac. 536, 6 L. R. A. 290 ; Bi.ssell V. Railroad Co., 22 N. Y. 259; Dewey v. Railway Co., 91 Micli. 351. 51 N. W. 1063 ; Wright v. Hughes, 119 Ind. 324, 21 N. E. 907, 12 Am. St. Rep. 412. 11 1 Dill. Mun. Corp. § 457. 12 THOMAS V. RICHMOND, 12 Wall. (U. S.) 349, 20 L. Ed. 453; Seibrecht v. New Orleans, 12 La. Ann. 496; HAGUE v. PHILA- DELPHIA. 48 Pa. 527; CLARK v. DES MOINES, 19 Iowa, 199. 87 Am. Dec. 423 ; Western College of Homeopathic Medicine v. Cleve- land, 12 Ohio St, 375; Burrill v. Boston, 2 Cliff. 590, Fed. Cas. No. 2,198; City of Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. 361, 27 L. Ed. 669; McDonald v. Mayor, 68 N. Y. 23, 23 Am. Rep. 144; Stetson V. Kempton, 13 Mass. 272, 7 Am. Dec. 145; Mitchell v. Rock- land, 41 Me. 363, 66 Am. Dec. 252. 13 Beebe v. Little Rock, 68 Ark. 39, 56 S. W. 791. 14 Hanger v. Des Moines, 52 Iowa, 193, 2 N. W. 1105, 35 Am. Rep. 266 ; Patton v. Stephens, 14 Bush (Ky.) 324 ; City of Winchester v. Redmond, 93 Va. 711, 25 S. E. 1001, 57 Am. St. Rep. 822. Contra, Borough of York v. Forscht, 23 Pa. 391. 15 Myers v. Jeffersonville, 145 Ind. 431, 44 N. E. 452. le City of Fulton v. College, 1.5S 111. 3C3, 42 N. E. 138. § 96) ULTRA VIRES. 293 enforceable at law. So, likewise, of a purchase by a city of a right of way for a railroad ; ^^ a contract granting a monopoly of the streets to a water company;^* promising money to aid in the erection of a county courthouse, or to do- nate its real estate for that purpose ; ^® also county bonds issued without legislative authority; ^° and a promise not to extend a street in a city.^^ These and many other similar contracts the courts have refused to enforce or recognize, because they were illegal restrictions of the public power and duty of the m.unicipality, or because they were ^^eyond the scope of the municipal powers. Some earlier cases were not in accord with these decisions, but supported the unlawful contract upon the doctrine of estoppel, so often applied formerly to the contracts of private corporations.-- But there is at present general concurrence in the doctrine that the law will not recognize or enforce a municipal contract which it does not authorize.^'' Parties, therefore, seeking recompense for money loaned, ma- terial furnished, or labor done for a municipal corporation un- der an ultra vires contract, do not sue for breach of the con- tract or seek specific performance thereof, but seek recompense either upon the theory of an implied contract and assumpsit, or under some doctrine of equity.^* 17 Straban v. Malvern. 77 Iowa, 454, 42 N. W. 369. 18 Syracuse Water Co. v. Syracuse. 116 N. T. 167, 22 N. E. 381, 5 L. R. A. 546. 19 Russell V. Tate, 52 Ark. 541, 13 S. W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193 ; Brockman v. Creston, 79 Iowa, 587, 44 N. W. 822. 20 Town of CONCORD v. ROBINSON, 121 U. S. 165. 7 Sup. Ot. 937, 30 L. Ed. 885. 21 Grand Rapids v. Railroad Co., 66 Mich. 42, 33 N. W. 15. 2 2 Clark, Priv. Corp. pp. 179-183, § 67. 23 City of Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118 ; Cow- drey V. Caneadea, 16 Fed. 532; City of Ft. Wayne v. Lebr, 8S Ind. 62: «r-li.np1df-r v. :Menasha (Wis.) 05 N. W. 94. «4 HITCHCOCK V. GALVESTON. 96 U. S. 341. 24 L. Ed. 6.-)0 ; Schneider v. Menasha, supra; Thomson v. Town of Elton, 109 Wis. 589, 85 N. W. 425. i594 CONTRACTS, (Ch. 12 ESTOFPEI.. 96. Municipal contracts wliicli are within the scope of corpo- rate powers, but w/hicli are defective because of irreg- ularity in the method of their execution, or unlaw^ful because of a secret purpose of the corporation, are not void, but are subjects of ratification and estoppel. Irregular contracts, or contracts within the scope of cor- porate powers, but made for some private purpose not permit- ted by the charter, have often been called "ultra vires con- tracts," but they are not within the definition given in the last section. Such contracts may be originally invalid because of insufficient notice, defective execution, informality, or some other irregularity in the exercise of power confessedly pos- sessed by the corporation ; ^"^ or such unquestioned power may be used by the corporation secretly for some purpose for which it has not been granted, as to borrow money and execute bonds for payment of current expenses of the municipality when the lender supposed it was to be applied to lawful pur- poses.^® Such contracts being within the apparent scope of the corporate powers, and their defects not being obvious nor known to the other party, are generally held to be voidable only upon such terms and conditions as apply to rescission.^^ x^nd so, if the corporation under a contract of this kind has obtained value from the other party, it cannot avoid or rescind the contract except upon the condition of complete restitution 26 MOORE V. NEW YORK, 73 N. Y. 238, 29 Am. Rep. 134 ; MINERS' DITCH CO. V. ZELLERBACH, 37 Cal. 543, 99 Am. Dec. 300 ; North- west Union Packet Co. v. Shaw, 37 Wis. 655, 19 Am. Rep. 781 ; HITCHCOCK V. GALVESTON, sxipra. 2« Curtis V. Leavitt. 15 N. Y. 9 ; Mayor, etc., of City of Nashville V. Ray, 19 Wall. (U. S.) 4(58, 22 L. Ed. 164; Ganse v. Clarksville, 5 Dill. 165, Fed. Cas. No. 5,275; Robertson v. Breedlove, 61 Tex. 316; Thomas v. Port Huron, 27 Mich. 320. 2T Clark, Priv. Corp. § 67. Washington Female Seminary v. Wash- ington Borough, 18 Pa. Super. Ct. 555; United States Waterworks Co. V. Borough of Dubois, 176 Pa. 439, 35 Atl. 251. § 96) ESTOFFEL. 295 or recompense ; •" and if the municipality recognizes such contract, with full knowledge of the facts, it may thus waive objection and ratify the same and become bound thereby;^' as, where officers or a board having no authority therefor make a contract for a city within the scope of its charter powers, the common council or other board empowered to make such contract may subsequently adopt or ratify the same,*" just as a natural person may ratify the unauthorized contract of his agent. But some cases hold that such municipal contract is void if it be made for a purpose or object not permitted by the charter, as, for instance, if the corporation, without special authority, borrow money for the purpose of paying pre-exist- ing indebtedness, such contract is void.*^ Estoppel. But it has been declared that the doctrine of ultra vires does not absolve municipal corporations from the principle of common honesty.^^ And so "where an act in its external aspects is within the general powers of a corporation, and is 2 8 MOORE V. NEW YORK, 73 N. T. 238, 29 Am. Rep. 134; Marble Co. V. Harvey, 92 Tenn. 115, 20 S. W. 427, 18 L. R. A. 252, 36 Am. St. Rep. 71 ; CENTRAL TRANSP. CO. v. PALACE CAR CO., 139 U. S. 60, 11 Sup. Ct. 478, 35 L. Ed. 55 ; Chapman v. Douglas County, 107 U. S. 349, 2 Sup. Ct. 62, 27 L. Ed. 378 ; Leonard v. Canton, 35 Miss. 189; City of Ft. Scott v. Brokerage Co., 117 Fed. 51, 54 C. C. A. 437; City of Chicago v. Milling Co.. 97 111. App. 651 ; Id., 63 N. E. 1043 ; City of Newport v. Phillips (Ky.) 40 S. W. 378; Warner v. New Orleans, 87 Fed. 829, 31 C. C. A. 238 ; Ohio Life Ins. & Trust Co. v. Trust Co., 11 Humph. (Tenn.) 1, 53 Am. Dec. 742; Paul v. Kenosha. 22 Wis. 266, 94 Am. Dec. 598 ; City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 U Ed, 238; Thomas v. Port Huron, 27 Mich. 323. 2» Albany City Nat Bank v. Albany, 92 N. Y. 363; City of Pliila delphia v. Hays. 93 Pa. 72 ; Lincoln v. Stockton, 75 Me. 141 ; Devers V. Howard, 88 Mo. App. 253. »o City of Little Rock v. Bank, 98 U. S. 308, 25 L. Ed. 108. 3^ AGAWAM NAT. BANK v. SOUTH HADLEY, 128 Mass. 503. 32 Bass Foundry & Machine Works v. Commissioners, 115 Ind. 234, 17 N. E. 59a 296 CONTRACTS. (Ch. 12 only unauthorized because it is done with a secret unauthorized intent, the defense of ultra vires will not prevail against a stranger who in good faith dealt with it without notice of such intent." ^^ Also where the other contracting party has in good faith performed his part of the contract, the municipal- ity will be held estopped from pleading the shortcomings or faults of its own officers or agents in all cases where the con- tract is not repugnant to or beyond the scope of the corporate power.'* But if the contract be ultra vires in the true sense, then neither estoppel nor ratification will prevent the munici- pality from pleading ultra vires, and thereby defeating an ac- tion brought upon the contract.^ ^ So, likewise, a party sued by a municipaUty upon an unauthorized contract made with it may rely upon the doctrine of ultra vires to defeat the action.'* CONTRACTS PARTIALLY ULTRA VIRES. 97. A contract is not of necessity entirely invalid becanse a portion of it is ultra vires. In sncli case, if the por- tions of tlie contract xrliicli are xirithin tlie charter po^vers are separable from the ultra vires portion, the latter only is void. This distinction has been taken in many cases, and must be regarded as settled law. In a leading case the city had made a contract for paving its streets, to do which it was fully au- thorized, and promised to give its negotiable bonds in pay- s' 2 Dill. Mim. Corp. § 936. 34 HITCHCOCK V. GALVESTON, 96 U. S. 341, 24 L. Ed. 659 ; Thomas v. Richmond, 12 Wall. (U. S.) 349, 20 L. Ed. 453; London & N. Y. Land Co. v. Jellico. 103 Tenn. 320, 52 S. W. 995 ; MOORE v. NEW YORK. 73 N. Y. 23S, 29 Am. Rep, 134 ; Sharp v. Teese, 9 N. J. Law, 352, 17 Am. Dec. 479. 85 Mor. Priv. Corp. § 619; Ellis v. City of Cleburne (Tex.) 35 S. W. 495; Keen v, Coleman, 39 Fa. 299, 80 Am. Dec. 524. 86 Thomas v. Railroad Co., 101 U. S. 71, 25 L. Ed. 950; Montgom- ery City Council v. Plank Road Co., 31 Ala. 76; Hodges v. Buffalo, 2 Denio (N. Y.) 110; Peiinpyivania, D. & M. Steam Nav. Co. v. Dan- dridge, 8 Gill & J. (Md.) 24 S, 319, 29 Am. Dec. 543. § 98) IMPLIED PROMISE. 297 merit therefor; but for this it had no authority. The work was completed, but the city refused to execute its bonds, and thereupon the contractors brought an action for damages for breach of contract against the city, which pleaded ultra vires. The court ruled that, though specific performance might not be decreed in behalf of the contractors, yet the action for dam- ages was maintainable. The city had power to contract for the doing of the work, and could not escape liability therefor because it had promised payment by unlawful means. "It matters not," said the court, "that the promise was to pay in a manner not authorized by law. If payment cannot be made in bonds because their issue is ultra vires, it would be sanc- tioning rank injustice to hold that payment may not be made at all ; such is not the law. The contract between the parties is in force so far as it is lawful." ^^ So, likewise, where a city having power to provide for gas contracted therefor with a private corporation, but without power so to do assumed to grant the gas company an exclusive franchise, in this case the court declared the true rule to be that "when a part of a divisible contract is ultra vires, but neither malum in se nor malum prohibitum, the remainder may be enforced, unless it appears from a consideration of the whole contract that it would not have been made independently of the part which was void." '' IMPLIED PROMISE. 98. A municipality may be liable in assumpsit upon an im- plied contract to pay value for ^^irliat it lias received, ^here it lias made no express prozaise therefor, or has made an invalid promise which will not sustain an action. In a leading case it was declared that "the doctrine of im- plied municipal liability applied to cases where money or other 37 HITCHCOCK V. GALVESTON, 96 U. S. 341, 24 L. Ed. 0.59. 88 Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. 271, 22 O. C. A. 171, 34 L. R. A. 518. 298 CONTRACTS. (Ch. 12 property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same."^* This doctrine has been generally enforced in the American courts, both state and federal ; *° but it must not be inferred that the law will imply that of a contract which is strictly ultra vires, nor that the courts will raise such an im- plied promise as may not be expressly made.*^ In general, however, whenever a municipal corporation receives money or property, or accepts the benefit of labor or services ren- dered to it, it is bound in law to make recompense therefor.*^ As we have seen in the last section, its promise to pay in bonds which it has no authority to issue cannot be enforced ; *^ but an action of assumpsit will lie to recover judgment for the amount promised in bonds, or quantum meruit, or quantum valebant.** The same action may also be brought where no 89 ARGENTI V. SAN FRANCISCO, 16 Cal. 255. 40 MARSH V. FULTON COUNTY, 10 Wall. (U. S.) 676, 19 L. Ed. 1040; CITY OF LOUISIANA v. WOOD, 102 U. S. 294, 26 L. Ed. 153; Schipper v. Aurora, 121 Ind. 1.54, 22 N E. 878, 6 L. R. A. 318. *i Agawam Nat. Bank v. South Hadley, 128 Mass. 503; Brush Electric Light & Power Co. v. City Council, 114 Ala. 433, 21 South. 960 ; Buck v. Eureka, 124 Cal. 61, 56 Pac. 612 ; Burrill v. Boston, 2 Cliff. 59G, Fed. Cas. No. 2,198. A municipal corporation does not be- come liable for a debt for substituting the fiction of an implied con- tract for an express contract, void for noncompliance with the tei'ms of a statute. Moss v. Ridge Tp. (Ind.) 67 N. E. 460. 42 ARGENTI V. SAN FRANCISCO, 16 Cal. 255. If one deals with a municipal corporation in respect to a matter beyond its corporate power, he can have no relief either at law or in equity, though in the absence of prohibition be may obtain relief, if not guilty of more than constructive wrong, so far as his money or property shall have been used by the municipality for legitimate corporate purposes. Balch V. Beach (Wis.) 95 N. W. 132. A city, like an individual or private corporation, may bind itself by implied contracts. City of Austin V. Bartholomew, 307 Fed. 349, 46 C. C. A. 327; Nalle v. Aus- tin, Id. ; Wentiuk v. Passaic Co., 66 N. J. Law, 65, 48 Atl. 609. 4 3 HITCHCOCK V. GALVESTON, 96 U. S. 341, 24 L. Ed. 659. 44 CITY OF LOUISIANA v. WOOD, 102 U. S. 294, 26 L. Ed. 153; § 98) IMPLIED PROMISE. 299 fixed compensation has been agreed upon, or where no ex- press contract of any kind has been made.*^ In short, the doc- trines of assumpsit are applicable to municipalities as well as to natural persons, and the action may be maintained on any of the common counts, "not from any contract entered into on the subject, but from the general obligation to do justice, which binds all persons, whether natural or artificial." *® In the first case above quoted the following distinctions, however, were taken : "The money must have gone into her treasury, or been appropriated by her; and, when it is property other than money, it must have been used by her or been under her control. But with reference to services rendered, the case is different. Their acceptance must be evidenced by ordinance, or express corporate action to that eflect. If not originally authorized, no liability can attach upon any ground of implied contract; the acceptance, upon which alone the obligation to pay could arise, would be wanting." *'' This discrimination in favor of property and money over labor and other services does not meet with unanimous approval by the courts,*^ and in Massachusetts it has been held that one who loans money to a town treasurer in a manner not authorized by statute has MARSH V. FULTON CO., 10 Wall. (U. S.) 6TG, 19 L. Ed. 1040; Thomas V. Port Huron, 27 Mich. 320; Maher v. Chicago, 3S 111. 266; Allegheny V. McClurkan, 14 Pa. 81; Higgins v. Water Co., 118 Cal. 524, 45 Pac. 824 ; Schipper v. Aurora, 121 Ind. 154, 22 N. E. 878, 6 L. R. A. 318 ; Marble Co. v. Harvey, 92 Tenn. 125, 20 S. W. 427, 18 L. R. A. 252. 36 Am. St. Rep. 71. *» Fox V. Richmond, 40 S. W. 251, 19 Ky. Law Rep, 326. Where a municipal corporation retains benefits under a contract which it has i)ower to make, but which is void because irregularly executed, a recovery may be had on a quantum meruit without showing a ratification by the municipal corporation. Lincoln Land Co. v. Vil lage of Grant, 57 Neb. 70. 77 N. W. .349. 46 MARSH V. FULTON CO., 10 Wall. (U. S.) 670, 19 L. Ed. 1040. 4T AROENTI A'. SAN FRANCISCO. 16 Cal. 2."."). «8 1 Dill. Mun. Corp. § 464; Maher v. Chicago, 38 IlL 266; Peterson V. Mayor, 17 N. Y. 45a 300 CONTRACTS. (Ch. 12 no right of action against the town to recover it, although the money was used in paying the dell: of the town.** SUBJECT-MATTSK. 99. Municipal contracts, xelietlier made nnder express, im- plied, or inherent poxeer to contract, must necessarily be confined to sucli subjects only as are usually proper and essential for performance of tbe corporate func- tions of tbe municipality. It is obvious that a municipal corporation may not engage in business and make contracts upon all sorts of subjects, as may a natural person."" Nor may it engage in profit-making, like a private corporation, except in such municipal affairs as are specially authorized. °^ The general power to contract and be contracted with, usually expressed in the municipal charter, is impliedly restricted to solely municipal purposes.^^ 48AGAWAM NAT. BANK v. SOUTH HADLEY, 128 Mass. 503. And where a mayor of a city, without authority, executed a contract on behalf of the city, the city was held not estopped to deny the same, it not having received any benefits thereunder. Indiana Road- Mach. Co. V. Sulphur Springs (Tex.) 63 S. W. 908. But where one in good faith loaned money to a town, to be used for a corporate purpose, taking its bonds therefor, he was held entitled to recover, in an action for money had and received, where the bonds were void for want of power in the town to issue them. Fernald v. Town of Oilman. 123 Fed. 797. 50 1 Dill Muu. Corp. § 443; Village of Kent v. Cut-Glass Co., 10 Ohio Cir. Ct. R. 629. 51 Goodrich v. Detroit, 12 Mich. 279; City of Galena v. Corwith, 48 111. 423, 95 Am. Dec. 557 ; Smith v. Stephan, 66 Md. 381, 7 Atl. 561, 10 Atl. 671 ; City of Galveston v. Loonie, 54 Tex. 517. Herein are public utilities, such as water and light. 52 Wells V. Atlanta, 43 Ga. 67; Miller v. Milwaukee, 14 Wis. 642; City of Wyandotte v. Zeitz, 21 Kan. 649. A public corporation cannot make a contract to provide an entertainment for its citizens and guests. Commonwealth v. Gingrich, 21 Pa. Super. Ct. 286. The public purposes for which cities may incur liability will not be re- stricted to those for which precedents can be found, but the test is § 100) CONTRACTING AGENCIES. 301 A municipality, therefore, though it may contract with regard to not only its strictly public functions, but also with regard to such municipal matters as lights, water, and power for the use of itself and its inhabitants, has no authority to embrace within its contracts such subject-matter as manufacturing,''* extraterritorial railway construction and operation,^* mer- chandising,^^ nor to become surety, °" nor issue a circulating medium,'''' unless specially conferred, CONTRACTING AGENCIES. 100. Municipal contracts are necessarily made for the corpo- ration by its duly constituted and authorized agencies, Mcrhich may be eitber boards or individuals. The common council is the proper general agent of the mu- nicipality to express the agreement essential to a valid con- tract,^* and such agreement is usually expressed either by ordinance or resolution upon the municipal record. The for- whether the work is required for the general good of all the in- habitants of the city. Sun Printing & Publishing Ass'n v. New York. 8 App. Div. 230, 40 N. Y. SvfpT?. 607 ; McBean v. Fresno, 112 Cal. 159, 44 Pac. 358, 31 L. R. A. 794, 53 Am. St. Rep. 191. 53 Cook V. Manufacturing Co., 1 Sneed (Tenn.) 69S; Starin v. Genoa, 23 N. Y. 439 ; Pitzman v. Freeburg, 92 111. Ill ; Reed v. Anoka, 85 Minn. 294. 88 N. W. 981. 54KELLEY V. MILAN, 127 U. S. 139, 8 Sup. Ct. 1101, 32 L. Ed. 77; Norton v. Dyersburg, 127 U. S. 160, 8 Sup. Ct. 1111, 32 L. Ed. 85 ; Welch v. Post, 99 111. 471. But this power has often been spe- cially conferred by statute, notably upon the city of Cincinnati to construct the Cincinnati Southern Railway outside of Ohio. See. also, Nichol v. Nashville, 9 Humph. (Tenn.) 252. 65 1 Dill. Mun. Corp. § 101. 56 CLARK V. DES MOINES, 19 Iowa, 199, 87 Am. Dec. 423 ; Lou- isiana State Bank v. Navigation Co., 3 La. Ann. 294. 57 Thomas v. Richmond, 12 Wall. (U. S.) 349. 20 L. Ed. 453 ; Par- sons V. :Monmouth. 70 Me. 262 ; Cheeney v. Brookfield, 60 Mo. 53 ; State Board of Education v. Aberdeen, 56 Miss. 518; City of Chicago V. Eraser. 60 111. App. 404. 68 1 Dill. Mun. Corp. §§ 242, 2.59, 270. 302 CONTRACTS. (Ch. 12 mal execution of the memorandum or indenture of contracts is usually committed to the mayor and recorder or other ap- propriate executive officer, ^^ but in the larger cities the power to make and execute municipal contracts is usually conferred upon special boards, bureaus, or officers having special author- ity and superintendence over particular corporate functions and matters.'" With regard to these the fundamental rule is that such boards, bureaus, and officers are special agents only, and have no power to make contracts binding upon the mu- nicipality outside the limitation of their particular functions.*^ Moreover, persons contracting with the municipality are bound to take notice of the limits of the agent's authority ; "^ and a contract made by a public agent within the apparent scope of his powers does not bind his principal in the absence of actual authority."' But if the contract is made by the common coun- cil as general agent of the municipality, and within the scope of the corporate powers, express or implied, the authority as 59 Fehler v. Gosnell, 99 Ky. 380, 35 S. W. 1125. 60 People V. Town, 1 App. Div. 127, 37 N. Y. Snpp. 864 ; Elliott, Mun. Corp. § 252. 61 New Decatur v. Berry, 90 Ala. 432, 7 South. 8.38, 24 Am. St. Rep. 827 ; City of St. Louis v. Davidson, 102 Mo. 149. 14 S. W. 825, 22 Am. St. Rep. 764; Bonesteel v. Mayor, 22 N. Y. 162; Hudson v. .Marietta, 64 Ga. 286 : Starkey v. Minneapolis, 19 IMinn. 203 (Gil. 166) ; Gates V. Hancock, 45 N. H. 528 ; Sullivan v. Leadville, 11 Colo. 483, 18 Pac. 736. 6 2 State V. Railway Co., 80 Minn. 108. 83 N. W. 32, 50 L. R. A. 656 ; Parsel v. Barnes, 25 Ark. 261 ; Kerr v. Bellefontaine, 59 Ohio St. 446, 52 N. E. 1024; Cedar Rapids Water Co. v. Cedar Rapids, 117 Iowa. 250, 90 N. W. 746. Persons contracting with a municipal corporation are bound to know whether the municipality has power to make such contract. McAleer v. Angell, 19 R. I. 688, 36 Atl. 588 ; Raton Water- works Co. V. Raton, 9 N. M. 70, 49 Pac. 898. « 3 Hodges V. Buffalo, 2 Denio (N. Y.) 110; Rensselaer County Sup'rs V. Bates. 17 N. Y. 242; Tippecanoe Co. v. Cox, 6 Ind. 403; Trustees of Belleview v. Hohn, 82 Ky. 1 ; Willoughby v. City Coun- cil, 51 S. C. 462, 29 S. E. 242; Town of Madison v. Newsome, 39 Fla. 149, 22 South. 270; Korr v. Bellefontaine, supra; Bardsley V. Sternberg, 17 Wash. 243, 49 Pac. 499. § 100) CONTRACTING AGENCIES. 303 agent may be presumed.'* The municipality is not bound by the erroneous opinion or false representation of the agent with regard to his authority; ®^ and it has been held that the pre- sumption of his authority will not be indulged, nor will the contract be made binding from the mere silence or acquies- cence of the citizens or the common council of a municipality."' Ratification. The same rules apply to ratification as to the making of con- tracts. No supposed ratification of an unauthorized munici- pal contract is binding unless such ratification is made by the municipal agency authorized to make such contract.®'^ And accordingly it has been held that where a mayor assents to a compromise of a pending suit against the city, ratifying the contract sued upon, which is entered upon the minutes of court and the suit thereupon dismissed, this formal ratifica- tion does not bind the municipality, because the mayor had no authority either to make or ratify such contract.®* The power to ratify belongs generally to the common council, but it may be made by the particular municipal agency having power to make the original contract.^* e* This presiimption results from the fact of the general authority of the council to execute all contractual powers of the municipality, not expressly withheld from it, and conferred upon special agencies. 6 5 Delafield v. Illinois, 2 Hill (N. Y.) 159; MINERS' DITCH CO. V. ZELLERBACH, 37 Cal. 543, 99 Am. Dec. 300; City of Baltimore. V. Reynolds, 20 Md. 1, 83 Am. Dec. 535; Farnsworth v. Pawtucket, 13 R. I. 82; Overseers of Poor of Norwich v. Pharsalia, 15 N. Y. 341; Inhabitants of Congressional Tp. No. 11 v. Weir, 9 Ind. 224; Trustees of Belleview v. Hohn, 82 Ky. 1. 86 Loker v. Brookline, 13 Pick. (Maps.) 343 ; Allegheny City v. Mc- Clurkan, 14 Pa. 81. But see Rogers v. Burlhigton, 3 Wall. (U. S.j 654, 672, 18 L. Ed. 79; Bissell v. Jefferson ville, 24 How. (U. S.) 300, 16 L. Ed. 664; State v. Van Home, 7 Ohio St. 331; Butler v. Dunham, 27 111. 477. «7 1 Dill. Mun. Corp. § 405. 68 Jackson Electric Ry.. Light & Power Co. v. Adams, 79 Miss. 408. 30 South. 694; City of Tyler v. Ad:ims (Tex.) 62 S. W. 119. 69 Delaiield v. Illinois, 2 Hill (N. Y.) 159; HAGUE v. PHILA- 304 CONTRACTS. (Ch. 12 MODE OF C:::7TR ACTING. 101. Wlierever the mode of 3iei:oiiating and executing a mu- nicipal contract is plainly and specially prescribed and limited, sucli mode is exclusive and must be substan- tially pursued; else tbe municipality will not be bound by tbe contract. Explicit restrictions and directions as to the manner of ne- gotiating and executing municipal contracts are generally to be found in municipal charters or the statutes authorizing par- ticular contracts. These provisions are inserted as safeguards against public extravagance and private greed. A few cases have held such instructions to be directory only,'^** but the great body of the decisions concur in declaring such statutory directions as to the method and form of negotiating and exe- cuting municipal contracts to be mandatory and peremptory.''^ The language of Chief Justice Marshall on this subject has met with general judicial approval : "The act of incorporation is to become an enabling act. It gives them all the power they possess. It enables them to contract, and when it prescribes DELPHIA, 48 Pa. 527; MARSH v. FULTON COUNTY, 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Packard v. Hayes, 94 Md. 233, 51 Atl. 32. 70 Kelley v. Mayor, 4 Hill (N. Y.) 263; Maddox v. Graham, 2 Mete. (Ky.) 56. 71 City of Goldsboro v. Moffett, 49 Fed. 213; McDONALD v. MAYOR, 68 N. Y. 23, 23 Am. Rep. 144; Zottman v. City and County of San Francisco, 20 Cal. 96, 81 Am. Dec. 96; City of Bryan v. Page, 51 Tex. 532, 32 Am. Rep. 637; Carron v. Martin. 26 N. J. I.aw, 594, 69 Am. Dec. 584; Littlefield v. Railroad Co., 146 Masa 268, 15 N. E. 048; ^Montgomery County v. Barber, 45 Ala. 237; City of Terre Haute v. Lake, 43 Ind. 4S0; State v. Marion County, 21 Kan. 419; Francis v. Troy, 74 N. Y. 338; City of Baltimore v. Rey- nolds, 20 Md. 1, 83 Am. Dec. 535; White v. New Orleans, 15 La. Ann. 667; Terhune v. Paa^aic. 41 N. J. Law, 90; Moreland v. Same, 03 N. J. Law, 208, 42 Atl. 1058; FULTON v. LINCOLN, 9 Neb. 3.5S, 2 N. W. 724; Town of Durango v. Pennington, 8 Colo. 257, 7 Pac. 14; Worthington v. Coviiigton, 82 Ky. 205. § 102) LETTING OF CONTRACTS. 305 to them a mode of contracting they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." "" Modern decisions have established the law to be that contracts of municipal corpora- tions need not be under seal unless the charter or other legis- lative enactment so requires; "^ and so it has been held that a municipality may be bound to a contract by ordinance or by a resolution of the common council/* or even by parol agree- ment made through a duly authorized agency/* LETTING OF CONTRACTS. 102. The mode of letting a miinicipal contract is nsnally pre- scribed by tbe legislature, and, as MPe bave seen, must be pursued. Tbe statutes and charters, tbongb varied in phraseology, generally contain requirements that the letting shall be upon previous advertiseuient, and sealed bids based on plans and specifications, and to the lowest respon- sible bidder. Upon these subjects a vast amount of litigation has oc- curred, and the reported adjudications are numerous and no.t altogether consistent. The general result of these adjudica- 7 2 Head v. Insurance Co., 2 Cranch (U. S.) 127, 2 L. Ed. 229. 73 1 Dill. Mun. Corp. § 450, citing Draper v. Springport, 104 U. S. 501, 26 L. Ed. 812; Halbut v. Forrest City, 34 Ark. 24G. See, also, Sheffield School Tp. v. Andress, 5G Ind. 157; City of Gadsboro v. Moffett, 49 Fed. 213; Trustees of Alabama University v. Moody, 62 Ala. 389; Merrick v. Plank Uoad, 11 Iowa, 75; Clark v. Washing- ton, 12 Wheat. (U. S.) 40, 6 L. Ed. 544; Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Fleckner v. President, 8 Wheat. (U, S.) 338, 5 L. Ed. 631; Over v. Greenfield, 107 Ind. 231, 5 N. E. 872. 7 4 FANNING V. GREGOIRE. 16 How. (U. S.) 524. 14 L. Ed. 1043; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143. 7 5 Duncombe v. Ft. Dodge, 38 Iowa, 281; Reed v. Orleans, 1 Ind. App. 25, 27 N. E. 109; Clark v. Washington, 12 Wheat. (U. S.) 40, 6 L. Ed. 544. See Jackson Electric Ry., Light & Power Co. v. Adams. 79 Miss. 408, 30 South. 694, Ino.Cobp.— 20 306 CONTRACTS. (Ch. 12 tions upon the various points is: (1) That publication must be made substantially as prescribed,'^* though it has been held that in case of emergency, where delay would work irrepar- able injury to the municipality, a bona fide contract free from fraud and favoritism, and at a reasonable price, was valid without preliminary advertisement.'^'^ (2) That plans and specifications for the contract may be either published in the advertisement or referred to as on file in a particular office, or to be furnished on application.^® If published, the city is bound by the terms of the publication, and bids made there- upon are valid. So, also, of copy furnished on application.''^ If referred to as on hie, they must be filed within a reasonable time before closing of bids, so as to allow reasonable time for examination, and thereby insure competition among bidders.*" A requirement that material be manufactured by a particular firm is invalid,*^ and, where new material is advertised for, secondhand material cannot be accepted.®^ (3) That bids must remain sealed until the day specified for opening them, to the end that the municipality may have the benefit of fair 7 6 McCloiid V. Columbus, 54 Ohio St. 439, 44 N. E. 95; Fairbanks, Morse & Co. v. North Bend (Neb.) 94 N. W. 537; Board of Sup'rs of Leflore County v. Cannon, 81 Miss. 334, 33 South. 81; Inge v. Board, 135 Ala. 187, 33 South. 078, 93 Am. St. Rep. 20. 77 North River Electric Light & Power Co. v. New York, 48 App. Div. 14, 62 N. Y. Supp. 720. 7 8 Bozarth v. McGilicuddy, 19 Ind. App. 26, 47 N. E. 397. See Reid V. Clay, 184 Cal. 207, 66 Pac. 262; New Castle v. Rearic, 18 Pa. Super. Ct. 350. 79 Moreland v. Passaic, 63 N. J. Law, 208, 42 Atl. 1058. 80 Smith v. Syracuse, 17 App. Div. 63. 44 N. Y. Supp. 8.52; Cal- ifornia Imp. Co. V. Reynolds, 123 Cal. 88, 55 Pac. 802 (Necessity of competition) ; Rose v. Low. 85 App. Div. 461, 83 N. Y. Supp. 598 ; Fair banks, Morse & Co. v. North Bend (Neb.) 94 N. W. 537; Warren v. Boston, 181 Mass. 6, 62 N. E. 951. 81 Dean v. Charlton, 23 Wis. .590, 99 Am. Dec. 205; Burgess v. Jefferson, 21 La. Ann. 143; Smith v. Improvement Co., 161 N. Y. 484, 55 N. E. 1077. Contra, Hobart v. Detroit, 17 Mich. 240. 97 Am. Dec. 185. 82 Lake Shore Foundry Co. v. Cleveland, 8 Ohio Cir. Ct. R. 671. § 102) LETTING or CONTRACTS. 807 competition among the bidders ; *' that all bids must be on file within the time limited by the advertisement,** and must be publicly opened at the place, and by the officer, prescribed by statute, or in charge of the biddings; ^^ and also at the date prescribed, unless unavoidably delayed, in which case notice of the adjourned time for opening bids shall be given to the bidders.*® A requirem.ent of the full name of all persons in- terested in the bid is mandatory, and bids not conforming there- to must be rejected.*^ (4) That, where the advertisement promises a contract to the lowest bidder, the authority in con- trol of the biddings may reject all bids unless otherwise per- emptorily directed by the charter,** and no right of action will lie against the city for anticipated profits , of the contract.*® 83 People V. Coler, 35 App. Div. 401. 54 N. Y. Siipp. 785. 84 Williams v. Bergin. 129 Cal. 4G1. 02 Pac. 59; Addis v. Pitts- burgh, S5 Pa. 879; City of Newport News v. Potter, 122 Fed. 321, 58 C. C. A. 483; Fairbanks, Morse & Co. v. North Bend (Neb.) 94 N. W. 537. 8 5 People V. Coler, supra. Where the statute requires that the bids be publicly opened by the officer advertising for them, a street commissioner advertising for bids for public improvements being absent from his office at the time set for opening them, the opening of the bids by his secretary is a nullity. City of Newport News v. Potter, supra. 86 Cass Farm Co. v. Detroit, 124 Mich. 433, 83 N. W. 108; Ed- wards V. Berlin, 123 Cal. 544, 5G Pac. 432. 8 7 Strack v. Ratterman, 18 Ohio Cir. Ct. R. 36. And so also it has been held that a provision that contracts for public improve- ments shall be let to the lowest responsible bidder, is mandatory. Inge V. Board, 135 Ala. 187, 33 South. 678, 93 Am. St. Rep. 20. But see Brown v. Houston (Tex. Civ. App.) 48 S. W. 760. 88 Elliot V. Minneapolis, 59 Minn. Ill, 60 N. W. 1081; Brown v. Houston, supra. Cf. State v. Payssan, 47 La. Ann. 1029, 17 South. -ISl, 49 Am. St. Rep. 390. See, also, Trapp v. Newport, 115 Ky. Law Rep. 224, 74 S. W. 1109; Trowbridge v. Hudson, 24 Ohio Cir. Ct. R. 76; Corry v. Chair Co., 18 Pa. Super. Ct. 271; People v. Kent, 160 111. 655, 43 N. E. 760. ^'flCity Imp. Co. v. Broderick, 125 Cal. 139, 57 Pac. 776; Talbot Paving Co. v. Detroit, 109 Mich. 057, 67 N. W. 979, 63 Am. St. Rep. 308 CONTRACTS. (Ch. 12 Where the publication is for the lowest responsible bidder, dis- cretion as to responsibility rests with the municipality;^" but this discretion is not arbitrary,®^ and the bidder is not to be selected as responsible because alone of the value of his prop- erty or his ability to pay money,"- but upon his ability to re- spond to the requirements of the contract.*^ And no right of action lies against the municipality or the officers in control of the bidding for an honest mistake in the exercise of this dis- cretion.^* 80 People V. Gleason, 121 N. Y. 631, 25 N. B. 4; Erving v. Mayor, 131 N. Y. 133, 29 N. E. 1101; Johnson v. Sanitary Dist, 163 111. 285, 45 N. E. 213; State v. McGrath, 91 Mo. 386, 3 S. W. 846; Douglass V. Commonwealth, 108 Pa. 559; City of Chicago v. Hanreddy, 102 111. App. 1; Kundinger v. Saginaw (Mich.) 93 N. W. 914; St. Louis Quarry & Construction Co. v. Frost, 90 Mo. App. 677; Kronsbein v. Rochester, 76 App. Div. 494. 78 N. Y. Supp. 813. 91 McGovern v. Board, 57 N. J. Law, 580. 31 Atl. 613; People v. Kent, 100 111. 655, 43 N. E. 760; People v. Common Council, 78 N. Y. 33, 34 Am. Rep. 500. But the authority of the council to deter- mine which is the lowest responsible bidder will not be interfered with by the court except it be shown clearly that there was fraud or collusion. Hubbard v. Sandusliy, 9 Ohio Cir. Ct. R. 638. 82 People V. Kent, 160 111. 655, 43 N. E. 760. 83 Interstate Vitrified Brick & Paving Co. v. Philadelphia, 164 Pa. 477, 30 Atl. 383. In Inge v. Board, 135 Ala. 187, 33 South. 678. 03 Am. St. Rep. 20, it was held that, in deciding on the responsi- bility of the bidder, it is the duty of the municipal officers to con- sider not only the pecuniary ability of a bidder to perform the con- tract, but his skill and integrity. See People v. Kent, supra; State V. St. Bernard, 10 Ohio Cir. Ct. R. 74; Neiman v. Same, Id., REUT- ING V. TITUSVILLE, 175 Pa. 512, 34 Atl. 916. 84 Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80; Jordan v. Han- son, 49 N. H. 199, 6 Am. Rep. 508; Talbot Paving Co. v. Detroit, 109 Mich. 657, 67 N. W. 979, 63 Am. St. Rep. 604. § 103) ILLEGAL CONTRACTS. 309 ILLEGAL CONTRACTS. 103. Municipal contracts, like the contracts of private cor- porations and individuals, are also illegal and void virlienever they are contrary to la^v, to public policy, or to good morals. The same causes which invalidate private contracts also de- stroy those made by municipal corporations. These causes need not be here enumerated. It will suffice to recall that any contract which involves matter that is malum prohibitum or malum in se is illegal. There are, however, certain grounds for impeaching municipal contracts which call for special men- tion because of their frequency and facility in municipal trans- actions. Contracts with Officers. As we have heretofore seen, it is a fundamental rule that aldermen and officers of a municipality must not make con- tracts with it.®^ This is a universal rule, unyielding in its application, and founded on the purest public policy.^® It prohibits municipal contracts with private corporations in which members of the council may be interested.^' Such con- tracts are said to be fraudulent in law, and hence illegal and 95 Ante, § 82; West v. Berry, 98 Ga. 402, 25 S. E. 508; Macy v. Duluth. 68 Minn. 452, 71 N. W. 687. 8 6 Ft. Wayne v. Rosenthal, 75 Ind. 156, 39 Am. Rep. 127; Benton V. Hamilton, 110 Ind. 294, 11 N. E. 238; American Emigrant Co. v. Wright County, 97 U. S. 339, 24 L. Ed. 912. 97 Nunemacher v. Louisville, 98 Ky. 334, 32 S. W. 1091; Snipes V. Winston, 126 N. C. 374. 35 S. E. 610, 78 Am. St. Rep. 666; Santa Ana Water Co. v. San Buenaventura (C. C.) 65 Fed. 323; Duacuu v. Charleston, 60 S. C. 532, 39 S. E. 265; Peiper v. Same, Id.; Finch V. Railroad Co., 87 Cal. 597, 25 Pac. 765; Bellaire Goblet Co. v. Flndlay, 5 Ohio Cir. Ct. R. 418; Grand Island Gas Co. v. West, 28 Neb. 852, 45 N. W. 242; Milford v. Water Co., 124 Pa. 610, 17 Atl. 185. 3 L. R. A. 122; Foster v. Cape May, 60 N. J. Law, 78, 36 Atl. insO; Cotninonwealth v. De Camp, 177 Pa. 112. 35 Atl. 601. 310 COMKACTS. (Ch. 12 void.®* This has been so ruled of a contract with an attorney who was an alderman; '^^ and of a contract made with an elec- tric light company, a share of stock of which was pledged to an alderman ; ^°" and so also of a contract for horses and car- riages, to be used in a celebration, made with a liveryman who was an alderman.^"^ Against Public Policy. A promise to pay a public corporation or its agents a pre- mium for doing their duty is illegal and void.^"^ "A contract will not be sustained which tends to restrain or control the unbiased judgment of public officers;" ^"^ and so of a prom- ise by a city to surrender its right to lay out a street, it being contrary to public policy and void, as abdicating a public func- tion; ^"^ also of a contract binding the city authorities not to exercise their legislative powers in a certain manner in the future; ^"^ and a contract to employ "none but union labor, ^"^ or to buy only such articles as have a union label" ; ^"^ so of one repugnant to the result of a municipal referendum.^"* 98 1 Dill. Mun. Corp. § 444; Tied. Mun. Corp. § 107. 9 9 West V. Berry, 98 Ga. 402, 25 S. E. 508. 100 Foster v. Cape May, supra. 101 Smith V. Albany, 61 N. Y. 444. The trustees of gasworks of a city are "municipal officers," within the meaning of the term relat- ing to municipal officers making contracts with firms of which they are members. State v. Funk, 16 Ohio Cir. Ct. R. 155. See, also, Marshall v. Ell wood, 189 Pa. 348, 41 Atl. 994; Macy v. Duluth, 68 Minn. 452, 71 N. W. 687; Moreland v. Passaic, 63 N. J. Law, 208, 42 Atl. 1058; Roberts v. Bank, 8 N. D. 504, 79 N. W. 1049. 102 CITY OF INDIANAPOLIS v. GASLIGHT CO., 66 Ind. 396. 103 1 Dill. Mun. Corp. § 458. 104 MARTIN V. MAYOR, 1 Hill (N. Y.) 545. 105 State V. Railroad Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656. 106 Adams v. Brenan, 177 111. 194, 52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222. 107 Marshall & Bruce Co. v. Nashville, 109 Tenn. 495, 71 S. W. 815; Adams v. Brenan, supra; Holden v. Alton, 179 111. 318, 53 N. E. 556; YICK WO y. HOPKINS, 118 U. S. 356, 6 Sup. Ct 1064, 30 L. Bd. 220; Appeal of Durach, 62 Pa. 495. 108 George v. Light Co., 105 Mich. 1, 62 N. W. 985. 3 § 103) ILLEGAL CONTRACTS. 311 Contrary to Law. A contract in violation of a statute or constitution is also illegal and void ; '^^^ and so where a fire apparatus exceeding five hundred dollars in value was purchased by a city, with- out referring the matter to a vote of the electors as required by statute, the contract was held void; ^^^ as was likewise one which attempted to evade the statute by splitting the purchase price into parts less than five hundred dollars; ^^^ so, likewise, of contracts contrary to constitutional provisions limiting an- nual expenditures to annual revenues; ^^^ also to one requiring a sinking fund provision for indebtedness contracted. ^^^ And so, likewise, a municipal contract obtained by means of a com- bination of contractors to prevent competition is illegal and void, not only as being contrary to statute, but also against public policy ;^^* and a municipal contract granting exclusive rights and franchises by a city, made otherwise than in the exercise of its police powers, is likewise illegal and void.^^^ But the grant of a franchise for water and light plants for a term of years is not a monopoly; ^^* nor is a contract for the exclusive right to clear and dispose of garbage of a city an illegal monopoly.^^' 109 Thomas v. Richmond. 12 Wall. (U. S.) 349. 20 L. Ed. 4.53 ; City of Covington v. McKenna, 99 Ivy. 508, 3(3 S. W. 518; Noel v. San Antonio, 11 Tex. Civ. App. 5S0. 33 S. W. 203; Continental Const. Co. V. Altoona, 92 Fed. 822, 35 C. C. A. 27; Citizens' Water Co. v. Hydraulic Co., 55 Conn. 1, 10 Atl. 170. 110 Fire Extinguisher Mfg. Co. v. Perry, 8 Okl. 429. 58 Pac. 635. 111 Fire Extinguisher Mfg. Co. v. Perry, supra; Raton Waterworks Co. V. Raton, 9 N. M. 70, 49 Pac. 898. 112 Bradford v. San Francisco, 112 Cal. 537, 44 Pac. 912. 113 Noel V. San Antonio, 11 Tex. Civ. App. 5S0, 33 S. W. 263. 114 Brady v. Bartlett, 56 Cal. 350. 116 Long v. Duluth, 49 Minn. 280, 51 N. W. 913, 32 Am. St. Rep. 547. 118 Altgelt V. San Antonio, 81 Tex. 430, 17 S. W. 75, 13 L. R. A. 383; City of Brenham v. Water Co., 67 Tex. .^IS, 4 S. W. 143. 117 City of Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269; State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L. R. A. 279. 312 CONTKACTS. (Ch. 12 ANNULLING CONTRACTS. 104. A nmnicipality has no pow^er to arbitrarily annul its contracts, but may renounce, terminate, or rescind tbem only on tbe same terms and under tbe same con- ditions as other contracting parties. Municipal contracts are held to be made in the exercise of municipal rather than governmental powers/^® The contract- ing parties, are equal before the law, both as regards the making and performance of the contract, and each has the same right and remedy as the other. ^^^ The city, therefore, possesses no power of annulling its contracts in virtue of its public character.^ ^" The analogy of the law of private cor- porations is generally recognized as controlling in such mat- ters.^*^ Where the right to annul or terminate the contract is reserved to either party because of nonperformance by the other, or any similar express condition, it may be exercised in the mode and with the effect stipulated in the contract.'-^ Otherwise the rescinding party must rely upon recognized equitable or legal grounds for such proceeding;^** and, if 118 City of Greenville v. Waterworks Co., 125 Ala. 625, 27 South. 764; Rae v. Flint, 51 Mich. 526, 16 N. W. 887; Gregory v. Bridge- port, 41 Conn. 76, 19 Am. Rep. 458; City of Indianapolis v. Coke Co., 66 Ind. 396. 119 Little Falls Electric & Water Co, v. Little Falls (C. C.) 102 Fed. 663; Parr v. Greenbush, 42 Hun (N. Y.) 232; Smith v. Stephan, 66 Md. 381, 7 Atl. 561, 10 Atl. 671; City of Galveston v. Loonie, 54 Tex. 517. 120 Hudson Electric Light Co. v. Hudson, 163 Mass. 346, 40 N. E. 109 ; Newport v. Phillips, 19 Ky. Law Rep. 352, 40 S. W. 378 ; Portland Lumbering & Mfg. Co. v. East Portland, 18 Or. 21, 22 Pae. 536, 6 L. R. A. 290; United States Watei-works Co. v. Du Bois, 176 Pa. 439, 35 Atl. 251; Wells v. Atlanta, 43 Ga. 61. 121 Newport v. Phillips, 19 Ky. Law Rep. 352, 40 S. W. 378; Port- land Lumbering & Mfg. Co. v. East Portland, supra; Pullman v. Mayor, 54 Barb. (N. Y.) 169. 122 Bietry v. New Orleans, 24 La. Ann. 21; Farmers' Loan & Trust Co. V. Galesburg, 133 U. S. 156, 10 Sup. Ct. 316, 33 L. Ed. 573. 123 Newport v. Phillips, 19 Ky. Law Rep. 352, 40 S. W. 378. A I § 105) IMPAIRING OBLIGATIONS. 313 the city assume arbitrarily to terminate or renounce its con- tract, it subjects itself thereby to the usual legal consequences of a breach of contract.^^* But it may, like any other party, compromise or arbitrate the matters in controversy/^" IMPAIRING OBLIGATIONS. 105. A municipal contract cannot be impaired by state legis- lation. Legislative control over municipal powers, and even munici- pal existence, as we have seen,^-^ is unlimited. It can create, direct, control, modify, and destroy the municipality ; but it can pass no law impairing the obligations of a municipal con- tracts*^ Says the Supreme Court of the United States: ^^^ modification of a contract by a city, or a waiver of conditions therein, found to be prejudicial to its interests, may be made by implication. City of Newport News v. Potter, 122 Fed. 321, 58 C. C. A. 483. 124 Jones V. Richmond, 18 Grat. (Va.) 517, 98 Am. Dec. 695; City of Williamsport v. Commonwealth, 84 Pa. 487, 24 Am. Rep. 208; City of Galena v. Corwith, 48 111. 423, 95 Am. Dec. 557; Gregory V. Bridgeport, 41 Conn. 7G, 19 Am. Rep. 485. 125 Ford V. Clough, 8 Greenl. (Me.) 334, 23 Am. Dec. 513; Col- lins V. Welch, 58 Iowa, 72, 12 N. W. 121, 43 Am. Rep. Ill; Inhabit- ants of Griswold v. Stonington, 5 Conn. 367; Town of Petersburg v. Mappin, 14 111. 193, 56 Am. Dec. 501. But not in the exercise of eminent domain. City of Somerville v. Dickerman, 127 Mass. 272; McCann v. Otoe County, 9 Neb. 324, 2 N. W. 707. 120 Ante, §§ 63, 70. 127 United States v. County Treasurer, 1 Dill. 522, Fed. Cas. No. 16,538; MT. PLEASANT v. BECKWITH, 100 U. S. 514, 25 L. Ed. 699; People v. Bond, 10 Cal. 563; SHAPLEIGH v. SAN ANGELO, 167 U. S. 654, 17 Sup. Ct. 957, 42 L. Ed. 310; CITY OF MEMPHIS V. UNITED STATES, 97 U. S. 293, 24 L. Ed. 920; Morris v. State, 62 Tex. 728; Smith v. Appleton, 19 Wis. 468; UNITED STATES v. NEW ORLEANS, 103 U. S. 358, 26 L. Ed. 395; MERIWETHER V. GARRETT, 102 U. S. 472, 26 L. Ed. 197; SEIBERT V. LEWIS, 122 U. S. 284, 7 Sup. Ct. 1190, 30 L. Ed. 1161. 128 UNITED STATES v. NEW ORLEANS, supra. See, also, Ed- wards V. Kearzey, 96 U. S. 595, 24 L. Ed. 793. 314 CONTRACTS. (Ch. 12 "Legislation producing this latter result, not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is pro- hibited by the Constitution, and must be disregarded — treated as if never enacted — by all courts recognizing the Constitution as the paramount law of the land. This doctrine has been repeatedly asserted by this court when attempts have been made to limit the power of taxation of a municipal body, upon the faith of which contracts have been made, and by means of which alone they could be performed. So long as the corpora- tion continues in existence, the court has said that the control of the legislature over the power of taxation delegated to it is restrained to cases where such control does not impair the obligation of contracts made upon a pledge, expressly or im- pliedly given, that the power should be exercised for their ful- fillment. However great the control of the legislature over the corporation while it is in existence, it must be exercised in subordination to the principles which secure the inviolability of contracts." The remedy of the contractor in case of repeal of a charter and dissolution has received consideration in pre- ceding sections. ^^® MONEY CONTRACTS. 106. The inheTent or implied povrer of a municipal corpora- tion to borroTv money and execute negotiable paper or municipal bonds tberefor is an unsettled point of mu- nicipal la^v in America, a majority of tbe cases seem- ing to recognize the existence of that municipal povtr- er, YP^hile the vreight of the reasoning denies it except ivhere expressly conferred. A synopsis of the law upon this subject as applied to quasi corporations will be found in a preceding chapter, ^^° and the doctrines and rules therein laid down as to county bonds will be found generally applicable to municipal bonds. Repetition 129 Aute, p. 1U7, § 51. ISO Ante, §§ 23, 24. § 106) MONEY CONTRACTS. 315 is therefore unnecessary here. The distinction between the powers of municipal and quasi corporations to borrow money and execute negotiable securities therefor will be found to lie in the diiTerent nature of the two classes of corporations, the latter being exclusively public and governmental/^^ while the former possesses powers and rights of a quasi private na- ture, usually denominated "strictly municipal." ^^^ In view of these strictly municipal and quasi private rights and powers of a municipal corporation, the majority of the American courts have been inclined to recognize in municipal corpora- tions the same inherent or implied powers to borrow money and make negotiable paper as are committed to private corporations.^^^ Judge Dillon has made an earnest protest against the concession of this implied or inherent power to municipal corporations,^^* which was based upon opinions of the Supreme Court of the United States, especially that of Mr. Justice Bradley, in the Nashville Case,^^^ and which has received support from the supreme courts of several states,^^*"' and it seems likely to become the prevailing doctrine of the 131 Ante, §§ 5, 9. 34. 132 Ante, § 34. 133 De Voss V. Richmond, 18 Grat. (Va.) 388, 98 Am. Dec. 647; Bank of Chillicothe v. Cbillicotlie, 7 Ohio 31, pt. 2, 30 Am. Dec. 185; MILLS v. GLEASON, 11 Wis. 470. 78 Am. Dec. 721; State V. Babcock, 22 Neb. 614, 35 N. W. 941; City of Richmond v. McGirr. 78 Ind. 192; City of Kenosha v. Lamson, 9 Wall. (U. S.) 477, 19 L. Ed. 725 ; Stratton v. Allen, 16 N. J. Eq. 229 ; Davis v. Meeting House. 8 Mete. (Mass.) 321 ; CITY OF NASHVILLE v. RAT, 19 Wall. (U. S.) 468, 22 L. Ed. 164; City of Williamsport v. Commonwealth, 84 Pa. 497, 24 Am. Rep. 208; Williamson County v. Farson, 101 111. App. 328; City of Huron v. Bank, 86 Fed. 272, 30 C. C. A. 38, 49 L. R. A. 534; Robertson v. Breedlove, 61 Tex. 316. Contra, Coquard v. Oquawka, 192 111. 355, 61 N. E. 660; Village of Oquawka v. Grave.«, 82 Fed. 568, 27 C. C. A. 327; Love joy v. Foxcroft, 91 Me. 367, 40 Atl. 14L 134 1 Dill. Mun. Corp. §§ 121-126. 135 CITY OF NASHVILLE v. RAY, 19 Wall. (U. S.) 468, 22 L. Ed 164. 136 Swackhamer v. Haekettstown, 37 N. J. Law, IHl; Hewitt V, School Dist., 94 111. 528; Thomas v. Port Huron, 27 Mich. 320. 816 CONTRACTS. (Ch. 12 American courts, though it has not as yet been so expressly declared. The weight of his personal opinion as an author on municipal law is so generally recognized by lawyers and judges as to warrant the adoption here of his views as to points where the American cases are conflicting and cannot be harmonized.^ '^ Concisely stated, they are as follows: ^'* (1) Municipal expenses are based upon municipal revenues, and the power to borrow money as a means of making future improvements or meeting current expenses cannot be implied from the mere authority to make such improvements, nor from the usual grants of municipal power. (2) The nature of the usual functions of a municipality is so widely different from that of a private corporation as not to warrant the use of analogy to determine the inherent powers of the municipaUty as to borrowing money and issuing com- mercial paper. (3) The power to issue negotiable paper, unimpeachable in the hands of the holder, is not an inherent or implied power of a municipal corporation. (4) Power to issue negotiable paper may be properly infer- red from the express power to borrow money granted to a municipality. (5) Municipal paper negotiable in form, if issued by a pub- lic corporation required to audit all claims and issue to the creditor warrants or orders therefor, is subject to all legal and equitable defenses in the hands of a transferee, as of the original holder. And the same rule prevails where the mu- nicipality may make and create debts and issue evidences of liability thus incurred, unless it has express or clearly implied power to issue negotiable paper. 137 Uncas Nat. Bank v. Superior, 115 Wis. 340, 91 N. W. 1004; Brenbam v. Bank, 144 U. S. 173, 12 Sup. Ct. 559, 36 L. Ed. 390: Lehman v. San Diego (C. C.) 73 Fed. 105; Coquard v. Oquawka, 192 111. 355. 61 N. E. C60; Lovejoy v. Foxcroft, 91 Me. 367, 40 Atl. 141. See note 5, c. 1. 13S 1 Dill. Mun. Corp. § 125. §g 107-108) IMF&OV£M£X«TS. 817 CHAPTER Xm. IMPROVEMENTS. 107, 108. Municipal Improvements — General — LocaL 109. Power to Make or Aid. 110. Preliminary Proceedings. 111. Contracts. 112. Damages. 113. Special Assessments. 114. Enforcing Collection. MUNICIPAL IMPROVEMENTS— GENERAL— LOCAL. 107. Municipal improvements include all those additions to or clianges in tlie municipal property, made by the use of money and labor or skill, for the purpose and with the effect of enhancing taxable values or ameliorating conditions of life in the municipality. 108. They are necessarily public, but may be either local, as conferring special benefits upon a certain street, block, or section; or general, as bettering the entire municipality. The latter are generally paid for out of the municipal treasury, the former by local taxa- tion. The chief object of citizens in effecting municipal organiza- tion is the amelioration of urban conditions. Physical change follows close upon the preservation of social order. An urban population requires special provisions for its comfort and well-being not necessary in rural districts. They are such as will preserve health, facilitate locomotion, and generally pro- mote the convenience of the citizens. Each proprietor may care for his own property in his own way, but for the public comfort and the general convenience of the inhabitants pro- vision must be made in accordance with plans which usually approximate urban ideals. To accomplish these purposes, im- provements are necessary. Streets must be laid out, graded. 318 IMPROVEME^ rs. (Ch. 13 curbed, guttered, paved, and lig-hted ; sidewalks must be laid ; municipal buildings must be erected ; water must be furnished ; sewers constructed ; and in these times electric plants are com- ing into municipal use to furnish not only light, but power, for municipal purposes. Parks, also, are urban necessities. and boulevards contribute greatly not only to the beauty, but the health, of a city. And, since most cities are situate upon navigable waters, docks and wharves are necessities for their trade and commerce. Nor are public schoolhouses, halls, hos- pitals, and auditoriums to be omitted. The construction and care of all these things properly pertain to a modern munici- pality, and they are embraced within the comprehensive term "improvements," whether they are general in their nature, for the common use of all the citizens, or, by reason of being local, afford special benefits and advantages to citizens owning prop- erty or living in a particular locality.^ FOAVER TO MAKE OB AID. 109. The poxrer to make general improvements is inherent in every municipality; bnt the po^ver to make local im- provements at the expense of the locality must be con- ferred expressly by the charter or by statute, or plain- ly implied. The general amelioration of urban conditions is the para- mount object of municipal incorporation.* To devise and 1 2 Beach, Pub. Corp. § 1170; Elliott, Mun. Corp. § 115; 2 Dill. Mun. Corp. § 761. See, also, Carthage v. Light Co., 97 Mo. App. 20, 70 S. W. 930; Riverside & A. Ry. Co. v. Riverside (C. C.) 118 Fed. 730; Taylor v. Patton, IGO Ind. 4, 66 N. E. 91; Scott v. La Porte (Ind. Sup.) 68 N. E. 278. A city has implied power to light its streets and public buildings and places, and may do so by the erection of plants. Fawcett v. Mt. Airy (N. C) 45 S. E. 1029, 63 L. R. A. 870. 2 Authority given to a city to provide for the extension or con struction of sewers carries with it implied power to make a general contract therefor. Jones v. Holzapfel, 11 Okl. 405, 68 Pac. 511; I § 109) POWER TO MAKE OK AID. 319 execute plans to attain this object is an essential function of ihe municipality. For the performance of this municipal func- tion the city obviously possesses the requisite inherent power. It is not necessary, therefore, that the power to make any of these necessary municipal improvements for the general wel- fare shall be expressly conferred by charter; the city has it — must have it — to protect and promote the health, happiness, and well-being of its citizens.^ Extraordinary Improvements. But to exercise this power, to perform this function, in an extraordinary way, or to incur extraordinary expenses there- for, express authority is generally required.^ For instance, a city not only may, but must, take proper care of its streets and alleys ; and this it may do, at an expense within the limit of its annual revenues appropriated to that purpose, without express charter authority.^ It may also, without express Elliott. Mun. Corp. § 76; Smith v. Stephan, 66 Md. 381, 7 Atl. .")!;! : City of Galveston v. Loonie, 54 Tex. 517; Wells v. Atlanta, 43 Ga. 67. 3 Town of Greensboro v. Ehrenreich, 80 Ala. 579, 2 South. 72."). 60 Am. Rep. 130; Cooley, Const. Lim. (6th Ed.) 231; Village of Carthage v. Frederick, 122 N. Y. 271, 25 N. E. 480, 10 L. R. A. 178. 19 Am. St. Rep. 490; Ould v. Richmond, 23 Grat. (Va.) 464, 14 Am. Rep. 139. But no express authority is necessary to be given to a city, it having implied authority, to require lot ownex-s to lay side- walks in front of their property, such improvement being consid- ered a convenience pertinent to the lot, valuable as well to the lot as to the general public: and when a lot owner fails to make sucli improvement, when notified to do so, the city may do the work, or have it done, and collect the cost thereof from the property owner. City of Pittsburgh v. Daly, 5 Pa. Super. Ct. 528. 4 Town of Drummer v. Cox, 165 111. 648, 46 N. E. 716; HILL v. ME:MPHIS, 134 U. S. 198, 10 Sup. Ct. 562, 33 L. Ed. 887; MERRILL v. MONTICELLO, 138 U. S. 673, 11 Sup. Ct. 441, 34 L. Ed. 1069; MAYOR V. RAY, 19 Wall. (U. S.) 408, 22 L. Ed. 164; Sturtevants v. Alton, 3 McLean, 393, Fed. Cas. No. 13,580. 5 In re Opening First Street, 66 Mich. 42, 33 N, W. 15; Milhau v. Sharp. 27 N. Y. 611, 84 Am. Dec. 314. In City of Detroit v. Railway (Mich.) 9."i X. W. 73(5, it was held that a city had authority to bind 320 IMPROVEMENTS. (Ch. 13 grant of power therefor, contract with a gas or electric com- pany to provide light for the city ; * but if an extensive scheme of grading and paving at great expense is to be entered upon, requiring more than the annual revenues, and thereby incur- ring large municipal indebtedness, or if, at large expense and by municipal loan, the city wishes to construct its own gas or electric plant, it must have express legislative authority therefor.''^ Local Improvements. Local improvements are special improvements in a particu- lar locality, and for the special benefit thereof, and as such are chargeable to the property holders of the locality.* Such improvements are not made in the exercise of the usual mu- nicipal functions, nor paid for out of the general municipal exchequer. They require an extraordinary exercise of mu- nicipal power, and lay unusual and exceptional burdens upon the property of the locality, and thus apparently violate the rule of equal taxation. For example, a certain street or ave- nue is converted into a boulevard, and the expense thereof charged to the abutting property owners. This is not aii inherent power of a municipal corporation ; the performance of such an extraordinary function requires express authority.** itself on contract and maintain at its own expense the foundation required in its streets for tlie support of street car traclis. 6 CITY OF INDIANAPOLIS v. COKE CO., 66 Ind. 396; Gregory V. Bridgeport, 41 Conn. 76, 19 Am. Rep. 458; Pullman v. Mayor. 54 Barb. (N. Y.) 169. 7 Scott V. Davenport, 34 Iowa, 208; Hewitt v. School Dist, 94 111. 528; Hill v. Memphis, 134 U. S. 198, 10 Sup. Ct. 502, 33 L. Ed. S87; Elliott, Mun. Corp. § 113. A contract for a street improvement, made before the adoption of a sufficient ordinance therefor, is in- valid. Paxton V. Bogardus. 201 111. 628, 66 N. E. 853. 8 Cooley, Tax'n, p. 006; Burro ugh, Tax'n, p. 460. 9 Zalesky v. Cedar Rapids, 118 Iowa, 714, 92 N. W. 657; Tovni of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Lott v. Ross, 38 Ala. 156; Winston v. Taylor, 99 N. C. 210, 6 S. E. 114; City of Savannah v. Hartridge, 8 Ga. 23; Green v. Ward, 82 Ya. 324. An § 110) PRELIMINARY PROCEEDINGS. 321 PRELIMINARY PROCEEDINGS. 110. It is essential to tlie validity of any sclienie of improve- ment tliat all the sulistantial requiraiaeat 3 oE the chi'.rfcer or stat^ite autliorJzir.3 tlae same shall be strictly observed and complied ^^ith. Municipal repairs or slight improvements made within the limits of ordinary revenues are not generally considered to be included within the meaning of the term "improvements." ^^ This word is usually employed to describe such local or thor- ough changes in physical conditions as involve extraordinary expenditure or unusual taxation/^ and will be so used in this chapter. The authority of the municipality to impose these special or extraordinary burdens may be conferred upon it by the charter, by general law, or by special legislation. It is rarely an absolute power, but is usually conditioned upon the assent of those to be burdened by the proposed improvement.^ - If it is general, the assent is required to be manifested by a popular election showing the favor of a bare majority or two-thirds or three-fourths of the entire vote cast, or of all entitled to vote in the election. ^^ If it is a local improvement, the condition precedent may be either a petition for the im- provement, generally required to be signed by a majority of all freeholders to be affected thereby;^* or a judicial declaration ordinance is the very foundation of ttie improvement, when it is to be paid for by a special tax, and no special tax can be levied for improvements already made. City of Alton v. Job, 103 111. App. 378. 10 Philadelphia v. Dibeler, 147 Pa. 261, 23 Atl. 5G7; In re Pulton Street, 29 How. Prac. (N. Y.) 429. 11 2 Beach. Pub. Corp. c. 27; Elliott, Mun. Corp. §§ 113-117. 122 Smith, Mun. Corp. § 1]31. 13 ]Marion Water c:o. v. ^Marion (Iowa) 9G N. W. S83. 14. Jones V. South Omaha (Neb.) 94 N, W. 957. In Orr v, Omaha (Xeb.) 90 N. W. 301, it was held that where the act incorporating metropolitan cities authorized any such city to pave any street or alley within Its limits, either with or without a petition of the property Inq.Cobp. — 21 322 IMPROVEMENTS. (Ch. 13 by some court, upon a special proceeding for that purpose, upon the petition of some interested person;^' or a notice, duly published or posted, warning those interested of the nature and extent of the proposed improvement, and invit- ing them to show cause before the common council, either orally or in writing, why it should not be made.^* Essential Prerequisites. The obvious purpose of all these requirements is to gain the assent of those interested. Some of them absolutely prevent taxation without popular consent, others without consent of those to be taxed, and others, in analogy to judicial proceed- ing, recognize the right of the parties interested to be heard in their own behalf. To some degree the right of home rule is recognized in all of them. In harmony with the legislative intention are the decisions of the courts to the effect that owners representing a majority of the feet frontage, the city had no authority to make the cost of paving a charge against the abutting property without a petition of the owners of such property. But iu the same case it was held that the city could, under the same provision, when it had ordered a street paved, curb and gutter the same, and make the expense thereof a legal charge upon the abut- ting real estate, though there was no petition for such improvement. See New Iberia v. Fontelieu, 108 La. 460, 32 South. 369; Taylor v. Patton, 160 Ind. 4, 66 N. E. 91; Board of Improvement Dist. No. 60 V. Cotter (Ark.) 76 S. W. 552. And under a statute authorizing street paving to be done "when the person owning real estate which has at least one-third fronting on the street, the improvement of which is desired, shall request the commissioners to make such improvement," the city cannot, as an owner of property fronting on sucli street, join in signing such request, in order to make the same come up to the legal requirement. City of Atlanta v. Smith, 09 Ga. 462, 27 S. B. 690. 15 Gen. St. Conn. 1888, §§ 2706, 2715. 16 City of Chicago v. Walsh, 203 111. 318, 67 N. E. 774; Peck v. Bridgeport, 75 Conn. 417, 53 Atl. 803; Gray v. Burr, 138 Cal. 109. 70 Pac. 1068; Bates v. Twist, 13S Cal. 52, 70 Pac. 1023; (notice) Bank Columbia v. Portland, 41 Or. 1, G7 Pac. 1112; Brown v. Cen- tral Bermudez Co. (Ind. Sup.) 69 N. E. 150; Adams v. Roanoke (Va.j 45 S. E. 881 ; 2 Smith, Mun. Corp. § 1130. § 110) PRELIMINART PROCEEDINGS. 323 these statutory provisions are conditions precedent to the ex- ercise of the taxing power delegated to the municipality for purposes of improvement, and that the omission or failure to observe and comply with them renders invalid any effort of the municipality to make the improvement. These provi- sions are held to be mandatory, and compliance with them is absolutely essential to the exercise of the power.^'^ Strict Construction. The rule of strict construction is also applied to statutes giving this power of special or extraordinary taxation,^ ^ and it has teen accordingly held that a guardian of children can- not be counted to make a majority of property holders sign- ing a petition; ^^ nor one of two joint tenants;^" nor a life tenant. ^^ It has also been held that the names of property holders upon an original petition to the council, which had been laid upon the table, cannot be added to those subscribed to a subsequent petition for the same improvement in order to make a majority. ^^ Also, where the initiative is by the municipality, and notice is required, it must be given in writing;^* and where publication is permitted the improve- 17 People V. Smith, 201 111. 454, 66 N. E. 298; Morse v. Omaha (Neb.) 93 N. W. 734; BLANCHARD v. BISSELL, 11 Ohio St. 96: Missouri Pac. Ry. Co. v. Wyandotte, 44 Kan. 32, 23 Pac. 950; White V. Saginaw, 67 Mich. 33, 34 N. W. 255; McLauren v. Grand Forks, 6 Dak. 397, 43 N. W. 710. 18 Merritt v. Port Chester, 71 N. Y. 309, 27 Am. Rep. 47; Hoyt v. Sagiuaw, 19 Mich. 39, 2 Am. Rep. 76. IB Auditor General v. Fisher, 84 Mich. 128, 47 N. W. 574. 20 Auditor General v. Fisher, supra. But where the decision for the Improvement is based upon the petition of the owners of a cer- tain percentage in value of the property to be affected, and one of two partners signs the petition for such improvement, and the other does not, one-half of the value of the partnership property should be added in finding the total value of the property of the petitioners. Earl V. Board, 70 Ark. 211, 67 S. W. 312. 21 City of Baltimore \. Boyd, 64 ISId. 10, 20 Atl. 1028. 22 Auditor General v. Fisher, supra. 28 City of Cincinnati v. Sherike, 47 Ohio St. 217, 25 N. E. 169. 324 IMPROVEMENTS. (Ch. 1?> ment must be specifically described ; ** and want of notice or insufficient notice invalidates the ordinance for the improve- ment.^^ Discretion of Council. Where the council is vested with power to order and make the improvement, either upon petition or notice, and these formal requirements have been complied with, the power of the council is discretionary and quasi judicial, and its de- cision is conclusive in the absence of mistake or fraud; ^* and the courts will not interfere to prevent it because of alleged prodigality or inutility.^^ And where the council is au- thorized, either expressly or by fair implication, to determine whether a majority of property owners have requested the improvement, their action in ordering the improvement there- on is a conclusive determination of that question.^ ^ But where this jurisdiction is not conferred upon the council, then the courts may inquire and determine whether the majority have so petitioned.^" In general, it may be said that all those provisions of the statute which look to the protection of sub- 24 Jenny v. Des Moines, lUiJ Iowa, 347, 72 N. W. 550; Polk v. McCartney, 104 Iowa, 567, 73 N. W. 1067; Mason v. Sioux Falls, 2 S. D. 640, 51 N. W. 770, 39 Am. St. Rep. 802. 2 5 State V. West Hoboken, 53 N. J. Law, 64, 20 Atl. 737. 26 Wiggin V. Mayor, 9 Paige (N. Y.) 16; Alberger v. Mayor, G4 Md. 1, 20 Atl. 98S; State v. District Ct., 33 Minn. 295, 22 N. W. 295; CITY OF BLOOMIxXGTON v. RAILROAD CO., 134 111. 451, 26 N. E. 366. 27 People V. Board, 62 Hun, 619, 16 N. Y. Supp. 705. The courts have no power to interfere to prevent the construction of a locni improvement upon the ground that it is not necessary, and that its construction is an unreasonable burden upon the property so;:^!.; to be assessed, unless the discretion vested in the city council has been abused to such an extent as to render the ordinance providing- tor the improvement so unreasonable that it may be declared void. Walker v. Chicago, 202 111. 531, 67 N. E. 369. 2 8 Spaulding v. Associaiion, 87 Cal. 40, 25 Pac. 249. 2» Kahn v. Supervisors, 79 Cal. 388, 21 Pac. 849; Id. (Cal.) 25 Paa 403. 41 § 110) PRELIMINARY PROCEEDINGS. 325 stantial rights of the property owner, or to the intelligent ex- ercise of discretion committed to the common council, are material requirements ; and unless they are complied with, the ordinance for the improvement is void.^° But it has often been held that the validity of the ordinance is not effected by the absence of less important elements, such as particular specification of the work to be done, the materials to be used,^^ the width of the street,^ ^ or the proportion of the entire ex- pense to be borne by the locality.^* so Hoyt V. Saginaw, 19 Mich. 39, 2 Am. Rep. 76; Hewes v. Reis. 40 Cal. 255; City of Terre Haute v. Lake, 43 Ind. 480; Gates v. Hancock, 45 N. H. 528; Sullivan v. Leadville, 11 Colo. 483. 18 Pac. 736; Hudson v. Marietta, 64 Ga. 286. 31 Becker v. Washington, 94 Mo. 375, 7 S. W. 291; City of Spring- field V. Mathus, 124 111. 88, 16 N. E. 92; Parish v. Golden, 35 N. Y. 464; Jenkins v. Stetler, 118 Ind. 275, 20 N. E. 788; Wetmore v. Chicago. 206 111. 367, 69 N. E. 234. As to what constitutes a defect for uncertainty, see McDowell v. People, 204 111. 499, 68 N. E. 379. Where there were mere inaccuracies in the description of the pro- posed improvement: People v. Burke, 206 111. 358, 69 N. E. 45; Mc- Chesney v. Chicago, 205 111. 611, 69 N. E. 82. But, any substantial and material departure from the specification in a contract of a city which is required by law to be let to the lowest bidder will render the contract void, notwithstanding but one bid was presented for the work. Le Tourneau v. Hugo (Minn.) 97 N. W. 115. See Wil- liams V. Joyce (Cal.) 74 Pac. 290; City of Chicago v. Hulbert (111.) 68 N. E. 786. 3 2 Bacon v. Savannah, 86 Ga. 301, 12 S. E. 580; Woods v. Chi- cago, 135 111. 582, 26 N. E. 608; Burghard v. Fitch, 24 Ky. Law Rep. 1983. 72 S. W. 778; Gage v. Chicago, 196 111. 512, 63 N. E. 1031; Smythe v. Chicago, 197 111. 311, 64 N. E. 361. Nor is the ordinance void for failing to specify the time within which the work shall be completed. Allen v. La Force, 95 Mo. App. 324, 68 S. W. 1057; Pierson v. People. 204 111. 456, 68 N. E. 383. 33 Kimble v. Peoria, 140 111. 157, 29 N. E. 723. 326 IMPROVEMENTS. (Ch. 13 CONTRACTS. 111. A municipal contract for public improvements is sub- ject to tbe following limitations and conditions: (1) The subject-matter of tbe contract must bave been in- cluded witbin tbe ordinance or resolution ordering tbe improvement. (2) Tbe contract must not surrender or abdicate any public function or duty. (3) It must be let and made in tbe prescribed metbod. Assuming that the statutory requirements and conditions precedent to the making of a public improvement have been complied with before the passage of the ordinance or reso- lution that the improvement shall be made by the city, it is important next to inquire whether the contract formulated in pursuance thereof is within the scope and purview of the ordinance. At every step in the transaction there is a chal- lenge of authority which the contractor must heed at his peril : ** (a) Has the legislature under the Constitution power to grant authority to the municipality ? (b) Has the legislature duly conferred such power upon the municipality? (c) Has the governing board of the municipality, in pursuance of such authority, ordained that the improvement shall be made? (d) Is the proposed contract within the scope of the ordi- 34 Ante, § 100, and note 62, c. 12; Jones v. Lind, 79 Wis. 64, 48 N. W. 247; Fletcher v. Oshkosh, 18 Wis. 229; Drummond v. Eau Claire, 79 Wis. 97, 48 N. W. 244; Flewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043; Ziegler v. Cliapin, 59 Hun, 214, 13 N. Y. Supp. 783 ; Id., 126 N. Y. 342, 27 N. E. 471 ; DEY v. JERSEY CITY, 19 N. J. Eq. 412; Lyon v. Alley, 130 U. S. 177, 9 Sup. Ct. 480, 32 L. Ed. 899: Mathewson v. Grand Kapids, 88 Mich. 558. .50 N. W. 651, 26 Am. St. Rep. 299; White v. Stevens, 67 Mich. 33, 34 N. W. 255; New Decatur v. Berry, 90 Ala. 432, 7 South. 838. 24 Am. St. Rep. 827: Green v. Ward, 82 Va. 324; People v. Weber, 89 111. 347; Churchman V. Indianapolis, 110 Ind. 259, 11 N. E. 301; City of St. Louis v. '^ Davidson, 102 Mo. 149, 14 S. W. 825, 22 Am. St. Rep. 764; Murphy V. Louisville, 9 Bush (Ky.) ISO; Welker v. Potter, 18 Ohio St. 85; Spokane Falls v. Browne, 3 W^ash. St. 84, 27 Pac. 1077. § 111) CONTRACTS. 327 nance? (e) Is the person assuming to represent the city in making the contract an authorized agent thereof? If an afifirmative answer can be given to all these questions, the contractor m.ay feel secure in proceeding under his municipal contract. Authority for Contract. These subjects have been hereinbefore considered, and it only remains to call special attention to the fourth ques- tion : To determine whether the contract is within the scope of the ordinance, particular attention should be directed to ascertaining whether the contract is (1) within the topo- graphical limits prescribed in the ordinance ;^^ (2) within the monetary limits fixed therein;^® (3) of the nature of the im- provement ordained by the council.^'' It is obvious that a con- tract to grade, gutter, and pave a particular street will not support a contract upon another and different street;** nor will an ordinance to expend ten thousand dollars in a speci- fied improvement warrant a contract for the expenditure of fifteen thousand dollars for that purpose; ** nor can a contract to repair a street be safely based upon an ordinance to grade and pave it*** The last distinction may become important be- cause of the fact that in most jurisdictions local assessments 86 PEOPLE V. BROOKLYN, 4 N. Y. 419, 55 Am. Dec. 266; Rogers V. St. Paul, 22 Minn. 494; Meggett v. Eau Claire, 81 Wis. 326, 51 N. W. 566; Speer v. Athens, 85 Ga. 49, 11 S. E. 802, 9 L. R. A. 402; Craig v. Philadelphia, 89 Pa. 265. 36 Ante, §§ 23, 24; Dolese v. McDougall, 182 111. 486, 55 N. E. 547; McKee v. Pendleton, 154 Ind. 652, 57 N. E. 532; Clarke v. Chicago, 185 111. 354, 57 N. E. 15. 87 Church V. People, 179 111. 205, 53 N, E. 554; Harrison v. Chi- cago, 163 111. 129, 44 N. E. 395; City of Connersville v. Merrill, 14 Ind. App. 303, 42 N. E. 1112; Board of Councilmen of City of Frankfort v. Murray, 99 Ky. 422, 36 S. W. 180; City of Alton v. Middleton, 1.58 111. 442, 41 N. E. 926; North Pacific L. & M. Co. v. East Portland, 14 Or. 3, 12 Pac. 4. as Willard v. Albertson, 2o Ind. App. 166, 54 N. E. 446. 8 9 Clarke v. Chicago. 185 111. 354, .57 N. E. 15. *o O'Meara v. Green, 16 Mo. App. 118. 328 IMPROVEMENTS. (Ch. 13 for improvements are held not to warrant repair ; ** and so the means promised and given to the contractor in consid- eration of his work might be void. But such result would not ordinarily prevent recourse upon the municipal treasury for his compensation.*^ If the contract made should trans- gress the pecuniary limits or the section of the city prescribed in the ordinance, the contract would be void as to the excess of money promised, or the work outside the boundary limits of the ordinance.*^ Public Powers Inalienable. As we have heretofore seen, no public corporation may in any way alienate or surrender the trust powers conferred upon it for the public welfare.** Of this nature are police powers, eminent domain, control of streets, and the like. A contract, therefore, with a gas or water company, though based upon a valid consideration, permitting it to use the streets of a city for the purpose of laying down its mains, cannot, as we have seen, obstruct a city in the exercise of any 41 Bullitt V. Selvage, 20 Ky. Law Rep. .599. 47 S. W. 255. 42 City of Memphis v. Brown, 20 Wall. (U. S.) 289, 22 L. Ed. 264; Bill v. Denver (C. C.) 29 Fed. 344; Bucroft v. Council Bluffs, 63 Iowa, 646, 19 N. W. 807; Robertson v. Omaha, 55 Neb. 718, 76 N. W. 442, 44 L. R. A. 534; Reilly v. Albany, 112 N, Y. 30, 19 N. E. .508; Michel v. Police Jury, 9 La. Ann. 67; City of Louisville v. Leutherman, 99 Ky. 213, 35 S. W. 625. 43 Ante, § 97. But under a statute giving a corporation authority to construct sewers within the municipality and beyond it, the town may construct sewers within its territorial limits, and in that of ad- joining municipalities to secure an outlet. Butler v. Montclair, 67 N. J. Law, 426, 51 Atl. 494. See Langley v. Augusta (Ga.) 45 S. E. 486; Le Feber v. Northwestern Heat, Light &■ Power Co. (Wis.) 97 N. W. 203; City of Chicago v. Hulbert (111.) 68 N. E. 786; Fehler V. Gosnell, 99 Ky. 380, 35 S. W. 1125. IS Ky. Law Rep. 238. •44 Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518; Bush v. Portland, 19 Or. 45, 23 Pac. 667, 20 Am. St. Rep. 789; Wabash R. Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748. 42 L. Ed. 87; Northern Transp. Co. v. Chicago, 99 TI. S. 635, 25 L. Ed. 336. § 111) CONTRACTS. 329 of these public powers ; and the company cannot enjoin a con- tractor in the execution of a contract made by liim with the city calling for grading below the level of the pipes, and thus requiring them to be relaid below the new level of the street.*"' Nor will a contract right of a street railway company to use the city streets prevent work under a contract to regrade the entire street, and thereby disturb the bed and track of the rail- way, even though the company had itself agreed to make the improvement.*' Improvement Contracts. As shown in the last chapter,*^ municipal contracts must be let and made in the manner prescribed by law, of which all persons are bound to take notice; and it need be here further noted only that with regard to contracts for improvements it has been held that the discretion exercised by a city coun- cil in regard to the expediency and method of making im- provements is not the subject of judicial review;** that, *6 Roanoke Gas Co. v. Roanoke, 88 Va. 810, 14 S. E. 665. 46 Chicago, B. &' Q. R. Co. v. Quincy, 139 111. 355, 28 N. E. 1069. 47 Ante, § 102; Young v. People, 196 111. 603, 63 N. E. 1075. 48 Davies v. Saginaw, 87 Mich. 439, 49 N. W. 667; City of Em- poria V. Gilchrist, 37 Kan. 532, 15 Pac. 532; Louisville & N. R. Co. V. East St. Louis. 134 111. 656, 25 N. E. 962; Alberger v. Mayor, 64 Md. 1, 20 Atl. 9SS. But where the determination has been arrived at without the exercise of discretion, the action of the council may be the subject of judicial review. See Diamond v. Mankato, 89 Minn. 48, 93 N. W. 911, 61 L. R. A. 448, where a city council, by ordering the construction of a new sidewalk at the expense of the abutting property owners, determined that such sidewalk was necessary, and that the abutting property was benefited thereby to the extent of a special tax. It was held that such determination, unless arbitrary and unroasonable, was conclusive of the question of the necessity of the improvement, and of the benefit to be derived therefrom. See, also, Piorson v. People. 204 111. 4.56. 68 X. E. 383; Beck v. Holland (Mont.) 74 Pac. 410; Burckhardt v. Atlanta, 103 Ga. 302, 30 S. E. 32; Holdom v. Chicago. 169 111. 109, 48 N. E. 164; McChes- ney v. Chicago, 171 111. 253, 49 N. E. 548; Allen v. Woods (Ky.) 45 S. W. 106. 330 IMPROVEMENTS. (Ch. 13 without readvertising, a board, after rejecting the bids, may reconsider its action and award a contract upon the original biddings ; *^ that a contract for a public improvement is one for personal services and skill, and not assignable without the consent of the municipality, and therefore that the assignee can maintain no action against the municipality for services rendered by him ; °° that a contract let under bidding is made and executed only when a bid has been accepted by the proper agency of the municipality in the manner required by stat- ute.''^ But the better rule seems to be that the acceptance and use of the thing contracted for is a completion of the con- tract, and estops the corporation from objecting to merely formal matters; ^* also that, where the contract provides that matters of uncertainty or dispute arising under a contract in making the improvement shall be submitted for arbitration, no action can be maintained by either party without first offering to make such submission.^' DAMAGES. 112. No action lies at common law^ againfst a mnnicipal corpo- ration for damages resulting to the property of an in- dividual from the prosecution, Avith reasonable care and skill, of duly authorized works of municipal im- provement. This rigorous doctrine of the common law, though often con- tested in our American courts because of its rank injustice in individual cases, has nevertheless been fully maintained by them,^* and the modifications or alterations found in the de- 48 Ross V. Stackhouse, 114 Ind. 200, 16 N. E. 501. 60 Delaware County v. Lock Co., 133 U, S. 473, 10 Sup. Ct. 399, 33 L. Ed. G74. 51 Sullivan v. Leadville, 11 Colo. 483, 18 Pac. 7.30. 6 2 Ante, § 96; Abbott v. Hermon, 7 Me. 118; People v. Swift, 31 Cal. 26; Fisher v. School Dist, 4 Cush. (Mass.) 494. 53 Phelan v. Mayor, 119 N. Y. 86, 23 N. E. 175. 64 Smith V. Washington, 20 How. (U. S.) 135, 15 L. Ed. 858; Wat- § 112) DAMAGES. 331 cisions of several of the states are due to constitutional or stat- utory changes in the common law. In the leading case of O'Connor v. City of Pittsburgh, ^"^ in which, by a reduction of seventeen feet in the street grade, a church which had been erected according to directions of the city regulator was rendered worthless and required to be torn down, the court said : "We had this case reargued in order to discover, if possible, some way to relieve tlie plaintiff consistently with law, but grieve to say we can find none. The law is settled not only in Pennsylvania, but by every decision in the sister states, except one. * * * The loss to the congregation is a total one, while the gain to holders of property in the neighborhood is immense. The legislature that incorporated the city never dreamed that it was laying the foundation of such injustice, but as the charter stands it is unavoidable." The authority given the city by its charter was "to improve, repair, and keep in order the streets." The concurrence of de- cision in similar cases by the Supreme Courts of the United States,^® of Massachusetts,^^ and of New York ^^ in this view, and its adoption by all the other states but one,^" leaves no doubt as to this doctrine of the common law as above stated. Chief Justice Gibson, in the case above cited, ex- pressed the popular opinion in stating that "to obtain com- plete justice every damage to private property ought to be son V. Kingston, 114 N. Y. 88, 21 N. E. 102; Callender v. Marsh, 1 Pick. (Mass.) 418; O'CONNOR v. PITTSBURGH, 18 Pa. 187; Humes V. Knoxville, 1 Humph. (Tenn.) 403, 34 Am. Dec. 657; City of Delphi V. Evans, 36 Ind. 90, 10 Am. Rep. 12; Goodall v. Milwaukee, 5 Wis. 32; Taylor v. St. Louis, 14 Mo. 20, 55 Am. Dec. 89. 66 18 Pa. 187. 6« Pumpelly v. Canal Co., 13 Wall. (U. S.) 166, 20 L. Ed. 557. 67 Brown v. Lowell, 8 Mete. (Mass.) 172. 68 Radcliff's Ex'rs v. Brooklyn, 4 N. Y. 19.j. .53 Am. Dec. 357. 5 9 For a full half century, beginning with the cases of Goodlor & Smith V. Cincinnati, in 4 Ohio, 514, the Supreme Court of Ohio has maintained this exceptional position on the law of consequential damages for grading by a municipal corpoi*ation. 332 IMPROVEMENTS. (Ch. 13 compensated by the state or corporation that occasions it, and a general statutory remedy ought to be provided to assess the value." It was ruled in that case '° that, since the work of improvement did not trespass upon the land of the plain- tiff, no property of the plaintiff was taken within the mean- ing of the constitutional provision requiring just compensa- tion in case of exercise of the power of eminent domain, and therefore plaintiff could not evoke the protection of the Con- stitution. Since the decision in that case many states have incorporated into their Constitutions a provision that private property shall not be taken or damaged for public use with- out just compensation therefor; ®^ and most of the other states have obtained the same result by legislative enactment.*^ Statutory Changes. The details of these statutes are so various in the several states as to forbid our consideration. Only the general fea- tures can be here considered. In their purpose and effect they protect the property owner in his constitutional right to due process of law by providing for him a hearing before some competent tribunal, both as to the expediency of the improve- ment and the amount of the damages, and secure to him pay- ment of the same out of the public treasury. But it is gen- erally provided that the special damages suffered by each prop- erty holder may be set off by the special benefit to the property from the improvement.®^ This results practically in a compari- 60 O'CONNOR V. PITTSBURGH, 18 Pa. 187. 61 See Constitutions of California, Georgia, Illinois, Missouri, Ne- braska, and West Virginia. 6 2 The undoubted power of the legislature to thus change the com- uion-law rule was recognized and its use recommended by Chief Justice Gibson in O'CONNOR v. PITTSBURGH, supra, in 1851, and most of the states have made the change during the last half centurj-- 63 Clark V. Elizabeth, Gl N. J. Law, 565, 40 Atl. 616; Pickles v. Ansonia (Conn.) 56 Atl. 552; Barr v. Omaha, 42 Neb. 341, 60 N. W. 591; Chase v. Portland, 80 Me. 367, 29 Atl. 1104; Commissioners of Town of Asheville v. Johnson, 71 N. C. 398; Lipes v. Hand, 104 Ind. 503, 1 N. E. 871. § 112) DAMAGES. 333 son of the value of each particular piece of property at the beginning of the improvement with its value immediately after its completion. The award of damages is thus confined to those few instances in which the property is not enhanced in value by the improvement. The decisions upon this question, however, are not uniform, except in holdin,<^ that allowance may be made for such benetits only as are not common to the general public.^* Some cases hold that the set-off can be al- lowed only against incidental injury sustained, ^^ while others allow it against the value of the land as well.^* A few cases deny all right of set-off.®^ Remedies Provided. The remedy also for obtaining compensation is various in the several states. In some of them the property holder must appear before the city council and there present his claim for damages, which damages are thereupon estimated by some tribunal provided by statute. In other cases a proceeding must 64 Kirkendall v. Omaha, 39 Neb. 1, 57 N. W. 752. Tlie special benefits wbicb may be applied in reduction of damages sustained by a property owner from a change in the street grade are not private improvements subsequently made by his neighbors, but only those local and peculiar benefits received by him from the change. Pickles V. Ansonia, supra. See City of Joliet v. Adler, 71 111. App. 45(3; Grier v. Homestead Borough, 6 Pa. Super. Ct. 542, 42 Wkly. Notes Cas. IS; Chicago Union Traction Co. v. Chicago, 204 111. 363, 08 N. E. 519; Stowell v. Ashley (Mass.) 68 N. E. 675; Walsh v. City of Scranton, 23 Pa. Super. Ct. 276; Whitehead v. Manor Borough 23 Pa. Super. Ct. 314. «5 City of Shawneetown v. Mason, 82 111. 337, 25 Am. Rep. 321. In Lux & Talbott Stone Co. v. Donaldson (Ind. Sup.) 68 N. E. 1014. the court held that in an action to recover assessments for a stre^'t improvement an abutting property owner cannot set up a counter- claim for damages arising out of the failure of the contractor tn perform the work according to the contract, the work having been duly accepted by the city council. 66 Putnam v. Douglas Co., 6 Or. 328, 25 Am. Rep. 627; In re Root's Case, 77 Pa. 276. 6T Israel v. Jewett, 29 Iowa, 475. 331 IMPROVEMENTS. (Ch. 13 be brought in court by the corporation against the property holder, wherein the property is condemned for the public use, and the damages therefor are duly ascertained ; or, if the municipality shall omit to take this proceeding before enter- ing upon its work of improvement, the property holder may bring it for the purpose of obtaining compensation, with prac- tically the same result as if brought by the municipality. In some states a right of action at common law as for other damages is expressly given; and in some choice is allowed the property holder between two or more of these remedies, in which case the election of any one remedy excludes the others, and the decision thereunder is conclusive of his right.® ^ This is based upon the doctrine, well established by many judicial decisions, that due process of law guarantied by the Constitution may be had as well by special proceedings be- fore a special tribunal as by an action in court.®* It has often been held that payment of damages must precede the taking of private property for public use ; ^" but unless this is pro- vided by statute it has generally been held sufficient that ade- quate provision is made for ascertaining and securing the com- pensation.'^^ The property holder is entitled to demand com- pensation as soon as the appropriation has been definitely de- cided upon, without waiting for the actual taking.''* «8 Righter v. Newark, 45 N. J. Law, 104; Brown v. Grand Rapids, 83 Mich. 101, 47 N. W. 117; Arends v. Kansas City, 57 Kan. 350, 46 Pac. 702; Byram v. Foley, 17 Ind. App. 629, 47 N. E. 351. 69 City of Duluth v. Dibblee, 62 Miun. 18, 63 N. W. 1117; Garvin V. Daussman, 114 Ind. 42'J, 16 N. E. 820, 5 Am. St. Rep. 637; Spencer V. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 703; Reclama- tion Dist. V. Goldman, 65 Cal. 638, 4 Pac. 678; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289. 7 Hirth V. Indianapolis, 18 Ind. App. 073, 48 N. E. 876; Martin v. Tyler, 4 N. D. 278, 60 N. W. 392, 25 L. R. A. 838. 71 Sage V. Brooklyn, 89 N. Y. 189. 72 Cooley, Const. Lim. (6th Ed.) 696. But in Devlin v. Philadel- phia, 200 Pa. 518, 56 Atl. 21, the court said that no damages could be recovered for the establishment of a grade in a city until the actual work of grading has begun. ^ 113) SPECIAL ASS£SSM£NT8. 335 SPECIAL ASSESSMENTS. 113. Special assessments for nmnicipal improvements are an- thorized and made upon the idea that property en- hanced in value by snch improvements should bear the expense thereof, not as a burden, but as compensation for benefits specially conferred thereby. It is a fundamental doctrine of American jurisprudence that those receiving special benefits from the public should make compensation for them.'^* It finds its expression in the state by its division into counties, and assessments of county prop- erty for county improvements and advantages, as well as by the taxation of municipalities for municipal benefits and privi- leges. The application of this doctrine within municipal lim- its results in local assessments for special benefits conferred. The authority of the legislature to provide for these local as- sessments has been established by repeated judicial decision declaring not only their constitutionality, but also their rea- sonableness. ''* For example, the Supreme Court of Missouri has happily said : "While the few ought not to be taxed for the benefit of the whole, the whole ought not to be taxed for the few. * * * General taxation for a purely local 73 1 Hare. Const. Law, 301; Burrough. Tax'n, 460, 461. 7 4 Cooley, Const. Lim. (6th Ed.) 614, citing People v. Brooklyn. 4 N. Y. 419, 55 Am. Dec. 266; Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615; City of Louisville v. Hyatt, 2 B. Mon. (Ky.) 177, 36 Am. Dec. 504; Nichols v. Bridgeport, 23 Conn. 180, 60 Am. Dec. 636; City of Chicago v. Larned, 34 111. 208; Hines v. Leaven- worth, 3 Kan. 186; Farrar v. St. Louis, 80 Mo. 380; Burnett v. Sacra- mento, 12 Cal. 76, 73 Am. Dec. 518; Richardson v. Morgan, 16 La. Ann. 429; Baker v, Cincinnati, 11 Ohio St. 534; State v. Dean, 23 N, J, Law, 335; City of Fairtield v, RatclilT. 20 Iowa, 306; McGehee V, Mathis, 21 Ark. 40; Palmer v, Stumph, 29 Ind. 329; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Cain v. Commis- sioners, SO N. C. 8; Norfolk City v. Ellis, 26 Grat. (Va.) 224; Wilkins V. Detroit, 46 Mich. 120. 8 N. W. 701; Roundtree v. Galveston, 42 Tex. 612. See, also, City of Chicago v. Brown, 205 111. 568, 69 N. E. 65. 336 IMPROVEMENTS. (Cll. 13 purpose is unjust. It burdens those who are not benefited, and benefits those who are exempt from the burden." '^^ So, likewise, the Supreme Court of Louisiana has declared that the system of paying for such improvements wholly out of the general treasury is inequitable ; that often it results in great extravagance, abuse, and injustice; and that it is safer and juster to compel the particular locality specially benefited to bear specially the burden in wliole or in part.''® The idea underlying these special levies is that no injustice can result from requiring property enhanced in value by local improve- ments to pay the cost thereof, especially when this is less than the enhancement; and the possibility of injustice is removed, as we have seen, when compensation is provided for dam- ages sustained from these improvements. Municipal Discretion — Due Process of Law. Whether a given improvement is expedient and necessary, and whether it is general or local, are legislative questions; and when the municipality is vested with power to determine them the municipal decision is conclusive, and not subject to review by the courts.^'' This general doctrine is modified by TB Lockwood V. St. Louis. 24 Mo. 20. 7 6 Municipality No. 2 v. Dunn, 10 La. Ann. 57. 77 Village of Morgan Park v. Wiswall, 155 111. 262, 40 N. E. 611; Brown v. Saginaw, 107 Mich. 643, 65 N. W. 601; Hutclieson v. Storrie (Tex. Civ. App.) 48 S. W. 785; Kansas City v. Trotter, 9 Kan. App. 222, 59 Pac. 079. Where a city charter provides that paving of its sti'eets may be initiated upon the petition of a majority of the lot owners, but that the city council may make the improvement without any petition when public necessity requires it, the power to determine whether public necessity requires the making of such improvement without a petition is in the discretion of tlie couucil, whose decision is final, unless arbitrary or fraudulent. Diamond v. Mankato, 89 Minn. 48, l!3 N. W. 911. 61 L. R. A. 448; Akers v. Kolkmeyer, 97 Mo. App ■)20, 71 S. W. 530. Whether the motives of a town council in vacat ing a street are proper cannot be judicially inquired into, but the end accomplished might be considered in passing on its validity. Pence V. Bryant (W. Va.) 46 S. E. 275. § 113) SPECIAL ASSESSMENTS. 337 decisions in some states that there may be judicial inquiry on charge of fraud, mistake, oppression, or corruption,''^ and, if sustained, the court may vacate the municipal ordinance or enjoin the work of improvement.''® It has also been held that similar remedy may be employed in case where local as- sessment has been made for what is obviously a work of gen- eral municipal improvement ; *° and it is established law, as we have heretofore seen, that such remedies may be resorted to when the special assessment is not authorized by statute,*^ or is made without compliance with the statutory conditions precedent.*^ And accordingly it has been held that in cases where discretion is to be exercised by any tribunal in deter- mining whether a special assessment shall be levied, or what portion shall be imposed upon particular property, each owner is entitled, under constitutional guaranty of due process of law. to such notice as will enable him to challenge the expediency of the improvement or the justice of the levy.^^ It has also been held that this notice need not necessarily be in limine, but is sufficient if given in due time to permit an appearance and contest upon all matters affecting his rights and inter- ests under the improvement.®* But it seems no notice is necessary where the improvement is ordained by legislative enactment, allowing no discretion to the common council, 7 8 CITY OF BLOOMING TON v. RAILROAD CO., 134 111. 451, 26 N. E. 366; Dempster v. Chicago, 175 111. 278, 51 N. E. 710; Dewey V. Des Moines, 101 Iowa, 416, 70 N. W. 605; Michener v. Philadel- phia, 118 Pa. 535, 12 Atl. 174; Spencer v. Merchant, 100 N. Y. 585, 3 N. E. 682. T9 Niver v. Bath, 27 Misc. Rep. 605, .58 N. Y. Supp. 270; Richter V. New York, 24 Misc. Rep. 613. 54 N. Y. Supp. 150; Holmes v. Hyde Park, 121 111. 128. 13 N. E. 540. 80 CITY OF BLOOMINGTON v. RAILROAD CO., 134 111. 451. 26 N. E. 366. 81 Ante, §§ 21, 24. 82 Ante, §§ 74, 05. 83 STUART V. PALMER. 74 N. Y. 183. 30 Am. Rep. 289; ULMAN V. MAYOR, 72 Md. 587, 20 Atl. 141, 11 L. R. A. 224; DAVIDSON v. NEW ORLEANS, 96 U. S. 97, 24 L. Ed. 616. «* Duluth V. Dibblee, 62 Minn. 18, 63 N. W. 1117. INO.COKP, — 22 338 IMPROVEMENTS. (Ch. 13 and making the levy a. mere matter of mathematical calcula- tion, as upon the basis of frontage.^' Apportioning Assessments. Two methods are in common use for fixing the basis for apportioning the assessment upon the separate lots in a local- ity: (1) An assessment according to a standard fixed in the enabHng act, and appHcable to lots by measurements of front- age, surface, or value ; (2) an assessment made by commis- sioners or a jury of view upon the basis of the benefit esti- mated by them to be conferred upon each lot by the pro- posed improvement. The frontage rule is the one in com- mon use, and has been sustained by repeated adjudication,^'' though there are some cases holding to the contrary.'^ By this method the entire cost of a given street improvement is ap- portioned among the lots fronting thereon according to the respective frontage of each lot on the street. Special benefits are the basis of special assessments; and assessment without 8 5 Amery v. Keokuk, 72 Iowa, 701, 30 N. W. 780. 8 6 Davis V. Lynchburg, 84 Va. 861, 6 S. E. 230; Parker v. Challis, Kan. 155; Magee v. Commonwealth, 46 Pa. 358; Bacon v. Savan- nah, 86 Ga. 301, 12 S. E. 580; Whiting v. Quackenbush, 54 Cal. 30G; City of Pueblo v. Robinson, 12 Colo. 593, 21 Pac. 899 ; Wilder v. Cin ciunati. 26 Ohio St. 284; Beaumont v. Wilkesbarre, 142 Pa. 198, 21 Atl. 888; Wilbur v. Springfield, 123 III. 395, 14 N. E. 871; Allen v. Drew, 44 Vt. 174; King v, Portland, 2 Or. 146; ULMAN v. MAYOR, 72 Md. 587, 20 Atl. 141, 11 L. R. A. 224; WHITE v. PEOPLE, 94 111. 604; Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330; State V. Reis, 38 Minn. 371, 38 N. W. 97; Hand v. Elizabeth, 30 N. J. Law, 365; Jennings v. Le Breton, 80 Cal. 8, 21 Pac. 1127; Cleve- land V. Tripp, 13 R, I. 50; Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535; O'Reilley v. Kingston, 114 N. Y. 439, 21 N. E. 1004; Heman Const. Co. v. McManus (Mo. App.) 77 S. W. 310. 8 7 Clapp V. Hartford, 35 Conn. 66; Brown v. Central Bermudez Co. (Ind. Sup.) 69 N. E. 150; Taylor v. Chandler, 9 Heisk. (Tenu.) 349. 24 Am. Rep. 308: Agens v. Newark, 37 N. J. Law, 415, 18 Am. Rep. 729: Seely v. Pittsburgh, 82 Pa. 360, 22 Am. Rep. 700; Warren V. Grand Haven, 30 Mich. 24; Peay v. Little liock, 32 Ark. 31. § 113) SPECIAL ASSESSMENTS. ^9 benefit, and obvious excess of lev}' over betterment, have been declared to be confiscation, and properly enjoined.*' Exemptions. Local assessment is obviously an exercise of the taxing pow- er; and yet such assessments have generally been held not to come within the meaning of the word "taxation" as used in clauses of revenue statutes exempting certain property from taxation.*® For example, "all public taxes" ^^ has been held not to embrace local assessments. So also of the phrases "rates and assessments" ; ®^ "taxation of every kind" ; ®^ "tax- ation of every description" ; ®^ "all taxes, either state, parish, or city" ; ®* "all and every county, road, city, and school tax";®^ "taxes of every kind" ; ^* "charges and imposi- tions";®^ "any tax or public imposition whatever";®* "taxes, charges, and impositions." ®® In short, exemption from gen- eral taxation does not exempt from local assessment. But it 88 Norwood V. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443; Town of Macon v. Patty, 57 IMiss. 378, 34 Am. Rep. 451; Bogert V. Elizabeth, 27 N. J. Eq. 568; McCormack v. Patchin, 53 Mo. 33, 14 Am. Rep. 440. 89 Adams County v. Quincy, 130 111. 566, 22 N. E. 624, 6 L. R. A. 1.55; Ford v. Land Co.. 164 U. S. 662, 17 Sup. Ct. 230, 41 L. Ed. .590; Lima v. Cemetery Ass'n. 42 Ohio St. 128, 51 Am. Rep. 809; City of Atlanta v. First Presb. Church. 86 Ga. 730, 13 S. E. 252, 12 L. R. A. 852; Oliver Cemetery Co. v. Philadelphia, 93 Pa. 129, 39 Am. Rep. 132; In re City of New York, 11 Johns. (N. Y.) 77; City of Baltimore V. Cemetery Co., 7 Md. 517. 90 Buffalo City Cemetery v. Buffalo, 46 N. Y. 506. 91 Northern Liberties v. St. John's Church, 13 Pa. 104. 9 2 Sheehan v. Good Samaritan Hospital, 50 Mo. 155, 11 Am. Rep. 412. 93 City of Paterson v. Society, 24 N. J. Law, 385. 94 City of La Fayette v. Asylum, 4 La. Auu. 1. 95 Trustees of Illinois & M. Canal v. Chicago, 12 111. 403. nc Illinois Cent. R. Co. v. Decatur, 126 111. 92, 18 N. E. 315, 1 L. R. A. (il3. «" City of Baltimoi'e v. Proprietors, 7 Md. 517. 98 City of Bridgeport v. Railroad Co., 36 Conn. 255, 4 Am. Rep. 63. 99 New Jersey R. & Transp. Co. v. Newark, 27 N. J. Law, 185. 340 IMPROVEMENTS. (Ch. 13 has been held that "exemption from all assessments and taxes whatever by the city" exempts from local assessment ; ^°° and so also of exemptions from "all civil impositions, taxes, and rates." ^°^ It is a question of legislative intention, to be ascertained by statutory interpretation, and it has been held to be constitutional for the legislature to exempt from special assessment as well as from general taxation.^ °^ ENFORCING COLLECTION. 114. Special assessments, being charges upon particular prop- erty, may be collected by enforcing tbe lien on tlie property in the method prescribed by the statute. In some states they have been held to afford ground for personal judgment against the property owner; but the -weight of authority, as ivell as the reason of the matter, opposes such remedy for the enforcement of a special assessment. No valid lien exists unless the assessment has been made in substantial compliance with the provisions of the enabling act.^°^ When these have been complied with, the lien becomes 100 First Division of St. Paul & P. R, Co. v. St. Paul, 21 Minn. 526. 101 Harvard College v. Boston, 104 Mass. 470. 102 Dyker Meadow Land & Improvement Co. v. Cook, 3 App. Div. 164, 38 N. Y. Supp. 222; Yates v. Milwaukee, 92 Wis. 352, 06 N. W. 248; City of Richmond v. Railroad Co., 21 Grat. (Va.) 604. 103 Inhabitants of Village of Houstonia v. Grubbs, 80 Mo. App. 433; Huff v. Jacksonville, 39 Fla. 1, 21 South. 770; Rosetta Gravel- Paving & Improvement Co. v. Jollisaint, 51 La. Ann. 804, 25 South. 477; Ardrey v. Dallas, 13 Tex. Civ. App. 442, 35 S. W. 726. A levy of a special assessment for the construction of an im- provement is necessary to the creation of a lien, so that, where no levy has been made by the city council, no lien will be created by certifying the expense of the improvement to the council. Hall v. Moore (Neb.) 92 N. W. 294. See Cemausky v. Fitch (Iowa) 96 N. W. 754, where it was held that the lien attached at the time that the certificate of the resolution for the improvement was filed by the city clerk with the county auditor as required by statute, though the § 114) ENFORCING COLLECTION. 341 fixed in favor of the city, and is not impaired by official mis- conduct or defective performance in the work of improve- ment.^"* The city usually provides in its contract for im- •irovement that the contractor shall receive these liens in compensation for performance of his contract, and they are then subject to enforcement according as the local law may provide — by the contractor as assignee, or by the city for his use and benefit. In either case the assessment levy must be satisfied, and the owner cannot enjoin the same or recoup for damages resulting from failure of or defect in the work of improvement after it has been accepted by the duly consti- tuted authorities.^"* Personal Liability. The power of the legislature to declare a local assessment to be a personal charge against the owner as well as a lien upon his property has been strenuously contested in many work had been previously completed. Special assessments do not become liens save as made so by statutory authority. Id. 104 Dressman v. Bank, 100 Ky. 571, 38 S. W. 1052. 36 L. R. A. 121; Makley v. Whitmore, 61 Ohio St. 587, 56 N. E. 461; Adams v. Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, 77 Am. St. Rep. 484; Conlin v. Seaman, 22 Cal. 549; City of Lowell v. Hadley, 8 Mete. (Mass.) 194; Williams v. Holden, 4 Wend. (N. Y.) 227. 105 Sunderland v. Martin, 113 Ind. 411, 15 N. E. 689; City of Hen- derson V. Lambert. 14 Bush (Ky.) 24; McDonald v. Murphree, 45 Miss. 705; Douglass v. Harrisville, 9 W. Va. 162, 27 Am. Rep. 548; Inhabitants of Towns of Windsor & Suffield v. Field, 1 Conn. 284; Hovey v. Mayo, 43 Me. 322; Chinn v. Trustees, 32 Ohio St. 238; Vanderbeck v, Jersey City, 29 N. J. Law, 441; City of Peoria v. Kidder, 26 111. 358; Old Colony R. Co. v. Fall River, 147 Mass. 455, 18 N. E. 425; Taylor v. Palmer, 31 Cal. 240; Gage v. Evans, 90 111. 569; Cochran v. Collins, 29 Cal. 129; Hey wood v. Buffalo, 14 N. Y. 534; Hughes v. Kline. 30 Pa. 230; Strenna v. City Council, 86 Ala. 340, 5 South. 115. Where during the time improvements were being made opposite the owner's property he knew the work was being done and took no steps to prevent the same and did not object thereto, he was estopped from questioning his liability for a portion of the expense assessed against the property. Nowlen v. Benton Harbor (Mich.) 96 N. W. 4.50. 342 IMPROVEMENTS. (Ch. 13 states, while in others it has been allowed to pass unchallenged. The cases supporting and denying this power are perhaps nearly equal in number ; but recent judicial tendency, and probably the majority of seriously contested cases, concur with text-writers in denying the power of the legislature to make a personal charge out of this character of assessments.^"® On the one hand, it is contended that such personal charge is opposed to the definition of a "local assessment," and that the municipality may always protect itself in any proper im- provement by purchasing the property for its assessment ; ^"'^ to which it has been replied that "it is not land the govern- ment needs ; it is money. The tax is assessed in money, to be paid by the owner of the money." ^°® In a recent Alaska case it was held that abutting property owners who had peti- tioned the city for a specific street improvement, and had seen the improvement made in accordance with their petition in front of their property, were liable to the municipality for the cost of the same in an action of assumpsit upon an implied con- tract for materials furnished and work and labor done.^°® 106 City of Seattle v. Yesler, 1 Wash. T. 571; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Manning v. Den, 90 Cal. 610, 27 Pac. 435; Green v. Ward, 82 Va. 324; Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330; Broadway Baptist Church v. McAtee. 8 Bush (Ky.) 508, 8 Am. Rep. 480; Craw v. Tolone, 96 111. 255, 36 Am. Rep. 143; City of Burlington v. Quick, 47 Iowa, 222; Higgins V. Ausmuss, 77 Mo. 351. Contra: Clemens v. Baltimore, -•;sE;ij 16 Md. 208; Bennett v. Buffalo, 17 N. Y. 383; Hazzard v. Heacock, 39 Ind. 172; City of Lowell v. French, 6 Cush. (Mass.) 223; City of New Orleans v. Wire. 20 La. Ann. 500; Bonsall v. Lebanon, 19 Ohio, 419 ; Lovell v. St. Paul, 10 Minn. 290 (Gil. 229). 107 Elliott, Roads «& S. § 400. 108 Brown, J., in Litchfield v. McComber, 42 Barb. (N. Y.) 288. 109 Town of Nome v. Lang, 1 Alaska. 593. §115) POLICE POWERS AND KEGLLATIONS. 343 CHAPTER XIV. POLICE POWERS AND REGULATIONS. 115. Essential to a Municipality. 116. Delegation. 117. Limitation of Power. 118. Exercise of Power. 119. Double Police Power. 120. Peace and Order. 121. Sanitation. 122. Safety. 123. Comfort. 124. Occupations and Amusements. 125. Markets. 126. Violation and Enforcement ESSENTIAL TO A MUNICIPALITY. 115. The police poorer, inherent in the state as a paramount and inalienable attribute of sovereignty, is essential to a municipality as a public corporation. The English conception of the poHce power is thus given by Blackstone : "The due regulation and domestic rule of the kingdom whereby the individuals of the state, like the members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffen- sive in their respective stations." ^ As a paramount sovereign power, its lineage may be traced to the ancient maxim, "salus populi est suprema lex." It is the expression of that instinct of self-preservation inherent in every animate creature, and attributed as essential to all nations, states, and corporations, whetlier public or private. It is the inherent faculty and function of life itself; and no person, natural or artificial, no » 4 Bl. Comm. 162. 344 POLICE POWERS AND REGULATIONS. (Ch. 14 State or corporation, to which this right and power is denied, has any real Hfe, and its bare existence will be ephemeral, barren, and useless. It is an adaptation to public use of that ancient Latin maxim, "Sic utere tuo ut alienum non Isedas," and not only requires from the owner of property due respect and consideration for his neighbor's rights, but in case of emergency warrants the destruction of property without com- pensation to an owner, who is wholly without fault. This extraordinary and dangerous power is not of constitutional origin or grant. ^ It is institutional and inherent in govern- ment; and, as wisely remarked by Chief Justice Shaw, "it is much easier to perceive and realize the existence and source of this power than to mark its boundaries or prescribe limits to its exercise." ^ There are constitutional limitations upon it,* but they are not always of easy application; and, since it is essentially a discretionary power, its chief limitation has been found in that common reason of enlightened judicial tribunals which was declared by Lord Coke to be the "very life of the common law." ^ When exercised by due process of law, as in the abatement of nuisances through civil or criminal proceeding, this power is usually found to be wholesome and beneficial. Its summary exercise is always perilous to private right, and often cruelly unjust; as when in emergency, appar- ent or real, the property of one is sacrificed for the protection of others, or one is deprived of his personal liberty for the supposed safety of the many. 2 Harmon v. Chicago, 110 111. 400, 51 Am. Rep. 698; Taylor v. Railroad Co., 6 Cold. (Tenn.) 646, 98 Am. Dec. 474; Village of Carthage v. Frederick, 122 N. Y. 273, 25 N. E. 480, 10 L. R. A. 178, ■^ Am. St. Rep. 490. « Slaughterhouse Cases, 16 Wall. (U. S.) Sr,, 21 L. Ed. 394; Com- monwealth V. Alger, 7 Cush. (Mass.) 53; Thorpe v. Railroad Co., 27 Vt. 140, G2 Am. Dec. 625. Cf. Cooley, Const. Lim. (6th Ed.) 704. 4 A police regulation operating unreasonably beyond the occasions of the enactment is not invalid because it may affect incidentally the exercise of some right guaranteed by the Constitution. Ander- son V. State (Neb.) 96 N. W. 149. 6 Co. Litt. 97, 183. § 116) DELEGATION. S45 DELEGATION. 116. The police poorer may be delegated by the state to a mu- nicipal corporation as a public function to be exercised within proper limits for all appropriate municipal purposes. As we have heretofore seen,® the delegation of legislative power to a municipality, after much contention, has been es- tablished as constitutional by repeated adjudication. No stronger case can be made against this than in the matter of the police power. This is the paramount power in the state. It is supremely sovereign in its nature, involving discretion in its exercise, and often consequent deprivation and destruc- tion. But even this great power has been so long exercised by municipal corporations, has been found so essential to the public welfare, and its delegation has been so often sustained by judicial decision, as to be established beyond question.'^ The extent of its exercise is always within the legislative con- trol. The police power delegated may be total or partial, or it may be entirely withheld by the legislature from the mu- nicipality. It has been decided, however, in some cases that a certain measure of police power is one of the inherent or essential powers of a municipality, for which no legislative grant is necessary,* b''ing as we have seen in the last sec- eAnte, § 73. 7 People V. Pierce, 83 N. Y. Supp. 79, 85 App. Div. 125; 1 Dill. Mud. Corp. §§ 141, 308; Elliott, Mun. Corp. § 89; Tied. Mun. Corp. §§ 116, 147; 2 Beach, Pub. Corp. §§ 249, 582. While the legislature usually delegates to local authorities the regulation and control of the public rights in the streets, it may at any time resume such authority and exercise as it deems best. New England Telephone & Telegraph Co. v. Terminal Co., 182 Mass. 397, 65 N. E. 835; Boston Electric Light Co. v. Same, Id. 8 Vionet v. Municipality, 4 La. Ann. 42; Gundling v. Chicago, 176 111. 340, 52 N. E. 44, 48 L. R. A. 230. The legislature may invest municipal corporations with the police power of the state, in whole or in part, in the absence of consti- 346 POLICE POWERS AND REGULATIONS. (Ch. 14 tion, an essential attribute of all life, corporate and individual. It is usual for the charter to contain an e::^press grant of police powers, or the same may be easily implied from the power granted to pass ordinances regulating the conduct, com- merce and business in the municipality. The power thus grant- ed, being peculiarly governmental, is one which the munici- pality must exercise for the public welfare, and may not either directly or indirectly abridge or alienate it' It has accordingly been held that a city council cannot bind itself nor its successors by contract to a course of conduct or of mu- nicipal inaction derogatory to the police power delegated by the state to the municipality.** LIMITATION OF POWER, 117. Those poivers conferred upon a municipal corporation ivhicli in their exercise conduce to protect the public safety and health and promote the comfort and con- venience of the citizens and the general ^xrelfare of the municipality manifest the legislative intention in re- gard to the delegation of the police poiver to the mu- nicipality. The corporation boundaries usually mark the limit for the exercise of the police power by the municipality ; but in many tutional prohibition. City of Danville v. Hatcher, 101 Va. 523, 44 S. E. 723. 8 State V. Graves, 19 Md. 351, 81 Am. Dec. 639; Kittanning Elec- tric Light, Heat & Power Co. v. Kittanning Borough, 11 Pa. Super. Ct 31; City of McKeesport v. Railway Co., 2 Pa. Super. Ct. 242; Capdevielle v. Railroad Co., 110 La. 904, 34 South. 808. A city cannot by contract devest itself of the power to enforce proper police regulations. City of Carbondale v. Wade, 106 111. App. 654. 10 Davenport v. Richmond City, 81 Va. 636, 59 Am. Rep. 694; Davis V. Mayor, 14 N. Y. 506, 67 Am. Dec. 186; Britton v. New York, 21 How. Prac. (N. Y.) 251; Mayor, etc., of City of New York v. Britton, 12 Abb. Prac. (N. Y.) 367; Goszler v. Georgetown, 6 Wheat (U. S.) .593, 5 L. Ed. 339. I § 117) LIMITATION OF POWEK. 847 instances, for the preservation of the public health especially, the municipality is granted police power beyond its bound- aries.^^ Thus, it has been held that the grant of power to acquire territory for a water supply beyond the limits of the municipality is within the competency of the legislature,^^ and that the municipality may exercise police power in the protection of the territory thus acquired to insure cleanli- ness, and prevent any business and conduct likely to corrupt the fountain of water supply for the city.^^ So, likewise, to acquire outside territory for sewerage purposes, and to exercise police power over the same ; ^* also to establish quar- antine beyond the municipal boundaries and thus protect the citizens from epidemic of any contagious or infectious dis- ease; ^^ also to locate and regulate houses of detention and hospitals for infectious and contagious diseases beyond the citv limits.^* 11 Cbieago Packing & Provision Co. v. Chicago, SS 111. 221, 30 Am. Rep. 545. 12 City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601; Burden v. Stein, 27 Ala. 104, 62 Am. Dec. 758; Mayor, etc., of City of New York v. Bailey, 2 Denio (N. Y.) 438; Mayor, etc., of City of Home V. Cabot, 28 Ga. 50; Martin v. Gleason, 139 Mass. 183, 29 N. E. 664; People v. McClintock, 45 Cal. 11. But a municipality which buys a piece of land on a private stream, outside the corporate limits, does not thereby acquire the right to appropriate the water of the stream. Sparks Mfg. Co. v. Newton, 60 N. J. Eq. 399, 45 Atl. 596; Ingersoll v. Same, Id. 13 Dimham v. New Britain, 55 Conn. 378, 11 Atl. 354; People v. Borda, 105 Cal. 636, 38 Pac. 1110; City of Coldwater v. Tucker, supra. 14 City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601. IB Harrison v, Baltimore, 1 Gill (Md.) 204; City of Anderson v. O'Conver, 98 Ind. 168; Thomas v. Mason, 39 W. Va. 526, 20 S. E. 580, 26 L. R. A. 727; Hurst v. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. R. A. 484, 47 Am. St. Rep. 525. i«Aull V. Lexington, 18 Mo. 401; Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203; City of Anderson v. O'Conuer, 98 Ind. 168; Hazen v. Sti-oug, 2 Vt 427. 348 POLICE POWERS AND REGULATIONS. (Ch. 14 Extent of Power. The extent to which municipalities may exercise the police power is not dependent upon the size of the city or village, but upon the charter grant of powers. A small village may thus have as much police power as a large city.^^ The phrase "police powers" has often been used in the charter as ex- pressing the legislative grant to the municipality. In such case the city may pass reasonable ordinances for the protec- tion of the lives, limbs, health, comfort, and quiet of its citi- zens;^* and it has been held that such measure of police power as this is inherent in a municipal corporation, as being essential to the performance of its municipal functions as a public agency of the commonwealth.^^ Usually there is found in the charter separate mention of the various subjects over which police power may be exercised, and over some of them the municipal control given may be only partial or imperfect. In such case the maxim, "Expressio unius est exclusio alter- ius," is often applied, and under a general grant of police power the municipality has been limited to the subjects spe- cially mentioned, or at most to those and such others as abso- lutely require the exercise of this power for the welfare of the community.^" 17 City of OwensDoro v. Sparks, 99 Ky. 351, 36 S. W. 4; Stetson V. Kempton, 13 Mass. 272, 7 Am. Dec. 145. 18 The police power of a city extends to the regulation of water rates. City of Knoxville v. Water Co., 107 Tenn. 647, 64 S, W. 1075, 61 L. R. A. 888. A city may have a building demolished as unsafe. O'Rourke v. New Orleans, 106 La. 313, 30 South. 837. The charter of the city of Chicago gives the city power to limit the fare to be charged by street railways, and it was held in Chi- cago Union Traction Co. v. Chicago, 199 111. 484, 65 N. E. 451, 59 L. R. A. 631, that, as a necessary incident to such power, it could enact ordinances requiring street railway companies to furnish trans- fer tickets entitling passengers to ride on a connecting line of the same company without the payment of an additional fare. 19 .Judy V. Lashley, 50 W. Va. 628, 41 S. E. 197, 57 L. R. A. 413. 20 Stetson v, Kempton, 13 Mass. 272, 7 Am. Dec. 145; Carey v. Washington, 5 Cranch C. C. (U. S.) 13, Fed. Cas. No. 2,404. \ § 118) EXERCISE OF POWEB. 349 EXERCISE OF POWER. 118. Tlie police po^ver delegated to tlie municipality may be exercised either in the ordinary or in a summary manner. The ordinary method is by the enactment of ordinances, and their enforcement by due process of law ; as where one is prosecuted under a municipal warrant in a municipal court for breach of some police ordinance — such as one forbidding the keeping of a pig sty or a gambling house within the mu- nicipal limits. The summary method is that permitted to be used only in cases of emergency, when it becomes necessary to destroy individual property, or even take individual life, as the only apparent means of protecting the public and pre- venting still greater calamity. The municipality may lawfully employ through its police officers just so much force as is necessary to disperse a mob or quell a riot, even to the extent of maiming or killing persons engaged in the mob or riot,^^ provided such an extreme measure is necessary for the pro- tection of the public; and in case of great conflagration in a city, which cannot otherwise be stopped, the municipality, through its proper authorities, may lawfully, and with im- punity, tear down or blow up buildings owned by private citizens, in order to arrest tl - progress of the flames.^^ License. This power is also exercised by requiring municipal license for engaging in certain occupations, not as a means of revenue, 21 Stewart v. New Orleans. 9 La. Ann. 461, 61 Am. Dec. 218; OARGAN V. .MOBILE, 31 Ala. 469, 70 Am. Dec. 505. 22 Baumgartner v. Hasty, 100 Ind. 575, .50 Am. Rep. S30; Conwoll V. Emrie, 2 Ind. 35; Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109: Correas v. San Francisco. 1 Cal. 4.52; Dunbar v. Alcalde Ayunta- miento, 1 Cal. 355; Bowdltch v. Boston, 101 U. S. 16, 25 L. Ed. 980; Field V. Dos Moines, 39 Iowa, 575, 28 Am. Rep. 46; Keller v. Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613; 2 Kent, Comm. 339. 350 POLICB POWBRS AND REGULATIONS. (Cll. 14 but for the protection of the public.^' Licenses are often granted by the municipality under state authority for the purpose of raising- municipal revenue. When revenue is the purpose, then the municipahty, within the Hmit allowed by law, exercises discretion as to the amount of tax to be paid by the licensee. When the license is required, however, in the exercise of a police power, then only such charge therefor may be made a.: fairly represents the expense incident to the exer- cise of the power.-* Whether the license is for police or rev- enue, if not shown in the ordinance requiring it, will appear from the construction of the municipal charter. DOUBLE POIilCE POWDER. 119. The legislature may confer police power npon a mnnici- pality over subjects ivithiii the provisions of existing state lavrs. The general laws of the state apply as well to municipal corporations as to outside territory, and there is special necessity for the exercise of the police power in urban com- munities. Jurisdiction to enforce these state laws is often conferred upon the municipal courts ; yet none of these things prevents the state from conferring police power upon munici- palities over the same subject-matter.^^ But it has been 2 3 Welch V. Hotchkiss, 39 Conn. 140, 12 Am. Rep. 383; Ft. Smitb V. Ayers, 43 Ark. 82; Ward v. Washington, 4 Cranch, C. C. (U. S.) 232, Fed. Caa No. 17,163; Barthet v. New Orleans (C. C.) 24 Fed- 563; Carroll v. Tuskaloosa. 12 Ala. 173. 24 Ash V. People, 11 Mich. 347, 83 Am. Dec. 740 ; Welch v. Hotch- kiss, 39 Conn. 140, 12 Am. Rep. 383; City of Boston v. Schaffer, 9 Pick. (Mass.) 415. An ordinance imposing a license duty upon city cars for revenue pm-poses only is not an ordinance for police and internal govern- met. Mayor, etc., of City of New York v. Railroad Co., 32 N. Y. 261. See, also, Johnson v. Philadelphia, 60 Pa. 445; Hoclges v. Nash- ville, 2 Humph. (Teun.) 61 (control of theaters). 25 State V. Ludwig, 21 Minn. 202; City of Brooklyn v. Toynbee, § 119) DOUBLE POLICE POWEB. 351 held that police power in such cases is not inherent in a mu- nicipal corporation ; nor can it be implied, but must be ex- pressly conferred.^* Other cases favor the implication of police power in the municipality where the offense does not vitally affect the public interests, but specially concerns the municipal welfare.^'^ Moreover, as we have heretofore seen,^® a majority of the states permit the enforcement of both state and municipal penalties for the same unlawful act, as being not only against the peace and dignity of the state, but also against the municipal welfare.** 31 Barb. (N. Y.) 282; State v, Quong (Idaho) 67 Pac. 491; Town of Rosedale v. Hanner, 157 Ind. 390, 61 N. E. 792; Cooley, Const. Lim. (6tli Ed.) 239. 28 City of Frankfort v. Aughe, 114 Ind. 77, 15 N. E. 802; Id., 114 Ind. 600, 15 N. E. 804; Ex parte Bourgeois. 60 Miss. 663, 45 Am. Rep. 420; Loeb v. Attica. 82 Ind. 175, 42 Am. Rep. 494; State t. Langston, 88 N. C. 692; Mayor, etc., of City of Mobile v. Allaire, 14 Ala. 400. 27 Town of Bloomfield v, Trimble, 54 Iowa, 399, 6 N. W. 586. 37 Am. Rep. 212; Barter v. Commonwealth, 3 Pen. & W. (Pa.) 253; Davis V. Anita, 73 Iowa, 325, 35 N. W. 244; City of Amboy v. Sleeper, 81 III. 499. See Carey v. Washington, 5 Cranch, C. C. (U. S.) 13, Fed. Cas. No. 2.404; City of St. Paul v. Laidler, 2 Minn. 190 (Gil. 159), 72 Am. Dec. 89. 28 Ante, § 77. 29 State V. Flint, -63 Conn. 248, 28 Atl. 28; Hankins v. People. 106 111. 628; Williams v. Warsaw. 60 Ind. 457; Rogers v. Jones, 1 Wend. (N. Y.) 261, 19 Am. Dec. 493; Greenwood v. State, 6 Baxt. (Tenn.) 567, 32 Am. Rep. 539; City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; People v. Bay City, 36 Mich. 186; City of Lebanon v. Gordon, 99 Mo. App. 277, 73 S. W. 222; State v. Muir, 86 Mo. App. 642; Id., 164 Mo. 610, 65 S. W. 285. See Taylor v. Sandersville, 118 Ga. 63, 44 S. E. 845. 352 POLICE POWERS AND REGULATIONS. (Ch. 14 PEACE AND ORDER. 120. The preservation of the public peace and order is the primary police function of a municipality. Whatever contention may have arisen over municipal poHce power, the authority to preserve the peace and order of the municipahty, to prevent the exercise of unlawful violence, and to compel citizens and sojourners to abstain from riot, rout, and unlawful assembly has never been seriously ques- tioned. It is regarded as an inherent municipal power es- sential to municipal life ; and so, whenever the authority has been mooted, it has been uniformly sustained, in some cases even to the extent of the doubtful power of double punish- ment.^" For even those decisions which hold such double punishment to be violative of constitutional provision are not based upon the want of municipal authority, but upon th^ positive prohibition against putting a person twice in jeop- ardy.^^ Municipal regulations preservative of peace and or- der do not assume to punish crime against the state, but are confined to small offenses and lighter demonstrations of vio- lence and disorder tending to crime. They are essentially means for the prevention of crime as well as the preservation of peace and order,^^ and are therefore favored by the courts 30 City of Carlisle v. Heckinger, 103 Ky. 381, 45 S. W. 358; Kansas City V. Hallett, 59 Mo. App. 160. Cases supra, note 29. But see Ex parte Cross, 44 Tex. Cr. R. 376, 71 S. W. 289. 31 Ex parte Bourgeois, 60 Miss. 6G3, 45 Am. Rep. 420; State v. Keith, 94 N. C. 933; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 751. 82 Jefferson City v. Courtmire, 9 Mo. G92; Vason v. Augusta, 38 Ga. 542; Town of Wasliington v. Hammond, 76 N. C. 33; City of New Orleans v. Miller, 7 La. Ann. 651. A charter right of control over highways, streets, alleys, and. pub- lic grounds authorizes an ordinance forbidding the making of any public address in a public place without first obtaining permission from the mayor. Love v. Judge, 128 Mich. 545, 87 N. W. 785, 55 L. R. A. 618. See Lincoln v. Boston, 148 Mass. 578, 20 N. E, 329, § 121) SANITATION. 353 as wise provisions for increasing- civilization. Such regula- tions are indispensable to municipalities in those states which, as a measure of public policy, declare public corporations re- sponsible for the public peace and preservation of private property, and make them absolutely liable for damages done by a mob within the corporate boundaries.^' SANITATION. 121. The preservation of the health of the popniation Is nnl- formly recognized as a most important municipal function; and the poiver to adopt and enforce sanitary regulations appropriate to this end is inherent in a municipality. Congested populations tend to breed disease as well as disorder, and since health as well as order is an essential condition of good living, and one of the primary purposes of municipal incorporation, sanitary powers may not only be expressly conferred by the charter, or implied therefrom, but they have been judicially declared to be inherent in a munici- pality as a necessary attribute thereof,^* and have been ex- 3 L. R. A. 257, 12 Am. St. Rep. 601; Brooklyn Park Com'rs v. Arm- strong, 45 N. y. 234, 6 Am. Rep. 70; Minneapolis & St. L. Ry. Co. V. Beckwith, 129 U. S. 26, 9 Sup. Ct. 2U7, ^2 L. Ed. 585; City of Wilkes-Barre v. Garebed, 9 Kulp (Pa.) 273; City of Grand Rapids v. Newton, 111 Mich. 48, 69 N. W. 84, 35 L. R. A. 226, 66 Am. St. Rep. 387. 33 DARLINGTON v. NEW YORK, 31 N. Y. 164, 88 Am. Dec. 248; Campbells Adm'x v. City Council, 53 Ala. 527, 25 Am. Rep. 656. Municipalities are liable for whatever damages may be caused by mobs or riotous assemblages within their respective limits. Street V. New Orleans, 32 La. Ann. 577. But this is not so at common law. ^L\YOR, ETC., OF BALTIMORE v. POULTNEY, 25 Md. 107; Pra- ther V. Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585. 34 Appeal of Borough of Butler (Pa.) 1 Atl. 604; Town of Greens- boro V. Ehrenreich, 80 Ala. 579, 2 South. 725, 60 Am. Rep. 130; (bundling v. Chicago, 176 111. 310, 52 N. E. 44, 48 L. R, A. 230; Mon- roe V. Lawrence. 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520. ING.COBP, — 23 354 POLICE POWERS AND REGULATIONS. (Ch. 14 r ercised in ways innumerable. These powers are favored in American courts, and it has been accordingly held that, since a supply of wholesome water is necessary to the comfort and well-being of a city,'" a municipal contract for the boring of an artesian well is an exercise of the police power. And so. likewise, the city may make such regulations as will insure pure milk,^® or prevent the spread of a deadly disease in a fruit-producing tree.^^ So, also, it may regulate the cultiva- tion of crops, such as rice, within the corporate limits,^ ^ the cleaning and care of sinks and cesspools,'® burial of the dead,'*'' and the location and operation of slaughter houses.*^ It is competent also for a city to establish quarantine regula- tions,*^ pesthouses, and places of detention,*' and to exclude, 3e Kennedy v. Phelps, 10 La. Ann. 227; Town of Suffield v. Hathaway. 44 Conn. 521, 26 Am. Rep. 483; Smith v. Nashville, 88 Tenn. 464, 12 S. W. 924. 7 L. R. A. 469. 36 State v. Dupaquier, 46 La. Ann. 577, 15 South. 502, 26 L. R. A. 162, 49 Am. St. Rep. 334; People v. Vandecarr, 81 App. Div. 128, 80 N. Y. Supp. 1108, Id., 175 N. Y. 440, 67 N. E. 913. 3 7 Bissell V. Davison, 65 Conn. 183, 32 Atl. 348, 29 L. R. A. 251. Cf. Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253. 38 Town Council of Summerville v. Pressley, 33 S. C. 56, 11 S. E. 545, 8 L. R. A. 854, 26 Am. St Rep. 659; Green v. Savannah, 6 Ga. 1. 39 Commonwealth v. Cutter, 156 Mass. 52, 29 N. E. 1146; Nicouliii V. Lowery, 49 N. J. Law, 391, 8 Atl. 513. 40 Graves v. Bloomington, 17 111. App. 476; CITY OF AUSTIN v. ASSOCIATION, 87 Tex. 330, 28 S. W. 528. 47 Am. St. Rep. 114; COATES V. NEW YORK, 7 Cow. (N. Y.) 586; In re Bohen, 115 Cal. 372, 47 Pac. 55, 36 L. R. A. 618. 41 Ex parte Heilbron, 65 Cal. 609, 4 Pac. 648; Belling v. Evans- ville. 144 Ind. 644, 42 N. E. 621, 35 L. R. A. 272; Huesing v. Rock Island, 128 111. 465. 2l N. E. 558, 15 Am. St. Rep. 129; Inhabitants of Watertown v. Mayo. 109 Mass. 315, 12 Am. Rep. 694. 42 Markham v. Brown, 37 Ga. 277, 92 Am. Dec. 73; Train v. Bos- ton Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527. 4 3 Elliott V. Supervisors. 58 Mich. 452, 25 N. W. 461. 5& Am. Rep. 700: City of Clinton v. Clinton Co., 61 Iowa, 205, 16 N. W. 87. I § 121) SANITATION. 355 remove, or detain persons affected with, or who have been exposed to, contagious or infectious diseases.** It may reg- ulate also the removal of dead animals and garbage,*^ and compel citizens to prepare the same for removal at minimum expense ; *® and generally may suppress nuisance to fhe pub- lic health.*^ A'uisances. It is primarily within the power of a municipality to de- termine and declare what is a nuisance to health;*^ and the courts will not interfere with this discretion except in case of obvious abuse.** But whether a given thing is a nuisance is a qviestion of fact, and it is not within the power of a mu- nicipal corporation arbitrarily and without support of reason or *i HARRISON V. BALTIMORE, 1 Gill (Md.) 264; Hurst v. War- ner. 102 Mich. 238. 60 N. W. 440. 26 L. R. A. 484, 47 Am. St. Rep. .".25; City of Chicago v. Peck, 98 111. App. 434; Id., 196 111. 260, 63 X. E. 711; Frazer v. Chicago, 186 III. 480, 57 N. E. 105.5, 51 L. R. A. 306, 78 Am. St. Rep. 296; City of Anderson v. O'Conner, 98 Ind. 168. *5 Ex parte Casinello, 62 Cal. 538; In re Vandine, 6 Pick. (Mass.) 187, 17 Am. Dec. 351; Her v. Ross, 64 Neb. 710. 90 N. W. 869. 5V L. R. A. 895, 97 Am. St. Rep. 676; Alpers v. San Francisco (C. C.l 32 Fed. 503; City of Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269; Smiley v. MacDonald. 42 Neb. 5, 60 N. W. 355. 27 L. R. A. .540, 47 Am. St. Rep. 684; Schoen v. Atlanta, 97 Ga. 697, 25 S. E. 380, 33 L. R. A. 804; Balch v, Utica, 42 App. Div. 562, 59 N. Y. Supp. 513. 4fi City of Grand Rapids v. De Vries, supra; Sanitary Reduction Works of San Francisco v. Reduction Co. (C. C.) 94 Fed. 693. 4T Baker v. Boston, 12 Pick. (Mass.) 184. 22 Am. Dec. 421; Hellen V. Noe, 25 N. C. 493: Ferguson v. Selma, 43 Ala. 398; Harvey v. Dewoody, 18 Ark. 252; Manhattan Mfg. & Fertilizing Co. v. Van Kenren, 23 N. J. Eq. 251; Kennedy v. Phelp?;, 10 Kn. Ann. 227; Smith V. Collier, 118 Ga. 306, 45 S. E. 417; Municipality No. 1 v. Wilson. 5 La. Ann. 747; Lake v. Aberdeen. 57 Miss. 260; Vason v. Augusta, 38 Ga. 542; Dunham v. New Britain, 55 Conn. 378, 11 Atl. ;r4. 48 Laugel V. Bushuell. 197 111. 20, 63 N. E. 1086, 58 L. R. A_ 266: HART V. MAYOR. 9 Wend. (N. Y.) 571, 24 Am. Dec. 165; Harrison V. Baltimore, 1 Gill (Md.) 264. 48 Baker V. Boston, 12 Pick. (Mnss.) 1S4. 22 Am. Dec. 421. .'556 POLICE POWERS AND REGULATIONS. (Ch. 14 fact to declare that which is harmless a nuisance.""* A cor- poration cannot make a thing a nuisance by declaring it so.^^ "This would place every house, every business, and all the property in the city at the uncontrolled will of the temporary local authorities." "^^ The power to regulate does not give power to prohibit ; "' and therefore a city may not absolutely forbid the sale of meat or secondhand clothing, or other law- ful business not in itself necessarily a nuisance."^* Ordinarily, the municipality must resort to the usual process of law to abate a health nuisance ; ^^ but the state may confer upon it the power of summary abatement in case of emergency.^* 50 Block V. Jacksouville, 36 111. 301; Nazwortby v. Sullivan, 55 111. App. 48; Everett v. Council Bluffs, 46 Iowa, 66; Tissot v. Tele- lihone Co., 39 La. Ann. 996, 3 South. 261, 4 Am. St. Rep. 248. 51 Ward V. Little Rock, 41 Ark. 526, 45 Am. Rep. 46; Harmon v. Chicago, 110 111. 400, 51 Am. Rep. 098; State v. Mott, 61 Md. 297, 48 Am. Rep. 105; Ex parte O'Leary, 65 Miss. 80, 3 South. 144, 7 Am. St. Rep. 640; Poyer v. Des Plaines, 123 111. Ill, 13 N. E. 819, o Am. St. Rep. 494. See City of Pittsburg v. W. H. Keech Co., 21 Pa. Super. Ct. 548, where it was held that declaring the thing prohibited a public nuisance would be no ground for denying validity lo the penal provision of the ordinance. An ordinance which declares that a nuisance which is not a nuisance is unreasonable and void. Munsell v. Carthage, 105 111. App. 119; City of Carthage v. Munsell, 203 111. 474, 67 N. E. 831; City of Carthage v. Duvall, 105 111. App. 123. See, also, Griffin v. Gloversville, 67 App. Div. 403, 73 N. Y. Sup?. 684. 52 Miller, J., in YATES v. MILWAUKEE, 10 Wall. (U. S.) 497, 19 L. Ed. 984. 53 State V. Taft, 118 N. C. 1190, 23 S. E. 970, 32 L. R. A. 122, 54 Am. St. Rep. 768. 54 Shiras v. dinger, 50 Iowa, 571, 33 Am. Rep. 138; Pickard v. Collins, 23 Barb. (N. Y.) 444; Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665; Town of Greensboro v. Ehrenreich, 80 Ala. 579, 2 South. 725, 60 Am. Rep. 130; Town of Crowley v. West, 52 La. Ann. 526, 27 South. 53, 47 L. R. A. 052, 78 Am. St. Rep. 355;- Harrison v. Brooks, 20 Ga. 537. 6 5 Clark V. Syracuse, 13 Barb. (N. Y.) 32; City of Ottumwa v. Chinn, 75 Iowa, 405, 30 N. W. 670; Newark Aqueduct Board v. Passaic, 45 N. J. Eq. ^V■:^, 18 Atl. 106. 66 Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Town of § 122) SAFETY. 357 SAFETY. 122. The safety of life, linil} and property being one of the prime objects of municipal incorporation, all appro- priate I'egiilations tending to promote this object are T^ithin the police poiver delegated to a municipality. Health, good order, and safety being prime objects of civ- ilization are the essential conditions of municipal life. It would be vain and useless to have good order and health in a city without security to person and property. Municipal corporations are therefore authorized in the exercise of police power to enact such ordinances and employ such necessary means as will insure safety to the private property as well as the persons of its citizens. ^^ Fire has been recognized as the greatest municipal peril, and measures to prevent the rise and spread of conflagrations are universal. Fire Limits. A city may therefore prescribe fire limits, and forbid the erection of wooden buildings therein.^* Most of the cases Davis y. Davis, 40 W. Va. 464, 21 S. E. 906; King v, Davenport, 98 III. 305, 38 Am. Rep. 89. 67 Commissioners of Easton v. Covey, 74 Md. 262, 22 Atl. 266; 2 Bac. Abr. 147; 2 Kent, Comm. 339. A city has been held to have the right of legal exercise of the police power to require a railroad company to raise its tracks so as to do away with grade crossings. Osburn v. Chicago, 105 111. App. 217. And a city may compel persons owning or having charge of property, in front of which is a sidewalk unsafe by reason of ice or snow, to make the walk safe by removal of the snow, or covering the ice with sand, within a reasonable time. State v. McMahon, 76 Conn. 97, 55 Atl. 591. 5 8 Knoxville Corp. v. Bird, 12 Lea (Tenn.) 121, 49 Am. Rep. 326; City of Troy v. Winters, 4 Thomp. & C. (N. Y.) 256; STATE v. JOHNSON, 114 N. C. &i6, 19 S. E. 599; Hine v. New Haven, 40 Conn. 478; State v. O'Neil, 49 La. Ann. 1171, 22 South. 352; Wadleigh v. Oilman, 12 Me. 403, 28 Am. Dec. 188; City of Rich- mond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. 358 POLICE POWERS AND REGULATIONS. (Ch. 14 hold such power to be inherent in the corporation,"" but some hold that it must be expressly conferred.^** A fire-limit or- dinance will prevent the construction of wooden buildings previously projected and contracted for,*^^ and it has been held that a wooden building erected in violation thereof may be summarily removed.*'^ The decisions with regard to rais- ing or repairing wooden buildings within fire limits are not harmonious ; but the weight of authority seems lo be that any enlarging or changing of a building or re-erection of one destroyed by fire, or removal, whether from without or within the fire limits, is an erection within the meaning of such or- St. Rep. 180; Id., 26 N. E. 184; McCloskey v. Kreling, 76 Cal. 511, 18 I'ae. 433; Eureka City v. Wilson. 15 Utah, 67, 48 Pac. 150, 62 Am. St. Rep. 904; Chimine v. Baker (Tex. Civ. App.) 75 S. W. 330; City of Roanoke v. Boiling (Va.) 43 S. E. 343; Ford v. Thralkill, 84 Ga. 169, 10 S. E. 600. 59 Mayor, etc., of City of Monroe v. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345; Kliugler v. Bickel, 117 Pa. 326, 11 Atl. 555; Commonwealth v. Tewksbm'y, 11 Mete. (Mass.) 55; Eichenlaub v. St. .loseph, 113 Mo. 395, 21 S. W. 8, 18 L. R. A. 590; City of Charles- ton V. Reed, 27 W. Va. 681, 55 Am. Rep. 33G; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; King v. Davenport, 98 111. 305, 38 Am. Rep. 89; Brady v. Northwestern Ins. Co., 11 Mich. 425; Kauf- man V. Stein, 138 Ind. 49, 37 N. E. 333, 46 Am. St. Rep. 368; Clark V. South Bend, 85 Ind. 276, 44 Am. Rep. 13. 6 City of Keokuk v. Scroggs, 39 Iowa, 447; Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 60S; City of Des Moines v. Gilchrist, 67 Iowa, 210, 25 N. W. 136, 56 Am. Rep. 341; Pratt v. Litchfield, 62 Conn. 112, 25 Atl. 461. 61 Knoxville Corp. v. Bird, 12 Lea (Tenn.) 121, 49 Am. Rep. 326: City of Salem v. Maynes, 123 Mass. 372. 62 McKibbin v. Ft. Smith, 35 Ark. 352; Mayor, etc., of City of Monroe v. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345; Klingler v. Bickel, 117 Pa. 326, 11 Atl. 565; Hine v. New Haven, 40 Conn. 478. But an owner is entitled to a reasonable time in which to erect the kind of building required by the ordinance. Lemmon v. Guthrie Center, 113 Iowa, 36, 84 N. W. 980, 80 Am. St. Rep. 361. See, also. Griffin v. Gloversville, 67 App. Div. 403, 73 N. Y. Supp. 684; Ward v. Murphy sboro, 77 111. App. 549. § 122) SAFETr. 359 dinance, and is unlawful." A city may also pass ordinances prescribing the maximum quantit}^ of gunpowder, dynamite, nitroglycerin, hay, excelsior, or other combustible or inflamma- ble material which may be stored in one place or kept in one house in the city.** It may also prescribe and enforce the construction of fire escapes on all buildings not strictly pri- vate.*^ Ordinances may also be enacted prescribing safe chim- neys, flues, and furnaces,*' and regulating the handling of coals, ashes, and the like; *^ and, indeed, any other reasonable regulation to prevent and extinguish fires. 63 Wadleigb v. Gilman, 12 Me. 403. 28 Am. Dee. 188; Eureka City V. Wilson, 15 Utah, 57, 48 Pac. 150, (]2 Am. St. Rep. 904; Brady V. Insm'ance Co., 11 Mich. 425; Griffin v. Gloversville, supra. As to repairs, see O'Brien v. Louer, 158 Ind. 211, 61 N. E. 1004. Contra, Contas v. Bradford, 206 Pa, 291, 55 All. 9S'J: Brown v. Hunn, 27 Conn. 334, 71 Am. Dec. 71; Borough of Stamford v. Stud- well, 60 Conn. 85, 21 Atl. 101. 64 Wright V. Railway Co., 27 111. App. 200 (petroleum); City Council of Charleston v. Elford, 1 McMul. (S. C.) 234; Clark v. South Bend, S5 Ind. 276, 44 Am. Rep. 13; Davenport v. Richmond City, 81 Va. 636, 59 Am. Rep. 694. In Dobbins v. Los Angeles, 139 Cal. 179, 72 Pac. 970. 96 Am. St. liep. 95, an ordinance making it unlawful to erect or maintain any ft'orks for the manufacture of gas within certain limits was held to be a legitimate exercise of the police power of the city. 65 Commonwealth v. Emsley, 5 Pa. Co. Ct. R. 476; Fire Depart- ment of New York v. Chapman, 10 Daly (N. Y.) 377; McCulloch v. Ayer (C. C.) 96 Fed. 178; City of New Orleans v. Danneman, 51 La. Ann. 1093, 25 South. 931; Fire Department of City of New York V. Sturtevant. .33 Hun (N. Y.) 407; Scbmalzried v. White, 97 Tenn. 37, 30 S. W. 393, 32 L. R. A. 782. See De Gintber v. Home, 58 N. J. Law, 354, 33 Atl. 968. 66 Commissioners of Easton v. Covey, 74 Md. 262, 22 Atl. 266; Hennessy v. St. Paul (C. C.) 37 Fed. 505; City Council of Charleston V. Blake, 12 Rich. Law (S. C.) 66; Same v. Palmer, 1 McCord (S. C.) 342. 6 7 Her V. Ross, 04 Neb. 710, 90 N. W. 869, 57 L. R. A. 895. 97 Am. St. Rep. 67G; Inhabitants of Winthrop v. Chocolate Co., 18U ilass. 464, 62 N. E. 969; 1 Dill. Mun. Corp. § 143. 360 POLICE POWERS AND REGULATIONS. (Ch. 14 Fire Apparatus. Express authority is usually conferred by charter for the organization of a fire departn:ent and the purchase of the necessary fire engines, hose carts, hook and ladder wagons, and other appropriate apparatus for extinguishing fires and maintaining the department. But it has been held that such power is inherent, or at least may be implied, and that the corporation may lawfully appropriate money for these pur- poses without express authority.®* Stopping Conflagration. The supreme exercise of police power by a municipality for public safety is displayed in razing, in case of emergency, valuable private property to prevent the spread of confla- gration.'® This may be done without incurring any liability whatever to the owner, unless compensation has been provided by statute ; the rule at common law being that the state might destroy, though it could not take private property without com- pensation.''' Speed Regulations. Anotlier source of danger to public safety in a city is rapid locomotion in or across the streets thereof. Municipalities have authority to regulate the movement not only of railroad trains, street cars, omnibuses, hacks, automobiles,''^ but also •8 Corporation of Bluff ton v. Studabaker, 106 Ind. 129, 6 N. E. 1; Green v. Cape May, 41 N. J. Law, 45; Allen v. Taunton, 19 Pick. (Mass.) 4S5. 89 Smith V. Rochester, 76 N. Y. 506; Dunbar v. Augusta, 90 Ga. 390, 17 S. E. 907. 70 Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; White V. Charleston, 2 Hill (S. C.) 571; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980. Ti Taylor v. Railroad Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457; Haas v. Railway Co., 41 Wis. 44; City of Lake View v. Tate, 130 111. 247, 22 N. E. 791, 6 L. R. A. 268; Whitson v. Frauklin, 34 Ind. 392; City of Buffalo v. Railroad Co., 152 N. Y. 276, 46 N. E. 496. But an ordinance prohibiting driving on the streets at a rate § 122) SAFETY. 361 individuals moving on horseback, bicycles, and other ve- hicles/^ and likewise to regulate the movement of water craft in the waters over which they have jurisdiction.''^ Municipal ordinances have been sustained which restrict the running of trains within corporate limits to four miles an hour/* re- quire flagmen to be kept at street crossings/* and those re- quiring a conductor on each street car/® and many similar ordinances regulating speed and movements within the mu- nicipal jurisdiction whereby collisions may be avoided and human life and property saved from needless injury or reck- less destruction/* Dangerous Forces. Municipal corporations also exercise the police power in the supervision and regulation of occupations which are es- sentially dangerous in their nature or conduct, and sometimes entirely exclude them from the municipal limits. ''* To this class belong those occupations which produce, transmit, or re- greater than six miles an tiour is, as to members of ttie fire depart- ment, invalid. State v. Slieppard, 64 Minn. 287, 67 N. W. 62, 36 L. R. A. 305; Kahn v. Eisler, 22 Misc. Rep. 350, 49 N. Y. Supp. 135. Ts Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 30S; Commonwealth v. Stodder, 2 Cusb. QIass.) 562, 48 Am. Dec. 679; Nealis v. Hayward, 48 Ind. 19; Washington v. Nashville, 1 Swan (Tenn.) 177. 7 3 Backus V. Detroit, 49 Mich. 110, 13 N. W. 380, 43 Am. Rep. 447.' T4 Knobloch v. Railroad Co., 31 Minn. 402. 18 N. W. 106. 75 Toledo, W. & W. Ry. Co. v. Jacksonville, 67 111. 37, 16 Am. Rep Oil. And to erect safety gates at certain street crossings. Chesa- peake & O. Ry. Co. V. Maysville, 69 S. W. 72S, 24 Ky. Law Rep. 61?. T6 SOUTH COVINGTON & C. RY. CO. v. BERRY, 18 S. W. 1026, 13 Ky. Law Rep. 943. 7T Commonwoalth v. Stodder. 2 Cush. (Mass.) 562, 48 Am. Dec. 679; BuCfalo &, N. F. R. Co. v. Buffalo, 5 Hill (N. Y.) 209; Richmond. F. & P. R. Co. V. Richmond, 96 U. S. 521, 24 L. Ed. 734; Hayes v. Railroad Co., Ill U. S. 22S. 4 Sup. Ct. 369, 28 L. Ed. 410. "* Cheatham v. Shearon, 1 Swan (Tenn.) 213, .55 Am. Dec. 734 -Mayor of New York v. Ordrenan, 12 Johns. (N. Y.) 122. iJt)2 POLICE POWERg AND REGULATIONS. (Cll. 14 quire great power, or expose to special danger/* such as steam engines, electric plants, elevators, and the like, over which the municipality usually exercises supervision by in- spection or license.*" COMFORT. 123. The public comfort and convenience is also one of the objects of municipal incorporation, and is protected by the exercise of the police poxper. This exercise of the police power finds expression in the Blackstone definition that "individuals are bound to conform their general behavior to the rules of propriety, good neigh- borhood, and good manners, and to be decent and inoffen- sive." Whatever, therefore, causes public discomfort or in- convenience or immorality may be prevented in the exercise of the police power.^^ This includes not only conduct and 7» Davenport v. Richmond City, 81 Va. 636, 59 Am. Rep. 694; •Stanley v. Davenport, 54 Iowa, 403. 2 N. W. 1064, 37 Am. Rep. 216. But see Richmond 'Safety Gate Co. v. Ashbridge (C. C) 116 Fed. 220, 8 City of St. Louis v. Meyrose Lamp Mfg. Co., 139 Mo. 560, 41 S. W. 244, 61 Am. St. Rep. 474. But where the business is subjected to inspection, the cost of the same must not be unreasonable. City of Saginaw v. Light Co., 113 Mich. 660, 72 N. W. 6; City of Joplin v. Leckie, 78 Mo. App. S. See City of Cape May v. Transportation Co., 64 N. J. Law, 80, 44 Atl. 94S. 81 Whitmier & Filbrick Co. v. Buffalo (C. C.) 118 Fed. 773 (bill board). Imposing a penalty upon a manufacturer for not so con- structing the furnaces as to consume the smoke is a proper exercise of the police power. Department of Health of City of New York V. Brewing Co. (Mun. Ct.) 78 N. Y. Supp. 11. Under an investiture in municipal corporations of power to prevent annoyance within their limits, to abate nuisance, and to enact ordinances to carry into effect such power, the enactment of an ordinance prohibiting the keeping of a jackass within its limits, in hearing distance of its populace, and declaring such keeping to be a nuisance, was held to be a valid exercise of the police power. Ex parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St. Rep. 63. § 123) COMFORT. 363 acts recognized by the common law as essentially evil — mala in se or mala prohibita — but even things not unlawful, which cause the public hurt, damage, or harm, and thus become nuisances.^^ It has accordingly been held that a city may pro- hibit public profanity,®^ street preaching,'* public drunken- ness,^° carrying concealed weapons, ^^ rock blasting,^^ vagran- cy,*® cruelty to animxals,*' Sabbath breaking,®** destruction of public trees, ^^ steam whistle blowing,''- and the running at large of animals.®' Animals found running at large in a 82 HART V. MAYOR, 9 Wend. (N. Y.) 571, 24 Am. Dec. KJJ; Collins V. Hatch, 18 Ohio, 523, 51 Am. Dec. 465; Hellen v. Noe, 25 N. C. 493; Baker v. Boston, 12 Pick. (Mass.) 184, 22 Am. Dec. 421; Kennedy v. Phelps, 10 La. Ann. 227; City of Dubuque v. Maloney, y Iowa, 450, 74 Am. Dec. 358; Parker v. Macon, 39 Ga. 725, 99 Am. Dec. 4SG; Ferguson v. Selma, 43 Ala. 398. 8 3 State V. Cainan, 94 N. C. 880; State v. Ernhardt, 107 N. C. 789, 12 S. E. 426; Ex parte Delaney, 43 Cal. 478. 84 City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; City of Bloomlngton v. Richardson, 38 111. App. 60; Commonwealth v. Davis, 140 Mass. 485, 4 N. E. 577. 85 Town of Bloomfield v. Trimble, 54 Iowa, 399, 6 N. W. .586, 37 Am. Rep. 212; Homer v. Blackburn, 27 La. Ann. 544. Cf. State v. Bruckhauser, 26 Minn. 301, 3 N. W. 695. 8 6 In re Cheney, 90 Cal. 617, 27 Pac. 4.36. But in Judy v. Lasbley, 50 W. Va. 628, 41 S. E. 197, 57 L. R. A. 413, it was held that the carrying of concealed weapons did not amount to a breach of the peace, and could not be made an offense, and punishable by municipal ordinance, unless expressly authorized by municipal charter. 87 Commonwealth v. Parks, 155 Mass. 531, 30 N. E. 174. 88 City of St. Louis v. Bentz, 11 Mo. 61; Byers v. Commonwealth, 42 Pa. 89. 89 City of St. Louis v. Schoenbuscb, 95 Mo. 618. 8 S. W. 791. 80 City of Shreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 553: Van Buren v. Wells, 53 Ark. 368, 14 S. W. 38. 22 Am. St. Rep. 214; Mayor of Nashville v. Linck, 12 Lea (Tenn.) 499 ; City of Ciutinnati V. Rice, 15 Ohio, 225; State v. Welch, 36 Conn. 215. 91 State v. Merrill, 37 Me. 329. 9 2 1 Dill. Mun. Corp. § 374, note p. 448. 93 Amyx V. Taber, 23 Cal. 370; Roberts v. Ogle. 30 111. 459, 83 Am. Dec. 201; COCHRANE v. FROSTBURG, 81 Md. 54, 31 Atl. 703, 364 POLICE POWERS AND REGULATIONS. (Ch. 14 municipality may be impounded, and, after due time for re- demption and notice to tlie owner, may be sold,** if not re- deemed, unless a different penalty is provided, in which case only the penalty prescribed can be enforced.®^ And so, under authority to impose a fine only, the city cannot pass an ordi- nance authorizing- that vagrant hogs be killed and appro- priated by the officer.®® A municipal corporation may, in the exercise of police power, require a license for the keeping of dogs ; the same being held not unconstitutional for inequality of taxation or undue restriction upon the right to own prop- erty." 27 L. R. A. 728, 48 Am. St. Rep. 479; Hellen v. Noe, 25 N. 0. 493; City of Chattanooga v. Norman, 92 Tenn. 73, 20 S. W. 417; Atkin- son V. Mott, 1U2 Ind. 431, 26 N, E. 217; Irwin v. Mattox, 138 Pa. 466, 21 Atl. 209; City of Hagerstown v. Witmer, 86 Md. 293, 37 Atl. 965, 39 L. R. A. 649. 94 Bropby v. Hyatt, 10 Colo. 223, 15 Pac, 299; Gosselink v. Camp- bell, 4 Iowa, 296; Gilchrist v, Schmidling, 12 Kan. 263; Hellen v. Noe, supra. An ordinance providing that an animal found running at large within the city limits may be impounded and sold, and this though the owner is a nonresident of the city, is a valid exercise of the police power. Jeans v. Morrison, 99 Mo. App. 208, 73 S. W. 235. And it makes no difference whether the animals escape by reason of the owner's negligence or not. Dorton v. Burks, 99 Mo. App, 165, 73 S. W. 239, See, also, Thompson v. Millen. 24 Ky. Law Rep. 2479. 74 S, W. 288; McVey v. Barker, 92 Mo. App. 498; Folmar v. Curtis, 86 Ala. 354, 5 South. 678; McKee v. McKee. 8 B. Mon. (Ky.) 433; Roberts v. ' gle, supra; Horney v, Sloan, 1 Ind. 266: Gilmore v. Holt, 4 Pick. (Mass.) 258; Whitfield v. Longest, 28 N. C. 268. 9 5 City of Cartersville v. Lanham, 67 Ga. 753; Brophy v. Hyatt, supra. 86 Donovan v. Vicksburg, 29 Miss. 247. 64 Am. Dec. 143; Kennedy V. Sowdeu, 1 McMull. (S. C.) 328, citing McRea v. Olain, an unre ported case. And the owner of such hogs may be fined, whether he live inside or out of the city limits. Jones v. Duncan, 127 N. C. 118, 37 S. E. 135. 9 7 Washington v. Lynch, 5 Cranch, C. C. 498, Fed. Cas. No. 17,231 ; Carthage v. Rhodes, 101 Mo. 175, 14 S. W. 181, 9 L. R. A. 352; City of Faribault v. Wilson, 34 Minn. 254, 25 N, W. 449; Blair v. § 124) OCCUPATIONS AND AMUSEMENTS. 865 OCCUPATIONS AND AMUSEMENTS. 124. The city possesses no power to prohibit a useful business or a barmless amusement; but all manner of occupa- tions and amusements are subject to reasonable regu- lation by the state or the municipality exercising the delegated police poxver. Occupations or amusements which are immoral, illegal, or harmful to the city, such as gambling, liquor selling, and the like, may be entirely prohibited ; ®* but a municipality has no authority to interfere with private rights of lawful occupa- tion and amusement beyond necessary regulation.'^ A city may prohibit the keeping of a house of ill fame,^"" or the leasing of property for that purpose ; ^•'^ and so, also, for gam- bling or liquor selling, if authorized by charter; ^'^^ or, if these practices are not forbidden, the city may adopt and en- force stringent regulations for them. It may prohibit the Forehand, 100 Mass. 136, 97 Dec. 82, 1 Am. Rep. 94; State v. Topeka. 36 Kan. 76, 12 Pac. 310, 59 Am. Rep. 529; Griggs v. Macon, 103 Ga. 602, 30 S. E. 561, 68 Am. St. Rep. 134; Hill v. Abbeville, 59 S. C 396, 38 S. E. 11. 98 Odell V. Atlanta, 97 Ga. 670, 25 S. E. 173. 9 8 Muhlenbrinck v. Long Branch, 42 N. J. Law, 364, 36 Am. Rep. 518; Dunham v. Rochester, 5 Cow. (N. Y.) 462: City of Buffalo v. Baking Co., 24 Misc. Rep. 745, 53 N. Y. Supp. 968; Ex parte Mirande, 73 Cal. 365, 14 Pac. 888; State v. Owen, 50 La. Ann. 1181, 24 South. 187. 100 People V. Miller, 38 Hun (N. Y.) 82; State v. Williams, 11 S. C. 288; Childress v. Nashville, 3 Sneed (Tenn.) 347; City of Shreveport v. Roos, 35 La. Ann. 1010. Cf. State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471. 101 L'Hote v. New Orleans, 51 La. Ann. 93, 24 South. 608, 44 L. R. A. 90 : McAlister v. Clark, 33 Conn. 91 ; Childress v. Nashville, 3 Sneed (Tonn.) 347. 356. Contra, State v. Webber, 107 N. C. 962, 12 S. E. 598, 22 Am. St. Rop. 920 102 state V. Grimes, 49 Minn. 443, 52 N. W. 42; Crowley v. Christensen, 137 U. S. 80, 11 Sup. Ct. 13, 34 L. Ed. 620. 366 POLICE POWERS AND REGULATIONS. (Cll. 14 sale of liquors and wines at places of musical or dramatic en- tertainment where females act as waiters,*"' and may fix hours for closing and opening saloons,^''* and forbid admis- sion of minors or females; ^°^ and in general may enact such ordinances as will tend to prevent such places from degenerat- ing into nuisances or breeding disorder and crime.^"' License. Even where a privilege license may not be required as a means of municipal revenue, a city may, under the police power, require license for any profession, trade, or business the supervision of which tends to promote municipal health, safety, order, or welfare ; *°'' and this either because the trade or profession requires a certain degree of skill or training,^*** or because it furnishes opportunities for fraud,^°" or because proper municipal police demands record of the persons en- gaged in various occupations.^^" But authority to require license has been declared not to be inherent in the municipal- ity.^ ^^ It must be expressly given or readily implied from 103 Ex parte Hayes. 98 Cal. 555, 33 Pac. 337, 20 L. R. A. 701. 104 Smith r. Knoxville, 3 Head (Tenn.) 245; Maxwell v. Jonesboro, n Heisk. (Tenn.) 257. 105 City of Plattsburg v. Trimble, 46 Mo. App. 459; Bergman v. Cleveland, 39 Ohio St. 651. 106 City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361. 107 Nolin V, Franklin, 4 Yerg. (Tenn.) 163; State v. Cassidy, 22 Minn. 312, 21 Am. Kep. 765; St. Louis v. Fitz, 53 Mo. 582; Ex parte Mirande, 73 Cal. 365, 14 Pac. 888; Hill v. Abbeville, 59 S. C. 396, 38 S. E. 11. 108 Simmons v. State. 12 Mo. 268, 49 Am. Dec. 131; Nashville, C. & St. L. R. Co. V. Atlanta. 118 Ala. 362, 24 South. 450; City of Savannah v. Charlton, 36 Ga. 460; State v. Hibbard, 3 Ohio, 63. 109 Ward v. Farwell, 97 111. 593; I.othrop v. Stedman, 42 Conn. 583, Fed. Cas. No. 8.519; Ash v. People, 11 Mich. 347. S3 Am. Dec 740; City of Boston v. Schaffer, 9 Pick. (Mass.) 415; Temple v. Sum- ner, 51 Miss. 13, 24 Am. Rep. 615; Ex parte Ah Foy, 57 Cal. 92. no Tied. Lim. § 101; Inhabitants of Watortown v. Mayo, 109 .Mass. 335, 12 Am. Rep. 694; Blydenburgh v. Miles, 39 Conn. 484; Borough of Warren v. Geer, 117 Pa. 207, 11 Atl. 415. Ill State v. McMahon. 69 Minn. 265, 72 N. W. 79, 38 L. R. A. It § i2i) OCCUPATIOKS AKD AMUSEMENTS. SSI the charter, or it will not exist in case of ordinary occupa- tion.^ ^^ And the cost of such license must not exceed the reasonable expense of municipal supervision.^^' Accordingly, a license charge of $40 per year on hacks has been held un- lawful. ^^* Ordinances requiring licenses from peddlers, ^^"^ plumbers,^ ^* auctioneers/^^ bakers,^ ^* draymen,"^ hack- men,^^° green grocers,*-^ pawnbrokers,^ ^^ milk dealers,^'^^ 675; Ex parte Garza, 28 Tex. App. 381, 13 S, W. 779, 19 Am. St. Rep. 845. 112 State V. Itzcovitch, 49 La. Ann. 366, 21 South. 544, 37 L. R. A. 673, 62 Am. St. Rep. 648. 113 Ash V. People, 11 Mich. 347, 83 Am. Dec. 740; City of In- dianapolis V. Bieler, 138 Ind. 30, 36 N. E. 857; State v. Cassldj', 22 Minn. 321. 21 Am. Rep. 765. 11* City of Jackson v. Xewman, 59 Miss. 385, 42 Am. Rep. 367. 115 Town of State Center v. Barenstein, 66 Iowa, 249, 23 N. W. 6.52; City of South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 20 L. R. A. .531. 116 Wilkie V. Chicago, 188 III. 444. 58 N. E. 1004, 80 Am. St. Rep. 182. 117 Town of Decorah v. Duiistan. 38 Iowa, 96; Fretwell v. Troy. 18 Kan. 271; Wiggins v. Chicago, 68 111. 372. 118 PEOPLE V. WAGNER, 86 Mich. 594, 49 N. W. 0U9, 13 L. R. A. 286, 24 Am. St. Rep. 141. 119 CITY OF BROOKLYN v. BRESLIN, 57 N. Y. 591; City of Cin- cinnati V. Bryson, 15 Ohio, 625, 45 Am. Dec. 593. 120 City of St. Louis v. Weitzel, 130 .Mo. 600, 31 S. W. 1045; Com- monwealth V. Page, 155 Mass. 227, 29 N. E. 512; Haynes v. Cape May, 52 N. J. Law, 180. 19 Atl. 176. Hackmen may be required, under police power, to occupy certain designated places at depots. City of Ottawa v. Bodley. 67 Kan. 178. 72 Pac. 545. See Comb.s v. Lakewood Tp., 68 N. J. Law, .582, 53 Atl. 697; City of New York v. Reesing. 77 App. Div. 417, 79 N. Y. Sui)p. 331; Mason v. Cumberland, 92 Md. 451, 48 Atl. 136. 121 Fronimer v. Richmond, 31 Grat. 646. 31 Am. Rep. 746. 122 Launder v. Chicago, 111 111. 291. .53 Am. Rep. 625; SbuuiMn v. Ft. Wayne, 127 Ind. 109, 26 N. E. .560, 11 L. R. A. 378; City of St. Paul V. Lytle, 69 Minn. 1, 71 N. W. 703. i2.-i People V. Mulholland, 82 N. Y. 324, 37 Am. Rep. .".CS; City of Chicago V. Bartee, 100 111. 57; City of Norfolk v. I'lyiui, 101 Va. 473, 44 S. E 717, 62 L. R. A. 771. But see, contra. State v. Tyrrell, 73 Conn. 407, 47 Atl. 686, where 368 POLICE POWERS AND REGULATIONS. (Ch. 14 billiard saloons/** livery stables,^^^ showmen, ^'^^ hucksters/*^ lawyers and doctors/ ^^ bankers/ ^^ junk shops/^° telegraph companies/^^ natural gas companies/'* pharmacists/'^ have been held valid under the police power. But the courts have repeatedly held such ordinances to be invalid, as unlawful in- terference with private rights under the pretext of police reg- ulation, when it is apparent that the end sought is not the promotion of the public health, morals, or welfare.^'* The limit of the power is to prevent injury and regulate what is not harmful. A laundry may not be declared unlawful/""^ an ordinance requiring milk dealers to obtain a municipal license was held invalid, as being in conflict with the General Statutes of the state, and beyond the power of the city council to enact. 124 In re Snell, 58 Vt. 207, 1 Atl. 5GG, 126 Municipality No. 2 v. Dubois, 10 I^. Ann. 56. 126 City of Boston v. Schaffer, 9 Pick. (Mass.) 415. 127 Fromiuer v. Richmond, 31 Grat. (Va.) 046, 31 Am. Rep. 746; Dunham v. Rochester, 5 Cow. (N. Y.) 462; Temple v. Sumner, 51 Miss. 13, 24 Am. Rep. 615; City of Huntington v. Cheesbro, 57 Ind. 74; State v. Smith, 67 Conn. 541, 35 Atl. 506, 52 Am. St. Rep. 301. 128 Young V. Thomas, 17 Fla. 169, 35 Am. Rep. 93; City of Girard V. Bissell. 45 Kan. 66, 25 Pac. 232; City of Savannah v. Charlton, 36 Ga. 460; State v. Proudflt, 3 Ohio, 63; Ahlrichs v. Cullman, 130 Ala. 674, 31 South. 1045; Elliott v. Louisville, 101 Ky. 262. 40 S. W. 600; State v. Fernandez, 49 La. Ann. 704, 21 South. 591. Cf. Garden City v. Abbott, 34 Kan. 283, 8 Pac. 473. 129 Oil City V. Trust Co., 11 Pa. Co. Ct. R. 350. 130 City Council of Charleston v. Goldsmith, 12 Rich. (S. C.) Law, 470. 131 City of Allentown v. Telegraph Co., 148 Pa. 117, 23 N. E. 1070, 33 Am. St. Rep. 820; Hodges v. Telegraph Co., 72 Miss. 910, 18 South. 84, 29 L. R. A. 770; Borough of New Hope v. Telegraph Co., 16 Pa. Super. Ct. 306; Taylor v. Cable Co., 16 Pa. Super. Ct. 344. 132 Rushville Gas Co. v. Rushville, 121 Ind. 212, 23 N. B. 72, 6 L. R. A. 315, 16 Am. St. Rep. 388. 133 People V. Rontey, 51 Hun, 640, 4 N. Y. Supp. 235. 134 Robinson v. Mayor, 1 Humph. (Tenn.) 156, 34 Am, Dec. 625; Bethune v. Hughes, 28 Ga. 560, 73 Am. Dec. 789; Caldwell v. Alton, 33 HI. 416, 75 Am. Dec. 2S2; White v. Kent, 11 Ohio St. 550. 135 YICK WO V. HOPKINS, 118 U. S. 330, 6 Sup. Ct. 1064, 30 L. I w § Itii) OCCUPATIONS AND AMUSEMENTS. 369 but the business may be lawfully confined within certain local- ities, and restricted to certain hours.^^* Liquor Selling. Municipal restraint upon the subject of liquor selling is now comparatively rare because of the control of this trafitic by state and federal laws. The municipal corporation possesses no inherent power over this traffic, but only the express and implied powers conferred by the charter.^^'' Wherever the power of regulation is conferred, the municipality may re- quire a license,^ ^* may forbid the employment of women in the traffic, ^^® may confine sales within reasonable hours ^*° and within prescribed territorial limits, ^*^ and may regulate the traffic by other wholesome restrictions.^*^ Ed, 220; State v. Taft, 118 N. C. 1190, 23 S. E. 970, 32 L. R. A. 122, 54 Am. St. Rep. 768. 136 BARRIER V. CONNOLLY, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145. The city may also pass ordinances requiring the inspection of laundries, and may provide for a reasonable fee to be paid to cover the cost of such inspection. City of New Orleans v. Hop Lee, 104 La. GOl, 29 South. 214. 137 Loeb V. Attica, 82 Ind. 175, 42 Am. Rep. 494; In re Burnett, 30 Ala. 4G1; Ex parte Campbell, 74 Cal. 20, 15 Pac. 318, 5 Am. St. Rep. 418. 138 Bancroft v. Dumas, 21 Vt. 45G; Thomasson v. State, 15 Ind. 449; Goddard v. Jacksonville, 15 111. 5SS, 00 Am. Dec. 773; City of I'ortland v. Schmidt, 13 Or. 17, 6 Pac. 221; Schweitzer v. Liberty, 82 Mo. 309; Charleston City Council v. Ileisembrittel City Council, 2 McMul. (S. C.) Law, 233. 139 Bergman v. Cleveland, 39 Ohio St. 051. 140 Hedderich v. State, 101 Ind. 504, 1 N. E. 47, 51 Am. Rep. 708; State V. Welch, 30 Conn. 215; Morris v, Rome, 10 Ga. 532; Ex parte Wolf, 14 Neb. 24, 14 N. W. 660. 141 State V. Clark, 28 N. H. 176, 61 Am. Dec. 611; People v. Crogier, 138 111. 401, 28 N. E. 812; In re Wilson, 32 Minn. 145, 19 N. W. 723. 142 Giozza V. Tiernan, 148 U. S. 657. 13 Sup. Ct. 721, 37 L. Ed. 599; Decie v. Brown. 107 Mass. 290, 45 N. E. 765; Provo City v. Shurtliff, Ing.Corp. — 24 370 POLICE POWERS AND REGULATIONS. (Ch. 14 MARKETS. 125. The establishment and regulation of municipal markets is a proper exercise of the police povrer for the con- venience, health, and general ^velfare of the munici- pality. A municipal market is a designated place in a toxra or city, xrith convenient fixtures for the sale of provisions and articles of daily consumption, trith proper regulations and officers, x^here all persons may lav^rf ully be for the purpose of buying or selling. In England the market has been time out of mind an es- sential part of the municipality, generally regarded as a pre- scriptive right or power, with certain customary regulations and privileges.^*^ In America the establishment and regula- tion of markets is generally granted by charter ; and after much contention it has been generally decided that the city may prohibit the sale of fresh meat, vegetables, and other provisions elsewhere than in the public market,^** upon the ground, as stated in a leading Louisiana case, that "the privi- lege of keeping a private market is subordinate to the right existing in the sovereign to exercise the police power to reg- ulate the peace and good order of the city, and to provide for and maintain its cleanliness and salubrity." ^*^ In the 4 Utah, 15, 5 Pac. 302; Metcalf v. State, 76 Ga. 208; Ex parte Hayes, 98 Cal. 555, 33 Pac. 337, 20 L. R. A. 701; State v. Hellman, 56 Conn. 190, 14 Atl. 806. 143 2 Bl. Comm. 37; Grant, Corp. 160; 1 Dill. Mun. Corp. § 380. 144 First Municipality v. Cutting, 4 La. Ann. 335; Newson v. Galveston, 76 Tex. 559, 13 S. W. 368, 7 L. R. A. 797; City of Jack- sonville V. Led with, 26 Fla, 163, 7 South. 885, 9 L, R. A. 69, 23 Am. St. Rep. 558; Commonwealth* v. Rice, 9 Mete. (Mass.) 253; State v. Smith (Iowa) 96 N. W. 899; Town of Crowley v. Rucker, 107 La. 213, 31 South. 629; City of Buffalo v. Hill. 79 App. Div. 402, 79 N. Y. Supp. 449; CITY OF BROOKLYN v. BRESLIN, 57 N. Y. 591; Kinsley v. Chicago, 124 111. 359, 16 N. E. 260; Wartraan v. Philadel- phia, 33 Pa. 202. 1*5 City of New Orleans v. Stafford, 27 La. Ann. 417, 21 Am. Rep. 563. § V2(5) VIOLATION AND ENFORCEMENT. 371 exercise of this power the city may require the payment of a license fee for market privileges,^** may fix market hours,^*^ may prohibit street vending/** and provide for inspection and weighing of market articles.^*® Market ordinances like those above mentioned have been generally sustained by the courts upon the express view that they are not in restraint of trade, but for the wholesome regulation of it, and in the lawful ex- ercise of the police power/ ^^ VIOLATION AND ENFORCEMENT. 126. Violations of police regulations are usually punished by a court proceeding in personam for tiie recovery or en- forcement of the affixed penalty, but in many cases the police poiirer is enforced in rem in a summary manner. As we have heretofore seen,^''^ the proceeding for violation of municipal ordinances is variously viewed in the courts of the several states; but all concur that no judgment can be pronounced or penalty inflicted in personam except through some regular judicial proceeding. ^^^ This rule applies to the 146 CITY OF CINCINNATI v. BUCKINGHAM, 10 Ohio, 257; Blanobard v. Ivers, 40 Fla. 117, 24 South. 66. 147 City of Bowling Green v. Carson. 10 Bush (Ky.) 64. 148 Launder v. Chicago, 111 111. 291, 53 Am. Rep. 625. i*-* Taylor v. Pine Bluff, 34 Ark. 603; Paige v. Fazackerly, 36 Barb. (N. Y.) 392; Pierce v. Kimball, 9 (Jreenl. (Me.) 54, 23 Am. Dec. 539; Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370; Woods V. Armstrong, 54 Ala. 150. 25 Am. Rep. 671; Hoffman v. Jersey City, 34 N. J. Law, 172; Wartman v. Philadelphia. 33 Pa. 202; State v. Smith (Iowa) 96 N. W. 899, Also a municipality may require that coal be weighed on the lity scales. Wills v. Ft. Smith, 70 Ark. 221, 66 S. W. 922. 150 Xatal V. Louisiana, 139 U. S. 621, 11 Sup. Ct. 636, 35 L. Ed. 288; Taylor v. Pine Bluff, supra; Collins v. Louisville, 2 B. Mon. (Ky.) 1S4; Badkius v, Robinson, 53 Ga. 613; Yates v. Milwaukee, 12 Wis. 673. 151 .\nte. § 76. 162 Cooley, Const. Lim. (6th Ed.) 431 et seq. ; Meaher v. Chattanooga, 372 POLICE POWERS AND REGULATIONS. (Ch. 14 enforcement of police regulations as well as to other ordi- nances. Trial and conviction without a jury is called by some judges a summary proceeding : ^^^ but herein the word "summary" is used to describe an extrajudicial enforcement of the police power in a summary manner without legal pro- cess. For example, a city council has power to confer upon the board of health authority to demolish a house infected with smallpox as a nuisance dangerous to the public health.^ ^* So, also, it has been held that a city may order a wooden house to be torn down which is built within the fire limits in defiance of the ordinance forbidding it;^**^ and, as we have seen, the municipal corporation, without either statute or ordi- nance, may cause a private building to be demolished to stop conflagration. ^°® So, too, a ferocious dog, or any other animal damage feasant in a municipality, may be killed, if neces- sary; ^^'^ also a vagrant dog, unmuzzled, and addicted to biting, though doing no harm at the time, may be summarily killed as a measure of precaution. ^^^ In some states, too, the 1 Head (Tenn.) 74; Lanfear v. Mayor, 4 La. 97, 23 Am. Dec. 477; State V. Lockwood, 43 Wis. 403; Town of Brookville v. Gagle, 73 lud. 117. See, also, Blancbard v. Bristol, 100 Va. 469, 41 S. E. 948. 153 Strong, J., in Byers v. Commonwealth, 42 Pa. 94. 154 King V. Davenport, 98 111. .305, 38 Am. Rep. 89; Baiimgartner V. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Waters v. Townsend, 05 Ark. 613. 47 S. W. 1054; Theilan v. Porter, 14 Lea (Tenn.) 622, 52 Am. Rep. 173. 156 pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608; City of Charles- ton V. Reed. 27 W. Ya. 681, 55 Am. Rep. 336; McKibbin v. Ft. Smith, 35 Ark. 352; State v. Knoxville, 12 Lea (Tenn.) 146, 47 Am. Kep. 331: Eichenlaub v. St. Joseph, 113 Mo. 395, 21 S. W. 8, IS L. R. A. 590. 156 Ante, § 122. 157 Brent v. Kimball. 60 111. 211, 14 Am. Rep. 35, i58W'oolf V. Chalker, 31 Conn. 121. 81 Am. Dec. 175; Simmonds V. Holmes, 61 Conn. 1, 23 Atl. 702, 15 L. R. A. 2.53; Dodson v. Mock, 20 N. C. 282, 32 Am. Dec. 677; Ranson v. Kitner, 31 IlL App. 241; Brown v. Carpenter, 26 Vt. 638, 62 Am. Dec, 603; Walker v. Towle, 156 Ind. 639, 59 N. E. 20, 53 L. R, A, 749. i :i< S 126) VIOLATION AND ENFORCEMENT. 373 police are authorized to kill all unlicensed dogs wheresoever found. ^"^^ Similar to this is the summary arrest and confine- ment by the police in the lockup of persons of the drunk and disorderly class, and, as we have seen,^^^ the use of force, even to mayhem or death, if necessary, to disperse a mob or quell a riot. iB9Mowery v. Salisbury, S2 N. C. 175; Blair v. Forehand, 100 Mass. 136, 1 Am. Rep. 94; State v. Topeka, 36 Kan. 76. 12 Pac. 310. 59 Am. Rep. 529; Julienne v. Jackson, 67 Miss. 34, 10 South. 43, 30 Am. St. Rep. 526. ICO Ante, § 117; DARGAN v. MOBILE, 31 Ala. 469, 70 Am. Dec. 505; Stewart v. New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218. But a municipal corporation cannot maintain a suit for a viola- tion of one of the criminal statutes of the state. McMinnville y. Stroud, 109 Tenn. 369, 72 S. W. 949. 374 STKfi£]TS« SBWERS, PARKS, AND BUILDIMGS. (Ch. 15 CHAPTEE, XV. STREETS. SEWERS, PARKS, AND PUBLIC BUILDINGS. 127. Streets. 128. Legislative Control. 129. Delegation. 130. Dedication and Acceptance. 131. Use of Streets. 132. Abutting Owners. 133. Sewers. 134. Parks. 135. Public Buildings. STREETS. 127. "Street" is a generic term nsnally employed to describe any public bigbway, ivbetber improved or unimproved, la^i^fnlly establisbed and opened in a municipality to tbe public use for travel and traffic. In its legal acceptation, this word embraces not only streets, but also avenues and alleys, thus including the narrow and squalid and the broad and salubrious as well as the ordinary municipal highways.^ It is public as distinguished from those private ways in a municipality which have not been dedicated to or accepted for public use, but are owned and enjoyed by private persons.^ A turnpike owned by a private corporation is not, therefore, properly called a street.' The term is used 1 Elliott, Roads & S. c. 2; Cox v. Railroad Co., 48 Ind. 178; Heiple V. Bast Portland, 13 Or. 97, 8 Pac. 907; State v. Wilkinson, 2 Vt. 480, 21 Am. Dec. 560; Village of Marseilles v. Howland, 124 111. 551, 16 N. E. 883. 2 City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243; Henkel V. Detroit, 49 Mich. 249, 13 N. W. 611, 43 Am. Rep. 464; Hamilton V. Railroad Co., 124 111. 241, 15 N. E. 854. 8 Elliott, Roads & S. p. 60; Parker v. New Brunswick, 30 N, J. i f 128) LEGISLATIVE CONTROL. 375 to describe any public road inside municipal boundaries, and does not properly embrace rural or suburban roads.* When- ever duly established and opened, it becomes a street, whether it is worked upon and improved, or left in its natural state. It is dedicated to the public and accepted and held by it for the public use of trade and travel, and may not be perverted to other uses,'* LEGISLATIVE CONTROL. 128. The supreme po\Krer over streets, as over public highways, is inherent in the state, for the public use. The state, as the sovereign agency of the people for the purposes of government, holds all public powers and utilities in trust for the public welfare, including those within as well as those beyond municipal boundaries." Its proper function is to decide what conveniences the public may enjoy for traffic and travel. Within constitutional limitations, it may deter- mine when, where, and how streets, as other public highways, shall be opened, graduated, improved, and regulated ; ' and. Law, 395; Wilson v. Allegbeuy, 79 Pa. 272; Henkel v. Deti'oit, 49 Mich. 249, 13 N. W. 611, 43 Am. Rep. 464. * City of Indianapolis v. Croas, 7 Ind. 9; Cowan's Case, 1 Overt. (Tenn.) 311; State v. Wilkinson, 2 Vt. 480, 21 Am. Dec. 560; Heiple V. East Portland, 13 Or. 97, 8 Pac. 907. 5 Brabon v. Seattle (Wash.) 69 Pac. 365; John Anisfield Co. v. Edward B. Grossman & Co., 98 111. App. 180; Brace v. Railroad Co.. 27 N. T. 271 ; Dexter v. Tree, 117 111. 535, 6 N. E. 506 ; Townsend v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441 ; State V. Berdetta, 73 Ind. 185, 38 Am. Rep. 117. 6 Kreigh v. Chicago, 86 111. 407; Elliott, Roads & S. § 656; Astor V. Mayor, 62 N. Y. 567. 7 Cicero Lumber Co. v, Cicero, 176 111. 9, 51 N. E. 758, 42 L. R. A. 696. 68 Am. St. Rep. 155; Barrows v. Sycamore. 150 111. 588, 37 N. E. 109G, 25 L. R. A. .535, 41 Am. St. Rep. 400; Simon v. North- up, 27 Or. 487, 40 Pac. .560, .30 L. R. A. 171; Daley v. St. Paul, 7 Minn. 390 (Gil. 311); Baird v. Rice. 63 Pa. 489. A city council may prescribe by resolution that portion of a street 376 STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 though a street is used by the pubHc for the purposes of travel and traffic, the state may determine and declare the manner of the use of particular streets, excluding traffic from some, and allowing railroads or street cars upon them, as it deems best ; ^ and it has even been held that the state may allow barriers, such as tollgates, to be erected upon them.® The state may also vacate streets and close them to the public when it sees fit, but not so as to destroy the vested rights of abutting proprietors.^" These powers of control and regula- tion, of course, are legislative in their nature, and are subject which shall be used as a sidewalk. Cox v. Lancaster, 24 Ohio Cir Ct. R. 2(J5. A. public street is a passage open to all the citizens of the state to go and to return, subject to the law of the road. No one man jr body of men has a superior right upon and in the street as against the general public. Chicago Union Traction Co. v. Stanford, 104 111, App. 99. s PEOPLE V. KERR, 27 N. Y. 188 ; Town of Areata ▼. Railroad Co., 92 Cal. 639, 28 Pac. 676; Floyd Co. v. Railroad Co., 77 Ga. 614, 3 S. E. 3. 9 Milarkey v. Foster, 6 Or. 378, 25 Am. Rep. 531; Stormfeltz v. Turnpike Co., 13 Pa. 555. 10 Mahady v. Bushwick R. Co., 91 N. Y, 148, 43 Am. Rep. 661; Callanan v. Oilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St Rep. 831; Elliott, Mun. Corp. § 399. Nonuser of a portion of a street cannot operate as a surrender or abandonment of the same for the purposes of a public street City of Madison v. Mayers, 97 Wis. 399, 73 N. W. 43, 40 L. R. A. 635, 65 Am. St. Rep. 127. But a city council having been given no au- thority to vacate or abandon the public easement of a street, an at- tempted abandonment of such easement by the city is ultra vires. Macintosh v. Nome, 1 Alaska, 492. Mere inconvenience to a property owner from the vacation of a street, which will also result to the general public, does not warrant injunctive relief. Hall v. Lebanon, 31 Ind. App. 265, 67 N. E. 703. An abutting owner is entitled to an easement in the full length of the street and not merely to that part of the street directly in front and between the lines of the lot. Healey v. Kelly, 24 R. L 581, 54 AO. 5S8. § 129) DELEGATION. 377 to judicial control only when legislative acts transcend consti- tutional limitations.^^ DELEGATION. 129. Tlie leg:islative control over streets may be, and nsually is, delegated to tlie municipality, and the power thus conferred upon it to open, graduate, improve, regu- late, and close its o-wn streets. This municipal power to control its own streets depends en- tirely upon the provisions of the charter or the general stat- utes.^^ In some cases the power granted has been held to be unlimited, and the municipality vested with all the inherent power of control over the streets primarily possessed by the state.^^ The grant is usually expressed in general terms, such as to lay out, open, grade, and otherwise improve streets and 11 Where the legislature has vested in a village board discretionary power to vacate streets of the village, the courts will not ordinarily look into the motives influencing such board in doing such discre- tionary act. Village of Bollevue v. Improvement Co., G5 Neb. 52. 90 N. W. 1002; People v. Fields. 58 N. Y. 491; OLIVIER v. WOR- CESTER. 102 Mass. 489, 3 Am. Rep. 485; Leeds v. Richmond, 102 Ind. 372, 1 N. E. 711. 12 Municipal corporations have no inherent power to regulate and control streets therein, for streets and higlnvays belonging to the state are under its control. Raynolds v. Cleveland, 24 Ohio Cir. Ct. R. 215. See Kean v. Elizabeth, 55 N. J. Law. 337, 2G Atl. 939; McGrew V. Stewart, 51 Kan. 185, 32 Pac. 89«>; Citizens' St. R. Co. v. Mem- phis, 53 Fed. 715; Shirk v. Chicago, 195 111. 298, 63 N. E. 193. Municipal corporations have the power to grant franchises to use streets for street railway pui-poses only by delegation from the state. Allen V. Clausen, 114 Wis. 244. 90 N. W. 181. See, also, State v. Yopp, 97 N. C. 477, 2 S. E. 4.58. 2 Am. St. Rep. 305; Denver Circle R. Co. V. Nestor, 10 Colo. 403, 15 Pac. 714. 13 City of Terre Haute v. Turner, 36 Ind. 522; Illinois Cent R. Co. V. Galena, 40 111. 344; Slnton v. Ashbury, 41 Cal. 525; City R. Co. T. Railroad Co., 166 U. S. 557, 17 Sup. Ct. 653, 41 L. Ed. 1114. 378 STREETS, SEWERS, PARKS, AND BUILDINGS. (Cll. 15 keep them in repair; ^* or to have power over its streets ; ^' or to have the care, supervision, and control of its streets.^® These general grants of authority by the state over its own streets, to its duly authorized general agent, to do whatever the state might do in controlling them, are held to confer plen- ary powers upon the municipality.^^ The grant of power may, however, be partial, so that the state shall reserve to itself the sovereign power of exercising the right of eminent domain,^® or the power to determine what streets may be occupied by street cars or common railways,^* and also the designation of particular limits within the city wherein cer- tain trades or business may be carried on.'° It has been held that a state may delegate its control to two public corporations within the same territory ; ^^ but, because of the confusion and conflict likely to result from this double delegation of power, the courts will recognize it only when expressed in unmis- 14 But a grant of power to establish, regulate and control streets, given at a time when street railways were not contemplated, does not give a municipality power to regulate and control the construc- tion of street railways therein. Raynolds v. Cleveland, supra, note 12. People V. Wilson, 62 Hun, 618, 16 N. Y. Supp. 583; Burr v. New Castle, 49 Ind. 322. IB City of Hannibal v. Railroad Co., 49 Mo. 480. 16 Shelton v. Mobile, 30 Ala. 540, 68 Am. Dec. 143; White v. Kent, 11 Ohio St. 550. 17 Northern Transp. Co. v. Chicago, 99 U. S. 03.5, 25 L. Ed. 336; Spokane St. Ry. Co. v. Spokane, 5 Wash. 634, 32 Pac. 456; North Pacific Lumber & Mfg. Co. v. East Portland, 14 Or. 3, 12 Pac. 4. lowest v. Blake. 4 Blackf. (Ind.) 234; Kerrigan v. West Ho- boken, 37 N. J, Law, 77. isProtzman v. Railroad Co., 9 Ind. 467, 68 Am. Dec. 650; CITY OF CLINTON V. RAILROAD CO., 24 Iowa, 455; Gulf, C. & S. F. R. Co. V. Eddins, 60 Tex. 656; City of Knoxville v. Africa, 77 Fed. 501, 23 C. C. A, 252; City of Houston v. Railway Co. (Tex.) 35 S. W. 74. 20 2 Dill. Mun. Corp. § 656. 21 City of Norwich v. Story, 25 Conn. 44; Town of Bennington V. Smith. 29 Vt. 254; Wells v. McLaughlin, 17 Ohio, 99; Baldwin v Grepn, 10 Mo. 410. § 130) DEDICATION AND ACCEPTANCE. 379 takable language.'^ The judicial inclination also generally favors such construction of charters and general law as will vest the municipality with the control of its own streets. DEDICATION AND ACCEPTANCE. 130. Dedication of property for street uses may be made by any legal or equitable o^irner, either in vtrriting or orally, or by conduct, or acquiescence in public user, sucb as xirill suffice to estop claim to tbe contrary. A dedication at common law is the appropriation and set- ting apart of private property to the use of the public.^^ It consists of both act and intention, and may be either express or implied ; ^* express when the owner, either in writing or by parol, declares his intention to donate and surrender the prop- erty to the use of the public; ^^ implied as when this intention is signified by a public platting of property and lots with open spaces apparently for street uses,^*" or when the public for a long time uses the property for a street with the knowledge of the owner, and without his objection.^'' Slight circumstan- ces of assent do not suffice to constitute a dedication, nor long user without the owner's knowledge ; ^* but, when the public 22 City of Indianapolis v. Croas, 7 Ind. 9; State v. Jones, 18 Tex. 874; Cross v. Morristown. 18 N. J. Eq. 305. 28 Black, Law Diet., in verb. 24 Ellsworth V. Lord, 40 Minn. 337, 42 N. W. 389; Village of Princeville v. Autcn, 77 111. 325; McKee v. Percliment, 69 Pa. 342; State V. Woodward. 23 Vt. 92. 2 5 Forney v. Calhoun Co., 84 Ala. 215, 4 South. 153; Cook v. Har- ris, 61 N. Y. 448; Smith v. Navasota, 72 Tex. 422, 10 S. W. 414; Village of Winnetka v. Prouty, 107 111. 218; City of Shreveport v. Drouin, 41 La. Ann. 867, 6 South. G.j6; Cummiugs v. St. Louis, 90 Mo. 259, 2 S. W. 130. 26 Darker v. Beck, 56 Hun, 650. 11 N. Y. Supp. 94; Waugh v. Leech, 28 111. 488; Waltmau v. Rund. 109 Ind. 366, 10 N. E. 117; Arrow-Smith v. New Orleans, 24 La. Ann. 194. 2 7 McKenna v. Boston, 131 Mass. 143; Faust v. Huntington. 91 Ind. 493; Iloole v. Attorney General, 22 Ala. 190. 28 Gerberling v. Wunuenberg, 51 Iowa, 125, 49 N. W. 861; McKey 380 STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 use has been continuous and notorious for a long time, knowl- edge and assent may both be presumed.-^ PVho May Dedicate — Common-law Dedication. Dedication may be made not only by a legal owner,'" but also by the owner of the equitable interest, ^^ or by a married woman, ^^ but not by her husband. ^^ The common-law dedi- cation does not pass the title, but only a public easement,^* the title still remaining in the owner, who, upon abandonment of the easement, may resume possession. A dedication for V. Hyde Park, 37 Fed. 3S9; People v. O'Keefe, 79 Cal. 171, 21 Pac. 539. 29 Smith V. Inge, 80 Ala. 283; Shea v. Ottumwa, 67 Iowa, 39, 24 N. W. 582; City of Cincinnati v. White, 6 Pet (U. S.) 431, 8 L. Ed. 452. 89 Lawe V. Kaukaima, 70 Wis. 306, 35 N. W. 561; Forney v. Cal- houn Co., 84 Ala. 215, 4 South. 153; Town of Edenville v. Railway Co., 77 Iowa, 69, 41 N. W. 568. 81 City of Hannibal v. Draper, 15 Mo. 638; Johnstone v. Scott, 11 Mich. 232; Williams v. Society, 1 Ohio St 478. 32 Todd V. Railroad Co., 19 Ohio St 514; Schenley v. Common- wealth, 36 Pa. 29, 78 Am. Dec. 359. 83 City of Indianapolis v. Patterson, 112 Ind. 344, 14 N. E. 551; City of Marshall v. Anderson, 78 Mo. 85. 34 City of New Orleans v. U. S., 10 Pet (U. S.) 662, 9 L. Ed. 573; McConnell v. Lexington, 12 Wheat (U. S.) 582, 6 L. Ed. 735; City of Winona v. Huff, 11 Minn. 119 (Gil. 75); Donovan v. Allert, 11 N. D. 289, 91 N. AV. 441, 58 L. R. A. 775, 95 Am. St. Rep. 720; Ste- venson V. Chattanooga, 20 Fed. 586; City of Dubuque v. Maloney, 9 Iowa. 450, 74 Am. Dec. 358; Bliss v. Ball, 99 Mass. 597; Brakken V. Railway Co., 29 Minn. 41, 11 N. W. 124; Baker v. St Louis. 75 Mo. 671. Where the city owns the land included within a street, the sub- sequent narrowing of such street does not give title to the abutting owner of the narrow strip of laud. Watson v. New York, 67 App. Div. 573, 73 N. Y. Supp. 1027. Under a common-law dedication, where a street is vacated by a city, the vacated portion reverts to the abutting owners, subject to such rights as other abutting property owners on the street may have therein. Kinnear Mfg. Co. v. Beatty, 65 Ohio St 264, 62 N. B. 341, 87 Am. St. Rep. 600. § 130) DEDICATION AND ACCEPTANCE. 381 street uses does not authorize the appropriation or conversion of the same to any other use, pubHc or private.^' Acceptance. A common-law dedication for street uses is only consum- mated by an acceptance thereof by the municipaUty.^^ Accept- ance can be made only by a duly authorized municipal agency ; but acceptance, like dedication, may be either express or im- plied.^' Implication of acceptance, however, is not to be made from mere public user ; but it may be implied from municipal appropriation for the street, or work done upon it under mu- nicipal authority.^" The matter of acceptance becomes im- portant sometimes from the municipal duty to care for and repair the public streets.^® When, however, the dedication is 8 5 Oilman v. Milwaukee, 55 Wis. 328, 13 N. W. 2G6; City of New Orleans v. Levericb, 13 La. 332; "Warren v. Lyons City, 22 Iowa, 351. A city cannot authorize a private corporation to construct a rail- way track for its use on a public street. Scliwede v. Brewing Co., 29 Wash. 21, 69 Pac. 362; Heineck v. Grosse, 99 111. App. 441. 36 Village of Winnetka v. Prouty, 107 111. 218; City of San Fran- cisco V. Canavan, 42 Cal. 541; Holdane v. Cold Spring, 21 N. Y. 474. 3 7 Baldwin v. Springfield, 141 Mo. 205, 42 S. W. 717; Abbott v. Cottage City, 143 Mass. 521, 10 N. E. 325, 58 Am. Rep. 143; Guthrie V. New Haven, 31 Conn. 308. 88 Steel v. Borough of Huntington, 191 Pa. 627, 43 Atl. 398; Bra- bon V. Seattle, 29 Wash. 6, 69 Pac. 865; In re Hunter, 163 X. Y. 542, 57 N. E. 735, 79 Am. St. Rep. 616; Morrison v. Conshohocken, 17 Montg. Co. Law Rep'r (Pa.) 47; Folsom v. Underbill, 36 Vt 580; Parsons v. University, 44 Ga. 529; Kennedy v. Cumberland, 65 Md. 514, 9 Atl. 234, 57 Am. Rep. 346; Gilder v. Brenham, 67 Tex. 345, 3 S. W. 309; Shartle v. Minneapolis, 17 Minn. 308 (Gil. 2S4). The existence of a highway must be proved either by record, or by immemorial use and repair, or by dedication and acceptance. Stone V. Langworthy, 20 R. I. 602, 40 Atl. 832. See City of Chicago V. Sawyer, 166 111. 290, 46 N. E. 759. 39Requa v. Rochester, 45 N. Y. 129, 6 Am. Rep. 52; Wisby v. Bonte, 19 Ohio St. 238. A municipal corporation is bound to use ordinary care to keep its streets and sidewalks in a reasonably safe condition for public use. Town of Norman v. Teel, 12 Okl. 69, 69 Pac. 791. But the duty 382 STREETS, SEWERS, PARKS, AND BUILDINGS. (Cll. 15 by the state, no act of acceptance is necessary; the same be- ing conclusively presumed, or, rather, authoritatively enjoined upon the municipality.** Statutory Dedication. Statutory dedication, as its name implies, is such as the general statutes of a state prescribe, and is determined, as to its form and character, by the provisions of the statute. In general, it may be said that its essential points differ from the common-law dedication, in (1) that acceptance is not re- quired; *^ (2) that it transfers the title of the land to the pub- lic.*^ A donee or grantee need not usually be named, the dedication being to a public use ; but, wherever local law may require a trustee for such use, he will be appointed in equity, so that the trust may not fail.** USE OF STREETS. 131. Tlie primary use for Tphich streets are dedicated is free and unobstructed passage over theui; but tbis use may be modified or temporarily obstructed under mu- nicipal authority for otber necessary and appropriate municipal purposes, not inconsistent with, nor de- structive of, the primary use of public travel. requiring a city to maintain its streets and sidewalks in a reason- ably safe condition for travel in tbe ordinary mode is limited during tlie time occupied in making repairs and improvements. City of Soutb Omaha v. Burke (Neb.) 91 N. W. 5G2; Magaba v. Hagerstown, 95 Md. 02, -51 Atl. S32, 93 Am. St. Kep. 317. See City of Elgin v. Thompson, 98 111. App. 358; Fockler v. Kan- sas City, 94 Mo. App. 404, OS S. W. 303; Anderson v. Albion, 64 Neb. 2S0, 89 N. W. 794; Bieber v. St. Paul, 87 Minn. 35, 91 N. W. 20; Kay v. Colby (Neb.) 97 N. W. 591. ■10 Keilly v. Racine, 51 Wis. 520, 8 N. W. 417. 4 1 Pierce v. Roberts, 57 Conn. 31, 17 Atl. 275; Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145; People v. Jones. 6 Mich. 176. 4 2 AVood V. Waterworks Co.. 33 Kan. 590, 7 Pac. 233; May wood Co. v. Maywood, 118 111. 01, N. E. 800. 43 Bryant's Lessee v. McCandless, 7 Ohio, J35, pt. 2. 4 § 131) USE OF aTllEETS. 383 The construction of buildings along the street may require a temporary deposit of building material in the street, or the preparation of material or other work of construction therein to the inconvenience of the public ; ** but permission for such use may be granted by the municipality *** — usually, however, upon bond for the protection of the city against damages from the abuse of the privilege. Sucli obstructions must be reason- able, and not so long continued as to prove a nuisance.** The municipal license will not protect the licensee from liability for damages to any abutting owner suffering special injury from the obstruction.*^ And for the protection of the public the city may require that the owner or contractor erecting a building- shall build a covered passway over the sidewalk.** Permission may be granted to use the street for moving buildings *® or ** People V. Mayor, .59 How. Prac. (N. Y.) 277: Commonwealth V. Passmore, 1 Serg. & It. (Pa.) 217; Raymond v. Keseberg, 84 Wis. 302, 54 N. W. 632, 19 L. K. A. 643. *5 Arthur v. Charleston, 51 W. Va. 132, 41 S. E. 171; Wood v. Mears, 12 Ind. 515, 74 Am. Dec. 222; Stuart v. Havens, 17 Neb. 211. 22 N. W. 419; McCarthy v. Chicago, 53 111. 38. 46 McCarthy v. Chicago, supra; Lund v. Railroad Co.. 31 Wash. 286, 71 Pac. 1032, 61 L. R. A. 506, 96 Am. St. Rep. 906; State v. Pratt, 52 Minn. 131, 53 N. W. 1069: Commonwealth v. Passmore. supra; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573. Any permanent structure on a street for private use is a pur- presture and a nuisance. Hibbard, Spencer, Bartlett & Co. v. Chi- cago, 173 111. 91, 50 N. E. 2.56. 40 L. R. A. 621. 47 St. Vincent Female Orphan Asylum v. Troy, 76 N. Y. 108. 32 Am. Rep. 286. Contra. Carrett v. .Tunes, 65 Md. 260, 3 Atl. 597. Cf. Salisbury v. Andrews, 12S Mass. .;;;!'). 4s Smith V. Exchange, 91 Wis. 360, 64 N. W. 1041, .30 L. R. A. 504, 51 Am. St. Rep. 912. 49 Graves v. Shaltuck, 35 N. H. 257, 69 Am. Dec. 536: Day v. Green. 4 Ciish. (Mass.) 4:5:!. Where a council grants a permit to move a building thro;igh the streets, there is no implied auli:ority to cut or remove branches from trees located between the sidi'w alk and the curb of the street, though necessarj' to use the iJermit. Stalt' v. Pratt, 52 Minn. 131, 53 N. W. 10i!9. 384 STKEETS, SKWERS, PARKS, AND BUILDINGS. (Ch. 15 for unloading cars,^" but such obstruction must be discon- tinued within the shortest practica])le time. And it has been lield that the right to abate a street nuisance by proceeding in equity cannot be defeated by a municipal license or laches or estoppel,''^ nor by prescription or statute of limitations. °* The mimicipality, in maintaining the streets, is performing a gov- ernmental function which cannot be alienated ^^ or lost; ^* and herein applies the maxim, "Nullum tempus occurrit regi." eo Mathews v. Kelsey, 58 Me. 56, 4 Am. liep. 248. 61 Webb V. City of Demopolis, 95 Ala. 116, 13 South. 289, 21 L. R. A. 63. But where a city sees a landowner taking possession of a part of a street under an apparent claim of right, and, without objection, liermits him to go on for years making improvements which the as- sertion of the public right to the whole street would destroy or im- pair, it is estopped by its laches to assert such right. Corey v. Ft. Dodge, 118 Iowa, 742, 92 N. W. 704. See, also, Dickerson v. City of Le Roy, 72 111. App. 588. B2 Teass v. St. Albans, 38 W. Va. 1, 17 S. E. 400, 19 L. R. A. 802; Meyer v. City of Liucoln, 33 Neb. 566, 50 N. W. 763, 18 L. R. A. 146, 29 Am. St. Rep. 500. 63 Chicago General Ry. Co. v. Railway Co., 62 111. App. 502; Col- woll V. Waterbury, 74 Conn. 568, 51 Atl. 530, 57 L. R. A. 218; NEW YORK & N. E. R. CO. V. BRISTOL, 151 U. S. 556, 14 Sup. Ct. 437, 38 L, Ed. 269; Wabash R. Co, v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748, 42 L. Ed. 87. A city in Indiana, vested by statute with exclusive authority, juris- diction, and power over its streets, cannot alienate such power by a grant to a street railway company in perpetuity to build and operate its road through the streets. Logansport R. Co. v. Logansport, 114 Fed. 688. See Florida Cent. & P. R. Co. v. Railroad Co., 39 Fla. :]06, 22 South. 692; Hibbard, Spencer, Bartlett & Co. v. Chicago, 173 111. 91, 50 N. E. 256, 40 L. R. A. 621. 84 Atlantic City v. Snee, 68 N. J. Law, 39, 52 Atl. 372; Blenner- hassett v. Forest City, 117 Iowa, 680, 91 N. W. 1044; Wakeling v. Cocker, 23 Pa. Super. Ct. 196; Sims v. Chattanooga, 2 Lea (Tenn.) 694; Burbank v. Fay, 65 N. Y. 57; Kopf v. Utter, 101 Pa. 27. 131) USE OF STREETS. 385 Authorized Uses. The municipality may also authorize the use of streets for telegraph, telephone, and electric poles and wires, ^^ street and commercial railways,^* and may allow below the surface the laying of gas, water, and sewer mains and pipes, and the con- struction of subways.^^ Poles may not be planted and wires strung- for electric use in the streets without express consent of the municipality ; ^^ and it has been held that the munici- pality may not grant this privilege unless thereunto expressly authorized. ®® But the decisions upon this subject are not en- 05 Aurora Electric Light & Power Co. v. McWethy, 104 111. App. 479; McWethy v. Power Co., 202 111. 218, 67 N. E. 9; Village of London Mills v. Telephone Circuit, 105 111. App. 14G; Taylor v. Rail- way, 91 Me. 193, 39 Atl. 560, 04 Am. St. Rep. 210; Mutual Union Telegraph Co. v. Chicago, 16 Fed. 309. A city cannot revoke its license granted to a telephone companj to erect poles on its streets after the company has completed its work in accordance with the conditions of the ordinance granting the permit. Phillipsburg Electric Lighting, Heating & Power Co. v. Phillipsburg, 00 N. J. Law, 505. 49 Atl. 445. See Wyandotte Electric Light Co. T Wyandotte, 124 Mich. 43, 82 N. W. 821; RUTLAND ELECTRIC LIGHT CO. v. ELECTRIC LIGHT CO.. 65 Vt. 377. 26 Atl. 635, 20 L. R. A. 821, 36 Am. St. Rep, 868. But see Coverdale V. Edwards, 155 Ind. 374, 58 N. E. 495. 56 Taylor v. Railway, supra; HUDSON RIVER TELEPHONE CO. V. RAILWAY CO., 135 N. Y. 393, 32 N. E. 148, 17 L. R. A. 074, 31 Am. St. Rep. 838; Detroit Citizens' St. Ry. Co. v. Detroit, 64 Fed. 028, 12 C. C. A. 365, 26 L. R. A. 667; Ruttle v. Covington, 10 S. W. 044. 10 Ky. Law Rep. 766; Daly v. Railroad Co., 80 Ga. 793, 7 S. E. 146, 12 Am. St. Rep. 286. B7 Rochester & L. O. Water Co. v. Rochester, 176 N. Y. 36, 68 N. E. 117; Empire City Subway Co. v. Railroad Co., 159 N. Y. 555, .54 N. E. 1092; City of Quincy v. Bull, 100 111. 337; Milhau v. Sharp. 27 N. Y. 611, 84 Am. Dec. 314; STATE v. COKE CO., 18 Ohio St. 202. -8 State V. Sheboygan, 111 Wis. 23, 86 N. W. 657; Domestic Tele- phone Co. V. Newark, 49 N. J. Law, 344, 8 Atl. 128; Julia Bldg. Ass'n V. Telephone Co., 88 Mo. 258, 57 Am. Rep. 398. 59 Commonwealth v. Boston, 97 Mass. 555; Irwin v. Telephone Co., 67 La. Ann. 03; Dodd v. Traction Co., 57 N. J. Law. 482. 31 ING.CORP. — 25 386 STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 tirely harmonious ; •" and, if such electric wires become so nu- merous as to impair the public safety, the municipality may require that they shall be taken off the streets and placed be- low the surface.'^ Street Railways. After some contention, the power of a municipality to au- thorize the construction of street railways in its streets has been thoroughly established and uniformly recognized ; but the city may impose such conditions as the safety of the public or the welfare of the municipality may require,®^ not only at the time of granting the privilege, but also thereafter in the exercise of the poHce powers ; ^' and it has been held that, for a breach of these conditions, franchises may be declared for- feited by the court.** The power of the city to grant a fran- Atl. 980; Barhite v. Telephone Co., 50 App. Div. 25, 63 N. Y. Supp. 059. Such privilege, being legislative in its character, is not subject to judicial revision at the suit of an abutting owner on the ground of inexpediency. Lange v. Railway Co. (Wis.) 95 N. W. 952. 80 Meyers v. Electric Co., 63 N. J. Law, 573, 44 Atl. 713; Dodd v. Traction Co., supra; East Tennessee Telephone Co. v. Russellville, 106 Ky. 667, 51 S. W. 308, 21 Ky. Law Rep. 305; Julia Bldg. Ass'n v. Telephone Co., 88 Mo. 258, 57 Am. Rep. 398; Western Union Tele- graph Co. V. New York, 38 Fed. 552, 3 L. R. A. 449; City of Geneva V. Telephone Co., 30 Misc. Rep. 236, 62 N. Y. Supp. 172; State ex rel. National Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113. 61 O'Brien v. Erie, 20 Pa. Co. Ct. R. 337, 7 Pa. Dist. R. 491; Michigan Telephone Co. v. Charlotte, 93 Fed. 11; Chesapeake & P. Telephone Co. v. Mayor, 98 Md. 689. 44 Atl. 1033; Western Union Telegraph Co. v. New York, 38 Fed. 552, 3 L. R. A. 449. 62 Path V. Railway Co., 105 Mo. 537, 16 S. W. 913, 13 L. R. A. 74; City of Philadelphia v. Railway Co., 143 Pa. 444, 22 Atl. 695; City of New Orleans v. Railway Co., 40 La. Ann. 587, 4 South. 513. 83 State V. Sloan. 48 S. C. 21, 25 S. B. 898; Textor v. Railroad Co., .")9 Md. 63, 43 Am. Rep. 340; Pittsburg, Ft. W. & C. Ry. Co. v. Chi- cago, 159 111. 309, 42 N. E. 781. 64 State V. Railway Co., 72 Wis. 612, 40 L. R. A. 487. 1 L. R. A. 771; Galveston «& W. Ry. Co. v. Galveston, 90 Tex. 398, 39 S. W. 96, 36 L. R. A. 33. § 131) USE OF STREETS. 387 chise for the use of its streets to an ordinary railroad without express authority has been doubted ; " and it has been held that such right cannot be granted for the private use of indi- viduals.*^ Surface and Underground Control of Streets. The municipality has control of its streets belovr as well as above the surface, and may therefore grant to public service corporations the right to lay pipes and mains and to construct subways for all proper municipal purposes. These may in- clude not only pipes and mains for water, gas, and sewage. in case the city has no public system, but also conduits for electric wires and subways for railroads. And in general, it may be said that the power of the municipality over and under its streets, when exercised for the public use, is ple- nary.*^ 86 STANLEY V. DAVENPORT, 54 Iowa, 463, 2 N. W. 1064. 6 .\. W. 706, 37 Am. Rep. 216; Ruttle v. Covington, 10 Ky. Law Rep. 766, 10 S. W. 644; Daly v. Railroad Co., 80 Ga. 793, 7 S. E. 146, 12 Am. St. Rep. 286; McGann v. People, 194 111. 526, 62 N. E. 941. A municipality, having power over its streets, must exercise it for the general public, and cannot grant a railway company such use of a street as will destroy its public usefulness. Burnes v. St. .loseph, 91 Mo. App. 489. 6B People v. Blocki, 203 111. 363, 67 N. E. 809; Schwede v. Brew- ing Co., 29 Wash. 21, 69 Pac. 362; Gustafson v. Hamm, 56 Minn. 334, 57 N. W. 1054, 22 L. R. A. 565; Glaessner v. Association, 100 Mo. 508, 13 S. W. 707 ; 3 Elliott, R. R. § 1077. But see Texarkana & Ft. S. R. Co. V. Railroad Co., 28 Tex. Civ. App. 551, 67 S. W. 525. The erec- tion of buildings on a public street is an invasion of the rights of both the public and every owner of land abutting thereon. North- ern Pac. Ry. Co. v. Lake, 10 N. D. 541, 88 N. W. 461; Hanbury v. Lumber Co., 98 Ga. 54, 26 S. E. 477. 6 7 City of Richmond v. Smith (Va.) 43 S. E. 345; Budd v. Rail- road Co., 63 N. J. Eq. 804, 52 Atl. 1130; Leeds v. Riclimond, 102 Ind. 372. 1 N. E. 711; City of Cincinnati v. Penny, 21 Ohio St. 499, 8 Am. Rep. 73; McKevitt v. Hoboken, 45 N. J. Law, 482; Horton v. Mayor, 4 Lea (Tenn.) 39, 40 Am, Rep. 1; Mayor, etc, of City of Americus v. Eldridge, 64 Ga. 524, 37 Am. Rep. 89; Pool v. Trexler, 76 N. C. 297; LOWELL v. BOSTON, 111 Mass. 454, 15 Am. Rep. 39; 388 STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 Vacation. Possessing paramount power over streets, the state may vacate them, or authorize their vacation by the municipaUty. Such power, being discretionary, is rarely supervised or inter- fered with by the courts ; but the vacation must be for public, not private, benefit. The vacation may be total, or partial only, and must be effected in the mode prescribed by law. Abutters have peculiar rights in streets, and always assert the old adage, "Once a highway, always a highway." They may not only stand surely upon "due process of law" for protec- tion, but may also insist upon the constitutional right to com- pensation for the appropriation of their easement of access to the public use.'* Abandonment. Abandonment of streets has been recognized by some Amer- ican courts as an informal but sufficient vacation ; but, since it cannot be based upon lapse of time or nonuser, the evidence of the municipal conduct must exclude all reasonable doubt as to the fixed purpose to vacate a street.®* People V. Nearing, 27 N. Y. 309; Ferrenbach v. Turner, 86 Mo. 416, 56 Am. Rep. 437. As to the use of the surface of the street for hack stands, see Odell v. Bretney, 38 Misc. Rep. 603, 78 N. Y. Si-pp. 67. 88 Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. Rep. S31; LAHR'S CASE, 104 N. Y. 2G8, 10 N, E. 528; Butterworth v. Bartlett, 50 Ind. 537; City of Cincinnati v. White, 6 Pet. (U. S.) 431, 8 L. Ed. 452; Coster v. New Yorli. 43 N. Y. 399; Elliott, Roads & S. p. 6G4; James v. Darlington, 71 Wis. 173, 36 N. W. 835; Hos- ing V. Scott, 107 III. GOO. But on compensation, see McGee's Appeal, 114 Pa. 470, 8 Atl. 237. 69 Warner v. Holyoke, 112 Mass. 362; City of Peoria v. Johnston, 56 111. 45; Driggs v. Phillips, 103 N. Y. 77, 8 N. E. 514; State v. Culver, 65 Mo. 607, 27 Am. Dec. 295; Reilly v. Racine, 51 Wis. 526, 8 N. W. 417; Sanborn v. School Dist, 12 Minn. 17 (Gil. 1); Lathrop V. Railroad Co., 69 Iowa, 105, 28 N. W. 465. § 132) ABUTTING OWNERS. 889 ABUTTING OWNERS. 132. An abntting ovirner sliares in all the rights of tlie gen- eral public, and, in addition thereto, has such special rights as arise from his property abutting on the street. Among- these is the right of free and unimpeded ingress and egress to and from his property for himself and animals and goods, even though he may thereby cause temporary incon- venience to the public in general.'" The convenient use of property, in urban communities, is dependent upon connections 70 Callanan v. Oilman, supra; STORY'S CASE, 90 N. Y. 122. 43 Am. Rep. 146. Owners of property abutting on an alley have property rights not shared by the general public in the entire alley, and the obstruction of a terminus of the alley by the city, thus preventing egress and ingress from the street, is an actionable private wrong. Dries v. St. Joseph. 98 Mo. App. 611, 73 S. W. 723. But the mere fact that an obstruction in a street causes inconvenience in getting from the street in front of his house to a particular part of the city does not constitute such special damage as to entitle the owner to an injunc- tion. Guttery v. Glenn. 201 111. 275. 66 N. E. 305. It has been held that an abutting owner may maintain injunction proceedings to prevent the obstruction of a public street, he having an especial interest therein because the street makes his property a corner lot, and affords him access to the sides and rear thereof. Longworth v. Sedevic, 165 Mo. 221, 65 S. W. 260. See Davis v. Appleton, 109 Wis. 580, 85 N. W. 515; City of Du- buque V. Maloney, 9 Iowa, 450, 74 Am. Dec. 358; Donahue v. Gas Co. (Sup.) 85 N. Y. Supp. 478 (shade trees destroyed by escaping gas); Pence v. Bryant (W. Va.) 46 S. E. 275; Village of Winnetka v. Railway Co., 107 111. App. 117 ; Id., 204 III. 297, 68 N. E. 407 ; Young V. Rothrock, 121 Iowa, 588, 96 N. W. 1105; Same v. Chadima. Id.; Montgomery City Council v. Parker, 114 Ala. 118, 21 South. 452, 62 Am. St. Rep. 95. An abutting owner may place steps, stepping stones, hitching posts, and awning posts on the highway. Louth v. Thompson, 1 Pennewill (Del.) 149. 39 Atl. 1100. But see West v. Bancroft, 32 Vt. 367. 390 STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 with sewer, water, and gas pipes. For these the owner himself must pay. The property is subject to contribution of its share of the cost of building sidewalks and pavements in front of if^ AH these are necessary to the enjoyment of his property, and are as much property as is the land itself, and equally within constitutional protection.''^ Vaults under Sideivalks. If the fee of the street is in the abutting owner, it is held that he has' right to excavate under the walk/^ subject to mu- nicipal regulations, and to use space there for such purposes as do not interfere with full and complete use of the street by the public.'^* If the fee to the street belongs to the munici- pality, this right may be conceded to the abutter under like conditions.''^ Whether his right in such case is equal to that when he owns the fee to the street is not definitely established by the decisions of the courts.''® This is true even in New York, where the rights of the abutting owner have been most 71 2 Dill. Mun. Corp. § 656a. T2 First Nat. Bank v. Tyson, 13.3 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; Story v. Railroad Co., 90 N. Y. 122, 43 Am. Dec. 146 ; LAHR v. RAILWAY CO., 104 N. Y. 268, 10 N. E. 528. The occupants of a building abutting upon a sidewalk are entitled to have the light and air pass unobstructed across the open space between the surface of the sidewalk and the sky. John Anisfield Co. V. Edward B. Grossman & Co., 98 111. App. 180. See Townsend v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441. T3 First Nat. Bank v. Tyson, supra; McCarthy v. Syracuse, 46 N. Y. 194; Davis v. Clinton, .50 Iowa, 588; Fisher v. Thirkell, 21 Mich. 1, 4 Am. Dec. 422; Papworth v. Milwaukee, 64 Wis. 389, 25 N. W. 431. See Deshong v. New York, 74 App. Div, 234, 77 N, Y. Supp. 563. 74 Heineck v. Grosse, 99 111. App. 441; Louth v. Thompson. 1 Pennewill (Del.) 149, 39 Atl. 1100 ; City of Ord v. Nash, 50 Neb. .335, 69 N. W. 964; Gridley v. Bloomlugton, 68 111. 50; Robert v. Sadler,. 104 N. Y. 229, 10 N. E. 428, 58 Am. Rep. 498. 7 6 Tied. Mun. Corp,. § 298. T« Nelson v. Godfrey, 12 111. 22; Gridley v. Bloomlngton, supra. § 132) ABUTTING OWNERS. 391 repeatedly and thoroughly litigated.''^ Whatever the rights of the abutter may be in either instance, they must be held by him subject to the paramount rights of the public, which are not confined to the right of travel, only, but extend to all legiti- mate street uses, both above and below the surface, which the pubUc welfare may require.'^* Lateral Support. An abutting owner has at common law no right to lateral support of street soil,'^® and none can be acquired by prescrip- tion or lapse of time ; *" and, though the street grade may be changed so that his fences fall, he has no action therefor.*^ Nor can an abutting owner be compelled to repair sidewalks or streets in front of his property in absence of statutory pro- vision, no liability for such repair existing at common law.^^ Additional Burdens — Compensation. If additional burdens are imposed upon a street, abutting owners are entitled to compensation, if damaged ; and this notwithstanding the fee is in the public, or the municipality for public use.**^ But "there must be an injury to the present use and enjoyment of the land." So it is held that they may re- 77 Robert V. Sadler, 104 N. Y. 229, 10 N. E. 428, 58 Am. Rep. 498; McCarthy v. Syracuse, 46 N. Y. 194; Deshong v. New York, 74 App. Div. 234, 77 N. Y. Supp. 563. 7s Allen V. Jersey City, 53 N. J. Law, 522. 22 Atl. 257; Louth v. Thompson. 1 Pennewill (Del.) 149, 39 Atl. 1100. 7 Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57; Taylor v. St. Louis, 14 Mo. 20, .55 Am. Dec. 89; Castleberry v. Atlanta, 74 Ga. 164; City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243. 80 Mitchell v. Rome, 49 Ga. 19, 15 Am. Rep. 6G9. 81 City of Cincinnati v. Penny, 21 Ohio St. 499, 8 Am. Rep. 73. 8 2 Village of Fulton v. Tucker, 3 Hun (N. Y.) 529; Wenzlick v. Mc- Cotter, 87 N. Y. 122, 41 Am. Rep. 358. 88 Theobold v. Railway Co., 66 Miss. 279, 6 South. 230. 4 L. R. A. 735, 14 Am. St. Rep. 564. Where a city erects buildings in a street without authority, an abutting property owner injured by the nuisance so caused is en- titled to maintain an action against the city to abate the nuisance, 392 STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 cover damages for the construction of a common traffic rail- road,'* but not for a mere street railway, whether operated by cable, electric, or horse power."' Balconies, Azvniiigs and Other Projections. The abutter has no right to project his buildings, or any part thereof or attachment thereto, over the street line, with- out municipal consent ; *® but a city may permit abutters to aud recover damages occasioned thereby. Pettit v. Grand Junction, 119 Iowa, 352, 93 N. W. 381. In the erection of telegraph and telephone lines, those exercising the franchise may be compelled to pay damages to the abutting own- ers. Patton V. Chattanooga, 108 Tenn. 197, 65 S. W. 414. 84 Ruttle V. Covington, 10 Ky. Law Rep. 766, 10 S. W. 644; Perry V. Railroad Co., 55 Ala. 413, 28 Am. Rep. 740; Imlay v. Railroad Co., 26 Conn. 249, 68 Am. Dec. 392; Nicholson v. Railroad Co., 22 Conn. 74, 56 Am. Dec. 390; Cox v. Railroad Co., 48 Ind. 178; Lexington & O. R. Co. V. Applegate, 8 Dana (Ky.) 289, 33 Am. Dec. 497; Wil- liams V. Railroad Co., 16 N. Y. 97, 69 Am. Dec. 651; Inhabitants of Springfield v. Railroad Co., 4 Cush. (Mass.) 71; Harrington v. Rail- road Co., 17 Minn. 215 (Gil. 188); Southern Pac. R. Co. v. Reed, 41 Cal. 256. In People v. Harris, 203 111. 272, 67 N. E. 785, 96 Am. St. Rep. 304, it was held that a municipality has no power to authorize by ordinance the construction by a private citizen of a projection ex- tending into the street in front of his property for any distance — even the smallest — so as to deprive the public of their right to the use of the street in its entirety. 8 5Kennelly v. Jersey City, 57 N. J. Law, 293, 30 Atl. 531, 26 L. R. A. 281 ; Hine v. Railroad Co., 42 Iowa, 636 ; Stewart v. Railway Co., 58 111. App. 446 ; Merrick v. Railroad Co., 118 N. C. 1081, 24 S. B. 667; Elliott v. Railroad Co., 32 Conn. 579; Hobart v. Railroad Co., 27 Wis. 194, 9 Am. Rep. 4G1; Citizens' Coach Co. v. Railroad Co., 33 N. J. Eq. 267, 36 Am. Rep. 542; Savannah & T. R. Co. v. Sa- vannah, 45 Ga. 602; Brown v. Duplessis, 14 La. Ann. 842; Hiss v. Railway Co., 52 Md. 242, 36 Am. Rep. 371. 86 Young V. Rothrock, 121 Iowa, 588, 96 N. W. 1105; Same v. Chadima, Id., where an ice chute across a street was held to be a nuisance. See Broadbelt v. Loew, 15 App. Div. 343, 44 N. Y. Supp. 159. But where a statute authorizes the construction, the city has no autliority to prohibit it. French v. Bruii.swick, 21 Me. 29, 38 Am. § 133) SEWERS. 393 extend balconies, bay windows, awnings, or signs into streets;*^ and it has been held that in such case an adjoining property owner may not maintain an action for inconvenience suffered by him therefrom.** SE'W^ERS. 133. The construction of sewers is an inherent mnnicipal function for sanitary purposes, and may be impera- tively imposed upon a municipality by the state. The power and duty of the municipality in preserving the public health often require the construction of a sewer system for the use of the citizens, and, in commenting upon the famous Detroit Park Case, Judge Dillon argues that the legislature would have authority to compel the construction of a sewer- age system for the benefit of the city.*^ But whether this is a governmental or municipal power and duty is not clear from the decisions of the courts, some opinions suggesting that, Dec. 250; City of Allegheny v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 649; Hawkins v. Sanders, 45 Mich. 491, 8 N. W. 98; Day v. Mil- ford, 5 Allen (Mass.) 98; Bohen v. Waseca, 32 Minn. 176, 19 N. W. 730, 50 Am. Rep. 564; Jones v. Boston, 104 Mass. 75, 6 Am. Rep. 194. 87 Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603; Van O'Linda V. Lothrop. 21 Pick. (Mass.) 292, 32 Am. Dec. 261; Ivins v. Trenton, 68 X. J. Ivaw, 501, 53 Atl. 202; Id., 55 Atl. 1132. But where a property owner conducted stores on opposite sides of the street, and built a passway over the street connecting the t^'o stores, the ordinance authorizing such construction was held invalid. Townsend v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441. 88 Garrett v. Janes, 05 Md. 260, 3 Atl. 597; Salisbury v. Andrews, 128 Mass. 336. But see John Anisficld Co. v. Edward B. Grossman & Co., 98 III. App. 180. If his means of egress and ingress from and to his property are obstructed, he may maintain a suit against the person erecting the obstruction for its removal. Bourbon Stockyard Co. v. Woodley, 25 Ky. Law Rep. 477, 76 S. W. 28. 89 1 Dill. Mun. Corp. § 73. 394 STREETS, SBWERS, PARKS, AND BUILDINGS. (Ch. 15 as a part of the high duty of preserving the public health, it is governmental, *° while others indicate that it is municipal, as being for the special benefit of the people of the municipal- ity.^^ Certain is it that the power is an important one, and is universally exercised in all the larger and many of the smaller cities. Municipal Discretion — Extraterritorial Acquisition. Unless the duty is positively imposed by the state, the mu- nicipality has discretion to determine whether it will construct a system of sewers, and also the nature and cost of the sys- tem.^^ This function is legislative, and the municipality can- not be held liable for failure to exercise it, and thus provide a system of its own,^^ or for mistake made in the choice of the systems offered.^* Usually this power is held, as we have heretofore seen,^^ to be confined to the municipal boundaries: but it is often expressly permitted to the municipality to ac- quire property outside its limits for obtaining an outlet for its sewerage system, and it has been held that this power to obtain an extraterritorial outlet may be implied from the power to construct such system.^' 90 Cochrane v. Maiden, 152 Mass. 365. 25 N. E. 620; Noble v. St. Albans, 56 Vt. 522; Springfield v. Spence, 39 Ohio St. 665; Weis v. Madison, 75 Ind. 241, 39 Am. Rep. 135. 81 Donahoe v. Kansas City, 136 Mo. 657, 38 S. W. 571; Ostrander V. Lansing, 111 Mich. 693, 70 N. W. 332; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78. 9 2 Carr v. Northern Liberties, 35 Pa. 324, 78 Am. Dec. 342. 9 3 MILLS V. BROOKLYN, 32 N. Y. 489; Henderson v. Minneap- olis, 32 Minn. 319, 20 N. W. 322; Cimamins v. Seymour, 79 Ind. 491, 41 Am. Rep. 618; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562 ; Jordan v. Benwood, 42 W. Va. 312, 26 S. E. 266. 36 L. R. A. 519, 57 Am. St. Rep. 859. 9 4 MILLS V. BROOKLYN, supra; Perry v. Worcester, 6 Gray (Mass.) 544, 66 Am. Dec. 431; Diamond Match Co. v. New Haven, 55 Conn. 510, 13 Atl, 409, 3 Am. St. Rep. 70. 9 5 Ante, § 55. 9 6 May wood Co. v. May wood, 140 111. 216, 29 N. E. 704. It has been held that a city has inherent authority, unless ex- § 133) SEWERS. 895 Eminent Domain. The municipality may, of course, use the streets for the construction of a sewerage system, and it has been held that it has also the power of eminent domain over other property for this purpose.®'' And this is consistent with the idea that the construction of a sewerage system is a governmental function. But in other cases it has been held that the power of eminent domain can be used for this purpose only when expressly granted to the municipality.'** Expense of Construction — Connection. It is competent for the city to assess the expense of building a sewerage system for a certain street against the abutting property,^® and to require all persons residing on the street to connect with the sewer; ^°° and it has been held that no prop- erty owner can be prevented from tapping a municipal sewer.^**^ pressly forbidden by its charter, to make contracts and construct works beyond the corporate limits for the discharge of sewage, where such discharge is necessary or manifestly desirable. City of Cold- water V. Tucker, 36 Mich. 474. 24 Am. Rep. 601. 97 Hildreth v. Lowell, 11 Gray (Mass.) 345. 8 Allen V. Jones, 47 Ind. 438. 99 Grimmell v. Des Moines, 57 Iowa, 144, 10 N. W. 330; Hunger- ford V. Hartford, 39 Conn. 279; Walker v. Aurora, 140 111, 402, 29 N. E. 741; City of Philadelphia v. Tryon, 35 Pa. 401; Wright v. Boston, 9 Cush. (Mass.) 233; City of Atchison v. Price, 45 Kan. 296, 25 Pac. 605; City of Springfield v. Sale, 127 111. 359, 20 N. E. 86; Hill V. Warrell, 87 Mich. 135, 49 N, W. 479. 100 City of Mobile v. Water Supply Co., 130 Ala. 379, 30 South. 446. The requirement for a sewer connection with a dwelling on prem- ises abutting on a sewer in a city is within the power of the local authorities, and this requirement may be anticipated for municipal convenience, and as a necessary police regulation. Van Wagoner v, Paterson, 67 N. J. Law, 455, 51 Atl. 922. 101 Taylor v. Austin, 32 Minn. 247, 20 N. W. 1.57: Buchanan v. Duluth, 40 Minn. 402. 42 N. W. 204; Semple v. Vicksburg, 02 Miss. 63, 52 Am. Rep. 181; Kranz v. Baltimore, G4 Md. 491, 2 Atl, 908. 396 STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 MatJitcnance. A sewer being once completed, it is the imperative municipal duty to see that it is properly cared for ; and for failure to per- form this function the municipality may become liable in dam- ages.^°' PARKS. 134. Public parks and squa.Tes are proper objects of municipal concern, as means for tlie promotion of public bealth and comfort; and property may be acquired and held by a municipality for tbese recognized public pur- poses. Public parks, such as Hyde Park and the Bois de Boulogne, and public squares, such as Trafalgar Square and the Place de la Concorde, have long been recognized and maintained as municipal attractions and conveniences for the inhabitants and sojourners of a city. Modern sanitation has proven them to be not only beautiful and attractive, but useful and necessary as active agents in promoting public health, so that not only in Paris, London, and New York, but in lesser cities, whole squares have been acquired from private owners in districts of congested population, buildings demolished, and the ground prepared for trees, grass, flowers, and shrubs, which are grown there not merely for ornamental, but sanitary purposes as well. Recognizing these as an important public use, the states have generally conferred upon municipalities the sov- ereign power of eminent domain for the purpose of condemn- ing property for the public use in parks and squares, and have often authorized this to be done beyond the Umits of the mu- nicipal corporation.^"' 102 Burnett v. New York, 36 App. Div. 458, 55 N. T. Supp. 893. The sewers of a city are its private property, and the general public of the state at large have no interest in them. Donahoe v. Kansas City, 136 Mo. 657, 38 S. W. 571; Clay v. St. Albans, 43 W. Va. 539, 27 S. E. 3G8. 64 Am. St. Rep. 883; City of Fergus Falls v Boen, 78 Minn. 18G, SO N. W. 961. 103 Higginson v. Nahant, 11 Allen (Mass.) 530; Mayor v. Commis- 8 134) PARKS. 897 Municipal not Governmental Concern. But though parks and squares are recognized as of public use, they are matters of municipal rather than governmental concern. They interest the people of the city rather than the general public. It has therefore been held that the establish- ment of parks and squares is within the discretion of the mu- nicipality.^*'* These cases are not easily reconciled with those which hold that a city may be compelled to construct drains and sewers, which are likewise means for the promotion of municipal health. Various states, however, according to local conditions, very naturally hold different doctrines upon this subject ;^°^ and the rulings in the manufacturing states of Connecticut and Rhode Island would not probably be in ac- cord with the decisions in agricultural states like Iowa, Mis- sissippi, and Texas. In the celebrated Detroit Park Case, the Supreme Court of Michigan ruled that the state could not compel the city of Detroit to expend money for the purchase and improvement of land for a municipal park, Judge Cooley declaring that "it is a fundamental principle in this state, rec- ognized and perpetuated by express provision of the Consti- tution, that the people of every hamlet, town, and city of the state are entitled to the benefit of local self-government." *°° The right of home rule is not so strenuously asserted in all the states,^ "■^ and it cannot be doubted that in some of them, if the municipality should fail to make proper provision for parks necessary for the health of the people residing in the densely settled districts, the Supreme Court would sustain a legislative act compelling a city, in the interest of the public health, to pioners. 44 Mich. 602, 7 N. W. ISO; In re Mayor, etc., of New York, 99 N. Y. 5(59, 2 N. E. 642; Mills, Em. Dom. §■§ 49, 50. 104 PEOPLE V. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. 106 David v. Water Committee, 14 Or. 98, 12 Pac. 174; People v. Mayor, 29 Mich. 347; People v. Chicago, 51 III. 17, 2 Am, Rep. 278. 106 PEOPLE V. DETROIT, supra. 107 PERKINS V. SLACK, 86 Pa. 283; DARLINGTON v. MAYOR, V,l N. Y. 164, 88 Am. Dec. 248. 39S STREETS, SEWERS, PARKS, AND BUILDINGS. (Ch. 15 acquire property for public parks, for the sanitation of this congested population. Cannot be Converted to Private Use. It is obvious that the city may accept land dedicated for public parks and squares, and appropriate money out of the municipal treasury for its improvement. If, by the terms of the dedication, the property is expressly appropriated to these particular uses, the city may not aUenate it or convert it to any other purpose, either public or private; ^°* but, if an abso- lute fee is given to the municipality, its power over the prop- erty is unlimited for municipal purposes.^"® It has according- ly been held that a city cannot authorize the erection of any private building upon a public square or park — even a railway station or depot ^^" — and that a lease of the park for private use is void.^^^ Whether a city may use portions of a park for 108 Gilman v. Milwaukee, 55 Wis. 328, 13 N. W. 266; City of Jaojisonville v. Railway Co., 67 111, 540; Price v. Thompson, 48 Mo. 363; City of Chicago v. Ward, 169 111. 392, 48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185. 109 Capdevielle v. Railroad Co., 110 La. 904, 34 South. 868; Brook- lyn Park Com'rs v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; Van Ness V. Washington, 4 Pet. (U. S.) 232, 7 L. Ed. 842. 110 Mayor, etc., of City of Columbus v. Jaques, 30 Ga. 506; State V. Atkinson, 24 Vt. 448; Archer v. Salinas, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145; Northern Pac. Ry. Co. v. Lake, 10 N. D. 541, 88 N. W. 461. In Boston the construction of the subway necessitated the erection of railway stations on Boston Common, and, in order that this might be done (it being prohibited by statute), a statute was passed au- thorizing this use of the public property. PRINCE v. CROCKER, 166 Mass. 347, 44 N. E. 440, 32 L. R. A. GIO. 111 Mayor, etc., of City of Macon v. Huff, 60 Ga. 221; Reichard v. Flinn, 20 Pa. Co. Ct. R. 129. An agreement made by a park commissioner, giving an individual the exclusive privilege of renting chairs in the public parks of a city, under which chairs were substituted for park benches located under the trees, compelling the public to hire chairs, or sit in the sun, is Illegal, as being in derogation of public rights. Kurtz v. § 134) PARKS. 399 public streets seems to be unsettled, some of the cases favor- ing ^^* and others opposing ^^' that power. The cases may probably be reconciled upon the distinction that ways may be opened through a park for pleasure driving and riding, like Rotten Row in Hyde Park, but they may not be used for traffic purposes. Monuments and Fountains. The city has control of the parks and squares, and may per- mit and provide for, or refuse, in its discretion, the erection of monuments, fountains, art galleries, and zoological build- ings,^^* and may pass ordinances for the protection of animals and birds therein, whether confined or allowed to roam and range. Withdraival of Dedication. It is a general principle, as we have heretofore seen,**' that, until acceptance, a common-law dedication may be withdrawn ; and a dedicator may withdraw his dedication for municipal purposes at any time before the municipality expends money Clausen, 38 Misc. Rop. 105, 77 N. Y. Supp. 97. But see Huff v. Macon, 117 Ga. 428, 43 S. E. 708. 112 Brobine v. Revere, 182 Mass. 598. G6 N. E. 607. The trustees of a village have a riuht to inclose a public square so that teams and wagons cannot pass across it. Guttery v. Glenn, 201 111. 275, 66 N. E. 305. 113 Bolster v. Railroad Co., 79 App. Div. 230, 79 N. Y. Supp. 597; Seward v. Orange, 59 N. J. Law, 331, 35 Atl. 799. 11* As to erection of a public building, see Fessler v. Union (N. J. Ch.) 56 Atl. 272. 115 Ante, § 130. See Ayres v. Railroad Co., 52 N. J. Law, 405, 20 Atl. 54; People v. Kingman, 24 N. Y. 559; For«yth v. Dunnagun, 94 Cal. 438, 29 Pac. 770. But a license conforrod by a city, permitting another to erect a wall in the street, which, after erection, became a part of the street, (lid not confer on the licensee any property rights in the street, so as to precliHlf the city from revoking such license, and requiring the removal of the wall without compensation to such licensee. South Highland Land & Improvement Co. v. Kansas City, 100 Mo. App. 518, 75 S. W. 383. 400 STREETS, SEWERS, PARKS, AND BUILDINGS. (Cll. 15 upon the property on the faith of the dedication.^^" But he may not revoke a dedication after the city has made substan- tial expenditure in pursuance of the object of the dedica- tion."' PUBLIC BUILDINGS. 135. Public Buildings are essential for municipal purposes, and tlie povrer to acquire land tlierefor, and erect and maintain necessary buildings thereon, is inherent in the municipal corporation. What may be the necessary buildings for any municipality, or whether any particular building may be appropriate for mu- nicipal uses, is largely a matter of fact, dependent upon pe- culiar municipal conditions ; but it is generally conceded that the city council possesses inherent power to provide appropri- ate room for its own meeting, and for the transaction of the necessary municipal business. ^^* It is also obvious that it must provide a proper place for the detention of municipal prisoners,^ ^® and also the proper housing and protection of its fire apparatus ; and it has been held, also, that a city school building may be erected without express charter authority. ^^° And in general it may be said that the municipality has implied 116 City of San Francisco v. Canavan, 42 Cal. 541; Logan v. Rose, 88 Cal. 263, 26 Pac. 106; Tillman v. People, 12 Mich. 401; Scbmitz V. Germantown, 31 111. App. 284; Hanson v. Eastman, 21 Minn. 509; Perry v. Railroad Co., 55 Ala. 413, 28 Am. Rep. 740. 117 Crocket v. Boston, 5 Cusb. (Mass.) 182. The dedicator and the city may jointly arrange to revoke a dedica- tion after acceptance, in case the rights of third persons have not vested by reason of the purchase of lots fronting on the property dedicated. Municipality No. 3 v. Cotton Press Co., 7 La. Ann. 270. 118 People V. Harris, 4 Cal. 9; Reynolds v. Albany. 8 Barb. (N. Y.) 597; Vanover v. Davis, 27 Ga. 357; Torrent v. Muskegon, 47 Mich. 115, 10 N. W. 132. 41 Am. Rep. 715. 119 Long V. Elberton, 109 Ga. 28, 34 S. E. 333, 46 L. R. A. 428, 77 Am. St. Rep. 303; Felts v. Memphis, 2 Head (Tenn.) 650; Davis v. Knoxville, 90 Tenn. 599, 18 S. W. 254. 120 Mayor, etc., of City of Cartersville v. Baker, 73 Ga. 686. '1 til § 135) PUBLIC BUILDINGS. 401 power to erect and maintain any public building which is nec- essary for the performance of its public functions, though it has been declared that it has no right to incur a debt for such purpose.^*^ Usually, however, charter power to acquire neces- sary land and erect necessary buildings for municipal purposes is expressly conferred, under which these functions are clearly in the municipal discretion. Implied Pozver to Furnish and Maintain. Power to erect and maintain such buildings implies also the power to properly furnish, repair, and otherwise care for them all of which are likewise within municipal discretion ; and this discretion has been held to be absolute in the matter of furnishing and decorating the council room, and an injunctio! accordingly refused to prevent the council from purchasing and hanging portraits of city fathers upon the walls of the council chamber/^^ Appropriations for municipal buildings and their furnishing have been also contested on the ground of extravagance and public inutility ; and it has been held that, if the obvious primary object is to serve some private purpos- the expenditure will be enjoined, ^^^ even though the public might gain some incidental benefit. But the courts have gen- erally recognized the legislative discretion to determine wheth- er a building is needed, ^^* and what expense the city may properly incur therefor, and have therefore refused to enjoir appropriations for buildings provided for prospective wants or otherwise, in which the amount of the expenditure seemed unwise to the court and jury, when it was being made for a necessary municipal purpose.^** 121 People V. Harris, 4 Cal. 9. 122 Reynolds v. Albany, 8 Barb. (N. Y.) 597. 123 Bates V. Bassett, 60 Vt. 530, 15 Atl. 200, 1 L. R. A. 166. i2i City of Galveston v. Devlin, 84 Tex. 319, 19 S. W. 395; Ely v. Rocb ester, 26 Barb. (N. Y.) 133. 120 Torrent v. Muskegon, 47 Mich. 115, 10 N. W. 132, 41 Am. Rep. ING.COBP.— 26 402 STREETS, SEWERS, PARKS, AND BUILDINGS. (Cll. 15 Municipal Discretion in Erection. The power of the state to compel the erection of public buildings has been much mooted, and the general tendency of the decisions is to leave such things to the municipal dis- cretion. It has accordingly been held that the city, being the county seat, may be authorized to levy taxes for the erection o^" county buildings.^^* But in the matter of the magnificent city building of Philadelphia, involving the expenditure of millions of dollars, it was held competent for the legislature to em- power the construction by commissioners "of all public builf' ings required to accommodate the courts for all the municipal purposes within the city," and to call on the city annually for a sum sufficient to meet the annual estimates on the building. The act also required the city to make assessments to meet these annual requisitions, when it had no voice, except in the legislature, in determining the character of the building, or the personnel of the construction committee. This strenuous legislation was upheld by the Supreme Court of Pennsylvania over the protest of the city, and the levies compelled by man- damus, even after the Constitution of 1874,^^'^ adopted pending the erection of the city hall, had forbidden the legislature "to interfere with any municipal improvement, money, property or effects * * * or to levy taxes, or perform any municipal function whatever," and provided that "no debt shall be con- tracted or liability incurred by any municipal commission ex- cept in pursuance of appropriations previously made by the municipal government," on the ground that this fundamenta' law did not interfere with existing commissioners, plans, or contracts.^-' The ruling in this case has not met with general approval, and has rarelv been followed . the tendency of the 715; Greenbauks v, Boutwell. 43 Vt. 207; Greeley v. People, 60 111. 19; Spaulding v. Lowell, 23 Pick. (Mass.) 71. 126 Callam v. Saginaw, 50 Mich. 7, 14 N. W. 677. But a distinc- tion should be noted between permission and compulsion. Id. 127 Alt. 3. § 20; art. 15, § 2. 128 PEKKIXS V. SLACK, 86 Pa. 283. S J 35) PUBLIC BUILDINGS, 403 courts being to hold that municipal buildings are matters of municipal, rather than governmental, concern. ^^' 129 Callam v. Saginaw, supra. STATE v. DENNY, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; City of Evansville v. State, 118 Ind. 426, 21 N. B. 267, 4 L. R. A. 93; State v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; State v. Seavey, 22 Neb. 455, 35 N. W. 228. 404 TORTS. (Ch. 16 CHAPTER XVI. TORTS. 136. Civil Liability. 137. Governmental Duty — No Action for Failure In. 138. Municipal Duty — Liability for Failure In. 139. Municipal Performance of Governmental Duty. 140. Reasonable Care of Streets. 141. Obstructions. 142. Sidewallvs. 143. Bridges and Viaducts. 144. Drains and Sewers. 145. Respondeat Superior. 146. Ultra Vires. CIVIL LIABILITY. 136. A municipal corporation may be liable to a civil action for a wrong committed or permitted by it causing private injury. As we have heretofore seen,* a municipal corporation may be imposed upon a community against its wish, and its func- tions prescribed without the consent of the citizens, and thus made an agency of the state for governmental purposes. It is also obvious that the state is not subject to prosecution, nor to action, save by its own consent ; and it has been thought anom- alous by some that a compulsory agent of the state should be liable either civilly or criminally for trespass or negligence. But we have also seen ^ that a municipality is usually created at the request of the community, and that it exists not onl}- for the public welfare, but also for the benefit of its citizens ; that it is in certain aspects a distinct person, and a member of society, and as such is subject to the general law which is ''prescribed by the supreme power in the state," ^ and which 1 Ante, § 40. 2 Ante, §§ 41 and 50. s 1 b1. Comm. p. 44. § 136) CIVIL LIABILITY. 405 any citizen or person violates at peril. A municipality, being not only a public agency, but also a quasi private individual, is therefore subject to the law; and it is too well settled by re- peated adjudication, both in England and America, to admit of question that a municipality for its wrong to the public may be prosecuted, and for its torts against individuals may be sued in civil action for damages like a private corporation.* A municipality, being created by the state and endowed with certain functions for the public welfare, must perform those functions, or suffer indictment for its nonfeasance or mis- feasance.^ Also, being a member of society, and empowered not only to exercise governmental functions, but also to own property and to deal with other corporations and with natural persons upon terms of equality, the municipality must not only respect the law in its contracts, but also in its noncontract re- lations with others; and where any one suffers an injury by the neglect of the municipality to discharge any absolute duty such person has an action against the municipality for the re- dress of the injury.' i Rex V. Oxfordshire, 16 East 223; State v. Portland, 74 Me. 268, 43 Am. Rep. 586; State v. Murfreesboro, 11 Humph. (Tenn.) 217; Commouwealth v. Newburyport, 103 Mass. 129; Barnes v. Dist. of Columbia. 91 U. S. 540, 23 L. Ed. 440; Worley v. Columbia, 88 Mo. 106; Curran v. Boston, 151 Mass. 505, 24 N. E. 781, 8 L. R. A. 243, 21 Am. St. Rep. 465; State v. Shelby vllle, 4 Sneed (Tenn.) 176; Lloyd v. New York, 5 N. Y, 369, 55 Am. Dec. 347. But see State V. Burlington, 36 Vt. 521. 5 Commonwealth v. Bredin, 165 Pa. 224, 30 Atl. 921; Common- wealth V. Lansford, 14 Pa. Co. Ct. R. 376; State v. Shelby ville. supra; Commonwealth v. Hopkinsville, 7 B. Mon. (Ky.) 38. « Kleopfert v. Minneapolis (Minn.) 95 N. W. 908; Rowland v. Kalaniazoo, 49 Mich. 553, 14 X. W. 494; Pennoyer v. Saginaw, 8 Mich. 534; Worden v. New Bedford, 131 Mass. 23, 41 Am. Rep. 185; Moulton v. Scarborough, 71 Me. 267, 36 Am. Rep. 308. In Nebraska the liability of a city for injuries caused is exclusively statutory. Goddard v. Lincoln, 96 N. W. 273. 406 TORTS. (Ch. 16 GOVERNMENTAI. DUTY— NO ACTION FOR FAIIiURE IN. 137. No action lies at common laxr against a municipal cor- poration for an injury resulting from the performance or nonperformance by it of a purely governmental duty. The double nature of the municipal corporation, seen in its purely public and governmental functions on the one side and in its municipal and quasi private functions on the other, calls for the application of different rules of law as to the effect of its corporate acts upon natural persons and other corporations. In its purely governmental character a municipality closely resembles a quasi corporation, and in this aspect the law for it is practically the same as for a quasi corporation as to the rea- son and extent of its Exemption from liability for injuries suf- fered by others. '^ It is performing a public function — dischar- ging a governmental duty of the state for the public welfare ; and out of this no action can arise unless given by statute/ The line separating governmental from municipal duties can- not always be plainly seen; but there are certain functions performed by municipal corporations which are confessedly public, out of which no private action can arise, not only be- cause the state is sovereign and the municipality its agent, ^ 7 Rose V. Toledo, 24 Ohio Cir. Ct. R. 540; Bailey v. Mayor, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Welsh v. Rutland, 56 Vt. 228. 48 Am. Rep. 762; City of Helena v. Thompson, 29 Ark. 569; City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705. 8 Hickox V. Cleveland, 8 Ohio, 543, 32 Am. Dec. 730; Stewart v. New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218; City of Richmond V. Long's Adm'rs, 17 Grat. (Va.) 375, 94 Am. Dec. 461; Prather v. Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585; Danaher v. Brooklyn, 51 Hun, 563, 4 N. Y. Supp. 312; Moffitt v. Asheville, 103 N. C. 237, 9 S. E. 695, 14 Am. St. Rep. 810. » DARGAN V. MOBILE. 31 Ala. 469. 70 Am. Dec. 508 ; Fowle v. Alexandria, 3 Pet. (U. S.) 398, 7 L. Ed. 719 ; City of Anderson v. East, 117 Ind. 126, 19 N. E. 726, 2 L. R. A. 712, 10 Am. St. Rep. 35; Forsyth V. Atlanta, 45 Ga. 152, 12 Am. Rep. 576; Harmau v. St. Louis, 137 I § 137) GOVERNMENTAL DUTY. 407 but also for the reason that the constant fear of liability for damages while acting for the public welfare would prevent proper performance of these public functions by the corpora- tion. Public Functions. Prominent among these governmental functions are: (1) The preservation of the public peace; (2) the preservation of the pubhc health ; (3) punishment of criminals ; (4) preventing destruction by fire ; (5) furnishing public education ; (6) pro- viding for the poor. Accordingly, it is held that a city is not liable for negligence or misconduct of its police officers,^" for they are state officers, rather than municipal ; and that it is not Mo. 494, 38 S. W. 1102; Beers v. Arkansas, 20 How. (U. S.) 527, 15 L. Ed. 991. 10 City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; Betham V. Pliihidelpbia, 196 Pa. 302, 46 Atl. 448; Gray v. Griffin, 111 Ga. 361, 36 S. E. 792, 51 L. R. A. 131; Lahner v. Williams, 112 Iowa, 428, 84 N. W. 507; Calwell v. Boone, 51 Iowa, 687, 2 N. W. 614, 33 Am. Rep. 154; Easterly v. Irwin, 99 Iowa, 694, 68 N. W. 919; McAuliffe V. Victor, 15 Colo. 337, 62 Pac. 231; Browns Adm'r v. Guyandotte, 34 W. Va. 299, 12 S. B. 707, 11 L. R. A. 121; La Clef v. Concordia, 41 Kan. 323, 21 Pac. 272, 13 Am. St. Rep. 285; Moffltt v. Asheville, 103 N. C. 237, 9 S. E. 695, 14 Am. St. Rep. 810; Corning v. Saginaw, 116 Mich. 74, 74 N. W. 307, 40 L. R. A. 526; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; White v. Board, 129 Ind. 396, 28 N. E. 846; Davis v. Knoxville, 90 Tenn. 599, 18 S. W. 254; Perkins v. New Haven, 53 Conn. 214, 1 Atl. 825; Taylor v. Owensboro, 98 Ky. 271, 32 S. W. 948, 56 Am. St. Rep. 361; Pollock's Adm'r v. Louis- ville, 13 Bush (Ky.) 221, 26 Am. Rep. 260; Culver v. Streator, 130 111. 238, 22 N. E. 810, 6 L. R. A. 270; Gullikson v. McDonald, 62 Minn. 278, 64 N. W. 812; McElroy v. Albany, 65 Ga. 387, 38 Am. Rep. 791; Whitfield v. Paris, 84 Tex. 431, 19 S. W. 566, 15 L. R. A. 783, 31 Am. St. Rep. 69; Peck v. Austin, 22 Tex. 261, 73 Am. Dec. 261; Kies v. Erie, 135 Pa. 144, 19 Atl. 942, 20 Am. St. Rep. 867; Twyman's Adm'rs v. Frankfort (Ky.) 78 S. W. 446, 64 L. R. A. 292. Police officers appointed by a city in obedience to a statute are not agents or servants for whose torts the city will be liable under the rule of respondeat superior, Woodhull v. New York, 150 N. Y, 450, 44 N. E. 1038. I 408 TORTS. (Ch. 16 liable for failure to disperse a mob or suppress a riot.^* Nor is a city liable for the misconduct of its health department, or any of its health officers/^ since sanitation is a public, rather than a municipal, duty. And since the maintenance of public peace and enforcement of good order may require the punish- ment of evildoers by a municipality, it is the general doctrine that no action will lie against the corporation for the negligence or misconduct of its ofiicers in the confinement or punishment of criminals; ^^ but it has been intimated in North Carolina,^* 11 Gianfortone v. New Orleans (C. C.) 61 Fed. 64. 24 L. R. A. oy'2; Hart V. Bridgeport, 13 Blatchf. (U. S.) 289, Fed. Gas. No. 6,149: Prather v. Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585; West- ern College of Homeopathic Medicine v. Gleveland, 12 Ohio St. 375. But a state may constitutionally compel its counties and cities to Indemnify against loss of property arising from mobs and riots. Pennsylvania Go. v. Gbicago (G. C.) 81 Fed. 317; Spring Val. Goal Co. V. Spring Valley, 65 111. App. 571; Adams v. Salina, 58 Kan. 246, 48 Pac. 918; City of Chicago v, Pennsylvania Co., 119 Fed. 497, 57 C. C. A. 509; Underhill v. Manchester, 45 N. H. 214; Louisiana V. New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936. 12 City of Dalton v. Wilson, 118 Ga. 100, 44 S. B. 830; Summers V. Board, 103 Ind. 262, 2 N. E. 725, 53 Am. Rep. 512; Love v. At- lanta, 95 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64; Ogg v. Lansing, 85 Iowa, 495, 14 Am. Rep. 499; Bryant v. St. Paul, 33 Minn. 289, 23 N. W. 220, 53 Am. Rep. 31; Brown v. Vinalhaven, 65 Me. 402, 20 Am. Rep. 709; Whitfield v. Paris, 84 Tex. 431, 19 S. W. 566, 15 L. R. A. 783, 31 Am. St. Rep. 69. A city is not liable for the trespass of its mayor, police officers, and city physician in quarantining and detaining a body of yellow fever suspects in a hotel. City of San Antonio v. White (Tex. Civ. App.) 57 S. W. 858. A municipal corporation is not liable for the value of property destroyed by mistake on the order of its health oflicers. Lowe v. Conroy (Wis.) 97 N. W. 942. 13 La Clef V. Concordia, supra; Royce v. Salt Lake City, 15 Utah, 401. 49 Pac. 290; Nisbet v. Atlanta, 97 Ga. 650, 25 S. E. 173; Currau V. Boston, 151 Mass. 505, 24 N. E. 781, 8 L. R. A. 243, 21 Am. St. Rep. 465; Gullikson v. McDonald, supra. A city, in constructing and maintaining a workhouse, acts in a I* Shields v. Durham, 118 N. C. 450, 24 S. E. 794, 36 L. R. A. 293; Goley v. Statesville. 121 N. C. 301, 28 S. E. 482. § 137) GOVERNMENTAL DUTY. 409 and held in Virginia,^" that a city or town may be liable for failure to keep its jail or calaboose in proper condition and under the care of competent servants. Though it is not so plainly seen to be for the public welfare, rather than for the benefit of the citizens of- the municipality, that fires should be extinguished and private property saved, yet the courts agree that it is a governmental duty to stop conflagrations, and that a municipality cannot be held liable for either the negligence or misconduct of its fire department, or any member thereof; ^^ also that a city cannot be held liable for the failure to provide adequate fire apparatus or sufficient water to extinguish fire,^' governmental, not a municipal, capacity, and is not, therefore, liable for injuries received by a prisoner through the wrongful acts of the workhouse overseer. Rose v. Toledo, 24 Ohio Cir. Ct. R. 540. 16 Edwards v. Pocahontas (C. C.) 47 Fed. 268. In erecting and maintaining a city prison the municipality is ex ercising a purely governmental function. Gray v. Griffin, 111 Ga. 361, 36 S. E. 792, 51 L. R. A. 131. Contra, Blake v. Pontiac, 49 III. App. 543. See, also, Snider v. St. Paul, 51 Minn. 46G, 53 N. W. 763, 18 L. R. A. 151; Eddy v. Ellicottville, 35 App. Div. 256, 54 N. Y. Supp. 801. 16 Wheeler v. Cincinnati, 19 Ohio St. 19, 2 Am. Rep. 368; Fisher V. Boston, 104 Mass. 87, 6 Am. Rep. 196; Jewett v. New Haven, 38 Conn. 368, 9 Am. Rep. 382; Grant v. Erie, 69 Pa. 420, 8 Am. Rep. 272; Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Heller V, Sedalia, 53 Mo. 1.59, 14 Am. Rep. 444; Greenwood v. Louisville, 13 Bush (Ky.) 226. 26 Am. Rep. 263; Robinson v. Eviinsville, 87 Ind. 334, 44 Am. Rep. 770; Wilcox v. Chicago, 107 111. 337, 47 Am. Rep. 434; Welsh v. Rutland, 56 Vt. 22S, 48 Am. liep. 762; Burrill v. Augusta, 78 Me. 118, 3 Atl. 177, 57 Am. Rep. 788; Grube v. St. Paul, 34 Minn. 402, 26 N. W. 228. While driving along the street a horse was frightened by an em- ploye of the fire department and ran away. The city was sued to recover damages, but it was held that there could be no re- covery, as the employes of the fire department were public officers engaged in a public duty. Saunders v. Ft. Madison, 111 Iowa, 102, 82 X. \\'. 428; Lawson v. Seattle, 6 Wash. 184, 33 Pac. 347; Dodge v. Granger, 17 R. I. 664, 24 Atl. 100, 15 L. R. A. 781, 33 Am. St. Rep. 901. IT Mendel v. Wheeling, 28 W. Va. 233, 57 Am. Rep. 665; Spring- field Fire & Marine Ins. Co. v. Keeseville, 148 X. Y. 46, 42 N. E 410 TORTS. (Ch. 16 though a city has been held liable to an engineer for its negli- gence in putting him to work upon a defective engine.^* So, also, it is held that no action will lie against a municipality for injury resulting from the negligence or misconduct of any of its agents or employes in connection with its public school buildings; ^® but, notwithstanding the numerous adjudications to this effect, it is plausibly contended that where a city with sufficient funds is charged with proper care of its school prop- erty it ought to be liable for failure to provide a safe place for teachers and pupils.^** Whenever a city is charged with the duty of caring for the poor, no private action can be main- tained against it for misfeasance or nonfeasance in the per- formance of this function ; '* it is a public charity, govern- mental in its character, and no liability against the city will arise out of this relation.^^ It has repeatedly been adjudged 405, 30 L. R. A. 660, 51 Am. St. Eep. 667; Tainter v. Worcester, 123 Mass. 311, 25 Am. Rep. 90; Akin v. Akin, 78 Ga. 24, 1 S. E. 267; Heller v. Sedalia, 53 Mo. 159, 14 Am. Rep. 444; Wheeler v. Cincinnati, supra; Vanhorn v. Des Moines, 63 Iowa, 447, 19 N. W. 293, 50 Am. Rep. 750; Grant v. Erie, supra; Foster v. Water Co., 3 Lea (Tenn.) 42; Witheril v. Moslier, 9 Hun (N. Y.) 412. The power resting In a municipality to provide for a supply of water is, in its nature, legislative and governmental, and, if not exercised, and in consequence loss results to property owners by tires, the municipality is not liable for damages. Planters' Oil Mill V. Light Co., 52 La. Ann. 1243, 27 South. 684. See Springfield Fire & Marine Ins. Co. v. Keeseville, 6 Misc. Rep. 233, 26 N. Y. Supp. 1094. But see Springfield Fire & Marine Ins. Co. v. Keese- ville, 80 Hun, 162, 29 N. Y. Supp. 1130. 18 City of Lafayette v. Allen, 81 Ind. 166. i» HILL V. BOSTON, 122 Mass. 344, 23 Am. Rep. 332; Howard v. Worcester, 153 Mass. 426, 27 N. E. 11, 12 L. R. A. 160, 25 Am. St. Rep. 651. Contra, McCaughey v. Tripp, 12 R. I. 449. 2 Briegel v. Philadelphia, 135 Pa. 451, 19 Atl. 1038, 20 Am. St. Rep. 885. 21 Neff V. Wellesley, 148 Mass. 487, 20 N. E. Ill, 2 L. R. A. 500; Maxmilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 409; Curran v. Boston, 151 Mass. 505, 24 N. E. 781, 8 L. R. A. 243, 21 Am. St. Rep. 4C5. 22 Maxmilian v. New York, supra; Benton v. Boston City Hospi- § 137) GOVERNMENTAL DUTY. 411 also that no private action will lie against the city either for failure to enforce its own laws and ordinances,*' or from its action or nonaction in any other matter resting in the discre- tion of the corporation as a governmental agency ; ^* and so damages have been refused for injuries resulting from forbid- den fireworks,^"* from a public nuisance,*® for failure to build sewers or drains,*^ from the adoption of a defective plan of tal, 140 Mass. 13, 1 N. E. 836, 54 Am. Rep. 436; Carrington v. St. Louis, 89 Mo. 208, 1 S. W. 240, 58 Am. Rep. 108; City of Richmond V. Long's Adm'rs, 17 Grat. (Va.) 375, 94 Am. Dec. 461. 2 3 Davis V. Montgomery, 51 Ala. 139, 23 Am. Rep. 545; Miller & Meyers v. City of Newport News, 101 Va. 432, 44 S. E. 712; Wheeler V. Plymouth, 116 Ind. 158, 18 N. E. 532, 9 Am. St. Rep. 837; Moran V. Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Harman v. St. Louis, 137 Mo. 494, 38 S. W. 1102; Levy V. New York, 1 Sandf. (N. Y.) 465; Fowle v, Alexandria, 3 Pet. 'U. S.) 398, 7 L. Ed. 719; T-rammell v. Russellville, 34 Ark. 105, 36 Am. Rep. 1; Robinson v. Greenville, 42 Ohio St. 625, 51 Am. Rep. S57; Ball v. Woodbine, 61 Iowa, 83. 15 N. W. 846, 47 Am. Rep. 805. 24 Burford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105; Mills v. Brooklyn, 32 N. Y. 489; Smith v. Selinsgrove, 199 Pa. 615. 49 Atl. 213. 2 5 McDade v. Chester, 117 Pa. 414, 12 Atl. 421, 2 Am. St. Rep. 681. A city is not liable for injuries caused by a discharge of fireworks because the city authorities suspended, for the day of the accident, an ordinance forbidding the discharge of fireworks. Fifield v. Phoe- nix (Ariz.) 36 Pac. 910, 24 L. R. A. 430. But see Speir v. Brooklyn, 139 N. Y. 6, 34 N. E. 727, 21 L. R. A. 641, 36 Am. St. Rep. 664, where the city was held liable. See, also, Landau v. New York, 90 App. Div. 50, 85 N. Y. Supp. 616. 2« McCrowell v. Bristol, 5 Lea (Tenn.) 685; Wakefield v. Newell. 12 R. I. 75, 34 Am. Rep. 598. A city Is not liable for permitting a nuisance to exist on private property within its limits. Board of Couucilmen of Frankfort v. Commonwealth, 25 Ky. Law Rep. 311, 75 S. W. 217. See City of Dalton V. Wilson, 118 Ga. 100, 44 S. E. 830; Wood v. Hinton, 47 W. Va. 645, 35 S. E. 824; Hill v. New York, 139 N. Y. 495, 34 N. E. 1090; Butz V. Cavanaugh, 137 Mo. 503, 38 S. W. 1104, 59 Am. St. Rep. 504. 27 Horton v. Nashville, 4 Lea (Tenn.) 47, 40 Am. Rep. 1; Wake- field V. Newell, supra. 412 TORTS. (Ch. 16 sewerage," and from doing or failing to do any act not min- isterial, but legislative or judicial, in its character."^ This ex- emption from liability is based, like the former one, upon the idea that the decision of this question is the performance of a governmental funciion. Statutory Liability. Action may be given by statute for injuries resulting from any of the foregoing causes, and for some of them the right exists at present in some of the states. The measure anc' extent of this right can be determined only by consulting the state statutes. But exemption from private action does not imply exemption from public prosecution, as municipal cor- porations are generally regarded as indictable for misfeasance and nonfeasance of public functions obviously enjoined for the public welfare,^" as we shall see hereafter. MUNICIPAIi DUTY— LIABILITY FOR FAILURE IN. 138. A mnnicipality, in the exercise of its purely municipal functions, is subject to the same rules of liability for torts as a private corporation. It is in the field of torts that the dual nature of the munici- pal corporation becomes most conspicuous. In one aspect, as we have seen in the last section, the municipality confessedly occupies the attitude of a sovereign, and enjoys sovereign ex- 2s Child V. Boston, 4 Allen (Mass.) 41, 81 Am. Dec. 680; Johnston V. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923, 30 L. Ed. 75; Mills v. Brooklyn, .32 N. Y. 489. 2 9 City of Detroit v. Beckman, 34 Mich. 125, 22 Am. Rep. 507: Terry v. Richmond, 94 Va. 537, 27 S. E. 429, 38 L. R. A. 834; Stevens V. Muskegon, 111 IMich. 72, 69 X. W. 227, 36 L. R. A. 777. 30 1 McClain. Cr. Law, § 183 ; McCrowell v. Bristol, supra, note 26 ; People v. Albany, 11 Wend. (N. Y.) 5.39, 27 Am. Dec. 95 ; Town of Chattanooga v. State, 5 Sneed (Tenn.) 578 ; State v. Murfreesboro, 11 Humph. (Tenn.) 217: EASTMAN v. MEKEDITH. 36 N. H. 284, 72 Am. Dec. 302 ; Brayton v. Fall River, 113 Mass. 218, 18 Am. Rep. 470. § 138) MUNICIPAL DUTY. 413 emption from liability for injuries resulting from its acts and omissions. The courts also concur in deciding that in its other aspect as a corporation exercising solely municipal func- tions it is subject to the same rules of liability for torts as a private corporation.^^ These rules are thus stated by Mr. Clark : "A private corporation is liable for the torts of its servants and agents committed in the course of their employ- ment to the same extent as a natural person would be. An it may be liable for wrongs involving a mental element — as malicious wrongs, frauds, etc. ; but it cannot commit a tort like slander, which, from its nature, cannot be committed b> deputy.'' ^^ This rule of liability prevails against a municipal corporation in regard to those duties which arise from the grant of a special power to be used for quasi private pur- poses,^ ^ in the exercise of which the municipality is a cor- porate person, a member of society, and not a governmental agency. Municipal Property and Business. In an early New York case.^* which has been quoted with approval both in England and America, the doctrine of lia- bility of a municipality in regard to its quasi private real prop- erty was thus stated : "The citizen and the municipal body, in respect to their several possessions of real estate, stand upon : footing of equality. Neither is the privileged owner, and each 3 3 BAILEY V. MAYOR, 3 Hill (N. Y.) 531, 38 Am. Dec. 669 ; Meares V. Comirii9.sioners, 31 N. C. 73, 49 Am. Dec. 412; City of Logansport V. Dick, 70 Ind. G5, 36 Am. Rep. 166; WelsLi v. Rutland, 56 Vt. 22b. 48 Am. Rep. 762 ; 2 Thomp. Neg. p. 738. 3 2 Clark, Priv. Corp. § 69. See Rowland v. Maynard, 159 Mass. 434. 34 N. E. 515, 21 L. R. A. 500, 38 Am. St. Rep. 445. 3 3 Hunt V. Boston, 1S3 Mass. 303, 67 N. E. 244; Wood, Mast. & Serv. § 463. See, also, BAILEY v. MAYOR, supra; Baumgard v. Mayor. 9 La. 119. 29 Am. Dec. 437 ; Nevins v. Peoria, 41 111. 502, 89 Am. Dec. 392; Hunt v. Boonville, 65 Mo. 620, 27 Am. Rep. 299; Thayer v. Boston, 19 Pick. (Mass.) 511, 31 Am. Dec. 157; Mitchell v. Rockland, 41 Me. 363. 66 Am. Dec. 252. 34 BAILEY V. MAYOR, supra. 414 TOKTS. (Ch. 16 must fulfill the same duties in respect to the other." This rule has been applied to a poor farm *" kept by a municipality, and also to a city cemetery •• yielding profit to the municipality. The same rule has also been applied to a municipality owning or controlling wharves, docks, and piers." This rule applies also where the city supplies water " or light " for compensa- tion, and so where it maintains a public market.*" In a lead- ing New York case ** Chief Justice Nelson, speaking of the municipal power to construct and maintain waterworks for municipal use, declared: "If the grant is for the purpose of private advantage and emolument, though the public may de- rive a common benefit therefrom, the corporation quoad he is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom 30 Moulton V. Scarborough, 71 Me. 2G7, 36 Am. Rep. 308. But see Maxmilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468; Neff v. Wellesley, 148 Mass. 487, 20 N. E. Ill, 2 L. R. A. 500. 3 6 City of Toledo v, Coue, 41 Ohio St. 149. 3 7 Seaman v. New York, 80 N. Y. 239, 36 Am. Rep. 612; City of Pittsburgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65; City of Jeifersonville V. Ferry Co., 27 Ind. 100, 89 Am. Dec. 495; City of Petersburg v. Applegarth's Adm'r, 28 Grat. (Va.) 321, 26 Am. Rep. 357; City of Memphis v. Kimbrough, 12 Heisk. (Tenn.) 133; Manhattan Trausp. Co. V. Mayor (D. C.) 37 Fed. 160; Smith v. Havemeyer (C. C.) 3(! Fed. 927; Barber v. Abendroth, 102 N. Y. 406, 7 I^. E. 417. 55 Am. Rep. 821; Augusta City Council v. Hudson, 88 Ga. 599, 15 S. E. 678 ; Id., 94 Ga. 135, 21 S. E. 289 (as to toll bridge) ; Whitfield v. Car ronton, 50 Mo. App. 98 ; The Giovanni v. Philadelphia (D. C.) 59 Fed. 303 (tug boat). 3 8 City of Chicago v. Selz, Schwab & Co., 202 111. 545, 67 N. E. 386; City Council of Augusta v. Lombard, 99 Ga. 282, 25 S. E. 772; Whitfield V. Carrollton, 50 Mo. App. 98 ; BAILEY v. MAYOR, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Stock v. Boston, 149 Mass. 410, 21 N. E. 871, 14 Am. St. Rep. 430; Aldrich v. Tripp, 11 R. I. 141, 23 Am. Rep. 434. 39 Western Sav. Fund Soc. v. Philadelphia, 31 Pa. 175, 72 Am. Dec. 730; Bodge v. Philadelphia, 167 Pa. 492, 31 Atl. 72S. •to City of Savannah v. Collens, 38 Ga. 334, 95 Am. Dec. 398; Town of SuQ'olk T. Parker, 79 Va. 660, 52 Am. Rep. 640. 41 BAILEY V. MAYOR, 3 Hill, 531, 38 Am. Dec. 669. ^ 139) PERFOBMANCE OF aOVEKNMBMTAL DOTY. 41S the like special franchise had been conferred." And this rule seems to apply to any business undertaken by a municipality under its charter powers.*^ It is a corporation for profit, and justly subject to the same rules as private corporation. MUNICIPAL PERFORMANCE OF GOVERNMENTAIi DUTY. 139. A mnnicipality, wlien charged in its corporate character •with the performance of a municipal function in re- gard to governmental afPairs, is, by the preponderance of judicial opinion, civilly liable for injuries resulting from misfeasance or nonfeasance of such municipal duty. Here we enter the disputed boundary of municipal torts. In the field of solely governmental duties the law is plain and well recognized. In the performance of strictly governmental functions the municipality cannot commit a tort. Equally well settled is it that in matters of strictly municipal concern a mu- nicipality is subject to the same law as a private corporation. But in the border land between these two open lields, where the dual nature of a municipality appears in both phases, un- numbered contests have occurred over the legal effect of mu- nicipal nonfeasance, misfeasance, and even malfeasance, which have been variously decided in America ; so that it may well be said that the law on this subject is unsettled; the boundary line of liability is not established.*^ The prolific source of con- tention in this border land has been the municipal control of streets and sewers. The public highways are the special care of the state, inside as well as outside our cities and towns. They are for public use and public convenience, not for local or municipal benefit. Esj^ecially is this true of the great thor- oughfares of a city or town. Some courts have classified 42 2 Thomp. Xog. p. 7.38. ■43 2 Dill. Mun. Corp. S§ 001-971; City of Omaha v. Croft, fiO Neb. .59, 82 N. W. 120; McGiuuis v. Inhabitants of Medway, 17G Mass. 67, 57 N. E. 21U. 416 TORTS. (Ch. IC sewers with streets,** though it is obvious that the municipal interest and benefit far exceeds that of the public in the sewers and drains of the city. Both streets and sewers, however, are usually placed under the special care and control of the munici- pality. The state delegates this public function to the local corporation, and the bone of contention has been whether the municipality, in caring for streets and sewers, is performing r governmental or municipal function ; or, practically stated, the question is whether it may become liable for tort in regard to these governmental affairs.*" Liability for Repair of Streets. The prevailing view of the courts in America is that for a failure to discharge the duty to keep streets in repair there is an implied common-law liability for resulting injury resting upon evei-y chartered municipality.*® After long contention in the federal courts this doctrine was at last authoritativeh' adopted by the Supreme Court of the United States in the lead- ing case of Barnes v. District of Columbia ; *^ and this view is also maintained in the states of Alabama,** Colorado,*® the Dakotas,^** Delaware," Florida,^^ Georgia,"*^ Illinois,"* In- 44 Whipple V. Fair Haven, 63 Vt. 221, 21 Atl. 533; Asliley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552; Seifert v. Brooklyn, 101 N. Y. 136, 4 N. E. 321, 54 Am. Rep. 664; Rowe v. Portsmouth, 56 X. H. 291, 22 Am. Rep. 4G4. 4 5 District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472. See Abendroth v. Greenwich, 29 Conn. 356. 40 2 Dill. Mun. Corp. §§ 998, 1017, 1018, 1022-1026. 4 7 91 U. S. 540, 23 L. Ed. 440. 4s Campbell's Adm'x v. Montgomery, 53 Ala. 527. 25 Am. Rep. 656. 4 3 City of Denver v. Dean, 10 Colo. 375, 16 Pac. 30, 3 Am. St. Rep. 594. 5 Larson v. Grand Forks, 3 Dak. 307, 19 N. W. 414. 51 Anderson v. Wilmington, 8 Houst. (Del.) 516, 19 Atl. 509. 52 City of Tallahassee v. Fortune, 3 Fla. 19, 52 Am. Dec. 358. 63 Parker v. Macon, 39 Ga. 725, 99 Am. Dec. 486. 64 City of Chicago v. Keefe, 114 111. 222, 2 N. E. 267, 55 Am. Rep. S60. % § 139) PERFORMANCE OF GOVERNMENTAL DUTY. 417 diana,^'* lowa,^* Kansas,^^ Kentucky,^' Louisiana/^ Mary- land/" Montana,*'^ Minnesota, ^^ Mississippi,*^^ Missouri,^* Nebraska,*'^ Nevada,^® North Carolina,**^ Ohio,^^ Oregon,*^ Pennsylvania, '° Tennessee,^ ^ Texas,'^- Utah,'^^ Virginia,^* Washington,'^ and West Virginia.'^® Under the lead of Mas- sachusetts, where this subject has been often and ably consid- ered,^^ the following states have adopted the contrary view: Arkansas, ■^^ California,'^ Connecticut,^" Maine,^^ Michigan, ^- 5 5 City of Goshen v. England, 119 Ind. 3G8, 21 N. E. 977, 5 L. R. A. 253. 56 Beazan v. Mason City, 58 Iowa, 233, 12 N. W. 279. 57 Kansas City v. Bermingham, 45 Kan.' 212, 25 Pac. 569. 58 Greenwood v. Louisville, 13 Bush (Ky.) 220, 26 Am. Rep. 263. 5 9 Cline V. Railroad Co., 41 La. Ann. 1031, 6 South. 851. 60 City of Baltimore v. Marriott, 9 Md. 160. 61 Sullivan v. Helena, 10 Mont. 134, 25 Pac. 94. 6 2 Welter v. St Paul, 40 Minn. 460, 42 N. W. 392, 12 Am. St. Rep. 752. 6 3 Whitfield V. Meridian, 66 Miss. 570, 6 South. 244, 4 L. R. A. 834. 14 Am. St. Rep. 596. 64 Haniford v. Kansas City, 103 Mo. 172, 15 S. W. 753. 6 5 City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41. 6 6 McDonough v. Virginia City, 6 Nev. 90. 67 Meares v. Wilmington, 31 N. C. 73, 49 Am. Dec. 412. 6 8 Village of Shelby v. Clagett, 46 Ohio St. 549, 20 N. E. 407, 5 L, R. A. 606. 60 Farquar v. Roseburg, 18 Or. 271, 22 Pac. 1103, 17 Am. St. Rep. 732. 7 Borough of Brookville v. Arthurs, 130 Pa. 501, IS Atl. 1076. 71 City of Knoxville v. Bell, 12 Lea, 157. 72 City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517. 7 3 Levy V. Salt Lake City, 3 Utah, 63, 1 Pac. 160. 74 McCouH V. Manchester, 85 Va. 579. 8 S. E. 379, 2 L. R. A. 691 : Shearer v. Town of Buckley, 31 Wash. 370, 72 Pac. 76. 7 5 Hutchinson v. Olympia, 2 Wash. T. 314, 5 Pac. 606. 7 Moore v. Huntington, 31 W, Va. 842, 8 S. E. 512. 7 7 Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63; Hill v. Boston. 122 ]\rass. 344, 23 Am. Dec. 332. 7 8 Ft. Smith v. York, 52 Ark. 85, 12 S. W. 157. 7 9 Arnold v. San .Jose, 81 Cal. 618, 22 Pac. 877. 80 Beardsley v. Hartford, 50 Conn. 529, 47 Am. Kep. 677. 81 Aldrich v. Gorham, 77 Me. 287. 82 City of Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450. But Ing.Corp. — 27 418 TORTS. (Ch. 16 New Hampshire,'^ New Jersey,®* Rhode Island,®'' South Caro- lina,®® Vermont,®'^ and Wisconsin.®® The Supreme Court of the United States recognizes its duty to follow the decisions of the highest court of each state in regard to municipal liability for tort therein.®^ REASONABLE CARE OF STREETS. 140. Tlie common lavir requires every municipal corporation to exercise reasonable care to make and keep its streets safe for all ordinary uses for T^kick tkey are opened to tke public. A municipality is not an insurer of public safety on its streets. It does not assume to care for and protect the public using its streets under all conditions and emergencies. Dan- gers may suddenly appear in the streets, of which the city may have no notice. Exigencies may arise with which it is unable to cope, from which the public may suffer injury, but for which the municipality is not liable. It owes the public only the duty of reasonable diligence to keep its streets in such condition that the public, by exercising like diligence, may use them for all lawful purposes with reasonable security. A failure to per- form this duty will render a municipality liable for the damage occasioned thereby.®" there is in Michigan the duty upon the city to keep its streets in a reasonably safe condition for travel. Finch v. Bangor (Mich.) 94 N. W. 738. 83 Sweeney v. Newport, 65 N. H. S6, 18 Atl. 86. 84 Wild V. Paterson, 47 N. J. Law, 406, 1 Atl. 490. 85 Taylor v. Peckham, 8 R. I. 849, 91 Am. Dec. 235, 5 Am. Rep. .-.78. 80 Young V. Charleston, 20 S. C. 116, 47 Am. Rep. 827. ,^ 8 7 Welsh V. Rutland, 56 Vt. 228, 48 Am. Rep. 762. ^ 88 Cairncross v. Pewaukee, 78 Wis. 66, 47 N. W. 13, 10 L. R. A. 473. 89 City of Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012, 34 I/. Ed. 260, and cases cited in notes 47-76, inclusive, supra. 80 City of Denver v. Baldasari, 15 Colo. App. 157, 61 Pac. 190; § 140) REASONABLE CARE OF STREETS. 419 Defenses. For an injury occurring to any person from the apparent neglect of the municipality to keep its streets in repair, two defenses are open, which are generally recognized as sufficient (1) That the city had no notice, actual or implied, of the exist- ing defect. The duty to repair is one of reasonable diligence. Liability cannot be incurred in such case before duty begins ; and duty does not precede notice. But actual notice is not re- quired. ^^ Having the care of the streets, the municipality Weightman v. Washington, 1 Black (U. S.) 39, 17 L. Ed. 52; City of Joliet V. Verley, 35 111. 58, 85 Am. Dec. 342; Peake v. Superior, 106 Wis. 403, 82 N. W, 306; City of Denver v. Moewes, 15 Colo. App. 28, 60 Pae. 986; Same v. Dunsmore, 7 Colo. 329, 3 Pac. 705; City of Boulder v. Niles, 9 Colo. 418, 12 Pac. 632; City of Denver v. Aaron, 6 Colo. App. 234, 40 Pac. 587; Turner v. Newburgh, 109 N. Y. 301, 16 N. E. 344, 4 Am. St. Eep. 453. Wliile a municipality may authorize erections for public utilities, such as hydrants, in its streets, it still owes to the public the duty to keep its streets in a reasonably safe condition for travelers by day and night; but it is not an insurer of the safety of those using its streets. Burnes v. St. Joseph, 91 Mo. App. 489. It is the duty of the city to keep its streets in reasonably safe condition for all those who rightfully use them, or have occasion to pass over them for the purpose of business, convenience, or pleasure. Kansas City v. Orr, 62 Kan. 61, 61 Pac. 397, 50 L. R. A. 783. In the absence of a positive requirement of law that a city keep its streets in a safe or reasonably safe condition, it is bound only to exercise ordinary care to keep them in a reasonably safe condi- tion. City of Dallas v. Moore (Tex. Civ. App.) 74 S. W. 95; Finch V. Bangor (Mich.) 94 N. W. 738; Aucoin v. New Orleans, 105 La. 271, 29 South. 502. And a city cannot claim that its streets are so far public as to free it from responsibility. Twist v. Rochester, 165 N. y. 619, 59 N. E. 1131. »i A city is not liable for injm'ies caused by defective streets in absence of actual notice of such defects, or unless they have existed so long that notice should be imputed to it. Bell v. Henderson, 24 Ky. Law Rep. 2434, 74 S. W. 206; Downs v. Commissioners, 2 Pen- newill (Del.) 132, 45 Atl. 717. See Jones v. Clinton, 100 Iowa, 333, 69 N. W. 418; Snyder v. Albion, 113 Mich. 275, 71 N, W. 475; Mayor, etc., of City of Montezuma v. Wilson, 82 Ga. 206, 9 S. E. 17, 14 420 roRTS. (Ch. IG must use reasonable diligence to know their condition, such as an ordinary man uses in the care of his own property. Notice may, therefore, be implied from the obvious existence of the defect for a sufficient period. What is commonly known by the people in any portion of the city is imputed to the mu nicipality.®^ (2) The lack of any corporate fund and of any power to obtain one applicable to repairs has also been recog- nized as a good defense. Such inability in a municipal corpora- tion is rare and exceptional. Want of funds alone is no de- fense; but lack of power to raise a fund applicable to such purpose was recognized as a just defense to the Men of Am. St Rep. 150; Town of Franklin v. House, 104 Tenn. 1, 55 S. W. 153; Ransom v. Belvidere, 87 111. App. 167; City of Murpliysboro V. O'Riley, 36 111. App. 157; Same v. Baker, 34 111. App. 657. But a city can only be charged with actual notice of a defect by proof that such notice was given to an officer having authority to act, or whose duty it was to report the matter to some one with au- thority. City of Dallas v. Meyers (Tex. Civ. App.) 55 S. W. 742. 82 Milledge v. Kansas City, 100 Mo. App. 490, 74 S. W. 892; Smith V. Sioux City, 119 Iowa, 50, 93 N. W. 81; City of Louisville v. Brew- er's Adm'r, 24 Ky. Law Rep. 1671, 72 S. W. 9; Ban* v. Kansas City. 105 Mo. 550, 16 S. W. 483; Shipley v. Bolivar, 42 Mo. App. 401; McAllister v. Bridgeport, 72 Conn. 733, 46 Atl. 552; McDonald v. Ashland, 78 Wis. 251, 47 N. W. 434: Tice v. Bay City, 84 Mich. 461, 47 N. W. 1062; Bradford v. Anniston, 92 Ala. 349, 8 South. 683, 25 Am. St. Rep. 60; Carstesen v. Stratford, 67 Conn. 428, 35 Atl. 276; Piper v. Spokane, 22 Wash. 147, 60 Pac. 138; Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 South. 424; Jones v. Greens- boro, 124 N. C. 310, 32 S. E. 675; Urtel v. Flint, 122 Mich. 65, 80 N. W. 991; City of Streator v. Chrisman, 182 111. 215, 54 N. E. 997; L'Herault v. Minneapolis, 69 Minn. 261, 72 N. W. 73; Breil v. Buffalo, 144 N. Y. 163, 38 N. E. 977; City of Palestine v. Hassell, 15 Tex. Civ. App. 519, 40 S. W. 147; Poole v. Jackson. 93 Tenn. 62, 23 S. W. 57; Rosevere v. Osceola Mills, 169 Pa. 555, 32 Atl. 548. Where there is abundant time by reason of reasonably frequent examination to discover and remedy a defective street, and a person is injured in consequence of such defect, the municipality will not be relieved from liability for the consequences of its negligence. City of Chicago v. McCabe, 93 111. App. 288. See Corey v. Ann Arbor, 124 Mich. 134, 82 N. W. 804; Buckley v. Kansas City, 15Ci Mo. 16, 56 S. W. 319. I § 140) REASONABLE CARE OF STREETS, 421 Devon,® ^ and has been ever since sustained in English and American courts. It is the chief ground of nonhabiUty of quasi corporations,®* and should have equal force and recog- nition in favor of municipalities not empowered to perform the duty of repair. But there are cases which do not recognize the sufficiency of this defense, and declare it the duty of the corporation to close a dangerous street which it cannot repair.®^ And the courts which recognize inability as a valid defense require the municipality to show that it has exhausted the means at its command to raise funds for the purpose, and given signals of the danger." Reasonable Care, What is. What is reasonable care is a question of fact depending upon the circumstances of each particular case. The degree of repair of a street is a matter of municipal discretion. The standard of repair may well be different in various localities. What is a defect in a fine avenue or great thoroughfare may not be such in an obscure street or alley ; and it has even beer held that what might constitute actionable negligence on the part of a city as to one person may not be actionable as to another,®^ which is equivalent to saying that what would be contributory negligence defeating the action of one person »3 Russell v. Men of Devon, 2 Durn. & E. 667. 91 Ante, § 9, note a.j. 9 5 Elliott, Roads & Sts., pp. 445, 446, 452; Monk v. New Utrecht, 104 N. Y. 552, 11 N. E. 268; Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 South. 243. 8 6 Mayor, etc., of City of Birmingham v. Lewis, supra; Lord v. Mobile (1897) 113 Ala. 360, 21 South. 366; Whitfield v. Meridian, 66 Miss. 570, 6 South. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596; Carney v. Marseilles, 136 111. 401. 20 N. E. 491, 29 Am. St. Rep. 328; Moon v. Ionia, 81 Mich. 635, 46 N. W. 25; City of Erie v. Schwingle, 22 Pa. 384, 60 Am. Dec. 87; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Delger v. St. Paul (C. C.) 14 Fed. 507. See Collett v. New York, 51 App. Div. 394, 64 N. Y. Supp. 693, as to faulty construction and warning. 97 Municipalities are not bound to the same degree of care on an alley as on its streets. Musick v. Latrobe, 184 Pa. 375, 39 Atl. 220; 422 TORTS. (Ch. 16 might not bar the action of another person of weaker sense and power. Here, as in all cases involving what is reasonable, is a broad boundary of uncertainty between the fixed rules of the law. But it has been held that the municipality must use such care as will protect not only the busy traveler and pedestrian, but also the playing child and even the idle loafer.^^ OBSTRUCTIONS. 141. Reasonable care of streets also requires of tlie mnnici- pality tlie removal from them of nnlaxsrful obstruc- tions and tbe signaling of dangerous ones. As we have hitherto seen, the temporary and partial ob- struction of a street may be permitted by the city when nec- essary for building, removing, improving, or commerce;®^ but such work must obviously be performed with dispatch and care, and municipal consent must be obtained for the obstruc- tion. Whenever and wherever it is permitted, it is a municipal duty to give reasonable warning to the public, both day and night, of the presence of danger, to the end that it may be avoided.^"" Hitching posts, electric poles, stepping stones, Gulline v. Lowell, 144 Mass. 491, 11 N. E. 723, 59 Am. Rep. 102; Walker v. Reidsville, 96 N. C. 882, 2 S. E. 74. 98 District of Columbia v. Boswell, 6 App. D. C. 402; City of Denver v. Murray (Colo. App.) 70 Pac. 440 (where tlie city had per- mitted the erection of a derrick, which fell upon a child who was playing around it); City of Waverly v. Keesor, 93 111. App. 649; City of Omaha v. Richards, 49 Neb. 244, 68 N. W. 528 (where the city of Omaha was held liable for the death of a boy who fell through a section of a sidewalk which he was using as a raft on a pond of water which had accumulated over a street and adjacent private property, because of the city's negligence in constructing a storm sewer). See City of Chicago v. Keefe (loafer) 114 111. 222, 2 N. E. 267, 55 Am. Rep. 860; McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668; Hunt v. Salem, 121 Mass. 294; Reed v. Madison, 83 Wis. 171, 53 N. W. 547, 17 L. R. A. 733. 99 Ante, §§ 131, 132. 100 Leonard v. Boston, 183 Mass. 68, 66 N. E. 596; Bauer v. Rochester, 59 Hvm, 616, 12 N. Y. Supp. 418; City of Canton v. Dewey, 71 111, App. 346; Lloyd v. Mayor, 5 N. Y. 369, 55 Am. Dec. § 141) OBSTRUCTIONS. 423 and hydrants are not regarded as unlawful obstructions when placed at the curbstone or margin of the street, so as not to render the way unsafe; ^**^ but such things placed either with or without municipal consent within the portion of the street commonly used either for riding, driving, or walking, and not properly guarded or signaled, will give action against the mu- nicipality to one injured thereby. ^"^ Recoveries against a municipality have also been sustained because of its failure to remove or properly signal as obstructions to the street an ash pile,^"^ motor/"* steam roller,^"^ machinery,^"* a furnace,^"^ 347; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Storrs v. Utica, 17 N. Y. 104, 72 Am. Dec. 437; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; Wilson v. Wheeling, 19 W. Va. 323, 42 Am. Rep. 780. 101 City of Denver v. Sherret, 88 Fed. 226, 31 C. C. A. 499; Wein- stein V. Terre Haute, 147 Ind. 556, 46 N. B. 1004; Ring v. Cohoes, 77 N. Y. 83, 33 Am. Rep. 574; Macomber v. Taunton, 100 Mass. 255. 10 2 Kansas City v. Orr, 62 Kan. 61, 61 Pac. 397, 50 L. R. A. 783; City of Circleville v. Sohn. 59 Ohio St. 285, 52 N. E. 788, 69 Am. St. Rep. 777; City of El Paso v. Dolan (Tex. Civ. App.) 25 S. W. 669 (glass); Hayes v. W>st Bay City, 91 Mich. 418, 51 N. W. 1067; Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 South. 243; Crowther v. Yonkers, 60 Hun, 586, 15 N. Y. Supp. 588; South Omaha v. Cunningham, 31 Neb. 316, 47 N. W. 930: Drake v. Seattle, 30 W^ash. 81, 70 Pac. 231, 94 Am. St. Rep. 844; Powers v. Insurance Co., 91 Mo. App. 55; Arey v. Newton, 148 Mass. 598, 20 N. E. 327, 12 Am. St. Rep. 604; Ring v, Cohoes, supra; King v. Oshkosh, 75 Wis. 517, 44 N. W. 745; City of New York v. Sheffield, 4 Wall. (U. S.) 189, 18 L. Ed. 416. 103 Kane v. Troy, 48 Hun, 619, 1 N. Y. Supp. 536; Ring v. Cohoes, 77 N. Y. 83, 33 Am. Rep. 574. 104 Stanley v. Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep. 216. 105 Hughes V. Fond du Lac, 73 Wis. 380, 41 N. W. 407. See Mulligan v. New Britain, 69 Conn. 96, 36 Atl. 1005. Contra, where a steam roller frightened a horse it was held that the city was not liable. Lane v. Lewiston, 91 Me. 292, 39 Atl. 999. 106 Whitney v. Ticonderoga, 127 N. Y. 40, 27 N. E. 403; Bennett v. Lovell, 12 R. I. 166, 34 Am. Rep. 628. 107 Town of Rushville v. Adams, 107 Ind. 475, 8 N. E. 292, 57 Am. Rep. 124. 424 TORTS. (Ch. 16 a tent,^"" building material, ^"^ a hydrant/^" logs/^^ rocks and stones/ ^^ and also dangerous holes and excavations in or near the street,^ ^' and objects naturally tending to frighten horses ordinarily gentle.^^* 108 Ayer v. Norwich. 39 Conn. 376, 12 Am. Rep. 396. 109 Joslyn V. Detroit, 74 Midi. 459, 42 N. W. 50; Rommeney v. New Yorli, 49 App. Div. 64, G3 N, Y. Supp. 186; Pairgrieve v. Moberly, 39 Mo. App. 31. See McDonald v. Troy, 59 Hun, 618, 13 N. Y. Supp. 385. 110 Adams v. Oshkosh, 71 Wis. 49, 36 N. W. 614. Where no part of the street was appropriated to sidewalks, and vehicles were actually driven on any part of it, the municipality was held liable to a driver who was injured by reason of an unguarded hydrant placed 11 feet from the street line. Burnes v. St. Joseph, 91 Mo. App. 489. See Thunborg v. Pueblo (Colo. App.) 70 Pac 148. 111 Johnson v. Whitefield, 18 Me. 286, 36 Am. Dec. 721; Chase V. Lowell, 151 Mass. 422, 24 N. E. 212. 112 Koch V. Williamsport, 195 Pa. 488, 46 Atl. 67; Patterson v. Austin, 15 Tex. Civ. App. 201, 39 S. W. 976; Hesselbach v. St. Louis, 179 Mo. 505, 78 S. W. 1009. 113 Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 South. 243; Brush v. New York, 59 App. Div. 12, 69 N. Y. Supp. 51; Foy v. Winston, 126 N. C. 381, 35 S. E. 609; City of South Omaha v. Cunningham, 31 Neb. 316, 47 N. W. 930; Drew v. Sutton, 55 Vt. 586, 45 Am. Rep. 644; Hinckley v. Somerset, 145 Mass. 326, 14 N. E. 166. A city must use reasonable care to protect pedestrians from falling into excavations upon private lots and adjacent to the sidewalk. Wiggin V. St. Louis, 135 Mo. 558, 37 S. W. 528. See Oklahoma City V. Meyers, 4 Okl. 686, 46 Pac. 552; Hawley v. Atlantic, 92 Iowa. 172, 60 N. W. 519; Talty v. Same, 92 Iowa, 135, 60 N. W. 516; Brown V. Louisburg, 126 N. C. 701, 36 S. E. 166, 78 Am. St. Rep. 677. 114 City of Weatherford v. Lowery (Tex. Civ. App.) 47 S. W. 34; City of Vandalia v. Huss, 41 111. App. 517; Bowes v. Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365; Bennett v. Fifield, 13 R. I. 139, 43 Am. Rep. 17; Agnew v. Corunna, 55 Mich. 428, 21 N. W. 873, 54 Am. Rep. 383. Where a horse of ordinary gentleness merely shies, so that the driver does not lose control of him, but is Injured by coming in contact with an obstruction in the street, the city is liable. Burnes V. St. Joseph, 91 Mo. App. 489. See Patterson v. Austin, supra; Taylor v. Ballard, 2i Wasl- 191, 64 Pac. 143. § 142) SIDEWALKS. 425 Street Lights. There is said to be no implied duty resting- on a municipality to light its streets; ^^^ but where such duty is imposed by the legislature, or where the city has voluntarily assumed per- formance of this appropriate municipal function, reasonable care must be exercised to keep the street lamps in good order, and properly lighted ; and for failure to do this an action will lie in favor of one receiving special injury therefrom.^ ^^ SIDEWALKS. 142. Sidex^alks under municipal control are objects of tlie same reasonable municipal care as otber parts of tbe street, and an action v^ill lie for injuries resulting from nonfeasance or misfeasance of tbis municipal duty. It is immaterial whether the municipality has built the side- walk. Being a part of the street, it is under municipal con- trol, and the corporation will be liable for neglecting to exer- 11 e McHugh V. St. Paul, 67 Minn. 441, 70 N. W. 5; City of Free- port V. Isbell, 83 111. 440, 25 Am. Rep. 407; Gaskins v. Atlanta, 73 (^a. 74G. A municipality need not light its streets, if tlieir construction is reasonably safe for travel, in the absence of statutory command or charter duty. Canavan v. Oil City, 183 Pa. 611, 38 Atl. 1096. Where the charter of a city gives it power to provide for light- ing its streets, but does not require it to exercise such power, there is no general duty devolved upon the city to light the streets that will make its failure to do so actionable negligence. City of Day- tona v. Edson (Pla.) 34 South. 954. See City of Chicago v. Apel, 50 III. App. 132. 116 Gordon v. Richmond, 83 Va. 436, 2 S. E. 727; McAllister v. Albany, 18 Or. 426, 23 Pac. 845; City of Cleveland v. King, 132 U. S. 295, 10 Sup. Ct. 90, 33 L. Ed. 334; Wilson v. White, 71 Ga. 506, 51 Am. Rep. 269; Bauer v. Rochester, 59 Hun, 616, 12 N. Y. Supp. 418. A city cannot escape liability for injuries caused by the failure of an electric light company which had conti-acted to light the streets. City of Baltimore y. Beck, 96 Md. 183, 53 Atl. 976. 426 TORTS. (Ch. 16 cise ordinary care to keep it reasonably safe.^^' The duty is an active one, beginning with the construction of the walk and continuing thenceforth as long as it remains under municipal control/^'' If it be the duty of the abutter to make repairs, the municipality is not relieved from liability by notice given to the abutter. The walk must be made safe within a reason- able time, or the municipality will be liable for damages oc- curring from its being out of repair.^^' Reasonable Care — Latent Defects, The municipality is not an insurer of the safety of its side- walks.^^" Its duty is fully performed by the exercise of rea- 117 City of Beardstown v. Clark, 104 111. App. 568; Padelford v. Eagle Grove, 117 Iowa, 016, 91 N. W. 899; Midway v. Lloyd, 24 Ky. Law Rep. 2448, 74 S. W. 195; City of Louisville v. Johnson, 24 Ky. Law Rep. 685, 69 S. W. 803; City of Dallas v. Meyers (Tex. Civ. App.) 55 S. W. 742; Same v. Jones (Tex. Civ. App.) 54 S. W. 606; City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S. E. 389; City of Evansville v. Frazer, 24 Ind. App. 628, 56 N. E. 729; Kellow V. Scranton, 195 Pa. 134, 45 Atl. 676; Saulsbury v. Ithaca, 94 N. Y. 27, 46 Am. Rep. 122; Roe v. Kansas City, 100 Mo. 190, 13 S. W. 404; Barr v. Same, 105 Mo. 550, 16 S. W. 483; Fulliam v. Musca- tine, 70 Iowa, 436, 30 N. W. 861; Graham v. Albert Lea, 48 Minn. 201, 50 N. W. 1108. In the absence of a positive requirement of law that a city keep its streets in a safe or reasonably safe condition, it is bound only to exercise ordinary care to keep them in a reasonably safe condition. City of Dallas v. Moore (Tex. Civ. App.) 74 S. W. 95; Brown v. Chillicothe (Iowa) 98 N. W. 502. But see Wolf v. District of Colum- bia, 21 App. D. C. 464. 118 Brake v. Kansas City, 100 Mo. App. 611, 75 S. W. 191; Shippy V. Au Sable, 85 Mich. 280, 48 N. W. 584; Fulliam v. Muscatine, 70 Iowa, 436, 30 N. W. 861 ; Barr v. Kansas City, supra. iisDomer v. District of Columbia, 21 App. D. C. 284; Michigan City V. Phillips (Ind. App.) 69 N. E. 700; Bennett v. Sing Sing, 60 Hun, 579, 14 N. Y. Supp. 463 ; City of Lincoln v. Staley, 32 Neb. 63, 48 N. W. 887 ; City of Flora v. Naney, 31 111. App. 493 ; Id., 136 III. 45, 26 N, E. 645; Kinney v. Tekemah, 30 Neb. 605, 46 N. W. 835; Hutchings v. Sullivan, 90 Me. 131, 37 Atl. 883; Betz v. Limingi, 46 La. Ann. 1113, 15 South. 385, 46 Am. St. Rep. 344. 120 Burns v. Bradford, 137 Pa. 301, 20 Atl. 997, 11 L. R. A. 726. § 142) SIDEWALKS. 427 sonable care, not only in construction but also in the inspection of walks. It is not liable for every latent defect, but it may be liable for latent defects which proper inspection would have disclosed. The just rule seems to be that whenever a munici pality maintains a sidewalk which it knows, or with due care would know, to be unsafe, it is liable in damages to one suf- fering injury from the defect. ^^^ Hatchways and Coal Chutes in Walks. Hatchways and similar entrances from sidewalks to cellars are necessities in urban life, but the city must take care that such things do not become dangerous to pedestrians.^^^ I basement steps are necessary and permitted in a sidewalk, the} must be guarded with suitable railing ;^^^ and the doors or lids of hatchways or coal chutes must be safe and strong, so as to protect pedestrians from danger. For failure to exercise due care in this respect the municipality may be liable in dam- 121 City of Covington v. Johnson, 24 Ky. Law Rep. 602, 69 S. W. 703; Padelford v. Eagle Grove, 117 Iowa, 616, 91 N. W. 899; Buckley V. Kansas City, 156 Mo. 16, 56 S. W. 319; Cowie v. Seattle, 22 Wash. 659, 62 Pac. 121; City of Peoria v. Simpson. 110 111. 294, 51 Am. Rep. 683; McConnell v, Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. 778; Stebbins v. Keene Tp., 55 Mich. 552, 22 N. W. 37; Kellogg v. Janes- ville, 34 Minn. 132, 24 N. W. 359. A city cannot be held liable for an injury caused by a latent de- fect in a sidewalk without actual notice, where the authorities have used all ordinary and reasonable means to discover it. Powell v. Bowen, 92 111. App. 453. See City of Rockford v. Hollenbeck, 34 111. App. 40; Moon v. Ionia, 81 Mich. 635, 46 N. W. 25; Young v. Kansas City, 45 Mo. App. 600; Jackson v. Pool, 91 Tenn. 448, 19 S. W. 324. 122 Village of Evanston v. Fitzgerald, 37 111. App. 86; Niblett v. Nashville, 12 Heisk. (Tenn.) 684, 27 Am. Rep. 755; Corcoran v. Peekskill, 108 N. Y. 151, 15 N. E. 309; City of Franklin v. Harter. 127 Ind. 446, 26 N. E. 882, Sweeney v. Butte, 15 Mont. 274, 39 Pac. 286; City of Wabasha v. Southworth, 54 Minn. 79, 55 N. W. 818. 123 McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668; Gridley V. Bloomington, 68 111. 47; Id., 88 111. 554, 30 Am. Rep. 566. But see Beardsley v. Hartford, 50 Conn. 542, 47 Am. Rep. 677. 428 TORTS. (Ch. 16 ages.^^* The municipal duty of reasonable care applies also to things above the sidewalk, such as signboards, poles, and awnings. ^^"^ Ice and Snow. The presence of ice and snow upon streets and sidewalks has been a fruitful source of Htigation in many states, and many diverse rulings have been made, due in large measure to difference of latitude. Generally, it may be said that in this particular, as in others, the municipal duty requires only rea- sonable care.^^^ But what is reasonable in Tallahassee may not be in Kalamazoo. Precautions might be necessary in Osh- kosh that would not be necessary in Seattle. Statutes have been passed in the New England States prescribing the meas- ure of municipal duty ; but such statutes, of course, are of local application only, and are not enacted in the Southern States. The only rule of general application, therefore, must be that of reasonable care in view of climatic and other conditions.^ ^' 124 Johnston v. Charleston, 3 S. C. 232, 16 Am. Rep. 721; Galvin v. New York, 112 N. Y. 223, 19 N. E. 675; Roe v. Kansas City, 100 Mo. 190, 13 S. W. 404. But see Littlefield v. Norwich, 40 Conn. 408; Elliott, Roads & Sts. p. 453. 126 Cason V. Ottumwa, 102 Iowa, 99, 71 N. W. 192; Bohen v. Waseca, 32 Minn. 176, 19 N. W. 730, 50 Am. Rep. 504; Langan v. Atchison, 35 Kan. 318, 11 Pac. 38, 57 Am. Rep. 165; Domer v. Dis- trict of Columbia, 21 App. D. C. 284. A municipality is bound to exercise careful supervision of elec- tric wires over its streets, and is liable for injury resulting from neglect of such duty, notwithstanding the liability of the owner. Mooney v. Luzerne, 186 Pa. 161, 40 Atl. 311, 40 L. R, A. 811; Domer V. District of Columbia, 21 App. D. C. 2S4; Contra, City of Fremont V. Dunlap, 69 Ohio St. 286, 69 N. E. 561. 126 Gaylord v. New Britain, 58 Conn. 398, 20 Atl. 365, 8 L. R. A. 752; Gillrie v. Lockport, 122 N. Y. 403, 25 N. E. 357; Adams v. Chicopee, 147 Mass. 440, 18 N. E. 231; Bell v. York, 31 Neb. 842, 48 N. W. 878; Grossenbach v. Milwaukee, 65 Wis. 31, 26 N. W. 182, 56 Am. Rep. 614; Broburg v. Des Moines, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 756. 127 Paulson V. Pelican, 79 Wis. 445, 48 N. W. 715; Mauch Chunk § 143) BRIDGES AND VIADUCTS. d29 BRIDGES AND VIADUCTS. 143. Viaducts and bridges vpitliin a municipality are parts of streets, and objects of tbe same degree of municipal Unless required by mandatory statute, the construction of i bridge by a municipality is within its discretion ; and, the lo- cation of a bridge being a governmental function, the munici- pality is not liable at common law for injury resulting there- from, save to the extent of appropriating private property tc public use under the sovereign power of eminent domain. ^^' Under constitutional and statutory rules, however, as we havr heretofore seen,^^^ it may be liable as well for property dam- aged as property taken; and liability has been adjudged in one case upon the ground that the state has no right to un- dertake improvements in a negligent manner.^^" A municipal corporation is not liable for injuries resulting from the negli- gence or erroneous judgment of its officers or agents in the performance of, or omission to perform, duties which are purely discretionary ; ^^^ such as opening or closing the V. Kline, 100 Pa. 119, 45 Am. Rep. 3G4; Olson v. Worcester, 142 Mass. 536, 8 N. E. 441; Cloughessey v. Waterbnry, 51 Conn. 405, 50 Am. Rep. 38. A city is liable for injuries resulting from ice on a sidewalk caused by the packing of snow which had been allowed to remain on the walk several weeks. Beck v. Buffalo, 50 App. Dlv. 621, 63 N. Y. Supp. 499; Russell v. Toledo, 19 Ohio Cir. Ct. R. 418, 10 O. C. D. 3G7. See, also, Corey v. Ann Arbor, 124 Mich. 134, 82 N. W. 804; Ransom v. Belvidere, 87 111. App. 167. 128 Jones V. Keith. 37 Tex. 399, 14 Am. Rep. 382; Orth v. Mil- waukee, 59 Wis. 336, 18 N. W. 10. 129 Ante, § 112. 130 Hartford County Com'rs v. Wise, 71 Md. 43, 18 All. 31. 131 Howsmon v. Water Co., 119 Mo. 304, 24 S. W. 784, 23 L. R. A. 146, 41 Am. St. Rep. 654. 430 TORTS. (Ch. 16 street,^^^ changing a grade, ^^^ locating a crossing/^* or even suspending a general regulation for the temporary convenience or pleasure of a portion of its people.^*' Ministerial Functions. But after the discretionary function of location has been performed and the municipality enters upon the business of construction, it enters the field of ministerial functions, and may become liable for failure to exercise reasonable care in the process of construction. It has accordingly been held that a corporation may be liable for failure to place proper guards and railings around the bridge approaches during the con- struction,^ ^^ and also on the approaches and bridge itself after it is completed, ^^'^ so as to protect persons upon the bridge exercising ordinary care. It must use due care to erect and maintain a reasonably safe structure/^® and generally is lia- ble for failure to perform, or for negligent performance of its duty in regard to bridges, under the same rules as are applicable to streets.^^® This includes the duty of reasonable 13 2 Bauman v. Detroit, 58 Mich. 444, 25 N, W. 391. 133 Northern Transp. Co. of Ohio v. Chicago, 99 U. S. 635, 25 L. Ed. 336. 134 Smith V. Gould, 61 Wis. 31, 20 N. W. 369. i35Burford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105; Hill v. Board, 72 N. C. 55, 21 Am. Rep. 451; Rivers v. Augusta, 65 Ga. 376, 38 Am. Rep. 787. 138 Weirs v. Jones County, 80 Iowa, 351, 45 N. W. 883; Mullen V. Rutland, 55 Vt. 77; Doherty v. Braintree, 148 Mass. 495, 20 N. E. 106. i37Corbalis v. Newberry Tp., 132 Pa. 9, 19 Atl. 44, 19 Am. St. Rep. 588; Langlois v. Cohoes, 58 Hun, 226, 11 N. Y. Supp. 908; City of Rosedale v. Golding, 55 Kan. 167, 40 Pac. 284. 138 Perkins v. Oxford, 66 Me. 545; Jordan v. Hannibal, 87 Mo. 673. Where a city, under no obligation to do so, attempts to build ap- proaches to a canal bridge built over the canal by the canal trustees, it is liable for damages caused by their defective condition. City of Joliet V. Verley, 35 111. 58, 85 Am. Dec. 342. 139 Village of Marseilles v. Howland, 124 111. 547, 16 N. E. 883; 2 Dill. Mun. Corp. § 728. § 144) DRAINS AND SEWERS. 431 inspection and notice of danger, and for failure to exercise these duties municipalities have been held liable for defect in the floor/*" in the railings of a bridge/*^ and for failure to close or warn the public of a dangerous bridge/** DRAINS AND SEWERS. 144. A municipality may also be liable for misfeasance or nonfeasance in the performance of its duty to exercise reasonable care in tbe construction and maintenance of its drains and senrers. It is well settled that in deciding to build sewers and in choosing a plan the municipality is exercising governmental discretion, and therefore incurs no liability for the negligence or mistakes of its agents ; ^*^ but it is equally well settled by 140 Langlois v. Cohoes. 58 Hun, 226, 11 N. T. Supp. 908; Strong V, Stevens Point, 62 Wis. 255, 22 N. W. 425; Mayor, etc., of City of Griffin v. Johnson, 84 Ga. 279, 10 S. E. 719; Lee County v. Yar- brougli, 85 Ala. .j90, 5 South. 341; Lyman v. Hampshire, 140 Mass- 311, 3 N. E. 211. 141 City of Jaclvsonville v. Drew, 19 Fla. 106, 45 Am. Rep. 5; Woodman v. Nottingham, 49 N. H. 387, 6 Am. Rep. 526. 142 Carney v. Marseilles, 136 111. 401, 26 N. E. 491, 29 Am. St. Rep. 328; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 40; Humphreys v. Armstrong County, 3 Brewst. (Pa.) 49; City of Erie v. Schwingle, 22 Pa. 384, 60 Am. Dec. 87. See, also, Cunliff V. Albany, 2 Barb. (N. Y.) 190. But see City of Albany v, CunlifC, 2 N. Y. 165. 143 Betham v. Philadelphia, 196 Pa. 302, 46 Atl. 448; Pressman V. Dickson City. 13 Pa. Super. Ct. 236; Burger v. Philadelphia, 196 Pa. 41, 46 Atl. 262; Bealafeld v. Verona, 188 Pa. 627, 41 .\tl. 651; King V. Kansas City, 58 Kan. 334, 49 Pac. 88; Champion v. Cran- don. 84 Wis. 405, 54 N. W. 775, 19 L. R. A. 856; Cummins v. Sey- mour, 79 Ind. 491, 41 Am. Rep. 618; Mills v. Brooklyn, 32 N. Y. 489; Perry v. Worcester, 6 Gray (IMass.) 544, 66 Am. Dec. 431; Johnston V. District of Columbia, 118 U. S. 19, 6 Sup. Ct 923, 30 L. Ed. 75; Child V. Boston, 4 Allen (INIass.) 41, 81 Am. Dec. 680. Where the municipal authorities have adopted a plan of sewerage, they are not liable for damages resulting from an insufficiency in size 432 TOUTS. (Ch. 16 a great preponderance of authority that a municipality is Hable for damages resulting from its neglect to properly discharge its ministerial duty to exercise reasonable care in the construc- tion and maintenance of its sewers.^** Even the New England States, and others, denying municipal liability for defective streets, generally recognize and enforce this rule with regard to sewers.^*'* The courts do not concur as to the ground of this distinction between sewers and streets; nor is there here space to set them forth. They are more interesting than im- portant, and the curious are referred to the able opinion of Judge Holmes in a leading Massachusetts case.^*^ The tru^ ground of responsibility for negligence in the care of sewers seems to be the same as in the care of highways, namely, the corporation has neglected its municipal duty to exercise rea- of the sewers, though they may be for injuries resulting from neg- ligence in their construction. Cooper v. Scranton City, 21 Pa. Super. Ct. 17. Mere omission of the municipality to provide adequate means for carrying off the water whicli accumulates will not sustain an action. Id. See Stevens v. Muskegon, 111 Mich. 72, 69 N. W, 227, 36 L. R. A. 777. But a city is not an insurer of the condition of its sewers, though it is bound to use reasonable care in keeping them in repair. Weid- man v. New York, 84 App. Div. 321, 82 N. Y. Supp. 771. 144 Chalkley v. Richmond, 88 Va. 402, 14 S. E. 889, 29 Am. St. Rep. 730. And the question of liability of the city is not affected by the fact that the sewer was originally built by the state. Id. See Donahoe v. Kansas City, 136 Mo. 657, 38 S. W. 571; Clay v. St. Albans, 43 W. Va. 539, 27 S. E. 368, 64 Am. St. Rep. 883; City of Baltimore v. Schnitker, 84 Md. 34, 34 Atl. 1132; Flori v. St. Louis, 69 Mo. 341, 33 Am. Rep. 504; Stock v. Boston, 149 Mass. 410, 21 N. E. 871, 14 Am. St. Rep. 430; Rochester White Lead Co. v, Rochester, 3 N. Y. 463, 53 Am. Dec. 316; Kranz v. Baltimore, 64 Md. 491, 2 Atl. 90S; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Semple v. Vicksburg, 62 Miss. 63, 52 Am. Rep. 181. 146 Gilman v. Laconia, 55 N. H. 130, 20 Am. Rep. 175; Bates v. Westborough, 151 Mass. 174, 23 N. E. 1070, 7 L. R. A. 156; Judge v. Meriden, 38 Conn. 90. 14G Bates V. Westborough, supra. § 144) DRAINS AND SEWERS. 433 sonable diligence in the care and management of property un- der its control.^*'' Municipal ownership is not essential to liability; municipal control will be sufficient.^*^ On the con- trary, municipal ownership of the land over which the drain or sewer runs is not sufficient to cause liability; ^''^ municipal control is essential. And it has been held that when a sewer runs partly through private and partly through municipal prop- erty the corporation is liable for the entire damage done by overflow at its outlet.^ ^° In one of the two states ^^^ least in- clined to the doctrine of municipal liability for neglect to re- pair sewers, the Supreme Court, after elaborate consideration, expressed this conclusion : "The defendant is not responsible for the consequences of a break in the sewer in question per se, even though it be the result of the carelessness of its own agents, for the public is not responsible for such misfeasances of its officers; but when such break has occurred, occasioning a private nuisance exclusively, and the public authorities have been notified of the accident, we think that then they owe a duty to the individual to put the sewer in a proper condition, and that for the nonperformance of such duty an action will lie." ^®^ It has been held that a municipality is liable for damages sustained by individual owners from the flooding of their premises by drains or sewers; ^^^ and from the depositing 147 Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289. 148 Taylor v. Austin, 32 Minn. 247, 20 N. W. 157. 149 Kosmak v. New York, 117 N. Y. 3G1, 22 N. E. 945. 150 Stoddard v. Saratoga Springs, 127 N. Y. 2G1, 27 N. E. 1030. A municipal corporation having power to construct sewers in its streets is liable for improperly locating and constructing the out- let of a sewer, which is principally located along the streets, so as to discharge the sewage on plaintiff's premises, though the lower part of the sewer, including the outlet, is located on private grounds. Id. See Beach v. Elmira, 58 Hun, GOG, 11 N. Y. Supp. 913. 151 California and New Jersey. 152 Jersey City v. Kiernan, 50 N. J. Law, 24G, 13 Atl. 170. Cf. Spangler v. San Francisco, 84 Cal. 12, 23 Pac. 1091, 18 Am. St. Rep. 158. 153 McCartney v. Philadelphia. 22 Pa. Super. Ct. 257; Semple v. I XG. Corp.— 28 434 TORTS. (Ch. 16 of sewage upon their lands, though this be a necessary result of the plan adopted. ^^* So, also, damages may be recovered by private action for the pollution of a stream by sewage so as to render the water unfit for use by the riparian owner or occupier; ^^^ and in some cases the municipality has been en- joined from emptAang its sewage into a running stream, where- by a public nuisance was created.^"^" Vicksburg, 62 Miss. 63, 52 Am. Rep. 181; Imler v. Springfield, 55 Mo. 119, 17 Am. Rep. 645; Asjiley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552; Staucbfield v. Newton, 142 Mass. 110, 7 N. E. 703. A city is not liable because surface water flows from a street upon an adjoining lot. Jordan v. Benwood, 42 W. Va. 312, 26 S, E. 206, 36 L. R. A. 519, 57 Am. St. Rep. 859; Sievers v. San Francisco, 115 Cal. 648, 47 Pac. 687, 56 Am. St. Rep. 153. Cf. City of Denver v. Duusmore, 7 Colo. 328, 3 Pac. 705; Smith v. New York, 66 N. Y. 295, 23 Am. Rep. 53. 154 Bennett v. Marion, 119 Iowa, 473, 93 N. W. 558; McBride v. Akron, 12 Ohio Cir. Ct. R. 610, 6 O. C. D. 739; Owens v. Lancaster, 182 Pa. 257, 37 Atl. 858; Bacon v. Boston, 154 Mass. 100, 28 N. E. 9; Magee v. Brooklyn, 18 App. Div. 22, 45 N. Y. Supp. 473; Boston Belting Co. v. Boston, 149 Mass. 44, 20 N. E, 320; City of Ft. Wayne V. Coombs, 107 Ind. 75, 7 N. B. 743, 57 Am. Rep. 82; Attwood v. Bangor. 83 Me. 582, 22 Atl. 466; City of Nashville v. Comar, 88 Tenn. 415, 12 S. W. 1027; Stoddard v. Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030. 165 Pettigrew v. Evansville, 25 Wis. 223, 3 Am. Rep. 50; Gould v. Rochester, 105 N. Y. 46, 12 N. E. 275; Inman v. Tripp, 11 R. I. 520. 23 Am. Rep. 520.. The pollution of a flowing stream by emptying into it the sewage of a city, contaminating and poisoning its waters, and rendering it unfit for use by persons through whose premises it flows, is a public nuisance. Mayor, etc., of Birmingham v. Land, 137 Ala. 538, 34 South. 613; City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. S6. 58 L. R. A. 628; Owens v. Lancaster, supra. It has been held that a city has the right to construct drains to conduct the surface water from its streets into a ditch or drain which is a natural water course, so long as reasonable care and i^lvill are exercised in doing the work. Miller it ]Meyers v. Newport News, 101 Va. 432, 44 S. E. 712. 156 Haskell v. New Bedford, 108 Mass. 208; Peterson v. Santa Rosa, 119 Cal. 387, 51 Pac. 557; People v. San Luis Obispo, 116 Cal. 617, 48 Pac. 723. 15 145) RESPONDEAT SUPERIOR. i35 RESPONDEAT SUPERIOR. 145. The liability of municipal corporations in most casrss of tort rests upon tie general doctrine of the common laiv that the master is liable for the xprongs done by the servant ivheu acting ivithin the scope of his em- ployment. The difficulties encountered in the application of this doctrine to private corporations, as shown in the multitude of adjudged cases upon the subject, are enhanced in its attempted applica- tion to municipalities. What officers are agents, and what acts of theirs may render the municipality liable for tort, are ques- tions of inherent difficulty, because of the dual nature of the corporation. Obviously, there can be no liability for tort un- less there has been a violation of some municipal duty ; nor can a corporation be held liable for the acts of officers whom it does not control. But the corporation may be liable for the conduct of officers not appointed by it, but by the state for it^^'^ In a leading case in New York the following test of liability has been declared : "To determine whether there is municipal responsibility, the inquiry must be whether the de- partment whose misfeasance or nonfeasance is complained of is a part of the machinery for carrying on the municipal gov- ernment, and whether it was at the time engaged in the dis- charge of a duty, or charged with a duty primarily resting upon the municipality." ^^^ An able author on the subject has thus stated the rule governing liability in such cases : "For the acts of an independent officer, whose duties are fixed and prescribed by law, the city cannot be held chargeable upon the principle of respondeat superior, for the relation of master and servant does not exist. Such officers are quasi civil officers of 157 BAILEY V. MAYOR, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Dis trict of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472. 158 Pettengill v. Youkers, 110 N. Y. 558, 22 N. E. 1095, 15 Am.. St. Rep. 442. 436 TORTS. (Ch. IG the government, even though appointed by the corporation. But an exception to this rule exists when the corporation is under an absolute duty to perform the acts which are devolved upon such officers, or when the corporation, as such, derives an immediate profit and advantage therefrom." ^^^ The ap- plication of these fundamental rules to the facts of any case will usually determine the question of municipal liability for the misfeasance or nonfeasance of its officers. Independent Contractors. The general rule that a corporation is not liable for injuries resulting from the acts of an independent contractor is applica- ble to municipal as well as private corporations; but this rule does not excuse a municipality from liability for damages caused by its failure to perform an absolute duty owing to the public.^*" It has been held, therefore, that a municipal cor- poration will be liable for the negligence of independent con- tractors in the building of sewers and cisterns,^ ®^ or in grad- ing or repairing streets ; ^®^ since in these matters it owes the absolute duty of reasonable care. The defense of negligence of a fellow servant in the same department of public works has been sustained in some states; ^®^ but this defense is not 159 Wood, Mast. & Serv. § 463. See Sievers v, San Francisco, 115 Cal. 648, 47 Pac. 687, 56 Am. St. Rep. 153. 160 City of Omaha v. Jensen, 35 Neb. 68, 52 N, W. 833, 37 Am. St. Rep. 432; City of Louisville v. Sbauahan (Ky.) 56 S. W. 808; 2 Dill. Mun. Corp. §§ 1028, 1029. 161 Mayor, etc., of City of Nashville v. Brown, 9 Heisk. (Tenn.) 1, 24 Am. Rep. 289. 162 City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 37 Am. St. Rep. 432. The duty of caring for and supervising the condition of its public streets is one vrhicb rests upon a municipality as such, and the doc- trine of respondeat superior applies. Hall v. Austin, 73 Minn. 134, 75 N. W. 1121. 163 McDermott v. Boston, 133 Mass. 349; Dube v. Lewiston, 83 Me. 211, 22 Atl. 112. § 146) ULTRA VIRES. 437 allowed where both the negligent and the injured employe are not engaged in the same department of service.^"* UI-TRA VIRES. 146. A municipal corporation is not civilly liable for damages sufPered by individuals in person or property wbieb are caused by the tortious acts of municipal agents or officers assuming to represent it in matters \pIiolly ultra vires. A municipal corporation cannot confer upon its agents or officers lawful authority to represent it beyond the scope of its charter powers. For acts not governmental, but strictly cor- porate or municipal within the scope of the municipal powers exercised for a municipal purpose, the municipality may be liable for misfeasance ; as in the negligent construction by officers of a sewer not authorized or directed by the municipal council; ^^^ or in the forcible and irregular taking of private property without pursuing the legal and authorized procedure for exercising eminent domain and compensating the owner. ^^^ Or it may be liable for nonfeasance in failing to perform a municipal duty whereby individuals are injured either in per- son or property.^ ^^ But for the malfeasance of agents or offi- cers of the corporation in assuming to do acts which are en- tirely beyond the municipal powers and purposes, and cannot, therefore, be lawfully authorized by the municipality, the cor- poration cannot be held liable in damages to persons suffering injuries therefrom. This logical doctrine, based upon ele- mentary principles of the common law, received general, if not 16* Palmer v. Portsmouth, 43 N. H. 2fl5; Wanamaker v. Rochester. G3 Him, 625, 17 N. Y. Supp. 321. 185 Stoddard v. Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030. 166 Hunt V. Boonville, 65 Mo. 620, 27 Am. Rep. 299. 16T City of Galveston v. Posnaiusky, 62 Tex. 118, 50 Am. Rep. 517; City of Ft. Worth v. Crawford, 74 Tex. 404, 12 S. W. 52. 15 Am. St. Rep. 840; Moore v. Los Angeles, 72 Cal. 287, 13 Pac. 855; Loughran v. Des Moines, 72 Iowa, 382, 34 N. W. 172. 438 TORTS. (Ch. 16 universal, recognition in America by the concurrent decisions of the courts for ahnost a century/"* It was applied in all civil actions for torts caused by the malfeasance of corporate officers or agents when pursuing any undertaking not within the scope of municipal purposes or powers, express, inherent, or implied ; and it still remains the general doctrine of the courts, though not so firmly established and universally rec- ognized as formerly. Salt Lake City Case. The stability of this doctrine of the law is supposed to be shaken by the decision of the Supreme Court of the United States in the unique case of Salt Lake City v. Hollister,^®^ wherein Mr. Justice Miller, in delivering the opinion of the court, said : "The truth is that, with the great increase in corporations in very recent times, and in their extension to nearly all the business transactions of life, it has been found necessary to hold them responsible for acts not strictly within their corporate powers, but done in their corporate name, and by corporation officers, who were competent to exercise all the corporate powers. When such acts are not founded on con- tract, but are arbitrary exercises of power in the nature of torts, or are quasi criminal, the corporation may be held to a pecuniary responsibility for them to the party injured." ^'^'* Concerning this a recent author says : "The efifect of this de- cision is to broaden materially the view of liability of munici- pal corporations for torts, and it is a strong authority in sup- port of the contention that these bodies should be liable for negligence in respect to their ultra vires acts. * * * Such an act of the corporation is made doubly wrongful by the fact 168 Wabaska Electric Co. v. Wymore, 60 Neb. 199, 82 N. W. 626. The acts of city authorities in cutting a ditch along the side of a lot outside the city limits are ultra vires, and hence the city is not liable for injuries resulting therefrom to the lot owner. Loyd V. Columbus, 90 Ga. 20, 15 S. E. 818. 189 118 U. S. 256, 6 Sup. Ct. 1055, 30 L. Ed. 176. 170 lis u. S. 261, 6 Sup. Ct. 1058, 30 L. Ed. 176. § 146) ULTRA VIRES. 433 that it is in excess of the corporate power, and for the dam- ages resulting from it the corporation should respond." ^^^ On the contrary, Judge Dillon, in a brief criticism of the com- prehensive language of this opinion, says : "The judgment of the court, which, on the special facts, \vas unquestionably sound, need not necessarily rest upon so broad a basis as the one above indicated, and the observation of the court in the opinion must be limited accordingly. * * * Such a view, if sound as respects private corporations, would seem not to be so as respects municipal corporations, whose powers are defined and limited for the express purpose of protecting the inhabitants from just such liability." ^"^ Doctrine not Unsettled. An examination of this case shows the foregoing language of Mr. Justice Miller to be an obiter dictum, and supports the criticism of Judge Dillon. Salt Lake City, having erected la distillery, proceeded without authority to engage in the busi- ness of distilling spirits, and while so doing, in violation of the United States revenue laws, made fraudulent returns of the quantity of spirits produced. Its fraud was detected, and a lawful assessment made upon the city as a distiller for the gallon tax upon the liquor actually produced and fraudulently omitted from the required report. To enforce the collection of this tax and penalty, the government was about to seize municipal property, whereupon the city, to save its property, paid the tax under protest, and then brought action against the collector to recover the amount so paid. The ground of its action was that the business of dis*^illing spirits by Salt Lake City was ultra vires. The very impudence of the contention provoked the court to pungent ridicule of the plaintiff's ac- tion,^^^ and naturally strong language was used in refuting 171 Jones, Negl. Mun. Corp. § 177. 172 2 Dill. Mun. Corp. p. 1192, note. 17 3 "It would be a fine thing, if this argument is good, for all distillers to organize into milling corporations to make flour, and proceed to the more profitable business of distilling spirits, which 4ttO TORTS. (Ch. IG its absurd contention and denying its demand. But the ques- tion in the case was not whether a municipahty is liable in a civil action to an individual injured by the tortious acts of its agents or officers ultra vires, but only whether it could recover from the government a sum of money paid under protest to avoid seizure of its property for a lawful tax and penalty. And accordingly the digest syllabus thus accurately expresses the decision in the case : "A municipal corporation engaged in the business of distilling spirits is subject to internal revenue taxes under the laws of the United States, whether its acts in this respect are or are not ultra vires." ^''^ The gist of the de- cision is found in the following excerpt from the opinion : "A municipal corporation cannot, any more than any other cor- poration or private person, escape the taxes due on its prop- erty, whether acquired legally or illegally ; and it cannot make its want of legal authority to engage in a particular transaction or business a shelter from the taxation imposed by the gov- ernment on such business or transaction, by whomsoever con- ducted." ""^ The fundamental rules of law upon which a person or cor- poration becomes liable for a tax are so widely different from those which declare liability for a tort that even these cogent words of Justice Miller, used arguendo in the decision of a revenue case, are not likely to unsettle the logical rule as to torts to private individuals established by the concurrent de- cisions of courts of last resort through scores of years in the United States. would be unauthorized by their charters or articles of incorporation; for they would thus escape taxation, and ruin all competition." 118 U. S. 259, 6 Sup. Ct. 1057, 30 L. Ed. 176. 174 3 Russ & W. Syl. Dig. p. 3517. 17 6 118 U. S. 2G2, 6 Sup. Ct. 1059. 30 L. Ed. 176. § 147) DEBTS, FUNDS, AND ADMINISTRATION, 441 CHAPTER XVn. DEBTS, FUNDS, EXPENSES, AND ADMINISTRATION. 147. Indebtedness. 148. Limitation of Inaebtedness. 149. Municipal Bonds. 150. Borrowing Money. 151. Express and Implied Power to Issue. 152. Municipal Warrants. 153. Funds. 154. Rights of Creditors. 155. Expenses. 156. Budget 157. Claims. 158. Appropriation. INDEBTEDNESS. 147. Within the scope of its charter powers, a mnnicipality, in the exercise of corporate functions and transaction of municipal affairs, may incur indebtedness to any extent not forbidden by la\ir. A municipal corporation, as an agency of the state for more efficient local government, must inevitably incur expenses in the necessary performance of its various municipal functions. These expenses, unless paid for as fast as incurred, stand as obligations of the municipality, to be met and discharged like those of other corporations and individuals under the law. For this purpose the power of taxation is conferred upon the municipality, and thus annually it is supposed to receive suffi- cient revenue to discharge its indebtedness. But so rapid has been the growth of American cities and towns that it has been found impossible in practice to provide annual revenues equal to the annual expenditures ; much less to provide them in advance. From this it results that American municipalities, as 442 DEBTS, FUNDS, AND ADMINISTRATION. (Ch. 17 a rule, live in the condition of constant indebtedness, excep- tions to which are of very rare occurrence. Amount. Clothed with the power of eminent domain, and the in- herent power to contract, and required to exercise police pow- ers, and some of these at its peril, a municipality must neces- sarily incur large expense, the amount of which, under the American rules of local self-government, properly rest in the discretion of the municipality; and, in the absence of consti- tutional or statutory limitations, this discretion as to amount is unbounded.^ The law is, however, imperative tha'. to con- stitute a valid indebtedness, the expenditure must be incurred within charter powers and for municipal purposes.^ Within these boundaries the municipality may go on incurring indebt- edness at its pleasure to the statutory limit. LIMITATION OF INDEBTEDNESS. 148. Limitation to municipal indebtedness may be fixed eitber by statute or constitution, beyond ^vbicb no obligation can be incurred by the municipality. Limitations upon municipal indebtedness, either by consti- tution or statute, are to be found in nearly all the American states. The limit is usually fixed at a certain per cent, or aHquot part of the total assessed value of real estate, or real and personal property, in the corporate limits.* The form of 1 Coggeshall v. Des Moines, 78 Iowa, 235, 41 N. W. 617; City of Galena v. Corwith, 48 111. 423, 95 Am. Dec. 557. 2 Breuham v. Bank, 144 U. S. 173, 12 Sup. Ct. 559, 36 L. Ed. 390; Id., 144 U. S. 549. 12 Sup. Ct. 975, 36 L. Ed. 399; CLARK v. DES MOINES, 19 Iowa, 199, 87 Am. Dec. 423; Bissell v. Kankakee, 64 111. 249, 21 Am. Rep. .554; HASBROUCK v. MILWAUKEE, 13 Wis. 37, 80 Am. Dec. 718; Hequembourg v. Dunkirk, 49 Hun, 550, 2 N. Y. Supp. 447. 3 Nalle V. Austin (Tex. Civ. App.) 42 S. W. 780; Duncan v. Charles- ton, GO S. C. 532, 39 S. E. 265; Keller v. Scranton, 200 Pa. 130, 4» § 148) LIMITATION OF INDEBTEDNESS. 443 such constitutional inhibition is usually such as to prevent either the legislature or the municipality from passing the con- stitutional limit ; in which case all indebtedness, howsoever in- curred, beyond this limitation is void.* Limitation may also Atl. 781, 86 Am. St. Rep. 708; Herman v. Oconto, 110 Wis. 660, 86 N. W. 681; Rice v. Milwaukee, 100 Wis. 516, 76 N. W. 341; Allen v. Davenport, 107 Iowa, 90, 77 M. W. 532; Reynolds v. Waterville, 92 Me. 292, 42 Atl. 553; Weber v. Dillon, 7 Okl. 568, 54 Pac. 894; Phil- lips V. Reed, 107 Iowa, 331, 76 N. W. 850; Freeman v. Huron, 10 S. D. 368, 73 N. W. 260; Darling v. Taylor, 7 N. D. 538, 75 N. W. 760; School Town of Winamac v. Hess, 151 Ind. 229. 50 N. E. 81; Graham V. Spokane, 19 Wash. 447, 53 Pac. 714; Faulkner v. Seattle, 19 Wash. 320, .^3 Pac. 305; Epping v. Columbus, 117 Ga. 263, 43 S. E. 803; Roff T. Calhoun, Id.; Swanson v. Ottumwa, 118 Iowa, 161, 91 N. W. 1048. 59 L. R. A. G20; Beck v. St. Paul, 87 Minn. 381, 92 N. W. 328; Krons- bein v. Rochester, 76 App. Div. 494, 78 N. Y. Supp. 813; City of Austin V. Valle (Tex. Civ. App.) 71 S. W. 414 ; People v. City Coun- cil, 23 Utah, 13, 64 Pac. 460. See, also, Browne v. Boston, 179 Mass. 321, 60 N. E. 934. The Constitution of Pennsylvania illustrates such an inhibition in few words: "The debt of any city, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein." Where the actual and assessed value of taxable property is not the same, the computation is to be made upon the assessed value. City Water Supply Co. v. Ottumwa (C. 0.) 120 Fed. 309. 4 Balch V. Beach, 119 Wis. 77, 95 N. W. 132; Grady v. Landram, 23 Ky. Law Rep. 506, 63 S. W. 284; Duncan v. Charleston, supra; City of Helena v. Mills, 94 Fed. 916, 36 C. C. A. 1; City Water Supply Co. V. Ottumwa, supra; German Ins. Co. of Freeport v. Man- ning (C. C) 95 Fed. 597. See State v. Quayle, 26 Utah, 26, 71 Pac. 1060; City of Baltimore v. Gill, 31 Md. 375; People v. May, 9 Colo. 80, 10 Pac. 641; Buchanan v. Litchfield, 102 U. S. 278, 26 L. Ed. 138; Dixon County v. Field, 111,U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; LITCHFIELD x. BALLOU, 114 U. S. 190. 5 Sup. Ct. 820, 29 L. Ed. 132; Lake County v. Rollins, 130 U. S. 662, 9 Sup. Ct. 651, 32 L. Ed. 1060; SPILMAN v. PARKERSBURG, 35 W. Va. 005, 14 S. E. 279; Quill v. Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681; City of Indianapolis v. VVann, 144 Ind. 175, 42 N. E. 901, 31 L. R. A. 743; John Hancock Mut. Life Ins. Co. v. Huron, 100 Fed. 1001, 40 C. C. A. G83; Prickett v. Marceline (C. C.) 65 Fed. 469. 444 DEBTS, FUNDS, AND ADMINISTRATION. (Ch. 17 be fixed in the charter, or by general statute, which cannot be transgressed by the inimicipaHty ; ° but such boundary being fixed by the legislature may likewise be transgressed by it, and indebtedness beyond the statutory limit may be imposed upon the municipality by the legislature." Kinds of Indebtedness. The recognized classes of municipal indebtedness are two, ^1) bonded and (2) current; and much contention has arisen, in consequence of the joint efiforts of reckless municipalities and speculative investors to transgress the prescribed limits, as to whether the prohibition included all classes of municipal indebtedness. In some cases there is manifested a disposition in the courts to give liberal construction to such limitations ; '' but by far the greater weight of authority favors such strict construction of these statutory and constitutional prohibitions as will include all classes of debts, and thereby protect the citizens from overburdensome taxation.* B Jutte & Foley Co. v. Altoona, 94 Fed. 61, 36 C. 0. A. 84; MCDON- ALD V. NEW YORK, 68 N. Y. 23, 23 Am. Rep. 144; Keeney v. Jersey City, 47 N. J. Law, 449, 1 Atl. 511; Nelson v. Mayor, 63 N. Y. 535 ; Mayor of Rome v. Mc Williams, 67 Ga. 106. 6 Moslier v. Schiool Dist., 44 Iowa, 122. 7 Wells V. Sioux Falls (S. D.) &1 N. W. 425; Barnard & Co. v. Knox County (C. C.) 37 Fed. 563, 2 L. R. A. 426; KELLY v. MINNEAPO- LIS, 63 Minn. 125, 65 N. W. 115, 30 L. R. A. 281; State v. Com- mon Council, 96 Wis. 73, 71 N. W. 86; Todd v. Laurens, 48 S. C. 395, 26 S. E. 682. 8 Scliultze V. Maucliester, 40 Atl. 589; City of Chicago v. McDon- ald, 176 111. 404, 52 N. E. l)S2; City of Laporte v. Telegraph Co., 146 Ind. 466, 45 N. E. 5SS, 35 L. R. A. 086, 58 Am. St. Rep. 359; City of Walla Walla v. Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L, Ed. 341; Niles Water Works v. Mayor, 59 Mich. 311, 26 N. W. 525; Buck V. Eureka, 124 Cal. 61, 56 Pac. 612; Lake County v. Graham, 130 U. S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065; People v. May, 9 Colo. 414, 15 Pac. 36; District Tp. of Doon v. Cummins, 142 U. S. 366, 12 Sup. Ct. 220, 35 L. Ed. 1044; Francis v. Howard County (C. C.) 50 Fed. 44. § 149) MUNICIPAL BONDS. 445 Sum Total — How Cofuputed. By the weight of judicial opinion the total amount of mu- nicipal indebtedness is to be ascertained by adding together all bonded and current indebtedness,® including both imposed and voluntary, and not only present but future obligations, if they be vested or fixed, ^° and also the annual sum payable upon any continuing contract of rental or service. ^^ The sum total thus ascertained will be the limit to the municipal power to incur indebtedness. MUNICIPAL BONDS. 149. Municipal bonds are now generally nnderstood to mean negotiable bonds issued by a municipality as security for its indebtedness. Municipal bonds are not necessarily negotiable. They may in form lack some element of negotiability, or may include some phrase rendering them nonnegotiable. But the custom of making such bonds negotiable in form has become so preva- lent as to be almost universal, and the term "municipal bonds" sSackett v. New Albany, 88 Ind. 473, 45 Am. Rep. 467; LITCH- FIELD V. BALLOU, 114 U. S. 190, 5 Sup. Ct. 820, 29 L. Ed. 132: Lake County v. Rollins, 136 U. S. 662, 9 Sup. Ct. 651, 32 L. Ed. 1060; Epping V. Columbus, 117 Ga. 263, 43 S. E. S03; Balcli v. Beach, 119 Wis. 77, 95 N. W. 132; Stone v. Chicago, 207 111. 492, 69 N. E. 970. 10 City of Laporte v. Telegraph Co., 146 Ind. 466, 45 N. E. 588, 35 L. R. A. 086, 58 Am. St. Rep. 359; Beard v. Hopkinsville, 95 Ky. 239, 24 S. W. 872, 23 L. R. A. 402, 44 Am. St. Rep. 222; Niles Water Works Co. V. Mayor, supra. 11 Baltimore & 0. S. W. R. Co. v. People, 200 111. 541, 66 N. E. 148; Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57; Crowder v. Sullivan, 128 Ind. 486, 28 N. E. 94, 13 L. R. A. 647; Lott \. Mayor, 84 Ga. 681, 11 S. E. 558; Brown v. Corry, 175 Fa. 528, 34 Atl. 854; City of East St. Louis V. Coke Co.. 98 111. 41.5, 38 Am. Rep. 97; Smith v. Dedham, 144 Mass. 177, 10 N. E. 782. But see City of Centerville v. Guaranty Co., 118 Fed. 332, 55 C. C. A. 348: Cain v. Wyoming, 104 111. App. 538; Xiles Water Works Co. v. Mayor, supra; State v. Medbery, 7 Ohio St. 523. 446 DEBTS, FUNDS, AND ADMINISTRATION. (Ch. 17 in modern parlance implies negotiability.^- They are gener- ally issued as security for a loan of money to the municipality. But sometimes they are used to subsidize a quasi public corpo- ration engaged in some undertaking of advantage to the mu- nicipality, such as a railroad, gas, water, or electric company. BORROWING MONEY. 150. Express po-wer to incur indebtedness by borroxring money on tbe mnnicipal credit may be conferred npon a municipal corporation eitber by cbarter or by general lanr. liike poxrer may also be implied as appropriate and neces- sary for tbe proper and efficient exercise of tbe mu- nicipal po\pers expressly conferred upon the corpora- tion. liacking express or implied pourer for sucb purposes, a mu- nicipality does not possess inherent po^xrer to incur municipal indebtedness by borrowing money on mu- nicipal credit. Until the era of municipal extravagance had come to Amer- ica, municipal corporations had been wont to borrow money, and give their notes or bonds therefor, without serious doubt or question as to the existence or source of such power; and it had accordingly been recognized in several cases that notes or bonds given by municipalities for money borrowed were valid municipal obligations.^^ And it is still generally, if not universally, conceded that a municipal corporation, under ex- press authority or authority clearly implied, may incur indebt- edness by borrowing money for municipal purposes.^* But upon recent challenge it has been declared in the Supreme 12 Black, Law Diet. tit. "Municipal Bonds." 13 City of Quincy v. Wartield, 25 111. 317, 79 Am. Dec. 330; De Voss V. Richmond, 18 Grat. (Va.) 338, 98 Am. Dec. 647, and note; BANK OF CHILLICOTHE v. CHILLICOTHE, 7 Ohio, 31, pt. 2, SO Am. Dec. 185; MILLS v. GLEASON, 11 Wis. 470. 78 Am. Dec. 721. 14 City of Tyler v. L. L. .Jester & Co. (Tex. Civ. App.) 74 S. W. 359; 1 Dill. Mun. Corp. §§ 117-120, and notes. § 150) BORROWING MONET. 447 Court of the United States that the power to borrow money is not an incidental and necessary power of a municipal cor- poration; ^^ and that to create a valid indebtedness for money borrowed by a municipality there must exist either express authority, or the same must be clearly implied from granted powers.^® To this view has been added the great weight of the opinion of Judge Dillon, ^'^ and the concurrence of some of the state Supreme Courts,^ ^ and it is probable that the pre- ponderance of judicial opinion is against the inherent power of a municipality to borrow money. There are certain con- trary decisions, however, which are irreconcilable with this view; ^^ but many of the cases supposed to favor the inherent power of a corporation to borrow money will be found on close scrutiny, and limitation of the language to the facts of the cases, to be authority only for the doctrine that this power may be implied as necessary and proper to carry out the express powers conferred upon the municipality.^" It is believed. therefore, that the great majority of the adjudged cases can 15 Opinion of Bradley, J., in MAYOR OF NASHVILLE v. RAY, 19 Wall. (U. S.) 479, 22 L. Ed. 164. 16 MAYOR OF NASHVILLE v. RAY, 19 Wall. (U. S.) 468, 22 L. Ed. 164. See, also, Watson v. Huron, 97 Fed. 449, 38 C. C. A. 264. 17 1 Dill. Mun. Corp. § 125. 18 Swackliamer v. Hackettstown, 37 N. J. Law, 191; Robertson v. Breedlove, 61 Tex. 316; Allen v. Lafayette, 89 Ala. 641, 8 South. 30, 9 L. R. A. 497. The power to borrow money, incur indebtedness, and issue bonds on behalf of the people of the state or any subdivision thereof is the function of the legislature to exercise itself, or to delegate to mu- nicipal or quasi municipal corporations. Board of Com'rs of Seward County V. Insurance Co., 90 Fed. 222, 32 C. C. A. 585. i» Miller v. Board, 66 Ind. 162; City of Williamsport v. Com., 84 Pa. 487, 24 Am. Rep. 208; Com. v. Pittsburgh. 41 Pa. 278; BANK OF CHILLICXDTHE v. CHILLICOTHE, 7 Ohio St. 31, pt. 2, 30 Am. Dec. 185. 2 MILLS V. GLEASOX, 11 Wis. 470, 78 Am. Dec. 721; Clarke v. School Dist, 3 R. I. 199; State v. Babcock, 22 Neb. 614, 35 N. W. 941; Curtis V. Leavitt, 15 N. Y. 9; City of Richmond v. McGirr, 78 Ind. r.t2; Wells v. Salina, 119 N. Y. 280, 23 N. E. 870, 7 L. R. A. 759.. 448 DEBTS, FUNDS, AND ADMINISTRATION. (Ch. 17 be reconciled upon the basis of the sound and safe doctrines stated in the heading of this section. EXPRESS AND IMPLIED POW^ER TO ISSUE. 151. Authority to issue municipal bonds is not inherent In a municipality, but may be expressly conferred by the legislature, or may be implied as necessary to the exercise of the express poixrers. This subject, like the preceding one, has undergone much judicial examination, and there are cases holding that the power to issue bonds is inherent in the municipality;^^ but most of these cases on examination will be found as sustain- ing rather the implied than the inherent power of a municipal- ity to issue bonds, and it is believed that the great majority of the apparently conflicting decisions on this subject, as well as on the subject of borrowing money, may be reconciled upon the foregoing statement. ^^ This power to issue negotiable paper will be implied from the express power to borrow mon- ey; ^^ but the courts have been generally averse to any such implication where the bonds are to be used as municipal aid to the construction of a railroad, either by subscription to stock or purchase of bonds.^* Usually the statute authorizing the 21 Com. V. Pittsburgh, 41 Pa. 278; Clark v. Janesville, 10 Wis. 136. 2 2 An inherent power exists in the municipality as an -sential function of its corporate existence, and independent of its granted powers. Smith v. Newbern, 70 N. C. 14, IG Am. Kep. 76G. 2 3 City of Galena v. Corwith, 48 111. 423, 95 Am. Dec. 557; De Voss V. Richmond, 18 Grat. (Va.) 338, 98 Am. Dec. G47; Merrill v. Monticello, 138 U. S. G73, 11 Sup. Ct. 441, 34 L. Ed. 10G9. 24 Fisk V. Kenosha, 2G Wis. 23; AYilliamson v. Keokuk, 44 Iowa, 88; Pitzman v. Freeburg, 92 111. Ill; Coloma v. Eaves, 92 U. S. 484, 23 L. Ed. 579; Mississippi, O. & R. R. R. Co. v. Camden, 23 Ark. 300; Pennsylvania R. Co. v. Philadelphia, 47 Pa. 189; Young v. Clarendon Tp., 132 U. S. 340, 10 Sup. Ct. 107, 33 L. Ed. 356. But in Jennings Banking & Trust Co. v. Jefferson, 30 Tex. Civ. App. 534, 70 S. W. 10U5, it was held that Avhere a city charter au- thorizes the issuance of bonds to aid in the construction of rail- § 151) EXPRESS AND IMPLIED POWER TO ISSUE. 449 issuance of such bonds provides for a submission of the ques- tion to popular vote, and authorizes their issuance only when favored by a majority of the electors or taxpayers of the mu- nicipality. Validity. Municipal bonds, being generally issued for the purpose of obtaining a loan of money on favorable terms, are made pay- able to bearer and passed by delivery. They are therefore held free from all equities which might exist in favor of the corpora- tion,^^ and the only defense open to the municipality is want of authority for their issuance. ^^ Upon this subject the same considerations are pertinent and rules applicable as have been heretofore set forth in regard to county bonds.^^ roads to and from the city, the authority to issue bonds for the pur- chase of lands for depots would be implied. See Wetzell v. Pa- ducah (C. C.) 117 Fed. 647. 2 5 Citizens' Sav. Bank v. Greenburgh, 173 N. Y. 215. Go N. E. 978. 2 6 Ante, § 24. Clarke v. Northampton. 120 Fed. 661. 57 C. C. A. 123; City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238; Katzenberger v. Aberdeen, 121 U. S. 172, 7 Sup. Ct. 947, 950, 30 L. Ed. 911; Debnam v. Chitty. 131 N. C. 657, 43 S. K 3; Everett v. School Dist. (C. C.) 109 Fed. 697; Clifton Forge v. Bank. 92 Va. 283, 23 S. E. 284. Where a municipality issues bonds which it had no authority to issue under its charter, it cannot subsequently validate its bonds by ratification. Uncas Nat. Bank v. Superior, 115 Wis. 340, 91 N. W. 1004. 27 Ante, § 24. Fernald v. Gilman (C. C.) 123 Fed. 797; City of Defiance v. Schmidt, 123 Fed. 1, 59 C. C. A. 159; Rondot v. Rogers Tp., 99 Fed. 202, 39 C. C. A. 462; Edwards v. Bates County (C. C.) 117 Fed. 526: City of Beatrice v. Edminson, 117 Fed. 427. 54 C. C. A. 601; King v. Superior, 117 Fed. 113. 54 C. C. A. 499; Glenn v. Wray, 126 N. 0. 730, 36 S. E. 167; Brenham v. Bank, 144 U. S. 173. 12 Sup. Ct. 559, 36 L. Ed. 390. Tng.Corp. — 29 450 DEBTS, FUNDS, AND ADMINISTRATION. (Ch. 17 MUNICIPAL WARRANTS. 152. The current indebtedness of a municipality is usually evidenced by ivarrants or orders, wbicb tbe municipal- ity bas inherent power to issue tbrougb its officers. Municipal orders or warrants are informal checks or drafts by one municipal officer upon another for the payment of a certain sum of money. ^^ They do not constitute municipal securities, but are merely conveniences in municipal adminis- tration of its finances.^' These warrants are usually not ne- gotiable,'" and do not bear interest.^^ They are not intended to be used as currency, though they are assignable; ^^ but in the hands of any person the city is entitled to all equities against the original payee.^^ It is expected that they will be 28 CLARK V. DES MOINES, 19 Iowa, 199, 87 Am. Dec. 423; Bull V. Sims, 23 N. Y. 570. ^9 School Dist. Tp. v. Lombard, 2 Dill. (U. S.) 493, Fed. Cas. No. 12,478; Dana v. San Francisco, 19 Cal. 486. 30 Hubbell v. Custer City, 15 S. D. 55, 87 N. W. 520; First Nat. Bank V. Gates, 66 Kan. 505, 72 Pac. 207, 97 Am. St. Rep. 383; City of Hammond v. Evans, 23 lud. App. 501, 55 N. E. 784; Goodwin v. East Hartford, 70 Conn. 18, 38 Atl. 876; Bardsley v. Sternberg, 17 Wash. 243, 49 Pac. 499; Watson v. Huron. 97 Fed. 449. .38 C. C. A. 264; CLARK v. DES MOINES, 19 Iowa, 199, 87 Am. Dec. 423. 31 City of Pekin v. Reynolds, 31 111. 529, S3 Am. Dec. 244; South Park Com'rs v. Dunlevy. 91 111. 49. They may, however, draw interest after presentation, demand for payment, and refusal. Fernandez v. New Orleans, 42 La. Ann. 1, 7 South. 57. But see Kenyon v. Spokane, 17 Wash. 57, 48 Pac. 783; City of Quincy v. Warfield, 25 111. 317, 79 Am. Dec. 330. 3 2 Grayson v. Latham, 84 Ala. 546, 4 South. 200; Clark v. Polk Comity, 19 Iowa, 248; Brown v. Jacobs, 77 Wis. 27, 45 N. W. 679. 33 Gilman v. Gilby, 8 N. D. 627, 80 N. W^ 889, 73 Am. St. Rep. 791; Casey v. Pilkington, S3 App. Div. 91, 82 N. Y. Supp. 525; Hubbell V. Custer City, 15 S. D. 55, 87 N. W. 520 ; Speer v. Board, 88 Fed. 749, ;;2 C. C. A. 101; Matthis v. Cameron, 62 Mo. 504. A holder of city warrants h.is only the rights of the original payee. i J § 153} FUNDS. 451 paid out of current taxes,^* and therefore they rarely exceed them in amount. They may be the basis of action agamst the municipality, but not until after presentation for payment and refusal.^ ^ FUNDS. 153. Municipal revenues are usually divided into funds AvMch represent tlie various sums of money appropriated by the council for the payment of specified kinds of in- debtedness; e. g., a school fund, interest fund, street fund, sinking fund, and the like. The warrants of the municipality are usually drawn upor. some special fund, and are to be paid out of that fund in the order in which they are presented and accepted by the dis- bursing officer.^" If the fund be exhausted, such warrant is not then payable out of other money in the municipal treas- ury,^ '^ but may be payable out of the same fund the following year.'" since the rules pertaining to negotiable instruments do not apply. West Philadelphia Title & Trust Co. v. Olympia, 19 Wash. 150, 52 Tac. 1015. 3 4 MAYOR OF NASHVILLE v. RAY, 19 Wall. (U. S.) 477, 22 L. Ed. 164; Shannon v. Huron, 9 S. D. 356, 69 X. W. 598. 3 5 Freeman v. Huron, 10 S. D. 368, 73 N. W. 260; Travelers' Ins. Co. V. Denver, 11 Colo. 434, 18 Pac. 556; Quaker City Nat. Bank v. Tacoma, 27 Wash. 259, 67 Pac. 710; International Bunk v. Franklin County, 65 Mo. 105, 27 Am. Rep. 261; Varner v. Nobleborough, 2 Greenl. (Me.) 126, 11 Am. Dec. 48; City of Pekin v. Reynolds, 31 111. 529, 28 Am. Dec. 244. 4 6 Bardsley v. Sternberg, 18 Wash. 612, 52 Pac. 251; La France Fire Engine Co. v. Davis, 9 Wash. 600, 38 Pac. 154; Hubbell v. Cus- ter City, 15 S. D. 55, 87 N. W. 520; Quaker City Nat. Bank v. Ta- coma, supra; Northwestern Lumber Co. v. Aberdeen, 22 Wash. 404, GO Pac. 1115; Shannon v. Huron, 9 S. D. 356, 69 N. W. 598; Benson V. Carmel, 8 Greenl. (Me.) 112. 3T McCullough v. Mayor, 23 Wend. (N. Y.) 458. Warrants issued by a city for street improvements, to be paid out 3s Western To^vn Lot Co. v. Lane, 7 S. D. 1, 62 N. W. 982; Phillips V. Reed, 107 Iowa, 331, 76 N. W. 850. i 452 DEBTS, FUNDS, AND ADMINISTRATION. (Ch. 17 Specific FiDids. These separate funds represent the assessment and appro- priation of annual revenues to specific objects, and are severally devoted to those purposes.^® The financial agents or officers of the corporation must administer those funds in accordance with the general rules of the council setting them apart to specific purposes.*** They have no power to divert these funds to different objects, and may be liable for so doing.*^ RIGHTS OF CREDITORS. 154. Creditors may by contract obtain a vested interest in municipal funds so tbat tbe same cannot be taken from tliem eitber by municipal or legislative action. It often happens in the administration of municipal affairs that contractors doing work of improvement for the municipal- ity have been promised compensation out of certain municipal funds; or that a loan of money has been obtained upon the credit of some specific municipal fund ; or that creditors of the municipality have been induced to refund their existing obliga- tions at a lower rate of interest, or even to reduce the principal of the debt, upon guaranty of payment out of some specific source of municipal revenue. This stipulation may appear of a special fund, cannot be collected against the city generally, though the remedy to collect from the special fund is lost. Wilson V. Aberdeen, 19 Wash. 89, 52 Pac. 524. 39 People V. Wood, 71 N. Y. 371; Bates v. Porter, 74 Cal. 224, 15 Pac. 732. 40 Schultze V. Manchester, 61 N. J. Law, 513, 40 Atl. 5S9; State V. Cook, 43 Neb. 318, 61 N. W. G93; Boro v. Phillips Co., 4 Dill. 21G, Fed. Cas. No. 1,6U3; Priet v. Reis, 93 Cal. 85. 28 Pac. 798. When a draft or warrant drawn by the proper otiicer, and in due form, is presented to a treasurer, it is no part of his duty to inquire into the legality of the consideration for which it was given. Wolf V. Oiler, 16 Pa. Co. Ct. R. 235. 41 Blair v. Lantry, 21 Neb. 247, 31 N. W. 790; City of East St. Louis V. Flaunigen, 34 111. App. 596. See Bates v. Porter, 74 Cal. 224, 15 Pac. 732; Priet v. Reis, 93 Cal. 85, 28 Pac. 798. § 154) RIGHTS OF CREDITORS. 453 either in the contract or the municipal ordinance, or the statute under which the action is taken. In all such cases, unless the fund pledged is strictly governmental in its nature, so as to be incapable of being pledged, ^^ the creditor obtains a vested in- terest in the fund,*^ which is protected by the contract clause of the federal Constitution ; and his right cannot be impaired by subsequent legislation, either by the state or the municipal- ity.** Sinking funds have been held to be peculiarly within the protection of this constitutional provision, and any legislatioi void which tends to impair the creditor's contractual security.*'* The same doctrine may be applied with equal force to any other special municipal fund which has been likewise pledged as security for municipal debt,*^ though in some cases the creditor has been denied the full measure of this constitutional protection.*^ But a pledge of the entire municipal revenues, or of the ordinary revenues employed in performing strictly governmental functions, would be obviously void as an unwar- ranted surrender of sovereign power; *^ in other words, such 42 Illinois Trust & Savings Bank v. Arkansas City, 76 Feci. 271, 22 C. C. A. 171, 34 L. R. A. 518; DAVIS V. NEW YORK, 14 N. Y. 506, 67 Am. Dec. 186. 43 PORT OF MOBILE v. WATSON, 116 U. S. 289, 6 Sup. Ct. 308. 29 L. Ed. 620; Louisiana v. Pilsbury, 105 U. S. 278, 26 L. Ed. 1090; WOLFF V. NEW ORLEANS, 103 U. S. 358, 20 L. Ed. 395; Goodale V. Fennell, 27 Ohio St. 426, 22 Am. Rep. 321. 4-1 City of Memphis v. U. S., 97 U. S. 293, 24 L. Ed. 920; SHAP- LEIGH v. SAN ANGELO, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310. 45 Board of Liquidators of City Debts v. Municipality, 6 La. Ann. 21; KELLY v. MINNEAPOLIS, 63 Minn. 125, 65 N. W. 115, 30 L. R. A. 281. 40 VON HOFFMAN v. QUINCY, 4 Wall. (U. S.) 535, 18 L. Ed. 403; City of Galena v. Amy. 5 Wall. (U. S.) 705, 18 L. Ed. 560; WOLFF V. NEW ORLEANS, 103 U. S. 358, 26 L. Ed. 395. 4T City of St. Louis v. Sheilds, 52 Mo. 351. 4R Milhau V. Sharp, 27 N. Y. 611, 84 Am. Dec. 314; Gale v. Kala- mazoo, 23 Mich. 344, 9 Am. Rep. 80; Brick Presbyterian Church Corp. V. Mayor, 5 Cow. (N. Y.) 538; Ritteuhouse v. Mayor. 25 Md. 330; Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518. 454 DEBTS, FUNDS, AND ADMINISTRATION. (Cll. 17 a contract would be void as against public policy, and there- fore not protected by the federal Constitution.** EXPENSES. 155. Municipal expenses include all such items as are inci- dental to the proper exercise of corporate functions in administering the government of the municipality, and, if ivithin the scope of the municipal poxeers, are mithin the discretion of the governing body. The details of administration in a municipality are so varied and numerous as to render classification or special regulation impossible. They are, however, generally committed to the discretion of the municipal council,^" but in some instances to that of special officers. ^^ For example, it has been held that a stenographer's fees for reporting, under the direction of the city attorney, the trial of a case against a police officer, was a proper item of municipal expense, though the city was not a party to the suit, since such matters must be left to the dis- cretion of the city attorney, and he was acting within the ap- parent scope of his authority.^^ But the discretion vested in the council will not validate a claim for items of expenditure obviously not municipal, such as giving banquets,^^ providing 49 Sandusky City Bank v. Wilbor, 7 Ohio St. 481; Brewster v. Hougli, 10 N. H. 143; LYNN v. POLK. 8 Lea (Tenn.) 121; East Sag- inaw Mfg. Co. V. East Saginaw, 19 Mich. 2,59, 2 Am. Rep. 82; Brain- ard V. Colchester, 31 Conn. 410; Wilmington & W. R. Co. v. Reid, 64 N. C. 22G; Mott v. Railroad Co., 30 Pa. 9, 72 Am. Dec. 664. 50 1 Dill. Mun. Corp. § 94; Kendall v. Frey, 74 Wis. 26, 42 N. W. 466, 17 Am. St. Rep. 118; White v. Mayor, 119 Ala. 476, 23 South. 999. Ante, § 71. 51 Ante, § 65. 52 City of Chicago v. Williams, SO 111. App. 33. 63 Austin V. Coggeshall. 12 R. I. 329, 34 Am. Rep. 648; Common- wealth V. Gingrich, 21 Pa. Super. Ct. 286. § 156^ BUDGET. 455 entertainment for guests,'* buying military uniforms,'' ex- penses of delegates to a municipal convention,^° and the like.^' BUDGET. 156. A classified statement of annual appropriation of mn- nicipal revenues, commonly called a budget, is re- quired in many states, as the measure of laivfnl mu- nicipal expenditures during the year. The object of this budget, obviously, is to ensure an orderly, systematic, and economical administration of municipal affairs, and the executive officers of the municipality are required to conform their operations to this budget, and limit their ex- penditures to the sum appropriated to the various departments 64 Black V. Detroit, 119 Mich. 571, 78 N. W. 660. 5 5 Claflin V. Hopliinton, 4 Gray (Mass.) 502. B6 Waters v. Bonvouloir, 172 Mass. 286, 52 N. E. 500. 67 City of Tyler v. L. L. Jester & Co. (Tex.) 74 S. W. 359; State ex rel. Crowe v. St. Louis, 174 Mo. 125. 73 S. W. 623, 61 L. R. A. 593; In re Town of Eastchester, 53 Hun, 181, 6 N. Y. Supp. 120; King- man V. Brockton, 153 Mass. 255, 26 N. E. 998, 11 L. R. A. 123; The Liberty Bell, 23 Fed. 843; City of New London v. Brainard, 22 Conn. 556; HODGES v. BUFFALO, 2 Denio (X. Y.) 110; Greenough v. Wakefield, 127 Mass. 275. Where a city council, without authority, authorized the payment of a claim of a member for expenditures made by him in company with others on a trip to various cities ifivestigating municipal af- fairs in pursuance of an ordinance, the city comptroller properly refused to approve a warrant drawn in payment of such claim. James v. Seattle, 22 Wash. 654, 62 Pac. 84, 79 Am. St. Rep. 957. But charges for labor and material fuviiislied in the building of a city jail, services in guarding quarantined patients, publishing no- tice and printing ballots of election, feeding impounded stock, board- ing city prisoners, insurance on city buildings, services in making assessment rolls, postage and stationery for officers, city printing and necessary expenses of the city clerk, are held valid, though the city had exceeded the limit of its indebtedness, as such were necessarily expenses inem-red in maintaining its existence. Gladwin V. Ames, 30 Wash, 608, 71 Pac. 189. 456 DEBTS, FUNDS, AND ADMINISTRATION. (Cll. 17 or kinds of municipal work.^* But the courts of the various states express diverse views as to the object of such statute and the municipal power thereunder. In Illinois ^® and Col- orado ®° municipalities are held to be limited in expenditure to the budget appropriations. In Connecticut *^ it is held that the statute is intended for protection of the cit}^ against its officers, and that the council may incur expenditures not provided for by the budget; and in Nebraska®^ the budget limit has been held not to include money authorized to be borrowed for spe- cific purpose on sanction of the legal voters. It has also been held that unwarranted expenditures for municipal objects may be ratified by the council, and a claim therefor be thus vali- dated." B8 Spaulding v. Arnold, 125 N. Y. 194, 26 N. E. 295; State ex rel. Barber Asphalt Pav. Co. v. New Orleans, 40 La. Ann. 299, 3 South. 584. The amount placed on the budget for the annual expenses of a municipal corporation when collected by taxes levied therefor must be applied to the purposes specified In the budget. Parish Board of School Dii-ectors v. Shreveport, 47 La. Ann. 1310, 17 South. 823. See Badger v. New Orleans, 49 La. Ann. 804, 21 South. 870, 37 L. R. A. 540. 69 Culbertson v. City of Fulton, 127 111. 30, 18 N. E. 781. «o Sullivan v. Leadville, 11 Colo. 483, 18 Pac. 736. 61 Whitney v. New Haven, 58 Conn. 450, 20 Atl, 666. 6 2 State V. Martin, 27 Neb. 441, 43 N. W. 244. 6 3 Barrett v. Mobile, 129 Ala. 179, 30 South. 36, 87 Am. St. Rep. 54; MILLS V. GLEASON, 11 Wis. 470, 78 Am. Dec. 721; City of St. Louis, to Use of Creamer, v. Clemens, 52 Mo. 133; Burrill v. Boston. 2 Cliff. 590, Fed. Cas. No. 2,198; Kunkle v. Franklin, 13 Minn. 127 (Gil. 119), 97 Am. Dec. 226; Bolles v. Brimfield, 120 U. S. 759, 7 Sup. Ct. 736, 30 L. Ed. 786. But where it is in excess of the constitutional limitation it can- not be ratified. Balch v. Beach (Wis.) 95 N. W. 132. See, also, McGillivray v. District, 112 Wis. 354, 88 N. W. 310, 58 L. R. A. 100, 88 Am. St. Rep. 969, g 157) CLAIMS. 457 CLAIMS. 157. Claims against a municipality ex contractu do not be- come actionable until after due and regular presenta- tion and deinand for payment, and refusal by tbe proper officer. While there is lack of entire uniformity in the decisions of the various states with regard to the enforcement of con- tractual claims against a municipality, the general doctrine based upon the nature of such claim and the necessities of municipal administration is as above stated.®* In the manage- ment of municipal affairs some ofticer is intrusted with the duty of auditing claims ; and when the claims are approved, or an accord has been reached, warrants are drawn for payment upon the municipal treasury. After such warrant has been pre- sented and payment refused, the claimant has a right of action thereon; ®° but the warrant is not conclusive upon either party.®® The municipality may defend against the warrant upon the ground that the claim was ultra vires, fraudulent, or unfounded;®'^ and the claimant, at any time before assigning or receiving payment of the warrant, may waive this acknowl- edgment of indebtedness and sue the municipality upon his «4 Burdick v. Richmond, 16 R. I. 502. 17 Atl. 917; Trustees v. White, 48 Ohio St. 577, 29 N. E. 47; Jones v. Albany, 62 Hun. 353, 17 N. Y. Supp. 232; Bass Foundry & Machine Works v. Board, 115 Ind. 234, 17 N. B. 593. 65 City of Pekiu v. Reynolds, 31 111. .529, 28 Am. Dec. 244; Varnet T. Nobleborongh, 2 Me. 126, 11 Am. Dec. 4S; Saunders v. Fitzgerald, 113 Ga. 619, 38 S. E. 978. 60 Allen V. Lafayette, 89 Ala. 641, 8 South. .30, 9 L. R. A. 497; Thomas v. Richmond, 12 Wall. (U. S.) 349. 20 L. Ed. 453; Taft v. Pittsford, 28 Vt. 2S6; Varner v. Xoblobovougli, supra. 67 Trowbridge v. Schmidt, 82 .Miss. 475. 34 South. 84; CITY OF NASHVILLE v. RAY, 19 Wall. (U. S.) 468. 22 L. Ed. 164; Cheeney V. Brookfield, 60 Mo. 53; Salamanca Tp. v. Bank, 22 Kan. 696; First Xat. Bank v. Board, 106 N. Y. 488, 13 N. E. 439; CLARK v. DES MOINES, 19 Iowa, 199, 87 Am. Dec. 423. 458 DEBTS, FUiNDS, AND ^DMIMSTRATION. (Cll. 17 original claim. ^* After payment of the warrant neither party can have any action upon the subject-matter, except upon grounds of equity which will warrant the unsettling of a liq- uidated claim. *^ The creditor having a warrant upon a special fund may demand payment out of the same, and if payment is refused he may enforce it by mandamus.^" 6 8 Crawford Co. v. Wilson, 7 Ark. 214; Dalrymple v. Whitting- ham, 26 Vt. 347; Dyer v. Covington Tp., 19 Pa. 200; Varner v. Nobleborough, supra; Allen v. Lafayette, supra. 6 9 Sweet V. Carver Co., 16 Minn. 106 (Gil. 96); Crawford Co. v. Wilson, supra; Webster v. Douglas Co., 102 Wis. 181, 77 N. W. 885, 72 Am. St. Rep. 870. TO Ray V. Wilson, 29 Fla. 342, 10 Soutb. 613, 14 L. R. A. 773; State V. Gaudy, 12 Neb. 232, 11 N. W. 296; People v. Wendell, 71 N. Y. 171; Bush V. Geisy, 16 Or. 355, 19 Pac. 123; German-American Sav. Bank v. Spokane, 17 Wash. 315, 49 Pac. .542, 38 L. R. A. 259; Wilson V. Aberdeen, 19 Wash. 89, 52 Pac. 524; Northwestern Lumber Co. v. Aberdeen, 22 Wash. 404, 60 Pac. 1115 (in which it was held that a city is liable in damages to a liolder of its warrants, payable out of a special assessment to be collected by the city, for the payment of warrants of subsequent issue and number before those of suck holder); City of Greencastle v. Allen, 43 Ind. 347; Voorhies v. Hous- ton, 70 Tex. 331, 7 S. W. 679. Where warrants are drawn, against a city with an express pro- vision that they shall be payable from a special fund to be raised by levy on certain lands, the holder must resort to mandamus to compel such levy, and cannot compel the city to pay the same out of the general funds, unless the levy has been made, and the money to pay the warrants is in the city treasury. Turner v. Guthrie (Okl.) 73 Pac. 283. But the holder of warrants need not resort to mandamus to com- pel the treasurer to act, an action at law against the city being juaintainable. First Nat. Bank v. Arthur, 10 Colo. App. 283, 50 Pac. 738; Raton Water Works Co. v. Raton, 9 N. M. 70, 49 Pac. 898; Gold- smith v. Baker City, 31 Or. 249, 49 Pac. 973; Travelers' Ins. Co. v. Denver, 11 Colo. 434, 18 Pac. 556. 'W\ I § 168) APPROPRIATION. 459 APPROPRIATION. 158. Appropriation, being the authoritative application by the council of municipal revenues to a distinct ol>ject or definite purpose, fi^es the rule of actioa governing all officers in the handling and disbursement of the municipal revenues. The classification of municipal funds with reference to the various departments of municipal business, being essentially for orderly administration, the legislative act of appropriation operates to devote the municipal funds to the specific objects, and to require of all officers handling municipal funds a strict compliance with the municipal ordinance.'^ ^ No discretion is left to the financial officer in disbursing the municipal reve- nues;''^ the funds appropriated to a specific object must be applied solely to it.'^^ The duties of the disbursing officer are purely ministerial, and his only safety is in obedience to the appropriation.'* It has been held competent for the council or for the legislature to amend the ordinance of appropriation and divert the funds to other municipal objects when this does not impair a contract obligation.''^ Whatever be the statute or ordinance of appropriation, the disbursing officer must act in obedience to if® 71 Baker v. Seattle. 2 Wash. St. 576, 27 Pac. 462, 7 2 First Xat. Bank v. Arthur, 10 Colo. App. 2S3. 50 Pac. 738: State V. Cook, 43 Neb. 318, 61 N. W. 693; Flick v. Harpham, 13 Pa. Co. Ct. R. 648; City of Bonham v. Taylor, 81 Tex. 59, 16 S. W. 555; Wilson V. Neal, 23 Fed. 129. 7 3 Aflfeld V. Detroit, 112 Mich. 500, 71 N. W. 151; Priet v. Reis, 93 Cal. 85, 28 Pac. 798. T4 Nolan Co. v. Simpson, 74 Tex. 218, 11 S. W. 1098; State v. Corn- ing, 44 Kan. 442, 24 Pac. 9G6. 75Creighton v. San Francisco, 42 Cal. 446; Crittenden County Court V. Shanks, 88 Ky. 475, 11 S. W. 468; Sangamon Co. v. Spring- tield, 63 III. 66; Davock v. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783. 76 City of East St. Louis v. Flannigen. 34 111. App. 596; Dorsey Co. V. Whitel.ead, 47 Ark. 205, 1 S. W. 97. 460 TAXATION. (Ch. 18 CHAPTEH XVIII. TAXATION. 159. Taxation, Source of Power. 160. Legislative Control. 161. Public Purpose Only. 162. Judicial Question. 163. What are Public Purposes. 164. Apportionment of Taxes. 165. Subjects of Taxation. 166. State May Impose. 167. Limitation of Express Power. 168. Implied Power. 169. License Tax. 170. Power Exercised — How and by Whom. 171. Assessment and Collection. 172. Taxation for Creditors. TAXATION, SOURCE OF POW^ER. 159. Taxation is an attribute of sovereignty. Tlie poxrer is not an essential function of a municipal corporation, but may be delegated to it by tbe state, either ex- pressly or by necessary implication. Government implies expenditvire of money. Expenditures demand revenue. Revenue requires taxation. Taxation is in- herent in the state, as an essential attribute of sovereignty.^ It is the method whereby those receiving the protection of gov- ernment are compelled to contribute to its support. It is pri- marily a legislative function, and all taxation is based upon legislative authority ; ^ but the legislature may delegate this 1 State V. Bristol, 109 Tenn. 315, 70 S. W. 1031; McCULLOCH v. MARYLAND, 4 Wheat. (U. S.) 316, 4 L. Ed. 579; Providence Bank V. Billings, 4 Pet. (U. S.) 514, 7 L. Ed. 939. 2 The only warrant for the imposition of a tax or burden upon the citizen or his property without his consent must be found in some § 169) TAXATION, SOURCE OF POWER. 461 power to local subdivisions of the state as governmental agen- cies,^ and thus empower them to perform this sovereign func- tion. Few, if any, American municipalities exist without this power, but it is not inherent in a municipality as an essential attribute of incorporation.* The state might incorporate a positive law, and it cannot be enforced unless imposed in the man- ner authorized by statute. Queens County Water Co. v. Mon- roe, 83 App. Div. lOri, 82 N. Y. Supp. 610. The power of taxation is purely legislative, and the courts can- not inquire into the necessity of a tax levy made by a municipality within the limits prescribed by the Constitution. Mayfield Woolen Mills V. Mayfield, 22 Ky. Law Rep. 1676, 61 S. W. 43. The legislative power is supreme in the selection of objects for taxation, determining the amount of taxes to be levied thereon and the purposes thereof, subject to the constitutional limitation that taxes can be imposed only for public purposes, and that taxation must be uniform. State v. Thorne, 112 Wis. 81, 87 N. W. 797, 55 L. R. A. 956. See Cooley, Const. Lim. (6th Ed.) 587. 3 Smith V. Howell, 60 N. J. Law, 384, 38 Atl. 180; Pioneer Iron Co. V. Negaunee, 116 Mich. 430, 74 N. W. 700; Carter v. Wade, 59 N. J. Law, 119, 35 Atl. 649; Grunewald v. Cedar Rapids, 118 Iowa, 222, 91 N. W. 1059; State v. Des Moines, 103 Iowa, 76, 72 N. W. 039, 39 L. R. A. 285, 64 Am. St. Rep. 157; Edgerton v. Water Co., 129 N. C. 93, 35 S. E. 243, 48 L. R. A. 444; Wells v. Savannah, 107 Ga. 1, 32 S. E. 669. A state, having power to tax property for state purposes, may con- fer on one of its municipalities the power to tax the same property for local purposes. Henderson Bridge Co. v. Henderson. 173 U. S. 592, 19 Sup. Ct. 553, 43 L. Ed. 823; HOPE v. DEADERICK, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; LARAMIE COUNTY v. ALBANY COUNTY, 92 U. S. 307, 23 L. Ed. 552; Rogers v. Burlington, 3 Wall. (U. S.) 603, IS L. Ed. 79; Langhorne v. Robinson, 20 Grat. (Va.) 661; Stetson V. Keuipton, 13 Mass. 272, 7 Am. Dec. 145; Daily v. Swope, 47 Miss. 367; Whiting v. West Point, 88 Va. 905, 14 S. E. 698, 15 L. R. A. 860, 29 Am. St. Rep. 750, note. But the power of taxation may not be delegated to any special committee. Keeler v. Westgate, 10 Pa. Dist. R. 240. 4 Cooley, Tax'n (2d Ed.) 464; Town of Drummer v. Cox. 165 111. 648. 46 N. E. 716; Minot v. West Roxbury, 112 Mass. 1. 17 Am. Rep. 52; State ex rel. Aull v. Shortridge, 56 Mo. 126; State v. Maysville, 462 TAXATION. (Ch. 18 municipality, and supply it with reventte out of its own treas- ury to meet the expenditures necessary for the performance of its municipal functions. But the rule is otherwise in America, and the almost universal custom is to confer upon a municipal- ity the power of taxation. This may be granted in express terms, or it may be implied as necessary for the exercise of the powers expressly granted.^ Thus, if a municipality is ex- pressly authorized to borrow money, the power to levy taxes to raise revenue to meet the obligation is necessarily implied." The exercise of this power by municipalities in America is in strict accordance with the Anglo-Saxon instinct of home rule, and the genius of our free institutions. LEGISLATIVE CONTROL. 160. The power of municipal taxation is subject to the sov- ereign -will, and may be granted, enlarged, abridged, or revoked ivben and as tbe legislature shall deem best. Since taxation is a sovereign power, a municipality, being r dependent and derivative body, cannot hold such power in 12 S. C. 76; Lott v. Ross, 38 Ala. 156; Vance v. Little Rock, 30 Ark. 435; Greeu v. Ward, 82 Va. 324; CLARK v. DAVENPORT, 14 Iowa. 494; Taylor v. Donner, 31 Cal. 480; Commiss'oners of Town of Ashe- ville V. Means, 29 N. C. 406; Burnes v. Atchison, 2 Kan. 454; In re Second Ave. M. E. Churcli, 66 N. Y. 395; City of Fairfield v. Ratcliff. 20 Iowa, 396; Henderson v. Baltimore, 8 Md. 352. But see UNITED STATES V. NEW ORLEANS, 98 U. S. 381, 25 L. Ed. 225. 5 State V. Bristol, 109 Tenn. 315, 70 S. W. 1031; Howell v. Buffalo. 15 N. Y. 512; MAYS v. CINCINNATI, 1 Ohio St. 268; City of Phila- delphia V. Flanigeu, 47 Pa. 21; Commissioners of Town of Asheville V. Means, 29 N. C. 406 ; Ham v. Sawyer, 38 Me. 37. G Slocomb V. Fayetteville, 125 N. C. 362, 34 S. E. 436; Ralls County Court V. United States, 105 U. S. 733, 26 L. Ed. 1220; UNITED STATES V. NEW ORLEANS, 98 U. S. 381, 25 L. Ed. 225; Wright v. Chicago, 20 111. 252; Mayor, etc., of City of Annapolis v. Harword, 32 Md. 471, 3 Am. Rep. lUl. § 161) PUBLIC PURPOSE ONLY. 463 perpetuity.'' It is entirely subject to the legislative control. The legislature, at the creation of the corporation, may grant or withhold this power, as to it shall seem best. It may give a small or large measure of the power; and after the original grant it may enlarge,- curtail, or wholly revoke it, subject onl}' to the vested rights of creditors.^ The municipality is the agent only. The state is the principal ; and it is for the prin- cipal, not for the agent, to determine the nature, number, and extent of the powers to be exercised by the agent.* PUBLIC PURPOSE ONLY. 161. Taxes may be levied by a municipality for public pur- poses only. The legislature is the exclusive judge as to the rate of tax- ation to be imposed upon the state by itself; ^° and such meas- ure of taxing power as it possesses it may confer upon a mu- 7 City of New Orleans v. Water Works Co., 142 U. S. 79, 12 Sup. Ct. 142, 35 L. Ed. 943; Williamson v. New Jersey, 130 U. S. 189, 9 Sup. Ct. 453, 32 L. Ed. 915. 8 Broughton v. Pensacola, 92 U. S. 266, 23 L. Ed. 896: MERI- WETHER Y. GARRETT, 102 U. S. 472, 26 L. Ed. 197; Aspinwall v. Daviess County, 22 How. (U. S.) 364, 16 L. Ed. 206; VON HOFF- MAN V. QUINCY, 4 Wall. (U. S.) 535, 18 L. Ed. 403; UNITED STATES V. NEW ORLEANS, 103 U. S. 358, 26 L. Ed. 395; Common- wealth V. Cullen, 13 Pa. 133, 53 Am. Dec. 450; State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566; Inhabitants of North Yar- mouth V. Skillings, 45 Me. 133, 71 Am. Dec. 530. » City of St. Paul t. Laidier, 2 Minn. 190 (Gil. 159), 72 Am. Dec. 89; Spaulding v. Lowell, 23 Pick. (Mass.) 71; Fitch v. Pinckard, 4 Scam. (111.) 78; State v. Bristol, 109 Tenn. 315, 70 S. W. 1031. 10 McCULLOCII V. MARYLAND, 4 Wheat. (U. S.) ^1^ 428-430, 4 L. Ed. 579; W'eston v. Charleston, 2 Pet. (U. S.) 449, J L. Ed. 481; Providence Bank v. Billings, 4 Pet. (U. S.) 514, 561, 7 L. Ed. 939; Western Union Telegraph Co. v. Mayer, 28 Ohio St. 521; SIIARP- LESS V. PHILADELPHIA, 21 Pa. 147, 59 Am. Dec. 759; Herrick V. Randolph, 13 Vt. 525; PEOPLE v. BROOKLYN, 4 N. Y. 419, 55 Am. Doc. 266; Wingate v. Sluder, 51 N. C. 5.32. 464 TAXATION. (Ch. 18 nicipality.^^ The only limit, therefore, as to the amount of municipal taxes to be raised for municipal purposes must be found in the civic conscience and sense of responsibility of the governing body of the municipality. The citizens have en- trusted the governing bodies with this power, and they may exercise it to the full legislative limit, provided, always, that they employ it only for public purposes.^^ If the power is perverted to private purposes, it is no longer taxation ; it is extortion. ^^ And it matters not whether the malversation is in small or in large sums ; it is an abuse of sovereign power, amounting to robbery under the forms of law. The touchstone of all taxation, municipal and state, in our country, is not, then, the rate of the levy, but the object of the appropriation.^* 11 Baldwin v. Montgomery, 53 Ala. 437; Bradley v. McAtee, 7 Busb (Ky.) 067, 3 Am. Kep. 309; Harrison v. Vicksburg, 3 Smedes & M. (Miss.) 581, 41 Am. Dec. 633; City of Logansport v. Seybold, 59 Ind. 225. 12 United States v. Capdevielle, 118 Fed. 809, 55 C. C. A. 421; Baltimore & O. S. W. R. Co. v. People, 200 111. 623, 66 N. E. 246; Bit- ing V. Hickman, 172 Mo. 237, 72 S. W. 700; Wisconsin Industrial School V. Clark County, 103 Wis. 651, 79 N. W. 422; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 055, 22 L. Ed. 455; Wilkin- son V. Cbeathani, 43 Ga. 258; Brewer Brick Co. v. Inhabitants of Brewer, 62 Me. 62, 16 Am. Rep. 395; Curtis' Adm'r v. Whipple, 24 Wis. 350, 1 Am. Rep. 187; People v. Batchellor, 53 N. Y. 128, 13 Am Rep. 480; CITY OF LOWELL v. BOSTON, 111 Mass. 454, 15 Am. Rep. 39; People v. Austin, 47 Cal. 353. The power of the legislature to levy or to authorize the levy of a tax, and to create or to authorize the creation of a public debt to be paid by taxation, is limited to its exercise for a public purpose. Dodge V. Mission Tp., 107 Fed. 827, 46 C. C. A. 661, 54 L. R. A. 242; Sutherland-Innes Co. v. Evart, SO Fed. 597, 30 C. C. A. 305. See Phoenix Assur. Co. v. Fire Dept., 117 Ala. 031, 23 South. 843, 42 L. R. A. 468. 13 In re Washiugton Ave., 69 Pa, 352, 8 Am. Rep. 255; Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Morford v, Unger, 8 Iowa, 82; Talbot V. Pludsou, 16 Gray (Mass.) 417; Weismer v. Douglas, 64 N. Y. 91, 21 Am. Rep. 586; SHARPLESS v. PHILADELPHIA, 21 Pa, 147, 59 Am. Dec. 759. i4PIitchcock v. St. Louis, 49 Mo. 484; Rcddall v. Bryan. 14 Md. § 162) JUDICIAL QUESTION. 465 So long as the public is to be the beneficiary, it is lawful taxa- tion ; but when it is perverted to personal uses it is lawless confiscation; and this is true whether it be done openly, and in defiance of the public right (which is rare), or secretly, under plausible pretext of public benefit (which has not been uncom- mon in American municipalities). JUDICIAL QUESTION. 162. Whether the purpose is public or private is for ultimate decision by the courts. This wholesome rule of law is the sure safeguard of citizens against lawless oppression. If the legislature or common coun- cil having unlimited power to levy taxes for public purposes, had also unlimited power to determine what was a public use, there would be no protection for private property in state or city.^° Taxes could be levied and appropriated ad libitum, and the citizens might be at the mercy of faithless representa- tives. Such unbridled power would be repugnant to the Amer- ican ideal of the supremacy of law. It would set at naught our system of checks and balances in government, and nulHfy our Bill of Rights. Opinion of Common Council. The facts of any case being conceded or proven, it is then for the courts to declare the law; and, while the common 444, 74 Am. Dec. 550; In re Central Park Com'rs, G3 Barb. (N. Y.) 282; Burden v. Stein, 27 Ala. 104, 62 Am, Dec. 758; State v. Osaw- kee Tp., 14 Kan. 418, 19 Am. Kep. 99. 15 Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) G55, 22 L. Ed. 455; Tyler v. Beacher, 44 Vt. 651, 8 Am. Rep. 398; People V. Flagg, 46 N. Y. 401; Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Curtis' Adm'r v. Whipple, 24 Wis. 3.j0, 1 Am. Rep. 187; Crowell v. Hopkinton, 45 N. H. 9; Morford v. linger, 8 Iowa, 82; SHARPLESS V, PHILADELPHIA, supra. ING.COEP.— 30 466 TAXATION. (Ch. IS council of a municipality are empowered in the first instance to express their view of the nature of the tax, their opinion is not conclusive, but may be subjected to the ultimate test of judicial determination.^® If it be doubtful whether the purpose is pub- lic or private, if the courts cannot plainly see that the appro- priation is a perversion of public power to personal uses, they will resolve the doubt in favor of the legislative power, and sustain the facts. ^'^ But if it is obvious that the taxation is intended not for public, but for private, use, no sense of due respect for the co-ordinate branch of government will deter them from declaring such legislation unconstitutional, and such taxation null and void.^* It has accordingly been held that public moneys in a town treasury cannot be distributed among "the inhabitants of the town according to families" ; ^® also that the credit of a town cannot be loaned to a manufacturing firm to induce the location of a manufacturing plant in the 16 Ryerson v. Utley, 16 Mich. 269; Booth v. Woodbury, 32 Conu. 118; Weismer v. Douglas, 64 N. Y. 91, 21 Am. Rep. 586; Nichols v. Bridgeport, 23 Conn. 189, 60 Am. Dec. 636; Grim v. Weissenberg, 57 Pa. 433, 98 Am. Dec. 237; Yale University v. New Haven, 71 Conn. 316, 42 Atl. 87, 43 L. R. A. 490. The decision of the question whether a tax or a public debt is for a public or private purpose is not legislative, but a judicial func- tion. A legislature cannot make a private purpose a public purpose, or draw to itself or create the power to authorize a tax or a debt for such a purpose. Dodge v. Mission Tp., 107 Fed. 827, 46 C. C. A. 6G1, 54 L. R. A. 242. 17 Brodhead v. Milwaukee, 19 Wis. 624, 88 Am. Dec. 711; Litch- field V. Vernon, 41 N. Y. 123; Tyson v. School Directors, 51 Pa. 9; Ferguson v. Landram, 5 Bush (Ky.) 230, 96 Am. Dec. 350; Freeland V. Hastings, 10 Allen (Mass.) 570. 18 Dodge V. Mission Tp., supra; SHARPLESS v. PHILADELPHIA, 21 Pa. 147, 59 Am. Dec. 759; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 215; Feldman v. Charleston, 23 S. C. 57, 55 Am. Rep. 6; Glas- gow V. Rowse, 43 Mo. 479; Weismer v. Douglas, 64 N. Y. 91, 21 Am. Rep. 586; People v. Austin, 47 Cal. 360; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455. 19 Hooper v. Emery, 14 Me. 379. § 162) JUDICIAL QUESTION. 467 town ; ^^ also that a tax on a foreign insurance company for the benefit of disabled firemen was void.^^ On the same principle the proposed issuance of $20,000,000 worth of bonds by the city of Boston to raise money to loan to lot owners for the purpose of rebuilding in the burnt dis- trict in the city after the great fire of 1872 was declared to be null and void.^^ The same ruling had been previously made upon a similar act of the legislature of South Carolina in, regard to the city of Charleston after the fire of 1866.^^ And an act providing for a tax to defray the expenses in- curred in defending unsuccessful prosecutions against city officers for official misconduct was held invalid, as being an attempted exercise of the police power for a private purpose.^* And so an act providing for the appropriation of a sum for the treatment of habitual drunkards in private institutions at the expense of the county was held unconstitutional, as being the imposition of a tax for private purposes. ^^ 20 City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442. 27 L. Ed. 238; Osborne v. Adams County, 109 U. S. 1, 3 Sup. Ct. 150, 27 L. Ed. 835; Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. Ed. 896; Allen v. Jay, 60 Me. 124; 11 Am. Rep. 185; Coates v. Campbell. 37 Minn. 498, 35 N. W. 366; Mather v. Ottawa, 114 111. 659, 3 N. E. 216; Attorney General v. Eau Claire, 37 Wis. 400. 21 Philadelphia Ass'n for Relief of Disabled B^iremen v. Wood, 39 Pa. 73. But an act requiring insurance companies to pay an annual fee to the fire department of Montgomery to enable it to reward superior skill and exertion in its members and provide for sick or disabled members or their families was held not unconstitutional as impos ing a tax for private purposes, even though the fire department bo the direct recipient of it. Phcenix Assur. Co. v. Fire Dept., 117 Ala. 031, 23 South. 843, 42 L. R. A. 468. 2 2 LOWELL V. BOSTON, 111 Mass. 463, 15 Am. Rep. 39. 2 3 Feldman v. Charleston, 23 S. C. 57, 55 Am. Rep. 6. 24 In re Jensen, 44 App. Div. 509, 60 N. Y. Supp. 933. «6 State V. Froehlich, 118 Wis. 129, 94 N. W. 50, 61 L. R. A. 345. 468 TAXATION. (Ch. 18 "WHAT ARE PUBLIC PURPOSES. 163. A general concurrence of judicial opinion includes among public purposes of municipalities 1. The administration of justice. 2. Tlie preservation of peace and order. 3. Tlie protection of property. 4. Tlie facilitation of locomotion and transportation. 5. Tlie preservation of the public Iiealtli. 6. The support of public education. 7. The promotion of public oonifort* 8. The care of the helpless. 0. The reward of civic fidelity and heroism. The question of what is a pubHc and what a private purpose has been repeatedly before the supreme courts of the various states in divers forms, and there is apparent inconsistency in the decisions. This has resulted in some states from failure of the Constitution to forbid the legislature authorizing mu- nicipalities to loan credit to and exempt from taxation indus- trial enterprises of various kinds. But where there is express constitutional provision declaring and enforcing the rule of uniform and equal taxation, public purposes only have been generally, if not universally, recognized and sustained as the basis of the power; and in declaring what are public pur- poses the courts have not been inclined to confine their vision to a narrow view, but have generally adopted and followed the opinion of Judge Black in the celebrated case of Sharpless v. City of Philadelphia.'^ The substance of this decision is thus felicitously stated by an author of repute: ''^ "Taxes may be imposed for roads of all kinds, canals, and bridges, that there may be facilities for transportation of freight and for travel ; for public schools or colleges, that the people may be educated ; for public libraries, that their means of improvement may be increased ; for the poor, the dumb, the blind, the insane, lest they suffer from 26 21 Pa. 147, 59 Am. Dec. 759, »i Burroughs, Tax'n, § 25. § 163) WHAT ARE PUBLIC PURPOSES. 469 want; for the police of the state, in regulations for the pres- ervation of health or the detection of crime; for courts of law, that individual rights may be protected and enforced, and that crime, when detected, may receive its fitting punishment ; for the preservation of peace and the protection of the coun- try from foreign enemies; to aid, encourage, and stimulate commerce, domestic and foreign, by the establishment of mints, postal system, and maintaining navies to keep open the high- way of nations ; to encourage citizens in the defense of their country by suitable rewards and mementos for past servicer in times of war, or by bounties for enlistment for future serv- ices ; and for the promotion of the arts and sciences. For all these matters taxes may be imposed. The purpose is pub- lic. The object is governmental. The money raised and prop- erty purchased is held by the agents of the state for the state. The object is so to regulate the state that all its citizens may enjoy their lives, liberty, and property, and pursue their hap- piness according to the dictates of their own reason." In many cases taxation has been upheld which would resu^ in private benefit because the purpose of the taxation was public, and in others taxation which would confer public ben- efit has been annulled because the obvious purpose of the lev was private. The rule governing the courts in all these case? seems to be that incidental benefits are not to decide the fate of a tax levy, but the obvious purpose of the taxation is to form the basis of the decision. ^^ 2 8 Allen V. Jay, 60 Me. 124, 11 Am. Rep. 1S5; Weeks v. Milwaukee. 10 Wis. 242; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 055, 22 L. Ed. 455; Booth v. Woodbury, 32 Conn. 118; Mills v. Chaiieton, 29 Wis. 431, 9 Am. Rep. 578. Tax for construction of subway held valid, TRIXCE v. CROCKER. 166 Mass. 347, 44 N. E. 446, 32 L, R. A. 610; support of" poor, Louisville & N. R. Co. v. Pendleton County, 90 Ky. 491, 29 S. W. 324; Elizal)eth Water Co. v. Wade, 59 N. J. Law, 78, 35 Atl. 4; Maydwell v. Louisville, 25 Ky. Law Rep. 1062, 76 S. W. 1091, 63 L. R. A. 055. A tax imposed for the purpose of aiding an exposition was held constitutional, as being for the promotion of the public welfare. State V. Cornell, 53 Neb. 556, 74 N. W. 59, 39 L. R. A. 513, 68 Am. 470 TAXATION. (Ch. 18 APPORTIONMENT OF TAXES. 164. The apportionxuent of tlie levy is an essential feature in the sovereign attribute of taxation, and may be exer- cised by the municipality as xirell as by the state. Taxation is a burden to be borne for benefits conferred.^^ The general benefit accruing to citizens from good government calls for contributions from all in proportion to their ability to pay. This is usually determined by the value of their prop- erty w^hich receives the protection of government. Special ben- efits, however, conferred by the state upon particular localities at extraordinary expense, ought not to be paid for by all the citizens of the state, but the expense thereof should in justice fall upon those who receive the benefits.^" Municipalities, therefore, which receive special grants of power, enabling them to obtain particular advantages over the unincorporated por- tions of the state, are properly taxed with the extraordinary expense of conferring these benefits. ^^ St. Rep. 629. But see Hayes v. Douglas County, 92 Wis. 429, 65 N. W. 482, 51 L. R. A. 213, 53 Am. St. Rep. 926. In Missouri, an act imposed a collateral succession tax to create a fund for maintaining free scholarsliips in the university, dis- tributed througlaout the state on competitive examination to appli- cants without means. It was held to he for purely private pur- poses, and void. State ex rel. Garth v. Switzler, 143 Mo. 2S7, 45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653; Same v. Rassieur, Id. And so an act providing that the manufacturers of patent medicine should pay a license, which should be turned into a fund for main- taining free scholarships in the State University for students. C. F. Simmons Medicine Co. v. Ziegenhein, 145 Mo. 368, 47 S. W. 10. 29 Montesquieu, Spirit of Laws, b. 12, c. 30; Marshall, C. J., in Providence Bank v. Billings, 4 Pet. (U. S.) 561, 7 L. Ed. 939; Mills, Pol. Econ. 370-372; 2 Bouv. Law Diet tit. "Taxes." 30 Ruggles, J., in People v. Brooklyn, 4 N. Y. 419, 428, 55 Am. Dec. 266; City of Bridgeport v. Railroad Co., 36 Conn. 255, 4 Am. Rep. 63; Dorgan v. Boston, 12 Allen (Mass.) 223: Hammett v. Philadel- phia, 65 Pa. 148, 3 Am. Rep. 615; Neenan v. Smith, 50 Mo. 525. 31 Gordon v. Cornes, 47 N. Y. 608; City of Philadelphia v. Field, § 164) APPORTIONMENT OF TAXES. 471 Taxation and Apportionment Inseparable. The power of taxing and the power of apportioning- taxa- tion are inseparable ; the former, indeed, includes the latter, and the state may either itself make the apportionment of ex- traordinary expense for local benefit, or it may confer the power upon the public corporation of the locality.*^ The lat- ter method is commonly pursued, and thus municipalities are authorized to decide in what measure they will exercise the powers conferred upon them, and what amount of expense within legislative limits they will incur therefor.^^ All general improvements in a municipality are paid for out of the munici- pal treasury ; ** but in the municipality, just as in the state, inequalities of benefit in the improvements of divers localities call for unequal burdens of taxation. Those who receive spe- cial benefits in a municipality are therefore liable to special burdens of taxation, and the same power of apportionment existing in the state government is likewise recognized in municipal government.^'' 58 Pa. 320; Shaw v. Dennis, 5 Oilman (III.) 405; Thomas v, Leland, 24 Wend. (N. Y.) 65; Brewster v. Syracuse, 19 N. Y. 116. 3 2 HOPE V. DEADERICK, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; Speer v. Athens, 85 Ga. 49, 11 S. E. 802, 9 L. R. A. 402; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; Battle v. Mobile, 9 Ala. 234. 44 Am. Dec. 438; Harrison v. Vicksburg. 3 Smedes & M. (Miss.) 581, 41 Am. Dec. 633; Evansville v. State, 118 Ind. 426, 21 N. B. 267. 4 L. R. A. 93. 33 People V. Flagg, 46 N. Y. 401; Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615; Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; City of Ottawa v. Spencer, 40 111. 211; Kansas City V. Baird, 98 Mo. 215. 11 S. W. 562. 34 Taylor v. Chandler, supra; Regenstein v. Atlanta, 98 Ga. 167. 25 S. E. 428. S5 Mobile Coimty v. Kimball. 102 U. S. 691. 26 L. Ed. 238; Village of Norwood v. Baker, 172 U. S. 209, 19 Sup. Ct. 187, 43 L. Ed. 443: Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 906, 42 L. Ed. 270; In re Washington Ave., 69 Pa. 352, 8 Am. Rep. 255; Chamberlain v. Cleve- land, 34 Ohio St 551. 47a TAXATION. (Ch.li Local Assessments. This is the principle adopted and enforced in making local assessments for local improvements. If a particular street is to be graded, guttered, curbed, and paved, the expense of this special improvement should be borne by the lot owners upon that street.^® So, also, of sidewalks, sewers, and drains for a particular locality; ^^ and so, in general, wherever the munici- pality, in the exercise of its charter powers, incurs an extraor- dinary expense for the special benefit of a particular portion of the city, it may in the exercise of its power of apportionment impose upon that locality special taxes sufficient to pay the en- tire amount of this extraordinary expense, or such portion thereof as it may deem proper.^* This general doctrine of the law, however, is subject to exception in some states wherein it has been held that the constitutional provision for equality and uniformity of taxation prevent such special assessment for local improvements.^® The power to make local assessments exists only in those municipalities upon which it has been spe- cially conferred.*" It is not to be implied from the general 36 Hale V. Kenosha, 29 Wis. 599; Dorgan v. Boston, 12 Allen (Mass.) 223; State v. Keis, 38 Minn. 371, 38 N. W. 97; Allen v. Da- venport, 107 Iowa, 90, 77 N. W. 532; aty of Lafayette v. Fowler, 34 Ind. 140. 37 PALMER v. DANVILLE, 154 111. 156, 38 N. E. 1067; Wolf v. Philadelphia, 105 Pa. 25; Grunewald v. Cedar Rapids, 118 Iowa. 222, 91 N. W\ 1059; City of Atchison v. Price, 45 Kan. 290, 25 Pac. G05; Hill v. Warrell, 87 Mich. 135, 49 N. W. 479; Wright v. Boston. 9 Cush. (Mass.) 233, 38 Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187. 43 L. Ed. 443; Illinois Central R. Co. v. Decatur, 147 U. S. 190, 13 Sup. Ct. 293, 37 L. Ed. 132; City of Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330; Village of Morgan Park v. Wiswall, 155 111. 262, 40 N. E. 611. 3 9 Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; MAYOR OF MOBILE v. DARGAN, 45 Ala. 310; Stinson v. Smith, 8 Minn. 366 (Gil. 326). 40 City of Fairfield v. Ratcliffe, 20 Iowa, 396; Mayor of Annapolis V. Harwood, 32 Md. 471, 3 Am. Rep. 161; State v. Mayor, 71 Wis. § 164) APPORTIONMENT OF TAXES. 478 power of taxation.^ ^ In Tennessee the peculiar rule exists that abutters may be taxed for the cost of constructing side- walks in front of their property, but not for curbing, gutter- ing, and paving." Mode of Apportionment. The basic idea of local assessment is to impose burdens in proportion to benefits, and thus equalize taxes ; but it is a trite saying that in taxing absolute equality is unattainable. The method generally pursued is to tax lots by the front foot.*^ A street or sewer assessment may be made for the whole street or a part thereof, even to a single block ; ** and different streets, it seems, may be included in the same assessment.*"^ 502, 37 N. W. 809; Drake v. Phillips, 40 111. 388; Flewellin v. Proet- zel, 80 Tex. 191, 15 S. W. 1043; HITCHCOCK v. GALVESTON, 96 U. S. 341, 24 L. Ed. 659; McNamara v. Estes, 22 Iowa, 246; Reed v. Toledo, 18 Ohio, 161; Vance v. Little Rock, 30 Ark. 435. The only basis on which special taxation or special assessments can be sustained is that the property subject to assessment or tax- ation will be enhanced in value to the extent of the burden imposed. City of Butte v. School Disl. (Mont.) 74 Pac. 869. 41 HITCHCOCK V. GALVESTON, 96 U. S. 341, 24 L. Ed. 659; First Presbyterian Church v. Ft. Wayne, 36 Ind. 338, 10 Am. Rep. 35; Appeal of Powers, 29 Mich. 504; Sharp v. Speir, 4 Hill (N. Y.) 76. 42 Mayor of Franklin v. Maberry, 6 Humph. (Tenn.) 368, 44 Am. Dec. 315; Whyte v. Mayor, 2 Swan (Tenn.) 369; Taylor v. Chandler, S Heisk. (Tenn.) 349, 24 Am. Rep. 308. 43 Emery v. Gas Co., 28 Cal. 345; Walsh v. Matthews, 29 Cal. 123; City of Cincinnati v. Wilder, Ohio Dec. 1046; Sheley v. Detroit, 45 Mich. 431, 8 N. W. 52; Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159; Maloy v. Marietta, 11 Ohio St. 036; Davis v. Lynchburg, 84 Va. 861, 6 S. E. 230; City of Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330; Jersey City v. Howeth, 30 N. J. Law, 521; 2 Dill. Mun. Corp. § 701. 44 Scoville \. Cleveland, 1 Ohio St. 126; Schenley v. Com., .30 Pa. 29, 78 Am. Dec. 359; Brevoort v. Detroit, 24 Mich. 322; Parker V. Challiss, 9 Kan. 155. 4 5 Allen V. Davenport, 107 Iowa. 90, 77 N. W. 532; Wilbur v. Spring- field, 123 111. 395, 14 N. E. 871; Mayall v. St. Paul, 30 Minn. 294, 15 N. W. 170; In re Walter, 75 N. Y. 354. Contra, Arnold v. Cambridge, 106 Mass. 852. 474 TAXATION. (Ch. 18 A valid assessment can only be made in pursuance of the method prescribed by law.*® Other rules in regard to local assessment have been hitherto considered in the chapter on Improvements.*^ SUBJECTS OF TAXATION, 165. The power of municipal taxation extends over all per- sons and property ^vitliin municipal boundaries, and in certain instances also to adjacent realty. Municipal taxation, being for municipal benefit, has for its subjects all goods and chattels, lands and tenements, within the municipal boundaries.** In general, the rate of assessment 46 Bower v. Bainbridge, 116 Ga. 794, 43 S. B. 67; Newman v. Emporia, 32 Kan. 456, 4 Tac. 815; Lyon v. Alley, 130 U. S. 177, 9 Sup. Ct. 480, 32 L. Ed. 8U9; Zottman v. San Francisco, 20 Cal. 96. 81 Am. Dec. 96; Flewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043; State V. Mayor, 49 N. J. Law, 311, 8 Atl. 295; White v. Saginaw, 67 Mich. 33, 34 N. W. 255; Hawthorne v. East Portland, 13 Or. 271, 10 Pac. 242; Allen v. Galveston, 51 Tex. 302; City of Spokane Falls V. Browne, 3 Wash. St. 84, 27 Pac. 1077; LOTT v. ROSS, 38 Ala. 156; Churchman v. Indianapolis, 110 Ind. 2.59, 11 N. E. 301; City of Lowell V. W^heelock, 11 Cush. (Mass.) 391. 47 Ante, § 113. 48 Henderson Bridge Co. v. Henderson, 173 U. S. 592, 19 Sup. Ct. 553, 43 L. Ed. 823; In re Jones' Estate, 172 N. Y. 575, 65 N, E. 570, 60 L. R. A. 476; Hughes v. Carl, 106 Ky. 533, 50 S. W. 852; Louisville Trust Co. V. Louisville, 42 S. W. 340; City of Richmond v. Gibson (Ky.) 46 S. W. 702; Lamson Consol. Store Service Co. v. Boston, 170 Mass. 354, 49 N. E. 635; Buck v. Miller. 147 Ind. 586, 47 N. E. 8, 47 L. R. A. 384, 62 Am. St. Rep. 436; Gibbius v. Adamson, 5 Kan. App. 90, 48 Pac. 871; People v. Barker, 14 Misc. Rep. 382, 36 N. Y. Supp. 76. The franchises of a corporation exercised and enjoyed by it in a city are property within the provisions of a city's charter requiring a tax on all property in it. Southwestern Telegraph & Telephone Co. V. San Antonio (Tex. Civ. App.) 73 S. W. 859. In assessing property for taxation the dominant idea is that need- ful revenues shall be raised by levying a tax on property for valu- ation in such manner that eveiy owner of property subject to tax- I § 165) SUBJECTS OF TAXATION. -175 Upon all lands must be equal. Exception has been made to this general doctrine in a few cases with regard to agricultural atlon shall pay taxes in proportion to tlie value of the property owned. State V. Savage, 65 Neb. 714, 91 N. W. 716. A city has no power to exempt taxable property within its limits from municipal taxation, and it can neither bind itself not to impose taxes on particular property nor to impose them only under given limitations. City of Tampa v. Kaunitz, 39 Fla. 683, 23 South. 416. 63 Am. St. Rep. 202. A.n agreement of a city to release property from taxation on con- sideration of permission to construct sewers across the land is void, as being beyond the power of the city. Coit v. Grand Rapidr. 115 Mich. 493, 73 N. W. 811. A positive direction in the Constitution as to what property shall be exempt contains an implication against an exemption of any other property by the legislature. State v. Armstrong, 17 Utah, 166, .13 Pac. 981, 41 L. R. A. 407; State v. Daniel, 17 Wash. Ill, 49 Pac. 243. Carriger v. Morristowu, 1 Lea (Tenn.) 118. A municipal corpora- tion may not exempt any property in its boundaries from taxation, unless the legislature, in the exercise of constitutional authority so to do, expressly clothes it with the power to make exemption; and then the municipal action must be clearly within the power confer- red. Providence Bank v. Billings, 4 Pet. (U. S.) 514, 7 L. Ed. 939; City of South Bend v. University, 69 Ind. 344; State v. Parker, 32 N. J. Law, 426; Harvard College v. Boston, 104 Mass. 470; Biscoe V. Coulter, 18 Ark. 423; City of Newport v. Railway Co., 89 Ky. 29. 11 S. W. 954; City of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572. An exemption from taxation is never presumed, but must be clearly granted. Phoenix Fire & Marine Ins. Co. v. Tennessee, 161 U. S. 174. 10 Sup. Ct. 471, 40 L. Ed. 060; and statutes exempting property from taxation must be strictly construed against those claiming the ex- emption. People V. Association, 160 111. 576, 43 N. E. 716. But public property is not subject to general taxation. People v. Assessors, 111 N. Y. 505, 19 N. E. 90, 2 L. R. A. 148; McCULLOCH v. MARYLAND, 4 Wheat. (U. S.) 316, 4 L. Ed. 579 ; City of Nashville v. Smith, 86 Tenn. 213, S. W. 273; Green v. Hotaling, 44 N .7. Law, 347 ; Emery v. Gas Co., 28 Cal. 345 ; Erie County v. Erie, 113 Pa. 360. 6 Atl. 136; Willard v. Pike, 59 Vt. 202, 9 Atl. 907; City of Reading v. Berks County, 22 Pa. Super. Ct. 373; Warren County v. Nail, 78 Miss. 726, 29 South. 755; City of Somorville v. Waltham, 170 Mass. 476 TAXATION. (Ch. 18 lands,*' for which a special rate has been provided; but in other cases this discrimination has been held to be unconsti- tutional.^** Situs. The law of actual situs prevails with regard to chattels.'^ They are taxable by the municipality if they are usually kept or belong within its limits; and this, it seems, is so regardless of the domicile of the owner.^^ But goods and chattels found temporarily within a municipality are not taxable therein; as where a vessel is at a city wharf taking on freight, her situs is not there, but at the home port, or domicile of the owner. ^* 160, 48 N. E. 1092; City of Newark v. Verona, 59 N. J. Law, 94, 34 Atl. 1060. But see City of Rochester v. Coe, 25 App. Div. 300, 49 N. Y. Supp. 502. 49 Allen V. Davenport, 107 Iowa, 90, 77 N. W. 532; Com. v. Louis- ville & N. R. Co. (Ky.) 46 S. W. 206; Ryan v. Central City (ICy.) 54 S. W. 2; Martin v. Dix, 52 Miss. 53, 24 Am. Rep. 661; Kelly v. Pitts- burgh, 85 Pa. 170, 27 Am. Rep. 633; State v. Brown, 53 N. J. Law, 162, 20 Atl. 772; Land, Log & Lumber Co. v. Brown, 73 Wis. 294, 40 N. W. 482, 3 L. R. A. 472; Town of Dixon v. Mayes, 72 Cal. 166, 13 Pac. 471; McClay v. Lincoln, 32 Neb. 412, 49 N. W. 282; People v. Miller, 84 App. Div. 168, 82 N. Y. Supp. 621. 50 Town of Latonia v. Hopkins (Ky.) 47 S. W. 248; Sharp's Ex'r V. Dunavan, 17 B. Mon. (Ky.) 223; City of Davenport v. Kauffman, 34 Iowa, 194. See Briggs v. Russellville, 99 Ky. 515, 36 S. W. 558, 34 L. R. A. 193. . 51 Diamond Match Co. v. Ontonagon, 188 U. S. 82, 23 Sup. Ct. 266, 47 L. Ed. 394; Winston v. Salem, 131 N. C. 404, 42 S. E. SS9; Ellis V, People, 199 111. 548, G5 N. E. 428; People v. Barker, 84 App. Div. 409, 83 N. Y. Supp. 33. See 2 Dill. Mun. Corp. § 786. Logs floating in a lake, so that at time of assessment they were in different townships, but were all intended to be taken to a cer- tain sawmill, are assessable in the township where the mill is lo- cated. Mitchell V. Lake Tp., 126 Mich. 367, 85 N. W. 865. 5 2 Mills V. Thornton, 26 111. 300, 79 Am. Dec. 377; People v. Com- missioners, 23 N. Y. 224; Carrier v. Gordon, 21 Ohio St. 605; City of Davenport v. Railroad Co., 12 Iowa, 539; City Council of Augusta v. Dunbar, 50 Ga. 387; St. Louis v. Ferry Co., 11 Wall. (U. S.) 423, 20 L. Ed. 192. 5 3 Johnson v. Merchants' Line, 37 Fla. 499, 19 South. 640, 37 L. R. § 165) SUBJECTS OF TAXATION. 477 The same principle will apply to railway cars and locomotives. They would be taxable at the company yard or roundhouse.^* And so of other mobilia at the garage, dock, or stable where they are usually kept when not in use." Notes, Bonds and Choses in Action — Situs of. Much contention has arisen over the situs of stocks and bonds, franchises, notes, and other choses in action. The gen- eral rule with regard to such classes of personalty is that they are taxable at the owner's domicile, if he be a natural person. ^''' But it has been held that where the owner, a nonresident, habitually leaves such property on deposit in the hands of an A. 518; City of Mobile v. Baldwin, 57 Ala. 61, 29 Am. Rep. 712; Mor- gan V. Parham. 16 Wall. (U. S.) 471, 21 L. Ed. .303; City of St. Joseph ex rel. Hannibal & St. J. R. Co. v. Saville. 39 Mo. 460; Perry V. Torrence, 8 Ohio, 521, 32 Am. Dec. 725. 54 Chicago, B. & Q. R. Co. v. Hitchcock Co., 40 Neb. 781, 59 N. W. 358 • Philadelphia, W. & B. R. Co. v. Tax Ct, 50 Md. 397 ; Randall V. Ehvell, 52 N. Y. 521, 11 Am. Rep. 747; Coe v. Railroad Co., 10 Ohio St. 372, 75 Am. Dec. 518; Minnesota Co. v. St. Paul Co., 2 Wall. (U. S.) 609, 17 L. Ed. 886. The value of the rolling stock of a corporation is capital employed within the state, unless such stock is used exclusively outside the state. People v. Knight, 173 N. Y. 255. 05 X. E. 1102; Winton Coal Co. V. Commissioners (Pa. Com. PI.) 1 Lack. Leg. N. 195. 68 St. Louis V. Ferry Co., 11 Wall. (U. S.) 423, 20 L. Ed. 192; City of Sacramento v. Stage Co., 12 Cal. 134. 66 Corry v. Baltimore, 96 Md. 310, 53 Atl. 942; City of Marquette V. Land Co. (Mich.) 92 N. W. 934; Mackay v. San Francisco, 113 Cal. 392, 45 Pac. 696; In re Fair's Estate, 128 Cal. 607, 61 Pac. 184. A deposit in a bank is a debt due the depositor, and its situs for the purposes of taxation is in the state of the depositor's domicile. Pyle V. Brenneman, 122 Fed. 787. 60 C. C. A. 409; Clason v. New Orleans. 46 La. Ann. 1, 14 South. 306; Pacific Coast Sav. Soc. v. San Fran- cisco, 133 Cal. 14. 65 Pac. 16. In People v. Knight. 173 N. Y. 255, 65 N. E. 1102, it was held that where a domestic railroad owns the stock of a domestic transportation company which employs its cap- ital outside the state, such stock constitutes no part of the rail- road company's capital stock. Where money belonging to an estate was deposited in the city where one of three executors resided, one of the others being a nonresident. It was subject to taxation in such 478 TAXATION. (Ch. 18 agent for management, it is taxable at the agent's domicile ; '^ and in case of corporations, whether domestic or foreign, its local franchises are taxable where they are used ; ^* and its city. People v, Feitner, 167 N. Y. 1, 60 N. E. 265, 82 Am. St Rep. 098. The capital stock of a corporation is subject to taxation only in the state of its domicile. Foster-Cherry Commission Co. v. Caskey. 66 Kan. 600, 72 Pac. 21)8. Capital invested by a nonresident of the state In a seat in the New York Stock Exchange is property taxable in the state. In re Glendiuning's Estate, 171 N. Y. 684. 6i N. E. 1121; People V. Commissioners, 39 Misc. Rep. 282, 79 N. Y. Supp. 485. See People V. Feitner, 77 App. Div. 189, 78 N. Y. Supp. 1017. Contra, Reat V. People, 201 111. 469, 66 N. E. 242; Lee v. Dawson, 8 Ohio Cir. Ct. R. 365. The sovereign power which gives the shares of corporations their being can also give them situs within its territory for the purposes of taxation. State v. Insurance Co., 70 Conn. 590, 40 Atl. 465, 66 Am. St. Rep. 138; Dykes v. Mortgage Co. (judgment) 2 Kan. App. 217, 43 Pac. 268. See Tappan v. Bank, 19 Wall. (U. S.) 490, 22 L. Ed. 189; Cleveland, P. & A. R. Co. v. Pennsylvania, 15 Wall. (U. S.) 300. 21 L. Ed. 179; Sturges v. Carter, 114 U. S. 521, 5 Sup. Ct. 1014, 29 L. Ed. 240; City of Davenport v. Railroad Co., 12 Iowa, 539; Col- lins v. Miller, 43 Ga. 336; Johnson v. Oregon City, 3 Or. 13; Hunter V. Supervisors, 33 Iowa, 376, 11 Am. Rep. 132; Cornwall v. Todd. 38 Conn. 443; Mead v. Roxboro, 11 Cush. (Mass.) 362; Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. Ed. 558. 5T People v. Wells, 41 Misc. Rep. 144, 83 N. Y. Supp. 936; North- western Lumber Co. v. Chehalis Co., 25 Wash. 95, 64 Pac. 909, 54 L. R. A. 212, 87 Am. St. Rep. 747; Catlin v. Hull, 21 Vt. 152; People v. Ogdensburgh, 48 N. Y. 390; Wilcox v. Ellis, 14 Kan. 588, 19 Am. Rep. 107 ; State, on Petition of Taylor, v. County Court, 47 Mo. 594 ; Tazewell County Sup'rs v. Davenport, 40 111. 197; South Nashville St. Ry. Co. V. Morrow. 87 Tenn. 406, 11 S. W. 348, 2 L. R. A. 853. Money or property held by an ancillary administrator is subject to taxation in the state granting such administration, where taxes are not paid on it at the principal place of administration. Dor- ris V. Miller, 105 Iowa. 564, 75 N. W. 482. 58 Postal Tel. Cable Co. v. Norfolk (Va.) 43 S. B. 207; London & San Francisco Bank v. Block (C. C.) 117 Fed. 900 ; Rocheblave Mar- ket Co. v. New Orleans, 110 La. 529, 34 South. 665; City of Detroit V. Donovan, 127 Mich. 604, 86 N. W. 1032; Billinghurst v. Spink Co., § 166) STATE MAY IMPOSE. 479 notes and other choses in action at the place where they are usually kept.®® Adjacent Lands. The power of the state is recognized in apportioning taxa- tion for local improvements to include in the taxation district with a municipality adjoining lands to be benefited by the improvement ; and thus to create a special taxing district quoad hoc.^° For the administration of this improvement the municipality is usually appointed the governmental agency, and empowered through its existing instrumentalities to as- sess, levy, and collect taxes for the improvement, not only upon lands within, but lands beyond its local boundaries.*^ The power of taxation in such cases is confined to the special levy for the improvement. STATE MAY IMPOSE. 166. Tlie state, in tlie exercise of its sovereign popper, may impose special taxes upon the municipality for gov- ernmental, but not for strictly municipal, purposes. In creating a municipal corporation and conferring upon it the taxing power, the state does not and cannot surrender its 5 S. D. 84, 58 N. W. 272; Manufacturers' Ins. Co. v. Loud, 99 Mass. 146, 96 Am. Dec. 715. The state board of equalization in assessing railroad property should include the value of the franchises with the taxable prop- erty. State V. Savage, 65 Neb. 714, 91 N. W. 716. 59 People v. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33; Armour Packing Co. v. Augusta (Ga.) 45 S. E. 424; Orange & A. R. Co. v. Alexandria, 17 Grat. (Va.) ISo; Ontario Bank v. Bunnell, 10 Wend. (N. y.) 180; British Commercial Life Ins. Co. v. Commissioners, 31 X. Y. 32. Contra, Home Ins. Co. v. Board, 48 La. Ann. 451, 19 South. 280. 60 Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763: Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; PEOPLE v. BKOOiaA'N, 4 N. Y. 419, 55 Am. Dec. 266. 61 In re House Bill No. 165, 15 Colo. 593, 26 Pac. 141. 480 TAXATION. (Ch. 18 own inherent sovereignty over the people and property within the municipal boundaries. No municipal power can exist in perpetuity.®^ The legislature exercising the sovereign func- tion of legislation may not only repeal the charter, and thus destroy the municipal life, but, since the greater includes the less, it may withdraw powers conferred in whole or in part, and may exercise such powers itself.®^ The inherent power of taxation possessed by a state may be exercised by the legis- lature upon property within as well as without the municipal boundaries; and for any strictly governmental purpose it is conceded that the state may tax municipal property not only for general objects,®* but by special assessment for local im- provements.®^ It is also generally recognized by the courts that for purely municipal purposes the municipality may not be taxed by the state without its consent,®® though upon this subject the cases are somewhat discordant; but there is great variety of de- cision in the various cases determining what is a governmental and what is a municipal purpose. The two leading cases in the United States representing these discordant views are those commonly known as the Philadelphia City Hall Case ®'' and the Detroit Park Case,®^ heretofore discussed. In the former of these it was ruled that the state might compel the city to pay for the erection of "an enormous pile which surpasses the town halls and cathedrals of the Middle Ages in extent, if not in grandeur";®^ and in the latter that the state could 6 2 MERIWETHER v. GARRETT, 102 U. S. 472, 2G L. Ed. 197; PEOPLE V. MORRIS, 13 Wend. (N. Y.) 325; Newton v. Commission- ers, 100 U. S. 548, 25 L. Ed. 710. 6 3 Williamson v. New Jersey, 130 U. S. 189, 9 Sup. Ct. 453, 32 L. Ed. 915. 64 Ante, §§ 68, 69. 65 2 Dill. Mun. Corp. § 752. 6 6 1 Dill. Mun. Corp. §§ 72, 73; Cooley, Const. Lim. (6th Ed.) 284, 285. 67 PERKINS V. SLACK, 86 Pa. 283. 68 PEOPLE V. DETROIT, 28 Mich. 228, 15 Am. Rep. 202. e» 1 Hare, Const. Law, 630. § 167) LIMITATION OF EXPRESS POWER. 481 not compel the city to pay for the purchase and improve- ment of a city park.^° Between these divergent views of legislative control over municipal corporations is found a vari- ety of decisions in divers states as to the legislative power to impose taxes upon a municipality, which generally recog- nize the doctrine above stated, but differ in its application to particular cases.'' ^ LIMITATION OF EXPRESS POWER. 167. The municipality may exercise the poiver of taxation expressly conferred upon it only vritliin constitutional limitations. This doctrine is so self-evident as scarcely to need elucida- tion ; but much contention has arisen over express charter powers of taxation granted by the legislature, and exercised by a municipality in strict conformity therewith. In practical operation, however, it was sometimes found that this not onl} wrought injustice, but produced results violative of constitu- tional protection. In some of these the taxation would not be equal and uniform ""^ as required by the organic law. In oth- 70 PEOPLE V. DETROIT, supra. Nor build a courthouse. Callam v, Saginaw, 50 Mich. 7, 14 N. W. 677. 71 City of Baltimore v. Rietz, 50 Md. 574; PRINCE v. CROCKER, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; In re Adams, 16o Mass. 497, 43 N. B. 682; Pumphrey v. Baltimore, 47 Md. 145. 28 Am. Rep. 446; PEOPLE v. BATCHELLOR, 53 N. Y. 128, 13 Am. Rep. 480; Jefferson County Com'rs v. People, 5 Neb. 136; Jensen v. Supervisors, 47 Wis. 298, 2 N. W. 320. 7 2 Oliver v. Washington Mills, 11 Allen (Mass.) 268; Youngblood V. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Gatlin v. Tarboro, 78 X. C. 119; State v. Bank, 41 La. Ann. 329, 6 South. 5S2; Daly v. Mor.uan. 69 Md. 460, 16 Atl. 287, 1 L. R. A. 757; Marsh v. Supervisors, 42 Wis. 502. Uniform taxation requires that the tax must be uniform through- out the territory to which it is applicable. Day v. Roberts (Va.) 43 S. E. 362; State v. Savage, 65 Neb. 714, 91 N. W. 716; W. C. Peacock & Co. V. Pratt, 121 Fed. 772, 58 C. C. A. 48; Adams v. Bank of Ox- Ing.Cobp. — 81 482 TAXATION. (Ch. IS ers it would not be for a public, but for a private, purpose.'^ Such results, being contrary to fundamental law, cannot be permitted when the power is challeng-ed. The legislature itself can confer upon a municipality no greater measure of power than it possesses ; and, since it can enact no valid law contrary to the constitutional provisions, it can confer upon the munici- pality no power to pass unconstitutional ordinances.''* IMPIilED POAVER. 168. The municipality may levy taxes for the performance of any municipal duty imposed, or exercise of any mu- nicipal function conferred upon it by charter or by general laiv. Of the three classes of municipal powers, express, inherent, and implied, it is obvious that a municipality for the purpose of taxation possesses the first within constitutional limitations, but may not exercise any under the second class. What im- plied power for taxation belongs to a municipal corporation is not so easy to determine. Here, however, as elsewhere, in the construction of municipal charters, the general doctrine is applied that the corporation has by implication such measure of power as is necessary to the proper execution of the cha ter powers expressly granted.''^ Thus, as we have seen, th( ford, 78 Miss. 532, 29 Soutb. 402; Fhoenix Assur. Co. v. Fire Dept., 117 Ala. 631, 23 Soutli. 843, 42 L. R. A. 4(38. 73McInerney v. Huelereld, 25 Ky. Law Rep. 272, 75 S. W. 237: Burroughs, Tax'n, § 130. T4 Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592, 30 L Ed. G94; Burr v. Atlanta. 64 Ga. 225: City of Marsballtown v. Blum, 58 Iowa, 184, 12 N. W. 266, 43 Am. Rep. 116; State v. North, 27 Mo 464; Wiley v. Parmer, 14 Ala. 627; Hitchcock v. St. Louis, 49 Mo. 484; Weeks v. Milwaukee, 10 Wis. 242; CITIZENS' SAVINGS & LOAN ASS'N V. TOPBKA, 20 Wall. (U. S.) 655, 22 L. Ed. 455. 7 5 City of Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. 361, 27 L. Ed. 669 ; City of Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118 ; Town of Danville v. Shelton, 76 Va. 325; City of Charleston r. Reed, 27 W. Va. 681. 55 Am. Rep. 336; City of Corvallis v. Carlile, 10 Or. 139, § 168) IMPLIED POWER. 483 power to borrow money implies the power of taxation suffi- cient to repay the loan.''* The power to grade and pave streets implies the power to collect sufficient revenue to pay the ex- penses of the improvement. '^^ So, also, of the power to pre serve public healthj^ to purchase fire engines and other ap- paratus/® to erect public buildings,^" to purchase lands for public squares and parks, ^^ and the like.*^ Having the gen- eral power of taxation, the municipality may exercise it to raise revenue necessary for any of these charter purposes. But it has been held that the taxing power cannot be implied from a general welfare clause in the charter,^^ nor from the power to enact by-laws for the good government of the town.^* Nor will power to make by-laws to "promote the benefit and ad- vantage of a corporation" authorize it to levy a tax to pay the expense of procuring the location of a railroad through the municipality.^^ So the power to regulate and improve streets 45 Am. Rep. 134; Bennett v. Buffalo, 17 N. Y. 383; City of Fair- field V. Ratcliff, 20 Iowa. 396; Wright v. Chicago, 20 111. 252; City of Annapolis v. Harwood, 32 Md. 471, 3 Am. Rep. 161. Te Ante, § 152. 77 City of Annapolis v. Harwood, supra. 78 In re Taxpayers & Freeholders of Village of Plattsburgh, 157 N. Y. 78, 51 N. E. 512. 7 9 Sibley v. Mobile, 3 Woods, 535, Fed. Cas. No. 12,829; Desmond V. Jefferson (C. C.) 19 Fed. 483; City of Birmingham v. Rumsey, G3 Ala. 352. 80 PERKINS V. SLACK, 86 Pa. 283; Wood v. Bangs, 1 Dak. 179, 46 N. W. 586; Trustees of School Dist. No. 1 v. Jamesom, 12 Ky. Law Rep. 719, 15 S. W. 779. 81 In re City of New York, 99 N. Y. 569, 2 N. E. 642. 8 2 Oconto City AVater Supply Co. v. Oconto, 105 Wis. 76, 80 N. W. 1113; Jonas v. Cincinnati, 18 Ohio, 318; State ex rel. Stewart v. I'olice Jury, 34 La. Ann. 673; UNITED STATES v. NEW ORLEANS. 103 U. S. 358, 26 L. Ed. 395. 83 COMMISSIONERS OF TOWN OF ASHEVILLE v. ME^VNS, 29 N. C. 406; Mays v. Cincinnati, 1 Ohio St. 268. 84 Ex parte Burnett, 30 Ala. 461; COMMISSIONERS OF TOWN OF ASHEVILLE v. MEANS, supra. 86 Minnesota Linseed Oil Ck). v. Palmer, 20 Minn. 468 (Gil. 424). 484 TAXATION. (Ch. 18 does not include the power to make local assessments;^^ and the power to enact by-laws necessary for the security, wel- fare, and convenience of the city does not authorize a tax on liquor dealers.'^ And so rigidly has the doctrine of necessary implication been applied in some cases that it has been held that the power to remove obstructions and widen and deepen public waters does not authorize a local assessment for deep- ening the city harbor ; ** and even that the power to subscribe for the stock of a railroad does not include the power to levy a tax to pay for the stock. ^' But this last case appears to be sporadic. lilCENSE TAX. 169. A license tax may be imposed by the municipality only Tvbeu powev is expressly conferred. Municipal licenses may be divided into two classes: (1) Police, and (2) revenue. It has been repeatedly held that a municipality may license certain occupations and forbid the exercise of the same by unlicensed persons.^" This is under the police power granted to the municipality; but in such case the fee to be charged against the licensee is determined by the necessary expense connected with the police regulation.®^ The taxing power, however, cannot be implied from the police power.®* And so it has been repeatedly held that where the sum charged for a municipal license is obviously for purposes of taxation, and not merely a license fee, the charge is un- 86 City of FairHeld v. RatcliCf, 20 Iowa, 396. 8 7 Ex parte Burnett, 30 Ala. 4G1. 88 Wright V. Chicago, 20 111. 252. 8 8Burnes v. Atchison, 2 Kan. 454. »o York V. Railroad Co., 56 Xeb. 572, 76 N. W. 1065; City of Roch- ester V. Upman, 19 Minn. 108 (Gil. 78); Kitson v. Ann Arbor, 26 Mich. 826; 2 Dill. Mun. Corp. § 768. 91 Burroughs. Tax'n, § 132. 9 2 Town of Columbia v. Beasly, 1 Humph. (Tenn.) 232, 34 Am. Dec. 646; Kip v. Faterson, 26 N. J. Law, 298. § 170) POWER EXERCISED — HOW AND BY WHOM. 485 authorized and void, unless authority to levy a license tax has been expressly conferred by charter or general legislation.^^ The tax on occupations is upon persons pursuing such occu- pations within the city, whether their residence be inside or outside the corporate limits.^* And no discrimination can be made as between residents and nonresidents.®^ A person residing within a city cannot be taxed upon his occupation if it be pursued exclusively outside the municipality, ®® POW^ER EXERCISED— HOAV AND BY WHOM. 170. Record evidence of the action of tlie governing body of tlie municipality is essential to tlie validity of a tax levy. The power of taxation conferred upon a municipality must be exercised by the common council as the governing body of the corporation.®^ It cannot be delegated by the council to officers or other persons,®^ unless the power of delegation be expressly conferred by the legislature, and such legislation has been held to be constitutional.®® This exercise of the taxing 93 Postal Tel. Cable Co. v. Norfolk (Va.) 43 S. E. 207; City of Cape May v. Transportation Co., G4 N. J. Law, 80, 44 Atl. 948; Bull V. Quiucy, 9 111. App. 127; Craig v. Burnett, 32 Ala. 728; Dunliam v. Rochester, 5 Cow. (N. Y.) 462; Mays v. ancinnati, 1 Ohio St. 2GS; Benson v. Hoboken, 33 N. J. Law, 280. As to where permission to charge a license fee has been conferred, see Wilson v. Lexington, 105 Ky. 7G5, 50 S. W. 834; Morris v. Cummings, 91 Tex. G18, 45 S. W. 383; State v. Des Moines, 103 Iowa, 76, 72 N. W. 639, 39 L. R. A. 285, 64 Am. St. Rep. 157; City of Lake Charles v. Police Jury, 50 La. Ann. 346, 23 South. 376. 94 Worth V. Fayetteville, 60 X. C. 70. 9 5 City of Nashville v. AltJirop, 5 Cold. (Tenn.) 555; State v. Charleston, 2 Speers (S. C.) 719; Joyce v. Woods. 78 Ky. 386. 9 6 2 Dill. Mun. Corp. § 791. 9T Davis V. Read, 65 N. Y. ."06; Thomson v. Booneville, 61 Mo. 282; City of Indianapolis v. Lawyer, 38 Ind. 3-18. 98 Foss V. Chicago, 56 111. 354; Johnston v. Macon, 62 Ga. 645. »» Schwartz v. Flatboats, 14 La. Ann. 243. 486 TAXATION. (Ch. 18 power by the council applies alike to general and local assess- ments; but the legislature may expressly confer upon other bodies or persons the power to make local assessments. ^°° It is not an unwarranted exercise or delegation of the power of taxation for a city itself to appoint an engineer or committee to make a local assessment, and to make the levy by receiving and confirming the report.^"'^ Record Necessary. But there can be no such thing as oral taxation. ^"^ The governing body in lawful session must enact the ordinance levying the tax. and must make a record of the same, and such levy can be proven only by the record.^ "^ In case of loss or destruction of the record it may be established in the manner provided by law.^"* The levy is invalid, and taxes cannot law- fully be collected thereunder, unless it is made by the body, and substantially in the manner directed by law.^"" A void levy cannot be validated by subsequent ratification.^"' But under proper legislative authority a valid reassessment may be made.^°^ 100 Bower v. Bainbridge, 116 Ga. 794, 43 S. E. 67; Parker v. New Brunswick, 30 N. J. Law, 395; Schenley v. Commonwealth, 36 Pa. 29, 78 Am. Dec. 359. 101 West V. Whitaker, 37 Iowa, 598. 102 Farrar v. Fessenden, 39 N. H. 2G8. 103 Moser v. White, 29 Mich. 59; Godfrey v. Bennington Water Co. (Vt.) 55 Atl. 654; City of New York v. Watts, 40 Misc. Rep. 595, 83 N. Y. Supp. 23. 104 Williams v. School Dist., 21 Pick. (Mass.) 75, 32 Am. Dec. 243. 105 Burroughs, Tax'n, § 148; Allen v. Galveston, 51 Tex. 302; LOTT V. ROSS, 38 Ala. 156; Boice v. Plainfield, 38 N. J. Law, 95; Green v. Ward, 82 Va. 324; City of Orlando v. Association (Fla.) 33 South. 986. 106 Hart V. Henderson, 17 Mich. 218; People v. Goldtree, 44 Cal. 323; Dean v. Borchsenius, 30 Wis. 236. But where a tax was void only because it exceeded the limit im- posed by statute, the assessment could be validated by a subsequent act. Kettelle v. Water Co., 23 R. I. 114, 49 Atl. 492. 107 Tallman v. Janesville, 17 Wis. 71; City of New Orleans v. § 171) ASSESSMENT AND COLLECTION. 487 ASSESSMENT AND COLLECTION. 171. Municipal taxes may be assessed and collected by state officers under general law, or by municipal officers thereunto authorized by the state, and appointed and directed by the municipality. Divers methods of assessing and collecting revenue prevail in the various states. Unless otherwise specially provided by law, the general methods of state taxation are to be pur- sued by municipalities.^"' Municipal taxes may be assessed and collected by state officers, or municipal officers appointed for this purpose may discharge this duty either as directed by statute or under municipal ordinances when authorized by law. Tax Duplicates or Assessment Lists. The municipality may use the tax duplicate or assessment list of the county or a special municipal assessment list may be made for the corporation according as the law may pro- vide.^ °^ Under the latter method corrections may be made substantially in the same manner as in county assessments.^^" Collections — Liens. And as in case of assessments, so of collections, the duty may be performed under law either by county or municipal officers,^^^ and collections may be enforced in substantially Poutz, 14 La. Ann. Su6; Fairtield v. People, 94 111. 244; Doyle v. Newark, 34 N. J. Law, 236. 10 8 Burroughs, Tax'n, § 140. Where a special method is prescribed by statute for the collection of taxes, it must be pursued to the exclu- sion of others based on general principles. Board of Chosen Free- holders of Atlantic County v. Inhabitants of Weymouth Tp., 68 N. J. Law, 652, 54 Atl. 458. 109 State V. (xodfrey, 24 Ohio Cir. Ct. R. 455; Deason v. Dixon, 54 Miss. 585; Garey v. City, 42 Tex. 627; Nason v. Whitney, 1 Pick. (Mass.) 140; Wingate v, Ketner, 8 Wash. 94, 35 Pac. 591. 110 Ante, § 26. 111 Commonwealth v. Jimison, 205 Pa. 367, 54 Atl. 1036; Logan 488 TAXATION. (Ch. 18 the same method as that hereinbefore pointed out for quasi corporations.^ ^^ A valid assessment constitutes a lien upon the property, which may be enforced by judicial proceeding.^ ^' An action at law also lies in favor of the corporation against the owner of the property for taxes thereon unpaid.^^* Tax a Debt. In some states taxes due are regarded as a debt, and as- sumpsit will lie in favor of a municipality against the person in whose name the assessment is made.^^° When specially Co. V. Carnahan (A'eb.) 95 N. VV. HVZ; City of Pensacola v. Sullivan, 23 Fla. 1, 6 South. 922; Webb v. Beaufort, 88 N. C. 496; City of Ft. Wayne v. Lehr, 88 Ind. 02; Hiestand v. New Orleans, 14 La. Ann. 330. A tax collector has no authority to sell property beyond the limits of his own county. Morrison v. Casey, 82 Miss. 522, 34 South. 145. 112 Ante, § 26. 113 Hertzler v. Cass Co. (N. D.) 96 N. W. 294; Harris Franklin & Co. V. Layport (Neb.) 95 N. W. 851; People v. Smith, 123 Cal. 76, 55 Pac. 765; Spiech v. Tierney, 56 Neb. 514, 76 N. W. 1090; City of Easton v. Drake, 9 Kulp (Pa.) 320; In re Goodwin Gas Stove & Meter Co.'s Estate, 3 Pa. L»ist. K. 483. Taxes are not liens on property on which they are assessed unless expressly made so by statute. Skinner v. Christie, .52 N. J. Eq. 720, 29 Atl. 772; Burroughs, Tax'n, §§ 109, 140. But see Palmer v. Pet tingill, 6 Idaho, 346, 55 Pac. 653. 114 Meredith v. United States, 13 Pet. (U. S.) 486, 10 L. Ed. 258. Contra, Montezuma Valley Water Co. v. Bell, 20 Colo. 175, 36 Pac. 1102. 115 Ellis V. People, 199 111. 548, 65 N. E. 428. But the suit should be brought in name of the state. Chancellor of State v. Elizabeth. 66 N. J. Law, 687. 52 Atl. 1130 ; City of Dubuque v. Railroad Co., 39 Iowa, 56 ; Rundell v. Lakey, 40 N. Y. 517 ; Town of Geneva v. Cole, 61 111. 397; CITY OF JONESBOROUGH v. McKEE, 2 Yerg. (Tenn.) 167 ; Winter v. Montgomery, 79 Ala. 481 ; Gordon v. Baltimore, 5 Gill (Md.) 231 ; State ex rel. Kansas City, St. J. & C. R. Co. v. Severance. 55 Mo. 378. It was held in Missouri that a municipality cannot impose a tax lien upon property without express charter authority. City of Spring- field V. Starke, 93 Mo. App. 70, See Chamberlain v. Woolsey (Neb.) 92 N. W. 181; Id., 95 N. W. 38. But see Brule Co. v. King, 11 S. D, 294, 77 N. W. 107, where the ,i g 171) ASSESSMENT AND COLLECTION. 489 authorized upon a municipal levy, a distress warrant may be issued thereon, which has the legal force of judgment and execution at law.^^' If the charter is silent, common-law ac- tion, and not summary proceeding, is the proper method of enforcing collection. ^^' These regulations applicable to gen- eral taxes are usually held not to apply in local assessments; ^^^ and there are many cases distinguishing debts and taxes,^^^ and some holding that no common-law action will lie for taxes.^^° At present, in most of the states efficient methods for collecting municipal taxes, either summary or otherwise, are prescribed by legislation, and resort to common-law reme- dies is rarely necessary. only method of collecting personal taxes authorized by the statute is by distress and sale, and it was held that they are not recoverable by action, since they are not debts. 116 City of Baltimore v. Howard, 6 Har. & J. (Md.) 383; Noble V. Amoretti (Wyo.) 71 Pac. 879; City of Easton v. Drake, 9 Kulp erlain v. Woolsey (Neb.) 92 N. W. 181; Id., 95 N. W. 38. And so, also, when a city charter gives a method for the assessment, levy, and collection of city taxes. City of Rochester v. Gleichauf, 40 Misc. Rep. 440. 82 N. Y. Supp. 750. But see City of Burlington V. Railroad Co., 41 Iowa, 134; City of Baltimore v. Howard, 6 Har. & J. 383. 490 TAXATION. (Ch. 18 TAXATION FOR CREDITORS. 172. The courts may compel the levy and collection of taxes by a municipality to satisfy municipal indebtedness. A municipal creditor having matured indebtedness against a municipality may pursue the usual methods to enforce col- lection by action at law, judgment, and execution; ^^^ but, since all municipal property used in the performance of gov- ernmental functions is exempt from execution, ^^^ such mode of collection usually proves inadequate, and the creditor finds the usual remedy at law greatly embarrassed, and oftentimes totally ineffective. Whenever this is made to appear, the courts will grant him the remedy of mandamus to enforce satisfaction by means of taxation.^ ^^ Mandamus. In the federal courts and some state courts a judgment is an essential prerequisite to this writ; ^-* but in many of the state courts this is not the rule; ^^^ and in some the procedure ad- mits of a judgment and mandamus in the same suit.^^® 121 Holladay v. Frisbie, 15 Cal. 630 : Brown v. Gates, 15 W. Va. 131 ; Hart V. New Orleans (C. C.) 12 Fed. 292. 122 MERIWETHER v. GARRETT, 102 U. S. 472, 26 L. Ed. 197; Foster v. Fowler, 60 Pa. 27; Darling v. Baltimore, 51 Md. 1. 123 City of Oluey v. Harvey, 50 111. 453, 99 Am. Dec. 530; Klein V. New Orleans, 99 U. S. 149, 25 L. Ed. 430; Curry v. Savannah, 64 Ga. 290, 37 Am. Rep. 74; DARLINGTON v. MAYOR, 31 N. Y. 164, 88 Am. Dec. 249. But one having a general judgment against a city is not entitled to mandamus to compel payment from funds derived from taxes levied for the payment of certain bonds. State ex rel. Hopper v. Cottengin, 172 Mo. 129, 72 S. W. 498. 12 1 Bath Co. v. Amy, 13 Wall. (U. S.) 244, 20 L. Ed. 539; People V. Clark, 50 111. 213; State ex rel. White v. Clay, 46 Mo. 231; Coy v. Lyons, 17 Iowa, 1, 85 Am. Dec. 539. 125 state V. Anderson Co., 8 Baxt. (Tenn.) 249; Louisville & N. R. 126 City of Watertown y. Cady, 20 Wis. 501; Nelson v. Justices, 1 Cold. (Tenn.) 207. § 172) TAXATION FOR CREDITORS. 491 The court may not appoint officers or commissioners to levy and collect the taxes/ ^'^ but enforces the collection by man- damus against the officers empowered to perform these func- tions.^^* If assessors or collectors fail or refuse to perform their duty in obedience to the order of the court, they may be punished for contempt.^ ^^ The court may also by appropriate order compel the application of the fund collected to the satis- faction of the plaintiff's demand. ^^^ Co. V. County Court, 1 Sneecl (Tenn.) 637. 62 Am. Dec. 424; Flagg V. Palmyra, 33 Mo. 440 ; Justices of Clarke County Court v. Turnpike Co., 11 B. IMon. (Ky.) 143; Brown v. Crego, 32 Iowa, 498; State v. Milwaukee, 20 Wis. 87. 127 REES V. WATERTOWN, 19 Wall. (U. S.) 107. 22 L. Ed. 72; Walkley v. Muscatine. 6 Wall. (U. S.) 481, 18 L. Ed. 930. 128 Maddox v. Graham, 2 Mete. (Ky.) 56; Bassett v. Barbin, 11 La. Ann. 672; State v. Madison, 15 Wis. 30. 120 Beachy v. Lamkin, 1 Idaho, 50; Ex parte Holman, 28 Iowa, 88. 5 Am. Rep. 159. 130 Galena v. United States, 5 Wall. (U. S.) 705, 18 L. Ed. 560; Coy V. Lyons, 17 Iowa, 1, 85 Am. Dec. 539. 4!»a ACTIONS. (Ch. 19 CHAPTER XIX. ACTIONS. 173. A Municipality May Sue and be Sued. 174. Plaintiff in Actions Ex Contractu. 175. Defendant In Actions Ex Contractu. 176. Plaintiff in Actions Ex Delicto. 177. Defendant in Actions Ex Delicto. 178. Mandamus. 179. Quo Warranto. 180. Certiorari. 181. Complainant in Chancery. 182. Defendant in Chancery. 183. Injunctions. 184. Criminal Prosecution. A MUNICIPALITY MAY SUE AND BE SUED. 173. Capacity to sue and be sued in its corporate name is an essential attribute of tbe municipal corporation. "Certain powers are incidental to corporate existence, and are impliedly conferred upon every corporation unless there is something in the charter to show an intention to exclude them." ^ Such powers are variously termed "incidental," "es- sential," "indispensable," or "inherent." ^ Among these es- sential incidents are a corporate name and seal, the power to make by-laws, to purchase, hold, and alienate property, to have perpetual succession, and to sue and be sued by the corporate name.* Whatever doubts may exist as to the capacity of quasi 1 Clark, Priv. Corp. § 51. 2 1 Dill. Mun. Corp. § 89; Marsh. Corp. § 57; Am. Mun. Corp. c. 3; Clark, Priv. Corp. § 49. 8 A municipal corporation may sue and be sued in its proper cor- § 174) PLAINTIFF IN ACTIONS EX CONTRACTU. 491^ corporations to sue and be sued,* none pertain to municipal corporations. Being chartered and empowered to exist and act as corporations, they are distinct legal entities, and as such are protected by and amenable to the law. A munici- pality, therefore, like any other complete corporation or per- son, may appeal to the courts for vindication of its rights, and for wrong done by it may be sued by the injured party." PLAINTIFF IN ACTIONS EX CONTRACTU. 174. To redress a xirrong arising out of breach of contract, tlie municipality may bring and maintain tlie proper com- nion-la\(7 action, or any statutory substitute therefor. A municipality may make contracts with other corporations, public or private, and with natural persons, from the breach of which by them the municipality may suffer loss or damage. For redress of such an injury the courts are open to a mu- nicipal corporation just as to a private corporation or a natural person.^ The same form of redress is alike open to all for identical injuries. If the contract broken by the other part}- had been executed under seal, the action of covenant lies to porate name. Powers v. Decatur, 54 Ala. 214; City of Boston v. Scbaffer, 9 Pick. (Mass.) 415. A city has inherent power to sue, and therefore need never allege that power. City of Janesville v. Railroad Co., 7 Wis. 484. Where an action is brought by a city, in its coriJorate name, by its proper law officers, it will be presumed that the action is author- ized, until the contrary appears. Lincoln St. Ry. Co. v. Lincoln, 61 Xeb. 109, 84 N. W. 802. See Clark, Priv. Corp. § 51. * Ante, § 34. 5 Burrill v. Boston, 2 Cliff. 590, Fed. Cas. No. 2,198; CITY OF JONESBOROUGH v. McKEE, 2 Yerg. (Tenn.) 1G7. 6 Village of Buffalo v. Harling, 50 Minn. 551, 52 N. W. 931; Oliver V. Worcester, 102 Mass. 489, 3 Am, Rep. 485; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; City of Buffalo v. Bettinger, 76 N. y. 393. 494 ACTIONS. (Ch. 19 recover damag-es for the breach.'' If it was an express contract for the payment of a specified sum of money, debt will be the proper form of action.^ This form of action has been used to recover a fixed penalty for breach of municipal ordinance.® The municipality may sue in assumpsit to recover for breach of an implied contract ; ^° or for any matters of the common counts;*^ and also for the penalty of an ordinance whether fixed or discretionary.^^ In states where the common-law forms of action have been abolished, the municipality may avail itself of the proceeding provided in the Code as the equivalents of those above mentioned to redress wrongs aris- ing from breach of contract.^^ Such actions are subject to the general rules of procedure, applying alike to all plaintiffs, nat- ural and corporate.^* DEFENDANT IN ACTIONS EX CONTRACTU. 175. Tlie municipality, like any other corporation, is liable to be sued in assnmpsit, debt, or covenant, or any equivalent statutory action for breach of contract by it. As we have heretofore seen, a municipal corporation, within the scope of its charter powers, may contract obligations to 7 St. Joseph County Sup'rs v. Coffenbuiy, 1 Mich. 355; Turner v. Clark Co., 67 Mo. 243; Sweetser v. Hay, 2 Gray (Mass.) 49. 8 1 Chitty PI. [14th Am. Ed.] 108. 9 Staats V. Washington, 45 N. J, Law, 31S; Barter v. Common- wealth, 3 Pen. & W. (Pa.) 253; 1 Dill. Mun. Corp. § 409. 10 (Unpaid taxos) Dugan v. Baltimore, 1 Gill & J. (Md.) 499; CITY OF JONESBOPvOUGH v. McKEE, 2 Yerg. (Tenn.) 107; Town of Geneva v. Cole, 01 111. 397. 11 1 Chitty PI. [14th Am. Ed.] 341. 12 Ewbanks v. Ashley, 30 111. 178; Greely v. Passaic, 42 N. J. I.aw, 429. 13 Deitz V. Central, 1 Colo. 323; Town of Brook ville v. Gagle, 73 Ind. 117; COATES v. xVIAYOR, 7 Cow. (N. Y.) 585. li Fitch V. Pinckard, 5 111. 78; City Council v. Dunn, 1 McCord (S. 0.) 333; Napman v. People, 19 Mich. 352; Keeler v. Milledge, 24 N. J. Law, 142. I § 175) DEFENDANT IN ACTIONS EX CONTRACTU. 495 others, which it may not violate with impunity. The pos- session by the municipahty of the sovereign powers of poHce, taxation, and eminent domain does not give it immunity from legal obligation, nor exempt it from the process of law.^^ Being capable to contract within the scope of its powers, it assumes thereby legal obligation, for the breach of which an action will lie against it just as against other corporations or persons. ^° If the contract broken was executed by the cor- poration with due formality under its corporate seal, cove- nant will lie against it.^'^ Indeed, in England this is the only proper form of action on an executory contract, which lies against a municipality, since informal corporate contracts are not there recognized.^® But in America, as we have heretofore seen, corporations may be bound by contracts informally ex- ecuted by its officers, either in writing or orally.^ ** For breach of such contracts the proper action would be debt or assump- sit, according to the rules distinguishing these two kinds of action.*" In the Code states the action would be brought in 15 1 Dill. Mun. Corp. § 9. 16 Burnett v. Abbott, 51 Ind. 2.54; City of New Orleans v. Guil- lotte's Heirs, 12 La. Ann. S18; Douglass v. Virginia City, 5 Nev. 147. 17 Morrell v. Sylvester, 1 Greenl. (Me.) 248; People v. BeniieJd, 80 Mich. 265, 45 N. W. 135; Town of Montville v. Haughton, 7 Conn. 543; City of Piatt eville v. Hooper, 63 Wis. 381, 23 N. W. 583; Mayor, etc., of City of New York v. Crawford, 111 N. Y. 638, 19 N. E. 501. 18 Arn. Mun. Corp. p. 29. 19 Ante, § 101. 20 ARGENTI V. SAN FRANCISCO, 16 Cal. 255; Marble Co. v. Har- vey, 92 Tenn. 115, 20 S. W. 427, 18 L. R. A. 252, 36 Am. St. Rep. 71 ; Louisiana City v. Wood, 102 U. S. 294, 26 L. Ed. 153; City of Nasli- ville V. Toney,'10 Lea (Tenn.) 613; Peterson v. Mayor, 17 N. Y. 449; Tucker v. Virginia City, 4 Nev. 20. So, also, for a void tax paid under compulsion or protest. City of Grand liapids v. Blakely, 40 Mich. 367, 29 Am. Rep. 539; Lincoln V. Worcester. 8 Cush. (Mass.) 55; Briggs v. Lewiston, 29 Me. 472; Tliomas v. Burlington, 69 Iowa, 140, 28 N. W. 480; State v. Nelson, 41 Minn. 25, 42 N. W. 548, 4 L. R. A. 300; Westlake v. St. Louis, 77 Mo. 47, 46 Am. Rep. 4; City of Marshall v. Snediker, 25 Tex. 460, 78 Am. Dec. 534; Smith v. Farrelly, 52 Cal. 77; Stephan v. Daniels, 27 Ohio St 527. 496 ACTIONS. (Ch.ld the manner provided for redressing injuries arising ex con- tractu.^^ Appearance to actions may be entered only by at- torney, since corporations cannot appear in person.-* Bxecntion. Actions may be prosecuted to judgment against the munici- pality as against any other corporation or person; but in most states the mode of executing the judgment is not identical. In some states the judgment is allowed to be executed by the ordinary writ of fieri facias issued against the property of the municipality.^^ It may then be levied upon such goods and chattels, lands and tenements, owned by the municipality as are not indispensable to the public convenience and safety.^* But the doctrine prevailing in America is that municipal prop- erty is not subject to levy on either attachment or execution. ^^ The substitute for fieri facias in such cases is mandamus against the municipality and its officers commanding the sat- isfaction of the debt out of the municipal treasury,^® and, if necessary, a tax levy to raise the funds required therefor.^'' 21 Ante, § 13. 2 2Arn. Mun. Corp. p. 28; Coke, Lit. c. 28, 66; Case of Sutton's Hospital. 10 Coke, 30. But see Sharp v. New York, 31 Barb. (N. Y.) 572. 23 City of Independence v. Trouvalle, 15 Kan. 70; Gabler v. Eliza- beth, 42 N. J. Law, 79; DARLINGTON v. MAYOR, 31 N. Y. 164, 88 Am. Dec. 248; Mayor, etc., of Birmingham v. Rumsey, 63 Ala. 352. 24 Brown v. Gates, 15 W. Va. 131; City of New Orleans v. Insur- ance Co., 23 La. Ann. 61; Same v. Morris, 105 U. S. 600, 26 L. Ed. 1184; Freem. Ex'ns, §§ 22, 126. 2 5 No execution can issue against a municipal corporation. Village of Sheridan v. Hibbard, 19 111. App. 421; Id., 119 111. 307, 9 N. E. 901; City of Cairo v. Allen, 3 111. App. 398; City of Flora v. Naney, 136 111. 45, 26 N. E. 645; Mouaghan v. Philadelphia, 28 Pa. 207; City of McGregor v. Cook (Tex.) 16 S. W. 936; Emeric v. Oilman. 10 Cal. 404, 70 Am. Dec. 742; Townsend v. Greeley, 5 Wall. (U. S.) 326, 18 L. Ed. 547; Crane v. Fond du Lac, 16 Wis. 196; Curry v. Savannah, 64 Ga. 290, 37 Am. Rep. 74. 26 Gooch V. Gregory, 65 N. C. 142: City of Blooniiugton v. Brokaw, 27 Butz V. Muscatine, 8 Wall. (U. S.) 575, 19 L. Ed. 490; Coy v. City Council, 17 Iowa. 1. S."> Am. Dec. 539. § 176) PLAINTIFF IN ACTIONS EX DELICTO, 497 PLAINTIFF IN ACTIONS EX DELICTO. 176. If a municipality suffers an injury to any corporate right or property from the tortious act or conduct of anotlier corporation or person, it may have redress therefor by the proper common-la'w action, or its modern statutory substitute. A municipal corporation may suffer injury in its property from the wrongful acts or omissions of other persons or cor- porations. Some of these may be redressed, as shown herein- before,^® by action for penalty for breach of municipal ordi- nance ; others may not be provided for in the municipal code. But whether the wrong- done is or is not within the prohibi- tion of the municipal ordinance, the courts are open to the municipality for the vindication of its rights and the redress of its wrongs according to the course of the common law ; and, like any other person or corporation suffering an injury from tortious conduct of another, the municipality may bring suit and recover damages to compensate its loss.^" 77 III. 194; Charnock v. Colfax, 51 Iowa, 70, 50 N. W. 286, 33 Am. Rep. 116; Klein v. New Orleans, 99 U. S. 149, 25 L. Ed. 430; Amy V. Galena, 10 Blss. 263, 7 Fed. 163; Monagban v. Philadelphia, 2H Pa. 207 ; United States v. New Orleans (C. C.) 17 Fed. 483. 2 8 Ante, § 76. 29 Whitfield V. Longest, 28 N. C. 2G8; City of Bridgeport v. Rail- road Co., 15 Conn. 475; Union Coal Co. v. La Salle, 136 111. 119, 26 N. E. 506, 12 L. R. A. 326; Jersey. City v. Dummer. 20 N. J. Law, 86, 40 Am. Dec. 213; Town of Castleton v. Langdon. 19 Vt. 210; City of Winona v. Huff, 11 Minn. 119 (Gil. 75); Town of Bath v. Boyd, 23 N. C. 196; Weeping Water v. Reed, 21 Neb. 261, 31 N. W. 797. Ing.Coep. — 32 498 ACTIONS. (Ch. 19 DEFENDANT IN ACTIONS EX DELICTO. 177. For any tort committed or permitted by a municipal cor- poi'ation, an action lies against it to any one sustain- ing loss or damage therefrom in person or property. How a municipal corporation may be guilty of tort has been set forth at length in a previous chapter."" Whenever, under the rules there stated, a municipality commits or permits a tort, the person sustaining damage therefrom may redress his wrong by the appropriate common-law action, which may be case, trespass, detinue, trover, or replevin, according to the nature of the wrong done.^^ Ejectment also, and entry and detainer, may be brought upon proper facts against the municipality as well as by it.^^ Qui Tarn Actions. It has also been held that a municipality, as well as a nat- ural person, is liable to a qui tam action provided by statute, to be brought by any private person to recover a penalty im- posed for nonfeasance or misfeasance in the matter of a stat- utory duty.^^ Not Liable — When. But the municipal corporation is not liable to an action ex delicto unless it has committed or permitted a tort. This self- 30 Chapter 16. 31 Moulton V. Scarborough, 71 Me. 2G7, 36 Am. Rep. 308; City of Pekin v. McMahon, 154 111. 141, 39 N. E. 484, 27 L. R. A. 200, 45 Am. St. Rep. 114; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Town of Suffolk v. Parker, 79 Va. 660, 52 Am. Rep. 640; First Parish in Sudbury v. Stearns, 21 Pick. (Mass.) 148; School Dist. No, 5 V. Lord, 44 Me. 374; City of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638; Chadbourne v. Newcastle, 48 N. H. 196; Williams v. New Orleans, 23 La. Ann. 507; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 46. 3 2 Sower V. Philadelphia, 35 Pa. 231; City of Boston v. Robbins, 126 Mass. 384; Armstrong v. St. Louis, 69 Mo. 309, 33 Am. Rep. 499. S3 Bronson v. Washington, 57 Conn. 346, 18 Atl. 264. § 177) DEFENDANT IN ACTIONS EX DELICTO. 499 evident proposition needs attention as a warning against de- ceptive appearances. Private injuries are often sustained from the act or neglect of municipal officers, contractors, or em- plo3''es, for which no action lies against the municipality. Such cases are embraced in three classes : (1) Governmental acts ; (2) acts ultra vires ; (3) unauthorized acts. A wrongful act done by any one without authority from the municipality is not the act of the corporation.^* A wrongful act by the governing body of a municipality, or any officer or contractor, which is wholly outside the charter powers of the corpora- tion, resulting in private injury, is not the tort of the munici- pality, but of the persons committing it.^^ The act of the mu- nicipality, as the agency of the state for the performance of governmental functions, is not, in law, the act of the cor- poration, but of the state ; ^'^ and therefore, unless the sov- ereign condescends to be sued, no action will lie either against it or its agent.^'^ In fine, two elements are indispensable to 3* Ante, § 145; Everson v. Syracuse, 100 N. Y. 577, 3 N. E. 784: City of Corsicana v. White, 57 Tex. 382; Black v. Columbia, 19 S. C 412, 45 Am. Rep. 785; Perley v. Georgetown, 7 Gray (Mass.) 464; Barney v. Lowell, 98 Mass. 571; Dooley v. Sullivan, 112 Ind. 451, 14 N. E, 566, 2 Am. St. Rep. 209; Bryant v. St. Paul, 33 Minn. 289, 23 N. W. 220, 53 Am. Rep. 31; Board of Com'rs of Montgomery Co. V. Fullen, 111 Ind. 410, 12 N. E. 298. 3 5 Ante, § 140; City of Albany v. Cunliff, 2 N. Y. 165; Morrison v. Lawrence, 98 Mass. 219; Campbell's Adm'x v. Montgomery, 53 Ala. .527, 25 Am. Rep. 656; Conelly v. Nashville, 100 Tenn. 262, 46 S. W. 565. 36 Russell V. Tacoma, 8 Wash. 156. 35 Pac. 605, 40 Am. St. Rep. 895; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375, 94 Am. Dec. 461; Ham v. New York, 70 N. Y. 459; SNIDER v. ST. PAUL, 51 Minn. 466, 53 N. W. 763, 18 L. R. A. 151; WHEELER v. CIN- CINNATI, 19 Ohio St. 19, 12 Am. Rep. 368; Mead v. New Haven, 40 Conn. 72, 16 Am. Rep. 14; Hafford v. New Bedford, 16 Gray (Mass.) 297; Irvine v. Chattanooga, 101 Tenn. 291, 47 S. W. 419. 3 7 HAYES V. OSHKOSH, 33 Wis. 314, 14 Am. Rep. 760; Max- milian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; Welsh v. Rut- land, 56 Vt. 228, 48 Am. Rep. 762; DARGAN v. MOBILE, 31 Ala. 469, 70 Am. Dec. 505; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980; Elliott v. Philadelphia, 75 Pa. 347, 15 Am. Rep. 591. 500 ACTIONS. (Ch. 10 such actions : (1) The wrong must be at the hands of the corporation; (2) it must be a tort — i. e., an actionable injury. MANDAMUS. 178. The writ of mandamus is granted by the courts against a municipality and its officers for rP'fusing or culpa- bly neglecting to perform any corijorate or official duty, ministerial in kind, the injury resulting from which may not be adequately redressed by any other legal remedy. Incidentally it has hitherto appeared that the writ of man- damus is used against a municipality as a substitute for the writ of fieri facias ; ^* but this is not the only, nor, indeed, the most frequent, occasion for the use of this extraordinary pro- cess against a municipality. It is no longer generally con- sidered in America a prerogative writ, but is a common method of redressing private as well as public injuries suffered from the misconduct of state or municipal officers in neglecting or refusing to perform plain ministerial duties.^® It has been employed in the United States not only to compel 3 8 Ante, § 175 (execution). 3 9 United States v. Hitchcock, 19 App. D. C. (U. S.) 333; Kentucky V. Dennison, 24 How. (U. S.) 66, 16 L. Ed. 717; Trayuor v. Beck- ham, 74 S. W. 1105, 25 Ky. Law Rep. 283; Id., 76 S. W. 844, 25 Ky. Law Kep. 981. Mandamus will lie to compel the performance of purely municipal duties incumbent on an officer by virtue of his office, and concerning which he has no discretionary powers. Warmolts v. Keegan (N. J.) 54 Atl. 813; Brooklyn Teachers' Ass'n v. Board, 85 App. Div. 47, 83 N. Y. Supp. 1. Where the duty of the officer involves discretion or judgment, a wi'it of mandamus will issue to compel him to act and decide, but not to direct in what way or in whose favor he shall decide. Kim- berlin v. Commission, 104 T'ed. 653, 44 CCA. 109; Elliott v. Detroit, 121 Mich. 611, 84 N. W. 820. See Rex v. Stepney, 71 Law J. K. B. 238, [1902] 1 K. B. 317. But see Town of Cicero v. People, 105 111. App. 406. I I § 178) MANDAMUS. 501 the induction of a commissioned officer into his office,*" and to compel the performance of a municipal duty,*^ but also against the corporation and its delinquent officer to compel them to correct an erroneous assessment for taxation;*^ to audit a municipal claim ;*^ to issue a municipal warrant to pay the same; ** to satisfy a judgment; *^ to pay for property *o state V. Sherwood. 15 Minn. 221 (Gil. 172), 2 Am. Rep. 116; State V. Smith (Mo.) 15 S. W. 614; Williams v. Rahway, 33 N. J. Law, 111. '"^^ 41 People V. Bloomington, 63 111. 207; Webster v. Chicago, 83 111. 458. 42 People V. Board. 39 Misc. Rep. 162, 79 N. Y. Supp. 145; People V. Molloy, 161 N. Y. 621, 55 N. E. 1099; People v. Wilson, 119 N. Y. 515, 23 N. B. 1064. 43 People V. Board, 66 App. Div. 66, 72 N. Y. Supp. 568; People r. Coler, 48 App. Div. 492, 62 N. Y. Supp. 964. Where a board of county commissioners disallowed a claim for services rendered the county on the advice of the county attorney that the claim was illegal, and the board had no power to audit or allow any of its items, mandamus would lie to compel the board to audit the claim on its merits if there was any item in the claim which the board had power to allow. Chipman v. Auditors, 127 Mich. 490, 86 N. W. 1024. Mandamus will lie to compel commission- ers to act on a claim when they have refused to act, but not to di- rect their action. Robey v. Com'rs, 92 Md. 150, 48 Atl. 48. See People v. Mole, 85 App. Div. 33, 82 N. Y. Supp. 747. 4 4 The owner of a city warrant may by mandamus compel its payment, where it is legally issued by the city, and there are suffi- cient funds in the treasury. Wyker v. Francis, 120 Ala. 509, 24 South. 895; Wright v. Kinney, 123 N. C. 618, 31 S. E. 874. But the Supreme Court, in its discretion, may revise a mandamus on a city officer to sign a warrant to pay a claim when it appears that the relator should establish his right in a proceeding in which the city might present a defense. Padavano v. Fagan, 66 N. J. Law, 167, 48 Atl. 998. 45 City of Helena v. U. S., 104 Fed. 118, 43 C. C. A. 429; Marion Co. V. Coler, 75 Fed. 352, 21 C. C. A. 392. Mandamus will lie to compel a city to make an authorized tax levy to pay a debt against it. City of Sherman v. Langham (Tex.) 40 S. W. 740, 39 L. R. A. 258; Stevens v. Miller, 3 Kan. App. 192, 43 Pac. 439. But where a city has already levied a tax to the limit allowed by 502 ACTIONS. (Ch. 19 taken by eminent domain ; *® to pay a specific sum of money according to a particular promise to satisfy bonds or matured coupons;*^ to issue bonds to pay for a public improvement completed or in progress;*^ to include certain items in a budget; *^ to deliver office and records thereof to an officer; •'" to apportion revenues and appropriate particular funds as re- quired by law ; °^ to observe and enforce civil service regula- tions ; °^ and generally to do and perform any corporate or law, the proceeds of which have been used for necessary city ex- penses, it will not be compelled to levy an additional tax to pay out- standing city warrants. Portland Sav. Bank v. Montesano, 14 Wash. 570, 45 Pae. 158; City of Sherman v. Smith (Tex.) 35 S. W. 294. 46 Rudisill V. State, 40 Ind. 485; Dodge v. Essex Co., 3 Mete. (Mass.) 380. 4 7 Fleming v. Dyer (Ky.) 47 S. W. 444. 48 PEOPLE V. BATCHELLOR, 53 N. Y. 128, 13 Am. Rep. 480; Miller v. Committee, 24 N. J. Law, 54; Higgins v. Chicago, 18 111. 276. If the common council of a city neglect to proceed to open a street after the award of damages to the owners on the lands taken for the street has been made and confirmed by lapse of time in which to make an appeal, mandamus will lie to compel them to proceed. People V. Common Council, 20 How. Prac. (N. Y.) 491. 49 Barrett v. New Orleans, 33 La. Ann. 542. A writ of mandamus will not be granted to compel the mayor of a city to include in the annual budget an appropriation to pay re- lator's judgment against the city, when the budget has already been made, and the taxes levied before the time the writ could issue. State ex rel. Foy v. New Orleans, 49 La. Ann. 946, 22 South. 370. 5 Stevens v. Carter, 27 Or. 553, 40 Pac. 1074, 31 L. .R. A. 342; People V. Kilduff, 15 111. 492, 60 Am. Dec. 769. But when an office is filled by an actual incumbent exercising its functions de facto and under color of right, mandamus will not lie to compel him to turn over the books of the ofliee to another, the question of title to the office being involved; quo warranto being the proper remedy. Ashwell v. Bullock, 122 Mich. 620, 81 N. W. 577; Pipper v. Carpenter, 122 Mich. 6SS, 81 N. W. 962. 51 Ingerman v. State, 128 Ind. 225, 27 N. E. 499; City of New Or- leans V. TJ. S., 49 Fed. 40, 1 C. C. A. 148; Hunter v. Mobley, 26 S. 0. 192, 1 S. E. 670; State v. White, 29 Neb. 288, 45 N. W. 631. 62 People V. Hertle, 46 App. Div. 505, 60 N. Y. Supp. 23. § 1T8) MANDAMUS. 503 ofificial duty ministerial in its nature, plainly required by law, and for which no other adequate legal remedy is provided. ^^ Refused When. Mandamus is not granted to compel the performance of any legislative or judicial function,^* or the discharge of any dis- cretionary duty.^^ The tremendous power of this extraordi- nary writ is only to be mvoked and exercised by the courts when there is a concurrence of three essential conditions : (1) The municipal duty must be plain and ministerial ; *® (2) the right of the relator must be clear and controlling; ^^ (3) there must be lack of any other adequate legal remedy.^* 5 3 Territory v. Crum, 13 Okl. 9, 73 Pac. 297; State v. Jelks, 138 Ala. 115, 35 South. 60. 54 State ex rel. New Orleans & C. R. Light & Power Co. v. St. Paul, 110 La. 722, 34 South. 750. A court of equity has no power to compel a city to erect a sewer. Horton v. Nashville, 72 Tenn. (4 Lea) 39, 40 Am. Rep. 1; McCoy v. State, 2 Marv. (Del.) 543, 36 Atl. 81; Patterson v. Taylor, 98 Ga. 646, 25 S. E. 771; Board of Health v. People, 102 111. App. 614. Mandamus will not lie unless there is a palpable abuse of discretion. People v. Van Cleave. 183 111. 330, 55 N. E. 698, 47 L. R. A. 795; Commonwealth v. Park, 10 Phila. (Pa.) 445; People v. Listman, 84 App. Div. 633, 82 N. Y. Supp. 7S4. 5 5 The Supreme Court will not attempt by mandamus to control the discretionary powers of the district court. State v. Stull (Neb.) 96 N. W. 121; United States v. Hay, 20 App. D. C. 576. But where a public officer is guilty of so gross an abuse of dis- cretionary power or evasion of duty as to amount to a refusal to perform the act enjoined, or to act at all in contemplation of law, mandamus will afCord a remedy. People v. Board, 176 111. 576, 52 N. E. 334. 56 State v. Jelks, supra; Traynor v. Bockham, 25 Ky. Law Rep. 283, t4 S. W. 1105. When the duties of a public officer are merely ministerial, man- damus is the proper remedy to compel a performance. People v. Van Cleave, supra; Orman v. People (Colo.) 71 Pac. 430. 57 Phoenix Iron Co. v. Commonwealth, 113 Pa. 563, 6 Atl. 75; State V. McCabe, 74 Wis. 481, 43 N. W. 322; People v. Johnson, 100 111. 537, 39 Am. Rep. 63. 68 Councils of Reading v. Commonwealth, 11 Pa. 196, 51 Am. Dec. 504 ACTIONS. (Ch. ID Moreover, it is to be noted that while the writ may be issued upon the relation of a private person for the enforcement of his personal rights, when the interest of the public is to be subserved, or the right of the state to be enforced, the judicial machinery can be set in motion by the attorney general only.^® Under these well-recognized and wholesome regulations the courts have refused mandamus to compel the issuance of a discretionary license by a mayor ; '" the approval of an offi- cial bond;'^ the enforcement of a private contract;"^ the levy of a tax to satisfy a collusive judgment upon ultra vires bonds; ^^ the raising of revenue for an unauthorized purpose f* the signing of bonds in escrow issued under an unconstitu- tional statute; ^^ the removal of electric poles from side- 534; People v. Olds, 3 Cal. 167, 58 Am. Dec. 398; PEOPLE v. BROOKLYN, 1 AYend. (N. Y.) 318, 19 Am. Dec. 502. 5i> People V. Inspectors, 4 Mich. 187; In re Wellington, 16 Pick. (Mass.) 87, 26 Am. Dec. 631; Scriptm-e v. Burns, 59 Iowa, 70, 12 N. W. 760. 6 Deehan t. Johnson, 141 Mass. 23, 6 N. E. 240; People v. Scully, 23 Misc. Rep. 732, 53 N. Y. Supp. 125. But where an applicant has complied with all legal requirements, and the officer, without reason, refuses to issue the license, he may be compelled by mandamus. City of St. Louis v. Weitzel, 130 Mo. 600, 31 S. W. 1045; People v. Perry, 13 Barb. (N. Y.) 206; Dean v. Campbell (Tex.) 59 S. W. 294; Bankers' Life Ina Co. v. Rowland, 73 Vt. 1, 48 Atl. 435, 57 L. R. A. 374. 61 Knox Co. V. Johnson, 124 Ind. 145, 24 N. E. 148, 7 L. R. A. 684, 19 Am. St. Rep. 88; State ex rel. Moulin v. New Orleaus, 49 La. Ann. 1322, 22 South. 354. 6 2 Parrott v. Bridgeport, 44 Conn. 180, 26 Am. Rep. 439. 6 3 Union Bank of Richmond v. Commissioners, 119 N. C. 214, 25 S. B. 966, 34 L. R. A. 487. 6 4 Where the statute authorized a county to subscribe for stock in a railroad company, and issue its bonds therefor, limiting its power to provide for the paj'ment of them to an annual special tax of a certain percentage, and other laws authorized the levy of a tax for general purposes upon the assessed value of the taxable property of the county, it was held that in the absence of further legislation mandamus would not lie to compel the levy of a tax. United States V. County of Macon, 99 U. S. 582, 25 L. Ed. 331. 6 5 Mandamus lies to compel a party to do that which it is his duty § 178) MANDAMUS. 505 walks; ^' the revocation of municipal permission for placing them there ;®^ the delivery of a bank check ;'"^ the exclusion of territor}^ from the municipal boundaries;®^ the removal of a picture from the rogues' gallery ; ""^ the closing of a contract with an alleged lowest bidder or other person ;'^^ or the per- formance of any other municipal or official duty, legislative, judicial, or discretionary, and especially where the relator's right is not plain and controlling, or he has other remedy at law.'^^ to do; but it confers no new authority, and the party to be compelled must have authority to do the act. Brownsville Taxing Dist. v. Loague (1888) 129 U. S. 493, 9 Sup. Ct. 327, 32 L. Ed. 780. 6 6 Commonwealth v. Borough of West Chester, 9 Pa. Co. Ct. R. 542. Since the duties of municipal officers authorized to award contracts are not ministerial, but such officers are entrusted with discretionary authority, mandamus will not lie to compel them to cliange their deci- sion on such question in the absence of fraud or collusion. Potts v. Philadelphia, 8 Pa. Dist R. 728. 67 Commonwealth v. West Chester, supra; Dechert v. Common- wealth, 113 Pa. 229, 6 Atl. 229. 6 8 Anderson v. Detroit, 124 Mich. 471, 83 N. W. 145. 69 Young V. Carey, 80 111. App. 601. But see Steele v. Willis, 23 Ky. Law Rep. 826, 64 S. W. 417. 7 People V. York, 27 Misc. Rep. 658, 59 N. Y. Supp. 418. 71 Talbot Pav. Co. v. Detroit, 109 Mich. 657, 67 N. W. 979, 63 Am. St. Rep. 604. The discretion given by a city charter to the common council to let public contracts to the lowest bidder cannot be controlled by mandamus. Brown v. Houston (Tex. Civ. App.) 48 S. W. 760. 7 2 Cannon v. Board, 24 R. I. 473, 53 Atl. 637; Edward C. Jones Co. V. Guttenberg, 66 N. J. Law, 659, 51 Atl. 274; Jones v. Fonda, 85 App. Div. 265, 83 N. Y. Supp. 1012; Storer Post, No. 1, G. A. R. v. Page, 70 N. H. 280, 47 Atl. 264. A »writ of mandamus will only issue, requiring the officer to do something therein specified. Hoover v. Keep, 10 Kulp (Pa.) 59, 14 York Leg. Rep. 62; United States v. Wight, 15 App. D. C. 463. But where there is a reasonable uncertainty of the right of an action at law, mandamus will lie. People v. Treauor, 15 App. Div. 528, 44 N. Y. Supp. 528. 506 ACTIONS. (Ch. 19 QUO W^ARRANTO. 179. A quo Ttrarranto proceeding, either common-lanv or statn- tory, may be instituted against a municipality for usurping a public francliise, oi* against any person for usurping a municipal o£&ce. The key to this writ is found in the literal translation of its name: "By what authority?" The writ issued in the name of the king to the person or corporation alleged as usurping a franchise or an office was a prerogative writ at common law, demanding of the defendant to show by what warrant or authority the holding of the office or exercise of the franchise could be justified ; and upon failure of the defendant to show a proper legal warrant judgment of ouster followed.'^' The common-law writ is not in use in America; '''* but the princi- ples controlling it are recognized as part of the common law, and control the proceedings on information in the nature of quo warranto prevailing in the United States, either under statute or by judicial recognition.'^^ It may be used against a municipality upon information by the attorney general for the purpose of testing certain power exercised by it, or the va- lidity of its charter.''® The proceeding may likewise be insti- ls It originally issued only at the instance of the sovereign against any person who usurped any franchises or liberty against the king, or for misuser or nonuser of franchises or privileges granted by him. State V. Curtis, 35 Conn. 374, 95 Am. Dec. 2G3; Commonwealth v. Murray, 11 Serg. & R. (Pa.) 73, 14 Am. Dec. 614. 74 Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722; Commonwealth v. Cluley, 50 Pa. 270, 94 Am. Dec. 75. 7 5 State V. Portage City Water Co., 107 Wis. 441, 83 N. W. 697; State V. Harris, 3 Ark. 570, 36 Am. Dec. 460; State v. Evans, 3 Ark. 585, 36 Am. Dec. 468; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242 ; Commonwealth v. Arrison, 15 Serg. & R. (Pa.) 127, 16 Am. Dec. 531; People v. Hartwell, 12 Mich. 508, 86 Am. Dec. 70. 7 6 Moore v. Seymour (N. J. Sup.) 55 Atl. 91. Quo warranto proceedings to oust a municipal cori)oration from the exercise of a franchise which it usurps must be brought against § 179) QUO WARRANTO. 507 tuted on private information against a person claiming a municipal office for the purpose of testing his title thereto.'''' A clear distinction in practice between mandamus and quo warranto for this purpose is shown in the rule that mandamus will not lie if there be color of title in the alleged usurper, for under this writ questions of title cannot be tried ; neither can an incumbent be expelled from office; ^^ whereas in quo war- ranto the question of title to the office is open for trial and decision, and the incumbent may be ousted from office.'^® But a private person cannot institute a proceeding in quo warranto to disturb a corporation, except under the approval of the attorney general ; and even then not unless he have an in- ,terest in the subject-matter, and has not consented to the usurpation. ^° Generalizations upon this writ are hazardous. the corporation itself, and not against its officers. State ex rel. Crow V. Fleming, 158 Mo. 55S, 59 S. W. 118; School Dist. v. Smith, 90 Mo. App. 215; State v. Mansfield (Mo. App.) 72 S. W. 471; State V. McLean Co., 11 N. D. 35G, 92 N. W. 385. 7T Marshall v. Board, 100 111. App. 65; Id., 201 111. 9, 66 N. B. 314; Ptacek V. People, 94 111. App. 571; Id., 194 111. 125, 62 N. E. 530: Gilbert v. Craddock, 67 Kan. 346, 72 Pac. 869; Ellis v. Greaves, 82 Miss. 36, 34 South. 81; Miller v. Same, Id.; State v. Leischer, 117 Wis. 475, 94 N. W. 299. T8 Maxwell v. Board, 139 Cal. 229, 72 Pac. 996; Ashwell v. Bullock, 122 Mich. 620, 81 N. W. 577; Pipper v. Carpenter, 122 Mich. 688, 81 N. W. 962; Lyon v. Board, 120 N. C. 237, 26 S. E. 929. 79Demar v. Boyne, 103 III. App. 464; Casey v. Chase, 64 N. J. 207, 44 Atl. 872; Robertson v. Bayonne, 58 N. J. Law, 326, 33 Atl. 734; Clayton v. Board, 60 N. J. Law, 364, 37 Atl. 725; Simon v. Hoboken, 52 N. J. Law, 367, 19 Atl. 259; Commonwealth v. Cor- nell, 5 Lack. Leg. N. (Pa.) 332 ; State v. Mott, 111 Wis. 19, 86 N. W. 569 ; State v. Broatch (Neb.) 94 N. W. 1016 ; State v. Conser, 24 Ohio Cir. Ct. R. 270; State v. Wheatley, 160 Ind. 183. m N. E. 684; Otis V. Lane (N. J. Err. & App.) 54 Atl. 442; Nolen v. State, 118 Ala. 154, 24 South. 251; Gray v. State, 19 Tex. Civ. App. 521, 49 S. W. 699. 80 Duffy V. State, 60 Neb. 812, 84 N. W. 264; State v. Agee, 105 Tenn. 588, 59 S. W. 340. 508 ACTIONS. (Ch. 19 The safe path for its use can be found only by consulting the local statutes and decisions upon this proceeding. u CERTIORARI. 180. The corporate acts and proceedings of a municipality may be inquired into by certiorari to determine juris- diction and validity. The common-law writ of certiorari cannot be employed in municipal affairs as a substitute for an appeal,^ ^ nor for the correction of errors of fact.®^ It is the proper writ for de- termining questions of jurisdiction,^* and fatal errors of law 81 In some states the courts have given judicial recognition to tlie modern substitute for the prerogative writ of the common law, and by decision and rule of court conformed the common-law procedure to the local statutes and practice; while in others the legislatures have by statute effected similar results. Each state, however, has its own peculiar method of proceeding in the nature of quo war- ranto, which is controlling in its courts. 8 2 Eels V. Bailie, 118 Iowa, 519, 92 N. W. 668; State v. Miller, 109 La. 704, 33 South. 739; State v. Superior Ct, 30 Wash. 77, 70 Pac. 256; State v. Tomkies, 49 La. Ann. 1162, 22 South. 336; Sowles v. Bailey, 69 Vt 277, 37 Atl. 751; Lawler v. Lyness, 112 Ala. 386, 20 South. 574; State v. Moehlenkamp, 133 Mo. 134, 34 S. W. 468; Jackson v. People, 9 Mich. Ill, 77 Am. Dec. 491. Common-law certiorari will not issue wliei-e the party has an adequate remedy by appeal. State v. Railroad Co., 100 Wis. 538. 77 N. W. 193; Oyster v. Bank, 107 Iowa, 39, 77 N. W. 523. See, also, Ex parte Howard-Harrison Iron Co., 130 Ala. 185, 30 South. 400; Walker v. Wantlaud, 2 Ind. T. 32, 47 S. W. 354 ; State ex rel. Bro- made v. St. Paul, 104 La. 103, 28 South. 839. 8 3 Somers v. Wescoat, 66 N. J. Law, 551, 49 Atl. 462; Nobles v. Piollett, 16 Pa. Super. Ct. 356; Appeal of Welsh, 22 Pa. Super. Ct. 392 ; Henkle v. Bussey, 50 La, Ann. 1135, 24 South. 240 ; Jackson v. People, 9 Mich. Ill, 77 Am. Dec. 491; Morse, Williams & Co. v. Baake, 68 N. J. Law, 591, 53 Atl. 693; Wilson v. Mayor, 32 N. J. Law, 365. 84 State V. District Court, 27 Mont. 441, 71 Pac. 602, 94 Am. St. Rep. 831; Nordyke & Marmon Co. v. McConkey, 7 Idaho, 562, 64 Pac. 893; Bardes v. Hutchinson, 113 Iowa, 610, 85 N, W. 797; ^^ff" § 180) CERTIORARI. 509 in proceeding-.^' To determine either of these questions it may be sued out against a municipal corporation and its com- mon council, or any other board or official exercising judicial functions, where no appeal or writ of error will lie."^ Origi- nally, this writ was confined to matters of judicial decision by inferior tribunals ; ^'' but the tendency of modern decision, and especially in the Code states, is to emplo}' it for the purpose of revising obvious acts of injustice in municipal corporations, even in matters which are apparently ministerial.'* It has accordingly been used with respect to proceedings in laying out, altering, or closing a public street.^® and in regard to local assessments and other similar proceedings.®" Gaster v. Whitcher, 117 Wis. 668, 94 N. W. 787; Sweeny v. Mayliew, 6 Idaho, 455, 56 Pac. 85 ; Bntterfield v. Treichler, 113 Iowa, 328. 85 N. W. 19. See State v. Gill, 137 Mo. 627, 39 S. W. 81; Quinchard v. Trustees, 113 Gal. 664, 45 Pae. 856; Walls v. Jersey City, 55 N. J. Law, 511, 26 Atl. 828. 8 5 In re Minnetonka Dam, 83 Minn. 464, 86 N. W. 455; State v. District Court, Id.; SIioup v. Shoup, 205 Pa. 22, 54 Atl. 476; Home Savings & Trust Co. v. District Court (Iowa) 95 N. W. 522; McKee V. Same, Id. 8 6 People V. Shaw, 34 App. Div. 61, 54 N. Y. Supp. 218; Morse v. Norfolk Co., 170 Mass. 555, 49 N. E. 925; Devlin v. Dalton, 171 Mass. 338, 50 N. E. 632, 41 L. R. A. 379; People v. Commissioners, 32 App. Div. 179, 52 N. Y. Supp. 908. Certiorari will lie to review the decision of a board of commis- sioners consenting to the discontinuance of a station, such consent being a judicial act. People v. Board, 158 N. Y. 421, 53 N. E. 163. 87 Meads v. Belt Copper Mines, 125 Mich. 45G, 84 N. W. 615. 8 8 State V. Harrison, 141 Mo. 12, 41 S. W. 971, 43 S. W. 867. It does not lie to annul proceedings of a board before it has made the final order in the matter. In re Gauld, 122 Cal. 18, 54 Pac. 272. The fiction of a municipal board of health in determining a nuisance and ordering its abatement cannot be reviewed on cer- tiorari. Hartman v. AYilmington, 1 Marv. (Del.) 215. 41 Atl. 74. 89 Dwight V. City Council, 4 Gray (Masa) 107. See Fredericks V. Hoffmeister, 62 N. J. Law, 565, 41 Atl. 722; People v, Shaw, 34 App. Div. 61, 54 N. Y. Supp. 218. 9" Wilson V. Seattle, 2 Wash. St. 543, 27 Pac. 474; People v. Cheritree, 4 Thomp. & C. (N. Y.) 289; People v. Cilon, 56 Hun, 64], 9 X. Y. Supp. 212; Moore v. Perry, 119 Iowa, 423, 93 N. W. 510. 510 ACTIONS. (Ch. 19 COMPLAINANT IN CHANCERY. 181. A mnnicipality may also resort to the court of chancery for the protection or enforcement of any equitable right or title or the use of any equitable remedy ap- propriate for its relief. Equity as well as law lends its aid to municipal corpora- tions in cases "wherein the law, by reason of its universality, is deficient" ; and so in America the courts of chancery in those states where such tribunals survive, and, where they . have succumbed to modernization, the courts clothed with equity jurisdiction will entertain the complaint of any municipality, and give it equitable remedy, wherever its equitable titles or rights have been denied, or it has suffered wrong for which the law affords no appropriate or sufficient remedy.^ ^ If a municipality is trustee or cestui que trust in a trust estate ; if it hold a lien on or an interest in property, by mort- gage or otherwise; if constructive or resulting trust may be implied in its favor; if it have suffered or is likely to suffer loss from accident, mistake, or fraud ; if it be entitled to the specific performance, reformation, or rescission of a contract; if it may demand of others exoneration, subrogation, marshal- ing, accounting, contribution, or needs the protecting aid of the puissant writ of injunction, it may go into equity and claim relief upon the same terms and conditions as any other cor- poration or person. ^^ 91 Eaton, Eq. pp. lG-18; Folley v. Passaic, 26 N. J. Eq. 216; State V. Jersey City, 30 N. J. Law, 148. Cf. In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L, Ed. 402. »2 GIRARD V. CITY OF PHILADELPHIA, 7 Wall. (U. S.) 1, 19 L. Ed. 53 (trust) ; Town of Essex v. Day, 52 Conn. 483, 1 Atl. 620 (bonds) ; Towle V. Nesmith, 69 N. H. 212, 42 Atl. 900; Ilandley v. Palmer (C. C.) 91 Fed. 948; Lackland v. Walker, 151 Mo. 210, 52 S. W. 414; Chambers v. St. Louis, 29 Mo. 543 (trust); Mclnerny v. Reed, 23 Iowa, 410 (lien); New Haven v. Railroad Co., 38 Conn. 422, 9 Am. Rep. 389 (lien); Bryant's Lessee v. McCandless, 7 Ohio, pt. 2, 135. § 181) COMPLAINANT IN CHANCERY. 511 Instances. It has accordingly been held that the corporation may have relief in equity against illegal, unauthorized, or fraudulent acts of its officers; ®^ that it may enjoin a person from car- rying on a licensed business until he has paid the license fee ; °* that equity will enforce a tax lien in favor of a municipality; ®^ that it will reform municipal bonds in the hands of holders with notice; ^° and that it will control a municipality in the execu- tion of a trust committed to it for charitable purposes,®'^ and may, if rendered necessary by the dissolution of a municipal corporation acting as such trustee, appoint its successor to that position.^* 9 3 Russell V. Tate, 52 Ark. 541. 13 S. W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193; Roper v. McWliorter. 77 Va. 214; Payne v. Eng- lish, 79 Cal. 540, 21 Pac. 952; Clapp v. Spokane (C. C.) 53 Fed. 515. 9* City of New Orleans v. Becker, 31 La. Ann. 644. 9 5 Mclnerny v. Reed, 23 Iowa, 410; City of New Haven v. Rail- road Co., 38 Conn. 422, 9 Am. Rep. 399. 96 Town of Essex v. Day, 52 Conn. 483, 1 Atl. 620. 8- In A'idal v. Girard's Ex'rs (1844) 2 How. (U. S.) 127, 11 L. Ed. 205. the court said : "Where a corporation [municipal] has this power [to take real and personal estate by deed and also by devise], it may also take and hold property in trust in the same manner and to the same extent that a private person may do. If the trust be repugnant to or inconsistent with the proper purpose for which the corporation was created, it may not be compellable to execute it, but the trust (if otherwise unexceptionable) will not be void, and a court of equity will appoint a new trustee to enforce and perfect the objects of the trust." 98 Neither the identity of a municipal corporation nor its right to hold property devised to it is destroyed by a change of name or .in enlargement of its area. GIRARD v. PHILADELPHIA, 7 Wall. (U. S.) 1, 19 L. Ed. 53. 512 ACTIONS. (Ch. 19 DEFENDANT IN CHANCERY. 182. Chancery will also grant equitable relief against a mu- nicipality Tvhenever there is no adequate and unem- barrassed remedy at laiv for the injury complained of; or to prevent a multiplicity of suits. When neither the common-law actions nor the extraordinary remedies treated in this chapter can furnish adequate redress for wrong done or threatened by a municipality, the injured party may confidently appeal to equity for relief. "Generally speaking, equity will interfere in favor of or against munici- pal corporations on the same principles by which it is guided in cases between other suitors. For the reason that these cor- porations are intrusted for defined objects, or for public pur- poses, with large powers, the courts have evinced some anxiety not to allow their authority to be used to oppress the inhabit- ants within their jurisdiction; and it may safely be affirmed that there is a remedy, according to the nature of the case, by certiorari, mandamus, quo warranto, prohibition, appeal, in- dictment, civil action, or in equity, for all injurious abuses of power and all invasions of the legal rights of persons sub- jected to municipal control or affected by municipal action." ®® The grounds of equitable jurisdiction have been adverted to in the preceding section, and upon any of them a creditor, taxpayer, contractor, or other person suffering an injury from a municipality relievable in equity may have the aid of its process and jurisprudence in the attainment of justice.^"** 99 2 Dill. Mun. Corp. § 908. 100 One or more of the taxpayers of a city may sue to enjoin ultra vires of the city which may injure them as taxpayers. City of Alpena v. Circuit Judge, 97 Mich. 550, 56 N. W. 941. But a bill in chancery against a municipal corporation to prevent a usurpation of power by the corporate authorities, or the violation of a duty imposed by law, may be filed by property holders or tax- payers. New Orleans, M. & C. R. Co, v. Dunn, 51 Ala. 128. § 182) DEFENDANT IN CHANCERY. 513 Dillon's Rules. After an able and exhaustive consideration of the cases ad- judged in the federal and state courts upon the right of tax- payers of a municipality to resort to a court of equity to pre- vent an illegal disposition of moneys of the corporation, or the illegal creation of a debt,^°^ Judge Dillon, with his wonted acu- men, sets forth the following conclusions upon equitable juris- diction in such cases : ^"^ "(1) T' e proper parties may resort to equity, and equity will, in the absence of restrictive legislation, entertain juris- diction of their suit against municipal corporations and their officers when these are acting ultra vires, or assuming or ex- ercising a power over the property of the citizen, or over cor- porate property or funds, which the law does not confer upon them, and where such acts affect injuriously the property owner or the taxable inhabitant. ^"^ But if in these cases the property owners or the taxable inhabitants can have full and adequate remedy at law, equity will not interfere, but leave them to their legal remedy.^"* "(2) That, in the absence of special controlling legislative provision, the proper public officer of the commonwealth which created the corporation and prescribed and limited its powers may, in his own name, or in the name of the state on behalf of residents and voters of the municipality, exercise the authority, in proper cases, of filing an information or bill in equity to prevent the misuse of corporate powers, or to set aside or correct illegal corporate acts.^°^ 101 The Liberty Bell (C. C.) 23 Fed. 843; City of New London v. Brainard, 22 Conn. 552; City of Rock Island v. Huesing, 25 111. App. UOO; Mitchell v. Wiles, 59 Ind. 364. 102 £ Dill. Mun. Corp. § 922. 103 Mayor, etc., of Baltimore v. Gill, 31 Md. 375; CITY OF VAL- PARAISO V. GARDNER, 97 Ind. 1, 49 Am. Rep. 416; Austin v. Cojigeshall. 12 R. I. 329, 34 Am. Rep. 648; Bissell v. Kankakee, 64 111. 249, 21 Am. Rep. 554. 104 Christie v. Molden, 23 W. Ya. 667. 105 People V. Lowber, 28 Barb. (N. Y.) 65; Bell v. Platteville. 71 IXG.CORP.— .33 514 ACTIONS. (Ch. 19 "(3) That the existence of such a power in the state or its proper public law officer is not inconsistent with the right of any taxable inhabitant to bring a bill to prevent the corporate authorities from transcending their lawful powers, where the effect will be to impose upon him an unlawful tax or to in- crease his burden of taxation.^"' Much more clearly may this be done when the right of the public officer of the state to interfere is not admitted, or does not exist ; and in such case it would seem that a bill might properly be brought in the name of one or more of the taxable inhabitants for themselves and all others similarly situated, and that the court should then regard it in the nature of a pubHc proceeding to test the va- lidity of the corporate acts sought to be impeached, and deal with and control it accordingly." ^**^ Rule in New York. From these conclusions the courts of New York dissent on the ground that private persons may not "assume to be cham- pions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts." ^"^ Wis. 139, 36 N. W. 831; Steele v. Municipal Signal Co., 160 Mass. 36, 35 N. E. 105; Baldwin v. Wilbraliam, 140 Mass. 459, 4 N. E. 829; KETCHUM V. BUFFALO, 14 N. Y. 356. losHodgman v. Cliicago & St. P. Ry. Co., 20 Minn. 48 (Gil. 36); Brockman v. Creston, 79 Iowa, 587, 44 N. W. 822; Lore v. Mayor, 4 Del. Cb. 575; Cook v. Burlington. 30 Iowa, 94, 6 Am. Rep. 649; Wood V. Draper, 24 Barb. (N. Y.) 187, 4 Abb. Prac. 322. 107 City of Springfield v. Edwards. 84 111. 626; City of Grayville V. Gray, 19 111. App. 120; Kelly v. Mayor, 53 Md. 134. 108 Roosevelt v. Draper, 23 N. Y. 318. But this has since been changed by statute (1872, c. 161), and in this state a taxpayer may now maintain a suit in equity against a municipality for himself and all others in interest to enjoin an illegal contract. Armstrong V. Grant, 56 Hun, 226, 9 N. Y. Supp. 388; Newton v. Keech, 9 Hun, 355; Metzger v. Railroad Co., 79 N. Y. 171; Beebe v. Supervisors, 64 Hun, 377, 19 N. Y. Supp. 629; West v. Utica, 71 Hun, 540, 24 N. Y. Supp. 1075. § 183) INJUNCTIONS. 515 special Instances. Upon other matters of equity it has been adjudged that equity will aid creditors of dissolved corporations to collect their debts from their successors;^"* will supply defects in municipal bonds resulting from the omission of the treasurer to countersign them; ^^^ may relieve against a contractual for- feiture ;^^^ will relieve lot owners against an unfair contract for local improvement/^* INJUNCTIONS. 183. Injunction is generally recognized and nsed as an appro- priate remedy to l»e invoked both, for and against tlie municipality for tlie protection of public and private riglits, ivlien irremediable loss or damage is menaced. Formerly the courts of equity were averse to the use of the process of injunction to arrest the operations of municipal gov- ernment, upon the ground that such drastic measures better befitted the courts of law, and that interference in govern- mental matters was not an appropriate function of equity. The reckless abuse of municipal power during the last half cen- tury, and the confusion of jurisdiction under the reform pro- cedure, as well as the general tendency throughout the United States towards a relaxation of the old rules of practice, have concurred to incline the courts generally to a more liberal use of this potent process in municipal affairs ; and it is now more freely granted than formerly, not only against, but for, mu- nicipalities for the prevention of irreparable injury.^ ^^ 109 MT. PLEASANT V. BECKWITH, 100 U. S. 514, 25 L. Ed. G99. 110 Melvin v. Lisenby, 72 111. 63, 22 Am. Itep. 141. iiiTaylor v. Carondelet, 22 Mo. 105. See Maryland v. Railroad Co., 3 How. (U. S.) 534. 11 L. Ed. 714. 112 Dean v. Charlton, 23 Wis. 590, 99 Am. Dec. 205. 113 Coast Co. V. Spring Lake, 5G N. J. Eq. G15, 3G Atl. 21; Douglass r. Havrisville, 9 W. Va. 1G2, 27 Am. Rep. 548. But it will not lie to control the action of public agents, such as a 516 ACTIONS. (Ch. 19 Illustrations. Injunctions have accordingly been granted in cases without number to restrain the collection of taxes tainted with fraud, or levied or assessed without authority of law;^^* to prevent the issuance or delivery of municipal bonds invalid for like reasons ;^^° to forbid the appropriation of corporate funds to objects unlawful or ultra vires; ^^® to prevent the making of state board of arbitration, acting under legislative authority, unless irreparable injury is apparent. New Orleans City & L. R. Co. v. Board, 47 La. Ann. 874, 17 South. 418. See Potts v. Philadelphia, 23 Pa. Co, Ct. R. 212; Borough of Shamokin v. Railway Co., 196 Pa. 166, 46 Atl. 382. 114 Winkler v. Halstead, 36 Mo. App. 25; International Trading Stamp Co. V. Memphis, 101 Tenu. 181, 47 S. W. 136; Fine v. Stuart (Tenn.) 48 S. W. 371. Equity may, by injunction, stay the collection of a tax when the law has conferred no authority to levy the tax, or where a person or officer not authorized by law to exercise such a power levies a tax, or when the proper persons make the levy for purposes on the face of the levy not authorized, or for fraudulent purposes. Town of Ottawa V. Walker, 21 111. 605, 74 Am. Dec. 121. 115 Town of Clarksdale v. Broaddus, 77 Miss. 667, 28 South. 954; Town of Winamac v. Huddleston, 132 Ind. 217, 31 N. E. 561; Hodg- man v. Railway Co., 20 Minn. 48 (Gil. 36); Lynch v. Railway Co., 57 Wis. 430, 15 N. W. 743, 843. But not on the ground that the proceeds will pass into unauthorized hands. City of Tampa v. Salomonson, 35 Fla. 446, 17 South. 581; Dunbar v. Commissioners, 5 Idaho, 407, 49 Pac. 409; Board of Com'rs of Owen Co. v. Spangler, 159 Ind. 575, 65 N. E. 743. 116 Injunction will lie at the instance of a taxpayer to prevent the execution of a contract for public improvements stipulating that the contractor shall employ none but union labor. Adams v. Brenan, 177 111. 194, 52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222; Webster v. Douglas Co., 102 Wis. 181, 77 N. W. 885, 78 N. W. 451, 72 Am. St. Rep. 870 ; Murphy v. East Portland (C. C) 42 Fed. 308 ; The Liberty Bell (C. C.) 23 Fed. 843; Mitchell v. Wiles, 59 Ind. 364; Brockman v. Creston, 79 Iowa, 587, 44 N. W. 822. Where the municipal corporation appropriates money, contrary to authority, to be expended in the celebration of Independence Day, injunction by taxpaj-ers against the city and its treasurer is the ap- propriate remedy. City of New London v. Brainard, 22 Conn. 552 ; § 183) INJUNCTIONS. 517 illegal contracts ; **'^ to restrain a tax sale and a void local as- ses.iment; ^^* to prevent a change of street grade until the abutter's damages have been ascertained and paid;^^® to re- strain the perversion of a public square to purposes inconsist- ent with the dedication ; '•^° to prevent the closing of a public street; ^^^ to enjoin trades or occupations which are intrinsic- ally nuisances; ^^* and to aid in the abatement or prevention of other public nuisance/^^ Yarnell v. Los Angeles, 87 Cal. 603, 25 Pac. 767; Harney v. Railroad Co., 32 Ind. 244; City of Rock Island v. Huesing, 25 111. App. 600; Id., 128 111. 465, 21 N. E. 558, 15 Am. St. Rep. 129; Wade v. Rich- mond, 18 Grat. (Va.) 583; Bayle v. New Orleans (C. C.) 23 Fed. 843; Simmons v. Toledo, 5 Ohio Cir. Ct. R. 124. See Miller v. Bowers, 30 Ind. App. 116, 65 N. E. 559; Board v. Territory, 12 Okl. 286, 70 Pac. 792. 117 City of New London v. Brainard, 22 Conn. 552; Yarnell v. Los Angeles, 87 Cal. 603, 25 Pac. 767 ; Armstrong v. Grant, 56 Hun, 226, 9 N. Y. Supp. 388; Mooney v. Clark, 69 Conn. 241, 37 Atl. 506, 1080 ; Akron v. France, 24 Ohio Cir. Ct. R. 63 ; Poppleton v. Moores, 62 Neb. 851, 88 N. W. 128 ; Id., 93 N. W. 747. 118 Holland v. Mayor, 11 Md. 186, 69 Am. Dec. 195; Landon v. City of Syracuse, 163 N. Y. 562, .57 N. E. 1114. 119 Hurford v. Omaha, 4 Neb. 336. Injunction is the proper rem- edy to restrain a to^Ti from opening a street through a person's land, without first condemning it pursuant to law. Yates v. West Grafton, 33 W. Va. 508, 11 S. E. 8. See Village of Itasca v. Schroeder, 182 111. 192, 53 N. E. 50. 120 Village of Princeville v. Auten, 77 111. 325; Cummings v. St. Louis, 90 Mo. 259, 2 S. W. 130; Cook v. Burlington, 30 Iowa, 94, 6 Am. Rep. 649; City of Pittsburg v. Epping-Carpenter Co., 194 Pa. 31^ 45 Atl. 129; Sturmer v. Co. Ct, 42 W. Va. 724, 26 S. E. 532, 36 L. R. A. 300. 121 Hesing v. Scott, 107 111. 600. 122 Rounsaville v. Kohlheim (stable) 68 Ga. 668, 45 Am. Rep. .505; Ashbrook v. Commonwealth (cattle pens) 1 Bush (Ky.) 139, 89 Am. Dec. 616 ; Ross v. Butler (Cinders) 19 N. J. Eq. 294, 97 Am. Dec. 654 ; Catlin V. Valentine (slaughter-house) 9 Paige, 575, 38 Am. Dec. 567; Bishop v. Banks (bleating calves) 33 Conn. 118, 87 Am. Dec. 197; Coker v. Birge (stable) 9 Ga. 425, 54 Am. Dec. 347. 123 City of Huron v. Bank, 8 S. D. 449, 66 N. W. 815. .59 Am. St. Rep. 769; City of Belton v. Central Hotel Co. (Tex. Civ. App.) 516 ACTIONS. (Ch. 19 CRIMINAL PROSECUTION. 184. A municipality is indictable at common laxr for nonfea- sance or misfeasance in respect of public duties im- posed upon it by statute. This doctrine has received repeated recognition in the Eng- lish courts, where it is so extended as to include prescriptive as well as statutory duties ; but in America indictments against municipal corporations have been confined to statutory of- fenses.^ ^* The duty may be enjoined in the charter or im- posed by general statute/ ^^ A municipality is not indictable for a felony, since it is incapable of felonious intent, and can neither be hanged nor imprisoned ; ^-^ nor, indeed, can it be guilty of any misdemeanor of which mala mens is an essential ingredient/^'^ It is obvious, however, that for nonfeasance of a public duty a municipality may be guilty of a misdemean- or;^-^ and it may also be indicted for misfeasance in creat- ing a public nuisance ; ^^^ and for the performance of other acts forbidden by law which work harm and annoyance to the public. ^^*^ It has accordingly been held that a municipality is indictable for unlawfully obstructing a public highway; ^^^ 33 S. W. 297; Townsend v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441; Sammons v. Gloversville, 34 Misc. Rep. 459, 70 N. Y. Snpp. 284. 124 McClain, Cr. Law, § 182; 2 Dill. Mun. Corp. § 932. 125 HILL V. BOSTON, 122 Mass. 344, 23 Am. Rep. 332; PEOPLE V. ALBANY CORP., 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; WILD v. PATERSON, 47 N. J. Law, 406, 1 Atl. 490. 126 1 Bouv. Law. Diet. tit. "Felony." 127 state V. Agricultural Soe., 54 N. J. Law, 260, 23 Atl. 680. 128 State V. Mayor, 3 Head (Tenn.) 2(13; Mayor, etc., of Town of Chattanooga v. State, 5 Sneed (Tenn.) 578. 129 PEOPLE V. ALBANY CORP., 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; Commonwealth v. Gloucester, 110 Mass. 491. 130 State V. Barksdale, 5 Humph. (Tenn.) 154. 131 State V. Mayor, 3 Head (Tenn.) 264; State v. Dover, 46 N. H. 452. § 184) CRIMINAL PROSECUTION. 519 also for neglecting its duty to keep its streets in reasonable repair; ^^^ and in Tennessee, and perhaps some other states, a municipality is indictable for permitting a public nuisance, such as a slaughter house/^^ which annoys the inhabitants and en- dangers public health. The same doctrine is also held in some states with regard to public sewers.^^* Municipalities have also been held indictable for neglect to erect a bridge pursuant to law imposing the duty,^^^ and also for neglecting to keep municipal bridges in repair; ^^^ and in some states for neglecting to keep in repair bridges and abutments erected by railroad companies over their tracks where they cross the public streets. ^^^ Modern judicial tendency, like public sentiment, is towards assimilating corporations to natural persons in their liabilities, civil and criminal. This tendency fxuds apt expres- sion in the following words of a Massachusetts judge: "Cor- 132 state V. Mayor, 11 Huraph. (Tenn.) 216; Mayor, etc., of Town of Chattanooga v. State, supra; Commonwealth v. Trustees, 7 B. Mon. (Ky.) 38; Davis v. Bangor, 42 Me. 41; Commonwealth v. Bos- ton, 16 Pick. (Mass.) 442. 133 State V. Shelbyville Corp., 4 Sneed (Tenn.) 176. The city of Albany was held indictable for neglect to do what the common good required, where it was authorized to direct the ex- cavating, deepening, or cleansing of a basin connected with a river, so that it became fouled by the aggregation of mud and other substances, whereby a nuisance was created. PEOPLE v. ALBANY CORP., 11 Wend. (N. Y.) 539, 27 Am. Dec. 95. 134 A borough on which is imposed the duty of making regula- tions necessary for the health and cleanliness of the borough may be indfcted for permitting its sewers to become a public nuisance. Com. V. Bredin, 1G5 Pa. 224, 30 Atl. 921. Contra, Georgetown v. Commonwealth, 24 Ky. Law Rep. 2285, 73 S. W. 1011, 61 L. R. A. 673. 135 State V. Whittingham, 7 Vt. 390; State v. Madison, 63 Me. 546; State v. Hudson Co., 30 N. J. Law, 137. 136 PEOPLE V. ALBANY CORP., 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; RUSSELL v. MEN OF DEVON, 2 Term R. 667; Thomas V. Sorrell, Vaughan, 330. 137 state V. Gorham, 37 Me. 457; State v. Portland, 74 Me. 268, 43 Am. Rep. 586. 520 ACTIONS. (Ch. 19 porations cannot be indicted for offenses which derive their criminality from evil intention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason, or felony, or offenses against the person. But beyond this there is no good reason for their exemption from the consequences of unlawful and wrongful acts committed by their agents in pursuance of authority de- rived from them." ^^' 188 Commonwealth v. Bridge Proprietors, 2 Gray (Mass.) 339. I Part III. QUASI PUBLIC CORPORATIONS. CHAPTER XX. QUASI PUBLIC CORPORATIONS. 185. Nature and Extent. 186. Are Essentially Private Corporations. 187. Subject to Public Regulation and Control. 188. Legislative Control. 189. Objects and Limits of Regulation. NATURE AND EXTENT. 185. Private corporations endovred ivith sovereig:n poxrer, per- forming; public functions, rendering public service, or operating under municipal franchises, are commonly ealled quasi public corporations. Notwithstanding just criticism of the propriety of this title by various authors and judges, and their warning prophesy that it would soon fall into disuse, the term "quasi public cor- poration," which came into frequent use during the last cen- tury, still survives, and, for lack of a more appropriate and acceptable substitute, so persists in holding recognition as to be regarded as a fixture in our legal nomenclature. It de- scribes to the professional mind a class of corporations steadily increasing in number and variety, which are not wholly either public or private, and therefore not governed exclusively by the law of private corporations or the law of public corpora- tions. The object of the quasi public corporation is profit- making. It is a stock corporation voluntarily organized by its corporators. Its governing body is a meeting of stockhold- ers. Its afifairs are managed by a board of directors chosen by the stockholders. It has all the powers, properties, and in- cidents pertaining to a private corporation, and transacts its business like other private corporations. But because its busi- ness is of a public nature, because it performs public func- tions, and therefore owes duties to the public, it is usuallv en- (521) 522 QUASI PUBLIC CORPORATIONS. (Ch. 20 dowed with the sovereign power of eminent domain. Such corporations are universally recognized as forming a distinct class of private corporations, but because of their public pow- ers and service are commonly designated quasi public corpora- tions.^ In Crumley v. Watauga Water Co.,^ Jwdge Caldwell, of the Supreme Court of Tennessee, thus speaks of this class of corporations : "They are exceptions to the general rule that a person engaged in business may, at his election, and with- out good reason, refuse to deal with some other person. These exceptions embrace innkeepers, common carriers, bridge com- panies, turnpike companies, telegraph companies, telephone companies, gas companies, electric light companies, and water companies, and are based upon the public nature of the busi- ness done by such persons. Being engaged in public business under public grants, they are charged with public duties." Proceeding further, he describes them as "public corporations, as contradistinguished from private corporations." This con- tradistinction is the idea embodied in the phrase "quasi pub- lic," which we use to designate this particular class of corpora- tions. 1 Ante, § 2. 1 Thorap. Priv. Corp. § 22; Elliott, Priv. Corp. §§ 14, 91; 1 Beach, Pub. Corp. § 2; Marsh. Corp. pp. 49, 3G1; 2 Cooke, Stock, Stockh. & Corp. Law, § 891 ; Black v. Canal Co., 24 N. J. Eq. 45.5; MUNN v. ILLINOIS, 94 U. S. 113, 24 L. Ed. 77; CHICAGO, B. & Q. R. CO. V. IOWA, 94 U. S. IGl, 24 L. Ed. 94; Spring Valley Wa- ter Works V. Schottler, 110 U. S. 3.54, 4 Sup. Ct. 48, 28 L. Ed. 173; Georgia R. & Banking Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377; Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962; MINERS' DITCH CO. v. ZELLER- BACH, 37 Cal. 543, 99 Am. Dec. .300 ; Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201; West Branch Boom Co. v. Land Co., 121 Pa. 143, 15 Atl. 509, 6 Am. St. Rep. 7G6; Tinsman v. Railroad Co., 26 N. J. Law, 148, 69 Am. Dec. 565; Whiting v. Railroad Co., 25 Wis. 167, 3 Am. Rep. 30; State v. Gas Co., 37 Ohio St. 45; Rogers Park Water Co. v. Fergus (111.) 69 Am. St. Rep. 315, note; CITY OF KNOXVILLE v. WATER CO., 107 Teun. 647, 64 S. W. 1075, 61 L. R. A. S8S; Id., 189 U. S. 434, 23 Sup. Ct. 531, 47 L. Ed. 887. 2 99 Tenn. 240, 41 S. W. 1058. § 185) NATURE AND EXTENT. 523 What Classes Included. Private corporations have been jndicially declared to be quasi public which were of the nature and for the objects ex- pressed by the Hst following : Railroads ; ^ street railways ; * canals ; ' turnpikes ; ® bridges ; ^ ferries ; * navigation compa- nies;" telegraphs ; ^"^ telephones; ^^ electric light and power 3 California v. Railroad Co., 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150; Louisville, C. & C. R. Co. v. Cbnppell, Rice (S. C.) 383; Chicago Dock & Canal Co. v. Garrity, 115 III. 155, 3 N. E. 448. 4 Kellinger v. Railroad Co., 50 N. Y. 200; Elliott v. Railroad Co., 32 Conn. 579; Hiss v. Railroad Co., 52 Md. 242, 36 Am. Rep. 871; STANLEY V. DAVENPORT, 54 Iowa, 403, 2 N. W. 1064, 37 Am. Rep. 216; Texas & P. Ry. Co. v. Railway Co., 64 Tex. 80, 53 Am. Rep. 739. 8 Chesapeake & O. Canal Co. v. Key, 3 Cranch (C. C.) 599, Fed. Cas. No. 2,649 ; Ten Eyck v. Canal Co., 18 N. J. Law, 200, 37 Am. Dec. 233. 8 Mitchell V. Burlington. 4 Wall. (U. S.) 270, 18 L. Ed. 350; Knox Co. V. Kennedy, 92 Tenn. 1, 20 S. W. 311; Hadley v. Turnpike Co., •2 Humph. (Tenn.> 555; Parker v. New Brunswick. 30 N. J. Law, 395. 7 In re Towauda Bridge Co., 91 Pa. 216; Arnold v. Bridge Co., 1 Duv. (Ky.) 372. Cf. Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 420, 9 L. Ed. 773. 8 Burlington & Henderson County Ferry Co. v. Davis, 48 Iowa, 133, 30 Am. Rep. 390; Pool v. Simmons, 1.34 Cal. 621, 66 Pac. 872. 9 Lancaster v. Kennebec Co., 62 Me. 272; Commonwealth v. Alger, 7 Cush. (Mass.) 53. 10 Reed V, Telegraph Co., 135 Mo. 661, 37 S. W. 904, 34 L. R. A. 492, .58 Am. St. Rep. 609; MARR v. TELEGRAPH CO., 85 Tenn. .529, 3 S. W. 496; PINCKNEY v. TELEGRAPH CO., 19 S. C. 71, 45 Am. Rep. 765; Western Union Telegi-aph Co. v. Griswold. 37 Ohio St. 302, 41 Am. Rep. 500; Western Union Tel. Co. v. Bierhaus, 8 Ind. App. 563, 36 N. E. 161; Western Union Tel. Co. v. Neill, 57 Tex. 283. 44 Am. Rep. 589 ; Postal Tel. Cable Co. v. Schaefer, 110 Ky. 907, 62 S. W. 1119, 23 Ky. Law Rep. .344. 11 Hockett V. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201; Irwin V. Telephone Co., 37 La. Ann. 63; Telephone Tel. Co. v. Forke, 2 Willson, Civ. Cas. Ct. App. § 307; Chesapeake & P. Telegraph Co. V. Telegraph Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167; York Tele- graph Co. V. Keesey, 5 Pa. Dist. R. 366. Where a telephone company refuses to supply all in similar cir- 524 QUASI rucLic corporations. (Ch. 20 companies;*^ gas companies;^' water companies;** sewer companies;*" pipe lines ;^® grist mills;*'' grain elevators;** mining companies;** irrigation companies;*" swamp drain- cumstances with similar facilities without discrimiuation, it may be compelled to do so. State v. Telegraph Co., 61 S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870. 12 Cincinnati, H. & D. R. Co. v. Bowling Green, 57 Ohio St 336, 49 N. B. 121, 41 L. R. A. 422; Tuttle v. Illuminating Co., 50 N. Y. Super. Ct. 464; State ex rel. St. Louis Underground Service Co. V. Murphy, 134 Mo. 548, 34 S. W. 51, 34 L. R. A. 369, 56 Am. St. Rep. 515; Levis v. Newton (C. C.) 75 Fed. 884. 13 Owensboro Gaslight Co. v. Hildebrand, 19 Ky. Law Rep. 983, 42 S. W. 351; State v. Gaslight Co., 34 Ohio St. 572, 32 Am. Rep. 390; Bloomfield & R. Natural Gas Light Co. v. Richardson, 63 Barb. (N. Y.) 437; Jefferson City Gaslight Co. v. Clark, 95 U. S. 644, 24 L. Ed. 521. 1* Spring Valley Water Works v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173; CITY OF KNOXVILLE v. WATER CO., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; Id., 189 U. S. 434, 23 Sup. Ct. 531, 47 L. Ed. 887; San Diego Water Co. v. San Diego, 118 Cal. 556, 50 Pac. 633, 38 L. R. A. 460, 62 Am. St. Rep. 261. 15 For legislation creating such quasi corporations, see Rev, St. Ohio, § 3871; Sess. Laws S. D. 1890, c. 37, art. 5, §§ 10-21; Gen. St. Kan. §§ 1156, 1159, 1454. 16 West Virginia Transp. Co. v. Line Co., 22 W. Va. 600, 46 Am. Rep. 527. 17 Blair v. Cuming Co., Ill U. S. 303, 4 Sup. Ct. 449, 28 L. Ed. 457; Burlington Tp. v. Beasley, 94 U. S. 310, 24 L. Ed. 161. But see Os- borne V. Adams County, 106 U. S. 181, 1 Sup. Ct. 168, 27 L. Ed. 129; Southwest Missouri Light Co. v, Scheurich, 174 Mo. 235, 73 S. W. 496. 18 MUNN V. ILLINOIS. 94 U. S. 113, 24 L. Ed. 77. 19 Dayton Gold «& Silver Min. Co. v. Seawell, 11 Nev. 394; Hand Gold Min. Co. v. Parker, 59 Ga. 419. But see Salt Co. v. Brown, 7 W. Va. 191; Appeal of Edgewood R. Co., 79 Pa. 257. 20 Slosser v. Canal Co. (Ariz.) 65 Pac. 332; Wheeler v. Irrigation Co., 10 Colo. 582, 17 Pac. 487, 3 Am. St. Rep. 603; Combs v. Ditch Co., 17 Colo. 146, 28 Pac. 966, 31 Am. St Rep. 275; Price v. Irrigat- ing Co., 56 Cal. 431. § 185) NATURE AND EXTENT. 525 ing; '^ boom companies ; ^* levee companies; ^' and the like. ^* This list is not intended to be exhaustive, though it contains many companies which were not recognized as quasi public corporations, and were even unknown, a few decades ago. Others are being added to it as American ingenuity rapidly increases the agencies and appliances for serving the public ; and the same reasoning which makes a grain elevator a quasi public corporation seems equally applicable to certain cotton compress companies, stock yards, and slaughter houses. Cer- tain it is that legislatures and courts are influenced by the public demand for regulation of all those corporations which exercise public functions and owe duties to the public. But it is not to be understood that all corporations included in the above list are necessarily quasi public. With the rare excep- tion of highway companies, any of those in the foregoing list may be, when used only for private purposes, strictly private corporations, and therefore not subject to public regulation, nor entitled to public powers or franchises. It is of these com- panies only when serving, and to the extent that they serve, the public, that we shall treat in the following pages ; for it is then only, and only so far forth, that they are quasi public cor- porations. 21 Anderson v. Draining Co., 14 Ind. 199, 77 Am. Dec. 63; Norfleet V. Cromwell, 70 N. C. 634, 16 Am. Rep. 787; Tide Water Co. v. Coster, 18 N. J. Eq. 518, 90 Am. Dec. 634. 2 2 Weaver v. Boom Co., 28 Minn. 534, 11 N. W. 114; Lawler v. Boon! Co., 56 Me. 443; Patterson v. Boom Co., 3 Dill. (U. S.) 465, Fed. Cas. No. 10,829. 2 3 Board of Directors for Leveeing Wabash River v. Houston. 71 111. 318. 24 Louisville & N. R. Co. v. Commonwealth, 183 U. S. 503, 22 Sup. Ct. 95, 46 L. Ed. 298; public cemeteries, see Edwards v. Cemetery Ass'n, 20 Conn. 406; Balch v. Commissioners, 103 Mass. 106; stock- yards, Cotting V. Stock Yards Co. (C. C.) 79 Fed. 684; Sexton v. Transit Co., 200 111. 244. 65 N. E. 638. 52G QUASI PUBLIC CORPORATIONS. (Ch. 20 ESSENTIALLY PRIVATE CORPORATIONS. 186. Quasi public corpora tious, being created for tbe primary purpose of private profit for their members, bave tbe same pow^ers, privileges, and constitutional protection as other private corporations in their organization, self-government, business management, and other or- dinary relations and operations. Within the limits of its charter powers, the quasi public corporation has continuous succession, may contract, hold property, raise stock and issue shares, declare dividends, and receive grants of privileges and immunities.^^ Its members, as distinct individuals, are exempt from personal liability for the corporate debts, and its charter is a contract with the state, protected by the federal Constitution.^® Like any other pri- vate corporation, it may engage in any business and exercise any powers within the scope of its charter. Its stockholders in annual meeting assembled choose its board of directors to have the general management of all its affairs, enact by-laws for internal government, and decide upon general lines of poHcy to be pursued by the corporation.-'' It is subject to dissolution for the same causes and by the same proceeding as any other private corporation, and its assets are thereupon applied first to the discharge of its liabilities, and the remainder is divided pro rata among the shareholders. It may not only sue for injuries sustained, but is liable to action of tort as well as contract, like any natural person.^* In short, a quasi public corporation has all the attributes and incidents of a private corporation, and enjoys in general the same measure of legal 25 Clark, Priv. Corp. § 6; THORPE v. RAILROAD CO., 27 Vt. 140, (52 Am. Dec. 025. 2 6 Clark, Priv. Corp. § 7; Western North Carolina R. Co. v. Rol- lins, 82 N. C. 523; Washington & B. Turnpike Co. v. Maryland, 3 Wall. (U. S.) 210, IS L. Ed. ISO. 2 7 Clark, Priv. Corp. § 182. 28 Nugent V. Railroad, SO Me. G2, 12 Atl. 797, 60 Am. St. Rep. 151. § 187) SUBJECT TO PUBLIC REGULATION AND CONTROL. 527 constitutional protection for itself and its members as ordinary private corporations.^" SUBJECT TO PUBLIC REGULATION AND CONTROL. 187. Quasi public corporations, because of tlieir public pow- ers, franchises, functions, and duties, are subject to public regulation and control in the exercise and per- formance thereof, to the end that public interests may be protected, and the public welfare promoted. Power and privilege imply duty and service. Duty and service require compulsion and supervision. Noblesse oblige applies in law as in morals ; "for unto whomsoever much is given, of him much shall be required." Power and duty are correlative. When, therefore, the state creates a corporation, and endows it with powers, franchises, and privileges, it ex- pects a return for the favors thus granted; and the return should be in proportion to the favor. If the favor is forgotten or ignored, and just return refused, the state should have power to compel performance of its just requirements. Attitude of Private Corporations. Formerly charters were grudgingly granted in America to private corporations. "Equal rights to all ; special privileges to none,'' was the popular political maxim, and courts de- clared that no charter ought ever to be granted to a private corporation except for reciprocal benefit.^" The theory still exists ; but practice, unhitched, has left it in the highway far behind. Private profit, rather than public welfare, is the pri- mary object of the modern private corporation.^^ The public 29 Louisville & N. R. Co. v. Cornmoinvpalth, 183 U. S. 503. 22 Sup. Ct. 95, 46 L. Ed. 29S; Tinsman v. Raiiroad Co., 26 N. J. Law, 14S, 69 Am. Dec. 565; THORPE v. RAILROAD CO., 27 Yt. 140, 62 Am. Dec. 625; Cotting v. Stock Yards Co., 183 U. S. 80, 22 Sup. Ct. 30, 40 L. Ed. 92; :\IINERS' DITCH CO. v. ZELLERBACII, 37 Cal. 543, 99 Am. Dec. 300. 3 Ante, § 4. 3i Mor. Priv. Corp. §§ 3, 4, 328 QUASI PUBLIC CORPORATIONS. (Cll. 20 benefit is purely incidental, and often imperceptiUc Such is the ordinary private corporation of these times; and naturally it avoids inspection, defends secrecy, and defies regulation.** Visitation of Quasi Public Corporations. Quasi public corporations, however, though private, occupy a different relation to the public. They perform public func- tions, such as that of common carrier, and therefore owe duties to the public. Most of them, if not all, are clothed with the power of eminent domain — a sovereign attribute — whereby they may compel other persons and corporations unwillingly to yield their rights and properties to them for lawful con- sideration. They may take lands, rights, and franchises of others for their corporate use. The state grants them this sovereign right and power, not because they are corporations, but because they serve the public;*' and the property thus taken is thereby appropriated not to corporate, but public, uses. Only this public use warrants the grant of this sover- eign power; and, the corporation having this public power, exercising a public function, charged with a public duty, owes to the public faithful performance upon reasonable terms, and at moderate rates.** To protect the public interests and pro- mote the public welfare, to insure the performance of public duties, the state retains compulsory power. The grant of franchises, powers, and privileges to such a private corpora- 3 2 Mr. Justice Brewer's Commencement Address, Yale Law School, 1904. 3 3 Olcott V. Supervisors, 16 Wall. (U. S.) 678, 21 L. Ed. 382; New York & H. R. Co. v. Kip, 46 N. Y. 546, 7 Am. Rep. 385; Eldridge v. Smith, 34 Vt. 484; Huelseukamp v. Railway Co., 37 Mo. 537, 90 Am. Dec. 399. 34 Peik V. Railway Co., 94 U. S. 164, 24 L. Ed. 97; Union Pac. R. Co. V. Hall, 91 U. S. 343, 23 L. Ed. 428; State v. Railway Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739; San Diego Water Co. v. San Diego, 118 Cal. 556, 50 Pac. 633, 38 L. R. A. 4G0, 62 Am. St. Rep. 261; Cotting v. Stockyards Co., 183 U. S. 00, 22 Sup. Ct. 30, 46 L. Ed. 92; SMYTH v. AMES, 169 U. S. 466, IS Sup. Ct. 418, 42 L. Ed. 819. f § 187) SUBJECT TO PUBLIC REGULATION AND CONTROL. 529 tion is always subject to the paramount power and duty of the state to protect the public interests and promote the pub- lic welfare.'" Though not identical with, it is similar to, the power of visitation, inherent in the founder of ecclesiastical and eleemosynary corporations at common law.^^ It has the same moral basis, is founded upon a valuable consideration, and rests securely upon the legal maxim, "Salus populi est suprema lex.'' All quasi public corporations, therefore, what- soever may be their private privileges and powers, and the protection vouchsafed to them by constitutional guaranty and prohibition, are subject to state visitation, inspection, and reg- ulation, because and to the extent that they are public serv- ants and agencies exercising public functions and powers and owing public duties and obHgations.'^ SB Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; MUNN v. ILLINOIS, 94 U. S. 113, 24 L. Ed. 77; SAN DIEGO LAND & TOWN CO. V NATIONAL CITY, 174 U. S. 754, 19 Sup. Ct. 804, 43 L. Ed. 1154, Inhabitants of Town of Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121; White's Creeli Turnpike Co. v. Davidson Co., 3 Tenn. Ch. 396; STONE v. MISSISSIPPI, 101 U. S. 814, 25 L. Ed. 1079; BOSTON BEER CO. v. MASSACHUSETTS, 97 U. S. 25. 24 L. Ed. 989; New Orleans Water Works Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, 29 L. Ed. 525; Rushville Gas Co. v. Rushville, 121 Ind. 20rt, 23 N. E. 72, 6 L. R. A. 315, 16 Am St. Rep. 388; Stein v. Supply Co. (C. C.) 34 Fed. 145. 36 1 Bl. Comm. 2S0; 2 Kyd, Corp. 174; 2 Kent, Comm. 240. 37 THORPE V. RAILROAD CO., 27 Vt. 140, 62 Am. Dec. 625; Galena & C. U. R. Co. v. Loomis, 13 111. 548, 56 Am. Dec. 471; O'Connor v. Pittsburgh, 18 Pa. 189; James River & Kanawha Co. V. Anderson, 12 Leigh (Va.) 28G; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Savannah & T. R. Co. v. Savannah, 45 Ga. 602; Grand Rapids, E. L. & P. Co. v. Electric Co. (C. C.) 33 Fed. 659. Ing.Cobp. — 34 530 QUASI PUBLIC CORPORATIONS. (Ch. 20 LEGISLATIVE CONTROL. 188. The regulation and control of quasi public corporations may be eflBected directly or indirectly by the legislative or judicial po^vers of the government in the appropri- ate exercise of their respective functions. The control of quasi public corporations by the state can- not be arbitrary or capricious, but, under well-recognized rules, must be lawful and reasonable.^* The. right of the state thus to interfere in the business of a private corporation is often referred to the police power. This power, though in- definable and of doubtful limitation, is inherent in every state, and may not be abridged, bartered, donated, or in any other way aliened by it.^® It is a governmental power, to be exer- cised always in the first instance by the legislature. This branch of the government decides upon the public necessity for regulation, and, having made its determination, enacts legislation appropriate to the end in view.*" Generally, the legislature exercises this power itself in the enactment of 88 Chester v. Traction Co., 5 Pa. Dist. R. 609; New Memphis Gas & Light Co. V. Memphis (C. C.) 72 Fed. 'J.12; New Yoric & N. E. R. Co. V. Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269; Reagan V. Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Cov- ington & L. Turnpilve Road Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41 L. Ed. 560; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819; Spring Valley Waterworks v. San Francisco (C. C.) 124 Fed. 598; State v. Addington, 77 Mo. 110. 3 9 Cooley, Const. Lim. (6th Ed.) 704; State v. Noyes, 47 Me. 189; Town of Lake View v. Cemetery Co., 70 111. 191, 22 Am. Rep. 71; THORPE V. RAILROAD CO., 27 Vt. 140, 62 Am. Dec. 625; Lake Shore & M. S. Ry. Co. T. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858; BOSTON BEER CO. v. MASSACHUSETTS, 97 U. S. 25, 24 L. Ed. 989 ; Boyd v. Alabama, 94 U. S. 645, 24 L. Ed. 302 ; STONE V. MISSISSIPPI, 101 U. S. 814, 25 L. Ed. 1079. 40 MUNN v. ILLINOIS, 94 U. S. 113, 24 L. Ed. 77; Peik v. Rail- road Co., 94 U. S. 178, 24 L. Ed. 97; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 15 Sup. Ct. 484, 39 L. Ed. 567; Chicago & G. T. Ry. Co. V. Wellman, 143 U. S. 339, 12 Sup. Ct. 400, 36 L. Bd. 176. f § 188) LEGISLATIVE CONTROL. 531 laws enjoining helpful and prohibiting harmful measures for the public good. But, as we have heretofore seen/^ the police power is usually delegated in some measure to municipal cor- porations. These bodies thus authorized may enact ordinances controlling the operation of quasi public corporations within their respective limits ; and thus the legislature, either directly or indirectly, by general or local regulation, may control and regulate the operations of quasi public corporations in the limits of the state and the respective municipalities thereof. In this way quasi public corporations may be compelled by laws passed after their organization to so conduct their busi- ness as not unnecessarily to expose the public to harm or danger,*^ or to impose unreasonable burdens upon the public in the charges made for service to them.*^ The Judicial Function. The courts also may render important service in the matter of state control of quasi public corporations. If the regula- tion requires inspection of the internal affairs of the corpora- 41 Ante, § 116. See, also, Pittsburg, C. & St. L. R. Co. v. Hood, 94 Fed. 618, 36 C. C. A. i'l'i; Cape May, D. B. & S. P. R. Co. v. Cape May, 59 N. J. Law, 404, 36 Atl. 678, 36 L. R. A. 657. 4 2 Freeport Water Co. v. Freeport, 186 111. 179, 57 N. E. 862, 180 U. S. 587, 21 Sup. Ct. 493, 45 L. Ed. 679; New Albany & S. R. Co. V. Tllton, 12 Ind. 3, 74 Am. Dec. 195; Pennsylvania R. Co. v. Rib- let, 66 Pa. 164, 5 Am. Rep. 360; Lyman v. Railroad Corp., 4 Cush. (Mass.) 288; Rodemaclier v. Railroad Co., 41 Iowa, 297, 20 Am. Rep. 592: Horn v. Railroad Co., 38 Wis. 463; Galena & C. U. R. Co. V. Loomis, 13 111. 548, 56 Am. Dec. 471; Railroad Com'rs v. Railroad Co., 63 Me. 269, 18 Am. Rep. 208; Detroit, Ft. W\ & B. I. Ry. V. Osborn, 189 U. S. 383. 23 Sup. Ct. 540, 47 L. Ed. 800. ■43 People V. Railway Co., 178 111. 594, 53 N. E. 349. 49 L. R. A. 650; CITY OF KNOXVILLE v. WATER CO., 107 Tenu. 647, 64 S. W. 1075, 61 L. R. A. 888; Id., 189 U. S. 434, 23 Sup. Ct. 531, 47 L. Ed. 887; Georgia R. & Banking Co. v. Smith, 128 U. S. 177, 9 Sup. Ct. 47, 32 L. Ed. 377; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, 24 L. Ed. 94; MUNN v. ILLINOIS, 94 U. S. 113, 24 L. Ed. 77; Cotting V. Yards Co., l!-3 U. S. 90, 22 Sup. Ct. 30, 46 L. Ed. 92; State v. Light Co., 34 Ohio St. 572, 32 Am. Rep. 3C0. 532 QUASI PUBLIC CORPORATIONS. (Ch. 20 tion, this is usually effected through the process of the courts, which are the modern agencies employed by the state to ex- ercise its power of visitation ; ** and, if sufificient ground be dis- closed therefor, if the corporation is acting unlawfully, the court may pronounce judgment of dissolution against it as against any other private corporation.*^ But the courts do not possess the power of determining when or how such corpora- tions shall be regulated and controlled. This is an exclusive function of the legislature; and it must determine not only when the public necessity exists for regulation, but the method to be employed, and the extent of the regulation.*' When the law of regulation has been duly enacted, then the court may be called upon to exercise its functions. It may not only employ its process, legal, equitable, and criminal, to enforce the law, but it may also, when the validity of the law is chal- lenged, determine whether the regulation is reasonable. If it is made to appear plainly to the court that the regulating stat- ute is unreasonable, the court may declare it void.*'^ 44 Angell & A. Priv. Corp. § 684; 2 Kent, Comm. 300; Wisconsin Keeley Institute Co. v. Milwaukee, 95 Wis. 153. 70 N. W. 68, 36 L. R. A. 55. 60 Am. St. Kep. 105; Swift V. Ricliardson, 7 Houst. (Del.) 338, 32 Atl. 143, 40 Am. St. Rep. 127; Commonwealth v. Iron Co., 105 Pa. Ill, 51 Am. Rep. 184; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 56 N. E. 1033, 48 L. R. A. 732, 78 Am. St Rep. 707. 4 5 Clark, Priv. Corp. pp. 237-239. 48 THORPE V. RAILROAD CO., 27 Vt. 141, 62 Am. Dec. 625; Bank of Republic v. Hamilton Co., 21 111. 53 ; Pearsall v. Railway Co., 161 U. S. 646, 16 Sup. Ct. 705, 40 L. Ed. 838; Commonwealth v. Rail- road Co., 103 Mass. 2.54, 4 Am. Rep. 555; Blake v. Railroad Co., 19 Minn. 418 (Gil. 362), 18 Am. Rep. 345; State v. Johnson, 61 Kan. 80S, 60 Pac. 1008, 49 L. R. A. 662. 47 SAN DIEGO L^^^D & TOWN CO. v. NATIONAL CITY, 174 U. S. 754, 19 Sup. Ct. 804, 43 L. Ed. 1154; Cotting v. Yards Co., 183 U. S. 90, 22 Sup. Ct. 30, 46 L. Ed. 92; CHICAGO, M. & ST. P. R. CO. V. MINNESOTA. 134 U. S. 418, 10 Sup. Ct. 402, 33 L. Ed. 970: Spring Valley Waterworks v. San Francisco (C. C.) 124 Fed. 598; Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201; Steenerson v. Railway Co., 69 Minn. 353, 72 N. W. 713. The courts, when the question is properly presented, may deter- f § 189) OBJECTS AND LIMITS OF REGULATION. 533 OBJECTS AND LIMITS OF REGULATION. 189. The objects of regulation of quasi public corporations are tbe protection of tbe public safety in life and property and the prevention of public extortion and imposition; and lavrs and ordinances obviously tending to effect such results are valid. But those statutes are invalid in \irhich public regulation is a manifest pretext for meddlesome interference -with corporate business, or xv^hich result in the confiscation of corpo- rate property. Statutes and ordinances have been upheld which require railway companies to fence their roads,** and to bridge high- way crossings;*** and also those requiring a conductor upon every street car ; ^^ also those which fix the prices to be char- ged for hauling freight and passengers,^^ and for supplying water and gas to consumers. ^^ mine whether or not the rates which have been established by statute or municipal ordinance are reasonable, but they have no power to fix such rates. People's Gaslight & Coke Co. v. Hale, 94 111. App. 406. The reasonableness of the rates fixed by law as maximum rates for gas companies is a mutter for judicial determination. Capital City Gas Co. v. Des Moines (C. C.) 72 Fed. 818. 48 Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct, 110. 26 L. Ed. 463; THORPE v. RAILROAD CO., 27 Vt. 141, 62 Am. Dec. 625. So an ordinance requiring electric street cars to come to a full stop before crossing intersecting streets was held valid. Cape May & D. B. & S. P. R. Co. V. Cape May, 59 N. J. Law, 404, 36 Atl. 678, 36 L. R. A. 657. 49 New York & N. E. R. Co.'s Appeal from Railroad Com'rs, 62 Conn. 527, 26 Atl. 122; New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 14 Sup. Ct 437, 38 L. Ed. 269. 50 State V. Trenton, 53 N. J. Law, 132. 20 Atl. 1076, 11 L. R. A. 410 ; SOUTH COVINGTON & C. ST. RY. CO. v. BERRY, 93 Ky. 43, 18 S. W. 1026, 15 L. R. A. 604, 40 Am. St. Rep. 161. 51 Georgia R. & Banking Co. v. Smith, 128 U. S. 177, 9 Sup. Ct. 5 2 See note 52 on following page. 534 QUASI PUBLIC COUPOEATIONS. (Cll. 20 Police Poiver. But the courts have also held that an ordinance requiring gates to be erected or guards stationed at every street cross- ing in a town is invalid ; ^^ and that a statute fixing a maximum price for freight or passengers at less than the actual cost of carriage, is, in effect, a statute of confiscation, and therefore unconstitutional and void.^* Instances of the regulation of corporate conduct by legislation in the strict exercise of the police power for the preservation of public health and com- fort and the protection of private property are too numerous for specification and consideration here. Many of them ap- ply to strictly private corporations and to individuals as well 47, 32 L. Ed. 377; Peik v. Railroad Co., 94 U. S. 178, 24 L. Ed. 97: People V. Railroad Co., 178 111. 594. 53 N. E. 349, 49 L. R. A. 050; City of Indianapolis v. Navin, 151 lud. 139, 47 N, E. 525, 41 L. R. A. 337. 52 CITY OF KNOXVILLE v. WATER CO., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; Id., 189 U. S. 434, 23 Sup. Ct. 531, 47 L. Ed. 887; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173; State v. Light Co., 34 Ohio St. 572, 32 Am. Rep. 390. It is the province of a legislative body to fix the rates to be char- ged for service rendered by a quasi public corporation, where its business is impressed with a public interest. People's Gaslight & Coke Co. V. Hale, 94 111. App. 406; Baily v. Gas-Fuel Co., 193 Pa. 175, 44 Atl. 251. But a city council has no power to compel a gas company, with- out its assent to the ordinance, to furnish gas in a manner and at rates entirely at the option of the consumer. Logan Natural Gas & Fuel Co. V. Chillicothe, G5 Ohio St. 186, 62 N. E. 122. 53 Toledo, W. & W. Ry. Co. v. Jacksonville, 67 111, 37, 16 Am. Rep. 611. 54 Reagan v. Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Smyth v. Ames, 1U9 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819; New Memphis Gas & Light Co. v. Memphis (C. C.) 72 Fed. 952; Indianapolis Gas Co. v. Indianapolis (C. C.) 82 Fed. 245. See, also, as to confiscation of the property of a water company by regulation of rates, San Diego Water Co. v. San Diego, 118 Cal. 556, 50 Pac. 633, 38 L. R. A. 460, 62 Am, St. Rep. 261. § 189) OBJECTS AND LIMITS OF REGULATION. 535 as to quasi public corporations.^^ Some of the class last mentioned will be referred to under appropriate heads here- after. But the regulation of quasi public corporations in re- spect of their rates and charges, while sometimes referred to as an exercise of the police power, can only be so regarded when that phrase is used in its broadest and most compre- hensive signification, under which the state may regulate all persons and property for the public welfare.^* Sovereign Pozver. But limitation of the rates and charges of quasi public cor- porations by legislation, though sometimes referred to by the courts as an exercise of the police power, is more properly referable to the sovereign power of the state to regulate and control all public affairs. The state may not say to any citi- zen with whom he shall deal, or at what price he shall sell ; for this would interfere with his inherent libert\- of action.^- So, too, of a strictly private corporation, which in tiiis particu- lar enjoys the same freedom of trade."' But the quasi public corporation has assumed public functions and duties such as the state itself, if it chose, might exercise and perform, and therefore has voluntarily subjected itself to public regulation.^* ^ 55 West River Bridge Co. v. Dix, 6 IIow. (U. S.» 507, 12 L. Ed. 5*35; Ward v. Farwell, 97 111. 593; BOSTON BEER CO. v. MAS- SACHUSETTS, 97 U. S. 26, 24 L. Ed. 989; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. 50 Cooley, Const. Lim. (6tli Ed.) 705, 706. But wliere the condi- tions, regulations, and restrictions imposed are such as to evince a desire to oppress and control, and perhaps defeat, the company's existence, they cannot be supported as a lawful exercise of the police power. City of Richmond v. Telegraph Co., 85' Fed. 19, 28 C. C. A. 6.59. 57 Baker v. Portland, 5 Sawy. (U. S.) 506, Fed. Cas. No. 777; Ham- ilton v. County Ct., 15 Mo. 13; People v. Morris, 13 Wend. iN. Y.) 32=^; Cooley, Const. Lim. (6th Ed.) 744, 745. 58 Joy V. Plank Road Co., 11 Mich. 164; Treadwell v. Mauufac- turing Co., 7 Gray (Mass.) 393, 66 Am. Dec. 490. 59 Chicago G. W. Ry. Co. v. People, 79 HI. App. 529; People v. 536 QUASI PUBLIC CORI'ORATIONS. (Cll. 20 It must serve every one applying, unless excused therefrom by the law,'" and at such reasonable rates as the state may prescribe.^^ Reasonable Regulation. The justices of the Supreme Court of the United States, in the course of their frequent consideration of the regulation of rates of quasi public corporations, have given utterance to the following rules for determining what is reasonable regu- lation : "What the company is entitled to ask is a fair return upon the value of that which it employs for public conven- Budd, 117 N. Y. 1, 22 N. E. G70, 5 L. R. A. 559, 15 Am. St. Rep. 460; Mnun v. People, 09 111. SO; MUNN v. ILLINOIS, 94 U. S. 113. 24 L. Ed. 77. 60 COY V. GAS CO., 146 Ind. 655, 46 N. E. 17, 36 L. R. A. 535; CRUMLEY Y. WATER CO., 99 Tenn. 420, 41 S. W. 1058; American Water Works Co. v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447, 50 Am. St. Rep. 610; State v. Water Co., 18 Mont. 199, 44 Pac. 966, 32 L. R. A. 697, 56 Am. St. Rep. 574. Where persons or corporations carry on a business which is pub- lic in its nature, and on which is impressed a public interest, they must serve all who apply on the same terms and at reasonable rates. People's Gaslight & Coke Co. v. Hale, 94 111. App. 400; Griffin V. Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240; Owens- boro Gaslight Co. v. Hildebrand, 19 Ky, Law Rep. 983, 42 S. W. 351. 61 Cincinnati, H. & D. R. Co. v. Bowling Green, 57 Ohio St. 336, 49 N. E. 121, 41 L. R. A. 422; People's Gaslight & Coke Co. v. Hale, supra; Cleveland City R. Co. v. Cleveland (C. C.) 94 Fed. 385; Don- uell V. State, 48 Miss. 661, 12 Am. Rep. 375; Dow v. Beidelman, 125 U. S. 680, 8 Sup. Ct. 1028, 31 L. Ed. 841; Railroad Commission Cases, 116 U. S. 307, 6 Sup. Ct. 334, 29 L. Ed. 636; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, 24 L, Ed. 94. A private corporation engaged in the business of operating a tele- phone plant, being a common carrier of news and intelligence, is charged Avith the public duty to furnish for a reasonable compen- sation to any citizen a telephone and telephonic service, and to charge each patron for the service rendered the same price it char- ges every other patron for the same service under similar condi- tions. Nebraska Tel. Co. v. State, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113. § ISO) OBJECTS AND LIMITS OF REGULATION. 537 ience. On the other hand, what the pubHc is entitled to de- mand is that no more be exacted from it for the use of a pub- lic highway than the services rendered by it are reasonably worth." «2 "It no longer is open to dispute that, under the Consti- tution, what the company is entitled to demand in order that it may have just compensation is a fair return upon the rea- sonable value of the property at the time it is being used for the public." ®* "The right of judicial interference exists only when the schedule of rates established will fail to secure to the owner of the property some compensation or income from his invest- ment. As to the amount of such compensation, if some com- pensation or reward is in fact secured, the legislature is the sole judge. The question is then one alone of policy. Wheth- er, by reducing the compensation fo a minimum, railroad en- terprises shall be discouraged, or, by enlarging, encouraged, is a matter for legislative, and not judicial, determination." ** "The theory, apparently, upon which this suit is brought, is that the parties have an appeal from the legislature to the courts, and that the latter are given an immediate and gen- eral supervision of the constitutionality of the acts of the former. Such is not the case. Whenever, in pursuance of an » honest and actual antagonistic assertion of rights by one in- dividual against another, there is presented a question in- volving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitu- tional or not ; but such an exercise of power is the ultimate and 62 Harlan, J., in S:MYTH v. AMES, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819. 63 Holmes, J., in SAN DIEGO LAND & TOWN CO. v. NATIONAL CITY. 174 U. S. 739, 19 Sup. Ct. 804, 43 L. Ed. 1154. 6 4 Brewer, .7., in Chicago & N. W. R, Co. v. Dey (C. C.) 35 Fed. 878, 879, I L. R. A. 744. 538 QUASI PUBLIC CORPORATIONS. (Cll. 2U extreme function of the courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earn- est, and vital controversy between individuals." '" 6B Brewer, J., in Chicago & G. T. Ry. Co. r. Wellman, 143 U. S. 339, 12 Sup. Ct. 400, 36 L. Ed. 176. § lyO) RAILROADS. 539 CHAPTER XXI. RAILROADS. 190. Public Qualities. 191. Conmion Carrier. 192. Eminent Domain. 193. Delegated Power. 194. Abuse of Power. 195. Public Control. 196. Municipal Regulation. 197. Street Railways. 198. Judicial Power. PUBLIC QUALITIES. 190. A railroad company is a quasi public corporation, in that (a) The railroad is a public highway; (b) The company performs the functions and ovres to the public the duties of a common carrier; (c) It exercises the sovereign -poxxreT of eminent domain. There are in the United States many short lines of railroad constructed and operated solely for the convenience and benefit of the owner or lessees. Such railroads, like other private roads, have no public relations, duties, or powers, but are under the exclusive control and regulation of their owners and man- agers, nnd are not considered in this book. They are as un- like the ordinary railroad as a purely private road is unlike the public highway. The word "railroad" herein, unless qualified, is intended to embrace all public railroads, whether commercial, interurban, elevated, or street railways. Public Highway. The American notion that railroads are private institutions, and no more subject to public regulation and control than other private corporations, is of recent birth and growth. At their 1 540 RAILROADS. (Cll, 21 origin railroads were regarded only as public highways.^ They were intended to be used like turnpikes by any one who could provide himself with the requisite vehicle and motive power, and would pay the lawful toll, and were so used in England for many years.^ The original charters of incorporation were formulated with reference to this purpose and mode of opera- tion, and often contained provisions that other companies or persons should have the right to connect with the railroad pro- vided for in the charter, and to enter upon it with necessary cars.^ The company owned and controlled the right of way and railroad only, while each person using it furnished his own rolling stock ; and the same general practice and mode of op- eration prevailed as on canals.* These early forms of charter were naturally followed in the later charters, and under fa- miliar rules of law the construction which had been given to particular words and phrases under the old charters, being ap- plied to the later ones, caused no little surprise to those cher- ishing the modern idea of private ownership and control." Not Necessarily a Transportation Company. An act of Congress granting lands to aid in the construction of a railroad provided that "said railroad shall be and remain a public highway for the use of the government of the United States free from all tolls or other charge for the transportation of any property or troops of the United States." The War and Treasury Departments, under this provision, naturally claimed free transportation, and resisted a claim of the rail- 1 OLCOTT V. SUPERVISORS, 16 Wall. (U. S.) 678, 21 L. Ed. 382; Commonwealth v. Railroad Co., 12 Gray (Mass.) 180. 2 King V. Railway Co., 2 Barn. & Aid. 648 ; Pierce, R. R. p. 2 ; Miller, J., in Lake Shore & M. R. Co. v. United States, 93 U. S. 458, 23 L. Ed. 965. 3 Atchison, T. & S. F. R. Co. v. Railroad Co., 110 U. S. 607, 4 Sup. Ct. 185, 28 L. Ed. 291. 4 Union Trust Co. v. Railroad Co., 117 U. S. 455, 6 Sup. Ct. 809, 29 L. Ed. 963; Trunick v. Smith, 63 Pa. 18. 5 Peik V. Railroad Co., 94 U. S. 164, 24 L. Ed. 97 ; 1 Wood, R. R. p. 3. § 190) PUBLIC QUALITIES. 541 road company for transporting troops and property of the United States over the railroad. The United States Supreme Court decided that, while this clause gave to the United States the free use of the railroad — i. e. the roadbed and rails — it did not entitle the government to the free use of the rolling stock and other property of the railroad company, and the free serv- ices of its employes, and therefore sustained the claim of the railroad company against the United States for compensation for carrying its troops and property.* The court in this case declares arguendo that a railroad company is not necessarily a transportation company, and only possesses power to act as such when it is granted in the charter "expressly or by clear implication." ^ Lacking this power, however, a railroad com- pany would be equally a quasi public corporation by reason of the railroad being a public highway, or of its having the power of eminent domain ; either of which is sufficient to give it this character and subject it to public regulation. If, therefore, a railroad company possesses any of these faculties, viz., the power of eminent domain, functions of a common carrier, or the ownership or management of a public highway, it is a quasi public corporation.* Lesser Railroads. 4 The rules and considerations which make a commercial or through railroad a public highway are obviously more potent and applicable on other kinds of railroads. A street railway is physically as well as logically a part of the highway. "In- terurban" describes that class of railroads used to connect neighboring cities and towns, which, though not necessarily, yet commonly, i:se the streets and highways for their roadbed. Elevated railroads, being those not laid upon the earth's sur- face, but built upon viaducts, enabling them to run at some Lake Shore & M. R. Co. v. Uuited States, 93 U. S. 442, 23 L. Ed. •JGo. - 9;i U. S. 451, 23 L. Ed. 9G5. s Baldw. Am. R. R. Law, 90; 1 Beach, Pub. Corp. § 2; Maginnis v. Ice Co., 112 Wis. 385, 88 N. W. 300. 542 RAILROADS. (Ch. 21 distance above the ordinary grade of travel, likewise generally, if not exclusively, occupy the streets and highways. All these railroads being impediments and obstructions to the common use of the highway by private persons, and increasing the ordi- nary dangers of travel, are peculiarly public highways under quasi public corporations,® and necessarily subject to public regulation and control for the protection of persons traveling and property transported along: the same highway.^** COMMON CARRIER. 191. A railroad company, being chartered for tlie purpose of performing the functions of a common carrier, thereby undertakes to discharge the duties of a common car- rier for the public, and thus also becomes a quasi public corporation, and subject to regulation as such. Corporations, whether public or private, may only perform lawful acts within the scope of their charter. A cessation of .user of the corporate powers renders the corporation lia- ble to dissolution.^^ But the quasi public corporation is lia- ble not only to dissolution, but also to regulation while in being, so as to insure a performance of its duties to the pub- lic.^^ Being a private corporation, its charter is a contract witli the state, and must be so respected by the powers of the state; ^^ but there is also a reciprocal obligation on the part of 9 General Electric Ry. Co. v. Railroad Co., 184 111. 588. 56 N. F 063; Halsey v. Railway Co., 47 N. J. Eq. .380. 20 Atl. 859. 10 Wisconsin, M. & P. R. Co. v. Jacobson. 179 U. S. 287, 21 Sup Gt. 115, 45 L. Ed. 194; Cleveland, C, C. & St. L. R. Co. v. Hamilton. 200 111. 633, 66 N. E. 389. 11 Clark, Corp. p. 237. 12 Missouri Pac. R. Co. v. Humes, 115 U. S. 522, 6 Sup. Ct. IIU. 29 L. Ed. 463; State of California v. Railroad Co.. 127 U. S. 40. 8 Sup. Ct. 1073, 32 L. Ed. 150; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 296, 297, 19 Sup. Ct. 465. 43 L. Ed. 702. 13 Hamilton v. Keith, 5 Bush (Ky.) 4.58: DARTMOUTH COL- LEGE V. WOODWARD, 4 Wheat. (U. S.) 518, 4 L. Ed. 62;»; Dela- § 191) COMMON CARRIER. 543 the company to perform its functions and discharge its duties to the pubHc which it promises to serve ; and this contract the state may enforce against the corporation for the pubhc ben- efit.^* Public Duties. As a common carrier of goods and passengers the railway company is bound to receive and transport goods and persons indifferently for all who make lawful application for such car- riage.^* As the common carrier of goods a railroad company is an insurer, and is bound to deliver them at the point of destina- tion, unless prevented by the act of God, the public enemy, or of the owner himself, or by reason of the intrinsic character of the goods themselves.^* The failure for any other cause to ware Railroad Tax Case, 18 Wall. (U. S.) 206, 21 L. Ed. 888; THORPE V. RAILROAD CO;, 27 Vt. 141, G2 Am. Dec. 625. 14 Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428; State r. Railway Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739; Chicago & A. R. Co. v. People, 67 111. 11, 16 Am. Rep. 599; Inhabitants of Worcester v. Railroad Corp., 4 Mete. (Mass.) 504; Newburyport Turnpike Corp. v. Railroad Co., 23 Pick. (Mass.) 326; OLCOTT V. SUPERVISORS, 16 Wall. (U. S.) 678, 21 L. Ed. .382 ; State /. Railroad Co., 29 Conn. .538; People v. Railroad Co., 24 N. Y. 261. 82 Am. Dec. 295. 10 Verner v. Sweitzer, 82 Pa. 208; Samms v. Stewart, 20 Ohio, 69, 65 Am. Dec. 445; Nashville & C. R. Co. v. David, 6 Heisk. (Tenn.) 261, 19 Am. Rep. .594; Houston & T, C. Ry. Co. v. Harn, 44 Tex. 628; East Omaha St. R. Co. v. Godola, .50 Neb. 906, 70 N. W. 491 ; Inman V. Railroad Co., 14 Tex. Civ. App. 39, 37 S. W. .37; Mobile & G. R. Co. V. Williams, 54 Ala. 108; Ohio & M. Ry. Co. v. Yolie. 51 Ind. 181, 19 Am. Rep. 727; Finn v. Railroad Corp., 112 Mass. 524, 17 Am. Rep. 128. But an exception is made in case of drunken people. Freedon v. Railroad Co., 24 App. Div. 306. 48 N. Y. Supp. .'84. 18 Reed V. Steamboat Co., 1 Marv. (Del.) 193, 40 Atl. Oo.j; Boehl V. Railway Co.. 44 Minn. 192, 46 N. W. .333; Turney v. Wilson. 7 Yerg. (Tenn.) .340; Boston & A. R. Co. v. Shanly, 107 Mass. 568; Michaels v. Railroad Co.. 30 N. Y. 564, SO Am. Dec. 415; Van Winkle V. Railroad Co., 38 Ga. 32; Day v. lUdley, 16 Vt. 48, 42 Am. Dec. 489. 544 RAILKUADS. (Ch. 2i make such delivery renders the carrier absolutely liable.^'' As the carrier of passengers the corporation, though not an insurer, is held to the highest degree of diligence and care.^* The carriage of live stock by a railv^ay company was not a pub- lic duty at common law, but the subject of private contract.^' Hundreds of thousands of persons and millions of dollars worth of property are carried daily by the railroads of the United States; and their protection is one of the chief objects of solicitude by both the state and federal governments. The manifestation of this is seen in the interstate commerce act,'^" and the so-called Sherman Act ^^ of the federal Congress, and in the numerous statutes enacted by the several states, requir- ing alarm signals, air brakes, stopping at railroad crossings and drawbridges, abolishing of grade crossings at highways, the building of cattle guards, fences, and other provisions too IT Little Rock, M. R. & T. Ry. Co. v. Talbot, 47 Ark. 97, 14 S. W. 471; Lewis v. Smith, 107 Mass. 334; Mon-ison v. Davis, 20 Pa. 171, 57 Am. Dec. G95. 18 Wasbiugton & G. R. Co. v. Varnell, 98 U. S. 479, 25 L. Ed. 233; Chicago & A. R. Co. v. Murphy, 198 111. 462, 64 N. E. 1011; Stoddard V. Railroad Co., 181 Mass. 422, 63 N. E. 927; Stierle v. Railway Co., 156 N. Y. 684, 50 N. E. 834. 19 Michigan S. & N. I. R. Co. v. McDonough, 21 Mich. 165, 4 Am. Rep. 466; Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239; Hinkle v. Railway Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; Chicago. B. & Q. R. Co. V. Williams, 61 Neb. 608, 85 N. W. 832, 55 L. R. A. 289 ; Clarke v. Railroad Co., 14 N. Y. 570, 67 Am. Dec. 205. But see contra, 3 Woods, R. R. § 452b, note 1. This apparent conflict may be reconciled by noting that (a) a common carrier at common law is not bound to receive and carry all kinds of chat- tels, but goods only (3 Woods, R. R. § 424) ; and (b) at common law only the "act of God and the king's enemies'' excused failure to deliver. American statutes and decisions have somewhat modified both these rules. Note 16, supra, and infra, 104. 2 Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 31.54]. 2 1 Act Cong. .July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]. § 192) EMINENT DOMAIN. 545 numerous to mention. Suffice it here to say that they are all legislative instances of the exercise of the sovereign pov^^er of the state to protect the public against extortion and prevent injury to and destruction of life and property. '^^ EMINENT DOMAIN, 192. Railroad companies are permitted to exercise the sov- ereign poTver of eminent domain solely upon the ground that they perform public functions for the public Avelfare. Eminent domain is defined to be "the right which the people or government retain over the estates of individuals to resume the same for public use." ^^ Most, if not all, of the state con- stitutions expressly forbid the exercise of this power for any other than the public use, and then only upon just compensa- tion being made. This power has always been exercised by the people or sovereign for public highways, which are abso- lutely necessary for freedom and facility of locomotion and transportation.^* Railroads being from the first regarded as public highways, the various states have from the inception of railway construction conferred upon railroad corporations the right to come into the courts, and have condemned for their use so much of the private estates of citizens as was requisite to enable them to construct their roads and appurtenances nec- essary to the efficient performance of their functions as public servants, upon paying to the owner a just compensation there- 22 3 Woods, R. R. pp. 2061. 2072-2080; Evans v. Railway Co., i:« Ala. 482, .32 South. 138; Herrell v. Railroad Co., 114 Wis. (JOo, 90 N. W. 1071. 23 1 Bouv. Law Diet, in verb; Lewis, Em. Dom. c. 1. 24 Elliott, Roads & St. § 146; Redf. Rys. § 03; Bankhead v. Brown, 25 Iowa, 540; Wild v. Doig, 43 Ind. 455. 13 Am. Rep. 399; State ex rel. Cape Girardeau v. Engelmann, 106 Mo. 028, 17 S. W. 759; AVEST RIVER BRIDGE CO. v. DIX, 6 How. (U. S.) 507, 12 L. Ed. 535; Arnold v. Bridge Co., 1 Duv. (Ky.) 372. Tng.Corp. — 35 546 RAILROADS. (Ch. 21 for.'*' Legislatures have occasionally passed acts conferring this right upon private corporations or individuals, as for the erection of mills and factories, or the opening of private ways ; but upon challenge the courts have uniformly declared such acts to be void, because the property thus authorized to be taken was to be applied not to public, but to private, use.^® With equal uniformity, also, have the courts decided, whenever the right of railroad companies to exercise this power has been called in question, that acts clothing railroad corporations with this power were valid, because railroads are a public necessity in modern civilization, being improved forms of public high- ways.^'' All railroad companies are therefore quasi public cor- 2 5 Secombe v. Railroad Co., 23 AYall. (U. S.) 108, 23 L. Ed. 67; Southern Pac. R. Co. v. Wilson, 49 Cal. 396; Oregonian R. Co. v Hill, 9 Or. 377; NEW YORK & H. R. CO. v. KIP, 46 N. Y. 546. 7 Am. Rep. 385; Freedle v. Railroad Co.. 49 N. C. 89; Hamilton v. Railroad Co., 1 Md. Ch. 107; In re Mt. Washington Road Co.. 35 N. H. 134; EAST TENNESSEE & V. R. CO. V. LOVE, 3 Head (Tenn.) 63. 26 2 Kent, Comm. (5th Ed.) 340, note c; Embury v. Conner, 3 N. Y. 511, 53 Am. Dee. 325; Scudder v. Falls Co., 1 N. J. Eq. G94. 23 Am. Dee. 756; Beekman v. Railroad Co., 3 Paige (N. Y.) 45, 22 Am. Dec. 679 ; Turner v. Althaus, 6 Neb. 54 ; Bradley v. Railroad Co.. 21 Conn. 294; Mills, Em. Dom. § 23; Maghmis v. Ice Co., 112 Wis. 385, 88 N. W. 300; Garbutt Lumber Co. v. Railway Co., Ill Ga. 714, 36 S. E. 942; IN RE NIAGARA FALLS & W. RY. CO., 108 N. Y. 375, 15 N. E. 429; Pittsburg, W. & K. R. Co. v. Iron Works, 31 W. Va. 710, 8 S. E. 453, 2 L. R. A. 680; In re Rhode Island Suburban Ry. Co., 22 R. I. 457, 48 Atl. 591, 52 L. R. A. 879. 27 People V. Railroad Co., 58 N. Y. 1.52; Wisconsin, M. & P. R. Co. V. Jacobson. 179 U. S. 2S7, 21 Sup. Ct. 115, 45 L. Ed. 194; Lehmicke v. Railroad Co., 19 Minn. 464 (Gil. 400); Toledo & W. Ry. Co. y. Daniels, 16 Ohio St. 390; Philadelphia, W. & B. R. Co. v. Williams, 54 Pa. 103; Charleston & S. R. Co. v. Blake, 12 Rich. Law (S. C.) 634; Nichols v. Railroad Co., 43 Me. 356. "A railroad is a piiblic highway established primarily for the convenience of the people, and to subsei've public ends, and is subject to governmental control and regulation. Por these reasons a corporation owning it may, under legislative sanction, take private property for a right of way upon making just compensation to the owner." Cherokee § 193) DELEGATED POWER. 64T porations, and hold the property so taken by eminent domain, together with the property obtained by purchase or grant, for the pubHc use. This doctrine covers all the property of the railway company necessary for the performance of its public functions.^* DELEGATED POWDER. 193. Railroad companies exercise tliis power of eminent do- main only as special agents of tlie state for tlie par- ticular purpose for \(rliicli they are chartered, to the extent authorized, and in the mode directed or permit- ted by their principal. The state alone possesses the power of eminent domain as an inherent right. Corporations may use it only as a delegated power.** In its exercise they act as the special agents of the state, and must therefore always be able to show their appoint- ment and authority.^" Such a tremendous power can only be exercised under legal limitation and in accordance with fixed rules ; and the doctrine of the courts with regard to this power has avowedly been that of strict construction.^^ Railroad corn- Nation V. Railway Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295. 28 East Alabama Ry. Co. v. Doe, 114 U. S. 340, 5 Sup. Ct. 869, 29 L. Ed. 136 ; New Orleans, S. F. & L. R. Co. v. Delamore, 114 U. S. 501, 5 Sup. Ct. 1009, 29 L. Ed. 244; Western Pennsylvania R. Co. v. Johnston, 59 Pa. 290; State v. Railroad Co., 29 Conn. 538; People V. Railroad Co., 24 N. Y. 261, 82 Am. Dec. 295. 2 9 Florida Cent. & P. R. Co. v. Bell, 43 Fla. 359, 31 South. 259; Ash V. Cummings, 50 N. H. 591; Kramer v. Cleveland & P. R. Co., 5 Ohio St. 140; Buffalo & N. Y. C. R. Co. v. Brainerd, 9 N. Y. 100; Pittsburgh & L. E. R. Co. v. Bruce, 102 Pa. 23; Vermont Cent. R. Co. V. Baxter, 22 Vt. 3G5 ; Alexandria & F. Ry. Co. v. Railroad Co., 75 Va. 780, 40 Am. Rep. 743; North Missouri R. Co. v. Gott, 25 Mo. 540. 30 Atlantic & O. R. Co. v. Sullivant, 5 Ohio St. 27C; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 2-58. 31 Alexandria & F. Ry. Co. v. Railroad Co., 75 Va. 780, 40 Am. Rep. 743; Mayor, etc., of City of Atlanta v. Railroad Co., 53 Ga. 120; 548 RAILROADS. (Ch. 21 panics, therefore, possess no inherent power of eminent do- main, but only such as is conferred expressly or by necessary implication. What Companies May Exercise This Power. The state may confer this power not only upon domestic, but also upon foreign, railroad corporations ; ^^ but no presump- tion will be indulged in favor of the foreign corporation. It must show its authority beyond reasonable doubt. ^^ A de facto railroad corporation may also exercise this power,^* but not a company existing without legal authority. ^^ Nor does a railroad receiver have this power, unless specially authorized thereunto by special order of court ; and, even then, he may not proceed in his own name, but must use the name of the com- pany in obtaining condemnation.^^ A lessee may not ordi- narily exercise this power ; but if it be acting under an author- ized lease of the franchise of a company whose railroad is only Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Tracy v. Rail- road Co., 80 Ky. 259; Durant v. Jersey City, 25 N. J. Law, 309; Buffalo Bayou, B. & C. R. Co. v. Ferris, 26 Tex. 588. A railroad company can tal^e land for railroad purposes only where a necessity exists which is recoijnized by statute, and provided for therein; and, when a railroad company claims such right, it must make out a case within the statute. Erie R. Co. v. Steward, 170 N. Y. 172, 63 N. E. 118. 82 Baltimore & O, R. Co. v. Harris, 12 Wall. (U. S.) 65, 20 L. Ed. 354; Abbott v. Railroad Co., 145 Mass. 450, 15 N. E. 91. See, also, Columbiis Waterworks Co. v. Long, 121 Ala. 245, 25 South. 702. 3 3 Holbert v. Railroad Co., 45 Iowa, 23. 3 4 Nichols V. Railway Co., 87 Mich. 361, 49 N. W. 538. 16 L. R. A. 371; McAuley v. Railway Co.,- S3 111. 348; Brown v. Railway Co., 68 Ark. 134, 56 S. W. 862; Oregon Cascade R. Co. v. Baily, 3 Or. 164. 3 5 Atkinson v. Railroad Co., 15 Ohio St. 21; American Loan & Trust Co. V. Railroad Co., 157 111. 641, 42 N. E. 153; New Yox-k Cable Co. V. New York, 104 N. Y. 1, 10 N. E. 332; Powers v. Railway Co., 33 Ohio St. 429. 3 6 Morrison v. Forman, 177 111. 427, 53 N. E. 73; Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570. .§ 193) DELEGATED POWER. 549 partially constructed it succeeds thereunder to the authority of the lessor necessary to the completion of the road. But here, too, the proceedings should be brought in the name of the lessor.^^ How Power is Exercised. The power of eminent domain cannot be summarily exer- cised.^" The statute which grants it to railroad corporations usually provides the mode of its exercise, and confers the jurisdiction therefor upon the courts of the state, or some spe- cial tribunal thereunto appointed, which hears and decides upon the application for condemnation of property for rail- road use by due process of law.^® This requires notice to the owner.*" If the charter does not specially describe the land to be taken, then the board of directors, as the general managers of the corporation, must decide upon the location of the road and the lands to be condemned for the use of the company ; *- and this choice will not be interfered with by the courts except in case of manifest abuse of the discretionary power existing in the directors.*^ Condemnation proceedings may be defeated 8 7 Mayor, etc., of Worcester v. Railroad Co., 109 Mass. 103; Hunt- ting V. Railway Co., 73 Conn. 179, 4G Atl. 824. 3 8 State V. Morse, 50 N. H. 9; Nichols v. Railroad Co., 43 Me. 356; Currier v. Railroad Co., 11 Ohio St. 228. 3 9 In re Clifford, 59 Me. 2G2; Ames v. Railroad Co., 21 Minn. 241; Shue v. Commissioner, 41 Mich. 638, 2 N. W. 808; Colville v. Judy, 73 Mo. 651; Missouri Pac. R. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463. 40 Huling V. Improvement Co., 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045; New York, N. H. & H. R. Co. v. Long, 69 Conn. 424, 37 Atl. 1070; Missouri River, Ft. S. & G. R. Co. v. Owen, 8 Kan. 409. 41 Williamsport & N. B. R. Co. v. Railroad Co., 141 Pa. 407, 21 Atl. 645, 12 L. R. A. 220; Stringham v. Railroad Co., 33 Wis. 471; Weidenfeld v. Railroad Co. (C. C.) 48 Fed. 615. 42 NEW YORK & H. R. CO. V. KIP, 46 N. Y. 546, 7 Am. Rep. 385; Rensselaer & S. R. Co. v. Davis, 43 N, Y. 137; Virginia & T. R. Co. V. Elliott, 5 Nev. 358; Cotton v. Boom Co., 22 Minn. 372; New York &. E. R. Co. v. Young, 33 Pa. 175. 550 ■ RAILKOADS. (Ch. 21 by the owner of the land by showing that the land is not to be taken for public use.** How Much Land, and for What Special Uses. Obviously, the company must have the right to take sufficient land to make its roadbed and lay its tracks and side tracks.** The width allowed to be taken is usually limited by the stat- ute; but the corporation need not take nor pay for the entire width, nor, indeed, a uniform width, for right of way'.*^ Cuts an - fills, especially when deep or high, require much more width than a surface road ; and the company, in order to pro- tect itself against future claims for damages caused by the natural caving in or running down of embankments, or for any other proper railroad use may take land in reasonable an- ticipation of future wants.*® Land may also be taken for spur tracks to adjacent mills or factories ; *'' but it has been held that a spur track a half mile in length is not appurtenant to the railroad, and land cannot be condemned therefor.** Condem- nation may be made also for the land necessary for stations, depots, section houses, water tanks, roundhouses, car yards and barns and repair shops — all being necessary for the beneficial enjoyment of the franchise and the efficient operation of the 48 Chicago, R. I. & P. R. Co. v. Lake, 71 111. 333; Ligare v. Chi- cago, 139 111. 46, 28 N. E. 934, 32 Am. St. Rep. 179; People v. Railroad Co., 53 Cal. G94; Appeal of Edgewood R. Co., 79 Pa. 257. 44 Williams v. Railroad Co., 13 Conn. 110. 45 Jones V. Railroad Co., 144 Pa. 629, 23 Atl. 251; Id., 169 Pa. 333, 32 Atl. 535, 47 Am. St. Rep. 916. 46 Lodge V. Railroad Co., 8 Phila. (Pa.) 345; Nading v. Railroad Co. (Tex. Civ. App. 1901) 62 S. W. 97; Rensselaer & S. R. Co. v. Davis, 43 N. Y. 137; Plymouth R. Co. v. Colwell, 39 Pa. 337, 80 Am. Dec. 526. 47 Appeal of New York, N. H. & H. R. Co., 75 Conn. 264, 53 Atl. 314; Toledo, S. & M. R. Co. v. Railroad Co., 72 Mich. 206, 40 N. W. 436. 48 Chicago & E. I. R. Co. v. Wiltse. 116 111. 449, 6 N. E. 49; Smithko V. Railway Co., 5 Pa. Dist. R. 543; Hannibal & St. J. R. Co. v. Tot- man, 149 Mo. 657, 51 S. W. 412. § 193) DELEGATED POWER. 551 road ; *' but it has been held that land may not be condemned for a car factory.^" Authority may be given to take the fee of the land ; but a perpetual easement is sufficient for railroad purposes, and usually this is what is granted to the corpora- tion.^^ Each state, however, makes its own regulations in all matters of condemnation, and its statutes must be consulted for the rules applicable therein. Lands Already Devoted to a Public Use. A railroad company may also exercise eminent domain over lands already appropriated to some public use, whether by dedication or condemnation, whenever it is necessary for the efficient exercise of its corporate franchise. ^^ This power, however, must be plainly shown in order to sustain condemna- tion of such lands in whole or in part, or of franchises already therein existing. ^^ Proceedings have been sustained for con- is Nashville & C. K. Co. v. Cowardin, 11 Humph. (Tenn.) 348; New York Cent. & H. R. R. Co. v. Gaslight Co., 63 N. Y. 326; In re New York Cent. & H. R. R. Co., 77 N. Y. 248 ; Giesy v. Railroad Co., 4 Ohio St. 308; Chicago, R. I. & P. R. Co. v. People, 4 111. App. 468; Hannibal & St. J. R. Co. v. Muder, 49 Mo. 165. Railway stations may be erected on public property. Capdevielle V. Railroad Co., 110 La. 904, 34 South. 868. 60 Eldridge v. Smith, 34 Yt. 484; NEW YORK & H. R. CO. v. KIP, 46 N. Y. 546, 7 Am. Rep. 385. 51 Lewis, Em. Dom. § 278. 5 2 Butte, A. & P. Ry. Co. v. Railway Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 208, 50 Am. St. Rep. 508; Rutland Canadian R. Co. V. Railway Co., 72 Vt 128, 47 Atl. 399; Cumberland Telephone & Telegraph Co. v. Railroad Co. (C. C.) 42 Fed. 273, 12 L. R. A. 544; Inhabitants of Greenwich Tp. v. Railroad Co., 24 N. J. Eq. 217; Little Miami «& C. & X. R. Co. v. Dayton, 23 Ohio St. 510; Youghio- gheny Bridge Co. v. Railroad Co., 201 Pa. 457, 51 Atl. 115. A railroad company may cross a right of way condemned by an- other company. Minneapolis & St. L, R. Co. v. Railroad Co., 116 Iowa, OSl, 88 N. W. 1082. 5 3 Inhabitants of Springfield v. Railroad Co., 4 Cush. (Mass.) 63; In re Boston & A. R. Co., 53 N. Y. 574; New York, H. & N. R. Co. V. Railroad Co., 36 Conn. 196; Hickok v. Hine, 23 Ohio St 523, 13 Am. Rep. 255. 552 RAILROADS. (Cll. 21 demnation to railroad use of portion of a public park ; ^* a highway ; ^^ lands already taken by another railway com- pany ; ^® and a trackage right over the roadbed and rails of another company, but express grant is required for this.®'' In virtue of this general doctrine, companies authorized to con- struct a railroad from one fixed point to another have the im- plied right of crossing highways and railroads along its right of way between these points ; ''* but the state may forbid grade crossings,^® in which case the company constructing the new road may and must make necessary alterations in the existing highway or railroad to enable it to effect its crossing by bridge or tunnel.®" 64 Colby V. Toledo. 22 Ohio Cir. Ct. R. 732, 12 O. C. D. 347; Savan- nah & T. R. Co. V. Savannah, 45 Ga. 602; People v. Kerr, 27 N. Y. 188. But general authority to construct a railroad does not authorize a location through a public park. In re New York & B. B. Ry. Co., 20 Hun (N. Y.) 201; In re Boston & A. R. Co., 53 N. Y. 574. 66 Inhabitants of Greenwich Tp. v. Railroad Co., 24 N. J. Eq. 217; Boston Water Power Co. v. Railroad Corp., 23 Pick. (Mass.) 360. 56 Seattle & M. R. Co. v. Railroad Co., 29 Wash. 491, 69 Pac. 1107; East St. Louis Connecting Ry. Co. v. Railway Co., 108 111. 265; North Carolina «& R. & D. R. Co. v. Railway Co., 83 N. C. 489. 67 Sixth Ave. R. Co. v. Kerr, 72 N. Y. 330; National Ry. Co. v. Railroad Co., 36 N. J. Law, 181. 68 National Ry. Co. v. Railroad Co., 36 N. J. Law, 181; City of Clinton v. Railroad Co., 24 Iowa, 455; Inhabitants of Springfield V. Railroad Co., 4 Cush. (Mass.) 63. 59 NEW YORK & N. E. R. CO. V. BRISTOL, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269. 60 Muhlker v. Railroad Co., 173 N. Y. 549, 66 N. E. 558; Newton V. Railroad Co., 72 Conn. 420, 44 Atl. 813 ; NEW YORK & N. E. R. CO. V. BRISTOL, supra. Change to grade crossing may be required. Wabash R. Co. v. Defiance. 167 U. S. 88, 17 Sup. Ct. 748, 42 L. Ed. 87. § 194) ABUSE OF POWER. 553 ABUSE OF POWER. 194. Tlie delegation of tlie power of eminent domain is npom the implied condition that it shall be exercised in good faith, and that the fruits obtained therefrom shall be applied solely to the public use specified in the charter. The exercise of this power in bad faith may be resisted not only in condemnation proceedings,®^ but by injunction after condemnation has been effected, and even after the land appro- priated has been taken and used by the company.®^ Where the fee has been obtained by proceedings in good faith, the com- pany may sell the land or a portion thereof to another railroad company, so as to continue its advantageous use;*^ but the company has no power of alteration or perversion of the use.®* It may take all timber and gravel and earth needed for the railroad which is found upon the right of way,®** but cannot sell or dispose of the same to others.®® It may do only that which is necessary for the improvement of the highway and «i South Carolina R. Co. v. Blake, 9 Rich. Law (S. C) 228; Hentz V. Railroad Co., 13 Barb. (N. Y.) 646: Rensselaer & S. R. Co. v. Davis, 43 N. Y. 137; New Central Coal Co. v. Iron Co., 37 Md. 537. The necessity of using the particular property sought is a pre- requisite to the exercise of the power of eminent domain over it by a corporation having that power. Highland Boy Gold Min. Co. v. Strickley, 116 Fed. 8.52, 54 C. C. A. ISG. 62 Swinney v. Railroad Co., 59 Ind. 205; Boai'd of Sup'rs of Culpeper County v. Gorrell, 20 Grat. (Va.) 484; Hill v. Western Ver- mont R. Co., 32 Vt. 68. But see Union Pac. R. Co. v. Cable Co.. 30 Colo. 133, 69 Pac. 564, 97 Am. St. Rep. 106. 03 Crolley v. Railway Co., 30 Minn. 541, 16 N. W. 422; Eastern R. Co. V. Railroad, 111 Mass. 125, 15 Am. Rep. 13. «* Proprietors of Locks & Canals on Merrimack River v. Rail road Co., 104 Mass. 1. 6 Am. Rep. 181. 05 Chapin v. Railroad, 39 N. H. .'64, 75 Am. Dec. 237. 06 Aldrich v. Drury, 8 R. I. 554, 5 Am. Rep. 624. 554 RAILROADS. (Ch. 21 the efficient operation of the road.®^ For this purpose it has been held that it may dig wells, straighten water courses, and stop flowing of springs; ®® also that it may permit the erection of any building upon the right of way which will promote the interests of the company, or facilitate the operation of the road, such as elevators, factories, and the like.'® But it can- not authorize by lease or otherwise the construction thereon of any buildings, nor any other use thereof by private persons for purely private benefit.'* Compensation. The rules determining the measure of damages in the several states are not exactly uniform ; but in general it will be found that the just compensation guaranteed by the Constitution re- quires cash payment for the land actually taken at full market value.'' ^ Incidental damages to land not actually taken are also allowed ; '* but against this the company may usually set 67 Miller v. Railway Co., 125 Mich. 171, 84 N. W. 49, 51 L. R. A. 955, 84 Am. St. Rep. 569; Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S. W. 946. 68 Hougan v. Railway Co., 35 Iowa, 5.58, 14 Am. Rep. 502; Balti- more & P. R. Co. V. Magruder, 34 Md. 79, 6 Am. Rep. 310. 69 Grand Trunk R. Co. of Canada v. Richardson, 91 U. S. 454, 23 L. Ed. 356; Gurney v. Elevator Co., 63 Minn. 70, 65 N. W. 136, 30 L. R. A. 534. 70 Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct 130, 41 L. Ed. 489; Proprietors of Locks & Canals on Merrimack River v. Railroad Co., 104 Mass. 1, 6 Am. Rep. 181. 712 Lewis, Em. Dom. §§ 460, 478; Southern Kansas Ry. Co. v. Oklahoma City, 12 Okl. 82, 69 Pac. 1050; Foote v. Railway Co., 21 Ohio Cir. Ct. R. 319, 11 O. C. D. 685. 7 2 Drury v. Railroad Co., 127 Mass. 571 ; Aldrich v. Railroad Co., 21 N. H. 359, 53 Am. Dec. 212; South Buffalo R. Co. v. Kirkover, 176 N. Y. 301, 68 N. E. 366. But mere disturbance of an "aesthetic sensibility," impairing the enjoyment of abutting owners, was held not to impair any legal right. Meti-opolitan West Side El. R. Co. v. Goll, 100 111. App. 323. See, also, Richmond P. & C. R. Co. v. Chamblin, 100 Va. 401, 41 S. E. 750; Illaiois Cent. R. Co. v. Turner, 194 111. 575, 62 N. B. ■I § 194) ABUSE OF POWER. 555 off incidental benefits.'" The value is assessed not upon the basis of the owner's use or any particular use; but any use to which the property is adapted may be taken into consideration in ascertaining the value.'^* Market value, when not control- ling, is recognized as an important element in the assessment of damages ; "^ ^ but if there be no market for that particular land at the time and place taken, the jury or appraisers are to estimate the value of the land taken in the shape taken, assum- ing that the company wishes to buy and the owner to sell the land.''" When land already appropriated to public use is con- demned, the general rule is that no compensation is required therefor, the doctrine being that it is merely a substitution or addition of a new form or instance of public use to an old 798; Mosier v. Navigation Co., 39 Or. 256, 64 Pac. 453, 87 Am. St. Rep. 652. Contra, Frost v. Railroad Co., 96 Me. 76, 51 Atl. 806. 59 L. R. A. 68. As to what are incidental damages, see Aldrich v. Metropolitan West Side El. R. Co., 195 111. 456, 63 N. E. 155, 57 L. R. A. 237. 7 3 Abney v. Railroad Co., 105 La. 446, 29 South. 890; St. Louis, K. & N. W. R. Co. V. Knapp, Stout & Co. Company, 160 Mo. 396, 61 S. W. 300; WOODFOLK v. RAILROAD CO., 2 Swan (Tenn.) 422; Meacham v. Railroad Co., 4 Cush. (Mass.) 291 ; 2 Lewis, Em. Dom. §§ 468, 470. In condemning land for a railroad, the jury may consider benefits to the land not taken, though such benefits also accrued to other land in the vicinity. Beveridge v. Lewis, 137 Cal. 619, 67 Pac. 1040, 59 L. R. A. 581, 92 Am. St. Rep. 188. 74 Cochran v. Railroad Co., 94 Mo. App. 469, 68 S. W. 367; Sulli- van V. Same, 29 Tex. Civ. App. 429, 68 S. W. 745; In re Daly, 72 App. Div. 394, 76 N. Y. Supp. 28; In re New York W. & R. R.. 21 Hun (N. Y.) 250. See, also, ALLOW AY v. NASHVILLE, 88 Tenn. 510. 13 S. W. 123, 8 L. R. A. 123 ; MISSISSIPPI & RUM RIVER BOOM CO. V. PATTERSON, 98 U. S. 403, 25 L. Ed. 200. 7 5 Illinois Cent. R. Co. v. Turner, 194 111. 575, 02 N. E. 798; Lough V. Railroad Co., 116 Iowa, 31, 89 N. W. 77; Troy & B. R. Co. v. Lee, 13 Barb. (N. Y.) 169; Sheldon v. Railway Co., 29 Minn. 318, 13 N. W. 134; Friday v. Raih-oad Co., 204 Pa. 405, 54 Atl. 339; Russell V. Railroad Co.. 71 Ark. 451, 75 S. W. 725. 7 6 WOODFOLK V. RAILROAD CO., 2 Swan (Tenn.) 422. 556 RAILR0AD3. (Cll. 21 one.^' Thus, to one having the right of public access to a water front no compensation was allowed for his deprivation thereof by the erection of a railway along the water front.'" But where the present holder under eminent domain -has made expenditures thereon, and is exercising the franchise there- under, as in case of condemnation of a trackage right of an existing railroad, compensation therefor by the new company must be made to the old.'® The appropriation of a public high- way to the use of a street railway imposes no additional servi- tude on abutting owners, even though they hold legal title to the middle of the street ; nor are they entitled to any compen- sation therefor.^" But it is otherwise when a commercial or elevated railroad is built along the highway.'^ 77 Northern R. Co. v. Earhardt, 167 Mo. 612, 67 S. W. 229; Phil- lips V. Cable Co., 131 N. C. 225, 42 S. E. 587, reversing 130 N. C. 513, 41 S. E. 1022, 89 Am. St. Rep. 868; Baltimore & H. Turnpike Co. V. Railroad Co., 35 Md. 224. 6 Am. Rep. 397; Metropolitan R. Co. V. Railway Co., 118 Mass. 290; Barre R. Co. v. Railroad Co., 61 Vt. 1, 17 Atl. 923, 4 L. R, A. 785; Cumberland Telephone & Telegi-aph Co. V. Railroad Co. (C. C.) 42 Fed. 273, 12 L. R. A. 544; Pittsburgh & L. E. R. Co. V. Bruce, 102 Pa. 23. 7 8 Frost V. Railroad Co., 96 Me. 76, 51 Atl. 806, 59 L. R. A. 68. But see Rumsey v. Railroad Co., 133 N. Y, 79, 30 N. E. 654, 15 L. R. A. 618, 28 Am. St. Rep. 600. 79 Metropolitan R. Co. v. Railroad Co., 12 Allen (Mass.) 262; En- field Toll Bridge Co. v. Railroad Co., 17 Conn. 40, 42 Am. Dec. 716. 80 Street Ry. Co. v. Doyle, 88 Tenn. 747, 13 S. W. 936. 9 L. R. A. 100, 17 Am. St. Rep. 933; Hobart v. Railroad Co., 27 Wis. 194, 9 Am. Rep. 461; Eichels v. Railway Co., 78 Ind. 761, 41 Am. Rep. 561. Operation of a street railroad is an appropriate public use of a street, and imposes no additional burden. Appeal of Milbridge & 81 Rische v. Transportation Co., 27 Tex, Qv. App. 33, 66 S. W. 324; Story v. Railroad Co., 90 N. Y. 122, 43 Am. Rep. 146; Schaaf V. Railway Co., 66 Ohio St. 215, 64 N. E. 145; Williams v. Railroad Co., 16 N. Y. 97, 69 Am. Dec. 651; Imlay y. Railroad Co., 26 Conn, 249, 68 Am. Dec, 392. § 195) PUBLIC CONTROL. 55i PUBUC CONTROI.. 195. The scope and measnre of the exercise by the state of the po\irer of railroad regrnlation is to be fonnd in the necessity to protect the public against (1) The physical dangers incident to the operation of the railroad; C. Electric R. Co., 96 Me. 110, 51 Atl. 818. See. also, Birmingham Traction Co. v. Electric Co., 119 Ala. 137, 24 Soutli. 502, 43 L. R. A. 233; Baker v. Railway Co., 130 Ala. 474, 30 South. 4&4; Canastota Knife Co. v. Tramway Co., 69 Conn. 146, 36 Atl. 1107; Philadelphia, W. & B. R. Co. V. Railroad Co. (Del. Ch.) 38 Atl. 1067; State v. Rail- road Co., 29 Fla. 590, 10 South. 590; Ashland & C. St. R. Co. v. Faulkner, 106 Ky. 332, 21 Ky. Law Rep. 154, 45 S. W. 235, 51 S. W. 806, 43 L. R. A. 554; Snyder v. Railway Co., 105 Iowa, 284, 75 N. W. 179, 41 L. R. A. 345; Chicago Office Bldg. v. Railway Co., 87 111. App. 594; Southern Ry. Co. v. Power Co., Ill Ga. 679, 36 S. E. 873, 51 L. R. A. 125; Decker v. Railway Co., 133 Ind. 493, 33 N. E. 349; Ehret v. Railroad Co., 61 N. J. Eq. 171, 47 Atl. 562; Sells v. Railway Co., 28 Wkly. Law Bui. (Ohio) 172; Poole v. Railway Co., 88 Md. 533, 41 Atl. 1009; Elfelt v. Railway Co., 53 Minn. 68, 55 N. W. 116; Placke v. Railway Co., 140 Mo. 634, 41 S. W. 915; Dean v. Railway Co., 93 Mich. 330, 53 N. W. 396; Akron, B. & C. R. Co. v. Keck, 23 Ohio Cir. Ct R. 57; Patterson v. Pittson, 8 Kulp (Pa.) 530; Linden Land Co. v. Light Co., 107 Wis. 493, 83 N. W. 851; Collins V. Traction Co., 5 Pa. Dist. R. 18; Reid v. Railroad Co., 94 Va. 117, 26 S. E. 428, 36 L. R. A. 274, 64 Am. St. Rep. 708. But see Nichols v. Railway Co., 87 Mich. 361, 49 N. W. 538, 16 L. R. A. 371; Jaynes v. Railway Co., 53 Neb. 631, 74 N. W. 67, 39 L. R. A. 751 ; Zehren v. Light Co., 99 Wis. 83. 74 N. W. 538, 41 L. R. A. 575, 67 Am. St. Rep. 844; Rlsche v. Transportation Co., 27 Tex. Civ. App. 33, 66 S. W. 324; Heilman v. Railway Co., 145 Pa. 23. 23 Atl. 389. Street railways, operated either by horse or electric power, legally authorized and located in a public highway, are not a new and ad- ditional servitude, entitling the owner of abutting land to additional compensation for the mere use of the highway or the destruction of trees standing thereon, made necessary for the proper location thereof, if he is not deprived of ingress and egress from his premises. Akron, B. & C. R. Co. V. Keck, 23 Ohio Cir. Ct. R. 57. 558 RAILROADS. (Ch. 21 (2) The discomforts and inconveniences to the traveling public and shippers; (3) The oppressions and exactions suffered from an abuse of the immense po^v^ers conferred upon them by lavr. The dangers incident to the tremendous force necessary to the operation of railroad trains through public places, and the terrible destruction of human life consequent upon negligent operation, warrant special legislation imposing on railroad com- panies duties not required of any other corporation ; and such legislation, when challenged, has uniformly been sustained by the courts as a valid exercise of the police power for the pro- tection of the life, safety, and property of the citizens.*^ The statutes embrace a variety of details too great for enumeration, some of which are to be found in legislative acts, and others in municipal ordinances passed under legislative authority. Ar illustrations may be mentioned the following: Requiring r vigilant lookout ahead from the locomotive window, ^^ and headlights and signal lights at night ; ** requiring the use of automatic air brakes connected with the locomotive, and under control of the engineer;®" requiring daily track inspection. 82 THORPE V. RAILROAD CO., 27 Vt. 140. G2 Am. Dec. 625; Cali- fornia V. Railroad Co., 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150 ; Lake Shore & M. S. R. Co. v. Smith. 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858; McKeon v. Railroad Co., 75 Conn. 343, 53 Atl. 656; Lyon V. Gombvet, 189 U. S. 508, 23 Sup. Ct. 853, 47 L. Ed. 922; Kan- sas Pac. Ry. Co. v. Mo^Ye^, 16 Kan. 573; People v. Railroad Co., 70 N. Y. 569; Cincinnati, H. & D. R. Co. v. Cole, 29 Ohio St. 126, 23 Am. Rep. 729; Wilder v. Railroad Co., 65 Me. 332, 20 Am. Rep. 098. 83 Central of Georgia Ry. Co. v. Dumas, 131 Ala. 172, 30 South. 867; Nashville & C. R. Co. v. Nowlin, 1 Lea (Tenn.) 523. 84 Bohan v. Railroad Co., 58 Wis. 30, 15 N. W. 801; Memphis & C. R. Co. V. Lyon, 62 Ala. 71; Alabama G. S. R. Co. y. Moody, 92 Ala. 280, 9 South. 238; Rascher v. Railway Co., 90 Mich. 413, 51 N. W^ 403, 30 Am. St. Rep. 447. 85 Forbes v. Railroad Co., 76 N. C. 454; .Johnson v. Southern Paciflc Co., 117 Fed. 462, 54 C. C. A. 508; Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1903, p. 367]. § 195) PUBLIC CONTROL. 559 and even more frequent in peculiarly dangerous places;®' forbidding grade crossings in populous communities ; ' ' re- quiring gates and guards on thronged streets ; ®* forbidding the crossing of another railroad without first coming to a dead stop ; ^® forbidding the blocking of highway crossings above a fixed number of minutes ; ** requiring, in case of danger from an obstruction on the track, the use of all means to stop the train to prevent an accident; °^ the regulation of speed in urban communities; ®^ requiring bell or whistle signals on ap- proaching highway crossings ; '^ requiring the making and keeping safe crossings for highways over its track,^* and main- taining the entire highway on its right of way ; '® requiring the reconstruction of the railroad so as to prevent grade cross- ^ 86 Smith V. Railroad Co., 67 N. J. Law. 636, 52 Atl. 634, 59 L. R. ^ A. 802. 87 New York & N. E. R. Co.'s Appeal from Railroad Com'rs, 62 Conn. 527, 26 Atl. 122; Id., 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269. 8 8 Ante, § 122, n. 75. 88 Downey v. Railroad, 161 Pa. 588, 29 Atl. 126. »oTown of Mason v. Railroad Co., 51 W. Va. 183. 41 S. E. 418; Anderson v. Railroad Co., 81 Miss. 587, 33 South. 840. 81 South & N. A. R. Co. V. Williams, 65 Ala. 74. Pack of hounds. Fink V. Evans, 95 Tenn. 413, 32 S. W. 307. 92 City of Plattsburg v. Hagenbush, 98 Mo. App. 669, 73 S. W. 725; Houston, E. & W. T. R. Co. v. Powell (Tex. Civ. App.) 41 S. W. 695; Washington Southern Ry. Co. v. Lacey, 94 Va. 400, 2G S. E. 834; Meyers v. Railroad Co., 57 Iowa, 555, 10 N. W. 890, 42 Am. Rep. 50; Chicago & A. R. Co. v. Carlinville, 200 111. 314, 65 N. E. 730, 60 L. R. A. 391, 93 Am. St. Rep. 190. 93 Ft. Worth & R. G. Ry. Co. v. Greer, 29 Tex. Civ. App. 5G1, 69 S. W. 421; Curtis v. Railway Co., 26 Tex. Civ. App. 304, 63 S. W. 149; Northern Pac. Ry. Co. v. Spike, 121 Fed. 44, 57 C. C. A. 384; Western Union R. Co. v. Fulton, 04 111. 271; Pittsburg, C. & St. L. Ry. Co. V. Brown, 67 Ind. 45, 33 Am. Rep. 73. 94 Cook V. Railroad Co., 125 Mass. 57; Baltimore & O. S. W. R. Co. V. State, 1.59 Ind. 510, 65 N. E. 508; City of Zanesville v. Fan- nan, 53 Ohio St. 605. 42 N. E. 703, 53 Am. St. Rep. 664. 95 Boston & M. R. Co. v. Com'rs, 79 Me. 386, 10 Atl. 113. C On. -< OiM^rpt^^ C^^'t^i^y — ' 5G0 RAILROADS. (Ch. 21 ings or other extraordinary clang"ers; ®" regulating the wages and hours of employes;®^ and other like provisions to pro- mote the public safety.®* Public Comfort and Convenience. Among the regulations to augment the public convenience and comfort which have received judicial approval may be mentioned statutes establishing stations, even to the extent of requiring the company to exercise its power of eminent domain to do so ; ®* requiring passenger stations and ticket offices to be open a prescribed length of time before the arrival of trains; ^°° requiring drinking water and closets on passenger coaches; ^"^ requiring separate coaches for white and colored persons; ^"^ forbidding the running of freight trains on Sun- 9 6 New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 2G9. 87 St. Louis, I. M. & S. K. Co. V. Paul, 173 U. S. 404, 19 Sup. Ot. 419, 43 L. Ed. 746. 98 Town of Clarendon v. Railroad Co., 75 Vt. 6, 52 Atl. 1057; Fences, Cincinnati, N. O. & T. P. Ry. Co. v. Stonecipher, 95 Tenn. 314, 32 S. W. 208 ; Kelver v. Railroad Co., 126 N. Y. 365, 27 N. E. 553. Act of Congress requiring cars used in Interstate commerce to be equipped with automatic couplers, Voelker v. Railroad Co. (C. C.) 116 Fed. 867. 9 9 Dolan V. Railroad Co., 175 N. Y. 367, 67 N. E. 612; City of Wor- cester V. Railroad Co., 109 Mass. 103. But as to lack of requirement In this respect at common law, see Page V. Railroad Co., 129 Ala. 232, 29 South. 676. 100 Brady v. State, 15 Lea (Tenn.) 628; Louisville & N. R. Co. V. Commonwealth, 102 Ky. 300, 43 S. W. 458, 53 L. R. A. 149. 101 Louisville & N. R. Co. v. Commonwealth, 20 Ky. Law Rep. 100, 45 S. W. 362 ; Id., 103 Ky. 605, 45 S. W. 880. 102 piessy V. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256; Bowie v. Electric Co., 125 Ala. 397, 27 South. 1016, 50 L. R. A. 632, 82 Am. St. Rep. 24; West Chester & P. R. Co. v. Miles, 55 Pa. 209, 93 Am. Dec. 744; Smith v. State, 100 Tenn. 494, 46 S. W. 560, 41 L. R. A. 432. But an act excepting an officer in charge of a prisoner from the provisions of the separate coach law creates an exception in favor of the officer only. Louisville & N. R. Co. v. Catron, 102 Ky. 323, 43 S. W. 443. § 195) PUBLIC CONTROL. 561 day; ^°' requiring live stock in transit to be fed and watered daily; ^°* committing the supervision of railroad operations to a board of commissioners and imposing the expense upon the railroad companies;^"' requiring connection with other rail- roads and hauling of their cars; ^°' and, in general, whatever will provide necessaries and conveniences for the traveling pubhc and shippers by rail.^"'' Exactions and Discriminations. Increasing commerce and improved methods of railroading in modern times have stimulated railway combinations, and disclosed tendencies to abolish competition and establish mo- nopolies in transportation, with increased facilities for unjust discrimination and extortionate charges for transportation. To prevent such untoward results, many states have established railroad commissions with powers of visitation, and passed acts reducing charges for transportation; and forbidding rebates; a greater charge for a short haul than for a long one over the same route; and other modes of unjust discrimination. Con- gress, also, in 1887, in the exercise of its express power to regulate commerce between the states, passed an act creating an interstate commerce commission, and regulating interstate commerce by numerous provisions intended to prevent the evil? consequent upon unlawful combination and monopoly. Since 103 state V. Railroad Co., 15 W. Va. 362, 36 Am. Rep. 803. 104 International & G. N. Ry. Co. v. McRae, 82 Tex. 614, 18 S. W. 672, 27 Am. St. Rep. 926; Toledo, W. «& W. Ry. Co. v. Thomp- son, 71 111. 434; Comer v. Railroad Co., 52 S. C. 36, 29 S. E. 637; United States v. Han-is, 85 Fed. 533, 29 C. C. A. 327. 10 5 Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255, 35 L. Ed. 1051. Expense of safety bars ordered by railroad commission, Detroit, Ft. W. & B. I. Ry. Co. v. Commissioners, 127 Mich. 219, 86 N. \Y. 842, 62 L. R. A. 149. loeMyrick v. Railroad Co., 107 U. S. 102, 1 Sup. Ct. 425. 27 L. Ed. 325. 10- Stopping train, Delamatyr v. Railroad Co., 24 Wis. 578; Black V. Railroad Co., 108 N. Y. 640, 15 N. E. 389; Fuller v. Railroad Co., 21 Conn. 557. IXG.CORP. — 80 5t)i: RAILROADS. (Ch, 21 this date the state legislation has by judicial construction been confined exclusively to matters of transportation in a single state; ^°* and the acts passed by state legislatures before as well as since the Interstate Commerce Act are held invalid in so far as they interfere either directly or indirectly with inter- state commerce, upon the ground that such subjects, having been legislated upon by the federal government, are now within its jurisdiction.^**^ State commissions and regulations, how- ever, continue in authority over purely local transportation.^^" The SJierman Act. In furtherance of mterstate commerce regulation. Congress, in 1890, passed an act commonly called the "Sherman Act," ^^' forbidding the formation of combinations by railroad com- panies or their shareholders for the purpose of monopolizing any portion of interstate commerce. This act, as well as the Interstate Commerce Act, has been challenged for unconstitu- tionality in both state and federal courts ; but in the celebrated recent Northern Securities Case ^^^ its constitutionality was sustained by a majority decision of the Supreme Court of the United States, the law being declared by the Justice ^^' giving 108 Carton v. Railroad Co., 59 Iowa, 148, 13 N. W. 67, 44 Am. Rep. 672; Hardy v. Railroad Co.. 32 Kan. G9S, 5 Pac. 6. 109 Planley v. Railroad Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L Ed. 833; Peik v. Railroad Co., 94 U. S. 164, 24 L. Ed. 97; Clilcago M. & St. P. R. Co. V. Acliley, 94 U. S. 179, 24 L. Ed. 99; Cincin nati, N. O. & T. P. R. Co. v. Commission, 162 U. S. 184, 16 Sup Ct. 700, 40 L. Ed. 935. 110 Louisville & N. R. Co. v. Commissioners (C. C.) 19 Fed. 679 Heiserman v. Railroad Co., 63 Iowa, 732, 18 N. W. 903; Chicago M. & St. P. Ry. Co. V. Solan. 169 U. S. 133, 18 Sup. Ct. 289. 42 L Ed. 688; Louisville & N. R. Co. v. Eubank, 184 U. S. 27, 22 Sup Ct. 277, 46 L. Ed. 416. 111 Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]. 112 NORTHERN SECURITIES CO. V. UNITED STATES, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679. 113 Four justices broadly aftirmed and four others denied the ap- plication of the act to the syndicate operation involved; while Brew- § 195) PUBLIC CONTROL. 563 the deciding opinion to be a valid regulation to prevent the un- reasonable restraint of trade from the misuse of corporate powers by railway corporations or a majority of their stock- holders. Interstate Commerce Act. Among the provisions of the Interstate Commerce Act '•^* and of laws of various states for local raihvay regulations are found : (1) Requirements that all charges for transportation shall be reasonable, just, and equal, without rebate or undue preference ; and every carrying company shall publish rates for transportation, and adhere to them, with povv'er to advance or reduce them only on due notice; ^^^ that railway officials must, on lawful inquisition, disclose any unlawful practices by railroads, of which they have knowledge, and even to which they have been parties, they being thereby exempted from prosecution therefor.^^® (2) Forbidding pooling, unequal dis- criminations between connecting carriers; advance or reduc- tion of rates without notice ; a greater charge for a short haul "under substantially similar circumstances and conditions" than for a long haul which includes the short one ; all rebates or undue preferences. ^^'^ (3) Permitting a reduction of charges er, J., was of opinion that the Northern Securities Company was "an unreasonable combination in restraint of interstate commerce, and therefore unlawful"; and the decree of dissolution was thus affirmed. Id., page 3ni, 193 U. S., page 4G6, 24 Sup. Ct, 48 L. Ed. G79. 114 Act Feb. 4, 1S87, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]; Act March 2, 1889, c. 382, 26 Stat. 855; Act Feb. 10, 1891, c. 128, 26 Stat. 743 [U. S. Comp. St. 1901, p. 3103]; Act Feb. 11, 1893, c. 83, 27 Stat. 443 [U. S. Comp. St. 1901, p. 3173]; Act March 2. 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]; Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1903, p. 303]. iisFitchburg R. Co. v. Gage, 12 Gray (Mass.) 393; Thayer v. Burchard, 99 Mass. 519. 116 Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819. 117 Wabash. St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244. See Interstate Commerce Commission v. Rail- road Co., 167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306. 564 RAILROADS. (Cll. 21 in favor of charitable or public objects; *^^ lower charges for train loads than for car loads and for car-load lots than for smaller consignments; ^^* companies to make their own sched- ules of rates, commissions to revise them, and alter if unjust or unreasonable.^^'' Public Use Warrants Public Regulation. All these items of regulation intended to prevent the injus- tice resulting from conduct or acts of discrimination and ex- tortion have been sustained as valid regulations of commerce by the decisions of the state and federal courts, cited under each topic. From the earliest American case ^^^ on railroad regulation down to the recent Northern Securities Case,^^^ the constant current of judicial decision with varying force has been towards the fundamental doctrines that wherever prop- erty is devoted to public use it is subject to public regulation; and the measure of that regulation is the pubHc safety and welfare.^^' 118 RAGAN V. ATKEN, 9 Lea (Tenn.) 609, 42 Am. Rep. 689; Con- cord & P. R. R. V. Forsaith, 59 N. H. 122, 47 Am. Rep. 181. 119 Interstate Commerce Commission v. Railroad Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699; Union Pac. R. Co. v. Goodridge, 149 U. S. 680, 13 Sup. Ct. 970, 37 L. Ed. 986. 120 Cincinnati, N. O. & T. P. R. Co. v. Comm'ssion, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935; Same parties reversed, 107 U. S. 479, 17 Sup. Ct. 890, 42 L. Ed. 243; Interstate Commerce Commission v. Railway Co. (C. C.) 76 Fed. 183. 121 Louisville, C. & C. R. Co. v. Chappell (1838) Rice (S. C.) 383. 122 Ante, notes 112, 113. 12 3 WOODFOLK V. RAILROAD 00. (18.">2) 2 Swan (Tenn.) 422; East Tennessee & G. R. Co. v. St. .John (1858) 5 Sneed (Tenn.) 524, 73 Am. Dec. 149; THORPE v. RAILROAD CO. (1854) 27 Vt. 140. 62 Am. Dec. 625; Pittsburgh, C. & St. L. Ry. Co. v. Brown (1879) 67 Ind. 45, 33 Am. Rep. 73; CHICAGO, B. & Q. R. CO. v. IOWA (1876) 94 U. S. 155, 24 L. Ed. 94; State of California v. Railroad Co. (1888) 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150; Lake Shore & M. S. R. Co. V. Ohio (1898) 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702; NORTHERN SECURITIES CO. v. UNITED STATES (1904) 193 U. S. 197, 24 Sup. Ct. 430, 48 L. Ed. 679. § 196) MUNICIPAL REGULATION. 565 MUNICIPAL REGULATION. 196. Municipal corporations, under delegation from the state, may regnlate the operations of railroads ivithin their boundaries to the extent of the power conferred upon them. The legislative department, as the depositary of the police power of the state ^^* and the political guardian of the public safety and welfare,^-^ generally exercises public control and regulation of corporations by statutes fixing the limits of cor- porate power, and prescribing the public duties to be perform- ed by them. But, as we have heretofore seen,^^® such power as to affairs within the corporate limits may be delegated to municipalities, either in whole or in part, expressly or by nec- essary implication. The power may be expressly conferred in the charter or by general statutes ; and it will be implied in favor of all municipalities vested with police power and the power of street regulation.^^^ In such cases the municipali- ties may regulate railroad corporations within their boundaries wl'tenever the state has failed to exercise its inherent right of regulation.^ -^ Commercial Roads. A grant of power to construct a railroad along a street does not exist in a municipality unless plainly given by the legis- lature.^^" It is not a necessary incident to the maintenance of 124 McKibbin v. Ft. Smith, 35 Ark. 352; Northwestern Fertilizing Oo. V. Hyde Parli, 97 U. S. 059, 24 L. Ed. 1036. 125 City of Louisville v. Wible. 84 Ky. 290, 1 S. W. 605; Tucker V. Virginia City, 4 Nev. 20; Aaron v. Broiles, 64 Tex. 316, 53 Am. Rep. 764. 126 Ante, § 116. 12T Atchison St. Ry. Co. v. Railway Co., 31 Kan, 661, 3 Pac. 284; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Illi- nois Cent. R. Co. v. Galena, 40 III. 344. 128 Ante, § 122. 1 = 8 Merrill v. Monticello, 138 U. S. 673, 11 Sup. Ct. 441, 34 L. Ed. 1069. 566 RAILROADS. (Ch. 21 streets and highways and the exercise of poHce power. Such a public use of a highway is extraordinary, and not to be grant- ed to a railroad corporation except by undoubted authority. ^^^ It is a perversion of a franchise to operate a street railroad to use the same for a commercial or through railroad. ^^^ The streets of a city are intended for ordinary local and public use, and not for such dangerous and foreign purposes as the running of great trains of through railroads thereon.^ ^^ When such right is granted by the legislature, or by the municipality under express authorization, the municipality may then regu- late and control the operation of the trains thereon ; and ordi nances have been held valid limiting the speed to four miles an hour,^^^ and requiring the cars to be moved along the streets by horse power; ^^* and, as we have seen,^^'' it may also con- trol the movement of trains at street crossings, and require gates and guards therefor. STREET RAILW^AYS. 197. The control of street railways is nsually exercised ezcln- sively by the municipal corporations in ivliicli they operate. In most of the United States quasi public corporations using electric power within the municipal boundaries are required 130 Crofut V. Danbury, 65 Conn. 294, 32 Atl. 365. 131 South &, N. A. K. Co. V. Railroad Co., 119 Ala. 105, 24 South. 114. 132 Grey v. Traction Co., 56 N. J. Eq. 463, 40 Atl. 21. 133 Knobloch v. Railway Co., 31 Minn. 402, 18 N. W. 106; Chi- cago & A. R. Co. V. Carlinville, 200 111. 314, 65 N. E. 730, 60 L. R. A. 391, 93 Am. St. Rep. 190; Boggero v. Railroad, 64 S. C. 104, 41 S. E. 819; Illinois Cent. R. Co. v. Eicher, 100 111. App. 599; Chicago, B. & Q. R. Co. V. Pollock, 195 III. 156, 62 N. E. 831. 134 City of Buffalo v. Railroad Co., 152 N. Y. 270, 46 N. E. 496; Prewitt V. Railway Co., 134 Mo. 615, 36 S. W. 667; Bearden v. Mad- ison, 73 Ga. 184. 13 5 Ante, § 122, § 197) STREET RAILWAYS. 567 either by charter provision in the general acts of incorporation, or by constitution, or by statute, to have the consent of the municipahty to the erection of poles and the stringing of wires in the streets for the purpose of carrying the necessary cur- rents to provide the hght and power used in their operations. vSince nearly all street railways are now operated by electricity, these statutes suffice to confer upon municipalities the control of these modern public utilities. ^^"^ In more than a score of states are to be found constitutional or legislative enactments conferring this power upon the municipal corporation over street railways of all kinds ;^^'' and, where not so expressly conferred, the power of regulating street railways has been generally implied in favor of municipalities from grants of the police power and the maintenance and control of streets.^ ^* Mode of Regulation. The details of operating a street railway in a municipality may be specified by contract between the railway company and the municipality, as has often been done. This contract may exist in the form of written documents signed by the authorities of the municipality and the company; or it may exist in the form of an ordinance or ordinances enacted by the city and accepted by the company. ^^^ In either case the con- tract is protected by the contract clause of the federal Consti- tution, and cannot be impaired by subsequent ordinances in 136 2 Dill. Mnn. Corp. §§ GUS, 705-707. 137 Such requirements exist in Alabama, Arkansas, California, Colorado, Georgia, Illinois, Indiana, Iowa, Massacliusetts, Micliigan. Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Penn- sylvania, Tennessee, Texas, and Washington. 138 STANLEY V. DAVENPORT, 54 Iowa, 463, 2 N. W. 1064, 37 Am. Rep. 216; People's Pass. R. Co. v. Railroad Co., 10 Wall. (U. S.) 38, 19 L. Ed. 844; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224. 139 1 Dill. Mmi. Corp. § 450. See Whiting v. New Baltimore, 127 Mich. 66, 86 N. W. 403; Over v. Greenfield, 107 Ind. 231. 5 N. E. 872; Argus Co. v. Albany, 55 N. Y. 495, 14 Am. Rep. 290; Duncombe V, Ft. Dodge, 38 Iowa, 281. 568 RAILROADS. (Cll. 21 derogation of the right of the company,**" save only in the exercise of the poHce power/ *^ which may not be bargained away by either city or state.*** Franchises and Licenses. Franchises, being pubUc privileges granted by the sovereign, are usually found expressed in the charter of the railway cor- poration. The power to exercise these franchises from the state is usually dependent upon the municipal consent, generally called "license." Franchise and license are both obviously necessary for the operation of a street railway.**^ The license given by the municipality may be revoked at any time before it has been acted upon by the company; *** but after the com- pany has accepted the license and acted upon it it is irrevoca- ble,*** and becomes a part of the franchise. The municipality may give or refuse its consent to the exercise of the franchise. It may give it absolutely or conditionally. When the ordinance containing the conditions and granting the license is acted upon by the company, it is under obligation to comply with those conditions as fully as though they were expressed in the char- 140 CITY OF DETROIT v. RAILWAY CO., 184 U. S. 368, 22 Sup. Ct. 410, 46 L. Ed. 592; City of Cleveland v. Railroad Co. (May 31, 1904) 194 U. S. 517, 24 Sup. Ct. 756, 48 L. Ed. 1102. 141 Cooley, Const. Lim. (6th Ed.) 708-710; Chicago & N. W. R. Co. V. Fuller, 17 Wall. (U. S.) 560, 21 L. Ed. 710. 142 THORPE V. RAILROAD CO., 27 Vt. 140, 62 Am. Dec. 625; BOSTON BEER CO. v. MASSACHUSETTS. 97 U. S. 25, 24 L. Ed. 989; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079. 143 Union Trust Co. v. Railroad Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963; City of Detroit v. Railway Co.. 184 U. S. 368, 22 Sup. Ct. 410, 46 L. Ed. 592; City of Belleville v. Railway Co., 152 111. 171. 38 N. E. 584, 26 L. R. A. 081; Erie R. Co. v. Steward, 170 N. Y. 172, 63 N. E. 118. 144 Cook V. Stearns, 11 Mass. 533; Foot v. Railroad Co., 23 Conn. 214. 145 McAulay v. Railroad Co., 33 Vt. 311, 78 Am. Dec. 627; Mil- waukee & N. R. Co. V. Strange, 03 Wis. 178, 23 N. W. 432; Rich- ards V. Railroad Co., 137 Fa. 524, 19 Atl. 931, 21 Am. St. Rep. 892; Brooklyn Cent. R. Co. v. Railroad Co., 32 Barb. (N. Y.) 358. § 197) STREET RAILWAYS. 569 ter as conditions of the franchise.^** Indeed, it is not un- common to call the power so conferred upon street railways by a municipality a franchise.^ *^ Ulectric or Horse Power. A street railway company adapted for carrying- passengers and parcels, making frequent stops for taking on and dischar- ging them, is a great pubUc convenience. Such a railway us- ing horse power has been recognized for nearly a century as an appropriate use of the highways of New York.^*^ Electric power, by giving greater speed and propelling larger and heavier cars, has increased the dangers of street railways ; and the planting of poles and the stringing of wires has operated to the disadvantage of the public and also of abutting owners. But the courts, in recognition of the public demand for greater speed and increased facilities of locomotion, have generally held the application of electricity to street railways not to be a new servitude,^*® and sustained the municipal licenses granted to horse car companies to use electric power.^^° In the same spirit it has been held that a through railroad company, li- censed to occupy the streets for the transportation of passen- 146 Campbell v. Railroad Co., 175 Mo. 161, 75 S. W. 86; Hovelman V. Railroad Co., 79 Mo. 632; City R. Co. v. Railroad Co., 166 U. S. 557, 17 Sup. Ot. 653, 41 L. Ed. 1114. 147 Johnson v. New Orleans, 105 La. 149, 29 South. 355; People V. Railroad Co., 178 111. 594, 53 N. E. 349, 49 L. R. A. 650. 148 The Bowery Horse Railroad was laid in 1831. 149 Imlay v. Railroad Co., 26 Conn. 249, 68 Am. Dec. 392; Hinch- man v. Railroad Co., 17 N. J. Eq. 75, 86 Am. Dec. 252; Grand Rap- ids & I. R. Co. V. Heisel, 38 Mich. 62, 31 Am. Rep. 306. isoLockhart v. Railway Co., 139 Pa. 419, 21 Atl. 26; Briggs v. Railroad Co., 79 Me. 363, 10 Atl. 47, 1 Am. St. Rep. 316; Taggart V. Railway Co., 16 R. I. CCS. 19 Atl. 326. 7 L. R. A. 205; City of De- troit V. Railroad Co. (C. C.) 56 Fed. 874; Street Ry. Co. v. Doyle, 88 Tenn. 747, 13 S. W. 936, 9 L. R. A. 100, 17 Am. St. Rep. 933. But see Bonham v. Railroad Co., 158 Ind. 106. 62 N. E. 996. whore it was held that spood ordinances passed regulating the operation of a horse railroad company wore not applicable to its successor in operating its cars by electricity. 570 RAILROADS. (Ch. 21 gets only, cannot use them for hauling freight; ^** nor can a street railway use its tracks for the sole purpose of hauling freight cars.^^- But it has also been held that a street rail- way may haul freight as well as passengers/^' Miscellaneous. Municipalities may require street railway companies to warm passenger stations in cold weather sufficiently for the health and comfort of passengers ; ^^* to keep the surface of the street occupied by it in good repair; ^^^ also to sprinkle it; ^^® and to pave it, or assist therein ; ^^'^ and generally to do such other acts as are necessary for the public convenience and safety.^ ^* JUDICIAL POWER. 198. The courts contribute their aid to the regulation of railroads chiefly through the ^vrits of mandamus and injunction, xrhereby the performance of public duties is enforced, and the abuse or usurpation of corporate po\irers is effectually prevented. iBi St. Louis & M. R. R. Co. v. Kirkwood, 159 Mo. 239. 60 S. W. 110, 53 L. R. A. 300. 152 South & N. A. R. Co. V. Railroad Co., 119 Ala. 105, 24 South. 114. 153 Newell V. Railway Co., 35 Minn. 112, 27 N. W. 839, 59 Am. Kep. 303; State v. Traction Co., 64 Ohio St. 272. 60 N. E. 291; Ay cock V. Association, 26 Tex. Civ. App. 341, 63 S. W. 953. 154 St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, 66 S. W. 661, 91 Am. St. Rep. 74; Page v. Railroad Co., 129 Ala. 232, 29 South. 676. 155 City of Chicago v. Traction Co., 199 111. 259, 65 N. E. 243, 59 L. R. A. 666; Village of Mechanicville v. Railway Co., 67 App. Div. 628, 74 N. Y. Supp. 1149; Milhau v. Sharp, 27 N. Y. Oil, 84 Am. Dec. 314; Story v. Railroad Co., 90 N. Y. 158, 43 Am. Rep. 146. 156 state V. Railroad Co., 50 La. Ann. 1189, 24 South. 26.5, 56 L. R. A. 287. 157 Fielders v. Railway Co., 67 N. J. Law, 76, 50 Atl. 533; City of Philadelphia v. Railway Co., 7 Phila. (Pa.) 321. isspa-yncias v. Naudain, 2 Har. (Del.) 317. § 198) JUDICIAL POWER. 571 The regulation of railroads is peculiarly a legislative func- tion, and is therefore usually provided for by statutes and mu- nicipal ordinances ; but laws are frequently disobeyed — the legal requirements are not performed — and the aid of courts is often necessary to effectuate the public regulation of rail- roads. Even when railroad commissions, in the exercise of their plenary powers of regulation, come, as they often do, upon debatable ground, the railroad companies may appeal to the courts for their protection.^ ^^ So, too, when the companies fail or refuse to perform their public duties, and the commis- sions fail to exercise their lawful powers, or are not sufficiently empowered for the purpose, the aid of the courts may be in- voked by the commission ^^° or the party injured ^'^ to declare the delinquency of the company, or the illegality of its con- duct, and to apply the proper remedy to enforce the law. Tb writs usually employed for these purposes are mandamus, ^®- to compel the performance of a legal duty; and injunction, ^'^ to prevent the company from abusing its lawful powers or usurping powers not conferred upon it. Illustraiions. For example, if a solvent railroad company refuse to operate the whole or any part of its railroad system, it may be com- pelled to exercise its public franchise and perform its public 169 CHICAGO, M. & ST. P. RY. CO. v. MINNESOTA, 134 U. S. 418, 10 Sup. Ct. 462. 33 L. Ed. 970; Smyth v.. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819. 160 Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]. 161 Currier v. Railroad Corp., 48 N. H. 321; State v. Railway Co.. 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515. 67 Am. St Rep. 739. 162 People V. Railway Co., 14 Hun (N. Y.) 371; Inhabitants of Cambridge v. Railroad Co., 7 Mete. (Mass.) 70 ; State v. Railway Co., 39 Minn. 219, 39 N. W. 153; State v. Gorham, 37 Me. 451. i63Hinchman v. Railroad Co., 17 N. J. Eq. 75, 86 Am. Dec. 252; Brainard v. Railroad Co., 7 Cush. (Mass.) 506; Currier v. Railway Co., 6 Blatch. (U. S.) 487, Fed. Cas. No. 3,493; Sparliawk v. Rail- way Co., 54 Pa. 401. 572 RAILROADS. (Ch. 21 function by the writ of mandamus; ^®* or its charter might be forfeited by quo warranto proceedings.^'" So, too, if a railway company attempt without the consent of the state to alienate its franchise to construct and operate a railroad, such alienation may be forbidden by injunction ; ^®® and the company to which the franchise was granted for the public use may be compelled by mandamus to perform its duty; ^''^ or its charter might be forfeited by quo warranto proceedings instituted by the attor- ney general for that purpose.^'* So, too, mandamus may be used to compel a railroad company to re-establish a station ; or, under law, to locate a new station,^ ®^ to construct, repair, or operate its railroad.^''" And injunction may be employed to 184 Northern Pac. R. Co. v. Dustin, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092; People v. Kailroad Co., 104 N. Y. 58, 9 N. E. 856, 58 Am. Rep. 484. 166 Ohio & M. Ry. Co. v. People, 120 111. 200, 11 N. E. 347; Peo- ple V. Road Co., 23 Wend. (N. Y.) 193, 35 Am. Dec. 551. 188 Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307; State T. Rail- road Co., 53 Kan. 377, 36 Pac. 747, 42 Am. St. Rep. 295. 167 Appeal of Stewart, 56 Pa. 413; Commonwealth v. Smith, 10 Allen (Mass.) 448, 87 Am. Dec. 672. 168 State V. Railroad Co., 116 AVis. 142, 92 N. W. 546; Pe-ple v. Railway Co.. 117 Cal. 604, 49 Pac. 736; Attorney General v. Rail- road Co., 28 N. C. 456. 169 State V. Railway Co., 89 Minn. .363, 95 N. W. 297; Same v, Same (Minn.) 96 N. W. 81; City of Worcester v. Railroad Co., 109 Mass. 103. But the common law does not impose upon a railroad company the duty of establishing and maintaining a comfortable waiting room for those intending to become passengers, and no such duty exists unless imposed by charter, or some other statutory regula- tion. Page V. Railroad Co., 129 Ala. 232, 29 South. 676; Mont- gomery & E. Ry. Co. V. Thompson, 77 Ala. 448, 54 Am. Rep. 72; People V. Railroad Co., 104 X. Y. 58, 9 N. E. 856. 58 Am. Rep. 484; Northern Pac. R. Co. v. Washington, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092; Nashville, C. & St. L. R. Co. v. State, 137 Ala. 439. 34 South. 401. iTo People V. Railroad Co., 104 N. Y. 58, 9 N. E. 856, 58 Am. Rep. 484; State v. Gorham, 37 Me. 451; State v. Railway Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739. I § 198) JUDICIAL POWER. 573 prevent the fraudulent change of a location ; *'* a misuse of rights in the highway; ^^^ a resumption of an abandoned fran- chise;^'^' or the building on an illegal location;^''* and by mandatory injunction the company may be compelled to accept goods; ^'^ to receive cars; ^''^ to restore the highway.^^' 171 Chapman v. Railroad Co., 6 Ohio St. 119. 172 Birmingham Traction Co. v. Telephone Co., 119 Ala. 144, 24 South. 731. 17 3 Wright V. Light Co., 95 Wis. 29, 69 N. W. 791, 36 L. R. A. 47, 60 Am. St. Rep. 74. 174 Fall River Iron Works Co, v. Railroad Co., 5 Allen (Mass.) 221. 178 Toledo, A. A, & N. M. R. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730, 19 L. R. A. 8S7. 176 Louisville & N. R. Co. v. Coal Co., Ill Ky. 960, 64 S. W. 960, 22 Ky. Law Rep. 1318, 55 L. R. A. 601. 177 Grey v. Traction Co., 56 N. J. Bq. 463, 40 Atl. 21. 574 ELECTRIC COMPANIES. (Ch. 22 CHAPTEE XXIL ELECTRIC COMPANIES. 199. Telegraphs and Telephones. 200. Federal Control. 201. State Control. 202. Limitations. 203. Eminent Domain. 204. Municipal Control. 205. Construction and Operation. 206. Electric Light Companies. TELEGRAPHS AND TELEPHONES. 199. Telegrapli and teleplioiie companies are quasi pnblic corporations in tliat (1) They are public benefits to wbicb all persons applying are entitled on equal terms and v/ithout discrimina- tion. (2) They have highv^ay franchises and the povirer of eminent domain. The telegraph rapidly transmits written words ; the tele- phone rapidly conveys words spoken. Both are designed and used for the same purpose — the speedy intercommunication of thought between distant points. Both are operated by elec- tricity on wires, and are intended for public use. They exist under the same conditions, supply the same social wants, and are subject to the same natural laws. Recognition of these facts has led legislatures and courts to regard them as sub- ject to the same rules and doctrines of law. The telegraph, as the elder child of invention, was the object of legal con- sideration and provision for forty years before its younger sis- ter, the telephone, was born. During that period many stat- utes were passed and decisions made having reference solely to the telegraph, so that by the year 1880 there was a body of § 199) TELEGRAPHS AND TELEPHONES. 575 law fairly well formulated and digested controlling telegrapl". companies in their relations to the public. During the last twenty-five years, by homologation rather than legislation, tel- ephone companies have been brought within the scope of this body of law; so that now, with the single discordant excep- tion of the federal Post Roads Act,^ telegraphs and telephones seem to occupy identical positions and relations in the eye of the law.^ Telegraph Includes Telephone. Telephone companies have been held to be lawfully organ- ized under general statutes enacted, before the invention of the telephone, to incorporate "telegraph companies" ; ^ and under statutes authorizing the exercise of the power of eminent do- main by "telegraph companies" the courts have condemnet' a right of way for telephone companies.* So, statutes regulat- ing "telegraph companies" include also telephone companies." 1 Rev. St. U. S. § 52G3 et seq. [U. S. Comp. St. 1901, p. 3579]. a Wisconsin Telephone Co. v. Oshkosb, 62 Wis. 32, 21 N. W. 82S; Cumberland Telegraph & Telephone Co. v. Railway Co. (C. C.) 42 Fed. 273, 12 L. R. A. .544; City of Richmond v. Telegraph Co., 85 Fed. 19, 28 C. C. A. 659; Cincinnati Inclined Plane Ry. Co. v. As- sociation, 48 Ohio St. 390, 27 N. E. 890, 12 L. R. A. 534, 29 Am. St. Rep. 559. 3 HUDSON RIVER TEL. CO. v. RAILWAY CO., 135 N. Y. 393. 32 N. E. 148, 17 L. R. A. 674, 31 Am. St. Rep. 838; York Telephone Co. V. Keesey, 5 Pa. Dist. Ct. Rep. 366. 4 Gulf, C. & S. F. Ry. Co. v. Telephone Co., 18 Tex. Civ. App. 500, 45 S. W. 151; Southwestern Telegraph & Telephone Co. v. Railroad Co. (Tex. Civ. App.) 52 S. W, 106; Mobile & O. R. Co. v. Cable Co., 101 Tenn. 62, 46 S. W. 571, 41 L. R. A. 403; Duke v. Telegraph Co., 53 N. J. Law, 341, 21 Atl. 460, 11 L. R. A. 664; Northwestern Tele- phone Exch. Co. V. Railway Co., 76 Minn. 334, 79 N. W. 315. In the last case the court said: "The rule is, when applying the prin- ciples of the common law, or when construing statutes, that the telephone is to be considered a telegraph, unless express statutory provisions govern. So telephone companies, when establishing their lines, have the right of eminent domain, under the Constitution and laws, to the same extent as have telegraph companies." 5 Southwestern Telegraph & Telephone Co. v. Railroad Co. (Tex. 576 ELECTKIC COMPANIES. (Ch. 22 Likewise, statutes for assessing and taxing telegraph lines, and providing for service of process upon telegraph companies, in- clude telephone companies.* Inventor Bell, in his specifications for a patent, claimed to "transmit vocal or other sounds tele- graphically" ; ^ and the courts have accepted this scientific ex- pression as a proper basis for interpretation of the word "tele- graph" found in the old statutes so as to make it include tele- phones; with the single exception that the Supreme Court of the United States,' in applying the Post Roads Act in favor of telegraphs, declined to so construe it as to give the benefi thereof to telephone companies. Noting this unique excep- tion, the word "telegraph" will hereinafter be understood as including telephones. Common Carriers of Nezus and Intelligence. Telegraph companies, by most of the courts, have been de- clared not to be strictly common carriers, and therefore not subject to the doctrines of the common law on this subject." They have also been held by the Supreme Court of the United States not to be bailees.^" These decisions rest upon the Civ. App.) 52 S. W. lOG; CHESAPEAKE & P. TELEGRAPH CO. v. TELEGRAPH CO., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167. 6 Iowa Union Telegraph Co. v. Board, 67 Iowa, 250, 25 N. W. 155 Franlvlin v. Teleptione Co., 69 Iowa, 97, 28 N. W. 461. T THE TELEPHONE CASES, 126 U. S. 1, 8 Sup. Ct 778, 31 L. Ed. 8G3. 8 City of Richmond v. Telegraph Co., 174 U. S. 761, 19 Sup. Ct. 778, 43 L. Ed. 1162. 9 MARK V. TELEGRAPH CO., 85 Tenn. 529, 3 S. W. 496; Pinclvney v. Telegi'aph Co., 19 S. C. 71, 45 Am. Rep. 765; Western Union Telegraph Co. v. Munford, 87 Tenn. 190, 10 S. W. 318, 2 L. R. A. 601, 10 Am. St. Rep. 630; Same v. Mellon, 96 Tenn. 66, 33 S. W. 725; Grinnell v. Telegraph Co., 113 Mass. 299, 18 Am. Rep. 485; Kiley v. Telegi-aph Co., 109 N. Y. 231, 16 N. E. 75; Central Union Telephone Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035; Pepper V. Telegraph Co., 87 Tenn. 554, 11 S. W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 699; Jones v. Telegraph Co., 101 Tenn. 442, 47 S. W. 699. 10 Primrose v. Telegraph Co., 154 U. S. 1, 14 Sup. Ct 1098, 38 L. Ed. 883. § 199) TELEGRAPHS AND TELEPHONES. 577 ground that the things to be transmitted or carried by telegraph are not goods or chattels, and not subjects of insurance. Anc' yet it is universally conceded that these companies are char- tered and organized for the purpose of rendering public serv- ice; ^^ that they are common carriers of news and intelli- gence; ^^ that they must serve without discrimination ^^ every person who applies in conformity with their reasonable rules; and that their performance of these public functions may b( regulated and controlled by law for the public welfare.^'* Statutes accordingly have been sustained regulating the rates for messages, and prescribing time and limits for receiving and delivering the same.^^ 11 Croswell, Electricity, §§ 4-6. 12 Nebraslca Telephone Co. v. State, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113; Western Union Telegraph Co. v. Publishing Co., 44 Neb. 326, 62 N. W. 506, 27 L. R. A. 622, 48 Am. St. Rep. 729; State V. Telephone Co., 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404; Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; Western Union Telegraph Co. v. Allen, 66 Miss. 549, 6 South, 461; Same v. Texas, 105 U. S. 460, 26 L. Ed. 1067. 13 State V. Telephone Co., 61 S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870; People v. Telegraph Co., 19 Abb. N. C. 466; State ex rel. Payne v. Telephone Co., 93 Mo. App. 349, 67 S. W. 684; CHESAPEAKE & P. TELEGRAPH CO. v. TELEGRAPH CO., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167; State of Missouri v. Telephone Co. (C. C.) 23 Fed. 539; State of Delaware v. Telephone Co. (C. C.) 47 Fed. 633. And where a telephone company refuses a subscriber connection through its exchange, when he is properly entitled thereto, it may be forced to do so by mandamus. Mahan v. Telephone Co. (Mich.) 93 N. W. 629 ; Missouri v. Telephone Co. (C. C.) 23 Fed. 539. 14 Cannon v. Telegraph Co., 100 N. C. 300, 6 S. E. 731, 6 Am. St. Rep. 590; State v. Telephone Co., 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404. 15 Manning v. Chesapeake & Potomac Telephone Co., 26 Wash. Law Rep. 499; Leavell v. Telegraph Co., 110 N. C. 211, 21 S. E. 391, 27 L. R. A. 843, 47 Am. St. Rep. 708; Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E, 721. Ing.Corp. — 37 578 ELECTRIC COMPANIES. (Ch. 22 Federal Franchise. In 1866 the Congress passed an act conferring upon tele- graph companies organized under laws of any state the righi to construct, maintain, and operate lines of telegraph over all post roads of the United States, without discrimination ; and in all the states are to be found statutes conferring upon tele- graph companies the right to exercise the sovereign power of eminent domain. This power is also given in liberal measure in the territories of the United States by act of Congress. Tel- egraph companies, therefore, are subjected to public regulation, not only as performing public functions with property devoted to public uses, but also as exercising the power of the sovereign for that purpose ; they are accordingly classed as quasi public corporations.^* FEDERAI. CONTROIi. 200. The United States exercise a certain measure of protec- tion and regulation over telegrapli and telephone com- panies as instrumentalities of interstate commerce and beneficiaries of federal franchises over all post roads. The federal Constitution gives the Congress power to "regu- late commerce * * * among the several states." This is the basis of the Interstate Commerce Act and Commission, and has been construed to embrace not only trade, but intercourse, between the states.^ ^ Telegraphs, therefore, as well as rail- roads, have been brought under congressional authority. The first conspicuous exercise of this authority by Congress was an act passed June 16, 1860, "to facilitate communication between the Atlantic and Pacific states by electric telegraph." ^* Next 16 Ellis V. Telegraph Co., 13 Allen (Mass.) 226; PINCKNEY v. TELEGRAPH CO., 19 S. C. 71, 45 Am. Rep. 765; MARR v. TELE- GRAPH CO., 85 Tenn. 529, 3 S. W. 496. 17 Const. U. S. art. 1, § 8; Postal Telegraph & Cable Co. v. Charles- ton, 153 U. S. 692, 14 Sup. Ct. 1094, 38 L. Ed. 871; LELOUP v. PORT OF MOBILE, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 31L 18 12 Stat. 41, c. 137. § 200) FEDERAL CONTROL. 579 followed the Union Pacific Railroad legislation in 1862,^° whereby was subsidized not only railroad but telegraph lines across the plains, so as to connect the ^Mississippi Valley with the Pacific Slope. In 1866 Congress manifested its further interest in facilitating telegraphic communication among the states by opening all post roads for the use of telegraph com- panies,^" thereby enabling them to erect their poles and string their wires wherever the United States mail was carried by rail, vehicle, on horseback, or on foot, in city or country.-^ The only condition precedent to the exercise of this right was the filing with the Postmaster General of the company's writ- ten acceptance of all the restrictions and obligations required by law ; which were, in brief, that the lines should not obstruct navigation nor interfere with ordinary travel, and that the gov- ernment should have priority of right of mjcssage at a rate to be fixed annually by the Postmaster General.^^ The act ap- plied to any telegraph companies then or thereafter organized under the laws of any state, but did not assume to confer the power of eminent domain upon any of them. Its purpose was to confer a valuable franchise upon telegraph companies to pro- mote intercourse "among the several states." ^^ 18 12 Stat. 489, c. 120. 20 Rev. St. U. S. § 526.3 [U. S. Cornp. St. 1901, p. .3579]. 21 United States v. Telegraph Co., 160 U. S. 1, 16 Sup. Ct. 190. 40 L. Ed. 319; PENSACOLA TELEGRAPH CO. v. TELEGRAPH CO., 96 U. S. 1, 24 L. Ed. 708; City of St. Louis v. Telegrapli Co.. 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380; Mercantile Trust Co. V. Railway Co. (C. C.) 63 Fed. 513; Western Union Telegraph Co. V. Mayor (C. C.) 38 Fed. 552, 3 L. R. A. 449. 22 Chicago & A. Bridge Co. v. Telegraph Co., 36 Kan. 113, 12 Pac. -■'•35; City and County of San Francisco v. Telegraph Co., 96 Cal. 140, 31 Pac. 10, 17 L. R. A. 301. 23 PENSACOLA TELEGRAPH CO. v. TELEGRAPH CO.. 96 U. S. 1, 24 L. Ed. 708 ; City of St. Louis v. Telegraph Co., 148 U. S. 92, 13 Sup. Ct. 485. 37 L. Ed. 380; Postal Telegraph Co. v. Railroad Co. (C. C.) 94 Fed. 234. 580 ELECTRIC COMPANIES. (Ch. 22 Federal Agents. The acceptance of these franchises by telegraph companies has the effect of making them instrumentaUties of interstate commerce, and therefore subject to federal control and regula- tion, as well as to make them agents for the transaction of fed- eral business.^* It also renders void any exclusive contract between telegraph and railway companies, and invalidates any state laws which operate to unfairly impede telegraph compa- nies in the exercise of these federal franchises and duties; ^° and Congress may regulate the rates for interstate messages over any of these lines. ^^ They may also claim federal protec- tion against any hostile state legislation which will impair their lawful powers as federal agencies, or their utility as publi' servants in promoting interstate commerce.^' STATE CONTROL. 201. Tlie state, in the exercise of its inherent poivers of sov- ereignty over all persons and things inrithin its bound- aries, may regulate and control all telegraph and tele- phone companies operating ^vithin the limits of its territorial jurisdiction, ■whether under domestic or foreign charter, in all purely local affairs of a public nature. 24 Western Union Telegraph Co. v. Charleston (C. C.) 56 Fed. 419; Same v. Texas, 105 U. S. 460, 26 L. Ed. 1067. 2 8 City of Ogden v. Crossman, 17 Utah, 66, 53 Pac. 985; Southern Bell Telephone & Telegraph Co. v. D'Alemberte, 39 Fla. 25, 21 South. 570; Moore v. Eufaula, 97 Ala. 670, 11 South. 921; Western Union Telegraph Co. v. Attorney General, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790. 26 PENSACOLA TELEGRAPH CO. v. TELEGRAPH CO., 96 U. S. 1, 24 L. Ed. 708. 2 7 Western Union Telegraph Co. v. Charleston, 56 Fed. 419; Pierce V. Drew, 136 Mass. 75, 49 Am. Rep. 7; Western Union Telegraph Co. V. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 30 L. Ed. 1187; Same V. Alabama, 132 U. S. 472, 10 Sup. Ct. 161, 33 L. Ed. 409; Same v. Taggart, 163 U. S. 1, 16 Sup. Ct. 1054, 41 L. Ed. 49. ^ 201) STATE CONTROL. 581 The state confers upon telegraph companies the sovereign power of eminent domain as well as their charter franchises.^* Many messages are sent which do not cross state lines, and are of interest only to the residents of a single state. In sending such messages the company is performing a public duty, and is subject to public regulation; but not by Congress, for its power is confined to interstate commerce. The state, there- fore, in the exercise of its inherent powers of sovereignty, may control and regulate this public business just as it may that of railroads.^* It may regulate rates.^" It may compel equal facilities to be furnished to all applicants, without discrimina- tion, both for telegraph messages and telephone rentals. ^^ It may regulate the setting of poles and stringing of wires along the public highway,^^ and generally may exercise such fur- as Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530, S Sup. Ct. 961, 31 L. Ed. 790; Daily v. State, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578; Western Union Tele- graph Co. V. Telegraph Co. (C. C.) 19 Fed. 660; St. Louis & C. R. Co. V. Telegraph Co., 173 111. 508, 51 N. E. 382. 29 Western Union Telegraph Co. v. Tyler, 90 Va. 297, 18 S. E. 280, 44 Am. St. Rep. 910; City of St. Louis v. Western Union Telegraph Co., 149 U. S. 468, 13 Sup. Ct. 990, 37 L. Ed. 810; American Rapid Telephone Co. v. Hess, 125 N. Y. 641, 26 N. E. 919, 13 L. R. A. 454, 21 Am. St. Rep. 764; Irwin v. Telegraph Co., 37 La. Ann. 63. 30 Missouri V. Telephone Co. (C. C.) 23 Fed. 539; Nebraska Tele- phone Co. V. State, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113; Hockett V. State, 105 Ind. 2.50, 5 N. E. 178, 55 Am. Rep. 201; State V. Telegraph Co., 113 N. C. 213, 18 S. E. 389, 22 L. R. A. 570. 31 Nebraska Telephone Co. v. State, 55 Neb. 027, 76 N. W. 171, 45 L. R. A. 113; Gillis v. Telegraph Co., 01 Vt. 461, 17 Atl. 736, 4 L. R. A. 611, 15 Am. St. Rep. 917; De Rutte v. Telegraph Co., 1 Daly (N. Y.) 547; Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; Western Union Telegraph Co. v. Mellon, 100 Tenn. 429, 45 S. W. 443. 3 2 Nebraska Telephone Co. v. Telephone Co. (Neb.) 95 N. W. 18; CITY OF ST. LOUIS v. TELEGRAPH CO.. 149 U. S. 465, 13 Sup. Ct. 990, 37 L. Ed. 810; People v. Squire, 145 U. S. 175, 12 Sup. Ct. 880, 30 L. Ed. C66; Western Union Telegraph Co. v. Mayor, 38 Fed. 552, 3 L. R. A. 449. 582 ELECTRIC COMPANIES. (Ch. 22 ther regulations under the police power as may be necessary for the public safety ;^^ or it may confer the power of local regulation of local telegraphs, and especially of telephones, upon the municipal governments of the state.^* I.IMITATIONS. 202. The state control is limited by the federal Constitution as to matters over ivliich. (a) The exclusive potver is granted to Congress. (b) A potential faculty is conferred upon it. It is obvious from the two preceding sections that telegraph and telephone companies, as quasi public corporations receiv- ing franchises from and owing duties to both state and federal governments, are subjects of a double control. But it is not to be understood therefrom that both governments may exercise control in the same matter. The field and domain of each is separate. The jurisdiction of the United States is confined to interstate commerce and federal agency, while the state retains all the inherent powers of local sovereignty. It is clear, there- fore, that the state has no power over matters of federal .agency, which belong exclusively to the United States. Con- fusion has existed, however, and discordant decisions have been rendered in the state and federal courts over alleged inter- state commerce power. For nearly a hundred years the states exercised a large measure of control on this subject, because Congress had failed to exercise its potential faculty of regula- tion. Since the passage of the Interstate Commerce Act, and the assumption thereby of this important faculty by Congress, 33 New England Telephone & Telegraph Co. v. Terminal Co., 182 Mass. 397, 65 N. E. 835; City of Houston v. Moore, 5 Wheat. (U. S.) 49, 5 L. Ed. 19; Grand Rapids E. L. & P. Co. v. Gas Co. (C. C.) 33 Fed. 659; O'Connor v. Pittsburgh, 18 Pa. 189. 34 Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 66 N. W. 624, 41 L. R. A. 481, 53 Am. St. Rep. 557; City of Eureka v. Wilson, 15 Utah, 58, 48 Pac. 41; Sinton v. Ashbury, 41 Cal. 425. § 203) EMINENT DOMAIN. 583 all previous state legislation upon that subject has been de- clared superseded,^ ^ and subsequent legislation has been held invalid.^® Illustrations of this are to be found in decisions de- claring void a statute authorizing an injunction against a tele- graph corporation of another state whose taxes are in arrears from pursuing, its business within the state until the taxes are paid; ^^ a statute taxing a federal franchise; ^* also one tax- ing interstate telegraph messages; ^^ and statutes taxing gov- ernment messages.*" In short, all state statutes which will by their enforcement constitute a material interference with or regulation of interstate commerce or federal power are in- valid." EMINENT DOMAIN. 203. The poxrer of eininent domain exercised by electric com- panies to locate and erect telegraphs and telephones emanates from the state, and is directed by state laurs prescribing proceeding and just compensation. The Supreme Court of the United States has declared that the Congress, in the exercise of its constitutional power to 36 Gulf, C. & S. F. Ry. Co. v. Hefley, 158 U. S. 114, 15 Sup. Ct. 802, 39 L. Ed. 910. 36 Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. 958, 34 L. Ed. 394; Kelley v. Rhoads, 188 U. S. 1, 23 Sup. Ct. 259, 47 L. Ed. 359. 87 Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790. 3 8 City and County of San Francisco v. Telegraph Co., 96 Cal. 140, 31 Pac. 10, 17 L. R. A. 301. 3 LELOUP V. PORT OF MOBILE, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311; Ratterman v. Telegraph Co., 127 U. S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229; Western Union Telegraph Co. v. Alabama, 132 U. S. 472, 10 Sup. Ct. 161, 33 L. Ed. 409. *o Western Union Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067; Western Union Telegraph Co. v. Fremont, 39 Neb. 692, 58 N. W. 415, 26 L. R. A. 698. 41 Western Union Telegraph Co. v. James, 162 U. S. 650, 16'Sup. Ct. 934, 40 L. Ed. 1105; Same v. Mayor (C. C.) 38 Fed. 552, 3 L. K. A. 449. 584 ELECTRIC COMPANIES. (Ch. 22 regulate commerce among the states, may grant charters of in- corporation to companies about to engage in interstate com- merce ; *^ and also may exercise the power of eminent domain in respect of lands in any territory or state, when necessary to the exercise of the power of regulating interstate commerce; *" and has sustained the validity of an act authorizing the taking of private lands in the states of New York and New Jersey for the purpose of erecting a bridge across the North river.** But this potential faculty has rarely, if ever, been exercised within the states for telegraph companies. It has been ruled by the Supreme Court of the United States that the Post Roads Act does not confer the power of eminent domain upon telegraph companies,*^ but that those intending the exercise of that power must rely upon the state statutes to obtain their rights of way through the states, whether from private persons or from other corporations. Most of the states have passed laws authorizing telegraph companies to exercise this power in condemning rights of way to their use upon the payment of just compensa- tion. Just Compensation. The matter of compensation to various claimants, therefore, has undergone much judicial consideration and produced much discord of decision, especially with regard to the rights of own- ers of property abutting on the highway. The general rules upon this subject applicable to various claimants may be sum- marized as follows : A telegraph company occupies the public highway in virtue of its public franchise, without exercising the power of eminent domain or paying the just compensation 42 California v. Railroad Co., 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150. 43 Clierokee Nation v. Railway Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295. 44 Luxton V. Bridge Co., 153 U. S. 525, 14 Sup. Ct. 891, 38 L. Ed. 808. 45 Pensacola Telegraph Co, v. Telegraph Co., 96 U. S. 1, 24 L. Ed. 708. § 203) EMINENT DOMAIN. 585 provided by Constitution for those whose private property is taken for public use.*® Such companies may erect their poles and string their wires along a railroad right of way under the federal franchise given by the Post Roads Act, but must make just compensation to the railway company for the value of the right thus taken.*'' Abutting Owners. With regard to abutting owners, the lines of a telegraph or telephone company "are on the same footing as a steam rail- road. They become no part of the equipment of a public high- way, but are entirely foreign to its use. Where the fee of the street is in the abutting owner, he is clearly entitled to compen- *6 Croswell, Electricity, § 61. 47 Postal Telegraph Cable Co. v. Railroad Co., 30 Ind. App. 654, 66 N. E. 919; Mobile & O. R. Co. v. Cable Co., 101 Tenn. 62, 46 S. W. 571, 41 L. R. A. 403; Atlantic & P. Telegraph Co. v. Railroad Co., 6 Biss. (U. S.) 158, Fed. Cas. No. 632; Postal Telegraph Cable Co. v. Steamship Co., 49 La. Ann. 58, 21 South. 183. See Western Union Telegraph Co. v. Railroad Co. (C. C.) 120 Fed. 362; Id., 123 Fed. 33, 59 C. C. A. 113, where, under a Pennsylvania statute giving authority to erect and construct devices, works, fix- tures, and structures along and across any of the roads within the state, upon the termination of a lease by a telegraph company upon a railroad right of way the superior rights of the railroad company were upheld, and the court decided that property devoted to one public use cannot be taken by another without express legislative authority, expressed in clear terms or by necessary implication. Many of the states have passed statutes containing provisions sim- ilar to those contained in the post roads act. South Carolina & G. R. Co. V. Telegi-aph Co., 65 S. C. 459, 43 S. E. 970; Southwestern Telegraph Co. v. Railway Co., 109 La. 892. 33 South. 910; St Louis & S. F. R. Co. v. Telegraph Co., 121 Fed. 276, 58 C. C. A. 198; Postal Telegraph Cable Co. v. Railroad Co.. 96 Va. 661, 32 S. E. 468. See, also. Southwestern Telegraph & Telephone Co. v. Railway Co. (Tex. Civ. App.) 52 S. W. 106. The general rule is that land already devoted to another public use cannot be taken under general laws* where the effect would be to extinguish a franchise. Northwestern Telephone Exch. Co. v. Railway Co., 76 Minn. 334, 79 N. W. 315. 586 ELECTRIC COMPANIES. (Ch. 22 sation for the additional burden placed upon his land. When the fee is in the public, the abutting owner may recover for any interference with his rights in the street." *^ Whenever it is necessary to run the line through private property, consent must be obtained from the owner, or the usual proceeding of con- demnation be pursued, wherein compensation is included in or- der to give it validity.** Until compensation is made in such cases the erections are unlawful.^" Abutters may obtain their compensation by proceeding under the local law. MUNICIPAL CONTROL. 204. Mumcipalities, under antlioTity conferred by the state, may pass and enforce all reasonable ordinances affix- ing conditions to entering tbe city, regulating the set- ting of poles and stringing of ^vires, and protecting tbe safety of persons and property in tbe municipal limits. The power of municipal corporations over electric compa- nies is only a portion of the power of the state, and exists in such measure as the legislature in its discretion has granted. 48 Lewis, Em. Dom. § 131. The construction and maintenance of a telegraph line on the high- way is a new and additional burden on the fee, to which it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation. Union Electric Telephone & Telegraph Co. v. Applequist, 104 111. App. 517; Goddard v. Railway Co., 104 111. App. 526; Id., 202 111. 302, 66 N. E. 1060; Bronson v. Telegraph Co. (Neb.) 93 N. W. 201, 60 L. R. A. 426; Andrews v. Telephone Co., 36 Misc. Rep. 23, 72 N. Y. Supp. 50. 49 American Telegraph & Telephone Co. v. Pearce, 71 Md. 535, 18 Atl. 910, 7 L. R. A. 200. 50 Gray v. State Telephone Co., 41 Misc. Rep. 108, 83 N. Y. Supp. 920; Bronson v. Telegraph Co. (Neb.) 93 N. W. 201, 60 L. R. A. 426; Postal Telegraph-Cable Co. v. Eaton, 170 111. 513, 49 N. E. 365, 39 L. R. A. 722. 62 Am. St. Rep. 390. And an injunction will lie to restrain an unauthorized exercise of the power of eminent domain. St. Louis & S. F. R. Co. v. Telegraph Co., 121 Fed. 276, '58 C. C. A. 198. I § 204) MUNICIPAL CONTROL. 587 Usually, municipal corporations have full power over their streets, and also the police power to their boundaries. ^^ In most states, too, the statutes require municipal consent for any telephone company to erect its poles or string its wires along the street.^^ This consent it may refuse, or give freely or upon such terms or conditions as it may see fit to impose.^* And after the construction of the line it may pass such reasonable ordinances for its maintenance and regulation as are necessary for the safety and convenience of its citizens.^* It may ap- point the lines or limits for setting poles; ^^ forbid the stringing of wires over houses ; ^® and even require them to be placed un- der ground.^'^ But it does not have the power to prescribe 61 Ante, §§ 117, 129. 5 2 Ci-oswell, Electricity, § 144. In Kentucky this is a constitutional provision. Const. Ky. § 163. See, also, East Tennessee Telephone Co. v. Telephone Co., 24 Ky. Law Rep. 2358, 74 S. W. 218. A Nebraska statute giving telegraph and telephone companies a right of way along public roads of the state was held not to apply to streets and alleys of a city, and the unauthorized use of such thoroughfares for such purpose a public nuisance. Nebraska Tele- phone Co. V. Telephone Co. (Neb.) 95 N. W. 18. 5 3 Western Union Telegraph Co. v. Wakefield (Neb.) 95 N. W. 659; Mahan v. Telephone Co. (Mich.) 93 N. W. 629; Michigan Tele- phone Co. v. Charlotte City (C. C.) 93 'Fed. 11. 54 Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; Nebraska Telephone Co. v. Light Co., 27 Neb. 284, 43 N. W. 126. But a telephone franchise granted by a city, which is to run under state law for a definite period, may not be nullified dm-ing that term by the city, in the absence of any provision therein reserving such right. Old Colony Trust Co. v. Wichita (C. C) 123 Fed. 762. 6 5 Hutchinson v. Belmar, 61 N, J. Law, 443, 39 Atl. 643. 66 Electric Imp. Co. v. San Francisco (C. C.) 45 Fed. 593, 13 L. R. A. 131. 57 City of Geneva v. Telephone Co., 30 Misc. Rep. 236. 62 N. T. vSupp. 172; Western Union Telegraph Co. v. New York (C. C.) 38 Fed. 552. 3 L. R. A. 449; Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; People v. Squire, 145 U. S. 175, 12 Sup. Ct. 880, 30 L. Ed. 666; State ex rel. National Subway Co. v. St Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113. See Chtuuborlain v. Telephone Co.. 119 Iowa, 619, '.)■■', X. w. r)Ofi. 588 ELECTRIC COMPANIES. (Ch. 22 rates by ordinance, though it may fix them in Ucenses granted for entering the city.^* A subsequent ordinance of regula- tion must not impair the contract right of the company,^** un- less required by the public safety or welfare ; ®° but the police power has been held to extend not only to the supervision of the maintenance and operation of the line, but also to requiring the removal of poles from one street to another.*^ CONSTRUCTION AND OPERATION. 205. Telegrapli and teleplione lines are al^irays to be con- structed, maintained, and operated T^itli reference to their federal and state franchises and municipal li- censes, and the primary and dominant use of public passage on the highviray. Public passage is the primary and dominant use of the high- way, whether for travel or transportation, on foot or horse- back, by vehicle or by rail.®^ To this supreme use of the high- way all other public uses are subordinate, even telegraphs and telephones.^^ Priority of right or occupation of a street or 08 City of St. Lonis v. Telephone Co., 96 Mo. G23, 10 S. W. 197, 2 L. R. A, 278, 9 Am. St. Rep. 370. But see State v. Telephone Co., 14 Ohio Cir. Ct. R. 273, 7 O. C. D. 536. 59 Louisville Trust "Co. v. Cincinnati, 76 Fed. 296, 22 C. C. A. 334; Levis V. Newton, 75 Fed. 884; Horner v. Eaton Rapids, 122 Mich. 117, 80 N. W. 1012. 60 Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; Stone v. Mississippi, 101 U. S. 817, 25 L. Ed. 1079. 61 Michigan Teleplione Co. v. Charlotte, 93 Fed. 11. 82 St. Louis & S. F. R. Co. v. Telegraph Co., 121 Fed. 276, 58 C. C. A. 198; Cleveland. C, C. & St. L. Ry. Co. v. Cable Co., 68 Ohio St. 306, 67 N. E. 890, 02 L. R. A. 941; Cumberland Telephone & Tele- graph Co. V. Railroad Co., 42 Fed. 273, 12 L. R. A. 544; HUDSON RIVER TEL. CO. v. RAILWAY CO., 135 N. Y. 393, 32 N. B. 148, 17 L. R. A. 674, 31 Am. St, Rep. 838; Cincinnati Inclined Plane Ry. Co. V. Association, 48 Ohio St. 390, 27 N. E. 890, 12 L. R. A. 534, 29 Am. St. Rep. 559. 6 3 Cumberland Telegraph & Telephone Co. v. Railway Co.,. 93 Teun. 492. 29 S. W. 104. 27 L. R. A. 236: Donovan v. Allert, 11 N. D. 289, § 205) CONSTRUCTION AND OPERATION. 589^ road by them will not give them superiority.'* No electric company for any purpose can claim a monopoly in the public highway, which is for all proper public uses. Electric com- panies may not, therefore, exercise their powers ruthlessly, but must act reasonably with due regard to the inferior rights of other companies; ®^ and all of them in the construction, main- tenance, and operation of their lines are subject to the police power of the sovereign to be exercised for the public welfare or safety.*® Complex Character. Electric companies are subject to many conditions, political and contractual, in the exercise of their rights, and dependent upon many public sources for their franchises and privileges. The state creates them and gives them the power of eminent domain. The federal government confers upon telegraph com- panies the franchise of the Post Roads. The municipality de- termines the conditions upon which telephone companies es- pecially may construct, maintain, and operate their lines ; and, after providing for all these things by contract, still possesses power to change these terms and conditions when demanded by the public welfare or safety.®^ Illustrations. Conflict between these companies and the public and with other companies has been prolific of litigation, and the many 91 N. W. 441, 58 L. R. A. 775, 9o Am. St. Rep. 720; Cincinnati Inclined Plane Ry. Co. v. Association, supra. 6 4 East Tennessee Telephone Co. v. Railroad Co. (Tenn.) 3 Am. El. Cas. 400. 65 Western Union Telegraph Co. v. Electric Co., 76 Fed. 178; Cum- berland Telegraph &, Telephone Co. v. Railway Co., 93 Tenn. 4U2, 29 S. W. 104, 27 L. R. A. 236; HUDSON RIVER TELEPHONE CO. V. RAILWAY CO., 135 N. Y. 393, 32 N. E. 148, 17 L. R. A. 674, 31 Am. St. Rep. 838. 6 People V. Squire, 145 U. S. 175, 12 Sup. Ct. 880, 36 L. Ed. 660; We-^^trn Union Telegraph Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 30 L. Ed. 1187. 6 7 Ante, note 54. 590 ELECTRIC COMPANIES. (Ch. 22 decisions rendered have been for the most part in conformity with the doctrines above stated. Among other things, it has been ruled that an electric company is a trespasser against an abutting owner when it constructs a line on a street not desig- nated ; ^' when it enters private property, and cuts or trims trees thereon ; ®^ that a municipality may grant to one company the right to use the poles of another company; '" that the li- cense granted by a municipality is always with an implied reser- vation of power to require such changes by the company as will render the streets safer and more convenient for the pub- lic;''^ that a company may be confined to one side of the street; "^^ and that they may cut or trim trees on or over the street so much as may be necessary for the proper construction and operation of their line.^* 68 Canastota Knife Co. v. Tramway Co., G9 Conn. 14G, 36 Atl. 1107. 69 Southwestern Telegraph & Telephone Co. v. Brauham (Tex.) 74 S. W. 949; Erie Telegraph & Telephone Co. v. Kennedy, SO Tex. 71, 15 S. W. 704; Van Sielen v. Electric Light Co., 168 N. Y. 650, 61 N. E. 1135; Metropolitan Trust Co. v. Power Co., 35 Misc. Rep. 467, 71 N. Y. Supp. 1055; Memphis Bell Telephone Co. v. Hunt, 16 Lea (Tenn.) 456, 1 S. W. 159, 57 Am. Rep. 237. TO Bergin v. Telephone Co., 70 Conn. 54, 38 Atl. 888, 39 L. R. A. 192 ; Citizens' Electric Light & Power Co. v. Sands, 95 Mich. 551, 55 N. W. 452, 20 L. R. A. 411. 71 Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93. 72 Consolidated Electric Light Co. v. Gas Co., 94 Ala. 372, 10 South. 440. 7 3 Daily v. State, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724. 46 Am. St. Rep. 578; Clay v. Cable Co., 70 Miss. 406. 11 South. mS; Bradley v. Telephone Co., 66 Conn. 559, 34 Atl. 499, 32 L. R. A. 280 ; Southern Bell Telephone & Telegraph Co. v. Constantine, 61 Fed. 61, 9 C. C. A. 359. But see Bronson v. Tel. Co. (Neb.) 93 N. W. 201, 60 L. R. A. 426. § 206) ELECTKIO LIGHT COMPANIES. 591 ELECTRIC LIGHT COMPANIES. 206. Companies chartered to supply electric ligbt and povrer to urban comiiiunities are quasi public corporations, subject to public regula.tion, as employing dangerous energy ia fumi^Iiing public utilities, and enjoying the po-Krer of eiainent domain. The lighting- of streets of a city has been held to be a proper municipal duty; ^* and the lighting of suburban highways has been declared to be a public function. '^^ So, also, the furnish- ing of light to the citizens of an urban community.'^® But all these things are public uses ; and electric corporations organ- ized for the purpose of supplying light to a municipality, its citi- zens, or suburbs, are quasi public corporations," and subject to public regulation. On the contrary, a municipal corpora- tion which maintains and operates an electric plant to supply light for its streets and citizens is a quasi private corporation.''* The use as well as the purpose of electric light companies is similar to that of gaslight companies, and in most particulars the same rules of law are applicable. New Servitude. Whether the erection of poles and the stringing of wires by electric light companies constitutes an additional burden up- on abutting owners is not agreed upon by the courts. The tendency of the cases is, however, towards the doctrine that 74 Levis V. Newton, 75 Fed. 884; Halso.v v. Eail-u-ay Co., 47 N. J. Eq. 380, 20 Atl. 859; Harlem Gaslight Co. v. Now York, 33 N. Y. 327. Tsralmer v. Electric Co., 158 N. Y. 231, 52 N. E. 10'.)2, 43 L. R. A. G72. 7 6 Levis V. Newton, 75 Fed. 884. 77 State ex rel. St. Louis Underground Service Co. v. Murpby, 134 Mo. 548, 34 S. W. 51, 34 L. 11. A. 3U0, 5G Am. St. Rep. 515; Levis v. Newton, supra. 7 8 BAILEY V. NEW YORK, 3 Hill (N. Y.) 531, 38 Am. Dec. G69; P.ullmaster v. St. Joseph, 70 Mo. App. 60; Merrimack River Sav. Bank v. Lowell, 152 Mass. 556, 20 N. E. 97, 10 L. R. A. 122. 592 ELECTRIC COMPANIES. (Ch. 22 an additional servitude is imposed on rural highways, but not on suburban streets; ^® except when the abutter's easement of access is materially impaired ; ®° or when the business of the company is confined to the lighting of private houses and build- ings.^^ It has also been held that electric light companies hold inferior privileges and rights to street railway and telephone companies, and must therefore exercise them in such way as not to interfere with the superior rights of such companies ; *^ and in cases of contest between two electric light companies in the same city superior right has been adjudged in favor of the first occupant where it has equal franchises; *^ and against the first occupant where the newcomer has a contract with the city for lighting the streets.^* Discrimination Unlazvful. Because of the public nature of these utilities, it is well set- tled that an electric light company cannot discriminate between citizens in the matter of light or accommodation,®^ but must furnish all applicants with equal privileges at the same rates, and at reasonable prices.'® 7 9 Tiffany v. Illuminating Co., 67 How. Prac. (N. Y.) 73; Halsey V. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859; Palmer v. Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672; Haverford El. Light Co. V. Hart (Pa.) 4 Am. El. Cas. 148. 80 Tiffany v. Illuminating Co., supra. 81 Johnson v. Electric Co., 54 Hun, 4G9, 7 N. Y. Supp. 716; Callen V. Electric Light Co., 66 Ohio St. 166, 64 N. E. 141, 58 L. R. A. 782. 82 Paris Electric Light & Ry. Co. v. Telephone Co. (Tex.) 27 S. W. 902. 83 Consolidated Electric Light Co. v. Gas Co., 94 Ala. 372, 10 South. 440. 84 Terre Haute Electric Light & Power Co. v. Power Co. (Ind.) 6 Am. El. Cas. 193. 85 Cincinnati, II. & D. R. Co. v. Bowling Green, 57 Ohio St. 330. 49 N. E. 121, 41 L. R, A. 422; Jones v. Electric Co., 158 N. Y. 678, 32 N. E. 1124. 86 Cincinnati, II. & D. R. Co. v. Bowling Green, supra; Gould v. Ilhiniinatiug Co., 20 Misc. Rep. 241, 60 N. Y. Supp. 559. II § 207) WATER AND GAS COMPANIES. 593 CHAPTER xxrn. WATER AND GAS COMPANIES. 207. Quasi Public Character. 208. Franchise Obtained Where. 209. Subject to Municipal Police Regulations. 210. Regulation of Prices by Municipality — Limitations. 211. Reasonable Regulation of Rates— Basis of. 212. Judicial Investigation, 213. Reasonable Regulations Prescribed by Companies. 214. Municipal Ownership and Operation — Liability. QUASI PUBLIC CHARACTER. 207. Companies chartered and operated to supply water or gas for tlie use of urban communities perform an im- portant public function, and are quasi public corpora- tions. The supreme function of government is the preservation of public order. The sovereign faculty by which this is effected is the police power. Its chief office is the prevention and sup- pression of crime, which loves the darkness. The most con- stant and persistent of police agencies is light. The artificial lighting of the streets of a city is therefore a public use of transcendent value to society. For nearly a century this has been accomplished by the use of gas ; and authority to erect gasworks to light the streets and supply the citizens with gas for illumination is usually found in the municipal charters of the United States. This agency has in recent years been in large measure superseded by electricity ; but gas companies still continue to supply gas for light to the citizens of many urban communities, and are recognized as quasi public corpora- tions/ and property may be taken by condemnation procecd- 1 Owensboro Gaslight Co. v. Hildebrand (Ky.) 42 S. W. .351; State V. Hamilton, 47 Ohio St, 52, 23 N. E. 935; Bloomlicld & R. Natural ING.CORP.— 38 594 WATER AND GAS COMPANIES. (Ch. 23 ings under the power of eminent domain for the necessary uses of gas companies.* Water Companies. Water is the oldest of all the recognized public utilities. It was regarded as a matter of prime necessity in the ancient cities of the Orient, and before the Christian Era the aqueducts of Rome, whereby the citizens of the Eternal City were sup- plied with an abundance of pure water, aggregated more than 350 miles in length. The larger cities of America control their own water supply through a branch of the municipal govern- ment; but a majority of the lesser municipalities of the United States are supplied with water by private companies under contract with the municipalities. These companies are gen- erally regarded of such high public use as to be invested by the state with the sovereign power of eminent domain, whereby they may condemn lands, springs, and water courses for the public use ; ^ and claims of abutting owners on streets for ad- ditional burdens from their pipes and mains have generally Gas Co. V. Richardson, 63 Barb. (N. Y.) 437; Lewis, Em. Dom. § 173. 2 City of RiishTille v. Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321; Harlem Gaslight Co. v. iSIayor, 33 N. Y. 327; City of In- dianapolis V. Coke Co., 66 Ind. 396; Bloomfleld & R. Natural Gas Co. V. Richardson, supra; Kincaid v. Gas Co., 124 lud. 577, 24 N. E. 1066, 8 L. R. A. 602, 19 Am. St. Rep. 113; Commonwealth v. Gaslight Co., 12 Allen (Mass.) 75; Brunswick Gas Light Co. v. Gas Light Co., 85 Me. 532. 27 Atl. 525, 35 Am. St. Rep. 385; Providence Gas Co. v. Thurber, 2 R. I. 15, 55 Am. Dec. 621. 3 Kennebec Water Dist. v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856. A public use of water must be for the general public, or some portion of it, and not a use by or for particular individuals or societies. Hildreth v. Water Co., 139 Cal. 22, 72 Pac. 395 ; Spring Valley Water Works v. Water Works, 64 Cal. 123, 28 Pac. 447; City of Rome v. Cabot, 28 Ga. 50; Hale v. Houghton, 8 Mich. 458; MINERS' DITCH CO. v. ZELLERBACH, 37 Cal. 543, 99 Am. Dec. 300; City of New York v. Bailey, 2 Denio (N. Y.) 433; Tyler v. Hud- sou, 147 Mass. 609, 18 N. E. 582. § 208) FRANCHISE OBTAINED WHERE. ^95 been disallowed by the courts.* Municipalities also, as we have seen,° for the purpose of obtaining water supply, have been given this power beyond municipal boundaries. Water com- panies, therefore, are recognized in law as quasi public corpora- tions." FRANCmSE OBTAINED WHERE. 208. Gas and TO'ater companies, like electric conipaniss, ob- tain their franchises from the state, but subject to municipal license. Gas and water companies, like all other private corporations, obtain their powers through legislative grant, either by special act or under general statutes. The extent of their franchises therefore depends upon the proper construction of the statute conferring the powers. In some instances they have been clothed not only with the ordinary powers of a private cor- * Crooke v. Water Works Co., 29 Huu (N. Y.) 24.5; West v. Ban- croft, 32 Vt. 371; City of Boston v. Richardson, 13 Allen (Mass.) 14(j; Lewis, Em. Dom. §§ 128, 129. 8 Ante, § 117; Hepburn v. Jersey City, 67 N. J. Law, 686, 52 Atl. 1132; West Boylston Mfg. Co. v. Water Board, 183 Mass. 267, 67 N. E. 241. « City of Tampa v. Waterworks Co. (Fla.) 34 South. 631; Charles- ton Natural Gas Co. v. Lowe, 52 W. Ya. 662, 44 S. E. 410; Bloom- fleld & R. Natural Gas Co. v. Richardson, 63 Barb. (N. Y.) 437. A water company organized by statute is a quasi public corporation entitled to charge reasonable rates for its services, and no more. Kennebec Water Dist. v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856. The fact that water companies are called private corporations does not exempt them from legislative or municipal control. Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, 59 C. C. A. 236; City Water Co. v. State (Tex.) 33 S. W. 250; Smith v. Nash- ville, 88 Tenn. 464, 12 S. W. 924, 7 L. R. A. 469; CRUMLEY v. WATER CO., 99 Tenn. 420, 41 S. W. 1058 ; San Diego Water Co. v. San Diego, 59 Cal. 517; Lowell v. Boston, 111 Mass. 454, 15 Am. Rop. 39; Opinion of Justices, 150 Mass. 592, 24 N. B. 1084, 8 L. R. A. 487. 595 WATER AND GAS COMPANIES. (Ch. 23 poration, and also the power of eminent domain to take private property on just compensation; but water companies have been held to have the power of appropriating even streets and public parks for reservoir purposes under legislative grant.^ Legislative Pozver Absolute. The legislature, in the exercise of its plenary power, may confer these rights absolutely upon such corporations, so that they may build and operate their plants without municipal con- sent.* But because of the superior knowledge possessed by local governments as to the wants of the community and the necessary details of supplying them, this absolute power is rarely exercised; and gas and water companies, like elec- tric companies, are usually required to obtain municipal license to build and operate within municipal boundaries.' Bnumeration of Pozvers. The powers usually conferred upon gas and water companies in order that they may efficiently carry out the objects of their incorporation, are to introduce water or gas into any town, city, or village named in their articles of incorporation, and where their corporation is located ; and to lay pipes in and through the streets, avenues, lanes, alleys, or squares thereof ; and enter on any lands, as far as need be, for these purposes and for the 7 Spring Valley Water Works v. Drinkhouse. 92 Cal. 528, 28 Pac. 681; West v. Bancroft, 32 Vt. 307; Webb v. Mayor, G4 How. Prac. (N. Y.) 10. But see City of Morrison v. Hinkson, 87 111. 587, 29 Am. Rep. 77. 8 Lawrence v. Hennessy, 165 Mo. 659, 65 S. W. 717; David v. Committee, 14 Or. 98, 12 Pac. 174; HOPE v. DEADEKICK, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; NICHOL v. NASHVILLE, 9 Hmiiph. (Tenn.) 252; Beers v. Arkansas, 20 How. (U. S.) 527, 15 L. Ed. 991; MUNN v. PEOPLE, 69 III. 80; Same v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Jamieson v. Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652 ; Calder v. Bull, 3 Dall. (U. S.) 386, 1 L. Ed. 648 ; Ben- son V. New York, 10 Barb. (N. Y.) 223; Town of Goshen v. Stoning- ton, 4 Conn. 209, 10 Am. Dec. 121. » Borough of Madison v. Gaslight Co. (N. J.) 54 Atl. 439; 2 Dill. Mun. Corp. §§ 597, 657, 691, 698. § 209) SUBJECT TO MUNICIPAL POLICE REGULATIONS. 597 election of the necessary plant; and to lay or construct any pipes, conduits, reservoirs, or other works or machinery neces- sary or proper and authorized for such purposes upon any lands or property entered upon, purchased, taken, or held. They may also enter on any lands, streets, highways, lanes, alleys, and public squares through which they may deem it proper to carry their utility, and there lay pipes, etc., leaving the premises as nearly as may be in the same condition as before.^" SUBJECT TO MUNICIPAL POLICE REGULATIONS. 209. The municipality generally g^rants its license to build and operate by contract w^ith the company; but this right is exercised subject to the police povrer of the municipality to regulate and control operations. The details of construction and operation of gas and water plants are commonly fixed by contract between the municipality and the company, wherein is conceded to the company the right to lay its pipes and mains along the streets of the city, and supply gas or water for public or private uses within its boundaries. Sometimes this contract assumes to give to the company this right exclusive of all other companies. In some cases such a contract has been held void as constituting an un- lawful monopoly; ^^ but the Supreme Court of the United States in leading cases ^^ has held such a contract between the municipality and the company to be valid, and within the protection of the contract clause of the federal Constitution. In such cases, of course, a subsequent concession to another company of a like right to build and operate within the mu- 10 Sec. for example, How. Ann. St. Mich. § 3115. n CITY OF BRE.NHAM v. WATER CO., 67 Tex. 542, 4 S. W. 143; Norwich Gaslight Co. v. Gas Co., 25 Conn. 19. Cf. Citizens' Water Co. V. Hydraulic Co., 55 Conn. 1, 10 Atl. 170. Contra, Hurley Wa- ter Co. V. Vaughn. 115 Wis. 470, 91 N. W. 971. 12 NEW ORLEANS GASLIGHT CO. v. MANUFACTURING CO., 115 U. S. 650, Sup. Ct. 2.'52, 29 L. Ed. 510; New Orleans Water Works Co. V. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, 29 L. Ed. 525 598 WATER AND GAS COMTANIES. (Ch. 23 nicipal limits would be void; ^^ but, since the municipality can- not barter away the sovereign duty and police power conferred upon it, the operations of the company under such contract are always subject to reasonable regulation by subsequent as well as antecedent municipal ordinances. ^"^ Monopolistic Intent and Authority Must Appear. No presumption will be indulged by courts in favor of a claim for a monopoly. ^° Both the intention and the authority of the municipality to make a contract conceding the exclusive right to furnish gas to the citizens must plainly appear, or the claim will be denied.^® A contract giving a company the right to lay its mains in the streets and supply the citizens with gas or water for twenty years will not prevent the municipality from making a like concession to another water, gas, or elec- tric light company, or constructing its own plant.^'^ It has 13 So held in gas case In last note, and in water case concession of right by city to private person to supply himself was declared void. 14 Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, 59 C. C. A. 236; NEW ORLEANS GASLIGHT 00. v. MANUFACTURING CO.. supra; National Water Works Co. v. Kansas City, 28 Fed. 921; Stein v. Water Supply Co., 34 Fed. 145. An act providing that a consumer shall be supplied with a gas meter supplied by the gas company without charge, to be inspected by othcials designated for that purpose, is a valid pohce regula- tion. Buffalo V. Buffalo Gas Co., 81 App. Div, 505, 80 N. Y. Supp. 1093. 15 Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. 650; State V. Coke Co., 18 Ohio St. 2G2; City of Indianapolis v. Ooke Co., 66 Ind. 396. 16 Cedar Rapids Water Co. v. Cedar Rapids, 117 Iowa, 2.50, 90 N. W. 74G; People v. Bowen, 30 Barb. (N. Y.) 24; Saginaw Gaslight Co. V. Saginaw, 28 Fed. 529; City of Chicago v. Rumpff, 45 111. 90, 92 Am. Dec. 196; Tuckahoe Canal Co. v. Railroad Co., 11 Leigh (Va.) 42, 36 Am. Dec. 374; Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249; Lehigh Valley R. Go. v. Newark, 44 N. J. Law, 323. 17 City of Helena v. Waterworks Co., 122 Fed. 1, 58 C. C. A. 381; Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. 650; § 209) SUBJECT TO MUNICIPAL POLICE REGULATIONS. 599 been held that water and gas companies may be compelled by the municipality to lower their pipes so as to adapt them to a change of street grade; ^^ and to make such other changes in location as public convenience or safety require.^" Such corporations, being chartered to supply public utilities, and possessing public powers, may be required by municipal ordi- nance to supply every building on the streets on which their mains are laid, upon compliance by the applicant with the rea- sonable regulations of the company.^" And since every quasi public corporation must serve the public without discrimina- tion, any private citizen would probably have this right, in the absence of any statute or ordinance requiring the services, though the right was denied in New Jersey in an old case.^^ Skaneateles Water Works Co. v. Skaneateles, 184 U. S. 354. 22 Sup. Ct 400, 46 L. Ed. 585 ; Joplin v. Light Co., 191 U. S. 150, 24 Sup. Ct. 43, 48 L. Ed. 127. 18 Ante, § 111; also City of Quiney v. Bull, 106 111. 337. 19 lu re Deering, 93 N. Y. 361; National Water Works Co. v. Kansas City, 28 Fed. 921; Kiskiminetas Tp. v. Gas Co., 14 Pa. Super. Ot. 67. 2 Charleston Natural Gas Co. v. Lowe, 52 W. Va. 662, 44 S. E. 410; City of Mobile v. Supply Co., 130 Ala. 379, 30 South. 445; Peo- ple V. Gaslight Co., 45 Barb. (N. Y.) 136; New Orleans Gaslight & Banking Co. v. Paulding, 12 Rob. (La.) 378; Lloyd v. Gas Light Co.. 1 Mackey (D. C.) 331; Shepard v. Gas Light Co., 15 Wis. 318. 82 Am. Dec. 679; McCrary v. Beaudry, 67 Cal. 120, 7 Pac. 264; Wil- liams V. Gas Co., 52 Mich. 499, 18 N. W. 236, 50 Am. Rep. 266. But where a city determined that public welfare was subserved by removing water mains and fire hydrants from a place where there was no demand for fire protection, and but one consumer, he was held not entitled to an injunction to restrain the removal, even though his property was thereby rendered valueless. Asher v. Power Co., 66 Kan. 496, 71 Pac. 813, 61 L. R. A. 52. 21 Paterson Gaslight Co. v. Brady, 27 N. J. Law, 245, 72 Am, Dec. 360. See, also, cases In note 20. 600 WATER AND GAS COMPANIES. (Ch. 23 REGULATION OF PRICES BY MUNICIPAMTY— LIMITA- TIONS. 210. Unless estopped by valid contract or prevented by stat- ute, a municipality may, in tbe appropriate exercise of its powers, regulate rates and prices to consumers of gas and ^vater by reasonable ordinances. The municipality is always the largest customer of the com- pany for light and water, and by contract may make promises to pay prices, to which it will be bound as would any contract- ing party for any other article of commerce; ^^ and prices for private consumers may be thus fixed by municipal contract, so that they cannot be changed by ordinance ; ^* but authority for the municipality to make such contracts must plainly ap- pear.^* A maximum rate may be fixed by company charter or by statute.^ ° In the absence of such restriction, however, it is competent for the municipality to fix prices to be charged by the company supplying light or water,^" such regulation 2 2 Seibrecht v. New Orleans, 12 La. Ann. 496; CITY OP IN- DIANAPOLIS V. COKE CO., G6 Ind. 396; CITY OP VALPARAISQ \. GARDNER, 97 Ind. 1, 49 Am. Rep, 416; Douglass v. Virginia City, 5 Nev. 147. 23 City of Tampa v. Waterworks Co. (Fla.) 34 South. 631; Logan Nat. Gas & Fuel Co. v. Chillicothe, 65 Ohio St. 186, 62 N. B. 122; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. 185. See, also, cases in preceding note. 2 4 1 Dill. Mun. Corp. § 447; People v. Barnard, 110 N. Y. 552, 18 N. E. 354; Allegheny City v. Railway Co., 159 Pa. 411, 28 Atl. 202; State V. Coke Co., 18 Ohio St. 262. 2 5 Muncie Nat. Gaa Co. v. Muncie, 160 Ind. 97, 66 N. E. 436, 60 L. R. A. 822; CITY OF KNOXVILLE v. WATER CO., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; Knoxville Water Co. v. Knox- ville, 189 U. S. 434, 23 Sup. Ct. 531, 47 L. Ed. 887; Los Angeles City Water Co. v. Los Angeles, 88 Fed. 720; City of Danville v. Water Co., 178 111. 299, 53 N. E. 118, 69 Am. St. Rep. 304; Creston Water- works Co. v. Creston, 101 Iowa, 687, 70 N. W. 739; San Diego Land 6 Town Co. V. National City, 74 Fed. 79. 2 6 State v. Coke Co., 18 Ohio St. 262; State v. Gaslight Co., 29 Wis. 454, 9 Am. Rep. 598; State v. Gas Co., 37 Ohio St. 45. § 211) REASONABLE REGULATION OF RATES — BASIS OF. 601 being a proper exercise of the police power. But the rate so fixed must not be less than the necessary cost of producing and supplying the utiUty, and thereby amount to a confiscation of the company's franchise.^'' Nor, indeed, must it be so low as to deprive the company of the just comipensation which it is entitled to demand for its service.^* The settled rule upon this subject is that the regulation of rates must be reasonable,^ ^ having in view both the rights of the company and those of its customers ; for confiscation and extortion are equally odious to the law." REASONABLE REGUIiATIOX OF BATES— BASIS OF. 211. A reasonable regulation of rates is one based upon the reasonable value of the company's property at tbe time it is being used for the public and tbe regula- tion enforced. The power of public regulation of public utilities has been the subject of much contention during the last quarter of a century. The doctrine was first conspicuously asserted and applied in the celebrated Warehouse Case, in 1877, by the Supreme Court of the United States."^ This case and the Granger Cases ^^ seemed to concede absolute power of regu- lation to the legislature. Later cases, however, by the same 27 state V. Coke Co., supra; Cotting v. Stock Yards Co., 183 U. S. 79, 91, 22 Sup. Ct. 30, 46 L. Ed. 92. 2 8 San Diego Land & Town Co. v. Jasper, 1S9 U. S. 442, 23 Sup. Ct. 571, 47 L. Ed. S92. 29 People V. Gaslight Co., 45 Barb. (N. Y.) 136; Tacoma Hotel Co. V. Water Co., 3 Wash. St. 316, 28 Pae. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35 ; Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. 334. 388, 29 L. Ed. 636; SMYTH v. AMES, 169 U. S. 466, 523, 18 Sup. Ct. 418, 42 L. Ed. 819; SAN DIEGO LAND & TOWN CO. v. NATIONAL CITY, 174 U. S. 739-757, 758, 19 Sup. Ct. 804, 43 L. Ed. 1154. 30 CHICAGO. M. & ST. P. R. CO. v. MINNESOTA, 134 U. S. 459. 10 Sup. Ct. 462, 33 L. Ed. 970. «i MUNN V. ILLINOIS, 94 U. S. 113, 24 L. Ed. 77. 82 CHICAGO, B. & Q. R. Co. v. IOWA, 94 U. S. 155, 24 L. Ed. 94; Peik v. Railroad Co., 94 U. S. 164, 24 L. Ed. 97. 602 WATER AND GAS COMPANIES. (Ch. 23 tribunal, have qualified this doctrine by declaring that stat- utes fixing rates amounting to confiscation were void.^^ Ac- cordingly it was held in subsequent cases that such regulation, whether by the state or municipalities, must be reasonable,^* and not such as would deprive the companies of fair compensa- tion for services rendered.^"* Under this modified doctrine the courts necessarily assume the duty of saying whether a legislative act is a reasonable regulation.^" This the courts determine upon the facts appearing in each case.^'^ The deter- mination of the legislature is presumed to be just; but, if the enforcement of the law will deprive the company of reasonable compensation, then it is being deprived of its property without due process of law.'* 33 CHICAGO, M. & ST. P. R. CO. v. MINNESOTA, 134 U. S. 418, 10 Sup. Ct 702, 33 L. Ed. 970; SMYTH v. AMES, 1G9 U. S. 46G. 18 Sup. Ct. 418, 42 L. Ed. 819. 34 SMYTH V. AMES, supra. 3 5 City of Wilkes Barre v. Supply Co., 4 Lack. Leg. N. (Pa.) 367: Redlands, L. & C. Domestic Water Co. v. Kedlands, 121 Cal. 312. 53 Pac. 791; Turner v. Water Co., 171 Mass. 329, 50 N. E. 634, 40 L. R. A. 657, 68 Am. St. Rep. 432; Griffiu v. Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240 ; CHICAGO. M. & ST. P. R. CO. V. MINNESOTA, 134 U. S. 418, 10 Sup. Ct 462, 33 L. Ed. 970. In a proceeding to determine the reasonableness of rates charged by a water company, the basis of calculation as to the value of the plant is the money actually invested ; and if the rates charged yield any greater income than is fairly required to maintain the plant, pay fixed charges and operating expenses, provide a reasonable sink- ing fund for the payment of debts, and pay a fair dividend to share- holders, they cannot be said to be unreasonable, and will be sustained by the court. City of Wilkes Barre v. Supply Co., supra. 36 People's Gaslight & Coke Co. v. Hale, 94 111. App. 406; Brymer v. Water Co., 179 Pa. 231, 36 Atl. 249, 36 L. R. A. 260. Also, as to reasonableness of a municipal ordinance fixing rates. Capital City Gas Co. V. Des Moines, 72 Fed. 818; SMYTH v. AMES, supra. 3 7 Kennebec Water Dist. v. Waterville, 97 Me. 185, 54 Atl. 6. 60 L. R. A. 856; Cedar Rapids Water Co. v. Cedar Rapids, 117 Iowa, 250, 90 N. W. 746 ; SAN DIEGO LAND & TOWN CO. v. NATIONAL CITY, 174 U. S. 739, 19 Sup. Ct. 804, 43 L. Ed. 1154. 3s Const. U. S. Fifth Amend. The courts will not interfere to prevent the enforcement of an § 212) JUDICIAL INVESTIGATION. 603 Present Value. Speaking of the decisions of the Supreme Court of the Unit- ed States, Brewer, J., says: "It has declared that the present value of the property is the basis by which the test of reason- ableness is to be determined," ^® The language of Mr. Justice Holmes in a recent case is : "What the company is entitled to demand in order that it may have just compensation is a fair return upon the reasonable value of the property at the time it is being used for the public." *•* Municipal ordinances have long been subjected by the courts to the test of reasonableness, and the rules above mentioned are applied to municipal ordi- nances regulating rates for public utilities.*' JXJDICIAI. INVESTIGATION. 212. This reasonable value is matter for judicial decision upon due consideration of the various elements constituting such value. What these elements are and what methods shall be used in deciding what is reasonable value has given the courts no little trouble. Matters which have been suggested as proper for consideration are the cost of the plant, original and added; ordinance fixing rates which may be charged by a water com- pany, unless it is clear beyond a doubt that the rates fixed by the ordinance are so low that the enforcement will amount to a taking of property without just compensation. Cedar Rapids Water Co. v. Cedar Rapids, supra. 3" Cotting V. Stock Yards Co., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92. 40 San Diego Land & Town Co. v. Jasper, 189 U. S. 442, 23 Sup. Ct. 571, 47 L. Ed. 892. The basis of calculations as to the reasonableness of rates to be charged by a water company is the fair value of the property used by it for the convenience of the public, which has the right to de- mand that the rates shall be no higher than the services are worth to them as individuals. Kennebec Water Dist. v. Waterville, 97 Me. 185. 54 Atl. 6, 60 L. R. A. SoG. 41 Ante, § 75. <>04 WATER AND GAS COMPANIES. (Cll. 23 the operating expenses ; the revenue under the proposed rates of regulation ; present cost of construction ; amount and vakie of stock and bonds.** In a very recent case *' the Supreme Court of California says : "In determining such values, three, and, we believe, only three, methods are possible : (1) Either by ascertaining what the property could be sold for (its market value) ; (2) by ascertaining what it would cost to replace it ; or (3) by ascertaining the revenue it is capable of producing." The first method would require for application either a public sale or the mere opinion of witnesses, and seems, therefore, not feasible for the practical purposes of litigation. Particular gas plants or water plants can hardly be said to have a market value, and courts cannot resort to an experiment of public sale merely to ascertain their value. The revenue basis seems fair and feasible. The quantity of water or gas furnished monthly or yearly can be determined from the company's books with reasonable certainty, as also its operating expenses, including annual repairs ; and from these elements, with others attain- able, reasonable value could be closely approximated by com- putation ; though there still remains the difficulty of determin- ing what the plant ought to yield to its owner. The replace- ment basis also seems practical, since the present cost of work and material and the amount thereof could be fairly approxi- mated by competent engineers. The two most recent cases, however — Stanislaus County v. San Joaquin & King's River Canal & Irrigation Co.** and Spring Valley Waterworks v. San Francisco *^ — leave the problem still unsettled, and the rules for settling it unwritten. 42 Logansport & W. Valley Gas Co. v. Peru, 89 Fed. 185; SMYTH V. AMES, 1G9 U. S. 466, 547, IS Sup. Ct. 418, 42 L. Ed. 819. 43 San Diego Water Co. v. San Diego, 118 Cal. 556, 50 Pac. 637, 38 L. R. A. 460, 62 Am. St. Rep. 261. 44 192 U. S. 201, 24 Sup. Ct. 241, 48 L. Ed. 406. 4 8 124 Fed. 574. § 213) REASONABLE REGULATIONS BY COMPANIES. 605 R£ASOXABI.E REGULATIONS PRESCRIBED BT OOMPA- NIES. 813. Gas and water companies may prescribe and enforce reasonable rules to regulate tbeir course of dealing ivitli and service to their customers; but unreasonable regulations are void. Every private person or corporation may choose with whom he or it will deal. They are not bound to sell to any one at any price ; and with their customers they may deal as they will, selling to one at one price and to another at a higher or lower price, giving credit to one and requiring cash from another. But a quasi public corporation has no such liberty of choice and freedom of trade. It must deal with all who come within its scope upon equal terms, and without discrimination.*® To protect itself against the fraud, default, or negligence of vi- cious, indigent, or careless customers, and to insure promptness and regularity in the transaction of business, a quasi public corporation may make and enforce reasonable rules and reg- 4 6 state V. Trust Co., 157 Ind. 345, 61 N. E. 674, 55 L. R. A. 245; State V. Water Co., 18 Mont. 199^, 44 Pac. 966, 32 L. R. A. 697, 56 Am. St. Rep. 574; Haugen v. Water Co.. 21 Or. 411, 28 Pac. 244. 14 L. R. A. 424; Griffin v. Water Co., 122 N. C. 206, 30 S. E. 319. 41 L. R. A. 240; Indiana Natural Illuminating Gas Co. v. State, 158 Ind. 516, 63 N. E. 220, 57 L. R. A. 761; Spring Valley Waterworks V. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173; LOWELL v. BOSTON, 111 Mass. 464, 15 Am. Rep. 39; NEW ORLEANS GAS- LIGHT CO. V. HEAT CO., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516 ; Williams v. Gas Co., 52 Mich. 499, 18 N. W. 236, 50 Am. Rep. 266 ; City of Macon v. Harris, 73 Ga. 428 ; Smith v. Telegraph Co., 42 Hun (N. Y.) 454. A natural gas company, given the power by a city to locate its pipes for the purpose of supplying the city with natural gas, is bound to furnish gas to every inhabitant of the city who complies with the regulations prescribed by the city ordinances or lixed by the contract between the council and the company. Charleston Nat. Gas Co. V. Lowe, 52 W. Va. 662, 44 S. E. 410. 606 WATER AND GAS COMPANIES. (Ch. 23 ulations.*'' whicli, when made known to its customers, are con- tractual and controlling in their character.** Manner of Notice, and Effect. These rules are generally furnished to their customers by gas and water companies in the form of little pamphlets, and the more important ones are usually printed upon the receipts for monthly or quarterly bills. The consumer is presumed thereby to be notified of the tenor and effect of these rules and regulations, and by continuing his dealing with the company to give his assent thereto.*^ But his assent is not necessary, since the company is clothed with power to make and enforce all reasonable regulations for its own convenience and securi- ty.^" But these rules are always subject to challenge before the court, and, if found by them to be unreasonable, are de- clared void for that cause."** Any attempt or threat to enforce such unreasonable regulations may be enjoined in chancery, ^- and an action will lie against the company for injury sustained by any customer through their arbitrary enforcement.^^ *7 Metropolitan Grain & Stock EJxch. v. Board of Irade, 15 Fed. 850; Missouri v. Teleplione Co., 23 Fed. 539; CRUMLEY v. WATER CO., 99 Tenn. 420, 41 S. W. 1058; Tacoma Hotel Co. v. Water Co., 3 Waeh. St. 316, 28 Pac. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35; Shiras v. Ewing, 48 Kan. 170, 29 Pac. 320. 4 8 Hieronymus v. Supply Co., 131 Ala. 447, 31 South. 31; Sbepard V. Gaslight Co., 6 Wis. 539, 70 Am. Dec. 479. *9 Rieker v. Lancaster, 7 Pa. Super. Ct. 149. 50 Watauga Water Co. v. Wolfe, 99 Teun. 429, 41 S. W. 1060, 63 Am. St. Rep. 841; Harbison v. Water Co. (Tenn.) 53 S. W. 993. 51 Red Star Line S. S. Co. v. Jersey City, 45 N. J. Law, 246. 52 Edwards v. Water Co., 116 Ga. 201, 42 S. E. 417; Graves v. Gas Co., 93 Iowa, 470, 61 N. W. 937; Dayton v. Quigley, 29 N. J. Eq. 77; Williams v. Gas Co., 52 Mich. 499, 18 N. W. 236, 50 Am. Itep. 266. 53 Coy V. Gas Co., 146 Ind. 655, 46 N. E. 17, 36 L. R. A. 535; CRUMLEY V. WATER CO., 99 Tenn. 420, 41 S. W. 1058; Shepard V. Gaslight Co., 15 Wis. 318, 82 Am. Dec. 679. § 213) REASONABLE REGULATIONS BY COMPANIEa GOT Jlliat arc Reasonable or Unreasonable. Rules have been held to be reasonable and proper which authorized the company to disconnect its pipes from those of a consumer who does not pay his bill to the company within a fixed time after rendered ; ^^ or from a water consumer with- out meter who wastes water by allowing it to run continually ; '^ or from one who permits his neighbors to use water from his hydrant, or sells water therefrom ; ^" or refuses to give security or make deposit to insure payment of rates.'^ On the contrary, regulations have been held to be unreason- able and void which, on penalty to disconnect, required con- sumers to buy an expensive meter of a particular kind ; ^* or to permit an inspector to have free access at all times to build- ings and dwellings, and to remove meter and service pipe.^* 64 People V. Gaslight Co., 45 Barb. (N. Y.) 136 ; Tacoma Hotel Co. V. Water Co., 3 Wash. St. 316. 28 Pac. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35; Fuller v. Irrigating Co., 138 Cal. 204, 71 Pac. 98; Har- bison V. Water Co. (Tenn.) 53 S. W. 993; Sheward v. Water Co., 90 Cal. 635, 27 Pac. 439; American Waterworks Co. v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R, A. 447, 50 Am. St. Rep. 610; Shiras v. Ewing. 48 Kan. 170, 29 Pac. 320. Rules for payment for water in advance have been held reasona- ble. Harbison v. Water Co., supra; City of Rushville v. Gas Co., 132 Ind. 575. 28 N. £.853, 15 L. R. A. 321: Rockland Water Co. v. Adams. 84 Me. 472, 24 Atl. 840. 30 Am. St. Rep. 368. 8 5 State V. Water Co., 18 Mont. 199. 44 Pac. 966. 32 L. R. A. 697. 56 Am. St. Rep. 574; Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. St. Rep. 841. B« McDaniel v. Waterworks Co.. 48 Mo. App. 278. 87 Shepard v. Gaslight Co., 6 Wis. 539, 70 Am. Dec. 479. 68 Red Star Line S. S. Co. v. Jersey City, 45 N. J. Law, 246. 88 Shepard v. Gaslight Co., 6 Wis. 539, 70 Am. Dec. 479. atsel V. Blaine, 231. Battis, Ex parte, 243. Battle V. Mobile, 471. Bauer v. Franklin Co., 68, 69. V. Rochester, 422, 425. Bauman v. Detroit, 430. V. Ross, 471. Baumgard v. Mayor, 413. Baumgartner v. Hasty, 50, 114, 175, 349, 356, 358, .360, 372. Bayle v. New Orleans, 517. Beach v. Elmira, 433. V. Leahy, 13, 21, 93, 101, 102, 110. Beachy v. Lamkin, 491. Bealafield v. Verona, 431. i CASES CITED. [The figures refer to pages.] 627 Beard v. Decatur, 268. V. Hopkinsville, 445. Beard en v. Madison, 111, 245, 566. Beardsley v. Hartford, 417, 427. V. Smith, 25. Beauchamp v. State, 131. Beaumont v. Wilkesbarre, 338. Beazan v. Mason City, 417. Beck V. Buffalo, 429. V. Holland, 329. V. Puckett, 40, 44, 46, 52. V. St. Paul, 443. Becker v. Henderson, 228. V. Washington, 325. Bedell v. Railroad Co., 216. Beebe v. Little Rock, 292. V. Sup'rs, 514. Beekman v. Railroad Co., 49, 546, 614. Beers v. Arkansas, 407, 596. Beiling v. Evansville, 52, 354. Bell V. Henderson, 419. V. Platteville, 513. V. Railroad Co., 38. V. York, 428. Bellaire Goblet Co. v. Findlay, 309. Bell County v. Alexander, 44. Bellinger v. Gray. 86. Bellmeyger v. Marshalltown, 61. Belo V. Com'rs, 71. Bender v. Streabich, 105. Bennett v. Buffalo, 342, 483. V. Fifield, 424. V. Lovell, 423. V. Marion, 434. V. Sing Sing, 426. V. Whitney, 285. Bennett's Branch Imp. Co., Ap- peal of, 11. 111. Benson v. Carmel, 451. V. Hoboken, 485. V. New York, 596. Bentley v. Com'rs, 60. Benton v. Hamilton, 309. V. Hospital, 410. Bergin v. Telephone Co., 590. Bergman v. Cleveland, oU6, 369. Berlin v. Gorham, 112, 119, 127, 136, 139, 148, 191. Berlin Iron Bridge Co. v. San An- tonio, 265. Betham v. Philadelphia, 407, 431. Bethune v. Hughes, 368. Betz V. Limingi, 426. Beveridge v. Lewis, 555. Bevington v. Woodbury Co., 41. Bieber v. St. Paul, 382. Bier v. Gorrell, 84, 270. Bietry v. New Orleans, 312. Bigelow V. Draper, 548. V. Perth Am boy, 229. V. Randolph. 26. Bill V. Denver, 328. Billinghurst v. Spink Co., 478. Billingsley v. State, 284. Bills V. Goshen, 249. Bird V. Perkins, 149. Birdsall v. Clark, 227. Birmingham Traction Co. v. Elec- tric Co., 557. V. Telephone Co., 573. Biscoe V. Coulter, 475. Bishop V. Banks, 517. Bissell V. Davison, 50, 354. V. Jeflfersonville, 223, 227,303. V. Kankakee, 72, 442, 513. V. Railroad Co., 292. Bizzell, Ex parte, 236. Black V. Canal Co., 522. V. Columbia, 499. V. Com'rs, 59, 64. V. Cornell, 102-104. V. Detroit, 455. V. Railroad Co.. 561. Blackburn v. Oklahoma City, 255. P.lair V. Cuming, 618. V. Cuming Co., 71, 524. V. Forehand. 364, 373. V. Lantry, 281, 452. Blake v. Pontiac, 409. v. Railroad Co., 532. Blanchard v. Bis.sell, 114, 152, 154, 230, 323. V. Blaekstono, 281. V. Bristol, 372. 628 CASES CITED. [The figures refer to pages.] Blanchard v. Ivers, 371. Blatchley v. Moser, 253. Blennerhassett v. Forest City, 384. Blessing v. Galveston, 112. Bliss V. Ball, 380. Block V. Jacksonville, 356. Blood V. Sayie. 85. Bloomer v. Stolley, 193. Bloomfield & R. Natural Gas Light Co. V. Richardson, 524, 593-595. Bluedorn v. Railroad Co., 244. Blydenburgh v. Miles, 366. Boalt V. Com'rs, 29. Board v. Territory, 517. Boardman v. Hayne, 280. Board of Aldermen v. Darrow, 272, 277. Board of Cass County Com'rs v. Ross, 55. Board of Chosen Freeholders of Atlantic Covmty v. Weymouth Tp., 487. Board of Chosen Freeholders Sus- sex County v. Strader, 25, 54. Board of Com'rs for Filling Cer- tain Slough Ponds v. Shields, 136. Board of Com'rs of Bladen Co. V. Clarke, 39. Board of Com'rs of Clinton Co. V. Hill, 44. Board of Com'rs of Comanche Co. V. Lewis, 70. Board of Com'rs of Custer Co. v. De Lana, 71. Board of Com'rs of Floyd Co. v. Day, 68. Board of Comers of Fremont Co. V. Perkins, 82. Board of Com'rs of Greer Co. v. Watson, 54. Board of Com'rs of Gunnison Co. v. E. H. Rollins & Sons, 77, 78. Board of Com'rs of Hamilton Co. V. Mighels, 11, 13, 28, 32, 38. 110. Board of Com'rs of Harrison Co. V. Byrne, 44. Board of Com'rs of Huntington Co. V. Buchanan, 80. Board of Com'rs of Jasper Co. v. Allman, 55. Board of Com'rs of Jay Co. v. Taylor, 42. Board of Com'rs of Lake Co. v. Sutliff, 77, 78. Board of Com'rs of Montgomeiy Co. V. Fullen, 107, 499. Board of Com'rs of Morgan Co. V. Seaton, 45. Board of Com'rs of Orange Co. v. Ritter, 45. Board of Com'rs of Owens Co. v. Spaugler, 516. Board of Com'rs of Oxford v. Bank, 74, '75. Board of Com'rs of Perry Co. v. Lamax, 42, 45. Board of Com'rs of Seward Co. v. Insurance Co., 447. Board of Com'rs of Sullivan Co. V. Aruett, SO. Board of Com'rs of Warren Co. v. Gregory, 80. Board of Com'rs of Washington Co. V. Clapp, 80. Board of Councilmen of Frank- fort V. Com., 411. V. Mason, 167. V. Murray, 327. Board of Directors for Leveeing Wabash River v. Houston, 525, 619. Board of Directors of St. Francis Levee Dist, 619. Board of Education v. Com'rs, 204. V. Moore, 269. V. Quick, 268. Board of El Paso County Com'rs V. Bish, 94. Board of Hamilton County Com'rs V. Mighels, 19, 20, 23. 100, 116. CASES CITED. [The figures refer to pages.] 629 Board of Health v. People, 503. Board of Hunting County Com'rs V. Boyle, 64. Board of Improvement Dist. No. 60 V. Cotter, 322. Board of Jefferson County Sup'rs V. Arrighi, 54, 65. Board of Kuox County Com'rs v. Johnson, 264. V. Montgomery, 25. Board of Levee Inspectors of Chi- cot Co. V. Crittenden, 128. Board of Liquidators of City Debts V. Municipality, 211, 453. Board of Orange County Com'rs V. Ritter, 56. Board of School Com'rs of Anne Arundel County v. Gantt, 46. Board of Shawnee County Com'rs V. Carter, 56. Board of Socorro County Com'rs V. Leavitt, 161. Board of Sup'rs of Bedford Co. v. High School, 102. Board of Sup'rs of Carroll Co. v. Smith, 74, 75. Board of Sup'rs of Chickasav? Co. V. Clay Co., 157. Board of Sup'rs of Culpeper Co. V. Gorrell, 42, 553. Board of Sup'rs of Lawrence Co. V. Brookhaven, 80. Board of Sup'rs of Leflore Co. v. Cannon, 306. Board of Sup'rs of Mercer Co. v. Hubbard, 73. Board of Sup'rs of Richmond Co. V. Wandel, 39. Board of Sup"rs of Sangamon Co. V. Springfield, 67, 201. Board of Sup'rs of Warren Co. v. Patterson, 37. Board of Tippecanoe County Com'rs V. Cox, 58. Board of Tippecanoe County Com'rs V. Mitchell, 265. Bodge V. Philadelphia. 414. Bodine v. Common Council, 161. Boehl V. Railroad Co., 543. Boehm v. Baltimore, 286. Bogert V. Elizabeth, 339. Boggero v. Railroad, 566. Bohan v. Railroad Co., 558. Bohen, In re, 354. V. Waseca, 393, 428. Boice V. Plainfield, 486. Boise City Artesian Hot & Cold Water Co. v. Boise City, 595, 598. Bolles V. Brimfield, 456. V. Perry Co., 71, 76. Bolster v. Railroad Co., 399. Bond V. Hiestand, 161, 192. Bonebrake v. Wall, 286. Bonesteel v. Mayor, 302. V. New York, 61. Bonham v. Railroad Co., 569. Bonner v. State, 272. Bonsall v. Lebanon, 342. Booker v. Donohoe, 84. Booth v. Carthage, 253. v. Woodbury, 466, 469. Boro V. Phillips Co., 87, 452. Borough of Alliance, In re, 153. Borough of Avoca v. Railroad Co., 222. Borough of Brookville v. Arthurs, 417. Borough of Butler, Appeal of. 353. Borough of Freeport v. Marks, 235, 236. Borough of Glen Ridge v. Stout, 128. Borough of Henderson v. Sibley Co., 55, 63, 67. Borough of Larksville, In re, 155. Borough of Madison v. Gaslight Co.. .596. Borough of New Hope v. Tele- graph Co.. 368. Borough of Norristown v. Fitz- patrick, 257. Borough of St. Peter v. Bauer. 195. Borough of Shamokin v. Railroad Co., 516. 630 CASES CITED. [The figures refer to pages.] Borough of Stamford v. Studwell, 359. Borough of Warren v. Geer, 366. Borough of York v. Forscht, 292. Boston Beer Co. v. Massachusetts, 529, 530, 535, 568. Boston Belting Co. v. Boston, 434. Boston Electric Light Co. v. Ter- minal Co., 345. Boston Water Power Co. v. Rail- road Corp., 552. Boston & A. R. Co., In re 551, 552. V. Shanly, 543. Boston & M. R. Co. v. Com'rs, 559. Boston & R. Mill Dam Corp. v. Newman, 618. Boswell V. Albany Co.. 80. Bosworth V. New Orleans, 255. Bott V. Pratt, 179. Bouldin v. Lockhart, 38. Bourbon Stockyard Co. v. Wood- ley, 393. Bourgeois, Ex parte, 351, 352. Bousquet v. State, 221. Boutte V. Enimer, 281. Bow V. Allenstown, 101, 117, 118, 146, 147, 171, 185. Bowden v. Derby, 283. Bowditch V. Boston, 349, 360, 499. Bower v. Bainbridge, 474, 486. Bowerbank v. Morris, 270. Bowers y. Bowers, 255. V. Horen, 249. Bowes V. Boston, 424. Bowie V. Electric Co., 560. Bowman v. St. John, 249. Bowyer v. Camden, 161, 260. Boyd V. Alabama, 530. V. Chambers, 191. Bozarth v. McGilicuddy, 306. Brabham v. Hinds Co., 53. Brabon v. Seattle, 375, 381. Brace v. Railroad Co., 375. Braden v. Stumph, 38. Bradford v. Anniston, 420. V. San Francisco, 311. Bradford County v. Horton, 45. Bradley v. Ballard, 292. V. Com'rs, 36. Bradley v. McAtee, 464. V. Railroad Co., 546. V. Telephone Co., 590. Bradweil v. Illinois, 261. Brady v. Bartlett, 311. V. Howe, 271. V. Insurance Co., 358, 359. V. New York, 62. V. State, 500, 614. Brainard v. Colchester, 454. V. Kings Co., 54. V. Railroad Co., 571. Brake v. Kansas City, 420. Brakken v. Railroad Co., 380. Brander v. Justices, 276. Brayton v. Fall River, 412. Breil v. Buffalo, 420. Brenham v. Bank, 316, 442, 449. Brent v. Kimball, 372. Brevoort v. Detroit, 473. Brewer Brick Co. v. Inhabitants, 464. Brewster v. Hough, 454. V. Syracuse, 205, 212, 471. Brewster Co. v. Presidio Co., 54. Brick Presbyterian Chm'ch Corp. V. Mayor, 453. Bridgenor v. Rodgers, 39. Briegel v. Philadelphia, 410. Brieswick v. Brunswick, 249. Briggs V. Borden, 104. V. Lewiston, 495. V. Railroad Co., 569. V. Russellville, 476. Bright V. Halloman, 87, 89. Brighton v. Toronto, 246. Brinckerhoff v. Board, 20. BrinkerhofC v. Jersey City, 82. Brinton, Appeal of, 152. Brissenden v. Clay Co., 81. Bristol V. New Chester, 112, 157. British Commercial Life Ins. Co. V. Com'rs, 479. Brittle v. People, 120. Britton v. New York, 346. V. Steber, 201, 258. Broadbelt v. Loow. 392. Broad St., In re, 224. J CASES CITED. [The figures refer to pages.] 631 Broadway Baptist Church v. Mc- Atee, 342. Brobine v. Revere, 399. Broburg v. Des Moines, 428. Brockman v. Creston, 293, 514, 51G. Brodhead v. Milwaukee, 72, 466. Broking v. Van Valen, 117. Brome v. Cuming Co., 62. Bronson v. Telegraph Co., 586, 590. V. Washington, 498. Brooklyn Cent. R. Co. v. Railroad Co., 568. Brooklyn Park Com'rs v. Arm- strong, 353, 398. Brooklyn Teachers' Ass'n v. Board, 500. Brooks V. Mongan, 282. Brophy v. Hs^att, 364. V. Perth Amboy, 250. Broughton v. Pensacola, 148, 168, 46d. Brown v. Beatty, 49. V. Bermudez Co., 322, 338. V. Blake, 263. V. Bon Homme Co., 60. 65, 69-71, 73-75. V. Carpenter, 372. V. Chillicothe, 426. v. Corry, 445. V. Crego, 491. V. District of Columbia, 223. V. Duplessis, 392. V. Gates, 490, 496, V. Grand Rapids, 334. V. Houston, 307, 505. V. Hunn, 359. V. .Jacobs, 450. V. Louisburg, 424. V. Lowell. 3^31. V. Mayor, 65. V. Itaiiroad Co., 548. V. Rundlett, 280. V. Russell, 255. 279. V. Saginaw, 336. V. Turner. 257. 272. V. Vinalharen, 408. V. Walker, 563. Brown County Com'rs v. Butt, 23. Browne v. Boston, 443. Browning v. Springfield, 55. Brown's Adm'r v. Guyandotte, 407. Brown's Case, 195. Brownsville Taxing Dist. v. Loague, 505. Brule Co. v. King, 488. Brumm's Appeal, 111. Bruner v. Bryan, 270. Brunswick Gas Light Co. v. Gas Light Co., 594. Brush V. New York, 424. Brush Electric Light & Power Co. V. City Council, 290, 298. Bryant v. St. Paul, 408, 499. Brjant's Lessee v. McCandless, 382, 510. Brymer v. Water Co., 602. Buchanan v. Beaver, 276. V. Duluth, 395. V. Litchfield, 443. Buck V. Eureka, 269, 290, 298, 444. V. Miller, 474. Buckley v. Kansas City, 420, 427. Bucroft V. Council Bluffs, 328. Budd V. Railroad Co., 253, 387. Budlong, In re. 271. Buell V. Ball, 236. V. Buckingham, 223. V. State, 175. Buffalo V. Buffalo Gas Co., 598. Buffalo Bayou, B. & C. R. Co. v. Ferris, 548. Buffalo City Cemetery v. Buffalo, 339. Buffalo & N. F. R. Co. v. Buffalo, 361. Buffalo & N. Y. C. R. Co. v. Brainard. 50. ^A V. Brainerd, 547. ^f Buford V. State, 148, 164, 182, 193, Bull V. Quincy, 485. V. Read, 182. V. Sims, 450. Bullitt V. Selvage. 328. Bullitt Co. V. Washer, 227. BuUmaster v, St. Joseph, 59L 632 CASES CITKD. [The figures refer to pages.] Burbank v. Fay, 384. Bui-ch V. Hardwicke, 178, 199, 257, 258. Burckhardt v. Atlanta, 329. Burden v. Stein, 347, 4()5. Burdick v. Richmond, 457. Burditt T. Swenson, 350. Burford r. Grand Rapids, 411, 430. Burger v. Philadelphia, 431. Burgess v. Jefferson, 30G. Burghard v. Fitch, 325. Burke v. Edgar, 269. Burlington Sav. Bank v. Clinton, 158. Burlington Tp. v. Beasley, 524, 618. Burlington & Henderson County Ferry Co. v. Davis, 523, 616. Burnes v. Atchison, 462, 484. V. Mayor, 132. V. St. Joseph, 387, 419, 424. Burness v. Multnomah Co., 87. Burnett, Ex parte, 175, 176, 483, 484. In re, 369. V. Abbott, 43, 495. V. Maloney, 40, 47, 54. V. New York, 396. V. Sacramento, 335. Burns, Ex parte, 127, 128, 134. V. Bradford, 426. V. New York, 255. Burr V. Atlanta, 482. V. New Castle, 378. Burrill v. Augusta, 409. V. Boston, 62, 95, 292, 298, 456, 493. Burt V. Railroad Co., 224, 266. Bush V. Geisy, 458. V. Portland, 328. Buskirl^ v. Strickland, 283. Butler V. Dunham, 303. V. Montclair, 328. V. Neosho Co., 62. V. Passaic, 230, 232. V. School Dist, 105. V. Walker, 224, 225. Butte, A. & P. R. Co. v. Railroad Co., 551. Butterfield v. Treichler, 509. Butterworth v. Bartlett, 388. Butz V. Cavanaugh, 411. V. Muscatine, 197, 496. Byers v. Com., 363, 372. Byram v. Foley, 334. Byrne v. East Carroll Parish, 55. Cadmus v. Farr, 220, 263. Cain V. Com'rs, 335. V. Wyoming, 208, 445. Cairncross v. Pewaukee, 418. Calder v. Bull, 596. Caldwell v. Alton, 308. V. Justices, 86, 89. V. State, 248. Calhoun v. Fletcher, 237. California v. Railroad Co., 129, 130, 523, 558, 564, 584, 612, 615. California Imp. Co. v. Reynolds, 306. Call V. Chadbourne, 140. Callagan v. Hallett, 81. Callam v. Saginaw, 402, 403, 481. Callan v. Wilson, 251. Callanan v. Gilman, 376, 388, 389. Callen v. Light Co., 592. V. Junction City, 154. Callender v. Marsh, 331. Calloway v. Sturm, 275. Calwell V. Boone, 407. Camden & A. R. Co. v. Landing Co., 291. Camp V. Knox Co., 68. V. Minneapolis, 160. Campana v. Calderhead, 105. Campbell, Ex parte, 369. V. County Court, 84. V. Polk Co., 68, 69, 87, 88. V. Railroad Co., 509. V. Thompson, 250. Campbell's Adm'x v. City Coun- cil, 353. V. Montgomery, 416, 499. J CASES CITED. [The figures refer to pages.] 633 Canal St., In re, 159. Canastota Knife Co. v. Tramway Co., 557, 590. Canavan v. Oil City, 425. Cannon v. Board, 505. V. Telegraph Co., 577. Cannon County Justices v. Hood- enpyle, 86. Canova v. Williams, 236. Capdevielle v. Railroad Co., 346, 398, 551. Cape Girardeau v. Fougeu, 231. Cape May, D. B. & S. P. R. Co. v. Cape May, 531, 533. Capital Bank v. School Dist, 103, 104. Capital City Gas Co. v. Des Moines, 533, 602. Cardwell v. Ilargis, 43. Carey v. Washington, 348, 351. Garland v. Custer County. 225. Carleton v. People, 144, 266. Carney v. Marseilles, 421, 431. Carondelet Canal Nav. Co. v. New Orleans, 204. Carpenter v. People, 207. Carr v. Northern Liberties, 394. V. State, 278. Carrier v. Gordon, 85, 476. Carriger v. Morristown, 475. Carrington v. St. Louis, 411. Carroll v. Board, 25. V. St. Louis, 81. V. Siebenthaler, 83. V. Tuskaloosa, 350. Carroll Co. v. Smith, 70. V. U. S., 68, 69, 87. Carron v. Martin, 304. Carson v. McPhetridge. 262. Carstesen v. Stratford, 420. V. Proprietors, 92, 212. V. Wade. 461. Carter Co. v. Sinton. 72. Carthage v. Light Co., 318. V. Rhodes, 364. Carton v. Railroad Co., 562. Gary Library v. Bliss, 147, 609. Cascaden v. Waterloo, 223. Case of City of London, 123. Casey v. Chase, 507. V. Pilkiugton, 450. Casinello, Ex parte, 355. Cason V. Ottumwa, 428. Cass Co. V. Gillett, 75. V. Johnston, 100. Cass Farm Co. v. Detroit, .307. Castleberry v. Atlanta, 391. Gate V. Martin, 221. Gathcart v. Comstock, 106, 110. Catlin V. Hull, 478. V. Valentine, 517. Caulfield v. State, 277. Cedar Rapids Water Co. v. Cedar Rapids, 302, 598, 602, 603. Cemansky v. Fitch, 340. Central Bridge Corp. v. Lowell, 259. Central of Georgia R. Go. v. Du- mas, 558. Central Park Com'rs, In re, 465. Central R. Co. v. Elizabeth, 231. V. Railroad Co., 615. Central Transp. Co. v. Car Co., 295. Central Union Telephone Co. v. Bradbury, 577, 581, 617. V. Swoveland, 576. C. F. Simmons Medicine Co. v. Ziegenhein, 470. Chadbourne v. Newcastle, 498. Chadwell, Ex parte, 113, 128, 188. Chaffee County Com'rs v. Potter, 78. Ghalkley v. Richmond, 432. Chamberlain v. Cleveland, 471. V. Telephone Co., 587. V. Woolsey, 488, 489. Chambers v. St. Louis, 163, 510. Champion v. Crandon, -131. Chancellor of State v. Elizabeth, 488. Chandler v. Boston, 156. V. Douglas, 16, 113. Chapin v. Railroad, 553. Chapman v. Douglas Co., 63, 295, 573. V. Railroad Co., 573. 634 CASES CITED. [The figures refer to pages.] Charles River Bridge v. Warren Bridge, 523. Charleston City Council v. City Council, 3G9. Charleston Natural Gas Co. v. Lowe, 595, 599, 605. Charleston & S. R. Co. v. Blake, 546. Charlotte, C. & A. R. Co. v. Gibbes, 561. Charnock v. Colfax, 497. Chase V. Lowell, 424. V. Portland, 332. Cheaney v. Hooser, 112, 127, 136, 156. Cheatham v. Shearon, 361. Cheeney v. Brookfield, 3U1, 457. Cheney, In re, 363. Cherokee Nation v. Railroad Co., 546, 584. Chesapeake & O. Canal Co. v. Key, 523, 616. V. Railroad Co., 8. Chesapeake & O. Ry. Co. v. Mays- ville, 361. Chesapeake & P. Telegraph Co. V. Telegraph Co., 523, 576, 577. Chesapeake & P. Telephone Co. v. Mayor, 386. Chester v. Traction Co., 530. Chicago, B. & Q. R. Co. v. Hitch- cock Co., 477. V. Iowa, 5, 14, 112, 522, 531, 536, 564, 601, 611, 621. V. Klein, 99. V. Pollock. 566. V. Quincy, 329. V. State, 582. V. Williams, 544. Chicago Dock & Canal Co. T. Garrity, 523. Chicago General R. Co. v. Rail- road Co., 384. Chicago G. W. R. Co. v. People, 535. Chicago, M. & St. P. R. Co. v. Ackley, 562. V. Minnesota, 532, 571, 601, 602. Chicago, M. & St. P. R. Co. v. So- lan, 562. Chicago OflSce Bldg. v. Railroad Co., 557. Chicago Packing & Provision Co. V. Chicago, 115, 181, 347. Chicago, R. 1. & P. R. Co. v. Lake, 550. V. People, 551. Chicago, R. I. & P. R. Co. v. Railroad Co., 291. Chicago, St. L. & N. O. R. Co. v. Kentwood, 150. Chicago Union Traction Co. v. Chicago, 333, 348. V. Stanford, 376. Chicago acey v. Brooklyn City, 270. Delatield v. Illinois, 119, 303. Delaraatyr v. Railroad Co., 561. Delaney, Ex parte, 363. r\elaware County v. Lock Co., 330. Delaware County v. McClintock, 68. Delaware, L. & W. R. Co. v. East Orange, 245. Delaware Railroad Tax Case, 542. Delger v. St. Paul, 421. De Loge v. Railroad Co., 234. Demar v. Boyne, 507. Demarest v. New Barbadoes Tp., 291. V. New York, 136, 270. De Mattos v. New Whatcom, 159. Dempster v. Chicago, 337. Dennison v. St. Louis Co., 56. Denver Circle R. Co. v. Nestor, 377. Denver R. Co. v. Railroad Co., 615. Denver & R. G. R. Co. v. Church. 85. Department of Health of City of New York v. Brewing Co., 362. De Portibus Moris, 611. De Rutte v. Telegraph Co., 581. Deshong v. New York. 390, 391. Des Moines Co. v. Harker, 118. Des Moines Gas Co. v. Des Moines, 179, 231. Desmond v. Jefferson, 483. Detroit Citizens' St. R. Co. v. De- troit, 385. Detroit, Ft. W. & B. I. R. Co. v. Com'rs, 561. V. Osborn. 531, 613. Detroit Free Press Co. v. State Auditor, 256. Detroit Park Case, 212, 393, 397, 480. De Varaigne v. Fox, 49. Devers v. Howard, 295. Devlin v. Dalton, 509. V. Philadelphia, 334. Devore's Appeal, 114, 155. De Voss V. Richmond, 315, 446, 448. Dewey v. Des Moines, 337. V. Railroad Co., 292. Dexter v. Tree, 375. G4S CASES CITED. [The figures refer to pages.] Dey V. Jersey City, 223, 226, 259. 326. Diamond v. Mankato, 329, 336. Diamond Match Co. v. New Ha- ven, 394. V. Ontonagon, 476. Dickerson v. Butler, 83. V. Le Roy, 3S4. V. Rogers, 613. Dickinson v. Poughkeepsie, 103. Dikes V. Miller. 119. Dillingham v. Snow, 117. Dingley v. Boston, 115. Directors for Leveeing Wabash River v. Houston, 6, 11, 14. Distilling & Cattle Feeding Co. v. People, 143. District of Columbia v. Boswell, 422. V. Woodbury, 416, 435. District Tp. of Doon v. Cummins, 444. Division of Howard Co., In re, 36. Dixon Co. V. Field, 58, 71, 74, 76, 443. Dobbins v. Los Angeles, 359. Doboy & Union Island Tel. Co. v. De Magathias, 126. Dodd V. Traction Co., 385, 386, Dodge V. Essex Co., 502. V. Granger, 409. V. Gridley, 180. V. Mission Tp., 86, 464, 466. Dodson V. Mock. 372. Doherty v. Braiutree, 430. Dolan V. Mayor, 83, 84, 209. V. New York, 269, 270. V. Railroad Co., .560. Dolese v. McDougall, 327. Domer v. District of Columbia, 426. 428. Domestic Telephone Co. y. New- ark. 385. Donahoe v. Kansas City, 394, 396, 432. V. Richards, 282. Donahue v. Gas Co., 389. Donnell v. State, 536. Donough V. Dewey, 143. Donovan v. Allert, 380, 588. V. Vicksburg, 249, 364. Dooley v. Sullivan, 499. Doolittle V. Walpole, 99. Dorey v. Boston, 223, 227. Dorgan v. Boston, 470, 472. Dorris v. Miller, 478. Dorsey Co. v. Whitehead, 459. Dorton v. Burks, 364. Doss V. Wiley, 103. Dougherty Co. v. Kemp, 38, 48. Douglass V. City Council, 216. V. Com., 308. V. Harrisville, 341, 515. V. President, etc., 616. V. State, 83. V. Virginia City, 495, 600. Dousman v. Milwaukee, 159. Dow V. Beidelman, 536. Dowell V. Portland, 03, 64, 67. Downey v. Railroad, 559. Downing v. Board, 147, 609. V. Roberts, 90. Downs V. Com'rs, 419. Dowty V. Pittwood, 260. Doyle V. Newark, 487. V. Raleigh, 255. Drake v. Elizabeth, 265. V. Phillips, 473. V. Seattle, 423. Draper v. Springport, 305. Dredla v. Baache, 82. Dred Scott v. Sanford, 130. Dressman v. Bank, 341. Drew V. Rogers, 262. V. Sutton, 424. Dreyfus v. Lonergan, 223. Dries v. St. Joseph. .'589. Driftwood Val. Turnpike Co. r. Bartholomew Co., .58. Driggs V. Phillips, 388. Drummoud v. Eau Claire. o26. Drury v. Railroad Co., 554. Dubach v. Railroad Co., 217. Dube V. Lewiston, 436. Dudley v. Frankfort Trustees, 276. V. High School, 9. Dufify V. State, 507. I CASES CITED. [The figures refer to pages.] 649 Dugan V. Baltimore, 494. V. Farrier, 224. Duggan V. Investment Co., 143. Duke V. Telegraph Co., 575. V. Williamsburg Co., 66. Duluth V. Dibblee, 337. Dulutb S. S. & A. R. Co. v. Doug- lass Co., 41. Dunbar v. Alcalde Ayuntamiento, 349. V. Augusta, 50, 360. V. Com'rs, 516. Duncan v. Charleston, 309, 442, 443. V. Niles. 287. V. State, 147. Duncombe v. Ft. Dodge, 65, 290, 305, 567. V. Prindle, 165. Dundy v. Board, 141. Dunham v. New Britain, 181, 347, 355. V. Rochester, 365, 368, 485. Durbach, Appeal of, 310. Durant v. Jersey City, 548. Durfee v. Railroad Co., 9. Durr V. Howard, 195. Dutton V. Aurora, 253. Duty V. State, 269. Duval County Com'rs v. Jackson- ville, 91, 197. Dwight V. City Council, 509. Dwyer v. Brenham, 185. Dyer v. Covington Tp., 458. V. Erwiu, 59, 60. Dyker Meadow Land & Improve- ment Co. v. Cook, 340. Dykes v. Mortgage Co., 478. Earl V. Board. 323. East Alabama R. Co. v. Doe. 547. Easterly v. Irwin, 407. Eastern R. Co. v. Railroad Co., 49, 553. Eastern S. A. R. Co. v. Railroad Co., 92. Eastern «& A. R. Co. v. Railroad Co., 211. Eastharapton v. Hill, 97. East Hartford v. Bridge Co., 148, 181, 209. Eastman v. Clackamas Co., 54. V. Meredith, 20, 22, 26, 56, 96, 164, 170, 412. East Omaha St. R. Co. v. Godola, 543. East Saginaw Mfg. Co. v. East Saginaw, 454. East St. Louis Connecting R. Co. V. Railroad Co., 552. East Tennessee Telephone Co. v. Railroad Co., 589. V. Russellville, 386. V. Telephone Co., 587. East Tennessee University v. Knoxville, 111, 115, 194. East Tennessee & G. R. Co. v. St. John, 564. East Tennessee & V. R. Co v. Love, 546. Eaton V. Aspinwall, 143. Echols V. State, 276. Eckhardt v. Darby, 106. Eddy V. Ellicottville, 409. Edgerton v. Water Co., 461. Edgewood R. Co., Appeal of, 524, 5ijO. Edmunds v. Gookins, 156. Edward C. Jones Co. v. Gutten- berg, 505. Edwards v. Ass'n, 525. V. Bates Co., 449. V. Berlin, 307. V. Keai-zey, 313. V. Pocahontas. 409.^ V. U. S., 263, 272-274, 276. V. Water Co.. 006. Eels V. Bailie. 508. Egan V. Chicago, 230. V. St. Paul, 256. Egleston v. City Council. 195. Egyptian Levee Co. v. Hardin, 619. Ehret v. Railroad Co., 557. 650 CASES CITED. [The figures refer to pages.] Eichels V. Railroad Co., 556. Eichenlaub v. St. Joseph, 358, 372. Einseidler v. Whitman Co., 46. Eldridge v. Smith, 528, 551. Electric Imp. Co. v. San Francis- co, 587. Elfelt V. Railroad Co., 5.57. i^lizabeth Water Co. v. Wade, 469. Ellerman v. McManis, 167. Elliot V. Minneapolis, 307. Elliott V. Bnrke, 271. V. Detroit, 500. V. Louisville, 368. V. Philadelphia, 499. V. Railroad Co., 392, 523. V. Sup'rs, 354. Ellis V. Cleburne, 296. V. Greaves, 507. V. Marshall, 7. V. People, 476, 488. V. Steuben Co., 81. V. Telegraph Co.. 578. V. Washoe Co., 39, 40. Ellsworth V. Lord, 379. Blmendorf v. Mayor, 233. Elmore v. Com'rs, 106, 619. V. Overton, 282. Elting V. Hickman, 464. Ely V. Rochester, 401. Embury v. Conner, 546. Emeric v. Oilman, 40G. Emerson v. Washington Co., 54, 62. Emery v. Gas Co., 473, 475, 489. Empire City Subway Co. v. Rail- road Co., 385. Bndriss v. Chippewa Co., 80. Enfield Toll Bridge Co. v. Rail- road Co., 556. English V. Chicot Co., 71. Ensley v. Nashville, 224, 225. Epping V. Columbus, 443, 445. Erie City v. Schwingle, 109. Erie County v. Brie, 475. Erie R. Co. v. Steward, 548, 568. Erie Telegraph & Telephone Co. V. Kennedy, 590. Ernst V. Waterworks Co., 612. Erskine v. Steele Co., 68, 69, 73. Erving v. Mayor, 308. Eschenburg v. Com'rs, 207. Eslava v. Jones, 284. Essex Public Road Board v. Skin- kle, 159, 204. Estep V. Keokuk Co., 58. Eureka City v. Wilson, 358, 359. Evans v. Railroad Co., 545. V. Trenton, 268. Bvansville v. State, 162, 471. Everett v. Council Bluffs, 356. V. Deal, 228, 277. V. School Dist, 449. Bverson v. Syracuse, 499. Everts v. District Tp., 104. Evison V. Railroad Co., 241. Ewbanks v. Ashley, 494. V. President, 248. Bzell V. Giles Co., 39. Fairbanks, Morse & Co. v. North Bend, 306, 307. Fairchild v. Ass'n, 3. Fairfield v. People, 487. Fairgrieve v. Moberly, 424. Fair's Estate, In re, 477. Fall River Iron Works Co. v. Rail- road Co., 573. Fanning v. Gregoire, 61, 64, 290. 305. . V. Osborne, 572. ii'armers' Loan & Trust Co. v. Galesburg, 312. Farmers' & Merchants' Nat. Bank v. School Dist, 102. Famsworth v. Pawtucket, 303. Farnum v. Johnson, 128. Farquar v. Rosebiu-g, 417. Farrar v. Fessenden, 87, 89, 486. V. St. Louis, 335. Farrell v. Bridgeport, 82. Fath V. Koeppel, 282. V. Railroad Co., 386. Fatout V. Com'rs, 105. Faulk V. McCartney, 103. laulkner v. Seattle, 443. i CASES CITED. [The figures refer to pages.] 651 Faulkner v. Sisson, 267. Faust V. Huntington, 379. Fa-wcett v. Mt. Airy, 318. Fay V. Improvement Co., 613. Fehler v. Gosnell, 302, 328. Feldman v. Charleston, 466, 467. Fellows V. Walker, 277. Felts V. Memphis, 94, 400. Ferguson v. Chittenden Co., 223. V. Landram, 466. V. Selma, 355, 363. Fernald v. Oilman, 300, 449. Fernandez v. New Orleans, 450. Ferrenbach v. Turner, ooa. Ferriss v. Williamson, 45. Fessler v. Union, 399. Field V. Com., 270, 277. V. Des Moines, 349. Fielders v. Railroad Co., 570. Fields V. Stokley, 349. Fietsam v. Hay, 612. Fifleld V. Phoenix, 411. Finch V. Bangor, 418, 419. V. Railroad Co., 309. Fine v. Stuart, 516. Fink V. Evans, 559. Finley v. Territory, 268, 276. Finn v. Railroad Corp., 543. Finnegan v. Noerenberg, 143. Fire Department of City of New York V. Sturtevant, 359. Fire Department of New York v. Chapman. 359. Fire Extinguisher Mfg. Co. y. Perry, oil. First Division of St. Paul & P. R. Co. V. St. Paul, 340. First Municipality v. Blineau, 239. V. Cutting. 232. 370. First Nat. Bank v. Arthur, 458, 459. V. Board, 457. V. Felknor, 104. V. Gates, 450. V. Sarlls, 239. V. Tyson, 390. V. Yankton, 121, 129. 131. First Parish in Sudbury v. Stearns, 498. First Presbyterian Church v. Ft. Wayne, 473. Fish V. Branin, 160, 197. Fisher v. Boston, 409. V. School Dist., 330. V. Thirkell, 390. Fisk V. Kenosha, 448. Fitch y. Pinckard, 463, 494. Fitchburg R. Co. v. Gage, 563. Fitzgerald v. Railroad Co., 218. Flagg V. Palmyra, 491. V. Parish, 47. V. School Dist, 75. Fleckner v. President, 305. Fleming v. Dyer, 502. V. Mershon, 87. Fletcher v. Lowell, 256. V. Oshkosh. 326. Flewellin v. Proetzel, 326, 473, 474. Flick V. Harpham, 459. Plori V. St. Louis, 432. Floria v. Galveston Co., 54, 55. Florida Cent. & P. R. Co. v. Bell. 547. V. Railroad Co., 384. Flournoy v. Jeffersonville, 284. Floyd v. Com'rs, 250. Floyd Co. v. Railroad Co., 376. Flyuu V. Canton Co., 247. Fockler v. Kansas City, 382. Folley V. Passaic, 510. Folmar v. Custis, 364. Folsom V. Ninety-six, 100. V. Underbill, 381. Foot V. Railroad Co., 568. Foote, Ex parte, 362. V. Cincinnati, 182, 183. V. Railroad Co., 554. Forbes v. Railroad Co., 558. Ford V. Clough, 313. V. Land Co., 339. V. McGregor, 85. V. Mayor, etc., 42. V. North Des Moines, 128, 183. V. Tbralkill. 358. V. Williams, 281. Forn(\v v. Calhoun Co., 379. 380. 652 CASES CITED. [The figures refer to pages.] Forsyth v. Atlanta, 406. V. Dunnagau, 399. Ft. Smith V. Ayers, 350. V. Dodson, 249. V. York, 417. Ft. Wayne v. Rosenthal, 309. Ft. Worth & R. G. R. Co. v. Greer, 559. Foss V. Chicago, 4S5. Foster v. Cape May, 265, 309, 310. V. Fowler, 490. V. Lane, 21. V. Water Co., 410. Foster-Cherry Commission Co. v. Caskey. 478. Fourth School Dist. v. Wood, 94. Fowle V. Alexandria, 406, 411. V. Common Council, 26. Fox V. McDonald, 263. V. Richmond, 290, 299. Foy V. Winston, 424. Frances v. Howard Co., 77. Francis v. Howard Co., 444 V. Troy, 304. Frank, Ex parte, 239. Frankfort Bridge Co. v. Frank- fort, 290. Franklin v. Baird, 87. V. Telephone Co., 576. Franklin Bridge Co. v. Wood, 2, 15, 114, 126, 128. Franlvlin Co. v. Layman, 41. Fraser v. James, 35. Frazee, In re, 176, 238, 249. Frazer v. Chicago, 355. Frederick v. Augusta, 175. Fredericks v. Hoffmeister, 509. Frederick St., In re, 236. Freedle v. Railroad Co., 546. Freedon v. Railroad Co., 543. Freeland v. Hastings, 466. Freeman v. Huron. 443, 451. Freeport Water Co. v. Freeport, 531. French v. Brunswick. 392. Fretwell v. Troy, 367. Frey v. Michie. 225. Friday v. Railroad Co., 555.' Friedman v. Telegraph Co., 614. Frommer v. Richmond, 367, 368. Frost V, Cbicago, 242. V. Railroad Co., 555, 556. Fry V. Albemarle Co., 48, 53. Fryer v. Norton, 273. Fuller V. Academic School, 3. V. Gould, 86. V. Irrigating Co., 607. V. Railroad Co., 561. V. Roberts Co., 83. Fulliam v. Muscatine, 426. Fulton V. Lincoln, 304. Fulton Street, In re. 321. Furhman v. Mayor, 251. G Gabler v. Elizabeth, 496. Gage V. Chicago, 325. V. Evans, 341. Gale V. Kalamazoo, 281, 453. Galena v. U. S., 491. Galena & C. U. R. Co. v. Loomis, 529, 531. Gallia County Com'rs v. Holcomb, 53. Galveston & W. R. Co. v. Galves- ton, 386. Galvin v. New York, 428. Garbutt Lumber Co. v. Railroad Co., 546. Garden City v. Abbott, 235, 368. Gardner v. Dakota Co., 42. Garey v. City, 487. Garfield Co. v. Leonard, 81. Garfield Tp. v. Finuup, 35. Garner v. State, 68. Garrett v. Janes, 383, 393. Garrison v. Chicago, 290. Gartley v. People, 88. Garvie v. Hartford, 259, 269. Garvin v. Daussman, 334. Garza, Ex parte, 367. Gaskill V. Dudley, 145. (xaskins v. Atlanta, 425. Gassett v. Audover, 63. Gaster v. Whitcher, 509. Gates V, Hancock, 302, 325. Gatlin v. Tarboro, 481. CASES CITED. (The figures refer to pages.] 65a Gauld, lu re, 509. Gause v. Clarksville, 66, 294. Gaylord v. New Britain, 428. Gearhart v. Dixon, 89. General Electric R. Co. v. Rail- road Co., 542. Genesee Fork Imp. Co. v. Ives, 618. Gentle v. Board, 104. George v. Light Co., 310. Georgetown v. Com., 519. Georgia v. Stanton, 118. Georgia R. & Banking Co. v. Smith. 522, 531, 533, 614. Gerberling v. Wunnenberg, 379. German American Sav. Bank v. Spokane, 458. German Ins. Co. of Freeport v. Maiming, 443. German Sav. Bank v. Franklin Co., 72, 74, 75. Gianfortone v. New Orleans, 408. Gibbins v. Adamson, 474. Gibson Co. v. Rains, 47, 68, 69. Giesy v. Railroad Co., 551. Gilbert v. Craddock, 507. V. New Haven, 64. V. Paducah, 267. Gilchrist v. Schmidling, 249, 364. Gilchrist's Appeal, 115. Gilder v. Brenham, 381. Gilham v. Wells, 176, 239. Gilkey v. How, 144. Gillett V. Lyon Co., 80. Gillis V. Telegraph Co.. 581. Gillrie v. Loekport, 428. Gilman v. Gilby, 450. V. Laconia, 25, 432. V. Mihvaiikee, 381, 398. V. Sheboygan, 203, 210. Gilmore v. Holt. 304. V. Lewis, 81. 268. V. Utica, 128, 227. Gilson V. Dayton, 75, 76. Giovanni v. Philadelphia, 414. Giozza V. Tiernan, 309. Girard v. Philadelphia, 149, 155, 156, 158, 160. 163, 191, 208, 510, 511. Gladwin v. Ames, 455. Glaessner v. Ass'n, 387. Glascock V. Lyons, 270. Glasgow v. Rowse, 466. Glavey v. U. S., 81. Gleason v. Barnett, 232. Glendinning's Estate, In re, 478. Glenn v. Wray, 449. Glover v. Terre Haute, 154. Goddard, In re, 250. V. Jacksonville, 369. V. Lincoln, 405. V. Railroad Co., 586. Goddard's Case, 246. Godfrey v. Water Co., 486. Goldsmith v. Baker City, 458. Gooch v. Gregory, 496. Goodale v. Fennell, 203, 210, 453. Goodall V. Milwaukee, 331. Goodlor & Smith v. Cincinnati, 331. Goodnow V. Ramsey Co., 66, 68, 69, 111. Goodrich v. Brown, 186. V. Detroit, 300. V. Waterville, 264. Goodwin v. East Hartford, 450. Goodwin Gas Stove & Meter Co.'s Estate, In re, 488. Gordon v. Baltimore, 488. V. Coi'ues, 470. V. Denton Co., 64. V. Preston, 10. V. Richmond, 425. Gordon County Com'rs v. Harris, 268. Gorum v. Mills, 172, 192. (Josselink v. Campbell, 196, 249, 364. Goszler v. Georgetown, 346. Goud V. Portland, 258, 268. Gould V. Illuminating Co., 592. V. Rochester, 181, 434. Governor v. Allen, 3, 94, 108. V. Gridley, 107. Goyne v. Ashley Co., 68. Grady v. Landram, 443. Graham v. Albert Lea, 426. V. Carondelet, 228. 654 CASES CITED. [The figures refer to pages.] Graham v. Greenville, 150. V. Spokane, 443. Granby Mining & Smelting Co. v, liichards, 188. Grand Island Gas Co. v. West, 265, 309. Grand Rapids v. Railroad Co., 293. Grand Rapids E. L. & P. Co. v. Electric Co., 529. V. Gas Co., 582. Grand Rapids & I. R. Co. v. Hei- sel. 569. Grand Trunk R. Co. of Canada v. Richardson, 554. Granger v. Parsons, 89. V. Pulaski Co., 28, 54, 111. Granger Cases, 601, 621. Grannis v. Com'rs, 40, 43, 87. Grant v. Alpena, 262. V. Erie, 409, 410. V. Lindsay, 86. Grant Co. v. Lake Co., 57. Grant County Com'rs v. McKin- ley, 81. Grantham v. State, 204. Graves v. Bloomington, 354. V. Gas Co., 606. V. Shattuck, 383. Gray v. Burr, 322. V. Griffin, 407, 409. V. State, 507. V. Telephone Co., 586. V. Tompkins Co., 67. V. Wilmington, 243. Gray's Ex'r v. Trade Co., 617. Grayson v. Latham, 450. Great Falls Ice Co. v. District of Columbia, 205. Greeley v. Milne, 82. V. People, 402. Greely v. Passaic, 494. Green, Ex parte, 249. V. Cape May, 65, 106, 360. V. Fresno, 178. V. Hotaling, 475. V. New York, 267. V. Savannah, 354. Green v. Ward, 320, 326, 342, 462, 486. (Treenbanks v. Boutwell, 402. Greene v. People, 143. Greenough v. Wakefield, 455. Greeneville &. P. R. Narrow Gauge R. Co. v. Johnson, 113, 114, 128, 188. Greenwood v. Louisville, 409, 417. V. State, 351. Greer v. Asheville, 262. Gregory v. Bridgeport, 227, 312, 313, 320. V. New York, 278. Grenada County Sup'rs v. Brog- den, 73. V. Brown, 65, Grey v. Traction Co., 566, 573. Gribben, In re, 244. Grider v. Tally, 284. Gridley v. Bloomington, 247, 390, 427. Grieb v. Syracuse, 255. Grier v. Homestead Borough, 333. Griffin v. Gloversville, 356, 358, 3.59. v. Water Co., 536, 602, 605. Griggs V. Macon, 365. Grim v. Weissenberg, 466. Grimes v. Keene, 177. Grimmell v. Des Moines, 395. Grinnell v. Telegraph Co., 576. Grogan v. San Francisco, 111, 205, Grossenbach v. Milwaukee, 428. Grube v. St. Paul, 409. Grumon v. Raymond, 282. Grunewald v. Cedar Rapids, 461, 472. Guilder v. Otsego, 207, 216. Guillotte V. New Orleans, 242. Gulf, C. & S. F. R. Co. V. Eddins, 378. V. Hefley, 583. V. Telephone Co., 575. Gulick V. New, 263, 274. Gullikson v. McDonald, 407, 408. Gulline v. Lowell, 422. Gundling v. Chicago, 345, 353. CASES CITED. [The figures refer to pages.] 655 Gurney y. Elevator Co., 554. Gustafson v. Hamm, 3S7. Guthrie v. New Haven, 381. Guttery v. Gleou, 389, 399. Gutzweller v. People, 202, H Haas V. Railroad Co., 360. Hadlej' v. Turnpike Co., 528. Haftord v. New Bedford, 288, 499. Hagar v. Reclamation Dist., 479. Hague v. Philadelphia, 61, 292, 303. Halbut V. Forrest City, 305. Hale V. Biscboff, 271. V. Brown, 105. V. Houghton, 52, 594. V. Kenosha, 472, 489. Halfway River School Dist. v. Bradley, 101, 117. Hall V. Austin, 436. V. Lebanon, 376. V. Moore, 340. V. Taylor, 21. Halsey v. Railroad Co., 542, 591, 592. Ham V. New York, 499. V. Sawyer, 462. Hambleton v. Dexter, 165. Hamilton v. County Ct., 535. v. Keith. 542 V. McNeil, 115. V. Railroad Co., 374, 546. V. San Diego Co., 101. Hamilton Co. v. Garrett, 13, 22, 106. V. Mighels, 11, 33, 28, 32. Hamlin v. Kassafer, 224, 266, 267. Hammett v. Philadelphia, 335, 470, 471. Hammond v. Haines, 192. Hanbury v. Lumber Co., 387. Hand v. Elizabeth, 33S. Hand Gold Min. Co. v. Parker, 524, 620. Handley v. Palmer, 510. Hanger v. Des Moines, 292. Hang Kie, In re, 174. Haniford v. Kansas City, 417. Hankins v. People, 253, 351. Hanley v. Railroad Co., 5(;2. V. Randolph Co. Court, 64. Hannibal & St. J. R. Co. v. Hu- sen, 354. V. Marion Co., 111. V. Muder, 551. V. Totman, 5.50. Hanover School Tp. v. Gant, 105. Hanrtcom v. Burmeed, 249. Hansen v. Hammer, 619. Hanson v. Eastman, 400. v. Vernon, 111, 466. Harbeck v. Toledo, 49. Harbison v. Water Co., 606, 607. Hardenbrook v. Ligonier, 248. Harding v. Goodlet, 618. Hardy v. Railroad Co., 562. Harker v. Mayor, 186. Harkreader v. Stale, 261. Harlem Gaslight Co. v. Mayor, 594. V. New York, 591. Harman v. St. Louis, 406, 41L Harmon v. Chicago, 344, 356. Harney v. Railroad Co., 517. Harrington v. Railroad Co., 392. Harris v. People, 221. v. School Dist., 13, 21, 22, 28, 93, 102. Harris Franklin & Co. v. Lay- port, 488. Harrison v. Baltimore, 347, 355. V. Brooks, 356. v. Chicago, 327. V. Palo Alto Co., 57. V. Vicksburg. 464, 471. Harshman v. Bates Co., 71, 72, 100. Hart V. Bridgeport. 408. V. Henderson, 486. V. Mayor, 355, 363. V. New Orleans, 490. Hartford Bridge Co. v. East Hart- ford, 1.57, 208, 209. Hartford County Com'rs v. Wise, 429. Hartford Tp. v. Bennett, 264. 656 CASES CITED. [The figures refer to pages.] Hartman v. Wilmington, 509. Hartnall v. Com'rs, 109. Harvard College v. Boston, 340, 475. Harvey v. Dewoody, 282, 355. V. Tama Co., 54. Hasbrouck v. Milvi^auljee, 61, 92, 212, 442. Haskell, Ex parte, 244. v. Button, 267. v. New Bedford, 434. Haswell v. New York, 255. Hatch V. Mann, 81. Hathaway v. New Baltimore, 178. Haugen v. Water Co., 605. Haverford Electric Light Co. v. Hart, 592. Hawes v. Chicago, 241, 243. Hawk V. Marion Co., 40. Hawkins v. Carroll Co., 68. V. Jonesboro, 149, 207, 267. V. Justices, 48. V. Sanders, 393. Hawley v. Atlantic, 424. Hawthorne v. East Portland, 474. Hawver v. Seldenridge, 266. Hayes, Ex parte, 366, 370. V. Bouglas Co., 470. V. Oshkosh, 287, 409, 499. V. I'orter, 283. V. r.ailroad Co., 361. v. ^^'est Bay City, 423. Haynes v. Cape May, 240, 367. Hayter v. Benner, 264. Hayward v. Davidson, 37. Hayv.'ood v. Wheeler, 263. Hazen v. Lerche, 102. V. Strong, 347. Haz::arfl v. Heacock, 342. Head v. Insurance Co., 60, 305. V. T'niversity, 14. Healey v. Kelly, 376. Hecht V. Coale, 221. Heck V. McEwen, 113, 128. Hedderich v. State, 309. Hedges v. Dixon Co., 74. Heed v. Com'rs, 73, 77. Hefferlin v. Chambers, 67. Hefifran v. Hutchins, 277. Heidler, In re, 152. Heilbron, Ex parte, 354. Heilman v. Railroad Co., 557. Heine v. Com'rs, 166. Heineck v. Grosse, 381, 390. Heiple v. East Portland, 375. Heiserman v. Railroad Co., 562. Heiskell v. Baltimore, 219, 223. Heland v. Lowell, 111, 116, 179, 196, 231. Held v. Bagwell, 284. Hellen v. Noe, 355, 363, 364. Heller v. Sedalia, 409, 410. V. Shawnee Co., 54. V. Stremmel, 19, 111, 115. Ilelple V. East Portland, 374. Ileman Const. Co. v. McManus, 338. Henderson v. Baltimore, 462. V. Minneapolis, 394. Henderson Bridge Co. v. Hender- son, 461, 474. Henderson Co. v. Dixon, 81. Hendricks v. State, 255. Henkel v. Detroit, 374, 375. Henkle v. Bussey, 508. Henley v. State, 613. Ilennessy v. St. Paul, 359. Henry v. Cohen, 47. Hentz V. Railroad Co., 553. Hepburn v. Jersey City, 595. Ilequembourg v. Dunkirk, 442. Herman v. Oconto, 234, 443. Herrell v. Railroad Co., 545. Herrick v. Randolph, 463. Hertzler v. Cass Co., 488. Hesing v. Scott, 3SS, 517. Heslep V. Sacramento, 81, 269. Hesselbach v. St. Louis, 424. Hewes v. Reis, 325. Hewitt v. School Dist, 315, 320. Hey wood v. Buffalo, 341. ITibbard v. Clark, 248. Hibbard, Spencer, Dartlett & Co. V. Chicago, 383. 384. Hickok V. Hine. 551. Hickox V. Cleveland, 406. Hicks V. Com'rs, 223. Hieronymus v. Supply Co., 606. CASES CITED. [The figures refer to pages.] 657 Hiestand v. New Orleans, 488. Higgins V. Ausmuss, 342. V. Chicago, 502. V. Water Co., 299. Higginson v. Nahant, 396. Highland Boy Gold Min. Co. v. Strickley, 553. Highland County Com'rs v. Rhoades, 39, 40. night V. Monroe Co., 55. Hightower v. Thornton, 3. Highway Com'rs of Niles Tp. v. Martin, 55. Higley v. Bunce, 233. Hildreth v. Lowell, 395. V. Water Co., 594. Hildreth's Heirs v. Mclntire's Devisee, 224. Hill V. Abbeville, 365, 366. V. Board, 430. V. Boston, 25, 110, 407, 410, 417, 518. V. Forsythe Co., 89. V. Higdon, 133. V. Memphis, 56, 319, 320. V. New York, 411. V. Railroad Co., 553. V. Swinney, 103. T. Territory, 262. V. Warrell, 395, 472. Hilliard v. Bunker, 86, 87. Hinchman v. Railroad Co., 569, 571. Hinckley v. Somerset, 424. nine V. New Haven, 49, 357, 358. V. Railroad Co., 392. Hines v. Leavenworth, 335. V. Lockport, 109. Hinkle v. Railroad Co., 544. Hirth V. Indianapolis, 334. Hiss V. Railroad Co., 392, 523. Hitchcock V. Galveston, 227, 293, 294, 29G-29S, 473. V. St. Louis, 464, 482. Hoadlcy v. Com'rs, 2. Hobart v. Detroit, 306. V. Railroad Co., 302, 556. V. Sup'rs, 59, 67, 139, 184. Tno.Cokp. — 42 Hobbs V. Yonkers, 81. Uucicett v. 8taie, 522, 523, 532, 581. Hodges V. Bufifalo, 296, 302, 455. V. Nashville, 350. V. Rnnyan, 281. V. Telegraph Co., 368. Hodgman v. Railroad Co., 514, 516. Iloifman v. Jersey City, 241, 371. Hogan V. Collins, 278. Hoggatt v. Bigley, 282. Hoke V. Henderson, 263, 272, 273. Holbert v. Railroad Co., 548. Holdane v. Cold Spring, 381. Holden v. Alton, 276, 310. Holderness v. Baker, 265. Holdom V, Chicago, 329. Ilolladay v. Frisbie, 490. Holland v. Baltimore, 87. V. Mayor, 517. V. State, 128, 227. Hollenbeck v. Winnebago Co., 25, 48. Holliday v. Hilderbrandt, 101. V. People. 204. HoUingsworth v. Detroit, 68. V. Virginia, 130. Holman, Ex parte, 491. V. State, 143. Holmes v. Hyde Park, 337. Holmes & Bull Furniture Co. t. Hedges, 101. Holniquist, Ex parte, 237. Holt Co. V. Scott, 264. Molten V. Lake Co., 42. Home Ins. Co. v. Augusta, 204. V. Board, 479. V. City Council, 204. Homer v. Blackburn, 303. Home Savings ircCoy V. State, .503. McCracken v. Lavalle, 280. 066 CASES CITED. [The figures refer to pages.l McCrary v. Beaudry, 099. McCrowell v. Bristol, 113, 226, 411, 412. McCue V. Wapello Co., 84, 269. McCuIloch V. Ayer, 359. V. Maryland, 114, 130, 150, 460, 463, 475. McCullough V. Mayor, 451. McCune v. Gas Co., 11. McDade v. Chester, 411. McDaniel v. Waterworks Co., 607. McDermott v. Boston, 436. McDonald v. Ashland, 420. V. Mayor, 292, 304. V. Murphree, 341. V. Newark, 270. V. New York, 62, 444. V. Red Wing, 50. V. Troy, 424. McDonough v. Virginia City, 417. McDonough County v. Thomas, 45. McDonough' s Ex'rs v. Murdoch, 163, 196. McDowell V. People, 325. McElhinney v. Superior, 265. McBlroy v. Albany, 407. McGann v. People, 387. McGavock v. Omaha, 232. McGee, Appeal of, 205, 388. V. Salem, 204. McGehee v. Mathis, 335. McGehee Irr. Ditch Co. v. Hud- son, 619. McGillivray v. District, 456. McGinnis v. Inhabitants, 415. McGovern v. Board, 308. McGraw v. Whitson, 231. McGrew v. Stewart, 377. McGuire v. Spence, 422, 427. McHugh V. St. Paul, 425. Mclnerney v. Denver, 250, 251, 253. V. Iluolefeld, 482. Mclnerny v. Reed, 510, 511. Macintosh v. Nome, 376. Mackay v. San Francisco, 477. McKee V. Court, 509. V. McKee, 249, 364. McKee v. Pendleton, 327. V. Perchment, 379. McKenna v. Boston, 379. McKeon v. Railroad Co., 558. McKevitt V. Hoboken, 387. McKey v. Hyde Park, 379. McKibbin v. Ft. Smith, 358, 372, 565. Macklin v. Trustees, 105. McLam-en v. Grand Forks, 323. McLoud V. Selby, 14. McMillan v. Richards, 271. McMinnville v. Stroud, 373. McNamara v. Estes, 473. McNulty V. New York, 287. V, Toopf, 236. Macomber v. Taunton, 423. McPeeters v. Blankenship, 68. McPherson v. Chebanse, 237. V. Foster, 15, 74, 114. McRea v. Mayor, 253. V. Olain, 364. McTeer v. Lebow, 282. McVeany v. Mayor. 83. V. New York, 82, 83. McVey v. Barker, 364. McWethy v. Power Co., 385. Macy V. Duluth, 309, 310. Madden v. Lancaster Co., 54. Maddox v. Graham, 70, 304, 491. Madera Irr. Dist., In re, 619. Madison Co. v. Bartlett, 68. V. Gibbs, 62. Madry v. Cox, 159. Magaha v. Hagerstown, 382. Magee v. Brooklyn, 434. v. Commonwealth, 338. Maggie P., The, 289. Magie v. Stoddard, 274. Maginnis v. Ice Co., 541, 546, 614. Masneau v. Fremont, 219. 222. Mahady v. Railroad Co., 376. Mahan v. Telephone Co., 577, 587. Maher v. Chicago, 290, 299. Mahoney v. Bank, 146, 147. Main v. Ft. Smith, 223, 227. Makley v. Whitmore, 341. Malone's Estate, In re, 197. Maloy V. Marietta, 133, 473. i CASES CITED. [The figures refer to pages.] 667 Maltby v. Tautges, 207. Mangam v. Brooklyn, 257. Manhattan Co. v. Ironwood, 70. Manhattan Life Ins. Co. v. Broughton, 74. Manhattan Mfg. & Fertilizing Co. V. Van Keuren, 355. Manhattan Transp. Co. v. Mayor, 414. Manning v. Den, 342. V. Telephone Co., 577. V. Wells, 614. Manor v. State, 82. Manuel v. Com'rs, 110. Manufacturers' Ins. Co. v. Loud, 479. Marble Co. v. Harvey, 295, 299, 495. Marcy v. Oswego Tp., 77. Marion Co. v. Coler, 501. V. Grundy Co., 36. Marion Water Co. v. Marion, 321. Mark v. State, 238. Markey v. Queens Co.. 55. Markham v. Brown, 52, 354. Markle v. Akron, 116. V. Town Council, 231. Marr v. Telegraph Co., 523, 576, 578. Marsh v. Fulton Co., 58, 63-65, 71, 72, 74, 75, 298, 299, 304. V. Supervisors, 481. Marshall v. Board, 507. V. Ellwood, 310. Marshall Co. v. Schenck, 73. Marshall County Sup'rs v. Cook, 68. Marshall & Bruce Co. v. Nash- ville, 310. Martin v. Cole, 89. V. Dix. 476. V. Gleason, 347. V. Mayor, 310. V. Tyler, 334. Martindale v. Palmer, 221, 233. Maryland v. Railroad Co., 204, 515. Mason v. Cumberland, 367. V. Mining Co., 8. V. Shawneetown, 111, 116, 231. ▼. Sioux Falls, 324. V. Wait, 131. Mather v. Ottawa, 467. Mathews v. Kelsey, 384. Mathewson v. Grand Rapids, 326. Matthews v. Alexandria, 113, 227. V, Sup'rs, 84. Matthis V. Cameron, 450. Mattox V. State, 127. Mauch Chunk v. Kline, 428. Maupin v. Franklin Co., 58. Maury Co. v. County, 39. Maxmilian v. Mayor, 214, 410, 414. V. New York, 410, 499. Maxwell v. Board, 507. V. Jonesboro, 366. Mayall v. St. Paul, 473. Maydwell v. Louisville, 46&. Mayfield v. Moore, 83, 270. Mayfield Woolen Mills v. May- field, 461. Mayhew v. Gay Head Dist, 228. Mayor v. Com'rs, 396. v. Ray, 319. Mayor, etc., of Americus v. El- dridge, 387. Mayor, etc., of Annapolis v. Har- wood, 462, 472. Mayor, etc., of Atlanta v. Rail- road Co., 547. Mayor, etc., of Baltimore v. Esch- baeh, 286, 287. V. Gill, 513. v. Mu^grave. 286. V. Poultney, 353. V. Radecke, 238. V. State, 205. Mayor, etc., of Birmingham v. Land, 434. V. Lewis, 421. 423, 424. V. Rumsey, 496. V. Starr. 420. Mayor, etc., of Cartersville v. Ba- ker, 400. 608 CASES CITED. [The figures refer to pages.] Mayor, etc., of Cbattauooga v. State, 518, 519. Mayor, etc., of Columbus v. Ja- ques, 398. Mayor, etc., of Griffin v. Johnson, 431. Mayor, etc., of Knoxville v. Water Co., 234. Mayor, etc., of Macon v. Huff, 898. V. Shaw, 278. Mayor, etc., of Memphis v. Win- field, 238. Mayor, etc., of Mobile v. Allaire, 351. V. Moog, 114. V. Squires, 286. Mayor, etc., of Monroe v. Hoff- man, 358. Mayor, etc., of Montezuma v. Wil- son, 419. Mayor, etc., of Nashville v. Brown, 436. V. Ray, 294. Mayor, etc., of New Orleans v. Hopkins, 198. V. Morgan, 276. Mayor, etc., of New York, In re, 397. Mayor, etc., of New York v. Bai- ley, 347. V. Bank, 205. V. Britton. 346. V. Crawford, 495. V. Nichols, 241. V. Railroad Co., 350.'^ Mayor, etc., of Rome v. Cabot, 347. Mayor, etc., of Savannah v. Hus- sey, 235. Mayor, etc., of Worcester v. Rail- road Co., 549. Mayor of Baltimore v. Scharf, 11.3. V. State. 163. Mayor of Franklin v. Maberry, 473. Mayor of Hull v. Horner, 117. Mayor of ^Mobile v. Dargan, 472. V. Moog, 15. Mayor of Nashville v. Linck, 363. V. Ray, 447, 451. Mayor of New York v. Ordrenan, 361. Mayor of Rome v. McWilliams, 444. Mays V. Cincinnati, 235, 462, 483, 485. Maywood Co. v. Maywood, 382, 394. Meacham v. Railroad Co., 555. Mead v. New Haven, 499. V. Roxboro, 478. Meads v. Belt Copper Mines, 509. Meagher v. Storey County, 269. Meaher v. Chattanooga, 371. Meares v. Coip'rs, 413. V. Wilmington, 417. Medical Inst. Geneva College v. Patterson, 190. Meehan v. Board, 269. Meggett V. Eau Claire, 327. Megowan v. Commonwealth, 174. Melvin v. Lisenby, 515. Memphis v. Brown, 81, 207. V. U. S., 203. Memphis Bell Tel. Co. v. Hunt, 590. Memphis Gaslight Co. v. Mem- phis, 290. Memphis News Pub. Co. v. Rail- road Co., 617. Memphis, P. P. & B. R. Co. v. State, 554. Memphis & C. R. Co. v. Lyon, 558. Memphis & O. R. Packet Co. v. McCool, 617. IMenasha v. Hazard, 100. :Mendel v. Wheeling. 409. Mendenhall v. Burton, 143, 149. ]\Iendocino Co. v. Bank, 204. ^lenken v. Atlanta, 252. .Mercantile Trust Co. v. Railroad Co., 579. Pierced County v. Fleming, 241. Mercer Co. v. Hackett, 68. v. Trust Co., 74, 75. CASES CITED. [The figures refer to pages.] 669 Mercer v. Railroad Co., 49, 198, 199. Merchants' Exch. Nat Bank v. Beigen Co., 60, 69, 74, 75. Merchants' Union Barb Wire Co. V. Railroad Co., 230, 232. Meredith v. U. S., 488. Merger Case, 621. Meriwether v. Garrett, 148, 160, 162, 166, 168, 192, 313, 463, 480, 489, 490. Merriclc v. Plank Road, 305. V. Railroad Co., 392. Merrill v. Monticello, 319, 448, 565. Merrimack River Sav. Bank v. Lowell, 591. Merritt v. Port Chester, 323. Mersey Dock Cases, 177. Mersey Dock Trustees v. Gibbs, 109. -Metcalf V. St. Louis. 231. V. State, 246, 370. Metropolitan Board of Health v. Heister, 181. Metropolitan Grain & Stock Exch. V. Board of Trade, 606. Metropolitan R. Co. v. Railroad Co., 556. Metropolitan Trust Co. v. Power Co., 590. Metropolitan West Side El. R. Co. V. GoU, 554. Metzger v. Railroad Co., 514. Meyer v. Lincoln, 384. V. Fromm, 233, 234. Meyers v. Electric Co.. 386. V. Railroad Co., 559. Michaels v. Railroad Co., .543. Michel V. New Orleans, 82, 270. V. Police Jury, 328. Michener v. Philadelphia, 337. Michigan City v. Phillips. 426. Michigan State Bank v. Hastings, 119. Michigan, S. & N. I. R. Co. v. McDonough, 544. Michigan Telephone Co. v. Char- lotte, 386, 587, 588. Middleton v. Greeson, 103. Middletow^n v. Berlin, 89. Midway v. Lloyd, 426. Milam Co. v. Bateman, 79. Milarkey v. Foster, 376. Milbridge & C. Electi-ic R. Co.. Appeal of, 556. Milford V. W'ater Co., 309. Milhau V. Sharp, 319, 385, 453, 570. Milledge v. Kansas City, 420. Miller, In re, 248. V. Board, 66, 447. V. Bowers, 517. V. Buena Vista Co., 62. V. Bui'ch, 235. V. Camden, 152. V. Committee, 502. V. Fire Co., 258. V. Greaves, 507. V, Merriam, 67. V. Milwaukee, 300. V. O'Reiley, 250. V. Railroad Co., 554. Miller & Meyers v. Newport News, 411, 434. Milliken v. Weatherford, 240. Mills V. Brooklyn, 394, 411, 412, 431. V. Charleston, 469. V. Gleason, 65, 66, 72, 263, 315, 446, 447, 456. V. Thornton, 85, 476. V. Williams, 12, 113, 148, 182. Mills Co. V. Brown, 157. Millville Borough, In re, 148. Milne v. Davidson, 111. Milwaukee & N. R. Co. v. Strange, 568. Mims V. West, 75. Mindermann v. Tillyer, 272. Miners' Bank v. Iowa, 120, 129, 131. Miners' Ditch Co. v. Zellerbach, 0, 11, 294. 303, 522, 527, 594. Minneapolis Gas Light Co. v. Min- neapolis, 226. Minneapolis & St. L. R. Co. v. Beckwith, 353. 670 CASES CITED. [The figures refer to pages.l Minneapolis & St. L. R. Co. v. Commission, 612. V. Railroad Co., 551. Minnesota Co. v. St. Paul Co., 477. Minnesota Linseed Oil Co. v. Palmer, 483. Miuuetonka Dam, In re, 509. Minot V. West Roxbiny, 401. Mirande, Ex parte, 222, 365, 366. Mississippi, O. «& R. R. Co. v. Camden, 448. Mississippi River Bridge Co. v. Ring, 548. Mississippi & Rum River Boom Co. V. Patterson, 555. Missouri v. Telephone Co., 577. 581, 606. Missouri. K. & T. R. Co. v. Cam- bern, 619. Missouri Pac. R. Co. v. Humes, 533, 542, 549. T. Nebraska, 554. v. Wyandotte, 323. Missouri River, Ft. S. & G. R. Co. V. Owen, 549. Mitchell V. Bm-lington, 523, 616. V. Com'rs, 40. V. Lake Tp., 476. V. Rockland, 292, 413. V. Rome, 391. V. Wiles, 513, 516. Mitchell Co. v. Bank, 75. Mitchell County Sup'rs v. Hor- ton, 219. Mobile County v. Kimball, 471. Mobile & G. R. Co. v. Williams, 543. Mobile & O. R. Co. v. Cable Co., 575, 585. Modoc Co. V. Madden, 84. V. Spencer, G2. Moffitt V. Asheville, 406, 407. Molineux, In re, 275. Monaghan v. Philadelphia, 496, 497. Monk V. New Utrecht, 421. ISIonroe v. Lawrence, 115, 195, 353. Monroe Co. v. Flynt, 53. Montezuma Valley Water Co. v. Bell, 488. Montgomery City Council v. Par- ker, 389. V. Plank Road Co., 296. Montgomery Co. v. Barber, 39, 40, 61, 62, 64, 304. V. Menefee, 157. Montgomery Coimty Com'rs v. Coftenberry, 55. Montgomery & B. R. Co. v. Thompson, 572. Montpelier Academy Trustees v. George, 166. Aioon V. Howard Co., 54. v. Ionia, 421, 427. looney v. Clark, 517. V. Luzerne, 428. Moore V. Eufaula, 580. V. Huntington, 417. V. Jonesboro, 228. V. Los Angeles, 437. V. New York, 75, 286, 294- 296. V. Perry, 219, 222, 509. V. Seymour, 506. V. State, 249. Moran v. Car Co., 411. V. Long Island City, 161. V. Miami Co., 71, 78. 74. V. New Orleins, ??>7. Moreland v. Passaic, 304, 306, 310. Morey v. Newt'ame, 2ij. Morford v. Territory, 82. v. Unger, 85, 112, 148, 156, 464, 465. Morgan v. Beloit, 156, 158. V. Parham, 477. Morgan County v. Seaton, 45. Morgan County Com'rs v. Hol- man, 42. Mor.i;antown Deposit Bank v. Johnson, 81. Morrell v. Sylvester, 495. Morris v. Cummings, 485. V. Rome, 174, 369. v. State, 105, 167, 313. 1 CASES CITED. [The figures refer to pages.] 671 Morris County Com'rs v. Hinch- man, 65. Morrison v. Casey, 488. V. Coushohocken, 381. V. Davis, 544. V. Decatur Co., 54. V. Formau, 548. V. Lawrence, 499. V. Morey, 107. Morrow Co. v. Hendryx, 157. Morse v. Lowell, 257. V. Norfolk Co., 509. V. Omaha, 323. Morse, Williams & Co. v. Baake, 508. Morton v. Carlin, 276. V. Nevada, 63. Moser v. Boone Co., 80. V. White, 87, 89, 486. Mosher v. School Dist., 206, 444. Mosier v. Navigation Co., 555. Moss V. Cummings, 281, 284. V. Ridge Tp., 298. Mostyn v. Fabrigas, 281, 282. Mott V. Hicks, 64, 281. V. Railroad Co., 454. Moulton V. Scarborough, 405, 414, 498. Moultrie Co. v. Rockingham Sav. Bank, 38, 71, 74, 76. Mt. Hope Cemetery v. Boston, 196, 199. Mt Pleasant v. Beckwith, 138, 156, 158, 159, 168, 207, 313, 515. Mt. Washington Road Co., In re, 546. Mower v. Leicester, 20, 25, 26, 54, 98, 417. Mowery v. Salisbury, 373. Mowry v. Mowry, 98. Mueller v. Cavour, 99. V. Egg Harbor, 220. Mugler V. Kansas, 50, 535. Muhlenbrinck v. Long Branch, 365. Muhlker v. Railroad Co., 552. INIullen V. Rutland, 4.30. Mulligan v. New Britain, 423. I Muncie Nat. Gas Co. v. Muncie, 600. Municipality No. 1 v. Dubois, 368. V. Wilson, 355. Municipality No. 2 v. Dunn, 336. Municipality No. 3 v. Cotton Press Co., 400. Municipal Secui'ity Co. v. Baker Co., 41, 58. Munn V. Illinois, 5, 14, 51, 111, 195, 522, 524, 529-531, 536, 596, 601, 610, 611, 618, 621. V. People, 536, 596. Munsell v. Carthage, 356. Muuson V. I'enno, 251. Murphy v. Com'rs, 47. V. East Portland, 516. V. Louisville, 62, 326. V. Lowell, 177. V. Napa Co., 56. V. Ramsey, 121. V. Steele Co., 80. Muscatine Turn Verein v. Funck, 182. Musick V. Latrobe, 421. Muskego V. Com'rs, 619. Mutual Union Tel. Co. v. Chicago, 385. Myers v. Irwin, 190. V. Jeffersonville, 292. V. People, 195. My rick v. Railroad Co., 561. N Nading v. Railroad Co., 550. Naegle v. Ceutralia, 227. Nalle V. Austin, 298. 442. Napier v. Poe, 128. Napman v. People, 240, 252, 494. Narberth Borough, In re, 112 Nashville v. Ray, 06. V. Sutherland, 58. Nashville, C. & St. L. R. Co. v. Atlanta, 366. V. Franklin Co., 88. V. Hodges, 88. G72 CASES CITED. [The figures refer to pages.] Nashville, C. & St L. R. Co. v. State, 572. Nashville «& C. R. Co. v. Cowar- din, 551. v. David, 543. v. ?\owliu, 558. Nashville & C. & St. L. R. Co, ▼. Franklin County, 46. Nashville & K. R. Co. v. Wilson County, 48. Nason v. Whitney, 487. Natal V. Louisiana, 371. Nation v. Railroad Co., 547. National Bank of Commerce v. Greuoda, 234. National R. Co. v. Railroad Co., 552. National Water Works Co. v. Kansas City, 598, 599. Nazworthy v. Sullivan, 356. Nealis v. Hayward, 361. Nebraska Telephone Co. v. Light Co., 587. V. State, 536, 577, 581. V. Telephone Co., 581, 587. Neenan v. Smith, 470. Neff V. Wellesley, 410, 414. Neiraan v. St. Bernard, 308. Nelson v. Carter County, 4&. v. Godfrey. 390. V. Haywood Co., 59. V. Justices, 490. V. Mayor, 444. V. St. Martin's Parish, 203, 210. Nevins v. Peoria, 413. New Albany & S. R. Co. v. Til- ton, 531. Newark Aqueduct Board v. Pas- saic, 356. Newark City Bank v. Assessors, 186. New Bedford & F, S. R. Co. v. Railroad Co., 161. Newburyport Turnpike Corp. v. Railroad Co., .543. New Castle v. Rearic, 306. New Central Coal Co. v. Iron Co., 558. New Decatur v. Berry, 302, 326. Newell V. Railroad Co., 570. New England Telephone & Tele- graph Co. V. Terminal Co., 345, 582. New Haven v. Railroad Co., 510. New Iberia v. Fontelieu, 322. New Jersey v. Yard, 185. New Jersey R. & Transp. Co. v. Newark, 339. Newman v. Emporia, 230, 474. New Memphis Gas & Light Co. v. Memphis, 530, 534. New Orleans City & L. R. Co. v. Board, 516. New Orleans Gaslight Co. v. Heat Co., 605. V. Mfg. Co., 597, 598. New Orleans Gaslight & Banking Co. V. Paulding, 599. New Orleans, M. & C. R. Co. v. Dunn, 512. V. New Orleans, 198, 199. New Orleans, M. & T. R. Co. v. Ellerman, 209. New Orleans, S. F. & L. R. Co. v. Delamore, 547. New Orleans Water Works Co. v. Rivers, 529, 597. Newport v. Phillips, 312. Newport Charter, In re. 256, 259. New Providence Tp. v. Halsey, 77. Newson v. Galveston, 370. Newton v. Commissioners, 480. V. Keech, 514. V. Railroad Co., 552. New York Cable Co. v. New York, 548. New York Cement Co. v. Cement Co., 616. New York Cent. R. Co., In re, 49. New York Cent. & H. R. R. Co., In re. 551. V. Gaslight Co., 551. New York Elevated R. Co., In re, 128. New York Fire Dept. v. Kip, 112, 184. I CASES CITED. [The figures refer to pages.] 673 New York, H. & N. R. Co. v. Railroad Co., 551. New York. N. H. & H. R. Co., Appeal of, 550. V. Long, 549. V. Traction Co., 612. V. Wheeler, 28G. New York, W. & R. R., In re, 555. New York & B. B. Ry. Co., In re, 552. New York & E. R. Co. v. Young, 549. New York & H. R. Co. v. Kip, 528, 546, 549, 551, 614. New York & N. E. R. Co. v. Bris- tol, 384, 530, 533, 552, 560. V. Waterbury, 232. New York & N. E. R. Co.'s Ap- peal from Railroad Com'rs, 533, 559. Niagara Falls & W. R. Co., In re, 540. 613, 615. Niblett V. Nashville, 427. Nichol V. ]\Iayor, 111. V. Nashville, 196, 214, 301, 596. Nichols V. Bridgeport, 335, 466. V. MacLean, 82, 270. V. Railroad Co., 546, 548, 549, 557. Nicholson v. Railroad Co., 392. Nickerson v. Dyer. 287. Nicoulin v. Lowery, 354. Nietzel T. Concordia, 250. Niles Water Works v. Mayor, 444, 445. V. Niles, 197. Nisbet V. Atlanta, 408. Niver v. Bath, 337. Noble V. Amoretti, 489. V. St. AlliJins. 394. Nobles V. Piollett. 508. Noel V. San Antonio, 311. Noel Young Bond & Stock Co. v. Mitchell Co.. 73. Nolan Co. v. Simpson, 459. Nolen V. State. 507. IXG.Cor.r. — 43 Nolin V. Franklin, 366. Noll V. Railroad Co., 49. Nordyke & Marmon Co, v. Mc- Conkey, 508. Norfleet v. Cromwell, 525, 619. Norfolk City v. Ellis, 335. Norfolk County Sup"rs v. Cox, 42. Norlolk & W. R. Co. v. Pennsyl- vania, 583. Norris v. Mayor, 156. V. School Dist., 104. Northampton Co. v. Railroad Co., 204. North Carolina & R. & D. R. Co. V. Railroad Co., 552. Northern Indiana R. Co. v. Con- nelly, 473. Northern Liberties v. St. Johns Church, 339. Northern Nat. Bank v. Porter Tp., 77. Northern Pac. R. Co. v. Dustin, 572. V. Lake, 387, 398. v. Spike, 559. V. Spokane, 276. V. Washington, 572. Northern R. Co. v. Earhardt, 556, Northern Securities Case, 562. 504. Northern Securities Co. v. U. S., .562, 564, 621. Northern Transp. Co. v. Chicago. 217, 328, 378, 430, 529, 50.-.. North Missouri R. Co. v. Gott, 547. V. Maguire, 205, 212. North Pacific Lumber & Mfg. Co. V. East Portland. 327, 378. North River Electric Light & Power Co. v. New York, 300. Northwestern Fertilizing Co. v. Hyde Park, 505. Northwestern Lumber Co. v. Ab enleen, 451, 458. V. Chphallis Co., 85, 478. Northwestern Telephone Exch. Co. V. Railroad Co., 575, 585. 674 CASES CITED. tTlits figures refer to pages.l Northwest Union Packet Co. v. Shaw, 294. Norton v. Dyersburg, 301. V. Shelby Co., 56, 70, 74, 224, 225, 266, 267. Norwich Gaslight Co. v. Gas Co., 597. Norwood V. Baker. 339. No well V. Wright, 2S1, 283. Nowlen V. Benton Harbour, 341. Nugent V. Railroad, 526. Nunemacher v. Louisville, 265, 309. Oakes v. Hill, 179. Obion County Court v. Marr, 86. O'Brien v. Erie, 386. V. Louer, 359. V. New York, 274. V. Thorogood, 221. O'Connor v. Pittsburgh, 331, 332, 529, 582. V. Walsh. 221. Oconto City Water Supply Co. v. Oconto, 483. Odell V. Atlanta, 51, 365. V. Bretney, 388. Ogden V. Daviess Co., 71, 72. V. Raymond, 2.55, 287. Ogden City v. McLaughlin, 51, 115, 195. Ogg V. Lansing, 408. O'Hara v. New Orleans, 61. V. Park River, 234. Ohio Coal Co. v. Whitcomb, 617. Ohio Life Ins. & Trust Co. v. Trust Co., 295. Ohio & M. R. Co. V. People, 572. V. Yohe, 543. Oil City V. Trust Co., 368. Oklahoma City v. Meyers, 424. Olcott V. Sup'rs, 141, 528, 540, 543. Old Colony R. Co. v. Fall River, 341. Old Colony Trust Co. v. Wichita, 587. O'Leary, Ex parte, 356. Oliver v. City Council, 278. Oliver v. Washington Mills, 481. V. Worcester, 5, 197, 377, 423, 493, 498. Oliver Cemetery Co. v. Philnrli'l- phia, 339. Olmsted v. Dennis, 284. Olney v. Pearce, 264. Olson V. Worcester, 429. Omaha v. Cunningham, 423. O'Malia v. Wentworth, 250. O'Meara v. Green, 327. Ontario Bank v. Bunnell, 479. Opening First Street, In re, 319. Opinion of Justices, 595. Opinion of Supreme Court Judges. 36. Orange & A. R. Co. v. Alexandria, 479. Oregon Cascade R. Co. v. Baily, 548. Oregonian R. Co. v. Hill. 546, 614. O'Reilley v. Kingston, 338. Orman v. People, 503. O'Rourke v. New Orleans, 348. Oroville & V. R. Co. v. Plumas, 185. V. Sup'rs, 140. Orr V. Omaha, 321. Orth V. Milwaukee, 429. Osborn v. President, 130. Osborne v. Adams Co., 72, 467, 524. V. Mobile, 86. Osburn v. Chicago, 357. Oshkosh Waterworks v. Oshkosh, 173. Ostrander v. Lansuig, 394 Otis v. Lane, ^il»7. Otoe Co. V. Baldwin, 65, 70, 73. Ott V. State, 221. Ottawa County Com'rs v. Nelson, 157. Ottawa Gaslight & Coke Co. v. People, 41. Ould V. Richmond, 227, 319. Over V. Greenfield, 305, 567. Overman Silver Min. Co. v. Cor- coran, 620. CASES CITED. [The figures refer to pages.] 676 Overseers of Poor of Boston v. Sears, 107. Overseers of Poor of Norwich v. Pliarsalia, 303. Owen County Com'rs v. Spangler, 87. Owens V. Lancaster, 434. Owensboro Gaslight Co. v. Hilde- brand, 524, 536, 593. Oyster v. Bank, 508. Pacific Bridge Co. v. Clackamas Co., 54. Pacific Coast Sav. Soc. v. San Francisco, 477. Packard v. Hayes, 304. Padavano v. Fagan, 233, 501. Padelford v. Eagle Grove, 426, 427. Page V. Hardin, 270. V. Railroad Co., 560, 570, 572. Page Co. V. County, 43. Paige V. Fazackerly, 242, 371. Paine v. Boston, 235. V. Spratley, 489. Palmer v. Danville, 472. V. Electric Co., 591, 592. V. Fitts, 28, 206. V. Pettingill. 488, 489. V. Portsmouth, 437. V. Stumph, 335. Pancoast v. Troth, 160. Papworth v. Milwaukee, 390. Paris Electric Light & R. Co. v. Telephone Co., 592. Parish v. Golden, 325. Parish Board of School Directors V. Shreveport, 456. Parker v. Challis, 338, 473. V. Dakota Co., 82. V. Hotel Co., 8, 9. V. Macon, 363, 416. V. New Brunswick, 374, 486, 523. V. Zeisler, 156. Parkershurg Gas Co. v. Parkers- burg, 598. Parks V. Ross, 280. Parr v. Greenbush, 102, 312. Parrott v. Bridgeport, 504. Parsel v. Barnes, 286, 302. Parsons, In re, 269. V. Goshen, 21. V. Monmouth, 301. V. University, 381. Paterson v. Barnet, 226. Paterson Gaslight Co. v. Brady, 599. Patterson v. Austin, 424. V. Boom Co., 49, 525, 618. V. Pittson, 557. V. Taylor, 503. Patton V. Chattanooga, 392. V. Stephens, 292. Paul V. Kenosha, 63, 295. V. Walkerton, 153. Paulson V. Pelican, 428. Pauly Jail Bldg. & Mfg. Co. v. Com'rs, 67. Paxton V. Bogardus, 320. Payne v. English, 276, 511. V. Goldbach, 612. V. Treadwell, 206. Peake v. Superior, 419. Pearsall v. Railway Co., 532. Pease v. Cornish, 84. Peay v. Little Rock, 838. Peck V. Austin, 407. V. Bridgeport, 322. V. Rochester, 233. Peed V. McCrary, 63. Pegram v. Cleaveland Co., 39. Peik V. Railroad Co., 5, 528, 530, 534, 540, 562, 601, 621. Peiper v. Charleston, 309. Pell V. Newark, 137, 141. Pence v. Bryant, 336, 389. V. Frankfort, 155, 224. Pendleton Co. v. Amy, 73. Pennie v. Reis, 91. Fenuoyer v. Saginaw, 405. Pennsylvania Co. v. Chicago, 408. Pennsylvania, D. & M. Steam Nav. Co. V. Dandridge, 296. Pennsylvania R. Co. v. Lippin- cott, 216. t)76 CASES CITED. [The figures refer to pages.] Pennsylvania R. Co. v. Mayor, People 23tJ. V. V. Philadelphia, 448. r- V. Riblet, 531. V. Pensacola Telegraph Co. v. Tele- V. gi-aph Co., 57y, 580, 584, 613. V. People V. Ah Uug, 195. V. V. Albany, 412. V. V. Albany Corp., 518, 519. V. V. Albertson, 162, 199, 200, V. 257, 202. V. V. Altui-as Co., 36. V. V. Armstrong, 235. V. V. Assessors, 126, 475. V. V. Ass'n, 475. V. Austin, 464, 466. V. V. Ballhorn, 260. V. V. Barker, 474, 476, 479. V. V. Barnard, 600. V. V. Baruett Tp., 273. V. V. Bartlett, 271. V. V. Batchellor, 212, 464, 481, 502. V. Batchelor, 219, 222 V. Bay City, 351. V. V. Bender, 281, 285. V. V. Beufield, 495. y. Bennett, 51, 114, 115, 134, V. 154, 170, 195. V. , V. Blair, 222. V. T. Blocki, 387. V. V. Bloomington, 501. V. V. Board, 92, 211, 278, 324, V. 501, 503, 509. V. V. Bogart, 269. V. V. Bond, 210, 211, 313. V. V. Borda, 347. V. V. Bowen, 598. V. V. Brennan, 270, V. V. Bresler, 221. T. Brooklyn, 327, 335, 463, V. 470, 479, 504. V. V. Brown, 195. V. V. Brush, 222. V. V. Budd, 535. V. V. Burke, 325. V. V. Burr, 92, 184. 205, 212. V. V. Butte, 112, 129, 132, 138, V. 148, 182. V. V. Canaday, 179. Canal Co., 87, 89. Car Co., 30. Carpenter, 114, 115, 155. Carrique, 274. Cheritree, 509. Chicago, 199, 200, 397. City Council, 443. Clark, 490. Clunie, 161. CI lite, 178. Coler, 198, 307, 501. Com'rs, 277, 476, 478, 509. Common Council, 115, 308, 502. Cooper, 272, 285. Cornell, 230. County, 68. Cregier, 236, 369. De Grauw, 143. Detroit, 5, 111, 116, 162. 178, 195, 197, 199, 200. 212, 213, 259, 397, 480, 481. Diamond, 282. Draper, 130, 131, 135, 164, 199, 200, 205, 258. Farnham, 150, 171, 186. Feitner, 478. Ferris, 270, 271. Fields. 204, 377. Fire Dep't, 258. Flagg, 207, 211, 465, 471. Fleming, 127, 183. Foody, 282. Forest, 6. Freeman. 202. Fulton Co., 63. Gaslight Co., 599, 601, 607. Gilon, 509. Gleason, 307. Goldtree, 486. Gooseman, 195. Gordon, 247. Green, 274. Gregg. 258. Gunn, 183. Hagadorn, 90. CASES CITED. [The figures refer to pa People V. Hamilton, 261. People V. Hanifan, 273, 274. V. V. Hanrahan, 352. V. V. Harper, U4, 108, 212. V. V. Harris, 392, 400, 40L V. V. Hartwell, 506. V. V. Hecbt, 225, 266. V. Herring, 271. V. Hertle, 502. V. Hill, 149, 165. V. Hoffman, 279. V. V. Hulett, 195. V. V. Hull, 274. V. V. Hurlbut, 20, 35, 86, Ill, V. 114, 116, 162, 166, 178, Iv. 195, 197, 200, 201, 258, |v. 259, 403, 471. V. T. Ihnken, 228. V. V. Ingersoll, 37, 196, 215 V. V. Inspectors, 504. V. V. Johnson, 503. V. V. Jones, 382. V. V. Keechler, 105.' V. V. Kent, 307, 308. V. V. Kerr, 198, 199, 215, 217, V. 376, 552. V. V. Kilduflf, 272, 502. V. V. Kingman, 399. V. V. Knight, 477. V. V. Latham, 253. V. V. Lathrop, 21. V. V. Leavy, 221. V. V. Leonard, 262. V. V. Listman, .503. V. V. Loeffler, 279. V. V. Lowber, 513. V. Lynch. 258. V. McAllister, 221, 277. V. V. McClave, 286. V. V. McClintock, 347. V, V. McDonald, 178, 199. V. V. McFadden. 183. V. V. McFall. 105. V. V. McKinney, 178, 263, 264. V. V. Mahaney, 199, 200, 205. V. V. Marlett, 276. V. V. May. 59, 443, 444. V. ▼. Maynard, 135, 136, 149, V. 150. V. 677 iges.] V. Mayor, 49, 205, 383, 397. jNIeyer, 204. JMiller, 270, 365, 476. Mole, 501. Molloy, 501. Morris, 11, 90, 111, 112, 115, 116, 139, 148, 160, 161, 106, 172, 192-194, 197, 200, 206, 210, 480, 535. Morse, 92. Mulholland, 367. Murray, 232, 274. Nally, 35. Nearing, 388. Neilson, 257. New York, 277. Nichols, 86, 272. Nostrand, 267. Oakland, 148, 182. Ogdensburgh, 478. O'Keefe, 380. Olds, 504. Osborne, 131. Parker, 274. Pease, 506. Perry, 504. Pierce, 345. Pinckney, 258. Piatt, 260. Porter, 273. Power, 79, 202. 204. Pratt. 204. President, 113, 182. Railroad Co., 90, 205, 531, 534, 543, 546, 547, 550, 558, 5G9. 571, 572. Rector, 221. Refining Co.. 9. Reynolds. 140, 183. Riordan, 128. Riverside, 130. Road Co., 572. Rodgers, 271. Rontey, 368. Rucker, 131. St. Louis, 119. Piilomon. l.^.O. 182. San Luis Obispo, 434. 678 CASES CITED. [The figures refer to pages.] People V. Sawyer, 244. V. Scully, 504. V. Shaw, 509. V. Smith, 83, 323, 488. V. Squire, 581, 587, 589. V. Statou, 2G6. V. Stevens, 225. V. Stout, 112, 182. V. Stowell, 226. V. Stratton, 255, 279. ▼. Sturtevant, 275. V. Sup'rs, 47, 92, 205, 207, 212, 268. V. Swift, 330. V. Tazewell Co., 68. V. Telegraph Co., 577. V. Terry, 267. V. Town, 302. V. Treauor, 505. V. Trustees, 101. V. Tweed, 191. V. Van Cleave, 503. ▼. Vandecarr, 354. V. Wagner, 367. T. Walker, 229. V. Walsh, 205. V. Water Co., 143. V. Watertown, 3, 8. V. Weber, 326. V. Wells, 478. V. Wendell, 458. V. White, 144, 266. V. Whitlock, 277. V. Williams, 107. V. Wilson, 378, 501. V. Wong Wang, 195. V. Wood, 84, 258, 452. V. Wren, 8, 112. V, Wright, 131, 221. V. York, 505. People ex rel. v. Butte, 120. People of State of New York v. Squii'e, 205. People's Gaslight & Coke Co. v. Hale, 533, 534, 53G, 602. People's Pass. R. Co. v. Railroad Co., 567. Pepper v. Telegraph Co., 576. Perdue v. Ellis, 180, 231. Pereles v. Watertown, 203. Perin v. Carey, 163. Perine Contracting & Paving Co. v. Pasadena, 227. Perkins v. New Haven, 257, 407. V. Oxford, 430. V. Slack, 213, 397, 402, 480, 483. Perley v. Georgetown, 499. Perry v. Railroad Co., 392, 400. V. Rockdale, 86. V. Torrence, 477. V. Worcester, 394, 431. Peterborough v. Lancaster, 226. Peterson v. Mayor, 290, 299, 495. V. Santa Rosa, 434. Petit V. Rosseau, 84. Pettengill v. Yonkers, 435. Pettigrew v. Evansville, 434. Pettit V. Grand Junction, 392. V. Yewell, 261. Phelan v. Mayor, 330. Phelps V. Mayor, 227. Philadelphia v. Dibeler, 321. Philadelphia Ass'n for Relief of Disabled Firemen v. Wood, 467. Philadelphia, W. & B. R. Co. v. Railroad Co., 557. V. Tax Ct, 477. V. Williams, 546. Philips V. Wickham, 8. Phillips V. Cable Co., 556. V. Reed, 443, 451. Phillipsburg Electric Lighting, Heating & Power Co. v. Phil- lipsburg, 385. Phcenix Assur. Co. v. Fire Dept, 464, 467, 482. Phoenix Fire & Marine Ins. Co. V. Tennessee, 475. Phoenix Iron Co. v. Com., 503. Pickard v. Collins, 356. Pickles V. Ansonia, 332, 333. Pidgeon v. McCarthy, 117. Pierce v. Aurora, 242. V. Drew, 580. V. Kimball, 371. V. Roberts, 382. Pieroy v. Averill, 281, I CASES CITED. [The figures refer to pages. 1 679 Pierson v. People, 325, 329. Pike V. Megoun, 235. Pilie v. New Orleans, 81. Pinckney v. Telegraph Co., 523, 576, 578. V. Telephone Co., G17. Pinkerton v. Woodward, 614. Plnney v. Brown, 286. Pioneer Iron Co. v. Negaunee, 461. Piper V. Spokane, 420. Pipper V. Carpenter, 502, 507. Pittsburg, C. & St. L. R. Co. v. Brown, 559, 564. V. Hood, 531. Pittsburg, Ft. W. & C. R. Co. v. Chicago, 386. Pittsburg, W. & K. R. Co. v. Iron Works, 546, 615. Pittsburgh, C, C. & St. L. R. Co. V. Crown Point, 245. Pittsburgh & L. E. R. Co. v. Bruce, 547, 556. Pitzman v. Freeburg, 301, 448. Placke V. Railroad Co., 557. Planters' Bank Case, 6. ■Planters' Oil Mill v. Light Co., 410. Plessy V. Ferguson, 560. Plimpton V. Somerset, 212. Plymouth Com'rs v. Pettijohn, ISO. Plymouth R. Co. v. Colwell, 550. Police Jury v. Britton, 66, 68, 69. Police Jury of Ouachita v. Mon- roe, 108. Police Jury of Parish of Tensas v. Britton, 47. Polk V. McCartney, 324. V. Plummer, 14, 94, 108. Pollock's Adm'rs v. Louisville, 407. Poiiieioy V. Wells, 21. Pompton Tp. v. Cooper Union, 100. Pontiac v. Oxford, 228. Pool v. Simmons, .523, 616. T. Trexler, 387. Poole y. Jackson, 420. Poole V. Railroad Co., 557. i'ope V. Brandon, 10. I'oppleton V. Moores, 517. i^orter v. Thomson, 285. I'ort Jervis Water Works Co. v. Port Jervis, 290. Portland Lumbering & Mfg. Co. V. East Portland, 292, 312. Portland Sav. Bank v. Montesano, 502. Portland & R. R. Co. v. Deering, 615. Portland & W. V. R. Co. v. Port- land, 198, 199, 215, 217. Port of Mobile v. Watson, 168, 210, 453. Postal Tel. Cable Co. v. Eaton, 586. V. Norfolk, 478, 485. V. Railroad Co., 579, 585. V. Schaefer, 523. V. Steamship Co., 58.5. Postal Telegraph & Cable T. Charleston, 578. Potter V, Lainhart, 70. Potts V. Philadelphia, .505, 516. Potwin V. Johnson, 185. Powell V. Bowen, 427. V. Parkersburg, 161. V. Pennsylvania, 50, 354. Powers Appeal of, 473. V. Decatur, 493. V. Insurance Co., 423. V. Railroad Co., 548. Poyer v, Des Plaines, 35G. Prather v. Lexington, 255, 353, 400, 408. Pratt V. Litchfield, 50. 358. Prescott V. Lenox, 158. Prescott Irr. Co. v. Flathers, 619, President, etc., of City of Pater- son V, Society, 197. Presidio Co. v. Bank, 73. Pressman v. Dickson City, 431. Preston v. Bacon, 81, 209. V. U. S., 274. Prewitt V. Railroad Co., 566. Price V. Baker. 203. V. Irrigating Co., 524, 618. 680 CASES CITED. [The figures refer to pages-] Price V. Thompson, 398. Prickett v. Marceline, 443. Priet V. Reid, 459. V. Reis, 452. Primm v. Carondelet, 273. Primrose v. Telegraph Co., 570. Prince v. Crocker, 206, 277, 398, 469, 481. V. Skillin, 255. Pritchett v. People, 224. Privett V. Bickford, 261. Propagation of Gospel Soc. v. Pawlet, 145. Proprietors of Jeffries Neck Pas- ture V. Inhabitants of Ipswich, 196. Proprietors of Land of Southold V. Horton, 112. Proprietors of Locks & Canals on Merrimack River v. Railroad Co., 553, 554. Protzman v. Railroad Co., 378. Providence Bank v, Billings, 460, 463, 470, 475. Providence Gas Co. v. Thurber, 594. Provident Life & Trust Co. v. Mercer Co., 72. Provo City v. Shurtliff, 246, 369. Pruden v. Love, 281, 282. Ptacek V. People, 507. Pugh V. Little Rock, 58. Pulaski Co. v. Reeve, 20, 110. Pullman v. Mayor, 312, 320. V. New York, 289. Pumpelly v. Canal Co., 331. Pumphrey v. Baltimore, 207, 211, 216, 481. Pm'dy V. People, 141. Putnam v. Douglas Co., 333. Pye V. Peterson, 358, 372. Pyle V. Brenneman, 477. Q Quaker City Nat. Bank v. Nolan Co. 77. V. Tacoma, 451. Queens County Water Go. v. Mon- roe, 401. Quill V. Indianapolis, 443. Quinchard v. Trustees, 509. Quinton v. Bui'tou, 276. Radcliff's Ex'rs v. Brooklyn, 331. Rader v. Road District, 197. Rae V. Flint, 312. Ragan v. Aiken, 564. Raih'oad Commission Cases, 14, 530. Railroad Com'rs v. Railroad Co., 531. Rains v. Oshkosh, 150. Raleigh v. Peace, 338, 342. Raleigh & G. R. Co. v. Davis, 11, 49. Ralls County Court v. U. S., 203, 462. Randall v. Elwell, 477. Ransom v. Belvidere, 420, 429. Ranson v. Kitner, o72. Rapelye v. Van Siekler, 101. Rascher v. Railroad Co., 558. Rathbone v. Com'rs, 77. v. Hopper, 100. Rathbun v. Steamboat Co., 617. Raton Waterworks Co. v. Raton, 302, 311, 458. Ratterman v. Telegraph Co., 583. Rau V. Little Rock, 235. Raush V. Ward, 62. Ravenna v. Peuna. Co., 245 Rawson v. Spencer, 206. Ray V. Colby, 382. V. Wilson, 275, 458. Rayburn v. Davis, 56. Ray Co. v. Bentley, 111. V. Vansycle, 73. Raymond v. Fish, 51, 195 V. Keseberg, 383. V. Stearnes Co., 54. Raynolds v. Cleveland, 377, 378. R.'iynsford v. Phelps, 284. Reading v. Com., 199. CASES CITED. IThe figures refer to pages.] 6S1 Reagan v. Trust Co., 530, 534. Reat V. People, 478. Reclamation Dist. v. Goldman, 334. V. Turner, G19. Rector v. State, 195. Reddall v. Bryan, 49, 464. Redell V. Moores, 127, 130. Redlands, L. & C. Domestic Wa- ter Co. V. Redlands, 602. Red Star Line S. S. Co. v. Jersey City, 239, 606, 607. Reed v. Anoka, 301. V. Louisville, 233. V. Madison, 422. V. Orleans, 290, 305. V. Steamboat Co., 543. V. Telegraph Co., 523. V. Toledo, 473. Rees V. Watertown, 166, 491, Reeves v. Wood County, 49. Regenstein v. Atlanta, 471. Regents of University v. McCon- nell, 11. V. Williams, 11, 164. Regina v. Bewdley, 164. Reichard v. Flinn, 398. Reicbard v. Warren Co., 59. Reid V. Clay, 306. V. Railroad Co., 557. Reif V. Paige, 269. Reiff V. Conner, 223. Reilly V. Albany, 328. V. Racine, 232, 382, 388. Reiter v. State, 273. Rensselaer County Sup'rs v. Bates, .302. Rensselaer «& S. R. Co. v. Davis, 549, 550. 553. Requa v. Rochester, 381. Renting v. Titusville, 286, 308. Rex V. Amory, 164. V. Grosvenor, 164. V. Kent, 164. V. London, 123. V. Mayor, etc., of Stratford on the Avon, 117. V. Miller, 164. ^. Morris, 164. Rex V. Osbourne, 164 , V. Oxfordshire, 405. V. Pasmore, 164. V. Saunders, 164. V. Stepney, 500. V. Stewart, 104. V. Tregony, 164. Reynolds v. Albany, 400, 401. V. Naudain, 570. V. U. S., 121, 129, 13L V. Waterville, 443. Rhode Island Suburban R. Co., In re, 546. Rice V. Milwaukee, 443. V. Plymouth Co., 61, 64. Rich V. Mentz, 63. Richards v. Clarksburg, 259. V. Railroad Co., 568. Richardson v. Grant Co., 55, 56, 62, 67. V. Morgan, 335. Richland Co. v. Lawrence Co., 91, 157, 202, 204, 206. Richmond, F. & P. R. Co. v. Richmond, 361. Richmond Mayoralty, In re, 178. Richmond P. & C. R. Co. v. Cham- blin, 554. Richmond Safety Gate Co. v. Ashbridge, 362. Richmond & D. R. Co. v. Brog- den, 89. Richmond & M. P. Land, Naviga- tion & Improvement Co. y. West Point, 196. Richter v. New York, 337. Riddick v. Amelin, 120, 121. 132. Riddle v. Proprietors. 14, 26. Rieker v. Lancaster. 606. Hishter v. Newark. 334. Riley v. Inhabitants, 253. Ring V. Cohoes, 423. V. Johnson Co., 40, 64. Rio Grande Co. v. Jerome, 69. Rippe V. Becker, 195. Rische v. Transportation Co., 556, 557. Rissing v. Ft. Wayne, 2.i7. Ritchie v. Franklin Co.. 73. 682 CASES CITED. [The figures refer to pages.l Rittenhouse v. Mayor, 453. River Rendering Co. v. Behr, 237. Rivers v. Augusta, 430. Riverside & A. R. Co. v. River- side, 318. Rives v. Columbia, 283, Roane Co. v. Anderson Co., 36. Roanoke Gas Co. v. Roanoke, 329. Robbins v. County Court, 68. V. Taxing Dist, 482. Robert V. Sadler, 390, 391. i Roberts v. Bank, 310. V. Ogle, 241, 363, 364. Robertson v. Bayonne, 507. V. Breedlove, 66, 294, 315, 447. V. Omaha, 328. Robey v. Com'rs, 501. Robie V. Sedgwick, 101, 117. Robinson, In re, 261. V. Baltimore, 253. V. Evansville, 409. V. Fovi^ler, 100. V. Franklin, 232. V. Greenville, 411. V. Mayor, 51, 3G8. Robinson v. Rohr, 282, 283. Roche V. Jones, 224, 225, 266, 267. Rocheblave Market Co. y. New Orleans, 478. Rochester White Lead Co. v. Rochester, 432. Rochester & L. O. Water Co. v. Rochester, 385, Rock Island Co. v. Steele, 30. Rockland Water Co. v. Adams, 607. Rodemacher v. Railroad Co., 531, Roe V, Kansas City, 426, 428. V. St. John, 90. Roflf V. Calhoun, 443. Rogers v. Burlington, 120, 303, 461. V. Common Council, 279. V. Jones, 241, 35L T. Lee Co., 68, V. People, 13. 21, 102, 110. V, St. Paul. 327. V. Society, 10. Rogers v. Supervisors, 87. Rogers Park Water Co. v. Fer- gus, 522. Rollins V. Board, 285. Roman Catholic Archbishop v. Shipman, 3. Romero v. United States, 82. Rommeney v. Nevp York, 424, Rondot V. Rogers Tp., 449. Roosevelt v. Draper, 514. Root's Case, In re, 333. Roper V. McWhorter, 282, 511. Rose V. Hardie, 161, 196, 249. V. Low, 306. V. Toledo, 406, 409. Roseboom v. School Tp., 103. Rosell V, Board, 204, Rosenheim, Ex parte, 249. Rosetta Gravel Paving & Im- provement Co, V. Jollisaint, 340. Rosevere v. Osceola Mills, 420. Ross V. Anderson Co., 45. V. Butler, 517. V. Madison, 61, 229, 290, 805. V. Stackhouse, 330. Rothrock v. Carr, 43. Rounds V, Munford, 281, 283. Roundtree v, Galveston, 335, Rounsaville v. Kohlheim, 517. Rouse V. Moore, 107. Rowe V, Portsmouth, 416, Rowell V. School Dist,, 104, Rowland v, Kalamazoo, 405. Royce v. Salt Lake City, 408. Rudisill V. State, 502, Ruggles V, Inhabitants of Nan- tucket, 113, Rumsey v. People, 135, 149. V, Railroad Co,, 556. Rumsey Mfg. Co, v. Schell City, 232, 233, Rundell v, Lakey, 488. Rusher v, Dallas, 257. Rushville Gas Co. v. Rushville. 223, 368, 529, Russell V. Cage, 44, V. Men of Devon, 25, 30, 421, 519. V. Place, 72 CASES CITED. [The figures reler to pages.] 683 Russell V. Railroad Co., 555. V. Tacoma, 499. V. Tate, 293, 511. V. Toledo, 429. Rutgers College Athletic Ass'n v. New Brunswick, 2.33. Rutland v. West Rutland, 97. Rutland Canadian R. Go. v. Rail- road Co., 551. Rutland Electric Light Go. v. Light Co., 385. Rutledge v. Fogg, 90. Ruttle V, Covington, 385, 887, 392. Ryan v. Central City, 476. V. Dakota Co.. SO. V, Paterson, 289. Ryder's Estate v. Alton, 228. Ryerson v. Utley, 466. Sackett v. New Albany, 445. Sadler, In re, 152. Safety Insulated Wire & Cable Co. V. Baltimore, 197. Sage V. Brooklyn, 334. V. Fargo Tp., 75. V. Laurain, 282, 284. Saginaw Gaslight Co. v, Saginaw, 598. St. Joseph County Sup'rs v. Cof- fenbxiry, 494. St. Joseph Fire & Marine Ins. Co. V. Leland, 284. St. Louis V. Ferry Co., 476, 477. V. Fitz, 3G6. V. Railroad Co., 245, 252. V. Russell, 226. St. Louis County Court v. Gris- wold. 200. V. Sparks. 272. St. Louis, I. M. & S. R. Co. v. Paul, 560. V. Wilson, 570. St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co., 555. St. Louis Quarry & Construction Co. V. Frost, 308. St. Louis & C. R. Co. V. Tele- graph Co., 581. St. Louis & M. R. R. Co. v. Kirk- wood, 570. St. Louis Sc S. F. R. Co. v. Gill, 530. V. Telegraph Co., 585, 586, 588. St. Peter v. Denison, 547. St. Vincent Female Orphan Asy- lum V. Troy, 383. Salamanca Tp. v. Bank, 457. Saleno v. Neosho, 222, 233. Saline Co. v. Wilson, 54. Saline County Com'rs v. Ander- son, 83, 270. Salisbury v. Andrews, 383, 393. Salmon v. Haynes, 223. Salt Co. V. Brown, 524. Salt Lake City v. Hollister, 438. Salt Lake Co. v. Golding, 57. Sammons v. Gloversville, 518. Samms v. Stewart, 543. Sampson v. People, 57. Sanborn v. Com'rs, 212. V. Neal, 280. V. Rice Co.. 90, 92. V. School Dist., 102, 388. Sand Creek Lateral Irr. Co. v. Davis, 618, 619. Sandford v. Common Pleas, 184. San Diego Land & Town Co. v. Jasper, 601, 603, 618. V. National City, 529, 532, 537, 600-602. San Diego Water Co. v. San Di- ego, 524, 528, 534, 595, 604, 612. Sandusky City Bank v. Wilbor. 454. Sanford v. Boyd, 256. San Francisco Gas Co. v. San Francisco, 196, 232. Sangamon Co. v. Springfield, 202, 204, 459. Sangamon & M. R. Co. v. Morgan Co., 85. Sanitary Reduction Works v. Re- duction Co., 355. 684 CASES CITED. [The figures refer to pages.] Sank V. Philadelphia, 223. 233. ] Santa Ana Watei- Co. v. Sau Bu- enaventura, 2(j5, 309. Saulsbury v. Ithaca, 426. Saunders v. Fitzgerald, 457. V. Ft. Madison, 4U9. Savage v. Bangor, 55. V. Pickard, 83. Savannah & T. R. Co. v. Savan- nah, 217, 392, 529, 552. Sawyer, In re, 225, 510. V. Corse, 284. Scales V. Chattahoochee Co., 13 21, 28, 102. Scalf V. Collins Co., 43. Schaaf v. Railroad Co., 556. Schenley v. Com., 380, 473, 486. Schipper v. Aurora, 298, 299. Schmalzried v. White, 359. Schmidt v. Lewis, 253. V. Stearns, 65. Schmitz V. Germantown, 400. Schneider v. Menasha, 293. Schoen v. Atlanta, 355. Schofield V. Tampico, 219. School Com'rs v. Dean, 146, 190. School Com'rs of Washington Co. V. Wagaman, 103. Schoolcraft's Adm'r v. Railroad Co., 279. School Dist. V. Bennett, 102, 103. V. Smith, 507. .School Dist. No. 1 v. Weber, 207, 211. School Dist. No. 2 v. Clark, 229. School Dist. No. 3 v. Bodenhamer, 100. V. Mocloon, 101. V. School Dist., 100. School Dist. No. 4 v. Smith, 102. School Dist. No. 5 v. Lord, 498. School Dist. No. 7 v. Thompson, 101. School Dist. No. 11 v. Williams, 13, 21. School Dist. No. 18 v. Brown, 103. School Dist. No. 56 v. insurance Co., 140, 141. School Dist. No. 80 v. Brown, 105. School Dist. Tp. v. Lombard, 450. School Town of Miltord v. Pow- ner, 103, 104. V. Zeigler, 103. School Town of Princeton v. Gebhart, 94. School Town of Winamac v. Hess, 443. Schultes V. Bberly, 110. Schultze V. Manchester, 444, 452. Schuyler Co. v. Mercer Co., 53. Schuylkill County Com'rs v. Sny- der, 64. Schwartz v. Flatboats, 485. V. Oshkosh, 233, 234. Schwede v. Brewing Co., 381, 387. Schweitzer v. Liberty, 369. Scioto Com'rs v. Gherky, 21. v. Gherky Wright, 94. Scotland Co. v. Hill, 70, 75. Scott V. Crump, 270. V. Davenport, 206, 320. V. Fishblate, 282. V. La Porte, 318. V. Watkins, 90. Scott's Ex'rs V. Shreveport, 65. Scovil v. Geddings, 282. Scoville V. Cleveland, 90. 191. 224, 207, 473. Scripture v. Burns, 504. Scudder v. Falls Co., 546. V. Trenton, 615. Seaman v. New York, 414. Searing v. Clark, 272. Sears v. Cottrell, 131. Seattle v. Barto, 2,53. V. Tyler, 121. Seattle & M. R. Co. v. Railroad Co., 552. Seeombe v. Railroad Co., 546. Second Ave. M. E. Church, In re, 4(!2. Second Municipality of New Or- leans v. Morgan, 236. Second Ward Sav. Bank v. Hu- ron, 76. Sedgwick County Com'rs v. Bai- ley, 149. V. Bunker, 157. CASES CITED. [The figures refer to pages.] 685 Seely v. Pittsburgh, 338. Segars v. Parrott, 3G. Seibert v. Lewis, 168, 210, 313. SeibrecM v. New Orleans, 292, 600. Seifert v. Brooklyn, 416. Sells V. Railroad Co., 557. Seiuple V. Vicksburg, 395, 432, 433. Seton V. Hoyt, 56. Seward v. Orange, 399. Sexton V. Transit Co., 525. Shakespear v. Smith, 105. Shanfelter v. Mayor, 251. Shankland v. Phillips, 105. Sbaaklin v. Madison Co., 37, 38, 39. Sbanley v. Brooklyn, 256, 257. Shannon v. Huron, 45L V. O'Boyle, 43. V. Portsmouth, 278. Shapleigh v. San Angelo, 150, 313, 453. Sharp V. Contra Costa Co., 30. V. New York, 496. V. Speir, 473. V. Teese, 296. Sharpless v. Philadelphia, 72, 463- 466, 468. Sharp's Ex'r v. Dunavan, 476. Shartle v. Minneapolis, 381. Shattuck V. Woods, 81. Shaw V. Dennis, 471. V. Jones, 219, 255. V. Peckett, 489. V. Pima Co., 82. V. School Dist., 76, 78. Shea V. Ottumwa, 380. Shearer v. Buckley, 417. Sheboygan Co. v. Parker, 39, 255. Sheehan v. Hospital, 339. Sheffield School Tp. v. Andress, 305. Sheidley v. Lynch, 42. Shelby v. Alcorn, 250. Shelby County v. Exposition Co., 46. Sheldon v. Railroad Co., 555. Sheley v. Detroit, 473. Shelton v. Mobile, 378. Shepard v. Easterling, 80. V. Gaslight Co., 599, 606, 607. V. Murray Co., 43. Sherbourne v. Yuba Co., 25. Sheridan v. Colvin, 262. Sherry v. Gilmore, 117, 171. Sherwin v. Bugbee, 101. Sheward v. Water Co., 607. Shields v. Durham, 408. Shipley v. Bolivar, 420. Shippy V. Au Sable, 426. Shiras v, Ewing, 606, 607. V. dinger, 356. Shirk V. Chicago, 377. V. Pulaski Co., 66, 68, 69. Shoe V. Nether Providence Tp., 99. Short V. Symmes, 265. Sboup V. Shoup, 509. Shroder v. Lancaster, 253. Shuck V. State, 261. Shue V. Commissioner, 549. Shuman v. Ft. Wayne, 367. Sibley v. Mobile, 483. Sidway v. Com'rs, 2G8. Sievers v. San Francisco, 434, 436. Simmerman v. Wildwood, 224. Simmes v. Chicot Co., 60, 61. Simmonds v. Holmes, 372. Simmons v. State, 366. v. Toledo, 517. V. Wilson, 87. Simon v. Hoboken, 272. 507. V. Northup, 205. 207, 375. Sims V. Chattanooga, 384. Singleton v. Austin, 102. Sinton v. Ashbury, 217, 377, 582. Sipler V. Clarion Co., 81. Sixth Ave. R. Co. v. Kerr, 552. Skaneo teles Water Works Co. v. Skaneateles, 599. Skinner v. Christie, 488. Slattery, Ex parte, 195. Slaughter v. People. 252. Slaufjjhter House Cases, 52. 344. Sloan V. State, 100, 190, 192. 193. Slooomb V. Fayettevillo, 4G2. Slocum V. Ocean Grove, 249. Slosser v. Canal Co., 524, 619. <>86 CASES CITED. [The figures refer to pages.] Small V. Dauville, 196, 214. Smathers v. Com'rs, 88. Smiley v. MacDonald, 355. Smith, Ex parte, 244, 249. V. Aberdeen Corp., 86. V. Adrian, 191. V. Albany, 310. V. Appleton, 210, 313. V. Barrow Co., 56. V. Clark Co., 76. V. Collier, 355. V. Com'rs, 45. V. Crutcher, 148, 150. V. Dedham, 445. V. Exchange, 383. V. Farrelly, 495. V. Gould, 430. V. Havemeyer, 414. V. Howell, 461. V. Hind, 9. T. Improvement Co., 306. V. Inge, 208, 380. V. Kernochen, 161. V. Knoxville, 246, 366. V. Leavenworth, 37. V. McCarthy, 112, 156, 183. V. Mason, 85. V. Mayor, 82. V. Mining Co., 8. V. Moore, 263. V. Morse, 205. V. Myers, 111. y. Nashville, 52, 354, 595. V. Navasota, 379. V. Newbern, 448. V. New York, 434. V. People, 112, 159, 160. V. Proctor, 104. T. Railroad Co., 559. V. Riding, 88. V. Rochester, 360. V. Saginaw, 159. V. Selinsgrove, 411. V. Sherry, 152. V. Sioux City, 420. V. Smith, 8, 81. v. State, oGO. V. Stephan, 300. 312, 319. v. Sup'rs, 86. Smith V. Syracuse, 306. v. Telegraph Co., 605. V Washington, 330. V. Westcott, 148, 163. V. Westerly, 98. Smithko v. Ktiilroad Co.. 550. Smith's Case, ltJ4. Smyrk v. Sharp, 253. Smyth V. Ames, 528, 530, 534, 537, 571, 601, 602, 604. Smythe v. Chicago, 325. Snell, In re, 238, 368. Snider v. St. Paul, 409, 499. Snipes v. Winston, 309. Snyder v. Albion, 419. v. Railroad Co., 557. Society for Propagation of Gospel V. Pawlet, 147, 149, 186. Society Perun v. Cleveland, 143. Somers v. Wescoat, 508. Soon Hing v. Crowley, 369. Soper V. Henry Co., 11, 13, 25, 54, 110. South V. Maryland, 38. South Buffalo R. Co. v. Kirkover, 554. South Carolina R. Co. v. Blake, 553. South Carolina & G. R. Co. v. Tel- egi-aph Co., 585. South Covington & C. St. R. Co. V. Berry, 246, 361, 533. Southern Bell Telephone & Tele- graph Co. V. Constantine. 590. V. D'Alemberte, 580. Southern Exp. Co. v. Craft, 617. V. Railroad Co., 617. Southern Illinois & M. Bridge Co. V. Stone, 616. Southern Kansas R. Co. v. Okla- homa City, 554. Southern Pac. R. Co. v. Orton, 10. V. Reed, 392. V. Wilson, .546. Southern R. Co. v. Power Co., 557. South Highland Land & Improve- ment Co. V. Kansas City, 399. I CASES CITED. [The figures refer to pages.] 68Y South Nashville St. R. Co. v. Mor- row, 478. South Omaha v. Cunningham, 423. South Park Com'rs v. Dunlevy, 68, 450. South Platte Land Co. r. Buffalo Co., 152. Southport V. Ogden, 253. Southwest Missouri Light Co. v. Scheurich, 524, 618. Southwestern Telegraph Co. v. Railroad Co., 585. Southwestern Telegraph & Tele- phone Co. V. Branham, 590. V. Railroad Co., 575, 585. V. San Antonio, 474. Southworth v. Flanders, 281. South & N. A. R. Co. V. Railroad Co., 566, 570. V. Williams, 559. Sower V. Philadelphia, 230, 232, 498. Sowles V. Bailey, 508. Spangler v. San Francisco, 433. Sparhawk v. Railroad Co., 571. Sparks Mfg. Co. v. Newton, 347. Spauldiug V. Arnold, 456. V. Aes'n, 324. V. Lowell, 97, 173, 402, 463. Speed V. Crawford, 257, 258. V. Detroit, 262, 277. Speer v, Athens, 327, 471. V. Board, 143, 450. Speir V. Brooklyn, 411. Spencer v. Merchant, 334, 337, 479. Spiech V. Tiemey, 488. Spilman v. Parkersburg, 443. Spitler V. Young, 249. Split Rock-Cable Road Co., In re. 613. Spokane Falls v. Browne. 32G. Spokane St. R. Co. v. Spokane, 378. Sfiringfield v. Sponce, .394. Springfield Fire & Marine Ins. Co. V. Keeseville, 197, 409, 410. Spring Val. Coal Co. v. Spring Valley, 408. Spring Valley Water Works v. Drinkhouse, 596. V. San Francisco, 112, 275, 530, 532, 604. V. Schottler, 5, 522, 524, 534, 605, 612, 615. V. Water Works, 594. Squiers v. Neenah, 282. Staates v. Washington, 246, 494. Stadtler v. School Dist, 105. Stamp V. Cass Co., 56, 67. Stanchfield v. Newton, 434. Stamfield v. State, 178. Stanislaus County v. San Joa- quin & King's River Canal & Irrigation Co., 604. Stanley v. Davenport, 362, 387, 423, 523, 567. Staples v. Bridgeport, 253. Starin v. Genoa, 301. Starkey v. Minneapolis, 61, 64, 302. Starr v. Burlington, 111, 116. State V. Ackerman, 143. V. Addington, 530. V. Agee, 507. V. Anderson, 231. V. Anderson Co., 490. V. Armstrong, 113, 127, 128, 134, 475. V. Ashland, 87. V. Atkinson, 398. T. Babcock, 112, 148, 159, 182, 315, 447. V. Bank, 481. V. Barbour, 223. V. Barksdale, 518. V. Berdetta, 375. V. Blue, 207, 211. V. Board, 43, 105, 108. V. Bogard, 178. V. Brandt, 257. V. Bridge Co., 234. T. Briukerhoff, 273, 274. T. Bristol, 400. 462, 463. V. Broatch, 262, 272, 507. GS8 CASES CITED. [The figures refer to pages.] State V. Brown, 47G. V. Bruckbuu.ser, 363. V. Bulkeley, 270. V. Bunkers, 118. V. Burlington, 405. V. Cainan, 249, 363. V. Canterbury, 182. V. Cantieny, 235, 248, 249. V. Carpenter, 249. V. Carr, 149, 270. V. Carroll, 143, 267, 269. V. Cassidy, 366, 367. V. Charleston, 485. V. Clark, 246, 369. V. Clarke, 172, 192, 235, 238, 365. V. Clayton, 263, 273. V. Clinton Co., 73. V. Coit, 38. V. Coke Co., 236, 385, 598, 600, 601. V. Com'rs, 34, 55, 75. V. Common Council, 276, 444. V. Conser, 507. V. Cook, 452, 459. V. Cornell, 469. V. Corning, 459. V. Council, 128. V. Covington, 199. V. Cowan, 252. V. Cram, 195. V. Culver, 388. V. Curran, 112, 139, 148, 182. T. Curry, 262. V. Curtis, 506. V. Cuyahoga Co., 43. V. Daniel, 475. V. Dawson, 7. V. Dean, 385. V. De Gress, 274. V. Deliesseline. 220. V. Demann, 157. V. Denny, 86, 111, 116, 162, 178. 197, 200, 258, 259, 403. T. Dering, 238. V. Des Moines, 461, 485. V. District Court, 324, 508, 509. State V. Doherty, 263. V. Dorsey Co., 34, 37. V. Douglas, 255. ▼. Dover, 518. V. Duerr, 102. V. Dunn, 272. V. Duuson, 164. V. Dupaquier, 354. V. Eidson, 155. V. Ernhardt, 363. V. Eshelby, 203, 269, 270. V. Evans, 506. V. Ferguson, 174. V. Fernandez, 368. V. Ferris, 179. V. Flanders, 149. V. Flint, 351. V. Forest County, 127. V. Foster, 223. V. Fourcade, 241. V. Freed, 103, 105. V. Freeman, 174, 247. V. Fridley Park Village, 114. V. Froehlich, 467. V. Frost, 134. V. Fuller, 135, 149. V. Funk, 310. V. Gandy, 458. V. Gas Co., 5, 14, 112, 522, 600. V. Gaslight Co., 524, 600, V. Gates, 276. V. George, 178, 260, 261. V. Gill, 509. V. Godfrey, 487. V. Goowin, 183, 224, 225. V. Gorham, 519, 571, 572. V. Graves, 346. V. Gray, 224, 225, 267. V. Griggsy, 80. V. Grimes, 365. v. Haines, 135, 138, 182. V. Hamilton, 165, 593. v. Hampton, 92, 205, 212. V. Hardy, 236. V. Harris, 500. V. liarrison, 271, 509. V. Hauser. 227. V. Haworth. 211. V. Hayes, 231. I CASES CITED. [The figures refer to pages.] 689 State V. Headlee, 80, 86. State V. Hellman, 246, 370. V. V. Henderson, 233. V. V. Hibbard, 366. V. V. Hine, 178. V. V. Hoff, 98. V. V. Holden, 136. V. V. Hoyt, 223. V. Hudson Co., 25, 519. V. V. Humphreys, 278. V. V. Hunter, 178, 200, 257. V. V. Insurance Co., 478. V. V. Itzeovitch, 367. V. V. Jacobs, 90, 225. V. V. Jelks, 503. V. V. Jennings, 114, 127. V. V. Jersey City, 22G, 272, 510. V. V. Jolinson, 278, 357, 532. V. V. Jones, 379. V. V. Kantler, 235. V. V. Kearns, 271. V. V. Keith, 252, 352. V. V. Kennedy, 228. V. V. Kennelly, 277, 278. V. V. Kersten, 272. V. V. Kiichli, 220, 255, 277. V. V. Kirlf, 219, 255, 259. V. V. Knoxville, 372. V. V. Kolsem, 148, 159, 200, 463. V. V. Kraft, 264. V, V. Lane, 267, 272. V. Y. Langston, 351. V. T. Leatherman, 113, 118, 127, V. 136, 149, 150, 183. V. V. Lee, 250. V. T. Leffingwell, 110. V. V. Leischer, 507. V, V. Light Co., 531, 534. V. T. Lincoln, 273, 275. V. V. Lockwood, 372. V. V. Luce, 216. V. T. Ludwig. 350. V. V. McAllister, 260. V. V. McCabe, 503. V. V. McFadden, 34, 37. V. V. McGrath, 308. T. V. McLean Co., 507. V. V. McMahon, 357, 366. V. iNG.Cour. — 44 V. Madison, 491, 519. Mahuer, 239. Maine, 50, 616. Mansfield, 507. Marion Co., 60, 304. Martin, 456. Mayor, 172, 185, 192, 472, 474, 518, 519. Maysville, 461. Meadows, 165. Medbery, 445. Merrill, 174, 180, 363. Miller, 279, 508. Milne, 270, Milwaukee, 111, 491. Mitchell, 141. Moehlenkamp, 508. Moores, 262. Morse, 549. Mote, 114. Mott, 221, 356, 507. Muir, 351. Mulvihill, 258. Murfreesboro, 405, 412, Murray, 201. Narragansett, 141. Nashville, 235, 269. Nelson, 495. New Brunswick, 616^ New Orleans, 210. Nine Justices, 178. North, 482. Noyes, 139, 182, 530. Gates, 272, O'Connor, 178. Oil Co., 9. Oleson, 253. O'Neil, 357. Ormsby Co., 39, Orr, 195, 311, Osawkee Tp., 465. Osborn, 165. Owen. 365. Palmer, 160, 161, Parker. 475, Parrott, 216. Pnyssan, 307. Pender, 195. 690 State V V. V. V. V. V. V. V. V. V. Y. CASES CITED. [The figures refer to pages.] Peterson, 278. Pinkerman, 267. Portland, 405, 519. Pratt, 383. Priester, 223. Proudfit, 368. Puckett, 47. Pugh, 141. Quayle, 443. Qnong, 351, Railroad Co., 197, 203, 204, 217, 243, 286, 302, 310, 386, 508, 528, 543, 547, 557, 561, 570-572, 612, 614. T. Reis, 338, 472. V. Robinson, 240. V. Ruff, 264. V. Ruhe, 260. V. St. Bernard, 308. V. Savage, 475, 479, 481. V. School Dist., 105. V. Scougal, 620. V. Seavey, 257, 403. V. Shaw, 85. V. Shea, 269. T. Shearman, 277. V. Sheboygan, 385. V. Shelbyville, 405. V. Shelbyville Corp., 519. V. Sheppard, 361. V. Sherwood, 501. V. Simons, 113, 127, 134, 183. V. Simonton, 620. T. Sloan, 386. V. Smith, 200, 219. 222, 226, 368, 370, 371, 501. V. Society, 518. V. Spaude, 161. V. Stearns, 250. V. Steunenberg, 112, 113. V. Stevens, 260, 261. V. Stormont, 3. V. Strauss, 239. V. Streulvens, 261. V. Stiill, 503. V. Superior Court, 508. ▼. Swearingen, 261. State V. Taft, 356, 369. V. Tappan, 92. V. Telegraph Co., 524, 581. V. Telephone Co., 577, 588, 614, 615. V. Thorne, 461. V. Tiedemann, 102. V. Tipton, 136, 187. V. Toledo, 161. V. Tomkies, 508. V. Topeka, 365, 373. V. Tosney, 185. V. Traction Co., 570. V. Trenton, 241, 245, 533. V. Trunipf, 261. V. Trust Co., 605. V. Tryon, 111, 116, 231. V. Tuppan, 212. V. Tweedy, 98. V. Tyrrell, 367. V. Van Auken. 269. V. Van Beck, 261. V. Van Home, 303. V. Vanosdal, 223. V. Wadhams, 263. V. Waggoner, 164, 165. V. Walton, 257. V. Water Co., 506, 536, 60u, 607, 612. V. Waxahachie, 151, 152, 183. V. Webb, 143. 150. V. Webber, 237, 365. V. Weir, 127. V. Welch, 174, 246, 252, 363, 369. V. West Hoboken, 324. V. Wheatley, 507. V. White, 502. V. Whittingham, 519. V. Wilcox, 184. V. Wilkinson, 374, 375. V. Williams, 174, 262, 277. 365. V. Wilmington, 263. V. Wilson, 137, 164, 165, 192, 271. V. Woodward, 379. T. Wordin, 52. CASES CITED. [The figures refer to pages.] 691 State V. Worth, 249. V. Yates, 221. V. Yopp, 377. V. Young, 132, 150. State Bank v. Clark, 5, 620. State Board of Education v. Aber- deen, 64, 207, 211, 301. State ex rel. Attorney General v. Doherty, 277. V. Page, 262. V. Schweickardt, 194, 199. State ex rel. Aull v. Shortridge, 461. State ex rel. Barber Asphalt Pav. Co. V. New Orleans, 456. State ex rel. Bauman v. Judge, 276. State ex rel. Bromade v. St. Paul, 508. State ex rel. Cameron v. Shannon, 258. State ex rel. Campbell v. Com'rs, 278. State ex rel. Cape Girardeau v. Engelmann, 545. State ex rel. City of Carthage v. Milling Co., 220. State ex rel. Clement v. Stokes, 276. State ex rel. Crow v. Fleming, 507. State ex rel. Crowe t. St. Louis, 455. State ex rel. Cullen v. Carr, 270. State ex rel. Deering v. Berkeley, 262. State ex rel. Dome v. Wilcox, 112, 183. State ex rel. Douglass v. Scott, 183. State ex rel. Foy v. New Orleans, 502. State ex rel. Garth v. Rassieur, 470. V. Switzler, 470. State ex rel. Hopper v. Cottengin, 490. State ex rel. Hull v. Gray, 264. State ex rel. Johnston v. Badger. 272. State ex rel. Kane v. Johnson. 262. State ex rel. Kansas City, St. J. & C. B. R. Co. V. Severance, 192, 193, 488. State ex rel. Kuhlman v. Rost, 264. State ex rel. Laclede Gaslight Co. V. Murphy, 216. State ex rel. Livesay v. Harristm, 69. State ex rel. McMahon v. New Orleans, 277. State ex rel. Marchand v. New Orleans, 203. State ex rel. Monlln v. New Or- leans, 504. State ex rel. Nail v. Clarke, 82. State ex rel. National Subway Co. v. St. Louis, 386, 587. State ex rel. New Orleans & C. R. Light & Power Co. v. St. Paul. 503. State ex rel. North Missouri C. R. Co. V. County Court, 89. State ex rel. Payne v. Telephone Co., 577. State ex rel. St. Louis Under- ground Service Co. v. Murphy, 524, 591. State ex rel. Stewart v. Police Jury, 483. State ex rel. Thomas v. Williams. 260. State ex rel. Turner v. Fitzgerald. 276. State ex rel. Vail v. Clark, 270. State ex rel. Van Buskirk v. Boecker, 263. State ex rel. Warmoth v. Gra- ham, 274. State ex rel. White v. Clay, 490. State ex rel. Wingate v. Valle 201. State of California v. Railroad Co., 542, 564. 692 CASES CITED. [The figures refer to pages.] State of Delaware v. Telephone Co., 577. State of Indiana v. Woram, 119. State of Missouri v. Telephone Co., 577. State, on Petition of Taylor, v. County Court, 478. State, to Use of Iseal, v. Saline Co., 59, 67. Stebbins v. Jennings, 145, 147, 190. V. Keene Tp., 427. V. Perry Co., 75, 76. Stedman v. Berlin, 445. V. San Francisco, 177. Steel V. Borough of Huntington, 381. Steele v. Dunham, 282. V. Signal Co., 514. V. Willis, 505. Steele Co. v, Ersldne, 73. Steenerson v. Railroad Co., 532. Stein V. Supply Co., 529. V. Water Supply Co., 598. Steiner v. Polk Co., 64. Steines v. Franklin Co., 55, 72, 73, 74. Stephan v. Daniels, 495. Stephani v. Manitowoc, 287. Sterling v. Parish of West Feli- ciana, 39. Sterling Gas Co. v. Higby, 41, 42. Stetson V. Kempton, 21, 89, 95, 96, 292, 348, 461. Steubenville v. Gulp, 82, 83, 270. Stevens v. Campbell, 103. V. Carter, 502. V. Dudley, 284. V. Miller, 501. V. Muskegon, 412, 432. Stevenson v. Bay City, 257. V. Chattanooga, 380. Stewart, Appeal of, 572. V. Maple, 86. V. New Orleans, 349, 373, 406. V. Otoe Co., 42. V. Railroad Co., 392. V. Roberts, 39. V. Southard, 282. Stierle v. Railroad Co., 544. Stiffler V. Delaware, 268. Stilz V. Indianapolis, 154, 155. Stinson v. Smith, 472. Stock V. Boston, 414, 432. Stockwell V. Genesee County, 268. Stoddard v. Railroad Co., 544. V. Saratoga Springs, 433, 434. 437. Stokes V. State, 89. Stone V. Charlestown, 37, 159. V. Chicago, 445. V. Elliott, 75. V. Langworthy, 381. V. Mississippi, 529, 530, 568. 588. V. Trust Co., 601. Storer Post, No. 1, G. A. R. v. Page, 505. Storey v. Murphy, 40, 62. Stormfeltz v. Turnpike Co., 216. 376. Storrs V. Utica, 423. Story V. Railroad Co., 390, 55(1 . 570. Story's Case, 389. Stout V. Glen Ridge, 21. V. McAdams, 618. V. Zulick, 143. Stoutenburgh v. Hennlck, 15. Stowe V. Flagg, 2. Stowell V. Ashley, 333. Strack v. Ratterman, 307. Strahan v. Malvern, 293. Strand, In re, 159. Stratton v. Allen, 315. Strauss v. Pontiac, 179, 196. Street v. New Orleans, 353. Street R. Co. v. Doyle, 556, 569. Strenna v. City Council, 341. Sti'ingham v. Railroad Co., 549. Strong V. Dist. of Columbia, 226. V. Stevens Point, 431. Strosser v. Ft. Wayne, 153. Stuart V. Easton, 45. v. Havens, 383. V. Palmer, 334, 337. Stubbs V. Lee. 274. Stuhr V. Curran, 84. I CASES CITED. [The figures refer to pages.] 693 Sturges V. Carter, 478. Sturmer v. Co. Ct, 517. Sturtevants v. Alton, 319. Sullivan v. Gilroy, 279. V. Haacke, 82. V. Helena, 417. V. Leadville, 302, 325, 330, 456. V. Railroad Co., 555. V. School Dist., 102. Summers v. Board, 408. Sunderland v. Martin, 841. Sun Printing & Publishing Ass'n V. New York, 301. Supervisors of Marshall Co. v. Cook, 76. Sutherland-Innes Co. v. Evart, 464. Sutton V. McConnell, 251. V. Snohomish, 216. Sutton's Hospital, Case of, 496. Swackhamer v. Hackettstown, 66, 315, 447. Swain v. Comstock, 149, 185. Swanson v. Ottumwa, 443. Swarthout v. Steamboat Co., 617. Sweeney v. Butte, 427. V. Newport, 418. Sweeny v. Mayhew, 509. Sweet V. Carver Co., 458. Sweetser v. Hay, 494. Swift V. Newport, 85. V. People, 232. V. Richardson. 532, V. Topeka, 180. Swindell v. State, 232. Swinney v. Railroad Co., 553. Sykes v. Columbus, 73. Syracuse Water Co. v, Syracuse, 293. Tacoma Hotel Co. v. Water Co., 601, 606. G07. Taft v. Pittsford, 457. Taggart v. Railroad Co., 569. Tainter v. Worcester, 410. Talbot V. Hudson, 464. Talbot County Com'rs y. Com'rs, 13, 54. V. Queen Anne's Co., 20, 110. Talbot Paving Co. v. Detroit, 307, 308, 505. Talbott V. Iberville Parish, 40. Tallman v. Janesville, 486. Talty V, Atlantic, 424. Tappan v. Bank, 478. Tate V. Greensboro, 280, 282. Tatlock V. Louisa Co., 41, 60, 62. Taxpayers & Freeholders of Vil- lage of Plattsburgh, In re, 483. Taylor v. Austin, 395, 433. V. Ballard, 424. V. Cable Co., 368. V. Carondelet, 111, 116, 515. V. Chandler, 90, 338, 361, 471- 473. V. County Court, 30. V. Davey, 80. V. Donner, 462. V. Ft. Wayne, 114, 153, 155. V. Griswold, 172, 240. V. Henry, 228. V. Lambertville, 64, 230. V. Marion Co., 80, 84. V. Mayor, 47. V. Newberne, 112, 148. V. Owensboro, 407. V. Palmer, 341. V. Patton, 318, 322. V. Peckham, 418. V. Pine Bluff, 371. V. Railroad Co., 344, 360, 385. V. Robinson, 204. V. St. Louis, 331, 391. V. Sandersville, 351. V. School Dist., 102. V. Skrine. 144. V. Sullivan, 262. Taylor Co. v. Standley, 41. Tazewell County Sup'rs v. Daven- port, 478. Teass v. St. Albans. 384. Telephone Cases, The, 576. Telephone Tel. Co. v. Forke. 523. Temple v. Sumner, 3GG, 368. 694 CASES CITED. [The figures refer to pages.] Ten Eyck v. Canal Co., 6, 11, 523, 616. Tennessee Automatic Lighting Co. V. Massey, 143. Terhune v. Passaic, 304. Terre Haute Electric Light & Power Co. v. Power, 592. Terre Haute & L. R. Co. v. Sher- wood, 544. Terrel v. Wheeler, 204. Terrett v. Taylor, 199, 215. Territory v. Crum, 503. V. Guyott, 120. V. Hopkins, 71, V. Jacobs, 271. V. Smith, 260. V. Stewart, 118, 127. Terry v. Richmond, 412. Texarkana v. Leach, 216. Texarkana & Ft. S. R. Co. v. Railroad Co., 387. Texas v. White, 119. Texas & P. R. Co. v. Railroad Co., 523. V. Walker, 38. Textor v. Railroad Co., 386. Thayer v. Boston, 413, 608. V. Burchard, 563. V. McGee, 42. Theilan v. Porter, 250, 372. Theobold v. Railroad Co., 391. Thomas v Ashland, 113. V. Burlington, 495. V. Dakin, 10, 146, 147, 171. V. Gain, 338. V. Lelaud, 205, 207, 211, 216, 471. V. Mason, 52, 347. V. Owens, 260. V. Port Huron, 66, 294, 295, 209, 315. V. Railroad Co., 296. V. Richmond. 63, 136, 292, 296, 301, 311, 457. V. Sorrell, 519. Thomason v. Ashworth, 161, 172. Thomasson v. State, 369. Thompson v. Abbott, 156, 158, 159. T. Ass'n, 237. Thompson v. Carroll, 235. V. Jackson, 282. V. Lee Co., 66, 89. V. Milieu, 364. V. Nicholson, 264. V. Schermerhorn, 113, 226, 227. V. Stickney, 285. Thomson v. Booneville, 485. V. Elton, 293. V. Lee Co., 68. V. Railroad Co., 11, 130. Thorpe v. Railroad Co., 130, 344, 526, 527, 529, 530, 532, 533, 543, 558, 564, 568. Thunborg v. Pueblo, 424. Thurston v. Hancock, 391. V. Little, 90. Tice y. Bay City, 420. V. Mayfield, 204. Tide- Water Co. v. Coster, 49, 525, 619. Tierney v. Dodge, 161. Tiffany v. Illuminating Co., 592. Tift V. Railroad Co., 617. Tileston v. Newman, 157. Tilford V. Olathe, 153. Tillman v. People, 400. Tindley v. Salem, 433. Tinsman v. Railroad Co., 6, 14, 522, 527. Tippecanoe Co. v. Cox, 87, 302. V. Lucas, 79, 91. Tissot V. Telephone Co., 356. Titler v. Iowa Co., 2^, Todd V. Birdsall, 21. V. Laurens, 444. V. Railroad Co., 380. Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., 573. Toledo, P. & W. R. Co. v. Chenoa, 185. Toledo, S. & M. R. Co. v. Railroad Co., 550. Toledo, W. & W. R. Co. v. Jack- sonville, 243, 361, 534. V. Thompson, 561. Toledo & W. R. Co. v. Daniels, 546. 1 CASES CITED. [The figures refer to pages.] 695 Tomlin ▼. Cape May, 227. Torrent v. Muskegon, 400, 401. Towanda Bridge Co., In re, 523, 616. Towers Excelsior & Ginnery Co. V. Inman, 292. Towle V. Nesmith, 510. Town Council of Summerville v. Pressley, 354. Town of Areata v. Railroad Co., 376. Town of Asheville Com'rs v. Means, 175. Town of Bath v. Boyd, 497. Town of Beloit v. Morgan, 206. Town of Bennington v. Smith, 378. Town of Bloomfield v. Bank, 21, 22, 96, 99. V. Trimble, 253, 351, 363. Town of Bristol v. Burrow, 250. Town of Brookville v. Gagle. 372, 494. Town of Castleton v. Langdon, 497. Town of Chattanooga v. State, 412. Town of Cicero v. Chicago, 152. V. People, 500. V. Williamson, 153. Town of Clarendon v. Railroad Co.. fiCO. Town of Clarksdale v. Broaddus, 516. Town of Coloma v. Eaves, 71, 76. Town of Columbia v. Beasly, 484. Town of Concord v. Robinson, 293. Town of Cordova v. Village of Le Sueur Center, 107. Town of Crowley v. Rucker, 370. V. West, 356. Town of Danville v. Shelton, 482. Town of Davis v. Davis, 356. Town of Decorah v. Bullis, 224, 266. V. Dunstan, 367. Town of Dixon v. Mayes. 476. Town of Douglass v. Bank, 72. Town of Drummer v. Cox, 319, 461. Town of Durango v. Pennington, 304. Town of Eastchester, In re, 455. Town of East Hartford v. Bridge Co., 161. Town of Edenville v. Railroad Co., 380. Town of Enfield v. Jordan, 75. Tov/n of Enterprise v. State, 152. Town of Essex v. Day, 510, 511. Town of Franklin v. House, 420. Town of Freeport v. Sup'rs, 20, 36. Town of Geneva v. Cole, 488, 494. Town of Goshen v. Stonington, 596. Town of Granby v. Thurston, 21, 191. Town of Greensboro v. Ehren- reich, 52, 237. 319, 353, 356. Town of Guilford v. Cornell, 212. V. Sup'rs, 92. Town of Henderson v. Davis, 149. Town of Huntsville v. Phelps, 249. Town of Kirkwood v. Meramec Highlands Co., 236. Town of Lake View v. Cemetery Co., 530. Town of Latonia v. Hopkins, 476. Town of Lewiston v. Proctor, 250. Town of Lisbon v. Clark, 232. Town of Londonderry v. Andover, 117. Town of Macon v. Patty, 320, 335, 339, 342, 479. Town of Madison v. Newsome, 302. Town of Marietta v. Fearing, 240, 253. Town of Mason v. Railroad Co., 559. Town of Milwaukee v. Milwau- kee, 157. Town of Montezuma t. Minor, 192. 696 CASES CITED. [The figures refer to pages.] Town of Moutpelier v. East Mont- pelier, 111, 206. Town of Montville v. Haughton, 495. Town of New Boston v. Dunbar- ton, 15, 114, 118, 127, 130. Town of Nome v. Lang, 342, Town of Norman v. Teel, 381. Town of North Hempstead v. Hempstead, 14, 20. 147. Town of Oregon v. Jennings, 100. Town of Ottawa v. Walker, 516. Town of Pana v. Bowler, 71. Town of Petersburg v. Mappin, 313. Town of Plymouth v. Painter, 206. Town of Rosedale v. Hanuer, 351. Town of Rushville v. Adams, 423. Town of Searcy v. Yarnell, 135, 149. Town of Southampton v. Oyster Co., 199. Town of South Portland v. Cape Elizabeth, 157, 158. Town of State Center v. Baren- stein, 176, 240, 242, 367. Town of Stillwater v. Moor, 233. Town of Suffleld v. Hathaway, 354. Town of Suffolk v. Parker, 414, 498. Town of Tipton v. Norman, 251. Town of Tumwater v. Hardt, 264. Town of Union v. Crawford, 25. Town of Washington v. Ham- mond, 352. Town of Washington Com'rs v. Frank, 175. Town of Winamac v. Huddleston, 516. Town of Woodbury v. Brown, 134. Townsend v. Greeley, 496. V. Epstein, 375, 390, 393, 518. Tracy v. Railroad Co., 548. Train v. Disinfecting Co., 354. Trainor v. Board, 257, 277, 287. Trammell v. Russellville, 411. Trapp T. Newport, 307. Travelers' Ins. Co. v. Denver, 451, 458. V. Oswego, 256. Traynor v. Beckham, 500, 503. Treadwell v. Mfg. Co., 535. Trenton Horse R. Co. v. Trenton, 231. Trenton & N. B. Turnpike Co. v. News Co., 611. Trigally v. Memphis, 116, 231. Trltes V. Hitchcock Co., 80. Trott V. Warren, 117, 171. Trowbridge v. Hudson, 307. V. Schmidt, 457. Troy & B. R. Co. v. Lee, 555. Truax v. Pool, 152. True V. Davis, 156, 158. Truman v. Sup'rs, 222. Trunick v. Smith, 540. Trustees v. White, 457. Trustees of Alabama University v. Moody, 305. Trustees of Belleview v. Hohn. 302, 303. Trustees of Blizabethtown v. Lef- ler, 186. Trustees of Hazelgreen v. Mc- Nabb, 229. Trustees of Illinois & M. Canal Co. V. Chicago, 339. Trustees of Ministerial & School Fund V. Parks, 146, 190. Trustees of School Dist. No. 1 v. Jameson, 483. Trustees of Schools v. Tatman, 20G, 208. Trustees of Schools of Tp. 24 v. Trustees, 104. Trustees of Vernon Soc. v. Hills, 224, 225. Tuckahoe Canal Co. v. Railroad Co., 598. Tucker v. Justices, 287. V. Virginia City, 290, 495, 565. Tufts V. Chester, 290. Tullock V. Webster Co., 65. Turner v. Althaus, .546. V. Clark Co., 494. I CASES CITED. [Tba figures refer to pages.] 697 Turner y. Guthrie, 458. V. Maryland, 371. V. Newburgh, 419. V. Water Co., 602. Turney v. Wilson, 543. Tuthill V. New York, 38. Tuttle V. Illuminating Co., 524. Twist V. Rochester, 419. Twyman's Adm'rs v. Frankfort, 407. Tyler v. Beacher, 465. V. Hudson, 594. Tyrrell v. Jersey City, 278. Tyson V. School Directors, 466. u Ulman v. Mayor, 337, 338. Umatilla Irr. Co. v. Barnhart, 618. Uncas Nat Bank v. Superior, 316, 449. Underbill v. Manchester, 408. Union Bank v. Jacobs, 30. Union Bank of Richmond v. Com'rs, 504. Union Coal Co. v. La Salle, 497. Union Co. v. Knox Co., 36. Union Depot & R. Co. v. Smith, 221. Union Electric Telephone & Tele- graph Co. V. Applequist, 586. Union Pac. R. Co. v. Cable Co., 553. T. Cheyenne, 192. T. Goodridge, 564. V. Hall, 528, 543. V. Kansas City, 152, 153. Union Telegraph Co. v. Mellon, 576. Union Tp. v. Rader, 197. Union Trust Co. v. Railroad Co., 540, 568. U. S. V. Addison, 255. V. Alexander, 271. ' V. Brindle, 265. V. Capedevielle, 464. V. Church, 131. V. County of Macon, 504. U. S. V. County Treasurer, 318. V. Green, 273. T. Harris, 561. V. Hartwell, 256. V. Hay, 503. V. Hitchcock, 500. V. Ins. Co., 113. V. Jones, 49. V. Lawrence, 276. V. Memphis, 35, 178, 258, 276. V. Miller Co., 69. V. New Orleans, 202, 203, 206, 210, 313, 462, 463, 483, 497. V. Port of Mobile, 193. V. Railroad Co., Ill, 197, 205, 212. V. Telegraph Co., 579. V. Wight, 505. V. Wright, 263. United States Bank v. Bank, 620. V. Dandridge, 63. United States Express Co. y. Backman, 613. United States ex rel. Brown v. Memphis, 149. United States Waterworks Co. y. Du Bois, 294, 312. Upton V. Hansbrough, 179. Urtel V. Flint, 420. Utter V. Franklin, 73. Vacheron v. New York, 42. Vail V. Amenia, 99. Valley City Salt Co. v. Brown, 620. Valley Co. v. McLean, 76-78. Van Buren v. Wells, 363. Vance v. Little Rock, 149, 207, 462, 473. Vanderbeck v. Jersey City, 341. Vanderbilt v. Adams, 49. Van Der Leith v. State, 253. Vandine, In re, 196, 355. Van Hook v. Selma, 115. Vanhoni v. Des Moines. 410. Van Ness v. Washington, 398. GD8 CA.SKS CITED. [The figures refer to pages.] Van O'Linda v. Lotlirop, 393. Vanover v. Davis, 87, 400. Van Siclen v. Electric Light Co., 590, Vanton v. V^ilson, 272. Van Wagoner v. Paterson, 395. Van Winkle v. Railroad Co., 543. Varner v. Nobleborough, 451, 457, 458. Vason V. Augusta, 352, 355. Vasser v. George, 92, 211. Vaughan v. Johnson, 263, 264. Venable v. Curd, 271. Vermont Cent. R. Co. v. Baxter, 547. Verner v. Sweitzer, 543. X'estal V. Little Rock, 152, 153, 155. Vidal V. Girard's Ex'rs, 511. Village of Bellevue v. Improve- ment Co., 377. Village of Buffalo v. Harling, 493. V. Webster, 179, 196. Village of Carthage v. Frederick, 319, 344. Village of Evanston v. Fitzgerald, 427. Village of Fulton v. Tucker, 391. Village of Gloversville v. Howell, 231. Village of Hartington v. Luge, 153. Village of Itasca v. Schroeder, 517. Village of Kent v. Cut-Glass Co., 300. Village of Loudon Mills v. Tele- phone Circuit, 385. Village of Marseilles v. Howland, 374, 430. Village of Mechanicville v. Rail- road Co., 570. Village of Morgan Park v. Wis- wall, 336, 472. Village of North Springfield v. Springfield, 160. Village of Norw^ood v. Baker, 471, 472. Village of Oquawka t. Graves, 315. Village of Platteville v. Bell, 174. Village of Princeville v. Auten, 379, 517. Village of St. Johnsbury v. Thompson, 179, 192, 231. Village of Shelby v. Clagett, 417. Village of Sheridan v. Hibbard, 496. Village of Syracuse v. Mapes, 156. Village of Winnetka v. Prouty, 379, 381. V. Railroad Co., 389. Villavaso v. Barthet, 235, 236. Vincennes University v. Indiana^ 120, 129, 131, 132. Vionet v. Municipality, 345. Virginia City v. Mining Co., 185. Virginia & T. R. Co. v. Elliott, 549. Voelker v, Railroad Co., 560. Vogel V. Little Rock, 152, 153, 160. V. State, 261. Von Hoffman v. Quincy, 197, 202, 203, 210, 453, 463. Von Phul V. Hammer, 113. Voorhies v. Houston, 458. Vreeland v. Bergen, 185. w Wabasha Electric Co. v. Wymote, 438. Wabash R. Co. v. Defiance, 328, 384, 552. V. Levee Dist, 619. Wabash, St. L. & P. R. Co. v. Illi nois, 563. Waddell, Appeal of, 620. Wade V. Richmond, 34, 156, 517. Wadleigh v. Gilman, 357, 359. Wagner v. Garrett, 246. V. Rock Island, 111, 197, 198, 612. Wahoo V. Dickinson, 134. Waitz V. Ormsby Co., 63, 80. Wakefield v. Newell, 411. CASES CITED. [The figures refer to pages.] 699 Wakeling v. Cocker, 384. Waldraven v. Memphis, 267. Waldron v. Lee, 157. Walker v. Aurora, 395. V. Chicago, 324. V. Cincinnati, 13L V. Ferrill, 271. V. Reidsville, 422. V. Towle. 372. V. Wantland, 508. Walkley v. Muscatine, 49L Wall V. Monroe Co., 69. V. Trumbull, 282. Wallace v. Tipton, 40. V. Trustees, 134, 160, 172, 192. Walls V. Jersey City, 509. Wain's Heirs v. Philadelphia, 233, 234. Walsh V. Matthews, 473. V. Scranton, 333. Walter, In re, 473. Waltman v. Rund, 379. Wamesit Power Co. v. Allen, 281. Wanamaker v. Rochester, 437. Ward V. Farwell, 366, 535. V, Greenville, 238. V. Hartford Co., 26, 29, 30, 53, 54. V. Little Rock. 356. V. Marshall 83, 270. V. Murphysboro, 358. V. Washington, 350. Warehouse Case, The, 601, 611. Waring v. Catawba Co.. 10. Warmolts v. Keegan, 276, 500, Warner v. Beers, 10. V. Holyoke, 3SS. V, Mower, 222. V. New Orleans, 295. Warren v. Boston, 306. V. Charlestown, 22, 95, 139, 182. V. Grand Haven, 338. V. Lyons City, 381. V. Mayor, 112, 148. Warren County v. Nail, 475. Warren County Agricultural Joint Stock Co. V. Barr, 43, 47. Wartman v. Philadelphia, 51, 370, 371. Washington v. Lynch, 364. V. Nashville, 361. Washington Ave., In re, 464, 471. Washington Co. v. Miller. 90. Washington Female Seminary v. Washington Borough, 294. Washington Southern R. Co. v. Lacey, 244, 559. Washington & B. Turnpike Co. v. Maryland, 520. Washington & G. R. Co. v. Var- nell, 544. Watauga Water Co. v. Wolfe, 606, 607. Waterman v. New York, 268. Waters v. Bouvouloir, 455. V. Leech, 175, 244. V. Townsend, 372. Watkins v. Walker Co., 53. ^Vatson V. Coni'rs, 159. V. De Witt Co., 73. V. Huron, 447, 450. V, Kingston, 330. V. New York, 380. Watt V. Jones, 251. Waugh V. Leech, 379. Wayne Co. v. Detroit, 63, 64. V. Reynolds, 81. W. C. Peacock & Co. v. Pratt, 481. Weaver v. Boom Co., 525, 618. V. Cherry, 184. V. Deveudorf, 282. Webb V. Beaufort, 488. V. Demopolis, 384. V. Mayor, 111, 199, 215, 596. Weber v. Dillon. 443. Webster v. Chicago, 501. V. Douglas Co., 458, 516. V. Harwiiiton, 21. Weed V. Boston, 115. V. Greenwich, 25. Weeks v. Milwaukee, 469, 482. Weeping Water v. Reed, 497. Wehn V. Com'rs, 13. Weirlenfeld v. Railroad Co., M9. 700 CASES CITED. [The figures refer to pages.] Weidman r. New York, 432. Weiglitman v. Wasliiugton, 419. V. Washington Corp., 25. Weinstein v. Terre Haute, 423. Weir V. Railroad Co., 49. Weirs v. Jones County, 430. Weis V. Madison, 394. Weismer v. Douglas, 89, 464, 466. V. Douglass Co., 72. Weitz V. Independent Dist, 102, 103. Welch V. Boston, 195. V. Hotchkiss, 350. V. Post, 301. V. St. Genevieve, 224. Welker v. Potter, 326. Wellington, In re, 504. Wells V. Atlanta, 290, 300, 312, 319. V. Burbank, 190. V. McLaughlin, 378. V. Pontotoc Co., 71, 72. V. Salina, 447. V. Savannah, 461. V. Sioux Falls, 444. V. Sup'rs, 43, 47, 71. v. Weston, 85. Wells, Fargo & Co. v. Railroad Co., 140. Welsh, Appeal of, 508. V. Rutland, 406, 409, 413, 418, 499. Welter v. St. Paul, 417. Wenner v. Smith, 83. Wentink v. Passaic Co., 298. Wenzlick v. McCotter, 391. Wesson v. Saline Co., 71. West v. Bancroft, 389, 595. 596. V. Berry, 309, 310. V. Blake, 378. V. Utica, 514. v. Whitaker, 87, 89, 486. Westberg v. Kansas City, 82, 270. West Boylston Mfg. Co. v. Water Board, 595. West Branch Boom Co. v. Land Co., 522. West Chester & P. R. Co. v. Miles, 560. West Chicago Park Com'rs v. Mc- Mullen, 196. Westerhaven v. Clive, 229. Western College of Homeopathic Medicine v. Cleveland, 196, 214, 292, 408. Western North Carolina R. Co. V. Rollins, 526. Western Pennsylvania R. Co. v. Johnston, 547. Western Sav. Fund Soc. v. Phil- adelphia, 196, 290, 414, 600, 608. Western Town Lot Co. v. Lane, 451. Western Transp. Co. v. Newhall, 617. Western Union R. Co. v. Fulton, 559. Western Union Telegraph Co. T. Alabama, 580, 583. T. Allen, 577. V. Attorney General, 580. V. Bierhaus, 523. V. Charleston, 580. V. Electric Co., 589. V. Fremont, 583. V. Griswold, 523. V. James, 583. V. Massachusetts, 581, 583. V. Mayer, 463. V. Mayor, 579, 581, 583. V. Mellon, 576, 581. V. Munford, 576. V. Neill, 523. V. New York, 380, 587. V. Pendleton, 580, 589. V. Publishing Co., 577. V. Railroad Co., 585. V. Taggart, 580. V. Telegraph Co., 581. V. Texas, 577, 580, 583. V. Tyler, 581. V. Wakefield, 587. Westlake v. St. Louis, 495. Weston V. Charleston, 463. West Philadelphia Title & Trust Co. V. Olympia, 451. West River Bridge Co. v. Dix, 49, 535. 545. 610. CASES CITED. [The figure* refer to pages.] 701 West Virginia Transp. Co. y. Line Co., 524. Wetmore v. Board, 103. V. Chicago, 325. Wetzell V. Paducah, 449. Weymouth & B. Fire Dist. v. Com'rs, 206. Wharton v. School Directors, 101. Wheeler v. Cincinnati, 409, 410, 499. V. Com., 220, 263. V. Irrigation Co., 524, 618. V. Plymouth, 411. Whipple V. Fair Haven, 416. V. Henderson, 262. White V. Board, 407. V. Charleston, 94, 360. V. Chowan Co., 53. V. City Council, 26. V. Com'rs, 13. V. Kent, 368, 378. V. Mayor, 454. V. New Orleans, 304. V. New York, 270, V. People, 338. V. Polk Co., 268. V. Railroad Co., 244. V. Saginaw, 323, 474. T. School Dist., 102, 103. V. Stevens, 326. Whitehead v. Manor Borough, 333. White's Creek Turnpike Co. v. Davidson Co., 529. Whitfield V. Carrollton, 414. V. Longest, 364, 497. V. Meridian, 417. V. Meridian, 421. V. Paris, 407, 408. Whiting V. New Baltimore, 567. V. Quackenbush, 338. V. Railroad Co., 6, 522. V. West Point, 461. Whitmier & Filbrick Co. v. Buf- falo, 362. Whitney v. Hudson, 224. V. New Haven, 128, 219, 227, 456. V. Port Huron, 232. Whitney v. Ticonderoga, 423. Whitney Arms Co. v. Barlow, 614. Whitson V. Franklin, 360. Whyte V. Mayor, 473. V. Nashville, 226, 239. Wiegel V. Pulaski Co., 55. Wiggin V. Mayor, 324. V. St. Louis, 424. Wiggins V. Chicago, 367. Wilbur V. Springfield, 338, 473. Wilcox V. Chicago, 409. V. Ellis, 478. V. Hemming, 236. V. People, 278. Wild V. Deig, 228, 545. V. Paterson, 418, 518. Wilder v. Cincinnati, 338. V. East St. Louis, 205. V. Railroad Co., 558. Wiley V. Bluffton, 163, 173. V. Parmer, 482. Wilhelm v. Cedar Co., 65. Wilkes V. Dinsman, 282. Wilkie V. Chicago, 367. Wilkins v. Detroit, 335. Wilkinson v. Cheatham, 464. V. Peru, 76. Willard v. Albertson, 327. V. Newburyport, 97. V. Pike, 475. Willett V. Young, 280. Williams v. Bank, 120, 12L V. Bergin, 307. V. Brace, 220. V. City Council, 250. V. Gas Co., 599, 605, 606. V. Holden, 341. V. Joyce, 325. V. Nashville, 137, 156, 164, 165. V. New Orleans, 498. V. Rahway, 501. V. Railroad Co., 392, 550, 556. V. School Dist, 224, 267, 486. V. Society, 380. V. Warsaw, 351. Williamsport, & N. B. R. Co. v Railroad Co., 549. Williamson v. Keokuk, 72. 448. 702 CASES CITED. [The figures refer to pages.] Williamson v. New Jersey, 4G3, 480. Williamson County v. Faison, 315. Williamson's Syndics v. Smoot, 9. Willis V. Chapman, 7. Willouglaby v. City Council, 302. Wills V. Ft. Smith, 371. Wilmington & W. R. Co. v. Reid, 4.54. Wilson, In re, 246, 369. V. Aberdeen, 452, 458. V. Allegheny, 375. V. Bro\yn, 82. V. King, 274. V. Lexington, 485. V. Mayor, 508. V. Neal, 459. V. School Dist, 21, 102. V. Seattle, 509. V. Spencer, 253. V. Wheeling, 423. V. White, 425. V. Wichita Co., 88. Wilt V. Redkey, 286. Wingate v. Ketner, 487. V. Sluder, 463. Winlder v. Halstead, 516. Winspear v. Holman, 21. Winston v. Salem, 476. V. Taylor, 320. V. Westfeldt, 75. Winter v. Montgomery, 488. Winters v. George, 159. Winton Coal Co. v. Com'rs, 477. ^^'isby V. Bonte, 381. Wisconsin Cent. R. Co. v. Taylor Co., 90. Wisconsin Industrial School v. Clark County, 464. Wisconsin Keeley Institute Co. v. Milwaukee, 532. V. Milwaukee County, 51. Wisconsin, M. «fc P. R. Co. v. Jacobson, 542, 546. Wisconsin Telephone Co. v. Osh- kosh, 575. Witheril v. Mosher, 410. Witherop v. Board, 105. Wolcott V. Lawrence Co., 54. Wolf, Ex parte, 222, 309. V. District of Columbia, 426. V. Oiler, 452. V. Philadelphia, 472. Wolff V. New Orleans, 453. Wood v. Bangs, 45, 483. V. Brooklyn, 250. V. Draper, 514. V. Hinton, 411. V. Mears, 383. V. Tipton County, 48, 53. V. Waterworks Co., 382. Woodfolk V. Railroad Co., 555, 564. Woodhull V. New York, 407. Woodman v. Nottingham, 431. Woodruff V. Eureka Springs, 152, 153. Woods V. Armstrong, 371. V. Chicago, 325. V. Madison Co., 57. Woodward v. Railroad Co., 614. Woolf V. Chalker, 372. Woolley V. Baldwin, 284. Worcester Agricultural Society v. Worcester, 489. Worden v. New Bedford, 405. Worley v. Columbia, 405. V. Harris, 149. Worth V. Fayetteville, 485. Worthiugton v. Covington, 304. Worthley v. Steen, 192. Wright V. Boston, 395, 472. V. Chicago, 462, 483, 484. V. Defrees, 236. V. Hughes, 292. V. Jacobs, 271. V. Kinney, 501. V. Light Co., 573. V. Pipe Line Co., 292. V. Railroad Co., 359. Wrought Iron Bridge Co. v. At- tica, 92. Wyandotte Electric Light Co. v. Wyandotte, 143, 3S5. Wyatt V. Irrigation Co., 618. Wyker v. Francis, 501. CASES CITED. [The figures refer to pages.] 703 Yale University v. New Haven, 466. Yaple V. Morgan, 257. Yarnell v. Los Angeles, 517. Yates V. Milwaukee, 340, 356, 371. V. West Grafton, 517. Yeaton v. Bank, 7. Yick Wo, In re, 242. V. Hopkins, 242. 310, 368 York V. Railroad Co., 484. York Telegraph Co. v. Keesey, 523. York Telephone Co. v. Keesey, 575. Youghiogheny Bridge Co. v. Rail- road Co., 551. Youghiogheny & Ohio Coal Co. ▼. Railroad Co.. 617. Young V. Carey, 505. V. Chadima, 389, 392. Young V. Charleston, 418. V. Clarendon Tp.. 448. V. Iberville Parish, 62. V. Kansas City, 206, 427. V. People, 329. V. Rothrock. 389, 392. V. Thomas, 368. Yonniiblood v. Sexton, 481. Youngs V. Hall, 204. Zabriskie T. Railroad Co., 112, 148. Zalesky v. Cedar Rapids, 320. Zehren v. Light Co., 557. Zeigler v. Express Co., 617. Ziegler v. Chapin, 326. Zimmer v. State, 147. Zottman v. San Francisco, 172, 226, 304, 474. INDEX. (the figukes refeb to pages.] A ABUTTING OWNERS, access, 389. additional burdens, 391. apportionment of special assessments, 338, il2. awnings, 392. balconies, 392. lateral support, 330, 391. telegraplis, 585. vaults, 390. water mains and pipes, 594. ACCEPTANCE OF CHARTER, condition of grant, 182. legislative power, 184. delegated, 183. special cases, 183. unnecessary, 181. ACCESS, property of abutting owners, 389 ACTIONS, counties, 53. municipal corporations, 492. certiorari, 508. chancery, 510, 512. criminal, 518. ex contractu, 493, 494. ex delicto, 497, 498. injunction, 515. mandamus, 500. quo warranto, 506. remedies for, damages from improvements, 223. quasi-corporations, 23. I NO. Corp. — 45 (705) 706 INDEX. [The figures refer to pages.] ADJOURNMENT, meetings, 222. ADVERTISEMENTS, making of improvements and special assessments, 322, 337. municipal contracts, 306. AGENTS, county, 38, 61, 64, 79. defined, 285. issuing bonds, 70. municipal, 256, 301. ALDERMEN, act only as a body, 226. fiduciary relation, 264. motives, 236. officers, 259. ALLEYS, see "Streets.** ALTERATION AND DISSOLUTION, effected how, 152. legislative poveer, 151. AMENDMENT, charter, 160. municipal records, 228. AMUSEMENTS, regulation, ^65. ANIMALS, vagrant. 363. ANNEXATION, municipal territory, 152, 154. APPOINTMENT, officers, 262. APPORTIONMENT, debts, 157. municipal taxes, 470. mode, 473. special assessments, 338, 472. APPROPRIATIONS, municipal, 459. ARRESTS, powers of officers, 378. INDEX. 707 [The figures refer to pages.) ASSESS:\IENTS, see "Special Assessments"; •'Taxation." ASSUMPSIT, application of doctrine of implied contract, 67. liability for money borrowed, 297. property or services, 62. ATTACHMENT, against property of municipality, 406. ATTORNEYS, appointment, 262. county may employ, 41. AUTOMOBILES, regulation, 360. AVENUES, see "Streets." AWNINGS, rights of abutting owners, 3nasi," and "Quasi Public" Cor- porations, attributes, 2, 3. classified, 4. created, how, 14, 126. defined, 1, 2. incidents, 3. members, 7, 8, 9, 179. nature, 7. origin, 17, 18. private and public distinguished, 4L qualities, 7, 8. termination, 8. INDEM. 711 [The figures refer lo pages.] COUNCIL, act as a body, 226. de facto, 224. meetings, 218. mode of procedure, 223. motives, 236. quorum, 219. COUNTIES, attorney, may employ, 41. borrowing money, 66, 67. buildings, 44. buy, hold, and sell realty, 42, 43. claims against, 80. contracts, 57. agents, 60, 61, 63, 64. authority, 57, 58, 59, 60. implied when, 62. executed by whom, 60. extraordinary expenditures, 59. form of, 63, 64. implied, 62. limitations as to objects and amount, 58, popular assent, 59. ratification, 64, 65. void, when, 57, 58. eminent domain, 48, 49. fiscal management, 79. government, 38. legislative control, 36. liabilities, 53. are solely statutory, 54, 55. rule of strict construction, 55, 56. officers, 38, 79. compensation, 81, 82. de facto and de jure, 83, 84. poor, support of. 45. powers, 31, 32, 39, 41, 42, 43, 44, 45, 46, 47, 50, 51, 52. none Inherent, 39. property, 86. legislative control, 37. revenue, 84. legislative power over, 90. 91, 92. roads, bridges, and ferries, 46. schools, 45. 712 INDEX. [The figures refer to pages.] COUNTIES— Cont'd, taxation, 85. assessment, 85. collection, 85. levy, 86, 87. principles, 89. torts, 48. type of quasi corporation, 31. varied in Nortb, South, and West, 32, 33. COUNTY BOARDS, authority, 41, 60. constitution of, 38, 39. COUNTY BONDS, authority indispensable, 71, 72. bona fide purchasers, 70, 71, 73. estoppel, when and bow, 74, 75. excessive issue, 77, 78. irregularities, 73. not fatal, 73. cured by waiver, 73, 74. Issued by agents, 70. law of agency applies to, 71. negotiability, 09. promissory notes, are, 69. public purpose essential, 71. otherwise void, 71. ratification, when and when not possible, 72, 73, 74. recitals, 76. conclusive when, 76. control facts, not law, 77, 78. COUNTY BUILDINGS, construction, 44. COUNTY CLAIMS, presentation and audit, 80. COUNTY COMMISSIONERS, see "County Boards." COUNTY PAPER, not negotiable, 65. COURTS, jurisdiction of violations of municipal ordinances. 252. INDEX. 713 [The figures refer to pages.] CREATION OF CORPORATIONS, act of sovereign power, 14, 126. bodies having power, 129. delegation of power, 127. implication, 145. mode of creation, 137. popular consent, 139. reconciliation of conflicting decisions, 128. CREDITORS, right in property, 167. right to funds, 452, 490. CRIMINAL PROSECUTION, municipalities, 518. CROSSINGS, regulation of operation of railroads, 361. D DAMAGES, improvements, 330. special tribunals, 334. statutory, . improvements, 332. remedy, 333. DEBTS, apportionment, 157. power to contract, 57, 441. limitations as to objects or amount, 58, 442 security for, 167. DEDICATION, acceptance, 381. dedicator, 380. mode, 379. common law, 380. statutory, 381. DE FACTO CORPORATIONS, defined, 143. essential elements, 143. DB FACTO COUNCIL, essential elements, 224. 714 INDEX. [The figures refer to pages.] DE FACTO OFFICERS, compensation, 82, 269. defined, 82, 2G6. validity of acts, 266. DELEGATION OF POWER, creation of corporations, 127. eminent domain, 48, 547. municipal legislation, 230. police power, 345, 377. taxation, 85, 460. DISCRETION, constitutional limitation, 136, 140. legislative, plenary, 133, 151, 15U, 157, 166. municipal council, assessments, 324, 336. contracts, 301, 308. expenses, 454. sewers, 394. DISCRIMINATION, lighting companies, 592. railroads, 561. water companies, 599. DISSOLUTION, effected how, 152, 1G5. legislative power, 131, 163. constitutional limitation, 167. DIVISION, municipal territory, 157. DOGS, regulation, 364. DRAINS, see "Sewers." DUE PROCESS OF LAW, improvements. 333. special tribunals, 334, 336. E ELECTIONS, creation of corporation, 139. issue of bonds, 59. officers, 262. INDEX. 715 [The figures refer to pages.] ELECTRIC COMPANIES, quasi public corporations. 574. ELECTRIC LIGHT COMPANIES, discrimination unlawful, 592. new servitude, 591. quasi public corporations, 591. ELEVATED RAILWAYS, quasi public corporations, 541, EMINENT DOMAIN, counties, 48, 49. municipalities, 378, 396. quasi public corporations, 614. railroads, 545. abuse, 553. compensation, 554. delegated power, 547. how exercised, 5-19. land already taken, 551. sewerage, 395. telegraphs, 583. EMPLOYES, municipal, 256, 287. ENTERTAINMENT, expenditures by municipality, 4.55. EQUITY, relief to or against mtinicipality, 510, 512 ESTOPPEL, county, 73. municipality, 294. EVIDENCE, corporate records, 222. ordinances, 251. proceedings of counsel, 223. EXECUTION, against municipality, 496. EXPENSES, county, 57, 58, 62. municipal, 454. EXPRESS COMPANIES, quasi public corporations, 612, 616. ■Jig INDEX. [Tlie figures reler to pages.] F FEDERAL CORPORATIONS. creation by Congress, 129. FEDERAL POWEIJK, see "Railroads"; "Telegraphs." FERRIES, duties of counties, 46, FINES, power to Impose, 248. FIRE, apparatus, 360. extinguish, 360, limits, 357. summary power, 360. FIRE ENGINE COMPANIES, quasi corporations, 108. A FIRE LIMITS, power to prescribe, 357. FIREMEN, negligence of, 409. FISCAL MANAGEMENT, county, 79. municipality, 441. FLAGMAN, street crossings, 301. FORFEITURES, power to Impose, 248. FORMER JEOPARDY, prosecution under both statute and ordinance, 232. FRANCHISES, classified, 217. revocable, 207. source, 595. FRONTAGE, basis of assessments, 3.38. FUNDS, municipal, 451. rights of creditors, 154. INDEX. 717 ITlie figures reler to pages. 1 G GAS co:mpanies, authority to supply gas, 593, 598. discrimination, 599. eminent domain, 593, 59fl. franchises, 595. legislative control, 596. license, 595, 597. monopoly, 598. municipal agencies, 593. municipal control, 597. 600. municipal ownership, 593, 608. liability, 608. police power, 597. powers enumerated, 596. quasi public, 593. rate regulation, 600. basis, 601. reasonable, 601. judicial question, 603. regulations, 605. notice, 606. reasonable, 607.» GENERAL LAWS, authorizing incorporation by communities, 148. charter obtained under, 186. GENERAL WELFARE, powers conferred by charter, 173. GOVERNMENTAL FUNCTIONS, defined and distinguished from municipal functions, 176. liability for failure in, 407. GRADE, change, 331. crossings, 552, 559. H HEALTH, powers of counties, 51. powers of municipalities, 853. HIGHWAY, railx'oad, 539. street, 374. 71S INDEX. [The figures refer to pages.] HISTORY, of municipal corporations, 1L'L'-125. HOLDING OVER, officers, 270. HOUSES OF ILL FAME, prohibition, 3U5. I ICE AND SNOW, duty to remove from streets and sidewalks, 428. IMPAIRING OBLIGATIONS, municipal contracts, 313. IMPLICATION, corporation created by, 145. liability on contract, 67, 297. IMPRISONMENT, enforcement of fine, 248. summary arrest and confinement, 373. IMPROVEMENTS, acceptance, 329. contracts, authority, 327. metliod, 329. powers inalienable, 328. damages, '-VM. extraordinary, 319. general, 317. municipal discretion, 324, 3M0. popular conscMit, 322. preliminary proceedings, 110. special tribunals, 334. INCORPORATION, see "Creation of Corporations." INDEBTEDNESS, power to contract, 57, 441. limitations as to object or amount. 58, 442 INDEPENDENT CONTRACTORS. liability for injuries from negligence, 43G. INDICTMENT, .municipalities, 518. INDEX. 719 [The figures refer to pages.] INHABITANTS, members of municipal corporation, 7, 179. INJUNCTION, municipal corporations, 515. railroads, 570. INSPECTION, corporate records. 229. INTERSTATE COMMERCE ACT, regulations of railroads, 563. IRREGULAR INCORPORATIONS, see "De Facto Corporations." J JUDGMENT, enforcement against municipality, 496. JUDICIAL NOTICE, certificate of incorporation under general law, 186. special charter, 184, JUDICIAL POWERS, quasi public corporations, 531. JURISDICTION, violations of municipal ordinances, 252. JURY TRIAL, proceedings for violations of municipal ordinances, 251. L LATERAL SUPPORT. abutting property, 330, 391. LEGISLATIVE AUTHORITY, expressed how, 16. LEGISLATIVE CONTROL, bridges, 215. charter, 160-163. contract, 209. counties, 36, 90. expenditures, 201, 211. franchises, 207. governmental powers, plenary, 177. limitation. 198. municipal powers exempt from, 178. 720 INDEX. [The figures refer to pages.] LEGISLATIVE CONTROL— Cont'd. obligations, 211. officers, 199. ordinances, 253. property, 213. quasi public corporations, 530, 535. revenues, 201. qualified, 203. streets, 215. supervision of municipality, 194. taxation, 211, 462, 479. water companies, 596. LEGISLATIVE SANCTION, creation of corporation, 14. creation of county, 34. LEGIhJLATURE, change municipalities, 151, 160. create corporations, 14, 126. 129. discretion plenai'y and conclusive, 133. dissolve corporations, 160. impose obligations, 211. repeal ctiarters, 163, 190. method, 192. LETTING CONTRACTS, see "Municipal Contracts." LIABILITY, contracts, 290, 494. crimes, 518. torts, 404, 412, 416, 418, 422. 425, 431, 498. LICENSE, authority of municipality, 349. gas and water companies. .397. occupations and amusements, 36G. taxes, 484. LIGHTING, electric, 591. gas, 593. LIMITATION, indebtedness, 58, 442. le.sislative power, 198, 19t) police power, 346, 348. INDEX. 721 [The figures refer to pages.] LIQUOR vSELLIXG, prohibiting, 365. regulating, 365, 369. by ordinance, 246. LOANS, to municipal corporations, 313, 44a LOCAL ASSESSMENTS, see "Special Assessments"; "Taxation." M MAJORITY, council, 223, 263. popular vote, 139, 449, MANDAilUS, municipal corporations, 490, 496, 500. granted, 500. refused, 503. MARKETS, establishment and regulation, 370. MAYOR, functions, 220. MEETINGS, adjourned, 222. called, 218. mayor, 220. notice, 218. quorum, 219. regulations, 225. stated, 218. town meetings, 98. MEMBERSHIP, what constitutes, 7, 8, 179. MOB, e.xercise of police power, ?,i9. 408 liability for destruction of property, 408. MONOPOLY, water, 598. MONUMENTS, control of erection in parks and squares, 309. IXG.CORP. — 46 722 ^^°^^- IThe figures refer to pages, l MOTIVES, aldermen, 23ft council, 2oG. MUNICIPAL BONDS, see "Bonds"; "Municipal Contrncts." MUNICIPAL CONTPACTS, actionable, 289. annulling, 312. bonds, 314, 316, 445. power to issue, 448. validity, 44£>. borrowing money, 314, 316. power not inherent, 446. contracting agencies, 301. corporate object, 300. estoppel, 295. form, 305. illegal, 309. implied promise, 297. improvements, 326. irregular, 294. letting, 305. advertisement, 306. bids, 306. mode, 304. money contracts, 314. negotiable paper, 445. protected by federal Constitution, 313. ratification, 294, 303. subject-matter, 300. ultra vires, 291. partially, 296. void, against public policy, 310. contrary to law, 311. with ofllcers, 309. MUNICIPAL CORPORATIONS, actions, 492. alteration, 151. attributes, 110-116. boundary of authority, 180. budget, 455. certiorari, 508. INDEX. 723 [The figures refer to pages. 1 MUNICIPAL CORPORATIONS— Cont'd claims, 457. created, how, 112, 126. creditors. 4.j2. defined, 12, 14, 110. dissolved, how, 151, 165. expenses, 454. funds, 451. specific, 452. history of, 1^2-125. indebtedness, 441. kinds, 444. limitation, 442, 445. Injunction, 515. mandamus, 500. negotiable paper. 315. prescription, 117. public utilities. 608 quasi corporations are not, 121 quo warranto, 506. railroad regulation, 565. state is not, 118. termination, 151, 164. territories are not, 120. validity, how tested. 149. water companies, 597, 600. MUNICIPAL WARRANTS^ issue and effect, 450. N NEGLIGENCE, municipal, 405. 412, 415. NEGOTIABLE PAPER, counties, 68, 69. municipalities, 315. NEW ENGLAND TOWNS. are quasi corporations only. 22. attributes chiefly municipal, 95, 96, 97. functions conferred by statute, 97. meetings, annual, 98. notice of, 98. --.. INDEX. 724 [The figures refer to pagei.j NOTICE, city claims, 451. condemnation proceedings, 549. council meetings, 218. county claims, 80. special assessments, 337. town meetings, 98. NUISANCES, county, 51. municipal, 355. OATH, of officers, 264. OBLIGATIONS, impairing, 313. imposed by legislature, 211. see "Bonds" ; "Municipal Contracts." OBSTRUCTIONS, streets, 383. OCCUPATIONS, prohibited, 3(3.5. regulated, 366. OFFICE, acceptance, 263. contest, 271. resignation, 272. acceptance, 272. Implied, 274. OFFICERS, aldermen, 259. appointment, 262. civil service, 278. compensation, 81, 82. de facto and de jure, 83, 84, 266. election, 2G2. eligibility, 260, 261. fiduciary character, 264. governmental, 191), 257, 2.59. holding over, 270. judicial control, 275. municipal, 200, 254, 257, 259. INDEX. 12o [The figures refer to pages.] OFFICERS— Cont'd. personal liability, 280, 281. reimburse municipality, 285. removal, 277. resignation, 272. salary, 84. torts, 281. veteran acts, 279. who are, 38, 79. ORDINANCES, authorized, 236. by-laws, 230. contrary to statute, 237. contravening common right, '-' enactment, 231. essentials, 234, 235. fines, 248. forfeitures, 248. form, 232. imprisonment, 248. liquor selling, 246. mode of enactment, 231. oppressive, 238. partial. 239. penalties, 248. police, 246, 371, 372. procedure, 249. proof of, 251. publication, 233. public policy, 240. reasonable, 244. record. 232. repeal, 253. resolutions. 230. sanitary, 246. trade regulations, 2.39. unconstitutional, 237. unreasonable, 241. veto, 2.32. violation and enforcement, 371, 372. ORGANIZATION, municipal corporations, 139, 143. 726 INDEX, [Tbe figures reter to pagoi.] ORIGIN, corporations, 17, 18. municipalities, 122 PARKS, dedication, perversion, 398. wittidrawal, 399. eminent domain, 396. extraterritorial, 396. municipal concern, 397. proper uses, 399. PAUPERS, support, 45. PEACE AND ORDER, police power of municipality, 352. PENALTIES, violation of ordinances, 248. PERSONAL LIABILITY, officers, 280, 281. exemptions, 284. POLICE OFFICERS, summary powers, 373. torts of, 407. POLICE POWER, amusements, 365. arrests, 373. comfort, 362. county, 50. limited scope, 51, 52. dangerous forces, 361. delegable, 50, 345. double, 350. exercise, 349, 371. extent, 348. fire, apparatus, 360. extinguish, 360. limits, 357. Imprisonment, 373. INDEX. 727 [The figures refer to pages.) POLICE POWER— Cont'd. licenses, 349. limitations, 346. liquor selling, 365, 369. markets, 370. municipal attribute, 343. nuisances, 355. occupations, 365. peace and order, 352. safety, 357. sanitation, 353. sovereign, 343. summary, 349, 372. arrest and imprisonment, 872. water companies, 597. POLITICAL POWER, not a vested right, 206. POOR, support, 45. POPULAR CONSENT, creation of municipality, 140. extraordinary expenditures, 59. issue of bonds, 76, 448. special assessments, 322. POWERS, Classified, 176, 188, 217. see "Bonds"; "Governmental Functions"; "Improvements"; "Legislative Control" ; "Municipal Contracts" ; "Ordinan- ces"; "Police Povfer." PRELIMINARY PROCEEDINGS, special assessments, 321. PRESCRIPTION, existence of public corporations, 16, 117. PRICES, public regulation, 600. PRIVATE CORPORATIONS, distinguished from public, 4. PROCEEDINGS, meetings of council, 223. PROCEDURE, violations of municipal ordinances, 249.' Y28 INDEX. [The figures refer to pages.] PROHIBITION, occupations and amusements, 365. PROMISSORY NOTES, county, 69. PROOF, oi'diuauces, 251. proceedings of council, 223. PROPERTY, classified, 217. creditors' rights, 215. municipal, 213. PUBLIC BUILDINGS, essential, 44, 400. land therefor, 400. municipal discretion, 402. power to erect and maintain, 44, 401. PUBLIC COMFORT, protection, 362. PUBLIC CORPORATIONS, classified, 12. created how, 14, 15. defined, 11. distinguished from private, 4. PUBLIC FUNCTIONS, defined and distinguished. 176. liability for failure in, 407 PUBLIC HEALTH, see "Health." PUBLIC IMPROVB^SIBNTS, see "Improvements." PUBLIC POWERS, Inalienable, 328. PUBLIC PURPOSES, taxation, 468. PUBLIC REGULATION, quasi public corporations, 527, 536, 557, 564, 609. PUBLIC SCHOOLS, see "School Districts." PUBLIC SQUARES, see "Parks." INDEX. 729 [The figurefa reier to pages.] QUARANTINE, cities, 354. counties, 51. QUASI CORPORATIONS, boards constituting, 107, 108. classified, 93, 94. defined, 7, 12, 19. distinguished from corporations, 13. 10. 27. districts whicli are, 106. enumerated, 20. governmental only, 27. immunities, 23. reasons for, 24, 25, 26. local benefits, 28. no charters or inherent powers, 27, 29, 30. QUASI PUBLIC CORPORATIONS, classified, 615. bailees, 617. banks, 620. common carriers, 616. real estate companies, 619. defined, 4, 12, 14, 521. distinguished from private, 6, 526. eminent domain, 614. judicial power, 531. legislative control, 530, 535. public regulation, 527, 536. objects and limits, 533. roster, 523. test. 609. rules, 610. public duty. 613. public franchise, 612. public use, 611. sovereign power, 614. QUORUM, meeting of council, 219. QUO WARRANTO, usurpation of franchise or office, 508. 730 INDEX. [The figures refer to pages.] RAILROADS, common carriers, 542. public duties, 543. discriminations, 561. eminent domain, 545. abuse of power, 553. compensation, 554. delegated power, 547. how exercised, 549. liow much land, 550. lands already taken, 551. exactions, 562. federal control, 563. judicial power, 570. municipal regulation, 565. public control, 557. bases, 557, 564. mandamus and injunction, 570. public qualities, 530. common carrier, 542. highway, 530. sovereign agent, 545, 547. public use, 564. Sherman act, 562. transportation companies, not, 540. RATIFICATION, county contracts, 64. municipal contracts, 295, 303. RECITALS, bonds, 76. RECORDS, corrected, 228. evidence, 227. Inspection, 229. REMEDIES, see "Actions." REMOVAL, officers, 277. REPAIR, streets, 418. INDEX. 731 (The figures refer to pages.l REPEAL, charter, 163. 191. method, 192, ordinances, 253. RESIDENTS, members of mimicipal corporation, 7, 179. RESIGNATION, officers, 272. RESOLUTION, see "Ordinances." REVENUES, legislative control, 201. qualified. 203. examples, 204. RIOT, destruction of property, 408. suppression, 39S, 408. ROADS, see "Streets." s SAFETY, police power of municipality, 357. SALARY, officers, 267. de facto, 269. holding over, 270. SANITATION, county, 51. municipality, 353. SCHOOL DISTRICTS, contracts, 103. directors, 104. existence, 101. functions, 100, 101. management, 102. SERVITUDES, abutting property, 391, 569, 585. 591 732 INDEX. IThe figures refer to pages. 1 SEWERS, compulsory, 393. conuections, 395. eminent domain, 395. expense, 395. extraterritorial, 394. maintenance, 39<). municipal discretion, 394. negligence, 396. SHERMAN ACT, application to interstate commerce, 562. SIDEWALKS, abutting owners, 389. care of, 426. coal cliutes and hatchways, 427. tee and snow, 428. see "Streets." SINKING FUND, rights of creditors, 453. SITUS, property for taxation, 476. SNOW AND ICE, duty to remove from streets and sidewalks, 428. SOIL, lateral support, 330, 391. SPECIAL ASSESSMENTS, apportioning, 338. authority, 318, 320, 335. basis, 335. benefits, 335, 336. collection, 340. confiscation, 338. constitutional questions, 335, 387. due process of law, 336. estoppel, 342. exemptions, 339. frontage rule, 338. judgment in personam, 340. lien enforced, 341. assignee, 341. municipal discretion, 336. notice, 337. INDEX. 733 LThe figures refer to pagea.l SPECIAL ASSESSMENTS— Cont'd, personal liability, 341. petition, 321, 342. recoupment, 341. set-off, 332. SPECIAL CHARTERS, municipal corporations, 137, 169. SPECIAL MEETINGS, council, 218. STATE, municipal corporation, is not a, 118. STREET RAILWAYS, electric or horse power, 569. franchises and licenses, 568. municipal regulation, 566. mode and measure, 567, 570. new servitude, 569. STREETS, iibandonment, 388. abutting owners, 3S9. bridges, 429. dedication and acceptance, 379. definition, 374. legislative control, 215, 375. delegation, 377. lights. 425. obstructions, 423. railways, 386. reasonable care, 418, 421. surface, 387. underground, 387. uses, paramount, 382. subordinate, 383, 386. vacation, 388. see "Sidewalks." SUBMISSION TO VOTE. creation of municipality, 140. extraordinary expenditures, 59. issue of bonds. 76, 448. special assessments, 322. 734 INDEX. IThe ligures rel'er to pages.] SUITS, see "Actions." SUMMARY PROCEEDINGS, exercise of police power, 349. violations of ordinances, 372. SUPERVISORS, county, 34, 38, TAXATION, county, 85. assessment, 85. collection, 88. legislative povper, 206, 211. levy, 86, 87. principles, 89, 90. sovereign power, 90, 91, 92. municipal, 460. apportionment, 470. mode. 473. assessments. general, 487. local, 472. collection, 487. compulsory, 479, 490. creditors' rights, 490. mandamus, 490. legislative control, 462, 479. license tax, 484. lien, 4SS. limitations, 481. local assessments, 472. power delegated, 460. express, 481. implied, 482. public purposes only, 463. judicial question, 465. what are, 468. record evidence, 485. subjects, 474. adjacent lands, 479. choses in action, 477. situs, 476. taxes are debts. 488. INDEX. 735 [The figures refer to pages.] TAXPAYERS, actions, 513, 514. TELEGRAPH COMPANIES, abutting owners, .585. common carriers, 575. complexity, 589. construction, 588. eminent domain, 583. just compensation. 584. federal agents, 580. federal control, 578. Include telephone companies, 575. municipal control, 586. operation, 588. quasi public corporations, 574. state control, 580. limitations, 582. TELEPHONE COMPANIES, see "Telegraph Companies." TERRITORIES, municipal corporations, not, 120. TERRITORY, MUNICIPAL, addition to, 151. adjacent or contiguous lands, 152-154. farming lands, 155. diminution of, 156. division of, 157. limit of authority, 180. TORTS, action, 406, 418. conflicting decisions, 416, 417. defenses, 419. drains, 431. governmental duty, gives no action, 400. municipal function. 415. Independent contractor, 4'-Mi. ministerial functions, 430. municipal liability, 404. municipal property, 413. officers, 281. 407. public functions. -107. do not give action, 406. 736 INDEX. [The figures refer to pas-et.1 TORTS— Cont'd. respondeat superior, 435. sewers, 431. sidewalks, 425. coal chutes, 427. hatchways, 427. ice and snow, 428. latent defects, 426, statutory liability, 412. streets, bridges, 429. lights, 425. obstructions. 423. reasonable care, 418, 421. tests of liability, 419. ultra vires acts, 437. taxes V. torts, 438. TOWNS, see "New England Towns." TOWN MEETINGS, annual and special, 98. TOWNSHIPS, local governments, 90, 91. TOWNSHIP BONDS, validity, 99, 100. TREES, cutting or trimming by electric companies, 590. TRIAL BY JURY, proceedings for violations of municipal ordinances, 251. TRUSTEES, municipality, 163. u ULTRA VIRES, see "Municipal Contracts"; "Torts." USURPATION, franchise or ofhce, 50b. INDEX. 237 (The figures refer to pages.] V VAULTS, under sidewalk, 390. VESTED RIGHTS, creditors, 167, 452, 490. VETERAN ACTS. municipal offices, 279. . VETO, ordinance, 232. VIOLATION AND ENFORCEMENT, ordinances, 371. VOTE, see "Subniission to Vote." w WARRANTS, issue by municipality and effect, 450. WATER, municipal supply, 593, 608. supply by water companies, 594. WATER COMPANIES, abutting owners, 594. customers' rules, 605. discrimination, 599. eminent dumain, 594, 596. franchises, 595. legislative control, 596. license. 595, 597. monopoly, 598. municipal agencies, 594. mimicipal control, 597, 600. municipal ownership, 608. liability, 608. police power. 597. powers enumerated, 596. quasi public. 593. rate regulation. 600. basis. 001. reasonable. 601. judicial question, 603. Ing.Corp. — 47 738 INDEX. [The figures refer to pages.] WATER COMPANIES— Cont'd. regulations, 605. notice, 606. reasonable, 607. WOODEN BUILDINGS, restrictions, 357. WRITS, See "Certiorari"; "Injunction"; "Mandamus"; "Quo Warranto.' WEST PUBLISHINQ CO., PRINTERS AND STERKOTTPERS, ST. PAUL, MINN. Ct?e ^ornbook Series Comprises elementary treatises on all the principal sub- jects of the law. The books are made on the same gen- eral plan, in which certain special and original features are made prominent. die "hornbook plan." Is to set forth the leading principles in black-letter (like this) And to give the necessary amplification, explanation, ap- plication, etc., under the principles, in type like this. The authorities are grouped in footnotes at the bottom of the page.* This shows why these books are found so serviceable as practitioners' handbooks. A lawyer may want to be re- minded of the law ; in that case he wants it presented in such a way that he can pick out what he needs with the least trouble. *The Hornbook Series now includes treatises on Agency, Admi- ralty. Bailments, Bills and Notes. Common-Law Pleadina:, Constitu- tional Law, Contracts. Corporations, Criminal Law, Criminal Pro- •cedure. Damages. Elementary Law, Equity Jurisprudence, Equity Pleading, EA-idence. Executors and Administrators, Federal .Juris- diction and Procedure, Insurance, International Law, Interpreta- tion of Laws. IMining Law, Negligence, Partnership. Persons and Domestic Relations. Public Corporations, Real Property, Sales, Torts (2 vols.) and Wills. Uniform price, 13.75 a volume, delivered. Bound in American Law Buckram. West Publishing Co. St. Paul, Minn. 100 William St. 225 Dearborn St. New York. Chicago. a).>o9a ^arrotps en Hegligencc. 1899. 634 pages. $3.75 delivered. By MORTON BARROWS, A. B., LL. B. TABLE OF CONTENTS. Chap. 1. Definition and Essential Elements. 2. Contributory Negligence. 3. Liability of Master to Servant. 4. Liability of Master to Third Persons. 5. Common Carriers of Passengers. 6. Carriers of Goods. 7. Occupation and Use of Land and Water. 8. Dangerous Instrumentalities. 9. Negligence of Attorneys, Physicians, and Public Officers. 10. Death by Wrongful Act. 11. Negligence of Municipal Corporations. CC559-1 Black on (Eonstruction anb 3nterpretatton of £atP5. 1911. 624 pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary, and Treatises on Constitution- al Law, Judgments, etc. Second Edition. TABLE OF CONTENTS. Chap. 1. Nature and OfBce of Interpretation. 2. Construction of Constitutions. 3. General Principles of Statutory' Construction. 4. Presumptions in Aid of Construction, and Consideration of Ef- fects and Consequences of Act. 5. Literal and Grammatical Construction, Meaning of Language, and Interpretation of Words and Plirases. 6. Intrinsic Aids in Statutory Construction. 7. Extrinsic Aids in Statutory Construction. 8. Construction of Statute as a Whole and with Reference to Ex- isting Laws. 9. Interpretation with Reference to Common Law. 10. Retrospective Interpretation. 11. Construction of Provisos, Exceptions, and Saving Clauses. 12. Strict and Liberal Construction. 13. Mandatory and Directory Statutes and Provisions. 14. Amendatory and Amended Acts. 1.5. Construction of Codes and Revised Statutes. 1(5. Adopted and Re-enacted Statutes. 17. Declaratory Statutes. 15. The Rule of Stare Decisis as Applied to Statutory Construc- tion. With Key-Number Annotations C6559b-2 Slack's Constitutional £air>. 1910. 8GS pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary, Treatises on Judgments, Tax Titles, Bankruptcy, etc. Third Edition. TABLE OF CONTENTS. Chap. 1. Definitions and General Principles. 2. The United States and the States. 3. Establishment and Amendment of Constitutions. 4. Construction and Interpretation of Constitutions. 5. The Three Departments of Government. 6. The Federal Executive. 7. Federal Jurisdiction. S. The Powers of Congress. 9. Interstate Law as Determined by the Constitution. 10. The Establishment of Republican Government. 11. Executive Power in the States. 12. Judicial Powers in the States. 13. Legislative Power in the States. 14. The Police Power. 15. The Power of Taxation. IG. The Right of Eminent Domain. 17. Municipal Corporations. 18. Civil Rights, and Their Protection by the Constitution. 19. Political and Public Rights. 20. Constitutional Guaranties in Criminal Cases. 21. Laws Impairing the Obligation of Contracts. 22. Retroactive Laws, With Key-Number Annotations C6559b -3 Black on d?e £atr» of 3ubidal Preccbents ottie Science of Case taw 1912. 766 pages. $3.75 delivered By H. CAMPBELL BLACK TABLE OF CONTENTS Chap. 1. Nature and Authority of Judicial Precedents. 2. Dicta. 3. Doctrine of Stare Decisis. 4. Constitutional and Statutory Construction. 5. Rules of Property. 6. The Law of the Case. 7. Authority of Precedents as Between Various Courts of the Same State. 8. Authority of Precedents as Between the Various Courts of the United States. 9. Decisions of Federal Courts as Authorities in State Courts. 10. Decisions of Courts of Other States. 11. Decisions of Courts of Foreign Countries. 12. Federal Courts Following Decisions of State Courts ; in General. 13. Same ; Matters of Local Law and Rules of Property. 14. Same : Validity and Construction of State Constitutions and Statutes. 15. Same ; Federal Questions. 16. Same; Commercial Law and General Jurisprudence. 17. Same; Equity and Admiralty. 18. Same; Procedure and Evidence. 19. Effect of Reversal or Overruling of Previous Decision. C6559-31A Burbick on Heal Property. 1914. About 625 pages. ?3.75 delivered. By WM. L. BURDICK, Professor of Law University of Kansas. TABLE OF CONTENTS. Part 1.— THE NATURE OF REAL PROPERTY AND TENURE THEREOF. Chap. 1. Introduction. 2. What is Real Property. 3. Fixtures. 4. Anglo-Saxon and Feudal Laud Law. Part 2.— RIGHTS IN REAL PROPERTY. 5. Estates in Fee Simple, 6. Estates in Fee Tail. 7. Estates for Life. 8. Life Estates Arising from Marriage. 9. Homesteads. 10. Estates Less Than Freehold — Estates for Years. 11. Estates Less Than Freehold (Continued) — Tenancies at Will, from Year to Year, and at Sufferance. 12. Joint Ownership of Estates. 13. Conditional or Qualified Estates. 14. Equitable Estates — Uses and Trusts. 15. Estates in Expectancy. 16. The Rule against Perpetuities. 17. Easements, Profits a Prendre, Rents, and Franchises. Part 3.— MORTGAGES AND OTHER LIENS UPON REAL PROPERTY. 18. Mortgages. 19. Mortgages (Continued.) 20. Mortgages (Continued.) 21. Liens Other Than Mortgages. Part 4.— THE ACQUISITION AND TRANSFER OF REAL PROPERTY. 22. Title in General. 23. Title by Devise and Descent. 24. Title by Official Grant. 25. Restraints and Disabilities of Transfers. 26. The Creation of Interests in Land by Powers of Appointment. 27. Deeds and Their Requisites. 28. Conditions, Covenants, and Warranties in Deeds. 29. Abstracts of Title. C6559-3% Ct^ilbs on 5uretij5l?ip anb (Suaranty. 1907. 572 pages. $3.75 delivered. By FRANK HALL CHILDS, of the Chicago Bar. TABLE OF CONTENTS. Chap. 1. Definitions, Parties, Distinctions, and Classifications. 2. Formation of the Contract. 3. The Statute of Frauds. 4. Construction of the Contract. 5. Rights and Liabilities as Between the Creditor and the Sure- ty. 6. Rights and Liabilities of the Surety and of the Principal as to each other. 7. Rights and Liabilities of Co-Sureties as to each other. 8. Parties to Negotiable Instruments Occupying the Relation of Sureties. 9. Official Bonds. 10. Judicial Bonds. 11. Bail Bonds and Recognizances. CG550-4 Clark on Contracts. 1914. 651 pages. $3.75 delivered. By WM. L. CLARK, Jr. Third Edition: By A. H. THROCKMORTON, Professor of Law University of Indiana. TABLE OF CONTENTS. Chap. 1. Definition, Nature, and Requisites of Contract in General. 2. Offer and Acceptance. 3. Classification of Contracts — Contracts under Seal and Con- tracts of Record. 4. Contracts Required to be in Writing — Statute of Frauds. 5. Consideration. 6. Capacity of Parties. 7. Reality of Consent. 8. Legality of Object. 9. Operation of Contract. 10. Interpretation of Contract. 11. Discharge of Contract. 12. Quasi Contract. With Key-Number Annotations. C6559a-5 Clark on Corpomttons. 1907. 721 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Of the Nature of a Corporation. 2. Creation and Citizenship of Corporations. 3. Effect of Irregular Incorporation. 4. Relation between Corporation and its Promoters. 5. Powers and Liabilities of Corporations. G. Powers and Liabilities of Corporations. 7. Powers and Liabilities of Corporations. 8. The Corporation and the State, 9. Dissolution of Corporations. 10. Membership in Corporations. 11. Membership in Corporations. 12. Membership in Corporations. 13. Management of Corporations — Officers and Agents. 14. Rights and Remedies of Creditors. 15. Foreign Corporations. Appendix. C6559-6 Clark's Criminal £atp. 1902. 517 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of the Law of Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Definition of Crime. 2. Criminal Law. 3. Classification of Crimes. 4. The Mental Element in Crime. 5. Persons Capable of Committing Crime. 6. Parties Concerned. 7. The Overt Act. 8. Offenses against the Person. 9. Offenses against the Person. 10. Offenses against the Habitation. 11. Offenses against Property. 12. Offenses against the Public Health, Morals, etc. 13. Offenses against Public Justice and Authority. 14. Offenses against the Public Peace. 15. Offenses against the Government. 16. Offenses against the Law of Nations. 17. Jurisdiction. 18. Former Jeopardy. C6559-7 Clark's Criminal Procebure. 1895. 665 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of Criminal Law," and a "Handbook of Contracts." TABLE OF CONTENTS. Chap. 1. Jurisdiction. 2. Apprehension of Persons and Property. 3. Preliminary Examination, Bail, and Commitment. 4. Mode of Accusation. 5. Pleading — The Accusation. 6. Pleading — The Accusation. 7. Pleading — The Accusation. 8. Pleading — The Accusation. 9. Pleading — The Accusation. 10. Pleading and Proof. 11. Motion to Quash. 12. Trial and Verdict. 13. Proceedings after Verdict. 14. Evidenca 15. Habeas Corpus. C6559-8 (Eoolcy's Ittuntctpal Corporations. 1914. 709 pages. $3.75 delivered. By ROGER W. COOLEY, LL. M., Professor of Law, University of North Dakota, Author of "Briefs on the Law of Insurance," etc., etc. TABLE OF CONTENTS. Chap. 1. Corporations — Public and Private. 2. Creation of Municipal Corporations. 3. Legislative Control. 4. Alteration and Dissolution. 5. The Charter. 6. Proceedings and Ordinances. 7. Officers, Agents, and Employes. 8. Contracts. 9. Improvements. 10. Police Powers and Regulations. 11. Streets, Sewers, Parks, and Public Buildings. 12. Torts. 13. Debts, Funds, Expenses, and Administration. 14. Taxation. 15. Actions. IG. Quasi Corporations — Counties. 17. Same — Same. 18. Quasi Corporations Other Than Counties. C6559-8y2 Costtgan on VTiininq, taw. 1908. 7G5 pages. $3.75 delivered. By GEORGE P. COSTIGAN, Jr. Dean of the College of Law of the University of Nebraska. TABLE OF CONTENTS. Chap. 1. The Origin and History of American Mining Law. 2. The Mining Law Status of the States, Territories, and Posses- sions of the United States. 3. The Land Department and the Public Surveys. 4. The Relation Between Mineral Lands and the Public Land Grants. 5. The Relation Between Mineral Lands and Homestead, Timber and Desert Entries. 6. The Relation Between Mineral Lands and the Various Public Land Reservations. 7. The Relation Between Mineral Lands and Townsites. 8. Definitions of Practical Mining Terms. 9. Definitions of Mining Law Terms. The Discovery of Lode and Placer Claims. Who May and Who May not Locate Mining Claims. The Location of Lode Claims. The Location of Mill Sites. Tlie Location of Tunnel Sites and of Blind Lodes Cut by Tun- nels. 15. The Location of Placers and of Lodes within Placers. 16. The Annual Labor or Improvements Requirements. The Abandonment, Forfeiture, and Relocation of Lode and Placer Mining Claims. Uncontested Application to Patent Mining Claims. Adverse Proceedings and Protests Against Patent Applications. Patents. 21. Subsurface Rights. 22. Coal Land and Timber and Stone Land Entries and Patents. 2.3. Oil and Gas Leases. 24. Other Mining Contracts and Leases. 25. Mining Partnerships and Tenancies in Common. 2G. Conveyances and Liens. 27. Mining Remedies. 28. Water Rights and Drainage. Appendices. 10. 11. 12. 13. 14. 17 18, 19. 20. C6559-9yo Crostpell on (Sxccutors anb Clbministrators. 1897. G96 pages. $3.7o delivered. By SIMON GREENLEAF CROSWELL, Author of "Electricity," "Patent Cases," etc. TABLE OF CONTENTS. Chap. Part 1.— DEFINITIONS AND DIVISION OF SUBJECT. 1. Definitions and Division of subject. Part 2.— APPOINTMENT AND QUALIFICATIONS. 2. Appointment in Court. 3. Place and Time of Appointment and Requisites Therefor. 4. Wlio may Claim Appointment as Executor. 5. Who may Claim the Right to Administer. 6. Disqualifications for the Office of Executor or Administrator. 7. Acceptance or Renunciation. 8. Proceedings for Appointment of Executors and Administra- tors. 9. Special Kinds of Administrations. 10. Foreign and Intel-state Administration. 11. Joint Executors and Administrators. 12. Administration Bonds. Part 3.— POWERS AND DUTIES. 13. Inventory — Appraisement — Notice of Appointment. 14. Assets of the Estate. 15. Management of the Estate. 16. Sales and Conveyances of Personal or Real Assets. 17. Payment of Debts and Allowances — Insolvent Estates. 18. Payment of Legacies. 19. Distribution of Intestate Estates. 20. Administration Accounts. Part 4.— TERMINATION OF OFFICE. 21. Revocation of Letters — Removal — Resignation. Part 5.— REMEDIES. 22. Actions by Executors and Administrators. 23. Actions against Executors and Administrators. 24. Statute of Limitations— Set-off. 2.J. Evidence and Costs. C6559-9 X)obte on Bailments anb (£avvkvs. 1914. About 625 pages. $3.75 delivered. By A. M DOBIE, Professor of Law University of Virginia. TABLE OF CONTENTS. Chap. 1. Definition and Classification of Bailments. 2. General Principles Common to All Bailments. 3. Bailments for the Bailor's Sole Benefit. 4. Bailments for the Bailee's Sole Benefit. 5. Bailments for Mutual Benefit — Hired Use of Things. 6. Bailments for Mutual Benefit — Hired Services about Things. 7. Bailments for Mutual Benefit — Pledges. 8. Innkeepers. 9. Private and Common Carriers of Goods. 10. Liabilities of the Common Carrier of Goods. 11. Liability under Special Contract. 12. Commencement and Termination of the Liability of the Com- mon Carrier of Goods. 13. The Plights of the Common Carrier of Goods. 14. Quasi Carriers of Goods — Post-Offlce Department. 15. Actions against Carriers of Goods. 16. The Nature of the Relation. 17. Commencement and Termination of the Relation. 18. Liabilities of the Common Carrier of Passengers. 19. The Rights of the Common Carrier of Passengers. 20. The Baggage of the Passenger. 21. Actions against Carriers of Passengers. Supplement — The Federal Interstate Commerce Acts. C6559-9% €aton on €quitij. 1901. 734 pages. $3.75 delivered. By JAMES W. EATON, Editor 3d Edition Collier on Bankruptcy, Co-Editor American Bankruptcy Reports, Eaton and Greene's Negotiable Instruments Law, etc. TABLE OF CONTENTS. Origin and History. General Principles Governing the Exercise of Equity Jurisdiction. Maxims. Penalties and Forfeitures. Priorities and Notice. Bona Fide Purchasers Without Notice. Equitable Estoppel. Election. Satisfaction and Performance. Conversion and Reconversion. Accident. Mistake. Fraud. Equitable Property. Implied Trusts. Powers, Duties, and Liabilities of Trustees. Mortgages. Equitable Liens. Assignments. Remedies Seeking Pecuniary Relief. Specific Performance. Injunction. Partition, Dower, aiid Establishment of Boundaries. Reformation, Cancellation, and Cloud on Title. Ancillary Remedies. 06559-10 ©arbiter on VOilh. 1903. 72G pages. $.3.75 delivered. By GEORGE E. GARDNER, Professor in the Boston University Law School. TABLE OF CONTENTS. Chap. 1. History of Wills — Introduction. 2. Form of Wills. 3. Nuncupative, Holographic, Conditional Wills. 4. Agreements to Make Wills, and Wills Resulting from Agree- ment. 5. Who may be a Testator. 6. Restraint upon Povv'er of Testamentary Disposition — Who may be Beneficiaries — What may be Disposed of by Will. 7. Mistake, Fraud, and Undue Influence. 8. Execution of Wills. 9. Revocation and Republication of Wills. 10. Conflict of Laws. 11. Probate of Wills. 12. Actions for the Construction of Wills. 13. Construction of Wills — Controlling Principles. 14. Construction — Description of Subject-Matter. 15. Construction — Description of Beneficiary. 1(5. Construction — Nature and Duration of Interests. 17. Construction — Vested and Contingent Interests — Remainders — Executory Devises. 18. Construction — Conditions. 19. Construction — Testamentary Trusts and Powers. 20. Legacies — General — • Specific — Demonstrative — Cumulative — Lapsed and Void — Abatement — Ademption — Advance- ments. 21. Legacies Charged upon Land or Other Property. 22. Payment of the Testator's Debts. 23. Election. 24. Rights of Beneficiaries Not Previously Discussed. C6559-12 (Bilmore on Partners t?tp. 1911. About 775 pages. $3.75 delivered. By EUGENE A. GILMORE. Author of Gilinore's Cases on Partnership (American Casebook Series). TABLE OF CONTENTS, Chap, 1. What Constitutes a Partnership, 2. Formation and Classification of Partnerships. 3. The Nature and Characteristics of a Partnership, 4. Nature, Extent, and Duration of Partnership Liability. 5. Powers of Partners, 6. Rights and Duties of Partners Inter se. 7. Remedies of Creditors, 8. Actions Between Partners, 9. Actions Between Partners and Third Persons. 10. Termination of the Partnership, 11, Limited Partnerships. With Key-Number Annotations 06559b -13 ^ale on X)amage5 1912. $3.75 delivered By WM. B. HALE Author of "Bailments and Carriers " Second Edition: By ROGER W. COOLEY TABLE OF CONTENTS Chap. 1. Definitions and General Principles. 2. Nominal Damages. 3. Compensatory Damages. 4. Bonds, Liquidated Damages and Alternative Contracts. 5. Interest. 6. Value. 7. Exemplary Damages. 8. Pleading and Practice. 9. Breach of Contracts for Sale of Goods. 10. Damages in Actions against Carrier. 11. Damages in Actions against Telegraph Companies. 12. Damages for Death by Wrongful Act. 13. Wrongs Affecting Real Property. 14. Breach of Marriage Promise. With Key-Number Annotations C6559b-iti ^alc on Corts. 189G. 636 pages. $3.75 delivered. By WM. B. HALE. Author of "Bailments and Carriers," etc. TABLE OF- CONTENTS. Chap. 1. General Nature of Torts. 2. Variations in Normal Right to Sue. 3. Liability for Torts Committed by or \^'ith Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies for Torts — Damages. 6. Wrongs Affecting Freedom and Safety of Person. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. C6559-17 ^opkins on Heal Property. 1896. 589 pages. ?3.75 delivered. By EARL P. HOPKINS, A. B. LL. M. TABLE OF CONTENTS. Chap. 1. What is Real Property. 2. Tenure aud Seisin. 3. Estates as to Quantity— Fee Simple 4. Estates as to Quautitj- — Estates Tail. 5. Estates as to Quantity — Conventional Life Estates. C. Estates as to Quantity— Legal Life Estates. 7. Estates as to Quantity — Less than Freehold. 8. Estates as to Quality on Condition — on Limitation. 9. Estates as to Quality — Mortgages. 10. Equitable Estates. n. Estates as to Time of Enjoyment — Future Estates. 12. Estates as to Number of Owners — Joint Estates. 13. Incorporeal Hereditaments. 14. Legal Capacity to Hold and Convey Realty. 15. Restraints on Alienation. IG. Title. CG559-18 Qugl^es on Ctbmtralty. 1901. 504 pages. $3.75 delivered. By ROBERT M. HUGHES, M. A. TABLE OF CONTENTS. The Origin and History of the Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Subject-Matter. General Average and Marine Insurance. Bottomry and Respondentia ; and Liens for Supplies, Repairs, and Other Necessaries. Stevedores' Contracts, Canal Tolls, and Towage Contracts. Salvage. Contracts of Affreightment and Charter Parties. Water Carriage as Affected by the Harter Act of February 13, 1893. Admiralty Jurisdiction in Matters of Tort. The Right of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Herein of Collision. The Steering and Sailing Rules. Rules as to Narrow Channels, Special Circumstances, and General Precautions. Damages in Collision Cases. Vessel Ownership Independent of the Limited Liability Act. Rights and Liabilities of Owners as Affected by the Limited Lia- bility Act. The Relative Priorities of Maritime Claims. A Summary of Pleading and Practice. APPENDIX. 1. The Mariner's Compass. 2. Statutes Regulating Navigation, Including: (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (3) The Dividing Lines between the High Seas and Coast Wa- ters. (4) The Lake Rules. (5) The Mississippi Valley Rules. (G) The Act of March 3, 1899, as to Obstructing Channels. 3. The Limited Liability Acts. Including: (1) The Act of March 3, 1851, as Amended. (2) The Act of June 2G, 1884. 4. Section 941, Rev. St., as Amended, Regulating Bonding of Ves- sels. 5. Statutes Regulating Evidence in the Federal Courts. 6. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. €6559-19 ^ugl?e5 on ^i^^^^al 3urtsbtctton anb Proccburc. 1913. 766 pages. $3.75 delivered. Second Eidition. By ROBERT M. HUGHES, of the Norfolk Bar, Author of "Hughes on Admiralty," and Lecturer at the George Washington University Law School. TABLE OF CONTENTS. Chap. 1. Of the Source of Federal Jurisdiction and the Law Adminis- tered by Federal Courts. 2. The District Court — Its Criminal Jurisdiction and Practice. 3. Same — Continued. 4. Same — Miscellaneous Jurisdiction. 5. Same — Bankruptcy. 6. Same — Continued. 7. Same — Continued. 8. Same — Continued. 9. Same — Particular Classes of Jurisdiction. 10. Same — Jurisdiction to Issue Certain Extraordinary Writs. 11. Same — Original Jurisdiction Over Ordinary Controversies. 12. Same — Continued. 13. Same — Continued. 14. Same — Jurisdiction by Removal. 15. Same — Continued. 16. Same — Continued. 17. Other Courts Vested with Original Jurisdiction. IS. Procedure in the Ordinary Federal Courts of Original Juris- diction — Courts of Law. 19. Same — Courts of Equity. 20. Same — Continued. 21. Appellate Jurisdiction— The Circuit Court of Appeals. 22. Same — The Supreme Court. 23. Procedure on Error and Appeal. The United States Supreme Court Rules, the Rules for Practice for the Courts of Equity of the United States promulgated Nov. 4, 1912, the Judicial Code, and the portion of the Deficiency Ap- propriation Bill of October 22, 1913, abolishing the Commerce Court, are given in an Appendix. With Key-Number Annotations C6559a-20 3aggarb on Corts. 1895. 2 vols. 1307 pages. $7.50 delivered. By EDWIN A. JAGGARD, A. M., LL. B., Professor of the Law of Torts in Minnesota University Law School. TABLE OF CONTENTS. Part 1.— IN GENERAL. Chap. 1. General Nature of Torts. 2. Variations in the Normal Right to Sue. 3. Liability for Torts (Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies. Part 2.— SPECIFIC WRONGS. 6. Wrongs Affecting Safety and Freedom of Persons. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. 14. Common Carriers. CG559-22 ZTTcKebcy on (^mb^incc. 1907. 540 pages. $3.75 delivered. By JOHN JAY McKELVEY, A. M., LL. B., Author of "Common-Law Pleading," etc. Second Edition. TABLE OF CONTENTS. Chap. 1. Introductory. 2. Judicial Notice. 3. Questions of Law and Questions of Fact. 4. Burden of Proof. 5. Presumptions. 6. Admissions. 7. Confessions. 8. Matters Excluded as Unimportant, or as Misleading, though Logically Relevant. 9. Character. 10. Opinion Evidence. 11. Hearsay. 12. Witnesses. 13. Examination of Witnesses. 14. Writings. 15. Demurrers to Evidence. C6559-23 Horton on Bills ant> Hotes. 1914. About 625 pages. $3.75 delivered. By PROF. CHARLES P. NORTON, Fourth Edition; By WM. UNDERHILL MOORE, Professor of Law University of Wisconsin. TABLE OF CONTENTS. Chap. 1. Introduction. 2. Of Negotiable Bills and Notes, and Their Formal and Essen- tial Requisites. 3. Acceptance of Bills of Exchange. 4. Indorsement. 0. Of the Nature of the Liabilities of the Parties. 6. Transfer. 7. Defenses Commonly Interposed against a Purchaser for Value without Noticf. 8. Purchaser for Value without Notice. 9. Presentment, Dishonor, Protest, and Notice of Dishonor, 10. Checks. Appendix — The Negotiable Instruments Law. C6559a-24 Sl^ijpman on CommonCatP Plcabtng. 1S95. 615 pages. $3.75 delivered. By BENJAMIN J. SHIPMAN, LL. B. Second Edition. TABLE OF CONTENTS. Chap. 1. Forms of Action. 2. Forms of Action. 3. The Parties to Actions. 4. The Proceedings in an Action. 5. The Declaration. G. The Production of the Issue. 7. Materialty in Pleading. 8. Singleness or Unity in Pleading. 9. Certainty in Pleading. 10. Consistency and Simplicity in Pleading. 11. Directness and Brevity in Pleading. 12. Miscellaneous Rules. Appendix. 06559-25 5f?tpman on (Squity Pleabtng. 1897. 644 pages. $3.75 delivered. By BENJ. J. SHIPMAN, LL. B., Author of ' 'Shipman's Commou-Law Pleading." TABLE OF CONTENTS. Cliap 1. Equity Pleading ' in General. 2_ Parties. 3. Proceedings in . m Equitable suit. 4. Bills in Equity. 5. The Disclaimer. 6. Demurrer. 7. The Plea. 8. The Answer. 9. i 1 The Replication CC559-2G SmitI? 5 (Slemcntary £atp. 189G. 367 pages. $3.75 delivered. BY WALTER DENTON SMITH, Instructor in the Law Department of tlie University of Michigan. TABLE OF CONTENTS. Chap. Part 1.— ELEMENTARY JURISPRUDENCE. 1. Nature of Law and the Various Systems. 2. Government and its Functions. 3. Government in the United States. 4. The Unwritten Law. o. Equity. 6. The Written Law. 7. The Authorities and their Interpretation. 8. Persons and Personal Rights. 9. Property. 10. Classification of the Law. Part 2.— THE SUBSTANTIVE LAW. 11. Constitutional and Administrative Law. 12. Criminal Law. 13. The Law of Domestic Relations. 14. Corporeal and Incorporeal Hereditaments. 15. Estates in Real Property. 10. Title to Real Property. 17. Personal Property. 18. Succession After Death. 19. Contracts. 20. Special Contracts. 21. Agency. 22. Commercial Associations. 23. Torts. Part 3.— THE ADJECTIVE LAW. 24i Remedies. 25. Courts and their Jurisdiction. 20. Procedure. 27. Trials. CG559-27 Ciffany on cTgency. 1903. 609 pages. $3.75 delivered. By FRANCIS B. TIFFANY, Author of "Death by Wrongful Act," "Law of Sales," etc. TABLE OF CONTENTS. Chap. Part 1.— IN GENERAL. 1. Introductory — Definitions. 2. Creation of the Relation of Principal and Agent — Appointment. 3. Same (continueil) — Ratification. 4. What Acts Can be Done by Agent — Illegality — Capacity of Parties — Joint Principals and Agents. 5. Delegation by Agent — Subagents. 6. Termination of the Relation. 7. Construction of Authority. Part 2.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND THIRD PERSON. 8. Liability of Principal to Third Person — Contract 9. Same (continued). 10. Admissions by Agent — Notice to Agent. 11. Liability of Principal to Third Person— Torts and Crimes. 12. Liability of Third Pereon to Principal. Part 3.— RIGHTS AND LIABILITIES BETWEEN AGENT AND THIRD PERSON. 13. Liability of Agent to Third Person (including parties to con- tracts). 14. Liability of Third Person to Agent. Part 4.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND AGENT. 15. Duties of Agent to Principal. 16. Duties of Principal to Agent. Appendix. I C6559^28 (Tiffany on Banks anb IS^anking, 1912. 610 pages. $3.75 delivered. By FRANCIS B. TIFFANY, .\uthor of "Tiffany on Sales," "Tiffany on Agency," etc. * TABLE OF CONTENTS. Chap. 1. Introductory. 2. Deposits. 3. Checks. 4. Payment of Checlis. 5. Clearing House. 6. Collections. 7. Loans and Discounts. 8. Bank Notes. 9. Banking Corporations. 10. Representation of Bank by Officers. 11. Insolvency. 12. National Banks. 13. Savings Banks. Appendix. With Key-Number Annotations C6559-283^ (Tiffany on Persons anb Domestic delations. 1909. 656 pages. $3.75 delivered. By WALTER C. TIFFANY. Second Edition : Edited by Roger W. Cooley. TABLE OF CONTENTS. ChaD. Part 1.— HUSBAND AND WIFE. 1. Marriage. 2. Persons of the Spouses as Affected by Coverture. 3. Rights in Property as affected by Coverture. 4. Contracts, Conveyances, etc., and Quasi-Contractual Obliga- tions. 5. AYife's Equitable and Statutory Separate Estate. 6. Antenuptial and Postnuptial Settlements. 7. Separation and Divorce. Part 2.— PARENT AND CHILD. 8. Legitimacy, Illegitimacy, and Adoption. 9. Duties and Liabilities of Parents. 10. Rights of Parents and of Children. Part 3.— GUARDIAN AND WARD. 11. Guardians Defined — Selection and Appointment. 12. Rights, Duties, and Liabilities of Guardians. 13. Termination of Guardianship — Enforcing Guardian's Liability. Part 4.— INFANTS, PERSONS NON COMPOTES MENTIS, AND ALIENS. 14. Infants. 15. Persons Non Compotes Mentis and Aliens. Part 5.— MASTER AJS'D SERVANT. IG. Creation and Termination of Rekition. CW559B-29 Ctffany on Sales. 1908. 534 pages. $3.75 delivered. By FRANCIS B. TIFFANY, A. B., LL. B. Author of "Tiffany on Death by Wrongful Act." Second Edition. TABLE OF CONTENTS. Chap. 1. Formation of the Contract. 2. Formation of the Contract — Under the Statute of Frauds. 3. Effect of the Contract in Passing the Property — Sale of Spe- cific Goods. 4. Effect of the Contract in Passing the Property — Sale of Goods not Specific. 5. Fraud, and Retention of Possession, 6 Illegality. 7. Conditions and Warranties. 8. Performance. 9. Rights of Unpaid Seller against the Goods. 10. Action for Breach of the Contract. Appendix: Sales Act — English Sale of Goods Act. C6559a— 30 Vance on 3n5urance. 1896. GS3 pages. $3.75 delivered. By WILLIAM REYNOLDS VANCE, Professor of Law iu the George Washington University, The principal object of this treatise is to give a consistent state- ment of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the niles peculiar to the several different kinds of insurance. Special attention has been given to the construction of the standard fire poliC3\ This treatment will help to bring about, we believe, the muclJ desired clarification of this branch of the law. The chapters cover, — Historical and Introductory. Nature and Requisites of Contract. Parties. Insurable Interest. Making the Contract. The Consideration. Consent of the Parties — Concealment. Consent of the Parties — Warranties. Agents and their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit, and Liability Insurance. Appendix. C6559-31 IDilson on 3nternattonaI £aw. 1910. 623 pages. $3.75 delivered. By GEORGE GRAFTON WILSON. TABLE OF CONTENTS. Chap. 1. Persons in International Law. 2. Existence, Independence and Equality. 3. Property and Domain. 4. Juris'dictiou. 5. Diplomatic Relations. G. Consular and Other Relations. 7. Treaties and Other International Agreements. 8. Amicable Means of Settlement of International Differences. 9. Non-Amicable Measures of Redress Short of War. 10. Nature and Commencement. 11. Area and General Effect of Belligerent Operations. 12. Rights and Obligations During War. 13. Persons During War. 14. Property on Land. 15. Property on Water. 10. ^laritime Capture. 17. Rules of War. 18. Military Occupation and Government. 19. Prisoners, Disabled and Shipwrecked. 20. Non-Hostile Relations between Belligerents. 21. Termination of War. 22. Nature of Neutrality. 23. Visit and Search. 24. Contraband. 25. Blockade. 2G. Continuous Voyage. 27. Unneutral Service. 28. Prize. CG55»-82 University of California Library Los Angeles This book is DUE on the last date stamped below. JUL0 9 20Q1 ^><^<^<^^r'^~^^,^ LAW LIBRARY UNIVERSITY OF CALIFORNU .*-v« k ■vT/^rr'T CCS "7 AA 000 824 515 1 "^