;i i wmm UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY SELECTION OF CASES ON MUNICIPAL CORPORATIONS BY JOSEPH HENRY BEALE CAKTEK PROFESSOR OF GENERAL JURISPRCDENCE IN HARVARD UNIVERSITY CAMBRIDGE THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION 1911 Copyright, 1911, Bt Joseph H. Beale \ THE UNIVERSITY PRESS, CAMBRIDGE, U. S. A. PREFACE In 1898 Professor Jeremiah Smith published a short collection of "Cases on Selected Topics in the Law of Municipal Corporations," with special reference to the wants of his classes, where the time allotted for the subject did not exceed ten lectures. The growing im- portance of the subject has made it wise to increase the time devoted to study of the subject in many schools, and the time now commonly allotted to it is from thirty to forty lectures. This has made it desira- ble to prepare a case-book to cover the subject more fully than was possible in Professor Smith's book, and the task of preparation has fallen on the present editor. The cases in the earlier book were so admirably selected that it would have been folly to make a new selection. Professor Smith placed them all at the service of the present editor, but preferred that his own name should not appear on the title-page. This collection, therefore, which ought to appear as a second edition of his book, or at least as a joint production, must purport to be the work of the undersigned ; who takes occasion here to say, that of the 678 pages of cases here collected, 260 are taken without change, or with unim- portant changes of arrangement, from the earlier collection, and to express his indebtedness for that fact, and for the even greater assist- ance he has derived from Professor Smith's learning and interest in the subject. JOSEPH H. BEALE. Cambridge, December 1, 1911. G673G0 TABLE OF CONTENTS Page Table of Cases vii Chapter I. The Nature of Municipal Corporations: Section 1. Distinction between Municipal Corporations and other Corporations 1 Section 2. Functions of Municipal Corporations .... 13 Chapter II. External Constitution : Section 1. Creation, Alteration, and Dissolution .... 18 Section 2. Legislative Control 82 Chapter III. Internal Constitution : Section 1. Organization 148 Section 2. Departments, (a) Legislative 175 (b) Administrative 203 Sections. Officers 211 Chapter IV. Powers of a INIunicipal Corporation : Section 1. General Principles 240 Section 2. Legislative Power 252 Section 3. Police Power 277 Section 4. Power to Tax 298 Sections. Power to P^xpend Money 317 Section 6. Power to Contract 356 Section 7. Power to Acquire, Manage, and Dispose of Property 408 Chapter V. Liability: Section 1. Liability on Contracts 474 Section 2. Liability for Torts, (a) General Principles of Liability 530 (6) Negligence in Executing Governmental Functions 569 (c) Negligence in the Performance of a Municipal Function 601 (d) Negligence in the Performance of a Commercial Function 632 Chapter VI. Remedies 653 Index 679 TABLE OF CASES REPRINTED OR CITED. Cases printed in small capitals are printed at large in the text; other cases are cited in the text or notes. "Where a case printed at large is also cited elsewhere, the page first given refers to the place where it is printed at large. Adams v. Robinson, 1 Pick. 461 172 V. Wiscasset Bank, 1 Greenl. 361 536, 577 Addyston Pipe & Steel Company V. Corey, 194 Pa. 41 406 Agawam v. Hampden, 130 Mass. 528 117 Agawam National Bank v. In- H.ABITANTS OF SoUTH HaDLEY, 128 Mass. 503 515, 516 Ah Lee, In re, 6 Saw^- 410 230 Akron v. McComb, 18 Ohio, 229 576 Alamango v. Board of Supervisors of Albany County, 25 Hun, 551 Allegheny, City of, v. Milkoh, 159 Pa. St. 411 Allen V. Drew, 44 Vt. 174 V. Jay, 60 Me. 124 V. Taunton, 19 Pick. 485 594, 595 302 266 420 246 7 Allor V. Auditors, 43 Mich. 76 Alton, City of, v. MuUedy, 21 Ih. 76 471 Amy V. Sehna, 77 Ala. 103 67 V. Watertown, 130 U. S. 301 75 Andover v. Grafton, 7 N. H. 298 369 Andrews v. Portland, 79 Me. 484 237 Anon., 1 Pick. 196 172 Anthony v. Adams, 1 Met. (Mass.) 284 532, 246, 576, 652 V. Jasper County, 101 U. S. 693 494, 511 Application of Mayor, etc., 99 N. Y. 569 415 Argenti v. San Francisco, 16 Cal. 255 515, 518, 645 Ariniond v. Green Bay, etc. Co., 31 Wis. 316 550 Arnett v. State, 168 Ind. 180 100 Arnold v. Hawkins, 95 Mo. 569 400 Ash V. People, 11 Mich. 347 315 Ashby V. Wellington, 8 Pick. 524 24 Ashley v. City op Port Huron, 35 Mich. 296 648, 7, 637 Askew V. Hale, 54 Ala. 639 11 Askins v. Com., 1 Duv. 275 60 Atkin v. Kansas, 191 U. S. 207 130, 137 Atkms V. Phillips, 26 Fla. 281 188 V. Randolph, 31 Vt. 226 114, 122 V. Sawyer, 1 Pick. 354 172 Atlantic Bank v. Merchants' Bank, 10 Gray, 532 514 Attorney-General v. Campbell, 191 Mass. 497 203 V. Councilmen, 58 Mich. 213 7 V. Detroit, 29 Mich. 108 7, 353 V. Drohan, 169 Mass. 534 213 V. Eau Clake, 37 Wis. 490 420 V. Guardians of the Poor of Southampton, 17 Sim. 6 321 V. Johnson, 63 N. H. 622 224 V. Life & Fire Ins. Co., 9 Paige, 470 356 V. Locke, 3 AtkjTis, 164 658 V. Mayor of Norwich, 2 Myl. & Cr. 406 324 V. Norwich, 16 Sim. 225 321 V. Remick, 73 N. H. 25 203 V. Williams, 174 Mass. 476 276 Attorney-General ex rel. Ma- GuiRE V. Wayne Circuit Judge, 157 Mich. 615 350 Atwater v. Trustees of Village of Canandaigija, 124 N. Y. 602 614 Aurora Water Co. v. Aurora, 129 Mo. 540 249 Austin V. Murray, 16 Pick. 121 277 V. Tennessee, 179 U. S. 343 274 B. Babbitt v. Savoy, 3 Cush. 530 347 Bachelder v. Epping, 28 N. H. 354 327 Badger v. Inlet Drainage Dist., 141 111. 540 73 V. U. S., 93 U. S. 599 168 BAiLfiY V. Mayor of New York, 3 Hill, 531 13, 114, 122, 124, 459, 673, 576, 624, 626 VIU TABLE OF CASES. Baily v. Philadelphia, 184 Pa. 594 453 Baker v. Cushman, 127 Mass. 105 202 V. Johnson, 21 Mich. 319 303 Baltimore v. Baltimore T. & G. Co., 166 U. S. 673 314 Baltimore, Mayor of, v. State, 15 Md. 376 30, 49, 100, 123, 127 Bancroft v. Lynnfield, 18 Pick. 536 347 Bangs V. Snow, 1 Mass. 181 241 Bank v. Chillicothe, 7 Ohio, part II, 31 366 V. Grace, 102 N. Y. 313 423 V. Kennedy, 167 U. S. 362 525 Bank of Columbia v. Patterson, 7 Cranch, 299 533 Bank of Rome v. Village of Rome, IS N. Y. 38 120 Baptist So. V. Candia, 2 N. H. 20 24 Barbier v. Connolly, 113 U. S. 27 274 Barbour v. Ellsworth, 47 Me. 294 583 Barkley v. Levee Comrs., 93 U. S. 258 78 Barnard v. Knox County, 105 Mo. 382 396 Barnard & Co. v. Knox Co., 37 Fed. Rep. 563 398 Barnes v. District of Columbia, 91 U. S. 540 5, 144, 539 Barnett v. Denison, 145 U. S. 135 132 Barney v. Lowell, 98 Mass. 570 556, 631 Barney D. B. Co. v. Mayor of N. Y., 40 Fed. 50 144 Barrett v. Bodie, 158 111. 479 76 Barron v. Detroit, 94 Mich. 601 635 Bartholomew v. Jackson, 20 Johns. 25 331 Barton v. City of Syracuse, 36 N. Y. .54 611, 549 Bates V. Bassett, 60 Vt. 535 420, 426 V. Gregory, 89 Cal. 387 78 V. Westborough, 151 Mass. 174 550 Baxter v. The Winooski Turnpike, 22 Vt. 123 578 Beach v. Haynes, 12 Vt. 15 444, 445 Beardsley v. Smith, 16 Conn. 368 654, 655 Beaty v. Lessee of Knowler, 4 Peters, 152 242 Becker v. I^a Crosse, 99 Wis. 414 415 V. Water Works, 79 Iowa, 419, 419 Beckwith v. City of Racine, 7 Biss. 142 51 Beers v. Phoenix Glass Co., 14 Barb. 358 362 Beir v. Cooke, 37 Hun, 38 297 Belcher v. Farrar, 8 Allen, 325 276 Bell V. City of Platteville, 71 Wis. 139 465 Belmont v. New England Brick Co., 190 Mass. 442 276 Beloit V. Morgan, 7 Wall. 619 28 Bennett v. New Bedford, 110 Mass. 433 202 Benoit v. Conway, 10 Allen, 528 514 Benson v. Mayor, 10 Barb. 223 114 V. People, 10 Col. App. 175 219 Benton v. Trustees of Boston City Hospital, 140 Mass. 13 589, 594 Berlin v. Gorham, 34 N. H. 266 18 Bessonies v. City of Indianapohs, 71 Ind. 189 272 Beverley v. Lincoln Gas Light and Coke Co., 6 Adolph. & Ellis, 829 533 Biddeford v. Yates, 104 Me. 506 467 Bigelow v. Hillman, 37 Me. 52 177 Bigelow V. Perth Amboy, 1 Dutch. 297 362 V. Randolph, 14 Gray, 541 536, 610, 651 Biggs v. McBride, 17 Or. 640 219 Bill Posting Sign Co. v. Atlantic City, 71 N. J. L. 72 293 Bills V. City of Goshen, 117 Ind. 221 183, 272 BisseU V. Jeffersonville, 24 How. 287 483, 492 Black V. McGonigle, 103 Mo. 192 400 Blackmer v. Hildreth, 181 Mass. 29 203 Blackwell's Case, 1 Vernon, 152 658 Blanchard v. BisseU, 11 Oh. St. 96 50 Bloom V. Xenia, 32 Oh. St. 461 187 Bloomfield v. Glen Ridge, 54 N. J. Eq. 276 31 Bloomington, City of, v. Latham, 142 111. 462 266 Bly V. Edison Elec. 111. Co., 172 N. Y. 1 297 Board v. Auditors, 68 Mich. 576 7 V. Board, 30 W. Va. 424 33 V. Patterson, 56 111. Ill 444 Board of Comrs. v. Lucas, 93 U. S. 108 124 Board of Health v. City of East Saginaw, 45 Mich. 257 33 Board of Park Comrs. v. Common Council, 28 Mich. 228 459, 638 V. Printz, 127 Ky. 470 592 Board of School Comrs. v. Cen- ter Township, 143 Ind. 391 36 Board of Supers., Cayuga Co. v. State, 153 N. Y. 279 345 Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18 297 Bolton V. Crowther, 4 Dowl. & Ryl. 195 14 Book V. Earl, 87 Mo. 246 398 Booth V. Town of Woodbury, 32 Conn. 118 116, 119 Borough of Henderson v. County of Sibley, 28 Minn. 519 426 Borough of Millerstown v. Bell, 123 Pa. 151 288 TABLE OF CASES. IX Boston V. Schaffer, 9 Pick. 415 258 Boughton V. Pensacola, 93 U. S. 266 79 Bowden v. Kansas City, 69 Kan. 587 548 Bowdoinham v. Richmond, 6 Me. 112 28 Bowman v. Walker, 2 M'Lean, 376 370 Brady v. Insurance Co., 11 Mich. 425 281 V. Lowell, 3 Cush. 121 537, 577 V. Mayor, etc. of New York, 20 N. Y. 312 378 Brenham, City of, v. German American Bank, 144 U. S. 173 371 Breninger v. Belvidere, 44 N. J. L. 350 266 Brewer Brick Co. v. Brewer, 62 Me. 62 330 Brewis v. City of Duluth, 3 McCr. 219 52 Brewster v. City of Syracuse, 19 N. Y. 116 344 Bridge Co. v. East Hartford, 16 Conn. 172 23 Brinkmeyer v. Evansville, 29 Ind. 187 619 Bristol V. New Chester, 3 N. H. 521 24 Britton v. Maj^or, 21 How. Pr. 251 114 Broadway Railroad Co. v. Mayor, 49 Hun, 129 ^ 309 Brockman v. Creston, 79 Iowa, 587 419 Brodbine v. Revere, 182 Mass. 598 ■_ _ 276 Bronson ?;. Kinzie, 1 Howard, 319 661 Brooke v. City, 162 Pa. 123 334, 423 Brooklyn v. Nodine, 26 Hun, 512 276 Brooklyn Park Com. v. Armstrong. 45 N. Y. 234 50 Brooks v. Brooklyn, 146 la. 136 417 Broughton v. Pensacola, 93 U. S. 266 47, 59, 66, 68, 71 BrowTi V. Board of Education, 103 Cal. 531 645 V. Mayor, etc. of N. Y., 63 N. Y. 239 344 V. Vinalhaven, 65 Me. 402 583 v. Winnisimmet Co., 11 Allen, 326 465 Browning v. Springfield, 17 111. 143 609 Bryan v. City of Chester, 212 Penn. 259 293 Bryant v. City of St. Paul, 33 Minn. 289 542, 631 V. Westbrook, 86 Me. 450 647 Buch V. Company, 69 N. H. 257 546 Buchanan v. Litchfield, 102 U. S. 278 374, 493, 500, 506, 520, 521 Buck v. Eureka, 109 Cal. 504 228 Bulger V. Eden, 82 Me. 352 546, 650, 651 Burnett v. Markley, 23 Ore. 436 395 Burns v. Clarion County, 62 Penn. St. 425 Burt V. Winona, etc. R. R., 31 Minn. 472 Bush V. Bd. of Supers., Orange Co., 159 N. Y. 212 Butler V. Charlestown, 7 Gray, 12 V. Detroit, 43 Mich. 552 Butman v. Newton, 179 Mass. 1 BuTTRicK V. City of Lowell, 1 Allen, 172 Butz V. City of Muscatine, 8 Wall. 575 Buxton V. Chesterfield, 69 N. H. 24 230 345 331 7 588 580 49 331 617 357 Byrnes v. City of Cohoes, 67 N. Y. 204 C. Cain V. Brown, 111 Mich. 657 73 V. City of Syracuse, 95 N. Y. 161 613, 617 CaUanan v. Gilman, 107 N. Y. 360 429, 431 CalweU V. City of Boone, 51 la. 687 544 Camden v. Camden Village Corp., 77 Me. 530 465, 650 Campbell v. Cincinnati, 49 Oh. St. 463 185 V. Seaman, 63 N. Y. 568 297 Cannon v. New Orleans, 20 Wall. 577 124 Cape May Street Railway Co. v. Cape May, 59 N. J. L. 396 309 Carleton v. People, 10 Mich. 250 231 Carr v. Hilton, 1 Curt. C. C. 390 370 Carroll v. Lessee of Carroll, 16 How. 275 492 Carroll County v. Smith, 111 U. S. 556 504 Carson v. McPhetridge, 15 Ind. 331 159 Cavanaugh v. Boston, 139 Mass. 426 560 Cawley v. People, 95 111. 249 177 Cedar Rapids, In re, 85 la. 39 423 Cedar Rapids Water Co. v. Cedar Rapids, 118 la. 2.34 419 Central Bridge Corp. v. Lowell, 15 Gray, 106 148 Central Land Co. v. Bayonne, 27 Vroom, 297 263 Chaffee County v. Potter, 142 U. S. 355 497," 498, 499, 504, 505, 506, 507, 508 Chalk V. TVTiite, 4 Wash. 156 340 Chal.stran v. Board op Educa- tion, 244 111. 470 74 Chambers v. City of St. Louis, 29 Mo. 543 411 Chandler v. Boston, 112 Mass. 200 19, 50 Chapman v. Douglass Co., 107 U. S. 348 527, 528, 564 TABLE OF CASES. Chapman, Matter of, 57 App. Div. 582 343 Chapman, Matter of, v. New- York, 168 N. Y. 81 342 Charlotte, etc. Raihoad Co. v. Gibbs, 142 U. S. 386 309 Chase V. Merrunack Banli, 19 Pick. 564 535 Chedsey v. Canton, 17 Conn. 475 578 Chelsea Sav. Bank v. Ironwood, 130 Fed. 410 529 Cheney v. Coughlin, 201 Mass. 204 200 Cherokee v. Perkins, 118 la. 405 419 Chicago V. Gage, 95 111. 621 177 V. Seben, 165 111. 371 548 Chicago v. Union Traction Co., 199 111. 259 304 Chicago City v. Robbins, 2 Black, 418 539 Chicago, City of, v. Burtice, 24 III. 489 204 V. Gunning System, 214 111. 628 294 V. O'Brien, 111 111. 532 307 V. Rumpff, 45 111. 90 265 V. Town of Cicero, 210 111. 290 V. Trotter, 136 lU. 430 73, 75 268, 272, 275 Co. V. 300 Chicago General Ry Chicago, 176 111. 2.53 Chicago, M. & St. P. R. Co. v. Mil- waukee, 97 Wis. 418 314 Chidsey v. Canton, 17 Conn. 475 117, 537 Child V. Boston, 4 Allen, 41 Chilvers v. People, 11 Mich. 43 Chipman v. Palmer, 77 N. Y. 51 Chope V. City of Eureka, 78 Cal. 588 Chi-isty V. Pridgeon, 4 Wall. 196 Cicero Lumber Co. v. Town of Cicero, 176 111. 9 272, 275 Cicero, Town of, v. City of Chicago, 182 111. 301 Cincinnati, City of, v. Cameron, 33 Ohio St. 336 City V. Schoenbusch, 95 Mo. 618 City, In re, v. McNab, 67 Ala. 588 420 City, etc. Railroad Co. v. Savan- nah, 77 Ga. 731 City Ry. Co. v. Citizens' St. Ry. Co., 166 U. S. 558 Claflin V. Hopkinton, 4 Gray, 502 Claiborne County v. Brooks, 111 U. S. 400 135, 373 Clair V. Manchester, 72 N. H. 231 545 Claridge v. Evel>Ti, 5 B. & Aid. 81 160 Clark V. City of Rochester, 24 Barb. 446 V. Crane, 5 Mich. 151 V. Des Moines, 19 la. 199 V. Easton, 146 Mass. 43 V. Manchester, 62 N. II. 577 316 612 644 539 75 463 251 309 437 327 383 185 419 213 640 Clark V. Mayor, etc. of Washing- ton, 12 Wheat. 40 533 V. School Dist., 3 R. I. 199 362 V. South Bend, 85 Ind. 276 274 V. Waltham, 128 Mass. 567 631 Clayton v. City of Henderson, 44 S. W. 667 564 Clayton v. Hallett, 30 Colo. 231 408 Cleburne, City of, v. Railroad Company, 66 Tex. 461 372 Clinton v. Railroad, 24 la. 475 25, 132 Coates V. Campbell, 37 Minn. 498 420 Codman v. Evans, 7 Allen, 431 557 Coffin V. City Council, 26 la. 515 385 V. Nantucket, 5 Cush. 269 275 Cogswell V. N. Y., N. H. & Hart- ford R. R. Co., 103 N. Y. 10 297 Cohens v. Virginia, 6 WTieat. 264 492 Colchester v. Scaber, 3 Burr. 1866 47, 67 Coldwater v. Tucker, 36 Mich. 474 34 Coleraine v. Bell, 9 Met. 499 515 Collins V. Greenfield, 172 Mass. 78 589, 643, 651 V. Holyoke, 146 Mass. 298 472 CoLOMA, Town of, v. Eaves, 92 U. S. 484 477, 488, 492, 501, 506 Commissioners v. Detroit, 28 Mich. 228 7 V. Duckett, 20 Md. 468 610 V. Intoxicating Liquors, 115 Mass. 153 281 V. Lucas, 93 U. S. 108 42, 44 V. Wilkins, 121 Mass. 356 282 Commonwealth v. Abrahams, 156 Mass. 57 275 V. Boston Advertising Co., 188 Mass. 348 292 V. City of Philadelphia, 132 Pa. St. 288 463 V. Cluley, 56 Pa. 270 159 V. Cutter, 156 Mass. 52 589 V. Dearborn, 15 Mass. 125 212 V. Elhs, 158 Mass. 555 275 V. Hubley, 172 Mass. 58 274 V. Johnson, 2 Binney, 275 658 V. Kingsbury, 199 Mass. 542 276 Commonwealth v. Leech, 44 Pa. 332 154 Commonwealth v. McCloskey, 2 Rawle, 374 93 V. McComb, 56 Pa. 436 96, 230 Commonw^ealth v. Maletsky, 203 Mass. 241 273 V. MoiR, 199 Pa. 534 92 Commonwealth v. Mulhall, 162 Mass. 496 274, 275 V. Packard, 185 Mass. 64 274 V. Page, 155 ]\Iass. 227 275 V. Parker, 2 Pick. 550 172 V. Parks, 155 Mass. 531 274 f Philadelphia, Harrisburg, TABLE OF CASES. XI & Pittsburg Railroad Co., 23 Pa. Super. Ct. 205 288, 289 Commonwealth v. Plaisted, 148 Mass. 375 100, 101, 116, 127, 274 V. Rawson, 183 Mass. 491 276 V. Read, 2 Ashm. 261 159, 176 V. Roswell, 173 Mass. 119 275 V. Roxbury, 9 Gray, 451 535 V. Sisson, 189 Mass. 247 274 V. Smith, 132 Mass. 289 203 V. Smith, 10 All. 448 129 V. Staples, 19 Mass. 384 275 Commonwealth v. Stodder, 2 Cash. 562 270 Commonwealth v. Swasey, 133 Mass. 538 213 V. Tuckerman, 10 Gray, 173 514 V. Turner, 1 Gush. 493 275 V. Walton, 182 Pa. 373 454 V. Weil, 165 Pa. 284 96 V. Wilder, 127 Mass. 1 649 Commonwealth, ex rel. City of Philadelphia Police Pension Fund Association v. Walton, 182 Pa. 373 333 Commonwealth, ex rel. Kelly v. Pittsburg, 183 Pa. 202 335 Concord v. Boscawen, 17 N. H. 465 327 V. Robinson, 121 U. S. 165 373 Conduit V. Jersey City, 17 Vroom, 157 621, 631 Conldin v. Thompson, 29 Barb. 218 597 Conner v. Nevada, 188 Mo. 148 408 ConnoUey v. Mayor of City of Nash\'ille, 100 Tenn. 262 592 Conrad v. Ithaca, 16 N. Y. 158 609, 144 Cook V. Milwaukee, 9 Law Reg. N. S. 263 610 Cook County v. City of Chicago, 158 m. 524 304 Cooley V. Freeholders of Essex, 27 N. J. 415 606, 621 V. Gramdlle, 10 Cush. 56 327, 329 Coolidge v. Brookline, 114 Mass. 592 319, 327, 337 Coonley v. City of Albany, 132 N. Y. 145 614 Cooper V. Detroit, 42 Mich. 584 638 Copley V. Grover & Baker Sewing Machine Co., 2 Woods, 494 563 Cordon v. Miller, 11 Mich. 581 281 Cornell v. Guilford, 1 Denio, 510 518 Corrigan v. Gage, 68 Mo. 541 266 Couglilan V. Cambridge, 166 Mass. 268 633 CouGHLiN V. McElroy, 74 Conn. 397 236 V. McElroy, 72 Conn. 99 236 Council Bluffs, City of, v. Stewart, 51 la. 385 399 County Com'rs of Anne Arundel V. Duckett, 20 Md. 468 606 Covington v. Kentucky, 173 U. S. 231 43, 44 Cowley V. Mayor of Sunderland, 6 H. & N. 565 125 Coy.zi. The City Council of Lyons, 17 la. 1 385, 658 Craft v. South Boston R. R., 150 Mass. 207 516 Crawford v. City of Topeka, 51 Kan. 756 293 V. Village of Delaware, 7 Oh. St. 459 555 Crofut V. City, 65 Conn. 294 427 Crook V. People, 106 111. 237 77 Crosby v. Grant, 36 N. H. 273 369 Crossett v. Janesville, 28 Wis. 420 642 Crowley v. Rochester Fireworks Co., 183 N. Y. 353 598 Cuddon v. Eastwick,:1 Salk. 192 1, 67 Culver V. Streator, 130 111. 238 571 Cumberland v. WiUison, 50 Md. 138 558 Cunljffe V. The Mayor, etc. of Al- bany, 2 Barb. 190 574 Cunningham v. Seattle, 40 Wash. 59 561 Cturan v. Boston, 151 Mass. 505 125, 594, 595, 630 Currie v. Southern Pac. Co., 21 Or. 566 197 Cusliing V. Stoughton, 6 Cush. 389 581 D. Dalton, In re, 61 Kan. 257 133 Dan\'ille, City of, v. Hatcher, 44 5. E. 723 283 Darley v. Queen, 12 CI. & F. 520 221 Darlington v. Mayor of New York, 31 N. Y. 164 108, 25, 624, 626, 637 Dartmouth CoUege v. Woodward, 4 WTieat. 694 88 Davenport v. Ruckman, 37 N. Y. 560 144 Davenport, City of, v. Peoria M. 6. F. I. Co., 17 la. 276 60 Daviess County v. Dickinson, 117 U. S. 657 374 Davis v. City of Des Moines, 71 la. 500 402, 405 Da\as V. City of Jackson, 61 Mich. 530 636, 637 V. City of Litchfield, 145 111. 313 266 Davoust v. Alameda, 149 Cal. 69 643 Day V. Greene, 4 Cush. 433 275 D'Amico V. Boston, 176 Mass. 599 588 Deane v. Randolph, 132 Mass. 475 556, 588 Deansville Cemetery Assoc, In re, 66 N. Y. 569 129 xu TABLE OF GASES. Decatur, City of, v. Vermillion, 77 111. 315 235 Defer v. Detroit, 67 Mich. 346 7 Delmonico v. The Mayor, etc. of New York, 1 Sandford, 222 576 De Motte v. Valparaiso, 161 Ind. 319 451 Denton v. Jackson, 2 Johns. Ch. 320 24 Denver v. Hallett, 34 Col. 393 424 Depere, Towti of, v. Town of Belle- vue, 31 Wis. 120 28, 46 Deshong v. City of New York, 176 N. Y. 475 432 Detroit, City of, v. Beckman, 34 Mich. 125 549, 636, 637 Detroit, City of, v. Blackeby, 21 Mich. 84 603, 7, 537, 583 Detroit v. Corey, 9 Mich. 165 7, 88, 638 Detroit v. Detroit Citizens' Street Railway, 184 U. S. 378 427, 436 Detroit r. Detroit & H. P. Road, 43 Mich. 140 124 V. Putnam, 45 Mich. 263 7 Deveraux v. City of Brownsville, 29 Fed. 742 69 Devine v. National Wall Paper Company, 95 App. Div. 194 432 Dewey v. Des Momes, 173 U. S. 193 45 Diamond v. City of Mankato, 89 Minn. 48 426 Dickinson v. Boston, 188 Mass. 595 588 V. Conway, 12 Allen, 487 514 Dill V. Wareham, 7 Met. 438 514, 515 Diver v. Savings Bank, 126 la. 691 423 Dixon County v. Field, 111 U. S. 83 497, 499, 502, 505, 506, 507 Dodge V. People, 113 111. 491 77 V. Woolsey, 18 Howard, 331 662 Doe V. Burnliam, 31 N. H. 426 369 Doherty v. Braintree, 148 Mass. 495 588 Dolan V. Mayor, 68 N. Y. 274 238 Dominic v. Sayre, 3 Sandford, 555 662 Donnaher v. The State, 8 Smed. & M. 649 277 Donovan v. The Mayor, etc., 33 N. Y. 291 519 Dorothy v. Pierce, 27 Ore. 373 395 Dorsey v. Smvth, 28 Cal. 21 237 Dorton v. Hearn, 67 Mo. 301 420 Doughten v. Camden, 72 N.J. L. 451 300 Dow V. Wakefield, 103 Mass. 267 117 Downes v. Hopkinton, 67 N. H. 456 545 Downing v. Citv of Milton vale, 36 Kan. 740 " 198 Drainage District, Comrs. of, v. Kelsey, 120 lU. 482 73 Drew V. Davis, 10 Vt. 506 327 Drv Dock Railroad Co. v. Mayor, 47 Hun, 221 309 DUFFIELD l). WiLLIAMSPORT ScHOOL District, 162 Pa. 476 278 Duggan V. Peabody, 187 Mass. 349 588, 589, 651 Dullam V. Wilson, 53 Mich. 392 218 Duncan v. LjTichburg, 34 S. E. 964 414 Dunham v. Rochester, 5 Cow. 462 210, 259, 266 Dumnore's Appeal, 52 Pa. St., 430 30,49 Dunn V. Framingham, 132 Mass. 436 349 E. 654 331 Eames v. Savage, 77 Me. 212 Earle v. Coburn, 130 Mass. 596 Eastern Counties R. R. Co. v. Hawkes, 38 E. L. & E. 8 East Hartford v. Hartford Bridge Co., 10 How. 511 Eastman v. Meredith, 36 N. H. 284 571, 323, 536, 558, 594, 605, 627, 647, 651 East Oaldand v. Skinner, 94 U. S, 255 East St. Louis v. Wehrung, 50 111 28 Eaton V. B. C. & M. R. R. Co., 51 N. H. 504 550 Eckerson v. Des Moines, 137 la. 452 ijOl 626 68 167 68 362 42 374 276 Edgerly v. Concord, 62 N. H. 8 Edwards v. Kearzey, 96 U. S. 595 V. U. S., 103 U. S. 471 V. Williamson, 70 Ala. 145 Ehrgott V. Mayor of New York, 96 N. Y. 264 34, 144 Elkhart v. Murray, 165 Ind. 304 271 Elliott v. Chicago, 48 111. 293 203 EUiott V. Detroit, 121 Mich. 611 153 Elmendorf v. Taylor, 10 ^^^leat. 152 539 Elmore v. Drainage Comrs., 135 111. 269 73 Emeric v. Oilman, 10 Cal. 408 671, 672 Emery v. Lowell, 104 Mass. 13 538 Ensign v. Supervisors of Livingston County, 25 Hun, 20 Equitable Cooperative Foundery Co. V. Hersee, 103 N. Y. 25 Erie v. Schwingle, 22 Penn. St. 388' Erving v. Mayor, etc. of New York, 131 N. Y. 133 Esberg Cigar Co. v. Portland, 34 Or. 282 645, 646 Essex Board v. Skinkle, 140 U. S. 334 Evans v. City of Trenton, 24 N. J. L. 764 Evansville, City of, v. State, 118 Ind. 426 ' 100 594 461 609 379 44 235 TABLE OF CASES. Xlll Fairbanks v. Fitchburg, 132 Mass. . 42 Fake v. \Miipple, 39 Barb. 339 Fallon, Matter of, 28 :\Iisc. Rep. 748 Farm\-iUe, TowTi of, v. Walker, 43 S. E. 558 Farnsworth Co. v. Rand, 65 Me. 19 Farnum v. Concord, 2 N. H. 392 472 328 343 283 330 536, 578 Farquharson v. Yeargin, 24 Wash. 549 408 Fay V. Prentice, 1 C. B. 828 557 Fayette\dlle v. Carter, 52 .-Vrk. 301 311 Federal St. Ry. Co. v. Allegheny, 14 Pittsb. L. J. (N. S.) 2.59 302 Fidehtv (The), 16 Blatchf. 569 568, 569 Fifth Avenue Coach Co. v. City of New York, 194 X. Y. 19 296 Finch V. Board, etc., 30 Oh. St. 37 11 Fire Department v. Kip, 10 Wend. 267 19 First Parish in Sutton v. Cole, 3 Pick. 232 535 Fisher v. Boston, 104 Mass. 87 619 Fisher Co. v. Woods, 187 N. Y. 90 294 Fisk, Ex parte, 72 Cal. 125 281 Flanders v. Franklin, 70 X. H. 168 545 Flint, etc. Plank-Road Co. v. Woodhidl, 25 :Mich. 99 355 Flood V. Leahy, 183 :\Iass. 232 347, 349 Floyd Acceptance Cases, 7 Wall. 666 487 Fors>-th V. Hammond, 166 U. S. 506 42, 153 Fort Smith v. Hunt, 72 Ark. 556 311 Fort Wayne v. Lake Shore & Michigan Southern Railway, 132 Ind. 558 443, 452 Fosdick V. SchaU, 99 U. S. 253 530 Fourth School District v. Wood, 13 Mass. 193 2 Fowler v. Bebee, 9 Mass. 231 231 Fox V. Philadelphia, 208 Pa. 127 580 Franlv, Ex parte, 52 Cal. 606 185 Freeholders of Sussex v. Strader, 3 Harr. (18 X. J.) 108 606, 621 Freeport Water Company v. Free- port City, 180 U. S. 587 428 French v. Benton, 44 X. H. 28 331 V. Quincy, 3 Allen, 9 420, 465, 633, 648 Friend v. Gilbert, 108 Mass. 408 344 Frost V. Behnont, 6 Allen, 152 327 Fuller V. Groton, 11 Gray, 340 347 Fulton, City of, v. Xorthern Illi- nois College, 158 111. 333 304 Furman v. Xichol, 8 Wall. 44 49 G. Galway Election Cases, 2 Moak, Eng. Cas. 714 Cans V. State, 10 Oh. St. 238 Garrison v. Howe, 17 N. Y. 458 Garvej' v. Long Island R. R. Co., 159 X. Y. 323 Gay i'. Cadby, 2 C. P. D. 391 Gas Companj', The, v. San Fran- cisco, 9 Cal. 453 Gaskill V. Dudley, 6 Met. 546 Geneva, Town of, v. Cole, 61 111. 397 George X. Fletcher & Sons v. Al- pena Circuit Judge, 136 Mich. 511 German-American Sa\'ings Bank V. Citv of Spokane, 49 Pac. 542 Gibb V. Washington, 1 :Mc.\11. 430 Gibbs V. Manchester, 73 N. H. 265 217, GiLBOY V. City of Detroit, 115 Mich. 121 582, Gillett V. Logan County, 67 111. 256 Oilman v. Laconia, 55 X. H. 1.30 Gihnore v. Lems, 12 Ohio, 281 Giozza V. Tiernan, 148 U. S. 657 Girard v. PhiladelpWa, 7 Wall. 1 Glaessner v. Anheuser Busch B. Assn., 100 Mo. 508 Glidden v. Unity, 33 X. H. 571 Godd.ard, Petitioner, 16 Pick. 504 Gooch V. Exeter, 70 X\ H. 413 Gorham v. Gross, 125 Mass. 232 GosUng V. Veley, 4 H. L. Cas. 679 Goss V. Greenleaf, 98 Me. 436 Gould V. Boston, 120 Mass. 300 Gove V. Epping, 41 X. H. 539 Graham v. City of Greenville, 67 Tex. 62 V. Roberts, 200 Mass. 152 Granby v. Thurston, 23 Conn. 419 Grant v. City of Davenport, 36 la. 396 385, Grant Co. v. Lake Co., 17 Or. 453 Gray v. Mount, 45 la. 591 V. Portland Bank, 3 Mass. 364 Gre.\t F.\lls Bank v. ToT\T>r of Farmington, 41 X. H. 32 Great Western RaUwav v. Rush- out, 5 DeG. & Sm. 290 Green, Matter of, 166 X. Y. 485 Green v. Bancroft, 75 X. H. 204 V. Biddle, 8 Wheaton, 92 V. Lake, 60 Miss. 451 V. Weller, 32 Miss. 630 160 220 383 297 589 518 535 230 352 403 230 218 543 471 545 235 119 66 430 369 298 100 558 160, 176 469 631 439 70 154 24, 117 407 398 423 533 368 321 345 218 661 274 198 Green Bay & ^I. Canal Co. v. Kau- kauna Water-Power Co., 70 Wis. 635 465, 466 Greenough v. Wakefield, 127 Mass. 275 327 XIV TABLE OF CASES. Greenwoods. Freight Co., 105 U. S. 13 78 Gridley v. City of Bloomington, 88 111. 554 307 Griffin v. Mayor, etc. of N. Y., 9 N. Y. 456 613 Grimes v. Keene, 52 N. H. 330 545 Grogan v. San Francisco, 18 Cal. 590 124 Guilford v. Supervisors, 13 N. Y. 143 30, 343 Guliok V. New, 14 Ind. 97 159 Gundling v. Cliicago, 177 U. S. 183 267 Gunnison County Commission- ers V. Rollins, r73 U. S. 255 499 GusHEE V. New York, 42 App. Div. 37 457 Gustafson v. Hamm, 56 Minn. 334 430 H. Hackettstown, TowTsr of, v. SWACKHAMER, 37 N. J. L. 191 363 Hafford v. City of New Bedford, 16 Gray, 297 540, 581, 589, 619 Hagerstown v. Klotz, 93 Md. 437 571 Hagerty v. Shedd, 75 N. H. 393 217 Haley v. Boston, 191 Mass. 291 587, 650 Hall V. Boston, 122 Mass. 344 651 V. Concord, 71 N. H. 367 545 V. Hall, 44 N. H. 293 331 V. Smith, 2 Bing. 156 14 Hallgren v. Campbell, 82 Mich. 255 218 Ham V. Board of Police, 142 Mass. 90 218 V. The Mayor, 70 N. Y. 459 594, 630 Hamilton v. St. Louis County Court, 15 Mo. 3 104 Hamilton County v. Mighels, 7 Ohio St. 109 11 Hampshire County v. Franklin County, 16 Mass. 76 23, 29 Hancock v. Hazzard, 12 Cush. 112 514 Hang Kie, In re, 69 Cal. 149 274 Hannibal & St. Jo. R. R. Co. v. Marion County, 36 Mo. 296 471 Hanover v. Eaton, 3 N. H. 38 369 V. Weare, 2 N. H. 131 369 Hanson v. Vernon, 27 la. 28 ' 129 Harding v. Illinois, 196 U. S. 78 45 Harper v. Milwaukee, 30 Wis. 365 558, 635 Harrington v. Worcester, 186 Mass. 594 589 Harris v. Baker, 4 Maule & Selw. 27 14 Harris v. Board of Supervisors, 105 111. 445 11 Hart V. Bridgeport, 13 Blatchf. 289 630 Hart V. Mayor, 9 Wend. 571 V. Millsville, 125 Wis. 546 210 548 Hartford Bridge Co. v. East Hart- ford, 16 Conn. 171 33, 49 Harwood v. Lowell, 4 Cush. 310 537 Haskell v. New Bedford, 108 Mass. 208 538 Hastings v. Spencer, 1 Curt. C. C. 504 370 Hatch V. Mann, 15 Wend. 46 235 Hatcheson v. Tilden, 4 H. & McH. 279 159 Hatfield v. Straus, 189 N. Y. 208 428 Hathaway, In re, 71 N. Y. 238 225 Hatheway v. Sackett, 32 Mich. 99 409 Having v. City of Covington, 25 Ky. Law Rep. 1617 592 Hawes v. Chicago, 158 111. 653 264 Hawkes v. Kennebeck, 7 Mass. 461 535 Hawks V. Charlernont, 107 Mass. 414 556 588 Hay V. Cohoes Co., 2 Comst. 159 ' 558 Hayes v. Holly Springs, 114 U. S. 120 374 Hayes v. City of Oshkosh, 33 Wis. 314 619, 634 Haynes v. Cape May, 21 Vroom, 55 262 Hayward v. Bath, 35 N. H. 514 219 Health Department v. Rector, etc., 145 N. Y. 32 294 Heard v. Stanford, Cases tempore Talbot, 174 670 Heath v. Des Moines & S. L. Ry. Co., 61 la. 11 430 Hedges v. Dixon Co., 150 U. S. 184 527 Heeg V. Licht, 80 N. Y. 579 600 Heins v. Lincoln, 102 la. 69 419 Heland v. City of LoweU, 3 All. 407 186 Hendee v. Pinkerton, 96 Mass. 381 465 Henderson, City of, v. Clayton, 57 S. W. 1 564 Henley v. Lyme Regis, 5 Bing. 91 572, 575, 608, 610 Herrington v. Santa Clara County, 44 Cal. 496 233, 234 Herzo v. San Francisco, 33 Cal. 134 515 Hewison v. New Haven, 37 Conn. 475 124, 537 Hicks V. Long Branch, 40 Vr. 300 203 Higginbotham v. Com., 25 Grat. 633 26 Hildreth v. Lowell, 11 Gray, 345 538 i^. MTntire, IJ. J. Marsh. 207 229 Hill V. Board of Supervisors of Livingston County, 12 N. Y. 52 248 Hill v. Boston, 122 Mass. 344 534, 557, 583, 633 V. Memphis, 134 U. S. 198 132, 373 TABLE OF CASES. XV Hill V. Scotland County, 34 Fed. 208 509 Hinde v. Vattier, 1 M'Lean, 118 370 Hitchcock V. Galveston, 96 U. S. 341 471, 527, 528 Hitchcock v. St. Louis, 49 Mo. 484 318 Hixon V. Lowell, 13 Gray, 59 537 HixoN V. Sharon, 190 Mass. 347 347, 349, 350 Hodge V. The City of Buffalo, 2 Denio, 110 317, 518 Hoey V. Gikoy, 129 N. Y. 132 429 Hoggard v. Monroe, 51 La. Ann. 683 652 Hoke V. Henderson, 4 Dev. 1 167 Holland v. San Francisco, 7 Cal. 361 645 Hollenbeck v. Winnebago County, 95 111. 148 11 HOLLMAN V. PlATTEVILLE, 101 Wis. 94 641 Holman v. Townsend, 13 Met. 300 577 Holt V. Somerville, 127 Mass. 408 202 Home Ins. Co. v. Augusta, 50 Ga. 530 316 Hood v. Lynn, 1 Allen, 103 245, 327 Hooper v. Emery, 14 Me. 377 328, 571, 577 Hopkins v. City of Duluth, 81 Minn. 189 152 Hopper V. Covington, 118 U. S. 148 374 Hopple V. Hippie, 33 Ohio St. 116 491 V. Trustees of Brown To^vti- ship in Delaware Co., 13 Ohio St. 311 491 Horner v. Coffey, 25 Miss. 434 653 Horner v. Rowley, 51 la. 620 184 Horton v. Ipswich, 12 Cash. 488 536 Hot Springs Electric Light Co. v. Hot Springs, 70 Ark. 300 311 Howard v. Worcester, 153 Mass. 426 125, 557, 630, 631 Howard County, Division of, 15 Kan. 194 198 Hughes V. Ewing, 93 Cal. 414 28 Hughes v. Monroe County, 147 N. Y. 49 592, 628 Hull V. Supervisors, 19 Johns. 260 659 Humboldt Township v. Long, 92 U. S. 642 485, 497, 507 Hume V. Mayor of N. Y., 74 N. Y. 264 144 Humphreys v. Mears, 1 Man. & Ryl. 187 14 Hundley v. Harrison, 123 Ala. 292 599 Hunt V. City of Boom-ille, 65 Mo. 620 560 V. The Mavor, 109 N. Y. 134 626 Hunter v. Chandler, 45 Mo. 452 ■ 225 V. Nolf, 71 Pa. 282 235 Hunter v. Pittsburg, 207 U. S. 161 40 Huron Waterworks Co. v. Huron, 7 S. D. 9 445 Hutcliins V. Smith, 63 Barb. 251 297 Hutson V. Mayor of N. Y., 9 N. Y. 163 144, 609 Hyde v. Jamaica, 27 Vt. 443 536 I. Illinois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271 463 Indiana Co. v. Agricultm-al Society, 85 Pa. 357 335 Indianapolis, City of, v. Center Township, 143 Ind. 391 36 Indianapolis, City of, v. Indianapo- lis G. & C. Co., 66 Ind. 396 463 Jacksonville, City of, v. Ledwith, 26 Fla. 163 272 Jacobs, Matter of, 98 N. Y. 98 294 James v. Seattle, 22 Wash. 654 338 Jamison v. Fopiana, 43 Mo. 565 444 Jenkins v. Andover, 103 Mass. 94 129, 422 Jenne v. Sutton, 43 N. J. L. 257 597 Jensen, Matter of, 28 Misc. Rep. 379 343, 345 Johnson v. City of San Diego, 109 Cal. 468 26 Johnson City v. Charleston, C. & C. R. Co. ,100 Tenn. 138 525 Jones V. McAlpine, 64 Ala. 511 184 V. New Haven, 34 Conn, 1 537, 606, 610 V. WilUamsburg, 97 Va. 722 571 Jorgensen v. Squires, 144 N. Y. 280 429, 431 Jumbo Cattle Co. v. Bacon, 79 Tex. 12 436 Justices of Clark Count}' Court v. The P. & W. &. K. R. T. Co., 11 B. Monroe, 143 658 Justices, Opinion of, 160 Mass. 586 153, 154 Justices, Opinion of, 3 Me. 481 213 Justices' Opinion, 6 Cush. 577 24 K. Kadish v. Building Ass., 151 111. 531 304 Kameta, Ex parte, 36 Or. 251 199 Kansas City v. Lemen, 57 Fed. 905 582 Keasy v. City of Louisville, 4 Dana, 154 552 Kedzie v. West Park Comrs., 114 111. 280 11 Keeley v. Portland, 100 Me. 260 650, 651 Keilinger v. Bickel, 117 Pa. St. 326 281 XVI TABLE OF CASES. Kelley v. Lindsey, 7 Gray, 287 514, 516 V. Milan, 127 U. S. 139 373 V. Milwaukee, 18 Wis. 83 619 Kelly V. Boston, 186 Mass. 165 580, 589 V. Mayor of Brooklyn, 4 Hill, 263 356 V. Pittsburgh, 104 U. S. 78 42 Kelsey v. Wayne Circuit Judge, 120 Mich. 457 352 Kelso v. Teale, 106 Cal. 477 331 Kennedy v. Green, 3 Myl. & K. 721 370 Kent V. Rand, 64 N. H. 45 331 Ketchum v. City of Buffalo, 14 N. Y. 356 356, 360 Keyes v. Village of Marcellus, 50 Mich. 439 7 Khron v. Brock, 144 Mass. 516 558 Kies V. Erie, 135 Pa. 144 621 V. Lowrey, 199 U. S. 233 43 Kilgore v. Magee, 85 Pa. 401 96 King V. Granger, 21 R. I. 93 550 —^ V. Pasmore, 3 T. R. 199 13, 35 King (The) v. The Inhabitants of Derby, Sldnner, 370 658 King IK Warlow, 2 M. & S. 75 225 King & Queen v. Barlow, 2 Salkeld, 609 658 Kingman, Petitioner, 153 Mass. 566 118, 123 Kinmundy v. Mahan, 72 111. 462 276 KipPEs V. Louisville, 140 Ky. 423 591 Kirk V. Nowill, 1 T. R. 124 210 Klingman v. City, 153 Mass. 255 421 Knox V. Aspinwall, 21 How. 544 482, 483, 488, 492 Kreitz v. Belirensmeyer, 149 111. 496 239 Labrake, Matter of, 29 Misc. Rep. 87 343 La Clef V. Concordia, 41 Kan. 323 582 Ladd V. Brick Co., 68 N. H. 185 439 Lake County v. Graham, 130 U. S. 674 497, 498, 499, 503, 505, 506, 507 V. Rollins, 130 U. S. 662 399, 408 Lake County Water & Light Co. V. Walsh, 160 Ind. 32 452 Lake View, City of, v. Tate, 130 111. 247 265 Lamar Water, etc. Co. v. City of Lamar, 128 Mo. 188 249 Lancaster County v. Fulton, 128 Pa. 48 234, 235 Landaff's Petition, 34 N. H. 163 219 Landau v. City of New York, 180 N. Y. 48 596, 597, 598 Lang V. Bayonnc, 74 N. J. L. 455 236 Langworthy v. Dubuque, 16 la. 273 24 Lansing v. County Treasurer, 1 Dill. 522 50 Lansing, City of, v. Toolan, 37 Mich. 152 636, 637 La Porte v. Gamewell F. A. T. Co., 146 Ind. 466 408 Laporte City, Town of, v. Good- fellow, 47 la. 572 199 Laramie County v. Albany County, 92 U. S. 307 20, 28, 30, 33, 42, 540 Larkin v. County of Saginaw, 11 Mich. 88 636, 637 Larrabee v. Peabody, 128 Mass. 561 652 Launtz v. People, 113 111. 137 175 Lawrence v. Fairhaven, 5 Gray, 110 537 V. Ingersoll, 6 L. R. A. 308 180 V. McAlvin, 109 Mass. 311 347 Layton v. New Orleans, 12 La. Ann. 516 25, 28, 30, 50 Leach v. People, 122 111. 420 230, 231 Lebanon v. Griffin, 45 N. H. 558 331 Lee V. Village of Sandy Hill, 40 N. Y. 442 604, 609 Lee County v. Rogers, 7 Wall. 181 49, 676 Le Feber v. West Allis, 119 Wis. 608 426 Lehigh Valley R. R. Co. w. Br and t- maier, 113 Pa. 610 287 Leonard v. Middleborough, 198 Mass. 221 348 Le Roy v. Hurlbut, 24 Mich. 44 82, 7, 124, 638 Lester v. Jackson, 69 Miss. 887 415, 416 Levy v. Mayor, etc. op New York, 1 Sandf. 465 569 Lewis, Ex parte, 45 Tex. Cr. 1 101 Lewis V. Widber, 99 Cal. 412 395 LiBBY V. Portland, 105 Me. 370 647 Limestone County, Comrs. of, v. Rather, 48 Ala. 433 68 Lincoln v. Boston, 148 Mass. 578 125 Linehan v. Cambridge, 109 Mass. 212 129 Litchfield v. Ballou, 114 U. S. 190 520 Little v. Holyoke, 177 Mass. 114 642, 588, 651 Little V. Madison, 49 Wis. 605 635 Livermore v. Board, etc., 2 Vroom, 508 621 V. Freeholders of Camden, 29 N. J. 245 606 Lloyd V. Smith, 176 Pa. 213 96 V. The Mayor, 5 N. Y. 374 573, 594, 613, 624 Loan Assoc, v. Topeka, 20 Wall. 655 346 Logan V. Pyne, 43 la. 524 419 TABLE OF CASES. XVll Logansport, City of, v. Crockett, 64 Ind. 319 185 V. Legg, 20 Ind. 315 188 London v. Headen, 76 N. C. 72 168 Los Angeles v. Los Angeles City Water Company, 177 U. S. 558 428 Los Angeles County v. Orange County, 97 Cal. 329 28 Louisiana v. Mayor of New Or- leans, 109 U. S. 285 68 V. Pillsbury, 105 U. S. 278 68 Louisiana v. Wood, 102 U. S. 294 510, 527, 528, 564 Louisville Trust Co. v. City of Cin., 76 Fed. 296 , 436 Louisville v. University of I/)uis- ville, 15 B. Mon. 642 124 Lowber v. Mayor, etc., 5 Abbott Pr. 325 383 Lowell Five Cents Savings Bank v. Winchester, 8 Allen, 109 514 Lowell V. Simpson, 10 Allen, 88 275 Luehrman v. Taxing District, 2 Lea 425 64 Lumbard v. Stearns, 4 Cush. 60 129 Luques v. Dresden, 77 Maine, 186 327 Lycoming v. Union, 15 Fa. St. 166 28 Lynch v. Springfield, 174 Mass. 430 588 Lynde v. The County of Winne- bago, 16 Wall. 13 485 Ljmn V. Nahant, 113 Mass. 433 535 Lyon V. Jerome, 26 Wend. 485 276 M. Mackey v. City of Vicksburg, 64 Miss. 777 640 Madison, City of, v. Korbly, 32 Ind. 74 180 Malcohn v. Rogers, 5 Cow. 188 248, 658 Manning v. Springfield, 184 Mass. 245 589 Mannix v. State, 115 Ind. 245 180 Marcy v. Oswego, 92 U. S. 637 497, 506, 507 Marion County, Comrs. of, v. Clark, 94 U. S. 278 509 Marmet v. State, 45 Ohio St. 63 315 Marsh v. Fulton County, 10 Wallace, 676 474, 374, 484, 512 Marshfield v. Wis. Tel. Co., 102 Wis. 604 313, 314, 315 Marston v. Scarborough, 71 Me. 267 650 Maryland v. Baltimore & O. R. R., 3 How. 534 42 Mason v. Fearson, 9 How. 246 658 V. Haile, 12 Wheaton, 379 661 Mather v. City of Ottawa, 114 111. 659 420 Maxmiliani;. The Mavor, 62 N. Y. 160 145, 582, 593, 624, 627 May V. People, 1 Colo. App, 157 272 Maydwell v. City of LouisvUle, 116 Ky. 885 592 Mayor v. Furze, 3 Hill, 612 263, 572, 625, 658 V. Groshon, 30 Md. 436 133 V. Harris, 73 Ga. 428 430 V. Houston Ry. Co., 83 Tex. 555 436 V. Ray, 19 WaU. 468 368 V. Second Ave. R. Co., 32 N. Y. 261 317 V. The State, 15 Md. 376 24 V. Yuille, 3 Ala. 137 341 Mayor & City Council of Balti- more V. Radecke, 49 Md. 217 272, 276 Mayor & City Council of Cumber- land V. Willison, 50 Md. 138 558 Mayor of Lyme v. Turner, Cowper, 87 572, 608 Mayor of New York, In re, 193 N. Y. 503 162 Mayor, etc. of New York, Matter of, 99 N. Y. 569 345 Mayor, etc. of New York v. Bailey, 2 Denio, 456 575 V. Sheffield, 4 Wall. 189 539 V. Tenth Nat. Bank, 111 N. Y. 446 344 McArthur v. Saginaw, 58 Mich. 357 7 McCarthy v. Mayor of New York, 96 N. Y. 1 139 V. Syracuse, 46 N. Y. 194 625 McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40 297 McCarver, Ex parte, 39 Tex Cr. 448 267 McClaughry v. Hancock County, 46 111. 356 471 McCloskey v. Krehng, 76 Cal. 511 274 McClure v. Township of Oxford, 94 U. S. 429 494 McCombs V. Akron Council, 15 Ohio, 474 555 McConoughey v. Jackson, 101 Cal. 265 339 McCormick v. Bay City, 23 Mich. 457 355 McCoRTLE V. Bates, 29 Oh. St. 419 207 McCracken v. Hayward, 2 How- ard, 612 661 V. San Francisco, 16 Cal. 624 477 McCready v. Guardians of the Poor of Philadelphia, 9 S. & R. 94 564 McCullough V. Moss, 5 Denio, 567 356 McCuUy V. State, 102 Tenn. 509 219 McDade v. City of Chester, 117 Pa. 414 583 McDonald v. Mayor, etc. of New York, 68 N. Y. 23 516, 515 McDonald v. State, 80 Wis. 407 198 XVUl TABLE OF CASES. McGill V. Granite Co., 70 N. H. 125 546 McGillivray v. Joint School Dist., 112 Wis. 354 408 McGinnis v. Inhabitants of Med- way, 176 Mass. 67 543, 544 McKellar v. Detroit, 57 Mich. 158 7 McKim V. Odom, 3 Bland, 407 22 McKinnon v. Cotner, 30 Or. 588 197 McLean Coimty Precinct v. De- posit Bank, 81 Ky. 254 677 McPherson v. Foster, 43 la. 48 419 McVeany v. Mayor, 80 N. Y. 185 238 Mead v. Acton, 139 Mass. 341 422 V. Keeler, 24 Barb. 29 362 V. New Haven, 40 Conn. 72 543, 583, 630, 631 Mears v. Wilmington, 9 Iredell, 73 574, 575, 609 Melker v. New York, 190 N. Y. 481 595 Memphis v. Am. Exp. Co., 102 Tenn. 336 317 V. W^oodward, 12 Heisk. 499 237 Mentz, Town of, v. Cook, 108 N. Y. 504 459 Mercer County v. Hackett, 1 WaU. 33 483 Merchants' Bank v. Cook, 4 Pick. 114 577 Meriv/ether v. Garrett, 102 U. S. 472 54, 42, 44, 79, 123, 327, 447, 675 Merrifield v. Worcester, 110 Mass. 216 538 Merrill v. MonticeUo, 138 U. S. 673 372, 373, 374, 375 V. Plainfield, 45 N. H. 126 439 Merrimack R. S. Bank v. Lowell, 152 Mass. 556 125 Mersey Docks v. Gibbs, 11 H. L. Cas. 686 125 Metropolitan Railroad v. Dis- trict OF Columbia, 132 U. S. 1 3 Mich. Tel. Co. v. Benton Harbor, 121 Mich. 512 315, 317 Middlesex Co. v. McCue, 149 Mass. 103 558 Midland Ry. Co. v. Great Western Ry. Co., 8 Ch. App. 841 465 Mikesell v. Dm-kee, 34 Kan. 509 430 Miles v. City of Worcester, 154 Mass. 511 557 MiUer v. Warner, 42 App. Div. 208 213 Mills v. Brooklyn, 32 N. Y. 489 546, 609, 616 Mills v. Gleason, 11 Wis. 470 359, 366 Mills V. Williams, 11 Ire. 558 19 Milne v. Davidson, 8 Mart. 586 187 Milner v. Pensacola, 2 Woods, 662 75 Milwaukee v. Milwaukee, 12 Wis. 93 107 Minner v. The Merchants' Bank, 1 Peters, 64 658 Minot V. West Roxbury, 112 Mass. 1 320, 321, 337 Minturn v. Larue, 23 How. 437 341 Missano v. Mayor of N. Y., 160 N. Y. 123 144 Mitchell V. Burlington, 4 Wallace, 270 373 Mobile v. Watson, 116 U. S. 289 64, 71,78 Mobile, Coimty of, v. Kimball, 102 U. S. 691 117 Mobile & S. H. R. R. v. Kennerly, 74 Ala. 566 67 Molloy v. New Rochelle, 198 N. Y. 402 377 Moneyweight Scale Co. v. Mc- Bride, 199 Mass. 503 276 Monterey v. Jacks, 203 U. S. 360 44 Montgomery v. W^est, 9 L. R. A. (N. S.), 659 277 Montpelier v. East MontpeUer, 29 Vt. 20 23, 59, 124 Moran v. Miami Coimty, 2 Black, 732 483 Morgan v. Beloit, 7 WaU. 613 46 V. HalloweU, 57 Maine, 375 537 Morgan Railroad Co. v. Board of Health of Louisiana, 118 U. S. 455 285 Morris v. State, 62 Tex. 728 71, 76 Morrison v. City of Lawrence, 98 Mass. 219 ' 560 Morton v. Mayor, etc. of N. Y., 140 N. Y. 207 297 Morville v. American Tract Society, 123 Mass. 129 515 Moses V. MacFerlan, 2 Burr. 1005 512 V. U. S., 16 App. Cas. D. C 428 Moss V. McCuUough, 5 Hill, 131 V. Oakley, 2 Hill, 265 297 356 356 356 192 Mott V. Hicks, 1 Cow. 513 Motz V. Detroit, 18 Mich. 495 Moundsville v. Velton, 35 W. Va. 217 199 Mount Pleasant v. Beckwith, 100 U. S. 514 45, 28, 30, 33, 42, 67, 68, 71, 78, 124, 132 Mower i>. Leicester, 9 Mass. 247 601, 536, 577, 578 Mugler V. Kansas, 123 U. S. 623 274 Mulcairns v. City of Janes\t[le, 67 Wis. 24 633 Munn V. lUmois, 94 U. S. 113 281 Murphy v. Needham, 176 Mass. 422 546, 590 Murray v. Omaha, 66 Neb. 279 542 Murtaugh v. City of St. Louis, 44 Mo. 479 630 Muscatine Turnverein v. Funck, 18 la. 469 81 TABLE OF CASES. XIX N. Nebraska City v. Campbell, 2 Black, 590 Neff V. WeUesley, 148 Mass. 487 Nelson v. Mayor, 63 N. Y. 535 • V. Milford, 7 Pick. 18 ■V. St. Martin, 111 U. S. 720 539 125, 589 518, 619 347 664, 666 420 Nerlien v. Brooten, 94 Minn. 361 Neuman v. State, 76 Wis. 112 316 Nevins v. City of Peoria, 41 111. 502 550 Newbold v. Glenn, 67 Md. 489 444 Newburg Turnpike Co. v. Miller, 5 Johnson's Chancery, 113 248, 658 New Jersey v. Wilson, 7 Cranch, 166 662 Newlin, Township of, v. Davis, 77 Pa. 317 288 New London v. Barnard, 22 Conn. 552 317 New Orleans v. Clark, 95 U. S. 644 28, 42, 51, 344 V. Morris, 105 U. S. 600 448 V. New Orleans Water Works Co., 142 U. S. 79 44, 119 New Orleans Gas Company v. Louisiana Light Company, 115 U. S. 650 428 New Orleans Gaslight Co. v. City of New Orleans, 42 La. Ann. 188 463 New Orleans R. R. v. City of New Orleans, 26 La. Ann. 478 67 New Orleans Waterworks Com- pany V. Rivers, 115 U. S. 674 428 New Shoreham v. Ball, 14 R. I. 566, 649 Newton v. Belger, 143 Mass. 598 272, 275 V. Joyce, 166 Mass. 83 274 New York, Lake Erie & Western R. R. Co. V. Commonwealth of Pennsylvania, 153 U. S. 628 436 New York, Mayor of, v. Second Ave. R. R., 32 N. Y. 261 124 Niagara Falls & Whirlpool Ry. Co., Matter of, 108 N. Y. 375 345 Nichols V. Boston, 98 Mass. 39 557 Nicholson v. Detroit, 129 Mich. 246 633 Nightingale, Petitioner, 11 Pick. 168 259, 260 Niles Water Works v. City of Niles, 59 Mich. 324 638 Nims V. Mavor, etc., 59 N. Y. 500 549 Noel V. People, 187 111. 587 272 Norfolk v. Flynn, 101 Va. 473 282 North Chicago City Railway Co. V. Town of Lake View, 105 111. 183 309 North Chicago Electric Railway Co. V. Penser, 190 111. 67 308 North Hemstead v. Hemstead, 2 Wend. 109 23, 26, 33, 49 North Hudson Railroad Co. v. Ho- boken, 12 Vroom, 71 309 Northern Bank w.Porter Town- ship, 110 U. S. 608 489, 501, 506 Northern Liberties, Com'rs of, V. Northern Liberties Gas Co., 12 Pa. St. 318 277 Northern T. Co. v. Snyder, 113 Wis. 516 413 Norton v. Dyersburg, 127 U. S. 160 373 V. Mansfield, 16 Mass. 48 533 V. Shelby County, 118 U. S. 425 230, 236 Norwich v. County Com'rs, 13 Pick. 60 116 O. Oaths to be taken by Attorneys, In re, 20 Jolins. 491 225 O'Brien v. Derry, 73 N. H. 198 545 • V. Worcester, 172 Mass. 348 589 O'Connor v. Memphis, 6 Lea, 730 64, 67, 79 O'Donnell v. Syracuse, 184 N. Y. 1 611 Ogden V. Saunders, 12 Wheat. 231 661 Ogg V. Lansing, 35 la. 495 583 Ohio ex rel. v. The Governor, 5 Oh. St. 53 658 O'Leary v. Fire and Water Com- missioners, 79 Mich. 281 6 Oliver v. Worcester, 102 Mass. 489 537, 538, 589, 631, 643, 648, 650 Olney v. Harvey, 50 111. 455 26, 49 Omaha, City of, v. Croft, 60 Nebr. 57 544 Oregon v. Jennings, 119 U. S. 74 504 Orleans v. Pratt, 99 U. S. 676 501 O'Rourke v. Sioux Falls, 4 S. D. 47 571 Osgood v. Conway, 67 N. H. 100 330 Osgood V. Nelson, L. R. 5 H. L. 636 219 Ottawa V. Carey, 108 U. S. 110 341 Page V. Allen, 58 Pa. 338 97 Palmer v. City of Danville, 154 111. 156 266 Parker v. Lowell, 11 Gray, 353 537 Parkersburg v. Brown, 106 U. S. 487 527, 528, 529 Parr v. Greenbush, 72 N. Y. 463 515 Parsons v. Goshen, 11 Pick. 396 246, 533 Passaic, City of, v. Patterson Bill Posting Advertising & Sign P. Co., 72 N. J. L. 285 293 Paterson v. Society, 4 Zab. 385 13, 35 XX TABLE OF CASES. Patton V. Board of Health, 127 Cal. 388 213 Pawlet, Town of, v. Clark, 9 Cr. 292 88 Peck V. Burr, 10 N. Y. 294 519 Pekin, City of, v. McMahon, 154 111. 141 639 Pennoyer v. SagLaaw, 8 Mich. 534 7, 550 Pennsylvania Co. v. James, 81 * Pa. 194 289 V. Stegemeier, 118 Ind. 305 186 Pennsylvania Railroad Com- pany's Case, 213 Pa. 373 286 Pennsylvania R. R. Co. v.Duquesne Borough, 46 Pa. 223 288 V. Irwin, 85 Pa. 336 288 Pension Fund Assoc, v. Wal- ton, 182 Pa. 373 333 People V. Alameda County, 26 Cal. 641 28, 30 V. Anderson, 239 111. 266 73 V. Arguello, 37 Cal. 524 383 V. Barnett Township, 100 111. 332 168 People v. Batchellor, 53 N. Y. 128 120, 124 V. BeU, 10 Cal. 570 662 V. Board of Education, 127 111. 624 170, 209 People v. Board of Education, 143 N. Y. 62 209 V. Bond, 10 Cal. 570 661 V. Brown, 83 111. 95 77 V. Chicago W. Div. Ry. Co., 118 111. 113 302 People v. Clute, 50 N. Y. 451 156 People V. Coler, 166 N. Y. 1 136, 137, 139, 346 V. Common Council, 28 Mich. 228 100, 124, 145, 625 V. Detroit United Railway, 134 Mich. 682 271 V. Draper, 15 N. Y. 549 24, 100, 116 V. Ewer, 141 N. Y. 129 294 V. Fairbury, Town of, 51 111. 149 73 V. Fire Com'rs, 72 N. Y. 445 219 z;. Flagg, 46 N. Y. 401 116,120, 121 People v. French, 32 Hun, 112 214 People V. Gillson, 109 N. Y. 389 294 V. Hawes, 37 Barb. 440 114 V. Hepler, 240 111. 196 73 People v. Hurlbut, 24 Mich. 44 82, 7, 124, 638 People V. Jerome, 73 N. Y. Supp. 306 470 V. Kipley, 171 111. 44 213 V. Mahaney, 13 Mich. 481 100, 198 V. Mayor of Chicago, 51 111. 1 124 V. McBride, 234 111. 146 75 People V. MorreU, 234 111. 47 74 V. Morris, 13 Wend. 325 19, 67, 111, 123, 323 People v. Nibbe, 150 111. 269 38 People V. Nichols, 79 N. Y. 582 219 People v. Niebruegge, 244 111. 82 72 People V. O'Brien, 111 N. Y. 1 124 V. Orange Co. Road Cons. Co., 175 N. Y. 84 139, 294 V. Pinkney, 32 N. Y. 393 24 V. Salomon, 51 111. 37 11 V. Shepard, 36 N. Y. 285 100 V. Stratton, 28 Cal. 382 225 V. Sup. Court, 5 Wend. 125, 10 Wend. 289 659 V. Therrien, 80 Mich. 187 218 V. Toal, 85 Cal. 333 230 V. Vermilyea, 7 Cowen, 393 659 ?;. Walsh, 96 111. 232 11 People v. Welles, 14 N. Y. Misc. 226 205 V. Williams, 145 111. 573 165 People V. Wood, 148 N. Y. 142 203 V. Wren, 4 Scam. 269 19, 73 Peoole ex rel. v. May, 9 Col. 80 399 People ex rel. Brown v. Bd. of Supers., Onondaga Co., 4 N. Y. Cr. Rep. 102 344 People ex rel. Coughlin v. Gleason, 121 N. Y. 631 379, 380 People ex rel. Dunn, v. Ham, 166 N. Y. 477 296 People ex rel. Leutilhon v. Coler, 168 N. Y. 8 139 People ex rel. Lunney v. Campbell, 72 N. Y. 496 " 380 People ex rel. Murphy v. Kelly, 76 N. Y. 475 345, 415 People ex rel. N. Y. E. L. Co. v. Squire, 107 N. Y. 593 314 People ex rel. North v. Feather- stonhaugh, 172 N. Y. 112 139 People ex rel. Society of the New York Hospital v. Purdy, 126 N. Y. 679 595 People ex rel. Treat v. Coler, 166 N. Y. 149 139 People ex rel. Wineburgh v. Murphy 195 N. Y. 126 289 Perin v. Carey, 24 How. 465 410 Perkins v. Lawrence, 136 Mass. 305 588 V. Milford, 59 Me. 315 328 V. New Haven, 53 Conn. 214 212 Perry v. Worcester, 6 Gray, 544 537 Perry County v. Conway County, 52 Ark. 430 30 Peters v. City of Lindsborg, 40 Kan. 654 544 Peterson v. The Mayor, 17 N. Y. 449 519 TABLE OF CASES, XXI Pettingell v. Chelsea, 161 Mass. 368 621 Pevey v. Aylward, 205 Mass. 102 200 Pfahler, In re, 150 Cal. 71 149 Phelps v. Hawley, 52 N. Y. 23 248 Philadelphia v. Field, 55 Pa. 320 116 V. Fox, 64 Pa. 169 92, 95 V. Ilinlv, 2 Atl. 505 238 V. W. U. Tel. Co., 11 PhUa. 327 314 Philadelpliia & Reading R. R. Co. V. Killips, 88 Pa. 405 287 Philadelpliia, Wilmington, & Bal- timore R. R. V. Quigley, 21 How. 202 563 Pickard v. Sears, 6 A. & E. 474 47 Pierce v. Bartrmn, Cowp, 269 253 Pikes Peak Power Co. v. Colo- rado Springs, 105 Fed. 1 462 Piqua Branch v. Ivnoop, 16 How. 331 662 Pittsburg City v. Grier, 22 Pa. 54 575, 609 Pittsbm-g, etc. R. Co. v. Town of Crown Point, 146 Ind. 421 452 Piatt V. Waterburv, 72 Conn. 531 550 Platters. Board, etc., 103 Ind. 360 -444 Plessy V. Ferguson, 163 U. S. 537 276 Ploughboy (The), 1 Gall. 41 370 Plymouth, City of, v. Schultheis, 135 Ind. 339 272 PoUce Com. v. Louisville, 3 Bush, 597 100 Pohce Jury t;. Britton, 15 Wall. 566 373 Pontiac v. Carter, 32 Mich. 164 548 Porter v. Sullivan, 7 Gray, 441 535 Port Huron, City of, v. McCall, 46 Mich. 565 354 Portland v. Yick, 44 Or. 439 195 Postal T. C. Co. V. Taylor, 192 U. S. 64 317 Potter V. Douglas Co., 87 Mo. 240 401 Potts v. Cape May, 66 N. J. L. 544 340 Powell V. Pennsylvania, 127 U. S. 678 274 Powers V. Wood County, 8 Oh. St. 290 26 Pratt V. Allen, 13 Conn. 119 116 V. Weymouth, 147 Mass. 245 125, 589 Prav V. Jersey City, 3 Vroom, 394 537, 606, 621 President, etc. v. City of Indian- apohs, 12 Ind. 620 60 V. Thompson, 20 111. 197 73 Prince v. City of Quincy, 105 lU. 138 399 Pritchard v. Edison Elec. 111. Co., 179 N. Y. 364 297 Proprietors of Locks & Canals v. Lowell, 7 Gray, 223 538 Proprietors of Mount Hope Cemetery v. Boston, 158 Mass. 509 123 Providence, City of, v. Clapp, 17 How. 161 606 V. Union Ry. Co., 12 R. I. 473 302 Pumpelly v. Green Bay Co., 13 Wall. 166 550, 558 Putnam v. Langley, 133 Mass. 204 203 Q- Queen v. Mayor, L. R. 3 Q. B. 629 16 T V. Mayor of Sheffield, L. R. 6 Q. B. 652 R. 614 262 526 124 119 Radcliff's Exrs. v. Mayor, etc. of Brookh-n, 4 N. Y. 195 Rafferty v. Central Traction Co., 147 Pa. St. 579 Railroad Co. v. Bensley, 6 U. S. App. 115 V. EUerman, 105 U. S. 166 V. Otoe, County of, 16 Wall. 667 Railroad Company v. Richmond, 96 U. S. 521 277 Railroad Company v. Savannah, 77 Ga. 731 309 Railroad National Bank v. City OF Lowell, 109 Mass. 214 513, 516 Railway Co. v. Thompson, 24 Kan. 170 526 Ralls County Court v. U. S., 105 U. S. 733 68, 69 Rasinussen v. Carbon County, 8 Wyo. 277 237 Rathbone v. Wirth, 150 N. Y. 459 101 Rauch v. Chapman, 16 Wash. 568 392 Rawson v. Spencer, 113 Mass. 40 123, 127, 129 Read v. Atlantic City, 49 N. J. L. 558 463 V. Camden, 25 Vroom, 347 263 V. Citv of Plattsmouth, 107 U. S. 568 527, 528 Red Wing, City of, v. Chicago, M. & St. P. Ry. Co., 72 Minn. 240 426 Reed v. Belfast, 20 Me. 246 536, 577 V. Home Savings Bank, 130 Mass. 443 563 Rees v. Watertown, 19 Wall. 107 667, 675 Reg. V. Smith, 5 Q. B. 614 219 Requa v. City of Rochester, 45 N. Y. 129 144 Rex V. Bridge, 1 M. & S. 76 160 V. Cambridge Univ., Fort. 202 V. Foxcraft, 2 Burr. 1017 V. Gower, 3 Salk. 230 V. Hawkins, 10 East. 211 166 176 166 160 xxu TABLE OF CASES. Rex V. Parry, 14 East. 549 160 I Reynolds v. Commissioner, etc., 5 Oliio, 204 444 V. Waterville, 92 Me. 292 408, 469 Rhobidas v. Concord, 70 N. H. 90 646 Rhodes v. Cleveland, 10 Oh. 159 576 Richardson v. Smith, 59 N. H. 517 219 Richland, County of, v. County of Lawrence, 12 111. 8 23, 30, 88, 124 Richmond v. Long's Adm'rs, 17 Gratt. 375 582, 610, 630 V. Smith, 15 Wall. 429 539 Richmond, City of, v. Dudley, 129 Ind. 112 272, 273, 276 Riddle v. Proprietors of Locks & Canals, 7 Mass. 169 323, 536, 575, 577 Riley z^. Rochester, 9 N. Y. 64 415 Ritchie v. Richards, 14 Utah, 345 198 Robert v. Powell, 168 N. Y. 411 432 Roberts v. City of Louisville, 17 S. W. 216 449 V. State, 160 N. Y. 217 345 Rochester v. Macauley-Fien Milling Co., 199 N. Y. 207 295 Rochester v. Roberts, 29 N. H. 360 116 Rochester, City of, v. Town of Rush, 80 N. Y. 302 449 V. West, 164 N. Y. 510 292 Rochester Wliite Lead Co. v. Roch- ester, 3 N. Y. 463 549, 574, 615 Rock V. Rhinehart, 88 la. 37 423 Rogers v. Burhngton, 3 Wall. 654 132, 373 Rollins V. Lake Co., 34 Fed. Rep. 845 398, 399 Roosevelt v. Draper, 23 N. Y. 318 113 Ross V. Madison, 1 Ind. 281 609 Rowland v. City of Gallatin, 75 Mo. 134 560, 561 Royal British Bank v. Torquand, 6 Ell. & Bl. 327 483, 488 Ruggles V. Collier, 43 Mo. 353 276 RuMFORD School Dist. v. Wood, 13 Mass. 193 2, 535 Russel V. Reed, 27 Pa. St. 170 24 Russell V. Hallett, 23 Kan. 276 234 RtrssELL V. Men of Devon, 2 T. R. 667 5.30, .536, 577, 578, 601, 671 Russell v. Tacoma, 8 Wash. 1.56 628 Rutter V. WTiite, 204 Mass. 59 200 Ryan v. City of New York, 177 N. Y. 271 135 Ryce V. City of Osage, 88 la. 5.58 234 Rylands v. Pinlcerman, 63 Conn. 176 212 S. Sackett v. City of New Albany, 88 Ind. 473 382, 386 Safety Insulated Wire & Cable Co. V. City of Baltimore, 13 C. C. A. 375 463 St. Joseph's Township v. Rogers, 16 WaU. 644 484 St. Louis V. Allen, 13 Mo. 400 22 V. Russell, 9 Mo. 507 24 V. Shields, 62 Mo. 247 230 V. W. U. Tel. Co., 149 U. S. 465 315 St. Louis, City of, v. Fitz, 53 Mo. 582 268 V. The Maggie P., 25 Fed. 202 465 V. W. U. Tel. Co., 148 U. S. 93 436 St. Louis G. L. Co. v. St. Louis, 46 Mo. 121 34 St. Paul, City of, v. Colter, 12 Minn. 41 265 V. Stoltz, 33 Minn. 233 424 St. Peter v. Denison, 58 N. Y. 416 558 St. Tammany Waterworks v. New Orleans Waterworks, 120 U. S. 64 428 Salamanca Township v. Wilson, 109 U. S. 627 81 Salem v. Maynes, 123 Mass. 372 274, 281 Saline County, Com'rs of, v. An- derson, 20 Kan. 298 238 Salt Lake City v. Hollister, 118 U. S. 256 561 Samis v. King, 40 Conn. 298 239 Sammons v. City of Gloversville, 175 N. Y. 346 612 Sanford v. Augusta, 32 Me. 536 577 San Francisco Gas Co. v. City of San Francisco, 9 Cal. 453 463, 644, 646 Santa Clara, etc. Lumber Co. v. Hayes, 76 Cal. 387 236 Saunders v. Haynes, 13 Cal. 145 160 Savage v. Rix, 9 N. H. 265 369 Savannah v. Scarborough, 71 Me. 267 650 Savannah, City of, v. Kellv, 108 U. S. 184 " 375 Savings Bank v. Winchester, 8 Allen, 109 518 Sawyer v. Corse, 17 Grat. 241 610 V. Northfield, 7 Cush. 490 536 Schaffor v. Cadwallader, 36 Pa. 126 60 Schneider v. Menasha, 118 Wis. 298 413 School Directors v. School Direc- tors, 135 111. 464 73 School District v. Bennett, 52 Ark. 511 529 V. Richardson, 23 Pick. 62 33 V. Tapley, 1 All. 48 33 TABLE OF CASES. XXIU 23 22 190 30 614 575 560 616 School Society v. School Society, 14 Conn. 469 Schools (The) v. Tatman, 13 111. 27 Schuyler County, Supervisors of, V. People, 25 111. 183 Scituate v. Weymouth, 108 Mass. 128 Scott V. Mayor, etc. of Manches- ter, 2 H. & N. 204 538, 576 Scowden's Appeal, 96 Pa. 422 94 Seaman v. Mayor, etc., of N. Y., 80 N. Y. 239 Sears v. The Turnpike, 7 Conn. 9 Seele v. Deering, 79 Me. 343 Seifert v. City of Brooklyn, 101 N. Y. 136 Seifred v. Penna. R. R. Co., 206 Pa. 399 287 Seymour v. Over-River School Dist., 53 Conn. 502 212 Shannon v. O'Boyle, 51 Ind. 565 444 V. Portsmouth, 54 N. H. 183 218, 238 Shapleigh v. City of San An- GELO, 167 U. S. 646 69, 78 Sharon v. Smith, 180 Mass. 539 347 Sharpless v. Mayor of Philadel- phia, 21 Pa. 147 Sheehan v. IMayor, 74 N. H. 445 Shelbourne v. Yuba, 21 Cal. 113 Shelby County v. Railroad, 5 Bush, 228 Sherbourne v. Yuba County, 21 Cal. 113 Sherburne v. Portsmouth, 72 N. H. 539 438, 442 Sherlock v. Village, 68 111. 530 426 Sherman County v. Simons, 109 U. S. 735 504 Shull V. New BkdsaU Co., 15 S. D. 8 559 Sibley v. Lumbering Assoc, 93 Me. 399 651 Sikes V. Hatfield, 13 Gray, 353 247, 541 Sill V. Corning, 15 N. Y. 197 24, 49 Simon t^. Northup, 27 Or. 487 116 Simpson v. Denison, 10 Hare, 51 321 V. Hotel Co., 8 H. L. Cas. 712 465 Sinclair v. Mayor of Fall River, 198 Mass. 248 203 Sioux Falls v. Kirby, 6 S. D. 62 560 Siren, The, 7 WaU. 152 568, 569 Slark V. The Highgate Archway Company, 5 Taunt. 792 369, 370 Slaughter v. Mobile County, 73 Ala. 134 68 Slaughter House Cases, 16 Wall. 36 274 Small V. Damdlle, 51 Me. 359 647 Smith V. Lynch, 29 Oh. St. 261 231 97 219 583 26 630 Smith V. Mayor, etc, 6 N. Y. Sup. Ct. 685 549 V. Mayor, etc, of Nashville, 12 S. W. 924 450 V. Rochester, City of, 76 N. Y. 506 560, 594 Smoot V. Wetumpka, 24 Ala. 112 609 Snider v. St. Paul, 51 Minn. 466 580 Solomon, City of, v. Hughes, 24 Kan. 211 198 Somers v. State, 3 S. D. 321 198 Soon Hing v. Crowley, 113 U. S. 703 274 Southampton & I. Bridge v. South- ampton, 8 E. & B. 801 125 South Carolina v. United States, 199 U. S. 437 645 South Park Com'rs v. Dunlevy, 91 111. 49 11 Soutter V. City of Madison, 15 Wis. 30 50 Spangler v. Jacoby, 14 111. 297 190 Spaulding v. Lowell, 23 Pick. 71 240, 246, 269, 421, 426 V. Peabody, 153 Mass. 129 337 Speir V. City of Brooklyn, 139 N. Y. 6 597 Spelman v. Portage, 41 Wis. 144 635 Spier V. School Directors, 50 Pa. 163 334 Spilman v. City of Parkers- burg, 35 W. Va. 605 387 Sprague v. Minon, 195 Mass. 581 276 Springfield Fire, etc. Ins. Co. V. Village of Keeseville, 148 N. Y. 46 622 Springfield Furniture Co. v. School Dist. No. 4, 67 Ark. 236 529 Squiers v. Neenah, 24 Wis. 588 642 Stackhouse v. La Fayette, 26 Ind. 17 609 State V. Auditor, 7 Oh. St. 333 220 State v. Boardman, 93 Me. 73 268 State V. Brennan, 49 Oh. St. 33 221 V. Bruckhauser, 26 Minn. 301 426 V. Burhngton, 36 Vt. 521 537 V. Carr, 5 N. H. 367 230 V .Carroll, 38 Conn. 449 230, 239 V. City of Eau Claire, 40 Wis. 533 465, 466 V. Clark, 52 Mo. .508 238 V. Common Council, 53 Minn. 238 218 V. Copeland, 74 Minn. 371 426 V. Co\angton, 29 Oh. St. 102 100 V. Curran, 7 Eng. (Ark.) 321 19 V. Dart, 57 Minn. 261 226 V. Ferguson, 31 N. J. L. 107 167 V. Foster, 32 Kan. 14 224 V. Giles, 1 Chand. 112 160 V. Green, 37 Oh. St. 227 176 State v. Haben, 22 Wis. 660 105, 88 XXIV TABLE OF CASES. State V. Hammond, 40 Mmn. 43 V. Hawkins, 44 Oh.St. 98 V. Herod, 29 la. 123 V. Hewitt, 3 So. D. 187 V. Hoglan, 64 Oh. St. 532 V. Howard, 72 Me. 459 V. Hunter, 38 Kan. 578 State v. Jennings, 57 Oh. St. 415 State V. Jersey City, 25 N. J. L. 536 State v. Johnson, 114 N. C. 846 State V. Kolsem, 130 Ind. 434 V. Lake Koen Co., 63 Kan. 394 V. Leiber, 11 la. 407 State v. Mackie, 74 Atl. 759 State V. Mahner 43 La. Ann. 496 V. McDaniel, 22 Oh. St. 254 V. Milne, 36 Neb. 301 V. Milwaukee, City of, 25 Wis. 122 V. Nelson, 66 Minn. 166 V. North, 42 Conn. 79 V. Paterson, 5 Vroom, 163 V. Powers, 69 Minn. 429 V. Priester, 43 Mum. 373 V. Richmond, 26 N. H. 232 V. Rogers, 22 Or. 348 State v. Rose, 74 Kan. 262 V. St. Louis County Court, 34 Mo. 546 101, State V. Schuchardt, 42 La. Ann. 49 V. Seavey, 22 Neb. 454 V. Shawnee County, 28 Kan. 431 — V. Smith, 35 Neb. 13 — V. Smith, 14 Wis. 497 — V. Spaulding, 102 la. 639 — V. State Medical Examining Board, 32 Minn. 324 — V. Stevens, 21 Kan. 210 — V. Teal, 72 Minn. 37 — V. Tenant, 110 N. C. 609 — V. Trenton, 36 N. J. L. 79 — V. Town of Winter Park, 25 Fla. 371 V. Walbridge, 62 Mo. App. 162, 69 Mo. App. 657 — V. Walton, 62 Me. 106 V. Welsh, 109 la. 19 225, State v. Williams, 68 Conn. 131 V. WiLLi.\5is, 110 Tenn. 549 State V. Wilson, 30 Kan. 661 V. Woodbury, 35 N. H. 230 V. Woodward, 23 Vt. 92 State Bank of Oliio v. Knoop, 16 How. 369 132, State Centre v. Barenstein, 66 la. 249 272, State ex rel. v. Dering, 84 Wis. 585 State ex rel. v. Walbridge, 119 Mo. 383 250, State ex rel. Carondelet v. New Or- leans, 30 La Ann. 129 426 220 315 219 218 589 100 219 226 280 100 133 199 211 272 224 238 50 283 212 276 426 185 217 197 223 100 275 101 133 219 160 213 426 73 426 272 430 13 219 328 226 114 172 224 368 445 323 275 272 251 664 State ex rel. Carriere v. City, 36 La. Ann. 687 664 State ex rel. De Leon v. City, 34 La. Ann. 477 664 State ex rel. Geake v. Fox, 158 Ind. 126 15, 100 State ex rel. Johnson v. Brown, 111 Minn. 80^ 424 State ex rel. Kennelly v. Jer- sey City, 57 N. J. L. 293 261 State ex rel. Marchand v. City OF New Orleans, 37 La. Ann. 13 662 State ex rel. Moore v. City, 32 La. Ann. 726 664 State ex rel. Wis. Tel. Co. v. Janes- ville St. R. Co., 87 Wis. 72 314 V. Sheboygan, 111 Wis. 23 313, 315, 316 State ex rel. Wood v. Schweickardt, 109 Mo. 496 630 State Railroad Tax Cases, 92 U. S. 575 539 Steckert v. East Saginaw, 22 Mich. 104 188 Steele v. Deering, 79 Me. 343 652 Stetson V. Kempton, 13 Mass. 272 241, 242, 244, 246, 317, 323, 327, 533 Steubenville v. Culp, 38 Oh. St. 18 238 Stoddard v Winchester, 157 Mass. 567 588 Stone V. Charlestown, 114 Mass. 214 123 Strahan v. Malvern, 79 la. 454 420 Strauss, Matter of, 44 App. Div. 509 343 Strauss v. Pontiac, 40 111. 301 34 Street Railway Co. v. Covington, 9 Bush, 127 302 Strock v. East Orange, 77 Atl. Rep. 1051 440 Strock V. East Orange, 77 N. J. L. 382 440 Strosser v. City of Fort Wayne, 100 Ind. 443 13 Stuhr V. Curran, 44 N. J. L. 181 239 Sugar V. Monroe, 108 La. 677 420 Sullivan v. Holvoke, 135 Mass. 273 556, 588 Sun Printing & Publishing Assoc. V. Mayor, etc. of N. Y., 152 N. Y. 257 345 Supervisors v. Schenk, 5 Wall. 784 483 Supervisors of Rock Island v. U. S. ex. rel. State Bank, 4 Wall. 435 657, 535 SuTLiFF V. Lake County Commis- sioners. 147 U. S. 230 495, .506, 508 Sutton V. Clarke, 6 Taunt. 29 533 Swain v. Seamens, 9 Wall. 254 47 Swift V. Falmouth, 167 Mass. 115 337 Swindell v. State, 143 Ind. 153 178 TABLE OF CASES. XXV Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 Wash. St. 316 Taggart v. Fall River, 170 Mass. 325 Worcester, 123 ]\Iass. Taintor v. 311 Takoma v Tappan y Lillis, 4 Wash. 797 School District, 44 Mich. 500 Tash V. Adams, 10 Cush. 252 246, Taxpayers v. New Orleans, 33 La. Ann. 568 Taylor v. City of Fort Wayne, 47 Ind. 274 ». Peckham, 8 R. I. 349 Tebbetts v. Dowd, 23 Wend. 379 Ten Eyck v. Delaware & R. C. Co., 3 Harr. (X. J.) 200 Terrett v. Taylor, 9 Cr. 43 Texarkana Gas & Electric Co. V. Texarkana, 123 S. W. 213 Thacher v. Miller, 13 Mass. 270 Thayer v. Boston, 19 Pick. 511 576, 581, 603, Thomas v. Richmond, 12 Wall. 349 Thompson v. Abbott, 61 Mo. 176 Thompson v. Allen County, 115 U. S. 550 Thompson v. Moran, 44 Mich. 602 Thompson NA^^GATION Co. v. City of Chicago, 79 Fed. 984 Thomson v. City of Boonville 61 Mo. 283 V. Elton, 109 Wis. 589 Thorndike I'. Camden, 82 Me. 39 Thurston v. Clark, 107 Cal. 285 Tindley v. Salem, 137 Mass. 171 125, 556, 589, 630, Tioga Railroad v. Blossbm-g & Corning Raiboad, 20 Wall. 137 Tisdale v. Norton, 8 Met. 292 Toledo, Town of, v. Edens, 59 la. 352 Toledo, Wabash, & W. Ry. Co. v. City of Jackson\'ille, 67 111. 37 Torrent v. Common Council of Muskegon, 47 Mich. 115 Traction Co. v. EUzabeth, 58 N. J. L. 520 Train v. Boston Disinfecting Co., 144 Mass. 523 Tr.\'\'elers' Insurance Com- pany V. Johnson City, 99 Fed. 663 Tremain v. Cohoes Co., 2 Comst. 163 Trenton Horse Railroad Co. v. Trenton, 24 Vroom, 132 Trester v. Sheboygan, 87 Wis. 496 Trumbo v. People, 75 III. 561 463 589 627 339 204 327 665 13 537 344 129 88 433 172 538, 642 515 47 673 124 566 560 413 326, 469 225 124, 631 539 577 34 265 354 309 274 524 558 262 414 230 Trustees, etc., v. Mayor, etc., 33 N. J. L. 13 452 Trustees of Schools v. Cowden, 240 111. 39 74 Trustees of Schools v. Tatman, 13 111. 27 75 Tugman v. City of Chicago, 78 lU. 405 265 Tuttle v. Polk, 92 la. 433 403 Twyman v. Board of Council of the City of Frankfort, 117 Ky. 518 592 U. Ukiah V. Ukiah W. & I. Co., 142 Cal. 179 644 Union Depot & Railroad Co. v. Smith, 16 Colo. 361 355, 365 Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 51 Fed. 309 465, 466 Union Pacific R. R. v. York Co., 10 Neb. 612 ^ 423 United States v. Hartwell, 6 Wall. 385 213, 225 V. Raikoad, 17 WaU. 322 42, 132, 540 V. The Malek Adhel, 2 How. 210 567, 569 United States Bank v. Dandridge, 12 Wlieat. 70 518, 519 United States Bank v. Kendall, 179 Fed. 914 80 University of Maryland v. Williams 9 G. & J. 365 129 Uppington v. New York, 165 N. Y. 223 550 Valparaiso, City op, v. Gardner, 97 Ind. 1 381 Vancoxjver v. Wintler, 8 Wash. 378 195 Vandercook v. Williams, 106 Ind. 345 235 Vandine, Petitioner, 6 Pick. 187 252, 260, 589 Van Hostrop v. Madison City, 1 Wall. 291 484 Van-Orsdale v. Hazard, 3 Hill, 243 168 Venice v. Murdock, 92 U. S. 494 506 Vidal V. Girard, 2 How. 61 411 Milage of Lewisville v. Webster, 108 111. 414 281 Vincennes, Citv of, v. Citizen's Gaslight Co.,l32 Ind. 114 126, 463 Vincent v. Nantucket, 12 Cush. 103 347, 349 Virginia v. The Justices, 2 Virginia Cases, 9 658 VoN Hoffman v. Quincy, 4 Wall. 535 659, 49, 68, 664, 670 XXVI TABLE OF CASES. Von Schmidt v. Widber, 105 Cal. 151 427 Voss V. Waterloo Water Co., 163 Ind. 69 408 W. Wade V. Oakmont Boro., 165 Pa. 479 407 V. Richmond, IS Gratt. 583 23 Wagner v. City of Rock Island, 146 111. 139 463 Waite V. Santa Cruz, 184 U. S. 302 510 Wakefield v. New-port, 62 X. H. 624 545 WaLCOTT v. iNHABriANTS OF Sw-.-uiPSCOTT, 1 Allen, 101 540 Waldron v. City of Ha\'erhill, 143 Mass. 582 555, 588 Walker v. Swampscott, 1 All. 101 581 WaUdey v. City of Muscatine, 6 WaU. 481 674 WaUa Walla City v. WaUa WaUa Water Company, 172 U. S. 1 428 Walsh V. Mayor, etc. of New York, 113 N. Y. 142 379 Waltham, Towti of, v. Kemper, 55 111. 346 11 Wardlow v. Mayor of New York, 19 N. Y. Supp. 6 225 Waring v. Mayor, 24 Ala. 701 24 Warren v. Charlestown, 2 Gray, 104 19 V. Lyons, 22 la. 351 88 V. Alayor, etc., of Charles- towTi, 2 Gray, 84 322 Washburn Co. v. Thompson, 99 Wis. 585 416 Washen v. Bullitt County, 110 U. S. 558 117 Waters v. Bon\^ouloir, 172 Mass. 286 336 Wa}'ne Coimty v. Benoit, 20 Mich. 176 238 Webb V. Mayor of New York, 64 How. Pr. 10 124 Webster v. Douglas Co., 102 Wis. 181 413 V. Harwinton, 32 Conn. 131 116 Weet V. Brockport, 16 N. Y. 161 144, 558, 604, 609, 610, 613 Weightmanv. Washington, 1 Black, 39 539, 610 Weismer v. Village of Douglas, 64 N. Y. 91 346 Weitz V. Ind. Dist., 79 Iowa, 423 419 Welch V. Ste. Gene\'ieve, 1 Dill. 130 81 Welles v. Battelle, 11 Mass. 477 170 Wells V. City of Weston, 22 Mo. 384 104 Welsh V. WUson, 101 N. Y. 254 431 Wentworth v. WTiittemore, 1 Mass. 471 383 Westberg v. Kansa.s, 64 Mo. 493 238 Westbrook v. Deering, 63 Maine, 231 327 West Chicago Park Commis- sioners V. Chicago, 152 111. 392 8 West Chicago Park Com'rs v. Weston U. T. Co., 103 111. 33 11 Western College of Medicine v. City of Cleveland, 12 Ohio St. 375 619 Western S. F. Soc. v. City of Phila- delphia, 31 Pa. 175 50, 122, 124, 456, 538, 646 Western U. Tel. Co. v. Philadelphia (Pa.), 21 Am. & Ang. Corp. Cases, 40 313 Westervelt v. Gregg, 12 New York, 209 671 West Hartford, Town of, v. Board of Water Com'rs, 44 Conn. 360 449 Weston V. City of Sj-racuse, 17 N. Y. 110 383 West Roxbury v. Stoddard, 7 AJlen, 158 535 Weymouth & B. F. Dist. v. County Com'rs, 108 Mass. 142 123 Wheeler v. City of Cincinnati, 19 Ohio St. 19 618 Wheeler v. Gil.sxjm, 73 N. H. 429 545 ^^^leeler v. Phila., 77 Pa. 338 456 V. Troy, 579 V. Worcester, 10 Allen, 591 537 ^^^leelock V. Lowell, 196 Mass. 220 203 White V. Franklin Bank, 22 Pick. 181 515 V. PhiUipston, 10 Met. 108 536, 541 V. Town of Stamford, 37 Conn. 586 422 \Miitier v. Sanborn, 38 Me. 32 33 WTiitmore t'. Orono Pulp & Paper Co., 91 Me. 297 599 ^Tiitney v. Stow, 111 Mass. 368 123, 127 Whitson V. The City of Franklin, 34 Ind. 392 277 Widington's Case, 1 Lev. 23 166 Wilcox V. McCleUan, 185 N. Y. 9 429 V. People, 90 111. 186 11 Wild v. Paterson, 47 N.J. L. 406 620 Wilde V. New Orleans, 12 La. Ann. 15 642 Willard v. Killingworth, 8 Conn. 247 185, 341 V. NewburjT)ort, 12 Pick. 227 241, 242, 246 Williams v. Da^^dson, 43 Tex. 1 372 V. Eggleston, 170 U. S. 304 43, 132 V. Gloucester, 148 Mass. 256 202 V. Grand Rapids, 59 Mich. 51 7 Williamsport v. Commonwealth, 84 Pa. St. 487 11 TABLE OF CASES. XXVU Willimantic School Society v. First School Society, 14 Conn. 457 30 Wilson V. Board of Trustees, 133 111. 443 39 - — V. Edmonds, 24 N. H. 517 331 V. Mineral Point, 39 Wis. 160 642 Wilson v. Mitchell, 17 S. D. 515 558 Wilson V. Salamanca, 99 U. S. 499 506 Winbigler v. Los Angeles, 45 Cal. 36 537, 644 Windfall Mfg. Co. v. Patterson, 148 Ind. 414 599 Windham v. Portland, 4 Mass. 389 23, 535 Wineburgh Advertising Co. v. Murphy, 195 N. Y. 126 277 Winegar v. Roe, 1 Cow. 258 168 Winona v. School District, 40 Minn. 13 33, 34 Winthrop v. New England Choco- late Co., 180 Mass. 464 275 Wisconsin Telephone Company V. Milwaukee, 126 Wis. 1 312 Wis. Tel. Co. V. Oshkosh, 62 Wis. 32 313, 315, 316 Wistar v. Philadelphia, 80 Pa. St. 505 266 Wixon V. Newport, 13 R. I. 454 651 Wolff V. District of Columbia, 196 U. S. 152 432 V. New Orleans, 103 U. S. 358 68, 75, 664 Wood V. Cutter, 138 Mass. 149 203 Wood V. Milton, 197 Mass. 531 202 Woodlawn Cemetery v. Everett, 118 Mass. 354 128, 281 Woodruff V. Catlin, 54 Conn. 277 117 Woodward v. Boston, 115 Mass. 81 650 Worcester v. Western R. R., 4 Met. 564 129 V. Worcester S. Ry., 196 U. S. 539 43, 44 Worden v. City of New Bedford, 131 Mass. 23 632, 124, 420, 421, 465, 651 Workman v. New York, 180 U. S. 552 569 Wormington v. Pierce, 22 Ore. 606 395 Wrought Iron Bridge Co. v. Board of Com'rs of Hendricks County, 48 N. E. 1050 520 V. Town of Attica, 119 N. Y. 204 344 Wyatt v. Rome, 105 Ga. 312 585 Yarmouth v. Skillings, 45 Me. 141 Yick Wo V. Hopkins, 118 U. S. 356 Yocum V. Hotel St. George Co., 18 Abb. [N. C] 340 Yorty V. Paine, 62 Wis. 154 Young V. Clarendon Township, 132 U. S. 340 22, 24 276 297 231 373 CASES ON MUNICIPAL COKPORATIONS. CHAPTER I. THE NATURE OF MUNICIPAL CORPORATIONS. Section I. — Distinction between Municipal Corporations and .^^j^ ^'^'^'^^'^^^ other Corporations. »^ <^>^^i!r^^^ CUDDON V. EAST WICK. ur-***^*^ *^V<>^*^ 1704. 1 Salk. 192. ^ ^^^•-^PON a habeas corpus^ was returned an action of debt for the penalty ^^ of a by-law made by the comraon council of the city of London. The '»^**''^ by-law was, that whereas the company and fellowship of porters had been time out of mind a company and fellowship, it was ordained, that -^x. they should still remain and continue forever a company and fellowship, and that no master of any boat, &c. from place to place, &c. should \ unload or send on shore any goods, but by such persons as were free of the said company : to which it was objected, 1st, That the City of ^ ' London could not make a corporation. 2dly, That a corporation could not make a by.law to bind strangers, unless founded on public conven- ience. Et per GM,r. The city of London cannot make a corporation, for that can only be created by the crown ; but this is only a frater- nity, not a cor poration, and a corporation may make a fraternity! AS corporation is properly an investing the people of the place with the / local go vernment there of, and therefore their law shall bind strangers ; } but a fraternity is some people of a place united together, in respect of a mystery and business, into a company, and their laws and ordi- nances cannot bind strangers, for they have not a local power or government. 2 INHABITANTS OF SCHOOL DISTRICT IN KUMFORD V. WOOD. | INHABITANTS OF THE FOURTH SCHOOL DISTRICT IN RUMFORD V. WOOD. 1^^'^^'*^ '^^-^ 1816. 13 Mass. 193.1 €not bodies politick and corporate, with the general powers of corporations, must be admitted ; and the reasoning and authorities, advanced to shew this defect of power, are conclusive. The same may be said of towns and other municipal societies, which, although recognized by various statutes and by immemorial usage, as persons or aggregate corporations, with precise duties which may be 1 Arguments omitted. — Ed. METROPOLITAN RAILROAD V. DISTRICT OF COLUMBIA. 3 enforced, and privileges which may be maintained, by suits at law; are yet deficient in many of the powers incident to the general charac- ter of corporations. They may be considered under ou r i nstitutions as qua corporation s ; with limited powers coextensive with the duties imposed upon them By statute or usage: but restrained from a general use of the authority, i y rt^^vi-., which belongs to these metaphy sicaLjJersons by the common law. The i. same maj' be said of all the numerous corporations, which have been from time to time created by various acts of the legislature : all of them enjoying the power, which is expressly bestowed upon them ; and perhaps, in all instances where the act is silent, possessing by necessary implication the authority, which is requisite to execute the purposes of their creation. They differ in character also from those corporations, which exist at. common law, in some particulars. It is not necessary that our mun i-1 cipal corporations should act under seal, in order to bind themselves, ! or o bligate others to them. A vote of the body is sufficient for this purpose : and this mode has prevailed with the proprietors of common and undivided land, even in the disposition of their real property, contrary to the general provision of law, respecting the transfer of real estate. It will not do, therefore, to apply the strict principles of law respecting corporations, in all cases, to these aggregate bodies, which are created by statute, in this commonwealth. By the several statutes, which have been passed respecting school districts, it is manifest that the legislature has supposed, that a divi- sion of towns, for the purpose of maintaining schools, will promote the important object of general education : and this valuable object of legislative care seems to require, in construing their acts, that a liberal view should be had to the end intended to be effected. Respondeas ouster awarded. ^-■^ METROPOLITAN RAILROAD v. DISTRICT OF COLUMBIA, ^uf.^, ^tu^:, ^^^"^ 1889. 132/7.5.1. if ^i'iff/ •^' t>..vr^ Bradley, J.^ . . . It is contended by the plaintiff that it (the $^oJh tXj. w^J:e=> ^-a'^wvi-^.'n '* ^"^^-^.^^•'M^ (i^ViiU^3_ di^»lt^^C'^^ ort^^r '-'"-•fin- «• >>-*^.| municipal corporation. While the settlement of this question is pcr- li 1ki|)S not of controlling importance, i t may aid somewhat in the solution Pl of some of the prop(jsitions presented for our consideration in this case, and we will therefore take the time to consider it hiielly. As we liave already seen, by the act of February 27, 18G9, under which the commissioners were originally organized, they were declared to be a body politic and corporate, and were afterwards 8[)oken of in tlie act as a "corporation," and they were endowed with the usual attributes of a corporation, viz. that of peri)etual succession, the power to sue and to ])e sued, to plead and be impleaded, to have a common seal, and they were vested, in general terms, witli all the powers pecessary for the puri)Oses of the act. Among the powers S})eci(ically given were the power to make and enforce ordinances; to ai)poiiit and employ a police force ; to levy taxes for muTTtfTpal pur- poses; to actpiire, by purchase, condemnation or otherwise, the lands necessary for the formation of parks, boulevards and ways ; to improve, beautify and maintain the same, and hold the title thereto in perpetu- ity, for the benefit of the inhabitants of the town of West Chicago and of the i)ublic, as public pi'omenade and ])leasurc grounds and ways, and to pay the cost and cxpens(\s th(>reby incurred by special assess- ments up(jn the propiirty deemed to be benefited thereby ; and it was further expressly provided, that in regard to its parks, boulevards and ways the board should possess all the power and authority C(;nf erred by law upon or possessed by the connnon coinicil of the city of Chicago in n^spect to the public s(|uares, places and streets of the city, but without power to sell, alien, mortgage or incumber the same. That, within the scope of the purposes for which it was created, the ^j^orporation possesses all the powers of a nnmicipal body does not jy^r^ seem to admit of serious doubt. And not only is this so, but it was • v-*^ • called into biung and its organization was ertected, not by mere act of g^r^*'^'^ the sovereign legislative will, but by the express assent of the i)cople over which its jurisdiction extends. As we have already seen, by the terms of the act of incorporation the question whether the act should take effect, and the i)ark board become thereby incorporated, was sub- mitted to the vote of the legal voters of the territory to be embraced within the park district, and oidy upon an alliriuative vote, expressing the voluntary consent of the people of the district, did the act become effectual or the incorporation take i)lace. Thc^ Park act did not create the corporation of its own force, but it had the elTect only of an en- abling act, under which the inhabitants of the district could orgaiiize_ themselves into a nnniicii)al corporation if they should sec; fit. The corporation therefore exists, not as a mere result ol' .m ixcrcise of the sovereign higislativo will, but by virtue of the voluntary action of the people composing it. WEST CHICAGO PARK COMMISSIONERS V. CHICAGO. 11 Municipal corporations, such as cities and villages incorporated under special charters or voluntarily organized under general incor- poration laws, are called into existence either at the direct solicitation or by the free consent of the persons composing them, >Ylnle quasi. municipal corporations, sometimes called involuntary cori)orationsT such as counties, etc , are only U>cal organizations, which, for the pur poses of civil administration, are invested with a few of the characterj islTcs'of corporate existence. They are local subdivisions of the State, created by the sovereign legislative i)owcr, of its own sovereign will and without any particular solicitation, consent or concurrent action of the people who inhabit them. Hamilton County v. 3li(/hds, 7 Ohio St. 109; Finch v. Board, etc., 80 id. 37; Askrir v. Jfale, 54 Ala. G39 ; Willianisport v. Commomvca/fh, 81 Pa. St. 187 ; Harris v. Board of jSupircisors, 105 111. 445 ; IloUenheck v. Winnehago Countu, 95 id. 148; Town of Waltham v. Krmpcr, 55 id. 84 C); 1 Dillon on Mun. ( orp. sec. 22, et seq.; 15 Am. & Eng. Ency. of Law, 954, and cases cited in notes. Applying the foregoing test, — a test which seems to be abundantly sustained by all the authorities, — it follows, logically and necessarily, that the corporation in (luestion falls within tiie class known as muni- cipal coriHM'ations, projierly so called, and not that of quasi or invohni- tary municipal corporations. But our attention is ct^led to the fact that this court, in former decisions, in speaking of this identical cor- poration and other similar cor[)orations, has called them quasi nuinici- pal corporations. This was the case in People v. Salomon, 51 111. 37, Wlkox V. People, 90 id. 180, Wrst Chicago Park Comrs. v. Western Union Tel. Co. 103 id. 33, and Kedzie v. West Park Comrs. 114 id. 280. In other cases they are spoken of as municipal corporations, without any qualifying word. People v. Walsh, 90 111. 232 ; South Park Comrs. v. Duider;/, 91 id. 49. On examining these cases, how- ever, it will be found that in none of them was there any attempt to discriminate between municipal and quasi municipal corporations, nor any occasion for so doing. In People v. Salomon, in which the term quasi municipal corporations was first applied to these bodies, the question was as to the validity of the provisions of the Tark act vest- ing the park board with power to levy and collect taxes within the park district, and for the purposes of that question all that was neces- sary to determine was, that the park board was at least a corporate authority quasi municipal, and the subsequent cases in which the same tei'm has been applied to those corporations have simply followed the Salomon case, and none of them have been of such character as to call for an accurate discrimination in the use of terms. It in no way militates against the view that the park board is a municipal corporation properly so called, that the objects and powers of the corporation are limited to tlie matter of creating, improving, embellishing and maintaining, in peritetuity, a system of parks, boule- vards and ways. The powers of every municipal corporation are 12 WEST CHICAGO PAEK COMMISSIONEKS V. CHICAGO. necessarily more or less limited, and the scope and extent of their cor- porate powers, and their limitations, are always matters of legislative discretion. But the number and scope of the objects for which a pub- lic corporation is organized do not, and have never been held to, con- stitute the test by which to determine w^hether the organization is a municipal corporation properly so called, or only a qtiasi municipal' corporation. The park board, within the purview of its powers, is a corporation endowed with the same corporate functions, derived from the same source, and exercised in substantially the same way, as the city of Chicago. It is in no sense a corporation organized to exercise a portion of the municipal powers and functions of the city, and in subordination to it, but, within its own sphere, it has the same rank, and the exercise of its corporate powers is as exclusive of any power on the part of the city to interfere, as if the two corporations occupied wholly separate areas of territory. By the terms of the Park act, the park board is given " full and ex- clusive power " to govern, manage and control all parks, boulevards and ways authorized by the act. By the several supplemental acts under which the board acquired authority to take possession of and control certain existing parks in the town of West Chicago, and the streets adjacent to its parks, and other streets to be selected for the purpose lof forming connections between its parks and other portions of the city, those parks and streets were transferred from the jurisdiction of the city of Chicago, and were placed under the exclusive power and control of the park board, the same as the parks and boulevards orig- inally laid out and improved by it. It follows that the power of the park board over all these parks, boulevards and streets, for the pur- poses prescribed by these statutes, is plenary, while that of the city is wholly excluded. And this exclusion, so far as it relates to any power on the part of the city to govern, manage, control or interfere with these parks, boulevards and streets as such, is as complete as it would have been if the parks, boulevards and streets had been wholly with- drawn from the territorial limits of the city. Indeed, the legal effect of the various park acts would seem to be to take them out of the ter- ritorial jurisdiction of the city, so that, so far as the power of the city in relation to them is concerned, the corporate organization of the city is practically dissolved. It is a well recognized principle of law, that there cannot be at the same time, within the same territory,, two distinct municipal corpora-" tions, exercising the same powers, jurisdiction and privileges. 1 Dil- lon on Mun. Corp. (-ith ed.) sec. 184. In Wilcox on Municipal Corporations, 27, it is said: "A corporation may be created in any place where there is not an existing corporation for municipal govern- ment, even where there has formerly been one, if it be now dissolved. But there cannot, at the same time, be two corporations in the same place, having the same or similar powers, privileges and jurisdiction." So iu Grant on Corporations, 18j the rule is laid down as follows : vi\ CHAPTER II. EXTERNAL CONSTITUTION. Section I. Creation, Alteration and Dissolution. ^^*^ ■ **n^-:p, BERLIN V. GORHAM. \^ ^ tftyTl**^ 1856. 34 New Hampshire, 266} '" ^^*^i^ 'i^ A^ssnivTPSTT . to recover for supplies furuished for the support of '^' Jeremiah Harding, and his wife Nancy Harding, alleged to be paupers having their settlement in Gorham. The plaintiffs gave evidence that when Gorham was incorporated, on the 18th of June, 1836, Jeremiah Harding resided and had his home in the place which was incorporated into that town. The court ruled that if he so resided, he would thereby gain a settlement in Gorham, although no legal town meeting was holden, and though no town officers were chosen, before his removal. The defendant excepted to the foregoing ruling, and moved that the verdict returned for the plaintiffs be set aside. JSelloios ArO-^*^ *^ effectual until it is accepted by the corporators, governs also the case' \' Ali^T^ of public corporations, like towns. See A. & A. on Corp. 68. But there is no such rule in the case of public corporations of a municipal character. The acts of incorporation are imperative upon all who come within their scope. Nothing depends upon consent, unless the act is expressly made conditional. No man who lives upon the incorporated district can withdraw from the corporation, unless by_ a Teiiioval from the town ; and by the mere passage of the law the town is completeh' constituted, entitled to the rights and subjected to the duties and burdens of a town, whether the inhabitants are pleased or displeased. The Legislature has entire control over municipal cor- porations, to create, change, or destroy them at pleasure, and they are absolutely created by the act of incorporation, without the acceptance of the people, or any act on their part, unless otherwise provided by the act itself. The People v. Wren, 4 Scam. 269 ; Warren v. Mayor^ ttc. of Charlestown^ 2 Gray, 104 ; 3Iills v. Williams^ 11 Iredell, 558 ; The State v. Curran, 7 Eng. 321 ; Fire Department v. Kip^ 10 Wendell, 267 ; The People v. Morris, 13 Wendell, 337. Judgment on the verdict . ^-, t <5r» l/^^^jy^"^' XjJ^"^ chandler v. boston. V A>>''r4-)5j/^ 1873. U2 Massachusetts, 200y ^ Colt, J. The plaintiffs, residents and tax paj-ers in the town of ^ Brookiine, and claiming the privileges and immunities which the}- are 1 entitled to under a town government, allege by bill in equit}' that the i^ act providing for the annexation of that town to the cit}' of Boston, on ^ certain conditions, is a violation of the provisions of the second article .,,,-t''' of the amendments of the Constitution of this Commonwealth, b}' which power is given to the General Court on certain conditions to charter Y' cities. An injunction is asked to prevent proceedings by the city or town under the act, with a prayer that it may be declared void, and for general relief. To this there is a general demurrer for want of equity. The question whether this court has jurisdiction to grant the lelief asked in favor of private citizens against the contemplated alleged illegal action of these municipalities, was not argued and is not con* k*^ Bidered by us. 1 Statement and arguments omitted. — Ed. ^ r s ^ 20 LARAMIE COUNTY V. ALBANY COUNTY. B\- tlie ainendraent of the Constitution relied on, power is given to tlie General Court to erect city governments in an}' " corporate town or towns of tliis Commonwealtli," and to confer sucii powers as may be accessary for the government tliereof, witLi tlie proviso that " no sucli government shall be erected in any town not containing twelve thousand inhabitants, nor unless it be with the consent and on the application of a majority of the inhabitants of such town present and voting thereon." The bill alleges that the town of Brookline did not contain twelve thousand inJiabitants, and that the act in question was passed by the Legislature without first obtaining the consent and without the appli- cation of a majorit}' of the inhabitants of the town. The court are of opinion that the demurrer is well taken. _The control of. the, General Court over the territorial division of the State into cities, towns, and districts, unless controlled by some specific con^ stitutional limitation, must necessarily be supreme. It is incident to that sovereign power which regulates the performance of public and political duties. The rights and franchises of such corporations are granted only to this end, and they mav be modified and changed in their territorial limits as public convenience and necessity' require. The inhabitants do not derive private or personal rights under the act of incorporation ; the\' acquire no vested right in those forms of municipal government which exist under general laws in towns, as dis- tinguished from those b}' which the affairs of cities are regulated. If injiiriousl}' affected by legislative action upon these political relations, within constitional limits, the courts can afford no remedy. This power of the General Court it was not the intention of the amenclment in question to limit or affect. It has no application to the annexation, by the authorit}- of the Legislature, of a town or part of a "itown to a city alread\' existing. It has express reference to the erec- tion of a cit\' government in the place of a town government within the same town limits. "We are referred bj" the defendants to man}' acts of the Legislature annexing towns and parts of towns to cities, showing that this has been the uniform construction of the article in question. Demurrer sustained. LARAMIE COUNTY v. ALBANY COUNTY. ~S^Vv ^-^a 1875. 92 U. S. 307. ^^ (^ Appeal from the Supreme Court of the Territory of Wj'oming. -^l Jlfr. W. JR. Steele^ for the appellants. ^^ Mr. A. II. Jackson., contra. ^ Mr. Justice Clifford delivered the opinion of the court. Coua ties, cities, and towns are municipal corporations, created by the authority of the legislature ; and they derive all their'^DOwers from the source of their creation, except where the constitution of the State ^^^ LARAMIE COUNTY V. ALBANY COUNTY. 21 otherwise provides. Beyond doubt, the}' are, in general, made bodies politic and corporate; and are usually invested witli certain subordi- nate legislative powers, to facilitate tlie due administration of their own internal affairs, and to promote the general welfai-e of the munici- pality. The}' have no inherent jurisdiction to make laws, or to adopt governmental regulations ; nor can they exercise any other powers in that regard than such as are expressly or impliedly derived from their charters, or other statutes of the State. Trusts of great moment, it must be admitted, are confided to such municipalities ; and, in turn, they are required to perform many impor- tant duties, as evidenced by the terms of their respective charters. Authority to effect such objects is conferred by the legislature ; but it is settled law, that the legislature, in granting it, does not divest itself of any power over' the inhabitants of the district which it possessed before the cliarter was granted. Unless the Constitution otherwise provides, the legislature still has authority to amend the charter of such a corporation, enlarge or diminish its powers, extend or limit its boundaries, divide the same into two or more, consolidate two or more into one, overrule its action whenever it is deemed unwise, impolitic, or unjust, and even abolish the municipality altogether, in the legisla- tive discretion. Cooley on Const., 2d ed., 192. Sufficient appears to show that the complainant county was' first organized under the act of the 3d of January, 1868, passed by the legislature of the Territory of Dacotah, which repealed the prior act to create and establish that county. When organized, the county was still a part of the Territory, and embraced within its territorial limits all the territory now comprising the counties of Laramie, Albany, and Carbon, in the Territory of Wyoming, — an area of three and one-half degrees from east to west, and four degrees from north to south. Very heavy expenses, it seems, were incurred by the county during that year and prior thereto, greatly in excess of their current means, as more fully explained in the bill of complaint, which increased the indebted- ness to the sum of 628,000. Other liabilities, it is alleged, were also incurred by the authorities of the county during that period, which augmented their indebtedness to the sum of $40,000 in the aggregate. Pending these embarrassments, the charge is, that the legislature of the Territory passed two acts on the same day, — to wit, Dec. 16, 1868, — creating the counties of Albany and Carbon out of the western portion of the territory of the complainant county, reducing the area of that county more than two-thirds ; that, by the said acts creating said new counties, fully two-thirds of the wealth and taxable property previously existing in the old county were withdrawn from its jurisdiction, and its limits were reduced to less than one-third of its former size, without any provision being made in either of said acts that the new counties, or either of them, should assume any proportion of the debt and liabilities which had been incurred for the welfare of the whole before these acts were passed. 22 LARAMIE COUNTY V. ALBANY COUNTY. . r ...iJL, k f^rk\ P^J™6nt of the outstanding debt having been made hy the complain- ^"^J^^^ant count}-, the present suit was instituted in her behalf to compel the ■*^^'J^r^ inew counties to contribute their just proportion towards such indebted- ■^''^^'"^S-^^^ijess. Attempt is made to show that an equitable cause of action exists Jt/vJ-^"**^ in the case by referring to the several improvements made in that part of the Territory included in the new counties before the}- were incorpo- rated, and by referring to the great value of the property withdrawn from taxation in the old count}', and included within the limits of the newh'-created counties. Process was served, and the respondents appeared and filed separate demurrers to the bill of complaint. Hearing was had in the District J^/^XAC^ . Court of the Territor}', where the suit was commenced ; and the court ^f^A/^^^ entered a decree sustaining the demurrers, and dismissing the bill of jft cJ^ complaint. Immediate appeal was taken by the complainant to the Supreme Court of the Territory, where, the parties having been >j, ^.- again heard, the Supreme Court entered a decree affirming the . \,^>-0i decree of the District Court, and the present appeal is prosecuted CIj b}' the complainant. Two errors are assigned, as follows: (1.) That the Supreme Court erred in affirming the decree of the District Court sustaining the de- murrers of the respondents to the bill of complaint. (2.) That the Supreme Court erred in rendering judgment for the respondents. Corporations of the kind are properly denominated nn blic corpora- tions, for the reason that the}- are but parts of the machinery employed in carrying on the affairs of the State ; and it is well-settled law, tlfat the charters under which such corporations are created ma}' be changed, modified, or repealed, as the exigencies of the public service or the public welfare may demand. 2 Kent, Com., 12th ed., 305; Angell & Ames on Corp., 10th ed., sect. 31 ; Mc.Kim v. Odom^ 3 Bland, 407 ; St. Louis v. Allen^ 13 Mo. 400; The Schools v. Tatman^ 13 111. 27 ; 'Yarmouth v. SJcillmgs, 45 Me. 141. Such corporations are composed of all the inhabitants of the Terri- ^ L tory included in the political organization ; and the attribute of indi- .^^•'^ \ I viduality is conferred on the entire mass of such residents, and it may jrv*v>5^ i * ^'^ modified or taken away at the mere will of the legislature, according • C/^*tf-\i *^ ^^^ *^^'^ views of public convenience, and without any necessity for -jJL V . ' the consent of those composing the body politic. 1 Greenl. Ev., 12th ^^^^ ed., sect. 331. Corporate rights and privileges are usually possessed by such corpo- rations ; and it is equally true that they are subject to legal obligations and duties, and that they are under the entire control of the legislature, from which all their powers are derived. Sixty -five years before the ^ decree under review was rendered, a case was presented to the Supreme Court of Massachusetts, sitting in Maine, which involved the same principle as that which arises in the case before the court. Learned counsel were employed on both sides, and Pa'^sons was Chief Justice of the Court, and delivered the opinion. First he adverted to the rights LARAMIE COUNTY V. ALBANY COUNTY. 23 and privileges, obligations and duties, of a town, and then proceeded to say, "If a part of its territory and inhabitants are separated fron: it by annexation to another, or by the erection of a new corporation, the former corporation still retains all its propertj', powers, riglits, and privileges, and remains subject to all its obligations and duties, unless sora". new provision should be made b}- the act authorizing the separa- tion." Windhancv. Portland, 4 Mass. 389. Decisions to the same effect have been made since that time in nearly all the States of the Union where such municipal subdivisions are known, until the reported cases have become quite too numerous for citation. Nor are such citations necessary, as they are all one way, showing that the principle in this country is one of universal applica- tion. Concede its correctness, and it follows that the old town, unless the legislature otherwise provides, continues to be seized of all its lands held in a proprietary right, continues to be the sole owner of all its personal property, is entitled to all its rights of action, is bound b}' all its contracts, and is subject to all the duties and obli- gations it owed before the act was passed effecting the separation. Suppose that is so as applied to towns : still it is suggested that the same rule ought not to be applied to counties ; but it is so obvious that the suggestion is without merit, that it seems unnecessar}' to give it any extended examination. County of Richland v. County of Lavo- rence, 12 III. 8. Public duties are required of cx)unlies as well as of towns, as a part of the machinery of the State ; and, in order that they may be able to perform those duties, the}- are vested with certain corporate powers ; but tlieir functions are wholly of a public nature, and they are at all times as much subject to the will of the legislature as incorporated towns, as appears by the best text-writers upon the subject and the great weight of judicial authority. Institutions of the kind, whether called counties or towns, are the auxiliaries of the State in the important business of municipal rule, and cannot have the least pretension to sustain their privileges or their existence upon an}' thing like a contract between them and the legislature of the State, because there is not and cannot be any reci- procity of stipulation, and their objects and duties are utterlj' incom- patible with every thing of the nature of compact. Instead of that, the constant practice is to divide large counties and towns, and to consoli- date small ones, to meet the wishes of the residents, or to promote the public interests, as understood b}' those who control the action of the legislature. Opposition is sometimes manifested ; but it is ever3'where acknowledged that the legislature possesses the power to divide counties and towns at its pleasure' and to apportion the common property and the common burdens in such manner as to them may seem reasonable and equitable. School Society v. School Society^ 14 Conn. 469 ; Bridgf/ Co. V. East Hartford., 16 id. 172 ; Hampshire v. Franklin, 16 Mass. 76; North Hemsteady. Hemstead, 2 Wend. 109 ; Montpelier v. East ^ .£«^ 24 LARAMIE COUNTY V. ALBANY COUNTY. Montpelier, 29 Vt. 20; Sill v. Corning, 15 N. Y. 197; Peojyie v. Draper^ id. 549 ; Waring v. May or ^ 24 Ala. 701 ; Mayor v. 77*6 xS^aife, 15 Md. 376 ; Ashby v. Wellinyto?i, 8 Pick. 524 ; Baptist So. v. CancUa, 2 N. H. 20 ; Denton v. Jackson., 2 Johns. Cb. 320. Political subdivisions of the kind are always subject to the general 'aws of the State ; and the Supreme Court of Connecticut decided that 'he legislature of that State have immemorially exercised the power of Jividing towns at their pleasure, and upon such division to apportion ^he common property* and the common burdens as to them shall seem reasonable and equitable. Granhy v. Thurston., 23 Conn. 419 ; Yar- mouth V. Skilli?igs, 45 Me. 142; Langworthy v. Dubuque., 16 Iowa, 273 ; Justices' Opinion., 6 Cush. 577. Such corporations are the mere creatures of the legislative will ; and, inasmuch as all their powers are derived from that source, it follows that those powers may be enlarged, modified, or diminished at an}' time, without their consent, or even without notice. The}' are but subdivi- sions of the State, deriving even their existence from the legislature. Their officers are nothing more than local agents of the State ; and their powers ma}' be revoked or enlarged and their acts may be set aside or confirmed at the pleasure of the paramount authority, so long as private rights are not thereby violated. Mussel v. Meed., 27 Penn. St. 170. Civil and geographical divisions of the State into counties, town- ships, and cities, said Thompson, C. J., had its origin in the necessities and convenience of the people ; but this does not withdraw these munie- ip.al divisions from the supervision and control by the State in matters of internal government. Proof of that is found in the fact that the legislature often exercises the power to exempt property liable to taxa- tion, and in many other instances imposes taxes on what was before exempt, or increases the antecedent burdens in that behalf. It changes county sites, and orders new roads to be opened and new bridges to be built at the expense of the counties ; and no one, it is supposed, disputes the exercise of such powers by the legislature. Bur7is v. Clarion County, 62 Penn. St. 425 ; Peop)le v. Pinkney., 32 N. Y. 393 ; St. Louis V. Mussell, 9 Mo. 507. Old towns may be divided, or a new town may be formed from parts of two or more existing towns ; and the legislature, if they see fit, may apportion the common property and the common burdens, even to the extent of providing that a certain portion of the property of the old town shall be transferred to the new corporation. Drlstol v. iVeto Chester, 3 N. H. 521. In dividing towns, the legislature may settle the terms and conditions on which the division shall be made. It may enlarge or diminish their territorial liabilities, may extend or abridge their privileges, and may impose new liabilities. Towns, says Richardson, C. J., are public cor- porations, created for purposes purely public, empowered to hold prop- ertv, and invested with manv functions and faculties to enable them to answer the purposes of their creation. LARAMIE COUNTY V. ALBANY COUNTY. 25 There must, in the nature of things, be reserved, by necessary impli- cation, in the creation of such corporations, a power to modify them in such manner as to meet the public exigencies. Alterations of the kind are often required by public convenience and necessity; and we have the authority of that learned judge for saying that it has been the con- stant usage, in all that section of the Union, to enlarge or curtail the power of towns, divide their territory, and make new towns, whenever the convenience of the public requires that such a change should be made. Half a century ago, when that decision was made, the authority of the legislature to make such a division of a municipal corporation was deemed to be without doubt ; and the same court decided that the power to divide the property of a municipal corporation is necessarily incident to the power to divide its territory- and to create the new cor- poration. Darlington v. Ma>jo)\ 31 N. Y. 195 ; Clinton v. Railroad^ 24 Iowa, 475 ; Layton v. Nexo Orleans., 12 La. Ann. 516. Cases doubtless arise where injustice is done b}- annexing part of one municii):i! corporation to another, or b}' the division of such a corpora- fion and the creation of a new one, or b}' the consolidation of two or i ts^^C-\^ more such corporations into one of larger size. Examples illustrative^ of these suggestions may easily be imagined. (1.) Consolidation will work injustice where one of the corporations is largely in debt and the ; _r^^v- other owes nothing, as the residents in the non-indebted municipality ; must necessarilv submit to increased burdens in consequence of the ■ indebtedness of their associates. (2.) Like consequences follow where/ the change consists in annexing a part of one municipal corporation to another, in case the corporation to which those set off are annexed is greatly more in debt than the corporation from which thej' were set off. Hardships may also be suffered by the corporation from which a portion of its inhabitants, with their estates, ma}- be set off, in case the corporation is largely in debt, as the taxes of those who remain must necessaril}' be increased in proportion as the polls and estates within the municipalit\' are diminished. Even greater injustice may arise in cases where the legislature finds it necessary to circumscribe the jurisdiction of a county or town by dividing their territor}', and creating new counties or towns out of the territorj' withdrawn from their former boundaries. Legislative acts of the kind operate differently under different cir- cumstances. Instances ma}' be given where the hardship is much the greatest towards the new municipality, as where the great body of the property and improvements are left within the new boundaries of the old corporation. Other cases are well known where^the hardship is much greater towards the old corporation, as where the newly-created subdivision embraces within its boundaries all the public buildings and most of the public improvements and the most valuable lands. Cir- cumstances of the kind, with many others not mentioned, show beyond doubt that such changes in the subdivisions of a State often present 26 JOHNSON V. CITY OF SAN DIEGO. matters for adjustment involving questions of great delicac}' and difficult}'. Allusion was made to this subject b}' the Supreme Court of New Hampshire in the case to which reference has already been made. 3 N. H. 534. Speaking of the power to divide towns, the court in that case say that the power in that regard is strictly legislative ; and that the power to prescribe the rule by which a division of the property of the old town shall be divided is incident to the power to divide the territor}', and is iti its nature 2'>urely legislative. No general" rule can be prescribed by which an equal and just decision in such cases can be made. Such a division, sa}' the court in that case, must be founded upon the circumstances of each particular case ; and in that view the court here entirel}' concurs. Powers v. Commissioners of Wood County., 8 Ohio St. 290 ; Shelby County v. Railroad., 5 Bush, 228 ; Ohiey v. Harvey, 50 111. 455. Regulation upon the subject may be prescribed b}' the legislature ; but, if the}' omit to make any provision in that regard, the presumption must be that they did not consider that any legislation in the particular case was necessar}'. Where the legislature does not prescribe any such regulations, the rule is that the old corporation owns all the public propert}' withi n her new lim its, and is responsible for all debts con- tracted by her before the act of separation was passed. Old debts she must pay, without any claim for contribution ; and the new sub- division has no claim to any portion of the public propert}' except what falls within her boundaries, and to all that the old corporation has no claim. North Ilemstead v. Hemstead, 2 Wend. 134 ; Dil. on Mun. Corp., sect. 128; Wade v. Richmond., 18 Gratt. 583; Hiyginhotham V. Com. , 25 id. 633. Tested by these considerations, it is clear that there is no error in the record. Decree afirmed. ':|'*^., JOHNSON ET AL. V. CITY OF SAN DIEGO. ^< ^. 1895. 109 Ca/i>rma, 468.1 ~t^_'^ By virtue of the act of the legislature of March 19, 1889, and of a ''-^ vote at an election held thereunder, a portion of the territorv formerly '^'^-^^* embraced within the corporate limits of the cit}' of San Diego waa'^-.j-p excluded therefrom. The said act of._l,2S*^, as interpreted by the court,/ ^ also provided that the segregated territory (which was known as the^,^..^^ Coronado beach) should, after exclusion, be liable for its pro rata^^J/^. 3 original municipal corporation con-T?*'^ tracted prior to such exclusion. ^v* share of the indebtedness of the original municipal corporation con- In 1^3 (Statutes 1893, p. 536) the legislature passed an act pro"^^- * Statement ebridgeJ from opinion. Arguments omitted. —Ed. ■\ 1 ::^..J^ JOHNSON V. CITY OF SAN DIEGO. 27 viding for "the adjustment, settlement, and payment of any indebted- ness existing against any city or municipal corporation at the time of exclusion of territory tlierefrom and tlie division of pioperty thereof." Under this act, any territory which " has been or shall be " excluded from any municipal corporation shall not be subject to the payment of any indebtedness existing at the time of exclusion, if the court find that the value of the property belonging to said municipal corporation, and "vvTiich remains within the boundaries thereof after such exclusion, exceeds the value of municipal property' situated in such excluded ^ j terrltor}', and also exceeds the pro rata portion of the indebtedness \r^ '""^^ of the municipal corporation due from such excluded territory as rm,,2-/tj^ shown by the assessment made immediately preceding such exclusion. ]-%^UjJ> C Plaintiffs availed themselves of the pi'ovisions of this act to have the — a court determine what proportion, if anj', of the bonded indebtedness a of San Diego was properly chargeable against the excluded territory'. \ Under certain findings of fact, and in strict accord with the dictates s of the statute, the court adjudged that there was nothing due or to nch'^-^^ become due from the excluded territory to the city. ll- ^[> tJ^^^JuL 30 JOHNSON V. CITY OF SAN DIEGO. it cannot impair, these contracts must be in their nature private, although the public ma}' derive a common benefit from them, and the contracting cities are as to them measured by the same rules and entitled to the same protection as would a private corporation. The subject of such a contract, however, can never be a matter of munici- paTpolity or of civil or political power, for the legislature itself cannot surrender its supremacy as to these things and thus abandon its pre- rogatives and strip itself of its inherent and inalienable right of control. Of the cases so holding, either directly or impliedh', a few maj^ prof- itabl}' be mentioned. [The court here referred to Count]/ of Rich- land V. County of Laicrence, 12 111. 1 ; Perry County v. Conway County, 52 Ark. 430 ; Dunmore' s Appeal^ 52 Pa. State, 430 ; Layton V. N'ew Orleans^ 12 La. Ann. 515 ; and Mayor of Baltimore v. State^ 15 Maryland, 376.] Says Dillon on Municipal Corporations, fourth edition, section 189 : " But upon the division of the old corporation, and the creation of a new corporation out of a part of its inhabitants and territorj', or upon the annexation of part of another corporation, the legislature may provide for an equitable apportio7iment or division of the prop- erty and impose upon the new corporation, or upon the people and territory thus disannexed, the obligation to pay an equitable proportion of the corporate debts. The charters and co?2stituent acts of public and municipal corporations are not, as we have before seen, contracts, a7id they may he changed at the pleasure of the legislature, subject only to the restraints of special constitutional provisions, if any there ' be. And it is an ordinar}' exercise of the legislative dominion over such corporations to provide for their enlargement or division, and, incidental to this, to apportion their property and direct the manner in which their debts or liabilities shall be met and by whom. The opin- ion has been expressed that the partition of the property must he made at the time of the division of or change in the corporation, since other- wise the old corporation becomes, under the rule just above stated, the sole owner of the propert}', and hence cannot be deprived of it by a subsequent act of the legislature. But, in the absence of special constitutional limitations upon the legislature, this view cannot, per- haps, be maintained, as it is inconsistent with the necessary suprem- ac}' of the legislature over all its corporate and unincorporate bodies, divisions, and parts, and with several well-considered adjudications." To the same general effect are the cases of Ijnramie County v. ■j;^ . Albany Comity, supra ; Mount Pleasant y. Beckwith, supra ; Scituate \ V. Weymouth, 108 Mass._ 1_2_$ ; Willimantic School Society v. Fii'st School Society, 14 Conn. 457 ; Guilford v. Supervisors,!^ N. Y. 143. In this state the power of the legislature to make such subsequent adjustments was early declared in Peojde v. Alameda Coimty, supra. Alameda count}' was created out of the territory of Contra Costa county in 1853. At the time of the separation Contra Costa countj BROOMFIELD V. GLEX KIDGE. ol owed for a bridge which had lieen constructed upon the territor}' set apart to Alameda county. The original act made no provision for the payment of this indebtedness, which thus remained a charge against the old county. By two separate later acts the legislature provided for the apportionment of the debt, putting a part of the burden upon Alameda county. These acts were upheld as a proper exercise of legislative power. And, i-ndeed, it is not easy to see how the opposite view can be maintained. Since the legislative power, within constitutional limita- tions, is supreme in the matter ; since, in the first apportionment the people affected are entitled to no voice (except through their repre- sentatives), and since the act of the legislature is not in the nature of a contract, it cannot logically be held that the power has been exhausted by its first exercise. The right still remains to make such future adjustments as the equities may suggest. Nor in the operation of the act in question upon the city of San Diego can we perceive any hardship. It had at the time of the segre- gaii6n~six hundred thousand dollars, acquired while Coronado beach was a part of its territory, and partially acquired, doubtless, by tax- ation upon this land. All of this property it retains. All of the moneys evidenced bj' the bonded indebtedness were expended within its present territorial limits, and no dollar of it went to improve the excluded territor}'. Having all of the common propert}' and all of the fruits of the common debt, it is certainly not onerous or oppressive that it should be asked to pay for what has been expended for its exclusive benefit. In a certain sense, it is true that Coronado beach was also benefited by these expenditures. In the same sense San Mateo county is benefited b}* the public improvements of the cit}' and count}- of San Francisco, but it has never been asserted that for such benefits a sister county should be called upon to pa}'. The judgment and order appealed from are affirmed. Harrison, J., Temple, J. , Van Fleet, J. , Garoctte, J., and Beatty, C. J., concurred. f^' BLOOMFIELD v. GLEN RIDGE. 1896. 54 New Jersey Eguity, 276.'^ Bill in equity, by Inhabitants of the Township of Bloomfield against the Mayor and Council of the Borough of Glen Ridge ; praying for an injunction, restraining defendants from interfering with the complain- ant's sewers within the limits of the borough and from exercising any management over such sewers. The allegations of the bill are suflS- I'iently stated in the opinion. I">efendants demurred. 1 Statement abridged. — Ed. 52 BLOOMFIELD V. GLEN RIDGE. '^ .!-^ *1 George S. Hilton, for complainant. Joseph G. Gallagher and Joseph Coult, for defendants. Reed, V. C. It appears that the township of Bloomfield, together with the city of Orange and the township of Montclair, built an outlet Bewer, each to pay its proportion of the expenses ; that Bloomfield has raised its proportion by issuing bonds, which are still outstanding. It V^ iS^ppears that the township of Bloomfield also constructed lateral sewers through its streets and paid for them $30,863.97. It appears that since the construction of these sewers, a new bor- ough has been organized, called the borough of Glen Ridge. It also appears that a portion of the territory of the township of Bloomfield has been included within the limits of the new borough, and that a number of streets in which these lateral sewers were placed, are now within the territorial limits of the borough. The question which tlie bill attempts to raise is, whether the right to control the use of such sewers as now lie within the borough, has passed to the borough gov- ernment, or whether it still resides in the township authority. The contention on the part of the township is, that it paid for these laterals, and is liable to pay for its part of the cost of the main sewer, by means of which the laterals became usable ; that the title in the laterals still resides in it, and that it has the right to control and use its own propert}'. It is stated in the bill, for the purpose of adding to the force of this contention, that these sewers were built to be operated as a single S3's- tem, and that it has, under a contract with the township of Montclair, become liable to pay a proportionate share of the expense of building and maintaining the sewer through the temitory of Glen Ridge. I do not perceive that these facts can influence the decision of the question in hand. The sewers must be regarded as an}' other corporate prop- erty for which the municipality has paid, or for which it is liable to pay, either b}- reason of its outstanding bonds or by the terras of a contract still outstanding. It is corporate property, and the quer}- is, io whom does the right to use and control it belong after it is thrown into the new municipality ? Many of the questions which spring out of the divisions of the territory of a municipalit}' in respect to the prop- erty of the old municipality are entirely settled. For instance, it is settled that the legislature, by virtue of its control over municipal corporations, has the abilit}" to fix the rights of the new and the old corporations in the property, and to adjust the burden of the corporate debts. Dill. Mim. Corp. § 127. It is also settled that where no legislative adjustment is provided for, then the old corporation remains liable for all the debts. DHL Mun. Corp. § 128. It is also settled that all transitory property, such as bonds, money in sinking funds and property of that class, and all real estate that lies within the limits of the old corporation, remains the property- of the old municipality. But in respect to property used for public purposes, such as engine* ,/v/^ U-^ l-!»V- BLOOMFIELD V. GLEN PJDGE. 33 houses, school-houses, puhlic markets, which are located upon lands whicli fall within the limits of the new corporation, there exists some contrarietj- of judicial sentiment. There are cases which hold that the old corporation is not stripped of its title to such property. In Whitier v. Sanborn^ 38 Me. 32, it was held that the alterations of the lines of the school district, whereby a school-house was left in another dis<^rict, would not change the right of property therein. It was also said, obiter, in School District v. Richardson, 23 Pick. G2, that the alteration of the lines of a school district would not change the prop- erty' rights of the old district in a school-house thrown outside of it3 limits. In Board of Health of Buetia Vista Toit^nship v. City of East Saginaw, 45 Mich. 257, land had been conveyed to the board of health in trust for cemetery purposes for the township of Buena Vista. Afterwards, the c\t\ of East Saginaw was incorporated, in- cluding the cemetery. The court held that there was no common-law rule by wliich property can be transferred from one corporation to another without a grant, and as there was no statute, the property was "unaffected b}' the change of corporate lines. In Winona v. School District No. 82, 40 Minn. 13, a school-house, by the altei-ation of the city lines, had been thrown within the city limits; It was held that the old district still retained title to the school-house. The opinion of this case reviews, exhaustively, the cases which have dealt with the subject. These cases, as is perceived, involve the ques- tion of title to school-houses, cemeteries, and ministers' houses, which, b}- reason of the manner in which, and the purpose for which, they are usable, may possibly be distinguishable from other kinds of munic- ipal property lying within the new territory. But the reason ing upon which some of the cases go, viz., that there is no other way by wbich thej)kl corporation can be deprived of its title except through its own grant or by express legislation, seems to include, within the rule an- nounced, property of all kinds. Opposed to the theory of these cases, there are dicta of great weight \ in favor of an opposite rule as the better one, viz., that property fixed l to the land within the new corporation becomes the property of that municipalit}'. 'J'he cases in which this doctrine has been asserted or approved are the following: Bridge Company v. East Hartford, 16 Conn. 171 ; School District v. Tapley, 1 Allen, 48 ; Laramie County V. Albany County, 92 U. S. 315 ; Mount Pleasant v. Beckicith, 100 U. S. 525 ; Board v. Board, 30 W. Va. 424 ; NortJi Hemstead v. Hemstead, 2 Wend. 109. In m}' judgment, the cases which hold that the right to control this kind of propert3' remains still in the old corporation, press unduly the notion that there must be an express grant or express legislation to pass control over such property' to the new municipalit3'. The title held b}' a municipalit}' is of a peculiar kind. It is held by the cor- poration as a trustee for the public. Municipal corporations are ■•"tf '.V a SL€. -•"•"^.^ Uiifec. 5-»'NAP*'>-'^- over sewers. P. L. of 1893, pyp. 271, 460; P. L. of 1892, j9/:). 96, '^*^^-^ 897. The effect of investing boroughs with this control is to exclude the \QJi^ '^'"*^ control of any other municipal corporation within the limits of the 1 borough. It is, therefore, apparent that the discussion with respect to the constitutionality of the act of 1895, which act purported to sever the territory of the boroughs organized under the act of 1878 from the territor}' of the township, is unimportant, for, unless all the sup- plements which have conferred powers upon the boroughs are uncon- stitutional, the act conferring control over sewers must be regarded as valid, and it, without further legislation, excludes the township from exercising anj' control, in respect to this branch of municipal government, within the limits of the borough. .\» 36 CITY OF INDIANAPOLIS V. CENTER TOWNSHIP. I therefore regard the two mnnicipalities, in respect to the matter now under consideration, as entirely distinct. This view strips thft complainants, as alread3' remarked, of the right to relief under this 'v^""' • • • • ^:^^ ' sc V ~. ./^/pAn-^V) BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF ^ INDIANAPOLIS -v. CENTER TOWNSHIP AND CENTER M > y SCHOOL TOWNSHIP, i'^^^-^ I aV \^v^ ^^^^" ^'^^ Indiana, 391.1 >y\ Suit to recover possession and quiet the title in plaintiff of several parcels of real estate, and to compel the trustee of the township to ^,. ^ convey the same to plaintiff. The parcels in question were tracts upon J> ; which school-houses had been erected for the use of the schools of _^avv Center township ; and whic^ afterwards, by an ordinance of annex- ation, had become embraced within the limits of the cit}'. '. ' • a-^ Center School township claimed that, because said township was in v'vw^'r^''*^ debt for a part of the cost of such land and school-houses, the plaintiffs v-*^ "^ ought to pay a part of that indebtedness proportioned to the amount of \ie^-^ taxable property withdrawn from the school township b}' the annexation. The decree, in substance, was that tiie trustee of the school township should convey the real estate to plaintiff, upon the payment by plain- tiff to him of $4,821.48 ; and that plaintiff pay to the school townsiiip the said sum of S4,82L48. Plaintiff appealed. C. A. Dryer ^ for appellant. Ayres <& J^ones, for appellees. McCabe, J. . . . The demurrer to the different paragraphs of the cross-complaint, therefore, presents the question whether the annexation of territory to a city, which territory contains a school-house and lot be- longing to the school township from which the territory is taken, affords a cause of action in favor of swch school township against the school corporation of such city, either for the value of such property, or for a part of any unpaid indebtedness of such school township, incurred in either the purchase of the lot or the erection of the house. If there can be a recovery by the school township for an}' part of the unpaid indebtedness on account of the cost of such school building in the absence of statutory authorit}', then no reason is perceived why there could not be a recover}' against the city school corporation for the full value of the property regardless of any indebtedness. The question is not a new one in this court, though there is not per- fect harmony in its decisions thereon. The whole argument of the learned counsel for appellees in support 1 Statement abridged. Part of opinion omitted. — Ed. CITY OF INDIANAPOLIS V. CENTER TOWNSHIP. 37 of the ruling upholding the cross-eomplaint is based on the idea that it would be highl}- inequitable to allow the city school corporation to get the benefit of the taxes collected and to be collected, to defra\" the expense of purchasing the lots, and building the school-houses without contribution, and that the courts have power to adjust such equities by decreeing contribution against the city school corporation. But the diffl- •> ^^ culty in the way of that argument is that contribution may result in forcing the taxpayers residing in the annexed territory to pay twice, or to pay their proportion of the tax a second time. • ■•••• •• Here the Legislature has made provision that the title to school prop- erty embraced in annexed territory shall vest in and be conveyed to the school corporation of the annexing city, without making anj- provision for payment of any part of the value of such school-houses or anj- part of any indebtedness of the school township created on account thereof and remaining unpaid. But it is insisted that in so far as the statute is retrospective it is void as to vested rights. The act is expressly retrospective, and ^ therefore applies to the annexation involved in this case. Retrospec- \J^\ASi-f^ tive laws may be passed by the Legislature when thej- do not destroy i^j^^^j-^^ or interfere with vested rights. Andrews v. Mussell. 7 Blackf 474 ; ISeecTv/foale, Admr., 4 Ind. 283; Pritchardx. Spencer, 2 Ind. 486; , ^ Flinn V. Parsons, Admr., 60 Ind. 573 ; Johnson v. Board, etc.^ 107 ^"^"^ ^^y- Ind. 15 ; Dowell v. Talbot Paving Co., 138 Ind. 675. uta5^«».^ The act did not interfere with vested rights, because the school f\^-^' township only held the title as we have seen as trustee, and the State |.^p , , r Ms the right, as it did in this act, to change the trustee. Indeed, the acfdoes nothing more than re-enact what this court had already de- clared the law to be in the cases we have cited in this opinion upoai-fr-et ^\> *■ that point. ^'"^ff^ The question presented by the cross-complaint is the same precisely y as if the trustee of Center township had promptly conveyed the school- houses and lots in question to the city school corporation, in obedience to the above mentioned act, and then sued the city school corporation for contribution as he has in the cross-complaint. The problem would be, as it now is, solved by recurring to the elementary principle that nojierson or corporation can be made liable to pay monej' outside of a \ ^' tort, without a contract, express or implied, to that effect, unless such liabilit\' is created by positive law or legislative enactment. 13 Am. and Eng. Ency. of Law, 287, and authorities there cited. There is no room for, and there is no contention tliat the facts estab- lish such a contract, either express or implied, on the part of the city school corporation. Such city school corporation had nothing to do. and could have nothing to do, in bringing the annexed territory into '" tlie city, even if that would create an implied obligation to contribute. -^' Moreover, its objections and protest against the annexation, if it had any, would have been impotent and powerless to prevent the same. 38 PEOPLE EX REL. SCHEUBER V. NIBBE. R. S. 1894, sections 3808-3809. Acts 1891, p. 137, sections 37-38. Therefore, if the city school corporation in this case is to be made liatle to contribute, that liability must be created bj- the decree of A \'il^^^ court, as was attempted to be done in this case. The creation of '<''V^ ( such liability being the exercise of a legislative function or power o-:Xjc "^v which the constitution forbids the courts to exercise, the superior Jk.'xlJt^ ' court erred in attempting to do so. Section 1, article 3, Const., R. S. 1894, section 96. It follows from what we have said tiiat the special term erred in overruling the demurrer to the several paragraphs of the cross-complaint, and consequently the general term erred in affirming that part of the judgment resting on the cross-complaint, namely, the judgment against the appellant for $4,821.48. 'y^ That part of the judgment is reversed, and the judgment in favor of ••m \ the appellant, the cit}' school corporation, for the conve3-ance to it of ^^X 1 the school-houses and lots is affirmed, freed from the condition to pay ^ , I said sum. t^r^. *. The cause is remanded, with instructions to sustain the demurrer to ' v*^^ the several paragraphs of the so-called answer, but which is a cross-- complaint or counterclaim. -±r^<\ru^ ~ kjvJ^ o^ C^M ■*ir^ PEOPLE EX REL. SCHEUBER v. NIBBE co-Vi(vc?'v<*-^^ 1894. 150 7//. 269. .g:^^.W- Bailey, J. This was a proceeding by quo loarranto^ brought to test the validity of the organization of Drainage District No. one, in the township of Niles, Cook county, claimed to have been organized under the provisions of the Farm Drainage Act. It seems to be conceded that, in the organization of the district, all the statutory requirements ■were complied with, the only objection to its validity being, that the district includes a portion of the territory of the village of Niles Center, a municipal corporation organized under the general law ia relation to the incorporation of cities and villages. It appears that the district embraces a long, narrow and somewhat irregularly shaped territory, and that at about the middle of the dis- trict, a portion of the territory of the village is includcvl, extending entirely across the district. It will thus be seen that, if the portion of the village included in the district were omitted therefrom, the district would be divided into two separate portions, having no con- nection with each other, and it may perhaps be admitted that if the village territory was improperly and illegally included, the organiza- tion of the district must be held to be invalid. But we are unable to see upon what ground it can be held that the inclusion in a drainage district organized under the Farm Drainage Law of a portion of the territor}' of a village already organized under the general law in relation to cities and villages is^Jmprojjer.or uii- ^. PEOPLE EX KEL. SCIIEUBER V. NIBBE. lawful . It cannot be doubted that the Legislat ure h as the power to authorize the organization of municipal corporations for one pu rpose, embracing territ o'ry situated wholly or partly within the bouncraries of. another municipaf corporation already organized for another purpose. This question Vas fully considered in Wilson v. Board of Trustees, 133 111. 44:3. That case involved the question of the constitutionality of the act entitled, " Au Act to create sanitary districts, and to re- move obstructions in the Des Plaines and Illinois rivers," approved May 29, 1889, the first section of which provided that, " whenever any area of contiguous territory within the limits of a single county shall contain two or more incorporated cities, towns or villages, and shall be so situated that the maintenance of a common outlet for the drain age thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary district." One of the ques- tions raised was, whether it was within the power of the General Assembly, under the Constitution, to authorize the formation of sanitary districts, disregarding the existence and boundaries of pre- existing municipal corporations, and invest the corporate authorities with the power of taxation for sanitary purposes. In considering t-hat question, we held, that while the General Assembly may vest in cities, towns and villages, the power to construct sewers, drains, etc., for sanitary purposes, it may also create a corporation within the county, \ v and invest it with like power, and so, may create a corporation includ- ing both city and county, and invest it with power to secure the public health by means of sewers, channels and drains ; that there are no constitutional restrictions as to the boundary lines of public or muni- cipal corporations within which new corporations may be formed, ex- cept as to counties, and that it is wholly unnecessary that the corporate authorities of the new corporation should be also the corporate authori- ties of some specific pre-existing corporation ; that it therefore violates no principal of constitutional law to create a district, and vest it with powders of taxation for sanitary purposes, co-extensive with the terri- tory to be controlled, and that the propriety of the creation of such municipal corporation belongs alone to the General Assembly and not to the courts. Precisely the same doctrine must be held to apply to the statute under which the drainage district now before us was organized. That was an act " to provide for drainage for agricultural and sanitary purposes," etc., and, upon the same principles laid down in the case above cited, the General Assembly had power, under the constitution, to provide for the organization of drainage disti'icts, embracing such territory as in the exercise of its legislative discretion it thought proper, wholly irrespective of whether the territory to be thus organ- ized into a drainage district, or any part of it, was already embraced within the boundaries of a pre-existing municipal corporation. We are also of the opinion that the provisions of the Farm Drainage Act cannot be so interpreted as to exclude from a drainage district to tts>^ 1 2^ ^r'^ 40 HUNTER V. PlTTSBUllGH. be organized under them, the territory already embraced within the limits of an incorporated village. Section eleven of the act and sub- sequent sections which provide for the formation of districts for com- bined drainage out of territory lying within a single town, merely provides that the territory to be embraced within the proposed district shall lie within one town. 3 Starr &, Cur. Stat. 443, et seq. The pro- visions of these sections are sufficiently broad to embrace any and all contiguous territory within a town which is so circumstanced as to re- quire a combined system of drainage for agricultural or sanitary pur- poses wholly irrespective of whether any portion of it is already included within the boundaries of a pre-existing municipal corporation or not. And we know of no other provision of the statute, and are referred to none, by which any further limitation in this respect is imposed. By the judgment of the Circuit Court, the petition for a writ of quo warranto was dismissed, and we are of the opinion that, upon the facts appearing in the record that judgment was proper, and it will therefore be affirmed. Judgment affirmed. ^T) HUNTER V. PITTSBURGH. ^vs^jOvv^v/tfti' <^ 1907. 207 U. S. 161. In^^^Lfe^'T^ Moody J.* The plaintiffs in error seek a reversal of the judgment i^Vi*, of the Supreme Court of Pennsylvania, which affirmed a decree of ^(Xkhj lower court, directing the consolidation of the cities of Pittsburgh and ,• C Allegheny. This decree was entered by authority of an act of the ^^^^ih^ General Assembly of that State, after proceedings taken in conformity ff\QpJC with its requirements. The act authorized the consolidation of two ^^g^-l^ cities, situated with reference to each other as Pittsburgh and Alle-^^ gheny are, if upon an election the majority of the votes cast in thej,,^,,;^^ territory comprised within the limits of both cities favor the consoli-^i^^j dation,~even though, as happened in this instance, a majority of the -vilH* votes cast in one of the cities oppose it. I'he procedure prescribed by A^ the act is that after a petition filed b}' one of the cities in the Court otii^.^^^ Quarter Sessions, and a hearing upon that petition, that court, if the , petition and proceedings are found to be regular and in conformity '' with the act, shall order an election. If the election shows a majority of the votes cast to be in favor of the consolidation, the court " shall /K^t^^ enter a decree annexing and consolidating the lesser city . . . with the greater city." The act provides, in considerable detail, for the • effect of the consolidation upon the debts, obligations, claims and property of the constituent cities; grants rights of citizenship to the citizens of those cities in the consolidated city ; enacts that " except 1 Statement and arguments omitted. — Ed. '\^^^«~■i^ AjJJL r^ p O-t^----^ <*-■ . •-'^•^'■^^^ l>tr*>-J< .0-\^^^<^Tk^^ HUNTER V. PITTSBURGH. 41 as herein otherwise provided, all the property . . . and rights and ^^^^i, privileges . . . vested in or belonging to either of said cities . . . rT^. prior to or at the time of the annexation, shall be vested in and owned by the consolidated or united city," and establishes the form of government of the new city. This procedure was followed by the tiling of a petition by the City of Pittsburgh ; by an election in which the majority of all the votes cast were in the affirmative, although the majority of all the votes cast by the voters of Allegheny were in the negative, and by a decree of the court uniting the two cities. Prior to the hearing upon the petition the plaintiffs in error, who were citizens, voters, owners of property and tax-payers in Allegheny, 1 -^ C"Vi.£ filed twent3^-two exceptions to the petition. These exceptions were _,-.-; jT disposed of adversely to the exceptants by the Court of Quarter Ses- \\iL sions, and the action of that court was successively affirmed by the IJU-*-*' Superior and Supreme courts of the State. The case is here upon writ T^>-a-^/ of error, and the assignment of errors alleges that eight errors were committed by the Supreme Court of the State. This assignment of errors is founded upon the dispositions by the state courts of the questions duly raised by the filing of the exceptions under the provis- ions of the Act of the Assembly. The defendants in error moved to dismiss the case because no ^ Federal question was raised in the court below or by the assignments -^-^^^^-'^ of error, or, if any Federal question was raised, because it was frivol- ous. This motion must be overruled. The plaintiffs in error claimed that the Act of Assembly was in violation of tlie Constitution of the c^^ VA United States, and specially set up and claimed in the court below rights under several sections of that Constitution, and all their claims were denied by that court. These rights were claimed in the clearest possible words, and the sections of the Constitution relied upon were specifically named. The questions raised by the denial of these claims . ^:^«-Urv< are not so unsubstantial and devoid of all color of merit that we are I ck*-**"'^ warranted in dismissing the case without consideration of their merits. . ., ^V'-^- Some part of the assignments of error and of the arguments in support of them may be quickly disposed of by the application of well-settled principles. We have nothing to do with the policy, wisdom, justice or fairness of the act under consideration; those questions are for the consideration of those to whom the State has entrusted its ___ legislative power, and their determination of them is not subject to ^ review or criticism by this court. .We have nothing to do with the -+- interpretation of the constitution of the State and the conformity of the enactment of the Assembly to that constitution ; those questions are for the consideration of the courts of the State, and their decision of them is final. The Fifth Amendment to the Constitution of the United States is not restrictive of state, but only of national, action. After thus eliminating all questions with which we have no lawful concern, there remain two questions which are within our jurisdiction. There were two claims of rights under the Constitution of the United 42 HUNTER V. PITTSBURGH. States which were clearly made in the court below and as clearly denied. They appear in the second and fourth assignments of error. Briefly stated, the assertion in the second assignment of error is that the Act of Assembly impairs the obligation of a contract existing between the City of Allegheny and the plaintiffs in error, that the latter are to be taxed only for the governmental purposes of that city, and that the legislative attempt to subject them to the taxes of the enlarged city violates Article I, section 9, paragraph 10, of the Constitution of the United States. This assignment does not rest upon the theory that the charter of the city is a contract with the State, a proposition fre- quently denied by this and other courts. It rests upon the novel proposition that there is a contract between the citizens and tax-payers of a municipal corporo.tion and the corporation itself, that the citizens and tax-payers shall be taxed only for the uses of that corporation, and shall not be taxed for the uses of any like corporation with which it may be consolidated. It is not said that the City of Allegheny ex- pressly made any such extraordinary contract, but only that the con- tract arises out of the relation of the parties to each other. It is difficult to deal with a proposition of this kind except by saying that it is not true. No authority or reason in support of it has been offered to us, and it is utterly inconsistent with the nature of muni- cipal corporations, the purposes for which they are created, and the relation they bear to those who dwell and own property within their limits. This assignment of error is overruled. Briefly stated, the assertion in the fourth assignment of error is that the Act of Assembly deprives the plaintiffs in error of their property without due process of law, by subjecting it to the burden of the additional taxation which would result from the consolidation. The manner in which the right of due process of law has been violated, as set forth in the first assignment of error and insisted upon in argument, is that the method of voting on the consolidation prescribed in the act has permitted the voters of the larger city to overpower the voters of the smaller city, and compel the union without their consent and against their protest. The precise question thus presented has not been determined by this court. It is important, and, as we have said, not so devoid of merit as to be denied consideration, although its solution by principles long settled and constantly acted upon is not difficult. This court has many times had occasion to consider and decide the nature of municipal cprporations, their rights and duties, and the rights of their citizens and creditors. Maryland v. Bait. & Ohio Railroad^ 3 How. 534, 550 ; East Hartford v. Hartford Bridge Company, 10 How. 511, 533, 534, 536; United States v. Railroad Company, 17 Wall. 322, 329 ; Laramie County v. Albany County, 92 U. S. 307,308, 310-312; Commissioners v. Lucas, 93 U. S. 108, 114; iVew Orleans v. Clark, 95 U. S. 644, 654 ; Mount Pleasant v. Beckwllh^ 100 U. S. 514, 524, 525, 531, 532; Meriwether v. Garrett, 102 U. S. 472, 511 ; Kelly v. Pittsburgh, 104 U. S. 78, 80 ; Forsyth v. Hammond^ HUNTER V. PITTSBURGH. 43 166 U. S. 506, 518; WilUams v. Eggleston, 170 U. S. 301, 310; Covington v. Kentucky, 173 U. S. 231, 241; Worcester v. Worcester Street Raihoay Com2jany, 196 U. S. 539, 549; Kies v. Lowrey, 199 U. S. 233. It would be unnecessary and unprofitable to analyze these decisions or quote from the opinions rendered. We think the following principles have been established by them and have become settled doctrines of this court, to be acted upon wherever they are applicable. Municipal corporations are political subdivisions of the State, createdk as convenient agencies for exercising such of the governmental powersH of the State as may be entrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State. Neither their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such pro[)crty, or exempting them from taxation upon it, constitutes a contract with the State within the meaning of the Federal Constitution. The State , therefore, at its pleasure may modify or withdraw all such powers, may take without compensation such prop- erty, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another munici- pality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In aU these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may by such changes suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right by contract or otherwise in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences. T]ie_power Js jn the State and those who legislate for the State are alone responsible for any unjust^ or oppressive exercise of it. Applying these principles to the case at bar, it follows irresistibly that this assignment of error, so far as it relates to the citizens who are plaintiffs in error, must be overruled. It will be observed that in describing the absolute power of thei^oX/L^ic^^;^ State over the property of municipal corporations we have not extended<^^^^«— x u. ' it beyond the property held and used for governmental purposes. Such corporations are sometimes authorized to hold and do hold property for the same purposes that property is held by private corporations or individuals. The distinction between property owned by municipal corporations in their public and governmental capacity and r^k ,u^2. 44 HUNTER V. PITTSBURGH. # that owned by them in their private capacity, though difficult to define, has been approved by many of the state courts (1 Dillon, Municipal Corporations, 4th ed. , sections 66 to 66a, inclusive, and cases cited in note to 48 L. R. A. 465), and it has been held that as to the latter class of property the Legislature is not omnipotent. If the distinction is recognized it suggests the question whether property of a municipal ' corporation owned in its private and proprietary capacity may be taken from it against its will and without compensation. Mr. Dillon says truly that the question has never arisen directly for adjudication in this court. But it and the distinction upon which it is based has several times been noticed. Commissioners v. liucas^ 93 U. S. 108, 115 ; Meriwether v. Garrett, 102 U. S. 472, 518, 530; Essex Boards. STcinMe, 140 U. S. 334, 342; Neio Orleans v. Water Works Co., 142 U. S. 79, 91 ; Covington v. Kentucky, 173 U. S. 231, 240; Worcester v. Street Railway Co., 196 U. S. 539, 551 ; Monterey v. Jacks, 203 U. S. 360. Counsel for plaintiffs in error assert that the City of Allegheny was the owner of property held in its private and proprietary capacity, and insist that the effect of the proceedings under this act was to take its property without compensation and vest it in another corporation, and that thereby the city was deprived of its property without due process of law in violation of the Fourteenth Amendment. But no such question is presented by the record, and there is but a vague suggestion of facts upon which it might have been founded. In the sixth exception there is a recital of facts with a purpose of showing how the Ji taxes of the citizens of Allegheny would be increased by annexation l^ « to Pittsburgh. In that connection it is alleged that while Pittsburgh intends to spend large sums of money in the purchase of the water plant of a private company and for the construction of an electric light plant, Allegheny "has improved its streets, established its own system of electric lighting, and established a satisfactory water ju- supply." This is the only reference in the record to the property ■ " '^'^^ I rights of Allegheny, and it falls far short of a statement that that city s/^*i-KKh^ ^ ■' holds any property in its private and proprietary capacity. Nor was P there any allegation that Allegheny had been deprived of its property without due process of law. The only allegation of this kind is that the tax-payers, plaintiffs in error, were deprived of their property without due process of law because of the increased taxation which would result from the annexation — an entirely different proposition. f^^ Nor is the situation varied by the fact that, in the Superior Court, ^viA^^-^j Allegheny was "permitted to intervene and become one of the ^ " appellants." The city made no new allegations and raised no new questions, but was content to rest upon the record as it was made up. Moreover, no question of the effect of the act upon private property rights of the City of Allegheny was considered in the opinions in the state courts or suggested by assignment of errors in this court. The question is entirely outside of the record and has no connection with MOUNT PLEASANT V. BECKWITH. 45 any question which is raised in the record, without jurisdiction to consider it, Dewey 193; Harding v. Illinois, 196 U. S. 78, intimate any opinion upon it. The judgment is Nr^SV--. For these reasons we are V. Des Moines, 173 U. S. and neither express nor A^rmed. V^k' :yy-^ MOUNT PLEASANT v. BECKWITH. 1879. 100 U. S. 514.1 Appeal from U. S. Circuit Court for Eastern District of Wisconsin. Rill in eqult^ bv Beckwith against the town of Mount Pleasant, the ^j"- town of Caledonia, and the city of Ra (jjie..Jo enforce the payment of ^ certain bonds. In 1853 the town_o_f Racine and each of the three above-named munic- ipalities were distinct municipal corporations established by law. The bunds in suit were issued b}' the town of Racine, under authority of the legislature. In 1859 the name oTTtle town of Racine was changed to Orwell. In 1860 the legislature passed an act vacating and extin- guishing the town of Orwell (formerly' the town of Racine), and en- acting that thereafter it should have no existence as a body politic and corporate. This act of 1860 annexes part of the territor}' of Orwell to Caledonia, and the remainder to Mount Pleasant ; but contains no pro- vision relative to the payment of the existing indebtedness of Orwell In 1871 an act was passed taking from Mount Pleasant a portion of the territory which had been thus annexed to it in 1860, and adding such territory to the city of Racine. This act of 1871 provides that the city of Racine " shall assume and pay so much of the indebtedness of the town of Racine as the lands described in the first section of the act may be or become legally chargeable with and liable to pay." The court, upon the aforesaid facts and upon the report of a master stating the respective proportions and valuations of the taxable prop- erty received by each of the defendant municipalities from the town of Orwell, made a decree that the defendants should severally pay certain proportions of the debt due Beckwith. The decree was based on the theory that an equitable liability for the indebtedness of the town of Racine, alias Orwell, accrued against the defendant municipalities, to which such territory was distributed, in the proportion which the tax- able property received by each and the valuation thereof bore to the whole taxable property and the whole debt of such vacated town. d ^ Statement abridged. Argument and part of opinion omitted. — Ep. i.,^- <;v f f:i^ — r ""^t I '^-uvw- ^> » r .^ • U V-^iA«'lN. lloiiW 48 MOUNT PLEASANT V. BECKWITH. Suppose it be admitted that the act of the State legislature annulling the charter of the municipalit}' indebted to the complainant, without making any provision for the pa^-ment of outstanding indebtedness, was unconstitutional and void, still it must be admitted that the very act which annulled that charter annexed all the territory and property of the municipality to the two appellant towns, and that they acquired with that the same power of taxation over the residents and their estates that thev previously possessed over the estates of the inhabitants resident "within their limits before their boundaries were enlarged. Extinguished municipal corporations neither own propert}", nor have the}' any power to levy taxes to pay debts. Whatever power the ex^ tinguished municipality had to levy taxes when the act passed annulling her charter terminated, and from the moment the annexation of her territorj- was made to the appellant towns, the power to tax the prop- erty transferred, and the inhabitants residing on it, became vested in the proper authorities of the towns to which the territor}' and jurisdic- tion were b}' that act transferred ; from which it follows that for all practical purposes the complainant was left without judicial remed}' to enforce the collection of the bonds or to recover judgment for the amounts the}' represent. When the appellant towns accepte d the annexation, their authorities knew, or ought to have known, that the extinguished municipality owed /lebts, and that the act effecting the annexation made no provision for their payment. They had no riglit to assume that the annulment of the charter of the old town would have the effect to discharge its indebted- ness, or to impair the obligation of the contract held by its creditors to enforce the same against those holding the territory and jurisdiction by the authorit}' from the legislature and the public property and the power of taxation previously' held and enjoyed by the extinguished municipality. Express provision was made b}' the act annulling the charter of the debtor municipality for annexing its territory to the appellant towns ; and when the annexation became complete, the power of taxation pre- viousl}' vested in the inhabitants of the annexed territory as a separate 'municipalit}' ceased to exist, whether to pa}- debts or for any other pur- pose, — the reason being that the power, so far as respected its future exercise, was transferred with the territory and the jurisdiction over its inhabitants to the appellant towns, as enlarged by the annexed terri- tory ; from which it follows, unless it beheld that the extinguishment of tITe debtor municipality discharged its debts without payment, which the Constitution forbids, that the appellant towns assumed each a pro- Iportionate share of the outstanding obligations of the debtor town when Ithey acquired the territory, public property, and municipal jurisdiction Vover every thing belonging to the extinguished municipality. Corporations of a municipal character, such as towns, are usually or- ganized in this country by special acts or pursuant to some general State law ; and it is clear that their powers and duties differ in some important MOUNT PLEASANT V. BECK WITH. 49 particulars from the towns which existed in the parent country before the Revohition, where they were created b}' special charters from the crown, and acquired many of their privileges by prescription, without any aid from Parliament. Corporate^ franchises of the kind granted during that period partook much more largely of the nature of private corporations than do the municipalities created in this country, and known as towns, cities, and counties. Power exists here in the legi^sla- ture, not only to fix the boundaries of such a municipality when incor- porated, but to enlarge or diminish the same subsequently, without the consent of the residents, by annexation or set-off, unless restrained b}* the Constitution, even against the remonstrance of ever}- property bolder and voter within the limits of the original municipalit}-. Property set off or annexed may be benefited or burdened b\- the change, and the liabilitj' of the residents to taxation ma}- be increased or diminished ; but the question, in every case, is entirely within the control of the legislature, and, if no provision is made, every one must submit to the will of the State, as expressed through the legislative de- partment. Inconvenience will be suffered by some, while others will be greatly benefited in that regard by the change. Nor is it any objection to the exercise of the power that the propert}- annexed or set off will be subjected to increased taxation, or that the town from which it is taken or to which it is annexed will be benefited or prejudiced, unless the Constitution prohibits the change, since it is a matter, in the ab- sence of constitutional restriction, which belongs wholh- to the legisla ture to determine. Courts everywhere in this country hold that, divisio n of towns, the legislature ma}- apportion the burdens bet the two, and ma}' determine the proportion to be borne by each. Sill vT The Village of Corning, 15 N. Y. 297 ; Mayor v. State, ex rel. of the Board of Police of Baltimore, 15 Md. 376 ; City of Olney v. Harvey, 50 111. 453 ; Borough of Dunmore's Appeal, 52 Pa. St. 374. Publ ic p roperty and the subordinate rio-hts of a municipal corpora- tion are within the control of the legislature ; and it is held to be settled law that, where two separate towns are created out of one, each, in the absence of any statutory regulation, is entitled to hold in severalty the public property of the old corporation which falls within its limits. North Hempsted v. Ilempsted, 2 Wend. (N. Y.) 109 ; The Hartford Bridge Company v. East Hartford, 16 Conn. 149, 171. Extensive powers in that x'egard are doubtless possessed by the legis- lature ; but the Constitution provides that no State shall pass any " law impairing the obligation of contracts," from which it follows that the legislature, in the exercise of any such power, cannot pass any valid law impairing the right of existing creditors of the old municipality. 1 Dillon, Municipal Corp. (2d ed.), sect. 41 ; Yan Hoffman v. City of Quincy, 4 Wall. 535, 554 ; Lee County v. Rogers, 7 id. 181, 184 ; Butz V. City of Mnscatine, 8 id. 575, 583 ; Furman v. Nichol, id. 44, 62. Where a municipal corporation has the power to contract a debt, it has, says Dixon, C. J., by necessary implication, authority to resort to {^ VVVOw, 50 MOUNT PLEASANT V. BECKWITH. the usual mode of raisiiig money to pa}- it, which undoubtedl}' is taxa- tion. /State ex rel. JIasbroicck v. The City of Milwaukee, 25 Wis. 122, 133. „s^ (Jiy\v>A*^ Whenever the charter of a city, at the time of the issue of bonds, /x \rtyjv»-*tBade it the duty of the city authorities to levy and collect the amount, ^'x' ^ ^ when reduced to judgment, like other cit}' charges, the same court held .A^ Vv^K^T^-^^jj^g^^ a subsequent act of the legislature prohibiting the city from levying such a tax would be repugnant to the Constitution. SoiUter v. The City of 3Iadison, 15 id. 30. State control over the division of the territory of the State into cities, towns, and districts, unless restricted by some constitutional limitation, is supreme, but the same court admits that it cannot be exercised to annul another regulation of the Constitution. Chandlery. Boston, 112 Mass. 200 ; 6 Cush. (Mass.) 580. - Cities or towns, whenever they engage in transactions not public in """"^ their nature, act under the same pecuniary responsibility as individuals, ^tr~^ and are as much bound by their engagements as are private persons, nor ^v~j-, is it in the power of the legislature to authorize them to violate their ^^^^ ^ contracts. The Western Saving Fund Society v. The City of Phila- ^!^^ delpliia, 31 Pa. St. 175, 185. Text-writers concede almost unlimited power to the State legislatures in respect to the division of towns and the alteration of their boundaries, but they all agree tliat in the exercise of these powers they cannot de- feat the rights of creditors nor impair the obligation of a valid contract. 1 Dillon, Municipal Corp., sect. 128; Blanehard v. Bissell, 11 Ohio St. 96 ; Lansing v. County Treasurer, 1 Dill. 522, 528. Concessions of power to municipal corporations are of high impor- tance ; but the^' are not contracts, and consequenth' are subject to legislative control without limitation, unless the legislature oversteps the limits of the Constitution. Xioyton v. Neic Orleans, 12 La. Ann. 615. , (jl^^**^ Bonds having been issued and used bj- a city for purchasing land for If^t*^ a park, which was pledged for the payment of the bonds, held, that a ' subsequent act of the legislature authorizing a sale of a portion of the %r\\^ j\ park, free of all liens existing b\' virtue of tlie original act, was in viola- te ljT~^ tion of the Federal Constitution, as impairing the obligation of contracts. Brooklyn Bark Com. v. Armstrong, 45 N. Y. 234, 247. Laws passed by a State impairing the obligation of a contract are void, and if a State cannot pass such a law, it follows that no agencj' can do so which acts under the State with delegated authority. Cooley, Const. Lim. (4th ed.) 241 ; Angell &. Ames on Corp. (9th ed.), sects. 332, 333. Xj^j>^ Municipal debts cannot be paid b y an act of the legislature annulling jj- C^MA^-*-* thecliaiter of the municipalit}-, and. il' m^t, then the creditors of suclT" ..•.,<( v^ a political division must have some remedy after the annulment takes "'"^ A place^ \V ithout officers, or the power of electing such agents, a munici" ()al corporation, if it can be so called, would be an entity very difficult MOUNT PLEASANT V. BECKWITH. 51 to be subjected to judicial process or to legal responsibilit}' ; but when the entity itself is extinguished, and the inhabitants with its territory and other property- are transferred to other municipalities, the sugges- tion that creditors may pursue their remedy against the onginal con- traclingparty is little less than a mockery. Public property, with the inhabitants and their estates, and the power of taxation, having been transferred by the authorit}' of the legislature to the appellants, the principles of equity and good conscience require that inasmuch as they are, and have been for nearly twenty years, in the enjoyment of the benefits resulting from the annexation, they shall in due proportions also bear the burdens. JVew Oi'leans v. Clarlc^ 95 U. S. 644, 654. Equitable rules of decision are sufficiently comprehensive in their reach to do justice between parties litigant, and to overcome every difficulty which can be suggested in this case. States are divided and subdivided into such municipalities, called counties, cities, towns, and school dis- tricts, and the legislature of every State is required ever\'year to pass laws modifying their charters and enlarging or diminisliing their boundaries. Nor are tlie questions presented in tliis case either new in principle or difficult of application. New forms are given to such charters in every day's experience, when the limits of an old corporation are changed hy annexation of new territory, or portions of the territory of the old munici- pality are set off and annexed to another town. Both corporations, in such a case continue, though it may be that the charters are much changed, and that the inhabitants of the territory annexed or set off fall under different officers and new and very diverse regulations. Beckwith V. City of Racine^ 7 Biss. 142, 149. Pecuniary burdens may be increased or diminished by the change ; but, in the absence of express provisions regulating the subject, it will be presumed in every case where both municipalities are continued, that the outstanding liabilities of the same remain unaffected by such legislation. Unlike that in this case, the charter of the old town was vacated and annulled, from which it follows that the same principles of justice require that the appellant towns, to which the territory, property, and inhabitants of the annulled municipality were annexed, should be- come liable for its outstanding indebtedness. Decree affirmed. Mr. Justice Miller, with whom concurred Mr. Justice Field and 1 Mr. Justice Bradley, dissenting. I I am of opinion that it requires legislation to make a legal obligation against the new town, and make the apportionment of the debt ; and I dissent on that ground from the judgment and opinion of the court in this case. ff 52 BKEWIS V. CITY OF DULUTH., -j-^ . ^t^JT*^ >. r^pO^ BREWIS V. CITY OF DULUTH AND VILLAGE OF p^S>'^ f\\ DULUTH. <;cw>^-«^^'^ 1881. 3 McCrary U. S. Circuit Court Reports, 219. j^jTrvw-* f U. S. Circuit Court for District of Minnesota. (S^^'^^ v^^TTTj In equity . Demurrer to bill of complaint. 'Yv^-p^ '*-T .^ This suit is brought against the city of Duluth and the vi llage of vV{V*i Duluth to recover the coupons overdue upon bonds of the Citj of Duluth, in this district. A demurrer is interposed by the village of Duluth. rT» Gilinan <& Clouffh, for demurrer. ^^^-'"^^ Williams & Davidson, contra, Mj Nelson, District Judge. The complainant is the owner of certain tuk)* bonds issued under an act of the legislature of Minnesota, approved March 8, 1873, authorizing the city of Duluth to fund the debt previously incurred for improving the harbor, and for other purposes. The bonds were payable in not less than 20 nor more than 30 years from the date of their issue, and bear interest at the rate of 7 per cent, per annum, paj-able semi-annually in tlie eit}' of New York. The complainant be- came a bona fide holder of the bonds and coupons previous to 1875. It appears that on February 23, 1877, the legislature of the state of Minnesota created the \j jl.'\g e of Duluth out of a part of theterrit^IX of the city of Duluth, under an act entitled "An act to create the , village of "Duluth, * * * and to apportion the debts of the citj- of Duluth between itself and the village of Duluth, and provide for the payment thereof." This act carved the village out of the cit}' limits, taking and embrac- ing in the village all the business part of the city and business houses, the harbor, railroad depots and tracks, nearl}- all the dwelling-houses, all the population except about 100 inhabitants, and nineteen-twentieths of all the taxable propert}' ; and no provision was made for the pay- ment of the debts of the cit}" by the village unless creditors would accede to the terms imi)()scd by the legislature as hereinafter stated. It also appears that on Februar\' 28, 1877, an act was passed entitled "An act to amend the act entitled an act to incorporate the cit}' of Duluth," approved March o, 1870, and this act declared that the ser- vice of all summons and process in suits against the city of Duluth should be made on the mayor of tlie city, and that service made on an}- other officer should not be valid against the cit}-. It also provided that the term of the office of mayor should cease on the following April, 1877, and no provision was made for the election of a successor or for filling a vacancy ; that no taxes should be levied without the affirma- tive vote of all, to-wit, four aldermen ; and since the passage of the act there have never been four aldermen in the cit}' qualified to act. There is a section authorizing the lev}' of taxes by the count}- of St. Louis, in which the city is situated, V)ut all taxes thus levied and col' lected must be paid to the village of Duluth. BREWIS V. CITY OF DULUTH. 53 On the facts admitted by the demurrer the complainant is entitled to relief. The legislature undoubtedly had the right to create the village of Duluth out of the territory of the cit}-, and, as between the city and the village, apportion the existing indebtedness ; but when th e corpora- tion which created the debt is shorn of its population and taxable prop- ert}' to such an extent that there is no reasonable expectation of its meeting the present indebtedness, and it is unable so to do, the credP tors, at least, can enforce a proportionate share of their obligations against the two corporations carved out of one. Both are liable to the' extent of the property set off to each respectively. The debt of the city at the time the village was created by act of February 23, 1877, was about $400,000, and the act creating the village of Duluth authorized an apportionment of the debts as follows : Section 3, in substance, provides that after one year from February 23, 1877, the village shall become jointly liable with the city on all bonds issued prior to the passage of this act, unless it shall within the year take up and cancel, as h erein after provided , $218,000 of the evidence of indebtedness outstanding of the city, provided that inter- est to Januar}- 1, 1878, on all bonds and maturing coupons shall be treated and regarded as part of said evidence of outstanding indebted- ness. Section 4 enacts that not more than $100,000 of vHlage 6 per cent. 30-year bonds shall be issued for taking up outstanding bonds and orders of the _city of Duluth to the amount of $218,000, and interest thereon to January 1, 1870. These bonds are to be placed in the possession of the judge of the Eleventh judicial district of the state of Minnesota. Section 5 enacts that persons holding bonds, matured coupons, or orders of the city of Duluth prior to the passage of this act may sur- render the same to the judge of the district court for exchange for the bonds of the village of Duluth; and whenever $218,000 has been sur- rendered, the judge shall issue to the persons so surrendering, the bonds of the village of Duluth to o ne-fourth of the amount so surrendered, and on the_delivei-}' of the village bonds shall cancel the amount of city bonds received in exchange. "tJther "sections provide for annexation of more land from the city limits. This stat ute interferes with the rights of creditors. The obligations of a municipal corporation are not affected, although the name may be changed and the territory increased or diminished, if the new organiza- tion embraces substantially the same territory and the same inhabitants. It may be true that generally creditors, to obtain relief, must look ex- clusively to the corporation creating the debt ; but when a state of facts exfsts as disclosed here, and the old corporation is diminished in popu^ laHo h, wealth, and territory to the extent admitted, it would be a mockery of justice to withhold the relief asked. 54 MERIWETHER V. GARRETT. s.-J-*^- TVithout at this time considering more fully the question presented, whether the several acts of February 25, 1877, and February 28, 1878, impair the obligations of the contract between the city of Duluth and its creditors, it is clear to my mind that the bill on its face contains sufficient equity and calls for an answer. The demurrer is overruled, and the defendant can have until Jan- uary rule-day to answer. \McCrary, Circuit J'udge, concurred.' ^e\. ?>■ (S\,^ ^ut^^ ^•A o V 'V ^-^1 iVA5' v^ k/^3 GARRETT, jr^.^^^ 1880. 102 U. 5.472.2 ^^^cX^^^^^^^r^^ l^ MERIWETHER V. Appeal from U. S. Circuit Court for Western District of Tennessee. \ <5-v- s3^ In E guitM. The original bill was filed against the cit}- of Memphis, rjlA)^*^ Jan. 28, 1879, by Garrett et als. ; alleging, in substance, that the plaintiffs are holders of overdue bonds and coupons of the cit}', upon nmch of which indebtedness they had secured judgments and writs of mandamus to compel the collection thereof; but that the city and its officials have for years failed to collect the taxes assessed. The bill pyaj's for the appointment of a receiver, under the act of March 19, 1877, to take charge of the city assets, including bills for past due taxes, and to collect all outstanding claims due to the cit}', and to settle the debts of the cit}'. B}- an act passed Jan. 29, 1879, and approved Jan. 31, 1879, the legislature repealed certain specifically named acts incorporating Mem- phis and amending its charter. The act of 1879 also provides that the charters of all municipal corporations in this State having a population of 35,000, or over, (which Memphis had) " be and the same are hereb}' repealed, and all municipal offices held thereunder are abolished." The said act further provided that " the population within the territorial limits as now defined, and the territor}- of all municipal corporations heretofore governed " under certain specified statutes (which are hereby' repealed) "are hereb}' resolved back into the body of the State, and ^ Upon the final hearing, at .June term, 1882, the court, from evidence given, found that the city of Duluth "is now in a condition to meet its matured obligations, and, prospectively, all others as thev mature." The court said that the taxable property in the city " has already increased nearly or quite fourfold, and is advancing rapidly." " There is, therefore, no legal or equitable reason, in the light of authority, for going behind the legislative apportionment." The court reaffirmed the intrinsic correctness of the view taken in the above opinion given upon the demurrer, but said : " The case, as now before the court, is very different from that presented on demurrer." The bill was dismissed. 13 Fed. Rep. 3.34. — Ed. 2 The statement is aljridged, adopting largely the condensed statement in the opinion of Field, J., p. 502-.510. The dissenting opinion of Strong, J., is omitted ; also portions of the opinion of Field, J. — I^d. MERIWETHER V. GARRETT. 55 all offices held under and bv virtue of said repealed sections are hereby abolished ; and all power of taxation, in any form whatever, lieretofore \ vested in or exercised by the authorities of said municipal corporations by virtue of any of tlie acts of incorporation hereinbefore recited, or otherwise, is for ever withdrawn and reserved to the legislature ; and the public buildings, squares, promenades, wharves, streets, alleys, parks, fire-engines, hose and carriages, liorses and wagons, engine- houses, engineer instruments, and all other property, real and personal, hitherto used by such corporations for municipal purposes, are hereby transferred to the custody' and control of the State, to remain public property, as it has always been, for the uses to wliich said property has been hitlierto applied. And no person holding office under and by virtue of an}' of said repealed sections, or an}' of the acts above recited, shall, from and after the passage of this act, exercise or attempt to exercise an}' of the powers or functions of said office. On the same da}' with the passage of the repealing act, the legisla- ture passed another act to establish tax ing district s^in the State, and to provide the means for their local government. It declared that the several communities embraced in the territorial limits of the repealed corporations, and of such other corporations as might surrender their cliarters under the act, were created taxing districts in order to provide tlie means of local government for their peace, safety, and general wel- fare ; that the necessary taxes for the support of the governments thus established should be imposed directly by the General Assembly, and not otherwise ; that in administering the affairs and providing the means of local government the following ageiicias and instrumjyitalities were estal)lished, — namely^ a board of fire and police commissioners; a committee on ordinances or local laws, to be knowp as the legislative councjl of the taxing district; a board of health, and a board of pulilic works ; and it prescribed in detail the duties and powers of these local agencies. The act prohibited the commissioners from issuing any bonds, notes, scrip, or other evidences of indebtedness, or from con- tracting for work, material, or services in excess of the amount levied for them for that year ; and declared that no property, real or personal, held by them for public use should ever be subject to execution, attach- ment, or seizure under any legal process for any debt created by them ; that all taxes due, or moneys in the hands of the county trustee, or on deposit, should be exempt from seizure under attachment, execution, garnishment, or otlier legal process. It also declared that no writ of mandamus or other process should lie to compel them or other govern-/ ing agencies to levy any taxes, and that neither the commissioners, norl trustee, nor the local government should be held to pay or be liable for any debt created by the extinct corporations, and that none of thei taxes collected under the act should ever be used for the payment of any M*iKv^ of said debts. The act also declared that all the property previously used by the corporations for purposes of government was transferred to the custody and control of the board of commissioners of the taxing dis- i^.M ■v,*v*C7 fV-N- -,. jC-O 56 MEKIWETHEE V. GAERETT. ^ *\ tricts, to remain public property for the uses to which it had previously been applied, and that all indebtedness for taxes or otherwise, whether in litigation or not, due to the extinct municipalities, should vest in and become the property- of the State, to be disposed of for the settlement of their debts as should thereafter be provided by law. In Februar}-, 1879, the plaintiffs filed an amended and supplemental bill, making certain officials co-defendants, and^illeging that^the above acts of Jan. 31, 1879, were unconstitutional. Bills were also filed b^' other judgment creditors. Feb. 12, 1879, the court ordered that the several causes be consolidated, and appointed Latham receiver. The order directs the receiver (inter alia) to take possession of all the real and pei'sonal property of the city, except certain property used for public purposes ; to collect rents from citj- property ; and to collect unpaid taxes. March 14, 1879, the legislature passed an act, providing, as to the municipal corporations whose charters may have been repealed, that the governor " shall appoint an officer for such extinct corporations respec- tively, to be known as a receiver and bac k-tax collect flj-." The act required said officer to take possession of all books, papers, and docu- ments pertaining to the assessment and collection of taxes, which had been levied at the time of the repeal of the charters. It ordered him to file a bill in the Chancer}' Court of the county in which the corporation was situated, in the name of the State, in behalf of all creditors against all its delinquent tax-payers, and provided that taxes assessed prior to 1875 might be settled in the valid indebtedness of the extinct munici- pality, whether due or not, and that the receiver should receive evi- dences of such indebtedness at certain designated rates.. It also prohibited him from coercing payment of a greater sum than one-fifth of the taxes in arrears annually, so as to distribute the whole thi-oiigTi five equal annual instalments, commencing from his appointment and qualification. It authorized the Chancery Court to enforce all liens upon property for the paj'ment of taxes, and to order all sales neces- sary for their collection ; and to settle and adjust all equities, priorities, and liens ; and to give to the defendants and creditors all the relief which might be given if there were as many separate suits as there were creditors and delinquent tax-payers. It provided that the taxes as collected should be paid into the State treasur}', and be paid out to parties entitled to receive them, as adjudged b}' the Chancery Court, upon the warrant of the receiver, countersigned by the Chancellor. It required the receiver, in paying the mone^' collected into the treasury, to distinguish the sources whence it was derived, showing the amount from each special and general tax, so that the}' might be kept separate, and be paid out to creditors according to the priority, lien, or equity determined. The act was accompanied with a proviso that it should not interfere with an}- vested rights entitling parties to a speedy collection. Under' this act, Meriwether was appointed by the governor receiver MERIWETHER V. GARRETT. 57 and the back-tax collector of Memphis. The plaintiffs subseqnentlv amended their bill by making Meriwether a defendant. To the bill, as consolidated and amended, the defendants demurrejjCuO^ [obligations, or under judicial direction, can be collected through a receiver appointed b}- a court of chancer^', if there be no public officer charged witli autborit}' from the legislature to perform that dut\-, is not decided, as the case does not require it. ^ 5. The receiver and back-tax collector appointed under the authority ^r-y^^^'^''^ of the act of March 13, 1879, is a public officer, clothed ^ith authorit}- from the legislature for the collection of the taxes levied before the repeal of the charter. The funds collected by hiin from taxes levied under judicial direction cannot be appropriated to an}- other uses than those for which the}' were raised. He, as well as any other agent of the State charged with the duty of their collection, can be compelled b}' appropriate judicial orders to proceed with the collection of such taxes b}' sale of proi)erty or by suit or in an}- other way authorized by law, and to apply the proceeds upon the judgments. X^^ 6. The bills in this case cannot be amended so as to obtain relief against the receiver and back-tax collector, without making an entirely new suit. They were not framed with a view to any such purpose. 7. The decree of the court below is reversed. 8. The cause is remanded, with instructions to dismiss the billS; without prejudice. If, on the settlement of the accounts of the receiver herein, it shall be found he has any money in his hands collected on taxes levied under judicial direction to pay judgments in favor of any persons wlio have become parties to this suit, an order ma}* be made directing its appropriation to the payment of such judgment. Upon the first, second, third, and fifth of these propositions the judg- ment of the court is unanimous. Upon the fourth, sixth, seventh, and eighth it is by a majority only. Mr. Justice Field. Mr. Justice Miller, Mr. Justice Bradley, and \ myself concur in the judgment rendeied, but, as the judgment is not accompanied by a statement of the reasons on which it is founded, I proceed to state those which have controlled us. [After stating the case.] Tliis decree is manifestly erroneous in its main provisions. It pro- ceeds upon the theory that the property of every description held by the municipality at the time of its extinction, whether held in its own right or for public uses, including also in that designation its uncol- lected taxes, were chargeable with the payment of its debts, and con- stituted a trust fund, of which the Circuit Court would take possession and enforce the trust ; and that the private property of the inhabitants of the city was also liable, and could be subjected by the Circuit Court to the payment of its debts. In both particulars the theory is radically wrong. The right of the State to repeal the charter of Memphis cannot be questioned. Municipal corporations are mere instrumentalities of the State for the more convenient ndministration of local government. Their powers are such as the legislature may confer, and these may be MEEIWETIIEE V. GARRETT. 59 enlarged, abridged, or entire!}- withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies and repeated by text-writers. There is no c ontra ct between the State and the public that the charter of a city shall not be at all times su bject to legislative control. All persons who deal with such bodies are conclusively presumed to act upon knowledge of the power of the legislature. There is no such thing as a vested right held bv any individual in the grant of legislative power to them. United States V. Railroad Co., 17 Wall. 322; Commissioners v. Lucas, Treasurer, 93 U. S. 108; People \. Horris, 13 Wend. (N. Y.) 325; Philadelphia v. Fox, 64 Pa. St. 169 ; 31ontpelier v. East Montpelier^ 29 Vt. 12; Angell & Ames, Corp. (10th ed.), sect. 31; Dill. Mun. Corp., sect. 30; Coolej', Const. Lim. 192, 193. By the repeal the legislative powers previously possessed bj' the corporation of Memphis reverted to the State. A portion of them the State imraediatel}' vested in the new government of the taxing district, with many restric- tions on the creation of indebtedness. A portion of them the State retained ; it reserved to the legislature all power of taxation. It thus provided against future claims from the improvidence or recklessness of the new government. The power of the State to make this change of local government is incontrovertible. Its subsequent provision for the collection of the taxes of the corporation levied before the repeal of its charter, and the appropriation of the proceeds to the payment of its debts, remove from the measure any imputation that it was designed to enable the city to escape from its just liabilities. But while the charter of a municipal corporation may be repealed at the pleasure of the legislature, where there is no inhibition to its action in" the Constitution of the State, the lawful contracts of the corporation, made whilst it was in existence, may be subsequently enforced against property held by it, in its own right, as hereafter described, at the tim.e of the repeal. In this respect its position is not materially different from that of a private individual, whose propert}* must, upon his decease, go to the satisfaction of his debts before those who succeed to bis rights can share in its distribution. [As to the language used in Broughton v. Pmsacola, 93 U. S. 266, p. 268.] It means that whatever property a municipal corporation holds subject to the payment of its debts, will, after its dissolution, be so administered and applied by a court of equit}-. )J^<>' 0^ What, then, is the property of a municipal corporation, which, upon its dissolution, a court of equity will lay hold of and apply to the pa}-- ment of its debts? We answer, firstri;hat it is not property held by the corporation in trust for a private charity, for in such proi)erty the corporation possesses no interest for its own uses; and, secondlyrthat it is not property held in trust for the public, for of such propcfty the corporation is the mere agent of the State In its streets, wharves. 60 MERIWETHER V. GARRETT. cemeteries, hospitals, court-houses, and other public buildings, the cor. poration has no proprietary rights distinct from the trust for the public. It holds them for public use, and to no other use can the}' be appropri- ated without special legislative sanction. It would be a perversion of that trust to apply them to other uses. The courts can have nothing to do with them, unless appealed to on behalf of the public to prevent their diversion from the public use. The dissolution of the charter does not divest the trust so as to subject property of this kind to a liabilitj'" from which it was previoush' exempt. Upon the dissolution, the prop- erty passes under the immediate control of the State, the agency of the corporation then ceasing. 2 Dillon, Mun. Corp., sects. 445, 446 ; Schaffer v. Cadwallader , 36 Pa. St. 126 ; City of Daxsenport v. Peoria, Marine & Fire Insurance Co.^ 17 Iowa. 27 6 ; Askins v. Common- wealth, 1 Duv. (Ky.) 275 ; The President, t&c. v. City of Indian- apolis, 12 Ind^620. In the thiroiplace, we say that taxes previously levied, but not collected on the dissolution of the corporation, do not constitute its property; and in the absence of statutory authorit}' they cannot be_ subsequently collected b}' a court of equit}- through officers of its own appointment, and applied to the payment of the creditors of the cor- poration. Taxes are not debts. It was so held by this court in the case of Oregon v. Lane County, reported in 7th Wallace. Debts are ^ obligations for the payment of money founded upon contract, express or implied. Taxes are imposts levied for the support of the govern- ment, or for some special purpose authorized by it. The consent of the tax-pa3'er is not necessary to their enforcement. They operate in invitum. Nor is their nature affected by the fact that in some States — and we believe in Tennessee — an action of debt ma}' be instituted for their recovery. The form of procedure cannot change their char- acter. City of Augusta v. North, 57 Me. 392 ; City of Camden v. Allen, 2 Dutch. (N. J.) 398 ; Ferry v. Washburn, 20 Cal. 318. Nor are they different when levied under writs of mandamus for the pa}'- ment of judgments, and when levied for the same purpose by statute. The levy in the one case is as much by legislative authority as in the ^ 'c (' ' ' ' other. The writs of mandamus only require the officers of assessment . ^T^v • ;. and collection to obey existing law. In neither case are the taxes liens upon property unless made so by statute. Philadelphia v. Greble^ 38 Pa. St. 339 ; Hoioell v. Philadelphia, id. 471 ; 2 Dillon, Mun. Corp., sect. 659. Levied only by authority of the legislature, they can be altered, postponed, or released at its pleasure. A repeal of the law, under which a tax is levied, at any time before the tax is collectedj_ generally puts an end to the tax, unless provision for its continuance is made in the repealing act, though the tax may be revived and enforced' by subsequent legislation. We say generalh', for there are some exceptions, where the tax provided is so connected with a contract, as__ the inducement for its execution, that the courts will hold the repeal of the law to be invalid as impairing the ot)ligation of the contract. It is MERIWETHER V. GARRETT. 61 not of such taxes, constituting the consideration of contracts, that we are speaking, but of ordinar}- taxes au thorized for the sui)port of gov- ernment, or to meet some spficloJ expend i tyre ; and these, until eoI-_ lected, — -IbeTng mere imposts of the government, created and continuiTig.^ only b}' tlie will of the legislature, — have none of the elements of property~wWch -can be seized like debts bj' attachment or other judicial process and subjected to the payment of creditors of the dissolved c. qi'-_ porat ion. They are in "no proper sense of the term assets of the cor- poration. The}' are only the means provided for obtaining funds to support its government and pay its debts, and disappear as such means with the revocation of the charter, except as the legislature may other- wise provide. When they are collected, the mone}'?. in the hands of the collecting ofBcer mav be controlled by the process of the courts, and applied by their direction to the uses for which the taxes were levied ; Ijut until then there is nothing in existence but a law of the State im- posing certain charges upon persons or property, which the legislature inaj change, postpone, or release, at an}' time before they are enforced. So long as the law authorizing the tax continues in force, the courtsK ma}', by mandamus, compel the officers empowered to levy it brl \ charged with its collection, if unmindful and neglectful in the matterJ I to proceed and perform their duty ; but when the law is gone, and the ' office of the collector abolished, there is nothing upon which the courts can act. The courts cannot continue in force the taxes levied, nor levy new taxes for the payment of the debts of the corporation. The levy- ing of taxes is not a judicial act. It has no elements of one. It is a liTgh^act of s^ver^r2nty7tb~ He pei-formed only by the legislature upon considerations of policy, necessity, and the public welfare. In the dis- tribution of the powers of government in this country into three depart- ments, the power of taxation falls to the legislative. It belongs to that department to determine what measures shall be taken for the public welfare, and to provide the revenues for the support and due adminis- tration of the government throughout the State and in all its sub- divisions. Having the sole power to authorize the tax. it must equally possess the sole power to prescribe the means by which the tax shall be collected, and to designate the officers through whom its will shall be enforced. It is the province of the courts to decide causes between parties, and, in so doing, to construe the Constitution and the statutes of the ' United States, and of the several States, and to declare the law, and. when their judgments are rendered, to enforce them by such remedies as legislation has prescribed, or as are allowed by the established prac- tice. When they go beyond this, they go outside of their legitimate domain, and encroach upon the other departments of the government ; and all will admit that a strict confinement of each department within its own proper sphere was designed by the founders of our government, and is essential to its successful administration. [After referring to Hees y. Watertotcyi, 19 Wallace, 107, 116; and 62 MEEIWETHER V. GARRETT. Heine v. Levee Com'rs of New Orleans, 1 Woods, 247, and 19 Wal- lace, G55.] These authorities — and man}- others to the same purport might be cited — are sufficient to support what we have said, that the power tojev}: taxes is one which belongs exclusiveh- to the legislative departm ent, and from that it necessarily follows that tlie regulation and control of all the agencies by which taxes are collected must belong to it. When creditors are unable to obtain payment of their judgments against municipal bodies by execution, the}' can proceed by vxandamus against the municipal authorities to compel them to levy the necessary tax for that purpose, if such authorities are clothed b}- the legislature with the taxing power, and such tax, when collected, cannot be diverted to other uses ; but if those authorities possess no such power, or their offices have been abolished and the power witlidrawn, the remedy of the creditors is by an appeal to the legislature, which alone can give them relief. No Federal court, either on its law or equity side, has any inherent jurisdiction to lay a tax for any purpose, or to enforce a tax already- levied, except through the agencies provided by law. However urgent the appeal of creditors and the apparent hopelessness of their position witliout the aid of the Federal court, it cannot seize the power which belongs to the legislative department of the State and wield it in their behalf. To return to the question propounded : what is the property of a municipal corporation which, on its dissolution, the courts can reach and apply to the payment of its debts ? We answer, it is the private property of the corpora tion, that i s, such as it held in its own right for profit or as a source of .revenue, not charged with anv public trust or use, and funds in its })ussession unap- propriated to any specific purpose. In this respect the position of the extinct corporation is not dissimilar to that of a deceased individual ; it is only such propertv as is possessed, freed from any trust, general or special, which can go in liquidation of debts. The decree of the Circuit Court proceeding upon a diflferent theor}' of its control over the uncollected taxes of the repealed corporation, and of the property which could be applied to the payment of its debts, cannot be maintained. On another ground, also, the decree is equally untenable. It adjudges that " all the property within the limits of the territory of the city of Memphis is liable, and may be subjected to the payment of all the debts" for whicli the suits are brought, and that "such liability shall be enforced thereafter, from time to time, in such manner " as the court ma}' direct. In no State of the Union, outside of New. England, does the doctrine obtain that the private property of individuals within the limits of a municipal corporation can be reached by its creditors, and suVtjected to the payment of their demands. In Massachusetts and Connecticut, and perhaps in other States in New England, the individual liabilitj^f_the^, MERIWETHER V. GARRETT. 63 inhabitants of tovvnSj parishes, and cities, for the debts of the latter, ih mainiained, and exeeuliuns upon judgments issued against tlieni can be enforced agaTn St the private property of the inhabitants. But this doc- Tnne^ is admitted by the courts of those States to be peculiar to their jurisprudence, and an exception to the rule elsewhere prevailing. Elsewhere tiie private property of the inhabitants of a municipal body cannot be subjected to the payment of its debts, except by way of tax- ation ; but taxes, as we have already said, can only be levied by legisla- tive authority. The power of taxation is not one of the functions of the judiciary ; and whatever authority the States may, under their consti- tutions, confer upon special tribunals of their own, the Federal courts cannot by reason of it take any additional powers which are not judicial. [After quoting from Bees \. Watertoion^ 19 Wallace, 107, p. 122.] It is pressed upon us with great earnestness by counsel, that unless the Federal courts come to the aid of the creditors of Memphis, and enforce, through their own officers, the taxes levied before the repeal of its charter, they will be remediless. But the conclusion does not follow. The taxes levied pursuant to writs of mandamus issued b}' the Circuit Court are still to be collected, the agenc}' onlv for their collection being changed. The receiver appointed by the governor has taken the place of the collecting officers of tlie city. The funds received by him ujion the special taxes thus levied cannot be appropriated to any other uses. The receiver, and anj* other agent of the State for the collec- tion, can be compelled by the court, equall}- as the former collecting officers of the city, to proceed with the collection of such taxes by the sale of propertv or by suit, or in any other waj- authorized b}' law, and to apply the proceeds upon the judgments. If relief is not thus afforded to the creditors, they must appeal to the legislature. "We cannot pre- sume that the appeal will be in vain. We cannot sa\' that on a proper representation they will not receive favorable action. It is certainly of the highest importance to the people of ever^' State that it should make provision, not merely for the payment of its own indebtedness, but for the payment of the indebtedness of its different munici[)alities. Hesitation to do this is weakness ; refusal to do it is dishonor. Infidelity to engagements causes loss of character to the individual ; it entails reproach upon tlie Sti^te. ; The Federal judiciary has never failed, so far as it was in its power, ' to compel the performance of all lawful contracts, whether of the indi- vidual, or of the municipality, or of the State. It has unhesitating!}' brushed aside all legislation of the State impairing their obligation. When a tax has been authorized by law to meet them, it has compelled the officers of assessment to proceed and lev}- the tax, and the officers of collection to proceed and collect it, and apply the proceeds. In some instances, where the tax was the inducement and consideration of the contract, nil attempts at its repeal have been held invalid. But this has been the limit of its power. It cannot make laws when the State 64 MOBILE V. WATSON. refuses to pass them. It is itself but the servant of the law. If the State will not levy a tax, or provide for one, the Federal judiciary can- not assume the legislative power of the State and proceed to lew the tax. If Jihe State has provided incompetent officers of collection, the Federal judiciary- cannot remove them and put others more competent in their place. If the State appoints no officers of collection, the Fed- eral judiciary cannot assume to itself that duty. It cannot take upon itself to supplj' the defects and omissions of State legislation. It would ill perform tlie duties assigned to it by assuming power properly belong- ing to the legislative department of the State. ■ , / [Mr. Justice Strong, with whom concurred IMr. Justice Swayne and Mr. Justice Harlan, delivered an opinion dissenting from the action of the majority of the court in reversing the decree of the court below and ordering a dismissal of the complainants' bill. One of his positions was, that the lev}' of a tax is a veiy distinct thing from the collection of a tax already levied. The lev}- is gener- ally a legislative or a quasi-judicial act. The collection of a tax after it has been levied is a ministerial act, which a court has power to enforce. His opinion concludes thus : I think the decree should be modified by striking out so much of it as subjects to the payment of the debts of the city the property- held exclusively for public uses, and so much as subjects to such payment the private property of all persons within the city's territorial limits Thus modified, I think the decree should be affirmed.]'^ ^ \\''-^^^'\^\aA^ MOBILE V. WATSON. VC^ .S^'^^^-*;^-^' MOBILE V. UNITED STATES, ex rel. WATSON. , ^a "^xt^ 1886. 116 6^5.289.2 ---»^ Error to U. S. Circuit Court for Southern District of Alabama. Vla^ The object of the first of these suits was the recover}- of a Judgment />a/^ for money, and of the second the enforcement, by the writ of manda- jO mus, of the judgment recovered in the first. They were argued as one ^^'^ ^ In Luekrman v. Taxing District of Shelbj Count}/, a. d. 1879, 2 Lea, Tenn. 425, a majority of the Supreme Court of Teuuessee held, that the charter of Memphis had beeu constitutionally repealed, and also that the establishmeut of the Taxing District was constitutioual. In O'Connor v. Memphis, a. d. 1881, 6 Lea, Tenn. 730, (where scire facias was issued requiring the Taxing District of Shelby County to show cause why the suit should not be revived against it,) a majority of the Supreme Court of Teunessee held, " that the Taxing District of Shelby County is so far the successor of the late corporation of the city,of Memphis, or the same corporation under a new name, that a suit pending against the old corporation may be revived against the new, and pro.se- cuted to judgment." The court did not decide as to the creditor's remedy for collect Ing his judgment. — Ed. ^ Statement abridged. Argument and part of opinion omitted. — Ed. h MOBILE V. WATSOX. bo case. In the first case Heniy "Watson, the defendant in error, Tvas the plaintiff in the Circuit Court. He brought his action against the Port of Mobile to recover the principal mone\" due on certain bonds issued b}' the Cit}' of Mobile, under its corporate name. . . . B}' the act of 1859, the City of Mobile was authorized to issue bonds to aid in the construction of a railroad under sucli contract as the City might make with the railroad company, and was vested with power to adopt the ordinances necessar\- to carry out such contract. The City .'ftcv--*^ ^ thereafter contracted with the railroad cora[)any to issue tiie l)ondsofJ ^^^.-J^" the City, and to an nuall y provid e a ce itai n sam t o_bg n. i)[)lied to the 1 (^r^ji^SpS^ pa3'ment t hereof by a specTaflax ; and to pass an ordinance to accom- ' /yjrtfiutJc/-' iTTTsTTthis result. Tlie City did accordingly pass an ordinance providing jf^^ W^-^^ for the annual lev}- and collection of such a special tax. The bonds \^ now held bj' Watson were Issued to the railioad company, and sold bj' it, upon the faith of the act of the legislature and the aforesaid contract and ordinance of the City of Mobile. . , i^ In 1879 the legislature repeal ed the charter of the Cit}* of Mobile ; 1 W^'^^I^jn^ and on the same da}' passed an act incorporating the Port of Mol)ile. 1 ^'^'^ All ihF territor}- included in the Port of Mobile was embraced within QfykX^ the limits of the Cit}' of Mobile. The area of the Cit\- comprised about I ^^^^"^ ' ) 17 square mfles ; and that of the Port about 8 square miles. All the ^v^"*^^ thicklv settled part of the City was included in the Port; the excluded f>^-'* - - portion consisting of sparsely settled suburbs of little value. Fourteen- fifteenths of the inhabitants of the City were inhabitants of the Port. Out of more than $16,000,000 of taxable property of the City, all but 8900,000 was included within the limits of the Port. Tlie act repealing the charter of tlie City provided for the appoint ment of commissioners, to whom the City prgperty and claims should be turned over ; and who should api)ry~TTre proceeds of sucrassets to the payment of debts of the City, the floating debt to be paid first The act expressl}' declared that the commissioners should have no power to levy any tax. By a subsequent act the commissioners of the City were required to turn over to the officials of the Port all the real and personal property formerly held by the Cit}- " for public use and governmental purposes," except only the wharves. It was not pre- tended tliat payment could or would be made to the bondholders out of the assets of the City in the hands of the commissioners. The act incorporating the Port of Mobile provided for a Police Board, empow- ered to levy and collect taxes to a limited amount, for the purpose of 1 '\i>''*-f ^^ defraying the expenses of carrying out the provisions of the act. By li a subsequent act it was expressly pi'ovided that the Police Board should not lev}- any other tax than the one authorized by the pre- ceding act. ^ Plaintiff, "Watson, recovered judgment against the Port of Mobile. Pr-v-^^^^ Execution was issued, and returned " no property found." Watson then filed a petition, praying for a writ of mandamus, to compel the ^w^-f 66 MOBILE V. •U'ATSOX. Port of Mobile and its officers charged with the levying and collection of taxes to assess, levy, and collect a special tax for the payment of the judgment. The court ordered the writ to issue against tlie Port of Mobile and the Police ,3Qaxd. " ' "'~ The original judgment against the Port of Mobile, and the judgment rendered upon the petition for mandamus, were both brought up for review by the writ of error sued out by the Port of Mobile. Udnnis Taylor and J. Little Smith {Braxton Bragg with them), for plaintiff in error. A Gaylord B. Clark and James E. Webb, for defendants in error. ■^ y»^'> I Woods, J. [After stating the case.] We are of opinion, upon this O^ /state of the statutes and facts, that the Port of Mobile is the legaT^ic^ ijL*-v ^ I cessor of the City of Mobile, and liable for its debts. The two corpo~ "TZ^^P^ rations were composed of substantially the same communit}', included *L'^ \ within their limits substantiallv the same taxable propertv, and were organized for the same general purposes. w>* r- Where the legislature of a State has given a local communitv, living within designated boundaries, a municipal organization, and 1)3' a sub- sequent act or series of acts repeals its charter and dissolves the corpo- ration, and incorporates substantially the same people as a municipal body under a new name for the same general purpose, and the great mass of the taxable propert}' of the old corporation is included witliin the limits of the new, and the property of the old corporation used for public purposes is transferred without consideration to the new cor- Iporation for the same public uses, the latter, notwithstanding a great reductio n of its corporate limits, is the successor in law of the former, and liable for its debts ; and if any part of the creditors of the old corporation are left without provision for the payment of their claims, they can enforce satisfaction out of the new. In illustration and sup- port of this proposition, the following cases are in point : In Girard V. Philadelphia^ 7 Wall. 1, it was held hy this court that the annexation to the Citv of Philadelphia, having a territory of only two square miles, of twent3"-eight other municipalities with all their nhabitants, comprising districts, boroughs, and townships of variou.s territorial extent, and the (ihangbig^ o f its name, did not destro}' its identity or impair its right to hold propert}' devised to it. So in Bronr/hton v. Pensacola, 93 U. S. 266, 270, it was said by Mr. Justice Field, in delivering judgment, that when "a new form is given to an old corporation, or such a corporation is reorganized under a new charter, taking in its new organization the place of the old one, lerabracing substantiall}' the same corporators and the same territory, "it wirTTTe presumed t hat t he legislature intended a continued existence of the same corporation, although different powers are possessedTIhder" the hew charter and different officers administer its affairs, and in the absence of express provision for their payment otherwise, it will also be presumed in such case that the legislature intended that the liabili- ^J 'C^^ 9^ p . ^ JM-'^v .-A V ^^^^^^'w^^ Wv I. J ct>. MOBILE V. WATSON. 67 9-^ of a municipal corporatioiv^or a change of its name, nor an increase^^^^^^"**"*^ \ or dimhaution of its territory or population, nor a change in its mode jr^'^'i^^ of government, nor all of these combined, will destroy the identity, ^^jl^^^^I continuity, or succession of the corporation if the people and territory oxTsir-!^ reincorporated constitute an integral part of the corporation abolished. - '^ . . . The corporators and the territory are the essential constituents of the corporation, and its rights and liabilities naturally adhere to them." In 31ount Pleasant v. £eckwith, 100 U. S. 514, a municipal corpo- ration'^Had^Hbeen dissolved and its territor}' divided between and an- nexed to three adjacent corporations. Upon this state of facts the court held that, unless the legislature otherwise provided, the corpora- tions to which the territory and the inhabitants of the divided corpora- tion had been transferred, were severally liable for their proportionate share of its debts, and were vested with its power to raise revenue wherewith to pay them b}- levying taxes upon the propertj' transferred and the persons residing therein. See also Colchester v. Seaber, 3 Cuddon Eastwick., 1 Salk. 192 ; People v. Morris^ Railroad Co. v. City of New Orleans, Burrow, 1866 13 Wend. 325 ; New Orleans 26 La. Ann. 478. [After referring to Amy v. ^eZma, recentl}' decided by the Supreme Court of Alabama.] ^ This construction of these statutes of the State of Alabama b}' its highest court being in accord with our own views, and in harmony with former decisions of this court on the same general subject, is decisive of the question in hand, unless there is some matei'ial differ- ence between the legislation concerning the City of Selma and that concerning the City of Mobile. The onl3' difference that can be sup- posed to have an}' bearing upon the question under discussion is, that the act incorporating Selma embraced the same territorj' as that cov- ered by the City of Selma, whereas the Port of Mobile covered little more than half the territory embraced b}' the City of Mobile. We think this difference between the two cases is an immaterial one. The Supreme Court of Alabama, in the case of the Mobile and Spring Hill Railroad Co. v. Kennerly, 74 Ala. 566, assumed that the City of Mo- bile and the Port of Mobile had substantially- the same corporators and the same boundaries. And we are of opinion that the exclusion from the limits of the Port of Mobile of the sparsely settled suburbs of the City of Mobile, a territor}' of little value, as fairly appears by the record, and consisting, as stated by the counsel for plaintiff, without contradiction, largely of fields, swamps and land covered with water, will not serve to distinguish this case from the case of Ajny v. S'byia. We repeat, therefore, that in our judgment the Port of Mobile is the legal successor of the City of Mobile, and bound for its debts. (UM ' x^-^ >v>-^^ ^"^^^ -"? 1)AlJLiljyw*"<'^V'^^t.vC-> 68 MOBILE V. WATSON. It follows from this proposition that the remedies necessary to ttie collection of his debt, which the law gave the creditor of the City of Mobile, remain in force against the Port of Mobile, The laws which — k^ establish local municipal corporations cannot be altered or repealed so '•wo'*^''^*^ as to invade the constitutional rights of creditors. So far as such cor- ^ > porations are invested with subordinate legislative powers for local * purposes, they are the mere instrumentalities of the States, for the ti^U^^^ convenient administration of their affairs, and are subject to legislative ^ * (/M^ control. But when empowered to take stock in or otherwise aid a -<;^^ railroad company, and they issue their bonds in payment of the stock ■^-* Jiy^ taken, or to carry out any other authorized contract in aid of the rail- v/V"*'j!r^ road compan}-, they are to that extent to be deemed private corpora- VjU-'V^ tions, and their obligations are secured bj- all the guarantees which ^ protect the engagements of private individuals. Broughton v. Pensa- cola, 93 U. S. 266 ; Mount Pleasant v. Beckwith, 100 U. S. 514. Therefore the remedies for the enforcement of such obliarations as- sumed by a municipal corporation, which existed when the contract wa^ made, must be left unimpaired b}' the legislature, or, if they are clianged, a snbg ^^tia.l eqiiiv alent must be provided. Where the re- ;tfeiOurce for the pa3'ment of the bonds of a municipal corporation is the ower of taxation existing when the bonds were issued, any law which ithdraws or limits the taxing power and leaves no adequate means for •^^9 ^ the payment of the bonds is forbidden by the Constitution of the ^'ty^* United States, and is null and void. Von Hoffman v. Quincy. 4 Wall. sr^^ji^**^ ' 535 ; Edwards v. Kearzey, 96 U. S. 595; Palls County Court v. ,*■ ^ United States^ 105 U. S. 733 ; Louisiana v. Pillsbury, 105 U. S. 278 ; '^Oi Ponisiana v. Mayor of New Orleans^ 109 U. S. 285. Tliese proposi- tions receive strong support from the decisions of the Supreme Court of Alabama. Commissioners of Limestone County v. Pather, 48 Ala. 433 ; Edwards v. Williamson, 70 Ala. 145 ; Slaughter v. Mobile County, j^^ 73 Ala. 134. JJTvIa^'^*^ It follows that the contract by which, under authority of the legisla- l^^J^^*y> ture, the City of Mobile agreed to levy a special tax for the payment JJ^'U^((^^^ ofthe principal and interest of the class of bonds to which those held jt \ ^y the plaintiff belong is still in force, and its obligation rests upon its " yv^ '. legal successor, the Port of IMoImIc. '^ 'jyf'^ All laws passed since the making of the contract, whose purpose or A^^^ effect is to take from the City of Mobile, or its successor, the power to <-■' '^---'^ levy the tax and pay the bonds, are invalid and ineffectual, and will be J%' disi-egarded. Mr. Justice Field, when delivering the judgment of this court in Wolff \. New Orleans, 103 U. S. 358, 368, said : " Tlie courts, therefore, treating as invalid and void the legislation abrogating or re- stricting the power of taxation delegated to the municipality, upon the faith of which contracts were made with her and upon the continuance ~ of which alone they can be enforced, can proceed, and by maiidajnus compel, at the instance of the parties interested, the exercise of that power, as if no such legislation had ever been attempted." And so in ^^.^^\^^\^,.^^^^ ^ SHAPLEIGH V. CITY OF SAN ANGELO. 69 Malls Count)/ Court v. United States, 105 U. S. 733, 738, it was said by the Chief Justice, speaking for the court, that "all laws of the State which have been passed since the bonds in question were issued, purporting to take away froni the county courts the power to lev}' taxes necessary to meet the payments, are invalid, and, under the well settled rule of decision in this court, the Circuit Court had authoritj', bj' mandamus, to require the Count}' Court to do all the law, when the bonds were issued, required it to do to raise the means to pay the judg- ment, or something substantiall}' equivalent." a A\j.jo-.~ The Port of Mobilehas the machiner}- and ot'ticers requisite for theW'^""'^ >j assessment ofproperty and for the levy and collection of taxes to carry J . *^ on the City government. There is no reason why the taxes neecss^ary « f^dC^^^lP^ to pay the judgment of the plaintiff cannot be levied and collected b}' ^\^ /s^vv-i the same officers. There is no obstacle to the full and complete per-^'Ti A formance by the Port of Mobile and the Mobile Police Board of the ^jT^ duties required by the peremptory writ of mandamus issued by the '^vtv^'^ Circuit Court. / i "\ vi\ It follows from the views we have expressed that the judgment of •- the Circuit Court in favor of the plaintiff for $7308.80 and costs against the Port of Mobile, and the judgment directing the peremp tory writ of mandamiis-to be issued against_the^;ort_of Mobile and the Mobile Po- tice B oard for the satisfaction of such judgment, are botlTwarranted by law. ^^-r"^ Judgments affirmed} .^ jX^^J^K^SHAPLEIGH V. CITY OF SAN ANGELO <^ ^x>^ «X^ ■ ' 1897. 167 U. S. 646.2 ^O^^'^RROR to U. S. Circuit Court for Western District of Texas, ^^^^^.w- Action against the cit}* of San Angelo, a city incorporated Feb. 10, 1892, under the laws of the State of Texas. Plaintiff seeks to recover for the amount of certain unpaid coupons for interest on bonds issued by a municipal organization, styled "the city of San Angelo," which, from Januar}'- 18, 1889, to Dec. 15. 1891, exercised the powers of an incorporated cit}' within territorial limits including all the territory afterwards embraced within the limits of the defendant corporation; and claiming to have been incorporated by certain entries made Jan. 18, 1889, upon the records of the commissioner's court of Tom Green 1 "In Devcraiixv. Citi/ of BrownsrUle, 29 Fed. Rep. 742, the rulinjT in ^Fohih v. Wat- son, supra, was followed and extended, it being declared not only that the succeeding corporation was liable for the existing debts of its predecessor, but that all the powers o f taxation 225.^.2?.*'®^^ ^y ^^^^^ predecessor, which had been conferred as a part of the remedy to which its creditors were entitled, sur vived to the new corporation, and that their~ex'ercise could b^ compelled by mandamus. It was also held that statutes which protiibitea tne exercise of these powers of taxation were void, as impairing the obli. gation of contracts." 1 Dillon's Man. Corp., 4th ed., page 250, note 2. — Ed. "^'Statement abridged. Portions of opinion omitted. — Ed. 'J » 70 SHAPLEIGH V. CITY OF SAN ANGELO. County. Other material facts are stated in the opinion. The Circuit Court gave judgment for the defendant. T. K. SJcmker, for plaintiff in error. No appearance for defendant in error. Shiras, J. in January, 1889, the cit}' of San Angelo was existing and acting as an organized municipal corporation, with a mayor, a board of aldermen and other functionaries. In pursuance of an ordinance of the city council in May, 1889, there were issued the bonds in question in this case. It was not denied that the proceedings were regular in form, that the bonds were duly executed and registered as required by law, that tlie proceeds of their sale were properh- applied to improv:_ ing the streets and public highways of the cit}', and that the plaintiff was a bond fide holder for value. As things then stood, it is plain that the city could not have set up to defeat its obligations any supposed irregularity or illegality in its organization. The State, being the creator of municipal corporations, is the proper party to impeach the validity of their creation. If the State acquiesces in the validity of a municipal corporation, its corporate existence cannot be coUaterall}' attacked. This is the general rule, and it is recognized in Texas : " If a munic- ipalit}' has been illegalh' constituted, the State alone can take advan- tage of the fact in a proper proceeding instituted for the purpose of testing the validity of its charter." Graham v. City of Greenville^ 67 « Texas, 62. But, in 1890, at the fall term of the district court of Tom Green Count}', an information was filed by the county attorney against named persons, who were exercising and performing the duties, privileges and functions of a mayor and city council of tlie city of San Angelo, claim- ing the same to be a city dul}' and legally incorporated under the laws of the State, and alleging that said city was not legall}' incorporated, and that said named persons were unlawfully exercising said functions. Such proceedings were had that on December 15, 1891, the said district court entered a decree ousting the said persons from their said offlces, and adjudging that the incorporation of said cit}' of San Angelo be, and the same was thereby, abolished and declared to be null and void. The record does not distinctly disclose the ground upon which the court pro- ceeded in disincorporating said city, but enough appears to justify the inference that the incorporation included within its limits unimproved pasture lands, outside of the territory actually inhabited, and that the incorporation was declared invalid for that reason. — — — .^ Subsequently, on February 10, 1892, the city of San Angelo was again incorporated, excluding the unimproved lands, but including all the improved part of the prior incorporation, and in which existed the streets and highways in the construction of which the proceeds of the said bonds had been expended. "What was the legal effect of the disincorporation of the city of San Angelo and of its subsequent reincorporation as respects the bonds in -e \^ c^-V^T / ... . -- . J. ' ,^^, -^--a] SHAPLEIGH V. CITY OF SAN ANGELO. 71 suit? Did the decree of the district court of Tom Green Count}', abolishing the city of San Angelo as incorporated in 18b9, operate to render its incor^wration void ad initio, and to nullify all its debts and obligations created while its validity was unchallenged? Or can it be held, consistenth' with legal principles, tliat the abolition of the city government, as at first organized, because of some disregard of law, and its reconstruction so as to include within its .limits the public improvements for which bonds had been issued during the first organi- zation, devolved upon the city so reorganized the obligations that would have attached to the original city if the State had continued to acquiesce in the validity of its incorporation? [After referring to Broughton v. Pensacola, 93 U. S. 266 ; Mount Pleasant v. Beckioith, 100 U. S. 520 ; and Mobile v. Watson, 116 U. S. 289:] The conclusions reached by this court maj' be thus expressed : The State's plenary power over its municipal corporations to change their organization, to modify their method of internal government, or to abolish them altogether, is not restricted b}' contracts entered into by the municipality with its creditors or with private pai'ties. An absolute repeal of a municipal charter is therefore ert'ectual so far as it abolishes the old corporate organization ; but when the same or substantially the same inhabitants are erected into a new corporation, whether with extended or restricted territorial limits, such new corporation is treated as in law the successor of the old one, entitled to its property rights, and subject to its liabilities. Dillon's Mun. Corp. vol. 1, § 172, 4th ed. This view of the law has been accepted and followed by the Supreme Court of the State of Texas. [Citing and stating 3Iorris v. State, 62 Texas, 728, 730.] The conclusion which is derivable from the authorities cited, and from the principles therein established, is that the disincorporation b}- legal proceedings of the cit}- of San Angelo did nof avoid legall}- subsisting contracts, and that upon the reincorporation of the same inhabitants and of a territory inclusive of the improvements made under such con- tracts, tlie obligation of the old devolved upon the new corporation. "~Th6"dOctrine successfully invoked in the court below by the defendant, that where a municipal incorporation is wholly void ah initio, as being created without warrant of law, it could create no debts and could incur no liabilities, does not, in our opinion, apply to the case of an irregularly organized corporation, which had obtained, by compliance with a gen- eral law authorizing the formation of municipal corporations, an organ- ization valid r.s against everybody, except the State acting by direct proceedings. Such an organization is merelj" voidable, and if the State p*-^"*^ refrains from acting until afte r debts are create d, the obrig-iUions are not (lestroye JlSyTrnTssoTulion of tlie corporation, but it will be presumed that the'State intended that they should be devolved upon tlic new cor- "pora'lion which succeeded, by operation of law, to the property and improvements of its predecessor. [The court tlieii consicTered tlfe legal ^Cn-n i'"il^i ur^^-*v< Kieji5.,lJ9. y -j^x ^ . <,. ^ ^S'^ I. PEOPLE EX EEL. GAUEN V. NIEBRUEGGE. 73 WC tion from 1882 to 1897. At the last mentioned date three commission- ers were acting. No annual reports were made by the commissioners thereafter until 1908. From the record of proceedings in tlie county court as to this district, as set out in said plea, it is not entirely clear |V^ *^ whether any commissioners were appointed by the court from 1897 \''' j'' until 1908. In September of the year 1908 a petition was filed in the '^\^ i county court of Monroe County, signed by twenty-seven land owners of said district, requesting the court to appoint three persons as drainage commissioners. After a heariug on this question the court appointed the three defendants in error. It has been held by this court that drainage districts should be c lassed as muni cipal corporations. Commissioners of Drainage Dis- trict v. Kelsey^ 120 111. 482; Elmore v. Drainage Commissioners, 135 id. 269; Badger x. Inlet Drainage District, 141 id. 540. In Dillon ou/ /Kq^.^ Municipal Corporations (vol. 1, 4th ed. sec. 168, p. 245), that author W ji* states that the doctrine of forfeiture of the right to be a corporation "^i/^ — v^ has no ju st or proper application to municipal corporations, and " if ^ j they neglect to use powers in which the public or individuals have an interest, and the exercise of such powers be not discretionary, the ^*' . courts will interfere and compel them to do their duty. On the other ^ \^ hand, acts done beyond the powers granted are void. ... In short, J^ ^ unless otherwise specially provided by the legislature, the nature and constitution of our municipal corporations, as well as the purposes they are created to subserve, are such that they can, in the author's judg- ment, only be dissolved by the legislature or pursuant to legislative enactment. They may become inert or dormant, or their functions may be suspended for want of ofHcers or of inhabitants ; but dissolved, when created by an act of the legislature and once in existence, they cannot be by reason of any default or abuse of the powers conferred, either on the part of officers or inhabitants of the incorporated place. Asthey can exist only by legislative sanction, so they cannot be dis- solved or cease to exist except by legislative consent or pursuant to legislative provision." Municipal corporations can cease to exist only ^^ by legislative consent or pursuant to legislative provision, and a fail-i'^'^^ ^^ ure^r a term of years to exercise the functions of a municipality doesl ''^'^^ not effect a dissolution. C'o'n v. Brown, 111 Mich. 657; State v. t-'^'^' "Stevens, 21 Kan. 210. A public corporation is not dissolved by fail- ure to elect officers. People v. Wren, 4 Scam. 269; President and Trustees v. Thompson, 20 111. 197; People v. Town of Fairhury, 51 id. 149 ; School Directors v. School Directors, 135 id. 464 ; 1 Smith ou Corp., 1903 ed., sec. 479, p. 446. Municipal corporations are sub- ject to legislative control, and may be changed, modified, restrained or abolished to suit the exigencies of the case. City of Cldcago v. Town tn ^ of Cicero, 210 111. 290, and cases cited. While drainage districts may p^^'^^V^ not^p Rtiint.ly iTinni<-ipnl foi-i^nrtjiiti^J DS.. thev are public cor|)oratioas. i '^" -T^^ - JPeople V. Anderson, 239 111. 266; People y. Hepler, 240 id. 196) organ- ' {^^"^^"'^^ ized for a special and limited purpose. Elmore v. Drainage Comrs., I „ 74 CHALSTRAN V. BOARD OF EDUCATION. supi'a. They are created by the statute, and we think, on reason, and authority, the rules of law governing the dissolution of municipal cor- porations must be held to apply to drainage districts. In 1889 an act was passed authorizing the dissolution of any drain- age district by order of the county court of the county wherein the same was organized, upon a hearing upon a verified petition signed by not less than four-fifths of the adult land owners of such district, own- ins: not less than three-fourths of the assessed land. Hurd's Stat. 1908, par. 191, p. 876. We think it is obvious, not only from the au- thorities on this subject but from the provisions of the Levee act and of the act just referred to, that the legislature did not intend that t he district should be dissolved except in~tEe ir, a \ . n c F" pro vid ecl~By th e s aid act of 1889. It is not claimed that any attempt has been made, under said provision of the statute, to dissolve this district. It is further provided in section 1 of the act for the dissolution of drainage dis- tricts that they can be dissolved only when " no indebtedness of such district exists." The plea filed in the court below stated that the aggre- gate sum collected for the execution of drainage work was $31,537.79; and that there had been expended for the work the aggregate sum of $41,000, and that to secure the funds to complete said work, bonds J^>^ were issued by said district, some of which were still outstanding and unpaid. On this state of facts the district could not be dissolved by the court, even on the petition of the necessary property owners, until these bonds were paid. The district did not forfeit its corporate powers by non-user. Neither, as we have seen, was the corporation dissolved by failure to elect .oflScers. The drainage commissioners appointed in 1895 and ijj^i^ys 1897 continued in office until their successors were chosen and qualified. yi^^^ TrMSifees of Schools v. Coivden, 240 111. 39 ; People v. Morrdl, 234 id. vf*'^ 47. The county court had the authority to appoint, as it did, the de- ) fendants in error commissioners under section 62 of the said Levee act. Hurd's Stat. 1908, p. 838. "We find no reversible error in the record. The judgment of the circuit court will therefore be affirmed. -, > Judgment affirmed. ^Jsi ^^ iU«iv>% CHALSTEAN v. BOARD OF EDUCATION. 1910. 244 ///. 470. , \ ^- ^-**^*^j3o^ This is an action of assumpsit brought in November, 1907, in the '' * circuit court of Knox County, by E. A. Chalstran, appellee, against the Board of Education of Township High School District 13, range 1, east, Knox county, Illinois, appellant. On March 2, 1906, appellee entered into a written contract with said board to build a high school building for Si, 560. Before that date a petition had been filed for an Uf A iJT> ^jyr-^- 1-vwCtV CHALSTEAN V. BOARD OF EDUCATION", 7o election to vote for or against the discontinuance of said township highj school. Appellee knew of this petition at the time .lie. executed the contract. At tlie election held on April 2, 1906, it was voted to dis- continue the school.^ Carter, J. It is conceded that the vote to discontinue the high school district was taken in accordance with the law, the sole question in dispute being as to the effect of that vote. Section 44 of article 3 of the School law (Kurd's Stat. 1908, p. 1920), after providing for the canvass of the ballots in an election held as to the discontinuance of a high school, reads : " If the majority of the votes at sucli election shall be found in favor of discontinuing the high school, it shall be the duty of the trustees to discontinue the same, and turn all the assets of the said high school over to the school fund of the township or townships '' . . \ interested therein, in proportion to the assessed valuation of said town- ^^^'^■■•^ ships, to be used as any other township fund for school purposes." This law was in force at the time said vote to discontinue was taken. , It is practically the only section of the statute which has a direct bearing on the closing up of the affairs of a high school district so discontinued. Public corporations are but parts of the machinery employed in car- rying on the affairs of the State, and they are subject to be changed, modified or destroyed, as the exigencies of the public may demand. Trustees of /Schools v. Tatman, 13 111. 27 ; Amy v. Watertoivn, 130 U. S. 801. The legislature has supreme power over them, and may divide, alter, enlarge or abolish them, as in the legislative judgment the public welfare may require. City of Chicago v. Town of Cicero, 210 111. 290 ; Town of Cicero v. City of Chicago, 182 id. 301; People v. McBrid-e, 234 id. 146. Municipal corporations can only be dissolved through legislative authority. 1 Dillon on Mun. Corp., 4th ed., 108. But the legislative authority over municipal corporations is not in all respects unlimited. Tliat authority is regulated and controlled by the provi- sions of the national and State constitutions. 1 Dillon on Mun. Corp., 4th ed., sec. 65. The rights and franchises of municipal corpora- tions, being granted for purposes of government, are not such vested rights, as against the State, that they cannot be taken away, nor does the charter of a municipal corporation constitute a contract in the sense of the constitutional provision which prohibits the obligation of con- tracts being violated. Cooley's Const. Lim., 7th ed., 206. While the charter itself can be modified or abolished, if a municipal corpora- tion has become indebted under its charter, the rights of a creditor based upon the obligation of a contract cannot be impaired by any subsequent" legislative enactment. 1 Dillon on Mun. Corp. (4th ed.) sees. 63, 69 ; Wolfy. New Orleans, 103'U. S. 858; Milnefs Admr. v. Fensacola, 2 Wood (U. S. Cir. Ct.), 662. The record shows that the high school district in question had been established only a year previous to the date of the vote to discontinue. 1 The remainder of the facts are omitted. — Ed. 76 CHALSTRAN V. BOARD OF EDUCATION. Counsel for the appellant insist that the legislature could not have in- tended that these two votes were to be taken within a year, and that a fair construction of the law does not require the high school district to be abolished as soon as the vote to discontinue is taken. They argue that if a high school is being conducted, the legislature must have in- tended that it should continue until the end of the then current school year. Beyond question, under the authorities, the legislature could make such conditions as appellant contends it did make by the existing laws. But no such conditions are found in the statute. The statute only provides that on the vote being canvassed the high school shall be discontinued and the assets turned over to a certain fund. Appellant further argues that if the effect of this vote was to abolish the high school immediately, then it must necessarily follow that the part of the contract which was not completed, if not binding upon both parties, could not be binding on either. Appellant insists that section 44 of the School law was in force at the time the contract was entered into and had become a part of it. Barrett v. Bodie, 158 111. 479 ; Abbott on Mun. Corp. sec. 88. Appellee knew, at the time he entered into this contract with the high school board, of the legislative provi- sion authorizing the discontinuance of the district. If, fairly construed, this statute shows that the legislative intention was as contended for by appellant, then such intention must be carried out unless it be in contravention of the State or Federal constitution. The same obMga- tion to perform contracts rests upon a municipal corporation as upon a natural person, unless a plain, clear provision in the charter provides otherwise. The statutory provision referred to authorized the high_ school to be discontinued ; but is it to be presumed, on the wording of this statute, that the legislature Intended to absolve the district from" tEis~liability to contractors or creditors whose rights had become vested? Sjachajaw, conceding that the legislature has the constitu tional right to enact it, would place persons contracting with municipal corporations on a basis so insecure that few would care to enter into" municipal contracts. Morris & Cummings v. State, 62 Tex. 728. Counsel for appellee contend that the same rule applies to this con- tract after it was repudiated by the vote of the people as would apply to an ordinary contract between individuals, — that is, they claim that the injured party has the right to pursue either of three remedies : First, to ti'eat the contract as rescinded and recover upon a quantum meruit so far as it has been performed ; or, second, to keep the con- tract alive for the benefit of both parties being at all times himself ready and able to perform it, and at the end of the time specified sue and recover under the contract; or, third, to treat the repudiation as putting an end to the contract for the purposes of performance and sue for the profits he would have realized if the contract had been completed. Lake Shore and 3fichigan Southern Railway Co. v. Rich- ards, 152 111. 59; Wells \. National Life Ass' n of Hartford, 53 L. R. A. 33, note h; 99 Fed. Rep. 222. We have no authority that passes on CHALSTRAN V. BOARD OF EDUCATION. 77 the precise question here involved. In Potts v. Supervisors, 25 Wis. 506, tiae court held that the repeal of a statute rendered nugatory an executory contract. The United States Supreme Court has held that section 10 of article 1 of the United States Constitution, prohibiting any State from passing a law impairing the obligation of contracts, applies as well to executory as executed contracts. Cooley's Const. Lim., 7th ed., p. 384. Said section 44 of the School law, as we have seen, became a part of this contract at the time of its execution. In this case app ellee recovered only for the profits t hat he proved he would have realized had he completed the contract. We do not find it necessary to consider or decide whether he would have been entitled, under the contract and statute, to go ahead and complete the high school building and then recover for the full amount. It is proper, however, to state that wise public policy would seem to sanction the course that was pursued. After the high school district was discon- tinued a completed high school building would be of little value to the township. Appellee's right to profits in this contract should not be taken from him without his consent, unless the right to do so is reserved in the contract or in the law, which is necessarily a part of the cou- ti-act. Cooley's Const. Lim., 7th ed., p. 392. Ordinarily the State is liable for prospective profits, on breach of contract, to the same ex- tent as an individual. Masterton v. Mayor, 42 Am. Dec. (N. Y.) 138, and note ; Danolds v. State, 89 N. Y. 36 ; 26 Am. & Eng. Ency. of law, 2d ed., p. 478, and cases there cited. If under this provision of the statute it was intended that appellee should have no right to the profits for that part of the contract which he had not completed, then his right to such profits would not be vested. We do not think it was so intended. Considering the various provisions of the High School law, we are disposed to hold that under the present wording of the statute, fairly construed, the high school district was liable, even after the vote to discontinue, for the profits that would have accrued to appellee had he completed his contract. The question still remains whether the action should have been brought against the board of trustees of the former high school district or against some other school official or board. Was the high school district absolutely abolished as soon as the vote was taken and can- vassed? This court has held that the effect of the dissolution of a mu- nicipal corporation by quo ivarranto proceedings was to destroy it as a public institution ; that thereafter it could neither sue nor be sued, con- vey property or make further contracts. Dochje v. People, 113 111. 491. It has also been held that the absolute repeal of a charter destroys all officers under it and puts an end to the tenure of office of the incum- bents. Crook V. People, 106 111. 237; People v. Brown, 83 id. 95; 28 Cyc. 256, and cases cited. Whatever the legislative intention with reference to the transactions into which said high school district has entered and which were then authorized by law, it was not intended that the high school authorities, after the vote to discontinue, could -i 78 CIIALSTRAN V. BOARD OF EDUCATION. -^T l.> origiuate new business, except that necessary to close up the affairs of the district. Greenivood v. Freight Co., 105 U. S. 13. The legislature has provided by statute how pnvate corporations shall close up their I business aflfairs, and has speci^aUy stated that such corpoi'ations shall ' be capable of prosecuting and defending suits, and that all remedies against such corporations, their stockholders or officers, for liabilities incurred previous to the dissolution, shall not be taken away or im- paired. Kurd's Stat. 1908, chap. 32, sees. 10-12, p. 526. The legis- lature could have made the same specific provisions with reference to municipal corporations, but it has not done so. It has been held that where public corporations have been absolutely dissolved without mak- ing any provision for the payment of their obligations, and where no municipal successor has been created, a creditor has only the faith of that legislature upon which to rely. Barkley v. Levee Comrs., 93 U. S. 558 ; Bates v. Grerjory, 89 Cal. 387. Yet this conclusion is reached by the courts with great reluctance and only when no other possible construction can be placed upon the legislature. Municipalities may have their boundaries modified, their names changed or one may be merged in another, or they may be divided and portions of their terri- tory annexed, but it will be presumed that the legislature intended that the liabilities as well as the rights of property of the corporation shall accompany it into the jurisdiction of the territory which annexes or in- corporates it. Mt. Pleasant v. Beckwitli, 100 U. S. 514; Shapleigh v. Sayi Angela, 167 id. 646. If the changes do not amount to an abso- lute dissolution, the remedies necessary for the collection of the debt of the creditor will remain in force. Mobile v. Watson, 116 U. S. 289. Where the rights of creditors are involved, the presumption is ex- tremely strong that the identity of the corporation continues notwith- standing different powers are possessed by the new organization and different officers administer its affairs. 1 Dillon on Mun. Corp., 4th ed., sec. 172. If there are in existence any assets in the hands of public officials and there are no remedies at law by which creditors can en- force the payment of obligations from such assets, courts of equity will take jurisdiction and direct the application of the taxes so collected to the use for which they were levied. "The ancient doctrine, that upon the repeal of a private corporation its debts were extinguished and its real property reverted to its grantors and its personal property vested in the State, has been so far modified by modern adjudications that a court of equity will now lay hold of the property of a dissolved corporation and administer it for the benefit of its creditors and stock- holders. The obligation of contracts, made whilst the corporation was in existence, survives its dissolution, and the contracts may be enforced by a court of equity so far as to subject, for their satisfac- tion, any property possessed by the corporations at the time. In the view of equity its property constitutes a trust fund pledged to the payment of the debts of creditors and stockholders, and if a municipal corporation, upon the surrender or extinction, in other ways, of its CHALSTRAN V. BOAED OF EDUCATION. 79 charter, is possessed of any property, a court of equity will equally take possessiou of it for the benefit of the creditors of the corporation." B)-oughto7i V. Pensacola, 93 U. S. 266 ; Meriwether v. Garrett, 102 id. 472 ; O'Connor v. Memphis, 74 Tenn. 730. It appears from the stipulation of facts that the taxes for the high school district levied for 1905 have been collected and are in the hands of the township treasurer, the proper official to hold them for the high school district when it was in existence and the proper official to hold , them for the present public authorities. We think these taxes, and i assets, if any, of the high school district, are properly subject to the r' payment of the legal obligations of said high school district. ' Did the legislature, by the act here in question, ai>thorize the high school officials to close up its affairs ? Said section 44 provides that after canvassing the vote, if found to be in favor of discontinuance, it shall be the duty of the trustees to discontinue the high school and turn all the assets of said high school over to the school fund of the township or townships interested therein, in proportion to the assessed valuation of the townships. In this case the high school district wa»- ^ in one town and the duty of turning over the assets would be compara- ■ tively simple, but if the high school district were formed of two or more townships or parts of townships, and had property, not in money, belonging to it, such as a high school building, then it would be neces- sary, before the assets could be divided among the various townships in proporton to the assessed valuation of such townships, that the trustees dispose, in some way, of the property. We think the legisla- ture intended by this statute that the trustees of the township high , school_ should not only have the power to divide the assets, but in order to divide them proportionately they should previously settle all i lial)ilities against the high school district. If this be the fair construc- tion of the statute, then, necessarily, the high school district could sue and be sued after the vote in favor of discontinuance. The funds col- lecfecl for the purpose of building this high school are properly in the hands of the township treasurer of the township in which the former high school district was located. They are, however, subject to the payment of this judgment in like manner as they would be if the dis- trict were still in existence. The board of education of the former township high school district was the proper defendant in this case. The judgment of the Appellate Court must therefore be affirmed. Judgment aMrmed. 80 \ an, 44.1 ^Jj^^^j;;^^^;]^^^^ Informations in tlie nature of quo xcarranto. ^*..j>y^^i, Q.«t«-^ ^^' Tliese~i5ro*ceedings are brought to test tbe right of the members of^"*^ Che boards of water commissioners, and of sewer commissioners of tha^^^" city of Detroit, to continue to hold their respective offices after th(Pl t^ taking effect of the act estabiisliing p, boai'd of public works; and'tt^^ the questions raised relate to the validity of said act. ^<^ The act- transfers to the board of public works all the powers,^t^~^ duties, and responsibilities of the old board of water commissioners^ ri the board of sewer commissioners, and of the commissioners of gradeSfXiB and plans. It gives the board charge and control of the constructionij^fcQ of all public buildings except school-houses, public sewers, drains, and i-\^^ ■water- works. It authorizes the board to take proceedings to tjon-l^^ demn propert}' by the right of eminent domain ; to contract for the/j,^ performaiice of the variou.s works confided to their charge, to employ r ■* workmen, to draw upon the proper funds for payment of expenses, ,^^2^ and to issue bonds in certain cases to obtain means for carrying on ^ , any of said works. -fl The first members of the board are appointed by the legislature, and^,^^^*^ in the act itself The3' are four in number, and are to hold b}' classi- J|^^^ fied terms of two, four, six, and eight years. All vacancies, whether by expiration of term of service or otherwise, shall be filled bv the com mon council of the cit}'.; and no person shall be eligible for said board -i who is not a freeholder in said cit3' and a qualified elector. a^^ CooLEY, J. [After discussing other points. j We have before ns a i^j legislative act creating for the cit} of Detroit a new board, which is to 7^ exercise a considerable share of the authorit}' usuall}' possessed by officers locally chosen ; to have general charge of the city buildings, property and local conveniences, to make contracts for public works on behalf of the cit}', and to do man}' things of a legislative character which generallv the common council of cities alone is authorized to do. The legislature has created this board, and it has appointed its mem-" bers ; and both the one and the other have been done under a claim of right which, unless I wholh' misunderstand it, would justify that body in taking to itself the entire and exclusive government of the cit}', and the appointment of all its officers, excepting only the judicial, 1 Three opinions omitted ; also the arguments. — Ed. 2 This statement of the provisions of the act is abridged from the opinion ol Christiancv, J., 24 Mich. p. 5.1-58, and p. 74. — Ed. ^ ,- ^...^^,..,„^,^ LE ROY V. HURLBUT. 83 c\7^^:^ for which, hy the constitution, other provision is expressly made. And tlie question, broadly and nakedh' stated, can be nothing short of this : Whether local self-government in this state is or is not a mere privilege, conceded by the legislature in its discretion, and which "may be^withdrawn at any time at pleasure? I state the question tiius ibroadly because, notwithstanding the able arguments made in this case, and after mature delil)eration, I can conceive of no argument in support of the legislative authority which will stop short of this plenary jiUtl sovereign right. Now, it must be conceded that the judicial decisions and law writers generally assert that the state creates the municipal bodies, endows them witii such of the functions of corporate life and entrusts them with such share in the local government, as to the legislative judg- ment shall seem best ; that it controls and regulates their action while they exist, subjects them to such changes as public polic}' ma^' dictate, and abolishes them at discretion; in short that t he corporate cn tj tieg '^''^^■''^v^ -^^^ are mere agencie s which tlie state employs for the conv enience oi Vv^Ok>uiL.a- government, clothing tlicm for the time being with a portion of its' - Jtl* LaJ»-«» ^rvereightyT-btit'Tecaning the whole or anj- part thereof whenever the i necessity or usefulness of the delegation is no longer a[)p;irent. Thisl"^. . . fr r^iiidi'istand to be the accepted theory* of state constitutional law as regards the municipal governments. We seldom have occasion to inquire whether this amplitude of legislative authority is or is not too strongly expressed, for the reason that its exercise is generalh' con- fined within such bounds as custom has pointed out, so that no ques- tion is made concerning it. But such maxims of government are very seldom true in an}' thing more, than a general sense; the}' never are an'dTi'^ver can be literalh' accepted in practice. Our constitution assumes tlie existence of counties and townships, and evidently contemplates that the state shall continue to be sub- divided as it has hitherto been ; but it nowhere expressly provides that every portion of the state shall have county or township organi- zations. It names certain officers which are to be chosen for these subdivisions, and confers upon the people the right to choose them ; but it does not in general define their duties, nor in terms preclude the legislature from establishing new offices, and giving to the incum- bents the general management of municipal affairs. If, therefore, no restraints are imposed upon legislative discretion be^'ond those specifi- cally stated, the township and county government of any portion of the state might be abolished, and the people be subjected to the rule of commissions appointed at the capital. The people of such portion might thus be kept in a state of pupilage and dependence to any extent, and for an}' period of time the state might clioose. The doctrine that within any general grant of legislative power by the constitution there can lie found authority thus to take from the people the management of their local concerns, and the choice, directly OI indirectly, of their local officers, if practically asserted, would be 3>'v^-^>.. -...^ u.: fl-r ,u^^\ ^^..^J^ ^^ ^^^^^ ■* V ^. fv.-f 84 LE KOY V. HURLBUT. somewhat startling to our people, and would be likel}' to lead here- after to a more careful scrutiny of the charters of government framed by them, lest sometime, by an inadvertent use of words, the}' might be found to have conferred upon some agency of their own, the legal authority to take away their liberties altogether. If we look into tiie several state constitutions to see what verbal restrictions have hereto- fore been placed upon legislative authority in this regard, we shall find them very few and simple. We have taken great pains to surround the life, liberty, and propert}- of the individual with guaranties, but we have not, as a general thing, guarded local government with similar protections. We must assume either an intention that the legislative control should be constant and absolute, or, on the other hand, that i there are certain fundamental principles in our general frame-work of Igovernment, which are within the contemplation of the people when \they agree upon the written charter, subject to which the delegations pf autliority to the several departments of government have been made. That this last is the case, appears to me too plain for serious contro- versy'. The implie d restr ic tions upon the power of the legislature, as regards local government, though their limits may not be so plainly defined as express provisions might have made them, are nevertheless , equally imperative in character, and whenever we find ourselves clearly I within them, we have no alternative but to bow to their authority. ' The constitution has been framed with these restrictions in view, and we should fall into the grossest absurdities if we undertook to con- strue that instrument on a critical examination of the terms employed, while shutting our eyes to all other considerations. The circumstances from which these implications arise are : First, that the constitution has been adopted in view of a system of local government, well understood and tolerablj' uniform in character, exist- ing from the verj' earliest settlement of the country, never for a mo- ment suspended or displaced, and the continued existence of which is assumed ; and, second, that the liberties of the people have generall}' been supposed to spring from, and be dependent upon, that system. DeTocqueville speaks of our system of local government as the American system, and contrasts it forcibh* with the French idea of centralization, under the influence of which constitutional freedom has hitherto proved impossible. — Democracy in America, chapter 5. Lieber makes the same comparison, and shows that a centralized government, though by representatives freely chosen, must be despotic, as any other form of centralization necessarily is. " Self-government," he says, " means every tiling for the people and by the people, con- sidered as the totality of organic institutions, constantly evolving in their character as all organic life is : but not a dictatorial multitude. Dictating is the rule of the army, not of liberty ; it is the destruction of individuality." — Civil Liberty and Self- Goo ernment, chap. 21. The writer first named, speaking of the New England township gov- ernment, whose system we have followed in the main, says : " lu this ?^^a¥^^^^'^ .. ^ LE EOY V. HURLBUT. 85 part of the" union the impulsion of pohtical activitj' was given in the - townships ; and it may ahnost be said tliat each of them originalh- formed an independent nation. AVlien the Idngs of England asserted their siipremaey, they were contented to assume the central power of the state. The townships of New England remained as they were before ; and, although they are now subject to the state, they were at first scarcely dependent upon it. It is important to remember that i they have not l)een invested with privileges, but that they seem, on the ' contrary, to have surrendered a portion of their independence to the i state. The townships are only subordinate to the states in those in-' terests which I shall term social, as they are common to all the citizens. They are independent in all that concerns themselves; and among the inhabitants of New England, I believe that not a man is to be found who would acknowledge that the state has any right to interfere in their local interests." — Democracy m America, uhi sujjra. Now, if this author is here speaking of the theory of our institutions, he is in error. It is not the accepted theory that the states have received delegations of power ft-om independent towns ; but the theory is, on the other hand, that the state governments precede the local, create the latter at discre- tion, and endow them with corporate life. But, historical Ij, it is as difficult to prove this theory as it would he to demonstrate that the \,"-OwA'vvvC- origin of government is in compact, or that title to property comes from occupancy. The historical fact is, that local govci-nments uni- versally, in this country, were either simultaneous with, or preceded, the more central' authorit}-. In Massachusetts, originally* a democracy, the two may be said to have been at first identical ; but when the colony became a representative government, and new bands pushed out into the Avilderness, they went bearing with them grants of land and authority for the conduct of their local affairs. — Hutchinson^ s Massa- chusetts Bay, ch. 1 ; 'Washburn's Jud. Hist, of JIass. ch. 1 ; Body of Liberties, §§ 62, 66, 72; Elliot's New England, Vol. A:, pp. 425, 427. But in Connecticut the several settlements originated their own governments, and^tHough these wert doubtless very imperfect and informal, the}' were sufficient for the time beirig, and the central government was later in point of time. — TrumbuWs Hist, of Conn.^ Vol. 1, pp. 132, 498; Palfrey's Nexo England, Vol. 1, p. 454. What the colony did was only to confer charters, under which the town authority would be administered within agreed limits, and possibly, with more regularity than before. In Rhode Island, it is also true, that township organization was first in ofcler of time. — Arnold's Hist., of E. I., ch. 7. This author justly remarks, that when the charter of Rhode Island was suspended to bring her under the dominion of Andros, " the American system of town governments^ which necessity had compelled Rhode Island to initiate fiftv years before, became the means of preserving the libertj' of the individual citizen when that of the state, or colonj', was crushed." — Vol. 1, p. 487. So in Ver-mont, the people not only, for a time, conducted QMC 86 LE ROY V. HURLBUT. all their public affairs in towns and plantations, tliroogh Committees, officers and leaders, nominally appointed and submitted to by general consent and approbation, but they carried on tiieir controversy witli New York for some years, witliout any other organization, — Wil- liams' Hist, of Vermofit, Vol. 2, p. 163. In New Jersey, as in Massachusetts, towns were chartered in connection with grants of land, and in some instances, those which were made by Nichols, adverse to the proprietar}-, were suffered to remain after his authority was superseded. — See instances in Jlul/ord's Hist, of N. J. p^^- 143-4. The charter to Lord Baltimore plainly recognized local gov- ernment in the provision requiring the laws and ordinances estab- lished to conform to the laws, statutes or rights of England. — Mozman's Hist, of Maryland, p. 290. And county authorities seem to have existed from the ver}- first, though their statutory- organiza- tion, if an}' they had, cannot be traced. — Bozman,p>p. 299-303. But it cannot be necessary to particularize further. The general fact was, that, whether the colonial or local authority should originate_ fii'st, depended entirely upon circumstances which might make the one or the other the more immediate need. But when both were once estab- lished the}' ran parallel to each other, as the}' were meant to do, for all time; and what Mr. Arnold says of Rhode Island, may be said generally of the eastern and middle states, that the attempt of the last two Stuarts to overthrow their liberties, was defeated 1)}' means of the local organizations. The scheme tried first in England, to take away the corporate charters in order to make the corporators more dependent on the crown, and to restrain them from political action in opposition to the court party, found, in America, the colonial chartei-s alone within the reach of arbitrary power ; and though these were taken away or suspended, it was only with such protest and resistance as saved to the. people the town governments. In Massachusetts, it was even insisted by the people's deputies that, to surrender local government was contrary to the sixth commandment, for, said they, "men may not destroy their political, any more than their natl^ral lives." So, it is recorded they clung to "the civil liberties of New England" as " part of the inheritance of their fathers." — Palfrefs Keio England, Vol. 3. pp. 381-883 ; Bancroft's U. S., Vol. 2, pp. 125-127; 3fass. Hist. Col., XXI, 74-81. The whole contest with Andros, as well as in New England, as in New York and New Jersey, was a struggle of the people in defense of the right of local govern- ment. "Everywhere," says Dunlap, "the people struggled for their rights and deserved to be free." — Hist, of N. Y., Vol. 1, p. 133 ; and see TrumbulVs Hist, of Conn., Vol. 1, ch. 15. I have confined this examination to the states which have influenced our own polity most ; but the same principle was recognized and acted on elsewhere. The local governments, however, were less complete in the states further south, and this, with some of their leading states- men, was a source of regret. Mr. Jefferson, writing to Governor Tyler LE ROY V. IIURLBUT. 87 O^^ff^ in 1810, speaks of the two great measures which he has at heart, one of which is the division of coiinti(;s into hundreds. " Tlicse little republics," he says, '' would be the main strengtTi of the great one. "We owe to them the vigor given to our revolution, in its commence-" ment, in the eastern states. . . . Could I once see this, I should consider it as the dawn of the salvation of the repubUc." — JeffersorCs Works^ Vol. 5, p. h'lb. Mr. Jefferson understood thoroughly the truth, so quaintly expressed by Bacon, when he said of a burden imposed as compared to one freely assumed, that "it may be all one - - to the purse, but it worketh diversely upon the courage." — ^' Such are the historical facts regarding local government in America. Our traditions, practice and expectations have all been in one direc- tion. And \vhen_we_go beyond the general view to inquire into the ' detailsof authorit}', we find that it lias included the power to choose \ in some form the persons wlio are to admiuist^ - - Y^^_''i \ I r» » "(FSmmunity of the benefit thereof. There may come a time when from *-^^. ^ I necessity the state must interpose. The state may change municipal'* ^"VAA***^' boundaries ; and then a division of the corporate property- may be needful. The state ira}' take away the corporate powers, and then the property must come to the stj te as trustee for the parties con- cerned. In either of these cases, undoubtedly, state action becomes essential ; and the property may be disposed of according to the legislative judgment and sense of justice ; but even then the appro- priation must have regard, so far as the circumstances of the case will admit, to the purposes for which the property was acquired, and the interest of those who were corporators when the necessity for state intervention arose. In view of these historical facts, and of these general principles, the question rr :!urs whether our state constitution can be so construed 9:M ,0« 1* C\ .^.■it ILz \ LE KOY V. IIUELBUT. 89 ;^Xn7N*j >^. VyA/'s-^^ as to confer upon the legislature the power to appoint for the munici- palities, the officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it ^^^. involves these consequences : As there is no provision requiring the legislative interference to be upon any general system, it can and ma}' be partial and purely arbitrary. As there is nothing requiring the persons appointed to be citizens of the locality, they can and maj' be sent in from abroad, and it is not a remote possibility that self-govern- ment of towns ma}' make way for a government by such influences as can force themselves upon the legislative notice at Lansing. As the municipal corporation will have no control, except such as the state may voluntarily give it, as regards the taxes to be levied, the buildings to be constructed, the pavements to be laid, and the conveniences to be supplied, it is inevitable that parties, from mere personal considerations, shall seek the offices, and endeavor to secure 1 J v-i from the appointing body, whose members in general are not to feel the burden, a compensation such as would not be awarded by the people, who must bear it, though the chief tie binding them to the interests of the people governed might be the salaries paid on the one side and drawn on the other. As the legislature could not be com- pelled to regard the local political sentiment in their choice, and would, , in fact, be most likely to interfere when that sentiment was adverse' to their own, the government of cities might be taken to itself by the party for the time being in power, and municipal governments might \ (^ easily and naturally become the spoils of party, as state and nationarl ^f\j ■ ^ offices unfortunately are now. All these things are not only possible,/ FiTTeiitirely within the range of probability, if the positions assumed on behalf of the state are tenable. It may be said that these would be mere abuses of power, such as may creep in under any system of constitutional freedom; but what is constitutional freedom? Has the administration of equal laws by magistrates freely chosen no necessary place in it? Constitutional freedom certainly does not consist in ex- emotion from governmental interference in the citizen's private affairs ; in his being unmolested in his family, suffered to buy, sell and enjoy property, and generally to seek happiness in his own way. All this might be permitted by the most arbitrary ruler, even though he allowed his subjects no degree of political liberty. The government of an oligarchy may be as just, as regardful of private rights, and as little burdensome as any other ; but if it were souglit to establish such a government over our cities by law, it would hardly do to call upon a protesting people to show where in the constitution the power to establish it was prohibited ; it would be necessary, on tlie other hand, to point out to them where and by what unguarded words the power had been conferred. Some things are too plain to be written. If this charter of state government which we call a constitution, were all there was of constitutional command; if the usages, the customs, the Tuaxims, that have sprung from the habits of life, modes of tliought, '■'^Kt^tVV 90 LE ROY V. HURLBUT. methods of trying facts b)- the neighborhood, and mutual responsi1)ility in neighborhood interests, the precepts which have come from the revohitions wliich overturned tyrannies, the sentiments of manly in- dependence and self-control which impelled our ancestors to summon the local eommunit\- to redress local evils, instead of relying upon king or legislature at a distance to do so, — if a recognition of all tliese .were to be stricken from the body of our constitutional law, a lifeless^ skeleton might remain, but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people, that which distinguishes it from the numberless con- stitutions, so called, which in Europe have been set ivp and thrown down within the last hundred years, many of which, in their expres- sions, have seemed equally fair and to possess equal promise with ours, and have onh- been wanting in the support and vitalit}- which these alone can give, — this living and breathing spirit, which supplies tho interpretation of the words of the written charter, would be utterly lost and gone. Mr. Justice Story has well shown that constitutional freedom means sometliing more than libert}' permitted ; it consists in the civil and political rights which are absolutely guarantied, assured and guarded ; in one's liberties as a man and a citizen, — his right to vote, his right to hold office, his right to worship God according to the dictates of his own conscience, his equalit}' with all others who are his fellow-citizens ; all these guarded and protected, and not held at the mercy and dis- cretion of an}' one man or of an}- popular majority. — Story ^ MisceU laneous Writings, 620. If these are not now the absolute right of the people of Michigan, they may be allowed more liberty of action and more privileges, but the}* are little nearer to constitutional freedom than Europe was when an imperial city sent out consuls to govern it. The men who framed our institutions have not so understood the facts. With them it has been an axiom, that our svstem was one of checks I ajjd-, balances ; that each department of the government was a check upon the others, and each grade of government upon the rest; and tliev have never questioned or doubted that the corporators in each municipality were exercising their franchises under the protection of certain fundamental principles which no power in the state could ovef-" ride or disregard. Tl}e_state may mould lpcal_ institutions according to its views of jiolicy or expediency' ; but local government is matter" of ab8oittts_jjghJ ; and the state cannot take it away. It would be [the boldest mockery to speak of a city as possessing municipal libert}' where the state not only shaped its government, but at discretion sent in its own agents to administer it ; or to call that system one of con- stitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all. What I say here is with the utmost respect and deference to the legislative department; even though the task I am called upon to perform is to give reasons why a blow aimed at the foundation of our LE ROY V. HUBLBUT. 91 strncture of libert}' should be warded off. Nevertheless, when the state reaches out and draws to itself and appropriates the powers which from time immemorial have been localh' possessed and exercised, and introduces into its legislation the cent ralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alone Has flourished, we seem forced back upon and compelled to take up and defend the plainest and most primary axioms of free govern- ment, as if even in Anglican liberty, which has been gained step by step, through extorted charters and bills of rights, the punishment of kings and the overthrow of dynasties, nothing was settled and nothing establislied. But I think that, so far as is important to a decision of the case* before us, there is an express recognition of the right of local author- ity by the constitution. That instrument provides {Art. JTF"., § 14) that "judicial officers of cities and villages sliall be elected ; and all otherl officers shall be elected or appointed, at such time and in such manner as the legislature may direct." It is conceded that all elections must, under this section, be by the electors of the municipalit}'. But it is to be observed that there is no express declaration to that effect to be found in the constitution ; and it may well be asked what there is to localize the elections an}- more than the appointments. The answer must be, that in examining the whole instrument a general intent is found pervading it, which clearly indicates that these elections are to be by the local voters, and not by the legislature, or by the people of a larger territory than that immediately concerned. I think also that when the constitution is examined in the light of previous and con- temporaneous history, the like general intent requires, in language equally clear and imperative, that the choice of the other corporate officers, shall be made in some form, either directl}' or indirectlj-, by the corporators themselves. The previous histor}' I have sufficiently referred to ; and it is a part of the public histor}- of the times that the corn-ention which framed the constitution of 1850 had in view as prominent objects, to confide more power to the people, to make officers generall}' elective, and to take patronage from the executive. "We see this in the provisions for the elections of judges, state officers, regents of the university and pro- secuting attorneys ; in the requirement that banking laws shall be referred to the people for adoption; in the exclusive control given to the supervisors in the settlement of claims against counties, and in the express provision that " the legislature ma}' confer upon organized townships, incorporated cities and villages, and upon the boaids of supervisors of the several counties, such powers of a local, legislative and administrative character as the}' may deem proper." All these were in the direction of popularizing authorit}*. Even the officers who were to perform the duties of master in chancer}- were required to be elected. "When, therefore, we seek to gather the meaning of the con- Btit Uiou from " the four corners of the instrument," it is impossible. U '^ V-'\-M, 'pti-\:;^^: "■V^ 92 COMMONWEALTH V. MOIR. to conclude that the appointments here prescribed, in immediate con- nection with elections b}' the local voters, and b}' a convention intent on localizing and popularizing authority, were meant to be made at the discretion of the central authorit\-, in accordance with an usage not prevalent since the days of the Stuarts, and which even then was regarded, both in England and America, as antagonistic to libert}' and subversive of corporate rights. So far, then, as the act in question undertakes to fill the new offices with permanent appointees, it cannot be sustained, either on general principles, or on the words of the constitution. [The learned Judge then discussed the question whether the legis- lature might make provisional appointments to put the new system in operation, and whether the first members named in the act would rightfuU}- hold office as provisional incumbents until appointees were named by the common council. He answered these questions in the affirmative, and held that the persons named in the act were entitled^ to the office as provisional appointees. Campbell, C. J., Ciiristiancy, J., and Graves, J., also delivered opinions. They all concurred in the view that the legislature could not appoint members of the board of public works as permanent officers for the full term. On the question whether the legislative appointments coiild be sustained as a provisional measure, Christiancy, J., concurred with CooLEY, J., in holding the affirmative. Campbell, C. J., and Graves, J., held C07itra.^\ 0A^-fc4- -t-Mrr^ -^u-dt; ol AXA'v>-> COMMONWEALTH v. MOIR. ^'"T"^ ^u 1901. 199 A;. 534. ~ ^r*^ Quo WARRANTO to determine the right of respondent to the office of '" r ecord er of the city of Scranton.^ Mitchell J. Municipal corporations are agents of the state, ifli^ ) ^ vested with certain subordinate governmental functions for reasons of (A-'t*-!, convenience and public policy. They are created, governed, and the cre-vN^ extent of their powers determined by the legislature, and subject to /^Pv* change, repeal, or total abolition at its will. They have no vested ,<_ - rights in their oflflces, their charters, their corporate powers, or even _^ their corporate existence. This is the universal rule of constitutional ,, * law, and in no state has it been more clearly expressed and more uni- 7j , formly applied than in Pennsylvania. In Philadelphia v. Fox^ 64 Pa. \>\ ^ 169, 180-81, this court, speaking through Sharswood, J., said: "The ?jv\.^ city of Philadelphia is a municipal corporation, that is a public corpo- ration created by the government for political purposes, and having subordinate and local powers of legislation. ... It is merely an ^ Arguments and part of opinion omitted. — Ed. COMMONWEALTH V. MOIR. 93 agency instituted by the sovereign for tlie purpose of carrying out in detail the objects of government, essentially a revocable agency, hav- ing no vested right to any of its powers or franchises, the charter or act of erection (creation ?) being in no sense a contract with the stateT" and, therefore, fully subject to the control of the legislature who may enlarge or diminish its territorial extent or its functions, may change or modify its internal arrangements or destroy its very existence with the mere breath of arbitrary discretion. . . . The sovereign may continue its corporate existence and yet assume or resume the appoint- ments of all its officers and agents into its own hands ; for the power which can create and destroy can modify and change." The fact that the action of the state towards fts municipal agentsj may^beunwise, unjust, oppressive, or violative of the natural or polit-i ical rights of their citizens, is not one which can be made the basis of 1 action by the judiciary. " The rule of law upon this subject appears ' to be that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to ntitural justice or not in any particular case, j The courts are not the guardians of the rights of the people of the^ state, except as those rights are secured by some constitutional pro- vision which comes within the judicial cognizance. The protection against unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the repre- sentatives of the people. If this fail, the people in their sovereign capacity can correct the evil ; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power. ... If the courts are not at liberty to declare statutes void_» because of their apparent injustice or impolicy, neither can they do so because they appear to the mind of the judges to violate fundamental prinejpk's of republican government, unless it should be found that, these principles are placed beyond legislative encroachment by the 1 constitution." Cooley on Constitutional Limitations, ch. 7,~secr 4' (6 ed. 1890, p.^^^l). "If the legislature should pass a law in plain, unequivocal and ex- plicit terms within the general scope of their constitutional powers, I know of no authority in this government to pronounce such an act void, merely because, in the opinion of the judicial tribunals, it was contrary to principles of natural justice, for this would be vesting in the court a latitudinarian authorit3% which might be abused, and would necessarily lead to collisions between the legislative and judicial de- partments, dangerous to the well being of society, or at least not in harmonv with the structure of our ideas of natural srovernment." Rogers, J., CommomoeaJth v. MrClosh-y^ 2 Rawle, 374. "It is no part of our business to discuss the wisdom of this legisla- tion. However vicious in principle we might regard it, our plain duty 94 COMMONWEALTH V. MOIR. is to enforce it provided it is not in conflict with the fundamental law." Scowden's ajyjyeal, 96 Pa. 422. This subject will be further discussed with reference to our own cases, in considering the argument that the statute violates the spirit of the constitution. Nor are the motives of the legislators, real or supposed, in passing the act, open to judicial inquiry or consideration. The legislature is the lawmaking department of the government, and its acts in that capacity are entitled to respect and obedience until clearly shown to be in violation of the only superior power, the constitution. " It is urged that the act before us was not passed for this purpose " (as a police regulation) "but as its title expresses, 'to provide for cases where farmers may be harmed by such railroad companies ' and it is contended that this shows conclusively that it was the design of the legislature to impose this new burden upon the railroad company for the benefit of the landholders and not for the security of the traveling public. . . . We cannot try the constitutionality of a legislative act by the motives and designs of the lawmakers, however plainly ex- pressed. If the act itself is within the scope of their authority it must stand, and we are bound to make it stand if it will upon any intend- ment. It is its effect not its purpose which must determine its validity. Nothing but a clear violation of the constitution, a clear usurpation of power prohibited, will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void." Shar-^wood, J., in Penna. R. R. Co. v. Riblet, 66 Pa. 164, cited with approval b}' the present chief justice in Com. v. Keory, 198 Pa. 500. "The merits of the act of March 22, 1877, in relation to cities of the second class . . . are not a subject for our opinion. The only question before us in these cases is upon the power of the legislature to pass this law." Kilgore v. Magee^ 85 Pa. 401. It ought not to be necessary to restate principles so fundamental, nor to cite authorities so familiar and so long established. But the range of the argument, and the energy with which it was pressed have seemed to make it proper to set forth clearly the only question before the court, the constitutionality of the statute in question. Much of the argument and nearly all of the specific objections advanced, are to the wisdom and propriety and the justice of the act, and the motives sup- posed to have inspired its passage. With these we have nothing to do, they are beyond our province and are consideration to be addressed solely to the legislature. This court is not authorized to sit as a council of revision to set aside or refuse assent to ill-considered, unwise or dangerous legislation. Our only dut}' and our only power is to scru- tinize the act with reference to its constitutionality, to discover what if any provision of the constitution it violates. We proceed therefore to the consideration of the specific objections made. Of_ tlie ohjootion that the citizens are deprived of an opportunity of electing the chief executive, it is sufficient to say that there is no con- COMMONWEALTH V. MOIR. 95 stitutional ri only to the department of 4)QUce. The maintenance of peace and quiet aM"~the suppression of crime and immorality are matters of general in- terest, and to the attainment of these ends the cities and towns are largely subject to legislative control. As the commonwealth is a unit in respect to its interest in such matters, the regulation thereof is a proper subject of legislation, and whether cities and towns in respect to these matters shall have a centralized or de-centralized form of government is a political question with which the courts have nothing to do. Matters of general interest are not necessarily required to be sub- mitted to the judgment and discretion of the people of the locality. So far as principle is concerned, it is no objection that the State, while imposing upon cities and towns the burden of supporting their police organizations, designates its own agencies to make its plan efficient. The essential elements of what is known as the metropolitan police system in the government of municipalities have been so often vindicated as against constitutional objections that the questions should now be considered at rest. State ex rel. v. Kolsem (1892), 130 Ind. 434, 14 L. R A. 566 ; State ex rel. v Fox (1902), 158 Ind. 126, 56 L. R. A. 893 ; People v. Draper (1857), 15 N. Y. 532 ; Peoples. Shepard (1867), 36 N. Y. 285 ; People v. Mahaney (1865), 13 Mich. 481 ; People v. Common Council, etc. (1873), 28 Mich. 228, 15 Am. Rep. 202; Gooch V. ^xefer (1900), 70 N. H. 413, 48 Atl. 1100, 85 Am. St. 637; Mayor, etc. v. State (1859), 15 Md. 376, 74 Am. Dec. 572 ; Commonwealth v. Plaisted (1889), 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. 556; State v. Covington (1876), 29 Ohio St. 102; Police Corn. v. City of Louisville (1868), 3 Bush (Ky.), 597; State ex rel. v. St. Louis County Court (1864), 34 Mo. 546 ; State v. ^imier (1888), 38 Kan. 578, 1 Part of the opinion is omitted. — Ed. ST. LOUIS POLICE COMMISSIONERS V. ST. LOUIS COUNTY COURT. 101 17 Pac. 177; State ex rel. v. .S'eauev/(1887), 22 Neb. 454, 35 K. W. 228; 2 Cooley, Taxatiou (3d ed.), 1295, 129G; 1 Dillon, Muu. Corp. (4th ed.), § GO; 2 Smith, Muu. Corp., § 1378.^ ^ STATE EX KEL. ST. LOUIS POLICE COMMISSIONERS v. ST. LOUIS COUNTY COURT. 1864. 34 Mo. 546. ^^ Bates, J.^ The General Assembly, by an act approved March 27, 1861, "established within and for the city of St. Louis, a board of police, to be called the Police Commissioners of the city of St. Louis." J,, This board was charged with the duties within the city of St. Louis, ^ to preserve the public peace, prevent crime and arrest offenders ; pro- S . tect the rights of persons and property ; guard the public health ; (>>ls-<„ preserve order at every public election and all public'^eetings and g. places, and on all public occasions; prevent and remove nuisances in all streets, highways, waters and other places ; provide a proper police ^ . force at every firefor the protection of firemen and property ; protect rv*<\ emigrants and travellers at steamboat landings and railway stations ; see that all laws relating to elections and to the observance of Sunday, 1 s and regulating pawnbrokers, gamblers, intemperance, lotteries and ' ' ^ lottery policies, vagrants, disorderly persons, slaves and free negroes, IfJ^ and the public health, are enforced ; and also all laws and ordinances |o.^^J^^ of the city of St. Louis which may be properly enforceable by a police , force. ii^v\ To enable the board to perform these duties it was authorized to em- i^,^. ploy a permanent police force, the officers of which were designated by tne act, and the pay of officers and ordinary policemen fixed by it. <(p^ The board was authorized to provide such office and furniture and ^ r-fr- such clerks and subordinates as it might need, and to have and use a ^^^commou seal, and to provide station houses and requisites for the same. It was also authorized in extraordinary emergencies to raise * " The several towns and cities are agencies of government largely under the con- trol of the Legislature. The powers and duties of all the towns and cities, except so far as they are specifically provided for in the Constitution, are created and defined by the Legislature, and we have no doubt that it has the right in its discretion to change the powers and duties in officers appointed by the Governor, if in its judg- ment the public good requires this, instead of leaving such officers to be elected by the people or appointed by the municipal authorities." Mortox, C. J. in Com. v, Plaisted, 148 Mass. 375, 386. See Ecker son y. Pes Moines, 137, la. 452_; Ratkbone v. Wirth, 1-50 N Y 459; Ex parte LewTsTlb Tex. Cr. T ~ 2 Arguments omitted. — Ed. r- rT-~ ^\x^t:x v/i.^. % Xw. C^ ^ ' ' — A.*-X>fiOJ-v V. fi 102 ST. LOUIS POLICE COMMISSIONERS V. ST. LOUIS COUNTY COURT. such additional force as the exigency may demand for the preserva- tion of the public peace and quiet, and to require the sheriff of the county of St. Louis to act under their control, and, if ordered by them to do so, to summon the posse comitatus, and employ suchpos.se subject to their direction. They were also authorized to call to their aid any military force, lawfully organized in the city, and they were authorized to make arrests in any part of the State. Th_e cjiy of St. L ouis w as de- prived of all control over the police. T he co mmissioners were a uthor- ized to make requisitions upon the city of St. Louis, from time to time, for such sums of moiiey as they might deem necessary for executing their duties, which the city was required to pay. The General Assembly by another act, approved December 12, 1863, increased the pay of the policemen, and also provided for an in- crease of their number. This act also required the city of St. Louis to pay the requisitions of the commissioners for the additional expense and limited the whole amount of appropriations for police purposes to 6175,000. The General Assembly by another act, approved February 5, 1864, enacted as follows : . " Sec. 3. The county of St. Louis shall be chargeable with one- fourth of the whole expense of the police force of said city of St. ^^^\ Louis for the year 1864, and for each year thereafter; and the County *.*o\. M*- Court of said county shall from time to time appropriate money out of -' the county treasury to meet that proportion of said expense; and whenever the said Board of Police Commissioners shall need money to meet the expenses of said police force, they shall make requisition upon •^ ^ said county, for one-fourth, and upon said city for three-fourths thereof." On the 18th day of February, 1864, the Police Commissioners made a requisition upon the county of St. Louis for seven thousand dollars, for one-fourth of the said police expenses for the months of January and February, in the year 1864, which the County Court refused to allow or to make any appropriation for. The Police Commissioners then applied to this court for a ^nandamus, commanding said County Court to pay said sum and make an appropriation therefor. A con- ditional mandamus having issued, the County Court made return to it, that 1. The act of February 5, 1864, is in violation of common right and of the Constitution of the State, in that it appropriates private property witliout just compensation; that it is retrospective in its operation, and that it violates the principles of taxation as laid down in the Constitution. 2. There is no money in the county treasury that can legally be appropriated to pay the same, the money in the treasury having been raised by taxation prior to the passage of said act and for certain specific purposes set forth in the order for the assessment and levy of ST. LOUIS POLICE COMMISSIONEKS V. ST. LOUIS COUNTY COURT. 103 the taxes from which such funds were derived, and caunot be diverted from the purpose for which they were collected ; that it would be ne- cessary to levy a special tax to pay said police force, and no such special tax can be levied without first making application to the/ General Assembly for permission to do so. 3. The sum of money required is sought to be recovered and applied for the purpose of paying a debt already incurred by said Police Com- missioners or the city of St. Louis prior to the passage of said act, and in so far said act is retrospective in its nature, and is inoperative and void. 4. It is not stated or shown to this court what the expense of said police force has been or will be for the year 1864, or that the city of 8t. Louis has made the appropriations contemplated by said act. 5. The expense of said police for the months of January and Feb- ruary, 1864, had already been paid in the manner provided by law at the time of the passage of said act, and of the issuing of said writ. L In respect to the first cause assigned, why a peremptory manda- mus should not issue, that is, that the act of February 5 is repugnant to the Constitution, — it is said to violate the Constitution in three respects, which will be examined in the order in which they are stated. The first is, that it is an appropriation of private property without just compensation. I remark in the first place that the act does not designate any particular fund (described by the source of its deriva- tion or otherwise) which is made chargeable with this expense. It says that the county of St. Louis shall be chargeable with one-fourth of the expense of the police force of the city of St. Louis, and that the County Court shall appropriate money to pay it. It is therefore im- material, in considering of the constitutional authority of the General Assembly to pass the act in question, to inquire how the county has acquired or may acquire the money necessary to make the payments required by the act. The money belongs to the county by virtue of acts of the General Assembly, and is expended under the direction of the same authority. Counties are subdivisions of the State, in which some of the powers of the State Government are exercised b}' local functionaries for local purposes, in this instance and generally the functionary being the County Court. The funds of the county are not strictly private property. They certainly do not belong to the citizens who may have contributed them. They are rather public pro- perty, the property of the State acquired from the people and the, property in the county, and to be used and expended for the benefit of the same people and property. The General Assembly, havin^ the legislative power of the State, determines to what local uses the county funds shall be applied. Its determination and direction may operate unwisely, harshly and unjustly, but that is no argument against its power to direct. It authorizes and causes the funds to be collected, and requires their expenditure for purposes which it determines to be i (JVVf 104 ST. LOUIS POLICE COMMISSIOXEKS V. ST. LOUIS COUNTY COUKT. , of local interest and benefit, and its deteiTnination is final. The judi- \/<3iary cannot review this determination of the legislative power ; cannot ."" -• ■ ■<. inquire whether the Legislature, in directing an expenditure of county "^-^TrtY"^ funds, judged correctly or not as to its being for the accomplishment of an oljject of interest or advantage to the inhabitants of the county. ^-wa' ' In the present case the Legislature has thought proper to direct that SVt*»!^«-v the county of St. Louis shall pay one-fourth of the expenses of a police in the city of St. Louis, which is wholly within and forms a part of the county of St. Louis. This court cannot say that this is not a legiti- mate use of county funds, or that it is a taking or application of pri- vate property to public use without just compensation, and it certainly is not an application of property to private use, for the^olice com- missioners are an ageucy.of the State Government, and required to perform within a specified locality some of the most important duties of the government. 2d. The act is said to be retrospective in its operation, in that it requires the county to pay a proportion of the expense of the police force for the whole year 1864, when a portion of that year had elapsed at the time the act was passed, February 5. No vested right is taken away or impaired by the act, nor does it impair the obligation of any contract. It simply directs the application to a particular pur- pose of funds collected by the authority of the Legislature, and over which the Legislature could exercise a power to direct their application within certain limits, which include the object for this act. The prev ious acts of the Legislature which provided the objects for which county funds could be expended, were at all times subject to repeal or altera- tion, so as to appropriate the funds in a manner, or to objects different from those before provided. No rights had been vested under the pre- vious acts which can be disturbed by this act. This act is not retro- spective in its operation. 3d. The act does not violate the principles of taxation as laid down in the Constitution. This point is fully covered by the decision of this court in the case of Hamilton and Treat against the St. Louis County Court, 15 Mo. 3, which case is also of authority upon the other points decided. The case of Wells v. The City of Weston, 22 Mo. 384, merely decides that the General Assembly cannot authorize a municipal corporation to tax for its own local purposes lands lying beyond the limits of the corporation, and does not conflict with this case. II. As to the second cause shown in the return, it is understood to mean, not that there is in fact no money in the treasury to pay this ^ u-o lf.'^f■v^ requisition, but that as a matter of law all the money which is in the treasury was collected for specific purposes from which they cannot l^^j^A^JS^ be diverted. The specific purposes for which the money was collected \ .^-oi^'^-' were those heretofore directed by the Legislature, and this act being Vr^ a later expression of the will of the Legislature controls the subject, and, so far as it conflicts with previous acts, repeals them. rf^ CITY OF OSIIKOSH V. HABEN. 105 The county is not a private corporation, but an agency of the State Government, and though as a public corporation it holds property, such holding is subject to a large extent to the will of the Legislature. Wbilstjt he Legislature c annot take away from a county its property, ^ it h as full powex to direc t the mode in which thej^roperty shall be used q. ^ for the lionofit of the county. ' ^ III. Tiie third cause assigned is included in the previous allegation, that the act is retrospective in its operation, IV. As to the fourth cause assigned, the act does not requii*e that the commissioners shall show to the county at any one time what is, or will be the whole expense for a year, but only that the county shall from time to time make appropriations to pay the requisitions of the commissioners, thus showing an expectation that the requisitions will be made at several different times. jSTor does the county's liability at all depend upon the fact, that the city has or has not paid its liability. V. The fifth cause is based upon the same idea as the third, and has been considered as it was presented in the first. No good cause having been shown why the county should not pay the requisition of the Police Commissioners, let the peremptory ■mandamus issue. Judges Bay and Dryden concur. X■ — A vjO-c-e ^OTV'.C^^ .-It >^p ^i^'^ATE OF WISCONSIN, ex rel. BOARD OF EDUCATION ^kCJo^ _snL^^ ^^^ ^^^^ ^^ OSHKOSH v. HABEN. Q (^..JiN-^^^^ 1868. 22 Wisconsin, 660.^ Appeal from the Circuit Court. Alternative i/ntndamus to require the cit}' treasurer of Oshkosh to pay orders drawn by the board of education in favor of Alger, a con- tractor on the high school building. B3- an act passed in 1866, the board were authorized to raise, by special tax, monej' for the erection of a high school building ; and were also authorized, if in their judg- ment it was necessary, to appropriate the money so raised to the purpose of establishing a state normal school in said city. The said act further empowered the board to raise, by special tax, money for the establishment of a state normal school. Under a resolution of the board, money was raised by taxation for a high school' building, and was paid over to the city treasurer. The board did not set apart any of this money for a normal school, nor did they raise any money b\' taxation for a normal school. In 1867, an act was passed providing, ^ Statement abridged. Arguments omitted. — Ed. 106 CITY OF OSHKOSH V. HABEN. i^'- in substance, that $10,000 of the mono}' raised b}- the said tax in 18G6 sliall be retained in the city treasurj-, and that the purcliase mone}' for the site selected for a normal school in said city shall be paid out of said $10,000 when the title of said site shall be approved by tiie regents of the normal schools. Motion to quash the writ of viandamus. Motion denied. De- fendant ap[)ealed. Jackson ib Ilalsay, for appellant. Freeman (jb Haucocl:, for relators. Dixon, C. J. This case presents two questions, which may be stated tlius : 1. Was tlie defendant justified in refusing payment of the orders set forth in the alternative writ? 2. If he was not, are the relators the proper parties to apply to the court for a writ of manda- mus to compel him to pay them? The answer to the first question depends on the validit}' of so much of section 1, chap. 348, Private and Local Laws of 1867, as sets apart and retains in the treasurj- of the city of Oshkosh, or attempts so to do, the sum of ten thousand dollars out of the tax levied in the year 186G under the authority- conferred by chapter 236, Private and Local Laws of 186G, entitled '' An act to authorize the board of educa- tion of the citj" of Oshkosh to kny a tax to build a school-house," ■which said sum of ten thousand dollars, so to be set apart and re- tained, was to be paid out as the purchase money for the site for a normal school in said cit^*, to be selected and the title approved and accepted by the board of regents of normal schools. The tax levied in the vear 1866, of which this sum of ten thousand dollars was a portion, was, in the words of the act b}- which it was authorized, levied "to be used for the purpose of erecting a suitable high school building in said cit}-." It was lawfully so levied. It is true that the board of education of the city of Oshkosh, under whose direction the lev}' was made, were authorized to raise a portion of the sum or sums specified in the 6th section of the act " for the purpose of aiding in the establishment of a state normal school in said city." This authority was, however, purely discretionarv ; and as the board of education saw fit not to raise an}- money for that purpose, the inquir}- is the same as if no such authority had been conferred. The ^ueslion then (is : Was it competent for the legislature, without the assent of the cit}'^ or its inhabitants, thus to divert the funds raised and in the hands "of the treasurer for the purpose of erecting a suit£ihle high school build- ing, and to declare that they should be a[)propriated, not for that purpose, but for the purpose of purchasing the site for a state normal school in the city? We are clearly of opinion that it was n ot. It Ts well settled as to all matters pertaining to vested rights of property, ■whether real or personal, and to the obligation of contracts, that municipal corporations are as much within the protection of the federal constitution as private individuals are. The leo:is]ature cannot divest a municipal corporation of its property, T without the consent of -i-*tv?>-^ ,S^^ CITY OF OSHKOSH V. HABEN. 107 ■ l '^ its inhabitants, nor impair the obligation of a contract entered into\_ c^^iLr^-» wTth oFin behalf of such corijoralion. See Jlilioaukec v. JIilwaukee,\/^ Oe^ 12 Wis., 'J3, and authorilies cited. What was the act in question but ^ ■ a most obvious attempt, at the mere will of the legislature, to deprive the city of Oshkosh of so much money lawfully acquired for a proper municipal purpose, and, without the assent of the inhabitants, to apply it to another purpose, not municipal, but one in which all the people of the state have a corauion interest? Clearly no other effect ,>— a ^y^ can be given to it. A state normal school,. as its name indicates, is a/ } n state institutio n establ ished for the benefit of the people of the entire/ ^^^J^T^ state and "maintained by funds provided by the state. This will J^^^^^jj', readTlj- appear frolii^~an examination of the several statutes unde^ V-^f^^^i-— which those schools are organized, and which prescribe the powers and duties of the board of regent? of the same. R, S. ch. 22 ; Laws of 1859, ch. 94; Laws of 1865, ch. 537; Laws of 18GG, ch. 116. . The i-egents are appointed by the governor by and with the approval J T''g*^ -. of the senate, and the title of the lands, buildings, furniture, books, I 'V^"""*"'^ apparatus and all other property and et!'ects, is vested in the board, I ^^W"**"^ which has the exclusive management and control of the same. To j ^)V^^ sa}', therefore, that the legislature can, without the assent of the V^ proper municipal authorities or of the inhabitants, take tlie mone}' of ^ the city of Oshkosh and a[)propriate it to the establishment of a state normal school, is to say that it can take the money of any municipal corporation, and appl}- it to an}- general state purpose. If the act had directed the mone}* in question to be deposited in the state treasury] as part of the general fund belonging to the state, or had appropri- ated it toward the completion of tlie state capital now in process of construction, the violent nature of the proceeding might have been more manifest, but it would not have been more unauthorized. The advantages incidentally accruing to the citizens of Oshkosh from tlie j_^^^ -*^ establisTiment of a state normal school at that place, though sufficient, * y^^-*-^ ^ with the consent of the legislature, to justify the citizens themselves, oFHie "proper municipal officers, in levying a tax to aid in the pur- chase of a site or the erection of buildings, do not change the nature oniie question here presented. The tax so levied must be witii the assent of the citizens or proper city officers. Tlie legislature has no (t^.^^^ power arbitrarih' to impose such a tax, as that would not only be in plain conflict with the rule of uniformity in taxation prescribed by the constitution, but contraiy to the general principles of law governing such proceedings. If, therefore, the legislature cannot impose a tax v^ for such a purpose, it follows that it cannot for the same purpose r^^.^-^^^^ arbltrarilv appropriate the money of the city already lawfully .raised • b}' taxation for another. As well might the legislature, without the assent of the city, appropriate the high school building itself, after its completion, for a state normal school, as seize the funds provided by the citj' for tlie purpose of erecting it. This, we think, would be regarded by ever}- one as wholl}' unjustified b}' any sound principle oi •v. !^ Ox^ 108 DARLINGTON V. MAYOR &C. OF NEW YORK. legislation — a mere act of lawless violence. The act in question, though the injustice of it may not be quite so apparent, in realit}' stands on no better foundation. 2. Are the relators the proper parties to applj" for this writ? We think not. [On the latter ground the order below was reversed.] - — c>J^ DARLINGTON v. MAYOR «fec. OF NEW YORK^^' 1865. 31 iVew Yori, 164.1 --J^ DAKLINGTON V. MAYOR &C. OF NEW YORK. 113 of a parcel of land not adapted to an}- municipal use, but valuable onki y'*25==!>^ for sale to private persons for building purposes, or the like. No one, I v,*-^ ■- I think, can doubt but wliat it would be competent for the legislature! •., to direct it to be sold, and the proceeds to be devoted to some munici- | V\7'vv>j^ rCt^N>>. pal or other public purpose, within the cit}', as a court house, a hospital, or the like ; and 3et, if the argument on behalf of the defendants is sound, it would be the taking of private property for public use with- out compensation, and the act would be void. What has been actuallv done respecting such city property, in the present case, if a judgment for riot damages has the effect which the argument supposes, and which I attribute to it, is to render it liable to sale on execution, to satisfy a liability of the city arising under the riot act ; and this has been done under the express authority of the legislature. The vice of the argument of the defendant is, that it assimilates the condition of the city, in respect to the property to which it has title, to that of an individual or a private corporation, and denies to tlie legislature any power over it which it would not possess over the fortunes of a private citizen. In respect to its powers, the corporate bod}' is understood to be the trustees of the people represented by the supreme legislative power of the State, but in regard to its property it is argued that there are no beneficiaries. The property, it is insisted, is private, and hence the legislature has no legitimate control over it. But in what sense can this cit}' property be said to be private? It certainly does not belong to tlie mayor or any or all of the mem.bers of the common council, nor to the common people as individual propert}'. {Hoosevelt v. Draper, 23 N. Y., 318.) If one of these functionaries should appropriate it or its avails to his own use, it would be the crime of embezzlement, and if one of the peoi)le not clothed with ofBcial station should do the like, it would be the offense of larcen}-. Sliould it be said that like all corporate property', it belongs to the ideal being, the corporation, and that its title is beneficial and not fiduciary, that answer would not avoid the difficulty. Indeed it would not be sound. A corporation, as such, has no human wants to be supplied. It cannot e^t or drink, or wear clotliing, or live in houses. It is the representative or trustee of somebody, or of some aggregation , of persons. We cannot conceive the idea of an aggregate corporation] which does not hold its property and franchise for some use, public or I private. The corporation of Dartmouth College was held to be the' trustee of the donors, or of the youth needing education and moral and intellectual training. The corporation of New York, in my opinion, is nTWyuirvv ^^'^ the trustee of the inhabitants of that city. The property, in a general I '-iXSui^'*-*' ' and substantial, although not a technical sense, is held in trust for \yr3i\^^^<^ them. They are the people of this State — inhabiting that particular subdivision of its territory — a fluctuating class constantly passing out 8 114 BULKELEY V. WILLIAMS. of the scope of the trust b}' removal and death, and as constantly renewed b}' fresh accretions of population. It was granted for their use and is held for their benefit. The powers of local government com- mitted to the corporation are precisely of the same character. They were granted and have been confirmed and regulated for the good government of the same public, to preserve order and obedience to law, and to ameliorate and improve tlicir condition and subserve their con- venience as a community. There are a few cases which countener, 15 N. Y. 532, 543; People v. Flagg, 46 N. Y. 401, 404; Common- wealth V. Plaisted, 148 Mass. 375, 19 Northeastern Rep. 224. The Constitution of Connecticut was ordained, as its preamble de- clares, b}- the people of Connecticut. It contemplates the existence of towns and counties; and without these the scheme of government, which it establisiied, could not exist. It secured to these territorial subdivisions of the State certain political privileges in perpetuity, and among others the election by each county of its own sheriff, and by each town of its own representatives in the General Assemblv, and its own selectmen and such officers of local police as the laws might pre- scribe. It secured them, because it granted them ; not because they previously- existed. Towns have no inherent rights. The}' have al- waN's been the mere creatures of the Colon}' or the State, with such functions and such only as were conceded or recognized by law. Webster v. Ilaricinton, 32 Conn. 131. The State possesses all the powers of sovereignty, except so far as limited by the Constitution of the United States. Its executive and judicial powers are each dis- tributed among different magistrates, elected some for counties, and some for the State at large ; but its whole legislative power is vested in the General Assembly. Our Constitution imposes a few, and only a few, restrictions upon its exercise, and except for these the General Assembly, in all matters pertaining to the domain of legislation, is as free and untrammelled as the people would themselves have been, had they retained the law-making power in their own hands, or as they are in adopting such constitutional amendments from time to time as they think fit. Pratt v. Allen, 13 Conn. 119, 125; Boot/i v. Toion of Woodbury, 32 id. 118, 126. It has not infrequently, from early Colonial days, made special provision for particular higliways ot bridges, and in several instances by the appointment of agencies of its own to construct or alter them at the expense of those upon whom it thought fit to cast the burden. 1 Col. Rec. 417 ; 5 id. 80 ; 13 id. 605, 830 ; 1 Private Laws, 282, 285. BULKELEY V. WILLIAMS. 117 By legislation of this nature the cit}' of Hartford was recent!}- com- pelled to contribute a large sum for a separation of grades at the Asylum street railroad crossing, and we held the Act to be not uncon- stitutional. Woodruff V. Catlin^ 54 Conn. 277 ; Woodruff v. ISew York S K E. R. R. Co., 59 id. 63, 83. That so many laws of this general description have been enacted by the General Assembh-, both before and since the adoption of our Constitution, is, of itself, entitled to no small weight in determining whether they fall within the legitimate bounds of what that instrument describes as "legislative power." Maynard v. Hill, 125 U. S. 190, 204 ; Wheeler's Appeal, 45 Conn. 306. One of those to which reference has been made (1 Priv. Laws, p. 285), required the town of Granby to build and maintain a bridge across the Farmington river, half of which was in the town of Windsor, and was adjudged to be valid by this court, notwithstanding then as now the General Statutes provided that bridges over rivers dividing towns should be built and maintained at their joint cost. Granby v. Thurston, 23 Conn. 416. There is no principle of freei ^, government or rule of natural justice which demands that the support of highways' and bridges sliall be imposed onh' on those territorial subdivisions of the State in which they are situated. If it be requireq of them, it is only bv virtue of a statute law, which the legislature can vary or repeal at pleasure. Chidsey v. Canton, 17 Conn. 475, 478. The burden is one that the legislature can put on such public agencies as it ma}' deem equitable, and transfer from one to another, from time to time, as it may judge best for the public interest. Doio v. Wake- field, 103 Mass. 267 ; Agaicam v. Hampden, 130 Mass. 528 ; County of MoUle V. Kimball, 102 U. S. 691, 703 ; Washen v. Bullitt County, 110 U. S. 558. The defendant urges that taxation and representation are indis- solubly connected by the underlying principles of free government, and that this (the commission which directs the affairs of the Bridge Dis- trict and makes requisitions on the towns for such funds as it deems necessary, not having been selected by them) is a sufficient defense against the payment of the order which has been drawn upon him, since it can be paid only out of moneys raised by town taxation. Taxes can, indeed, under our system of government, only be im- posed by the free consent of those who pay them, or their representa- 1'^*^ tives ; and for purposes which they approve. But the inliabitants of these towns were represented in the General Assembly, by which the laws now brought in question were enacted. The legislative power, after defining the general purposes of taxation, to confer upon local public corporations the riglit to determine tlie amount of the levy within the territory under their jurisdiction, is unquestionable; and in its ex- ercise it is immaterial whether the corporations, to which that function is entrusted, or between which it is shared, be called counties or towns, school districts or bridge districts. "When a levy is voted, the action ^U -ir 118 BULKELEY V. WILLIAMS. ts corporate action, deriving its obligatory force wholly from the authorit}' of the State. Towns cannot tax their inhabitants for any purpose except b}' virtue of statute law. Tliat law for many A'ears required them annualh' to tax for moneys to be paid over to the State treasurer for State expenditures. It now requires them to tax, as occasion may require, for monej's to be paid over to the count}- treas- urer for count}' expenditures. It can equally require any town or towns to tax for moneys to be paid over to the treasurer of a bridge or highway district, in which they are included, for district expendi- tures. Kingman et al., Petitioners, 153 Mass., 566, 27 Northeastern Rep. 778. ■v^M^^ It has been suggested that in Colonial times it was the right of the inhabitants of every town, themselves, to order the municipal duties assio;ned to them and choose the officers by whom onlv it could be placed under a pecuniary obligation, and that tliis is one of those rights and privileges " derived from our ancestors." to " define, secure and perpetuate " which our Constitution was adopted, and to which its preamble refers. If it can be said that such a right ever existed, it was not one of the nature of those which were described by the framers of the Constitution. The}^ were speaking of rights personal to the individual, as a citizen of a free commonwealth ; civil as distin- guished from political ; and belonging alike to each man, woman and child among the people of Connecticut. Such of them as they deemed most essential the}' proceeded to specify in the Declaration of Rights, and here we find asserted (Art. 1, § 2) that " all political power is in- hertnt in the people, and all free governments are founded on their authority " and subject to such alterations in form, from time to time, "as they may think expedient." If ther e were arrv absolute right in the inhaliitants of our towns to regulate their town finances and affaTi-s~" which was superior to all legislative control, it would be a greaT" " political power." It would create an imperium in imperio^ and in- vest a certain class of our people — those qualified to vote in town meetings — with the prerogative of defeating local improvements which the General Assembly deemed it necessary to construct at the expense of those most benefited by them, under the direction of agents of the State, unless the work were done and its cost determined under town control. No set of men can lay claim to such a privilege under the Constitution of Connecticut. Nor is it of any importance that in 1803 the State had taken the maintenance of the bridge upon itself This was merely a gratuitous act, with no element of a contract, and gave rise to no vested rights, except such as might accrue from obligations on the part of the State subsequently assumed by virtue of its provisions. The defendant also urges that the Act of June 28th violates the ^i^th Amendment of the Constitution of the United States, in that it BULKELEY V. WILLIAMS. 119 fleprives the town of Glastonbury of property without due process of law, and denies to it tiie equal protection of the hiws. No right, as against a State, to the equal protection of the laws is secured to its municipal corporations by^^Js^^^^^^^^'^nt," whichcaii limit irianTwa}' legislation to charge them witli puljlic ol)ligations. Nor have^lieTT inhabitants, in tlieir caijacit} of nieuibers; of such corporations, any greater rights or iruniuuiLies. New Orleans v. JVew Orleans Water Works Co., 142 U. S. 79, 93. No property of tlie town of Glaston- bury has been or is to be talien. Booth v. l\mn of Woodbury, 32 Conn. 118, 130; Railroad Company v. County of Otoe, 16 Wall. 667, 676. A duty to lay taxes for public purposes has been imposed, and for reasons already stated, it was competent to the General As- sembly to create that duty, as it was created. Tlieir proceedings were due proceedings : the process by which it is now sought to compel the, defendant to pay the sum in controversy is due process. The town\ can found no claim, under the Constitution of the United States, any more tlian under that of Connecticut, to such right of local self- government as precludes the General Assembly from exacting this payment, notwithstanding the demand comes from another municipal corporation, the Bridge District, in choosing whose members, or direct- 1 ing wliose affairs, it has had no share. Giozza v. Tiernan, 148 U. S. 657, 662. We have spoken of the Bridge District as a municipal corporation, altliough it may not answer the common law definition of that term, since not composed of the inhabitants of any territory' as such. In modern times corporations, both public and private, have often been constituted by a union of other corporations. Such was the United States of America after the Declaration of Independence, and until the adoption of their present Constitution. Such are the various counties of this State, once quasi corporations and now full corporations, the constituents of which have always been the several towns within their boundaries. The power of the Bridge District over the towns com- posing it is no less than it would have been, had their inhabitants iri- dividually been made its members. The district and the towns are alike agencies of the State for governmental purposes and7~wliether they be stvlecT pulilic or municipal corporations, their relations to it and to each other are the same, and equallj- subject to modification at its pleasure. "TTie defendant having refused to pay an order lawfully drawn upon him in behalf of the Bridge District, the writ was properly issued against him. Torrance, J., and Fenn, J., concurred, Andrews, C, J., delivered a dissenting opinion {QS Conn. p. 157 to p. 177), in which Hameesley, J., conciured. 't>->-'^ v--rv V-C ";--y ^^-^ C*-^^* us P-.^ U-w, ^ ^M A^ I 120 DUNKIRK, WARREN & TITTSBURGH RAILROAD V. BATCHELLOR. \ '^ PEOPLE EX REL. DUNKIEK, WARREN & PITTSBURGH ..^LJ^ RAILROAD V. BATCHELLOR. —^-^xat 1873. 53 N. Y. 128. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department in favor of plaintiffs, entered upon an order denying motion for new trial, directing judgment upon a verdict. The proceeding originated on an application by the relator for a mcmdcimus to compel Walker Parkhurst, the predecessor of the de- fendant, as supervisor of the town of Stockton, in the county of Chau- tauqua, to issue the bonds of that town, pursuant to the provisions of an act of the legislature of this State, entitled " An act to facilitate the construction of the Dunkirk, Warren and Pittsburgh Railroad, and to authorize towns in the county of Chautauqua to subscribe to the capital stock of said company," passed April 23, 1867, and of the acts amendatory thereof and supplementar}- thereto. On the motion for a peremptory mandamus, after hearing counsel for tlie respective parties, the application was denied, but an alterna- tive mandamus was directed. This was issued, and the defendant made his return, presenting certain issues. To this the relator replied. The issues thus formed were tried at a Circuit Court. The facts appearing upon the trial, as far as pertinent to the ques- tions discussed and the statute brought in question, are sufficiently set forth in the opinion. The jury rendered a verdict for plaintiffs. Exceptions were ordered to be heard at first instance at General Term. Grover, J.^ . . . This brings us to the question whether a mandatory statute compelling a town or other municipal corporation to become a^, stockholder in railroad or other corporation by exchanging its bonds for stock upon the terms prescribed by the statute, without its consent in any way given, is constitutional. This is a different question from that de- cide^»&' 4>^ I certain sense this is true. They are created by the legislature as instrumentalities of the government, and so far as legislation for governmental purposes is concerned are absolutely subject to its control. The powers of legislation over individuals is given to the legislature for all the purposes of government, subject to such restrictions as are contained in the Constitution. Yet no one would claim that an indi- vidual could be compelled by a statute to exchange his note or bond and mortgage with a railroad corporation for its stock, against his will, upon such terms as were prescribed in the act or any other. It is within the province of legislation to provide for enforcing the perform- ance of contracts when made ; but to enforce the making of them by individuals is entirely beyond it. We have seen that municip al cor - porations may be compelled to enter into contracts for an exclusive public purpose; but I think they cannot be when the purpose is private. This is equally beyond the province of legislation in the case of sucTi corporations as in those of private corporations or individuals. In OAtkins v. The Town of Randolph^ 31 Vermont, 226, it was held that an act providing for the appointment of an agent of the town by the county commissioner, with power to purchase liquors on the credit of the town, and to sell the same for certain specified purposes, and account for and pay over the proceeds to the town as prescribed, was unconstitutional; and the town, not having consented to the appointment or ratified the contract, was not liable for the liquors purchased upon its credit by such agent pursuant to the act. This judgment is based upon the grounds that the legislative power over municipal corporations is not supreme, and does not include the power of compelling them to enter into contracts of a private character, although such contracts would conduce to the public good by enabling the government to suppress traffic in intoxicating liquors. In the Western Saving Fund Society of PliiladelpJna v. The City of Philadel- phia, 31 Penn. 185, it was held that when a municipal corporation engages in things not public in tlieir nature, it acts as a private individual; and in the same case, between the same parties (id. 175), it was held that it so acted in supplying its inhabitants with gas. In Bailey v. The Mayor, etc., 3 Hill, 531, it was held that a municipal corporation was to be regarded as private as to its ownership of lands and other property ; and that the test whether powers exercised by a municipal corporation were public or private was whether they were for the benefit and emolument of the corporation or for public purposes ; and it was further held that the city of New York, under the act to supply the city with pure and wholesome water (Laws 1834, p. 451) acted as a private corporation and was responsible as such for the acts of those appointed by the act, for the reason that the corporation had accepted of and consented to the act. Surely a town acts as a private corporation in becoming a stockholder of a railroad corpora- tion, and, as such, interested in the operation of the road for the benefit of the stockholders. When a municipal acts as a private PEOPKIETOES OF MOUNT HOPE CEMETERY V. BOSTON. 123 corporation it acts as an individual. In Taylor v. Porter, 4 Hill, 140, it was tersely said by Bronson, J., that tlie power of making bargains for individuals has not been conferred upon any department of the government. In The People v. Morris, 13 Wend. 325, the distinction between the nature of the action of public and private corporations is clearly given. The judgment appealed from must be reversed and a judgment rendered declaring the relator not entitled to a peremptory writ, and dismissing the proceedings, with costs to the appellant. , Church, Ch. J., Allex and Peckham, JJ., concur. 'W^^'* ' FoLGER, J., concurs in result. \ '^x \ - Andrews, J., dissent s ; Rapallo, J,, does not vote. '^V ^0 ^ )^ PROPRIETORS OP MOUNT HOPE CEMETERY v. BOSTON. ^^ %A.<>-^Tl-^wX^iri.^ 158 J/ass«cA»se«s, 509.1 Petition for a writ of mand amu s to compel the city of Boston to convey Blount Hope Cemetery to the petitioning corporation in accord- ance with Statute 1889, Chapter 265. Hearing before Knowlton, J., >^ who reserved the case for the full court on the petition, answers, and such of his findings as were competent to be considered. The mate- rial facts are stated in the opinion. W. Gaston & J. B, Richardson, (S. W. Creech, Jr., with them.) for petitioners. 1\ M. Bahson and .S'. D. Charles, for respondents. Allen, J. Over property which a city or town has acquired ancJ -^ {ix^ holds exchisively for purposes deemed strictl y pi]|7lin ^ that is, w-hich the city or town holds merely as an agency of the State government : foFTEe^ jDefformance of the strictly public duties devolved upon it, \'-~e>^ r'^^-o-^ the Legislature may exercise a control to the extent of requiring the C'^'Co^ dty or town, without receiving compensation therefor, to transfer such property to some other agency of the government appointed to pei;form similar duties, and to be used for similar purposes, or per- haps for other purposes strictly public in their character. Thus much "Z^CITIl is admitted on behalf ..i the city, and the doctrine is stated and illus- trated in many decisions. Wei/mouth & Braintree Fire District v. Count)/ Commissioners, 108 Mass. 142. Whitney y. Stoic, 111 Mass. 368. Rawsonx. Spencer, 113 Mass. 40. Stone v. Charlestoivn, 114 Mass. 214. Kingman, petitioner, 153 Mass. 566, 573. Meriwethet- V. Garrett, 102 U. S. 472. Maijor, &c. of Baltimore v. State, 15 Md. 376. By a quite general concurrence of opinion, however, this legisla- ^^ 1 Statement abridged. Part of opinion omitted. — Ed. l5\^^M^ u^-C'^v-w^ 124 PEOPEIETOKS OF MOU^'T HOPE CEMETERY V. BOSTON. r^i rtive power^of^ control is not universal, and does not extend to property ^ acquired by a city or town for special purposes not deemed strictly 'C\'^'^ I and exclusively public and political, but in respect to which a cit^ 1 or town is deemed rather to have a right of private ownership, of \ which it cannot be deprived against its will, save by the right of ^^ ^ , eminent domain with payment of compensation. This distinction ,^A jT^ made of the kinds of property which will fall within it, because in iA'* ^ju/T* "^^ deem to be well founded, but no exact or full enumeration can be »j*»'''*!^p>'^ 'different States similar kinds of property may be held under different laws and with different duties and obligations, so that a kind of property might in one State be held strictly for public uses, while in another State it might not be. But the general doctrine that cities and towns may have a private ownership of property which cannot be wholly controlled by the State govei-nment, though the uses of it may be in part for the benefit of the community as a community, and hot merely as individuals, is now well established in most of the jurisdictions where the question has arisen. Board of Comviissiontrs v. Lucas, 93 U. S. 108, 114, 115. Moimt Pleasant v. Beckwith^ 100 U. S. 514, 533. Railroad Co. v. Ellerman, 105 U. S. 166, 172. Cannon v. Neiv Orleans, 20 "Wall. 577. Mayor, &c. of New York V. Second Avenue Railroad, 32 N. Y. 261. People v. Batchellor , 53 N. Y. 128. Peojyle v. O'Brieti, 111 N. Y. 1, 42. Webb v. MoT/or, &c. of Neiv York, 64 How. Pr. 10. Montpelier v. East Montpelierj 29 Vt. 12. Western Saving Fund Society v. Philadelphia, 31 Penn. St. .175. People v. Detroit, 28 Mich. 228, 235, 236, 238. Peoi^le v. Hurlhiit, 24 Mich. 44. Detroit v. Detroit & Howell Plank Road, 43 Mich. 140. Thompson v. Moran, 44 Mich. 602. Louisville v. Uni- versity of Louisville, 15 B. Mon. (Ky. ) 642. Richland v. Lawrence, 12 111. 1. People v. Mayor, &c. of Chicago, 51 111. 1. Grogan v. San Francisco, 18 Cal. 590. Hewison v. New Haven, 37 Conn. 475. The same conclusion is arrived at, after a full and clear discussion of the subject, in Dillon, Mun. Corp. (4th ed.) §§ 66-68, and notes. See also Cooley, Taxation, 688. In this Commonwealth the question has not directly arisen in reference to the power of the Legislature to compel a transfer of the property of a city or town, but the double character of cities and towns in reference to their duties 'and liabilities has very often been adverted to. When a city or town acts merely as an agent of the State government in performing duties for the general benefit, it is usually held free from liability to persons who sustain injuries ir^^ \ through negligence, except in the case of defective highways, which ,,,.j-«u<^/ constitute an exception to the general rule. But in other cases, where an element partly commercial comes in, a liability is usually enforced. Tindley v. Salem, 137 Mass. 171, 172, and cases cited. Worden v. New Bedford, 131 Mass. 23. Bailey v. Mayor, &c. of New t^,^.^ ^\t ^ York, 3 Hill (N. Y.), 531. In such cases, the ultimate question 'j^ l1^ I usually is, Did the Legislature mean that the city or town, or other PKOPRIETORS OF MOUNT HOPE CEMETERY V. BOSTON". 125 creature of statute, should be liable for negligence, or did it not? Howard v. Worcester^ 153 Mass. 426. SoutitamjAon & Itch'ui Bridfje V. Soxithampton, 8 El. & Bl. 801, 812. Cowley v. Mayor, &c. of Sunderland, 6 H. & N. 565, 57-3. Mersey Docks v. Gihhs, 11 H. L. Cas. 686, 707, 709, 710, 721. But in determining this question courts make a discrimination in respect to the character of the duties and of the property which are involved. Nowhere else has this ground of distinction been more often or more strongly insisted on than in Massachusetts. See cases cited in Tindley v. Salem, 137 Mass. 171, 174; Pratt v. Weymouth, 147 Mass. 245, 254; Neff v. Wellesley, 148 Mass. 487, 493; Lincoln v. Boston^ 148 Mass. 578; Curraii v. Boston, 151 Mass. 505, 508. In the recent case of Merri- mack River Savings Bank v. Lowell, 152 Mass. 556, we had occa- sion to make an analogous discrimination between the general duty which the city of Lowell was under to furnish water on equal terms to all its inhabitants, and the particular undertaking to furnish water for a year to an individual who had paid a year's rates in advance. In the case before us, we have to determine whether the title of the city of Boston to the INIount Hope Cemeterj^ is subject to legislative control, and this involves an inquiry to some extent into the usages and laws in this Commonwealth relating to bur^'ing grounds, with a view of ascertaining whether, in the ownership of such property, towns have heretofore been regarded or have acted merely as agencies uf the State government [After a very full statement as to the usages and legislation of the State, the opinion proceeds:] Such being the laws and usages of the Commonwealth before the time when the city of Boston made its first purchase of the Mount Hope Cemetery, the cit}-, by St. 1849,. c. 150, was " authorized to purchase and hold land for a public cemetery in any town in this Commonwealth, and to make and establish all suitable rules, orders, and regulations for the interment of the dead therein, to the same extent that the said city of Boston is now authorized to make such rules, orders, and regulations for the interment of the dead within the limits of the said city." Before any purchase u'^der this statute was made, a general statute was passed which included Boston, St. 1855, c. 257, § 1, providing that " Each city and town in the Commonwealth shall provide one or more suitable places for a burial ground, within which the bodies of persons dying within their respective limits may be interred," and forbidding the use for the burial of the dead of any land in an}' city or town' other than that already used or appropriated for that pur- pose, without permission. It also was, and long had been, the dutv^ of the overseers of the poor of each town to bury paupers and indi- gent strangers dying therein. St. 1793, c. 59, §§ 9, 13. Rev. Sts. c. 46, §§ 13, 16. (See also, for later statutes on the same subject, f r 126 PKOPKIETOllS OF M 3UNT HOPE CEMETERY V. BOSTON. Gen. St3. c. 70, §§ 12, 15; Pab. Sts, c 84, §§ 14, 17, enlarging their duties.) Being under these positive du*^ies, and having authority K >under St. 1849, c. 150, to go outside of the city limits for a burial (JL/^^"^^! ground, the city of Boston purchased the lurgest portion of the land \ff >', ,-*6f the Mount Hope Cemetery in West Roxbiirv in 1857, and has since ^/-''^'^iC^ jiadded to the same at various times, and has received large sums from ■s/y^*^^^^'4the sale of lots or burial rights, and has expanded large sums iiTThe '" ^ (care and management thereof, and about forty acres still remain" ^■^'■'- unsold. There is no suggestion in argument that in any of these particulars it has acted beyond its powers. i/o.'"' \ We are not aware that the sale of burial rights in this cemetery haa lever been limited to inhabitants of Boston. No such limitation is '.is l/\ lexpressed in the ordinance, but sales may be made to any person or '^j^y^r^ persons. Rev. Ordinances, '1885, c. 47, § 4. By St. 1877, c. fi9, § 7, re-enacted in Pub. Sts. c. 82, § 15, towns may seU exclusive burial rights to any persons, whether residents of the town or other- wise, in their cemeteries; and this right extends to cities. Pub. Sts. c. 3, § 3, cl. 23. There can be no doubt that the city held ihis ceme- tery not only for the b irial of poor persons, but with the right to make sales of burial rights to any persons who might wish to pur- chase them, whether residents or non-residents. With these duties, and also with these rights and privileges, the city has acquired and improved this property. It is not as if the land had been procured and used exclusively as a place for the free burial of the poor, or of inhabitants of Boston. In addition to these purposes, the city has been enabled to provide a well ordered cemeterj', with lots open tc purchase, under carefully prepared rules and regulations, and thus to afford to its inhabitants the opportunity to buy burial places without being compelled to resort to private cemetery companies, where the expense would probably be greater; and it has done this upon such terms that the burial of its paupers has been practically without expense in the past, and it has about forty acres remaining, the pro- ceeds of which when sold would go into the city treasury but for the requirement of St. 1889, c. 265. ■:- ^^ The St. of 1889, c. 265, requires the city to transfer to the newly ^'^^ \ formed corporation, called " The Proprietors of Mount Hope Ceme- iL>>^^\^'^'^^ tery," without compensation, this cemetery, with the personal prop- ■-'^Ow'T-^T^-^ erty pertaining thereto, and with the right to any unpaid balances I' vir*^^ remaining due for lots already sold, and the annual income of certain /V^ , funds held for the perpetual care of lots. If such transfer is made, ,^.>>*^^\jL, all that the city would retain would be the right to bury such persons V^'^^^^A*^ as it is or may be by law obliged to bury in a certain prescribed por- ^ tion of the cemetery. Its previous conveyances of lots and rights of \^ (^ burial are expressly confirmed. Butjt is apparent from the consider- ations heretofore expressed, that this is not property which is held exclusively for purposes strictly public. The city of Boston is pos- sessed of much other property which in a certain sense and to a cer- ^ %^ PROPEIETORS OF MOUNT HOPE CEMETERY V. BOSTON. 127 tain extent is held for the benefit of the public, but in other respects is held more like the property of a private corporation. Notably^ among these may be mentioned its system of water works, its system! "^ of paj-ks, its market^ its hospital, and its library. I n establi shing j ^l^^^^^^-^^-^]^ all of these, the city has not acted strictly as an agent of the State ^^ (vJul^ t**^^ govermnent, for the accomplishment of general public or political >-«aV*-^;> purposes, but rather with special reference to the benefit of its own ^aM*^ inhabitants. If its cemetery is under legislative control, so that a transfer of it without compensation can be required, it is not easy to j see why the other properties mentioned are not also; and all the other jQSsC^ ' cities and towns which own cemeteries or other property of the kinds 1 (y^^^.' mentioned might be under a similar liability. I Xj-^"""'''*^^ In view of all these considerations, the conclusion to which we have come is that the cemetej}' falls within the class of property which the \ ^\ vv^ Mi city owns in its private or proprietary character, as a private corpo- ^ ^^rjrT^ ration might own it, and that its ownership is protected under the iv/vw'Oiife-^ Constitutions of Massachusetts and of the United States so that the] ^_^j...,,^J^>^^ | u- Legislature has no power to require its transfer without compensa-l '^^^.^.^^ tion. Const, of Mass., Dec. of Eights, Art. X. Const, of U. S.,' i *i,^U*-vs Fourteenth Amendment. taJiiiiO'"\?-^ In judging of the validity of the particular statute under consider- ation, St. 1889, c. 265, there are other reasons leading to the same /-.-.» result. [jThe first is, that the duties of the city in respect to provid-lV^-*^'^-^ ^ Ing a burial place for the poor and for persons dying within its limits Lvuw ^ . t^,j burying paupers, and of providing a place for the interment of all ^^ jpersous dying in Boston, is not imposed upon the petitioner. The i^^z-V^'^^ Iduties of the city, and the duties of the petitioner under St. 1889, c. ^ 1265, are not the same. Moreover, the legislative power over municipal property, when it exists, does not extend so far as to enable the Legislature to require a transfer without compensation to a private person or private corpo- ration. The control which the Legislature may exercise is limitec'i ; it must act by public agencies and for public uses exclusively. If the city has purchased property for purposes which are strictly and purely public, as a mere instrumentality of the State, such property is so far subject to the control of the Legislature that other instru- mentalities of the State may be substituted for its management and care; but even the State itself has no power to require the city to transfer the title from public to private ownership. Upon the divi- sion of counties, towns, school districts, public property with the public duty connected with it is often transferred from one public corporation to another public corporation. But it was never heard of that the Legislature could require the city without compensation to transfer its city hall to a railroad corporation, to be used for a rail- way station, merely because the latter corporation has a charter from the Legislature, and owes certain duties to the public. It is contended in behalf of the petitioner that it is a public corpo- ration, Avholly under the control of the Legislature. But it is an errof Ml to suppose that a corporation becomes a public one merely b}' receiv. ;, 5* ling a charter from the Legislature, by owing certain duties to the public, and by being subject to rules and regulations established in the exercise of the police power. There is nothing in the case cited — Woodlawn Cemetery v. Everett, 118 Mass. 354 — to show that the Woodlawn Cemetery was regarded as a public corporation. It clearly was not so. It was said to be subject to the police power, like other cemetery corporations. Commonioealth v. Fahey, 5 Cush. 408. But liability to the exercise of the police power rest« on different cou- BiHerations, and that power does not extend so far as to include a right to require the transfer of property to another person without I compensation. The distinction b^ve en public a nd priyate c o rpora; tions i s well marked and cle"ar. (public corporations are govern- mental and political, like counties, cities, towns, school districts, — j^L^'^mere departments of the government, established by the Legislature, ' * v^^ and modified, and destroyed, without their own consent. Private^ corporations are formed by the voluntary agreement of their mem- bers, and cannot be established without the consent of the corpora- tors. Public corporations, as has been seen, may to some extent in relation to the ownership of property partake of the character of pri- vate corporations; and, on the other hand, many private corporations are charged with some duties and obligations to the public, as in the case of railroad, telegraph, canal, bridge, gas, and water companies. •^' -*a>^ ^ ca* PKOPRIETORS OF MOUNT HOPE CP:METERY V. BOSTON. 129 TLumhard v. Stearns^ 4 Cush. GO. Worcester v. Western Bailroad^ 4 Met. 564. Covimomvealth v. Smith, 10 Allen, 448, 455. But the general line of distinction between the two classes of corporations is clear. Llnehan v. Cambridge, 109 Mass. 212. Rmcson v. Spencer^ 113 Mass. 40, 45. Morawetz on Corp. §§ 3, 24, 1114. 2 Kent Com. 275. 1 Dillon, Mun. Corp. (4th ed.) §§ 19, 22, 44, 54, 56. Angell & Ames on Corp. §§ 14, 30, et seq. University of Maryland v. JVil- liams, 9 Gill & J. 365, 397. Ten Eyck v. Delaware & Baritan Canal Co. 3 Harr. (N. J.) 200. Hanson v. Vernon, 2 7 Iowa In re DeansvUle Cemetery Association, 66 N. Y. 569. An examination of the provisions of St. 1889, c. 265, leaves no f> ■, Tj v^.,,^"*^ doubt that the petitioner falls within the class of private corpora- tions. Its c"orporate members are such of the proprietors of burial Raritan ♦v4j.,^.^,,.JL>.4.' ^A .1^ C\aAn. |)^ 09^ lots in the existing cemetery as shall accept the act and notify the clerk of the corporation of such acceptance. Membership is wholly voluntary, and in point of fact only about one person out of eight who were entitled to do so became members. The corporation is to ' ly^^jOL. C- be sulijecf to all the provisions of the Pub. Sts. c. 82, so far as they -Sl^II 5.»-« of police of the city of Los Angeles, under a warrant issued upon a . Aj^K^,^.^ complaint charging him with a violation of the provisions of a certain ^ purported ordinance of said city, which ordinance prohibits, except within certain defined limits, the killing or slaughteriug of animals the flesh of which is to be sold or offered for sale or eaten. There is no claim that the complaint does not state facts sufficient to show a public ;, ,'i g local affairs. In saying this, we do not wish to be understood as inti- v*.^ mating that the people or a state may not reserve the supervisory con- trol as to general state legislation afforded by the initiative and referendum, without violating this provision of the federal constitution. That they may do so has been decided by the supreme court of Oregon in the case of Kadderly v. Portland, 44 Or. 118, [74 Pac. 710, 75Pac. 222], which appears to be the only ease in which that question has been directly presented. See, also, HojjJcins v. City of Dulv.th, 81 Minn. 189, [83 N. W. 536]. However this may be, it is clear that the direct participation of the electors of subdivisions of a state in s t . legislation as to local affairs was never intended to be prohibited by ^ ■ the framers of the federal constitution, or the states adopting the same, and that such power has been exercised by them, where not inconsis- tent with provisions of their state constitution, in innumerable in- stances,, from the institution of our government to the present day, V without interference of any kind on the part of the federal government. f\ 'Vrr'^ As is universally recognized by courts and writers on constitutional ^. {ir>M'>v Y^^ 1^ must be assumed that there was nothing in any of the forms of ^a^^J^^ government prevailing in the various states at the time of the adoption. sj-^r^^-^ of the constitution that was violative of the provisions under discus- sion. Discussing this question, and speaking of the forms of govern- ment then existing in the various states, the supreme court of the United States said, in Minor v. Happersett, 21 Wall. 162, 175, 176 ; ••' These governments the constitution did not change. They were ac- . cepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the states to provide. Thus we have unmistakable evidence of what was republican in form within the meaning of that term as employed in the constitution." It is un- necessary to here do more than to refer to the widely known and well- recognized form of local government that prevailed in several of the states at the time of the adoption of the constitution, known as the Ne w England town g overnment, under which all the inhabitants in \ ~ town meeting directly exercised such legislative power as was essential ' "'/^ ' to the conduct of local affairs. No difference material to the objection ^•^ under discussion is to be found in the fact that they did this in public ,f>ty*^^ meeting, rather than by secret ballot at the polls, as under the provi- ^ '^ sion before us. The objection here made is that, under the republican form of government guaranteed by the federal constitution, such ^v>o' , . power cannot be directly exercised by the people, and, so far as that ^\J^^ objection is concerned, if the people may legislate directly in town '^'^ meeting, they may do so by their votes at the polls. The constitu- tional provision was framed and adopted with full knowledge of this system of local government that then obtained in four of the states, and that system was continued under the constitution, without any question as to its validity. It is still to be found not only in several of the New England states, but also in other states (see 1 Bryce's IN RE PFAIILER. 153 American Commonwealth, pp. 594, 601, 605; 1 Dillon on Municipal Corporations, sec. 258), and we are not aware that any suggestion has ever been made that this form of local government is prohibited by the federal constitution. Other instances practically without number of the direct exercises of legislative power by the people in local affairs authorized by the state might be noted. As suggested in the briefs, the forms of local government in this country have been most varied, running all the way from the pure democracy of the town meeting form of government up to such absolute control by the legislature of the state as deprived communities of any voice in local affairs. It is apparent from this condition of affairs, existing continuously from the moment of the adoption of the constitution, that, if there is anything therein inconsistent with a republican form of government, within the meaning of these words as used in the federal constitution, the con- stitutional guarantee was intended to applj'^ only to the form of govern- ment for the state at large, and not at all to the local government prescribed by the state for its municipalities and other subdivisions. AVhatever may be said as to the former, the latter is undoubtedly true. It is clearly a question of local policy with each state whait shall^rj!t-6J«l be its Yarious political subdivis ion^ rny pnrpofip ment, and what shall be the extent and character of the powers of those subdivisions anrl the manner of their exercise. .. The power of a state in such matters is absol ute, ."^ee Clairborne v. Brooks, 111 U. 8. 400, [4 SuprCt. 489]; Forsyth v. Bammond, 166 U. S. 506, [17 Sup. Ct. 665]. "Where the authority of the electors of a munici- pality or other subdivision of a state to directly legislate in a matter of purely local concern is denied by a state court, it is denied solely upon the ground that the state constitution or statutes forbid the ex- ercise of such power, as in Elliott v. Detroit, 121 Mich. 611, [84 N. W. 820], and many cases cited by petitioner. See Cooley on Con- stitutional Limitations, 7th ed. pp. 165, 166; Dillon on Municipal Cor- porations, sec. 44 and note. The extent to which the people of a municipality shall be allowed to directly participate in the govern- mental function of legislating in local or municipal affairs is there- fore purely a question of state policy, in the determination of which the state is not restricted by anj^ provision of the federal consti- tution. In thus speaking of the state, we mean not the legislature of the state, or the executive, or the judiciary, but the entire body of the people, who together form the body politic, known as the " state " Panlmlloio v. Doan's Admr., 3 Dall. 93, [Fed. Cas. No. 10,925] ; Broicn v. State, 5 Colo. 499. McFaelaxd, J., dissenting.i 1 " The provision for the so-called initiative and referendum in regard to the ' adoption of ordinances is not unconstitutional. Legislation in towns, by by-laws, in regard to subjects strictly of local concern, has been a part of the law of Massachu- , ., setts from the earliest times. Opinion of the Justices, 100 Mass. 686, 590. Whether I -iJi^y ^ '^ such legislation shall be inaugurated by the people, or entirely by a representative ' "'—" "^ COMMONWEALTH ex rel. McCURDY v. LEECH, y^^ 1863. 44 Pa. 332. LowRiE, C. J. This is a writ for a qxio warranto to try the title of the defendant to the office of common councilman of Philadelphia, \) which office the relator claims to belong to him. ^irV (j^ The allegations are that the election returns show that tlie relator y*^ ^^^ was elected, and that he duly received a certificate of his election from >• •U,!^ all the return judges; that by a fraudulent combination with some of the return judges, the defendant obtained from a majority of them a JK^^ like certificate in his favour, and afterwards falsely and fraudulently ^ if^.\ declared that he would not use it, and after thus inducing the relator ^s^*^^ not to commence proceedings to prevent the use of it, he fraudulently combined with others to use it, and thereby obtained his seat in the council, and still holds it. Do these allegations raise a case that this court is authorized by law to decide ? We are very sure that they do not. I t is very plainly a case where there are two claimants for the very same office, which only oiie of them can have ; and therefore it is a case of a contested elec- tion, and must be tried in the mode that is specially provided for such cases, and_ not by the ordinary forms of judicial process.. This has been so often decided of late years that we supposed it was generally understood. It is a well-settled precept of the common law and of common sense that where a statutory remedy is given with a statutory right, the common law remedies are withheld, and this principle is em- bodied in the Act of 21 March, 1806, which is very familiar in practice. The mode of trying contested elections of councilmen of Philadek i phia is written in the Charter Act of 1854, and is the same as is pro- vided for contested elections of members of the Senate and House of Representatives. We need not describe what that is, for it is well known that it is by a committee of the body in which the seat is I claimed, and that the courts have nothing to do with it. Does the allegation of fraud in the election, or in the conduct of the return judges, or of any oFtfiem, or in the conduct of any of the can- didates in procuring votes and obtaining the certificate of election, give rise to any other remedy? No, certainly not; for all these are matters that can be fully tried in the special mode provided by the statute, and all of these are intended to be tried in that way. It would body or board of oflBcers, is a matter of regulation in regard to which our Constitu- tion is silent. It is therefore for the General Court to determine by enactment. The provisions of the Constitution which forbid the adoption of the so-called initia- tive and referendum in general legislation do not extend to the making of by-laws and ordinances by towns or cities under the authority of the Legislature, in regard to subjects of local concern. Opinion of the Justices, 160 Mass. 686, 689." Knowl- XON, C. J., in "Graham' V.' Roberts, 200 Mass. 152, 158. McCURDY V. LEECH. 155 ■<^ ■>-AJ ■^ be quite absurd to suppose that the legislature had provided a mode of trying contested elections, and that by it the frauds that may occur, or be charged to have occurred in them, or in any part of the process of the election, cannot be tried. It would be quite absurd to say that the legislature has given the mode of trying title to an office, which cannot try whether the title of either party is tainted with fraud, for then the mode provided would almost alwa^'S be inadequate and fruitless. The authority that tries the title must have authority to try all warrants that are made for or against it that are necessary to the decision. Does the warrant that the relator was thrown off his guard by the \ defendant's declaration that he would not use his certificate, and thus failed to apply to court to prevent the defendant from using it ; does this make a case that the court is authorized to hear and decide? Clearly not. We do not say that any court could have lawfully inter- posed. But if it could, it is not at all averred that the defendant made use of any language to the relator, or of any language or other acts to any person for the purpose of misleading or deceiving the rela- tor, or inducing him to neglect his rights, and therefore there is no valid averment of fraud, though the word fraudulently is very often used. And moreover, it has already appeared to us that it was not at all because of some misunderstanding by the defendant that the relator failed to claim his right at the proper time and place, but because he himself had combined with others, forming and endeavouring to main- tain an irregular organization of the council, and admitting to seats in it persons who were charged to be without title. Had he not done this, he would have presented his certificate in proper time and before the proper authorities, and his claim would have been regularly heard, and we must presume it would have been rightly decided. We have no right to suspect the contrary. We cannot of course draw to this court jurisdiction of the case on the ground of the allegation that the defendant presented a fraudulent certificate, and was fraudulently admitted on it ; for if we should do this on such grounds, we should open the way for the admission of all C^'J^»^*^ cases of contested election, and should be fairly chargeable with usurpation . The argument went a little out of the case presented by the infor- mation, in referring to the other disputed seats in the same council, and in alleging that unless we interfere, the political party, which in right is entitled only to a minority of members, will have a majority of them, and will therefore have the control in the election of city officers. If this be so, it is much to be regretted, but we have no authority to inquire of the fact. It must be very plain to every thinking mind that there is nothing in this suggestion that tends to prove that the court has any authority to interfere. Where the whole duty of judging of any matter is committed to others, it would be sheer usurpation for us to take the decision out of their hands. Plain morality forbids it. ^^^.,.. .n^, f N.' 156 FURMAN V. CLUTE. The evil coiTiplained of can be only transient, but it is not so with the decisions of this court — they live after us. They stand recorded as examples to be followed in the future. And we desire it to stand as an example that we judge no man in matters wherein we are not authorized to judge him ; that we assume no authority not given to us by the constitution and laws, even to effect a purpose that may appear greatly beneficial. "We do good when we exercise a vested authority in the correction of wrong, though we may sometimes perform our duties erroneously. We do evil when we usurp authority even in order to do good. If the election law is defective, the legislature is compel tent to amend it ; we cannot do it. And if we set aside the law of the o land in order to effect a purpose, we become merely arbitrary. .Jf^^^"^ ' The motion is discharged, at the costs of the relator. ^ A vM*^ -V- PEOPLE EX REL. FURMAN v. CLUTE. . "^ ^^^^^ 1872. 50 .v. y. 451. A--^/ •, V^/},^ il^ Appeal from judgment of the General Term of the Supreme Court.,' v ^ in the third judicial department, affirming in part and reversing in part '* "Nj^ a judgment entered upon the decision of the court upon trial at Special , kjO^ of votes was 4,676, of which Clute received 2,448 votes and Furman ^ • ( 2,228. Of the votes given for Clute, 295 were given in the fifth ward^A.*^'^""^ of the City of Schenectady, which then constituted one election \^/\r^ district. Clute was declared elected, and having filed his official bond /\ and taken the oath of office, he on the first day of January, 1872, ■ Vc* entered into said office and still continues tlierein. W^ I Previous to January 1, 1872, the said Furman took the oath of office and tendered and deposited with the county clerk a bond in due form and sufficiency as superintendent of the poor of said county, and claimed the said office. There was no proof of actual notice of Clute's ineligibility to any of the electors of said county, nor proof of any facts from which notice could be implied other than his holding the office of supervisor of the fifth ward. , ^'- { 1%X°" i;::Jr^ '^^^^^^^^^ *^^^ V > c <• '^ \y\Ay-^^^V^ * t^ --b' FURMAN V. CLUTE. 157 The Special Term decided tliat defendant was disqualified from holding the office ; that his election was void, and conferred upon him no title to the office ; that there being no proof o^ notice to the electors of such disqualification nor of facts from which knowledge or notice could be presumed, neither of the candidates acquired title to the office, and the election was a failure. It thereupon ordered judgment ousting th e defend ant from the office without costs to either party. Judgment was entered accordingly. The General Term affirmed the judgment so far as that defendant be ousted from the office, but reversed it so far as it adjudged that the relator was not entitled to the office, and directed judgment that he is so entitled, and gave him his costs. ^ • • • • • • , , , »i^ FoLGER, J. The first question to be considered on this appeal is I ti^-^ whether Clute was eligible to the office of superintendent of the poor. \ S' • [This point was discussed and decided in the negativ e.] _' • ••.., ^ The second question to be considered is whether Furman, the relator, I ^^j^^ was, at the genexal election__of 1871, duly elected to the^'oHTce. wb-^ Neither a majority nor a plurality of all the~balloti~fouiid in the'lSoxes X.>-^~- were for him. He had but a minority of them. »JU>-^k«Ji-^ It is the theory and the general practice of our government that the candidate who has but a minority of the legal votes cast does not become a duly elected otHcer. But it is also the theory and practice of our government, that a minority of the whole body of qualified electors) . may elect to an office, when a majority of that body refuse or decline to vote for any one for that office. Those of them who are absent from the polls, in theory and practical result are assumed to assent to the action of those who go to the polls; and those who go to the polls, and who do not vote for any candidate for an office, are bound by the result of the action of those who do ; and those who go to the polls and who vote for a person for an office, if for any valid reason their votes are as if no votes, they also are bound by the result of the action of those whose votes are valid and of effect. As if, in voting for an office to which one only can be elected, two are voted for, and \r»^ j|y^* their names appear together on the ballot, the ballot so far is lost. The votes are as if for a dead man or for no man. They are thrown away ; and those who cast them are to be held as intending to throw them away, and not to vote for any person capable of the office. And then he who receives the highest number of earnest valid ballots, is the one chosen to the office. ■ AVe may go a step further. They who, knowing that a person is (Le^-^^- ineligible to office by reason of any disqualification, persistently give v_n^51a''~^' their ballots for him, do throw away their votes, and are to be held as meaning not to vote for any one for that office. But when shall it be said that an elector so knows of a disqualification rendering ineligible the person, and knowing, persistently casts for him his ballot? There '«-vO'"-y' 1 Arguments and part of opinion omitted. — Ed. 158 FUEMAX V. CLUTE. may be notice of the disqualifying fact, and of the legal effect of it, given so directly to the voter, as that he shall be charged with actual knowledge of the disqualification. There may be a disqualifying fact so patent or notorious, as that knowledge in the elector of the ineligibility may be presumed as matter of law. In modern times Lord Denmax, C. J., thus puts a case : " No one can doubt that if an elector would nominate and vote only for a woman to fill the ofhce of maj'or, or burgess in parliament, his vote would be thrown away; there the fact would be notorious, and every man would be presumed to know the law upon that fact." Gosling v. Veley , 7 Ad. & Ell., X. R,, 406-439 ; 53 Eug. Com. Law, n\sjiSi ^^^' ^^ ^^^® same case, the learned judge says that "the result of the decisions appears to be this : where a majority of electors vote for ^^ • ^ a disqualified person, in ignorance of the fact of disqualification, the »«v-M,^-*f^ election may be void or voidable, or, in the latter case, be capable of f. . aV3, "-^ being made good according to the nature of the disqualification. The objection may require ulterior proceedings to be taken before some competent tribunal, in order to be made available ; or it may be such ii^ as to place the elected candidate on the same footing as if he never \ had existed, and the votes for him were a nullit3^" And then, re- k!v "^ ferring doubtless to the viva voce manner of voting in England, and to the manner of keeping of poll-books there, and to the fact of the number of electors there being small, so that for whom each elector has voted is known, and he may be safely allowed to recall his vote for an ineligible person, and give it for another eligible, the learned judge continues : " But in no such case are the electors who vote for him deprived of their vote if the fact becomes known and is declared while the election is still incomplete. They may instantly proceed to another nomination and vote for another candidate. If it be disclosed afterward, the part}' elected may be ousted and the election declared void ; but the candidate in the minority will not be deemed ijjso facto elected. But where an elector, before voting, receives due notice that a particular candidate is disqualified, and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchises." **^'^. ,^ Vi To which we add, that not only must the fact which disqualifies be ^^"^'"^ known, but also the rule or enactment of law which makes the fact >rs ^ , thus effectual. A '\ In the multitude of cases in which the question has arisen, we think that up to this point, there is no essential difference of result. All agree that there must be prior notice to, or knowledge in the elector of fact and law, to make his vote so ineffectual as that it is thrown away. But some say that if there be a public law, declaratory that the ex- istence of a certain fact creates ineligibility in the candidate, tlie elector having notice of the fact, is conclusively presumed in law to have knowledge of the legal rule, and to be deemed to have voted in persistent disregard of it. Others deny that the maxim, ^'■Ignonintia FURMAN V. CLUTE. 159 %H UV, >.it» ^-J juris exciiset neminem " (even with the clause of it, " quod quisque scire tenetur" not often quoted, and of which we are reminded by the very thorough brief of the learned counsel for the relator), can be carried to that length, and insist that there does not apply to this question the rule that all citizens must be held to know the general laws of the laud, and the special law affecting their own locality. That maxim, in its proper application, goes to the length of denying to the offender against the criminal law a justification in his ignorance thereof ; or to one liable for a breach of contract, or for civil tort, the excuse that he did not know of the rule which fixes his liability. It finds its proper application when it says to the elector, who, ignorant of the law which disqualifies, has voted for a candidate ineligible, your ignorance will not excuse you and save your vote ; the law must stand, and your vote in conflict with it must be lost to you. But it does not have a proper application when it is carried further, and charges upon the elector such a presumption of knowledge of fact and of law as finds him full of the intent to vote in the face of knowledge, aiTdrto so persist, in casting his vote for one for whom he knows that it cannot be counted, as to manifest a purpose to waste it. The maxim itself concedes that there may be a lack of actual knowledge of the law. For it is ignorance of it which shall not excuse. Then the knowledge of tbe j.aw, to w^hich each on e is held, is a theoreticaT knowleclgel ancTi tEe^octriue urged upon us would carry a theoretical knowledge of the statute further than goes the statute itself. The statute but makes / ineffectual to elect the votes given for one disqualified. The doctrine j *j-^->— ^ a\ would make knowledge not actual, of that statute thus limited, waste the votes of the majority, and bring about the choice to office by the .^_ij ^^^^ votes of a minority. We are not cited to nor do we find any decision ^ i .,j.,^ to that extent of any court in this State. The industrious research of ,^>-u/v the learned counsel for the relator has found some from courts in sister^ ^ States. Gulick v. New^ 14 Ind. 97 is to that effect. Carson v.\ H-*'- ^*^ 3IcPhetridge, 15 id. 331, folloAvs the last cited case. Hatcheson v. \ '■' ' ** •-^ Tilden,i: Har. & McH. 279, was a case at nisi j^rius, and is to that ^V^'^;^ effect. With respect for these authorities, we are obliged to say that ~^^ "*' ^ they are not sustained by reasoning which draws with it our judgment. Cv-^^""^^ Commonneallh v. Bead, 2 Ashmead, 261, is also cited. But that was a case of a board of twenty, assembling in a room to elect a county treasurer. On motion being made to elect vica voce, a protest was made that the law under which they were acting prescribed a vote by \ ^ ^ J ballot. Thus actual notice of law and fact was brought directly to H''*'-^ each elector before voting. Nineteen persisted in voting viva voce. These were held to be wasted votes. One voted by ballot ; and his vote was held to prevail, and the person he voted for to be elected.! Commonwecdth v. Cluley, 56 Penn. St. Rep. 270, is also cited. But the language of the court there is : " The votes cast at an election for a person who is disqualified from holding an office are not nullities. They cannot be rejected by the inspectors, or thrown out of the count l£vO>vj; W*^^ >^ /(..^ /)_._ 160 FURMAN V. CLUTE. -*-n ^>"'"'»:'. v. by the return judges. The disqualified person is a person still, and every vote thrown for him is formal." And that was the case of one who was ineligible by reason of having held the office of sheriff of a county, and became a candidate in the same county for the same office before the lapse of time prescribed by the Constitution ; a case in its facts quite like this in hand. The relator also cites many instances of the action of legislative bodies and their committees. As to these, a respectable authority on these questions has remarked, " that they cannot be said to afford any precise or useful principle," 1 Peckwell, 500; and learned counsel, arguing in support of the principle now claimed by the relator, has conceded that "no fixed principle is established by the decision of committees," Galivay Election Cases, 2 Moak. Eng. Cases, 714 ; and it may safely be said that they are not so conclusive and satisfactory as judicial determinations, as it is difficult to arrive at the exact principle upon which the votes of so many as constitute a legislative body are put. Besides that, they are not uniform, but quite diverse in their results, as appears from the citations of the counsel of the relator, and the instances noted in 56 Penn. St. Rep., supra. We have consulted many of the authorities cited to us from the English books ; and in them it will be found, we think, that where it was held that votes for an ineligible person would be treated as thrown away, it was not extended beyond cases in which there was actual notice of fact and of law to the voters before their votes were cast. Gosling v. Veley, supra; Rex v. Hawkins, 10 East. 211; Clariclge v. Evelyn, 5 Barn. & Aid. 81; Douglass, 398 n. [22]; Rex v. Parry, 11 East. 549; Rex v. Bridge, 1 Maule & Selw. 76. And there are American authorities which hold that if a majority of those voting by mistake of law or fact happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him in poll shall receive the office. Saunders v. Haynes, 13 Cal. 145; State V. Giles, 1 Chand. [Wis.] 112; State v. Sinith, 14 Wis. 497. And in Dillon on Mun. Corp . p. 176, §135, it is stated that unless the votes for an ineligHjle person are expressly declared to be void, the effect of such person receiving a majority of the votes cast is, according to the weight of American authority and the reason of the matter (in view of our mode of election, without previous binding , nominations, by secret ballot, leaving each elector to vote for whom- \soever he pleases), that a new election must be had, and not to give the office to the qualified person having the next highest number of votes. And this view is sustained by a preponderance of the author- ities cited by the author in the foot note, some of which are cited above. And in The Queen v. Mayor, etc., 3 Law Rep [Q. B.] 629, after holding that though the electors had actual notice of the fact which had been adjudged by the courts to disqualify, yet knowledge or notice in the elector of the adjudication could not be presumed. It is further said : " It is not enough to show that the voter knew the fact Ai* FURMAN V. CLT7TE. 161 only ; but it is necessary to know suflicient to raise a reasonable inference that he knew that the fact amounted to a disqualification. It cannot be said in all cases that the mere knowledge of a fact, which ill law disqualifies a candidate, must be taken to be knowledge of all accompanying circumstances. " We think that t he rule is this : the existe nce of t hp fnn t^ whir^h : . disqualifies, and of the law which makes that f act ojpera^to disq uali fy, | ^ must be brought home so cl osely and so clearly to the kno wledge orj Tv>>y*--^ notice of the elector, as that to gi ve his vote therewith indicates ^ny ^^-'^^^'^'''''^^ intent to waste'it.' TBeTchowlecTgelnust be such, or the notice brought ^ >"*-^ so home, as to imply a wilfulness in acting, when action is in op- position to the natural impulse to save the vote and make it effect- ual. He must act so in defiance of both the law and the fact, and so in opposition to his own better knowledge, that he has no right to complain of the loss of his franchise, the exercise of which he has wantonly misapplied. To state a truism ; our theory of government by the people is upon the assumption that the people as a whole are intelligent of their rights and interests, and are honestly and earnestly concerned in the due and wise administration of affairs, and zealously alive to the need of good and fitting men in the various places of public trust, and hold in high ^^ esteem the privilege of suffrage, and are unready to pretermit its *J"t>-^*"^^ exercise or to exercise it meaninglessly. It is much to presume, with '' ' this as our starting point, that any considerable body of electors will purposely so exercise their right of electing to ofHce as that it shall be but an empty form ; and that going through with outward signs of an election they will of intent so cast their ballots, as that they will be votes wasted. Now the finding in this case is, that there was no proof of actual \J'-vJ^ IV^^ notice of Clute's ineligibility, nor of any facts from which notice could j"" V*^l^ be implied, save that he was a supervisor, '^"^^ There was but this fact, and the law upon the statute book ; suf- ficient in themselves, as we hold, to render him ineligible. But therefrom to give the office to the relator, it is first to be presumed, as a matter of law, that near 300 of those who voted for Clute had knowledge of the fact that he was supervisor ; had knowledge of the existence of the act of 18.53 ; and knew that, the fact and the law concurring thus, he was ineligible to receive and avail himself of their votes in his favor, and knew that their votes given to him were wasted, without effect upon the count. It is to be presumed further, that knowing this, they all, though seemingly desirous of taking an effectual participation in the choice of a person to the office of superintendent, deliberately so acted as that they are assumed to have persisted against knowledge ; determined to "do nothing but tender their vote for him." It is not in accordance with common sense, and we find no rule or authority so stringent as to compel us to that result. 162 IN THE MATTER OF THE MAYOR, ETC., OF NEW YORK. There is one other question remaining. The act of 1829 says that J) , U'^'^f rjpo supervisor shall be appointed to hold the office, etc ; and the act of ^^^^v-^ 18o3 says that no supervisor shall be elected or appointed to hold :> -^^'J*^/ the office, etc. > ,. ' The learned and ingenious counsel for the defendant urges that the manifest intention of the legislature was to inhibit, not the election or appointment to the office of superintendent, but the holding of the two offices by the same person. And from this he deduces the proposition that when Clute accepted the office of superintendent he vacated that of supervisor, and could continue to hold the former. We do not so think. The legislature intended that the same person ^^fji should not hold the two offices at the same time ; and to effect this, it ^\^^^^^l^ prohibited the election of a supervisor to hold the office of superin- ■w ^"^^^ tendent. It made him ineligible, not merely to holding, but to an \^oyjL appointment or election to hold. •y^i ^^ The language is not that he shall not hold, but that he shall not be elected or appointed to hold, and operates upon the very first step in the process toward holding, and stops that. He can never hold but by appointment or election ; and the act says that he shall not be eligible to that election or appointment. So that he never can begin to hold, and cannot, by resigning the one or accepting the other, bring himself within the reason of the cases cited, of which The Peo-ple v. Carrique, 2 Hill, 93, is one. There the defendant was held to be eligible to the office which he accepted ; but as that was held to be incompatible with the one which he already filled, his acceptance of the last ipso facto vacated the first. We are therefore of the opinion that the judgment of the General Term should be reversed, and that of the Special Term affirmed. \ VjU-a All concur. ^ _ . . r. .. k ..^-^ V^, jtr- ^ ,1 . Judgment accordingly} /^^O — V/v^^l:>^.v^-, office " were added. After the commencement of this suit, the same person, who acted as clerk in the year 1808, added to the record words sufficient to show that the clerk w^as sworn by the moderator of the meeting, no justice of the peace being present ; and that the assessoj-s were sworn by the clerk on the evening of the day of the meeting. It is stated, that parol evidence exists, that the several officers before \^^^ mentioned were sworn in the same manner now appearing from the record, as amended by the clerk. — And if the original entry of the clerk is sufficient, or if he had a right to amend the record, in the manner and at the time he did; or if parol evidence is admissible to prove that the officers were regularly sworn into office ; — then it is agreed that judgment shall be rendered for the defendants : ■ — unless in some other point the proceeding shall be found to be defective. We have had frequent occasion to perceive the great irregularity ■which prevails in the records of our towns and other municipal corpo- rations ; and the courts have always been desirous to uphold their pro- ceedings, where no fraud or wilful error was discoverable. Too niuch strictness on subjects of this nature would throw the whoU- bod}' pol- itick ill to coiifusion. ' Foi* IF cannot be expected that, in all the cor- porations, persons will be every year selected, who are capable of performing their duty with the exactness which w'ould be useful and convenient. As no town or district officer can lawfully exercise his office, until he is sworn in the manner required by law, pains should be taken to have certificates of the oaths made out by the moderator or justice of the peace, as the case may be ; and the}' should be filed among the papers of the corporation. But when the clerk administers the oath, it is sufficient that he enters it of record in the manner adopted in the present case, when the record was amended. The first ent ry made by th e.j:;l£xk. kfixe^ j-as certainly defective i and ifmaybe questioned, whether in a recent transaction it would be held sufficient. But we are of opinion, that the defect is properly cured by the subse- quent entry of the existing clerk, he being the same person that offi- ciated at the time of the first entry. A sheriff may amend his return, U- 172 WELFORD V. WILLIAMS. according to the truth, at any term subsequent to that when the pre- cept is returnable ; he being liable for a false return, if he abuses the power. Anonym., 1 Pick. 196. Adams et al. v. Robinson et al. and trustee, 1 Pick. 461. Atkins v. Sawyer, 1 Pick. 354. Thacher v. 3fil- ler, 13 Mass. 270. Commonwealth v. Parker, 2 Pick. 550. And there is as much reason for a clerk to have this power, although after elec- tions have intervened, if at the time he undertakes to amend he is in office, and amends only what was done by him when he was in the same office before. If he states what is not true, he may be punished for fraudulent conduct in his office; and he will be sufficiently watched by interested parties, to render a deviation from truth neither safe nor easy. In this case it is agreed that the amendment in the record is consistent with the truth of the case. How far parol evidence is"~ admissible to prove that an oath was administered, when no minute appears on the record to prove it, need not now be decided. We do not determine, that a moderator of a town meeting, who is not a certi- fying officer by law, but is occasionally vested with authority to admin- • ister an oath, when no justice of the peace is present, may not aid by his testimony a defective record, in which there is a minute, but an informal one, of his having exercised this occasional authority. k- STATE EX REL. WELFORD v. WILLIAMS. 1903. 110 Tenn. 549. Neil, J.-^ This was a proceeding instituted in the chancery court of Shelby county for a mandamus upon the defendant, as mayor of the city of Memphis, to compel him to allow the relator to examine the corpora- tion books of the said city of Memphis with an expert accountant. An alternative writ was issued by the chancellor, to which the defend- ant responded. Thereupon the relator demanded the peremptory writ on the pleadings as they then stood. The chancellor denied the relief sought, and complainant has appealed and assigned errors. We pass, now, to a statement of our conclusions upon the general question of law as to the right of a citizen and taxpayer of a city to make an examination of the books and papers of the city. In stating these conclusions we shall not discuss the authorities above referred to or attempt to reconcile their conflicts. After considering all of these authorities and the whole subject involved, we shall state what we believe to be the sound principles applicable to the matter. In theory the right of examination is absolute, but in practice it is .^^ at last only u matter of discretion, because such application is likely, ■ at any time to be refused on the part of the custodian of the books_ 1 Part of the opinon only is given. — Ed. WELFORD V. WILLIAMS. 173 « and papers sought to be examined, a nd then the right must be enforced i^- " "^ by mandamus, and this writ is not of absolute right, ])nt morcly of ' - discret ion, to S eawarded only in a proper case ; tiie facts clMimud as authorizing its issuance to be judged of in every case by tiie court, and the writ to be awarded or withheld upon a consideration of all the circumstances presented. So, while the right is, in theory, absolute, , yet it is in practice so limited by the remedy necessary for its enforce- 1 ,,x^>--\ ment as that it can be denominated only a " qualified rig ^L" \ V"'"'^ ' The right to an examination for a special purpose, as, for example, to obtain specific information to use in a litigation between the appli- cant and third parties, or between the applicant and the cor[)oration, and the like cases, while not, in principle, standing upon higher grounds, yet is the more easily grantable, because it does not involve so much time, and so much inconvenience to the custodian of the books and papers, and so much 'interruption of business, as in case of a general examination. Yet it cannot be doubted, under a state of facts showing it to be\U°'^ "^ '^'■" important to the public interest that the general examination of the I books of a municipality should be had, that the court should allow | such examination at the suit of one who is a citizen and taxpayer of the corporation. The right rests, not only on the ground that the books are public books, but also on the same princi[)le that authorizes a taxpayer to enjoin the enforcement of illegal contracts entered into by the munici- pality, county, or State, for the protection of the applicant and all other taxpayers from illegal burdens. And it is obvious that, in making and enforcing such application, the taxpayer acts, in a very; real sense, not only for himself, but for all other taxpayers, and acts, \ therefore, in the capacity, as it were, of a trustee for all. -^ It must be admitted, also, that the exercise of such power, if pru- dently and carefully guarded, cannot be otherwise than salutary, because the knowledge that it can be exercised b}- a citizen and tax- payer, and may be exercised when the public good shall seem, on sound reasons, to demand it, cannot result otherwise than in producing an added sense of responsibility in those who administer the affairs of municipal corporations and in inducing a greater carefulness in the discharge of the trusts imposed upon them by their fellow citizens under the sanctions of law. Yet it is equally true that such general examinations must neces-j}tr'«^^^ sarily to some extent interrupt the ordinary and usual course of I ;,v^ .gz.^iP'^ business in public offices, and require of the officers in charge thereof/ : L^X** some additional duties for the time being. And it follows, from this,' tiiat such examinations should not be lightly granted, or permitted with unnecessary frequency ; that the occasion should be grave and important; and that the person seeking the examination should bei ^ trustworthy and reliable, and at all times and at every stage subject to the supervision of the court, to the end that there may be no op- 174 WELFOED V. "WILLIAMS. CA. >-■ ■t'' Ol.'Vs-**''^ >^ pression practiced under the guise of doing service to the public, and that the safety of the books and records subjected to the examination shall be continually provided for. All of these matters fall within the principle that the granting of permission to make the examination rests in the sound discretion of the court, in the form of granting or withholding the writ of mandamus. It only remains to determine whether the occasion shown in the present case is of sufficient gravity to move the discretion of the court. The case presented, as drawn from the petition and answer, is that the period of the examination sought covers the space of five years, during which time many millions of dollars have been collected by the city administration and expended ; that during 1902 there were receipts to the amount of $1,067,916.09 and disbursements to the amount of $1,060,053.89, and the city borrowed from one bank $53,357.04, on which $3,172.36 was paid, from another bank $52,135.43, on which $2,982.17 interest was paid, and from another bank $22,922.33, on which, $552.99 interest was paid, aggregating $135,122.32, and that during the previous year there was borrowed $101,361 ; that the taxes collected from year to year from the taxpayers of the city are already very heavy and very burdensome ; and that the mayor, not- withstanding the great revenues collected, a liberal exercise of the power to borrow money, and the recent session of the legislature, to which application could have been made for an increase of the means of raising taxes, if the property of the city could bear more, found it iiuecessary, shortly before the petition was filed, to resort to the ex- traordinary expedient of calling a meeting of two hundred prominent 6itizens of Memphis to devise ways and means to pave, repair, and "round up " the streets of the city. Under such a state of facts, we think it not unnatural, and not un- reasonable, that the taxpayers of the city should desire to have the books, papers, and vouchers of the city looked into, to the end that they may fully learn the financial condition of the municipality; and we think the facts stated make a case sufficient to justify the court in allowing the general examination sought in the petition. Indeed the conclusion as to the propriety of making such general examination is substantially conceded in the answer of the defendant, in the fact that he replies that he has set on foot just such examina- tion, through a committee of citizens selected by him and agreed to by the legislative council. However, the creation of that committee can in no wise interfere with the present proceeding. After judicial proceedings have been started, as in the present case, for the purpose of obtaining a general examination, they cannot be thwarted by the appointment of a com- mittee on the part of the custodian of the books, or his associates in authority, to make an examination in lieu of the one sought. The right of the petitioner to have his application passed upon on its merits became complete upon the filing of the petition, and, of course, LAUXTZ V. SULLIVAN. 175 Ofinnot be aflfected by subsequent acts of the defendant, taken without his consent, and to which he was not a party. It follows that the writ must be allowed, if the defendant is the custodian of the books and papers of the city in such a sense that he can be justly called upon to produce them. Upon examination of the laws governing the city, and the rights and power of its mayor — as shown in Watkin's Digest (1902), pp. 19, 20, sees. 4 and 6; id., p. 22, sees. 1, 2; id., p. 170, art. 5 — we think sufficient powers are vested in the mayor to make it proper that the writ should go against inm for the alfowance of the examination sought in^tlie petition and for" flVe production of the books and papers. It results that the decree of the chancellor must be reversed, and the cause remanded for the entry of a decree awarding the peremptory writ; but such decree shall reserve to the court below the powers aud\ ^^^^ control above indicated to prevent oppression, and for the preservation ^j^ ^ of the books and papers, and to so order the examination as to inter- fere as little as practicable with the transaction of current business, and said decree shall reserve to each party the right from time to time to apply to the court for instructions pending the examination. 3 ^ r v: Y AJ^ Section 2. Departments, a. Legislative. LAUNTZ V. PEOPLE EX REL. 1885. 113 M. 137. SULLIVAN. *-■<■ ^ ;^ Sheldon, J.^ Defendant's appointment to the office is admitted by appellee's counsel. The filing of his oath of office is averred in the plea, and not traversed by the replication. It therefore stands con- fessed b}- the pleading, so that all there is remaining to give to defend- ant complete title to the office of city treasuser, is the approval by the city council of his official bond. There were eight members in the body of the cit}^ council ; a quorum consisted of five members ; the mayor had a casting vote in case of a tie. On the 21st and 29th of May, the council being duly convened, and all its members present, a motion was made to approve defendant's bond, and one-half of the aldermen (four) and the mayor voted to approve the bond, and the other half refused to vot_e^ This action of the city council, it is claimed by appellant, was a valid approval of the bond. On the other hand, it is contended that a majority of the alder- men present (five) should have voted in its favor, to make a valid approval of the bond. In respect of the election of corporate officers, :^\ 1 Statement of facts and arguments, and part of the opinion discussing a question of practice, are omitted. — Ed. ^ 176 I^rSTT r. 5T1I~a5:. biie -w^ setLe^l nale b. as ^aaei m W' ::z :-n Corponiions. see. 54C: "ft ~ " ~ : — si m tbej mtetbeact tcc i>Laers. ecu « c a of tbe --H i 7 of v:-«es.~ Aixi see . -. Jjri. Iz7 : ^«r x. FoxcrafL ± Burr. 1 ' 'Jom- ther claim n r ~ z^i. zo eases .. ^cSead ^ tiae trxnicieaaQ of osniier cocporEte . atterease & mA}>j?iij of ih'^^e pi,ejml most To4e for Ji Tkere i§ i^nze^fitj for tin fietaietiaA. GMiba^ r. T =^ _ -iies. C7». I" '- '-^'-XT imsisced Tb..^t %& ihe city cfe yta dke c U tbe ertr cc - ' - — :z:jc tbe role of i& pcBoeecbags in eoBfoani^ iriiii the _ - ' of de:Zber3.irre boiSe&,'^ ^kc paoSaBestBij rale ^lineli is . bj sadu boiies ^j'^ili obtna, mad th&t thxt rok reqinres Hie r^iaii to tnaaaet bosoesa, sad tkai -Kiiere t^ roQ is -^ras aokd bxvs az« Xakem-, sad it appears fron t^ re- .-. tbct BO tjtto n aM is TotaDs- Vrs^iieae smt be sos- & qiiKMa an iwieLS . We do aot . : wjeranar y here to i^x» tieae |ww»tiiaM of appeflee's cooDseL for. eoneefins tbeir e tMnk tbfe ad3r>- - - ekjC- T areirrrFf rr Trtf rmnrl Ji emme hrAj. and -ve t- - e~ - - "' - «L and i: - ■ - r.f fli^ r ' . . jeed- i.- _ le of e ' TiD of tbe eoimefl iR iBfe i . m t£«e , ,e officer? "^e sec IOC x;,T. ; -'/v-er fote in leapfeet :f ; =:iff.rre3 45f ' -e crtj - sLc/tild be ,-ai of jeT''s boiid. T--= -sboald be aa THE.-- - of tbe coBBBcfl are -^-^i^; -. ^^-y- >- - :- -• .-- msHJJW T. ?r-r.i vav . 177 tiiere is a tie. an«i tiie niAvor msy Tote "^liL. stba' ade, lad msie s majority. W: - : is tiiere ""iiv. wia^a aJl t^ ^Ig^ Haembers ire present- s~ ' " ^ ~ ' ''^u refiise w TDte, tie aaxjor ^soGid so* vot^r ■«-''!: :-^; -: — : -— ;r. and naake & majoriSy? Wiy May it not ce _ : _ - ered as e'lnrs^ent to a tie. ccwprtiing ti»e iBeailiers "wro -Sd rot vote as votrng- tl_ "ary iray froiB. m-e ~ _" ■ Tfaas woc^i i»r f uiSlIing the porposes of the la"*" in gj^' _ - r a csstmg voiie ir ctise of a tie. It w— ' -- - -ji^ n _ azi l pre- ' ve-t th e oc-stroclioQ of - , - - - - . ' ' — ^ " — - t>e grr- xrz e^r<;-t to- the «ili. ot the :_ " _. ^ i= the gt}T"err'~g' roie in lise act-on of corporarlons. AngeH Jc A— es oq G^rporalioms. see. ^3^. What the proprietv of g iv n ig to a refosal to rote iDore potency ihaji to a vote cast ? — of allowing a gai " " ^ ^ ' ' ' ~ " r ~te refusing to vote of ii}«:>re e5ei;: ._ _- --- — _ — •which one is a member, than voting : The •: - _ where the o:£eer sppc'inted fails to qiialify w^iai* tea da]*^ aner r-- oerrrn-g notice of his apo«:>i!itn:ent. the omee shall be aifled hy a lie— appointment, did cot reado' tise appoiataBSit f«d on faaiHug to ijEtahr- within the tit: - ' :t sadh faOoie was bet a ct m oc of f"'^--^ire of tn^ oince. which :__ _ ^7 eoaaefl Mstit waive, ajid tfcey d: : wsrre - in proceeding afterward in the a|3fJcoval of ^e bond. Ckiemsf&x. y5 IIL 6:21 : Caidej v. Pwpie^ id. f-t^. L BIGELOW -. HILLMAX. ISoi- IT AT*. 52. The brief statement nlea by 'she defendants set fordi. tiat tii-e i!L>r** (n :\-: was a common and pcbMo highway, etc.. and the a^ts by them done, were what they might lawfnlly do in passng and repairing the same. Before the alleged trespass the town of UnerrDCfe had dtseontzaoed the way. and the p^ainrif nad enclotsed it and pet it ia a star* of eultivatioD.'^ • . • ■ ' y. : -i. J. ... It is objeote-A tna.: :.:e town meerir^ - - - :::n t>-: - - - —as ^ -;:^5Stvi to discontinue this way. was adxximed :, ^ 7 j-^:>. to tj-c time when the plaintiff erected his fences, and sn7;3<--.7--:-: 3.^ S^ the dav oq which the defendants cc»mmitted thfi. -- - ~ra^ by removinii said fences, and that said vote eocM only tajie effect from the day of the fnal adjoumment of the mt- ' : beean>" " s con- -r ■■ "--v it was in the power of the town, at .. -_- :-me d-a _ > cori- * -'Q of the meeting, to reconsider th^ vote by wh , roai had been discontinned. Arf^n^«c:s lad id:^ of ommb Maided — H^ "Without considering whether it would be competent for a town to lis ^^^^ ^^ ^Cy^^ ' SWINDELL V. MAXEY, Jrecousider a vote, after the rights of third parties had intervened, de- I pendent upon such vote,»which maj^ well be doubted, it is sufficient in this case, that the vote discontinui ng this road was absolute in its terniSj and at most, could be liable only to the contingency of being reconsidered at the adjourned meeting. That contingency never hap- pened. The riglits of the plaintiff under that vote, if deemed-COiitiur gent until the tlnal adjournment of the meeting, then became absolute, a nd related back to the day on which the vote was actually passe ^<^.^^. SWINDELL V. STATE, ex rel. MAXEY. ^V*^V>^ 1895. 143 Ind. 153. ;.v^^^*'^<►■^'^^^>7%^ Jordan, J. The relators, James W. Maxey and William 'Keefe, -.^*/" instituted and prosecuted this action in the lower court, in the name of , ^ the State, to obtain a writ of man^[ale against the appellant, as the ^ mayor of the city of Plymouth, Marshall County, Indiana, to compel ^ ^ him to recognize each of them as members of the common council oi-^r^ the city, and permit each of them to exercise the duties of the office of "^^^ councilman. The application for the writ substantially sets forth that j^ on April 25, 1873, Plymouth was incorporated as a city, under and in , /^. pursuance of the general laws of the State of Indiana, applicable to the(V*^ incorporation of cities ; that the city upon its incorporation was &\-^^y^ vided iuto three wards, and that this division continued until the 27th \^ t, day of August, 1894, when the common council thereof, being then \ composed of six councilmen, at a regular meeting, by an ordinauce^-^^^^ duly passed and adopted at said meeting divided the city into four-T^ wards, thereby creating an additional one which was designated as the, r^ " fourth ward " ; that immediately after creating this ward said council jj^^ at the said meeting did appoint the relators as councilmen therefrom^ v to fill the vacancies existing in said council by reason of the creation t\\ of the additional ward. The due qualification of the relators as mem-'">''^^ bers of the council is alleged, and it is charged that the mayor, as the y\f presiding officer of the common council, has refused to recognize them t-^v'-"^ or either of them, and refuses to permit them or either of them, to ex- ercise their rights as such councilmen ; and that he had directed the clerk not to call the names of said relators when present upon occa- sions when it was necessary to constitute a quorum, etc." The appli- cation praj'ed for a peremptory writ of mandate against the appellant, commanding him to recognize the relators as councilmen and to permit them as such to participate iu the business of the council and to dis- charge the duties incumbent upon them as such officers. An alter- 1 " The right of reconsidering lost measures inheres in every body possessing legislative powers." — Whelpley, C. J., in Jersey City v. State, 30 N. J. L. 521, 529^- u.^^ SWINDELL V. MAXEY. 179 native writ was issued which embodied the facts as alleged iu the petition, and required appellant to show cause why the prayer of the relators should not be granted. To this writ appellant unsuccessfully demurred for insufficiency of facts and for a misjoinder of causes of action. An answer in three paragraphs was filed. The first was a general denial. The second alleged, inter alia, that the ordinance iu question was myalid because it was passed in violation of a certain ordained_ rule of the common council of said city, which rule it was alleged controlled and governed the proceedings of the common couu- cll in the adoption of ordinances, and the rule was made a part of this pa ragr aph. By the third paragraph, appellant sought to assail the verity of the alleged proceedings of the coimcTl. The second paragraph of "the answer or return to the writ, upon appellee's motion, was struck out and suppressed by the court, upon the grounds that all competent matters therein set up could be given in evidence under the general u^aiii^l, and for the further reason that the paragraph did not state facts siiifficient to constitute an answer or return to the writ. To this "I'liiiug an exception was duly reserved. Appellees replied in denial to the third paragraph of the answer, and the issues were in this manner joined between the parties, and the cause was submitted to a jury for trial. At the conclusion of the evidence, the court, at the request of the a jjpellees , instructed the jury to find a verdict in their favor which was returned according]}'. Over appellant's motion for a new trial, the court adjudged and or- dered the peremptory writ to issue as pra^-ed for by the appellees. Various errors are assigned and questions presented and urged by the learned attorney for the appellant, among the first of which is, was the application and alternative writ sufficient in facts to entitle appellees to a remedy by mandamus? Upon the theory that the ordinance upou which appellees found their right to exercise the duties of the office to which it is alleged they were duly appointed and qualified, was a valid act of the council, we are of the opinion that this question must be answered iu the affirmative. By section 3531, R. S. 1894 (section 3096, R. S. 1881), the mayor is made the presiding officer of the common council, and in a case of a tie has the casting vote. Under section 3497, R. S. 1894, section 3062, R. S. 1881, the duty is enjoined upou him to see that the laws of the State and the by-laws and ordinances of the / common council be faithfully executed within the city, and to exercise supervision over subordinate officers and recommend to the common council such measures as he may deem to be for the common good. These are some of the latter officer's duties, among others, prescribed by the organic law under which the city of Plymouth was organized. From the facts as averred, it appears, at least, that the relators held a prima facie title or right to the office which they claimed, undisputed by any other adverse claimant ; hence it follows that it was the duty of appellant, as mayor, resulting from his office to recognize the claims of the former and allow them to exercise the duties as members of the 180 SWINDELL V. MAXEY. common council, and upon a refusal to discharge this duty they were entitled to institute an action to enforce a performance thereof by a writ of mandamus. Section 1182, R. S. 1894 (section 1168, R. S. 1881) ; Mannix v. State, 115 Ind. 245, and authorities there cited; City of Madison v. Korhly., 32 Ind. 74. Under such circumstances, it is -well settled that the legality and validity of the election or appointment may be inquired into in any proceedings by mxandamus instituted to compel other persons to recognize the claimant's title to the office, or when he seeks to enter into it or otherwise asserts his rights to act as a duly elected officer. 6 Am. and Eng. Ency. of Law, pp. 384, 385 ; Lawrence V. Ingersoll, 6 L. R. A. 308, and authorities there cited. The two cardinal propositions involved for a decision in this appeal are : First, was the common council of the city of Plymouth authorized ,by law to adopt the ordinance whereby the additional ward was created, . 1 from which the relators were appointed as councilmen? Second, if the council was so empowered, was the ordinance in question legally^'' adu validly adopted ? We will consider and determine these two qu ■'^estions in their order. The following facts are established by the evidence^ in the record : On the 25th of April, 1873, the town of Plymouth was organized as a city, under and in pursuance of the general laws of the State. Tt was immediately thereafter, under section 3468, R. S. 1894 (3027, 1881), divided into three wards, and its common council thereby made to con- sist of six members, and this status of affairs remained until August 27, 1894, when, at a regular meeting of the council, with all of its six members present, at which meeting the mayor, who was the predecessor of appellant, presided, the city was divided into four wards by an ordinance introduced and adopted at said meeting. The proceedings of the council after the introduction of the ordinance at the meeting in question prior to and upon its passage, as shown in the evidence given by the appellees, are substantially as follows : " Councilman Reynolds moved that the rules be suspended and that said ordinance be placed upon its passage by one reading. This mo- tion was seconded by councilman Hughes, and thereupon councilman Baily moved to refer the ordinance, as presented and read, to the com- mittee on ordinances and police." A vote upon this motion resulted in a tie. Three of the councilmen voting in favor of the motion and three against, and thereupon the mayor cast his vote in favor of the negative and declared the motion lost. "Councilman Reynolds then, with the consent of his second, withdrew his motion to suspend the I rules. Councilman Tibbetts then moved that the rules heretofore gov- 1 1 eruing the proceedings of the council, as printed in the ordinance book, I be annulled and repealed." The yeas and naj's were taken on this motion to repeal the rules, and the result was that three of the council- men voted in favor of the motion, and three against, and the vote being a tie, the mayor voted in the affirmative and declared the motion car- ried. It was then moved by councilman Reynolds that the ordinance, SWINDELL V. MAXEY. 181 as read, be placed upon its passage; this vote resulted in a tie, and was declared carried by the mayor casting his vote in favor of the motion. Councihnan Tibbetts then moved that the ordinance, as read, be passed and adopted " upon the one reading," and upon the passage of the ordinance the yeas and nays were taken with the following re- sult : Messrs. Hughes, Reynolds and Tibbetts voted for the adoption of the ordinance, and Gretzinger voted against the adoption, and Baily and Tanner were recorded as not voting, and thereupon the mayor declared the motion carried and the ordinance passed and adopted. Councilman Baily then presented a protest against the action of the council, and moved that his protest be placed upon record. Upon the motion of Messrs. Baily, Gretzinger and Tanner voted in the affirmative, and Messrs. Hughes, Reynolds and Tibbetts voted in the negative, and the mayor cast his vote upon the side of the negative, and declared the motion lost. Subsequent to the passage of the ordinance, in which it was declared that the same shall take effect from and after its passage, and at the same meeting the council pro- ceeded to introduce and pass a resolution, whereby the relators were declared appointed and elected councilmen for the said fourth ward, to serve as such until the next general election. Upon the yeas and nays being taken upon the adoption of this resolution, those who voted in the affirmative were councilmen Hughes, Reynolds and Tibbetts. Baily, Gretzinger and Tanner voted in the negative, and the result being a tie, the mayor cast his vote in favor of the resolution, and de- clared the same adopted ; and the relators were thereupon declared elected, and took the required oath of office. Counsel for appellant /'r^ contend that the action of the council in passing the ordinance dividing L/ the city into wards and thereby forming and constituting the additional one in controversy, was unauthorized, for the reason that the proceed- j!^, /^&^ ings by the council did not conform to section 3469, R. S. 1894 (section! c\ V-*^ ' 3038 R. S. 1881). This section provides that when thirty^ resident free-' \<5 '^^t holders of the ward to be affected, shall petition the common council '^ ' " for the creation of a new ward, or wards, to be formed from added (J— O'-i.'- territory^ or by the consolidation of existing wards, etc., the council shall submit the question to the voters of the city at the next annual "J election. This section was the only express law for the creation of i \KjX ^ ^ new wards, until an act of the Legislature, approved March 4, 1891, rwli'^ ' was passed. Acts 1891, p. 83; section 3470, R. S. 1894. Section 1 gX'A^IiJr^^ of this act provides that the common council of all cities in this State, ^ v>^-' organized under the general law, "shall have the power, and are hereby invested with the authority, to divide the said city into wards, to change the boundaries of existing wards, and to redistrict the cities for ward purposes, whenever, in their judgment, it shall be deemed expedient so to do." It is furthur provided by this section that no division into wards or change of boundaries, or redistricting for ward purposes, shall be made oftener than once in every period of ten years. Section 2 pro- 182 SWINDELL V. MAXEY. vides that the council, upon doing any of the acts enumerated in sec- tion 1, shoU do so by ordinance, etc. By section 3 all laws and parts of laws in conflict with any of the provisions of the act are expressly repealed. By an act of the Legislature, approved March S, 1895 (Acts 1895, p. 173), the act of 1891 was materially amended, and the limitation upon the subsequent action of the council was fixed at two years. It is manifest that the act of 1891 fully invested the common council of such cities as the one in question with the power and au- thority to do by ordinance these acts, wiien it was deemed by it expe- dient so to do. First, to divide the city into wards ; second, to change the boundaries of existing waMs ; third, to redistrict the city for ward purposes. Empowered in this manner to divide the city into wards, it is evident that the council, in the exercise of such power, by dividing the city into wards de novo could, as a natural sequence, create an additional ward or wards, and in this manner occasion a vacancy in the office of councilman, w^hich the council would be authorized to fill by appointment, under the act approved February 26, 1891 (Acts 1891, p. 33). We cannot presume that common councils of cities, w^hose members are the servants of the people, will abuse the power thus granted to them, and unnecessarily create additional wards in their respective municipalities, and thereby impose upon the tax-payers the extra burden of paying the expenses of useless or unnecessary officers. The act of 1S91 (section 3470, R.S. 1894) is broad and plain in its terms or meaning, and is not open to judicial interpretation, unless we eliminate words from the written law, and this we are not authorized to do. This statute covei's the subject-matter of section 3469, snpra, and its provisions are repugnant thereto, hence it follows that the former has necessarily repealed the latter. We are, therefore, compelled to adjudge that the common council of the city of Plymouth had full^ warrant and aTfthority under the act of .1891 to adopt the ordinance, and thereby divide the city into four wards. "^ The s econ d proposition with which we are confronted is vital in its bearing upon the action of the council in passing the ordinance in controversy. The validity of the ordinance is essential or fundamental to the claims made by the relators. If for any reason it is invalid, the rights of the latter are unfounded, and the appellant would be justified in his refusal to recognize them as members of the council, and hence they must necessarily fail in the prosecution of this action. On May 26, 1873, the common council of the appellant's city duly passed and adopted an ordinance embracing a series of rules and regulations for the government of the common council in transacting its business, and as to the mode of proceeding in the enactment of ordinances. Some of these are merely rules of parliamentary law. Section 21 of this 'KJl ordinance is as follows : -^rv^ "All ordinances shall be read three times before being passed, and "-"'' 'V».'' no ordinance shall pass or he read the third time in the same meeting \^ SWINDELL V. MAXEY. 183 ■^^.>j>f (that) it was introduced : Provided^ Ttiat the council may suspend the j rule by a two-thirds vote, and put an ordinance upon its passage by i one reading at the time it is read." There is no question but what this rule was in full force and effect at the time of ihe introduction of the ordinance under consideration, and there is evidence showing that it had generally been recognized and followed by the council in the adoption of ordinances. It is the rule set up and relied upon by appellant in the second paragraph of his answer, in wliich it was, in substance, alleged that the ordinance upon which the rehitors based their claim and right to be recognized and to act as councilmeu, had been passed in violation thereof. During the. trial the court permitted the appellant to introduce this rule or ordi- nance in evidence, but subsequently, before the cause was finally sub- mitted to the jury, upon the motion of appellees the court struck out and withdrew this evidence, over appellant's objections and excep- tions, and this action of the court was assigned as one of the reasons in the motion for a new trial. The trial court seemingly justified its action in eliminating this evidence upon the ground, as insisted by the relators, that this rule had been repealed as the result of the motion made by councilman Tibbetts and carried in the manner as we have here- tofore stated, and that the same was not in force when the ordinance in question was passed The verbal motion made by this councilman as recorded by the clerk by which it was sought to effectually repeal the rules ordained for the government of the council was, to say the least, somewhat indefinite. When recorded it read: " That the rales heretofore governing the pro- ceedings of council as printed in the ordinance book be, and the same are hereby, anyndl&d and repealed."" The italics are our own. Ordinance s of cities are held to be in the nature and chra-acter of local law-T acioptect by a body veste d wim leg- islative a uthority, ancl coupled with the power to enforce obedience to its en actmen ts. The power with which common councils of cities are '■ invested to enact ordinances and by-laws implies the power to amend, change, or repeal them, provided that vested rights are not thereby impaired. But certainly it cannot be successfully asserted that the law will yield its sanction to the mode employed to repeal the one by which the rule in controversy was ordained and established. If the procedure by which the power of repeal was attempted to be exercised upon the occasion in question, could be sustained, then all that would be necessary to accomplish the repeal of all existing ordinances of a city would^ be the adoption, at any regular meeting by the common council, of a mere verbal and general motion to that effect, without any refer- ence whatever to the title, number or date of passage of the ordinance or ordinances, intended to be repealed. In the case of Bills v. City of Goshen, 117 Ind. 221 (3 L. R. A. 261), it was held by this court that a defect to an ordinance could not be cured or amended by moans of a motion subsequently made by a member of the council and put to a 184 SWINDELL V. MAXEY. vote and carried. In Horr and Bemis Municipal Ordinances, section 61, it is said: " Express repeals can only be elifected by an act of equal grade with that by which the ordinance was originally put in operation. No part or feature of an existing ordinance can be changed by a mere resolution of the council, even though signed by the mayor and recorded. A new ordinance must be passed." See also sections 63 and 64, same authority. In Jones v. McAlpine, 64 Ala. 511, an attempt was made by a motion to raise or change the license fee in a certain ordinance by the mayor and board of aldermen of the city of Talladega ; this method was held to be ineffectual in its results. The court said : " Until an ordinance had been adopted by the mayor and aldermen, changing the ordinance of May 9, 1877, the ordinance re- mained in full force, though there was an intention to change, and a declaration of the will of the board that it should be changed." Considered then in the light of the authorities which we have cited, and the manifest reason which necessarily underlies and sustains the rule which they assert, the conclusion is irresistibly reached that the attempt to repeal the ordinance which embraced the series of rules and regulations in question, by the action of the council in adopting^The motion in controversy, was ineffectual, and did not result in the repeaT or abrogation of the rule under consideration. Having reached this conclusion, the inquiry arises as to the effect of the operation of this rule upon the ordinance upon which the relators found their claims, and which was passed and atlopted as it appears by the council in violation of its provisions. It is said in Dillon on Municipal Corpora- tions, section 288 : " After a meeting of the council is duly convened, the mode of proceeding is regulated by the charter or constituent act, by ordinances passed for that purpose, and by the general rules, so far as in their nature applicable, which govern other deliberate and legisla- tive bodies." In section 47 of Bemis and Horr, sxipra, it is said : " The usual statutory direction is that every ordinance shall be read at three different meetings before its final enactment. The direction is neces- sary as a safeguard against too hasty legislation, and its observance mandatory. If neglected, the ordinance is ah initio void." In Beach on Public Corporations, section 494, it is said : "The mode of enacting the ordinance is generally prescribed in the charter or an ordinance^ and their requirements should be strictly complied with. So where the charter prescribes that no by-law shall be passed unless introduced at a previous meeting, the provision has been held to be mandator}', and a by-law passed in violation thereof to be void." In the case of Horner v. Bowleyy 51 Iowa. 620. the question arose as to the validity of a town ordinance authorizing the issuance of a license for the sale of wine and beer. It appeared that the council that adopted the ordi- nance involved in that case consisted of seven members. The st atute of the State provided " that ordinances of a general or permanent na- ture shall be fully and distinctly read on three different days, unless three-fourths of the council shall dispense with the rules." Upon a SWINDELL V. MAXEY. 185 motion to dispense with the reading required under the rule, four members voted in the affirmative, and none in the negative; the mayor decided the motion carried, and the ordinance was adopted. The court said : "As four, the number who voted to suspend the rule, and pass the ordinance, is not three-fourths of seven, it follows that the ordinance was not legally enacted. It was, therefore, void; and no valid act could be done under its provisions." The statutes of Ohio relating to cities require that ordinances of a permanent nature shall be read on three different days, unless three-fourths of the members of the council dispense with the rule. In the appeal of Camjibi'll v. Cin- ckinati, 49 Ohio St. 463, it was held that this provision was mandatory, and that in passing several ordinances " in a lump " it was requisite to suspend the rule as to each in order to render its final adoption legal and valid. In considering the question therein involved, the court, per Dickman, J., said: " But_muiiicipal corporations act not by inher- ent right of legislation, like the Legislature of a State. . . . They are creatuiL's of the btatute, invested with such power and capacity only as isconfencd by the statute, or passes by necessary implication from the statutory giant, and their powers must be strictly pursued. Cooley Const. Liui., Gth ed., 227. Wlllard v. lullinr/ worth, 8 Conn. 247 ; Ex parte Frcmk^ 52 Cal. 606. The rule, therefore, as stated in numerous adjudged cases is, that the mode of procedure to be followed in the enactment of ordinances as prescribed by statute must be strictly ob- served. Such statutory powers constitute conditions precedent ; and, unless the ordinance is adopted in compliance with the conditions and directions thus prescribed, it will have no force. 17 Eng. and Am. Ency. of Law, p. 238, and cases cited. In Clark v. Crane, 5 Mich. 151, the supreme court laid down the rule that ' what the law requires to be done for the protection of the tax-payer is mandatory, and cannot be regarded as merely directory.' The requirement that ordinances . . . shall be fully and distinctly read upon three different days, being designed as a safeguard against I'asli and inconsiderate legislation, and being in a great degree essential to the protection of the rights of property, it should be deemed a mandatory measure intended as a se- curity for the citizen." The case of State, etc., v. Priester, 43 Minn. 373. asserts the same rule and the reason therefor. This court in the appeal of the City of Logansport v. Crockett, 64 Ind. 319, held that section 3534, R. S. 1894 (section 3099, R. S. 1881), which requires that on the adoption or passage of any by-laws, ordi- nances or resolutions, the yeas and nays shall be taken and entered on the record, was mandatory, and that a noncompliance with this provi- sion rendered the adoption of the ordinance nugatory. See Dillon, IMun. Corp., section 291. It is not necessary that we should fur- ther extend the consideration of the question or refer to additional authorities to show that when the legally prescril)ed method <>f pro- b>A M^ cedure in the enactment of an ordinance is neglected or violatLul, the Tatter is tTiei'cby rendered invalid and of no force or effect. This doc- J' ^,:,.j uc.- ...^ v-^^.^, . _ ^' louv 186 SWINDELL V. MAXET. triue, or principle, seems to be firmly settled by many leading au- thorities and decisions. The inquiry then is : Is the same principle applicable when the procedure is one prescribed by an ordinance of the common council enacted under the exercise of the power granted [by the Legislature? There is no statute in this State that embraces or contains tlie provisions or requirements, in regard to the passage of an ordinance by the common council, that are contained in section 21 of the ordinance in question. This right to regulate sucli proceedings in this particular respect seems to have been committed by the Legisla- ture to the common council. Section 3533, R. S. 1894 (section ^3098, R. S. 1881), among -other things provides that "The common council may, by ordinance, pre- scribe such rules and regulations, in addition to those herein contained, for the qualification and official conduct of all city officers, as they may deem for the public good, and which shall not be inconsistent with the provisions of this act." By section 3616, R. S. 1894 (section 315.5, R. S. 1881), it is further provided in addition to the powers expressly granted, that the common council shall have power to make other by-laws and ordinances not inconsistent with the laws of the State and necessary to carry out the objects of the corporation, etc. By these provisions plenary powers are given to the council to pass or adopt ordinances prescribing rules and regulations not inconsistent with law, for its government and control, when duly convened and acting officially, in regard to its proceedings upon the passage of an ordinance or otherwise. We have seen by some of the leading author- ities which we have herein cited, that when the mode of proceeding upon the part of the council in the adoption of an ordinance is regu- lated either by the charter or an ordinance enacted thereunder, this prescribed mode must be strictly followed. Ordinances of a city duly enacted are in the nature of laws, being the decree or will of the com- mon council, which body is vested with legislative authority. Public policy demands and authority sanctions the delegation of various powers of local legislation to this municipal body. The ordinances enacted in the exercise of these powers have, within the corporate limits of the city, the force of laws. They are held by the courts to be, within these limits, as binding as the laws of the State and general government, and are enforced in a similar manner and under like rules of construction. AVheu an ordinance is duly and legally passed, under the warrant of the Legislature, it is in force by the authority of the State. Bemis and Horr Munic. Ordinances, section 2 ; Beach Pub. Corp., sections 482, 486. A by-law or ordinance Avhich a municipal corporation is authorized to adopt is as binding on its members and otllcers, and all other persons within its limits, as a statute of the Legislature. Heland v. City of Lowell, 85 Mass. 407 (3d Allen) ; P'iunsylcania Co. v. Stegemeier, 118 Ind. 305, and authorities cited; Tiedeman Munic. Corp., section 153; Dillon Munic. Corp., sections 307, 308. SWINDELL V. MAXEY. 187 In Milne v. Davidson, 8 Martin, 586 (La., 5 N. S.), a contract en- tered into in contravention of an ordinance of the city of New Orleans was held to be void. The court said: " The ordinances of a corpora- tion while acting within the powers conferred upon them by the Legis- lature, have as binding an effect on the particular members of that corporation as the Acts of the General Assembly have on the citizens throughout the State ; and it is as much a breach of duty to evade or violate the one as it would be to evade or violate the other. The moral or legal obligation to obey them is the same, and the consequence of nonobedience ought to be the same." These many authorities which substantially enunciate and sustain the proposition that a municipal ordinance is a local law or statute (upon which rests both the moral and legal obligation to obey of all persons subject thereto), and that the results of a non-compliance with the mandatory or prohibitory provisions thereof, must in reason be the same in effect, as follow the disobedience or disregard of an act of the Legislature of like import, warrant the conclusion and holding that when the charter law of a city does not regulate the mode of procedure to be observed upon the adoption of an ordinance by the council, but has committ ed the authority or power sa.io_jdo to th at body which, in pursuance thereof, has prescribed by ordinance an essential and salutary rule, mandatory and prohibitory in its provisions as is the one under consideration, the council must yield to it their obedience, and J.ujhe^ eiiaeiment of an ordinance must be controlled thereby^^imlaaa^sus;^ peuded in the manner or by the vote provided, and that the conse- quence of refusing to substantially comply with its provision s~ or a viola tion of its inhibition must, in reason, be the same as the non- complia nce with or a violation of a requirement prescribed by the statute. "'■'''""' — -—^ The section of the ordinance in question prescribed substantially that "All ordinances shall be read three times before being passed. No ordinance shall pass or be read at the same meeting in which it was introduced." The word " all " may mean every, and is to be con- strued in this connection. Bloom v. Xenia, 32 Ohio St. 461. We may, therefore, read the rule thus : "Every ordinance shall be read, etc." The first clause is mandatory and the second prohibitory. Such a rule prescribed for the government of legislative bodies is recognized by the courts as a salutary one. It is a check upon what sometimes i might prove to be ill advised, prematurely considered, or pernicious] legislation. If a common council were permitted to wilfully ignore,} utterly disobey, and violate an ordained rule of this character, injurious results to the inhabitants of the corporation might and possibly would result. It is, therefore, the duty of courts to require a strict compliance with mandatory provisions of the law of the character and purpose of the one in question. A two-thirds vote of the council was required to suspend the rule ; this, in reason at least, must be construed and 188 STECKEKT V. EAST SAGINAW. f^iJ^' held to mean not less than two-thirds of all the members present at any meeting of the council. Atkins v. Phillips, 10 L. R. A, 158, 26 Fla. 281. It appears from the record, that the acts of the council antecedent to, and including the final passage of the ordinance creating the ward in controversy, received the votes of, and were sanctioned by, three only of the six councilmen present at the meeting. Three cannot be held to be two-thirds of six, hence, in no manner, or upon any view of the case, was a suspension of the rule effected. Viewed then in the light of the reason and logic of the authorities herein cited, we are constrained to hold and adjudge that the ordinance having been passed in noncompliance with, and in violation of, the ordained rule in con- troversy, it is invalid and inoperative, and that the action of the council based thereon in appointing the relators, is likewise void, and, consequently, the latter cannot successfully maintain this action. City ofLogausport v. Legg, 20 Ind. 315. Appellant was entitled to expose by sufficient facts in his answer the invalidity of the relators' appoint- ment, and to prove the same by evidence upon the trial. While, per- haps, the second paragraph of the answer, or return, contained some irrelevant or impertinent facts that might have been eliminated upon motion, still the facts alleged as to the ordinance having been adopted in disregard and violation of the rule in question were pertinent and material in defense of the action, and the paragraph ought not to have been suppressed. Atkinson v. Wabash R. JR. Co., at last term (41 N. E. R. 947). We must not be understood as holding by this opinion that the nonobservance of mere technical rules of parliamentary law which are employed for convenience in governing the action of common councils, would result in rendering an act of such bodies otherwise valid invalid, but our holding is confined to the particular rule under the circum- \ stances and facts in question. From the conclusion we have reached, it follows that the trial court erred in striking out the second paragraph of the answer, and also in holding that the rule had been repealed by the motion as made, and the judgment cannot be sustained. It is therefore reversed and the cause is remanded, with instructions to the lower courno~vacate its order awarding the peremptory writ of mamlate, and to overrule the motion to strike out the second paragraph of appellant's answer, and grant him leave, if requested, to file an amended one, and for further^ proceedings in accordance with this opinion. o/*^'*'v>^ o V STECKERT v. EAST SAGINAW, 1870. 22 Mich. 104. CooLEY, J. This is a bill to restrain t he collection of an assessment for paving Washington street, in the city of East Saginaw, with what /■ V^ STECKEKT V. EAST SAGINAW. 189 is known as the Nicholson pavement. The complainants are owners of lots in said city upon which the assessment is a lieu, and they ask for a perpetual injunction against its collection upon the ground that the proceedings to levy it have not been in accordance with tlie charter of the city, which prescribes the several steps to be taken in such cases. ^ (\ ClJi/~«^ The first ground of alleged invalidity in the proceedings is that the several votes in the common council ordering the improvement made, directing a contract therefor and the levy of an assessment for pay- ment of the expense thereof, were not taken by ayes and noes as the charter requires. I The provision of the charter on this subject is that "Whenever re- quired by two members, the votes of all the members of the common council, in relation to any act, proceeding or proposition, had at any meeting, shall b e en ter ed at l arge o n the m inutes ; and such vote shall- 1 al so be e ntered in relation to the adoption of any resolution or ord^i- nance, report of a committee or other act, fOF taxing or assessing the citizens of said city, or involving the appropriation of public moneys.". S. L. 1859, p. 971. The proceedings in question were such that the votes thereon were required, under this section, to be entered at large on the minutes whether specially required by two members or not. The defendants insist that this section has been complied with, in substance and in spirit, in every instance ; while the complainants on the other hand argue that a disregard of its provisions is manifest throughout. Upon this point the evidence of the minutes must be conclusive, and if we find the votes entered there at large, the objection must fail. On looking at the minutes we find that the votes have uniformly (^ _^o— J,^ been entered and recorded in the same way ; and we may therefore take the proceedings on any one of the several votes as a sample of them all. The vote ordering the contract for paving the street to be entered into was had June 29, 1868. The record of the meeting of i.jo-vs^\.y-»- the council on that evening begins as follows : Vm>JC-X^ " Regular meeting, Monday evening, June 29, 1868. The council met pursuant to adjournment. Present, Aldermen Buckhout, Carlisle, Eastman, Morley, Owen, Wood and Zimmerman. — 7. By Alderman Carlisle, "Whereas," etc., [here follow the resolutions, after which is this minute]. Adopted una nimously on call. Unless the minute is a compliance with the section of the charter in question, it is not claimed by the defendants that it has been complied with at all ; but their argument is that the record shows, Jirst, the names of the several aldermen who were present when this action was had ; second, that the roll was called on the vote ; and third, that each of them, when the roll was called, voted for the adoption of the resolu- tions. This being so, the vote is, in effect, entered at large on the minutes, and the repetition of the names of the alderman in the minutes, when the precise position of each upon the resolutions submitted was 190 STECKERT V. EA.ST SAGINAW. already recorded, would have been only an idle ceremony, accomplish- ing no useful purpose. We have found ourselves unable to take the same view of this record that is taken by the counsel for defendants. There can be no doubt ^j^ ^ that t he i^rovision of the statute which requires th ese votes to lie , , entered at large on the minutes, was designed to accomplish an im- •■*^'''^; . poi'tant public purpose, and that it cannot be regarded as immaterial, ► "^V^*"^^ n6r~Tts"ol3servance le di^Densed with. Spanghr v. Jacohy, 14 111. .^y,J>Ji3=^ 297; Supervisors of ScJuafiq' Co. v. Tlie People, 25 111. 183. The purpose, among other things, i^^to make the members of the common council feel the responsibility of their action when these important measures are upon their passage, and to compel each member to bear his share in the responsibility, by a record of his action which should no1t afterwards be open to dispute. Now if tlie record in the present case shows precisely who voted for the resolution in question, it is apparent that the object of the statute has been fulfilled, and we may be able to sustain the action, notwithstanding the compliance with its provisions has not been exactly literal. "We are of opinion that the record does not show with sufficient cer- tainty that all the members present at roll~eall, at tlie opening of the meeting in question, voted for the resolutions; ami if it does not show that all did, it does not show that any particular one of them did. AVhat it does show is, that at roll-call when the meeting was opened certain members named were present, and that afterwards, before the , meeting adjourned, certain resolutions were adopted unanimously on 1 vvv-'^'^'^all. Now if it were a legal presumption that all the members who ^- s • were present at the call to order of such a meeting remained until its adjournment, and that no others came in and took their seats after- wards, and if it were also a presumption that every member voted on each resolution on roll-call, the argument of defendants would be com- plete, and we could say with legal certainty from this record that these resolutions were passed with the affirmative vote of each of the mem- bers named as present in the clerk's minutes of the meeting in question. But surely there are no such presumptions of law, and if there were, they would be contradictory to the common experience of similar offi- cial bodies. It is very well known that it is neither observed nor ex- u-«o i'>'^' pected that when a legislative body of any grade has commenced its ./>-^j» daily session, the doors will be closed to prevent the ingress of mem- . bers not prompt in arrival, or the egress of others who may have occa- '*""')/ sion to leave. The actual attendance on such a body will frequently be found to change materially from hour to hour, so that a record that a vote was passed unanimously would be very slight evidence that any particular member present at the roll-call voted for it, or that any member not then present did not. And even if the record could be held to afford a presumption on that subject, its character must be so t^jint, doubtful, and unreliable as to subserve no valuable purpose. Cx^ \l t ^ "^ r, ^^,a.,.--^g,->-:>T- ^-^ I ^ ^ "t^frL . S S "^ /( w k I l-O . STECKERT V. EAST SAGINAW. 191 IMoreover, the members actually present are usually allowed to vote or not to vote at their option, except in cases of close votes, or where an appeal is to be made to the people ; and if the vote of a quorum is in favor of a resolution and no vote is cast against it, the record may still be that it was "adopted unanimously on call," though some of the members present abstained from voting. "What is designed by this statute is, to fix upon each member who takes part in the proceedings on these resolutions, the precise share of responsibility which he ought to bear, and that by such an unequivocal record that he shall never be able to deny either his participation or the character of his vote. But manifestly we cannot determine in the present case with any certaintv that any one of the aldermen named — Aldergiai3_Biicldi£Uit, for example — actually voted for the resolu- tions in question. We know he was present when the council con- vened, but we have no record which points specifically to his individual action afterwards. Suppose he were to contest the tax as illegal, and flTe Clty^a-ulhorities were to insist upon an equitable estoppel arising upon his vote in its favor, and he should deny such vote, we should look in vain in this record for anything absolutely inconsistent with such denial. Suppose his constituents, dissatisfied with this vote, undertake to call him to account for his participation, and he were to say to them, " I was not present when these resolutions were adopted ; I was indeed present when the council convened, but was called away soon after on private business ; " this record plainly could not be relied upon to contradict his assertion. The persons arraigning him would be obliged, in order to fix his responsibility, to resort to the parol evi- dence of his associates or of bvstanders. But the legislature under- stood very well the unsatisfactory character of that kind of evidence, and they did not Intend that the power to call an alderman to account/ for misconduct, delinquencies, or errors of judgment in the perform- i auce of this official duty, should be left to depend upon it. They have/ ^""^'^ imperatively required that there should be record evidence of a char-." ..->«a c acter that should not be open to contradiction, or subject to dispute ; (i_^,..J^ vj-SS and their requirement cannot be complied with according to its terms, nor satisfied in its spirit and purpose, without entries in the minutes showing who voted on each resolution embraced by the section quoted from the charter, and how the vote of each was cast. In other words, the ayes and noes on each resolution must be entered at large on the minutes, so that the presence or participation of any member shall not be left to conjecture or inference. It was frankly conceded on the argument by the counsel for the city, that if we reached this conclusion, the assessments in question must ^ be declared void, unless the complainants could be held estopped from (iI^_»-^*^'^~^ raising the objection on certain equitable grounds which were insisted 0-4aW-*"- upon. One of these grounds applies only to three of the comj)lainants, i*^' ^ - and it consists in the fact that they were petitioners to the common council to have this very improvement made. (K 192 STECKERT V. EAST SAGINAW. In 3Iotz V. Detroit, 18 Mich. 495, we held that where parties peti- tioned the city authorities to have a certain improvement made which was provided for by the city charter and ordinances, they must be understood as requesting that it be done under such charter and ordi- nances, and if those turned out to be invalid, the petitioners were not entitled to set up such invalidity as a basis for equitable relief against the action which they had requested. The case before us, however, is of a different character. The complainants do not claim that the charter under which the assessment was made is void, but they com- plain that its provisions have not been followed. Three of the com- plainants admit asking that the improvement be made in accordance with the law, but they aver that the attempt has been made to con- struct it in disregard of the law, and that their interests are injuriously affected by the failure of the council to follow the statutory provisions. If they are correct in their facts, we do not see how they can be estopped from claiming relief. The second grojand of estoppg l applies to all the complainants, and ^^^j;dti/yvi^ it consists in the fact that they were all residents of the city of East *AJ ■» Saginaw, and presumptively cognizant of the proceedings being taken, ■j^ ^^Tj and of the irregularities which existed, and yet made no complaint ^^^ " until the woi'k was completed, though they 'knew that under the charter ■■^ ■ the contractor who did the work could only be paid from this assess- jvvv^if-'*^"-*-'-' j^Q^^ -jjjjg ground of estoppel appears to us to be rather far-reaching and somewhat dangerous. To hold that a ma n is bound at his peril to take notice of illegal action on the part of the public autliorities, is carrying the doctrine of constructive notice very much farther than the" authorities will warrant. TVe think, on the other hand, that the citizen has a right to assume that the law is being obeyed, instead of violated, n.>f\^ f ' by the public authorities, and that, at least in the absence of any evi- ■ ^'"''^^ dence of previous knowledge on his part of their unlawful action, he ' * ' is in time with his protest when they proceed to deprive him of his rights under such proceedings. We do not find, therefore, that any principle of estoppel will preclude the complainants from the relief prayed. As the views already expressed dispose of the case, we might, per- haps, with propriety abstain from going farther, luit there are some other questions presented by the record which are liable to arise again, and therefore ought, in justice to the parties, to be disposed of now. \^.^Ais-^ One ground of invalidity assigned by the complainants is, that two ^^ of the aldermen who formed a part of the quorum of the common coun- rv Wv J' ' cil when important action was taken, and without whose presence and ^a^*A * votes there would have been no quorum, were petitioners for the im- ''***\>r^ provement, and owners of property liable to assessment therefor. The y*'^^^,$'>'^^ votes of these aldermen, it is claimed, were void, and consequently the action of the council, to which their votes were essential, was void also. We think this objection without force. The action in question was legislative in character, and the interest these aldermen had in it was STECKERT V. EAST SAGINAW. 193 of precisely the same nature with that which every legislator has in a bill he votes for, which is to subject his property, in common with that of his fellow citizens, to taxation. They were layin g down rules, which iu^ their o]:ieiatiaa_would-affect-iilili.e^n(l imuartiallv their o wn interest aiidthat pf all .othera_w.hQ&e--Pi"operty woiild beL-taxed. Such an inter- est is calculated to make a man careful and solicitous for the public interest, with which his own is inseparably connected, instead of inclin- ing him to vote recklessly or corruptly when burdens are to follow which he must share. None of the cases cited on the argument in this connection have any bearing. Those only decide that a man is not to be permitted to occupy inconsistent positions when his own interest is directl}' involved ; but in no question here voted upon could these aldermen have discriminated between their personal interest and that of the other tax-payers, except in fixing the taxing district ; and as on \\e\j (' that question if they voted at all it was against their apparent interest, _^/t_j[^ and in favor of making the district which included their property the smallest possible, it is obvious that they did not by their vote place themselves in a position antagonistic to other tax-payers. If the common council acted as commissioners jjfap^pojtionmeut in making /^^'l the assessment upon the property that was to bear the burden, other considerations might be involved ; but this charter designates a differ- ent tribunal for that purpose and prescribes g'-eat caution to insure impartiality. On the confirmation of the commissioners' report ques- tions might have arisen in which the interest of these aldermen would have been direct and special ; but no such appear by this record. . It is also objected that the resolution of the common council declar- CS-^-o^ ^ ing the improvement contemplated to be necessary, is required by the charter (Laws of 1859, p. 997) to describe the improvement, while in the one adopted no sutHcient description appears. The contemplated improvement is only described as the paving of the street with the Nicholson pavement between specified termini. But we think this a sufficient compliance with the charter. The Nicholson pavement is a process well known and understood ; and *^"^ nothing but a very general description can be required or be important ^^ in this resolution. We also think that the removal of earth for the „^ „ paving and the settmg of curb-stones, concerning which some question a..JLts- is made by the bill, may properly be treated as incidental to this pav- ing, and not as separate improvements requiring to be described and ordered specifically as such. Two other objections are not so easy of disposition. One is that the resolution of the council, appointing commissioners to make an assess- ment of the expense of the improvement upon the property benefited, laid down a rule for their action which made it imperative on the com- missioners to assess upon each lot the expense of paving in front of it, and allow them no discretion to adopt any different basis of assess- ment if they regarded any other more equitable. The resolution in question is of very uncertain construction, and we 194 STECKEET V. EAST SAGINAW. are not entirely satisfied that complainants are correct in the view U they take of it. But it does not become necessary to decide this point, as in any event the decision cannot depend upon it. It is enough to say that, under the charter, the council have no power to give direc- tions which shall govern the commissioners in making their assessment. The commissioners are "to make an assessment upon all the owners or occupants of lands and houses within the portion or part of the city so designated [by which is meant, within the taxing district previously designated by the common council], of the amount of expense in pro- portion as nearly as may be to the advantage which each shall be deemed to acquire by making of such improvements" (Laws of 1859, p. 1011) ; and it is their judgment and not that of the common council which is to determine whether the adjoining lots are benefited in pro- portion to their respective street fronts, or whether, on the other hand, the assessment ought not to be apportioned on some other basis than that of frontage. The second objection just referred to is, that the commissioners, in their report of the assessment to the common council, did not report the valuation of the respective lots assessed. This is expressly re- quired by the charter (Laws 1861, p. 50), but the defendants jnsist ^^ that the provision on this subject is merely directory, since it can sub- serve no valuable purpose when the assessments are not made on a basis of valuation, and therefore the tax-payers have no interest in its being complied with. "We think, however, that the tax-payers ma}' have an interest in its " being complied with. The commissioners are not precluded from mak- ing their assessment with some reference to valuation ; and as the com- mon council review their action, and hear and decide complaints of inequality and injustice, the respective valuations of lots constitute important information to be possessed by them when proceeding to perform this duty. It is easj- to see, where an assessment is made \ with reference mainly to frontage, that it might sometimes be exceed- "^^ ^'^ ingly equitable to take valuation somewhat into account also, at least in exceptional cases ; and we cannot say, therefore, that the require- ment that the valuation shall be returned is not mandatory. We think all lc2,'i-lative provisions, in such cases, should be regarded as manda- , ton', where they seein to be a(l(.ipte(l for the ])rotection of the tax- 1 payer, and may have ah important influence in shield ing him from llin i unequal and unjust burdens. For the reasons given we are constrained to affirm, with costs, the decree of the court below. Campbell, Ch. J. and Graves, J. concurred. Christiancy, J. did not sit in this case. • V "^^P^ V PORTLAND V. YICK. 195 fi-.. %^ VANCOUVER V. WINTLER. 1894. 8 Wash. 378. Stiles, J. The respondent, a city of the third class, seeks in this action to foreclose certain liens for street assessments against parcels of laud abutting on the street and owned in severalty by the appellants. There were originally three separate actions, but under stipulation they came up as one case. 1. The first point made by appellants is, that the general ordinance governing street assessments was void because not passed in the manner required by the statute. ^ The law governing the passage of ordinances is contained in Gen, Stat., §635, the first clause of which is : " No ordinance, and no resolution granting any franchise for anyl purpose, shall be passed by the city council on the day of its introduc-j lion, nor within five days thereafter, nor at any other than a regular! meeting, nor without being first submitted to the city attorney." The respondent has deemed it important to claim, and argue at length, that the provision applies only to ordinances and resolutions granting franchises ; but we think the position is untenable. It is the only provision in the act, of which it was a part, governing the matter of the passage of laws by the council, and the last clause of the section, which relates to the number of votes required to pass any ordinance, resolution or order, clearly shows an intention to make a general ap- plication of the whole section to all ordinances of every kind and for every purpose. But the complaint of the appellants is that, although more than five days elapsed between the introduction of ordinance 242 and its pas- sage, the original ordinance was not passed, but a substitute re-' ported by the city attorney. It is a well-known practice of legisla-; tive bodies to proceed in this manner, and jo long as th e substitute is clearly withi n the limits of the subject matter of the origliial j)ro£osi- tionwe see no reason w hy mu nicipal councils should not proceed in the same way. It is a mere method of am endment , and if the changes made are such as mighFhave been brought about by ordinary amend- ments the statute is not infringed. This was the case with the ordinauce in question, and it was therefore properly passed. ■^ PORTLAND V. YICK. 1904. 44 Or. 439. T7oLVERTON, J. The defendant was convicted in the Municipal Court of the City of Portland of the violation of ordinance No. 11,336, H 1 Only so much of the opinion as discusses this point is given. — Ed. ^ eK^.^r•U^»^ 196 PORTLAND V. YICK. and appealed to the circuit court, wherein he was again convicted, and now appeals to this court. He is charged with the violation of section 2 of the ordinance, which provides : . OjOliiCiJ* " ^^ person or persons shall within the corporate limits of the City '^^ of Portland set up or keep, either as owner, proprietor, keeper, man- ager, or employe, with or without hire, lessee or otherwise, any house, shop or place for the purpose of selling any lottery ticket, certificate, paper or instrument, purporting or representing, or understood to be or to represent, any ticket, chance, share or interest in or depending upon the event of any lottery." Section 6 provides for the punishment of any violation of the ordi- nance by fine or imprisonment, or both. When the city offered evi- dence at the trial in the circuit court it was met with the objection by the defendant that the ordinance had not been adopted in the manner provided by charter and the rules governing the common council, and was therefore void and inoperative. None . of the. records _Qf,. ..the c om- mon council relative to the adoption of the ordinance were introduced ih^evidence, but the court was asked to take judicial knowledge thereof, and thereby determine the validity of its adoption. Under section 27 of the city charter of 1898 (Laws 1898, pp. 101, 108), the common council was authorized to adopt rules for the government of its mem- bers and its proceedings. It was required, however, to keep a journal of its proceedings, and upon the call of any two of its members to cause the yeas and nays to be taken and entered in the journal upon any question before it. In pursuance of this charter regulation, the following among other rules were adopted, viz : " Rule 2&. No standing rule as provided by this ordinance shall be rescinded or suspended, except by vote of two-thirds of all the mem- bers present, and the ayes and nays shall be recorded on any motion to suspend a rule. "Rule 27. Ever}' ordinance shall receive three readings previous to its being passed, but shall not be read more than twice at any one 9-> I ^^^^^'^'V*"^*" meeting. The journal shows that the ordinance was read the first time and dCi second time by title, and, on motion of Councilman Harris, duly sec- onded and carried, Rule 27 was suspended, the ordinance read a third time by title, placed upon its final passage, and passed by 11 yeas, giving the names of the councilmen voting yes. The ordinance has this attestation at the bottom : "Passed the Council, March 21, 1900. A. N. Gambell, Auditor. "Approved, March 22, 1900. W. A. Storey, Mayor." On the back there are attached two slips, each containing the names of the ^ouncilmen, with tlie words, "Yeas," "Nays," at the top in separate columns. One of them bears at the top the notation in pencil, " Suspension Rule 27," and opposite each name in the column n-^ -i^*-^^ " ■ <^ -^ <>- A *--^ ' PORTLAND V. YICK. 197 headed " Yeas " a perpendicular pencil mark. The other bears at the top the word " Passage," with a like mark opposite each name in the column headed " Yeas," thus indicating that liule 27 was suspended by a unanimous vote, and the ordinance passed by a like vote, the latter showing the vote to be the same as recorded in the journal. 1. Preliminarily, it is urged that the courts will not take judicial knowledge of the acts of the common council leading to the adoption of an ordinance, but only of the text or provisions of the ordinance. It will be noted that the charter regulations relating to the keeping of a journal by the common council are almost identical with the require- ments of the state constitution for the government of each house of the legislative assembly. This court said in State v. lingers, 22 Or. 348, 364 (30 Pac. 74), Mr. Justice Bean announcing the opinion : " In Currie v. Southern Pac. Co., 21 Or. 566 (28 Pac. 884), we held . that the court will take judicial knowledge of the journals of the legis- lature for the purpose of impeaching the validity of the enrolled act on ^ file with the Secretary of State ; and when from such journals it affirm- V'^~ atively appears that the bill as filed in the Secretary of State's office did not in fact pass the legislature, the courts will refuse to recognize it as a valid law ; but everj- reasonable presumption is to be made in favor of the legislative proceedings ; and when the constitution does not require certain proceedings to be entered in the journal, the absence of such a record will not invalidate a law It will not be pre- sumed, from the mere silence of the journal, that either house has ex- ceeded its authority or disregarded constitutional requirements in the passage of legislative acts." The bill which was the subject of con- troversy in that case passed the house and was amended in the senate. When returned to the house that body concurred in the amendments. This was shown by the journal, but it did not show that the bill as amended was read section by section on the final passage, nor that the vote was taken by yeas and nays, as required by article IV, § 19, of the constitution. Conceding that the yeas and nays should have been thus taken in that instance, the court further say : ' ' We must assume, in the absence of a showing to the contrary, that the con- stitutional requirements were observed, and hold that the act under consideration was constitutionally passed." In the Currie case, alluded to in the opinion of the court in State v. /Rogers, 22 Or. 348 (30 Pac. 74), the bill went to the senate after passing the house, and the jour- nal shows that it was put upon its final passage, when it received 13 yeas and 11 nays. There were five absent and one senator was ex- cused; "so," continues the record, "the bill failed to pass." There was an affirmative showing that the bill failed to pass, and the court took judicial cognizance of the record in the journal, and declared the act inoperative. The same principle was announced in 3fcKinnon v. Cotner, 30 Or. 588, 591 (49 Pac. 956). The bill in that instance passed the house, went to the senate, and was amended by the addition of section 8, V 198 POKTLAND V. YICK. being an emergency clause, and passed, when it was returned to the house and the amendment concurred in. This is all shown by the journals of the two houses, but no other reference is made therein to the bill, except to show that it was duly signed by the presiding officers. The enrolled act so signed was approved by the Governor, filed in the office of the Secretary of State, and published among the general laws, but it did not contain section 8, and the act was held valid because it nowhere appeared in the journals that the act did not pass in the form actually signed by the presiding officers and as found on file in the office of the Secretary of State. In all these cases, if we are rightly informed, the court took judicial knowledge of the state of the record as shown by the journals in the two houses, without the necessity of their introduction in evidence. Indeed, the general rule seems to be that courts will take judicial notice of the contents of the journals and other records of legislative bodies, required to be kept by 'tlie fundamental law, which may in any manner affect the validity of the meaning and proper construction of an act. But further than this "they will not go, and they will not take judicial cognizance of any fact that is without legal potency to affect the validity of the act or to ex- plain its meaning or construction: 17 Am. & Eng. Enc. Law (2 ed.), 928, 929; Division of Howard County, 15 Kan. 194; People \. Ma- haney, 13 Mich. 481 ; Green v. Weller, 32 Miss. 630; Somers v. State, 3 S. D. 321 (58 N. W. 804) ; Bitcliie v. Richards, 14 Utah, 345 (47 Pac. 670) ; McDonald v. State, 80 Wis. 407 (50 N. W. 185). Under the doctrine of this court it will not look behind the enrolled bill having: the signatures of the presiding officers of the two houses and filed in the office of the Secretary of State, except to determine whether it ap- pears affirmatively from the records of those bodies that the man- datory provisions of the constitution have not been observed in the enactment; and, unless it does so appear, the law will not be declared invalid. Mere silence of the journals as to such a requirement will not suffice to overthrow it, unless it might be in a case where the con- stitution requires an entr}^ in the journal, as the presumption will then obtain that the legislature proceeded i-egularly and properlj'. Such being the ascertained rule and doctrine, the further solution of the present problem is not difficult. 2. The_niunicipal courts will take, judicial notice of the ordinances -^L^-' "" of tjie municipality and of such journals and records of the law-making 'V/\ bod y as affect their validity, meaning, and construction in liko manner Ji vK^"^ ^°^ foflike purposes as the courts of the State take judicial cogni- zance of the public statutes of the State, and, in the event of an appejil to the circuit court, although by the rules of law the case is to be tried de noco, the circuit court will take like judicial notice of such ordi- nances as the municipal courts. We are not sajnng that it will not do so upon any other principle, but it will upon this, which suffices for the determination of the present controversy : City of Solomon v. Hughes, 24 Kan. 211; Doionincj v. City of Milton vale, 36 Kan. 740 PORTLAND V. YICK. 199 (14 Pac. 281) ; State ^for rtse v. Lf.ihP. Orte CitjJ v. Qr^nflfolln^i^ ^ A'J Tr.-n,-n^ ^ /'. 1 IT owa, 407 : Town of La- { 1^1^^ ItTJlXn'own of MounidCsville v. Y^'^ elton, 85 W. Va. 217 (13 S. E. 373). 3. The charter as to the comm on nnnnoil atnnrls in thft same rela- \ \v^,,^^ Oy^ tioa that the constitution flops to t |ip t.wr> hnnet^g pf ti^^ Ifigjf^lflt^^i'' ^^.r.^^ Jb. assembly ^ and, if the ordinauce in question is to be impeached or over thrown , it must appear atiinnjj^j^ely fi'om tli*.' journal of the com- mon council that the mandatory provisions of the fuiidamSIainaV^ i^i>»<\f^ relative to the passage of the ordinauce have not_ been obeerved. The ' ^^k courts will not look into minor records that the council may require to be kept to determine "whether tlie rules which it has adopted for the orderly dispatch of the business before it have been complied with, and whenever it is not affirmatively shown by the journal (mere silence of the record not amounting to such a showing) that the charter provisions relative to the adoption of the ordinance have not been com- plied with, the ordinance in controversy must be deemed to have been regularly adopted. Now, the ordinance under consideration ap- pears affirmatively from the journal to have received a majority vote o all the members of the common council. This was sufficient to indi cate its adoption: Laws 1898, pp. 101, 109, § 30. 4. The record as to the suspension of the rules is not required by ^ the charter to be kept in the journal, and, if it were at all material to the present controvers}^ the record of the yeas and nays on the sus- pension of the rules kept by the common council upon slips attached to the ordinance is amply sufficient to show a compliance with the rules. It was the method employed by the common council for keep- ing the record, and, being by it deemed sufficient for the purpose, the courts will not intervene to hold it void. 5. It is next contended that the common council was not em- VC^J^- -»^ powered to adopt the ordinance. The delegated power is " to prevent and suppress gaming and gambling_lK)uses, or places where any game in which chance predominates is played for anything of value." This! is unquestionably broad enough to authorize the common council to prevent the setting up or keeping of any house or place for the purpose of selling lottery tickets or certificates depending upon the event of a lottery, which is essentially the purpose of section 2 of the ordinance in question. The setting up or keeping of such a house is in itself an overt act, and constitutes the offense, the object of the charter being to prevent and suppress gambling houses. Lottery, it has been held, is a gaming device (Ex parte Kameta, 36 Or. 251, 60 Pac. 394, 78 Am. St. Rep. 775), and the keeping of a house for the purpose of sell- ing lotterj' tickets is as much within the spirit and intendment of the charter as if it was kept for any other kind of gambling. 6. Another objection urged to the ordinance is that the acts pro- hibited thereby are not declared to be crimes or misdemeanors, or even to be unlawful. A penaltj', however, is prescribed for their violation, and this is all that is necessary to notify persons of the unlawful character of the offense. \^^ 200 PEVEY V. AYLWARD. 7. The next and last objection preferred is that the auditor did not attest the ordinance as " Auditor of the City of Portland," as he is styled in the charter: Laws 1898, pp. 101, 119, § 46. Manifestly, the answer to this is that neither the signing nor the attestation of the ordinance by the auditor is essential to its validity under the charter. It might be, and no doubt is, convenient, and perhaps essential, to identify the ordinance in its transmission to the mayor and return to the council body that he attest it, or place upon it his file mark ; but we are not aware that any such formality is required in order to com- plete its perfect enactment, so as to give it the force of law. These considerations affirm the judgment of the trial court, and such will be the order of this court. Affirmed. PEVEY V. AYLWARD. 1910. 205 Mass. 102. Kkowlton, C. J. This is a petition for a writ of mandamus to prevent the respondent Aylward from acting as city solicitor for the city of Cambridge, and to compel recognition of the petitioner's alleged right to that office. The question turns upon the validity of Mr. Ay] ward's election, which was declared by the common council in concurrence with the board of aldermen on June 29, 1909. It is not now contended that the election was invalid because it was not held in the month of April, according to the requirement of the St. 1891, c. 364, § 20. See Butter v. Wliite, 204 Mass. 59 ; Cheney v. Coughlin, 201 Mass. 204. On June 29, 1909, this respondent was legally elected by the board of aldermen, and notice of his election was sent to the common council. The statutory provision is as follows: "In the year one thousand nine hundred and eight, and every third year thereafter, in the month of April, the city council, by concurrent vote, the board of aldermen acting first, shall elect a solicitor for the city of Cambridge," etc. St. 1891, c. 364, §20, as amended by St. 1907, c. 491. By the M jR. L. c. 26, §7, it is provided that "no election of a city officer by a municipal body or board shall be valid imless made by a viva voce vote, each member who is present answering to his name when it is called by the clerk or other proper officer, stating the name of the person for Whom he votes, or that he declines to vote." The first objection of the petitioner to the election is that it was in violation of §21 of the Joint Rules and Orders of the City Council, which provides that every ordinance and every order requiring coil-" current action shall, after passing one board, remain in the possession pf the clerk of that board for thirty-six hours. This is to give an opportunity for a motion for reconsideration, according to the later provision of the same section^ and provisions on the same subject in PEVEY V. AYLWARD. - 201 §18 of the Rules of the Board of Aldermen, and §17 of the Rules of the Common Council. But these rules are not applicable to the election of a city solicitor, under the requirement of the statute. Such ScL,> an election j g iiot n.n nrdinnnpp or order, within the mean ingof the rule. Section 21, after the requirement stated above, provides that if no motion for reconsideration is entered, the ordinance or order shall be sent to the clerk of the other board, who shall cause the same to be printed in the calendar, etc. In this case there was no ordinance or order. There was a vote upon an oral motion, in the board of aldcr- "men, to proceert to the election of a city solicitor. Then an election was iTart in' tlie" manner prescribed by the statute. The result was recorded and notice of what had been done was sent to the common council. The proceeding is not within the definitions of orders and ordinances in §§1, 2 of the joint rules,^ nor is it within the meaning and object of §21. This objection of the petitioner is not well founded. The next question arises upon proceedings after a motion to adjourn in the common council. The record is as follows : "At this time Councilman Beane submitted a motion ' That the Common Council do now adjourn.' " The President declared this motion to be carried, and immediately , Wvw^*- left the chair. " The vote on this motion was doubted. " Councilman Nelligan assumed the chair at once, and Councilman Murphy submitted a motion that Councilman Nelligan be chosen President temporarily. " This motion was declared to be carried. " On motion of Councilman Trodden, a committee consisting of Councilman Horan and Councilman Murphy was appointed to wait on the President and request him to resume his duties. "This committee reported that they were unable to find the President. "The aforesaid communication from the Board of Aldermen giving notice of the election of James F. Aylward as City Solicitor, was then read by the President pro temj^ore. "Councilman Horan submitted a motion that the Common Council proceed to the election of a Citj'^ Solicitor. "This motion was declared to be carried. "The roll of members was called by the clerk and each member present announced his choice for City Solicitor as follows : " Then follows the record of the vote of each member present, showing twelve votes for the respondent Aylward and two for the petitioner, and ^ The sections referred to are as follows : " Section 1. All by-laws passed by the city council shall be termed ordinances ; and the enacting style shall be, ' Be it ordained by the city council of the City of Cambridge. ' " Sect. 2. In all votes, by which either or both branches of the city council express anything by way of command, the form of expression shall be, ' Ordered ' ; and whenever either or both branches express opinions, principles, facts or purposes, the form shall be ' Resolved. ' " 202 PEVEY V. AYLWAItD. showing the names of the absent members, who were eight in numbei*. Mr. Aj'lward was dcclarerl elected city sohcitor, in concurrence with the board of aldermen, and notice was sent to that board. The petitioner contends that the common council was adjourned, and that the subsequent proceedings were all invalid. We must construe the record as meaning that the vote to adjourn, as declared, was doubted without delay. Under §2 of the Rules and Orders of the Common Council, i it is the^duty o^ the president, in such cases, to resolve the.doubt at once by requiring '-the members voting in the affirmative and negative to rise and stand until they are counted." That would be his duty if there were no such rule. This president did not relieve himself of the duty by " immediately " leaving the chair. As he ceased to act as presiding officer, the members were obliged to choose some one else to act in his stead, and their choice of a president pro fmpoFe was properly made. HoU'v. SomerviUe, 127 Mass. 408, 411. Bennett v. Xeio Bedford, 110 Mass. 433, 438. It is objected that this was illegal because §1 of the rules declares that "in the absence of the president, the clerk, and in his absence, the senior member present, shall call the council to order, and preside until a president pro tempore is chosen by ballot." But this rule applies to the organization of a meeting in the absence of the president. It has no application to a case where the meeting is organized and doing business, and the president abandons his post, and leaves the meeting without a presiding officer. In such a case the meeting properly may choose a presiding officer in any reasonable way. The clerk may preside until the temporary president is chosen, or anj' member may do so. As soon as the temporary president was chosen, it was the duty of the meeting to resolve tlie doubt on the motion to adjourn, in accordance with the rule. In their method of doing this they did not follow the rule. But apparently by common consent, and without objection by anybody, they did resolve the doubt by proceeding to do business. Tliis action was inconsistent with any other conclusion upon the motion to adjourn than that it was not carried. The president's declaration of adjournment had no effect to bring the meeting to an end when the vote declared was promptly doubted. The meet- ing continued without being adjourned, and took action which was equivalent to a decision that the motion to adjourn was not carried. Bakery. Cushman, 127 Mass. 105, 106. Williams v. Gloucester, 148 Mass. 256, 260. Wood v. Milton, 197 Mass. 531. While this was 1 The sections referred to are as follows : "Section 1. The president shall call the council to order at the hour to which it has adjourned, and a quorum being present, shall proceed to tlie regular order of business. In the absence of the president, the clerk, and in his absence, the senior member present, shall call the council to order, and preside until the president pro tempore is cho-^en by ballot. A plurality of votes sliall elect. " Sect. 2. The president shall declare all votes. If any member doubts the vote, the president, without further debate upon the question, shall require the members voting in the affirmative and negative to rise and stand until they are counted." ELLIOTT V. CHICAGO. 203 irregular, its meaning was plain, and seemingly, it was by the unanimous consent of all the members present. It was, therefore, as effectual as if it had been re<>ular. See Attorney General v. liemick, 73 N. H. 25 ; Hicks v. Long Branch, 40 Vroom, 300, 303; Putnam v. Langley, 133 Mass. 204 ; Wood v. Cutter, 138 Mass. 149. Wheelock V. Loioell, 196 Mass. 220, 230. Sinclair v. Mayor of Fall Ricer, 198 Mass. 248, 256. The attemp t to adjourn having thus been disposed of, the election was valid. It was agreed to, not only by a majorit}^ of the members present, "but by a majority of the members of the whole common council. Even if there had been irregularities in the election itself, unless the}'^ were such as to defeat or render doubtful the expression of the will of the voters, the court would desire to give effect to the action of the majorit3\ Attorney General v. Campbell, 191 Mass. 497, 502. Blackmer v. Hildreth, 181 Mass. 29, 32. Commonioealth V. Smith, 132 Mass. 289, 296. People v. Wood, 148 N. Y. 142. As the respondent Aylward was legally elected, the right of the petitioner, who was holding over after the expiration of his term of office until his successor should be chosen, was thereby terminated. Q —...^^ Petition dismissed. h. Administrative. <^^^ "O^^^!]^' ELLIOTT V. CHICAGO. iJ^ , 9^\^ ^ 1868, 48 ///. 293. ''^^x-^C^;^' Breese, J. This was an application by A. H. Heald, city collector of the city of Chicago, to the Superior Court, for judgment against certain lots in that city, assessed for certain improvements on Michigan avenue. >-'*^ The appellant, Elliott, appeared, and made objections to the entry A^ , of any judgment against the property assessed in his name, on the ^^"^ . grounds — 1st, That no notice, as required by law, was given of the application for judgment. 2d. The commissioners willfully and fraudulently failed and refused to assess real estate, knowing the same to be specially benefited by the proposed improvement. 3d. Because all the material retjuirements of the city charter, as to the passing of the ordinance for (the improvement) and as to the acts of the com- missioners of the Board of Public Works, and of the Common Council and officers of the city, have not been complied with. 4th. No notice, as required by law, was given of the meeting of the commissioners for the purpose of making the assessment; and 5th, no notice, as required by law, was given of the filing of the assessment roll with the city clerk, or the commissioners' intended confirmation thereof. These objections were overruled, and judgment entered for the amount assessed, with one per cent per month since September 6, 204 TAPPAN V. SCHOOL DISTEICT NO. 1. 1867, and costs, and an order entered that sufficient of the property assessed be sold to satisfy the judgment. To reverse this judgment, Elliot appeals to this court. In support of the second objection, appellant called several witnesses, who all concurred in testifying that other property on Michigan avenue, not assessed, was benefited by this proposed improvement, as thereby the value of the property was enhanced. Had these witnesses occupied the position of the Board of Public "Works, thej', doubtless, acting on their own judgments and official oaths, might have assessed the property not included in the assess- ment by the commissioners. The commissioners were acting under oath, and were to be controlled by the judgment of none others but their own, and on their oaths have made their return that the lots assessed were specially benefited by the proposed improvement, and their judgment must stand, unless impeached for fraud, not the slight- est proof of which is exhibited in this case. As matter of necessity, their judgments must control, else there could be no such improve- ments. If a board of public works, selected, as must be supposed, for their good judgment, integrity and general capacity, should, under their official oaths, declare by their report that certain property is specially benefited by a proposed improvement, can it be that their judgment shall be overthrown by the testimony of others no more in- . telligent and no more honest than they? The judgment of men greatly '"^ differs in almost every case demanding its exercise, and in cases like this, it must be shown it was unfairly or fraudulently exercised,, to authorize a court to nullify it. Their judgment must be conclusive in the absence of all fraud. City of Chicago v. Burtice.^ 24 111. 489. The other objections have no foundation. All the material require- ments of the law have been substantially complied with, and all the proceedings, from their inception to the final judgment, have been regular, and in accordance with the charter. Perceiving no error in the record, the judgment is affirmed. Judgment affirmed.^ TAPPAN V. SCHOOL DISTRICT No. 1. 1880. 44 Mich. 500. Graves, J.^ August 31, 1878, the defendant's trustees entered into a written contract with Tappan to hire him to teach defendant's school for the term of forty weeks beginning on the first day of the school year, September 2d, at S50 per month and board himself. The school was organized as a graded one in 1873 and so remained. He began teaching under the contract on the second of September and ^Part of the opinion is omitted.— Ed. ALLEN V. WELLES. 205 continued two days. He was then dismissed by defendant's trustees, but no cause was expressed. September 24, 1^79, he Ijrought this action for damages. The circuit judge heard the case upon the facts and refused to allow a recovery. It is said that the trustees who contracted with Tappan were not empowered to hire for any time beyond the current school 3'ear to ex- pire on the arrival of the annual meeting, September 2d, and that the contract so made on the 31st of August was not binding on the dis- trict after September first. In the case of graded schools the trustees are not annually renewed. The Legislature has seen fit to give the board more permanence. One- third only or two out of six go out yearly. A purpose to secure an administration for these branches more stable and efficient in the in- terest of education than is very common under the general law, is plain enough, and there is no implication of a design that the power of the board should be so fettered that no teaching to commence on the first day of the school year could be lawfully contracted for until the annual meeting on that day should be closed. On the contrary, it may be fairly argued that the Legislature contemplated that these schools would generally open on the beginning of the school year, and tEat the teachers would have to be contracted with in season therefor^ anci that some time would be necessary to enable the trustees to per- form with due care the important duty of selecting and hiring. It is scarcely necessary to enlarge upon the question. The contract ap- pears to have been within the power of the trustees, and the record discloses nothing to impeach it. Neither the trustees nor the voters at the annual meeting had power to impair its obligation. "Whether they resolved or not that none but female teachers should be employed is not important. _^ „ , i PEOPLE EX REL. ALLEN v. WELLES. y\\y^^,fy\ 1895. 14 iV. y. .1/«c. 226. >5-^o:: 5B0RNE, J. This is a proceeding by cerdoxjjuU to review the action of the respondent, as commissioner of police and excise, in dismissing the relator from the police force. By the charter of the city of Brooklyn (Chap. 583, Laws of 1888. tit. 11, § 9) the commissioner of police and excise was authorized " to make such rules, regulations and orders for the government of the police force as he ma}^ deem proper," and he was also authorized (§ 15), on conviction for violation of rules, etc., to punish by dismissal from the force. It appears from the return to the writ that, on or about October 23, 1893, Hon. Henry I. Hayden, the then commissioner, caused to be :^\' 206 ALLEN V. WELLES. adopted, issued and published certain rules and regulations for the government of the police force, and these rules have never been repealed. One of such rules (Rule 12, § 5) required each patrolman to remain on his post ''until the time assigned for the expiration of his tour of duty," except in certain specified cases not relating to the matters in issue here. Another of said rules (Rule 25, § 5) forbade any member of the force becoming intoxicated, and further provided, in addition to being suspended and reported, that, in case "he became violent, disorderly, or unable to take care of himself, he should be detained as a prisoner and taken before a magistrate at the next sitting of the court." On December 18, 1893, the relator was appointed a patrolman of the police force, and at about that time a copy of the said rules and regulations was furnished him. On or about February 1, 1894, the respondent was duly appointed commissioner of police and excise, in place of Mr. Hayden, whose term of otBce had expired. On January 24, 1895, charges were preferred by the captain of his precinct, against the relator, for a violation of both of the above- mentioned rules, and he was also taken before Police Justice Haggarty on a charge of intoxication. The relator appeared in person and by counsel before the com- missioner in answer to said charges; a trial was had, witnesses examined on both sides, and, after deliberation, the commissioner ad- judged the relator to be guilty of both of the charges preferred against him, and dismissed him from the police force. The relator now seeks, by writ of certiorari, to review this determination of the commissioner and to have it reversed. The learned counsel for the relator urges that, as the present police commissioner had never adoj^ted as his own and promulgated the rules and regulations issued by his predecessor, there were no rules of the department in existence under which the relator could be disciplined by the present commissioner. This contention cannot be sustained. The police department is a continuous body, and, while the executive headThereof may be changed from time to time, such change never contemplated the readoption of all previous rules and regulations in orderTo inalte them binding on the force; those rules and regula- tibiis~s'tood, not as the act or declaration of an individual, but of the official head of the department, and they continued to be binding on the police force till altered or repealed by the proper authority. ^ 1 The remainder of the opinion is omitted. — Ed. 'V^j 1 20: .-^A- Q^JlAMcCOfiTLE ?;. BATES. if^%jy^\i>>*^ McCORTLEv. BATES. 1876. 29 Ohio St. 419. ir^ Motion for leave to file a petition in error to the District Court of Noble county. The original action was brouglit by the plaintiffs against Bethel Bates, Andrew J. Moore, Josephus Groves, E. H. Craft, and I. Q. Morris, in the Court of Common PJeas of Noble county. The following are the facts, so far as they are material to be noticed: On the loth day of October, 1870, the defendants were members of the board of education of vSeneca township, in said courty, and on that day they entered into an agreement in writing with one J. S. Wachob, of which the following is a copy: "Mr. J. S. Wachob is hereby requested to forward to Herman Suabidissen, township clerk, the following list of articles, viz : Seven excelsior globes, seven inches in diameter, mounted as per cut here- with, provided a majority of the members of the board of education of Seneca township. Noble county, Ohio, sign this order; and we hereby agree to pay for the same on or before the first day of September, 1871, with interest, at the price hereto annexed. " The township clerk is hereby directed to issue an order on the township in the pa3'ment for the same in favor of said Wachob, pay- able as above specified, and he is further requested to call a special meeting of said board within days, at which meeting we agree with each other that we will ratify this contract. ' ' Bethel Bates, "Andrew J. Moore, " Josephus Groves, "E. H. Craft, "I. Q. Morri^. " October IS, 1870." Then followed a long list of school apparatus with prices annexed, the price annexed to the globes contracted for being Sl5 each. The glubes were delivered to the township clerk, who drew an order on the treasurer of the township, as directed, for ^105, in favor of Wachob, payable September 1, 1871. This order and Wachob's interest in the above-recited agreement were assigned by him to the plaintiff, after which the board of education, acting in its corporate capacity, re- pudiated the contract, and the treasurer refused to pay the order; whei-euponThe plaintiff brought his action against the members of the board signing the contract to recover upon their alleged individual promise to pay for the globes. The defendants demurred to a petition stating the foi-egoing facts, upon the ground that the facts stated were 208 McCORTLE V. BATES. insufficient to constitute a cause of action. The demurrer was sus- tained, and the petition dismissed. On error, the district court af- firmed the judgment of the common pleas. Leave is here asked to file a petition to reverse both judgments. BoTNTON, J. The contract sued upon having none of the attributes or immunities of commercial paper, the plaintiff, by the assignment by Wachob of his claim against the defendants, secured and succeeded to such rights, and such only, as Wachob possessed at the time of the transfer. Such defenses as would have been allowed had he retained the claim and brought suit upon it himself, are now admissible against the plaintiff. Assuming, without deciding, that by the understanding of the parties to the agreement the defendants incurred a personal liability, it is quite clear that there was no error in the action of the common pleas in sustaining the demurrer and dismissing the petition. The request to Wachob to forward the globes, provided a majority of the board signed the order ; the agreement to pay for the same on or before September 1, 1871; the direction to the township clerk to " issue " an order on the township in favor of Wachob for the amount agreed upon ; the request to the clerk to call a special meeting of the board for action upon the matter, and the agreement among the mem- bers signing the contract to ratify the same at such meeting, were all elements of the same transaction. The paper on which they were written contained the price-list of school apparatus belonging to Wachob, and it was delivered to him after it was signed by the de- fendants. He was not only cognizant of its contents, but a party to its stipulations. The promise or agreement of the members of the board, inter sese, to ratify the contract at the meeting to be called, was to the knowledge of Wachob a material inducement to the agreement to pur- chase, and made for his benefit. He accepted an order drawn on the treasurer in anticipation of such ratification. It was an, agreement to avoid or evade personal liability, if any was incurred, by shifting it to the township. It is not unlike, in its legal aspect, a promise or agreement by a legislator, or member of a city or town council, to act and vote upon a pending measure, in a certain way, for a considera- tion paid. Such promise or agreement was clearly contrary to pu])lic policy, and therefore illegal and void. Its effect is to vitiate the whole instrument. The board is constituted, by statute, a body politic and corporate in law, and as such is invested with certain corporate powers, and charged with the performance of certain public duties. These powers are to be exercised, and these duties discharged, in the mode pre- scribed by law. The members composing the board have no power to act as a board, except when together in session. They then act as a body or unit. The statute requires the clerk to record, in a book to be provided for that purpose, all their official proceedings. They have, in their corporate capacity, the title, care, and custody of all school HOFFMAN V. BOARD OF EDUCATION. 209 property whatever within their jurisdiction, and are invested with full power to control the same in such manner as they may think will best subserve the interest of the common schools and the cause of educa- tion. They are required to prescribe rules and regulations for the government of all the common schools within the township. Clothed with such powers, and charged with such duties and such responsi- bilities, it will not be permitted to them to make any agreement among themselves, or with~others, b}- which their i)ul)lic actio n is to be, or _ may hv lestniiiud or embairasseil, _or its freedom in any wise affected "or imijaired. The public, for whom tliey act, have the right to their Te¥t judgment after free and full discussion and consultation among themselves of, and upon, the public matters intrusted to them, in the session provided for by the statute. This cannot be when the mem- bers, by pre-engagement, are under contract to pursue a certain line of argument or action, whether the same will be conducive to the pub- lic good or not. It is one of the oldest rules of the common law, that contracts contrary to sound morals, or against public polic}'^, will not be enforced by courts of justice — ex facto illicito non oritur actio ; ^ and t he court will not e^ter_on_.thg...iajj[iiiiy^.sJLe.tb,er„su^^^ uj-^.-A:iJU would, or would not in a given ease, be injurious, iu its.OQiiseqiieJJCjgsl if enforced. J t being against the public interest to enforce it, the law refuses to recognize its claim to validity. ,__<,, ' Leave refused. ^^'^-^^^ • ''" tK^ ' >-^ i^EOPLE EX REL. HOFFMAN v. BOARD OF EDUCATION. "qV^^ Earl, J.i The relator was principal of one of the public schools ir the cit}' of New York, and she was fined by the board of education " fifteen days' pay for disobeying the instructions of the city superin- tendent"; and she instituted this proceeding by c ertiorari t o review and reverse the imposition of that fine. She claims that tLe board had no authority to impose the fine, and in this we think she is clearly right. The imposition of a fine is a species of punishment, and before any body, tribunal or officer can impose it, authority therefor must be clearly found in some statute. Sections 1022 and 1026 of the New York City Consolidation Act of 1882 provide that the board of education "shall have full control of the public schools and the public school system of the city, subject only to the general statutes of the state upon education " ; and this is the sole provision of law invoked by the respondents as authority for the imposition of the fine. Under it the board of education may ^ Arguments omitted. — Ed. 210 HOFFMAN V. BOARD OF EDUCATION. establish schools, regulate the course of instruction therein, and shape the entire educational system for the cit3^ It may provide for the discipline and government of the scholars in the schools. But could it impose pecuniary fines upon them for any misconduct or dereliction, and thus deprive them of their property? Could it imprison them or sit in solemn judgment upon them and order the infliction of corporeal punishment? If it could not do these things, much less could it dis- cipline or punish teachers in these ways. The relator never in any way submitted herself to such a jurisdiction, and there is no general law which confers it. If the board could thus deprive her of fifteen days' pay, where is the limit? Why could it not deprive her of one month's pay or a whole year's salary already earned? If it could com- pel her to forfeit money already earned, why could it not enforce a fine against her other property? If the board has such a power, where are its limits and who is to define them? If the board had adopted by-laws for the regulation of the schools^ and the teacTiers therein, and the' relator had assented to tlaem, then they might have become binding upon her as part of her contract with fIie"'l5oard, and under such by-laws it might have had power of discip- line and control over teachers which it could not otherwise have or possess. But here there was no by-law, rule or regulation known or assented to by the relator under which any fine could be imposed upon her. The board of education can, under certain conditions mentioned in the laws, remove teachers, and by the exercise of that power it can protect the schools against the incompetency and the improper conduct of teachers. The board of education is a quasi municipal or governmental corpo- ration7~and no such corporation has power to impose fines or to pass ordinances authorizing the imposition of fines without the clear author- ity of some statute. In Dillon on Municipal Corporations, sees. 345 and 348, it is said: "A corporation, under a general power to make by-laws, cannot make a by-law ordering a forfeiture of property. To warrant the exercise of such an extraordinary authority by a local and limited jurisdiction, the rule is reasonably adopted that such author- ity must be expressly conferred by the legislature." " In this coun- try, inasmuch as corporations derive all their power from charter or act of the legislature, the right to inflict a forfeiture must be plainly given, and cannot be derived fr^m usage." In Kirk v. Nowill (1 T. R. 124) the question was whether a corporation which possessed a gen- eral power to make by laws could make a by-law creating a forfeiture, and Lord Mansfield held that no corporation possessed such an ex- traordinary power unless it was expressly given ; and Mr. Justice BuLLER also said that construing it a by-law creating a forfeiture, the act of Parliament not having given the corporation power to make such a by-law, it was bad on that ground; and a similar doctrine was laid down in Hart v. Mayor, etc. (9 Wend. 571, 588), and Dtrnhain V. Bodicster (5 Cow. 462), and in many other cases. This fine was in STAGE V. MACKIE. 211 the nature of a forfeitii]^«^, ^f vnlifl., n-g it nrnnpnlTpd the relator to forf uLt dportioa of her salary earned. i As this fine was imposed upon the relator without authority it could do her uo harm, and could not stand in the way of the collection by i her of her salary as a teacher, and, therefore, it may well be doubted whether she could properly institute this proceeding by certiorari to review and reverse the utterly void and harmless proceeding of the board of education. But as this proceeding was entertained in the court below, and no objection has been made to its propriety, we will assume that it was proper ; and our conclusion is that the order of the General Term and the proceeding of the board of education imposing the fine should be reversed and set aside, with costs to the relator in this court and the court below. ^ Section III. — Officers. ^^f ^^''^vJi'^'^TATE EX REL. STAGE v. MACKIE. (y^^^*^^*^ 1909. 74.4^^.759. v ^ O^, Appeal from Superior Court, New Haven county; George W. -x-^^^^Xf^HEELER, Judge. D\i Information in the nature of quo r varrantq by the State, on the ^ relation of Otto G. Stage, against Robert Mackie. There was a -sA'^judgment ousting respondent from office and affirming the right of relator to it, and respondent appeals. Error, and judgment set aside. .f^ A^ The charter of the city of Waterbury provided that its board of ^.fi^ aldermen might, in a manner prescribed, make ordinances " to provide % for the appointment of a building inspector and to prescribe his duties." It also conferred upon the board "the power to provide for the appointment or election of such employes a s are not otherwise provided for, and as may be required for the proper transaction of the business of the city, and to prescribe their duties and compensation." Having this authority, the board adopted an ordinance creating the oflSce of building inspector, and defining the powers and duties of its incumbent. It was also provided that there should be a deputy building inspector, that he should act in place of the building inspector and exercise all of his powers during the latter's absence or disability, and in the event of the latter's death perform all of his duties until an appointment should be made to fill the vacancy, that he should be biennially appointed by the board in the month of January of the even numbered years, and that he should hold office for two years from the first Monday of February next following his appointment, and until his successor was duly appointed and qualified. Under this ordinance one Smith was appointed for the term of two years from the first Monday of February, 1904. In April, 1905, the 212 STAGE V. MACKIE. General Assembly passed a special act (14 Sp. Laws, p. 619). which provided that the building inspector and assistant building inspector of the city of Waterbury then in office should hold their respective offices during good behavior subject to a power of removal in a manner prescribed. Smith died March 5, 1906, and the board in June elected the relator deputy building inspector to fill Smith's uuexpired term. The relator thereupon qualified and entered upon the duties of the position. January 20, 1908, the board proceeded to the election of a deputy building inspector for the term of two years from the first Monday of February next following. The votes of the entire board were cast for the respondent, who was a member of the board, present, and voting for himself, and he was declared appointed. The respond- ent thereupon qualified, and entered upon the duties assigned to said position, which he has since continued to perform to the exclusion of the relator. 'I!^e__board of aldermen took no action declaring said position vacant, or creating a vacancy therein, except said appoint^ meht of the respondent. The relator made ineffectual demand of the respondent for the office, which is one of profit. The relator claims the office, contending that his appointment thereto was one at the will of the board of aldermen, and that the board has taken no lawful action terminating his term. He contends that the attempted appoint- ment of the respondent as his successor cannot have the effect of either terminating his term or of entitling the respondent to succeed him, since the respondent was a member of the board of aldermen and voted for himself, and for the further reason that his duties as inspector of buildings would be incompatible with his duties as an alderman. Prentice, J. (after stating the facts as above). Quo tcarranto proceedings lie to prevent the usurpation of a public office or franchise. These were begun to try the title to a position attempted to be created by an ordinance of the city of Waterbury, and attempted to be filled by the board of aldermen of the city. They must fail for the reason that there is no such office. To justify a resort to the extraordinary remedy here iuvoked, there must be an office legally authorized and constituted. State v. North, 42 Conn. 79, 86 ; CommoniceaUh v. Dear- horn, 15 Mass. 125; High on Extraordinary Legal Remedies, §625. The position in question is one to which the ordinance creating it attempted to attach important powers and functions of government belonging to the sovereignty, and therefore was a " public office," as distinguished from a mere employment or agency resting on contract, and to which such powers and functions are not attached. Perkins x. New ITa.ifenj 6o Conn. 214, 215 1 Atl. 825; Seymour v. Ooer-River School District, 53 Conn. 502, 509 3 Atl. 552 ; Rylands v. Pinkerman, 63 Conn. 176, 182, 28 Atl. 110, 22 L. R. A. 653. "A public office is a right, authority, and duty created and conferred by law, by which ... an individual is invested with some portion of the sovereign func- tions of the government to be exercised by him for the benefit of the public." Mechem on Public Officers, § 1. '• It implies a delegation of STAGE V. MACKIE. 213 a portion of the sovereign po'wer to and possession of it by the person filling the office." United States v. Hartivell, 6 Wall. 385, 393 (lb L. Ed. 830); Opinion of the Justices, 3 Greenl. (Me.) 481, 482 ; Pattonx. Board of Health, 127 Cal. 388, 394, 59 Pac. 702, 78 Am. St. Rep. 66. It is a trust conferred by public authority for a public purpose, and involving the exercise of the powers and duties of some portion of the sovereign power. Clark v. Easton, 146 Mass. 43, 45, 14 N. E. 795; Attorney General v. Drohan, 169 Mass. 534, 535, 48 N. E. 279, 61 Am. St. Rep. 301 ; People v. Kij^ley, 171 111. 44, 71, 49 N. E. 229, 4i L. R. A. 775. Such being the nature of a public office, it is apparent that its source must in this country be found in the sovereign authority speaking through Constitution and statute. The creations of the sov- ereign power cannot, in the absence of a delegated authority, create one. High on Extraordinary Remedies, § 426 ; ,^^ate_y.^ Sjmidding, 102 Iowa, 639, 647, 72 N. W. 288; Patton y. Board of'HealtX'W Cal. 38&',"^^,"'o9 Pac. 702, 78 Am. St. Rep. 66; Miller v. Warner, 42 App. Div. 208, 209, 59 N. Y. Supp. 956 ; Cooimonwealth v. Swasey, 133 Mass. 538, 589. The source of the alleged office here in controversy is a city ordi- nance. The state had delegated to the city in its charter the power to provide for the appointment of a building inspector, and to prescribe his duties. 12 Sp. Laws 1895, p. 438, § 21. It had not delegated the power to provide for the appointment of a deputy building inspector, and to prescribe his duties. T lie city was without inherent power to create such a public position and to endow it with the jurisdiction and authonty "aUempteH 16~ be conferred. No such power was impliedly graivEedTjy the charter provision referred to. The right to create one office^does^ot imply the right to create two. The right to provide for the appointment of an officer does not involve or imply the right to provide for substitutes and alternates ad libitum. The right to pre - scribe the power and duties of a designated ollicial, and to endow him with that power, does not carry with it t he right to end ow several per- sons in the alternative with. that power. The charter provision giving the board power to provide for the ap-, pointnicnt or election of employes, and to- prescribe their dufres"aiT'd compensation, was also inadequate as a conferment of authority to create public offices, to provide for the choice of incumbents, and to endow those incumbents with portions of the sovereign power at pleas- ure. Thjs provision was limited in its application to employes, and its language was chosen to clearly indicate that fact. Ifis scarcely con- ceivable that the state should have delegated to~one of its creations its sovereign power in any such wholesale way as to enable the latter to create such offices as it pleased, and attach to them the exercise of such portions of the sovereign power as it pleased, and thus surrender to its creature its power of direction and dictation, and the charter provision referred to was too carefully guarded in its language to give countenance to such a contention. 214 FITZPATRICK V. FRENCH. It might possibly be a wise precaution to provide for the contingency of the death, absence or disability of the single official for which the sovereign authority has provided ; but that is a matter for whicli that authority is alone qualified to deal. It has not done so save as the special act of 1905 concerned the matter. Whatever may have been the effect of that act during the lifetime of the then incumbent, it could not have amounted to a ratification of the city ordinance, as permanent legislation, creating the office of deputy or assistant build- ing inspector, and defining the powers and duties attached to it. There is error, the judgment is set aside, and the cause remanded for the rendition of a judgment dismissing the information. The other Judges concur. $^V.--^^. \rt«J ^ ' ' PEOPLE EX REL. FITZPATRICK v. FREXCH. 1884. 32 Hun. 112. ^jf** ^ Certiorari t o review the action of the board of police commission- ers in removing the relator from the police force. Davis, P. J.^ The relator was tried upon a charge of " conduct unbecoming an officer." The specification was, in substance, that the relator on the 14th of April, 1883. " during his tour of patrol duty, pre- tended that the window of a drinking saloon, No. 16 Dutch street, had been burglariously broken by some person unknown and a short time after entered the said saloon and wrongfully broke open boxes contain- ing cigars, the property of the owner of the saloon, and surreptitiously, without consent of the owner, took and carried away in his pocket one hundred and sixteen cigars, which were subsequently found upon his person when he was searched and identified by William A. Jen- nings, the proprietor of said drinking saloon, as his property." It is not asserted that there was any irregularity in form in the pro- ceedings and trial of the relator, but it is insisted : First. That the charge imported a criminal offense of either burglary or larceny, which the commissioners had no jurisdiction to try ; and second, That the evidence was not sufficient to justify a conviction of any offense, or of " conduct unbecoming an officer." o The other question of the case is whether the commissioners had jurisdiction to try the charge set out in the specification. This ques- tion arises only upon the assumption that the specification set out a criminal offense, for which the relator might be indicted and tried in a court of justice, and that therefore he could not be tried and removed by the commissioners until he had been cou^^cted on trial by a crim- inal court. • • •• •• •• 1 Part of the opinion only is given. — Ed. FITZPATKICK V. FKENCH. 2.15 This argument, it is manifest, altogether rests upon the idea that the inquiry of the board of police contravenes the provisions of the Constitution which secure to persons accused of crime the established modes of trial upon indictment and before a court and jury in the higher classes of crime, and the procedure in and by courts with or without jury in the lower grades. But it ignores the fact that the in- p^.^ vesti"ation of the police board is not such a trial and entails no such consequiMices u[)()n an accused party. It is precisely analogous to the investigation by any other corporate body of the fitness of its servants to remain in charge of the duties they are appointed to perform, or of members of the corporate body to continue in that relation. The city of New York is a public corporation. The police department is one of the agencies through which its functions are to be performed ; and no court has ever held that the heads of that department cannot be re- moved upon adequate grounds in the manner the legislature may see fit to prescribe. But the argument is that if he be a murderer, or felon, or criminal of any grade, the legislature cannot authorize his removal by any authority until he has first been indicted, tried and convicted and sentenced by a constitutional court of justice in the forms preserved by the Constitution. It is not well to confuse lhe_ powers of administrative or executive bodies to remove subordinates for any conduct showing unfitness for place or position, with the pra- ceediugs of courts of justice to punish crimes. They are essentially different in their objects, and may and do exert and move in their re- spective spheres without collision or inconsistency. If it be true that a policeman guilty of felony cannot be removed by the board till after his conviction and sentence in a court of justice, because of constitu- tional prevention, then some astute lawyer will speedily insist that a felon cannot be removed at all for crime, because the same constitu- tional safeguards provide that he shall not be twice tried or punished for the same offense. The answer will be that a conviction of felony forfeits all public oflice ; but not so of misdemeanors, and where the convict has paid the penalty imposed by the court, why should he not interpose the plea of autrefois convict, when the police board arraign him for trial and another punishment? It has been seen that legal offenses are all grades of crime. Let us consider for a moment the effect of the construction given to the section authorizing trial bj' the board of police, which requires conviction by a court of justice before removal or any other punishment. A policeman when arraigned be- fore the board in such a case may always answer to the offense, "I am charged with a crime, you must arrest your proceedings till I am convicted in court" ; and then if the board venture to proceed, a writ of prohibition must issue from the court for want of jurisdiction in in the board. The policeman may never be indicted or even arrested for the offense, or never brought to trial in court; but that makes no difference with the question of jurisdiction of the board, since convic- tion in court is a condition precedent; and so the police force may 216 FITZPATEICK V. FKENCH. grow in time into a body of accomplished criminals, whom the com- missioners cannot remove nor suspend, nor withhold their pay, nor even reprimand, because the dilatory or over-crowded courts do not bring them to trial and conviction. And again, if a policeman guilty of any crime, however monstrous, can slip through the meshes of the law on some technicality, he can laugh at both courts and commission- ers and hold his office by the absolute title of an unconvicted police- man. When we consider the vast scope of the phrase " legal offenses," we shall be able to estimate the possible, if not probable, conse- quences of such a rule as is laid down in Siebert's case. Every misdemeanor as well as every felonj' triable by any court is within its significance ; and as every willful neglect of duty by a public officer is a misdemeanor, the power of the board to remove before conviction is reduced substantially to cases of accident, where there should perhaps be no removal at all. The offender could defeat jurisdiction in all cases by showing that his offense was willful, or that he violated the rules intentionally, or that he purposely was guilty of the " conduct in- jurious to public morals." Every policeman charged with crime, Avho could get out on bail, no matter what his offense, nor how clearly provable, could still walk the street .clad in a policeman's uniform, with authority to club his fellow citizens till his trial should come off ; or, if unable to get bail, his ab- sence from duty while in jail awaiting trial, being enforced by law, would be excusable absence and not prejudicial to his right to hold the office or draw his salary. The argument v'^vctio (td ithsurdum is in this case valuable. because it shows so forcibly the dangers to which the contrary view exposes the public peace and safety in their most vulnerable point. Nothing can be more important than a competent and faithful police force in our city, and nothing therefore is more necessary than that the heads of the department should be clothed with the most ample and sum- mary authority, upon conviction, to remove the members of the force who are guilty of any legal offense, or of acts dangerous to the morals or peace of the public. We have therefore no hesitation in saying that, both in reason and in law, the board of police have power, in the form prescribed by statute, to examine into all offenses committed by policemen, for the purpose of purifying or disciplining the force, witliout rcstrittion or limitation based upon the criminal character or other heiuuus.ncss of the crime., \ We think the proceedings of the board in this case should be af- firmed, and the writ dismissed, with costs. -^^. ''^^-^Y-kj^J^ " l>^^*^. HAGEliTY V. SHEDD. 217 HAGERTY v. SIIEDD. 1909. 75 .V. //. 393. Bingham, J. The first proceeding is a petition for a writ o{ certio- rari, direetiug the mayor and aldermen of tlie city of Nashua to certify the records of their proceedings in removing Hagerty from member- ship in the board of public worivs of the city, and asking that their order removing him from office be decreed null and void. Tlie second is a petition for a writ of quo warrant o to oust the defendant Crowley from membership in the board of public works, he having been appoint- ed by the mayor and aldermen of the city to fill the vacancy caused by the removal of Hagerty, and having qualified and entered upon the duties of the office. In the superior court the writ of ctrUorari was granted and the record and proceedings of the mayor and aldermen in removing Hagerty from office were quashed and adjudged void, and the defendants excepted. In the quo loarrcmto proceeding the trial judge found that the defendant was usurping the office from which Hagerty had been removed, and declined to allow the defendant to show the real cause upon which the mayor and aldermen acted in making the order of removal, and the defendant excepted. The various contentions of the parties in these cases depend largely upon the decision of the question of the capacity in which the mayor and aldermen acted in removing Hagerty from office. If their powers were administrative and not judicial, there would be no occasion for a writ of certiorari to correct the record or set aside the proceedings. State V. Richmond, 26 N. H. 232, 236. In such case the record might be amended to conform to the facts, on motion made for that purpose in any proceeding where it was brought in question. If, however, their powers were judicial, the mayor and aldermen having jurisdiction of the subject-matter upon which they acted, there may have been and probably was occasion for a writ of certiorari to set the proceedings aside, although they were summary, without preferment of charges, notice and hearing. (lihhsy. Manchester, 73 N. H. 265, 267. But if the fact that the proceedings were summary would render them subject to attack col- laterally, that would not constitute a valid objection to a direct proceed- ing to set them aside. "Indeed, it may be regarded as settled, that though a party has a right to treat the proceedings of an inferior tribunal as nullities in a collateral proceeding, he may, nevertheless, maintain a certiorari to set them aside." State v. Richmond, 26 N. H. 232, 237. It appears that Ilagerty's appointment was legal, and that his office carried a fixed salary and was for a term of three years. The statute under which the removal was made reads as follows : " The mayor,~'with the advice and consent of the majority of the full board of aldermen, may remove an}' member appointed as aforesaid for cause." Laws 1909, c. 283, §2. If the word "cause," as here used, means legd 218 HAGERTY V. SHEDD. cause and after notice and hearing, the statute confers judicial powers and means the same as though it read ' ' for cause, after notice and hearing." Gihhs v. Manchester, supra. In Shannon v. Portsmouth, 54 N. H. 183, the action was assumpsit to I'ecover compensation for the services of the plaintiff as a constable and police officer, from July 17 to December 15, 1870. He was duly appointed a constable and police officer of Portsmouth January 13, 1870, and qualified and served as such down to July 7 of that year. He was then notified to appear before the mayor and aldermen to answer charges verbally preferred against him, appeared, and was heard. Thereupon the mayor and aldermen voted that he be suspended from duty. From that time down to December 15, 1870, when he was rein- stated, he was not permitted to perform the duties of his office, although ready and willing at all times to do so. At the trial he offered to prove that there was no sufficient cause for his removal or suspension, but the evidence was excluded and a verdict found for the defendants, subject to exception. The provision of the charter of Portsmouth under which the action was taken reads as follows : " They [the mayor and alder- men] shall have full and exclusive power to appoint a city marshal and assistants, constables, and all other police officers; . . . and to re- move the same from office for sufficient cause, the mayor and aldermen each having a negative on the other, both in the appointment and re- moval of officers." Laws 1849, c. 83G, § 13. In construing the act it was held : (1) That the power to remove included the power to sus- pend ; (2) that the evidence offered for the purpose of showing that the cause for which the plaintiff was suspended was not a legal cause was properly excluded, for the reason that the suspension proceedings were judicial and could not be attacked collaterally ; that '"if the validity of the suspension is disputed, the plaintiff's remedy must be sought in a proceeding for that purpose, which will put the legality of the acts of the mayor and aldermen directly in issue." Although the reasoning in this decision may not be as explicit as could be desired, there can be no doubt as to its meaning, and that it was there decided that the power conferred on the ma^^or and aldermen by the charter, to remove and suspend police officers and constables for sufficient cause, was judicial. Such being the construction of a legis- lative act conferring power to remove for cause when chapter 283, Laws 1901, was enacted, it is to be presumed that the legislature, by making use of the same language or its equivalent in section 2, intended that it should be taken to confer like power. Green v. Bancroft, lb N. H. 204, 206. Moreover, it is generally held that statute s authorizing the re- moval of officers for cause confer judicial powers on the body that is to exercise them, and that the word " cause" means legal cause, an J^n-' templates a charge, notice, hearing, and judgment of removal upon cause. Ham v. Board of Police, 142 INIass. 90; State v. Hoglan, 6?" Ohio St. 532; Dullam y.' Wilson, 53 INIich. 392 ; People v. Therrien, 80 Mich. 187; Hallgrenv. Campell, 82 Mich. 255 ; State v. Common Conn- ATTORNEY GENERAL V. JENNINGS. 219 c«7, 53 Minn. 23S ; State v. St. Louis, 90 Mo. 19; State v. JJ'albjidg-;, 62 Mo. App. 162 ; S. C, 69 Mo. App. 657 ; McGully v. State, 102 Tenn. 509 ; State v. Smith, 35 Neb. 13 ; Benson v. People, 10 Col. App. 175 ; State V. Heivitt, 3 So. Dak. 187; /%.7.s- v. Mc Bride, 17 Ore. 640; 0.s-{70od V. iVe/5ow, L. R. 5 li. L. 636-1 Dill. Mun, Corp. (4th ed.), § 250 ; 2 Abb. Mun. Corp., § 636; Meeh. Pub. Off., § 454 ; 29 Cyc. 1409. The power of removal conferred upon the mayor and aldermen being judicial, the rejection of the offer to show that the cause for removing the plaintiff was a just and legal one, if erroneous, did not harm the defendants; for the proceedings were irregular and summary, without preferment of charges, notice, and hearmg, and would not be cured by a finding that the cause of removal was just and legal. The position of the defendant Crowley, who was made a party to the certiorari proceedings, that he was entitled as a matter of law to prove that he had qualified as a member of the board of public works and en- tered upon the performance of the duties of his office at the time the petition for a writ of certiorari was served upon him, and to have the question whether he was a usurper determined in that proceeding, can- not be sustained. "The superintending power of the court is limited to the correction of errors of law apparent upon the record, or to re- quiring the body to act if they refuse to entertain a contest." Sheelian v. Mayor and Aldermen, 14: N. H. 445, 446. INlatters outside the record as certified from the inferior tribunal cannot be considered. Sheelian v. Mayor and Aldermen, supra ; Richardso7i\. Smith, 59 N. H. 517, 519; Hayvxird \. Bath, 35 N. H. 514, 521; Landaff's Petition, 34 N. H. 163, 173; Osgood v. Nelson, L. R. 5 H. L. 636;"3 Abb. Mun. Corp., § 1126. \ 'v'oO "if Exceptions overruled. \ \- All concurred.* •P STATE EX REL. ATTORNEY GENERAL 1898. 57 Oh. St. 415. V. JENNINGS. MrNSHALL, J.^ It is averred b}^ the attorney-general in the petition that James Jennings and others specifically named, having been and 1 "Tlie proceeding therefore must be instituted upon specific charges, sufficient in their nature to warrant tlie removal, and then, unless admitted, be proven to be true. Defendant might also cross-examine tlie witnesses produced to support the charges, call others in his defense, and in these and other steps in the proceeding be repre- sented by counsel. In no other way could the person souglit to be removed have a due hearing or 'an opportunity to be heard,' and this condition must be complied with before the power of removal is exercised. {Req.x. Smith, 5 Q. B. 614; Osgood V. Nelson, 5 H. L. C, 6,36; People v. Fire Com'rs, 72 N. Y. 445). It follows, therefore, \>^^ii''^^ thut the proceeding is judicial in its character, and, as a necessary consequence, is ' \\/*'- subject to review by a writ of certiorari issued in the Supreme Court by the exercise ^■^^""^"f its superintending power over inferior tribunals."' Danforth, J., in People v. ^ ^Nichols. 79 N. Y. 582, 588. * Arguments omitted. — Ed. 220 ATTORNEY GENERAL V. JENNINGS. are now unlawfully usurping and holding the offices of " firemen" in the fire department of the city of Newark, this state, and asks that they be ousted therefrom and that Frank Alexander and others, speci- fically named, and entitled thereto, be inducted into the offices so usurped. The case has been submitted to the court on an agreed statement of factSj from which it appears that in 1895, the city council of Newark passed an ordinance organizing its fire department ; and by which it was provided that it should consist of ten firemen, one of whom should be elected as chief by the appointment of the mayor with the advice and consent of the council, and provided for their compensation. The persons whose induction is asked for were appointed under the pro- visions of this ordinance. The chief is not included in the number and all were simply appointed q,s, " firemen." On June 23, 1897, the council adopted an ardinance, repealing the former one, and providing for the employment of the " firemen " by the council, the chief, how- ever, being appointed as formerly. The section as to the firemen is as follows: "The said council shall employ as many assistant firemen, from time to time, as to them may seem necessary, Avho shall receive for their services not to exceed $50.00 per month." Afterwards the firemen appointed under the former ordinance were discharged by resolution of the council, and by another resolution the defendants were employed. The contention of the relator is that a fireman is an officer, and therefore, under section 1711, Revised Statutes, which requires all officers of the municipality, not elected by the people, to be appointed by the mayor with the advice and consent of the council, the defend- ants, not being so appointed, have no right to the office, should be ousted, and the former incumbents inducted as officers holding over until their successors are duly appointed and qualified. We do not adopt this view. There is no question but that the council had the power to repeal the former ordinance ; and this being so, and all the offices created b}' it, whatever they were, being thus abolished, the in- cumbents ceased to be officers, for there can be no incumbent without an office. State ex rel. Flin v. Auditor of State, 7 Ohio St. 333 ; Gano V. State ex rel., 10 Ohio St. 238 ; State ex rel. Hawkins, 44 Ohio St. 98. So that the real question in the_case is, whether a "fireman" is an officer; or, in this case, whether the firemen, for whose em[)li)yraent provision is made in the ordinance of 181'/ are officers. For that a position in the fire department of a city may have such duties attached to it as to constitute an office is not questioned. The chief of a fire department performs such duties as make him an officer. But the character of an office cannot be attached to a position by a name merely. Whfiiliei-it be an office or not, will depend upoa^ the nature and character of the duties attached to it h\ law. Many efforts have been made to define a public otlice ; and it is onl}' the incumbent of such an office whose rights can be challenged in a ATTORNEY GENEEAL V. JENNINGS. 221 proceecliug in quo warranto. But it is easier to conceive the general requirements of sucli an ofHce, than to express them with precision in a definition that shall be entirely faultless. It will be found, however, by consulting the cases and the authorities, that the most general dis- tinction of a public office is, that it embraces the performance by the incumbent of a public function delegated to him as a part of the sov- ereignty of the state. Thus in MeAchem's Offices and Officers, section 4, it is said: "The most important characteristic which distinguishes an office from an employment or contract, is that the creation and con- ferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public ; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers con- ferred are of this nature, the individual is not a public officer." So in High on Extraordinary Legal Remedies, section 625, it is said: "An office, such as to properly come within the legitimate scope of an in- formation in the nature of a quo icarranto, may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, and which is exercised for the benefit of the public." And in the case of DarJey v. The Queen, 12 CI. & Fin., 520, which is generally cited as a leading case, and where the question was whether the information would lie against the treasurer of the city of Dublin, Tindal, C. J., said : " After the consideration of all the cases and dicta on the subject, the result appears to be that this proceeding by information in the nature of a quo ivarranto will lie for usurping any office, whether created by charter alone, or by the crown with the consent of Parlia- ment, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others; for with respect to such an enii^loyment the court certainly will not interfere, and the information will not properly lie." The fact that a public employment is held at the will or pleasure of another, as a (k'i)ut y or servant, who holds at the will of his principal, is held, by the judges of the Supreme Court in an opinion delivered to the legislature of the state of Maine, to distinguish a mere employment from a public office, for in such cases uo part of ^ ' the state's sovereignty is delegated to such employes. 3 Greenleaf, J 481. The case of State ex rel. v. Brennan, 49 Ohio St. 33, is not at variance with these views. It is quite clear from what has been said that the " Stationery Store-keeper" under consideration in that case was a public officer. He was charged with the purchase and safe- keeping of the stationery required by the county. The judge, in de- livering the opinion, did not undertake to give an exhaustive definition of a public office; but did say that " it is safely within bounds to say that where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as denotes duration ami oon 222 ATTORNEY GENERAL V. JENNINGS. tinuance, wiili-mclependeiitpQwer to control the property of the public, ^-^ or with functions to be exercised in the supposed~Tuterest of the people, '\^^ the service to be compensated by a stated yearly salary, and the occu- pant having a designation or title, the position so created is a public office." Here, and throughout the opinion, prominence is given to the fact, that a public officer is one who exercises, in an independent capacity, a public function in the interest of the people, by virtue of law, which is only saying in another form, that he exercises a portion of the sovereignty of the people delegated to him by law. Applying what has been said to the case before us, and it clearly appears, as we think, that the firemen, other than the chief, employed by the council under the ordinance of June 23, 1897, are not public officers. They have no control of the fire department, nor of a ny of its^ property for any purpose, other than to use it in the extinguishment orS"res whenever the occasion requires. They are subject on all occa- sions and in whatever they do in the course of their employment, to the direction and control of the chief of the department. They receive for their services SoO.OO per month, and may be discharged at any time by the council. Hence Jhey_are simply persons in the employment of the fire department, and are not pul)lic officers of any kind. ^Ve are, however, cited to some cases where it has been said, as a reason for the non-liability of a city for the acts of its fire department, that firemen are officers. On examination it will be found that this is not the true reason. It assumes that a city is in no case liable for the acts of its officers. But this is not true in all cases. A city is liable for the wrongful or negligent acts of its sti-eet commissioner. It is true that, in this instance, it is made the duty of a city to keep its streets in repair and free from nuisances, whilst, in this state, it is not required to establish a fire department. But if it organizes a fire department, and levies a tax for its support, it would then seem to become its duty to see that it is properly organized, and that its agents carefully perform their duties in the one case as well as in the other. For it is a general principle, that, though a person may not be bound to do a particular thing, yet if he voluntarily undertake to do it, he is bound to use reasonable care and diligence in its performance, and is liable in damages to one injured from his failure to do so. There is no statutory duty in cities to construct sewers ; but if a city does, it becomes liable to a party injured by the negligence of its officers and agents in constructing and maintaining them. Dillon, Municipal Corporations, 4th ed., section 980. The levying of the tax and assuming to act in the premises imposes the duty. Hence the true reason for the exemption of a city from liability for the acts of its firemen is most probably not referable to the fact that they are officers but to the fact that it would be unwise to burthen the tax- payers of a city with damages resulting from the negligence of its agents in such cases; in other words, is simply a limitation suggested by the policy of the law on the maxim respondeat superior, in its appli- STATE V. ROSE. 223 cation to cities in such cases. In none of these cases was any effort made to determine what, in general, constitutes a public oflicer. In Dillon on Municipal Corporations, 4th ed., section 976, it is said : "■The exemption from liability in these and the like cases, is upon the ground that the service is performed by the corporation in obedience to an act of the legislature ; is one in which the corporation, as such, has no particular interest, and from whicli it derives no special benefit in its corporate capacity ; as the members of the fire department, although appointed and employed and paid by the city corporation, are not the agents and servants of the city, for whose conduct it is liable." So that the simple fact that a city is not liable for the acts of its fire department does not prove tliat all of its members are neces- ^ITTy public officers ; and may, when not properly employed, be oustecl from their employment by the state, as usurping on its author- it}^ in a proceeding in quo loarranto. We are therefore led to the con- clusion that none of the firemen proceeded against in this case can properly be termed public officers ; they are clothed with none of the requisites of such an officer ; are simply in the employment of the city as laborers, and the right to be so employed cannot be challenged by quo loarranto. The fact that their employment requires skill and ex- perience does not alter the case. Skill and experience do not consti- tute a public office ; they are simply requirements of suitableness for tlTe place ; and are no more attributes of a public office than of a private employment. Writ refused and petition dismissed. v.»i» y STATE V. ROSE. 1906. 74 Kan. 262. ^^ ^ Johnston, C. J.^ . . . Rose was originally elected mayor for the ,S^ term of two years ending April 12, 1907; for official misconduct he was, in April, 1906, removed from the office by a judgment which in terms wholly ousted and excluded him from the office and adjudged that ^>"'''^ he do not intrude into it during the term for which he was originally ^jt . elected. In open disregard of this judgment he is now in possession '^w<*of the office, and is assuming to exercise its functions and powers. *\Ar 224 STATE V. ROSE. ground that the court was without power to oust the defendant in a quo warranto proceeding, because other and adequate remedies existed for getting rid of unfaithful mayors. If this kind of an objection were available after judgment, it would not aid the defendant. He calls attention to the statutes making official misconduct a crime, one of the penalties of which is the forfeiture of the office, and also to the case of The State ex rel. v. Wilson^ 30 Kan. 661, 2 Pac. 828, which held that an officer could not be removed until he had been adjudged guilty of a criminal offense defined by a certain statute. That decision was based upon a statute which provided that forfeiture of office con- stituted a part of the penalty of the offense prescribed, and that it did not occur until a conviction was had. In that case the court recog- nized that the legislature had the power to provide for a forfeiture for misconduct, independent of any criminal prosecution, but held that it had not done so in the statute then under consideration. The statute under which the present action was brought authorizes not only crimi- nal proceedings but expressly provides for the removal of the offend- ing officer by a civil action. Gen. Stat. 1901, § 2462. This remedy, it will be observed, is not incidental to the criminal proceeding, but is an additional and independent one. The State ex rel. v. Foster, G2 Kan. 14, 3 Pac. 534. The violations of the law by the officer are not only public offenses, but in coniniittiiig tbt/ui he forfeits iiis rightto the office, and this forfeiture may be judicially declare d in a quo war- ranto proceeding. The judgment cannot be deemed to be invalid because of the resig- nation of Rose just before its rendition. The issues were joined, tes"-' timony had been taken, and the case was ripe for trial before the resignation, and the defendant could not then, by surrendering the office, divest the court of jurisdiction nor thwart the purposes of the proceeding. The public had an interest in the action, and the judgment to be rendered was of no less consequence to it than to the individual interests of the defendant. The judgment of ouster, as Mr. High has said, " is not at all dependent upon whether the respondent does or does not claim a right to exercise the office or franchise in con- troversy ; the question being whether he has done any act which necessarily implies a claim to its exercise. And if such act can be shown, judgment of ouster will be given, notwithstanding the usurpa- tion has ceased before the trial. -So when a statute gives the prevail- ing party in proceedings upon a quo loarranto information the right to costs absolutely, the court will give judgment of ouster, notwithstand- ing the information is entirely fruitless, the term of office having long since expired." (High, Extra. Leg. Rem., 3d ed., § 754.) In The State, etc.,y. McDaniel et al, 22 Ohio St. 254, 368, the Supreme Court of Ohio held that resignation did not constitute a defense to an infor- mation in quo warranto, and that it was not within the power of the defendant in cases of this character to render the proceedings ineffect- ual by successive resignations. (See, also, Attorney-general ex rel. STATE V. ROSE, 225 Robinson v. Johnson, 63 N. H. 622, (7 Atl. 381) ; Hunter v. Chandler, 45 Mo. 452, 455 ; The King v. Warlow, 2 M. & S. [Eng. K. B.] 75.) There remains the question, and in fact the only substantial question in the ease, whether there was power in the court to render an effectual judgment ousting the defendant from the office for the remainder of the term to which he had been chosen. By the terms of the judgment he was not only ousted for the moment but for the entire term. While the judgment expressly deprives the defendant of any right for the balance of the term to the office forfeited for his misconduct, it is not certain that it is any more effective than would have been a general judgment of ouster. If the unlawful acts pleaded and proved operated to forfeit the office for the term to which Rose was elected, a judgment in general terms declaring a forfeiture would probably take from him all that he had forfeited. What was involved in the proceeding, and of what was the defendant deprived by the ouster? It was the office of mayor, with its rights and privileges. The office is a trust conferred by public authority, for a public purpose, and for a definite time. Mr." Jtistfce Swayne said: "An office is a public station, or employment, conferred by the appointment of the government. The term embraces the ideas of tenure, duration, emolument, and duties." {United States v. Hartwell, 73 U. S. 385, 393, 18 L. Ed. 830 ) In the case of In the Matter of Oaths to be taken by Attorneys and Counselors, 20 Johns. (N. Y.) 491, an " office " was defined to be " an employment on behalf of the government, in any station or public trust, not merel}' transient, occasional or incidental." (Page 493.) In defining "public office'" the Court of Appeals of New York said : " It means a right to exercise generally, and in all proper cases, the functions of a public trust or employment, . . . and to hold the place and perform the duty /or the term and by the tenure prescribed by law." (Matter of Hathaway, 71 N. Y. 238, 244.) Th e office of mayor, which was conferred on the defendant at the general city election of 1905, was not a transient or occasional trust. Theofficei_Hith it§ rights and privileges, was given to him for a fixetH time. , It was a two-year trust ; an entire thing. It has been said that, " in legal idea, an office is an entity, and may exist in fact, though it be without an incumbent." (^People v. Stratton, 28 Cal. 382, 388.) The same court later said that in legal contemplation " each term of an office is an entity separate and distinct from all other terms of the same office." {Thurston v. Clark, 107 Cal. 285, 288, 40 Pac. 435). (See, also, Wardlow v. Mayor, etc.. City of New York, 19 N. Y. Supp. 6, 7 ; State of Iowa v. Welsh, 109 Iowa, 19, 79 N. W. 369.) The right to exercise the functions of the office of mayor and to enjoy its privileges Tor the two-year term was an entity conferred on the.de£ fendaiit, and it was that which was taken from him in the quo icarranto proceeding. The resignation or the removal of an officer during his term and tiie election or appointment of a successor do not divide the term nor create a new and distinct one. In such a case the successor is filling 1 226 STATE V. ROSE. out his predecessor's term ; and when the defendant reentered the office and undertook to exercise its duties he was simply serving a por- tion of the very term which the court had decided that he was unfit to hold. Since under the law he forfeited and was ousted from the right to occupy the office for the remainder of the term, no subsequent elec- tion or appointment could restore to him that which he was adjudged to have forfeited and lost. The electors of the city are as much bound .tf-^ |by the law and the judgment rendered in pursuance of the law as~tTieif ' .'representatives and officers, and the special election did not warrant ■ the defendant in ignoring or violating the judgment rendered under the law. In State of Iowa v. Welsh^ 109 Iowa, 19, 79 N. W. 369, the supreme court of Iowa went so far as to hold that an officer might be removed during the term for which he had been reelected for official misconduct or neglect of duty during his previous term. After remarking that the object of the proceeding of removal from office is to rid the com- munity of a corrupt, incapable or unworthy official, it was said : " The commission of any of the pi'ohibited acts the day before quite as particularly stamps him as an improper person to be entrusted with the performance of the duties of the particular office as though done the day after. The fact of guilt with respect to that office warrants the conclusion that he may no longer with safety be trusted in discharging his duties." (Page 23.) It is not necessary to go to that extent in this case, but certainly tlie misconduct of which the defendant was found guilty stamps him as one not entitled to be entrusted with the duties of the particular office forfeited during the remainder of the term. The case of State v. Jersey Citi/, 25 N. J. Law, 536, appears to hold a contrary view ; but a case more nearly in point, and which is in accord with our judgment, is State ex rel. v. DaH, bl Minn. 261, 59 N. W. 190. There a county treasurer was removed in a proper proceeding for the misap- ^.,v- propriation of public funds. Afterward the board of county commis- 5r ' M sioners, which had authority to fill the vacancy, elected him to fill out the term. The question arose whether there was power in the board \2/^' to reinvest him with the office in that manner. In deciding that there r( ''was not the Supreme Court of Minnesota said : " The removal proceedings cannot be nullified or reversed in that manner. Such removal proceedings are not merely for the purpose of ousting the peFson TioFding the office ; they include a charge that he has forfeited his qualification for the office for the remainder of the term. They are brought to declare a forfeiture of a civil right, his eligibility, his qualification to hold that office for tlie rest of that term. The pro- ceeding is not brought for his removal from a day or a week or a month of his term, but from the whole of the remainder of his term. . Nothing less is involved in the proceedings. Whether the voters at the polls could condone the offense by which he forfeited his office it is not necessarj^ here to decide. We are of the opinion that the county commissioners could not do so." (Page 2G3.) &;- >a^ STATE V. ROSE. 227 At the argument the question was mooted whether a county attorney who had been removed from office could be reappointed during the term. The statute authorizing removal would serve little purpose if the district judge could ap[)oint the unfaithful officer for the term for- feited and thus again invest him with the office and the opportunity to continue the violations of duty and of the law. Suppose a county clerk who was engaged in peculation with the connivance of the board of county commissioners was removed from office : the board, whitji has the power to fill the vacancy, might be willing to give the defaulter a new lease of power to continue his frauds against the public until the end of the term, but to allow it to be done would be trifling with jus- tice. No such purpose can reasonably be imputed to the legislature. Counsel for the defendant were inclined to concede that an officer removed for dereliction of duty could not be reappointed to fill the vacancy, but contended that a different rule obtains where provision is made for filling the vacancy by election. No room is seen for a dis- tinction between an a[)p!>intnu'ut and an election. The~protection dl the public is involved in the proceeding and judgment. Nothing in the statute suggests the electors, even, can condone the misfeasance, re- vive the forfeited right, or limit the effect or enforcement of a judgment of ouster. It is said that this proceeding involves the title to an office, which can only be questioned in a direct proceeding, and that a contempt proceeding cannot be transformed into a quo tvarranto action. The determination of the title to the office is not directly drawn in question in this proceeding. The real inquiry is, Has the defendant violated the judgment rendered? That involves the scope, and effect of the judgment and whether the defendant has intruded into the office and is doing that which the judgment forbids. The right to the office is only incidental to the main question : whether he is acting in disobedi- ence and contempt of the judgment of the court. It is conceivable that a person removed from office might, for some purposes, be re- garded as a de facto officer and yet be in contempt of a court wiiich prohibited him from occupying the office. An ousted officer might again and again, in some illegal way, gain possession of the office and such recognition in it as would give validity to his acts, but it would hardly be contended that the only w-ay by which the state could meet such contumacy and enforce the court's judgment would be to bring repeated quo ivarranto proceedings. The contention that to deprive the defendant of the right to hold the office for the remainder of the term is to take away a right from him without due process of law is not well founded. He is only made to suffer the i)enalty imposed for misconduct in office and violation of law. The oftlce is created by statute. The grounds for forfeiture are pre- scribed I)}' statute, and the statute provides the method l)y which the forfeiture is declared. The defendant has no vested right to the oftlce, and especially none which may not be forfeited and lost by misfeas- 228 BUCK V. EUREKA. auce. Having violated the statute, he must suffer the penalty which the statute prescribes. Having disobeyed and violated the judgment lawfully rendered and still in force, he is in contempt of this court, and is therefore adjudged to pay a fine of §1000 and the costs of this proceeding ; and, if the fine and costs be not paid within twenty days, he shall be committed to the jail of Shawnee couaty until they are paid. All the Justices concurring. I _ p^ \^^\^ BUCK V. EUREKA. ^^ ^- 1895. 109 Cal. 504. Action to recover compensati(iu for legal services rendered to the \ ■■ ^ city of Eureka. The defendant offered evidence to show that plaintiff \ hacl^een elected and qualified and had acted as city attorney for the period during which the services were rendered. This evidence was rejected, and judgment given for plaintiff, and defendant appealed.^ Henshaw, J. . . . There can be no question upon this evidence, assum- ing for the moment the existence of the ofHce, but that plaintiff was 0^ not only de facto city attorney, but that he was the regularly ap- pointed, qualified, and acting city attorney, a de jure officer charged with"ail the duties and entitled to all the emoluments of the office. There can be no better proof of the acceptance and holding of an office than the qualification of the officer and his drawing of the salary. Here, the plaintiff was appointed as city attorney, filed his bond as city attorney, took the oath of office as city attorney, and drew the fixed salary of city attorney, all duly and regularly as required by law and the ordinances of the city. Nor can plaintiff be heard to say (still assuming the existence of the office) that his contract with the city, or his understanding with the council, imposed upon him other or different or lesser duties than those which by law he was obliged to perform. He cannot, for ex- ample, be heard to say, as here he undertakes to do, in the face of the Aj-**"'^'"" ordinance fixing his compensation, that his understanding with the council was that they were to give him twenty-five dollars a month as a " retainer," a " stipend," and were to pay him " extra for all impor- tant duties, particularly business in the sujierior court or business in the higher courts." It was not within the power of the plaintiff, or of the council, to modify by convention the duties which by law were made to pertain to the office of cit}^ attorney. Pol. Code, sec. 4391. And the plaintiff, after having qualified, filed his bond, and taken his oath to perform the duties of the office, and drawn the salary pertain- ing thereto, will not be permitted to assert that the duties he swore to 1 This short statement of facts is substituted for that of the Court. — Ed. BUCK V. EUREKA. 229 perform were not those the performance of which the law made obliga- tory upon him. The contention that he was not city attorney cannot then be based upon any defect in the machinery of appointment, nor upon plaintiff's refusal with proper formalities to accept the appointment. It is claimed to rest upon the fact that the council, notwithstanding its repeated recognition of the existence of the office, never in fact created it, and that, therefore, it never existed. And the argument is that the council had power to create the office. Pol. Code, sec. 4408. That they were required, if they created it, to do so by ordinance. Pol. Code, sec. 4369. That the mode is the measure of their power, and that no ordinance was produced wherein and whereby the common council of the city of Eureka did ordain that the office of city attorney of the city of Eureka is hereby created. It is a general rule founded upon the dictates of public policy that the acts i)f a di^ fii<:iij ollieer are valid, and that those \Yho deal with suciriiii ollieer aie proteeted. The public is not required to know the terms and tenure upon which one openly holding and claiming the right to hold a public office maintains his position ; nor is any person who has dealt with such an officer to suffer loss if the tenure should prove illegal. So, likewise, it is the general rule upon grounds of plain justice and public policy that a de facto officer is forever estop- ped in civil or criminal actions from den^ang that he holds the office, and from escaping any of the responsibilities which attach to his in- cumbency. But the further rule is that the law as to de facto officers applies only where there is a da jure office ; the idea of a de fncto officer "being necessarily founded upon the conception of a dejure office. A de jure office is one having a legal existence, or, rather, one having an existence recognized by law. While it is certainly impossible to conceive of an officer, either de facto or dejure^ filling or attempting to fill a nonexisting office, there is a marked and well-recognized distinction between such nonexisting offices and those which, while having an irregular or merely potential, or in some instances even an illegal existence, yet do exist, and are recognized by the law. Of offices having an illegal existence — which are nevertheless rec- ognized — the government of a state in rebellion, and of a municipality acting as such without legal authority, are conspicuous examples. The governpient of a state in rebellion and all offices thereunder are absolutely illegal, yet, upon strong and plain grounds of public policy the government and offices are recognized by law, and the incumbents are treated as de facto officers. " In such a case the acts of a de facto executive, a de facto judiciary, and of a de facto legislature must be recognized as valid. But this is required by political necessity." Hildreth v. M'Intire, 1 J. J. Marsh. 207; 19 Am. Dec. 62. So a municipal corporation, acting under color of the law, may have no legal existence, and, consequently, no legal municipal offices, yet ■X^- ^A\ 230 BUCK V. EUREKA, ^ ^^^ a such a corporation has still an existence recognized by law, and upon plain grounds of public policy the question of its legal existence should be raised only by tlie state itself upon quo ivarranto. Cooley's Cons- titutional Limitations, 254; Town of Geneva \ . Cole, 61 111. 397; St. Louis V, Shields, 62 Mo. 247 ; State v. Carr, 5 N. H. 367. In some states indeed it is the established rule that officers filling oifices created by unconstitutional laws are nevertheless de facto officers until under direct proceedings the act has been declared unconstitu- tional. Thus, in Burt v. Wi7wna,etG., 7?. B. Co., 81 Minn. 472, it was held that the municipal court of Mankato was a de facto court, and that there can be a de facto office under an unconstitutional act creat- ing it until the act is declared void. In the case of Trumbo v. People, 15 111. 561, a school district had been illegally established ; the supreme- court of Illinois reviewing the case in a later opinion (Leach v. People, 122 111. 420) say : "So far as that alleged district was concerned there was no such legal district, and there was no dejure office of school direc- tor of that alleged district." Yet, upon a proceeding to collect a tax the tax was sustained, it being held that the school directors were officers de facto, and that in collateral proceedings the legality of the forma- tion of the district could not be inquired into. And in Common- icealth v. McComhs, 56 Pa. St. 436, it is said : " An act of the assembly, even if it be unconstitutional, is sufficient to give color of authority to the person acting under it." These decisions are in obvious conflict with the authority of the great leading cases of State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, and Nort07i v. Shelby Count'/, 118 U. S. 425, in the latter of which Field, J., explains that, while there are many cases deciding that a person holding an office under an unconstitutional law is a de facto officer, in every one it will be found that there was a legal office and that the unconstitutional law went only to the mode or manner of fill- ing it. And they are likewise in conflict with the rule in this state declared in People v. Toal, 85 Cal. 333. They are not here cited in commendation or approval, liul as instructive examples of the lengths to which those courts have felt compelled to go in carrying out what they conceived to be the plain mandate of public policy. When, however, we come to consider the doctrine as applied to offices having an irregular or potential existence (as distinguished from a noJaexTsting office, or one void in its creation), the cases are numerous and uniform in treating the incumbents of such offices as de facto officers. In Gihb V. Washivgton, 1 McAll. 430, dealing with the question of the creation of the office of appraiser, the court say: "If such an office has been even colorably created, then any irregularity which does not render the cre'ttion of the office void cannot be availed of.'* In Li re Ah Lee, 6 Saw. 410, the constitution of Oregon provided that when the population reached two hundred thousand the legislatu -e should district the state into designated circuits, and provided for the BUCK V. EUREKA. 231 election of judges to the circuit courts therein. The legislature passed the act before the state attained the requisite population, and before election the governor, without authority, appointed the judge whose act was under review. The court held that admitting the act to be unconstitutional and the appointment of the governor to be invalid, still the judge was a judge de facto, since the otiice in effect was created by the constitution. In Carleton v. People, 10 Mich. 250, the county officers were elected before the law creating the offices went into effect. They were held to be de facto officers. Tliough there were no legal offices in existence at the time, still the offices were created, and had a potential exist- ence. And the court in distinguishing between such offices and non- existent offices aptly says: "Where the law negatives the idea that there can be a legal incumbent, any one assuming to act assumes what any one is bound to know is not a legal office." In Yorty v. Paine, Q'2 \Yis. 154, the legislative act creating the town of Vwih River provided that the electors should meet upon the first Tuesday of the following April (April 4th), and elect town officers, but the act itself did not become a law until four days after- ward — April 8th. The potential existence of the town was recog- nized as sufficient for holding the election, and the officers were declared to be de facto, though elected without authority of law to offices then having no more than a potential existence. In Folder v. Bebee, 9 Mass. 231, 6 Am. Dec. 62, the legislature had created a new county and the offices thereof. The governor appointed officers before the law went into effect. It was held that their acts were binding as de facto officers, though the appointments themselves were afterward declared void by the same court when the question was presented upon direct attack. Commomvecdth v. Foider, 10 Mass. 291. Here too, therefore, the potential existence of the office was recognized. In Leach v. People, supra, an unconstitutional law regulating town- ship organizations provided for the number of members, mode of elec- tion, etc., of the board of supervisors, and under this law a board was selected whose acts were under consideration. It was held that not- withstanding the invalidity of the law, there was still "such a legal official body known to the law as the board of supervisors of Wayne county," and the acting board, though in number and in mode of selec- tion illegal, was upheld as a de facto body. The case of Smiili v. Lynch, 29 Ohio St. 261, is nearly a parallel case with the one at bar. The legislature of Ohio authorized villages and towns to establish boards of health and appoint members. The village of West Cleveland, by a void ordinance, attempted to do this. The members appointed qualified, and entered upon the discharge of their duties, and were accepted and regarded by the public as such members. The opinion of the court, delivered by Welch, C. J., is as follows: " The questions argued by counsel are : 1. Had the superior 232 BUCK V. EUREKA. . court jurisdiction? 2. Are the requirements of the statute as to the manner of passing the ordinance mandatory, or are they merely direc- tory? 3. If these requirements are mandatory, are the persons so acting to be regarded as a board of health de facto ? We are satisfied that the last named of these questions must be answered in the atfirma- tive. It is unnecessary, therefore, to consider the first and second questions. In other words, we think that, under the circumstances, the board is to be regarded as a board de facto. Whether it was a board de jure and whether the superior court had jurisdiction of the case became, therefore, immaterial questions. It is claimed by coun- sel for the plaintiff that this is not a case where an office has been filled and its duties performed by parties not legally appointed or qualified, but a case where there luas no office to be JilUxl. We do not so under- stand the law. The statute (60 Ohio Laws, 200) creates the office. It authorizes the council to ' establish ' the board, and to fill it by ap- pointment. True, until the council act in the premises it is a mere potentiality in their hands ; yet it is none the less an office., known to the law. Where the council assume to establish the board under the law and to appoint its members, there is no good reason why an irreg- ularity or illegality in the act of establishing the office any more than an irregularity or illegality in the appointment of the officers should be held as rendering the acts of the officers void, and themselves mere trespassers. The reasons — - the considerations of public policy — which exist in one case, exist equally in the other. It is enough that the_office_is one provided for by law, and that the partie_s have the color of aj5pointment, assumed to be and act as such officers, and that they are accepted and acknowledged by the public as such to the ex-^ clusiorTof all others. Such was the case here. There was both the color and iho. fact of office," The office under consideration was given a potential existejice by the acts of the logi.slature in the sections of the code above quoted. The plaintiff having accepted the appointment to it, and received tlie emol- uments of if,"l8 estopped from endeavoring to show to his own ad- vantage thai the council did not follow a prescribed mode in perfecting that potential existence. It was therefore error for the trial court to strike out "the admitted evidence. It does not seem to be disputed that if plaintiff's services in the case of Wing Hing v. City of Eureka, supra, were such as under his office he was in duty bound to perform, his contract with the council would be void as an attempt to increase his compensation. And indeed no question can arise upon this point. It is definitely settled bj' the lan- guage of the constitution in the first place (Const, art. XI, sec. 9), and in the second place, even in the absence of such a provision, such a contract would be declared void upon grounds of public policy. " It is a well-settled rule that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these BUCK V. EUREKA. 233 duties, even though the salary l)e a very inadequate remuneration for the services. . . . Whenever he considers the compensation inadequate he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging or which may be attached to an office to lay the foundation for extra compensation would introduce intolerable mischief. The rule, too, should be strictly enforced." Dillon on Municipal Corporations, 4th ed., sec. 233; Mechem on Public Officers, sees. 324-76. The contention is, however, that these services were not among those whose performance is enjoined on the city attorney, and herein plaintiff relies upon the case of Herrington v. Santa Clara County, 44 Cal. 496. As the law stood when that decision was rendered, the district at- torney was entitled to receive as compensation ten per cent of all money recovered by him for the county in any action. The county supervisors, ignoring the district attorney, authorized other attorneys to bring suit without the county for the recovery of a large sum of money. Recovery was had in the action and the district attorney sued to recover his percentage. The law made it the duty of the dis- trict attorney to prosecute all actions for the recovery of debts, etc., and to defend all suits brought against his county. Pol. Code, sec. 4256. The district attorney was not denying that it was his duty to prosecute this suit ; but to the contrary, insisted that it was his duty. The defendant county never claimed that it was not the district attorney's duty to prosecute the suit, but insisted that the duty was not exclusively imposed upon and the right not exclusively vested in him, but that the supervisors could, if they saw fit, engage other counsel to perform the service, as in many cases special counsel are employed. The language of the court in its opinion, therefore, while not obiter^ was not addressed to an}' contention raised by the parties. The de- cision of the court was by a bare majority. Chief Justice "Wallace being disqualified, and Justice Rhodes expressing no opinion. It was based upon two grounds ; the second, which is argued at length, hold- ing that as the district attorney had not collected the money, he was not entitled to his commission; and the first, which is not argued, being a declaration to the effect that it was " not a duty enjoined upon the district attorney by law to prosecute or defend civil actions in which the county is intererested which are pending in any other county than his own." This declaration is, however, supported by no reason- ing, by no analysis of the statute, and by no citation of authority. And it would be difficult so to support it. Says Dillon : " The stat- utes of the legislature and the ordinances of our municipal corpora- ions seldom prescribe with much detail and particularitj' the duties annexed to public offices ; and it requires but little ingenuity to run nice distinctions between what duties may and what may not be con- sidered strictly official ; and if these distinctions are much favored by 234 BUCK V. EUREKA. courts of justice, it may lead to great abuse." Dillon on Municipal Corporations, 4tli ed., sec. 233. When the law of tlie state says that the district attorney shall prose- cute and defend all suits, and the city attorney shall attend to '■'■all suits, matters, and things in which the city may be legally interested," it is a most forced and unwarranted construction to hold that in the one case it means only such suits as are commenced and finally deter- mined in the county courts, and in the other only such as are in like manner commenced and determined in the municipal courts. If the legislature meant that, it could and would have said so. But when it says '■^ all suits, matters, and things," the language will bear no other construction than that which is patent on its face. No rules of inter- petation are necessary to be considered, for no need or room for inter- pretation exists. Thus the court held in Myce v. City of Osage, 88 . Iowa, 558. The law made it the duty of the city attorney " to acTas" 11 attorney for the city in any suit or action brought by or against the city, and generally to attend to the interests of the city as its attorney." There, as here, plaintiff claimed extra compensation for services ren- dered under contract with the council for defendins; an action against the city in the district and supreme court ; and there, as here, urged that it was no part of his official duty to defend the suit. Says the court : "It seems to us that a mere reading of that section of the ordi- nance prescribing the duties of the city attorney is sufficient to show that under it he was required to act for the city in any case brought by or against it. . . . That the services rendered by plaintiff, and for which he seeks now to recover, were included within his duties as city attorney, is too j)lain to admit of argument." In Lancaster County v. Fulton, 128 Pa. St. 48, construing a similar statute, say the court: " The services for which the contract in ques- tion undertakes to provide are clearly within the sphere of the duties of the solicitor of Lancaster county." Russell V. Hallett, 23 Kan. 276, is not in conflict with the authori- ties upon this question. In that case the county attorney sued his county for compensation for services demanded of him toithout the duties of his office, as the court decided. He had been compelled to assist in a trial in a county other than his own. The law expressly limited his duty to attending before magistrates and judges in his county. Kansas Gen. Stats., sec. 137, p. 264. Rut it is unnecessary to multiply quotations upon this plain proposi- tion. We think it must be apparent that the construction given to the j statute in Herrington v. Santa Clara County, supra, cannot be sup- 1 ported, and should no longer be maintained ; and we believe that the \ evil results to the public service which must arise under that con- struction justify and demand a declaration from this court that it be no longer considered as authority. It is of the last importance that any and every public officer enter- \ BUCK V. EUREKA. 235 ing up on the discharge of his duties should know once and for all that, be the duties onerous or be Ihey easy, the compensation for tliem must . be that fixed J)y law, and that only. If they become too burdensome^; the law does not forbid the officer's resignation ; but it does emphati- cally say that he shall not, under any circumstances, by use of the power of his office, by contract express or implied, fair or unfair, or by aid even of legislative enactment, obtain increased compensation for their performance. " The successful effort to obtain office is not un- frequently followed by efforts to increase its emoluments, while the incessant changes which the progressive spirit of the times is introduc- ing effects almost every year changes in the character and addition to the amount of duty in almost every official station ; and to allow the changes and additions to lay the foundation of claims for extra ser- vices would soon introduce intolerable mischief." Evans v. City oj Trenton, 24 N. J. L. 764. ., >^ The services here performed by the plaintiff being such as it was his duty to perform as the city attorney of the city of Eureka, the con- tract was an attempt to increase his compensation, and is in violation of the constitution, against public policy, and therefore void. " A promise to pay them [officers] extra compensation is absolutely void under the statute of Ohio. Such promise could not be enforced at common law, being against sound policy and quasi extortion. Eng- lish judges have declared that such are novel in courts of justice, and that actions founded on such promises are scandalous and shameful (2 Burr, 934) ; and in the court of errors of New York they meet with no more favor {Hatch v. Mann, 15 Wend. 46)." Gilmore v. Leiois, 12 Ohio, 281; Vanclercook\. Williams^ 106 lud. 345 ; City of Decatur V. Vermillion, 11 111. 315; Biaiter v. Nolf, 71 Pa. St. 282. Nor can plaintiff recover under the contract, as by his second count i-^^o-vih he seeks to do, for such part of the services as was rendered after his term of office had expired. This is not the case of a city attorney carrying on litigation after his term of office had expired, with the knowledge and consent of the authorities, in which case an implied contract and promise to pay might arise after his tenure had termina- ted. Here plaintiff declares on, and seeks to recover under a contract against public policy, and wholly void. Such a contract wall not sup- port any action for recovery. As is said by the court in Lancaster County v. Fulton, 128 Pa. St 48: "Therc^ is no pretense that any new agreement was entered into, or the terms of the original in any manner changed, after the expira- tion of the term of office. Neither the subject of a new contract nor the modification of the original even appears to have been considered by the parties. The services of plaintiff below were no doubt efficient and valuable ; but, as far as they were rendered during his term of ,X)ffiee, his salary is all the compensation he can claim. As to services rendered after the expiration of his term of office, under and in pursu- ance of the original illegal and void contract, he cannot, under the pleadings and evidence in this case, recover." 236 COUGHLIN V. McELEOY. Ajcr>^ M^^ ^^ c^A A void contract cannot form the basis of a judicial proceeding. Santa Clara, etc., Lumber Co. v. Hayes, 76 Cal. 387, 9 Am. St. Rep. 211. There are, however, considerations in plaintiff's case which appeal with force to a court. In the first place the services rendered, as found by judge and jury, were of great value to defendant. In the second place they were rendered under an early interpretation gi vela to the statute which justified plaintiff in suing upon his contract. In now declaring what we believe to be the only tenable construction of the law relative to the duties of the office, it has followed as a neces- sary consequence that the contract, void as against public policy, will not support a cause of action. Plaintiff, however, if the facts will warrant it, should recover, not upon the original or void contract, but upon an implied one, for services rendered after the expiration of his )f,erm of office. The judgment and order are reversed, with directions to the trial court to permit plaintiff, if he shall be so advised, to amend his com- plaint, or file an amended complaint, seeking compensation upon quan- tum meriiit for services rendered after the expiration of his term of V^*"*^ h."^ "^ouGHLiN V. Mcelroy. 1902. 74 Conti. 397. Torrance, C. J. In the case of CongJdin v. McElroy, 72 Conn. 99, this court held, in efl'ect, that the plaintiff in the present case had been elected as tax collector of the city of Bridgeport for the term be- ginning April 10th, 1899, and judgment in his favor to that effect was rendered in the Superior Court. Pending that contest, McElroy was in possession of the office and performed the duties thereof from April 10th, 1899, to August 8th of the same year. During this period, upon the facts found, it is clear that the plaintiff was the tax collectorjfe i^Tlx^^ the defendant McElroy was theTax collector de farfo. While holding said office as de facto collector, McElroy received and still re- tains certain sums of money, which the plaintiff seeks to recover from the city, or from McElroy, as the fees and emoluments of said office belonging to him as collector dejure. The record presents for consideration two main questions : 1 . Is the de jure officer, upon the facts found, entitled to recover from the city the sums so received and retained by the de facto officer? 2. Is he entitled to recover them from the de facto officer ? Although questions of this kind have frequently been considered and passed upon elsewhere, they are, so far as we know, questions of first impression in this State ; and as we have no statute upon the sub- 1 On the position of an oflBcer appointed under an unconstitutional statute, com- pare Norlun V. Shelbij County, 118 U. S. 425, and Lang v. Bayoune, 74 N. J. L. 455. couGiiLiN V. Mcelroy. 237 ject, they are to be decided by the rules and principles of the common law appl. cable thereto. The decision of the first question involves the decision of a subordinate one, namely, whether upon the facts found the city can be considered as having legally paid to McElroy the fees retained by him as collector de facto. The plaintiff claims that under the city charter and ordinances it is the duty of the tax collector to pay over to the city the full amount collected, without deduction, and to present his claim for fees to the proper authorities ; and that McElroy having failed to comply with the provisions of the charter and ordinances in this respect, the money re- tained by him for fees cannot be regarded as having been paid to him by the city. Assuming, without deciding, that the plaintiff is right in his construction of the charter and ordinances of the city in regard to this matter, still we think that upon the facts found, and for the purposes of this case, the city must be regarded as having paid to McElroy the sums by him retained. The sums retained from time to time were the precise sums fixed by law as the fees oTTEelJolTector;' and for aught that appears of record they were d ue at the very time they were so retained, upon collections then turned over to the city; they were retained with the full consent __ I n iiBii ■■—II 111 T i r^ iTi I "^ ^ and allowance of the city, upon the understanding between it and Mc- Elroy that they were payments; and they were so retained and al- lowed iu the utmost good faith on the part of both, and in the full belief, on what then appeared to be reasonable grounds, that the payee was de jure., as be was de facto, the incumbent of said office. Pay- ments of this kind to de jure collectors had been made in this way by the city for twenty years, and with full knowledge of the facts no one had questioned their validity. Fees retained by de jure tax collectors, nnder circumstances quite similar to those in the case at bar, have by our courts, in favor of sureties and taxing communities, been treated and regarded as payments ; and we see no good reason in the present ca se wh y the fees retained by a de facto officer should not be regarded, iu favor of the city, as having been paid to him by it. We think tho evidence objected to was admissible to show such a payment, and that it was made in good faith ; and that the city, as against the plaintitf, must be regarded as having paid to the de facto collector, in good faith and before he was ousted, the sums retained by him. This being so, the ^lestiou is whether the city having in good faith paid to the de factojo^Q^ ^ before judgment of ouster, the fees of thei office^ is liable to the dejure officer for such fees. Upon this question the decisions of the courts of this country are in direct/jonllict. Quite a number of courts of high authority, among whicl^may be mentioned those of California, Maine, Tennessee, Wy- omiiyij, and Pennsylvania, hold that such a pajnnent does not protect the kommunity against the claims of the de jure officer. Dorsey v. Smyt\\, 28 Cal. 21; A7idreivs v. Portland, 79 Me. 484; Menrpliisv. Wooc\;)ard, 12 Heisk. (Tenn.) 499; Rasmussen v. Carbon County^ 8 Jo* ci. \. 238 couGHLiN V. Mcelroy. \\ l?-^ ),. Wyo. 277, 45 L. R. A. 295; Philadelphia v. i^mA;, 2 Atl. Rep. (Pa.) "^^■,505. On the other baud, _tbe^^ourtsjoLjLia9iQj'itl_ of the States that have had occasion to pass upon this question hold that such a pay- -^,,;v/inent does protect the community. Among the courts holding flTls ^' doctrine may be mentioned those of the States of Michigan, New- York, Missouri, Ohio, Kansas, Nebraska, and New Hampshire. ■■ Wayne County v. Benoit, 20 Mich. 176; Dolan v. Mayor ^ 68 N. Y. 274; McVeany X. Mayor, 80 id. 185; State v. Clark, 52 Mo. 508; Wesiberg v. Kansas, 64 id. 493 ; Steubenoille v. Culj), 38 Ohio St. 18, 23; Commissioners of Saline County v. Anderson, 20 Kan. 298; State V. Mibie, 36 Neb. 301, 19 L. R. A. 689; Shannon v. Portsmouth, 54 N. H. 183. It seems to us that the rule laid down in this last class of cases is in reason the better one. It rests upon the familiar and reasonable rule that persons having the right to do business with a fie firfo oOicer like the one in question, have the right to regard iiim as a valid olllcer, and the right to make payments to him without the risk of having to a pay a second time. This is the rule that protected the tax-payers in~ '^^*^« making payments to McElroy, and there appears to be no good rea- son why it should not be applied to payments made by the city to him in good faith and before judgment of ouster. Our conclusion is that the city is not liable to the plaintiff for the fees paid by it to the de facto collector. With regard to the plaintiffs fees due for collections made by him since he took possession of the office, he is of course entitled to them. It is admitted by the pleadings that he duly presented his claim and demanded pa3-ment from the city. It is true that the claim so pre- sented was for the fees for the entire year ; but the greater includes the less, and we think his claim and demand included the fees earned by and due to him since he took possession. The next question is whether the plaintiff is entitled to recover from the de facto officer the fees paid to such officer by the city; and the answer to this depends upon the answer to the further question, whether this can be done at common law and without the aid of a statute. The courts of this country that have had occasion to pass upon this last question have almost unanimously answered it in the affirmative. That, in cases like the present, the legal right to the o ffice carries with it the right to the salary and emoluments the reof , that the salary foL- lows file oIIIcl', and that the de frcto officer though he performs the ffiifies y^\ aJJ^ r^ of the office has no legal right to the emolumenfs fliereof, are propo'sitions so generally held by the courts as to make the citation of authorities in support of them almost superfluous. Nearly all, if not all, cases hereinbefore cited upon both views as to the liability of the ;City, hold that the de facto officer, fur fees and enioliunents of the of- fice received by him, is"Tiable at common law to the officer do jurp. So foi* a"s we aire aware the only well-considered case taking a contrary couGHLiN V. Mcelroy. 239 cases at least the judges who expressed views in harmony r view of the law is that of Stulir v. Ciirran, 44 N. J. L. 181, 186, and that was decided by a divided court standing seven to five. We think the able dissenting opinion of Chief Justice Beasley in that case shows conclusively that at common law, in a case like the present, the de jure officer is entitled to recover from the de facto officer. Another well-considered case directly in point in favor of this view is that of Kreitz v. Behrensmeyer, 149 111. 496, 24 L. R. A. 59. As be- fore intimated, this court has not heretofore had occasion to decide a question similar to the one now under consideration, but in two wrote the opinion of the court have with what we hold to be the law. Thus, Chief Justice Seymour, in Samis v. King, 40 Conn. 298, 310, said: ''The right to the salary of an office (as such, inde- pendent of actual and valuable services rendered) must on principle depend upon the legal possession of the office." It is a grave ques-\ ^ tion whether^merely.de_/ac/!oj3fficer, even when he actually performs I tTi^Thofe duties of the office, can enforce the payment of the salary. 1 TTTe^uthorities seem to be that he cannot. Chief Justice Butler, in \ State V. Carroll, 38 Conn. 449, 471, says that a de facto officer "can- not collect his fees, or claim any rights incident to his office, without showing himself to be an officer de jvre." That this law will at times operate harshly against the de facto of- , ficer, and that it will so operate in the case at bar, must be conceded ; and the seeming injustice of it is forcibly stated in the majority opinion of the New Jersey court before cited ; but the courts must en- force the law as it is and not the law as they think it ought to be. If the law requires to be changed that must be left to the legislature. Our conclusion is that upon the facts found in this case the plaintiff I is entitled to recover from McEloy the fees retained by the latter as I an officer de facto. The Superior Court is advised (1) to render judgment in favor of the plaintiff against the city of Bridgeport for the sum of $887.50 with interest from the date of demand, (2) to render judgment in favor of the plaintiff against McElroy for the sum of $4,775.02 with interest from the date of demand. . Costs in this court will be taxed in favor of the plaintiff. In this opinion the other judges concurred. U«^- \^ PW 240 SPAULDING V. LOWELL. :V ^ CHAPTEK IV. POWERS OF A MUNICIPAL CORPORATION. Section I. — General Principles. J^^^^^Cij/^ a' SPAULDING V. LOWELL. 1839. 23 Pick. 7L Shaw, C. J.^ The question, and the only one of considerable impor- ^^y^X^^ tance, in the present case, is, whether the plaintiff was liable for the taxr^^>^,^ which he was compelled to pay, and the amount of which he seeks to fjjir^rv recover back in the present action. The objection is, that it embraced i/><^^ an assessment to raise money for a market-house which the town o£ A Lowell, before its incorporation as a city, had voted to build. No '^^'**^ question irTthis case arises upon the relative rights and powers of ''^''*<''T-*-<3 towns and cities, or upon the change from one form of municipal gov- i^w U^ ernmeut to another, during the pendency of these proceedings. Lowell -WL, was established as a city in April, 1836. By the terms of the charter, they were made or rather continued a corporation for all purposes for which towns are incorporated, and they were thereby declared to be entitled to all the rights, immunities, powers and privileges, and sub- ject to all the duties and obligations before incumbent upon and apper- taining to said town. The question therefore resolves itself into the general one, whether cities and towns'in this Commonwealth, by virtue **. ^> ---^-- 1,1,- of their general powers, and without any special authority conferred on tTiehcfrespectively for that purpose, have authority in their corpo- rate~capacity to build a market-house, to appropriate money therefor, and assess the same, in common with other town charges, upon the inhabitants. The principle is now well settled, that corporations, being creatures by which several persons are associated together to act in concert for special purposes, can exercise no powers but those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the accomplishment of the purposes of 1 Statement of facts and arguments omitted. — Ed. SPAULDING V. LOWELL. 241 their association. This principle is fairly derived from the nature of corporations, and the mode in whicli they are organized, and in which their affairs must be conducted. , In aggregate corporations, as a gen-~7| eral rule, the act and will of a majority is deemed in law the act and [cyri^,- will of the whole, and therefore is to be carried into effect as the act 1 ' of the corporate body. The consequence is, that a minority must be / bound, not only without, but! against their consent. Such obligation | '^ . ^^ may extend to every onerous duty, to pay money to an unlimited 1 amount, to perform services, to surrender lands, and the like. It is obvious, therefore, that if this liability were to extend to unlimited and indefinite objects, the citizen, by being a member of a corporation, might be deprived of his most valuable personal rights and liberties. The security against this danger is in a steady adherence to the princi- ple stated, that corporations can only exercise their powers over their ■ respective members, foi- the accomplishment of limited and well defined j. , "TZ object s. And if this principle is important as a general rule of social 'f - right and of municipal law, it is of the highest importance in these / v^"^ States, where corporations have been extended and multiplied, so as I 1Wj-J.H^ to embrace almost every object of human concern. /The general prin- '^ ciple itself is fully recognized in several cases in this Commonwealth. 1 Bangs v. Snoiv, 1 ^Mass. R. 181 ; Stetson v. Kempton, 13 Mass. R. 272 ; ' Willard v. Newhunjport, 12 Pick. 227. But although the rule as thus stated, and thus important and salu- tary, is clear and unquestionable, much difficulty arises in the appli- cation of it to such a class of corporations as cities and towns, on account of the indefinite and miscellaneous purposes for which they are constituted. This difficulty is stated and illustrated in the case last above cited. Wlilard v. Neivbui-yport, 12 Pick. 227. The general authorit}' of towns to raise money by assessment of taxes on the inhabitants, was given by St. 1785, e. 75, § 7, " for the settlement, maintenance and support of the ministry, schools, the poor, , f xj^JLy and other necessary charges arising within the same town." The authority is not much more definitely expressed in the Revised w_ Statutes. Revised Stat. c. 15, § 12. " Towns shall have power to grant and vote such sums of money a3 they shall judge necessary, for the following purposes, For the support of town schools : For the support and maintenance of the poor : For burial grounds ; and ^ For all otlier_necessary charges arising within the same town." f^-o-^-^"-^ By a comparison of the two provisions it will appear that one object ^^^^.^.l^ of town charges is introduced into the Revised Statutes that was not ' expressed in the old one, that of burial grounds. This subject was (^, one of those miscellaneous cases, mentioned in the case last cited, over which towns exercised an authority in fact though none was given by statute. It is since conferred by this provision of the Revised Statutes. 2i2 SPAULDIKG V. LOWELL, But the same remark may be applied to this, as to the old statute, f,yr^. I that it is manifestlj not intended as an enumeration of all the particu- 1 lar objects, because some of the most obvious subjects of town charge ' are omitted, such as highways and bridges, pounds, magazines and many others. This is also manifest from the sweeping clause "other necessary charges," which clearly implies that many things, not enu- merated, are intended to be included. But the Court are not at all prepared to say, that under this term, "other necessary charges," coupled with the previous clause, " such sums as they shall judge nec- essary," it was intended to authorize towns to raise and appropriate money for general objects, or that it was intended to constitute a new, substantive power of taxation . It would be letting in all the mischiefs arising from an indefinite and arbitrary power of a majority to bind a minority to an unlimited extent. Beaty v. Lessee of Knoxder^ 4 Peters, 152, On the contrary, we think it referred to other provisions of law, and well established usage, to ascertain what the objects of town <^j^r ..Vcharge are,'ahd to provide that towns might raise money for any pur- ^\ poses thus determined. But to bring any particular subject within this' "^^^ \ description of necessary town charges, it must appear to be money 'S^^ necessary to the execution of some corporate power, the enjoyment of some corporate right, or the performance of some corporate duty, as established by law or by long usage. For instance, towns are author- ized and required to hold"lneetings^ as incidental thereunto they may -u-*. Vr ' ^^^^' purchase or build a town-house. They may prosecute and defend ^ft^^ C>v'.» suits ; as incident to which, they may appropriate money to retain **^ """^counsel, to pay costs, and to meet and satisfy judgments which may be recovered against them. In this very case, should the plaintiff recover, the defendants must have authority, in their corporate capacity, ^^ v"- to raise money to satisfy the judgment, of which the plaintiff, if he 'Xm^^y^y continues an inhabitant, will be liable by way of assessment to pay his part. ,^^,,.. The earlier statutes of the province and colony concur with those "^/o under the present constitution, in vesting towns with the power to ■V^'' . agree upon and make rules, orders and by-laws for managing and ordering the prudential affairs of the town. St. 178.5, c. 75, § 7; Re- vised Stat. c. 15, § 13. The ambiguity lies in the indefinite term ^'■pru- dential affairs" and the difliculty arises in each case, in settling what J. y, . concerns fall within it. One thing is very clear, that it cannot include ^v^^^'^^i^^those objects of social concern which are expressly vested in other L^t*^^'^ bodies, as was settled in the case of Stetson v. Kempton. In that case >i jit was held, that the defense of the country against a foreign enemy, being placed under the jurisdiction of the general and state govern- ments, could not be deemed an object for which towns can raise and appropriate money. In the case of Willard v. Neiohxiryport, above cited, some attempt was made to describe what is understood to be " prudential concerns," by stating that it embraces those subjects affecting the accommodation 0^ SPAULDING V. LOWELL. 243 and convenience of the inhabitants, not otherwise specifically provided for, win ch have been placed undei- the jimsdiction of towns by statute In " ' " It may be suggested that referring to usage as a source of this power, is still leaving subjects open to doubt. It does so ; but as there are some subjects which have long been regarded as within the authority of towns, not made so by statute, and as such powers have never been questioned, there is no authority whence they can be derived but usage. Indeed a recu rrence to the history of the formation of towns,^ will show that most of the powers originated in usage, founded on the convenience and necessities of tlio iiihal)ilauts, and were afterwards recognized and confirmed by statute. Townships were originally local divisions of the territory', made with a view to a settlement and disposition of the property in the soil. But the inhab- itants of each acted together on many subjects of common interest to themselves, and those especially, in the first instance, which affected the partition and appropriation of the land amongst the proprietors, who were strictly tenants in common. But from convenience and, necessity they adopted many other regulations affecting their mutual interests as settlers- and inhabitants. After these regulations had con- tinued for some years, they were recognized and confirmed by statute. The first act which seems to have been passed was in 1670, forty years after the first settlement. And the provincial act of 1692 con- tains a preamble reciting, that whereas it has been a continued practice and custom in the several towns within this province, annually to choose selectmen or townsmen, for the ordering and managing of the prudential affairs, &c. , and then goes on to provide for the choice of selectmen, overseers, constables, surveyors of highways, tithingmen, fence-viewers, clerks of the marke t, sealers of leather, and other ordi- nary town officers. The same statute gives to towns the authority to make orders and by-laws " for managing and ordering their prudential affairs of such town, as they shall judge most conducing to the peace, welfare and good order thereof." From this and various other legal provisions, we think it will be found that towns were not originally' i ncorpo rated with specific and enumerated powers; But tljiat the inhab- itants and settlers of each township, as organized bodies, adopted regulations for their common convenience, and when they were, incof- porato:!, or rather recognized by general laws as established corporor tions, the powei's which they had thus been used and accustomed to exercise were referred to, and confirmed, under the very broad and comprehensive term, "prudential concerns." So in the officers to be elected, after enumerating many specifically, the statute of 1692 adds, " other ordinary town officers." Care seems to be taken lest in a spe- cific enumeration, some might be omitted who, according to custom, ought to be chosen. And the same solicitude is manifested through all the succeeding enactments, down to the Revised Statutes, which, after enumerating many officers to be elected, closes with the addition of "all other usual town officers." 1 1^.^ O^jeAAA-n 4.xy>-^ -aTVi* 244 SPAULDING V, LOWELL. '•/^In lookins; to usage and custom as the means of ascertaining what r: A ) subject of common interest is embraced under the term " prudentials,"' I the Court are of opinion that the erecting of a market-place, in the large towns and populous villages, is embraced. The circumstance that special acts of legislation have been occasionally passed respect- ing the building of market-houses, can have no considerable influence. Even if they embraced a power, in terms, to erect a market-house, it might be accounted for, by considering it as done e.x majori cauteld; but in general it will be found, that these acts embraced other and additional powers, which could not be used under the general authority to erect a market-house, such as the taking of land for the public use, as in the case of the extension of Faneuil Hall Market, or the like. St. 1823, c. 147. In the case of Stetson v. Kempton, which seems to have been well considered, and has ever since been regarded as a leading case, in considering what limitation is to be put on the power to raise money for "other necessary charges," it is said, "the erection of public buildings for the accommodation of the inhabitants, such as town-houses to assemble in, and market-houses for the sale of provis- ions, may also be a proper town chai-ge, and may come within tJie fair meaning of the term ?iecessary." And though it was not the question directly before the Court, yet being put by way of instance as itself unquestionable, to illustrate the general proposition, and to distinguish what were and what were not objects of town charge, it is very strong evidence of the usage. The early statutes on the subject of holding markets, and establishing market days, can have but little bearing on the present question. They related to holding open markets, at par- ticular times and places, which was regarded as a franchise at common law. We think the present question stands upon another and different footing, that of long established and well settled usage. And in con- sidering this subject of usage, it is proper to add, that it is not a cas- ual or occasional exercise of a power, by one or a few towns, which will constitute such a usage ; but it jmust be a usage reasonable in '-^ f) itself, general amongst all towns of like situation as to settlement and w***'^' population, and of long continuance. —-"•"■ , /.^yJcCwvAM'' On the whole, the Court are of opinion that the town and city of ) Lowell had authority to raise and appropriate money for building a market-house, and to assess the same upon the inhabitants. It was further contended, in the present case, that even if the town had authority to assess money for building a market-house, yet that it would not justify the present tax, because a part of the building was appropriated to other objects. If this had been a colorable act, under the pretence of exercising a legal power, looking to other and distinct objects beyond the scope of the principal one, it might be treated as the abuse of power, and a nullity. But we perceive no evidence to ^^• ^ V justify such a couclusioft, in the present ease. The building of a market-house was the principal and leading object, and everything else seems to have been incidental and subordinate. We cannot therefore ^ ■ •LA3>^vi c;;l- ( * ^ --: 1 - S^^^^^Un^j.^ -z-l^i^^Y t>"^ wJ^ HOOD V. LYNN. 245 A say that it was such an excess of authority as to invalidate the act8,\L*£3L..Uv. which they might rightfully do. As to the size and other circumstances of the building, if the accomplishment of the object was within the scope of the corporate powers of the town, the corporation itself was '^^ \ ,the proper judge of the fitness of the building for its objects, and it is not competent in this suit to inquire whether it was a larger and more expensive building than the exigencies of the city required. Plaintiff nonsuit. ^- y. ?^vi^ \.^' f^ HOOD V. LYNN. J» _^ f '-i 1861. 1 Alle7i {Mass.), 103. 'S X"^ Petition under St. 1847, c. 37, filed June 30, 1857, by eleven voters ^■'^ V^and tax -payers of Lynn, for an injunction to restrain the respondents ^^y^ from paying money from the city treasury under the following vote passed on the 29th of June by the board of aldermen and common ^ .^^^ > council of that city : " Ordered, that his honor the mayor and aldermen Holmes and Stacey, with such as the council see fit to join, be a joint special com- j^ ifaittee whose duty it shall be to procure a display of fireworks on the] night of the Fourth of July next; and that the sum of five hundred "dollars, to be taken from the contingent fund, be and the same is here-j by appropriated for the purpose of defraying the expenses thereof." The citation was served on the respondents on the 1st of July, 1857; and it was agreed that afterwards the sum of S312.50 was paid for ex- penses incurred under said vote, by the city treasurer on the warrant of the mayor, and that the sum of $187.50 remains due therefor. ir. G. Choate,, for the petitioners. D. Peabody^ for the respondents. BiGELOw, C. J. The nature and extent of the power of towns and cities to appropriate money and incur expenses to be paid out of the funds raised by taxation have often passed under the judication of this court. It is therefore unnecessary to discuss the subject at length in the present case. The general pi-inciple is well settled that muni- cipal corporations, like other corporations aggregate, can exercise no powers other than.' those which are conferred on them by the act by which they are created, o^'feuch as are necessarily incident to the exer- cise of their corporate rights, the performance of their corporate duties, and the accomplishment of the purposes for which they are constitu ted. The observance of this rule, and the steady and firm en- forcement of it by courts of justice, are of the highest importance. In no other way can the majority be prevented from an oppressive and reckless use of power, or the minority protected against liability \')-^ Vr^- \\\^.A-y\ , .\ 2-^-^U^Y P^ 'W»^>^ Y"^^- 246 HOOD V. LYNN. for an illegal and unauthorized expenditure of the public money. It was with a view to furnish a prompt and effective remedy to restrain cities and towns from raising, borrowing, or expending money for pur- poses not authorized by law, and to enable a minority to guard their rio^hts and interests, when such unlawful acts were threatened or in contemplation, that the statute of 1847, c. 37, (re-enacted in Gen. Sts. c. 18 § 79,) was passed ; by which this court has power to interfere summarily on the petition of ten taxable inhabitants, and restrain by injunction, according to the practice of courts of equity, any violation or abuse by a town or city of its legal right and power to pledge its credit or to raise and expend money. It is under this statute that the petitioners in the present case ask for the interference of the court. It is not pretended by the respondents that the purpose for which they appropriated the money of the city, by the vote set out in the bill, comes within any of the objects enumerated in the statutes for which towns and cities have power to grant and vote money. It is suggested, however, that it may come within the general clause by which they are authorized to raise money for "all other necessary charges." But this language has alread}' received a judicial interpre- tation, and, under the broadest and most liberal construction which has ever been put upon it, we cannot see how it can be made to em- brace an expenditure like that contemplated in the vote passed by the respondents. The appropriation is neither necessary to the exercise of any power expressly granted to the city ; nor is it incidental to any right or authority, which, though not expressly granted, has its origin in well settled usage, and is founded upon the necessities, convenience, or even the comfort of the inhabitants. This is the extreme limit of the power of towns and cities to grant money, as settled by repeated adjudications of this court. Stetson v. £^e7npfon, 13 Mass. 272 ; Par- so?2s V. Goshen, 11 Pick. 396; WiUarcl v. Neiohuryport, 12 Pick. 227; Allen V. Taunton^ 19 Pick. 485; Spaulding v. Loivell, 23 Pick. 71; Anthony v. Adams^ 1 Met. 284. Viewed in the most favorable light for the respondents, their vote authorized an expenditure of public money to celebrate the anniversary of a great event of national and historical interest, in a manner which might serve to amuse the inhab- itants, and perhaps excite in their minds a spirit of patriotism and a love of liberty. But these objects, however laudable, do not come within the range of municipal powers and duties. If money in the treasury of a city can be expended to commemorate one event of in- terest and importance in the history of the country, so it may be to celebrate the anniversary of any and every other. But this court has already decided that a town cannot lawfully appropriate money to commemorate the surrender of Cornwallis, the last great act in the series of events which marked the Revolution and consummated the independence of tlie country. Tash v. Adams, 10 Cush. 252. Nor would there be any limit to the amount of money which might 0-- PHELPS V. HAWLEY. 247 be expended for such purpose, nor to the mode in which the expendi- ture might be made, except that which might be prescribed by the will or caprice of the majority. If fir eworks and illuminations can be permitted, so maj dinners, balls and fetes of every description. It isi obvious that such a power would open a door for great abuses, and ex- penditures of the most wasteful character. It was urged by the counsel for the respondents that the appropria- tion in the present case might be justified and sustained on the ground of usage. ' But the answer to the argument is twofold. In the first place, there is no evidence in the case of the existence of any such usage or custom in the towns or cities of this commonwealth. It is not even alleged in the answer of the respondents. Certainly the court cannot take judicial cognizance of it. But even if such usage(""~xll. was alleged and proved, it would not alter the case. An unlawful ex- penditure of the money of a town cannot be rendered valid by usage, however long continued. Abuses of power and violations of right de- rive no sanction from time or custom. A casual or occasional exer- cise of a power by one or a few towns will not constitute a usage. It y must not only be general, reasonable and of long continuance, but, ijXA,J.aws of 1837, §9. 1 Was this permissive or mandatory to the county? ^ .TjL,' There are reasons why it should be mandatory. ^'"^ >4J' ^^ appears that the stream to be crossed is a river, and the expense m:**"*^ of the construction and repair of a bridge would be very onerous to the '. 1 ^^C/sL/^ two opposite towns; more so then, probably, than now. 2^^^^,_^juJuiv-^ 1 The corporation, chartered in 1837, that first constructed the bridge, ^^. with the right to take toll for thirty years if kept in repair, etc., aban- A , {^ya,.' doned the bridge when it was swept off some fifteen yeai's after the jji^ ■^ charter. It could not be made profitable. ^r""^^"^^ I'l^Q counj;y of Livingston then rebu ilt i^. The course of legislation as to bridges over that river shows the leg- islative sense, that they should be substantially a county charge ; three or four having been built by the county under statute authority. Again, if this act be merely permissive to the county it confers little if any substantial additional power. The county then had authority to build it or to aid any town or towns in its construction, in a limited way, in its discretion. 1 R. S. 524, § 119, citing the statute 2 R. L. 281, § 33. Again, the towns, on opposite sides of a stream, at that time had no regulation by statute, no organization to be put in motion to accom- ^ Statement of facts and arguments omitted. — Ed. AUROEA WATER CO. V. AUKORA. 249 plish the construction of a bridge. The first act passed upon that subject was in 1841. Laws of 1841, p. 207. Under that act bridges could be built though towns were reluctant to do their duty. See Hill v. Board of Supervisors of Livingston County, 12 N. Y. 52. There would thus seem to have been a propriety in 1837 that the county siiould have maintained this bridge. But the act contains apt and legal language to require the county to do it. It says it shall ' ' become a public bridge, and may be maintained " by the county. This is a direction to a public body (not an option to a private per- son or corporation), in the execution whereof the inhabitants of that county have a pecuniary interest. In fact, the public generally may be said to have such an interest. Where persons or the public have_ _an interest in having the act done by a. public body, "may," in such a statute, means '• must.'' Newbwrgli Turn. Co. v. Miller, 5 J. C. 113 ; Malcolm v. Rogers, 5 Cow. 188. This rule must prevail where there is nothing that would evince a contrary intention in the statute or in the surrounding facts. This disposes of the question. It is conceded, as it well may be, that if the county by this act was required to maintain this bridge, no act of the commissioners could bind the town, as they then had no authority over the bridge. Its maintenance was specially provided for. Whether the commissioners can involve the towns in debt without limit for bridges it is not necessary to decide. The judgment should be affirmed. All concur. . ,. , ^''^^ -Vt- -\ ^ - Judgment affirmed. AURORA WATER CO. v. AURORA. 1895. 129 Mo. 540. Sherwood, J.^ Action by plaintiff to recover of defendant city, a city of the fourth class, hydrant rentals amounting in the aggregate to $3,809.90. Plaintiff's claim is that this amount was earned in conse- quence and by the performance of a contract made between plaintiff and defendant consisting of certain ordinances passed by defendant, adopted by a nearly unanimous vote of the tax-payers and accepted by plaintiff or its assignor. Defendant denied the validity of the contract on constitutional and other grounds, and plaintiff replied. Copies of the ordinances involved will accompany this opinion. 1 Statement of facts, argument, and all the opinion not relating to the power to call a special meeting omitted. — Ed. 250 AURORA WATER CO. V. AURORA. Defendant paid the first installment of rentals for July, 1892, but after the ruling announced in the Columbia case, refused to make any more pa3'ments. Inasmuch as the constitutional questions put in issue by the jsleadings herein have been in the second opinion delivered in Lamar Water, etc., Co. v. City of Lamar, 128 Mo. 188, determined against defendant's contention by court in banc, it will not be necessary to discuss them ; we proceed, therefore, to the consideration of such questions which the record contains as are open to review. I. a. And first as to the passage on February 23, 1891, of ordinance 35, which ordinance constitutes the ground work of plaintiff's demand. Various objections are urged against the validity of this ordinance. It is g^^^_^,^„-^^-<.t insisted that it is invalid because passed at an unauthorized meeting of the board, in that it was not a regular meeting, and that the statutes, ,•,.>. V ^ while giving to cities of the first, second, and possibly the third, class ^ power to call special meetings, yet that no such power is conferred by , I statute on cities of the fourth class. It may be granted that no such ' ^ o.^A^A>v? power is exjyressly conferred, yet it does not thence follow that such power is nonexistent. Of necessity, cities possess many powers which are not enumerated in the gFant of power, and yel, pass as tlie^meire" incidents and auxiliaries of those expressly granted. 'ix Cities of the fourth class, to which defendant city belongs, have ' ^^v-^^^J^^ conferred upon them a great variety of powers by section 1589, Re- '-^^j^---''''''^ vised Statutes, 1889, among them the power "... to pass such other Y<^C^^ ordinances for the regulation and police of said city, and commons thereto appertaining, as they shall deem necessary ; and to_£ass such \A ordinances, not inconsistent with this article, as may be expedient in ' maintaining the peace and good government, health and welfai'e of the city, its trade, commerce and manufactories." As instances of such implied powers are those when a power to pass ordinances gives to the corporation, without any express grant of power, the incidental right to enforce them by reasonable pecuniary penalties. In England, as it is regarded as the duty and purpose of corporalions to preserve the health and safety of the inhabitants of cities, it has always been held that reasonable regulations in regard to such objects fell within the incidental authority of corporations to ordain. Under power conferred to pass ordinances to promote the general ^ j welfare and preserve the peace, a city may fix by ordinance the time or places of holding public markets, and make such other regulations V > ■>^ J- concerning them as may conduce to the public interest. i\Q^a-r£'^^^ Under a general welfare clause in relation to the maintenance of the .^^^/.^^ ' good order of the city, it has been ruled that a city may " 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, and for the performance of the general duties required by law of municipal corporations." Under a general power to pass " any other by-laws for the well- 1^ ^' AURORA WATER CO. V. AURORA. 251 being of the city," such corporation may pass an ordinance prohibiting i .' saloons, etc., to be kept open after 10 o'clock at nigld. 1 Dillon, | Municipal Corporations [4 ed.], sees. 338, 369, 384, 393, 396, 400, j and cases cited. These authorities proceed on the evident theory of the familiar maxim that a grant of power takes with it all the necessary incidents to make that grant effectual. State ex rel. v. Walbridge^ 119 Mo. 383, 24 8. AV. Rep. loc. cit. 460, and cases cited. And, as before stated, there are many implied powers which attach '*^^wax themselves to municipal corporations, i^Jx^l&j^ ipo wers^ which belong to jF^ them because they are municipal corporations., just as certain powers are inherent in courts because of the very nature and attributes of their organization. Thus, at common law, it is an established principle in England, that a municipal corporation may, by virtue of its inherent or incidental power, pass a by-law imposing a pecuniary penalty upon such as refuse without legal excuse an ofice to which they have been duly elected. And the eminent jurist and author heretofore cited indicates that even in this country, under the usual general welfare ^ clause or under their incidental j^owers, municipal corporations could, by ordinance, impose a reasonable fine because of a similar refusal. 1 Dillon, Municipal Corporations [4 ed.], section 223. So, also, it is one of the common law incidents of all corporations to Vj^v-^-. remove a corporate ofHcer from his office for reasonable and just cause, r. \^.eytmTt~ttKnl• jurisdiclion, which could not be considered as' extending to the inhabitants of Oxford who were not scholars. Regard is to be had to the nature of the incorporation ; if it is a banking incor- I \^ -^^^:V^ poration, for example, their by-laws must be confined to the proper p A-"^ )n has a local I ^'' - mode of conducting their affairs. "Where the corporatioi jurisdiction, their by-laws affect all who come within it ; for exumplep ..-V'*-'''**'''^ the by-law of the city of London, that no citizen, freeman or stranger, should expose any broad-cloth to sale within the city before it should; be brought to Blackwell Hall to be examined whether it were saleable *_V *-^ or not, was held binding upon strangers as well as citizens. 5 Co. 63. ^><>-aa So in Pierce v. Bartrtini, Cowp. 269, a by-law of the mayor and common council of the city of Exeter, that no person should slaughter beasts or keep swine within the walls of the citv, was held good against tlie defendant, who was not free of the citv, but only residing there. He was considered as an inhaliitant />/'o hac vice. So where the cor-ut*^-- ' " poration have jurisdiction over all of the same trade or profession! '■•'■'*^ Vt within certain limits, as the College of Physicians have for seven miles! C*-oiAjji^ rouiid^London ; whose by-laws regulating the practice of physic are \ brndiiig upon all within those limits. The by-laws which are made by corporations having a local jurisdic- tion, are to be observed and obeyed by all who come witliin it^, in the same manner as aliens and strangers within the commonwealth are bound to know and obey the laws of the land, notwithstanding they may not know the language in which they are written. They receive the benefits arising from the munici[)al arrangements, and are presumed!^ ' ^ ASyx to assent to them, upon the same principle which requires from them a\ " ' ' " temporary allegiance to the state for the protection it affords to them during their residence. But it is contended that this by-law is void as it is in restraint ofl^}^-^ on of trndc is in ^.^-^-^ '' • trade, and operates as a monopoly. Every regulatioi some sense a restraint upon it; it is some clog or impediment, but it does not iherefore follow that it is to be vacated. If tlie regulation is . unreasonable, it is void ; if necessary for the good government of the ^ ^^ A societ}', it is good. ^' The case cited by the counsel for the defendant from 1 Rol. Abr. 364, was of the former character. The mayor and commonalty of London made a by-law, that no carman within the city should go with his cart, without license from the wardens of such an hospital, under a certain penalty for each offence ; and it was held to be a void by-law, because it was in restraint of the lii)erty of the trade of a carman, and it was held to be unreasonable, because it went to the private benefit of' the wardens of the hospital, and was in the nature of a monopoly. | ■ -^ 254 VANDINE. c^^' 0^1 4n uj-A^yJ"'' '^ 6^ a-.'vO .v-^^- J^. Now we think that case wac rightl}' decided ; it was an act of oppression. We perceive no reason wh}- the wardens of the hospital should have a superintendance and control of all the business of the carmen, thus laying them under a contribution at the will of the wardens. To arrive at a correct decision whether the b^'-law be reasonable or not, regard must be had to its object and necessit}'. Minute regula- tions are required in a great cit}', which would be absurd in the country. The cases upon this subject are well collected by Baron Comyns in his Digest, title " Bje-law." It has been found to be reasonable in the city of London, to provide that brewers' drays should not be in the streets there after eleven o'clock in the morning in summer, and one in winter ; that no person should unlade coals out of a barge, if he be not of the porter's company; thus in some manner restraining trade. There have been regulations also adopted in that city, that none shall be brokers unless licensed and sworn ; tliat none shall be hawkers without license ; thus in some measure restraining the natural rights of the subjects. Now it is contended that the by-law under considera- tion is in restraint, and not a mere regulation of the trade in which the defendant is engaged ; that he provides as good and tight carls as the men do who are authorized by the city, in the performance of this labor. We do not perceive that there is any more reason to complain of the law requiring a license to do this work, than of the law prohibit- ing the keeping of livery stables in an\' place not licensed. One might just as well complain of the regulation which prevents him from being an auctioneer without license ; and so of various other trades and con- cerns which it is found necessary to subject to such restriction. Tlie great object of the cit}' is to preserve the health of the inhabi- tants. To attain that, they wisely disregard any expense which is deemed to be requisite. They might probably have these offensive substances carried out of the city without any expense, if the}' would permit the people from the country' to take them away at such times and in such manner as would best accommodate them. Ever}' one will see that if this business were thus managed, there would be continual moving nuisances at all times, and in all the streets of the city, break- ing up the streets by their weight and poisoning the air with their effluvia. It is obvious, that the object and interest of the city, and those of the carmen, in this concern, are extremely different. But it is contended that the city authorities may regulate strangers and un- licensed persons, in regard to the number of horses and kind of carts to be employed, just as well as they can carts and the conduct of the licensed persons. It seems to us, however, that the city authority has judged well, in this matter. They prefer to employ men over whom they have an entire control by night and by day, whose services may be always had, and who will be able from habit to do this work in the best possible way and time. Pract ically we think the main object of the city government will be better accomplished by the arrangement they have adopted, than by relying upon the labor of others, against COMMONWEALTH V. STODDER. 255 whom the government would have no other remedy than b}' a suit for a breach of contract. The sources of contagion and disease will be speedily removed in small loads, which will not injure the pavements, nor annoy the inhabitants. We are all satisfied that the law is reason- able, and not only within the power of the government to prescribe, hut well adapted to preserve the health of the city. The direction and opinion of the judge of the Municipal Court was \ '^\ entirely correct \\ ^^^^*-r~'^*''\ '\^ ^^^^^^J^'iT^-'^ \\^ COMMONWEALTH v. STODDER. . "^ \ 1848. 2 Cush. 562. Dewey J.^ The present case comes before us on exceptions to the ruling of the municipal court, upon the trial of a complaint originally instituted in the police court for the city of Boston, and carried by K yJ^ appeal to the municipal court. The defendant admitted, upon the trial, that he had driven an omni- -. r ^ bus set up by a citizen of Roxbury, which carriage ran several times ^^^ each day from the centre of the most populous part of the city of Rox- ^^ bury, through the public streets of the city of Boston, for the convey- J^^"^ ance of passengers, for hire, to and from Roxbury and Boston, and V^ j^ that he drove the same without any license from the mayor and alder- ^y^'^^JS' men of Boston. A*^\s-^^ The defendant denies that this constitutes an offence, for which he \n^ is liable to any penalty of forfeiture. The grounds of the defence ^ „>yN<^ raise the question of_ tlie legality of the ordinajnce of the mayor and j4a^ ^aldermen, adopted July r2th, 1847; the prosecution being instituted to recover a penalty for a violation of that ordinance. In the arguments addressed to the court, the question was somewhat discussed, as to the power incident to municipal corporations, to create bjMaws of the character here adopted ; and a reference was made to various cases in the English courts, where questions of this nature had arisen. Upon examination of those cases, they Will be found less important and less satisfactory as guides here, inasmuch as VWN^ V>-> \-o ^"^ it is quite obvious, that in many of tiiem, and particularly those where s^j-xr^ the ordinance seemed most questionable, as not being within the ordi- nary exerciae of municipal authority, the by-laws were sustained, upon the ground of ancient and long continued usage, ripening into a pre- scriptive right, on the part of the municipal corporation. No such ground can be urged here, and the present ordinance, if sustained at all, must be shown to be authorized by the e xpre^ pro- vision of the charter, or be derived as an incidental power resulting frmrrlts incorporation as a city, or be found in some general or special statu teT" » Statement of facts and arguments omitted. — Ed. 1^^' 256 COMMONWEALTH V. STODDER. The city charter (St. 1821, c. 110) contains various provisions bear- ing upon this subject, (see §§ 1, 13, 15,) which it seems unnecessary l^articularly to consider, because the power is more directly given to the mayor and aldermen, to act upon this subject, by the statute of 1847, c. 224. A-X\ • By this statute, it is enacted, that the mayor and aldermen of any city shall have power to adopt such rules^ and orders, as to them shall ppear necessary and expedient, for the due regulation, in such city, of omnibuses, stage coaches, &c., used wholly or in part in such city, V whether by prescribing their routes or places of standing, or in any other manner whatsoever. The ordinance of July l2th, 1847, was ob- viously passed under the authority supposed to be conferred upon the mayor and aldermen by this statute. We are then brought to the inquiry, whether tha authority vested in the mayor and aldermen by the above mentioned statute will authorize the ordinance now sought to be enforced. This question must be an- i^^"-"-^^, swered by considering somewhat in detail the various provisions of the ^ ordinance: rt4v> - 1. As to those portions of the ordinance prescribing th e routes and ^)^v-^ streets, on which certain lines of omnibuses were to pass, and prohib- ^^A-<> iting such vehicles from being driven on any other route than those thus prescribed, and prescribing their stands. ^ ^^i^-y^cVv^-vv^ Regulations of this nature are regulations as to the use of omnibuses CjX^^ and stage coaches, while passing over the public streets of the city, '^^'*'\1 and are within the legitimate powers of the mayor and aldermen. The '>*A*>J'*\ 1 public safety and convenience of travellers may require regulations of ' .rS>^-*^ \ this character, If new and unusual modes of trunsportiiig persons jover the public streets are introduced, which, from the methods made use of for propelling the carriage, or the size of the vehicle, or the number of horses attached thereto, will obviously endanger the public .- ; 1 safety, or so engross the whole width of the' street as virtually to ex- -*-"'\ elude all other vehicles, or greatly to obstruct them in their passing ^JtAy^^ 'thereon, it would certainly be reasonable and proper and within the ^*^ •*! legitimate powers of the mayor and aldermen, under the statute (j^"""^ J already cited, and the powers conferred by the city charter, to regulate the route of the streets over which such carriages were to run, and the rate of speed, and to interdict the stopping in the public streets un- necessarily, to the great hinderance and delay of those in the rear travelling on the same route. We perceive nothing objectionable in an ordinance, by the mayor and aldermen, providing for the safety and convenience of the public generally, by prescribing, by a general by-law or ordinance, certain streets or portions of streets, to be used for travel by vehicles, expos- ing by their manner of use the lives and limbs of the public generally, who may have occasion to use the public streets, if such vehicles are permitted to use the public streets indiscriminately ; and such regula- tions and restrictions might be warranted even to effect the minor object, '\aSUj^^ "WCX COMMONWEALTH V. STODDER. 257 that of preventing the greatly obstructing the free and convenient use of the streets for general purposes, by interdicting carriages of unusual size or drawn by an unusual number of animals, or those of sucli character as would greatly interfere with the public convenience and safety. To take a strong case : Suppose the proprietor of the omnibuses from Roxbury should deem it expedient to propel his carriages by steam power, passing through "Wasiiington Street, at a rapid rate, would it not be a lawful and proper regulation for the mayor and aldermen to prohibit the using of Washington Street by vehicles propelled by steam power? We cannot doubt that it would be. Acting upon this principle, various ordinances have been adopted by the city government regulating the rate of speed of travellers in the public streets, the hour of the day in which the public streets may be used for certain purposes, and excluding vehicles of all kinds from en- tering upon the sidewalks on the public streets. So far as relates to the restriction of carriages to certain routes, there is nothing in the ordinance preventing any individual from running omnibuses in every direction. The proprietor of the Roxbui-y omnibuses, although those particular vehicles are restricted to certain streets, has also the free use of the various other streets, appropriated to other lines of omni- buses, if he chooses to set up and run an omnibus thereon, as to Charlestown, or Cambridge, or South Boston. We cannot doubt that a by-law, reasonabl y regulating the use of the public streets of the city as to carriages of an unusually large size, or as to those which from the mode of using them would greatly in- commode, if not entlanger, those having occasion to use such public streets, would be valid and legal ; and that such regulations might pre- scribe certain streets as the route of travel for such vehicles, and pro- vide for their exclusion from certain other streets. / 2. The next inquiry is, whether it was competent for the mayor and aldermen to require as a condition precedent to the setting up of an ^(jL^Cy^-y^ omnibus, or stage coach, to run from the centre of Roxbury to the central part of the city of Boston, and carrying passengers for hire, V the payment of the sum stated in § 8 of the by-law of July 12th, 1847, f^^*^.^ and the obtaining a license as required in § 2 of the same ordinance. This question embraces two points of inquiry, which are to some extent distinct in their character : 1. The right to demand the payment of a tax or duty on each carriage licensed, varjing from one^to twenty dollars, according to the different kinds of carriages, and the stand theyoccupied ; and, 2. The right to forbid all persons from setting up such omnibuses or stage coaches, without a license from the mayor and aldermen of the city of Boston. l_ 1 As to the requisition of a paj'ment of money, operating as it does as ' ^ a direct tax upon the veliicle to be used, we cau find no authority for. this pro vision of the o rdijiaiice. Taxes are to be levied under the^pro- v i s io^n s of ge n e ral _ 1 a \v s . enaxU^i b y the legislature. We look in vain lor authointy for it either in the city charter, or ^he statutes of the a-»; ^ 258 COMMONWEALTH V. STODDER. commonwealth. The act of 1847, c. 224, under and by virtue of which this ordinance of July 12th, 1847, was professedly adopted, merely authorized the mayor and aldermen to adopt rules and oi'ders " for the due regulation, in such city, of omnibuses, stages, &c." The power here conferred was not a tax levying power. The title of the act was '' An act to prevent obstructions in the streets of cities and to regulate hackney coaches and other vehicles." All the apparent objects of the act may be secured by due regulations as to the time, place and mode ^ of using such vehicles, irrespective of any payment of a specific duty ^^^ or tax upon them, as provided in the ordinance. As a tax, it would ^ -r^ operate unjustly also, as requiring to be paid to the city of Boston a N cc*^ i specific duty or tax upon a vehicle owned and used by an inhabitant of ^» "^ I another town or city, in which alone he should be taxed for his personal \^\ I property. \^'^ J We are aware, that there are a few cases vrhere a sum of money has ^ r been required to be paid on obtaining a license for exercising certain employments. But they are eases directly authorized by a statute law ^v^^_ of the commonwealth. It would seem to be peculiarly proper where '^^'^ the tax would be a tax upon inhabitants of various towns, that it should be directly authorized by a general law of the commonwealth, .\.fx.^Y^*.~^ iu the enacting of which all the towns in the commonwealth would be heard, and would act upon the subject through their representatives. •"; ^ In the case of Jioston v. ScJiaffer, 9 Pick. 415, where a payment of l^s^v^^t^ money for a license for a theatrical exhibition was held a legal pay- '^ent, the by-law requiring the payment of money was held valid as a power clearly conferred by the statute of the commonwealth, (1821, c. 10,) authorizing the mayor and aldermen to license theatrical exhi- bitions, "on such terms as the mayor and aldernien should think ex- pedient," aucPTipon that ground was sustained. It fui"nishes no" ;^ ^f""^^ • authority for an imposition of a tax under the powers conferred upon the ifjfcd^' mayor and aldermen by the statute of 1847, c. 224, authorizing them ^ n " to regulate hacknev coaches and other vehicles." S^ 6»y^j^y.^ If the sum here required to be paid were a mere provision for paying ^ ly't^^;^^.-^ the expenses incident to giving a license, as was apparently the statute ?^/r*^^ 6i 1796, c. 32, requiring the payment of one dollar for each license, it ^ . f/f^"*' might be unobjectionable, if the requiring the license was itself well (75» * authorized; but the dissimilarity in the sums required to be paid, vary- ' ' ing as they do from one dollar to twenty dollars, for a vehicle, pre- cludes us from any assumption of that sort. Nor can any such tax be ^ '^s*-*'''^ sustained upon the ground suggested in the argument, that the sum levied is not more than sufficient to indemnify for the expenses incident ^ to the supervision of hackney coaches, omnibuses, stages, «S:C. In no aspect in which we have been able to regard this part of the ordinance, can we view it iu any other light, than as an assessment of a tax upon the owners of these vehicles. As such, the court are of opinion, it was without legal authority, and as the obtaining of a license in ali cases requires this payment, the ordinance, so far as it ordains, that COMMONWEALTH V. STODDER. 259 no person shall set up, use, or drive, in the city of Boston, any omni-, bus, without a license from the mayor and aldermen, under a penalty of not less than five nor more than twenty dollars, every time sueti carriage is used, is illegal and cannot b e enforced . A similar question arose in the case of Dunham v. Trustees of Roch- ester, 5 Cowen, 466, where, under an act authorizing the trustees of a village corporation to make by-laws ' ' in relation to hucksters, and for good government of the village," it was held, that the act did not authorize a by-law that hucksters should be required, before exercising their emploj'ment, to take a license, and be taxed a sum varying from five to thirty dollars. Upon the ground of the requisition of the payment of a sum of money obviously intended as a tax upon the owners of the vehicles, the defence of the present case might well be sustained. 3. But as the other branch of the inquiry has been fully opened in 3 ^'f^'^^Ar^^ the argument, we have proceeded to inquire further as to the validity crvv*^v^^-^ of an ordinance of the mayor and aldermen, forbidding any person res- iN^t ^ ident in another town from setting up, using, or driving an omnibus or stage for the carriage of persons for hire, from such other tow^ns to the central parts of the city of Boston, without a license from the maj'or ) ■ju and aldermen of the city of Boston, supposmg no payment of money had been required. How far the general powers conferred by the city charter and the statutes of the commonwealth may well authorize the city government in requiring licenses previous to the exercise of certain trades or occupations, by citizens of Boston, and wholly within the | t^A.^s^'Vv limits of the city, we have not particularly considered. A long usage' ^L^-cnv** of this kind has certainly prevailed to some extent, under the authority supposed to be derived from the general power of the city government; but, in these cases, it will be seen, that it has usually been vested in the city government by express enactment by a statute of the common- wealth. Thus, the practice of licensing hackney coaches, so long , practised in this city, was directly authorized by the statute of 1796, '"^^^'^y CT'S^'tlie licensing of dealers in second hand articles, under a city ,c>>f ijVv.*-'' ■ ordinance, was authorized by statute of 1839, c. 53; the licensing of theatrical exhibitions by statute of 1821, c. 10; and the licensiu^of ]3 orters w as also under a statute. On the other hand, the requiring of licenses of common criers, of those persons who are hawkers of goods, and the licenses of chimney sweepers were solely by ordinances. The requiring a license before any person should be employed in removing house dirt and"offal from the city, is by an ordinance. This latteFordinance came directly before the court in the case of Vandine, ;,^ Petitioner, 6 Pick. 187, and w-as held a valid by-law. In the case of Kightingale, Petitioner, 11 Pick. 168, a by-law re- quiring a license before opening for sale certain commodities in certain streets was held valid. Without calling in question the power of the mayor and aldermen to establish by^-laws forbidding the exercise of certain employments. ■ '^ ^ (^- t 260 COMMONWEALTH V. STODDER. without a license from tbem, by persous, inhabitants of Boston, and whose business is local, and to be carried on in Boston, such by-laws to be always reasonable in their character, and such as impose no unreason- able restraints upon business or trade, but such as are required for the public health or public safety; we have more particularly considered the question of the authority of the mayor and aldermen of the city of o ' iBoston to enact an ordinance forbidding persons, inhabitants of other jtowns and residing elsewhere, from setting up stage coaches and omni- ^ [buses for the conveyance of passengers for hire" from such other towns ""^^vwsAvfci^vto Boston, or from Boston to other parts of the commonwealth, without , iC^**^- a license from the ma^'or and aldermen of Boston. iJ^^T"^ '^^^^ power claimed here, if really understood by the city government 2u^r*^ to the extent embraced by the terms of the ordinance, would be the A AXv^ power to control every stage coach or vehicle used for carrying people 1^ V"^ for hire, though commencing its route at the most extreme limits of A ? the commonwealth, and terminating its route in the city of Boston. ..^ Its purpose was probably much more limited, and had particular refer- ence to the numerous lines of omnibuses running from the adjacent towns into the city of Boston. This mode of conveyance is only the conveying by stage coaches in an improved and more convenient vehicle. It is a system of great public convenience, furnishing facili- ties for passing from the adjacent cities and towns, and ought not to be unnecessarily interfered with by the city authorities of Boston. The much greater part of the whole route travelled may, and in some cases does, lie without the limits of the city of Boston. Considering the case to be that of an inhabitant of Ro xbury, settin,s; up his carriage in Roxbury, and using it for the purpose of conveying persous from Roxbury to the city of Boston, and from Boston to Roxbury, we deem tlie employment one not within the authority oud control of the mayor and aldermen, to any such extent as to authorize them to require a license, before exercising the employment of pr(> prietor of such omnibus, for the conveyance of passengers to and from the central part of the city of Boston. We do not mean to be understood that no by-law can properly be made, extending to inhabitants of other towns, coming within the limits, and in reference to acts within the city. Corporations, having a territorial jurisdiction, have, to some extent, the power to make by- laws affecting all persous, who come within their territorial limits. It was so held in the case of Vandlne, Petitioner^ 6 Pick. 187, and in Nightingale's case, 11 Pick. 168, already cited, but the acts there for- bidden had exclusive reference to acts affecting the city. The city government forbade all persons, except such as were~^ily licensed therefor, to remove offal and dirt from the city, and this by-law was held a valid by-law, as respects strangers coming into the city, and there doing the acts forbidden by the ordinance. So also as to sales of certain articles in certain streets near the Faneuil Hall market. The case before us is of a different character. The business of KENNELLY V. JERSEY CITY. 261 carrying persons for hire from town to town, in stage coaches andj ^-*-^-^ ^^ omnibuses, is not so far a territorial occupation or employmeut, as will authorize the citj' government of Boston to require a license from the iha^'or and aldermen of Boston, before exercising that employment. A by-law, to that effect, is an unnecessary restraint upon the business' of those carrying passengers for hire, and not binding upon inhabit- ants of other towns. For this reason, the by-law must be held invalid as respects the defendant. The exceptions, therefore, to the rulings of the municipal court, are sustained, to such an extent, as to require the verdict to be set aside, and new trials to be had. ' \ STATE EX REL. KENNELLY v. JERSEY CITY. o JJJ^ 1894. 57 N. J. L. 293. ^^^ Dixon, J.^ The boar^ of^stiegt and water com missioners of Jersey ■ jy^ City having, on March' 5th, 1894, passed an ordinance giving the /^ L AT^,,*U XJn^lr.^., /^^.^^4-rT ■Dnil,»r^»» r^^.v^.^««Tr ^^/-.».■r^^^l:•c!l/->^^ tr> IniT fl-nota y. \y.'\ North Hudson County Railway Company permission to lay tracks, ^A erect poles and siring wires on several sti-eets of the city, among them ^V(jrove~street, from Pavonia avenue to the Hoboken ] ""^ ecutors, owning property on that street, sued out this certiorari to >^ ^Grove""street, from Pavonia avenue to the Hoboken line, the pros- ecutors, owning property on th test the legality of the ordinance. We proceed now to examine the objections presented by the pros-~\ - r^-^j ^ ecutors. v^'-*^ '■^P^\ The first is that the ordinance was passed without notice to the own- ^kj,^*.^^ V^)k ers of property along the line of the street. rwvsj-wa ^ ^ It is impossible to frame a universal rule for determining when in- t. rJ^ dividuals are absolutely entitled to notice of the proceedings of public agencies. Like "due process of law," it seems to be a mixed question of abstract justice and established usage. Sometimes it is said that such notice is requisite in all judicial proceedings, but not in those which are legislative or ministerial. With regard, however, to the acts of corporate bodies invested with governmental powers, these terms are often very shadowy, and sometimes appear to be applied to such acts merely on a hypothesis that notice to private persons is or is not deemed essential. Generally, I think, it may be said that whenj rKc private rights are involved, notice must be given to the parties interested. YeF^not always ; for the question whether the power of eminent domain shall be exerted over the property of A or of B is conclusively decided without notice to either, although that certainly involves iPart of the opinion, discussing tlie question whether the trolley system of pro- pelling street cars is within tlie highway easement, is omitted. — Ed. 262 KENNELLY V. JERSEY CITY. private rights. The counterpart of the general rule above suggested is, I believe, of universal application, that, when private rights are not . \x involved, notice to private persons is not essential. ''^ T\ > The matters dealt with in the ordinance now under review, and of s>^ ^-T which complaint is made, the adoption of the trolley system _and. JJifi ■ipJ^ ,\ 1 laying of double tracks in the street, do not invoR^e private rights. >'^^^^ I " Jt may be that the legitimate use of the street by the abutting own- ers will interrupt the passage of cars upon double tracks more fre- quently than it would if there were only a single track, but, as we have seen, the private right will not, on that account, be diminished ; the public using the tracks must put up with the interruption. Haffertij V. Central Traction Co., 147 Pa. St. 579. If this ordinance defined the position of the poles, and thus determined whether the possible in- convenience which they might occasion should be borne by one abut- ting owner rather than another, then perhaps, as is intimated in the equity cases before mentioned, private rights would be so concerned as to require notice ; but the ordinance attempts no such location. Notice therefore was not necessary, unless prescribed by the ^'*^ statutes under which the municipal authorities were acting. These statutes are the charter of the Jersey City and Hoboken Horse Rail- road Company (Pamph. L. 1859, p. 550), an act transferring all its powers, privileges and franchises to the North Hudson Count}' Rail- way Company (Pamph. L. 1874, p. 1264), and a supplement to "An act concerning street railroad companies" (Pamph. L. 1893, p. 241). :^ \' VQ^ None of these acts directs notice to be given. 1^ \> The prosecutors' next objection is that the company has not filed a ^,^,V*'**0 map or survey of its route. The coniplete answer is that none need be \>» filed. Pamph. L. 1874, p. 1264, § 4. Another objection is that in authorizing a double track the ordinance ^j/i^ ^j^ ^ is unreasonable, in view of the narrowness of the street and its other tJ^ uses. The act of 1859, above referred to (Pamph. L., p. 550, § 7), ex- pressly empowers the city authorities to designate the number of tracks that shall be laid in any street, lane or avenue of the city. This delegation of power is too specific to permit the court to overturn /J^tjLVv,*' *^® ordinance on the ground stated, ffaynes v. Cape May, 21 Vroom, 55 ; Trenton Horse Railroad Co. v. Trenton, 24 id. 132. It is further objected that the ordinance, in empowering the company to construct "any and all necessary^ ciirves, sidings, crosaavers and lA^'**'*''^ switches, that may be required for the proper, safe and economical op- \K^^i eration of the railway," is unreasonably vague, and delegates a dis- VnA*"*-^ ~ cretion which the municipal board itself was bound to exercise. sjX^U^' This objection is valid. The act of 1859, section 7, and the act of -V 1874 (Pamph. L., p. 1264, § 3), forbid the laying of any track or tracks KS^sX^^^ along any street, unless the consent of the governing municipal bod}' ^ xf^^ be first obtained. "We think this language fairly implies that the pub- ^v*^ ' lie body shall know what particular tracks the company proposes /r \,M^ to lay before it determines whether it will consent or not. Only in KENNELLY V. JERSEY CITY. 263 e»* .tX dUA this -way can the public representatives give to public interests that protection which the legislature designated. The last objection to be considered is that the ordinance does\^^ not prescribe the manner in which or places where the poles shall be located, or the manner in which wires shall be strung thereon. This objection rests npon the third section of the supplement of 1893, before mentioned (Pamph. L., p. 241), which enacts that the municipal authorities may, when they deem it proper, authorize the use of poles to be located in the public streets, with wires, &c., *"and when a board grants such authority it mc^Mn such case prescribe the manner in which and the places where such poles shall be located, ancV the manner in which the wires shall be strung thereon,~liud the same may be authorized and prescribed by ordinance." The question at once arises whether the language, "it may in such lcv_ ti;^ case prescribe the manner," &c. , imposes a duty on the public body, ' or merely clothes it with a discretionary power. Ordinarily the word " may" implies permission only, but often it is construed to be mandatory. It is noticeable that in this very section the term is used in both senses. In the first clause, that the municipal authorities may, when they deem it proper, authorize the use of poles, &c., it clearly was intended to vest the authorities with discretionary power ; while in the last clause, " and the same may be authorized and prescribed by ordinance," the term is mandatory, and in no other mode can the power be exercised. The sense of the word in the middle clause now under consideration is less clear, but I think it is mandatory. The general rule is that this fore will be given to"~tW-^5rtl whenever it is employed in a statute to delegate a "power, the exercise of which is important for the pro- tectiou' of puljtic or private interests. Sedgw. Stat. & Const. L. 40' ^'> York v. Fi-'rzi', 3 Hill 612; Central Land Co. \. Bayonne, 27 Vroom 297 ; 14 Am. & Eng. Encycl. L. 979. It is undoulitedly of importance to public interests that the poles and wires which arelo '^.t«-w>.p convey so dangerous an agent as electricity through the public str eets .u^iAr v. should be properly placed and constructed. This is not secured by the provisions of this ordinance, which merely require the poles to be erected on the sidewalk adjacent to the curb-line, and the wires to be suspended seventeen feet above the grade of the street. For this reason also the ordinance is illegal. The defendants suggest that the prosecutors have no standing to question the legality of the ordinance. But when it is remembered that the railway company is intending to place tracks, poles and wires upon the lands of the prosecutors, and 'that it has no right to do so, except under public authority lawfully conferred, it becomes evident that the prosecutors are entitled to question the legality 'of the authorization. Rend v. Camden, 25 Vroom 347. So far as it purports to affect the lands of the prosecutors the or- dinance must be set aside. a . Cvts-*- 264 HAWES V. CHICAGO. X^.aP^"'^ .eiAt^^^''''^^^^>^^ *" HAWES V. CHICAGO. V^^^ ^ ^^^"^^ ^ 1895. 158 ///. 653. .• -pO^t^^^f*^^ rf!j^^^^^ * ' Baker, J. This is an appeal from a judgment of confirmation of a > *^ special assessment made under an ordinance of the city of Chicago -f-'*-^' passed March 7, 1892, and providing for the construction of a cement it v^'^*" sidewalk on Fiftieth street, from Lake avenue to Drexel boulevard. \j'Vr^ The commissioners appointed to assess the cost and expenses of the i/v^^ improvement upon the property benefited thereby, returned into court V-*^ an assessment roll, in which the property here in question, then owned by John H. Dunham, since deceased, was assessed in the sum of $1915.50. Various objections, in writing, were filed by said Dunham and overruled by the court. The question of benefits was submitted to a jury, and the jury, in their verdict, reduced the assessment on the property to $1638.75. Motions for a new trial and in arrest of judg- ment, as well as motions to dismiss J;he petition and to cancel the as- sessment, were made by the objector and overruled by the court, and exceptions taken, and the court entered judgment of confirmation for the amount fixed by the verdict of the jury, and the objector perfected an appeal to this court. John H. Dunham, the objector, thereafter died, and his death was suggested, and by leave of court Helen Elizabeth Dunham Hawes and Mary Virginia Dunham, who are his heirs-at-law and devisees under his will, now prosecute the appeal. It is claimed by appellants that the ordinance providing for the con- struction of the cement sidewalk, and under which the assessment was made, is unreasonable, unjust and oppressive, and therefore void. The uncontradicted evidence in the case shows that the tract of land, the south fifty feet of which is assessed for this improvement, is a twenty- acre tract, having a frontage of 1256 feet along Fiftieth street, where it is proposed to construct this cement sidewalk; that there is not a bouse or a building of any kind upon it, and that it is an unsubdivided tract of land, and the ^ilyuse to which it is put is that of a field for raising hay. Only five months before the passage of this ordinance for tlie construction of a cement sidewalk, the devisor of the appellants in this ease, in compliance with a prior ordinance of the city duly passed for that purpose, constructed and put down along the line of this street, in the very place where this cement sidewalk is to be placed, a wood sidewalk six feet in width, made of plank laid crosswise on stringers or joists, in strict conformity to the regulations and require- ments of the city, and this plank sidewalk, at the time this ordinance on which the present proceedings are based was passed, and at the time this case was heard in the coui't below, was in good order and condition. The uncontradicted evidence further shows that the street along which it is proposed to construct this cement sidewalk has never been improved by the city. It is neither curbed nor paved, sewered nor watered, surveyed nor graded. If it is to be considered as a street sixty-six HAWES V. CUICAGO. 265 1 feet wide, then there is a line of telegraph poles planted right through tlie center of it, and the north thirtj^-three feet of it has never been formally dedicated by the owner to public use nor condemned by any municipal corporation, and if the public have any right to it at all, it is a right by prescription or by implied dedication. Such was and is the condition of this street in front of appellants' property, and yet, as appears from the record of the case, the common council of the city of Chicago, only five months after the construction, at a great expense, of a new plank sidewalk, built in conformity with the order of the city council, 1256 feet long, passed a second ordinance ordering this new plank sidewalk torn up and a cement walk, at an as- sessed expense of $1915.50, or S1G38.75, put down in its place. It is admitted by the city — at least not denied — that this plank or wooden sidewalk, at the time the ordinance for the cement sidewalk was passed and at the time this case was heard in the court below, was in good or- der and condition, and will answer equally as well, for the purposes of travel, as a cement walk. Now, can it for a moment be contended that it is not unreasonable, unjust and 0[)ijressive to compel the owner oTa vacant twent3'-acre lot first to construct and pay for a wood side- walk^and then, within less than six months, and when it is iu substan- TialTy as good condition as when first built, and in all respects safe, com'ement and sufficient for public use and travel, take it up, throw' TT'away and put down another in its place at an expense of over $1600? It seems to us that it cannot be, especially when we take into consid- eration the fact that the street has never been improved, curbed, graded, paved or sewered. And further ; it is clear, from the evidence in the case, that if this judgment should be affirmed and appellant compelled to take up the wood sidewalk and put down one of cement, the cement sidewalk will be ruined by putting in the house drains every twenty-five feet along the line of the street, or at least seriously injured, and when- ever the street is improved and dwellings are constructed along the line of the walk the walk itself is quite likely to be destroyed. An ordinance must be reasonable, and if it is unreasonable, unjust audToppressive the courts will hold it invalid and void. {City of Chicago V. Eiimpff, 45 111. 90; Tvgman v. (7% of Chicago, 78 id. 405). The question of the reason ableness or unreasonableness of a municipal or^ dinance is one for the cfecision of the court, and in determining that question the court will have regard to all the existing circumstances or contemporaneous conditions, the objects sought to be obtained, and the necessity or want of necessity for its adoption. (Toledo, Wabash and Western Railway Co. v. City of Jacksonville, 67 111. 37; City of Lake Vieivx. Tate, 130 id. 247 ; 1 Dillon on Mun. Corp, sec. 327.) And even where the power to legislate on a given subject is conferred on a muni- cipal corporation, yet if the details of such legislation are not prescribed by the legislature, there the ordinance passed in pursuance of such power must be a reasonable exercise thereof, or it will be pronounced invalid, 1 Dillon on Mun. Corp. sec. 328; City of St. Paul v. Colter, 12 Minn. 41 ; 266 HAWES V. CHICAGO. Dunham v. Trustees of Rochester, 5 Cow. 462; Breninger v. Beloldere, U N. J. Law, 350. lu Cooley on Taxation (p. 428) it is said : "A clear case of abuse of legislative authority in imposing the burden of a public improvement on persons or property not specially benefited would undoubtedly be treat- ed as an excess of power, and void." In Allen v. Drew, 44 Vt. 174, ftXki^*^'' the court, by Redpield, J., says: "We have no doubt that a local lassessraent may so transcend the limits of equality and reason that its exaction would cease to be a tax, or contribution to a common burden, and become extortion and confiscation. In that case it would be the aluty of the court to protect the citizen from robbery under color of a better name." In Wistar v. Philadelphia, 80 Pa. St. 505, Chief Justice Agnew says: "But if we say the city may change its pavements at pleasure, and as often as it please, at the expense of the ground owner, we take a new step, and there must be explicit legislation to author- ize such taxation. If, while the pavement is good and stands in no need of repair, the city may tear it up, relay, and charge the owner again with one excessively costly, it would be exaction — not taxation. We are not at liberty to impute such a design to the legislature, unless it has plainly expressed its meaning to do this unjust thing." And in Wistar Y. Philadelphia, 111 Pa. St. 601, it is held that where a property owner has well and properly set curb-stones in front of his property, at his own expense, on the proper line, in accordance with the style in common use, and they are in good order and repair, the expense of re- placing them with others cannot be provided by an assessment upon his propert}'. In Corrigan v. Gage, 68 Mo. 541, it was held that the ordinance for the paving of the sidewalk there in question was unreason- able and oppressive and subject to judicial inquiry, because such side- walk was in an uninhabited portion of the city and disconnected with any other street or sidewalk, and the judgment of the court below was reversed. In City of Bloomington v. Chicago and Alton Railroad Co., 134 111. 451, this court held that where the ordinance is grossly un- reasonable, unjust and oppressive, that may be shown in defense of the application for confirmation. In City of Bloomington v. Latham, 142 111. 462, we held that an ordinance directing that the cost of the land taken or damaged, or both, should be assessed upon and collected from the lands abutting upon the proposed alley or street, in proportion to the frontage thereof, was unreasonable and void. And in Davis v. City of Litchfield, 145 111.313, and PaZmer v. City of Danville, 154 id. 156^ ordinances levying special taxes for local improvements were held to be unreasonable, arbitrary abuses of power, and void. The rule is, that i t re quires a clear and strong case to justify a court in annulling the action of a niuuieipal corporation, acting within the ai)- parent scope of its authority. But in our opinion such a case appears in tills record. We think that the ordinance in question, in so far as and to the extent that it affects the property of appellants, is unrea- sonable, unjust and oppressive, and therefore void. EX PARTE McCARVER. 267 The judgment of confirmation as to the property of appellants is re- versed, and, the ordinance being void as to such property, the cause will not be remanded. r\ . ,, W^-T_— ^ \ Judgment reversed. ^ yy^'l^^'''^^^ Ex Parte McCARVER, 1898. 39 Tex. Cr. 448. Henderson, J.^ This is an appeal from a proceeding under a writ of habeas c orpus. It appears in the city of Graham, Young county, the city council have passed what is termed a "jcurfew ordinance ." • ••■••••• That after said ordinance went into effect the relator, a young man 19 years of age, was found by the city marshal of the city of Graham on the street more than fifteen minutes after the city marshal had rung the curfew bell at the Baptist Church, in said city, on the night of the 18th of April, 1898. That said marshal held and detained him for a violation of said ordinance. He sued out a writ of habeas corpus, and, upon an examination of the case, he was remanded by the county judge, and he now prosecutes this appeal. The question here presented is as to the legality of said ordinance. If it be such a one as the city council had a right to pass, then tlie , r\ Vt relator is entitled to no relief; otherwise he is. It appears that a dis4 y"'*'*^^ ^ tinction is made between ordinances passed under an express grant orl O^-^'^-' power by the Legislature and ordinances which are merely passed under! a general power. As to the former, courts are not inclined to inquire \ \-^^'^-'>>* into their reasouability, but as to the latter, if an ordinance does not V^'N^A.*-n_ appear to be reasonable, the courts will declare them void. See 17 ' ''-o- Am. and Eng. Enc. of Law, p. 247, and authorities there cited ; Cool. Const. Lim. 4 ed., pp. 243, 244, and note. "We will treat the question on the proposition as to whether or not, conceding that the municipality has authority under its general powers to pass any ordinance that is reasonable to preserve the public peace and to protect the good order and morals of the community, the ordi- '■^(,_^^lr« nance in question is reasonable. We hold that it is not; that it is t[,,,y..jujb-- paternalistic, and is an invasion of the personal liberty of the citizen.. F If-^^-*^ Tt may be that there are some bad boys in our cities and towns whose '»'^-«»-*«^ parents do not properly control them at home, and who prowl about the streets and alleys during the nighttime and commit offenses. Of course, whenever they do, they are amenable to the law. But does it therefore follow that it is a legitimate function of goverment to restrain them and keep them off the streets when they are committing no 1 Argument and part of the opinion omitted, — Ed. 268 STATE V. BOARDMAN. offense, and when they may be on not only legitimate errands, but en- gaged in some necessary business. At common law a conspiracy was an indictable offense, and under our statute a conspiracy to do certain things is an offense. If persons go upon the street, whether under or over age, in pursuance of a conspiracy to commit burglary or some other offense, they are indictable. But it is not claimed here that the going upon the streets by a{)pellaut was in pursuance of any conspiracy to commit any offense. We understand it to be made unlawful for any person under 21 years of age to go upon the streets after 9 o'clock a"t night, or, more strictly speaking, later than fifteen minutes after the ringing of what is called the ' ' curfew bell " provided for by the ordi- nance. True, s ome exc eptions j£e made. For instance a person under 21 years of age may go upon the streets with his parent or guardian, and such person can go upou the streets in search of the services of a physician, but these are the only exceptions. We can well imagine a number of other exceptions. Indeed, so numerous do they occur to us that they serve themselves to bring into question the reasonability of the law. A minor may be unavoidably detained away from home until after night, yet in passing along the streets on his way to his home he commits an offense. He may be at church or at some social gathering in the town, and yet when the curfew bell tolls in the midst of a sermon or exhortation, he would be compelled to leave and hie himself to his home, or, if at a social gathering, he must make his exit in haste. He could not be sent by his parents to a drugstore, or, for that matter, on any errand, save and except for a physician. The rule l aid down here is as ligid as under militaryjaw, and makes~tIaeTolling of the _curfew bell equivalent to the drum taps of thu' camp. In our'opiuion. itls an undue invasion of the personal liberty of the citizen, as the boy or girl (for it equally applies to both) have the same rights of ingress and egress that citizens of mature years enjoy. We regard this char- acter of legislation as an attempt to usurp the parental functions, and as unreasonable, and we therefore hold the ordinance in question as illegal and void. See City of St. Louis v. Fitz, 53 Mo. 582; Citi/ 'of Vfiwago V. Trotter, (111. Sup.) 26 N. E. 359. The relator is ordered O^t^ '''"''^'°'^'- ^^^^.-:^^ (W>^./A STATE V. BOARDMAN. -^r^f^t-MS^ \ 1899. 93 Me, 73. •. .^4^f>^\ d WiswELL, J. Complaint for the alleged violation of the following ^ ordinance or by-law of the town of Rockport: " All of that portion o^ Union Street in Rockport situated Northerly and Westerly and within fifteen (1^ f eei.of the Northerly and Westerly rail of the Electric R. R. track, is hereby set apart and designated as the portion of said street over and upon which lime-stone may be transported on wheels, also all other material on wheels, where the load, exclusive of cart, wagon or STATE V. BOARDMAN. 269 vehicle, exceeds 2,500 pounds in weight ; and all persons are prohibited from using any other portion of said street for the purposes aforesaid ; and any person engaged in transporting lime-stone on wheels or other material of the weight aforesaid, on wheels, using any other portion of said street for such purpose, shall be fined not less than two nor more than five dollars for each offense, to be recovered, by complaint, to the use of the town of Rockport." The respondent attacks the validity of this by-law upon three g rounds, namel^v'T^ecause it had never been approved by the county commis- ^-^ sioners of Knox county or by a justice of the Supreme Judicial Court; [2y because it is inconsistent with the laws of the State ; and because it is unreasonable. Must such an ordinance be approved by the county commissioners or by a justice of this court? We think not. r^ Aw / ' The legislature of this state has by various enactments at differently O^^^ times given to municipalities the power to adopt by-laws in regard to ^*^ a large number of matters, all of which different enactments have been (y^^ a-t-*-^ condensed into c. 3, § 59, of the present revised statutes. As that Vj^^ ^ section now reads municipalities are authorized to adopt such ordi- rt^-,^,^ nances for the purposes named in twelve separate paragraphs. I^y,'C\pj^^jjU. paragraph I, " For managing their prudenti al affairs^ ' such by-laws - . must be approved by the countj' commissioners or by a judge of this ' '^ court; but in regard to bj'-laws in relation to the purposes, enumerated yv^ in the othe necessarv. in the other eleven paragraphs of the section, no such approval is made (pvtUw^^ The words "prudential affairs" are certainly very indefinite and *^W**^ unsatisfactory, and it might be a very difficult matter in many cases to determine just what is or is not included within the meaning of the expression. This term was taken from the Massachusetts statute where the same difficulty has been appreciated. In the case of Spaxdding v. Loivell, 23 Pick. 71, Chief Justice Shaw said: "The ambiguity lies in the indefinite term,' 'prudential affairs,' and the diffi- culty arises in each case in settling what concerns fall within it." But however indefinite the term may be, that it was not intended to cover the matters enumerated in the other paragraphs of the section, is shown, we think, both by the language of the original enactments and the text and arrangement of paragraphs in the section of the revision, by which towns are empowered to make by-laws in regard to police regulations ; respecting infectious diseases ; for setting off portions of streets for sidewalks ; in regard to the erection of wooden buildings ; and as to various other matters. The authority of a municipality to adopt such an ordinance as the one here under consideration is given, we think, by paragraph IX : " For the regulation of all vehicles used therein, b}' establishing the rates of fare, routes and places of standing, and in any other respect." So therefore it only remains to inquire whether this by-law is incon- sistent with law or is unreasonable. "We are unaware of any law of the State which it contravenes. All public ways and streets are for the u 270 STATE V. BOARDMAN. i.^ accomodation primarily of travelers of all classes and kinds, but the traveler is not in all, or in many cases, entitled to'^liKe wh6le WtftttTOf' the st reet for his acconamodatiou. He is entitled to a reasonably safe, convenient and practicable opportunity for travel and passage. A portion of a way as located, not being needed for travel, may be left outside of the wrought road, another portion may be set off for side- walks and the use of the remaining width of the way so regulated that heavily loaded teams and other vehicles shall use exclusively different portions thereof, and still no one would be deprived of his rights, but upon the other hand all might be very much benefited in the exercise of them. Highways and streets are of course for the public use, they are not M3^- aJpne for the people of the municipality in which they are located, and such ways cannot be considered in any sense the easement or property of the town; but the municipality in which a public way is located has been vested by the legislature with the supervision and control of such way s for public use, and are charged with the responsibility of keeping them in repair and reasonably suitable and suflBcient for use by the \public for purposes of travel. The power to properly regulate the use •of ways so as to preserve for all the rights of all is not inconsistent with any provision of law. Such a by-law does not deprive a person of any right, it simply regu- lates the exercise of it, and it can be readily seen that such a regulation may afford to all travellers much better opportunities for travel than they could otherwise enjoy. In Commomvealth v. Stodder, 2 Cush. 562, the court said: "We cannot doubt that a by-law, reasonably regulating the use of the public streets of the city as to carriages of an unusually large size, or as to those which from the mode of using them would greatly incommode, if not endanger, those having occasion to use such public streets, would be valid and legal; and that such regulations might prescribe certain streets as the route of travel for such vehicles, and provide for their exclusion from certain other streets." Was this by-law reasonable ? By its terms all persons passing over the street named, with any vehicle on which there were loads exceeding 2,500 pounds in weight, are restricted to the use of fifteen feet of the width of the street next to the electric railroad track. That this would \'c>Arbe a reasonable, and in many cases a most salutary regulation, we have no doubt; but such_a by-law might be unreasonable, if that por- tion of the way to which such vehicles were restricted was allowed to • become in such a condition as to be impassable, that is, if the only portion of the way which the by-law allowed to be used for heavily loaded vehicles could not be at all used, because it had been allowed fo"become in such a condition of want of repair as to be impassable, V then that portion of the public, who had occasion to use the way for this purpose, would be absolutely deprived of their right to use the w^ay for the purpose of travel. >^ ELKHAKT V. MURRAY. 271 For such a by-law then to be reasonable and valid, with reference to such a way and in such a locality as in this case, thaj portion of t he street whiclynay be_u8ed by heavily loaded vehicles must be reasonably suitalSIe^ for the purpose; and the by-law will be valid or invalid de- ^ending upon whether that portion of the way, to which such vehicles are restricted, is or is not reasonably suitable for the purpose. Here the defendant offered evidence tending to prove that the fifteen feet in width of street next to the railroad track was absolutely impas- sable. The evidence was excluded. We think it should have been admitted because, if true, the by-law became unreasonable. It is true that the question of the reasonableness of a by-law is for the determination of the court, and this conclusion does not take away from the court the determination of the question : certain facts will have to be passed upon by the jury; but the standard upon the question of the reasonableness or otherwise of the by-law is established by the " Monks, C. J "It Exceptions sustained- ^' ec- %:^' ELKHART v. MURRAY. 1905. 165 Ind. 304. V ^-^ ' This action was brought by the city of Elkhart for t< the violation, by appellee, of an ordinance which provides that ^y>^'^ " ^ shall be unlawful on and after May 1, 1903, to run any street ear with- "^^ in the limits of said city without having securely fastened to its front end a Hunter Automatic Fender, made by the Hunter Automatic Fen. der Company, of Covington, Kentucky, or some other fender ecju^lly as good, to be ap proved by the common council or its street committee/^ TlTecourt below held the ordinance invalid, and rendered judgment in favor of appellee. There was no law in force in 1903, when said ordinance was passed, (^ .^'^>* granting, in express words, to cities of the class to which appellant be- e^ longed the power to require street cars running within the city limits , to be equipped with fenders. But, assuming that such power may be ^«a. implied from those granted {People v. Detroit United Railway [1903], <>«*i-^^* 134 Mich. 682, 97 N. W. 36, 63 L. R. A. 746, 749, and cases cited), was said ordinance a reasonable exercise of that power? Such power, if possessed by the city, must be exercised by ordinance. The ordiA On.^«>''''^ nance must contain permanent legal provisions operating generally and 0"Y^ impartially upon all within the territorial jurisdiction of such city, and no part thereof be left to the will or unregulated discretion of the com- mon council or any officer. If an ordinance upon its face restricts the. righ t of dominion which the'^owner might otherwise exercise without question, not according to any uniform rule, but so as to make the ab- solute enjoyment of his own depend upon the arbitrary will of the city authorities, it is invalid, because it fails to furnish a uniform rule of s^^ W-- v'-^^.-a r^ UxJ(JU i.. .'~^J 272 ELKHART V. MUREAY. -iA'^ action and leaves the right of property subject to the will of such authorities, who may exercise it so as to give exclusive profits or privi- leges to particular persons. City of Richmond v. Dudley (1891), 129 Ind. 112, 13 L. R. A. 587, 28 Am. St. 180, and cases cited; Bills v. City of Goshen (1889), 117 Ind. 221, 3 L. R. A. 261 ; Bessonies v. City of Indianapolis (1880), 71 Ind. 189; City of Fly month v. ScMd- theis {189S), 135 Ind. 339 ; Mayor, etc., v. i^aJec/te (1878), 49 Md. 217, 33 Am. Rep. 239; State ex rel. v. Bering (1893), 84 Wis. 585, 54 X. W. 1104, 19 L. R. A. 858, 36 Am. St. 948; Cicero Lumber Co. V. Tov:n of Cicero (1898), 176 111. 9, 27, 51 N. E. 758, 42 L. R. A. 696, 08 Am. St. 155, and authorities cited; Noel v. People (1900), 187 111. 587, 591, 592, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. 238; City of Chicago v. Trotter (1891), 136 111. 430, 438, 26 N. E. 359; Stcde V. Tenant (1892), 110 N. C. 609, 612, 613, 14 S. E. 387, 28 Am. St. 715, 15 L. R. A. 423, and cases cited; Toum of Stcde Center v. Bar- e?istein (1885), 66 Iowa, 249, 23 N. W. 652 ; City of Jacksonville v. Ledwith (1890), 26 Fla. 163, 7 South. 885, 9 L. R. A. 69, 23 Am. St. 558, and authorities cited on pages 575, 576 ; City of Neivton v. Belger (1887), 143 Mass. 598, 10 N. E. 464 ; Sfate v. Mcdiner (1891), 43 La.' Ann. 496^98, 9 South. 480; May v. People (1891), 1 Colo. App. 157, 27 Pac. 1010. In Bessonies v. City of Indianapolis, supra, at page 197, this court said: "Without any provision as to the location or management of hospitals, the ordinance attempts to make it unlawful for any one to es- tal)lisli or conduct one without a license or permit from the common couicil and board of aldermen; and the granting or refusal of the license or permit is not governed b}" any prescribed rules, but rests, in such case, in the uncontrolled discretion of the comm^on council and board of aldermen. It is apparent, that, under the ordinance, if valid, the common council and board of aldermen have the power to \ grant or refuse the license in any given case, at their mere pleasure; aud that no one can conduct or maintain a hospital within the city, however harmless or beneficial it might be, except by the consent of the common council and board of aldermen. It is not necessary to suppose that the common council and board of aldermen would [^ ^ , *'^\^,P^oJ / abuse the power thus assumed by them, to grant or refuse the license, *1\' f .f. I as they might think proper, or that they would exercise it otherwise "I than as they might think for the public good. It is sufficient to say, that, if the ordinance is valid, the common council and board of alder- men have it in their power to grant one person a license, and refuse another, under the same circumstances. No law could be valid, which, by its terms, would authorize the passage of such an ordinance. The twenty-third section of the bill of rights provides, that ' The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.' What the legislature cannot do directl}' in this respect, it cannot authorize a municipal corporation to do." 3 \.^A t y «' ^ COMMONWEALTH V. MALETSKY. 273 In City of Richmond v. Dudley^ snpra, at page 116, this court said : *' It seems from the foregoing authorities to be well established that municipal ordinances placing restrictions upon lawful conduct, or the lawful use of property, must, in order to be valid, specify the rules and conditions to be observed in such conduct or business ; and must admit of the exercise of the privilege by all citizens alike, who will comply with such rules and conditions; and must not admitof the exeicise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities, between citizens who will so comply." It will be observed that said ordinance requires the use of the par- ticular fender described herein, or some other fender equally as good, to be approved by the common council or street committee. The ordi- nance^ valid, vests in .theXQiDmou council and street committee an. ai;- bitrary discretion which they may exercise or not at their pleasure. They have the power to approve a fender for use by one street railroad company, and refuse approval of the same fender for use by another company under the same circumstances and conditions. They also have the power to approve one or more fenders, and refuse approval of other fenders equally as good or better, whether made by the street railroad company or some one else, thus arbitrarily discriminating in favor of some manufacturers and against others. It is the fact that said of- ficers have the power to do this, and not that they will do so, that render^ said ord^nancejpyalid. j) Judgment affirmed. ^p^. MMONWEALTH v. MALETSKY. v>-o^ ^ i^' 1909. 203 Mass. 241. jP^ dy*^ Complaint filed in the police court of Chelsea on August 18, 1908, . ^'^ charging the defendant with using a certain building in Chelsea for the V'^ purpose of picking, sorting and storing rags therein, without a permit ^ in writing from the chief of the fire department of Chelsea.^ *i,' • • • • • • • • • Sheldox, J. The first sentence of c. 30 § 64, of the City Or- dinances of Chelsea reads as follows: "No person shall use, occupy or maintain any building for the purpose of picking, sorting, or stor- CA-Vak® o^ x^Z^ therein, without a permit in writing from the chief of the ^°; ,- fire d epartment." The fundamental question now presented is j^y^ w hether this prohibition c an be enforced as a valid exercise of the •V? police power. And the question really is whether the prohibition can ^P-»^-^' be upheld under the provisions of R. L. c. 104, § 1, that "Every city, ^ <; except Boston, and every town which accepts the provisions of this section or has accepted the corresponding provisions of earlier laws v» ;^C' " The statement of facts is omitted. — Ed. - \c i -' — Vw.*:*^ >-^ Y>-'^--Oov>-«3i-Si- Jtd^v 27,4 COMMONWEALTH V. MALETSKY. > 4,<-,S^A'"may, for the prevention of fire and the preservation of life, by ordi- nances or by-laws not inconsistent with law and applicable throughout ^^*^^l the whole or any defined part of its territory, regulate the inspection, j^NJ^ materials, construction, alteration and use _ of buildings and other structures within its limits, except such as are owned or occupied by the United States or by the Commonwealth and except bridges, quays and wharves, and may prescribe penalties not exceeding one hundred dollars for each violation of such ordinances or by-laws." This or- dinance cannot be sustained under the authority given by R. L. c. 25, § 23, or by St. 1902, c. 187, for the reason that the penalty authorized j by these statutes is limited to 820, while the penalty for the violation of any of the provisions of the chapter before us is a fine of not less than $20 nor more than $100. And this ordinance appears to have been intended wholly to guard against the danger of fire. Accordingly it cannot be sustained on the ground of Commonwealth v. Huhley^ 172 Mass. 58. We assume that it was within the power of the municipal authorities uiu.^^r^^'to decide that rags were more iiiflainmable than many other articles, j-^TUifk ahcT^that the "business of picking, sorting, or storing them involved vull^J^''^ peculiar danger of fire, and therefore that onlinances properly miiiht be passed to regulate the materials and conytructioa of buiklingo u.^ed for that business and to provide for the inspection and fix the mode of use of such Ijuildings. This is within the principle of many decisions. Salem v. Maynes^ 123 Mass. 372; Train v. Boston Disinfecting Co., 144 Mass. 523, stated in Cojyimonwealth v. Sisson^ 189 Mass. 247, 253; Commonioealth v. Parks, 155 Mass. 531 ; Newton v. Joyce, 166 Mass. 83; Clark v. South Bend, 85 Ind. 276; Greeny. Lake, 60 Miss. 451; In re Hang Kin, 69 Cal. 149; McCloskey v. Kreling, 76 CaL 611; Barhier v. Connolly, 113 U. S. 27; Soon Hinv*- c. 559) , the department of the city government which was entrusted by "^'^^±2: the Legislature with the exercise of this power. Doubtless it is to be expected that a subordinate officer entrusted with such unlimited pow- er will use it wisely and with a view only to the public good ; but, as in WlnthropY. New England Chocolate Co., 180 Mass. 464, 46G, there is nothing in the ordinance to guide him in passing upon the applica- tions that may be made to him. His action in revoking a permit once issued may be appealed from ; l)ut his refusal to issue any permit is final. It is left entirely to his untrammeled discretion whether the business of keeping or sorting rags shall be carried on at all in Chel- sea, or whether, if carried on, it shall be confined to persons of one nationality or of one way of thinking in religion or politics. As in Newton v. Belger, 143 Mass. 598, 599, there are no regulations to guide the applicant for a permit as to what he must do or what quali- fications he must show in order to entitle himself to a permit. Every person, however careful and however well qualified, is forbidden to use any building, although absolutely fireproof, for the storage of any rags, although quite incombustible, without a permit which no qualifications I might enable him to obtain. Neither expressly nor by necessary im- 11 ^^sJij3>»-^ I plicatiojiis the chief of the fire department required to base his action 11 fu j tf R^MtJ ^ I in granting or refusing a permit upon the danger of fire involved^ It If Vjov.* r has been held that when such unlimited power has been granted by ^ '^ " the Legislature to certain designated municipal boards or oflicers, an ordinance by which they undertake to delegate this power absolutely to a subordinate officer will be merely void. Coffin v. Nantucket, 5 Cush. 2G9 ; Day v. Green, 4 Cush. 433 ; Loivell v. Simpson, 10 Al- len, 88; Commonwealth v. Staples, 191 Mass. 384; Cicero Lumber Co. V. Cicero, 176 111. 9 ; Chicago v. Trotter, 136 111. 430; State Cen- 1 t^--'^ r-, v-vy^ ,\v" tre \,_Bajrenstein^6& Iowa, 2 ^4^. v-« r^ wO-*-0" This is not a case where the city government has 'general control of the subject matter of the ordinance and may impose such conditions ^.^ as it pleases, as in Conimomvealth v. Ellis, 158 Mass. 555, Common- 1^ icealth V. Mulhcdl, 162 Mass. 496, and similar cases. The power of the city of Chelsea to deal with this subject is only what is given by R. L. c. 104, § 1 ; and the city authorities can in no respect transcend the authority thus given. Commomvealth v. Turner, 1 Cush. 493; State V. Schuchardt, 42 La. Ann. 49. "We need not doubt the power of the Legislature to establish such regulations as this, or to delegate! that power to city governments or other boards if it desires to do so, (UXjl^^^,^ Ki-.-- and to make licenses or permits from an administrative officer necessary to the exercise of trades or kinds of business that might involve a pub- lic danger. Many cases to this effect have been already referred to. See also Commonioealth v. Page, 155 Mass. 227, 230; Common- wealth v. Abrahams^ 156 Mass. 57, 60; Commonioealth v. Eoswell, 173 "^ A^Cf^M 276 COMMONWEALTH V. MALETSKY. Mass, 119; Attorney General \. Williams, 174 Mass. 476, 478; Brod- hine \. Revere, 182 Mass. 598; Sprague \. Miiion, 195 Mass. 581; Commonwealth v. Kingshxtry, 199 Mass. 542. But as has been already pointed out, the effect of the enforcement of this ordinance by the chief of the fire department may be wholly to prohibit the carrying on of the TVV specified business in Chelsea. It is practically for him and not for the ^ilfliod (board of control to make such rules and regulations to be observed by j any to whom he may choose to give permits as he may think proper; I and so far as he may make compliance with his regulations a condition precedent to the issue of a permit, his power is absolute. These are legislative functions. And as was said in Cooley on Constitutional Limitations (7th ed.), 293, a " very important limitation which rests upon municipal powers is that they shall be executed by the municipal- ity itself, or by such agencies or officers as the statute has pointed out. So far as the functions are legislative , they rest in the discretion and judgment of the municipal body entrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates or of any other authority. " State v. Paterson, 5 Vroom, 163, 168; Lyon v. Jerome, 26 Wend. 485; Brooklyn v. No- dine, 26 Hun, 512; East St. Louis v. Welirung, 50 111. 28; Kin- mundy v. Mahan, 72 111. 462 ; Buggies v. Collier, 43 Mo. 353. The general principle also has been affirmed that, at any rate in the absence of a clear expression of the legislative will, an ordinance which attempts to vest in a city counoil or a board of control or some administrative officer of the municipality the power, not subject to re- view by the courts or by other higher authority, to permit or refuse to permit the carrying on of a business lawful in itself and not prohibited by legislation, is not to be sustained. It was said by Brown, J., in Austin V. Tennessee, 179 U. S. 343 : "Although it was held in Barbier V. Connolly, 113 U. S. 27, and Soon Hing v. Crowley, 113 U. S. 703, that a municipal ordinance prohibiting laundry work w^ithin certain territorial limits and within certain hours was purely a police regula- tion, such an ordinance was void, if it conferred upon the municipal authorities ai'bitrary power at their own will and without regard to dis- cretion in the legal sense of the term, to give or withhold consent as to persons or places without regard to the competency of the persons ap- pying, or the propriety of the place selected for carrying on business. "~' And see to the same effect Gundling v. Chicago, 177 U. S. 183 ; Plessy V. Ferguson, 163 U. S. 537, 550; Yick Wo v. Hopkins, 118 U. S. 356 ; Mayor & City Council of Baltimore v. Radecke, 49 Md. 217 ; Richmond v. Dudley, 129 Ind. 112; Money weight Scale Co. v. Mc- Bride, 199 Mass. 503, 514. The pursuit of a lawful business, not in itself harmful, though it may be regulated, is not, without legislative sanction, wholly to be stopped by municipal ordinances for the preven- tion of fire or for safeguard against some other apprehended danger. Belmont v. Neio England Brick Co., 190 Mass. 442; Covimonwea/th Ul- ^' M V. Rawson, 183 Mass. 491, 494; Belcher v. Farrar, 8 Allen, 325, 328; U^^^s-Ji^,^ <;><«/*-s>s-u«^-»_»>.. \J^/>jJl,/^.^Xk^ ^JL^^Lo'-^'f^ ^txl^ fi^^i-t-T-^t |-c< RAILROAD COMPANY V. RICHMOND. 277 Austin V. Murray, 16 Pick. 121, 12G; Commissioners of Northern Liberties v. Northern Liberties Gas Co., 12 Peuu. 8t. 318; Montgom- ery V. West, 9 L. R. A. (N. S.) 659, and note. And see Wineburgh Advertising Go. v. Murphy, 195 N. Y. 126. Accordingly, in our opinion, that partjof^. ^0, § 64, of the City Or- dinances of Clielsea whicli forbids the use of any building for the pick- lug^ so rting or storage of rags without a permit in writing from tlie chief of the fire department is invalid and void ; and the first and second instructions requested by the defendant should have been given. This conclusion makes it unnecessary to consider whether the evidence offered by the defendant should have been admitted, either to the court or to the jury. In accordance with the terms of the report a verdict of not guilty must be entered. _ So ordered. .^ -^ V ^^^^^ RAILROAD COMPANY v. RICHMOND. ■» .sr^ 1877. 96 U. S. 521. v.>^' The Richmond, Fredericksburg and Potomac Railroad Company maintained a line of railroad on Broad Street in Richmond. The city council thereafter passed an ordinance to the effect that no car, engine, carriage, or other vehicle of any kind belonging to or used by said road should be drawn or propelled by steam upon that part of their track on Broad Street east of Belvidere Street. This action was brought to re- cover a penalty for violation of the ordinance.^ Waite, C. J. ... It remains only to consider whether the ordinance complained of is a legitimate exercise of the power of a city govern- ment. It certainly comes within the express authority conferred by the amendment to the city charter adopted in 1870 ; and that, in our opinion, is no more than existed by implication before. The power to govern implies the power to ordain and establish suitable police regu- lations ; and that, it has often been decided, auth orizes municipal cor- porations to prohibit the use of locomotives in the public streets, wlien such action does not interfere with vested rights. Donnaher v. The State, 8 Smed. & M. Miss. 649 ; Whitson v. The City of Franklin, 34 lud. 392. Such prohibitions clearly rest upon the maxim sic utere tuo ut alienum "p^^^r^ i non Icedas, which lies at the foundation of the police power ; and it was 1^ , ^ not seriously contended upon the argument that they did not come within the legitimate scope of municipal government, in the absence of 1 This short statement is substituted for that of the Reporter. Arguments and part of the opinion are omitted. — Ed. , 278 DUFFIELD V. WILLIAMSPORT SCHOOL DISTRICT. 1^ ,«r>^ legislative restriction upon the powers of the municipality to that effect. It is not for us to determine in this case whether the power has been judiciously exercised. Our duty is at an end if we find that it exists. The judgment of the cou rt below is final as to the ^fi gjgifiJiL ^bleness of the action of the council. ... Affirmed. wV iJr-' >^ DUFFIELD V. WILLIAMSPORT SCHOOL DISTRICT. ^jjj.^.,tfi;vv< 1894. 162 Pa. 476. 1,^^ "^ *^ Williams, J.^ The plaintiff seeks to compel by a writ of mandamus IV^j-^a the admission of his minor son to the common school of the city of -— t (j, Williamsport. The board of school directors admits that the child is of proper age, is in good health, and possesses the qualifications that are enumerated in the general school laws as those that entitle him to admission. They allege however that he is excluded because of non- compliance with a regulation adopted in the exercise of a proper mea.- sure of care for the'pulSTic health. The facts appearing in the answer aTe' substantially as follows : First. That the city of Williamsport provided by an ordinance adopted in 1872 and still in full force that no pupil " shall be permitted to attend any jjublic or jirivaj:;^ school in said city without a certificate of a practicing physician that such pupil has been subjected to the pro- cess of v accination ." Second. That smallpox now exists in Williams- port and " is and has been epidemic in many near by cities and towns," Third. That in view of this situation the attention of the school board was drawn to the subject by a communication from the board of health requesting them to take action " to the effect tliat no pupil shall attend the schools of this city except they be vaccinated or furnish a certifi- cate from a physician that such vaccination has been performed." Fourtli. That upon considering this communication "and from the general alarm prevailing in the city over the report that a case of smallpox was in the city " they adopted a resolution in conformity with the recommendation of the board of health. Fifth. That this resolution is not enforced against those not at present in a condition to undergo vaccination ; and as to those unable to bear the expense, the board provide vaccination without charge. Tlie plaintiff demurred to this answer, and the questions thus raised are over th e po werj ofjLh£_sjchaQL.bQard ..to adopt reasonabfej^e aith reg- -^ ulations for the benefit of their pupils and the general public, and ^ over the reasonableness of the particular regulation complained of in this case. It should be borne in mind that there is no effort to compel vaccination. The school board do not claim that they can compel the plaintiff to vaccinate his son. They claim only the right to exclude 1 Arguments omitted. — Ed. , DUFFIELD V. WILLIAMSPORT SCHOOL DISTRICT. 279 from the schools those who do not comply with such regulations of the city and the board of directors as have been thought necessary to pre- serve the public health. It would not be doubted that the director would have the right to close the schools temporarily during the preva- lence of any serious disease of an infectious or contagious character This would be a refusal of admission to all the children of the district. They might limit the exclusion to children from infected neighborhoods, or families in which one or more of the members was suffering from the disease. For the same reaso n they niay excUide sucjh^chi^tlren^s decline to comply with requirements looking to prevention of the spread of contagion, provided these requirements are not posTtiVely unreasonable in their character. is the regulation now under consideration a reasonable one? That is to be judged of in the first instance by the city authorities and the school board. It^is only in the case of an abuse of discretionary pow- ers that the court will undertake to supervise official discretion. Vac- cination may be, or may not be, a preventive of smallpox. That is a question about which medical men differ and which the law affords no means of determining in a summary manner. A decided majority of the medical profession believe in its efficacy. The municipal regula- tions of many, and 1 have no doubt of most, of the cities of this state and country, provide for it. Iu_the present state of medical knowledge and public opinion upon this subject it w'ould be impossible for a court to deny that there is reason for believing in the importance of vaccina- tion as a means of protection from the scourge of smallpox. The question is not one of science in a case like the present. We are not required to determine judicially whether the public belief in the effi- cacy of vaccination is absolutely right or not. We are to consider what is reasonable in view of the present state of medical knowledge and the concurring opinions of the various boards and officers charged with the care of the public health. The answers of the city and the school board show the belief of the proper authorities to be that a proper re- gard for the public health and for the children in the public schools, requires the adoption of the regulation complained of. They are doing, in the utmost good faith, what they believe it is their dut}' to do ; and though the plaintiff might be able to demonstrate by the highest scien- tific tests that they are mistaken in this respect, that would not be enough. It is not an error in judgment, or a mistake upon some ab- struse question of medical science, but an abuse of discretionary power, that justifies the courts in interfering with the conduct of the school board or setting aside its action. It is conceded that the board might rightfully exclude the plaintiff's son if he was actually sick with, or was just recovering from, the smallpox. Though he might not be affected by it, j^t if another member of the same family was, the right to exclude him, notwithstanding he might be in perfect health, would lie conceded. How far shall this right to exclude one for the good of many be carried ? That is a question addressed to the official discre- ^ 280 STATE V. JOHNSON. tion of the proper officers ; and when that discretion is honestly and impai'tially exercised the courts will not interfere. The learned judge of the court below reached a correct conclusion in this case, and his decree is now affirmed at the cost of the appellant. \\ STATE V. JOHNSON. yOJ^^*-^ ^Z-^f^^-^^^^^V^- 1894. 114iV.C.846. U^^M^^^ Criminal action, tried before Boykin, J., at spring term, 1893, of ^2-4^^L -^<-vn>X-, — Ajifi^c^rv.^ ^ 1 '^is^ STATE V. JOHNSON. 281 Avery. J. Municipal corporations are the creatures of the Legisla- ture, and their powers may be curtailed, enlarged or withdrawn at the will of the creator, whose control over them is limited only by the re- striction that no statute will be enforced which impairs the obligation of a contract, interferes with vested rights, or is in conflict with any q provision of the organic law of the State or nation. It is too wel iV^*^"*^ settled to recapitulate, or even justify discussion, that towns certainly \^v?cl - . by virtue of an express grant of authority to do so, and according to W-* — . Slj "most^ authorities by implication arising out of tlie general welfare clause, If tbere is no general law to. the contrary, are em[)o\vered to "prescribe"^ fire limit and forbid the erection of wooden buildings within] such b ounds as they may by ordinance prescribe. 15 Am. and Kng. Enc, 1170; 1 Dillon Mun. Corp., section 405; Horr & Bemis Mun. Ord., section 222; Keilinger v. BickeU 117 Pa. St. 326. The weight of au- thority seems to be also in favor of the proposition that the Legislature has the power to prevent the erection of wooden buildings in such cor- porations, or to delegate to the municipalities the authority to do so, even where the enforcement of the law or ordinance causes a suspen- sion of work in the erection of structures of this kind by persons who are carrying out contracts for their erection made previously with the owners of the land. Cordon v. Miller^ 11 Mich. 581 ; Ex parte FisJce^ 17 Cal. 125. Persons, in contemplation of law, contract w-ith reference I Q tw:j to the existence and possible exercise of this authority when it is vested i' ci^.J^v>-Ji,^ 284 NORFOLK V. FLYNN. I^J»V-n-iiff 3^ dairy herds within the city limits. It is a matter of common knowledge that much of the milk sold in a city is produced in dairies situated out- side the city limits. Any police regulations that did not provide means for insuring the~~wEblesomeness of milk thus brought into the city for sale and consumption would furnish very inadequate protection toThe lives and health of its citizens. It is also a matter of common knowledge, as well as of proof in this case, that the wholesomeness of milk cannot always be determined by an examination of the milk itself. To determine it does or does not contain germs of any contagious or infectious disease, it is necessary to inspect the animals which pro- duce it. The inspection of dairies or dairy herds outside the city limits, provided for by this ordinance, applies only to those whose milk product it is proposed to sell in the city. The provisions of the ordinance in that regard go only so far as it is reasonably necessary to prevent the milk of diseased cows being sold within the city. This inspection is wholly voluntary on the part of the owner of the dairy or dairy herd. If he does not choose to submit to such inspection, the result merely is that he or the one to whom he furnishes milk cannot obtain a license to sell milk within the city. The ordinance has no extra-territorial operation, and there has been no attempt to give it any such effect. The only subject upon which it operates is the sale of milk within the city." We do not think that there is any merit in the first contention. The city of Norfolk has no power to impose any tax, fine, or penalty on persons selling their own farm and domestic products in contraven- tion of the Act of Assembly of March, 1896, already quoted. The ordinance of the city under consideration does not, in our judgment K '> ^ levy a tax or impose a fine or penalty within the purview of that act. ^,, W>n*>^ We are of opinion that it was not the purpose of the Legislature in ''^;^ilS j that act to impose any restriction upon the city in the exercise of the ^^ w^' {<{' [^ police power delegated to it for the protection of the health of its o^i citizens; and, unless plainly required so to do, we should be indis- '((^^^^ iposed to adopt a construction which would render the city powerless to protect the health of its citizens from the sale of impure or adulter- ated milk. The means adopted seem to us to be reasonable. It was necessary to the end in view that there should be an inspector, that he should have the power to take samples of the milk and have them analyzed, and his duties involved expenses which it was proper that V^ \ those engaged^ in the sale of milk should bear. A license from the ^'^^^^ inspector was evidence to the community that they could with safety purchase milk from the dealer to whom it was issued. He who is licensed should not complain, because he derives a direct and impor- ^ tant benefit from it, from which he is required to pay a reasonable compensation. The dealer discovered in improper practices in the effort to foist upon the community milk unfit for use has no right to complain if he has been detected in such practices. What the dealers are required to pay by the ordinance is not for purposes of revenue, v ^t^ NORFOLK V. FLYNN. 285 ax, but is an inspectioa fee, designed as a compensation t i_. ' e rendered. | ^ and is not a tax, for the service I'lie bupfeme''Court'ortlie United States is jealous to guard against . c; any encroachment by the States upon the power of the Federal Gov- I /.^ ernmeut to regulate commerce, yet it has been held that fees for the ^ '^" sanitary examination of vessels under the quarantine laws of the States, though they may in some degree tend to regulate commerce with foreign nations and among the States, are a valid exercise of the police power. In Morgan Railroad Co. v. Board of Health of Louisiana, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237, the court, after discussing the quarantine laws of the State of Louisiana and their various charges for services rendered incident thereto, in answer to the claim that the sums thus exacted were in effect a tonnage tax, forbidden by the Con- stitution of the United States, and exclusively within the power of i^ Congress to regulate, said: "In the present case we are of opinion Ua-^-o-^^ that the fee complained of is not a tonnage tax ; that, in fact, it is not • -^-H^ a ' tax,' within the true meaning of that word as used in the Constitu- '^vs-^ ^ tion, but is a compensation for a service rendered, as part of the quarantine system of all countries, to the vessel, which receives the certificate that declares it free from further quarantine requirements." Paraphrasing the language of the court in that case, the city of Norfolk says to the dealer : If you appear free from objection, you are relieved by the officer's certificate of all responsibility on that sub- ject. For this examination you must pay. The danger comes from you, and, though it may turn out in your case there is no danger, yet, as you belong to a class from which this kind of injury comes, you must pay for the examination which distinguishes you from others of that class. We are of opinion that the ordinance under investigation does not, and was not designed to, act beyond the limits of the city of Norfolk, but operates only upon those who undertake to sell milk within the ^ jurisdiction of the city. \Ve are of opinion that it is a reasonable exercise of the police power, and that the charges which it imposes are in no sense a tax, penalty, or fine, but fees for services rendered ; and it is therefore not repugnant to the Act of Assembly relied upon by defendant in error. The judgment of the Circuit Court must be reversed, and this court will enter such judgment as the Circuit Court should have entered. Reversed. 'iwj-A V^ ^ >w /vA^ JUvUk 286 PENNSYLVANIA RAILROAD COMPANY S CASE. >-'" t PENNSYLVANIA RAILROAD COMPANY'S CASE. ^^'-^ " ^ 1906. 213 Pa. 373. ^'^i^'^'^C^^ ^ Brown, J. The question raised on this appeal is as to the power of the borough of North Braddock to pass an ordinance approved April 7, 1904, entitled "Ordinance No. 133, requiring The Pennsylvania Rail- road Company to erect and maintain and operate safety gates at the point where the tracks of said railroad company cross Fourth street in the borough of North Braddock and imposing a penalty for any failure to comply with the provisions hereof." By the first section of the or- dinance the appellant is required within sixty days from its approval to erect, ma intain and operate safety «4c^^fr>^ i^ L 288 PENNSYLVANIA EAILKOAD COMPANY'S CASE. so at its own expense. It has undoubted power to do the former if it will, but, to do the latter through the ordinance which it has passed, authority to enact the same must appear. Thg use of the street incross^^ ing it is a public use of it by the railroad company having a legislative righrio so use it on an equality with any natural person, except as such right may be limited in the grant of it, and the attempted interference with this right must fail, unless the boroug h can point to it s power to ^oTinterfere, expressly or impliedly existing.. Among the express powers conferred upon boroughs by the act of 1851, the one sought to be exercised here does not appear. By the first clause of the second section of that act borough authorities are empow- ered generally ''to make such laws, ordinances, by-laws and regula- tions, not inconsistent with the laws of this commonwealth, as they shall deem necessary for the good order and government of the bo roug h." In the succeeding twenty-five clauses of the same secHon" are found the powers expressly conferred, but the power to pass this ordinance is not one of them. In Borough of Millerstown v. Bell et al., 123 Pa. 151, this court, through Paxson, J., said: " The general pow- ers referred to in the first section must be confined to the particular subjects referred to in the succeeding sections." Without now commit- ting ourselves to this, it is clear that tlie good order^and government of a borough, referred to in the first clause, are not involved in the or- dinance. The good order of a borough can be preserved and it can be AT^. ^' ^ ^ ' \h^ properly governed, no matter how many railroads cross its streets by } Aa)JH^^-<. legislative permission, and no matter how fast cars maj' run over them. A>uvyvw^We assume this is the clause designated by the Superior Court as the J^fjJ^*^' general welfare clause" — "broad enough," in the opinion of that court, "to cover the municipal legislation complained of." For the reason just given we cannot concur in this. The case of Commonwealth v. Philadelphia^ Harrishurg & Pittsburg Railroad Co., 23 Pa. Superior Ct. 205, was relied upon by the Superior Court as authority to sustain the action of the lower court. In that case the Superior Court held that the three following cases were author- ity for the power of a borough to pass such an ordinance as is now under consideration : Penna. B. R. Co. v. Duq^iesne Borough, 46 Pa. 223 ; Township of Newlin v. Davis, 77 Pa. 317, and Pennsylvania Rail- road Co. V. Irwin, 85 Pa. 336. An examination of these cases does not justify reference to them as authority for the power claimed by the appellee. In the first, the railroad company, which had become the owner of the canal, succeeded to the duty of maintaining a bridge over it. Having failed to perform that duty, it was held that the borough authorities, as the proper public officers to look after the pul)lic highways, had the right to repair the bridge and to recover the expense of doing so from the railroad company. In the second, the action was against a township for injuries resulting from a defective bridge. All that was decided was that it was the duty of the township to properly maintain it. In the third, the railroad company changed the location of a public WINEBUKGH V, MURPHY. 289 road, necessitating the building of a bridge, and it was simply decided that, the company having failed to rebuild and repair the bridge, the township could recover the cost of doing so from the company. A fourth case cited by the Superior Court, in Comriiomvealth v. Philadel- phia, Harrisburg & Pittsburg Railroad Co., is Pennsylvania Co. v. Watson^ 81* Pa. 293. The reference was intended to be to another case reported in the same volume — Pen?isijlvania Co. v. James, 81 * Pa. 194 — in which there appears the language quoted in the opinion of the Su. perior Court as to the police powers of boroughs. But, turning to the charge of the court below, as found on page 198, it appears that power had been conferred by the legislature to pass the ordinance which was under consideration. The legislature might, of course, have done so \ here, but it has not. By the Act of March 7, 1901, P. L. 20, cities of the second class are authorized to enact ordinances requiring the erection of safety gates and the placing of flagmen at the intersection of raili*oads with public streets, and by the Act of May 23, 1889, P. L. 277, the same authority is conferred upon cities of the third class. As a borough of North Braddock had no power to pass the ordinance complained of it is declared to be invalid, and the order of the Superior Court, affirming the order of the court below sustaining it, is reversed, the costs below and on both appeals to be paid by the appellee. WINEBURGH v. MURPHY. 195 N. Y. 126. ;hase, J. The relator is a domestic corporation engaged in the rj-,^^,^^ business of constructing and maintaining advertising signs and display- t^^J^^Ij, ing thereon advertisements pursuant to contracts with advertisers. . S^ On June 15, 1908, the relator duly filed an application for a permit ^xto erect a sky sign on the top of a building at 27 East Twentj^-second ^* ^-^^^ street, in the city of New York, and such application was accompanied'%>.>-^-«-«-5 by a plan thereof in detail, and also with the consent of the owner of /\j>srf\ < the real property on which it was proposed to erect the sign. From such application and the accompanying papers it appears that the build- ing upon which it is proposed to erect the sign is an office building ten Stories in height, and that it is proposed to erect the sign in compliance j^fS^^'"^^ with the ordinances-and regulations of the city of New York except that ^ e the proposed signals more t han ni ne fe et in he ight above the front waTT or cornice of the buildin g. The propos ed sig^n w.ould be five feet six inclies ab'ove the roof and the top thereof would be twenty feet six inches above said front wall_(.)r cornice. It is proposed to erect saicT sigiTTT?^ tween forty and fifty feet back from the building line on^ Twenty- Second street and to face it northwest and substantially in the direction 290 WINEBUKGH V. MUEPHY. vX- ^ of the rear of the building. It is intended for the display of advertise- ments to be seen from points in the city northwest of said building. The defendant refused to approve the specifications, plans and appli- cation or to issue a permit for the erection of said sign, solely because of an ordinance of said city limiting the height of sky signs to nine feet above the front wall or cornice of the building on which it is to be erected. The application was then made for a peremptory writ of mandam us to compel the issuing of such permit. The motion being denied an appeal was taken to the Appellate Division where the order was not only reversed but a writ was gTauted commanding the defend- ant "to examine the plan and application filed by the relator and de- scribed in its petition with reference to the material to be used and the method of construction thereof and as to the safety thereof, and if he shall find that the said structure is to be built of proper materials and in a proper manner and that the proposed structure is safe and secui'e, then to approve said application and issue a permit thereon." The consent of the owner of said real property is based upon a sub- stantial consideration paid to her therefor and the relator has entered into a contract with an advertiser for the use of such sign, th.e con- sideration for which is also a substantial sum. It is not open to controversy that if the relator is not allowed to erect and maintain such sign the owner of said building and the relator as her lessee is deprived of some rights in the beneficial use and free en- joyment of private property v/ithout direct compensation. - The ordinance of the city of New York to be construed on this ap- peal defines a sky sign and as so defined it is: "Anyietter, word, model, sign, device or representation in the nature of an advertisement, an- nouncement or direction supported or attached, wholly or in part over or above any wall, building or structure shall be deemed to be a 'sky SIO'U 5 » .> The ordinance (section 144 of the Building Code of the city of New York) also provides as follows: "Sky signs shall be constructed en- tirely of metal, including the uprights, supports and braces for same, and shall not be at any point over nine feet above the front wall or :ornice of the building or structure to which they are attached or by ivhich they are sup}X)rted. All fences, signs, billboards and sky signs shall be erected entirely within the building line and be properly secured, supported and braced and shall be so constructed as not to be or become dangerous. Before the erection of any fence, sign, billboard or sky sign shall have been commenced a permit (for) the^erectjon of the same shall be obtained from the Superintendent of Buildings having jurisdiction as provided in part 2, section 4 of this Code. Each application for the erection of any fence, sign, billboard or sky sign shall be accompanied by a writ- ten consent of the owner or owners or the lessee or lessees of the prop- erty upon which it is to be erected." It is uot the erection over and above any wall, building or structure WINEBURGII V. MURPHY. 291 that is prohibited, but the thing constructed phis the letter, word, model, sign, device or representation in the nature of an advertisement, announcement or du'ection painted or pasted thereon or attached thereto. So far as appears there is no absoUite limitation upon the height that \ tanks, towers or chimnej's can be erected, nor as to flagpoles, balus- trades, finials or other structures ornamental or useful. If it appeared in the relator's application that the structure proposed to be erected was not for the purpose of advertising, but for any other purpose, fancy or whim, it would not come within the prohibitive clause of the ordinance. A further examination of the ordinance shows that it relates wholly to erections within the building line and upon private property. It is in no way affected by the rules of law relating to street or municipal prop- erty. As private property the owner of the building on which it is proposed to erect the structure can use it in any way that to her may seem desirable, except as such use is subject to the implied obligation resting upon every owner of property to use it so as not to interfere with the rights of others, and also subject to such restrictions as are necessary for the public welfare. The police power, so difficult to define, but so frequently invoked, is conllueci to such reason able restrictions and prohilntious as are iieces- sary to guard public health, morals and safety, and to conserve public peace. order and the seueral welfare. Regulations and ordinances within such general definition are valid. The city may make and en- force such regulations and ordinances, althougli they interfere with and restrict the use of private property. Compensation for such in- terference with and restriction in the use of property is found in the share that the owner enjoys in the common benefit secured to all. Does the ordinance, so far as it relates to sky signs, come within the police power, or is its purpose simply to prevent or restrict a lawful business which it is alleged has been extended until it has become of- fensive to good taste ? It is not asserted by the city that a sky sign, as defined, in the ordinance or as proposed by the relator, has any relation whatever to or effect upon public health or public morals. The only alleged reason for the passage and enforcement of the ordinance is that a structure upon which advertisements are to be placed constitutes a danger by reason of the possibilit}' of its falling into a public street. The dan- ger, so far as it interferes with firemen in passing over the roof of a building, is apparently avoided in the case now before us by the pro- vision that the structure on which the sign is to be erected will have a clear space of five feet and six inches between the roof and the bottom of the proposed structure. A structure nine feet in height would seem to be as great an interference with firemen in passing over the roof as one erected at a greater height. An ordinan ce drawn to protect the public from physical danger should in terms bear some evidence of such purpose. So far as the \. Cv\^ 292 WIXEBUEGH V. MURPHY. c«^ t«r''^ •.;^ -nZ-^ ordinance in question relates to sky signs, it is general in its terms and it is as prohibitive in remote parts of the city as in the congested parts thereof, and to a structure erected at a safe distance from any street or public place as one erected upon the front wall or cornice of a build- ing situated upon the building line of a public way. The prohibited height is also based upon an arbitrary ir.easurement above the front •wall or cornice of the building, notwithstanding the height of the build- ing at the place where it is proposed to erect the structure may be much less or more than at such front wall or cornice of the buildino;. The prohibition is, therefore, not dependent upon the dangerous loca- £ion_of the structure nor is it based upon the height or safety of the* particular thing constructed. "~ But the more serious objection to the ordinance is in the fact that the absolute prohibition is confined wholly to sky signs as they are defined therein. The physical danger to the public does not arise from the advertisements. The advertisement, announcement or direc- tion bears no relation to the safety of the structure itself. It is not the structure, therefore, that is prohibited. Would a structure of any description be more dangerous if it bore the words "Omega Oil?" Could a city enact and enforce an ordinance limiting the height of all buildings therein which are painted a particular color and leave unre- stricted the height to which a building could be erected so long as it was unpainted or painted a color other than the particular one speci- fied ? Such an ordinance would bear evidence in itself that it was not enacted for any purpose within the police power. It appears from the ordinance in question that it was not enacted in the interest of public health, morals or safety or to conserve public peace, order and general welfare, and the ordinance so far as it relates to sky signs is arbitrary and unauthorized. This court in C% of Rochester v. West, 164 N. Y. 510, sustained an ordinance forbidding the erection of billboards more than six feet in height ivithout the consent of the common council. The court, re- ferring to the charter of the city, say: "We think this statute con- ferred upon the common council of the city authority to regulate boards erected for the purpose of bill posting, so far, at least, as such regula- ion was necessary to the safety or welfare of the inhabitants of the city, or persons passing along its streets. ... It is obvious that its purpose was to allow the common council to provide for the welfare and safety of the community in the municipality to which it applied. If the defendant's authority to erect billboards was wholly unlimited as to height and dimensions, they might readily become a constant and continuing danger to the lives and persons of those who should pass along the street in proximity to them." (p. 513.) In Commontvealth v. Boston Advertising Company, 188 Mass. 348, the court held invalid an ordinance or regulation relating to signs, posters or advertisements, and say: " The plain and intended purpose of the rule is to prohibit the use of land near public parks and park- WINEBURGH V. MURniY. 293 ways for advertising Rules intended to prohibit advertisements of indecent or immoral tendencies, or signs dangerous to the physical safety of the public, no doul^t would be reasonable within the meaning of the statute and valid. We think the case of Rochester v. West., 164 N. Y. 510, was decided and can rest only on this ground." We quote from the head note in Bryan v. City of Chester, 212 Penn. 259, which fairly states the holding of the court as stated in the opinion as follows: "A municipality has no power to enact an ordi- nance forbidding citizens to erect billboards on tlieir own property merely because such boards are unsightly or may c reate a nuisance. Any citizen against whom such an ordinance is sought to be enforced is entitled to the protection of a court of equity. Under the police powers of a municipality it may prohibit the erection of insecure bill- boards within its limits, prevent the exhibition from secure ones of immoral or indecent advertisements or pictures, and protect the com- munity from any actual nuisance resulting from the use of them, but it can go no further. All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safetj', health, or comfort of the public, but a limitation without reason or necessity cannot be enforced." In Crawford V. City of Topeka, 51 Kan. 756, the court, construing yi-^-^ an ordinance that provided that no billboard or structure for advertis- c^.^c^^ ing purposes should be erected unless at a certain distance from the line of the street, say: "The unreasonableness of the ordinance in question is easily seen when it is considered that the mere posting of a harmless paper upon a structure changes it from a lawful to an unlaw- ful one. A person may erect a fence around his lot without violating the ordinance ; but just as soon as an advertisement is posted or painted thereon it is brought within the condemnation of the ordinance, and the owner is liable to prosecution and punishment." In Bill Posting Sign Company v. Atlantic City, 71 N. J. Law, 72, the court held that an ordinance forbidding the erection of signs upon private property in Atlantic City without regard to whether such signs may be dangerous to public safety is invalid, and in the opinion the court say: " The recognition of a power so wide would bestow upon the lawmaker the right to invest cities with authority to control the size and style of buildings which should be erected upon private prop- erty where the public safety was in no wise involved." In City of Passaic v. Patterson Bill Posting Adcertising & Sign Painting Company, 72 N. J. Law, 285, the court, referring to an ordinance, say : "The very fact that this ordinance is directed against signs and billboards only, and not against fences, indicates that some consideration other than the public safety led to its passage. It is obvious from the face of the ordinance that the object of the first sec- tion was not to secure the public safety ; that section contains no reference to a dangerous condition of billboards, \^hile the second sec- tion expressly undertakes to deal with those that become dangerous. '^. ^rt ^^ :.h\ 2.94 WINEBURGH V. MUKPHY. . . . u3Esthetic considerations are a matter of luxury and indulgence rather^thau of necessity, and it is necessity alone wliich justifies tlie exei-- cise of tHe police pbwei^ to take private property without compensation." In City of Chicago v. Gunning System^ 214 111. 628, the court, ia condemning an ordinance prohibiting certain billboards, say: "The purpose . . . seems to be mainly sentimental, and to prevent sights which may be offensive to the esthetic sensibili ties of cer tain indi- viduals residing in or passing through the vicinity of the billboards." A municipality, in enacting ordinances relating to the safety of the public, may undoubtedly make reasonable classifications among struc- tures with reference to their location and the necessity or importance thereof without offending against the provisions of the fourteenth amendment of the Federal Constitution. The classification, as well as the ordinance itself, must be based upon some necessity justifying the exercise of the police power. It has been said that the police power of a municipality is allied to the right of self preservation in an indi- vidual. In exercising such power or right, the purpose thereof, and the limitations thereon, should not be forgotten. The classification of the sky sign by the ordinance in question is dependent upon the letter, word, model, sign, device or representation in the nature of an advertisement, announcement or direction and it has no direct relation to the safety of the public. An ordinance which purports to legislate for public safety must tend in some appreciable way to that end. Un- less there is a substantial connection between the assinned purpose of the ordinance and the end to be accomplished, such ordinance is un- inforceable. Matter of Jacobs, 98 N. Y. 98; People v. Orange Co. Road Cons. Co., 175 N. Y. 84; People v. Gillson, 109 N. Y. 389; Health Department v. Rector, etc., 145 N. Y. 32; People v. Ewer, 141 N. Y. 129 ; Fisher Co. v. Woods, 187 N. Y. 90. We think that the order of the Appellate Division was right, and that it should be affirmed, with costs. Haight, J. I concur for affirmance. The ordinances of the city of New York pertaining to the height and manner of construction of fences, signs or billboards, whether upon the ground or housetops, are for the protection of the public from in- jury, and consequently, if reasonable, are valid under the police powers which the legislature has delegated to the board of aldermen. The only difliculty I find with reference to the ordinance pertaining to sky signs is with regard to the definition given thereof in the ordinance. It is that "any letter, word, model, sign, device or representation in the nature of an advertisement, announcement or direction supported or attached, wholly or in part over or above any wall, building or struc- ture, shall be deemed a sky sign." If, therefore, the letter, word, model, sign or device is attached to any lawful structure upon the top of a building it would become a sky sign, and if over nine feet above the front wall or cornice of the building would come within the con- demnation of the ordinance. It is not the letter, word, model, sign ROCHESTER V. MACAULEY-FIEN MILLING CO. 295 or device that endangers the public safety, but it is the structure upon which such letter, word, model, sign or device is attached that may be - . dangerous. It would, therefore, be entirely proper and within the dtt^ police powers of the municipality, through its board of aldermen, to enact an ordinance limiting the construction of fences, signs or bill- boards, either upon the ground or the housetops, to those that are safe, i and to also designate the material and manner in which they shall bel constructed and to limit the size or height thereof witLiin reasonable! cy-v-'JKI bounds. ^ - v>e:^ — t^^^- - t^mu^ '^.j^X^ ROCHESTER v. MACAULEY-FIEN MILLING CO. 1910. 199 .V. Y. 207. The common council of the city of Rochester duly enacted an ordi- d^ nance regulating the emissiou of s moke from chimneys. . The defend- V ,'=^^' ''ant is a domestic corporation operating aiid conducting a flour mill in v^( ' said city. After the ordinance quoted became in force as a law of the ' ^ city, and on November 2, 1906, the defendant continuously between ^v>^k lO:16 A. M. and 11:15 A. M. suffered and permitted the escape of /ff^ smoke from a stationary smokestack on said flour mill, in violation of said ordinance. "^ This action was commenced in the Municipal Court of the city of Rochester to recover of the defendant twenty-five dollars, the penalty for such disobedience of said ordinance. Judgment was recovered against the defendant, which has been affirmed by the County Court of the county of ^Monroe and the Appellate Division of the Supreme Court in the fourth judicial department respectively on appeals to such courts and an appeal is taken by permission from the judgment of the said Appellate Division of the Supreme Court to this court. ^ • •••••••« Chase, J. At the time when this action was commenced Rochester was a city of the second class, governed by the Second Class Cities Law (Chapter 55 of the Laws of 1909), which, so far as we are now concerned, is a re-enactment of chapter 182 of the Laws of 1898. Said act of 1898 was in force when said ordinance was enacted. The com- mon council of the city is vested with legislative power by a provision v of the statute as follows: " The legislative power of the city is vested in the common council thereof, and it has authority to enact ordinances, not inconsistent with law, for the government of the city and the man-, agement of its business, forjhe preservation of good order, peace ami health, for the safety and welfare of its inhabitants and the protecti^ and se curityoTlKeir propeily. . . . (Second Class Cities Law, sec. 30 ; chap. 182, Laws^of 1898, sec. 12.) 1 Statement of facts abridged and arguments omitted. — Ed. 29G ROCHESTER V. MACAULEY-FIEN MILLING CO. -^ This court in People ex rel. Dunn v. Ham, 166 N. Y. 477, in con- struing the section from which we have quoted, said: "The evident purpose of that section was to confer upon the common council entire legislative authority as to matters relating to the municipal govern- ment, except as limited by that statute and others not inconsistent with its provisions. This is clearly indicated by the act itself, and was plainly avowed by the commission which reported it to the legislature. (Senate Documents, 1896, Vol. 5, No. 24.)" (p. 481.) ~ The common council is thus the judge as to what ordinances it will pass for the safety and welfare of the inhabitants of the city and the protection and security of their property, and unless an ordinance passed by it is wholly arbitrary and unreasonable jtshouldjDe iipheld._ The necessity and advisability of the ordinance is for the legislative power to determine. The presumption is in favor of the ordinance. {Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19.) This court, referring to the police power in People ex rel. Wine- burgh Adv. Co. V. Murphy 195 N. Y. 126, say: "The police power, so difficult to define, but so frequently invoked, is confined to such reasoHable restrictions and prohibitions as are necessary to guard pub- lic health, morals and safety, and to conserve public peace, order and the general welfare. Regulations and ordinances within such general definition are valid. The city may make and enforce such regulations and ordinances, although they interfere with and restrict the use of pri- vate property. Compensation for such interference with and restric- tion in the use of property is found in the share that the owner enjoys in the common benefit secured to all." (p. 131.) The emission of smoke from a chimney when it includes dust, soot and cinders to such an extent that it is rendered very dark or black must materially affect the purity of the atmosphere surrounding the place where it is so emitted. The pervading substances in the smoke necessarily darken its color in proportion with the amount thereof. As soon as the impelling force is removed such substances obey the law of gravity and fall upon the adjoining property. In a city or closely populated community where persons and property cannot be removed from the effects of the disagreeable contamination it not only pollutes the air that must be breathed, but it mars the appearance, destroys the cleanliness, and affects the value of the property within the circle upon which such substances from the smoke so fall. The extent of the injury is a matter to be established by evidence, to include all the facts and circumstances relating to it; although doubtless it is a matter of common knowledge of which the courts may take judicial notice that some injury must result from substance-laden smoke pervading tTie~ atmosphere in which persons and property necessarily remain. The Court of Appeals of the District of Columbia, referring to smoke as a nuisance, say: "Now, whilst the emission of the ordinary smoke from the chimneys of houses does not amount to a nuisance per se, it is nevertheless a matter of common knowledge, not to be ignored by ,]V-Nxrije A- KOCHESTER V. MACAULEY-FIEN MILLING CO. 297 the courts, that the emission of a volume of dense, black smoke from a single smokestack or chimney of a large furnace, may, under some cir- cumstances, work physical discomfort to tiie general public coming within its circle of distribution upon public thoroughfares, and may possibly also work injury to public interests in other respects. When- ever it may become a special source of legal injury to an individual he will have an action of damages therefor, and, in cases of continuation, equity will afiford complete relief by process of injunction." (Moses v. U. S., 16 App. Cas. D. C. 428; 50 L. R. A. 532.) The courts of this state have frequently exercised their restraining power against persons so using their property as to unreasonably inter- fere with the property and personal rights of others. [McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40; Pritchard v. Edison Elec. Ill Co., 179 N. Y. 364 ; Bbj v. Edison Elec. III. Co., 172 N. Y. 1 ; Gar- vey v. Long Island R. R. Co., 159 N. Y. 323; Morton v. Mayor, etc., qfX. Y., 140 N. Y. 207; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18; Coffsivell v. N. Y., N. H. & Hartford R. R. Co., 103 N. Y. 10 ; Canijibell v. Seamayi, 63 N. Y. 568 ; Yocum v. Hotel St. George Co., 18 Abb. [N. C] 340; Beir v. Cooke, 37 Hun, 38; Hutchinsx. Smith, 63 Barb. 251.) Ordinances relating to the emission of smoke have been enacted in nearly every city and village. There is a great difference in the smoke, dirt and soot-producing qualities of fuel and in the furnaces where consumed and in the manner of stoking the fires, and as the careless and unrestrained use of some fuels tends to produce and discharge into the atmosphere surrounding the places whei'e such fuels are so care- lessly used, dirt and soot-laden smoke that is disagreeable and injuri- ous, the production and discharge of such smoke is a proper subject for reasonable police regulation. If an ordinance so enacted is rea- sonable, it should be upheld, and if unreasonable, it should be declared j "^ inoperative and void. *^ ^, Jhe Municipal Court by the judgment rendered in this case has, in ''^''^ substan ce, found that the ordinance is reasonable and enforceable. Such judgment was affirmed by the County Court and it has been unanimously affirmed by the Appellate Division. As a questi on of " i^-^'-^-jP fact it is not open for our consideration. It is not unreasonable upon^ ^(5-c<^"t' its face or as a matter of law. The judgment should be affirmed, with " ft^^ costs. c-C''>-'»«^ CuLLEN, Ch. J., Gray, Haight, Vann, Werner and Willard Bart- LETT, JJ., concur. ■^ ., Judgment affirmed. / \ lA^J, v^ 298 \ VoV GODDARD. ^hL ^ ^ Section lY. — Power to Tax. -^f^ ' ^nttk^Tv^^ GODDARD, Petitioner. ^^--Ml^tsL^ 1835. 16 Pick. 504. ^-^X-l-^ ^'^'^■^■c^ Petition for a certiorari to the Municipal Court for the City m*"^ o Boston.^ , . ^^"V^A-, Shaw, C. J. No question is made of the facts in this case, but it /^ is conceded, that the petitioner did not clear the_side walk in fron t of ^ ^^ his land, in the maniier required by~the by-iaw of the city, and he ^/\ju Justifies this on the ground that the law itself is invalid and of nq ^ j t binding force. For the purpose of having this question deliberately ^^^ considered, and for the purpose of taking several exceptions to the course of proceedings, the petitioner has prayed for a writ of certiorari to the Municipal Court. Another, and perhaps the most important objection, is, that the by-law is one imposing a tax or duty upon the citizens, and it is a violation of the constitution in this, that it is partial, and unequal, and contravenes that fundamental maxim of our social system, that all burdens and taxes laid on the people for the public good shall be equal. But the Court are all of opinion, that the by-law in question is not obnoxious to this objection. It is not speaking strictly, to characterize this city ordinance as a law levying a tax, the direct or principal object of which is, the raising of revenue. It imposes a duty upon a large class of persons, the ^ n~jj^ performance of which requires some labor and expense, nnd theiefore V-^ ■ I indirectly operates as a law creating a burden. But we think it is tjC^^ — * »| rather to be regarded as a police regulation, requiring a duty to be Zo^ I performed, highly salutory and advantageous to the citizen s^^j a " ' ' populous and closely built city, and which is imposed upon them Keoause they are so situated as that they can most promptly and' conveniently perform it, and it is laid, not upon a few, but upon a jpumerous class, all those who are_so situated, and equally upon all' who are within the description composing the class. It is said to be unequal, because it singles out a particular class of citizens, to wit, the owners and occupiers of real estate, and imposes the duty exclusively upon them. If this were an arbiti'ary selection of a class of citizens, without , reference to their peculiar fitness and ability to perform the duty, tlie 3^>f~*^ % objection would have great weight, as for instance, if the expense of ^^-(jvs^* clearing the streets of snow were imposed upon the mechanics, or merchants, or any other distinct class of citizens, between whose 1 Statement of facts, arguments, and part of opinion omitted. — Ed. GODDAP.D. 299 convenience and accommodation, and the labor to be done, there is no natural relation. But auppose there is a class of citizens who will themselves commonly derive a benefit from the performance of some pu bli cI^Ty," we" call see no inequality iu requiring tliat all those who i\ AVs^I will de rive such benefit, shall by a general and equal law be required to do i t^ .Supposing a by-law should require every inhabitant, who , . keeps a cart, truck or other team, or a coach or other carriage, to turn \ S'**~^ ^^-'^ i\ out himself or send a man, with one or more horses, after each heavy fall of snow, to assist in levelling it. Although other citizens would derive a benefit, yet as these derive some peculiar benefit, accom- panied with the ability, I can at present perceive no valid objection to a by-law requiring it, on the ground of inequality. Supposing a general regulation, that at certain seasons of the year, every shop- keeper should sprinkle the side walk in front of his own shop, or sweep it, inasmuch as he has a peculiar benefit, and as the duty is equal upon all who come witliin the description, it seems to us to be equal, in the sense in which the law requires all such burdens to be equal. And it appears to us that the case before us is similar. Although the side walk is part of the public street, and the public have an easement in it, yet the adja ceiit occupant often is tlic owner! of the_fee, and geuerallj' has some peculiar interest in it, and benefit from it. distinct from that which he enjoj^s in common with the rest of fliecoj nin unity. He has this interest and benefit, often in accommo- dating his cellar-door and steps, a passage for fuel, and the passage to and from his own house to the street. To some purposes therefore it ^ju...^3^vlo^.^'ij is denominated his side walk. For his own accommodation, he would . have an interest in clearing the snow from his own door. The owners and occupiers of house-lots and other real estate, therefore, have an interest in the performance of this duty, peculiar and somewhat distinct from that of the rest of the community. Besides, from their situation, they have power and ability to perform this duty, with the promptness which the benefit of the community requires, and the duty is divided, distributed and apportioned upon so large a number, that it can be done promptly and effectually, and without imposing a very severe burden upon any one. Supposing a by-law should require, what is often done, in practice, that upon an ^ . alarm of fire in the night, all householders, on streets leading to andi^^-tx-C^ js^ near the fire, should exhibit a light. This would seem to be reason-/ iv'>M*-*v^**' able. Or that aHlthe owners or occupiers of dwelling houses, having). | ^ ^ "5^ a well and pump, should keep them in repair at their own expense, to 1 / ^j Sjb^s^,^ " be used in case of fire. It would operate partidly, but it seems to us not unequal, in the sense in Avhich we are using that term. The cit}' might keep persons ready iu every street, to light torches and flam- beaux in case of fire, and the expense be paid from the treasury ; still it appears to me, that as householders would derive a benefit from the operation of this general regulation, as their local situation puts it peculiarly within their power and ability to perform it without great 'v^'-r- s tx^^t x—c^ _ J t 4fl>^,Uw ^V,-.^ . IT- '^w- fVw^ V -C'-V-. /^^^SlI^ ^^^^-^MTv, ^ "^^^ 300 CHICAGO GENERAL RAILWAY COMPANY V. CHICAGO. expense, and as it is equal in its terms, it would not be obnoxious to the charge of being invalid for partiality and inequality. In all these cases the answer to the objection of partiality and in- equality is, that the duty required is a duty upon the person in respect to the property which he holds, occupies and enjoys, under the pro- tection and benefit of the laws, that it operates upon each and all in their turns, as they become owners or occupiers of such estates, and it ceases to be required of them, when they cease to be thus holders and occupiers of the estate, in respect to which the duty is required. In this respect it is like a land tax, or house tax, it does not bear upon owners of personal property, and therefore does not bear upon all rw^ ' citizens alilie, but is not on that account unequal or partial, in the ■^ ' ySl \ sense contemplated by the Declaration of Rights, requiring all taxes , ^ ''^->* I and burdens to be equal and impartial. ^^^^^^^/■Qcy^ ' The Court are all of opinion, that as a by-law, the regulation in question was a reasonable one, that it was not repugnant to the con- stitution or laws of the Commonwealth, and that the conviction was right. Ni ^ ^ ' Petition dismissed.^ CHICAGO GENERAL RAILWAY COMPANY v. CHICAGO, ijj^ 1898. 176 Z//. 253. V^ Wa-^ j---.Ul^ ^^ "V "Wilkin, J. This is an action of debt brought by the city of Chicago, "^ \ against plaintiff in error, to recover damages on its bond in the sum of ,j^ $25,000. Damages were assessed at $2250, and judgment rendered for that amount and costs, from which plaintiff in error prosecutes ^^ this writ. sA The facts in the case are uncontroverted. In February, 1892, the p city passed an ordinance granting to plaintiff in error authority to ^^' construct, maintain and operate a street railway on Twenty-second fi^tL. and other streets in the city, upon certain terms and conditions, among Q which was the following : • '^ ^ f k,vvV^ '^ "Sec. 8. Per mile tax. — The rights, privileges and franchises , I -fjierein conferred are granted upon the further condition and consider- ' ^'^ ation that on or after December 1, 1895, the said company or their .i. v^ '7^yiA'^A>-^egal assigns, or any person, firm, company or corporation in any way '^^ claiming under or through them, or operating the road herein author- ized, shall pay into the city treasury of the city of Chicago, annually, F^ for each and every lineal mile of their track laid under the provisions ]j\ . of this ordinance, and a proportionate amount of any fraction of a i ^ mile laid as herein authorized, the sum of five hundred dollars ($500,) " etc. J- ^ M ^ » See Doughten v. Camden, 72 N. J. L. 451, 63 Atl. 170, 11 Am. St. Rep. 680. v-^*^\: CHICAGO GENERAL RAILWAY COMPANY V. CHICAGO. 301 Section 11 required the company to give bond in the sum of $2;'5,000,'^>4,Kkft.;, section 1 of article 5 of the City and Village act (then in force) gave '~~^^' the city power " to permit, regulate or prohibit the locating, construct- ing or laj'ing a track of any horse railroad in any street, allc}' or public place ; but such permission shall not be for a longer time than twenty years." (Rev. Stat, p. 219.) Section 3 of the Horse and Dummy act provides that no company shall have the right to construct its road along any street or alley, etc., without the consent of the corporate authorities of such city, and that " such consent may be granted for any period not longer than twenty years, on the petition of the com- pany, upon such terms and conditions, not inconsistent with the provi- sions of tni^ act, as such corporate authorities or county board, as the case may be, s hall d eem for the best interes t of the public." Rev. Stat., p. 571. It is not denied that the city had the power to impose a money con- dition as a license fee^ or to protect it against liabilities and expenses occasioned by reason of the construction of the railroad in its streets, or for expenses and the like of defendant in error, but it is earnestly insisted that this ordinance shows an unlawful attempt on the part of the municipality to sell its license, and that it is also an unauthorized attempt to raise revenue for the purposes of municipal government ; also, that, because the ordinance contains other terms and conditions for the protection of the city against loss or disbursements, such as al license fee of SoO per annum for each car operated, there is no room for the presumption that the condition for the payment of this amount ^-^^""^ per mile was with a view to such purposes. We are unable to agree with counsel in these contentions. It was clearly within the power of the council, by its ordinance, to make this additional condition if it so desired, and the courts cannot indulge the presumption that the act was done for ail Illegal purpose, it being apparent that it could be done legaTTyr' Tt is not claimed the condition is unreasonable or against public policy, and therefore void. It is not for this court to review f \ 302 CHICAGO GENERAL RAILWAY COMPANY V. CHICAGO. A Ir. ^*' the acts of the city council which are within its discretion and within the grant of power to it. Feoj^le v. Chicago West Division Ry. Co. 118 111. 113. But if it were true, as contended by council, that the purpose of the mileage tax was to compensate the city for granting the privilege to the plaintiff in error to lay down its tracks and operate its street rail- I way, it is still, in our opinion, a valid condition, and comes fully within [the scope of the power granted to the city by section 3 of the Horse and' Dummy o.Q^'supra. In City of Providence v. Union Railway Co., 12 R. I. 473, it is said: "The defendant corporation also contends that it is not liable because the city had no power to exact a pecuniary compensation for the use of the streets. We do not think this defense is tenable. The charters of the horse railroad companies contain a provision that nothing in the charters shall be construed to allow the companies to construct, use or continue their roads into, over or through any street or highway of the city unless with the consent of the city council of said city, and upon such terms and conditions and under such rules and regulations as said city council may impose. The defendant cites certain cases which hold that a municipal corporation has no right, under a simple authority to license, to demand money for the Hcense beyond a small fee for incidental expenses. The ground of decision of those cases is that the power to license is a mere police^ power, and therefore cannot be exercised with a view to revenue, unless conferred in terms which plainly authorize it. But the power here conferred is not a police power. Evidently it was conferred, not only for the general good, but also to enable the city to protect itself as the body charged with the maintenance and repair of the streets, and it is to be construed fairly in view of its purpose. Rails in streets are a serious aimoyance. They divert travel to other streets, and so necessitate an increase of care and expense, not only where they are laid, but also in such other streets. It is therefore not unreasonable to require the companies to pay something for their privileges. The city, in giving its assent, has required it, and the companies, in accept- ing the assent, have agreed to comply with the requirements. We think the agreement binds them." The following cases, under statutes not materially different from ours, are to the same effect : City of Alle- gheny v. Millroh, 159 Pa. St. 411 ; Federal Street Railway Co. v. Alle- gheny, 14 Pittsb. L. J. (N. S.) 259 ; Street Railway Co. v. Covington, 9 Bush, 127. Booth, in his work on Street Railways, (sec. 284,) deduces from the authorities the conclusion that the municipality has a right to exact a money consideration for its consent to the occupancy of its streets, and says : " The right to exact compensation in money, otherwise called a bonus, is justified on the ground that the right to use a street already graded, as a road-bed, is a valuable privilege, and because the occupa- tion of the streets by cars interferes to some extent with their use by other travelers. Where the enjoyment of the franchise depends upon ^<\ -MV-'-f=^ y ^i CHICAGO GENERAL RAILWAY COMPANY V. CHICAGO. 303 the consent of the local authorities, their right to impose conditions authorizes them to exact the payment of a bonus." Judge Elliott, iu his recent and able work on Railroads, (sec. 1081,) lays down sub- stantially the same doctrine. It is said the public, for the best interests of which the city council must act, is not the public within the limits of the city, but that by the term " public " is meant " the body of the people at large; the people of the neighborhood; the community at large, without reference to geo- graphical limits," — citing Baker v. Johnson, 21 Mich. 319. We do not deem it _impor tant to here determine the meaning of the word " pnbllcT'' as_useiJiy;.JtlieJLegislature. Certainly there is nothing shc^wu iu this record to justify the presuiiii>tion that the city council used the word in a sense other than that placed upon it by the legislature. It is again insisted that the condition embodied in section 8 of the ordinance is violative of the fourteenth amendment to tlie constitution of the United States, of section 2 of the bill of rights of the constitu- tion of this State, and of section 22 of article 4 of the latter constitu- tion. The position is, that each of these are violated because the railway company is, by the condition, denied the equal protection of the laws of its property without due process of law ; that a general law may be made, applicable to all street railways in the city, but no special ordinance can be enacted; and it is insisted that because other ordinances have been adopted by the city granting privileges to other railway companies to occupy the streets without exacting this condition, the latter provision has been violated. We think, with counsel for the cit}', that the statute having given the municipality power to grant or withhold its consent as "it shall deem for the best interest of the public," — the power being discretionary, — it is manifestly not to be exercised by a general ordinance applicable alike to all cases, but each case must be acted upon with reference to its peculiar conditions and circumstances. If, in the exercise of its sound discretion, the city council shall determine that the best interests of the public do not require the imposition of any conditions whatever, it may grant its license without qualification ; but if, on the other hand, the public interest requires that the occupancy of particular streets, under peculiar conditions, demands that certain exactions shall be made of the com- pany for the privilege conferred, then the city council has a right to so provide, and no constitutional right or privilege is interfered with. There is no general law of the State of Illinois, nor is there an ordi- nance of the city of Chicago, requiring all street railway companies to pay a mileage tax, but, as we have before said, discretionary power is conferred by the legislature upon the city council to impose such a condition upon giving its consent to any particular company to occupy its streets. We are also of the opinion that even though it might be held that the condition upon which the permit or license was granted to the de- fendant railway company was ultra vires, the city not having the power 304 CHICAGO V. UNION TRACTION CO. to impose it, nevertheless, the ordinance having been accepted by the company with the condition attached, agreeing thereby to perform it, it became a valid contract between it and the city, the validity of which * the defendant is now estopped to deny. The act of the city in imposing the condition cannot be treated as against public policy or prohibited by statute, and void, and therefore, having accepted the contract in its entirety and enjoyed the benefits for which it agreed to pay the amount prescribed, it cannot now repudiate that contract. Kadisit v. Building xiss.^ 151 111. 531 ; Cook County v. City of Chicago, 158 id. 524 ; City of Fulton V. Northern Illinois College, id. 333. It is well settled in this State, that while the granting of authority to occupy the public streets of a city for other than the ordinary pur- poses of a street is, in the first instauce, a mere license, still, when that license is granted upon conditions, and the licensee has accepted the privilege and performed tlie conditions, it becomes a contract between the parties. Here it must be admitted that the defendant could only occupy the streets of the city with its tracks by the consent of the municipal authorities. That consent could be given or withheld, as these authorities deemed proper; and upon such conditions as they considered for the best interests of the public they granted the privi- lege and named the conditions. The defendant accepted, without qualification. It has availed itself of the benefits of the contract and now seeks to repudiate the conditions. "VYe are unable to see upon what principle, under the law of contracts, it can be allowed to do so. We think, however, that the liability of the defendant upon its bond may be properly placed upon the broad ground that the city council was vested with full power and authority to impose the condition and require the bond for its faithful performance. The judgment of the circuit court will be afl3rmed. J; rr^ Judgment affirmed. CHICAGO V. UNION TRACTION CO. -t-*-^^^ V"""^^ 1902. 199 ///. 259. ^ ^ ^Hf-^^ BoGGS, J.^ The city of Chicago instituted an action before a justice of the peace against the defendant in error company to recover the fines provided by section 1717 of the revised code of ordinances of said city for the alleged violation of the provisions of section 1716 of the code. The traction company was adjudged guilty by the justice of the peace and a fine of $100 was assessed against it. In the crimi- nal court of Cook county, to which the traction company brought the cause by an appeal, judgment was entered finding the traction com- pany not guilty. The city has sued out this writ of error to bring the record into this court for examination. 1 Arguments omitted. — Ed. CHICAGO V. UNION TRACTION CO. 305 The ordinances upon which the prosecution is based are as follows : ^rv-A-'-v*^ " 171G. The several street railway companies at any time operating railroad tracks on and along the surface of any of the streets, avenues or alleys of the city of Chicago are hereby, respectively, required to remove all dirt, snow and other accumulations from so much of the surface of each street, avenue or alley now or hereafter containing any '_ ^^ of their railway tracks, as lies between the two outermost rails of such tracks, and also frorn^ such additional surface, in width, as may be prescribed in any ordinance relating to or affecting any such street, aveiiue or alley, and shall, respectively, clean such portions of said street, avenue or alley and remove entirely from and out of such street, ^^■^,^J^J, (^ .^.^jm avenue or alley all such dirt, snow and accumulations at least once in each week, and as much of tener as the commissioner of public works o^ shall, in writing, direct ; such dii-t, snow and accumulations to be re- moved and disposed of in accordance with the ordinances of the city in relation to the removal of street cleanings, and subject to the rules and regulations of the department of public works in that behalf. " 1717. Any street railway company operating a street railway upon or along the surface of any street, avenue or alley in the city of Chicago which shall refuse or neglect to clean any part of a street, avenue or alley, as required by the last preceding section hereof, shall, upon con- viction thereof, be fined in a sum not less than $50 nor more than $200 for each and every case of such refusal or neglect." The alleged violation of the ordinance consisted in the refusal of the traction company to remove the dirt and other accumulations lying on the surface of the street between the two outermost rails of the^ * , track of its railway in Kinzie street. That the defendant in error "^"'''■'^^'^ " company so refused and failed to obey the ordinance was conceded. C"^-^*-^''^ « The judgment of acquittal proceeded upon the view urged by the ^ traction company that the ordinances were void. The defendant in error company is a corporation organized and existing under and by virtue of the laws of the State of Illinois, and is engaged in the occupation and business of carrying passengers for hire in street cars propelled by electricity, and otherwise, in the city of Chicago. Its tracks were laid in Kinzie street by virtue of an ordi- nance adopted by the city council of the city on the 14th day of March, 1887, authorizing the North Chicago Street Railway Company, its successors and assigns, to construct and maintain a double track street railway in said Kinzie street and operate the same by electi-icity con- veyed by overhead wires. The defendant in error company is the suc- cessor of the said North Chicago Street Railway Company. It has constructed and maintains a double track railway on Kinzie street, in the city of Chicago, from ^Market to State street, and operates its street cars thereon by electric power. It was stipulated that ever since the first day of July, 1899, the said defendant, the Chicago Union Traction Company, has had possession and control of said street car tracks on Kinzie street, and has run 306 CHICAGO V. UNION TRACTION CO. thereon street cars for the conveyance of passengers, operated by elec- tric power only, by means of an overhead wire, and that during the week beginning Sunday, August 6, 1899, and ending Saturday, August 12, 1899, the said defendant did not remove, and refused, on demand, to remove, from the said street car tracks on Kinzie street the dirt and other accumulations lying on the surface of said street between the two outermost rails of said tracks, contrary to the form of said \ordinance of April 8, 1897 ; that said Kinzie street is a public street in Ithe city of Chicago, the fee title to the soil of which street is in the said city of Chicago for the use of the public as a street. The sole question presented is, whether the city possessed power to^ adopt and enforce the ordinance. The position of counsel for the de- fendant in error company is that the ordinance is void, and that con- tention met the view of the criminal court. There was testimony to the effect that the presence of the rails of a street railway track upon a street causes the dirt to accumulate in the portion of the street between the rails. The tendency is for dirt to gravitate towards the sides of the street when there are no rails to pre- I^ vent it ; that this tendency of dirt to gravitate toward the sides of the '*' street is aided by the elements, and that little brooming is required to keep the center of streets clean if there are no rails upon them, but rails retain the dirt in the center of the street ; that the presence of the tracks in Kinzie street added to the difficulty in cleaning the portion of the street outside the rails ; that it took longer to clean an entire street with rails than it took to clean a street where their were none, — three times as long on the portion of Kinzie street in question ; that Kinzie street was paved between the rails with granite and outside with cedar blocks, and has a flat crown between the rails and sloped from the outside rails to the gutter ; that the dirt came from horse droppings, from excavation wagons, coal wagons and ordinary wear and tear; that street accumulations have an effect upon the general health, through dust, in two ways : one through the presence of irritat- ing particles, which are injurious in this, as being irritants to the respiratory passages and the eyes, and also to the presence of patho- genic bacteria which are in and upon the particles of dust which are in the street. As to these points there was no countervailing proof. It appeared from this testimony the health and comfort of the peo- ple requii-ed the dust and other accumulations should be removed from that portion of Kinzie street described in the ordinance. There is, it is conceded, a general police power possessed by the city by which the traction company and all persons, natural or artificial, may be subjected to such reasonable restrictions and regulations as are found to be proper and requisite to secure the health, comfort and conven- ience of the people. The ordinance, it is urged by counsel for the city, should be sustained as a legitimate exercise of the police power. It is insisted by the traction company it is the duty of the city to keep the streets of the city clean and in good repair; that the city has power to CHICAGO V. UNION TEACTION CO. 307 raise funds for that purpose by general taxation, that the public interest is concerned in the matter of cleaning and repairing the streets, and that the execution of the power to raise the necessary funds to clean and repair the streets by general taxation is a duty devolving upon the city, and that it cannot lawfully lay the burden of the work of cleaning and repairing the portion of Kinzie street in question on the traction company, as is proposed to be done by this ordinance ; that the ordinance is void for the reason it casts a public burden upon the traction company and discriminates against the traction company, and is a perversion of the police power. It is clear the city could not, by virtue of the police power or other- wise, require the defendant in error company to clean and repair the street if the real purpose is merely to shift the public burden from Ttself to the company. In Gridley v. City of Bloomington, 88 111. 554, we held invalid an ordinance which imposed a fine upon any one who should permit snow to remain on the sidewalk abutting premises occupied or owned by him, longer than a period of six hours after it ceased to fall, or if the cessation is in the night time, then longer than •six hours after sunrise on the next morning, for the reason, as there said, " the sidewalk, as was declared in the case cited, is as much a public highway, free to the use of all, as the street itself, and, upon principle, it follows the citizen cannot be laid under obligations, under our laws, to keep it free from obstructions in front of his property at his own expense any more than the street itself, either by the exercise of the police power, or by fines and penalties imposed by ordinance, or by direct legislative action." In City of Chicago v. O'Brien^ 111 111. 532, we held the city had not the constitutional power to require the owner or occupant of premises to keep the sidewalk and gutters in front thereof free from snow and ice, or to sprinkle the same wilh ashes or sand where the snow and ice cannot be removed without injury to the pavement, and inflict a fine on him for a neglect or failure to do so, and declared the principle that " a purely public burden cannot be laid upon a private individual, except as authorized in cases to exer- cise the right of eminent domain, or by virtue of proper proceedings to enforce special assessments or special taxation." The doctrine of these cases is unquestionably sound, but we do not assent to the view pressed upon us by counsel for the defendant in error company that they are decisive of the validity of the ordinance here under consideration. The defendant in^rror company does not occupy the position of the owner of property abutting upon a street. The owner of property abutting on a street has no interest in the street of the city, as a street, other than that possessed by every other citizen. He may be required, by way of special assessments or special taxation laid in pursuance of law, to make special contributions to defray the cost of constructing a sidewalk or improving the street, but this is upon the theory the value of his property is enhanced thereby. The burden, however, of keeping the sidewalk or street clear o < o- ^■' — i ij-Ct^ 308 CHICAGO V. UNION TKACTION CO. of snow, ice and other accumulations is a public burden, and no obli- gation is imposed upon the lot owner to perform that which it is the duty of the municipality, as the representative of the public, to per- form. The lot owner has no special right, benefit or interest in the street in front of his premises. The defendant in error company has^ however, been granted a special privilege to occupy tlie street with its rails, girders, poles or posts and wires, etc., and to operate ils cars" along its tracks so laid in the street. Horsemen and drivers of vehicles must yield the right of passage to its cars along and upon its tracks in the streets, as we have explained in North Chicago Electric Railv:ay Co. v. Peuser, 190 111. G7. It has acquired privileges in the street which other persons, natural or artificial, do not possess. It actually occupies a portion of the street in a manner which would not be permitted without the aid of an ordinance. It ha s a guajified right, of occupancy, and to that extent a property interest, in a portion of the street, and is authorized to transact its business for its own sain on the public street. It sustained a relation to the street and to the city entirely distinct from that of an abutting proi:)erty owner, and it does not follow that the defendant in error company cannot be re- quired to clean that portion of the street occupied by its trades simply because an abutting property owner cannot be required to clean that portion of the sidewalk or street which is in front of his premises. The permission or license given the defendant in error company to use the street did not operate to deprive the city of the general power of control over the street delegated to the municipality by the General Assembly of the State. The license and privilege enjoyed by the de- fendant in error company are in subordination to the general power so residing in the city. The traction company, in virtue of the special privileges granted, has a qualified right of occupancy of that portion of the street between the outermost rails of its two lines of track which are laid in the street. The evidence shows that portion of the pave- ment of the street, for the convenience of the company, has been con- structed differently by the company from what it otherwise would have been laid ; that on that portion of the street covered by the tracks of the street railway the pavement has been laid flat, thus giv- ing the surface of the street a flat crown of the width of sixteen feet, when, but for the tracks of the railroad, the pavement would have been laid with a slope from the center of the street to the gutter upon either side, and that the rails of the tracks prevent the filth of the street from reaching the gutters. It further appeared the tracks of the railway interfere with the work of cleaning both that portion of the street within the tracks and also that portion of the street between the outer- most rails of the tracks and the gutters; that as much time was re- quired to clean the portion of the street outside the tracks as would be required to clean the entire surface of the street if the railroad tracks were not there. All of these things must be considered in determining as to the reasonableness, necessity and justice of the requirements of CHICAGO V. UNION TRACTION CO. 309 the ordinance. True, the dirt and accumulations to be removed (so far as the evidence bears upon that question) were not brought by the traction company on that portion of the street occupied by its tracks, but it does appear its rails and road-bed, and the manner in which the crown of the street has been constructed for its convenience, tended to retain the dirt and filth there and to render it more difficult and expensive to remove the same, and also to make it more expensive to clean the street outside the tracks. The public health and comfort required the street should be cleansed of the dirt and filth which " ac- cumulated " on the pavement between the tracks of the railway and about the rails of such tracks, and the exercise of the police power to that end devolved upon the city as a duty. It^es not seem unreasonable that the city should require the trac- tion company lo" clean and" render healthy that portion of the street occupied by the tracks of the road, under the circumstances of the _oase. In order to secure the public health and comfort the property of individuals and corporations may alike be subjected to reasonable restrictions and burdens. It does not appear unreasonable that the traction company, having, in the exercise of the special privilege enjoyed by it of using the street, contributed to the unsanitary con- dition which injuriously affects the public health and comfort, should be required to aid in removing such conditions. The privilege enjoyed by the defendant in error company to niaintain its railway in the street and operate its cars thereon is to be exercised in the interest of the public, — it was to serve the public that the privilege was granted to it. Its business and property are impressed or affected with a public use. It may therefore be subjected to municipal regulations of a greater scope, in the interest of the public at large, than that of a rail- road company exercising its franchises on its own road-bed. Cape Mcui Street Railway Co. v. Cajje May, 59 N. J. L. 396; Charlotte, etc.. Railroad Co. v. Gibhs, 142 U. S. 386. Ordinances have been upheld which required street railway companies to keep the street between the rails of their tracks in repair, and which regulated the common use of the streets for street railway and ordinary travel, North Hudson Rail- road Co. V. Hoboken, 12 Vroom, 71 ; to make the railroad tracks of street railway companies located in a street to conform to the require- ments of the ordinance, so as to enable wagons, carriages and other vehicles to pass over tracks without inconvenience or danger, North Chicago City Railiuay Co. v. Totvn of Lake View, 105 III. 183; to remove snow from the street, Broadivay Railroad Co. v. Mayor, 49 -, Hun, 129 ; prohibiting the use of sand, saltpeter or salt on the tracks t of a street railway. Dry Dock Railroad Co. v. Mayor, 47 Hun, 221 ; Traction Co. v. Elizabeth, 58 N. J. L. 520 ; and ordinances to compel cleaning and sprinkling of the tracks of street railway's have been not infrequently upheld as valid. Booth on Street Railways, sec. 230; 23 Am. & Eng. Ency. of Law, — Isted. — p. 999 ; City, etc.. Railroad Co. v. Savannah, 11 Ga. 731. The ordinance here under considera- •\ks- 310 ' CHICAGO V. UNION TRACTION CO. tion is general in its operation, affecting alike all corporations and in- dividuals who are similarly situated and bear the same relation to the streets of the city. The rule of equality and uniformity is not invaded, nor does the ordinance unjustly discriminate against any individual or corporation. It is urged the ordinance granting the license to lay the tracks and operate the street railway in Kinzie street constitutes a contract between the city and the traction company, the obligations whereof cannot be impaired by any ordinance subsequently enacted, and we are invited to consider whether the provisions of the ordinance so granting permission to occupy the street with the tracks of its railwa}'^, and operate its cars on such tracks, do not relieve the defendant in error company of the burden sought to be laid upon it by the ordinance here endeavored to be enforced. On the other hand, counsel for the city insist the latter ordinance requires the company to do no more than it is bound to do by a fair and reasonable construction of the terms and provisions of the former ordinance granting authority to the defendant in error company to occupy the street with its tracks. I I" The cityj_as the representative of the State, is invested with power ''^**'^ to enact and enforce all ordinances necessary to prescribe regulations and restrictions needful for the preservation of the health, safety and .A>-JU'v comfort of the people. The exercise of this power affects the public and becomes a duty, the performance whereof is obligatory on the city. The city could not, by the terms and conditions of the former ordi- nance^ deprive itself of this power or relieve itself of this duty, nor could the defendant in error company, by any contractual terms of au ordinance, exempt itself from the proper and reasonable control of the municipal authorities in matters affecting the health, safety or comfort of the people. " No contract can be made which assumes to surrender or alienate a strictly governmental power which is required to continue in existence for the welfare of the public. This is especially true of the police power, for it is incapable of alienation. It cannot be doubted that a company which secures the right to use the streets of a municipal corporation takes it subject to the police power resident in the State as an alienable attribute of sovereignty." Elliott on Roads and Streets, p. 801. We are of the opinion the ordinance under consideration is a reason- able and valid exercise of the police power, and that it should be obeyed and enforced accordingly. The judgment of the criminal court is therefore reversed and the cause is remanded to that court for further proceedings in conformity to this opinion. ( ^ ' 1 Reversed and remanded. V " ^y^. (^ ^,9^ ^^^"^ SMITH V. HUNT. 311 ^ ', V^ FOKT SMITH v. HUNT. yS^''^ 1904. 72 ^rA-. 656. Battle, J.^ This appeal grows out of the prosecution of R. G. Hunt, general manager of the Fort Smith and Van Buren Light & Transit Company, charged with the violation of an ordinance of the city of Fort Smith.^ • *. •••««. Appellee contends that the 25 cents demanded by the city of Fort Smith for each pole, under section one of ordinance No. 525, is " an ex- plicit demand of rental for the use of the streets." The ordinance requires every person and corporation, who shall erect, maintain and use any pole or poles on any of the public streets and alleys of Fort Smith to pay to the city, as a license therefor, a sum equal to 25 cents for each of such poles. The sum is required to be paid as a license. As used in the ordinance, the word " license " means the sum paid for permission to erect or maintain poles in the streets and alleys of the city, for the purpose of defraying the expenses of regulating and con- trolling the use of the same, under the police power of the city. This is necessary for the protection of the public against the electricity with ■which the wires on the poles may be charged, against the falling of the ■wires and poles, and the obstruction of the public highway, and for other purposes. This is a duty the city owes to the citizen. The rules and regulations for the government of those erecting and maintaining poles in Fort Smith, and tlie duties of the city engineer in respect thereto, are prescribed, in part, if not wholly, by ordinance No. 300. But this does not exhaust the police power of the city in re- spect to such poles. The city council may hereafter prescribe other rules and regulations for the same object. For the purpose of paying the expenses of enforcing such rules and regulations already in force, a license fee may be demanded and collected. Hot Springs Electric Light Co. v. Hot Springs, 70 Ark. 300, is unlike * this case. In that case this court merely held that the city of Hot Springs had no right to demand and collect a rental charge for the use of the ground occupied by the poles of the light company. The following words, used in Fayettev'dlex. Carter, 52 Ark. 301, 302, are applicable in this case: "The power to license and regulate, granted by the statute, was conferred solely for police purposes ; and municipal corporations have no right to use it as a means of incieasino- Iheir revenues. They can require a reasonable fee to be paid for a license. The amoiTnt^they Tiave a right to demand for such fee de- * Arguments and part of opinion omitted. — En. 2 On March 19, 1900, the said city enacted ordinance No. 525, by which it re- quired the owners of every electric light or street railway pole standing upon the street, avenue or alleys of said city to pay said city an annual license of 25 cents per pole. Cr^ 312 WISCONSIN TELEPHONE COMPANY V. MILWAUKEE. pends upon the extent and expense of the municipal supervision made necessary by the business in the city or town where it is licensed. A fee sufficient to cover the expense of issuing a license, and to pay the expenses which may be incurred in the enforcement of such police in- spection or superintendence as may be lawfully exercised over the business, may be required. It is obvious that the actual amount nec- essary to meet such expenses cannot, in all cases, be ascertained in advance, and that ' it would be futile to require anything of the kind.' The result is, if the fee required is not plainly unreasonable, the courts ought not to interfere with the discretion exercised by the counciliBL fixing itj and unless the contrary appears on the face of the ordinance requiring it, or is established by proper evidence^ they should presume it reasonable." WISCONSIN TELEPHONE COMPANY v. MILWAUKEE.. ^^''^^ 1905. 126 Wis. 1. /> ^i:it.^\^ r Appeal from an order overruling plaintiff's demurrer to defendant's " / 1 answer. The complaint alleges that plaintiff was a corporation which ft'0-\ had erected telephone poles in the defendant city and that an ordi- n,^^ nance of the city provided for inspection of the poles and an annual , .a- license fee of one dollar per pole ; that this fee is unreasonable ; that , rt plaintiff's permission to operate its system was derived from the state '^ and not from the city ; and aslis for an i njuncti on against the enforce- . i"^^ ment of the ordinance. The answer denies that the fee is unreason- i \ able, and that the ordinance is void.^ \^ Kekwin, J. The questions presented here upon the facts admitted by the demurrer are thus stated by respondent: ''First. Has the city authority to exact a license such as is pro- vided for in the ordinance, the enforcement of which the appellant seeks to enjoin? " Second. Does the ordinance in question contravene the foiu-teenth amendment of the federal constitution and sunilar provisions of the Wisconsin state constitution?" The first proix>sition stated by counsel practically embraces the con- troversy before us, and we shall proceed to consider the right of the defendant city to exact the license fee. It is apparent from the argu- ment of counsel for respondent, as well as from the authorities cited, that the ordinance is sought to be upheld under power of the defend- ant city to license the plaintiff and exact the license fee provided for in the ordinance. It is, however, contended that the license fee is not 1 This short statement of facts is substituted for that of the Reporter. Arguments omitted. — Ed. WISCONSIN TELEPHONE COMPANY V. MILWAUKEE. 313 exacted for any right or privilege conferred upon the plaintiff, but simply as a police regulation, and reference is made to the provisions of the city charter conferring power to prevent the incumbering of streets, lanes, and alleys, and giving the city the right to control and regulate the streets, alleys, and public grounds of said city, and under these provisions, as well as under the general police power, it is con- tended that the ordinance is in the nature of a police regulation. __yat power ib conferred upon the defendant under its charter or ])y any law : oT^this state to grant to the plaintiff the privilege of constructing, maintaining, or operating its telephone lines upon the streets of defend- ant city. This authority is specifically conferred by the legislature jaf tS^'s tate, subject only to the provision that it shall not "olistruct or i ncom mode the public use of any road, highway, bridge, stream or Eody of water." No authority is conferred upon the defendant to im- pose any other condition upon the plaintiff except such as it may law- fully impose under its power to control and regulate the streets, alleys, and public grounds and prevent the incumbering thereof, and its gen- eral police powers. Beyond this it has neither the right to confer any privilege upon the plaintiff in the use and occupation of streets, nor to impose conditions. St((te ex rel. Wis. Tel. Co. v. Sheboygan, 111 Wis. 23, 86 N. W. 657 ; Marshfidd v. Wis. Tel. Co. 102 Wis! 604, 78 N. TT. 735. It is very clear that the defendant had no power to exact a license^ee from the plaintiff for the privilege of constructing, main- taining, or operating its telephone lines upon the streets of defendant cityT Wis. Tel. Co. v. OshJcosh, 62 Wis. 32, 21 X. W. 828. And it is conceded on the part of the respondent that the ordinance can only be sustained on the theory of a police regulation. It will be seen, how- ever, that the cases cited by respondent are cases where the license fee was upheld upon the ground that the municipality had the right to grant some privilege to the company licensed, and for the granting of which a license fee was sustained, or where the purpose of the ordi- nance was to regulate and not to license. Counsel for respondent frankly concedes that the^city has no franchise to grant to the plaintiH, and no power to confer under which the poles and wires may be main- tained in streets, but contends that under the broad power of regula- tion conferred by the legislature and the police power it has the right to make and enforce reasonable regulations for the protection and safety of its citizens, and quotes at length from W. U. Tel. Co. v. Phila- delphia (Pa.), 21 Am. &, Eng. Corp. Cases, 40, 12 Atl. 144 ; but the case is not in point upon the proposition asserted, for the reason that the city of Philadelphia had the power to grant to the company the right to occupy the streets and impose upon the company such conditions and regulations as the municipal authorities might deem necessary, and the court said : " That such is the relation of the city to the various companies which had been empowered to occupy its streets with a view to gain is to me abundantly clear, and they should not grudge a reasonable compensa- 314 WISCONSIN TELEPHONE COMPANY V. MILWAUKEE. tion for the space they occupy and the risks which she incurs on their account." Council quotes from C, M. & St. P. R. Co. v. Milivaukee, 97 Wis. 418, 72 N. "W. 1118, to the effect that the charter of a corporation does not exempt it from police supervision and regulation, which is true as applied in that case ; but the question here is not one of escape from police regulation, but whether the ordinance of the defendant is within it. People ex rel. N. Y. E. L. Co. v. Squire, 107 N. Y. 593, 14 X. E. 820, clearly involves a regulation under a statute of New York concerning such companies, and which provided for the removal of such wires and cables from the surface of the streets and laying the same under ground, and the court said (107 N. Y. 602, 14 N. E. 823) : "The claim that this law is void because it imposes a tax on the companies referred to cannot be maintained. The act of 1884 imposes the duty upon such companies to remove and cause to be laid under- ground all such wires and cables as are required in their business, and there is no reason why such companies should not be subjected to the pa^^ment of all expenses incurred in the construction of works required to carry on their own business." In State ex rel. Wis. Tel. Co. v. Janesville St. R. Co. 87 Wis. 72, 57 N. W. 970, the question involved under the ordinance was one ot rea- sonable regulation. The ordinance provided for the location and use of electric wires in the streets, reasonable safeguards for the same, and a penalty for the violation of the regulation. No license fee what- ever was exacted. It was purely a regulation requiring safeguards and providing a penalty for failure to furnish the same. Marshfield v. Wis. Tel. Co. 102 Wis. 604, 78 N. W. 735, involved the question of the city's right to control its streets and prohibit the incumbering of the same, and it was held that under this power the city had the right to prevent the incumbering by telephone poles certain of its streets, in the exercise of a reasonable discretion, and that the common council had a reasonable discretion in the location of such poles. The domi- nant purpose of the street being for public passage, any appropriation of it by legislative sanction to other objects must be deemed to be in subordination to this use. The decision only goes to the extent of au- thorizing a reasonable regulation on the part of the city. In Baltimore v. Baltimore T. & G. Co. 166 U. S. 673, 17 Sup. Ct. 696, it was held that the street railway company, occupying the streets by permission of the municipality, was subject to reasonable regulations by subse- quent ordinances, and that the city did not exhaust its power of regu- lation by one exercise of it. In Pidladelphia v. W. U. Tel. Co., 11 Phila. 327, the telegraph company commenced the construction of a new line on the streets, and the city sought to regulate such construc- tion. Its right of regulation was sustained on the ground that the tele- graph company was occupying the streets by permission of the city under the restriction that it should not use the streets of Philadelphia without the consent of the mayor and city council first had and ob- WISCONSIN TELEPHONE COMPANY V. MILWAUKEE. 315 tained. The cases generally cited by counsel for respondent from Pennsyl vania and from the Supreme Court of the United States upon appearFrom that state turn upon the laws of that state, which authorize municipalities to grant permission to such companies to occupy the streets and impose such conditions and regulations as the municipal authorities may deem necessary. No such power is conferretl upon municipal corporations in Wisconsin. State ex rd. Wis. Td. Co. v. ETieboygon, 111 Wis. 23, 8G X. W, 657. Ash v. People, 11 Mich. 347, upholds the right of the city of Detroit to pass an ordinance prohibit- ing the keeping of stalls for the sale of fresh meats outside of the pub- lic markets without license and payment of license fee under its char- ter, which expressly empowered the common council to license and regulate butchers and the keepers of shops and stalls. ITarmet v. State, 45 Ohio St. 63, 12 N. E. 463, is a case where right to license is upheld under express legislative authority given. Also in State^. Herod, 29 Iowa, 123, power was conferred upon the city to license 1 In S"t7~LoiLns""tire title to the streets being in the city, and the charter giving the right to license, tax, and regulate telegraph companies, it was held that, the city having the right to grant the use of the streets to telegraph companies, it regulates the use when it prescribes the terms and conditions upon wiiich they shall be used. The case turns upon the power of the city to grant the right to use the streets to the telegraph company. St. Louis v. W. U. Tel. Co. 149 U. S. 465, 13 Sup. Ct. 990. But we will not further extend discussion of cases cited by respond- ent. It is manifest they do not support the proposition that the de- fendant has authority to exact a license such as is provided for in the ordinance in question. The power rests in the state to determine what occupations shall be licensed. Wis. Tel. Go. v. Oslikosli, 62 Wis. 32, 21 N. W. 828; State ex rel. Wis. Tel. Co. v. Sheboygan, 111 Wis 23, 86 N. W. 657; Cooley, Const. Lim. (7th ed.) 884. And it is not claimed that any power had been granted to the defendant by the leg- islature to license the plaintiff^ nor is it claimed that the plaintiff has failed to comply with all regulations respecting its use of the streets, or that it has violated the law granting it the right to occupy the streets by obstructing or in any manner interfering with the public use of the streets of defendant. And, no power having been delegated to defendant to license plaintiff, it could not exact a license fee as a means of^ raising revenue. Wis. Tel. Co. v. OsJiTcosh, supra; State ex rel. Wis. TeL Co. v. Sheboygan, supra; Marshfield v. Wis. Tel. Co. 102 Wis. 604, 78 N. W. 735 ; State ex rel. Wis. Tel. Co. v. Sheboygan, 114 Wis. 505, 90 N. W. 441 ; Mich. Tel. Co. v. Benton Harbor, 121 Mich. 512, 80 N. W. 386. But it is claimed that the ordinance is a regula- tion and not a revenue measure, and that it may be sustained upon the theory that the defendant has the right to impose such fee for super- vision and inspection under the police power. Whether t he city has power to imp ose any fee upon the plaintiff for inspection and super- 316 WISCONSIN TELEPHONE COMPANY V. MILWAUKEE. vision is not necessary to decide, and we do not decide, in this case, because it is clear that the ordinance was passed for no such purpose,' but, ou the contrary, was an attempt to charge plairitift for the privi- lege of maintaining its poles and wires in the streets. If the city had power to grant any privileges in the streets to the plaintiff, or had ex- press authority from the legislature to license the plaintiff so as to bring its case within the authorities cited, the respondent's position would be quite different. But, as before observed, the defendant had no right or privilege to grant to the plaintiff, and no power to prevent its use of the streets in a reasonable manner consistent with the public use, and the provisions of the ordinance set out in the statement of facts show that it was a revenue measure and not a regulation. The ordinance requires telephone and telegraph companies to apply annually for a license to maintain, for the ensuing year, the poles and cross-arms then erected, and provides for payment, for the use of the city, of one dollar for each and every pole authorized to be maintained thereby. The ordinance further provides that all revenue derived from such license shall become part of the general city fund, and imposes a penalty for any violation, and further provides that the erection or maintenance of an}' single pole or cross-arm in violation of the provi- sions thereof shall constitute a distinct and separate offense thereunder. The plain import of this ordinance is that it grants the privilege to tele- phone and telegraph companies to occupy the streets of defendant city with their poles and cross-arms in consideration of the license fee exacted. Nenman v. State, 7G AVis. 112, 45 N. W. 30 ; Chilvers v. People, 11 Mich. 43; Home Ins. Co. v. Augusta, 50 Ga. 530. There is nothing in the ordinance indicating that the fee is exacted for inspec- tion or supervision, or that it will be used for such purpose, or that any such amount is necessary to defray the expense of such inspection and supervision, and it is quite obvious that the aggregate amount sought to be collected would be far beyond the reasonable expense of such inspection and supervision. We think it safe to say that any reason- able cost of inspection and supervision would not exceed one teatkjQf- the revenue chargeable according to the terms of the ordinance. True, where the power to license exists, a reasonable discretion is vested in the municiijality, but courts have a right to look into ordinances with a view of determining whether they are passed for the purpose of reve- nue, although sought to be upheld as police regulations. Even if the city had the right to impose reasonable charges for inspection and su- pervision, it should not be permitted under the guise of such power to collect large amounts of revenue for the benefit of the city regardless of the amount necessary for such inspection and supervision. And where the court can clearly see that revenue and not regulation is the aim and not the incident, and no power is given to license the oc- cupation, the ordinance is void. Wis. Td. Co. v. Oslikosli, 62 Wis. 32, 21 N. W. 828; State ex rel. Wis. Td. Co. v. Sheboygan, 111 Wis. NEW LONDON V. BARNARD. 317 23, 40, 41, 86 N. W. 657; Postal T. C. Co. v. Taylor, 192 U. S. 64, 24 Sup. Ct. 208 ; Mich. Tel. Co. v. Bi-nton Harbor. 121 Mich. 512, 80 N. W. 386; Mayor, etc., v. Second Ace. It. Co. 32 N. Y. 261; Memphis y. Am. Exp. Co. 102 Teun. 336, 52 S. W. 172. It follows from what has been said that the order must be reversed. By the Court. — The order of the court below is reversed, and the cause remanded with instructions to sustain the demurrer. \^^s}^ ' ^..jC'''^''^^ Section V. Poioer to expend money, -r^ ,^X- NEW LONDON v. BARNARD. ^ ^ 1853. 22 Conn. 552. Bill in eq uity to enjoin t he city of New London from expending monej' to celebrate the anniversary of national independence.^ Storks, J. It is well established, that corporations have only such rights and powers as are expressly granted to them, or as are necessary to caiTy into effect the rights and powers so granted. It was accordingly held, in Stetson v. Kemplon, 13 Mass. R. 272, where this principle is very fully vindicated and explained, that towns have no authority, in their corporate capacity, in time of war or dan- ger of hostile invasion, to vote money and cause it to be assessed upon the inhabitants, for the purpose of raising money to give additional wages to the militia, or for the purpose of defence in cases of in- vasion : and in Hodge v. The City of Buffalo., 2 Denio, 110, that the defendants had no power to contract a debt, for the purpose of defray- ing the expense of celebrating the anniversary of our national in- dependence. In the former of these cases, the action was against the assessors of the town, who assessed a tax, which was collected, in part, of the plaintiff, in pursuance of a vote of the town, to raise a certain sum of money for the paj'raent of additional wages to the militia, and other expenditures of defence ; and the court refrained from expressing an opinion on the question whether any money actually in the treasury of the town, beyond what is needed for its or- dinary expenses and which is unappropriated, may be disposed of in pursuance of a vote of the inhabitants, for the common defence. In the latter case, the action was brought against the cit}' of Buffalo, to recover the amount of the expenses which it had, by a vote, authorized a committee to incur on its behalf. We are unable to perceive any just ground of discrimination between a disposition of moneys already 1 This short statement substituted for that of the Reporter. Arguments and part of the opinion omitted. — Ed. 318 HITCHCOCK V. ST. LOUIS. in the treasury of the corporation, and a vote to raise money by a tax. ■^"a contract to pay money, for such unauthorized purpose. We do not find, nor have we been referred to, any express power in the charter of the city of New London, nor is there any general law, authoriziug an expenditure of money, for the purpose for which the vote in question was passed ; nor is any power conferred on that city, for the exercise of which such an expenditure is necessary. We think, therefore, that that vote is not binding on the plaintiffs. HITCHCOCK V. ST. LOUIS. (>--ssA^^cfc^ j W^--^ 1872. 49 3/0.484. ^C^^^M. C t^ Wagner, J.^ This suit was brought to test the validity or an or- ^vvt dinance passed by the city council of the city of St. Louis, by which (l„^^\ the sum of $1,500 was appropriated out of the general revenue and / | ordered to be paid to the mother superior of St. Ann's Orphan Asylum . % and Widows' Home, as a donation from the city toward the mainte- ' nance and support of that institution. The court below decided that the ordinance was invalid, and that the council possessed no power to make the appropriation, and from that decision this appeal is pros- ecuted. The general grant of corporate powers contained in the charter incorporating the city gives it authority to '' purchase, receive and hold property, real and personal, within said city, and also hold the like beyond the limits of the city, to be used for the burial of the dead of the city ; also for the erection of waterworlvs to supply the city with water ; also for the establishment of a hospital or hospitals for the reception of persons infected with contagious and other diseases ; also for a poor-house or poor-houses, work -house, house of correction, or for any other purpose ; and may sell, lease, or dispose of pi^operty for the benefit of the city ; may receive bequests, gifts and donations of all kinds of property, within and without the city, for chari- table and other purposes, and may do all acts necessary to carry out the purposes of such bequests, gifts and donations, with power to sell, lease, dispose of and manage the same." In the article defining the legislative powers of the city council, the council is invested with power " to make all such ordinances, not inconsistent with the laws of this State, as may be expedient, maintaining the peace, good govern- ment and welfare of the city, and its trade, commerce and nianu- . factures." Do any of the above enumerated grants authorize the city council to appropriate or give away the public moneys as pure dona- tions or gratuities? We do not think the donation can be upheld on the ground that it is germain or incident to any power granted. The council may exercise implied or incidental powers wherever they ^ Arguments omitted. — Ed. COOLIDGE V. BROO KLINE. 319 are necessary to carry out or execute those clearly expressed. And ^here the corporate authorities have a discretion, courts will not ordinarily interfere. But when they act they must show some grant or power to authorize their action. Thejnty_council, in the discharge of their duties, do not act for themselves, but for the public. They are t rustees nlotlied^ with a ti-ust, not for the corporation as such, but for the citizens and the public who have confided the authority to tliem. The charter is the power of attorney which defines and limits the objects and powers with which they are entrusted. The diversion of the money of the tax-payers for any purpose other than that which is expressed in the charter, is a perversion of the trust and an excess of authority. That there is no express power in the charter conferring authority to make donations, gifts or gratuities, is too clear to require any argument. Th e donee is a mere i) rivate institution, not under the control of the city and having no connection with it. If the tax-pa3'ers' money can Be tak eij and given to it, it may be also to any other private corpora- tion, or it may be distributed gratuitously to individuals. It is clear that the charter confers no such authority, and we think, therefore, that the judgment should be affirmed. The other judges concur. V^, M^-^^ ^^ ^ COOLIDGE V. BEOOKLINE. "^(V .A2>^-.fe*5-'^^ 1874. 114 Mass. 592. ^ Endicott, J. This is a petition by ten tax-payers to restrain the town of Brookline from paying money from its treasury for an alleged ^illegal purpose. Gen. Sts. c. 18, § 79. On October 13, 1873, an order was introduced in the board of aldermen of Boston, that the mayor be requested to petition the Legislature for an act annexing a portion of Brookline to Boston. It does not appear that the order was passed, or that any further action was taken upon it. The selectmen of Brookline, October 17 following, issued a warrant for a town meeting to be held October 28, to act, among other things, upon the proposition of the city of Boston to annex thereto a part of Brookline. At this town meeting it was voted that certain persons " be a committee for the purpose of pre ventin g the annexation of the town, or any part thereof, to the city 6T Boston, and that they be authorized to employ counsel, and such other means a s they deem expedient." To defray their expenses, they were authorized by the same vote to draw orders on the treasurer, who was directed to pay the same, and charge such payments " to the ap- propriation for contingencies." It was also " voted to raise and appro- priate for contingencies $10,000." The answer of the defendants admits that if a petition is presented to the Legislature asking for an act annexing the whole or any part of / I 320 COOLII'GE V. EE':>OKLINE. Brookline to Boston, the committee will appear with counsel before the Legislature or a committee thereof, and oppose the passage of such act, and pay their expenses by orders drawn in pursuance of the vote of the town. And they claim that the town has the legal right so to appoint a committee and appropriate money, and that the votes of the town '*axe valid- and within the lawful power of the town of Brookline to pass." A copy of a petition by certain inhabitants of Brookline to the Leg- islature for a change in the botmdary lines between Brookline, Boston and Brighton, was served on the town October 20, but this was after the warrant for the town meeting had issued, and no action of the town on this petition is before us. The action of the meeting was based upon the order introduced into the board of aldermen of Boston. Several questions were raised by the petitioners uj)on the regularity of the proceedings at the meeting, and it was argued that the town could take no legal action upon the mere introduction of such an order, and could not legally appropriate money for contingencies. As these questions relate to the formality of the proceedings, and do not involve the decision of the case upon its merits, we prefer, without expressing any opinion upon them, to consider the principal question, which has been fully presented in the arguments of counsel. That question is distinctly raised in the answer, and the town asserts that it is the intention of the committee to use the money appropriated for the purposes named in the vote, and that it is legal so to do. The simple G£^:-^; ^ therefore is. has a town power by law to tax its inhabitants for es;, - — iiicurred in opposing before the Legislatu re the annexation of the whole or part oi its te mtory to anotner city or town? in Mi not v. West Uos^vry, 112 Mass. 1. it was held that a town could not legally raise money and tax its inhabitants to pay the expenses of a committee appointed to petition the Legislature for its annexation to Boston, and to advocate and urge such annexation with counsel before the Legislature. This decision rested on the proposition that such ac- tion was not in the line of its oorpwrate duty as a town, and was not for a purpose, and did not relate to a subject matter for which towns by the statutes, either in terms or by implication, are empowered to raise money and tax their inhabitants. Such power to tax must in all cases^rirg f ronajhe statutes, a nd must be toand Lbere Hi U;im&. ur"be necessarily i nferre d from .soaie eorporatt * ^'|. '^ poses for which towns may raise money, closing with the clause, "_Forl LXtvl,^- all other ne cessar y cha rges aris ing therein." These words are held to| 'V'*-<>-^ mean all necessary charges incurred in the exercise of any duties con- ''«*-<-«'**-«^ ferred or powers given in other portions of the General Statutes or in subsequent statutes, necessarily involving the expenditure of money, but what are necessary charges must in all cases be determined by the statutes. Nothing in the statutes being found that could in terms or by impli- cation make the expenses for procuring annexation to Boston, by an act of the Legislature, a necessary charge within the meaning of the statute, the vote of West Roxbury was declared illegal. See Attorney General v. Norwich, 16 Sim. 225. Attorney Geyieraly. Guardians of the Poor of Southampton^ 17 Sim. G. Graat Western Railway v. Rvshout, 5 DeG. & Sm. 290, 309. Simpson v. Denison, 10 Hare, 51, 61. Upon a cai-ef ul examination of the statutes, and applying the same rule of con- struction as in Minot v. West Roxbury, we find nothing, in term s, or by necessary implication, making expenses for resisting a change in bounctary, or aThnexation in wh(jle or in part to anotheFtownTotie of tliQ necessary cliarges named in the statute. The bearing of Gen. Sts. c. 2, § 9, will liereafter be considered. The case, so far as the statutes are concerned, falls within the decision of Minot \. West Roxbury, unless a distinction can be made between the right of a town to raise money to promote and obtain a fundamental change in its organization by the sovereign power, and its right to defend the existing order of things, and preserve inviolate the territory within its jurisdiction, before the same tribunal, and this distinction has been urged with much force by the counsel for the defendants. It is contended, while admitting that a town cannot raise money to ***" change its organization by annexation. First, that the right to defend j f j) e^c.^.^ its existence, and maintain its corporate limits when assailed, is incident ' '^ and necessary to the exercise of its corporate duties, and the accom- ; plishment of the purposes for w^hich it was created ; that questions in which it is deeply interested are involved by such action, as what its boundary shall be, what of the town property shall be taken, whether the portion left will be sufficient to carry on the town organization, and many other questions of vital importance, all of which equally ap- ply to the annexation of the whole to another city. Second, that they have a right to be heard on these questions before the Legislature, or a committee thereof sitting as a tribunal to pass judgment between the town and those persons or corporations seeking to disturb their rights; 322 COOLIDGE V. BROOKLIXE. and that this is made certain, and that the town shall appear and be heai'd is clear!}' implied, by the provisions of Gen. Sts. c. 2, § 9. It is claimed that, this right to defend being a corporate duty, as in- cident to its exercise, the inhabitants may be taxed for the aeeessary expenses attending it, which are within the meaning of the words " necessary charges." It is important to distinguish the precise nature and extent of the right which it is asserted to be the duty of the town to defend. If it is in no absolute or qualified sense in the nature of a vested right, no corporate duty would seem to attach to it ; and the town having no cor- porate duty in relation to it, no consequent power to raise money is to be implied. The right as asserted in this case, is the right of the town of Brook- line to continue as a municipal corporation with all its power and priv- ileges within the territorial limits now assigned it by law. Questions might arise in regard to other rights and powers conferred on towns by general or special legislation, of a different character, subject to dif- ferent rules. But here the simple question is, has this town any right to its present territorial limits, which it has a corporate duty to de- fend as against the action of the sovereign power from which it derives its existence, and by which it is invested with certain subordinate powers of government for local purposes over a given territory? That it has such a right to these limits that it may defend them before all other tri- bunals is unquestionable. Such right may be said in one sense to be vested to such extent that it may be asserted aud maintained against all persons and powers except the government. Numerous illustrations of this could be given, as where corporations, persons, or officers are clothed with certain powers, subject to the control of the Legislature. But as against the government itself, such right is in no senje vested^, and no consequeut duty is imposed on the corporation to resist a change. The towns of Massachusetts do not exercise their powers within their limits under a grant, or by virtue of any contract, express or implied. They are political organizations, created for political pur]X)ses, and as mere instrumentalities b}' which the Legislature administers certain laws within particular limits. What those laws shall be, it is for the Legislature to determine, and from time to time modify, change or repeal. Within what limits a particular munici[ial corpomtioii slmll exercise these powers, whether it shall be divided, its l;K)anti;uies7 changed, or its ten*itory annexed to another municipality, is for the Legislature, in the absence of constitutional restriction, to detei- mine, as the public good or the wants or necessities of inhabitants may require. Warren v. Mayor, &c., of ^'Jc'rlestotrn, 2 Gray, S4, ll>4.~ Ojnnion of Justices^ 6 Cush. 578. In the determination of these ques- tions the corporation as such has no interest — no corporate duty to'. j perform. The correctness of this proposition is made manifest by a cursory review of the manner in which towns are created and of their COOLIDGE V. BEOOKLINE. 323 relations to the state. An act establishing a town extending over a certain territory, brings within its jurisdiction all persons residing with- in its limits. It is imperative and binding without assent or acceptance, though the Legislature in its discretion may make that a condition of its gomg into operation. The corporation has no authority to enlarge its powers, or to deter- mine who shall comprise its members, and has no duties to perform but those imposed by law. It cannot surrender its franchises or dissolve itself. It is created for public ends, and can only cease to exist b}* the act of the power creating it. While, therefore, it has corporate duties to perform to the extent imposed by the Legislature, it has no duties to perform in regard to what these duties shall be, or over what territory, or for how long a term they shall be exercised. These duties cannot extend beyond the powers granted and include any duty to maintain such powers. This question is entirely independent of the agent, trustee or depositary called a town and intrusted with municipal power, and belongs exclusively to the Legislature. People v. 3forn's, 13 Wend. 325. State Bank of Ohio v. Knooi), 16 How. 369, 380. Middle v. Proprietors of Locks & Canals, 7 Mass. 169, 187. Warren v. Mayor, <&c., of Charlestotvn, supra. Eastman v. Meredith, 36 N. H. 284. Dillon on Mun. Corp., § 23, and following sections. It is difficult in considering this question always to distinguish be- tween the wishes and interests of the inhabitants of the town for the time being, and the powers and the duty of the town itself. Much confusion arises from failure to keep the distinction in mind. But as interests and wishes change, and the corporation always remains the same, the only true test is to be found in the legal power of the town. The annexation of the town of Brookline to Boston, or a change in its boundaries, may seriously and vitally affect the interest of its present inhabitants, and be repugnant to the wishes and feelings of a large majority, but they cannot use the corporate powers of the town to en- able them to oppose such change, and thereby impose burdens on the tax-payer, when the town has no corporate duty imposed or implied by law. And that the town has no such duty necessarily follows from the character of its powers, and from its relations to the government. A strikmg instance of the application of this rule is found in Stetson v. Kempton, 13 Mass. 272. In the war of 1812, with Great Britain, the enemy were on the coast in sight of Fairhaven, they were then laying waste and destroying property at other places, and the propert}'^ and dwellings of the inhabitants of Fairhaven were in immediate danger. The town, at a regular meeting, voted unanimously $1200 for additional pay for militia and other expenditures of defence. But the court held « the vote to be illegal ; that the town had no authority to raise money for such purpose, and no legal duty to protect and defend its inhabit- ants from invasion. Several English cases were commented on in the argument, some of which have been already cited. They all arose upon the construction 324 COOLIDGE V. BEOOKLINE. of the municipal corporation act, 5 & 6 Wra. IV. c. 76, § 92. That section, after specifying certain expenses to which the borough fund is to be applied, uses words similar in their meaning and application to the words "other necessary charges" in our own statute: "all other expenses not herein otherwise provided for which shall be necessarily incurred in carrying into effect the provisions of this act." Lord Cottenham said in Attorney General v. Mayor of Nonvich, 2 Mj'l. & Cr. 406,425, that these words must mean "the expenses which would arise out of the duties imposed on the parties by the act." And in Queen v. Mayor of Sheffield, L. R. 6 Q. B. G52, it was held that the expenses incurred for the benefit of the inhabitants by the maj^or and aldermen of ShefBeld, in opposing in parliament a bill introduced in relation to a supply of water to the town, could not possibly be an expense necessarily incurred in carrying the act into execution. No duty in that respect being imposed by the act, no power to use the borough fund followed. We are clearly of opinion that a town has no corporate duty to de- fend its boundaries or its existence before the Legislature, and has therefore no right to tax its inhabitants therefor. But the defendants also claim that a town has a right to be heard by the Legislature, and that this right is so recognized by Gen. Sts. c. 2, § 9 ; that it may appear legally and defend its right as a town and may tax its inhabitants for the expenses, and that such action is in the nature of a suit before the General Court, having jurisdiction of the premises. It was said in Minot v. West Roxhury, that the right of the people to assemble and petition for redress of grievances was guaranteed by the Declaration of Rights, Art. XIX. The inhabitants of Brookline have the undoubted right to assemble and consult upon the common good, to express their opinions for or against annexation or change, and take such means either by address, petition, remonstrance, or through persons properly appointed, to inform the Legislature of their wishes. The Legislature may take such course in dealing with the ap- plication, and in hearing the inhabitants or their committee, as it may judge expedient and proper. The court cannot decide upon the pro- priety of such application or how it should be heard ; that is exclu- sively for the Legislature, and we have no jurisdiction over the question. It is only on the validity of the vote to raise money that we can pass, and while the committee appointed by Brookline may properly present the wishes of the town in regard to annexation before the Legislature, we do not think that this general right to address the Legislature gives b}' implication any right to tax for the expenses that the committee may incur. Nor do we think that the provisions of Gen. Sts. c. 2, § 9, imply any additional powers in the town in that respect. " Whoever intends to present a petition affecting the rights of a city or town, shall cause a copy to be served on the city or town " in the manner provided. The word " riohts" in this section cannot be held to enlar2:e existins: rights, or to give to towns any powers or privileges not already pos- COOLIDGE V. BROOKLINE. 325 sessed. The whole scope of this section, and of the preceding and following sections, relates to notice, and the phraseology must be con- strued with reference to that purpose. These sections simply provide, that when parties propose to petition the Legislature for legislative action, they shall give notice to persons or corporations who may be affected by such action. It is not impera'tive for the parties notified to appear, or take any action, nor is there any intimation in the statute what action shall be or may be taken. A hearing before a committee is not the only way that parties notified may present their views ; they may appear by remonstrance, or may assent to and join in the petition. The inhabitants of a town may do so by vote at a town meeting under the general power already stated, or by instructing their representa- tives, or may in some other manner express their opinions or wishes. There is nothing in these provisions implying that expenses may or will follow such notice by the party notified. Nor can it be presumed that parties so notified, or towns, may only oppose such petition. If any rights to act are to be inferred from such notice, it must be op- tional to the party notified to assent to or aid such petition as well as to resist it. If expenses are implied in such proceedings, the right to incur them must follow either course the town may take. But as it is settled, and was so conceded on the argument, that a town is pre- cluded from paying expenses to promote annexation upon such notice, it would seem to follow that under this notice no action could be taken by the inhabitants of the town in any way to express its assent, but only to oppose. This cannot be the construction of the statute. The notice must, therefore, be taken to be only a notice to the inhabitants of a town, for them to take such action as they may by existing pro- visions of law, and not as in any way enlarging or extending the pow- ers or privileges of the town as a corporation. There is another view of this statute, which forbids the construction that any rights are conferred upon the town. It is evidently an act framed for the convenient ordering of the legislative business, and for preparing, before the Legislature meets, the service of such notices as the Legislature might find it necessary to issue for the purpose of ob- taining proper information on the questions presented upon petition. It regulates the method in which petitions shall be presented, and does not increase or diminish the rights of parties to be affected by legisla- tion on that particular subject. For on all subjects with which the Legislature may deal upon petition, it may also deal of its own motion and without notice to parties, and it is not precluded from such action by this statute. These views are confirmed when we consider the character and usages of the tribunal to which the petition, upon which notice is to be given, is to be presented, and afford an answer to the argument of the defendants, that this money is to be expended in defence of a suit brought before the General Court, having jurisdiction of the premises. The Legislature is the law-making branch of the government. It 326 THORNDIKE V. CAMDEN. passes such laws as in its judgment the public good requires. It may legislate on any subject within its powers, whethar called to its atten- tion by petition or not. When called to its attention by petition, it may act upon it at once, or it may seek further information before acting. It may do this in many ways, at its own bar, or through its own members by debate, or by a special committee of its members for that purpose, or by a standing committee to whom such questions are usually referred. Such committee may obtain its information either from its own investigations, or by hearing parties who present them- selves, or by sending for persons and papers, under special orders of the Legislature, and paying the expenses attending such requisitions. It reports its decision to the main body, in the form of a recommendation for its action, which is passed upon after consideration and debate. The committee is in no sense a court ; there is no final decision, there is no default in not appearing before it upon the statute notice, and no rights are necessarily lost by failing to appear. The rights of parties are not litigated before such committee, and the hearing of parties be- fore it is in no sense a trial. It is simply an organ of the body ap- pointing it, to obtain information upon which they may act justly and intelligently. The proceeding has no analogy to a suit at law, and a town has no such public duty to perform, as when it is summoned to answer to legal proceedings instituted in court. We think it evident that it was the intention of this act, that notice should be given to the inhabitants of towns- of all petitions affecting their interests for the purpose of giving them an opportunity to take proper action, and communicate their wishes on the subject to the Leg- islature. But it is not to be presumed from the language of the act that it was intended to arm towns, as corporations, with the power to raise money to prevent, before the Legislature, any change in their boundaries, or rights over their territory, which it is the constituted duty of the Legislature to make, if the public good requires. The Legislature might well hesitate to give such power, not only because it might obstruct the action of the legislative body, but be open to great abuse, and obnoxious to a sound public policy. We are therefore of opinion that the injunction should issue as prayed for. Decree accordingly. ^»j^ ^1/ THORNDIKE v. CAMDEN.^^^^^^^t^^'^^*^^^^ 1889. 82il/e.39. ^^^ U ^^^^^^^^^^^ Emery, J.^ This case is presented by the defendants' exceptions \j>^ to the ruling of the presiding justice awarding judgment for plaintiff ^^^^ on an agreed statement of facts. In sibmitting a case upon an agreed^ 1 Statement of facts and argun ents omitted. — Ed. / lA<^6^ THORNDIKE V. CAMDEN. 327 statement, the plaintiff has the burden of stating all the facts necessary for the maintenance of his action. He must not depend oii inferences. Omissions will be construed against him. lu this case, we must assume that the plaintiff was the duly elected and qualified collector of taxes in the defendant town for the year 1873; — that he had a legal and sufficient warrant to collect a tax of §316, legally assessed against a party liable to taxation in said town, and styled in the warrant, " D. Knowlton & Co." ; — that he made no effort to collect said tax farther than to illegally permit them to give their note instead of the money for their tax ; — that he took the note as money, and accounted for it as money to the town treasurer; — that twelve years afterward, in 1885, the note not having been paid, the town voted under proper articles in the warrant to pay him S3 00 in consideration of the premises, the said sum to be raised by assessment. Has the town the power to impose a tax for such a purpose? Clearly not, unless the plaintiff's claim is incident to, or connected with, the exercise by tlie town of its legal powers. A town is not a b usiness or a charitable corporation. It is simply a political organiza- tion, created as a convenient agent for the performance of certain governmental duties and purposes. Its powers are almost entirely political, and are properly limited to its duties. It has only such con- trol over the citizen, and his money or property, as is expressly granted to it, or is necessary to the performance of its duty to the public. Indeed, a town is only a trustee for the public. It does not _ own the money in its treasury, nor the municipal property gene rally, bu t^only hol ds them in trust for the public, and subject to p ublic con - t rol thr ough the legislature.,, Dillon 3Iun. Corp. 61; Merrhoether v. 1?arrett^02 U. S. 472. The narrow limit of the taxing power of a town, and of its power over money paid into its treasury from other sources than town taxes, is illustrated by many decided cases. In the absence of a special stat- ute, a town cannot raise money for purposes of local defense against an invading enemy. Stetson v. Kenipton, 13 Mass. 272. Nor to build places of amusement for its inhabitants. Ibid. Nor to abate taxes. Cooley v. Granville^ 10 Cush. 56. Nor to celebrate an anni- versary. Tash V. Adanis, 10 Cush. 252. Not even " Fourth of July." Hood V. Lj/nn, 1 Allen, 103. Nor to provide uniforms for a local mil- itary company. Glaflin v. Hopkinton, 4 Gray, 502. Nor to obtain a city or town charter. Frost v. Belmont, 6 Allen, 152. Nor to oppose division of the town. Coolidge v. Brooklhie, 114 Mass. 592. West- brook V. Deering, 63 Maine, 231. Nor to pay a private fire company. Greenongh v. Wakejield, 127 Mass. 275. Nor to build a court house. Bachelder v. Epp)ing, 28 N. H. 354. Nor to build a county jail. Drew V. Davis, 10 Vt. 506. Nor to build a bridge in another town. Concord v. Boscaioen, 17 N. H. 465. Nor to aid a private cemetery association. Liiques v. Dresdeii, 77 Maine, 186. It cannot divide among its inhabitants money received from the state. Hooper v. 328 THORNDIKE V. CAMDEN. Umery, 14 Maine, 375. Nor assess a tax to pay back money volun- tarily paid into its treasury, to aid in relieving the town from military draft. Perkins v. Milford, 59 Maine, 315. Within its sphere, a town may exercise some discretion as to what claims to pay, or to contest. In the matter of schools, roads, paupers, fire engines, town-houses, &c., matters which towns are created to care for, the town may determine what claims on these accounts it will pay. The claim in suit, however, arises out of matters which are not entrusted to the control of town-meetings. It concerns the collection of public taxes. The statute (R. S., c. 3, § 46) empowers a town to raise money for specified purposes, — that is, to fix and order by vote the amount to be assessed and collected for proper town charges, — but there the discretionary power of the town seems to end. The statute gives it no control over the assessment or collection of any taxes. It is true, the statute requires the town to appoint the assessors and collectors of all state, county and town taxes to be levied within its territory, but the town does this as tlie political ngent of the state. The appointment could have been entrusted to any other agency. These officers are not corporate agents. They are public otRcers, owiiig to the public and not to the town alone, the duties imposed by statute. Only their appointment comes from the town. Their author- itj' is from the statute, and they cannot be controlled by the town in the execution of that authority. Desty on Taxation, 508, 685. State V. Walton, 62 Maine, 106. No vote of the town can relieve the assessors of any part of their statute duty ; nor can such vote control their action in any defall. The town cannot by vote increase, diminish or vary the duties which the tax collector owes to the public, nor relieve him in case of his neglect, except in the very few cases where the statute so pro- vides. There is an implication, perhaps, in R. S., c. 6, § 173, that the town may relieve a collector who has made a fruitless arrest after one year. In general, the negligent collector is dealt with, not by the town, but by other public officers clothed with authority for that purpose. The assessors are authorized by statute in certain contingencies to take his tax warrant from him. §§ 147, 149. The state, county and town treasurers may each issue his warrant of distress against a delin- quent or slothful collector. §§ 151, 152, 158. All these officers pro- ceed, not under any vote of the town but independent of it and under statute authority. It would be their duty to act, when the occasion arises, even in spite of a vote of the town. When a ta x collector has once received a legal tax warrant, he becomes chargeable with the whole amount of the tax, state, county and town. He must ac count " in money to each treasurer for the amount ordered to be paid to him. Fake v. Whipple, 39 Barb. 339 ; Gorliam v. Hall, 57 Maine, 58." This liability is not a private debt due to the town as a corporation which the corp oration liiay release. It is an official liability to^He" THORNDIKE V. CAMDEN. 329 public, which he can acquit himself of, only by executing his warrant. If he neglects to execute his warrant, his liability to pay to the treas- urers the amounts due them, is as living and binding as if he had col- lected the money. His payments to the treasurers are general, on account of the whole sum ordered to be paid each, and not particular, on any individual tax. His wa rrant comma^nds him to pa y over a cer- tain gross amount, not any particul ar taxes, to each treasurer. Any money he olHcially pa3"s the- treasurer, he pays on account of, and to diminish this gross sura, this liability, it ne De" "dilat bt^V, M^ oweT money or property "Cfin lie taken on a treasurer's warrant of d istress, and no vote of the town can restrain the treasurer or restore the money." If he be dilatory in collecting, and voluntarily pays his own money'to the treasurer without waiting for the warrant of distress to be issued, he only does his official duty, only pays what he was bound to pa}', and could be compelled to pay. If no vote of the town can restrain the treasurer from compelling payment, it would seem that no vote of the town can force him to restore what has been voluntarily paid him by the collector on account of his official liability. In neither case, does the collector acquire any right to repayment from his subse- quent omission to collect of the tax-payer. Without the execution or revocation of his warrant, the tax collec- tor seems to have no claim in law, morals, or good conscience, either to be excused from failure to collect, or to receive out of the town treasury sums he has paid under his liability though in anticipation of collection. Such a claim on its face, whatever the particular facts, does not come within the purview of town-meetings. If a town has no power to raise money from taxes, to restore a gift voluntarily made to the town by one of its citizens, as was held in Perkins v. Milford^ 59 Maine, 315, much less has it power to raise money from taxes, to restore to a public officer money he has paid to the town treasurer under an official obligation to do so. This claim is that of a public officer to be compensated for a loss suffered by his neglect of his public duty. AVe nowhere find any authority for a town to make such compensation. For a town to make such compensation to a delinquent collector, or to otherwise relieve him, would be in effect abating the taxes he omitted to collect. A, town has no pow er to abate a tax. Cooley \. Granville, 10 Cush. 56. The only tribunals authorized to grant abatements, are the board of assessors, and the appellate tribunal, the county commissioners. A town-meeting has no authority to review, modify or reverse the judgment of the assessors as to the persons or property to be taxed. Nor has it any authority to excuse a man from paying his tax, or to refund to him a legal tax once paid. To concede that a town can di- rectly or indirectly abate a tax by vote in town-meeting, is to concede the power of a town to determine who shall pay taxes, and who shall be exempt, and the consequent power to place the public burdens wholly on such citizens, as thp ^lajority shall single out for that purpose. 330 OSGOOD V. CONWAY. This court has emphatically held that a town has no such power, and that the legislature cannot confer it. Breiuer Brick Co. v. Brewer, 62 Maine, 62. If tlLejtQwjn_caQPot abate the tax it certainly canuot_ excuse the collector from collecting it. The town cannot do indirectly what it has no direct power to do. The agreed statement of facts does not disclose any legal excuse for the collector's failure to collect the tax in question. He had no concern with the ownership of the property, nor with the propriety of the tax. It is said in the agreed statement that the property meant to be taxed, belonged to, and was in the name of "D. Knowlton Company," a corpora- tion, there being no such party as " D. Knowlton & Co." It is also said, however, that " D. Knowlton & Co." gave a note for the tax, and that afterward " D. Knowlton & Co." became insolvent. There must therefore have been a party called, " D. Knowlton & Co." and it was unquestionably tlie same party as " D. Knowlton Company." The variation was simply in the name of the same party, and too slight to raise any question of identity. The agreed statement negatives the possibility of any other party. There was nothing in the matter of name, to hinder the collector a moment. Farnsworth Co. v. Randy 65 Maine, 19. The validity of the tax was not questioned. We cannot see any ground upon which to sustain the vote of the town directing the assessment of a tax upon its citizens to pay this claim. The law has not made town-meetings the courts of last resort in a matter so highly important to every citizen as the prompt collec- tion of public taxes. It does not permit the bestowal of public money upon a delinquent officer, by a friendly majority in a town-meeting. The limited power of towns over public money was well stated in Westbrook v. Deering, 63 Maine, 231. The tax-payer is by no means at the mercy of local majorities. The law carefully guards his rights and immunities, and only permits him to be taxed for lawful public purposes. It gives the courts power to afford him ample protection against the inconsiderate unauthorized actions of towns. i'TN Exceptions sustained, r, j^ ^ OSGOOD V. CONWAY." My^*^^'''^^^^^'^ 1891. 67 iV. H. 100. ^ ^.^^y^"^^^^ Bill in equity, by residents and tax-payers in Conway, against the /vs town, its selectmen, collector, and treasurer, for an injunction restrain- ^^a^ ing the defendants from assessing, collecting, or paying over money to V the representatives of the town in the legislature, for the purpose of "^ reimbursing them for expenses incurred in defeating a bill introduced ^^^ into the legislature at the January session, 1891, for a division of the town. The representatives of the town employed counsel and pro- -^ KELSO V. TEALE. 331 cured the attendance of witnesses, without autliority from the town, in opposition to the measure. At the annual town-meeting, held on the second Tuesday of March, 1891, after the expenses had been incurred in opposition to the division of the town, a vote was passed appro- priating a sum of money to pay for those expenses. Per Curiam. [Doe, C. J.] It is unnecessary to consider the ques- tion whether the town, as a corporation, had the power to employ agents to represent it before a legislative committee in opposition to the proposed change in its territorial limits. If the existence of such a power is admitted, the parties who incurred the expenses in question were not the authorized agents of the town for that purpose. As rep- resentatives to the legislature they had no authority to bindthe town by contract. JNor does it appear that the}^ assumed to act in behalf of the town. As citizens of the town they were interested in the pro- posed legislation, and there is nothing in the reserved case indicating that they were not engaged in the defence of their individual interests. But if their services cau ^ia,„anY view, be said to be beneficial to the town in its corporate capacity, they were rendered gratuitously, and imposed upon it, at most, only a moral obligation to pay for them. French yTBentoJ^y 44 N. H. 28 ; Butler v. Charlestown, 7 Gray, 12. The vote of the town appropriating money to pay for these services, if deemed equivalent to a promise to pay for them, did not bind the town, since it was not supported by a legal consideration. A promise to pay for services voluntarily rendered without the request or author- it}^ of the promisor is not enforceable, although they may be bene- ficial and valuable to him. Wilson v. Edmonds^ 24 N. H. 517; Hall V. Hall, 44 N. H. 293, 296; Lebanon v. Griffin, Ab N. H. 558; Bux- ton V. Cliesterfiekl, 60 N. H. 357 ; Kerd v. Rand, 64 N. H. 45 ; Earle v. Coburn, 130 Mass. 596; Bartholomew v. Jackson, 20 Johns. 28. As the town did not become legally liable to pay for the services under either an express or an implied contract, the imposition of a tax upon its citizens for that purpose would be unauthorized and illegal. Jr^ Y ^ Decree for the plaintiffs. KELSO V. TEALE. ^^ \ ;\^ ^ 1895. 106 Cal 477. /*^ Belcher, C.^ This is an appeal from a judgment of the superior court of Los Angeles county, directing the issuance of a peremptory ^ ''^\njtoX mandate commanding the appellant, as city auditor of tlie city of Los Angeles, to number and record a demand which had been duly ■j-/^approved and allowed by the board of directors of the Los Angeles Public Library. ' Part of tlie opinion is omitted.— Ed. 1 4^, . _ _ '" ■ 332 KELSO V. TEALE. The charter of the city of Los Angeles makes provisions for a pub- lic library, which is to be managed by five directors, known as the "board of directors of the Los Angeles Public Library." Stats. 1889, art. VIII, p. 456. By section 86 the board is given power, among other things, to ap- point a librarian and necessary assistants, and such other employees as may be necessary, to control and order the expenditure of all mone3'S at any time in the library fund, and order the drawing and payment of all moneys out of said fund for such expenditures and liabilities as are authorized, subject to the general provisions for the payment of de- mands on the city treasurer contained in article XXI, and generally to do all that may be necessary to carry out the spirit and intent of the charter in establishing a public library and reading-room. The demand in question was for two hundred dollars, which sum, by a resolution passed June 6, 1893, was appropriated by the board of li- brary directors on account of th e exp egsg^of a delegate representing the library at the World's Congress of Librarians and to the American Library Association Conference, to be held from the 10th to the 24th of July^J ^S^,^ Appellant further contends that, under the provisions of the charter, the directors of the library had no right to make such an appropriation from the library funds as that here in question. And it is said : " The benefits to be derived by the tax-payers and patrons of the library from what might be learned by a delegate to a congress of librarians are too remote, too speculative, too chimerical, to make the expenses of such a delegate a legal charge upon the public funds." But the question of benefits to the library and its patrons from an expenditure like that here involved was one to be determined by the directors in the first instance ; and, it-tji^.e could be any sta te of _cir;^ cumstanccs under which such an expen diture would l)e authoriz ed, it nni.^t be presumed that such a state was shown, and w:ts consi dered and acted upon by the directors when they made the appropriation. The board was authorized "to control and order the expenditure of all moneys at any time in the library fund," and "generally to do all that may be necessary to carry out the spirit and intent of this charter in establishing a public library and reading-room." In view of the action of the board and of the court below, we can- not say that the appropriation, under the circumstances shown, was not justifiable and proper. No other points are made, and in our opinion the judgment should be affirmed. For the reasons given in the foregoing opinion the judgment is af- firmed. '" POLICE PENSION FUND ASSOCIATION V. WALTON. 333 r>^ COMMONWEALTH ex rel. CITY OF PHILADELPHIA POLICE . . u^ PENSION FUND ASSOCIATION v. WALTON. 1897. 182 Pa. 373. Sterrett, J.i In the relator's petition for the alternative writ, it avers among other things that it is a coiporation, created by and ex- isting under the laws of this state, whose objects as defined by its charter are to accumulate a fund from the dues of its members, from legacies, bequests, gifts and other sources, with which to pay pensions to members of the association and to families of deceased members ; that its membership is twenty-three hundred and eighty-six (2386), including the director of public safety, the superintendent of police, all the pohce captains and lieutenants, two iiundred and thirty-six (236) sergeants, two thousand and thirteen (2013) patrolmen, sixty- seven (67) patrol and van drivers and thirty (30) employees of the electric bureau; that it pays pensions^to members who have become permanently inc apacit a,tej[ by rejiaon of. injuries received in the per- formance_of actual dut^^o members who have served fifteen j^ears, whatever may be the cause of incapacity (excepting cases in which it results from the member's own vicious habits), to members who have served twenty-five years, and. to the widow or children or dependent parents oF~a hiember killed in the discharge of his duty, etc. ; that in 1895 an ordinance was passed by the councils of said city of Philadelphia and approved by the mayor appropriating ten thousand (§10,000) dollars for the charter purposes of said Pension Fund Association ; that in January of that year a warrant for the payment of said sum was duly drawn by the directoi; of the department of public safety and presented to the then city controller, who refused to countersign the same ; that his successor in office, — the present controller, — being unwilling to overrule the decision of his predecessor, declined to countersign the war- rant ; and praying that an alternative man daiji.ji s issue, etc. In the city controller's return to the alternative writ all the facts re- cited in the petition are virtually admitted. The only reason he gives for his refusal to countersign the warrant is that the appropriation was to an association or corporation ; and is in violation of law and of section 7 of article IX, of the constitution which reads thus: "Thej ^ general assembly shall not authorize any county, city, borough, town- Jj^jja^v t'^ ship or unincorporated district to become a stockholder in any com-/ ^^ ^ pany, association or corporation, or to obtain or appropriate moneyf ^ i for or to loan its credit to any corporation, association, institution on ' individual." In support of the demurrer to this return the following reasons were assigned : (1) the return admits facts which show that the relator is ~ , 1 Arguments omitted. — Ed. 334 POLICE PENSION FUND ASSOCIATION V. WALTON. rXjJTMM entitled to relief; (2) it discloses no legal ground for refusal to counter- sign the warrant, and (3) the respondent has neither set up nor offered any matter or thing to defeat the right of the relator as disclosed by its petition. The refusal of the court below to sustain the demurrer, and the entry of judgment thereon for the defendant, constitute the subjects of complaint in this appeal. WW4^ It is unnecessary to even outline the history of the constitutional prohibition above quoted. It had its origin in the amendment of 1857, which was prompted by the growing evils of reckless and extravagant ■ jy,.«vHJ"iiicipal subscriptions to railroads, plank roads, etc. Those evils were so aggravated that it became necessary to interfere and prevent by a constitutional prohibition all future pledges of municipal faith and property for such purposes under the sanction of the legislature, which alone possessed the power to grant the proper authority : Rail- road V. PJdladeljjhia, 47 Pa. 193; Speer \. School Directors^ bO Vo.. 163; Brooke v. Philadelphia, 162 Pa. 126. In Speer v. School Directors, snpra, it was held ' ' that money paid to save a community from a (military) draft is not obtained for a party or individual, but is a direct appropriation to a public purpose and that raising money by the ordinary powers of borrowing and tax- ation for a common purpose, affecting the interest, happiness and wel- fare of a community, is not obtaining money or loaning credit to any party within the terms of the amendment." It is evident from an examination of our cases on the subject, that no strictly legitimate municipal purpose was intended to be prohibited. The evident purpose of the prohibition was to confine the municipal- ities to the objects for which they were created and to restrain the ^^^.^.-w-r legislature from authorizing any perversion of them. By the act of ^ (jJ^A^^-'^^Iarch 17, 1789, wliich appears to be still in force, the city councils of /Philadelphia " Jiave full power and authority to make, ordain and es- / tablish such and so many laws, ordinances and regulations as shall be / necessary for the welfare a nd comfort of the city." We have no right I to assume, nor is there anything from which it may be fairly inferred that the constitutional prohibition in question was intended to revoke or curtail any of the powers or authorities with which the city councils ^ were theretofore invested by the comprehensive grant above quoted. It is not even sugg ested that a reasonable appropriation by councils for the creation or maintenance of a police ])ension fund is not an appro- M j^v*/*itW^j prlation to a strictly municipal use, and " necessary for the wi If tMi;ire and comfort of the city." A judiciously administered pension fund is doubtless a potent agency in securing and retaining the services of the" most faithful and efficient class of men connected with that arm of the municipal service in which every property owner and resident of tlie* city is most vitally interested. Reasons in support of this proposition need not be stated in detail. They are such as readily suggest them- selves in every reflecting mind. KELLY V. PITTSBUKG. 335 But, aside from the general charter authority of councils to make such appropriations, and aside from any question of expediency or propriety in their doing so, this case might well be disposed of on the ground that the constitutional prohibition relied on by the defendant is inai)plicable to councils. In Indiana Co. v. Agricultural Society, 85 Pa. 357, this court held that the section in question "deals only with legislative power That power is thereby limited and re- \)(is^ CfiWX' stricted. It declares what the legislature ' shall not ' do. It annuls nothing that it had done. It forbids such legislation thereafter. It struck down no law. Its prohibitions were wholly prospective." It is "tfi^JL Ou;i ()! distri1)ut sioii Fund .Vssociation, the sum a[)pr(j[)i'i:ite(l to the "Philadelphia Pol ce Pen-/ If they we ha^ e seen, the association was incorporated for the express pur- ^^"^""^ pose of administering such funds on just and equitable principles. If \-\\ . ^-o—.,"^ it should attempt to divert any of the funds to improper purposes Ca^vJ^IajU ample redress could be had by application to the proper court. \J^ ■ It follows from what has been said that the demurrer should have been sustained, and a peremptory writ awarded as prayed for. Judgment reversed, and judgment is now entered in favor of the plaintiff on the depiurrer, and peremptory writ awarded as prayed for. instead of distributing it themselves were satTsfied, as they doubtless were, that the distribution of the fund would be" better effected through the agency of the association than by anagcDey of their own creation, they had a right to so provide. As ■W y^<\j^ COMMONWEALTH ex rel. KELLY v. PITTSBURG. 1897. 183 Pa. 202. The relators secured an appropriation from councils of the city of Pittsburg for a survey for a ship canal from the Ohio River to Lake Erie. They then made contracts and expended money on faith of the appropriation. The controller refused to authorize a warrant, on the ground that the appropriation was illegal. This is a petition torman- dam?/s_ to compel the controller to certify a warrant.^ '*— — " Per Curiam. . . . The appropriation was a very reasonable one ; and the purpose for which it was made was certainly not foreign to the material interests and general prosperity of the municipality, but quite the contrary. "We are therefore of opinion there was no error in hold- ^This short statement is abstracted from the opinion of the lower court. An ex- tract from the opinion of the Supreme Court only is given. — Ec 1^1 V-l — ^ T "*s4i^it- 336 WATERS V. BONVOULOIPv. ing that councils had the power to make the appropriation, and that good faith to the relators and others who acted in reliance thereon re- quires that the sum thus appropriated should be paid. Decree affirmed and appeal dismissed at appellants' costs. WATERS V. BONVOULOIR. ^^ 1899. 172 Mass. 286. Field, C. J. This is a petition brought under Pub. Sts. c. 27, § 129, \)^ ten taxable inhabitants of the city of Holyoke t o restrain the de- '^B^ fendant as city treasurer from pajnng money out of the treasury of the) city in accordance with an appropriation of five hundred dollars, made "^ on the recommendation of the mayor by the board of aldermen, by a ^* vote of 16 yeas to 5 nays. The appropriation was from the contingent fund to defray the expenses of a commi ttee consisting of the ma3'or and four aldermen in attending a convention of American Municipali- ties at Detroit, Micliigaii",'^vheFe subjects pertaining to tEe"administra^ tion of cities were to be discussed, and which the city of Holyoke had received an invitation to attend. This convention was under the charge of the League of American Municinalities, whose constitution provided that its objects were : " First, the perpetuation of the organ- ization as an agency for the co-operation of American cities in the practical study of all questions pertaining to municipal administration ; secondly, the holding of annual conventions for the discussion of contemporaneous municipal affairs ; thirdly, the establishment and maintenance of a central bureau of information for the collection, com- pilation, and dissemination of statistics, reports, and all kinds of in- formation relative to municipal government." The charter of Holyoke is St. 1896, c. 438; the last part of § 13 of that chapter is as follows : " The board [of aldermen] shall, so far as is not inconsistent with this act, have and exercise all the legislative powers of towns and of the inhabitants thereof, and shall have and ex- ercise all the powers now vested by law in the city of Holyoke and in the inhabitants thereof, as a municipal corporation, and be subject to all the liabilities of city councils, and of either branch thereof, under the general laws of the Commonwealth, and it may by ordinance pre- scribe the manner in which such powers shall be exercised. Its mem- bers shall receive no compensation for their services as members of the board of aldermen, or of anj' committee thereof." Section 14 is as follows: " Neither the board of aldermen nor any member or commit- tee thereof shall directly or indirectly take part in the employment of labor, the making of contracts, the purchasing of materials or supplies, the construction, alteration, or repairs of any public works, buildings, or other property, or the care, custody, or management of the same ; or ^j^;«^ -i^U u '«- * '■' ^'-^ ' - Q. 1 WATERS V. BONVOULOIR. 337 in the conduct of any of the executive or administrative business of the city, or in the expenditure of public money, except as herein otherwise provided and except such as may be necessary for the contingent and incidental expenses of the board of aldermen ; nor in the appointment or removal of any officers except as is herein otherwise provided. But nothing in this section contained shall affect the powers or duties of the board in relation to city aid to disabled soldiers and sailors and to the families of those killed in the Civil War." Section 23 is as follows : "Xo member of the board of aldermen shall, during the term for which he is elected, hold any other office in or under the city government, have the expenditure of any money appropriated b}'^ the board of aldermen, or act as counsel in any matter before the board of aldermen or any/ committee thereof ; and no person shall be eligible for appointment! to any municipal office established by the board of aldermen during any municipal year within which he was an alderman, until the expiration of the succeeding municipal j^ear." The question is whether the appropriation of five hundred dollars from the contingent fund t~pay the expenses of the committee to the l!uuveuUun of the ATnericnn ^Municipalities at Detroit, is authorized by xhe generalTaws with reference to towns and cities, or by the charter of ihe cii}' of Holyoke. Pub. Sts. cc. 27 and 28, and the amendments thereof, define the powers of towns and cities, and city councils. The appropriation shown in the present case is not for the payment of " ne- V-^w. , ..... cessary charges" within the meaning of Pub. Sts. c. 27, § 10. Neces-|,, , .dw'o.,^^^ s ary charges are co inlm-d to matters in which a town or city has a duty , to perform, an interest to protect, or a right to defend. Minot x. \ West Eoxhnry, 112 Mass. 1. Coolidge v. J^rookJine, 114 Mass. 592. SpaiddingY. Peahodij, 153 Mass. 129. Sicift v. Falmouth, 167 Mass. 115. Pub. Sts, c. 28, § 13, is as follows : "The city council of a city may, by a yea and nay vote of two thirds of the members of each branch thereof present and voting, appropriate money, not exceeding in any one year one fiftieth of one per cent of its valuation for the current i , S-*^ year, for armories for the use of military companies, forjhe celebra,H ' "•'*^*°*^ tion of h oliday s, _and for other public purposes." It is contended thatj ^^ the appropriation shown m the present~case is for " other public pur- •' ' poses," within the meaning of this section of the statutes. The ap- pointment of a committee "to represent the city of Holyoke at the Convention of American Municipalities to be held at Detroit, Mich., from August 1st to 4th, inclusive," does not seem to be for any distinct '^^'^'^^jfr^. * public purpose within the meaning of the charter of the city or of the V^'^^ j general laws. The purpose a pparently is to educate the committee i^*'^ ' ' " ' generally with reference to all questions pertaining to municipaladM minist ration anywhere. ' It is not confined to the ascertainment of faet.s • for the information of the hoard of aldermen of tlie city of Ilolvoke \ con^rning questions actually pending before the board. There is' .... nothing in the statutes of the Commonwealth which authorizes the city ' --.-._ V ( <{.. 338 JAMES V. SEATTLE. of Holyoke to become a member of the League of American Munici- palities, and the attendance of a committee made up of the mayor and certain members of the board of aldermen upon any meeting of that League is for the purpose of listening to or taking part in general dis- cussions concerning municipal administration. The general education of the mayor and aldermen upon all matters relating to municipalities in the United States and Canada is not, we think, a public purpose, and cannot be paid for out of the funds of the city. An injunction should be issued as prayed for. ^ So ordered. JAMES V. SEATTLE 1900. 22 Wash. 654. Reavis, J.^ In October, 1898, the city council of Seattle passed an .^ ordinance providing, " that a special committee consisting of the '^^ whole membership of the city council, or so many members as may be ■qj able to serve, and such executive officers as may be chosen by the city uJ council, be and hereby are appointed to visit the cities of Duluth, '^^^ West Superior, St. Paul and Minneapolis, Minn., Great Falls, Mont., ^^^ Spokane, Wash. , and such other cities as may be deemed advisable by said committee, for the purpose of securing information upon the ^^ matters referred to in the preamble of this ordinance." The mat- f-, ters referred to in the preamble were "waterworks, street paving, street lighting, terminal facilities, and other municipal matters which ^ are now, and constantly will be, coming before the legislature and executive departments for consideration." The appellant, with other members of the city council and some other city officers, in October, 1898, visited St. Paul, Minneapolis, Duluth, West Superior, and Spokane, for the purpose of investigating and securing information concerning the matters mentioned in the preamble of the ordinance, and made necessary expenditures for his transportation, board, and lodging. In November, 1898, he filed with the secretary of the audit- ing committee his claim against the city for such expenditures. The claim was duly and regularly audited, reported to the council and ap- proved, and an ordinance adopted directing a warrant to be drawn for appellant's claim, with others, and appropriating money from the general fund to pay the same. The warrant was drawn in appellant's favor for the amount, and signed by the mayor. But the respondent Parry, city comptroller, refused to countersign the same, and the de- fendant city refused to deliver the warrant to appellant. The suit was brought to procure a peremptory writ of mandate to compel the re- spondent Parry, as city comptroller, to countersign and to compel the 1 Arguments omitted. — Ed. ^ . JAMES V. SEATTLE. 339 city to deliver to plaintiff the warrant. The respondents demurred to the affidavit for the writ on the ground that it does not state facts sufficient to constitute a cause of action, or to entitle plaintiff to the relief therein prayed for. The d emurre r was sustaine d, and the appeal is from the order sustaining the demurrer and the judgment entered in favor of respondents. It is urged here by counsel for appellant that the comptroller is a ^l , (y^^y^ ministerial ofl^cer and has no discretion in the discharge of his duties. >vv*^' The city charter provides that he shall countersign all warrants upon the treasury. Several authorities are cited to support appellant's con- tention. The case chiefly relied upon is that of McConougJiey v. Jack- ^^**''»"^''-'^-^ son, 101 Cal. 265, 3o Pac. 863, 40 Am. St. Rep. 53. In that case the plaintiff applied for a writ to compel the city clerk to issue a warrant for a claim for expenses incurred by him in procuring, at the request of the city, through the trustees thereof, counsel and legal services for the city. The bill was approved by the trustees and 'ordered paid. One of the defenses set up by the clerk was a denial of the indebted- nesses. With reference to this the court observed : "The law has not constituted the clerk either the guardian of thet ^^' board of trustees or an appellate court to pass upon the facts oncel tils^^^ vv^ ^decided by the board. The chihn was one which the board of trustees \ ^(^l , f ^ TTad jur isdiction to liear and determine. Such determination was aT j^ "" rj judicial ac t, and involved a determination of the fact of indebtedness, J r,^XZ>^ and when so determined, whether right or wrong, its action was bind- ' (5v,«^^ ing upon the clerk." \7■^^**'* Counsel maintains that the subject of waterworks, street paving, street lighting, terminal facilities, and other municipal matters comes within the control of the city council, and that members of the council are bound to use their best endeavors in behalf of the tax-payers, by giving them the best results in the most economical manner, and that it is the duty of councilmen to inform themselves concerning all mat- ters which come before them, that they may act intelligently for the benefit of the city. It is true, the members of the city council owe the public duty to the city to exercise their best faculties in its interest. The compensation of a member for his official duties as councilman may be determined and fixed, and cannot be changed during his incum- bency of office. Ifjh e mem bers of the council, upon their tour of in- spection, w ere in the discharge~of~thelr official' clu tie s7"the restriction upon additional compensation applies. Takoma v. LiUis, 4 Wash". 797, 31 Pac. 321, 18 L. R. A. 372. The only ground, then, upon which compensation could be sustained, would be that of necessary expenses incurred in the performance of official duties. Necessary expenses must be such as are strictly esseu- tial to m unicipal purposes. This principle is well established. 1 Dil- lou, IMunicipaT Corporations (4th ed.), §§ 89-91 ; 19 Am. & Eng. Enc. of Law, 541. Judge Cooley, in his work on Taxation, p. 209, observes: Urj. 340 POTTS V. CAPE MAY. "In the construction of any grant of the power to tax made by the state to one of its municipalities, the rule which is accepted by all the .authorities is, that it should be with strictness. The reasonable pre- sumption is held to be, that the state has granted in clear and unmis- takable terms, all it has intended to grant at all ; and whatsoever authority the municipal officers assume to exercise, they must be able to show the warrant for in the words of the grant." And we think the rule thus announced is the established one, and in consonance with all sound authority. The members of the city coun- cil are trustees. The body holds a trust for the inhabitants of the city. The terms of the trust are fixed by legislation, and no expenditure of money belonging to the city can be made without express authority, or implied authority by reason of a necessary granted power. Where this authority does not exist, the council is without power to authorize the payment of the claim against the city; and, upon sound principle, it cannot be conceded that the council had the power to authorize the payment of the claim of appellant. To the objection that the comptroller cannot defend against the suit, it is sufficient answer that the other principle has been established by this court. Chalk v. White, 4 Wash. 156, 29 Pa. 979. Where the cou qi. cil is without power to authorize the payment of the claim, the offi; cei"" niay properly refuse to countersign the warrant directing the payment of sucli claim. The judgment is affirmed. Dunbar, C. J., and Fullerton, J., concur. Anders, J., not sitting. «^^;< ^I^ POTTS V. CAPE MAY. ^ X.^) ^ 1901. 66 N. J. Law, 544. ^^*V^' Fort, J. The writ in this case brings up two resolutions of tne city ^ council of the city of Cape»May. Jc^ The first, adopted November 23d, 1899, reads as follows: " Whereas, we, the city council assembled, feel that the city of Cape h-^ May has not or is not properly represented in an advertising or general j, way, and we think it is very important that our city, as a resort, be' / 7^ placed before the people at large ; now therefore, be it Kr-^ " '■'^Resolved, That Mr. L. E. Miller be appointed to represent this city, with the understanding that no contracts shall be made whereby the city be obligated without first the consent of this council." The second, adopted August 7th, 1900, reads as follows: ' ' Resolved, That the city solicitor is instructed and hereby author- ized to make the best possible compromise with Lemuel E. Miller for his claim against the city." /, ^ POTTS V. CAPE MAY. 341 Mr. Miller seems to have entered upon the duties designated in the resolution adopted November 23, 1899, and he subsequently, it ap- pears b}' the record, presented a bill against the city for services, upon which, it not being paid, suit has been instituted. It was this claim in suit which the resolution of August 7, 1900, authorized the city solicitor to compromise. The prosecutors are residents and tax-payers, and challenge the power of the city council to pass the resolution in question, or to incur expenses of the character indicated. It is .conceded that no statute expressly confers upon the city council the power to appoint Miller for such a purpose. The city of Cape May is incorporated by a special charter enacted in 1875. Pamph. L., p. 206. It is undisputed that the city charter does not authorize the appoint- ment of Mr. INIiller, unless the authority can be gathered or implied from the language of sections 9 or 20, or both. \ . - Thr.t the re is no implie d power in a municipal council to employ \ "^ ^'^"""''^[^^ persons to do work outside of duties germane to city government T>^ ^■w-^/^J'^ cannot be questioned. It is equally true that municipal powers are to '"^ VAnrvW' be strictly construed, and where doubtful held not to exist. 1 Dill. ' ^>*^Vv^ Mun. Corp., §§ 89, 91 ; Willard v. Killingtvorth, 8 Conn. 247; 3fayor r^ ^ V. Yuille, 3 Ala. 137; Minturn v. Larue, 23 How. (U. S.) 435; Ottawa V. Carey, 108 U. S. 110. Is there anything in -section 9 or the other provisions of the city charter broad enough to be held to cover the engagement of a person to advertise the city, in a general way, " as a resort before the people at large " ? Section 9 of the city charter authorizes the appointment of " such ^| '^a t other and all subordinate officers of the said city," whether named in ^ . ^ i- ' the act or not, as " ma}', in the opinion of the city council, be necessary ^'^'^f^ ^^^^ for the better ordering and governing the said city, for the preserva- tion of its health, or for the c onvenie nce, safety and advantage_qf. commerce and trade." ~~Tn^connection with this section of the charter another clause should 'tv-*— < be quoted, and that is the last clause of section 20, which declares that "the city council shall have power to make and establish such ordinances, regulations, rules and by-laws ... as they may deem C^*'^^'^'"'" necessary and proper . . . for the prospgiity of the^said.city and^^i^ •«?& -L,. inhabitants, and the same to alter, modify and repeal." vVi <^>CA^• We do not think the provisions of the city charter, above quoted, are broad enough to cover an engagement of a party to perform the services indicated by the resolutions brought up by the writ and the bill of Mr. Miller as presented to the city council, as found in the record. T he it ems of the account rendered by Mr. IMiller clearly demonstrate tha t the duties he did, and which evidently he thought he was engaged to perf orm, consisted in going to Philadelphia and entertaining persons i ,-■ ,-- there, and at Cape May, at dinner and the like. The dinners being \ v.-^ ^-^ ,1^ 342 MATTER OF CHAPMAN V. NEW YORK. given to persons whom he might think able to " boom " the city, or bring custom to it by way of shortened or speedy transportation. The evidence would seem to indicate that the chief efforts of Mr. ^WUcaA-i Miller were directed to securing advantages for the Cape May and I^LAJ^^^J^ New Jersey Coast Steamship Company, in which he either was then or very soon after largely interested, as his testimony shows. The power to appoint city officers in the ninth section gives authority to appoint as city officers only such officers as " may be necessary for '^^ the convenience, safety and advantage of commexcfi^and trade. '' That ^P^ means commerce and trade within the city — the regulation and direc- ■*^*^**^ tion of commercial affairs within the city; such officials as may be necessary within the city to promote convenience, secure safety and be to the advantage of commerce and trade of the inhabitants. Nor clo we think that the general welfare clause in the tv.entieth section of* the charter, which permits the city to adopt regulations, &c., for the " prosperity of said city and its inhabitants," furnishes authoritj' to engage a man for the purposes for which Mr. Miller was engaged". The twentieth section only authorizes the employment of officials "for" the preservation of the public health and prosperity of said city and its inhabitants." This clause cannot be extended to embrace officers, as city officials, who are to be engaged in matters entirely aside from city duties, within the purview of the city government. ( v* If it is within the power of a city council, under a general welfare \t ' <|clause of this character, to appoint and pay an officer to travel, ad- ^ '• jvertise and canvass for custom and sojourners, it is equally within their power to engage in various enterprises which they may think will bring advantage, by way of commerce or trade, to the city. Such powers will never be inferred ; if they are found to exist it must be because of some express provision of the city charter by which they are clearly conferred. The resolutions brought up are ultra vires the municipality and are set aside. ^^"T^ v MATTER OF CHAPMAN v. NEW YORK. ' ^^ A 1901. 168 N. Y. 81. ^'^^'^-ff*'?*:, ^ Vann, J. The statute under which this proceeding was instituted" P provides for the appointment of a referee "to hear, examine into and ' n^ report " the amount of reasonable counsel fees and expenses paid otSaS incurred by a city or county officer in successfu lly defending himself in any trial or proceeding " to remove him from office or ... to con- "^ vict him of any crime" alleged to have been committed " in the per- '" '^ formance of or in connection with his official duties," and that the ')^ amount allowed by the referee, when confirmed by the court, be paid *H.i by the issue of revenue bonds to be included in the taxes levied for ^ MATTER OF CHAPMAN V. NKW YORK. 343 the following year in the city or county affected. L. 1899, oh. 700. Another part of the act provides for the payment of similar claims by the state ; but, as the validity of that part is not involved in this ap- peal, no further allusion need be made to it. _^'- While other questions have been discussed before Us, the maiii^;^::^^^'^*''^^ question is whether the legislature had power, under the Constitution^:? "fit of our state, to pass this statute. That question has been passed upon/- —-^^^jjcAcI several times by the Supreme Court, and the conclusion reached by every judge who considered it is that the statute is unconstitutional. Matter of Straus, 44 App. Div. 425 ; JJatter of Jensen, 28 Misc. Rep. 379 ; affd. , 44 App. Div. 509 ; flatter of Chapman, bl App. Div. 582 ; Matter of Fallon, 28 Misc. Rep. 748; Matter of Labrake, 29 Misc. Rep. 87. Our examination has led us to the same result, and, as the discussion of the subject has been so thorough and. able in the courts below, it is necessary for us to do little more than announce our conclusion. In a case which arose under the Constitution of 1846 before it was amended, expressions were used by learned judges of this court which went beyond the requirements of the decision they made. Ihiun of Guilford \. Bd. of Supers., Chenango Co., 13 N. Y. 143. All that was actually decided was that the legislature had power to require a board of supervisors to assess upon the taxable property of a town the amount which highway commissioners had been compelled to paj' for costs in an action commenced by them pursuant to the direction of the voters of the town. The payment of such a claim was not an act of It was, however, charity, as it rested on a strong moral obligation . \ declared in one of the opinions that " the Legislature has the right to appropriate the public moneys for local or private purposes, and to im- pose a tax upon the property of the whole state or any portion of the state, or any particular or specified kind of property." In another opinion it was said: "The Legislature is not confined in its appro- priation of the public moneys or of the sums to be raised by taxation in favor of individuals to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice in the largest sense of those terms or in gratitude or charity." Subse- quent cases, following the dicta rather than the decision, led to results which, as it is said, induced the jDCople in 1874 to amend the Consti- tution by adding sections ten and eleven to article eight. Section 11 was amended in 1884 by adding further provisions, and the substance of both sections appears in the revised Constitution of 1894. Art. 8, sections 9, 10. Section nine is not now important, as it relates to the giving or lending of the credit or money of the state, but section ten makes it a part of our fundamental law that " no county, city, town or village shall hereafter give any money or property, or loan its money I or credit to or in aid of any individual, association or corporation, . . . | nor shall any such county, city, town or village be allowed to incur any iu debtedpess except for count}-, city, town or village purposes." . '^-' 'kXv ■*> ^JW^-V.^-o-iC< /><^^.-*>c- •'Tv 344 MATTER OF CHAPMAN V. NEW YOEK. It has been held that this provision does not prevent the legislature from authorizing the payment by a municipal corporation of a claim which, although it could not be enforced by the courts, is founded in justice, supported by a moral obligation, and could have been legally created if the proceedings of the local authorities had been regular. WrougJd Iron Bridge Co. v. Toivn of Attica, 119 N. Y. 204-211. So it may be argued that payment of a claim otherwise valid, but against which the Statute of Limitations bad run in favor of a municipal cor- poration, or of one for money expended or services performed for the benefit of a city without lawful authority, might be authorized or re- quired by the legislature. Neiv Orleans v. Clark^ 95 U. S. 644 ; Friend v. Gilbert, 108 Mass. 408; Brewster v, Citi/ of Syracuse, 19 N. Y. 116; Brown \. Mayor, etc., of N. T., 63 N. Y. 239; 3Iayor, etc., ofN. Y. v. Tenth Nat. Bank, 111 N. Y. 446. If a legal liability to pay once existed, but has been suspended or barred in some techni- cal way short of substantial satisfaction, a moral obligation to pay still exists, which is recognized both by statute and common law. Code Civ. Pro. section 395; Tebbetts v. Dowd, 23 Wend. 379-382; Buswell's Stat, of Lim. section 36. In the case before us, however, no benefit was conferred upon the ' city, and there was never a legal or moral"ol5TTgation oh Ihe pa'rT'of "the__ cityto i)rty the claim in question. For time out of mind, in all gov- ernments where the common law prevails, a person pi-osecuted for crime has been compelled to pay his own expenses when he had the means of~doing so. Peojjle ex rel. Brown v. Bd. ofSiqyt/is., Onondaga Co., 4 N". ,Y. Cr. Rep. 102 ; affirmed, 102 N. Y. 691. If without means, the counsel /assigned by the court served without pay, except under a recent stat- ic ute a moderate allowance may be made in a capital case. L. 1897, \h. 427 ; Code Cr. Pro. section 308. This e^cegtion is founded on the theory that a fair trial cannot be had without the aid of counsel, and that money paid from public funds to counsel appointed by the court for a prisoner without means, is paid for a public purix)se. The proceeding instituted against the appellant was not a prosecution for crime, but to discipline or remove him for misconduct as a public officer. There was no authority, statutor}'' or otberv/ise, to appoint counsel to defend him, and no attempt was ma.de to do so. It was necessary for him to employ and pay his own counsel, as has always been the case with others similarly situated. Payment of his expen- ses by the public would be a mere gratuity, and without the sanction of custom or precedent. There was no moral obligation on the part of the respondent to discharge such a claim, for it had no foundation in natural or legal right. It is not the duty of the p ublic to defend or aid in the defense of one charged with official misconduct. The history of morals or jurisprudence recognizes no such oTStigatfon. When a citizen accepts a public office he assumes the risk of defending himself against unfounded accusations at his own expense. AVhoever lives in a country governed by law assumes the risk of having to defend him ^■?«-*^ M K7. A.fi afterwards sued Greene and Luippold for malicious prosecution and ^'^.^^ false arrest. Greene and Luippold were put to expense in defending ^Ts^*^ the action, and, at the annual town meeting held in March, 1907, under 7^ an article in the warrant to see if the town would vote to reimburse cg^ Greene and Luippold for the money expended by them in defending / the action brought by O'Hara, the town voted to expend $200 there- ^-^ for. Thereupon this petition was brought under R. L. c. 25, § 100, / by more than ten taxpayers of the town of Middleborough to restrain "^c the payment of the money so voted. The case was heard upon agreed facts and the presiding justice ordered the petition to be dismissed and reported the case to this court. If the town had no right to appropri- ate the money, a permanent injunction is to issue; otherwise the peti- tion is to be dismissed. Towns cannot raise and appropriate money except for the purposes for which, within the scope of the Legislature's constitutional powers, they are expressly or by fair implication authorized by statute to raise and appropriate it. This results from the nature of and limitations upon their powers in our scheme of government. There is no express provision authorizing towns to raise and appropriate money for such a LEONAED V. MIDDLEBOEOUGH. 349 purpose as that for which the money was appropriated in the case be- fore us. R. L. c. 26, § 21, in relation to the indemnification of police officers and firemen, applies to cities and not to towns But the stat- ute giving towns power to appropriate money provides that, in addition to the cases therein specified, towns may raise and appropriate money "^for_jill other necessary charges arising in such town." R. L. c. 25, § 15. This has been construed to authorize a town to raise and appro- priate money in r('^>i)ec't to matters where it has a corporate duty, fight or interest to perform, defend or protect.^ Ifixony. Sharon, 190 Mass. 34/. Flood v. Leahy, 183 Mass. 232. Vincent v. JVantucket, 12 Cush. 103. The question, then, is, whether the town of Middle- borough ha, d su ch a corporate right, duty or interest in regard to the enTorcement of the law concerning the sale of intoxicating liquors within its lim itc, as to warrant it in appropriating money to indemnify a special police officer and a constable who had been subjected to ex- pense by reason of an action brought against them in consequence of complaints made by them for the purpose of enforcing the law. We tETnk that it bad. Under the present system in regard to the sale of intoxicating liquors in this State, the question whether such liquors shall or shall not be sold in any city or town is wholly one of local determination. This is on the ground that the matter is supposed to be best dealt with as one of local concern, and that the citizens of such city or town have a spe- cial and peculiar interest in it and should therefore be left to decide it for themselves, as in the case, for instance, of what roads or streets they will have. This of itself, in view of the way in which cities and towns are or may be affected, would seem to give a town such a cor- porate interest in the enforcement of the law as to warrant the appro- priation in question. But in Dunn v. Framingham, 132 Mass. 436, it was held that selectmen acted in the enforcement of the law relatins: to the sale of intoxicating liquors, not as public agents, but as agents of the town, and a vote appropriating $700 for the enforcement of the liquor law, and authorizing the selectmen to employ agents and coun- sel, was held valid. The reasoning of the court proceeded on the ground, though it is nowhere so stated in terms, that the town had a c orporate interest i_ij_._thg e"l9rggffl6"t of the law. Amongst other things that were said, reference was made to the fact that, in case li- censes were granted in a town, the town would take the larger part of the license fees for its own use, showing that the towns were regarded by the court not merely as political divisions, but as having corporate interests of their own in the enforcement of the law. So far as appears from an examination of the papers in that case, no licenses had been granted by the town, and the case must be regarded, we think, as de- cisive of this. If_thc town had a corporate interest to protect, and the voter s deemed that the action of Greene and Luippold was intended to benefit the town, it is settled that the town had a right to indemnify 350 MAGUIRE V. WAYNE CIRCUIT JUDGE, them even though they were mistaken in their yi ew of the l aw and the facts in regard to the complaints which they made. Hixon v. Sharon, siqjra. It does not appear that they did not act in good faith. It is not contended that the vote appropriating §500 to employ counsel and prosecute the illegal sale of intoxicating liquors was invalid. The re- sult is that the bill must be dismissed. V Bin dismisstd. iv!t^,5)4c^^ ATTORNEY GEXEEAL ex rel. MAGUIRE v. WAYNE CIRCUIT JUDGE. 1909. 157 Mick. 615. Brooke, J. On the 9th day of February, 1909, the common council rT^,^,^ of the city of Detroit passed the following resolution : ^-tJ— " Resolved, That the sum of five thousand dollars be and is hereby ^"^• appropriated from the moneys in the contingent fund and placed at the disposal of his honor, the ma^'or, to investia^ate the street railwav •- question of the city of Detroit; and the city controller be and he is '"^ hereby directed to pay any bills presented and approved by his honor, A^fc the mayor, out of said appropriation.'' C\^ 77 Ou the 12th of February. 1909, the attorney general, on the rela- tion of Matthew J. Maguire, a resident citizen and tax-payer of the city of Detroit, filed a bill of complaint in the circuit court of "Wayne county for the purpose of securing an injunction against the common council of the city of Detroit " from authorizing the city controller to issue his warrant or any warrant upon the said city treasurer of the said city of Detroit for the payment of said sum of So, 000 or any part thereof, for the payment of any bill or expense of the said committee of 50 out of said contingent fund or any fund of the city of Detroit, or bill or ex- pense incurred or to be incurred by the said mayor under said resolution of February 9, 1909, or any similar resolution theretofore or hereafter adopted by the said common council ; " for an injunction against the mayor " from approving said resolution adopted by the common council of Detroit on February 9, 1909, and that he be temporarily and per- petually enjoined from approving any bill or expense under and by ^irtue of said resolution, and for expending any sum which may be paid to him under and by virtue of said resolution of February 9, 1909, in the payment of any bill or expense incurred and to be incurred by the said committee of 50, and in the event of any or all of said appro- priation of 85,000 having been paid to him, the said mayor, that he be temporarily and perpetually enjoined from paying or expending said money so collected by him for any purpose whatever, and that he be ordered, adjudged, and decreed by this court, if any of said money •^t'. MAGUIRE V. WAYNE CIRCUIT JUDGE. 351 has been paid to him, to account for and turn back into the treasury of the city of Detroit the same ; " against Frank E. Doremus, city con- troller, '' from issuing his warrant or any warrants upon the city treasurer of the city of Detroit for the payment of said sum of 85,000, or any part thereof, as provided for in said resohition of February 9, 1909, for the liquidation of any bill or expense, presented and ap- proved by the mayor of Detroit, under said resolution of February 9, 1909, out of said contingent fund or any fund of the city of Detroit, and from making and issuing au}' warrant upon the said treasurer for payment of any bill presented and approved, the purpose of which be- ing to defray any billor expense of the said committee of 50 ; " against Max C. Koch, city treasurer of the city of Detroit, '• from paying out any money from the contingent fund or any other fund of said city upon any warrant or warrants executed by the city controller under and by any virtue of the resolution adopted by the common council of the city of Detroit on February 9, 1909. hereinbefore set forth." The bill of complaint avers, among other things, that the mayor of the city of Detroit has assumed to create a so-called " committee of 50," composed of private individuals unconnected with the administra- tion of the city government and not authorized or created by the Con- stitution of the vState or any law of the State, for the purpose of acting with the mayor in investigating the street railways of said city and their rights in and to the streets therein, with the view of advising the mayor and common council as to what action should be taken in refer- ence thereto. The city by its answer admitted the passage of said resolution, and appointment of the committee of 50 by the mayor, and its purpose to use the fund appropriated by said resolution in defraying the expenses incurred by said committee in investigating the street car question in the city of Detroit. Further answering, it avers : "That the city of Detroit is a city covering many miles of territory with a population, to wit. 400,000 inhabitants. That in the year 1862 certain rights were granted in the streets in the city of Detroit to cer- tain gentlemen who afterwards organized the Detroit City Eailway Company. That in the year 1879 these rights were extended for a period of 30 years. That these grants by the city of Detroit were made under the laws of the State of Michigan. That on the 14th day of November, 1909, the period of extension granted in the year 1879 will have been completed. That for a number of years the street rail- way question has agitated the public mind, and has been the subject of discussion in political campaigns. That these defendants are informed and believe that the character of the population, the manner in which the city has been built, is such that street railway service is essential in order to accommodate the people from day to day. That it is neces- sary to take steps to continue the street car service. That the city of Detroit as a municipality is powerless to engage in this enterprise itself, and that it is incumbent upon the otKcers of the city of Detroit to 352 MAGUIRE V. WAYNE CIRCUIT JUDGE. make an investigation and ascertain, if possible, upon what terras and upon what conditions the city may continue to enjoy street railway facilities. And that the expenditure of money for this purpose is the expending of money for a public purpose." The answer denies that it was the purpose of the common council to deprive itself of the right, to audit and allow the various items of ex- pense according to the usual manner, but concedes that it is the pur- pose to defray the proper expenses of the committee of 50 in and to the investigation of the street car question. An order to show cause was issued by the circuit court for the county of Wayne, upon the return of which a i^relimin ary injunction was denied. The case is here on an application for mj of Detroit, 26 Mich. 264, it is said : " It is the unwarranted use of the money that justifies the interfer- ence, and the pretense upon which it was raised is not important to the question of jurisdiction. ... It should appear that the public has 354 MAGUIEE V. WAYNE CIRCUIT JUDGE. a substantial interest in the question ; the right involved should be a public right, or at least not a private right merely; the wrong done or attempted, if it consist solely in a misuse or misappropriation of funds, should be either one involving questions of public policy, or, where that is not the case, the amount involved should be something more than merely nominal." In Torrent v. Common Coxmcil of Muskegon^ 47 Mich. 115 (10 X. W. 132, 41 Am. Rep. 715), it is said: " But in saying this we do not assume that it belongs to this court, or any other, to dictate to the city how it shall spend its money. The council must use its own discretion where it will save and where it will spend; and the case must be a very clear one, and the subterfuge very plain, before that discretion can be regarded as having been exceeded so as to show an excess of power under a pretense of keep- ing within it. It is not the business of courts to act as city regulators, and, unless the authority of the representatives of the citizens has been exceeded, their action cannot be interfered with merely because it may not seem to other persons to be as wise as it might be." In City of Port Huron v. McCall, 46 Mich. 565 (10 N. W. 23), the court, through Mr. Justice Cooley, spoke as follows : " There is a principle of law that municipal powers are to be strictly interpreted, and it is a just and wise rule. Municipalities are to take nothing from the general sovereignty except what is expressly granted ; but when a power is conferred which in its exercise concerns only the municipality, and can wrong or injure no one, there is not the slightest reason for any strict or literal interpretation with a view to naiTOwing its construction. If the parties concerned have adopted a particular construction not manifestly erroneous, and which wrongs no one, and the State is in no manner concerned, the construction ought to stand. That is good sense, and it is the application of correct principles in municipal affairs." Upon a review of the whole case, considering the magnitude and importance of the issues involved as affecting the rights of the city of Detroit and the future of its citizens, we are of opinion that the case_ presented is not such an one as would compel this court to say that in the denial of the injunction sought by the complainant the learned circuit judge abused a discretion with which he is clothed. The writ should be denied. Hooker and IMoore, JJ., concurred with Brooke, J. Blair, C. J. I am unable to concur in the result reached by Mr. Justice Brooke in this matter. The solution of the street railway question for the city of Detroit is unquestionably a legislative problem for the determination of the common council. It only concerns the mayor in his official capacity, as all questions of municipal government concern the chief executive, charged with the duty of informing himself as to them and recommending action thereon from time to time. The MAGUIRE V. WAYNE CIRCUIT JUDGE. 355 investigations which the mayor makes are for the purpose of enabling him to properly discharge the duties of his office and are compensated by the salary provided for the office. It is not contemplated by the charter of Detroit, in my opinion, that the mayor shall make extensive investigations requiring the examination of witnesses and the expendi- ture of large sums of money for the purpose of equipping himself to recommend action to the common council, and the powers essential to make the investigation effective are not given him therein. Such in- vestigations fall within the domain of legislative action, and the local legislature is given the necessary powers to make them effective. The charter not conferring this power upon the mayor, but, by implication, negativing it. Cooley on Constitutional Limitations (4th ed.), pp. 248-250; 28 Cyc. pp. 463, 464; Union Depot & Railroad Co. v. Smith, 16 C^lo. 361 (27 Fac. 329); 1 Dillon on Muncipal Corpora- tions (4th ed.), § 96. I have no doubt that the common council may choose its own method of collecting information to guide its legislative discretion. Tlint, etc., FlanJc-Roacl Uo. v. Woodhidl, 25 Mich. 99 (12 Am. Rep. 233). It may, if it chooses, conduct its investigation through a com- mittee of outsiders or through the mayor, providing the investigation • is made in its behalf, in accordance with its directions, and subject to its control, and the results reported to it for its action. State Tax- Law Cases, 54 Mich. 350 (20 N. W. 493). The resolution under discussion was not for the purpose of aiding the local legislature to perform its duty, but to assist the chief executive to perform his duty. The resolution directs the city controller " to pay any bills presented and approved by his honor, the mayor, out of said appropriation." This provision is in contravention of mandatory pro- visions of the city charter and is therefore illegal and void. McCor- viick v. Bay City, 23 Mich. 457. The fact, as alleged, that the mayor intends to pursue the charter course for the allowance of his bills, cannot validate this invalid resolution. The resolution must speak for itself unaffected by undisclosed intentions. . The wri t will be gr anted . "^^^'"^^ Grant, Montgomery, Ostrander, and McAlvay, JJ., concurred with Blair, C. J. Hooker, J. I concur with the Chief Justice in the opinion that the council has power to investigate existing conditions and necessities, as regards the street railway of Detroit, and to obtain and pay for pro- fessional and expert assistance therein ; and I am not prepared to say that it may not call to its aid the business judgment of its citizens, for whose use it may procure, or cause to be procured, such assistance, and may pay the necessary expenses of such persons. I also think it may provide for the payment of the expenses of such persons, whose selection may be made by the council itself, a committee thereof, or confided to the mayor, through whom it may make its investigation. I find nothing in the resolution indicating that the information sought Y 356 KETCHUM V. CITY OF BUFFALO. to be acquired was not for the benefit of the council, as well as the mayor, and I_am not satisfied that the council has not power to provide for the legitimate expense of the office of mayor, especially la the performance of duties imposed on him by the council. It appeaFs to be conceded by counsel that it could not confer upon the controller the authority to pay money upon the certificate of the mayor alone, and the learned circuit judge has found that there is no cause for ap- prehension that he will. I therefore concur in the denial of the writ. ^ C'VK-^LtrtX-N, ^<}uury>r-jt->~J^ SECTION VI — ■ Foiver to Contract. •cr^ Qvk$Xs_.-^^o-^^ KETCHUM v. CITY OF BUFFALO. Q^ ^^jr Jt^ ^^t.--^^^-o^^'^ 1856. 14 New York (4 Kernan), 356.^ •2^ b-\A:-t^ Suit by tax-payers of the city of Buffalo, against the city and one ^cft.«/9 of the city presented to the common council his estimate of expenses tx !i,f^;j;ii_A to be levied by tax in which was an item of $3,675, interest on said j^ ^tvJt" bond to Austin. Plaintiffs seek to have the transaction between Vs^ Austin and the city declared void, and ask that the city be perpet- ^^ds ^''*'^^**''^ually enjoined - from levying any tax for payment of said bond or the ► '^Va/oA^^ 'interest thereon. Y\ ^ 1^1 the Supreme Court judgment was rendered dismissing the com- ^ • '*p plaint. Plaintiffs appealed. v^v~.^p-v*ji-<^ j^ jY^ Rogers, for appellants. ^j. ' John L. Talcott, for respondents. ^"^"^^^^ Selden, J. [After deciding that the city had power, under Its charter, to purchase land for the purpose of a market.] But admitting that the city had a right to make the purchase, it ^-^^^_~^» is denied that it could purchase upon credit, and execute the bond •% m^rv^Vt^ given for the purchase money. The power of c o;rporati ons _in gener als. tA^IiX/v^iT'^AAA ^^ ^^^^6 contracts and incur debts in the prosecution of their legiti- ^jl^^^j^^j^^'^^ mate business, and to give their promissory notes for such indebted- ^^^^r ^lLL ness, would seem to be firmly established, not only by universal J^TtjVV^^i^jj. but by repeated judicial decision. {Mott v. Hicks, 1 Cow.^ )VvS£ 3 513; Mossy. Oakleij, 2 Hill, 265; Kelly \. The Mayor of Brooklyn, 4 Hill, 263; Moss v. McCulloiigh, 5 Hill, 131; Attorney General \. * Life and Fire Insurance Company, 9 Paige, 470 ; McCullough v. Moss, 5 Denio, b&l.) In the last of these cases the judgment was reversed, not on the ground that the corporation had not the power to contract the debt, ^ Statement abridged. Only so much of the case is given as relates to a single ^oint. — Ed. U^ w KETCHUM V, CITY OF BUFFALO. 357 or to give the promissory note, but for the reason that the property purchased was not required for the legitimate purposes of the com- pany. Senator Lott, by whom the leading opinion was given, says: " I am satisfied that the note in question was given for purposes and objects unauthorized by its charter, and, therefore, not obligatory." It is true, the learned senator, in the course of his opinion, seems to intimate a doubt whether a corporation like that of the Rossie Lead Mining Company, instituted for specific business purposes, with a limited capital, can virtually add to that capital by the purchase of a large amount of property upon credit, especially where, as in that case, each stockholder is made individually liable for all the debts of the company. However this may be, sound reason, no less than the authorities to which I ha^'e referred, forbid that it should be held that a corpora- tion may not incur a debt in the exercise of its appropriate powers, or may not purchase, upon a credit, property which is required for purposes authorized by its charter. Municipal corporations, espe-\ C«*.'">^ c^*wv cially, obtain their funds, for the most part, periodically, by means 7*^*^v-«-^ ^^ ^ of annual taxation, and it is impossible by any degree of care to I ""-^^^jdU^^*^ adjust their means to their wants so accurately but that exigencies will j^^^*~f*^ iJ arise, rendering necessary a resort to the credit of the corporation. c»^l_^ U, To deny to such corporations the power to use their credit in any >>AiU case, would scarcely comport with the objects for which they are created. Under such a rule they could not procure materials for the repair of a bridge, unless the money had been raised in advance- The affairs of no municipal c orporation were ever conducted, I pre- Gfe-v^w^ • '*;}2:±: sume, wit ho ut incurring obligations, f or various „pur p oses^in antici- ■>-^^ — ^ cv---c»^ selling the lands oFlhe plaintiff lying in the city of Madison, for ^^^^*-^tr\ the taxes assessed in the year 1857. Said tax was levied, in part, VA9. ol-itJI Paine, J. . . . But it is claimed that the city had no power to make Vj -ftc ' Statement abridged. Arguments omitted. Only so much of the opinion is given ^J*^ •^ *^^ as relates to a single point. — Ed. JU»iihe legislature, authorizing the procurement of loans by municipal Corporations, and the issuing of bonds or other securities in payment. We are not aware to what extent, if any, this practice has pre- vailed in this state, as to loans for purposes clearly municipal, and authorized by the charter; but it seems to have been resorted to sometimes, even in such cases, in other states. The argument drawn from the assumption on the part of the legislature of the necessit\' of such acts, is one always entitled to consideration, and sometimes of much weight, though never conclusive; and we think, owing to the ^^Ywi«y peculiar nature of the subject matter, that in cases involving a loan ^^'y**'*'"^^Dy corporations, it is of less force than in almost any other, for cap- ■*^^-*^-**^f^ ' ital is of a timid jealous disposition. It delights in certainty, and is alarmed by doubts. It has been held with great strictness, that ^corporations can exercise no powers except those granted by their charter. When, therefore, the charter does not expressly give the power of borrowing money, even though it grants powers to which this might be claimed as incident, yet there is room for doubt, a chance for an argument, and that being so, it might, as a matter of policy, facilitate the loan by removing all uncertainty by an express act of the legislature. And the fact that such acts have been passed, being then clearly necessary, when these corporations have been authorized to issue bonds in aid of purposes outside of their char ters, may have had a tendency to induce a resort to the same practice when the bonds were issued for some purpose authorized by the char- ter, though in that case such legislation may not have been necessary. For these reasons we think there is nothing in this practice sufficient to overthrow the general rule, that in the absence of restrictions, a corporation authorized to contract debts and to execute undertakings requiring money, may borrow money for those purposes, and issue its bonds or other obligations therefor. This question is alluded to in Ketclmrn vs. the city of Biiffalo, 4th K^ern., 356, and the court held that the fact that in several other MILLS V. GLEASON. 361 instances, the legislature had expressly granted power to corporations to " purchase market lots," did not justify the cor.chision that the city of Buffalo could not exercise the power as incidental to the general power of establishing a market. The court neld that, under that general power, it might purchase the lot on credit, and issue its bonds in payment. And, after carefully considering the suggestions made by the learned judge who delivered the opinion, we fail to per- ceive any substantial distinction, so far as the question of power is concerned, between the method there adopted and that adopted by the city of Madison in this case. True, it is there suggested that the question whether the city of Buffalo could have boiTOwed the money and paid for the lot, and issued its bond for the money, was a different question, though at first view " they might seem identical." But on examining the poin ts_of_distin^ction stjtlfijd? we think they do not affect the question of power, but simply go to show that the one metho d of exercisi ng it may_ afford less facility for a misapplica tion of the f unds_tban the other^ Thus it was said that if the money was borrowed to build a market, it might be used to build a theatre, whereas if the contract were directly for the market, and the bond given in payment, it would ensure the application of the fund to its legitimate object. This might be a go o d reason why the legislatur e should restricttb e corporation to the one method of accom plishing' the object; but when the power is granted Avithout restriction as to tEe^ means, it does not, in our opinion, justify a court in saying tha* while the corporation has the power of using one means, it has not that of using another, though equally direct and well adapted to the accomplishment of the object, provided the funds are honestly applied; merely because it may afford greater facility for a misapplication. They might undoubtedly be misapplied in either case. Thus, what should prevent the city of Buffalo, having purchased a lot for a market, and given its bonds for it, from erecting a theatre instead of a market on the lot, if it was to be assumed that it was willing to pervert its funds and its credit to unauthorized purposes? Or, hav- ing purchased materials for a market, it might out of them erect a theatre. Or, having given its bond for the purchase of a lot, and the erection of a market, and then having raised by taxation the money to pay the bond, it might use the money to build the theatre, leaving the bond unpaid. This opportunity of misapplying the funds must exist u nder any method of executing the powers of a corporation . If one affords greater facility for it than another, the remedy is in restrictions by the legislature, and the selections of honest and cap- able agents by the people. But it affords no ground for a court to say that as a mere question of power, the corporation may not adopt the one method as well as the other; and it being established that a corporation may purchase upon credit such things as are necessary for the execution of its powers, we think it follows necessarily that it may borrow the money to pay for them, as that is one mode of purchasing upon credit. 302 MILLS V. GLEASOX. Nor is the power of taxation conferred by the charter to be deemed :o exclude the power of borrowing money. The case just referred to .3 an authority against such a proposition. It holds that, notwith - ^t anding _th e power of taxation, the corporation may resort to jta_ "credit, not only fo r its ordinar y c urren t expenses, but for objects of a pe rmanent character. The case of Clark vs. School District, 3 R. I. , hi, it.*.^^.^L^ \ borrow money to pay debts contracted for the erection of a school- JCft^k^ [house, and give its note therefor, and that its power of taxation was '^*\, not to be construed as forbidding it to borrow money for a legitimate purpose. Beers vs. Phoenix Glass Co., 14 Barb., 358, and Mead vs. Keeler, 24 Barb., 29, are also direct authorities in favor of the power of a corporation to borrow money, as incidental to the execution of its other powers. It was said on the argument, that it did not appear that the moneys received were all applied to municipal purposes. It does not appear how they were all applied, but we apprehend it would not be incumbent on the lender to show that they were properly applied. If the city had power to borrow money for legitimate pur- poses, a misapplication of the funds after they were obtained would not invalidate the contract. In Bigeloiv vs. the City of Perth Amhoy, Dutch., 297, the city had purchased a quantity of flag-stone, for pav- ing streets, and it was claimed that the charter had not been complied ■>.Co ~e^ with, in respect to the proceedings preliminary to the paving by the '^ >-*^ Icity. But the court held that to be a question between the city and ^ flL^rY^Sjl ^'^^ lot owners, and they add: " But as between the creditors of the \ t^V>j,;!^| city and the corporation, the only question is whether the city agents, ^>v-ji.^^i>-f ^^lis mayor and council, had the power of purchasing the material in 'v^oJtL jquestion. How the material was used, or whether it was used at all, yU>S^ Jis to creditor a matter of total indifference." So in a recent case in England, Eastern Counties li. R. Co. vs. Ilaivkes, 38 E. L. & E., 8, it was held that where the charter allowed the company to purchase lands for extraordinary purposes, a person contracting to sell them land was not bound to see that it was strictly required for such purposes, ^ f'X^y^ j and that if he acted in good f aitb^ jwithg ut knowing of any intentio n ^\)*'^i\ to misapply the funds of the company, he might enforce the contract. '^-*^/ ^ The principle of that decision would seem to warrant the proposi- ^Jf^"'"''*^) tion, that where a corporation has power to borrow money, a lender, '.J. r^^ acting in good faith, and supposing it to be borrowed for legitimate rv^ Stoe^" purposes, might recover, even though the corporation intended to de- l |A»./v^*w>»^vote it to objects unauthorized. And it would certainly sustain the position, that where it was borrowed for lawful objects, no subsequent misapplication of the funds could affect the rights of the lender, about which there is, in fact, no room even for the shadow of a doubt. • ••••••• Tudgment reversed. Cause remanded with direction that the com- plaint be disynissed. ^ ^^ T) V^ TOWN OF HACKETTSTOWN V. SWACKHAMEK, 363 TOWN OF hackp:ttstown v. swackiiamp:r. >-^^--*-— ^r Y> 1S74. 37 New Jersey Law, 191. v^-<»/'^-^^ ^nJUvs On rule to show cause. ■^-^-a-^-c^^ Argued at June Term, 1874, before Beasley, Chief Justice, and ^*^^*VJtt* Justices Bedle, AVoodhull and Scudder. vx*-^ For the defendants, Fitney. ^"V^, \v For the plaintiff, Vanatta. Vyv^A-h^X^^,^ The opinion of the court was delivered by 63»->^,~_oi c Beaslei', Chief Justice. The note, which is the subject of this ^-o-'^^ <\vs».. suit, was given by the treasurer of the town of Hackettstown, in ^ *^'*r^M the name and behalf of the town, for money borrowed. This case, '<*'\"*-<->-*>jSi therefore, raises the question whether a municipal corporation, in the^'*'^^'^^*'^*'^^ absence of an express power for that purpose, can contract ^or loans t^*^^' for the supply of its ordinary expenses. '/^-c^-:>Vwo v At the present time it seems to be generally conceded, that a j)ri- t»^AXA*vj5~wO vQ^tP forpomticmj constituted with a view to pecuniary profit, has, by '^J'^^v^-atxa) implication, when not in this particular specially restricted, the power ^'"^'^ ^ ^ in question. The law was so held in this state, in the case of Lucas . '>p'"-o-a V. Fitney^ 3 Dutcher 221, and the same rule has been repeatedly ^^''^■o-^-^^^^^^i recognized in other decisions. And this result is the appropriate jV*"**"*"^ product of the principle that corporate powers, which are the neces- ^"^*i^^\ sary accompaniments of powers conferred, will be implied. In these *~^^^^^^^^^ instances the ability to borrow money is so essential that without it ^^^^T*"^ the business authorized could not be conducted with reasonable *^ efficiency, and, as it cannot be supposed that it was the legislative intent to leave the company in so imperfect a condition, the inference is properly drawn that the power to raise money in this mode is inherent in the very constitution of such corporate bodies. Such a deduction is simply, in effect, a conclusion that the lawmaker designed to authorize the use of the means fitted to accomplish the purpose in view. It has been often said that the means which can be thus raised up by implication must be necessary to the successful prosecution /»^ c5^sur*^ of the enterprise, and that the circumstance that they are convenient (> ^.^ will not legalize their introduction. But the necessity here spoken ^^^ of does not denote absolute indispensableness, but that the power in fu^^^^^j^y^^ j- question is so essential that its non-existence would render the privi- ~. leges granted practically inoperative, or incomplete. It is, conse- quently, obvious that a presumption, resting on such a basis as this, must spring up in favor of almost the entire mass of commercial and manufacturing corporations, for without the franchise to effect loans, the chartered business could be but imperfectly transacted. And yet, even in such instances, the usual inference that such an implied power exists maybe repelled by the language of the particular charter or the peculiar circumstances of the case. In a word, the rule of law '>-'ttSwMK 364 TOWN OF HACKETTSTOWN V. SWACKHAMER. in question is nothing but the discovery, by the courts, of the legls lative intent, such intent having been ascertained by a construction of charters, as applied to the subject matters. Taking this as the ground of our reasoning, J[j^ni_ at a loss to per- ceive how it can be inferre d that a power to borrow money is an app endage to the usual franchises given to municipal corporation3._ S uch a right cannot, in any reasonable sense, be said to be necessary within the mean ing of that_te rm as alread y defined. Under ordinary circumstances it is not certainly indispensable as common experience demonstrates. In the great majority of instances the municipal affairs are, with ease and completeness, transacted without it. I do not wish to be understood as indicating that under certain special ^f^"*-^ conditions an opposite deduction may not be legitimately drawn. It ;^~t Vvxi^A^ is plain that it is practicable to impose a duty on a municipality *<>o — y^ requiring the immediate use of large sums of money, and in such a situation the inference may become irresistible that it was intended that funds were to be provided by loans. My remarks are to be restricted to that class of cases where charters are granted containing nothing more than the usual franchises incident to municipal corpora- tions, and under such conditions it seems clear to me that the power to borrow money is not to be deduced. I have already said that it does not appear to be a necessary incident to the powers granted, for such powers can be readily and efficientl}^ executed in its absence. It would be to fly in the fa c e of aU experience to clai m that the ordinary municipal operations cannot be efficiently carried o n except with the assistance of b orrowed^ca pitaL Without any help of this kind, it is well known that our towns and cities have long been, and are now being, improved and governed. For the attainment of these ends it has not generally been found necessary to resort to loans of money. T he supplies derived an nually from taxation have been fo und amply sufficient for these purpa aes Consequently I am unable to perceive any necessity to borrow money, under these conditions, from which the gift of such power to borrow is to be implied. It undoubtedly is clear that if, as has been asserted, the ends of the municipal charter can be conveniently reached, without a resort to the device of raising moneys by loan, there is not the least legal basis for a claim of the power to obtain funds in that way. Granted the fact that the charter can be executed with reasonable ease and with completeness, the conclusion is inevitable that the power in question cannot be called into existence by intendment, and as I claim the fact to exist I must, of necessity, reject the right of implication in question. Nor is there anything in the language or in the frame of the present charter which would seem to favor the idea of the existence of an authority in the corporation to borrow money. It is in the ordinary fashion, giving the usual prerogatives of administration, improve* jcen: and police, and then follows the important clause, declaring TOWN OF HACKETTSTOWN V. SWACKHAMER. 365 "that it shall be lawful for the common council, from year to year,! ^o^j-^ii^ *-^ to vote and raise by tax such sum or sums of mone}' as they shall I ^ N-dL.*^"! deem necessary and proper." Of course there can be no doubt with! "•^-v-t.^j^ respect to the purposes to which the money thus authorized to be ' levied is to be applied. It is the means whereb}' the duties of local government are to be discharged. There is no limitation on the * amount that may be raised. But there is a limitation on the method of raising it. It is not a general authority to raise money in any mode which the common council shall devise. The restriction is, it - t\~ shall be raised " bjtax." How can it be claimed, then, that it can ''^^"^ ^^'J' be raised b}' loaiT? The power to borrow money is, in a certain sense, a larger power than that of raising money by taxation. There is, in the nature of the thing, an immediate check to excessive tax- ation; that IS, the resistance of the parties taxed. There is none\^ '""'"^l^ such in the power to borrow, for the immediate burthen of a loan isi .^^..^jZ^Jta-tX but slightly felt. Indeed, it is difficult to imagine any greater power-' cso^^*..:,^ V that one person can confer upon another than an unlimited authority v>j%S.fi ir^ to borrow money. It is a common thing for an agent to have the right to contract debts in the name of his principal; but a very un- 1 a,»,,,^JLoo« common thing for such agent to be authorized to borrow money ad \ 6^^>-c^-«>A*MAii force able. T o sty le it, as was done in the argument, money had >.'C*J->H^k1 Ip-O >>/v/'--a-«-^ ^ who has occasioned the evil should bear the loss. But whether the owner of this paper be remediless or not, it is enough for the present purpose to say that there is no apparent ground on which this money, thus illegally loaned, can be recovered by an action at law. The establishment of these general principles necessarily leads to a decision against the plaintiff in this case. But there are narrower grounds which would conduct to the same i-esult. On the admission that the common council, which is the ruling \ ^S^^ji-^ power of the corporation, had authority to contract the debt in ques- j S^js^.^ ^^-^^ tion, it was not shown at the trial, with anything like legal certainty, i vrv^'^yiA ]^ that this loan was either authorized or ratified by such body. The ) ^-^ ^^ treasurer obtained the money and gave the note. The proof of his authorization consisted in his statement that he had a " verbal author- ity to borrow money needed for the purposes of the town.'* This is ^ entirely too loose. Such a power could not be transferred, except by | ^vr*-*^^** a formal resolution, passed at a legal meeting of the council, or by \ ^^^^^^V^Vc an ordinance duly enacted. Nor was it shown that the fact of the ^sl--2oAv-X money's having been expended for town purposes, was ever known to the council. The result is that, at the trial, there was proof neither of the authorization of the treasurer, or of ratification of his act. One of the essentials of the plaintiff's case was wanting to it. On this ground alone there must be a new trial. The further question was disi'ussed at the bar, whether a municipal corporation, lacking a special authorit}' to that end, can execute a promissory note I have examined the subject, but the views already expressed render it unnecessary to pronounce any final conclusion with respect to it, for the purposes of the present case. I may say, how- ever, that my present view is, that a corporate body of this character, has the general and inherent right to execute a note as a voucher of 368 GREAT FALLS BANK V. TOWN OF FARMINGTON. -r- ^^ indebtedness, but that such note will not have the effect when in the ^jJ^^j»3i^^K.handsof a bona fide holder before maturity, of cutting off the equities ,,-«»p-<./©-\. (^A>''-«\A-«--*i}^ \p>r\)V5 ^J^Vjsr-s» ^-o^AyS^A. GREAT FALLS BANK v. TOWN OF FARMINGTON. _^ ^^^^^ Wv.^^ V^ VSl^ - l^^*^- *^ ^^"^ Hampshire, 32.1 ^-^,aX_^i5liu»^ Assumpsit on a promissory note of the defendants, signed by a < ^ H*'*^'^ majority of the selectmen, by order and in behalf of the town, orig- J|p,i>ZoJ^ . inally payable to H. Rollins" & Co., or order, in six months from ^ jj date; and indorsed to plaintitis. The note was given for liquors ^_ I Y^ ^* > purchased by the town liquor agent upon the credit of the town ; said -vi.^^- ''""""'^ agent so purchasing under ^'^erbalauthority from the selectmen. The *^-^ ^'*^^^^*^ liquors were sold to the agent by Rollins &, Co. in Massachusetts. >^^\rwAO-M. j^Qiiiug ^ Qq^ were not licensed to sell liquors in Massachusetts, and * ^^"'^C^^?^ the sale was in violation of the Massachusetts statute. The plain- ^'"'^^"^ ^ tiffs purchased the note for value, before maturity, and without any '**"=*-* ^^ ^"^ notice or knowledge of the consideration for which it had been given. ^^% ^r"**'*'^ The foregoing facts appearing in evidence, a verdict was taken for \jl '' Cl rOP^^^^^^^^' s-iid the questions of law were reserved. ^^^^ » ^^^ Wells & Eastman, for plaintiffs. -■ .V Q, ]\[, JSastnuni, Christie & Kingman, for defendants. fk (>oc*W^*^-^o^^^^' J- -^y t^^ express provisions of the act of July 14, 1855 (Laws of 1855, ch. 1658), it was made the duty of every city, town and place in this State to establish one or more agencies " for the ~-5 V^'* purchase of spirituous and intoxicating liquors, and for the sale 7 thereof within such city, town or place, to be used in the arts, or for (^ medicinal, mechanical and chemical purposes; and wine for the com- | * memoration of the Lord's Supper; and for no other use or purpose --^ whatevei-." The selectmen were liable to indictment for refusing to cJi. appoint an agent, even where the town had refused to provide the means to purchase the stock in trade of the agency. State v. Wood- burij, 35 N. H. 230. The selectmen of Farmington, or the liquor agent by them appointed, might, therefore, properly purchase, upon the credit of the town, the liquors necessary to supply the agency which the selectmen were required to establish. The town was legally liable to furnish the agency with such liquors, their credit might be pledged to procure them, and the selectmen, as the general prudential and financial agents 1 Statement abridged. Portions of opinion omitted — Ed. GREAT FALLS BANK V. TOWN OF FARMINGTON. 369 of the town, might, therefore, rightfully bind the town by a note given for the price of the liquors necessary for that purpose. It was ^ \L»kajX^^^st withi n the scope of thei r authority as selectmen to bind t he town Ijy / v-'vyyiU^^ h cont r act to pay for liquors furnisbed tlie agency o t_t Ee~town bv: l^J^^^^^y^-^ them established without any express authority from the town for ) \^vx.''J-*v~^ that purpose.^ Andovei' v. Grafton., 7 N. H. 298; Savuf/e v. JRix, ^^"^ 9 N. H. 26'); Glidden v. Unity, 33 N. H. 571; Hanover v. Weare, 2 N. H. 131; Hanover v. Ea.ton, 3 N. H. 38; Ang. «fe Am. on Corp. 212, and authorities cited; Comp. Laws, ch. 36, sec. 2. The selectmen of Farmington having had authority to give the note in suit, and the plaintiffs being innocent indorsees and purchasers thereof for value before its maturity, in the ordinary course of busi- ness, without notice or knowledge of any illegality in its considera- tion, upon general principles, this action may well be maintained, notwithstanding the consideration of the note was the sale of liquors in violation of the statute of Massachusetts; for generally the ille- gality of the consideration of a negotiable promissory note is no defence to it in the hands of an innocent indorsee and purchaser -^ — ' ^ ' ' for val le. Doe v. Burnliam, 31 N. H. 426, and authorities; Crosby V. Grant, 36 N. H. 273. But the defendants contend that, although the general rule be as ■we have stated it, they stand upon a different footing, inasmuch as if Ithey may be holden to pay this note to the plaintiffs, they are in a worse condition in relation to the debt than they would have been if a negotiable note had not been given for it, and therefore the selectmen had no authority to give the note. The position seems to rest upon a remark of Parher, J., in Andover v. Grafton, 7 N. H. 298, based upon the authority of Slark v. The Highgate Archway Comjmny; 5 Taunt. 792 ; 1 E. C. L. 268. [After stating the last named case.] It is quite apparent that the whole extent of the authority of this case goes only to the point that corporations, like natural persons, are bound by the acts and contracts of their agents, only when those acts are done and those conti-acts are made within the scope of their authority; and that whenever a corporation is sued upon such a con- tract, whether it be a negotiable promissory note, or any other instru- ment, they are at liberty to show that the agents making it had no authority to execute it, in whosesoever hands it may be; because, if the agents had only a restricted authority, a contract made by them beyond its limits could impose no obligation on the corporation; and whoever takes a contract executed by an agent, takes it subject to the risk of the authority of that agent to execute it. This doctrine is too familiar to need the citation of authorities. The subject is fully discussed, and most of the American authorities are collected, in Ang. & Am. on Corp., 2d ed., 213, 216, 229, 233, 239-246. It seems to us the decision in Andover v. Grafton can and does go 370 GEE AT FALLS BANK V. TOWN OF FARMINGTON. no farther than the principle to which we have adverted. It is true, the learned Judge Farker not only says: "An indorsee who should take such a note [one given by the selectmen of a town in behalf of the corporation], even before due, would receive it subject to a lia- bility to make the same proof respecting the authority of the select- men to execute it in that particular case, as would be required of the promisee;" but adds, "and of course must be chargeable with notice of all the facts, and the note in his hands be liable to the same defence as in the hands of the original promisee;" and then cites Slark V. The Hlghgate Archway Covipariy^ as authority to sustain his position. / It is undoubtedly true, as a general principle, that whatever is \jiotice enough to excite attention, and put the party upon his guard, and call for inquiry, is notice of every thing to which such inquiry would naturally have led. Where a person has sufficient information to lead him to a fact, he shall be deemed conversant of it. Kennedy V. Green, 3 Myl. & K. 719, 721, 722; The Ploughboy, 1 Gall. 41^; Hlnde V. Vattier, 1 M'Lean 118; Bowman v. Walker, 2 M'Lean 376; Sugd. Vend. & Purch. 1052, and cases cited; Carr v. Hilton, 1 Curt. C. C. 390 ; Hastings v. Spe7icer\ 1 Curt. C. C. 504. In the case before us this rule does not apply to the matter of defence relied upon. The note was signed by the selec tmen for the ^defendant town, and theref ore it was incumbent up on_the^ plain tiffs yJC'S^ i-f^^-^l to inquire whether it was signed by them within t he scope of their arrttrorlty. aud_giyen for^a d ebt for which the credit of the tow n_ could jToper ly be pledge d by them, and this was all . They were not bound boinc[uire and ascertain whether o r not the liquors purchased to enable Ithe t own to perforna ^ th e duties imposed upon it by atntnte , were pp r- [chased in vio lation of a ja^vv_of Massach u setts, or no t, because that [uestion was not one mat erial to the authority of the selectmen to 'give the note, mhey examined the statute under which the town acted, they t'ound no special provision made for the supply of the town agents with liquors, and being satisfied that the note was given by the selectmen within the scope of their authority, for liquors actually received by the town to its own use, they were not required to go further, and inquire into the provisions of the statutes of another State, and into the question whether or not the sale of the liquors for the price of which the note was given was thereby prohibited ; and if BO, still further, whether or not our courts would enforce the prohibi- tion here. They had no notice of any such facts, nothing to call their attention to them and put them upon their guard in relation to them. To hold that if the defendants would be worse off in defending against the note, than they would have been in defending against the account for which it was given, the selectmen had no authority to give it, would make the authority of the agents depend upon the result of subsequent proceedings against their principal, and not CITY OF BRENHAM V. GERMAN AMERICAN BANK. 371 Qpon the question whether or not they were acting at the time of the transaction within the range of their legal authority. This would be quite absurd. If the selectmen had authority to give a negotiable note for the debt incurred in the purchase of liquor for the town agency, they had that authority none the less, because, upon well established principles, that note in the hands of a bond fide indorsee for a valuable consideration, Avithout notice and before maturity, might not be open to some defences to which it might have been sub= ject in the hands of the original payee, or which might have been made to a suit to enforce the debt for which the note was given. The town is a corporation, and like all other corporations must be subject to the same rules of law as are applicable to individuals. It is well settled that an individual who gives his note for liquors sold in vio lation of law, cannot be per miirteclto~sEowlIie~iTregaI consider- ation as a defence to a suit upo n t he note by an actual purch aser _thereo f before maturity and without notice. Whether he gave the note personally, or by an authorized agent, could make no difference. So it must be with a town or other corporation. The fact that the note is executed by an agent is apparent upon its face ; of course the purchaser has notice, and buys the note at the risk of the authority of the agent to give it, but this is all. He has no notice, express or implied, of any illegality in the consideration, or in the sale whereby the debt was created for which the note was given, and is not there- fore to hold it subject to any defence of that character. With these views, there must be Judgment upon the verdict -^5®^ CITY OF BRENHAM v. GERMAN ^AMERICAN BANK. (^(l,«vVW 1892. 144 U. S. 173.1 V^^>^^**-« '^^^f^ Error to U. S. Circuit Court for Western District of Texas. " AJ-cr~^./^„3^^ l^ Action by bank against the city of Brenham to recover upon con- V^-^^^i^j^'^^'a^i-a' , pons cut from negotiable bonds issued by it. The act incorporating >i ^^^tt-'-Q^ <^ the city contains the following provisions: — , Art. 3, Sect. 2: ''That the city council shall have the power and H^M„V^^ authority to borrow for general purposes not exceeding ($15,000) S'. R. Fisher, for plaintiff in error. A. H. Garland and Heyiry Saz/les, for defendant in error. Blatchford, J. . . . The principal contention on the part ol the riefendant is that it was without authority to issue the bonds, and that they were void for all purposes and in the hands of all persons. There is nothing in the charter of th e defendant which gives i t any power to issue negotiable, intere st- bearing bonds of the character o f Those involved in the present case. The only authority in the charter that is relied upon is the power given to borrow, for general purposes, not exceeding $15,000, on the credit of the city. . . . That in exercising its power to borrow not exceeding $15,000 on its credit, for general purposes, the city could give to the lender, as a voucher for the repayment of the money, evidence of indebtedness !L^^ V^ ^>y*^ in the shape of non-negotiable paper, is quite clear; but that does "T'^^jj^i-^^H'^^not cover the right to issue negotiable paper or bonds, unimpeach- ' V^^ YrAs» ^^^® ^^ ^^^ hands of a bo7ia fide holder. In the present case, it K,^,_«j,^/>^ . appears that Mensing bought from the defendant 65000 of the bonds ^ at 95 cents on the dollar, and that other $7000 of the bonds were sold by the city for the same price, it thus receiving only $11,400 for $12,000 of the bonds, and suffering a discount on them of $600. The city thus agreed to pay $12,000, and interest thereon, for $11,400 borrowed. This shows the evil working of the issue of bonds for more than the amount of money borrowed. a*^ wxaA\X> r ^^ appears by the record that depot grounds in, and the right of Mt. . *>Y^^ y^^ through, the city of Brenham were bought for the Gulf, CoTcrado *"-^^i -»\fv>- [and Santa Fe Railroad Company with money realized from, the sale 6cs,^V- lof bonds issued under the ordinance of June 7, 1879, and that $3000 V)f such bonds were used by the city for fire department purposes. The power to borrow the $11,400 would not have been nugatory, unaccompanied by the power to issue negotiable bonds therefor. Merrill V. Monticello, 138 U. S. 673, 687; Williams v. Davidson., 43 Texas, 1, 33, 34; City of Clehurne v. Eailroad Company, QQ Texas, 461; 1 Dillon on Municipal Corp. 4th ed. § 89, and notes; § 91, n. 2; § 126, n. 1 ; §§ 507, 507 a. The confining of the power in the present case to a borrowing of money for general purposes on the credit of the city, limits it to the CITY OF BRENHAM V. GERMAN AMERICAN BANK. 873 power to borrow money for ordinary governmental purposes, such as are generally carried out with revenues derived from taxation; and ,the presumption is that the grant of the power was intended to con- fer the right to borrow money in anticipation of the receipt of revenue taxes, and not to plunge the municipal corporation into a debt on which interest must be paid at the rate of ten per centum per annum, Bemi-annually, for at least ten years. It is easy for the legislatura to confer upon a municipality, when it is constitutional to do so, the power to issue negotiable bonds; and, under the well-settled rule that any doubt as to the existence of such power ought to be deter- mined against its existence, it ought not to be held to exist in the present case. A review of the cases on this subject in this court will be useful. [The learned Judge then cited, and commented upon, liogers v. Burlington, 3 Wallace, 654; Mitchell v. Burlington, 4 Wallace, 270; Police Jury v. Britton, 15 Wallace, 5G6; Claiborne County v. Brooks^ 111 U. S. 400; Concord v. Rohiuson, 121 U. S. 165; Kelley v. Milany 127 U. S. 139; Norton v. Dyershurg, 127 U. S. 160; Young v. Claren- don Toivnshij), 132 U. S. 340; and Hill v. Memphis, 134 U. S. 198. He quoted, inter alia, the statement of Mr. Justice Bradley in Police Jury V. Britton — that it was one thing for county and parish trus- tees to have the power to incur obligations for work actually done in behalf of the county or parish, and to give proper vouchers therefor, and a totally different thing to have the power of issuing unimpeach- able paper obligations, which might be multiplied to an indefinite extent.] In Merrill v. Monticello, 138 U. S. 673, 687, 691, it was held that J the implied power of a municipal corporation to borrow money to/ v-nable it to execute the powers expressly conferred upon it by law,/ if existing at all, did not authorize it to create an.d issue negotiable/ securities to be sold in the market and to be taken by the purchasei freed from the equities that might be set up by the maker; and that to borrow money, and to give a bond or obligation therefor which might circulate in the market as a negotiable security, freed from any equi- ties that might be set up by the maker of it, were essentially different transactions in their nature and legal effect. In the opinion of the court, which was delivered by Mr. Justice I^amar, the cases of Police Jury V. Britton, Claiborne County v. Broohs, Kelley v. Milan, Young V. Clarendon Township and Hill v. Mempliis were cited with approval. It was added: " It is admitted that the power to borrow money, or to incur indebtedness, carries with it the power to issue the usual evidences of indebtedness, by the corporation, to the lender or other creditor. Such evidences may be in the form of promissory notes, waiTants, and, perhaps, most generally, in that of a bond. But there is a marked legal difference between the power to give a note to a lender for the amount of money borrowed, or to a creditor for the amount due, and the power to issue for sale, in open market, a bond, 374 CITY OF BRENHAM V. GERMAN AMERICAN BANK. as a commercial security, with immunity, in the hands of a bona fide holder for value, from equitable defences. The plaintiff in error contends that there is no legal or substantial difference between the two; that the issuing and disposal of bonds in market, though in common parlance, and sometimes in legislative enactment, called a sale, is not so in fact; and that the so-called purchaser who takes the bond and advances his money for it is actually a lender, as much so as a person who takes a bond payable to him in his own name." The opinion then stated that the logical result of the doctrines an- nounced in the five cases which it cited clearly showed that the bonds sued on in the case of Merrill v. Monticello were invalid, and added : " It does not follow that, because the town of Monticello had the right to contract a loan, it had, therefore, the right to issue negotia- ble bonds and put them on the market as evidences of such loan. To borrow money, and to give a bond or ob ligation there for which ma y circulate in the market as a negotiable security, freed from any equi- ties that may be set up By the maker of il^^re, in their natui'e and in ~ their leg al effect, ess e ntially different transa ctions. In the present case, all that can be contended for is, that the town had the power to contract a loan, under certain specified restrictions and limitations. Nowhere in the statute is there any express power given to issue negotiable bonds as evidence of such loan. Nor can such power be implied, because the existence of it is not necessary to carry out any I of the purposes of the municipality. It is true that there is a con- siderable number of cases, many of which are cited in the brief of counsel for plaintiff in error, which hold a contrary doctrine. But the view taken by this court in the cases above cited and others seems to us more in keeping with the well recognized and settled principles of the law of municipal corporations." We, therefore, must regard the cases of Rogers v. Burlington and Mitchell V. Burlington as overruled in the particular referred to, by later cases in this court. See 1 Dillon's Mun. Cor. 4th ed. §§ 507. 507 a. • ••••••• r We cannot regard the pi'ovision in the charter oi the city, that I bonds of the corporation of the city " shall not be .subject to tax I under this act," as recognizing the validity of the bonds in question. I Whatever that provision may mean, it cannot include bonds unlaw- Vfully issued, As_thei:e__gas_jio_ authority to issu e the bonds , even a boii a fide bolder of them cannot have a right to recover upon them or their _ coupons. Marsh v. Fulton County, 10 Wall. 676; East Oakland y. Skinner, 94 U. S. 255; Buchanan v. Litchfield, 102 U. S. 278; Hayes V. Holly Springs, 114 U. S. 120; Daviess County v. Dickinson, 117 r. 8. 657; Hopper v. Covington, 118 U. S. 148, 151; Mei-rill v. Monticello, 138 U, S. 673, 681, 682. CITY OF BEENHAM V. GERMAN AMERICAN BANK. 375 As the action here is directly upon the coupons, and there is no right of recoyery upon them, the judgment must be Reversed, and case remanded to the Circuit Court., with a direction . . . to enter . . . a (jeneral judgment for tlie defendant.^ Harlan, J. (with whom concurred Brewer, J., -and Brown, J.), \ dissenting. [After reviewing various cases cited in the majority opinion.] It thus appears that in no one of the above cases, decided since Rogers v. Burlington., was there any question as to negotiable secur- ities being issued under an express power to borrow money ; and that some of them concede that such a power carries with it authority to give a negotiable paper for money borrowed. The case which seems to be much relied upon to support the present judgment is Merrill v. Monticello. But we submit that it does not sustain the broad doctrine that negotiable securities may not be issued in execution of an express power to borrow money. What could or could not be done, under such a power, was not a question involved in that case. The question was whether authority in tha town of Monticello to issue negotiable bonds could be implied., not from an express, but from an implied power to borrow money. [After commenting upon Merrill v. Monticello, 138 U. S. 673, and Citg of Savannah v. Kelhj, 108 U. S. 184.] It is, perhaps, proper to say that our views find support in the admirable commentaries of Judge Dillon on the Law of Municipal Corporations. The court refers to sections 507 and 507 a of those Commentaries. But those sections do not, in any degree, support the conclusion reached in this case. The doctrine which the learned author declares, in those sections, to be alike unsound and dangerous, is, " that a public or municipal corporation possesses the implied pover to borrow money for its ordinary purposes, and as incidental thereto the power to issue commercial securities, that is, paper which cuts off defences when it is in the hands of a holder for value acquired before it is due." But Judge Dillon, while agreeing that the power to issue commercial paper, unimpeachable in the hands of a bona fide holder, is not among the ordinary incidental powers of a public municipal corporation, and must be conferred expressly, or by fair implication, says, after a careful review of the authorities: "Express power to borrou' money., perhaps, in all cases, but especiallj' if con- ferred to effect objects for which large or unusual sums are required, as, for example, subscriptions to aid railways and other public Improvements, will ordinarily be taken, if there be nothing in the legislation to negative the inference, to include the power (the same as if conferred upon a corporation organized for pecuniary profit) to issue negotiable paper with all the incidents of negotiability." i In 144 U. S. 549, a petition for rehearing was denied ; but the above order was modified. The judgment below was reversed, and the cause was remanded for further proceedings not incousistent with the above opinion of Blatchford, J. — Ed. 3Xxj!v^ of the Appellate Division of the Supreme Court in the second judicial ""■^'--jit-cfijL^ department, which overruled plaintiff's exceptions ordered to be heard VrvjjL,, fc, in the first instance by the Appellate Division and directed a dismissal ■^'-5>s« ^^v~k^ of the complaint. ^-""^-^ '-j-o-o The defendant's charter provides : " "Whenever any expenditures to ^**^ ^^^^ be made or incurred by the common council or city board or any city officer in behalf of the city for work to be done, or materials or sup- plies to be furnished, . . . shall exceed two hundred dollars, the city clerk shall advertise for and receive proposals therefor, in such manner as the common council, or' as the board or officer charged with making such contract shall prescribe, and the contract therefor shall | . r « . be let to the lowest responsible bidder, who shall execute a bond to /~~^p * said city with one or more sureties, being freeholders, for the faithful '^-'^■*-^^~^ ^ performance of the contract." Laws of 1899, chapter 128, section \ ^'^^ *-«-t. 33 6-ft->--t.*-e». The city clerk in pursuance of said statute and resolutions of the <^_jq^,3„^^-_ 5 common council of the defendant published a notice as follows ry^^ co-Jt/v.©- " Sealed proposals will be received by the city clerk at his office . , . for the regulating and grading of . . . in the city of New Rochelle upon plans and specifications prepared by the city engineer which may be procured upon application at his office in the city hall building. ... A certified check to the amount of $1,000 must accompany each bid. . . . The common council reserves the right to reject any and all bids. . . . " 0^^xrrx.r>^i In pursuance of such notice six bids were filed in accordance with "H^^c tjsj^ said advertisement. The bids were in items which required a compu- tation to determine the aggregate amount of each bid. Accompanying the plaintiff's bid was certified check for $1,000 and a written state- ment by a responsible surety company that in case the contract was awarded to the plaintiff such surety company would become bound as such surety and guarantor for the faithful performance of the contract and execute a bond therefor as required by the statute. The plaintiff was a responsible bidder. After the opening of the bids the com- mon council referred all the bids to the street and sidewalk committee and the city engineer to tabulate and report at an adjourned meeting and the meeting then adjourned to a day specified. On the adjourned day the committee to which the bids were referred reported, by which report it appeared that the aggregate amount of the 378 MOLLOY V. NEW KOCHELLE. plaintiff's bid was $61,626.30, and that he was the lowest bidder. Without discussion or further consideration a resolution was then of- fered and passed as follows : '■'■Resolved, that the bid of F. "VY. Molloy (plaintiff) be rejected." Thereupon a further resolution was adopted as follows :" On motion . . . the contract for the improvement of North Avenue, Horton Avenue and Brook street is awarded to Eusignor Brothers at the sum of $64,204.40." The plaintiff thereupon filed a protest against the action of the common council and subsequently brought this action. At the Trial Term the plaintiff in addition to showing the facts as stated offered evidence to show that his profits on the contract would have been $16,889.40 and rested. The court thereupon dismissed the complaint and ordered that the exceptions taken during the trial be heard in the first instance at the Appellate Division, and that entry of judgment upon the verdict aforesaid be suspended in the meantime until the hearing and decision by said Appellate Division of said excep- tions. The Appellate Division overruled the exceptions and judgment was entered dismissing the complaint.^ Chase, J. Provisions similar to the one in the defendant's charter from which we have quoted are common in municipal charters every- where. Such provisions are intended to prevent favoritism. They result from an effort to prevent official action being influenced by im- proper motives. The same effort to prevent improper official action finds expression in the Village Law (section 332), the General City Law (section 3) and in many municipal charters, where it is provided that an officer therein shall not be directly or indirectly interested in a contract which he, or a board of which he is a member, is authorized to make on behalf of the municipality. Municipal officers acting in behalf of the municipality should not have a personal interest in determining who shall be awarded a con- tract or be affected in any way in their official action towards a favorite among the bidders. Such contracts should be made with the lowest re- sponsible bidder therefor, because there is less opportunity in contracts so let for improper special agreements to the disadvantage of the corpo- ration, and such contracts are in consequence thereof, and because of the competition, more economical for the municipality. T he meaning and purpose of provisions in municipal charters requiring that contra cts shall^^'e n^acle_with_the lowest responsible bidders therefor have been repeate dly defi ned ^nd stated by the courts. ^ * In Brady y. Mayor, etc., of N. F., 20 N. Y. 312, the court, referring to a similar provision in the charter of the city of New York, say : '' It was based upon motives of public economy, and originated, perhaps, 1 Arguments and part of opinion omitted.— Ed. MOLLOY V. NEW KOCHELLE. 379 m some degree of distrust of the officers to whom the duty of making contracts for the public service was committed. If executed according to its intention, it will preclude favoritism and jobbing, and such was its obvious purpose. It does not requi re an y argument to show that a co ntract made in violation of its requirements is null and v oid." (p. 316.) In People ex rel. Coughlin v. Gleason, 121 N. Y. 631, the court, referring to a similar provision in the charter of Long Island City, say : ' ' This provision was inserted in the charter undoubtedly to prevent favoritism, corruption, extravagance and improvidence in the procure- ment of work and supplies for the city, and should be so administered and construed as fairly and reasonably to accomplish this purpose." (p. 634.) Such a statutory provision enacted as a protection to the corporation cannot be used to make a disobedience of its provisions by the muni- 1 cipal officers a double source of punishment to the municipality. If the plaintiff is right in his contention then a disobedience of the provisions of the statute will make the municipality pay the difference between the lowest bid and the bid for which the contract is made and also the profit that the lowest responsible bidder would have made if the statute had not been violated. But such is not the purpose of the charter provision. Although the plaintiff asserts rights under the statute, he also claims to be entitled to recover on contract. No contractual relation can ' ■ — ' ^ arise merely from a bid unless by the terms of the statut e and the ad- vertisement a bid in pursua nce ther eof^s^^ as a ma tterjof^l aw, an accept ance of an offer wholly apart fr om any action on the part of the municipalitj ^r any of its officer s. Such plahary^Ts~not tFe plaintiff 's~ case. The statute and the advertisement in this case call for proposals. The common council reserved the right to reject any and all bids. Under a statute requiring that all contracts shall be awarded to the lowest bidder, the body awarding the contract acting in good faith may refuse to so award the contract if they deem it for the best interest of the city to do so, and may reject all of the bids and readvertise. Walsh y. Mayor, etc., of New York, 113 N. Y. 142. This court in Erving v. Mayor, etc., of Neio York, 131 N. Y. 133, say : " The awarding of the contract on the part of the officer to one of\ several bidders requires the exercise on his part of judgment and dis- j cretion and the award itself should be manifested by some formal official act on his part, and ordinarily reduced to writing and made a part of the records in his department. In no other way can the rights of the parties be preserved, at least prior to the actual execution of the contract. The mere arithmetical operation of ascertaining whi ch bid is the lowest does not constitute an award. The duty of the commis- 380 MOLLOY v. NEW ROCHELLE. sioner to examine the proposals and award the contract is judicial in its nature and character, and the award is the result of a judicial act." (p. 138.) The plaintiff's bid in this ca ge_was_never accepted. It was express- ly rejected by the common co uncil. The plaintiff , therefore, does not sustain a contractual rel ation with the defenda nt an d cannot sustain this action as upon contrac t. The authorities mentioned by the plain- tUTare all distinguishable from this case. They are each based upon an accepted bid. Council for the appellant in his oral argument requested that we should discuss in this opinion the question of the power of the courts in any case to direct by mandamus the officer or board charged with the duty of entering into municipal contracts as to which of several bidders therefor should be awarded the contract. That question is not presented on this appeal for our determination. It should be left for discussion and determination in a case where the question is directly and necessarily involved, unaffected by this decision except so far as it is controlled by what we have actually and necessarily decided herein. The plaintiff cannot sustain this action and the judgment should be affirmed, with costs. Vann, J. I concur in the result upon two grounds : 1. The plaintiff had no right to recover damages from the defend- ant for breach of contract, because there was no contract, as is clearly shown by Judge Chase in his opinion. 2. The remedy of the pla intiff was by matidcwms to compel the ex- ecution of a contract in accordance with the statute^ He was the lowest responsible bidder : he tendered adequate security and tl^ •statTite commanded the common council, unless they rejected all bids, tojiward th e contr a ct toj biiiji. People ex rel. Couglilin\. Gleason^ 121 n7y. gsY. The rejection of his bid andjtliie accejDtance_of_one.^igh^ thousand dollars was^bitrary and_illegal. It was presumptively cor- rupt, for favoritism is one form of corruption. For such a violation of law by those who represent the city there should be a remedy against the city and, as it cannot be by way of damages for breach of contract it should be by mandamus. Otherwise competition may be stifled through the want of inducement to bid for public work. The opinion in People ex rel. Lunney v. Camphell, 1'2 N. Y. 496, in BO far as it declares that there is no remedy by mandamus in such cases, was obiter and should be disregarded. At least, if the. court is of the opinion that mandam^ts will not lie, a suggestion shoilld be made to the legislature, for t he p ublic as well as the lowest bidder need pro- tecti .fliL- In many cases the public can be adequately protected only through the lowest bidder. According to the law, as apparently left by the decision about to be made, the city is helpless because it is in the hands of the wrongdoers, and if the lowest bidder has no remedy, CITY OF VALPARAISO V. GARDNER. 381 there is no one impelled by duty or self-interest to prevent the vio- lation of an important provision, common to nearly all municipal char- ters, designed to protect the public, but now practically useless. CuLLEN, Ch. J., Haight, Wernek, Willard Bartlett and Hiscock JJ., concur with Chase. J. ; Vakn, J., concurs in result in opinion. Judyment affirmed. V- 1^. CTTY OF VALPARAISO v. GARDNER. 1884. 97 Indiana, l.i From the Porter Circuit Court. E. D. Crum2:)acke)\ H. A. Gillette and A. D. Bartholomeiv^ foil appellants. W. Johnston, for appellee. Elliott, C. J. The complaint of the appellee avers that he is a resident taxpayer of the city of Valparaiso; that the municipal ofiicers are about to let a contract to a water-works company for sup- plying the city with water for a period of twenty years, at an annual expense to the municipality of $6,000; that the corporate indebted- ness exceeds five per centum of the assessed value of the taxable property of the city and that there is no money in the treasury. The prayer of the complaint is for an injunction restraining the corporate authorities from entering into the contract. The appellants answered, admitting that the appellee was a tax- payer; that the city was indebted in excess of two per centum of the aggregate value of the taxable property, and averring that the city has a population of over five thousand persons and is rapidly increas- ing in population ; that it has no facilities for extinguishing fires except three cisterns, which are wholly inadequate, and that the safety of the city demands that the contract mentioned in the com- plaint be entered into and a supply of water secured; that the assessed value of taxable property', as shown by the assessment roll, amounted to $1,350,000; that from other sources than taxation the revenue of the city is §2,500 per annum; that the ordinary current expenditurea are less than $6,000 per annum, and that the annual revenues of the city are sufficient to pay all the ordinary expenditures of the city and the water rent of $6,000 per annum, besides providing for the accu- mulation of a sinking fund, as the law requires ; that the intention was that the terms of the proposed contract should be so adjusted that when the water-works were completed and an instalment of rent earned, there would be money sufficient in the treasury to pay it, derived from current revenues, and to so fix the time of the payment 1 Portions of opinion omitted — Ed. 382 CITY OF VALPARAISO V. GARDNER. of future instalments that they should be within the current revenues of the cit}', and yet leave money sufficient to meet all other corporate expenses. In 1881 an amendment to the Constitution was adopted, in which Shis provision is incorporated: " No political or municipal corpora- tion in this State shall ever become indebted, in any manner or foi any purpose, to an amount, in the aggregate, exceeding two pei centum on the value of the taxable property within such corporation, to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness; and all bonds or obligations, in excess of such amount, given by such corporation, shall be void." This provision received consideration in Sackett v. City of New Albanij, 88 Ind. 473, but the question there presented and decided was very different from that which here faces us. The point decided in that case was that a city could not issue bonds for current expenses where there were no funds in the treasury and the existing indebtedness exceeded two per centum of the value of the taxable property of the municipality. There the question was not whether the claim which the municipal officers were about to pay in bonds was or was not a debt within the meaning of the Constitution; while here that is the question, so that we come to the decision of this case unfettered by any former adjudication of this court. The question is a grave one, and not entirely without difficulty. If we hold that the contract to pay an annual water rent of $6,000 . during a period of twenty years creates a debt for the aggregate sum of 8120,000, and is a debt within the prohibition embodied in the Constitution, we should lay down a principle that would, in a great majority of instances, put an end to municipal government. If it be true that an agreement to pay a given sum each year for a long period of years constitutes a debt for the aggregate sum resulting from adding together all the yearly instalments, then it is extremely doubtful whether there is a city in the State that has authority to repair a street, dig a cistern or build a sidewalk, for nearly every city has contracts for gas and water supplies running for a long series of years, in which the aggregate amount of annual rents would of themselves equal, if not exceed, the limit of two per centum on the value of taxable property. "We know, as matter of general knowl- edge, that water-works and gas-works I'equire the outla}^ of enormous sums of money, and that such enterprises are not undertaken under contracts running for short periods of time. If the aggregate sum of all the yearly rents i*^ to be taken as a debt within the meaning of the Constitution, then many cities will be left without the means of procuring things so essential to public welfare and safety. We are not to presume, unless coerced by the rigor of the words used, that the framers of the amendment, or the electors who voted for it, intended to destroy the corporate existence of our municipalities or CITY OF VALPARAISO V GARDNER. 383 to leave them without water or light. Nor are we to presume that the electors were ignorant of the existence, condition and necessities of our great towns and cities. On the contrary, we are to presume that these things were known to the electors, and that they intended to foster the best interests of these instrumentalities of local govern- ment. An error frequently finds its way into trains of reasoning li'om the assumption, often made, that the officers are the corpora- tion. This assumption is radically erroneous, for it is the inhabi- tants, and not the officers, who constitute the public corporations of the land. Grant Corp. 357; Loivber v. Jfa>/o)\ etc., 5 Abbott Pr. 325. Clarke v. Clt/y of Rochester, 24 Barb. 446. To deny the right to procure water and light is to deny it to the inhabitants of the towns and cities, and these form no inconsiderable part of the pop- ulation of the State. We cannot, therefore, by mere intendment declare that the electors of the State meant to lay down a rule that should practically take from the inhabitants of our cities the power to supply themselves with water or light. To reach the couckisiun that they meant to do this, we must find clear warrant in the language of the constitutional provision itself. We agree that if it be found that the language used is clear and explicit, we must give it effect, no matter how disastrous the consequences may be. While^ it is oui* duty to yield to the words of the Constitution, still, in determining wtrat^nrercntiTgTEey were intended to have, it is proper to consider the cTfcutnstances under which the provision was adopted and the object it was intended to accomDlish. Cooley Const. Lim. (5th ed.) 78, 79. In view of the warring among the adjudged cases it is not easy to affirm that the word "debt " has a firmly settled meaning. In one case it was said, "But the compensation to this contractor was not a debt within the sense of this provision, until the service was per formed and the contractor was entitled to be paid. It was, no doubt, an obligation, in some sense, from the time the contract was entered into, but it was not a debt in the popular sense " of the term. Weston V. City of Syracuse, 17 N. Y. 110. A similar definition is annexed to the word in the opinion of the court, written by the eminent jurist, Judge Dexio, in Garrison v. Hoive, 17 N. Y. 458. It was said in Wentworth v. Whittemore, 1 Mass. 471, " but whenever it is uncertain whether anything will ever be demandable hy virtue of the contract it cannot be called a debt." By the Supreme Court of California it was said: "A sum payable upon a contingency, how- ever, is not a debt, or does not become a debt until the contingency has happened." People v. Arguello, 37 Cal. 524. In Sackett v. City of New Albany, supra, this language was used: " By * indebted- ness,' in this connection, we mean an agreement of some kind by the city to pay money where no suitable provision has been made for the prompt discharge of the obligation imposed by the agreement." Conceding that there are cases giving the word " debt" a somewhat 384 CITY OF VALPARAISO V. GAEDNER. different meaning from that affixed to it by these authorities, still they are sufficient to prove, at least, that the word cannot be said to have a firmly settled meaning. It is not necessary for us to decide that the meaning given the word in the cases cited is that which the word invariably possesses, for it is sufficient for our purpose to assume that its meaning is not so fixed and definite as to forbid con- struction. The word used in the constitution is "indebted," bi ! without ascertaining what the word "debt" means we cannot afiii a meaning to that word, for its popular meaning is " placed in debt," or as Worcester puts it, " being in debt." It is obvious that a cor- poration owing no debt cannot be indebted. Our leading purpose is, therefore, to ascertain what meaning the authors of the Constitution intended the word " indebted" to have, and we address ourselves to its accomplishment. It is clear that if the city should fail to perform its contract, the recovery would be for damages for a breach of contract, and not the contract rate of com- pensation, and, therefore, it cannot be true that the whole of the compensation is certainly demandable by the corporation with which it contracts. It may be that but a small part of even one year's compensation can be recovered. On the other hand, the failure of the water company to perform may put an end to the contract, and that would, of course, terminate all liability of the municipal corpo- ration. There could be no action maintained against the city for the recovery of compensation under the contract without evidence that the water had been furnished, and this proves that there is no indebtedness until the water has been supplied in accordance with the terms of the contract. The effect of the proposed contract is that the city shall be liable for water as it is furnished and not before. It is not until after the water has been furnished that there can be justly said to be a debt, for, while there might be a liability for damages, in case of a breach on the part of the city, there is certainly none under the contract until the city has received that for which it contracted. If it can pay this indebtedness when it comes into existence, without exceeding the constitutional limitation, then there is no violation of the letter, and surely none of the spirit of the Constitution. We are ciireful to say when the debt comes into existence, and not to say when it becomes due, for between these things there is an essential difference. The object to be accomplished by the amendment, the condition and necessities of our municipalities, as known to tlie authors of t-he amendment, and the just force of the language employed, authorize us to conclude that the inhibition of the Constitution does not apply to contracts for water to be paid for as the water is furnished, pro- vided it is shown that the contract price can be paid from the current revenues as the water is furnished and without increasing the corpo- tate indebtedness beyond the constitutional limit. CITY OF VALPARAISO V. GARDNER. 385 The question was very fully discussed in Grant v. City of Daven- port, 36 Iowa, 396, where it was held that a contract entered into by the city for the supply of water for a term of years, at an annual rental, is one relating to the ordinary expenses of the city, and that the annual rental is not an indebtedness within the meaning of the Constitution. One of the illustrations used in the course of the opinion is so apt that we quote it: " Suppose a man having a family to support is without other means to do it, except his salary, which is adequate for that purpose. He is compelled to rent a house to live in, and by a contract for a term of years he can reduce its cost, and he therefore makes a lease for ten years at $300 per year, or $3,000 for the term, the rent being payable monthly, quarterly or annually. Has that man created an indebtedness of $3,000? " We have assumed that the supply of water is necessary to the wel- fare of the inhabitants of the municipality, and that it constitutes one of the items of current expenditure essential to the welfare of the corporation, and this assumption rests upon the facts pleaded in the answer. This distinguishes the case, as is well shown in Grant V. Clti/ of Davenport, supra, from the cases in which property is pur- chased or subscriptions made to the capital stock of railroad or other corporations. It is the items of expense essential to the maintenance of corporate existence, such as light, water, labor and the like, that constitute current expenses payable out of current revenues. The authorities agree that current revenues may be applied to such pur- poses even though the effect be to postpone judgment creditors. Coy V. City Council, 17 Iowa, 1; Coffin v. City Cou?icil, 26 Iowa, 515; Gra7it V. City of Davenport, supra. When the current revenues are sufficient to fully pay the current expenses necessarily incurred to maintain corporate life, there cannot be said to be any debt. We do not assert that a debt may be created even for current expenses, if its effect will be to extend the corporate indebtedness beyond the constitutional limit, but we do assert that where the current revenues are sufficient to defray all current expenses without increasing the indebtedness, there is then no corporate debt incurred for such expenses. To illustrate our meaning, suppose a laborer is employed on the first day of April to render services on the first day of May, that on the day of the employment there is no money in the treasury, but on the first day of May, when the services are rendered, there will be more than enough yielded by the current revenues, there is in such a case really no debt. Again, suppose that on the first day of April gas is needed for that month, and that on each day of that month thfe current revenues are sufficient to pay each day's gas bill, there will be no debt even though there was not sufficient money to pay the month's account in the treasury on the day the contract was made- Such contracts do not create a debt prior to the rendition of the ser- vices in the one case, or to the furnishing of gas in the other; they 386 CITY OF VALPARAISO V. GARDNER. Simply devote to current expenses current revenues. While, as decided in Sackttt v. City of New Albany^ siq)ra^ the debt cannot be made to exceed the constitutional limit even for current expenses, no matter bow urgent, yet current revenues as they come in may be used to defray such expenses, and if they are sufficient for that pur- pose, then no debt is created. If a bond, note, or other obligation is executed, then, doubtless, a debt is created, for such things constitute evidences of indebted- ness, but that is not the case here. So, if the consideration of the contract is received at once, instead of being yielded in the future or at intervals, then it might be said that there was a debt, but where there is nothing owing until after the thing contracted for is done or furnished, and that thing is a part of the necessary yearly expenses of the municipality, there will be no debt, if, when the thing is done or furnished there will be money in the treasury, yielded by current revenues, sufficient to fully pay the claim without encroaching upon other funds. This we understand to be the case made by the answer, and we think it a case not within the inhibition contained in the constitutional amendment. If a different view be taken from that which we maintain, startling results would follow in the application of the principle to other cases. Take, for instance, a merchant having a large number of clerks employed for a year each, and at a fixed salary, could such a mer- chant in making out his tax-list deduct the aggregate amount of all the salaries computed to the end of the year, on the ground that it constituted an indebtedness? Take, again, the same supposed case, and would any one say that the merchant's solvency was to be deter- mined by taking into consideration the aggregate of the salaries that would be due his clerks at the end of the year? Take, for another example, the case of a private corporation actively engaged in busi- ness, could it be pushed to the wall on the ground that it was insol- vent, by evidence that it had contracted with a large number of men for a year's service, and that the aggregate sum due at the end of the year would be much greater than the value of its property at the opening of the year? Take still another example, a municipal corporation — and here there need be no supposition — with its officers (some of them with terms of several years), its policemen and its firemen, is it indebted at the beginning of the year, for the grand aggregate of all the salaries to the end of all the terms? In the case of the merchant and of the private corporation, it certainly would be held, without hesitation or doubt, that if the current income or profit would discharge the obligations there would be no indebtedness; and this must be true of municipal corporations in cases where there will be money in the treasury, derived from current revenues, sufficient to pay for services rendered or things furnished, as part of the current corporate expenses, when the services are rendered or the things actually furnished. Expenses of such a character should be deemed SPILMAN V. CITY OF PARKERSBURG. 387 incidental expenses of the corporate business, and not debts, and as long, at least, as the current revenues will pay these expenses with- out taking from funds devoted to other purposes by command of the corporate charter what properly belongs to them, there is no indebted- ness within the meaning of the Constitution. Judgment reversed^ xvlth instructions to overrule the demurrer to the answer^ and to proceed in accordance with this opinion. SPILMAN V. CITY OF PARKERSBURG. 1891. 35 West Virginia, 605.1 J. B. Jackson and J. A. Hutchinson^ for appellants. [Citations of counsel omitted.] jB. jSL. Ambler^ for appellee. Holt, J. Article 10, section 8, of the C onstitutio n of West Vir- ginia, provides that " no county, city, school district or municipal corporation shall hereafter be allowed to become indebted in any manner or for any purpose to an amount, including existing indebted- ness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebted- ness ; nor without at the same time providing for the collection of a direct annual tax, sufficient to pay annually the interest on such debt and the principal thereof within, and not exceeding, thirty-four years; provided, that no such debt shall be contracted under this section unless all questions connected with the same shall have been first submitted to a vote of the people, and have received three-fifths of all the votes cast for and against the same." This suit involves this provision of the state constitution, and is a bill in equity, filed in the circuit court of Wood county on the 9th day of April, 1891, by B. D. Spilman, who sues on behalf of himself and all other citizens, residents and tax-payers in and of the city of Parkersburg, W. Va., against the city of Parkersburg and others, to restrain and inhibit the creation by the city of a debt for the erectioiLilf_aajeJjecJricJight plant, alleged to be in violation of the above-mentioned section of tEe^ate constitution. The injunction was granted on May 25, 1891, until further order, and thereupon defendants gave notice of motion to be made on June 22, 1891, to dissolve, on which day the judge in vacation heard the motion, but overruled the same, refusing to dis- solve the injunction, and from this order defendants below, plaintiffs in error, having obtained this appeal. The facts are as follows : The total valuation of the taxable prop- erty on the 10th day of November, 1890, ascertained by the last 1 Portious of opiuiou omitted. — Ed. 388 SPILMAN V. CITY OF PARKERSBURG. assessment in the city for state and county taxes, was S3, 818, 120 — five per cent of wliicli is $190,906. The then existing indebted- ness of the city was $190,000. On the 18th day of March, 1891, the Thomson-Houston Electric Company entered into i. written contract of that date, whereby the electric company agreed to erect and instaU for the city a certain electric plant in accordance with specifications attached and made part of the contract, for which the city agreed to provide a suitable site, boiler and foundation for engine and dyna- mos, to pay all taxes on such apparatus and plant, and keep the same in repair, and also agreed to lease from the electric, company such plant, furnished for street lighting, for a term of five years from the completion of the plant, and to pay at the end of each three months after its completion — that is to say, quarterly — the sum of $1,625 for the use thereof, except that each succeeding payment was to be $18.75 less than the preceding payment; and at t he expiration of the term of five years the city has the right to buy the same at the price of~$l — plainly a contract of purchase in legal effect; in fact so desig- nated twice in a paper made part of the contract. No question con- nected with this transaction was submitted to the people; no vote was had thereon. In addition, there were in November, 1890, funds receivable from licenses, etc., the sum of $17,444.53. Blackstone (vol. 3, p. 154) saj's: "The legal acceptation of debt is a sum of money due by certain and express agreement." This is given in connection with his treatment of the action of debt. In the constitution it means any debt created by contract, express or implied; any voluntary incurring of any liability to pay in any manner or for any purpose, when the given limit of indebtedness has been reached. It may be a debt payable in the future as well as one paj^able presently; one payable upon some contingency, such as the delivery of property, as well as for property already delivered. When the contingency happens, the debt becomes fixed; it exists. It only differs from an unqualified promise in the manner in which it is created. And, since the purpose of the debt is expressly excluded from consideration, it can make no difference whether the debt be for necessary current expenses or for something else. " I do not deem it necessary to review seriatim the many cases on the subject, but rather, with their help, make a careful analysis of our own constitutional provision on the point. 1. What kind of indebtedness is prohibited? "If a man have any more or less of meaning in the term he makes use of than another, he does not talk with him to the same point." By the term " indebtedness," as here used, is meant the state of being by volun- tary obligation, express or implied, under legal liability to pay in the present or at some future time for something already received, or for something yet to be furnished or rendered. This includes every Kind of indebtedness, no matter in what manner created, or volun« SPILMAN V. CITY OF PARKERSBDRG. 389 tarily brought about; or for what purpose, whether it be for munic- ipal self-preservation or not; whether for pure air, pure water, good light, clean and convenient and safe streets and sidewalks; whether it be payable now or hereafter, payable quarterly or annually, or at any date running on for thirty-four years; whether for current ex- penses or fixed and definite debts or charges; whether for personal property or real property, leasehold or freehold. It is none the less indebtedness, created in some manner, and for some purpose, and is within the purview and the bar of the constitution. The confusion as to " current expenses " grows out of the failure to give due weight to another part of section 8, article 10. 2. Provision for payment. The city shall "at the same time provide for the collection of a direct annual tax sufficient to pay annually the interest on such debt, and the principal thereof within and not exceeding thirty-four years." If it is an item of current expenses or any thing else for the payment of which provision has already been made by levy laid, then it needs no other provision fo its payment, and is not within the letter of the constitution; neithe is it within its true meaning, for a draft on a fund already in hand, or by levy already made and provided, meets it and discharges it, sc that no indebtedness arises. Thus it happens that the mere coinci- dence of current expenses being generally met and discharged by a fund in hand or already levied for is apt to mislead us into the view that indebtedness to pay current annual expenses is not within the prohibition; whereas, as we have seen, it is as absolutely pro- hibited as indebtedness created in any other manner or for any other purpose. This clause of the section is for the benefit of the creditor. 3. " Shall not hereafter be allowed to become indebted in any man- ner or for any purpose to an amount, including existing indebted- ness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebted- ness." This provision is intended, by fixing a maximum limit in any and all events, to guard the people of the town from their own thoughtlessness or recklessness as to the burden put upon others, the large tax-payers being generally in the minority. It is intended to protect posterity by its limit as to time, and the tax-payers by its limit as to quantity. 4. " Not exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness." This gives us a precise and definite standard by which to measure and ascertain the extent to which the indebtedness may go and we Bee that it does not include tithables, nor licenses, nor market fees, Bor wharfage, nor police court fines, nor bridge tax, etc. 5. " Provided, that no debt shall be contracted under this section, 390 SPILMAN V. CITY OF PARKEESBURG. unless all questions connected with the same shall have been first sub« initted to a vote of the people, and have received three-fifths of all the votes cast for and against the same," plainly intending that no such indebtedness should be created in a corner, and without the knowledge and sanction of the tax-paying voters. It should be pub- lic, and run the gauntlet of full and free discussion. The people must be in earnest about this matter, or they would not by their organic law have barred cut this debt-creating power with a triple hedge of safeguards. Its wisdom is unquestioned, and it has found or is rapidly finding its way into all state constitutions. It is plainly remedial; therefore the courts should uphold it with a steady hand, and construe and apply it in the advancement of the benefit sought for, and in suppression of the evil intended to be suppressed, and not give up the citadel to the first hard case, with bad law in its train, that demands its surrender. When we apply this section, thus read and construed, to the facts of the case in hand, we find this electric contract unable to penetrate even the outer wall. 1. Wh,at_inat ters it w hat we call the thing contra ct ed for, or tba pontract itself — lease, purchase or executory contract to lease _or_ purchase — the thing thus created is a debt. It is executory; it may never be carried out. None the less it is a present binding agree- ment for the creation of a prospective debt. 2. The five per cent limit was already reached — it may lack a trifle, but virtually reached.- The maximum measure is full. There is room for no more indebtedness. We are not permitted to piece on to the last aggregate tax value the $17,000 or $20,000 derived from city licenses, police fines, etc., in order to broaden the five per cent fund by enlarging the basis from which it is calculated, so as to make room for another debt. The constitution does not say so, but by what it does say excludes it. Wh}^ not take this fund, and buy the electric apparatus? Then there would be no debt. Not being capable of being used to enlarge the basis of calculation at the one end, neither can it be used to belittle the debt at the other, to make it insignificant, compared with the means of payment. To say that it is sufficient to pay with will not do. It must be applied ; and when that is done the dispute is ended. 3. The people have had no say in the matter, they have not voted, nor had an opportunity to vote. The right of the city to create indebtedness is exhausted. The indebtedness amounts to $190,000; the maximum limit is $190,850.50 — leaving a margin of $850.50. 4. On behalf of the city authorities it is urged with a good deal of force that this is a contract for light — one of the public necessities of city life ; that to provide it is one of the urgent items of current fcxpense; that a modern plant cannot be obtained by yearly contract: that it is so costly that no one will take the risk of supplying it in that way, but that the only obtainable terms are for a term of years, say five at the least, with quarterly or annual payments; and that as the SPILMAX V. CITY OF PARKERSBURG, 391 rent or installments of pnrchase-money fall dne onl}' as the compen- Baiion has been earned, the funds are b}- that time in the treasury wild which to pay. All this sounds plausible enough, but the trouble with it is no levy has been made to meet it ; no provision has been made or can be made for a direct annual tax sufficient to pay it, because the in- debtedness already existing is up to the maximum allowed by law ; and the contract does not restrict its source of pavment to current funds_ derivable from sources other than taxation, such as licenses, police fines,^ efc77"if that would avoid the trouble (as to which we express no opinion). That ma}- \)Q one of the sources of revenue already set apart or relied on to pay interest and principal of the §190,000 of city indebtedness already- existing. The city is rapidly increasing in taxable wealth, no doubt, but the constitution requires us to take as the basis the last assessment, and that is before us among the facts of the case, and we are not allowed to look ahead to some conjectural assessment not yet made. I have examined all these cases of "necessary current expenses," as the}' are called, to which our attention has been directed ; examined some of them in a perfunctory manner it is true, for no man nowada\-s can deliberatel}- read ever}* thing. [After citing a large number of au- thorities.] I need not stop to compare and distinguish; that has been well done in 1 Dill, Mun. Corp. (4th Ed.), § 133 et seq., and notes. And I have been led to the conclusion that the safe and sound construc- tion is laid down in the much-considered case (three times before the court) of Prince v. City of Quincy, 128 111. 443 (1889); 21 N. E. Rep. 768. " The effect of this constitutional inhibition is to require cities indebted to the limit fixed by the constitution to carry on their corporate'" operations wliile so indebted upon the cash s3-stem, and. not upon credit to any extent or for an}' purpose ; " that is, payment must be provided for by levy laid, as distinguished from levy here- after intended to be laid. " If an indebtedness of a city for current expenses and supplying water is forbidden as being in excess of the constitutional limit, the contract upon which it arose, though in itself executory, and creating only a contingent liability, is also forbidden. Prohil)ition of the end is prohibition of the direct, designed and appropriate means." This is the true construction. Any other would deprive these constitutional limitations of the force and efficiency indispensably required to prevent or cure the evil aimed at. To this conclusion the learned judge of the circuit court who entered the order complained of was brought, no doubt, after a careful consideration of all the authorities. I regard his conclusion as the onlv safe and sound one. We are working in constitutional harness in the piping times of peace, and do not feel called on to heed tiie exacting imperi- ousness of these higher laws of municipal self-preservation ; but are forced to say what he has in effect said : " The city fathers, when the constitutional limit of voluntary indebtedness, as in this case, haf been reached, must for the time cast about in search of the philoso 392 EAUCH V. CHAPMAN. pher's stone, ' pay as j'ou go.' " Therefore, the order of the circuit court of Wood count\-, entered by the judge in vacation on the 22d day of June, 1891, overruling defendants* motion to dissolve the injunction awarded on the 25th day of May, 1891, is affirmed. ^v RAUCH V. CHAPMAN. 1887. I & Washington, 5&8A Appeal from superior court, Klickitat count}'. W. £. Preshy and Huntington & Wilson, for appellant. C. H. Spalding, for respondent. Reavis, J. Suit in equity, by a taxpayer of Klickitat county, against the count}' treasurer to enjoin the payment of certain county warrants, on the ground that they were issued after the constitutional limitation of count}- indebtedness had been incurred. The complaint, after other necessary allegations, set forth that the indebtedness of the county was more than one and one-half per centum of the taxable propert}' therein, and no validation b}' vote of the electors had beea made of any additional indebtedness. The answer stated, among other defenses to the suit, that the warrants in controversy were compulsory obligations imposed upon the count}' by the constitution and laws of the state ; and specified some of the purposes for which the warrants were issued, among which were services for jurors in the superior court, witness fees in criminal proceedings, and sheriff's expenses in serving criminal process, and expenses incurred at the general state election. Plaintiff demurred to this affirmative defense, which demurrer was sustained by the superior court, and the court thereupon, among other facts, found the following, which are matez'ial to the consideration of the cause by this court : " 7th. That the total indebtedness of said county on the 9th day of March, 1893, and during all of the time of the issue of the warrants now called was $85,441.92, and greatly exceeded the constitutional limit of indebtedness for said county, after deducting therefrom the cash in the treasury and all taxes levied and uncollected. " 8th. That the warrants now called by the county treasurer are the debts contracted after said 9th day of March, 1893, and were issued between the 2nd day of April, 1893, and the 26th day of July, 1893, during all of which time said indebtedness of $85,441.92 was outstanding, and all of said warrants now called were and are in excess of the constitutional limit of indebtedness of said county and were issued without the assent of the voters of said county first had and obtained at an election held for that purpose, and they have not been validated by any vote of the electors of said county since their \ssue." * Portions of opinion omitted. — Ed. RAUCH V. CHAPMAN, 303 Judgment was rendered against the defendant and a permanent inju nction iss ued against the payment of the warrants designated ia the complaint. The defendant appeals. 1. Respondent maintains here that the payment of the warrants is inhibited by § 6 of art. 8 of the constitution of this state, of which the part material for consideration is as follows: "No county, city, town, school district or other municipal corporation shall for any purpose become indebted in any manner to an amount exceeding one and one-half per centum of the taxable property in such county, etc., without the assent of three-fifths of the voters therein voting at an election for that purpose. . . . Provided, that no part of the indebted- ness allowed in this section shall be incurred for any purpose other than strictly county, city, town, school district or other municipal purposes;" and with the further proviso that any city or town shall be allowed to become indebted to a larger amount, not exceeding five per centum additional for supplying such city or town with water, light and sewers, when the works for supplying the same shall be owned and controlled by the municipality. • ••••••• When the constitution of Washington was adopted by the people of the newly-born state, the various county governments in the terri- tory were recognized and tlieir organizations and powers in a great measure continued. A large body of laws applicable to the new state, and which the people had for a long time been accustomed to, were found and continued in force. At this time some of the coun- ties in the state were already indebted to an amount equal to the constitutional limitation of one and one-half per centum. The state itself inherited from its territorial form liabilities which very nearly equalled the limitation on state indebtedness prescribed in § 1, art. 8 of the constitution. The several counties, in addition to their organ- ization for local purposes, and having conferred upon them the power to control and build county roads and bridges, erect public buildings for county purposes, and do many other things connected with the county as a corporation, also had imposed upon them certain duties by the state, and became governmental agencies, in the territory comprised in the county, for the state. Section 11 of art. 11 author- izes any county, city, town or township to make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. Section 12 of the same article provides : " The legislature shall have no power to impose taxes upon coun- ties ... or upon the inhabitants or property thereof, for county . . . purposes, but may by general laws vest in the corporate author- ities thereof the power to assess and collect taxes for such purposes." The duty has been imposed upon the several counties in this state to provide for and pay certain necessary expenses for the enforce- ment of the criminal laws of the state and for expenses incurred at 394 RAUCH V. CHAPMAN. the regular biennial state elections at which county and state ofRcera are elected, and in carrying out other functions of the state; and also to make expenditures necessary for the existence of the county organization. Section 8, art. 6 of the constitution, provides for biennial elec- tions. Section 5, art. 11, also provides for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county officers as public convenience may require, and devolves upon the legislature the power to prescribe their duties and fix their terms of office, and to regulate the compensation of all such officers in proportion to their duties, and that for that purpose the legislature may classify the counties by population. 2. The objects of government have usually become multiplied with the development of complex and artificial conditions of society. There is much controversy at times among our statesmen as to the necessary and proper limitations upon the powers of government, both state and municipal, but all arc agreed that certain necessary fundamental functions of government must always be expressed and exercised. The protection of life, liberty and property, the conserva- tion of peace and good order in the state, cannot remain in abeyance. These functions of government are elementary and indestructible. The constitutional convention which framed, and the sovereign people who adopted, a republican form of government for the state of Washington, had these known principles in mind. Section 10 of the Declaration of Rights prescribes: "Justice in all cases shall be administered openly and without unnecessary delay;" and in § 22 it is declared : '* In criminal prosecutions the accused shall have the right to . . . have compulsory process to compel the attendance of witnesses in his own behalf, have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed. ..." Provision is also made in the constitution for the organization and maintenance of the county government and, as we have seen, its administration is ancillary to that of the state. All these provisions of the organic law are alike declared to be man- datory. It would make these various provisions of the constitution contradictory and render some of them nugatory, if a construction were placed upon the limitation of county indebtedness which would destroy the efficiency of the agencies established by the constitution to carry out the recognized and essential powers of government. It cannot be conceived that the people who framed and adopted the cou- Btilution had such consequences in view. The judicial power was vested in the courts; the law must be administered through them: the jury is an essential part of the judicial procedure; justice must be administered without unnecessary delay between the citizens of the state; persons accused of crimes must have a speedy and impar EATJCH V. CHAPMAN. 395 «ial jury trial; compulsorj^ process must be served by the sheriff, witnesses are compelled to appear. The regulation of much of thie procedure, and the compensation of jurors and witnesses, as well as of officers, in the counties, is vested in legislative discretion. Sec- tion 1 of art. 9 of the constitution declares: "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders;" and § 2, same article: "the legislature shall provide for a general and uniform system of public schools." Our constitution seems to have added to the proper and essential functions of free government the maintenance of public schools. 3. The construction by some of the other courts of similar consti- tutional provisions may here be examined. In Grant Count}/ v. Lake Coicnty, 17 Ore. 453 (2"l Pac. 447), the court, referring to the consti- tution of Oregon, said : " The constitutional inhibition that no county shall create any debts or liabilities which shall, singly or in the aggregate, exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion, does not imply that all debts and liabilities against a county over and above that sum are necessarily obnoxious to that provision. To justify the court in finding the said conclusion of law, it should have found that the county created the indebtedness. Counties do not create all the debts and liabilities which they are under; ordinarily such debts and liabilities are imposed upon them by law. A county is mainly a mere agency of the state government — a function through which the state administers its governmental affairs — and it has but little option in the creation of debts and lia- bilities against it. It must pay the salaries of its officers, the expenses incurred in holding courts within and for it, and various and many other expenses the law charges upon it, and which it ia powerless to prevent. Debts and liabilities arising out of such mat- ters, whatever sum they may amount to, cannot in reason be said to have been created in violation of the provision of the constitution referred to, as they are really created by the general laws of the state, in the administration of its governmental affairs. Said pro- vision of the constitution, as I view it, only applies to debts and liabilities which a county, in its corporate character, and as an arti- ficial person, voluntarily creates." This decision has been followed by the same court in Wormington V. Pierce, 22 Ore. 606 (30 Pac. 450) ; Burnett v. Marldey, 23 Ore. 436 (31 Pac. 1050), and Dorothy v. Pierce, 27 Ore. 373 (41 Pac. 668). The supreme court of California, in Lewis v. Widber, 99 Cal. 412 (33 Pac. 1128), observes: *' The respondent contends . . . that he should not pay petitioner's salary on account of § 18 of art. XI of the state constitution, which reads as follows: 'No county, city, town, township, board of educa- tion, or school district, shall incur any indebtedness or liability io 396 BAKNARD V. KNOX COUNTY. any manner, or for any purpose, exceeding any year tlie income and revenue provided for it for sucii year, without the assent of two-thirds of the qualified voters,' etc. It is quite apparent, however, that this clause of the constitution refers only to an indebtedness or liability which one of the municipal bodies mentioned has itself incurred, that is, an indebtedness which the municipality has contracted, or a liability resulting, in whole or in part, from some act or conduct of such municipality. Such is the plain meaning of the language used. The clear intent expressed in the clause was to limit and restrict the power of the municipality as to any indebtedness or liability which it has discretion to incur or not to incur. But the stated salary of a public officer fixed by statute is a matter over which the munici- pality has no control, and with respect to which it has no discretion; and the payment of his salary is a liability established by the legis- lature at the date of the creation of the office. It, therefore, is not an indebtedness or liability incurred by the municipality within the meaning of said clause of the constitution." [After citing various authorities, some of which are in conflict with the foregoing cases.] We are constrained to rule that the constitutional limitation of county indebtedness in § 6 of article 8 of our constitution, does nof include those necessary expenditures made mandatory in the consti- tution and provided for by the legislature of the state, and imposed upon the county; that the payment of these is a prior obligation, and other liabilities incurred by the county are subject and inferior to these primary obligations which must of necessity always continue. The cause is reversed and remanded to the superior court of Klickitat county, with instructions to proceed in conformity to the views expressed in this opinion. Scott, C. J., and Anders, Dunbar and Gordon, JJ., concur. BAR'NARD v. KNOX COUNTY. 1891. 105 Missouri, 382.1 Appeal from Knox Circuit Court. H. M. Pollard^ for appellant. Charles D. Steivart and William Clancy, for respondent. Black, J. This is a suit upon a duly protested warrant issued by the county court of Knox county, to George D. Barnard, dated the seventh day of May, 1885, for 883.90, payable" out of any money in the treasury appropriated for the contingent fund." Barnard assigned the warrant to the plaintiff corporation. I'tit. defense is that the debt, for which the warrant was issued, 1 Argumeutb omitted. — Ed. BARNARD V. KNOX COUNTY. 397 was created after the county court had issued warrants in excess of the revenue for 1885. In anticipation of this defense, it is alleged in the petition that though the county court had issued warrants in excess of the total revenue for that year, still the plaintiff's debt was created by law, and not by the act of the county court, and that the county debts for that year created by law were less than the county revenue for the same year. The case was tried on the following agreed facts: "That, on the seventh day of May, 1885, the clerk of the county court of Knox county, Missouri, bought from Geo. D. Barnard certain books and stationery for $83.90; that said books and stationery were suitable and necessary for the use of said clerk in his said otiicial capacity; that thereupon said Barnard presented said bill, for said books and stationery, to the county court of said county, which said court audited and allowed said bill, and issued the warrant filed herein; . . . that there is no money in defendant's treasury now to pay the same; that, at the time of issuing said warrant, the said county court hid issued warrants in excess of the total revenue of said county for the year 1885, raised by a levy of fifty cents on the hundred dollars, and from licenses and other sources; but excluding the warrants issued during the said year for support of paupers, and roads, and bridges, the remainder did not exceed such fifty cents on the hundred dollars; . . . that no vote of the people of the county, on the ques- tion of paying this warrant, or the creation of the debt evidenced thereby, has ever been had. The annual revenue of the county, to the extent of fifty cents on the one-hundred-dollar valuation, is now entirely consumed by the ordinary annual expenses of the county government." The provisions of the constitution to be considered in the disposi- tion of this case are found in sections 11 and 12, of article 10. The first provides: " For county purposes the annual rate on property, in counties having $6,000,000 or less, shall not in the aggregate exceed fifty cents on the one-hundred-dollar valuation." The same section fixes the maximum annual rate of taxes for city and town purposes, and for school purposes, and contains these exceptions: First. The annual rate for school purposes may be increased to a designated amount by a majority vote of the taxpayers. Second. The rate may be increased bj' a two- thirds vote for the purpose of erecting public buildings. The rate allowed to each county is to be ascer- tained by the amount of taxable property therein, according to the last assessment. " Said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing or bonds which may be issued in renewal of such indebtedness." Section 12 declares: " No county . . . shall be allowed to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and^j-evenue provided for such year, without 398 BARNARD V. KNOX COUNTY. the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; nor in cases requiring such assent shall any inJebteduess be allowed to be incurred to an amount includ- ing existing indebtedness, in the aggregate, exceeding five per centum on the value of the taxable property therein," etc. The statute makes it the duty of the county court at its May term, in each year, to divide the revenue collected, and to be collected, into five designated and described funds, one of which is a contingent fund not to exceed one-fifth of the total revenue of the county for county purposes for any one year; and each fund is declared to be a sacred fund for the purpose for which it is designated. R. S. 1879, sees. 6818, 6819. In 1875 and prior thereto, many of the counties and cities in this state were burdened with debts, because of bonds issued in aid of railroads, some of which were never built, and on account of extrav- agance, frauds and defalcations of officials. To put an end to this state of affairs, the constitution adopted in that year denied to any county or city the right to thereafter take stock in, or loan its credit to, any railroad company or other corporations; and, by the two sections before mentioned, sought to bring the administration of county affairs to a cash basis. As said in Book v. Earl, 87 Mo. 246, the evident purpose of the framers of the constitution and the people in adopting it was to abolish, in the administration of county and municipal government, the credit system, and establish the cash sys- tem by limiting the amount of tax which might be imposed by a county for county purposes, and by limiting the expenditures in any given year to the amount of revenue which such tax would bring into the treasury. We do not understand counsel for the appellant to dispute these propositions; but the claim is made and pressed with much vigor, that section 12 does not include debts like that for which the warrant in question was given. The line of argument is this: As the statute makes it the duty of the county clerk to provide suitable books and stationery for his office (R. S. 1879, sec. 623), a debt created for such a purpose is not one incurred or created by the county court, but is a debt created by law, and that such debts are not within the prohibition. Authorities are cited which give support to such a dis- tinction. Grant Co. v. Luke Co., 17 Or. 453; Barnard & Co. v. Knox Co., 37 Fed. Rep. 563, and Rollins v. Lake Co., 34 Fed. Rep. 845. The case last cited, it may be observed, was reversed by the supreme court of the United States. 130 U. S. 662. On the other hand the constitution of Colorado contains this pro- vision: "And the aggregate amount of indebtedness of any county for all purposes, exclusive of debts contracted before the adoption of this constitution, shall not at any time exceed twice the amount above limited, unless," etc. The supreme court of that state said, (vhen speaking of this clause: " The limitation being applicable to BARNAKD V. KNOX COUNTY. 399 d'l debts, irrespective of their form, it follows that in determining che amount of county indebtedness county warrants are to be taken into account and any warrant which increases the indebtedness over and beyond the limit fixed is in violation of the constitutional pro- vision, and void." The People ex rel. v. May^ 9 Col. 80-98. The circuit court of the United States in Rollins v. Lake Co., supra, when having under consideration the clause of the Colorado constitution before quoted, held that warrants, issued for fees of witnesses, jurors, constables and sheriff, were not within the pro- hibition, because issued in payment of compulsory obligations; and, hence, it was no defense in an action upon such warrants that at the time they were issued the limit fixed by the constitution had been reached. The supreme court of the United States when speaking upon this question in the same case said: " Neither can we assent to the prop- osition of the court below that there is, as to this case, a difference betw een indebtedness incurred by contracts of the county, and. that- form of debt denominated ' compulsory obligations. ' The compul-_ sion was imposed by the legislature of the state, even if it can be, said correctly that the compulsion was to incur debt; and the legislar tiire could no more impose it than the couut}^ could voluntarily assume it, as against the disaliility of a constitutional prohibition. Xor does tTie fact that the constitution provided for certain county officers, and authorized the legislature to fix their compensation and that of other officials, affect the question. ... In short we conclude that article 6 aforesaid is a limitation upon the power of the county to contract any and all indebtedness including all such as that sued upon in this action; and, therefore, under the stipulation already set forth, the county is entitled to judgment." Lake Co. v. Rollins^ 130 U. S. 662. A clause in the constitution of Illinois declares that " no county, city, etc., shall be allowed to become indebted in any manner, or for any purpose," beyond a stated amount. Yet the decisions of the supreme court of that state recognize no such distinction as that sought to be made in the case at bar. The result of the decisions of that court is, that it can make no difference whether the debts be created for necessary' current expenses or for something else. Prince V. Citij of Quincy, 105 111. 138; s. c, 105 111. 215. The supreme court of Iowa when speaking of the same clause in the constitution of that state says: " The language of this provision is very general and comprehensive. It includes indebtedness in- curred in any manner or for any purpose." City of Council Bluffs V. Stewart, 51 Iowa, 385. It is true the clauses in the constitutions of the states just named prohibit the incurring of indebtedness beyond a specifi^ed per cent, of the assessed value of the taxable property, while in our constitution the prohibition is asainst the mcurring of an indebtedness in excess of the revenue of the partic* 400 BARNARD V. KNOX COUNTY. ular vear. But we do not see that this difference affects the question in hand. The object of all these provisions is to fix a limit to county and municipal indebtedness. Our constitution, it will be seen, first limits the rate of taxation for county purposes to fifty cents on the one-hundred-dollar valuation in counties like the one in question. This rate may be increased by the assent of the qualified voters for the purpose of erecting public buildings, but it cannot be increased even by such assent for any other purpose. We have held that a county court cannot levy a tax in excess of the fifty cents for any purpose, except for the purpose of erecting public buildings, and for the purpose of paying indebtedness exist- ing at the date of the adoption of the constitution. Arnold v. Haw- kills, 95 Mo. 569; Black v. McGonigle, 103 Mo. 192. The maximum limit of the rate of taxation for county purposes being thus fixed, section 12, to repeat, declares: "No county, city . . . shall be allowed to become indebted in any manner or for an}' purpose to an amount exceeding in any year the income and revenue provided for such year." As to counties the only exception is, that with the assent of the voters the expenditures may be increased for the erec- tion of a courthouse or jail. The language just quoted is clear and explicit and construes itself; it is broad and comprehensive as to the character of the indebtedness. It includes indebtedness created in any manner or for any 'purpose. This strong and comprehensive language admits of no distinction between debts created by a county court and debts created by law. In a sense all county debts are created by law; for the counties pos- sess those powers and those only which are conferred upon them by the constitution and laws of the state. While it is the duty of the county court to care for paupers and insane persons and to build bridges and repair roads, still the county court is governed by the statute in the performance of these duties. Debts incurred for such purposes may be called debts created by law as well as debts incurred by the county clerk for books and stationery. Nor does it make any difference that the debt in question was created by the clerk instead of the county court. The clerk in the purchase of the books and stationery acted as a county officer; the debt incurred by him, if he did not exceed his authority, is just as much a county debt as one incurred by the county court. The law confers upon various county officers the power to create debts for designated purposes, but the debts are all county debts when charge- able to the county. The county clerk, county court and other county officers must take notice of these constitutional limitations, and exer- cise the powers conferred upon them in subordination to such restric- tions. To hold otherwise is to say the clerk and other officers may execute statutory powers in excess of constitutional restrictions, and thus make the statute laws override the constitution. BARNARD V. KNOX COUNTY. 401 It is, of course, a hardship to the plaintiff to declare this warrant worthless, but we cannot dispose of the question on any such surface view of the matter. The constitution seeks to protect the citizen and taxpayer, and their rights are not to be overlooked. It is the duty of persons dealing \fith counties and county otlicials, as well as of county olllcials themselves, to take notice of the limit prescribed by the constitution. 1 Dill. Munic. Corp. [4 Ed.] sec. 134a. Solicit- ing agents, contractors and others who deal with county officials must see to it that the limit of county indebtedness is not exceeded, and, if they fail to do this, they must suffer the consequences. Unless this is so there is an end to all effort to bring about an economical and honest administration of county affairs. If this scheme of county finances built up by the constitution is a mistake, or if it produces great hardships in some counties, the remedy is with the people and not with the courts. " What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require.". Cooley on Const. Lim. [5 Ed.] 67. The plaintiff insists that there is no substantial difference between this case and Potter v. Dour/las Co., 87 Mo. 240. In that case the plaintiff sued Douglas county for services performed by him as jailer of Greene county, in keeping, boarding, clothing and taking to court prisoners. The indebtedness was incurred under section 6090, Revised Statutes, 1879. The agreed statement showed " that, at the time the fee bill was presented to the county court, the revenue for said years was expended, and the same could not be paid without issuing warrants in excess of the income and revenue for said years." On this statement we held the plaintiff" could recover. It is to be observed that the agreed statement in that case did not show that the jevenues had been expended when the indebtedness was incurred. Vov aught that appears there may have been revenues unexpended and set apart to the proper fund when the indebtedness was con- iracted. Our opinion, however, is not placed on any such ground. It is placed upon grounds which would include the case in hand, and which are inconsistent with what has been said on the present occasion. There is, of course, a difference between the facts in that case and the facts in the present one, but the constitution takes no notice of such differences. That case is, therefore, overruled. Now the agreed statement in this case does not, in terms, say that the contingent fund set apart for 1885 had been exhausted when the books and stationery were purchased ; but it does show that the war- rant was issued at the date of the purchase, and that at that time the county court had issued warrants in excess of the total revenue for that year. This statement must be taken in connection with the petition which is framed upon the theory that the whole of the revenue bad been consumed, unless warrants issued for the support of paupers and for building bridges and repairing roads are to be excluded 402 DAVIS V. CITY OF DES MOINES. TVe think it sufficiently appears' that the contingent fund had been consumed when the debt sued for was incurred. Indeed, this propo- sition is not questioned in the briefs. The warrant was issued in violation of the constitution, and is void. Judgment affirmed. Barclay, J., absent; the other judges concur. DAVIS V. CITY OF DES MOINES. 18S7. 71 Towa, 500. Appeal from Polk Circuit Court. The petition sets forth that the defendant is already indebted to the full constitutional limit; that the plaintiff is the owner of certain land fronting on one of the streets of the city, and that the city, by its officers, entered into a contract with one McCauIey to construct a sewer in said street, and to pay him therefor by assessing the con- tract price thereof against the adjacent property; that the municipal authorities are about to make said assessment, and charge the same upon the lots, and proceed to collect the same of said owner. It is prayed that the said contract be cancelled and declared void, and the defendant be enjoined from in any manner attempting to enforce said contract. The defendant, by its answer, denies that it has con- tracted, or proposes to contract, an indebtedness for the construction of said sewer. There was a demurrer to the answer, which was over- ruled, and the plaintiff appeals. Henry S. Wilcox, for appellant. James H. Dietrick and Hugh Brennan, for appellee. EoTHROCK, J. The question to be determined is, did the contract in question create an indebtedness against the city? A copy of said contract is exhibited with the answer. So far as the said con- tract purports to create an obligation against the city, it is as fol- lows: " The said P. H. McCauley agrees and herebj^ undertakes to do and perform said work in accordance with the plans and specifica- tions, at the following rate or price, to-wit: one dollar and seventy- four cents per lineal foot or square j^ard, which price shall cover the cost of the entire work. The said cost is, under the law and ordi- nances of said city, to be assessed against the private property adja- cent to or fronting on the street upon which said improvement is made, and a part thereof, to-wit: in seven annual installments, as provided by the law and ordinances of the city, with six per cent interest. Said assessment is payable as follows: When such assess- ment is made, and any portion of the work completed and accepted by the city, certificates thereof shall be made out showing the amount levied against each piece of property, and the same shall be delivered to said P. H. McCauley, and the same shall be received by him in TUTTLE V. POLK. 403 full payment for said work or improvement for the payment of which "a special assessment is required by the law and ordinances of said city, and delivered to said P. H. McCauley or order. Said P. H. McCauley agrees to accept said certificates in full payment for any and all work performed by him under his contract, and to collect the same by an}- of the m.ethods provided by law, and at his own cost and expense; and it is expressly agreed, by and between the parties to this contract, that, upon the issuing of certificates to said P. H. McCauley for any and all work done under this contract, the same shall be received by him in full payment therefor, without recourse to the city of Des Moines, Iowa." It is provided by section 3, article 11, of the constitution, that " no county or other political or municipal corporation shall be allowed to becom.e indebted in any manner, for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state and county tax-lists previous to the incurring of said indebtedness." It seems to us that the contr act in q^ue^tjon does not create an i ndebtedness against the ci ty. There is no doubt that the city is" authorized by law to make special assessments for improvements of this character 'upoiT property adjacent to the improvements. Such are the plain provisions of our statute. See chapter 162, Laws 1878, and section 16, c. 168, Laws 1886. The contract involved in this case expressly provides that the certificates issued by the city shall be accepted by the contractor in full payment for his work, without recourse on the city. The city can never be held liable to any action for th e construction of the sewer. Its resources cannot be affected thereby. Its contract is fully and completely performed by ascer- taining the amount properly chargeable to the adjacent property, and the issuance of assessment certificates to the contractor. We think the demurrer to the answer was properly overruled. Affirmed.'^ EOBINSON, J., IN TLTTLE v. POLK. 1894. 92 Iowa, 433 ; pp. 437-8 ; pp. 441-2. Robinson, J. . . . The authority under which the city acted in entering into the agreement is found in chapter 168 of the Acts of the Twenty-first General Assembly, enacted in 1886. The city of Des Moines is within the provisions of that act. It authorizes con- 1 As to whether the city would be liable to the contractor if the city officers neglect to make the assessment (or if the city officers neglect to collect the assessment in cases where the duty of collection rests upon the city) ; see conflicting authorities cited in German- American Savings Bank v. City of Spokane, 1897, Supreme Court of Washing ton,. 49 Pacific Reporter, 542. 404 TUTTLE V. POLK. tracts for paving and curbing streets and constructing sewers in cities to which it applies, and provides for the issuing of bonds in payment. The cost of the improvement is to be assessed upon the property fronting or abutting upon it, and placed on the tax list of the county, and is payable at the office of the county treasurer. All money received from the assessments is to be appropriated to the payment of the interest and principal of the bonds, or certificates, if any are issued under section 16 of the act. The section is as fol- lows: " Section 16. If by reason of the prohibition contained in section 3, article 11 of the constitution of this state it shall at any time be unlawful for any such city to issue bonds as by this act provided, it shall be lawful for such citj^ to provide by ordinance for the issuance of certificates to contractors, who under contract with the city shall have constructed any such improvement, in payment therefor, each of which certificates shall state the amount or amounts of one or more of the assessments made against an owner or owners and lot or lots on account and for payment of the cost of any such improvement, and shall transfer to the contractor, and his assigns, all of the right and interest of such city to, in and with respect to every such assessment, and shall authorize such contractor and his assigns to receive, sue for, and collect, or have collected, every such assessment, embraced in any such certificate, by or through any of the methods provided by law for the collection of assessments for local improvements, including the provisions of this act" The cer- tificates in question were issued under the authority of that section and chapter 44 of the Acts of the Twenty-second General Assembly. The last named act is only designed to cure defects, and provide for the reassessment and relevy of special taxes in certain cases, and does not otherwise add to the power, if any, conferred upon the city by section 16, quoted, to create indebtedness. There is nothing iji^ that section which makes the city in any manner liable for the pay.- ment of the certificates. It merely authorizes the transfer to the con- tractor or his assignee of all the right and interest of the city in the assessment, in payment of the improvements made. The plain legis- lative intent was to provide a means for paying for improvements contemplated by the act without the incurring of any liability on the part of the city, acting under the provisions of section 16. It is said that the provision of the constitution in question was intended to protect the taxpayer from the reckless and corrupt acts of public officers, that the municipal corporations and the citizens thereof are one and the same, and that debts contracted by the cor- poration are debts of the citizens and taxpayers. There is a sense in which that is true, but it is not recognized in the constitution. That does not limit the amount which may be levied, in the form of taxes and special assessments, upon the property within the state. It_ recognizes the county and other political and municip al corpora tiohs TtJTTLE V. POLK. ■ 405 as beinsr distinct entities. Although none can incur an indebtedness ^o ill excess of five per centum of the value of the taxable property within its limits, yet the same territory, and, therefore, the same property, may be included within the limits of different corporations, as those of a county, city, or town, and school district, and be sub- ject to taxation for the debt of each. Strictly speaking, such a debt is not a lien upon any taxable property, nor a claim against any taxpayer, until a levy or an assessment has been made. Some prop- erty may be within the corporate limits when a debt is created, and without them when the tax for its payment is assessed. So the property owner, whose influence helps to create the debt, may have no property taxable within the corporate limits when the debt becomes due. It seems clear that in such cases the debt of the corpo- ration is not primarily the debt of the owners of property within its limits, and the case is not different, in a legal sense, when an assess- ment is made tor the payment of the debt at the time it is created, although in that case each property owner who has property subject to assessment may be liable for a definite portion of the debt. In this case the city attempted to enter into a contract for paving, for which a fixed compensation was to be paid. The contract did not require any payment to be made by the city, excepting in certificates, but provided that the agreed price should be collected by means of assessments, yhe paving of the streets is one of the purposes for which the city exists, and for~wWcH it_mi£ht have assumed liability, haxTTts debt not reached the constitutional limit; but it guarded against the assuming of any liability, and placed the burden of the iin})iovement upon the owners of property which fronted upon it. That right was given by a statute which was especially designed to authorize the making of such improvements without cost to the city, and we find nothing to prevent giving it full effect. "We do not think there is any sufficient reason for holding that the city is in any respect liable for the amounts represented by the certificates, nor that the obligation of the taxpayer is the debt of the city. In Davis V. City of Des Moines^ 71 Iowa, 500, 32 N. W. Rep. 470, it appeared that a contract for the construction of a sewer was entered into, similar to the one attempted to be made in this case, and under the same statute. It was held that an assessment certificate issued pur- suant to the contract to pay for the improvement did not create an indebtedness against the city. We conclude that section 16 of the Act of the Twenty-first General Assembly in question is not uncon- stitutional, as attempting to provide for the creation of a debt in excess of the amount authorized by the constitution. 406 ADDYSTON PIPE The fundamental and important question in the case is with respect to the validity of the ordinance expressing the consent of the city, through its municipal authorities, for the use of the street in the manner described and specified therein. There can be no doubt that the board of estimate and apportionment possessed all the powers concerning the use of the streets by the public and by private parties that were formerly possessed by the board of aldermen. Wilcox v. McClellan, 185 N. Y. 9, 17. There can be no doubt that municipal authorities having the care and control of the streets in a city may authorize their temporary use by private parties for private purposes to a limited ex- tent. The precise limits beyond which that power cannot be exercised have not been very specifically or accurately defined and perhaps can- nat be. The governing body in a city may permit private parties to deposit building materials in the streets, to construct and use coal holes, cellarways, areas, vaults under the sidewalks, awnings above and the like. But all these and all similar uses of the public streets for private use are either expressly authorized by statute or sanctioned by the courts as being exceptions to the general rule, borne of neces- sity and justified by public convenience and custom. The right to such use is given to the general public and enjoyed by all citizens alike. In the present case the privilege has been granted to private parties and is special and peculiar. Callanan v. Gilman, 107 N. Y. 360; Iloe^j v. Gilroy, 129 N. Y. 132; Jorgensen v. Squires, 144 N. Y. 280. These cases, however, affect only in a very slight way the general rule that the primary purpose of streets and highways is the use of the public for traveling and transportation, and that any encroachment thereupon which interferes with such use is a public nuisance. There can be no doubt that an abutting owner in a city has the right of free access to and from his property in the usual way. He may use for that purpose such means of conveyance for the transportation and de- livery of goods and merchandise as are usual and customary, but the right of ingress and egress with railroad cars running upon railroad tracks has not yet, I think, been sanctioned by custom or by law. The claim of a right in that regard is far in advance of any use of the public streets that has heretofore been recognized. It may be argued that if the abutting owner may use carriages, wagons, trucks and even motor cars for the purpose of free access and the transaction of his business, why not permit him to use railroad cars upon a railroad track? Such an argument is misleading, since if carried to its logical conclusion the result would be that the governing body in a city would have the power to surrender the use of the streets to private parties for exclusively private purposes. The courts must draw the line at some point beyond which private interest and convenience must yield to the general pub- lic good. The general current of authorities on the question concerning 430 HATFIELD V. STRAUS. the use of public streets iu cities indicates quite clearly that the line has been extended and the domain of discretionary power very much ex- panded by the ordinance adopted in this case. If we are prepared to hold that the defendants are empowered to adopt and carry out the res- olution in question, then, as was suggested in the learned opinion of the court below, the same claim of right must be sanctioned when like privileges are granted to all merchants in the city who are similarly situated. In this view the result of our decision in this case must be important and far-reaching to the whole community. We are not con- cerned with the question whether the exercise of the power embodied in the resolution was necessary or reasonable. The defendants do not attempt to justify the grant upon any such ground, and these consider- ations are not pertinent to the questions certified to us by the learned court below, and which confer upon this court the only jurisdiction it has over the case. Keeping in view the fact that the questions certified to this court call simply for the construction of a specified section of the city charter, it is not necessary to call attention to the numerous authorities in this State that deal with the general question, concerning the power of the city authorities having control of the streets, to authorize obstructions to be placed therein for the benefit or convenience of private parties. It is quite sufficient to observe that the authorities already cited in sup- port of the right of the plaintiffs to maintain this action also deal with the question of power in the local government to authorize interfei'ence with a street by individuals or corporations for their own use and benefit. The general question as to the power of local authorities to permit such obstructions has been dealt with and discussed in the courts of other states in a very broad and comprehensive manner. In those cases the court was not limited, as this court is, to the mere question concerning the meaning and construction of a section of the city charter or other statute. On the contrary, the discussions in these courts took a very wide range, and the results announced denote the general trend of judicial authority against the power of municipal authorities to permit obstructions of the character involved in this case to be placed in the public streets of cities. Glaessner v. Anheuser Busch B. Assn., 100 Mo. 508 ; Gustafson v. Hamm, 56 Minn. 334; Heath v. Des Moines & S. L. By. Co., 61 la. 11 ; State v. Trenton, 36 N. J. Law, 79; Mikesell v. Durkee, 34 Kan. 509 ; Mayor v. Harris, 73 Ga. 428. A single extract from one of these cases will suflficiently disclose the views of the court in all of them : " Everything which is fairly within the idea of regulating streets, with a view to their use as streets, may be done by corporate legislation. In measuring the extent of the power, the object and purpose for which it was given must always be regarded as the test. Is one of those objects or purposes subserved by permitting one individual to enjoy a use of the highway which is de- nied to all others ? I think not. If such power is conceded, its exer- cise is limited only by the discretion of the common council, who must HATFIELD V. STRAUS. 431 be the sole judges of the extent to which obstructions may be placed in the streets. If they can license one to build a railroad across the highway for his own exclusive benefit, of which the public can have no user or advantage of convenience, it is difficult to perceive why they cannot empower another to place therein a structure which would more effectually impede the public passage and maintain it there during their pleasure. How considerable must the obstruction to the way become, before the judgment of the common council can be controverted, and the judicial arm interpose? A grant to every one on the street of a like nature with that now resisted would render the highway well nigh impassable. The right to license one necessarily implies authority to license all, and thus municipal corporations under the general power to regulate streets become the source from which franchises to favored individuals in the public ways derive their existence. Streets and high- ways are intended for the common and equal use of all citizens, to which e nd they must be regulated. An appropriation of them to pri- vate in dividual use from which the public derive no convenience, benefit or accommodation is not a regulation but a perversion of them from_ their la wful purposes and cannot be regarded as an execution of the trus t imposed in the city authorities. . . . The power of the common council to permit owners of stores or other buildings to erect awnings over streets, or to leave boxes on the sidewalks, under certain regulations rest upon a different principle and has been sanctioned by usage as the exercise of a right in the owner of the fee, not inconsistent with the public right of passage. State v. Trenton, supra. The order appealed from should be affirmed, with costs, and the first question answered in the negative and the second question answered in the affirmative. Chase, J. (dissenting) . . . The general rule that streets and highways are solely for passage by the public is subject to some exceptions born of necessity and public convenience. The primary purpose of streets and highways is for use. If a physical or other barrier should be erected on ail lot lines adjoining streets and highways, such streets and highways would become wholly useless. There is no prohibition against an owner of lands abutting a highway from passing to and from the same. Such right of passage is not confined to the owner of the abut- ting lands, but extends to all persons lawfully desiring to pass to and from such abutting lands and also to the transportation of all goods, wares and merchandise in any way lawfully used in connection therewith. An owner of a building abutting on a street may not only freely pass to and from the same but incident to his ownership he may use the street and sidewalk in front of his property as a place to load and unload his goods and for all usual and necessary purposes of his business although it may occasion a temporary obstruction, provided he does not interfere unreasonably with the public right. Jorgensen v. Squires, 144 N. Y. 280; WeUhx. Wilson, 101 N. Y. 254 ; Calkmanv. Oilman, 107 N. Y. 360. It is competent for the legislature to authorize abutting owners to 432 HATFIELD V. STRAUS. temporarily deposit building material iu the streets, Callanan v. Gilman, supra; also to authorize abutting owners to build within the street lines underground vaults, Deshong v. City o/Neiv York, 176 N, Y. 475, ai"ea ways, Devine v. Natio?ial Wall Paper Company, 95 App. Div. 194; affd., 182 N. Y. 565, stepping stones, Wolff y. District of Columbia, 196 U. S. 152; Robert v. Powell, 168 N. Y. 411, and many other things which tend to the convenient and beneficial enjoyment of abutting property. Jorgensen v. Squires, supra. In the Robert v. Powell case this court say : " There are some objects which may be placed in or exist iu a public street such as water hy- drants, hitching posts, telegraph poles, awning posts or stepping stones such as tlie one described in this case, which cannot be held to con- stitute a nuisance. They are in some respects incidental to the proper use of the street as a public highway. The hitching post for instance, in front of a private residence is intended not only for the convenience of the private individual but for the safety of the public as well, since it is intended to guard against accidents resulting from runaway teams or horses. It is quite conceivable that a shade tree located within the boundaries of the street or highway may cause an accident or injury to a private individual using the street. But it does not follow that it constitutes a public nuisance in the highway. . . . While it is said that these cases involved only the question of liability on the part of a municipality for negligence, they also decided that the existence of objects of this character in the streets is lawful." This court in Jorgensen v. Squires, siipra, say : " While such uses may restrict somewhat the free and unembarrassed use of the streets for pedestrians, the general interests are subserved by making avail- able to the greatest extent valuable property, increasing business facilities, giving encouragement to improvements and adding to taxable values." In the use of streets, sidewalks are built for pedestrians and spur walks are commonly constructed therefrom to residences and other property. Spur roads are run across sidewalks to stables and busi- ness property. If the express car to be used in transporting the defendants' goods, wares and merchandise should be constructed with sufficient power as a motor car, I assume there would be no question as to the legal right of the defendants to run the car over the sidewalk on their driveway into their department store as trucks with teams are now driven therein. • ••«•••• For the purpose of confining abutting owners to a reasonable use of the public streets it is no more necessary to require that express cars be loaded and unloaded in the streets and the highways than it is that individual consumers of gas or water be required to take the same in some way from the distributing pipes in the public streets. A reason- able use of all public service corporations would seem to re(]uire that abutting owners of property be allowed to make such reasonable con- TEXAKKANA GAS & ELECTRIC CO. V. TEXARKANA. 433 nection with the public service pipes, conduits or tracks as will tend to public utility. The defendants' goods, wares and merchandise must be transported from place to place, and I cannot say that running one car over a spur track from the street surface railroad would be more incon- venient to the public than running heavy motor cars or trucks drawn by horses at irregular intervals over the defendants' driveway. If such a use of the street tends to public benefit it cannot be said to be an unreasonable use thereof. No actual permanent taking of a portion of the street for private purposes is proposed. The board of estimate and apportionment in their discretion may have found that the use of such spur track within the hours mentioned would relieve a congested street and generally tend to the public good. Where the power to grant street privileges or franchises is conferred upon a municipality the exercise of the power is discretionary with the municipality and its action is not as a rule subject to control by the courts. Edward T. Baktlett, J., delivered an opinion concurring with O'Brien, J. ; Vann and Hiscock, JJ., also concurred. Cullen, C. J., and Haight, J., concurred with Chase, J. TEXARKANA GAS & ELECTRIC CO. v. TEXARKANA. 1909. 123 S. W. Rep. 213. Hodges, J. The appellant is a private corporation, is now and has been for many years engaged in the business of operating an electric street car system and an electric light plant in the city of Texarkana, Tex. , for the purpose of furnishing to the residents of said city street car service and electric lights. In carrying on its business it has erected and uses poles and wires placed and strung in the manner usually adopted in such cases. In the early part of 1907, the city of Texarkana procured from the Legislature a special charter. Prior to that time and since 1874 it had existed as a municipality incorporated under the general laws of the state. On February 10, 1908, the city adopted an ordinance entitled, " An ordinance to regulate the placing of poles and stringing of wires thereon along, over and through the streets and alleys, and other public highways of the city of Texarkana, Texas ; providing for a license and a license fee upon every such pole, and providing for the collection of the same." It is then ordained, first, "That any such person, firm, corporation or association owning, operating or conducting any of the following public service, business or engagements to or with the general public or offering to do so for hire within the corporate limits of the said city or partially within and partially without the corporate limits of the said city, viz., telegraph business, telephone business, or telegraph and telephone business, or electric light or electric street railway, or either or both, or any other 434 TEXAEKANA GAS & ELECTRIC CO. V. TEXARKANA. business where electric wires are used and suspended on poles over, along or across any of the public streets, alleys or highways, within the said city, shall be and each is hereby required to pay to the said city for the use and benefit of the street and bridge fund a license fee of fifty (50c.) cents for each and every pole that is or may be owned by any such person, firm, corporation or association and occupying any street, alley or public highway or standing and erected thereon, and upon every said pole an annual license and license fee is here levied and assessed for the year 1908 and for each succeeding year thereafter." Then follow pro- visions intended as regulations governing the location of the poles upon the streets and alleys, their size and position, distance and height, and other details generally imposed by cities, and which it is not necessary to mention here more fully. The second subdivision is as follows : " That each and every person, firm, corporation or association, using wires and poles in the streets, alleys or highways, as aforesaid, shall annually before the 20th day of February of each year, file with the city council a certificate which shall be duly sworn to, correctly stating the number of poles owned by him or them within the said city and it shall thereupon be the duty of the city council to charge the city tax collector with the sum of money equal to fifty (50c) cents for each and every one of said poles and a violation of this section shall subject any such person, firm, corporation or association of persons conducting any of the public utilities hereinbefore stated and so violating it to the fine of twenty-five ($25.00) dollars and a penalty of fifteen ($15.00) dollars for each and every day that such violation shall exist. And provided further that any failure by any person, firm, corporation or association to file said sworn statement setting forth the number of poles, or if the city council shall be doubtful of said affidavit correctly stating the number of poles, it may nevertheless have an inventory of the said poles made upon its own behalf and account and such inventories to be made by the city engineer who shall make the sworn report to the city council in writing when requested, and such report of said engi- neer shall be conclusive as to the facts therein recited, and the entries made upon the books of the tax collector by him and the charges against such tax collector shall be based upon the report of said city engineer when the report shall have been made by him. And each and every person, firm, corporation or association so using wires and poles as aforesaid that are now or may hereafter be placed in and along the said streets or alleys of the said city, shall pay to the city of Texar- kana, Texas, to become a part of the street and bridge fund, annually, on or before the lOth day of March of each and every year, as a license and as a license fee, the sum of fifty (50c) cents for each and every pole so erected, maintained or used on said streets, alleys or highways within the said city by any such person, firm, corporation or association engaged in any of the foregoing mentioned public service and the same shall be paid to the tax collector of the said city by the lOth day of March, of each year, and upon the failure of any such person, firm. TEXAEKANA GAS & ELECTRIC CO. V. TEXAKKANA. 435 corporation or association to make said payment annually on or before the 10th day of March, it shall be and is hereby made tiie duty of the city attorney to take cognizance of said failure and to proceed at once to the collection of the same and to the enforcement of this ordinance." On the 20th of February, 1908, the general manager of the appellant company, in compliance with the provisions of the foregoing ordinance requiring a report of the number of poles owned and used within the city limits, filed a written report showing that appellant at that time owned and used 787 poles within the limits of the city, in the conduct of its business. This report, however, was made under protest, and, as stated therein, for the purpose of avoiding the penalties imposed by reason of the failure to make it. The appellant refused to pay the tax of 50 cents per pole, amounting to $391.50, which had been charged against it as a license fee under the provisions of the ordinance before mentioned, and this suit was instituted by the city to enforce its col- lection. As a defense the appellant alleged and proved upon the trial that some years before the granting of the special charter to the city of Texarkana, and while the latter was existing as a municipal corpora- tion under the general laws of the state, it obtained from the city a franchise, or right, which authorized it to place and set its poles on the streets and alleys of the city, and that by virtue of that authority it had placed and set its poles on the streets and alleys, and was using and maintaining them in that position at the time the ordinance above mentioned was passed, and that the appellant was then and is now act- ing: bv virtue of the original franchise referred to. It was also shown that in the grant of the franchise claimed the terms required the appel- lant to furnish free of charge electric lights for use in the city hall, fire- house, and jail, and to furnish electric street lights at certain prices agreed on, and that no other license fees were therein exacted. It was further shown that the appellant has at all times complied with the terms and conditions imposed in the grant of the aforesaid franchise, and was in all things complying with the regulations made for its government in the exercise of that right. The case was tried before the court with- out a jury, and a judgment rendered in favor of appellee for the full sum sued for. The correctness of that judgment is assailed upon tlie ground that the city had no authority to levy and collect a license fee of fifty cents per pole on the poles owned and used by the appellant along the streets and alleys of the city ; that having theretofore granted to appellant the right to use and occupy the streets and alleys with its poles and wires for the purposes for which they were then being used, the city had no legal right thereafter to impose an additional burden or tax upon appellant for such use. Counsel for the city do not contend that this ordinance should be sustained as a valid exercise of the power of the city to levy and collect taxes either upon property or occupations. They do not deny that as a measure for raising revenue it would be without authority. But they justify the provisions of the ordinance objected to upon the ground 436 TEXARKANA GAS & ELECTRIC CO. V. TEXARKANA. that it is a valid and proper exercise of the police power of the city, and refer to other portions of the ordinance which prescribe regulations governing the placing and, maintaining of poles and wires, designating the size and quality of the poles that shall be used, and various other details intended to prevent any unnecessary^ obstruction of the streets and alleys. It must be conceded that the provisions of this ordinance, including the levy of the license fee, fall within the usual police powers of a municipal corporation having the right to regulate and control the use and occupancy of its highways by persons engaged in conducting public utilities, such as that of the appellant, for private gain. But it does not follow from this that the exercise of some part of this police power may not under certain conditions be resisted upon the ground that it is an attempt to violate a vested right. The state, as the trustee for its citizens, is the ultimate holder and owner of a paramount au- thority to govern and regulate the use and occupancy, of the public highways of the country. Municipal corporations succeed to this au- thority by virtue of the grants contained in their charters. 3 Abbott, Municipal Corp. § 913. When thus empowered, cities have the au- thority to grant to private parties the privilege of permanently occupy- ing and using certain portions of their highways for the purpose of carrying on a business or enterprise furnishing some public service. In granting the right, or franchise as it is called, the city can impose conditions or charge a fee for the privilege given, which the applicant can accept or reject at his pleasure ; but, having accepted it, he takes the franchise subject to the conditions imposed, and must pay the con- sideration exacted. 3 Abbott, Municipal Corp. § 908. For without the consent of the municipality no one has any right to permanently use or occupy any portion of the public highways to the exclusion of others'. The privilege is granted presumptively for the benefit of the public in securing the use of some agency of general utility ; and when a consideration is received in return, it inures to the benefit of the com- munity by going into the public treasury. It can therefore be readily seen that such transactions have many of the elements of a contract. The concession cannot be regarded otherwise than as a valuable prop- erty right the revocation of which after acceptance might entail serious damage. If the original franchise relied upon in this case was one which the city of Texarkana had the authority in the first instance to grant, one which public policy did not prohibit, it was a concession en- titled to the protection generally accorded to vested rights secured by contracts. New York, Lake Erie & Western R. R. Co. v. Common- wealth of Pennsylvania, 153 U. S. 628, 14 Sup. Ct. 952, 38 L. Ed. 846; City o/St. L. V. W. U. Tel. Co., 148 U. S. 93, 13 Sup. Ct, 485, 37 L. Ed. 380; Louisville Trust Co. v. City of Cin., 76 Fed. 296, 22 C. C. A. 334; 3 Abbott, Municipal Corp. §297; Mayor v. Houston Ry. Co., 83 Tex. 555, 19 S. W. 127, 49 Am. St. Rep. 679; Jumbo Cattle Co. V. Bacon, 79 Tex. 12, 14 S. W. 840; City of Detroit v. De- troit R. Co., 184 U. S. 378, 22 Sup. Ct. 410, 46 L. Ed. 607; City Ry. TEXAKKAXA GAS & ELECTKIC CO. V. TEXARKANA. 437 Co. V. Citizens' Sf. Ry. Co., 166 U. S. 558, 17 Sup. Ct. 653, 41 L. Ed. 1114; 3 Abbott, Municipal Corp. §§ 896, 919, and cases cited. There seems to be no question made as to the existence of that authority on the part of the city at the time it granted the franchise here claimed. To refuse protection to such concessions as this would expose valuable privileges purchased for a consideration, and extensive investments in property, to the arbitrary control of municipal governments, and thus permit the practical confiscation of valuable rights. It is no answer to the proposition stated to say that a city cannot part with its police power over its highways, for within certain limitations this can be done, and, when it is done, the dominion cannot be arbitrarily resumed when private rights have intervened and there has been no departure from the conditions imposed in making the concession, or those neces- sarily implied by law. Broadly stated, the police power of the city is the power to govern, exercised either by restriction or compulsion, in promoting the general good of the people. Freund, Police Powers, pp. 2, 3. While it is true that the city cannot surrender that portion of its police power the exercise of which is essential to the promotion of the general welfare in protecting personal and property rights, it can make concessions by which the general welfare is promoted in securing the services of some public utility, and which does not involve the sur- render of its necessary governmental functions. The fact that the city cannot divest itself of the power to remove an unlawful obstruction from its highways does not prove that it may not grant to others the right to permanently use portions of those highways for a public pur- pose when such use does not amount to a nuisance. When the city of Texarkana granted the franchise to the appellant authorizing it, for the consideration named, to use and occupy the streets and alleys for carrying on its business, it did not surrender any governmental func- tion or divest itself of any power necessary to protect its citizens against any unlawful invasion of their rights. It merely granted an easement upon the assumption that the service thereby secured would operate to the public benefit, and exhausted its power to demand a further consideration from appellant for the privilege conferred till the expiration of the grant. The terms upon which the right was granted fixed only the contractual relations of the parties; and the easement — that which the city could grant — became vested. If the city can at this time demand and collect from the appellant a further license fee as a rental or charge for the use of the streets, it puts the appellant in the attitude of being compelled to continue its use of the franchise upon terms which it might not have accepted in the beginning, or of surren- dering its right and losing valuable improvements made upon the faith of the original grant. To permit the exercise of such authority would sanction the enactment of a measure violative of contractual obliga- tions. None of the authorities cited by appellee support its contention further than to hold that the levy and collection of a license fee for the privilege of enjoying special rights upon the streets is an exercise of 438 SHERBURNE V. PORTSMOUTH. the police power. But none of them go so far as to say that this bur- den naay be imposed upon one a second time for the same franchise after a previous grant. We do not hold that the ordinance in question is in- valid, but that those provisions which authorize the levy and collection of the license fee cannot be enforced against the appellant company, for the reason that the appellee had previously granted the^ranchise under which it was occupying the streets of the city. The judgment of the county court is reversed, and judgment here rendered for the appellant. All costs both of this court and of the court below are adjudged against the appellee. \ \7-v SHERBURNE v. PORTSMOUTH. 1904. 72 N. II. 539. Bill in equity, to restrain the defendant city from building a base- ball park at the Plains, a public common containing about eleven acres, which was given to the city in 1716 for the drawing of a militia for the town and province and has been used since for that purpose and by the public generally for a playground ; also to restrain the city council from voting to fence the Plains " for the purpose of amusement and the better protection of city property." The bill alleges that the city councils intend, under this vote, to enclose the greater part of the Plains with a high board fence and give the control of the premises to certain individuals who will use them for a baseball park and athletic field, and will exclude all who do not pay an admission fee. The plaintiffs are taxpayers in Portsmouth and own property adjoining the Plains, The questions of law arising upon the defendants' demurrer were transferred from the October term, 1903, of the Superior Court, by Pike, J. Young, J.^ . . . The Plains being a public common, the city councils have power to regulate its use. P. S., c. 50, § 10, cl. XIV. The only limitations upon their right to determine the uses to which it may be devoted are that they must be public, intended to promote the object for which it was given, and that they do not constitute an un- reasonable use of the land. They may devote the Plains to any uses within these limits that seem to them to be wise and intended to pro- mote the best interests of the public. They may permit an individual or an association to occupy the whole or a part of the Plains for the purpose of furnishing the public with recreation. As an incident of their right to permit an individual to give exhibitions at the Plains, they may permit him to erect the structures necessary to carry on the business, if that would be a reasonable use of the premises. But if, 1 So much of the opinion as discusses tlie power of the court to restrain city councils by injunction is omitted. — Ed SHERBURNE V. PORTSMOUTH. 439 considering its situation and surroundings, using the Plains for a baseball ground would constitute an unreasonable interference with the rights of the adjoining proprietors, or if the erection of structures incident to such use would constitute an unreasonable interference with the right of the public to use the premises, the city councils cannot permit any one to use the Plains for that purpose ; for it would be permitting him to maintain a nuisance, and the city no more than an individual can authorize the maintenance of a nuisance. If the city councils may permit an individual to use the Plains for a baseball park, they can only give him the exclusive control of the premises for a reasonable time ; for the public cannot be excluded from the premises for an unreasonable time. AVhat would be a reasonable time, whether maintaining a baseball park at the Plains would be a reasonable use of the premises, and whether the erection of the structures incident to such use would be an unreasonable interference with the right of the public to use the premises, are all questions of fact. Ladd v. Brick Co., 68 N. H. 185. Even if the city councils may permit an individual to build a base- ball park at the Plains, they cannot build one with the city's money ; for they can use that only for the purposes named in section 4, chapter 40, Public Statutes, or for the purposes for which money may be raised by taxation. Goce v. Epjniig, 41 N. H. 539 ; Merrill v. Plain- field, 45 N. H. 126. This does not authorize cities to build baseball parks. Neither can they build one under the name of fencing the Plains ; for it is axiomatic that they may not do by indirection that which they could not do in a direct proceeding. Although they may use public funds to build such a fence as they consider necessary to protect the property or to make it more attractive, they cannot use the money of the city to build such a fence as would be necessary to make the Plains available for exhibition purposes, any more than they could use it to build a grand-stand or any other structures which constitute the equipment of a baseball park ; for such a fence would neither in- crease the attractiveness of the property nor be necessary for its protection. The fact that the plaintiffs' property adjoins the Plains will not prevent the city councils from making any reasonable use of the premises which they think will be for the public good. The plaintiffs have no right in the Plains not common to every taxpayer in Ports- mouth, except that of preventing the city from making an unreason- able use of the premises ; for it does not appear that they derived their title from the city after the Plains had been dedicated to public uses, nor that its dedication and the sale of the lots that adjoin it were parts of the same transaction. Notwithstanding the court has jurisdiction to enjoin the city councils when they are acting in their administrative capacity if the proposed action is illegal, they cannot be enjoined from passing the resolution to fence the Plains, for the resolution itself is legal ; it only authorizes 440 STEOCK V. EAST OEANGE. the building of such a fence as is necessary to protect the property and to make it more attractive. But the city councils may be enjoined from taking any action under this resolution toward building a base- ball park and from permitting any person to build one at the Plains, if that would be an unreasonable use of the premises. Demurrer' ooerrvled. Parsons, C. J., and Walker and Bixgham, JJ., concurred: Chase, J., concurred in the result solely on the ground that the pro- posed action of the city councils will convert a public common or square into a private park, — a change that they have not power to make, — and that an appropriation of the city's money for such pur- pose would be unauthorized and illegal, and may be enjoined at the suit of taxpayers. STROCK V. EAST ORANGE. 1910. 77 Atl. Rep. 1051. Parker, J.^ In Strock v. East Orange, 77 N. J. Law, 382, 72 Atl. 34, we set aside a resolution of the playground commissioners of East Orange granting a permit for the use of the local playground, for the reason that section 3 of the playground act as amended in 1908 (P. L. p. 165) established an illusory classification of playgrounds by acreage ; and also because it permitted a use of municipal property that was tantamount to giving it in aid of individuals or associations. Subse- quent to this decision the Legislature passed a supplement to the play- ground act in 1909 (P. L. p. 76) apparently designed to cure these defects, and which enacts as follows: "The board of playground com- missioners created or constituted in any city of this state, in order to provide the funds, in whole or in part, necessary to improve, maintain and police the playground or recreation places under its control, shall have the power and authority to arrange and provide for the giving of outdoor exhibitions, concerts, games and contests, and the power and authority to use and employ the said playgrounds or recreation places for the purpose of giving thereon outdoor exhibitions, concerts and contests, and said board shall have the power and authority to charge and collect a reasonable admission fee for each person entering such playground or recreation place, during the time or times when the same is being used or employed for such purpose ; provided however, that the said board shall not use or employ any such playground or recrea- tion place for such purpose for a gieater period than eight hours in any week, nor on more than two days in any one week, and when any such playground or recreation place is used for such purpose no admis- sion fee shall be charged or collected from children under twelve years 1 Part of tlie opinion is omitted. — Ed. STROCK V. EAST ORANGE. 441 of age." Tu pursuance of this supplement, the playground commis- sioners in February, 1910, passed the following resolution, which is now before us on certiorari: " Resolved, that the board of playground commissioners of the city of East Orange, does hereby determine it shall and will, under the authority of the act of li09, for the purpose of providing funds for the maintenance, care and policing of the play- ground, provide for the playing of baseball games at the East Orange Oval on the afternoons of the first and third Saturdays of June, July, August and Se[)tember of this year, at which games an admission fee of twenty-five cents shall be charged to all persons over the age of twelve years. Be it further resolved, that the secretary of this board be and he is hereby directed to arrange for such games with suitable teams of ball players upon terms most advantageous to the city of East Orange, and not exceeding in any case payment of more than forty per cent, of the net receipts to the baseball teams which are to play any of said games. Provided, that each and every proposition for the play- ing of such games shall before it becomes binding be submitted to and approved by this board. Resolved, that it is the sense of this board that permission be granted to the State Y. M. C. A. to hold an athletic meet and baseball game at the East Orange Oval, Saturday, June 11, 1910, upon the following terms; an admission fee of twenty-five cents be charged to all persons over the age of twelve years ; the State Y. M. C. A. to pay all the expense of advertising and all other inci- dental expenses, and the State Y. M. C, A. to receive forty per cent, of the net receipts." The question now submitted is whether the supplement of 1909 and the resolution of 1910 passed thereunder are invalid for the reasons given in the former opinion of this court re- specting the other resolutions, or for au}- other reason. It will be observed that the acreage clause is eliminated from the statute of 1909, and therefore that point is out of the case ; the statute applying to all playgrounds irrespective of area. It should be noted that b}^ the act of 1909 the playgrounds cannot be used in any one week on more than two days, nor for a total period of more than eight hours. This seems to dispose of our criticism that by the act of 1908 the commissioners were in effect empowered to permit private organizations to monopolize the ground for the entire season. The act of 1909 further differs from that of 1908 in resting the authority to use the playground for exhibitions, etc., on the theory of raising funds to provide for the improvement, maintenance, and polic- ing of the playgrounds, and in contemplating the collection for that purpose by the commissioners of a reasonable admission fee; whereas, in the amendment of 1908, nothing is said about revenue or the collec- tion of admission fees, but the board was left free to give the use of the playgrounds without compensation and thus enable the licensee for the time being to make money out of them. Another difference worthy of note, although perhaps not so impor- 442 STROCK V. EAST ORANGE. tant, is that instead of granting permits to organizations or individ- uals, as contemplated by the act of 1908, the new statute speaks of " arranging and providing for the giving of exhibitions," etc. The difference in the scheme seems to be plain. Instead of undertaking to endow the playground commission with power to give away the use of public property for nothing, and for indefinite periods by successive permits, thereby depriving the public of any opportunity of using the playground except on payment of an admission fee, and then only for the purpose of witnessing an exhibition, the Legislature has formu- lated a plan for the partial and restricted use of the playgrounds for exhibitions under the direct auspices of the commissioners, and with the requirement that the net receipts shall be used in payment of expenses for policing, maintenance, and improvement. We are asked to declare this act unconstitutional on the ground pre- viously urged as affecting the act of 1908, viz., that it authorizes the giving away of public property for private benefit ; but an act of the Legislature should not be declared unconstitutional unless it is clearly so, and any reasonable construction of the act that will save it sliould be adopted. Such a construction we think is available in the present case. We think that the giving of occasional athletic exhibi- tions is not inconsistent with the idea of a playground, but entirely germane to it. The playground, after all, is nothing but a modified park, a place for public resort and recreation, and considerable latitude is allowed to municipal bodies in charge of parks in the matter of fur- nishing or arranging for special facilities to certain portions of the public, in consideration of a special charge for the same. Park con- cessions for restaurants, boats to hire, donkey rides, rolling chairs, and so on, are familiar to every one; and the payment of a special charge for each of them is a matter of course. The practice of letting out concessions on public grounds for revenue purposes is expressly recognized by statute in the case of seashore cities. P. L. 1900, p. 285 ; P. L. 1904, p. 199. See 28 Cyc. 938. So, also, the authorities may even exclude the general public for a time and restrict the use of the park for that i^eriod to a limited portion of the public, so long as the length of time is not unreasonable. 28 Cyc. 937. In Sherburne v. Fortsnioufh, 72 N. H. 539, 58 Atl. 38, a New Hampshire case, the use of a common for a baseball ground was under discussion, and the court was of opinion that the test of legality was whether the use was public, in accordance with the dedication, and not an unreasonable use, especially as to time. We think this view is a sound one, and that it may safely be adopted for the purposes of the present case. The question of dedication, as will appear presently, does not arise in this case. That the proposed use is public we think satisfactorily appears. While not appropriate to the entire public, it is adapted for a considerable portion of the public and intended to furnish that portion, for a limited period, with legitimate recreation. It is quite as public in character as donkey rides for children and FOKT WAYNE V. LAKE SHOKE & MICHIGAN SOUTHERN RY. 443 restaurants for the haugry in a park. The period of time, also, is strictly limited to eight hours in a week, which the Legislature by so enacting has declared to be reasonable, and which manifestly is reasonable. But it is claimed that the provision for charging entrance fees is for the purpose of raising revenue, and consequently an exercise of the power of taxation, and thus creates a double taxation by requiring taxpaj'ers to pay an additional fee to use the grounds purchased and otherwise maintained with their money. But we do not think this can fairly be called double taxation, because the necessary effect of charg- ing an entrance fee is to reduce pro tanto the amount necessary to be raised by general taxation. Whether the amount received will prob- ably be adequate for that purpose is a question left by the Legislature to the business judgment of the commissioners, and will be a test of the propriety of their action in a particular case, but not a defect in the law itself. So we do not think that the act of 1908, fairly construed, justifies or authorizes the park commissioners to give away any municipal property or the use of it. We think, on the other hand, that a proper construction of the act requires them to collect a fair and reasonable compensation to the city for the limited period of time for which the use of the playground may be granted. This idea is embodied in the words "arrange and provide for" and in the further provision that the board may charge an admission fee. So long, therefore, as the commission in arranging for the giving of outdoor exhibitions, etc., do so on reasonable terms which should secure a fair revenue for the city from the privileges granted to the limited extent permitted by the present statute, we do not think that its action in arranging for an exhibition with individuals or organizations on a percentage basis is illegal. The test will be whether the proportion of the receipts coming to the city is reasonable or otherwise, and this point is not made in the present case. FORT WAYNE v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY. 1892. 132 Ind. 558. Coffey, J.^ This was an action brought by the appellee against the appellant, the city of Fort Wayne, to enjoin the latter from open- ing a street across the yard and tracks of the appellee situated within the limits of the city. The material facts in the case, as they appear in the special findings of the court, are, that in the year 1806, the city 1 Only so much of the opinion as discusses the power of the city to grant the land is given. — Ed. 444 FORT WAYNE V. LAKE SHOKE & MICHIGAN SOUTHERN RY. of Fort Wayne acquired a tract of land in fee simple, by purchase and deed, contiguous to the city for the purpose of a public park. The deed to the city contained no limitation nor conditions as to the pur- pose for which the land was purchased or was to be used, nor did it contain any restrictions as to the power of the city to convey the same. On the 23d day of March 1869, and before any steps had been taken to convert the ground into a public park, the common council of the city adopted a resolution by the terms of which it granted to the Fort "Wayne, Jackson and Saginaw Railroad Company twenty acres of the land off of the west side of the tract, upon the condition that the railroad company should run its line through the tract so granted, and locate its depots for local purposes thereon, and also locate any shops it might find necessary to build at Fort Wayne upon the same tract; and upon the further condition that the property and the north side addition to Fort Wayne should become annexed to and become a part of the city of Fort Wayne. The resolu- tion further provided that when the railroad company had complied with the conditions of the grant the mayor of the city should execute to it a deed of conveyance for the land donated. The city also re- served the right to cross the tracks of the appellant whenever it should determine to layoff an addition composed of the remainder of the tract. The donation of this land was made for the purpose of inducing the rail- road company to make the city of Fort Wayne its southern terminus, and to induce it to locate its depots for local purposes and its shops theron. Prior to February, 1871, the railroad company accepted the donation on the terms and conditions expressed in its resolution, took possession of the land and constructed its road-bed through the same, put in side tracks and switches, and erected a depot building thereon on the faith of tlie resolution, and located its yards on the ground for making up its trains, storing cars and conducting its business as a passenger and freight railroad, and prior to the 12th day of March, 1872, had expended in so doing several thousand dollars. On the l2th day of March, 1872, the common council of the city passed a resolution directing the mayor of the city to execute to the railroad company a deed for the land, which he accordingly did on the 26th day of the same month. The general rule is that municipal corporations possess the inciden- tal or implied right to alienate or dispose of the property, real or per- sonal, of the corporation, of a private nature, unless restiained by charter or statute. 2 Dillon Municipal Corporations (3d ed.), p. 569 ; Shannon v. 0' Boyle, 51 Ind. 565; 1 Washb. R. P. (3d ed.) 61; Reynolds v. Commissioner, etc., 5 Ohio, 204; Beach v. Ilaynes, 12 \'t. 15 ; Jamison v. Fopiana, 43 Mo. 565 ; Board, etc., v. Patterson, 56 111. Ill; Platter X. Board, etc., 103 Ind. 360; Newbold v. Glenn, 67 Md. 489. Municipal corporations cannot dispose of property of a public nature in violation of the trusts upon which it is held, nor of a public common ; but there is a distinction between property purchased for a HURON WATERWORKS CO. V. HURON. 445 public common and not yet dedicated, and property which is purchased for that purpose and actually dedicated to that use. The case of Bmoh v. ILiynea^ siq)ra, is very much in point here. In that case land had been purchased for a public common, and it was so expressed in the deed of conveyance, but before it was actually dedicated to that use it was conveyed away by the town of Westford, in which was vested the fee simple title, and it was held that such con- veyance vested in the grantee a good title. But in the later case of State V. Woodward, 23 Vt. 92, it was held that a municipal corpora- tion could not convey away a public common after it had been actually dedicated to the public use. Of course, the deed which vests title in the municipality may be of such a character as to dedicate the property to the public use, but such is not the case here. The deed to the city of Fort Wayne for the land in controversy vested in it the fee simple title without limitation or restriction as to its alienation. Such being the case, we think the city had the power to convey it for private use at any time before it was dedicated as a public park. Such seems to be the tenor of all the authorities upon the subject. HURON WATERWORKS CO. v. HURON. 1895. 7 S. D. 9. Action by certain taxpayers of the city of Huron to have the sale to the Waterworks Co. of waterworks belonging to the city declared void.^ Corson, P. J. . . . The city of Huron was incorporated under a special charter, and there are only three sections called to our attention as bearing upon the question, which are as follows : Section 1 provides : " That the city of Huron . . . shall have power to make all contracts necessary to the exercise of its corporate powers, to purchase, hold, lease, transfer and convey real and personal property for the use of the city . . . and to exercise all the rights and privileges pertaining to a municipal corporation." Section 7, pt. 8, provides as follows: ''The city council shall have power ... to organize and support fire com- panies, hook and ladder companies, and provide them with engines and all apparatus for extinguishment of fires, ... to construct and furnish reservoirs, wells, cisterns, aqueducts, pumps and other apparatus for protection against fires, and to establish regulations for the prevention and extinguishment of fires." Section 7, pt. 9, provides as follows : ''The city council shall have power . . . to construct and maintain waterworks and make all needful rules and regulations concerning the distribution and use of water supplied by such waterworks." 1 Statement of facts and arguments and part of the opinion omitted. The above statement is substituted for tliat of the Reporter. An action by tlie Waterworks Co. against the City was consolidated with the taxpayers' action. — Ed. 446 HURON WATERWORKS CO. V. HURON. The waterworks of said city, as found by the court, were constructed and used by said city of Huron for protection against fire and for domestic purposes, and it had been so maintained and used for a num- ber of years prior to said alleged sale. They were constructed by the corporation and at the expense of the same. No express power to sell or convey said property has been conferred upon the mayor and com- mon council of said city, nor upon the corporation itself, unless such power is included in the powers conferred upon the city by section 1 , which, as we have seen, provides " that the city of Huron . . . shall have power ... to purchase, hold, lease, transfer and convey real and personal property for the use of the citj', . . . and to exercise all the rights and privileges pertaining to a municipal corporation." The counsel for the respondents concedes that there is a class of property owned by a city that the common council of a city do not possess the power to sell, and he admits that public parks, squares, commons, cemeteries, etc., come within this class; but he insists that the water- works of a city, though constructed by the city at the expense of the corporation, and used for protection against fire, and for the purposes of supplying pure and wholesome water to the citizens, do not belong to this class. It is necessary, therefore, to determine the nature and character of waterworks properly held by a city. The grounds upon which municipal corporations are denied the power to sell and convey the class of property above referred to are that such property is held by the corporation for public use, and is therefore charged with a pub- lic trust of which the corporation cannot divest itself, except by the express authority of the lawmaking power of the state. The duties imposed upon municipal corporations for governmental purposes purely need not be considered, as it cannot be claimed that the exercise of the power to create and maintain city waterworks is strictly a governmental purpose, so far as it relates to the state at large. Neither are public squares, parks, wharves, cemeteries, landing places, fire apparatus, etc., held for governmental purposes, in the sense that they relate to the general public of the state ; but they are governmental in the sense that they exist for public use, — that is, for that portion of the public embraced within the limits of the city. This distinction is well stated by Judge Dillon in his work on Municipal Corporations. That learned author says: " As respects the usual and ordinary legislative and governmental powers conferred upon a muni- cipality, the better to enable it to aid the state in properly governing that portion of its people residing within the municipality, such powers are in their very nature public, although embodied id a charter, and not conferred by laws general in their nature and applicable to the entire state. But powers or franchises of an exceptional or extraordi- nary or noumunicipal nature may be, and sometimes are, conferred upon municipalities, such as are frequently conferred upon individuals or private corporations. Thus, for example, a city may be expressly authorized in its discretion to erect a public wharf, and charge tolls HURON WATERWORKS CO. V. HURON. 447 for its use, or to supply its inhabitants with water or gas, charging them therefor and making a profit thereby. In one sense such powers are public in their nature, because conferred for the public advantage. In another sense, they may be considered private, because they ax-e such as may be, and often are, conferred upon individuals and private corporations, and result in a special advantage or benefit to the muni- cipality as distinct from the public at large. In this limited sense, and as forming a basis for the implied civil liability for damages caused by the negligent execution of such powers, it may be said that a munici- pality has a private as well as a public character. And so, as here- after shown, a municipality may have property rights which are so far private in their nature that they are not held at the pleasure of the legislature." 1 Dill. Muu. Corp. § 27. While parks, squares, wharves, landing places, fire apparatus, etc., are not absolutely necessary, to enable a municipal corporation to perform its strictly governmental duties, so far as they relate to the state at large, they are so far held for governmental purposes that they cannot be appropriated to any other use without special legislation. Mr. Chief Justice Waite, in speaking of this class of city property in Meriweather v. Garrett, 102 U. S. 473, saysj " (1) Property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing places, fire engines, hose and hose carriages, engine houses, engineering in- struments, and generally everything held for governmental purposes, cannot be subjected to the payment of the debts of the city. Its pub- lic character forbids such an appropriation." And Mr Justice Field, in the same case (page 513) says : '' What, then, is the property of a municipal corporation, which, upon its dissolution, a court of equity will lay hold of and apply to the payment of its debts ? We answer, first, that it is not property held by the corporation in trust for a pri- vate charity, for in such property the corporation possesses no interest for its own uses; and, secondly, that it is not properly held in trust for the public, for of such property the corporation is the mere agent of the state. In its streets, wharves, cemeteries, hospitals, court- houses and other public buildings, the corporation has no proprietary rights distinct from the trust for the public. It holds them for public use, and to no other use can they be appropriated without special leg- islative sanction. It would be a perversion of that trust to apply them to other uses." It is difficult to perceive upon what principle a distinction can be made between the waterworks of a city, constructed at the expense of the corporation and used to supply water for fire purposes, domestic use, and other city purposes, and public parks, squares, fire apparatus, public buildings, etc., used for public purposes, and the courts in the latter decisions seem to make no such distinction. Judge Dillon, in his work above referred to, says: "In some of the states it is held that the private property of municipal corporations — that is, such as they own for profit, and charged with no public trusts or uses — may be 448 HURON WATERWORKS CO. V. HURON. sold on execution against them. . . . On principle, in the absence of statutable provision, or legislative policy in the particular state, it would seem to be a sound view to hold that the right to contract and the power to be sued give to the creditor a right to recover judgment, that judgments should be enforceable by execution against the strictly private property of the corporation, but not against any property owned or used by the corporation for public purposes, such as build- ings, hospitals, and cemeteries, fire engines and apparatus, waterworks, and the like; and that judgments should not be deemed liens upon real property, except when it may be taken in execution." Dill. Mun. Corp. sec. 576. It will be noticed that Judge Dillon places water- works in the same class with public buildings, hospitals, cemeteries, etc., and in this the learned author is fully supported by the very able deci- sion of the Supreme Court of the United States in Neiv Orleans v. Mor- ris^ 105 U. S. 600. Mr. Justice Miller, speaking for the court, says: " The learned counsel, in tlie oral argument and in the brief, substan- tially concedes that the waterworks themselves, in the hands of the city, were not liable to be sold for the debts of the city. And, if no such concession were made, we think it quite clear that these works were of a character which, like the wharves owned by the city, were of such public utility and necessity that they were held in trust for the use of the citizens. In this respect they were the same as public parks and buildings, and were not liable to sale under execution for ordinary debts against the city. ... In the next place, the city was not situ- ated, as regards this property, as a private person would be in the pur- chase and acquisition of ordinary property. The city could not have sold this property as the law stood. It could not have put it into a joint stock company without the aid of a new law. The legislature, in authorizing the change in the form of the ownership of the waterworks, could, since it injured nobody and invaded no one's rights, say, as to the city, whether it be called new property or not, that such ownership could continue exempt from execution. As the city was using no means in acquiring this stock which could have been appropriated un- der any circumstances to the payment of the debts of the appellees, the legislature impaired no obligation of the city in declaring the stock thus acquired exempt from liability for debts." This decision is im- portant, not only as being made by the highest court of the nation, but as being the unanimous opinion of that court upon the question, and made subsequently to the decision in the Meriweather case, above cited. It is clear and to the point that the waterworks of a city belong to tlie same class of property as "wharves, parks," etc., and holds distinctly that the waterworks property of a city cannot be sold, except by authority of the legislature, and the court says : " We think it quite clear that these works were of a character which, like the wharves owned by the city, were of such public utility that they were held in trust for the use of the citizens." The same view is taken by the Court of Appeals in the state of New York in the case of City of Eochester v. HURON WATERWORKS CO. V. HURON. 449 Toicn of Rush, 80 N. Y. 302. In that case the court says : " The ar- gument of the appeUant that the property in question would properly be exempt from a city tax, as it was procured by a tax upon property within the city, but not from a county tax, but the people of the county were not taxed to procure it, would apply with equal force to the city hall and engine houses and machines and equipments which make those houses necessary, and, if sound, would subject them to the hazard of sale under a treasurer's warrant for the enforcement of a county tax. I am unable to perceive that in any sense the waterworks can be re- garded as the private property of the city, as distinguished from prop- erty held by it for public use. These considerations lead to the opinion that the property was not taxable, and that the proceedings on the part of the assessors of the town of Rush in regard thereto cannot be sustained." The supreme court of Connecticut in the well considered case of Town of West Hartford v. J3oard of Water Com'rs., 44 Conn. 360, lays down the same doctrine. • In that case, the court says : " The in- troduction of a supply of water for the preservation of the health of its inhabitants by the cit}' of Hartford is unquestionably now to be ac- cepted as an undertaking for the public good, in the judicial sense of that term ; not indeed, as the discharge of one of the few governmen- tal duties imposed upon it, but as ranking next in order. For this purpose the legislature invested the city with a portion of its sover- eighty, and authorized it to enter within the territorial limits of "West Hartford, and condemn by process of law certain lands therein for the purpose of storing water for its own inhabitants. It authorized the assessment of a tax upon property within the city of Hartford for money wherewith to pay for this land, because the taking and holding was for the public good." Having, as we think, established the prop- osition, that the waterworks of a city, when constructed and owned by the city, are to be regarded the same as other city property held for public use, and therefore charged and clothed with a public trust, it would seem to follow that such property cannot be sold and conveyed by the mayor and common council of the city, unless under special au- thority conferred upon them to so sell and convey the same, by the legislative power of the state. Judge Dillon says in his work before referred to, that they (municipal corporations) cannot dispose of prop- erty of a public nature, in violation of the trusts upon which it is held, and they cannot, except under valid legislative authority, dispose of the public squares, streets, or commons. See 2 Dill. Mun. Corp. sec. 575, and cases cited. In the recent case of Roberts v. City of Louis- ville (decided in 1891) 17 S. W. 216, the same doctrine was laid doAvn by the supreme court of Kentucky as to the wharves held by the city of Louisville. In that case the court says : " The power of a municipal corporation to acquire land for the purpose of erecting wharves thereon, and to charge wharfage, is not a necessary incident of its charter, but must, like all its other powers, be derived directly from the legislature, 45Q HURON WATERWOKKS €0. V. HURON. of course to be exercised within the limits and upon conditions of the grant. Dill. Mun. Corp. sec. 110. And, looking to the nature and purpose of such special grant, it must be regarded as a trust, involving duties and obligations to the public and individuals which cannot be ignored or shifted ; for the power to acquire implies the duty of the municipality, through its governing head, to maintain and preserve wharf property for the benefit of the public, without discrimination or unreasonable charges for individual use. In every instance, so far as we have observed, wharf property of the city of Louisville has been acfiuired under act of the legislature, and paid for by taxation ; and in no case is there evidence of legislative intention it should be held other- wise than in trust for use of the public, and in aid of trade and com- merce. The wharf property being so held, the city of Louisville cannot transfer its title or possession, nor, according to a plain and well-set- tled principle, can the general council, which is by statute invested with power of control, and burdened with the duty of maintaining, preserv- ing and operating the wharves, either delegate the power or disable itself from performing the duties." In that case the judgment of the court below dismissing the bill for an injunction was reversed, the court, in effect, holding that an injunction enjoining the mayor and common council from making the sale should be granted. In the case of Smith V. Mayor, etc.^ of Nashville, 12 8. W. 924, also a late decision made in 1890, the Supreme Court of Tennessee says: "It is seen at once that the waterworks are a corporate property. That is not denied. The debate is with respect to the nature of the use. As to that, for the sake of convenience, we divide all the purposes for which the city furnishes water into three classes : (1) To extinguish fires and sprink- ling the streets ; (2) to supply citizens of the city ; (3) to supply per- sons and factories adjacent to but beyond the corporate limits. If the business were confined to the first class, there would be no ground to base a decision on, so clearly would the use be exclusively for public advantage. We think there can be but little more doubt about the second class, especially in view of certain words in the city charter, to which we will advert presently. . . . Having accepted the charter, and undertaken to exercise this authority in the manner detailed by the witness, it cannot be held that the city in doing so is engaging in a private enterprise, or performing a municipal function for a private end. It is the use of corporate property for corporate purposes, in the sense of the revenue law of 1877. It can make no difference whether the water be furnished the inhabitants as a gratuity or for a recompense, the sum raised in the latter case being reasonable, and applied for original purposes." From this examination of the authorities, we conclude that there is no distinction between the nature of waterworks property owned and held by the cit}^ and public parks, squares, wharves, quarries, hospitals, cemeteries, city halls, courthouses, fire engines, and apparatus, and other property owned and held by the city for public use. All such DE MOTTE V. VALPARAISO. 451 property is held by the municipality as a trustee in trust for tlie use and benefit of the citizens of the municipality, and it cannot be sold or disposed of by the common council of the city, except under the au- thority of the state legislature. Such property, as before stated, is private property, in the sense that the municipality cannot be deprived of it without compensation, no more than can a private corporation be deprived of its property by the law-making power. But such prop- erty is so owned and held by the municipality as the trustee of the cit- izens of the municipality, for the use and benefit of such citizens. It has been acquired by the corporation at the expense of the taxpayers of the city, for their use and benefit, and the law will not permit the corporation to divest itself of the trust, nor to deprive the citizens of their just rights as beneficiaries in the same. DE MOTTE V. VALPARAISO. 1903. 161 Ind. 319. DowLiNG, J. The appellants, who are described as residents and taxpayers of the city of Valparaiso, brought this suit to enjoin a threatened sale and transfer by said city of a right to purchase a system of water-works owned by a private company, and constructed and used in the streets, alleys, and public grounds of said city, reserved to and held by said city in and under a contract between said city and George P. Smith and others made February 16, 1885. The part of said contract which is material here is as follows : "At any time after the expiration of fifteen years from the completion of said water- works the city shall have the right to purchase the same by giving the owners thereof one year's notice in writing, and in case of purchase the city shall pay a reasonable value for the same which shall be ascertained by three disinterested hydraulic engineers, one to be chosen by the city, one by the owners of the water-works, and the third selected by the two thus chosen." The works were completed December 31, 1885, and afterwards Smith and his associates sold and transferred the same, with all rights, franchises, and privileges created by the said ordinance, to the Valparaiso City Water-Works, which has ever since owned and operated them. The city has a population of more than 5,000 inhabit- ants, and less than 7,000, and is organized under the general laws of this State for the incorporation of cities. It is indebted beyond two per centum of the valuation of its taxable property, its indebtedness being about $95,000, and the appraised value of its taxable property for the year 1902 being $2,300,000. Its current revenues of late years have been insufiicient to pay its general expenses and the interest on its debts. It is averred in the answer, among other things, that the said water- 452 DE MOTTE V. VALPARAISO. works had never been owned by said city, and bad never been dedicated to any public use. A demurrer to the answer was overruled, and this decision is as- signed for error. The question presented is whether the city has thp power to sell and transfer its right to purchase said water-works, so reserved in the ordinance. It is contenddd by counsel for appellees that such reserved right is held in trust by the city for public purposes in the same manner and subject to the same restrictions upon the power of the city to sell and convey it as the water-works themselves would be held if owned and operated by the city. Lake County Water & Light Co. v. Walsh, 160 Ind. 32; Pittsburg, etc., R. Co. v. Town of Croion Point, 146 Ind. 421 ; Trustees, etc., v. Mayor, etc., 33 N. J. L. 13, 97 Am. Dec. 696. There is, in our opinion, an obvious legal distinction between a right of a city to purchase property for a public use, and the ownership of property actually dedicated to and employed for public purposes. It is not the fact that property may be devoted to public use by the city at some future day which constitutes the city a trustee for that use, but it is the circumstance that the property is actually so used. The city of Valparaiso is not the owner of the water-works, and may never ac- quire the title thereto, either because it has not the means with which to purchase the works, or for the reason that such purchase may not be deemed expedient. The property is now held by a private corpo- ration, and will continue to be so held unless the city shall become financially able to buy it, and its acquisition shall be decided to be for the advantage of the city. If the city remains unable to purchase for lack of funds, or if it shall not be thought desirable to exercise the right of purchase, the service to the public rendered by the Valparaiso City Water-Works will continue to be of the same nature, extent, and efficacy, and upon the some terms, whether the city retains its right to purchase the works, or disposes of that right by a sale and transfer. In City of Ft. Wayne v. Lake Shore, etc., R. Co., 132 Ind. 558, 18 L. R. A. 367, 32 Am. St. 277, this court held that land purchased by tlie city of Ft. Wayne for the purposes of a public park, but never dedi- cated to such use, might be sold by the city under its general power to sell and convey property, real and personal, owned by it as a munici- pal corporation, although it could not do so if the land had been applied to the purposes for which it was bought, and was so used. We think this principle applies to the present case. As the right to purchase has not been exercised, and the city has not impressed its possible interest in the property with a public use, it may sell and transfer such right under its general power to sell and convey property which has not been dedicated to a public use. Judgment affirmed. Gillett, J., did not participate in this decision. BAILY V. PHILADELPHIA. 453 BAILY V. PHILADELPHIA. 1898. 184 Pa. 694. Bill in equity to declare illegal and void a lease of the Philadel- phia Gas Works.^ Mitchell, J. The gas works are the property of the city of Phila- delphia, not as a municipality, but as a business corporation. How- ever much the idea that the city is not required by its municipal duty to supply its citizens with light in the streets and public places, may seem to fall below the modern conception of a city, it is beyond ques- tion on settled legal principles, that in the performance of that func- tion the city acts under authority merely and not under municipal obligation. This was the rule of the common law, and no statute in reference to the city of Philadelphia has altered it. Hence the city may change its mode of action, or cease to act altogether, in its dis- cretion, and the discretion is purely legislative. The courts have no power to interfere unless the proposed action contravenes some ex- press statute, or violates some binding contract. These principles are elementary and need not be enlarged upon, since they are conceded by the learned counsel for appellants, and the corollary admitted that the lease now sought to be enjoined would have been clearly within the power of the city prior to the Act of June 1, 1885, P. L. 37, commonly known as the Bullitt Bill. The argument of the appellants is arranged under three heads, and may be conveniently considered in that order. First, that the ordinance for the lease of the gas works is an inter- ference with the executive functions of the department of public works, and therefore within the prohibition of the act of June 1, 1885. Of that act this Court has already declared that "the subject with which it deals is the administrative government of cities of the first class, and its manifest purpose was to reform existing abuses in the executive department of the only city of that class," Com. ex rel. v. DeCamp, 177 Pa. 112. The particular provisions of the act which are relied on by the appellants are art. I., sec. 1, "There shall be the following executive departments : . . . Department of Public Works ; " art. IV., sec. 1, "The Department of Public Works shall be under the charge of one director who shall be the head thereof. Gas works owned and controlled by the city, the supply and distribution of gas ... the lighting of streets, alleys, and highways . . . shall be under the direction, control, and administration of the Department of Public Works ; " and art. XVI., " Councils shall by general ordinances pro- vide for the proper and efficient conduct of the affairs of the city by 1 Statement of facts and arguments omitted. — Ed. 454 BAILY V. PHILADELPHIA. the mayor and several departments, and the boards thereof ; but they shall not pass any ordinances directing or interfering with the exercise of the executive functions of the mayor and departments, boards or heads or officers thereof." These provisions do not take away nor in any degree lessen any municipal authority previously lodged in the city, still less any merely business corporate power. They merely regulate the oper- ation of its executive and legislative functions as to such public prop- erty of the enumerated classes as the. city may at any time have. The prohibition to councils in article 16 is against interference with " the exercise of the executive functions " of the departments. The lease or sale of the gas works is not an executive function. If it was it would belong to the director of public works as the head of the department. But no one would contend that the director has any power to make a sale or such a lease. That is a parting with the title and possession of the city, which can only be done by a legislative act. As a legisla- tive act it is within the clear power of the cit}-. The right to change the property which is the instrument through which the city exercises its powers, is inherent in its ownership, whether municipal or merely corporate, unless prohibited by contract or by the terms of a trust upon which it was acquired. But to avoid all doubts the right of alienation is given in express words in the charter of 1789, all the powers granted in which were preserved by the consolidation act (Act of February 2, 1854, sec. 6. P. L. 25) and which appears to be still in force : Com. v. Walton, 182 Pa. 373. And the right is not taken away by the act of 1885, which, as already said, merely regulates the mode of exercise of executive, and incidentally of legislative, func- tions without changing the rights which appertain to those functions. But it is urged that although the city may sell and change the specific property, it cannot abdicate the function, and must therefore substitute other property through which its control and operation of the franchise may be continued, and the analogy is relied on of a trustee wnth a power to sell, who may by virtue thereof change the subject-matter but cannot destroy the trust. This brings us back again to the preliminary question on which the whole case rests, whether supplying the public places and private citizens with gas for lighting purposes is a strictly municipal function, or merely a power conferred on the city as a corporation. If the former, it is a duty as well as a power, and cannot be abandoned ; if the latter, it is an au- thority only and may be exercised or not at the city's option. Al- though the appellants start out with the concession that the lease in question would have been within the city's powers prior to the act of 1885, yet the elaborate and ingenious argument for them rests upon the contention that the lighting of the city, at least since that act, is a municipal duty, and though presented in different aspects and from different points of view, the argument constantly comes back to this contention, for without it there is confessedly no ground for the case to rest upon. But for reasons already stated, we are of opinion that BAILY V. PHILADELPHIA 455 the tict of 1885 marie no change in the city's municipal powers, either iuiaereut or statutory, but merely regulated their exercise so far as re- lated to executive officers, and incidentally to such purpose restrained what had become legislative usurpation. Under that act, so long as the city owns and operates the gas works, it must do so through the department of public works, but there is no compulsion upon the city to continue the manufacture and sale of gas at all, or to do it through its own officers, if in its legislative judgment it is no longer expedient to do so. The second proposition of the appellants is that the ordinance assumes in respect to the public lighting to delegate a public legisla- tive power, and in resi)ect to the private lighting to confer a monopoly on the srantee ; and in both cases to bind the discretion of councils for a long term of years. It is manifest that this proposition in the use of the phrase " public legislative power" comes back, as already indicated, to the contention that public lighting is a municipal duty. It is true that it is a legislative power, in the sense that it is the exer- cise of the will of the owner with respect to ownership«of the property. If such ownership was coupled with a municipal duty such duty could not be escaped by lease or other form of delegation. But the gas works, as already discussed, are held by the city as a business corpo- ration. If the use of gas should be so far superseded as to make its manufacture and sale unprofitable, there is no compulsion on the city to continue it or to embark in any new venture for the supply of a different Jight. And if the management and operation of the works can be more profitably or more conveniently carried on by a lessee, instead of by the city's own immediate servants, the citj^ in making a lease is determining a business question in its legislative corporate capacity, just as any private corporation might do, but is not delegat- ing any municipal power, legislative or other, which involves municipal duty. In regard to the conferring of a monopoly, the appellants cite the provision in the lease that " the city of Philadelphia agrees that dur- ing the term of this contract it will do nothing by ordinance or other- wise which will in any way interfere with, or limit, restrict or imperil this exclusive right hereby vested in the said United Gas Improvement Company, its successors or assigns," and claim that this creates a monopoly^ which is void on the ground of public policy. To this ob- jection it would be a sufficient answer that, as already held, the city in this matter is acting in its business, not its governmental, capacity, and the owner of business property, even though a municipal corpora- tion, may in dealing with it make such terms as in its discretion it deems best for its interest. When the owner of a business sells it with its good-will, etc. , he may agree as part of the consideration to the purchaser, not to go into the same business again as a rival, within an agreed territory or for an agreed time. The city of Philadelplii;i selling its gas-making plant and good-will may do the same thing. 456 BAILY V. PHILADELPHIA. But in the provision of the lease now under consideration the city does rot assume to grant any franchise. It could not do so if it would. "What the city does is to covenant that it will do no act in the deroga- tion of the right of the lessee under the grant to operate the gas works and supply the citizens with light therefrom. The franchise of the lessee to furnish light is not derived from the city but from the legis- lature ; whether it is exclusive or not at present, or shall be exclusive or not in the future, does not and will not depend on the city, but on the legislature. All that the city does is to agree that it will do no act itself whereby the privileges granted by it to the lessee, and intended to be exclusive so far as it is concerned, shall be limited or interfered with. This was clearl}' within its powers in dealing with its business property. Whether the legislature may hereafter impose upon the city a municipal duty in regard to lighting which may conflict with its present contract is a question we need not consider until the case shall arise with proper parties in interest to such a question. It is further argued that the lease undertakes to bind the discretion of councils for a long term of years. This again comes back to the contention that lighting the city is a strictly municipal or governmental function, as to which councils cannot bind their successors. But as already held the city is acting in its business capacity only, and the contract binds it in that capacity. All C9ntracts which contemplate things to be done after the immediate present must, to that extent, bind and limit the power of the contracting party. This principle has already been adjudicated in its application to the city of Philadelphia and the gas works in the cases of the Western Saving Fund Society v. PJtila.y 31 Pa. 175, Same v. Same, 31 Pa. 185, and Wheeler et al. v. Fhila., 11 Pa. 338. The last proposition of the appellants is that the ordinance impairs the obligation of the city's contract with certain holders of its bonds. This was the ground of decision in Western Saving Fund Society V. Phila., supra. But the cases are not at all alike in the facts. In Saving Fund Society v. Phila. the ordinance of 1841 distinctly pledged the revenues of the gas works to the creditors for security of payment of the bonds, and provided for the management by trustees for that purpose. The ordinance of 1868, under which Mr. Campbell, one of the complainants, is a bondholder, has no such provision. The loan was made to the city, and upon the city's general credit, without any pledge of its revenues from the gas works or any other specified source. On the contrary the ordinance gave express notice in section 4, that the terms and provisions of the ordinance of 1841 should not apply in any way to this loan. Section 3 of the ordinance requires the reten- tion by the trustees of the gas works of a certain per cent, of the amount of the loan, annually, and its payment into the city treasury, whereupon the city undertakes to apply part of it to the payment of the interest on the loan and to pay the other part into the sinking fund. These provisions are not part of the contract between the city GUSHEE V. NEW YORK. 457 and iue loanholders, but are terms imposed by the city on the trustees of the gas works as conditions on which the city will raise the money for the latter's use. Without these terms the city would have had to meet the bonds at their maturity out of general taxation, and could not have looked for repayment from tlie revenues of the gas works unless at the option of the trustees. By these terms the city guarded itself from this risk, and secured repayment to itself from the revenues of the department for whose use it had borrowed the mone}'. But the requirements of this section were for the protection of the city only and involved no pledge to the loanholders. They loaned on the general credit of the city, and perhaps also on the faith of the sinking fund pledged for the payment of this and other loans. But there is no averment that the sinking fund has not been kept up by appropriation from the city treasury from time to time as required by law. Without such averment and proof it does not appear that any obligation of the loanholders contract has been impaired. None of the grounds on which the court is asked to interfere can be sustained, and the injunction was rightly refused. Decree affirmed at costs of appellants. GUSHEE V. NEW YORK. 1899. 42 App. Div. 37. RuMSET, J.^ On the bank of the Hudson river, on the west side of the city of New York, is situated Riverside Park, and upon an emi- nence at the upper end of that park stands a building with stables and other outbuildings, which has been fitted for a place of rest and re- freshment for persons who have occasion to use the park. For some years, and certainly as far back as 1892, the department of parks had granted the right to keep a restaurant in the park either for a rental paid monthly, or for a certain portion of the receipts. In the month of March, 1896, the person who had been in possession of the restau- rant left it for some reason, and an agreement was made between the authorities of the city by department of parks on the one hand and the plaintiff here on the other, by which there was gi*anted to the plain- tiff the right to keep this restaurant. That grant or license would, by its terms, expire on the 1st of April, 1897. On the 24th of February, 1897, the plaintiff applied for a renewal, and negotiations to that end were completed between the department of parks and the plaintiff in the month of November, 1897, at which time the«department of parks, claiming to act for the city, granted to the plaintiff the privilege of selling refreshments in the building in the park which was known as "Claremont" for the term of five years from the 1st day of April, 1 Part of the opinion and the dissenting opinion of Barrett, J., are omitted. — Ed. 458 GUSHEE V. NEW YORK. 1897, unless the agreement be sooner revoked, or canceled or annulled, as therein provided. The plaintiff, on his part, agreed to enter upon the exercise of the privilege thereby granted, and to conduct the res- taurant in a style and manner satisfactory to the department of parks, and under such restrictions, rules and regulations as might be pre- scribed by them. He made further agreements as to the rates of charges and repairs and other matters which need not be considered here, and agreed to pay to the department for the privilege the sum of $525 a month. It was further agreed that the agreement and privilege thereby granted were personal, and that the plaintiff would not assign the same, or any part thereof, without the written consent of the department. The plaintiff made a further stipulation that he would conform, and require all persons in his employ to conform, to all rules, regula- tions, requirements and ordinances then prescribed, or which thereafter might be prescribed, by the department in relation to the conduct of the privileges thereby granted, and the general character of the furni- ture, fixtures, equipment, employees and all things pertaining thereto, or to the general management or government of said park. It was further agreed that if he should omit to keep any of the covenants, the agree- ment might, at the option of the department, be revoked, and should thereupon become null and void, and he should remove the building and premises, and cease to exercise the privileges granted to him. The plaintiff alleges in his complaint that the department of parks threatens to eject and remove him from the possession of the building, and will do so unless it is restrained ; and he brings this action to pro- cure an injunction restraining the department from interfering with him in the conduct of his hotel or from preventing him from enjoying the privileges granted by this agreement. Upon the trial the foregoing facts were established, and it was made to appear that on the 29th of April, 1898, the park commissioner of the boroughs of Manhattan and Richmond notified the plaintiff that he had that day revoked, canceled and annulled the license agreement under which he was conducting the hotel or restaurant in Riverside Park, known as " Claremont," and ordered the plaintiff to vacate the premises on or about the 15th of May, 1898. At the conclusion of the plaintiff's case, no testimony having been offered on the part of the defendant, the court directed judgment to be entered restraining the commissioner of parks from interfering with the plaintiff in the conduct of said hotel, and from in any way preventing the said plain- tiff from enjoying the privileges granted to him by the agreement of November 8, 1897. From that judgment this appeal is taken. The defendant insists that as this action is in equity, to restrain the defendant from putting an end to the agreement between it and the plaintiff, it must be based upon the theory that he has no legal right, as against the defendant, to the possession of this restaurant. This contention is not well founded. In view of the way in which the ques- GUSHEE V. NEW YORK. 459 tions here are presented, it is not necessary to consider whether the plaintiff has a remedy at law for the grievance of which he complains. No such question was raised at the trial by motion, nor is there any allegation in the answer that the plaintiff has an adequate remedy at law. If the defendant proposed to rely upon that point it should have raised the question in its pleading; Toiv?i of Mentz v. CooJc, 108 N, Y. 504 ; or at least should have taken the point upon the trial of the ac- tion. As it has not done so, it must be deemed to have waived that point. The question is then presented whether the plaintiff, by this agree- ment, acquired any right which the courts would protect, either at law or in equity. By the terms of the agreement the plaintiff, was bound to keep, maintain and conduct the restaurant in a manner prescribed therein. He was to keep the building in repair, and to maintain it in good and proper condition. This duty necessarily required him to take and keep possession of the buildings while the agreement was in force. He bound himself during that same time to pay for the rights he acquired the sum of $525 a month. This agreement, involving, as it did, the possession of real estate and the payment of a monthly rent for it, was practically a lease. 4 Kent's Comm. 96, 97 ; Taylor Landl. & Tei>. [8th ed.] § 38. At the time the agreement was made, the charter of the greater city had not taken effect, and the department of parks of the then city of New York was exercising the powers given to it by the Consolidation Act (Laws of 1882, chap. 410). By section 668 of that act, that department was required and empowered to con- trol and manage all public parks. There is a well-recognized distinc- tion between the duties imposed by the Legislature upon a municipal corporation for the public benefit and those acts which it does in what may be called its private character, in the management of property voluntarily held by it for its own use and advantage, although such use may ultimately inure to the benefit of the public. Bailey v. The Mayor, etc., of New York, 3 Hill, 531. The boundary between these two kinds of powers is shadowy and difficult of demarcation. Whether a city, in the control of property which it has taken for a park, acts in the one capacity or the other, it is difficult to say. It has been held by a court of high reputation that, in the opening and control of public parks, a city acts in its private capacity as the owner of land precisely as it does in the making of water works or the furnishing of gas. Board of Park Comrs. v. Detroit, 28 Mich. 228; Dillon Mun. Corp. [4th ed.] §§ 72, 73. The department of parks acted, in making this agreement, in the exercise of the power given to it by the Legislature to control and man- age the parks. The building in question was the private property of the city. It was proper that it should be utilized for the purpose for which it was used, if, indeed, it were not actually erected for that purpose by the city authorities. That in the control and management of the public parks of a great city it is perfectly proper to furnish 460 GUSHEE V. NEW YOKE. not only such innocent amusements as may enhance the pleasure of those who resort to the parks, but such opportunities for rest and re- freshmeut for themselves and their animals as may be required, will not be disputed. The doing of these things is no part of the public duty imposed upon municipal corporations as the agent of the State in the performance of its governmental fuuctious, but rather a part of the business of the city which it may or may not undertake in its private capacity as the owner of the lands which have been set apart for park purposes. Whether these things shall be done at all, and, if so, to what extent, is a matter with which the State, as such, has no concern whatever, and which in no way affects the public duties of the city and has no connection with any function of government, strictly so called. The Legislature has imposed upon the city certain duties in respect of the maintenance of order and the punishment of crime. These duties are public and governmental in their nature and in the performance of them the city acts as the agent of the State. But such duties, whether imposed upon the city or upon the department of parks, are of an entirely different character from those which are imposed upon that department by the power which is given to it to make the parks use- ful and convenient for the pleasure and comfort of the citizens. AVhether in doing those things the authorities shall act themselves, or whether they shall be performed by private persons under an agree- ment with the park authorities, must be left very largely to the dis- cretion of those who have control of the parks. If in their judgment it shall seem better that the furnishing of refreshment shall be farmed out to some person for a consideration, subject to the regulation and control of the authorities, it cannot be said, as a matter of law, that such discretion is beyond their power. If in the exercise of that dis- cretion it should be more advantageous to grant such a privilege for a fixed period, it certainly would not be beyond the power of the depart- ment, unless it interfered with some other power or prevented the discharge of some other duty which the Legislature imposed upon them, and with the exercise of which such an agreement was inconsist- ent. There is nothing in an agreement to permit these things to be done for a fixed period of time which of itself is outside of the power of the department of parks to control and manage the parks ; and it cannot be said as a matter of law that any particular period for w^hich such a license should be granted or agreement made, would be unreasonable or tdtra vires, unless it interfered with some other and positive duty. But it is said by the defendant that the making of this agreement, by which the possession of tliis house was given to the plaintiff for a term of five years, put it out of the power of the department of parks to exercise the duty imposed upon it of making rules and regula- tions, and enacting such ordinances as might be necessary for the gov- ernment and protection of parks. The argument is that if it should happen that the commissioners of parks concluded that it was not best GUSHEE V. NEW YORK. 461 to conduct a restaurant at "Claremont, " they were precluded by the agreement with the plaintiff from closing the restaurant during the term of five years, and this is the reason wiiy it is said that the agree- ment was beyond the power of the department of parks, and, therefore, is void. in considering this point it must be remembered that it is not claimed on the part of the defendant that the department of parks has detei'- mined that no restaurant should be kept at this place and in this building, nor is there any evidence or suggestion that the plaintiff is not a perfectly proper person to keep it, or that he or any of his em- ployees have failed to observe all the rules and regulations that have been made for the government of the park. It does not appear that any regulation or ordinance has been made or is intended to be made by the commissioners of parks or by the commissioner in charge of this park, which would in the slightest degree be affected by the plaintiff's continuing in this business at this place, or that the opera- tion of this restaurant by him would be inconsistent with any regula- tion or ordinance which is intended to be made. Nothing of the sort has been proven, nothing of the sort is found by the court, and we would not, for the purpose of reversing this judgment, be at liberty to infer that anything of the kind existed ; Equitable Co- operative Foundry Co. v. Hersee, 103 N. Y. 25. If anything of the kind did exist, it would present an entirely different question from that which confronts us here. The question as presented is simply whether this agreement by which the plaintiff is authorized for a fixed period to operate this restaurant, is so utterly void that he will not be protected in the exercise of his rights, but is liable to be removed at the mere caprice of the commissioners of parks without any sug- gestion that his presence or the continuance of his agreement inter- feres in the slightest degree with the performance of their duties. A decision in favor of the defendant involves the proposition that, with- out any reason, it may remove this man at its will from this restaurant, and put in some one else to keep it in the same circumstances and at the same rent. If that be the rule it would prevent the granting of such a license for any period, however short. It cannot be said, as a matter of law, that the granting of a license for five years is unrea- sonable, and we cannot make any such presumption for the purpose of reversing this judgment. The department of parks is one body, with a continuous existence, although its membership may vary from time to time. Its duty to exercise its discretion must continue unimpaired at all times, and it has no power to deprive itself of that discretion for a week, any more than it has for five years, so that it necessarily follows that if this contract cannot be made no other contract can be made which would entitle anybody to conduct this restaurant for any specified time, however short. It is apparent that, if that be true, the department of parks could never make any contract by which any per- son would undertake the conduct of this restaurant, for no intelligent 462 pike's peak power go. v. colokado springs. person would incur the expense necessary for this undertaking if he were liable at the mere caprice of the department to have his contract determined and to be removed immediately after he had made it. In our judgment no such absurd conclusion is required. The power to control and manage the parks necessarily involves the right to cause this restaurant to be conducted by some person with whom a contract shall be made for that purpose. Whatever contract is necessary for that purpose is made subject to the exercise by the department of parks of such other duties as the law devolves upon that department. The contract as made must be deemed to have been made in view of the possible exercise of that power if it becomes necessary to exercise it. We are not advised of any principle which requires that this con- tract should be held to be void unless it shall appear that it has become obnoxious to some regulation or ordinance which has been enacted for the government of the parks. But the agreement is in terms subject to all rules, regulations and or- dinances now prescribed, or that might hereafter be prescribed by the de- partment, relating to the conduct of the privileges granted by it, and the general character of the fixtures, equipment, employees and all things appertaining thereto, and to the general management and government of the parks, and the plaintiff takes his contract subject to any such regulations. Even were no such provision in the contract, it would still be subject to any regulations or ordinances which the department of parks might see fit to enact for the better government of the parks, or the preservation of order in them, or for the performance in any other way of what might be called its governmental functions. As to those matters it cannot, by any such agreement, abdicate its functions or abandon the duty which the law has put upon it, nor can this con- tract be so construed as to control in any way the management or the exercise of those functions. PIKE'S PEAK POWER CO. v. COLORADO SPRINGS. 1900. 105 Fed. 1. Bill to enjoin the enforcement of an ordinance by which the city of Colorado Springs withdrew the right, previously given to the plaintiff, to use the water power of a stream which supplied the city with water. ^ Sanborn, Circuit Judge. . . . Another position urged by counsel for the appellee is that the system of waterworks of this citj', its streets, parks, and public grounds, are held by the municipality in its political or governmental, and not in its proprietary or business, capacity ; that, consequently, they cannot be converted from municipal uses, and a city ^ This short statement is substituted for that of the Court. Part of the opinion only is given. — Ed. pike's peak power CO. V. COLORADO SPRINGS. 463 council cannot make any agreement or contract relative to them which a succeeding council may not freely annul. The proposition is not novel. It has received the careful consideration of this court, and, so far as the question it presents is material to the issues in this case, it is no longer open to debate here. In Illinois Trust & Savings Bank V. City of Arkansas City, 76 Fed. 271, 282, 22 C. C. A. 171, 181, 40 U. S. App. 257, 276, 34 L. R. A. 518, 525, this court an- nounced its conclusion in these words : "A city has two classes of powers,— the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people ; the other, proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personal- ity. In the exercise of the powers of the former class it is governed by the rule here invoked. In their exercise it is ruling its people, and is bound to transmit its powers of government to its successive sets of officers unimpaired. But in the exercise of the powers of the latter class it is controlled by no such rule, because it is acting and contract- ing for the private benefit of itself and its inhabitants, and it may exercise the business powers conferred upon it in the same way, and in their exercise it is to be governed by the same rules that govern a pri- vate individual or corporation. Dill. ]\Iun. Corp. (3d Ed.) § 66, and cases cited in the note ; /■'Safety Insulated Wire & Cable Co. v. City of Baltimore, 13 C. C. A. 375, 377, 378, 66 Fed. 140, 143, 144; San Francisco Gas Co. v. City of San Francisco, 9 Cal. 453, 468, 469 ; Com. V. City of Pliiladdpliia, 132 Pa. St. 288, 19 Atl. 136; New Orleans Gaslight Co. v. City of JSfeio Orleans, 42 La. Ann. 188, 192, 7 South. 559, 560; Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 Wash. St. 316, 325, 28 Fac. 516, 519, 14 L. R. A. 669 ; Wagner v. City of Bock Island, 146, 111. 139, 154, 155, 34 N. E. 545, 548, 549, 21 L. 'r. a. 519 ; City of Vincennes v. Citizens' Gaslight Co., 132 Ind. 114, 126, 31 N. E 573, 577, 16 L. E. A. 485 ; City of Indianapolis v. Indianapolis Gaslight & Coke Co., 66 Ind. 396, 403; Read v. Atlantic City, 49 N. J. Law, 558, 562, 9 Atl. 759. In contracting for water- works to supply itself and its inhabitants with water, the city is not exercising its governmental or legislative powers, but its business or proprietary powers. The purpose of such a contract is not to govern its inhabitants, but to obtain a private benefit for the city itself and its denizens. 1 Dill. Mun. Corp. § 27 ; City of Cincinnati v. Cameron, 33 Ohio St. 336, 367; Safety Insidated Wire & Cable Co. v. City of Balti- more, siipra, and cases cited under it." The purpose of the city in making the contract of September 8, 1898, was to enlarge its waterworks, to increase its suppl}' of water, and to furnish itself and its inhabitants with electric light. In contracting for these purposes the city was exercising its proprietary or business powers. It is controlled by the same rules that govern a private cor- poration, and its contract bound its successive sets of officers. 464 pike's peak power co. v. Colorado springs. The next proposition which counsel for the city seek to maintain is that the water system of the city and the water which flows through it are held in trust by the municipality for the suppression of fires, for the domestic use of its inhabitants, and for other customary municipal purposes ; and that the city council has no power to divert them to the generation of electricity for private use, or to any such purposes. Before entering upon the consideration of this position, let us see what the power of the city is in regard to the establishment and management of its water system, and what, under the facts of this case, this conten- tion really is. The statutes of Colorado provide that the city councils of cities in that state shall have power to manage and control all their property (2 Mills' Ann. St. § 4492); to erect waterworks on a favor- able vote of their electors (2 Mills' Ann. St. § 4403, par. 67); "to construct or authorize the construction of such waterworks, without their limits, and for the purpose of maintaining and protecting the same from injury and the water from pollution, their jurisdiction shall extend over the territory occupied by such works, and all reservoirs, streams, trenches, pipes and drains, used in and necessary for the construction, maintenance and operation of the same, and over the stream or source from which the water is taken, for five miles above the point from which it is taken ; and to enact all ordinances and regulations necessary to carry the power herein conferred into effect" (Id. par. 68) ; to con- struct reservoirs in public places in the city or beyond the limits thereof for the purpose of supplying the same with water ; to provide proper conducting pipes to regulate the distribution of water for irrigation and other purposes (Id. par. 72). From these provisions of the statutes it will be seen that the city council of the appellee had plenary author- ity to manage and control the water system and all the property of the city, and to distribute and apply its water not only to ordinary munici- pal uses, but to *' irrigation and other purposes." These were the powers of the council in this regard. Now, what was the state of facts when the ordinance of September, 1898, was passed? The city was not then engaged in initiating and constructing a system of waterworks. That had already been done. A system extending from watersheds on Pike's Peak, 19 miles distant, and 6,000 feet above the level of the sea,' had been constructed and operated for years. The city had outgrown this system, and a contract had been made three 3'ears before for the construction of a tunnel to enlarge it, and to increase its supply of water. The contractors had exhausted their means and their credit, and the tunnel still lacked an expenditure of $100,000 to complete it. This was the state of the facts. No one questions the power of the council of this city to contract for this tunnel, and to agree to pay for it in the money of the city. No one questions its power to procure electric lights, conduits, and poles to carry its telegraph and telephone wires, and to pay for them with the funds of the city. Its authority to do these things is so plain and full that it cannot be denied. Now, what did the city do, and what is the actual contention of its counsel pike's peak power CO. V. COLORADO SPRINGS, 4G5 here? The price agreed upon by the contract of 1895 for the comple- tion of the tunnel was not compensatory. It would not pay for the work necessary to be done. The contractors could not complete it without other compensation. Thereupon the city did this : It procured the completion of the tunnel, the right to use the conduits and poles of Jackson, his associates and assigns, to carry its wires, electric lights for its public buildings, and electric power to the extent of 50 horse power, without the payment of an additional dollar of the city's money, in consideration of a permit or license which it gave to the grantees in the September ordinance of the right to use the idle water power that existed and was running to waste in its water system. Now, what is the real contention of the counsel for the city here? It is that, while the city council might lawfully have contracted for these public utilities, and have taxed its constituents, and have paid out their money to obtain them, it had no authority to procure them for and to pay for them with the idle water power that existed in the water system of the city, without the expenditure of a dollar of the money of the citizens. It is, in fact, that municipal corporations hold all that part of public utilities which they cannot apply to customary municipal uses in trust to waste to the loss of their cestnis que trnstent, and not in trust to use for their benefit. This proposition, when reduced to its last analy- sis, finds no support in reason or authority. It is true, as counsel for the city assert, that the water, the water system, and the other public utilities of a municipality are held by it and by its officers in trust for its citizens, and for the public; that neither the city nor its officers can re- nounce this trust, disable themselves from performing their public duties, or so divert or impair these utilities that they are rendered inadequate to the complete performance of the trust under which they are held. Union Pac. By. Co. v. Chicago, E. I. & P. Ry. Co.^ 51 Fed. 309, 317, 2 C. C. A. 174, 231, 10 U. S. App. 98, 175, and cases there cited. But it is equally true that municipalities and their officers have the power, and it is their duty, to apply the surplus power and use of all public utilities under their control for the benefit of their cities and citizens, provided, always, that such application does not materially impair the usefulness of these facilities for the purposes for which they were primarily created. JJnion Pac. Ry. Co. v. Chicago R. I. & P. Ry. Co., 51 Fed. 309, 321, 2 C. C. A. 174, 234, 10 U. S. App. 98, 180 ; City of St. Louis v. I%e Maggie P. (C. C), 25 Fed. 202 ; State v. City ofEau Claire, 40 Wis. 533 ; Green Bay & M. Canal Co. v. Kaukauna Water-Poiver Co., 70 Wis. 635, 35 N. W. 529, 36 N. W. 828 ; Bell v. City of Platteville, 71 Wis. 139, 36 N. W. 831 ; French v. Inhabitants of Quincy, 3 Allen, 9 ; Worden v. Ci/y of Neio Bedford, 131 Mass. 23; Camden v. Camden Village Corp., 11 Me. 530, 537, 1 Atl. 689 ; Brown V. Winnisimmet Co., 11 Allen, 326, 334; Midland Ry. Co. v. Grreat Western Ry. Co., 8 Ch. App. 841, 851 ; Simpson v. Hotel Co., 8 H. L. Caa. 712 ; Hendee v. Pinkertov, 96 Mass. 381, 386. This question was presented to this court and exhaustively argued by able counsel in Union 466 pike's peak power co. v. colokado springs. Pac. By. Co. v. Chicago R. I. & P. Ry. Co.., supra. In that case the Union Pacific Railway Company had leased to another company for 999 years the joint use of its bridge across the Missouri river and of its terminal facilities of Omaha, together with about seven miles of its track, and it was contended that this lease was beyond the powers of the corporation, and void, because it was a diversion of the use of its railroad facilities from the public purposes for which the railroad cor- poration held them. The contract was, however, sustained, because it appeared that the use leased was a surplus use remaining after the Union Pacific Eailway Company had retained for itself sufiicient facil- ities to perform all its public functions and to discharge all its public duties. This court held, after careful consideration, and its decision was subsequently affirmed by the supreme court {Union Pac. Ry. Co. V. Chicago R. I. & P. Ry. Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265), that, if a corporation necessarily acquires for the conduct of its corporate business facilities whose entire capacity is not needed for its corporate use, it is not required to hold them in idleness, but it has the power, and it is its duty, alike to its stockholders and the public, to lease or otherwise apply the surplus use for their benefit. In State V. City of Eau Claire, 40 Wis. 533, and Green Bay & M. Canal Co. N.Kaukauna Water-Potver Co., 70 Wis. 635, 35 N. W. 529, 36 N. W. 828, the supreme court of Wisconsin held that, where a city had legis- lative authority to erect a dam for the purpose of waterworks for the city, it might lawfully lease for private purposes any excess of water not required for its waterworks. This is a just and reasonable rule. It is a rule inconsistent with no principal of law or of equity, and in accord with that common sense and common business practice which recognize as a public good the growth of two blades of grass where but one grew before, and the conversion of waste to use. The case in hand falls far within the rule. By the contract of September, 1898, the city renounced no trust that had been imposed upon it. It disabled itself from the dischai'ge of no duty. It in no way impaired the usefulness of the water or of the water system of the city for the public purposes for which it was constructed and maintained. On the other hand, that contract expressly provided that the water diverted by the grantees under it should be returned to the water system of tlie city unimpaired, without pollution or diminution of its flow, and that the grantees should do nothing under it which should interfere in any way with the success- ful operation of the waterworks of the city. Every use of those water- works and of the water requisite to the discharge of the trust under which they were held for the usual municipal purposes was retained by the city unimpaired, while the idle power therein which was running to waste was wisely utilized, not for private use, but for the public pur- pose of enlarging the waterworks of the city, of increasing its supply of water,, of procuring conduits and poles to carry its wires, and of obtaining electric light and power for its public buildings and its streets. The ordinance and the contract, therefore, were not void on the ground BIDDEFORD V. YATES. 467 that the water system and the water were held by the city in trust to extinguish fires, to distribute to its inhabitants for domestic uses, and for other municipal purposes, and on the ground that the municipality had no power to divert them to generate electricity' for private use, because every use of the water and of the waterworks for which they were held in trust was expressly retained by the city unimpaired, because the grant in the ordinance was made for public purposes, and not for private use, and because that grant wisely utilized an idle water power for the benefit of the city and its inhabitants, without impairing the uses for which the water system was constructed and maintained. BIDDEFORD v. YATES. 1908. 104 Me. 506. Spear, J. This is an action of trespass involving the validity of a lease of the plaintiff to the defendant. There is no material dispute upon the facts. The locus in quo is the opera house, so called, em- bracing the hall in the city building and used for the purpose of giving plays, operas, etc., together with all the rooms and appurtenances be- longing to and connected with the hall. On May 24, 1904, the plain- tiff was the owner of the hall and appurtenances. On the same day the cit}^ council by its committee on public property made and delivered to the defendant an instrument, purporting to be a lease of the hall, expiring June first, 1907. On February 20, 1907, another city council by the same committee made a second instrument purporting to be a lease of the same hall to take effect, in futuro, at the expiration of the first lease, to wit: June 1, 1907, for a term of three years from the latter date. Between February 20, 1907, the date of the second lease, and June first, 1907, when it was to take effect, the term of office of the city officials, under whom this lease was made, had expired, and on the third Monday of March, a new city government had been inaugurated. On the 10th day of June, the city council passed the following order : "Ordered, that the city solicitor be, and hereby is, authorized to ob- tain possession of the opera house and to adopt any proceedings that he may deem necessary therefor, including the institution and prose- cution of any action at law or equity." On the 23rd day of August, 1907, the city solicitor, whose official capacity is admitted, took physical possession of the leased premises without the knowledge or consent of the lessee, for the express purpose of excluding him therefrom, and notified the defendant of his assump- tion of possession and the purpose thereof and to abstain from any interference therewith. On the 24th day of August, Yates, the lessee, demanded of tlie city solicitor permission to enter, without being ob- liged to break in, claiming a right of occupancy under the instrument 468 BIDDEFORD V. YATES. purporting to be a lease elated Feb. 20, 1907. Being refused admis- sion, he forcibly entered, and took possession of the hall. This was the only public hall owned by the city of Biddeford from May 1, 1904, to the date of the plaintiff's writ. The charter of the city of Biddeford contains the following clause : " The city council shall have the care and superintendence of city buildings and the cus- tody and management of all such, property, with power to let or sell what may be legally let or sold." Under the city charter admitted to have been duly accepted, authorizing the establishment of by-laws and ordinances for the government of the city, was promulgated in 1887 the following ordinance : "Chapter 15, City Building. Sec. 1. The committee on public property shall have the care and custody of such building and its ap- purtenances, and all the alterations and repairs thereof. Sec. 2. The said committee are authorized to lease any part of said building not already under lease or appropriated to any of the branches of the city government for any period not exceeding the term of three years, and upon such term and conditions as they may deem expedient, subject, however, to the approval of the maj'or and aldermen." During the period covering both the first and the second alleged lease, the following joint rule was passed both by the city council of 1904 and that of 1907: "Rule 1. At the commencement of the municipal year the following joint standing committees shall be appointed by the mayor unless otherwise ordered by the respective boards, namely : Committee on public property ... to consist of the mayor, one alder- man and three members of the common council." A committee thus appointed negotiated the terms and executed the leases above referred to, both of which were approved by the mayor and a majority of the aldermen of the city. At the time the above leases were executed and delivered to Yates, that part of the city building known as the opera house was not appropriated to the use of any of the branches of the city government nor leased to any other person. The defendant ful- filled all the stipulations and conditions contained in the first lease. He had also complied with all the requirements of the second lease so far forth as he could, the city having refused to accept payment of rent and having notified the defendant that it would uot in the future accept rent. In addition to the admitted facts, the plaintiff claims that the second lease was made to usurp the powers of the administration then about to be elected and was given for a grossly inadequate consideration, and was thereby fraudulent. As the evidence does not sustain the al- legation of fraud, the political aspect of the case disappears and we feel authorized to consider it only upon the admitted facts. These in our opinion involve simply a question of power on the part of the city government. 1st. Could the city council itself authorize a lease of this property? 2nd. If so, could it delegate its powers to a committee to effectuate its purpose? BIDDEFORD V. YATES. 469 3rd. If yes, could the city council execute and deliver a lease under one city government to take effect, iu future, under another? Plaintiff admits the authority of the city government to lease the opera house, if of that species of city property that " may be legally let." But the city claims that the property covered by the second lease was " already under lease" and therefore within the exception of the ordinance, ch. 15, sec. 2. We think this position untenable. The second lease did not take effect until after the expiration of the term of the first one, and therefore cannot be said, in the sense in which the ordinance should be construed, to cover property, " already under lease." The interpretation of this phrase as claimed hy the plaintiff would prevent the city from renewing a lease even a day before it ex- pired. Such construction is contrary to all business methods and should not be established unless the language of the ordinance ex- pressly requires it. The phraseology does not require it, but rather its usual and ordinary meaning, the one naturally suggested is, that the city should not execute two leases covering the same property for the same period of time. If the ordinance was intended to mean any more than this, it could easily have been made to say so, and if the con- struction claimed by the plaintiff had been in the mind of the legisla- ture, it would have said so. It would never have left so important and unusual a provision, if intended to mean what the plaintiff claims, to be established by the uncertain interpretation permissible by the lan- guage employed. Again the plaintiff contends that the premises let were public prop- art}', and could be rented only for public purposes, ThonuUke v. Cam- den, 82 ]\Iaiue, 39, Goss v. Greenleaf, 98 Maine, 436, and could be used for private purposes when not needed for public use, Reynolds v. Waterville, 92 Maine, dissenting opinion, page 317, and cases cited, and that under the leases in question the public use was made subser- vient to the private use. The agreed statement does not furnish any evidence of this coi]tention, and so far as it goes, tends to show the reverse, it being admitted that the part of the city building known as the opera house, was not appropriated to the use of the city, and was reserved for memorial day, for the graduation exercises of the high school and necessary rehearsals therefor. The lessee was also re- quired to let the hall, when not otherwise engaged in good faitli, on the payment of running expenses for any public purpose upon applica- tion by the mayor, to any political body in the city at the request of the chairman of respective city committees, and to any established church in the city one day in each year to each such church. It appears that the opera house was subject to all these public uses free from any charge except the running expenses. These would have to be paid by some one, whether the city or the lessee was in control of the hall. Our conclusion is that under section 4 of the charter which provides that the city council shall have "power to let or sell what may be legally let or sold," the first question should be answered in the atfirma- 470 BIDDEFORD V. YATES. tive. "We need not look beyond the city charter for authority to exer- cise this power on the part of the city as the charter is an act of the legislature and the section under consideration \'iolates no provision of the constitution. "Whether the city government could delegate authority to a committee to let city property, depends entirely upon whether the delegation of sucli authority invested the committee with judicial or ministerial powers. "Functions which are purely executive, administrative or ministerial may be delegated to a committee. It is only such functions as are governmental, legislative or discretionary which cannot be dele- gated." A. & E. Encyc. of Law, Vol. 20, page 1218. These duties may be simplified by classing them under the head of ministerial and judicial functions as the act of every public official is either ministerial or judicial. People v. Jerome, 73 N. Y. Supp. 306. A purely minis- terial duty is one as to which nothing is left to discretion. Judicial acts involve the exercise of discretionary power or judgment Judicial acts are not confined to the jurisdiction of judges. No question is raised as to the authority of the city council to appoint a committee on public property, and none could be raised, provided they invested the committee with ministerial powers onW. Hence the issue here presented is: Did the ordinances, under which the committee acted, confer upon it ministerial authority only, or did it go further and clothe it with judicial powers? To determine this issue, let us analyze the ordinance in question and discover just what powers it did confer upon the committee on public property. The legislature in granting the charter invested the com- mittee with power to let "what may be legally let." The ordinance authorized the committee to lease any part of the building not already under lease or appropriated to the use of the city for any period not exceeding three years. It has already been determined that the lease embraced only what might be "legally let." So far the authority of the ordinance comports with that of the charter. The substance of the act conferred by the charter was the right to lease. The appointment of a committee by an ordinance was a proper and convenient way to carry out the details of the right conferred. Without any ordinance at all, the c\ty council could have let the hall. The charter so provided. The ordinance therefore was made, as all ordinances are, for the pur- pose of prescribing a permanent method of transacting the particular business involved. Therefore the language of the ordinance that the committee may lease ' ' upon such terms and conditions as they m'ay deem expedient" involves simply those ministerial acts necessary to perform the act of leasing. In the li^ht of the context which determines that a lease may be made, what shall be let and the term of the lease, this clause seems to have been used for the purpose of authorizing the committee to negotiate the various details which might arise in connec- tion with the transaction involved. Those things which it would be im- possible for an ordinance to prescribe in detail were left to the action BIDDEFORD V. YATES. 471 of the committee. An illustration of this point is found in the present case where the specifications submitted by the lessee, prescribing various things which he stipulated to do, embrace three full pages, and from twenty to thirty different items. This interpretation seems to be fully borne out in Gillelt v. Logan County et al., G7 111. 256. In this case the Board of Supervisors of the county authorized three of their own number, who had been appointed for the purpose of employing counsel to defend the interest of the county, ' ' to use their discretion in employing such further agents or assistants as might, to them, seem expedient, for the purpose of de- fending the interest of the county . . . the committee being em- powered to contract with such agents or assistants." The court say: " The first ground relied on in support of the bill is, that the foregoing resolution was illegal; the Board of Supervisors had no right to dele- gate to a committee such power as was given by the resolution," and in answer to this contention hold, '' That the duties of a committee, al- though they might include the making of contracts, were merely min- isterial, which tliey might properly be appointed to perform as recog- nized in Cify of Alton v. Mulledy, 21 111. 76; McClaughry v. Hancock County^ 46 111. 356." In speaking of the impracticability of the Board of County Commissioners sitting in session to carry out all the details of a contract, which applies with equal force to the action of a city council in a similar case, the court further add : " The position taken by the appellant involves the absurd consequence that this Board of Supervisors, composed of nineteen members, should have been kept in constant session during the progress of tliis protracted investigation, in order that they might, from day to day, as required, make bar- gains, as a body, for each item of service and expense incurred. It was unnecessary ; they might act by a committee appointed, as in the present mode." The right of a city council to delegate its authority to a committee to perform acts which the council itself might legally do, was raised in Hitchcock v. Galveston, 96 U. S. 341, in which the court hold : " If the city council had lawful authority to contract the sidewalks, involved in it was the right to direct the mayor, and the chairman on streets and alleys, to make a contract on behalf of the cit}^ for doing the work. We spend no time in vindicating this proposition. It is true, the city council could not delegate all the power conferred upon it by the legis- lature, but like every other corporation, it could do its ministerial work by agents. Kothing more was done in this case." This case also clearly determines that when a city council is author- ized to make a contract, it can appoint a committee to negotiate the details. To the same effect is Han. & St. Jo. R. B. Co. v. Marion County, 36 INIo. 296, in which it was contended by the defendant that the county court was the only agent authorized by law to issue instru- ments in payment to subscribers for stock and that the instruments were not issued by the court, but by certain Justices appointed* by the 472 BIDDEFORD V. YATES. court, aud that their act was not binding on the defendant ; that is, that the county court could not delegate its authority to the persons named. But the appellate court held otherwise, saying: " When the legislature empowered the county court to subscribe stock to the railroad company, it also clothed it with the means which might be convenient for making its action effectual. The substantive act was the taking of the stock." To the same effect also is Collins v. Holyoke^ 146 Mass. 298, where the court say: "It is true as contended by the petitioner that the mayor and aldermen could not delegate the authority given them by the public statutes, Ch. 50, sec. 1, to lay and make common sewers. But no suggestion is made that the sewer was not legally laid, and it is only objected that it was ' built under the direction and supervision of a committee composed of four members of the common council and three aldermen.' But this was done by the order of the mayor and aldermen. The statute which gave them authority to make the sewers did not preclude them from employing agents to supervise and direct the work." Hence it appears from this opinion that the substance of the thing which could not be delegated was the laying out of the sewer, and not the details involved in its construction, some of which must necessarily have embraced the negotiating of contracts. The third objection raised by the plaintiff to the legality of the lease is based upon the fact that one city council made the lease to take effect, in futuro, under another. But it must be observed that, while the personnel may have been different, the city council under which the lease took effect was pre- cisely the same tribunal under the charter and the ordinances that ex- ecuted the lease. The plaintiff, however, contends that the fact of an election between the execution of the lease and the beginning of its term, involving a possible change in the personnel of the new city council, made the attempt to execute a lease, to thus take effect, an in- vasion of the prerogatives of the new board. But we are unable to discover any substantial reason in support of this contention. While the personnel of a city government may change, the tribunal itself is a continuous body. As was said in Collins v. Holyoke, supra: "The membership of the defendant board is not the same as when the assess- ment iu question was made. But while its members change from time to time, the Board itself as a, tribunal is continuously the same." See also Fairbanks v. Fitchbarg, 132 Mass. 42. While one city government composed of one set of individuals might, upon a given question, do precisely the reverse of another city government, composed of a differ- ent set of individuals, yet, what the individuals of different city govern- ments might do, can in no way affect the right of a tribunal as a city government to act upon any measure properly before it. What the in- dividuals may do, as a matter of opinion, is one thing, but what the tribunal, a perpetual body, is empowered to do as a matter of authority, is quite another thing. It appears to us that the logic of the plaintiff's contention tends to limit a city council to action with respect to such BIDDEFORD V. YATES. 473 matters only as are to go into effect under its own administration. Such limitation would segregate a municipal government from all other corporations and business institutions, in the methods employed for the transaction of business, and might it seems to us prove highly detri- mental. A municipal government represented by its city council should be regarded as a business institution with reference to those transactions or matters permitted by the terms of its charter. When not limited to a prescribed luethod it should be permitted to act with the same business foresis^ht that is accorded to other business institutions. A corporation or individual dealing in the letting of property might find it of the highest importance to make a lease today to take effect months or even years hence. They might find it equally detrimental to be limited in their power to thus anticipate the future. This idea is so apparent as a business proposition as to become self evident. We have seen that the city council itself was empowered to make the lease in question and could delegate authority to a committee to nego- tiate its terms. We are therefore of the opinion that a lease thus legally executed is not void from the fact that it is made by one city council to take effect, in futuro, under another. Judgment for the defendant. 474 MAESH V. FULTON COUNTY. >}^ ^ CHAPTEE V. \^ ^V^ LIABILITY. r%ibsJ /O^iiL^^ K Section 1. — Liahility on Contracts. A^' >y\ MAESH V. FULTON COUNTY. 1070. 10 Wallace (U. S.}, 676.1 Error to U. S. Circuit Court for Soutliern District of Illinois. ^Xf» ^ Suit on fifteen bonds , purporting to be the obligations of the /rs County of Fulton to the Central Jjivision of the Mississippi and '^ Wabash K. R. Co., or bearerT 'ihe Mississippi and Wabash R. R. j^ Co. was incorporated by the legislature of Illinois in February, 1853. ^^ At an election held in November, 1853, a majority of the voters of *^ Fulton County voted that the county- should subscribe $75,000 to the ^ capital stock of the aforesaid company, payable in the bonds of the county; such bonds not to be issued until certain conditions were ^ complied with. (The material portions of the Illinois statute author- /" izing county subscriptions are stated in the opinion of the court.) < In February, 1857, an act was passed by the legislature of Illinois ( amending the charter of the Mississippi and Wabash Company, by which the line of the railroad was divided into three divisions, desig- nated the Western, the Central, and the Eastern divisions, and each division was placed under the management'and control of a board of three commissioners, to be elected by the stockholders of the divi- sion, and to be invested with all the powers of the original board of directors of the company over the road in their division. In April, 1857, the stockholders within the Central Division elected commissioners of the division, who thenceforth, until December, 1868, exercised all the powers conferred by this amendatory act. On the books of the Central Division thus organized, the clerk of the County Court of Fulton County, acting as clerk of the board of supervisors of that county, made the subscription of $75,000 in the name of the county, and in September following issued to this division the fifteen bonds which are in suit in this cause. FThe bonds contain no recital s as to the statute under which they were issued, or as to the prior votes or proceedings of the County or \ts officers.] There were various acts of the board of supervisors of Fulton County done after the issue of these bonds, which tended to show 1 Statement abridjred. — Ed. cJUti-t- ■'A \ O W; - * — ' MARSH V. FULTOX COUNTY. 475 that the board recognized them aud considered the county bound fol them. Defendants pleaded the general issue, and judgment was rendered in their favor. 0. H. Brownhig and 0. C. Skinner^ for plaintiff in error, re- lied largely on the fact which they asserted, aud which they relied . on as not disproved, that the bonds were in the hands of innocent holders for value; and that whether regularly issued originally or not, they had been ratified by the county in so many different ways, so advisedly and so unequivocally, that irregularity could not now be set up. S. Cornifig Judd, contra. Mr. Justice Field delivered the opinion of the court. The questions presented for our consideration are, first, whether the bonds issued by the clerk of the County Court of Fulfon County to the Central Division of the Mississippi aud Wabash Kailroaa Company were, at the time of their issue, valid obligations of the County of Fulton; and, second, if not thus valid, whether they have become obligator}' upon the county by any subsequent ratification. Were they valid when issued? The answer depends upon the law of Illinois then in force. The clerk of the County Court possessed no general authority to bind the count3'= He was a mere ministerial officer of the board of supervisors ; aud that body was equally desti- tute of authority in this particular, except as the law of Illinois gave it. That law authorized au}' county of the State, and, of course, its supervisors, who exercised the powers of the county, to subscribe stock to any railroad company in a sum not exceeding oue hundred thousand dollars, and to pay for such subscription in its bonds, provided such subscription was previously sanctioned by a majority of the qualified voters of the county at an election called for the expression of their wishes on the subject, and it prohibited any subscription or the issue of any bonds for such subscription without such previous sanction. " No subscription shall be made or purchase bond issued by any coiinty," says the law, " unless a ma]ority~of the qualified voters of such county . . . shall vote for the "same." Aud the law further requires that the notices calling for the "election " shall specify the company in which stock is proposed to be i subscribed." j These provisions furnish the answer to the first question presented. The only subscr iption authorized by the voters of Fulton County was . that to the ^Mississippi aud Wabash Railroad Company, and one 1 to tiiL' PL'ttjfsbiirg h and Springfield Company. The Central Division \ of the Miss issippi ami Wabash Enilroad Company was a tliffereut ; corporation from the original comjiany. It has been so held by the Supreme Court of Illinois in a case involving the consideration of a portion of the bonds in suit and the remaining sixty thousand dollars of bonds of the original subscription. ■^i*- 476 MARSH V. FULTON COUNTY. mV t -Aj ^tA ^'a(- N The amendatory act of 1857 dividing the road into three divisions, and suT)jecting each division to the control and management of a different board, clothed with all the powers of the original board, so far as the division was concerned, w^orked a fundamental change in the character of the original corporation, and created three distinct corporations in its place. A subscription to a company whose charter provided for a continuous line of railroad of two hundred and thirty miles, across the entire State, was voted by the electors of Fulton County; not a subscription to a company whose line of road was less than sixty miles in extent, and which, disconnected from the other portions of the original line, would be of comparatively little value. But it is earnestly contended that the plaintiff was an innocent purchaser of the bonds without notice of their invalidity. If such were the fact we do not perceive how it could affect the liability of the County of Fulton. This is not a case where the party executing the instruments possessed a general capacity to contract, and where the instruments might for such reason be taken without special inquiry into their validity. It is a case where the power to contract never existed — • where the instruments might, with equal authority, have been issued by any other citizen of the county. It is a case, too, where the holder w as bound to look to the action of the officers of the county _and ascertain whether the law had been so far followed by theme s to justify the issue of the bonds. The authority to contract iinust exist before any protection as an innocent purchaser can be claimed by the holder. This is the law even as respects commercial paper, alleged to have been issued under a delegated authority, and is stated in the case of Floyd Acceptances.^ In speaking of notes and bills issued or accepted by an agent, acting under a general or special power, the court says: " In each case the person dealing with the agent, knowing that he acts only by virtue of a delegated power, must, at his peril, see that the paper on which he relies comes within the power under which the agent acts. And this applies to every person who takes the paper afterwards; for it is to be kept in mind that the_protection which commercial usage throws around neg otiable ,, ^ap-Si" - cannot be used to establish the authority by which it was originally issued." "* It is also contended that if the bonds in suit were issued without authority their issue was subsequently ratified, and various acts of the supervisors of the county are cited in support of the supposed ratification. These acts fall very far short of showing any attempted ratification even by the supervisors. But th.e answer to them all is that the power uf ratification did not lie with the supervisors. A ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. It operates upon the ftct ratified in the same manner as though the authority of the agent 1 7 Wallace. 676. TOWN OF COLOMA V. EAVES. 477 to do the act existed originally. It follows that a ratification can oul}' be made when the party ratifying possesses the power to per- form the act ratified. The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without the previous sanction of the qualified voters of the county. The supervisors in that particular were the mere agents of the county. They could not, therefore, ratify a subscription without a vote of the county, because they could not make a subscription in the first instance without such authorization. It would be absurd to say that they could, without such vote, by simple expressions of approval, or in some other indirect way, give validit}' to acts, when they were directly in terms prohibited by statute from doing those acts until after such vote was had. That would be equivalent to saying that an agent, not having the power to do a particular act for his prin- cipal, could give validity to such act by its indirect recognition.^ We do not mean to intimate that liabilities may not be incurred by counties independent of the statute. Undoubtedly the}^ may be. The obl igation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others" wTffiout authority, the law, independent of an}- statute, will compel restitution or compensation. But this is a very different thing from enforcing an obligation attempted to be created in one way, when the statute declares that it shall only be created in another and different way. We perceive no error in the record, and the judgment of the Circuit Court must, therefore, be Affirmed. - ,j J — ~ •^Jpw OF COLOMA V. EAVES. 1875. 92 U. S. 484. Error to the Circuit Court of the United States for the Northern District of Illinois. Assump sit brought by the plaintiff below to recover the amount due on the coupons attached to certain bonds, purporting to have been issued by the town of Coloma, through its proper officers, to the ^(^hicago and Rock River Railroad Company, in payment of a sub- -^ -scription of S50,000 by the town to said company. The form of the ^j\ bond is as follows : — H ^ '0 ^ United Statks of America. [81,000. "County of Whiteside, " State oflUinois, Toion of Coloma : — ♦' Know all men by these presents. That the township of Coloma, in the county of Whiteside, and State of Illinois, acknowledges itself to owe and be indebted to the Chicago and Rock River Railroad ^w/ V -i' Company, or bearer, in the sum of $1,000, lawful money of the United States; which sum the said town of Coloma promises to pay to the Chicago and Rock River Railroad Compan}^, or the bearer hereof, on the first day of July, 1881, at the office of the treasurer of the county of Whiteside aforesaid, in the State of Illinois, on the presentation of this bond, with interest thereon from the first day of January, 1872, at the rate of ten per centum per annum, payable annually at the office of the treasurer of the county of Whiteside aforesaid, ou the presentation and surrender of the annexed coupons. " [U. S. %b revenue-stamp.] " This bond is issued under and by virtue of a law of the State of Illinois entitled ' An Act to incorporate the Chicago and Rock River Railroad Company,' approved March 24, 1869, and in accordance mth^-ar-^vote of the electors of said township of Coloma, at ajreg_ular^ I election held July 28, 1869, in accordance with said law, and under a law of tne State of Illinois entitled ' An Act to fund and provide for the. paying of the railroad debts of counties, townships, cities, a nd tow ns,' in force April 16, 1869; and, when this bond is regis- teredjn.the State auditor's office of the State of Illinois, the princi- DalandL interest will be paid by the State treasurer, as provided by said last-mentioned law. " In witness whereof, the supervisor and town-clerk of said town have hereunto set their hands and seals this first day of January, A.D. 1872. ''(Signed) M. R. Adams, Siqoervisor. [seal.] "(Signed) J. D. Davis, Toivn-Clerk. [seal.]" Recovery was resisted by the town, mainly upon the alleged ground of a want of power in the officers of the town to issue the bonds, (because the legal voters of the town had not been n otified to vote upon the question of the town's making the subscription in question. On the trial of the case, judgment was rendered for the~plaintrfF for the amount of the coupons, and interest after they were due. C. M. Oshorn for plaintiff. J. Grant., contra. Mr. Justice Strong delivered the opinion of the court. It appears by the record that the plaintiff is a bona fide holder and owner of the coupons upon which the suit is founded, having obtained them before they w^ere due, and for a valuable consideration paid. ; The bonds to which the coupons were attached were given in pay- ment of a subscription of $50,000 to the capital stock of the Chicago and R^ock River Railroad Companj^, for which the town received in return certificates of five hundred shares, of $100 each, in the stock of the company. That stock the town retains, but it resists the pay- ment of the bonds, and of the coupons attached to them, that they were issued without lawful authority. alleging TOWN OF COLOMA V. EAVES. 479 Saying nothing at present of the dishonesty of such a defence while the consideration for which the bonds were given is retained, we come at once to the question, whether authority was shown for the stock subscription, and for the consequent issue of the bonds. At tiie outset, it is to be observed that the question is not between the town and its own agents: it is rather between the town and a person claiming through the action of its agents. The rights of the town as against its agents may be very different from its rights as against parties who have honestly dealt with its agents as such, on the faith of- their apparent authority. By an act of the legislature of Illinois, the Chicago and Eock River Railroad Company was incorporated with power to build and operate a railroad from Rock Falls on Rock River to Chicago, a distance of about one hundred and thirty miles. The tenth section of the act enacted, that, " to aid in the construction of said road, any incor- porated city, town, or township, organized under the township organ- ization laws of the State, along or near the route of said road, might subscribe to the capital slock of said company." That the town of Coloma was one of the municipal divisions empowered by this sec- tion to subscribe fully appears, and also that the railroad was built into the town before the bonds were issued. But it is upon the eleventh section of the act that the defendant relies. That section is as follows: — " No such subscription shall be made until the question has been submitted to the legal voters of said city, town, or township, in which the subscription is proposed to be made. And the clerk of such city, town, or township, is hereby required, upon presentation of a petition signed by at least ten citizens who are legal voters and tax-payers in such city, town, or township, stating the amount pro- posed to be subscribed, to ^ost, up^notices in three public places in each tow n oiJ:owu£hip ; which notices shall be posted not less than thirty days prior to holding ¥uch"'electioD, notifying the legal voters or^uch town^of township to meet at the usual places of holding glectionsTn such town or township, for the purpose of voting for or against such subscriptions. If it shall appear that a majority of all the legal voters of such city, town, or township, voting at such elec- tion, have voted ' for subscription,' it shall be the dnty of the^presi- dent of the board of trustees, or other executive officer of such town, and of the supervisor in townships, to subscribe to the capital stock TTf-'Said railroad company, in the name of such city, town, or town- ship, the amount so voted to be subscribed, and to receive from such company the proper certificates therefor. He^haU^also execute to said company, in the name of such city, town, or township, bonds bearing interest at ten per cent per annum, which bonds shall run foTaTtefm of not more than twenty years, and the interest on the Bame shall be made payable annually; and which said bonds shall be signed by such president or supervisor or other executive officer, and f (<_ d»..^^ DV St -'c*: ^XXj^,.^^- ',' •— > O^ 'stovfex. OL \S-< ;^^..».aA-H5' , ^' O L 480 TOWN OF COLOMA V. EAVES. be attested by the clerk of the city, town, or township, in whose name the bonds are issued." Sect. 12 provides, " It shall be the duty of the clerk of any such ! city, town, or township, in which a vote shall be given in favor of sub- jBcriptions, within ten days thereafter, to transmit to the county-clerk lof their counties a transcript or statement of the vote given, and the amount so voted to be subscribed, and the rate of interest to be paid." Most of these provisions are merely directory. But conceding, as we do, that the authority to make the subscription was, by the eleventh section of the act, made dependent upon the result of the submission of the question, whether the town would subscribe, to a popular vote of the township, and upon the approval of the subscrip- tion by a majority of the legal voters of the town voting at the elec- tion, a preliminary inquiry must be. How is it to be ascertained whether the directions have been followed? whether there has bctu any popular vote, or whether a majority of the legal voters present at the election did, in fact, vote in favor of a subscription? Is the ascertainment of these things to be before the subscription is made, and before the bonds are issued? or must it be after the bonds have been sold, and be renewed every time a claim is made for the pay- ment of a bond or a coupon? The latter appears to us inconsistent with any reasonable construction of the statute. Its avowed purpose was to aid the building of the railroad by placing in the hands of the railroad company the bonds of assenting municipalities. These bonds were intended for sale ; and it was rationally to be expected that they would be put upon distant markets. It must have been considered, that, the higher the price obtained for them, the more advantageous woul3~~it be for tEe~company, and for the cities and towns which gave the bonds in exchange for capital stock. Every thing that tended to depress the market-value was adverse to the ob lect the legislature had in view. It could not have been overlooked that their market-value would be disastrously affected if the distant purchasers were under obligation to inquire before their purchase, or whenever they demanded payment of principal or interest, w^hether ceFtain contingencies of fact had happened before the bonds were issued, — contingencies the Jiappening of which it would be almost impossible for them in many cases to ascertain with certainty. Im- posing such an obligation upon the purchasers would tend to defeat the primary purpose the legislature had in view; namely, aid in the construction of the road. Such an interpretation ought not to be given to the statute, if it can reasonably be avoided; and we think it may be avoided. At some time or other, it is to be ascertained whether the direc- tions of the act have been followed ; whether there was any popular vote; or whether a majority of the legal voters present at the election . did, in fact, vote in favor of the subscription. The duty of ascer- ..'.aM| Ltaining was plainly intended_ to be_ vested somewhere, and once fd* -x» TOWN OF COLOMA V. EAVES, 481 all; and the only persons spoken of who have any duties to peiform respecting the election, and action consequent upon it, are the towu- clerk and the supervisor or other executive officer of the city or town. It is a fair presumption, therefore, that the legislature intended that those officers, or one of them at least, should determine whether the requirements of the act prior to a subscription to the stock of a railroad company had been met. This presumption is strengthened by the provisions of the twelfth section, which make it the duty of the clerk to transmit to the county-clerk a transcript or statement, verified by his oath, of the vote given, with other particulars, in case a subscription has been voted. How is he to perform this duty if he is not to conduct the election, and to determine what the voters have decided? If, therefore, there could be any obligation resting on per- sons proposing to purchase the bonds purporting to be issued under such legislative authority, and in accordance with a popular vote, to inquire whether the provisions of the statute had been followed, or whether the conditions precedent to their lawful issue had been com- plied with, the inquiry must be addressed to the town-clerk or exec utive officer of the municipality, — to the very person whose duty it was to ascertain and decide what were the facts. The more thei statute is examined, the more evident does this become. The eleventh section (quoted above) declared, that if it should appear that a majority of the legal voters of the city, town, or township, voting, had voted "for subscription," the executive officer and clerk should Bubscribe and execute bonds. "If it should appear," said the act. Appear when? Why, plainly, before the subscription was made and the bonds were executed; not afterwards. Appear to whom? In regard to this, there can be no doubt. Manifestly not to a court, after the bonds have been put on the market and sold, and when payment is called for, but if it shall appear to the persons whose province it was made to ascertain what had been done preparatory to their own action, and whose duty it was to issue the bonds if the vote appeared to them to justify such action under the law. These per- sons were the supervisor and town-clerk. Their right to issue the bonds was made dependent upon the appearance to them of the performance of the conditions precedent. It certainly devolved upon some person or persons to decide this preliminary question; and there can be no doubt who was intended by the law to be the arbiter. 'Tn'^Uommissioiiers v. Nichols, 14 Ohio St. 260, it was said that " a statute, in providing that county bonds should not be delivered by the commissioners until a sufficient sum had been provided by stock- subscriptions, or otherwise, to complete a certain railroad, and impos- ing upon them the duty of dplivering the bonds when such provision had been made, without indicating any person or tribunal to deter- mine that fact, necessarily delegates that power to the commis- Bioners; and, if delivered improvidently, the bonds will not be invalidated." I y^'UsO ^^^i^^^ ■ uc- 482 TOWN OF COLOMA V. EAVES. w>^ 6^Vn».Ol In the present case, tbe^j3erson__or persons wbose_d^ was to determine whether the statutory requisites to a subscription and to^ an authorized issue of the bonds had been performed were those whose luty it was also to issue the bonds in the event of such penormance. The statute required the supervisor or other executive officer not only CO subscribe for the stock, but also, in conjunction vrith the clerk, to execute bonds to the railroad company in the name of the town jfor the amount of the subscription. The bonds were required to be Rigned by the supervisor or other executive officer, and to be attested >)y the clerk. They were so executed. The supervisor and the clerk signed thern; and they were registered in the office of the auditor of ihe State, in accordance with an act, requiring that, precedent to their registration, the supervisor must certify under oath to the auditor that all the preliminary conditions to their issue required Dy the law had been complied with. On each bond the auditor cer- tified the registry. It was only after this that they were issued. And the bonds themselves recite that they " are issued under and by virtue of the act incorporating the j-ailroad company," approved March 24, 1869, " and in accordance withithe vote of the electors of said town- ship of Coloma, at a regular election held July 28, 1869, in accord- ance with said law." After all this, it is not an open question, as between a boiia fide holder of the bonds and the township, whether all the prerequisites to their issue had been complied with. Apart from and beyond the reasonable presumption that the officers of the law, the township-officers, discharged their duty, the matter baa passed into judgment. The persons appointed to decide whether the necessary prerequisites to their issue had been completed have decided, and certified their decision. They have declared the con- tingency to have happened, on the occurrence of which the authority to issue the bonds was complete. Their recitals are such a decision; and beyond those a ho7ia. fide purchaser is not bound to look fcr evidence of the existence of things in pais. He is bound to know the law conferring upon the municipality power to give the bonds on the happening of a contingency; but whether that has happened or not is a question of fact, the decision of which is by the law confided to others, — to those most competent to decide it, — and which the purchaser is, in general, in no condition to decide for himself. This we understand to be the settled doctrine of this court. Indeed, some of our decisions have gone farther. In the leading case of K)iox v. Aspinwall^ 21 How. 544, the decision was rested upon two grounds. One of them was that the mere issue of the bonds, containing a recital that they were issued under and in pursuance of the legislative act, was a sufficient basis for an assump- tion by the purchaser that the conditions on which the county (in that case) was authorized to issue them had been complied with; and it was said that the purchaser was not bound to look farther for evidence of such compliance, though the recital did not affirm iU TOWN OF COLOMA V. EAVES. 483 This position was supported by reference to The Royal British Bank V. Torquand, 6 Ell. & Bl. 327, a case in the Exchequer Chamber, which fully sustains it, and the decision in which was concurred in by all the judges. This position taken in Knox v. Aspinwall has been more than once reaffirmed in this court. It was in Moran v. Miami Count//, 2 Black, 732; in Mercer County v. Hackett, 1 Wall. 83; in Supervisors v. Schenk, 5 id. 784; and in Mayor v. Muscatine, I id. 384. It has never been overruled ; and, whatever doubts may flave been suggested respecting its correctness to the full extent to which it has sometimes been announced, there should be no doubt of the entire correctness of the other rule asserted in Knox v. Aspinwall. That, we think, has been so firmly seated in reason and authority, that it cannot be shaken. What it is has been well stated in sect. 419 of Dillon on Mun ic. Corp . After a review of the decisions of this court^the author remarks, " If, upon a true construction of the legislative enactment conferring the authority (viz., to issue munici- pal bonds upon certain conditions), the corporation, or certain officers, or a given body or tribunal, are invested with power to decide whether the condition precedent has been complied with, then it may well be that their determination of a matter in pais, which they are authorized to decide, w"ll, in favor of the bondholder for value, bind the corporatica." This is a very cautious statement of the doctrine. It may be restated in a slightly ^afferent form. Where' legislative s,uthority has beer given tc a municipality, or to its officers, fjo subscribe for the stock of a railroad company, and to issue munici- 'oaX bonds ^.n payment, but only on some precedent condition, such as a popubi- vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the XT'inicipality were In.'ested ^ith power ''.o decide whether the condi- tion precedent has been complied with, tb^i^ recital that it has been, made m the bonds issued by them and iaeld by a bona fide purchaser, is conclusive of th*^ fact, and binding upon the m.unicipalit}'; for the recital is itself a decision of the fact by the appointed tribunal. Tn Bissell v. Jeffersonviile, 24 How. 287, it app-^^ared that the common council of the city wei'e authorized by the legislature to subscribe for stock in a railroad company; and to issue bonds for the subscription, on the petition of three-fourths of the legal voters of the city. The council adopted a resolution to subscribe, reciting in the preamble that more than three- fourths of the legil voters had petitioned for it, and authorized the mayor and city clerk to sign and deliver bonds for the sum subscribed. The bonds recited that they were issued by authority of the common council, and that three-fourths of the legal voters had petitioned for the same, as required by the charter. In a suit subsequently brought by an innocent holder for value to recover the amount of unpaid coupons for interest, it was held inadmissible for the defendants to show that three-fourths of the legal voters of the city had not signed the petition for the stock subscription. A \)xJL>^- (^^y 484 TOWN OF COLOMA V. EAVES. similar ruling was made in Van Hostrop v. Madison City, 1 "Wall, 291, and in Mercer County v. Hackett^ id. 83. The same principle has recently been asserted in this court after very gi-ave consideration, and it must be considered as settled. In St. Joseph's Toicnship v. Rogers, 16 Wall. 644, it is stated thus: — " Power to issue bonds to aid in the construction of a railroad is frequently conferred upon a municipality in a special manner, or subject to certain regulations, conditions, or qualifications; but if it appears by their recitals that the bonds were issued in conformity with these regulations, and pursuant to those conditions and quali- fications, proof that any or all of these recitals were incorrect will not constitute a defence for the corporation in a suit on the bonds or coupons, if it appears that it was the sole province of the municipal officers who executed' the bonds to decide whether or not there had been an antecedent compliance with the regulation condition, or qualification, which it is alleged was not fulfilled." There is nothing in the case of Marsh v^Fulton, 10 "VYall. 675, to which we have been referred, at all inconsistent with the rule thus asserted. In that case, there were no recitals in the bonds; and there was no decision that the conditions precedent to a subscription, or to the gift of authority to subscribe, had been performed. The question was, therefore, open. "What we have said disposes of the present case without the neces- sity of particular consideration of the matters urged in the argument of the defendant below. It was inadmissible to show what was attempted to be shown ; and, even if it had been admissible, the effort to assimilate the case to Marsh v. Fulton would fail. There the subscription was for the stock of a different corporation from that for which the people had voted : here it was not. J f^-yj\^ Judgment affirmed. \^ Mr. Justice Bradley delivered the following concurring opinion : — V'''^^'^\ V I dissent from the opinion of the court in this case, so far as it «>;w*^) may be construed to reaffirm the first point asserted in the case of Knox County v. Aspinivall ; to wit, that the mere execution of a bond by officers charged with the duty of ascertaining whether a condition precedent has been performed is conclusive proof of its . ^, performance. If, when the law requires a vote of tax-payers, before ^ t*v-t>**^j^^.eA^bond8 can be issued, the supervisor of a township, or the judge of jrJc^v'-' probate of a county, or other officer or magistrate, is the officer ^^^^ ■ " designated to ascertain whether such vote has been given, and is also JllM the proper officer to execute, and who does execute, the bonds, and ^ , w,»-^., if the bouds themselves contain a statement or recital that such vote wr^t^u^^ \ha8 been given, then the bona fide purchaser of the bonds need go ^ back no farther. He has a right to rely on the statement as a doter^ mination of the question. But a mere execution and issue of the bonds without such recital is not, in my judgment, conclusive. It HUMBOLDT TOWNSHIP V. LONG. 485' may be prima facie sufficient; but the contrary may be shown. This seems to me to be the true distinction to be taken on this sub- ject; and I do not think that the contrary has ever been decided by this court. There have been various dicta to the contrary ; Ijut the cases, when carefully examined, will be found to have had all the prerequisites necessary to sustain the bonds, according to my view of the case. This view was distinctly announced by this court in the case of Lynde v. The County of Witinebayo, 16 Wall. 13. In the case now under consideration, there is a auffi cien|-, recit^nl in the i bond to show that the proper election was held and the proper vote 1 ji-^-jv&^a^ gtren; and the bond was executed by the officers whose duty it waa \ fo ascertain these facts. On this ground, and this alone, I concur in the judgment of the court. '2lt^^.'. >-),<,^ Mr. Justice Miller, Mr. Justice Davis, and Mr. Justice Field, " dissented. MILLER, J., IN HUMBOLDT TOWNSHIP v. LONG. 1875. 92 U. S. 642, pp. 646-651. Mr. Justice Miller, with whom concurred Mr. Justice Davis and Mr. Justice Field, dissenting. We have had argued and submitted to us, during the present term, some ten or twelve cases involving the validity of bonds issued in aid of railroads by counties and towns in different States. They were reserved for decision until a late day in the term; and the opinions having been delivered in all of them within the last few- weeks, I have waited for what I have thought proper to say by way of dissent to some of them until the last of these judgments are announced, as they have been to-day. I understand these opini ons to hold, that, when the constitution of the State, or an act of its legislature, imperatively forbids these . ,. municipalities to issue bonds in aid of railroads or other similar I C --v^-«N- enterprises, all such bonds issued thereafter will be held void. But, if._there exists any authority whatever to issue such bonds, no re- strictions, limitations, or conditions imposed by the legislature in the exercise of that authority can be made effectual, if they be disre- garded by the officers of those corporations. That such is the necessary consequence of the decision just read, in the cases from the State of Kansas, is too obvious to need argu- ment or illustration. That State had enacted a general law on the subject of subscriptions by counties and towns to aid in the con- struction of railroads, in which it was declared that no bonds should be issued on which the interest required an annual levy of a tax beyond one per cent of the value of the taxable property of the municipality which issued them. , (jj-j-A.^ i^ r.. V 486 HUMBOLDT TOWNSHIP V. LONG. In the cases under consideration this provision of the statute was wholly disregarded. I am not sure that the relative amount of the vsjJC.\^ bonds, and of the taxable property of the towns, is given in these ^j^, ■ \^ cases with exactness; but I do know that in some of the cases tried ^ 1^ ij— - it. before uie last summer in Kansas it was shown that the first and only issue of such bonds exceeded in amount the entii-e value of the tax- able property of the town, as shown by the tax-list of the year pre- ^■'^^''*'-^ ceding the issue. v"**-*^* ' This court holds that such a showing is no defence to the bonds, notwithstanding the express prohibition of the legislature. It is therefore clear that, so long as this doctrine is upheld, it is not in the power of the legislature to authorize these corporations to issue bonds under any special circumstances, or with any limitation in the use of the power, which may not be disregarded with impunity. It may be the wisest policy to prevent the issue of such bonds alto- gether. But it is not for this court to dictate a policy for the States on that subject. The result of the decision is a most extraordinary one. It stands A*"'^'*^' alone in the construction of powers specifically granted, whether the .^rixXyS"*^ source of the power be a State constitution, an act of the legisla- . ff\ ture, a resolution of a corporate body, or a written authority given Yw-^ ' by ail individual. It establishes that of all the class of agencies, ^l^iw-<., public or private, whether acting as officers whose powers are created ^(^:^j,^,s.^ by statute or by other corporations or by individuals, and whether the subject-matter relates to duties imposed by the nation, or the State, or by private corporations, or by individuals, on this one class of agents, and in regard to the exercise of this one class of powers alone, must full, absolute, aud uncontrollable authority be conferred on them, or none. In reference to municipal bonds alone, the law is, that no authority to issue them can be given which is capable of any effectual condition or limitation as to its exercise. The power of taxation, which has repeatedly been stated by this court to be the most necessary of all legislative powers, and least capable of restriction, may by positive enactments be limited, ^f the constitution of a State should declare that no tax shall be levied exceeding a certain per cent of the value of the pro perty iaxed,^ffly statute imposing a larger rate would be void as to the excess^ I? the legislature should say that no municipal corporation should assess a tax beyond a certain per cent, the courts would not hesitate to pro- nounce a levy in excess of that rate void. But when the legislature undertakes to limit the power of creating a debt by these corporations, which will require a tax to pay it in excess of that rate of taxation, this court says there is no power to do this effectually. No such principle has ever been applied by this court, or by any other court, to a State, to the United States, to pri- vate corporations, or to individuals. I challenge the production of a case in which it has been so applied. HUMBOLDT TOWNSHIP V. LONG. 487 In the Floyd Acceptance Cases^ 7 Wall. 666, in which the Secre- tary of War had accepted time-drafts drawn on him by a contractor, which, being negotiable, came into the hands of bona fide purchasers before due, we held that they were void for want of authority to accept them. And this case has been cited by this court more than once without question. No one would think for a moment of holding that a power of attorney made by an iudividual cannot be so limited as to make any one dealing with the agent bound by the limitation, or that the agent's construction of his power bound the principal. Nor has it ever been contended that an otiicer of a private corpora- tion can, by exceeding his authority, when that authority is express, is open and notorious, bind the corporation which he professes to represent. The simplicity of the device by which this doctrine is upheld as toj^-^v».~-.-a-wir' municipal bonds is worthy the admiration of all who wish to profit! J il*-^*^ by the frauds of municipal ofiicers. t^l^rsA-^-O'Vr It is, that wherever a condition or limitation is imposed upon the Vvv-^.'vv^ ^ power of these officers in issuing bcinds, they are the sole and final judges of the extent of those powers. If they decide to issue them, the law presumes that the conditions on which their powers depended i existed, or that the limitation upon the exercise of the power has been complied with; and especially and particularly if they make a false recital of the fact on which the power depends in the paper they issue, thia false recital has the effect of creating a power which had no existence without it. This remarkable result is always defended on the ground that the paper is negotiable, and the purchaser is ignorant of the falsehood, '^^-''^~**=» But in the Floyd Acceptance Cases this court held, and it was ueces-^ Ck» /^^ ^ary to h old so there, that the inquir}^ into the authority by which '^^-J-'C^'Y^' i negotiable paper was i&sueJ was just the same as if it were not aiego- ^^— c ^ ' ■^ tiable, and that if no such authority existed. it.could nut be aided bj^ giving the p aper that form. In County Bond Cases it seems to be otherwise. In that case the court held that the pai'ty taking such paper was bound to know the law as it affected the authority of the officer who issued it. In County Bond Cases, while this principle of law is not expressly contradicted, it is held that the paper, though issued without authority of law, and in opposition to its express provisions, is still valid. There is no reason, in the nature of the condition on which the power depends in these cases, why any purchaser should not take notice of its existence before he buys. The bonds in each case were issued at one time, as one act, of one date, and in payment of one subscription. All this was a matter of record in the town where it was done. So, also, the valuation of all the property of the town for the taxa- tion of the year before the bonds were issued is of record both in thai 488 HUMBOLDT TOWNSHIP V. LONG, iTv.o>* t^ ^ > y town and in the office of the clerk of the county in which the town ^^ I is located. A pur chager had but to write to tJia_tUffiiisliip-derk '^ \ I or the county-clerk to kuow precisely the amount of_.the issue of, V^^^A^ '^1 bonds and the value of the taxable property within the township. jyjJ^/\,^ . I In the^ matter of a power depending on these facts, in any other » < class of cases, it would be held that, before buying these bonds, the purchaser must look to those matters on which their validity depended. They are all public, all open, all accessible, — the statute, the ordinance for their issue, the latest assessment-roll. But in favor of a purchaser of municipal bonds all this is to be disregarded, and a debt contracted without authority, and in violation of express statute, is to be collected out of the property of the helpless man who owns any in that district. I say helpless advisedly, because these are not his agents. They are the officers of the law, appointed or elected without his consent, acting contrary, perhaps, to his wishes. Surely if the acts of any class of officers should be valid only when done in conformity to law, it is those who manage the affairs of towns, counties, and villages, in creating debts which not they, but the property-owners, must pay. The original case on which this ruling is based is Knox County v. Aspi?iwaU, 21 How. 539. It has, I admit, been frequently cited and followed in this court since then, but the reasoning on which it was founded has never been examined or defended until now: it has simply been followed. The case of the Town of Coloma v. Eaoes^ 92 U. S. 484, is the first attempt to defend it on principle that has ever been made. How far it has been successful I will not undertake to say. Of one thing I feel very sure, that if the English judges who decided the case of The Roycd British Bank v. Tar^JMiMd, on the authority of which Knox Count)j v. AspiiiwaU was based, were here to-day, they would be filled with astonishment at this result of their decision. ^f ix^\ The bank in that case was not a corporation. It was a joint-stock L CJ^^'i company in the nature of a partnership. The action was against mA/^ "v-*^ \ ^jjg manager as such, and the question concerned his power to borrow w-*iii^dr^ monej'. This power depended in this particular case on a resolution of the company. The charter or deed of settlement gave the power, \\. and, when it was exercised, the court held that the lender was not '\) jD ^ bound to examine the records of the company to see if the resolution -^--^^^~^'t had been legally sufficient. t j\JUO^^ • That was a private partnership. Its papers and records were not open to public inspection. The manager and directors were not offi- cers of the law, whose powers were defined by statute, nor was the existence of the condition on which the power depended to be ascei'- tained by the inspection of public and official records made and kept by officers of the law for that very purpose. -^ »AV BANK OF TOLEDO V. TOKTER TOWNSHIP TRUSTEES. 489 In all these material circumstances that case differed widely from those now before us. It is easy to saj', and looks plausible when said, that if municipal corporations put bonds on the market, they must pay them when they become due. But it is another thing to say that when an officer created by the law exceeds the authority conferred upon him, and in open violation of law issues these bonds, the owner of property lying within the corporation must pay them, though he had no part whatever in their issue, and no power to prevent it. This latter is the true view of the matter. As the corporation could only exercise such power as the law coufeiTedy the is-'niT Tg of the bonds was not the act of the corporation. It is a false assumption to _Bay that the corporation put them on the market. If one of two innocent persons must suffer for the unauthorized! act of the township or county officers, it is clear that he who could, I before parting with his money, have easily ascertained that they 1 were unauthorized, should lose, rather than the property-holder, who i- _. *- ] might not know any thing of the matter, or, if he did, had no p ower (£?^ .^'i, to prevent the wrong. 'io-vOiVrvy' P^-'Sf^THERN BANK OF TOLEDO v. PORTER TOWNSHIP ^.^ W^-'^.^^n'-J-^ TRUSTEES. ^^^^^-->^^'" '^^^- no C7. 5. 608.x ^•^^ T^ROR to U. S. Circuit Court for Northern District of Ohio. Ver- dict below for defendants. r^^l^ This was an action upon bonds purporting to be iBsued by Porter ^j-*-^ Township in payment of a subscription to the stock of the Spring- field, Mount Vernon, and Pittsburgh R. R. Co. B}^ the charter of said '•'^^^companj', granted March 21st, 1850, power was given to the county ■^^^^^J^T-Sommissioners to subscribe for stock if authorized by vote of the ' • electors ; and, if the county commissioners should not be authorized c 4^ (by such a vote, then the township trustees were empowered to sub- -. K scribe if authorized by vote of the qualified voters of the township. '"'^ Up to March 25th, 1851, neither Delaw-are County, nor Porter V \i Township in Delaware County, had subscribed, or voted to subscribe J to the stock of the railroad company. ....f^-^ By an act passed March 25th, 1851, county commissioners of the f.;3,jw-- theveafter, having first given twent}^ days' previous notice; " further, that "■ if the_commissiuuers of any of the counties aforesaid shall iic^i!,^ be authorized by the vote as aforesaid to subscribe to the capital stock of said company on behalf of their respective countie s, then, and in that case, the question of subscription by to w nship tr ustees provided for in the same act incorporating said railroad company shall be submitted to the people of the respective townships, at a special election, to be called as provided for in the first section of this act " — such elections to be conducted in all respects in the same manner provided for in the charter of the company, except as modified by the sai4 act of March 25th, 1851. On the loth day of April, 1851, the commissioners of Delaware County, Ohio, passed an order submitting to the voters of that county, at a special election to be held on the 17th day of June thereafter, a proposition to subscribe the sum of $50,000 to the capital stock of the Springfield and Mansfield Railroad Company, a corporation created under the laws of that State, and whose name was subsequently changed to that of the Springfield, Mount Vernon and Pittsburgh Railroad Company. This proposition was approved by the electors, and subsequently, August 4th, 1851, the county commissioners made a subscription of the amount voted, payable in bonds of the county. • ••••••• After the vote in favor of a county subscription of $50,000, and two days before the formal subscription in its behalf by the county commissioners, that is, on the 2d day of August, 1851, the trustees of Porter Township, in Delaware County, passed an order submitting to the voters of that township, at a special election to be held on the 30th day of August thereafter, a proposition for a subscription of not exceeding §10,000 and not less than $8,000 to the capital stock of the same company, payable in township bonds, upon the condition that the road should be permanently located and established through that township. The proposition was approved by the voters, and subsequently, on May 6th, 1853, township bonds for the amount voted with interest coupons attached were issued. They were made payable to the railroad company or its assignees, and were in the customary form of negotiable municipal bonds. Each one recited that it was " issued in part payment of a subscription of one hundred and sixty shares of $50 each to the capital stock of the said Spring- field, Mount Vernon and Pittsburgh Railroad Compau}', made by the said township of Porter in pursuance qf^the provisions of the several acts of the general assembl}' of the State of Ohio and qf a..viiie_pl-the qualified electors of said township of Porter taken in pursuance thereof." In behalf of the plaintiff in erroi-, the present holder of the bonds, it is claimed that there was statutory authority for their issue, and BANK OF TOLEDO V. PORTER TOWNSHIP TRUSTEES. 491 that, apart from any question of such authority, the township 1^ estopped by their recitals, and by numerous payments of annual in- terest, from disputing its liabilit3\ E. TV. Kittre(l(/ej for plaintitf in error. W. M. Ramsey^ for defendant in error. Harlan, J. The general assembly of Ohio, it must be presumed, knew at the passage of the act of March 25th, 1851, what particular counties and townships had then made subscriptions to the stock of this railroad company. That act was passed with reference to the situation as it actually was. When, therefore, upon the basis of non-authorization of the commissioners to make a county subscription, it was provided, in the act of March 25th, 1851, that " then, and in that case" towh-^ ships might subscribe, it must have been intended that the authoritv" of any township, which had not fJtcn acted, to subscribi.' r-hould exist onfy wliei't', al'tcr the passnge of the_lattL'r act, a county subscription had "been negatived either by a vote of the people or by the refusal or f ailure of the commissioners w'ithin a reasona ble time to submit i the que^stion to a popular vote. If this ^ not so, then Porter Town" 1 '^ sBTp would have been authorized in its discretion to vote on a propo- sition to subscribe either at the annual election in April, 1851, or at any special election thereafter held, notwithstanding the county may have previously made a subscription. But such we cannot suppose to be a correct interpretation of the statute. Consequent!}', from and after March 25th, 1851, it was apparent from the terms of the act of that date that Porter Tow-nship had no legal authorit}' to make a subscription of stock, except in the contingency — which the town- ship could not control, but of which it and all others were bound to take notice — that the commissioners had not been authorized to sub- scribe for the county. So far from that contingency ever arising, the commissioners (before the township election was called) had been authorized by popular vote to subscribe, and they did in fact ^ . subscribe, the sum of §50,000. It cannot, therefore, be said that the ^^^*'^|^'''Y^ commissioners were not authorized by a vote of the county to subscribe tf-w/JCU atthe time Porter Township voted; consequently', the latter was! without legal authority to make a subscription. This conclusion is' satisfactory to our minds, and is, besides, sustained by the decision of the Supreme Court of Ohio in Hojrple v. Trustees of Brown Town- ship in Delaware County., 13 Ohio St. 311, reaffirmed in lioirple v. Hippie^ 33 Ohio St. 116. 1 i - It is, however, contended, that by the settled doctrines of this ' ' '^*'^-*-*^ court, the township is estopped by the recitals of the bonds in suit, f'^'^^^^TO^ to make its present defence. The bonds, upon their face, purport to A«-^ /JXa have been issued " in pursuance of the provisions of the several acts i of the general assembly of the State of Ohio, and of a vote of the A^^'^M'f qualified electors in said township of Porter, taken in Duisuance 492 BANK OF TOLEDO V. POKTER TOWNSHIP TKUSTEES. thereof." These recitals, counsel argue, import a compliance, in afl res£efits, with the law, and, therefore, the township will not be allowed, against a bona fide holder for value, to say that the circum- stances did not exist which authorized it to issue the bends. It is not to be denied that there are general expressions in some former opinions which, apart from their special facts, would seem to afford support to this proposition in the general terms in which it is pre- sented. But this court said in Cohens v. Vivginia^ 6 Wheat. 264, and again in Carroll v. Lessee of Carroll, 16 How. 275, 287, that it was " a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision." An examination of the cases, in which those general expressions are found, will show that the court has never intended to adjudge that mere recitals by the officers of a municipal corporation in bonds issued in aid of a railroad corporation precluded an inquiry, even where the rights of a bona fide holder were involved, as to the existence of legislative authority to issue them. A reference to a few of the adjudged cases will serve to illustrate the rule which has controlled the cases involving the validity of municipal bonds. In Commissloiiers of Knox Comity v. Asplnwall^ 21 How. 539, power was given to county commissioners to subscribe stock to be paid for by county bonds, in aid of a railroad corporation, the power to be exercised if the electors, at an election duly called, should approve the subscription. It was adjudged that as the power . existed, and since the statute committed to the board of commis- t^^-*^^ whether the subscription was approved by a majority of the electors, ^^^ the recital in bonds executed by those commissioners, that they were issued in pursuance of the statute giving the power, estopped the J county from alleging or proving, to the prejudice of a bona fide holder, that requisite notices of the election had not been given. In Bissell V. City of Jeffersonville, 24 How. 287, the court found that there was power to issue the bonds, and that after they were issued a>s/ \ and delivered to the railroad company it was too late, as against a bona fide holder, to call in question the determination of the facts, ^w which the law prescribed as the basis of the exercise of the power" l^ \f\ granted, and which the city authorities were authorized and required" r^^?jr> jto determine before bonds were issued. Probably the fullest statement of the settled doctrine of this court is found in Town of Coloma v. Eaves, 92 U. S. 484. In that case the authority to make the subscription was made, by the statute, to depend upon the result of the submission of the question to a popular vote, and its approval by a majority of the legal votes cast. But whether the statute in these particulars was complied with, was Vv U-'Xv-^ BANK OF TOLEDO V. PORTER TOWNSHIP TRUSTEES. 493 left to the decision of certain persons who held official relations with the municipality in whose behalf the proposed subscription was to be made. It was in reference to such a case that the court said: " When legislative authority has been given to a municipality, or to its officers, to subscribe to the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent con- dition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers^of tEe__mimTcrpality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been, made in the bonds issued by them and held by a //o/m jiJe pur- cEaseijjLs^conclusive of the fact and binding upon the municipality j^ for the recital is itself a decision of the fact by the appointed tribunal." This doctrine was reaffirmed in Buchanan v. Litclifield^ 102 U. S. 278, and in other cases, and we perceive no just ground to doubt its correctness, or to regard it as now open to question in this court. But we are of opinion that the rule as thus stated does not support the position which counsel for plaintiff in error take in the present kj^^x^.-^..^^ case. The adjudged cases, examined in the light of their special (j circumstances, show that the facts which aj municipal corporation, . ^i-Li-w Vvn^« issui n g bo nds iii aid of the construction of a railroad, was not per- ,i-^-oJCJ^ Oa mitted, against a bona jide holder, to question,- in face of a recital .'>V'--^ were invested with authority U) execute them, and which the statute! ,,u^ jw-a^ conferring the power made it their duty to ascertain and determinej (jv.c,^.X>"*-^ ■vct^s' SUTLIFF V. LAKE COUNTY COMMISSIONERS. 495 that it was without legislative authority to order the e'ection of August 30th, I80I, aud to issue the bonds in suit. The question of legislative \>>*^ * autliority in a municipal corporation to issue bonds in aid of a rail- road company cannot be concluded by mere recitals; but the power existing, the municipality may be estopped by recitals to prove irregularities in the exercise of that power; or, when the law pre- ' scribes conditions upon the exercise of the power granted, and com- mits to the otticers of such municipality the determination of the question whether those conditions have been performed, the corpora- tion will also be estopped by recitals which import such performance. , \ A The judgment is affirmed. ■' \ ~l^ HTri^^ "0^,^^ SUTLIFF V. LAKE COUNTY COMMISSIONERS. ■:^/PC ''df^^ 1893. 147 U. S. 230.1 A*^^^ This was an action brought in the Circuit Court of the United '^ States for the District of Colorado by a citizen of Connecticut against the county of Lake, a municipal corporation of Colorado, upon "^ t\ coupons for interest of six bonds for 80OO each, part of a series of ^ ^ - ' ' ' -^ ^ > ten bonds, issued by the county on July 1, 1881, payable to bearer in twenty years, and redeemable at the pleasure of the county after ten years, and containing this recital: V~ " This bond is one of a series of five thousand dollars, which the ^^AN ]3Qr^^.(;} Qf county commissioners of said county have issued for the ^^' purpose of constructing roads and bridges, l)y virtue of and in com- ■^T pliance with a vote of a majority of the qualified voters of said j^<»^ county, at an eject ion duly held on the 7th day of October, a. d. 1879, and under and by virtue of and in compliance with an act of the general assembly of the State of Colorado, entitled ' An act con- cerning counties, count}^ otlicers and county government, and repeal- ing laws on these subjects,' approved March 24, a. d. 1877, and it is hereby certified that all the provisions of said act have been'fully complied wlth"by the proper officers in the issuing of this bond." One defence was that the bonds were illegal and void, becfiTtg'e'theyK (\,^vs-t>->< increased the indebtedness of the county to an amount in excess ofr " the limit prescribed by certain provisions of the constitution andj statut es of Colorado, the substance of which is stated in the opinion. The Circuit Court gave judgment for the defendant; and the plaintiff took the case by writ of error to the Circuit Court of Appeals for the Eighth Circuit, before which the following facts were made to appear: At and before the issue and sale of said bonds, the county was in fact indebted to^aiTamount greater than that permitted by the limitation contained in the constitution aud statute of Colorado, 1 Statement abridged. — Ed. 496 SUTLIFF V. LAKE COUNTY COMMISSIONERS. above cited; and therefore, as a matter of fact, the issue of said series of bonds, and the issue of each one thereof created an indebted- ness on the part of the county in excess of the constitutional and statutory limitation applicable to said county at the date of the issue of said bonds. The plaintiff bought six of said series of bonds, paying full value therefor, relying upon the recitals in the bonds con- "^^ tained, and without making any examination into the facts that »-vO . 1 might appear upon the records of the county, and without any actual ti^-A'*-s>'e knowledge of the facts other than such knowledge with which he |^'^-*^ drder specifying the amount required and the object of the debt; and ^/A<^»-^ ^^^^ made it their duty to publish, and to cause to be entered on iJh'Ji / their records, open to the inspection of the public at all times, semi- ■^-^'^^^ i| annual statements, exhibiting in detail the debts, expenditures and ■>^. receipts of the county for the preceding six months, and striking the SUTLIFF V. LAKE COUNTY COMMISSIONEES. 497 balance so as to show the amouut of any deficit and the balance in the treasury. It is stated in the certificate upon which this case conies before us that at the time of the issue of the bonds in question the defendant county was in fact indebted beyond the constitutional and statutory limit, and the issue of each bond therefore created a debt in excess of that limit; and that the plaintiff bought the bonds, upon the faith of the recitals therein, and without making any examination into the facts appearing on the records of the count}'. Upon these facts, in the light of the previous decisions of this court, it is clear that the plaintiff, al though a, purchaser for value and before maturity of the bonds, was clinrgt'd with the duty of examin- TngHLhe record of indebtedness provided for in the statute of Colo- rado, in order to ascertain whether the bonds increased the indebted- ness of the county ■ beyond the constitutional limit; and that the ness oi tne county beyond the constitutional limit; and that the XrT/*-rO recitals in the bonds did not estop the county to prove by the records i ^ ^"""C* of the assessment and the indebtedness that the bonds were issued in \ r^ >-»<^ violation of the constitution. ' ,q_^.^ g_ In those cases in which this court has held a municipal corpora- tion to be estopped by recitals in its bonds to assert that they were-. , _Jyv. issued in excess of the limit imposed by the constitution or statutes ' ^^'-"v-v*' of the State, the statutes, as construed b}"^ the court, left it to the' officers issuing the bonds to determine whether the facts existed which .1 constituted the statutory or constitutional condition precedent, and V**^' ''■^— *>^ did not require those facts to be made a matter of public record. Marci/ V. Oswego, 92 U. S. 637; Hurnholdt v. Long, 92 U. S. 642; Dixon County \. Field, 111 U. S. 83; Lake County v. Graham, 130 U. S. 674, 682 ; Chaffee County v. Potter, 142 U. S. 355, 363. But if the statute expressly requires those facts to be made a matter of public record, open to the inspection of every one, there can be no implication that it was intended to leave that matter to be determined and concluded, contrary to the facts so recorded, by the officers charged with the duty of issuing the bonds. Accordingl}', in Dixon County v. Field, above cited, which arose under an article of the constitution of Nebraska, limiting the power of a county to issue bonds to ten per cent of the assessed valuation of the county, it was adjudged that a county issuing bonds, each reciting that it was one of a series of $87,000 issued under and by virtue of this article of the constitution and the statutes of Nebraska upon the subject, was not estopped to show by the assessed valuation on the books of public record of the county that the bonds were in excess of the constitutional limit; and Mr. Justice Matthews, deliv- ering the unanimous judgment of the court, fully stated the grounds of the decision, which sufficiently appear by the following extracts: " If the fact necessary to the existence of the authority was by law to be ascertained, not officially by the officers charged with the execution of the power, but by reference to some express and definite l^ .0 498 SUTLIFF V. LAKE COUNTY COMMISSIONERS. record of a public character, then the true meaning of the law would be that the authority to act at ail depended upon the actual objective existence of the requisite fact, as shown by the record, and not upon its ascertainment and determination by any one; and the consequence would necessarily follow, that all persons claiming under the exercise of such a power might be put to the proof of the fact, made a condition of its lawfulness, notwithstanding any recitals in the instrument." Ill U. S. 93. " In the present case there was no power at all conferred to issue bonds in excess of an amount equal to ten per cent upon the assessed valuation of the taxable property in the county. In determining the limit of power, there were necessarily two factors: the amount of the bonds to be issued, and the amount of the assessed value of the property for purposes of taxation. The amount of the bonds issued was known. It is stated in the recital itself. It was $87,000. The holder of each bond was apprised of that fact. The amount of the assessed value of the taxable property in the county is not stated; but, ex vi termini^ it was ascertainable in one way only, and that was by reference to the assessment itself, a public record equally accessible to all intending purchasers of bonds, as well as to the county officers. This being known, the ratio between the two amounts was fixed by an arithmetical calculation. No recital iuvolvijig the amount of the assessed taxable valuation of the property to be taxed ^''<' /for the payment of the bonds can take the place of the assessment ^ ^ , I itself, for it is the amount, as fixed by reference to that reco_rd^that *'^ ' \ Is made by the constitution the standard for measuring the -l imit of the municipal power. Nothing in the v,ay of inquiry, ascertainment >>**'^" Jor determination as to that fact is submitted to the county officers. They are bound, it is true, to learn from the assessment what the limit upon their authority is, as a necessary preliminary in the exer- cise of their functions, and the performance of their duty; but the information is for themselves alone. All the world besides must have it from the same source, and for themselves. The fact, as it is recorded in the assessment itself, is extrinsic, and proves itself by inspection, and concludes all determinations that contradict it." Ill U. S. 95. That decision and the grounds upon which it rests were approved and affirmed in Lake Counfy v. Graham and Chaffee County v. Potter, above cited, each of which arose under the article of the con- stitution of Colorado now in question, but under a different statute, which did not require the amount of indebtedness of the county to be stated on its records. In Lake County \. Graham, each bond showed on its face the whole amount of bonds issued, and the recorded valu- ation of property showed that amount to be in excess of the con- stitutional limit; and for this reason, as well as because the bonds contained no recital upon that point, the county was held not to be estopped to plead that limit. 130 U. S. %^-2, 683. In Chaffee \xA' ■ {-.- .^)^ Ovl^c.,... ... ,.j^<-^w &^^^ ^^ vT' ^- ■ ! ^-. cj-y^^. tA^ ryA^) GUNNISON COUNTY COMMISSIONERS V. ROLLINS. 409 County V. Potter, on the other hand, the bonds contained an express recital that the total amount of the issue did not exceed the constitu- tional limit, and did not show on their face the amount of the issue, and the county records showed only the valuation of property, so that, as observed by Mr. Justice Lamar in delivering judgment: " The purchaser might even know, indeed it may be admitted that he would be required to know, the assessed valuation of the taxable property of the county, and yet he could not ascertain by reference to one of the bonds and the assessment roll whether the county had exceeded its power, under the constitution, in the premises." 142 U. S. :63. The case at bar does not fall within Chaffee County v. Potter, and cannot be distinguished in principle from Dixon County v. Field or from Lake County v. Graham. The only difference worthy of notice is that in each of these cases the single fact required to be shown by the public record was the valuation of the property of the county, "Tvhereas here two facts are to be so shown, the valuation of the prop- erty, and the amount of the county debt. But, as both these facts are equall}' required by the statute to be entered on the public records of the count}', they are both facts of which all the world is bound to take notice, and as to which, therefore, the county cannot be con - cluded by any recitals in the bonds. Jt folTou's that the first question certified must he answered in thi affirmative, and the second in the negative. Ordered accordingly. v^^ \^r^- GUN^ON COUNTY COMMISSIONERS v. ROLLINS. 'g^^ Harlan, 1899. 173 U. S. 255. J.^ This action was brought by E. H. Rollins & Sons, a corporation of New Hampshire, to obtain a judgment against the Board of Commissioners of Gunnison County, Colorado, a municipal *\ corporation of that State, for the amount of certain coupons of bonds r^ issued by the defendant in 1882. At the close of the evidence the de- ^ fendant requested a peremptory instruction in its behalf. The Circuit Court charged the jury at some length, but concluded with a direction >^to find a verdict for the defendant, which was done, and a judgment /^ in its favor was entered. That judgment was reversed in the Circuit Court of Appeals, and the case is here upon writ of certiofuri. 49 t U. S. App. 399. -^ >' The answer of the county contained a general dental of all the allega- tions of the complaint, and in addition set out eleven aflirmative de- fences, which were chiefly based upon the alleged fact that the county, 1 Part of the opinion la omitted. — Ed. i 500 GUNNISON COUNTY COMMISSIONERS V. ROLLINS. • in issuing the bonds set fortli in the complaint, had attempted to incur an indebtedness not authorized by the constitution of Colorado or by the statute referred to in the bonds. ^ Thd bonds to which were attached the coupons in suit recite d that they were issued by the Board of County Commissioners "in ex- change at par for valid floating indebtedness of the county outstand ing prior to September 2, 1882, under and by virtue of and in full conformity with the provisions of an act of the General Assembly of the State of Colorado, entitled ' An act to enable the several coun- ties of the State to fund their floating indebtedness,' approved Feb- ruary 21, 1881; " that "all the requirements of law have been fully complied with by the proper otticers in the issuing of this bond ; " that the total amount of the issue did " not exceed the limit prescribed by the constitution of the State of Colorado ; " and that such issue had been authorized by a vote of a majority of the duly qualified electors^ of TneTount}', voting on the question at a general election duly held~in the county on the 7th day of November, 1882. "~ — Do such recitals estop the county from asserting against a bona fide holder for value that the bonds so issued created an indebtedness in excess of the limit prescribed by the constitution of Colorado? An answer to this question can be found in former decisions of this court. It is necessary to advert to those decisions, particularly those in which the court considered the effect of recitals importing compliance with constitutional provisions. In Buchanan v. Litchfield, 102 U. S. 278, 290, 292, which was a suit on interest coupons of municipal bonds, the defence was made that the bonds were issued in violation of that clause of the constitution of the State providing that " no county, city, township, school district or other municipal corporation shall be allowed to become indebted in any manner or for any purpose to an amount including existing in- debtedness in the aggregate exceeding five per centum on the value of the taxable property therein to be ascertained by the last assess- ment for state and county taxes previous to the incurring of such indebtedness." This court said : " As, therefore, neither the consti- tution nor the statute prescribed any rule or test by which persons contracting with municipal corporations should ascertain the extent of their ' existing indebtedness,' it would seem that if the bonds in question had contained recitals which, upon any fair construction, amounted to a representation upon the part of the constituted authorities ! of the city that the requirements of the constitution were met — that is, that the city's indebtedness, increased by the amount of the bonds 'in question, was within the constitutional limit — then the city, under ^ The Constitution contained a clause fixing a limit to county indebtedness. Tlie Btatute provided for a referendum vote of taxpayers on the issue of bonds. — Ed. GUNNISON COUNTY COMMISSIONERS V. ROLLINS. 501 the decisions of this court, might have been estopped from disputing the truth of such representations as against a honajide holder of its bonds. The case might then, perhaps, have been brought within the rule an- nounced by this court in Town of Goloma v. Eaves, 92 U. S. 484, in which case we said, and now repeat, that ' where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative en- actment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been, made on the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality ; for the recital is itself a decision of the fact by the ap- pointed tribunal' So, in the more recent case of Orleans v. Pratt, 99 U. S. 676, it was said that ' where the bonds on their face recite the cir- cumstances which bring them within the power, the corporation is es- topped to deny the truth of the recital.' " Again : " A recital that the I bonds were issued under the authority of the statute and in pursuance of the city ordinance, did not necessarily import a compliance with the constitution. Had the bonds made the additional recital that they were issued in accordance with the constitution, or had the ordinance stated, in any form, that the proposed indebtedness was within the constitutional limit, or had the statute restricted the exercise of the authority therein conferred to those municipal corporations whose in- debtedness did not, at the time, exceed the constitutional limit, there would have been ground for holding that the city could not, as against the plaintiff, dispute the fair inference to be drawn from such recital or statement as to the extent of its existing indebtedness." In Northern Bank of Toledo v. Porter ToirnsJiip, 110 U. S. 608, 616, 619, which was an action on municipal bonds, and involved a question respecting the conclusiveness as between the municipality and a bona fide holder for value of recitals in the bonds that they had been issued in conformity to law, the court referred to the above rule established in Toivn of Coloma v. Eaves, and said : " We are of opinion that the rule as thus stated does not support the position which counsel for plaintiff in error take in the present case. The adjudged cases, ex- amined in the light of their special circumstances, show that the facts which a municipal corporation, issuing bonds in aid of the construction of a railroad, was not permitted, against a bona fide holder, to ques- tion, in face of a recital in the bonds of their existence, were those connected with or growing 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 conferring the power made it their duty to ascer- tain and determine before the bonds were issued ; not merely for them- selves, as the ground of their own action, but, equally, as authentic and final evidence of their existence, for the information and action of 502 GUNNISON COUNTY COMMISSIONERS V. ROLLINS. all others dealing with them in reference to it. . . . The question of legislative authority in a municipal corporation to issue bonds in aid of a railroad company cannot be concluded by mere recitals ; but the power existing, the municipality may be estopped by recitals to prove irregularities in the exercise of that power; or, when the law pre- scribes conditions upon the exercise of the power granted, and com- mits to the officers of sucli municipality the determination of the question whether those conditions have been performed, the corpora- tion will also be estopped by recitals wliich import such performance." A leading case on this subject is Dixon Comity v. Field, 111 U. S- 83, 92-94, which involved the validity of bonds issued in the name of Dixon County, Nebraska, the constitution of which State prescribed conditions upon which donations could be made to a railroad or other work of internal improvement by cities, towns, precincts, municipali- ties or other subdivisions of the State, and imposed limitations upon the amount thereof and upon the mode of creating municipal debts of that kind. The principal question was as to the conclusiveness of certain ^fi recitals in the bonds sued on in that case. This court said : "The estoppel does not arise, except upon matters of fact which the cor- porate officers had authority by law to determine and to certify. It is ■j^^ 'not necessary, it is true, that the I'ecital should enumerate each partic- ^^ v ular fact essential to the existence of the obligation. A general state- \/^^^ ment that the bonds have been issued in conformity with the law wiU. suffice, so as to embrace every fact which the officers making the statement are authorized to determine and certify. A determination and statement as to the whole series, where more than one is involved, is a determination and certificate as to each essential particular. But it still remains that there must be authority vested in the officers, by law, as to each necessary fact, whether enumerated or non-enumerated, ''^fuM'-^^'^j to ascertain and determine its existence, and to guarantee to those lt<-^ • ' dealins; with them the truth and conclusiveness of their admissions. In such a case the meaning of the law grantmg power to issue bonds is, that they may be issued, not upon the existence of certain facts, to be ascertained and determined whenever disputed, but upon the ascer- tainment and determination of their existence, by the officers or body designated by law to issue the bonds upon such a contingency. This becomes very plain when we suppose the case of such a power granted , to issue bonds, upon the existence of a state of facts to be ascertained and determined by some persons or tribunal other than those author- ized to issue the bonds. In that case, it would not be contended that _^ a recital of the facts in the instrument itself, contrary to the finding of those charged by law with that duty, would have any legal effect. So, ' if the fact necessary to the existence of the authority was by law to be i ascertained, not officially by the officers charged with the execution of ; the power, but by reference to some express and definite record of a public character, then the true meaning of the law would be, that the authority to act at all depended upon the actual objective existence of A; GUNNISOX COUNTY COMMISSIONERS V. ROLLINS. 503 the requisite fact, as shown by the record, and not upon its ascertain- ment and determination by any one ; and the consequence would necessarily follow, that all persons claiming under the exercise of such a power might be put to proof of the fact, made a condition of its lawfulness, notwithstanding any recitals in that instrument This principle is the essence of the rule declared upon this point, by this court, in the well-considered words of Mr. Justice Strong, in Coloma V, Eaves, 92 U. S. 484, where he states (p. 491) that it is, 'where it may be gathered from the legislative enactment that the oflicers of the municipality were invested with the power to decide whether the con- dition precedent has been complied with,' that ' their recital that it has been, made in the bonds issued by them and held by a bona fide pur- chaser, is conclusive of the fact, and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal.' The converse is embraced in the proposition and is equally true, ^_lf the officers authorized to issue bonds, upon a condition, are not the appointed tribunals to decide the fact, which constitutes the condition, " faieiFrec jtal will not be accepted as a substitute for proof. In other words, where the validity of the bonds depends upon an estoppel, claimed to arise upon the recitals of the instrument, the question being as to the existence of power to issue them, it is necessary to establish that the officers executing the bonds had lawful authority to make the. recitals "and to make them conclusive. The very ground of the estop- pel is that the recitals are the official statements of those to whom the law refers the public for authentic and final information on the subject." In Lake County v. Grahmn, 130 U. S. 674, C80, G83-684, the ques- tion was as to the validity of certain bonds issued by Lake County, Colorado, under the very statute of that State referred to in the bonds the coupons of which are here in suit, namely, the above act of Febru- ary 21, 1881, authorizing the several counties of the State to fund their floating indebtedness. It was recited in each of the bonds sued on in that case that they were issued under and by virtue of and in full compliance with that act, and that "all the provisions and requirements of said act have been fully complied with by the proper officers in the ^ X*4^^ issuing of this bond." No one of the bonds, let it be observed, con- tained any recital that it was issued in conformity to the provisions of the state constitution. This court said: "Nothing is better settled than this rule — that the purchaser of bonds, such as these, is held to know the constitutional provisions and the statutory restrictions bear- ing on the question of the authority to issue them ; also the recitals of the bonds he buys; while, on the other hand, if he act in good faith and pay value, he is entitled to the protection of such recitals of facts as the bonds may contain. In this case the constitution charges each purchaser with knowledge of the fact that, as to all counties whose as- sessed valuation equals one million of dollars, there is a maximum limit beyond which those counties can incur no further indebtedness under 504 GUNNISON COUNTY COMMISSIONERS V. EOLLINS. any possible conditions, proviclecl, that in calculating that limit, debts contracted before tlie adoption of the constitution are not to be counted. The statute, on the other hand, charges the purchaser with knowledge of the fact that the county commissioners were to issue bonds, at par, in exchange for such warrants of the county as were themselves issued prior to the date of the first publication of the notice provided for ; that the only limitation on the issue of bonds in the statute was, that the bonds should not exceed in amount the sum of the county indebted- ness on the day of notice aforesaid ; that while the commissioners were empowered to determine the amount of such indebtedness, yet the statute does not refer that board, for the elements of its computation, to the constitution or to the standards prescribed by the constitution, but leaves it open to tliera, without departing from any direction of the statute, to adopt solely the basis of the county warrants. The recitals of the bonds were merely to the effect that the issue was ' under, and by virtue of, and in full compliance with,' the statute; 'that all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond ; ' and that the issu- ing was ' authorized by a vote of a majority of the duly qualified electors,' etc. ; no express reference being made to the constitution, nor any statement made that the constitutional requirements had been observed. There is, therefore, no estoppel as to the constitutional question, because there is no recital in regard to it. Carroll County v. ^fA^. -^Smith, 111 U. S. 556." In disposing of the contention that, under '^ — — ■ the doctrines of certain adjudged cases, the county was estopped to deny that the bonds were issued in conformity to the constitution, the court said : "The question here is distinguishable from that in the cases relied on by counsel for the defendant in error. In this case the standard of validity is created by the constitution. In that standard two factors are to be considered ; one the amount of assessed value, LyrAf>o<^^ . and the other the ratio between that assessed value and the debt pro- ,^ n^^S-^y posed. These being exactions of the constitution itself, it is not within ■i^v~ I the power of a legislature to dispense with them, either directly or in- 5 ' ''^.'-M directly, by the creation of a ministerial commission whose finding I shall be taken in lieu of the facts. In the case of Sherman County v. Simons, 109 U. S. 735, and others like it, the question was one of estoppel as against an exaction imposed by the legislature ; and the holding was, that the legislature, being the source of exaction, had created a board authorized to determine whether its action had been complied with, and that its finding was conclusive to a bona fide pur- chaser. So also in Oregon v. Jennings, 119 U. S. 74, the condition violated was not one imposed by the constitution, but one fixed by the subscription contract of the people." This brings us in our reference to the authorities to the important case of Chaffee County v. Potter, 142 U. S. 355, 363, 364, 366. That was an action upon coupons of bonds issued by Chaffee County, Col- 1 GUNNISON COUNTY COMMISSIONERS V. ROLLINS. 505 orado, under the act of February 21, 1881, under which the bonds here in suit were issued. The bonds and coupons were in the same form and contained the same recitals as the above bonds issued by Gunnison County, and were of like date. The defence in part in the Chaffee County case was that the bonds, and each of them, were issued in violation of the constitution of the State. After referring to the decision in Lake County v. Graham (the bonds in which did not con- tain any express recitals as to the constitutional limit of indebtedness), and stating that it was based largely on the ruling in Dixon County v. Field, this court said: "To the views expressed in that case we still adhere ; and the only question for us now to consider, therefore, is : Do the additional recitals in these bonds, above set out, and in the absence from their face of anything showing the total number issued of each series, and the total amount in all, estop the county from pleading the constitutional limitation ? In our opinion these two fea- tures are of vital importance in distinguishing this case from Lal.e County \. Graham and Dixon County v. Field, and are sufficient to oper- ate as an estoppel against the county. Of course, the purchaser of bondsi ^ ( in open market was bound to take notice of the constitutional limitation' on the county with respect to indebtedness which it might incur. But* when, upon the face of the bonds, there was any express recital that the limitation had not been passed, and the bonds themselves did nqt_\ >^«'Ol«- sEow that it had, he was bound to look no further. An examination \ of any particular bond would not disclose, as it would in the Lake County case, and in Dixon County v. Field, that, as a matter of fact, the constitutional limitation had been exceeded, in the issue of the series of bonds. The purchaser might even know, indeed it may be 1 admitted that he would be required to know, the assessed valuation of the taxable property of the county, and yet he could not ascertain by reference to one of the bonds and the assessment roll whether the county had exceeded its power, under the constitution, in the premises. True, if a purchaser had seen the whole issue of each series of bonds and then compared it with the assessment roll, he might have been able to discover whether the issue exceeded the amount of indebted- ness limited by the constitution. But that is not the test to apply to a transaction of this nature. It is not supposed that any one person would purchase all of the bonds at one time, as that is not the usual pi,*^,^. course of business of this kind. The test js — "Wh at doe s each indi- j <.rw~ei •^'^ vidual bond disclose? If the face of one of the bonds had disclosed J '■'' ^^ ■^''- tliaf, as a matter of fact, the recital in it, with respect to the constitu- tional limitation, was false, of course the county would not be bound by that recital, and would not be estopped from pleading the in- validity of the bonds in this particular. Such was the case in Lake County V. Graham and Dixon County v. Fidel. But that is not this case. Here, by virtue of the statute under which the bonds were issued, the county commissioners zcere to determine the amount to le Uu-. 506 GUNNISON COUNTY COMMISSIONERS V. ROLLINS. issued, which was not to exceed the total amount of the indebted- ness at the date of the first publication of the notice requesting the holders of county warrants to exchange their warrants for bonds, .3 at par. The statute, in terras, gave to the co mmi ssioners the deter- mination of a fact, tlial;~isV whether the issue of bonds was in accord- ance with the constitution of the State and the statute under wliicli they were issued, and required them to spread a certiQcate of that { determination upon the records of the county. The recital in the ' bond to the effect that such determination has been made, and that the constitutional limitation had not been exceeded in the issue of the bonds, taken in connection tvith the fact that the bonds themselves did not show such recital to be untrue, under the law, estops the county from saying that it is untrue. Toivn of Coloma v. Eaves, 92 U. S. 484 ; Tow7i of Venice v. 2Iurdock,92 U. S. 494; Marcy v. Township of Oswego, 92 U. S. 637 ; Wilson v. Salamanca, 99 U. S. 499 ; Buchanan v. Litch- field, 102 U. S. 278; Northern Bank v. Porter Township, 110 U. S. G08.'' After I'eferring to what was said in Town of Coloma v. Eaves and Buchanan v. Litchfield, the court thus concludes its opinion : "We think this case comes fairly within the principles of those just cited ; and that it is not governed by Dixon Cminty v. Field and Lake County V. Graham, but is distinguishable from them in the essential particulars above noted." It is contended that the present case is controlled by Sutliffy. Lake County Conunissig}ie£&, 147 U. S. 230, 235, 237-8, rather than by VHiaffee X7dunty~V\ Potter. The action in the Sutliff case was upon coupons of bonds issued by a county of Colorado, each bond reciting that it was issued under and by virtue of and in compliance with the act of assem- bly entitled " An t'ct concerning counties, county officers and county government, and repealing laws on these subjects," approved March 24, 1877, and it was cer^iified in each bond that " all the provisions of sajd- ^ct have been fully complied with by the proper officers in the issuing of this bond." It was a vital fact in that case that there was no recital in the bonds that the indebtedness thus created was not in excess of the constitutional limit. Still the defence was that the bonds in fact increased the indebtedness of the county to an amount in ex- cess of tlie limit prescribed by the state constitution and therefore were illegal and void The court, upon the facts certified and in the light of previous decisions, held it to be clear that "the plaintiff, although a purchaser for value and before maturity of the bonds, was charged with the duty of examining the records of indebted- ness provided for in the statute of Colorado, in order to ascertain whether the bonds increased the indebtedness of the county beyond the constitutional limit; and that the recitals in the bonds did not estop the county to prove by the records of the assessment and the indebt- edness that the bonds were issued in violation of the constitution. In thof^e cases," it continued, " in which this court has held a municipal GUNNISON COUNTY COMMISSIONERS V. IIOLLINS. 507 corporation to be estopped by recitals in its bonds to assert that tliey were issued in excess of the limit imposed by the constitution or stat- utes of the State, the statutes, as construed by the court, left it to the officers issuing the bonds to determine whether the facts existed which constituted the statutory or constitutional condiiion precedent, and did not require those facts to be made a matter of public record. Marcy V. Osivego, 92 U. S. G37 ; Humboldt v. Long, 92 U. 8. 642; Dixon County V. Field, 111 U. S. 83; Lake County v. Graham, 130 U. S. 674, 682 ; Chaffee County v. Potter, 142 U. S. 355, 3G3. But if the statute expressly requires those facts to be made a matter of public record, open to the inspection of everj' one, there can be no implica- tion that it was intended to leave that matter to be determined and conclnded, contrary to the facts so recorded, by the officers charo-ed with the duty of issuing the bonds." After referring to Dixon County V. Field, above cited, the court proceeded to show the precise grounds upon which the decisions in Lake County v. Graham and Chaffee County V. Potter were rested: "That decision [.Dixon County v. Field] and the ground upon which it rests were approved and affirmed in Lake County V. Graham and Chaffee County v. Potter, above cited, each of which arose under the article of the constitution of Colorado now in question, but under a different statute, which did not require the amount of indebtedness of the county to be stated on its records. In Lake County v. Graham, each bond showed on its face the whole amount of bonds issued^ and the recorded valuation of property showed that amount to be in excess of the constitutional limit ; and for this reason, as well as because the bonds contained no recital upon that point, the county was held not to be estopped to plead that limit. 130 U. S. 682, 683. In Chaffee County v. Potter, on the other hand, the bonds contained an express recital that the total amount of the issue did not exceed the constitutional limit, and did not show on their face the amount of the issue, and the county records showed only the valuation of property, so that, as observed by Mr. Justice Lamar in delivering judg- ment: 'The purchaser might even know, indeed it may be admitted that he would be required to know, the assessed valuation of the tax- able property of the county, and yet he could not ascertain by refer- ence to one of the bonds and the assessment roll whether the count}' had exceeded its power, under the constitution, in the premises.' 142 U. S. 363. The case at bar does not fall within Chaffee County v. Potter^ and cannot be distinguished in principle from Dixon County v. Field or from Lake County v. Graham. The only difference worthy of notice is that in each of these cases the single fact required to be shown by the public record was the valuation of the property of the county, whereas here two facts are to be so shown, the valuation of the prop- erty, and the amount of the county debt. But, as both these facts are equally required by the statute to be entered on the public records of the county, they are both facts of which all the world is bound to take 508 GUNNISON COUNTY COMMISSIONERS V. EOLLINS. notice, and as to which, therefore, the county cannot be concluded by any recitals in the bonds." It thus appears that in the SntI iff case the court neither modified, nor intended to modify, but distinctly recognized, the principle announced in Chaffee County v. Potter, namely, that the recital in the bonds that the debt thereby created did not exceed the limit prescribed by the con- stitution estopped the county from asserting, as against a bona fide holder for value, that the contrar}- was the fact. We have made this extended reference to adjudged cases because of the wide difference among learned counsel as to the effect of our former decisions. This course has also been pursued in order to bring out clearly the fact that the present case is controlled by the judgment in Chaffee CowU>/ v. Potter. The views of the Circuit Court, as ex-~ pressed in its charge in this case and as enforced by its peremptory instruction to find for the defendant, cannot be approved without over- ruling that case. It was expressly decided in the Chaffee County ca^e that the statute under which the bonds there in suit (the bonds here in suit being of the same class) authorized the County Commissioners to determine whether the proposed issue of bonds would in fact exceed the limit prescribed by the constitution and the statute ; and that the recital in the bond to the effect that such determination had been made and that the constitutional limitation had not been exceeded, taken in connection with the fact that the bonds themselves did not show such recital to be untrue, estopped the county, under the law, from saying that the recital was not true. We decline to overrule Chaffee County v. Putter, and upon the authority of that case, and without reexamining or enlarging upon the grounds upon which the decision therein proceeded, we adjudge that as against the plaintiff the county of G-unnison is es- topped to question the recital in the bonds in question to the effect that they did not create a debt in excess of the constitutional limit and were issued by virtue of and in conformity with the statute of 1881 and in full compliance with the requirements of law. We have assumed thus far that the plaintiff corporation was a bona fide purchaser or holder of the bonds to which the coupons in suit were attached. Upon this question we concur in the views expressed by the Circuit Court of Appeals. Speaking by Judge Thayer, that court said: "The testimony contained in the present record shows, we think, without contradiction that the plaintiff was a bona fide holder when the suit was brought of at least five of the bonds which are in- volved in the present controversy, because it holds the title of Joseph Stanley, who was himself an innocent purchaser of said bonds before maturity, for the price of ninety-eight cents on the dollar. The rights which Stanley acquired by virtue of such purchase inure to the plain- tiff, by virtue of its purchase of the bonds from Stanley in June, 1892, and this without reference to any knowledge which the plaintiff may have had at the latter date affecting the validity of the securities. A /Ur^ Cat-* GUNNISON COUNTY COMMISSIONEKS V. ROLLINS. 509 honafide holder of commercial paper is entitled to transfer to a third j:^ f^"*! party all the rights with which he is vested, and the title so acquired/ '-^'' -^ by his indorsee cannot be affected by proof that the indorsee was ac-| ' quainted with thq defences existing against the paper. Commissioners of Marion County \. Clark, 94 U S. 278, 286; IliU v. Scotland County, 34 Fed. Rep. 208 ; Daniel on Negotiable Instruments (4th ed.), § 803, and cases there cited." 49 U. S. App. 399, 413. The remaining five bonds owned by the plaintiff corporation were « also purchased from Stanley, who received them directly from the\0^ ur-^-._^ laws, shall be subject to any defence that would be allowed in cases of non-negotiable instruments. But for reasons that every one understands no such statutes have been passed. Municipal obligations executed -'^-fv^ under such a statute could not be readily disposed of to those who in- vest in such securities. It follows that the Circuit Court erred in directing the jury to return a verdict for the defendant. AYhat has been said renders it unnecessary to consider various ques- tions arising upon exceptions to specific rulings in the Circuit Court as to the admission and exclusion of evidence, and as to those parts of the charge to which objections were made. Those rulings were incon- sistent with the principles herein announced. J^ 510 CITY OF LOUISIANA V. WOOD. As neither the Circuit Court nor the Circuit Court of Appeals pro- ceeded in accordance with the principles herein announced, the judgment of each court is Me versed, and the cause is remanded for further 2^'t'oceedings ^^^^ consistent ivith this opinion.^ . ^ ^^ ♦.-,* ^^^•^^ ' CITY OF LOUISIANA v. WOOD. -""V^^**^^!^ ^^ 1880. 102 t/. 5. 294.2 Af^ / CT"*""^ Error to U. S. Circuit Court for Eastern District of JJ^ssjQiirL *'^'/\ k Action by Wood to recover back from the city money paid for cer- v tain bonds. The cit}" had authority in law to borrow money, and to tL^^ provide for the payment of its debts. An ordinance was passed, fjjfi authorizing the city fund commissioner to negotiate bonds of the ..^.^^ city for the purpose of raising money to liquidate the city debt, at a rate of discount not exceeding lifteen per cent. Before any bonds f^ had been issued under this ordinance, the legislature, on March 28, '•>«v 1872, passed a statute which provides that before any bond hereafter ^^/■sju issued by any city, for any purpose whatever, shall obtain validity or ■ be negotiated, such bond shall first be presented to the State Auditor, '^^^'^ who shall register the same, and who shall certify by indorsement on "^^^ such bond that all the conditions of the laws have been complied with /U-^ 1 in its issue, if that be the case. -JbnV On the 16th of July, 1872, after this act went into effect, the / city, for the purpose of raising money to pay its interest-bearing ^ *] 9 debts and the expenses of its government, caused to be executed by \^^ its proper officers, and sealed with its corporate seal, twenty-one (jj^ bonds, payable to bearer on the 1st of January, 1887, for 81,000 each, with coupons attached for semi-annual interest at the rate of ten gei- ceiit pei' annum. These bonds contained recitals that they yv>^ were issued under the authority of the charter and the ordinance of Jan. 8, 18G7. Although not actually executed until July 16, 1872, the city, " for the purpose of evading the provisions of said registra- tion law^, and with the intent to make it falsely appear that said bonds were not subject to the requirements of said law, caused said bonds to be antedated as of the first day of January, 1875~^ and caused it to be falsely stated in them that they were signed, countersigned, and sealed on the day last named." The bonds thus executed were, with- out beingj:egistered, placed by the fund commissioner in the hands of a ^respectable stock and bond broker in St. Louis, to sell "for the account of the city. On the 25th of August, 1873, the broker and 1 See also Wmte v. Santa Cruz, 184 U. S. 302. Statement abridged. — Ed. ([]Ctri. VU| >\v..v,,-^. June he sold to Lewis Dorsheimer one bond, and on the 24lh of February, 187-4, another to John F. Gibbons, at the same price. The price was in each case paid to the broker in money, the purchas- ers all the time being ignorant of the fact that the bonds were actually executed after the registration law went into effect, or that the recitals were not in all respects true. They bought the bonds, and paid for them in good faith, believing them to be what on their face they pur- ported to be, and obligatory on the city. The broker, with the assent of the fund commissioner, retained from the money realized on the sales five per cent on the par value of the bonds sold, for his services, and paid the residue to the comuiissioner, wlio, with the sanction of the city council, used part in the payment and redemption of matured bonds, coupons, and warrants of the city, and handed over the rest to the city treasurer. The fund comm.issioner reported the sales of the bonds to the city council, and charged himself with a sum equal M -^^ to eighty-five per cent of the par value as the sum realized by him, ' c'-'-''' malting no mention of the amount retained by the broker for services. ■. His accounts were examined and approved by the city council, and\l i;^ o-<(.y>cr (101 U. S. 093), decided at the last term. It is equally true that the legal effect of the transactions by which the plaintiff and his assignors got possession of the bonds was a borrowing by the city of the money paid for what was sup* 512 CITY OF LOUISIANA V. WOOD. posed to be a purchase of the bonds. As the broker through whom the business was doue was the agent of the city and acting as such, the case, so far as the city is concerned, is the same as though the money had Been paid directly into the city treasury and the bonds A ^>dti*^ . fgiven back in exchange. The fact that the purchasers did not know I . 'for whom the broker was acting is, for all the purposes of the present inquiry, immaterial. They believed they were buying valid bonds which had been negotiated and were on the market, when in reality '^ \ they were loaning money to the city, and got no bonds. The city "" was in the market as a borrower, and received the money in that character, notwithstanding the transaction assumed the form of a sale of its securities. The city, by putting the bonds out with a false date,^repres ented that they were valid without registry. The bonds were bought and ^ Ji. ^' *^^ price was paid under the belief, brought about by the conduct of '" the city, that they had been put out and had become valid commer- cial securities before the registry law went into effect. It would ^ ' certainly be wrong to permit the city to repudiate the bonds and keep the money borrowed on their credit. The city could lawfully borrow. The objection goes only to the way it was done. As the purchasers were kept in ignorance of the facts which made the bonds invalid, they did not knowingly make themselves parties to any illegal trans- action. They bought the bonds in open market, where they had been put by the city in the possession of one clothed with apparent authority to sell. The only party that has done any wrong is the city. C*' *" ^" 111 Moses V. 3IacFerlan,{-2 Burr. 1005), it is stated as a rule of the ^^. common law, that an action " lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through ttA^(jjr^%^ imposition." The present action can be sustained on ei ther of these "^grounds. The money was paid for bonds apparently well executed, when in fact they were not, because of the false date they bore. This was clearly money paid by mistake. The consideration on which the payment was made has failed, because the bonds were not, in fact, valid obligations of the city. And the money was got through impo- sition, because the city, with intent to deceive, pretended that the false date the bonds bore was the true one. While, therefore, the bonds cannot be enforced, because defectively executed, the money paid for them may be recovered back. As we took occasion to say in Marsh v. Fulton County (10 Wall. 676), "the obligation to do justice rests upon all persons, natural or artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.'' It is argued, however, that, as the city was only authorized by law to borrow money at a rate of interest not exceeding ten per cent per annum, the money cannot be recovered back, because a sale of the bonds involved an obligation to pay interest beyond the limited RAILROAD NATIONAL BANK V. CITY OF LOWELL 513 rate, and the borrowing was, therefore, ultra vires. There was no actual sale of bonds, because there were no valid bonds to sell. There was no express contract of borrowing and lending, and conse- -s^*^^-— *- '^ -"^ que zitly no express""c6htract to pay any rate of interest at all. The ' only contract actually entered into is the one the law implies from jvhat was done, to wit, that the city would, on demand, return the money paid to it liy mistake, and, as the money was got under a form of obligation which was apparently good, that interest should be paid^' at "the legal rate from the time the obligation was denied. That con- tract the plaintiffs seek to enforce in this action, and no other. Again, it was contended that, as the money in this case was bor- rowed to take up bonded indebtedness, the transaction was ultra vires, because the effect of the eleventh section of the act of 1872 was to repeal all earlier laws authorizing the borrowing of money for such . . t^ purposes. We do not so understand that section. The old power to ^^wC^M borrow, which the charter gave, was left unimpaired, but, under this cS^l^*-^ new provision, registered bonds might be issued in place of old ones, ^^o■>^^/•e^^^ if the city and the holders of the old bonds could agree on terms and ' the people gave their assent. In this way the holders of old bonds might avail themselves of the special tax which the law of 1872 re- quired should be levied to meet the obligation of all registered bonds; but the city was not prevented from borrowing money to pay old bonds if it saw fit to do so, or if it could not agree on the terms of exchange. The judgment below was right, and it is consequently . Affirmed. '^■^^ RAILROAD NATIONAL BANK v. CITY OF LOWELL. s ^^\ * 1872. 109 .1/fTss. 214. ^ Contract to recover $3397 as money had and received to the T^ plaintiffs' use. The case was submitted to the judgment of this court * on the following statement of facts: In 1864 Thomas G. Gerrish was chosen treasurer of the defendants, ^ ■ held the office by successive annual elections, and discharged the ^uAT^ duties thereof until after March 10, 1869. During all this time he, ^^yv^sis treasurer, had an account with the plaintiff's and with no other \^^^ank, under an arrangement between the parties that the accounts of '^"'^ tlie defendants should be kept there. In each of the years 1865, 1866, .-'^r'T^lSe? and 1868, the city council authorized him to borrow money of -K'^'^he plaintiffs in anticipation of the collection of taxes, and the sums V;;! 'SO borrowed were always repaid with interest. In INIarch 1869, ^ Gerrish was a defaulter to the defendants as treasurer, to the amount of $30,000, but the fact was unknown to the parties to this action. and on the evening of March 9 a resolution, authorizing him to bor- 514 RAILEOAD NATIONAL BANK V. CITY OF LOWELL. row $130,000 from the plaintiffs, in anticipation of the collection of taxes for that year, was introduced into the common council, read once, and ordered to a second reading. ^>~*^^n the molming "of March 10, 1869, at which time the amount ^K>-0 standing to the credit of Gerrish as treasurer, in the plaintiffs' \h^''^ hands, was $2674, he stated to the plaintiffs' cashier that the neces- U * sar}' authority to borrow money had been granted the evening before, .T^A ■ that the papers were not executed, and that he.w2shed_to overdraw Ms account. He therefore, without the knowledge of the defendants, or any especial authority from them, presented to the plaintiffs a check signed by himself as city treasurer, payable to his own order, and indorsed by him, for $5000, received the money therefor from the plaintiffs, placed the same in the cash-drawer where he kept the defendants' money, with " a small sum, exceeding $100," remaining there after thfe business of the preceding day; and from the money there he paid during the same day, to various creditors of the de- fendants, upwards of $4900. The rest of it was left there, and came into the possession of the defendants. He afterwards on the same day drew another check upon the plaintiffs, signed by himself as city treasurer, payable to bearer, for $1072, to pay a debt due from the defendants to a gaslight company, which check was presented to the plaintiffs by the company and paid on the same day. On March 11, 1869, Gerrish resigned his office. He never kept a private account with the plaintiffs. Demand was made on the de* fendants on March 12, 1869. C. Allen & F. W. Kittredge, for the plaintiffs. T. H. Sweetser & J. F. McEooy, for the defendants. g^.^^-^^ I Wells, J. That the city is not liable for the money as a loan, / because it was advanced to its treasurer or paid upon his checks, ia f fully settled by the decisions in Lowell Five Cents Savings Bank v. Winchester, 8 Allen, 109; Benoit v. Conway, 10. Allen, 528; and Dickinson v. Conway, 12 Allen, 487. v»V«'^*^ It was also decided in Kelley v. Lindsey, 7 Gray, 287, that money ^.1. ^,-^J^ advanced on account of the defendant to one in his employ, but who had no authority to borrow money for him, created no debt against the defendant, although advanced for the purpose of being expended in his business and to pay his debts, and actually so applied. That de- cision appears to us to be conclusive against the plaintiff in this case. In Bill V. Wareham, 7 Met. 438, cited by the plaintiff, the money was paid into the treasury of the town in pursuance of a contract made by authority of a vote of the town. In Atlantic Bank v. Merchants' Bank, 10 Gray, 532, and Skinner V. Merchants' Bank, 4 Allen, 290, the money came into the actual possession and control of the defendant bank. The legal possession of money received by the officers of a bank, in the usual mode, is in the corporation, and not in the officers in whose charge and manual control it is intrusted. Commonwealth v. Tuckerman, 10 Gray, 173. AGAWAM NAT. BANK V. INHABITANTS OF SOUTH HADLEY. 515 The treasurer of a city or town is an independent accounting! Jl^ :'w^>«> ■ ofBcei-rijy statute made the depositary of the moneys of the city or | ^^^o^^v! towEu__Gen. Sts. c. 18, §§ 54, 59; c. 19, §"2. The legaf possession fl , ^..xr^ta-' of the spe cific moneys in his hands, from whatever source, is in him. l"^ (Kr»-s Hancock v. Hazzard, 12 Cush. 112. Coleraine v. Bell, 9 j\Iet. 499. / v All moneys of the city or town he holds as its property, and exclu- ■ ''•^ sively for its use. But he holds them by virtue of his public official 1 \\^ 1-^^^- ^« authority and duty, and not merely as the agent or servant of a corporation. The fact that th e money in this case went into the hands of the treasurer, an d was" placed in the drawer provided by the city for his use in keeping the funds of the city, is not enough to charge the defendant with U abjHtj^ The result is, therefore, that the defendant is entitled to judgment. ^ ^1^^' COLT, J., IN AG AW AM NATIONAL BANK v. INHABI- TANTS OF SOUTH HADLEY. 1880. 128 J/ass. 503, pp. 508, 509. Colt, J. ... It is said that an action for money had and received may be maintained against a municipal corporation, when the money has been received under such circumstances that, independently of express contract, the obligation of repayment is imposed as a matter of right and justice. Thus, when it is received under a contract made without authority or in violation of law, the duty arises to refund the money to the party from whom it was received, if, without affirming the illegal contract, the latter seeks only to recover his own money and prevent the defendant from unjustly retaining the benefit of its own illegal act. Morville v. American Tract Society^ 123 Mass. 129. , Dill v. Wareham, 7 Met. 438. White v. Franklin Bank, 22 Pick. 181. See also Thomas v. Richmond, 12 Wall. 349, 355. But in such cases it must appear that the money was actually and beneficially appropriated by the town or city in its corporate capacity. It cannot be treated as appropriated merely because it has been applied by the unauthorized act of the town treasurer, or of any other person, to the payment of municipal debts, for the payment of which other provision had been made. It is sometimes said, indeed,^ wiTH reference to money borrowed in disregard of positive prohibi- tion, when both parties are in fault, that it cannot under any circum- stances be recovered back, because that would be to defeat the prohibition in favor of a guilty party. McDonald v. Maijor, &c. oj New York, 68 N. Y. 23. Parr v. Greenhish, 72 N. Y. 463, 472. Herzo v. San Francisco, 33 Cal. 134. Argenti v. San Francisco^ 16 Cal. 255, 282. See also Dillon Mun. Corp. § 383. 516 MCDONALD V. MAYOR, &C., OF NEW YORK. FIELD, J., IN CRAFT v. SOUTH BOSTON R. R, 1889. 150 Mass. 207, p. 210. Field, J. . . . "Whether a person under any circumstances can be made a debtor for money borrowed by another for him, without authority, and appropriated to his use without his knowledge or con- sent, need not be considered. See Kelley v. Lindsey, 7 Gray, 287. No obligation on the part of the defendant ought to be implied in this case, because Reed was a defaulter, and the money was used to cover up his defalcation by paying debts of the company, which the moue}' of the company, if he had not embezzled it, would have been used to pay. The onl}' reasonable inference is that Reed's primary purpose in using the money in this way was to escape detection and to benefit himself. Whether it was a benefit to the company that he was able to obtain and use money for this purpose is necessarily uncertain. The money was not borrowed bona fide for the use of the company. See Railroad National Bank v. Lowell^ 109 Mass. 214j Agawam National Bank v. South Hadley^ 128 Mass. 503. Mcdonald v. mayor, &c., of new york. 1876. 68 New York, 23.1 Appeal from order of the General Term of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiff entered upon a verdict, and granting a new trial. This action was brought to recover the value of certain gravel and stone alleged to have been sold and delivered by plaintiff to defendant and used in the repair of one of its streets. The material was, as the evidence tended to show, furnished by plaintiff in 1869 and 1870, at the request of the superintendent of roads, to whom the bills were given and were certified by him to the street department. The material was taken and used on the streets. Further facts appear in the opinion. Henry Parsons, for appellant. D. J. Dean, for respondent. FoLGER, J. The plaintiflf sues to recover from the city the value of materials furnished by him to certain officials, which were used in the repair of a public way. The amount he claims is over 61,600 in the whole. The materials were furnished at different times, in parcels, each of which, except one, was less in value than $250. He does not aver, nor did he prove in terms, that a necessity foJ ^ Argumenta omitted. — Ed. MCDONALD V. MAYOR, AC, OF NEW YORK. 517 the purchase or use of the materials was certified to by the head of the department of public works, or that the expenditure therefor was authorized by the common council (Laws of 18o7, vol. 1, p. 8«G, chap. 446, § 38) ; nor did he aver or prove in terms, that a contract for the purchase of the materials was entered into by the appropriate head of department, upon sealed bids or proposals, made in compli- ance with public notice advertised. (Id. )^ The existence and stringency of these statutory provisions are recognized by plaintiff's counsel, but the force of them is sought to be avoided. It is urged, that the object of the expenditure was proper, as it is part of the defendant's corporate duty to keep public ways in repair; that the material was delivered to the superintendent of roads, an official of the defendant, charged with carrying that duty into practical effect; and that the plaintiff' had reason to believe that the superintendent was acting within the line of his duties. The first two of these propositions may be admitted ; the third may not be. Doubtless, to the apprehension of the plaintiff, the superintendent was so acting, as to do work which it was the duty of the defendant to cause to be done. But we see nothing in the case which brought to his mind, so as to create a belief, that there had been a contract made for the material, as above indicated, or that the necessity for the expenditure had been certified to and authorized, as required by law. And though the superintendent of roads had certified to be correct, the bills for the materials, rendered by the plaintiff, this did not meet the letter of the statute laws. Such certification did not precede the reception of the material ; nor was the certification by the head of the department; nor was the taking and use of the material, nor payment for it, authorized by the common council. Nor can it be that the provisions of the statute, are alone for the instruction of the department and officials of the defendant. They were a restraint upon them, but upon other persons as well. They put upon all who would deal with the city, the need of first looking for the authority 1 " All contracts to be made or let by authority of the common council for work to be done or supplies to be furnished . . . shall be made b}' the appropriate heads of departments, under such regulations as shall be established by ordinances of the com- mon council. Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than two hundred and fifty dollars, the same shall be by contract, under such regulations con- cerning it as shall be established by ordinance of the common council, unless by a vote of three-fourths of the members elected to each board, it sliall be ordered other- wise ; and all contracts shall be entered into by the appropriate heads of departments, and shall be founded on sealed bids or proposals made in compliance with public notice . . . ; and all such contracts when given shall be given to the lowest bidder. . . . . . No expenditure for work or supplies involving an amount for which no contract is required, shall be made, except the necessity therefor be certified to by the head of the appropriate department, and the expenditure be as authorized by the common louncil." New York Laws o/ 1857, Chap. 446, Sect. 38. — Ed. 518 MCDONALD V. MAYOR, &C., OF NEW YORK. of the agent with whom they bargain. Quite clearly do they impose upon the paying agent of the defendant a prohibition against an un- authorized expenditure. And are they not also a restraint upon the municipality itself? They are fitted to insure official care and delib- eration, and to hold the agents of the public to personal responsi- bility for expenditure; and they are a limit upon the powers of the corporation, inasmuch as they prescribe an exact mode for the exer- cise of the power of expenditure. It is said that the plaintiff had a right to presume, that the agents of the defendant transacted their business properly, and under suffi- cient authority. Does not this involve, also, that the plaintiff had a right to presume, that it was the business of the superintendent of roads to purchase material for the city upon the credit of the city, and that he had authority so to do? This cannot be maintained. It is fundamental, that those seeking to deal with a municipal cor- poration through its officials, must take great care to learn the nature and extent of their power and authority. {Hodges v. Buffalo, 2 Denio, 110; cited 33 N. Y., 293; Cornell v. Guilford, 1 Den., 510; Savings Bank v. Winchester, 8 Allen, 109.) The plaintiff cites United States Bajik v. Dandridge (12 Wheat., 70). But there it is said that if the charter imposes restrictions they must be obeyed. Could the plaintiff presume that it was the duty of the defendant to keep the Kingsbridge road in repair? No; he must look to its char- ter to learn of that duty. The same instrument would show him just how it must obtain the material to perform that duty. The Gas ComiKinyN. San Francisco (9 Cal., 453) is also cited. The real ques- tion there decided was, that a city can be held to have incurred a liability otherwise than by ordinance. There was no stress in that case upon any inhibitions in the charter of the city. The result was arrived at by a divided court. But the main reliance of the plaintiff, is upon the proposition that the defendant, having appropriated the materials of the plaintiff and used them, is bound to deal justly and to pay him the value of them. The case of Nelson v. The Mayor (63 N. Y., 535) is cited. The learned judge who delivered the opinion in that case does, indeed, use language which approaches the plaintiff's proposition; but the judgment in that case did not go upon the doctrine there put forth; and when the opinion is scrutinized it does not quite cover this case. It is said: " If it (the city), obtains property under a void contract, and actually uses the property, and collects the value of it from 'property owners by means of assessments, the plainest principles of justice require that it should make compensation, for the value of such property, to the person from whom it was obtained." The words we have marked in italics indicate a difference between the two propositions; though it is to be admitted, not a great difference in the principles upon which each rests. The case in the California courts (Argenti v. San Francisco, 16 Cal., 255), goes upon the ground MCDONALD V. MAYOR, &C., OF NEW YORK. 519 set forth in the opinion in Nelsoii's Case, (supra). There is, how- ever, a more radical eiifference, than that above noted, in the two cases cited and that in hand. In those two cases the w^ay was open for implying a promise to pay what the property was worth, if with no disregard of statute law, such an implication was admissible; that is to say, there was in those cases, so far as appears from the facts, no express inhibition upon the city that it should not incur a liability save by an express contract. Here there is an express legislative inhibition upon the city, that it may not incur liability unless by writing and by record. How can it be said that a municipality is liable upon an implied promise, when the very statute which continues its corporate life, and gives it its powers, and prescribes the mode of the exercise of them, says, that it shall not, and hence cannot, become liable, save by express promise? Can a promise be implied, which the statute of frauds says must be in writing to be valid? How do the cases differ? The Bank of the United States v. Dandridge (supra), which is a leading case upon the doctrine of the liability of a corporation aggregate, upon a promise implied, holds, as we have already said, that if the charter imposes restrictions upon the manner of contracting, they must be observed. And the California cases above cited, concede the same. It is plain, that if the restriction put upon municipalities by the legislature, for the purposes of re- ducing and limiting the incurring of debt and the expenditure of the public money, may be removed, upon the doctrine now contended for, there is no legislative remedy for the evils of municipal government, which of late have excited so much attention and painful foreboding. Restrictions and inhibition by statute are practically of no avail, if they can be brought to naught by the unauthorized action of every official of lowest degree, acquiesced in, or not repudiated, by his superiors. Doiiovan v. The Mayor, etc. (33 N. Y., 291), seems to be an authority in point, though the exact question now presented was not considered. And incidental remarks of Denio, J., in Peterson v. The Mayor (17 N. Y., 449), are to the same purport. And see Peck V. Burr (10 N. Y., 294). The views here set forth, are not to be extended beyond the facts of the case. It may be, that where a munic- ipality has come into the possession of the money or the property of a person, without his voluntary intentional action concurring therein, the law will fix a liability and imply a promise to repay or return it. Thus, money paid by mistake, money collected for an illegal tax or assessment; property taken and used by an official, as that of the city, when not so ; — in such cases, it may be that the statute will not act as an inhibition. The statute may not be carried further than its intention, certainly not further than its letter. Its purpose is to forbid and prevent the making of contracts by unauthorized official agents, for supplies for the use of the corporation. This opinion goes no further than to hold, that where a person makes a contract with the city of New York for supplies to it, without the requirements 520 LITCHFIELD V. BALL0T7. of the charter being observed, he may not recover the value thereof upon an implied liability. The judgment should be affirmed. All concur. Judgment affirmed.^ LITCHFIELD v. BALLOU. 1885. 114 U. S. 190. This was a bill in chancery to enforce payment of moneys loaned to a municipality in violation of law, and for which it had been held that an action could not be maintained at law. Buchanan v. Litchfit'ld, 102 U. S. 278. The facts making the case are stated in the opinion of the court. John M. Palmer and B. S. Edwards for appellant. D. T. Littler for appellees. Mr. Justice Miller delivered the opinion of the court. This is an appeal from a decree in chancery of the Circuit Court I'or the Southern District of Illinois. The suit was commenced by a bill brought by Ballou against the city of Litchfield. Complainant alleges that he is the owner of bonda issued by the city of Litchfield to a very considerable amount. That the money received by the city for the sale to him of these bonds was used in the construction of a system of water works for the city, of which the cit}' is now the owner. He alleges that one Buchanan, who «yas the owner of some of these bonds, brought suit on them in the Same court and was defeated in his action in the Circuit Court and in the Supreme Court of the United States, both of which courts held the bonds void. He now alleges that, though the bonds are void, the city is liable to him for the money it received of him, and as by the use of that money the water works were constructed, he prays for a decree against the city for the amount, and if it is not paid within a reason- able time to be fixed by the court, that the water works of the city be ^ "To permit a recovery upon a, quantum meruit solely for a work which can be done only by authority of a statute, would necessarily lead to the conclusion that a statute might be wholly ignored, and the county bound, provided it received the worth of its money. "... The distinction must be kept in view between those cases which hold that a municipal corporation, which has received the benefit of money, labor, or property upon a contract made without due formality, and which is not prohibited by statute, is liable to the extent of the value of what lias been received and appropriated, and those cases where the municipality has power to act only by virtue of a statute, and, in attempting to exercise the power, has failed to observe the statutory requirements. In the one class of cases the power to contract exists, while in the other the power to contract does not exist, because of the failure of the municipality to that which alone could give it such power." Robinson, C. J., in \Vro)i(]ht-Iron Bridqe Co. v. Board of Com'rs of Hendricks Coiinti/, Appellate Court of Indiana, a. d. 1898, 48 Northeastern Reporter, 1050, p. 1052. — JEd. LITCHFIELD V. BALLOU. 521 Bold to satisfy the decree. The bill also charges that he was misled to purchase the bouds by the false statemeuts of the ofllcers, agents and attorneys of the city, that the bonds were valid. Other parties came into the litigation, and answers were tiled. The answer of the city denies any false representations as to the character of the bonds, denies that all the money received for them went into the water works, but part of it was used for other purposes, and avers that a larger part of the sum paid for the water works came from other sources than the sale of these bonds, and it cannot now be ascertained how much of that money went into the works. The case came to issue and some testimony was taken, the sub- stance of which is that much the larger part of the money for which the bonds were sold was used to pay the contractors who built the water works, while a very considerable proportion of the cost of these works was paid for out of taxation and other resources than the bonds. There is no evidence of any false or fraudulent representations by the authorized agents of the city. The bouds were held void in the case of Buchanan v. Litchfield^ 102 U. S. 278, because they were issued in violation of the following provision of the Constitution of Illinois : "Article IX. " Section 12. No county, city, township, school district, or other municipal corpoi-ation, shall be allowed to become indebted in any manner, or for any purpose, to an amount, including existing indebted- ness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes, previous to the incurring of such indebtedness." It was made to appear as a fact in that case, that at the time the bonds were issued the city had a pre-existing indebtedness exceeding five percent, of the value of its taxable property, as ascertained by its last assessment for State and county taxes. The bill in this case is based upon the fact that the bo7ids are for that reason void, and it makes the record of the proceedings in that suit an exhibit in this. But the complainant insists that, though the bonds are void, the city is bound, ex a-quo et bono, to return the money it received for them. It therefore prays for a decree against the city for the amount of the money so received. There are two objections to this proposition: 1. If the city is liable for this money, an action at law is the appropriate remedy. The action for money had and received to plaintiffs' use is the usual and adequate remedy in such cases where the claim is well founded, and the judgment at law would be the exact equivalent of what ia prayed for in this bill, namely, a decree for the amount against the city, to be paid within the time fixed by it for ulterior proceedings. 522 LITCHFIELD V. BALLOU. In this view the present bill fails for want of equitable jurisdictioa 2. But there is no more reason for a recovery on the implied contract to repay the money, than on the express contract found in the bonds. The language of the Constitution is that no city, &c., " shall be al- lowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of its taxable property." It shall not become indebted. Shall not incur any pecuniary liability. It shall not do this in any manner. Neither by bonds, nor notes, nor by express or implied promises. Nor shall it be done lor SiUy purpjose. No matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of payment as an impassable obstacle to the creation of any further debt, in any manner, or for any purpose whatever. If this prohibition is worth anything it is as effectual against the implied as the express promise, and is as binding in a court of chan- cery as a court of law. Counsel for appellee in their brief, recognizing the difficulty here pointed out, present their view of the case in the following language: " The theory of relief assumed by the bill is, that notwithstanding the bonds were wholly invalid, and no suit at law could be success- fully maintained either upon the bonds or upon any contract as such growing out of the bonds, yet as the City of Litchfield is in posses- sion of the money received for the bonds, or, which is the same thing, its equivalent in property identified as having been procured with this money and having repudiated and disclaimed its liability in respect of the bonds, it must, upon well established equitable princi- ples, restore to the complainants what it actually received, or at least so much of what it received as is shown now to be in its possession and in its power to restore." If such be the theory of the bill, the decree of the court is quite unwarranted by it. The money received by the city from Ballou has long passed out of its possession, and cannot be restored to com- plainant. Neither the specific money nor any other money is to be found in the safe of the city or anywhere else under its control. And the decree of the court, so far from attempting to restore the specific money, declares that there is due from the City of Litchfield to com- plainants a sum of money, not that original money, but a sum equal in amount to the bonds and interest on them from the day of their issue. Is this a decree to return the identical money or property received, or is it a decree to pay as on an implied contract the sum received, with interest for its use? As regards the water works, into which it is said the money was transmuted; if the theory of counsel is correct, the water works should have been delivered up to plaintiffs as representing their money, as property which they have purchased, and which, since the LITCHFIELD V. BALLOU. 523 contract has been declared void, is their property, as representing their money. In this view the restoration to complainants of the property which represents their money puts an end to obligations on both sides growing oui of the transaction. The complainants, having recovered what v.as theirs, have no further claim on the city. The latter having discharged its trust by returning what complainant has elected to claim as his own, is no longer liable for the money or any part of it. But here also the decree departs from what is now asserted to be the principle of the bill. Having decreed an indebtedness where none can exist, and declared that complainant has a lien on, not the owner- ship of, the water works, it directs a sale of the water works for the paj^ment of this debt and the satisfaction of this lien. If this be a mode of pursuing and reclaiming specific property into which money has been transmuted, it is a new mode. If the theory of appellee's counsel be true, there is no lien on the property. There is no debt to be secured by a lien. That theory discards the idea of a debt, and pursues the money into the property, and seeks the property, not as the property of the city to be sold to pay a debt, but as the property' of complainant, into which his money, not the city's, has been invested, for the reason that there was no debt created by the transaction. The money received on the bonds having been expended, with other funds raised by taxation, in erecting the water works of the city, to impose the amount thereof as a lien upon these public works would be equally a violation of the constitutional prohibition, as to raise against the city an implied assumpsit for money had and received. The holders of the bonds and agents of the city are participes criminis in the act of violating that prohibition, and equity will no more raise a resulting trust in favor of the bondholders than the law will raise an implied assumpsit against a public policy so strongly declared. But there is a reason why even this cannot be done. Leaving out of view the question of tracing complainants' money into these works, it is very certain that there is other money besides theirs in the same property. The laud on which these works are constructed was bought and paid for before the bonds were issued or voted. The streets through which the pipes are laid is public prop, erty into which no money of the complainants entered. INIuch, also, of the expense of construction was paid by taxation or other resources of the city. How much cannot be known with certainty, because, though the officers of the city testify that on the books a separate water- works account was kept, there is no evidence that the funds which went to build these works are traceable by those books to their source in any^ instance. If the complainants are after the money they let the city have, they must clearly identify the money, or the fund, or other property which represents that money, in such a manner that it can be reclaimed and 524 travelers' insurance company v. johnson city. delivered without taking other property with it, or injuring other persons or interfering with others' rights. It is the consciousness that this cannot be done which caused the court and counsel to resort to the idea of a debt and a lien which can- not be sustained. A lien of a person on his own property, which is and has always been his, in favor of himself, is a novelty which ouly the necessities of this case could suggest. Another objection to this assertion of a right to the property is, that the bondholders, each of whom must hold a part of whatever equity there is to the property, are numerous and scattered, and the relative amount of the interest of each in this property could hardly be correctly ascertained. The property itself cannot be divided ; its value consists in its unity as a system of water works for the city. "VVithcut the land and the use of the streets, the value of the remainder of the plant is gone. In these complainants can have no equity. The decree of the court is recersed and the case remanded^ with direc- tions to dismiss the bill. Mr. Justice Harlan dissented. TRAVELERS' INSURANCE COMPANY v. JOHNSON CITY. 1900. 99 Fed. 663. Suit at law to recover from the defendant $50,000 and interest from January 5, 1892, as money had and received to the use of the defend- ants; this amount having been paid by plaintiff to the Charleston, Cincinnati & Chicago R. R. to buy bonds of the defendant.^ Taft, Circuit Judge. . . . The question for our consideration here is, whether one who, for full value, purchases in the market negotiable bonds paj^able to bearer, and unindorsed, issued by a municipal cor- poration to a railroad company of another state, to whom it has no power to issue the bonds, in payment of a subscription to the com- pany's stock to which it has no power to make a subscription, after the railroad has been built, and the depot has been constructed on the company's ground, and the certificates for the stock subscribed for have been delivered to the municipal corporation, all in accordance with the condition of the subscription agreement, may recover from the municipal corporation the money paid by it in open market for the bonds, on the ground that that amount has been expended in conferring upon the city the benefit of the railroad and the depot and the stock, when it further appears that the corporation has power to make sub- 1 This short statement is substituted for that of the Reporter. Part of opinion omitted. — Ed. travelers' insurance company v. JOHNSON CITY. 525 scriptions for the stock of a domestic corporation, and to pay for the same in its bonds. We think the question must be answered in the negative. The cause of action is for money had and received to the use of the city. Such an action is based, not on an express or implied contract, but upon an obligation which the law supplies from the circumstances, because, ex ccquo et bono, the defendant should pay for the benefit which he has derived at the expense of the plaintiff. It is an obligation which the law supplies, because, otherwise, it would result in the unjust enrichment of the defendant at the cost of the plaintiff. It is an obligation which arises only when the defendant has received money or property from the plaintiff and appropriated the same to his own use, either when he might have elected not to take it, or, having the power to do so, might return the benefit tlius conferred to the plaintiff, and fails to do so. In this case the three benefits con- ferred on the plaintiff are : (1) The issuing of the stock ; (2) the con- struction of the railroad; and (3) the building of the depot. As to the first, it has been conclusively adjudged by the supreme court of Tennessee in the case of Johnson City v. Charleston, C. & C. R. Co., 100 Tenn. 138, 44 S. AV. 670, in which the plaintiff and the defend- ants were adversary parties, that the cit}' had no power to subscribe to the stock of the railroad company. This being so, the city did not become a stockholder in the railroad company, and did not receive the benefit of the stock purporting to be issued. The contract of sub- scription was utterly void, and the certificate was but waste paper. It imposed no obligation upon the railroad company or its stockholders ; it conferred no benefit upon the city. The case of Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198, leaves no doubt on this point. There a national bank, without power to do so under the na- tional banking laws, purchased stock in a savings bank of the state of California. It was held that, in the absence of poorer to own the stock, the national bank did not become a stockholder, and was not liable to pay the assessment upon the stock for the benefit of creditors, although in that case it had received, and had not returned, dividends issued to it as a stockholder. The other benefits said to have been conferred upon the city were the construction of the railroad and the building of the depot. As the railroad and the depot were constructed on the land of the railroad company, they did not go into the possession of the city as its property. Had the railroad company, without any subscription by the city, built its railroad through the city, and erected its station there, it certainly could not be claimed that this would have given the railroad company a right of action against the city for the value of the benefits conferred on the city by such construction, how- ever great those benefits might have been in adding to the prosperity of the city and its inhabitants. In the absence of an express agree- ment to pay for such a benefit, no tacit agreement to do so can be inferred. Where the conferring of the benefits was induced by an express agreement which is void, the law will not supply an obligation 526 travelers' insurance company v. johnson city. to pay on the ground of unjust enrichment as a quasi contract, unless, in the absence of the express agreement, a real, but tacit, contract could have been inferred from the circumstances. The benefit indirectly conferred on one man's property by the improvement of the land of another is not an unjust enrichment of the other. Hence, ex wquo et bono, no obligation in law to pay for it arises. The case in hand is not distinguishable in principle from that of Railroad Co. v. Bensley, 6 U. S. App. 115, 2 C. C. A. 480, 51 Fed. 738, 19 L. R. A. 796, de- cided by this court, in which Mr. Justice Brown delivered the opinion. In that case the owners of lots in Chicago in close proximity to the lot on which it was proposed to construct the Chicago Board of Trade Building entered into a written contract with the owner of the lot by which they agreed that, if he would sell the lot to the board of trade at a low price, so as to induce the board of trade to buy it, and if the board of trade should construct its building thereon within a certain time, they would pay the owner of the lot, each of them, a certain sum of money. The owner of the lot accordingly sold it to the board of trade at the price named in the agreement, but the building was not constructed within the time fixed by the agreement. Suit was brought by the owner to recover from the contractors the amounts stipulated to be paid in the contract after the building had been constructed. The court held that time was of the essence of the contract, and was made a condition precedent to the obligation to pay, and that, there- fore, no recovery could be had under the contract. The plaintiff then sought to recover on a quantum valehat, and it was held that the benefit conferred was not one which created an obligation on the part of the lot owners to pay, even though it appeared that, owing to the erection of the Board of Trade Building, they had been enabled to sell their land at a largely increased price. The court said : " Had the defendant received a benefit from the performance of this contract to which he would not have been entitled had the contract not been made, the result might have been different ; but, as a matter of fact, it received no benefit from the erection of this building which did not accrue to other owners of neighboring property who did not sign the contract or subscribe in aid of the purchase of the lot, and as to such persons it would not be claimed that liability arises. Its acqui- escence in the completion of the building is immaterial, since it had no right to interfere. It is, then, only upon the basis of the special con- tract to pay that an action will lie, and this contract not having been performed by the plaintiff, there can be no recovery." Mr. Justice Brown mentioned, as a most satisfactory case upon this point. Railway Co. v. Thomjjson, 24 Kan. 170, and said : " This was an action upon certain bonds issued by the city of Par- sons in aid of the construction of the plaintiff's road, and subject to a condition that the plaintiff should ' have its road constructed and in operation on or before the first day of July, 1878.' It was held that time was of the essence of this contract, and that the failure of the travelers' insurance company v. JOHNSON CITY. 527 plaintiff to complete the road by the da}- named was fatal to a recovery, notwithstanding the road was completed shortly after that, and the city received the benefit of it. In delivering the opinion of the court, Mr, Justice Brewer, now of the Supreme Court of the United States, observed : ' Nor is this a case of part performance by one party and the acceptan-^e by the other of the proceeds of such performance. The work done by the company was upon its own grounds. It owns the road absolutely and entirely. It has parted with nothing which the city has received. TTie city has accepted and appropriated none of its labor and none of its materials. It has received the benefit of the work in no other sense than every individual in the community, and in no other way than of one person receiving benefit from his neighbor's improve- ment of his own property.' " While these were cases in which the plaintiff failed to recover on the express contract, not because it was idtra vires and void, but be- cause the plaintiff failed to comply with a condition precedent in such contract, the principle upon which they were placed is entirely appli- cable to the case at bar. This is made apparent by the language of Mr. Justice Jackson in delivering the opinion in Hedges v. Dixon Co.y 150 U. S. 184-186, 14 Sup. Ct. 71, 37 L. Ed. 1044. There a county had issued bonds in aid of a railroad in excess of its authority, and the holders of the bonds filed a bill in which they asked from the court the relief of cutting down the obligation of the bonds proportionately so as to bring it within the lawful amount. The Supreme Court held that the relief could not be granted, and, referring to the cases of Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153, and Read v. City of Plaftsmouth, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414, in which it had been permitted to bondholders of bonds issued without authority to recover from the municipal corporation issuing the bonds the amount of money received by it and expended by it for lawful purposes as money had and received to its use, the court said: " The circumstances and conditions which gave the holders of the bonds an equitable right in those cases to recover from the munici- pality the money which the bonds represented do not exist in the case under consideration, where the county received no part of the proceeds of the bonds, and no direct money benefit, but merely derived an inci- dental advantage arising from the construction of the railroad, upon which advantage it would be impossible for the court to place a pe- cuniary estimate, or to say that it would be equal to such portion of the bonds in question as the county could lawfully have issued." For these reasons we think that there is no ground upon which to base a recovery for money had and received to the use of Johnson City. The cases relied upon by the plaintiff are Read v. Citij of Plattsmoidh, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414 ; Chapman v. Douglass Co., 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Parkershurg v. Broicv, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238; Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153 ; Hitchcock v. Galveston, 96 U. S. 528 travelers' insurance company v. JOHNSON CITY. 341, 24 L. Ed. 659. It is contended that they sustain the view that money paid for the benefit of the city on the faith of the issue of invalid bonds may be recovered in an action for money had and re- ceived. It will be found that, in every case cited but one, the city or county or municipal corporation which issued the bonds received the money or labor or material furnished, and that it was expended in improving the property of the city or other corporation in a manner in which the city had power to improve its own property. In Hitchcock V. Galveston., suiwa^ the benefit conferred upon the city was the build- ing of sidewalks, which the city had the right to build and pay for, but which, it was found, it had no right to pay by issuing bonds. In Louisiana v. Wood the money received for the bonds was used partly by the city in payment and redemption of matured bonds and coupons and warrants of the city, lawfully issued, and part of it was deposited in the city treasury. In Parkershurg v. Brown, which is the excep- tion, the money which was received for the bonds was used to purchase land and to erect a manufacturing establishment, the operation of which it was supposed would benefit the city. The bonds were de- clared void for want of power in the city to aid private manufacturing establishments. The relief granted by the court was not to hold the city as for money had and received, but to follow the property into which the money had been put, and to sell the property, and distribute the net proceeds thereof to those with whose money the property had been purchased and improved. In Chajmian v. Douglass Co., supra, a county in Nebraska bought land upon which to erect a poor house and farm, and in payment therefor issued notes for four equal annual installments of the purchase price, and gave a mortgage to secure the payment of the notes. It was decided by the Supreme Court of the State that the county could not bind itself to pay the purchase money by notes, or to secure it by mortgage upon the property, but its power was limited to a payment in cash, and the levy of an annual tax to create a fund wherewith to pay the residue. It was held that, the contract being unauthorized only so far as it related to the time and mode of paying the purchase mone}', and the title to the land having passed by the conveyance, the county held the title as trustee for the benefit of the vendor, and that, unless the sum due on the purchase money was paid within a reasonable time, the county might be required to execute a deed releasing to the vendor all the title acquired under his deed. In Read v. City of Plattsmouth, the money paid for the bonds was used by the city of Plattsmouth in the construction of a high school building. The power of the city to issue bonds to build a high school was questioned, and by a subsequent act the bonds issued were validated by the legislature. At the time the bonds were issued it could not lawfully issue them in the amount in which they were issued. It was held that the city, having taken the money and put it into a school house, which it owned, was bound by the force of the transaction to repay to the purchaser of its void bonds the consider- SPRINGFIELD FURNITURE CO. V. SCHOOL DISTRICT NO. 4 529 ation received and used by it, or its lawful equivalent, and that, there- fore, the enabling act validating the bonds only recognized an existing moral and legal obligation, and was valid. It thus appears that in each of the cases, except Parkershurcj v. Brown, the benefit received by the municipal corporation was money paid to it or pi'operty deliv- ered into its actual possession under such circumstances that, had no express contract been attempted, a tacit contract might have been inferred. In Parkersb^irg v. Brown the money paid was followed, as in rem, into the thing bought with it. It follows that the judgment of the court was correct, and it must be affirmed, with costs. ^ SPRINGFIELD FURNITURE CO. v. SCHOOL DISTRICT NO. 4. 1899. 67 Ark. 236. Complaint in equity to prevent a county treasurer from paying the furniture company for certain school desks. ^ Wood, J. As the contract of purchase was made by only two di- rectors, and not at a regular meeting, nor at a special meeting upon notice to the third director, it is not binding. School District v. Bennett, 52 Ark. 511. Likewise the warrants were also invalid. Nevertheless, under the circumstances, the school district was not in an attitude, at the time of filing its complaint, to repudiate the contract and refuse to pay for the desks. The proof shows that the district accepted the desks, and used twenty-six of them for about one year, and did not offer to rescind the contract and to return the desks until the bringing of this suit. The director Johnson testified that he " never knew anything about a contract having been made for about a week after it was done." The contract was entered upon June 23, 1896. The suit' was brought June 30, 1897. The testimony of Johnson shows that he knew the desks had been received, and that a portion of them were being used in the schoolhouse. It is shown, therefore, that all the directors knew of the contract, and that the desks had been received, and were being used, yet no action was had by the board to annul the contract and cancel the warrants for more than a year. Such conduct must be taken as an acquiescence by the school district in the unauthorized contract made by two of its directors ; for, all the directors having notice, the district is bound in the same manner and under the same 1 See also Chelsea Sav. Bank v. Tromrood, 130 Fed. 410. * This short statement is substituted for the statement of facts by the court. — Ed. 530 EUSSELL V. THE MEN OF DEVON. rules as an Individ ual would be bound. The contract was not ultra vires. Johnson, the only director not notified in the beginning, after having notice of what was done, took no steps, so far as this record discloses, to have the board rescind or repudiate the unauthorized act of the other two directors. " If a party calls upon a court of chancery to put forth its extraordinary powers, and grant him purely equitable relief, he may, with propriety, be required to submit to the operation of a rule which always applies in such cases, and do equity in order to get equity." Fosclick v. Schall, 99 U. S. 2.53. The school district cannot insist upon the relief sought. It has not even proposed to make compensation for the use of the property Avhile . in its possession. Nor did the chancellor impose any terms whatever as a condition for granting the relief prayed. The decree is therefore reversed, and the complaint is dismissed here for want of equitj'. Battle, J., not participating. A -^^ ^ Section II. - Liability for Torts. a^^j;^^^^^ ^^ ^^^ a. General Principles of Liability. , ■ ,^^^ ^t^-'^^-yyi EUSSELL V. THE MEN DWELLING IN THE COUNTY ^^wf OF DEVON. 4-'t-W^ ^ 1788. 2 Term Reports (Durnford Sr East), &(>1?- dU^,Jsi\.4„^^ L^ This was an action upon the case against the wew dv^elling in the county L^rt^ of Devon, to recover satisfaction for an injur}' done to the waggon of the Uy\^ plaintiffs in consequence of a bridge being out of repair, which ought to have been repaired by the county ; to which two of the inhabitants, ^^^ for themselves and the rest of the men dwelling in that county, appeared, t^ U' and demurred generally. Chambre, in support of the demurrer. C^C Gibbs, contra. ' Lord "Kenton, C. J. If this experiment had succeeded, it would have been productive of an infinity of actions. And though the fear of introducing so much litigation ought not to prevent the plaintiff's re- covering, if b}' law he is entitled, yet it ought to have considerable weight in a case where it is admitted that there is no precedent of such an action having been before attempted. Many of the principles laid down by the plaintiff's counsel cannot he controverted ; as that an action would lie by an individual for an injury which he has sustained against any other individual who is bound to lepair. But the question here is, ^ Arguments omitted. — Ed. ^«^' <=v...-^>i«^ ^-r-^.o'^ 0—^ ^»*=Vj»^ J^,>^>,.t>fei^ EUSSELL V. THE MEN OF DEVON. 531 C>-v*v Whether this bod}" of men, who are sued in the present action, are a cor[>oralion, or t/ua a corporation, against wlioni siicli an action can be' mai ntained. 11' it be reasonable that they should be b}' law lial^le to such an action, recourse must be had to the Legislature for that pur- pose. But it lias been said that this action ought to be maintained by borrowing the rules of analogy from the statutes of hue and cry : but 1 think that those statutes prove the ver}' reverse. The reason of the statutejiLiL'iiiia«-was this ; as the hundred were bound to keep watch and ward, it was supposed that those irregularities which led to robbery must have happened by their neglect. But it was never imagined that the hundred could have been compelled to make satisfaction,^ till the statute gave that remedy ; and most undoubtedly no such action could have been maintained against them before that time. Therefore when the case called for a remedy, the Legislature interposed ; but they only gave the remedy in that particular case, and did not give it in anj' other case in which the neglect of the hundred had produced an injury to individuals. And when they gave the action, thej- virtuall}' gave the means of maintaining that action ; they converted the hundred into a corporation for that purpose : but it does not follow that, in this case where the Legislature has not given the remedy, this action can be maintained. And even if we could exercise a Legislative discretion in this case, there would be great reason for not giving this reraed}' ; for the argument urged by the defendant's counsel, that all those who be- come inhal)itants of the count}", after the injuiy sustained and before judgment, would be liable to contribute their proportion, is entitled to great weight. It is true indeed that the inconvenience does happen in the case of indictments ; but that is onh' because it is sanctioned by common law, the main pillar of w^hich, as Lord Coke says, is unbroken usage. Among the several qualities which belong to corporations, one is, that they ma}" sue and be sued ; that puts it then in contradistinction L^ to other persons. I do not say that the inhabitants of a county or hun- dred may not be incorporated to some purposes ; as if the king were to grant lands to them, rendering rent, like the grant to the good men of the town of Idinr/ton.^ But where an action is brought against a corporation for damages, those damages are not to be recovered against the corporators in their individual capacity, but out of their corporate estate : but if the county is to be considered as a corporation, there is* no corporation fund out of which satisfaction is to be made. Therefore I think that this experiment ought not to be encouraged ; there is no law or reason for supporting the action ; and there is a precedent against it in Brooke : though even without that authority I should be of opinion that this action cannot be maintained. AsHHURST, J. It is a strong presumption that that which never has i been done cannot by law be done at all. And it is admitted tlvat no such action as the present has ever been brought, though the occasion ■W- jU^OJU »''Vv^-t*'»i^ i wO^^'k-ttV^'X to 1 Vide ante, 1 vol. 71. 2 Wils. 92, 3. 2 Di/er, 100. 532 ANTHONY V ADAMS. ^i^^„-, , must have frequently happened. But it has been said tliat there is ^^"^ ^ I a principle of law on which this action may be maintained, namely, '; that where an individual sustains an injury by the neglect or default of I another, the law gives him a remedy. But there is another general principle of law which is more applicable to this case, that it is better that an individual should sustain an injur}- than that the public should , sutt'er an inconvenience. Now if this action could be sustained, the \\ y.^it^r^l public would suffer a great inconvenience ; for if damages are recover- ,..» I able against the county, at all events thej' must be levied on one or two i individuals, who have no means whatever of reimbursing themselves ; [ for if they were to bring separate actions against each individual of the county for his proportion, it is better that the plaintiff should be without remedy. However there is no foundation on which this action can be supported ; and if it had been intended, the Legislature would have interfered and given a remed}', as they did in the case of hue and cr}*. Thus this case stands on principle : but I think the case cited from JiroJce's Abridgement is a direct authority to shew that no such action can be maintained ; and the reason of that case is a good one, namely, because the action must be brought against the public. BuLLER, J., and Grose, J., assented. Judgment for the defendants. 1840. \ Met. {Mass.) 'IM. ""^^V^ -^^ ^^»A ANTHONY V. ADAMS. . Q-u ANTHONY V. ADAMS. 533 f One question fliscussed was, whether an action sounding in tort would lie against a municipal cori)oration. We can have no doubt, that an action up on t he case will lie against munici[)al corporations, when~ such corporations are in tlie execution of powers conffiic d on \ ^ \i fllem, or ia the uerforiuauce of duties required of them hv law, and tlTeli' officers, servants and agents, shall perform their acts sf) carclcsslv, tiiiskilfirtlvor impro[)erly, as to ""cause damage to others. This falls wTEhin the very general principle, that the superior or employer shall be answerable civiliter for the mismanagement and negligence of the agent employed by him, bj' which another is damnified. Sutton v. Clarke, 6 Taunt. 29. And although such action sounds in tort, to mark the distinction between this and an action upon contract ; yai the true view of considering it, is that of a legal liabilitv to indemnifv another against negligence of one for whom the law holds him respon- sible. It implies no wilful act, or intended wrong, and, therefore, requiring no vote or corporate act to create the liability, it may as well lie against a corporation as an individual person. We think it stands on the same footing on which it is now held, both in this country and in England, contrary to the ancient notions on that subject, that cor- porations may be liable on implied promises raised b}' law from their \ Yy^ legal liabilities. Gray v. Portland BaiiJc, 3 Mass. 364. Bank of ^\ Columbia v. Patterson, 7 Cranch, 299. Clark v. Mayor, d'c. of TVashi)i(/t07i, 12 Wheat. 40. Beverley v. Lincoln Gas Light Band Coke Co., 6 Adolph. & Ellis, 829. But where individuals, although professing to act under color of authority from municipal corporations, ao acts which are injurious to others, if the objects and purposes which they propose to accomplish, are not within the scope of the corporate v\jd'^ powers of towns, and not done in the execution of any corporate duty imposed upon the town by law, the town is not liable for the damages occasioned b\' such acts. Were it otherwise, towns might be rendered responsible upon implied liabilities, in cases where the}' could not bind themselves, as a corporation, bj- an express vote of the inhab- itants. For, it is now well settled that a town, in its corporate capa- cit}', will not be bound, even by the express vote of a majority, to the performance of contracts, or other legal duties not coming within thel scope of the objects and purposes for which the}' are incorporated. Stetson v. Kempton, 13 Mass. 272. Norton v. Mansfield, 16 Mass. 48. Parsons v. Goshen^ 11 Pick. 396. Looking at the declaration in the present case, it is not shown thatl }v« C^-ft•^ the t own was under an}' obligation, in its corporate capacity, to erect 1 'Cwk-* -H' and build this highway, or that the dam complained of was a part of | iDsxv^*' the highway, or that the damage complained of resulted from the neg- ligence of the agents and officers of the town, in the performance of any corporate duty. The court are, therefore, of opinion that tha action cannot be maintained. ^-^i^j^^sTO , 9-r,.J: .>. ., . v^ 5'^5^<.^^3f/^C)) 534 HILL V. BOSTON. HILL V. BOSTON. 1877. 122 Mass. 344. S^A istoi Gray, C. J.^ This is an action of tort against the city of B^ The plaintiff, who sues by his next friend, offered to prove at the trial that in May, 1874, he was of the age of eight years, and was a pupil at- tending a school in Boston, which was one of the public schools which the city was bound by law to keep and maintain ; that this school was on the third floor of the building in which it was kept; that the stair- case was winding, and the railing thereof so low as to be dangerous ; that the city negligently constructed and maintained the building, and authorized the public schools to be kept therein ; and that the plain- tiff, while going to school, and being in the exercise of due care, fell over the railing of the second flight of stairs, and was seriously injured. We had supposed it to be well settled in this Commonwealth thatjio private action, unless authorized by express statute, can be maintained against a city for the neglect of a public duty imposed upon it by la\v_ for the benefit of the public, and from the performance of which th;^ TJorporation receives no profit or advantage. But, it having been sug- gested at the argument that the recent opinions of the Supreme Court of the United States tended to a different result, the respect due to that high court, even in matters in which we are not bound by its deci- sions, has led us to reexamine the foundations upon which our law rests, and, in stating our conclusion, to make fuller reference to the au- thorities than might under other circumstances have been thought expedient. The question has most commonly arisen in actions for defects in high- ways and bridges, by reason of which persons passing over them have received injuries. N^*^ - Although the English books contain numerous cases of indictments or informations for neglect to repair highways and bridges, no instance has been referred to, in the frequent discussions of the subject in England and in this country, in which an English court has sustained a private action against a public or municipal corporation or quasi corporation for such neglect, except under a statute expressly or by necessary implication giving such a remedy. h. The towns and cities of Massachusetts have been established by the Legislature for public purposes and the administration of local affairs, and embrace all persons residing within their respective limits. 1 Part of the opinion omitted. — Ed. o3fcu. .^*- -c/ kC-^/^ so far as the right to maintain such an action has been clearly given by ,ljJ ju^^*- statute. Brady v. Lowell, 3 Cush. 121. Harivood v. Loioell, 4 Cush. ^/V^ 310. Hixon V. Lowell, 13 Gray, 59, 64. Olii-ery. Worcester^ 102 Mass. x''^^ 489. The same view has been taken in other New England States, r and in New Jersey, Michigan and California. Morgan v. Hallowell^ 51 Maine, 375, 378. Jones v. New Haven, 34 Conn. 1, 13. Ileiclson V. New Haren, 37 Conn. 475. Praij v. Jersey City, 3 Vroom, 394. Detroit v. Blackehy, 21 IMich. 84. Winbigler v. Los Angeles, 45 Cal. 36. Neither the act which originally established the city of Boston, St. 1821, c. 110, nor the act to revise the city charter, St. 1854, c. 448, contains any provision as to the duty of the city to repair highways, or to provide school-houses. Each of these duties depends upon gen- eral laws, applicable to all cities and towns alike. As to highways, ^ the duty is regulated by the Gen. Sts. c. 44, §§ 1, 21, 22. The duty^ as to school-houses is governed by the Gen. Sts. c. 38, § 36, which en- ' act that " every town, not divided into school-districts, shall provide ' and maintain a sufficient number of school-houses, properly furnished and conveniently located, for the accommodation of all the children therein entitled to attend the public schools." This enactment, by virtue of c. 3, § 7, cl. 17, includes cities as well as towns. The only remedy which the statutes give for refusal or neglect to comply with its requisitions is by indictment. St. 1871, c. 145. Assuming, therefore, that the form of the staircases of school-houses is not left exclusively to the discretion of the city, and that the negli- gence offered to be proved at the trial might be a cause of indictment, it is quite clear that, according to the statutes and decisions in this Com- monwealth, it affords no ground of private action against the city. But it may be convenient, in this connection, to distinguish some of the principal cases in which this court has held cities liable to actions of tort by individuals. If a city or town negligently constructs or maintains the bridges or culverts in a highway across a navigable river, or a natural water- course, so as to cause the water to flow back upon and injure the land of another, it is liable to an action of tort, to the same extent that any corporation or individual would be liable for doing similar acts. Ari' Ifiony V. Adams , 1 Met. 284, 285. Lawrence v. Fairhat-en, 5 Gray, 110. Perry V. Worcester, 6 Gray, 544. Parker v. Lowdl, 11 Gray, 353. ^Vlleeler v. Worcester, 10 Allen, 591. So if a city, by its agents, A without authority of law, makes or empties a common sewer upon the property of another to his iujuiy,it is liable to him in an action of tort. i^-* C-Or-a_< i-^0^^"^ ►-«»-'• ,\- •^ V ;.*v^«/v»> MpA-t-v«J^ dt^^"-*^ l-ofc. 538 HILL V. BOSTON. I Propi'ietors of Locks & Canals v. Loivell^ 7 Gray, 223. Hihlreth v. Lowell, 11 Gray, 345. Haskell v. JVeio Bedford, 108 Mass. 208. But in such cases, the cause of action is not neglect in the performance of a corporate duty, rendering a public work unfit for the purposes for which it is intended, but it is the doing of a wrongful act, causing a direct injury to the property of another, outside of the limits of the public work. As to common sewers, built by municipal authorities under a power conferred by law, it has been held, upon great consideration, that, as the power of determining where the sewers shall be made involves the exercise of a large and quasi judicial discretion, depending upon considerations affecting tlie public health and general convenience, therefore no action lies for a defect or want of sulficiencyjn the plan or sy stem of draiuageliclopted" within the authority so c<>iif(_Mi\M] ; luit that, as til e sewer acts were not made applicable to any city, unless accepted by it, and, when accepted, and the sewers built, vested in the city the property in the sewers, and authorized it to assess the expense of construction upon the lands immediately benefited, and as the duty pf constructing the sewers and keeping them in repair was merely ministerial, therefore, for neglect in the construction or repair of any particular sewer, whereby private property was injured, an action might be maintained against the city. Gen. Sts. c. 48. Sts. 1841, c. 115; 1857, c. 225; 1869, c. 111. Cldld v. Boston, 4 Allen, 41. Emery v. Lowell, 104 Mass. 13. Merrifield \. Worcester, 110 Mass. 216. The only other cases in Massachusetts, which need be mentioned, are those in which a city, holding and dealing with property as its own, not in the discharge of a public duty, nor for the direct and immediate use of the public, but for its own benefit, by receiving rents or other- wise, in the same way as a private owner might, has been held liable, to the same extent as he would be, for negligence in the management or use of such property to the injury of others. Tliayer v. Boston, 19 IMck. 511, Oliver v. Worcester, 102 Mass. 489. The distinction between acts done by a city in discharge of a public^cluty, and acts" done foFwliat has been called, by way of distinction, its private ad- vanla^" "or" emolument^ has been clearly pointed out by two eminent judges,'while sitting in the supreme courts of their respective states, who have since acquired a wider reputation in the Supreme Court of the Union, and by the present Chief Justice of England. Nelson, €. J., in Bailey v. Mayor, &c. of New York, 3 Hill, 531, 539. Strong, J., in Western Saving Fund Society v. Philadelphia, 31 Penn. St. 185, 189. Cockburn, C. J., in Scott v. Mayor, &c. of Manchester, 2 H. & N. 204, 210. The English authorities uniformly hold that a county, town or parish being liable at common law to indictment only, and not to action, for neglect to repair a highway, therefore, when the duty to repair, which before rested upon the county, town or parish is transferred in •T'-r.^ A-,., , \)^_-«i''V<>p .. C*r^ ' -^ / l.-^<,<^„4A^ HILL V. BOSTON. 539 by statute to a public officer, or to a municipal corporation or a board incorporated for tlie purpose, such ofllcer or corporation is no more liable to private actiou tiian the county, town or parish previously was, unless the statute transferring the duty clearly manifests an intention in the Legislature to impose the additional liability. The result of the English authorities is, that when a duty is imposed upon a municipal corporation for tlie benefit of the public, without any consideration or emolument received by the corporation, it is only where the duty is a new one, and is such as is ordinarily performed by trading corporations, that an intention to give a private action for a neglect in its performance is to be presumed. ^j^' The result of this review of the American cases may be summed up as follows: There is no case, i n which the ne<:lcct of a duty, imposed by general law~u ]X)n all cities and towns alike, has been held to sustain an actiou "l)y person injured thereby against a city, when it would not agatiTst aTowTrr^'The only decisions of the state courts, in which the meregrairt' by the Legislature of a city charter, authorizing and requir- ing the city to perform certain duties, has been held sufficient to render the city liable to a private action for neglect in their performance, when a towm would not be so liable, are in New York since 1850, and in Illi- nois. The cases in the Supreme Court of the United States, in which private actions have been sustained against a city for neglect of a duty imposed upon it by law, are of two classes: 1st. Those which arose under the peculiar terms of special charters, in the District of Columbia, as in Weiglitman v. Washiiif/ton and Barnes v. District of Columbia, or in a territory of the United States, as in Nebraska City v. Campbell. 2d. Those which, as in Ma>jor^ &c. of Nem York v. Sheffield, and Chicago City v. Bobbins, arose in New York or in Illinois, and in which the general liability of the city was not denied or even discussed, and apparently could not have been, consistently with the rule by which the Supreme Court of the United States, upon questions of the construction and effect of the Constitution and statutes of a state, fol- lows the latest decisions of the highest court of that state, even if like words have been differently construed in other states. Elmen- dorfy. Taylor, 10 Wheat. 152, 159. C/iristy v. Fridgeon, 4 Wall. 196. Riclimond v. Smith, 15 Wall. 429. Tioga Railroad v. Bloss- hurg & Corning Railroad, 20 Wall. 137. State Railroad Tax Cases, 92 U. S. 575, 615. In the absence of such binding decisions, we find it difficult to reconcile the view, that the mere acceptance of a mu- nicipal charter is to be considered as conferring such a benefit upon the corporation as will render it liable to private action for neglect of the duties thereby imposed upon it, with the doctrine that the purpose of the creation of municipal corporations by the state is to exercise a part of its powers of government — a doctrine universally recognized, and 540 WALCOTT V. INHABITANTS OF SWAMPSCOTT. which has nowhere been more strongly asserted than by the Supreme Court of the United States, in the opinions delivered by Mr. Justice Hunt, in United States v. Railroad Co. 17 Wall. 322, 329, and by Mr. Justice Clifford, in Laramie v. xilhany, 92 U. S. 307, 308. But, however, it may be where the duty in question is imposed by the charter itself, the examination of the authorities confirms us in the conclusion that_a_duty, which is imposed upon an incorporated city, not by the terius of its charter, nor for the profit of the corporation, pe- cuniarily or otherwise, but upon the city as the represeutative aud agent of the public, and for the public benefit, and by a general law applicable to all cities and towns in the Commonwealth, and a breach of which in the case of a town would give no right of private action, is a duty owing to the public alone, and a breach thereof by a city, as by a town, is to be redressed by prosecution in behalf of the public, ' and will not support an action by an individual, even if he sustains special damage thereby ; and, according to the terms of the report, there must be Judgment for the defendant. WALCOTT V. INHABITANTS OF SWAMPSCOTT. ^^M^^ 1861. 1 Allen {Massachusetts), 101. ^-sJl ^^"^^ Tort for an injury received upon a highway from a collision witn a r^ cart driven by one O'Grad}', a laborer employed by a highway sun-gyor 'u of Swampscott to aid in repairing a highway. At the trial in the i^J superior court, upon the facts proved, the defendants requested the , -v court to rule that they were not liable for the acts of O'Grady ; but ^V WilMnsofiy J. instructed the jury that if O'Grady was driving the < / horse and cart with which the plaintiff came in collision, with a load of gravel for the repair of the highway, and was employed so to do by the '^ surveyor of the town, and the collision was caused solely by O'Grady's '^^ want of care in driving the horse and cart, the defendants were liable. "-^ ^ A verdict was found for the plaintiff, and the defendants alleged w, exceptions. (n J. A. Gillis, for the defendants. * J. W. Perry, {A. B. Almon with him,) for the plaintiff. ^ BiGELow, C. J. We cannot distinguish this case from Hafford v. U City of New Bedford, 16 Gray, 297. It was there held, that where ^ y^' rux \ ^' ^ V by the state, though usually associated with and appointed by the mu- nicipal body. The nature of the duties as public are the same in either ease." In McGinnis v. Inhabitants of Medivaij, supra, it was held that the municipality was not liable for the acts of a liquor-licensing board consisting of the selectmen of a town. In Mead v. City of New Haven, supra, the city, under power conferred by its charter, appointed an inspector of steam boilers and provided through a by-law that no one should use such a boiler until it had been tested by the inspector. It was held that the city was not liable for negligence of such inspector, the court saying : " The city must, we think, be regarded as the agent of the irovernment, and acting for the state and not for itself in making the appointment of inspectors, and therefore not liable for the in- spector's negligence." It can make no difference that the board was charged with the enforcement of municipal ordinances.. The same is true of police commissions, excise boards, boards of health, and the like, as to which it is settled no liability attaches to the municipality. The ordinances which the board was constituted to carry out were enacted under authority of the state in furtherance of the police power of the state. The matters provided for might have been covered by general statute, and put in charge of general state officers, had the legislature so preferred. It is contended that the city should be held for the reason that it afterwards ratified and adopted the wrongful acts of the board. The acts in question were not within the scope of the authority of the gen- eral municipal ofHcers, and we do not see how they could do by ratifi- cation what the statute confided to other and independent officers. The enforcement of building ordinances was for the board, not the city, and the city could not enforce them by adoption or ratification, any more than in the first instance. Calivellv. City of Boone, 5 1 la.. 687, 2 X. W. Rep. 614, 33 Am. Eep. ld4^Petel-s v. CJty of Linds- borg, 40 Kan. 654, 20 Pac. Rep. 490. In City of Omaha v. Crofty 60 Nebr. 57, the acts complained of were in the line of the city's authority, and done by virtue of an ordinance providing therefor. The city had the power to do them in the first instance, and could ratify and adopt them when done by others. We recommend that the judgment be affirmed. Barxes and Oldham, CC, concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed. <^3^ J UtT-^. ^ ^a,-. -> k/vv' ^^ \A o>? f n^: O'jjt^- i/^ \^:»^ EELER V. GILSUM. GILSUM. 545 WHEELER 73 N. H. 429. Case, for negligence, March 2, 1902, the plaintiff owned and oc- cupied a sawmill on the bank of the Ashuelot river. On that day an ice jam in the river above the mill caused the water of the stream, in- creased by surface water accumulating from rain and melted snow, to overflow a highway in the town of Gilsum, preventing travel thereon. A highway agent of the town, under the direction and control of one of the selectmen, went upon the river outside the highway and at- tempted to break up the ice with dynamite, so that the water might drain otT from the highway. The work was negligently done, with the result of increasing the water in the highway above the jam and of weakening the ice so that it subsequently broke up, and the water and ice flooded, crushed, carried away, and practically destroyed the plaintiff's mill. The town, through its oflScers and citizens, had no- tice of, and could have removed, the danger to the plaintiff's property created by the negligent attempt to break up the ice. The expense of what was done was paid by the town. The plaintiff was without fault. After the opening statement by plaintiff's counsel of the grounds upon which recovery was claimed, in substance as above set forth, a nonsuit was ordered, and the plaintiff excepted. Transferred from the October term, 1904, of the superior court by Peaslee, J. Parsons, C. J. In_ rejmiring the highway under the direction of the selectmen (Laws 1897, c. 67, s. 1), the highway agent was a public officer, for whose negligent acts in the performance of his duty the town is not liable. O'Brien v. Derry, 73 N. H. 198 ; Hall v. Concord, 71 N. H. 367; Doicnes v. Hopkinton, 67 N. H. 456; Wakefield v. Neiuport, 62 N. H. 624; Grimes v. Keene, 52 N. H. 330. The principle under which a town may be liable for an injury to private property rights by an abuse of its possessory right in the highway — permitting an unreasonable use of the land to the Injury of another {Clair v. Mundiester, 72 N. H. 231 ; Flanders v. FranJclin, 70 N. H. 168; Gllman v. Laconia, 55 N. H. 130) — has no application. The plaintiff's injury was not occasioned by an un- ~feasouable use of the town's proi)erty right, made or permitted by the town. The dangerous condition in the river was due to natural causes, or to their action combined with the negligence of public officers. These causes created a nuisance which threatened alike the property of the town and that of the plaintiff. The nuisance was not within the highway, nor was it connected therewith in any way. It did not c"onsist in anything appurtenant to tlie highway, which the town used for the benefit of its highway property, though without the limits of the highway. If the town could rightfully go without the limits of the 546 MILLS V. CITY OF BROOKLYN. high-way to abate the nuisance created by the elements and the action of the highway agent, which threatened injury to its highway property, and would be liable to the plaintiff for an injury resulting from a neg- ligent exercise of such right by the town, the power to abate such nuisance was merely a right which the town had for its own benefit — not a duty imposed upon it for the benefit of the plaintiff. As no duty rested with the town to act for the protection of the plaintiff, its failure merely to take action is not actionable negligence. Bach v. Company, 69 N. H. 257 ; McGill v. Granite Co., 70 N. H. 125.i Exception overruled. All concurred. O .^ MILLS V. CITY OF BROOKLYN^ *^**''^-w3^^"-M>v 1865. 32 New York, 489.^ '^^^^^<$J/'*''''^ ^ Denio, C. J. . . . The grievance of which the plaintiffs complain, isSy p> that suflficient sewerage to carrj- otf the surface water from their lot and ^ house has not been provided. A sewer of a certain capacity- was built, but it was insufficient to carry off all the water which came down in a rain storm, and the plaintiffs' premises were, to a certain extent, unprotected. Their condition was certainly no worse tlian it would have been if no sewer at all had been constructed. So far as the one laid down operated, it relieved the plaintiffs' lot ; l)ut the relief was not adequate. If the defendants would have been liable if they had done nothing, they are of course liable for the insufficient character of the work which was constructed. But it is not the law that a municipal corporation is responsible in a ])r]vate action for not providing sufficient sewerage for every, or for any Ijart of the^city or yjllagg. The duty of draining the streets and ave- nues of a city or village, is one requiring the exercise of deliberation, judgment and discretion. . It cannot, in the nature of things, be so executed that in ever}' single moment every square foot of the surface shall be perfectly protected against the consequence of water falling 'from the clouds upon it. This duty is not, in a technical sense, a judi- cial one, for it does not concern the administration of justice between citizens ; but it is of a judicial natiixe, for it requires, as I have said, the same qualities of deliberation and judgment. It admits of a choice of means, and the determination of the order of time in which improve- ments shall be made. It involves, also, a variety of prudential con- siderations relating to the burdens which may be discreetly imposed at a given time, and the preference which one locality may claim over 1 See Buh,er v. Eden, 82 Me. 352, 19 AtL 829, 9 L. R. A. 205 ; 3Iurph>/ v. Needham, 17G .Mass. 422, 67 N. E. 689. '■^ btatemeut8 and arguments omitted ; also portions of opinion. — Ed. MILLS V. CITY OF BROOKLYN. 547 another. If the owner of property may prosecute the corporation on the ground that sufficient sewerage has not been provided for his prem- ' "^ ises, all these questions must be determined by a jury, and thus the 0^^ )j judgment which the law has committed to the city council, or to an '^'^)^/>*/K administrative board, will have to be exercised by the judicial tribunals. ' - ' ^ The court and jur}' would have to act upon a partial view of the ques- tion, for it would be impossible that all the varied considerations which might bear upon it could be brought to their attention in the course of a single trial. Such a system of law would be as vexatious in prac- tice as it is unwarranted in law. It has been frequently invoked, but never, I believe, with success. It ma\', therefore, be laid down as a very clear proposition, that if n o se wer had been constructed at the locality referred to, an actiorT would not lie against the corporation, though the jur}- should find that ^iie w'as necessarv, and that the defendants were guiltj' of a dereliction of duty in not having constructed one. ' But the defendants put down a sewer which was insufficient to carry- off all the surface water which fell during a violent sliower. There was no want of skill in constructing it; simply it was not sufficiently large- The evidence was that it could not have been made larger on account of the grade and size of the system of sewers with which it connected, and through which the water had to be carried off. The evidence as to this was entirely uncontradicted ; and there was nothing intrinsic- ally improbable in the assertion. Unless the defendants were respon- sible for the want of judgment upon which that system was devised, I do not see wh}' this evidence was not a complete answer to the action ; and that the}- were not responsible for that, follows from what has already been said. Very man\- considerations besides the protection of the land upon which the plaintiffs' house was erected, no doubt entered into the question when that system was determined upon. It is inferable from the evidence that the plaintiffs' land was then vacant and unimproved, and that the adjacent streets had not been graded. While that state of things existed it was seen that the surface water was absorbed by the earth, and injured no one. No doubt public improvements, in a growing town, ought to be made with a ceitain reference to anticipated changes. But it would require a degree of wisdom an:i foresight not usuall}' met with in public offi'jers, to adjust and appl} the expenditures for public purposes so perfecth* that no deficienc}" or redundanc}' would ever be found to exist. It is a wise provision of the law that an action for damages does not lie for such errors of judgment on the part of the agents "of the public. [Certain authorities referred to] are all cases where the injurj' was either the result of suffering a municipal work to be out of repair, or where the defendants had done acts which were in themselves positive nuisances. Thej* furnish no ground for holding a municipal corpora- 548 ASHLEY V. CITY OF PORT HURON. tion responsible for not providing suitable sewerage, whether the neg- lect was total, or partial onh*, arising from the insufficiency of a sewer to discharge all the water which it was intended to carry otf. The questions in this case were raised by the motion to dismiss, on account of the insufficienc}' of the complaint, which did not, according to the foregoing views, set forth a cause of action, and by one of the points taken at the close of the trial. I am in favor of reversing the judgment of the Supreme Court [which was in favor of plaintiff], and ordering a new trial.^ Judgment reversed and new trial ordered. Jl ^_^ "^ ASHLEY V. CITY OF PORT HURON. 1877. 3.5 Michigan, 296.2 CooLET, C. J. The action in this case was instituted to recover damages for an injury- caused to the house of the plaintiff b}' the cut- ting of a sewer under the direction of the cit}' authorities, and under city legislation, the validity of which is not disputed. The necessary result of cutting the sewer, the plaintiff claims, was, to collect and throw large quantities of water upon his premises which otherwise would not have flowed upon them ; and it is for an injury thereb}' caused that he sues. The evidence offered on the part of the plain- tiff tended to establish the case he declared upon, but the court instructed the jury that though ihey should find the facts to be as the plaintiff claimed, they must still return a verdict for the defendant. The ground of this decision, as we understand it, was, that the city, in ordering the construction of the sewer and in constructing it, was act- ing in the exercise of its legislative and discretionary authority, and was consequent!}' exempt from anv liability to persons who might happen to be injured. Tiiat is the ground that is assumed by counsel for the city in this court, and it is supposed to be the ground on which the case was decided in the court below. In Pontiac v. Garter, 32 Mich., 164, the question of the liability of a municipal corporation for an injury resulting from an exercise of its legislative powers was considered, and it was denied that any liability could arise so long as the corporation confined itself within the limits of its jurisdiction. That was a case of an incidental injury to property caused b\' the grading of a street. The plaintiff's jDremises were in no~" way invaded, but the}' were rendered less valuable by the grading, and there was this peculiar hardship in the case, that the injury was mainly or whollj' owing to the fact that the plaintiff's dwelling had been erected 1 See Chicafjo v. Sehen, 165 111. 371, 46 N. E. 244, 56 Am. St. Rep. 245 ; Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573, 105 Am. St. Hep. 187 ; Hart v. Millsville, 126 Wis. 546, 104 N. W. 699, 1 L. R. A. N. S. 962. 2 Citations of counsel omitted. — Ed. i\ ^ ^ySi^X^^^^ ASHLEY V. CITY OF PORT HURON. 549 with reference to a grade previously established and now changed. In the subsequent case of Citi/ of Detroit v. Beckman, 34 3Iic...^ 125, the same doctrine was reaffirmed. That was a case of injur\' b}' being over- turned in a street in consequence of what was claimed to be an insuffi- cient covering of a sewer at a poi*:^ where two streets crossed each other. It was counted upon as a case of negligence, but the negligence consisted only in this, that the cit}' had failed to provide for covering the sewer at the crossing of a street for such a width as a proper re- gard for the safety of people passing along the street would require. If this case is found to be within the principle of the cases referred to, the ruling below must be sustained, and that, we think, is the only question we have occasion to discuss. The cases that bear upon the precise point now involved are numerous. In Rochester White Lead Co. v. Rochester, ^ JST. Y., 463, the city '^^^^^K^ was made to respond in damages for flooding private premises with l;-*^'***^'*^ waters gathered in a sewer. This case is commented on in Mills v. ^*'"*'^ ^T^oaJclyny 32 iVi Y., 489, and distinguished from one in which the in-" jury complained of a/ose from the insufficiency of a sewer which was constructed in accordance with the plan determined upon. Obviously the complaint in that case was of the legislation itself, and of incidental injuries which it did not sufficiently provide against. The like injuries might result from a failure to construct any sewer whatever ; but cleailj' no action could be sustained for a mere neglect to exercise a discretion- ary authorit}'. — Compare Smith v. Mayor, etc., % N'. Y. Sup. Ct. ., (T. t& C), 685 ; 4 Hun, 637 ; Mms v. Mayor, etc., 59 JV. Y., 500./ -foM^ V* Cases of flooding lands b^' neglect to keep sewers in repair, of which J^rtUlwM, ' Bartonv. Syracuse, 37 Barb., 292, and 36 iV". Y., 54, is an instance, J'j^c**^ are passed hy, inasmuch as it is not disputed b}- counsel for the defend-i ant in this case that for negligent injuries of that description the corpo- ration would be responsible. Those cases are supposed by counsel to be distinguished from the one before us in this : that here the neglect complained of was onl}- of a failure to exercise a legislative function, and thereby provide the means for carrying off the water which the sewer threw upon the plaintiff's premises. The distinction is, that the obligation to establish and open sewers is a legislative duty, while the obligation to keep them in repair is ministerial. But it^is not strictly the failure to construct sewers to carr}' off the water that is com- plained of in this case ; it is of the positive act of casting water upon the plaintiffs premises b}' the sewer already constructed. [After citing cases where an action like the present was sus- tained.] It is \Qvy manifest from this reference to authorities, that the)- recog- nize in municipal corporations no exemption from responsibility where the injury an individual has received is a direct injury accomplished by -a*5 C*. '[^ t-M 550 KEVINS V. CITY OF PEORIA. a corporate act which is in the nature of a tres])ass upon him. The right of an individual to the occupation and eujoyment of his premises is exclusive, and the pubhc authorities have no more libert}' to trespass upon it than has a private individual. If the corporation send people with picks and spades to cut a street througli it without first acquiring the right of wa}', it is liable for a tort ; but it is no more liable under such circumstances than it is M'hen it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable, and no more an actionable wrong, than the otlier. Each is a trespass, and in each in- stance the cit3- exceeds its lawful jurisdiction. A municipal charter never gives and never could give authoritj' to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner's possession. His property right is appropriated in the one case as much as in the other. — PumpeUy v. Green Bay Co., 13 Wcill.^ 166 ; Arimond v. Green Bay, etc., Co., 31 Wis., 316 ; Eaton V. B. C. d M. li. B. Co., 51 JSF. H., 504. A like excess of jurisdiction appears when in the exercise of its powers a municipal corporation creates a nuisance to the injury of an individual. The doctrine of liability in such cases is familiar and was acted upon in Pennoyer v. Saginaw, 8 Mich., 534. • •••• ■•• Judgment reversed. New trial ordered.^ S 4- NEVINS V. CITY OF PEORIA. 1866. 41 Illinois, 502, pp. 508, 509, 511, 512, 515 Lawrence, J. . . . The cit}* is the owner of the streets, and legislature has given it power to grade them. But it has no more power over them than a private individual has over his own land, and 4 ^. ' it cannot, under the specious plea of public convenience, be permitted ^ to exercise that dominion to the injur}- of another's property in a mode ^^^ that would render a private individual responsible in damages, without -^tc^ being responsible itself. Neither State nor municipal government can /^ take private property for public use without due compensation, and'"^\^ this benign provision of our Constitution is to be applied by the courts ^*l/ whenever the property of the citizen is invaded, and without reference ^ to the degree. We can solve more easily- and safel}- questions of this /^ ^ character if we take pains to free our minds from the false notion that a municipality has some indefinable element of sovereign power "O^ 1 See Bates v. Wesihorou^h , 151 INIass. 174, 23 X. E. 1070, 7 L. R. A. 156 ; King r. Granger, 21 H. I. 93. 41 Atl! 1012, 79 A. S. R. 779 ; Piatt v. Waterbury, 72 Conu, 531, 45 Atl. 154, 48 L. R. A, 691; Uppington v. New York, 165 N. Y. 223. NEVINS V. CITY OF REOPIA. 551 which takes from the propert}- of the citizen, as against its aggressions, the protection enjoyed against the aggressions of a natural person. *• ••••• • It is said that the city must grade streets and direct the flow of waters as best as it can for the interests of the pul)lic. Undoubtedly, but if the public interest requires that the lot of an individual shall be rendered unfit for occupancy, either wholly or in part, m this process of grading or drainage, why should not the public pay for it to the extent to which it deprives the owner of its legitimate use? Why does not the constitutional provision apply as well to secure the payment for property partially taken for the use or convenience of a street, as when wholly taken and converted into a street? Surel y the question of the degree to which the property is taken can make no difference in the application of the principle. To the extent to which the owner is deprived of its legitimate use and as its value is impaired, to that extent he should be paid. There is much conflict of authority upon this question, and those courts which have taken a view different from our own, rest their con- clusions in part upon the doctrine of public necessity, aiid the impor- tance of preserving unimpaired, for purposes of pubUc improvement, the efficiency' of municipal corporations. In our opinion, the theory that private rights are ever to be sacrificed to public convenience or necessity, without full compensation, is fraught with danger, and should find no lodgment in American jurisprudence. To prevent this was the object of some of the most important of our constitutional guaranties. The property of the majority who control the government is in no peril ; it is that of a feeble minority which is in danger, and when- ' "^ ever that is sought to be taken in a time of peace, under pretense of ^ public necessity or convenience, the owygr must find protection in the . y^,v/^>— ^^. 552 KEASY V. CITY OF LOUISVILLE. be sacrificed for the public convenience without compensation. Wo do not think it sufficient to call it dammim absque injuria. We know our Constitution was designed to prevent these wrongs. We are of opinion, that, for injuries done to the property of the appellant in the case before us, b}' turning a stream of mud and water upon his prem- ises, or by creating in the immediate neighborhood of his dwelling an offensive and unwholesome pond, if the jury find these things to have been done, the city of Peoria must respond in damages. KEASY V. CITY OF L0UISVILLE7 1836. 4 Dana {Kentucky), 15-t. From the Circuit Court for Jefferson County. Nicholas, for plaintiff. Guthrie., for defendant. Robertson, C. J. Daniel Keasy, owning a lot on Jefferson streetf, in Louisville, on which he had erected a small wooden house, since that street had been graded and paved, under tlie charter of incorporation j of 1828 — sued the city, in an action on the case, for elevating the "-tt, grade about tliree feet above the level of his lot, after he had thus im- 'A^ proved it, correspondently with the first grade, in consequence of which y^ be had, as he avers, to fill up his lot and reconstruct his house, and had ^ been, in other respects, subjected to inconvenience and damage. ^^ i The facts, as alleged, having been proved on the trial, on the general -Q" issue, the court instructed the jury that, if the}- should believe, '^ from ^ all the evidence, that the Mayor and councilmen of the city of Louis- ^Mi villc had the street filled or raised for the purpose of carrying off the a water in that part of the cit}-, and the injury complained of arose from u filling or raising, they ought to find for the defendant." Verdict and judgment were accordingly renderefTTh bar of the action. And it is that judgment which the plaintifl^" in error now seeks to reverse. The constitutional power to incorporate the citizens of Louisville into a municipal bod}' politic, possessing, as everv artificial as well as natu- ral being ought to possess, a self-will and the faculty of acting, of regu- lating its own affairs, and of governing its constituent members, as far as may be consistent with its charter, the federal and state consti- tutions and the general laws of the Commonwealth, and as ma}' be proper for effectuating the legitimate ends of its creation, has been con- ceded by the plaintifi" in error, in the fact of suing the corporation, and has, also, been necessarily presupposed by the Circuit Judge, in giving his hypothetical instruction to find for the Citi/ as defenchint. And, not doubting eitlier the power of incorporating the city, or the incidental KEASY V. CITY OF LOUISVILLE. 553 'YjUL<< V — corporate right, either inherent, or derived from legislative authoriza- tion, to grade and pave the streets of the city, we are, also, of the t /» Jr ^-^^*-d opinion, that the corporation had aiitliority to regrade and pave Jeffer- ^ son street, or any otlier street, whenever the municipality might have deemed such an improvement useful to the local public. The power of the Commonwealth over the streets, as well as over the local police, having been, not alienated, but delegated, or rather de- ferred^ to the city itself it was not material to tiie legal authority of fhe order for changing tiie grade of Jefferson street, that such a change was, in fact, necessary for draining water or for any other purpose. The city decided that it was proper — and personal inconvenience or I Ca^Iw^ ^■^^ private judgment, however repugnant to the policy of re-grading, could i not have aflected the legal validity of the order. But the public right to regulate the common highwa3-s of the city, is, of course, not arbitrary and unlimited : far from it. Private rights must be regarded. The public, like a common person, must so use its owa as not to injure another's property. It cannot take private property for public use, without paying a just equivalent ; nor can it disturb any personal right of enjoyment. But, without touching the plaintilf's lot, or in an}' way encroaching upon it, or interfering with any prescriptive right, to light, or to private wa}', the city had as clear and perfect ou- thorit}' to raise its street higher, or sink it lower, than the level of his lot, as he would undoubtedl}' have had to elevate or sink his groUTid, without touching or otherwise injuring or interfering with the public street. On the trial of the case, there was no evidence tending, in an}- de- gree, to show, that the plaintiff's lot had been intruded on or touched; or that the elevation in the grade of the street caused water to run or remain upon it, or rendered it less salubrious, or divested him of an}' I vested right, or unjustly obstructed the enjoyment of any such right ; and mere inconvenience, to which, in his opinion or in fact, a public improvement in his city may have subjected him, is not sufficient joer se to entitle him to damages. Every citizen takes and holds private prop- erty in land subject to the paramount puldic rights, and to the contin- gency of adventitious enhancement or diminution in value, resulting from the exercise of the public power for the common good, in any manner which shall not deprive him of j^ropertg, nor disturb him in the lawful use of any thing which should, of right, be his. A citizen cannot be compelled to pay for private advantage arising from the location of a public way ; nor, — unless his property be taken or, in some way, en- croached on, so as to divest him of some exclusive individual right. — can he be entitled to damages for incidental disadvantage. If the city possess power to shut up Jefferson street, and should exercise it, the recliision would subject the plaintiff, and others also, to much more in- convenience and actual loss than any which could have been occasioned by the elevation of the grade : l)ut. — the power conceded, — a legal right to damages for the total obliteration of the street could not be maintained. It would have been damnum absque injuria — loss, not :Jbs U-* 1 v^ ioA \ 'J (^..JvJU/ M V-u.%, to ^-v^. ^-Uy' ^JCL-^ 554 KEASY V. CITY OF LOUISVILLE. h\yf^ T^ injur}- — inconvenience, not wrong — to wliicli ever}- citizen must sub- mit, and to something like whicli eveiT citizen does submit, for tlie public good. As to the legality or propriety- of some of the modes of making public improvements in the cit\- of Louisville, tliis Court has no right to give any opinion in this case. The means employed for efFecting an allow- able end may be inappropriate, or even unauthorized, but the end itself — when accomplished — is not therefore the less unexceptionable. Jefferson street has been re-graded — by what instrumentality is not here material ; the end was lawful ; the city had a right to effect it in some mode ; and having done so, without injury to any of the plaintiff's private rights, (as we are bound to presume from this record.) he has no legal title to demand any damages for an accidental consequence, arising from the rightful exercise of a public power, without an}- tortious, or negligent, or unjust act or omission. We have not said, nor can we say, that a citizen ma}- not be entitled to damages for a deprivation of the zcse of his property by a public way which may not take, or even touch, any of his land. But the case in which such a right to damages might be recognised, must be an extreme and peculiar one. And this is not such an one, but is an or- dinary case occurring, in a greater or less degree, frequent!.}- — almost constantly ; and the public could not well bear the heavy and vexatious burden of such demands as would forever arise from such cases, were they admitted to be cases of private injury, for which an action could be maintained. Nor could individual citizens be justly subjected to the reciprocal claims of the public against them, for the like inconvenience arising from their lawful use and enjoyment of nothing but their own private property. And hence, as a general rule, the law gives no dam- ages to either party, when there has been no tresjxiss, nor any nuisance which might have been avoided without a surrender of a just and neces- «jary right. If, as we have supposed and decided, the city had authority to change the first grade, there could have been no implied agreement, when that was fixed, that it would never be changed, any more than such an agreement, between the United States and the owners of land on the Cumberland Road, never to change the location or grade of that national way, could be deemed as having been implied. Wherefore, it seems to us, that the plaintiff altogether failed to prove any fact from which the jury would have had a right to infer, that he had a legal right to damages. And therefore, it is our opinion that, however unnecessary or inapi)ropriate the hypothetical assumptions of the Court may be deemed to have been, the instruction was not erro- neous to the plaintiff's prejudice — and the judgment consequently must remain unreversed.^ ^ ^ ^_ 1 The absence of municipal liability at common law, in cases like Keasyv. Louisville, has been aflSrmed by the courts in most of tiie states. (For the exceptional decisions ^ -^ -^ -^ ■'^WALDEON V. CITY OF HAVERHILL. ^. y >1^ 555 WALDRON V. CITY OF HAVERHILL. 1887. 143 Massachusetts, 582. Tort, for injuries occasioned to the plaintiff's real estate by reason of'tKToperation of a stone-crusher on laud of the defendant, between August 1 and October 21, 1884. At the trial in the Superior Court, before Mason, J., it was admitted that the plaintiff, during the time alleged in his declaration, was in the occupation and possession of the premises described therein; and that, during said time, a stone-crusher, engine, and boiler, all of which were the property of the defendant, were pperated under the direction of one Mansur, who was the superintendent of streets of the defendant city, for the purpose of crushing rocks and stones for the city, used, when so crushed, in keeping the public streets in the city in suitable order and condition for travel. The stone-crusher was situated on land of the city formerly used as a gravel pit for supplying materials to be used in repairing said streets and high- ways, and was, during the time alleged in the declaration, used exclusively in the preparation of materials to be used in keeping said streets and highways in repair. Said land was a short distance from the plaintiff's premises, and, by the operation of the stone-crusher, stone dust arose and was deposited on the plaintiff's premises, which were thereby damaged to the amount of $50. The men who operated the stone-crusher under the direction of Mansur were paid therefor by the defendant. It also appeared in evidence, that the plaintiff occupied his said premises before the stone-crusher was placed upon the defendant's land; that the ownership, use, and operation of the stone-crusher, engine, and boiler, and the ownership and occupation of said land of the defendant, were reasonably necessary for the keeping of said highways irx reasonable order and repair for travel; but that it would f |/<*'**'"*^ have been practicable, by the erection of a board fence, to have pre- vented said damage to the plaintiff's premises by said dust. It I contra in Ohio, see McCombs v. Akron Council, 1 5 Ohio, 474 ; s. c. 1 8 Ohio, 229 ; Crawford V. Village of Delaware. 7 Ohio State, 459 ; and otlier cases reviewed iu Lewis on Eminent Domain, s. 98.) 2 Dillon, Mun. Corp., 4th ed., s. 990. Statutes, however, have been enacted iu some states giving compensation for damages to abutting property by change of grade. These statutes and the decisions thereunder are reviewed in Lewis on Emi- nent Domain, ss. 207-218; and late decisions are cfdlected iu G Lewis, Am. R. R. & Corp. Reports, p. 257, note. Some modern constitutions provide that comj)ensation shall be made, not only for property taken for public use, but also for property damaged or injured. Under such provisions it has been held that the abutting owuer may recover for damage to liis property by a change in the grade of the street. See 2 Lewis, Am. R. R. & Corp Rep. p. 435, note; 6 Ibid., p. 257, note; aud compare 2 Dillon, Mua Corp.. 4th ed., ss. 995 a, 995 b, and 995c. — Ed. ■MO ./C «€.x^.' J^^ rpqt?"^ < V\,.w «o"0— iw.><^*v' >V >i^ Ctf^yv; 6^* ^.^ 556 WALDRON V. CITY OF HAVERHILL. further appeared that the mayor of the city, who was chairman of the couimiLtee on public streets, on two occasions during the time alleged, was on the defendant's land. The material provisions of the city charter and ordinances, which were introduced in evidence, appear in the opinion. The judge ruled, as matter of law, that the plaintiff was not entitled to recover; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions. B. B. Jones, for the plaintiff. J. J. Winn, for the defendant. C. Allen, J. If a city or town, instead of leaving the duty oi keeping the highways in repair to be performed by the officers, and in the methods provided by the general laws, assumes to perform it by means of agents whom it may direct and control, it may be held responsible for the acts of those agents. The chief grounds of a town's exemption from responsibility for the acts of surveyors of highways, as stated in Walcott v. Sivampscott^ 1 Allen, 101, and in later cases, are, that thefr jx^vers and duties are prescribed and reg- ulated by statute, and that, in the performance of these duties, they are independent of the town, and cannot be directed, or controlled, or removed from office by the town, and are not amenable to it for the manner in which they discharge the trust reposed in them by law; nor can the town exercise any right of selecting the servants or agents by whom surveyors shall perform their work. These reasons are not_ applicable to a case where a town performs the work by means of agents of its own. Haichs v. Cliarlemont, 107 Mass. 414. Dea7ie '•f. Randolph, 132 Mass. 475. Sullivan v. Holyoke, 135 Mass. 273. Tindley v. Salem., 137 Mass. 171. The present case falls within the latter class. By the city charter, the administration of all the fiscal, prudential, and municipal affairs y A of the city of Haverhill is vested in the city council. By the city "T^rri ordinances, a superintendent of highways, removable at the pleasure of :^^^^**^^^ j the city council, is to be chosen. He is to act under the direction UJVvN>»^ -j ^^^ committee on streets, ways, and sewers, which is a committee of the city council. Special provisions show more in detail his sub- ordination to the city council, and to its committee. The work which caused the injury to the plaintiff's property was done on land of the city, which land for a period of nearly three months was used exclusively for the preparation of materials for repairing the streets and highways of the city. There is nothing to show that this use of I the city's land was unauthorized. The contrary is to be assumed, nj,. • Upon all the facts stated, the work in question appears to have been '^■^^ done by agents of the city, for whose acts and neglects in the per- formance thereof the city is responsible. The case of Barneij v. Lowell, 98 Mass. 570, was distinguished, on grounds equally applicable here, in Hawks v. Charlemont, ubi supra, by Chief Justice Chapman, who took part in the decision of both cases. Excej/tions sustained. J^ W* V^' MILES V. CITY OF WORCESTER. 557 ir\ MILES V. CITY OF WORCESTER. 1891. 154 Afass. 511.1 Tort for damages occasioned hv an encroaclimont upon the plaintiffs land of a wall erected between the same and an adjoiinnjj lot belonirinf* to the defendant cit}'. There was evidence that about the year 1871, the city built a wall on the south side of its high school lot between it and the plaintiff's lot, which were then at the same grade, upon a line mutually agreed upon, and proceeded to fill up its land to a level as high as tlie top of the wall, or even higher ; that the wall since it was built had been pressed out of position by reason of the" weight of the filling beliindlt, or by the action of surface water or frost, so that for nearly or quite a foot at the bottom it had bulged out and come upon the plaint ifY'sTan^ ; and that this bulging out of the wall had increased witiiin six years before the date of the writ, and had gradually affected the plaintiff's estate. Tlie judge instructe'i the jury, in substance, that if the plaintiflT hy reason of the encroachment of the wall had been kept out of posses- sion and occupation of a part of his land, and if within six years before the date of the writ the city had allowed or suffered the wall to be pushed and crowded upon the plaintiff's land, creating a nuisance thereto, causing him special and peculiar damage, then there was a liability in an action of tort as for a nuisance, no other objection exist- ing to a recovery. Verdict for plaintiff. Defendant excepted. igi WILSON V. MITCHELL. 559 of the plaintiff, and not upon the city property. The motion was granted, and the motion for a new trial deniad. It appears from the evidence that in 1893 the plaintiff was the owner of the city lot, and artesian well thereon, and that in the latter part of v'^--^. •f>-^ that year the superintendent of the waterworks of said city caused a v^J^>e^'^•-'r■^^ connection to be made between the city mains and the said artesian /5_^,jii~'r- well without any contract between the city and the plaintiff, and with- out the plaintiff's consent. There was no evidence, however, tending tu prove that the municipalit}* had any knowledge or notice that the well belonging to the plaintiff had been connected with the city water- works, other than the fact that the same had been connected by the u.^=^ 4AC.U^s the work and furnishing the material therefor ; but it was not shown U^^t.,,,,,^^^-* ^ that either the superintendent of the waterworks, the city plumber or 'Lv«-c^vvvn^ the city council knew that the well was upon plaintiff's property. The i^^y-Ud^ **» liability of the city is sought to be maintained upon the ground that VZn Q^ the plaintiff's well was connected with the city waterworks under the direction of the superintendent of the same, and that the city used the ^ water for the period Tobove stated. It is also claimed by the appellant \ \^o*-^'**'^ that the city is liable, the same as an individual, upon an implied con- I );L»Ji^^ ^ tract, and, therefore, it being shown that the city has used tlie lot ami I cs^-^"^^ well thereon during the time stated, the plaintiff is entitled to recover ' f^pCT for the use and occupation of the same. It is undoubtedly true that under the modern decisions a municipal corporation may be liable upon an implied contract, if an express contract would be within the powers of the municipality, delegated to it, and the city has ratified the act of its officers ; but the claim that the city ratified the act of the superin- - , . tendent of the waterworks by allowing the plumber's bill for making /VA * ' I }jtrQ ^ bility. The municipality had no authority to connect its waterworks system with the well of the plaintiff without his consent, and the city officer, therefore, had no authority to invade plaintiff's property, and the city could not legally ratify the act of its agent in making such connection. As the city had no power to enter upon private property and appropriate the same to public use, except in theitrrcrmeT providecl By law for coiulemnation of such property, the defendant did not have the power to enter upon the lot of the plaintiff and use the same for* public purposes without his consent. The acts of the officers of a" municipality cannot bind it unless they are acting within the scope of the powers expressly granted by its charter or necessarily incident thereto, or indispensable to the proper exercise of the powers granted. Sioicx Falls v. Kirby, 6 S. D. 62, 60 N. W. 156, 25 L. R. A. 621. It is contended on the part of the defendant that it was competent for the plaintiff to waive the tort, and sue upon the implied contract for the use and occupation of the premises, and recover the value of such use and occupation. This right might be exercised in the case of an individual, but such a rule has no application to the case of a mu- nicipal corporation, as the powers of such corporation are limited, and it cannot exercise such as are not expressly granted, or necessarily incident to the power granted. In Roidand v. City of Gallatin, 75 Mo. 134, 42 Am. Rep. 395, the Supreme Court of Missouri, discussing a similar question, says: "Conceding the plaintiff's claim in this re- gard, and the finding of the court thereon to be correct, still there is no authority in the charter of the city of Gallatin or elsewhere for the officer of the city, in pursuance of an ordinance or otherwise, to enter upon private property, and remove earth or other material therefrom, or in any other manner interfere therewith, for the purpose of improv- ing the streets of said city ; and the city cannot, therefore, be held liable for the acts charged. Tliomsony. City of Boonville, 61 Mo. 283 ; Emit V. Same, 65 Mo. 620 [27 Am. Rep. 299]." In that case the premises of the plaintiff were entered upon by the street commissioner of the city under the verbal direction of the mayor. But as we have seen, the court held that the municipality was not liable. It is true that was an action of trespass, but undoubtedly the same rule would have been held had the plaintiff waived the tort and sued for the value of the material taken from the lot. The basis of the action would have been the trespass committed by the street commissioner. So, in the case at bar, the trespass of the superintendent of the waterworks in connect- ing the waterworks system with the well of the plaintiff is the basis of this action, for which ti'cspass, as we have seen, the city would not be liable. AVaiving the tort, therefore, by plaintiff, and seeking to recover upon an implied contract, does not change the rights of the parties. As bearing upon this question, see Cavanagh v. Boston, 139 Mass. 426, 52 Am. Rep. 716; Seelev.. Deering, 79 Me. 343, 10 Atl. 45, 1 Am. St. Rep. 314; Smith v. City of Rochester, 76 N. Y. 506; Morrison Y. SALT LAKE CITY V. HOLLISTER. 561 Citij of Latvrence, 98 Mass. 219 ; Rowland v. City of Gallatin, lb Mo. 134, 42 Am. Rep. 395. We are clearly of the opinion, therefore, that the plaintiff, under the evidence in this case, was not entitled to recover, and that the court below rightly directed a verdict in favor of the defendant. The judgment of the circuit court and the order denying a new trial are affirmed.^ _ ,^^ €^< v^ SALT LAKE CITY v. HOLLISTER. 1886. 118 U. S. 256.2 Appeal from the Supreme Court of the Territory of Utah. Suit by the city, against the U. S. collector of internal revenue, to recover the sum of 812,057.75 illegally exacted by him for a special tax upon spirits alleged to have been distilled b}- the city. The answer of the d>?fendant alleges that the Lax was legally assessed, and avers that the plaintiff, during all the time for which said assess- ment was made, was actually engaged in distilling, producing, and deal- ing in, as distiller, said spirits so assessed, and said assessment of said gallon tax was made upon distilled spirits actually produced b}' the plaintiff, and upon which plaintiff had not paid the gallon tax required by law, said spii'its not having been deposited in the bonded ware- bouse of the United States by the plaintiff, as required by law, but taken from said distillery by the plaintiff, after having been produced and distilled as aforesaid, and sold by said plaintiff, and the proceeds of said sale turned into the treasury of the plaintiff. The answer also alleges that the plaintiff, from March 2, 1867, to Aug. 26, 1868, was distilling and producing spirits, and receiving and appropriating the benefit arising therefrom. The answer further alleges that the plaintiff regularly reported and paid to the collector the gallon tax due upon a part of the spirits dis- tilled by the plaintiff, but that the plaintiff neglected to report all of the spirits it actuall}' distilled, and that th e ta x now in question was assessed, upon the spirits distilled in excess of the amount reported by the plaintiff. A demurrer to the answer was overruled, and, the plaintiff refusing to plead further, judgment was renaerea lor the defendant. Franklin S. Richards, {Benjamin Shetks, and J. L. Raiclins, with Jiim), for plaintiff. /Solicitor General, for defendants. 1 See Cunningham v. Seattle, 40 Wash. 59, 82 Pac. 143, 4 L. R. A. N. S. 629. ^ Statement abridged. — Ed. 562 SALT LAKE CITY V. HOLLISTER. Miller, J. [After stating the case.] It will be perceived that this demurrer admitted that the plaintiff, The City of Salt Lalie, liod l)een for a period of about eighteen months engaged in the business ofdis- tilUng anoTprodncing spirits and selling the same, and placing the pro- ceeds omie"~sale in its treasury-. That during this time the plaintiff made regular reports as to the quantity produced and paid the tax oa the amounts so reported. But that while it tluis operated said distil- lery, it failed and neglected to report all the spirits which it produced, and the tax assessed and collected, and which the present suit is brought to recover back, was for the spirits of which no report was made. The Commissioner of Internal Revenue having assessed plaintiff for these distilled spirits and placed the assessment in the hands of defend- ant, he, as a means of collecting the tax, did threaten to seize and sell propert}' of plaintiff, whereupon plaintiff paid the sum mentioned. It would seem tliat this unqualified admission tliat the city was actually engaged in the business of distilling spirits liable to taxation, and replenishing her treasury with the profits arising from the opera- tion, ought to be a justification of the officer who collected the tax due for the spirits so distilled. And this argument is all the stronger, since the city acknowledged its liabilitj' as a distiller by paying volun- tarily the tax due on the larger part of the spirits produced. But while the city does not deny the actual fact of distillation, and of fraudulent returns by it, it denies the whole affair by argument. It says, that, though it is very true the city did distil spirits, did sell them, and did receive the money into its treasury, it cannot be held liable for this because it had no legal power to do so. Its want of corporate authority to engage in distilling is to be received as conclusive evi- dence that it did not do so, while bj- the pleading it is admitted that it did. Because there was no statute which authorized it as a cit}^ of Utah to distil spirits, it could engage in this profitable business to any extent, without paying the taxes which the laws of the United States require of every one else who did the same thing. If the Territory of Utah had added to its other corporate powera that of making and selling distilled spirits, then the cit}' would be liable to the tax, but, because it had no such power b}- law, it could do it without any liability for the tax to the United States or to any one else. 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 would be unauthor- ized by their charters or articles of incorporation ; for they would thus escape taxation and ruin all competitors. It is said that the acts done are not the acts of the city, but of its oflicers or agents who undertook to do them in its name. This would be a pleasant farce to be enacted by irresponsible parties, who give no bond, who have no property to respond to civil or criminal suits, who SALT LAKE CITY V. HOLLISTER. 563 make no profit out of it, while tlie cit}' grows rich in the performance. It is to be taken as a fair inference on this demurrer tliat all that the cit}' inight have done was done in establishing this business. The offi- cers who, it is said, did this thing, must be supposed to have been properly appointed or elected. Resolutions or ordinances of the govern- ing bodv of the city directnig the establishment of the distillery and furnishing monej' to buy the plant, must be supposed to have been passed in the usual mode. Everything must have been done under the same rules and by the same men as if it were a hospital or a town hall. If the demurrer had not admitted this, it could no doubt have been proved on an issue denying it. But the argument is unsound that whatever is done b^^ a corporation in excess of the corporate powers, as defined by its charter, is as though it was not done at all. A railroad companj' authorized to acquire a righc of way by such exercise of the right of eminent domain as the law prescribes, wiiich undertakes to and does seize upon and invade, hy its officers and servants, the land of a citizen, makes no compensation, and takes no steps for the appropiiation of it, is a naked trespasser, and can be made responsible for the tort. It had no authority to take the man's land or to mvade his premises. But if the governing board had directed the ace, the corporation could be sued for the tort, in an action of ejectment, or in trespass, or on an imphed assumpsit for the value of the land. A plea of ultra vires, in this case, would be no defence. The truth is, that, with the great increase in corporations in very recent times, and in their extension to nearly all the business trans- actions of life, it has been found necessary to hold them responsible for acts not strictlj- within their corj^orate powers, but done in their corporate name, and by corporation officers who were competent to exercise all the corporate powers. Wlien such acts are not founded on contract, but are arbitrary exercises of power in the nature of torts, or are quasi-criminal, the corporation ma}' be held to a pecuniary re* Bponsibilit}' for them to the party injured. This doctrine was announced b}- this court nearly thirty years ago in a carefully prepared opinion by Mr. Justice Campbell in the case of Philadelpkia, Wilndngton and Baltimore Railroad Co. v. Quigley^ 21 How. 202. [The learned Judge then stated the last mentioned case ; and also referred to Reed v. Home Savings Bank, 130 Mass. 443, 445, and Copleij V. Grover and Baker /Sewing Machine Co., 2 "Woods, 494, in which the defendant corporations were held liable to actions for mali- cious prosecution.] It is said that Salt Lake City, being a municipal corporation, is not liable for tortious actions of its officers. While it may be true that the rule we have been discussing max re- quire a more careful scrutiny in its application to this class of corpo- rations than to corporations for pecuniary profit, we do not agree that 564 CITY OF HENDEESON V. CLAYTON. 7S2a4^' they are wholly exempt from liability for wrongful acts done, with all the evidences of their being acts of the corporation, to the injury of thers, or in evasion of legal obligations to the State or the public. A municipal corporation cannot, any more than any other corporation or private person, escape the taxes due on its property, 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 Government on such business or transaction by whom- soever conducted. See McCready v. Guardians of the Poor of Phila- rl/Kt^JxtsA ^^h^^^^^^ 9 S. & R. 94. ^^ It remains to be observed, that the question of the liability of corpo- '^^TjU rations on contracts which the law does not authorize them to make, and which are wholly beyond the scope of their powers, is governed by K„ X a different principle. Here the party dealing with the corporation is ' ' under no obligation to enter into the contract. No force, or restraint, r j^^or fraud is practised on him. The powers of these corporations are Wk/*^b . matters of public law open to his examination, and he may and must Y/i/JJi^ judge for himself as to the power of the corporation to bind itself by 1 "^ ' the proposed agreement. It is to this class of cases that most of the p^ authorities cited by appellants belong — ■ cases where corporations have been sued on contracts which they have successfully resisted because they were ultra vires. But, even in this class of cases, the courts have gone a long way to enable parties who had parted with property or money on the faith of such contracts, to obtain justice by recovery of the property or the V y^ ^ / money specificall3% or as money had and received to plaintiff's use. ^,-.0CX. I Thomas v. Railroad Co., 101 U. S. 71 ; Louisiana ^y. Wood^ 102. ^j^ U. S. 294; Chapman v. Dovglass County, lOTursTsis, 355. Jl^ """"The judgment of the Supreme Court of Utah Territory is >>J&v-. CITY OF HENDERSON v. CLAYTON. 1900. 57 S. W. 1. n&Sz^ HoBsox, J.^ Appellee filed suit to recover damages for the location ^'h of its pest house within one mile of the corporate limits of the city of *" Henderson, by reason of which she and her family took the smallpox. ^' She sought to recover against the city and the municipal officers ''K^ jointly. This is the second appeal of the case. The opinion on the Hw, former appeal will be found in Clayton v. City of Hoiderson, 44 S. W. a 667. On that appeal it was held that she could not sue the city and f*o- its officers jointly, and on return of the case she elected to prosecute ^^v^, 1 Part of the opinion only is given. — Ed. 5_ CITY OF HENDERSON V. CLAYTON. 565 the action against the city alone. After this a trial was had, resulting in a verdict and judgment against the city for §2,775. From this , judgment the city prosecutes the appeal now before us. Section 3909, ^^^L*X~- Ky. St., is as follows: "It shall not be lawful to locate or maintain any pest house or other place intended for the treatment of eruptive j,,,,^,,^-^^ diseases, or diseases which are contagious or infectious, within the cor- ^^ » porate limits of any incorporated city or town, or within a distance of ^^ one mile of the boundary line thereof. Any officer of any city or town, >• ^^^ ^ or other person, who shall violate the provisions of this act, or in any ^\jfAj,j^ wise aid or abet therein, shall be deemed guilty of a misdemeanor, and ^^"^^^"^"^ upon conviction thereof in^ny court of competent jurisdiction, >hnll be -^ Vf'w^ flnemiot less than five hundred dollars nor more than one thousand ^^ dollars, and be liable in damages to any person injured thereby, and ^ if willfully done, such person or his heirs or representatives may re- ' . cover punitive damages." As the city was authorized by law to estab- ^jO^ lish and maintain a pest house, the acts of its officers in establishing -i^^JLi and maintaining the pest house in question were its acts, and it is re- . .*- sponsible to the party aggrieved, as well as its agent through whose lJ-^* instrumentality it acted. This was expressly determined on the former appeal. It will be obsers-^ed that, while the statute imposes a duty upon the city, it provides a remedy by action only against the city officers in behalf of the person injured. While this court on the former appeal said that a common-law cause of action was stated against the city, it was not meant that the petition stated only a common-law cause of ac- tion independent of the statute. We think the averments sufficient to constitute a cause of action indef)endent of the statute, and also a cause of action, which, according to the common law, arises from the violation of a statute enacted for the protection of the citizen. From time immemorial, where a statutory duty for the protection of individ- uals had been violated, an action at common law might be maintained. The common-law rule referred to is thus stated in Com. Dig. tit. "Ac- , JLjum tion upon Statutes": ''In every case where a statute enacts or pro-/ ^^^ hibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law." Another common-law authority thus states the rule : " Whenever an act of par- liament doth prohibit anything, the party grieved shall have an action, and the offender shall be punished at the king's suit. It is written in the hornbook of the law that the public and a party particularly ag- grieved may each have a distinct but concurrent remedy for an act which happens to be both a public and a private wrong." End. Interp. St. § 463. The same common-law rule is laid down in Bish. Noncont. Law, § 133, and in Cooley, Torts, p. 658. It is also recognized in sec- tion 466, Ky. St. : "A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture for such vio- 566 THOMPSON NAVIGATION CO. V. CITY OF CHICAGO. lation be thereby imposed." "While the statute involved here imposes on the municipal officers a criminal responsibility, and also makes them liable civilly to the party aggrieved for the injury or for punitive dam- ages, if it is -willfully done, it is silent as to a remedy against the mu- nicipality, and, nothing being provided as to the remedy against it for its doing what the statute makes unlawful, the common-law rule applies ; for the wrong is the act of the city whose orders the municipal otficers execute, and as the remedy against the officers might in many cases, from insolvency and the like, be wholly inadequate, this provision of the statute, nothing to the contrary appearing, must be regarded as merely cumulative. The city of Henderson was therefore liable to appellee for such damages as she sustainednDy reason of the city's violation of section 3909, Ky. St., above quoted, although that statute did not in terms impose this liability on it, and the court below properly so in- structed the jury. Judgment affirmed. ^^^^ THOMPSON NAVIGATION CO. v. CITY OF iamC5lG0.N^O^ 1897, 79 Fee?. 984. t *On^" Grosscup, J. This is a libel in^persoiimn against the city ofi '' ^ Chicago, growing out of a collision between the fire tug Yo Semite, "^_ owned hy that cit3', and the propeller City of Berlin, owned bj- the libel- C^ lant. The collision occurred in the Chicago river, near the point where it L/^ branches into its south and north forks. At the time of the collision, ^t? the Cit}' of Berlin was lying in winter quarters. The circumstances %\1 of the collision were such that had the tug been owned by private l<^ > owners, and engaged in a private enterprise, there could be no doubt Jp/ of her liability for the injur}- done. In saying this, I keep fullj' in view ^. the fact that fire tugs are expected by the nature of their duties to make haste. The haste in this case was blind and thoughtless, result- ing in a dela}' to the tug, as well as injury to the City of Berlin. In- deed, counsel for th^city do not seriously contest the fact of negliggace. But the fire tug was at the time of the collision owned by the city of Chicago, and actually engaged in one of the liaMic duti es that Chicago, as a part of the government, undertakes. Do these facts, or either of them, exempt her, or the city, responding in her behalf, from what would otherwise be her clear liability ? At common law, one injured either in his property or person looks for compensation to the person or persons causing the injury, or to the master or principals of such persons, where the injury was done within the scope of their agenc}' or service. Injidmiralty^ the rule is this : The Yessel_j3ornmitting the unlawfu l iniury is considered, the otfeuder , THOMPSON NAVIGATION CO. V. CITY OF CHICAGO. 567 and the ow ner is mulcted to the extent of his in-terest in the vessel ; not because he sliinds in the relation of principal or master to the crew, bnt alone because of the fact of ownership. Thus, under laws pre- ventive of piracy or smuggling, the vessel ma}' be seized, condemned, and sold, notwithstanding the crew committing the unlawful acts were engaged by the owner for a lawful enterprise only, and were, in the commission of the unlawful acts, wholly outside the scope of their en- gagement. U. S. V. The JSLileh Adhd., 2 How. 210. Commenting upon this apparent anomaly of maritime jurisprudence, and showing that the doctrines advanced in the case then under consideration were not different from those prevailing generallj' in maritime law, Mr. Jus- tice Story, at page 234, speaks as follows: " The shi[) is also, by the general maritime law, held responsible for the torts and misconduct ot the master and crew thereof, whether arising from negligence or a wilful disregard of dutj- ; as, for example, in cases of collision and other wrongs done upon the high seas or elsewhere within the admiralt}' and maritime jurisdiction, upon the general policy of that law which looks to the instrument itself, used as the means of the mischief, as the best and surest pledge for the compensation and indemnity to the injured part}-." It is thus apparent that the liability of the owner, to the extent of his vessel, for injuries caused in a collision by negligence or miscon- duct, is not dependent upon the relation of master and servant, or pn ncipal j^n*^^ ^'^g<^''i^' existing between him and the crew manning the vessel, but rests solely upon the fact of ownership. The siiip, wliich. in contempTafion of ui.ii'itinie'Taw, is not the hulk and machinery only, but includes the crew as well, is, as such, the offender, and the ensuing losses reach the owner simply because of his relationship to the offender. In Rome, it is said that, when the owner of slaves was assassinated, ever}' slave belonging to him, however otherwise innocent, w^as put to death. The penalty came not as the result of participation, but as the result of relationship. The maritime law, for justifiable public purposes, inverts this mandate, putting every owner, by virtue of such relation, to the duty of compensation for losses inflicted by his ship property, to the extent, at least, of the value of such property. Nor is this liability of Uie owner indirect alone, for the admiralty rules of the supreme court provide (Rule 15) " that, in all suits for damage by collision, the libellant may proceed against either the ship and master, or against the owner alone in pertonam" The method of pro- cedure chosen does not change the substantive right or liahilitv. Tn either case thesTiip is the offender. If the procedure be against the ehip alone, resulting in seizure and sale, the owner is only indirectly reached; but, if it be against the owner in personam,, the remedy against him is direct. The substantive riglit is compensation for the \njnry, and can be either by way of the ship or from the owner Uirectly. 568 THOMPSON NAVIGATION CO. V. CITY OF CHICAGO. I o^ A firm grasp of this principle of maritime law clears this case of its (lilBculties. At comm on law the city is not liable for the negligent acts of its fire department, for the reason that the members of the fire de- i)artraent are not the servants of the city in its corporate c. auat;itv. The negligence of the firemen, therefore, is not attril)utable to the cit\'. But in the case under consideration the injury done by the'TSfesel, including its crew, to the libellant, is chargeable to the owner, by virtue •»£- the mere fact of ownership, and can be collected, directh", by seizure »/ the vessel, or, indirectly, by a suit in jjersoficon. In either case the liability rests, not in the relation of principal and agent, or master and servant, but in the bare fact of ownership. But, tliough such liabilit}- exists, reasons of public policy may, la some cases, exempt the owner from suit. The government, as sover- eign, for instance, declines to be made compulsorih* amenable to the courts upon even its just obligations. This exemption, however, is founded entirely in public policy {T/ie Siren, 7 "Wall. 152), and ought not to be extended to cases where such considerations do not intervene. In Englajid, I think, the}- do better. In claims arising against public vessels, the apparenth* conflicting right of the sovereign to exemption from suit, and her dutj- to respond to just claims, are both maintained bv a procedure, effective, though somewhat fictitious. A petition of right is addressed by the aggrieved person to the lords in admiralty, representing the crown, who, in turn, direct their proctor to appear and answer a suit to be commenced in the admiralt}- court. This is equiva- lent to a waiver by the crown of its privilege as a sovereign, and to a consent that the rights of the parties be tried and determined in the suit as between subject and subject. There appears, however, to be no wa}' of making the government of the United States, or of a state, parties to such a proceeding, because no procedure has been invented here wherebv the right of immunit}- from suit is waived. But the citv of Chicago is, by law. amenable to suit and judgment upon all just claims that may be brought against it. The doctrine of public polic}', therefore, under which this exemption is accorded to sovereigns, Btops short of cit}' government. The law b}' making such cities suable abolishes the doctrine in what might otherwise be its application to city governments. The legislative will has, in effect, decreed that there is no public policy excepting cities from suit. The cit}' is suable, and maj- be decreed to pay as h private owner wliere a case is proved. This clearly differentiates this case from The Siren^ siqyra. One other consideration alone remains : I have held, on the strength of The Fidelity, 16 Blatchf. 569, decided by Chief Justice Waite on the circuit, that an action in rem cannot lie against this fire boat. Will that prevent a decree in personam against its owner? The difference between mere procedure and substantive right must bo steadily borne in mind. The latter alone determines the right of some judgment or redress. The former only fixes the method of LEVY V. MAYOR &C. OF NEW YORK. 569 reaching it. A seizure of the vessel is only a species of execution in \\ advance of judgment. It is usually permissible in admiralty, because, under ordinary circumstances, most effective and eqiiital)lo. But public policy prevents its application to such instrumentalities of emergency as a fire tug. A city cannot be left to burn while a contest over a few dollars of damage is going on. The law, therefore, out of considera- tions of public polic}-, forbids such seizure, or any process that would disarm the citv, even temporarily, of its equipment to put down fires or like dangers. But exemption of the owner of the boat from one of the ordinary processes of the court is not, either in logic or law, a grant of immunity against liability, through some other procedure, not sub- ject to such objections. The consideration of public policy extends only to the mischief to be averted. To give it a wider application would make it an instrument of injustice. An apt illustration of this limitation on procedure only is seen in the law which exempts cities, in the common-law court, from seizure of their property- upon execution. But it has never been urged that, because of that, they were not sual)le at all, or that judgments entered against them were in no way enforceable. My conclusion is that the city of Chicago, as owner, at the time r.f the collision, of the fire boat, is responsible to the libellant in an nction in personam to the extent of the value of such fire boat for the injuries caused. T recognize that in this conclusion I depart from the case of The Fidelity, supra, but believe myself to be in consonance with the doctriae laid down in The Siren, svpra^ and The Malek Adhel, svpra. Decree accordingly. ^f'*-^. Negligence in Executing Governmental Functions. Y\ sV \ \,^ LEVY V. MAYOR &c. OF NEW YORK. '5a^'"*^^^ ^®"*^' ^ Sand ford, New York Superior Court, 465.2 t^ir^^i The city of New York, having the requisite power, enacted an ordi- ^^5^ nance prohibiting swine from running at large in the streets, with a jtd penalty and also a provision for impounding the animals. The city ijj^ neglected to enforce the ordinance. A swine, suflfered to roam at large ^u»^ in the street, attacked the plaintiff's son, aged 8. The bo}' was mortally . injured, dying the next day. The father brought an action on tlie case \Zr^ against the city, to recover damages for the loss of his son's services ^"^ and for the expenses of burial. The declaration alleged, in substancct the foregoing facts. The defendants demurred. 1 See Workman v. New York, 180 U. S. 652. 2 Statement abridged.— Ed. ;70 LEVY V. M.U'OE &C. OF NEW YORK. 6-<> Willis Hall, for defendants. T. Wcrrner, for plaintiff. Sandford, J. The plaintiff's counsel well observed, that there was no precedent for such an action as this ; and we are compelled to add, that there is no principle upon which it can be sustained. The corporation is undoubtedly veste^l with certain legislative powers, amoni? which is the authority to restrain swine from runnins; at larg? in the streets ; and the}' have exercised it b}' enacting an ordinance to that effect. The idea, that because thoy may prohibit a nuisance, that therefore they must not only pass a prohibitory law, but must also enforce it, at the hazard of being subjected to all damages which may ensue from such nuisance, is certainl}' novel. The corporation of the city, in this respect, stands upon the same footing within its own jurisdiction, as the state government does in respect of the state at large. It is the duty of the government to protect and preserve the rights of the citizens of the state, both in person and propert}', and it should provide and enforce wholesome laws for that object. But injuries to both person and property will occur, which no legislation can prevent, and which no system of laws can adequately redress. The government its citizens against all the casualties incident to does not guaranty humanity or to civil society ; and we believe it has never been called upoiTtolnake good, b\- wa\- of damages, its inabilitj- to protect against, such misfortunes. \ There would be no end to the claims against this cit\' and state, if such an action as tliis is well founded. If a man were to be run over, and his leg broken by an omnibus racing in the street, he would forth- .^ «ft\j\j<^with sue the citj- for damages, because the corporate authorities neg- lected to enforce their ordinance against racing and furious driving in the public streets. So, if some miscreant, bv placing a stick of timber on a railroad track, should cause the destruction of a passenger train, with great loss of life and limb ; the legislature would be petitioned by the injured survivors, and the relatives of the deceased, for the dam- ages thereb}- occasioned, on the ground, that the public servants should have enforced the statute enacted against such offences. There are innumerable illustrations of the application of the principle. It suffices to say, that no government, whether national, state or muni- cipal, ever assumed, or was subjected to a general liability of this description. There is no analogy between a municipal corporation in respect of its legislative functions, and the duty or the liability of turnpike com- panies, or other private corporations aggregate. And the same may be said of the dut\' of commissioners of highways, and like public officers, clothed with adequate power for the performance of some plain execu*- tive or ministerial duty. As to the argument that the common law imposes upon the corpora- tion the duty and liability in question ; we are unable to appreciate it \ <^..,o- 1 I QS-<^Wv-vOo-tv. I O^ ^^ ^<.^ '^^ ' t . I 7 EASTMAN V. MEREDITH. 571 Nor do we understand, that as a corporation, it is subjected per se, to the duty of keeping swine out of the streets. We have had occasion frequently to hold the city liable for the negli- gence and misfeasance of its oflicers and agents ; but the principle of that liability, has no application here. Wyiving the consideration of the other objections to the action, \ 'V which are presented b}' the demurrers, we must decide, that the suit sa^V cannot be maintained.^ ^.*^"^ Judgment for the defendant s. \A 9X, ^^^;u->N' ^^ EASTMAN V. IklEREDITH. 1*^ "V^TO \%^'&. 3G New Hampshire, 284.'^ ERLEY, C. J. The following may be taken for a general statement of the case set up by the plaintiff. The town of Meredith built a town-house, to be used for holding town-meetings and other public purposes. The house, by the default and negligence of those who built it in behalf of the town, was so improperly constructed that the flooring gave wa}- at the annual town-meeting in 1855, and the plain- tiff, an iniiabitant and legal voter, in attendance on the meeting, re- ceived a serious bodiU' injury. The accident and injury were caused by the defects and insuiRciency of the building. Assuming that it was the duty of the town to provide a safe and suitable place for holding town-meetings, the question will remain, whether a citizen of tlie town, who suffers a private injuiy in the exercise of his public rights from neglect of the town to perform this public duty, can maintain an action against the town to recover damages for the injury? Towns in this State are declared by statute to be corporations, and consequently ma}' sue and be sued in reference to all their legal rights and liabilities. But declaring them to be corporations cannot confer upon them other powers or subject them to other duties than those which are conferred and imposed either by express provision of some statute, or are implied from the general character and design of such public corporations. Hooper v. Emery, 14 Maine 377. We have no statute which gives an action against a town for an injur}* like that complained of in this suit ; but the general position taken for the plaintiff is this : The town is a corporation ; it was a public duty of the town to provide a safe and proper place for hold- ing the annual town meetings ; the plaintiff has suffered a private injury from neglect of the town to perform this public duty, and the law holds a corporation liable to an individual for any private damage that he may suffer from neglect of the corporation to perform a public duty. 1 See Ci/'ve;- v. Streator, 130 111. 238, 22 N. E. 810, 6 L. R. A. 270 ; O'Rourke v. Sioux Falls, 4 S. D. 47, 64 N. W. 1044, 46 Am. St. Rep. 7G0 ; Jones v. Williamsburg, 97 Va. 722, 34 S. E. 883 ; Hagerstown v. Klotz, 93 Md. 437, 49 Atl. 836. 2 Arguments omitted. — Ed. ^ * ^ •> I 5Lw>-4>-SL» c- 572 EASTMAN V. MEREDITH. In considering the authorities which have been relied on to sustain the general position of the plaintiff, it ma}' he well to distinguish the different classes of corporations tliat have public duties to perform, and advert to the grounds upon which, in different cases, the legal liability for neglect to perform tlie public duty has been held to rest. Private corporations, by the conditions, express or implied, upon which the}' hold their corporate powers, are frequently charged with the performance of public duties ; and where a private corporation, like a turnpike, a canal, or a railroad, accepts a grant of corporate powers upon condition of performing a public duty, and an individual suffers a private damage from neglect of the corporation to perform the public duty, it is well settled, upon the authority of numerous cases, that he ma}' maiutain an action against the delinquent corporation, to recover his damages. A large proportion of the cases cited for the plaintiff are of this character. So in England, where a public duty is imposed on a municipal cor- poration as a condition upon which the corpoi-ate franchises or corpor- ate property have been granted ; or where the corporation holds its franchises or property by a prescription from which a grant on like condition may be inferred, it has been held that any individual may maintain an action against the corporation to recover damages for an injury which he has suffered from neglect to perforin the public duty. In Henley v. Jyyme Hegis, 5 Bingliani 91, >S. C. in jtJrror, 3 B. & Adol. 77, and 1 Bingham N. C. 222, the corporation held their fran- chise of a borough, and also a pier or quay, with the right to take tolls under a grant from the crown, in which they were din^cted to repair a sea wall ; and it was held that the plaintiff might maiutain an action to recover damages which he had sustained by the neglect of the cor- poration to repair the wall. In that case, 1 Blng. N. C. 222, it was said tliat where a matter of general and public concern is involved, "and the king, for the benefit of the public, has made a certain grant, imposing certain public duties, and that grant has been accepted, we are of opinion that the public may enforce the performance of those duties by indictment, and individuals peculiarly injured, by action." In the Mayor of Lyme in Error v. Turner, Cowper 87, the corporation had immemorially repaired and cleansed a creek, and the plaintiff maintained his action against thfe corporation for damage caused by interruption of the navigation of the creek for want of cleansing and repairing. In that case it was said by Lord Mansfield that as the defendants were bound by the prescription to repair, "it might be the very condition and terms of their creation or charter." In these cases the right to maintain the civil action appears to be placed on the ground that the municipal corporation accepted the grant of their franchises or their property from the crown upon the condition of performing tlie public duty, and were parties to a contract with the government in the same way as private corporations are, which accept the grant of corporate powers upon similar conditions. # EASTMAN V. MEREDITH. 573 It is also to be observed that municipal corporations in England are broadl}' distinguished in many important respects from towns in tliis and the other New-England States. Tiiere is no uniformity in tlie powers and duties of English municipal corpcn-ations. They are not created and established under any general public law, liut the powers and duties of each municipality depend on its own individual grant or prescription. Their corporate franchises are held of the crown by the tenure of performing the conditions upon which they have been granted, and are liable to forfeiture for breach of the conditions. They indeed answer certain public purposes, as private corporations do, whicli have public duties to perform, and some of them exercise political rights. But the}" are not, like towns, general political and territorial divisions of the country, with uniform powers and duties, defined and varied, from time to time, by general legislation. Towns do not hold their powers ordinarily under any grant from the government to the indi- vidual corporation ; or b}- virtue of any contract with the government, or upon an}' condition, express or implied. They give no assent in their corporate capacity to the laws which impose their public duties or fix their territorial limits. X" ^H that is material to the present inquiry, municipal corporations in England bear much less resemblance to towns in this'countr}7~tlian~ T o private corporations wlncli are charged with the perform ance of public duties, and for this reason the English authorities on the subject are but remotely applicable to t he present case. Grants are sometimes made to particular towns or cities, of special powers, not belonging to them under the general law ; and there is a class of cases, in which towns and cities have been held liable to civil actions for damages caused by neglect to perform public duties grow- ing out of the grant of such special powers : as the power to bring water by an aqueduct for public use hy those who pay a compensation .'YIt'*''*^-* for it ; to light the place with gas , on the same terms, or to make and! «»-»^> q*" maintain sev££i§ at the expense of adjoining proprietors. Thus in ft^^-^""^^ The Mayor, «»^ conferring special powers and privileges, stress appears to have been ' ^^^TtZ!"^ ^^^^^ ^" ^^^^ circumstance tiiat the cit}- derived a direct pecuniar}- profit ^^^^^_^^,^ from tlie grant, in the shape of a toll or rent. But in other cases, where no benefit of tbat kind was derived from the grant, cities have been held liable, and the decision has been put on the ground that the grant of special powers, though not the source of an}- direct pecuniar}' profit, was yet in the nature of a special privilege or immunity, granted for the particular local advantage of the city, and placed the corpora- tion on the same footing of liabilit}' as if the benefit were in the shape of a rent, or toll, or other pecuniary income ; that the grant was made and accepted on the same implied condition of performing the public duties growing out of it, as if it had afforded a direct profit in money. In Mears v. The Commissioners of Wilm.ington^ 9 Iredell 73, the corporation were sued for undermining a brick wall in grading a street, under authority conferred on the town b}' sundr}' special acts of the Legislature, and were held liable to the action. In that case the court say, "when the sovereign grants power to ai municipal corporation to grade the streets, the grant is made for the public benefit, and is accepted because of the benefit which the corporation expects to receive, not by making money directly, but b}- making it more convenient for individuals composing the corporation or town to pass and repass in the transaction of business, and to benefit them by holding out greater inducements for others to frequent the town. The only distinction is that in one case the money is received directly, in the other indirectly. But in both cases the individuals composing the stockholders," (that is, in the private corporation,) " and the citizens of the town, derive special benefit from the work." CunUfe v. The Mayor ^ t&c, of Albany^ 2 Barb. Sup. Ct. 190, would seem to fall into the same class of cases. There the city claimed authorit}' under a special act to improv e the ^K-t-»AA^ !liiXigi!i'^" of Albany Basin, and to mai ntain a bridge ; and having altered the construction of the bridge under authority of the act, were -v^ n Jh ■ ;~^Io- <, decided to be liable to the plaintiff for an injury causea b}- the bridge '- J"^'<^~y - while he was on it. So of Rochester White Lead Co. v. The City of Hochester, 3 Comstock 4G3, and Clark v. Washingtoti, 12 Wheaton 40. EASTMAN V. MEREDITH. 5(0 In such cases the special powers thus granted are not held by the particular town or city under the general law, and as one of the political divisions of the country. The public duty grows out of the special grant of power ; and, though held and exercised by a town or city, the nature of the power granted is the same as if a like power had been conferred on a private corporation created to answer the same public object, and the cases above referred to hold the town or city lialile to a civil action for neglect to perform a public duty arising from tlie grant of tlie special power in the same way, and, as 1 understand them, upon the same grounds and reasons, as private cor- porations are held, which are clothed with the same powers and bound to the performance of the same public duties. So far as I have had opportunity to examine this class of cases, they appear to go upon the ground that the special power, though no direct pecuniary profit may be derived from it, is granted as an immunity and peculiar privi- lege, for the l)enefit of the particular town or cit}-, and is accepted, as in the case of a private corporation, upon the implied condition of per- forming the public duties imposed by it and growing out of it. Henley V. Lyme Megis, 1 Bing. N. C. 222 ; 3Iears v. Wilmington., 9 Iredell 73 ; May or ^ cCc, of New-York v. Bailey, 2 Denio 456. This distincti on ^etween corporations that voluntarilv accent the g rant of special powers_from the government, and tlie inhabitants of ^ny district who are by statute invested with particular powers with- jOut_ tlieir consent, is stated and relied on bv Parsons, C. J., in the early case of Riddle v. Locks and Canals^ 7 Mass. 187, and is recog- tiized in Sears v. The Turnpike., 7 Ct. 9. The case of Pittsburg City in Error v. Grier, 22 Penn. 54, cited for the plaintiff, stands upon grounds which clearly distinguish it from the present. The city, in that case, was in possession of a public wharf, exercising an exclusive supervision over it, and receiving tolls for its use ; and the plaintiff sustained a special injury from the neglect of the city to keep the wharf in order. Black., C. J., delivering the opinion of the court, says, "The rule undoubtedly is, that those who have a public work under their control are bound to repair it, and the force of this obligation is still further increased when it yields its pos- sessors a revenue. The cases above cited show that this princii)Ie applies to public ports in possession of a city, as well as canals, bridges and other highways in the hands of individuals and private corporations." " The injury is a violation of the duty which arises out of the control which the citj- has over the port, and her receipt of tolls from the vessels which come into it." The case is thus put distinctly on the ground that the public duty which was the foundation of the action arose out of the control which the city exercised over the wharf and the income received for the use of it In several of the cases cited for the plaintiff, cities and towns have been held liable for private injuries done bv them in the course of executing works which they were by law authorizeo to perform. \\\ 0>t><>.^^C- Ru ssell y. T he Men of Devo n, and that the reasons ass ij^ned for the decision in that case are not applicable to ou r towns. There is certainly no such exact resemblance between counties in England and our towns, as will make all the reasons upon which the court in that case placed their decision applicable to towns in this State. Counties in England are, however, territorial and political divisions of the country, as counties and towns are here ; they are quasi corpora- tions, so far as to be liable to public prosecution for neglect to perform their public duties ; and the reason that the county had no corporate fund out of which the plaintiff's judgment could be paid, would seem to be as strong against maintaining an indictment as a civil action ; for it is not easy to see how the want of a corporate fund would make it more difficult to collect a judgment recovered by an indi- vidual, than to lev}' a fine assessed after conviction on an indictment. Th.it is indeed admitted in the judgment of the court, and the liability of a county to indictment put on the .ground of authoiity and unbroken usage. And the doctrine of that case has been adopted and applied to towns in numerous instances, b}' judges who must certain!}' be reckoned among the most eminent jurists that New-England has pro- duced : l\v Parsons and Shaw in Massachusetts, b}' Mellen and SJiep' ley in Maine, and by our own learned and excellent Chief Justice Rich- ardson^ in this State ; names which carr}' with them an irresistible EASTMAN V. MEREDITH. 579 weight of authority on all legal questions, and especially on one like the present ; for no men in the country have been more familiarly acquainted with the whole legal history of towns in New-England, and all the traditions of the law in relation to them. A manuscript case of Wheeler v. Troi/ has been shown to us, in which it is understood to have been decided, in December, 1848, at the term of the Superior Court for Chesliire count}-, tliat towns in this State are liable to an action for damages caused by defect of highway's, independent of the statute which gives the action. Taking that case to be correctly reported and to have been correctly decided, it is far from coming up to the present. Thedutyto repair highways is espe- cially enjoined upon towns by sta tute, for the common be nefit of all who have occasionto use them. It is not a pubhc d^y, supposed to be devolved upon tow ns to enable tlieir own citizens to exercise and ejj joy their public and political rights, like that on wtiich the plamtiff rpljps in this rasp. We find, however, upon inquir}', that this case of Wheeler v. Iroi/ was decided by two only of the three judges then on the bench, in the absence of Mr. Justice Woods, whose opinion on a question of this kind would have added great weight to the authority of tlie case ; and we have no information that he then concurred or now concurs in the decision. The case has remained long without any published report, "^i/^j-r? < and has received no confirmation from recognition in any subsequent decision, or from the acquiescence of the legal profession ; and, indeed, the manuscript report of the case fails to afford evidence that it was decided after so careful and thorough a consideration as was usual with that court ; and, if an occasion should hereafter arise to require it, we should feel quite at libert}- to reverse the decision ; but we do not find ourselves called on to do it at this time. A distinction has been suggested in argument, between an omission or total neglect to perform a public dut}', and negligence in the manner of performing it. It has been contended that though the town might not be liable for damages caused by omission to perform the duty, they would be for an injury caused b}- the negligent and improper manner of performing it. There are doubtless cases where a party who is under no legal obligation to perform an act or service, is yet liable for damages caused by his negligence, if he voluntarily enters upon the perform- ance of it. But our discussion of this case has gone on the assump- tion that it was the duty of the town to provide a safe and suitable place for holding the town-meeting ; and we are unable to perceive any distinction in principle between a claim to recover damages for a total neglect to perform an admitted public duty, and for neglect to perform it properly and witli due care, when the in.iury compiainea oi uappens to the plaintiff in the exercise of his public rights as a citizen of the t own. The duty is not performed unless it is properly performed. In both cases the town has neglected to perform, or failed to perform, the public duty which they owed to the plaintiff and other citizens. 6-cr-^ 580 BUTTRICK V. CITY OF LOWELL. We see no reason to question the autliorit}' of towns to build ancE own town-houses, to be used for holding town-meetings and other public purposes. But it by no means follows as a necessary conse- quence that it is the dut}' of towns to provide houses of their own for Buch purposes. And even where the town is provided with a town- bouse, we are not required, in the view which we take of this case, to say whether the duty to see that the house is in proper order for public use rests on the town in a corporate capacity, or on the officers of the town. There is no statute that requires town meetings to be held at the town-house, even in cases where the town owns such a building. On the contrar}-, the warrant of the selectmen notifying the meeting is b3' the statute " to prescribe the place." If the town-house were known at the time to be in an unsafe condition, it would hardly be contended that their duty would require tlie selectmen to notify- the meeting to be held there. It may perhaps bt^ fonnd. whon the question shall be considered, that it belongs t o the town officers, and not to the town in a corporate capacity, to see that the town meetings are held in a saf e and suitable place. We regard the present case as one of new impression. We have beard of no earlier attempt in this State to maintain an action against a town, for a private injury suffered by a citizen of the town from neglect of the town to provide him with safe and suitable means of exercising his public rights, and we are not informed of any case in which such an action has been maintained in an}' other State. We believe it to have been the general understanding of the profession in this State, that an action will not lie against a town for neglect to perform a mere public dut}', unless the action is given bj' statute. The authorities cited in support of the plaintiff's action are veiy distin- guishable, as we think, from the present case, and there is a great "weight of authority on the other side. Our conclusion is, that this action, on the case stated to us, cannot be maintained.^ i, . r \ BUTTRICK V. CITY OF LOWELL. 1861. 1 Allen (Massachusetts), 172.^ Tort for an assault and battery. A city ordinance provides, that " three or more persons shall not stand together or near each other in any street in the city in such -4.^ manner as to obstruct a free passage therein for passengers." While the plaintiff was standing peaceably, and talking with only one other person, upon the sidewalk, and interrupting no one in the proper use of the same, two police officers of the city of Lowell ordered him off, 1 See Snider v. St. Paul, 61 Minn. 466, 53 N. W. 763 ; Kelly v. Boston, 186 Mass. 166, 71 N. E. 299, 66 L. R. A. 429; Fox v. Philadelphia, 208 Pa. 127, 67 Atl. 356, 65 L. R. A. 214. 2 Statement abridged. — Ed. BUTTRICK V. CITY OF LOWELL. 581 and, upon his refusing to go, assaulted, arrested, and imprisoned him; claiming that by so doing they were only performing their official duty. The plaintiff brought an action of tort against the policemen for false arrest and assault and battery. The policemen attempted to justify their proceeding under the above city ordinance. The plaintiff recovered judgment against the policemen for $500 ; which judgment remains unsatisfied. The city of Lowell authorized its solici- tor to appear in the defence of said suit, and paid him for trying the same. The plaintiff now brings the present action against the city, to recover damages for said assault by the police officers. Upon an agreed statement, setting forth substantially the foregoing facts, a nonsuit was ordered. Plaintiff appealed. B. F. Butler ^ for the plaintiff. The rule regulating the liability of "a municipal corporation seems to be this: (1.) no liability exists for the negligence of public officers over whom it has no control save in their appointment; (2.) liability does exist, under the doctrine of rtspondent superior^ in all cases in which the servant is in the direct execution of a trust or order of the city or town, within the scope of its authority, or upon any matter upon which it may make by-laws. Gushing v. Stougliton, 6 Cush. 389. Thayer v. Boston^ 19 Pick. 511. Perry v. Worcester^ 6 Graj^, 544. T, II. Siveetser, for the defendant. BroELOW, C. J. This case must be governed by the decisions in Hafford v. City of New Bedford., 16 Gray, 297, and Walcott v Sicavipscott^ ante, 101. Police officers can in no sense be regarded as agents or servants of the city, ineir duties are of a public nature. Their appointment is devolved on cities and towns by the legislature , as a convenie nt mod e of exercising a function of government; but I *\ ^"^"^^ this does not render them liable for their unlawful or negligent acts. 'Ajt^ The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with which police officers and constables are intrusted, are derived from the law, and not from the cit}' or town under which they^ hold their appointment. For the mode in which they exe rcise their powers and duties the city or town cannot be held liable. ^^ Nor does it make any difference that the acts complained of werei vT done in an attempt to enforce an ordinance or by-law of the city. |**^^*^ The authority to enact by-laws is delegated to the city by the sover- • <**-^'*^"^^ eign power, and the exercise of the authority gives to such enact- ments the same force and effect as if they had been passed directly by the legislature. They are public laws of a local and limited opet' ation, designed to secure good order and to provide for the welfare and comfort of the inhabitants. In their enforcement, therefore, police officers act in their public capacity, and not as the agents or servants of the city. I 582 GILBOY V. CITY OF DETROIT. ^^ The facts relied on in this case to show a ratification or adoption by the city of the acts of the police officers cannot have that effect. They are entirely consistent with a belief on the part of the mayor and other agents of the city that the police officers had committed no unlawful invasion of the plaintiff's rights. Perley v. Georgetown^ 7 Gray, 464. It may be added that, if the plaintiff could maintain his position that police officers are so far agents or servants of the city that the maxim respondeat superior would be applicable to their acts, it is clear that the facts agreed would not render the city liable in this Si-*^"*^ '^**'^**^ction ; because it plainly appears that, in committing the acts com- ^^■*^'^J~*|jj^^|2*^lained of, the officers exceeded the authority vested in them by the r^t^^. by-law of the city.i ■^^ 1 Judgment for the d efendants . GILBOY ET AL. V. CITY OF DETROIT, Supreme Court of Michigan. December 7, 1897. Grant, J. This is an action of tort. The declaration alleges thVt^ /"V C *- IT— ^ 584 McDADE V. CITY OF CHESTER. remove any nuisance, whether on public or private ground ; and to cause the removal of an}' nuisance " b^' such means as to them sLall seem best." The court below gave judgment for defendant on the demurrer. Plaintiff hrrnight error, John Y. Bice {Garyiett Pendleton with him), for plaintiff in error. Orlando Harvey^ for defendant in error. Clark, J. [After stating the facts, and citing authorities applicable to a case where " a legal dut^' has been imposed bj- statute upon a municipal corporation."] But the dut}- imposed must be absolute or imperative, not such as under a grant of authority is intrusted to the judgment and discretion of the municipal authorities; for it is a well settled doctrine that a municipal corporation is not liable to an action for damages, either for the non-exercise of, or for the manner in which, in good faith, it exercises discretionary powers of a public or legisla- tive character. Dillon Mun. Corp. § 949. • •'••••• It is likewise true that when a power is given to do an act which concerns the public interest, the execution of the power, when applied to a public officer or body, may be insisted upon as a dut}', although the phraseology of the statute be permissive only ; especially is this so when there is nothing in the act save the permissive form of expression to denote that the legislature designed to lodge a discretionarv power merely. But where the power is lodged with persons exercising, or to exercise, legisla tive or judicial f unctions, and the subject-matter of the statute and its phraseoiogy concur in showing that the authority is essentially discretionary, no absolute duty is imposed. The true rule is very correctly stated in our own case of Carr v. Northern Liberties, 35 Pa. 330, as follows : " Where any person has the right to demand the exercise of a public function, and there is an officer or set of offi- cers authorized to exercise that function, there the right and the authority give rise to the duty ; but where the right depends upon the grant of authority, and that authority i^ essentially discretionary, no legal duty is imposed." The language of the several statutes above referred to is plainly per- missive onh'. ... It is plain, we think, that all the various matters menti(jned in the eighth section, including the prohibition and abate- ment of nuisances, were given into the control of municipalities as proper subjects for legislation in the government of the city ; and as such action necessarih- involves the exercise of discretion, no absolute duty was imposed or intended to be imposed b}- the legislature. Tlie whole question is one of legislative intention, and we find nothing in these several statutes to indicate that the legislature meant more than is plainly expressed. u^ WYATT V. ROME. 58; There can be no doubt whatever that the municipal authorities of tlie cit\- of Cliester had full power to act in the premises. They hnd un- doubted authority either to limit or to prohibit altogether the manufac- ture, sale or exposure of fire-worlvs within tlie corporate limits, and to provide such safe-guards for the security of its citizens as in their judg- ment might be necessary. Tliis subject-matter had been especially intrusted to their judgment and discretion in the charter and acts of assembly mentioned ; but certainly no person had any right to demand the exercise of this power in any particular way or to any greater extent than tiie mayor and councils, in good faith and in the exercise of their discretion, might see proper to provide. Judgment affirmed. i T-N WYATT V. ROME. 1898. 105 Ga. 312. Action for damages. Before Judge Harris. City court of Floyd county. December term, 1897. By ordinances of the City of Rome, every resident of that city was required to be successfully vaccinated, or to be vaccinated a sufficient number of times to make it evident that successful vaccination was C^"*"^ impossible ; and upon failure or refusal of any resident over fifteen years of age to be so vaccinated, it was provided that he should be punished by fine or imprisonment. At council meetings in August, 1897, it was ordered that these ordinances be immediately enforced and be published ; and that five physicians be employed to assist the city physicians in vaccinating all persons who had not been vaccinated. During the same month one of the physicians so employed approached the plaintiff in this case, and insisted that plaintiff show his arm, which plaintiff did. He said plaintiff would have to be again vacci- nated, and on his objecting, informed him that he would have to sub- mit, under penalty of the city ordinance. Plaintiff then submitted to the vaccination, under protest. He co nten ds tha t the city thereupon used upon his a rm vac cine matter w bicE was bad, poisonous and inju- rious, and f rom which bl ood p oison r es ultedj to his "greatda,mage ;' that the city bought and furnished to said physician thevaccme mat- ter that was so used, which when brought to the city was not marked •with the name of any manufacturer ; that all such matter unbranded ■with the name of a manufacturer is suspicious, usually impure and un- sound, and universally known to be impure ; and that the city was negligent in using the same. This action was brought to recover damages for the injury ; but the court dismissed it on demurrer. .»-'*■>■ 586 I to tb ( "WYATT V. KOME. Lewis, J. The right to prescribe regulations looking to the preser- vation of the public health is one of those sovereign powers that belong to the State. This power can be delegated by the State to any of its subdivisions of government, such as a municipality or a county, and in the use of it by such subdivisions they are in the exercise of a function purely governmental. As a general rule a subordinate branch of the government is n ot lia ble for injuries sustained by any one growintr out of neg ligence, misfeasance, or nonfeasan ce of its officers and agents who are charged with the d uty of enforcing laws or ordinances enacted for the public good in the exercise of a g overnmental function, and not in the exercise of a private franchise . The exceptions to this general" rule are not founded so much upon principle as judicial precedents. The rule itself is based upon a principle as old as English law, that "the King can do no wrong." It is upon this idea that the sover- eignty of a State protects it against suits by its subjects, no one hav- ing a right to hold it liable for any act of its officers or agents, unless such right is expressly granted by the State itself. When a munici- pality exercises a governmental power conferred upon it by the State, it is just as if the State itself were in the exercise of the function thus conferred. Among the precedents which have been established by courts of last resort, that are apparently exceptions to this general rule, we have been able to find none that would hold a city liable for any injury that may be sustained as the result of enforcing measures legally enacted for the promotion and preservation of the public health. On the contrary, authority is abundant and almost limitless establish- ing the non-liability of a municipality in such cases. We do not think this is an open question in this State, for it has practically been decided in the case of Love v. Atlanta, 95 Ga. 129. The reasoning for the decision in that case given in the lucid opinion of Justice Atkinson follows the uniform trend of judicial expression, and is especially ap- plicable to the case at bar. On page 133, he says: "If the State delegate to a municipal corporation, either by general law or by par- ticular statute, this power, and impose upon it within its limits the uty of taking such steps and such measures as may be necessary to the preservation of the public health, the municipal corporation like- wise, in the discharge of such dut}', is in the exercise of a purely gov- ernmental function, affecting the welfare not only of the citizens resident within its corporation but of the citizens of the common- wealth generally, all of whom have an interest in tlie prevention of infectious or contagious diseases at any point within the State, and in the exercise of such powers is entitled to the same immunity against suit as the State itself enjoys." Upon the same line, and practically in point, we cite the following as a few of the many decisions and authorities on this subject. 15 Am. & Eng. Enc. L. 1164-5, with citations; 2 Dill. Mun. Corp. §977; Tied. Mun. Corp. §332; Sher- bourne t\ Yuba County. 21 Cal. 113; Summers v. Commissioners, 103 Ind. 262, in which it is decided that "Counties are instrumentalities ! are instrumentalities .V^ > ^ W;.*^^^-^ -.t^> x^^JL^ h^J^AXyM^^ -Ki^ ^ -^ij^dbv "Votj^ ^-^^AAj8,i "5^^^ ^ HALEY V. BOSTON. 587 of government, and are not liable for injuries caused by the negligence of the commissioners in the selection of an unskilful or incompetent physician for the care of the poor " ; Ogg v. Lansing, 35 Iowa, 495j| in which it is ruled that "A city is not liable for the negligence of its offi-l cers or agents in executing sanitary regulations, adopted for the purpose' of preventing the spread of contagious disease, or in taking the care and custody of persons afflicted with such disease, or the houses in which such persons are kept." The city in the present case was in the exercise of a most important function of government in which not only the inhabitants of the city but the public at large were interested. The measure in question which it adopted looked to the prevention of the spread of a contagious and serious malady with which it was at the time perhaps threatened. To allow any citizen a right of action on account of injuries real or supposed that he may have suffered in the interest of the public good would be to paralyze the arm of the municipal govern- ment, and either render it incapable of acting for the public weal, or would render such action so dangerous that the possible evil conse- quences to it, resulting from the multiplicity of suits, might be as great as the small-pox itself. Hence the wisdom of the law in exempting it from liability on such an alleged injury as is set forth in the petition. It was not contended, either in the pleadings or argument, that the City of Rome did not have the right to pass the ordinance requiring its citi- zens and residents to submit to vaccination. On the contrary, the suit was not based on any alleged want of authority in the city to legislate on the subject, but solely on the negligent manner in which the city, through its officers and agents, enforced this ordinance. Judgment affirmed. All the Justices concurring. BOSTON. 191 Mass. 291. 'Sheldon, J. This is an action of tort brought to recover for per- sonal injuries alleged to have been received by the plaintiff through the negligence of the driver of a cart belonging to the defendant. The driver drove the cart over the plaintiff's leg and broke it. There was evidence of the plaintiff's due care and of the driver's negligence. The judge ordered a verdict for the defendant, and the only question now raised by the plaintiff's exceptions is whether the defendant can be held to be responsible for the driver's negligence. The driver was employed by the sanitary division of the street department of the city. This division moved garbage, house offal and ashes from buildings in the city, without charge, except that.,a;_fee qf_ten cents a barrel , just enough to cover the expenses of removing 588 HALEY V. BOSTON. them, was charged for removing steam engine ashes. No charge was made for removing ashes from dwelling houses. From removing engine ashes, the city received an income of something over $10,000 a year, and between $2,000 and $3,000 a year from the letting of space on scows of this division to various persons for the removal of offal and w^aste matter, the sale of manure and the rent of part of a wharf. The total expenses of this division above income were $623,000. The cart which ran over the plaintiif was loaded with ashes taken from dwelling houses, and there were no steam engine ashes upon it. The Revised Ordinances of 1898 of the city of Boston put ia evidence provide in c. 1, § 8, that the various departments are ' ' placed under the charge of the officers or boards designated there- for, under the general supervision and control of the mayor " ; and ia c. 38, § 1, that the street department, among other things, "shall remove from yards and areas, when so placed as to be easily removed, all ashes accumulated from the burning of materials for heating build- ings or for domestic purposes, all house dirt, house offal, and all noxious and refuse substances." The ordinances also provide in c. 47, -♦^ ^ I § 18, that '* no person, other than employees of the city engaged in oT»«^^ I public work, shall, in any street, carry house dirt, house offal or other •-J^**— ^ I refuse matter, except in accordance with a permit from the board ^vpi^v-a-^.'of health." The general rule is well settled in this Commonwealth that a city or ^jJiJlH^ town which voluntarily undertakes work of a commercial character, ^ n,tJ- Vfrom which it sepks to derive revenue or otuer special advantage, "is * 1 l iable like a private employer for th e negligence of its servants or agents who are engaged therein . JJuggan v. J^caoody, iin iviass. i54y. Little V. Holyoke, 177 Mass. 114. D'Amico v. Boston, 176 Mass. 599. Lynch v. Spriyigfield, 174 Mass. 430. So, too, if it has chosen to take the work of repairing or constructing a street or bridge out of the charge of the officers designated bylaw, anditself to assume direct con- trol of the work, it ma3^be held liable for the negligence of the servants or agents whom it employs for that purpose. Butmcm v. Newton, 1 79 Mass. 1. Collins \. Greenfield, 172 Mass. 78, 81. Dohertyy. Braintree, 148 Mass. 495. Waldron v. Haverhill, 143 Mass. 582. Deane v. Ran- dolph, 132 Mass. 475. Hawks v. Charlemont, 107 Mass. 414. So it may be held for negligence in the construction of water works or • the laying of water pipes. Lynch v. Sj^^ringfield, 174 Mass. 430. Fox v. Che/sea, 171 Mass. 297. Stoddard v. Winchester, 157 Mass. 567. Perkins v. Lawrence, 136 Mass. 305. Hand v. Brookliiie, 126 Mass. 324. Like liability has been held to exist in the case of appliances and supplies used for the lighting of streets, _o n the ground that one of the purposes aimed at, at least incidentally, is to facilitate the use of the public ways for which the city is responsible, and to guard against the liability that might exist for accidents caused by any defect therein. Dickinson v. Boston, 188 Mass. 595. Sullivan v. Holy- oke, 135 Mass. 273. IV Iany of these cas es have been put on the ground ,^JU>J^ HALEY V. BOSTON. 589 that the enterprise eDgao;ecl in was partl y of a commercial cha racter . irom which revenue or othe r advantage was ex pected to be realized. ^ And where this element exists, liability has been maintained altnougnl €iJ«^j-«>*' the work engaged in was only partly of the nature of a business enter- 1 ^^^^oV^J^ prise, being incidental both to public and to commercial undertakings. (^-^iiSzj Davies v. Boston, 190 Mass. 194, decided since 'this case was argued. rJ Dnggan v. Peabodjj, 187 Mass. 349. Collins v. Greenfield, 172 Mass. 78. Nefv. Wellesley, 148 Mass. 487. Oliver \. Worcester, 102 Mass. 4'89. The liability for negligence in the construction or maintenance of se wers comes under this doctrine. Manning v. Springfield, 184 Mass. 245. O'Brien v. Worcester, 172 Mass. 348. But these excep- tions never have been held in this Commonwealth to affect the general rule that a city or town is not to be held to any liability for the negligence of persons employed by it in work merely of a pub- lic character required or authorized to be done and undertaken without compensation in the performance of a public duty. Taggurt v. Fall River, 170 Mass. 325. Kelley v. Boston, 186 Mass. 165. Tindley v. Salem, 137 Mass. 171. Pratt v. Weymouth, 147 Mass. 245. Hafford V. New Bedford, 16 Gray, 297. And this general principle of exemp- tion from liability extends to negligence of persons employed in carry- ing out undertakings performed under authority of law in behalf merely of the public health, though of a character for which liability otherwise might be maintained. Harrington v. Worcester, 186 Mass. 594. Benton v. Trustees of Boston City Hospital, 140 Mass. 13. It becomes material then to determine what is the character of this <2.*«^vv*rj>rii work of removing ashes from dwelling houses ; and it seems to us to \ »■» * '~ft -. be work of a public nature. It is provided by statute that a town may • *! ^ F^ contract for the disposal of its garbage, refuse and offal. R. L. c. 25, 'V.^j^Ujo § 14. It is not a strained construction to include ashes under the term '■'• refuse.I" This word is defined by the Century Dictionary as "that which is refused or rejected; waste or useless matter; the worst or meanest part ; rubbish." Ashes have been held to be in- cluded within the meaning of this word in England. Gay y. Cadby, 2 C. P. D. 391. There is nothing inconsistent with this in the point de- cided in St. Martin's v. Gordon, [1891] 1 Q. B. 61, holding that clink- ers produced in the furnaces of a hotel are not refuse of a trade, manufacture or business, although Gay v. Cadby, ubi supra, is criti- cised in the opinions. So in State v. Hoivard, 72 Maine, 459, refuse wood was held to include sawdust and shavings. And much of the reasoning of the court in Vandiue, petitioner, 6 Pick. 187, as to house dirt and offal, is equally applicable to ashes produced in dwelling houses. So in Commomvealth v. Cutter, 156 Mass. 52. It is not material that under the statute above cited municipal corporations are simply authorized instead of being required to attend to this work. Tindley v. Salem, 137 Mass. 171. We are of opinion that, unless this case is to be distinguished by reason of the fact that a charge was made for the removal of steam 590 HALEY V. BOSTON. engine ashes, it must come under the rule that cities and towns are not to be held liable for negligence, in the words of C. Allen, J. in Tindley V. Salem, ubi supra, " when, acting under general laws applicable to all cities and towns alike, they have undertaken a particular sei*vice or work, which has no direct or natural tendency to injure any indi- vidual in person or property, and no element of special corporate advantage as a consideration for undertaking it, or of pecuniary profit or contribution from individuals especially benefited, either by way of aid in the performance of the work or of compensation for its use or benefit after its completion ; and where no pecuniary penalty or liability is imposed by statute in case of defective or negligent per- formance of the undertaking ; but where their action is exclusively and purely as a matter of public service, for the general and common good." Nor do we think that the whol e of this se rvice was commercialized because a charge, lust enough to cover the expense involved, was ^ ^ J j^mjAk ^^^^ for the removal of steam engine ashes. If this injury had been ^ ^^ y Viu^caused by the negligence of the driver of a cart used for the removal i;.,^^ I of such ashes, a somewhat different question would arise, as to which l^ V** I we express no opinion. It was said in Murphy v. Needham, 176 Mass. 422, 424, 425, that the subject of inquiry was the nature of the duty in which the superintendent who was contended to have been negligent was engaged at the time of the accident ; and in this case it appears that at the time of the accident the cart in question was removing only 'dwelling house ashes. The ordinances of the city are in their terms applicable only to house ashes in contradistinction to steam engine ashes coming from factories or similar sources. Revised Ordinances of 1898, c. 38, § 1 ; c. 47, § 18. There js nothing to show that steam engine ashes were removed in the same carts, by the same drivers, or at_t he same times, with house ashes. The latter were taken away as a matter of duty, solely for the public good, under the ordinances above quoted ; steam engine ashes seem to have been taken as a matter of contract merely, though doubtless with a view to public convenience. The ordinances made a distinction between these two kinds of ashes ; apparently the same distinction was observed in practice. It cannot be said that the same rule of liability would apply to the separate classes which are thus distinguished from each other, or that they can be regarded as so far constituting one subject matter that the tak- ing of compensation for one of them results in the commercialization of both. Exceptions overruled. KIPPES V. LOUISVILLE. KIPPES V. LOUISVILLE. 591 1910. U0Ky.42S. Carroll, J. The appellant, who was the plaintiff below, averred in a petition filed by her against the appellee to recover damages for personal injuries, that she was injured by the negligence and careless- ness of the agents and employees of the city who were at the time engaged in flushing the streets with a hose that was in such an unsafe and defective condition that it burst and threw water upon her, thereby causing her to contract a severe cold that impaired her health. In the third paragraph of its answer the appellee city alleged that the flusher referred to in the petition, and the other street flushers owned and operated by it, were used for the promoti on and pres erya- tion of the health of the people of the city, and were necessary for tfils purpose,' as well as for the comfort and safety of the general pub- lic. That at the time of the accident complained of the employees of the city, or one of its departments, in charge of the flusher, were en- gaged in flushing the streets of the city, and that for this service the city did not receive or c harge^ajiy vpTriiinpratir.n nr pvr.fit hnt ([[(\ the work solely for the promotion of the health, safety, and comfort of the inhabitants of the city and the general public ; and that in using the flusher it was exercising a governmental function of the city. To this paragraph a. rjemurre r was interposed, and overrulgd, there- upon the plaintiff properly conceiving that the facts set out in this paragraph, if it presented a defense, as the lower court ruled it did, would defeat a recovery, elected to stand by her demurrer, and the petition was d ismissed . It will thus be seen that the only question presented is, whether or not the flushing of the streets of the city was a public duty undertaken* by the city in the exercise of its governmental functions, for the benefit of its people and the public generally, or a service performed by the municipality for private or corporate purposes as distinct from its dutj^ to the public generally. It must be admitted that many of the distinctions that this court, as well as other courts of last resort, have made between what are desig- nated the public and private powers, duties, and liabilities of munici- pal corporations, are difficult to understand. Nevertheless, the line of demarcation has been drawn with more or less precision, and it is generally ruled that service similar in purpose and effect to that the city was performing when the appellant was injured falls within what are called the public or governmental duties of a city. In fact we have expressly held that sprinkling the streets of a city is essential to the health, comfort, and safety of its inhabitants as well as the pub lic ts street§i Putting the service the agents of the generally. Who "use city, or one of its departments, were performing at the time the plain- ijx>-ftJr 592 HUGHES V. MONROE COUNTY. tiff was injured, upon the ground mentioned, the decision of the lower court is supported by a number of opinions delivered by this court as well as the weight of authority in other jurisdictions. Having v. City of Cori)igton, 25 Ky. Law Rep. 1617; Twyman \. Board of Council of ike City of Frankfort, 117 Ky. 518; Board of Park Commissioners V. Printz^ reported in 127 Ky. 470 (but cited by counsel for appellee as being in 32 Ky. Law Rep. 359) ; Maydivell v. City of Louisville^ reported in 116 Ky. 885 (but cited by counsel for appellee as being in 25 R. 1062) ; Connolley v. Mayor of City of Nashville, 100 Tenn. 262. Wherefore, the judgment of the lower court is affirmed. ■^ HUGHES V. MONROE COUNTY, "x ^^ fr^ ^ t 1895. 147 N. Y. 49. ^"'^^S^'^rf C V^ Bartlett, J. The plaintiff appeals from an order, made on a mo^ « tion heard at the General Term in the first instance, granting a new ^ trial after verdict at the Monroe Circuit in her favor. ^^ The plaintiff, an employee at the Monroe County Insane Asylum, ^"V. was severely injured while operating a machine known as a steam ■€»f mangle, which was used in the laundry, a At the trial it was insisted on behalf of the defendant that the ^^ county of Monroe was not liable in any event; that, assuming its Ha- JLj* bility, the plaintiff had failed to make out a cause of action. As we are of opinion that the county of Moaroe is not liable under f" the facts as disclosed in this record, it is unnecessary to determine L whether the plaintiff was entitled to go to the jury. The plaintiff was injured February 11, 1891. Before this action /2-^ was commenced the County Law of 1892 was in force, but it is un- necessary to examine its provisions, as the status of the county of ^ Monroe on the 11th day of February, 1891, must determine its O^ liability. J Prior to the year 1863 the county of Monroe cared in part for its ^*^ insane in a department of the county poorhouse. By chapter 82, Laws '">\^J^ of 1863, it was enacted that the insane asylum of the county of Mon- roe should be a separate and distinct institution from that of the ^*- ]\Ionroe county poorhouse, and the board of supervisors were placed in -"^-s. control and authorized to elect a warden, who was to hold office for • three years, and a board of three trustees for a like term. «r The warden was constituted the chief officer of the asylum, subject ^^ to the regulations established by the board of supervisors ; all pur- chases for the asylum were to be made by the warden under the direc- tion of the trustees ; all contracts with the attendants and assistants were to be made in the official names of the trustees ; the warden was HUGHES V. MONROE COUNTY. 593 also required to make out and deliver to the trustees annually an in- ventory of all property belonging to the asylum ; the warden was also authorized to make contracts for the support of insane persons of the county, and by the direction of the board of supervisors or the trustees to demand from the state lunatic asylum all persons who were cliarge- able to the county of Monroe or to any town or city in the county. It was further provided that no insane person residing in the county of Monroe and likely to become a county charge should thereafter be admitted to the state lunatic asylum without the written consent of the trustees of the Monroe county asylum or the chairman of the board of supervisors. By chapter 633, Laws of 1870, it was made the duty of the trustees to determine all questions in relation to the indigent insane as to whether their maintenance was properly a charge upon a specified town within the county of Monroe, or upon the city of Rochester, or upon the county of Monroe ; the trustees were also empowered when any lunatic, not indigent, was placed in the asylum, to charge his estate, or the person legally responsible, for his maintenance and to collect the same. It will thus be observed that the county of Monroe, being legally chargeable as one of the political divisions of the State with the cai-e of its insane, saw fit in 1863, with the consent of the legislature, to under- take the discharge of that duty through the instrumentality of a county asylum. In other words, the county of Mo nroe from that tim e shared with the state the burden of caring fo r the i nsane, w ithdr ew from the stat e lunatic asylum all ind igent in sane for whose ma inte nance it wa s liabTe and secured legislation requiring all the pauper insane of the county to ente r its own asylum . ~~ When an insane person is deprived of his liberty and the custody of his property, placed in close confinement, and separated from family and friends, it is an extreme exercise of the police power by the state, or some political division thereof, for the protection of society and to promote the best interests of the unfortunate victim of mental alienation. It, therefore, follows that the county of Monroe while acting under the statutes referred to, was engaged in the discharge of a most im- portant public duty and, consequently, not liable to the plaintiff iu damages by reason of her injuries. Dillon on Municipal Corporations [4th edition], sec. 693; Addison on Torts [Banks' ed.], p. 1298, section 1526. In Maxmilian v. Mayor of New York (62 N. Y. 160), this court laid down the rules of law that control this case. The plaintiff sought to recover damages for the death of her intestate, who was killed by an ambulance wagon which was driven by an employee of the commis- sioners of charities and corrections. It was held that when the city of New York by legislative enact- 594 HUGHES V. MONROE COUNTY. ment, was required to elect or appoint an ofBcer to perform a public duty laid not upon it, but upon the officer, in which it had no private interest, and from which it derived no special advantage, such officer is not a servant or agent of the municipality for whose acts it is liable even though the officer had in charge and was negligently using corpo- rate property. Judge Folger said (page 164) : " There are two kinds of duties which are imposed upon municipal corporations ; one is of that kind which arises from the grant of a special power in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, under the exercise of which it is as a sovereign. The former power is private and is used for private purposes ; the latter is public and is used for public purposes. Lloyd v. The Mayor^ 5 N. Y. 374. . . . But where the power is intrusted to it as one of the political divisions of the state and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for non-user, nor for misuser by the public agents. Eastman v. Meredith, 36 N. H. 284." In the case at bar, it is true, we are not dealing with a municipal corporation, for in February, 1891, the county of Monroe was a politi- cal division of the state, and at most only a quasi corporation ; but, nevertheless, the reasoning in the opinion just cited is applicable. By the act of 1863 the county of Monroe, through its board of super- visors, was required by tlie legislature to elect a warden and trustees of its insane as^'lum to perform an important public duty in which it had no private interest, and from which it derived no special advan- tage. The warden and trustees, when so elected, were in no legal sense the agents of the county of Monroe, but were public officers engaged in the discharge of duties which involved the exercise of- the police power, and in which the general public were interested. While the county of Monroe, by its board of supervisors, was em- powered to enact general rules and regulations for the government of the asylum, and to elect its warden and trustees, it had no power to interfere directly with the management of the institution unless the warden so elected was guilty of misconduct, when he could be re- moved by the board of supervisors. The non-liability of counties and also of municipal and other corpo- rations having special charters for the acts of their officers when en- gaged in the discharge of public duties, and to that extent exercising acts of sovereignty, is established by many cases. Ensign v. Super- visors of Livingston County, 25 Hun, 20 ; Alamango v. Supervisors of Albany Comity, 25 id. 551 ; ffayn v. The Mayor, 70 N. Y. 459; Smith V. City of Rochester, 76 id. 506 ; Benton v. Trustees of Boston City Hospital, 140 Mass. 13; Curran v. The City of Boston, 151 id. 505. The learned counsel for the plaintiff, evidently appreciating the MELKER V. NEW YORK. 595 force of the general rule to wliich we have adverted, sought to show that the case at bar was, by reason of special facts, not within its operation. It is insisted that the defendant, at the time of this accident, was not only caring for the pauper insane of Monroe county, but also for other patients through-contracts made for that purpose. ^ | There is no evidence that the county of Monroe was caring for in- 1 Cer**"^^ sane patients not residing in the county, for a consideration, but if |>^ v^3^^ fair construction of section seven of chapter 82 of Laws of 1863, limits! *''*''*Jt.'\prv the contracts to be made "to any individual of said county" who* >xr>> •Aft'** wishes to contract as to the care of the insane of Monroe county. w>'*-«»~' There can be no doubt that the committee of a lunatic, or any one . Pj^^.^'X^^ legally liable to support him, should, in the first instance, be required I ^rv-*-o-*" f^-* to pay for his maintenance, and the income derived in this manner is I w-^/-,~35A~ in no sense a source of profit to the county so that it would be deemed | ^' >^^ Jk>- t 1908. 190 .V. y. 481. ANN, J.^ This action was brought to recover damages for per- sonal injuries alleged to have been sustained by the plaintiff through the fault of the defendant. Tlie complaint contains two counts, one 1 Arguments omitted. — Ed. ^^ 596 MELKER V. NEW YORK. IS tb/uLo»»»^alleging negligence, which was not relied upon at the trial, and the ! -» -'xA^-<^ age was caused by fire resulting from the discharge of a rocket directly ^lU>-CJu-o-«v through a window of the plaintiff's house. Chief Judge Andkews, 'V-«kj^,r\*»r. speaking for the court, said : " The finding of the trial judge that the jC^^^^iX use of the street for the discharge of fireworks constituted a public (^.'%*««»-** nuisance is amply justified in view of the circumstances. It has been-^ ^AJ^ 1^1 decided in some cases that the discharge of fireworks in the streets of fv-o^-^^Ji a city or village is a nuisance per se and subjects persons engaged in the transaction to responsibility for any injury to person or property resulting therefrom. Jenne v. Sutton^ 43 N. J. L. 257; Conklin v. TJiompson, 29 Barb. 218. It may be doubted whether the doctrine in its full breadth can be maintained. The practice of making the dis- play of fireworks a part of the entertainment furnished b}' mui.icipali- ties on occasions of the celebration of holidays or the commemoration of important public events is almost universal in cities and villages, and we are not prepared to say that this may not be done, and that streets and public places may not be used for this purpose under the supervision of municipal authorities, due care being used both as to the place selected and in the management of the display, without sub- jecting the municipality to the charge of sanctioning a nuisance and x the responsibility of wrongdoers." The final conclusion announced was o-^^ f^ that the circumstances were such as to authorize the trial court to ''*'*'"*'^lx^ hold the city liable for an "unreasonable, unwarranted and unlawful ''\ rx Xr'^SJ^ use of the streets," and that such use " was properly found to consti- tute a nuisance." The emphasis of the opinion rests on the location at tlie junction of two narrow streets and the imminent danger of fire owing to the contracted space and the inflammable nature of the mate, rials used. Speir v. City of Brooklyn, 139 N. Y. 6, 11. — *^*-^ (^X3=:<>aSu, «r i'v.-^Ju^-.^ XA.-s^»— ^ " 598 MELKER V. NEW YORK. ^^^_ The later case involved the display of fireworks now under consider- ^^^_^ '^ ation, where the space was ample, the danger from fire comparatively '^^-^f^ light, the management in charge of experts of high standing, the aeci- ■***^'^*^ f dent of unknown origin and of a kind not reasonably to be appre- -3S>^ y hended. Upon the first trial of that case the plaintiff had a verdict, rL^st-^Cyo which was reversed by the Appellate Division, Landau v. Citi/ of ^^S*^" Netv York, 90 App. Div. 50. Upon the second trial there was a non- suit and the Appellate Division affirmed, but we reversed and granted a new trial upon the ground, distinctly announced, that "a case was made for the jury." In discussing the subject we said: "There is a distinction, well recognized by law, between the discharge of fireworks upon private property and in a public highway. There is also a dis- tinction in this regard between highways, depending on their location, the extent of the traffic upon them and the danger involved in case of accident. Fireworks in certain streets may or may not be a nuisance, according to the circumstances, which usually present a question of fact. In the case now before us we have to do with a crowded street, near the center of the largest city on the continent, ' where any misad- venture in managing the discharge would be likely to result in injury to persons or property.' Fireworks exhibited on an extensive scale in a great thoroughfare, in the midst of a large city, where a vast multi- tude of people is assembled, if not a nuisance as matter of law, may properly be found such as matter of fact. This was so adjudged in the Speir case, which is controlling in principle." We held that " while a municipal corporation is not liable for the failure to pass ordinances prohibiting the discharge of fireworks in the public streets, it is bound to e xercise due care to keep its streets m safe con dition, and is liable for permitting dangerous obstructions or nuisances therein." Landau V. City o/Neiv York, 180 N. Y. 48. "We intimated that the exhibition might be a nuisance as matter of law, but all we decided was that the nonsuit was improper and that the case should have been sent to the jury. A similar intimation was given in another case, but the actual decision was that there was a question of fact as to the alleged negligence of the defendant. Crowley V. Rochester Fireivorks Co., 183 N. Y. 353. It now becomes our duty to decide whether the exhibition, which resulted in a frightful disaster, was a nuisance as matter of law. For time out of mind the term " nuisance " has been regarded as in- capable of definition so as to fit all cases, because the controlling facts are seldom alike, and each case stands on its own footing. We are not aided by the classification into public and private nuisances, be- cause the difference between them does not depend on the nature of the thing done, but on the fact that one affects the public at large and the other a limited number only. The primary meaning of the word, suggested by its derivation, is that which injures, or, in the quaint phrase of ancient times, " that which worketh hurt." The injury may bo to person or property, to health, comfort, safety or morality. It u;ay be a crime. Penal Code, § 385. Courts of high standing have MELKER V. NEW YORK. 599 held that a nuisance at law, or a nuisance per se, exists only when the ^^ " l!ip^ act done is a nuisance at all times and under any circumstances, regard- *'^'"''-^»^-*'~*^ less of location or surroundings. Hundley v. Harrison., 123 Ala. 292 ; Whitmore v. Orono Pulp & Paper Co., 91 Ikle. 297 ; Windfall Mfg. Co. V. Patterson, 148 Ind. 414. Other courts make fitness of locality the standard and give conti'oUing effect to surrounding circumstances," holding certain acts not permissible as matter of law under some cir- cumstances, but permissible under others and under others still not per- missible if the jury find them nuisances as matter of fact. The weight of authority in this state and elsewhere is in accordance with the latter view, except when the act is malum in se, when the surrounding cir- cumstances have no bearing upon the question. "We think that each case must depend on its own facts for classifica- tion as a nuisance at law, or in fact, or neither. Without attempting a general definition we ai-e of the opinion that asjij ^ljp^ tn f iio fni-]^ of the case before us, if the natural tendency of the act complained of ' IS to create danger and inflict iniury upon person or property, it may p roperly be founda nuisance as mni.^^i'^^-.fn.f^ | iut if the act in its in- her ent nature is so hazardous as to make the danger extreme and seri- OU8 injury so probable as t o be almost a certainty, it should be held a nuisance as matter of law. While this definition lies on the border ol the domain ol laci, any clefinition of a nuisance at law must necessarily lie there, for it is a fact, but so conclusive in legal effect as to be treated as a matter of law. Locality, surroundings, methods, the de- gree of danger, and the custom of the country are the important fac- tors. The firing of a cannon loaded with grape shot, if in a city or village, would be a nuisance as matter of law ; if in a remote place far from the habitations of man, it might be a nuisance as matter of fact, and if against the face of a precipice, no nuisance at all. "What were the surroundings and the degree of danger reasonably to be apprehended from the exhibition in question, when considered, not in the light of what actually took place, but in the light of what was likely to take place? It was not at the junction of two narrow streets, '^'>i'^ skill and exp erience. The fir eworks w ere all mad e by a leading I ^ manufacturer of high repu te. For more than thirty years he had given \ similar displays, with similar pieces, all over the world, without an accident of moment. Eepeatedly, in Madison square, in Union square and in City Hall Park, during the Spanish war, on election nights, at the opening of great public works and on other occasions, he had given such exhibitions with no bad results. He had never known a mortar to explode before and it was the explosion of a mortar used for the purpose of firing bombs that caused the accident. All the mortars ha d been c arefu lly tes ted on t he day of the exhibit ion an d each r e^ sponded to the tap of the hammer with that clear ring which indicates a sound c ondition. The explosion was owing to some cause so secret 600 MELKER V. NEW YORK. and unprecedented that it could not be explained. Army officers of great experience in testing explosives made many experiments with similar mortars soon after the accident, at the request of the district attorney, but they could not state the cause of the explosion and they regarded the mortars as safe. The expert called by the plaintiff, an ex-army officer who had made many tests in behalf of the government, likened the occurrence to the firing of a gun hundreds of times with- out danger, when at last " you suddenly have a burst that cannot be explained." He looked for the unexpected and favored precautions to meet what possibly might happen. He thought that "as an extra precaution" space should have been " roped off for one hundred feet" and that the mortars should have been sunk below the surface of the ground so that a possible explosion would do no damage. The other experts were of a different opinion, and some thought that burying in the ground would increase the danger. The occasion was one of public rejoicing by many people. For gen- erations such exhibitions have been common thi'oughout the country. Our great national holiday never passes without them in many places all over the land. National victories, the victories of political parties and the success of organizations comprising a multitude of persons, for time out of mind have been celebrated by such displays. It is a common method by which large bodies of people express their satisfac- tion and joy over some event they deem important. Fireworks are widely used to express patriotism, triumph and gladness, to celebrate public events, to entertain crowds of people and for various purposes, too numerous to mention. Such uses are no innovation but are in ac- cordance with an old and well-settled custom of the country, sanctioned by the practice of every community. The custom may not be wise, but it is almost universal and indicates the average judgment of our [ citizens upon the subject. An exhibition of fireworks is not malum in se, but is evil or innocent according to circumstances. Unless malum in se, like a disorderly house, for instance, a nuisance is a matter of degree. Thus we have held that the storage of gunpowder is not a nuisance per se and that it "depends upon the locality, the quantity and the surrounding circum- stances," which are for the consideration of the jury. Heeff v. Licht, 80 N. Y. 579. A nuisance does not rest upon the degree of care used, for that presents a question of negligence, but on the degree of danger existing even with the best of care. Degree implies gradation, and gradation depends on circumstances. When the degree of danger is obvious and so extreme as to invite calamity, a nuisance per se ex- ists, but when the danger is so secret in nature that the cause of an accident cannot be discovered and according to all experience is neither imminent nor extreme, it is not a nuisance per se, although the jury may find, it a nuisance in fact. When disinterested army officers, expert from years of official experiments, testify that the de- gree of danger was so slight that they regarded the mortars as safe MOWEE V. INHABITANTS OF LEICESTER. 601 and the only difference of opinion related to the method of nsinj; them, it would be hazardous to hold the danger so inherent and the degree of danger so extreme as to make the act a nuisance of itself, independ- ent of the attending circumstances. If the circumstances are to be considered, they must be weighed in order to get at the degree of dan- ger and the weight of evidence is for the judges of fact. The circum- stances of this case do not call for the hard and fast rule of a nuisance as matter of law, but for the judgment of a jury whether the occurrence was a nuisance as matter of fact. The terrible but unprecedented result may suggest regulation or restraint by the legislature, but it is safer for the courts, following the weight of authority throughout the country, to leave such questions to a jury, even at the risk of inconsistent ver- dicts, rather than to lay down a rigid and imlexible rule, less calcu- lated to do justice in a majority of cases. The judgment appealed from should be affirmed, with costs. CuLLEN, Ch. J., Gray, Werner, Hiscock and Chase, JJ., con- cur ; Edward T. Bartlett, J., absent. Judgment affirmed (JU- bV vi .nglish county. o Bi(/elow, for defendants. [Argument omitted.] Curia. The plaintiff has brouglit his action against the inhabitants of the town of Leicester, for the loss of his horse, occasioned by the neglect of that town to keep a certain bridge in repair. The action is at common law ; without alleging any notice to the inhabitants of the defect in the bridge, previously to the incurring of the damage b}' the plaintiff. — But it is well settled that the common law gives no such action. Cori)orations created for their own benefit stand on the same ground, in this respect, as individuals. But mmsi corporations, cre- ated b}- the legislature for purposes of publick policy, ai'e 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 ac- tion be given by some statute. The only acjjpn f u rnished by statu^L e in this case is for double da m ages after notic e, «&c. — This question is full}' discussed in the case of Russell & al. vs. The men of Devon., cited at the bar, and the reasoning there is conclusive against the action. Judgment arrested} ^ " In considering the subject of the implied liability (by which we mean a liability ^>ja^ ( where tliere is no express statute creating or declaring it) of municipal corporations ^^^% to civil actions for misconduct or neqJect on their part, or on the part of their officers in >l^\j^^ respect to corporate duties, resulting in injuries to individuals, it is essential to bear in C^^^^"7 mind the distinction pointed out in a former chapter, and to be noticed again here- f ^ - « )> - after, between municipal corporations proper, such as towns and cities specially char- -T , tcred or voluntarily organiziug under general acts, and involuntary quasi corporations, \*C!>^A>i3»**uch as townsliips, school districts, and counties (as these several organizations exist in most of tlie States), including therein for this purpose the peculiar form of organi- zation, before referred to, known as the New England town. The decisions of tlie courts in this country are almost uniform in holdiug the former class of corporations to a much more extended lial)ility than the latter, even where tlie latter are invested with corporate capacity and with the power of taxation ; but respecting the ijrounds for this difference, there-is considerable diversitv o£ opinion." 2 Dillon Mun. Corp., - 4thed, s. 961.-ED. Dl** frA<»^ ^ <(.S'«()'Cv--t^'<>fO(»^y-^*"-^ .^- CITY OF DETROIT v. BLACKEBY. 1870. 21 Michigan, 84.1 Action against the city of Detroit for an injury occasioned by defects in a cross walk across a public street. [There was no statute giving, in terms, an action against the city for damage occasioned by defects in streets ; but the city was incorporated by special charter, and had, under the charter, the sole control of its streets and highways, with power to keep them in repair.] In the Circuit Court the decision was for the plaintiff; and the city brought error. J. P. Whittemore, for plaintiffs in error. Geo. If. Frentis., and Theo. Moineyn, for defendants in error. Campbell, C. J. . . . The streets of Detroit are pubUc highways, designed like all other roads, for the benefit of all people desiring to travel upon them. The duty or power of keeping them in proper con- dition is a publ ic and n ot a private duty, and it is an office for tiie per- formance of which there is no compensation given to the city. Whatever liability exists to perform this service to the public, and to respond for any failure to perform it, must arise, if at all, from the implication that is claimed to exist in the nature of such a municipalit}'. There is a vague impression that municipalities are bound in all cases to answer in damages for all private injuries from defects in the public ways. But the law in this State, and in most parts of the country, rejects this as a general proposition, and confines the recovery to causes of grievance arising under peculiar circumstances. If there is any ground for recovery here, it is because Detroit is incorporated. And it depends therefore on the consideration whether there is anything in the nature of incorporated municipalities like this which should sul\ject them to liabilities not enforced against towns or counties. The cases which recognize the distinction apply it to villages and cities alike. It has never been claimed that the violation of dutv to the public was any more reprehensible in tliese corporations than outside of them ; nor that there was an}' more justice in giving damages for an injury sus- tained in a city or village street than for one sustained outside of tlie corporate bounds. The private suffering is the same, and the official negligence may be the same. The reason, if it exists, is to be found in some other direction, and can only be tried by a comparison of some of the classes of authorities which have dealt with the subject in iiand. It has been held that corporations may be liable to suit for positive mischief produced by their active misconduct, and not from mere errors of judgment. . . . Thayer v. The City of Boston .^ 19 Pick., 511, was a case of this kind, involving a direct encroachment on private prop- 1 Statement abridged. Arguments omitted. — Ed. g04 CITY OF DETROIT V. BLACKEBY. erty. . . . Lee v. Village of Sandy Hill, 40 N. Y., 442, involved a direct trespass. The injuries involved in these New York and Massachusetts cases referred to were not the result of public nuisances, but were purely private grievances. And in several cases cited on the argument, the mischiefs complained of were altogether private. The distinction between these and public nuisances or neglects has not always been observed, and has led to some of the confusion which is found in the authorities. In all the cases involving injuries from obstructions to drainage, the grievance was a private nuisance. [After referring to authorities.] Upon any theory which sustains the liabilit}' for such grievances, however, it is manifest that the injury is not a public griev- ance in any sense, and does not involve a special private damage from an act that at the same time affects injuriously the whole people. Another class of injuries involves a public grievance specially injur- ing an individual, arising out of some neglect or misconduct in the management of some of those works which are held in New York to concern the municipality in its private interests, and to be in law the same as private enterprises. • • •••«•• The cases in which cities and villages have been held subject to suits for neglect of public duty, in not keeping highways in repair, where none of the other elements have been taken into the account, are not numerous, and all which quote any authority profess to rest especially upon the New York cases, except where the remedy is statutory. [After citing various New York cases.] \ysn. S"t ^^16 ^^^^- of Weet v. Brockport, 16 iV. F., 161, is recognized as •uA**?^ the one in which the whole law has been finally settled, and it is upon *\^ k jv the grounds there laid down, that the liability is now fixed in New York. ^\>-o-»**. fidelity all the duties imposed by the charter ; —and that the liability Is ^_^_^^J5^^ the same as that which attaches against individuals who have franchises in ferries, toll-bridges, and the like. The principle, as he states it, is : — ''That whenever an individual, or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such indi- vidual or corporation is liable, in case of neglect to perform such cove- nant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance." lu order to get at the true ground of liability, the opinion goes on to x6i«JL^ - CITY OF DETROIT V. BLACKEBY. 605 determine, jf?rs^ whether t ownships an d other public bodies, not being ^ ^ jp- incorporated cities or villages, are liable, and shows conclusively that thev are not. And the Court arrive at this conclusion, not on the basis of an absence of dut}- or an absence of means, but because their duties are duties to the public, and not to individuals. To show this, full :;itations are made from the English cases, which were cited before us, -»nd also from the American cases. •••••• oil^O^ It is admitted everywhere, except in a single case in Maryland, that *^ ^ jhere is no common-law liability against ordinary municipal corpora- flss^*'~* iions such as towns and counties, and that they cannot be sued except y»-©-«*v. by statute. It has also been uniformU' held in New York, as well as elsewhere, that public officers, whose offices are created b}' act of the Legislature, are in no sense municipal agents, and that their neglect is not to be regarded as the neglect of the municipalitv. and their misconduct is not charge- able against it unless it is authorized or ratified expressly or by implica- tion. Tills doctrine has been applied to cities as well as to all other corporations. • •••• ••• And the numerous cases which exonerate cities from liability for not enforcing their police laws, so as to prevent damage, rest upon a very similar basis. • ••• •••• In the case of Eastman v. Meredith. 36 N'. H., 284, the distinction between the English and American municipal corporations is clearly defined. The former often hold special property and franchises of a profitable nature, which tliey have received upon conditions, and which they can hold by the same indefeasible right with individuals. But American municipalities hold their functions merely as governing agencies. They may own private property, and transact business not strictly municipal, if allowed by law to do so, just as private parties mav, and with the same liabilit}-. But their public functions are all held at sufferance, and their duties may be multii)lied and enforced at the pleasure of the Legislature. They have no choice in the matter. They have no privileges which cannot be taken away, and they derive no profit from their care of the public ways, and the execution of their public functions. They dififer from towns only in the extent of their powers and duties bestowed for public purposes, and their improvements are made by taxation, just as they are made on a smaller scale in towns and counties. fiAi^ ^OJ . . . Because streets are not private, and because, iu this State, at| ^^^^ ^ least, no municipality can exercise any powers except by State per-j "^ ^^ mission, and every municipal charter is lialile to be amended at pleasure, The charter of Detroit has undergone the most radical changes. It is impossible to sustain the proposition that these charters rest in contract. And it is impossible, — as Judge Selden demonstrates, to find 606 CITY OF DETROIT V. BLACKEBY. legal warrant for any other ground for distinguishing the liability of one municipal body from that of another. There is no basis in authority for any such distinction concerning the consideration on which their powers are granted, and it rests upon simple assertion. • ••••••• /»-«^^^ It is impossible to harmonize the decision [of the New York Court] o ^ > im'- 4^^ \f\t\\ the previous decisions exempting corporations from responsibility fj^^'^r^-^^ - because public officers were not their agents. It is no easier to sustain X * it in the face of the uniform decisions den3'ing liabilit}' for failure to enforce their police regulations. The authorities which malie corpora- tions liable on the ground of conditions attached to their franchises, go very far towards compelling them to respond as absolutely- bound to prevent mischief And the general reasoning on which the most of the opinion rests, and the criticisms made upon former decisions, — which, it is asserted, went altogether too far in creating liability, — all are designed to show, and do show, very forcibly that simply as municipal corporations, — apart from any contract theor}', — no public bodies can be made responsible for official neglect involving no active misfeasance. There is no such distinction recognized in the law elsewhere. In City of Promdejxce v. Clapp^ 17 Hoio. li., 161, the United States Supreme Court, through Judge Nelson, held that cities and towns were alike in their responsibility and in their immunity. In County Com- missioners of An7ie Arundel v. Duckett^ 20 3/c/., 468, a county was held responsible to the fullest extent. In New Jersey, in Freeholders of Sussex V. Strader, 3 Harr. (18 iVi e/i), 108 ; Cooley v. Freeholders of Essex, 27 iVi «/[, 415 ; Liver more v. Freeholders of Camdeti, 29 JV. J., 245, and 2 Vroom i^\ N. J.), 507 ; and Pray v. Mayor of Jersey City, 32 iV. «71, 394, the cases were all rested on the same principles, and cities were exonerated because towns and counties were. The sugges- tion of Judge Selden has been caught at by some courts since the deci- sion, and has been carried to its legitimate results, as in Jones v. Hew Haven, 34 Conn., 1, where the damage was caused by a falling limb of a tree. But, so far as we have seen, even the cases which are decided on this ground, do not hold that towns do not receive their powers upon a consideration as well as cities. That question still remains to be handled in those courts. It is utterly impossible to draw a.x\y rati onal distinction on any snch ground. It is competent for the Legislature to give towns and counties p owers as large as those g ranf^^pd frrTTirrpa Each receives what is sup- posed to be necessary or convenient, and each receives this because the good government of the people is supposed to require it. It would be contrar}' to ever}' principle of fairness to give special privileges to any part of the people and deny them to others ; and such is not the pur- pose of cit}' charters. In England the burgesses of boroughs and cities had very important and valuable privileges of an exclusive nature, and not common to all the people of the realm. The charters were grants of privilege and not mere government agencies. Their free customs CITY OF DETEOIT V. BLACKEBV. 607 and liberties were put bj- the great charter under the same immunity with private freeholds. But in this State, and in this country generally, ihey are not placed beyond legislative control. The Dartmouth College case, wjiich first established charters as contracts, distinguished between public and private corporations, and there is no respectable authority to be found anywhere, which holds that either offices or municipal charters generally involve any rights of proi)erty whatever. The}' are all created for public uses and subject to public control. Vie think that itj\ill require legislative action to crrnte any liability to private suit for non-repair of public ways. Whether such responsi- bility should be created, and to what extent and under what circum- stances it should be enforced, are legislative questions of importance and some nicety. The}' cannot be solved by courts. Judgment should be reversed with costs. '^L.^>&'~^ v . Chkistiancy and Graves, JJ. concurred. CooLEY, J. dissenting. C«j-ofea-i,(.V It is unquestionably, I think, a rule of sound public policy , that a o>*j5j«>^-> O municipal corporation which is vested with full control of the public i^^^Li-^'^ streets within its limits, and chargeable with the duty of keeping them in ^^E^C.!: repair, and which also possesses b\' law the means of repair, should be » held liable to an individual who has suffered injury b}' a failure to per- form this duty. If we sat here as legislators to determine what the law ought to be, I think we should have no difficulty in coming to this conclusion. But we sit here in a judicial capacity, and the question presented is, what is the law, and not what ought the law to be. This question is to be determined upon common-law principles, and the most satisfactory evidence of what those principles are is to be found in the decisions of the courts. The decisions which are in point are numerous ; the}' have been made g - ruirp^^ in many different jurisdictions, and by many able jurists, — and there ofZS^ -W has been a general concurrence in declaring the law to be in fact what ftjL«^L^«^ we have already said in point of sound policy it ought to be. "NVe are JV l6Ct, unltititj exurtisijlv vm\^ So by statute. Upo'n these two points the authorities are general!}' agreed, and the result is well stated in the opinion of the Chief Justice. The questio n for us to decide is, w hether a different rule applies where a municipal corporation exists under a special charter which con- fers peculiar powers and privile ges, and imposes special duties, from that which prevails in the case of towns and counties. The authorities have found reason for a oisimcuon, and 1 am not yet prepared to say that their reason is baseless. The leading case on the subject is Henley v. The Mayor and Bur- gesses of Lyme Begis, whicli went from the Common Pleas through the King's Bench to tlie House of Lords, and is reported in 5 Bing.^ 91 ; 3 Barn, and Ad., 11, and 1 Bwg. JV. C, 222. In that case it appeared that the King, b}' letters patent, had granted to the Mayor and Bur. gesses of Lyme Regis the borough or town of that name, and also the pier, quay, or cob, with all liberties, profits, etc., belonging to the same, and remitted_ a par t of their anciej it rent , expres sing hi s will therein, t hat the said May or a nd Burgesse s__and their successors, all and singular, the buildings, banks, sea-shores, etc., within the said borough, or thereunto belonging, or situate between the same and the sea, and also the said pier, etc., at their own costs and charges, should r e[)aiiL . niaintaiiL and supi)ort. All the courts held that the defendants, having accepted the charter, became legally bound to repair the buildings, banks, etc., and that as this obligation was one which concerned the public, an action on the case would lie against them for a direct and particular damage sustained by an individual in consequence of a neglect to perform it. The reasoning was, that the things granted b}' the charter were the consideration for the repairs to be made ; and that the corporation, by accepting the letters patent, bound themselves to do these repairs. This decision is the unquestioned law of England to the present time, and is referred to with approbation in the American cases. I do not understand this decision or the previous and analogous one o^ Mayor of Lynn v. Tttrner, Covp., 86, to be questioned in the present case ; but it is contended that neither is applicable, because the grant was one for the benefit of the corporators, which they might accept or refuse at their option, but which, if accepted, must be taken cum onere., and the acceptance was in the nature of a covenant to perform the dut}' imposed. Moreover, that duty, it is said, was individual, not governmental ; and the responsibility for failure to perform it would not depend on negligence, notice, or any other contingency not expressed m the covenant ; and in an}' point of view it is argued that these deci- CITY OF DETROIT V. LLACKEBY. 609 sions have no iriore bearing upon the question of public duties and public responsibilities, than if the grants to the corporations in these cases had been made to individual residents. This is not the first time that this view of the cases referred to has been presented to the courts. It was very fully examined b}- Mr. Justice Selden in Weet v. Brocl-port^ IG N. jT., 161, note^ and in his opinion there was nothing in it which should exempt municipal corpora- tions from the principle declared, even when the neglect of duty relates to a governmental power. "It is well known," he very truly says, that " charters are never imposed "p " i mnnifip aLbodics except at thejr urgent request. While the}' may be governmental measures in theorj-, they areTTn fact, regarded as privileges of great value, and the fran- chises the}" confer are usually- sought for with much earnestness before they are granted. The surrender by the Government to the munici- pality of a portion of the sovereign power, if accepted by the latter, may with propriety be considered as affording ample consideration for an implied undertaking on the part of the corporation, to perform with fidelity the duties which the charter imposes." Ibid.^ 171. Now it does not appear to me to be a sufficient answer to this posi- tion, that the State inight^ if it saw fit, impose a municipal charter upon the people without their consent and even against tlieir remon- strance. That is not the ordinary course of events, and the question for us to consider is — What is the legal significance of things as thej* actually occur? We find, as matter of fact, that people apply for a charter conferring such privileges as they deem important, in view of their actual circumstances, and that many of these privileges are quite superior to, and more valuable than, those possessed b}' the people generalh'. When the Legislature grants these privileges it imposes concurrent duties. What is the fair construction of these acts of the people and the Legislature respectively, — the people in soliciting the privileges, and the Legislature in attaching the duties to the grant which it makes? T his is tiie questi on whi ch we are to conside r. The New York courts have invariably held that when the people of the municipality accepted the charter which the}- had thus solicited^ Q©ntraci_was jjupHprl on their par t t o perform th e co rporate duties. Tliey have always denied that in this respect there was any difference between a municipal corporation and a private corporation or private individual, who had received from the sovereignty a valuable grant, charged with conditions. — Hutsonv. N. 3^, 9 iV". F., 163; Weet v. BrorhporU 16 N. Y., ?iote,\CA ; Conrad v. Ithaca, \Q> N. Y!, 158 ; Storrs V. Utica, 17 iV: r:, 104 ; Ml/Is v. Brooklyn, 32 N'. T., 489 ; Lee v. Sandy Hill., 40 N. y., 442. The same decision has frequently been made in other States. Meares v. Wilmington, 9 Ired., 73 ; Pittsburgh v. Grier, 22 Pemi. St., 63; Erie v. Schicingle, Ibid., 388; Ross v. 3Iadi- son. 1 Ind., 281 ; Stackhovse v. LaFayette, 26 Ind.. 17; Smoot r. WetumpJca, 24 Ala., 112; Browning v. Springfield, 17 III., 143, in which the question is very fully and carefully considered by Mr. Chief <^^v-vj-5-J 610 CITY OF DETROIT V. BLACKEBY. Justice Scales. Commissioners v. Ducl^ett^ 20 Md.^ 468; Savnjer v. Corse, 17 Grat., 241 ; Richmond v. Long^ Ibid., 375 ; Bigelow v. Ran- dolph, 14 Gray., 541, which, though not an express authorit}-, recognizes the doctrine : Jones v. New Haven^ 32 Conn., 1 ; Cook v. Milu-aukee, recently decided b}' the Supreme Court of Wisconsin, and to be found in 9 Law Reg. R. S. 263 [24 Wis., 270]. The same question has also been frequently and full}' examined by the Supreme Court of the United States, and no doctrine is more firmly settled in that Court than tliat municipal corporations are liable for negligence in cases like the present. It will be sufficient, perhaps, to refer to the case of Weightman v. Washington, 1 Black, 39, in which the English and American cases were examined, but the same question has frequenth' been brought to the attention of the Court since, and uniformly with the same result. And it is remarkable that in all the cases which have upheld this doctrine tliere has scarcely been a whisper of judicial dissent. It would be difficult to mention another so important question, which has been so often, so carefully, and so dispassionately examined, and with such uniform result. In no State is the doctrine of Henley v. Mayor, etc.^ of Lyme Regis, as applied in Weet v. Brockport, denied except in New Jersey, and in that State the authorities I have referred to seem to have been passed over in silence and perhaps were not observed. We are asked, therefore, to overrule a rule of law which is safe, use- ful and politic in its operation, and which has been generally accepted throughout the Union, not through inadvertence or by surprise, but after careful, patient and repeated examination upon principle, hy many able jurists, who have successively- given due consideration to the fallacies supposed to underlie it. For n^y own part I must say that the fallacies are not clearl}- apparent to my mind, and I therefore prefer to stand with the authorities. And I deem it proper to add also, that, inasmuch as the rule of responsibilit}- in question seems to me a jus? and proper one, I should be inclined, if my judgment of its logical soundness were otherwise, to defer to the previous decisions, and leave the Legislature to alter the rule if they should see fit.-^ r. 1 [As to civil liability for damages from defective streets.] v> " The cases may be grouped into the following classes : — " First. Where neither chartered cities nor counties or other rjnnsi corporations are held to an implied civil liability. Only a few States have adopted this extreme view of exempting cities from liability in this respect. " Second. Where the reverse Is held, and both chartered cities and counties are alike considered to be impliedly liable for their neglect of the duty in question. This doctrine prevails in a small number of States. " Third. Where municipal corporations proper, such as chartered cities, are held 'jo an implied civil liability for damages caused to travellers of a defective and unsafe streets under their control, but denying that such a liability attaches to counties or other quasi corporations as respects highways and bridges under their charge. This distinction has received judicial sanction in a large majority of the States, where the legislation is silent in respect of corporate liability." 2 Dillon, Mun. Corp., 4th ed., & 999. — Ed. ^^^ o'donnell v. syeacuse. M* 611 ^0^ BARTON V. CITY OF SYRACUSE. 18G7. 36 New York, 54. BocKEs, J. This is an action on the case for negligence, in which the defendant is charged with culpabilit}' in omitting to l^eep a sewer in proper repair, and in suffering it to become filled with dirt and rubbish, b}' reason of which the flow of the water was impeded, causing it to set back through the plaintitf s drain into his cellar, to the injury of his propert3\ The referee, to whom the case was referred to hear and determine, directed judgment for the plaintiff, which judgment was affirmed at General Term. Bv the cit}- charter, the mayor and common eonnoil werp authorized and direc tea to construct sewers through the city, and to keep them in Tepair. They accepted and entered upon the performance of this dut}', and co nstructed sewers along such of the streets a s were deemed appropriate, with a yiew to favorable and healthful drainage. The expenses were assessed upon the property benefited, as provided by the charter, and their superyision and control were properly assumed by the city goyernraent. Under this condition of authority and dut}', the municipal corporation were bound, through the proper officers, to a faithful and prudent exercise of power, and carelessness and neg- ligence in that regard created a liability, which might be enforced b\' any one suffering damages therefrom. So the law is firmly established, that in constructing sewers, a nd in keeping them in repair, a municipaj. corporation acts rainisteriall}-, and, haying the authorit}' to do the act, fs boiTnd lo tllB e!jg^r(3lS{i oi neeniul prudence, watchfulness ana care The authorities in support of these principles are too numerous and famiUar to require particular comment. [Remainder of opinion omitted.] c?l_ r*« iw «^t> "_^ g, j/ sa<>A^^ Judgment aMrmed :] ^L^^ O'DOXNELL V. SYRACUSE. 1906. 184 N. Y. 1. Gray, J.^ The theory of the defendant's responsibility, maintained by the learned referee in an opinion, was that, by practically taking pos- session of Onondaga creek for its municipal purpose, it had " converted a natural watercourse into a public sewer" and its duty was "the same as if the sewer was originally artificial." Hence, it was " bound 1 Arguments omitted. — Ed. ^ iOs:^ I (T^J^i3* ^"-o--^ '^'^^-^ C*»-.Jt 0,-^v-*^ 0-^s-w-. ^T^M ^v^T*— s^'tiN r^fe'. %^ ^ S » m V AO CJliCi. tt 612 O'DONNELL v. SYRACUSE. to maintain it in a reasonably safe and efficient condition," and having failed to perform this duty, the failure was an efficient cause of the in- jury to the plaintiff's property. At the Appellate Division, this theory of liability was concurred in. It was thought that, from the use made of the creek, " the city was called apon to exercise, affirmatively, its governmental functions to reduce to a minimum the damages likely to result from the use" and that " the affirmative obligation, inseparably linked with this user, throws upon it the burden of paying whatever damages resulted from the overflowage, although the unusual flood was the inducing cause and responsible for the greater proportion of the damages." I am unable to agree with the courts below in this view of the city's responsibility towards its inhabitants. I might suggest that, as it was found that the city's act s but contributed ^'to some extent " Io"the overflow of the creek , it was error to hold it liable for a damage to the plaintiff, to which the acts of others, not acting in concert with ■^--xl to tne piaintiii, to wnicu tue acts oi oiners, not a ctmg in concert witti . ,~Lv^^^ ^"^> ^^^ contributed._ The channel of the creek had been obstructed by J^ IKeWji t-'ie throwing in of ashes, ciuders, dirt and rubbish from its banks and by the formation of bars of sand and gravel ; so that others than the ^^!3^3^^ city were, measurably, responsible for interfering with the channel of ,,AA»AAr-'»^ the stream. The municipality was chargeable only with that much o^ *^ *"''*^ the damage which was caused by its wrongful acts ; and if the damage was incapable of separation and the proportions of liability could not be established, that fact affords no reason for holding the city respon- sible for the tortious acts of others. The rule is discussed in Chipman v. Palmer, (77 N. Y. 51), in the light of both the American and the ^^jt^^^^^i English cases and is summarized in the statement that " where different 5- vL*j^oL>sl P^i'ties are engaged in polluting, or obstructing, a stream, at different 5j,V7~T 'l times and different places, the whole damages occasioned by such wrong- .*,_oJ^ I waters between the banks and, hence, none to indemnify its citizens jn^^-*^ 'against the consequences of freshets, or floods. But the argument is that the city, by its user of Onondaga creek, under its charter and or- dinances, and under certain statutes, came under a responsibility for its safe condition. That is to say, that it had assumed a dominion over O'DONNELL v. SYRACUSE. 613 the stream by converting it to its use for sewer purposes and was, therefore, under an " athnnative obligation, inseparably linked with the user," of paying the damages resulting from an overflow. This is a broad proposition and, as I think, an unwarrantable extension of the rule of municipal liability. In order that a municipality shall be made liable for causing an injury, it must appear that some duty, incumbent upon it to perform, had been neglected, or had been improperly dis- charged. The act, the omission, or commission, of which is charged as the cause of the injury, must have been within the scope of the cor- porate powers, as provided by the charter, or by some positive enact- ment of law. A municipal corporation i s the delegate of sovereign power to legislate as to the public needs of a locality. It may be said, in a sense, to possess a dual character . It acts in a govern men iaT capacity, to the extent that it exercises its powers in matters of public concern, and i t acts in a private capacity, in so far as it exercises it s powers , under its by-laws, for private advantage, in matters pertaining to the mu nicipality, as the proprietor of the variona works and pyoppr- ties. Lloyd v. Mayor, etc., of N. F^., 5 N. Y. 369. It exercises the governmental powers delegated by the state over the particular politi- cal subdivision thereof and it cannot be held liable for the non-exercise of, or for the manner in which it exercises, those discretionary powers, which are classed as of a public, or legislative, character. But where the duty is a corporate one, having relation to its special interests, and it is absolute and perfect, and not discretionary in its nature, in the performance of which the plaintiff has an interest, his action will lie against the municipality for the damages occasioned by a failure to perform. In other words, if the duty be judicial in its nature, as call- ing for the exercise of judgment, no liability rests upon the municipality for non-performance ; whereas, if it be of a ministerial nature, neglect to perform it will render the municipality responsible to one injured thereby. See Dillon on Municipal Corporations, §§ 753, 778; Griffin V. Mayor, etc., of N. Y., 9 N. Y. 456 ; Lloyd v. Mayor, etc., of N. Y., supra. It is a principle of municipal responsibility, early accepted I from the common law, in this state, that in the acceptance of a charter! sufficient consideration is found in the grant of powers and franchises! to support an implied undertaking to perform what duties are imposed,! which will enure to the benefit of every individual interested in their performance. Weet v. Trustees of Village of Brockport, 16 N. Y. 161, note ; Cain v. City of Syracuse, 95 ib. 83. But, in the application of the principle, the distinction is to be borne constantly in mind that a corporate duty is not always absolute. For instance, if it relate to legislation in the public interest, or to the undertaking of some work of a public nature, which it has not been commanded to do by the state, however comprehensive of the matter the powers conferred by charter, or by positive legislative enactments, may be, the duty is, necessarily, discretionary, because within the exercise of a deliberate judgment. Nor does it follow that, although there may be an admitted corporate 614 O'DONNELL v. SYRACUSE. control of the subject, an absolute and imperative duty arises. Cain V. City of Syracuse, supra. -.o-iL »■**->- I think we may, at once, dismiss from our minds any consideration j»A ^ yJbXJt-of the argument that, because Onondaga creek had been declared a ^_,,,j_^^V-| public highway by statute, a peculiar duty had devolved upon the city ;;JG» vV* in consequence, pertinent to this case. The ordinary rule of municipal ^~ x»A^ obligation, with respect to the care and maintenance of highways, ^k (i under the statute, does not apply and no duty, ordinarily, rests upon * ti>^f-,StjAj| the municipality, through whose boundaries a river or stream passes, in v^ whole or in part, to keep it in a safe condition, or free from obstruc- tions not of its own causing. Seaman v. Mayor, etc., of N. Y"., 80 N. Y. 239 ; Coonley v. City of Albany, 132 ib. 145. In the discussion of this case, I accept its facts, as they are estab- lished by the findings of the trial court ; and I find the theory of the plaintiff's recovery to be contained, substantially, in this proposition : that a peculiar responsibility rested upon the city of Syracuse, by rea- son of an assumption of corporate dominion over the creek, in using it as a part of its sewerage system, under provisions of its charter and of special legislative enactments ; and that the neglect to exercise, or the imperfect exercise of, the power effectively to protect the inhabitants against an overflow of the stream made the city liable in damages to any one injured thereby. The liability of the city was predicated upon the notion of its negligence in the performance of municipal duties in- cumbent upon it, with respect to the maintenance of the channel of the .<^^,„«^V-^ creek. No negligence is found, nor appears, so far as mere construc- ,,wi,v^j-*>5i^ fftion of sewers, or of bridges, is concerned. It was the effect of the -%. ^*"-**' Kormer, as increasing the flow of the stream, that is made to support »*— *-^;^-^2~jhe charge of negligence in not providing for the adequate carriage of *V^|^^ |j^g waters from freshets and floods. As to the bridges, their construc- sv^il3*^^^**\ ^^^"^ ^^^ authorized, and it was an unquestionable duty of the munici- pality, whose territory the stream separated, to construct them as connections and portions of the streets, or highways. No liability was thereby cast upon the city for any consequential damages, which ma}' be claimed to have been occasioned through their having impeded the flow of the stream. Radcliff's Exrs. v. Mayor, etc., of Brooklyn, 4 N. Y. 195 ; Atwater v. Trustees of Village of Canandaiffua, 124 ib. 602. I consider that we must find support for this judgment, solely, in some duty cast by the statute upon the municipality and negligently performed, or omitted. I find no evidence of a corporate dominion or control assumed, other than in the use made of the creek, as an outlet for its system of sewers ; and it is necessary briefly to notice, in the light of the legal principles to which I have above called attention, the powers conferred upon the corporate authorities in the charter legisla- tion, or in the special acts, to which our attention has been directed. The city of Syracuse was incorporated in 1847. Onondaga creek, ris- ing in the highlands to the south of the city, flows through it to the north ; draining the extensive watershed of the country beyond the city O'DONNELL v. SYRACUSE. 615 and furnishing a natural drainage for municipal needs. The original charter provisions gave authority to the common council to make high- ways, bridges, sewers, etc., and imposed duties with respect to tbeir proper maintenance and repair. In 1854, (Chap. 28 of the laws), the legislature, revising the charter, gave power to the common council to pass ordinances and to make regulations, providing, among other things, for the construction and the repair of sewers; for the regulation, straightening and improvement of the channel of Onondaga creek and! *^^?^ ^ for the draining of the lands adjacent thereto ; for the prevention of I ^ ^ £_ Bj'ooklyn , (32 N. Y. 495), the complaint was for the insufficienc y of the sewer to carry off the water from the streets ; in consequence of which the plaiutiffs' premises were flooded and their building was injured. In deciding ad- ^ ,j^ rV-Z^ versely to the claim of the plaintiffs for damages, it was held that . - - " the duty of draining the streets and avenues of a city, or villa ge, is o ne requiring the exercise of deliberation, judgment and fliscretion'_ It cannot, in the nature of things, be so executed that in every single moment every square foot of the surface shall be perfectly protected against the consequences of water falling from the clouds upon it. The duty is . . . of a judicial nature; for it requires the qualities of deliberation and judgment. It admits of a choice of means and of ^*^*''~*^ the determination of the order of time in which improvements shall be made." Again, it was said, "It maj', therefore, be laid down as a very clear proposition, that if no sewer had been constructed at the locality referred to, an action would not lie against the corporation, though the jury should find that one was necessary." In Seifert v. City of Brooklyn, (101 N. Y. 136), the plaintiff recovered the damages, which had been occasioned by inundations of the district of his resi- dence, through a defective construction of the sewers. In the opinion, the cases were reviewed and the principle of the immunity of municipal cgrporations from liability for damages occasioned, either by an insuffi- ciency of the plan of an improvement, or by the neglect to exerci&e the power to make desired improvements, was asserted. In that case, t he liability of the defendant was uphe ld, upon the ground that its acts had resulted in the creation of a nuisanc e. It was observed that " while the corporation was under no original obligation to the plaintiff, or other citizens, to build a sewer at the time and in the manner it did, yet, having exercised the power to do so and thereby created a nui- sance on his premises, it incurred a duty, having created the necessity O'DONNELL v. SYRACUSE. 617 of its exercise, and having the power to perform it, of adopting and executing such measures as should abate the nuisance and obviate the damage." In Byrnes v. City of Cohoes, (67 N. Y. 204), the phiintiff's property had been damaged by a flood of water, collected from the streets, which, but for the curbing and guttering, would have passed away in a natural watercourse. It was held that " the cases . . . to the effect that a municipal corporaticfi is not liable for an omission to supply drainage, or sewerage, do not apply to a case where the necessity for the drainage, or outlet, is caused by the act of the cor- poration itself." It seems to me to be very clear, therefore, that the omission of the municipal authorities of the city of Syracuse to make provision f or ob- viating the danger of an overflow of the creek was not t he neglect of an absolute duty, whic h made the c orporation liable tor the damages o f which the plain tiff r!nmp1a.ir|p;- Assumnig that there was a auty", which could have been effectively performed, and assuming that the municipality had the control, neither reason, nor authority, supports the contention that the failure to exercise the governmental power of acting upon a matter, not relating to some special interest, nor to some undertaking assumed, nor commanded by anj' legislative enactment, imposed a responsibility upon the corporation for what might happen injuriously to the citizens through the occurrence of an extraordinary flood. In Cain v. Syracuse, (sujjva), it was said, with respect to the failure of the common council to exercise the power to direct the tear- ing down of a wall, which had been made dangerous by a fire and from the fall of which the plaintiff's intestate had been killed, that, assuming the power existed, " did a duty result so absolute, certain and impei- ative, as to found a right of action upon the omission? AYe must con- sider the nature and scope of the duty and, in so doing, must not be misled by the test, which makes permissive words absolute and a com- mand. That test . . . will not serve to make a duty, which is inevi- tably and inherently discretionary, nevertheless ministerial, because the public have an interest in its exercise, or the rights of individuals may be affected by it." In this case, the power mav be conceded tq have existed in the c ommon counc il to have ordered works, or to have put into execution plans, for aveildng the possible recurrence of fresh- ets and floods ; but it did not act, whether from inability to devise any satisfactory plan, or for any other rpaa ^^n^ ia iTnmQ i-prinl • aprl its non- aucti on, like that of the state legislative bodv. could create no cause of action. The plaintiff and the other citizens affected by the flood were no worse off than they would have been if the creek had not been used at all for sewerage purposes, except for the incidental deposit of sew- age matter. The drainage of sewers into the channel, however, did not cause the flood, although naturally contributing to the volume of the stream. The flood was an extraordinary and an unusual one, re- sulting from the natural causes of the action of the elements and of the lay of the land. 618 WHEELER V. CITY OF CINCINNATI. I have given my reasons, at some length, in view of the importance of the case, not only in its possible bearing upon other damage cases, but in the application of the principle of municipal liability in snch cases, and I advise that the judgment appealed from should be reversed and that a new trial should be ordered ; the costs to abide the event. CuLLEN, Ch. J., 0'Brip:n, Haight and Vann, J J., concur; Edward T. Bartlett and Werner, JJ., dissent. Judgment reversed, etc. -^«,«'v-'^' WHEELER y. CITY OF CINCINNATI. J^ .V'^'^^'^^'^X J», 1869. 19 Ohio Slate, 19.i ^^'^X^^^^O^^'^^Jt^J^Ti The plaintiff brought his action in the court of common pleas of ^^ Hamilton county, seeking to recover from the defendant the damages -f^ arising from the casual destruction of his house (situated within the ^^ \ (situated limits of said city) by fire ; on the ground tljat the defendant had fai led and ne j^lected t o provide the necessa ry cis terns and suitable engines for extinguishin^fires, in tliat quarter of city in wiiich his said house was situated, ancPahat ce rtain offi cer s and ag ents of the fire depart ment of _ s aid c ity had neglected and failed to p erform their du ties in regard to the extinguishing of said fire, by reason whereof said fire was not extinguished, as it otherwise might, and could have been. A demurrer to his petition, alleging these facts, was sustained by the court, and judgment rendered for tlie defendant, whieh was subsequentj}' affirmed by the district court, upon proceedings iu error. The plaintiff now seeks a review and reversal of those judgments, on the ground of error in sustaining tlie demurrer to his petition. e/i T. Cra2)sey and Collins & Herron^ for the motion. J. Bryant Walker ( Walker S Conner), coritra. By the Court. The laws of this State have conferred upon its municipal corporations power to establish and organize fire companies, procure engines and other instruments necessarv to extinguish fire, and preserve the buildings and property within their limits from conflagra- tion ; and to prescribe such h3'-laws and regulations for tlie government of said companies as may be deemed expedient. But the powers thus conferred are in their nature legislative and governmental ; the extent and manner of their exercise, within the sphere prescribed by statute, are necessaril}' to be determined by the judgment and discretion of the proper municipal authorities, and for anj' defect in the execution of such powers, the corporation cannot be held liable to individuals. Nor is it liable for a neglect of duty on the part of fire companies, oi 1 Arguments omitted. — Ed. '^^ ^^^^'^^^^:X^^:^:i^^t:^I^^^^. HAYES V. CITY OF OSIIKOSH. 619 their officers, charged with the dut}' of extinguishing fires. The pow ei of the ci ty over the subje ct is that of a deleg atea quasf sovereignt}', jwhich exchides responsib i lity to individuals for tne neglect 01' iiarr- feasance o f an officer or agent charged with the performance of du- ties. T iie case differs from tliat where the corporation is charged tA^ law with tlie performance of a dut}' purely ministerial in its character. We know of no case in which an action like the present has been lieW to be maintainable. Brinkmerjer v. Evansville, 29 Ind. R. 187 ; West- em College of Medicine v. City of Cleveland^ 12 Ohio St. R. 375. Leave to file petition in error refused. e^>^'«-*'**^ _ HAYES V. CITY OF OSHKOSH. 1873. 33 Wisconsin, 314.1 Action against the city to recover the value of propert}' destro3'ed by a tire which was caused by ne>«.. and was under the control of engineers employed and paid by the cit}-. The city charter provided, in substance, that the common council should procure fire engines, and have charge and control of the same ; also that the council should appoint competent officers and firemen, define _^^ their duties, fix their salaries, and remove them_at pleasure. "^IT-^ Verdict directed for defendant. Plaintiff appealed. '"'"jL^.^^C. Coolbaugh & /Son, for appellant. ^'^^^ TT. H. Kennedy^ (^Gabe BoucJc with him,) for the cit}'. \ Dixon, C. J. The question presented in this case is settled bv an* ■»^'^ thorit}' as full}- and conclusively as anj* of a judicial nature can ever be said to have been. The precise question ma}' not have been hereto- fore decided by this court, but a very similar one has, and the govern- ing principle recognized and affirmed. Kelley v. 3Iilwaukee, 18 Wis. 83. Neither the charter of the city of Oshkosh, nor the general stat- utes of this state, contain any peculiar provision imposing liability in cases of this kind ; and the decisions elsewhere are numerous and uni- form, that no such liability exists on the part of the city. The case made by the plaintiff is in no material respect distinguishable from those adjudicated in Hajford v. New Bedford, 16 Gray, 297, and Fisher V. Boston, 104 Mass. 87, as well as in several other reported decisions cited in the briefs of counsel, and in all of which it was held that the actions could not be maintained. The grounds of exemption from liability, as stated in the authorities last named, are, that the corporation is engaged in the performance of g , pnhlin <;pr\'ir-P, in wliir-h it li^g nr> pni-tif»n1nv I'nt . pvo g t nnf7 from wllicl] 1 Statemeut abridged. Arguments omitted. — Ed. '.^ 620 WILD V. PATEKSON. It derives no special benefit or advantage in its corporate capacity , but which it is l)ound to see performed in [tursuanee of a duty imposed b}' law for the general welfare of tlie inhabitants, or of the eommunit}' { ^yjjc that the members of tlie fire di'[)artment, although appointed hy the ji^jj^ city corporation, are not, when acting in the discharge of their duties, servants or agents in the employment of tlie city, for whose conduct the city can be held liable ; but they act rath e r as p ublic officer s, or officers of the citj- charged with a public service, for whose negligence or misconduct in the discharge of official dut}' no action will lie against the city, unless expressl}' given ; and hence the maxim respondeat s up erior has no appl ic ation. " The reasons thus given are satisfactory' to our minds, and lead to a conclusion which on the whole seems to us to be just and proper. A Individual hardship or loss must sometimes be endured in order that 1 still greater hardship or loss to tlie public at large or the community Imay be averted. It would seem to be a hard rule which would hold__ the cit\' responsible in damages in such cases, when the work in which it, or rather its public officers are engaged, is one of mere good will, a charity, so to speak, designed for the relief of suffering members of the communit}', or it may be of the entire people of the district. If the legislature sees fit to enact such liability, so let it be ; but, in the ab- sence of such enactment, we must hold the liability does not exist. By the Court. — Judgment affirmed. T >v^ WILD V. PATERSON. 1885. 47 New Jersey Law, 406.^ On demurrer to declaration. ""^^i^t:^^ — MA The action is in case. The declaration avers that the city of Pater- 0. C^ son, under the authority and direction of its charter, maintained a fire department, of which plaintiff was a member, attached to a certain company-, wliich used a steam fire engine ; that it was the duty of the ^ city to provide for that engine a brake and to keep it in good order and repair ; that by reason of failure on the part of the cit}' to perform this Ip^vm duty, plaintiff, while assisting to haul the engine to a fire was run over and seriously injured. For the injury thus received plaintiff seeks to recover damages. A demurrer to this declaration was interposed. Henry S Dickmson, and Herbert Stout, for plaintiff. F. Scott, and John W. Grir/gs, for defendants. Magie, J. It has been settled beyond the possibility of further con- tention in this state, that municipal corporations are not liable to action 1 Arguments omitted. — Ed. WILD V. TATERSON. 621 for neglect to perform or negligence in performing duties imposed on tliem by law and due to the public, in behalf of any individual suffering damage by reason of such negligence, unless an action is given b}' statute. AVhere the en)ployees or officers of a municipal corporation are negligent in tlie i)erformance of such duties, the doctrine of re- spondeat sujyerior will not apply. Livermore v. Board, cfec, 2 Vroom 508 ; Pray v. Jersey City, 3 Vrooni 394 ; Cooley v. Freeholders, dtc, 3 Dutcher 415; Freeholders, c^c, v. Strader, 3 Ilarr. 108; Coiidict V. Jersey City, 17 Vroom 157. The duty of the city of Paterson to maintain__a jfire department i_3 maiiifestly a duty owedto the public andimposed b\' law. Any one TnjuTecTTiiriiegTigence in the performance of that duty, will be debarred from action for such injuiy 1)3- the well-settled rule above stated. Plaintiff's contention is that his case is exceptional, and not within the rule, upon the ground that the duty of keeping the machiner}- used for extinguishing fires in good order, is, as respects those who are employed in its use, a private duty, owed, not to the public, but to the empIo3-ee. But the distinction thus sought to be made is, in mv judgment, merel}' specious. It does not appear what was the precise relation between plaintiff, as a member of the fire department, and the cit}'. Whetlier his services were voluntarily rendered or were paid for, is not disclosed. But in either case the relation is not the ordinary relation of master and ser- vant. Employees of such corporations in the execution of its pul)lic duties have been held tdbe" rfTereThstruments in the performance of such duties, and to act as i>ul)lic officers charged with a public service- Condict v. Jersey City, supra. The duty t o provide and maintain apparatus for extinguishing fireaj f^! w AtA^ is plainl}' included within the public duty of establishing a fire depart- B ■>y>-*-*^**-^ ment for that purpose. The city, as a corporation, derives from it no I \lj^ \j>>r> special benefit or advantage. The duty is single and undivided, and! lpiok.^ V->J^VV »U'^JU^-''■*'-3i}^_^ -4o^ Oj^,,^^ SPRINGFIELD FIRE &c. INSURANCE CO. v. VILLAGE OF '^^ KEESEVILLE. ^^vj-xJti/.^- w>,Jk., '*''t?*^ 1895. 148 New York, 46.1 '^''''■«>->.=S>>-*,.„^^ Appeal from judgment of the General Term of the Supreme Court tj-sjtl^ in the Third Judicial Department [reported in 80 Hun, 162]. va^o The complaint sets forth that the plaintiff is a Massachusetts S«^sji corporation and that the defendant is a village organized under the _V provisions of chapter 291 of the Laws of the state of New York, *J^ ferred by statute to construct and maintain water works, it became responsible for the proper exercise of such power and that such responsibility is necessarily demanded in the interest of an efficient public service, and the inhabitants, who have contributed to the maintenance of such a public work, have a right to hold the defend- ant to the exercise of reasonable care and diligence and to a liability for a failure to do so.^In the^nextplace, it is held, while not deem- ing that the defendant had engaged in a private corporate business, "The president and trustees constitute the board of water commissioners. (Chap. 74, Laws of 1891.) " The defendant receives rents for supplying water ; it has control over all the em- ployees connected with the water works ; it can employ and discharge them at plea- sure ; they are its servants. The construction and maintenance of the water works is something that was not forced upon it by the power of the state ; it could act under the law authorizing it to construct and maintain water works, or refuse to act, at ita pleasure. . . ." Herkick, J., in 80 Huu, pp. 16", 168. — Ed. V>iJUJ>-^>J«=' 624 SPRINGFIELD FIRE INS. CO. V. VILLAGE OF KEESEVILLE. conducted for its own benefit and not for the general pu blic , never- theless, that the defendant having agreed to erect and talve charge of 0'*'*"^*-*f the public work and enterprise for the public within its boundaries, if '^'^r^/^^'^ there is a failure to exercise reasonable care and diligence in main- ;r:.-^ mode of taxation and a part of the general scheme for thepurpose ot l-fe^:;;^^^ . raising revenue with which to carry on the work of government. If I profits accrue over the expense of the maintenance of the system, they go to benefit the public by lessening th^ general burden of taxation. Thef fallacy, as it seems to me, which affects the argument that the municipal corporation can be made liable for the non-user or misuser of its power, consists in that it fails to appreciate the true nature of the function which the corporation performs. It adds to its political machinery for the purpose of benefiting and of protecting its inhabi* 628 RUSSELL V. TACOMA. tants. There is nothing connected with the work, which is not of a governmental and public nature. It is in no sense a j)rivate busi- ness^ and the authority to construct the works was given to it by the legislature, not at its own particular instance or application, but because it was one of the political subdivisions of the state and, as such, was entitled to exercise it. How could it justly be said that the maintenance of the watei* works system, any more than of a fire department, was a matter of private corporate interest? Is it not for all the inhabitants and for their good and protection? No interest was designed to be subserved, other than that of adding to the powers of a community carrying on a local government. If that is true, the alternative is that being for public purposes and for the general wel- fare and protection, the defendant assumed a governmental function and comes under the sanction of the rule which exempts government from suits by citizens. Further elaboration of the subject is quite possible; but the views expressed seem sufficient to justify the conclusion that the determin- ation reached by the General Term was erroneous. The order and judgment appealed from should be reversed and the judgment entered at the Special Term should be affirmed, with costs. All concur (Bartlett, J., upon grounds stated in the opinion, and also upon the further ground that this court decided the principle here involved in Hughes v. The Count]/ of Monroe, 147 N. Y. 49). Ordered accordingly. "V"' ^ ^^ \^' RUSSELL V. TACOMA. 1894. 8 Wash. 156. Anders, J. The City of Tacoma is a city of the first class. Its charter was framed and adopted in accordance vs^ith the provisions of the act of the legislature, entitled " An act to provide for the gov- ernment of cities having a population of twenty thousand or more inhabitants, and declaring an emergency," approved March 24, 1890 (Laws 1889-90, p. 215). Cities organized under this act are empow- ered to "lay out, establish, open, alter, widen, extend, grade, pave, plank, establish grades, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and other public grounds, and to regu. late and control the use thereof," and these provisions of the statute are incorporated into and are a part of the city charter. By an act of congress, approved December 17, 1888. there was granted to the city of Tacoma a license to occupy and control for the purposes of a public par k for the use and benefit of the citizens of the United States, and for no other purposes whatever, a certain RUSSELL V. TACOMA. 629 described tract of land known as Point Defiance Park. Tliis license is subject to the condition expressed in the act, that the United States may take possession of and occupy said land, or any part thereof, for military or other purposes whenever the proper officers of the United States may see fit to do so. The charter of the city of Tacoma provides for a board of park com- missioners, consisting of iive members, to b e appointed by the may or and conn rmed b y the city council ; and it is made the duty of the board, subject to such rules and regulations as the city council may by ordinance provide, among other things, to take charge of and exercise control over all parks belonging to the citj^, to make report to the city council from time to time regarding the condition of the parks, and to recommend appropriations by the council for the improvement of the parks, and when such appropriations have been made, expend the same in such improvements; but no member of said commission shall have power to create any debt, obligation, claim or liability except with the express authority of said commission, conferred at a meeting thereof duly convened and held ; to make such rules and regulations in regard to the use of the yjarks as shall best subserve the interests of the public ; and generally, to do all things necessary and proper to secure for the public the free use and enjoyment of said parks. Wliile the board of park commissioners were in possession of Point Defiance Park, and were improving the same for park purposes, appel - lant was^ injured by an explosion of giant powder and dynamite which occurred in a building erected thereon by the commissioners. It appears that at the time of the^plosion the~appellant was a laborer under the control of a foreman employed by some one connected with the board of park commissioners, and that the powder and dyna- mite which exploded were stored in a building used for the purposes of a blacksmith shop and for storing tools. The blacksmith was engaged in sharpening tools, and the explosives were ignited by sparks from his forge or anvil. This action was brought to recover damages for inju- ries to the person and property of the appellant, alleged to have been caused by the carelessness and negligence of the city in thus storing dangerous explosives in the place above mentioned. The court below held that the city was not liable, and dismissed the action, and plain- tiff appeals. The only question necessary to be determined is, whether the city is liable for malfeasance or misfeasance of its officers while employed in the prosecution of a pu blic wo rk of the characte r of the one under con- siderati on. It is contended by the learned counsel for tUe appellant that the board of park commissioners while engaged in this work were but agents of the city, and that the work itself was but a private enter- prise undertaken by the city for its own benefit, and if this be true there is no doubt that the city is liable to the same extent that a private corporation or individual would be liable under the same circumstances. • ^ -^. -» IvJU:* i^-o^si/i--* ^^'^^^<*'v^\-_ '^JXl ■A) *-*^ S>*/Nju.>-»rr:> \iu«JUr>-^^ •t5"<|, 630 KUSSELL V. TACOMA. As supporting the appellant's contention, that the improvement of Point Defiance Park was an improvement of mere local concern, affecting merely the interests of the municipality, we are cited to the case of State, ex rel. Wood, v. iSchweickardt, 109 Mo. 496 (19 S. W. 47). It appears from an examination of this case that the city of St. Louis was the owner of Forest Park, and, under the power given it by law, was attempting to lease a portion of it for the sale of intoxicating liquors and other refreshments at the park. Proceedings were insti- tuted by the attorney general, in the name of the state, to prevent the city from so doing, and the court held that — "In relation to the property in question, and the discretionary con- trol of the city over it, it must be regarded as a matter of purely local concern, as held and owned by the city not in its political or govern- mental capacity, but in a quasi private capacity, in which the municipal authorities act for the exclusive benefit of the corporation whose interests they represent." We have no doubt of the correctness of that decision, and, if the facts were the same in the case at bar, that case would be cheerfully recognized as high authority in favor of the appellant's contention. But in one respect at least the facts of this case are essentially differ- ent. There the city was the owner of the park and was leasing it for its own priva te emolument. In this case the citv of Tacom a is not the owner of Point Defiance Park, and has no interest in it whatever ex- ^^'■^tji. cepting a license to o£pn >v and control it f or the purpos es of a public park^ It is frankly conceded on behalf of the appellant that if the acts complained of were not proprietary merely, but public and govern- mental, the city is not liable in this action. While it is not always easy to draw the line between the public, or governmental, and private powers of municipal corporations, we think the respondent city, under the facts in this case, in improving the park, was exercising a power or franchise conferred upon it for the public good and not for private corporate advantage. And this being so, it is not liable for the acts or omissions of its officers in that behalf. Murtaugh v. City of St, Louis, 44 Mo. 479 ; Hart v. Bridgeport, 13 Blatchf. 289 ; Richmond v. Long's Achn'rs, 17 Grat. 375 ; Mead v. New Haven, 40 Conn. 72 ; Ham V. Mat/or, etc., 70 N. Y. 459 ; Tindley v. Salem, 137 Mass. 171 ; Hoivard v. Worcester, 153 Mass. 426 (12 L. R. A.; 27 N. E. 11); Curranv. Boston, 151 Mass. 505 (24 N. E. 781); Sherbounie v. Yuba County, 21 Cal. 113. In Murtaugh v. *S'^ Louis, supra, it was sought to make the city of ^iUAXt^ g^^ Louis respond in damages for injury to a non-paving patient caused *^ I by the n egligence of hospital offi jcers and servants, and in speaking of ^--^^^*^ I the non-liability of municipal corporations for the acts of their officers .^ '^ I and agents, the court declared the general result of the authorities as Lo^^d.*^-*', follows : „^j^tt^-<:jf "Where the officer or servant of a municipal corporation is in the o^ - exercise of a power conferred upon the corporation for its private bene- ^iJC^ RUSSELL V. TACOMA. G31 fit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private coriiorations or parties ; but when the acts or omissions coujplained of were done or omitted iu the exercise of a corporate franchise con- ferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for the conse- quences of such acts or omissions on the part of its officers and servants." The same doctrine was enunciated in other cases above cited ; and in Mead v. Neio Haven it was accordingly held that the city was not_ liable for the n egligence of an inspecto r of steq,m b oilpr s, and in Ham V. liayor, that the city was not liable for the negligence of servants employed by the department of public i n structio n. In Tlndley v. Salem it was held, upon an elaborate review of the authorities, that the defendant city was not liable for th e neglig enc e of its serv ants in discharging fireworks which wer e purcha sed a nd used fo r the purpos es of 'aTpuHIc^ celebration. ^In Hoioard v. Worcester the plaintiff was injured by the negligent blasting of rock in e xcavating t h e foundation for a public school house, and the court held that as the work was purely a benefit to thp"pnhnn3 no linbility wns thereby created against the city. See also Condict v. Jersey City, 46 N. J. Law, 157 ; Bryant V. St. ^Paul, 33 Minn. 289 (23 N. W. 220) ; and Barney v. Loioell, 98 Mass. 570. Upon the liability of towns for defects in their public commons, the supreme court of Massachusetts, in Clark v. Waltham, 128 Mass. 567> said : ' ' The plaintiff was injured while travelling upon a public park hav- ing footpaths across it, which, it is alleged, the defendant had negli- V**-* *^-^ gently suffered to be out of repair and unsafe. The park was con- veyed to the town upon the condition that it should ' forever after be kept open as and for a common for the use of said inhabitants of the town of Waltham.' By accepting the deeds of conveyance, the town agreed to the condition, and therefore holds the park for the use of the public. It had constructed footpaths and walks over the park in various directions, but these paths were not a part of the system of highways. They were not laid out as public ways, and the town is not liable under the statutes respecting highways or townways for any de- fect or want of repair which may exist in them. Olirer v. Worcester^ 102 Mass. 489; Gould \. Boston, 120 Mass. 300. Nor can the town be held liable upon the ground that it negligently suffered a dangerous place to exist in the park, and failed to give proper notice to persons using the park by its invitation or license. It holds the park, not for it3_Qw n_profit or _ emo lum ent, but for the direct and immediate use of the p ubHc^ " If it can be said that there is any duty in the town to construct paths over it, or to keep such paths in repair, it is a corporate duty, imposed upon it as the representative and agent of the public and for 632 WOKDEN V. CITY OF NEW BEDFORD. the public benefit. For a breach of such a duty, a private action can- not be maintained against a town or city, unless such action is given by statute." Other reasons are urged by counsel for resix)ndent for sustaining the judgment of the lower court,, but as what we have said disposes of the case, it is not necessary to discuss the points made. The judgment is affirmed. ^ Dunbar, C. J., and Hott, Stiles and Scorr, JJ., concur. d. Negligence in the Performance of a Commercial Function. -vrcrv.W^ ^A^^ WORDEN u CITY OF NEW BEDFORD. ; f XT^ ^^ '-^»'^«J4*'''«^*^-4»,.iJjai881 131 Massachusetts, 23.1 ^^j^KL Tort for personal injuries occasioned to the plaintiff b}- falling through ^J^-^JUa^ a trap-door in a room in a public building in the defendant city, known ^jj^,^jrv as the City Hall. Answer, a general denial. At the trial in the 8u- perior Court, before Brif/ham^ C. J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, the substance of which appears in the opinion. The case was argued at the bar, and was afterwards submitted on additional briefs, by F. A. MiJliken, for the defendant, and -C. L. Bar- ^^^'^^^^^^fiei/, for the plaintiff. J . X'^A^ Morton, J. Under the instructions given them, the jur}- must have found that the citv of New Bedford was the owner of a buildinor known as the City Hall, used for the ordinary* municipal purposes ; that it had been accustomed to let it, for profit, for lectures, exhibitions, ahiuse- ments and other like purposes, Iiaving no relation to municipal atfairs or interests ; that at the time the injury happened to the plaintiff it had, acting by its committee on public property, let the hall and a smaller room adjoining, for profit, to the Southern Massachusetts Poultry Asso- ciation ; that the sum paid b}- the association included compensation for the lighting and heating the rooms and for the services of the jani- ^^fiU9AA. I -^ ^^^y *^'' ^^'^^ ^^ ^^°^ liable to a private citizen for an injury caused 'V'^'^s 1 by any defect or want of repair in a cit}' or town hall or other public 1 Onlv so much of the opinion is given as relates to a single point. — Ed. «r-< jc^-^i^^^^^^^^^y^^^^^ '^^ ^*"»^^^-«w!v4 MULCAIRNS V. CITY OF JANESVILLE. 633 building erected and used soleh* for municipnl i)m'poses. or for negli- gence of its agents in tlie management of such buildings. This is because it is not liable to private actions for omission or neglect to perform a corporate dut}' imposed by general laws upon all cities and towns alike, from the performance of which it derives no compen- sation. But when a cit}' or town does not devote such building exclusively I ")\(^^4>n to municipal uses, but lets it or a part of it for its own advantage and l*icJ«^ V> emolument, by receiving rents, or otherwise, it is liable while it is so |Ay^^^^. C« let in the same manner as a private owner would be. Oliver v. Wor- ' ..J*'**^ y cester, 102 Mass. 489. Wll v. Boston, 122 Mass. 344. -- - - But the defendant contends that a city or town has no power to let its public buildings for private uses, that the letting to the poultry asso- ciation, if made by the cit}-, was ultra vires, and therefore it is not liable. This ground is untenable. The city could not erect buildings "|^ Jr*"^/^ for business or speculative p u rposes, but having a city hall, l)uilt in good faitii and used for municipa l purposes, it has the rigli t to a ll owll to be used incidentall}' for other purposes, either gratuitously or for u compensnttion. Such a use is withm its legal authority, and is com mo n"^/*^^! ^ in most of our cities and towns. French v. Quincy, 3 Allen, 9. e^^IZi^^ • •••••»• \ "We are therefore of opinion that, upon the facts proved in this case, the defendant was liable ; it was dealing with the city hall, not in the discharge of a public duty, but for its own benefit and gain in a private enterprise, in the same way as a private owner might, and was lial)le for negligence in the management of the property' to the same extent . as such private owner would be.^ Exceptions overruled. MULCAIRNS V. CITY OF JANESVILLK^'^^^^^^^ 1886. ^1 Wisconsin, 2\? ^^^^ A»^j3^ . ' - * Orton, J. The complaint substantially charges that the city, being ""^ -h' authorized so to do, about the 9th day of August, 1884, ente red upon iU^ <;j^ the constructi on of a cistern, for the use of the fire de p artmen t of said cityTToF protection against fire ; tbaftBe cit}' was authorized to and did emplo}' men in the construction of the same, and that about the l6tU da}' of said month said citj' had made an excavation for said cistern and erected within the same a wall of stone masonry, along the sides of the same, resting upon the bottom of said excavation, about 40 feet ^Q^^^^j^ long, 10 feet high,. 20 inches in thickness, and about 12 feet wide ; that fcj^ ^_^ it was so constructed bj the city, i n su ch a c areless and negligent »Ar^-Jv manner, and negflgently allowed to so rem ain, to the knowledge of tEe" 4,^_Jl,J(j;; 1 See Cmnhlan v. Cambridge, 166 Mass. 268, 44 N. E. 218; Xicholson v. Detroit, 129 Midi. 246, 88 N. W. 695, 56 L. R. A. 601. 2 Statement and arguments omitted. — Ed. ^^ >• ^«^S -v^w % »i^ ^p.-'".. .^v.. ,.v.v,^ ^v,...;. ivv,.v.v. vvr ..^ l.v,..v... .......... .....j..„_ V'^""^ city. The distinction between the two cases is very wide and quite apparent. If the city could not be held liable in such a case, it never ^ could in any; for it is a common case of special employment for the »5Sr BARRON V. DETROIT. 635 performance of special services for and on behalf of the cit}'. I t was i ^\^e«jt.o. the legal duty of tlie city to construct cisterns for fire purposes, and \ ^Xfta^ it was engaged in the attempted performance of this duty through 1 CV;2*-^-^ its' owjijgi;iy§,te^a^encies, and not through the fire department or its ■ ^_^ officers, or other officers of the city whose duty it was to perform such -^^.J^A work. 1^^ Tlie case of Spelman v. Portage, 41 Wis. 144, which is clearly in point, most clearlj" points out these distinctions. The distinction is made perhaps more clearly' in the cases of Harper v. Mlhoaukee, 30 Wis. 365, and Little v. 3Iadiso7i, 49 Wis. 605, Both the principle and the distinction of cases are fully considered and clearly established in our own cases, so that we need not concern ourselves ver}- much about cases in other states, for the above cases were decided upon a full examination of authorities elsewhere. [Remainder of opinion omitted.] Judgment forjplaintiff affirmed. %^^\'^ \-^\ BARRON V. DETROIT^^Iti^i^^'^^ An-^-MU-s^v^ . t>:3 893. 94 Mich:m. "^^^-^e/V^j^ Long, J. The facts in this case are not in dispute. It appears that in January, 1890, by resolution of the common council, the city enginee r was instructed t o pre pa re plans f or the construction of a market building. The plans were prepared and submitted, in response to the resolution, and the board of public works was directed to adver- VNv.A-^ tise for proposals for constructing the building in accordance there- ^^-O'^^j^kSiju with. Proposals were advertised for, and the board of public works 6«4(j*_< reported that Patrick Dee was the lowest bidder ; and by inst ruction of ^^.^W-v-^ the common co uncil th^ boar d enter ed into a contrac t for tEe construe- V,j^y\^ tion of the building with him, which contr act was confirmed~T5yjEhe ^ counciTr The plans were prepared by a draughtsman in th^office of^ f^^^ilM and under the supervision of, the city engineer. ^}f F\ ^ The building was an open structure, built on iron columns about 15 ^^ - feet apart, surmounted by a roof composed of wood and iron. It was built in the form of a cross ; being about 300 feet one way, and 400 feet the other. The columns rested upon stone piers, but were not ^-'*-v "^^k/^ anchored. At the time the plans were prepared, the propriety of an- Mn^uoX choring the columns was discussed by the draughtsm.an and engineer. t^> i^^ The draughtsman thought they ought to be anchored, but the engineer ^ ^ouv/T thought the construction strong enough, and his opinion was followed. ^ ^^ He claims, however, to have looked the plans over hurriedly, and that X' he did not examine them carefully, for the reason that a competent >*^. superintendent was to be employed, and that the building would be properly constructe'd under him, and if any defect existed the omission v^/a 636 BAKRON V. DETROIT. would be supplied as the work progressed. The superintendent was appointed, and the work carried on under the contractor. Before it was completed some members of the board of public works expressed the opinion that the structure was dangerous, and would go down in a wind ; and on the advice of the city engineer it was examined by archi- tects, and upon their recommendation several braces were added, to strengthen it. One of the architects thus called says that he advised the inserting of some strips, and putting bolts through them, and anchoring them down ; that it should be anchored in some way. These suggestions were referred by tke board of public works to the contrac- tor, and he placed extra braces in the roof, but did not anchor the columns. It was testified by some of the architects that in such build- ings, in this part of the country, 40 pounds to the square foot, wind pressure, is usually allowed ; and it was further shown that the velocity of the wind, to exert 40 pounds pressure, is 90 to 100 miles an hour. On December 23, 1890, in a wind blowing about 50 miles an hour, this market building fell, no other buildings in the vicinity being af- fected ; so that it is apparent that the f ault wa s in the fa ilure to anchor th e columns. The pl aintiff was injured by the falling of the building. It is conceded that at the time he was lawfully upon the ^h>A^ \ premises, having paid the usual license fee required and collected by I the city. His claim for damages having been refused by the common o*-^^,- rv. ! council, this suit was brought, and he was awarded damages in the sum ""'^ of $1,000. By the charter of the city of Detroit the common council is authorized to erect and maintain market houses, establish markets and market places, etc. It is contended by counsel for the city that when the common coun- cil of the city authorized the making of plans and specifications for the market building, and directed the making of the contracts for its con- struction, it performed a purely legislative function ; that the fault which occasioned the collapse of the building was in the plan, which failed to provide for anchoring it so that it could not be lifted from its foundation by tlie wind ; that there was evident miscalculation as to the weight being sufficient to keep it in place. Counsel i nsists that th e faul ty is with leg islative action, and therefore a suit grounded upon it is grounded upon a wrong attributable to the legislative body itself, as the determination to construct the public work and the prescribing of the pldns, are matters of legislation on behalf of the city, under the direc- tion of its legislative body ; that in carrying out the plans there may be negligence attributable to ministerial officers, but negligence in the plans themselves must be attributable to the body that devised, ordered, or adopted them, — and therefore the action cannot be maintained, under the principle applied in Larkin v. County of Saginaw, 11 Mich. 88 ; City of Detroit v. Beckman^ 3-4 Id. 125 ; City of Lansing y. Toolan^ 37 Id. 152; Davis v. City of Jackson^ 61 Id. 530. 9 V BARRON V. DETROIT. 637 This contention would undoubtedly be correct if the city had been acting purely in a matter of public concern, in its governmental capacity ^ ^ ^ or character, and the cases cited would then be applicable. In Larkin\~^^.Z^\ V. County of Saginaw the plaintiff sought to recover for damages! >*-****^ caused by a detective bridge, and it was held that the county was not| liable for the acts of the board of supervisors in the exercise of its legislative power. In Detroit v. Beckman, City of Lansing v. Toolan, and Davis v. City of Jackson, the actions were for injuries caused by defects in public highways. In each of these cases it was held that, \ '^•%*-*^ when complaint is made that the original plan of a public work is so \ ^^^~ defective as to render the work dangerous when completed, the fault is I ^^ ^ with legislative action, for which no action can be maintained. Ashley *y^jCX^ V. City of Port Huron, 35 Mich. 296, is to the same effect. ^TyVjj; Judge Dillon, in his work on Municipal Corporations (4th ed., § 66), states the rule as follows : A municipal corporation — TyJjlCji "Possesses a double character: The one, governmental, legislative, ^-^7\Z or public ; the other, in a sense, proprietary or private. The distinction ^i^-& between these, though sometimes difficult to trace, is highly important, and is frequently refen*ed to, particularly in the cases relating to the implied or common-law liability of municipal corporations for the negli- gence of their sers'ants, agents, or officers, in the execution of corporate duties and powers. On this distinction, indeed, rests the doctrine of such implied liability. In its governmental or public character, the corporation is made, by the state, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be ex- ercised for the public good on behalf of the state, rather than for itself. In this respect it is assimilated, in its nature and functions, to a county corporation, which, as we have seen, is purely part of the governmental machinery of the sovereignty which creates it. Over all its civil, politi- cal, or governmental powers the authority of the legislature is, in the nature of things, supreme and without limitation, unless the limitation is found in the constitution of the particular state. But, in its ]3ro - prietary or private character, the theory is that the powers jxe supposed jiot to be confer red, primarily~oFchiefly, from^^nsiderations.co nnected with the government bribe state at Targe, buf for the private ad van- tage of the compact community, which \b incorporated a if^ {\ distinnt legal personal ity or corporate individual ; an d as to such powers ^ , and to property acquired thereunder, and contracts ma de with reference there - to, t he cor poration is to be regarded, quo ad i'nr.^ na a pfiyntp. corpora - tion, or at least not public in tlie sense tliat the i^owor of the leo-jslature ove r it, or the rights rei»resented by it, is omnipote nt." This rule is supported by a great number of authorities from the several states, and from the decisions of the Supreme Court of the United States, in the note to the section above quoted. It is, h(^wever, chal- lenged by Denio, C. J., in Darlington v. Mayor, 31 N. Y. 164. He asserts the unlimited power of the legislature over municipal corporations 638 BAREON V. DETEOIT. and their property, and maintains that such corporations are altogether public, and all their rights and powers public in their nature, and that their property, though held for income or sale, and unconnected with any use for the purposes of municipal government, is under the control of the legislature, and not within the provisions of the constitution pro- d>>^'^**^ tecting private property. He denies the distinction between the public and private functions of city governments, and maintains that, as re- spects the state, all their powers and functions are public. This doctrine, however, has not obtained in this state ; but it is held that cities are mentioned in our Constitution, in connection with local corporations, which are put upon a popular basis entirely beyond legislative inter- ference, so far as local independence of action is concerned. Opinion of Campbell, C. J., in People v. Hurlbut, 24 Mich. 86. In Board of Park Commissioners v. Common Council^ 28 Mich. 228, it was said by Mr. Justice Cooley : " We also referred, in People v. Hurlbut, to several decisions in the Federal Supreme Court, and elsewhere, to show that municipal corpo- rations, considered as communities endowed with peculiar functions for the benefit of their own citizens, have always been recognized as possessing powers and capacities, and as being entitled to exemptions, distinct from those which they possess or can claim as conveniences in state government. If the authorities are examined it will be found that these powers and capacities, and the interests which are acquired under them, are usually spoken of as jyrivate, in contradiction to those in which the state is concerned, and which are called jjublic ; thus put- ting these corporations, as regards all such powers, capacities, and interests, substantially on the footing of private corporations." This same distinction was also made in City of Detroit v. Corey, 9 Mich. 165 ; Mayor v. Park Commissioners, 44 Id. 602 ; Niles Water Works V. City of Niles, 59 Id. 324 ; Cooper v. Detroit, 42 Id. 584. Under the facts in this case, the citv must be held to the same degree of care, not onl}- in the construction, but in the plan of the construction tself, as would a private corporation or an individual. Under the pro- visions of the charter granting the power to erect it, thei'e was no im- perative dut}' cast upon the city to provide for a market building. It could build it or not, as the council might determine. It is not like the case of a public highway, or the building of a bridge, where the duty is cast upon the municipality, by general law, to build and maintain them. Had this building been owned by an individual or a private corporation, the liability of either for this accident would not have been questioned, under the facts stated. I j^^ The judgment must be attirmed, with costs. \t- -Jf The other Justices concui-red. -^l,,*--^ V' I CITY OF PEKIN V. McMAHON. 639 CITY OF PEKIN 1895. V. ^-..^IjSkSi CUXSL^^L ^-^'^^'^^^ McMAHON. ' ^"J-** ^^ «t-^oo-«rc^*-si 154 ///. 141. ^-N-oi,j-4<^...-^0», Vry.,,-^ This is an action on the case brought by appellee, as adrninistra- J-^ ) tor of the estate of his deceased son, Frank McMahon, against appel- lant, the City of Pekin, to recover damages for the death of plaintiff's intestate alleged to have been caused by the negligence of said City. Verdict and judgment in the Circuit Court were in favor of the plaintiff. The Appellate Court has athrraQd the judgment, and the present appeal is from such judgment of affirmance. The declaration alleges, that, on April 12, 1892, the City owned lots 7, 8, 9 and 10 in Block 11 in Bailey's Addition to Pekin; that, for a long time before that date, it had caused a dangerous hole o r pit to be made in said lots by digging therein and Temoving sand and gravel _tii£refrom-f-that it permitted water to acciimulate and remain in said hole or pit, so that it became a nuisance and dangerous to the lives of citizens and " of children of tender years incapable of exercising ordi- nars- care or discretion who might be attracted thereto ; " that it was defendant's duty to cause the same to be drained, so as to remove the water therefrom ; that the deceased, a child of tender years and inca- pable of exercising ordinary care or discretion, was attracted thereto, and necessarily and unavoidably, on account of defendant's failure to drain the water from said pit, without fault on his part or on the part of his parents, fell into the said pit, and was drowned.^ The plea was the general issue, with notice of special matter of de- fense to the effect, that the premises were the property of the city ; that it was incorporated under the general Act of incorporation ; that the lots were enclosed by a fence on the east and west sides thereof and nearly enclosed on the south and north sides thereof ; that the deceased entered and remained upon the premises as a mere trespasser, and en- gaged in play without the knowledge, permission or invitation of defendant, and carelessly, accidentally or negligently fell into a pool of water thereon, and was drowned. i jMagruder, J. First, the main question in the case arises out of thci (^X-V^^'^ refusal of the trial Court to give the second and third instructions askedl *» oJtW*-^-C by the defendant. Is an individual land owner obliged to respond! "V^^^^^- ^ **"' in damages for the death of a child occurring upon his premises under I ^^^oiZ«! such circumstances as are developed by the testimony in this case? jGL'o^. [The court answered this question in the affirmative.] Second, a municipal corporation holding p rope rty as a private owner \ <3-^^ \*^ i s chargeabl e wi th the sa me d uties an d Qblig; ations, which d evolve on I '*-*-*5l ^ individuals. Where it owns, leases or controls lands, houses, clocks, I T^--^J-^'^ 1 Statement of facts, arguments, and part of opinion omitted. — Ed. f^ ^ ^X^ -S-v^ c^. ^^ i>'<^ r'^:~.fZ^ 640 CITY OF PEKIN V. McMAHON. piers, water and gas works, it is liable, in respect to the care of the same, for injuries arising from neglect, in the same m anner as an indi- vidual owner is liable, and must respond in thp samp wny for prPP^Mlg or suffering nuisances. Cooley on Torts, marg. pages Gl'J, G20 ; 15 Am. & Eng. Enc. of Law, page 1155, and cases cited; Mackey v. City of Vicksburg, siqora; Clark v. Manchester, supra. Third, the plaintiff introduced in evidence, on the trial below, sec- ^ tion 8 of the city ordinances of the city of Pekin which is as follows ; ir-i^*-^'-^*''-^''*-* "8. Any owner or occupant or person in possession of any unen- Ls-*-**^ closed lot or parcel of land in said city, who shall, by digging or remov- ^.^^^^J!«-«»-Mng earth, sand or gravel from any such lot or parcel of land, make ,o^CJs| or cause to be made in such unenclosed lot or parcel of land any pit or J^V v-^-J<,* hole of such depth and character as to be considered dangerous, un- sightly or a source of annoyance to the persons residing in the vicinity thereof or adjacent thereto, s hall bedeem ed guUt^_of creatinganui- sa nce; and any owner, occupant or possessor of any such unenclosed Tot or parcel of land who shall refuse or neglect to remed}' or abate said nuisance, by filling up or covering or securely fencing the same, after being notified so to do by the superintendent of police, or by any member of the police force, or any person aggrieved thereby, shall be subject to a penalty of not less than five dollars nor more than fifty dollars, and a further penalty of two dollars for every day, after the first conviction, that said nuisance shall by him be continued," It is claimed, that the court erred in admitting this ordinance in evi- dence. The declaration alleged that defendant had negligently permit- ted large quantities of water to accumulate in the pit upon the lots in question, " so that the same became a nuisance and dangerous to the lives ... of children of tender years," etc. The plea of the general issue had the effect of putting it at issue whether the excavation was a ^^^ '^O7p0p-^<7^ tavation ought to have been under the requirements exacted by the city itself of private owners of land. The City was thereby estopped from. ^ ''^ denying its duty under the circumstances. W HOLLMAN V. PLATTEVILLE. - tft^„^>^^:i-i-| ^^'^*^ HOLLMAN V. PLATTEVILLE. rN-.^. '»^ r r'^^' jggg ioITTjs. 94. Bardeen, J.^ ... The only question we need determine is whether the defendants are liable in damages for the cutting of the trees on the cemetery lot in question. As we view the case, it becomes unnecessary to determine whether plaintiff has the legal title to the lot or not. He entered into possession of the same in 1867, inclosed it by a fence, and planted the trees that were cut down, and, after the fence was re- moved, has cared for and attended to the lot, " and has been in pos- session of the same, claiming it as a family burial lot," ever since. Whether his right thereto be considered a mere privilege, right, or easement for the burial of his dead, or whether his rights have ripened into absolute title by adverse possession, it matters not for the pur- pose of this case. It is further urged that the city was engaged in an act for the public benefit, in which it had no particular interest, and from which it de- rived no special advantage in its corporate capacity, and therefore it cannot be held liable. The defendant city is a municipal corporation, charged with certain public duties in relation to the state and the public generally, as well as with obligations that are local and relate to the welfare of its members, and the regulation of its internal affairs. In the administration and execution of its legislative and governmental powers — such powers as are, in their very nature, public and in aid of the state — it sustains no liability to one suffering injury, if such' powers are imperfectly or negligently executed. .. Dillon, Mun. Corp. §§ 965, 966. But, as respects the performance and execution of mere corporate duties, the rule is different. AVhen the act done is within its charter powers and relates to the administration of local or internal affairs, as distinguished from its legislative, discretionary, or quasi- judicial duties, the rule of respondeat sujyerior applies, and the city will become liable for the act of its servants and agents, wliich it has authorized or adopted. Dillon, Mun. Corp. § 980. In this case there can be no question but that the defendant Stephens was the servant of the city and was acting under its authority. The answer expressly admits that the acts done by him were done under the direction and •authority of the common council. The city had a right to adopt rea- sonable regulations for the management and control of the cemetery. It also had the power to enforce its regulations in conformity to the law granting such power. It__hadno ri^lit or authority to disturb or invade the possession of the lot held by plaintiff except iu puisnance., of its statutory authority. Its fault lay in the attempted exercise of 1 Facts, arguments, and part of opinion omitted. — Ed. JMJU-v 642 LITTLE V. HOLYOKE. its statutory powers in an unlawful manner, and, having authorized the act done and having adopted the wrongful act of its servant, as appears by its answer, the city must be held to respond for the actual damage done. Dillon, Mun. Coi'p. § 972 ; Wilde v. Neio Orleans, 12 La. Ann. 15. See Wilson v. Mineral Point,, 39 Wis. 160; Thayer v. Boston, 19 Pick. 511; Squiers v. Neenah, 24 "Wis. 588; Crossett v. Janesville, 28 Wis. 420. V"^ LITTLE V. HOLYOKE. C^^ t^ (ttSC^ ^ 1900. 177 Mass. U4. '^^''''V»\vw^>wt^V^ Hammond, J, This is an action of tort for injuries suflfeted B^ ' the plaintiff in descending a flight of stairs. At the trial the defendant t presented ten requests for instructions. In the argument before us it insists only upon the following, namely: 1. On all the evidence and the pleadings the plaintiff cannot recover, and the jury must find for the defendant. 2. There is no sufficient evidence that the plaintiff H Laj was in the exercise of due care, and the plaintiff cannot recover. Hvt, 3. There is no sufficient evidence that the defendant was negligent, .(/ and the plaintiff cannot recover. f^-^ It was aoreed at the trial that the defendant let this hall to the Woman's Relief Corps for the day and night in question, for hire, and furnished the lights ; that the gallery was a part of the hall, and that the city furnished light and a janitor to take care of the hall. Without reciting the evidence in detail it is sufficient to say we bavo examined it, and think that, in addition to the facts agreed upon ao above stated, it would warrant a finding that the defendant occa- sionally let the large hall in the second story of the City Hall building for public gatherings and received pay therefor ; that on the evening in question the hall was let for the purpose of an entertainment to be given by the lessee; that it was understood as a part of the bargain that the defendant should light and keep properly lighted . ^ the entry and stairs leading to the hall and to the gallery of the "^^ same ; that the stairs leading to the gallery were not properly lighted, r^"^ but that one at least of the lights was negligently allowed to go ''^-A " out, so that the winding part of the stairs was in comparative darkness; that the descent of the stairs under these circumstances was attended with danger; that the plaintiff, who had been in the (yy , gallery at the entertainment, in attempting to descend the stairs / fell thereon and was injured ; that she was at the time in the exercise of due care, and that the accident was due to the negligent failure of the defendant to keep the stairs properly lighted. It is true that the evidence was conflicting on many of these points, and perhaps a find- ing the other way might have been reasonably expected; but if the '• ^ I DAVOUST V. ALAMEDA. 643 jury made the findings in accordance with the foregoing statement of what the evidence warranted, then t he case is one where a municip al corporation has engaged in a private enterj^rise for profit and has been negligent in the performance of a duty imposed upon it in the pursuit of tfiatbusTuess, and the case is well within the principles luid down in ''Ollcer \. IVorcester^l 02 Mass. 489, Collins v. Greenfidd, 172 Mass. TST^i, and Marwedel v. C'oo/c, 154 Mass. 235, and the plaintiff may recover. The exclusion of the evidence offered by the defendant to show that the stairs were well built, that winding stairs were a common and usual construction, that such stairs were suited to the peculiar construction of the building in that place, and that the staii-s in question were safe and suitable, did not harm the defendant. The plaintiff did not claim that these stairs were improperly made for winding stairs, if winding stairs were to be in that place, but did claim that if such stairs were placed there they should be properly lighted. It was not a question whether winding stairs were improper, but whether at the time of the accident these stairs, in view of their construction, were properly lighted. As stated by the judge in his charge to the jury, the contention of the plaintiff was that "this stairway was of such a construction and such a nature . . . that it was dangerous unless there was sufficient light to enable her to see and understand and appreciate what the danger was." • V t '^ The evidence offered to show that the amount of rents was insuffi-/ rW'''-^i'^ cient to pay the expense of maintaining the hall was properly ex-\ oL-^V^ eluded. It was of no consequence whether the business was profitable. \ ■ ^jJJa-^^';^ Collins V. Greenfield, uhi sujyra. I tdi^ *- It being conceded by the defendant that the hall was let by the Ajl./>..;w\>« defendant, no question as to the authority of the city clerk or any other city official inconsistent with that admission can be raised. \ %^ ^ ^ W \ Exceptions overruled. ALAMEDA. '^ DAVOUST V. 1906. 149Cal. 69. ilijU«2A*Lc, >-^V McFarland, J.^ — This action is to recover damages for the death of plaintiff's wife alleged to have been caused by the negligence of de- fendant, the city of Alameda, in operating an electric-lighti ng p lant owned by defendant, and used for the purpose offigKting said city and furnishing light to its inhabitants for domestic purposes. The trial court granted a nonsuit and gave judgment for defendant, and .\ A 10 3 1 Part of the opinion and concurring opinion of Shaw, J., omitted. — Ed. rvv-vA 0) "^-S . f\(,i J 644 DAVOUST V. ALAMEDA. jv^ WO^ JAf'W- u ^ from this judgment plaintiff appeals. There is a bill of exceptions which presents the evidence and the rulings of the court. It does not appear upon what ground the nonsuit was granted; but the main point argued by counsel for respondent is that because the defendant is a municipal corporation it is not liable to pay any damages, even though the death of plaintiff's wife was caused by the negligent operation of the electric plant. And in support of this contention respondent relies on Winhigler v. City of Los Angeles, 45 Cal. 36; Denning v. State, 123 Cal. 316, [55 Fac. 1000]; Chope v. City of Eureka, 78 Cal. 588, [21 Pac. Rep. 364, 12 Am. St. Rep. 113], and the cases there cited. These cases undoubtedly establish the rule in this state, although it has been held differently in some other juris- dictions, that a mu nicipal_corporatiou, when exercising governmental functions as an agent of the sovereign power, is not liable for damages caused by the negligence of its employees, unless it is expressly so^ made liable by statute. But this rule applies to a municipal corpora- tion only when acting in its governmental, political, or public capacity as an instrumentality intrusted by the state with the subordinate con- trol of some public affair. Such a corporation, however, has a double character — governmental, and also proprietary and private — and when acting in the latter capacity its liabilities arising out of either contract or tort are the same as those of natural persons or private corporations. And while we have been referred to no case in this state where the proposition last stated was directly involved, yet in all the cases from this state cited by respondent the acts complained of were connected with the exercise of what has uniformly been held to be governmental functions, such as maintenance of public streets and road sj pjH^tection from fire, etc. However, the distinctioh has been frequently recognized and stated in the California decisions. In Toil- chard v. Touchard, 5 Cal. 307, the court say : " A corporation, both by the civil and common law, is a person, an artificial person; and although a municipal corporation has delegated to it certain powers of government, it is only in reference to those delegated powers that it will be regarded as a government. In reference to all other of its transactions, such as affect its ownership of property in buying, selling, or granting, and in reference to all matters of contract, it must be looked upon and treated as a private person, and its contracts con- strued in the same manner and with like effect as those of natural per- sons." In San Francisco Gas Co. v. San Francisco, 9 Cal. 469, Justice Field says : " The distinction alluded to refers to the double character of a municipal corporation; its public and political character in which it exercises subordinate and legislative powers, and its private character in which it exercises the powers of an individual or private corporation." In UUah v. JJkiah W. and I. Co., 142 Cal. 179, [75 Pac. 775, 100 Am. St. Rep. 107], this court says: "The distinction between the powers conferred on municipal corporations for public purposes and for the general public good, and those conferred for >\ \. DAVOUST V. ALAMEDA. 645 private corporate purposes, is clearly marked by the decisions." Cit- ing cases. In Denning v. State^ 123 Cal. 316, [55 Pac. Rep. lOOOj, it was held that the state was not liable for injury caused plaintiflf by ^ ^ nealioence of a board of harbor commissioners, because the latter were L>>l^^v''>^ exercising purely governmental powers ; but the distinction al)Ove LceJt-JL mentioned was clearly stated. The court said, among other things, that the plaintiff, when injured, was employed in a distinct branch of the service, — " viz. the protec tion aga inst or extinguishment of lireSj \ which, even in the case of municipal corporations, is uniformly held to Fe~nie"ex'ercise of a purely governmental function; and there is cer- tamry'as strong ground for distinguishing between the different func- tions of the board as there can be for distinguishing between the different functions of a municipal corporation, in the exercise of some of which the corporation is liable for negligence, while in others it is not." See, also, Holland v. San Francisco^ 7 Cal. 361 ; Argenti v. San Francisco, 16 Cal. 255 ; Brown \. Board of Education, 103 Cal. 531, [37 Pac. 503]. In other jurisdictions the rule that municipal corporations are liable like individuals and private corporations when the injury arises out of their exercise of mere proprietary and private rights has been extremely and frequently decided. Indeed, the rule has become text-book law. In Dillon on Municipal Corporations (sec. 66) the author, having said that a municipal corporation "possesses a double character; one gov- ernmental, legislative, or public ; the other, in a sense, proprietary or private," proceeds as follows : " In its governmental or public charac- ter, the corporation is made, by the state, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state rather than for itself ; . . . but in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual." There are numerous authorities to the general point of the distinction between the governmental and the propriety character of municipal corporations, but it will be sufficient here, on the general question, to refer to the opinion of the supreme court of Oregon in the case of Esherg Cigar Co. v. Portland, 34 Or. 282, [55 Pac. 961, 75 Am. St. Rep. 651], where the authorities are nearly all cited. See, also. South Carolina v. United States, 199 U. S. 437, [26 Sup. Ct. 110, 116]. And that the respondent, in maintaining and operating its electric. / ci^^ c plant, was exercising, not its governmental functions, but its proprie- [ ^^_^;^)^ tary an d private rights, is entirely clear. There is obviously no dis- V«-vo\ tinctionTso far as the law on the subject is concerned, between an .i^,^^^_^^ electric plant for furnishing light, which is comparatively a new thing, \^ and a gas plant maintained for the same purpose ; and it has been di- . rectly held that a municipal corporation operating a gas plant is liab le ^ > ^ 646 DAVOUST V. ALAMEDA. ^' for injury caused bj its careless management. In Dillon on Municipal Corporations (sec. 954) it is said : "A municipal corporation owning waterworks or gasworks which supply private consumers on the pay- ment of tolls is liable for the negligence of its agents and servants the same as like private proprietors would be"; and ample authoritj' is cited sustaining the text. In Western S. F. Society/ v. Philadelpliia, 31 Pa. 183, [72 Am. Dec. 730], the Supreme Court of Pennsylvania say : " The supply of gaslight is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals or private corporations, and in very many instances they are accomplished by those means. If this power is granted to a borough or a city, it is a special private franchise. . . . The whole investment is the private property of the city, as much so as the lands and houses belonging to it. . . . It [the city] stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred." In San Francisco Gas Co. v.' San Francisco, 9 Cal. 469, the court say: "The purchase of gas involves only the exercise of a power of a private corporation ; it requires no exercise of any political power. It is as much an act of a private character as if made by a private corporation." In Esherg Cigar Co. v. Portland, 33 Or. 282, [55 Pac. 961, 75 Am. St. Rep. 651], the facts were that the city of Portland owned and maintained a system of waterworks, and the plaintiff therein brought the action for damages foFTiiJunes caused by the negligent management of the said waterworks; and it was contended for defendant " that the waterworks belonged to the city in its public or governmental capacity, and it therefore is not liable in a common-law action for negligence in con- structing or maintaining the same." But the court held otherwise, and, after alluding to the distinction above stated, said : "In accordance with this distinction it is quite universally held that when a municipal corporation voluntarily undertakes to construct and maintain water or gas works in pursuance of statutory authority, for the purpose of sup- plying the inhabitants thereof with water or gas at rates established by the city, it is liable for an injury in consequence of its acts in construct- ing and maintaining such works, the same as a private corporation or individual." And surely this principle applies as fully to the main- tenance of an electric-lighting plant as to the maintenance of water- works. In the case at bar, the city of Alameda was merely given the optional privilege of constructing and maintaining an electric-lighting plant; no duty was imposed on it to do so. Our conclusion on the main point above discussed is that the respondent cannot escape liability for the negligence averred in the complaint on the ground that it is a municipal corporation.^ 1 See Rhobidas v. Concord, 70 N. H. 90, 47 Atl. 82, 85 Am. St. Rep. 604, 51 L. R. A. \381. :v a''.^. LIBBY V. PORTLAND. 647 LIBBY .. PORTLAND. ^T^ct^ cM^^^ 1909. 105 Me. 370. \ Action on the case for personal injuries alleged to Cornish, J have been sustained by the plaintiff by reason of the dfif££tiv e condi- tion of the basement step of a building belonging to the defendant. TKe'writ contains two counts. A general demurrer was filed to each count. The presiding Justice overruled both demurrers and the de- fendant alleged exceptions. If eiTher count sets forth a cause of action, the exceptions must be overruled. The first count alleges in substance that the defendant was the law- ful owner and in the lawful possession, control and management of a certain farm witli the buildings thereon which it was operating in the usual method of husbandry and that '' all of said buildings, land and other property were then and there used by the said defendant for its own emolument, profit and advantage." It no where alleges or even intimates that this was a poorjarm and thai" the building, where the Injury was received, was a city almshouse, i'he second count is based squarely on the allegation of an almshouse, in the maintenance of which negligence is charged. It is necessary to consider the allega- tions of the first count alone, the objection to which on the part of the defendant is that the alleged negligence appears to have resulted from the performance of ultra vires acts by the city and that the city can- not be held liable in the performance of such acts. This leads us to a brief consideration of the rights, powers, duties and liabilities of municipal corporations in this State. In the absence of any special rights conferred or liabilities imposed by legislative charter, towns and cities act in a dual capacity, the one corporate, the other governmental. To the former belongs the performance of acts done in what may be called their private character, in the management of property or rights held voluntarily for their own immediate profit and advantage as a corporation, although ultimately inuring to the benefit of the public, such as the ownership and manage- ment of real estate, the making of contracts and the right to sue and be sued ; to the latter belongs the discharge of duties imposed upon them by the Legislature for the public benefit, such as the support of the poor, the maintenance of schools, the construction and maintenance of highways and bridges, and the assessment and collection of taxes. This distinction is sharply defined in a long line of decisions of which it is necessary to cite only the following : Easfmafi v. Mi-redith, 36 N. H. 284; Oliver v. Worcester, 102 Mass. 489; Small v. Danville, 51 Maine, 359 ; Bryant v. Westhrook, 86 Maine, 450. The Revised Statutes recognize this twofold character, ch. 4, sec. 1, making the in- habitants of each town a body corporate, and ch. 1, sec. 1, making towns a subdivision of the State. ., ^. a ■^-^ubV 648 LIBBY V, PORTLAND. The precise question is whether the city of Portland acting in its corporate capacity could lawfully own, control and manage a farm house within its limits, disconnected from any public use, and for its own emolument, profit and advantage. 1. It may be conceded that a city or town would not have the right to raise money by taxation for the purchase of such a farm any more than for the establishment of manufactories. Opinion of Justices, 58 Maine, 590, or for the erection of buildings for the purpose of renting them as stores, or banks, or halls. French v. Quincy, 3 Allen, 9. V| But it does not follow that a city or town might not be the law- ^' ful and legal owner of a farm or of a block of rentable buildings and might not as such owner maintain the same for its pecuniary advantage. Suppose, by way of illustration, that the municipal officers of a town bid in, in behalf of the town, real estate sold for non-payment of taxes, as they are authorized to do by R. S., c. 10, sec. 85. It is clearly the purpose of the statute that the title shall vest in the town, if the statutory proceedings have been complied with and the property j is not redeemed by the owner. Such vesting of title confers upon ^Tj the town all the ordinary incidents of lawful ownership, among which '' is the right to use and utilize. Must the town, although the lawful owner, yet because it is a town, let the property, if land, lie fallow, or if buildings, remain vacant and unrented? Such a hollow result can- not be the purpose of the statute. Suppose again that some benefactor should convey by deed, or devise by will, such real estate to the town as a gift, would not the title vest and would not the town be authorized to manage and main- * .... tain the property for profit until some other disposition of it might be ,\slk^^ deemed advisabk? Gifts of real estate should stand on no different basis than gifts of money, and certainly the treasury would be law- fully enriched by such benefactions, in either form. The authorities so hold. Dillon on Municipal Corp., Vol. 2, sec. 566, states the principle thus : " Municipal and public corporations may be the objects of public and private bounty. This is reasonable and just. They are, in law, clothed with the power of individuality. They are placed by law under various obligations and duties. Bur- dens of a peculiar character rest upon compact populations residing within restricted and narrow limits, to meet which, property and revenues are absolutely necessary, and, therefore, legacies of personal property, devises of real property, and grants or gifts of either species of property directly to the corporation for its own use and benefit, in- tended to and which have the effect to ease it of its obligations or lighten the burdens of its citizens, are, in the absence of disabling or restraining statutes, valid in law." ^v^-vl-■^^^M^^* There is no such disabling statute in this State, but on the contrary 5^ cities and towns are expressly authorized to receive and carry out the terms of conditional gifts, R. S., c. 4, sec. 80 and 81, and of trust LIBBY V. PORTLAND. 649 funds, R. S., c. 4, sec. 82-85. The necessity of express action on the part of the municipality in fulfilling the conditions of such gifts and trusts rendered necessary the passage of an enabling statute. But ia tbe absence of any prohibiting statute, such municipality in its corpo- rate capacity may receive and hold gifts of either real or personal estate. 2 Abbott Mun. Corp., sec. 720, while questioning the doctrine as an academic proposition admits it to be the law of the decisions. Worcester v. Eato?i, 13 Mass. 371, was a real action based upon a deed of real estate to the town in consideration that the grantor should be supported during her natural life, and the point was raised in defense that the town could not take the premises as grantee. In overruling this defense the court say : "With respect to the capacity of the de- mandants to take by purchase and to hold real estate, we cannot deny to towns such right, since by the immemorial usage of the country, it appears to have been an incident to their corporate powers. As early as the year 1679, provision was made by a colonial act respecting lands, woods, &c. owned by towns in their corporate capacity ; and authority was given to the inhabitants, by vote of the major part, to dispose of the same by grant of lots for settlement, and it is well known that many towns, at this day, are owners of real estate, which they hold in their corporate capacity, other than such as may be neces- sary to erect school-houses and other public buildings upon. Whether the inhabitants of a town can be assessed, to raise money for the purchase of lands, to be used for any other purpose than the exe- cution of some lawful requisition, is a different question. But there seems to be no reason why there may not be a gift or a devise to the inhabitants." This case has been cited with approval in Oliver v. Worcester, 102 Mass. 489, and Commonwealth v. Wilder, 127 Mass. 1, the court affirming in the last case that "there is no provision in the statute for- bidding towns to hold real estate for any particular purposes." New Shoreham v. Ball, 14 R. I. 566, was an action of ejectment, the plaintiff town in proof of title adducing evidence of possession for more than twenty years. The defendant contended that the town could not acquire title by possession for any other than municipal purposes, but the court speaking through Chief Justice Durfee held otherwise in these words: "The cases cited in support of the excep- tions do not go to the point that a town cannot acquire land by posses- sion for other than municipal purposes, but only to the point that it is ultra vires for a town to purchase land for other than such purposes. We think this is quite a different proposition ; for a town cannot purchase land without expending its moneys, and it has no right to expend its moneys, raised by taxation or otherwise for municipal purposes, for other purposes. The acquirement of land by possession does not involve an expenditure any more than does the acquirement of land by deed of gift or by devise ; and it has been decided that a gift or devise of land to a town is good, even though the land be given 650 LIBBY V. PORTLAND. or devised in general terms, and be accepted without any intent to use it directly for municipal purposes. . . . Land so given, even when not wanted for municipal purposes, may be applied by sale or lease to the alleviation of municipal burdens." This same principle has been recognized frequently in the decisions of this court. Marston v, Scarborough, 71 Maine, 267; Camden v. Village Corporation, 77 Maine, 530-535 ; Bulger v. Eden, 82 Maine, 352; Keeley v. Portland, 100 Maine, 260-265. Moreover the charter of the City of Portland expressly provides that the city council " shall have the care and superintendence of city buildings and the custody and management of all city property with power to let or sell what may be legally let or sold ; and to purchase and take, in the name of the cit3\ such real or personal property . . . \ as they may think useful to the public interest." Sec. 4, chap. 248 of Spec. L. 1832, sec. 7, ch. 275, Sp. Laws, 1863. The " custody and management of all city property " must include all to which the city has title, and not simply what is taken or purchased for municipal purposes. \ '• 2. From this proposition of lawful ownership follows another that * ) is equally well settled, viz., That a city or town holding property for ^ > ^ its own profit or gain is liable for negligence in its management to the same extent that business corporations or individuals would be. " When this legal condition exists, the public corporation may, by the exercise of an express or an assumed power, acquire property in this capacity ; and where this is done it will be treated as a private corporation and subject to all the rules of law, regulating rights and liabilities as devolving upon a private individual. ... Its rights and its liabilities are measured strictly by the laws which determine all private rights and liabilities." 2 Abb. Mun. Corp., sec. 720. Woodward v. Boston, 115 Mass. 81, was an action of tort brought to recover damages for the alleged conversion of a building that had been sold at auction by the city to the plaintiff. The court say : "In the sale of this building the city acted, in its capacity as a proprietor in the management of property held for its profit and advantage as a corporation, and as to it, has substantially the same rights and liabili- ties as a private individual." See also Oliver v. Worcester, 102 Mass. 489-500; Hill v. Boston, 122 Mass. 344-359; Haley \. Boston, 191 Mass. 291-292 ; SavannaJi v. CulWis, 38 Ga. 334. The decision in Moidton v. Scarborough, 71 Maine, 267, must rest ■ squarely on this principle. That case came to this court on demurrer to the declaration in which the plaintiff alleged that the defendant town was guilty of negligence in the management of a certain ram owned and controlled by it. Like the case at bar the declaration was barren of any allegation or intimation that the property was used in connection with the farm maintained by the town for the support of the poor. Counsel for defendant in that case sharply contended that " a town cannot own property, except when necessary to aid in the ^ilBBY V. PORTLAND. 651 performance of duties imposed on it by law. For a town to be ' owner and possessor of a ram ' otiierwise than in the line of its statutory duties, is ultra vires." The language of the court in answer to this contention is this : " It is not claimed in support of the demurrer that the declaration is defective ; but it is contended in behalf of the de- fendants, that the town had no legal authority to own and keep a ram; that the act was ultra vires, and that, therefore, the town is not liable. It is admitted, however, by the defendants' counsel, that if the town could legally own and keep the ram for any corporate purpose, for profit and gain, then it rests under the same liability as a person or private corporation for its proper care and control. This is the well settled rule of law." The opinion then discusses the right of a town to maintain a farm for the support of the poor and to stock it for ordinary farm purposes, and holds the declaration good. Later cases have cited this decision with api)roval. Bulger v. Eden, 82 Maine, 352 ; Sibley v. Lumbering Assoc, 93 Maine, 399-402 ; Keeley v. Portland, 100 Maine, 260-265. In this last case, after considering the non-liability of a municipal cor- poration to a private action for neglect to perform, or negligent per- formance of, corporate duties imposed upon it by the legislature, unless such liability to action has been given by statute, the court .adds : " It is true there are limitations to this rule, or conditions to which it is not applicable, the most important perhaps of which is this: A municipal corporation lawfully owning and controlling prop- erty not in the performance of a public duty enforced upon it by law, but wholly or partially for its own profit or gain, is liable for negli- gence in the management of such property to the same extent as business corporations or individuals must be." The municipality as proprietor is not to be confounded with the municipality as legislator or custodian for the public welfare. If a building is maintained solely for a public purpose no liability on the part of the city arises for accidents in connection therewith ; exca- vation in school house yard, Bigelow v. Randolph, 14 Gray, 541 ; un- safe stairway in school building, Sail v. Boston, 122 Mass. 344; defective heating apparatus in school building, Wixon v. Newport, 13 R. I. 454 ; unsafe floor in town house, Eastman v. Meredith, 36 N. H. 284. But when property is used or business is conducted by a city principally for public purposes under the authority of law, but inci- dentally and in part for profit, the city is liable for negligence in management. Thus, for injury sustained in falling through a trap door in a hall let for hire, in a city building, JVorden v. Neiv Bedford, 131 Mass. 23 ; or l>ecause of insufficient lighting of the approaches to such hall. Little v. Holyoke, 177 Mass. 114; where the town engaged in crushing stone and repairing road for a street railway company, Collins V. Greenfield, 1 72 Mass. 78 ; where the town used a stone quarry in part for the public streets and in part for the sale of stone, Duggan v. Peabody, 187 Mass. 349. The liability in the cases last Ur 5^' luuJ^ 652 LIBBY V. PORTLAND. cited is created when public use gives way to use for private gain. Larrabee v. Peabody, 128 Mass. 561. If then a city is liable for accidents in a part of a public building used for private gain it must certainly be liable when the entire building is so used. And the same rule would apply to any other property lawfully held and maintained for private gain whether it be a hall, a business block or a farm house. The cases cited by the defendant do not reach the point under con- sideration. They involved acts clearly ultra vires, as the construction of an embankment across two channels of a stream in Anthony v. Adams, 1 Met. 284 ; the digging of a ditch across the land of a private individual in Steele v. Deering, 79 Maine, 343 ; and the maintenance of a public ferry in Hoggard v. Monroe^ 51 La. Ann. 683, 44 L. R. A. 477. Our conclusion therefore is that since the City of Portland may be " the lawful owner and in the lawful possession, control and manage- ment " of the property in question and may be liable for " negligence in connection with the maintenance thereof for its own emolument, profit or advantage," and since these facts duly alleged in the declaration are admitted to be true by the demurrer, the first count sets forth a cause of action and the demurrer theret o wa s pro perly overruled. Exceptions overruled. HORNER V. COFFEY. 653 CHAPTER VI. REMEDIES. ^ '^ '^ I *^^ HORNER V. COFFEY. ^ '^-^^^^^'^'^'^ifj- 1853. 25 Mississippi, 434.1 ' '~*^ \ ^ J Q Fisher, J. This case is before us upon an appeal from a decree of «. the vice-chancery court at Natchez. ^'^''^"jt The only point presented b^' the record for adjudication is, whether *■ the individual property of the appellee, one of the selectmen and an inhabitant of the town of Grand Gulf, is liable to levy for the purpose of satisfying a juHgment against the president and selectmen of said -^""jU- town in their corporate capacity. feo'V^ The seventh section of the act of the legislature, incorporating the town of Grand Gulf, says : " That the said president and selectmen y^MJV" are constituted a bod^' politic and corporate in fact ; and in the name of ' Q** the town of Grand Gulf, and by that name, they and their successors in office shall have perpetual succession, shall have a common seal, may purchase, hold, and conve}- property' ; and by the name and style afore- said, shall be persons capable in law of suing and being sued in all man- ner of suits or actions, either at law or in equity," — " and may do all other acts incident to bodies corporate." The tenth section of the act, gives the president and selectmen power to raise a revenue for town purposes, by taxing such property as is liable to taxation under the existing laws of this state, " Provided such tax shall not exceed twent3--five cents on every hundred dollars' worth of such property in any one year." Acts of 1833, 9G, 97. These being the only provisions of the chaxteiJaearing upon the question under con- sideration, it will at once appear, that it contains no express provision in regard to the right asserted by the appellant, |o_Xi:sfirt to the indi- vidual property^ ojf^ the^ inhabitants of the town, for the puriH)-i of dis- charging her judgment against the corporation. Hence we must look alone to the common law for the rules to guide us in our decision. With respect to private corporations, such as banks or insurance companies, it is conceded, that no individual responsibility attaches to 1 Statement and ar^unieiits omitted. — Ed. 654 HOKNER V. COFFEY. the members for the corporate debts. " A different rule prevails,'* say some of the authorities, " with regard to the inhabitants of an}- district ; as counties or towns incorporated bj- statute, which come under the head of quasi corporations ; for against them no private action will lie, unless given by statute ; and if a power to sue them is given by statute, each inhabitant is liable to satisfy the judgment." Angell & Ames on Corp. 498, 499. The same rule is more broadly stated by the supreme court of Connecticut, in the case of Beardslet/ v. Smith, 16 Conn. R. 368. The court on that occasion used the following language: "We know, that the relation in w'hich the members of municipal corporations in this State have been supposed to stand in respect to the corporation itself, as well as to its creditors, has elsewhere been considered in some respects peculiar. We have treated t!iem, for some purposes, as parties to corporate proceedings, and their individuality has not been consid- ered as merged in their corporate connection. Though corporators, they have been holden to be parties to suits by or against the corpora- tion, and individually liable for its debts." " Such corporations are of a public and political character ; tliey exercise a portion of the govern- ing power of the State. Statutes impose upon them important public duties. In the performance of these, the}' must contract debts and liabilities, which can only be discliarged by a resort to individuals, either by taxation or execution. Taxation in most cases can only be the result of the voluntary action of the corporation, dependent upon the contin- gent will of a majority of the corporators, and upon their tardy and uncertain action. It affords no security to creditors, because they have no power over it." The same doctrine, in language equall}' strong, has been, in repeated decisions, announced by the supreme court of Massachusetts, and it is, perhaps, now the settled law of all the New England States.'' In view of the numerous authorities, emanating from judicial tribunals as en- lightened as those of the New England States, thus settling the law, we have been induced to give the question involved in the case before us a much more thorough examination than it otherwise would have re- ceived at our hands. This examination has only served to strengthen the opposition which we from the first conceived against the rule, as well as the principles upon which it has been settled by the authorities cited. W^e submit with all proper deference and respect, that neither position assumed b}' the court in the case of Beardsley v. Smith can be sus- tained b}' any principle of the common law, in reference to the inhabi- tants of the town of Grand Gulf. These positions are, first, that the inhabitants of the town are parties to all suits by or against the corpora- tion ; and, secondly, the charter authorizing a suit against the corpora- tion, the inhabilaiits are personally liable to discharge the judgment when obtained. ^ The constitutionality of a statute permitting the judgment-creditor of the town to levy upon the individual property of the inhabitants, was affirmed iu Eames v. b'aya^e, 77 Maine, 212. — Ed. , ,r , _,i i i HORNEIl V. COFFEY. 655_ In regard to the first position, the suit was in this instance against the corporation. Tlie record shows no other defendant. Hence, if the inhabitants were parties to the suit, they became such b\' operation of law. Before the law will make, or even presume a man to be a defend- ant to a suit against another, he must be shown to have been a party to the cause of action upon which it is founded. Were the inhabitants of the town of Grand Gulf parties to the cause of action in this instance? and if so, was it their own act, or that of the corporation, that made them such? If of the corporation, had it power to perform the act? The tenth section of the charter already noticed furnishes a conclusive answer to these several inquiries. It prescribes the manner in which, and the extent to which the corporation must act and maj- go in this respect. The statute prescribing the mode in which an act must be performed, is a negative ui)on all other modes for performing it. Whence it is manifest that the inhabitants of the town were not parties to the cause of action. Thej' could not, therefore, be parties to the suit, for the plain reason that they had violated no legal duty. A suit is but a reraed}- given by law to enable a part}- who has been injured b.v the act or violation of dut}- by another, to recover damages equal to the injury or loss sustained. If the duty never existed, it could not be vio- lated ; and without both its existence and violation, there was no ground for a suit against the inhabitants of the corporation. But there is still another light in which this question may be pre- sented. If the doctrine be true, that the inhabitants of an incorporated town are by operation of law parties to all suits bj' or against such corporation, then it follows, that however just his claim may be, an inhabitant could not, under any circumstances, either maintain a suit or enforce a judgment against the corporation. The moment he appears as a plaintiff on the record, the law makes him a defendant jointl}' with the corporation in the same action. And if he should be so fortunate as to escape a plea in abatement, or a demurrer, if the fact appeared of record, and obtain his judgment, his own property would be as much liable as that of any other inhabitant, to satisfy the execution. This shows to what the doctrine must lead, and, consequent!}', its utter absurdit}-. We will now proceed to consider the second^ question stated in AngelH and Ames, in this language, to wit: " If a power to sue the corpora- tion is given hy statute, each inhabitant is liable to satisfy the judg- ment." This doctrine, in certain cases, is unquestionably correct ; but it has no application to a corporation like that of the town of Grand Gulf, or the city of Bridgeport, spoken of in Bearchley v. Smith. The rule is this ; that whenever either the common law or a statute requires the inhabitants of a particular district of country, such as a county town or hundred in England, to perform certain duties, and they fail in this respect, in consequence of which a statute authorizes a suit by the party injured against the inhabitants, then the judgment in such case may be wholly satisfied out of the property of any one of said inhabitants. This (LvA>v.^-^ 4-A- W^. ^. e 65G HORNEE V. COFFEY. is all according to reason and the principles of the common law. The duty required was, in the first instance, joint and several. Every in- habitant was bound to aid in its performance. All were implicated in its violation, which occasioned the suit. The judgment, in being also joint and several, only partook of the nature of the cause of action upon which it was founded. This was the operation of judgments recovered under the statute of Winton, till its amendment by the act of 43d Eliza- beth, which required such judgments to be satisfied by a tax levied equally upon the inhabitants of the hundred. Here, as we humbly conceive, lies the error into which these learned tribunals have fallen, in not properly discriminating between a duty, in the performance of which the law required every man in the particular district to aid, and for a breach of which all were liable, and a mere power delegated to a corporation for certain specified purposes. The charter, in this instance, only requires the inhabitants of the town to perform such obligations as the corporate authorities may legally im- pose upon them. The only obligation which could be thus imposed, is the tax provided for in the tenth section. AJailure to impose this tax, . or a failure to pay it by the inhabitants, does not make them liable to a judgment against the corporation, for the plain reason tiiat it consti- tuted no cause of action in the first instance. A judgment is only the means provided by. law to enable the creditor to get that to which he was entitled before judgment. A creditor could not maintain a suit against any or all of the inhabitants, merely because they vs^ere liable to pay a certain tax, and had failed to pay it. Upon what principle, then, can he resort to their property, for the purpose of discharging a judgment against the corporation, to which the}^ are not parties, and against whom a recovery could not have been had, even if they had been parties? But it is said, tliat the corporation exercised a portion of the govern- ing power of the State, and, therefore, could exercise its discretion in creating liabilities against the inhabitants of the town. It is true, that the corporation is invested with a subordinate political power, but it is only such as is expressly granted by the charter. To this extent the inhabitants of the town only agreed to submit to the jurisdiction of the corporation, and the additional burdens which it v\4i ^ might impose. Thus acting, it is the creature of law, and can never oppress those under its jurisdiction. Without this restraint its power is arbitrary- and despotic, and may be used by the corporate authorities n ^ 1^, foi' their own selfish purposes. *" The whole case must at last turn upon the question, whether the cor- poration in its action must be confined strictly to the grants contained in the charter, or whether it may exercise an unlimited authority over the inhabitants of the town. If we adhere to the first position, the case for the appellant cannot even be made plausible under the charter. The corporation possessed no authority to make the people of the town par- ties to the cause of action, or to the suit, or to make their property liable to the judgment, except in the shape of a tax. SUTERVISORS OF ROCK ISLAND V. U. S. STATE BANK. 657 It makes no difference, that the appellee is one of the selectmen. He is only one of seven, and could not alone either levy or enforce a tax, under the charter. If he has failed to perform his duty as a corpora-\ V^^^,.^).^ tor, the law gives a remedy against hiin as well as the others by ma7i- > ' damns, to compel tliem to lev}' the tax named. He can only be known in the present controversy as an individual, and his rights as such determined. There is no judgment in the record from which an appeal could be prosecuted. The case will, therefore, be dismissed. ^A^ SUPERVISORS OF ROCK ISLAND v. U. S. ex rel. STATE BANK. 1866. 4 Wallace (U. S.), 435.1 Error to U. S. Circuit Court for Northern District of Illinois. A statute of Illinois, of February 16, 1863, enacts as follows : " The board of supervisors under township organization, in such coun- ties as may be owing debts which their current i-evenue, under existing laws, is not sufficient to pa}', may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent, upon the taxable property of any such count}-, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treas- ury, and to be expended under the direction of the said county court or board of supervisors, as the case may be, in liquidation of such in- debtedness." At March Term, 1863, the relators recovered judgment against the County of Rock Island upon certain overdue coupons. Nothing was paid upon the judgment, and there was no money in the county treasury which could be so applied. -— " The relator subsequently requested the supervisors to collect the requisite amount by taxation, and to give him an order on the county treasury for payment. They declined to do either. He then applied to the court below for a mandamus, compelling the supervisors, at their next regular meeting, to levy a tax of sufficient amount to be applied to pay the judgment, interest, and costs, and ■when collected to apply it accordingly. An alternative writ was issued. The supervisors made a return, averring, inter alia, that they had levied and collected the regular county taxes, and that the same had all been needed and used for the ordinary current expenses of the county. ^ Statement abridged. Arguments omitted. — Ed. 658 SUPEEVISORS OF KOCK ISLAND V. U. S. STATE BANK. The court below disallowed the return, and o rdered U iat a geremp- tory writ should issue, commanding the respondents, at their next mect- ino for levying taxes, to lev}' a tax of not more than one hundred cents on each one hundred dollars' worth of taxable property in the count}-, but of sufficient amount fully to pay the judgment, interest, and costs ; and that they set the same apart as a special fund for that purpose ; and that they pay it over without unnecessary delay to the relator. Cook, for the plaintiffs in error. James Grant, contra. 8\VAYNK, J. [After overruling other objections, and after quoting the statute of Feb. 16, 1863.] The counsel for the respondent insists, with zeal and ability, that the authorit}* thus given involves no duty ; that it depends for its exercise wholly upon the judgment of the super- visors, and that judicial action cannot control the discretion with which the statute has clothed them. We cannot concur in this view of the subject. Great stress is laid b}' the learned counsel upon the language, " may, if deemed advisable" which accompanies the grant of power, and, as he contends, qualifies it to the extent assumed in his argument. In The King v. The Inhabitants of Derhy,^ there was an indict- ment against "divers inhabitants" for refusing to meet and make a rate to pa}' " the constables' tax." The defendants moved to quash the indictment, " because they are not compellable, but the statute only sa^'s that they may, so that they have their election, and no coer- cion shall be." The court held that " mai/^^in the case of a public officer, is tantamount to shall, and if he does not do it, Tie shall be pun- ished upon an information, and though he may be comma nded by a wrlt^tliTB is "bnt an aggravation of his contempt." In The King and Queen v. Barlow,^ there was an indictment upon the same statute, and the same objection was taken. The court said : " When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word sJiall : thus, 23 Hen. VI, says the sheriff m,ay take bail. This is construed he shall, for he is compellable to do so." These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries. In The Mayor of the City of JVeic York ^ and in 3fason v. Fearson^ the words " it shall be lawful" were held also to be mandatory.^ The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us^ 1 Skiuner, 370. 2 2 Salkeld, 609. ^ 3 jiiu^ 014, 4 9 Howard, 248. ^ See The Attorney-General v. Locke, 3 Atkyns, 164; Blackwell's case, 1 Vernon, 152; Dwarris on Stat. 712; Malcom v. Rogers, 5 Cowen, 188; Newhurg Turnpike Co. fc\ Miller, 5 Johnson's Chancery, 113; Justices of Clark County Court v. The P. & W. & K. R. T. Co., 11 B. Monroe, 143; Minner et al. v. The Merchants' Bank, 1 Peters, 64 ; Com. v. Johnson, 2 Binney, 275 ; Virginia v. The Justices, 2 Virginia Cases, 9; Ohio ex rel. v. The Governor, 5 Ohio State, 53; jCo^ f. The Ci ty CouDc il of Lyons, 17 Iowa, I. VON HOFFMAN V. CITY OF QUINCY. G59 or in equivalent language — whenever the public interest or individual rights call for its exercise — the language used, though permissive in^ form, is hi fact peremptory, ^yhat they are empowered to do for a" fliird person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would other- wise be remediless. In all such eases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose " a posi- tive and absolute duty." The line which separates this class of cases from those which involve the exercise of a discretion, judicial in its nature, which courts cannot control, is too obvious to require remark. This case clearly does not fall within the latter categor}'.^ The Circuit Court properly awarded a peremptory writ of mandamus. We find no error in the record. The judgment below is H Affirmed, -^^ — W«» O^tJI y^4-^ 1 The People v. Sup. Court, 5 Wendell, 125; The Teople Wendell, 289; The People v. Vermilyea, 7 Cowen, 393; Hull John. 260. 2 Statement abridged. V. Sup. Court, 10 V. Supervisors, 19 Arguments omitted. Only part of the opinion is gireo. 3Lir\^ 660 VON HOFFMAN V. CITY OF QUINCY. V^ 5^ vWv that purpose. The relator sued the city upon them in the court below and at the June Term, 1863, recovered a judgment for $22,206.69 and costs. An execution was issued and returned unsatisfied. The judgment was unpaid. The city still neglected and refused to levy the requisite tax. He therefore prayed that a writ of matidamus be issued, commanding the city an d its proper officers to pay over to hi m any money in their hands otherwise unappropriated, not exceeding tGe amount of the judgment, interest, and costs ;• and, .for want of such- funds, commanding them to levy the special tax as required by the acts of the legisTature before referred to, sufficient to satisfy the judgment, interest, and costs, and to pa}' over to him the proceeds. The city filed an answer relying on the actj of Feb . 14, 18 63, which contains the following provisions : " Section 4. Tlie city council of said citv shall have power to levy and collect annuallj- taxes on real and personal property within the limits of said cit}' as follows : [After providing for taxation for certain special purposes;] On all real and personal property within the limits of said city, to pay the debts and meet the general expenses of said city, iiot exceeding fifty cents on each one hundred dollars per annum on the annual assessed value thereof. -■—.•>-. ^l_ ~^^^ecIion 5. All laws and parts of laws, other than the provisions hereof, touching the levy or collection of taxes on property within said city, except those regulating such collection, and all laws conflicting herewith are herebj' repealed ; . . ." The answer averred that the full amount of the tax authorized by this act had been assessed, and was in the process of collection ; that the power of the city in this respect has been exhausted: "and that the said fifty cents on the one hundred dollars, when collected, will not be sufficient to pay the current expenses of the city for the 3'ear 1864, and the debts of the said cit}-." The relator demurred to the answer, and judgment was given against him. McKinnon and Merrick, for plaintiff in error. Gushing and Ewing, Jr., coritra. SwAYNE J. . . . The Constitution of the United States declares (Art. I. s. 10), that " po State shall pass ajiy bill of attainder, ex post facto law, or law impairing the obligation of co ntracts^ ' It is also settled that the laws w hich subsist at the time and place of tlie making of a contract, and where it is to" be performed, enter into'* nnd form :i part of it, as if they were expressly referred to or incorpo-, r ated in its terms. This principle embraces alike those whicli affect its validity, construction, discharge, and enforcement. Illustrations of this proposition are found, in the obligation of the debtor to pay interest after the maturit}' of the debt, where the contract is silent ; in the liability' of the drawer of a protested bill to pay exchange and damages, and in the right of the drawer and indorser to require proof ^'n <=^ ^-)5 ^-^flv^ Jlit^ 'c-jbL^^v-^^ J?^_ (t£C /t2J^t> V.j3 VON HOFFMAN V. CITY OF QUINGY. 661 of demand and notice. These are as much incidents and conditions of the contract as if they rested upon the basis of a distinct agreement.^ • •*••••• Nothing can be more material to the obligation than the means of enforcement. Without the remed_y the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfil- ment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed hy the Constitution against invasion. It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured b}* the contract is therebj- impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifjing the remedy, impair substantial rights. Everj' case must be determined upon its own circumstances. Whenever the result last mentioned is produced the act is within the prohibition of the Consti- tution, and to that extent void.^ If these doctrines were res integroe the consistency' and soundness of the reasoning which maintains a distinction between the contract and the remed}' — or, to speak more accuratel}', between the remedy and the other parts of the contract — might perhaps well be doubted.^ But the}' rest in this court upon a foundation of authovit}' too firm to be shaken ; and the}- are supported by such an array of judicial names that it is hard for the mind not to feel constrained to beUeve they are correct. The doctrine upon the subject established by the latest ad- judications of this court render the distinction one rather of form than substance. When the bonds in question were issued there were laws in force which authorized and required the collection of taxes sufficient in amount to meet the interest, as it accrued from time to time, upon the entire debt. But for the act of the 14th of February, 1863, there would be no difficulty in enforcing them. The amount permitted to be collected by that act will be insufficient ; and it is not certain that any- thing will be yielded applicable to that object. To the extent of the deficiency the obligation of the contract will be impaired, and if there be nothing applicable, it may be regarded as annulled. A right with- out a remed\' is as if it were not. For ever}' beneficial purpose it may be said not to exist. 1 Green v. Biddle, 8 Wheaton, 92; Bronson v. Kinzie, 1 Howard, 319; McCracken V. Hayward, 2 Id. 612; People v. Bond, 10 California, 570; Ogdeu v. Saunders, 12 Wheaton, 231. 2 Bronson v. Kinzie, 1 Howard, 311 ; McCracken v. Hayward, 2 Id. 608. 8 1 Kent's Commentaries, 456 ; Sedgwick on Stat, and Cons. Law, 652 ; Mr Justice Washington's dissenting opinion in Mason v. Haue, 12 Wheaton. 379. A-, A i>^ >;-..>. 662 MAECHAND V. CITY OF NEW ORLEANS. \ \ ercising It is well settled that a St ate ma}' disable itself by contract from ex« its taxing power in particular casgaSI It is equally clear Ithat whore a State has autliorized a munici[)al corporation to contract and tS'^exercise the power of local taxation to the extent necessarj' to ineet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The State and the corporation, in such cases, are equally bound. The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute ; and neither the State nor the corporation can any more impair the obligation of the contract in this way than in any other. ^ The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it aifects these bonds, a nullity. It i s the du t}' of t he cltj' to impose and collect the taxes in all respects as if ttrat acTTtiiT^T Cr^been passed. A different result would leave nothing of the contract, but an abstract right — of no practical value — and render the protection of the Constitution a shadow and a delusion. The Circuit Court erred in overruling the application for a manda- mus. The judgment of that court is reversed, and the cause will be remanded, with instructions to proceed Jti coiiformity with this opinion. ..a:x.-^X. CU ^^^^Uw-j? ^ ^bzAri JCX^ nO-i. y^JJU yu A ' STATE EX REL. MARCHAND V. ^ CITY OF NEW ORLEANS. U/C» I ^ ^'^"'-^X T^^'t^'^'**^85- ,37 Louisiana Annual, 13.3 i-'^SV*'^"^ Appeal from the Civil District Court for the Parish of Orleans- Mo7iroe, J. Slanc and Butler., for the relators and appellees. C. F. Buck, City Attorney, contra. Fenner, J. In 1 872, the Legislature of the State passed Act No. 60 of that year, by which it established the Luzenberg Hospital in this eit}' as the exclusive hospital for small-pox and further provided that " all indigent cases of small-pox, or other diseases reported contagious, in want of or making application for hospital aid or care, shall be sent to the hospital designated in this act, at the expense of the city of New Orleans, as usual and at the usual ^^er diem." Acting under this direction, the city entered into a contract with Dr. J T^«r Anfoux then in charge of said hospital by which he was to receive and treat such patients at a stipulated compensation of thirtA'-five dollars r%*^ 1 New Jersey v. Wilson, 7 Cranch, 166; Dodge v. Woolsey, 18 Howard, 331; " A Piqna Branch v. Knoop, 16 Id. 331. t*^ ' ^ People V. Bell, 10 California, 570; Dominic v. Sayre, 3 Sandford, bhb. 'L,,^ ^^ • Arguments omitted. — Ed. ^^9* H» ^ ( MARCHAND V. CITY OF NEW ORLEANS. 683 per case. During the 3'ear 1873 he received and treated a large num- ber of cases, for which the amount due b}' the city under the contract was S19,670. In 1878 suit was brought and judgment recovered against the city on the foregoing cause of action and for the amount above stated, with interest and costs. The judgment thus rendered was duly registered July 5th, 1878, pur- suant to the provisions of Act No. 5, of 1870. This registration has produced no results ; the judgment has not been paid ; and the evi- dence makes it manifest tliat under tlie city's construction of its duties under the Act No. 5, and under its modes of execution thereof, man3- years must elapse before an}' payment will be made upon this judgment. The reason why this debt remains, and promises to remain, unpaid, is that the city construes her power and dut}' of taxation to be gov- erned and limited by the provision of the Constitution of 1879 t o a tax often mills on the dollar, in so far as provision for such judgments is concerned, and that the requirements for her alimony leave, out of the receipts from this tax, nothing or little to be appropriated to the satis- faction of judgments. To this the creditor answers that he is a creditor b}- contract ; that, at the date of his contract, the cit}' possessed, b}' law, a power of tax- .■^.tion for "current city expenses exclusive of interest and schools" only limited to one and one-quarter 7:)er cent.; that quoad this contract obligation and so far as necessary for its satisfaction, this power of tax- ation still exists unaffected by subsequent legislative or constitutional provisions ; that, under the Act No. 5 of 1870, it is the duty of the city authorities to provide for the payment of his registered judgment by setting apart in the annual budget a sum for that purpose, and that, in order to execute this duty, the correlative duty is imposed of exercis- ing the power of taxation vested in the city by law to the extent neces- sary to raise the means to make such provision. In pursuance of these views, the present suit was instituted for a mandamus directing the city authorities to execute and perform the duties imposed by the Act No. o of 1870; and, in accordance there- with, to set apart in the next annual budget sufficient money to pay such judgment ; and further directing them to provide in said budget, by taxation for current city expenses, in excess of the amount allowed by law for the alimony of the city but not in exc^s of on e and one - quRvter per cent., the means of revenue necessary to pa}' relator's said judgment, and so to do, in all succeeding annual budgets, until the same be paid. From a judgment making the mandamus peremptory, the city has appealed. We lay down the following propositions of fact and law viz. : 1st. The judgment was founded on a contract entered into in 1872. 2d. At the date of the contract, the city possessed a power of taxa- y 564 MAKCHAXD V. CITY OF NEW ORLEANS. tion for general expenses " exclusiv e of interest and schools," of twelve and one-half mills 7Per annum. See Act No. 73 of 1872, Sec. 15. ^d. Under the consistent jurisprudence of the Supreme Court of the United States and of this Court, the power of taxation existing at the date of the contract is read into the contract and continues to exist, so far as necessary for the enforcement of the obligations of the contract, irrespective of an}' subsequent legislation or constitutional enactments restricting the power of taxation. State ex rel. Moore vs. Cit}-, 32 Ann. ; State ex rel. Dillon vs. City, 34 Ann. 477 ; State ex rel. Carriere vs. City, 36 Ann. ; VonHoffmanj::sJ^^ Wall. 535 ; Wolff vs. New Orleans, 103 U.^ST^orTNdson vs. St. Martin, 111 U. S. 720. 4th. This Court has long since held that the prohibitions against the issuance of the writ of mandamus against officers of the city of New Orleans contained in Act No. 5 of 1870, apply only to the cases therein speciall}' designated and that, for the performance of the duties imposed b}- that act itself, the writ of mandamus was a proper remedy. State ex rel. Carondelet vs. New Orleans, 30 Ann. 129. 5th. In the same case it was held that, under Act No. 5 of 1870, it is the " plain dutj' " of the city authorities " to provide for the pa}-- ment of registered judgments in the only mode in which judgment creditors of the city are permitted to collect their judgments. This, requires the action of the Ma3'or and Administrators, in their aggre- gate capacity as a municipal government ; the adoption of the annual budget ; the lev}' of the necessary taxes ; and a setting apart of a sufficient amount to paj" tliis and other registered judgments. * * The duty of the city to make this provision is not discretionar}' as to time or manner. The law imperatively requires that it shall be in the next annual budget, and b}' setting apart, appropriating a sufficient amount out of the annual revenues." State ex rel. Carondelet vs. New Orleans, 30 Ann. 129. This c^iity. we h ave held, however, is subordinate to the higher and absolute duty of first providing, out of the revenues applicable to tUat"'"" purpose, for the necessar}- alimou}' or support of the city. State ex rel. Moore vs. City ; Saloy vs. Cit}-. 6th. In the DeLeon case we held that the dnt}' to appropriate and set apart money in the annual budget for particular purposes " in- volved necessarily the duty to levy such tax (within the power of tax- ation possessed, at the time, by the corporation) as will render possible the performance of the duty." State ex rel. DeLeon vs. City, 34 Ann., p. 477. 7th. The re lator herein claims a nd is entitled to no special tax. He is siraph' entitled to paymentout of th£.rev.enues"'ai'is'Tng from tb'e col- lection of taxes provided for the general expenses of the city. ITe simply asks that the power of taxation conferred by law for that pur- pose shall be exercised to the extent necess^j}' to furnish the means out of which his judgment may be paid. So far as relator's contract and judgment are concerned, we have MARCHAND V. CITY OF NEW ORLEANS. 065 already shown that the cit}' possesses a power of taxation for general purposes of twelve and one-half mills. She has, heretofore, exercised, and proposes hereafter to exercise this power only to the extent of ten mills on the dollar, and, as the revenues arising from this tax are applicable to, and required for, the necessary alimon}- of the cit}', tliey leave, as we have said, little or nothing, which can be appropriated for the payment of registered judgments. From the foregoing statement, it appears that, to the extent neces- sary for the provision for payment of phiintiff's judgment, the city pos- sesses a residuary power of taxation of two and one-half mills, noiF exercised and which she refuses to exercise, the revenues from which "Would, unrler no circumstances, be applicable to the city's alimony, (jr, mdeed, to anj- other purpose than that of satisfying relator's judgmenj and others standing in like case with it. It would be, indeed, an anomah-, if the city could escape from or postpone lier clear dut}', to provide for the satisfaction of such judgments, by simpl}- abstaining from the exercise of lawful powers of taxation to an extent necessary to provide the means of paying them. Such an anomaly could never be sanctioned b}- any court of justice, since it would render the pay- ment of debts no longer obligator}' upon municipal corporations, but uependent purely upon their will and caprice. From the foregoing considerations it would conclusiveh* appear that relators are entitled to the relief which the}- seek, unless there is some- thing in the nature of their debt, or in the law existing at the date of their contract, which debars it. Legis lation subsequent to the contract has, and can have, no. effect jjjyiOTi_^h£ rights a nd obligations j irj^siiig fronTthe contract. The learned counsel for the city propounds two special defenses based upon the nature of plaintiff's debt and the law in existence at the date of the contract. 1st. He contends that, from the very nature and constitution of mu- nicipal corporations, they are incapable of creating or contracting a debt for current expenses, in excess of the revenues arising from taxa- tion, within the limitations imposed by law, for tlie year in which the debt was created ; and that such debt, whether created by contract or not, can only demand satisfaction out of the revenues of that year. If such had been the law of Louisiana, as applicable to the city of New Orleans, in 1873, it is passing strange that, in 1874, it should have been deemed necessary to pass a constitutional amendment estab- lishing the very principles which, it is contended, already existed and were inherent in the ver}' nature of the corporation. We have rigidly enforced the constitutional amendment of 1874, as applicable to debts created after its passage. Taxpayers vs. New Or- leans, 33 Ann. 568. But when we are asked to recognize the principles established by that amendment as existing independent of it and prior to its passage, and as applicable to debts contracted prior thereto, we must pause. C66 MARCHAND V. CITY OF NEW ORLEANS. The proposition is supported by no authority' and b}' no well founded reason. It is contradicted by the entire financial administration of the cit}' prior to 1874, by the uniform current of judicial interpretation which has constantly rendered and enforced judgments upon such obli- gations without restriction to the revenues of particular years, and by the terms and spirit of the Act No. 5 of 1870 itself. For what would be the sense of requiring the city authorities to pro- vide in coming budgets for registered judgments, without distinction, if such judgments could onl}' seek satisfaction out of the revenues of some antecedent year in which the debts were contracted? We dis- miss the proposition as utterly' untenable. Nor is there anything in the nature of tlie debt which prevents tliis contract from being protected from impairment under the Constitution of the United States. The protection afforded by that instrument is not restricted to bonds or any particular forms of contract. It covers all contracts. Every lawful contract of a municipal corporation is en- titled to satisfaction by the exercise of the power of taxation possessed by the corporation at its date, to the extent necessar}', and to invoke the continued and repeated exercise of that power until the debt is satisfied. Such is the clear and unequivocal doctrine announ(!ed by the Supreme Court of the United States uniform!}' and specially in the very recent case of Nelson vs. St. Martin, 111 U. S. 716. We are not called upon to consider the rights of other judgment creditors whose judgments rank that of relators in order of registry. The record does not advise us whether their judgments are based on contracts or whether they rest upon causes of action arising prior to the constitutional amendment of 1874. It may be that none of them can compete with relators in the relief souglit. But, at all events_^ the unexhausted power of taxation is ample to satisfy, all ; and if the}' are eTTtitled to like rights with relators and liave neglected to exercise them, there is no reason wh}' relators should suffer. Let it be well understood that the duty to levy an extra tax is not obligator}' under this decree. The citv may satisfy the debt out of its revenues under the existing rate of taxation. But the insufficiency of such revenues will be no excuse for not satisfying the judgment and. If necessai'v, and onli/ if necessai'.v, must provision be made by a tax for general expenses above ten mills and within twelve and one-half mills. '"Judgment affirmed. \ .^ \CxJc ., Rehearing refused. v Bermudez, C. J., and PocHi;, J., take no part in this opinion and decree. REES V. CITY OF WATEIiTOWN. 667 REES V. CITY OF WATERTO'VVN-.'^^^^-A-«J. &'*^y>-«-.*|* road Company, and by the company sold for its benefit, brought suit '>-Ja.P^ in the Circuit Court of the United States for the District of Wiscon- ^CA.a,^,^ sin, against the city, and, in 1867, recovered two judgments for about j^-^ -U S $10,000. - n •v.-J In the summer of 1868 he issued executions upon the two judgments ^ . thus obtained, which were returned wholly unsatisfied. Ci^NMh*^ In November of the same year he procured from the United States Circuit Court a peremptory writ of mandamus, directing the city of Watertown to levy and collect a tax upon the taxable property of the •> |V.-*^ JtL served, was one. Various proceedings were had and various excuses (1 i^^^ made, the whole resulting in an order that the aldermen should at once levy and collect the tax ; but before the order could be served on Holger, he resigned his oflflce, and again the board was left without a quorum. Nothing was accomplished by their effort in aid of the plain- tiff, but fines were imposed upon the recusant aldermen, which were ordered to be applied in discharge of the costs of the proceedings. In October, 1870, the plaintiff obtained a third writ of mandamus, which resulted as the former ones had done, and by the same means, on the part of the officers of the cit}'. A special election was ordered to be held to fill the vacancies of the aldermen so resigning, but no votes were cast, except three in one ward, and the person for whom they were cast refused to qaalif^y. The general truth of these facts was not denied. No part of the debt was ever paid. ^ Statement abridged. Argument and part of opinion omitted. — Ed. 668 BEES V. CITY OF WATERTOWN. In this state of things, the district of Wisconsin having been divided Ittto an eastern and a western district, and the cit}' of Watertown being in the latter, Rees brought suit in the latter district on his judgments obtained in the general district before the division, and got a new judgment upon them for $11,066. He now filed a biU in the said western district, setting forth the above facts, the general truth of which was not denied ; that the debt due to him had never been paid, and that, with an accumulation of fourteen 3'ears' interest, the same remained unpaid, and that all his efforts to obtain satisfaction of his judgments had failed. All this was equall}' undenied. The bill set forth also certain acts of the legislature of Wisconsin, which, it was alleged, were intended to aid the defendant in evading the pavment of its debts, and which, it seemed sufficiently plain, had had that effect, whatever might have been the intent of the legislature passing them. The bill alleging that the corporate authorities were trustees for the benefit of the creditors of the city, and that the property of the citizens was a trust fund for the payment of its debts, and that it was the duty of the court to lay hold of such property and cause it to be justly applied, now prayed that the court would subject the taxable property of the city to the paj-ment of the judgments. It asked specifically that a decree might be made, subjecting the taxable property of the citizens to the payment of the complainant's judgments, and that the marshal of the district might be empowered to seize and sell so much of it as might be necessary', and to pay over to him the proceeds of such sale. The charter, of the city contains the following provision : " Nor shall any real or personal property of any inhabitant of said cit3% or any individual or corporation, be levied upon or sold by virtue of any execution issued to satisfy or collect any debt, obligation or contract of said city." The judges holding the Circuit Court were divided in opinion upon the questions argued before them. The bill was dismissed. The case was now here on certificate of division and appeal, the error assigned being that the court dismissed the bill, when it ought to have given the relief prayed for. H. W. and B. W. Tenney {S. U. Pinney with them), for the credi- tor appellant. D. Hall (M. IT. Carpenter and IT. Z. Palmer with him), contra. Hunt, J. . . . We are of the opinion that thi s court_ Jjaa not the power to direct a tax to be levied for the payment of these judgmt-iits. TKis power to impose burdens and raise money is the highest attribute 5r^80vereignty, and is exercised, first, to raise money for public pur- I poses only ; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciarj'. Especially is It beyond the power of the Federal judiciary to assume the place REES V. CITY OF WATERTOWN. G69 of a State in the exercise of this authority at once so delicate and so important. The question is not entirely new in this court. [After referring to authorities upon the power of the court to direct the levy of a tax under the circumstances of this case.] The plaintiff insists that the court may accomplish the same result under a different name, that it has jurisdiction of the persons and of the property, and ma}' subject the property of the citizens to the pa}-- ment of the plaintiff's debt without the intervention of State taxing oflScers, and without regard to tax laws. His theor}- is that the courti Y Vvt^ ^ should make a decree subjecting the individual propertj- of the citizens I (JLft-tA-C«*- of Watertown to the payment of the plaintifTs judgment ; direct the 'YM-^W*^^ marshal to make a list thereof from the assessment rolls or from such other sources of information as he may obtain ; report the same to the court, where any objections should be heard ; that the amount of the debt should be apportioned upon the several pieces of propert}' owned by individual citizens ; that the marshal should be directed to collect such apportioned amount from such persons, or in default thereof to sell the propert3^ As a part of this theory', the plaintiff argues that the court has authority' to direct the amount of the judgment to be wholly made from the property belonging to any inhabitant of the cit^', leaving the citizens to settle the equities between themselves. This theory has many difficulties to encounter. In seeking to obtain for the plaintiff his just rights we must be careful not to invade the rights of others. If an inhabitant of the city of Watertown should own a block of buildings of the value of $20,000, upon no principle of law could the whole of the plaintiff"'s debt be collected from that prop- erty. Upon the assumption that individual property is liable for the payment of the corporate debts of the municipality, it is only so liable for its proportionate amount. The inhabitants are not joint and sev- eral debtors with the corporation, nor does their property stand in that relation to the corporation or to the creditor. This is not the theory of law, even in regard to taxation. The block of building;s we haye^ supposed is liable to taxation only upon its value in proportion to the vaTue of the entire property, to be asc!;rtained by assessment, and when the proportion is ascertained and paid, it is no longer or further liable. Tt is discharged. The residue of the tax is to be obtained from other sources. There may be repeated taxes and assessments to make up delinquencies, but the principle and the general rule of law are as we have stated. In relation to the corporation before us, this objection to the liability of individual property for the payment of a corporate debt is presented in a specific form. It is of a statutory character. The remedies for the collection of a debt are essential parts of the contract of indebtedness, and those in existence at the time it is in- curred must be substantially preserved to the creditor. Thus a statute prohibiting the exercise of its taxing power by the city to raise money 670 REES V. CITY OF WATEETOWN. \ for the payment of these bonds would be void.^ But it is otherwise of statutes which are in existence at the time the debt is contracted. Of these the creditor must take notice, and if all t he remedies are pre- served to him which were in existence when his debt was contracted^ lie has no cause of complaint.^ -— — By section nine of the defendant's charter it is enacted as follows: "Nor shall an}- real or personal propertj' of any inhabitant of said city, or an}' individual or corporation, be levied upon or sold by virtue of any execution issued to satisfy or collect any debt, obligation, or contract of said city." If the power of taxation is conceded not to be applicable, and the power of the court is invoked to collect the mone}' as upon an exe- cution to satisfy- a contract or obligation of the city, this section is directly applicable and forbids the proceeding. The process or order asked for is in the nature of an execution ; the property proposed to be sold is that of an inhabitant of the cit}' ; the purpose to which it is to be applied is the satisfaction of a debt of the city. The proposed remedy is in direct violation of a statute in existence when the debt jwas incurred, and made known to the creditor with the same solemnit}' as the statute which gave power to contract the debt. All laws in existence when the contract is made are necessarily referred to in it and form a part of the measure of the obligation of the one party, and of the right acquired by the other. ^ But independent!}^ of this statute, upon the general principles of law and of equity jurisprudence, we are of opinion that we cannot grant the relief asked for. The plaintiff invokes the aid of the principle that all legal remedies having failed, the court of chancery must give him a remedy ; that there is a wrong which cannot be righted elsewhere, and hence the right must be sustained in chancery. The difficulty arises from too broad an application of a general principle. The great ad- vantage possessed by the court of chancery is not so much in its en- larged jurisdiction as in the extent and adaptability of its remedial powers. Generally its jurisdiction is as well defined and limited as is that of a court of law. It cannot exercise jurisdiction when there is an adequate and complete remedy at law. It cannot assume control over that large class of obligations called imperfect obligations, resting upon conscience and moral duty only, unconnected with legal obliga- tions. Judge Story says,* " There are cases of fraud, of accident, and of trust which neither courts of law nor of equity presume to reliei'e or to mitigate," of which he cites many instances. Lord Talbot says,® "There are cases, indeed, in which a court of equity gives remedy where the law gives none, but where a particular remedy is given bj 1 Van Hoffman v. City of Quincy, 4 Wallace, 535. 2 Cooley, Constitutional Limitations, 285, 287. ' Cooley, Constitutional Limitations, 285. * 1 P>quity Jurisprudence, § 61. * Heard v. Stanford, Cases Tempore Talbot, 174. EEES V. CITY OF WATERTOWN. G71 law, and that remedy bounded and circumscribed b}' particular iiilos, it would be very improper for this court to take it up where the law leaves it, and extend it further than the law allows." Generally its jurisdiction depends upon legal obligations, and its decrees can only enforce remedies to the extent and in the mode by law established. With the subjects of fraud, trust, or accident, when properly before it, it can deal more completely than can a court of law. These subjects, however, may arise in courts of law, and there be well disposed of.^ A court of equity cannot, by avowing that there is a right but no remed}' knovvh to The'Iaw, create a remedy in violation of law, or even without the authority of law. It acts upon establ ished principles not bnl}-, but through established channels. Thus, assume that^ the plaintiff is entitled to the payment of his judgment, and that the defendant neglects its duty in refusing to raise the amount b}' taxation, it does not follow that this court may order the amount to be made from the private estate of one of its citizens. This summary- proceeding would involve a violation of the rights of the latter. He has never been heard in court. He has had no opportunity to establish a defence to the debt itself, or if the judgment is valid, to show that his proi)erty is not liable to its payment. It is well settled that legislative exemptions from taxation are valid, that such exemptions ma}' be perpetual in their duration, and that they are in some cases be3'ond legislative interfer- ence. The proceeding supposed would violate that fundamental prin- ciple contained in chapter twenty-ninth of Magna Charta and embodied in the Constitution of the United States, that no man shall be deprived of his propert}- without due process of law — that is, he must be served with notice of the proceeding, and have a da}' in court to make his defence.^ "Due process of law (it is said) undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights." ' In the New England States it is held that a judgment obtained against a town may be levied upon and made out of the propert}- of an}' inhabitant of the town. The suit in those States is brought in form against the in- habitants of the town, naming it ; the individual inhabitants, it is said, may and do appear and defend the suit, and hence it is held that the individual inhabitants have their day in court, are each bound by the judgment, and that it may be collected from the property of any one of them.* This is local law peculiar to New England. It is not the law of this country generally, or of England.^ It has never been held to be the law in New York, in New Jersey, in Pennsylvania, nor, as stated by Mr. Cooley, in any of the Western States.® So far as it 1 1 Story's Equity Jurisprudence, § 60. 2 Westervelt v. Gregg, 12 New York, 209. ^ jy, * See the cases collected in Cooley's Constitutional Limitations, 240-245. 6 Russel v. Men of Devon 2 Term, 667. * See Emeric v Oilman, 10 California, 408, where all the cases are collected. 672 REES V. CITY OF WATERTOWN. rests upon the rule that these municipalities have no common fund, and that no other mode exists by whicii demands against them can be enforced, he says that it cannot be considered as applicable to tiiose States where provision is made for compulsory taxation to satisfy judgments against a town or city.^ The general principle of law to which we have adverted is not dis- turbed by these references. It is applicable to the case before us. Whether, in fact, the individual has a defence to the debt, or by way of exemption, or is without defence, is not important. To assume tiiat he has none, and, therefore, that he is entitled to no day in court, is to assume against him the very point he maj' wish to contest. Again, in tlie case of Emeric v. Gilman, before cited, it is said : "The inhabitants of a county are constantly changing ; those who con- tributed to the debt may be non-residents upon the recovery of the judgment or the levy of the execution. Those who opposed the crea- tion of the liability may be subjected to its pa3'raent, while those, by whose fault the burden has been imposed, may be entirely relieved of responsibility. . . . To enforce this right against the inhabitants of a count}' would lead to such a multiplicity of suits as to render the right valueless." We do not perceive, if the doctrine contended for is cor- rect, why the money might not be entireh' made from property owned b}' the creditor himself, if he should happen to own propert}' within the limits of the corporation, of sufficient value for that purpose. The difficulty and the embarrassment arising from an apportionment or contribution among those bound to make the payment we do not regard as a serious objection. Contribution and apportionment are recognized heads of equity jurisdiction, and if it be assumed that pro- cess could issue directl}' against the citizens to collect the debt of the city, a court of equity could make the apportionment more convenient!}^ than could a court of iaw.'^ We apprehend, also, that there is some confusion in the plaintiff's proposition, upon which the present jurisdiction is claimed. It is con- ceded, and the authorities are too abundant to admit a question, that there is no chancery jurisdiction where there is an adequate remedy at law. Xhejwrit of mandamus is, no doubt, the regular remedy in a case like the present, and ordinarily it is adequate and its results are satis- factory. The plaintiff alleges, however, in the present case, that he has issued such a writ on three different occasions ; that, by means of the aid afforded b}^ the legislature and by the devices and contrivances set forth in the bill, the writs have been fruitless ; that, in fact, the}' aff'ord him no remedy. The remedy is in law and in theor}' adequate and perfect. The difficulty is in its execution only. The want of a remed}' and the inability to obtain the fruits of a remed}^ are quite dis- tinct, and yet they are confounded in the present proceeding. To illustrate : the writ of habere facias possessionem is the established 1 Cooley's Constitutional Limitations, 246. 2 1 Story's Equity Jurisprudeuce, § 470 and onwards. THOMPSON V. ALLEN COUNTY. 673 remedy to obtain the fruits of a judgment for the plaintiff in ejectment. It is a full, adequate, and complete remedy. Not many years since there existed in Central New York combinations of settlers and tenants disguised as Indians, and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some 3-ears no landlord could gain possession of his land. There was a perfect remedy at law, but through fraud, violence, or crime its exe- cution was prevented. It will hardly be argued that this state of things gave authority to invoke the extraordinary aid of a court of chancery. The enforcementof the legal remedies was tc mporarjly suspended b}^ means of iTIegal violence, but the remedies remained as before. It was the case of a miniature revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. Tlie legal remedy is adequate and complete, and time and the law must perfect its execution. Entertaining the opinion that the plaintiff has been unreasonably obstructed in the pursuit of his legal remedies, we should be quite will- ing to give him the aid requested if the law permitted it. We cannot, however, find authority for so doing, and we acquiesce in the conclusion of the court below that the bill must be dismissed. Judgment affirmed. Mr. Justice Clifford, with whom concurred Mr. Justice Swatne, ,0^ *" .^ dissenting : wrJTr^ . I dissent from the opinion of the court in this case upon the ground ^*a1J that equity will never suffer a trust to be defeated by the refusal of the trustee to administer tlie fund, or on account of the misconduct of the ^'''^^ ^ trustee, and also because the effect of the decree in the court below, if Vv4^a- affirmed by this court, will be to give judicial sanction to a fraudulent JUv>(r( repudiation of an honest debt. For which reasons, as it seems to me, •^^^w^ the decree of the subordinate court should be reversed. ^^ A Arv>,*€ha >vi^ *vv* *rvs^ *jc/%>v. THOMPSON V. ALLEN COUNTY et als. 6|.vH>Ji>X- »-o /v 1885. 115 C/. 5. 550.1 g^ ^jJUJuJv / oA^ Appeal from U. S. Circuit Court for District of Kentucky. J^ ^^C3> ^W^-^^lt^ 674 THOMPSON V. ALLEN COUNTY. sum sufficient to pay the interest on such bonds as it accrues, togethei with the costs of collecting the same." The act, as amended, also required the County Court to appoint a special collector to collect all taxes levied under it. The U. S. Circuit Court, at the instance of the present plaintiffs, issued a writ of mandamus to the justices of the Allen County Court, under which they levi^ a tax to pay the plain- tiffs judgment. They also elected one Stork collector of said tax levy, but he refused to give bond or to accept the office. The Count}' Court in good faith and diligently endeavored to find a proper person to act as collector, but no proper person could be found who would undertake that office. The parties now agree that the plaintiff is without remedy for the collection of his debt, except through the aid of the U. S. Cir- cuit Court in the appointment of a receiver, as prayed for in the bill, or other appropriate order of the court. The bill in equity gives the names of about thirty of the principal tax-payers of the county, with the value of the assessed property of each, and the amount of tax due from him under said lev}^ alleging that the tax-papers were too numerous to be sued, and praying that these might be sued as defendants representing all others in like cir- cumstances, and be required, with the count}', to answer the bill. The prayer of the bill for relief was, that, inasmuch as the complain- ^^SJ»' ant was without remed}' at law, the court sitting in chancery would appoint a receiver, who should collect these taxes, and that the money arising therefrom be from time to time paid over in satisfaction of "plaintiff's judgments, and that the several tax-payers of said count}', made defendants, be required to pay into court, with like effect the sums due by them as alleged in the bill. The justices in the Circuit Court were divided in opinion. In ac- cordance with the view of the presiding judge, the bill was dismissed. (13 Federal Reporter, 97.) An appeal was taken. Charles Eginton^ ( TF. 0. jDoc?c? with him,) for appellant. John Mason Brown, {Alexander P. Humphrey and George M. Davie, with him,) for appellees. Miller, J. . . . The cases in which it has been held that a court of equity cannot enforce the levy and collection of taxes to pay the debts of municipal corporations began with Walkley v. City of Mus- catine, 6 Wall. 481. In that case, the complainant Walkley had procured judgments against the city of Muscatine for interest on bonds of the city, execu- tions had been returned " nulla bona" the mayor and aldermen had refused to levy a tax for the payment of the judgments, and had used the annual tax for other purposes and paid nothing to plaintiff. Walkley then filed his bill in equity praying a decree that the mayor and aldermen be compelled to levy a tax and appropriate so much of its proceeds as might be necessary to pay his judgments. This court said, by Mr. Justice Nelson, that the remedy was by I mandamus at law, and "we have been furnished with no authority I >n THOMPSON V. ALLEN COUNTY. 675 for the substitution of a bill in equity and injunction for the writ of mandamus," p. 483; and he adds, that " a court of equity is invoked as auxiliary to a court of law in the enforcement of its judgments only when the latter is inadequate to afford the proper remedy," pp. 483-4. ,%d»^ By inadequacy of the remedy at law is here meant, not that it fidlsj _j ] to produce the money — that is a very usual result in the use of alll ^'j) A*--^ remedies — but that in its nature or character it is not fitted or adapted ^^fs"^-^"*^ to the end in view. i ''1A5-* such power has ever yet been exercised by a court of chancery. The! appo intment of its own officer to collect taxes levied by ovdw of a common-law cour* is as much without authority, as to appoint the same oflficer to lev^ and collect the tax. They are parts of the same proceeding, and relate to the same matter. If the common-law court iL^^ * 676 THOMPSON V. ALLEN COUNTY. can compel the assessment of a tax, it is quite as competent to enforce its collection as a court of chancery. Having jurisdiction to compe] the assessment, there is no reason whj- it should stop short, if any f\ further judicial power exists under the law, and turn the case over to ftjf a court of equity. Its sheriff or marshal is as well qualified to collect ^^ / the tax as a receiver appointed by the court of chancery. The difficulty is that no power exists in either court to fill the vacanc}' in the office of tax collector ; and the case of Lee County /Sifpervisors v. Hogers, 7 Wall. 175, where the laws of the State of Iowa expressl}' authorized the court to enforce its writ of mandamus by making such appointment, the onl}- case in which it has ever been done, shows that without such legislative authority it cannot be done. It is the duty of the marshals of the Federal courts and the sheriffs of Slate courts to levy executions issuing from these courts on the property- of defendants, and sell it, to raise money to pay their judg- ments. Let us suppose that, for some reason or other, the office of ( C* marshal or sheriff became vacant for a while. Would that authorize a( A.\ the court of equity of the Federal or State government to appoint a sheriff or marshal ? or to appoint a receiver to lev}' the execution ? or, 'Tjl if it had been levied, to sell the property, collect the purchase-money, ) and pa}' it to plaintiflJ" ? If this cannot be done, if it never has '^'t^'C'*^ been done, why can it do a much more unjudicial act, b}- appointing a lUr-. f\ collector to collect the taxes, or, what is still less appropriate, appoint- i-o^ ing a receiver, and endow him with that power ? To appoint a marshal or a sheriff to execute the process of a court to enforce the judgment of that court, is not such a wide departure from the judicial function as to appoint a receiver to collect taxes ; but no case has been cited of the exercise of even the former power by the court, much less the appointment, b}- a court of chancery, of an officer to execute the processes of a court of law. The appointment of special masters or commissioners to make sales under decrees in chancerv, is the ordinary mode of that court to enforce its decrees in cases where the court has jurisdiction of the subject matter of the suit. Not only are the decisions here reviewed of our own court clearly opposed to the exercise of this power by the court of equit}', but the decisions of the highest court of the State of Kentucky are equally emphatic. It is the powers derived from the statute law of that State under which alone this tax can be collected. The issue of the bonds on which tlie judgment was obtained was by virtue of a special statute, and that statute prescribed the mode of lev3'ing and collecting this tax. It enacted that its collection should not be by the sheriff who col lected the ordinary taxes for the State and county, but that a special tax collector should be appointed for that purpose by the justices of the County Court who levied the tax. The Court of Appeals, construing this statute, which was in existence wlien the bonds were issued, holds that no other officers but these can collect the taxes, and his decided, both in reference to this law and the Constitution of the Stnti^ that a THOMPSON V. ALLEN COUNTY. 677 court of chancery canuot appoint such an officer or exercise this func- tion of tax collector. McLean County Jfrecinct v. Deposit Mank 81 Ky. 254. This decision, if not conchisive, is entitled to great weight as con- struing the statute under which alone this tax can be levied and collected. These considerations require that the answers to each of the three questions certitied to us by the judges of the Circuit Court be in the negative, and that the decree of that court dismissing the bill be Affirmed. Vt> Harlan, J., dissenti ng. [After stating the case, and referring to various authorities relied on in the majority opinion.] These cases only establish the doctrine that the levying of taxes is not a judicial function. It seems to me that the granting of relief to Thompson will not, in any degree, disturb the principles announced in the foregoing cases. The bill does not ask the court to usurp the function of levying taxes. That dut}' has been performed by the only tribunal authorized to do it, viz., the County Court of Allen County. Nothing remains to be done, except to collect from individuals specific sums of mone^- which the}' are under legal obligation to pay. The collections of these sums will not interfere with any discretion with which the Allen County Court is invested b}- law ; for, by its own order, made in conformity with the law of the State, and by the judgment in the mandamus pro- ceedings, the sums due from the individual defendants, and from other tax-paj'ers, have been set apart for the payment of Thompson's judg- ments. Those sums, when collected, cannot be otherwise used. As the County Court cannot find an}* one who will accept the office of special collector, and as the parties agree that there is no mode of col- lecting the sums set apart in the hands of the individual defendants and other tax-pajers, for the payment of Thompson, I am unable to perceive wh}' the Circuit Court, sitting in equity, maj' not cause these sums to be applied in satisfaction of its judgments at law. The plain-j\^^ »^^^^xj tiff has no remedy at law ; for, the common-law court in rendering ^jy^ judgment has done all that it can do, and the local tribunal, by levying the required tax and seeking the aid of a special collector to collect it, has done all that it can do. There is no suggestion, or even pretence, that the tax-payers who are sued dispute the regularity of the assess- ment made against them by the Count}- Court. Admitting their legal liability for the specific amounts assessed against them, and conceding that what they owe must, when paid, go in satisfaction of Thompson's judgments, they dispute the authority of any judicial tribunal to com- pel them to pay it over. With money in their hands, equitably belonging to the judgment creditor, they walk out of the court whose judgments remain unsatisfied, announcing, in effect, that they will hold negotiations only with a " special collector," who has no existence. 678 THOMPSON V. ALLEN COUNTY. That the court below, sitting in equity — after it has given a judg- / ment at law for mouey, and after a return of nulla bona against the debtor — may not lay hold of moneys set apart, by the act of the debtor, in the hands of individuals exclusively for the payment of that judgment, and which money, the parties agree, cannot be otherwise reached than by being brought into that court, under its ordei's. Js a confession of helplessness on the part of the courts of the United unwillins; to make. States that I am opinion and judgment in this case. I, therefore, dissent from the A'^' \ ^ 'y INDEX. [When reference is to a single page, it indicates the case beginning on that page.] A. Admiralty, liability of municipal corporation in, 566. Admission fee, power to charge, to enclosed fields, 438, 440. Advertising for bids, effect of, 377. Amendment, legality of passage of, 195. Arrest, liability for false, 580. Asylum, power of city to aid, 318. Athletic field, power to enclose, 438, 440. Ayes and nays, entry of, 188. B. Billboards, power to regulate, 289. Bonds, power to issue, 356, 359. negotiable, 371. unauthorized, liability on, 474-513. Books of city, right to examine, 172. Bridge, compulsory maintenance of, 114. liability for defect in, 530. obligation to maintain, 248. Building, injury caused by employee of city constructing, 635. liabiUty for defect in public, 534, 571, 632. in leased, 642. defect in, used for gain, 647. pubUc, power to erect, 417. Canals, power to survey for, 335. Celebration, power to spend money on, 245, 317. Cemetery, Uability for cutting trees in, 641. power of state over, 123. Charity, power to aid private, 318. City, what constitutes action by, 148. City council, legality of action by, 162. rules of, 175, 178, 195. interest of members in legislation, 188. election of officers by, 200. special meetings of, 249. City hall, defects in, 632. Clerk, power of, to amend records, 170. Compensation of officers, 228, 236. 680 INDEX. Consent of inhabitants unnecessary to create municipal corporation, 18. Consolidation of municipal corporations, 40. Construction of public works, liability for negligence in, 633, 635. Contract, power to make, 356 et seq. requirement of advertising, 377. beyond debt limit, 381-408. to deal with property. See Property. Uability on, 474 et seq. bonds, 474-513. loans, 513-516, 520, 524. material, 516. furniture, 529. Crossings, power to require gates at, 286. Curfew ordinance, 267. D. Debt, effect of division of territory upon, 20-31. of annexation or consolidation, 45. of dissolution, 54-69. power to create, 356 et seq. limit of, 381-408. De facto mxuiicipal corporation, 69. officer, 236. Disease, liability for communication of, 564. District of Columbia, whether a municipal corporation, 3 . Division of municipal corporation, effect of, 20-38. DweUing-house for employee, power to erect, 424. E. Election of officers, 154, 156. Electric lighting plant, liability for negUgence in operating, 643. Embankment, liability for, 532. Execution, levy of, against city, 653. F. Farm, defect in buildings on, 647. Fenders, power to require, on street cars, 271. Fire, defects in hydrants or other appliances for extinguishing, 618, 622. negligence in extinguishing, 619, 620. power to guard against, by ordinance, 273. Fire limits, power to set up, 280. Fourth of July, power to celebrate, 245, 311. Franchise, power to grant, on condition, 300. whether violated by license fee, 433. Functions of municipal corporations, 13-17. Furniture, Uability of city for unauthorized purchase of, 529. Gas works, power to lease, 453. INDEX. 681 H. Health, liability for employees of department of, 582, 585, 587, 591. power to preserve, 252. Hearing necessary for removal of officer, 217. Highway. See Street. Hours of labor, power of state to regulate, 130. Hydrants, defects in, 618, 622. I. Improvements, power to survey for, 335. Initiative, legislation by, 149. Injunction against city to collect debt, 667. Insane asylum, liability for negligence in, 592. Investigation, power to expend money upon, 350. L. Labor, power of state to regulate hours and conditions of, 130-147. Land, injury by city to, 555, 557. occupation of, 558. dangerous, liability for, 639. power to sell, 443, 445. to lease, 453. Legislature, power of, to control municipal corporations, 82-147. Liability of municipal corporation. See Contract; Toet. Librarian, right to send, to meeting, 331. License fee on poles, 433. whether franchise violated by, 433. Loans, unauthorized, liability for, 513-516, 520, 524. M. Mandamus to compel levy of taxes, 657, 659, 662. Market, power to build, 240. Meeting of administrative board necessary to do business, 207. Meetings of city council, special, 249. Milk, inspection of, 282. Money, power to expend in advertising, 340. on celebration, 245, 317. on private asylums, 318. on legislative hearings, 319. on reimbursement of officers, 326, 330, 342, 347, 348. in sending officers to other cities, 331, 336, 338. in pensioning officers, 333. in surveying for improvements, 335. in investigating public questions, 350. Municipal corporations, liability of. See Contract; Tort. departments of, 175. Legislative department, 175 et seq. Administrative departments, 203 et seq. legislative control over, 82 et seq. 682 INDEX. Municipal corporations, legislative change of oflBcers, 82, 92. of form of government, 92. management of police by state, 100. compulsory taxation of, for police, 101. for schools, 105. for payment of damage, 108. maintenance of bridge, 114. subscription to railroad, 120. power of state to control cemetery, 123. to regulate hours and conditions of labor, 130-147. organization of, 148 et seq. action by initiative, referendum, &c., 149. nature of, 1 et seq. distinction between, and other corporations, 1-13. functions of, 13-17. creation, alteration, and dissolution of, 18. division of, 20-38. territory of, 38. annexation or consoUdation of, 40-54. abolition of, 54—69. succession of, 64-72. dissolution of, 72-81. officers of. See Officers. powers of. See Powers. N. Nature of municipal corporation, 1-13. Non-user, existence of corporation not terminated by, 72, 80. Note, power to issue, 363, 368. O. Office, compulsory acceptance of, 165. Officer, UabiUty for negligence of, 540, 542, 545. Officers, authority to create, 211. removal of, 214, 217. who are, 219. effect of legal exclusion of, from office, 223. compensation of, 228. de facto, 236. change of, by state, 82, 92. election of, 154, 156. power to reimburse, 326, 330, 342, 347, 348. to visit other cities, 331, 336, 338. to pension, 333. Omnibus, power to regulate, 255. Opera house, power to lease, 467. Ordinances, formalities for adoption, 178, 195. liability for failure to pass, 583. to enforce, 542, 569. power to pass, 252 et seq. must be reasonable, 252 et seq. to preserve health, 252. to regulate street traffic, 255, 268. INDEX. 683 Ordinances to assess for sidewalks, 264. to require safety appliances, 271. to guard against fire, 273. to regulate railroads in streets, 277. curfew ordinance, 267. to establish fire limits, 280. to require gates at crossings, 286. to regulate signs and billboards, 289. emission of smoke, 295. to compel clearing of sidewalk, 298. of street bj'^ railway, 304. to compel transfers on street railways, 427. P. Park, negligence in maintaining, 628. power to erect dwelling-iiouse in, 424. to lease restaurant in, 457. to sell, 446. Park Commissioners, whether a municipal corporation, 8. Pension fund, power to contribute to, 333. Pit, liability of city for maintaining, 639. Poles, power to exact license fee for, in street, 311, 312, 433. Police, control of, by state, 100, 101. Police Commissioner, rules of, 205. Police officer, liability for act of, 580. Powers of a municipal corporation, 240 et seq. to build market, 240. to expend money on celebration, 245. to maintain bridge, 248. to call special meetings, 249. to pass ordinances, 252 et seq. police, 277 et seq. to create fire limits, 280. to require inspection of milk, 282. safety gates, 286. to regulate signs and billboards, 289. emission of smoke, 295. to tax, 298 et seq. to compel clearing of sidewalk, 298. to grant franchise on condition, 300. to exact payment for franchise, 300. to compel clearing of street by railroad, 304. to exact license fee for poles in streets, 311, 312, 433. to expend money. See Money. to reimburse officers, 326, 330, 342, 347, 348. to pension officers, 333. to send officers to other cities, 331, 336, 338. to advertise, 340. to investigate pubUc questions, 350. to borrow money, 363, 368. to contract. See Contract. to authorize track over sidewalk, 428. to sell park land, 443. waterworks, 445, 451. water power, 462. 684 INDEX. Powers of a municipal corporation to lease gas works, 453. restaurant in park, 457. opera house, 467. Property, effect of division of territory upon, 31-38. power to acquire, in trust, 408. to buy land outside city limits, 413. to erect public buildings, 417. dwellings for employees, 424. to enclose athletic field, 438, 440. to sell, 443, 445, 451. to lease, 453, 457, 467. to dispose of surplus, 462. Public buildings, power to erect, 417. Public works, liabiUty for negUgence in constructing, 633, 635. board of, 203. R. Railroad, compulsory subscription for, 120. Railroads in streets, power to regulate, 271, 277. to require gates at crossings, 286. cleaning of highway, 304. Receiver to collect revenue, 673. Reconsideration of vote, 177. Records, amending, 170. Referendum, 149. Remedies against city, 653 et seq. levy of execution against, 653. mandamus to compel levy of tax, 657, 659, 662. injunction, 667. appointment of receiver, 673. Removal of officers, 214. hearing upon, 217. Restaurant, power to lease, in park, 457. Riot, compulsory damages for, 108. River, liabiUty for overflow of, 545. Rules of city council, 175, 178, 195. of poUce commissioner, 205. S. School board, action of, must be in meeting, 207. authority of, 209. power to contract for succeeding year, 204. School district is municipal corporation, 2. Schoolhouse, liability for defect in, 534. Schools, compulsory support of, 105. power to require vaccination as condition of entrance to, 278- Sewer, defect in plan of, 546, 548. in maintenance of, 611. Sidewalk, clearing of, required, 298. power to authorize track over, 428. power to assess for, 264. Signs, power to regulate, 289. Smoke, power to regulate emission of, 295. INDEX. 685 Street, liability for change of grade of, 550, 552. for defect in, 601, 603. power to compel railway to keep clear, 304. to exact license fee for poles in, 311, 312. power to acquire land to furnish stone for, 413. power to regulate traffic on, 255, 268. railroads in, 277. T. Taxes, levy of, compelled by mandamus, 657, 659, 662. Tort, liability for, 530 et seq. defect of bridge, 530. embankment, 532. defect in public buildings, 534. negligence of officer, 540, 542, 545. enforcement of ordinance, 542. overflow of river, 545. defect in sewer or in plan of sewers, 546, 548. change of grade of street, 550, 552. injury to real estate, 555, 557. occupation of land, 558. vltra vires acts, 561. communication of disease, 564. in admiralty, 566. negligence in enforcement of ordinances, 569. defect in public building, 571. false arrest, 580. negligence of health officers, 582. failure to pass ordinance, 583. negligence in vaccinating, 585. of employee of health departments, 587. of employee cleaning streets, 591. of employee in public asylum, 592. permitting exhibition of fireworks, 595. defect in highway, 601, 603. in sewer, 611. in fire hydrants, 618, 622. negligence in extinguishing fire, 619, 620. in maintaining park, 628. defect in city hall, 632. in constructing works, 633, 635. in dangerous land, 639. for cutting trees in cemetery, 641. defect in leased building, 642. negligence in operating commercial enterprise, 643. defect in city farm, 647. Tracks, power to authorize, 428. Transfers, power to compel, 427. Trust, acceptance of property in, 408. U. Ultra vires act, liability for, 561. 686 INDEX. Vaccination, power to require, 278. liability for negligence in, 585. Vote, reconsideration of, 177. W. Wages, power of state to regulate, 135. Water Commissioners, Board of, whether a municipal corporation, 6. power of legislature over, 82. Water-power, surplus, power to sell, 462. Waterworks, power to sell, 445, 451. _ I^W UBUARY ^ ^ UMWRSTTY Of CA Xif ORNIA %^ if'*f^ ANGELES ^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 604 309 5 ililiiiiiiiiitii iiiitliiilf \\U\i iiiilillliil; ilii liiiiiill: 111 1 hi 4.- ! (iiijiiiiiiijii ^iiiffitiiiiitiiiiiiiiiiiiiiiiiiiiiiiii ii;:: } 1 •, ( ; U ( n ( t H i 1 1 iiiliiilllli lit % I 11' 3J': lii'^ • ■ . .. .iill !« iiiilliiii' '■; ' ■ '''' ■ ■!'! 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