(Sorn^U 2jam i>rljnnl ICibtaty 
 
„_ Cornell University Library 
 
 KF 5305.D57 1881 
 
 V.I 
 
 Commentaries on the law of municipal cor 
 
 3 1924 019 959 265 
 
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COMMENTARIES 
 
 THE LAW 
 
 OP 
 
 MUNICIPAL CORPORATIONS. 
 
 BY 
 
 JOHN F. DILL ON. LL.D. 
 
 PROFESSOR OF REAL ESTATE AMD EQUITY JURISPRUDENCE IN COLUMBIA COLLEOE 
 
 LAW SCHOOL ; LATE CIRCUIT JUDGE OF THE UNITED STATES FOR THE 
 
 EIGHTH JUDICIAL CIRCUIT, AND FORMERLY CHIEF JUSTICE OF 
 
 THE SUPREME COURT OF IOWA. 
 
 THIRD EDITION, REVISED AND ENLARGED. 
 
 Vol. L 
 
 BOSTON: 
 
 LITTLE, BROWN, AND COMPANY. 
 
 1881. 
 
Entered, according to Act o{ Congress, in the year 1881, 
 
 Br John F. Dillon, 
 In ttie Office of tlie Librarian of Congress, at Wasliington. 
 
 s53o5' 
 ) 
 
 University Press: 
 John Wilson and Son, Cambridge, 
 
TO THE 
 
 HONORABLE SAMUEL F. MILLER, LL.D. 
 
 ASSOCIATE JUSTICE OF THE SUPREME COUBT 
 OF THE UNITED STATES. 
 
 WHETHER I SHAKE IN THE 
 
 GENERAL ADMIRATION OF YOUR JUDICIAL TALENTS, 
 
 OR LISTEN TO THE MORE PERSUASIVE SUGGESTIONS OF A VOICE 
 
 THAT COMES TO MB FROM 
 
 LONG ASSOCIATION AT THE BAR AND UPON THE BENCH, 
 
 THERE IS NO ONE TO WHOM I CAN INSCRIBE, 
 
 SO FITTINGLY AS TO YOURSELF, 
 
 A WORK 
 
 RELATING TO AN IMPORTANT BRANCH OF THAT SCIENCE 
 
 WHICH YOU HAVE STUDIED SO DEEPLY 
 
 AND UNDERSTAND SO WELL. 
 
PEEFAOE TO THIRD EDITION. 
 
 A REVISION of this Treatise has for some time been 
 needed, but the pressure of other duties has, until re- 
 cently, prevented its preparation. During the seven years 
 that have elapsed since the last edition an unusual number 
 of cases has been decided upon the various topics em- 
 braced in the work. The reported decisions to December 
 1, 1880, have all been diligently examined, and the results 
 of such examination wrought into the texture of the pres- 
 ent edition. This has necessarily increased its size, and 
 correspondingly, it is hoped, its value. More than two 
 hundred new sections have been written, and over three 
 thousand additional cases cited. Every part has been 
 gone over with conscientious care, and there is scarcely a 
 section in which, either in the text or the notes, additions 
 and changes have not been made. It has been necessary 
 to sectionize the work anew, but the numbers of the former 
 sections are enclosed in parentheses. 
 
 In consulting the Reports the author has been surprised 
 and pleased to see the extent to which this Treatise has 
 been used by lawyers and judges as an aid to their labors ; 
 and in again presenting it, in its new and altered shape, he 
 gladly expresses once more his sincere and profound grat- 
 ification for the favor with which it has been received. 
 
 J. F, D. 
 
 Columbia College Law School, New Yore, 
 January 1, 1881. 
 
PREFACE TO SECOND EDITION. 
 
 The favor accorded to this treatise by the profession, is 
 gratifying to the author and compensates for the great 
 labor of its preparation. • Nothing can be more pleasing 
 to an author than the knowledge that the studious care 
 given to a work is appreciated by those for whom it was 
 written : their approving opinion is the reward he covets 
 and enjoys. 
 
 The First Edition, published about twelve months ago, 
 and of nearly double the usual size, has been exhausted, 
 and at the request of the publishers the Second Edition 
 has been prepared. As before, this has been the personal 
 labor of the author. All reported cases, decided since the 
 first publication, have been examined and the text and 
 notes prepared without the assistance of others. While 
 this edition embraces a summary of recent cases to the 
 latest date and contains substantial additions, the structure 
 of the work is unaltered. Some new sections have been 
 added and others re-written. The principal changes have 
 been made in the chapters which treat of Municipal 
 Securities, Taxes, and Assessments. The amount of nego- 
 tiable bonds of municipalities largely exceeds the sum of 
 the indebtedness of all the states, and it has been the 
 earnest endeavor herein to exhibit accurately the American 
 law upon this important subject. 
 
VUl PREFACE TO SECOND EDITION. 
 
 In conclusion, it is deemed fitting to express to the 
 Bench and Bar of the country a sincerely grateful appre- 
 ciation of the favorable judgment already pronounced, and 
 a hope that the same, upon further examination of the 
 work, may be neither reversed nor modified. 
 
 J. F. p. 
 
 Daybitport, Iowa, 1873. 
 
PEEFAOE TO FIEST EDITIOIJ}". 
 
 The necessity for a work upon Municipal Corporationa 
 was so seriously felt by the author when holding a seat on 
 the Supreme Bench of a state where questions relating to 
 the powers, duties, and liabilities of municipalities were 
 presented at almost every turn, that he resolved, eight 
 years ago and more, to endeavor to supply the want. 
 Although the sulJject is one of unsurpassed practical im- 
 portance, since nearly every considerable city and town in 
 the United States is incorporated, no American work upon 
 it has ever appeared. A careful examination of the Eng- 
 lish treatises satisfied the author that they were, in a great 
 measure, inapplicable here, and that they fail to cover a 
 large portion of the existing field of the law upon the 
 subject as enlarged by American legislation and practice. 
 True, our municipal system, like the body of our jurispru- 
 dence, was derived from England, but it is remarkable how 
 many changes were necessary to adapt it to our system of 
 government and mode of administration, and to the wants 
 and situation of our people. Accordingly, if the munici- 
 palities of the one country be closely compared with those 
 of the other, it will be found that, in their structure, powers, 
 and workings, they present quite as many points of differ- 
 ence as of similarity. 
 
 We have popularized and made use of municipal insti- 
 tutions to such an extent as to constitute one of the most 
 striking features of our government. It owes to them, 
 indeed, in a great degree, its decentralized character. 
 When the English Municipal Corporations Reform Act of 
 
X PREFACE TO FIEST EDITION. 
 
 1835 was passed, there were in England and Wales, ex- 
 cluding London, only two hundred and forty-six places 
 exercising municipal functions ; and their aggregate popu- 
 lation did not exceed two millions of people. In this 
 country our municipal corporations are numbered by thou- 
 sands, and the inhabitants subjected to their rule by 
 millions. 
 
 Our municipalities are habitually clothed by the legis- 
 latures with extensive, important, <and diversified powers, 
 and consequently possess a much more composite character 
 than in England or elsewhere. Strictly, a municipal cor- 
 poration is an institution designed to regulate and admin- 
 ister the mere local or internal concerns of the incorporated 
 place in matters pertaining to it, and not relating directly 
 to the people of the state at large. But in this country, 
 much more generally than in England, it is the practice to 
 make use of the municipality, or of its ofl&cers, as agencies 
 of the state, for the exercise, on its behalf, of public, in 
 addition to corporate, duties and functions. From the 
 difEerence between these two classes of powers the Amer- 
 ican courts have deduced consequences so important that 
 it is as necessary as it is oftentimes difficult to distinguish 
 between them. Besides, it has unfortunately become 
 quite too common with us to confer upon our corporations 
 extraordinary powers, such as the, authority to aid in the 
 construction of railways, or like undertakings, which are 
 better left exclusively to private capital and enterprise, and 
 to create, in their corporate capacity, indebtedness therefor, 
 enforceable by actions in the courts, and which must be 
 paid by taxation. 
 
 Invested, also, within certain limits, with delegated legis- 
 lative authority concerning the property and conduct of 
 their inhabitants ; with power, more or less extensive, to 
 acquire and dispose of property ; with the power to elect 
 their own officers ; to make contracts ; to incur liabilities ; 
 to exercise Eminent Domain ; and the more momentous 
 power to levy and collect taxes, general and special, — these 
 corporate agencies are thus brought into intimate and daily 
 
PEEFACE TO FIRST EDITION. XI 
 
 contact with the most important rights and interests of 
 their inhabitants, and as a result we have an amount and 
 variety of litigation not to be found in the tribunals of 
 other countries. In no English treatise on Municipal Cor- 
 porations is there a chapter upon the subject of civil actions 
 and liabilities, and no discussion of the question as to their 
 amenability to respond civilly in damages to individuals for 
 acts of misfeasance, or for neglect of duty ; and, for reasons 
 not material to be here stated, the occurrence of questions 
 of this kind in the English tribunals has been compara- 
 tively infrequent. The American Reports, however, teem 
 with cases on this subject, and the civil liability of muni- 
 cipal corporations upon contracts and for torts, and the 
 mode of enforcing it, are with us the most important 
 practical topics requiring treatment in a work of this 
 character. 
 
 There being no American work on this branch of the 
 law, and the decisions in this country relating to it being 
 scattered through the reports of the federal courts, and 
 those of thirty-seven states, there was little to guide the 
 author, either as to the arrangement of his subject, or as 
 to what had been decided by the courts concerning it. 
 Accordingly he had no resource except to delve laboriously 
 for his materials among hundreds of volumes ; but these 
 have, one by one, been examined by him with a view to 
 find all that could be advantageously used to illustrate the 
 subject; and the Result is given, either in the text or notes, 
 as fully as it was practicable within the compass of a single 
 volume. Nor has he overlooked the aid to be derived from 
 other sources. Every English publication relating to the 
 subject in its legal or practical relations has been subjected 
 to examination ; books which could not otherwise be had 
 have been specially procured from abroad. And, through- 
 out the present volume, no inconsiderable pains have been 
 taken to set forth wherein the English and American 
 municipalities differ, so that the applicability and precise 
 legal value of the judicial decisions of the former country 
 would be better understood. 
 
xn PKEFACE TO FIB8T EDITION. 
 
 When the work was resolved upon, the author hoped to 
 proceed with the leisurely care that would enable him to 
 avoid the faults which thorough deliberation might result 
 in correcting. This hope has not been as fully realized as 
 he desired, for year by year his official duties have more 
 and more encroached upon his time, leaving for this work 
 only the diminishing intervals between courts. In its 
 preparation he has often envied the author by profession 
 the opportunity for continuous and*unbroken labor, and he 
 cannot but feel that if his work had not been prepared in 
 fragments, it would not have fallen both so far below his 
 ideal, and what, under more auspicious circumstances, he 
 himself might have made it. It is hoped, however, if it 
 shall lack the symmetry and finish such an author would 
 have given it, that it may have compensating advantages 
 in its thoroughly practical character; and these it will 
 surely owe to that experience to which the mere student 
 or professional writer must ever be a stranger, and which 
 can be had only upon the Bench or at the Bar. 
 
 Some peculiarities in the manner of its preparation will 
 be observed. The aim throughout has been to make a 
 work which will be useful to the profession. Aware that 
 in most cases access to complete law libraries cannot be 
 had, the author has endeavored, as far as practicable, to 
 supply this want, and to make the text and notes exhibit 
 the substance of the adjudications. This explains why so 
 much care has been taken to cite the cases bearing upon 
 the subjects discussed, and accounts for the fulness of 
 proofs and illustrations to be found in the notes. 
 
 He trustfully submits the work, which fills up the inter- 
 stices between judicial duties for nearly nine years, to the 
 profession for whose assistance it is designed, and whose 
 final judgment on it will not be otherwise than just. If 
 he could be assured that it has a value at all proportioned 
 to the labor first and last bestowed upon it, he would ven- 
 ture to hope for a judgment hot altogether unfavorable. 
 
 Datenport, Iowa, 1872. 
 
CONTENTS OF VOLUME I. 
 
 CHAPTER I. 
 
 MUNICIPAL INSTITUTIONS — INTRODUCTORY HISTORICAL AND GENERAL VIEW. 
 
 Ancient cities. Grecian cities. Soman municipalities. State of towns in 
 Europe after the fall of the Roman Empire. Mediaeval charters. Charters 
 of community in Prance. Modifications of Roman mutiicipal system. En- 
 franchisement of towns in Spain, and its causes. Municipal system of Great 
 Britain. Historical sltetch of boroughs : their incorporation and distinctive 
 features. Origin of popiilar representation. London and its municipal his- 
 tory and charters. Corruption and abuses in the English municipal corpo- 
 rations. Reform Act of 1835. Lord Brougham's services in promoting 
 municipal reform. American municipal system. Its early origin. Decen- 
 tralized character. Operation and effects. Coriuptiun and abuses. Reme- 
 dies suggested. Results summed up. < ^1-17 
 
 CHAPTER II. 
 
 CORPORATIONS DEFINED AND CLASSIFIED. 
 
 General definition. Municipal corporations defined. Different kinds and grades 
 of public corporaticms. Quasi corporations. New England towns : powers 
 and mode of government. City governments. The state as a pubUo cor- 
 poration 54 18-31 
 
 CHAPTER III. 
 
 CREATION AND SEVERAL KINDS OF MUNICIPAL CORPORATIONS. 
 
 In Englamd. — Royal and parliamentary corporations. The old English muni- 
 cipal corporations. Their diverse character. Integral parts. Abuses in 
 municipal rule. Municipal Reform Corporations Act of 1835. Abstract of 
 its leading provisions. Constitutes the English corporations upon an uniform 
 model. 
 
 In the United States. — Created only by state legislative enactment. Their 
 great numbers. Creation by territorial legislatures. Special charters and 
 
xir CONTENTS OF VOLUME L 
 
 general incorporating acts. Outline of ordinary municipal charter. Ad- 
 vantage of general incorporating acts. Creation by implication. Accep- 
 tance of charter. Submission to vote of inhabitants. Local option laws. 
 Special constitutional provisions and their construction. General and special 
 acts. Bestriction on municipal powers. Title of incorporating charter or 
 acts JJ 32-51 
 
 CHAPTER IV. 
 
 PUBLIC AND PEIVATE COEPOKATIONS DISTINGUISHED. — LEGISLATIVE POWEE 
 AND ITS LIMITATIOHS. 
 
 Importance of the distinction between public and private corporations. Differ- 
 ence defined. Scope of legislative authority. Complex character of ordinary 
 municipalities. Distinction between public or state and municipal or local 
 powers. Legislative authority over corporate funds and revenues. Limita- 
 tion in favor of creditors. Power over corporate boundaries and public prop- 
 erty. Whether municipal corporations are in any respect private. Cases 
 cited and criticised. Public powers and rights held at the will of the legis- 
 lature. Creditor's rights cannot be impaired. Illustrations from de<-ided 
 cases. Extent of legislative power over the private property of municipal 
 corporations discussed. May be compelled by the legislature tn pay debts not 
 legally binding; and to incur debts against their will. Power over trust 
 property $§ 52-80 
 
 CHAPTER V. 
 
 MUNICIPAL CHARTERS. 
 
 General Municipal Powers. — Their Nature and Construction. 
 
 Charters defined. Judicially noticed. Proof of corporate existence ; user ; leg- 
 islative, recognition. Repeals and amendments. General laws and spe<aal 
 charters; conflict; constructions. 
 
 Extent of power ; limitations ; canons of construction. Usage as affecting mu- 
 nicipal powers. Discretionary powers not subject to judicial control. Public 
 powers and trust-s not capable of delegation. Legislative powers incapable of 
 surrender. Mandatory and discretionary powers; difference defined and illus- 
 trated. Revenues exempt fi'om judicial seizure. Garnishment. f$ 81-101 
 
 CHAPTER VI. 
 
 MUNICIPAL CHARTERS (CONTINUED). 
 
 fecial Powers and Special lAmitatums. 
 
 1 . Wharves. 
 
 2. Ferries. 
 
 3. Borrowing money. 
 
 4. Limitation on power to become indebted. 
 
CONTENTS OF VOLUMB L XV 
 
 5. Rewards for offenders. 
 
 6. Public buildings. 
 
 7. Police powers and regulations. 
 
 8. Prevention of fires. 
 
 9. Quarantine and health. 
 
 10. Indemnifying of officers. 
 
 11. Furnishing entertainments. 
 
 12. Impounding animals. 
 
 13. Party walls. 
 
 14. Public defence. 
 
 15. Aid to railway companies, and herein of the constitutional power of the 
 
 legislature; cases cited. Power must be express. Construction of 
 special grants of power ; cases cited J J 102-164 
 
 CHAPTER VII. 
 
 DISSOLUTION OP MUNICIPAL CORPORATIONS. 
 
 In England : 1. By act of parliament. 2. By loss of integral part. 3. By sur- 
 render. 4. By forfeiture. These modes, except the first, not applicable in 
 this country. Effect of dissolution on property and debts. Authorities re- 
 viewed. Revival of corporation and its effect 4$ 165-174 
 
 CHAPTER VIII. 
 
 CORPORATE NAME, BOUNDARIES, AND SEAL. 
 
 Corporate name. Name as respects grants and contracts. Name as respects 
 suits. Corporate boundaries. Legislative enlargement of territorial limits. 
 Territorial division — its effect on property and rights. Corporate seal ; 
 proof of. ** 175-192 
 
 CHAPTER IX. 
 
 MUNICIPAL ELECTIONS AND OFFICERS. 
 
 1. Municipal popular elections. 
 
 2. Special tribunal to detennine election contests for municipal ofBces. 
 
 3. Power to create and appoint municipal o£Bcers. 
 
 4. Oath and official bond. 
 
 5. Duration of oificial term. 
 
 6. Vacancies in municipal offices. 
 
 7. Refusal to serve in office. 
 
 8. Resignation of municipal office. 
 
 9. Compensation of municipal officers. 
 
 10. Liability of the corporation to the officer. 
 
 11. Liability of the officer to the corporation and to others. 
 
 12. Amotion and disfranchisement M 193-256 
 
XVi CONTENTS OF VOLUME L 
 
 CHAPTER X. 
 
 CORPORATE MEETINGS. 
 
 1. Common-law requisites of a valid corporate meeting. 
 
 2. Notice of corporate meetings at common law and under the £!ngli^h 
 
 Municipal Corporations Act. 
 
 3. New England town meetings ; requisities of notice and power of ad- 
 
 journment. 
 
 4. Constitution and meetings of councils or of select governing bodies ; and 
 
 hereiti of quorums and majorities J of integral parts; and of stated, 
 special, and adjourned meetings. 
 
 5. Mode of proceeding wheU convened 5$ 257-292 
 
 CHAPTER XI. 
 
 CORPORATE RECORDS AND DOCUMENTS. 
 
 Means t)f evidence. Clerk pro tern. Power to amend records. Admissibility of 
 parol evidence. Remedy to compel delivery of books and records. Manda- 
 mus. Replevin; Inspection of corporate documents and records. Records 
 as evidence. Originals and authenticated copies $$ 293-305 
 
 CHAPTER XII. 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 1. Definition, general nature, and common-law requisites of ordinanoea. 
 
 3. Signing, publication, and recording. 
 
 3. Power to impose fines, penalties, and forfeitures. 
 
 4. On whom binding, and notice thereof. 
 
 5. Ordinances relating to the licensing, regulating, and taxing of amuse- 
 
 ments and occupations, including the sale of intoxicating liquors. 
 
 6. Ordinances relating to public offences. 
 
 7. Ordinances relating to the public health, safety, and Convenience ; herein 
 
 of hospitals, cemeteries, and burials ; nuisances ; markets and inspec- 
 tion regulations; dangercgis occupations and practices; and of the 
 police powers and general welfare clause in charters. 
 
 8. Mode of enforcing ordinances; herein of actions and prosecutions and 
 
 their nature ; mode of pleading ordinances ; requisites of complaints to 
 enforce ordinances ; construction ; defences ; evidence, etc. 
 
 U 306-423 
 
 CHAPTER Xin. 
 
 MUNICIPAL COURTS. 
 
 In England, and at common law. American corporation courts. Constitutional 
 provisions. Constructions. Right to jury trial. Competency of citizeng to 
 
CONTENTS OF VOLUME I. Xvii 
 
 be local judges, jurors, and witnesses. Summary convietions, when valid. 
 Indictable offences. Distinctions. Extent of jurisdiction. Jury on appeal. 
 Review by Superior Courts 45 424-441 
 
 CHAPTER XIV. 
 
 CONTRACTS. 
 
 1. Extent of power to contract, and how conferred. 
 
 2. Mode of exercising the power. 
 
 3. Seal not necessary unless required ; may be concluded by vote or 
 
 ordinance. 
 
 4. When bound by contracts made by agents ; mode of execution. 
 
 5. Contracts beyond corporate powers void ; ultra vires a defence. 
 
 6. Implied contracts ; when deducible. 
 
 7. Ratification of unauthorized contracts. 
 
 8. Provisions requiring letting to the lowest bidder. 
 
 9. Contract of suretyship. 
 
 10. Rights and liabilities as respects authorized contracts ; cases mentioned. 
 
 Power to settle disputed claims ; to give extra compensation ; to em- 
 ploy attorneys. 
 
 11. Contracts for public works ; rights of contractors. 
 
 12. Same : corporate control under stipulation. 
 
 13. Evidences of indebtedness ; negotiable bonds. 
 
 14. Ordinary warrants or orders ; their legal nature. 
 
 15. Liability of indorsers thereof. 
 
 16. Payment and cancellation of orders and waiTants. 
 
 17. Rights and remedies of holders thereof. 
 
 18. Defences thereto ; ultra vires ; fraud ; want of consideration. 
 
 19. Orders payable out of particular fund. 
 
 20. Interest on corporate indebtedness. 
 
 21. Railroad aid bonds ; course of decision in United States Supreme Court. 
 
 22. Leading cases in the National Supreme Court on the subject noticed. 
 
 23. Decision in State Courts referred to. Author's conclusions stated. 
 
 JM42-555 
 
 roL. I. 
 
TABLE OF CASES CITED. 
 
 Pago 
 
 Abbott V. Herman (7 Me. 118) 462 
 
 V. Mills (3 Vt. 521) 632, 635, 642, 658 
 
 0. Yost (2 Denio, N. Y. 86) 264 
 
 Abby V. Billups (35 Miss. 618) 219, 445 
 
 Aberdeen Hailroad Co. v. Blaikee 
 
 (1 Maeq. A. C. 461) 487 
 
 V. Saunderson, (16 Miss. 663) 85, 106 
 
 Abemethy v. Dennis (49 Mo. 468) 667 
 
 Achley's Case (4 Abb. Pr. Eep. 85) 236, 
 
 240, 290 
 Adair v. City, etc. (27 U. C. C. P. 126) 
 
 1049 
 Adams v. Bank (1 Me. 361) 962 
 
 o. Beale (19 Iowa, 61) 815 
 
 V. Carlisle (21 Pick. 146) 1022 
 
 V. Emerson (6 Pick. Mass. 57) 684 
 B.Farns worth (16 Gray, 428) 455 
 V. Hill (16 Me. 215) 297 
 
 V. Lancashire, etc. Eailway Co. 
 
 (L. B. 4 C. P. 739) 1051 
 
 V. Lindell (5 Mo. App. 197) 807 
 
 V. Mack (3 N. H. 493) 316 
 
 V. Mayor (2 Head, Tenn. 363) 769 
 V. Mayor (29 Ga. 56) 332, 840 
 
 V. Minneapolis (20 Minn. 484) 203 
 K. Natiek (13 Allen, 429) 1018 
 
 ». Newfane(a Vt. 271) 604 
 
 V. Railroad Co. (1 1 Barb. 414) 703 
 V. Baiboad Co. (10 N. Y. 328) 597 
 V. Railroad Co. (2 Coldw. 645) 
 
 551, 574 
 .,. Railroad Co. (18 Minn. 260) 704 
 .,. Railway Co. (2 M. & G. 118) 914 
 V. Rivers (11 Barb. N. Y. 393) 686 
 V. Rome (59 Ga. 765) 575 
 
 ». Walker (34 Conn. 466) 1068 
 
 V. Whittlesey (3 Conn. 560) 263 
 
 Addis V. Pittsburg (85 Pa. 389) 448, 464 
 Adley v. Beeves (2 M. & S. 60) 349, 354, 
 
 404 
 Adolph V. Railroad Co. (65 N. Y. 554) 712 
 Adriance v. New York (1 Barb. 19) 913 
 Adsit V. Brady (4 Hill, N. Y. 630) 265 
 ^tna Mills v. Waltham (126 Mass. 
 
 122) 974 
 
 African Soc. v. Varick (13 Johns. 38) 
 
 206,208 
 Agawam Bank v. South Hadley (128 
 
 Mass.) 939 
 
 V. South Hadley (21 Alb. L. J. 
 516) 939 
 
 Aiken v. Railroad Co. (20 N. Y. 370) 143 
 Akron v. Chamberlain (34 Ohio St. 
 
 328) 1002 
 
 Albany St. m re (6 Abb. Pr. E. 273) 125 
 
 (11 Wend. 148) 585, 686, 
 
 592, 748 
 
 Albany v. Cunliff (2 N. Y. 165) 451, 972 
 
 Albright v. Town Council (9 Rich. 
 
 Law, 399) 439 
 
 Albrittin v. Huntsville (60 Ala. 486) 109, 
 
 1037, 1039, 1040, 1052 
 
 Alcorn v. Horner (38 Miss. 652) 748 
 
 V. Philadelphia (44 Pa. St. 348) 979, 
 
 984 
 
 Alden ». Alameda (43 Cal. 270) 839, 937 
 
 V. Minneapolis (24 Minn. 254) 1001 
 
 V. Pinney (12 Fla. 348) 660 
 
 V. Eounsville (7 Met. 219) 217 
 
 Alderman v. Finley (5 Eng. Ark. 423) 109 
 
 Aldrich b. Drury (8 R. I. 554) 684 
 
 V. Howard (7 R. 1. 87, 199) 379, 383, 402 
 
 V. Londonderry (5 Vt. 441) 938 
 
 V. Pelham (1 Gray, 510) 1025 
 
 V. Tripp (11 R. I. 141) 968, 971, 978, 
 
 988, 991 
 
 Alexander v. Baltimore (5 Gill (Md), 
 
 383) 596, 605, 610, 614, 732, 747, 
 899 
 V. Bennett (60 N. Y. 204) 431 
 
 V. Bethlehem (5 Dutch. 375) 410 
 
 V. Helber (.35 Mo. 334) 811 
 
 o. Hoyt (7 Wend. (N. Y.) 89) 264 
 ». McDowell (67 North Car. 330) 858 
 V. Milwaukee (16 Wis. 247) 996,1002 
 V. Railroad Co. (3 Strob. S. C. L. 
 
 594) 133 
 
 V. Town Council (54 Miss. 659) 402 
 Alexandria v. Alexandria (5 Cranch, 
 
 2) 114 
 
 V. Fairfax (95 U. S. 774) 1049 
 
 Alger V. Lowell (3 Allen, 402) 1018, 1019, 
 
 1023, 1041 
 
 Allaire v. Hartshorne (21 N. J. L. 
 
 665) 500 
 
 Alleghany City's Appeal (41 Pa. St. 
 
 60) 814 
 
 Alleghany City ». McClurken (14 Pa. 
 
 St. 81) 451, 453, 458, 481 
 
 Alleghany County v. Gibson (20 Alb. 
 
 L.J. 429) 958 
 
 V. Shaw (34 Pa. St. 301) 963 
 
XX 
 
 TABLE OF CASES CITED. 
 
 Alleghany v. Van Campen (3 Wend. 
 
 49) 242 
 
 0. KaUroad Co. (26 Pa. St. 355) 680, 
 
 702 
 Allegheny v. Zimmerman (10 Pitts. 
 
 L. J. 168) 379 
 
 Allen i). Brooklyn (i Fisher, Pat. Cas. 
 
 598) ' 968 
 
 V. Burlington (45 Vt. 202) 942 
 
 V. Cameron (3 Dill. 175) 510 
 
 V. Cooper (22 Me. 133) 297, 462 
 
 V. Decatur (24 III. 3.32) 974 
 
 V. Galveston (51 Tex. 302) 116, 443, 
 767, 778, 810, 813 
 V. Jay (60 Me. 124) 187, 491, 588, 595, 
 
 728 
 17. Jones (47 Ind. 438) 591, 592, 596, 
 
 612 
 V. McKean (1 Sumn. 276) 75, 259 
 V. Taunton (19 Pick. 485) 41, 42, 171 
 V. Turner (11 Gray, 426) 915 
 
 V. Willard (57 Pa. St. 374) 1058 
 
 AUentown v. Kramer (73 Pa. St. 406) 
 
 1038, 1068 
 B. Saeger (20 Pa. St. 421) 941, 942, 
 943, 946 
 Aller V. Cameron (3 Dillon C. C. K. 
 
 198) 522 
 
 Alletson v. Chichester (L. B. 10 C. P. 
 
 319) 1053 
 
 Alley B.Adams County (76111. 101) 192 
 Allison V. Juniata Co. (50 Pa. St. 
 
 351) 484, 488 
 
 V. V. L. H. etc. Co. (10 Bush, 1) 181 
 !). Railway Co. (9 Bush, 247) 105,911 
 All Saints' Church v. Lovett (1 Hall, 
 
 191) 204 
 
 Altemus n. Mayor (6 Duer, 446) 467 
 
 Alton v. Hope (68 lU. 167) 950, 1000, 1038, 
 
 1068 
 
 V. Kirsch (68 111. 261) 406, 409 
 
 V. Madison Co. (21 III. 115) 938 
 
 </. MuUedy (21 111. 76) 445, 455 
 
 «. Transportation Co. (12 111. 60) 559, 
 
 671, 643, 646, 647 
 
 Alvis V. Henderson (16 B. Mon. 131) 570, 
 
 647, 667, 673 
 
 Alvord V. Ashley (17 HI. 363) 626 
 
 V. Barrett (16 Wis. 175) 265 
 
 Ambov v. Sleeper (31 111. 499) 368 
 
 Ambrose v. State (6 Ind. 351) 371 
 
 Amelung a. Seekamp (9 6. & J. (Md.) 
 
 468) 659 
 
 American Bible Soc. v. Marshall (15 
 
 Ohio St. 537) 561 
 
 American Ins. Co. v. Oakley (9 Paige, 
 
 496) 455 
 
 American Pavement Co. v. Elizabeth 
 
 City (4 Fisher, Pat. Cas. 189) 968 
 American Print Works ». Lawrence 
 
 (23 N. J. L. 590) 265, 954 
 
 American, etc. Co. v. BujSalo (20 N. 
 
 Y. 381) 770 
 
 American Railway, etc. Co. v. Haven 
 
 (101 Mass 398) 855 
 
 American U. Ex. Co. v. St. Joseph 
 
 (66 Mo. 675) 739, 741 
 
 Ames V. County (11 Mich. 139) 168 
 
 V. Lake, etc. Railroad Co. (21 
 
 -Mum. 241) 612, 614 
 
 Amesbury v. Ins. Co. (6 Gray, 596) 414 
 
 Amey v. Alleghany City (24 How. 
 
 365) 165, 180, 190, 341, 343, 482, 
 651, 768 
 Amite City v. Clements (24 La. An. 
 
 27) 77, 79, 812 
 
 Amos V. Fond du Lac (46 Wis. 695) 1055 
 Amrine v. K. & P. R. R. Co. (7 Kan. 
 
 ♦ 178) 921 
 
 Amy V. Supervisors (11 Wall. 136) 265, 
 
 820, 849, 851, 1075 
 
 Anderson in re (60 N. Y. 457) 324 
 
 ». Common wealth (14 Bush. 171) 63 
 
 V. Draining Co. (14 Ind. 199) 592 
 
 V. Keru's Drain Co. (14 Ind. 201) 358 
 
 V. St. Louis (47 Mo. 479) 597, 605, 
 
 922 
 
 V. State (23 Miss. 459) 773, 915, 958 
 
 Andover v. Gould (6 Mass. 40) 683, 1005 
 
 V. Grafton (7 N. H. 298) 41, 449, 480 
 
 ». Sutton (12 Met. 182) 721 
 
 Andrews v. Insurance Co. (37 Me. 
 
 256) 329 
 
 V. Pratt (44 Cal. 309) 257, 570 
 
 V. United States (2 Story, C. C. 
 
 203) 254, 256 
 
 Annapolis v. Harwood (32 Md. 471) 812 
 
 V. State (30 Md. 212) 71 
 
 Anthony St. in re (20 Wend. (N. Y.) 
 
 618) 601, 602 
 
 Anthony v. Adams (1 Met. 284) 40, 42, 
 970, 972, 974, 994 
 V. Brecon, etc. Co. (L. R. 2 Ex. 
 
 167) 377 
 
 V. Cleveland (12 Ohio, 375) 451 
 
 V. Hatderman (7 Kan. 50) 229 
 
 V. Inhabitants (1 Met. (Mass.) 
 
 286) 486 
 
 V. Jasper Co. (101 U. S. 693) 510, 
 538,539 
 II. Jasper Co. (3 Cent. Law Jour. 
 
 321) 538 
 
 Ansley v. Wilson (50 Ga. 418) 813 
 
 An tones v. Eslava (9 Port. (Ala.) 527) 627, 
 
 629, 645 
 Appleby v. Mayor (15 How. Pr. 428) 451, 
 
 463 
 Applegate ». Ernst (3 Bush, 648) 787 
 Arbegust v. Louisville (2 Bush, 271) 790 
 Arents v. Commonwealth (18 Gratt. 
 
 750) 553 
 
 Argenti v. San Francisco (16 Cal. 
 
 255) 118, 444, 453, 456, 458, 467, 
 476, 487, 610, 751 
 Argus Co. V. Albany (55 N. Y. 495) 444 
 Arimond v. Green Bay, etc. Co. (31 
 
 WU. 316) 1005, 1072 
 
 Arkwright v. Cautrell (7 Ad. & E. 
 
 665) 251 
 
 Arlington v. Merrick (2 Saund. 403) 243 
 
TABLE OF CASES CITED. 
 
 XXI 
 
 Armington v. Barnett (15 Vt. 745) 580 
 Armstrong County v. Clarion County 
 
 (66 I-a. St. 218) 939 
 
 Armstrong v. Commissioners (4 
 
 Blaokf. 208) 76 
 
 ». Dalton (4 Dev. (N. C.) 568) 668, 
 
 673 
 V. St. Louis (69 Mo. 309) 605 
 
 Armsworth v. Southeastern Railway 
 
 Co. (11 Jur. 760) 1042 
 
 Arnold w. Blaker (L. R. 6 Q.B. 433) 627 
 V. Bridge Cq. (1 Duvall (Ky.), 
 
 372) 588, 621 
 
 V. Cambridge (106 Mass. 852) 796, 
 
 921 
 
 V. Holbrooke (L. R. 8 Q. B. 96) 376, 
 
 627, 1025 
 
 V. Poole (4 M. & G. 860) 175 
 
 V. Shields (5 Dana(Ky.), 18) 606, 929 
 
 Arnot V. McClure (4 Denio, 45) 599 
 
 Arnott V. Bradley (23 U. C. C. P. 1) 238 
 
 Arnoult v. New Orleans (11 La. An. 
 
 54) 71, 213 
 
 Arrowsmith v. New Orleans (24 La. 
 
 An. 194) 629, 638 
 
 Ashbrook v. Commonwealth (1 Bush, 
 
 139) 172 
 
 Ash V. People (11 Mich. 347) 143, 357, 359 
 385, 388, 389 
 Ashbury v. Roche (L. E. 7 H. L. C. 
 
 653) 461 
 
 Ashley v. Port Huron (35 Mich. 296) 974, 
 996, 1005, 1071, 1072, 1074 
 u. Port Huron (15 Alb. L. J. 
 
 81) 1069 
 
 V. Reynolds (2 Stra. 916) 942 
 
 Ashton V. Ellsworth (48 III. 299) 322, 347 
 
 Ashville v. Means (7 Ired.Law, 406) 399, 
 
 768, 764 
 
 Askew w. Hale Co. (54 Ala. 639) 29, 31, 
 
 89, 961, 1009 
 
 V. Manning (38 U. C. Q. B. 345) 882 
 
 Askinp. London (lU.C.Q. B. 292) 254 
 
 Aspinwall v. Knox County (21 How. 
 
 (U. S.) 539) 549 
 
 V. Jo Daviess County (22 How. 
 
 364) 96, 184. 189, 623, 529, 532, 
 
 633, 542, 550, 765, 843 
 
 Assault V. Austin (36 Cal. 691 ) 418 
 
 Assessors v. Commissioners (3 Brews. 
 
 833) 190 
 
 Astor in re (50 N. Y. 363) 71 
 
 Astor (J. J.) V. New York (62 N. Y. 
 
 680) 128, 795 
 
 Astor (W. B.) V. New York (62 N. Y. 
 
 567) 128, 297 
 
 Atchison, etc. v. Garside (10 Kan. 552) 698, 
 
 700, 705 
 Atchison, etc. Co. v. Maquillon (12 
 
 Kan. 301) 105 
 
 V. Bartholnw (4 Kan. 124) 65, 66, 67 
 ». Butcher (3 Kan. 104) 105, 188, 624 
 V. Byrnes (22 Kan. 65) 476 
 
 V. ChalUs (9 Kan. 603) 1068, 1072, 
 1073, 1078 
 
 Atchi$on </. Jansen (21 Kan. 660) 
 
 1009, 1029, 1089 
 
 V. King (9 Kan. 550) 342, 1021, 1037, 
 
 1041, 1047 
 
 V. Twine (9 Kan. 350) fl57 
 
 Athearn v. District (33 la. 105) 314 
 
 Atkms V. Randolph 31 Vt. 226) 96, 97, 
 
 823 
 Atkinson v. Railroad Co. (15 Ohio St. 
 
 21) 66, 67 
 
 Atlanta w. Perdue (53 Ga. 607) 1029, 
 
 1051, 1052 
 
 u. Railroad Co. (59 Ga. 251) 896 
 
 V. Railroad Co. (53 Ga. 120) 590 
 
 V. White (33 Ga. 229) 385 
 
 K. Wilson (59 Ga. 544) 1018 
 
 Atlantic, etc. Railroad Co. v. Cleino 
 
 (2 Dillon C. C. 175) 919/ 
 
 Attorney-General i;. Aspinwall(2 M. & 
 
 C. 613) 176, 230, 432, 900, 901 
 V. Benzie (84 Mich. 211) 166 
 
 V. Birmingham (4 K. & J. 528) 381 
 V. Birmingham (3 Law Rep. Eq. 
 
 552) 903 
 
 V. Birmingham, etc. (4 De G. & 
 
 Sra. 490) 914 
 
 V. Boston (123 Mass. 469) 829, 856, 
 859, 860, 888, 897, 900, 906, 914 
 V. Boston (123 Mass. 460) 855 
 
 V. Boulton (21 Grant (Can.), 598) 631 
 V. Bowman (2 B. & P. 632) 428 
 
 V. Bradford (L. R. 2 Eq. 71) 381 
 
 V. Bradley (36 Mich. 447) 71, 213 
 V. Brown (1 Swanst. 265) 903 
 
 V. Brown (24 N. J. Eq 89) 383 
 
 V. Colney (L. R. 4 Ch. 146) 381 
 
 V. Detroit (41 Mich. 224) 466, 466 
 V. Detroit (2 Mich. C. C. 235) 905 
 V. Davis (44 Mo. 131) 272 
 
 V. Dublin (1 Bligh, N. R, 812) 899, 
 903, 914 
 V. Earl Clarendon (17 Ves. 491) 278 
 V. Ely (4 Wis. 420) 225 
 
 V. Exeter (51 Eng. Ch. 507) 903 
 
 V. Gooderich (5 Grant (Can.), 
 
 Rep. 402) 631, 650 
 
 V. Gower (9 Mod. 226) 197 
 
 V. Hackney, etc. (L. R. 20 Eq. 
 
 626) 1070 
 
 V. Heelis (2 Sim. & St. 67) 900, 903 
 V. Heishon (18 N. J. Eq. 410) 655, 656, 
 
 657 
 V. Holihan (29 Mich. 116) 213 
 
 V. Insurance Co. (9 Paige,Ch. 470) 482 
 V. Kerr (2 Beav. 420) 205 
 
 V. Lake County (33 Mich. 289), 166 
 V. Lathrop (24 Mich. 235) 462 
 
 V. Leeds (L. R. 5 Ch. App. 588) 1070 
 V. Leicester (9 Beav. 546) 205, 903 
 V. Litchfield (13 Sim. 647) 146, 901 
 V. Litchfield (11 Beav. 120) 230, 
 
 903 
 
 .,. Liverpool ( 13 Eng. Ch. 843) 899, 
 
 902, 914 
 
 V. Lock (3 Atk. 164) 127 
 
xXii 
 
 TABLE OF CASES CITED. 
 
 Attorney-General v. Mayor, etc. of 
 
 New York (3 Duer. 119) 126 
 i: Mayor (2 M. & C. 406) 176, 473 
 f. Metropolitan Railroad Co. (125 
 
 Mass. 515) 715 
 
 V. Molson (10 Grant (Can.), 436) 631 
 V. Nepeau Road Co. (2 Grant 
 
 (Can.), 626) 661 
 
 V. Norwich (2 My. & Cr. 406) 174, 176 
 
 II. Norwich (16 Sim. 225) 901 
 
 ■ V. Parker (3 Atk. 576) 223 
 
 V. Paterson (1 Stock. (N. J.) 624) 606, 
 
 896 
 V. Plank Road Co. (11 Wis. 42) 782 
 u. Plymouth (9 Beav. 67) 897, 903 
 V. Poole (4 My. & Cr. 17 ) 230, 432 
 900, 901 
 V. Radloff (10 Exchq. 84) 427 
 
 V. Railroad Co. (20 N. J. Eq. 530) 702 
 V. Railroad Co (19 N. J. Eq. 586) 702 
 V. Railroad Co. (35 Wis. 425) 65 
 
 V. Reynolds (1 Eq. Cag. Ab. 131) 914 
 V. Rye (7 Taunt. 646) 207 
 
 V. Salem (103 Mass. 138) 888, 900, 914 
 V. Shrewsbury (6 Bear. 220) 194, 
 562, 567 
 V. Siddam (1 C. & J. 220) 428 
 
 V. Steward (20 N. J. Eq. 415) 379 
 .,. Sullivan (32 L. J. Ex. 92) 428 
 
 I). Tudor Ice Co. (104 Mass. 239) 914 
 V. Otica Ins. Co. (2 Johns. Ch. 371 ) 879 
 V. Wigan (34 Eng. Ch. 52) 902 
 
 V. Wilson (9 Sim. 30) 205, 897, 900, 902 
 V. Worcester (2 Phil. 3) 205 
 
 Atwater v. Baltimore (31 Md. 462) 980 
 Auckland v. Westminster, etc. (L. R. 
 
 7 Ch. 597) 956 
 
 Auditor v. Davies (2 Pike (Ark.), 494) 43 
 
 Augusta Bk. v. Augusta (49 Me. 507) 180 
 
 Augusta V. Dunbar (50 Ga. 387) 764, 
 
 783, 788, 812 
 
 c. Hafers (59 Ga. 151) 1060 
 
 V. Leadbetter (16 Me. 45) 41, 471, 934 
 
 V. Perkins (3 B. Mon. 437) 647 
 
 V. Perkins (8 B. Mon. 207) 638, 644, 
 
 650 
 
 V. Railroad Co. (26 Ga. 651) 787 
 
 V. Sweeney (44 Ga. 463) 255 
 
 Aull V. Lexington (18 Mo. 401) 373 
 
 Aurora v. Colshire (55 Ind. 484) 1026 
 
 V. Gillett (56 lU. 132) 1000, 1068, 1071 
 
 17. Hillman (90111.61) 1049 
 
 V. Love (93 111. 521) 1066 
 
 V. Pulfer (56 III. 270) 1019, 1020, 1022, 
 
 1040, 1068 
 
 ... Reed (57 111. 29) 683, 1000, 1068, 
 
 1070, 1071 
 
 V. Reed (11 Am. Rep. 1) 1075 
 
 V. West (9 Ind. 74) 76. 132, 179, 189 
 
 V. West (22 Ind. 88) 179, 188, 479, 
 
 524, 526, 546 
 
 Austin's Case (1 Ventr. 183) 1033 
 
 Austin V. Coggeshall (12 R. I. 329) 88, 176 
 
 V. Colony (51 Iowa, 102) 147 
 
 t;. French (7 Met. 126) 243 
 
 Austin i>. Guardians, etc. (L. R. 9 C. 
 
 F. 91) 459 
 
 V. Murray (16 Pick. 126) 168, 338, 
 
 374, 394, 413 
 
 V. Santa Fe (45 Tex. 27) 778 
 
 Avery?;. Springport (14 Blatchf. 272) 542 
 
 Ayer». Norwich (39 Conn. 376) 1022, 1027 
 
 Ayeridge v. Commissioners (60 Ga. 
 
 404) 72 
 
 Ayers v. Lawrence (59 N. Y. 192) 904, 
 
 906, 913 
 
 Bab V. Clerk (Moore, 411) 353 
 
 Babbitt;. Savoy (3 Cush. 530) 174 
 
 Babco^ V. Buffalo (56 N. Y. 268) 122, 379 
 
 V. Goodrich (47 Cal. 488) 159, 449, 
 
 482 840 
 
 Babson v. Eockport (101 Mass. 93) 1018 
 
 Baby v. Baby (5 U. C. Q. B. 510/ 441 
 
 V. Baby (8 U. C. Q. B. 76) 242 
 
 BacheUer v. Pinkham (68 Me. 253) 264 
 
 Bacher's Case (20 Pa. St. 425) 276 
 
 Backman v. Charlestown (42 N. H. 
 
 125) 454, 460 
 
 Backus V. Lebanon (11 N. H. 19) 582 
 
 Bacon v. Boston (3 Cush. (Mass.) 174) 726, 
 
 1014, 1024, 1025, 1029, 1039 
 
 ». Robertson (18 How. 480) 194, 195. 
 
 198 199 
 
 Badger «. United States (93 U. S. 599)'250, 
 
 878 
 Badgley i;. Bender (3 U. C. Q. B. O. S. 
 
 221) 631 
 
 Baes V. Hewitt (20 Wis. 460) 499 
 
 Bagg's Case (11 Coke, 93) 268, 273, 275 
 
 (2 Kyd, 52) 266 
 
 Baggr. Detroit (5 Mich. 336) 717, 749, 915 
 
 Bagley v. People (5 N. W. R. 415) 658 
 
 Bagot's Case (7 Edw. IV. 29) 59 
 
 Bailey's Case (2 Denio, 433) 1054 
 
 Bailey in re (2 Cow. 479) 825 
 
 ». Fairfield (Brayt. (Vt.) 126) 1042 
 
 V. Mayor, etc. of N. Y. (2 Denio, 
 
 433) 978, 984, 1054 
 
 s. Mayor, etc. of N. Y. (3 Hill, 531) 89, 
 
 90, 264, 957, 968, 988, 991, 
 
 992,993 
 
 V. Railroad Co. (4 Harring. (Del. ) 
 
 389) 652, 665 
 
 V. Wobum (126 Mass. 416) 974 
 
 Baileyville v. Lowell (20 Me. 178) 471 
 
 Bailiffs of Bridgenorth (2 Stra. 808) 870 
 
 Bainbridge v. Sherlock (29 Ind. 864) 137 
 
 Baird v. Bank (11 Serg. & Rawle, 411) 570 
 
 V. Rice (63 Pa. St. 489) 625, 643, 645, 
 
 652,665 
 
 Baker v. Boston (12 Pick. 184) 121, 122, 
 
 167, .394, 970, 985 
 
 V. Chambles (4 Greene (la.), 428) 446 
 
 V. Cincinnati (11 Ohio St. 534) 738, 
 
 739 943 944 
 
 V. Commonwealth (19 Pa. St 412) 657 
 
 V. Gartside (86 Pa. St. 498) 807 
 
 ». Johnson Co. (33 Iowa, 151) 445, 
 
 480, 486, 667 
 
TABLE OF CASES CITED. 
 
 xxm 
 
 Baker v. Johnson (41 Me. 15) 821, 822 
 
 V. Johnston (21 Mich. 319) 625, 626, 
 
 630, 631, 638, 639, 640, 642, 643, 
 
 644 
 
 V. Pittsburg (4 Pa. St. 49) 256 
 
 V. Portland (58 Me. 199) 323, 1023, 
 
 1041 
 V. Savage (45 N. Y. 191) 675, 1025, 
 
 1029 
 B. Shephard (24 N. H. 212) 261, 
 
 288 
 o. State (27 Ijnd. 485) 265, 327 
 
 V. St. Paul (8 Minn. 491) 6-25, 626 
 V. Utica (19 N. Y. 326) 254, 476 
 
 t>. Windham (13 Me. 74) 175,310 
 V. Young (12 Gratt. 303) 282 
 
 Balch V. Commissioners (103 Mass. 
 
 106) 598 
 
 Baldwin v. Bangor (36 Me. 518) 604 
 
 V. Buffalo (35 N. Y. 375) 631 i 
 
 V. Calkins (10 Wend. 166) 924 
 
 I'. Dealers (42 Ga. 325) 363 
 
 V. Green (10 Mo. 410) 116, 677 
 
 V. Murphy (82 111. 486) 363 
 
 V. Turnpike Co. (40 Conn. 238) 1022, 
 
 1035 
 Balfe V. Bell (40 Ind. 337) 774 
 
 Ball u. Armstrong (10 Ind. 181) 725, 1059 
 c.. Balfe (41 Ind. 221) 806 
 
 V. Brigham (5 Mass. 406) 923 
 
 V. Fagg (67 Mo. 481) 115, 677 
 
 V. Lappius (3 Oreg. 55) 819 
 
 V. Bay (L. R. 8 Ch. 467) 376 
 
 V. Winchester (32 N. H. 443) 960, 962, 
 
 1074 
 Ballard ». Davis (81 Miss. 525) 297 
 
 Baltimore v. Board of Police (15 Md. 
 
 376) 65, 77, 83, 237, 481, 765 
 
 i;. Bouldin (23 Md. 328) 599, 800 
 
 V. Brannan (14 Md. 227) 1026, 1037 
 
 V. Cemetery Co. (7 Md. 517) 775 
 
 V. Chase (2 Gill & J. 876) 811, 812 
 
 V. Clunet (23 Md. 449) 324, 412, 585, 
 
 587, 606 
 
 „. Eschback (18 Md. 276) 441, 598, 
 
 797 970 973 
 
 o. Gill (31 Md. 375) 121,' 168,' 909, 
 
 910,916 
 
 V. Horn (26 Md. 194) 103, 587, 900, 
 
 916 
 .,. Lefferman (4 Gill (Md.) 425) 942, 
 
 944 
 V. Marriott.(9 Md. 160) 826, 1021, 
 
 1037 
 V. Musgrave (48 Md. 272) 441, 602, 
 
 603 
 V. Pennington (15 Md. 12) 1037, 1046, 
 
 1064 
 V. Porter (18 Md. 284) 103, 900, 910, 
 916, 918, 920 
 V. Poultney (26 Md. 18, 107) 281, 296, 
 455, 957 
 V. Radecke (49 Md.) 834, 346 
 
 V. Railroad Co. (31 Md. 50) 236, 896, 
 
 899 
 
 Baltimore v. Railroad Co.(6 Gill (Md.), 
 
 288) 787 
 
 V. Reynolds (20 Md. 1) 441,442, 448, 
 
 462 
 V. Root (8 Md. 102) 130, 131 
 
 V. St. Agnes, etc. (48 Md. 419) 609, 
 
 974 
 
 «. State (16 Md. 376) 70, 773 
 
 V. Turnpike (5 Binn. 484) 298 
 
 V. White (2 Gill, 444) 184, 135, 136, 
 
 137, 139, 140 
 
 Bamford v. Turnley (3 B. & S. 62) 376 
 
 Banbury's Case (10 Mod. 346) 194 
 
 Bancroft v. Cambridge (126 Mass. 
 
 438) 168 
 
 V. Lynnfield (18 Pick. 566) 40, 174, 
 
 175 
 Banet v. Henderson (4 Bush (Ky.), 
 
 256) 770 
 
 Bangan v. Mann (59 111. 492) 6;-;3 
 
 Bangor v. Lansil (51 Me. 521) 1068 
 
 Bangs u. Snow (1 Mass. 181) 117 
 
 Bank v. Bank (5 Wheat. 326) 446 
 
 V. Bank (92 U. S. 122) 9.34 
 
 Bank, etc. v. Boget (61 Tex. 354) 787 
 
 V. Bridges (30 N. J. L. 112) 113, 114 
 
 u. Brown (26 N. Y. 467) 62, 63, 327 
 
 V. ChiUicothe (7 Ohio, Pt. 2, 31) 118, 
 
 145, 146, 149, 155 
 
 V. City Council (3 Eich.Law, 342) 787 
 
 V. Dandridge (12 Wheat. 64) 240, 241, 
 
 242, 443, 465 
 
 V. Davis (1 McCart. Ch. 286) 114 
 
 V. Dibrell (3 Sneed, 879) 130 
 
 w. Earle (ISPet. 519) 660 
 
 V. Farmington (41 N. H. 32) 480, 483 
 
 V. Franklin Co. (65 Mo. 105) 481 
 
 V. Gottschalk (14 Pet. 19) 446 
 
 V. Hines (3 Ohio St. 1) 738 
 
 V. Kirby (108 Mass. 497) 500 
 
 V. Lockwood (2 Barring. 8) 200 
 
 I). Mayor (43 N. Y. 189) 940, 941, 944, 
 
 976, 977, 985 
 
 V. Mayor (Dudley, 130) 787 
 
 V. Navigation Co. (3 La. An. 294) 480 
 
 (J. New Orleans (12 La. An. 42) 942 
 
 ». Niles (1 Doug. 401) 668,570 
 
 D. Ogden (2Wall. 57) 626 
 
 V. Patterson (7 Cranch, 299) 220,436. 
 
 446, 447, 450, 455, 460, 483 
 
 V. Petway (3 Humph. (Tcnn.) 
 
 622) 247 
 
 V. Poitiaux (3 Rand. 136) 670 
 
 V. Railroad Co. (13 N. Y. 599) 479 
 V. Railroad Co. (30 Vt. 159) 218 
 
 V. School Dist. (39 Iowa, 490) 161 
 V. Seton (1 Pet. 299) 802 
 
 u. Skelby (1 Black, 4.36) 774 
 
 V. Smedes (3 Cowen, 662) 441 
 
 V. Supervisors (25 N. Y. 312) 896, 
 • . 919 
 
 B. Supervisors (5 Denio, 517) 174 
 p. Town Council (10 Rich. 104) 787 
 V. United States ( 1 Greene (la.), 
 . 668) 326 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 Bank, etc. v. United States (5 How. 
 
 U. S. 213) 893 
 
 V. Wister (2 Pet. 318) 220 
 
 Bank of Ireland v. Evans (33 E. L. & 
 
 Eq. 33) 218 
 
 Bank of Rome v. Rome (18 N. Y. 38) 63, 
 
 70, 155, 179, 180, 188 
 
 Bank of Rome v. Rome (19 N. Y. 20) 547 
 
 Bankhead v. Brown (25 Iowa, 540) 593, 
 
 595 
 Banks V. Billings (4 Pet. 514) 774 
 
 Banton v. Wilson (4 Tex. 400) 835 
 
 Baptist Church b. McAtee (8 Bush 
 
 (Ky.), 508) 747, 775 
 
 V. Railroad Co. (6 Barb. 213) 653 
 
 Barber ». Essex (27 Vt. 62) 1064 
 
 V. Pelson (2 Lev. 252) 408 
 
 w. Rollinson (I C. &M. 330) 238 
 
 V. Roraback (36 Mich. 399) 654 
 
 V. Roxbury (11 Allen (Mass.), 
 
 318) 1016, 1017, 1028, 1031, 1033 
 
 Barbour v. Ellsworth (67 Me. 294) 973 
 
 Barbour Co. v. Horn (48 Ala. 566) 961, 
 
 1009, 1041 
 
 Barclay in re (11 tr. C.Q. B. 470) 205 
 
 V. Howell, etc. (6 Pet. (U. S.) 498) 629, 
 
 632, 633, 635, 636, 637, 638, 
 
 639, 650, 656, 666, 686 
 
 Barclay v. Levee Commrs. (93 U. S. 
 
 258) 200, 201, 202, 214 
 
 Bardwellp. Jamaica (15 Vt. 438) 719 
 
 Barlow m re (30 L. J. Q. B. 271) 822 
 
 V. Norman (2 W. Bl. 959) 178 
 
 Bargate v. Shortridge (5 Clark. H. L. 
 
 297) 510 
 
 Barker v. Commonwealth ( 19 Pa. St. 
 
 412) 723 
 
 V. Loomis (6 Hill, 463) 146 
 
 V. State (18 Ohio, 514) 793 
 
 Barling v. West (29 Wis. 307) 332, 336, 
 
 337 
 
 Barnes v. Barnes (6 Vt. 388) 110 
 
 V. Beloit (19 Wis. 93) 920 
 
 V. Dist. of Columbia (91 U. S. 
 
 540) 34, 678, 979, 991, 1026, 
 
 1037, 1044, 1045 
 
 V. Newton (46 Iowa, 567) 1029, 1052 
 
 V. Pennell (2 H. of L. Cas. 497) 262 
 
 V. Ward (9 C. B. 392) 1059 
 
 Bamet v. Jefferson County (9 Watts, 
 
 166) 217 
 
 V. Newark (28 HI. 62) 340 
 
 Barney «. Bush (9 Ala. 345) 261 
 
 „. Keokuk (94 U. S. 324) 13.3, 134, 
 
 1-37, 138, 633, 639, 652, 657, 662, 
 
 688, 696, 698; (4 DUl. 593) 
 
 134, 137, 138, 662, 688, 698 
 Barnwell ;;. McGrath (McMuUen (S. 
 
 C.) 174) 668 
 
 Bamy v. Lowell (98 Mass. 570) 985 
 
 Barr b. Deniston (19 N. H. 170) 912, 918 
 
 r. Jackson (1 Phillips, 582) 881 
 
 Barraclough v. Johnson (8 A. & E. 
 
 99) 627 
 
 Barre v. Greenwich (1 Pick. 120) 
 
 223 
 
 Barrett v. Brooks (21 Iowa, 144) 18, 675, 
 
 676, 721 
 V. County Court (44 Mo. 201) 544 
 V. Henderson (4 Bush. 255) 781 
 
 V. New Orleans (13 La. An. 105) 558 
 I). Schuyler Co. (44 Mo. 197) 479 
 Barron v. Baltimore (7 Pet. 248) 580; 
 
 (2 Am. Jur. 203) 138, 1066, 1076 
 B. Davis (46 Mo. 391) 907, 911 
 
 Barry v. Lowell (8 Allen (Mass.), 127) 
 
 1068, 1073, 1076 
 u. Mer. Ex. Co. (1 Sandf. Oh. 
 
 280) 145, 155 
 
 V.St. Louis (17 Mo. 121) 1054, 1056, 
 ^ 1057 
 
 Barter v. Commonwealth (3 Pa. 253) 
 
 345, 353, 368, 405, 421, 425, 430, 
 
 669, 680, 687 
 
 Bartho v. Salter (Latch, 54) 257 
 
 Bartle v. Ces Moines (38 Iowa, 414) 164 
 
 Bartlett v. Amherstberg (14 U. C. 
 
 Q. B. 152) 459 
 
 V. Bangor (67 Me. 460) 620 
 
 V. Boston Gas Co. (117 Mass. 
 
 533) 1061 
 
 0. Crosier (17 Johns. 439) 264, 720, 
 
 850, 962 
 
 V. Kittery (68 Me. 358) 1028, 1048, 
 
 1053 
 Barto V. Himrod (4 Seld. 483) 63, 180 
 Barton v. Montpelier (30 Vt. 650) 1021 
 V. New Orleans (16 La. An. 817) 
 
 253 254 373 
 
 V Syracuse (36 N. Y. 54) 986, 1049, 
 
 1052, 1053, 1067, 1074, 1075, 1077, 
 
 1078 
 
 Baskins v. Robinson (53 Ga. 613) 389 
 
 Bass 0. Columbus (30 Ga. 845) 540 
 
 V. Fontleroy (11 Tex. 698) 83,91, 106 
 
 Bassett c. Barbur (11 La. An. 672) 838 
 
 V. Porter (4 Cush. 487) 110 
 
 V. St. Joseph (53 Mo. 290) 383, 1018, 
 
 1022, 1025, 1035, 1048 
 
 Bassford In re (50 N. Y. 509) 341 
 
 Bateman v. Bluck (14 E. L. & Eq. 69) 631 
 
 V. Hamilton (33 U. C. Q. B.251) 1053 
 
 V. Mayor (3 H. & N. 322) 436, 441 
 
 V. Megowan (1 Met. (Ky.) 533) 
 
 229 432 
 
 V. Mid Wales Railroad Co. (L. R.' 
 
 etc. 1 C. P. 510) 144, 146, 152, 
 
 155, 469, 489 
 
 Bates V. Mobile (46 Ala. 158) 784, 788 
 
 V. Plymouth (14 Gray, 163) 314, 
 
 837, 856 
 
 V. Winters (97 U. S. 83) 5-% 
 
 Bath ». County Commrs. (36 Me. 74) 311 
 
 Baton Rouge v. Deering (15 La. An. 
 
 208) 419 
 
 Battersby v. New York (7 Daly, 16) 1020 
 Battle V. Mobile (9 Ala. 234) 731, 784 
 Batty V. Duxbury (24 Vt 155) 1027, 
 
 1063, 1064 
 Baudier v. Cape Girardeau (11 C. L. 
 
 J. 15) 1025. 1039 
 
TABLE OF CASES CITED. 
 
 XXV 
 
 Bauer v. Franklin Co (51 Mo. 205) 485 
 Bauman v. St. Pancreas (L. R. 2 Q. 
 
 B. 528) , 726 
 
 Baumgard v. Mayor (9 La. An. 119) 973 
 Baxendale «. London, etc. Co. (10 
 
 Exdi. 35) 1062 
 
 Baxter v. Commonwealth (3 Pa. 253) 349 
 
 V. Kerr (23 Grant (Can.) 367) 902 
 
 V. Providence (12 U. I. 310) 1068, 1070 
 
 w. Turnpike Co. (22 Vt. 114) 684, 
 
 962, 1015 
 
 Bayergue v. San Francisco (1 Mc- 
 
 AU. 175) 487 
 
 Bayley v. Jameson (L. R. 1 C. P. 329) 631 
 
 V. Taber (5 Mass. 286) 538 
 
 Bayne «. Jenkins (66 N. C. 356) 869 
 
 Beach v. Frankenberger (4 W. Va. 
 
 712) 1062 
 
 V. Haynes (12 Vt. 15) 559, 562, 570 
 
 V. Leahy (11 Kan. 23) 29, 31, 66 
 
 Beacliy v. Lamkin (1 Idaho, 48) 866, 872 
 
 Beals i\ Amador Co. (35 Cal. 624) 752 
 
 V. Rubber Co. (11 R. I. 381) 775 
 
 Beamair v. Board of Police (42 Miss. 
 
 238; 15 Wall. 566) 146 
 
 Bean v. Jay (23 Me. 117) 471 
 
 V. Thompson (19 N. H. 290) 261 
 
 Bearce v. Fossett (34 Me. 575) 286 
 
 Beard l: Brooklyn (31 Barb. 142) 475, 476 
 
 Beardslee v. French (7 Conn. 125) 670 
 
 Beardsley v. Bank (31 Barb. 619) 788 
 
 V. Smith (16 Conn. 368) 572, 838, 841, 
 
 960, 961, 962 
 
 Beatty v. Gilmore (16 Pa. St. 468) 657, 
 
 1040, 1041, 1055, 1059 
 
 V. Knowles (4 Pet. 152) 763 
 
 V. Kurtz (2 Pet. 566) 629, 645 
 
 Beauchamp v. Supervisors (45 111. 274) 911 
 
 Beaufort v. Duncan (1 Jones Law, 
 
 234) 558, 577 
 
 Beaver Dam v. Frlngs (17 Wis. 398) 559 
 Beohtel v. Carslake (3 Stockt. (N. J. 
 
 Eq.) 500) 659 
 
 Beck V. Hanscom (29 N. H. 213) 247, 299 
 Beckett v. Midland R. W. Co. (L. R. 
 
 3 C. P. 82) 1005 
 
 Beckwith v. Racine (7 Biss. 142) 202 
 
 V. Philby (6 B. & C. 635) 238 
 
 Bedford Union v. Commrs. etc. (7 
 
 Exch. 777) 742, 756, 775 
 
 Beecher w. Bridge Co. (24 Conn. 491) 
 
 1041, 1042 
 B. People (38 Mich. 289) 680 
 
 Beekman Street in re (4 Bradf. 503) 374 
 Beekman v. Railroad Co. (3 Paige, 
 
 Ch. R. 45) 609, 614 
 
 Beers v. Arkansas (20 How. 527) 43 
 
 V. Beers (4 Conn. 535) 431, 614 
 
 V. Botsford (3 Day (Conn.) 159) 961 
 
 V. Phoenix Glass Co. (14 Barb. 
 
 358) 145 
 
 Beesman v. Peoria (16 111. 484) 417, 418 
 
 Beggar in re (34 C Q. B. 144) 882 
 
 Belcher v. Farrer (8 Allen, 325) 373 
 
 Belknap v. Kheinhart (2 Wend. 375) 263 
 
 Bell County v. Alexander (22 Tex. 
 
 350) 562, 567 
 
 Bell in re (2 Up. Can. Com. Fleas Rep. 
 
 507) 174, 175 
 
 (3 Up. Can. Com. Pleas Rep. 400) 174, 
 
 175 
 V. Foutch (21 Iowa, 119) 675, 676, 721 
 V. Gough (23 N. J. L. 624) 658 
 
 u. Pierce (51 N. Y. 12) 783 
 
 V. Railroad Co. (25 Pa. St. 161) 649 
 Bellfontaine Railroad Co. v. Hunter 
 
 (33 Ind. 335) 1051 
 
 Bellinger v. Gray (61 N. Y. 610) 942 
 
 V. N. Y., etc. R. R. Co. (23 N. Y 
 
 42) 995 
 
 Belmont v Railroad Co. (47 Barb. 
 
 314) 788 
 
 Bellmyer v. Marshalltown (44 Iowa, 
 
 564) 445 
 
 Bellows V. Bank (2 Mason C. C. 43) 208 
 Bellville v. Stokey (23 111. 441) 626 
 
 Beloit V. Morgan (7 Wall. 619) 480, 548 
 Belton V. Baxter (54 N. Y. 245) 676, 
 
 1020, 1022 
 Bemis v. Becket (1 Kan. 226) 213 
 
 Benbow v. Iowa City (7 Wall. 313) 842, 
 
 844 
 Benedict v. Denton (Walk. Ch. 336) 219 
 V. Fond du Lac (44 Wis. 495) 
 
 1050, 1051 
 0. Goit (3 Barb. 459) 661, 998 
 
 Benefield v. Hines (13 La. An. 420) 363 
 Beniteau v. Detroit (41 Mich. 116) 464 
 Benjamin v. Wheeler (8 Gray,. 409) 122, 
 995, 998, 1005 
 Bennett v. Birmingham (31 Pa. St. 15) 
 
 357, 761, 789 
 0. Buffalo (17 N. Y. 383) 815, 940, 977 
 V. Fisher (26 Iowa, 497) 587 
 
 V. New Orleans (14 La. An. 120) 
 
 950, 979, 995, 1068 
 
 i;. People (30 III. 389) 357 
 
 Bennington v. Smith (29 Vt. 254) 677 
 
 Benoist v. Carondelet (8 Mo. 240) 220 
 
 K. St. Louis (15 Mo. 668) 793 
 
 !). St. Louis (19 Mo. 179) 768, 769 
 
 Benoit «. Conway (10 Allen, 525) 120, 155 
 
 V. Wavne County (20 Mich. 176) 259 
 
 Benson r. Albany (24 Barb. 248) 547 
 
 u. Carmel (8 Me. 112) 484 
 
 V. Mayor (24 Barb. 248) 70 
 
 (10 Barb. 223) 143 
 
 V. Monroe (7 Cush. 125) 942, 946 
 
 Bentley v. Armstrong (8 W. & S. 40) 1070 
 
 V. County Commrs., etc. (25 Minn. 
 
 259) 116, 443, 456 
 
 V. Phelps (27 Barb. 524) 259 
 
 Benton St. Case (9 La. An. 446) 789 
 
 Benton v. Jackson (2 Johns. C. H. 325) 60 
 
 Bentz V. Armstrong (8 W. & S. (Pa.) 
 
 40) 1069 
 
 Berdsall w. Russell (29 N. Y. 220) 552 
 
 Bergen v. Clarkson (1 Halst. 852) 166, .301, 
 
 349, 353, 559, 812 
 
 V. State (32 N. J. L. 490) 412 
 
XXVI 
 
 TABLE OF CASES CITED. 
 
 Berks Co. v. Myers (6 Serg. & Bawle, 
 
 12) 208 
 
 Berlin v. Gorham (34 N. H. 266) 62, 75 
 Berliner v. Waterloo (14 Wis. 378) 538, 
 
 648 
 Berryman v. Port Burwell Har. (24 
 
 U. C. Q. B. 34) 141 
 
 V. Wise (4 Term B. 366) 261 
 
 Bestor v. Powers (7 HI. 126) 220 
 
 Bethane v. Hnghes (28 Ga. 660) 885, 389 
 V. Turner (1 Me. Ill) 646 
 
 Betts V. WiUiamsburg (18 Pa. St. 26) 610 
 Beurojohn v. Mayor (27 Ala. 58) 375 
 Beveridge v. Creelman (42 U. C. Q. B. 
 
 29) 627 
 
 Beverly v. Barlow (10 U. C. C. P. 
 
 178) 206, 244 
 
 V. Barlow (7 U. C. C. P. 117) 244 
 Beygeh i>. Chicago (4 Chi. Leg. News, 
 
 121) 808 
 
 Bibb Co. V. Railroad Co. (4 6a. 646) 7«7 
 
 Biddle t;. Shippen (1 Dallas, 19) 625 
 
 V. Willard ( 10 Ind. 63) 247, 827 
 
 Bietry u.New Orleans (24 La. An. 21) 478 
 
 Bigelow V. Chicago (90 111. 49) 796 
 
 V. Hillman (37 Me. 58) 303, 327 
 
 V. Louisville (3 Fish. Pat. Cas. 
 
 602) 465, 969 
 
 ji. Perth Amboy (1 Dutch. 297) 312, 
 313, 471 
 V. Railroad Co. (2 Head, 624) 598 
 V. Randolph (14 Gray, 541) 964, 965, 
 982 993 1033 
 V. Rutland (4 Cush. (Mass.)' 247) 1023 
 V. West Wisconsin, etc. Co. (27 
 
 Wis. 478) 620 
 
 V. Weston (3 Pick. (Mass.) 267) 1027 
 
 Big Grove v. Wells (65 III. 263) 482 
 
 Bigg V. London (L. R. 15 £q. 376) 1005 
 
 Bigler ». New York (5 Abb. N. Cas. 
 
 51) 464, 476 
 
 BUbie V. Lumley (2 East. 469) 946 
 
 BiUinger v. Gray (51 N. Y. 610) 778 
 
 BiUs V. Belknap (36 Iowa, 583) 663 
 
 V. Kinson (21 N. H. 448) 177 
 
 D. Stanton (69 HI. 51) 552 
 
 Bingham v. Camden (29 N. J. Eq. 464) 230 
 Bird ». Wasco Co. (3 Oreg. 282) 2.53 
 
 Birdsall v. Clark (73 N. Y. 73) 123, 124 
 Birmingham v. Anderson (40 Pa. St. 
 
 506) 635 
 
 Biscoe 0. Coulter (18 Ark. 423) 773 
 
 Bisher v. Richards (9 Ohio St. 495) 720 
 
 Bishop V. Cone (3 N. H. 613) 808 
 
 V. Macon (7 Ga. 200) 964 
 
 Bissell V. ColUns (28 Mich. 277) 684, 687 
 
 D. Jeffersonville (24 How. 87) 105, 
 
 302, 501, 509, 616, 524, 540, 644, 
 
 647 648 649 
 
 V. Kankakee (64 lU. 249) ' 187| 843 
 
 V. N. Y. etc. R.R. Co. (23 N. Y. 61) 
 
 632, 662, 697 
 
 V. Railroad Co. (22 N. Y. 258) 454 
 
 V. Saxton (77 N. Y. 191) 243 
 
 Black in re (1 Ohio St 30) 827 
 
 Black V. Baltimore (50 Md. 236) 60-? 
 
 u. Cohen (53 Ga. 621) 71, 481, 610, 
 
 540, 561 
 
 V. Baiboad Co. (58 Pa. St. 249) 658, 
 
 696,700 
 
 Blackborough v. Davis (1 Peere Wms. 
 
 48) 859 
 
 Blackburn in re (5 Ark. 21) 928 
 
 V. Walpole (9 Pick. 97) 288 
 
 Blackerby v. People (10 lU. 266) 873 
 
 Blackett v. Blizzard (9 B. & C. 851) 282 
 Blackstone v. Taft (4 Gray, 250) 214,216 
 ». White (41 Pa. St. 330) 110 
 
 BlackweU v. Toronto St. R. W. Co. 
 
 • (38 U. C. Q. B. 172) 1051 
 
 Bladen v. Philadelphia (60 Pa. St. 
 
 464) 161, 253, 444 
 
 Blagrave's Case (2 Sid. 6, 49) 277 
 
 Blairw. Forehand (100 Mass. 136) 177 
 
 Blaisdell v. Portland (39 Me. 113) 1018 
 
 Blake v. Buffalo (56 N. Y. 485) 243 
 
 V. Ferris (5 N. Y.48) 1055, 1056, 1057 
 
 V. Macon (53 Ga. 172) 468, 911 
 
 V. Newfield (4 Gray, Mass. 385) 1028 
 
 V. Railway Co. (18 Q. B. 93) 1042 
 
 ... St. Louis (40 Mo. 569) 1037, 1039, 
 
 1054, 1056 
 
 V. Sturdevant (12 N. H. 573) 261 
 
 Blakie v. Staples (13 Grant (Can.) 67) 902 
 
 Blanc V. Mayor (1 Martin (N. S.) 65) 781 
 
 Blanchard v. BisseU (11 Ohio St. 96) 211, 
 
 212, 321, 341 
 
 V. Blaclfstone (102 Mass. 343) 446 
 
 V. Porter (11 Ohio, 138) 139 
 
 Blanding v. Burr (13 Cal. 343) 63, 76, 101, 
 
 102, 749, 752, 765 
 
 Bleeker v. Ballon (3 Wend. 263) 773 
 
 Bleu V. Bear River (20 Cal. 602) 460 
 
 Bliss V. Ball (99 Mass. 597) 632, 662, 663, 
 
 686 
 V. Brooklyn (4 Fisher Pat. Cas. 
 
 596) 968 
 
 o. Krauss (16 Ohio St. 54) 748 
 
 Block t;. Jacksonville (36111.301) 342,365 
 
 i;. Commrs. (99 U. S. 686) 499 
 
 Blodgett V. Boston (8 AUen, 237) 694, 964, 
 
 1015 
 V. Royalston (17 Vt. 40) 640 
 
 Bloodgood V. Mohawk, etc. Co. (18 
 
 Wend. 9) 187,586,592,596,609 
 Bloom V. Xenia (32 Ohio St. 469) 806 
 Bloomer v. Stolley (5 McLean, 158) 327 
 Bloomfield & Co. v. Calkins (62N. Y. 
 
 386) 690, 713 
 
 Blooming Valley in n (66 Fa. St. 
 
 gg\ 211 213 
 
 Bloomington v. Bay (42 HI. 603) 1037, 
 
 1047, 1048, 1052 
 
 V. Brokaw (77 111. 194) 572, 573, 600, 
 
 999, 1067, 1068, 1071 
 
 V. Wahl (46 HI. 489) 389 
 
 Blufiton i;. SUver (63 Ind. 262) 928, 929 
 
 BIythe i>. Birmingham, etc. Works (4 
 
 Exch. H. and G. 781) 694 
 
 Board v. Boyle (9 Ind. 296) 456 
 
TABLE OF CASES CITED. 
 
 XXVU 
 
 Board v. Day (19 Ind. 450) 146, 675 
 
 V. Edson (18 Ohio St. 221) 647, 660 
 
 ...Fonda (77 N. Y. 360) 242 
 
 V. Grant (17 Miss. 77) 839, 869 
 
 V. McComb (92 U. S. 581) 818, 827 
 
 V. Municipality (6 La. An. 21) 79 
 
 V. Neidenberger (78 III. 58) 573 
 
 V. Patterson (56 111. Ill) 570 
 
 w. Pooley (11 La. An. 743) 865 
 
 V. Saunders (17 Ind. 437) 146 
 
 V. Schroeder (58111. 353) 354,43.3,961 
 
 V. Sellers (99 U. S. 624) 876 
 
 V. Shields (62 Mo. 247) 68 
 
 V. Strader (3 Harris (N. J.), 108) 719 
 
 Boardman v. Hayne (29 la. 339) 264, 265 
 
 Boaz y. Tate (43 Ind. 60) 238. 239 
 
 Bob 0. State (2 Yerg. 173) 923 
 
 Bobbett V. Dresher TlO Kan. 9) 866 
 
 Bodine v. Trenton (36 N. J. L. 198) 125 
 
 Bodkins «. Robinson (53 Ga. 613) 385 
 
 Bodmaa v. Am. Tract Soc. (9 Allen, 
 
 447) 208 
 
 Bodwic V. Fennell (1 WUs. 233) 404, 410, 
 
 411 
 Bogart V. Mayor (7 Cow. 158) 928 
 
 Bogert V Elizabeth (25 N. J. Eq. 295) 896 
 V. Indianapolis (13 Ind. 134) 374, 375 
 Hoggs V. Hamilton (2 Const. R. 381) 265 
 Boileaui'nre (2Par. (Pa.) 505) 226 
 
 Boiling V. Petersburg (8 Leigh, 224) 671 
 V. Petersburg (3 Rand. ( Va.) 563) 662, 
 
 664 
 Bolte V. New Orleans (10 La. An. 321) 346 
 Bolton II. Crowther (2 Dowl. & Ryl. 
 
 195 264 
 
 Bond 0. Hiestand (20 La. An. 139) 113, 811 
 
 V. Hoyt (13 Pet. 266) 947 
 
 V. Kenosha (17 Wis. 284) 740, 774 
 
 777, 778, 920 
 
 V. Newark (19 N. J. Eq. 376) 475, 477, 
 
 478, 806, 896 
 
 V. St. George (L. R. 6 C. P. 312) 223 
 
 Bonesteel v. Mayor (22 N. Y. 162) 446, 
 
 463, 464, 477 
 
 Bonner ». State (7 Ga. 473) 833, 834 
 
 Boom V. Utica (2 Barb. 104) 378, 461, 972 
 
 Boom Co. o. Patterson (98 U. S. 403) 616, 
 
 617 
 
 Booth V. State (4 Conn. 65) 402 
 
 ». Woodbury (32 Conn. 118) 178 
 
 Boothroyd tn re (15 M. & W. 1) 344, 405 
 
 Boren o. Commissioners (21 Ohio St. 
 
 311) 826 
 
 Boring V. Williams (17 Ala. 510) 430 
 
 Boro V. Phillips Co. (4 Dill. 216) 486 
 
 Borough of Little Meadows in re (35 
 
 Pa. St. 335) 213 
 
 Borough of Tintagel tn re (2 Stra. 
 
 1003) 834 
 
 Borough of Yarmouth (2 Brown. & 
 
 Goldsb. 292) 60 
 
 Borough of York «. Forscht (23 Pa. 
 
 St. 391) 368 
 
 Borough I) Shortz (61 Pa. St. 399) 742, 
 
 802 
 
 Borrowman v. Mitchell (3 U. C. Q. B. 
 
 135) 632 
 
 Bosley «. Davies (L. R. 1 Q. B. 94) 383 
 
 Boston B. Lecraw (17 How. 426) 137, 634 
 
 V. Monroe (7 Cush. 125) 941, 946 
 
 V. Richardson (13 Allen, 152) 632, 662, 
 
 684, 686, 687, 690, 709 
 
 V. Robbins (126 Mass. 384) 607 
 
 o. SchafEer (9 Pick. 415) 318, 359, 360, 
 
 764 
 
 V. Shaw (1 Met. 130) 338, 683, 795, 
 
 803, 1005 
 
 ». Worthington (lOGray, 496) 1062, 
 
 1063 
 Boston Beer Co. v. Massachusetts (97 
 
 U. S. 25) 168, 170 
 
 Boston Glass Co. v. Boston (4 Met. 
 
 (Mass.) 181) 941, 943, 946 
 
 Boston Glass Co. v. Langdon (24 Pick. 
 
 49) 195 
 
 Boston Mill Co. v. Newman (12 Pick. 
 
 476) 693 
 
 Boston, etc. Railroad Co. in re (53 N.Y. 
 
 674) 581, 582 
 
 Boston Society v. Boston (116 Mass. 181) 
 610, 747, 756, 775, 776 
 Boston Turnpike Co. o. Pomfret (20 
 
 Conn. 590) 307, 309, 312 
 
 Boston Water Power Co. v. Boston (9 
 
 Met. (Mass.) 199) 941 
 
 Boston Water Co. v. Boston (22 Alb.L. 
 
 J. 376) 774 
 
 Boswell I). Laird (8 Cal. 469) 1054 
 
 Bosworth V. Budgen (7 Mod. 461) 416 
 
 V. New Orleans (26 La. An. 494) 253 
 
 Boucher v. New Haven (40 Conn. 
 
 456) 1029, 1051, 1052, 1053 
 
 Boughner v. Clarksburgh (16 W. Va. 
 
 394) 629, 630, 898 
 
 Bouldin v. Baltimore (15 Md. 13) 365, 767, 
 
 797, 798 
 Boulton V. Crowther (2 Barn. & C. 
 
 703) 1001, 1007 
 
 Bound V. Railroad Co. (45 Wis. 543) 533 
 
 911 
 
 Bouton V. Brooklyn (15 Barb. 376) 642 
 
 V. Supervisors (6 C. L. J. 106) 573 
 
 Bow V. AUentown (34 N. H. 351) 16, 60, 
 
 61, 110, 667 
 
 Bowditch V. Boston (101 U. S. 16) 954, 
 
 955, 980, 981 
 
 Bowdomham v. Richmond (6 Me. 112) 217 
 
 Bowen «. Morris (2 Taunt. 374) 448 
 
 V. Team (6 Rich. (S. C.) Law 
 
 298) 668, 671, 673 
 
 Bower v. State Bank (6 Ark. 234) 206 
 Bowerbank v. Morris (Wall. C. C. R. 
 
 118) 259 
 
 Bowery Bank v. Mayor, etc. (63 
 
 N. Y. 336) 477 
 
 Bowie V. Kansas City (51 Mo. 464) 109 
 Bowland v Hildreth (26 Cal. 161) 226 
 Bowlin «. Furman (28 Mo. 427) 570 
 
 Bowling Green v. Carson (10 Bush, 
 
 64) 389 
 
XXVlll 
 
 TABLE OF CASES CITED. 
 
 Bowlsby V. Spear (31 N. J. L. 351) 1070 
 Bowman v. Boston (5 Cush. 1) 640, 1018 
 V. St. John (47 111. 337) 347 
 
 Boyce v. Russell (2 Cow. 444) 821, 822 
 Bojd V. Kennedy (38 N. J. L. 146) 553 
 Boyden v. Brookline (8 Vt. 284) 254 
 
 Boyer v. State (16 Ind. 451) 636 
 
 Boyland v. Mayor (1 Sandf. 27) 451, 972, 
 
 973 979 
 
 Boyle K. Brooklyn (71 N. Y. 1) 797^ 896 
 
 V. Dundas (25 U. C. C. P. 420) 1024, 
 
 1034 
 V. Dundas (27 U. C. C. P. 129) 1049 
 Boylston Market v. Boston (113 Mass. 
 
 528) 116, 615 
 
 Boyter p. Dodsworth (6 Term R. 
 
 681) 259 
 
 Bozant v. Campbell (9 Rob. La. 411) 334, 
 
 373 
 Brabham s. Hinds Co. (54 Miss. 363) 959, 
 
 961 
 
 Bradford v. Chicago (25 111. 411) 941, 945 
 
 Bradlev o. Ballard (55 III. 413) 985 
 
 !.•. 'Brown (32 U. C. Q. B. 463) 1023 
 
 V. Franklin Co. (58 Mo. 638) 540 
 
 V. MoAtee (7 Bush (Ky.), 667) 7-31, 
 
 747 
 u. Railroad, etc. Co. (21 Conn. 
 
 294) 1000 
 
 V. Richmond (6 Vt. 121) 130 
 
 Bradshaw v. Omaha (1 Neb. 16) 793 
 
 Bradstreet in re (7 Pet. 634) 819 
 
 Brady v. Insurance Co. (11 Mich. 
 
 425) 400, 402 
 
 V. Lowell (3 Cush. 121) 1014, 1015, 
 
 1029, 1053 
 
 V. Mayor (20 N. Y. 312) 451, 460, 461, 
 
 463, 485 
 
 V. Supervisors (2 Sandf. S. C. R. 
 
 460) 473 
 
 V. Weeks (3 Barb. 157) 170 
 
 Brailey v. Southborough (6 Cush. 
 
 (Mass.) 141) 1014 
 
 Brairiard ». Railroad Co. (7 Cush. 
 
 (Mass.) 506) 702 
 
 Braintree v. Battles (6 Vt. 895) 110 
 
 Bramah v. Roberts (3 Bing. (N. C.) 
 
 963) 152 
 
 Bramford v. Isles (3 Exch. 380) 243 
 
 Brander v. Judges, etc. (5 Call. 548) 828 
 Branham v. San Jose (24 Cal. 585) 441, 
 
 647, 666 
 Brandriff v. Harrison Co. (50 Iowa, 
 
 164) 558, 907 
 
 Brandt v. Craddock (27 L. J. Exch. 
 
 314) 238 
 
 Brashear v. Mason (6 How. 97) 826 
 
 Bray v. Wallingford (20 Conn. 416) 131, 
 
 962 
 Brayton v. Fall River (113 Mass. 218) 138, 
 
 378, 1076 
 Bread Co. v. Gregg (L. E. 8 Q. B. 
 
 355) 350 
 
 Breanx's Bridge in re (30 La. An. 
 
 1105) 341 
 
 Brecoster v. Newark (3 Stockt. 114) 801 
 
 Breed v. Cunningham (2 Cal. 368) 688 
 
 V. Lynn (126 Mass. 367) 381 
 
 Breevort v. Detroit (24 Mich. 322) 464, 
 
 808 
 Brewer Brick Co. v. Brewer (62 Me. 
 
 62) 187, 728 
 
 V. Gloucester (14 Mass. 216) 961 
 
 V. Otoe Co. (1 Neb. 373) 486 
 
 V. Springfield (97 Mass. 152) 805 
 
 Brewster v. Harwich (4 Mass. 278) 214, 
 
 216 
 
 v. Newark (8 Stockt. 114) 800 
 
 «. Syracuse (19 N. Y. 116) 101, 102, 
 
 ♦ 729, 744 
 
 Brick Church in re (3 Edw. Ch. Rep. 
 
 155) 374 
 
 Bridge v. Cage (Cro. Jac. 103) 166 
 
 V. Grand Junction R. W. Co. (3 
 
 M. & W. 244) 1023 
 
 I). Lincoln (14 Mass. 867) 265 
 
 Bridge Co. v. Clarksville (1 Sneed, 
 
 176) 580 
 
 V. Dubuque (32 Iowa, 427) 740, 770, 
 
 787 
 V. Foote (9 Bush (Ky.), 264) 1001 
 V. Frankfort (18 B. Mon. 41) 459 
 V. Land Co. (2 Beasl. 524) 958 
 
 V. Lowell (4 Gray, 474) 580 
 
 ». Railroad Co. (17 Conn. 40) 580 
 V. Ring (58 Mo. 491) 620 
 
 V. Wyandotte (10 Kan. 331) 856 
 
 Bridgeport «. N. Y., etc. Co. (36 Conn. 
 
 255) 749, 776 
 
 V. Railroad Co. (15Conn.475) 104, 105, 
 
 118, 121, 179, 188, 441, 451, 453 
 
 Bridges v. Griffin (33 Ga. 113) 788 
 
 V. North London R. W. Co. (L. 
 
 R. 6 Q. B. 377) 1024, 1051 
 
 Brieswick v. Brunswick (51 Ga. 639) 72. 
 
 353 
 
 Briggs V. Boat (7 Allen, 287) 393 
 
 V. Murdock (13 Pick. 305) 286 
 
 V. Whipple (6 Vt. 95) 174, 175 
 
 «. Whipple (7 Vt. 15) 109 
 
 Bright V. Hewes (19 La. An. 666) 473 
 
 V. McCuUough (27 Ind. 228) 858 
 
 V. Supervisors (18 Johns. 242) 2-57 
 
 Brightman v. Bristol (65 Me. 426) 378, 957 
 
 V. Kirner (22 Wis. 54) 740, 776 
 
 Brimmer v. Boston (102 Mass. 19) 116, 
 
 125, 615 
 Brine v. Railway Co. (110 Eng. Com. 
 
 Law, 402) 995, 10B8, 1069, 1071, 
 1078 
 Brinkmeyer v. Evansville (29 Ind. 
 
 187) 171, 982 
 
 Briscoe ». Bank (11 Peters, 257) 42 
 
 V. Drought (11 Ir. C. L. R. 250) 1065 
 
 Bristol V. Newchester (8 N. H. 532) 62, 214 
 
 British Plate Co. v. Meredith (4 D. & 
 
 E. 794) 1007 
 
 Brittain «. Newland (2 D. & B. 363) 208 
 Britton v. Cummington (107 Mass. 
 
 347) 1015, 1018 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 Britton V. Mayor (21 How. Pr. 251) 125 
 V. Philadelphia (32 Pa. St. 387) 815 
 ». Platte City (2 Dillon C. C. 1) 842, 
 
 848 
 
 V. Steber (62 Mo. 370) 81, 82 
 
 Broadnac's Case (1 Vent. 196) 408 
 
 Broadwell v. Chapin (2 111. App. 511) 263 
 
 Brock Dist. v. Bowen (7 U. C. Q. B. 
 
 471) 206 
 
 Broder v. Saillard (L. R. 2 Ch. 692) 376 
 Brodhead v. Milwaukee (19 Wis. 652) 178 
 Brodie & BowmanxUle {3 U. C. Q. B. 
 
 580) 383 
 
 Brodnax v. Groom (64 I^orth Car. 
 
 244) 899, 918 
 
 Bronson v. Kinsie (1 How. 316) 93 
 
 Brookline v. Westminster (4 Vt. 224) 210 
 Brooklyn v. Breslin (57 N. Y. 591) 123, 
 124, 338, 339, 356, 680, 761 
 .,. City R. R. (47 N. Y. 475) 126, 709, 
 711, 713, 1055, 1062, 1063 
 V. Patchen (8 Wend. 47) 613 
 
 V. Railroad Co. (32 Barb. 358) 699 
 711, 712 
 V. Toynbee (31 Barb. 282) 368, 370 
 Brooklyn Park Coramrs. v. Arm- 
 strong (45 N. Y. 234) 93, 94, 583 
 587, 590, 594, 646, 647, 648 
 Brooklyn, etc. Co. u. Brooklyn (78 
 
 N. Y. 524) 6 
 
 Brooklyn, etc. Co. v. Coney Island 
 
 R. R. Co. (35 Barb. 364) 699 
 Brooks V. Baltimore (48 Md. 265) 748 
 V. Mitchell (9 M. & W. 15) 499 
 
 V. New Durham (55 N. H. 559) 450 
 V. Riding (46 Ind. 15) 666, 671, 674 
 I). Somerville (106 Mass. 271) 1046 
 Brophy in re (26 U. C. C. P. 290) 205 
 V. Landman (28 Ohio St. 542) 767, 
 
 799 
 Broughton v. Bristol (65 Me. 426) 379 
 0. Manchester, etc. Co. (3 B. & 
 
 A. 1) 152 
 
 V. Pensacola (93 U. S. 266) 112, 199, 
 
 200, 202, 214 
 
 Brower v. Appleby (1 Sandf. 158) 62, 110 
 
 B. New York (3 Barb. 254) 913, 992 
 
 Brown v. Beatty (34 Miss. 227) 607, 609 
 
 V. Belleville (30 U. C. Q. B. 373) 458 
 
 V. Brown (7 Oregon, 285) 561 
 
 V. Crego (32 Iowa, 498) 838 
 
 V. Cuppin (4 H. & M. 173) 819 
 
 V. Duplessis (14 La. An. 842) 710 
 
 V. Gates (15 W. Va. 131) 28, 128, 
 
 130, 571, 572, 8-S8, 841, 842, 845 
 
 u. Glasgow (57 Mo. 156) 1022, 1025, 
 
 1035, 1036 
 
 ,.. Heath (45 N. H. 168) 131 
 
 V. Hunn (27 Conn. 832) 402 
 
 V. Insurance Co. (3 La. An. 177) 195 
 
 V. Jefferson Co. (16 Iowa, 339) 1038, 
 
 1051 
 
 V. Lindsay (35 U. C. Q. B. 509) 439, 
 
 ' ' 458 
 
 V. Lowell {S Met. (Mass.) 172) 683, 998 
 
 Brown v. Manning (6 Ohio, 298) 626, 633, 
 
 635, 642, 650, 659, 915 
 
 V. Maryland (12 Wheat. 449) 734, 788 
 
 «. Mayor (63 N.Y. 239) 103,461,808 
 
 t>. Mayor (9 C. B. (N. S.) 726) 94 
 
 V. Nicholson (6 C. B. (N. S.) 468) 405 
 
 0. Painter (44 Iowa, 868) 946 
 
 V. Kundlett (15 N. H. 360) 363 
 
 V. Sarnia (11 U. C. Q. B. 87) 935 
 
 1069, 1071 
 
 V. Utica (2 Barb. 104) 486 
 
 V. Vinalhaven (65 Me. 402) 168, 973, 
 
 979 983 
 
 V. Watson (47 Me. 161) 'l042 
 
 Browning v. Owen Co. (44 Ind. 11) 970, 
 
 972, 973 
 V. Railroad Co. (3 Green, Ch. 47) 606 
 V. Springfield (17 III. 143) 1009, 1037 
 Brownlow v. Metropolitan, etc. (13 C. 
 
 B. N. S. 768) 994 
 
 BrownsviUe v. Cook (4 Neb. 101) 367, 368, 
 
 370, 422 
 
 Bruce v. Bruce (2 B. & P. 229) 223, 316 
 
 V. Croraar (22 U. C. Q. B. 321) 206 
 
 I). U. S. (11 How. 447) 243 
 
 Brumagin v. Tillinghast (18 Cal. 256) 943 
 
 Bruner v. Bryan (60 Ala. 523) 259 
 
 Brunnette v. Mayor (9 La. Aii. 430) 361 
 
 Brunswick «. Fahm (60 Ga. 109) 258 
 
 V. Litchfield (2 Me. 28) 97 
 
 Bryan v. Bates (15 111. 87) 238, 409 
 
 i;" Cattell (15 Iowa, 538) 252, 253, 818 
 
 827, 856, 857 
 
 V. Chicago (60 El. 507) 778 
 
 V. Page (51 Tex. 532) 116, 441, 443, 
 
 444, 455, 461 
 
 Bryant v. McCandless (7 Ohio, pt. 2, 
 
 135) 568, 629 
 
 Bryson «. Philadelphia (47 Pa. St. 
 
 329) 125 
 
 Buccleuch v. Metropolitan Board, 
 
 etc. (L. R. 5 H. L. C. 418) 1005 
 Buchanan v. Curtis (25 AVis. 99) 635 
 
 Buck V. Danzebacker (37 N. J. L. 
 
 359) 433 
 
 V. Lockport (6 Lans. 250) 841 
 
 Buckbee v. Brown (21 Wend. 110) 141 
 
 Bucker v. Augusta (1 A. K. Marsh. 9) 647 
 
 Bucknall v. Story (46 Cal. 589) 944 
 
 Buckner in re (9 Ark. 73) 924, 925 
 
 «. Story (36 Cal. 67) 764, 813 
 
 Buell V. Ball (20 Iowa, 282) 326, 793 
 
 „. Buckingham (16 Iowa, 284) 282, 
 
 294 295 297 
 
 Buffalo V. Bettinger (76 N. Y. 393) ' 934 
 
 Buffalo, etc. Co. v. Buffalo (58 N. Y. 
 
 639) 974, 975 
 
 .,. Buffalo (40 N. Y. 503) 776 
 
 ,.. Halloway (7 N. Y. 493) 475, 1049, 
 
 1055 
 
 V. Le Couteaux (15 N. Y. 451) 770 
 
 V. Webster (10 Wend. 100) 838, 354, 
 
 355, 385, 388 
 
 Buflette V. Railroad Co. (40 N. Y. 
 
 168) • 935 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 Builer v. Supervisors (26 Mich. 22) 800 
 Bulliley 0. Eoltert (3 Pa. St. 368) 130 
 
 Bull B. Read (13 Gratt. 78) 62, 731, 918 
 V. Sims (23 N. Y. 570) 481, 483, 487 
 Builer, N. P. 203 273, 275 
 
 BuUoek u. Curry (2 Met. (Ky.) 171) 560 
 V. Geomble (45 III. 218) 352 
 
 Bullwinkle v. Guttenberg (17 Wis. 
 
 585) 937 
 
 Bulow V. City Council (1 N. & Mo- 
 Cord, 527) 787 
 Buncombe v. McCarson (1 D. & B. 
 
 306) 883 
 
 Bunkmeyer v. Evansrille (29 Ind. 
 
 187) 978 
 
 Bunnell's Appeal (69 Pa. St. 59) 659 
 
 Burbank v. Fay (65 N. Y. 57) 559, 669, 
 
 670 
 Buroh V. Hardwicke (30 Gratt. 24) 81, 
 83, 237, 980 
 Burckholter v. McConnelsville (20 
 
 Ohio St. 308) 363 
 
 Burden v. Stein (27 Ala. 104) 589 
 
 Burdett v. Swenson (17 Tex. 489) 376, 379 
 Burgenhoffer v. Martin (3 Yates, 
 
 479) 881 
 
 Burgess v. Jefferson (21 La. An. 143) 465 
 
 V. Pue (2 GiU (iVId.), 254) 261, 300. 
 
 731 
 
 Burke in re (62 N. Y. 224) 779, 794 
 
 o. Elliot ( 1 Ired. Law, 355) 883 
 
 V. Jeffries (20 Iowa, 145) 67 
 
 Burlington v. Beasley (94 U. S. 310) 494 
 
 17. B. & M. B. B. Co. (41 Iowa, 
 
 134) 668, 673, 810, 812, 813 
 
 V. Gilbert (31 Iowa, 356) 797, 798, 
 
 1001 
 
 V. Kellar (18 Iowa, 59) 353, 363 
 
 ». Quick (47 Iowa, 222) 610, 814 
 
 V. Railroad Co. (49 Iowa, 144) 717 
 
 Burlington, etc. Co. v. Davis (48 Iowa, 
 
 133) 142 
 
 V. Woodward (49 Iowa, 58) 163 
 
 Burmeister in re (56 How. Pr. 416) 801 
 
 (76 N. Y. 174) 779 
 
 Burnes o. Atchison (2 Kan. 451) 54, 63, 
 
 188, 190, 763, 764, 768, 907, 915 
 
 Burnett in re (30 Ala. 461) 117, 353, 364, 
 
 365, 399 
 V. Abbott (51 Ind. 254) 469 
 
 V. Auditor ( 12 Ohio, 57) 840 
 
 B.Buffalo (17 N. Y. 383) 598,763 
 V. Sacramento (12 Cal. 76) 752, 797 
 Bumham v. Boston (10 Alien (Mass.), 
 
 290) 1018, 1062 
 
 V. Brown (23 Me. 400) 499 
 
 V. Chicago (24 HI. 496) 794 
 
 o. Fond du Lac (15 Wis. W-*?) 130 
 Bums i;. Baltimore (48 Md. Vm) 806 
 
 V. Clarion Co. (62 Pa. St. 422) 77 
 V. Harper (59 111. 21) 131 
 
 V. La Grange (17 Tex. 415) 429, 924 
 V. Railroad Co. (9 Wis. 450) 587 
 
 V. Toronto (42 U. C. Q. B. 560) 1024, 
 
 1034 
 
 Burr V. Carbondale (76 lU. 455) 168, 651 
 
 737 
 
 V. Leicester (121 Mass. 241) 684 
 
 Burr's Trial, 355 271 
 
 BurriU v. Boston (2 CliflT. 590) 41, 446, 
 
 448, 449, 451, 458, 460 
 
 Burritt v. New Haven (42 Conn. 174) 703, 
 
 707, 719, 1000, 1015 
 
 Burt V. Boston (122 Mass. 223) 1061 
 
 V. Merchants' Ins. Co. (106 Mass. 
 
 356) 590 
 
 Burton v. Patten (2 Jones (N. C), 
 
 Law, 124) 883, 892 
 
 V. Railroad Co. (4Harring. (Del.) 
 
 ♦ 262) 713 
 
 Bush V. Bearan (1 Hurl. & C. 500) 822 
 
 o. Carbondale (78 111. 74) 121, 470 
 
 o. Johnston (23 Pa. St. 209) 636, 
 
 loss 
 
 V. Seabury (8 Johns. 418) 888 
 
 V. Shipman (5 111. 190) 76, 84 
 
 V. Whitney. (1 Chip. 369) 576 
 
 Bushneil v. Beloit (10 Wis. 196) 482 
 
 V. Insurance Co. (15 S. &R. 176) 53 
 
 Bussier v. Pray (7 S. & R. 447) 256, 257 
 
 Butcher v. Camden (29 N. J. Gq.478) 280, 
 
 255 
 Butchers' Benefit Assoc. (36 Pa. St. 
 
 151) 274, 276 
 
 Butchers' Co. v. BuUock (3 B. & Pul. 
 
 434) 347, 411 
 
 V. Mercy (1 H. Bl. 370) 354 
 
 Butler a. Bangor (67 Me. 388) 1026, 1054 
 
 i>. Charlestown (7 Gray, 12) 444, 449, 
 
 473 
 e. Chicago (56 111. 341) 800 
 
 i>. Commrs. (39 N. J. L. 665) 603 
 
 V. Commrs. (L. R. 11 Ir. C. L. B. 
 
 181) 1053 
 
 V. Dunham (27 Dl. 474) 179, 625, 544, 
 
 548 
 
 V. Hunter (7 H. & N. 826) 1058 
 
 v. Milwaukee (15 Wis. 493) 473 
 
 1). Muscatine ( 11 Iowa, 433) 792 
 
 V. Neosho Co. (15 Kan. 178) 257, 938 
 
 B. Nevin (88 111. 575) 116, 443, 767, 
 
 808 810 
 
 B. Toledo (5 Ohio St. 225) ' 808 
 
 Butler's Appeal (73 Pa. 448) 731 
 
 Butman v. Fowler (17 Ohio, 101) 677 
 
 Butolph V. Blust (5 Lans. 84) 410 
 
 Butterfield v. Forrester (11 East, 60) 1023 
 
 Buttrick v. Lowell (1 AUen, 172) 89, 168, 
 
 237, 461, 473, 957, 978, 980, 981, 
 
 988 
 
 Butts ». Wood (37 N. Y. 317) 437 
 
 Butz V. Muscatine (8 Wall. 575) 67, 93, 95, 
 
 164, 190, 501, 502, 503, 504, 551, 
 
 765, 768, 838, 848, 853 
 
 Byars ». Mt. Vernon (77 111. 467) 341 
 
 Byers v. Commonwealth (42 Pa. St. 
 
 89) 398, 399, 406, 424, 426 
 
 ». Olney (16 111. 36) 363 
 
 o. Trustees (16 111. 35) 365 
 
 Byrnes v. Cohoes (67 N. Y. 204) 1070 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 Cabot V. Britt (36 Vt. 349) 311 
 
 V. Rome (28 Ga. 50) 436 
 
 Cadden v. Est wick (1 Salk. 143) 345 
 
 Cady V. Watertown (18 Wis. 322) 445 
 Cahaba v. Burnett (34 Ala. 400) 946 
 
 Cahill ». Ins. Co. (2 Doug. 124) 110 
 
 Cairo v. Allen (3 111. App. 398) 572, 573 
 Calais v. Dyer (7 Me. 155) 721 
 
 Calaveras Co. v. Brockway (30 Cal. 
 
 325) 820 
 
 Calder ». Pilling (14 M. & W. 76) 363 
 Caldwell v. Alton (33 111. 416) 117, 384, 
 
 386, 389 
 
 V. Boone (51 Iowa, 687) 980, 981 
 
 V. Harrison (11 Ala. 755) 298 
 
 u. Justices (4 Jones Eq. 323) 16, 17, 
 
 180, 189, 731 
 
 V. Rupert (10 Bush, 179) 456, 747, 762 
 
 California v. Wells (15 Cal. 336) 552 
 
 Calkins v. Baldwin (4 Wend. 667) 265 
 
 V. Hartford (33 Conn. 57) 1028 
 
 Call V. Chadbourne (46 Me. 206) 62 
 
 CaUahan v. HaUett (1 Caines (N. Y.), 
 
 104) 257 
 
 V. New York (66 N. Y. 656) 417 
 
 Callanan v. Madison (45 Iowa, 561) 946 
 
 Callender v. Marsh (1 Pick. 416) 683, 684, 
 
 995, 998, 1000, 1001, 1004, 1005, 1007 
 
 Calloway Co. v. Foster (93 U. S. 567) 510, 
 
 536 
 V. Milledgville (48 Ga. 809) 940 
 
 Cambridge v. Cambridge B. B. Co. 
 
 (10 Allen, 50) 717 
 
 V, Middlesex Co. Commrs. (125 
 
 Mass. 519) 998 
 
 V. Railroad Co. (7 Met. 70) 930, 932 
 Cambridge University «. Crofts (10 
 
 Mod. 208) 208 
 
 Camden v. AUen (2 Dutch. (N. J.) 
 
 398) 491, 810, 812 
 
 V. Mulford (2 Dutch. (N. J.) 49) 604, 
 
 797 924 926 
 
 Cameron in re (13 U. C. Q. B. 190) ' 325 
 
 (50 N. Y. 502) 477 
 
 V. Stephenson (69 Mo. 372) 729 
 
 Campan v. Detroit (14 Mich. 276) 604, 
 
 61.3, 615 
 
 Campbell v. Elma (13 U. C. Q. B. 296) 441 
 
 V. Kenosha (5 Wall. 194) 70, 94, 463, 
 
 501,540 
 
 V. Montgomery Co. (53 Ala. 527) 949, 
 
 951, 957, 963, 973, 978, 1017, 1037 
 
 V. Polk Co. (3 Iowa, 467) 481, 483, 
 
 484, 486, 487, 822 
 
 V. Race (7 Cush. 408) 1024 
 
 Canaan v. Derush (47 N. H. 211) 455 
 
 V. Hanover (49 N. H. 415) 262 
 
 Canada, etc. v. Oxford (9 U. C. Q. B. 
 
 567) 325 
 
 Canal Bank v. Supervisors (5 Denio, 
 
 517) 146, 156, 484, 486 
 
 Canal Co. v. Commonwealth (7 B. 
 
 Mon. (Ky.) 160) 773 
 
 V. Graham (63 Pa. St. 290) 1010, 
 1041, 1048 1 
 
 Canal Co. v. Hall (1 M. & G. E. 393) 634 
 
 V. Railroad Co. (4 G. & J. 1) 114, 195 
 
 V. Railroad Co. (11 Leigh, 42) 362 
 
 V. Swan (5 How. (U. S.) 88) 472 
 
 Canal Street in re (11 Wend. 155) 601, 602 
 
 (12 N. Y. 406) 432 
 
 Canal Trustees v. Havens (11 III. 
 
 554) 629, 664 
 
 V. People(12 111. 254) 854 
 
 Canning v. Williamstown (1 Cush. 
 
 (Mass.) 451) 1042 
 
 Cannon v. Janvier (8 Houston, 27) 856 
 
 V. New Orleans (20 Wall. 577) 138 
 
 Canton v. Nist (9 Ohio St. 4.39) 340 
 
 Card V. Ellsworth (65 Me. 547) 1022, 
 
 1027 
 Cardigan v. Page (6 N. H. 182) 286 
 
 Carleton v. Bath (22 N. H. 559) 41 
 
 V. Iron Co. (99 Mass. 216) 987 
 
 V. People (10 Mich. 250) 293 
 
 Carlisle v. Blamire (8 East, 487) 206 
 
 Carlton v. Salem (103 Mass. 141) 903, 
 
 914 
 Carlton Street tn re (16 Hun, 497) 304 
 Carman v. Steubenville B. R. (4 Ohio 
 
 St. 339) 1056, 1058 
 
 Came v. Brigham (39 Me. 89) 482 
 
 Carondelet v. McPherson (20 Mo. 
 
 192) 649 
 
 Carpenter v. Cohoes (21 Alb. L. J. 
 
 374) 1009, 1010 
 
 V. Commissioners (21 Pick. 258) 856 
 
 V. Ely (4 Wis. 420) 882 
 
 V. Jennings (77 III. 250) 610 
 
 V. Lathrop (51 Mo. 483) £09, 546 
 
 V. Railroad Co. (24 N. Y. 655) 663, 697 
 
 Carpenter's Case (2 Par. (Pa.) 537) 226 
 
 (Raym. 439) 862 
 
 Carr v. Northern Liberties (35 Pa. St. 
 
 324) 950, 999, 1068, 1072, 
 
 1073, 1078 
 V. St. Louis (9 Mo. 190) 255, 332 
 Carrick v. Johnston (26 U. C. Q. B. 
 
 65) 1025 
 
 Carriger v. Morristown (1 Lea 
 
 (Tenn.), 116) 793 
 
 Carroll v. Board of Police (28 Miss. 
 
 38) 486, 839, 855, 958 
 
 V. Mayor (12 Ala. 173) 356, 789, 923, 
 
 925 
 V. Perry (4 McLean, 25) 729 
 
 V. St. Louis (4 Mo. App. 191) 975 
 V. St. Louis (12 Mo. 44) 257 
 
 V. Siebenthaler (37 Cal. 193) 259 
 V. Tuscaloosa (12 Ala. N. S. 173) 357 
 V. Tyler (2 Harr. & Gill, 54) 257 
 
 Carrolton R. B. Co. o. Winthrop (5 
 
 La. An. 36) 558 
 
 Carron v. Martin (2 Dutch. 594) 116, 448, 
 
 797, 799, 896, 924, 926 
 
 Carson v. Railroad Co. (35 Cal. 825) 697 
 
 Carter v. Bridge Proprietors (104 
 
 Mass. 236) 100, 101 
 
 V. Chicago (57 lU. 283) 628, 656, 898, 
 
 917 
 
xxxu 
 
 TABLE OF CASES CITED. 
 
 Carter v. Dow (16 Wis. 298) 358, 360, 740 
 
 V. Harrison (5 Blackf. 138) 265 
 
 Gary v. Pekin (88 111. 154) 793 
 
 Case V. Hall (21 111. 632) 351, 399 
 
 V. Mobile (30 Ala. 538) 109, 408, 410 
 
 V. Waverly (36 Iowa, 545) 1052 
 
 Casey ».Inloes(l Gill (Md.), 510) 609,974 
 
 V. Leavenworth (17 Kan. 189) 474, 
 
 475 
 
 Cass V. Bellows (31 N. H. 501) 307 
 
 B. Dillon (2 Ohio St. 607) 164, 179, 536 
 
 Cass Co. V. Gillette (100 U. S. 685) 500, 
 
 534, 535, 636 
 
 V. Johnson (95 U. S. 360) 501, 541 
 
 r. Ross (46 Ind. 404) 473 
 
 Cassedy v. Stockbridge (21 Vt. 391) 1023, 
 
 1034 
 Castleton v. Langdon (19 Vt. 210) 559, 661 
 Castor V. Uxbridge (39 U. C. Q. B. 
 
 113) 1018, 1023, 1027, 1033, 1034, 
 1049, 1052 
 Caswell ». Plank Road Co. (28 U. C. 
 
 Q. B. 247) 1034 
 
 Catholic Soc. i>. New Orleans (10 La. 
 
 An. 73) 945 
 
 Cator V. Lewisham (5 B. & S. 115) 1075 
 Cattel V. Ireson (E. B. & E. 91) 428 
 
 Caulfieldr. State (1 S.C. 461) 240 
 
 Caverlyw. Lowell (1 Allen, 289) 256 
 
 Cemetery Ass. v. Meineger (14 Kan. 
 
 312) 595, 637 
 
 V. New Haven (43 Conn. 234) 374, 596 
 Central v. Wilcoxsen (3 Col. 566) 484 
 Central Branch, etc. Co. v. Smith (23 
 
 Kan. 745) 187 
 
 Central Bridge Co. o. Lowell (15 
 
 Gray, 106) 289 
 
 Central Park in ~e (16 Abb. Pr. 56) 590 
 Central Railroa^ Co. v. City Railroad 
 
 Co. (32 Barb. 858) 716 
 
 Centralia v. Krouse (64 HI. 19) 1040, 1048 
 V. Scott (59 111. 129) 1037 
 
 Centreville v. Woods (57 Ind. 192) 1037, 
 1039, 1041 
 Cerro Gordo v. Wright (50 Iowa, 439) 937 
 Chad V. Tilsed (5 J. B. Moore, 185) 119 
 Chadbourne v. Newcastle (48 N. H. 
 
 196) 957 
 
 Chaddock v. Wilbraham (5 C. B. 645) 405 
 Chadwick v. Colfax (51 Iowa, 70) 573 
 V. Melvin (68 Pa. St. 333) 222 
 
 Chaffee v. Granger (6 Mich. 51) 436, 915 
 Chahoon's Case (21 Gratt. (Va.) 822) 418 
 ChalUs ». R. R. Co. (16 Kan. 117) 683 
 Chamberlain v. Burlington (19 Iowa, 
 
 395) 189, 468 
 
 V. Cleveland (34 Ohio St. 551) 748 
 V. Dover (13 Me. 466) 287, 288, 308, 
 
 311 
 V. Engfield (43 N. H. 356) 1028 
 
 V. Sibley (4 Minn. 309) 827 
 
 Chambers v. Green (L. R. 20Eq. 552) 856 
 V. St. Louis (29 Mo. 543) 106, 555, 
 557, 558, 560, 661, 562, 567,569 
 V. Satterlee (40 Cal. 497) 752, 1004 
 
 Chambers, etc. v. Clews (21 Wall. 
 
 317) 494, 506, 522 
 
 Chance v. Temple (1 Iowa, 179) 8u0,861, 
 
 862, 872 
 Chandler v. Bay St. Louis (57 Miss. 
 
 327) 481, 484, 951, 973 
 
 V. Boston (112 Mass. 200) 213, 216 
 
 V. Bradish (23 Vt. 416) 245 
 
 Chapin v. Osbom (29 Ind. 99) 824 
 
 V. Railroad Co. (8 Gray, 575) 479 
 
 V. School Dist. (36 N. H. 446) 208, 568 
 
 V. Sullivan R. R. (39 N. H. 664) 684 
 
 II. Worcester (124 Mass. 464) 610 
 
 Chaplin v. Hill (24 Vt. 628) 461 
 
 Chapman v. Brooklyn (40 N. Y. 372) 744 
 
 V. Gates (64 N. Y. 132) 608 
 
 V. Gordon (29 Ga. 250) 645, 660 
 
 V. Lowell (4 Cush. 378) 477 
 
 V. Miller (2 Speers, 769) 133 
 
 Chariton v. Barker (11 C. L. J. 358) 329 
 
 Charity Hospital o. Stickney (2 La. 
 
 An. 550) 356, 740 
 
 Charles v. Hoboken (3 Dutch. N. J. 
 
 203) 271,276,296,297 
 
 Charles River Bridge v, Warren 
 
 Bridge (11 Pet. 420) 141, 641, 
 774, 1004 
 Charleston v. Chur (2 Bailey, 164) 410, 414 
 Charlton v. Allegheny City (1 Grant 
 
 (Pa.) Cas. 208) 999 
 
 Chase v. Lowell (7 Gray, 33) 240, 256 
 V. Merrimack Bank (19 Pick. 
 (Mass.) 564) 838, 961 
 
 Chaslain v. Town Council (29 Ga. 
 
 333) 863 
 
 Chatfield v. Wilson (28 Vt. 491 995 
 
 Chattanooga V. State (5Sneed (Tenn.), 
 
 578) 930 
 
 Cheany v. Hooser (9 B. Mon. 330) 75, 213, 
 731, 790, 957 
 Cheatham v. Shearn (1 Swan, 213) 379 
 Cheeney v. Brookfield (60 Mo. 63) 451, 
 468, 481, 486, 486, 935 
 Cheesbrough in re (17 Hun, 661) 592 
 
 Cheetham v. Hampson (4 D.& E.318) 1061 
 Cheeveri). Shedd (13 Blatch. 2.58) 998 
 Chegaray v. Jenkins (5 N. Y. 376) 264 
 Chelmsford Co.r.Demarest (7 Gray,l) 243 
 Chemung Bank v. Supervisors (5 
 
 Denio. 517) 442 
 
 Cheneryw. Waltham (8 Cush. 327) 212 
 Cheney v. Shelby ville (18 Ind. 84) 367 
 Cherokee Ins. Co. v. Justices (28 Ga. 
 
 121) 787 
 
 Chess 0. Birmingham (1 Grant (Pa.), 
 
 Cas. 438) 761 
 
 Chestnut Ave. m re (68 Pa. St. 81) 796 
 
 Chestnutwood v. Hood (68 111. 132) 911 
 
 Chicago V. Allcock (86 lU. 384) 488 
 
 V. Baer (41 111. 306) 749, 796 
 
 V. Bixby (84 111. 82) 1019, 1021 
 
 V. Colby (20 111. 614) 776 
 
 V. Crooker (2 III. App.279) 1029, 1062 
 
 V. Dermody (61 111. 431) 264, 980, 1056 
 
 i>. Douglass (52 111. 256) 1041 
 
TABLE OF CASES CITED. 
 
 XXXIU 
 
 Chicago V. Edwards (58 111. 252) 256, 273 
 V. Evans (24 III. 52) 323, 710, b82 
 V. Fowler (60 III. 322) 1032, 1037 
 
 1048 
 V. Gallaffher (44 111. 295) 1018, 1037 
 r. Halsev (25 111. 595) 130, 572, 841 
 V. Hesing (83 111. 204) 1019, 1046 
 V. Hislop (61 111. 86) 1019, 10:^0 
 
 V. Hoy (75 111. 530) 1027 
 
 <•. Huenbein (85 III. 594) 1067 
 
 u. Johnson (53 111. 91) 1037, 1049 
 
 V. Joney (60 III. 383) 264, 980, 1056 
 V. Langlass (52 III; 256) 1041, 1042 
 V. Langlass (66 III. 361) 1029, 1051, 
 
 1052 
 F. Larned (34 HI. 203) 610, 754, 756, 
 
 776 
 V. McCarthy (75 lU. 602) 1029, 1051, 
 
 1052 
 V. McGinn (51 HI. 266) 719 
 
 V. McGivern (78 111. 347) 1020. 1051 
 V. McGraw (75 111. 566) 971 
 
 V. Major (18 III. 349) 1019, 1046 
 
 V. Martin (49 111. 241) 1041, 1042 
 
 V. O'Brenuan (65 111. 160) 965, 1061 
 V. People (56 111. 327) 474, 488, 809 
 «. People (48 III. 416) 474, 475 
 
 V. Powers (42 III. 169) 719, 720, 721 
 V. Quimby (38 111. 274) 348, 392 
 
 V. Robbins (2 Black (U. S.), 424) 696, 
 699, 980, 1037, 1044, 1054, 1055, 
 1056, 1058, 1059, 1061, 1062, 1063 
 17. Rumph (45 111. 90) 142, 334, .361 
 .,. Rumsey (87 III. 348) 654 
 
 V. Rumsey (19 Chicago L.N. 333)1008 
 V. Saffein (49 III. 172) 379 
 
 V. Sansuin (87 111. 182) 842, 858 
 
 V. Sheldon (9 Wall. 50) 501, 503 
 
 V. Starr (42 111. 174) 1046 
 
 V. Ward (36 111. 9) 808 
 
 V. Wheeler (25 III. 478) 600, 602, 603 
 „: Wright (32 III. 192) 763, 764, 767, 
 
 813 
 
 V. Wright (68 111. 586) 721 
 
 V. Wright (69 III. 318) 81, 594, 629, 
 
 630, 632, 661, 671 
 
 Chicago Packing Co. v. Chicago (88 
 
 111.221) 212,355,359 
 
 Chicago, etc. Railroad Co. v. Adler 
 
 (56 111. 344) 76, 80 
 
 V. Banker (44 III. 26) 625 
 
 r. Elgin (91111. 251) 674,606 
 
 V. Fort Howard (21 Wis. 44) 91!) 
 V. Smith (62 111. 268) 179 
 
 1.. Young (62 III. 238) 713 
 
 Chicago, B., & Q. R. R v. Haggerty 
 
 (67 III. 113) 706 
 
 V. Iowa (94 U. S. 155) 73 
 
 f. Payne (59 111. 531) 703 
 
 u. Siders(88Ill. 321) 907 
 
 Chicago, M., & St. P. R. R. Co. u. Ack- 
 
 ley (94 U. S. 179) 73 
 
 Chicago, R. I., & P. R R. Co. . . Joliet 
 
 (79 III. 40) 673, 674 
 
 V. Reidy (66 111. 43) 706 
 
 Chioopee Bank v. Chapin (8 Met. 
 
 (Mass.) 40) 500 
 
 Chidsey v. Canton (17 Conn. 475) 9B2, 
 
 964, 1015. 1033, 1042 
 
 Child W.Boston (4 Allen (Mass.), 41,) 978, 
 
 994, 1072, 1073, 1074, 1075, 1076, 
 
 1077 
 
 V. Hudson's Bay Co. (2 P. Wms. 
 
 207) 329 
 
 Childress v. Mayor (3 Sneed. 347) 381 
 
 Chilton V. Railroad Co. (16 M. & W. 
 
 212) 353 
 
 Chilvers v. People (11 Mich. 43) 143, 
 
 859 
 Choquette v. Barada (33 Mo. 249) 576 
 Christ V. Polk Co. (48 Iowa, 302) 264 
 Christ's Church v. Woodward (21 Me. 
 
 172) 286 
 
 Christopher v. Mayor, etc. (13 Barb. 
 
 567) 463, 913 
 
 Christy's Adm'rs v. St. Louis (20 Mo. 
 
 143) 944 
 
 Church ». Baltimore (6 Gill, 391) 330 
 
 V. Ellis (38 Ind. 3) 773, 774 
 
 V. Cherryfield (33 Me. 460) 1017, 1028 
 
 V. City, etc. (6 Cow. 538) 328 
 
 V. Ft. Wayne (36 Ind. 338) 760, 777 
 
 V. McAtee (8 Bush (Ky.), 508) 747 
 
 V. Milwaukee (31 Wis. 512) 1003 
 
 V. Scholtze (2 Iowa, 27) 645 
 
 Church Case (6 Robt. 649) 294 
 
 Cincinnati v. Bryson (15 Ohio, 625) 356, 
 
 358, 764 
 
 V. Buckingham (10 Ohio, 257) 349, 
 
 351, 358, 385, 764 
 
 V. Cameron (33 Ohio St. 336) 87 
 
 V. Commissioners (7 Ohio, pt. 1, 
 
 88) 626 
 
 ». Coombs (16 Ohio, 181) 597,599 
 V. Evans (5 Ohio St. 594) 667, 673 
 V. Gwynne (10 Ohio, 192) 121, 322, 
 340, 430 
 V. Hamilton Co. (7 Ohio, pt. 1, 
 
 88) 635 
 
 V. Morgan (3 Wall. 275) 510, 524 
 V. Penny (21 Ohio St. 499) 686, 689, 
 
 1002 
 
 ■ V. Rice (15 Ohio, 225) 397 
 
 V. Rosenthal (55 III. 85) 736 
 
 V. Stone (5 Ohio St. 38) 1046, 1056, 
 
 1057 
 
 V. Walls (1 Ohio St. 222) 139 
 
 u. White (6 Pet. 435) 626, 628, 630, 
 
 634, 636, 642, 663, 686 
 
 Cincinnati, etc. R. R. Co. v. Sullivan 
 
 (32 Ohio St. 152) 707 
 
 Cincinnati College v. State (19 Ohio, 
 
 110) 774 
 
 Cisco V. Roberts (36 N. Y. 292) 133 
 
 City V. Alexander (23 Mo. 483) 179 
 
 u. Bergen (50 Pa. St. 639) 799 
 
 V. Clutch (6 Iowa, 546) 356 
 
 V. Ferry Co. (27 Ind. 100) 143 
 
 V. Gilmartin (71 Pa. St. 140) 980 
 V. Given (60 Pa. St. 136} 242, 259 
 
XX XIV 
 
 TABLE OF GASES CITED. 
 
 City V. Lamson (9 Wall. 477) 70, 94, 145, 
 
 479, 486, 501, 503, 540 
 
 B. Wister (35 Pa. St. 427) 799 
 
 City Council v. Ahrens (4 Strob. 241 ) 332. 
 
 337, 357, 364, 735 
 
 V. Baptist Church (4 Strob. 306) 189, 
 
 337, 365, 374 
 
 V. Benjamin (2 Strob. 508) 332, 397 
 
 V. Blythe (2 Ind. 75) 371 
 
 V. Boyd (1 Const. Rep. 352) 373 
 
 •.: Church (1 McMuU. (S.C.) Eq. 
 
 139) 771 
 
 V. Condy (4 Rich. Law, 254) 771 
 V. Corlies (2 Bailey, 189) 411 
 
 V. Dunbar (50 Ga. 387) 772 
 
 ./. Dunn (1 McOord, 333) 411 
 
 V. Elford (1 McI^uU. 234) 400 
 
 V. Fechman (8 Rich. Law, 385) 411 
 V. Gilmer (33 Ala. 116) 995, 1068, 
 1072, 1074, 1078 
 B. Goldsmith (2 Speers, 435) 332, 391 
 B. Goldsmith (12 Rich. Law, 470) 361 
 V. King (4 McCord, 487) 354, 423 
 B. Moorehead (2 Rich. Law, 430) 218, 
 
 219 
 V. Payne (2 N. & McC. 475) 168, 238 
 8. Pepper (1 Rich. Law, 364) 354, 359, 
 422 423 
 17. Finckney (1 Const. 42) 779^ 928 
 v. Plank-road Co. (31 Ala. 76) 117, 
 396, 397, 441, 453, 454 
 V. Seeba (4 Strob. 319) 409 
 
 u. Smidt (11 Rich. Law, 343) 411 
 f. State (2 Speers (S. C), Law, 
 
 719) 771, 788, 789 
 
 B. Van Dom (41 Ala. 505) 131 
 
 City of Boston v. SchafEer (9 Pick. 
 
 415) 356 
 
 City of Brooklyn v. Cleves (Hill & 
 
 Denio,"Suppl. 231) 390 
 
 City of Buffalo tn re (64 N. T. 547) 583 
 
 (78 N. Y. 362) 597 
 
 City of Central v. Sears (2 Col. 588) 253, 
 
 254, 321 
 City of Davenport v. Davenport, etc. 
 
 R. R. Co. (38 Iowa, 99) 700 
 
 City of Delphi v. Evans (36 Ind. 90) 305 
 
 City of Lexington v. Butler (14 Wall. , 
 
 284) 524, 527 
 
 City of London (3 Hargr. St Tr. 
 
 545) 893 
 
 ». Vanaeker (1 Ld. Raym. 496) 248 
 V. Vanaeker (Carth. 482) 248 
 
 „. Vanaeker ( 12 Mod. 272) 248, 355 
 B. Vanaeker (1 Salk. 142) 248 
 
 City of London in re (8 Howe, St. 
 
 Tr. 1040) 887 
 
 City of Louisiana v. Wood (Oct. T. 
 
 S. C. 1880) 476 
 
 City of Louisville v. Nevin (10 Bush, 
 
 549) 456 
 
 City of Lowell b. Wheelock (11 
 
 Cush. 391) 312 
 
 City of Madison b. Hatcher (8 
 
 Blackf. (Ind.) 341) 371 
 
 City of Pella b. Scholte (24 Iowa, 283) 673 
 City of Peoria b. Johnston (56 111. 45) 673 
 City of Philadelphia v. Phil. & Read. 
 
 R. R. (58 Penn. 263) 672 
 
 City of Richmond b. Daniel (14 Gratt. 
 
 (Va.) 387) 763 
 
 V. Poe (24 Gratt. (Va.) 149) 673 
 
 City of Sliawneetown o. Baker (85 
 
 111. 563) 472 
 
 City of Somerville b. O'Neil (114 
 
 Mass. 353) 654 
 
 Citv of St. Louis v. Armstrong (56 
 
 Mo. 298) . 462 
 
 V. Shields (62 Mo. 247) 510 
 
 City ofc Toronto v. Bowes (4 Grant 
 
 (Canada), 504) 437,439,489,905 
 City Fire Ins. Co. v. Corlies (21 Wend. 
 
 (N. Y.) .367) 955 
 
 City Gas Co. v. Thurber (2 R. 1. 15) 785 
 City Railroad Co. v. City R. R. Co. 
 
 (20 N. J. Eq. 61) 701,711,712 
 714, 716, 719 
 o. Memphis (4 Coldw. (Tenn.) 
 406) 709, 711 
 
 City Railway Co. b. Louisville (8 
 
 Bush, 415) 440, 711 
 
 B. Louisville (4 Bush, 478) 711, 712, 
 
 785, 786 
 
 Claflin B. Hopkinton (4 Gray, 502) 176, 910 
 
 V. Iowa City (12 Iowa, 284) 131 
 
 Clague V. New Orleans (13 La. An. 
 
 275) 981 
 
 Claiborne Street in re (4 La. An. 7) 596, 
 
 598 602 
 
 Clancy b. Byrne (56 N. Y. 129) 1032 
 
 Clapp r. Cedar County (5 Iowa, 15) 479 
 
 B. Hartford (35 Conn. 66) 109, 610, 
 
 743, 804, 805 
 
 B. Walker (25 Iowa, 316) 131 
 
 Clarence v. Auburn (66 N. Y. 334) 950 
 
 ClarkB. Harrington (41 N. H.44) 1017,1023 
 
 V. Blackmar (47 N. Y. 150) 697, 700, 
 
 701 
 v. Board (27 111. 310) 191, 222 
 
 B. Canal Co. (6 A. & E. N. S. 898) 856 
 B. City (10 Wis. 136) 180 
 
 B. Commonwealth (14 Bush, 166) 675 
 f. Corinth (41 Vt. 449) 1017 
 
 B. Cuckfield Union (11 Eng.Law 
 
 & Eq. 442) 450 
 
 B. Davenport (4 Iowa, 494) 117, 190, 
 
 768, 848 
 
 V. Dayton (6 Neb. 192) 464 
 
 B. Des Moines (19 Iowa, 199) 156, 
 
 189, 451, 468, 479, 480, 481, 482, 
 
 485, 486, 487, 523, 676, 721 
 
 V. Dutcher (9 Cow. 674) 942, 945, 946 
 
 B. Ferry Co. (85 N. Y. 485) 987 
 
 B. Fry (8 Ohio St. 358) 722, 1058 
 
 B. Halleck ( 16 Wend. 607) 264 
 
 B. Hancock Co. (27 111. 305) 482 
 
 V. Iowa City (20 Wall. 583) 479, 480 
 
 B. Janesville (1 Biss. 98) 552 
 
 ». Janesville (10 Wis. 136) 145, 164, 
 
 341, 479 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 Clark I). Jersey City (42 N. J. L. 94) 842 
 V. Lewis (35 III. 417) 177, 352 
 
 V. Loclcport (49 Barb. 580) 1051 
 
 O.Lyon Co. (8 Nev. 181) 460,472 
 V. McCartliy (1 Cal. 45.S) 679 
 
 B. Mayor (13 Barb. 32) 378, 379, 898 
 V. Mayor, etc. (4 Comst. (N. Y.) 
 
 838) 478 
 
 V. Mobile (36 Ala. 621) 130 
 
 V. Newport (6 R. I. 333) 602 
 
 V. Norton (49 N. Y. 243) 264 
 
 V. People (15 III. 213) 271, 884 
 
 V. Polk Co. (19 Iowa, 248) 451, 480, 
 481, 486 
 e. Potter Co. (1 Pa. St. 163) 208 
 
 V. Pratt (47 Me. 55) 676 
 
 V. Saline Co. (21 Alb. L. J. 378) 938 
 V. Saline Co. (7 Neb. 516) 937 
 
 t>. Say brook (21 Conn. 313) 1000 
 i\ School Coramrs. (36 Ala. 621) 131 
 V. School Dist. (78 111. 474) 147 
 
 V. School Dist. (3 R. I. 199) 145, 146, 
 481, 482 
 V. Syracuse (13 Barb. 32) 883 
 
 V. Tuckett (2 Vent. 182) 414 
 
 V. Utiea (18 Barb. 451) 615 
 
 V. Waltham (Mass. Sup. C. 1880) 1062 
 V. Washington (12 Wheat. 40) 124, 
 
 445 
 
 V. Wilmington (5 Harr. (Del.) 
 
 243) 1070 
 
 Qark Co. v. Lawrence (63 111. 32) 178 
 
 V. State (61 Ind. 75) 866 
 
 Clarke's Case (5 Co. 64) 353 
 
 Clark's Case (2 Cro. 506) 275 
 
 Clark's Case (2 Par. 521) 225 
 
 u. Blackmar (47 N. Y. 150) 697, 700 
 
 V. Dutcher (9 Cow. 674) 942 
 
 i;. Farmers', etc. Co. (15 Wend. 
 
 256) 220 
 
 V.Lyon Co. (8 Nev. 181) 460 
 
 V. Rochester (28 N. Y. 605) 63 
 
 V. Rochester (5 Abb. Pr. 107) 195 
 V. Rochester (24 Barb. 446) 56, 70, 
 
 179 
 
 Clason V. Milwaukee (30 Wis. 316) 331, 
 
 337, 3.38, 436 
 
 Clay V. County (4 Bush, 154) 190, 548 
 
 Clay Co. V. Simonsen (1 Dak. Ter. 
 
 403) 262 
 
 CTayards v. Dethick (12 Q. B, 439) 1050 
 Clayburgh v. Chicago (25 111. 535) 456, 
 
 986 
 Clayton v. Heidelbergh (17 Miss. 623) 928, 
 
 929 
 Clear Lgke, etc. Co. v. Lake Co. (45 
 
 Cal. 90) 958 
 
 Clegg V. Richardson Co. (8 Neb. 178) 66 
 Cleghorn ». Postlethwaite (43 III. 428) 800 
 Cleino ». R. R. Co. (2 Dillon, 175, 1873) 774 
 Clemence v. Auburn (66 N. Y. 334) 998, 
 1037, 1075 
 Clemens v. Anderson (46 Miss. 581) 608, 
 
 673 
 Clerk V. Tucker (2 Vent. 132) 812 
 
 Gierke n. Tucker (3 Lev. 281) 349, 354 
 
 Cleveland v. Gas Co. (20 N. J. Eq. 203) 379 
 
 V. Jersey City (39 N. J. L. 629) 821, 
 
 869 
 
 i>. St. Paul (18 Minn. 279) 1038, 1048 
 
 Cleveland v. Wick (18 Ohio St. 303) 610, 
 
 612, 748 
 
 Clifton V. Cook (7 Ala. 114) 225, 226 
 
 Cline D. Cornwall (21 Grant, 142) 722 
 
 V. Cornwall (21 Grant, 129) 723, 724 
 
 Clinton V. Howard (42 Conn. 294) 1022 
 
 0. Phillips (58 111. 102) 331 
 
 V. Railroad Co. (24 Iowa, 455) 75, 96, 
 
 632, 652, 663, 696, 697, 701, 702, 
 
 703, 711, 716 
 
 V. Strong (9 Johns. 370) 941 
 
 Clintonville v. Keating (4 Denio, 341) 114, 
 
 366 
 Clothier v. Webster (12 C. B. N. S. 
 
 790) 1074 
 
 Clough ». Hart (8 Kan. 487) 472, 473 
 
 w. Unity (18 N. H. 75) 601 
 
 Coast Line, etc. v. Cohen (50 Ga. 451) 669. 
 
 711 
 Coates V. Canaan (51 Vt. 131) 1019, 1026, 
 
 1051 
 V. New York (7 Cowen,585) 168, 170, 
 374, 405, 410 
 Cobb V. Boston (112 Mass. 181) 167 
 
 V. Dalton (53 Ga. 426) 949 
 
 V. Kingman (16 Mass. 197) 216 
 
 .,. Portland (55 Me. 381) 981 
 
 V. Standish (14 Me. 198) 1023, 1040, 
 
 1048 
 Cobbett V. Slowman (9 Exch. 633) 428 
 Coburn v. Ellenwood (4 N. H. 99) 577 
 Cochran v. McCleary (22 Iowa, 75) 2.3.3, 
 236, 278, 290, 291, 293, 833, 879, 
 881,882 
 Cockburn v. Bank (13 La. An. 289) 316, 
 
 316 
 
 Cocke V. Halsey (16 Pet. 71) 247 
 
 Cocking V. Baldwin (4 Wend. 667) 609 
 
 Codd V. Cabe (13 Cox, 202) 238, 239 
 
 Codding V. Mansfield (7 Gray, 272) 166 
 
 Coe V. Railroad Co. (10 Ohio St. 372) 788 
 
 'J. Wise (L. R. 1 Q. B. 711) 141 
 
 V. Wise (7 B. & S. 831) 1074 
 
 V. Wise (5 B. & S. 440) 989 
 
 Coffin V. Field (7 Cush. 355) 177 
 
 V. Nantucket (6 Cush. 269) 124, 296, 
 
 955 
 
 V. Plymouth (49 N. H. 173) 262 
 
 V. State (7 Ind. 167) 263 
 
 Cofran v. Cochran (5 N. H. 468) 577 
 
 Coggeshall v. New Rochelle (7 Johns. 
 
 Ch. 292) 668 
 
 Coghlan v. Ottawa (1 App. R. 54) 1075 
 Cogshall 1-. Pelton (7 Johns. Cb. 292) 561, 
 
 567 
 Cogswell V. Lexington (4 Cush. 307) 1024, 
 1027,1034 
 Cohen r. Wigfall (8 Rich. L. 237) 222 
 Coit V. Society (32 Conn. 173) 727 
 
 Coker v. Birge (10 Ga. 336) 379 
 
XX XVI 
 
 TABLE OF CASES CITED. 
 
 Colbeck B. Brantford (21 U. C. Q. B. 
 
 276) 1010, 1028, 1049 
 
 Oolburnv. Chattanooga (17 Am. Law 
 
 Beg. N. S. 191) 486,912 
 
 Colby M. Beaver Dam (34 Wis. 285) 1026 
 
 Colchester v. Brooke (7 Q. B. 383) 194, 
 
 195, 197, 203 
 
 V. Goodwin (Carter, 121) 414 
 
 V. Lawton (1 Ves. & B. 226) 570 
 
 V. Seaber (3 Burr. 1870) 194, 195, 
 
 197, 199, 203, 208 
 
 Coldspringu. Tolland (9 Cush. 492) 209, 
 
 210 
 Coldwater v. Tucker (36 Mich. 474) 209, 
 
 440, 1078 
 Cole V. Drew (44 Vt. 49) 684 
 
 V. Green (25 III. 104) 672 
 
 V. Medina (27 Barb. 218) 949 
 
 K. Muscatine (14 Iowa, 296) 1001, 
 1003, 1005 
 o. Nashville (4 Sneed (Tenn.), 
 
 162) 762, 973 
 
 V. Newburyport (23 Alb. L.J. 3) 981, 
 
 1043 
 
 Coleman v. Neal (8 Ga. 560) 840 
 
 V. Railroad Co. (.38 N. Y 201) 708 
 
 Coles V. Madison Co. (1 III. 120) 76, 80 
 
 V. Williamsburg (10 Wend. 658) 282, 
 
 295, 305 
 
 Coles Co. u. Allison (23 111. 383) 225, 299, 
 
 412 
 Colgrove v. Breed (2 Denio, 125) 261 
 Colking V. Baldwin (4 Wend. 667) 607 
 Collector v. Day (11 Wall. 113) 772 
 
 V. Hubbard (12 Wall. 1) 458, 940,948 
 College V. Crowell (10 Kan. 442) 774 
 
 V. Shawnee Co. (8 Kan. 344) 774 
 Colley V. Inhabitants (2 Am. Rep. 30) 
 
 1053 
 
 V. Westbrook (57 Me. 181) 1052 
 
 Collins V. Camden (27 N. J. Eq. 293) 921 
 
 i;. Council Bluffs. (32 Iowa, 324) 1021, 
 
 1041, 1042 
 
 V. Dorchester (6 Cush. 396) 318, 
 
 1028 
 V. Hatch (18 Ohio, 523) 118, 329, 332 
 
 340 
 
 u. Louisville (2 B. Mon. 134) 356, 
 
 392, 764, 767 
 
 V. State (8 Ind. 344) 248 
 
 V. Swindle (6 Grant, 282) 439 
 
 Colton V. Hanchett (13 III. 615) 121, 676, 
 
 721, 911 
 
 V. Rossi (9 Cal. 595) 609 
 
 Columbia v. Duke (2 Strob. 530) 897 
 
 V. Harrison (2 Const. 213) 404, 411 
 
 V. Hunt (5 Rich. 551) 846, 763, 764 
 
 Columbia Bridge v. Kline (Bright. 
 
 320) 562 
 
 Columbia Co. v. Bryson (13 Fla. 
 
 281) 871, 007 
 
 1-. King ( 13 Fla. 451 ) 501, 838, 845, 
 
 862, 877 
 
 Columbus ». Arnold (30 Ga 517) 410 
 
 0. Dahn (36 Ind. 330) 630, 639 
 
 Columbus 0. Grey (2 Bush, 476) 139, 140 
 V. Jacques (30 Ga. 506) 643, 666, 667 
 V. Story (35 Ind. 9/) 767 
 
 V. Woollen MiU Co. (33 Ind. 435) 
 
 1005, 1077 
 Colwell V. Piden (3 Watts (Pa.), 327) 942 
 Comer v. Folsom (13 Minn. 219) 178 
 
 Comman v. Railroad Co. (5 Jur. N. S. 
 
 657) 
 
 Commercial Bank v. lola (2 Dill. 353) 67, 
 
 187, 188, 189, 190, 504, 737 
 
 V. lola (20 Wall. 655) 187, 188, 190 
 
 Commissioners v. Block (99 U. S. 686) 499 
 
 .■.Bowie (34 Ala. 461) 609 
 
 K.?Boyd (1 Ired. Law, 194) 661 
 
 V. Bright (18 Ind. 93) 479 
 
 V. Butt (2 Ohio, 348) 963 
 
 V. Chandler (96 U. S. 205) 494, 495 
 
 V. County (20 Md. 449) 859 
 
 V. Cox (6 Ind. 403) 193, 198, 451, 486 
 
 U.Day (19 Ind. 450) 481,485 
 
 V. Duckett (20 Md. 468) 89, 327, 825 
 
 w. Gas Co. (12 Pa. St. 318) 331,332, 
 
 6£2, 6B5 
 
 ». Harper (38 111. 103) 924 
 
 V. Harris (7 Jones (Law), 281) 347, 
 
 368 37 1 
 
 V. Hearn (59 Ala! 371) ' 310 
 
 I . Hudson (2 Beasl. 420) 691 
 V. January (94 U. S. 202) 510 
 V. Keller (6 Kan. 510) 481, 485, 486 
 V. Land Co. (23 Kan. 196) 944 
 V. Lecky (6 S. & R. 166) 298 
 V. Lynch (2 McCord, 170) 821, 824 
 V. Martin (4 Mich. 557) 962 
 V. Mason (9 Ind. 97) 487 
 V. Mighels (7 Ohio, 109) 117, 962 
 V. Miller (7 Kan. 479) 165 
 V. Neill (3 Teates, 54) 139 
 ». Nesbitt (11 G. & J. 50) 265 
 V. Nichols (14 Ohio St. 260) 516, 524 
 ». Patterson (8 Jones, Law, 182), 789 
 V. People (38 111. 347) 862 
 V. Perry (5 Ohio, 57) 261 
 V. Powe (6 Jones, Law, 134) 373 
 V. Russell (44 Ind. 509) 437 
 V. Sandusky Co. (1 Ohio St. 149) 828 
 V. Sellew (99 U. S. 624) 871, 872 
 
 II. Supervisors (27 111. 140) 924 
 V. Tarver (21 Ala. 661) 298, 867, 868 
 V. Taylor (2 Bay, 282) 641, 671 
 V. Van Sickle (Bright. (Pa.) 69) , 379 
 V. Wood (10 Pa. St. 93) 999, 1068, 1077 
 
 Commissioners' Court ». Bather (48 
 
 Ala. 434) 845 
 
 Commissioners of Albany in re (56 N. 
 
 Y. 144) 601 
 
 Commissioners, etc. of Brooklyn in re 
 
 (N. Y.) 653 
 
 Commissioners of Central Park in re 
 
 (50N. Y. 493) 113 
 
 Commissioners of Douglas Co. v. 
 
 Bollcs (94 U. S. 104) 509 
 
 Commissioners of Johnson Co. v. 
 
 Thayer (94 U. S. 631) 610 
 
TABLE OF GASES CITED. 
 
 xxxvn 
 
 Commissioners of Knox Co. b. Aspin- 
 
 wall (21 How. 539) 507, 508 
 
 Commissioners of Warren Co. v. State 
 
 (15 Ind. 250) 824 
 
 Commonwealth v. Adams (114 Mass. 
 
 323) 394, 1041 
 
 V. Alburger (1 Whart. (Pa.) 469) 625, 
 630, 635, 639, 643, 647, 669 
 V. Alger (7 Cush. 53) 133, 136, 167 
 V. Alleghany Co. (37 Pa. St. 237, 
 277) 572, 817, 838, 845, 855, 857, 
 858, 867, 868 
 V. Alleghany Co. (32 Pa. St. 218) 818, 
 819, 820, 838 
 V. America Bank (10 Phil. 156) 891 
 V. Arrison (15 S. & R. 130) 290 
 
 V. Athern (3 Mass. 285) 314, 892 
 
 V. Bacon (6 S. & R. 322) 254, 255 
 V. Bank (28 Pa. St. 289) 291 
 
 V. Baxter (.35 Pa. St. 263) 229, 232, 882 
 V. Bean (14 Gray, 52) 333, 399, 409 
 V. Bean (Thacli. Crim. Cas. 85) 409 
 V. Belden (13 Met. 10) 636, 640, 641 
 ». Binns (17 S. &R. 219) 252 
 
 <;. Blaisdell (107 Mass. 2-34) 658, 726 
 V. Borden (61 Pa St. 272) 410 
 
 i>. Boston (97 Mass. 555) 694 
 
 V. Bowman (3 Pa. St. 203) 387, 64.3, 
 644, 645 
 V. Breed (4 Pick. 463) 595 
 
 V. Briee (22 Pa. St. 211) 963 
 
 V. Bridge Proprietors (2 Gray, 
 
 339) 930 
 
 I'. Brooks (99 Mass. 434) 678 
 
 B. Bumm(10Phil. 162) 890 
 
 V Bussie (5 S. & R. 451) 269 
 V. C. P. Railway Co. (52 Pa. St. 
 
 506) 711,879,887 
 
 V. Cambridge (7 Mass. 166) 589 
 
 V. Central Railway (52 Pa. St. 
 
 506) 711 
 
 V. Charleston (1 Pick. 180) 596, 641 
 V. Chase (6 Cush. 248) 317 
 
 V. Cluley (56 Pa. St. 270) 224, 879, 883, 
 
 890 
 t. Cole (26 Pa. St. 187) 636 
 
 V. Commrs. (16 S. & R. 317) 840 
 
 V. Commrs. (2 Whart. (Pa.) 286) 609, 
 
 840 
 17. Commrs. (5 Rawle, 75) 225, 836 
 ». Commrs. (37 Pa. 237) 524, 860 
 V. Commrs. (9 Watts, 466) 298 
 
 V. Conely (4 Pa. St. 372) 263 
 
 w. Cullen (1 Harris (Pa.), 133) 195 
 
 0. Curtis (9 Allen, 260) .399, 679 
 V. Dallas (3 Yeates, 300) 235, 419 
 V. Deerfield (6 Allen, 449) 719 
 V. Bennison (24 How. 66) 818 
 V. Dow (10 Met. 382) 364, 414 
 V. Dugan (12 Met. 233) 237 
 V. Duquet (2 Yeates, 493) 322 
 
 V Ellis (11 Mass. 465) 923 
 ... Emery (11 Cush. 406) 430 
 
 1, Fahey (5 Cush. 408) 374, 407, 409, 
 
 411 
 
 Commonwealth». Ford (5Pa. 67) 252 
 V. Fowler (10 Mass. 290) 886, 893 
 V. Garrigues (28 Pa. St. 9) 2*2, 882 
 t>. Gas Co. (12 Pa. St. 318) 338 
 
 V. Gay (5 Pick. 44) 407, 409 
 
 V. Genther (17 S-. & R. 135) 260 
 
 V. German Society (15 Fa. St. 
 
 251) 276, 278 
 
 V. Gill (3 Whart. 228) 884 
 
 0. Goodrich (13 Allen, 545) 335, Sn, 
 
 883 
 V. Guardians (15 Pa. St. 6 S. & R. 
 
 469) 269, 274 
 
 p. Hall (7 Watts, 290) 963. 
 
 V. Hampden Sessions (2 Pick. 
 
 414) 865 
 
 V. Hastings (9 Met. 259) 237, 238 
 
 239 
 ». Hawks (123 Mass. 525) 250, 420 
 t;. Henry (49 Pa. St. 530) 82-5, 826 
 V. Hitching (5 Gray, 482) 413 
 
 V. Hopkinsville (7 B. Mon. 38) 931 
 V. Horn (10 Phil. 164) 890 
 
 V. Huhn (70 Pa. St. 465) 230 
 
 V. Ipswich (2 Pick. 70) 294 
 
 V. Johnson (2 Binney, 275) 822 
 
 V. Jones (12 Pa. St. 865) 222, 879, 890, 
 
 898 
 K. Judges (8 Pa. St. 391) «3 
 
 V. Justices (2 Va. Cas. 9) 819 
 
 V. Kepner (10 Pliil. 510) 290 
 
 V. King (13 Met. 115) 723 
 
 V. Lancaster (5 Watts. 152) 302, 840 
 V. Leech (44 Pa. St. 332) 228, 229, 231, 
 232, 882 
 V. Low (3 Pick. 408) 636, 641 
 
 W.Lowell Gas Co. (12 Allen, 75) 786 
 V. Lyndall (2 Brewster, 425) 868 
 
 V. Mann (5 W. & S. 418) 255 
 
 17. Markham (7 Bush, 486) 357, 766 
 V. McCloskey (2 Rawle, 369) 229, 
 432, 881, 882 
 V. McDonald (16 S. & R. 390) 639, 669 
 V. McDonald ( 16 S. & R. 401) 672' 
 ^. McWilliams (11 Pa. St. 61) 179 
 w. Meeser (44 Pa. St. 341) 229, 231, 
 882, 890 
 !>. Miliman (13 S. & R. 408) 657 
 
 V. Milton (12 B, Mon. (Ky.) 212) 736 
 V. Montrose (52 Pa. St. 391) 58 
 
 V. Newbury (2 Pick. 51) 627 
 
 V. Noxon (121 Mass. 42) 684 
 
 u. Painter (10 Pa. St. 214) 62 
 
 f. Park (10 Phil. 444) 825 
 
 V. Passmore (1 S. & R. (Pa.) 217) 699, 
 
 722 
 V. Patch (97 Mass. 221) 333, 338 
 
 V. Pennsylvania Institute (2 S. & 
 
 R. 141) 276, 277 
 
 V. Perkins (43 Pa. St. 400) 179, 572, 
 
 838 
 V. Perkins (47 Pa. St. 189) 179 
 
 V. Philadelphia (29 Pa. St. 497) 946 
 V. Fliiladelphia (7 Am. Law Reg. 
 
 N. 8. 362) 241 
 
XXXVIU 
 
 TABLE OF CASES CITED. 
 
 Commonwealth v. Philadelphia Soc. 
 
 (5 Biim. 486) 275 
 
 K. .Pindar (11 Met. 539) 430 
 
 V. Pittsburgh (34 Pa. St. 496) 146, 
 
 154, 155, 190, 482, 768, 817, 820, 
 
 825, 837, 838, 844, 845, 848, 861, 
 
 862, 864, 867, 868 
 
 ». Pittsburgh (41 Pa. St. 278) 146, 
 
 482 
 
 ♦ V. Pittsburgh (14 Pa. St. 177) 239, 
 
 302, 887 
 
 V. Pittsburgh (88 Pa. St. 66) 840, 842 
 
 V. Pittsburgh (43 Pa. St. 391) 551 
 
 o. Railroad Co. (2 Gray, 54) 930 
 
 V. Bailroad Co. (4 Gray, 22) 930 
 
 V. Railroad Co. ( 14 Gray, 93) 703 
 
 11. Bailroad Co. (27 Pa. St. 339) 680, 
 
 696, 699, 702, 703, 709 
 
 V. RailroadCo.(6Whart.(Pa.)25) 699 
 
 i;. Bead (1 Gray, 475) 422 
 
 V. Rice (9 Met. 253) 391 
 
 ». Roark(8Cush. 210) 4-30 
 
 0. Eobertson (5 Cush. 438) 3.^1, 338, 
 
 394, 412 
 
 V. Roxbury (9 Gray, 451) 16. 36, 137, 
 
 ViO, 197, 198 
 
 V. Rush (14 Pa. St. 186) 387, 642, 643, 
 
 647, 655, 656 
 
 V. Ryan (5 Mass. 90) 422, 423 
 
 ». Savings Banlr (98 Mass. 12) 552 
 
 B. Sawin (2Pick. 547) 5«8 
 
 V. Shaver (3 W. & S. 338) 270 
 
 0. Sliaw (1 Pittsburg (Pa.), 492) 420 
 
 «. Shepp(10Pliila. 518) 890 
 
 V. Sherman (18 Pa. St. 343) 587 
 
 ». Small (27 Pa. St. 31) 833 
 
 V. Smead (11 Mass. 74) 893 
 
 V. Smith (45 Fa St. 59) 892 
 
 V. Springfield (7 Mass. 9) 1014 
 
 ». Stiffee (7Bu8li, 161) 331 
 
 V. Stodder (2 Cush. 562) 336, 338, 
 
 357, 3.59, 360, 361, 372, 394, 413 
 
 V. St. Patrick's Soc. (2 Binn. 441) 266, 
 
 269. 270, 274 
 
 V. Sutherland (3 S. & R. 145) 269, 
 
 270 273 
 
 V. Taylor (36 Pa. St. 263) ' 870 
 
 V. Temple (14 Gray, 69) 712, 715 
 
 V. Tewksbury (11 Met. 55) 167 
 
 V. Turner (1 Cush. 493) 117, 321, 329, 
 
 332, 364 
 
 V. Union Ins. Co. (5 Mass. 230) 195 
 
 V. Wentworth (Bright. (Pa.) 318) 657 
 
 w. Wilder (127 Mass. 1) 570 
 
 V. Wilmington (105 Mass. 599) 1018 
 
 V. Woelper (3 S. & R. 29) 222 
 
 V. Wolbert (6 Binney, 292) 242 
 
 V. Wood (10 Pa. St. 93) 625 
 
 V. Woods (44 Pa. St. 113) 610 
 
 V. Worcester (3 Pick. 462) 112, 338, 
 
 394, 407, 409 
 
 Company v. State (24 N. J. L. 62) 720 
 
 Conboy ». Iowa City (2 Iowa, 90) 341, 
 
 408, 432 
 Concord v. Boscawen (17 N. H. 465) 560 
 
 Concord u. Portsmouth Bank (92 U. 
 
 S. 625) 95, 521, 522, 529, 530, 532, 
 533 
 Concord Railroad Co. v. Greeley (17 
 
 N. H. 47) 595 
 
 Cone V. Hartford (28 Conn. 363) 610, 688, 
 
 749, 802, 803, 804 
 
 Congdon v. Norwich (37 Conn. 414) 1020 
 
 Congot V. New Orleans (16 La. An. 
 
 21) 385, 388 
 
 Congregational Soc. ». Sperry (10 
 
 Conn. 200) 246, 286 
 
 Congreve v. Morgan (5 Duer, 496) 1027 
 
 v.MoTgan (18 N. Y. 84) 1059, 1060 
 
 B.'Smith (18N. Y. 79) 1059 
 
 Conklin v. Fellmore Co. (13 Minn. 
 
 454) 915 
 
 V. School Dist. (22 Kan. 521) 31 
 
 Connden v. Gierke (Hobart, 32) 207 
 
 Connelly o.Griswold (7 Iowa, 416) 606, 614 
 
 Conner v. Bent (1 Mo. 235) 80 
 
 V. Mayor (5 N. Y. 285) 253, 255 
 
 V. New Albany (1 Blackf. 43) 143 
 
 Connersville v. Bank ( 16 Ind. 105) 787 
 
 Connor v. Morris (23 Cal. 447) 840 
 
 Conrad v. Ithaca (16 N. Y. 158) 128, 964, 
 
 986, 1026, 10.37, 1046, 1078 
 
 V. Trustees (16 N. Y. 158) 984 
 
 Conservators v. Ash (10 B. & C. 349) 60, 61 
 
 Constables of Hipperholm iti re (5 D. 
 
 & L. 79) 927 
 
 Converse y. Ft. Scott (92 U. S. 503) 537 
 
 V. United States (21 How. 463) 257 
 
 Conwell ". Emrie (4 Ind. 200) 264 
 
 Cook V. Boston (9 Allen, 393) 941, 942, 
 
 943, 944 
 V. Buffalo (1 Clinton Dig. Buffalo, 
 
 § 2) 158 
 
 V. Burlington (30 Iowa, 94) 631, 633, 
 638, 647, 660, 689, 701 
 V. Charlestown (98 Mass. 80) 1022 
 V. Charlestown (13 Allen, 190) 1028 
 V. Freeholders (2 Dutch. (N. J.) 
 
 326) 945 
 
 V. Harris (61 N. Y. 448) 626, 629 
 
 V. Hillsdale (7 Mich. 115) 637, 639 
 V. Macon (54 Ga. 460) 980 
 
 0. Manufacturing Co. (1 Sneed, 
 
 698) 188, 189 
 
 V. Milwaukee (24 Wis. 270) 1020, 1021 
 V. Milwaukee (27 Wis. 191) 1020 
 V. Racine (5 N. W. R. 352) 465 
 
 V. Shipman (24 III. 614) 453 
 
 V. South Park Commrs. (61 111. 
 
 115) 488 
 
 Cook Co. V. Chicago, etc. Co. (35 HI. 
 
 460) 907 
 
 V. McCrea (93 111. 236) 115, 116 
 
 V. Bailroad Co. (35 III. 465) 919 
 
 Cooley V. Board of Wardens (12 How. 
 
 296) 1.3:! 
 
 ». Essex (3 Dutch. (N. J.) 415) 930 
 V. Freeholders (3 Dutch. (N. J.) 
 
 415) 719, 1009 
 
 .-. Granville (10 Cush. 56) 41, 117 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 Cooley I). Westbrook (57 Me. 181) 1052 
 Coolidge V. Learned (8 Pick. 504) 646 
 Coombs V. Furrington {i'Z Me. 8S2) 1025, 
 1029, 1040 
 Cooper V. Alden (Harr. Ch. 72) 643, 659, 
 
 660 
 V. Atlanta (53 Ga. 638) 971 
 
 V. Dismal Swamp Co. (2 Murphy 
 
 (N. C), 196) 818 
 
 V. Gosling (9 L. T. N. S. 77) 606 
 
 V. Lampeter (8 Watts, 128) 298 
 
 V. Reansbey (8 Watts, 128) 298 
 
 V. Savannah (4 Ga. 68) 8U 
 
 ». Smith (9 S. & R.26) 6S2 
 
 Cope V. Thames, etc. Co. (3 Exeli. 841) 175 
 
 Copeland v. Packard (16 Pick, 217) 588 
 
 Copes V. Charleston (10 Rich. 491) 180, 
 
 189, 540 
 V. Mathews (18 Miss. 398) 263, 264 
 Copp V. Neal (7 N. H. 275) 577 
 
 Corbin v. American Mills (27 Conn. 
 
 274) 1057 
 
 Corby «. Hill (4 C. B. N. S. 556) 1028 
 Corder v. Commissioners (16 Ohio St. 
 
 353) 208 
 
 Cordiell v. Frizzell (1 Nev. 130) 246 
 
 Corey «. Rice (4 Lans. (N. Y.) 141) 721 
 Corfleld v. Coryell (4 Wash. C. C. 380) 7.35 
 Cornell v. Barnes ( 1 Denio, 35) 242 
 
 ... Guilford (1 Denio, 610) 59, 176, 
 261, 441, 461 
 Cornell College v. Iowa Co. (.32 Iowa, 
 
 620) 915 
 
 Corning v. Green (23 Barb. 33) 64, 68 
 
 Cornisho. Pease (18Me. 184) 288 
 
 u. Toronto Street Railway Co. 
 
 (23 U. C. C. P. 365) 1051 
 
 Comman v. Bast. Co. Railroad (5 Jur. 
 
 N. S. 657) 713 
 
 V. Eastern Counties Railway Co. 
 (4H. &N. 781) 1021 
 
 Cornwell v. Emerie (2 Ind. 35) 954 
 
 V. Metropolitan Commrs., etc. (10 
 Ex. 77 V) 1018, 1059 
 
 Corporation of Banbury (10 Mod. 346) 246 
 Corporation of Newcastle in re {i.2 CI. 
 
 & F. 402) 562 
 
 17. Scott (1 Caines, 543) 139 
 
 Corporation, etc. in re (19 U. C. Q. B. 
 
 450) 472 
 
 m re (6 U. C. L. J. 207) 472 
 
 Corporation, etc. of Chinguacousy (25 
 
 U. C. Q. B. 61) 1073 
 
 Correll v. B. C. R. & M. Railroad Co. 
 
 (38 Iowa, 120) 706 
 
 Corrigan v. Gage (68 Mo. 541) 331 
 
 Corwein v. Hames (11 Johns. 76) 423 
 Corwin v. Wallace (17 Iowa, 334) 461 
 Cosby V. R. R. Co. (10 Bush,288)656,660, 
 696, 700, 705, 711 
 Costar V. Brush (25 Wend. 628) 126, 142 
 Costello V. Mayor, etc. (63 N. Y. 48) 234 
 Coster V. New York (43 N. Y. 399) 665, 666 
 Cotes V. Davenport (9 Iowa, 227) 1001, 
 1070, 1071 
 
 Cotter V. Doty (5 Ohio, 394) 345, 3-49, 
 
 3.53 
 Cotton V. County Commrs. (6 Fla. 
 
 610) 179 
 
 V. Ellis (8 Jones (N. C), Law, 
 
 645) 253, 827 
 
 V. Price (50 Ala. 424) 259 
 
 V. Railway Co. (14 U. C. Q. B. 
 
 87) 607 
 
 V. Wood (8 C.B. N. S. 568) 713, 1021 
 
 Coulson W.Portland (Deady, 481) 121, 
 
 163, 605, 910, 918, 919, 942, 943 
 
 Coulter V. Robertson (24 Miss. 278) 198, 
 
 199 
 Council BhifEs v. Stewart (51 Iowa, 
 
 385) 161 
 
 County V. American Aid Society (93 
 
 U. S. 124) 558 
 
 O.Amy (14 Wall. 244) 847,850 
 
 V. Brinthall (29 Pa. St. 38) 668 
 
 II. Brinton (47 Pa. St. 367) 183, 190 
 «. County (12111. 1) 85 
 
 V. Dike (20 Minn. 363) 827 
 
 V. Newport (12 B. Mon. 538) 6.38, 644, 
 
 650 
 V. Quarter Sessions (8 Pa. St. 395) 62 
 V. State (11 III. 202) 85 
 
 County Commrs. u. Carter (2 Kan. 
 
 115) 482 
 
 V. Chitewood (8 Ind. 504) 314 
 
 V. Cox (6 Ind. 403) 193, 198, 199 
 
 V. Dayton (17 Minn. 260) 642 
 
 V. Duokett (20 Md. 468) 1038 
 
 V. Gibson (36 Md. 229) 958, 1038 
 
 V. Holcomb (7 Ohio, pt. 1, 232) 721 
 V. Jones (7 Ind. 3) 298 
 
 V. Latlirop (9 Kan. 453) 626, 642, 648, 
 649, 660 
 County Court v. County Court (3 
 
 Busli, 93) 214 
 
 V. Griswold (.58 Mo. 175) 82, 208, .58-3, 
 
 591, 504, .595 
 
 I). Simmons (10 111. 516) 262, 942, 945 
 
 ». Sparks (10 Mo. 117) 833 
 
 County of Cass u. Johnson (95 U. S. 
 
 360) 510 
 
 County of Charles b. Powell (22 Mo. 
 
 5-25) 673 
 
 County of Henry r. Nicolay (95 U. S. 
 
 619) 536 
 
 County of Leavenworth v. Barnes (94 
 
 U. S. 70) 509 
 
 County of Kimdolph v. Post (93 U. S. 
 
 502] 509 
 
 Cousins V. State (50 Ala. 113) 789 
 
 Coventry's Case (2 Salk. 429) 871 
 
 Covill r. Pliy (26 III. 432) 431 
 
 Covington v. Boyle (6 Bush, 204) 325, 
 
 747 
 
 „. Bryant (7 Bush (Ky.), 248) 1038 
 
 1046, 1062 
 
 V. Casey (3 Bush (Ky.), 698) 797, 
 
 798 
 
 V. East St. Louis (78 111. 548) 57, 213, 
 
 322, 335 
 
xl 
 
 TABLE OF CASES CITED. 
 
 Covington v. Ludlow (1 Met. 295) 307, 310, 
 
 311 325 
 1). Maberry {9 Bush, 304) '257 
 
 Covington, etc. Co. v. Barren Co. (10 
 
 Bush, 604) 95 
 
 V. Covington (9 Bush, 127) 125, 700, 
 
 .708 
 Covington County v. Dunklein (52 
 
 Ala. 28) 840 
 
 V. Kinney (45 Ala. 176) 1009 
 
 Covington Street, etc. v. Parker (9 
 
 Bush, 455) 713 
 
 Cowan's Case (1 Overton, 311) 675 
 
 Cowan V. Fulton (23 Gratt. 579) 819 
 
 Cowdin V. Huff (lOIud. 88) ' 253 
 
 Cowen V. West Troy (43 Barb. 48) 332, 
 461, 599, 800 
 Cowles V. Brittain (2 Hawks (N. C), 
 
 Law & Eq. 204) 735 
 
 ». Gray (14 Iowa, 1) 639,647 
 
 V. Mercer Co. (7 Wall. 118) 935 
 
 Cowley V. RushviUe (60 Ind. 327) 364 
 
 V. Sunderland (6 H. & N. 565) 980, 
 
 987, 989, 991, 1078 
 
 Cox V. Burlington (43 Iowa, 612) 255 
 
 V. Griffin ( 18 Ga. 728) 646, 656 
 
 V. Louisville, etc. Co. (48 Ind. 
 
 178) 609. 626, 632, 705 
 
 V. St. Louis (11 Mo. 431) 408 
 
 i>. Turnpike Co. (33 Barb. 414) 1024 
 
 Coy V. Lyons (17 Iowa, 1) 839, 841, 842, 
 
 848 
 Craft V. Jackson Co. (5 Kan. 518) 915 
 Crafter v. Metropolitan R. W. Co. (L. 
 
 R. 1 C. P. 300) 1018, 1021 
 
 Craig V. Burnett (32 Ala. 728) 265 
 
 V. Railroad Co. (39 N. Y. 404) 714 
 
 V. Sedalia (63 Mo. 417) 1025, 1035, 
 
 1040 
 
 V. Vicksburg (31 Miss. 216) 479 
 
 Cramer v. Burlington (45 Iowa, 627) 1051 
 
 Crandall v. Amador (20 Cal. 72) 821 
 
 V. Nevada (6 Wall. 35) 733 
 
 Crane in re (5 Pet. 190) 819 
 
 V. Des Moines (47 Iowa, 105) 255 
 
 V. Fond du Lao (16 Wis. 196) 572, 839 
 
 V. Janes viUe (20 Wis. 305) 767 
 
 V. Urbanna (2 III. App. 559) 476, 482 
 
 Crangle v. Harrisburg (1 Pa. St. 132) 609 
 
 Cranston v. Augusta (61 Ga. 572) 167 
 
 Crawford v. Burrell (53 Pa. St 219) 773 
 
 0. Delaware (7 Oluo St. 459) 705, 716, 
 
 1002 
 Crawford Co. v. Iowa Co. (2 Chand. 
 
 14) 214 
 
 V. Wilson (7 Ark. 214) 481, 484 
 
 Crawshaw v. Roxbury (7 Gray, 374) 165, 
 
 460 
 Craycraft v. Selvage (10 Bush, 696) 441, 
 456, 476, 476, 743, 796, 810 
 Creal v. Keokuk (4 Greene (Iowa), 
 
 47) 683, 1001 
 
 Creamer v. Bates (49 Mo. 523) 475 
 
 Creighton v. Manson (27 Cal. 613) 752 
 
 V. Piper (14 Ind. 182) 235 
 
 Creighton v. Ran Francisco (42 Cal. 
 
 446) 77, 102, 104, 823 
 
 i>. Scott (14 Ohio St. 438) 748,794, 
 
 796 
 0. Toledo (18 Ohio St. 447) 475 
 
 Crepps V. Harden (Cowp. 640) 348 
 
 Cresson's Appeal (30 Pa. St. 437) 563 
 Cressy v. Hestonville (75 Pa. St. 88) 1027 
 Crist V. Trustees (10 Ind. 452) 298 
 
 Crockett v. Boston (5 Cush. 182) 589,630 
 Croft u. Peterborough (5 U. C. C. P. 
 
 35) 325, 1069 
 
 Cromarty v. Boston (127 Ma* 329) 1029 
 Cromniett :;. Pearson ( 18 Me. 344) 297, Sll 
 Cromplfcn v Zabriskle ( 101 U. S. 601) 909, 
 
 916 
 Cromwell v. Sac Co. (96 U. S. 51) 499, 
 
 500 
 Cronan v. Municipality (5 La. An. 
 
 537) 474 
 
 Cronin v. Jersey City (38 N. J.L.410) 743 
 
 Cronins v. People (22 Alb. L. J. 430) 372 
 
 Crosby v. New London (26 Conn. 121) 552 
 
 .. Warren (1 Kicli. Law, 385) 346 
 
 352 375 
 
 Cross V. Mayor, etc. (18 N. J. Eq. 311) 672 
 
 V. Morri-stown (18 N. J. Eq. 305) 114 
 
 .322, 463, 663, 667, 670, 676, 767, 
 
 896 
 
 V. Plymouth Co. (125 Mass. 557) 621 
 
 Crossvett u. Janesville (28 Wis. 420) 908 
 
 974, 1004, 1(105 
 
 Crowder v. Tinkler (19 Ves. 617) 379 
 
 Crowell V. Sonoma Co. (25 Cal. 313) 968, 
 
 961, 963 
 Croxall V. Sheerd (5 Wall. 268) 541 
 
 Croydon Hospital v. Farley (6 Taunt. 
 
 467) 207 
 
 Cruger v. Railroad Co. (12 N. Y. 190) 599, 
 
 613,615 
 Cruikshanks v. City Council (1 Mc- 
 
 Cord, 360) 610, 749, 779 
 
 Crump V. Supervisors (52 Miss. 107) 455 
 Cuckfield Burying Board in re (19 
 
 Beav. 153) 606 
 
 Cuff V. Newark (36 N. J. L. 17) 1056 
 
 Culbertson v. Cincinnati (16 Ohio, 
 
 579) 915 
 
 Cumberland v. Magruder (34 Md. 
 
 381) 113, 164, 190 
 
 V. WiUison (60 Md. 138) 980, 992, 994, 
 995, 1005, 1066, 1066 
 Cumming v. Mayor (R. M. Charlt. 
 
 (Ga.) 26) 788 
 
 B. Mayor (11 Paige, 596) 254, 476, 610, 
 
 805 
 
 V. Police Jury (9 La. An. 503) 739 
 
 V. Prang (24 Mich. 523) 687 
 
 Cummings v. Saux (30 La. An. 207) 489 
 
 Cunningham v. Almonte (21 U. C. C. 
 
 P. 459) 327 
 
 V. Squires (2 W. Va. 422) 432, 924, 
 
 925 
 Curran v. Arkansas (15 How. 312) 198, 
 
 199 
 
TABLE OF CASES CITED, 
 
 xli 
 
 Curran v. Shattuck (24 Cal. 427) 608 
 
 Currier v. Lowell (16 Pick. Mass. 17) 10B3, 
 
 1064 
 
 Curry ?>. Bank (8 Port. 361) 219 
 
 V. Mt. Steriing (15 111. 320) 696, 599 
 
 V. Savannah (Ga. 1879) 572, 673 
 
 V. Stewart (8 Bush, 560) 262 
 
 Curtis 1-. Butler Co. (24 How. 435) 189, 
 
 298, 482 
 
 V. Fiedler (2 Black (U. S.), 478) 468 
 
 V. Hope (19 Conn. 154) 640 
 
 ■/. "Keesler (14 Barb. 621) 626 
 
 V. Leavitt (15 N. Y. 9) 146, 146, 155 
 
 V. Portland (59 Me. 483) 447 
 
 V. St. Paul, etc. Co. (20 Minn. 28) 621 
 
 V. Whipple (24 Wis. 350) 187, 491 
 
 Curwen v. Salkeld (3 East, 538) 386 
 
 Cashing v. Adams (18 Pick. 110) 723 
 
 V. Bedford (125 Mass. 526) 1022, 1027 
 
 D.Frankfort (57 Me. 541) 279,293 
 
 Cushraan v. Smith (34 Me. 247) 607 
 
 Cusick V. Norwich (40 Conn. 378) 686, 1062 
 
 Cuthbert u. Conley (32 Ga. 211) 363 
 
 V. Lewis (6 Ala. 262) 840 
 
 Cutler 1). Board, etc. (36 Miss. 116) 501 
 
 Cutliffo. Albany (60 Ga. 597) 740 
 
 Cutting !'. Stone (7 Vt. 471) 209 
 
 in re (94 U. S. 14) 819 
 
 Cuyler w. Rochester (12 Wend. 165) 451, 
 
 487, 973 
 
 Daily «. Columbus (49 Ind. 169) 146 
 
 V. St. Paul (7 Minn. 890) 82 
 
 Daist v. People (51 111. 286) 351 
 
 Tlale County «. Gunter (46 Ala. 118) 957 
 Dallam v. Oliver (3 Gill (Md.), 445) 814 
 Dalrymple v. Whittingham (26 Vt. 
 
 346) 480, 481 
 
 Dalton V. North Hampton (19 N. H. 
 
 362) 614 
 
 1/. Southeastern Ry. Co. (4 C. B. • 
 
 N. S. 298) 1042 
 
 Dalzell 0. Davenport (12 Iowa, 437) 1005 
 
 Dameron v. Irwin (8 Ired. Law, 421) 264 
 
 Damon v. Granby (2 Pick. 345) 64, 282, 
 
 294, 296, 297, 298, 303, 447, 460, 
 
 483 
 
 V. Scituate (119 Mass. 66) 1040 
 
 V. Scituate (20 Am. Rep. 315) 1051 
 
 Damodhar Gordhani i'. Deoran Kanji 
 
 (L. R. 1 App. Div. 332) 68 
 
 Uamour v. Lyons City (44 Iowa, 276) 683, 
 711, 970, 1071 
 Dana v. Jackson St. Wharf Co. (31 
 
 Cal. 118) 136, 568 
 
 V. San Francisco (19 Cal. 486) 481 
 Danbury, etc. R. R. Co. v. Norwalk 
 
 (37 Conn. 109) 1075 
 
 Dane v. Derby (54 Me. 95) 868, 879 
 
 Danforth v. Schoharie Turnpike Co. 
 
 (12 Johns. 227) 455 
 
 Daniel v. Mayor, etc. of Memphis (11 
 
 Humph. 882) 106, HI, 472 
 
 V. New Orleans (26 La. An. 1) 740, 
 
 797 
 
 Daniel v. North (11 East, 375) 661 
 
 V. Potter (4 C. & P. 262) 1059 
 
 Danielly v. Cabaniss (62 Ga. 211) 105, 121, 
 
 147, 651 
 Daniels v. Burford (10 U. C. Q. B. 
 
 481) 260, 325, 902 
 
 «. Denver (2 Colorado, 669) 1073 
 
 V. Hilgard (77 111. 640) 171 
 
 11. Railroad Co. (35 Iowa, 129) 607 
 
 V. Wilson (27 Wis. 492) 642 
 
 D'Antignac v. Augusta (31 Ga. 700) 767 
 
 Danville v. SutherUn (20 Gratt. 555) 487 
 
 Danville, etc. Co. v. Commonwealth 
 
 (73 Pa. St. 38) 704 
 
 Danville, etc. Co. v. Parks (88 111. 463) 788 
 Danzeiser v. Cook (40 Ind. 65) 1048 
 
 Darby v. Crowland (38 U. C. Q. B. 
 
 338) 326, 935, 1076 
 
 Dargan v. Mobile (31 Ala. 469) 981, 983 
 
 V. Waddell (9 Ired. 244) 379 
 
 Darling v. Gunn (50 III. 424) 800 
 
 V. St. Paul ( 19 Minn. 389) 123, 357 
 
 ». Westmoreland (52 N. H. 401) 1028 
 
 Darlington v. Commonwealth (41 Pa. 
 
 St. 68) 314, 343, 599, 636, 638 
 
 V. Jackson Co. (101 U. S. 688) 610 
 
 V. New York (31 N. Y. 164) 76, 90, 91, 
 
 92, 95, 96, 838, 957, 991 
 
 Darst B. People (62111. 306) 230, 378, 882 
 
 Dart V. Houston (22 Ga. 506) 83 
 
 Dartmouth College v. Woodward (4 
 
 Wheat. 518) 26, 74, 75, 92 
 
 Dashiell v. Atty.-Gen. (5 H. & J. 392) 566 
 
 Davenport v. Bird (34 Iowa, 524) 368, 
 
 405, 406, 421 
 
 V. Hallowell (10 Me. 317) 441, 447 
 
 V. Insurance Co. (17 Iowa, 276) 220, 
 
 455, 571, 672 
 
 0. Kelly (7 Iowa, 102) 388, 389 
 
 V. Lord (9 Wall. 409) 864, 866 
 
 V. Mayor (37 N. Y. 668) 1030 
 
 V. Railroad Co. (16 Iowa, 348) 727, 
 
 740, 770, 787 
 
 V. Ruckman (37 N. Y. 668) 1024, 1037, 
 
 10.39, 1040, 1047, 1051, 1059 
 
 V. Ruckman (10 Bosw. (N. Y.) 
 
 ^0) 1059 
 
 V. Stevenson (34 Iowa, 225) 697, 704 
 Davenport Cent. R. R. Co. v. Daven- 
 port, etc. Co. (43 Iowa, 301) 709 
 Davenport Gas Co. o. Davenport (13 
 
 Iowa, 229) 162 
 
 Davidson v. New Orleans (98 U. S. 
 
 97) 751 
 V. Portland (69 Me. 116) 1041 
 V. Ramsey Co. (18 Minn. 482) 180 
 
 DaviesK. Stephens (7 C. & P. 670) 627 
 Daviess Co. v. Huidekoper (98 D. S. 
 
 98) 510 
 Davis V. Bangor (42 Me. 522) 655, 657, 
 
 931, 1017, 1027, 1028, 1034 
 ». Bath (17 Me. 241) 41 
 
 V. City Council (51 Ala. 139) 949 
 V. Clinton (50 Iowa, 585) 687, 689 
 V. Dudley 4 Allen, 567) 1022, 1035 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 Davis V. Graves (38 N. J. L. 104) 131 
 V. Hill (41 N. H. 329) 1018 
 
 V. Lamoille Flank Road Co. (27 
 
 Vt. 602) 1052 
 
 o. Leominster (1 Allen, 182) 1064 
 V. Lowden (Garth. 29) 347 
 
 V. Mayor (14 N. Y. 506) 126, 323, 657, 
 659, 697, 707, 708, 710, 913 
 v. Mayor, etc. (2 Duer, 663) 904 
 
 B. Montgomery (51 Ala. 139) 951, 
 983 1037 
 V. Proprietor (8 Met. 321) ' 145 
 
 V. Read (65 N. Y. 566) 778, 779 
 
 V. Russell (5 Bing. 855) 238 
 
 •,: Sabita (63 Pa. St. 90) 638 
 
 ^. School District (24 Me. 349) 461, 
 
 462 
 V. State (7 Md. 151) 71 
 
 V. State (4 Stew. & P. 83) 368 
 
 V. Winslow (51 Me. 264) 723 
 
 V. Woolnough (9 Iowa, 104) 71, 417 
 Davison College v. Chambers (3 Jones 
 
 Eq. 253) 557, 558, 569 
 
 Dawes v. Hawkins (4 Law T. N. S. 
 
 288) 632 
 
 Daws in re (8 A. & E. 736) 927 
 
 Dawson v. Ins. Co. (15 Minn. 136) 915 
 
 V. Thurston (2 H. & M. 132) 819 
 
 Dawson Co. v. McNamara (4 N. W. 
 
 R. 991) 147,496 
 
 Day V. Green (4 Cush. 433) 124, 296 357, 
 
 395, 977 
 
 V. Kent (1 Oreg. 123) 226 
 
 V. Milford (5 Allen, 98) 1030, 1031 
 
 V. Schroeder (46 Iowa, 546) 650, 666 
 
 Dayton v. Pease (4 Ohio St. 80) 950, 984, 
 
 1046, 1066 
 
 V. Quigley (29 N. J. Eq. 77) 331, 333 
 
 V. Rutland (84 111. 279) 640 
 
 Dean !>. Borchenius (30 Wis. 286) 465, 
 
 795 808 826 
 
 u. Charlton (23 Wis. 590) '465,'466, 
 
 906 
 ». Gleason (16 Wis. 1) 740,763,774, 
 778, 920 
 V. Jay (23 Me. 117) 288 
 
 V. Madison (7 Wis. 688) ■ 165 
 V. New Milford Township (5 W. 
 
 & S. 545) 984, 1038 
 
 Dcane v. Todd (22 Mo. 90) 121, 911, 919 
 Deansville Cemetery Ass. in re (66 
 
 N. Y. 569) 375, 588, 595 
 
 (5 Hun, 482) 375 
 
 De Armas ti. Mayor (5 La. 132) 649 
 
 Deaton v. Polk Co. (9 Iowa, 594) 621 
 
 DeBaum I). Mayor (16Barb. 392) 918 
 
 De Ben v. Girard (4 La. An. 30) 334 
 
 Debolt V. Cincinnati (7 Ohio St. 237) 257 
 
 V. Insurance Co. (1 Ohio St. 
 
 564) 126 
 
 Decatur o. Fisher (53 111.407) 1037, 1041, 
 
 1042, 1048 
 
 V. Paulding (14 Pet. 497) 826 
 
 I). Vermillion (77 111. 315) 256, 258 
 
 Decker v. Hughes (68 lU. 33) 189, 548 
 
 Decorah v. BuUis (25 Iowa, 12) 292, 293 
 V. Dunston (38 Iowa, 96) 367 
 
 w. Gillis (lOIowa, 234) 412 
 
 De Cordova v. Galveston (4 Tex. 
 
 470) 480, 486 
 
 Dedham Banki). Chickering (8 Pick. 
 
 335) 243 
 
 Deeds v. Sanborn (26 Iowa, 419) 793 
 
 Deeflir v. Bowen (61 Ind. 29) 907 
 
 Deford v. Mercer (24 Iowa, 118) 587 
 
 De Grave v. Monmouth (4 C. & P. 
 
 411; 19 Eng. C. L. 30C^ 293, 
 460 
 De Groot in re (6 Wall. 497) 826 
 
 Deiman v. Fort Madison (30 Iowa, 
 
 541) 793 
 
 Delabigarre v. Municipality (3 La. - 
 
 An. 230) 649, 670 
 
 Delacey v. Neuse, etc. Co. (1 Hawks, 
 
 274) 277, 836 
 
 Delafield v. Illinois (2 Hill, 159) 42, 155, 
 442, 460, 462 
 Delahanty v. Warner (75 III. 185) 278, 836 
 Delancey m re (52 N. Y. 80) 944 
 
 Delaney in re (43 Cal. 478) 403 
 
 Delaware Co. v. McClintock (51 Ind. 
 
 325) 549 
 
 Deleplaine v. Railway Co. (42 Wis. 
 
 214) 136 
 
 Delmonico v. New York (1 Sandf. 
 
 222) 985, 1075 
 
 Delphi V. Bowen (61 Ind. 29) 731, 918, 919 
 
 V. Evans (36 Ind. 90) 304, 310, 312, 
 
 814, 682, 683, 687,767, 797, 999, 
 
 1004 
 
 Demarest v. New Barbadoes (40 N. J. 
 
 L. 604) 257 
 
 V. New York (74 N. Y. 161) 75, 111 
 
 1). New York (11 Hun, 19) 75 
 
 V. Wickham (63 N. Y. 320) 291, 292, 
 
 829, 881, 913 
 
 Den II. Judges (3 H. & M. (Va.) 1) 836 
 
 ». Vreelandt (2 Halst. 352) 219 
 
 Denning v. Roome (6 Wend. 651) 304, 316, 
 
 317, 630, 992 
 
 Dennis v. Hughes (8 U. C. Q. B. 444) £98 
 
 V. Maynard (15 111. 477) 85 
 
 Denniston i-. Clark (125 Mass. 216) 683, 
 
 687 
 
 Denton v. Jackson (2 Johns. Ch. 320) 59, 
 
 556, 560, 916 
 
 Denver v. Capelli (4 Col. 25) 1073, 1074, 
 
 . 1077 
 Denver, etc. Railroad v. Denver (2 
 
 Col. 673) 657, 661, 709, 712 
 
 De Pauw v. New Albany (22 Ind. 
 
 204) 729 
 
 De Fere v. Bellevue (31 Wis. 120) 216 
 Derby v. Ailing (40 Conn. 410) 627, 638 
 Derecourt v. Corbishley (6 E. & B. 
 
 188) 238 
 
 Dermont v. Detroit (4 Mich. 435) 1073, 
 
 1074, 1077 
 
 De Russy v. Davis (13 La. An. 468) 117 
 
 Des Moines v. Casady (21 Iowa, 570) 815 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 Des Moinea v. C, R. I., & P. Railroad 
 
 Co. (41 Iowa, 569) 786 
 
 V. Hall (24 Iowa, 234) 625, 627, 632, 
 
 640, 664, 689 
 
 ». Layman (21 Iowa, 153) 613 
 
 Des Moines Gas Co. v. Des Moines 
 
 (44 Iowa, 505) 121, 323, 693 
 
 Desmond v. McCarty (17 Iowa, 525) 315 
 
 Detroit v. Beckman (34 Mich. 125) 968, 
 
 969, 992, 995, 998, 1046 
 
 V. Blakeby (21 Mich. 84) 968, 969, 
 
 -1009, 1012, 1015, 1031, 1038, 
 
 1046, 1047 
 
 a. Corey (9 Mich. 165) 88, 89, 934, 
 
 1046, 1053, 1058, 1075, 1077 
 
 V. Detroit P. R. Co. (37 Mich. 
 
 558) 654 
 
 «. Jackson (1 Doug. 106) 445,460 
 V. Martin (34 Mich. 170) 942, 943, 944 
 V. Plank Road Co. ( 12 Mich. 333) 654, 
 
 677 
 0. Railroad Co. (23 Mich. 173) 625, 
 633, 635, 636, 638, 640, 661 
 ». Railroad Co. (39 Ind. 598) 286 
 V. Rediield (19 Mich. 376) 256, 257 
 V. Whittemore (27 Mich. 281) 473 
 De Varaigne v. Fox (2 Blatch. C. C. 
 
 95) » 583 
 
 De Vaux v. Detroit (Harring. Ch. 
 
 Midi. 98) 666 
 
 Deverill b. Grand Trunk Railway Co. 
 
 (25 U. C. Q. B. 517) 1021 
 
 Devlin i>. New York (63 N. Y. 8) 71, 436, 
 
 934 
 Devor v. McClintock (9 Watts & S. 
 
 80) 217 
 
 Derore's Appeal (56 Pa. St. 163) 211, 213 
 
 De Voss i>. Richmond ( 18 Gratt. 338) 89, 
 
 154, 155, 479, 523, 936 
 
 Devoy v. New York (39 Barb. (N. Y.) 
 
 169) 253 
 
 Dew V. Parsons (18 Eng. Com. Law 
 
 87) 942 
 
 Dew's Case (3 H. & M. (Va.) 1} 835 
 
 Dewey ». Detroit (15 Mich. 307) 949, 
 
 1048, 1052 
 
 V. Supervisors (62 N. Y. 294) 940 
 
 Dewitt ?;. Duncan (46 Cal. 342) 683 
 
 V. San Francisco (2 Cal. 289) 166, 559 
 
 Dey V. Jersey City (19 N. J. Eq. 412) 281, 
 
 290, 296, 341, 443 
 
 V. Lee (4 Jones, 238) 204, 303 
 
 De Zeng v. Beekman (2 Hill, 489) 576, 
 
 577 
 
 Diamond v. Cain (21 La. An. 309) 83 
 
 V. Lawrence Co. (37 Pa. St. 353) 479, 
 
 552 
 Dickenson v. Fitchhurg (13 Gray, 
 
 546) 619 
 
 11. Poughkeepsie (74 N. Y. 65) 456, 
 
 464 
 
 Dickey v. Hurlburt (5 Cal. 343) 225 
 
 V. Reed (78 111. 261 ) 230, 232, 882 
 
 V. Telegraph Co. (46 Me. 483) 1025 
 
 Dickinson v. Worcester (7 Allen, 19) 1068 
 
 Dietz V. Central City (1 Col. 823) 54, 863, 
 
 365 
 
 Diggs in re (52 Ala. 381) 835 
 
 Digliton's Case (1 Vent. 82) 245 
 
 Dill V. Inhabitants (7 Met. 488) 441 
 
 V. Roberts (30 Wis. 178) 808 
 
 V. Wareham (7 Met. 438) 40, 451, 
 
 454, 938, 977 
 
 Dillard v. Webb (55 Ala. 468) 883 
 
 Dillingham v. Snow (5 Mass. 547) 41, 110 
 
 Dimes v. Petley (15 Q. B. 276) 376 
 
 Diraock v. Suffield (30 Conn. 129) 1028 
 
 Dingley v. Boston (100 Mass. 544) 167, 
 
 375, 383, 592 
 
 Dingman v. People (51 111. 277) 125 
 
 Dishonv. Smith (lOIowa, 212) 225 
 
 District of Columbia v. Saville (1 Mc- 
 
 Artliur, 581) 333 
 
 Dively v. Cedar Falls (21 Iowa, 565) 481 
 
 V. Cedar Falls (27 Iowa, 227) 162, 721 
 
 Diveny v. Elmira (51 N. Y. 506) 423, 1037, 
 
 1040, 1047 
 
 Divine w. Harvie (7J. J. Mon. (Ivy.) 
 
 489) 827 
 
 Dix V. Dummerston (19 Vt. 263) 472 
 
 Dixon V. Baker (65 111. 518) 1000, 1071, 
 
 1074 
 
 V. Cincinnati (14 Ohio, 240) 604, 924 
 
 V. Robinson (3 Mod. 108) 886 
 
 Doan V. Mayor, etc. (62 N. Y. 472) 798 
 
 Dodd V. Hartford (25 Conn. 232) 121, 919 
 
 V. Miller (14 Ind. 433) 43 
 
 Dodge V. B. C. R. & M. Railroad Co. 
 
 (34 Iowa, 276) ' 708 
 
 V. Commissioners (3 Met. 380) 607, 
 
 609 
 V. Gridley (10 Ohio, 173) 354 
 
 V. Williams (46 Wis. 70) 557 
 
 Dodson V. Cincinnati (34 Ohio St. 
 
 276) 1002 
 
 Doe V. Attica (7 Ind. 641) 626, 638, 642 
 
 V. Barnes (8 Q. B. 1043) 293 
 
 V. Chunn (1 Blackford, 336) 813 
 
 W.Jones (11 Ala. 6.3) 138,629,633, 
 
 637, 649 
 
 V. Norton (11 M. & W. 913) 205 
 
 V. Railway Co. (14 M. & W. 687) 607 
 
 Doering v. State (49 Ind. 56) 237, 238 
 
 Doherty v. Waltham (4 Gray, 596) 1018, 
 
 1027 
 
 Dolan V. Baltimore (4 Gill (Md.), 394) 775 
 
 V. Mayor (68 N. Y. 279) 259 
 
 V. Mayor (4 Abb. Pr. N. S. 397) 465 
 
 Dollar Savings Bank v. United States 
 
 (19 Wall. 277) 810 
 
 Donnaher v. State (16 Miss. 649) 696, 706 
 Donahue w. New York (3 Daly, 165) 1075 
 Donaldson v. Boston (16 Gray, 508) 1052 
 Donavan v. New York (33 N. Y. 291) 451 
 V. Springfield (12 Mass. 371) 621 
 V. Vicksburg (29 Miss. 247) 349, 351 
 Donnelly v. Tripp (12 R. I. 97) 973, 976 
 Donvin v. Strickland (57 N. Y. 492) 264 
 Dooley v. Meriden (44 Conn, 117) 1020 
 Doolittle V. RaUroad Co. (14 111. 381) 924 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 Doolittle V. Supervisors (18 N. Y. 155) 
 898, 904, 910, 913 
 Dorathy v. Chicago (53 111. 79) 806 
 
 Dorcliester v. Wentworth (31 N. H. 
 
 451) 604,924 
 
 Dore V. Gray (2 T. R. 358) 748 
 
 V. Milwaukee (42 Wis. 18) 116, 443, 
 
 1004 
 Dorgan v. Boston (12 Allen, 223) 431, 610, 
 
 747 
 
 V. Mobile (31 Ala. 469) 980 
 
 Dorlon v. Brooklyn (46 Barb. 504) 1048 
 
 Dorman v. JacksonvQle (13 Fla. 538) 998, 
 
 1000, 1005 
 
 Dorrosan v. Huttner (48 Ga. 183) 956 
 
 Dorsey v. Smith (28 Cal. 21) 259 
 
 Dougherty v. Hitchcock (85 Cal. 512) 767 
 
 Doughty «. Hope (3 Denio, 249) 476, 699 
 
 V. Railroad Co. (21 N. J. L. 442) 598 
 
 Douglass in re (46 N. Y. 42) 324 
 
 Douglass in re (3 Q. B. 825) 377 
 
 i;. Branch Bank (19 Ala 659) 206 
 
 V. Chatham (41 Conn. 211) 179, 192, 
 
 825 
 V. Commonwealth (2 Rawle, 262) 400 
 V. Essex (38 N. J. L. 214) 234, 832 
 V. Harrisonville (9 W. Va. 162) 895, 
 918 919 
 V. Placerville (18 Cal. 643) 118,' 909, 
 
 912 
 V. Pike Co. (101 U. S. 677) 510, 541, 
 
 552 
 
 V. State (31 Ind. 479) 259 
 
 V. Virginia City (5 Nev. 147) 146, 
 
 155, 436, 469 
 
 Douglasville v. Jones (60 Ga. 423) ■ 941 
 
 Doulson V. Clinton City (33 Iowa, 
 
 397) 1048 
 
 Dovaston v. Payne (2 Smith L. C. 
 
 142, 185) 625, 663 
 
 Dover «. Fox (9 B. Mon. (Ky.) 200) 626, 
 
 629, 642 
 
 K. Twombly (42 N. H. 59) 243 
 
 Street m re (18 Johns. 506) 601 
 
 Dow V. Bullock (13 Gray (Mass.), 136) 246 
 
 V. Humbert (91 U. S. 294) 265 
 
 Dowdney v. New York (54 N. Y. 186) 815 
 
 Downer ». Boston (6 Cush. 277) 795, 803 
 
 Downing v. Marshall (23 N. Y. 366) 561 
 
 V. Rugar (21 Wend. 178) 264, 298, 300 
 
 Dowg V. Chicago (11 Wall. 108) 895, 907, 
 
 919 
 Doyle B. Austin (47 Cal. 353) 728, 752, 
 771, 772, 774 
 V. Continental Ins. Co. (94 U. S. 
 
 535) 736 
 
 V. Falconer (1 Priv. Council App. 
 329) 271 
 
 Draining Co.'s Case (11 La. An. 
 
 338) 592, 611, 740, 752, 777 
 
 Drake v. Lowell (13 Mete. (Mass.) 
 
 292) 1024, 1030, 1031, 10.32 
 V. Phillips (40 111. 388) 704, 909, 911, 
 
 912 
 V. Railroad Co. (7 Barb. 508) 703, 704 
 
 Draper v. Ironton (42 Wis. 696) 1050, 1051 
 Drelier v. Fitchburg (22 Wis. 675) 1036 
 Drew V. New River Co. (6 C. & P. 
 
 754) 1074 
 
 Driver v. Railroad Co. (32 Wis. 569) 618, 
 
 618, 620 
 Drogheda in re (1 O'M. & H. 252) 226 
 Droneberger v. Reed (11 Ind. 420) 609 
 Drury v. Natick (10 Allen (Mass.), 
 
 169) 914 
 
 U.Worcester (21 Pick. (Mass.)44) 1018 
 Duane v. McDonald (41 Conn. 517) 833 
 Duanesburgh v. Jenkins (57 N. Y. 
 
 -177) 104, 540, 823 
 
 V. Jenkins (40 Barb. 574) 188, 548 
 Dublin!). Mayor,etc. (IMartin (La.), 
 
 184) 656 
 
 Dublin Case (88 N. H. 450) 569 
 
 Dubois t>. Augusta (Dudley Rep. 30) 329, 
 
 332, 372 
 
 V. Budlong (10 Bosw. 700) 379 
 
 V. Campau (24 Miclv 360) 813 
 
 V. Canal Co. (4 Weffd. 285) 448 
 
 Dubordieu v. Butler (49 Cal. 612) 822 
 
 Dubuque v. Benson (23 Iowa, 248) 627, 
 
 632, 689 
 V. Harrison (34 Iowa, 163) 812 
 
 u. 111. C«nt. R. R. (89 Iowa, 56) 766, 
 787, 788, 810, 811, 812 
 V. Insurance Co. (29 Iowa, 9) 781,788 
 V. Maloney (9 Iowa, 450) 629, 632, 
 638, 656, 689 
 V. Miller (11 Iowa, 683) 385, 391 
 
 V. Railroad Co. (4 Greene (Iowa), 1) 
 
 165, 180 
 V. Railroad Co. (37 Iowa, 95) 788 
 V. Rebman (1 Iowa, 444) 432 
 
 V. Stout (32 Iowa, 47, 80) 138, 140 
 V. Wooton (28 Iowa, 571) 324, 599, 
 
 801 
 Dubuque College v. Dubuque (13 
 
 Iowa, 655) 462 
 
 V. Township (13 Iowa, 55) 460 
 
 Ducat I). Chicago (10 Wall. 410) 736 
 
 V. Chicago (48 III. 172) 736 
 
 Duchess of Kingston's Case (20 How. 
 
 St. Tr. 356) 881 
 
 Ducker v. Hurlbut (6 Cal. 343) 221 
 
 Ducksworth v. Johnson (4 H. & N. 
 
 653) 1042 
 
 Duckwall V. New Albany (25 Ind. 283) 143 
 Dudley v. Trustees of Frankfort (12 
 
 B. Mon. (Ky.) 610) 667, 673, 678, 
 
 898, 899 
 
 V. Weston (1 Met. 477) , 318 
 
 V. Weston (3 N. Y. 9) 881 
 
 Duffey V. Tilton (14 La. An. 283) 669 
 
 Duffieldi>. Detroit (15 Mich. 474) 604 
 
 Duffields in re (Bright,. Elec. Cas. 646) 836 
 
 Duffy V. Baltimore (Taney, C. C. 
 
 200) 957 
 
 Dugan V. Baltimore (5 G. & J. 357) 139 
 
 V. Baltimore (1 G. & J. 499) 811, 812 
 
 V. United States (3 Wheat. 172) 240 
 
 Duggens. McGruder(l Miss. 112) 928 
 
TABLE OF CASES CITED. 
 
 xlv 
 
 Dngro in re (50 N. Y. 513) 465 
 
 Duke V. Rome (20 Ga. t>85) 952 
 
 V. Navigation Co. (16 Ala. 372) 883 
 Dumesnil w. Dupont (18 B. Mon. 
 
 (Ky.) 800) 379, 383 
 
 Dummer v. Jersey City (1 Spencer, 
 
 N. J. 86) 629, 645, 666, 661 
 
 Dunbar v. San Francisco (1 Cal. 355) 954 
 
 Duncan v. Hayes (22 N. J. Eq. 25) 379 
 
 u. Louisville (8 Bush, 98) 601, 602, 
 
 828 
 V. Niles (32 111. 5-32) 264 
 
 Duncumbe v. fort Dodge (38 Iowa, 
 
 281) 444,446 
 
 Dundy v. Richardson Co. (8 Neb. 508) 66 
 
 Dunham v. Chicago (55 111. 357) 775 
 
 V. Hyde Park (75 111. 371) 682 
 
 0, Rochester (5 Cow. 462) 331, 338, 
 
 349, 357, 360, 361, 388, 389 
 
 Dunion v. People ( 17 III. 416) 626 
 
 Dunlap V. York (16 Grant (Can.), 
 
 216) 606 
 
 Dunleith v. Reynolds (53 111. 45) 783 
 
 Dunn V. Charleston (Harper, Law, 
 
 189) 585, 693 
 
 ti. Rector (14 Johns. 118) 455 
 
 Dunning «. Aurora (40 111. 481) 659 
 
 V. Railroad Co. (10 Ind. 437) 110 
 
 Dunnovan v. Green (57 111. 63) 96, 166, 
 
 190, 648, 764, 922 
 
 Dunsmore's Appeal (52 Pa. St. 374) 76, 
 
 90, 214, 218, 406, 425 
 
 Du Page Co. v. Jenks (65 III. 275) 907 
 
 Durach's Appeal (62 Pa. St. 491) 77, 84, 
 
 790 
 Durant B. Carter (L R. 9 C. P. 261) 223 
 V. Iowa Co. (1 Woolw. 69) 500 
 
 B. Jersey City (1 Dutch. 309) 801 
 V. Kauflinan (34 Iowa, 194) 791 
 
 V. Palmer (5 Dutch. 544) 1038, 1059, 
 
 1061 
 
 V. Supervisors (26 Wend. 66) 810 
 
 Durfey v. Hoag (1 Aiken, 286) 311 
 
 Durgin v. Lowell <3 Allen, 3.98) 637 
 
 Durkee v. Janesville (28 Wis. 434) 764, 
 
 815, 1055 
 
 Durkin «. Troy (61 Barb. 437) 1020, 1021, 
 
 1022, 1040 
 
 Durr V. Howard (6 Ark. 461) 428 
 
 Dusenberry v. Newark (26 N. J. Eq. 
 
 295) 921 
 
 Dusseau v. Municipality (6 La. An. 
 
 675) 605, 928 
 
 Dutchess, etc. Co. v. Hatchfield (1 
 
 Hun, 678) 653 
 
 Dutton V. Strong (1 Black, 23) 134, 136, 
 
 136, 882 
 
 Dwight V. Commrs. (11 Cush. 201) 619 
 
 V. Springfield (4 Gray, 107) 604, 924, 
 
 926, 927 
 
 Dwight Printing Co. v. Boston (122 
 
 Mass. 683) 590 
 
 Dyckman v. Mayor (5 N. Y. 434) 692, 
 
 697, 698, 763 
 
 Dyer o. Chase (52 Cal. 440) 794 
 
 Dyer v. Wightman (66 Pa. St. 425) 622 
 Dygert v. Sclienck (23 Weud. 446) 720, 
 
 1069 
 
 Eager in re (46N. Y. 100) 464, 466, 7 '7, 794 
 Earle's Case (Carth.* 174) , 275 
 
 Earle v. New Brunswick (88 N. J. L. 
 
 47) 633 
 
 East Anglian R. Co. v. Eastern Coun- 
 ties R. Co. (11 C. B. 778, 21 
 L. J. (N. S.)C. P.23) 935 
 
 East Hartford v. Hartford Bridge Co. 
 
 (10 How. 511) 79, 90, 141, 143 
 East Hartford v. Hartford Bridge Co. 
 
 (17 Conn. 80) 214 
 
 East Kingston «. Towie (48 N. H. 87) 177 
 Lincoln v. Davenport (94 U. S. 
 
 801) 510 
 
 Lincolnshire in re (1 Sim. N. S. 
 260) 606 
 
 EastNissouri w. Horseman (16 U. C. 
 
 Q. B. 588) 260, 902 
 
 V. Horseman (9 U. C. C. P. 191) 902 
 East River Bank v. Butterworth (51 
 
 N. Y, 637) 940, 941 
 
 East St. Louis v. Giblin (3 111. App. 
 
 219) 1067 
 
 0. St. John (47 111. 463) 596, 597 
 
 V. Klug (3 111. App. 90) 1057 
 
 V. Wehrung (60 III. 28) 123 
 
 V. Wehrung (46 111. 392) 367, 363, 
 
 778 
 
 B. Wider (46 111. 351) 824 
 
 East Union o. Ryan (86 Pa. St. 459) 484 
 
 Eastman b. Meredith (-36 N. H. 284) 39, 
 
 44, 141, 960, 962, 963, 964, 982, 
 
 984, 985, 992, 1015, 1075 
 
 Easton v. Callender, Road in (11 
 
 Wend 90) 264 
 
 Easton's Case (12 A. & E. 645) 428 
 
 Eaton B. Boston, etc. Railroad Co. (51 
 
 N. H. 804) 1002, 1004, 1007, 1072 
 u. Manitowoc (44 Wis. 489) 27, 68, 
 
 814 
 
 V. State (7 Blackf. 65) 890, 893 
 
 V. Wobum (127 Mass. 270) 1026 
 
 Eaves B. Shattuck (35 N. H. 189) 41 
 
 Ebbw Vale Co. (L. R. 8 Eq. 14) 935 
 
 Ecclesiastical Commrs. b. Clerken- 
 
 well (4 L. T. N; S. 699) 726 
 
 Edenton v. Wool (65 No. Car. 379) 419 
 Edey b. Shrevepon (26 La. An. 636) 558 
 Edgar v. Dodge (11 Mass. 670) 923 
 
 Edgarton v. Huff (26 Ind. 35) 584, 897 
 Edgerton v. Municipality (1 La. An. 
 
 436) 79, 129 
 
 Edmunds v. Gookin (20 Ind. 477) 213 
 Edwards v. Jersey City (40 N. J. L. 
 
 176) 808 
 
 V. People (88 III. 340) 192 
 
 B. Railroad Co. (1 Myl. & Cr. 6-59) 318 
 
 B. Vesey (Cas. Temp. Hardw. 
 
 128) 316 
 
 Ege V. Koontz (8 Pa. St. 109) 942, 946 
 
 Egginton in re (2 E. & B. 717) 428 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 Egleston o. City Council {1 Const. S. 
 
 C. 45) 417 
 
 Egremont t>. Benjamin (125 Mass. 15) 262 
 Egyptian Levee Co. v. Hardin (27 Mo. 
 
 495) . 610, 776 
 
 Egypt St. in re (2 Grant (Pa.), Cas. 
 
 455) 113 
 
 Eidemiller v. Wyandotte City (2 Dil- 
 lon C. C. 376) 605 
 Eikenberry b. Bazaar (22 Kan. 556) 963 
 V. Bazaar (21 Kan. 649) 1009 
 Eilert v. Oslilcosh (14 Wis. 637) 767 
 Ela I). Smitli (5 Gray (Mass.), 121) 236 
 Elder v. DwiglitManuf'gCo. (4 Gray, 
 
 201) 430 
 
 Eldred v. Seaton (5 Oliio, 215) 261 
 
 Eldridge v. Smith (34 Vt. 484) 693 
 
 Elgin V. Eaton (83 111. 535) 999, 1005, 1008 
 V. Kimball (90 III. 356) 1071 
 
 Elias (,-. Nightingale (8 E. & B. 698) 377 
 Elizabeth v. Force (29 N. J. Eq. 587) 552 
 Elkins V. Athearn (2 Denio, 191) 825 
 
 Elkton Land Co. v. Ayres (62 Ala. 
 
 413) 907 
 
 Ellerman v. McMains (30 La. An. 190) 87, 
 
 134 
 
 Elliott V. Concord(27 N. H. 204) 1063,1064 
 
 D. Philadelphia (75 Pa. 342) 980, 982 
 
 V. Railroad Co. (32 Conn. 579) 714 
 
 0. Swartout (10 Pet. 137) 266, 941, 
 
 942, 947 
 
 Elliott Co. V. Kitchen (14 Bush, 289) 845 
 
 Ellis i;. Bridgenorth (4 L. T. N. S. 
 
 112) . 386 
 
 o. Iowa City (29 Iowa, 229) 1001, 
 1037, 1068 
 V. Sheffield Gas Co. (23 L. J. 
 
 Q. B. 42) 690 
 
 V. State (4 Ind. 1) 43 
 
 r. Washoe Co. (7 Nev. 291) 472 
 
 Ellison In re (20 Gratt. (Va.) 10) 232,929 
 
 Ellwell 0. Prop., etc. (3 H. L. Cas. 
 
 812) 670 
 
 Elmendorf i: Albany (17 Hnn, 81) 749 
 
 V. Ewen (2 N. Y. Leg. Obs. 85) 196, 
 
 236 
 
 V. Mayor (25 Wend. 693) 196, 209, 
 
 217, 245, 304, 341, 928 
 
 Elmore Co. v. Long (52 Ala. 277) 839 
 
 Elrod V. Bernaddtte (53 111. 368) 572, 673 
 
 Elston V. Chicago (40 111. 514) 942, 943 
 
 V. Crawfordsville (20 Ind. 272) 213 
 
 Elwell V. Greenwood (26 Iowa, 377) 659 
 
 Elwood V. Bullock (6 Q. B. 383) 362, 414 
 
 Ely I). Rochester (26 Barb. 133) 166 
 
 V. Supervisors (36 N. Y. 297) 381, 967 
 
 Embury «. Connor (3 Comst. 511) 583, 
 
 885, 586, 596, 599 
 
 Emerson v. Blairsville (2 Pitt (Pa.), 
 
 Rep. 39) 157 
 
 J7. Lexington (69 Mo. 157) 995 
 
 V. Newberry (13 Pick. 377) 460 
 
 V. Saltmarsh (7 A. & E. 266) 748 
 
 Emery v. Gas Co. (28 Cal. 345) 610, 751, 
 
 763, 776, 806 
 
 Emery v. Lowell (127 Mass. 138) 941, 944 
 V. Lowell (104 Mass. 13) 994, 1074, 
 
 1078 
 V. Mariaville (56 Me. 315) 481 
 
 u. Washington (1 Brayton (Vt.), 
 128) 640 
 
 Emigrant Co. v. Wright Co. (99 U. S. 
 
 339) 437 
 
 Emmerton v. Mathews (7 H. & N. 586) 392 
 
 Empire v. Darlington (101 U. S. 87) 535 
 
 Emporia v. Bates ( 16 Kan. 495) 808, 809 
 
 V. Norton (13 Kan. 569, 1874) 105 
 
 u. Norton (16 Kan. 236) 342 
 
 V. Volmer (12 Kan. 622) 358, 407, 
 
 ♦ 408, 409, 431 
 
 England ». Davidson (11 A. & E. 856) 166 
 
 English V. Chicot County (26 Ark. 
 
 454) 188, 189 
 
 Episcopal, etc. Soc. v. Episcopal 
 
 Church (1 Pick. 872) 206, 460 
 
 Erd V. St. Paul (22 Minn. 443) 1053 
 
 Erie v. Canal Co. (59 Pa. St. 174) 76, 100 
 
 V. Caulkiris (85 Pa. 247) 1054, 1056, 
 
 1058 
 
 V. Knapp (29 Pa. St. 173) 130 
 
 V. Schwingle (22 Pa. St. 384) 984, 
 
 1037, 1041 
 
 Ernst V. Kunkle (5 Ohio St. 520) 1005 
 
 Erskine v. Van Arsdale (15 Wall. 75) 948 
 
 Eschback v. Pitts (6 Md. 71) 811, 814 
 
 Essex v. Park (U Ex. C. C. P. 473) 244 
 
 V. Stroni; (8 U. C. L. J. 15) 244 
 
 V. Strong (21 U. C. Q. B. 149) 244 
 
 Estabrook v. State (6 Ala. 653) 731 
 
 Estep B. Keokuk Co. (18 Iowa, 199) 451 
 
 Estes i\ School District (33 Me. 170) 41 
 
 Estey II. Westminster (97 Mass. 324) 462 
 
 Estwick V. London (Sty. 43) 862 
 
 Etherington v. Wilson (L. E. 1 Chy. 
 
 Div. 160) 223 
 
 Ethridge v. Hill (7 Port. (Ala.) 47) 894 
 Eureka v. Davis (21 Kan. 578) 365 
 
 Eustace v. Johns (38 Cal. 3) 1021, 1029 
 Evan V. Avon (29 Beav. 44) 901 
 
 Evans o. Erie Co. (66 Pa. St. 222) 667, 
 
 668, 669 
 V. Evans.vil!e (23 Ind. 229) 635, 638 
 V. Job (8 Nev. 822) 68 
 
 V. Philadelphia Club (50 Pa. St. 
 
 107) 266, 269, 274, 275 
 
 1). Trenton (24 N. J. L. 766) 256, 257, 
 
 263 
 
 V. Utica (69 N. Y. 166) 1020, 1021, 
 
 1022, 1040 
 
 Evansville v. Evans (37 Ind. 229) 630 
 
 U.Hall (14 Ind. 27) 784,787 
 
 V. Martin (41 tnd. 145) 381 
 
 V. Paige (23 Ind. 525) 636 
 
 V. Pflsterer (34 Ind. 36) 921 
 
 Everett v. Council Bluffs (46 Iowa, 
 
 66) 378, 663 
 
 V. Grapes (3 L. T. N. S. 669) 376, 380 
 Evertson p. National Bank of New- 
 port (66 N. Y. 14) 652, 663 
 Every v. Smith (26 L. J. Exchq. 344) 632 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Ewbanks «. Ashley (36 111. 177) 348, 405, 
 
 40B, 421 
 
 Ewing V. Filley (43 Pa. St. 384) 226, 228, 
 
 232, 425, 432 
 
 0. St. Louis (5 Wall. 413) 605, 896, 
 
 919, 920, 922, 924, 925, 927 
 
 V. Thompson (43 Pa. St. 384) 231 
 
 Exchange Alley in re (4 La. An. 4) 696, 598 
 
 Exchange Bank a. Hines (3 Ohio 
 
 St. 1) 782 
 
 Exeter v. Glyde (4 Mod. 37) 277 
 
 Exon V. Starre (2 Show. 159) 248, 411 
 Express Cii. v. EUyson (28 Iowa, 370) 740 
 Eyman v. People (6 111. 8) 932 
 
 Facey v. Fuller (23 Mich. 527) 291 
 
 Factors, etc. Co. v. New Orleans (25 
 
 La. An. 454) 945 
 
 Fahey v. Harvard (62 111. 28) 1048, 1055 
 Fair v. London & N. W. Railway Co. 
 
 (21 L. T. N. S. 326) 1042 
 
 V. Moore (8 U. C. C. P. 484) 236, 447 
 V. Philadelphia (88 Pa. St. 309) 1068 
 Fairbanks v. Kerr (70 Pa. 86) 657 
 
 Fairchild v. Ogdensburgh, etc. Rail- 
 road Co. (15 N. Y. 337) 481, 483 
 Fairfield v. People (94 111. 244) 741 
 
 V. Ratclife (20 Iowa, 396) 763, 764 
 Fallen v. Boston (3 Allen, 38) 1040 
 
 Fallick V. Barber (1 M. & S. 108) 166 
 Falls V. Cairo (58 111. 403) 941, 942, 944, 945 
 Falmouth ». Watson (5 Bush (Ky.), 
 
 660) 766 
 
 Fane's Case (Doug. 153) 268 
 
 Fanning v. Gregoire (16 How. 524) 143, 
 
 445 
 Faribault v. Misener (20 Minn. 396) 762, 
 
 812 
 Farmers' Loan, etc. Co. v. Carroll (5 
 
 Barb. 613) , 568 
 
 Farmington v. Co. Commrs. (112 
 
 Mass. 206) 927 
 
 Famsworth ». Boston (121 Mass. 
 
 173) 601, 603, 859 
 
 Farnum v. Concord (2 N. H. 392) 962, 
 
 1015, 1040 
 
 Farrar v. Greene (32 Me. 574) 1022, 1023 
 
 Farrell v. Bridgeport (45 Conn. 191) 237, 
 
 258 
 
 B. King (41 Conn. 448) 309 
 
 «. Mayor, etc. of London (12 U. 
 
 C. Q. B. 343) 934, 935, 986, 1073, 
 
 1074 
 
 V. Oldtown (69 Me. 72) 1028, 1052 
 
 Farrelly v. Cincinnati (2 Disney 
 
 (Ohio), 516) 1041 
 
 Farwell ». Cambridge (11 Gray, 418) 619 
 V. Smith (1 Harr. 138) 410 
 
 Fash !;. Third Avenue Railroad Co. 
 
 (1 Daly, 148) 713 
 
 Fauntleroy v. Hannibal (1 Dill. 118) 109 
 Fauvia o. New Orleans (20 La. An. 
 
 410) 957 
 
 Fawcett v. Charles (13 Wend. 473) 269, 
 
 273 
 
 Fay in re (15 Pick. 243) 121, 143, 924, 926, 
 
 927 
 
 V. Noble (12 Cush. 1) 145 
 
 Fayette v. Shafroth (25 Mo. 445) 431 
 
 Fazakerly v. Wiltshire (1 Stra. 469) 345, 
 
 354, 414 
 V. Wiltshire (11 Mod. 353) 414 
 
 Fearing v. Irwin (55 N. Y. 486J 665, 666 
 Feital v. Middlesex Railway Co. (12 
 
 Am. Rep. 720) 1028 
 
 Feiten v. Milwaukee (47 Wis. 494) 602 
 Fell V. State (42 Md. 71) 63, 350 
 
 Fellows V. Oilman (4 Wend. 414) 242 
 V. School Dist. (39 Me. 559) 942 
 
 Fellowes v. New Haven (44 Conn. 
 
 240) 998 
 
 Feltmakers v. Davis (1 Bos. & P. 98) 331, 
 
 410,411 
 Felts !'. Mayor (2 Head, 263) 569 
 
 Feneloii's Petition (7 Pa. St. 175) 745 
 Fennel in re (24 U. C. Q. B. 238) 344, 347 
 Fennimore v. New Orleans (20 La. 
 
 .An. 124) 987 
 
 Ferguson v. Chittenden Co. (6 Ark. 
 
 479) 305 
 
 u. Earl of Kinnoul (9 CI. & F. 
 
 289) 278 
 
 V. Selma (43 Ala. 398) 373 
 
 Fernald v. Boston (12 Cush. (Mass.) 
 
 574) 1005 
 
 V. Lewis (6 Me. 264) <J61 
 
 Fertilizing Co. v. Hyde Park (98 
 
 U. S. 659) 168, 169, 170 
 
 Fetterly v. Russell (14 U. C. Q. B. 
 
 438) 459 
 
 Field V. Carr (59 III; 198)626, 630, 638, 639 
 
 V. Commonwealth (32 Pa. St. 478) 259, 
 
 273, 833 
 
 V. Des Moines (39 Iowa, 575) 954, 974 
 
 V. Girard College (54 Pa. St. 233) 234, 
 
 278 
 Fifth Street in re (17 Wend. 667) 998 
 Filbey «. Combe (2 M. & W. 677) 171 
 Finch V. Board, etc. (30 Ohio St. 37) 29, 
 
 959 965 
 V. Temaha Co. (29 Cal. 455) ' 782 
 Findler v. San Francisco (13 Cal. 
 
 534) 576 
 
 Fink t». Milwaukee (17 Wis. 26) 407, 409, 
 
 421 
 «. Newark (40 N.J. L. 11) 608 
 
 u. St. Louis (23 Alb. L. J. 77) 1054, 
 
 1065 
 
 Finley v. Dietrick (12 Iowa, 516) 213 
 
 V. Philadelphia (32 Pa. St. 381) 783 
 
 Finnell v. Kates (19 Ohio St. 405) 800, 
 
 806 
 Finney o. Oshkosh (18 Wis. 220) 475, 767 
 Fire Department v. Helfenstein (16 
 
 Wis. 136) 358, 740 
 
 V. Kip (10 Wend. 267) 62, 110 
 
 V. Wright (3 E. D. Smith (N. Y), 
 478) ' ' 734 
 
 First, etc. Church v. Ft. Wayne (36 
 
 Ind. 338) 777 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 First, etc. Church f. Utica, etc. Rail- 
 road Co. (6 Barb. 313) 654 
 First Cong. Soc. v. Atwater (23 Conn. 
 
 34) 667 
 
 V. Hartford (38 Conn. 274) 941 
 
 First Nat. Bk., etc. v. Cook (77 111. 
 
 622) 907 
 
 First Parish v. Steams (21 Pick. 148) 227, 
 
 294, 299 
 Fish V. Mayor, etc. (6 Paige (N. Y.), 
 
 268) 684 
 
 u. Weatherwax (2 Johns. Cas. 
 
 217) 252, 830 
 
 Fisher v. Beard (40 Iowa, 625) 642 
 
 V. Beard (32 luwa, 346) 630, 638 
 
 O.Boston (104 Mass. 87) 171,954, 
 
 956, 979, 982, 984 
 
 V. Graham (1 Cin. (0.) 113) 341 
 
 V. Harrisburgh (2 Grant Cases, 
 
 291) 331, 338, 345, 688, 802 
 
 0. McGirr (1 Gray, 1) 167, 380, 413 
 V. Prowse (2 Best & S. 770; 110 
 Eng. Com. Law, 770) 627, 630, 
 1061 
 V. St. Louis (44 Mo. 482) 456 
 
 V. School District (4 Cusb. 494) 296, 
 
 461 
 V. Thirkell (21 Mich. 1) 696, 1060, 
 
 1061 
 V. Val de Travers Asphalt Co. 
 
 (L. E. 1 C. P. Div. 511) 1062 
 
 ». Vaughn (10U.C.Q.B. 492) 205, 
 
 324, 331 
 
 Fisk V. Havana (88 Bl. 208) 634 
 
 Fiske B. Hazzard (7 R. L 438) 178 
 
 Fitch V. Pinckard (5 Dl. 76) 110, 117, 411, 
 
 767, 781 
 Fitz V. Boston (4 Cush. 365) 1034 
 
 Fitzgibbon v. Toronto (25 U. C. Q. B. 
 
 137) 661 
 
 Fitzhugh a. Custer (4 Tex. 391) 861 
 
 Flagg B. Palmyra (33 Mo. 440) 524, 546, 
 
 838 845 
 V. Worcester (13 Gray, 601) '995, 
 1005, 1063, 1068, 1069, 1073, 1078 
 Flanagan's Admr in re v. Wilmington 
 
 (4 Houst. 548) 937 
 
 Flatbush Avenue in re (1 Barb. 286) 748 
 Flatbush, Town of, in re (60 N. Y. 
 
 398) 86, 100, 823 
 
 Fleckner v. U. S- Bank (8 Wheat. 
 
 D. S. 338) 445 
 
 Fleishel v. Hightower (62 Ga. 324) 573 
 Fleming m re (4 Hill, 581) 818 
 
 0. Mershon (37 Iowa, 413) 912, 918 
 Fleming's Appeal (65 Fa. St. 444) 173 
 Flemingsburg v. Wilson (1 Bush, 
 
 203) 656 
 
 Fletcher v. Auburn, etc. Railroad Co. 
 
 (25 Wend. 462) 663, 697, 704 
 
 W.Lowell (15 Gray, 103) 236 
 
 V. Oshkosh (18 Wis. 229) 767 
 
 V. Peck (6 Cranch, 87) 326 
 
 Flewellyn v. Webster (6 Ohio St. 
 
 586) 205 
 
 Flint V. Clinton Co. (12 N. H. 43) 576 
 V. Russell (5 IMllon, 151) 379, 384 
 Flint River Steamboat v, Foster (5 
 
 Ga. 194) 406 
 
 Flori V. St. Louis (69 Mo. 341) 959, 961, 
 
 965 
 Floumoy v. Jefferson ville (17 Ind. 
 
 169) 475, 808, 810 
 
 Flower v. Adams (2 Taunt. 314) 1023 
 Floyd V. Commrs. (14 Ga. 354) 406, 418, 
 
 421, 424 
 
 17. Gilheath (27 Ark. 675) 907 
 
 1-. Turner (23 Tex. 293) 607 
 
 Floyd Acceptances (7 Wall. 666) 480, 520, 
 
 « 523, 551 
 
 Flynn v. Canton Co. (40 Md. 312) 950, 
 
 1021, 1029 
 
 Fogg B. Nahant (98 Mass. 578) 1022, 1035 
 
 V. Nahant (106 Mass. 278) 1022, 1040 
 
 FoUett 0. People ( 12 N. Y. 273) 720 
 
 FoUey v. Passaic (26 N. J. Eq. 216) 896 
 
 Folmer v. Nuckolls (6 Neb. 201) 464, 911 
 
 Folsom in re (56 N. Y. 60) 779 
 
 B. School Directors (91 111. 402) 147 
 
 B. Underbill (36 Vt. 580) 640, 1051 
 
 Fonda v. Canal Appraisers (1 Wend. 
 
 288) 925 
 
 Foot B. Bronson (4 Lans. 47) 1069 
 
 ». Prowse (1 Str. 625) 244,245,246 
 
 B. Prowse (3 Bro. P. C. 169) 244 
 
 FooteB. Cincinnati (11 Ohio, 408) 63 
 
 c. Johnson County (5 Dill. 208, 
 
 281) 501, 541, 552 
 
 B. Milwaukee (18 Wis. 270) 475, 920 
 
 B. Pike Co. (101 U. S. 688) 510 
 
 r. Salem (14 Allen, 487) 165 
 
 Force b. Batavia (61 111. 99) 191, 222, 225, 
 
 542 
 
 Ford in re (6 Lans. 92) 777, 800 
 
 V. Clough (8 Me. 334) 41 
 
 V. Hart (L. R. 9 C. P. 273) 223 
 
 V. Mayor of New York (63 N. Y. 
 
 640) 442 
 
 B. Pye (L. R. 9 C. P. 269) 223 
 
 B. Railroad Co. ( 14 Wis. 609) 697, 701, 
 
 704,714 
 
 B. Williams (13 N. Y. 577) 448 
 
 Foreman v. Canterbury ( Law Rep. 6 
 
 Q. B. 214) 985, 1027, 1038, 1047 
 Forristal v. People (3 III. App. 470) 247 
 Forster v. Forster (4 B. & S. 187) 856 
 Forsyth v. Atlanta (45 Ga. 152) 952 
 
 Forsythe b. Hooper (11 Allen. 419) 1057 
 Fort Dodge o. Moore (37 Iowa, 388) 771 
 Fort Edward, etc. Co. v. Payne (17 
 
 Barb. 567) 661 
 
 Fort Wayne v. Cody (43 Ind. 197) 68:} 
 B. Dewitt (47 Ind. 391) 1037, 1049 
 V. Jackson (7 Blackf. 36) 208 
 
 Fortune ». St. Louis (23 Mo. 539) 1-30 
 Forward r. Bartels (7 U. C. C P. 633) 223 
 Fosdick V. Perrysburg (14 Ohio St. 
 
 472) 189, 190, 768 
 
 Foss V. Chicago (56 Tl. 354) 778 
 
 Fossett B. Bearce (29 Me. 523) 286 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 Foster v. Callaway Co. (3 Dillon, C. 
 
 C. R. 201) 536 
 
 V. Coleman (10 Cal. 278) 485 
 
 V. Fowler (60 Pa. St. 27) 73, 572, 578 
 
 u. Kenosha (12 Wis. 616) 70, 94, 501 
 
 fc. Lane (lOFost. 305) 31 
 
 V. McKibben (14 Pa. St. 168) 265 
 
 V. Rhoads (19 Johns. 191) 855 
 
 ». St. Louis (4 Mo. App. 564) 1000 
 
 V. Scarf ( 15 Oliio St. 635) 222 
 
 w. Shaw (7 S. &K. 168) 219 
 
 Fourth Avenue in re (4 Wend. 452) 748 
 
 Fowle V. Alexandria (3 Peters, 398) 112, 
 
 951, 952, 963 
 
 Fowler mVe (53 N. Y. 60) 594, 688 
 
 V. Pierce (2 Cal. 165) 827, 868 
 
 V. St. Joseph (37 Mo. 228) 922 
 
 V. Strickland (107 Mass. 552) 500 
 
 Fox V. Glastenbury (29 Conn. 204) 1051 
 
 W.Hart (11 Ohio, 414) 671 
 
 V. Northern Liberties (3 Watts 
 
 & S. (Pa.) 103) 976 
 
 wrRockford (38 111. 451) 676 
 
 V. Sackett (10 Allen, 535) 1051 
 
 V. State (5 How. 410) 371 
 
 Francis v. Cockrell (L. R. 5 Q. B. 
 
 184) 141 
 
 o. Troy (74 N. Y. 338) 116, 443, 444 
 
 Franey «. Miller ( 11 Pa. St. 435) 625 
 
 Frank in re (52 Cal. 606) 117, 381, 383, 
 
 335, 338, 358, 735 
 
 V. San Francisco (21 Cal. 668) 112, 
 
 842 
 Frankfort R. Co. v. Philadelphia (58 
 
 Pa. St. 119) 359, 711, 712 
 
 Frankfort Bridge Co. v. Frankfort 
 
 (18B. Mon. 41) 455 
 
 Franklin v. Fisk (13 Allen, 211) 1068 
 0. Southeastern Railway Co. (3 
 H. & N. 211) 1042 
 
 Franklin, etc. Co. v. Portland (67 Me. 
 
 - 46) 138, 378, 728, 986. 1076 
 
 Frazier u. Warfield (13 Md. 279) 120, 393 
 Frederick v. Augusts (5 Ga. 561) 105, 190, 
 400, 782, 918 
 V. Groshen (20 Md. 436) 910 
 
 Freedom v. Ward (40 Me. 383) 721 
 
 Freeholders v. Barber (2 Halst. 64) 357, 
 
 766 
 
 V. Strader (3 Harrison, N. J. 108) 720, 
 
 930, 958, 962, 963, 1009, 1038 
 
 Freeland v. Hastings (10 Allen, 570) 178, 
 
 187 
 
 B. Muscatine (9 Iowa, 461) 1005 
 
 Freeman v. Cornwall (10 Johns. 470) 264 
 
 Freeportw. Bristol (9 Pick. 46) 588 
 
 V. Isbpll (83 111. 440) 1018, 1026 
 
 V. Marks (59 Pa. St. 253) 826, 327 
 
 Freest v. Benton (37 N. J. L. 139) 774 
 
 Fremont Assoc. «. Sherwin (6 Neb. 
 
 48) 494 
 
 French v. Brunswick (21 Me. 29) 1028, 
 
 1034 
 V. Burlington (42 Iowa, 614) 161, 164 
 V. Commissioners (12 Mich. 267) 604 
 
 VOL. I. d 
 
 French v. Edwards (13 Wall. 511) 286 
 V. MUwaukee (6 N. W. R. 244) 1003 
 V. Quincy (8 Allen, 9) 168, 561, 571, 
 642, 650 
 V. Railroad Co. (2 La. An. 80) 6i6 
 V. Teschemaker (24 Cal. 518) 188 
 Frewin v. Lewis (18 Eng. Ch. 249) 900, 
 
 916, 917 
 Friday o. Floyd (63 111. 50) 177, 352 
 
 Frend v. Dennett- (4 C. B. N. S. 576) 373, 
 
 443 
 Frith V. Dubuque (45 Iowa, 406) 704 
 
 Fritsch v. City of Alleghany ( Pa. 1879, ■ 
 20 A. L. J. 373) 1027, 1038 
 
 Fritz V. Hobson (19 Am. Law Reg. 
 
 615) 377, 724 
 
 Frolichstein v. Mobile (40 Ala. 725) 897 
 Frommer v. Richmond (31 Grattan 
 
 (Va.),646) 360 
 
 Frost V. Belmont (6 Allen, Mass. 152) 902, 
 
 913 
 V. Chester (5 E. & B. 531) 246, 832 
 u. Waltham (12 Allen, 85) 1024, 1040, 
 
 1051 
 
 Fry V. Booth (19 Ohio St. 25) 226 
 
 Fry's Election (71 Pa. 302) 224 
 
 Fry's Election (10 Am. Rep. 698) 224 
 
 FuUam v. Brookfield (9 Allen, 1) 447, 450 
 
 Fuller in re (25 Ark. 261) 856 
 
 v. Chicago (80 111. 282) 163 
 
 w. Edings (11 Rich. L. 239) 134 
 
 V. Groton ( 14 Gray, 340) 174 
 
 V. Heath (89 111. 296) 163, 164 
 
 Fulton V. Davenport (17 Iowa, 404) 791, 
 
 793 
 V. Lincoln (9 Neb. 358) 116, 443, 466, 
 
 767 
 V. Mehrenfield (8 Ohio St. 440) 625, 
 
 626 
 
 V. Railroad Co. (21 111. 273) 191 
 
 Fulweiler u. St. Louis (61 Mo. 479) 424 
 
 Furman v. Knapp (19 Johns. 248) 769 
 
 V. New York (5 Sandf. 16) 139 
 
 w..Nicholl (8 Wall. 44) 93 
 
 Furman St. in re (17 Wend. 649) 210, 617, 
 
 618, 639, 682 
 
 Furnell v. Cotes (19 Ohio St. 405) 599 
 
 0. St. Paul (20 Minn. 117) 1029, 1038, 
 
 1039, 1048, 1049, 1052: 
 
 Gabler v. Elizabeth (42 N. J. L. 79) 842 
 Gabriel w. Clark (Cro. Car. 1-38) 250 
 
 Gachet v. MoCall (50 Ala. 307) 944 
 
 Gaddis V. Richland Co. (92 111. 119) 188, 
 
 191 
 
 Gaffney v. Gough (36 Cal. 104) 815 
 
 Gage V. Chicago (2 111. App. 332) 241 
 
 V. Graham (57 III. 144) 736 
 
 Gahagan v. Railroad Co. (1 Allen 
 
 (Mass.), 187) 707 
 
 Gaillard v. Laxton (2 B. & S. 363) 238 
 Galbreath ;;. Armour (4 Bell App. C. 
 
 374) 690, 697, 709 
 
 Gale V. Kalamazoo (23 Mich. 344) 124, 
 
 125, 361, 362, 886, 388, 446, 952 
 
i,A.£>ij£i \JJ; VAOJ^iO \J±l.MU±Jt 
 
 Gale V. Mead (2 Penio, 160) 264 
 
 V. South Berwick (61 Me. 174) 165 
 
 Galena v. Amy (5 Wall. 705) 502, 838, 
 
 842, 848 
 D. Corwith (48 111. 423) 154, 155, 158, 
 
 435 
 Galesburg v. Hawkinson (75 111. 152) 27, 
 
 210 
 
 V. Higley (61 111. 287) 1055 
 
 GaU V. Cincinnati (18 Ohio St. 563) 385, 
 
 386, 634, 683 
 
 Gallia County v. Holcom (7 Ohio 
 
 (pt. 1) 232) 117 
 
 Galloway i;. London (L. R. 1 H. L. 34) 559 
 V. Railroad Co. (63 N. Car. 147) 918 
 Gallup V. Tracy (25 Conn. 10) 298 
 
 Galveston v. Menard (23 Tex. 349) 136, 
 138, 1.39, 667,671,673 
 Gamble v. St. Louis (12 Mo. 617) 637 
 Gannon v. Hargadon ( 10 Allen, 106) 1068 
 Gano 0. State (10 Ohio St. 237) 894 
 
 Gardiner «. Boston Railroad Corp. 
 
 (9Cush. (Mass.)l) 702 
 
 Gardiner, etc. Co. v. Gardiner (5 Me. 
 
 133) 784 
 
 Gardner v. Boston (106 Mass. 549) 802 
 
 u. Newburg (2 Johns. Oh. 162) 589, 
 
 593, 605, 1066 
 
 V. Ogden (22 N. Y. 332) 437 
 
 V. State (21 N. J. L. 557) 770, 787 
 
 Garland ». Towne (55 N. H. 65) 667, 
 
 1021, 1032 
 
 Gamier v. St. Louis (37 Mo. 554) 253 
 
 Garrett a. St. Louis (25 Mo. 505) 611, 
 
 763, 776 
 Garrigus v. Parke Co. (39 Ind. 66) 192 
 Garrison v. Chicago (7 Biss. 480) 122, 
 
 159 691 
 V. New York (21 Wall. 196) 601,' 602, 
 
 603 
 Gartside v. East St. Louis (43 111. 47) 680, 
 
 896 
 Garvey in re (77 N. Y. 523) 116, 443, 781 
 Garvin v. Wells (8 Iowa, 286) . 408 
 
 Gas Co. V. County (30 Pa. St. 232) 785,786 
 0. San Francisco (9 Cal. 453) 89, 459 
 V. San Francisco (6 Cal. 190) 321, 341 
 Gaskil V. Dudley (6 Met. ( Mass.) 546) 838, 
 
 961 
 Gaskin's Case (8 T. R. 209) 273 
 
 Gass 0. State (34 Ind. 426) 225, 229 
 
 Gassett v. Andover (25 Vt. 342) 465 
 
 Gates 0. Delaware County (12 Iowa, 
 
 405) 249, 251 
 
 «. Hancock (45 N. H. 528) 463 
 
 Gault's Appeal (34 Pa. St. 95) 815 
 
 Gaunt V. Finney (L. R. 8 Ch. Ap. 8) 376 
 
 Gause v. Clarksville (5 Dill. 165) 151, 163, 
 
 154, 155, 93-5, 939 
 
 Gay V. Bradstreet (.39 Me. 580) 604 
 
 V. Cadby (L. R. 2 C.P. Div. 391) 171 
 
 Gearhart v. Dixon (1 Pa. St. 224) 312, 
 
 816, 768 
 Gebhardt v. Reeves (75 111. 301) 625, 632, 
 
 650 
 
 Gedge w." Commonwealth, (9 Bush, 
 
 61) 640, 641 
 
 Gee V. Lancashire, etc. Ry. Co. (6 H. 
 
 & N. 211) 1042 
 
 u. Metropolitan R. W. (L R. 8 
 
 Q. B. 177) 1023, 1051 
 
 B. Wilden (Lutw. 1320) 403 
 
 Geiger v. Filor (8 Flor. 325) 134, 696, 699 
 Gelpcke «. Dubuque (1 Wall. 175, 
 
 221) 156, 180, 189, 199, 479, 499, 
 501, 503, 509, 522, 524, 625, 540, 
 548 
 Geneva v. Cole (61 111. 397) 61, 811 
 
 Gerujis v. Loekett (13 La. 545) 898 
 
 GenTile v. State (29 Ind. 409) 68 
 
 George v. Oxford Township (16 Kan. 
 
 72) 225 
 
 Gerberling v. Wunnenberg (51 Iowa, 
 
 125) 6.37 
 
 Gerard v. Cook (2 Bos. & P. 109) 726 
 Germania v. State (7 Md. 1) 356, 789 
 Gerry v. Stoneman (1 Allen, 319) 176, 286 
 Ghenn v. Provincetown (105 Mass. 
 
 313) 1027, 1039, 1048 
 
 Gibbon a. Railroad Co. (36 Ala. 410) 165, 
 
 179 
 Gibbons ». Sheppard (65 Pa. St. 20) 925 
 Gibbs V. Liverpool Docks (3 H. & N. 
 
 164) 141 
 
 Giboney v. Girardeau (68 Mo. 141) 213, 
 
 793 
 
 Gibson «. Bailey (9 N. H. 168) 307, 308 
 
 V. Mayor, etc. of I'reston (L. R. 
 
 5 Q. B. 218) 994 
 
 Giesy v. Railroad Co. (4 Ohio St. 308) 694, 
 
 618, 621 
 GifEord v. Railroad Co. (10 N. J. Eq. 
 
 171) 909 
 
 Gilbert u. New Haven (40 Conn. 102) 312, 
 
 455 
 a. Roxbury (100 Mass. 186) 1020 
 V. Showerman (23 Mich. 448) 379 
 Gilbert Elevated Railroad Co. in re 
 
 (70N. Y. 361) 322,709 
 
 Gilchrist v. Garden (26 U. C. C. P. 1) 1018 
 V. Little Rock (1 Dillon, C. C. K. 
 
 261) 497, 551 
 
 V. Schmidling (12 Kan. 263) 352 
 
 Giles's Case (2 Stra. 881) 825 
 
 Giles B. School District (31 N. H. 304) 31, 
 
 223, 286 
 Gilham v. Wells (21 Alb. L. J. 319) 364 
 Gilkerson w. Justices (13 Gratt. (Va.) 
 
 677) 740, 747, 789 
 
 Gill V. Brown (12 Johns. 385) 263 
 
 Gillett f. Coramrs. Lyon Co. (18 
 
 Kan. 410) 964 
 
 Gillette v. Hartford (31 Conn. 351) 793 
 Gilman v. Deerfield (15 Gray (Mass.), 
 
 577) 1040 
 
 V. Laconia (55 N. H. 130) 960, 962, 
 
 1066, 1074 
 
 I.. Sheboygan (2 Black, 510) 94, 731, 
 
 740, 765, 782 
 
 V. Waterville (59 Me. 491) 941 
 
TABLE OF CASES CITED. 
 
 u 
 
 Gilmer v. Lime Point (18 Cal. 229) 590 
 1). Lime Point (19 Cal. 47) 598 
 
 Gilmore c Fox (10 Ifan. 509) 920 
 
 0. Holt (4 Pick. 25!i) 177 
 
 B.Lewis (12 Oliio, 281) 166,256, 
 
 258 
 «. Norton (10 Kan. 491) 67 
 
 1). Pope (5 Mass. 491) 261 
 
 Girard v. New Orleans (2 La. An. 897) 560, 
 
 562, 566 
 V. Philadelphia (7 Wall. 1) 75, 86, 87, 
 
 106, 111,498, 203, 206, 213, 557, 
 
 563, 664 
 Girard Will Case (2 How. 127) 568 
 Girardeau v. Riley (52 Mo. 424) 825 
 Glasby «. Morris ( 18 N. J. Eq. 72) 688, 
 
 689 
 Glasgow V. Rowse (43 Mo. 479) 739 
 
 Glashan mre (29 U. C. Q. B. 81) 428 
 
 Glass Co. 0. Boston (4 Met. 181) 942 
 
 Glastenbury v. McDonald (44 Vt. 
 
 450) 486 
 
 Glencoe v. People (78 111. 382) 221, 825, 
 829, 856, 864, 865 
 Gless V. White (5 Sneed, 475) 769 
 
 Glidden v. Unity (30 N. H. 104) 128 
 
 V. Unity (33 N. H. 571) 262 
 
 GloversviUe v. Howell (70 N. Y. 287) 63, 
 
 322 
 Goddard in re (16 Pick. 504) 114, 395, 407, 
 
 421 
 
 V. Jacksonville (15 111. 588) 363, 365 
 
 V. Smithett (3 Gray, 116) 879 
 
 Goddin a. Crump (7 Leigh, 120) 179, 731 
 
 Godfrey v. Alton (12 111. 29) 626, 633, 646 
 
 Goldersleve v. Alexander (2 Speer, 
 
 298) 222 
 
 Goldschmidt v. New Orleans (5 La. 
 
 An. 436) 484 
 
 Goldsmith v. New Orleans (31 La. 
 
 646) 365 
 
 Goldthwaite v. East Bridgewater (5 
 
 Gray (Mass.), 61) 1034 
 
 V. Montgomery (50 Ala. 486) 409, 
 
 433, 789 
 
 Gooch V. Gregory (65 N. C. 142) 572, 573 
 
 Goodale v. Fennell (27 Ohio St. 426) 93, 94 
 
 V. Tuttle (29 N. Y. 459) 1065, 1070 
 
 Goodall V. Milwaukee (5 Wis. 32) 683, 
 
 1002 
 Goodel V. Baker (8 Cow. 286) 288 
 
 Goodell in re (14 Johns. 325) 824 
 
 Goodenow o. Buttrick (7 Mass. 140) 112 
 Goodloe 0. Cincinnati (4 Ohio, 500) 1002 
 Goodnough w. Oshkosh (24 Wis. 549) 1052 
 Goodman r. Harvey (4 A. & E. 870) 499 
 V. Siraonds (20 How. 343) 500 
 
 Goodnow (I. Commissioners (11 Minn. 
 
 31) 480,482 
 
 Goodrell v. Jackson (20 Johns. 706) 556 
 
 Goodrich v. Brown (.30 Iowa, 291) 408, 431 
 
 V. Chicago (20 111. 445) 122, 127, 825, 
 
 950 
 
 V. Detroit (12 Mich. 279) 161, 436, 
 
 475, 476 
 
 Goodrich v. Milwaukee (24 Wis. 422) 1002 
 Goddtitle v. Alker (1 Burr. 153) 632, 663, 
 
 684 
 V. Alker (1 Kenyon, 427) 684 
 
 Goodwin in re (U. C. C. P. 254) 206 
 
 V. Cincinnati, etc. Co. (18 Ohio 
 
 St. 169) 617 
 
 V. Des Moines (23 Alb. Law Jour. 
 
 76) 1062 
 
 .;. McGehee (15 Ala. 233) 574 
 
 V. Kobarts (L. R. 1 App. Cas.476) 499 
 Gordon v. Appeal Tax (3 How. U. S. 
 
 133) 787 
 
 V. Baltimore (5 Gill (Md.), 231) 774, 
 
 787, 811, 941, 944, 
 
 V. Dearborn Co. (52 Ind. 322) 469 
 
 V. Farrer (2 Doug. 411) 265 
 
 V. Preston (1 Watts, 385) 574 
 
 V. Taunton (126 Mass. 349) 974 
 
 Gorgier v. Mierville (3 B. & C. 45) 499 
 
 Gorham v. Campbell (2 Cal. 135) 226 
 
 V. Cooperstown (59 N. Y. 660) 1027, 
 
 1048 
 V. Springfield (21 Me. 58) 62, 21.3, 216 
 Gorman v. Low (2 Edw. Ch. 324) 353 
 Goshen v. Croxton (34 Ind. 237) 407, 409 
 V. Kern (63 Ind. 468) 358, 396 
 
 Goshorn v. County (1 W. Va. 308) 189 
 GosUng V. Veley (19 L. J. Q. B. N. S. 
 
 135) 823 
 
 GosB V. Corporation (4 Sneed (Tenn.), 
 
 62) 393 
 
 Gosseliuk !>. Campbell (4 Iowa, 296) 352, 
 
 355 
 Goszler v. Georgetown (6 Wlieat. 593) 125, 
 168, 681, 682, 999, 1001 
 Goudier v. Cormack (2 E. D. Smith 
 
 254) 1058 
 
 Gould V. Atlanta (60 Ga. 164) 975 
 
 V. Booth (66 N. Y. 62) 1065, 1066, 
 
 1068, 1070, 1077 
 
 V. Gapper (5 East, 345) 929 
 
 V. Sterling (23 N. Y. 439) 180, 188, 
 
 191, 479, 501, 516, 523, 547, 549 
 
 V. Taylor Orphan Asylum (46 
 
 Wis. 106) 557 
 
 Goundie v. Water Co. (7 Pa. St. 233) 569 
 
 Gourley v. Allen (5 Cow. 644) 825, 829 
 
 ■V. Hawkins (2 Iowa, 75) 576 
 
 Govan v. Jackson (32 Ark. 553) 228 
 
 Governor t). Allen (8 Humph. (Tenn.) 
 
 176) 42 
 
 .*. Justices (19 Ga. 97) 963 
 
 <;. McEwen (5 Humph. 241) 76 
 
 V. Meredith (4 Term Rep. 790) 168, 
 
 953, 995, 1001 
 
 V. Plummer (2 Humph. (Tenn.) 
 
 500) 42 
 
 Goyne v. Ashley Co. (31 Ark. 552) 485 
 
 Graff V. Baltimore (10 Md. 544) 602, 603 
 
 GrafEns v. Commonwealth (3 P. & W. 
 
 502) 262 
 
 Graham v. Carondelet (33 Mo. 262) 290, 
 
 310, 341 
 V. Parham (32 Ark. 676) 849 
 
lii 
 
 TABLE OF CASES CITED. 
 
 Graham v. State (1 Ark. 171) 418 
 
 Granby v. Thurston (23 Conn. 416) 210, 
 
 214, 215 
 Grand, etc. Co. v. Hall (1 M. & G. 
 
 392) 670 
 
 Grand Chute v. Winegar (15 Wall. 
 
 355) 494, 509, 522, 524, 525, 526 
 Grand Bapids i;. Blakely (40 Mich. 
 
 367) 940 
 
 «. Gray (38 Mich. 461) 419 
 
 V. Hughes (15 Mich. 64) 346,433,678 
 Granger v. Avery (64 Me. 292) 210 
 
 «. Buffalo (6 Abb. N. Cas. 238) 732 
 V. Pulaski County (26 Ark. 37) 961, 
 
 1009 
 Grant v. Brooklyn (41 Barb. (N. Y.) 
 
 381) 1046, 1075 
 
 V. Commrs. (L. B. 11 Ir. C. L. B. 
 
 190) 1053 
 
 V. Courier (24 Barb. 232) 70 
 
 0. Davenport (18 Iowa, 179) 135, 136, 
 
 138, 1-39, 577, 639, 647 
 
 V. Davenport (36 Iowa, 396) 161,162, 
 
 436, 691, 786, 909, 912 
 
 V. Erie (69 Pa. 420) 127, 171, 950, 982, 
 
 1068, 1073 
 
 V. Fancher (5 Cow. 309) 261 
 
 Grassick v. Toronto (39 U. C. Q. B. 
 
 306) 1033 
 
 Graves v. Colby (9 Ad. & E. 356) 410, 411 
 
 V. Otis (2 Hill (N. Y.), 466) 998 
 
 V. Shattuck (35 N. H. 257) 723 
 
 Gray v. Brooklyn (10 Abb. Pr. N. S. 
 
 186) 76, 84. 90, 957 
 
 V. Hubble (32 L. J. Bep. N. S.) 1057 
 o. Iowa Land Co. (26 Iowa, 387) 652, 
 665, 666 
 K. PuUen (5 B. & S. 970) 1049 
 
 V. Bailroad Co. (13 Minn. 315) 697 
 V. Eollingsford (58 N. H.) 262 
 
 V. Sheldon (8 Vt. 402) 209 
 
 V. State (2 Barring. 76) 417, 430 
 
 Grayville u. Whittaker (85 111. 4.39). 1010 
 Great Western Bailway Co. & North 
 Cayuga in re (23 U. C. C. P. 
 28) 327 
 
 Greaves v. Newfoundland (23 L. T. 
 
 53) 606 
 
 Greeley v. People (60 HI. 19) 42; 610 
 
 V. Railroad Co. (53 Me. 200) 1068 
 
 Green v. Canaan (29 Conn. 157) 634 
 
 V. Cape May (41 N. J. L. 45) 116, 
 
 117, 461 
 
 V. Cheek (5 Ind. 105) 209 
 
 ». Danbv (12 Vt. 338) 1021,1034 
 
 V. Durham (1 Burr. 131) 291 
 
 V. IndianapoUs (25 Ind. 490) 68, 818, 
 
 409 
 V. Marks (24 III. 221) 572 
 
 V. Mayor (B. M. Charlt. 368) 71, 430, 
 
 788 
 B. Mayor (5 Abb. Pr. 503) 76, 476 
 </. Miller (6 Johns. 39) 297 
 
 V. Mumford (6 B. L 472) 919 
 
 D. Oaks (17 111. 249) 636 
 
 Green ». Portland (32 Me. 431) 704 
 
 V. Beading (9 Watts, 382) 683, 696, 
 998, 1007 
 V. Rutherford (1 Ves. 462) " 562 
 
 V. Savannah (6 Geo. 1) 168, 379, 380 
 V. State (8 Ohio, 310) 314 
 
 V. Swift (47 Cal. 536) 168 
 
 V. Underwood (42 N. Y. 140) 379 
 Green Township, Case of (9 Watts 
 
 & S. 22) 195 
 
 Greencastle «. Allen (43 Ind. 347) 457 
 Greene v. Mayor (60 N. Y. 303) 464, 467 
 Greenough v. Wakefield (127 Mass. 
 
 ^ 275) 176 
 
 Greensboro v. Mullens (13 Ala. 341) 367, 
 
 369 
 Greensburg v. Young (53 Pa. St. 280) 745 
 Greenville v. Mason (53 N. H. 516) 107, 
 
 215 
 Greenwich v. B. R. Co. (24 N. J. Eq. 
 
 217) 661 
 
 V. B. B. Co. (25 N. J. Eq. 665) 661 
 Greenwood v. Louisville (IB Bush, 
 
 226) 980, 982 
 
 Gregory v. Adams (14 Gray, 242) 1014, 
 
 1017, 1048 
 
 V. Bridgeport (41 Conn. 76) 126, 174, 
 
 175 
 
 V. Jersey City (34 N. J. L. 390) 436 
 
 V. Bailroad Co. (40 N. Y. 273) 372 
 
 Gribble v. Sioux City (38 Iowa, 390) 1040 
 
 Gridley v. Bloomington (68 111. 47) 695, 
 
 1059, 1061 
 
 V. Bloomington (88 111. 554) 395, 764 
 
 Grier v. Shackleford (3 Brev. 491) 232 
 
 V. Shackleford (Const. Rep. 642) 229, 
 
 432 
 V. Taylor (4 McCord (S. C), 206) 882 
 Grierson v. Ontario (9 U. C. Q. B. 
 
 623) 324, 331 
 
 Griffin v. Coleman (4 H. & N. 265) 238 
 
 V. Martin (7 Barb. 298) 686 
 
 V. Willow (43 Wis. 509) 1051 
 
 «. Mayor (5 Martin (La.), 279) 388 
 
 V. Mayor (9 N. Y. 456) 949, 950, 1037, 
 
 1040, 1047, 1048, 1052, 1061 
 
 V. Bising (2 Gush. 75) 600 
 
 V. Steele (1 Edm. Sel. Cas. 505) 872 
 
 Griffing v. Pintard (29 Miss. 173) 815 
 
 Griffith B. FoUett (20 Barb. 630) 265 
 
 V. Harries (2 M. & W. 335) 405 
 
 Griggs V. Foote (4 Allen, 195) 608, 935, 
 
 978, 998 
 Grim v. School District (57 Pa. St. 
 
 433) 943 
 
 Grimes v. Keene (52 N. H. 330) 262, 985, 
 
 1053 
 Grimshaw v. Bailway Co. (19 TJ. C. 
 
 Q. B. 493) 607 
 
 Grindley v. Barker (1 Bosw. & P. 236) 
 
 297 298 
 Grinham v. Willey (4 H. & N. 496) ' 238 
 Griswold v. Bay City (35 Mich. 452) 687. 
 
 688 
 V. Pelton (34 Ohio St. 482) 919 
 
TABLE OF CASES CITED. 
 
 liii 
 
 Griswold ii. Stonington (5 Conn. S67) 472 
 Grocers' Co. «. Donne (3 Bing. N. C. 
 
 34) 1074 
 
 Groenvelt v. Burwell (1 Ld. Raym. 
 
 454) 922 
 
 Grogan v. San Francisco (18 Cat. 590) 76, 
 92, 102, 463, 574, 649, 938 
 Groton v. Haines (36 N. H. 888) 1066 
 Grove v. Fort Wayne (45 Ind. 429) 962, 
 1011, 1030, 1031 
 Grube v. Nichols (36 111. 93) 684, 637 
 
 Grumbine v. Washington (2 Mc Arthur, 
 
 578) 979, 980 
 
 Guardians, etc. v. Vestry, etc. (L. R. 
 
 2 Q. B. Div. 145) 171 
 
 Guelph V. Canada Co. (4 Grant (Can.), 
 
 632) 631 
 
 Guerin v. Reese (33 Cal. 292) 810, 815 
 Guernsey ». Burlington (4 Dill. 372) 494, 
 
 595 
 Guest V. Brooklyn (69 N. Y. 506) 605, 757 
 Guilder v. Otsego (20 Minn. 74) 100 
 
 Guilford u. Supervisors (13N. Y. 148) 101, 
 102, 744, 898 
 Guillotte V. New Orleans (12 La. An. 
 
 432) 350, 393 
 
 Gulf R. R. Co. V. Morris (7 Kan. 210) 921 
 Gulic V. New (14 Ind. 93) 224, 418 
 
 Gulick V. Connely (42 Ind. 134) 477 
 
 Gunn V. County (3 Ark. 427) 825, 839 
 Gunnarssohn v. Sterling (92 111. 569) 363 
 Gurner v. Chicago (40 111. 165) 780, 808 
 Guthrie v. Armstrong (5 B. & A. 628) 297 
 t>. New Haven (31 Conn. 308) 640, 
 
 677 
 Gutzweller v. People (14 III. 142) 76, 85 
 Guy V. Baltimore (100 U. S. 434) 734, 735 
 Gwynne v. Cincinnati (3 Ohio, 25) 588, 
 
 634 
 V. Rees (2 U. C. P. R. 282) 205 
 
 Haag V. Board of Commrs., etc. (60 
 
 Ind. 511) ,146, 378, 971, 972, 973 
 Hackett v. Ottawa (99 U. S. 86) 510 
 
 Haekettstown ads. Schwackhamer 
 
 (37 N. J. L. 191) 144, 149, 154, 
 
 155, 481 
 
 Hackney Election (31 L. T. N. S. 69) 226 
 
 Haddock's Case (T. Raym. 439) 274, 416 
 
 Hadley v. Chamberlain ( U Vt. 618) 309 
 
 V. Mayor (33 N. Y. 603) 229, 232, 259, 
 
 276 
 V. Peabody (13 Gray, 200) 130 
 
 V. Taylor (L. R. 1 C. P. 53) 1059 
 Hafford v. New Bedford (16 Gray, 
 
 297) 954, 956, 978, 980, 982, 984, 
 
 988 
 
 Hagar v. Yolo Co. (47 Cal. 222) 727 
 
 Hagen v. Campbell (8 Port. (Ala.) 9) 136 
 
 Hager v. Burlington (42 Iowa, 661) 767, 
 
 797 
 Hagerstown v. Dechert (32 Md. 369) 419, 
 
 Hagner v. Heyberger (7 Watts & S. 
 
 104) 283, 291, 882 
 
 Hague V. Philadelphia (48 Pa. St. 527) 21, 
 
 442, 446, 451, 461, 462, 464, 485 
 
 Haight V. Keokuk (4 Iowa, 199) 689 
 
 Haines v. School District (41 Me. 246) 941 
 
 Halbert v. State (22 Ind. 125) 262, 263 
 
 Hale V. Cushman (6 Met. 426) 913 
 
 V. Houghton (8 Mich. 458) 173 
 
 V. Kenosha (29 Wis. 699) 740, 774, 
 
 778, 783 
 
 V. People (87 111. 72) 176 
 
 Haley v. Philadelphia (68 Pa. St. 45) 608 
 
 Haliburton v. Frankford (14 Mass. 
 
 214) 449 
 
 Hall V. Chippewa Falls (47 Wis. 267) 767 
 w. City of Kansas (54 Mo. 598) 1022 
 V. Cockrell (28 Ala. 607) 263, 264 
 ti. Houghton (8 Mich. 458) 436 
 
 V. Lowell (10 Cush. (Mass.) 260) 1020, 
 
 1053 
 V. McCaughey (51 Pa. St. 43) 658 
 V. Manchester (89 N. H. 295) 261 
 
 V. Manchester (40 N.H.410)1021,1027 
 V. Marysville (19 Cal. 391) 771 
 
 V. People (87 111. 72) 786, 737 
 
 V. People (57 111. 307) 856, 857 
 
 V. Railway Co. (14 L. T. N. S. 351) 606 
 V. Selectmen (89 N. H. 611) 819 
 
 V. Smith (2 Bing. 156) 264 
 
 V. State (20 Ohio, 8) 654 
 
 V. Supervisors (20 Cal. 691) 824 
 
 Hallenbeck «. Hahn (2 Neb. 377) 180 
 
 ti. Winnebago Co. (N. W. Rep. 
 
 1 111. Sup. 578) 961, 962 
 
 Halliday v. St. Leonards, etc. (11 C. 
 
 B. N. S. 192) 1075 
 
 Hallo well Bank v. Hamlin ( 14 Mass. 
 
 178) 318, 414 
 
 Halstead v. Mayor (3 N. Y. 430) 174, 451, 
 
 463, 473, 480, 484, 486 
 
 V. Mayor (6 Barb. 218) 174, 453 
 
 Ham V. Mayor, etc. (70 N. Y. 459) 978 
 
 !;. Miller (20 Iowa, 450) 812 
 
 V. Salem (10 Mass. 350) 589 
 
 Hamar v. Covington (3 Met. 494) 931 
 
 Hamden v. Railroad Co. (27 Conn. 
 
 158) 702 
 
 V. Rice (24 Conn. 350) 567 
 
 Hamerick v. Rouse (17 Ga. 56) 899 
 
 Hamersley v. New York (56 N, Y. 
 
 633) 601 
 
 Hamilton w. Carthage (24 111. 22) 412 
 V. Columbus (52 Ga. 435) 1074 
 
 V. Dubuque (50 Iowa, 213) 946 
 
 V. Fort Wayne (40 Ind, 491) 739, 740 
 V. McNeil (13 Gratt. 889) 209, 212 
 v. Mighels (7 Ohio St. 109) 29, 30, 
 968, 1009 
 V. Railroad Co. (9 Ind. 359y 445, 576 
 V. Railroad Co. (9 Paige (N. Y.), 
 
 171) 704 
 
 V. State (3 Ind. 452) 825, 866, 918 
 
 V. State (8 Tex. App. 643) 369 
 
 Hamlin v. Dingman (6 Lans. 61) 298 
 
 Hammar v. Covington (3 Met. (Ky.) 
 
 494) 262, 828 
 
liv 
 
 TABLE OF CASES CITED. 
 
 Bammarskold v. Bull (11 Bich. Law, 
 
 493) 263 
 
 Hammerslough v. Kansas City (57 
 
 Mo. 219) 60S 
 
 Hammett v. Philadelphia (65 Fa. St. 
 
 146) 740, 744, 745, 746, 747, 748, 
 
 759 780 
 
 Hammond v. Haines (25 Md. 541) 63,' 11 3, 
 
 363 
 V. McLachlan (1 Sandf. 323) 632 
 Hampsliire v. Franklin (16 Mass. 76) 
 
 91, 214, 216, 217 
 Hamsden v. Rice (24 Conn. 350) 561 
 
 Hamsworth v. Boston (121 Mass. 173) 829 
 Hancock v. Bowman (49 Cal. 413) 814 
 V. Chicot Co. (32 Ark. 575) 548 
 
 V. Hazzard (12 Cash. 112) 260 
 
 Hancock County v. Clark (27 111. 305) 191 
 Hand v. Brookline (126 Mass. 324) 987 
 Hanger i>. Des Moines (9 C. L. J. 478) 165 
 Hanlon v. Keokuk (7 Iowa, 477) 1051 
 Hanna v. Allen Co. (8 Blackf. (Ind.) 
 
 352) 729 
 
 Hannewinkle v. Georgetown ( 15 WaB. 
 
 548) 605, 896, 919 
 
 Hannibal t>. Draper (15 Mo. 634) 626, 638, 
 
 645, 661 
 ». Railroad Co. (49 Mo. 480) 678, 703 
 V. Winchell (54 Mo. 172) 138, 678, 
 
 703 
 
 Hannon v. St. Louis (62 Mo. 313) 33, 964, 
 
 968, 978, 993 
 
 Hanover v. Eaton (3 N. H. 38) 449 
 
 Hanson v. Eastman (21 Minn. 509) 631, 
 
 639 
 
 «. Vernon (27 Iowa, 28) 78, 180, 183, 
 
 189, 491, 595, 728, 730, 731 
 
 Harbaugh v. Monmouth (74 111. 371) 363 
 
 Harbeck v. Toledo (11 Ohio St. 219) 596, 
 
 597, 598, 599 
 
 Harbor Master v. Southerland (47 
 
 Ala. 511) 133 
 
 Hardcastle b. Railroad Co. (32 Md. 
 
 32) 820 
 
 V. South Yorkshire Railway, etc. 
 
 (4 H. & N. 67) 1059, 1061 
 
 V. State (3 Dutch. 352) 286 
 
 Harding v. Hale (61 111. 192) 634, 637 
 V. Rockford, etc. Railroad Co. (66 
 
 ni. 90) 191, 192, 225, 482, 549 
 
 V. Vandewater (40 Cal. 77) 300 
 
 Hardy v. Keene (52 N. H. 370) 1014, 1017, 
 
 1021, 1032 
 
 V. Waltham (3 Met. 163) 41, 171 
 
 Harker v. Mayor (17 Wend. 199) 408 
 
 Harkins ». Sencerbox (2 Minn. 344) 869 
 
 Harlem, etc. v. Mayor of New York 
 
 (33 N. Y. 309) 463. 466, 906 
 Harlow v. Humiston (6 Cow. 189) 1059, 
 
 1061 
 Harman v. Tappenden (1 East, 555) 278 
 V. Tappenden (3 Espin. 278) 278 
 Harmon v. Brotherson (1 Denio, 537) 265 
 Harness v. Canal Co. (1 Md. Ch. 248) 606 
 Harney v. Ind. (32 Ind. 244) 910, 911 
 
 Harpending v. Haight (39 Cal. 189) 827 
 
 Harper v. Elberton (23 Ga. 566) 781 
 
 V. Milwaukee (30 Wis. 365) 378, 992, 
 
 1015, 1026, 1040, 1056, 1071, 1074 
 
 Harpswell v. Fhippsburgh (29 Me. 
 
 313) 262 
 
 Harrington v. Railroad Co. (17 Minn. 
 
 215) 697 
 
 ». Co. Commrs. (22 Pick. 263) 601 
 V. Miles (11 Kan. 80) 358 
 
 V. School District (30 Vt 155) 262, 
 
 473 
 
 Harris in re (52 Ala. 87) 819, 821, 833 
 
 »»Atlanta(62Ga. 290) 980 
 
 V. Baker (4 M. & S. 27) 264 
 
 p. Elliott (10 Pet. 25) 650,666 
 
 V. Intendant (28 Ala. 577) 118, 363 
 
 V. Nesbit (24 Ala. 398) 143, 888 
 
 V. People (59 N. Y, 599) 71 
 
 V. School District (28 N. H. 58) 31, 
 
 307,460 
 
 V. Wakeman (Say. 225) 411 
 
 V. Watson (Peake, 72) 166 
 
 V. Whitcomb (4 Gray, 433) 312 
 
 Harrisburg v. Saylor (87 Pa. St. 216) 1056 
 
 Harrison ». Baltimore (1 Gill, 264) 121, 
 
 172 173 983 
 
 V. Bridgeton (16 Mass. 16) ' 106^ 216 
 
 ». Brook (20 Geo. 537) 879 
 
 V. Collins (86 Pa. 153) 1056, 1057 
 
 V. Emmerson (2 Leigh (Va.), 
 
 164) 819 
 
 V. Godman (1 Burr. 12) 362 
 
 V. Good (L. R. 11 Eq. Cas. 338) 376 
 V. Parker (6 East, 154) 632 
 
 V. State (9 Mo. 526) 142, 143 
 
 V. Vieksburg (11 Miss. 581) 731, 735 
 V. Williams (3 B. & C. 162) 28, 315 
 Harrold v. Simcoe Co. (16 U. C. C. 
 
 P. 43) 1011,1033,1053 
 
 „. Simcoe Co. (18 U. C. C. P. 9) 1033, 
 
 1053 
 Harshman v. Bates Co. (92 U. S. 569) 493, 
 
 533, 636 
 ». Bates Co. (3 Dillon, C. C. R. 
 
 150) 493 ,529, 534, 536 
 
 Hart V. Brooklyn (36 Barb. 226) 679, 
 
 1024, 1048, 1052 
 
 ». Burnett (15 Cal. 580) 647,649 
 
 V. Gaven (12 Cal. 476) 751 
 
 17. Mayor (9 Wend. 571) 136, 139, 345, 
 
 348, 352, 382, 992 
 
 V. Stone (30 Conn. 94) 576 
 
 V. Township (15 Ind. 226) 638 
 
 Hartford v. West Middle Dist (45 
 
 Conn. 462) 776 
 
 Hartford Bridge Co. i'. East Hartford 
 
 (16 Conn. 149) 143, 214, 215,216 
 V. East Hartford (10 How. 511) 215, 
 
 216 
 V. Ferry Co. (29 Conn. 210) 142 
 
 Hartlepool Collieries Co. v. Gibb (L. 
 
 R. 5 Ch. Div. 713) 723 
 
 Hartley in re (31 L. J. M. C. 232) 392 
 Hartahom e. PotiorfE (89 III. 509) 687 
 
TABLE OF CASES CITED. 
 
 Iv 
 
 Hartwell v. Littleton (13 Pick. 229) 308 
 Harvard College v. Boston (104 Mass. 
 
 470) 116, 615, 747, 778 
 
 Harvey v. Olney (42 111. 336) 941, 942 
 
 V. Rochester (35 Barb. 177) 970 
 
 Harvy v. Derraody (18 Ark. 252) 380 
 
 «. W. P. S. Co. (1 Doug. (Mich.) 
 
 193) 481 
 
 Har\yard v. Levee Co. (51 111. 130) 918 
 
 Harwood v. Lowell (4 Cush. 310) 1015, 
 
 1042 
 V. Marshall (9 Md. 83) 834, 872 
 
 V. Marshall (10 Md. 451) 861, 868 
 Hasbrouck v. Milwaukee (21 Wis. 
 
 217) 102, 446, 463, 465 
 
 V. Milwaukee (25 Wis. 122) 838 
 
 Hascard v. Somany (Freem. 504) 576 
 
 Hasdell v. Hancock (3 Gray, 526) 174, 288 
 
 Haskell v. Burlington (30 Iowa, 232) 812 
 
 V. New Bedford (108 Mass. 208) 138, 
 
 381, 994, 1076 
 
 V. New Gloucester (70 Me. 305) 1018, 
 
 1050 
 
 V. Penn Yan (5 L. (Sup. Ct.) N. 
 
 y. 43) 1038, 1061 
 
 Hassen r. Rochester (65 N. Y. 516) 774 
 
 Hastings's Case (1 Mod. 24) 233 
 
 Hastings v. Thome (8 Neb. 160) 937 
 
 Hatch V. Barr (1 Oliio, 390) 446 
 
 „. BuEEalo (38 N. Y. 276) 605, 919 
 
 V. Mann (15 Wend. 44) 257 
 
 Hathaway v. Cincinnatus (62 N. Y. 
 
 434) 937 
 
 Havemeyer v. Iowa Co. (3 Wall. 294) 200, 
 
 501, 503 
 Haveyreyer v. Supervisors (22 Wis. 
 
 396) 866 
 
 Haven v. Asylum (13 N. H. 532) 318 
 
 V. Railroad Co. (38 Conn. 422) 921 
 Hawk V. Marion Co. (48 Iowa, 472) 165 
 Hawkes v. Kennebec (7 Mass. 461) 838 
 Hawkins v. Commrs. (14 Ind. 521) 819, 
 
 824, 
 
 V. Governor (1 Pike (Ark.), 570) 827 
 
 V. Huron, etc. (2 U. C. C. P. 72) 205 
 
 V. Rochester (1 Wend. 54) 601 
 
 Hawks V. Charlemont (107 Mass. 414) 974 
 
 Hawley v. Baltimore (33 Md. 270) 638 
 
 V. Harrall (19 Conn. 142) 587, 679 
 
 Hawthorne v. Hoboken (32 N. J. L. 
 
 172) 109 
 
 V. St. Louis (11 Mo. 50) 130 
 
 Hay V. Cohoes Co. (2 N. Y. 159) 1058, 1071 
 
 V. Davidson (13 Minn. 523) 1058 
 
 Hayden v. Attleborough (7 Gray, 338) 641, 
 
 1018, 1024, 1034 
 
 V. Madison (7 Greenl. (Me.) 79) 462 
 
 V. Noyes (5 Conn. 391) 209, 288, 337 
 
 V. Turnpike Co. (10 Mass. 397) 262 
 
 Hayes v. Appleton (24 Wis. 544) 117, 336 
 
 V. New York (74 N. Y. 264) 1050, 
 
 V. Oshkosh (33 Wis. 314) 982, 987 
 
 1052 
 
 V. Washington Co. (19 111. 66) 225 
 
 Hayfordw. Belfast (69 Me. 63) 941 
 
 Haygood v. Justices (20 Ga. 845) 963 
 Haynes v. Burlington (38 Vt. 850) 1086 
 w. Covington (21 Miss. 408) 261,441 
 V. Municipality (6 La. An. 760) 79 
 «. Thomas (7 lud. 38) 630, 658, 660, 
 665, 705 
 V. Pacific Steamship Co. (17 How. 
 
 (U.S.) 698) 784,785 
 
 «. State (8 Ind. 425) 625 
 
 Hayward v. Davidson (41 Ind. 212) 4^9, 
 
 559 
 V. School Dist. (2 Cush. 419) 286, 
 
 462 
 Haywood v. Mayor of Savannah (12 
 
 Ga. 404) 113, 330, 332 
 
 Hayzlett v. Mt. Vernon (83 Iowa, 229) 775 
 Hazard's Case (2 Roll. 11) 249, 275 
 
 Hazen v. Essex County (12 Cush. 477) 595 
 V. Strong (2 Vt. 427) 373 
 
 Hazlehurst, etc. v. Freeman, etc. (52 
 
 Ga. 245) 702 
 
 Heacock v. Sherman (14 Wend. 58) 720 
 Head v. Insurance Co. (2 Cranch, 127) 117, 
 
 443, 483 
 Healey v. Batley (L. R. 19 Eq. 375) 627, 
 
 1082 
 Health Dept. v. Knoll (70 N. Y. 530) 373 
 Heard v. Brooklyn (60 N. Y. 242) 583, 699 
 Hearne v. Gorton (2 E. & E. 66) 428 
 
 Heath in re (3 Hill, 42) 226, 229, 431, 832, 
 
 835, 881 
 V. Barmore (50 N. Y. 302) 583, 699 
 V. State (36 Ala. 273) 884 
 
 Hebel v. Amazon Ins. Co. (33 Mich. 
 
 407) 130 
 
 Hebert v. Le Valle (27 111. 448) 649 
 
 Hebrew Society in re (70 N. Y. 476) 777 
 Heckel v. Sandford (40 N. J. L. 180) 203 
 Heckerman v. Hummel (19 Pa. St.) 
 
 64) 655, 656, 658 
 
 Hedges v. Madison Co. (6 111. 567) 720, 
 
 958, 962, 963, 1009 
 
 Heeney v. Heeney (2 Denio, 625) 135, 136 
 
 V. Sprague (11 R. I. 456) 127, 32.3, 
 
 950, 1021, 1029 
 
 Heffner v. Commonwealth (28 Pa. St. 
 
 108) 857 
 
 Heidelberg School Dist. v. Horst (62 
 
 Pa. St. 301) 447 
 
 Heine o. Levee Commrs. (19 Wall. 
 
 655) 202,762,814,818,8.38,842, 
 846, 852, 876 
 Heirs of Reynolds v. Commrs., etc. (5 
 
 Ohio, 204) 557, 562, 583, 642, 645 
 Heise v. Town Council (6 Rich. Law, 
 
 404) 345, 348, 349, 851 
 
 Heisembrittle v. Charlestown (2 Mc- 
 
 MuU. 233) 329, 332, 364 
 
 Heland v. Lowell (3 Allen, 407) 323, 354, 
 
 1041 
 Helen v. Noe (3 Ired. 493) 352 
 
 Helena v. Thompson (29 Ark. 569) 967, 
 
 968, 986 
 
 Heller v. Sedalia (53 Mo. 159) 982 
 
 V. Stremmel (52 Mo. 809) 27, 38 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 HemphiU v. Boston (8 Cush. 195) 640, 641 
 Hempstearl v. Des Moines (3 North 
 
 W. Rep. 123) 1004 
 
 Henback v. State (53 Ala. 523) 830 
 
 Henchman v. Kailroad Co. (17 N. J. 
 
 Eq. 75) 659 
 
 Hendee v. Pmkerton (14 Allen, 381) 218 
 Hendershott v. Ottumwa (46 Iowa, 
 
 658) 1001 
 
 Henderson v. Baltimore (8 Md. 352) 763, 
 
 7G7 795 797 
 
 V. Barnes (32 U. C. Q. B. 176) 1021 
 
 V. Covington (14 Bush, 312) 118 
 
 I). Lambert (8 Bush, 607) 790 
 
 o. Lambert (14 Bush, 24) 807 
 
 V. Mayor (3 La. 563) 236 
 
 V. Railway Co. (25 L. T. N. S. 
 
 881) 1004 
 
 Hendrick v. West Springfield (107 
 
 Mass. 541) 476 
 
 Henly v. Mayor, etc. of Lyme (2 CI. 
 
 & F. 331) 987, 990, 1036 
 
 Hennen in re (13 Pet. 230) 259, 273 
 
 Henry v. Atkinson (50 Mo. 266) 576 
 
 1). Chester (15 Vt 460) 763 
 
 t>. Pittsburg Bridge Co. (8 Watts 
 
 &S. (Pa.)85) 696,998 
 
 V. Railroad Co. (10 Iowa, 540) 606 
 
 Hensalt f. Petersburg (63 Bl. Ill) 409 
 
 Henshaw v. Hunting (1 Gray, 203) 633, 
 
 671 
 Hentz V. Long Is. R. R. Co. (13 Barb. 
 
 646) 654, 706 
 
 Hepburn v. Griswold (8 Wall. 603) 156 
 Herbert v. Benson (2 La. An. 770) 655, 
 
 656, 660 
 Herman v. Crete (9 Neb. 350) 937 
 
 Hersey v. Supervisors (16 Wis. 185) 774 
 Herzo v. San Francisco (83 Cal. 134) 836, 
 454, 574, 938 
 Hesketh v. Brad (3 Burr. 1847) 405, 411, 
 
 416, 423 
 Heslep V. Sacramento (2 Cal. 580) 257 
 Hess V. Pegg (7 Nev. 23) 485 
 
 Hester's Case (2 Watts & S. 416) 840 
 Hewes v. Reis (40 Cal. 255) 767, 800, 806 
 Hewett V. School Dist. (94 Bl. 528) 482 
 Hewison v. New Haren (39 Conn. 475) 980, 
 
 1015 
 ». New Haven (34 Conn. 136) 1088, 
 
 10.34 
 
 Hey V. PhUadelphia (81 Pa. 44) 1018, 
 
 1019, 1035, 1037 
 
 Heyneman v. Blake (19 Cal. 579) 597, 614 
 
 Heyward v. Mayor, etc. (7 N. Y. 314) 559, 
 
 562 583 
 Heywood v. Buffalo (14 N. Y. 534) '895, 
 896, 907, 919, 920, 925 
 Hibbard v. People (4 Mich. 126) 380 
 
 Hiblett V. Nashville (12 Heisk. 684) 378 
 Hickerson v. Mexico (58 Mo. 61) 636, 973 
 Hickman o. O'Neal (10 Cal. 294) 418 
 
 Hickok V. Plattsburg (15 Barb. 427) 128 
 V. Plattsburg (16 N. Y. 161) 986, 1047 
 Hickox V. Cleveland (8 Ohio, 543) 1002 
 
 Hicks V. Dom (42 N. Y. 47) 995 
 
 V. Launeelot (1 Rol. Abr. 513) 247 
 Hiestand v. New Orleans (14 La. An. 
 
 330) 256 
 
 Higbee v. Raiboad Co. (20 N. J. Eq. 
 
 435) 659 
 
 Higert v. Greencastle (43 Ind. 574) 1029, 
 
 1030, 1037, 1040, 1047, 1051 
 
 Higgins V. Chicago (18 III. 276) 600, 601, 
 
 602. 603, 608, 814 
 
 V. Livingston (4 Dow, 841) 264 
 
 V. Princeton (4 Halst. Ch. 309) 387 
 
 HigginsoD v. Nahant (11 Allen, 580) 593, 
 
 . 594, 1015 
 
 High". Shoemaker (22 Cal. 363) 762 
 
 Highland Turnpike o. McKean (10 
 
 Johns. 154) 110 
 
 Hight V. Board, etc. of Monroe Co. 
 
 (68 Ind. 576) 469, 473 
 
 Hightomer v. Staton (54 Ga. 108) 130 
 Higley v. Bunce (10 Conn. 435, 567) 341 
 HUbish V. Catherman (64 Pa. St. 154) 178, 
 
 179, 728 
 HUdreth v. Lowell (11 Gray, 345) 591, 
 801, 804, 974, 975, 994 
 Hildreth's Heirs f. Mclntire's De- 
 visees (IJ. J. Marsh. 206) 293 
 HiU V. Boston (122 Mass. 344) 16, 34, 35, 
 36, 38, 39, 88, 171, 838, 960, 961, 
 965, 966, 967, 974, 979, 983, 988, 
 992, 994, 1009, 1013, 1014, 1015, 
 1033, 1044, 1047 
 V. Charlotte (72 N. C. 55) 949 
 
 V. Decatur (22 Ga. 203) 71, 322, 363 
 V. Forsythe County (67 N. C. 367) 180 
 .,. Higdon (5 Ohio St. 243) 70, 738, 
 .739, 748, 777 
 V. Livingston (12 N. Y. 52) 719, 720 
 V. Oneida Co. (19 Johns. 259) 829 
 V. RaQroad Co. (11 Wis. 214) 788 
 V. State (4 Sneed (Tenn.), 443) 930, 
 
 931 
 
 HiUiard v. Richardson (8 Gray, 349) 980, 
 
 1055, 1056, 1057 
 
 Hilsdorf v. St. Louis (45 Mo. 94) 979 
 
 Himmelmann b. Byrne (41 Cal. 500) 806 
 
 V. Cofran (36 Cal. 411) 806, 808, 824 
 
 V. Danes (35 Cal. 441) 767 
 
 V. Hoadley (44 Cal. 213) 682 
 
 V. OUver (84 Cal. 246) 767, 800 
 
 V. Spanagel (89 Cal. 389) 806, 814 
 
 Hinchman v. Detroit (9 Mich. 103) 665 
 
 .,. Horse R. R. Co. (17 N. J. Eq. 
 
 75) 697, 701,705, 709,711,714,715 
 
 Hincks v. Milwaukee (46 Wis. 559) 1055 
 
 Hinde v. Navigation Co. (15 Bl. 73) 979 
 
 Hinds V. Hinds (1 Iowa, 36) 223 
 
 Hine o. K. & D. M. B. Co. (42 Iowa, 
 
 636) 696 
 
 V. New Haven (40 Conn. 478) 401 
 
 Hines v. Leavenworth (8 Kan. 186) 753, 
 
 808 
 ». Lockport (50 N. Y. 236; 41 
 How. Pr. Rep. 435) 794, 1038, 
 1077 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 Hinea v. Lockport (5 Lans. 17) 1038 
 
 Hinson v. Lott (8 Wall. 151) 734 
 
 Hinton v. Lindsay (20 Ga. 746) 247 
 
 Hitchcock i\ Galveston (96 U. S. 341) 125, 
 156, 159, 443, 452, 778, 779, 798, 
 803 
 Hite V. Goodman (1 Dev. & Bat Eq. 
 
 364) 264 
 
 Hixon V. Lowell (13 Gray, 59) 1014, 1015, 
 
 1016, 1017, 1031, 1032, 1033, 1034 
 
 Hoag V. Durfey (1 Aiken, 286) 308 
 
 II. Lamont (SO N. Y. 96) 431 
 
 Hoagland o. Sacramento (52 Cal. 142) 102 
 
 Hobart w. Detroit (17 Miclv. 24B) 465 
 
 V. Detroit (7 Mich. 246) 906 
 
 U.Milwaukee (27. Wis. 194) 711,714 
 
 V. Supervisors (17 Cal. 23) 62 
 
 HobbsD. Lowell (19 Pick. 415) 640 
 
 Hoblyn v. Eegem (6 Bro. P. C. 520) 291 
 
 Hoboken w. Gear (3 Dutch. 265) 255, 258, 
 
 269, 273, 341, 342 
 
 Hoboken Land Co. v. Hoboken (36 
 
 N,J. L. 540) 661,665 
 
 v. Harrison (30 N. J. L. 73) 233, 243 
 
 Hodgden v. Dextef (1 Cranch, 145) 263 
 
 Hodges V. Buffalo (2 Denio, 110) 117, 166, 
 
 176, 441, 442, 451, 454, 460, 461, 
 
 463, 486, 910 
 
 V. Mayor (2 Humph. 61) 360 
 
 V. Schuler (22 N. Y. 114) 483 
 
 Hodgman w. Chicago K. W. Co. (20 
 
 Minn. 48) 915 
 
 Hoffman v. Jersey City (34 N. J. L. 
 
 172) . 234, 340 
 
 c. San Joaquin Co. (21 Cal. 426) 958 
 
 w. St. Louis < 15 Mo. 651) 682,1000 
 
 V. Van Nostrand (42 Barb. 174) 203 
 
 Hogdon V. Lincoln (68 Me. 226) 924 
 
 Hogg V. Ward (8 H. & N. 417) 238 
 
 Hohl V. Westford (33 Wis. 324) 822 
 
 Hoke V. Henderson (4 Dev. 1) 253, 258 
 
 Holherg v. Macon (55 Miss. 112) 740, 924 
 
 Holbrook V. Dickenson (46 111. 285) 813 
 
 Holdane v. Cold Spring (21 N. Y. 
 
 474) 630, 631 
 
 Holdsworth v. Dartmouth (11 A. & 
 
 E. 490) 219 
 
 HoU V. Manchester (40 N. H. 410) 1017 
 Holladay «. March (3 Wend. 142) 3B5 
 Holland ti. Baltimore (U Md. 186) 114, 
 121, 795, 797, 798, 920 
 V. San Francisco (7 Cal. 361) 106 
 Holland's Case (11 Md. 186) 900, 916 
 
 Holliday v. Frisbie (15 Cal. 631) 559, 570, 
 
 571, 572 
 V. People (10 111. 216) 76, 80 
 
 Hollings worth v. Detroit (3 McLean, 
 
 472) 487 
 
 HolUster v. Union Co. (9 Conn. 436) 1000 
 
 Holman in re (28 Iowa, 88) 842, 851 
 
 V. Townsend (13 Met. 297) 1022 
 
 Holmes v. Finklenburg (54 111. 203) 417 
 
 V. Jersey City (1 Beasl. (N. J.) 
 
 299) 610,640, 896,898,924,926 
 V. Wilson (10 A. & E. 503) 377 
 
 Holroyd v. Pumphrey (18 How. (U. 
 
 S.) 69) 813 
 
 Home V. Earl Camden (2 H. Bl. 533) 929 
 V. Rouse (8 Wall. 430) 126 
 
 Home Ins. Co. w. City Council (93 U. 
 
 S. 116) 85 
 
 Homersham v. Wol. etc. Co. (4 Eng. 
 
 Law & Eq. 426) 443 
 
 Hood 0. Lynn (1 Allen, 103) 120, 176 
 Hooker v. New Haven Co. (14 Conn. 
 
 146) 683, 1000 
 
 Hooksett V. Amoskeag, etc. Co. (44 
 
 N. H. 105) 679, 721 
 
 Hoole V. Attorney-General (22 Ala. 
 
 190) 383, 633, 636 
 
 Hooper v. Bridge water (102 Mass. 
 
 612) 927 
 
 e. Ely (46 Mo. 505) 909 
 
 u. Emery (14 Me. 375) 41 
 
 Hope 0. Deaderick (8 Humph.(Tenn.) 1) 
 
 731 
 
 Hopkins v. Mason (61 Barb. 469) 802 
 
 V. Mayor (4 M. & W. 621) 323 
 
 V. Mehafly (11 S. & R. 126) 446 
 
 V. Whitesides (1 Head, 31) 200 
 
 Hopkinson v. Marquis of Exeter (L. 
 
 R. 5 Eq. 63) 266 
 
 Hopkinton v. Springfield (12 N. H. 
 
 328) 262 
 
 Horn V. Baltimore (30 Md. 218) 441, 442, 
 
 973 
 
 V. Whittier (6 N. H. 88) 243 
 
 HorabeckK. Westbrook (9 Johns. 73) 556, 
 
 568 
 Hornblower v. Dunden (35 Cal. 644) 472 
 Horner v. Coffey (25 Miss. 434) 572, 841 
 Homey v. Sloan (1 Smith, 136) 354 
 
 Hornstein v. Railroad (51 Pa. St. 87) 621, 
 
 1008 
 Horse Railroad Co. v. Deitz (50 111. 
 
 210) 713 
 
 Horst V. Moses (48 Ala. 129) 691 
 
 Horton v. Grand Haven (24 Mich. 
 
 465) 615 
 
 V. Ipswich (12 Cush. 488) 1020, 1022, 
 1040, 1051 
 V. Mobile School Comm'rs (43 
 
 Ala. 598) 69 
 
 V. Taunton (97 Mass. 266) 1028 
 
 V. Thompson (71 N. T. 613) 180, 461, 
 
 552, 823 
 
 Hospital V. Higgins (15 111. 185) 840 
 
 Hotchin v. Kent (8 Mich. 526) 462 
 
 Hotchkiss V. Nat. Bank (21 Wall. 
 
 354) 499 
 
 Houck V. Whitney (14 Grant, 671) 459 
 
 Houfe V. Fulton (34 Wis. 60) 720 
 
 V. Fulton (29 Wis. 296) 661, 1018, 
 
 1035 
 V. Fulton (31 Wis. 608) 1026 
 
 Houghton's Case (Sir R. T. Boyd, 
 
 215) 377 
 
 Houghton V. Davenport (23 Pick. 235) 286 
 Hounsel v. Smyth (7 Com. B. (N. S.) 
 
 729) 1061 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 House V. County Comm'rs (60 Ind. 
 
 580) • 962 
 
 u. Montgomery Co. (60 Ind. 580) 962, 
 
 1011, 1030 
 
 House of Lords Cases, 312 903 
 
 Houston V. Clay County (18 Ind. 396) 264 
 
 Hovey v. Mayo (43 Me. 322) 121, 122, 
 
 683, 685, 687 
 
 V. Mayor (43 Me. 322) 683, 1000, 1005 
 
 Howard v. Bridgewater (16 Pick. 
 
 (Mass.) 189) 931, 1022, 1024, 
 1025, 1084 
 t.-. Church (18 Md. 451) 454, 610, 748 
 V. Drainage Co. (51 111. 130) 96, 736 
 V. Gage (6 Mass. 462) 835, 892 
 
 V. Providence (6 R. I. 514) 619 
 
 V. Rodgers (4 Har. & Johns. 278) 638 
 V. San Francisco (51 Cal. 62) 982 
 V. Savannah (T. Charlt. R. 173) 332 
 V. Shields (16 Ohio St. 184) 226 
 
 V. Shoemaker (35 Ind. Ill) 235, 2-36, 
 
 419 
 
 Howard's Case (Hutton, 87) 194 
 
 Howe in re (1 Paige, 214) 568 
 
 V. Boston (7 Cush. 273) 941 
 
 V. Crawford Co. (47 Pa. St. 361) 828 
 
 V. Freeman (14 Gray, 566) 788 
 
 V. Keeler (27 Conn. 538) 460 
 
 V. Lowell (101 Mass. 99) 1048, 1052 
 
 «. Mayor (12 La. An. 481) 89 
 
 V. New Orleans (12 La. An. 481) 957 
 
 1032, 1059, 1061 
 
 V. Norris (12 Allen, 82) 392 
 
 o. Plainfield (41 N. H. 135) 1017, 
 
 1052 
 
 V. Plainfield (37 N. J. L. 145) 63, 368, 
 
 419, 424 
 
 Howell V. Bristol (8 Bush, 493) 743, 747 
 
 V. Buffalo (37 N. Y. 267) 744, 8U8, 809 
 
 V. Buffalo (15 N. Y. 512) 763, 937, 940, 
 
 970, 973, 976, 977 
 
 V. Peoria (90 111. 104) 912 
 
 V. Philadelphia (38 Pa. St. 471) 814 
 
 V. State (3 Gill, 14) 785 
 
 Howerton w. Tate (66 N. C. 231) 833 
 
 Howes V. Racine (21 Wis. 514) 910, 920 
 
 Howland i-. Luce (16 Johns. 135) 252 
 
 V. Vincent (10 Met. (Mass.) 871) 1061 
 
 Hoxie V. Commrs. (25 Me. 333) 854 
 
 Hoyle y. Railroad Co. (54 N. Y. 314) 788 
 
 V. Railroad Co. (23 La. An. 535) 699 
 
 Hoyt m re (13 Pet. 279) 819 
 
 V. Commrs. of Taxes (23 N. Y. 
 
 228) 783, 784 
 
 V. East Saginaw (19 Mich. 39) 3-30, 
 
 743, 746, 749, 750, 805 
 
 V. Hudson (27 Wis. 656) 1065, 1068, 
 
 1070, 1071 
 
 V. Thomson (19 N. Y. 207) 460 
 
 Hubbard v. Concord (35 N. H. 52) 1017, 
 
 1021, 1025, 1027, 1029, 1048, 1052 
 
 V. Fayette (70 Me. 121) 1041 
 
 V. Lyndon (28 Wis. 674) 481 
 
 V. Winsor (15 Mich. 146) 288 
 
 HubbeU V. Waterloo ( Wis. Cir. C.) 862 
 
 Huber v. Gazly (18 Ohio, 18) 638, 642, 659 
 Hubert v. People (49 N. Y. 132) 71 
 
 Huddleson v. Ruffln (6 Ohio St. 604) 840, 
 
 353 
 
 Hudson V. Geary (4 R. I. 485) 397, 398 
 
 V. Hoboken (41 N. J. L. 71) 358 
 
 V. Thome (7 Paige, 261) 838 
 
 Hudson Co. u. Seymour (35 N. J. L. 
 
 47) 83, 88 
 
 V. State (24 N. J. L. 718) 62, 300, 301, 
 302, 801 
 Hudson, etc. Co. v. Patterson (74 N. 
 
 Y. 365) 785 
 
 HufF ti, Knapp (5 N. Y. 65) 850 
 
 Huffman v. Greenwood Co. (23 Kan. 
 
 281) 257 
 
 V. San Joaquin Co. (21 Cal. 426) 720, 
 
 1009 
 
 Hugg V. Camden (29 N. J. Eq. 6) 472 
 
 V. Camden (39 N. J. L. 620) 824, 869 
 
 Hughes V. Cairo (92 111. 339) 736 
 
 V. Kline (30 Pa. St. 227) 919 
 
 V. Parker (20 N. H. 68) 233, 291 
 
 0. Railroad Co. (2 R. L 493) 653, 703 
 
 Huidekoper v. Dallas Co. (3 Dillon, 
 
 C. C. R. 171) 536 
 
 Hull V. County (12 Iowa, 142) 482 
 
 V. Kansas City (54 Mo. 601) 1035 
 
 V. Richmond (2 W. & M. 337) 1034 
 
 V. Supervisors (19 Johns. 269) 825 
 
 HuUin V. Municipality (11 Rob. (La.) 
 
 97) 601, 602 
 
 HuUman v. Honeomp (5 Ohio, 237) 291, 
 
 833 
 
 Humbolt V. Long (92 U. S. 642) 498, 499, 
 
 610, 614, 518 
 
 B. McCoy (23 Kan. 249) 68 
 
 Hume V. New York (47 N. Y. 639) 1048, 
 
 1049, 1060 
 
 V. New York (74 N. Y. 264) 1030, 1032 
 
 Humes o. Mayor, etc. (1 Humph. 
 
 (Tenn.) 403) 683, 1000 
 
 Hummell v. Brown (24 Pa. St. 311) 488 
 Hummer v. Hummer (3 Greene 
 
 (Iowa), 42) 229, 432, 881 
 
 Humphreys m re (10 Wend. 612) 299 
 
 0. County (56 Pa. St. 204) 719, 1040, 
 
 1050 
 
 V. Mears (1 M. & R. 187) 264 
 
 Huneman v. Fire District (37 Vt. 40) 171 
 
 Hunnewell v. Boston (106 Mass. 850) 922 
 
 Hunnewinkle v. Georgetown (15 
 
 Wall. 547) 907 
 
 Hunt V. Ambruster (17 N. J. Eq. 
 
 208) 178 
 
 V. Boonville (65 Mo. 620) 778, 978, 
 
 974, 975, 976, 1000, 1041 
 
 V. Philadelphia (35 Pa. St. 277) 361 
 
 V. Pownal (9 Vt. 418) 1022, 1023, 1035 
 
 V. Rousmaniere (1 Pet 16) 946 
 
 B. School District (14 Vt. 300) 286, 
 
 287, 288 
 
 V. Utica (18 N. Y. 442) 475, 598 
 
 Hunter v. Chandler (46 Mo. 462) 269, 892, 
 
 893 
 
TABLE OF CASES CITED. 
 
 lix 
 
 Hunter w. Chandler (10 Am. L. R. 440) 259 
 
 V. Field f20 Ohio, 340) 261 
 
 V. Middleton (13 111. 50) 6B4 
 
 V. Newport (5 li. I. 325) 596 
 
 V. Trustees of Sandy Hill (6 Hill 
 
 (N. Y.), 407) 625, 626, 629, 636, 
 
 645, 663 
 
 V. "Winsor (24 Vt. 327) 985 
 
 Huntley v. Comrars. (67 III. 559) 755 
 
 V. Luscombe (2 B. & P. 530) 428 
 
 Ilurber v. Brangle (43 Iowa, 514) 350 
 
 Hurford v. Omi#a (4 Neb. 336) 116, 127, 
 
 443, 731, 753, 767, 778, 1006 
 
 Hurlburt y. Litchfield (1 Root (Conn.), 
 
 520) 985 
 
 Huron V. London (4 IT. C. Q. B. 302) 934 
 
 Hussen v. Rochester (65 N. Y. 516) 610 
 
 Ilutchings V. Scott (4 Halst. 218) 418, 430 
 
 Ilutchins V. Littleton (124 Mass. 289) 1053 
 
 Hutchinson v. Pratt (U Vt. 402) 307, 308, 
 
 313, 643, 644 
 
 Hutson ». Mayor, etc. (9 N. Y. 163) 1030, 
 
 1037, 1047, 1049 
 
 Hutton V. Camden (39 N. J. L. 122) 373 
 
 V. Windsor (34 U. C. Q. B. 487) 1024, 
 
 1034, 1051 
 
 Iluvison V. New Haven (36 Conn. 
 
 136) 1032 
 
 Hyde in re {15 Hun (N. Y.), 477) 808 
 
 V. Franklin (28 Vt. 185) 480, 481 
 
 V. Jamaica (27 Vt. 442) 640, 1015, 
 
 1040 
 Hyde Park v. Borden (94 111. 26) 666, 764, 
 
 921 
 
 V. Ingalls (87 111. 11) 922 
 
 Hydes v. Joyes (4 Bush, 464) 123, 779 
 
 Ilymes v. Aydelott (26 Ind. 481) 614 
 
 Illinois Central Railroad Co. v. Bloom- 
 
 ington (76 111. 447) 714 
 
 Illinois Insurance Co. v. Littlefleld 
 
 (67 111. 368) 632, 634, 635, 636, 
 640 
 Illinois, etc. Co. v. St. Louis (2 Dill. 
 
 Rep. 70) 125, 133, 134, 138 
 
 Imlay v. Railroad Co. (26 Conn. 249) 714 
 
 Imler v. Springfield (55 Mo. 119) 683, 
 
 1000, 1065, 1068, 1071, 1077 
 
 Imperial Land Co. in re (L. R. 11 Eq. 
 
 478) 610 
 
 Inchibald v. Robinson (L. R. 4 Ch. 
 
 App. 888) 378 
 
 Independence v. Moore (32 Mo. 392) 368, 
 
 899 
 
 Indiana v. "Woram (6 Hill, 33) 42 
 
 Indianapolis v. Blythe (2 Ind. 75) 371 
 
 V. Croas (7 Ind. 9) 630, 635, 660, 665, 
 
 675, 676 
 
 V. Imberry (17 Ind. 175) 312, 314, 767 
 
 V. Indianapolis Gas Co. (66 Ind. 
 
 396) 111, 112, 117, 123, 125, 199, 
 
 323, 329, 436, 441, 469, 470, 690, 
 
 691 
 
 V. Indianapolis Home, etc. (50 
 
 Ind. 213) 85 
 
 Indianapolis v. Lawyer (88 Ind. 848) 778, 
 
 1066 
 V. McClure (2 Ind. 147) 720 
 
 V. McLean (8 Ind. 328) 773 
 
 V. Mansur (16 Ind. 112) 749, 799 
 
 i>. Skeen (17Ind. 628) 445 
 
 Indianapolis, etc. Railroad Co. v. 
 
 Hartley (67 111. 439) 653, 697, 
 
 698, 705, 706, 1065 
 
 V. Lawrenceburg (34 Ind. 304) 701 
 
 V. State (37 Ind. 489) 820, 1064 
 
 Indianola v. Jones (29 Iowa, 282) 304 
 
 Industrial School v. Whitehead (2 
 
 Beasl. 290) 113 
 
 Ingham v. Chicago, etc. R. R. (84 
 
 Iowa, 249) 700 
 
 Ingle V. Jones (43 Iowa, 286) 109 
 
 Inglis V. Hughes (61 Ind. 212) 31 
 
 V. Railway Co. (16 E. L. & Eq. 
 
 55) 307, 341 
 
 V. State (61 Ind. 212) 262 
 
 Ingraham in re (64 N. Y. 310) 802 
 
 V. Chicago, D. & M. Railroad Co. 
 
 34 Iowa, 249) 697 
 
 Ingram v. Police Jury (20 La. An. 
 
 226) 670 
 
 Inhabitants v. Cole (3 Pick. 232) 297, 561 
 V. Connecticut River Railroad (4 
 
 Cush. (Mass.) 63) 715 
 
 I/. County Commrs. (7 Cush. 394) 604 
 
 V. Eaton (13 Mass. 371) 561, 570 
 
 V. New Orleans (14 La. An. 452) 122 
 
 V. String (5 Halst. 323) 206 
 
 V. Weir (9 Ind. 224) 156, 451, 480 
 
 V. Wilmot (2 Root, 288) 673 
 
 w. Wood (13 Mass. 193) CI 
 
 Inhabitants of Ipswich (13 Pick. 431) 210 
 
 Inman v. Tripp (11 R.L520) 999, 1067, 1068 
 
 Innes v. Wylie (1 Carr. & K. 257) 275, 277 
 
 Insane Asylum v. Higgins (15 111, 185) 208 
 
 Insurance v. Adams (9 Pet. 571) 819 
 
 Insurance Co. v. Pollok (75 111. 292) 788 
 
 V. Sanders (36 N. H. 252) 300 
 
 ». Sortwell (8 Allen. 217) 302, 305 
 
 V. State (9 Kan. 210) 365 
 
 «. Wheelwright (7 Wheat. 534) 872 
 
 V. Wilson's Heirs (8 Pet. 291) 819, 855 
 
 Intendant v. Chandler (6 Ala. 899) 118, 
 
 365, 604, 731, 923, 924 
 
 V. Pippin (31 Ala. 542) 896 
 
 Iowa R. R., etc. Co. v. Co. of Sac (39 
 
 Iowa. 124) 848 
 
 Iowa City v. Foster (10 Iowa, 189) 255 
 Ipswich Mills V. Commrs. (108 Mass. 
 
 363) 589, 974 
 
 I. P. & C. R. R. Co. V. Ross (47 Ind. 
 
 25) 670 
 
 Irish V. Webster (5 Greenl. 171) 261 
 
 Iron Co. in re (7 Cow. 240) 557 
 
 Iron R. R. Co. v. Ironton (19 Ohio, 
 
 299) 134 
 
 Irvin V. Pevors (65 Mo. 625) 324 
 
 V. Railroad Co. (94 111. 105) 784 
 
 Irvine v. Wood (51 K. Y. 224) 695, 726, 
 
 1059, 1060. 1061 
 
Ix 
 
 TABLE OF CASES CKED. 
 
 Irwin V. Bradford (22 U. C. C. P. 19) 1027 
 
 V. Dixion (9 How. 10) 633, 634, 63B 
 
 ,.. Mariposa (22 U. C. C. P. 367) 175 
 
 V. MobUe (57 Ala. 6) 799 
 
 Isley V. Stubbs (5 Mass. 283) 177 
 
 Isom V. Railroad Co. (36 Miss. 300) 621 
 
 Israel v. Jacksonville (2 111. 290) 408 
 
 V. Jewett (29 Iowa, 475) 621 
 
 Ives V. Hulet (12 Vt. 314) 264 
 
 Ivinson v. Hance (1 Wy. Ter. 270) 147 
 
 Jackson v. Applewhite (62 Ind. 464) 469, 
 
 938 
 V. Bellevieu (30 Wis. 250) 1022 
 
 0. Bowman (39 Miss. 671) 126, 441 
 V. Brush (77 111. 69) 123, 499 
 
 V. Cory (8 Johns. 385) 556, 568 
 
 v. Hartwell (8 Johns. 422) 656, 562, 
 
 568 
 
 V. Hathaway (15 Johns. 447) 632, 
 
 684, 686 
 
 V. Hyde (28 U. C. Q. B. 294) 1021 
 
 V. Le Roy (5 Cow. 397) 657 
 
 i;. Morris (1 Denio, 199) 177 
 
 ». People (9 Mich. Ill) 380, 432,433, 
 
 678, 923, 924, 927 
 
 V. Pike (9 Cow. 61) 561 
 
 V. Pratt (10 Johns. 381) 219 
 
 V. Railroad Co. (48 Me. 147) 479 
 
 V. Vicksburg Co. (2 Woods, 141) 562 
 
 Jackson Co. v. Brush (77 111. 69) 192,909 
 
 V. McClintock (51 Ind. 325) 911 
 
 Jacksonport v. Watson (33 Ark. 704) 181, 
 
 189, 910 
 Jacksonville v. Lambert (62 Ul. 519) 1071, 
 
 1078 
 
 V. Railway Co. (67 Dl. 540) 626, 643, 
 
 646, 647, 648 
 
 Jacob V. Louisville (9 Dana, 114) 621 
 
 Jacobs V. Bangor (16 Me. 187) 1051 
 
 V. Hamilton Co. (4 Plsher, Pat. 
 
 Cases, 81) 31, 968 
 
 Jager v. Doherty (61 Ind. 528) 911 
 
 James v. Milwaukee (16 WaU. 159) 190, 
 
 527 
 V. Portage (5 N. W. R. 31) 1026 
 
 V. Putney (Cro. Car. 498) 411 
 
 V. San Francisco (6 Cal. 528) 1051, 
 
 1054 
 James River Co. v. Anderson (12 
 
 Leigh (Va.), 276) 696 
 
 Jameson «. People (16 111. 257) 110, 111 
 Jamison v. Fopiana (43 Mo. 665) 576 
 
 V. Springfield (63 Mo. 224) 607, 621 
 Janesviile v. Markoe (18 Wis. 350) 114 
 Janey's Executors u. Latane (4 Leigh, 
 
 327) 567 
 
 Jansen v. Atchison (16 Kan. 358) 1021, 
 
 1029, 1037, 1038, 1055, 1063 
 
 V. Ostrander (1 Cow. 670) 261 
 
 January v Johnson Co. (3 Dill. C. C. 
 
 R. 392) 539 
 
 Janvrin v. Exeter (48 N. H. 83) 165 
 
 Jarman v. Patterson (7 B. Mon. 647) 351 
 Jarrett v. Moberly (5 DUl. 253) 536 
 
 Jarvis v. Barnard (30 Vt. 492) 985 
 
 V. Dean (3 Bing. 447) 629 
 
 V. Mayor, etc. (2 N. Y. 396) 259, 278 
 
 V. Shelby (62 Ind. 257) 476 
 
 Jay's Case ( 1 Vent. 302) 267, 279 
 
 JefEerson u. Courtmire (9 Mo. 683) 368, 
 
 398 
 JefEerson City v. Opel (49 Mo. 190) 774 
 JefEerson Co. v. Arrighi (54 Miss. 668) 460, 
 
 485 
 
 V. People (5 Neb. 136) 100 
 
 V. Slagle (66 Pa. St. 202) 298 
 
 JefEersonville v. Ferry Co. (27 Ind. 
 
 ■ %100) 137,141, 
 
 V. Ferry Co. (35 Ind. 19) 133, 137, 141, 
 
 , 455 
 
 V. Patterson (32 Ind. 140) 236, 810, 907 
 
 V. Weems (5 Ind. 547) 213 
 
 Jeffreys v. Garr (2 B. & Ad. 841) 61 
 
 Jeffries v. Ankeney (11 Ohio, 374) 265 
 
 V. Lawrence (42 Iowa, 498) 532, 762 
 
 Jenkins v. Andover (103 Mass. 94) 187, . 
 
 491,737,899* 
 
 V. Cheyenne (1 Wy. Ter. 287) 405 
 
 V. Tliomasville (35 Ga. 145) 425 
 
 V. Waldron (11 Johns. 114) 265 
 
 Jenks V. Chicago (56 111. 397) 778 
 
 V. Chicago (48 111. 296) 800 
 
 .;. Lima Township (17 Ind. 326) 941, 
 
 943 
 
 V. Township (45 Iowa, 554) 131 
 
 V. Wilbraham (11 Gray, 142) 1023 
 
 Jenner v. JoUiffe (9 Johns. 382) 265 
 
 Jenning's Case (12 Mod. 402) 249, 250 
 
 Jennings in re (6 Cow. 518) 857, 869 
 
 V. Tisbury (5 Gray, 73) 640, 641 
 
 V. Verbarg (63 Ind. 107) 469 
 
 Jersey City v. Callahan (4 N. J. L. 
 
 349) 945 
 
 V. Dummer (Spence (N. J.), 106) 633 
 
 V. Fitzpatrick (30 N. J. Eq. 97) 662 
 
 V. Horton (38 N. J. L. 88) 131 
 
 V. Hudson (2 Beasl. Ch. 420) 383 
 
 V. H. R. Co. (20 N. J. Eq. 61) 715 
 
 V. Lembeck (31 N. J. Eq. 255) 8!i6 
 
 V. Morris Canal Co. (1 Beasl. 547) 631, 
 
 633, 669, 671 
 
 V. Quaife (2 Dutch. 63) 254 
 
 V. Railroad Co. (24 N. J. Eq. 360) 75, 
 
 114, 697, 709 
 
 V. Railroad Co. (21 N. J. Eq. 550) 699 
 
 ». Riker (38N. J. L. 225) 941,945 
 
 V. State (30 N. J. L. 521) 303, 640, 
 
 665, 667, 670, 672, 926 
 
 Jewett V. New Haven (38 Conn. 368) 982 
 
 John u. Cincinnati, etc. R. Co. (35 
 
 Ind. 539) 184 
 
 John & Cherrv St. in re (19 Wend. 
 
 6.59) ■ 583, 586, 632, 648 
 
 Johns V. Nicholls (2 Dall. 184) 269 
 
 Johnson v. Allen (62 Ind. 57) 798 
 
 u. Almeda (14 Cal. 106) 608 
 
 V. Americus (46 Ga. 80) 238, 239, 424 
 V. Barclay (1 Harr. 1) 424 
 
 V. Becker (6 N. W. R. 37) 768 
 
TABLE OF CASES CITED. 
 
 Ixi 
 
 Johnson v. Boston (118 Mass. 44) , 1026 
 V. Charleston (3 S. C. 232) 238, 1061 
 V. Commissioners (67 N. C. 101) 871 
 V. Common Council (16Ind. 227) 475 
 V. Drummond (20 Gratt. 419) 788 
 V. Haverhill (35 N. H. 74) 1017, 1034, 
 
 1039 
 V. Hudson River Railroad Co. (6 
 
 Duer, 634) 1043 
 
 V. Indianapolis (16 Ind. 227) 206 
 
 V. Irasburgh (47 Vt. 28) 1041 
 
 V. Irwin (3 S. & R. (Pa.) 291) 667 
 V. Jacqui (27 N. J. Eq. 552) 694 
 
 V. Larapton (40 U. C. Q. B. 297) 226 
 V. Lexington (14 B. Mon. (Ky.) 
 
 648) 788 
 
 V. Milwaukee (40 Wis. 315) 743 
 
 V. Milwaukee (46 Wis. 568) 1026, 
 
 1050, 1052 
 
 V. Municipality (5 La. An. 100) 976, 
 
 981 
 V. Norway (Winch, 37) 198 
 
 V. Oregon City (2 Oreg. 327) 788 
 V. Philadelphia (69 Pa. St. 445) 125, 
 357 359 
 ». Philadelphia (47 Pa. St. 382) ' 161 
 V. Simonton (43 Cal. 342) 172, 323, 
 324, 372, 396 
 V. Stanley (1 Root, 245) 265 
 
 V. Stark Co. (24 111. 75) 479, 488 
 
 V. Steadraan (3 Oliio, 94) 261 
 
 V. Thorndike (56 Me. 32) 915 
 
 V. Wliitefield (18 Me. 286) 1025, 1027 
 V. Wilson (2 N. H. 202) 261, 288 
 
 Johnson Co, v. Hicks (2 Ind. 527) 821 
 
 Johnston w. Boyle (8 U. C. Q. B. 142) 627 
 V. Charleston (1 Bay, 441) 227 
 
 V. Charleston (3 S. C. 232) 1055 
 
 V. Macon (62 Ga. 645) 778 
 
 V. Scott (11 Mich. 232) 626 
 
 JoUet V. Harwood (86 111. 110) 1056 
 
 V. Railroad Co. (23 111. 202) 599 
 
 V. Seward (86 111. 402) 1056 
 
 V. Verley (35 111. 58) 127, 720, 950, 
 
 1022, 1037 
 
 Jonas V. Cincinnati (18 Ohio, 818) 161, 
 
 763, 764 
 
 Jones in re (7 Exch. 586) 238 
 
 V. Andover (9 Pick. 146) 288, 297, 
 298, 641 
 v. Bird (5 B. & Al. 837) 1074 
 
 t>. Boston ( 104 Mass. 461) 604, 896, 923 
 V. Boston (104 Mass. 75) 1031, 1034 
 V. Carmarthen (8 M. & W. 805) 254 
 V. Columbus (62 Ind. 422) 731 
 
 V. Lancaster (4 Pick. 149) 456 
 
 V. Little Rock (25 Ark. 301) 481 
 
 V. Loving (55 Miss. 109) 265, 827 
 V. Mayor (25 Ga. 610) 188 
 
 V. Mersey Docks (11 H. L. Cases, 
 
 443) 990 
 
 V. New Haven (34 Conn. 1) 89, 984, 
 
 1015, 1032, 1074, 1075 
 
 V. Railway Co. (L. R. 4 P. C. 98) 607 
 
 V. Richmond (18 Gratt. 517) 486 
 
 Jones I). Robbins (8 Gray, 329) 431 
 
 V. Schulmeyer (39 Ind. 119) 815 
 
 V. Soulard (24 How. 41) 210 
 
 V. State Auditor (4 Ohio St. 493) 862 
 V. Walthara (4 Cush. 299) 1018 
 
 V. Williams (Ambl. 651) 914 
 
 Jones River Co. v. Anderson (12 
 
 Leigh (Va.), 270) 652 
 
 Jordan v. Cass Co. (3 Dill. C. C. R. 
 
 185) 493, 536, 853 
 
 V. School District (38 Me. 164) 262, 
 
 286, 814, 461, 462 
 
 Judge V. Meriden (38 Conn. 9J) 883, 985, 
 
 1073, 1078 
 
 V. Sherbourne (11 M. & W. 374) 499 
 
 Judkins v. Hill (50 N. H. 140) 227 
 
 Judson V. Bridgeport (25 Conn. 426) 597, 
 
 600 
 V. Reardon (16 Minn. 431) 410 
 
 Jukes V. Commonwealth (20 Pa. 484) 221 
 Junction Railroad Co. v. Philadelphia 
 
 (88 Pa. 424) 745 
 
 Junkins v. Union School District (39 
 
 Me. 220) 297, 447 
 
 Justices V. Munday (2 Leigh (Va.), 
 
 168) 819, 820, 821 
 
 i;. Orr (12Ga. 137) 481,486 
 
 V. Paris, etc. Turnpike Co. (11 
 
 B. Mon. (Ky.) 143) 533 
 
 V. Plank-road Co. (9 Ga. 475) 897 
 V. Plank-road Co. (15 Ga. 39) 897 
 V. Stalnaker (13 Gratt. 523) 819 
 
 V. Turnpike Co. (11 B. Mon. 143) 869 
 Justices, Opinion of (6 Cush. 580) 213, 
 
 215, 216 
 
 Kaine v. Harty (4 Mo. App. 357) 327 
 
 Kaiser v. Weise, (85 Pa. 366) 793 
 
 Kaist V. St. Paul, etc. Railroad Co. 
 
 (22 Minn. 118) 1001 
 
 Kalbier v. Leonard (34 Ind. 497) 793 
 
 Kane v. Baltimore (15 Md. 240) 583, 589, 
 
 597 
 V. People (4 Neb. 509) 229 
 
 Kansas v. Clark (68 Mo. 588) 327 
 
 V. Flanagan (69 Mo. 22) 116, 409, 443 
 ». White (69 Mo. 261) 327 
 
 Kansas, etc. Railroad Co. v. Alder- 
 man, etc. (47 Mo. 349) 536 
 Karst V. St. Paul, etc. Railroad Co. 
 
 (22 Minn. 118) 126, 688, 703 
 
 Karwisch v. Atlanta (44 Ga. 204) 397 
 Kathman v. New Orleans ( 1 1 La. An. 
 
 145) . 71 
 
 Kavanaugh v. Sanders (SGreenl. 442) 243 
 Kayser v. Trustees (16 Mo. 88) 68, 211 
 Kean v. Asch (27 N. J. Eq. 57) 599 
 
 Kearney in re (7 Wheat. 38) 271 
 
 V. Andrews (2 Stoekt. 70) 234. 241, 413 
 V. Covington (1 Met. (Ky.) 339) 475, 
 
 476 
 V, London, etc. Railway Co. (L. 
 R. 5 Q. B. 411) 1028 
 
 Keasy ». Louisville (4 Dana (Ky.), 
 
 154) 1001 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 Keating v. Sparrow (1 Ball & Beat. 
 
 367) 353 
 
 Keckely v. Commrs. of Roads (4 Mc- 
 
 Cord, 257) 356 
 
 Keeler v. Frost (2^ Barb. 400) 298 
 
 0. Milledge (24 N. J. L. 142) 406,408, 
 
 409, 433 
 
 Keen v. Lynch (1 Rob. (Va.) 186) 629 
 
 Keene v. Bristol (26 Pa. St. 46) 609 
 
 Keeney i'. Hudson (3 Dutch. 362) 450 
 
 Keith «. Easton (2 Allen, 552) 1017, 1024, 
 
 1025,- 1028, 1031 
 
 Keithsburg v. Frick (34 111. 405) 540, 641, 
 
 548 
 Kellar v. Savage (17 Me. 444 ; 20 Me. 
 
 199) 261, 308, 311 
 
 Keller v. Corpus Christi (50 Tex. 614) 954, 
 
 956 
 
 V. Hicks (22 Cal. 457) 483 
 
 t>. Hyde (20 Cal. 593) 840 
 
 V. State (31 Iowa, 102) 789 
 
 . «. State (11 Md. 525) 735,789 
 
 Kelley v. Lindsay (7 Gray, 287) 939 
 
 V. Mayor of Brooklyn, (4 Hill, 
 
 263) 154, 156, 444, 481, 482, 487 
 
 Kellinger v. Street Railroad Co. (50 
 
 N. Y. 206) 664, 665, 666, 717 
 
 Kellogg V. Ely (15 Ohio St. 64) 797, 945 
 
 0. Northampton (8 Gray, 504) 1018, 
 
 1024, 1034 
 
 V. Northampton (4 Gray, 65) 1024, 
 
 1025, 1027, 1034 
 
 u. Thompson (66 N. Y. 88) 671, 1065, 
 
 1066 
 Kelly's Case (8 Gratt. (Va.) 632) 640 
 Kelly's Lessee v. Greenfield (2 H. & 
 
 M. (Md.) 132) 667, 673 
 
 Kelly V. Chicago (62 111. 279) 466, 826, 
 
 915 
 V. Cleveland (34 Ohio St. 468) 749 
 V. Fond du Lac (31 Wis. 179) 1026 
 V. Madison (43 Wis. 688) 937 
 
 V. Mayor, etc. of New York (11 
 
 N. Y. 432) 1056, 1057, 1058 
 
 D. Milwaukee (18 Wis. 83) 121, 122, 
 
 950 
 
 V. Pittsburg (85 Pa. 170) 790, 793 
 
 V. Toronto (23 U. C. Q. B. 426) 390 
 
 Kelsey v. Glover (15 Vt. 708) 1034 
 
 V. King (32 Barb. 410) 687, 694 
 
 V. King (33 How. (Pr.) 39) 629 
 
 «. Wright (1 Root, 83) 245, 246 
 
 Kemper v. Louisville (14 Bush, 87) 1001 
 
 Kempner v. Commonwealth (40 Pa. 
 
 St. 124) 322 
 
 Kendall v. King (17 C. B. 483) 146, 219 
 
 V. Post (8 Oregon, 14) 614, 685 
 
 V. Stokes (3 How. 87) 260, 818, 857 
 
 V. United States (12 Pet. 524) 818, 
 
 826, 850, 874 
 
 Kenicott!'. Supervisors (16 Wall. 425) 610, 
 
 522 
 Kennard ». Cass Co. (3 Dillon, C. C. 
 
 R. 147) 494 
 
 V. Morgan (92 U. S. 480) 751 
 
 Kennedy v. Board of Health (2 Pa. 
 
 St. 366) 379 
 
 V. Covhigton (8 Dana, 50) 138, 570, 
 
 647 
 V. Covington (17 B. Mon. 567) 139 
 V. Mayor (73 N. Y. 365) 987, 1019 
 u. Municipality (10 La. An. 54) 658 
 V. Newman (1 Sandf. 187) 599 
 
 K.Phelps (10 La. An. 227) 376,379, 
 380 383 
 V. Sowden (1 MeMuU. 328) 346,' 352, 
 
 354 
 
 V. Troy (77 N. Y. 493) 925 
 
 u. SVashington (3 Cranch, C. C. 
 
 * 695) 826 
 
 Kenosha v. Lamson (9 Wall. 477) 480 
 
 Kent V. Dickerson (25 Gratt. 817) 819 
 
 V. Walton (7 Wend. 256) 443 
 
 Kentucky v. Dennison (24 How. 
 
 (U. S.) 66) 43 
 
 Kentucky Seminary v. Wallace (15 
 
 B. Mon. 35) 206, 208 
 
 Keokuk v. Dressell (47 Iowa, 597) 404 
 
 V. Keokuk (5 N. W. Rep. 508) 1021, 
 
 1029 
 V. Packet Co. (45 Iowa, 196) 133, 135, 
 
 140 
 V. Packet Co. (95 U. S. 80) 133 
 
 Kepner v. Commonwealth (40 Pa. St. 
 
 124) 290, 341 
 
 Kerlin v. Campbell (15 Pa. St. 500) 559 
 Kerr a. Preston (L. R. 6 Ch. Div. 
 
 463) 956 
 
 V. Trego (47 Pa. 292) 231, 233, 291, 
 
 292, 831, 832, 833 
 
 Ketchum v. Buffalo (14 N. Y. 356) 146, 
 
 155, 158, 385, 386, 482, 557, 657, 
 
 913 
 
 Kettering v. Jacksonville (50 111. 39) 363, 
 
 412 
 Kettinger v. Street Railroad Co. (50 
 
 N. Y. 206) 716 
 
 Kettle V. Freemont (1 Neb. 329) 660, 665 
 
 Keyes v. Tait (19 Iowa, 123) 686 
 
 u.Westford (17 Pick. 27-3) 117,297,447 
 
 Keyser D.-School District (35 N. H. 
 
 477) 297, 460, 461 
 
 Kidder v. Peoria (29 111. 77) 598, 699 
 
 KiefCer ii. Ehler (18 Pa. St. 388) 500 
 
 Kiernan in re (62 N. Y. 457) 797, 798 
 Kilbourne v. St. John (59 N. Y. 21 ) 913 
 Kile V. Yellowhead (80 111. 208) 587 
 
 Killenger v. Street Railroad Co. (-50 
 
 N. Y. 206) 711 
 
 Killey V. Craynor (51 Mo. 541) 308 
 
 V. Forsee (57 Mo. 890) 240, 330 
 
 V. Kansas City (69 Mo. 102) 383 
 
 Kimball v. Boston (1 Allen, 417) 978, 980 
 V. Cushman (103 Mass. 194) 1026 
 V. Kenosha (4 Wis. 321) 583, 665 
 «. Lamprey (19 N. H. 215) 289,314, 
 
 V. Marshall (44 N. H. 465) 288, 299 
 V. Rosendale (42 Wis. 407) 65, 540, 
 
 1056 
 
TABLE OF CASES CITED. 
 
 Ixiii 
 
 Kimble v. Canal Co. (1 Ind. 285) 607, 609 
 
 Kincaid o. Hardin (5 N. W. R. 590) 959, 
 
 961, 9B2, 963 
 
 Kincaid's Appeal (66 Pa. St. 411) 374 
 
 Kinder v. Gillespie (63 111. 88) 351, 352 
 
 King y. Ashwell (12 East, 22) 827 
 
 V. Atkins (3 Burr. 1706) 377 
 
 V. Barrett (1 Salk. 383) 405 
 
 V. Bird (13 East, 379) 327 
 
 V. Boston (3 T. E. 592) 297, 298 
 
 V. Breclcnock, etc. Co. (3 A. & E. 
 
 217) 860 
 
 V. Broughton (5 Burr. 2700) 1032 
 V. Butler (15 Jolins. 281) 263 
 
 1-. Butler (8 East, .388) 299 
 
 ». Carlile (6 C. & P. 636) 723 
 
 w. Chase (15 N.H. 1) 1063 
 
 V. Clark (1 East, 38) 881 
 
 V. Commrs. (1 B & Adol. 232) 176 
 «. Cotterill ( I B. & Aid. 67) 886 
 
 V. Crake (Cowp. 29) 206 
 
 V. Cross (2 C. & P. 483) 376 
 
 V. Cross (3 Camp. 224) 723 
 
 V. Curry (4 B. & C. 961) 316 
 
 V. Davey (5 Esp. 217) 376 
 
 V. Devon (Ry. & M. 144) 720 
 
 V. Dimpsey (2 T. & R. 96) 344 
 
 V. Dock Co. (13 E. C. L. 1.39) 829 
 V. Duke of Bedford (6 T. R. 560) 223 
 V. East India Co. (4 B. & A. 530) 860 
 ■b. Eastrlngton (5 A. & E. 765) 1032 
 II. Ecclesfleld ( I B. & Al. 348) 1032 
 V. Essex (4 T. R. 591 ) 175, 178 
 
 V. Foxwell (1 R. 3 Cli. Div. 518) 223 
 ti. Grant (1 B. & Ad. 104) 112 
 
 V. Hardwick (11 East, 578) 818 
 
 V. Harris (1 B. & Ad. 936) 302 
 
 V. Harrison (3 Burr. 1328) 324 
 
 V. Incledon (13 East, 164) 877 
 
 V. Inhabitants of N. Curry (4 B. 
 
 & C. 959) 223 
 
 V. Ingram (1 W. Bl. 50) 314 
 
 V. Jacksonville (3 III. 306) 405 
 
 V. Johnson (1 Wils. -325) 377 
 
 u. Jones (3 Camp. 229) 382, 723 
 
 V. Leake (5 B. & Ad. 469) 1032 
 
 V. Lindsey (14 East, 317) 720 
 
 V. Lisle (Andrews, 163) 246 
 
 V. Liverpool (3 East, 86) 10-32 
 
 V. Lloyd (4 Esp. 200) 376, 377 
 
 V. Longworth (7 Ohio, 585) 231 
 
 V. iVIadison (17 Ind. 48) 787 
 
 V. Marquis, etc. (4 Camp. 189) 720 
 V. Mayor, etc. (6 Vin. Abr. 296) 246 
 V. Mayor, etc. (2 Term B. 182) 258 
 V. Mayor, etc. (1 Str. 385) 301 
 
 V. Merchant Tailors' Co. (2 Lev. 
 
 200) 353 
 
 V. Middlesex (3 A. & E. 615) 860 
 V. Miller (7 T. R. 278) 299 
 
 V. Milverton (3 A. & E. 284) 860 
 
 V. Mitchell ( 10 East, 511) 223, 316 
 V. Moore (3 B. & H. 184) 378 
 
 V. Neill (2 C. & P. 485) 376 
 
 I). NeviUe (1 Peak, 92) 376 
 
 King V. Newdigate (Comb. 10) 877 
 
 V. Norris (1 Ld. Raym. 337) 206 
 
 «. Norris (1 Barn. K. B. 385) 299 
 0. Northampton (2 M. & S. 262) 661, 
 
 720 
 V. Oxfordshire (1 B. & Ad. 289) 720 
 V. Oxfordshire (4 B. & C. 194) 1032 
 V. Penderryn (2 T. R. 513) 1032 
 
 w. Priest (6 T. R. 538) 344 
 
 V. Railroad Co. (60 N. Y. 181) 10.36 
 V. Railway Co. (2 Barn. & A. 646) 856 
 V. Richards (8 T. R. 634) 377 
 
 V. Richmond (6 T. R. 560) 316 
 
 0. Round (4 Ad. & El. 139) 314 
 
 V. Russell (6 B. & C. 566) 723 
 
 1). Russell (6 ESast, 427) ' 382,723 
 V. Russell (3 E. & B. 942) 877 
 
 V. Sadler (4 C. & P. 218) 377 
 
 V. Salop (13 East, 95) 720 
 
 V. Sankey (5 A. & E. 423) 175 
 
 V. Sargent (5 T. R. 466) 223 
 
 " V. Seeile (8 East, 573) 344, 405 
 
 V. Sergeant (5 T. & R. 465) 31(! 
 
 V. Smith (5 M. & S. 133) 344 
 
 V. Stead (8 T. R. 142) 377 
 
 V. Stoor (3 Burr, 1698) 377 
 
 V. Symonds (1 East, 189) 344 
 
 .;. Taylor (2 Str. 1167) 879 
 
 V. Thompson (2 T. R. 18) 405 
 
 V. Trafford (1 B. & A. 874) 377, 720 
 V. Ward (4 A. & E. 384) 723 
 
 V. "Watts (M. & M. 281) 376 
 
 V. West Riding (2 East, 342) 719, 720 
 V. West Yorkshire (5 Burr. 2594) 661 
 V. White (1 Burr. 333) 376 
 
 V. Whitney (3 A. & E. 69) 720 
 
 V. Williams (1 Russ. 321) 379 
 
 V. Williams (2 M. & S. 141) 299 
 
 V. Williams (1 W. Black. 93) 892 
 a. Wilson (1 Dillon, C. C. B. 555) IBO, 
 497, 503, 504, 851, 918 
 V. Wyatt (2 Ld. Raym. 1478) 344 
 V. Yorkshire (7 T. R. 467) 377 
 
 Kingman v. County Commrs. (6 Cush. 
 
 306) 604 
 
 Kingsberry w. Pettis Co. (48 Mo. 207) 487 
 
 Kingsbury v. Dedham (13 Allen, 186) 
 
 1028 
 
 V. School Dist. (12 Met. 99) 282, 287, 
 
 288, 296, 297, 447 
 
 Kingsley v. Brooklyn (5 Abb. N. 
 
 Cas. 1) 467 
 
 Kingston Ins. Co. v. Decker (33 Barb. 
 
 196) 243 
 
 Kinnie v. Waverley (42 Iowa, 437) 474 
 V. Zimpleman (36 Tex. 554) 731 
 
 Kinzie w. Chicago (2 Scam. (111.) 188) 220 
 
 Kip B. Patterson (2 Dutch. 298) 331, 357, 
 391, 406, 408, 409, 421, 766, 924 
 
 Kirby v. Boylston Market Ass. (14 
 
 Gray, 249) 395, 1021, 1025, 1029, 
 
 1060, 1061 
 
 V. Railroad Co. (48 Md. 168) 804 
 
 V. Shaw (19 Pa. 258) 729, 740, 744,757, 
 
 791 
 
bdv 
 
 TABLE OF CASES CITED. 
 
 Kirk V. King (3 Barr, 436) 567 
 
 V. Nowill (1 T. E. IIB) 345, 348, 349, 
 
 354 
 Kirkman v. Handy (11 Humph. 406) 379 
 Kirtlaiid v. Hotchkiss (100 U. S.491) 784, 
 
 788 
 Kitredge v. Milwaukee (20 Wis. 4()) 10 15, 
 1026, 1064 
 Kittering v. Jacksonville (50 111. 39) 414 
 Kittle V. Pteiffer (22 Cal. 490) 638 
 
 Klein v. New Orleans (99 U. S. 149) 572, 
 
 573 
 V. Smitii Co. (54 Miss. 254) 839, 842, 
 
 855 
 V. Warren Co. (51 Miss. 578) 839, 842, 
 
 855 
 Klinkener v. School District (1 Jones 
 
 (Pa.), 444) 629, 645, 661 
 
 Knapp V. Grant (27 Wis. 147) 540 
 
 V. Hoboken (38 N. J. L. 371; 39 
 
 N. J. L. 394) 154, 841 
 
 Kneeland v. Milwaukee (15 Wis. 454) 774, 
 
 790 
 
 Knibbs v. Hall (1 Esp. 279) 946 
 
 Knider v. Gillespie (63 111. 88) 399 
 
 Knight V. Heaton (22 Vt. 480) 669, 673 
 
 V. Nash (22 Minn. 452) 131 
 
 V. Railroad Co. (9 La. An. 284) 700 
 
 V. Wells (1 Ld. Raym. 80) 204 
 
 V. Wells (1 Lut. 519) 197 
 
 Kniper v. Louisville (7 Bush, 599) 356, 357, 
 
 762 
 
 Knowles v. Muscatine (20 Iowa, 248) 677 
 
 V. Yates (31 Cal. 82) 222 
 
 Knowlton v. Supervisors (9 Wis. 410) 7f 2 
 
 Knox V. Lee (12 Wall. 457) 156 
 
 V. Peterson (21 Wis. 247) 767, 814 
 
 Knox Co. V. Aspinwall (24 How. 376) 844, 
 
 845 851 869 
 
 V. Aspinwall (21 How. 539) 'l80,'479, 
 
 501, 509, 512, 513, 516, 523, 524, 
 
 626, 544, 546, 547, 548 
 
 V. McComb (19 Ohio, 320) 570 
 
 Kobs V. Minneapolis (22 Minn. 159) 984, 
 
 985, 1066, 1074, 1077 
 
 Koehler v. Iron Co. (2 Black (U. S.), 
 
 715) 218 
 
 Koester v. Ottumwa (34 Iowa, 41) 1018, 
 1038, 1048 
 Kohl V. United States (91 U. S. 367) 590 
 Koppicns V. Commrs. (16 Cal. 248) 614 
 Korah v. Ottawa (32 111. 121) 679, 720, 721 
 Kountze v. Omaha (5 Dillon, C. C. B. 
 
 443) 793 
 
 Krause v. Sacramento (48 Cal. 221) 1054 
 Kreigh v. Chicago (86 III. 407) 67>. 
 
 Krickle v. Commonwealth (1 B. Mon. 
 
 (Ky.)361) 410,413 
 
 Kucheman v. Railroad Co. (46 Iowa 
 
 366) 698 
 
 Kunkle v. Franklin (13 Minn. 127) 178 
 Kupper V. South Parish (12 Mass. 
 
 185) 297 
 
 Kyle V. Malin (8 Ind. 34) 146, 598, 763, 
 
 797 
 
 Kynaston v. Shrewsbury (2 Stra. 
 
 1051) 284 
 
 Labourdette v. Municipality (2 La. 
 
 An. 527) 282, 296 
 
 Lackland o. Railroad Co. (31 Mo. 180) 646, 
 
 696, 703, 705 
 
 V. Railroad Co. (34 Mo. 259) 703, 705 
 
 Lacon v. Page (48 III. 499) 1022, 1029 
 
 Laconia o. Oilman (55 N. H. 127) 679 
 
 Laeour i>. New York (3 Duer, 406) 949, 
 
 986, 992, 1075 
 
 Lade v. Shepherd (2 Stra. 1004) 629, 632 
 
 " " te V. Blood (40 Ind. 62) 1059 
 
 V. lush ( 19 Ind. 326) 605, 609, 683, 999 
 
 V. Cox (5 Ind. 38) 117,118,146,157,189 
 
 .-. Fowler (84 Ind. 140) 683, 746, 749, 
 
 780, 796, 800, 920, 999 
 
 ti. Jenners (lOInd. 74) 58,65,675 
 
 V. Male Orphan Asylum (4 La. 
 
 An. 1) 776 
 
 V. Spencer (14 Ind. 399) 999 
 
 V. Shultz (44 Ind. 97) 601, 603 
 
 Lafayette, etc. Railroad Co. v. Geiger 
 
 (.34 Ind. 185) 62, 184 
 
 Lafon V. Dufrocq (9 La. An. 350) 71, 418 
 La Grange v. State Treasurer (24 
 
 Mich. 466) 315 
 
 Lake v. Aberdeen (57 Miss. 260) 379 
 
 V. Decatur (91 111. 596) 798 
 
 V. Kennedy (13 Ohio St. 42) 673 
 
 u. Trustees of Williamsburg (4 
 
 Denio, .520) 156, 486, 487, 806 
 
 Lake View v. Letz (44 111. 81) 375 
 
 Lakin v. Ame.s (10 Cush. 198) 214, 216 
 
 Lamar Co. u. Clements (49 Tex. 347) 634, 
 
 635, 638, 639, 642 
 
 Lamb v. Lane (4 Ohio St. 167) 612 
 
 V. Lynd (44 Pa. St. 33ff) 232, 252, 829 
 
 830, 831 
 
 V. Shayc (14 Iowa, 567) 572 
 
 Lambar v. St. Louis (15 Mo. 610) 1068 
 
 Lamborn v. Co. Commissioners of 
 
 Dickinson Co. (97 U. S. 181) 941, 
 942, 946, 947 
 Lamoille, etc. Railroad v. Fairfield 
 
 (51 Vt. 257) 506, 536, 549 
 
 Lancaster v. Parnaby (11 A. & E. 
 
 222) 989 
 
 V. Richardson (4 Lans. 136) 398 
 
 V. Walsh (4 M. & W. 16) 1B6 
 
 Lanceyy. Bryant (30 Me. 466) 318 
 
 Land v. Hoffman (50 Mo. 243) 569 
 
 Lander v. McMillan (8 Jones (North 
 
 Car.), Law, 174) 867 
 
 V. School District (33 Me. 2-39) 2:0 
 Landers t>. Staten Island, etc. Co. (53 
 
 N. Y. 450) 418, 431 
 
 Landolt v. Norwicli (37 Conn. 615) 1020 
 V. Norwich (6 Am. Law Keg. N. 
 
 S. 383) 1030 
 
 Lane v. Boston (125 Mass. 519) 998 
 
 V. Cotton (1 Salk. 17) 264 
 
 V. Crombie (12 Pick. 177) 1021 
 
 V. Kennedy (13 Ohio St. 42) 666, 667 
 
TABLE OF CASES CITED. 
 
 IXY 
 
 Lane o. Schaulp (20 N. J. Eq. 82) 898 
 ». School District (10 Met. 462) 461 
 ». Sewell (IChitty, 175) 257 
 
 Lane Co. v. Oregon (7 Wall. 71) 729, 810 
 Lanfear v. Mayor (4 La. 97) 850 
 
 Langdon v. Castleton (30 Vt. 285) 254, 
 
 473, 487 
 V. Fire Department (17 Wend. 
 2.34) 769 
 
 Langhorn «. Robinson (20 Gratt. 
 
 (Va.) 661) 729 
 
 Langley v. Gallipolis (2 Ohio St. 107) 643, 
 
 644 
 Langsdale v. Bonton (12 Ind. 467) 312, 
 
 313, 314 
 
 Langworthy v. Dubuque (18 Iowa, 86) 792 
 
 B. Dabuque (16 Iowa, 271) 791, 793 
 
 Lanier v. Macon (59 Ga. 187) 790 
 
 Lansing v. Smith (4 Wend. 9) 135, 139 
 
 V. Toolan (37 Mich. 152) 968, 992, 1018 
 
 V. Treasurer (1 Dillon, 522) 93, 200, 
 
 765, 851, 871, 875 
 
 V. Van Gorder (24 Mich. 456) 476, 822 
 
 La Pointe v. O'Malley (46 Wis. 35) 243 
 
 Laramie Co. v. Albany Co. (92 U. S. 
 
 307) 76, 213, 215, 216, 218, 1045 
 Larkln v. Saginaw (11 Mich. 88) 958, 962, 
 968, 992, 1009 
 Lame v. Farren Hotel Co. (116 Mass. 
 
 67) 1061 
 
 La Rosa v. Mayor (4 La. An. 21) 388 
 Iiarrabee v. Peabody (22 Alb. L. J. 
 
 83) 1062 
 
 Larrison v. Peoria, etc. Railroad Co. 
 
 (77 111. 11) 903 
 
 Lasala v. Holbrook (4 Paige, 169) 1003 
 Lates V. Briggs (64 N. Y. 404) 805 
 
 Lathrop v. Bank (8 Dana, 1 14) 219 
 
 Lauwenstein v. Fond du Lac (28 Wis. 
 
 336) 124, 559 
 
 Lavalle v. People (68 111. 252) 893 
 
 Laver v. McLaughlin (28 Wis. 364) 293 
 Law u. Crombie (12 Pick. (Mass.) 
 
 176) 1041 
 
 V. People (87 111. 395) 163, 912 
 
 Lawhorne in re (18 Gratt. 85) 246 
 
 Lawrence v. Chicago & N. W. Bail- 
 road Co. (94 U. S. 164) 73 
 V. Fairhaven (5 Gray, 110) 994, 1066 
 V. Great North Railroad Co. (16 
 
 Q. B. 653) 995 
 
 V. Hedger (3 Taunt. 14) 238 
 
 V. KeMafn (11 Kan. 499) 155, 436, 439, 
 
 794 
 Lawrenceburg v. West (16 Ind. 337) 357, 
 
 371 
 Lawson v. Railway Co. (30 Wis. 597) 180, 
 
 923 
 
 V. Scott (1 Yerg. (Tenn.) 92) 923 
 
 Lawton v. Commrs. (2 Caines, 179) 431, 
 
 881 
 V. Erwin (9 Wend. 233) 242 
 
 Lay V. Wissman (36 Iowa, 305) 500 
 
 Layton v. New Orleans (12 La. An. 
 
 515) 88, 213, 218 
 
 Lazarus v. Toronto (19 U. C. Q. B. 
 
 13) 894 
 
 Lea V. Hernandez (10 Tex. 137) 196 
 
 Leach v. Cargill (60 Mo. 316) 767, 799 
 Learned v. Burlington (2 Am. L. R. 
 
 N. S. 894) 190, 768 
 
 Leavenworth v. Booth (15 Kan. 627) 357, 
 
 358, 736, 739 
 
 V. Casey (McCahon (Kan.), 124) 1068, 
 
 1072 
 V. Kinney (99 U. S. 623) 876 
 
 V. Lang (6 Kan. 274) 778 
 
 V. Mills (6 Kan. 288) 474, 475 
 
 u. Norton (1 Kan. 432) 190, 763, 764, 
 768, 915 
 V. Rankin (2 Kan. 357) 441, 443, 451, 
 
 475 
 V. Sfille (13 Kan. 539) 476 
 
 Leavenworth Co. v. Brewer (9 Kan. 
 
 307) 257 
 
 0. Miller (7 Kan. 479) 179 
 
 Leazure o. HiUegas (7 S. & R. 313) 5S9, 
 
 570 
 Lebanon v. Commrs. (9 Ohio, 80) 635, 642 
 V. Heath (47 N. H. 353) 466 
 
 V. Ohio & M. Railroad (77 111. 
 
 539) 731, 907 
 
 Le Claire ». Davenport (13 Iowa, 210) 385, 
 387, 389, 952 
 Le Clercq v. Gallipolis (7 Ohio, pt. 1, 
 
 218) 583, 642, 6.50, 658, 659 
 
 Le Couteulx v. Buffalo (33 N. Y. 333) 117. 
 
 558, 561 
 
 Ledwich v. McKim (53 N. Y. 307) 552 
 
 Lee V. Flemingburg (7 Dana, 59) 165 
 
 V. Lake (14 Mich. 12) 630, 633, 635 
 
 V. Minneapolis (22 Minn. 13) 1001 
 
 V. Sandy Hill (40 N. Y. 442) 631, 974, 
 
 975 
 V. Templeton (13 Gray, 476) 941 
 I). Thomas (49 Mo. 112) 774 
 
 V. Walls (1 Kenyon, 292) 349, 354, 
 
 414 
 Lee County v. Rogers (7 Wall. 181) 93, 501, 
 
 503, 851 
 Leeds !n re (53 N. Y. 400) 464 
 
 Leftwich v. Mayor (14 La. An. 152) 644 
 Legrand v. The College (5 Munf. 324) 220 
 Lehigh Co. v. Kleckner (5 W. & S. 
 
 (Pa.) 181) 938 
 
 Lehrman v. Robinson (59 Ala. 219) 800 
 Leicester v. Pittsford (6 Vt. 245) 1017, 
 
 1039 
 Leitch V. Wells (48 N. Y. 586) 500 
 
 Leland h. Portland (2 Oreg. 46) 63:i 
 
 Leman v. New York (6 Bosw. (N. 
 
 Y.) 414) 970 
 
 Lemington v. Blodgett (37 Vt. 215) 937 
 Lemon v. Hayden (13 Wis. 169) 632 
 
 Le Neve v. Mile End (8 E. & B. 1084) 627 
 Lennon «. New York (55 N. Y. 365) 10.3, 
 412, 599, 653, 808 
 Leominster Canal ». Shrewsbury, etc. 
 
 Railvfay (3 K. & J. 654) 914 
 Leonard «. Brooklyn (71 N. Y. 498) 672 
 
Ixvi 
 
 TABLE OF CASES CITED. 
 
 Leonard v. Canton (35 Miss. 189) US, 365, 
 
 942 
 
 V. Storer (115 Mass. 86) 1032, 1061 
 
 Leroy v. Mayor (20 Johns. 430) 924, 925 
 
 V. Springfield (81 lU. 114) 674 
 
 Les Bois v. Bramell (4 How. 449) 649 
 
 Lesley v. White (1 Speers, 31) 263, 465, 
 
 9-58 
 
 Leslie V. St. Louis (47 Mo. 474) 597, 605, 
 
 911, 919, 922 
 
 Lessee v. Church (8 Ohio, 298) 6B7 
 
 V. Saunders (1 Bay (S. C), 30) 667 
 
 Lester v. Baltimore (29 Md. 415) 946 
 
 V. Pittsford (7 Vt. 158) 1028 
 
 Lethridge v. Winter (1 Campb. 263) 627 
 
 Levasser v. Washburn (11 Gratt. 
 
 (Va.) 572) 673 
 
 Levee Co. v. Harding (27 Mo. 495) 741 
 
 Levering v. Mayor (7 Humph. 653) 219 
 
 Levison v. New York (56 N. Y. 361) 587 
 
 Levy in re (63 N. Y. 637) 779 
 
 «. New York (1 Sandf. 465) 950 
 
 Lewenthal v. New York (5 Lans. 532) 1075 
 
 Lewis in re (2 Gall. 483) ' 137 
 
 V. Elizabeth (26 N. J. Eq. 298) 896, 897 
 
 V. Henley (2 Ind. 332) 918 
 
 V. Litchfield (2 Root (Conn.), 436) 720 
 
 V. Marshall Co. (16 Kan. 102) 829 
 
 V. Mayor (9 Com. B. N. S. 401) 473 
 
 V. Oliver (4 Abb. Pr. R. 121) 261, 833 
 
 V. Rochester (9 C. B. N. S. 401) 174 
 
 V. San Antonio (7 Tex. 288) 637, 671 
 
 I/. Shreveport (3 Wood, C. C. 205) 188, 
 
 540 
 V. State (21 Ark. 211) 428 
 
 V. Toronto (39 U. C. Q. B. 343) 326, 
 
 936 
 V. United States (Morris (Iowa), 
 
 199) 361 
 Lewiston v. Proctor (27 111. 414) 405, 406, 
 
 421 
 Lewisville v. Zanone (1 Met (Ky.) 
 
 151) 942 
 
 Lexington e. Butler (14 Wall. 282) 479, 
 
 480, 499, 509 
 
 V. Headley (5 Bush, 608) 310, 311, 
 
 325, 767, 797 
 
 V. McQuillan's Heirs (9 Dana, 
 
 513) 610. 743, 747, 753 
 
 B. MuUiken (7 Gray (Mass.), 280) 838, 
 
 841 
 Libby v. Downey (5 Allen, 299) 392 
 
 Liddy v. St. Louis Railroad Co. (40 
 
 Mo. 506) 713 
 
 Liebstein v. Newark (24 N. J. Eq. 
 
 200) 806, 896, 921 
 Life Association r. Board, etc. (49 
 
 Mo. 512) 774 
 
 Ligonier v. Ackerman (46 Ind. 652) 941, 
 
 943, 944, 945 
 
 Lincoln v. Hapgond (11 Mass. 350) 265 
 
 V. Smith (27 Vt. 354) 380 
 
 o. Worcester (8 Cush. 55) 940 
 
 Lindholm v. St. Paul (19 Minn. 245) 1033. 
 
 1052 
 
 Linden v. Alameda Co. (45 Cal. 6) 857 
 Lindsav v. Rottaken (32 Ark. 619) 481 
 Lindsey v. Luckett (20 Tex. 516) 247, 
 
 834, 835 
 Linegar v. Rittenhouse (94 111. 208) 202, 
 
 229 
 
 Linning v. Charleston (1 McCord, 345) 783 
 
 Linton v. Ashbury (41 Cal. 625) 96, 102, 
 
 104, 597, 653, 654 
 
 V. Athens (53 Ga. 688) 792 
 
 Lipp V. Philadelphia (38 Pa. St. 603) 805 
 
 Lippincott v. Pana (92 111. 24) 147, 191, 542 
 
 V. Smythe (2 L. T. N. S. 79) 606 
 
 Liquidators v. Coleman, etc. ( L. R. 6 
 
 ♦ H. L. C. 189) 437 
 
 V. Municipality (6 La. An. 21) 93 
 Litchfield v. Polk County (18 Iowa, 
 
 70) 920 
 
 V. Vernon (41 N. Y. 123) 652, 729, 731, 
 
 744, 797, 810 
 
 V. WiI?not (2 Root (Conn.), 288) 670, 
 
 671 
 
 Little V. Madison (11 C. L. Jour. 55) 981 
 
 V. Madison (42 Wis. 643) 723, 981, 
 
 1043 
 
 V. Merrill (10 Pick. 543) 264, 286, 288, 
 
 V. Union, etc. (40 N. J. L. 397) 86, 475 
 
 Littlefield v. Maxwell (31 Me. 134) 646 
 
 V. Norwich (40 Conn. 406) 993, 1052 
 
 Little Meadows in re (35 Pa. St. 335) 213 
 
 Little Kock v. Barton (33 Ark. 436) 168, 
 
 790 
 V. National Bank (98 U. S. 308) 442, 
 
 482 
 
 c. State Bank (8 Ark. 227) 483 
 
 V. Willis (27 Ark. 672) 1065 
 
 Littleton v. Richardson (34 N. H.'179) 1063, 
 
 1064 
 Livaudais v. Municipality (16 La. 512, 
 
 5 La. An. 8) 639, 645 
 
 Liverpool Ins. Co. v. Massachusetts 
 
 (10 Wall. 666) 736 
 
 Livingston v. Albany (41 Ga. 21) 783 
 
 V. Mayor (8 Wend. 86) 610, 614, 638 
 
 V. McDonald (21 Iowa, 160) 1069, 1070 
 
 V. Pippin (31 Ala. 542) 173, 452 
 
 V. Welder (64 111. 427) 736, 911 
 
 V. Wider (63 111. 302) ' 919 
 
 Lloyd V. New York (5 N. Y. 369) 949, 986, 
 
 986, 1037, 1046, 1075 
 
 I). New York (7 Abb. Pr. 248) 76 
 
 Loan V. Boston (106 Mass. 450) 1017, 1022, 
 
 . 1029 
 
 Loan Assoc, v. Topeka (20 Wall. 655) 491, 
 
 542, 728 
 Lobdell V. New Bedford (1 Mass. 153) 720 
 Lock V. Lexington (122 Mass. 290) 927 
 Locke V. Central (4 Col. 65) 254 
 
 B. Rochester (5 Lans. 11) 287,303 
 Locke's Appeal (72 Pa. St. 491) 63 
 
 Lockbart v. Troy (48 Ala. 579) 72, 105, 
 
 293 884 
 Lockport V. Gaylord (61 111. 276) 7l' 166 
 Lockwood V. Mayor (2 Hilton (N. Y.), 
 
 66) 1056 
 
TABLE OF CASES CITED. 
 
 Ixvii 
 
 Lockwood V. St. Louis (24 Mo. 2(() 121, 
 610, 741, 776, 919, 922 
 Lof&nk V. Alleghany (5 Weekly Note 
 
 Cases, 3) 814 
 
 Logan ». Pyne (43 Iowa, 524) 119, 142, 360, 
 
 362 
 Logan Co. v. Lincoln (81 111. 156) 412, 674 
 Logansport v. Blackemore (17 Ind. 
 
 318) 446, 533 
 
 V. Crockett (64 Ind. 319) 307, 309,310, 
 
 412 
 V. Dick (22 Alb. L. J. 183) 1055 
 
 V. Dunn (8 Ind. 378) 633, 634, 638, 645 
 V. Legg (20 Ind. 315) 295, 305 
 
 V. Pollard (50 Ind. 151) 999 
 
 V. Wright (25 Ind. 512) 1074, 1075 
 Lohrun v. Eyerman (5 Mo. App. 481 ) 806 
 Loker v. Brookline (13 Pick. 343) 451, 456, 
 
 1020 
 V. Damon (17 Pick. (Mass.) 284) 1018 
 Lombard v. Cheaver (Morris (Iowa), 
 
 473) 361 
 
 London v. Barnardston (1 Lev. 16) 4U 
 London, City of (3 Hargr. St. Tr. 
 
 545) 893 
 
 I). Vanacre (1 Ld. Raym. 499) 248, 331, 
 
 354 
 
 V. Wood (12 Mod. 674) 416 
 
 Londonderry «. Andover (28 Vt. 416) 110, 
 
 111 
 
 B. Derry (8 N. H. 320) 214 
 
 Long V. Battle Creek (39 Mich. 323) 311, 
 
 630 
 V. Fuller (68 Pa. St. 170) 609 
 
 V. O'Rourke (10 Phila. 129) 7i)9 
 
 Longmore v. G. W. Railroad Co. (35 
 
 L. J. C. P. 135) 141 
 
 Longworth v. Cincinnati (34 Ohio St. 
 
 101) 610 
 
 V. Evansville (32 Ind. 322) 68 
 
 Loomis V. Moffltt (5 Ohio, 358) 827 
 
 V. Spencer (1 Ohio St. 150) 264, 266 
 Lord V. Bigelow (6 Vt. 465) 61 
 
 V. Governor (2 Phill. 740) 291 
 
 V. Mayor (3 Hill, 426) 955 
 
 V. Oconto (47 Wis. 386) 116, 124, 125, 
 
 570 
 
 V. Oconto (68 Mo. 115) 778 
 
 Lord Brace's Case (2 Stra. 819) 267, 268, 
 
 275 
 Lord Colchester v, Kewney (Law R. 
 
 1 Exch. 368) 773 
 
 Lord Hawley's Case (1 Vent. 146) 275 
 
 Lorillard v. Monroe (11 N. Y. .392) 58, 
 
 898, 951, 962, 976, 985 
 
 Loring v. Small (50 Iowa, 271) 573 
 
 Lot V. Boss (38 Ala. 156) 763, 767, 771 
 
 Lott V. Co.x (43 Ala. 697) 785 
 
 V. Insurance Co. (54 Ala. 499) 907 
 
 Loud r. Charlestown (103 Mass. 278) 783 
 
 V. Charlestown (99 Mass. .208) 921 
 
 Louis County Court w. Sparks (10 Mo. 
 
 117) 833 
 
 Louisiana v. Wood (5 Dillon, 122) 458, 
 
 935 
 
 Louisiana State Bank v. Orleans Nav. 
 
 Co. (3 La. An. 294) 117, 155,468 
 Louisville v. Bank (3 B. Mon. 138) 686 
 V. Bank (3 Met. 148) 811 
 
 V. Commonwealth ( 1 Duvall, 295) 76, 
 89, 557, 571, 772 
 V. Henderson (5 Bush, 515) 476 
 
 V. Henning (1 Bush, 381) 788, 945 
 V. Higdon (2 Met. 526) 246 
 
 V. Hyatt (2 B. Mon. (Ky.) 177) 747, 
 
 797 
 
 V. Kean (18 B. Mon. 9) 864 
 
 V. McKean (18 B. Mon. 9) 113, 363, 
 
 864, 865, 871, 872 
 
 V. McKegney (7 Bush, 651) 307, 312, 
 
 314 
 V. Nevin (10 Bush, 549) 374, 375, 775 
 V. Osborn (10 Bush, 226) 688 
 
 V. Rolling Mill Co. (3 Bush, 416) 683, 
 
 1001 
 V. University of Louisville (15 
 B. Mon. 642) 83, 89, 95, 97, 106 
 Louisville, etc. Co. v. Letson (2 How. 
 
 497) 938 
 
 V. Louisville (8 Bush, 415) 125, 126, 
 396, 655, 688, 700, 708, 711, 
 Loute V. Allegheny County (10 Pitts. 
 
 L. J. 241) 842, 844, 867, 870 
 
 Love V. Hinkley (Abb. Adm. 436) 120 
 
 V. Jersey City (40 N. J. L. 456) 256 
 
 V. Ramsour (12 Ired. L. 328) 85, 214 
 
 V. Sclienck ( 12 Ired. L. 304) 85, 214 
 
 Loveland v. Detroit (41 Mich. 367) 165 
 
 Lovell V. St. Paul (10 Minn. 290) 474 
 
 Lovett 11. Railroad Co. (9 Allen 
 
 (Mass.), 557) 713 
 
 V, Steam, etc. Association, (6 
 Paige, 54) 576 
 
 Low V. Commissioners of Pilotage 
 
 . (R. M. Charlt. 302) 239, 406, 430 
 V. Dodd (1 Exch. 845) 171 
 
 V. Evans (16 Ind. 486) 239 
 
 V. Lewis (46 Cal. 549) 771 
 
 V. Pettingill (12 N. H. 340) 307 
 
 V. Towns, etc. (8 Ga. 360) 827, 883 
 Lowber v. Mayor, etc. of New York 
 
 (5 Abb. Pr. 325; 7 Id. 248) 56, 76, 
 
 195 
 
 Lowden v. Cincinnati (2 Disney, 203) 474 
 
 Lowell V. Boston (111 Mass. 463 186, 491, 
 
 737 
 
 V. B. & L. R. R. Co. (23 Pick. 24) 702, 
 
 1058, 1062, 1064 
 
 u. Commissioners (3 Allen, 550) 782 
 
 V. French (6 Cush. (Mass.) 223) 806 
 
 V. Oliver (8 Allen, 247) 178 
 
 ». Short (4 Cush. (Mass.) 275) 1032, 
 
 1061, 1064 
 
 V. Simpson (10 Allen (Mass.), 88) 725 
 
 V. Spaulding (4 Cush. 275) 726, 1024, 
 
 1029, 1061, 1064 
 
 V. Wentworth (6 Cush. (Mass.) 
 
 221) 800, 806 
 
 V. Wheelock (11 Cush. (Mass.) 
 391) 806, 807 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 Lowell 0. Wyman (12 Cash. (Mas3.) 
 
 273) 806,966,967 
 
 Lower Marungie v. Merkhoffer (77 
 
 Pa. 286) 1018 
 
 Loweree M. Newark (38 N. J. L. 151) 609 
 Lowery v. Delphi (56 Ind. 250) 1010 
 
 Lowler v. Mayor (5 Abb. Pr. R. 825) 56 
 Lowndes Co. v. Hunter (49 Ala. 507) 963 
 Lownsdale v. Portland (Deady, 139) 633 
 Lowry v. Rainwater (21 Alb. L.J. 72) 380 
 Loze V. Mayor (2 La. 427) 413 
 
 Lucas V. Board (44 Ind. 524) 85 
 
 ... New York (21 Barb. (N. Y.) 
 
 245) 1042 
 
 V. Pitney (3 Dutch, 221) 144, 145, 481, 
 
 482 
 
 V. San Francisco (7 Cal. 463) 474 
 
 V. Tippecanoe Co. (44 Ind. 524) 77,84 
 
 Ludlow V. Tyler (7 C. & P. 537) 205 
 
 Luehrman v. Taxing District (2 Lea 
 
 (Tenn.), 425) 16, 47, 71, 77, 87, 
 
 197, 235 
 
 Lumbard v. Aldrich (8 N. H. 31) 318, 414 
 
 Lumsden v. Cross (10 Wis. 282) 777 
 
 V. Milwaukee (8 Wis. 485) 614 
 
 Lund V. Tynesboro' (11 Cush. 563) 1022, 
 
 1028 
 Lutterloh v. Commissioners (65 No. 
 
 Car. 403) 869 
 
 Lycoming v. Union (15 Pa. St. 166) 102 
 
 Lyman v. Amherst (107 Mass. 339) 1040 
 
 V. Bridge Co. (2 Aiken (Vt.),255) 979 
 
 V. Burlington (22 Vt. 131) 604 
 
 V. Edgarton (29 Vt. 805) 985 
 
 Lynch in re (2 Hill, 45) 822 
 
 V. Alexandria (9 La. An. 498) 789 
 
 V. Laffland (4 Coldw. 96) 245, 247 
 
 ». Mayor (76 N. Y. 60) 1068, 1069 
 
 V. People (16 Mich. 472) 410 
 
 V. Smith (104 Mass. 52) 1040 
 
 Lynchburg v. Norvell (20 Gratt. 601) 487 
 
 Lynde v. Winnebago County (16 
 
 Wall. 6) 160, 190, 479, 489, 499, 
 
 510, 513, 622, 527, 561 
 
 Lynden v. Stanbridge (2 H. & N. 45) 171 
 
 Lynne Regis in re (10 Co. 122) ' 206 
 
 Lyon V. Adamson (7 Iowa, 509) 446 
 
 V. Commonwealth (3 Bibb, 430) 223 
 
 V. Fishmonger Co. (1 L. R. 1 App. 
 
 Cas. 662-) 136, 724 
 
 V. Rice (41 Conn. 245) 857 
 
 Lyons v. Coolidge (89 111. 629) 842 
 
 V. Desolette (124 Mass. 387) 1041 
 
 V. Munson (99 U. S. 684) 510 
 
 Maas V. Missouri R. R. (11 Hun, 8) 562 
 Macbeth v. Haldeman (1 Term R. 
 
 172) 263 
 
 Maoey w. Titcombe (19Ind. 153) 463 
 Machell v. Nevinson (2 Ld. Raym. 
 
 1865) 301 
 
 Macomber v. Godfrey (108 Mass. 
 
 219) 1065 
 
 V. Godfrey (11 Am. Rep. 349) 1065 
 V. Nichols (34 Mich. 212) 681, 723 
 
 Macon v. Franklin (12 Ga. 239) 629, 630, 
 
 634 
 V. Huff (6 Ga. 221) 437, 439 
 
 V. Macon (6 Ga. 648) 778 
 
 V. Macon Savings Bank (60 Ga. 
 
 138) 778, 787 
 
 V. Patty (9 Rep. 613) 168 
 
 V. Shores (97 U. S. 272) 499, 510, 636 
 
 Macon Co. Case (99 U. S. 682) 838 
 
 Macy t». Indianapolis (17 Ind. 267) 682, 
 
 683 999 
 McAden v. Jenkins (64 N. C. 796) ' 908 
 McAlister v. Clark (33 Conn. 91) 381 
 McBeaffl V. Chandler (9 Heisk. 349) 894, 
 755, 756, 761, 775, 776 
 McCabei). Fountain Co. (46 Ind. 380) 469, 
 
 473, 474 
 McCafEerty v. Spuyten Duyvil, etc. 
 
 Co. (61 N. Y. 178) 1058 
 
 V. Spuyten Duyvil, etc. Co. (19 
 Am. Rep. 267) 1058 
 
 McCall V. Byram Manf'g Co. (6 
 
 Conn. 428) 246 
 
 McCalla v. County (3 Ore. 424) 1010 
 
 McCann v. County (7 Cal. 121) 608, 609 
 
 V. Otoe Co. (9 Neb. 324) 116, 615, 616 
 
 McCartee v. Orphans' Soc. (9 Cow. 
 
 437) 567, 658, 661 
 
 McCarthy v. Bauer (3 Kan. 237) 984 
 
 V. Chicago (58 III. 38) 240, 725 
 
 V. Met. Board, etc. (L. R. 7 C.P. 
 
 608) 1005 
 
 V. Portland (67 Me. 167) 1015 
 
 t>. St. Paul (22 Minn. 527) 1001 
 
 • V. Syracuse (46 N. Y. 194) 696, 1048, 
 
 1067, 1072, 1073, 1075, 1077 
 
 V. Village of Oshawa (19 U. C. 
 
 Q. B. 245) 1011, 1025 
 
 McCaughey v. Providence (12 R. I. 
 
 449) 991 
 
 McCline v. Oxford (94 U. S. 429) 535 
 McClung V. Silliman (6 Wheat. 598) 826, 
 
 860- 
 
 V. St. Paul (14 Minn. 420) 2-54 
 
 McClureti. Bennett (1 Blackf. 189) 156 
 
 McCluskey v. Cromwell (11 N. Y. 598) 243 
 
 McComber v. Taunton (100 Mass. 255) 
 
 1027 
 McCombs V. Akron (16 Ohio, 474) 1002 
 V. Akron (18 Ohio, 229) 1002 
 
 McConnel v. Lexington (12 Wheat. . 
 
 582) 629 
 
 McConnell v. Dewey (5Neb. 385) 264, 265, 
 
 960, 963 
 V. Hamm (16 Kan. 228) 187 
 
 McConvill V. Jersey City (39 N. J.L. 
 
 38) 419 
 
 McCord V. Ochiltree (8 Blackf. 15) 568 
 McCormick v. Bay City (23 Mich. 
 
 457) 263, 304, 325 
 
 V. Kansas City, etc. (57 Mo. 433) 995 
 
 V. Lafayette (1 Ind. 48) 609 
 
 ». Patchin (53 Mo. 33) 682, 779, 780 
 
 McCoy t>. Brant (58 Cal. 247) 188, 441, 443. 
 
 909 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 McCoy V. ChilUoothe (8 Ohio, 370) 264, 
 
 266 
 V. Harnett (4 Jones (N. C.) Law, 
 180) 867 
 
 McCrackin v. San Francisco (16 Cal. 
 
 591) 164, 295, 305, 444, 454, 456, 
 461, 463, 574, 938 
 MeCready t. Guardians (9 S. & R. 
 
 99) 298 
 
 McCrickart w. Pittsburg (88 Pa. St. 
 
 133) 946 
 
 McCrory e. Griswold-(7 Iowa, 248) 604 
 McCubbin v. Atchison (12 Kan. 166) 476 
 McCulIoch V. State (11 Ind. 424) 826 
 McCuUom V. County (21 Iowa, 409) 676, 
 
 677, 1037 
 McCulIough t>. Board of Education 
 
 (51 Cal. 418) 645 
 
 V. Maryland (4 Wheat. 316) 54, 727, 
 
 730, 733 
 
 V. Mayor (23 "Wend. 458) 487, 821, 986 
 
 17. Moss (5 Denio, 567) 482, 489 
 
 McCunn's Case (19 N. Y. 188) 250 
 
 MoCurdy w. Tappan (26 Wis. 664) 728 
 
 MoCutchen in re (22 U. C. Q. B. 
 
 613) 1073 
 
 r. Horner (11 C. L. J. 16; 5 N. 
 
 W. R. 668) 968, 1009 
 
 McDermett v. Kingston (57 How. Pr. 
 
 196) 1047 
 
 McDermond v. Kennedy (Bright. 
 
 (Pa.) 332) 765 
 
 McDermott v. Met. Police Board (5 
 
 Abb. Pr. 422) 237, 323 
 
 McDonald i-.Elfe (1 Nott&McC. 410) 928 
 
 0. Murpliree (45 Miss. 705) 907 
 
 V. New York (68 N. Y. 23) 160, 443, 
 
 451, 458, 459, 461 
 
 V. Red Wing (13 Minn. 38) 954 
 
 V. Scliell (6 S. & R. 240) 431, 614 
 
 V. Schneider (27 Mo. 405) 576 
 
 McDonough V. Nevada City (6 Nev. 
 
 90) 1038 
 
 McDonough, Succession of (8 La. 
 
 An. 171) 562 
 
 McDonough Will Case (15 How. 367) 43, 
 554, 560, 561, 562, 665 
 McDougal V. Supervisors (4 Minn. 
 
 184) 130 
 
 McEwen v. Taylor (4 Greene, 532) 142 
 McFarland v. Kerr (10 Bosw. 249) 558, 
 
 671 
 V Railroad Co. (2 Beasl. Ch. (N. 
 J.) 17, 561) 711 
 
 McFarlane v. Ins. Co. (4 Denio, 392) 316 
 McFee v. Greenfield (62 Ind. 21) 364 
 
 McGaffin v. Cohoes (74 N. Y. 387) 987 
 McGary v. Lafayette (12 Rob. 668) 975, 
 
 1041 
 u. Lafayette (4 La. An. 440) 975, 976, 
 
 1041 
 McGear w. Woodruff, Treas. of Bridge- 
 ton (33 N.J. L. 213) 410,424 
 McGehee v. Mathis (21 Ark. 40) 610, 738, 
 
 749 
 
 McGinity v. New York (5 Duer, 674) 1048, 
 1052, 1061 
 McGlue V. Philadelphia (10 Pliila. 
 
 (Pa.) 348) 476 
 
 McGonigie v. Allegheny (44 Pa. St. 
 
 118) 744, 796 
 
 McGraft v. Brock (13 U. C. Q. B. 
 
 629) 687 
 
 McGregor ». Boyle (34 Iowa, 268) 658, 687, 
 
 1074, 1078 
 
 V. Calcutt (18 U. C. C. P. 39) 631 
 
 McGuinn v. Peri (16 La. An. 326) 797 
 
 Mclnerny «. Reed (23 Iowa, 410) 778, 812, 
 
 813, 814 
 Mclntire v. School Trustees (3 111. 
 
 App. 77) 243 
 
 V. State (5 Blackf. 384) 621 
 
 Mclntyre ». Railroad Co. (26 N. J. 
 
 Eq. 425) 699 
 
 V. Wood (7 Cranch, 504) 850 
 
 McKay v. Plank Road Co. (2 Mich. 
 
 138) 677 
 
 McKean v. Louisville (18 B. Mon. 
 
 (Ky.) 9) 825 
 
 McKee v. Bidwell (74 Pa. St. 218) 1027 
 V. Brown (23 La. An. 306) 797 
 
 V. Huron, etc. (1 U. C. Q. B. 
 
 368) 214 
 
 I). McKee (8 B. Mon. (Ky.) 433) 351, 
 
 352 399 
 
 V. Perchment (69 Pa. St. 342) 635,' 637, 
 
 V. St. Louis (17 Mo. 184) 629, 635 
 
 V. Town Council (Rice, Law, 24) 361, 
 
 928, 940, 941 
 
 V. Vernon (3 Dillon. C. C. R. 210) 499 
 
 McKenna v. Commissioners (Harper 
 
 (S. C), Law, 381) 638 
 
 McKinney v. O'Connor (26 Tex. 5) 226 
 McKnight v. New Orleans (24 La. 
 
 An. 412) 436 
 
 V. Parish of Grant (30 La. An. 
 
 361) 573 
 
 McLaughlin v. Cluley (56 Pa. St. 270) 224 
 
 V. Corry (77 Pa. St. 109) 1021, 1038 
 
 V. Corry (18 Am. Rep. 432) 1021 
 
 V. Municipality (5 La. An. 504) 601, 
 
 602,986 
 
 V. Railroad Co. (5 Rich. (S. C.) 
 
 Law, 583) 658, 705 
 
 V. Stevens (18 Ohio, 94) 139, 639 
 V. Stevens (2 Cranch, C. C. R. 
 148) 368 
 
 McLean v. Brantford (16 U. C. Q. B. 
 
 347) 459 
 
 V. Flagg (46 N. Y. 401J 744, 823 
 
 V. Railway Co. (33 U. C. Q. B. 
 
 198) 607 
 
 McLellan v. Young (54 Ga. 399) 130 
 
 McLott t'. Davenport (17 Iowa, 379) 919 
 
 McMahon v. Railroad Co. (5 Ind. 413) 621 
 
 McMasters v. Commonwealth (3 
 
 Watts, 292) 610, 745 
 
 McMaugh V. Milwaukee (32 Wis. 200) 1051 
 McMeeken u. Cincinnati (4 Ohio, 394} 699 
 
Ixx 
 
 TABLE OF CASES CITED. 
 
 McMiUen v. Boyles (6 Iowa, 304) 105, 540 
 McMuUen v. City Council (1 Bay, 
 
 46) 346, 431 
 
 JiIcNamaTa v. Estes (22 lovra, 246) 794, 
 
 795 
 McPherson v. Foster (43 Iowa, 48) 161, 
 162, 642, 843 
 McPike V. Parr (51 Mo. 63) 286 
 
 McRae v. O'Lain (1 McMuUen, 328) 352 
 McSpedon v. Mayor (7 Bosw. 601) 456, 
 
 475 
 McWhorter v. People (65 111. 290) 192, 
 
 482 
 McWllliams v. Morgan (61 III. 89) 645 
 Mackinnon v. Penson (25 £ng. Law 
 
 & Eq. 457) 960 
 
 Maddox v. Graham (2JVTet. (Ky.) 56) 179, 
 
 441, 444, 47d, 487, 551, 8.38, 845, 
 
 857, 868, 860, 864, 868, 871, 877 
 
 Madison v. Bartlett (2 III. 67) 488 
 
 V. Kelso (32 Ind. 79) 255 
 
 V. Korbly (82 Ind. 74) 239, 270, 276 
 
 » Ross (3 Ind. 2S6) 1066 
 
 V. Whitney (18 Ind. 33) 784 
 
 V. Whitney (21 Ind. 261) 784, 787 
 
 Madison County v. Alexander (1 Miss. 
 
 523) 839 
 
 Magee v. Commonwealth (46 Fa. St. 
 
 368) 668, 744 
 
 V, State (4 Ind. 362) 327 
 
 V. Supervisors (10 Cal. 376) 826, 831 
 Magill V. KaufEman (4 S. & R. 317) 455 
 Magruder v. Swann (25 Md. 173) 827 
 Maguire v. Smock (42 Ind. 1) 243, 454, 799 
 Maher v. Chicago (38 111. 266) 453, 455, 
 
 474 
 
 Mahon v. Halsted (39 N. J. L. 640) 601 
 
 V. Railroad Co. (24 N. Y. 658) 663, 
 
 697 
 V. Railroad Co. (Hill & D. Suppl. 
 (N. Y.) 156) 704 
 
 Mahoney v. Bank (4 Ark. 620) 60 
 
 Mahony v. Railroad Co. (104 Mass. 
 
 73) 1040 
 
 Main v. McCarty (15 111. 442) 238, 409 
 Major V. Randolph (4 W. & S. (Pa.) 
 
 514) 836 
 
 Malchus V. Highlands (4 Bush (Ky.), 
 
 547) 754 
 
 Maleverer v. Spink (1 Dyer, 36) 953 
 
 Malloch V. Anderson (4 U. C. Q. B. 
 
 481) 661 
 
 Mallory v. Mallett (6 Jones Eq. 345) 200 
 V. Supervisors (2 Cowen, 531) 257 
 Malone ». Murphy (2 Kan. 250) 430 
 
 V. Toledo (28 Ohio St. 643) 584 
 
 Maloy V. Marietta (11 Ohio, 636) 70 
 
 Maltus V. Shields (2 Met. 553) 790 
 
 Manchester v. Hartford (30 Conn. 
 
 118) 1025, 1029, 1048, 1052 
 
 V. Herrington (10 N. Y. 164) 261 
 Mandershid v. Dubuque (29 Iowa, 
 
 73) 635, 636, 637, 641, 719, 1022, 
 
 1039, 1061 
 
 V. Dubuque (25 Iowa, 108) 1022, 1026 
 
 Mangan v. Atterton (L. B. 1 -Ex. 
 
 QOQ\ 1023 
 
 Manice v. Mayor (8 N. Y. 120) 476, 763 ■ 
 Mankato v. Meagher (17 Minn. 265) 634, 
 
 647 
 V. Warren (20 Minn. 144) ,631 
 
 V. Willard (13 Minn. 13) 656 
 
 Manko v. Chambersbnrg (25 N. J. 
 
 Eq. 168) 669, 671 
 
 Manley v. Gibson (laill. 312) 627, 628, 
 
 632 
 
 V. St. Helen's Canal Co. (2 H. & 
 
 N. 840) 995 
 
 Mann v. Pentz (2 Sandf. Ch. 257) 219 
 
 Manning v. Fifth Parish (6 Pick. 6) 311, 
 
 318 
 V. Manning (L. R. 2 P. & D. 223) 223 
 Manns v. Given (7 Leigh, 689) 819 
 
 Manny in re (14 How. 24) 819 
 
 Manrose v. Parker (90 III. 581) 637 
 
 Mansfield v. Fuller (60 Mo. 338) 841 
 
 Manufacturing Co. v. Davis (14 
 
 Johns. 238) 204 
 
 Marant v. Chamberlain (6 H. & N. 
 
 541) 627 
 
 Marble v. Worcester (4 Gray, 395) 1019, 
 
 1022, 1028 
 
 Marbury v. Madison (1 Cranch, 137) 241, 
 
 857, 874 
 March v. Commonwealth (12 B. Mon. 
 
 25) 330, 368 
 
 Marchant v. Langworthy (6 Hill, 646) 287 
 
 Marcy v. Oswego (92 U. S. 637) 510, 613, 
 
 614, 517, 518 
 
 V. Taylor (19 III. 634) 637 
 
 Marietta v. Fearing (4 Ohio, 427) 76, 332, 
 
 339, 364 
 Market v. St. Louis (56 Mo. 189) 1029, 
 
 1051, 1052 
 Markham v. Mayor (23 Ga. 402) 682, 999 
 Markle v. Akron (14 Ohio, 586) 121, 322, 
 
 340, 430 
 V. Wright (13 Ind. 548) 291, 882 
 
 Marquis, etc. v. Coyney (7 B. & C. 
 
 259) 627 
 
 Marr v. Enloe (1 Yerg. 462) 755 
 
 V. Vienna (10 U. C. L. J. 275) 223 
 Marriage v. Lawrence (3 B. & Ad. 
 
 144) 317 
 
 Marriott v. Baltimore (9 Md. 160) 980 
 V. Hampton (2 Smith's L. Cases, 
 
 237) 940, 946, 946 
 
 V. Hampton (2 Esp. 646) 940, 945, 
 
 946 
 
 V. Stanley (1 M. & G. 568) 1023 
 
 Marsh v. Brooklyn (69 N. Y. 280) 605, 919 
 
 V. Fulton Co. (10 Wall, 676) 188, 190, 
 
 441, 442, 451, 461, 462, 601, 610, 
 
 523, 524, 536, 542, 544, 548, 550, 
 
 843 
 
 u. Little Valley (64 N. Y. 112) 841 
 
 Marsh & Co. o. Van Keuren (23 N. 
 
 J. Eq. 251) 378 
 
 Marshall v. Guion (11 N. Y. 461) 139 
 
 V. Kerns (2 Swan, 68) 222 
 
TABLE OF CASES CITED. 
 
 Ixxi 
 
 Marshall i>. Silliman (61 111. 218) 105, 192, 
 
 225, 540, 911 
 
 V. Smith (L. R. 8 C. P. 416) 348 
 
 I'. Vicksburg (I5 Wall. 146) 776 
 
 Marshall County v. Cook (38 111. 44) 191, 
 
 222, 482, 542, 548 
 
 Martel v. East St. Louis (94 111. 67 ) 411, 412 
 
 Martin in re (27 Ark. 467) 332 
 
 «. Bank (15 Ala. 587) 570 
 
 «. Brooklyn (1 Hill, 545) 1075 
 
 V. Dix (52 Miss. 63) 76, 790 
 
 V. Evansville (32 Ind. 85) 139, 633 
 
 V. Lemon (26 Conn. 192) 297, 298 
 
 i;. Mayor (1 Hill (N. Y.), 545) 89, 125, 
 
 264, 451, 601, 957, 986 
 
 17. O'Brien (34 Miss. 21) 134 
 
 V. People (88 111. 390) 363 
 
 V. San Francisco (16 Cal. 285) 487 
 
 Martindale V. Palmer (52 Ind. 411) 235, 
 
 290, 341, 413 
 
 Marungie v. Merkhoffer (77 Pa. St. 
 
 286) 1019 
 
 Mason v. Bristol (10 N. H. 86) 449 
 
 V. Ellsworth (32 Me. 271) 1042, 1052 
 ». Fearson (9 How. 248) 127 
 
 V. Kennebec, etc. (31 Me. 215) 1000 
 V. Lancaster (4 Bush (Ky.),406) 766, 
 
 789 
 
 1/. Muncaster (9 Wheat. 445) 556 
 
 V. Pitt (21 Mo. 391) 213 
 
 V. Shawneetown (77 111. 533) 323 
 
 Mass. </. Cummings (22 Alb. L. J. 
 
 376) 944 
 
 Massing «. Ames (37 Wis. 645) 767 
 
 Masteri). Fell (Willes, 884) 362 
 
 Master of the Rolls (1 Keen, 513) 900 
 
 Masters v. Warren (27 Conn. 293) 1041 
 
 Matheney o. Golden (5 Ohio St. 375) 126 
 
 Mather a. Brown (L. R. 1 C. P. 596) 226 
 
 Mathews v. Alexander (68 Mo. 115) 123, 
 
 125, 570, 647, 778 
 
 V. Barraboo (39 Wis. 674) 1026 
 
 V. Biddulph (3 M. & G. 390) 238 
 
 V. Kelsey (58 Me. 56) 699, 723 
 
 Mathieson v. Jersey City (26 N. J. 
 
 Eq. 247) 896 
 
 Matthis V. Cameron, (62 Mo. 504) 480,492 
 Mattingly v. Dist. of Columbia (99 
 
 U. S. 687) 105 
 
 Matts V. Hawkins (5 Taunt. 20) 178 
 
 Maupin u. Franklin (67 Mo. 327) 451 
 Maurice v. New York (8 N. Y. 120) 763 
 Maurin v. Smith (8 R. I. 192) 827 
 
 Mavon v. Halstead (39 N. J. L. 640) 821 
 Maximillian «. Mayor, etc. (62 N. Y.) 
 
 160) 89, 968, 978, 981, 982, 984 
 
 May V. Detroit (2 Mich. C. C. 230) 464 
 
 V. Princeton (11 Met. 442) 1022 
 
 V. Railroad Co. (3 Wis. 219) 613 
 
 Mayberry v. Franklin (6 Humph. 
 
 (Tenn.) 368) 749 
 
 Mayer in re (50 N. Y. 504) 71 
 
 V. New York (63 N. Y. 455) 805, 944 
 
 Mayhew v. Gay Head (13 Allen, 129) 304, 
 
 310, 311 
 
 Mayo V. James (12 Gratt. 17) 606, 928, 929 
 V. Murchie (3 Munford, 358) 635 
 
 Mayor in re (23 Wend. 277) 125, 927 
 
 V. Allaire (14 Ala. 400) 369 
 
 V. AUhorj) (5 Coldw. 554) 335 
 
 V. Attorney-General (3 CI. & Fin. 
 
 289) 562 
 
 V. Avenue Railroad Co. (33 N. Y. 
 
 42 ; 32 ib. 261) 345, 357, 360 
 
 V. Bailey (3 Hill, 531) 990 
 
 V. Bailey (2 Denio, 433) 589, 978, 990, 
 
 1066 
 V. Bailey (37 N. J. L. 519) 144 
 
 V. Bailey (1 Humph. 232) 769 
 
 V. Baldwin (57 Ala. 418) 907 
 
 V. Bank of Tennessee (1 Swan. 
 
 (Tenn.), 269) 732, 772 
 
 V. Barton (47 Ala. 84) 402 
 
 V. Beasley (1 Humph. 232) 331, 333, 
 357, 764 
 V. Blamu-e (8 East, 487) 
 V. Cashman (10 Johns. 96) 775 
 
 V. Cincinnati (1 Ohio St. 268) 330 
 V. Colgate (12 N. Y. 140) 814, 815 
 V. Conner (5 Ind. 171) 291 
 
 V. Cox (L. R. 2 H. L. C. 239, 280) 856 
 V. CunlifE (2 N. Y. 165) 972 
 
 e. Dargan (45 Ala. 310, 322) 731 
 
 V. Elliott (3 Rawle, 170) 562, 563, 567 
 V. Ensor (L. R. 4 Eg. 335) 386 
 
 t). FrankUn (12 Ga. 239) 659 
 
 V. Furze (3 Hill, 612) 127, 264, 828, 
 950, 1030, 1037, 1077 
 V. Geisel (19 Ind. 344) 275 
 
 V. Gill (31 Md. 375) 121 
 
 V. Gloucester (1 H. L. Cas. 285) 563 
 V. Graves (8 T. R. 592) 316 
 
 V. Gravier (5 Mart. (La.) 662) 655, 660 
 V. Hardwicke (L. R. 9 Exch. 13) 459 
 V. Hartridge (8 Ga. 23) 356, 787 
 
 V. Henly (12 CI. & Fin. 331) 194, 929 
 V. Henly (3 B. & Ad. 77) 929 
 
 V. Hopkins (13 La. An. 326) 95, 649 
 V. Horn (2 Harring. 190) 243 
 
 V. Horner (Cowp. 102) 110 
 
 V. Howard (6 Har. & J. 383) 811, 812 
 V. Hussey (21 Ga. 80) 367 
 
 V. Hyatt (3 N. Y. 156) 340, 368, 392 
 V. Inman (57 Ga. 370) 113, 154 
 
 V. Lefferraan (4 Gill, 425) 943 
 
 ». Leverich (13La. An. 332) 649 
 V. Lockett (13 La. 545) 236, 898 
 
 V. Long (31 Mo. 369) 318, 422, 423, 597 
 V. Long (1 Camp. 68) 318 
 
 V. Lord (9 Wall. 409) 838, 845, 851, 
 862, 864, 865, 871 
 V. Lord (18 Wend. 126) 954, 955, 956 
 t>. Lyme Regis (1 H. Bl. 206) 316 
 V. Maberry (6 Humph. 371) 755 
 
 V. McKee (2 Yerg. (Tenn.) 167) 811 
 V. McWilliams (52 Ga. 251) 783, 789 
 V. Maggioli (4 La. An. 73) 670 
 
 V. Magner (4 Mart. (La.) 1) 673 
 
 i;. Meserole (26 Wend. 132) 121, 895, 
 
 896 
 
Ixxii 
 
 TABLE OF CASES CITED: 
 
 Mayor v. Morgan (7 Mart. La. (0. 
 
 S.) 1) 228,322,431 
 
 V. Morgan (9 Mart. La. (N. S.) 
 
 381) 228 
 
 V. Morris Canal, etc. (1 Qeasl. (N. 
 
 J.) 561) 673 
 
 ». Musgrove (48 Md. 272) 440 
 
 V. Mutual Bank (20 N. Y. 387) 770 
 V. Muzzy (33 Mich. 61) 306 
 
 V. Newton (23 Ala. 660) 492 
 
 V. New York (63 N. Y. 455) 476 
 
 V. Nichols (4 Hill, 209) 332, 340, 392 
 V. Oraburg (22 Ga. 67) . 177 
 
 V. Ordrenaux (12 Johns. 122) 345, 348, 
 
 349 
 V. Pedley (4 B. & A. 397) 384 
 
 V. Pentz (24 Wend. 668) 955, 956 
 V. Pentz (25 Wend. 157) 955 
 
 V. Peyroux (6 Mart. (La.) 165) 388 
 V. Phelps (27 Ala. 65) 347 
 
 V. Pilkiogton (1 Keb. 597) 267 
 
 V. Railroad Co. (49 N. Y. 657) 1054, 
 1062, 1063 
 V. Randolph (4 Watts & S. (Pa.) 
 
 514) 68.3, 995, 1004, 1066 
 
 V. Ray (19 Wall. 468) 149, 154, 155, 
 
 443, 462, 479, 483, 484, 485, 486, 
 490,600 
 V. Regina (10 Q. B. 674) 863 
 
 ». Richardson ( 1 St. & P. 12) 608, 615 
 V. Rood (Hill & Denio, 146) 390 
 
 V. Rouse (8 Ala. 515) 869 
 
 V. Rowland (26 Ala. 498) 131 
 
 a. Royal St. Railroad Co. (45 Ala. 
 
 322) 731 
 
 V. Rural, etc. (L. R. 1 Exch. 844) 877 
 V. Shaw's Adm. (25 Ga. 690) 258 
 D. Shaw (16Ga.l72) 270,271,924,926 
 V. Shaw (14 Ga. 162) 928 
 
 V. Sheffield (4 WaU. 189) 1037, 1044, 
 1046, 1048, 10.52 
 V. Shelton (1 Head, 24) 57 
 
 V. Simpson (8 Q. B. 73) 281 
 
 V. Slack (8 Wheel. C. R. Gas. 
 
 2.37) 374 
 
 V. State (15 Md. 376) 214 
 
 V. State (4 Ga. 26) 71 
 
 V. Steamboat Co. (R. M. Charlt. 
 
 342) 629 
 
 V. Stuyvesant (17 N. T. 34) 639, 642 
 
 V. Thompson (29 Ark. 569) 967, 986, 
 
 1065, 1066 
 
 V. Thorne(7 Paige, 261) 334, 379, 400, 
 
 401, 402 
 
 V. Tows (5 Sneed, 186) 84 
 
 V. Williams (15 N. Y. 502) 402 
 
 V. Winfield (8 Humph. 767) 331, 3-33 
 
 V. Winter (29 Ala. 651) 453 
 
 V. Wright (2 Port. 230) 319 
 
 V. Wright (6 Yerg. 497) 646 
 
 V. Wright (19 Ind. 346) 275 
 
 ». Yuille (8 Ala. 187) 118, 345, 847, 
 
 .349, 850, 862, 866, 361, 393, 764 
 
 Mayor of Durham's Case (1 Sid. 33) 244, 
 
 886 
 
 Mayor of New York m re (17 -lohns. 
 
 (N. Y.) 77) 491 
 
 Mays V. Cincinnati (1 Ohio Si. 268) 117, 
 
 868, 861, 789, 763, 764, 943, 945, 
 
 946 
 
 Maysville v. Shultz (3 Dana, 10) 112 
 
 Maxwell v. Stanislaus Co. (53 Cal. 
 
 389) 464, 925 
 
 Meacham v. Railroad Co. (4 Cush. 
 
 291) 619 
 
 Mead in re (74 N. Y. 216) 653, 808, 913 
 V. New Haven (40 Conn. 72) 971, 981 
 Meagher v. County (5 Nev. 244) 253, 419 
 Mealej^t). St. Clair Co. (3 Dill. 163) 510 
 Mealing v. Augusta (Dudley (Ga.), 
 
 221) 929 
 
 Mealis v. Haywards (48 Ind. 19) 706 
 
 Means v. Hendershott (24 Iowa, 78) 166 
 
 Mears ». Graham (8 Blackford, 144) 156 
 
 V. Wilmington (9 Ired. 78) 1003, 1070, 
 
 1075 
 Mechanics' Bank v. Bank of Colum- 
 bia (6 Wheat. 326) 446 
 Mechanicsburg v. Meredith (64 111. 
 
 84) 719, 1009 
 
 Medical Institute v. Patterson (1 De- 
 nio, 61) 61 
 Medway Manuf. Co. v, Adams (10 
 
 Mass. 360) 206 
 
 Meech v. Buffalo (29 N. Y. 198) 471 
 
 Meed v. Ballston (76 N. Y. 829) 986 
 
 Meek v. Whitechapel Board, etc. (2 
 
 F. & F. 144) 1074 
 
 Meeker v. Van Rensselaer (16 Wend. 
 
 397) 814, 873, 378 
 
 Megowan v. Commonwealth (2 Met. 
 
 (Ky.) 3) 364,397 
 
 Mellen v. Western Railroad Co. (4 
 
 Gray, 301) 1075 
 
 Melvin v. Lisenby (72 111. 63) 548, 652 
 Memphis v. Adams(9Heisk. 518) 118, 219, 
 
 472, 478 
 
 V. Battaile (8 Heisk. 524) 680 
 
 V. Brown (97 U. S. 300) 848 
 
 b. Brown (20 Wall. 289) 469,472,473, 
 
 474, 476, 600 
 
 u. 'Connor (53 Mo. 468) 409 
 
 V. Insurance Co. (6 Baxter, 527) 732 
 
 V. Laski (9 Heisk. 511) 130 
 
 V. Lasser (9 Humph. 757) 1075 
 
 u. Lenore (6 Coldw. (Tenn.) 412) 671 
 
 V. United States (87 U. S. 298) 848 
 
 ■ B. Woodward (12 Heisk. 499) 259 
 
 Memphis Freight Co. v. Memphis (4 
 
 Coldw. 419) 693, 696 
 
 Memphis Packet Co. v. Gray (9 Bush, 
 
 137) 189, 688, 639 
 
 Menasha v. Hazard (101 U. S.) 510 
 
 Mendota c. Thomson (20 111. 197) 412 
 
 Mercer v. Hubbard (45 111. 139) 648 
 
 V. Jackson (54 III. 397) 1067 
 
 t;. Railroad Co. (36 Pa. St. 99) 95, 
 
 596, 662, 678, 696, 699 
 
 V. Railroad Co. (27 Pa. St. 389) 546 
 
 .,. Woodgate ( L. R. 5 Q. B. 26) 627 
 
TABLE OF CASES CITED. 
 
 Ixxiii 
 
 Mercer County v. Hackett { 1 Wall. 
 
 83) 154, 180, 479, 499, 809, 513, 
 516, 522, 524, 625, 646, 547, 648 
 Merchants' Bank v. Cook (4 Pick. 
 
 405) 961 
 
 ». Little Rock (5 Dill. 299) 481 
 
 Meriden v. Camp (46 Conn. 284) 747 
 
 Merriam v. Moody (25 Iowa, 163) 117, 118, 
 
 812 813 
 a. New Orleans (14 La. An. 318)' 356, 
 413, 739 
 Merrick i'. Amherst (12 Allen (Mass.), 
 
 500) 737, 740 
 
 I). Baltimore (43 Md. 219) 603 
 
 «. Plank-road Co. (11 Iowa, 74) 460 
 Merrifield i'. Worcester (110 Mass. 
 
 216) 994, 1078, 1076 
 
 Merrill v. Abbott (62 Ind. 549) 798, 799 
 
 V. Burbank (23 Me. 538) 576 
 
 V. Dixfield (30 Me. 157) 471 
 
 V. Hampden (26 Me. 234) 1034 
 
 V. Humphrey (24 Mich. 170) 919, 921 
 
 V. Plainfield (45 N. H. 126) 174, 909, 
 
 910 912 
 
 .,. Portland (4 Clifford, 138) 1014, ioi5, 
 
 1022, 1023, 1031, 1040, 1050, 1052 
 
 Merritt i>. Portchester (71 N. Y. 309) 763, 
 
 767, 800 
 Mersey Dock Cases (11 H.L. C. 687) 987, 
 989, 995, 998, 1038, 1049, 1078 
 Mersey Docks v. Gibbs (Law R. 1 
 
 H. L. 93) 141, 949, 989, 1038, 1049 
 V. Penhallow (Law Beg. 1 H. L. 
 
 93) 949,1049 
 
 V. Penhallow (1 H. & N. 439) 949 
 
 V. Penhallow (3 H. & N. 164) 949 
 
 V. Penhallow (7 H. & N. 329) 1049 
 
 Merwin v. Chicago (45 111. 133) 130, 131 
 
 Messenger ». Buffalo (21 N. Y. 196) 446, 
 
 477 
 Metcalf V. Hetherington (11 Exch. 
 
 257) 141 
 
 V. Hetherington (5 H. & N. 719) 141 
 w. St. Louis (11 Mo. 103) 322,373 
 Methodist Church in re (69 N. Y. 
 
 395) 777 
 
 (66 N. Y. 396) 762. 765, 775, 843 
 
 ». Baltimore (6 6111,391) 122,599, 
 
 605, .614 
 
 V. Hoboken (33 N. J. L. 13) 631, 639, 
 
 645, 647, 656, 661 
 
 Metropolitan Board of Health v. Heis- 
 
 ter (37 N. Y. 661 ) 18, 237, 372, 652 
 Metropolitan Railroad Co. i>. Quincy 
 
 Railroad Co. (12 Allen, 262) 716 
 
 Meuser v. Risdon (36 Cal. 239) 123, 778, 
 
 806, 808, 809 
 
 Meyer v. Bridgeton (37 N. J. L. 160) 409 
 
 V. Carolan (9 Tex. 260) 825 
 
 w. Johnson (63 Ala. 241) 788 
 
 V. Lindell Railway Co. (6 Mo. 
 
 App. 27) 713 
 
 ». Muscatine (1 Wall. 384) 120, 157, 
 
 180, 189, 468, 479, 482, 487, 501, 
 
 509, 513, 622, 524, 525 
 
 Meyer v. Newark (6 Am. Law Review, 
 
 576) 622 
 
 Meyers «. People (26 111. 173) 430 
 
 V. United States (1 McLean, 493) 243 
 Michel V. Police Jury (9 La. An. 67) 474 
 Michie inre (11 U. C. C. P. 379) 121, 797 
 Michigan City ». Roberts (34 Ind. 
 
 471) 826, 828 
 
 Middleport v. M\.na., etc. Co. (82 111. 
 
 562) 147, 191 
 
 Middlesex, etc. v. Davis (3 Md. 133) 204 
 Middlesex Railroad Co. o. Wakefield 
 
 (103 Mass. 262) 711 
 
 Middletown w. Allegheny Co. (37 Pa. 
 
 241) 154 
 
 V. Lowe (30 Cal. 596) 827 
 
 Middletown Bank v. Dubuque (15 
 
 Iowa, 394) 674, 576 
 
 Midley v. Bloominglon (88 111. 554) 1021 
 Milarkey v. Foster (6 Oreg. 378) 657, 658 
 Milburn o. Cedar Rapids (12 Iowa, 
 
 246) 689, 716 
 
 a. Railroad Co. (12 Iowa, 246) 701, 
 
 703 
 
 Miles V. Bough (3 Gale & D. 119) 307, 341 
 
 V. Chamberlain (17 Wis. 446) 345, 
 
 349 351 
 
 V. Charleton (29 Wis. 400) ' 71 
 
 V. Duncan (6 B, & C. 671) 942 
 
 Milford V. Holbrook (9 Allen, 17) 1032, 
 
 1061, 1062 
 
 Milford County v. Brush (10 Ohio, 
 
 111) 207 
 
 Milhau V. Sharp (15 Barb. 210) 690, 694, 
 
 703, 913 
 
 V. Sharp (27 N. Y. 611) 125, 655, 659, 
 
 660, 703, 708 
 
 V. Sharp (19 Barb. 435) 124 
 
 Military Parade Ground in re (60 N. Y. 
 
 319) 601 
 
 Mill Dam Foundry ». Hovey (21 Pick. 
 
 417) 218 
 
 Miller v. Board, etc. (66 Ind. 162), 146 
 V. Burch (32 Tex. 209) 378, 383 
 
 V. Corporation, etc. (25 U. C. Q. 
 
 B. 31) 1011 
 
 V. English (21 N. J. L. 317) 222 
 
 V. Ford (4 Rich. Law, 376) 263 
 
 i>. Grundy (13 Mich. 540) 915 
 
 V. Hull (4 Denio, 144) 443 
 
 V. Iron Co. (29 Mo. 122) 963 
 
 V. Lerch (1 Wall. Jr. 210) 562 
 
 V. Lynchburg (20 Gratt. (Va.) 
 
 380) 481 
 
 V. Mc Williams (20 Am. Rep. 297) 961 
 V. Mc Williams (60 Ala. 427) 672, 839, 
 
 961 
 V. Milwaukee (14 Wis. 642) 436 
 
 V. Mobile (47 Ala. 163) 606, 609, 797, 
 798, 896 
 V. Race (1 Burr. 452) 499 
 
 V. Savannah Fire Co (26 Ga. 678) 171 
 V. Stewart (9 Wheat. 702) 243 
 
 tt. Supervisors (25 Cal. 93) 249 
 
 V. Thomson (3 M. & G. 576) 481 
 
Ixxiv 
 
 TABLE OF CASES CITED. 
 
 Miller v. Trustees, etc. (88 Bl. 26) 923 
 MUliard v. Lafayette (5 La. An. 112) 601, 
 
 602 
 
 Millison V. Fisk (43 111. 112) 131 
 
 Mill's Case (T. Raym. 152) 870 
 
 Mills V. Brooklyn (32 N. Y. 489) 950, 998, 
 
 106B, 1068, 1070, 1072, 1073, 1074, 
 
 1075, 1077 
 
 V. Brooklyn (5 Am. Law Reg. N. 
 
 S. 33) 1066 
 
 V. Charleton (29 Wis. 400) 463, 465, 
 
 808, 809, 920 
 
 .,. Gleason (11 Wis. 470) 145, 146, 
 
 149, 155, 294, 460, 468 
 
 V. Gleason (8 Am. Law Reg. 683) 155 
 
 V. Thornton (26 111. 300) 783 
 
 V. Williams (11 Ired. (N. C.) 558) 62, 72 
 
 Milne v. Davidson (5 Martin, 586) 322, 
 
 323, 373, 380 
 
 Milnerit. Mayor (13La. An. 69) 212 
 
 V. Pensacola (2 Woods C. C. 637) 112, 
 
 154 
 Milnes v. Duncan (6 B. & C. 671) 946 
 Milward «. Thatcher (2 Term R. 87) 250, 
 
 251 
 Milwaukee v. Davis (6 Wis. 377) 1049, 
 
 1051 
 o. Milwaukee (12 Wis. 93) 216 
 
 tf. Railroad Co. (7 Wis. 85) 701 
 
 Milwaukee Iron Co. v. Hubbard (29 
 
 Wis. 51) 919 
 
 V. Schubel (29 Wis. 444) 925, 928 
 Milwaukee R. R. Co. in re (5 Wall. 
 
 188) 872 
 
 Miners' Bank v. United States (5 
 
 How. U. S. 213) 893 
 
 Miners' Ditch Co. v. Zellerbach (37 
 
 Cal. 543) 78, 442, 576, 935 
 
 Mining Co. v. Guardians (L. R. 7 Q. 
 
 B. 90) 775 
 
 Minnesota u. St. Paul (2 Wall. 609) 788 
 Minnesota, etc., Co. v. Palmer (20 
 
 Minn. 468) 764, 765, 794, 896 
 
 Minns w. West (38 Ga. 18) 500 
 
 Minor v. Bank ( 1 Pet. 46, 69) 260 
 
 Minot V. Boston Asylum (7 Met. 416) 208 
 
 V. Curtis (7 Mass. 441) 216 
 
 u. West Roxbury (112 Mass. 1) 40, 42, 
 
 902 
 Minturn v. Larue (23 How. 435) 117, 118, 
 
 142 
 Mitchell V. Burlington (4 Wall. 270.) 157 
 185, 482, 503 
 V. Davenport (34 Iowa, 194) 791 
 
 V. Foster (9 Dowl. P. C. 527) 225 
 «. Hay (37 Ga. 581) 824 
 
 ». Kirtland (7 Conn. 229) 597 
 
 V. Lemon (34 Md. 176) 410 
 
 W.Milwaukee (18 Wis. 92) 464,920 
 V. Rockland (41 Me. 363) 262, 373, 
 
 983 
 V. Rockland (45 Me. 496) 41, 237, 451, 
 
 973 
 
 V. Rockland (62 Me. 118) 168, 961, 
 
 963, 973, 979 
 
 MitcheU «. Rocktond (52 Me. 122) 168, 
 
 961, 963 
 V. Rome (49 Ga. 19) 671, 999, 1003 
 u. Rome (15 Am. Rep. 669) 1003 
 
 V. Turnpike Co. (3 Humph. 456) 607, 
 
 609 
 Mix ». Ross (57 111. 121) 810, 811, 813, 814, 
 
 815 
 
 Moale V. Baltimore (5 Md. 314) 581, 610, 
 
 638, 731, 747 
 
 Mobile V. Baldwin (57 Ala. 61) 763, 785 
 
 i>. Dargan (45 Ala. 310) 327, 783 
 
 V. Eslava (9 Port. 577) 136 
 
 U.Jones (42 Ala. 630) 407 
 
 !). Moog (53 Ala. 561) 137 
 
 V. Yuille (3 Ala. 137) 789 
 
 Mochler v. Shaftsbury (46 Vt. 580) 1025, 
 
 1027 
 V. Shaftsbury (14 Am. Rep. 634) 1025 
 Mohan v. Jackson (52 Ind. 599) 285 
 
 Moir V. Monday (Sayer, 181) 412, 413 
 Molett V. Keenan (22 Ala. 484) 599 
 
 Monaghan v. Philadelphia (28 Pa. St. 
 
 207) 840, 844, 928 
 
 Monies v. Lynn (124 Mass. 165) 1053 
 Monk Election in re (32 U. C. Q. B. 
 
 147) 225 
 
 Monmouth v. Gardiner (35 Me. 247) 720, 
 
 721 
 Monroe v. Hoffman (29 La. An. 651) 402 
 Montague u. Horan (12 Wis. 599) 487 
 Montgomery v. Barber (45 Ala. 237) 436 
 
 443, 445 
 V. Scott (34 Wis. 338) 1051 
 
 Montpelier v. East Montpelier (29 Vt. 
 
 12) 87, 92, 97. 106, 215, 563 
 
 V. East Montpelier (27 Vt. 704) 87, 92, 
 
 106, 215 
 
 Montville v. Haughton (7 Coon. 543) 242 
 
 Moody D. Niagara Co. (46 Barb. 659) 957 
 
 Mooers v. Smedley (6 Johns Ch. 28) 895 
 
 Mooney v. Kennett (19 Mo. 551) 408 
 
 Moor V. Cornville (18 Me. 293) 462 
 
 V. Newfield (4 Greenl. 44) 286, 312, 
 
 318, 414 
 
 Moore in re (62 Ala. 471) .883 
 
 ^. Abbott (82 Me. 46) 1022, 1023,1024, 
 
 1041 
 
 V. Chicago (60 III. 243) 778 
 
 V. FayetteviUe (80 N. C. 154) 741 
 
 V. Mayor (8 N. Y. 110) 587, 634 
 
 V. Mayor (73 N. Y. 238) 452, 461, 
 
 462, 523, 935, 936, 971 
 
 V. Minneapolis (19 Minn. 300) 1029, 
 
 10p8, 1049, 1051, 1052 
 
 V. New York (78 N. Y. 238) 456 
 
 V. People (14 How. 13) 371 
 
 V. Railroad Co. (8 Md. 110) 583 
 
 V. Railroad Co. (4 Gray, 465) 975 
 
 t>. State (16 Ala. 411) 369 
 
 V. State (48 Miss. 147) 870 
 
 Mootry v. Danbury (45 Conn. 650) 883, 
 
 1066, 1068 
 
 Moran v. Cleams (63 Barb. 185) 1068 
 
 V. Commrs. (2 Black, 722) 501 
 
TABLE OF CASES CITED. 
 
 Ixxv 
 
 Moran v. Lindell (52 Mo. 229) 796 
 
 V. Miami County (2 Blauk, 722) 191, 
 
 479, 499, 609, 513, 524, 549 
 
 V. Palmer (13 U. C. C. P. 450) 236 
 
 Morange v. Mix (44 N. Y. 315) 742 
 
 Morano v. Mayor (2 La. An. 218) 385, 391 
 
 Morden v. Porter (7 C. B. N. S. 641) 428 
 
 Morey v. Newfane (8 Barb. 645) 76, 960, 
 
 963, 1033 
 Morford u. Barnes (8 Yerg. 444) 431, 614 
 V. Unger (8 Iowa, 82) 71, 213, 792 
 Morgan v. Beloit (C. C. Wis. 1853) 851, 852 
 V. Cree (46 Vt. 773) 785 
 
 V. Dubuque (28 Iowa, 575) 475 
 
 V. Hallowell (57 Me. 375) 1015 
 
 V. Parham (16 Wall. 471) 785 
 
 V. Quackenbush (22 Barb. 72) 226, 
 
 232 
 V. Railroad Co. (96 U. S. 716) 630, 
 
 638 
 Morley v. Great Western Railroad 
 
 Co. (16 U. C. Q. B. 504) 1042 
 
 Morrell v. Uixfield (30 Me. 157) 262, 462 
 
 V. Sylvester (1 Greenl. 248) 241 
 
 Morrill i;. State (38 Wis. 428) 735, 738, 
 
 740, 789 
 Morris in re (11 Gratt. 292) 819, 872 
 
 V. Baltimore (5 Gill, 244) 942, 944 
 i>. Bowers (Wright (Ohio), 750) . 625 
 V. Brower (Anth. N. P. 368) 379 
 
 V. Burdett (1 Camp. 218) 257 
 
 V. Chicago (11 111. 650) 597 
 
 V. People (3 Denio, 381) 68, 174 
 
 .7. Rome (10 Ga. 532) 398 
 
 V. Underwood (19 Ga. 559) 892 
 
 Morris, etc. Railroad Co. v. Newark 
 
 (2 Stockt. Ch. (N. J.) 352) 701 
 Morris Canal Co. v. Fagin (22 N. J. 
 
 Eq. 430) 655 
 
 I/. Fisher (1 Stockt. Ch. (N. J.) 
 
 667) 479 
 
 V. Jersey City (1 Beasl. 252) 633, 896, 
 
 924, 926 
 
 «. Jersey City (26 N. J. Eq. 294) 609 
 
 Morrison v. Hershire (32 Iowa, 276) 743, 
 
 796 921 
 V. Hinkson (87 111. 587) 572, 573,' 694, 
 
 841 
 
 V. Lawrence (98 Mass. 219) 304, 305, 
 
 311, 312, 973, 978, 979 
 
 V. McDonald (21 Me. 550) 235, 419 
 
 Morrow v. Wood (56 Ala. 1) 243 
 
 Morse v. Boston (109 Mass. 446) 1029 
 
 V. Haynes (22 U. C. Q. B. 107) 1073 
 
 V. Richmond (41 Vt. 435) 1017, 1022, 
 
 1028 
 V. Richmond (8 Am. Law Reg. 
 N. S. 81) 1017, 1022 
 
 Moses 1). Fort Wayne & Chicago Rail- 
 road Co. (21 111. 5151 1065 
 V. Kearney (31 Ark. 261) 856 
 V. Railroad Co. (21 111. 622) 664, 696, 
 697, 699, 702, 711, 716, 999, 1065 
 V. Risdon (46 Iowa, 251) 122 
 Mosey v. Troy (01 Barb. 580) 1021, 1058 
 
 Mosher v. School Dist. (44 Iowa, 122) 104, 
 
 161 
 
 Mosley v. Alston (1 Phill. 790) 291 
 
 V. Walker (7 B. & C. 40) 884 
 
 Moss V. Cummins (22 Alb. L. J. 376) 940 
 
 V. Harpeth, etc. (7 Heisk. 283) 146 
 
 V. Oakland (88 111. 109) 342 
 
 V. Oakley (2 Hill (N. Y.), 265) 481 
 
 Mott V. Hicks (1 Cow. 513) 263, 446, 455, 
 
 482 
 
 V. Pa. Railroad Co. (39 Pa. St. 9) 126 
 
 V. Reynolds (27 Vt. 206) 307, 809 
 
 V. Schoolbred (L. R. 20 Eq. 22) 723 
 
 Motz I). Detroit (18 Mich. 495) 921 
 
 Moulton i>. Sandford (51 Me. 127) 1022, 
 
 1023, 1028, 1035 
 
 Moultrie v. Savings Bank (92 U. S. 
 
 631) 510 
 
 Mount Carmel v. Wabash Co. (50 111. 
 
 69) 357, 365 
 
 Mount Morris Square (2 Hill, 14) 924 
 Mount Morris Square in re (2 Hill, 
 
 20) 304, 927, 928 
 (1 Hill, 674) 927 
 
 Mount Pleasant v. Beck with (100 U. 
 
 S. 514) 94, 208, 214, 216 
 
 V. Breeze (11 Iowa, 399) 829, 370, 396 
 Mount Vernon v. Hovey (52 Ind. 563) 179 
 Mount Washington Co. in re (35 N. H. 
 
 134) 614 
 
 Mouse's Case (12 Col. 68) 953 
 
 (12 Col. 13) 953 
 
 Mowatt V. Wright (1 Wend. 355) 946 
 
 Mowberry v. JefEersonville (38 Ind. 
 
 198) 767, 797 
 
 Mower v. Leicester (9 Mass. 247) 41, 960, 
 963, 964, 1014, 1015 
 Mowrey v. Central, etc. Railroad (81 
 
 N. Y. 666) 713 
 
 Moyamensing Com. v. Long (1 Par. 
 
 (Pa.) 145) 656, 667 
 
 Mulherrin v. Railroad Co. (81 Pa. 
 
 St. 366) 745, 749 
 
 MuUarkey v. Cedar Falls (19 Iowa, 
 
 21) 124, 448, 721 
 Mullen V. Commrs. (85 Pa. St. 288) 774 
 
 V. St. Johns (57 N. Y. 567) 1028 
 
 V. St. Johns (15 Am. Rep. 830) 1028 
 
 Mumma v. Potomac Co. (8 Pet. 281) 198, 
 
 200, 202 
 Munger v. Railroad Co. (4 N. Y. 849) 1040 
 Municipality v. Bank (5 Rob. (La.) 
 
 151) 769, 774 
 
 V. Bank (5 La. An. 394) 787 
 
 V. Blanc (1 La. An. 385) 399 
 
 V. Blineau (3 La. An. 688) 334, 383 
 V. Botts (8 Rob. (La.) 198) 809 
 
 t>. Caldwell (8 Rob. 368) 263 
 
 w. Commrs. (1 Rob. (La.) 279) 112 
 u. Cotton Press Co. (6 Rob. (La.) 
 
 411) 769 
 
 V. Cutting (4 La. An. 335) 321, 385, 
 
 387, 391, 405, 406, 413 
 
 ». Dubois (10 La. An. 56) 356, 739 
 
 V. Duncan (2 La. An. 182) 740, 782 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 Municipality v. Dunn (10 La. An. 57) 
 
 610, 740, 743, 746^ 753, 780 
 V. Gas Light Co. (5 La. An. 439) 679 
 V. Guillotte (14 La. An. 297) 740, 753," 
 
 807 
 V. Hart (6 La. An. 570) 129 
 
 V. Johnson (6 La. An. 20) 781, 788 
 V. Kirk (5 La. An. 34) 646 
 
 u. Levee Co. (7 La. An. 270) 601, 631 
 V. McDonough (2 Bob. (La.) 
 
 244) 155, 560 
 
 V. Michoud (6 La. An. 605) 793 
 
 V. Morgan (1 La. An. Ill) 414 
 
 V. Palfrey 11 La. An. 497) 639 
 
 V. Pance (6 La. An. 515) 813 
 
 V. Pease (2 La. An. 538) 133, 140 
 i). Railroad Co. (10 Eob. (La) 
 
 187) 769, 774 
 
 V. Theatre Co. (2 Rob. (La.) 209) 105 
 V. Ursuline Nuns (2 La. An. 611) 793 
 V. Wheeler (10 La. An. 745) 741 
 
 V. White (9 La. An. 446) 739, 743,753 
 V. Wilson (5 La. An. 747) 367, 371 
 Municipality, etc. in re (12 U. C. Q. 
 
 B. 522) 828 
 
 Munn V. People (69 111. 80) 73 
 
 V. People (94 U. S. 313) 73 
 
 V. Pittsburg (40 Pa. St. 364) 1075, 
 
 1077 
 Munsell v. Temple (8 111. 96) 361 
 
 Murdocki;. Academy (12 Pick. 244) 276, 
 
 278 
 
 t>. Aiken (31 N. Y. 606) 547 
 
 V. Memphis (20 Wall. 590) 113 
 
 V. Warwick (4 Gray, 178) 1085, 1041 
 
 V. Woodson (2 Dill. C. C. 188) 68, 71 
 
 Murfree v. Leeper (1 Overt. 1) 881 
 
 Murphy m re (7 Cow. 163) 227 
 
 V. Chicago (29 111. 279) 696, 704, 
 
 999, 1065 
 
 V. City Council (11 Ala. 586) 135, 137, 
 
 140 
 
 B. Dean (101 Mass. 455) 1040 
 
 V. Gloucester (105 Mass. 470) 1018, 
 
 1027, 1048 
 
 ». Louisville (9 Bush, 189) 76, 443, 
 
 458, 460, 461, 462, 476, 767 
 
 V. Lowell (124 Mass. 564) 987, 1056 
 
 V. People (2 Cow. 815) 430 
 
 Murray v. Charleston (96 U. S. 432) 733, 
 
 784 
 V. Hoboken Land Co. (18 How. 
 
 272) 751 
 
 V. Lardner (2 Wall. 110) 479, 500, 553 
 
 u. Tucker (10 Bush, 240) 763,778, 
 
 779, 806, 807 
 
 Murtaugh v. St. Louis (44 Mo. 479) 983 
 
 Muscatine v. Hershey (18 Iowa, 89) 139, 
 
 140 
 V. Packet Co. (45 Iowa, 185) 138, 140, 
 942, 944 
 V. Railroad Co. (1 Dillon C. C. 
 
 536) 93, 94, 740, 765, 782 
 
 B. Steck (7 Iowa, 505) 235, 418, 432, 
 
 433 
 
 Muscatine v. Steck (2 Iowa, 220) 235 
 Muscatine Turnverein o. Funck (18 
 
 Iowa, 469) 195, 200 
 
 Musgrove v. Catholic Church (10 La. 
 
 An. 431) 327, 374, 375 
 
 i>. Nevison (1 Stra. 584) 284 
 
 V. Nevison (2 Ld. Raym. 1359) 284 
 
 Musselman v. Manly (42 Ind. 462) 804, 
 
 310 
 
 Musser v. Johnson (42 Mo. 74) 219 
 
 Muzzy V. Shattuck (1 Denio, 233) 262 
 
 Myers v. Bank (20 Ohio, 283) 54 
 
 V. Croft (13 Wall. 291) 569 
 
 V. Irwin (2 S. & B. 368) 61 
 
 V. People (26 111. 173) 417 
 
 i^. Simms (4 Iowa, 500) 604 
 
 V. Snyder (Brightley (Pa.), 489) 1055 
 
 Mylert v. Sullivan Co. (19 Pa. St. 181) 942 
 
 Myles V. York Railroad (43 Me. 362) 552 
 
 Myrick k. La Crosse (17 Wis. 442) 599, 
 
 800, 920 
 Mytton V. Duck (26 U. C. Q. B. 61) 626 
 
 JSTagle V. Augusta (5 Ga. 546) 680 
 
 Napier in re (18 Q. B. 695) 820 
 
 Napmanu. People (19 Mich. 352) 386, 394, 
 
 409, 414 
 Nash V. St. Paul (11 Minn. 174) 461, 464, 
 
 465, 485 
 Nash & McCracken in re (33 U. C. 
 
 Q. B. 181) 362, 376 
 
 Nashville v. Althrop (5 Coldw. 554) 789 
 
 V. Bank (1 Swan, 269) 732 
 
 V. Brown (9 Heisk. 1) 1054, 1058 
 
 V. Brown (24 Am. Rep. 289) 1054 
 
 V. Ray (19 Wall. 468) 494 
 
 V. Thomas (5 Ooldw. 600) 782, 787 
 
 V. Weiser (54 111. 245) 800, 802 
 
 Nason v. Boston (14 Allen, 508) 1020 
 
 National Bank v. Commonwealth (9 
 
 Wall. 353) 733 
 
 ti. Green (33 Iowa, 140) 500 
 
 V. Texas (20 Wall. 72) 500 
 
 Nauvoo V. Ritter (97 U. S. 389) 510 
 
 Navasota v. Pearce (46 Tex. 625) 1012 
 
 Navigation Co. v. Portland (2 Oreg. 
 
 81) 763 
 
 Naylor v. Galesburg (56 LI. 286) 327 
 
 Neal V. Railroad Co. (2 Grant, 137) 598 
 Neale v. Overseers (5 Whart. 538) 242 
 Neales v. State (10 Mo. 498) 420 
 
 Nealis v. Hayward (48 Ind. 19) 238 
 
 Neallf. Hill(16Cal. 145) 269 
 
 Nebraska City v. Campbell (2 Black, 
 
 590)1 1018, 1037, 1041, 1044 
 
 V. Lambkin (6 Neb. 27) 683, 999, 1006 
 
 V. Nebraska (9 Neb. 339) 467 
 
 Neely v. YorkviUe (10 S. C. 141) 203, 206, 
 
 441, 450, 499 
 
 Neenan v. Smith (50 Mo. 525 ; 60 Mo. 
 
 292) 743, 807, 810 
 
 Negus in re (10 Wend. 34) 928 
 
 Neiffer v. Bank (1 Head (Tenn), 162) 444 
 Neilson v. Wakefield (5 N. W. E. 
 
 458) 599 
 
TABLE OF CASES CITED. 
 
 Ixxvii 
 
 Nelson in re (1 Cow. 417) 822, 825 
 
 «. Godfrey (12111. 22) 600,096 
 
 V. La Porte (33 Iiid. 258) 690, 764 
 
 V. Mayor (63 N. Y. 636) 458 
 
 ». Milford (7 Pick. 18) 174, 175, 471 
 
 Neosho Co. v. Stoddart (13 Kan. 207) 938 
 
 Neuer v Fallon (18 Mo. 277) 130 
 
 Neuse River Co. v. Commissioners (6 
 
 Jones Law, 204) 819, 867 
 
 Nevada v. Hampton (13 Nev. 441) 102 
 Nevill V. Ross (22 U. C. C. P. 487) 325 
 Neville V. Kelly (12 C. B. N. S. 740) 166 
 Nevins v. Peoria (41 111. 602) 999, 1000, 
 1065, 1068, 1069, 1070, 1074 
 New Albany v. Meekln (3 Ind. 481) 783, 
 
 784 
 V. Sweeney (13 Ind. 245) 474, 476 
 New Albany, etc. Railroad Co. v. 
 
 O'Dailey (13 Ind. 353) 705 
 
 New Albany Bank u. Da,nville (60 
 
 Ind. 604) 146 
 
 Newark v. Elliott (5 Ohio, 113) 570, 571 
 
 i). Funk (15 Ohio, 462) 131 
 
 ». Murphy (40 N. J. L. 145) 410 
 
 V. State (34 N. J. L. 523) 742 
 
 Newark Bank o. Assessor (30 N. J. 
 
 L. 22) 109 
 
 Newberry n. New York (1 Sweeny, 
 
 369) 957 
 
 New Boston v. Dumbarton (12 N. H. 
 
 409) 110 
 
 New Brunswick, etc. Co. v. Commis- 
 sioners (38 N. J. L. 190) 760 
 Newby j.-. Piatt County (25 Mo. 258) 021 
 Newcastle in re (12 Clark & Fin. 402) 373 
 Newcomb r. Police Jury (4 La. An. 
 
 23:^) 474 
 
 Newell V. People (7 N. Y. 9) 168 
 
 New England, etc. Co. v. Robinson 
 
 (25 Ind. 6.36) 146 
 
 New Haven v. Railroad Co. (38 Conn. 
 
 422) 749, 786, 814, 921 
 
 V. Sargent (38 Conn. 50) 682, 685, 687 
 t>. Whitney (86 Conn. 373) 795 
 
 New Haven R. R. Co. v. Chatham 
 
 (42 Conn. 465) 192, 307, 624, 825 
 New Jersey o. Yard (95 U. S. 112) 109 
 New Jersey, etc. Co. v. Long Branch 
 
 (39 N. J. L. 28) 678 
 
 Newlin v. Davis (77 Pa. St. 817) 1019, 
 
 1038 
 Newling v. Francis (3 Term R. 189) 222 
 New London u. Brainard (22 Conn. 
 
 552) 117, 909, 910, 915 
 
 V. Montville (1 Root, 184) 214, 217 
 Newman u. Justices (5 Sneed (Tenn.), 
 
 695) 838 
 
 V. Scott Co. (1 Heisk. 787) 839 
 
 V. Sylvester (42 Ind. 106) 206, 457 
 Newmyer v. Mo. R. R. Co. (52 Mo. 
 
 81) 911, 922 
 
 V. Mo. R. R. Co. (14 Am. Rep. 
 394) 911 
 
 New Orleans v. Anderson (9 La. An. 
 
 823) 364 
 
 New Orleans v. Bank (10 La. An. 
 
 735) 739, 787 
 
 V. Bank (15 La. An. 89) 787 
 
 V, Becker (31 La. An. 644) 907 
 
 V. Bundu (14 La. An. 303) 355, 408 
 ... Clark (95 U. S. 654) 87, 102, 108, 
 104, 106, 690 
 V. Costello (14 La. An. 37) 846, 353, 
 402, 417 
 V. Davidson (80 La. An. 541) 810 
 w. Eliott (lOLa. An. 69) 7-39 
 
 V. Finnerty (27 La. An. 681) 259, 260 
 V. Finnerty (21 Am. Rep. 569) 259, 
 
 260 
 B. Graihle(9La. An. 561) 226,811, 
 
 812 
 V. Guillotte (12 La. An. 818) 385, 469 
 V. Hill (30 La. An. 664) 810 
 
 V. Hoyle (23 La. An. 740) 77, 79 
 
 V. Insurance Co. (25 La. An. 390) 983 
 ■,. Insurance Co. (23 La. An. 61) 129, 
 
 671 
 V. KaufCman (29 La. An. 283) 739 
 V. Lambert (14 La. An. 247) 379 
 
 V. Magnon (4 Martin (La.), 2) 670 
 V. Michoud (10 La. An. 763) 793 
 
 V. Miller (7 La. An. 651) 367, 371 
 V. Morris (3 Woods C. C. 108) 571 
 V. New Orleans (26 La. An. 478) 648 
 V. Philipi (9 La, An. 44) 329, 332 
 V. Poutz (14 La. An. 853) 108, 741 
 u. South Bank (11 La. An. 41) 739, 
 
 787 
 V. St. Anna's Asylum (31 La. An. 
 
 292) 774 
 
 1-. Stafford (27 La. An. 417) 384 
 
 ti. Staiger (lOLa. An. 68) 739 
 
 V. St. Louis Church (11 La. An. 
 
 244) 303, 327, 374, 376, 469 
 
 V. Turpin (13 La. An. 66) 356, 739 
 
 V. United States (10 Pet. 662) 133, 140, 
 
 625, 628, 629, 633, 637, 643, 647, 
 
 649, 666, 671 
 
 New Orleans, etc. Co. v. New Orleans 
 
 {26 La. An. 512) 76, 88, 96, 696 
 
 Newport v. Taylor (16 B. Mon. 699) 138, 
 
 139, 633, 638, 639, 646, 646, 647, 
 
 667 
 
 Newport Bridge Co. v. Foole (9 Bush, 
 
 264) 1001 
 
 Newport Trustees in re (16 Sinn. 346) 61 
 Newville Road Case (8 Watts (Pa.), 
 
 172) 677 
 
 New York v. Furze (3 Hill, 612) 1071 
 
 V. R. R. Co. (17 Hun (N. Y.), 242) 714, 
 
 786 
 ■;. Sheffield (4 Wall. (U. S.) 189) 1052 
 V. Second Ave. Railroad Co. (32 
 
 NY. 261) 125,766 
 
 I). Third Avenue R. R. Co. (83 
 N. Y. 42) 711 
 
 New York Elevated R. E. Co. in re 
 
 (70 N. Y. 327) 709 
 
 New York, etc. R. R. Co. v. Marvin 
 
 11 N. Y. 276) 432 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 
 New York Central, etc. R. R. v. Met- 
 ropolitan, etc. Co. (63 N. Y. 
 826) 581, 582, 692 
 
 New York Conference v. Clarkson (4 
 
 Halst. Ch. 541) 206 
 
 New York Institute v. Hjow (10 N. Y. 
 
 84) 208 
 
 New York, etc. Co. v. Brooklyn (71 
 
 N. Y. 580) 978 
 
 V. New Haven (42 Conn. 279) 761 
 Niagara, etc. Co. v. Bachman (66 N. 
 
 Y. 261) 627, 634, 635, 639, 640 
 Niblett V. Nashville (12 Heisk. 684) 1019, 
 
 1047 
 Nichol V. Mayor of Nashville (9 
 
 Humph. 252) 76, 89, 118, 179, 
 180, 188 
 Nicholls V. Great Western R. Co. (27 
 
 U. C. Q. B. 382) 1051 
 
 Nicliolsm re (6 Abb. N. Cas. 474) 277, 
 
 1028, 1035, 1048 
 
 V. Athens (66 Me. 402) 1035 
 
 V. Boston (98 Mass. 39) 236, 262 
 
 V. Bridgeport (23 Conn. 189) 597, 598, 
 
 599, 600, 610, 749 
 
 V. Bridgeport (23 Conn. 204) 748 
 
 V. Comptroller (4 Stew. & Port. 
 
 (Ala.) 164) 827 
 
 Nicholson v. Bradford Union (1 L. R. 
 
 Q. B. 620) 459 
 
 V. Railroad Co. (22 Conn. 74) 703 
 Nicholson Pavement Co. v. Painter 
 
 (35 Cal. 699) 465, 466, 767 
 
 Nickerson v. Dyer (105 Mass. 320) 263 
 Nicolay v. St. Clair Co. (3 Dillon, C. 
 
 C. R. 163) 522, 536 
 
 NicoUi). Gardner (13 Wend. 289) 135 
 
 V. Railroad Co. (12 N. Y. 121) 557, 
 
 562 
 Nightingale in re (11 Pick. 168) 385, 390, 
 
 392, 393 
 Niles Township v. Martin (4 Mich. 
 
 557) 958 
 
 Nill V. Jenkinson (15 Ind. 425) 918 
 
 Nims V. Troy (59 N. Y. 500) 1067, 1074, 
 
 1077 
 
 Ninth Ave. in re (45 N. Y. 729) 583 
 
 Noble B. Bullis (23 Iowa, 559) 945 
 
 V. Richmond (31 Gratt. 271) 1026, 
 
 1052 
 
 Nolan V. New Orleans (lOLa.An. 106) 260 
 
 Nolin V. Mayor (4 Yerg. 163) 380 
 
 Noonan v. Albany (21 Alb. L. J. 774) 1070 
 
 Norfleet v. Cromwell (70 N. C. 634) 592 
 
 Normand i'. Otoe Co. (8 Neb. 18) 909 
 
 Norris v. Academy (7 G. & J. 7) 9^, 106 
 
 V. Baltimore (44 Md. 606) 602, 603 
 
 V. Boston (4 Met. (Mass.) 282) 733 
 
 V. Litchfield (35 N. H. 271) 1040 
 
 V. Litchfield (35 N. H. 918) 1041 
 
 V. Mayor (1 Swan, 164) 213 
 
 V. Staps (Hobart, 210) 329, 408, 410, 
 
 412 
 V. Trustees (7 G. & J. 7) 78 
 
 ' "iW.N. 
 
 Norristown v. Fitzpatrick (8 \ 
 
 .C.) 979 
 
 Norristown v. Moyer (67 Pa. St. 355) 723, 
 1030. 1032 
 North Dumfries v. Waterloo (12 U. C. 
 
 Q. B. 507) 214 
 
 North Hempstead v. Hempstead (2 
 
 Wend. 109) 59, 61, 215, 216, 556, 
 660, 668, 667 
 North Hudson, etc. Co. v. Hoboken 
 
 41 N. J. L. 71) 360 
 
 North Lebanon v. Arnold (47 Pa. St. 
 
 488) 961 
 
 North Missouri Railroad Co. v. Ma- 
 
 guire (49 Mo. 490) 101, 729, 732, 
 ^ 787 
 
 V. Maguire (20 Wall. 46) 727 
 
 North Whitehall v. South Whitehall 
 
 (3 Serg. & R. 117) 217 
 
 North Yarmouth o. Skillings (45 Me. 
 
 1.33) 75, 106, 214, 216 
 
 Northern Liberties v. St. John's 
 
 Church (13 Pa. St. 104) 776, 815 
 Northern R. R. Co. v. Connelly (10 
 
 Ohio St. 159) 738 
 
 Northwood v. Barrington (9 N. H. 369) 286 
 
 Norton v. Mansfield (16 Mass. 48) 40 
 
 V. Peck (3 Wis. 714) 27 
 
 Norwich v. Breed (30 Conn. 535) 1048, 
 
 1061 
 V. Hubbard (22 Conn. 587) 802, 814 
 V. Story (25 Conn. 44) 677 
 
 Norwich, etc. Co. v. Norwich Gas Co. 
 
 (25 Conn. 19) 77, 690, 691 
 
 Nott's Case (U Me. 208) 399 
 
 Nottingham in re (1 M. & H. 245) 220 
 Newell V. Mayor (9 Exch. 457) 146, 219 
 V. Worcester (9 H. & G. 456) 436 
 V. Wright (3 Allen, 166) 265, 979 
 Nowlin V. State (49 Ala. 41) 931 
 
 Noyes v. Mason City (5 N. W. R. 595) 117, 
 
 1004 
 
 V. Morristown (1 Vt. 357) 1023 
 
 V. Ward (19 Conn. 250) 625, 627, 628, 
 
 630, 679 
 
 Nugent V. State (18 Ala. 521) 417 
 
 V. Supervisors, etc. (19 Wall. 241) 538, 
 
 535 
 
 Oakes v. Hill (10 Pick. 333) 16, 56 
 
 Oakland v. Carpenter (13 Cal. 540) 124, 
 
 126, 265, 295, 896, 897 
 
 V. Whipple (39 Cal. 112) 784, 810 
 
 Oakland Paving Co. v. Rier (52 Cal. 
 
 270) 96 
 
 Oakley i>. Mayor (1 La. 1) 782 
 
 17. Williamsburg (6 Paige, 262) 683 
 
 Oates v. Hudson (5 Eng. L. & Eq. 469) 941 
 
 O'Brien v. St. Paul (25 Minn. 331) 1068 
 
 V. St. Paul (18 Minn. 176) 1077 
 
 V. Trenton (7 U. C. C. P. 246) 631, 661 
 
 O'Brien Co. v. Brown (1 Dillon, C. C. 
 
 R. 588) 897 
 
 O'Connerw. Pittsburg (18 Pa. St. 187) 652, 
 682, 696, 699, 744, 999. 1007 
 O'Connor ». Otonabee (35 U. C. Q. B. 
 
 73) 1028 
 
TABLE OF CASES CITED. 
 
 Ixxix 
 
 Oconto V. Hall (20 Alb. L. J. 352) 805 
 
 V. Railroad Co. (45 Wis. 231) 714 
 
 O'Docherty v. Archer (9 Tex. 295) 229, 
 
 232 
 
 O'Donnel v. City (7 Phil. (Pa.) 234) 481 
 
 V. Bailey (24 Miss. 386) 732, 787 
 
 Odell V. Schroeder (58 111. 353) 980 
 
 Oebricke v. Pittsburg (7 Am. L. R. 
 
 725) 188 
 
 O'Ferrall «. Colby (2 Minn. 180) 832 
 
 Ogden V. Eaymond (22 Conn. 879) 264 
 
 Ogg V. Lansing (35 Iowa, 496) 978, 980, 
 
 981, 982, 983 
 
 V. Lansing (14 Am. Rep. 499) 978, 981, 
 
 982 983 
 
 O'Hale V. Sacramento (48 Cal. 212) 1054 
 
 O'Hara v. New Orleans (30 La. An. 
 
 152) 446, 464 
 
 V. Portland (S Oregon, 525) 76 
 
 Ohio V. Commissioners (6 Ohio St. 
 
 280) 179 
 
 V. Gazley (5 Ohio, 14) 810 
 
 V. Hibbard (3 Ohio, 63) 810 
 
 V. Moffltt (5 Ohio, 358) 882 
 
 Ohio, etc. Co. v. Merchants' Co. (11 
 
 Humph. 1) 453 
 
 O'Kane v. Treat (25 III. 557) 676 
 
 O'Laughlin v. Dubuque (42 Iowa, 539) 
 
 1025 
 
 Olcott V. Supervisors (16 Wall. 678) 67, 
 
 185, 491, 497, 500, 501, 503, 504, 
 
 541, 823 
 
 Old Colony Railroad v. Miller (125 
 
 Mass. 1) 608 
 
 Old South, etc. o. Boston (127 Mass. 
 
 378) 774 
 
 O'Leary v. Mankato (21 Minn. 65) 1019, 
 
 1038 
 
 ». Sloo (7 La. An. 25) 753, 794 
 
 Oleson V. Tolford (37 Wis. 327) 1051 
 
 O'Linda v. Lothrop (21 Pick. 292) 696, 
 
 722, 726 
 Olive Cemetery Co. v. Philadelphia 
 
 (22 A. L. J. 349) 775 
 
 Oliver ». Kansas City (69 Mo. 79) 1037, 
 
 1047, 1055 
 
 V. Keightley (24 Ind. 514) 909 
 
 V. Washington Mills (11 Allen 
 
 (Mass.), 268) 735 
 
 i;. Worcester (102 Mass. 489) 88,89, 
 
 984, 964. 968, 982, 984, 991, 992, 
 
 1014, 1015, 1062 
 
 V. Worcester (3 Am. Rep. 485) 964, 
 
 968 
 
 Olmsted v. Dennis (77 N. Y. 379) 250, 293 
 
 Olney v. Harvey (50 111. 454) 1.12, 203, 
 
 214, 572, 573, 842 
 
 V. Pearce (1 R. I. 292) 242 
 
 w. Wickes (18 Johns. 122) 263 
 
 Omaha v. Hammond (94 U. S. 98) 47' 
 
 0. Olmstead (5 Neb. 446) 424, 1037 
 
 O'Meara v. Mayor (1 Daly, 425) 982 
 
 Oneida Bank v. Ontario Bank (21 N. 
 
 y. 490) 155, 458 
 
 O'Neill V. Hudson (41 N. J. L. 161) 601 
 
 O'NeiU V. Lowell (6 Allen, 110) 1020 
 
 V. New Orleans (30 La. An. 202) 1029 
 
 u. Police Jury (21 La. An. 68B) 143 
 
 Onstott V. Murray (22 Iowa, 466) 635, 636. 
 
 637, 671 
 Ontario Bank v. Bunnell (10 Wend. 
 
 186) 770, 787 
 
 Opelika v. Daniel (59 Ala. 211) 181 
 
 Oregon v. McKennon (8 Oreg. 485) 229 
 V. Pyle (1 Oreg. 149) 253 
 
 Orleans v. Piatt (99 U. S. 676) 500, 510 
 Orr V. Baker (4 Ind. 86) 774 
 
 Orton V. State (12 Wis. 509) 473 
 
 Osborn v. Bank of United States (9 
 
 Wheat. 738) 54, 733 
 
 V. Danvers (6 Pick. 98) 941 
 
 V. Mobile (16 Wall. 479) 734, 736 
 
 V. Mobile (44 Ala. 493) 731 
 
 II. Tunis (1 Dutch. 633) 576 
 
 Osgood V. Clark (26 N. H. 307) 177, 211 
 
 V. Green (33 N. H. 318) 177 
 
 V. Manhattan Co. (3 Cow. 612) 318 
 
 Oswald V. Genet (15 Tex. 118) 639 
 
 Oswego V. Oswego Canal Co. (6 N. Y. 
 
 257) 640 
 
 Otis V. Janesville (47 Wis. 422) 1041 
 
 Ottawa V. Macy (20 111 413) 800 
 
 I/. Nelson (19 Kan. 234) 739 
 
 V. People (48 III. 233) 71, 127, 820, 
 
 825, 828, 856, 857 
 
 V. Railroad Co. (25 111. 43) 800, 802, 
 
 925 
 V. Spencer (86 111. 211) 754 
 
 V. Spencer (40 III. 211) 610, 754, 764, 
 
 776 
 
 V. Sweely (65 III. 484) 1041 
 
 V. Walker (21 III. 605) 676 
 
 Ottawa Co. v. Caleb (81 III. 556) 788 
 
 Ottawa Dist. v. Low (6 0. S. 546) 9.34 
 
 Ottumwa V. Parks (43 Iowa, 119) 1058, 
 
 1059, 1061, 1062 
 
 Ould V. Richmond (23 Gratt.464) 788, 789 
 
 Overacre v. Garrett (5 Lans. 156) 243 
 
 Overing v. Foote (65 N. Y. 263) 808 
 
 Overman v. May (35 Iowa, 89) 684 
 
 Overseers v. Kelly (18 Johns. 382) 217 
 
 I.. Mayor (18 Johns. 382) 451 
 
 V. Overseers (2 Serg. & R. 422; 217 
 
 V. Overseers (18 Johns. 382) 217 
 
 V. Sears (22 Pick. 122) 16, 56, 60,245, 
 
 556 
 
 K. Supervisors (16 N. Y. 341) 442 
 
 Owen V. Smith (31 Barb. 641) 198, 200 
 
 Owens 0. Milwaukee (47 Wis. 461) 767, 
 
 1003 
 Owings V. Speed (5 Wheat. 420) 317 
 
 Owners v. Albany (15 Wend. 374) 590, 642 
 Oxford !'. Society (55 N. H. 463) 562 
 
 Oxford Bank v. Wheeler (72 N. Y. 
 
 201) 937 
 
 Oxford's Case (10 Coke, 44) 207 
 
 Pacific Hotel Co. v. Lieb (88 111. 602) 788 
 Pacific Railroad v. Cass Co. (53 Mo. 
 
 17) 788 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 Pacific Railroad v. Chrystal (25 Mo. 
 
 544) 621 
 
 V. Governor (23 Mo. 353) 325, 827 
 
 P.Lincoln Co. (1 Dill. 314) 54 
 
 Pack V. Mayor (8 N. Y. 222) 1056, 1057, 
 
 1058 
 
 Packard v. Collins (23 Barb. 444) 379 
 
 a. New Bedford (9 AUen, 200) 1017, 
 
 1028 
 
 Packett V. Atlee (2 Dill. 479) 133, 136 
 
 - V. Atlee (21 Wall. 389) 133, 136 
 
 V. Keokuk (95 U. S. 80) 133, 785 
 
 „. St. Louis (4 Dillon, 18) 133, 140, 
 
 785 
 
 V. St. Louis (100 U. S. 423) 133, 785 
 
 V. St. Paul (3 Dill. 454) 133 
 
 Paddlefordi;. Mayor (14 Ga. 438) 788 
 
 Paducah v. Cully (9 Bush, 323) 242, 243 
 
 Page V. Allen (58 Pa. St. 338) 909 
 
 V. Baltimore (34 Md. 558) 134 
 
 V. Chicago (60 111. 441) 778 
 
 V. Clopton (30 Gratt. 415) 819 
 
 «. Fazakerly (36 Barb. 392) 392, 393 
 
 D. Frankford (9 Me. 155) 174 
 
 V. Graham (57 111. 144) 737 
 
 V. Hardin (8 B. Mon. 648) 259, 273 
 
 V. State (11 Ala. 849) 363 
 
 V. St. Louis (20 Mo. 136) 121, 774 
 
 Paige V. Heinburg (40 Vt. 81) 557, 562 
 
 Paine in re (1 Hill, 665) 836 
 
 v. Boston (124^ Mass. 486) 327 
 
 V. Commrs. (Ohio Rep. 417) 667 
 
 u. Spratley (5 Kan. 525) 69, 117, 776, 
 
 778, 812, 813, 814 
 
 Painter v. Mayor (46 Pa. St. 213) 1056, 
 
 1057 
 
 V. Pittsburg (46 Pa. St. 221) 1054 
 
 V. Pittsburg (3 Am. Law Rep. 
 
 N. S. .350) 1054 
 
 Paintor ». Worcester (123 Mass. 311) 694 
 
 Palestine v. Barnes (50 Tex. 539) 388 
 
 Pallester v. Gravesend (9 C. B. 744) 146, 
 
 219 
 
 Palmer v. Andover (2 Cush. 600) 1018, 
 
 1022, 1023 
 
 V. Carroll (24 N. H. 314) 260 
 
 V. Hicks (6 Johns. 133) 209 
 
 V. Lincoln (5 Neb. 136) 1058 
 
 V. Mayor, etc. (2 Sand. 318) 256, 257 
 
 V. Portsmouth (43 N. H. 265) 1017 
 
 V. Poultney (2 Salk. 458) 377 
 
 V. Stump (29 Ind. 329) 475 
 
 Palmyra b. Morton (25 Mo. 593) 599, 610, 
 
 741, 800, 801, 815 
 
 Pangborn u. Westlake (-36 Iowa, 546) 625 
 
 Parcel v. Barnes (25 Ark. 261) 440 
 
 Paret v. Bayonne (40 N. J. L. 333) 608 
 
 Paris V. Graham (33 Mo. 94) 332 
 
 i>. People (27 111. 74) 862, 931 
 
 Parish v. Piske (8 Cush. 264) 260 
 
 V. Jacobs (25 L. T. R. (N. S.) 
 
 800) 632 
 
 Parish in Sutton v. Cole (3 Pick. 232) 207, 
 
 569 
 V. S;earns (21 Pick. 148) 314, 315 
 
 Park in re (56 N. Y. 144) 601 
 
 Park Bank v. Watson (42 N. Y. 490) 500 
 Park Commrs. v. Williams (51 111. 57) 590 
 Parker o. Commonwealth (6 Pa. St. 
 
 507) 63 
 
 V. Green (2 B. & S. 299) 428 
 
 I). Lowell (11 Gray, 353) 994,1066, 
 
 1075 
 V. Macon (39 Ga. 725) 383, 10.32, 1059. 
 
 1061 
 V. New Brunswick (30 N. J. L. 
 
 395) 124 
 
 V. Railroad Co. (7 M. & G. 253) 943 
 
 V. Williamsburg (13 How. 250) 473 
 
 Park* o. Boston (8 Pick. 218) 121, 588, 
 
 589, 598, 601, 923, 924, 926, 927 
 
 V. Newburyport (10 Gray, 28) 1068 
 
 Parmlee v. Chicago (60 111. 267) 503, 749, 
 
 796 
 Parmley i'. Railroad Cos. (3 Dillon, 
 
 25) 907 
 
 Parnaby v. Canal Co. (11 A. & E. 223) 141, 
 
 959 
 
 Parr v. Atty-Genl. (8 CI. & F. 409) 230, 
 
 432, 900, 901 
 
 17. Greenbush (72 N. Y. 463) 448 
 
 Parrott i; Bridgeport (44 Conn. 180) 821 
 
 V. Eyre (lOBing. 283) 264 
 
 Parry v. Berry (Comyns, 269) 21)1 
 
 Parsons ». Bethnal Green (17 L. T. 
 
 N. S. 211) 1075 
 
 V. Brainard (17 Wend. 522) 290 
 
 V. Goshen (11 Pick. 396) 40, 42, 451 
 u. Monmouth (70 Me. 262) 458, 482, 
 
 937 
 V. Trustees (44 Ga. 529) 638, 640, 659, 
 
 660 
 Passenger, etc. Co. v. Birmingham (51 
 
 Pa. St. 41) 711 
 
 Paston r. Urber (Hutt. 103) 270 
 
 Pat. H. R. Co. B. Patterson (24 N. J. 
 
 Eq. 1.58) 717 
 
 Patch V. Covington (17 B. Mon. 722) 982 
 V. Pendergast (15 Md. 251) 388 
 
 Paterson Gas Light Co. v. Brady (3 
 
 Dutch. 245) 692 
 
 Patrick r. Commrs. (4 McCord, 540) 585 
 Patterson v. Boom Co. (3 Dill. 465) 580, 
 
 583, 618 
 V. Bowes (4 Grant, 170) 236, 905, 909 
 V. Duluth (21 Minn. 493) 638, 060 
 V. Society (24 N. J. L. 385) 62, 63, 65, 
 75, 77, 211, 776, 777, 804 
 V. Vail (42 Iowa, 143) CBS 
 
 Patterson, etc. Co. r. Patterson (24 
 
 N. J. Eq. 158) 696 
 
 Pattison v. Supervisors (13 Cal. 175) 164 
 
 Patton V. Springfield (99 Mass. 627) 803 
 
 V. Stephens (14 Bush (Ky.), 324) 165 
 
 Paul V. Coulter (12 Minn. 41) 322 
 
 V. Detroit (32 Mich. 110) 658 
 
 V. Kenosha (22 Wis. 266) 155, 459, 
 
 938 
 V. Newark (S. C. N. J.) 622 
 
 V. Virginia (8 Wall. 177) 734, 736 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 Panlet v. Clark (9 Craneh, 292) 92 
 
 Paxson V. Sweet (16 N. J. Eq. 196) 338, 
 
 407, 795 
 
 Payne v. Brecon (3 H. & N. 579) 219, 469 
 
 u. Mayor (3 H. & N. 572) 146 
 
 V. Treadwell ( 16 Cal. 222) 649 
 
 Peabody v. Flint (6 Allen, 62) 291 
 
 Peace v. Augusta (37 Ga. 597) 788 
 
 Peachy v. Somerset (1 Str. 447) 353 
 
 Pearce v. Milwaukee (18 Wis. 32) 1002 
 
 V. Railroad Co. (21 How. (U. S.) 
 
 441) 935 
 
 PearsoU v. Post (20 Wend. Ill) 642, 645, 
 
 646 
 
 Pease v. Cornish (19 Me. 191) 41, 484, 487 
 
 V. Dayton (4 Oliio St. 80) 1037 
 
 Peay v. Little Rock (32 Ark. 31) 610, 738, 
 
 739 755 
 Peck V. Austin (22 Tex. 261) ' 388 
 
 V. Austin (2 Tex. 162) 950 
 
 V. Booth (42 Conn. 271) 286 
 
 V. Ellsworth (36 Me. 393) 1015 
 
 V. Fox Lake (28 Wis. 583) 919 
 
 V. Lockwood (5 Conn. 22) 337 
 
 V. Providence, etc. Co. (8 R. I. 
 
 353) 627 
 
 V. Sherwood (56 N. Y. 614) 744 
 
 V. Smith (1 Conn. 103) 662, 686 
 
 Pedrick v. Bailey (12 Gray, 161) 236, 331, 
 
 332, 679, 1030 
 
 Pees V. Leeds (1 Stra. 640) 862, 866 
 
 Peete v. Morgan (19 Wall. 581) 133 
 
 Pegram v. Commrs. (65 N. C. 114) 872, 
 
 877 
 V. County (64 N. C. 557) 838 
 
 Pekin v. Brereton (67 111. 477) 1000, 1008 
 V. Newell (26 111. 320) 972 
 
 )). Reynolds (31 III. 529) 488 
 
 V. Smelzell (21 111. 464) 363 
 
 Pella i;. Scholte (24 Iowa, 283) 629, 637, 
 
 668, 671 
 Pendegast v. Peru (20 111. 51) 342 
 
 Pender v. King (6 Vin. Abr. 296) 246 
 Pendlebury v. Greenhalgh (1 Q. B. D. 
 
 36) 1047 
 
 Pendleton v. Bank of Kentucky (1 
 
 Mon. 177) 206 
 
 V. Perkins (49 Mo. 565) 130 
 
 Pendleton County v. Amy (13 Wall. 
 
 297) 494, 509, 510, 524, 528, 544 
 Peninsular U. R. Co. v. Howard (20 
 
 Mich. 18) 613 
 
 Pennington o. Baehr (48 Cal. 565) 499 
 
 V. Taniere (12 Q. B. 1011) 450, 676 
 
 V. Willard (1 R. I. 93) 634 
 
 Pennoyer v. Saginaw (8 Mich. 534) 1068, 
 
 1072 
 Pennsylvania Co. v. Eathget (32 Ohio 
 
 St. 66) 1020, 1022 
 
 Pennsylvania District Election (2 Par. 
 
 526) 225 
 
 Pennsylvania Hall in re (5 Pa. St. 204) 431, 
 
 957 
 Pennsylvania R. R. Co. v. Helster (8 
 
 Pa. St. 445) 621 
 
 Pennsylvania R. R. Co. v. McCloskey 
 
 (23 Pa. St. 626) 1042 
 
 V. Philadelphia (47 Pa. St. 193) 183, 
 188, 190 
 Penny Pot Landing in re (16 Pa. St. 
 
 79) 639, 646, 669 
 
 Penobscot Boom Corp. u. Lawson (16 
 
 Me. 225) 75 
 
 Penrose v. Taniere (12 Q. B. 1011) 444 
 Pentz V. JEtna, Insurance Co. (9 Paige, 
 
 568) ■ 955. 956 
 
 People V. Adams (9 Wend. 333) 304, 317, 
 
 373 
 i;. Albany (11 Wend. 539) 141, 992 
 V. Albany (12 Johns, 414) 829 
 
 V. Albertson (55 N. Y. 50) 16, 19, 65, 
 82, 83, 237, 885 
 V. Assessors (1 Hill, 620) 42 
 
 V. Attorney-General (22 Barb. 
 
 114) 856 
 
 V. Auditors (74 N. Y. 310) 985, 1009 
 V. Auditors (75 N. Y. 317) 1009 
 
 u. Auditors (13 Mich. 233) 255 
 
 V. Auditors (41 Mich. 223) 824 
 
 V. B. & R. T. Road (23 Wend. 
 
 222) 881 
 
 V. Bacheler (13 Am. Rep. 480) 823, 
 
 934 
 0. Bacon (18 Mich. 247) 866 
 
 .,. Baker (35 Barb. 105) 854, 867 
 
 V. Bank, etc. (6 Cow. 196) 893 
 
 V. Bank, etc. (1 Douglas, 282) 117 
 V. Baraga (39 Mich. 554) 441 
 
 V. Bartlett (6 Wend. 422) 247, 293 
 V. Batchelor (63 N. Y. 128) 100, 934 
 V. Batchelor (22 N. Y. 128) 82, 299, 
 300, 301 
 V. Bearfield (35 Barb. 254) 270, 278 
 V. Bedell (2 Hill, 196) 234, 239 
 
 V. Benevolent Society (24 How. 
 
 Pr. 216) 277 
 
 i: Bennett (29 Mich. 451) 45, 58, 88, 
 
 211, 213, 885, 1071 
 
 V. Benson (30 Barb. (N. Y.) 24) 690, 
 
 693 
 V. Benzie Co. (41 Mich. 6) 166 
 
 V. Bissell (19 111. 229) 827 
 
 V. Bloomington (63 111. 207) 828, 865 
 V. Board (39 N. Y. 81) 925 
 
 V. Board of Trade (45 111. 112) 269, 
 
 270 
 V. Board, etc. (64 N. Y. 627) 841 
 
 V. Board, etc. (72 N. Y. 445) 272 
 
 V. Bond (10 Cal. 663) 94 
 
 V. Brenhara (3 Cal. 477) 225 
 
 V. Brennan (39 Barb. 522, 651) 146, 
 826, 840 
 u. Brennan (45 Barb. 457) 823 
 
 V. Briggs (50 N. Y. 653) 71, 89 
 
 u. Brighton (20 Mich. 57) 598, 600, 
 
 604 
 V. Broadway Wharf Co. (31 Cal. 
 
 33) 668 
 
 V. Brooklyn (21 Barb. 484) 795 
 
 V. Brooklyn (1 Wend. 318) 601, 821 
 
 f 
 
Ixxxii 
 
 TABLE OF CASES CITED. 
 
 People V. Brooklyn (65 N. Y. 349) 713, 
 
 1064 
 I). Brooklyn (22 Barb. 404) 825, 856 
 ». Brooklyn (4 N. Y. 419) 729, 730, 
 739, 743, 744, 748, 749, 751, 753, 
 754, 766, 803 
 V. Brooklyn (71 N. Y. 495) 797, 808 
 V. Bull (46 N. Y. 57) 82, 883 
 
 V. C. P. R. R. Co. (43 Cal. 398) 734 
 V. C. & A. R. R. Co.. (67 lU. 118) 707 
 V. Cairo (50 111. 155) 842 
 
 V. Campbell (72 N. Y. 496) 826 
 
 V. Canaday (73 N. C. 198) 16, 18, 55, 
 
 V. Canal Board (55 N. Y. 390) ' 900 
 V. Canty (55 111. 33) 234, 736, 754 
 V. Carpenter (24 N. Y. 86) 209, 211, 
 217, 291, 885, 886 
 V. Carpenter (2 Doug. (Mich.)273) 643, 
 855, 658, 700 
 o. Carrique (2 Hill, 93) 251, 252, 830 
 V. Cass Co. (77 111. 438) 191, 192, 548, 
 
 825 
 V. Cassidy (2 Lans. (N. Y.) 294) 785 
 ». Chapman (66 lU. 137) 548 
 
 V. Chicago (51 Ul. 17) 18, 96, 736, 854, 
 
 u. Cicotte (16 Mich. 283) 227, 228, 233 
 t>. Clark (70 N. Y. 518) 886 
 
 V. Clark (47 Cal. 456) 778 
 
 11. Clark County (50 111. 213) 841 
 V. Clayton (88 111. 45) 192 
 
 V. Clute (52 N. Y. 576) 885, 898 
 
 t,. Clute (50N. Y, 451) 82,224 
 
 V. Coleman (4 Cal. 46) 358, 752 
 
 V. Collins (19 Wend. 65) 817, 856, 877 
 V. Collins (3 Mich. 317) 327 
 
 ». Collins (7 Johns. 549) 824/ 
 
 0. Commissioners (59 N. Y. 40) 784 
 V. Commissioners (88 111. 142) 819 
 V. Commissioners (64 N. Y. 541) 783 
 V. Commissioners (58 N. Y. 242) 785 
 V. Commissioners (6 Wend. 559) 868 
 V. Commissioners, etc. (7 Wend. 
 
 474) 1033 
 
 V. Common Council (78 N. Y. 57) 603 
 
 c;. Common Council (77 N. Y. 503) 250, 
 
 252, 830, 831, 856 
 
 V. Common Council (28 Mich. 
 
 228) 97 
 
 V. Common Council, etc. (22 Barb. 
 
 404) 824 
 
 V. Comptroller (77 N. Y. 45) 822, 980 
 V. Comptroller (20 Wend. 595) 269, 
 
 273 
 V. Conover (17 N. Y. 64) 239 
 
 V. Conover (6 Abb. Pr. R. 220) 893 
 a. Contracting Board (33 N. Y. 
 
 382) 826 
 
 V. Contracting Board (46 Barb. 
 
 254) 826 
 
 V. Contracting Board (27 N. Y. 
 
 378) 826 
 
 K. Cook (14 Barb. 259) 225, 226, 291 
 V. Cook (8 N. Y. 67) 291 
 
 People V. Coon (25 Cal. 635) 95, 189, 471 
 V. Cooper (57 How. Pr. 416) 277 
 
 ». Cooper (6 Hill, 516) 720 
 
 V. Cornell (47 Barb. 329) 315 
 
 V. County (55 111. 33) 96 
 
 V. County (11 Cal. 170) 480 
 
 y. Court (1 Hill (N. Y), 674) 927 
 V. Court (5 Wend, (N. Y.) 114) 829 
 V. Covert (1 Hill. 674) 925, 928 
 
 V. Croton Aqueduct Board (26 
 
 Barb. 240) 467 
 
 V. Crotty (93 111. 180) 819 
 
 V. Cunningham (1 Denio, 524) 657, 722 
 
 «;. Davidson (30 Cal. 379) 136 
 
 V. Dayton (55 N. Y. 367) 101, 72!) 
 
 V. Denslow (1 Caines, 177) 654 
 
 I). Detroit (40 Mich. 64) 678 
 
 V. Detroit (28 Mich. 228) 16, 19, 29, 
 
 33, 36, 76, 81/ 82, 88, 90, 92 
 
 V. Detroit ( 18 Mich. 338, 445) 371, 406, 
 
 407, 833, 834 
 
 V. Doe (36 Cal. 220) 771 
 
 t». Draper (15 N. Y. 532) 19,65,70, 
 
 81, 82, 83, 214, 237, 291, 885 
 
 V. Dutcher (56 111. 144) 547 
 
 V. Dutchess R. R. (58 N. Y. 152) 702, 
 
 825, 828, 869, 870, 932 
 
 V. East Saginaw (40 Mich. 336) 821 
 
 V. Eddy (43 Cal. 333) 774 
 
 V. Edmunds (15 Barb. 529) 821, 822 
 
 V. Everett (1 Caines, 8) 870 
 
 V. Fairbury (51 111. 149) 225, 246, 831 
 
 V. Farnham (35 111. 562) 
 V. Ferris (16 Hun, 219) 
 V. Fields (58 N. Y. 491) 
 
 111, 
 
 212 
 880 
 85, 89, 1'3, 
 904, 906 
 868 
 228 
 
 u. Finger (24 Barb. 341) 
 V. Fitzgerald (41 Mich. 2) 
 V. Flagg (17 N. Y. 584) 460, 463, 485, 
 678, 840 
 o. Flagg (46 N. Y. 401) 100 
 
 V. Flanagan (66 N. Y. 237) 226, 883 
 V. Fletcher (3 111. 487) 833 
 
 V. Fort Edward (70 N. Y. 28) 184 
 V. Fort Street Ry. (41 Mich. 413) 713 
 V. Fulton Co. (14 Barb. 56) 455 
 
 V. Galesburg (48 111. 485) 882 
 
 V. Gilbert (l8 Johns. (N. Y.) 227) 667 
 V. Goodwin (5 N. Y. 568) 797 
 
 V. Governor (29 Mich. 320) 827 
 
 V. Gray (23 Cal. 125) 481 
 
 V. Green (64 N. Y. 606) 998 
 
 V. Green (58 N. Y. 304) 252 
 
 V. Hall (21 Alb. L. J. 484) 880, 881 
 V. Halsey (53 Barb. 547) 856 
 
 V. Harper (91 111. 357) 24 
 
 V. Harper (67 111. 62) 192 
 
 V. Harris (4 Cal. 9) 166 
 
 V. Hartwell ( 12 Mich. 508) 890, 892 
 V. Hatch (33 111. 9) 855 
 
 V. Hawley (3 Mich. 330) 168 
 
 V. Hayden (6 Hill (N. Y.),359) 608, 609 
 B. Hayt (66 N. Y. 606) 855, 861 
 
 V. Head (25 111. 825) 834, 837 
 
 V. Higgins (3 Mich. 233) 225 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 People V. Higgins (15 HI. 110) 270 
 
 V. Hill (7 Cal. 97) 76, 86, 239 
 
 V. Hillliouse (1 Lans. 87) 925 
 
 V. Hilliard (29 111. 418) 834, 837, 854, 
 
 862 
 V. Hillsdale, etc. Co. (2 Johns. 
 
 190) 888 
 
 V. Holden (91 111. 446) 192 
 
 .,. Holden (28 Cal. 123) 882 
 
 I). Holmes (2 Wend. 281) 242 
 
 u. Hopson (1 Denio, 574) 293 
 
 V. Hurlbut (24 Mioh. 44) 16, 27, 29, 
 
 65, 71, 81, 82, 89, 90, 92, 168, 237, 
 
 731 
 
 I). Ingersoll (58 N. Y. 1) 85, 89, 93, 902, 
 
 904, 906 
 
 V. Insurance Co. (2 Johns. Ch. 
 
 371) 291 
 
 V. Insurance Co. (15 Johns. 358) 291 
 V. Jackson (8 Mich. 110) 368, 371 
 V. Jackson (T Mich. 432) 631, 655 
 V. Jackson Co. (92 111. 444) 192, 843 
 V. Jolinson (30 Cal. 98) 345, 407 
 
 ... Johr(22 .Mich. 461) 243 
 
 V. Jones (6 JUich. 176) 626, 640 
 
 V. Judge, etc. (111. Supreme Ct. 
 
 etc ) 613, 614 
 
 V. Justices (74 N. Y. 406) 424, 425 
 V. Keeling (4 Col. 127) 225 
 
 ». Kelly (5 Abb. N. Cas. 383) 101, 850 
 V. Kelsey (34 Cal. 470) 731 
 
 V. Kerr (27 N. Y. 188) 95, 632, 664, 
 696, 697, 711, 716, 717. 
 0. Kilduff (15 lU. 492) 229, 834, 835, 
 
 837 
 I/. Kimball (4 Mich. 95) 615 
 
 V. Kingman (24 N. Y. 545) 631 
 
 V. Kip (4 Cow. (N. Y.) 383) 833 
 
 1). Klopke (92 111. 134) 481 
 
 V. Klumpke (41 Cal. 263) 639 
 
 V. Knight (13 Mich. 424) 225 
 
 V. Kniskeen (54 N. Y. 52) 597 
 
 V. Lambier (S Denio, 9) 633, 638 
 
 V. La Salle Co. (84 111 303) 829 
 
 V. Law (-34 Barb. 494) 697 
 
 V. Lawrence (6 Hill, 244) 174, 8.50 
 V. Lewis (7 Johns. 73) 260 
 
 V. Lieb (85 111. 481) 819 
 
 V. Logan County (63 III. 384) 191 
 V. Logan County (45 III. 139) 547 
 b. Loorais (8 Wend. 396) 227, 892, 
 
 893 
 V. Love (19 Cal. 676) 206 
 
 V. Lowber (7 Abb. Pr. 158) 904 
 
 V. Lowber (28 Barb. 65) 386 
 
 V. Lynch (51 Cal. 15) 18, 81, 102, 104, 
 
 752 
 r. Mahaney (13 Mich 481) 70, 71, 81, 
 83, 228, 25.'? 
 V. Marsh (2 Cow. 485) 823 
 
 u. Martin (5 N. Y. 22) 288, 289, 301 
 ... Mathewson (47 Cal. 442) 225 
 
 V. Matteson (17 111. 167) 226, 833, 834 
 V. Mauran (5 Denio, 389) 562 
 
 V. Maynard (15 Mich. 463) 111, 910 
 
 People V. Mayor (2 Hill (N. Y.), 9) 431, 
 604, 924, 925, 927 
 V. Mayor (4 N. Y. 419) 101, 610, 611, 
 775, 803 
 V. Mayor (10 Wend. 393) 820, 821 
 V. Mayor, etc. (25 Wend. 680) 821, 822 
 0. Mayor, etc. (9 Wend. 608) 822 
 V. Mayor, etc. (32 Barb. 102) 904 
 V. Mayor, etc. (10 Abb. Pr. 144) 904 
 w. Mayor, etc. (9 Abb. Pr. 253) 904 
 V. Mayor, etc. (63 N. Y. 291) 600 
 V. Mayor, etc. (5 Barb. 43) 240, 476 
 V. Mayor, etc. (6 Barb. 209) 803 
 
 V. Mayor, etc. (8 Barb. 95) 476 
 
 V. Mayor, etc. (23 Barb. 390) 476 
 V. McClintock (45 Cal. 11) 174, 558 
 V. McCreery (34 Cal. 432) 728, 752, 
 772, 774 
 c. McDonald (69 N. Y. 362) 18, 83,808 
 I.. McKinney (10 Mich. 54) 261 
 
 V. McKinney (52 N. Y 374) 82, 241 
 V. McNally (49 Cal. 478) 63 
 
 V. McRoberts (62 111. 88) 614, 1008 
 ». Mead (24 N. Y. 114) 180, 485, 501 
 V. Mead (36 N. Y. 224) 516, 523, 525, 
 547, 551 
 V. Medical Society (24 Barb. 570) 269 
 ». Mellen (32111. 181) 71 
 
 V. Metropolitan Police Board ( 19 
 
 N. Y. 188) 223, 237 
 
 V. Metropolitan Police Board (26 
 
 N. Y. 316) 836, 868 
 
 V. Metzker (47 Cal. 524) 229 
 
 V. Miller (24 Mich. 458) 259 
 
 «. Miner (2 I/ans. 396) 904 
 
 V. Mitchell (35 N. Y. 561) 179, 188, 
 
 540 
 V. Morrell (21 Wend. 563) 65, 217, 253 
 V. Morris (13 Wend. 325) 5, 26, 27, 62, 
 75,76,84,88, HI 
 V. Morse (43 Cal. 634) 95 
 
 w. Mott(lHow. (N. Y.)247) 315,316 
 V. Murray (15 Cal. 321) 221 
 
 V. Murray (73 N. Y. 535) 893 
 
 V. Nearing (27 N. Y. 306) 692 
 
 V. Nevada (6 Cal. 143) 211 
 
 V. New York (7 How. Pr. E. 81) 408 
 V. New York (3 Johns. Cas. 79) 834, 
 
 883 
 V. Niles (35 Cal. 282) 783 
 
 II. North (72 N. Y. 124) 231 
 
 V. Nostrand (46 N. Y. 376) 252, 293, 
 
 830 
 V. Nyland (41 Cal. 129) 418 
 
 V. Oakland Bank (1 Doug. (Mich.) 
 
 285) 892 
 
 V. Ogdensburgh (48 N. Y. 390) 783, 
 788, 925 
 .,. Oldtown f88 111. 202) 191, 192 
 
 V. Onondaga (16 Mich. 254) 101 
 
 V. Pacheco (29 Cal. 210) 857 
 
 V. Palmer (52 N. Y. 83) 82, 128, 297 
 W.Pearson (4111.271) 869 
 
 V. Pease (27 N. Y. 81) 233 
 
 V. Phillips (1 Denio, 388) 222 
 
Ixxxiv 
 
 TABLE OF CASES CITED. 
 
 People V. Police Board (26 N. Y. 816) 250 
 
 ~ ■■ - ■ 925 
 
 432 
 251 
 109 
 85 
 855 
 110 
 V. Prison, Inspectors (4 Mich. 187) 856 
 
 , Police Board (39 N. Y. 506) 
 V. Police Justice (T Mich. 456) 
 V. Porter (6 Cal. 26) 
 V. Potter (35 Cal. 110) 
 V. Power (25 III. 187) 
 0. Pratt (30 Cal. 223) 
 V. President (9 Wend. 351) 62, 
 
 V. Pueblo Co. (2 Col. 360) 
 V. Railroad Co. (5 Lans. 25) 
 V. Railroad Co. (38 Cal. 564) 
 V. Railroad Co. (45 Barb. 73) 
 V. Railroad Co. (12 Mich. 387) 
 V. Railroad Co. (15 Wend. 114) 
 
 I'. Railroad Co. (35 Cal. 606) 
 V. Railroad Co. (88 111. 573) 
 V. Ransom (2 N. Y. 490) 
 V. Rector (48 Barb. 603) 
 V. Reynolds (10 111. 1) 
 V. Richardson (4 Cow. 100) 
 
 189 
 904 
 905 
 711 
 117 
 719, 
 887 
 752 
 
 821, 854 
 
 290 
 
 62 
 
 879, 883, 
 
 887, 893 
 
 797, 927 
 
 71 
 
 301, 808 
 
 207, 246, 
 
 V. Rochester (21 Barb. 656) 
 V. Rochester (50 N. Y. 525) 
 V. Rochester (5 Lans. 142) 
 II. Runkle (9 Johns. 147) 
 
 246, 247, 293 
 V. Salem (20 Mich. 452) 183, 187, 497 
 V. Salomon (51 111. 37) 62, 69, 96, 488, 
 736, 771, 819, 820, 82T 
 V. Salomon (46 111. 415) 819, 820, 831 
 V. San Francisco (27 Cal. 655) 341, 
 445, 867 
 V. San Francisco (36 Cal. 594) 856 
 V. Santa Anna (67 111. 57) 
 V. Sargent (8 Cow. 139) 
 V. School Trustees (86 111. 613) 
 V. Schuyler (79 N. Y. 189) 
 V. Scrugham (20 Barb. 802) 
 V. Seaman (5 Denio, 409) 
 V. Seymour (16 Cal. 332) 
 V. Seymour (6 Cow. 579) 
 V. Shearer (30 Cal. 645) 
 V. Shepherd (36 N. Y. 285) 
 V. Slaughter (2 Doug. 834) 
 
 225 
 
 380 
 
 217 
 
 857 
 
 834, 835 
 
 227, 883 
 
 810 
 
 857, 868 
 
 771 
 
 82,83 
 
 422, 425, 
 
 429 
 
 547, 925 
 
 594, 596 
 
 189 
 
 468 
 
 a. Smith (45 N. Y. 772) 
 V. Smith (21 N. Y. 595) 
 V. Spencer (55 N. Y. 1) 
 V. Stephens (71 N. Y. 527) 
 V. Stevens (5 Hill, 616) 226, 247, 293, 
 821, 833, 835, 836 
 u. Stilwell (19 N, Y. 531) 604 
 
 u. St. Louis (10111.372) 383 
 
 V. Stout (23 Barb. 338) 62, 471, 822, 
 
 V. Sturtevant (9 N. Y. 263) 
 
 V. Supervisors (67 111. 67) 
 
 V. Supervisors (84 III. 303) 
 
 V. Supervisors (16 Johns. 69) 
 
 V. Supervisors (43 N. Y. 10) 
 
 t>. Supervisors ( 12 Johns. 414) 825, 849 
 
 V. Supervisors (34 N. Y. 516) 166 
 
 V. Supervisors (32 N. Y. 478) 822 
 
 910 
 823 
 192 
 825 
 823 
 71 
 
 People V. Supervisors (50 Cal. 561) 85 
 V. Supervisors (70 N. Y. 228) 102 
 V. Supervisors (64 N. Y. 600) 869 
 V. Supervisors (28 N. Y. 112) 868, 872 
 V. Supervisors (16 Midi. 254) 165 
 V. Supervisors (1 Hill, 195) 924 
 
 o. Supervisors (1 Hill, 362) 254, 257, 
 452, 822, 825 
 V. Supervisors (1 Hill, 50) 720, 826, 
 
 828 
 V. Supervisors (12 Wend. 257) 257 
 V. Supervisors (15 Wend. 198) 924 
 V. Supervisors (27 Cal. 655) 471, 526, 
 , 548, 854 
 
 V. Supervisors (20 Mich. 95) 665 
 
 «. Supervisors (10 Wend. 363) 819, 
 821 823 
 V. Supervisors (8 N. Y. 317) 819^ 849 
 V. Supervisors (11 N. Y. 663) 821, 840 
 V. Supervisors (12 Barb. 446) 855 
 V. Supervisors (15 Barb. 607) 865 
 V. Sweeting (2 Johns. 184) 883, 892 
 V. Swift (31 Cal. 26) 460 
 
 V. Syracuse (63 N. Y. 291) 128, 297 
 B.Tazwell County (22 111. 147) 191, 
 488, 547 
 1). Thacher (55 N. Y. 525) 231, 233, 
 
 883 
 V. Thompson (25 Barb. 73) 822 
 
 V. Thompson (18 "Wend. 655) 879, 892 
 V. Throop (12 Wend. 183) 331 
 
 V. Thurber (13 III. 557) 356, 357 
 
 V. Tieman (8 Abb. Pr. 359) 247 
 
 V. Tieman (30 Barb. 193) 247, 259 
 V. Tracy (1 Denio, 617) 856 
 
 V. Treasurer (4 Mich. 27) 858 
 
 V. Trustees (86 III. 618) 819 
 
 V. Turner (10 Am. Law Eeg. N. 
 
 S. 366) 399 
 
 V. University Regents (4 Mich. 
 
 98) 856 
 
 V. Utica Ins. Co. (15 Johns. 358) 879, 
 
 880 
 V. Vail (20 Wend. 12) 836, 883 
 
 V. Vanderbilt (26 N. Y. 287) 91, 136, 
 
 669 
 
 . Vanderbilt (28 N. Y. 396) 136, 382' 
 . Vanderbilt (26 N. Y. 872) 656 
 
 . Van Slyck (4 Cow. 297) 883, 893 
 . Waite (70 111. 25) 889 
 
 . Walker (9 Mich. 328) 315, 316 
 . Wall (49 Cal. 478) 63 
 
 . Warfield (20 111. 163) 64 
 
 . Warren (5 Hill, 440) 264 
 
 . Wayne Co. (41 Mich. 4) 255 
 
 . Waynesville (88 III. 469) 192, 538, 
 
 549 
 . Weant (48 El. 263) 64, 827 
 
 . Webber (89 III. 347) 116, 234, 443 
 . Webber (86 III. 283 1 884 
 
 . Weisenbach (60 N. Y. 385) 399 
 . Wetherell(14Mich. 48) 229,231, 
 247, 891 
 . Wharf Co. (31 Cal. 34) 137 
 
 . Whipple (41 Mich. 548) 819 
 
TABLE OF CASES CITED. 
 
 Ixxxv 
 
 People V. Whitoonrt (55 HI. 172) 888 
 V. White (24 Wend. 520) 293 
 
 V. White (54 Barb. 622) 823 
 
 V. Whyler (41 Cal. 351) 752, 774 
 
 V. WiHsea (60 N. Y. 507) 71 
 
 V. Wilson (15 III. 389) 417, 419 
 
 V. Winnehammer (12 How. Pr. 
 
 260) 954 
 
 V. Wood (7 Cal. 579) 94 
 
 V. Wood (4 Park. Cr. 144) 262 
 
 V. Works (7 Wend. 486) 855 
 
 V. Wren (5 HI. 269) 62, 76, 194, 195 
 II. Yates (40 111. 126) 861 
 
 People's Railroad v. Memphis Rail- 
 road (10 Wall. 88) 126, 444, 699, 
 708 
 Peoria v. Calhoun (29 111. 817) 837, 339 
 V. Gordon (82 III. 45) 842 
 
 V. Johnson (56 111. 45) 630, 637, 656, 
 678, 898 
 I). Kidder (26 lU. 351) 610 
 
 Peoria, etc. Railroad Co. v. Logan Co. 
 
 (63 Ul. 874) 
 Peoria Bridge Assoc, v, Loomis (20 
 
 111. 235) 1023 
 
 Perdue v. Corporation of Chingua- 
 
 cousy (25U. C. Q. B. 61) 935, 
 
 986, 1069, 1071, 1073, 1074 
 
 V. Ellis (18 Ga. 586) 322, 332, 363, 365 
 
 Perin v. Carey (24 How. 465) 557, 561, 
 
 562, 564, 566, 568 
 
 V. Railroad Co. (36 N. Y. 120) 639, 646 
 
 Perkin v. Brereton (67 111. 477) 705, 1071 
 
 V. Winkel (77 lU. 56) 704, 1071 
 
 Pekins v. Corbin (45 Ala. 103) 417 
 
 V. Fayette (68 Me. 152) 1022, 1023, 
 
 • 1025, 1028, 1036, 1052 
 
 V. Insurance Co. (4 Cow. 645) 455 
 
 V. Milford (59 Me. 315) 727 
 
 V. Railroad Co. (44 N. H. 223) 262, 
 
 1028 
 V. Weston (3 Cush. 549) 814 
 
 Perkinson v. St. Louis (4 Mo. App. 
 
 822) 476 
 
 Perley v. Chandler (6 Mass. 454) 632 
 
 ». Georgetown (7 Gray, 464) 970, 976, 
 
 976 
 Perrine v. Farr (22 N. J. L. 356) i;6, 443, 
 
 799 
 
 Perry v. Dover (12 Pick. 206) 286 
 
 V. Kinnear (42 III. 160) 911 
 
 V. New Orleans (55 Ala. 413) 628, 631, 
 
 632, 636, 652, 653, 662, 663, 697 
 
 V. Ontario (23 U. C. Q. B. 391) 459 
 
 V. Superior City (23 Wis. 64) 451 
 
 V. Torrence (8 Ohio, 522) 785 
 
 V. Tyner (22 Barb. 137) 298 
 
 V. Worcester (6 Gray, 544) 994, 995, 
 
 1066, 1078 
 
 Perryman v. Greenville (51 Ala. 510) 109 
 
 Peru V. French (55 111. 317) 1037, 1041 
 
 Peruvian, etc. Co. v. Thanes, etc. Co. 
 
 (L. R. 2 Ch. 617) 152 
 
 Pesterfield v. Vickers (8 Coldw. 205) 238, 
 
 832, 981 
 
 Peterboroiigh v. Lancaster (14 N. H, 
 
 882) 287 
 
 Peters v. London (2 U. C. Q. B. 543) 844 
 V. State (9 Ga. 109) 963 
 
 Petersburgh v. Applegarth (28 Gratt. 
 
 321) 878, 968, 969 
 
 V. Mappin (14 III. 193) 471 
 
 V. Metzker (21 111. 205) 117, 346, 368 
 
 Peterson v. Mayor (17 N. Y. 449) 166, 386, 
 
 455, 461, 463, 557 
 
 Petrie v. Doe (30 Miss. 698) 298 
 
 Pettigrew v. Evansville (25 Wis. 223) 996, 
 
 1049, 1068, 1069, 1071, 1074 
 
 V. Evansville (3 Am. Rep. 50) 1069 
 
 Pettis V. Johnson (56 Ind. 139) 658 
 
 Petty V. Tooker (21 N. Y. 267) 222 
 
 Peyserw. Mayor (70 N. Y. 497) 941,946 
 
 Peyton v. Hospital (3 C. & P. 363) 318 
 
 Pfau V. Reynolds (53 111. 212) 1046, 1058 
 
 Phebe, The (1 Ware, R. 360) 137 
 
 Phelps V. Bank (13 Wis. 432) 538 
 
 V. Mankato (23 Minn. 277) 1026 
 
 Philadelphia v. Board, etc. (29 Leg. 
 
 Int. 63) 726 
 
 V. Collector (5 Wall. 730) 948 
 
 ». Collins (68 Pa. St. 106) 991 
 
 V. Cooke (30 Pa. St. 56) 815, 942 
 
 V. Dickinson (38 Pa. St. 247) 608 
 V. Dyer (41 Pa. St. 463) 608 
 
 V. Eastwick (35 Pa. St. 75) 743 
 
 V. Field (58 Pa. St. 320) 76, 88, 96, 
 100, 101, 729, 765 
 V. Flanigan (47 Pa. St. 21) 19, 21, 
 161, 451 
 V. Fox (64 Pa. St. 169) 77, 87, 106, 
 
 562 
 b. Germantown Railroad Co. (10 
 
 Pa. 165) 590 
 
 V. Given (60 Pa. St. 136) 268, 259 
 V. Greble (38 Pa. St. 339) 814 
 
 V. Miller (49 Pa. St. 40) 800 
 
 V. Raih-oad Co. (3 Grant, 403) 699, 
 
 711 
 
 V. Railroad Co. (83 Pa. St. 41) 743, 
 
 745, 749 
 
 V. Railroad Co. (58 Pa. St. 253) 570, 
 
 667, 669, 678, 700 
 
 V. Railroad Co. (6 Whart. (Pa.) 
 
 26) 649, 696 
 
 i>. Tryon (36 Pa. St. 401) 687, 742, 
 
 744, 745, 804 
 
 V. Wistar (35 Pa. St. 427) 815 
 
 Philadelphia Assoc, v. Wood (39 Pa. 
 
 St. 73) 791 
 
 Phillips in re (60 N. Y. 16) 324, 341, 794 
 
 V. Albany (28 Wis. 340) 180 
 
 V. Allen (41 Pa. St. 481) 349, 352, 393, 
 
 401 
 V. Bloomington (1 Greene (Iowa), 
 
 498) 143 
 
 V. Bowers (7 Gray (Mass.), 21) 684 
 V. Coffee (17 111. 154) 218 
 
 V. Commonwealth (44 Pa. St. 197) 930 
 ». Jefferson Co. (6 Kan. 412) 942 
 V. Mayor, etc. 1 Hilt. 483) 253 
 
Ixxxvi 
 
 TABLE OF CASES CITED. 
 
 Phillips in re v. Tecumseh (5 Neb. 305) 363 
 V. Veazie (40 Me. 96) 1063 
 
 V. Wickham (1 Paige, 590) 195, 247, 
 
 332 
 Phinizey v. Augusta (47 Ga. 260) 10B6 
 Physicians v. Salman (3 Salk. 102) 204 
 Piatt 11. People (29 III. 54) 226 
 
 Pickering v. Shotwell (10 Pa. St. 27) 562 
 Pickett V. Hastings (47 Cal. 269) 647 
 
 V. School District (25 Wis. 551) 305 
 Pickhard v. Smith (10 C. B. N. S. 
 
 470) 1028 
 
 Piemental v. San Francisco (21 Cal. 
 
 351) 295, 305, 444, 456, 463, 574, 
 
 938 
 
 Pierce v. Bartram (Cowp. 270) 854, 384, 
 
 388 
 V. Boston (3 Met. 520) 810 
 
 V. Cambridge (2 Gush. 611) 774 
 
 ». Carpenter (10 Vt. 480) 209, 217 
 V. Emery (32 N. H. 484) 788 
 
 V. Richardson (37 N. H. 306) 261, 307, 
 308, 552 
 V. Somerworth (10 N. H. 369) 206 
 Pieri v. Shieldsburo (42 Miss. 493) 378, 
 
 898 
 Pierpont v. Harrisonville (9 W. Va. 
 
 215) 629, 630 
 
 Pike V. Megam (44 Mo. 491) 327 
 
 V. Middletown (12 N. H. 278) 41, 174, 
 
 175 
 ». Railroad Co. (94 U. S. 164) 73 
 Pike County v. State (11 111. 202) 856 
 Pilie V. New Orleans (19 La. An. 273) 257 
 Pillsbury ». Brown (47 Cal. 478) 421 
 
 V. Springfield (16 N. H. 565) 601 
 
 Pim V. Ontario (9 U. C. C. P. 304) 459 
 Pine Grove, etc. i^. Talcott (19 Wall. 
 
 666) 491, 501 
 
 Piper V. Chappell (14 M. & W. 624) 344, 
 
 347, 403, 410 
 
 V. Singer (4 S. & R. 354) 732, 771 
 
 Pitts V. Bonner (7 Ga. 449) 883 
 
 Pittsburg & Connelsville Railroad Co. 
 
 (63 Pa. St. 126) 530 
 
 Pittsburg, etc. Railroad Co. v. Alle- 
 ghany Co. (C. L. J. 204) 5.30 
 Pittsburg V. Craft (1 Pitts. 158) 206 
 
 V. Grier (22 Pa. St. 54) 34, 141, 987 
 V. Scott (1 Pa. St. 309) 656 
 
 V. Walter (69 Pa. St. 365) 797 
 
 V. Wood (44 Pa. St. 113) 744 
 
 Pittsburg, etc. v. Pittsburg (80 Pa. 
 
 St. 72) 1038 
 
 Pittson V. Clark (15 Me. 460) 41 
 
 Pittston V. Hart (89 Pa. St. 389) 1018, 
 
 1019 
 Pitzman «. Freeburg (92 111. Ill) 188 
 Place V. Providence (12 R. I. 1) 901, 911, 
 
 912 916 
 
 Placerville v. Wilcox (35 Cal. 21) ' 781 
 
 Plank-road Co. v. Husted (3 Ohio, 578) 126 
 
 V. Ramage (20 Pa. St. 95) ' 661 
 
 V. Rineman (20 Pa. St. 99) 661 
 
 V. Thomas (20 Pa. St. 91) 661 
 
 Plant V. Railroad Co. (10 Barb. 26) 703 
 Plaquemines Parish v. Foulhouze (30 
 
 La. An. 64) 570, 573, 632, 671 
 Piatt V. Rice (10 Watts (Pa.), 352) 773 
 PlatteviUe v. Bell (43 Wis. 488) 398 
 
 Player v. Jenkins (1 Sid. 284) 384 
 
 Plimpton V. Somerset (33 Vt. 283) 90, 406, 
 
 425 
 Plum V. Canal Co. (2 Stoekt. 256) 683, 
 
 999 
 Plunkett ». Crawford (27 Pa. St. 107) 214 
 Plymouth v. Jackson (15 Pa. St. 44) 76, 
 
 106, 215 
 
 V. Painter (17 Conn. 585) 247 
 
 V. Pettijohn (4 Dev. Law, 591) 354, 
 
 355,735 
 
 Police Commissioners v. Louisville 
 
 (3 Bush, 697) 81, 83, 237 
 
 Police Jury v. Britton (15 Wall. 672) 154, 
 
 155, 190, 443, 452, 483, 489 
 
 V. Michel (4 La. An. 84) 129 
 
 V. Shreveport (5 La. An. 661) 79, 90 
 
 V. Succession of Donough (8 La. 
 
 An. 341) • 179 
 
 V. Villaviabo (12 La. An. 788) 355 
 Pollack V. San Francisco Orphan 
 
 Asylum (48 Cal. 490) 665, 666 
 Pollard V. Hagan (2 How. 212) 133, 136 
 V. Woburn (104 Mass. 84) 1040 
 
 Pollock V. Laurence Countv (7 Pitts. 
 
 Legal Jour. 373) 842, 844, 867 
 V. Louisville (13 Bush, 221) 979, 980, 
 
 981 
 Pomeroy v. Mills (2 Vt. 279) 632, 635, 643, 
 
 662 
 ». Railroad Co. (16 Wis. 640) 697, 715 
 Pomeroy Salt Co. o. Davis (21 Ohio* 
 
 St. 555) 783 
 
 Pompton V. Cooper Union (101 U. S. 
 
 196) 105, 510 
 
 Pond V. Negus (3 Mass. 230) 327 
 
 !). Parrott (42 Conn. 13) 824, 827 
 
 Pontiac ». Carter (32 Mich. 164) 684, 968, 
 
 992, 995, 998, 1003 
 
 Pool ». Boston (5 Cush. 219) 166, 258 
 
 Poole V. Bentley (12 East, 168) 676 
 
 V. Huskinson (11 M. & W. 827) 627 
 
 Pope u. Commrs. 12 Rich.(S. C.) Law, 
 
 407) 677 
 
 V. Headen (5 Ala. 433) 813 
 
 V. Union (18 N. J. Eq. 282) 638, 640 
 
 Poppen V. Holmes (44 III. 362) 351, 352 
 
 Port V. Russell (36 Ind. 60) 437 
 
 Porter w. Blakely (1 Root, 440) 208 
 
 w. Ins. Co. (76 "111. 361) 788 
 
 V. R. R. Co. (33 Mo. 128) 696, 699. 
 
 703, 705 
 
 i>. Railroad Co. (77 111. 561) 907 
 
 I). Railroad Co. (87 Me. 349) 218 
 
 Port Gibson v. Moore (21 Miss. 157) 200 
 
 Port Whitby, etc. R. R. Co. v. Whitby 
 
 (18U. C. Q. B. 40) 661 
 
 Portland v. Bangor (65 Me. 120) 399, 425 
 
 V. Lee Sam (7 Oreg. 397) 622 
 
 0. O'Neill (1 Oreg. 218) 357, 789 
 
TABLE OF CASES CITED. 
 
 Ixxxvii 
 
 Portland ». Richardson (54 Me. 46) 1061, 
 
 1062, 1063 
 
 V. Water Co. (67 Me. 135) 786 
 
 V. Whittle (3 Oreg. 126) 638, 646 
 
 Port Wardens v. Pratt (10 Rob. (La.) 
 
 459) 1.33 
 
 V. Ship (14 La. An. 289) 133 
 
 Portsmouth, etc. Co. v. Watson (10 
 
 Mass. 91 ) 109 
 
 Posey V. Mobile (50 Ala. 6) 473 
 
 Post V. Pearsall (22 Wend. 425) 629, 645 
 Postmaster-General a. Rice (Gilpin, 
 
 554) ■ 242 
 
 Pottawatamie Co. v. Sullivan (17 ICan. 
 
 58) 621 
 
 Potter V. Luther (6 Johns. 431) 261 
 
 V. Menasha (.30 Wis. 492) 380, 659 
 Potts V. Henderson (2 Iiid. 327) 264 
 
 Pottsville V. Curry (32 Pa. St. 443) 928 
 Poulters Co. v. PhilUps (6 Bing. 314) 338, 
 
 412 
 Poultney v. Wells (1 Aik. 180) 97, 106, 
 
 455 
 
 Pound V. Chippewa (43 Wis. 63) 767 
 
 Pow II. Becker (3 Ind. 475) 239 
 
 Powel V. Madison (21 Ind. 335) 784 
 
 0. Madison (18 Ind. 33) 784 
 
 V. St. Joseph (31 Mo. 347) 794 
 
 Powers in re (25 Vt. 261) 430 
 
 V. Council Bluffs (45 Iowa, 652) 673 
 
 V. Council Bluffs (50 Iowa, 197) 979, 
 
 1049, 1055, 1066 
 
 V. Sanford (39 Me. 183) 941 
 
 V. Superior Court (23 Ga. 65) 179 
 
 V. Wood County (8 Ohio, 285) 213 
 
 Poweshiek County v. Ross (9 Iowa, 
 
 511) 314 
 
 Powles V. Page (3 Com. B. 31) 318 
 
 Prather v. Lexington (13 B. Mon. 559) 957, 
 
 980 
 
 V. New Orleans (24 La. An. 41) 436 
 
 Pratt V. Hilman (4 B. & C. 269) 178 
 
 V. State (5 Conn. .388) 209 
 
 V. Swanton (15 Vt. 147) 286, 287, 461 
 
 Fray v. Jersey City (32 N. J. L. 394) 958, 
 
 1009, 1015, 1038 
 
 V. Northern Liberties (31 Pa. St. 
 
 69) 491, 776 
 
 Preachers' Aid Soc. in re (45 Me. 552) 208 
 
 Preble v. Portland (45 Mo. 241) 302, 303, 
 
 604 
 Piell V. McDonald (7 Kan. 426) 109, 235, 
 236, 238, 342, 410 
 Presbyterian Church v. Mayor (5 
 
 Cow. 538) 12.5, 327, 374, 775 
 
 Prescott V. Duquesne (48 Pa. St. 118) 141, 
 
 818 
 V. Gonser (34 Iowa, 175) 219, 824, 855 
 President v. Desouchett (2 Ind. 587) 1040 
 0. Holland (19 111. 271) 407 
 
 V. Indianapolis (12 Ind. 620) 672, 634, 
 645, 647 
 V. Myers (6 S. & R. 12) 207 
 
 V. O'Malley (18 111. 407) 307, 342 
 V. Thomson (20 lU. 197) 195 
 
 Preston v. Bacon (4 Conn. 471) 257 
 
 V. Boston ( 12 Pick. 7) 941, 942, 948 
 V. Hall (23 Gratt. 600) 553 
 
 V. Nevastota (34 Tex. 684) 638 
 
 Prettyman v. Supervisors (19 111. 406) 179 
 V. Tazwell Co. (19 111. 406) 157, 164 
 
 Price V. Baker (41 Ind. 572) 224 
 
 V. Baker (13 Am. Kep. 346) 224 
 
 V. Church (4 Ohio, 514) 650 
 
 V. Commissioners (1 Whart. 1) 840 
 V. Harned (1 Iowa, 473) 861 
 
 a. Plainfield (40 N. J. L. 608) 642 
 ... Thomson (48 Mo. 363) 626, 642, 
 646, 647, 650, 660 
 V. Railroad Co. (13 Ind. 58) 305 
 
 Prideaux v. Mineral Point (43 Wis. 
 
 513) 1026, 1041, 1051 
 Priestly K.Foulds (2 Scott (N. R.),205) 194 
 Prigden v. Bannerman (8 Jones ( N. C), 
 
 53) 604 
 
 Primm v. Belleville (59 lU. 142) 732, 7-36, 
 
 754, 781, 782 
 
 V. Carondelet (23 Mo. 22) 272 
 
 Princeton v. Gebhart (61 Ind. 187) 31 
 
 V. Vierling (40 Ind. 340) 941, 942 
 
 PrinoevUle v. Auten (77 111. 325) 635, 642, 
 
 645 
 Prindle v. Fletcher (39 Vt. 255) 1017, 1025, 
 
 1052 
 
 Pringleinre (lOU. C. Q. B. 254) 254 
 
 Pritchard o. Keefer (63 III. 117) 264 
 
 V. People (6 111. 529) 293 
 
 V. Stevens (6 D. & E. 522) 177 
 
 Fritz in re (9 Iowa, 30) 68 
 
 Proctor V. Lewiston (25 111, 153) 627 
 
 Proprietors v. Horton (6 Hill, 501) 62, 110 
 
 V. LoweU (7 Gray, 223) 994, 1076, 
 
 1078 
 
 V. Slack (7 Cush. 226) 314, 315 
 
 Frosser v. Ottumwa (47 Iowa, 509) 1039, 
 
 1041 
 Protzman v. Railroad Co. (9 Ind. 468) 664, 
 697, 704, 705, 706, 709, 716 
 Providence Bank v. Billings (4 Pet. 
 
 514) 773 
 Providence v. Clapp (17 How. 161) 1013, 
 
 1020, 1034, 1036 
 V. Ins. Co. (12 R. I. 435) 788 
 
 K. Miller (11 R. L 272) 449,450 
 
 Providence, etc. v. Thurber (2 R. I. 
 
 15) 786 
 
 Pruyn v. Milwaukee (18 Wis. 367) 487 
 Pryor v. Pryor (26 L. T. N. S. 758) 627 
 Public Schools in re (N. Y. App. 1872) 806 
 V. Taylor (30 N. J. Eq. 618) 114 
 
 Puffer V. Orange (122 Mass. 389) 1018 
 Pulaski Co. «. Lincoln (9 Ark. 320) 298, 
 
 486 
 Pullen V. Commissioners (66 N. C. 361) 727 
 Pumpelly v. Green Bay Co. (13 Wall. 
 
 166) 996, 1002, 1005, 1007, 1071, 
 
 1072, 1074 
 
 Pumphrey v. Baltimore (47 Md. 145) 100 
 
 601, 828, 856 
 
 Purdy V. People (4 Hill, 385) 68, 76 
 
Ixxxviil 
 
 TABLE OF CASES CITED. 
 
 Queen 
 
 V, 
 
 Pursley v. Hays (17 Iowa, 310) 587 
 
 Putnam v. Douglas Co. (6 Oreg. 318) 1008 
 V. Johnson (10 Mass. 488) 223 
 
 Putnam County v. Allen County (1 
 
 Ohio St. 32^) 840 
 
 Pym V. Great Northern Ry. Co. (2 B. 
 
 &S. 759; 4B. & S. 896) 1042 
 
 V. Atlanta (59 Ga. 318) 258 
 
 Barnhart (7 U. C. L. J. 103) 282 
 
 Board (L. R. 8 Q. B. 227) 213 
 
 V. Board, etc. (8 L. T. N. S. 383) 1010, 
 
 1028 
 V. Boardman (30 U. C. Q. B. 553) 428 
 V. Boulton (15 U. C. Q. B. 272) 661 
 «. Boycott (14 L. T.N. S. 599) 223 
 ». Brown, etc. (13 U. C. C. P. 356) 661 
 ». Charlesworth (16 Q. B. 1012) 690 
 697, 709 
 V. Chorley (12 Q. B. 515) 377 
 
 V. County, etc. (7 U. C. Law J. 
 
 266) 828 
 
 V. Cridland (7 E. & B. 853) 405 
 
 V. Davis (35 U. C. Q. B. 107) 631 
 V. Derbyshire (2 Q. B. 745) 720 
 
 V. Donaldson (24 U. C. C. P. 148) 627 
 V. Durham (10 Mod. 146) 246 
 
 V. East Mark (11 Q. B. 877) 661 
 
 ». Exeter (L. R. 4 Q. B. 110) 223 
 V. Farrell (9 Cox, C. C. 446) 382 
 
 ■;. Fitzgerald (39 U. C. Q. B. 297) 662, 
 
 1024 
 V. Gas Co. (2 E. & E. 651) 690, 697, 
 
 709 
 V. Glamorganshire (2 East, 356) 661 
 V. Glossop (4 B. & A. 616) 405 
 
 V. Gloucestershire (1 C. & M. 506) 720 
 «j. Gordon (6 U. C. C. P. 213) 661 
 V. Governors (8 A. & E. 682) 259, 273 
 V. Greenhbw (L. R. 1 Q. B. Div. 
 
 703) 1053 
 
 V. Halifax Road Trustees (12 Q. 
 
 B. 442) 855 
 
 V. Haynes (7 L. R. 2) 377 
 
 V. Holmes (3 C. & K. 360) 382 
 
 V. Horley (8 L. T. N S. 382) 1032 
 
 V. Hyde (21 L. J. M. C. 94) 405 
 
 V. Inhabitants, etc. (Dears. C. C. 
 
 291) 1053 
 
 Ipswich (2 Ld. Raym. 1232) 206 
 
 Jay (8 E. & B. 469) 726 
 
 Jarvls (3 F. & F. 108) 392 
 
 Johnson (38 U. C. Q. B. 549) 363 
 
 Johnson (8 Q. B. 102) 344, 406 
 
 Justices (8 Ad. & E. 173) 225 
 
 Kendall (1 Q. B. 366) 859 
 
 Kennett (L. R. 4 Q. B. 567) 350 
 
 Kitchener (L. R. 2 C. C. 88) 1033 
 
 Light (27 L. J. M. C. 1) 238 
 
 Lincomb (2 Chit. 214) 377 
 
 Litchfield (4 A. &. E.(N. S. 897) 174 
 
 Loughton (3 Smith, 575) 377 
 
 Louth (13 U. C. C. P. 615) 661 
 
 Maybury (4 F. & F. 90) 377 
 
 Mayor, etc. (10 Mod. 107) 276 
 
 Queen v. Monro (22 U. C. Q. B, 44) 381 
 V. Murray (1 U. C. L. J. N. S. 
 
 104) 282 
 
 «. Mutters (10 Cox, 6) 378 
 
 V. Oldham (L. R. 3 Q. B. 474) 775 
 V. Orchard (3 Cox, 248) 382 
 
 V. Osier (32 U. C. Q. B. 224) 323 
 
 17. Owens (2 E. & E. 86) 246 
 
 V. Paget (3 F. & F. 29) 377 
 
 V. Paris (12 U. C. C. P. 445) 661 
 
 V. Petrie (4 E. & B. 737) 661 
 
 V. Plenty (L. R. 4 Q. B 346) 225 
 V. Plunkett (21 U. C. Q. B. 536) 632 
 B-Rcctor, etc. (8 A. & E. 356) 225 
 wlTKegistrar (10 Q. B. 839) 206 
 
 V. Rice (L. B. 1 C. C. 21) 381 
 
 .;. Roddy (41 U. C. Q. B. 291) 428 
 V. Rubidge (25 U. C. Q. B. 299) 631 
 V. St. Margaret's (8 A. & E. 889) 860 
 V. Sadlers' Co. (10 H. Ld. Cas. 
 
 404) 277 
 
 V. Scott (2 Ld. Raym. 922) 1032 
 
 V. Spence (11 U. C. Q. B. 31) 631, 
 
 661 
 V. Stamford (6 Q. B. 433) 175 
 
 V. Thalman (9 Cox, 388) 382 
 
 V. United Kingdom Telegraph 
 
 Co. (3 F. & F. 74) 1024 
 
 V. Walker (23 L. J. M. C. 123) 238 
 V. Ward (L. R. 8 Q. B. 210) 225 
 
 V. Watson (2 Cox, C. C. 376) 382 
 V. Webb (1 Den. C. C. 338) 382 
 
 V. Wood (5 E. & B. 49) 171 
 
 V. Wood (L. R. 4 Q. B. 559) 350 
 
 V. Yorkville (22 U. C. C. P. 431) 661, 
 
 1033 
 
 Queen's Bench (11 A. & E. 2) 890 
 
 Quin V. Moore (15 N. Y. 432) 1042 
 
 Quincy v. Ballance (30 111. 185) 405, 406 
 
 V. Barker (81 111. 300) 1019, 1020, 1021 
 
 V. C. B. & Q. Railroad (92 111. 21) 696 
 
 V. Jones (76 111. 231) 656, 671, 680, 
 
 998, 999, 1003 
 
 V. Railroad Co. (92 111. 21) 674 
 
 V. Watfield (25 111 317) 487 
 
 Quinn v. Paterson (3 Dutch. 35) 665, 677, 
 
 798, 999 
 
 Raab v. Maryland (7 Md. 483) ' 209 
 
 Rabassa v. Mayor (1 Martin (La.), 
 
 N. S. 484) 733, 781 
 
 Rackham v. Bluck (9 Q. B. 691) 428 
 
 Radcliff V. Brooklyn (4 N. Y. 195) 995, 996, 
 
 998, 999, 1001, 1004, 1071 
 
 Rader v. Road Dist. (36 N. J. L. 273) 76 
 
 Radich v. Hudson (95 U. S. 210) 943 
 
 Radway v. Briggs (37 N. Y. 256) 141, 987 
 
 Ragan v. McCoy (29 Mo. 356) 625, 626 
 
 Ragatz t). Dubuque (4 Iowa, 349) 606, 614 
 
 Ragnet v. Wade (4 Ohio, 107) 264 
 
 Railroad Co. in re (23 U. C. C. P. 281) 327 
 
 (Q. B. Div. 26 W. R. 13) 820 
 
 V. Adams (3 Head (Teim.), 596) 696, 
 
 703, 711 
 
 V. Adler (56 111. 344) 84 
 
TABLE OF CASES CITED. 
 
 Ixxxix 
 
 Bailroad Co. v. Alexandria (17 Gratt. 
 
 176) 113, 114, 763, 770, 774, 787 
 
 B. Applegate (8 Dana(Ky.), 289) 697, 
 
 700, 711, 716 
 
 ti. Baltimore (21 Md. 93) 124,324,701, 
 
 711 
 ». Ball (5 Ohio St. 568) 621 
 
 o. Barren Co. (10 Bush, 604) 533 
 V. Blancliard (64 111. 240) 911, 918 
 V. Brown (17 B. Mon. (Ky.) 763) 700 
 V. Brownell (24 N. Y. 345) 652 
 
 a. Buchanan County (39 Mo. 485) 127, 
 
 547 
 V. Buffalo (5 Hill, 209) 394, 706 
 
 V. Capps (67 111. 607) 704, 705, 706 
 V. Cass Co. (53 Mo. 17) 773 
 
 V. Charlestown (8 Allen, 330) 785 
 B. Chatham (42 Conn. 445) 307 
 
 B. Chenoa (43 111. 209) 111, 678, 707 
 .7. Chicago (56 III. 454) 778 
 
 u. City Railway Co. (2 Duvall, 
 
 175) 716 
 
 B. Claggett (Speers Eq. 562) 439 
 
 B. Clute (4 Paige (N. Y.), Ch. 
 
 384) 787 
 
 B. Coleman (94 U. S. 181) 73 
 
 V. Collett (6 Ohio St. 1»2) 621 
 
 B. Commr?. (1 Ohio St. 77) 63, 179 
 V. Commrs. (98 U. S. 541) 944 
 
 0. Commonwealth (66 Pa. 73) 729 
 B. Connelly (10 Ohio St. 159) 70, 731, 
 749, 758, 787, 796 
 V. Connelly (7 Ind. 32) 607, 609 
 
 B. Coombs (10 Bush, 382) 664, 705, 
 706, 1041 
 V. Dailey (13 Ind. 353) 696 
 
 B. Dalby (19 111. 353) 53 
 
 u. Davidson County (1 Sneedj 
 
 692) 64 
 
 B. Davis (2 D. & B. 451) 583 
 
 B. Decatur (33 111. 381) 703, 707 
 
 V. Dodge County (98 U. S. 541) 944 
 B. Doughty (22 N. J. L. 495) 618, 622 
 B. Duquesne (46 Pa. St. 223) 677, 720 
 B. Elevator Co. (50 Pa. St. 499) 632, 
 
 662 
 B. Engle (76 111. 317) 311, 414 
 
 V. Evansville (15 Ind. 395) 121, 154, 
 
 155, 157, 189, 482, 487, 516, 624, 
 548 
 V. Francis (70 III. 2-38) 1008 
 
 V. Galena (40 III. 344) 678, 707 
 
 B. Gilmore (37 N. H. 410) 788 
 
 B. Gladmon (15 Wall. 401) 713, 1041, 
 
 1050 
 B. Gregory (15 111. 21) 71 
 
 B. Hanna (68 Ind. 562) 749 
 
 B. Hartford (58 Me. 23) 191, 506 
 
 V. Heath (9 Ind. 558) 614 
 
 B. Howard (21 Wis. 44) 788 
 
 B. Hunter (8 Ind. 74) 621 
 
 B. Husen (95 O. S. 465) 169 
 
 V. Ingles (15 B. Mon. 637) 262 
 
 B. Jackson (7 Wall. 262) 733 
 
 «. Joliet (79 111. 39) 412 
 
 Railroad Co. v. Kennedy (39 Ala. 
 
 307) 580 
 
 V. Kerr (45 Barb. 148) 699 
 
 B. Lafayette (22 Ind. 262) 787 
 
 B. Lancaster Co. (4 Neb. 293) 761 
 B. Leavenworth (1 Dill. C. C. R. 
 
 393) 652,699,701,711,716 
 
 V. Logan Co. (63 111. 374) 867, 868 
 V. Longworth (30 Ohio St. 108) 622 
 B. McGuire (20 Wall. 46) 774 
 
 V. McGuire (49 Mo. 483) 911 
 
 V. McShane (22 Wall. 444) 948 
 
 B. Marion County (36 Mo. 294) 124, 
 
 548 
 B. Marshall Co. (3 W. Va. 319) 773 
 B. Maryland (10 How. 393) 774 
 
 B. Mayor (1 Hilt. 562) 121, 125 
 
 V. Mayor, etc. (Iowa S. C. 1873) 700 
 B.Memphis (10 Wall. 38) 125 
 
 B. Miller (30 Ind. 209) 614 
 
 B. Moore (4 W. N. C. 37) 621 
 
 B. Morgan Co. (14 111. 163) 783, 787 
 B. Moye (39 Miss. 374) 621 
 
 V. Mt. Pleasant (12 Iowa, 112) 794, 920 
 V. Munger (5 Denio, 255) 1040 
 
 B. Municipality |7 La. An. 148) 139 
 </. Municipality (1 La. An. 128) 696, 
 
 700 
 B. Napa County (30 Cal. 435) 825 
 8. Nesbit (10 How. 395) 603 
 
 V. Newark (2 Stockt. .352) 696,700, 701 
 B. Newark (23 N. J. Eq. 515) 699 
 
 B. New Haven (42 Conn. 279) 749, 
 
 776 
 B. New York (1 Hilt, (N. Y.) 562) 699, 
 
 711 
 V. Norton (24 Pa. 465) 746, 749 
 
 I/. Norwalk (37 Conn. 109) 383 
 
 B. Oakes (20 Ind. 9) 607, 609 
 
 V. Oakland (43 Cal. 503) 464 
 
 B. O'Daily (ISInd. 353) 664, 705, 711, 
 
 716 
 
 V. Otoe County (16 Wall. 677) 185, 
 
 491, 622, 537, 541 
 
 B. Otoe County (1 Dill. C. C. 338) 189, 
 
 479 
 V. Owings (15 Md. 199) 606 
 
 V. Payne (37 Miss. 100) 607 
 
 B. Payne (8 Rich. (S. C.) Law, 
 
 177) 702 
 
 ». Philadelphia (88 Pa. 424) 749 
 
 B. Philadelphia (47 Pa. St. 325) 697 
 V. Philadelphia (68 Pa. St. 119) 3-57 
 B. Philadelphia (47 Pa. St. 314) 652 
 V. Philadelphia (101 U. S. 528) 786 
 B. Platte County (42 Mo. 171) 127, 546 
 B. Plumas County (37 Cal. 354) 64, 
 111, 858 
 B. Porter (29 Pa. St. 165) 698 
 
 B. Prudden (20 N. J. Eq. 530) 659 
 B. Quigley (21 How. 202) 970 
 
 B. Railroad Co. (2 Gray, 1 ) 580 
 
 B. Railway Co. (9 Exch. 55) 210 
 
 B. Reed (41 Cal. 256) 697, 699, 703, 
 704, 712 
 
xc 
 
 TABLE OF CASES CITED. 
 
 Railroad Co. v. Richmond (96 U. S. 
 
 521) 334 
 
 V. Ross (47 Ind. 25) 776 
 
 V. Saco (60 Me. 196) 773 
 
 V. St. Paul (21 Minn. 526) 749, 753 
 V. Sohurraier (7 Wall. 272) 136, 633 
 V. Shacklett (30 Mo. 650) 773 
 
 V. Shiels (33 Ga. 601) 659, 700, 702, 
 
 703 
 V. Smith (6 Ind. 249) 607, 609 
 
 V. Smith (23 Kan. 745) 187 
 
 V. Spearman (12 Iowa, 112) 213, 749, 
 776, 787, 793 
 V. State (3 Head, 523) 930 
 
 V. State (25 Ind. 177) 787, 821 
 
 V. State (37 Ind. 489) 828 
 
 u. Steiner (44 Ga. 546) 696, 699 
 
 .,. Stockton (41 Cal. 147) 728 
 
 V. Stout (17 Wall. 657) 1050 
 
 V. Stout (2 Dillon, 294) 1050 
 
 V. Supervisors (3 Am. Law Reg. 
 
 679) 740 
 
 ». Tax (18 Wall. 206) 773 
 
 V. Tax Court (50 Md. 397) 788 
 
 V. Veeder (17 Ohio, 385) 477 
 
 V. Washington Co. (80 Gratt. 471) 732, 
 
 763 
 V. Washington Co. (3 Neb. 42) 116, 
 
 615 
 V. Washington Co. (10 Bush, 564) 548 
 V. Whipple (22 111. 105) 924 
 
 V. Wilson (49 Cal. 396) 697 
 
 V. Winthrop (5 La. An. 36) 136, 138 
 V. Wright (5 R. I. 459) 785, 787 
 
 V. Wyandotte Co. (16 Kan. 587) 941, 
 942,944 
 Railroad, etc. Bank v. Lowell (109 
 
 Mass. 214) 939 
 
 Raleigh v. Dougherty (3 Humph. 11) 369 
 
 V. Sorrell (1 Jones Law, 49) 291, 392, 
 
 393 
 
 Ramsay ». Clinton Co. (42 111. 225) 674 
 
 </. District Council (4 U. C. Q. B. 
 
 374) 442 
 
 Ramsey v. Riley (13 Ohio, 157) 265, 266 
 
 Ramshey in re (83 Eng. C. L. 174) 259, 
 
 273 
 
 Rand v. Townsend (26 Vt. 670) 604 
 
 u. Wilder (11 Cush. 294) 286,288 
 
 Randall v. Elwell (52 N. Y. 522) 788 
 
 V. Railroad Co. (106 Mass. 276) 1026 
 
 V. Railroad Co. (8 Am. Rep. 327) 1026 
 
 V. Van Vechten (19 Johns. 60) 447, 
 
 450, 455, 460, 483, 678 
 
 Randle v. Railroad Co. (65 Mo. 325) 704 
 
 Randolph v. Bayne (44 Cal. 366) 810 
 
 V. Braintree (4 Mass. 315) 214 
 
 V. Gawley (47 Cal. 458) 778 
 
 Randolph Co. v. Baldwin (46 Ala. 
 
 397) 839 
 
 Randolph, etc. v. Stalnaker (13 Gratt. 
 
 623) 819 
 
 Rankin v. Beaird (1 111. 123) 80 
 
 V. Railroad Co. (4 U. C. C. P. 
 466) 607 
 
 Ranlett v. Leavenworth (1 Dill. C. R. 
 
 268) 497 
 
 V. Lowell (126 Mass. 431) 1073 
 
 Ranney v. Bader (67 Mo. 476) 552, 912 
 
 Ransom v. Boal (29 Iowa, 68) 670, 647 
 
 V. New York (1 Fisher Pat. Cas. 
 
 264) 968 
 
 Raphael v. Bank (17 C. B. 161) 653 
 
 Rapho V. Moore (68 Pa. St. 404) 1038, 1048 
 
 V. Moore (8 Am. Rep. 202) 1048, 1049 
 
 Rastrick v. Great Western Railway 
 
 Co. (27 U. C. Q. B. 396) 1051 
 Rathbun v. Acker (18 Barb. 393) 599, 763, 
 
 767, 800 
 
 Ray e. Lynes (10 Ala. 63) 992 
 
 V. Manchester (46 N. H. 69) 1017, 
 
 1027, 1028 
 
 V. Petrolia (24 U. C. C. P. 73) 1024, 
 
 1034 
 
 V. Vansycle (96 U. S. 675) 535 
 
 Raymond v. Lowell (6 Cush. 624) 1017, 
 
 1025, 1027, 1029, 1039, 1041 
 
 Read v. Buffalo (74 N. Y. 463) 488 
 
 V. Perrett (L. R. 1 Ex. Div. 349) 723 
 
 Reading v. Commonwealth (11 Pa. 
 
 St. 196) 8, 9, 96, 652, 654, 655. 857 
 
 V. Keppleman (61 Pa. St. 233) 111, 998 
 
 V. Wedder (66 111. 80) 635 
 
 Ready v. Mayor (6 Ala. 327) 980, 981 
 
 Reardon v. St. Louis (36 Mo. 555) 962 
 
 Rector v. Hart (8 Mo. 448) 635 
 
 V. State (6 Ark. 187) 428 
 
 Red V. Augusta (26 Ga. 386) 303 
 
 Redd V. Supervisors (31 Gratt. 685) 649 
 
 Reddall v. Bryan (14 Md. 444) 589, 590, 
 
 605 
 
 Roddick v. Amelia (1 Mo. 5) 54, 143 
 
 Redfield v. Railroad Co. (25 Barb. 54) 663 
 
 Reed v. Bainbridge (1 South. 351) 127 
 
 V. Belfast (20 Me. 246) 964, 1016, 1041, 
 
 1042 
 V. Hamilton (5 U. C. C. P. 269) 1069 
 V. Lynn (126 Mass. 367) 141 
 
 V. Northfield (13 Pick. 94) 641, 1027, 
 1040, 1048, 1050, 1052 
 V. People (1 Park. C. R. Rep. 481) 355 
 V. Toledo (18 Ohio, 161) 600 
 
 V. Tyler (56 111. 288) 815 
 
 Reedie v. London, etc. Co. (L. R. 4 
 
 Exch. 244) 1058 
 
 Rees V. Chicago (38 HI. 322) 587, 634 
 V. Watertown (19 Wall. 107) 202,818, 
 838, 842, 846, 852, 873, 874, 876 
 Reeside v. Walker (11 How. 272) 826 
 Reeve v. Wood (5 B. & S. 364) 428 
 
 Reeves v. Toronto (21 U. C. Q. B. 
 
 157) 160, 936, 986, 1073, 1075 
 
 V. Treasurer Wood County (8 
 
 Ohio St. 333) 592, 738, 777, 805 
 
 Regan v. McCoy (29 Mo. 356) 630 
 
 Regents v. Detroit (12 Mich. 138) 446 
 
 V. McConnell (5 Neb. 423) 78, 83, 261 
 
 Regents of University v. Williams (9 
 
 G. & J. 365) 193, 249, 250 
 
 V. Williams (7 G. & J. 365) 97 
 
TABLE OF CASES CITED. 
 
 XCl 
 
 Begents of University v. Williams (9 
 
 G. & J. 366) 78, 294 
 
 Reggio V. Braggiotti (7 Cush. 166) 1062 
 Regina v. Anderson (2 Q. B. 740) 890 
 «. Archbishop (11 Q. B. 678) 866 
 V. Avery (18 Q. B. 676) 227 
 
 V. Bamber (5 Q. B. 279) 1063 
 
 ». Belmont (36 U. C. Q. B. 298) 363 
 V. Bewdley (1 P. Wms. 207) 194, 203 
 V. Blizard (Law Rep. 2 Q. B. 634) 891 
 V. Boucher (2 Q. B. 644) 46 
 
 V. Bradburn (6 U. C. P. R. 308) 225 
 V. Bradley (3 E. & E. 634) 227 
 
 V. Bristol Dock Co. (2 Q. B. 64) 820 
 V. Bristol Dock Co. (4 Q. B. 162) 868 
 V. Canal Co. (8 Dowl. P. C. 623) 824 
 B. Canal Co. (11 A. & E. 316) 865 
 V. Chapman (12 Cox, 4) 238, 239 
 V. Chapman (6 Mod. 162) 866 
 
 V. Chester (6 El. & Bl. 531) 882 
 
 V. Conyers (8 Q. B. 981) 861, 862 
 V. Cottle (3 Eng. Law & Eq. 474) 677 
 V. Councillors, etc. (7 Ad. & E. 
 
 419) 225 
 
 V. Cousins (28 L. T. N. S. 116) 225 
 V. Crawley (3 F. & F. 109) 392 
 
 V. Cumberlege (36 L. T. N. S. 
 
 700) 254 
 
 V. Deighton (5 Q. B. 896) 227 
 
 I'. Derby (7 A. & E. 419) 832, 882 
 V. Derbyshire (2 Q. B. 745) 719 
 
 V. Dock Co. (2 Eng. R'y Cases, 
 
 599) 825 
 
 V. East, etc. Railroad Co. (10 A. 
 
 &E.631) 858 
 
 V. Eye (9 A. & E. 676) 866, 872 
 
 V. Gloucester (Holt, R. 450) 250 
 
 V. Greene (2 Q. B. 460) 890 
 
 «. Grimshaw (lOQ. B. 747) 285 
 
 V. Hammond (17 Q- B. 772) 227 
 
 V. Heatheote ( 10 Mod. 49)821 , 871, 872 
 V. Bedford (Col. L. R. 2 Q. B. 
 
 590) 882 
 
 V. Hiorns (7 Ad. & E. 960) 225, 832 
 V. Inhabitants, etc. (19 L. J. M. 
 
 C. 215) 1032 
 
 V. Ipswich (2 Ld. Raym. 1232) 206, 
 
 208 
 V. Jackson (40 U. C. Q. B, 290) 377 
 V. Lane (1 Ld. Raym. 1304) 250 
 
 V. Ledgard (1 Ad. & E. N. S. 
 
 616) 863 
 
 B. Ledgard (1 Q. B. 620) 863 
 
 V. Ledyard (8 Ad. & E. 535) 225 
 
 V. Leeds (7 A. & E. 963) 830 
 
 V. Leeds (11 A. & E. 512) 832, 882 
 w. Lindsay (C. Q. B. 51) 882 
 
 V. Litchfield (4 A. & E. N. S. 891) 152, 
 
 155 
 V. Litchfield (4 Q. B. 893) 146, 219 
 u. Liverpool (9 A. & E. 436) 903 
 
 V. Lloyd (6 Law Times Rep. (N. 
 
 S.) 610) 886 
 
 V. Mayor, etc. (Law Rep. 3 Q. 
 
 B. 629) 226 
 
 Regina v. Mayor, etc. (4 Dowl. P. C. 
 
 562) 416 
 
 V. McGowan ( 12 A. & E. 869) 244 
 V. McRae (5 U. C. P. R. 809) 243 
 V. Mitchell (4 U. C. P. R. 218) 226 
 V. Monmouth (L. R. 5 Q. B. 261) 831 
 B. Morton (4 Q. B. 146) 249 
 
 B. Mutter (Leigh, Cas. 491) 1058 
 
 B. Newberry (1 Q. B. 751) 267, 275, 
 
 276 
 B. Nott (4 Q. B. 773) 930 
 
 V. O'Hare (24 P. R. 18) 882 
 
 B. Oxford (6 Ad. & El. 349) 270 
 
 B. Paramore (10 A. & E. 286) 28, 281 
 B. Pembroke (8 Dowl. P. C. 302) 830 
 l;. Purdy (lOU. C. Q. B. 545) 631 
 B. Railroad Co. (1 Ell. & Bl. 293) 867 
 B. Railroad Co. (9 Q. B. 315) 929 
 B. Railroad Co. (3 Ad. & Ell. N. 
 
 S. 223) 930 
 
 V. Railway Co. (32 U. C. Q. B. 
 
 506) 631 
 
 B. Railway Co. (4 H. L. Cas. 471) 861 
 B. Registrar Stock Co. (10 Q. B. 
 
 839) 206 
 
 B. Ricketts (7 Ad. & El. 966) 270 
 B. Roberts (36 L. T. B. 690) 261, 293 
 V. Roberts (Am. L. R. 414) 261 
 
 B. Rogers (2 Ld. Raym. 777) 275 
 B. Rowley (3 Q. B. 143) 227 
 
 V. Rowley (E. C. 6 Q. B.) 227 
 
 B. Saunders (L. R. 1 Q. B. 15) 382 
 V. Sheffield Gas Co. (L. R. 6 Q. 
 
 B. 652) 176 
 
 - B. Slieflield Gas Co. (22 Eng. Law 
 
 & Eq. 518) 690 
 
 B. Slatter (11 A. & E. 602) 832 
 
 V. Southampton (1 Ellis, B. & S. 
 
 5) 867 
 
 B. Stamford (1 Ad. & E. N. S. 
 
 433) 863 
 
 B. St. Margarets (1 P. & D. 116) 861 
 B. St. Martins (17 Q. B. 149) 882 
 B. St. Peters (2 Ld. Raym. 1249) 1033 
 B. Stevenson (3 F. & F. 106) 392 
 
 B. Sutton (10 Mod. 76) 270 
 
 B. Tart (1 E. & E. 618) 227 
 
 B. Telegraph Co. (9 Cox Cr. Cas. 
 
 174) 694 
 
 u. Thomas (8 Ad. & El. 183) 285 
 
 V. Touchburn (6 U. C. P. R. 344) 226. 
 
 226 
 
 V. Train (9 Cox Cr. Cas. 180) 690, 
 
 697, 709 
 
 V. Treasury (10 Ad. & E. 874) 275 
 
 B. Turnpike Roads (12 A. & E. 
 
 427) 828 
 
 B. Whipp (4 Q. B. 141) 285 
 
 V. Wood (5 Ell. & Bl. 55) 395 
 
 V. York (2 Q. B. 850) 28, 281 
 
 Reich B. State (57 Ga. 73) 369 
 
 Reichard v. Warren County (31 Iowa, 
 
 381) 461 
 
 Reid in re (50 Ala. 439) 833 
 
 Beiff V. Conner (10 Ark. 241) 808, 327 
 
xcu 
 
 TABLE OF CASES CITED. 
 
 Keilly w. Chouqtiette (18 Mo. 220) 668 
 
 V. Philadelphm (60 Pa. St. 467) 46.3, 
 
 474 475 799 979 
 
 Eeiman v. Shepard (27 Ind.'sSS) ' 784 
 
 Reinboth v. Pittsburg (41 Pa. St. 278) 154, 
 
 155 
 Reis V. Graff (51 Cal. 86) 116, 443, 800, 809 
 Reitenbaugh v. Railroad Co. (21 Pa. 
 
 St. 100) 598 
 
 Remington v. Millard (1 R. I. 93) 636, 640, 
 
 641 
 Remy v. Municipality (11 La. An. 
 
 148) 558 
 
 Renthrop v. Bourg (4 Mart. (La.) 97) 649 
 
 Renwick v. Hall (84 111. 162) 886 
 
 V. Railroad Co (47 Iowa, 511) 180 
 
 V. Railroad Co. (36 N. Y. 133) 1051 
 
 Reock V. Newark (33 N. J. L. 129) 127, 
 
 474, 476, 824, 952, 1006 
 
 Requa ti. Rochester (45 N. Y. 129) 640, 
 
 720, 1030, 1037-, 1040, 1047, 1048 
 
 Respublica w. Caldwell (1 Dal. 150) 382 
 
 V. Dallas (3 Yeates, 316) 252 
 
 V. Duquet (2 Yates, 493) 402 
 
 V. Sparhawk (1 Dallas, 337) 953 
 
 Reynolds v. Baldwin (1 La. An. 165) 833 
 
 V. SUreveport (13 La. An. 426) 
 
 V. Taylor (43 Ala. 420) 
 Rex V. Abingdon ( 1 Ld. Raym. 561 ) 
 
 B. Abington (2 Salk. 700) 
 
 999, 
 1004 
 840 
 830, 
 863 
 862, 863, 
 
 Allen (2 U. C. Q. B. 101) 631 
 
 Amery (2 T. R. 515) 193, 199, 
 Amery (2 Bro. P. C. 336) 211 
 
 893 
 Andover (1 Ld. Raym. 710) 273 
 Andover (3 Salk. 229) 275 
 
 Ashwell ( 12 East, 22) 327, 347 
 Atkyns (4 Mod. 12) 244 
 
 Atwood (4 B. & Ad. 481 ) 414 
 
 Axbridge (Cowp. 523) 277, 836, 837 
 Axbridge (2 Terra R. 182) 277 
 Babb (3 T. R. 579) 315, 316, 837 
 Bailiffs (1 B. & C. 86) 
 Bailiffs (2 D. & R. 172) 
 Bank (2 B. & Aid. 620) 
 Bank of England (Doug. 506) 
 Bankes (3 Burr. 1454) 
 Barber Surgeons (1 Ld. Raym. 
 
 585) 
 Barker (3 Burr. 1265) 817, 818 
 Barnard (Comb. 416) 233 
 
 Bedford (1 East, 80) 832 
 
 Bedford (1 Barnard. 242) 880 
 
 Benchers of Gray's Inn (Doug. 
 
 339) 822 
 
 Bellringer (4 Term R. 810) 281, 282 
 Bond (6 D. & R. 333) 251 
 
 Bower (2 Dowl. & R. 761) 248 
 Bower (1 B. & Cr. 492, 585) 248, 
 282 
 Bridgman (2 Str. 1203) 315, 316 
 Bristol (1 D.&R. 389) 836 
 
 Rex -v. Bristol (5 B. & Aid. 731) 836 
 
 V. Brown (3 Term R. 574) 890 
 
 V. BuUer (8 East, 388) 887 
 
 V. Bumstead (2 B. & Ad. 699) 222,234 
 V. Cambridge (4 Burr. 2008) 223, 830, 
 834, 835, 863 
 V. Cambridge (2 T. R. 461) 867 
 
 V. Campion (1 Sid. 97) 837 
 
 V. Campion (1 Sid. 14) 870 
 
 .,. Canal Co. (1 M. & S. 32) 824, 855 
 V. Canal Co. (3 Ad. & E. 217) 858 
 V. Carlisle (Fortesc. 200) 274 
 
 V. Carlisle (6 Carr & P. 636) 657, 722 
 V. garmathen (1 M. & S. 697) 277 
 V. Carter (Cowp. 59) 281, 282 
 
 V. Chalke (1 Ld. Raym. 225) 267, 276, 
 277, 278, 279 
 ». Chalke (Comb. 397) 274 
 
 o. Chester (1 M. & S. 101) 120, 127 
 V. Chester (2 Tei-m R. 565) 887 
 
 V. Chitty (5 Ad. & E. 609) 222, 234, 
 
 275 
 V. Clapham (1 Wils. 305) 314 
 
 V. Clarke (2 Ld. Raym. 848) 866 
 
 V. Colchester (2 T. R. 259) 830, 834 
 V. Commissioners (2 Keeble, 43) 431 
 V. Commissioners ( 1 Term R. 148) 817 
 V. Commissioners, etc. (2 T. R. 
 
 232) 828 
 
 V. Company, etc. (8 Term R. 356) 413 
 V. Cottrell (1 B. & Ad. 67) 384 
 
 V. Coventry (1 Ld. Raym. 391) 273 
 V. Croke (Cowp. 29) 206, 291 
 
 V. Cross (3 Campb 226) 657, 722 
 V. Cusack (2 Rool. R. 113) 887 
 
 V. Dawes (4 Burr. 2279) 282 
 
 V. Dawes (4 Burr. 2022) 890 
 
 V. Dawes (Willc. 54) 282 
 
 u. Dean (1 Str. 539) 240 
 
 V. Debenham (2 B. & Ad. 187) 317 
 V. Derby (C.T. Hardw. 155) 274, 278 
 V. Derby (7 A. & E. 419) 830 
 
 V. Derby (2 Salk. 436) 861, 866 
 
 V. Devonshire (1 B. & C. 609) 282 
 V. Doncaster (Say. 38) 268, 273 
 
 Doncaster (2 Ld. Raym. 1564) 245, 
 276 279 
 Doncaster (2 Burr. 738) 267,' 277, 
 284, 301 
 Downshire (4 A. & E. 232) 631 
 Dublin (1 Stra. 540) 861 
 
 Durham (10 Mod. 147) 245 
 
 Earle (1 Str. 627) 244 
 
 Egerly (3 Salk. 183) 657 
 
 Everett (Cas. Temp. Hardw. 
 
 261) 824 
 
 Exeter (Comb. 197) 223 
 
 Exetet (12Mod. 251) 866 
 
 Exeter (1 Ld. Raym. 223) 866 
 Feversham (8 T. R. 356) 268, 277, 
 278, 285 
 Fishermen (8 Term R. 356) 414 
 Fowey (4 D. & R. 614) 866, 871 
 Frost (8 A. & E. 822) 857 
 
 Gaborian (11 East, 87) 281 
 
 127 
 
 V 
 
 825 
 
 
 8-36 
 
 V 
 
 824 
 
 
 830 
 
 V 
 
 
 V 
 
 3.30 
 
 V 
 
TABLE OF CASES CITED. 
 
 XCIU 
 
 Bex V. Gloucester (3 Bulst. 190) 863 
 
 ». Godwin (Doug. 388) 250 
 
 V. Greene (6 A. & E. 649) 837 
 
 V. Greet (8 B. & G. 363) 282 
 
 V. Griffiths (3 B. & Aid. 735) 277, 870 
 V. Grimes (5 Burr. 2601) 277, 284 
 V. Grimsiiaw (10 Q. B. 747) 302 
 
 V. Grosvenor (7 Mod. 199) 194 
 
 V. Grosvenor (1 Wils. 18; 2 Str, 
 
 1193) 
 V. Gwyn (1 Str. 401) 
 V. Harris.(l B. & A. 936) 275, 276, 
 277, 285, 301 
 V. Harris (33 Eng. G. L. 117) 891 
 V. Harrison (3 Burr. 1328) 330, 413 
 V. Hastings (1 D. & R. 148) 825 
 
 V. Hatfield Peverel (14 Q. B. 298) 927 
 V. Head (4 Burr. 2521) 
 V. Headley (7 B. & C. 498) 
 V. Heath (1 Barnard. 417) 
 ». Heaven (2 T. R. 772) 
 V. Hebden (Anstr. 391) 
 V. Hereford (2 Salk. 701 ) 861, 866 
 V. Hereford (1 Ld. Rayra. 559) 863 
 V. Hertford (1 Ld. Raym. 426) 
 V. Hill (4 B. & C. 441) 
 V. Hiorns (7 A. & E. 960) 
 V. Hodge (2 B. & A. 344) 
 V. Hopkins (1 Q. B. 161) 
 V. Hughes (5B. &C.886) 
 V. Hungerford (11 Mod. 132) 
 
 248 
 
 317 
 
 291 
 282 
 223 
 267 
 282 
 
 290 
 
 284 
 
 830 
 
 890 
 
 837 
 
 249, 251 
 
 248 
 
 Ingram (1 W. Bl. 50) ' 315 
 
 Inhabitants (1 Ld. Raym, 580) 922 
 
 Inhabitants (5 B. & A. 469) 627, 
 
 641 
 
 Inhabitants, etc. (4 B. & Ad. 
 
 447) 627 
 
 Inhabitants, etc. (3 Campb. 
 
 222) 1064 
 
 Ipswich (2 Ld. Raym. 1233) 275, 
 277, 278, 314, 837, 865, 870 
 " 275,865 
 
 722 
 722 
 194 
 861 
 861 
 861 
 855 
 249 
 275 
 286 
 927 
 277 
 
 Ipswich (2 Salk. 435) 
 Jones (3 Campb. 231) 
 Jones (6 East, 230) 
 Kent (13 East, 220) 
 Kingston (8 Mod. 210) 
 Kingston (11 Mod. 382) 
 Kingston (1 Stra. 578) 
 Lancashire (12 East, 366) 
 Lane (2 Ld. Raym. 1304) 
 Lane (Fortesc. 275) 
 Langhorne (4 Ad. & E. 538) 
 Lediard (Sayer, 6) 
 Leicester (4 Burr. 2089) 
 Leyland (3 M. & S. 184) 248, 830 
 832 
 Liverpool (2 Burr. 723) 267, 274, 
 276, 277, 278, 284, 301 
 Liverpool (1 Barn. 83) 830 
 
 Liverpool (3 East, 86) 1064 
 
 Lloyd (Cald. 309) 027 
 
 Lloyd (1 Campb. 260) 627 
 
 London (2 Show. 262) 13 
 
 London (Term R. 182) 276 
 
 Lord Gordon (Doug. 693) 317 
 
 Rex V. Lucas (10 East, 235) 315, 837 
 
 V. Lyme Regis (Doug. 85, 153, 
 
 177) 267, 273, 278 
 
 V. Maidstone (3 Burr. 1837) 331 
 
 V. Mallett (2 Barnard. 408) 223 
 
 V. Margate Pier Co. (3 B. & Aid. 
 
 221) 854 
 
 V. Marshall (2 B. & A. 341) 252 
 
 V. Marten (4 Burr. 2120) 890 
 
 V. May (6 Burr. 2682) 284 
 
 V. May (4 B. & Ad. 843) 282 
 
 V. Mayor (2 Cowp. 523) 258, 836, 870 
 w. Mayor, eto.(6B.& Aid. 592) 127, 
 
 416 
 ». Mayor, etc. (9 Mod. Ill) 293 
 
 V. Mayor, etc. (2 Term R. 181) 886 
 V. Mayor, etc. (14 East, 348) 929 
 
 ». Mayor, etc. (1 Lev. 291) 273 
 
 V. Mayor, etc. (IM. &S. 101) 127 
 V. Mayor, etc. (7 Mod. 371) 222, 234 
 V. Mayor, etc. (8 Mod. 114) 879 
 
 V. Mayor, etc. (7 Ad. & E. 963) 227 
 V. Mayor, etc. (1 Ld. Raym. 563) 249 
 V. Mayor, etc. (Cas. T. Hardw. 
 
 147) 284 
 
 V. Miller (6 T. R. 277) 194, 281, 282, 
 330, 883 
 u. Monday (Cowp. 530) 223, 281, 282 
 V. Moore (3 B. & Aid. 184) 722 
 
 V. Merely (2 Burr. 1040) 431, 881, 927 
 V. Morris (3 East, 213) 193 
 
 V. Morris (4 East, 26) 281 
 
 V. Mothersell (1 Stra. 93) 307, 317 
 V. Newbury (1 Q. B. 751) 267, 862, 864 
 V. Newbury (2 Kyd, 50) 267 
 
 V. Newcastle (2 Str. 1223) 315, 837 
 V. New Radnor (2 Ld. Kenyon's 
 
 N, 498) 891 
 
 V. Nicholson (1 Str. 299) 195, 880 
 V. Norwich (2 Ld. Raym. 1244) 867, 
 
 868 
 V. Norwich (1 B. & Ad. 310) 830 
 
 V. Norwich (1 Stra. 65) 862, 865 
 
 V. Norwich (2 Salk. 436) 867 
 
 u. Nott (6 A. & E. 355) 820 
 
 V. Nottingham (1 Sid. 31) 315 
 
 V. Nottingham (Sayer, 217) 825 
 
 V. Ogden (10 B. & C. 210) 890 
 
 V. Osbourne (4 East, 326) 194, 883 
 V. Oxford (1 Salk. 428) 273 
 
 V. Oxford (Palm. 455) 275, 284 
 
 V. Oxford (Cas. T. Hardw. 178) 880 
 V. Oxford (7 East, 345) 854 
 
 V. Oxford (6 Ad. & E. 349) 863 
 
 V. Oxfordshire (16 East, 223) 929,932 
 V. Oxon (2 Salk. 429) 837 
 
 V. Parry (6 Ad. & El. 810) 890 
 
 V. Passmore (3 T. R. 241) 193, 194, 
 195, 197, 203, 211, 246 
 V. Patterson (4 B. & Ad. 9) 249, 250, 
 
 Payne (2 Chitty. 366) 
 Phillips (1 Str. 394) 
 Pigram (2 Burr. 767) 
 Plymouth (1 Barnard. 81) 
 
 2.51 
 
 249, 891 
 
 244 
 
 314 
 
XCIV 
 
 TABLE OF CASES CITED. 
 
 Eex V. Pomfret (10 Mod. fi8) 867 
 
 i>. Ponsonby (1 Ves. Jr. 1) 267, 892 
 i;. Poole (Cas. Temp. Hardw. 23) 247 
 K. Powell (Sayer, 239) 891 
 
 V. Purnell (1 Wils. 242) 315 
 
 u. Quayle (11 A. &E. 508) 890 
 
 V. Radford (1 East, 80) 830 
 
 V. Kailroad Co. (9 Car. & P. 469) 929, 
 
 93*2 
 K.Eailway Co. (2 B. & A. 646) 820 
 t;. Richardson (1 Burr. 517) 267, 268, 
 274, 275, 277, 278 
 V. Rlpon (1 Ld. Eaym. 563) 260 
 
 V. Rogers (2 Ld. Raym. 778) 416 
 
 V. Rowe (Garth. 199) 277 
 
 V. Rowe (1 Show. 188) 277 
 
 V. Russell (6 B. & C. 566) 722 
 
 V. Russell (6 East, 427) 657 
 
 «. Salford (18Q. B. 687) 927 
 
 V. Salop (Buller's NisiPrius, 198) 870 
 V. Salway (9 B. & C. 424) 120 
 
 0. Sandys (2 Barnard. 302) 276 
 
 u. Sankey (6 A. & E. 423) 562 
 
 V. Sargeant (5 Term R. 567) 890 
 V. Sarmon (1 Burr. 516) 657, 723 
 V. Saunders (3 East, 119) 194, 197, 
 884, 885, 886 
 B. Sawyer (10 B. & C. 480) 832 
 
 V. Scarborough (2 Stra. 1180) 830 
 V. Shelly (3 T. R. 142) 315, 316, 837 
 V. Shrewsbury (Cas. T. Hardw. 
 
 151) 277 
 
 I'. Shrewsbury (7 Mod. 202) 277 
 
 V. Slatford (6 Mod. 366) 837 
 
 V. Slythe (6 B. & C. 242) 890 
 
 V. Smart (4 Burr. 2143) 281 
 
 tj. Smith (1 Str. 126) 317 
 
 V. Smith (2 M. & S. 598) 862, 863, 865 
 V. Spencer (3 Burr. 1827) 222, 234 
 V. Stafford (3 T. R. 651) 820 
 
 u. Stewart (4 East, 17) 193 
 
 V. St. Martin (1 T. R. 149) 830 
 
 V. Taylor (3 Salk. 231) 267, 268, 275, 
 
 276 
 V. Theodorick (8 East, 545) 284, 286 
 u. Thetford (12 Vin. Abr. 90) 317 
 V. Thetford (8 East, 270) 830 
 
 V. Thornton (4 East, 308) 244 
 
 V. Tidderly (1 Sid. 14) 249, 250, 267 
 t>. Tizzard (17 Eng. C. L. 193) 2.52 
 V. Toneboy (2 Ld. Raym. 1276) 277 
 V. Toneboy (11 Mod. 75) 277 
 
 «. Tooley (12Mod. 312) 866 
 
 V. Totness (5 D. & R. 483) 274 
 
 V. Tower (4 M. & S. 162) 8-37 
 
 V. Tregony (8 Mod. 113) 194, 830, 865 
 V. Trelawney (3 Burr. 1615) 250 
 
 V. Trevenon (2 B. & A. 482) 890 
 
 V. Truro (3 B. & A. 592) 274, 8.30 
 V. Varls (Cowp. 250) 281 
 
 V. Ward (31 Eng. Com. Law, 180) 655 
 V. Ward (4 Ad. & El. 405) 722 
 
 V. Wardroper (4 Burr. 1964) 890 
 
 V. Warlow (2 M. & S. 76) 891 
 
 V. Watson (2 T. R. 204) 262 
 
 Rex V. Wells (4 Burr. 1999) 275, 276 
 
 V. West Looe (5 D. & R. 416) 274 
 u. West Looe (3 B. & C. 685) 866 
 V. West Riding (7 East, 596) 719 
 
 V. Westwood (4 B. & C. 721) 291, 395 
 V. Whitwell (5 Term R. 86) 248, 892 
 V. Wigan (3 Burr. 1645) 866 
 
 V. Wildman (2 Strange, 879) 314, 861 
 Williams (1 Burr. 402) 290, 881 
 
 V. Williams (2 M. & S. 141) 
 V. Williams (1 W. Black. 95) 
 V. Willis (7 Mod. 262) 
 V. Willon (5 Mod. 259) 
 
 824 
 891 
 861 
 277 
 
 277 
 
 K.JVilton (2 Salk. 428) 
 V. Winchester (7 Ad. & E. 215) 227, 
 830, 832, 834 
 u. Woodrow (2 Term R. 732) 248, 830 
 V. Yates (8 Mod. 101) 276 
 
 V. York (4 T. R. 669) 830, 832 
 
 V. York (6 T. R. 495) 867 
 
 V. Yorkshire, etc. (1 A. &E. 563) 822 
 
 Rexford v. Kiiight (11 N. Y. 308) 608 
 
 Reynolds v. Albany (8 Barb. 597) 166 
 
 V. Baldwin (1 La. An. 162) 79, 235, 
 
 290, 879, 881, 882 
 
 V. New Salem (6 Met. 340) 286 
 
 V. Schweinefus (1 S. C. Cin. Rep. 
 
 113) 304 
 
 t). Shreveport (13 La. An. 426) 163 
 V. Stark Co. (5 Ohio, 204) 95, 570 
 V. Taylor (43 Ala. 420) 822 
 
 Rhines v. Clark (51 Pa. St. 96) 406, 425, 
 
 430 
 
 Rhodes v. Cleveland (10 Ohio, 159) 992, 
 
 1002, 1068 
 
 V. Dunbar (67 Pa. St. 274) 379 
 
 Rice V. Austin (19 Minn. 103) 827 
 
 V. Des Moines (40 Iowa, 638) 164, 
 1040, 1052 
 V. Foster (4 Harr. (Del.) 479) 327 
 0. Keokuk (15 Iowa, 5791 165 
 
 V. Montpelier (19 Vt. 470) 1034 
 
 V. Osgood (9 Mass. 38) ' 645 
 
 V Shuey (5 N. W. R. 435) 166 
 
 V. Smith (9 Iowa, 570) 831, 912 
 
 V. State (3 Kan. 141) 368, 369, 430 
 
 Rich V. Chicago (59 111. 286) 304 
 
 Richards K.Daggett (4 Mass. 534) 216, 217 
 i;. Enfield (13 Gray, 344) 1024,1025 
 
 Richardson v. Baltimore (8 Gill, 433) 605, 
 
 899 
 V. Boston (24 How. 188) 139, 558 
 V. Boston (19 How. 270) 1077 
 
 V. Heydenfeldt (46 Cal. 68) 778 
 
 V. Scott (22 Cal. 150) 448 
 
 V. Spencer (6 Ohio, 13) 963 
 
 V. Turnpike Co. (6 Vt. 496) 719, 1048 
 
 Richland County i\ Lawrence County, 
 
 (12 111. 8) 76, 216 
 
 Richmond v. Courtney (32 Gratt. 
 
 792) 1037, 1039, 1041 
 
 V. Daniel (14 Gratt. 385) 763, 787 
 
 V. Judah (6 Leigh, 305) 944 
 
 V. Long (17 Gratt 375) 89, 949, 968, 
 
 980, 981, 983, 986 
 
TABLE OF CASES CITED. 
 
 XCV 
 
 Richmond v. Municipality (8 U. C. 
 
 Q. B. 5e7) 441 
 
 V. Eaikoad Co. (21 Gratt. 604) 76, 85, 
 
 732, 774, 787 
 
 V. Smith (15 Wall. 429) 4S6 
 
 V. State (5 Ind. 334) 668 
 
 Richmond Mayoralty Case (19 Gratt. 
 
 673) 81, 418 
 
 Richmond Gas Co. v. Middletown (59 
 
 N. r. 228) 125, 200, 690, 709 
 Richmond R. R. Co. v. Richmond (96 
 
 U.S. 521) 394,699,701,706 
 
 V. Richmond (10 Chi. L. N. 379) 701 
 Ricket V. Met. Railroad Co. (L. R. 2 
 
 H. L. 175) 1005 
 
 Riddle ». Bedford (7 S. & R. 386) 242, 259 
 
 V. Loclis &, Canals (7 Mass. 169) 195, 
 
 959, 960, 963, 964, 1033 
 
 Rideout v. School District (1 Allen, 
 
 232) 286 
 
 Ridge Ave. Ry. Co. v. Philadelphia 
 
 (10 Phila. 37) 896 
 
 Ridge Street m re (29 Pa. St. 391) 999 
 Ridgway ». West (60 Ind. 371) 370 
 
 Ridley D.Lamb (10 U.C. Q.B. 354) 723 
 Rieliat v. Goshen (42 Ind. 339) 1040 
 
 Eiggs V. Board of Education (27 Midi. 
 
 262) 643, 665 
 
 0. Johnson County (6 Wall. 166) 502, 
 842, 845. 847, 851, 871 
 0. Rochester (9 N. Y. 64) 560 
 
 V. St. Josepli (67 Mo. 491) 808 
 
 V. Telegraph Co. (47 Ind. 511) 907 
 Riley Co. v. Ward (N. W. R. (1 
 
 Ind. Supp. ) 20) 473 
 
 Rindge v. Colrain (11 Gray, 157) 1040 
 
 Ring V. Cohoes (77 N. Y. 83) 1023, 1035 
 
 V. Jolinson County (6 Iowa, 265) 220, 
 
 479 
 ». Schoenberger (2 Watts, 23} 643, 
 
 669 
 Ringland v. Toronto (23 U. C. C. P. 
 
 98) 1034 
 
 Ripley v. Gelston (9 Johns. 201) 941 
 
 Ripon V. Bittel (30 Wis. 6141 1040, 1041 
 
 V. Hobart (3 Mylne & K. 169) 384 
 
 ». School District (17 Wis. 83) 945 
 
 Risley v. St. Louis (34 Mo. 404) 599, 800, 
 
 801, 807 I 
 V. Smith (64 N. Y. 570) 822 ' 
 
 Ritchie v. Franklin Co. (22 Wall. 67) 610 
 Rivers v. Augusta (23 Alb. L. J. 17) 951 
 Road Case (17 Pa. St. 71) 303' 
 
 Road Case (S.& R. (Pa.) 447) 677 
 
 Uoad in Easton (3 Rawle (Pa.), 195) 677 
 Road in Milton (40 Pa. St. 300) 677 
 
 Road in re (17 Pa. St. 71) 327 
 
 Kobb V. Indianapolis (38 Ind. 49) 355 
 Robbins v. Chicago (4 Wall. 667) 1057, 
 
 1059 
 V. Chicago (2 Black, 418) 1059 
 
 ». County Court (3 Mo. 57) 487 
 
 V. Lexington (8 Cush. 292) 927 
 
 Roberto m re (0 Pet. 216) 819 
 
 1). Bolles 101 U. S. 119) 510,635 
 
 Roberts in re v. Brown Co. (21 Kan. 
 
 247) 621 
 
 V. Chicago (26 111. 249) 999, 1004 
 K. Easton (19 Ohio St. 78) 711 
 
 V. Karr (1 Canipb. 262) 627, 637 
 
 u. Mayor, etc. (5 Abb. Pr. 41) 910 
 V. Ogle (30 111. 459) 340, 375, 379, 
 
 Robertson v. Rockford (21 III. 451) 
 Roberaon v. Lambertville 38 N. J. L, 
 
 69) 
 Robie I). Sedgwick (35 Barb. 319) 
 Robins in re (7 Dowl. 566) 
 
 V. Railroad Co. (6 Wis. 636) 
 
 399 
 179 
 
 Robinson in re (12 Nev. 263) 
 V. Bidwell (22 CaJ. 379) 
 V. Burlington (50 Iowa, 240) 
 V. Butte Co. (43 Cal. 353) 
 V. Charleston (2 Rich. 317) 942, 
 V. City Council (2 liich. L. 317) 
 V. County (6 W. & S. 16) 
 K. Dodge (18 Johns. 351) 
 V. Groscourt (5 Mod. 104) 
 V. Hospital (21 E. L. & Eq. 371) 
 V. Jones (14 Fla. 254) 
 V. Lane (19 Ga. 337) 
 V. Mayor (1 Humph. 156) 
 V. Railroad Co. (48 Cal. 410) 
 V. Railroad Co. (27 Barb. 512) 
 ». Robinson (1 Duval, 162) 
 V. St. Louis (28 Mo. 488) 
 
 Roby V. Chicago (64 111. 477) 
 
 410 
 110 
 
 820 
 619, 
 621 
 727 
 179 
 945 
 848 
 
 , 946 
 943 
 928 
 778 
 362 
 884 
 889 
 200 
 363 
 
 1029 
 
 704 
 
 621 
 
 171, 448 
 
 412 
 
 Rocliedale w. Radcliffe (18 Q. B. 287) 670 
 Rochester w. ColUns (12 Barb. 559) 992 
 i>. Lee (15 Sim. 376) 205 
 
 B. Pettinger (17 Wend. 265) 391 
 
 V. Randall (105 Mass. 295) 243 
 
 V. Reg. (27 Law J. Q. B. 436) 831 
 I). Upman (19 Minn. 108) 766 
 
 Rochester White Lead Co. ». Roch- 
 ester (3 N. Y. 463) 984, 985, 992, 
 1066, 1075 
 Rochester Water Commrs. in re (66 
 
 N. Y. 413) 680, 582, 589, 692 
 Rock Creek «. Strong (96 U. S. 271) 510, 
 
 516 
 
 Rockford v. Hildebrand (61 111. 155) 1029, 
 
 1035, 1039, 1040, 1048 
 
 B. Tripp (83 111. 247) 1019, 1028 
 
 Rodman v. Musselman (12 Bush, .354) 130 
 
 Rofflgnao St. in re (4 Rob. (La.) 357) 601, 
 
 602 
 Rogan V. Watertown (30 Wis. 259) 70, 180, 
 
 183, 471 
 Rogers m re (7 Cow. 526) 282, 297, 300, 
 
 857, 869 
 ». Burlington (3 Wall. 654) 154, 155, 
 156, 157, 185, 189, 468, 482, 491, 
 501, 503, 509, 524, 543 
 V. Collier (43 Mo. 359) 124 
 
 V. Greenbush (58 Me. 390) 941 
 
 V. Jones (5 D. & R. 484) 315 
 
 V. Jones (1 Wend. 237) 340, 368, 392, 
 
 414 
 
XCVl 
 
 TABLE OF CASES CITED. 
 
 Rogers in re v. Lee County (1 Dillon, 
 
 C. C. R. 5-29) 487 
 
 V. People (68 111. 154) 31, 8J2 
 
 V. St. Cliarles (54 Mo. 229) 612 
 
 Roll V. Augusta (34 Ga. 326) 704, 999, 
 
 1003, 1068 
 
 K.Indianapolis (52 Ind. 547) 1076,1077 
 
 Roman «. Strauss (10 Md. 89) 659 
 
 Roman Catholic, etc. v. Baltimore (6 
 
 Gill, 3941 324 
 
 Rome V. Cabot (28 Ga. 50) 173 
 
 V. Jenkins (30 Ga. 154) 608 
 
 V. Omberg (28 Ga. 4«) 999, 1003 
 
 Rome Railroad Co. v. Rome (14 Ga. 
 
 275) 787 
 
 Romeo V. Cliapman (2 Midi. 179) 208 
 Rooney v. Supervisors (40 Wis. 23) 1055 
 Roosevelt «. Draper (23 N. Y. 318) 898, 
 
 910, 913 
 
 Root V. Shields (Woolw. C. C. 340) 657 
 
 Rose y. Groves (Sin. &G. 613) 724 
 
 V. St. Charles (49 Mo. 609) 1065 
 
 V. Turnpike Co. (3 Watts, 46) 195 
 
 Rosebaugh v. Saffin (10 Oliio, 31) 19,349, 
 
 361 
 Rosenberg v. Des Moines (41 Iowa, 
 
 415) 1052 
 
 Rossu. Butler (19 N.J. Eq. 294) 379 
 
 V. Clinton (46 Iowa, 606) 1071 
 
 V. Curtis (31 N. Y. 600-) 547 
 
 V. Madison (llnd.281) 314, 445,1066, 
 
 1077 
 
 u. St. Cliarles (49 Mo. 509) 424, 640, 
 
 1065, 1066 
 
 Rossin V. Wiilker (6 Gmnt (Can.),619) 661 
 
 Rossire v. Bosl.on (4 Allen, 57) 558 
 
 Roswell V. Trior (1 Salic. 460) 377 
 
 Rounds V. Mansfield (38 Me. 686) 177, 265 
 
 V. Muiiiford (2 K. I. 154) 412, 995, 
 
 999, 1004 
 
 V. Stetson (15 Me. 596) 177 
 
 V. Stratford (26 U. C. C. P. 11) 1027, 
 
 1028 
 
 Roundlree i>. Galveston (42 Tex. 626) 778 
 
 Rowan v. Portland (8 B. Mon. 232) 638, 
 
 660, 667, 671, 673 
 
 Rowe I'. Addison (.14 N. H. 306) 985 
 
 «. Leeds (13 U. C. Q.B. 575) 1011 
 
 V. Portsmouth (22 Am. Rep.464) 1005, 
 
 1072, 1074 
 
 ». Portsmouth (56 N. H. 291) 1005, 
 
 1072, 1074 
 
 V. Portsmouth (3 Am. Law T. 
 
 482) 1072 
 
 V. Rochester (29 U. C. Q. B. 690) 936, 
 
 1070 
 
 Rowell V. Lowell (7 Gray, 100) 1018, 1022, 
 
 1024, 1025, 1041 
 
 V. Montville (4 Me. 270) 641 
 
 V. Williams (29 Iowa, 210) 979, 1037, 
 
 1049, 1055, 1058, 1061 
 
 Rowley v. London, etc. Ry. Co. (L. R. 
 
 8 Ex. '221) 1042,1043 
 
 Roxbury v. Railroad Co. (6 Cush. 
 
 424J 702, 1064 
 
 Royal Bank, etc. v. Turquand {8 El. 
 
 &B1. 325) 610,513 
 
 Rubey «. Shain (54 Mo. 207) 911 
 
 Rudolphe v. New Orleans (11 La. An. 
 
 242) 983, 1004 
 
 Ruggles V. Collier (43 Mo. 359) 123 
 
 V. Nantucket (11 Cflsh. 433) 124, 955 
 Ruhlman v. Conmionwealth (5 Binn. 
 
 26) 604, 923 
 
 Rulison V. Post (79 111. 567) 331 
 
 Humsey v. Campton (16 N. H 667) 223 
 Kundle v. Baltimore (28 Md. 356) 928 
 u. Del. etc. Co. (1 Wall. Jr. "275) 75 
 Rung «. Shoenberger (2 Watts (Pa.), 
 
 * 23) 672 
 
 Runnion v. Coster's Lessee (14 Pet. 
 
 122) 561 
 
 Runyon v. Bordine (2 Green (N. J.), 
 
 472) 655, 667, 658 
 
 Ruppert V. Baltimore (23 Md. 184) 476 
 
 Rusch V. Davenport (6 Iowa, 443) 1024, 
 
 1037, 1041 
 
 Rush V. Des Moines County (1 Woolw. 
 
 C. C. 313) 21 
 
 Riiskin V. St. Joseph (11 Am. Rep. 
 
 463) 1075 
 
 Russ V. Mayor (12 N. Y. Leg. Obs. 
 
 38) 334 
 
 Russell V. Burlington (."0 Iowa, 262) 1001 
 
 I). Chicago (22 III. 285) 239 
 
 V. Devon County (2 T. Rep. 661) 960, 
 
 963, 1036 
 
 V. New York (2 Deiiio, 461) 954, 956, 
 
 957, 978 
 
 V. Sieiiben (57 III. 35) 1009, 1038 
 
 V. The Swift (Newb. R. 653) 137 
 
 Rutherford «. Taylor (38 Mo. 315) 626, 
 
 644, 647, 660 
 
 Rutherford's Case (72 Pa. 82) 592 
 
 Rutter «. Cliiipman (8 M. & W. 1) 46 
 
 Ryan v. Copes (11 Rich. Law, 217) 378 
 
 f. County (14 III. 83) 811 
 
 Ryder ii. Railroad Co. (13 111. 523) 110 
 
 Rye V. Peterson (45 Tex. 312) 378, 400, 
 
 402 
 Rylands ». Fletcher (8 H. L. C. 330) 1070 
 
 Sackett, etc. Streets in re (74 N. Y. 
 
 95) 653, 744 
 
 Sacramento v. Crocker (16 Cal. 119) /752, 
 
 789 
 V. Kirk (7 Cal. 419) 445, 446, 533 
 V. Steamer (4 Cal. 41) 140 
 
 Sadler v. Evans (4 Burr. 1984) 259 
 
 Saffield V. Hathaway (44 Conn. 521 ) 174 
 SafEord v. Drew (3 Duer, 627) 1043 
 
 San Diego v. Railroad Co. (44 Cal. 
 
 106) 576, 577 
 
 St. Catharines v. Gardner (20 U. C. C. 
 
 P. 107) 661 
 
 St. Charles w. Meyer (58 Mo. 86) 367, 403, 
 
 413 
 V. Nolle (51 Mo. 122) 855, 675, 680, 
 
 729 
 V. Powell (22 Mo. 526) 66S 
 
TABLE OF CASES CITED. 
 
 XCVU 
 
 St. Cliarles v. Kogers (49 Mo. 530) 924 
 St. Clair Co. v. Keller (85 111. 396) 819 
 St. George's Vestry v. Sparrow (16 
 
 C. B.N. S. 209). 726 
 
 St. Helens v. St. Helens (L. R. 1 
 
 Exch. 196) 376 
 
 St. John V. East St. Louis (50 111. 92) 754 
 
 V. McParlan (33 Mich. 72) 400 
 
 «. New York (U Duer, 315) 885 
 
 1-. New York (3 Bosw. 483) 387, 722 
 
 St. Joseph ,. Anthony (30 Mo. 537) 807 
 
 St. Joseph Asylum i'n re (69 N. Y. 
 
 .353) 777 
 
 V. Hamilton (43 Mo. 282) 601 
 
 V. O'Donoglme (31 Mo. 345) 741, 775 
 
 V. Kailroad Co (39 Mo. 476) 784 
 
 V. Rogers (16 Wall. 644) 64, 185, 188, 
 
 490, 504, 509, 514, 524, 640, 542, 
 
 648 
 
 V. Sayville (39 Mo. 460) 784 
 
 St. Louis V. Alexander (23 Mo. 483) 63, 
 
 112, 115. 188, 189, .342, 546 
 
 V. Allen (13 Mo. 400) 44, 88, 213, 793, 
 
 812, 813 
 
 V. Allen (53 Mo. 44) 752, 753, 810 
 
 V. Armstrong (56 Mo. 298) 462 
 
 V. Bentz (11 Mo, 61) 332, 368, 398 
 
 V. Boatmen's Ins. Co. (47 Mo. 
 
 1.50) 766 
 
 V. Boffinger (19 Mo. 13) 323, 373 
 
 V. Buclier (7 Mo. App. 169) 766 
 
 V. Cafferata (24 Mo. 94) 332, 367, 397 
 V. City Railroad Co. (50 Mo. 94) 785 
 B. Cleland (4 Mo. 84) 4-55 
 
 V. Clemens (52 Mo. 133) 123, 741, 778, 
 
 809 
 V. Clemens (43 Mo. 395) 123 
 
 V. Clemens (36 Mo. 467) 742,796,797, 
 806, 807, 810 
 V. Clements (49 Mo. 552) 743, 796 
 V. Coons (37 Mo. 44) 808 
 
 V. l)e Noue (44 Mo. 136) 807, 810 
 V. Eters (.36 Mo. 466) 123 
 
 V. Ferry Co. (11 Wall. 423) 783, 785 
 V. Fitz (53 Mo. 582) 333, 409 
 
 V. Foster (52 Mo. 613) 304, 323, 325, 
 342, 343 
 V. Gorman (29 Mo. 593) 558 
 
 V. Gas Co. (5 Mo. App. 484) 436 
 
 V. Green (7 Mo. App. 468) 868 
 
 V. Grove (46 Mo. 674) 360 
 
 V. Gurno (12 Mo. 414) 683, 1000, 1003, 
 
 1071 
 V. Insurance Co. (49 Mo. 393) 774 
 V. Insurance Co. (47 Mo. 146) 788 
 V. Jackson (26 Mo. 37) 385, 389 
 
 V. Laughlin (49 Mo. 559) 731, 789 
 ». McCoy (18 Mo. 238) 373 
 
 n. Merton (6 Mo. 476) 676 
 
 V. Newman (45 Mo. 138) 668 
 
 V. Russell (9 Mo. 503) 44, 88, 213,793, 
 812, 813 
 V. Schnuckelburg (7 Mo. App. 
 
 536) 922 
 
 V. Schueneman (62 Mo. 348) 809 
 
 St. Louis i;. Shields (52 Mo. 351) 84, 95, 139 
 V. Shields (62 Mo. 247) 61, 62, 69 
 V. Smith (10 Mo. 4.38) 408, 409 
 
 V. Smith (2 Mo. 113) 366 
 
 V. Steinberg (4 Mo. App. 453) 789 
 V. Steinberg (69 Mo. 289) 739 
 
 V. Weber (44 Mo. 647) 333, 338, 385, 
 
 889 
 II. Wiggins Ferry Co. (40 Mo. 580) 783, 
 
 785 
 V. Woodruff (4 Mo. App. 169) 359 
 St. Louis County Court v. Sparks (10 
 
 Mo. 117) 834 
 
 St. Louis Gas Co. v. St. Louis (46 Mo. 
 
 141) 213 
 
 St. Louis Hospital v. Williams (19 
 
 Mo. 609) 207 
 
 St. Louis Public Schools v. St. Louis 
 
 (26 Mo. 468) 776 
 
 St. Luke's Church v. Slack (7 Gush. 
 
 226) 819, 855 
 
 St. Mary's v. Jacobs (L. R. 7 Q. B. 
 
 53) 627 
 
 St. Paul V. Coulter (12 Minn. 41) 71, 337, 
 
 338, 339, 385, 389 
 
 V. Kirby (8 Minn. 154) 1037 
 
 V. Laidler (2 Minn. 190) 889 
 
 V. Marvin (16 Minn. 102) 924 
 
 0. Seitz (3 Minn. 297) 1037, 10.54, 1067 
 
 0. Treager (26 Minn. 248) 857, 858, 
 
 361, .391 
 
 V. Troyer (3 Minn. 291 ) 865 
 
 St. Peter v. Bauer (19 Minn. 327) 418, 424, 
 
 433 
 V. Dennison (58 N. Y. 416) 996, 998 
 St. Peter's Church u. Scott Co. (12 
 
 Minn. 395) 773 
 
 Salem v. Railroad Co. (98 Mass. 431) 167, 
 
 375, 379 
 Salem Mill Dam f. Ropes (6 Pick. 23) 41 
 Saline Co. v. Anderson (20 Kan. 298) 259 
 Salsbury v. Herclienroden (106 Mass. 
 
 458) 10.32 
 
 V. Philadelphia (44 Pa. St. 308) 455 
 Salter B. Reed (16 Pa. St. 260) 816 
 
 Saltonstall v. Banker (8 Gray, 196) 379 
 Samis v. King (40 Conn. 298) 226, 239, 
 259, 809, 884 
 Sampson v. Goochland Justices (6 
 
 Gratt. (Va.) 241) 640, 720 
 
 Sams V. Toronto (9 U. C. Q. B. 181) 207 
 
 Samuels v. Nashville (8 Sneed, 298) . 644 
 
 Samyn v. McCloskey (2 Ohio St. 636) 1061 
 
 San Antonio v. Barnes (90 U. S. 315) 610 
 
 V. Gould (34 Texas, 76) 455 
 
 V. Jones (28 Tex. 19) 180 
 
 V. Lane (32 Tex. 405) 499, 561 
 
 V. Lewis (15 Tex. 388) 647 
 
 V. Lewis (9 Tex. 69) 313, 440 
 
 V. Mehaffy (96 U. S. 312) 510 
 
 Sanborn ». Deerfield (2 N. H. 253) 41 
 
 Sanbornton v. Tilton (56 N. H. 603) 216 
 
 V. Tilton (53 N. H. 488) 216 
 
 Sanders n. McLin (1 Ired. (N. C.) Law, 
 
 572) 769 
 
 VOL. I. 
 
 ff 
 
XCVIU 
 
 TABLE OF CASKS CITED. 
 
 Sanderson v. Cross (10 Wis. 282) 782 
 Sanford v. Augusta (32 Me. 536) 1015, 
 
 1042 
 
 i>. Tremlett (42 Mo. 384) 220 
 
 Sands v. Richmond (31 Gratt. 571) 744, 
 
 747, 750 
 San Francisco i>. Calderwood (31 Cal. 
 
 585) 558, 634 
 
 0. Canavan (42 Cal. 641) 75, 86, 93, 
 630, 631, 634, 636, 647, 823 
 V. Hazen (5 Cal. 169) 295 
 
 V. Kinsman (51 Cal. 92) 809 
 
 V. O'Neil (51 Cal. 91 ) 809 
 
 V. Real Estate (42 Cal. 517) 105 
 
 u. S. V. W. W. (48 Cal. 493) 66, 69, 
 632, 662, 665 
 San Francisco Gas. Co. ». San Fran- 
 cisco (9 Cal. 453) 454, 460 
 Sangamon Co. o. Springfield (63111.66) 76, 
 84, 85, 92, 214, 456, 937, 938 
 Sanger v. Commrs. (25 Me. 2911 856 
 San Jose w. Railroad Co. (53 Cal. 476) 789 
 Santo V. Iowa (2 Iowa, 165) 327 
 Sargent v. Bank (4 McLean, 339) 626 
 u. Cornish (54 N. H. 18) 561, 562, 569 
 V. Railroad Co. (1 Handy, 
 
 Oliio, Sup. C. 52) 715 
 
 Sarnia v. Railway Co. (21 U. C. Q. B. 
 
 62) 661, 662 
 
 Sater v. Plank-road Co. (1 Iowa, 393) 620, 
 
 621 
 
 Satterlee v. Mathewson (2 Pet. .S80) 541 
 
 V. San Francisco (23 Cal. 214) 574, 
 
 938 
 Sauk V. Philadelphia (1 Pa. Leg. Gaz. 
 
 259) 303 
 
 Saulet V. New Orleans ( 10 La. An. 81 ) 629, 
 
 637, 639 
 Sault Ste. Marie Co. ». Van Deusen 
 
 (40 Mich. 429) 460, 485 
 
 Saunders v. Haynes (13 Cal. 145) 224 
 
 Savacool v. Boughton (5 Wend. 170) 264 
 
 Savage v. Banaror (40 Me. 176) 1021, 1025 
 
 V. Gulliver (4 Mass. 178) 923 
 
 Savannah v. Charlton (36 Ga. 460) 356, 357 
 
 ti. (Mullens (38 Ga. 334) 993 
 
 w. Hartridge(37 Ga. 113) 621 
 
 V. Hartridge (8 Ga. 23) 763, 783 
 
 r. Hussey (21 Ga. 80) 368, 425 
 
 V. Savannah (45 Ga. 602) 696 
 
 V. State (4 Ga. 26) 865 
 
 u. Steamboat Co. (R. M. Charlt. 
 
 342) 112, 661 
 
 V. Waldner (49 Ga. 316) 1032, 1054, 
 
 10.56 
 
 V. "Wilson (49 Ga. 476) 657 
 
 Savings Assoc, v. Topeka (3 Dill. 376) 68, 
 
 187, 190 
 Savings Bank v. Winchester (8 Allen, 
 
 109) 442 
 
 Savings Fund v. Philadelphia (31 Pa. 
 
 St. 175) 76, 125 
 
 Saw-mill Run Bridge in re (85 Pa. St. 
 
 163) 746 
 
 Sawyer v. Alton (4 III. 130) 676, 761 
 
 Sawyer v. Corse (17 Gratt. 230) 986 
 
 V. Northfield (7 Cush. 490) 932, 1064 
 
 B. Williams (26 Vt. 311) 217 
 
 Saxton V. Beach (50 Mo. 488) 292, 324, 
 
 456,806 
 
 V. St. Joseph (60 Mo. 153) 324 
 
 Saylor v. Harrisburg (87 Pa. St.. 216) 984 
 
 Sayre v. Tompkins (23 Mo. 443) 907, 911 
 
 Scadding v. Lnrant (5 Eng. Law & 
 
 Eq. 16) 293, 301 
 
 ». Lorant (17LawT. 225) 301 
 
 Scales v. Chattahoochee Co. (31 Ga. 
 
 225) 31 
 
 Scajnmon v. Chicago (42 III. 192) 796 
 
 V. Chicago (25 111. 424) 657, 1055, 
 
 1056, 1057 
 
 V. Chicago (40 111. 146) 763, 801 
 
 1). Scammon (28 N. H. 429) 307 
 
 Seaming v. Conger (3 Leon. 7) 317 
 
 Schaefler v. Sandusky (33 Ohio St. 
 
 246) 1019, 1020, 1022 
 Schaffer v. Cadwallader (36 Pa. St. 
 
 126) 572, 842 
 
 Schamm v. Seymour (24 N. J. Eq. 371) 806 . 
 Sehanck v. Mayor (69 N. Y. 440) 122 
 
 Schattner o. Kansas City (53 Mo. 162) 68.3, 
 lOOU, 1068 
 Schenck v. Peay (1 Bill. C. C. R. 267) 298 
 V. Supervisors (5 Wall. 772) 548 
 
 Schenley v. Alleghany (25 Pa. St. 128) 610, 
 
 740, 744 
 
 V. Commonwealth (36 Pa. St. 29) 105, 
 
 124, 633, 638, 779, 794, 795, 808, 
 
 809 
 
 Schofield V. Lansing (17 Mich. 437) 778 
 
 School in re (47 N. Y. 556) 324 
 
 i>. Canal (9 Ohio, 203) 195 
 
 School Com. V. Dean (2 Stew. & P. 
 
 190) 60 
 
 School Directors a. Anderson (45 Pa. 
 
 St. 388) 818 
 
 V. Dunkelberger (6 Pa. St. 31) 567 
 V. Goerges (50 Mo. 194) 667, 673 
 
 School District v. Atherton (12 Met. 
 
 105) 246, 286, 288, 308, 311, 312, 
 «. Blakeslee 206, 287, 316 
 
 «. Gage (39 Mich. 328) 130 
 
 V. Insurance Co. (101 U. S. 707) 66 
 V. Lord (44 Me. 374) 316 
 
 V. Richardson (23 Pick. 62) 216 
 
 I). Tapley (1 Allen, 49) 216 
 
 ^. Thompson (5 Minn. 280) 480 
 
 V. Wood (13 Mass. 193) 41 
 
 Schoonmaker v. Church (5 How. 
 
 (N. Y.) Pr. 265) 637 
 
 Schott V. People (89 111. 195) 415 
 
 Schroder v. City Council (2 Const. 
 
 Rep. 726) 346, 417 
 
 Sehuehardt i: New York (53 N. Y. 202) 622 
 Schultze V. Milwaukee (5 N. W. Rep. 
 
 342) 987 
 
 Schumacher v. St. Louis (3 Mo. App. 
 
 297) 1000 
 
 Schumm v. Seymour (24 N. J. Eq. 
 
 143) 289, 921 
 
TABLE OF CASES CITED, 
 
 XClX 
 
 Schurmeier b. Bailroad Co. (10 Minn. 
 
 82) 6'25, 626, 628, 664 
 
 Schuster v. State (48 Ala. 199) 380 
 
 Schuyler v. Farwell (25 111. 81) f42 
 
 Schuyler Co. v. People (15 111. 181) 191 
 V. Thomas (98 U. S. 169) 610 
 
 Schwab V. Madison (49 Ind. 829) 346 
 
 Schwartz o. Flatboats (14 La. An. 243) 778 
 Schwuchow V. Chicago (68 111. 444) 363 
 Scipio S.Wright (101 U. S. 665) 180 
 
 Scircle ». Neevis (47 Ind. 289) 238, 239 
 Scofield i>. School District (27 Conn. 
 
 499) 166, 910 
 
 Scotland Co. u. Thomas (94 U. S. 682) 610, 
 
 536 
 
 Scott V. Chicago (1 Bissell, 510) 720, 721 
 
 V. Des Moines (34 Iowa, 652) 676 
 
 B. Frith (4 F. & F. 349) 378 
 
 ». Manchester (37 Eng. L. & £q. 
 
 495) 985 
 
 V. Manchester (1 H. & N. 59) 985, 987, 
 
 989 
 
 V. Manchester (2 H. & N. 204) 987, 
 
 989, 992, 995 
 
 ScovU V. Cleveland (1 Ohio St. 126) 111, 
 
 293, 610, 729, 748, 796 
 
 V. Giddings (7 Ohio, pt. 2, 211) 1002 
 
 Scrafford v. Gladwin Co. (41 Mich. 
 
 647) 887 
 
 Scranton v. Dean (2 W. N. C. 467) 1019 
 Scroggie v. Guelph (36 U. C. Q. B. 
 
 534) 1074 
 
 Scudder «. Trenton (Saxt. 694) 596 
 
 Scully & OXeary in re (11 Chicago 
 
 Legal News, 27) 420 
 
 Seagraves v. Alton (13 111. 371) 456 
 
 Seale o. Mitchell (5 Cal. 403) 418 
 
 Seaman v. New York (3 Daly, 147) 141 
 0. New York (21 All). L. J. 273) 950 
 Seamen v. Patten (2 Caines, 312) 260 
 Seamen's Hosp. v. Liverpool (4 Exch. 
 
 180) 405 
 
 Sears v. Dennis (105 Mass. 310) 1022 
 V. West (1 Murph. 291) 356, 789 
 
 Seattle v. Tyler (Wash. Ty. 1877) 54 
 Second Bank v. Danville (60 Ind. 504) 146 
 Secord v. Great Western'Railway Co. 
 
 (15U. C. Q. B. 631) 1042 
 
 Secretary v. McGarrahan (9 Wall. 
 
 298) 826,850,872,874 
 
 Sedberry o. Commrs. (66 N. C. 486) 819, 
 
 869, 871 
 
 Sedgwick Co. v. Bailey (13 Kan. 600) 71, 
 
 V. Bailey (11 Kan. 631) 86, 214 
 
 Seebold v. People (86 111. 33) 115 
 
 V. Shltler (34 Pa. St. 133) 560, 647 
 
 Seeley v. Pittsburgh (82 Pa. St. 360) 744, 
 
 746, 757, 758, 759, 804, 805 
 
 Seibricht !>,-New Orleans (12 La. An. 
 
 481) 455, 469 
 
 Seiple w.ailizabeth City (3 Dutch. 
 
 •407) 127, 243 
 
 Selectmen v. Spaulding (8 La. An. 87) 789 
 Sellick V. South Norwalk (40 Conn. 
 
 359) 229 
 
 Selraa «. Mullen (46 Ala. 411) 2?4, 44.5 
 Selma, etc. Co. in re (46 Ala. 596) 181 
 Selma & Gulf Bailroad in re (46 Ala. 
 
 230) 823, 827, 868 
 
 SemmesK. Columbus (19 Ga. 471) 470 
 Serrot v. Omaha (1 Dillon, C. C. E. 
 
 312) 1047, 1048, 1052 
 
 Serrill v. Philadelphia (38 Pa. St. 355) 793 
 
 Sessions v. Newport (23 Vt. 9) 1034 
 
 Severin v. Eddy (52 111. 189) 1058, 1061 
 
 Severy u. Railroad Co. (51 Cal. 194) 660 
 
 Sewalli). Cohoes (76N. Y. 45) 1026 
 
 ... St. Paul (20 Minn. 611) 753, 762, 
 
 767, 800, 971, 974, 980 
 
 Seward v. Milford (21 Wis. 485) 1026, 
 
 1039, 1040 
 
 Sexton V. Beach (60 Mo. 488) 475, 477 
 
 V. St. Joseph (60 Mo. 153) 292, 466, 
 
 474, 475, 477, 986 
 
 Seybell b. Nat. Bank (54 N. Y. 288) 553 
 
 Seybert v. Pittsburg (1 Wall. 272) 154, 
 
 155, 189, 482, 501 
 
 Shackford v. Newington (46 N. U. 
 
 415) 178 
 
 Sliafer o. Mumma (17 Md. 331) 236, 236. 
 
 369, 381, 398, 406, 418, 419 
 
 Shaffner v. St. Louis (31 Mo. 264) 596, 
 
 597, 598, 608 
 
 Sliallcross v. Jeffersonville (27 Ind. 
 
 193) 143 
 
 Shannon v. O'Boyle (51 Ind. 565) 470, 570 
 
 V. Portsmouth (54 N. H. 483) 272 
 
 Shapleigh v. Pillsbury (1 Me. 271) 645 
 
 Sharon Iron Co. v. Erie (41 Pa. St. 
 
 341) 671 
 
 Sharp V. Dunoven (17 B. Mon. 223) 790 
 
 Sliarp in re (56 N. Y. 267) 797, 798 
 
 V. Johnson (4 Hill, 92) 698, 763, 818 
 
 V. Spier (4 Hill, 76) 698, 763, 775, 813 
 
 Sharpe e. St. Louis, etc. li. W. Co. 
 
 (49 Ind. 2961 662 
 
 Sharpless v. Mayor (21 Pa. St. 147) 179, 
 183, 188, 491, 728, 791 
 V. West Chester (1 Grant (Pa.), 
 
 257) 614 
 
 Sharrett's Uoad (8 Pa. St. 89) 677 
 
 Shartle v. Minneapolis (17 Minn. 308) 640, 
 
 1037, 1041 
 
 Shattuck 0. Woods (1 Pick. 175) 257 
 
 Shaver v. Starrett (4 Ohio St. 494) 612 
 
 Shaw ».• Charlestown (3 Allen, 538) 608 
 
 V. Crocker (42 Cal. 435) 1001 
 
 V. Dennis (10 III. 405) 180, 729 
 
 V. Hill (67 111. 456) 236 
 
 V. Kennedy (Term R. 158) 352 
 
 i>. Mayor (19 Ga. 468) 258,924,926 
 
 V. Mayor (21 Ga. 280) 258 
 
 V. Norwalk, etc. (5 Gray, 180) 541 
 
 17. Pickett (26 Vt. 486) 810 
 
 V. Thompson (L. R. 3 Ch. 233) 225 
 
 Shawbut «. Railroad Co. (21 Minn. 
 
 502) 656, 658, 660 
 
 Shawnee Co. v. Carter (2 Kan. 115) 463 
 
 Shawneetown v. Mason (82 111. 337) 999, 
 
 1008, 1069, 1071 
 
TABLE OF CASES CITED. 
 
 Shea V. Lowell {8 Allen, 136) 1020 
 
 ». Railroad Co. (44 Cal. 414) 712 
 
 Sheafe v. People (87 111. 189) 631 
 
 Shearman v. Carr (8 It. I. 431) 911 
 
 8heehan v. Gleason (46 Mo. 100) 123 
 
 V. Good Samaritan Hospital (50 
 
 Mo. 155) 775, 776 
 
 Sheel V. Appleton (3 N. W. R. 26) 937 
 
 Sheffield i;. Andress (56 Ind. 157) 31, 146, 
 
 482 
 
 V. Watson (2 Caines, 69) 263 
 
 Sheldon v. Kalamazoo (24 Mich. 383) 974, 
 
 980 
 V. School District (25 Conn. 224) 121, 
 
 919 
 Shelby County v. Railroad Co. (5 
 
 Bush, 225) 101, 729 
 
 V. Railroad Co. (8 Bush, 300) 95, 530, 
 
 533 
 
 V. Railroad Co. (8 Bush, 209) 825 
 
 Shelton o. Mobile (30 Ala. 514) 388, 891, 
 
 414, 679 
 
 Shepherd v. Chelsea (4 Allen, 113) 1022 
 
 V. Municipality (6 Rob. La. An. 
 
 349) 139 
 
 Shepardson v. Colerain (18 Met. 55) 1024, 
 
 1020, 1034 
 
 Sheridan v. Colvin (78 111. 2-37) 121, 230 
 
 Sherlock v. Bainbridge (41 Ind. 35) 136, 
 
 137 
 
 V. Winnetka (59 111. 389) 902, 911, 917 
 
 V. Winnetka (68 III. 5S0) 488, 754 
 
 Sherman v. Carr (8 R. I. 431) 174 
 
 V. Granada (51 Miss. 18B) 951, 973 
 
 V. KortriglU (-52 Barb. 267) 1028 
 
 V. McKeon (38 N. Y. 26B) 632,662, 663 
 
 Sherbourne v. Yuba Co. (21 Cal. 113) 961, 
 
 962, 963, 983 
 
 Sherrard v. Lafayette Co. (3 Dill. C. 
 
 C. R. 236) 537 
 
 Sherwin v. Bugbee (16 Vt. 439) 110, 111, 
 
 120, 287, 288 
 
 V. Bugbee (17 Vt. 337) 286 
 
 Sherwood v. Hamilton (37 U. C. Q. 
 
 B. 410) 1018, 1023, 1035, 1049 
 Shillito V. Tliompson (L. R. 1 Q. B. 
 
 112) 392 
 
 Shinbone v. Randolphe Co. (56 Ala. 
 
 183) 840 
 
 Shinkle v. Covington (1 Bush, 617) 141 
 Shipley v. Associates (101 Mass. 251) 1021 
 V. Fifty Associates (106 Mass. 
 
 194) 1032, 1061 
 
 V. Railroad Co. (34 Md. 336) 621 
 
 Shipraan v. State (43 Wis. 381) 452 
 
 Shirk V. Pulaski (4 Dill. 209) 155, 480, 485, 
 
 486, 600 
 Shirley v. Lunenburg (11 Mass. 379) 430 
 Shoalwater v. Armstrong (9 Humph. 
 
 217) 769 
 
 Shoemaker o. Commissioners (36 Ind. 
 
 175) 942, 945 
 
 V. Goshen (14 Ohio St. 587) 544, 548 
 Shoolbred v. Charleston (2 Bay (S. 
 
 C), 63) 824 
 
 Short V. New Orleans (4 La. An. 281) 484 
 Shorter v. Rome (52 Ga. 621) 510 
 
 Shotwell V. Mott (2 Sand. Ch. 46) 568 
 Shrader in re (33 Cal. 279) 172, 372 
 
 Shreveport v. Jones (26 La. An. 708) 731 
 V. Levy (26 La. An. 671) 397 
 
 V. Walpole (22 La. An. 526) 670 
 
 Shrewsbury v. Brown (25 Vt. 197) 455 
 Shriver v. Pittsburgh (66 Pa. St. 446) 788 
 Shuey v. U. S. (92 U. S. 73) 165 
 
 Sibley v. Mobile (3 Woods, 635) 179 
 
 Siebenhauer in re (14 Nev. 365) 113 
 
 Biebrecht v. New Orleans (12 La. An. 
 
 . 496) 436, 451 
 
 Sights V. Yarnalls (12 Gratt. (Va.) 
 
 292) 766, 825 
 
 Sikes «. Hatfield (13 Gray, 347) 449, 461 
 
 B. Ransom (6 Johns. 279) 818 
 
 Sill V. Corning (16 N. Y. 297) 214, 340, 
 
 431 
 V. Lansingburg (16 Barb. 107) 570, 570 
 Silliman v. Wing (7 Hill, 159) 941 
 
 Silver Lake Bank v. North (4 Johns. 
 
 Ch. 373) 453 
 
 Silverthorn v. Railroad Co. (33 N. J. 
 
 L. 372) 820 
 
 V. Railroad Co. (83 N. J. L. 173) 868 
 
 Simar v. Canaday (63 N. Y. 298) 587 
 
 Simmons i>. Camden (26 Ark. 276) 1000 
 
 V. Camden (7 Am. Rep. 20) 1000 
 
 t>. Cornell (1 R. I. 519) 670, 672 
 
 V. Gardner (6 R. I. 255) 801 
 
 V. Mumford (2 R. I. 172) 602 
 
 V. Nahant (3 Allen, 316) 216 
 
 V. Providence (12 R. I. 8) 1002 
 
 V. State (12 Mo. 268) ' 789 
 
 Simplot V. Dubuque (49 Iowa, 630) 558, 
 
 668, 674 
 
 Simpson v. Savage (1 Mo. 359) 113 
 
 Sims V. Butler Co. (49 Ala. 110) 1009 
 
 V. Chattanooga (1 Lea, 694) 6B8, 669, 
 
 670, 671, 674 
 
 V. Est. Co. (14 L. T. N. S. 65) 178 
 
 Singleton i>. Eastern, etc. Railway Co. 
 
 (7 C. B. N. S. 287) 1023 
 
 Sixth Ave. Railroad Co. v. Kerr (72 
 
 N. Y. 330) 682 
 
 w. Kerr (45 Barb. 68) 711 
 
 Skeen v. Lynch (1 Rob. (Va.) 186) 637 
 Skerritt's Case (2 Par. (Pa.) 616) 226 
 Skinkle v. Covington (1 Bush, 617) 987 
 Skinner v. Bridge Co. (29 Conn. 623) 1000 
 V. Hutton (33 Mo. 244) 676, 761 
 
 Skinner's Co. v. Irish Soc. (12 CI. & 
 
 F. 487) 900 
 
 Slack V. Railroad Co. (13 B. Mnn. 1) 121, 
 
 164, 179, 731 
 
 V. East St. Louis (86 III. 377) 1000 
 
 Slater «. Wood (9 Bosw. 15) 235, 236 
 
 Slatten v. Railroad Co. (29 Iowa, 148) 699, 
 
 700. 706, 711 
 
 Slattery in re (3 Ark. 484) 418, 428 
 
 Slaughter ti. Commonwealth (13 Gratt. 
 
 707) 356, 730, 740 
 
 V. People (^ Doug. 334) 370 
 
TABLE OF CASES CITED. 
 
 CI 
 
 Slaughter House Cases (16 Wall. 36) 363, 
 
 «93 
 Slee V. Bloom (o Johns. Ch. 866) 245 
 
 Sleeper v. Bullen (6 Kan. 300) 474, 476, 
 
 920 
 V. Sandowne (52 N. H. 244) 1040 
 Sloan I). McConahy (4 Ohio, 157) 568 
 0. State (8 Blackford, 361) 76, 111 
 Slusser v. Burlington (42 Iowa, 378) 807 
 Small V. Danville (51 Me. 359) 89, 979 
 Sraalley v. Railway Co. (2 H. & N. 
 
 158) 607 
 
 Smead t>. Railroad Co. (11 Ind. 104) 451, 
 
 468 
 
 Smelson i: State (16 Ind. 29) 946 
 
 Smeltzer v. White (d2 U. S. 390) 219 
 
 Smith in re (52 N. Y. 526) 324, 779 
 
 (Hempstead, 201) 367 
 
 V. Aberdeen (25 Miss. 458) 610, 731, 
 
 748 
 o. Adrian (1 Mich. 495) 214 
 
 V. Albany (61 N. Y. 444) 271, 439 
 V. Appleton (19 Wis. 468) 94, 200 
 V. Bank (17 Mich. 479) 940 
 
 V. Barrett (1 Sid. 162) 570 
 
 V. Cheshire (13 Gray, 318) 120, 480, 
 
 481 
 V. Cincinnati (4 Ohio, 500) 1002 
 
 V. Clark Co. (54 Mo. 58) 510, 536, 538 
 V. Commonwealth {41 Pa. St. 335) 253 
 I/. County (54 Mo. 58) 653 
 
 o. County (2 Par. 293) 255 
 
 V. County Com. (42 Me. 395) 311 
 V. Cronkhite (8 Ind. 131) 241 
 
 V. Darley (2 H. L. Cases, 789) 284, 300 
 V. Dedliam (8 Cusli. 5^) 1014 
 
 o. Donelly (66 III. 464) 238 
 
 V. Fletcher (3 Eng. 305) 1070 
 
 V. Floi^a (64 111. 93) 629 
 
 V. Gates (21 Pick. 55) 177 
 
 II. Helmer (7 Barb. 416) 68 
 
 V. Heuston (6 Ohio, 101) 642, 645, 659 
 u. ILmtington (3 N. H. 76) 177 
 
 V. Hutchinson (8 Rich. Law, 260) 943 
 ». Kemoclien (7 How. 198) 114 
 
 V. Kinard (2 Hill (S. C), 642) 641 
 V. Knoxville (3 Head, 245) 332 
 
 V. Law (21 N. Y. 290) 300, 301 
 
 V. Leavenworth (15 Kan. 81) 1060 
 o. Lock (18 Mich. 56) 639 
 
 V. Lowell (6 Allen, 39) 1051 
 
 .,. Madison (7 Ind. 86) 118, 357, 3d0 
 V. Majourick (44 Ga. 163) 912 
 
 V. Marston (5 Tex. 426) 733 
 
 V. Mayor (66 N. Y. 295) 1066, 1067, 
 1088, 1077 
 V. Mayor (23 Am. Rep. 53) 1077 
 
 V. Mayor (10 N. Y. 604) 467 
 
 V. Mayor (21 How. (N. Y.) Pr. 1) 464 
 V. McCarthy (56 Pa. St. 359) 62, 68, 
 213, 226, 323, 882 
 V. Metropolitan Gas Co. (12 How. 
 
 Pr. 187) 690 
 
 D. MUwaukee (18 Wis. 63) 475, 767, 
 
 1049, 1070 
 
 Smith V. Moore (1 C. B. 438) 166 
 
 V. Morse (2 Cal. 624) 93, 102, 124, 12ti, 
 
 158 
 V. Newark (32 N. J. Eq. 1) 896 
 
 V. Newbern (70 N. C. 14) 115, 386 
 V. Newburgh (77 N. Y. 130) 116, 443, 
 
 461 
 V. New Orleans (23 La. An. 5) 481 
 V. New York (66 N. Y. 295) 1048 
 c.. New York (37 N. Y. 618) 228, 258, 
 
 V. Philadelphia (81 Pa. St. 88) 694, 
 
 953 
 V. Philadelphia (22 Am. Rep. 781) 953 
 V. Railroad Co. (30 Ala. 650) 204 
 V. Railroad Co. (120 Mass. 490) 1041 
 u. Ilailroad Co. (21 Am. Rep. 
 
 538) 1041 
 
 V. Redfield (27 Me. 145) 944 
 
 V. Rochester (76 N. Y. 506) 971, 972, 
 
 982 
 V. Rome (19 Ga. 89) 684, 687 
 
 ». Sac County (11 Wall. 139) 661 
 V. Sacramento (13 Cal. 531) 472 
 
 0. San Antonio (17 Tex. 643) 429 
 V. Sheely (12 Wall. 36) 569 
 
 V. Smith (3 Dessaus. 557) 194, 269 
 V. Smith (1 Bailey, 70) 257 
 
 V. Smith (2 Pick. 621) 1028 
 
 V. St. Joseph (45 Mo. 449) 1037, 1039, 
 
 1040 
 
 V. State (19 Conn. 493) 247 
 
 V. State (23 N. J. L. 712) 635, 6-36, 637, 
 
 655, 657, 669 
 
 V. Turner (7 How. (U. S.) 288) 733 
 
 V. Warden (19 Pa. St. 426) ,587 
 
 I.. Washington (20 How. 135) 682, 684; 
 
 997, 999, 1001, 1007 
 
 u. Wendell (7 Cusli. 498) 1024, 1025, 
 
 1027, 1029, 1084 
 
 Smith's Case (4 Mod. 53) 194, 199 
 
 (12 Mod. 17) 194 
 
 (Skin. 311) 194, 199 
 
 (1 Show. 278) 194 
 
 (8 St. Tr. 1042) 199 
 
 Smoot V. Hart (38 Ala. 69) 131 
 
 V. Wetumpka (24 Ala. 112) 109, 719, 
 
 720, 1037 
 
 Snell in re (.30 U. C. Q. B. 81) 344, 898 
 
 Snook .;. Brantford (14 U. C. Q. B. 
 
 255) 1069 
 
 Snow «. Adams (1 Cush. 443) 1027 
 
 V. Housatonic Railroad Co. (8 
 
 Allen, 441) 1051 
 
 Snyder ». Lawrence (8 Kan. 82) 360 
 
 ti. Rockport (6 Ind. 237) 138, 706, 995, 
 
 999, 1004 
 
 Society v. Austin (46 Cal. 415) 907 
 
 V. Commonwealth (52 Pa. St. 125) 278 
 
 V. Detroit (3 Mich. 172) 774 
 
 V. Musgrove (44 Miss. 820) 370 
 
 t>. New London (29 Conn. 174) 179, 
 
 516, 525, 538, 648, 551 
 
 u.-Pawlet (4 Pet. 480) 61, 111 
 
 V. Van Dyke (2 Whart. 309) 277 
 
cu 
 
 TABLE OF CASES CITED. 
 
 Society v. Young (2 N. H. 810) 204 
 
 Solberg V. Decorah (41 Iowa, 501) 668 
 Somerville v. Dickerman (127 Mass. 
 
 272) 116, 615 
 
 Sonoma, etu. v. Fairbanks (52 Cal. 196) 96 
 Soper V. Henry County (26 Iowa, 264), 31 
 958, 1009, 1037, 1038 
 Sorooeo v. Geary (3 Cal. 69) 954 
 
 foulard v. St. Louis (36 Mo. 546) 974 
 Soule V. Grand Trunk Railway Co. 
 
 (21 U. 0. C. P. 308) 1027, 1028 
 V. New York Railroad (24 Conn. 
 
 575) 1043 
 
 South Bay, etc. Co. v. Gray (30 Me. 
 
 547) 245 
 
 South Bend v. Faxon (65 Ind. 228) 1074 
 South Ottawa v. Foster (20 111. 296) 1009 
 ISouttiem, etc. Railroad Co. v Cole- 
 man (94 U. S. 181) 73 
 Southern, etc. Co. v. Mobile (49 Ala. 
 
 404) 736 
 
 Southgate v. Covington (15 B. Mon. 
 
 491) 790 
 
 •Southampton v. Fowler (52 N .H. 225) 217 
 South Park Commrs. v. Dunlevy (91 
 
 III. 49) 488 
 
 Southworth v. Railroad Co. (2 Mich. 
 
 287) 68 
 
 South Yarmouth, etc. Co. v. Great 
 
 Northern, etc. Co. (9 Exch. 
 
 55) 218 
 
 Soutter V. Madison (15 Wis. 30) 93, 200, 
 838, 839, 842, 866, 867, 872, 877 
 Sower V. Philadelphia (35 Pa. Si. 
 
 231) 321, 600, 605, 607 
 
 Spangler v. Jacoby (14 III. 297) 304 
 
 Sparliawk v. Salem (1 Allen, 30) 1017, 
 1018, 1024, 1025 
 Sparr v. St. Louis (4 Mo. App. 572) 1027 
 gpaulding v. Andover (54 N. H. 3S) 84, 85, 
 
 88 
 
 17. Lowell (23 Pick. 71) 36, 41, 42, 117, 
 
 119, 120, 122, 451 
 
 JSpeaker v. Glass (3 P. C. App. 560) 271 
 
 Spear v. Robinson (29 Me. 531) 224, 288 
 
 Specht V. Commonwealth (8 Pa. St. 
 
 312) 397 
 
 V. Detroit (20 Mich. 168) 597, 599 
 Speed V. Crawford (3 Met. (Ky.) 207) 81 
 Speer v. School Directors (50 Pa. St. 
 
 150) 178 
 
 Speir V. BlairsTiUe (50 Pa. St. 150) 791 
 
 Spencer v. People (68 111. 510) 736 
 
 V. School District (15 Kan. 259) 915 
 
 Sperry v. Horr (32 Iowa, 184) 178 
 
 Spiegel V. Gausberg (44 Ind. 418) 665, 666 
 
 Spitler V. Young (63 Mo. 42) 352, 355 
 
 Spokes V. Banbury (L. R. 1 Eq. 42) 381 
 
 Spooner v. Holmes (102 Mass. 503) 552 
 
 Sprague v. Coenen (30 Wis. 309) 814 
 
 V. Norway (31 Cal. 173) 226 
 
 V. Worcester (13 Gray, 198) 995, 1066, 
 
 1078 
 Sprawl V. Laurence (38 Ala. 674) ?41 
 Spray v. Thompson (9 Iowa, 40) 604, 603 
 
 Springer v. Bowdoinham (7 Me. 442) 1027, 
 
 1052 
 
 V. Clay Co. (35 Iowa, 243) 219 
 
 Springfield v. Doyle (76 111. 202) 1048 
 
 V. Edwards (84 111. 626) 163, 912 
 
 V. Edwards (84 111. 77) 158 
 
 ... Edwards (84 111. 266) 911 
 
 v. Hampden (10 Pick. (Mass.) 59) 862 
 
 V. Harris (107 Mass. 632) 446, 454 
 
 V. Le Claire (49 111. 476) 1049, 1052, 
 
 1053, 1054, 1056, 1058 
 
 V. Railroad Co. (4 Cush. 63) 696, 702 
 
 V. Schmouk (68 Mo. 394) 620 
 
 Stack V. East St. Louis (85 111. 377) 653, 
 
 ' 1065, 1066, 1068 
 
 V. Portsmouth (52 N. H. 221) 1018, 
 
 1029, 1047 
 
 Stackpole v. Healy (16 Mass. 83) 686 
 
 Stadler v. Detroit (13 Mich. 346) 235, 273, 
 
 276 
 
 Stafford in re (1 O'M. & H. 234) 226 
 
 u. Albany (7 Johns. 541) 603 
 
 V. Hamston (2 B. & B. 691) 748 
 
 V. Providence (10 R. I. 567) 618 
 
 Staffordshire, etc. v. Proprietors (1 
 
 B. & I. App. 254) 670 
 
 Staniland v. Hopkins (9 M. & W. 178) 249, 
 
 251 
 Stainton v. Metropolitan Board, etc. 
 
 (23 Beav. 225) 1075 
 
 V. Metropolitan Board, etc. (3 Jur. 
 
 N. S. 257) 1075 
 
 Stanley v. Colt (5 Wall 119) 541 
 
 V. Davenport (9 C. L. J. 392) 709, 715, 
 
 1027, 1043 
 
 V. iPerry (23 Grant, 507) . 441 
 
 Stanton v. Camp (4 Barb. 274) 446 
 
 V. Springfield (12 Allen, 566) 1013, 
 
 1020, 1063 
 
 Staples V. Canton (69 Mo. 592) 1019, 
 
 1038 
 Starin v. Genoa (23 N. Y. 439) 179, 188, 
 191, 501, 516, 523, 546, 547 
 Stark V. Lancaster (57 N. H. 88) 1026 
 Starkey v. Minneapolis (19 Minn. 203) 444 
 Starr v. Burlington (45 Iowa, 87) 768,800 
 V. Railroad Co. (24 N. J. L. 592) 681, 
 
 715 
 V. Rochester (6 Wend. 564) 431, 973 
 State '•. Addison (2 South Car. 499) 776 
 V. Allen (21 Ind. 516) 250, 252 
 
 V. Anuker (2 Rich. 245) 249 
 
 V. Armstrong (3 Sneed, 634) 57 
 
 V. Atkinson (24 Vt. 448) 561,643,655 
 V. Atlantic City (34 N. ,1. L. 99) 124, 
 342, 599, 699, 749 
 V. Auditor (36 Mo. 70) 828, 834 
 
 V. Axtell (41 N. J. L. 117) 774 
 
 V. Bacon (6 Neb. 286) 837 
 
 V. Bailey (7 Iowa, 390) 818, 831, 854, 
 856, 857, 802 
 V. Bank (2 Honst. (Del.) 99) 773 
 V. Barksdale (5 Humph. 154) 930 
 V. Barlow (48 Mo. 17) 464, 826 
 
 V. Bartlett (35 Wis. 387) 1055 
 
TABLE OF CASES CITED. 
 
 cm 
 
 State I'. Bayonne (85 N. J. L. 335) 321, 
 
 S22, 801 
 V. Bell (34 Ohio St. 194) 123, 124,413 
 V. Beloit (20 Wis. 79) 672, 839, 842 
 V. Bergen (34 N. J. L. 439) 109 
 
 V. Bergen (33 N. J. L. 39) 322, 824 
 V. Bergen (5 Dutch. (N. J.) 266) 743 
 V. Bill (13 Ired. 373) 923, 926, 928 
 V. Binder (38 Mo. 451) 64, 115, 294, 880 
 V. Blanchard (B La. An. 515) 
 V. Blundell (24 N. J. L. 402) 
 V. Board (10 Iowa, 157) 
 B. Board of Education (24 Wis. 
 
 683) 
 V. Bollinger (48 Mo. 475) 
 c. Bonner (Busbee (N. C.) Law, 
 
 257) 827 
 
 V. Boscawen (82 N. H. 331) 720, 930 
 V. Bradbury (40 Me. 154) 636, 640, 
 
 641 
 V. Bradford (32 Vt. 50) 887 
 
 V. Branin (23 N. J. L. 485) 75, 76, 113, 
 114, 769 
 V. Brassfield (67 Mo. 331) 541, 552 
 V. Brown (31 N. J. L. 355) 885 
 
 V. Bryce (7 Ohio, 414) 269, 270, 276, 
 277, 278, 883 
 «. Buflfalo (2 Hill, 434) 236, 402, 452 
 V. Buffalo Co. (6 Neb. 4.54) 838 
 
 V. Burbank (22 La. An. 318) 838, 844, 
 
 859 
 V. Burlington (36 Vt 521) 262, 931, 
 
 222 
 
 i; 
 
 732 
 
 V 
 
 855 
 
 V 
 
 
 V 
 
 826 
 
 V 
 
 840 
 
 V 
 
 1015 
 798 
 894 
 250 
 379 
 881 
 720 
 
 V. Burlington (45 Iowa, 87) 
 V. Burnett (2 Ala. 140) 
 V. Butz (9 So. Car. 156) 
 V. Cadwalader (36 N. J. L. 283) 
 V. Camden (35 N. J. L. 217) 
 V. Oampton (2 N. H. 513) 
 V. Canterbury (28 N. H. 195) 62, 209, 
 
 720 
 V. Carroll (12 Am. Law Keg. 165) 884 
 II. Carroll (38 Conn. 448) 259, 884 
 V. Carver (5 Strob. 217) 640, 641 
 V. Cassidy (22 Minn. 312) 357, 738, 765 
 V. Catlin (3 Vt. 530) 629,630,635,642 
 V. Cavanae (30 La. An. 237) 828 
 
 .;. Chamberlain (37 N. J. L. 388) 414, 
 
 665 
 V. Chamber of Commerce (20 
 
 Wis. 63) 269, 270, 271 
 
 V. Charles (16 Minn. 474) 370 
 
 V. Charleston (12 Rich. L. 702) 610 
 V. Charleston (1 Const. R. 36) 879, 888 
 ». Choate (llOhio, 511) 883 
 
 V. Cincinnati (20 Ohio St. 18) 66, 67 
 V. Cincinnati (19 Ohio, 178) 819 
 
 V. Cincinnati Gas Go. (18 Ohio 
 
 St. 262) 77, 126, 326, 655, 667, 690, 
 693, 879, 887, 892, 893 
 V. City Clerk (7 Ohio St. 355) 327 
 V. City Council (2 Speers (Law), 
 
 623) 788 
 
 1. City Council (1 Mill, Ch. 40) ' 771 
 V. City Council (4 Rich. L. 286) 133 
 
 State V. City Council (5 Rich. L. 561) 771, 
 
 787 
 .;. City Council (10 Rich. L. 240) 735, 
 
 771 
 V. City Council (4 Strob. L. 217) 771 
 V. Clark (28 N. H. 176) 322, 329, 364, 
 
 Clarke (54 Mo. 17) 115, 339, 381, 
 
 414 
 Clarke (1 Dutch. 54) 114, 115, 368 
 Clay County (46 Mo. 231) 840, 841 
 Clegg (27 Conn. 593) 431 
 
 Cleveland (3 Rh. Is. 117) 346 
 
 Clerk (1 Dutch. 354) 229 
 
 Clunet (19Md. 851) 603 
 
 Cockrell (2 Kich. L. 6) 232, 604, 
 926, 928 
 Comm'rs (5 Ohio St. 497) 867, 915 
 Comm'rs (6 Ohio St. 280) 845 
 
 Comm'rs (18 Ohio St. 386) 826 
 Commissioners, etc. (23 N, J. 
 
 L. 510) 557 
 
 Commissioners, etc. (23 Kan. 
 
 456) 365 
 
 Commissioners (1 Const. R. 65) 879, 
 
 928 
 Commissioners (41 N. J. L. 83) 801 
 Commissioners (2 N. Car. Law, 
 
 617) 262 
 
 Commissioners (Walk. 368) 262 
 Commissioners (2 Dev. 345) 262, 
 
 931 
 Common Council (9 Wis. 254) 275, 
 276, 836 
 Conlin (27 Vt. 818) 
 Cooke (24 Minn. 247) 
 Copeland (3 R. I. 33) 
 Cornvil (43 Me 427) 
 County Auditor (19 Ohio, 116) 840 
 County Court (50 Mo. 317) 68 
 County Court, etc. (48 Mo. 339) 536 
 County Judge (2 Inwa, 280) 71, 867 
 County Judge (7 Iowa, 186) 831, 
 856, 857, 872 
 County Judge (5 Iowa, 380) 839, 
 840, 841 
 County Judge (12 Iowa, 237) 862, 
 
 870 
 Cowen (29 Mo, 330) 367, 370, 397, 
 
 424 
 
 68, 349 
 
 778 
 
 1018 
 
 V. Crawford (-36 N. J. L. 394) 767 
 V. Crowell (4 Halst. 390) 879 
 
 17. Crummey (17 Minn. 72) 369 
 
 V. Curran (12 Ark. 321) 62 
 
 c. Custer (11 Ind. 210) 818, 819, 820 
 V. Cymis (26 Ohio St. 400) 358 
 
 V. Davenport (12 Iowa 335) 839, 841, 
 844, 845 
 V. Dawson (3 Hill (S. C), 100) 585 
 0. Dean (23 N. J. L. 335) 747 
 
 o. De Bar (58 Mo. .395) 115, 381 
 
 V. De Casinova (1 Tex. 401) 224 
 
 V. Delesdenier (7 Tex. 76) 42 
 
 V. Deliesseline (1 McCord, 52) 232, 
 282, 296, 834, 881 
 
CIV 
 
 TABLE OF CASES CITED. 
 
 State V. Dews (R. M. Charlt. 397) 83 
 V. Digby (5 Blackford, 543) 621 
 
 V. Directors (5 Ohio St. 234) 467 
 V. Dodge Co. (8 Neb. 129) 737, 748 
 V. Donahay (80 N. J. L. 404) 286, 926 
 V. Douglass (26 Wis. 428) 253 
 
 V. Douglass (33 N. J. L. 363) 115 
 V. Douglass (SO Mo. 593) 884 
 
 V. Dousman (28 Wis. 541) 65 
 
 V. Dowling (50 Mo. 134) 787, 911, 924 
 V. Dubuclet (24 La. An. 16) 827, 859 
 v. Dunn (1 Minor (Ala.), 46) 834 
 o. Dunnington (12 Md. 340) 265 
 
 ». Eastabrooke (6 Ala. 653) 363 
 
 V. East Orange (41 N. J. L. 127) 334 
 V. Elizabeth (31 N. J. L. 547) 801 
 V. Elizabetli (32 N. J. L. 357) 599, 800 
 «. Elizabeth (40 N. J. L. 274) 804 
 V. Elizabeth (37 N. J. L. 432) 322 
 0. Elizabeth (30 N. J. L. 365) 794, 801 
 V. Elizabeth (SO N. J. L. 176) 797 
 V. Elkinton (30 N. J. L. 335) 866, 869, 
 
 872 
 u. Elvins (32 N. J. L. 362) 71 
 
 V. Elwood (U Wis. 17) 862 
 
 V. Fagan (42 Conn. 32) 246 
 
 V. Pairchild (22 Wis. 110) 860 
 
 ». Falconer (44 Ala. 696) 833 
 
 V. Fenley (18 Mo. 445) 481 
 
 V. Ferguson (33 N. H. 424) 328, 329, 
 
 864 
 0. Ferguson (31 N. J. L. 107) 249, 251, 
 V. Findley (10 Ohio, 51) 241 
 
 ». Fisher (52 Mo. 174) 337 
 
 V. Fitzgerald (44 Mo. 425) 228, 229, 
 
 231, 432, 881 
 V. Flanders (24 La. An. 57) 86 
 
 V. Foley (31 Iowa, 527) 712, 713 
 
 V. Foster (2 Halst. 101) 303 
 
 u. Freeholders (23 N.J. L. 214) 828 
 V. Freeman (38 N. H. 426) 329, 331, 
 
 364, 380, 398 
 V. Frost (4 Harring. 558) 224 
 
 V. Fuller (34 N. J. L. 227) 75, 747 
 V. Fullerton (7 Rob. (La.) 210) 733 
 V. Funk (17 Iowa, 365) 229, 231, 432 
 r. Gaffney (34 N. J. L. 133) 771 
 
 V. Garlock (14 Iowa, 444) 363 
 
 B. Garroute (67 Mo. 445) 535 
 
 V. Gastinel (20 La. An. 114) 224 
 
 V. Gates (67 Mo. 139) 262 
 
 V. Gates (22 Wis. 210) 866, 872 
 
 V. Georgia Medical Soc. (38 Ga. 
 
 608) 266, 269 
 
 i>. Giles (1 Chand. 112) 224 
 
 V. Gilmanton (14 N. H. 467) 209 
 
 ». Glasgow (N. Car. O.R. 186) 262 
 V. Glennon (3 R. I. 276) 35 
 
 V. Gordon (60 Mo. 383) 370 
 
 V. Gorham (37 Me. 451) 719, 1064 
 V. Gorham (34 N. J. L. 177) 115 
 
 V. Governor (1 Dutch. 331) 229, 827 
 V. Governor, etc. (5 Ohio St. 528) 826, 
 
 827 
 V. Graham (13 Kan. 136) 883 
 
 State 
 
 V. 
 
 V. Graham (24 La. An. 429) 827 
 Graves (19 Md. 351) 126, 327, 601, 
 602, 603, 614, 819, 855 
 Great Works Milling Co. (20 
 
 Me. 41) 931 
 
 Green Co. (54 Mo. 540) 536 
 
 Gregg (2 Hill (S. C), 388) 641 
 Griffey (5 Neb. 161) 227 
 
 Gummersall (24 N. J. L. 529) 893 
 Guscino (3 Halst. 136) 867 
 
 Guttenberg (38 N. J. L. 419) 190, 
 743, 763, 821, 838, 839, 843 
 Gutierrez ( 15 La. An. 190) 418, 424, 
 
 428, 430 
 Haben (22 Wis. 660) 854 
 
 Halifax (4 Dev. Law (N. C), 
 
 345) 762 
 
 Hamilton (5 Ind. 810) 918 
 
 Hammonton (38 N. J. L. 430) 174 
 Hand (31 N. J. L. 547) 797 
 
 Hardie (1 Ired. 42) 881 
 
 Hardy (7 Neb. 377) 388 
 
 Harper (58 Mo. 531) 370 
 
 Harper (6 Ohio St. 707) 263 
 
 Harris (10 Iowa, 441) 863 
 
 Hartshorn (17 Ohio, 135) 217 
 
 Haskell (20 Iowa, 276) 441 
 
 Hastings (10 Wis. 518) 862 
 
 Hauss (43 Ind. 105) 251 
 
 Hauser (63 Ind. 155) 128, 263 
 
 Hay (29 Me. 457) 380 
 
 Helfrid (2 N. & McC. 233) 417 
 
 Helmes (Penn. (N. J.) 1050) 109 
 Herod (29 Iowa, 123) 359, 711, 712, 
 786 
 Hewett (31 Me. 396) 1042 
 
 Highland (25 Minn. 355) 549 
 
 Hill (10 Ind. 219) 625 
 
 Hoboken (30 N. J. L. 225) 677, 711 
 Hoboken (35 N. J. L. 205) 696, 702 
 Hoboken (36 N. J. L. 291 ) 747 
 Hoboken (38 N. J. L. 110) 324, 341 
 Hoboken (33 N. J. L. 280) 357, 766 
 Hoyt (2 Oreg. 246) 252, 303 
 
 Hudson (32 N. J. L. 365) 924, 926 
 Hudson (3 Dutch. 214) 597 
 
 Hudson (5 Dutch. 104) 116, 443,743, 
 
 799, 804 
 Hudson (5 Dutch. 475) 305, 341,599, 
 800 
 Hudson (35 N. J. L. 269) 869 
 
 Hud.son (34 N. J. L. 531) 798 
 
 Hudson Co. (30 N. J. L. 137) 930, 
 
 goo 982 
 Hug (44 Mo. 116) 601, 608,' 842 
 Huggins (47 Ind. 586) 665 
 
 Huggins (Har. Law, 94) 232, 282, 
 296 
 Hull (82 N. J. 158) 380 
 
 Hundehausen (26 Wis. 432) 76 
 Inhabitants (36 N. J. L. 83) 709 
 Jackson (8 Mich. 110) 421 
 
 Jacobs (17 Ohio, 143) 217, 247, 293, 
 
 892, 893 
 Jenkins (46 Wis. 616) 894 
 
TABLK OF CASES CITED. 
 
 CV 
 
 State V. Jennings (27 Ark. 419) 59, 75 
 
 V. Jersey City (24 N. J. L. 662) 599, 
 
 743, 767, 801 
 
 V. Jersey City (1 Dutch. 309) 123, 124, 
 
 239, 300, 302, 597, 767, 801 
 
 ... Jersey City (1 Dutcli. 536) 136, 210, 
 
 268, 269, 270, 271, 272, 278, 
 
 836 
 
 V. Jersey City (2 Dutcii. 444) 124, 234, 
 
 324, 394, 597, 614, 677, 763, 800, 
 
 801, 802 
 
 V. Jersey City (3 Dutch. 493) 296, 321, 
 
 322, 331, 802 
 
 0. Jersey City (3 Dutch. 536) 303, 800 
 
 0. Jersey City (5 Dutch. 441) 802,804, 
 
 896 
 
 V. Jersey City (5 Dutch. 170) 114, 116, 
 
 375, 706, 711 
 
 17. Jersey City (80 N. J. L. 93) 290, 
 
 310, 341 
 
 W.Jersey City (34 N. J. L. 32) 115, 
 
 138, 323, 678, 801 
 
 V. Jersey City (34 N. J. L. 277) 
 
 . Jersey City (34 N. J. L. 390) 
 . Jersey City (35 N. J. L. 404) 
 
 683, 
 
 780 
 1.34 
 
 . Jersey City (37 N. J. L. 348) 
 . Jersey City (38 N.J L. 259) 
 . Jersey City (40 N. J. L. 483) 
 
 . Jersey City (41 N. J. L. 489) 
 . Jersey City (30 N, J. L. 521) 
 . Jersey City (30 N. J. L. 148) 
 
 800 
 678 
 858 
 
 635, 
 743 
 804 
 896 
 
 322, 
 802 
 640 
 68 
 454 
 228, 432 
 225 
 
 Johnson (11 Ired. Law, 647) 
 
 Johnson (1 Kan. 178) 
 
 Johnson (52 Ind. 197) 
 
 Johnson (17 Ark. 407) 
 
 Jones (19 Ind. 356) 
 
 Jones ( 10 Iowa, 65) 868 
 
 Jones (18 Tex. 874) 676 
 
 Jones (llred. (N.C.) 129) 822,861, 
 
 809 
 Judge, etc. (13 Ala. 805) 832 
 
 Judge, etc. (21 La. An. 741) 872 
 Justices (4 Hawks, 194) 262 
 
 Kaulman (51 Iowa, 578) 420 
 
 K. C. etc. Co. (45 Iowa, 139) 637 
 Kelly (34 N. J. L. 75) 113 
 
 Keokuk (9 Iowa, 438) 600,601,608, 
 
 824 
 Keokuk (18 Iowa, 388) 862 
 
 Kirk (44 Ind. 401) 235 
 
 Kirk (15 Am. Rep. 239) 235 
 
 Kirkley (29 Md. 85) 325, 818, 819 
 Kirkwood (14 Iowa, 162) 827 
 
 Klspert (21 Wis. 887) 871 
 
 Kline (28 Ark. 687) 225 
 
 KroUman (38 N. J. L. 323) 774 
 Lancaster Bank (8 Neb. 218) 937 
 Lafferty (5 Barring. 491) 409 
 
 Laveraek (34 N. J. L. 201) 387, 656 
 Lean (9 Wis. 279) 860 
 
 Ledford (3 Mo. 102) 368 
 
 State V. Leffingwell(54 Mo. 458) 27, 31,33, 
 69, 591, 742, 746, 780 
 V. Lehre (7 Rich. (S. C.) 322) 858, 885 
 V. Leovy (21 La. An. 638) 83 
 
 i^. Lewenthall (55 Miss. 589) 262 
 
 ... Lieber (11 Iowa, 407) 385 
 
 0. Lingo (20 Mo. 496) 269, 270, 271 
 0. Linn Co., etL>. (44 Mo. 50) 6J4 
 
 V. Lockwood (43 Wis. 403) 420 
 
 V. Loomis (5 Ohio, 358) 832 
 
 u. Ludwig (21 Minn. 202) 370 
 
 V. Lyon (32 N. J. L. 360) 774 
 
 V. Lyons (31 Iowa, 432) 888 
 
 V. Macon Co. (41 Mo. 453) 536 
 
 V. Macon Co. (68 Mo. 29) 840, 843 
 V. Madison (7 Wis. 688) 145, 146, 479, 
 557, 559 
 V. Malov (20 Kan. 619) 66 
 
 «. Mansfield (41 Mo. 470) 420 
 
 V. Marble (4 Ired. Law, 318) 630 
 
 V. Marion Co. (21 Kan. 419) 116, 443, 
 
 912 
 II. Marlow (15 Ohio St. 114) 229, 232, 
 432, 882 
 V. Marston (0 Kan. 524) 831, 883 
 
 ». Mayberry (3 Strob. 144) 261 
 
 .;. Maynard (14 III. 419) 235, 417, 418, 
 
 419 
 V. Mayor (30 La. An. pt. I. 705) 842 
 V. Mayor (ll Humph. 217) 105, 262, 
 930, 1037 
 </. Mayor (R. M. Charlt. 2.J0) 76, 83 
 V. Mayor (5 Port. (Ala.) 279) 117 
 V. Mayor (23 La. An. 358) 158 
 
 V. Mayor (4 Neb. 260) 251 
 
 w. Mayor (24 Ala. 701) 76, HI 
 
 V. Mayor (37 Mo. 270) 64 
 
 u. Mayor, etc. (14 Rich. Law, 
 
 480) 417 
 
 V. Mayor (29 Md. 85) 441, 442, 970, 
 
 973 
 V. McArthur (13 Wis. 383) 431 
 
 V. McCrillus (4 Kan. 250) 821 
 
 V. McDowell (Dudley, 346) 381 
 
 «. McGarry (21 Wis." 496) 270 
 
 V. McKilden (8 Rep. 778) 286 
 
 V. McLaughlin (15 Kan. 228) 921 
 
 V. McReynolds (61 Mo. 203) 58, 213, 
 793, 890 
 ». Merrill (37 Me. 229) 396, 398 
 
 V. Merry (3 Mo. 278) 112 
 
 V. Miller (67 Mo. 604) 90 
 
 .,. Mills (34 N. J. L. 177) 115 
 
 V. Milwaukee (20 Wis. 87) 572, 8-38, 
 839, 842, 845 
 V. Milwaukee (25 Wis. 122) 93, 838 
 V. Milwaukee (22 Wis. 397) 861, 862, 
 
 866 
 V. Milwaukee Gas, etc. Co. (29 
 
 Wis. 454) 77, 691 
 
 V. Mitchell (2 Const. Rep. (S. C.) 
 
 703) 822, 824 
 
 B.Mobile (24 Ala. 701) 112 
 
 V. Mobile (6 Port. (Ala.) 279) 387, 643, 
 
 656, 657 
 
CVl 
 
 TABLE OF CASES CITED. 
 
 State V. Morris Common Fleas (12 Am. 
 
 L. R. 32) 63 
 
 V. Morristovvn (33 N. J. L. 57) 114, 
 
 329, 676, 678 
 
 V. Moss (2 Jones (Law), 66) 428 
 
 V. Moultrieville (Rice Law, 158) 347, 
 
 348 
 V. Mount (20 La. An. 352) 840 
 
 V. Newark (1 Dutch. 399, 25 N. J. 
 
 L.) 290, 341, 801, 896, 924, 925 
 V. Newark (26 N. J. L. 515) 729, 774 
 .,. Newark (3 Dutch. 185, 27 N. J. 
 L.) 105, 234, 341, 747, 752, 777, 
 
 767 
 o. Newark (4 Dutch. 491, 28 N. J. 
 
 L.) 127 
 
 V. Newark (30 N. J. L. 303) 341 
 
 „. Newark (34 N. J. L. 236) .71, 412, 
 808, 809 
 V. Newark (35 N. J. L. 171) 800, 804 
 V. Newark (36 N. J. L. 168) 797 
 
 V. Newark (36 N. J. L. 478) 751, 776, 
 
 777 
 V. Newark (37 N. J. L. 415) 453, 743, 
 747, 760, 797, 804, 805 
 V. Newark (38 N. J. L. 264) 383 
 
 V. Newark (40 N. J. L. 297) 868 
 
 V. Newark (40 N. J. L. 550) 66 
 
 V. New Boston (11 N. H. 413) 641 
 V. New Brunswick (30 N. J. L. 
 
 395) 123, 677, 749, 779 
 
 b. New Brunswick (82 N. J. L, 
 
 548) 665 
 
 V. New Orleans (30 La. An. 129) 841, 
 
 848 
 i>. New Orleans (30 La. An. 82) 841 
 V. New Orleans (20 La. An. 172) 473 
 V. North (42 Conn. 79) 886 
 
 V. North (27 Mo. 464) 734, 735 
 
 V. Norwood (12 Md. 177) 243 
 
 V. Noyes (30 N. H. 292) 16, 19, 63, 
 
 731 
 ». Ocean (39 N. J. L. 75) 881 
 
 V. Orange (31 N. J. L. 131) 828 
 
 V. Orange (32 N. J. L. 50) 599, 797 
 , V. Osawkee (14 Kan. 418J 186 
 
 V. Palmer (4 N. W. Rep. 966) 111 
 V. Parker (25 Minn. 215) 885 
 
 V. Parker (26 Vt. 362) 778 
 
 V. Parker (32 N. J. L. 426) 773 
 
 V. Parsons (40 N. J. L. 1) 68, 893 
 V. Passaic (27 N. J. L. 217) 677 
 
 V. Passaic (37 N. J. L. 65) 74-3 
 
 V. Passaic (41 N. J. L. 90) 116, 443, 
 
 799 
 I). Paterson (40 N. J. L. 186) 472 
 V. Paterson 40 N. J. L. 244) 802 
 
 V. Paterson (24 N. J. Eq. 158) 699 
 V. Paterson (34 N. J. L. 163) 124, 127, 
 
 323 
 V. Paterson (35 N. J. L. 190) 234 
 
 V. Paterson (36 N. J. L. 159) 599, 801, 
 
 802 
 V. Paterson (37 N. J. L. 380) 747 
 
 V. Paterson (38 N. J. L. 190) 836 
 
 State V. Pender (66 N. C. 313) 419 
 
 V. Perkins (24 N. J. L. 409) 242, 419 
 „. Perth Amboy (5 Dutch. 259) 599, 
 
 800, 802 
 V. Perth Amboy (SB N. J. L. 425) 767 
 V. Pettis (7 Rich. (S. C.) 390) 668, 
 
 671 
 V. Pillsbury (30 La. An. 705) 484 
 V. Pinckney (10 Rich. L. 474) 735 
 V. Pitot (21 La. An. 336) 837 
 
 V. Plainfield (38 N. J. L. 95) 412, 599, 
 767, 801, 808 
 V. Plunkett (3 Harr. (N. J.) 5) 363, 368 
 V. Police Jury (22 La. An. 611) 828 
 ♦ V. Pollard (6 R. I. 290) 368 
 
 V. Portage (12 Wis. 562) 610, 740, 749, 
 
 777, 796 
 V. Porter (7 Ind. 204) 241 
 
 V. Powell (67 Mo. 395) 262 
 
 V. Pritchard (36 N. J. L. 101) 879 
 V. Putnam County (19 Ohio, 415) 842 
 V. Rahway (33 N. J. L. 110) 231, 252, 
 830, 831, 832, 833, 856, 858, 860 
 V. Rahway (39 N. J. L. 646) 743 
 
 V. Railroad Co. (27 Vt. 103) 930 
 
 ... Railroad Co. (23 N. J. L. 360) 655, 
 656, 657, 930 
 V. Railroad Co. (29 Conn. 538) 856 
 V. Railroad Co. (45 Wis. 679) 879 
 V. Railroad Co. ( 12 Gill & J. 399) 80 
 u. Railroad Co. (3 How. S34) 80, 353, 
 
 676 
 V. Railroad Co. (9 Nev. 79) 782 
 
 V. Railroad Co. (10 Nev. 47) 734, 782 
 V. Railroad Co. (28 N. J. L. 421) 788 
 V. Ramos (10 La. An. 420) 270, 833 
 V. Ramsey (8 Neb. 286) 858 
 
 V. Raymond (27 N. H. 388) 930 
 
 V. Rich (7 Rich. (S. C.) 390) 673 
 
 V. Richland (20 Ohio St. 362) 178, 179 
 V. Richmond (1 R. I. 49) 641 
 
 V. RIcker (32 N. H. 179) 430 
 
 V. Riordan (24 Wis. 484) 65 
 
 t. Roberts (68 Mo. 234) 243 
 
 V. Roberts (11 G. &. J. 506) 356, 357, 
 
 764 
 V. Robinson (1 Kan. 188) 826 
 
 V. Rolle (30 La. An. 99) 789 
 
 V. Ruff (30 La. An. 497) 354 
 
 V. Rush (7 Ind. 221) 261 
 
 V. Saline County (51 Mo. 350) 906, 
 
 911 922 
 I). Saline County (45 Mo. 242) '546, 
 
 548, 858 
 V. Schnierie (5 Rich. Law, 299) 233, 
 
 890 
 V. Schlier (3 Heisk. 281) 789 
 
 V. School District (8 Neb. 92) 858 
 V. School District (29 Iowa, 264) 885 
 v. Scott (17 Mo. 521) 62 
 
 t>. Sellers (7 Rich. Law, 368) 261 
 V. Severance (49 Mo. 401) 413 
 
 V. Severance (55 Mo. 378) 114, 783, 
 
 787, 812 
 V. Shelbyville (4 Sneed, 176) 262, 931 
 
TABLE OF CASES CITED. 
 
 evil 
 
 State V. Sherman (20 Mo. 265) 363 
 
 V. Sherwood (42 Mo. 179) 259 
 
 V. Shields (8 Blackf. 151) 262 
 
 ». Smith (22 Minn. 218) 300, 302, 824, 
 
 831 
 V. Smith (14 Wis. 497) 224 
 
 V. Southern Steamship Co. (13 
 
 La. An. 497) 811 
 
 . «. Springfield (6 Ind. 83) 106 
 
 V. State Auditor (34 Mo. 375) 823 
 V. State Board (13 Fla. 55) 230, 862 
 V. State Canvassers (3 Kan. 88) 859 
 V. Stearns (31 N. H. 106) 407, 421 
 V. Stephens (4 Tex. 137) 729 
 
 V. Stewart (5 Strobh. L. 29) 604, 923, 
 
 926 
 V. St. Louis Co. Court (34 Mo. 
 
 546) 76, 82, 84, 168, 911, 963 
 
 V. St. Louis Co. Court (62 Mo. 
 
 244) 611, 911 
 
 V. Stout (7 Neb. 89) 937 
 
 V. Sullivan Co. (51 Mo. 531) 536 
 
 V. Supervisors (16 Wis. 613) 828 
 
 V. Supervisors, etc. (22 Wis. 396) 871 
 V. Swearingen (12 Ga. 23) 12.3, 224 
 V. Swift (1 Hill (S. C), 360) 604, 924, 
 
 926 
 w. Swisher (17 Tex. 441) 778 
 
 u. Tappan (29 Wis. 664) 96, 101, 178 
 I). Terrebonne (30 La. An. 287) 499 
 v. Thompson (34 Oliio St. 360) 890 
 V. Tiedeman (69 Mo. 306) 572 
 
 V. Tolan (33 N. J. L. 195) 831, 879, 
 883, 890 
 V. Toomer (7 Rich. (Law), 216) 241 
 V. Town Council (8 Rich. (S. C.) 
 
 214) 770 
 
 K. Town Council (12 Rich. (S. C.) 
 
 Law, 839) 774 
 
 V. Town Council (30 Ala. 66) 888 
 V. Townsliip (28 Ind. 86) 262 
 
 V. Trask (6 Vt. 355) 642 
 
 V. Trenton (42 N. J. L. 74) 124 
 
 V. Trenton -36 N. J. L. 198) 114 
 
 V. Trenton (36 N. J. L. 499) 322, 801 
 V. Trenton (36 N. J. L. 283) 373, 409 
 1). Troth (34 N. J. L. .379) 111 
 
 V. Trustees (61 Mo. 155) 487, 840, 841, 
 
 861 
 
 V. Trustees (5 Ind. 77) 43, 193, 198, 
 
 199, 269, 270, 276 
 
 V. Tryon (39 Conn. 183) 371 
 
 V. Tupper (Dudley (S. C.) Law, 
 
 135) 706 
 
 V. Turnpike Co. (1 N. J. 9) 879 
 
 V. Turnpike Co. (8 R. I. 521) 892 
 V. Union Township (8 Ohio, 94) 536 
 V. Union (37 N. J. L. 84) 841 
 
 V. Union (33 N. J. L. 350) 71, 412 
 V. University (4 Humph. 157) 559 
 V. Valle (41 Mo. 29) 82 
 
 V. Van Buskirk (40 N. J. L. 463) 241, 
 
 325 
 V. Van Home (7 Ohio St. 331) 544, 
 
 649 
 
 State w. Van Winkle (1 Dutch. 73) 816 
 
 V. Volkman (20 La. An. 685) 740 
 
 V. Wakely (2 N. & McCord, 410) 604, 
 
 605, 606, 928 
 
 «. Wapello County (13 Iowa, 
 
 388) 166, 180 
 
 V. Warmouth (22 La. An. 1) 827 
 
 V. Warren, etc. Co. (32 N. J. L. 
 
 439) 821 
 
 V. Water Commissioners (30 N. 
 
 J. L. 247) 926 
 
 !i. Weatlierly (45 Mo. 17) 886 
 
 V. Welch (36 Conn. 215) 332, 340, 397, 
 
 398 
 V. Welch (21 Minn. 22) 408 
 
 V. West Hoboken (37 N. J. L. 
 
 177) 596 
 
 V. West Orange (40 N. J. L. 122) 747 
 V. Whittinghara (7 Vt. 390) 931 
 
 V. Wilcox (42 Conn. 364) 63 
 
 V. Wilcox (45 Mo. 458) 62 
 
 V. WilkesviUe (20 Ohio St. 288) 305 
 V. Wilkinson (2 Vt.480) 635,636,642, 
 
 655 
 V. Williams (25 Me. 564) 286, 308 
 V. Wilmington (3 Barring. 294) 2.31, 
 235, 294, 419, 826 
 V. Wilson (42 Me. 9) 636, 640,641, 646 
 V. Wilson (17 Wis. 687) 842 
 
 V. Winkelmeler (35 Mo. 103) 64 
 
 V. Wister (62 Mo. 592) 370 
 
 V. Wood County (IT Ohio, 184) 819 
 V. Woodward (23 Vt. 92) 559, 562, 
 570, 634, 635, 643, 665 
 V. Woody (17 Ga. 612) 899 
 
 V. Wrotnowski (17 La. An. 156) 827 
 V. Young (3 Kan. 445) 64, 418, 4.30 
 V. Young (17 Kan. 414) 115, 365 
 
 w. Zanesville, etc. Co. (16 Ohio 
 
 St. 308) 857 
 
 V. Zeigler (32 N. J. L. 262) 346, 347, 
 405, 419, 924 
 State Bank u. Brackenridge (7 Blackf. 
 
 395) 558, 787 
 
 V. Knoop (16 How. 369) 76 
 
 V. Madison (3 Ind. 43) 770, 787 
 
 V. Navigation Co. (3 La. An. 294) 79 
 
 State Board a. Aberdeen (66 Miss. 
 
 518) 455, 458 
 
 V. Railroad Co. (47 Ind. 407) 453, 457 
 State Railroad Tax Cases (92 U. f5. 
 
 575) 907, 919, 921 
 
 State Tax, Case of (16 Wall. 300) 733 
 State Tax, Case of (15 Wall. 232) 733, 734 
 Steam Navigation Co. v. Dandridge 
 
 (8 G. &. J. 248) 441, 464 
 
 Steamship Co.'u. JolifEe (2 Wall. 450) 133 
 
 ?). Port Wardens (6 Wall. 31) 133 
 
 Stebbins v. Jennings (10 Pick. 1?2) 60, 61 
 
 V. Merritt ( 10 Cush. 27) 218, 307 
 
 Steokert w. East Saginaw (22 Mich. 
 
 104) 304, 306, 310, 325, 768, 795, 
 921 
 Steel V. Davis County (2 Greene 
 
 (Iowa), 469) 484, 487 
 
CVIU 
 
 TABLE OF CASES CITED. 
 
 Steele v. Buckhardt (104 Mass. 69) 1041 
 V. Martin (6 Kan. 430) 228, 882 
 
 Stein V. Burden (24 Ala. 130) 178 
 
 V. Mayor of Mobile (24 Ala. 591 ) 
 
 179, 180, 731, 786 
 V. Mobile (17 Ala. 234) 786 
 
 V. Mobile (49 Ala. 362) 786, 790 
 
 Steines v. Franklin County (48 Mp.' 
 
 167) 127. 501, 609, 640, 644, 551, 
 911, 960 
 Stephan v. Daniels (27 Ohio St. Rep. 
 
 527) 942 
 
 Stephani v. Brown (40 III. 428) 1061 
 
 Stephens v. People (89 111. 337) 221, 222 
 Stephenson Co. v. Manny (56 111. 160) 940, 
 
 941 
 
 SterlingtV. re (1 Sid. 340) 861 
 
 V. Thomas (60 111. 264) 1061 
 
 V. West (20 La. An. 69) 483 
 
 Sterrett v. Houston (14 Tex. 153) 986 
 
 Stetson V. Cliicago Railroad Co. (75 
 
 III. 74) 697 
 
 V. Faxon (19 Pick. 147) 138, 656, 658, 
 
 1066 
 
 V. Kempton (13 Mass. 272) 40,41, 42, 
 
 117, 166, 178, 449, 451, 941 
 
 V. Railroad Co. (75 111. 74) 620 
 
 Stevens' Case (T. Raym. 432) 868 
 
 Stevens v. Boxford (10 Allen, 93) 1018 
 
 V. Chicago (48 III. 498) 414 
 
 V. Railroad Co. (31 Barb. 591) 788 
 
 V. Railroad Co. (29 Vt. 546) 909 
 
 V. Society (12 Vt. 688) 286, 313 
 
 Stevens Co. v. Railroad Co. (33 N. 
 
 J. L. 229) 109 
 
 Stevens' Point «. Reilly (44 Wis 295) 65 
 Stewart i>. Baltimore (7 Md. 500) 600,605, 
 
 608. 614 
 V. Board (25 Miss. 479) 599 
 
 V. Commonwealth (10 Watts, 307) 402 
 V. Council Bluffs (50 Iowa, 668) 602 
 V. Davis (.3 Murph. (N C.) 244) 773 
 V. Jefferson (3 Harr. 335) 731 
 
 V. Kalamazoo (30 Mich. 69) 910 
 
 ». Mayor (7Md. 501) 4.31 
 
 V. New Orleans (9 La. An. 461) 979, 
 981, 983 
 V. Otoe Co. (2 Neb. 177) 116, 615 
 V. Polk County (80 Iowa, 1) 180 
 
 V. Southard (17 Ohio, 402) 264, 266 
 V. State (4 Ind. 396) 246, 247 
 
 V. Stewart (2 Smith's Lead. Cas. 
 
 403) 946 
 
 V. Stewart (6 CI. & F. 911) 942, 946 
 V. Woodstock, etc. Road Co. (16 
 U. C. Q. B.427) 1020 
 
 Stickford v. St. Louis (7 Mo. App. 
 
 217) 1000 
 
 Stickney v. Maidstone (30 Vt. 738) 1022 
 ». Salem (3 Allen, 374) 964, 1015 
 Stier V. Oskaloosa (41 Iowa, 353) 109 
 Stilk V. Myrick (2 Camp. 317) 166 
 
 Stlllman v. Isham (11 Conn. 123) 130 
 Stillwater v. Green (4 Halst. 59) 217 
 
 Stilson V. Lawrence Co. (62 Ind. 213) 464 
 
 Stiltz V. Indianapolis (55 Ind. 515) 84 
 Stinson v. Gardiner (42 Me. 248) 1015, 
 
 1018 
 Stites V. Curtis (4 Conn. 328) 632, 662 
 Stock V. State (6 Ind. 113) 261 
 
 Stockbridge v. West Stockbridge (12 
 
 Mass. 400) 110 
 
 Stocking w. State (7 Ind. 326) 248 
 
 Stockton, etc. Co. v. Stockton (41 Cal. 
 
 147) 180 
 
 Stoddard v. Oilman (22 Vt. 568) 303, 327 
 V. Kimball (6 Cush. 469) 500 
 
 Stokes V. New York (14 Wend. (N. 
 
 i Y.)87) 348,392,393,408 
 
 Stone V. Boston (2 Met. 220) 604, 926 
 V. Brooks (35 Cal. 489) 631, 638 
 
 V. Cambridge (6 Cush. 270) 600 
 
 V. Klliott (11 Ohio St. 252) 500 
 
 V. Hubbardston (100 Mass. 49) 1020, 
 
 10.35 
 V. Huggins (28 Vt. 617) 264 
 
 V. Mayor (20 Wend. 139) 955 
 
 V. Mayor 25 Wend. 167) 924, 927, 
 955, 966 
 V. Mobile (57 Ala. 61) 763, 920 
 
 u. Railroad Co. (68 111. 394) 653, 706, 
 
 1000 
 
 V. Railroad Co. (19 N. H. 427) 1058 
 
 V. School District (8 Cush. 592) 286 
 
 V. Wisconsin (94 U. S. 181) 73 
 
 Stoneburgh v. Brighton (5 U. C. L. J. 
 
 38) 442, 447 
 
 Stonehouse v. Elliott (6 T. R. 315) 238 
 
 V. Enniskillen (32 U. C. Q. B. 
 
 562) 935 
 
 Storm I'. Odell (2 Wend. 287) 928 
 
 Stormfeltz v. Turnpike Co. (13 Pa. 
 
 St. 552) 652, 653 
 
 Storrs V. Utica (17 N. Y. 104) 475, 1037, 
 
 1049, 1053, 1054, 1055, 1056, 1057, 
 
 1058 
 
 Stotesbury v. Smith (2 Burr. 921) 166 
 
 Stoudinger v. Newark City (28 N. J. 
 
 Eq. 187) 688 
 
 Stover V. Blue Hill (51 Me. 439) 1042 
 StoWell V. Milwaukee (31 Wis. 523) 1003 
 Strahl in re (16 Iowa, 869) 229, 231, 233, 
 235, 291, 293, 432 
 Stratman in re (39 Cal. 517) 418 
 
 Stratton v. Allen (16 N. J. Eq. 229) 144, 
 
 145, 489 
 V. Oulton (28 Cal. 44) . 269 
 
 Strauss v. Insurance Co. (5 Ohio St. 
 
 59) 435, 469, 482, 489 
 
 V. Pontiao (40TI1. 301 )322, 394, 355, 365 
 Street v. County Commissioners ( 1 111. 
 
 25) 8.36 
 
 1). Francis (3 Ohio, 277) 923 
 
 V. Holyoke (105 Mass. 82) 1020, 1041 
 «. Holyoke (7 Am. Rep. 500) 1020, 
 
 1041 
 
 Street Case (1 La. An. 412) 301 
 
 10 La. An. 313) 597 
 
 (20 La. An. 497) 739, 752 
 
 (16 La. An. 393) 598, 797 
 
TABLK OF CASES CITED. 
 
 CIX 
 
 Street Railroad Co. v. City Railroad 
 
 Co. (2Duvall (Ky.), 175) 699 
 V. Cummins villa (14 Ohio St. 
 
 623) 705, 711, 714, 716 
 
 V. Smith (2 Duvall, 556) 713 
 
 Street Railroad Co.'s Appeal (32 Oal. 
 
 499) 712, 717, 749, 752, 785 
 
 Striker v. Kelly (8 Denio, 323) 304 
 
 V. Kelly (7 Hill, 9) 217, 304, 341, 599 
 Strickland u. Railroad Co. (27 Miss. 
 
 209) 179 
 
 Strohm b. Iowa City (47 Iowa, 42) 295, 909 
 
 Strong in re (20 Pick. 484) 832, 835 
 
 (Kirby (Conn.), 345) 819,824 
 
 w. Darling (9 Ohio, 201) 213,625 
 
 Stroud V. Philadelphia (61 Pa. St. 
 
 2.55) 610, 742, 745, 802, 804 
 
 Struthers «. Railway Co. (87 Pa. St. 
 
 282) 705 
 
 Stuart 0. Cambridge (125 Mass. 102) 464, 
 
 478 
 
 V. Machiasport (48 Me. 477) 1023 
 
 «. Palmer (74 N. Y. 183) 800 
 
 Stnber's Road (28 Pa. St. 199) 652, 665 
 
 Studley v. Oslikosh (45 Wis. 380) 1028, 
 
 1052 
 Sturgeon v. Board (65 Ind. 302) 675 
 
 Sturtevant o. Alton (3 McLean, 393) 220, 
 
 436, 441 
 
 V. Liberty (46 Me. 457) 480 
 
 Stuyvesant u. New York (7 Cow. 588) 125, 
 
 324, 330 
 
 V. Woodruff (1 Mich. 145) 635 
 
 Sublett V. Bedwell (47 Mias. 266) 224 
 
 V. Bedwell (12 Am. Rep. 3.3ri) 224 
 
 Submarine Telegraph Co. o. Dickson 
 
 (15 C. B. N. S. 750) 1049 
 
 Succession of Cavelier (2 Rob La. 
 
 438) 668 
 
 Suffield V. Hatliaway (44 Conn. 521) 896 
 Sugar Co. o. Jersev Oity (26 N. J. 
 
 Eq. 247) " 678 
 
 Sullivan u. Boston (126 Mass. 540) 965 
 
 V. McCammon (51 Ind. 264) 941, 944 
 
 V. New York (53 N. Y. 652) 71, 234 
 
 Sumner r. First Parish (4 Pick. 361) 941 
 
 Sunbury, etc. Railroad Co. w. Cooper 
 
 (7 Am. Law Reg. 158) 326 
 
 Sun Ins. Co. v. Mayor (8 N. Y. 241) 729, 
 
 744 
 Supervisors v. Bates (17 N. Y. 242) 442 
 ti. Bowen (4 Lans. 24) 471, 934 
 
 V. Briggs (2 Denio, 26) 946 
 
 V. Briggs (2 Hill, 135) 946 
 
 V. Coflnbury (1 Mich. 355) 243 
 
 V. Durant (9 Wall. 415) 845, 851, 871 
 V. Durant (9 Wall. 736) 862 
 
 V. Farwell (25 111. 181) 482 
 
 V. Galbraith (99 U. S. 214) 499, 510, 
 
 536 
 u. Gorrell (20 Gratt. (Va.) 484) 929 
 V. Hall (47 Wis. 208) 805 
 
 V. IVIanny (55 111. 160) 940 
 
 V. Patterson (56 III. Ill) 570 
 
 u. People (25 111. 297) 804 
 
 Supervisors v. Rogers (7 Wall. 175) 851, 
 
 875 
 
 «. Schenck (5 Wall. 772) 468, 491, 499, 
 
 509, 510, 513, 524, 541, 544, 549 
 
 0. Stimpson (4 Hill, 136) 261 
 
 V. United States (4 Wall. 4.35) 825, 
 
 842, 845, 848 
 
 V. United States (18 Wall. 71) 485, 
 
 501, 838, 853 
 
 V. Welder (64 111. 427) 661, 736, 764 
 
 Surgi V. Snetchman (11 La. An. 887) 777 
 
 Sussex V. Strader (3 Harr. (N. J.) 108) 719 
 
 Sutton V. Board of Police (41 Miss. 
 
 236) 951, 962, 973, 981, 1009 
 
 V. Clark (6 Taunt. 28) 1001, 1007, 
 
 1008 
 
 V. Cole (3 Pick. 232) 292, 669 
 
 V. Louisville (5 Dana, 28) 621 
 
 V. Wauwatosa (29 Wis. 21) 1041 
 
 Sutton's Hospital Case (10 Rep. 31) 831 
 
 Suydam v. Keys (18 Johns. 444) 264 
 
 Swails V. State (4 Ind. 616) 109 
 
 Swain v. Comstock (18 Miss. 463) 111 
 
 Swan V. Williams (2 Mich. 427) 596, 599 
 
 Swann v. Buck (40 Miss. 268) 263 
 
 V. Cumberland (8 Gill, 160) 604, 796, 
 
 924, 925 
 
 Swartz ». Flatboats (14 La. An. 243) 136 
 
 V. Page ( 13 Mo. 603) 576, 649 
 
 Sweeny v. Port Burwell (17 U. C. C. 
 
 P. 574) 141 
 
 0. Spooner (8 B. & S. 329) 428 
 
 Sweet u. Carver County (16 Minn. 
 
 106) 484 
 
 V. Wabash (41 Ind. 7) 357 
 
 Sweetzer v. Hay (2 Gray, 49) 243 
 
 V. Mead (6 Mich. 107) 446 
 
 Swift V. Berry (1 Root (Conn.), 448) 720 
 
 V. Newport (7 Bush, 37) 790 
 
 w. New York (17 Hun, 518) 476 
 
 V. Poughkeepsie (37 N. Y. 514) 944 
 
 V. Williamsburgh (24 Barb. 427) 442, 
 
 476, 973 
 
 Sykes b. Columbus (55 Miss. 115) 540, 
 
 642, 549, 84if 
 
 V. Lafferty (27 Ark. 407) 443 
 
 0. Pawlet (43 Vt. 446) 1025 
 
 V. Pawlet (5 Am. Rep. 295) 1025 
 
 Syramers v. Regem (Cowp. 502) 273, 279 
 
 Symonds v. Board (71 111. 365) 961, 963 
 
 Tackaberry v. Keokuk (32 Iowa, 155) 770 
 
 Taft V. Montague (14 Mass. 286) 461 
 
 V. Pittsford (28 Vt. 286) 441, 478, 480, 
 
 481 
 
 Tailors of Ipswich (11 Rep. 64) 412 
 
 Tainter k. Mayor (19 N. J. L. 46) 898 
 
 V. Worcester (123 Mass. 311) 171, 982 
 
 Taintor v. Morristown (19 N. J. Eq. 
 
 46) 663 
 
 Talbot V. Dent (9 B. Mon. 526) 64, 179 
 V. Grace (80 Ind. 389) 137, 636 
 
 V. Hudson ( 16 Gray, 417) 692, 695 
 V. Queen Anne Co. (60 Md. 245) 30 
 V. Richmond (22 Alb. L.J. 67) 632, 635 
 
ex 
 
 TABLE OF CASES CITED. 
 
 Talbot V. Whipple (7 Gray, 122) 1066 
 Talcott V. Pine Grove (1 B. & B. N. 
 
 S. 50) 497 
 
 Tallahassee v. Fortune (3 Fla. 19) 1037, 
 
 1047 
 Tallant v. Burlington (39 lovra, 543) 798, 
 
 940 
 Tallman v. Janesville (17 Wis. 71) 741 
 Talman v. Butler Co. (12 Iowa, 531) 729 
 Tanner v. Albion (5 Hill, 121) 380 
 
 Tarlton in re (2 Ala. 35) 604, 923, 924 
 Tarner u. Walker (L. K. 1 Q. B. 641) 166 
 V. Walker (2 Q. B. 300) 166 
 
 Tarry v. Ashton (L. R. 1 Q. B. Div. 
 
 314) 1028 
 
 Tarver v. Commissioners (17 Ala. 
 
 527) 868 
 
 Tash V. Adams (10 Cush. 252) 40, 176, 910 
 
 Tate i;. Missouri (64 Mo. 149) 998 
 
 V. Railroad Co. (7 Ind. 470) 665, 696, 
 
 699 
 
 Tatem v. Wright (23 N. J. L. 429) 736 
 
 Tavener's Case (Raym. 446) 862 
 
 Tax Court v. Railroad Co. (50 Md. 417) 788 
 
 Taylor v. Americus (39 Ga. 59) 432, 924 
 
 0. Board of Health (31 Pa. St. 73) 943, 
 
 944, 946 
 
 V. Boulware (17 Tex. 74) 213 
 
 (I. Caesar (11 U. C. Q. B. 461) 223 
 
 V. Carondelet (22 Mo. 105) 323, 349, 
 
 35.3, 575, 576 
 
 V. Chandler (9 Heisk. 349) 754, 755 
 
 «. Douner (31 Cal. 480) 763 
 
 0. Fort Wayne (47 Ind. 281) 211, 213, 
 
 626 
 V. Gloucester (1 Roll. 409) 276 
 
 V. Gloucester (3 Bulst. 190) 277 
 
 V. Greenhalgli (L. R. 9 Q. B. 
 
 487) 1047 
 
 V. Griswold (17 N. J. Eq. 222) 329, 
 
 OQO gOg 03-7 
 
 V. Henry (2 Pick. 397) 289,' 308,' 311, 
 
 313, 314 
 
 V. Newberne (2 Jones Eq. 141) 62, 
 
 180, 189, 731 
 
 u. Palmer (31 Cal. 241) 290, 341, 752, 
 
 776, 810 
 
 V. Parish, etc. (L. R 6 C. P. 309) 223 
 
 V. Peckham (8 R. I. 319) 1032, 1034 
 
 t>. Peekhara (5 Am. Rep. 578) 1034 
 
 V. People (66 111. 322) 940 
 
 V. Plymouth (8 Met. 462) 954, 956 
 
 . I'. Porter (4 Hill, 140) 586, 695 
 
 V. School Commissioners (5 Jones 
 
 Law, 98) 823 
 
 V. St. Louis (14 Mo. 20) 683, 1000, 
 
 1003 
 
 17. Strong (3 Wend. 384) 238 
 
 V. Taylor (10 Minn. 112) 226 
 
 Taylor's Case (1 Rol. 5) 194 
 
 Taymouth v. Krohler (35 Mich. 22) 461 
 
 Teagarden v. McBean (33 Miss. 283) 610, 
 
 641 
 Tsar V. Preebody (4 C. B. C. B 228) 726 
 Tecumseh v. Phillips (5 Neb. 305) 71,261 
 
 Teft i>. Size (10 111. 43^) 414 
 
 Telegraph Co. v. Lieb (76 III. 172) 736 
 Temp. Hall Ass. u. Giles (33 N. J. L. 
 
 260) 1059 
 
 Templin «. Iowa City (14 Iowa, 59) 1070 
 Ten Eyek v. Canal Co. (3 Harr. 200) 78 
 Tenney v. Lenz (16 Wis. 566) 358, 360 
 V. Lumber Co. (43 N. H. 343) 281 
 Terre Haute v. Lake (43 Ind. 480) 327, 443, 
 
 446 
 
 .V. Turner (36 Ind. 522) 678, 687, 
 
 767 998 999 
 
 Terrett «. Sliaron (34 Conn. 105) 909^ 910 
 
 V. Taylor (9 Cranch, 43) 92, 556 
 
 Teft-y V. Bank (18 Wis. 87) 93 
 
 V. Mayor, &e. of New York (8 Bosw. 
 
 594) 991 
 
 Tesh V. Commonwealth (4 Dana, 522) 417 
 
 Thatcher v. England (3 C. B. 254) 166 
 
 V. Jefferson Co. (13 Kan. 182) 472 
 
 Thayer v. Boston ( 19 Pick. 510) 138, 636, 
 
 704, 970, 974, 975, 979, 985, 991, 
 
 992, 1066 
 
 u. Montgomery Co. (3 Dillon, C. 
 
 C. R. 389) 493, 494 
 
 V. Tyler (5 Allen, 95) 130 
 
 Theological Sem. v. Cliilds (4 Paige, 
 
 418) 561 
 
 Thetford's Case (12 Vin. Abr. 90) 414 
 Thicknesse v. Canal Co (4 M. & W. 
 
 472) 194 
 
 Thillate v. Stanley (14 Ind. 409) 587 
 
 Third Avenue Railroad 0. N. Y. (54 
 
 ■ N. Y. 159) 898 
 
 Thirty-Fourth Street in re (10 Pa. 
 
 197J 796 
 
 Thomas v. Ashland (12 Ohio St. 124) 67, 
 
 168, 430 
 V. Commissioners (5 Ind. 4) 68 
 
 V. Dakin (22 Wend. 9) 60 
 
 V. Gain (35 Mich. 156) 748, 758, 760, 
 761, 793, 804, 805 
 V. Leland (24 Wend. 65) 100, 101, 102 
 V. Mt. Vernon (9 Ohio, 290) 365, 414, 
 
 422 
 
 V. Port Hudson (27 Mich. 320) 151, 
 
 155, 469 
 
 V. Richmond (12 Wall. 349) 118, 168, 
 
 329, 340, 441, 442, 451, 458, 481, 
 
 486 
 
 V. Ringwood (L. R. 9 Eq. 418) 631 
 
 V. Scotland Co. (3 Dill. C. C. R. 7) 635, 
 
 536 
 
 I.. White (12 Mass. 369) 242, 243 
 
 Thompson v. Abbott (61 Mo. 1^) 200 
 
 V. BoonviUe (61 Mo. 282) 778, 1000, 
 
 1003 
 V. Bridgewater (7 Pick. 188) 1024 
 V. Nicholson (12 Rob. 326) 242 
 
 V. Northeastern Ry. Co. (3 L. T. 
 
 N. S. 618) 1049 
 
 V. Pacific Railroad Co. (9 Wall. 
 
 579) 54, 734 
 
 V. Stickney (6 Ala. 579) 266 
 
 Thomson in re (52 Ala. 98) 821 
 
TABLE OF CASES CITED. 
 
 CXI 
 
 Thomson v. Carroll (22 How. 422) 329, 781 
 V. Floyd (2 Jones (N. C), Law 
 
 313) 731 
 
 ». Gibson (7 M. & W. 546) 377 
 
 V. Lee County (3 Wall. 327) 118, 180, 
 188, 199, 479, 501, 503, 540 
 ». Mavor (UN. Y. 115) 137,139 
 
 u. Mt." Vernon (11 Ohio St. 688) 340 
 V. Paciflu Railroad Co. (9 Wall. 
 
 579) 54 
 
 V. People (23 Wend. 537) 8t)3 
 
 0. Pittston (59 Me. 545) 178, 187 
 
 V. Schermerhorn (6 N. Y. 92) 123, 598, 
 
 778 
 
 V. Sunderland Gas Co. (L . R. 2 
 
 Ex. Div. 429) 690 
 
 Thorndike v. Boston (1 Met. 245) 223 
 
 TliorntonK. Grant (10 R. L 477) 136 
 
 V. Smith (1 Wash. 106) 431 
 
 Thorpe «. Brumfitt (L. E. 8 Ch. Ap. 
 
 650) 723, 724 
 
 Thurlow V. Bogart (15 U. C. C. P. 1) 661, 
 
 662 
 
 Thurston v. Hancock (12 Mass. 220) 1004 
 
 V. St. Joseph (51 Mo. 519) 646, 1000, 
 
 1005, 1067, 1073, 1074, 1076, 1077 
 
 w. St. Joseph (11 Am. Rep. 463) 1067, 
 
 1074, 1076 
 
 Tidderley's Case (1 Sid. 14) 267 
 
 Tidewater Co. v. Coster (18 N. J. Eq. 
 
 518) 594, 746, 748, 760, 804 
 
 Tiemey B.Dodge (9 Minn. 166) 64,114, 
 418, 424, 428, 431, 924 
 Tiffin 0. McCormick (34 Ohio St. 638) 1058 
 Tileson v. Newman (23 Vt. 421) 217 
 
 Tillman u. People (12 Mich. 401) 631, 
 
 610 
 Tilmes v. Marsh (67 Pa. St. 512) 662 
 Tilton i;. Sanbornton (55 N. H. 610) 216 
 Times v. State (26 Ala. 165) 430 
 
 Timothy v. Simpson (1 C. M. & R. 
 
 757) 238 
 
 Timson in re (L. E. 5 Exch. 2.57) 238 
 Tiiikham v. Tapsgott (17 N. Y. 144) 392 
 Tinsman i'. Railroad Co. (2 Dutch. 
 
 148) 75. 76 
 
 Tipping V. St. Helen's (4 B. & S. 608) 376 
 Tisdale v. Minnock (46 111. 9) 412 
 
 V. Norton (8 Mete. 388) 1024, 1025 
 Titler v. Iowa Co. (48 Iowa, 90) 962 
 
 Titus V. North Bridge (97 Mass. 258) 1035 
 Tobacco Co. v. Woodroffe (7 B. & C. 
 
 838) 412 
 
 Tobey v. Wareham (2 Allen, 594) 286 
 
 Todd V. Birdsall (1 Cow. 260) 261 
 
 V. Perry (20 V. C. Q. B. 618) 244 
 
 V. Railroad Co. (19 Ohio St. 514) 033. 
 
 645 
 V. Troy (61 N. Y. -506) 1021, 1026, 
 1040, 1048 
 Tolan V. Lansing (38 Mich. 315) 969 
 
 Toledo, etc. Railroad Co. v. Jackson- 
 ville (67 III. 37) 707 
 Tolland v. Willington (26 Conn. 578) 719, 
 
 720, 1018 
 
 Toll Bridge Co. v. Railroad Co. (17 
 
 Conn. 40) 580 
 
 Toll Co. V. Betsworth (30 Conn. 380) 262 
 Tolman v. Marlborough (3 N. H. 67) 977 
 Tomlinson v. Branch (15 Wall. 460) 774 
 Tompert v. Lithgow (1 Bush, 176) 231, 
 
 276 278 
 
 Toms V. Whitby (35 U. C. Q. B. 195) 1018 
 
 0. Whitby (37 U. C. Q. B. 100) 1018, 
 
 1023 
 Tone 0. Mayor (70 N. Y. 157) 476, 477 
 Toomey v. London, etc. Railroad Co. 
 
 (3 C. B. N. S. 146) 1021 
 
 Topeka v. Tuttle (6 Kan. 425) 1037 
 
 Topping V. Gray (7 Hill, 259) 291 
 
 Topsham v. Rogers (42 Vt. 199) 460 
 
 Torlmsh v. Norwich (38 Conn. 225) 982 
 V. Norwich (9 Am. Rep. 395) 982 
 Torry v. Milbury (21 Pick. 64) 41, 288 
 Totten V. Halligan (13 U. C. C. P. 
 
 567) 661 
 
 Tottendell o. Glazby (2 Wils. 266) 411 
 Touchard v. Toueliard (5 Cal. 306) 89 
 Tounier v. Municipality (5 La. An. 
 
 298) 474 
 
 Towle V. State (3 Fla. 202) 827 
 
 Towles V. Justices (14 Ga. .391) 720 
 
 Town w. Blackberry (29 111. 137) 587 
 
 w. Culver (19 Wall. 83) 491, 499 
 
 Town Council v. Burnett (34 Ala, 
 
 400) 944 
 
 u. Court (IE. &E. 770) 285 
 
 V. Harbers (6 Rich. Law, 96) 363 
 
 V. Lithgoe (7 Rich. Law, 435) 6.35 
 
 638, 640, 641 
 
 Town of Coloma u. Eaves (92 U. S. 
 
 484) 509, 512 
 
 Town of Elmwood a. Marcy (92 U. 
 
 S. 28U) 501, 514, 541 
 
 Town of Flatbush (60 N. Y. 398) 591, 823 
 Town of Guelph v. Canada Co. (4 
 
 Grant (Can.), 6-54) 650 
 
 Town of Guelph in le (24 U. C. Q. B. 
 
 238) 390 
 
 Town of Guilford o. Supervisors, etc. 
 
 (13 N. Y. 143) 729 
 
 Town of Paulet v. Clark (9 Cranch, 
 
 292) 626, 623 
 
 Town of Qiieensbury u. Culver (19 
 
 Wall. 83) 846 
 
 Town of Venice v. Breed (65 Barb. 
 
 597) 501 
 
 V. Murdock (92 U. S Sup. C. 494) 516 
 
 Towns V. Tallahassee (11 Fla. 130) 361 
 
 Townsend in re (39 N. Y. 174) 595 
 
 V. Des Moines (42 Iowa. 657) 1052 
 
 V. Everett (4 Ala. 607) 243 
 
 I). Hoyle (20Conn. 1) 454,596,676 
 
 Township v. Learsley (94 U. S. 310) 595 
 
 V. Carey (3 N. J. L. 377) 265 
 
 K. Linn (36 Pa. St. 431) 265 
 
 ». Taloott (19 Wall. 666) 491,541 
 
 V. Township (11 Iowa, 506) 937 
 
 Tracy v. Swartout (10 Pet. 80) 265 
 
 Trafton v. Alfred (15 Me. 258) 260 
 
cxn 
 
 TABLK OF CASES CITED. 
 
 Transportation Co. «. Chicago (99 
 
 U. S. 635) 653, 654, 996, 1001, 
 1003, 1004, 1007 
 Transportation Co. v. Wheeling (9 
 
 W. Va. 170) 785 
 
 Transportation Co. v. Wheeling (99 
 
 U. S. 273) 785 
 
 Traphagen v. Jersey City (29 N. J. 
 
 Eq. 206) 688, 921 
 
 Trask i>. McGiiire (18 Wall. 206) 773 
 
 Treadway v. Schnauber (1 Dak. Ter. 
 
 236) 441 
 
 Treadwell v. Commrs. (11 Ohio St. 
 
 190) 31, 523, 524, 549, 962 
 
 V. New York (1 Daly, 123) 992 
 
 Treat n. Middleton (8 Conn. 243) 819, 828 
 Trent, etc. Co. v. Marshall (10 U. C. 
 
 C. P. 336) 206 
 
 Trenton Kailrnad in re (6 Whart. 
 
 (Pa.) 25) 652, 665 
 
 Trenton, etc. Co. v. Raff (36 N. J. L. 
 
 335) 999 
 
 Trigally v. Memphis (6 Coldw. 382) 322, 
 
 345, 430 
 Trigg V. Glasgow (2 Bush, 594) 783 
 
 Trimble v. Buoyrus (21 Alb. L. J. 76) 369 
 Tripp V. Lyman (37 Me. 250) 1021, 1053 
 Trippe v. Frazier (4 H. & J. 446) 566 
 
 Trombley v. Humphrey (23 Mich. 471) 690 
 Trott V. Warren (11 Me. 227) 460 
 
 Trowbridge v. Mayor (7 Hill, 429) 139 
 Troy V. Railroad Co. (13 Kan. 70) 312, 325 
 I'. Railroad Co. (23 N. H. 83) 679, 721 
 Truax v. Pool (40 Iowa, 256) 213 
 
 Truchelut v. City Council (1 N. & 
 
 McC. 227) 105, 342, 412, 430 
 
 True V. Melvin (43 N. H. 503) 855 
 
 Trueheart v. Addicks (2 Tex. 217) 225 
 
 Trumpler v. Bemerly (39 Cal. 490) 597 
 
 Trustees m re (57 How. Pr. 500) 123 
 
 0. Aberdeen (21 Miss 645) 85, 97, 106 
 
 V. Bradbury (11 Me. 118) 106 
 
 V. Campbell (16 Ohio St. 11) 208 
 
 V. Cherry (8 Ohio St. 564) 63, 444, 
 
 451, 486 
 
 V. Chicago (12 111. 403) 597 
 
 V. Davenport (7 Iowa, 213) 606 
 
 V. Erie (31 Pa. St. 615) 112, 327, 343 
 
 «. Exeter (58 N. H.) 774 
 
 V. Exeter (21 Alb. L. J. 278) 774 
 
 V. Hill (6 Cow. 23) 247, 293 
 
 V. Keeling (4 Denio, 341) 363 
 
 a. King (12 Mass. 546) 662 
 
 V. Leffler (23 111. 90) 408 
 
 V. McConnell (12 111. 140) 117, 774,788 
 
 V. Osborne (9 Ind. 458) 314, 763 
 
 V. Parks (10 Me. 441) 60 
 
 V. Peaslee (16 N. H. 317) 204, 208, 
 
 568 
 V. People (63 111. 299) 736 
 
 V. People (87 111. 303) 331 
 
 V. Reneau (2 Swan, 94) 208 
 
 V. Schroeder (68 111. 363) 354, 951 
 V. Tatman (13 111. 30) 76, 79, 90 
 
 «. Taylor (30 N. J. Eq. 613) 114 
 
 Trustees v. Walsh (57 111. 363) 374. 6.35 
 V. Winston (5 S & P. 17) 97 
 
 Tucker v. Aikin (7 N. H. 113) 261, 238 
 V. Eldred (6 R. I. 404) 684 
 
 V. Hennecker (41 N. H. 317) 1023 
 v. Justices (13 Ired. Law, 434) 303 
 V. Randolph (75 N. C. 267) 164 
 
 V. Rochester (7 Wend. 254) 976 
 
 V. Tower (9 Pick. 109) 683 
 
 .,. Virginia City (4 Nev. 20) 172, 
 
 373 
 
 Tuff«. Warman (2 C. B. N. S 740) 1023 
 
 V. Warman (5 C. B. N. S. 573) 1023 
 
 Tufts V. Charlestown (98 Mass. 583) 800 
 
 'legman v. Chicago (78 111. 405) 331, 334, 
 
 336 373 
 
 Tuley V. State (1 Ind. 500) ' 246 
 
 Tupelo V. Board (56 Miss. 332) 946 
 
 Turner in re (5 Ohio, 542) 818, 825 
 
 V. Althaus (6 Keb. 54) 688, 731, 793, 
 
 944 
 B. Brantford (13 U. C. C. P. 
 
 109) 1011 
 
 ... Clark Co. (67 Mo. 243) 243 
 
 c. Dartmouth (13 Allen, 291) 1008 
 
 V. Omaha (6 Keb. 54) 731 
 
 Turney v. Chamberlain (15 111. 271) 559, 
 
 671 
 Turnpike Co. v. Berry (5 Ind. 286) 719, 
 
 720 
 
 V. McKean (10 Johns. 154) 316 
 
 ,). People ('.16 U. S. 63) 677 
 
 0. Railroad Co. (2 Harr. (N. J.) 
 
 314) 653 
 
 Turpen v. County Commissioners (7 
 
 Ind. 172) 253 
 
 Turrill v. Grattan (52 Cal. 97) 7U7 
 
 Tutill V. West Ham, etc. (L. R. 8 C. 
 
 P. 447) 1024 
 
 Tuttle V. Everett (51 Miss. 27) 940, 943 
 
 V. Hoiyoke (6 Gray, 447) 1022 
 
 I'. State (4 Conn. 68) 402 
 
 Thirty-Ninth Street in re (1 Hill, 
 
 189) 638 
 
 Tyler v. People (66 III. 322) 77 1 
 
 Tyler Exrs. v. E. & P. Railroad Co. 
 
 (9 Bush, 510) 538 
 
 Tyson v. School Directors (51 Pa. 
 
 St. 9) 187 
 
 Udall V. Trustees (19 Johns. 175) 210 
 
 Ulam V. Boyd (87 Pa. St. 477) 448 
 Underhill v. Manchester (45 N. H. 
 
 214) 957 
 
 .,. Smith (Chip. (Vt.) 81) 813 
 
 K. Trustees (17 Cal. 172) 480 
 Underwood «. Carney (1 Cush. 
 
 (Mass.) 235) 726 
 1). Newport Lyceum (5 B. Mon. 
 
 130) 469 
 
 u. Stuyvesant (19 Johns. 186) 638 
 
 Union v. Crawford ( 19 Conn. 331) 961 
 
 Union Bank i>. State (9 Yerg. 490) 732 
 
 Union Pacific Railroad Co. v. Colfax 
 
 Co. (4 Neb. 450) 492 
 
TABLE OF CASES CITED. 
 
 CXIU 
 
 Union Pacific Kailroad Co. v. Davis 
 
 County (6 Kan. 256) 95, 532, 858 
 V. Dodge (98 U. S. 541) 942, 943, 947 
 V. Hall (91 U. S. 348) 856, 857 
 
 V. Lincoln (1 Dillon, C. C. R. 314) 734 
 V. Lincoln (2 Dillon, C. C. B. 297) 907 
 V. Lincoln ('ounty (.3 Dillon, C. 
 
 C. B. 300) 506 
 
 V. Merrick (8 Dillon, C. C. R. 
 
 359) 506 
 
 V. Penniston (18 Wall. 5) 733 
 
 Union Railroad Co. v. Cambridge (11 
 
 Allen, 287) 395 
 
 Uniontown v. Commonwealth (34 Pa. 
 
 St. 293) 828 
 
 United Bretliren Church v. Van Du- 
 
 sen (37 Wis. 54) 305 
 
 United States v. Addison (6 Wall. 
 
 291) 258,259 
 
 V. Addison (22 How. (U. S.) 174) 835, 
 
 872 
 o. Baltimore, etc. Railroad Co. 
 
 (17 Wall. 322) 76, 89, 100, 101, 
 
 129, 772, 773, 1045 
 
 V. Bank, etc. (21 How. 856) 523 
 
 0. Barker (1 Paine, 152) 261 
 
 V. Boice (2 McLean, 352) 261 
 
 Dnited States o. Boutwell (17 Wall. 
 
 604) 873 
 
 V. Boutwell (17 Wall. 604) 860, 872, 
 873, 877 
 V. Boyd (5 How. 50) 243 
 
 V. Bradley (10 Pet. 343) 240, 242 
 I). Bridge Co. (6 McLean, 517) 588 
 p. Brown (9 How. 487) 254 
 
 V. Chicago (7 How. 185) 690, 625, 
 633, 638, 639 
 V. Clark Co. (96 U. S. 211) 843 
 
 V. Dandridge (12 Wheat. 64) 242 
 V. Duluth (1 Dill. 469) 133 
 
 V. Fanning (Morris (Iowa), 348) 143 
 V. Fillebrown (7 Pet. 28) 313 
 
 V. Fort Scott (99 U. S. 152) 156, 159 
 V. Guthrie (17 How. 284) 826 
 
 «. Hart (Pet. (C.C.) 390) 657 
 
 .;. Hodsen (10 Wall. 395) 242 
 
 c. Hoar (2 Mason, C. C. E. 134) 667 
 V. Hudson (7 Cranch, 32) 271 
 
 V. Keokuk (6 Wall. 614) 842, 861 
 i>. Kirkpatrick (9 Wheat. U. S. 
 
 735) 667 
 
 V. Land Commissioners (5 Wall. 
 
 563) 826 
 
 V. Lawrence (3 Dall. 42) 819 
 
 V. Le Baron (19 How. 73) 241 
 
 V. Lincoln Co. (5 Dillon, 184) 844 
 P.Linn (15 Pet, 290) 240,242 
 
 V. Macon Co. (99 U. S. 682) 843 
 
 V. McKelden (3 McArthur) 289 
 
 United States v. McKilden (8 Rep. 
 
 778) 286 
 
 ./. Memphis (97 U. S. 284) 81, 80, 213, 
 
 790, 848 
 
 V. Miller Co. (4 Dillon, 233) 488 
 
 V. New Orleans (2 Woods, 230) 180 
 
 United States v. New Orleans (98 U. 
 
 S. 881 ) 783, 762, 838, 844, 845 
 V. Prescott (3 How. 678) 262 
 
 V. Seaman (17 How. 226) 826 
 
 V. Silverman 4 Dill. 224) 851 
 
 V. Thompson (98 U. S. 487) 667 
 
 V. Tingey (a Pet. 114) 240 
 
 V. Union Pacific Railroad Co. (4 
 
 Dillon, 479) 862, 870 
 
 V. Union Pacific Railroad Co. (91 
 
 : U. S. 343) 862, 870 
 
 V. Union Pacific Railroad Co. (91 
 
 U. S. 72) 499 
 
 V. Vernon Co. (2 Centr. Law 
 
 Jour. 771) 864 
 
 V. Vernon Co. (8 Dillon, 281) 864 
 V. Wrigljt (1 McLean, 509) 249, 251 
 University v. Maultsby (8 Ire. Eq. 
 
 257) 83 
 
 r. People (80 111. 33) 774 
 
 V. Walden (15 Ala. 655) 265 
 
 i\ Winston (5 S. & P. 17) 83 
 
 Updegraffu. Crans (47 Pa. St. 103) 291 
 
 Updike V. Campbell (4 E. D. Smith, 
 
 570) 380 
 
 Upton V. Railroad Co. (8 Cush. 600) 619 
 V. Starr (3 Ind. 538) 261 
 
 Urmey v. Wooden (1 Ohio St. 160) 568 
 Utica ». Miller (62 Ind. 230) 476 
 
 Utica Ins. Co. v. Scott (8 Cow. 708) 892, 893 
 
 Vail V. Beach (10 Kan. 214) 774 
 
 Valpey v. Manley (1 C. B. 692) 943 
 
 Van Antwerp in re (56 N. Y. 261) 72, 727, 
 
 742, 808 
 Vanarsdall v. State (65 Ind. 176) 575 
 
 Vanblaricum v. State (7 Blackf. 209) 621 
 Vance o. Bank (1 Blackf. 80) 54, 109 
 
 V. Little Rock (30 Ark. 435) 86, 117, 
 762, 839 
 Vanck u. Corp. of N. Y. (4 Johns. 
 
 (N. Y.) 53) 673 
 
 Vandalia. etc. Co. v. Surrell (88 III. 
 
 535) 788 
 
 Vanderbilt v. Adams (7 Cowen, 349) 167, 
 
 171, 394 
 Vandersraith's Case (10 Pa. Law J. 
 
 523) 660 
 
 Vanderville v. Taylor (65 N. Y. 341) 1065, 
 
 1070 
 Vandever v. Mattock (3 Ind. 479) 239 
 Vandine, Petitioner (6 Pick. 187) 838, 371 
 Vandyke v. Cincinnati (1 Disney, 
 
 582) 375, 1021, 1048 
 
 Van Eppes v. Commissioners (25 
 
 Ala. 460) 962 
 
 Van Hoffman v. Quincy (4 Wall. 536) 93, 
 
 95, 199, 502, 651, 765, 838, 842, 
 
 845, 846 
 
 Van Hostrup v. Madison City (1 Wall. 
 
 291 ) 120, 601, 509, 524, 527 
 
 Van Keuren o. Johnson (3 Denio, 
 
 182) 261 
 
 Van Ness v. Washington (4 Pet. 
 
 (U. S:) 232) 648 
 
CXIV 
 
 TABLE OF CASES CITED. 
 
 Van Orsdall ». Hazard (3 Hill, 243) 223, 
 
 249, 250 
 Van Pelt o. Davenport (42 Iowa, 308) 676, 
 1049, 1065, 1073, 1078 
 Vanover v. Davis, etc. Justices (27 
 
 Ga. 354) 166, 918 
 
 Vansant ». Roberts (8 Md. 119) 208 
 
 Van Sicklen ». Burlington (27 Vt. 70) 41, 
 
 171 
 Van Swartow v. Commonwealth (24 
 
 Pa. St. 181) 418,425,430 
 
 Vantilburgh v. Sliann (24 N. J. L. 
 
 740) 801 
 
 Van Valkenburgh v. Milvfaukee (30 
 
 Wis. 338) 639 
 
 Van Wickle v. Railroad Co. (17 N. J. 
 
 Eq. 162) 597 
 
 Van Wormer v. Mayor (18 Wend. 
 
 169) 373 
 
 Varden v. Mount (15 Bush, 345) 349, 351 
 Varick o. New York (4 Johns. Ch. 
 
 53) 897, 898 
 
 V. Smith (5 Paige, 137) 586, 592, 594 
 Varner v. Nobleborough (2 Me. 121) 484 
 Vars 0. Grand Trunk Ry. Co. (23 U. 
 
 C. C. P. 143) 1028 
 
 Vason V. Augusta (38 Ga. 542) 127, 235, 
 
 369, 424, 425 
 
 V. Railroad Co. (43 Ga. 631) 696 
 
 Vawter v. Franklin College (53 Ind. 
 
 88) 304, 310 
 
 Veazie v. China (50 Me. 518) 127, 178 
 V. Fenno (8 Wall. 533) 729 
 
 V. Mayo (45 Me. 560) 702 
 
 V. Mayo (49 Me. 156) 702 
 
 V. Railroad Co. (49 Me. 119) 1061, 1062 
 V. Rockland (68 Me. 511) 937 
 
 Veeder B.Lima (19 Wis. 280) 189,547, 
 
 548, 549 
 
 Venice v. Murdock (92 U. S. 494) 501, 
 
 510, 516, 547 
 
 Ventura v. Thompson (51 Cal. 577) 597, 
 
 621 
 Vermilye v. Adams Express Co. (21 
 
 Wall. 138) 553 
 
 Vernon Soc. v. Hills (6 Cow. 23) 246 
 Verrill v. Minot (31 Me. 299) 1042 
 
 Verrior v. Sandwich (1 Sid. 305) 250 
 Vespra v. Cook (26 U. C. C. P. 182) 662 
 Vick V. Vioksburg (1 Miss. 879) 629 
 
 Vicksburg v. Hennessey (64 Miss. 
 
 363) 1024, 1039 
 
 V. Lombard (51 Miss. 125) 154, 501 
 V. Tobin (100 U. S. 430) 133 
 
 Vidal V. Mayor, Girard, etc. (2 How. 
 
 127) 562, 568, 564, 568, 914 
 
 Vinal V. Dorchester (7 Gray, 421) 1014, 
 
 1064 
 Vincennes v. Richards (23 Ind. 381) 999 
 Vincennes University v. Indiana (14 
 
 How. 268) 54, 195, 198 
 
 Vincent v. Nantucket (12 Cush. 103) 40, 
 
 117, 176, 451 
 
 Vintners v. Passey (1 Burr. 237) 238, 248, 
 
 838, 410, 412 
 
 Vionet v. Municipality (4 La. An. 42) 378 
 Virginia City v. Mining Co. (2 Nev. 
 
 86) 64, 111 
 
 Visitors u. State (15 Md. 830) 83 
 
 Volkenning in re (52 N. Y. 650) 71 
 
 Von Hofiman v. Quincy (4 Wall, 535) 98, 
 95, 199, 202 
 Von Phul V. Hammer (29 Iowa, 222) 64, 68 
 
 Wabaunsee v. Muhlenbacker (18 Kan. 
 
 129) 365 
 
 V. Walker (8 Kan. 481) 942 
 
 Waco V. Powell (32 Tex. 258) 399 
 
 Waddell v. New York (8 Barb. 95) 998 
 Wafidington v. St. Louis (14 Mo. 190) 134 
 Wade V. Brantford (19 U. C. Q. B. 
 
 207) 936, 971 
 
 V. Richmond (18 Gratt. 583) 213, 
 
 909 911 
 
 Wadleigh v. Gillman (12 Me. 403) 'l67, 
 
 171, 329, 400, 402 
 
 Waffle V. Railroad Co. (58 Barb. 413) 1077 
 
 V. Railroad Co. (53 N. Y. 11) 1076 
 
 V. Railroad Co. (18 Am. Rep. 
 
 467) 1076 
 
 Wager v. Troy Railroad Co. (25 N. Y. 
 
 526) 632, 663, 697, 714, 716 
 
 Wahle V. Reinbock (76 III. 822) 379 
 
 Waite V. North Eastern Railway Co. 
 
 (E. B. & E. 719) 1028 
 
 Wakefield v. Pawtucket (12 R. I. 75) 999, 
 
 1067 
 
 Walcott V. Laurence Co. (26 Mo. 272) 938 
 
 u. People (17 Mich. 68) 790 
 
 V. Swampscott (1 Allen, 101) 978, 984 
 
 V. Walcott (19 Vt. 37) 298 
 
 Waldo u. Wallace (12 Ind. 569) 235, 871, 
 
 418 
 Waldraven v. Memphis (4 Coldw. 
 
 481) 239, 255 
 
 Waldron v. Berry (51 N. H. 136) 265 
 
 V. Lee (5 Pick. 323) 217 
 
 Walker v. Chicago (62 111. 286) 778 
 
 V. Cincinnati (21 Ohio St. 14) 183 
 
 o. City Council (1 Bailey, S. C. 
 
 Eq. 443) 897 
 
 V. Commrs. (17 Wall. 648) 136 
 
 V. Hallock (32 Ind. 239) 265 
 
 V. New Orleans (31 La. An. 828) 360 
 
 V. Railroad Co. (8 Ohio, 38) 606 
 
 ». St. Louis (15 Mo. 574) 942 
 
 J). St. Louis (15 Mo. 568) 944 
 
 V. Springfield (94 111. 364) 736, 740 
 
 V. Swartout ( 1 2 Johns. 444) 263 
 
 Walkley v. Muscatine (6 Wall. 481) 202, 
 
 818, 838, 842, 845, 846 
 
 Wall in re (48 Cal. 279) 63, 322 
 
 Wallace v. Lawyer (54 Ind. 501) 180 
 
 V. Menasha (10 C. L. J. 147) 976 
 
 V. Menasha (4 N. W. Rep. 101) 987 
 
 V. Muscatine (49 Greene, 373) 1071 
 
 V. San Jose (29 Cal. 181) 118, 161, 165, 
 
 441 
 v. Shelton (14 La. An. 498) 610, 740, 
 
 783 
 
TABLE OF CASES CITED. 
 
 CXV 
 
 "Walling 0. Mayor of Shreveport (5 La. 
 
 An. GQO) 602, 972, 974, 976, 986 
 Walsh V. Matthews (29 Cal 123) 752 
 
 V. People (5 Chic. Legal News, 
 541) 930 
 
 Walter v. Columbia (61 Ind. 24) 364 
 
 Waltham v. Keraper (55 111. 346) 961, 1009 
 Walton V. DeveUng (61 111. 201) 230, 882 
 Walworth, etc. v. F. L. &T. Co. (16 
 
 Wis. 629) 305 
 
 Wamesit Co. v. Allen (108 Mass. 352) 589 
 Wammacks v. Holloway (2 Ala. 31) 228, 
 
 432, 881 
 Wanstead v. Hill (13 C. B. N. S. 479) 379, 
 
 380 
 
 Wapello County (13 Iowa, 405) 728 
 
 Ward in re (52 N. Y. 395) 743 
 
 V. Bartholomew (6 Pick. 409) 577 
 
 V. Hartford County (12 Conn. 
 
 404) 130, 963 
 
 V. Jefferson (24 Wis. 342) 1017, 1020, 
 1021, 1048 
 V. Lee (7 E. & B. 426) 1074 
 
 O.Louisville (16 B. Mon. 184) 957 
 V. Maryland (12 Wall. 418) 734, 735, 
 
 766 
 
 V. Maryland (31 Md. 279) 735 
 
 V. Morris (4 H. & McH. (Md.) 340) 735 
 
 V. State (48 Ala. 161) 358 
 
 V. State (31 Md. 279) 734 
 
 V. Turnpike Co. (Spencer (N. J.), 
 
 323) 959 
 
 Warden v. Supervisors (14 Wis. 618) 907 
 
 Waring v. Mobile (24 Ala. 701) 214 
 
 Warner v. Mower (11 Vt. 385) 301 
 
 V. Myers (3 Oregon, 218) 882 
 
 V. People (2 Denio, 272) 253, 255 
 
 Warnoek v. Lafayette (4 La. An. 419) 295 
 
 Warren v. Charlestown (2 Gray, 104) 36, 
 
 38 62 213 215 
 
 V. Grand Haven (30 Mich. 24) 760, 805 
 
 V. Henly (31 Iowa, 31) 728, 729, 742, 
 
 743, 749, 750, 794, 1001 
 
 V. Holyoke (112 Mass. 362) 1018 
 
 V. Lyons City (22 Iowa, 351) 647, 648, 
 
 649, 652, 666 
 
 V. Marcy (97 U. S. 96) 500, 510 
 
 I). Mayor (2 Gray, 84) 413, 414 
 
 V. Portsmouth (97 U. S. 110) 500 
 
 V. Post (97 U. S. 110) 500 
 
 V. Railroad Co. (18 Minn. 384) 614 
 
 V. Wright (3 111. App. 602) 1029, 1052 
 
 Warsop V. Hastings (22 Minn. 437) 225 
 
 Wartman v. Philadelphia (33 Pa. St. 
 
 202) 385, 387, 391 
 
 Warwick v. Butterworth (17 Ind. 129) 455 
 
 V. Mayo (15 Gratt. 528) 433, 606, 662, 
 
 664, 678, 928 
 
 Washburn v. Cass Co. (8 Dillon, C. 
 
 C. R. 251) 493, 535 
 
 V. Franklin (35 Barb. 597) 443 
 
 Washington v. Frank (IJones (Law), 
 
 436) 403 
 
 V. Harvard (8 Cush. 66) , 909 
 u. Mays (1 McArtbur, 63) 358 
 
 Washington v. Mayor of Nashville (1 
 
 Swan, 177) 394, 749, 755, 800 
 Washington v. State (13 Ark. 752) 731, 738 
 Washington Avenue in re (69 Pa. St. 
 
 852) 610, 611, 729, 746, 767, 758, 
 759, 760, 793, 804, 806 
 Washington University v. Rouse (42 
 
 Mo. 308) 773 
 
 Water. Commissioners of Jersey City 
 
 (31 N. J. L. 72) 601 
 
 V. Ware (16 Wall. 566) 1058 
 
 Waterman v. New York (7 Daly, 489) 257 
 Waters v. Leech (3 Ark. 110) 831, 397 
 V. People ( 13 Mich. 446) 262 
 
 w. State (1 Gill, 302) 263 
 
 V. Waterman (2 Root (Conn.), 
 
 214) 265 
 
 Watertown v. Cady (20 Wis. 501) 842 
 
 V. Cowen (4 Paige, Ch. N.Y. 610) 642, 
 
 656 
 
 " V. Fairbanks (65 N. Y. 588) 71, 802 
 
 ». Mayo (109 Mass. 315) 167,401 
 
 Waterville i>. County (59 Me. 80) 729 
 
 Waterworks v. Burkhardt (41 Ind. 
 
 364) 584, 597 
 
 Watkins v. Zwiebusch (47 Wis. 513) 743 
 
 Watson V. Mercer (8 Pet. 88) 541 
 
 V. Railroad Co. (87 Pa. St. 469) 621 
 
 V. South Kingston (5 R. I. 562) 59.'. 
 
 V. Tripp (11 R. I. 98) 1054, 1064 
 
 V. Tripp (23 Am. Rep. 420) 1054, 1064 
 
 V. Water Co. (36 N. J. L. 195) 597 
 
 Wattles u. Lapeer (40 Mich. 624) 769, 940 
 
 Watts V. Carroll Parish (11 La. An. 
 
 141) 856, 857 
 
 V. Scott (1 Dev. 291) 411 
 
 Waugh V. Leech (28 III. 488) 626, 629, 676 
 Waupnn v. Moore (34 Wis. 450) 401 
 
 Waverly Works in re (16 Hun, 57) 601 
 Wayland v. County Commrs. (4 Gray, 
 
 500) 689 
 
 Wayne County ». Benoit (20 Mich. 
 
 176) 272 
 
 V. Detroit (17 Mich. 390) 371, 406, 465 
 
 Weaver v. Devendorf (3 Denio, 117) 265, 
 
 327, 925 
 V. State (39 Ala. 535) 907 
 
 Webb V. Commrs. of Heme Bay 
 
 (L. R. 5 Q. B. 642) 510, 859 
 
 V. Lafayette Co. (67 Mo. 363) 552 
 V. Moler (8 Ohio, 5-52) 660 
 
 V. Neal (6 Allen, 575) 562 
 
 f. Port Bruce (19 U.C.Q.B. 626) 141 
 Webber v. Gray (24 Wend. 440) 264 
 
 V. Railroad Co. (2 Met. 149) 686 
 
 Weber v. Lee County (6 Wall. 210) 842, 
 
 V. Harbor Commrs. (18 Wall. 57) 133, 
 134, 136, 137 
 V. Reinhard (73 Pa. St. 370) 746, 791 
 V. San Francisco (1 Cal. 455) 921, 945 
 V. Zimmerman (23 Md. 45) 868, 870 
 Webster v. Chicago (62 111. 302) 754 
 
 V. Harwinton (32 Conn. 131) 16, 909, 
 
 910 
 
CXVl 
 
 TABLE 01 CASES CITED. 
 
 Webster Co. v. Taylor (19 Ohio, 117) 486 
 Weckler v. Chicago (61 111. 142) 598, 610 
 Weed V. Balston (76 N. Y. 329) 1024, 1038, 
 
 1040 
 t). Greenwich (45 Conn. 170) 962, 974 
 Weeks v. Foreman ( 1 Harris ( N. J. ), 
 
 237) 405, 421, 430 
 
 V. Milwaukee (10 Wis. 186) 740, 742, 
 
 750, 763, 774, 777, 778, 781, 782, 
 
 1002, 1070 
 
 B. Shirley (33 Me. 271) 1042 
 
 Weeman v. Smith (60 Mo. 292) 796 
 
 Weet V. Brockport (16 N. Y. 161) 89, 969, 
 
 992, 1026, 1037, 1046 
 
 Wegman ». Jefferson (61 Mo. 55) 1000 
 
 Wehn V. Gage Co. (5 Neb. 494) 31, 963 
 
 Welder v. East St. Louis (55 III. 133) 754 
 
 Weightman v. Washington ( 1 Black, 
 
 39) 89, 960, 962, 982, 1036, 1037, 
 
 1044, 1048, 1052 
 
 Weil V. Ricord (24 N. J. Eq. 169) 372, 373 
 
 Weir V. Bush (4 Litt. 433) 246 
 
 V. Railroad Co. (18 Minn. 155) 614 
 
 Weisbrod v. Railroad Co. (18 Wis. 
 
 35) 630, 031, 637 
 
 Weisenberg v. Appleton (26 Wis. 56) 
 
 1026, 1040, 1042, 1049, 1052 
 V. Appleton (7 Am. Rep. 39) 1042, 
 
 1052 
 Weismer v. Douglas (64 N. Y. 91) 102, 187, 
 190, 596, 728, 729, 823, 934 
 Weisner v. Toledo (31 Ohio St. 387) 748 
 Weitzel v. Concordia (14 Kan. 446) 407 
 Welch V. Boston (126 Mass. 442) 168 
 
 V. Hotchkiss (39 Conn. 140) 367, 369, 
 
 402 
 
 ». Marion (48 Ala. 291) 943 
 
 V. People (2 Doug. 332) 429 
 
 V. Railroad Co. (27 Wis. 108) 620 
 
 ». Ste. Genevieve (1 Dillon, 130) 194, 
 
 195, 196, 199, 200, 290, 292, 293, 
 
 851, 874 
 
 V. Stowell (2 Doug. 832) 379, 382,383 
 
 V. Supervisors (23 Iowa, 199) 826 
 
 Weld V. Proprietors (6 Greenl. 93) 959 
 
 Welker ». Potter (18 Ohio St. 85) 58, 65, 
 
 598, 599, 767, 800 
 
 Welland v. Railway Co. (30 U. C. Q. 
 
 B. 147) 607 
 
 V. Railway Co. (31 U. C. Q. B. 
 639) 607 
 
 Wellcome v. Leeds (51 Me. 313) 702 
 
 Wellington v. Waterloo (8 U. C. C. 
 
 P. .358) 214 
 
 V. Wilmot (17 U. C. Q. B. 82) 214 
 
 V. Wilson (14 U. C. C. P. 299) 662, 
 
 1010, 1033 
 
 V. Wilson (16 V. C. C. P. 124) 662, 
 
 1010 
 Wells V. Atlanta (43 Ga. 67) 121. 436 
 V. Battelle (11 Mass. 477) 807, 308 
 V. Burbank (17 N. H. 393) 61 
 
 i>. Burnhani (20 Wis. 112) 464, 797 
 V. McLaughlin (17 Ohio, 99) 677 
 V. Weston (22 Mo. 384) 729 
 
 Wells Co. Road, in re (7 Ohio St. 
 
 16) 613 
 
 Welsford v. Weidleln (23 Kan. 601) 366. 
 
 797 
 
 Wendell v. Brooklyn (29 Barb. 204) 267 
 
 V. Troy (39 Barb. 329) 1046, 1047, 
 
 1056 
 V. Troy (4 Abb. Ct. App. 563) 1056 
 Wentworth v. Hamilton (34 U. C. Q. 
 
 B. 585) 458 
 
 Wertheimer v. Mayor (29 Mo. 254) 433 
 
 West V. Bancroft (32 Vt. 367) 687, 688 
 
 V. Blake (4 Blackf. 234) 109, 596 
 
 . V. Greenville (39 Ala. 69) 363 
 
 V. Mayor, (10 Paige, 539) 898 
 
 West, etc. V. Nolan (48 N. Y. 513) 926 
 
 Westberry v. Kansas City (64 Mo. 
 
 493) 272 
 
 Westchester v. Apple (35 Pa. St. 284) 1054, 
 
 1063 
 West Covington v. Freking (8 Bush, 
 
 121) 638, 663 
 
 Westfall ». Hunter (8 Ind. 174) 634, 635, 
 
 644 
 Westfield v. Mayo (122 Mass. 100) 1062 
 V. Mayo (22 Am. Rep. 292) 1062 
 
 West Gwillimbury v. Hamilton Rail- 
 road Co. (23 Grant (Can.), 
 383) 909 
 
 West River Bridge Co. v. Dix (6 How. 
 
 183) 596 
 
 V. Dix (6 How. 507) 580, 582 
 
 V. Dix (6 How. 545) 588, 592, 597 
 
 Westerhaven v. Clive (5 Ohio, 136) 314 
 
 Western College v. Cleveland (12 
 
 Ohio St. 375) 89, 950, 954, 956 
 Western Savings Fund Society v. 
 
 Philadelphia (31 Pa. St. 175) 89, 
 92, 93, 97, 445. 470, 533, 968, 992 
 Weston V. Arnold (L. R. 8 Ch. App. 
 
 1084) 178 
 
 «. Charleston (2 Pet. 449) 729, 730, 
 
 733 
 V. Syracuse (17 N. Y. 110) 158 
 
 Wetmore v. Brooklyn Gas Co. (42 
 
 N. Y. 384) 136 
 
 V. Story (22 Barb. 414) 302 
 
 V. Tracy (14 Wend. 250) 992 
 
 Weyauwega v. Ayling (99 U. S. 112) 510 
 
 Weymouth v. Commrs. (108 Mass. 
 
 142) 84 
 
 Whalen v. La Crosse (16 Wis. 271) 475, 767 
 
 V. McComb (76 111. 49) 194, 407 
 
 Wharf Case m re (3 Bland. Ch. 883) 133, 
 
 137 
 Wharton v. Birmingham (37 Pa. St. 
 
 371) 946 
 
 Wheeler v. Chicago (24 111. 106) 466 
 
 V. Chicago (57 111. 415) 767 
 
 V. Cincinnati (19 Ohio St. 19) 171, 954, 
 
 956, 982, 988 
 
 V. Cincinnati (2 Am. Rep. 368) 982. 
 
 988 
 V. Railroad Co. (12 Barb. (N. Y.) 
 227) 787 
 
TABLE OF OASKS CITED. 
 
 CXVll 
 
 Wheeler v. Westport (30 Wis. 392) 1034, 
 
 1038, 1040 
 
 u. Worcester (10 Allen, 591) 994, 
 
 1066, 1075 
 
 Wheeling v. Campbell (12 W. Va. 36) 672, 
 
 673 
 Whicker ». Hume (14 Beav. 509) 555 
 Wliidden v. Drake (5 N. H. 13) 131 
 
 Whitaker ». West Boylston (97 Mass. 
 
 273) 1040, 1051 
 
 Whitakie v. Railroad Co. (51 N. Y. 
 
 666) 713 
 
 Whitby V. Flint (9 U. C. C. P. 449) 244 
 
 V. Harrison (18 U. C. Q. B. 603) 206, 
 
 244 
 White V. Bond Co. (58 111. 297) 961, 1009, 
 
 1038 
 V. Charleston (2 Hill, 571) 956, 963 
 V. County (58 111. 297) 961, 1038 
 
 II. Cower (4 Paige, 510) 638 
 
 V. Flannigan (1 Md. 525) 638, 659 
 ». Fuller (39 Vt. 193) 97,106 
 
 V. Godfrey {97 Mass. 472) 632, 662, 
 66.3, 686 
 «. Hindley, etc. (L. R. 10 Q. B. 
 
 219) 994 
 
 V. Kent (11 Ohio St. 550) 168, 238, 
 
 385, 679 
 
 r. Lincoln (5 Neb. 505) 71, 937 
 
 V. Mayor, etc. (4 £. D. Smith, 
 
 563) 258 
 
 V. New Orleans (15 La. An. 667) 443, 
 
 464 
 V. People (94 III. 604) 742, 753 
 
 V. Phillipston (10 Met. 108) 260, 978 
 V. Polk County (17 Iowa, 413) 257 
 V. Quincy (97 Mass. 430) 1064 
 
 V. Railroad Co. (21 How. 675) 479 
 V. Stamford (37 Conn. 5^7) 70 
 
 V. Tallman (2 Dutch. 67) 177, 234, 
 349, 352, 353 
 V. Vermont, etc. (21 How. 575) 499 
 V. Washington (2Cranch, Cir. C. 
 
 337) • 410 
 
 V. Yazoo City (27 Miss. 357) 949, 952, 
 
 1001 
 Whitehead v. Lowell (124 Mass. 281) 1053 
 Whitehouse v. Fellowes (10 C. B. (N. 
 
 S.) 765) 994, 995, 998 
 
 Whitely v. Lansing (27 Mich. 131) 808 
 
 Whiteside v. People (26 Wend. 634) 299 
 
 Whiting V. Boston (106 Mass. 89) 602, 
 
 604, 896. 922, 923 
 
 V. Fond du Lac (25 Wis. 167) 491 
 
 V. New Haven (45 Conn. 303) 802 
 
 V. Sheboygan Railroad Co. (25 
 
 Wis. 167) 180, 183 
 
 Whitfield V. Longest (6 Ired. 268) 351, 
 
 352, 354, 355, 735 
 
 Whithorn v. Thomas (7 M. & G. 1) 316 
 
 Whitlock V. West (26 Conn. 406) 413 
 
 Whitney v. Clifeord (46 Wis. 138) 1056 
 
 Whitson V. Franklin (34 Ind. 392) 409, 
 
 706 
 Whittier v. Vamey (10 N. H. 291) 307 
 
 Whyte V. Mayor, etc. ot Nashville (2 
 
 Swan, 364) 124, 881, 334, 3.35, 
 610, 749, 796, 800 
 Wicklifie v. Lexington (11 B. Mon. 
 
 155) 
 Wider v. Kast St. Louis (55 III. 133) 
 
 688 
 736, 
 754 
 620 
 •122 
 735 
 638 
 467 
 
 239 
 923 
 479 
 191 
 789 
 
 784 
 373 
 818 
 728 
 641 
 510 
 
 Wier V. Railroad Co. (18 Minn. 169) 
 Wiggin V. New York (9 Paige, 16) 
 Wiggins V. Chicago (68 III. 372) 
 ». McCleary (49 N. Y. 846) 
 V. Philadelphia (2 Brews. 444) 
 Wilbrund v. Avenue Railroad Co. (3 
 
 Bosw. 314) 712 
 
 Wilcox u. Smith (5 Wend. 238) 261 
 
 V. Deerlodge Co. (2 Montana, £74) 492 
 
 Wild V. Deig (43 Ind. 456) 698 
 
 Wilde V. New Orleans (12 La. An. 15) 975, 
 
 976 
 
 Wilder V. Chicago (26 III. 182) 
 
 Wildy y. Washburn (16 Johns. 49) 
 
 Wiley V. Board (11 Minn. 371) 
 
 V. Brimfield (59 III. 806) 
 
 V. Owens (39 Ind. 429) 
 
 V. Parmer (14 Ala. 627) 734, 735 
 
 V. Silliman (62 111. 170) 225, 482, -540 
 
 Wllhelm V. Cedar Co. (50 Iowa, 254) 461, 
 
 462, 463 
 
 Wilkes V. Dinman (7 How. 89) 265 
 
 V. Mayor, etc. (21 Alb. L. J. 32) 944 
 
 Wilkey w. Pekin (19 III. 160) 
 
 WUkinson v. Albany (28 N. H. 9) 
 
 V. Bank (3 R. I. 22) 
 
 V. Cheatham (43 Ga. 258) 
 
 ». Leland (2 Pet. 627) 
 
 W.Peru, (61 Ind. 1) 
 
 Willardt). Killingworth (8 Conn. 247) 118, 
 
 288, 337 
 
 V. Newbury (22 Vt. 458) 1027, 1064 
 
 V. Newburyport (12 Pick. 227) 36, 41, 
 
 42, 117, 120, 297, 447 
 
 V. Preabury (14 Wall. 676) 742 
 
 Wlllcocks m re (7 Cow. 402) 294, 295, 297 
 
 Willey V. Greenfield (30 Me. 452) 484 
 
 William Street in re (19 Wend. 678) 618, 
 
 748 
 
 Williams in re (4 Ark. 537) 606, 929 
 
 V. Augusta (4 Ga. 509) 329, 8.32, 400, 
 
 406, 421, 424, 430 
 
 o. Boardman (9 Allen, 570) 131 
 
 V. Caramack (27 Miss. 209) 610, 729, 
 
 748 
 V. Carwadine (4 B. & A. 621) 166 
 V. Church (1 Ohio St. 478) 625, 626, 
 
 650 
 V. Clinton (28 Conn. 264) 1018, 1039, 
 
 1051 
 V. Commrs. (35 Me. 345) 855 
 
 V. County Judge (27 Mo. 225) 822 
 ». Detroit (2 Mich, 560) 610, 731, 746, 
 749, 764, 779, 790, 794, 795, 800, 
 801, 915 
 V. Dunkirk (3 Lans. 44) 977 
 
 r. Kenney (98 Mass. 142) 131 
 
 V. Larkin (3 Denio, 114) 287 
 
CXVlll 
 
 TABLE OF CASES CITED. 
 
 Williams v. Lunenburg (21 Pick. 75) 286, 
 
 294 
 V. New Orleans (23 La. An. 507) 957 
 V. New York, etc. Railroad Co. 
 
 (16 N. Y. 97) 663, 697, 699, 716 
 
 V. Pinney (25 Iowa, 436) 907 
 
 V. Plank-road Co. (21 Mo. 580) 697 
 
 V. Railroad Co. (39 Conn. 509) 634 
 
 17. Richards (3 C. & K, 8) 713 
 
 V. Roberts (88 111. 13) 191, 192, 542 
 
 V. School District (21 Pick. 75) 293, 
 
 308, 774. 941 
 
 V. Stein (38 Ind. 89) 222 
 
 ■V. Stein (10 Am. Rep. 97) 222 
 
 V. Smith (2 Hill (N. Y.), 301) 500 
 
 Williamson v. Cass Co. (84 111. 361) 613 
 
 V. Commonwealth (4 B. Mon. 
 
 (Ky.) 146) 405, 410, 421, 425, 429 
 V. Keokuk (44 Iowa, 88) 72, 542, 843 
 V. Railroad Co. (29 N. J. Eq. 311) 788 
 Williamsport v. Commonwealth (84 
 
 Pa. St. 487) 145, 147, 154, 687, 
 804 
 V. Kent (14 Ind. 306) 768 
 
 Willimantic Soc. v. School Soc. (14 
 
 Conn. 457) 214 
 
 Willis t'. Booneville (28 Mo. 543) 431 
 
 V. Legris (45 111. 289) 352 
 
 Willoughby v. Jenkins (20 Wend. 96) 632 
 
 Wilmington v. Roby (8 Ired. Law, 
 
 250) 731, 735 
 
 Wilson V. Atlanta (60 Ga. 473) 1018 
 
 V. Berkstresser (45 Mo. 283) 824 
 
 V. Charlestown (8 Allen, 137) 1020, 
 1022, 1040, 1051 
 V. Commrs. (7 W. &S. 197) 573, 840 
 V. Goodman (4 Hare, 54) 264 
 
 V. Granby (47 Conn. S. C. 22 Alb. 
 
 L. J. 416) 1015 
 
 V. Halifax (L. R. 3 Ex. 114) 1018 
 V. Hardesty (1 Md. Ch. 66) 541 
 
 V. Inloes (11 G. & J. 351) 134, 137, 
 
 139 
 V. Jefferson (13 Iowa, 181) 720, 961, 
 
 963 
 
 V. Marsh Co. (2 Pet. 251) 596 
 
 V. Mayor of New York (1 Denio, 
 
 595) 127, 260, 949, 950, 998, 1068, 
 
 1070, 1071, 1072, 1074, 1075, 1077 
 
 I). New Bedford (108 Mass. 26; 
 
 B. c. 11 Am. Rep. 3-52) 992 
 
 V. Payton's Lessee (4 Wheat. 77) 440 
 
 V. Poole (33 Ind. 443) 806 
 
 f. Salamanca (99 U. S. 499) 510 
 
 V. School District (32 N. H. 118) 31, 
 
 460, 461 
 
 V. Sexon (27 Iowa, 15) 635, 637 
 
 Wilton V. Falmouth (3 Shep. 476) 223 
 
 V. Missouri (91 U. S. 275) 734 
 
 Winbigler v. Los Angeles (45 Cal. 
 
 36) 959, 1015 
 
 Winch V. Conservators (L. R. 7 C. P. 
 
 471) 141 
 
 Winckler v. Great Western Railway 
 
 Co. (}8 U. C. C. P. 250) 1051 
 
 Windham v. Portland (4 Mass. 384) 214, 
 
 216, 217 
 Wingate v. Enniskillen Oil, etc. Co^ 
 
 (14 U. C. C. P. 379) 459 
 
 Winn V. Lowell (1 Allen, 177) 1024, 1027, 
 
 1029, 1040 
 
 V. Macon (21 Ga. 275) 105, 463 
 
 Winona v. Huff (11 Minn. 119) 625, 629, 
 
 638, 642, 656, 661 
 
 0. St. Peter, etc. Co. (94 U. S. 
 
 181) 73 
 
 Winpenny v. Philadelphia (65 Pa. St. 
 
 135) 141 
 
 Winsboro v. Smart (11 Rich. Law, 
 
 ♦ 551) 389 
 
 Winship v. Enfield (42 N. H. 197) 1022, 
 1023, 1028, 1034, 1035 
 Winslow V. Commissioners (64 N. C, 
 
 218) 672, 573, 934 
 
 Winston v. Mosebey (35 Mo. 146) 823, 833 
 
 V. Westfeldt (22 Ala. 760) 500 
 
 Winthrop v. Farrar (11 Allen, 398) 401 
 
 Wisby V. Boute (19 Ohio St. 238) 625, 626, 
 
 629, 640 
 
 Wisconsin v. Duluth (2 Dill. 406) 43 
 
 V. Lyons (30 Wis. 61) 136 
 
 Wiston V. Philadelphia (80 Pa. 505) 746, 
 
 759 
 
 V. Philadelphia (80 Pa. 112) 781 
 
 Wiswall V. Hall (3 Paige, 313) 137 
 
 Withelra v. Cedar Co. (-50 Iowa, 524) 473 
 
 Witherley v. Regent's Canal Co. (12 
 
 C. B. N. S. 2) 1023 
 
 Withers v. Buckley (20 How. 84) 680 
 Withornu. Thomas (7 M. &G. 1) 223 
 Woelpper V. Philadelphia (38 Pa. St. 
 
 203) 391 
 
 Wolf V. Keokuk (48 Iowa, 129) 743 
 
 Wolfe V. Railroad Co. (15 B. Mon. 
 
 (Ky.) 404) 699, 700, 711 
 
 Wood V. Bartllng (16 Kan. 109) 224 
 
 V. Brooklyn (14 Barb. 425) 340 
 
 V. Draper (24 Barb. 187) 911 
 
 V, Jefferson Co. Bank (9 Cow. 
 
 194) 62, 110, 317 
 
 V. Louisiana (5 Dillon, C. C. R. 
 
 122) 539, 939 
 
 V. Lynn (1 Allen, 108) 461 
 
 V. Mears (12 Ind. 615) 722, 725, 1059 
 V. Peake (8 Johns. 54) 923 
 
 V. School District (44 Iowa, 27) 1057 
 V. Searl (Bridg. 139) 403, 411 
 
 V. Veal (5 B. & A. 454) 631 
 
 V. Ward (3 Exoh. (W. H. & G.) 
 
 748) 1065 
 
 V. Waterville (5 Mass. 294) 456 
 
 Woodbridge v. Detroit (8 Mich. 274) 749, 
 
 750, 790 
 Woodbury v. Hamilton (6 Pick. 101) 41 
 Woodfolk V. Railroad Co. (2 Swan, 
 
 422) 621 
 
 Woodruff V. Neal (28 Conn. 168) 632, 649, 
 
 652, 662 
 I). Parham (8 Wall. 139) 784 
 
 V. Trapnall (10 How. 206) 93 
 
TABLE OF CASES CITED. 
 
 CXIX 
 
 Woods V. Colfax Co. (23 Alb. L. J. 
 
 14) {162 
 
 V. Henry (55 Mo. 560) 68, 213 
 
 ». Lawrence County (1 Black. 
 
 380) 191, 509, 522, 525, 526, 549 
 
 Woodson V. Skinner (22 Mo. 13) 676, 649, 
 
 652 
 Woodstock V. Gallup (28 Vt. 587) 692, 
 
 604 
 Woodward o. Calhoun Co. (2 Cent. 
 
 L. J. 396) 636, 637, 538 
 
 V. Sarsons ( L. R. 10 C. P. 743) 226 
 
 Woodyer v. Hadden (5 Taunt. 125) 627, 
 
 637 
 Woolf V. Beard (8 C. & P. 373) 102.3 
 
 Woolricli ». Forrest (1 Pa. St. 115) 206 
 Worcester i>. Canal Co. (16 Pick. 
 
 (Mass.) 541) 1048 
 
 V. Walker (9 Gray, 78) 237 
 
 V. Worcester (116 Mass. 193) 732, 
 
 771, 776 
 
 Work V. State (2 Ohio St. 296) 430 
 
 Workingham v. Johnson (Cas. Temp. 
 
 Hardw. 286) 338 
 
 Worrell v. Munn (5 N. Y. 229) 448 
 
 Worsley v. Municipality (9 Rob. (La.) 
 
 324) 133, 945 
 
 Worth V. Fayetteville (1 Winst. Part 
 
 2d, 70) 788, 918 
 
 Worthington u. Jeffries (L. R. 10 C. 
 
 P. 379) 856 
 
 Wortley i;. Nottingham (21 L. T. N. 
 
 S. 582) 386 
 
 Wragg V. Penn Township (94 111. 11) 634 
 
 Wrayi;. Ellis (1 E. &E. 276) 405 
 
 V. Pittsburgh (46 Pa. St. 365) 744 
 
 ». Toke (12Q. B. 492) 344 
 
 Wrexford w. People (14 Mich. 41) 372, 375 
 
 Wright V. Bishop (88 111. 302) 192, 911 
 
 V. Boston (9 Cush. 233) 803, 804, 941 
 
 V. Chicago (20 111. 252) 764 
 
 V. Church (1 Hoff. Ch. 225) 561 
 
 V. Defrees (8 Ind. 298) 326 
 
 V. Fawcett (4 Burr. 2044) 867 
 
 V. Holbrook ( 13 Am. Rep. 12) 264, 991, 
 
 1056 
 „. Holbrook (52 N. H. 120) 264, 991, 
 
 1056 
 
 V. Hughes (13 Md. 113) 443 
 
 V. Linn (9 Pa. St. 433) 569, 567 
 
 V. Stockman (59 Ind. 65) 31 
 
 V. Victoria (4 Tex. 375) 570, 634 
 
 Wyandotte v. Wood (5 Kan. 603) 65, 66, 67 
 
 t>. Zeitz (21 Kan. 649) 155, 436, 441 
 
 Wyatt V. Green Bay (1 Biss. 292) 510 
 
 u. Harrison (3 B. & A. 871) 1003 
 
 V. Rondout (44 Barb. 385) 1026 
 
 Wyley v. Wilson (44 Vt. 404) 286 
 
 Wyman v. New York (11 Wend. 487) 638 
 
 Wyncoop v. Society (10 Iowa, 185) 166 
 
 Wynehamer v. People (13 N. Y. 429) 70 
 Wynne v. Wright (1 Dev. & B. Law 
 
 19) 356, 735 
 
 Xiquer v. Bujae (5 La. An. 499) 639, 643, 
 
 645, 664 
 
 Yale V. Hampden, etc. Turnpike Co. 
 
 (18 Pick. 357) 1062 
 
 Yarmouth, Borough of v. North Yar- 
 mouth (34 Me. 411) 76,106 
 Yarnold v. Lawrence (15 Kan. 126) 464, 
 
 466 
 
 Yates V. Judd (18 Wis. 118) 633, 639 
 
 I). Milwaukee (10 Wall. 497) 136, 139, 
 
 378, 633 
 
 V. Milwaukee (12 Wis. 762) 386, 392, 
 
 393 
 Yeager in re (11 Gratt. (Va.) 665) 819 
 Yeakel v. Lafayette (48 Ind. 116) 683 
 Yeatman v. Crandell (11 La. An. 220) 753, 
 
 777 
 York Buildings Co. v. Mackenzie (8 
 
 B. P. C. 42) 437 
 
 York V. Forscht (23 Pa. St. 391) 165 
 
 Yost's Report (17 Pa. St. 524) 687 
 
 Young V. Bank (4 Cranch, 384) 109 
 
 V. Boston (104 Mass. 95) 915 
 
 V. Buckingham (5 Ohio, 486) 282, 297 
 
 V. Camden County (19 Mo. 309) 482 
 
 V. Commissioners (2 N. & McC. 
 
 537) 263, 958, 960, 963 
 
 V. Hall (9 Nev. 212) 86, 94, 729 
 
 V. Harrison (17 Ga. ,30) 617 
 
 u. Harvey (16 Ind. 314) 1062 
 
 V. Leedom (67 Pa. St. 351) 1068 
 
 V. New Haven (.39 Conn. 435) 1027 
 V. New Haven (12 Am. Rep. 
 
 400) 1027 
 
 V. St. Louis (47 Mo. 492) 330 
 
 V. Yarmouth (9 Gray, 386) 694, 927, 
 
 1064 
 Yonngblood v. Sexton (32 Mich. 406) 357. 
 363, 789, 790, 919 
 Youngstown v. Moore (30 Ohio St. 
 
 133) 1002 
 
 Zabriskie v. Railroad Co, (23 How. 
 
 (U. S.) 381) 62, 180 
 
 u. Railroad Co. (2 Beasley Ch. 
 314) 38.3, 701, 705 
 
 Zanesville v. Richards (5 Ohio St. 
 
 889) 738, 739, 782 
 
 Zoeller v. Kellogg (4 Mo. App. 163) 620 
 Zottman v. San Francisco (20 Cal. 
 
 96) 444, 461, 466, 767 
 
 Zylstra v. Charleston (1 Bay, 382) 345, 
 
 346, 348, 368, 372, 422, 430, 431, 
 
 928 
 
A TREATISE 
 
 ON THE 
 
 UW OF MUNICIPAL CORPORATIONS. 
 
 CHAPTER I. 
 
 MUNICIPAL rNSTITTTTIONS. — INTEODUCTOEY HISTORICAL yiBW. 
 — MUNICIPAL ABUSES. — EBMBDIBS SUGGESTED. 
 
 § 1. It does not fall within the scope of the present treatise to 
 give a detailed account of the origin and rise of cities and towns, 
 nor to trace juinutely the history of the rights, powers, and juris- 
 diction with which they are now generally invested. Such in- 
 quiries more appropriately belong to the legal antiquary or to the 
 historian ; and yet a brief historical survey of the rise and pro- 
 gress of municipalities will conduce to an intelligent understand- 
 ing, even in its practical bearings, of the subject of which it is 
 proposed to treat. The origin of towns and cities^ and probably 
 the exercise by them, to a greater or less extent, of local jurisdic- 
 tion, may be ascribed to a very remote period. 
 
 Phoenicia and Egypt were long noted for their large and splen- 
 did cities. In the latter country, we find Memphis, one of the 
 old world's proudest capitals, whose site even was, until very 
 recently, a matter of learned conjecture. It was, centuries ago, 
 buried beneath the sands of the encroaching desert, and in our 
 own day it has been exhilmed in the presence of Bedouins too 
 wild to be interested in the wondrous revelations of its entombed 
 mysteries. Temples and buildings, vast and magnificent, dat- 
 ing, probably, fifteen centuries before the Christian era, and pre- 
 served by burial from decay and spoliation, may to-day be seen 
 almost in their original perfection. There, too, in " old, hushed 
 Egypt and its sands," on the banks of the Nile, are the massive 
 
 VOL. I. 1 
 
2 MUNICIPAL CORPORATIONS. [CH. I. 
 
 ruins of Thebes (Diospolis), the city of "the hundred gates," 
 antedating secular history, and claimed by the Egyptians to have 
 been the first capital, as it undoubtedly was one of the oldest 
 cities, of the historic world. As the eye runs along the colonnades 
 of ruined temples, the mind runs back through the Egypt of the 
 Ptolemies to the Egypt of the Pharaohs, four thousand years ago, 
 when Thebes was in its glory and its pride. But in the midst of 
 these stupendous remains of , this early civilization, we find but 
 little evidence of their municipal history and organization. The 
 chief lesson they teach is that they were the centres of great 
 wealth and power in the governing classes, and that the people, 
 who constitute the true wealth of modern cities, were at the ab- 
 solute disposal of their masters, bound down and degraded by 
 servitude or oppression. 
 
 § 2. Notwithstanding the people of Greece were of a common 
 blood, language, and religion, Greece was never politically united. 
 Political power resided not in a number of independent states, 
 but in a large number of free and independent cities, with districts 
 of country adjoining or attached to them. Each city, except i» 
 Attica, was sovereign — was the sole source of supreme authority 
 — and possessed the exclusive management of its own affairs. 
 The citizen of one was a foreigner in the others, and could not, 
 without permission or grant, acquire property, make contracts, or 
 marry out of his own city. The Grecian heart always glowed 
 with patriotic fervor for the city, but rarely, except in times of 
 great common danger, kindled with a love for the whole country. 
 Although, according to Chancellor Kent,^ the " civil and political 
 institutions of some of the states of Greece bear some analogy to 
 the counties, cities, and towns in our American States," the anal- 
 ogy, it must be confessed, is remote and uncertain, and without 
 practical value in the inquiries we are to prosecute. 
 
 § 3. Municipal Corporations, as well as Private Corporations, 
 were familiar to the Roman Law. " To conceive," says a modern 
 writer, " of ancient Rome as the capital of Italy in the same sense 
 that London is the capital of England, or Paris of France, would 
 be a great mistake. London and Paris are the chief cities of 
 their respective countries, because they are the seat of govern- 
 
 1 Kent's Com. 268, note. 
 
§ 3.] INTRODUCTORY HISTORICAL VIEW. 3 
 
 ment. The people of these cities and their surrounding districts 
 have no privileges superior to those of other English or French 
 citizens. But the city of ancient Rome, with her surrounding 
 territory, was a great corporate body or community, holding sov- 
 ereignty over the whole of Italy and the provinces. None but 
 persons enrolled on the lists of the tribes had a vote in the popu- 
 lar assemblies or any share in the government or legislation of the 
 city." ^ The common division of civic communities established by 
 the Roman government was three, — prefectures, municipal towns, 
 and colonies.;. The prefectures did not enjoy the right of self- 
 government, but were under the rule of prefects, and the in- 
 habitants were subjected to the burdens without enjoying the 
 privileges of Roman citizens. But with the municipal towns 
 it was different. They at length received the full Roman fran- 
 chise, " and hence," says the intelligent write* just named, 
 " arose the common conception of a municipal town ; that is, a 
 community of which the citizens are members of the whole nation, 
 all possessing the same rights, and subject to the same burdens, 
 but retaining the administration of law and government in all 
 local matters which concern not the nation at large," — a descrip- 
 tion which answers almost perfectly to municipal organizations in 
 England and America. The colonies, composed of Roman citizens, 
 were established by the parent city, sometimes to reward public 
 services, but'generally as a means of securing and holding the coun- 
 try which had been subdued by Roman arms. The constitution 
 of these colonies, and the rights of the citizens and communities 
 composing thtfm, varied ; but it is not necessary for our purpose to 
 trace these differences. The colonies were obliged to provide for 
 the erection of a city, and cities thus erected were called munici- 
 pia. We thus perceive the justness of the observations of a dis- 
 tinguished modern historian and statesman, who says that " the 
 history of the conquest of the world by Rome is the history of 
 the conquest and foundation of a vast number of cities. In the 
 Roman world in Europe there was an almost exclusive preponder- 
 ance of cities and an absence of country populations and dwell- 
 ings." 2 The nation was a vast congeries of municipalities bound 
 
 1 Dr. Liddell, Borne; cb. zxvii. sec. 8. but cities — no country places, no villages. 
 
 * M. Gnizot'B History Civilization in The country was cultivated, but not peo- 
 
 Europe, Lect. II. "Rome, in its origin, pled. The proprietors dwelt in cities, 
 
 was a mere municipality, a corporation. If we follow the history of Rome, we find 
 
 In Italy, around Rome, we find nothing that slie founded or conquered a host of 
 
4 MUNICIPAL CORPOKATIONS. [CH: I. 
 
 together by the central power of Rome. When the Romans colo- 
 nized and settled the countries they had conquered they established 
 .fixed governments, and carried with them, and to a greater or less 
 extent necessarily imparted to their new subjects their arts, sci- 
 ences, language, and civilization. Although the political condi- 
 tion of the vanquished people was far from being desirable, still 
 the immediate residence among them of the civilized Roman did 
 not fail to produce effects more or less beneficial ; and thus the 
 municipia, securing what the Romain arms had achieved, became 
 the efficient means of spreading civilization throughout the Roman 
 world. 
 
 § 4. After the subversion of the Roman Empire the towns of 
 Europe from the fifth to the tenth century were in a state neither 
 of servitude nor liberty, though their condition differed greatly 
 in different countries. During this period the power and influ- 
 ence of the towns were, in general, on the decline. The power 
 of the church was great, and the inhabitants found their chief 
 protection in the clergy. 
 
 The establishment of the feudal system worked a great change 
 in the condition of the towns. Before that, towns, as we have 
 seen, were the centres of wealth and population. The ruling 
 class lived within them. The land was cultivated by persons 
 who were not recognized as having political rights. After feu- 
 dalism was established this changed. The proprietor then lived 
 upon his estates, instead of living within a town; the town be- 
 came part of the lands of the lord, or enclosed within his fief. 
 It, with its population, thus became subject to his arbitrary ex- 
 actions, oppression, and pillage. Still the towns gradually pros- 
 pered, and with prosperity came wealth ; with wealth came 
 
 citiea. It was with cities that she fought, country during the Middle Ages. The 
 
 it was with cities she treated, into cities only bequests of Borne consist of vast 
 
 she sent colonies. In the Gauls and monuments impressed with a municipal 
 
 Spain we meet with nothing but cities ; character, destined for a numerous popu- 
 
 the country around is marsh and forest, lation, crowded into a single spot. A 
 
 In the monuments left us of ancient municipal corporation like Rome might 
 
 Bome we find great roads extending fi'om be able to conquer the world, but it was 
 
 city to city; but the thousands of little a much more difficult task to mould it 
 
 by-paths now intersecting every part of into one compact body." lb. See also 2 
 
 the country were unknown. Neither do Kent'sCom. 270, note; Dr. Adam Smith's 
 
 we find traces of the immense number interesting chapter, Wealth of Nations, 
 
 of churches, castles, country seats, and Book III. ch. ii. 
 villages which were spread all over the 
 
§ 5.] INTRODUCTORY HISTORICAL VIEW. 5 
 
 power. Such, in general, was the condition of the towns of con- 
 tinental Europe down to the eleventh century. About this time, 
 without any union or concert, many of them in most of the coun- 
 tries of Europe rose against the lords, and demanded for the bur- 
 gesses, commonalty, or inhabitants a greater or less measure of 
 enfranchisement. Sometimes a town failed in its struggle, and 
 its oppression was redoubled by the victorious lord. Sometimes 
 the towns were aided by the king, who was frequently not un- 
 willing to humble the arrogant and haughty nobility, and thereby 
 acquire the influence and affection of those whom he assisted. 
 Not unfrequently, however, the struggle had to be maintained 
 by their own unaided resources, and when successful, the result 
 was the granting of Chartees, conferring more or less extensive 
 municipal immunities and rights, by the lords to the burghers. 
 These charters, as Guizot justly observes, were in the nature of 
 " treaties of peace between the commons and their lords " ; were, 
 in fact, " bills of rights " for the people.^ During the twelfth 
 century " all Europe, and especially France, which for a century 
 had been covered with insurrections by burghers against their 
 lords, was covered by charters more or less favorable ; the cor- 
 porators enjoyed them with more or less security, but still they 
 enjoyed them." ^ 
 
 § 5. After the overthrow of the Roman Empire and the civiliza- 
 tion which accompanied the Roman power, Europe became largely 
 indebted to cities and to the authority which they acquired and 
 the jurisdiction which they exercised for the creation of the third 
 estate — popular power — and for the development of the prin- 
 ciples of constitutional or free government,^ 
 
 The Italian cities, especially Venice, Genoa, and Pisa, grew 
 
 1 People V. Morris, 13 Wend. (N. T.) cipal jurisdiction, contributed more, per- 
 
 325, 334, per Nelion, J. haps, than any other cause, to introduce 
 
 ^ Guizot's History Cirilization in Eu- regular government, police, and arts, and 
 rope, Lect. VII. This philosophic and to diffuse them over Europe." Robert- 
 valuable work is the source from whence son's Charles V. ; see Hallam's Middle 
 are drawn most of the statements of the Ages, ch. ii. Part II. M. Guizot considers 
 text as to the condition of the towns of the three great elements of modern civili- 
 Europe from the fifth to the tenth century, zation to be the Feudal System, the 
 See similar account. Wealth of Nations, Christian Church, the Commons, or free 
 Book III. cb. iii. ; Hallam's Middle Ages, corporate cities ; Civilization in Europe, 
 eh. ii. Part II., and notes to later editions. Lect. VII.; see also Wealth of Nations, 
 
 ' "The institution of cities into com- Book III. ch. iii., on "The Rise and Pro- 
 
 munities, corporations, or bodies politic, gross of Cities and Towns, after the Fall 
 
 and granting them the privilege of muni- of the Roman Empire." 
 
6 MUNICIPAL COEPOEATIONS. [CH. I. 
 
 rich from the commerce resulting from the vast armies that the 
 Crusaders for two hundred years had successively pushed for- 
 ward into the Holy Land. The oppressive feudal system was at 
 this time in full force throughout Europe. These Italian cities 
 used their power and wealth to secure their independence. Cities 
 and towns, as well as people who dwelt in the country, were 
 alike subject to the arbitrary and oppressive domination of their 
 . feudal masters. Some of the cities, in the eleventh century, ob- 
 tained their freedom by purchase, i«ome by force, and some by 
 gift. They, in effect, constituted so many little republics, with 
 the right to manage their own concerns. In this way, before 
 the end of the thirteenth century, nearly every considerable city 
 of Italy was enfranchised or had received extensive corporate 
 immunities from the sovereign or lord. The happy effects were 
 soon perceived in the increased population and improved con- 
 dition. Liberty and prosperity ever go hand in hand. 
 
 § 6. Whether from example, as asserted by Dr. Robertson, or 
 from other causes, the same course was adopted by the cities of 
 other states in Europe. The King of France, Louis le Gros, and 
 his great barons granted many charters of community, by which 
 the inhabitants were freed from feudal servitude and erected into 
 municipal corporations, with the power of local government. 
 These charters contained grants of new privileges, and prescribed 
 salutary methods for the enforcement of rights and the redress of 
 grievances. They are interesting and instructive, and a brief 
 view of their character is given in the note.^ 
 
 ^ Abstract of munidpal charier in the Mid- faction for crimes was abolished, and 
 die Ages. — In those turbulent times per- provision made for the regular punish- 
 smaL safety was an object of the first ment of offenders. 5. A person reason- 
 importance, and this was usually afforded ably suspected to be about to ii^ure 
 to the vassal by the baron or lord. The another might, as with us at the present 
 communities or free towns which were day, be compelled to give security to 
 instituted undertook to provide for the keep the peace. These communities also 
 safety of their members, independent of undertook to provide for the security of 
 the nobles. For, 1. All the members property by the following: 1. Abolishing 
 were bound by oath to assist and defend the right of the creditor to seize the 
 each other against all aggressors. 2. All effects of his debtor with his own hand 
 residents in a town made free, were and by his private authority, and com- 
 obliged to take part in the mutual de- pelling him to proceed before a magis- 
 fence of its members. 3. The communi- trate, who was authorized to issue the 
 ties could execute the judgments of their necessary process for the seizure and sale 
 magistrates by coercion, if necessary, of property, humane and necessary ex- 
 4. The practice of making private satis- emptions being allowed. 2. Every mem- 
 
§ 6.] INTRODUOTOKY HISTORICAL VIEW. 7 
 
 We meet, in France, with great diversity in the origin and 
 government of towns and cities. In some of them, especially in 
 southern France, the Roman municipal system, more or less 
 modified from time to time, was perpetuated. The Roman 
 system was formed upon an aristocratic model. In each munioi- 
 pium there was a senate, called an ordo or curia. This was, 
 politically considered, the city ; it was the governing body. The 
 mass of the population, except in a few cases, had no voice in 
 municipal affairs. This senate was composed of a comparatively 
 small number of families, and the office was hereditary. When 
 the body became reduced in numbers by death or otherwise, it 
 was not filled by the people, but by the survivors. 
 
 Other towns or communities originated, in the most natural 
 manner, upon the fiefs or estates of the feudal proprietors. 
 Many of these estates became centres or agglomerations of popu- 
 lation, composed of the working and industrial classes. Trade 
 sprang up, and towns and cities originated. The lord, or pro- 
 prietor, was interested in and derived profit from their prosperity. 
 To induce others to settle there, he frequently conceded certain 
 privileges. He did not emancipate them from all feudal restraints 
 and burdens, but these he mitigated. Often he granted lands 
 and privileges to all who settled in towns on his domains, on 
 receiving a moderate fixed rent and specified military services. 
 These concessions had no higher origin than the personal interest 
 of the proprietor, and were often violated. They did not con- 
 stitute the towns locally independent, or make them true corpora- 
 tions. But, limited and uncertain as these concessions were, the 
 towns which received them prospered and became more or less 
 important. 
 
 Other places in France were chartered towns and true corpora- 
 
 ber was obliged to bring gome of his never aspired," says this accurate and 
 property into the town, or build a house, elegant historian, " to the same independ- 
 or buy land ; and in some places the ence with those in Italy. They acquired 
 members were bound for each other. 3. in France new privileges and immunities, 
 Judgments by magistrates, duly selected, but the right of sovereignty remained 
 took the place of the arbitrary and capri- entire to the king or baron within whose 
 cious decisions of the baron or feudal territories the respective cities were situ- 
 lord. 4. Arbitrary taxation was prohib- ated, and from whom they received the 
 ited, and regulations for an equal tax charter of their freedom." lb. Charters 
 were sometimes especiallr^ prescribed, defined, post, §§ 32, 82. Municipal char- 
 Digested from Robertson^ Charles V., ters, treated of, post, ch. v. vi. Outline 
 Vol. I. note xvi. Proofs and Illustra- of modem municipal charter in the 
 tions. " The communities of France United States, post, § 89. 
 
8 MUNICIPAL CORPORATIONS. [CH. I. 
 
 tions. In the twelfth century there was the general movement, 
 before noticed, on the part of the towns of France, for their 
 enfranchisement, or delivery from feudal bondage. The extent of 
 this movement may be judged from the fact that the royal charters 
 of this period are numbered by hundreds, and those granted by 
 the lords, by thousands. These were, in general, wrested from 
 the feudal proprietors by force, or the fear of it, and conferred 
 an almost independent political existence upon the commune, or 
 town. These charters gave the comlaunity the power of having 
 its people judged for offences by magistrates of their own choos- 
 ing ; crimes and punishments were defined ; arbitrary rents and 
 taxes abolished, and fixed rents and regular taxes substituted ; 
 main-morte and other restraints upon the alienation and enjoy- 
 ment of property were removed. The government of towns 
 thus created, unlike those which were mere perpetuations of 
 the Roman system, was formed upon a democratic model. A 
 voice was given to all burghers, or persons of a certain fortune, 
 or who exercised a trade or calling. In a word, with consider- 
 able diversity, this class of towns was independent, and possessed, 
 in local matters, the power of self-government. From and after 
 the fourteenth century, the political power and influence of the 
 towns of France decayed. The causes of this decline have been 
 traced, with a masterly hand, by M. Guizot, but they do not 
 relate to our purpose.^ In the course of change, we may re- 
 mark that the royal power over them became predominant, and 
 instead of being self-governed, they were administered by the 
 intendants, or officers of the king or emperor, or central author- 
 ity at Paris. 
 
 Towns, or communes, in modern France are governed by a 
 mayor and council. By the law of 1855, 'in all communes of 
 3,000 inhabitants and upwards, these officers are appointed by 
 the emperor ; while in small communes the appointment is made 
 by the prefect of the department, himself appointed by the 
 emperor. The prefect may suspend municipal councillors, but 
 the emperor alone can dismiss them.^ 
 
 § 7. It seems to be well established that the towns and cities 
 of Spain acquired charters of freedom at an earlier period than 
 
 1 History Civilization in Prance, Lect. ^ American Encyclopaedia, Commune. 
 XIX.; see also Hallam's Middle Ages, 
 ch. ii. Fart Jl. and notes. 
 
§7.] 
 
 INTRODUCTORY HISTORICAL VIEW. 
 
 those in France, England, or Germany .^ The cities of Italy, as 
 we have seen, owed their freedom, to a large extent, to their 
 commercial importance and wealth ; but those of Spain owed 
 their privileges and jurisdiction to an entirely different cause. 
 For nearly eight hundred years the Gothic inhabitants of Spain 
 had been engaged in an almost uninterrupted struggle against 
 the Moors who occupied the southern part of the peninsula.^ It 
 was obviously the dictate of policy, as the Spaniards gradually 
 narrowed the boundaries of their enemies' territory, to make 
 provision for securing and holding the ground thus gained. 
 With this view, and for the purpose of protecting themselves 
 from the frequent raids of their Arab neighbors, liberal charters 
 were granted to towns, with extensive districts of country sub- 
 ject to their municipal jurisdiction. 
 
 By these grants or charters the citizens selected their own 
 
 1 The most ancient of these regular 
 charters of incorporation now extant was 
 granted by Alfonso V. in 1020, to the 
 city of Leon and its territory. It pre- 
 ceded by a long interval those granted 
 to the burgesses in other parts of Europe, 
 with the exception, perhaps, of Italy. 
 Acts of enfranchisement became frequent 
 in Spain during the eleventh century, 
 several of which are preserved, and ex- 
 hibit with sufficient precision the nature 
 of- the privileges accorded to the inhabi- 
 tants. Robertson (in his History of 
 Charles V., Introductory View), who 
 wrote when tlie constitutional antiquities 
 of Castile had been but slightly investi- 
 gated, would seem to have no authority, 
 therefore, for deriving the establishment 
 of communities from Italy, and still less 
 for tracing their progress through France 
 and Germany to Spain. Prescott's Fer- 
 dinand and Isabella, Introduction, Vol. I. 
 note 24. 
 
 Hallam, who, as well as Prescott, founds 
 his judgment upon the historical works 
 of Marina and Sempere, expresses a simi- 
 lar opinion as to the early period at which 
 the towns of Spain were invested with 
 chartered rights and privileges. Middle 
 Ages, ch, iv. ; lb. ch. ii. Part II and notes. 
 
 2 Mr. Irving's fine reflections, in his 
 Alhambra, upon this protracted and fa- 
 mous contest between the Crescent arid 
 the Cross, are not inappropriate : " The 
 singular fortunes of the Arabian or 
 
 Morisco-Spaniards form one of the most 
 anomalous yet splendid episodes in his- 
 tory. A remote wave of the great Ara- 
 bian inundation, cast upon the shores of 
 Europe, they seem to have all the impe- 
 tus of the first rush of the torrent. But 
 repelled (by unsuccessful battle) within 
 the limits of the Pyrenees, they gave up 
 the Moslem principle of conquest, and 
 sought to establish in Spain a peaceful 
 and permanent dominion. Generation 
 after generation, century after century 
 passed away, and still they maintained 
 possession of the land. With all this, 
 however, the Moslem empire in Spain 
 was but a brilliant exotic that took no 
 permanent root in the soil it embellished. 
 Severed from all their neighbors in the 
 west by impassable barriers of faith and 
 manners, and separated by seas and des- 
 erts from their kindred of the east, the 
 Morisco-Spaniards were an isolated peo- 
 ple. Their whole existence was a pro- 
 longed, though gallant and chivalric, 
 struggle for a foothold in a usurped land. 
 They were the outposts and frontiers of 
 Islamism. The peninsula was the great 
 battle-ground where the Gothic conquer- 
 ors of the north and the Moslem con- 
 querors of the east met and strove for 
 mastery; and the fiery courage of the 
 Arab was at length (after eight hundred 
 years) subdued by the obstinate and per- 
 severing valor of the Goth." 
 
10 MUNICIPAL COaPOKATIONS. [CH. I. 
 
 officers, including judges and a common council, and enjoyed all 
 the essential rights of freemen. In return, the community or 
 city paid a certain (no longer an arbitrary) tax or rent, and owed 
 military service. For more effectual protection, the charters fre- 
 quently prohibited the nobles from acquiring real property or 
 erecting fortresses or palaces within the limits of the community, 
 and subjected them to its jurisdiction when within its territory. 
 Large sections of the adjacent country, as we have said, often 
 embracing towns and villages, were^annexed to the city or com- 
 munity and placed under its laws and jurisdiction. " Thus," 
 says Mr. Prescott,i to whom we are indebted for this sketch of 
 the early municipalities of Spain, " while the inhabitants of the 
 great towns in other parts of Europe were languishing in feudal 
 servitude, the members of the Castilian corporations, living 
 under the protection of their own laws and magistrates in time 
 of peace, and commanded by their own officers in war, were in 
 full enjoyment of all the essential rights and privileges of 
 freemen." 
 
 § 8. Britain was one of the last conquests of the Caesars, and 
 was one of the first of the western provinces upon which they 
 released their hold. The Latin language did not become the 
 language of the people ; nor did the Romans, as in many of the 
 continental provinces, fill the country with memorials of their 
 skill and arts. The impressions made by the mastery of the Ro- 
 man were not destined to be permanent. According to an 
 accurate explorer and philosophic modern histoiiun,^ Britain, 
 when subject to Rome, was divided into thirty-three townships, 
 with a certain share of local self-government ; and quasi muni- 
 cipal institutions, for a long time after the withdrawal of the 
 Roman power, constituted whatever of government the people 
 possessed. At the time of the conquest of England by William 
 of Normandy (A.D. 1066) the towns and boroughs were depend- 
 ent upon the uncertain protection of the king or lord to whom 
 they owed rents or service, and were liable to discretionary, that 
 is, arbitrary, rates or talliages. They were not incorporated, did 
 not constitute bodies politic ; and being composed mainly of trades-^ 
 men and the lower classes, were regarded by their feudal masters 
 
 1 History Ferdinand and Isabella, Vol. ^ Sir James Mackintosh's History of 
 I. Introduction, sec. 1. England, Vol. I. p. 30. 
 
§ 8] INTRODUCTORY HISTORICAL VIEW. 11 
 
 as possessed of no political and of but few civil rights. None of 
 them enjoyed the right of representation in the council of the 
 nation, and, with the exception, perhaps, of London and a few 
 of the greater towns, did not possess the right of internal or 
 self-government. Sometime between 1100 and 1125 Henry" I. 
 granted to London the original charter, in which were conferred 
 many valuable municipal privileges, with the right, among others, 
 to choose certain of their own officers, such as sheriff, justice, 
 and the like.^ But the right of local self-government was not, in 
 general, conferred upon towns and boroughs until the time of 
 John, who reigned from 1199 to 1216.^ Meantime the towns 
 and cities continued to grow in population and wealth, and as 
 these increased, their disposition to submit to arbitrary exactions 
 proportionately diminished, and their independent spirit and 
 desire for freedom from oppressive restraints became more mani- 
 fest ; but still they did not acquire sufficient influence or import- 
 ance to be allowed a representation in the states of the kingdom 
 for more than two centuries after the conquest. It was not until 
 the time of Edward I. that cities and boroughs, then mostly in- 
 corporated, obtained the right of returning members to parliament. 
 The legislative power of the kingdom was at this time vested 
 in the king and the council, afterwards called the parliament. 
 This council was constituted of the spiritual and lay peerage. 
 The commonalty of England had no voice or part in the legisla- 
 ture. This wise and politic prince was greatly distressed for 
 money, and instead of attempting to raise it by the levy of arbi- 
 trary taxes, which were submitted to with murmurs and yielded 
 sparingly, preferred to obtain it by the prior voluntary consent 
 of the cities, towns, and boroughs. He hit upon this device. 
 He caused writs to be issued to about one hundred and twenty 
 cities and boroughs, enjoining them to send to parliament, along 
 with the two knights of the shire, two deputies from each borough 
 within their county, with authority from their respective commu- 
 
 1 This famous charter has no date, is to be found the germ of all our foreign 
 
 Its substance is given in Norton's Com- attachment laws. PuUing's Laws, etc., 
 
 mentaries on the History, Constitution, of London, 188; Hallam's Middle Ages, 
 
 and Chartered Franchises of the City of Vol. III. ch. viii. Part III. Mr. Norton 
 
 London, and its various provisions ex- gives the substance of all the charters of 
 
 plained and commented on, Book IL London from the time of WUliam the 
 
 ch. ii. p. 337. In the latter clause of this Conqueror to the present, 
 
 charter is an allusion to the very ancient = Hallam's Middle Ages, Vol. IIL ch. 
 
 custom of foreign attachment, in which viii. 
 
12 MUNICIPAL COEPOEATIONS. [CH. I. 
 
 nities to consent to what the king and his council should require 
 of them. As the experiment proved successful, and more money 
 was obtained, and with less trouble, than in the former way, the 
 practice was continued. And this according to the best opinions 
 of learned and careful inquirers,^ is the origin of popular repre- 
 sentation, and of the House of Commons itself, the latter consti- 
 tuting, as Macaulay well observes, " the archetjrpe of all the 
 representative assemblies which now meet, either in the old or 
 new world." ^ For this England and the world are in a great 
 measure indebted, as this cursory review shows, to the spirit of 
 independence which animated the towns and cities, and to the 
 pecuniary wants of an enterprising and ambitious monarch. 
 
 The political powers thus acquired by towns gave them politi- 
 cal importance. This power was courted and controlled bj' the 
 crown. The king's judges decided that no corporation was valid 
 without the sanction of the king, and most of the corporations 
 from time to time applied to the crown for a grant or confirma- 
 tion of privileges. Their dependence upon the crown was thus 
 established, and the crown, as a check upon the nobles, encour- 
 aged popular elections by the whole corporate aBsemhly? In the 
 course of time it was found that these representatives were more 
 formidable to the power of the crown than the nobility had been. 
 In Elizabeth's reign compliant judges decided that, although the 
 right of election was, by the original constitution or charter, in 
 
 1 Hallam's Middle Ages, Vol. III. ch. the recent history of Great Britain, in 
 viii. ; Hume, England, Vol. I. App. II. ; several memorable instances, shows that 
 Dr. Adam Smith's Wealth of Nations, against the declared and positive determi- 
 Book 3, ch. vA., whose account of the nation of the commons neither the crown 
 condition of the towns and boroughs at nor the lords, in any struggle relating to 
 this period, and the decay of the power popular rights, can nqake effectual resis- 
 of the lords and the growth of the power tance. So a close observer of our Ameri- 
 of the inhabitants of the cities is, though can institutions will discover that both 
 brief, perspicuous and satisfactory. Nor- the senate and the executive, on contested 
 ton's Com. Lond. 109. A distinctive questions, ultimately yield to the con- 
 feature of boroughs, in England, is the trolling power and growing importance 
 right of the borough to elect members of of the House of Representatives, 
 parliament. There the term " borough " * An English municipal corporation, 
 includes cities as well as villages, but In as will be explained hereafter, consisted 
 the United States the term " borough " is usually of one or more select or definite 
 not in very general use, and, when used, bodies, and an indefinite body, the latter 
 designates an incorporated village or being generally composed of the bur- 
 town, but not a city. American Cyclo- gesses or citizens ; and a Corporate As- 
 psedia. Vol. III. 536, Borough. sembly was a meeting of all the bodies 
 
 2 History England, Vol. I. ch. i. : " The and not of the select or definite bodies 
 Crown ! it is the House of Commons 1 " alone. Post, sec. 36. 
 
 said an English statesman in 1868; and 
 
§ 8.] INTKODUCTOEY HISTORICAL VIEW. 13 
 
 the whole assembly, still from usage, even when within the time 
 of memory, a by-law may be ■presumed giving the right of elec- 
 tion to a select class (more readily controlled by the crown) in- 
 stead of the whole body.^ 
 
 Afterwards, to increase the power of the crown, James incor- 
 porated towns or boroughs, endowing them with the parliament- 
 ary franchise, but confining the exercise of the right to vote to 
 select classes. The immense power of popular representation 
 was a most active agency in the overthrow of Charles I. This 
 power proving inimical to the arbitrary schemes of the Protector, 
 he expelled the members by violence, and subdued their author- 
 ity in parliament by force. He then secured this power in his 
 own favor by expelling all hostile magistrates and officers and 
 supplanting them with others of his own creation. 
 
 On the restoration, Charles II. commenced his reign by recon- 
 structing the corporations and filling them with his own crea- 
 tures. Judges, also creatures of the king, holding commissions 
 during his pleasure, aided him in his scheme to acquire absolute 
 control over all of the corporations of the realm. London, as the 
 largest and most influential, was selected as an example, and in 
 1683 the famous quo warranto was issued against the city to de- 
 prive it of its charter, for two alleged violations, one of which 
 was stale and both frivolous. Judgment passed, of course, against 
 the city, and its ancient charter was abrogated.^ As a condi- 
 tion of its restoration, it was, among other things, provided that 
 thereafter the mayor, sheriff, clerk, etc., should not exercise their 
 office without the king's consent ; and that if the king twice dis- 
 approved of the officers elected by the corporation, he might him- 
 self appoint others. In short, the city was deprived of the right 
 of electing its own officers, and made dependent upon the crown. 
 Such also was the fate of most of the considerable corporations 
 in England. The whole power was in the hands of the king.^ 
 
 Nor were these arbitrary proceedings confined to England. 
 In 1683 writs of quo warranto and scire facias were issued for the 
 purpose of abrogating the charter of Massachusetts. Patriotism 
 
 1 Willcock on Municipal Corp. 8 ; 3 etc. of London, Book I. eh. xx. ; see also 
 Hallam'a Const. History, 52. The Case of the City of London, 8 How. 
 
 2 Rex V. City of London, Mich. 33 Car. State Trials, 1340, a seq. 
 
 II. ; 2 Show. 262 , Pulling's Laws, etc. of * There were eighty-one quo warranto 
 
 London, 14. The history of the seizure informations brought against municipal 
 
 of the city franchises, by virtue of the corporations by Charles II. and James II. 
 
 writ of qm warranto is given at some 2 Chandl. Com. Debs. 316. 
 length by Norton, Com. on the History, 
 
14 MUNICIPAL CORPORATIONS. [CH. L 
 
 and religion mingled their fervors and combined in its defence, 
 but in vain. Servile judges, in June, 1684, one year and six days 
 after judgment against the city of London, adjudged the charter 
 to be conditionally forfeited ; and the charter government was 
 displaced, and popular representation superseded by an arbitrary 
 commission. In 1687 similar writs were issued against the char-' 
 ters of Rhode Island and Connecticut ; when, as is well known, 
 the people of the latter colony unsuccessfully endeavored to pre- 
 serve this cherished muniment of thdir liberties by concealing it 
 in the charter oak. The colonies, as a result of the English rev- 
 olution of 1688, had their charters restored. Very shortly after 
 the accession of William and Mary a bill to restore the rights of 
 those English corporations which had surrendered their charters 
 to the crown during the reigns of James II. and Charles II. was 
 introduced into parliament, and became a law, with the general 
 applause of men of all parties.^ 
 
 Reference has already been made to the fact that in the time 
 of Elizabeth, the controlling power of corporations was virtually 
 vested in " select bodies." To remedy these and many other 
 abuses, the Municipal Corporations Reform Act (5 and 6 Will. 
 IV. ch. 76) was passed. This statute sought to restore corpora- 
 tions to their original design, as institutions for the local govern- 
 ment of the place, to be controlled by those interested in it, and 
 not by a favored few. It is undoubtedly true, as remarked by 
 Mr. Hallam, that "no political institution can endure which 
 does not rivet itself to the hearts of men by ancient prejudice or 
 acknowledged interest." That is, it cannot permanently endure, 
 althoiigh it may exist long after it ought to cease. If ever an 
 institution outlived its usefulness — lived long after it became a 
 positive evil — it was the municipal corporations of England, 
 prior to the reform act just mentioned, and which became a law 
 as late as 1835. In many important places in England the num- 
 ber of corporators ranged as low as from ten to thirty. In a 
 large majority of the municipalities, the corporations were close ; 
 that is, the governing body had the power to determine who 
 should be admitted to freedom or membership ; and often the 
 privilege was conferred upon non-residents and the residents ex- 
 cluded. The most important franchise they possessed was that 
 of electing members of parliament, and this, in many places, was 
 
 1 Macaulay'a History of England, Vol. lU. ch. xt., where a graphic account of 
 the history of its passage is given. 
 
§ 8.] INTRODUCTOKY HISTORICAL VIEW. 15 
 
 the principal function of the corporation. Not only were the 
 councils self-elective, but their tenure was for life. They were 
 frequently controlled by a single party, and all persons entertain- 
 ing other opinions were excluded. The corporations were not in 
 sympathy with, nor did they reflect the wishes of, the people 
 over whom they exercised local jurisdiction. There was no 
 check upon mal-administration. The property was wasted ; ex- 
 travagance characterized the expenditures of money; officers 
 were elected by the irresponsible councils from favoritism or de- 
 votion to party .1 One of the first acts of the Reformed House 
 of Commons was the overthrow, in 1835, of this intolerable sj'^s- 
 tem, by the passage of the above-mentioned Municipal Corpora- 
 tion Statute,^ to which we shall have frequent occasion to refer 
 in the subsequent pages of this work. V 
 
 Lord Brougham has many titles to the affectionate regard of 
 posterity. Few of his claims are stronger, however, than those 
 which arise from his faithful and effective services in promoting 
 the reform of the Municipal Corporations of Great Britain, by 
 abolishing these self-elected and perpetual councils, by organiz- 
 ing the corporations upon a uniform model, and by establishing 
 in the act the principle that the councils should be selected for 
 short and fixed periods by the votes of the burgesses, thus recog- 
 nizing and adopting the representative system. Mr. Willcock, 
 in concludiug his treatise,^ had recommended a similar reform, 
 but disclaimed being so visionary as to suppose it would soon be 
 effected, since parliament would not willingly relinquish its influ- 
 ence over venal boroughs, and members elected by corporations 
 would not be allowed by their constituents to abandon their 
 ancient though unjust privileges ; but within ten years from the 
 time his language was penned, the reform of which he almost 
 despaired was accomplished. 
 
 1 Glover on Corp. XXXVIII. et seq. ; and 6 Will. 4, ch. 76, but there was sub- 
 Report of Commissioners of Corporate sequently passed an important statute. 
 Inquiry, 32, a seq. known as the London Corporation Reform 
 
 * Post, sec. 85, note, where the leading Act of 1849. See Supplement to Pull- 
 provisions of this important enactment ing's Laws, etc., of London, 
 are given. On the 15th day of August, 1867, after 
 
 ' Willcock's Municipal Corp. 518, 514. a memorable struggle between the lords 
 London, with its " great and notable fran- and the commons, what is known as the 
 chises, liberties, and customs," to treat of Disraeli Reform Bill became » law, by 
 which, say^ Lord Coke (4 Inst. 250), which the right to vote for members of 
 " would require a whole volume of itself," parliament for boroughs was greatly ex- 
 was not embraced in the general act of 6 tended. 
 
16 MUNICIPAL CORPORATIONS. [CH. L 
 
 § 9. In general, all of our American cities, towns, and counties 
 are public corporations, full or quasi. They are created by the 
 legislature, and are usually endowed with power to decide and 
 control local and subordinate matters pertaining to their respec- 
 tive localities. The number and freedom of these local organiza- 
 tions, whereby political power is conferred upon the citizens of 
 the various local subdivisions of a State who have a right to vote 
 and to regulate their own domestic concerns, constitute a marked 
 feature in our free system of gov^rnment.^ In general, each 
 road-district, each school-district, each city and each county is, 
 as to its local concerns, self-governed. These organizations are, 
 of course, subject to the legislature of the State, and their acts, 
 so far as they affect private rights, are also subject to judicial 
 cognizance and review. The policy of creating local public and 
 municipal corporations for the management of matters of local 
 concern, runs back to an early period in our colonial history, is 
 exhibited in all our legislation, and expressly or impliedly guar- 
 anteed in our state constitutions.^ 
 
 The elective franchise in these " local republics " is not, as 
 was the case until recently in England, a privilege dependent 
 upon custom or usage, or confined to certain classes, but is uni- 
 form and universal, extending to all of the adult male citizens. 
 Old sarums and rotten boroughs, as well as property qualifica- 
 tions, are unknown. The effect of this policy of establishing citfes, 
 towns, and districts of country into bodies politic, and investing 
 
 1 " In all quasi corporations, as cities, Mich. 44, 1871. State v. Noyes, 10 Fost, 
 
 towns, parishes, school-districts, member- . 80 N. H. 292 ; Bow v. AUenstown, 84 N, 
 
 ship is constituted by living within cer- H. 361 ; B. c. 9 Am. Bep. 103, and in Feo- 
 
 tain limits." Per Shaw, C. J., Overseers pie v. Detroit, 28 Mich. 228. s. c. 15 Am< 
 
 of Poor, etc. v. Sears, 22 Pick. 122, 130. Kep. 202. Post, sec. 68. Text approved. 
 
 Hill V. Boston, 122 Mass. 344, 856; 1877. Luerhman v. Taxing Diet. 2 Lea.(Tenn.) 
 
 s. c. 23 Am. Bep. 332. 425. Caldwell v. Justices, etc., 4 Jones 
 
 " When a man," says Mr. Justice Mor- (Nor. Car.) Eq. 323 ; Comw. o. Eoxbnry, 
 
 <0B,0akes K.Hill, 10 Pick. 383, 846," moves 9 Gray, 503, 510, 511, note written by 
 
 into a town, he becomes a citizen thereof Mr. Gray, now the Chief Justice of the 
 
 (if possessed of the requisite qualifications Supreme Judicial Court of Massachu- 
 
 as to age, etc., and if he remains the re- setts ; Webster v. Harwinton, 32 Conn, 
 
 quislte length of time) whatever may be 131 ; People v. Albertson, 56 N. Y. 50, 
 
 the desire of himself or the town." See 1873. Post, sec. 58. In Mr. Quincy's 
 
 Post, chapters ii. and iii. ; People v. Caua- Municipal History of Boston, ch. i., will 
 
 day, 73 Nor. Car. 189. 8. c. 21 Am. Bep. be found an interesting historical account 
 
 465. Post, sec. 195. of the constitution of towns in Massachu- 
 
 3 Kent Com. 275; Cooley Const. Limit, setts, and of their mode of organization 
 
 ch. viii. See also this learned author's and operation, particularly of the town 
 
 recent opinion in the Supreme Court of of Boston. Post, sec. 28. 
 Michigan, in the People v. Hurlbut, 24 
 
§10.] 
 
 INTRODUCTORY HISTORICAL VIEW. 
 
 17 
 
 the citizens thereof with the power of self-government, has, upon 
 the whole, been most happy. 
 
 It has been noticed by Chancellor Kent ^ that one of the most 
 philosophical and fair of foreign observers ^ was much struck with 
 the institutions of New England towns ; and considered them as 
 small independent republics in all matters of local concern, and 
 as forming the principle of the life of American liberty existing 
 at this day.* 
 
 § 10. The value of our system of municipal institutions, to 
 which we have thus alluded, may be seen on comparing the politi- 
 cal condition of the people of the United States with that of the 
 people of modern France, — selected as a fair example of a govern- 
 ment without municipal freedom. France is a highly centralized 
 government. The state there is everything; the people, nothing. 
 Municipal institutions, with a democratic element, or with the 
 power of independent local self-government, belong, there, to the 
 past. The central power governs and regulates everything. It 
 provides amusements, constructs roads, bridges, internal improve- 
 
 1 Kent Com. 275, note. 
 
 2 M. De Tocqueville, Democracy in 
 America: "Local assemblies of citizens 
 constitute the strengtii of free nations. 
 Municipal institutions are to liberty what 
 primary schools are to science ; they 
 bring it within the people's reacli ; they 
 teach men how to use and how to enjoy 
 it. A nation may establish a system of 
 free government, but without the spirit 
 of municipal institutions it cannot have 
 the spirit of liberty." M. De Tocque- 
 ville's Democracy in America, ch. v. 
 
 "From time immemorial," says one 
 of the ablest of American common law 
 judges, " the counties, parishes, towns 
 and territorial subdivisions of the country, 
 have been allowed in England, and, in- 
 deed, required, to lay rates on themselves 
 for local purposes. It is most convenient 
 that the local establishments and police 
 should be sustained in that manner ; and, 
 indeed, to the interest taken in them by 
 the inhabitants of the particular districts, 
 and the information upon law and pub- 
 lic matters generally thereby difiused 
 through the body of the people, has been 
 attributed by profound thinkers much of 
 that spirit of liberty and capacity for 
 
 VOL. I. 2 
 
 self-government, through representatives, 
 vrhich has been so conspicuous in the 
 mother country, and which so eminently 
 distinguishes the people of America. 
 From the foundation of our government, 
 colonial and republican, the necessary 
 sums for local purposes have been raised 
 by the people or authorities at home. 
 Court-houses, prisons, bridges, poor- 
 houses and the like are thus built and 
 kept up ; and the expenses of maintaining 
 the poor, ifnd of prosecutions and jurors, 
 are thus defrayed, and of late (in North 
 Carolina) a portion of the common-school 
 fund, and a provision for the indigent 
 insane are thus raised, while the high- 
 ways are altogether constructed and re- 
 paired by local labor, distributed under 
 the orders of the county magistrates. 
 When, therefore, the constitution vests 
 the legislative power in the General As- 
 sembly, it must be understood to mean 
 that power as it had been exercised by 
 our forefathers, before and after their 
 migration to this continent." Per Ruffin, 
 3; in Caldwell v. Justices, etc., 4 Jones 
 (N. Car.) Eq. 823, 1858. 
 
 ' Post, sees. 28, 29 and notes. 
 
18 
 
 MUNICIPAL COEPOEATIONS. 
 
 [oh. I, 
 
 ments, controls trade, inspects manufactures. The effects of this 
 sj'stem are thus stated : " Develop in the slightest degree a 
 Frenchman's mental faculties, and he flies to a town as surely as 
 steel filings fly to a loadstone. From all parts of France men of 
 great energy and resource struggle up, and fling themselves on 
 the world of Paris. There they try to become great functionaries. 
 Through every department of the eighty-four, men of less energy 
 and resource struggle up to the provincial capital. All who have, 
 or think tliey have, heads on their shoulders, struggle into town 
 to fight for ofiice which the government alone can confer. The 
 whole energy and knowledge and resource of the land are bar- 
 relled up in the towns : all between towns is utter intellectual 
 barrenness." ' 
 
 Such are the withering effects of a centralized despotism.^ 
 How different with the decentralized system of government in 
 the United States, where each local constituency chooses its own 
 officers; each road-district, school-district, village, town, city, 
 and county administers its own affairs by the people and for the 
 people.^ 
 
 1 The foregoing was written prior to 
 the dethronement of Napoleon III. and 
 the communist insurrection. The com- 
 mune movement was the natural result 
 of a popular uprising against centralized 
 power. But it went to the other extreme, 
 and contemplated, tvithout a national com- 
 pact, a league of 36,000 independent com- 
 munes. Their declared scheme was this : 
 " France shall no longer be one and indi- 
 visible, empire or republic ; she shall form 
 a federation, not of small stales or prov- 
 inces, but of free cities, linked together 
 OTily so far as shall be consistent with the 
 most absolute decentralization and local 
 government." {Journal Offieiel de la Com- 
 mune, April, 1871.) But a' scheme which 
 made cities, and not the nation, practically 
 the sovereign, is radically defective, and 
 open to all the objections which M. Maz- 
 zini has so forcibly pointed out against it. 
 (Contemporary Review, 1871; reprinted 
 Littell's Living Age, July, 1871, p. 112.) 
 
 ' Barrett v. Brooks, 21 Iowa, 144, 151. 
 By constitutional provision in New York, 
 "It belongs exclusively to the local 
 power to fill the offices, either by election 
 or appointment, as the legislature may 
 direct." Met. Bd. Health v. Heister, 87 
 
 N. Y. 661, 667; People v. McDonald, 69 
 N. Y. 362, 1877; People v. Lynch, 51 
 Cal. 15, 1875, a. c. 21 Am. Kep. 677 ; 
 Opinion of McICinstry, J. See also con- 
 stitution of Illinois, art. ix. sec. 5: con- 
 strued. People V. Chicago, 51 111. 17, 1869; 
 s. c. 2 Am. Rep. 278. Constitutional pro- 
 visions as to qualification of electors and 
 the right of equal representation held to 
 apply to municipal corporations. People 
 «. Canaday, 73 N. C. 198, 1875; s. c. 21 
 Am. Bep. 465. 
 
 Speaking of the power of creating debts 
 and expending money by the city of Phil- 
 adelphia, under the Consolidation Act of 
 1854, in a case where it was held that this 
 power had been invested in the legisla- 
 tive department, and not with subordi- 
 nate officers, Agnew, J., observed : " It is 
 manifest that the city government is 
 founded, in its leading thought, upon the 
 American idea of a popular representa- 
 tive government, its immediate prototype 
 being the form of the state government. 
 The right of supervision and control is 
 therefore vested in the councils as the 
 immediate representatives of the popular 
 will, which exerts and enforces its deter- 
 mining power by means of constantly 
 
§11.] 
 
 INTRODUCTORY HISTORICAL VIEW. 
 
 19 
 
 § 11. To civil territorial divisions, erected into corporations 
 with defined powers of local administration, and the extension of 
 the right to vote for oiScers, to all who are to be affected by their 
 action, are due that familiarity with public affairs and that love 
 of liberty and regard for private rights and property, which are 
 characteristic of the best government in Europe, Great Britain, 
 and the best in America, the United States.^ 
 
 But the picture is not without its shadows. The value of our 
 municipal corporations ha& been impaired by evils that are either in- 
 herent in them or that have generally accompanied administration. 
 Some of these may be briefly indicated : 1. Men the best fitted, by 
 their intelligence, business experience, capacity, and moral charac- 
 ter, for local governors or counsellors are not always, it is feared, — 
 it might be added, are not generally, — chosen. 2. Those chosen 
 are too apt to merge their individual conscience in their corporate 
 
 recurring elections. Subject to this pri- 
 mary power the affairs of this people, 
 great in numbers, wealth, intelligence, and 
 influence, are conducted by departments 
 and officers." Philadelphia v. Flanigen, 
 47 Pa. St. 21, 186 1. 
 
 " What," inquired the Abb^ Siiyes, in 
 a book which gave a powerful impulse to 
 the public mind at the beginning of the 
 French revolution of 1789, — " What is the 
 tiers etat f" And he answered, " Noth- 
 ing." What ought it to be? "Every- 
 thing." Thiers's French Kev. Vol. I. p. 
 27; Guizot's Hist. Civ. Lect. VII. On this 
 popular foundation rests not only our na- 
 tional government, but as well all of our 
 state governments and municipal institu- 
 tions. People V. Detroit, 28 Mich. 228; 
 8. c. 15 Am. Rep. 202, 1873. 
 
 1 After alluding to the antiquity of this 
 system in England, Mr. Justice Brown, in 
 the important case of The People v. Dra- 
 per (15 N. Y. 532, 562), says : " Wherever 
 the Anglo-Saxon race have gone, wher- 
 ever they have carried their language and 
 laws, these communities, each with a 
 local administration of its own selection, 
 have gone with them. It is here that 
 they have acquired the habits of subor- 
 dination and obedience to the laws, of 
 patient endurance, resolute purpose, and 
 knowledge of civil government, which 
 distinguish them frori. every other people. 
 Here have been the seats of modern civ- 
 
 ilization, the nurseries of public spirit, 
 and the centres of constitutional liberty. 
 They are the opposites of those systems 
 which collect all power at a common cen- 
 tre, to be wielded by a common will and 
 to effect a given purpose, which absorb 
 all political authority, exercise all its func- 
 tions, distribute all its patronage, repress 
 the public activity, stifle the public voice, 
 and crush out the public liberty." " The 
 city corporations," remarks a modern 
 jurist, " which have grown up in modem 
 times, are of infinite advantage to society ; 
 they bind men more closely together than 
 does any other form of political associa- 
 tion. But that which most remarkably 
 distinguishes them from the close corpo- 
 rations which formerly existed, is the 
 general spirit of freedom which has been 
 breathed into them. More especially is 
 this the case with town corporations in 
 America, which are as difTerent from those 
 of England as the latter are from similar 
 corporations in Scotland and Holland." 
 Per Grimke, J., Bosebaugh v. Saffin, 10 
 Ohio, 31, 36 ; see also State v. Noyes, 10 
 Fost. (N. H.) 292; and the opinion of Al- 
 len, J. in People v. Albertson, 55 N. Y. 
 50, 57, 1873, where he says, " The right 
 of (local) self-government lies at the foun- 
 dation of our institutions." Post, sec. 183. 
 People V. Detroit, 28 Mich. 228, 1873; s. 
 c. 15 Am. Rep. 20Z 
 
20 MUNICIPAL COKPOEATIONS. [CH. I. 
 
 capacity. Under the shield of their corporate character, men 
 daily do acts which they would never do as individuals. The 
 public, as if to retaliate, acts towards corporations in the same 
 spirit. The notion, though not avowed, is quite too much acted 
 upon, that all that can be obtained from a public, or, indeed, from 
 any corporation, is legitimate spoil. Against these, men, usually 
 honest and fair in their dealings, do not scruple to make demands 
 which they would never make against an individual. ^ 3. As a 
 result, the administration of the affiMrs 6f our municipal corpora- 
 tions is too often unwise and extravagant. 
 
 § 12. Municipal corporations are institutions designed for the 
 local government of towns and cities ; or, more accurately, towns 
 and cities, with their inhabitants, are, for purposes of subordinate 
 .'local administration, invested with a corporate character. To 
 clothe them with powers to accomplish purposes which can better 
 be left to private enterprise, is unwise. Their chief function 
 should be to regulate and govern. To invest them with the 
 powers of individuals or private corporations, for objects not per- 
 taining to municipal rule, is to pervert the institution from its 
 legitimate ends, and to require of it duties it is not adapted satis- 
 factorily to execute. Some of the evil effects of municipal rule 
 have arisen from legislation unwisely conferring upon municipali- 
 ties, at the suggestion, often, of interested individuals or corpo- 
 rations, powers foreign to the nature of these institutions, and 
 not necessary to enable them to discharge the appropriate func- 
 tions and duties of municipal administration. Among the most 
 conspicuous instances of such legislation may be mentioned the 
 power to aid in the building of railways, to incur debts, often 
 without any limit, or any which is effectual, and to issue negotiable 
 securities.^ The result has generally been that debts are incurred 
 so large that they press with disastrous weight on the municipality 
 and its citizens. Extraordinary and extra-municipal powers have 
 been too often incautiously or unwisely granted, and the charters 
 
 • These effects are not confined to this slirink from, did he feel personally re- 
 side of the Atlantic. " It is a familiar sponsible." Essays, No. VII. p. 261, Am. 
 fact," says Mr. Herbert Spencer, " that Ed. 1865 ; and see lb. Essays, No. 5, for a 
 the corporate conscience is ever inferior description — perhaps too highly colored 
 to the individual conscience — that a body — of the unsatisfactory working of the 
 of men will commit, as a joint act, tliat English reformed municipal corporations, 
 which every individual of them would '■' Bee post, sees. 117, 153. 
 
§ 13.] INTKODUCTOEY HISTORICAL VIEW. 21. 
 
 or constituent acts carelessly worded and loosely construed. The 
 remedy suggested by experience consists, in part, in constitutional 
 provisions prohibiting the granting of special charters, and re- 
 quiring all municipal corporations to be organized under general 
 laws. The legislature should also be prohibited from allowing 
 municipal corporations to engage in extra-municipal projects, 
 or to incur debts or levy taxes for such purposes. The pow- 
 ers granted to such corporations, and especially the power to 
 levy taxes, should be more carefully defined and limited, and 
 should embrace such objects only as are necessary for the 
 health, welfare, safety, and convenience of the inhabitants.^ 
 The amount of indebtedness that may be incurred, even for 
 municipal purposes, should also be limited beyond the power to 
 be evaded. 
 
 § 13. Experience has also demonstrated the necessity of more 
 power and more responsibility in the executive head of our muni- 
 cipal institutions. Too often the duties of the mayor or executive 
 officer are only nominal, and to these he gives but little attention 
 — a natural result of his want of importance, and of his inability 
 to control the administration of municipal affairs. If the office 
 were clothed with dignity and real authority ; if the mayor were 
 invested with the veto power ; if he had the sole right to appoint 
 and the unrestricted power to suspend or remove subordinate 
 officials or heads of departments, then the citizens could justly 
 demand of him that he should be individually responsible for the 
 proper conduct of the concerns of the municipality, and if griev- 
 
 ^ " The great increase of corruptions in dom of strictly guarding and limiting the 
 municipal bodies, growing out of the power to create debts is well enforced by 
 ability to create by taxation a fiind which this learned judge. He truly says : " A 
 may be squandered has made many think- valid contract is uncontrollable, demand- 
 ing men doubt the wisdom of endowing ing its performance at the hands of the 
 them with the power." Mr. Justice Mil- judiciary, and calling to their aid the 
 ler, in Rusch v. Des Moines County, 1 whole power of the government. If an 
 Woolw. C. C. 313,822, 1868. And note appropriation for its payment is not made 
 the striking observations of Mr. Justice this year, it must be in the next or some 
 Agnew on the abuses which attend the following." Agnew, J., 47 Pa. St. 21. The 
 administration of finances by municipal gigantic and astounding frauds and cor- 
 bodies and officers, and the too prevalent ruption which have been recently revealed 
 frauds in the procurement and execution (1871) in the local administration of the at- 
 of public contracts, Philadelphia v. Flani- fairs of the great city of New York have 
 gen, 47 Pa. St. 21 ; Hague v. Philadel- awakened public attention to the neces- 
 phia, 48 lb. 527. In the case first cited, sity of more efficient checks upon the 
 the suggestion of the text as to the wis- misuse of municipal powers. 
 
22 MUNICIPAL COKPORATIONS. [CH. 1. 
 
 ances exist, they would know to whom to apply for remedy, or 
 upon whom to fix the blame.^ 
 
 § 14. Municipal corporations, as they exist in this country, it 
 may be further suggested, are of exceedingly complex character. 
 Not here to allude to the legal complexity which inheres in their 
 corporate nature, we may mention that which arises from the 
 exceedingly diverse character of the multiform duties which are 
 confided to their agency and management, requiring the delega- 
 tion of corresponding powers and provisions for their execution. 
 Some of these powers are civil or political, and not peculiar to 
 the people of the municipality ; others are purely local, of which 
 some concern all the inhabitants and some affect only, or mainly, 
 the property owners, on whom exclusively the burden of their 
 exercise, or administration, falls. In the ordinary municipal char- 
 acters, the essential differences between these powers have not 
 been regarded, and, in consequence, adequate checks upon their 
 abuse have not been provided. 
 
 § 15. The general right of suffrage will remain, and in the au- 
 thor's judgment, ought, as respects the popular branch of the mu- 
 nicipal council, to remain as extensive in the municipality as in 
 the state ; and all schemes of municipal reform, whatever their 
 merit, based upon restricting it within narrower limits than those 
 here suggested, are simply impracticable. But if special or extra 
 municipal powers be granted, not affecting civil, political, or other 
 
 I Extended observation of the work- the same effect is Mr. Charles Nordhoff's 
 
 ings of our municipal institutions has sat- interesting article in the North American 
 
 isfied the author that the views expressed Review for October, 1871, entitled " The 
 
 in the text are sound, and he is glad to Misgovernment of New York, — A Rem- 
 
 find tjliem confirmed by the Hon. Josiab edy Suggested." This vigorous writer 
 
 Quincy in his Municipal History of Bos- sketches the defects in the ordinary mu- 
 
 ton, published in 1862. Mr. Quincy was nicipal charters with a masterly hand, 
 
 mayor of the city of Boston irom 1823 to and shows great familiarity with the sub- 
 
 1828, inclusive, and his opinions are en- ject of which he treats. Many of his 
 
 titled to great respect, not only from his suggestions may be profitably studied by 
 
 known ability, but large experience in the legislator. 
 
 municipal affairs. It is interesting to ob- It may be observed that in England, 
 
 serve the striking coincidence of his views under the reformed municipal system, the 
 
 with the recommendations of the " Com- right to a voice in municipal management 
 
 mittee of Seventy," of New York, re- is restricted to occupiers of houses and 
 
 specting municipal administration and the taxpayers, and yet we have, as we have 
 
 importance of efScient executive superin- seen, complaints of municipal extrava- 
 
 tendence, control, and responsibility. Mu- gance, corruption, and abuse, 
 nicipal History of Boston, ch. v. And to 
 
§ 17.] INTEODUCTOEY HISTOEICAL VIEW. 23 
 
 rights which concern all, but which involve directly the expendi- 
 ture and payment of money, it is but just that the project should 
 be required to have the support of a majority in value of those 
 who must pay the expense. 
 
 No small proportion of corruption and abuse in municipalities 
 has had its source in their authority to make public and local im- 
 provements. The power is usually conferred without sufficient 
 care, and the rights of the property owners (often made liable for 
 the whole cost of the improvement or amount of the expenditure) 
 not sufficiently respected and guarded. 
 
 § 16. As it is the part of wisdom to organize municipal corpo- 
 rations under general laws, so that defects and abuses, being gen- 
 erally seen and felt, will be the more speedily and better remedied 
 by the legislature, so municipal corporations should be shorn 
 of the power to grant special privileges, except under ordi- 
 nances, general in their character, and which, on equal or fair 
 terms, will make them available to all. 
 
 The courts, too, have duties, the most important of which is to 
 require these corporations, in all cases, to show a plain and clear 
 grant for the authority they assume to exercise ; to lean against 
 constructive powers, and, with firm hands, to hold them and their 
 officers within chartered limits. 
 
 § 17. If we analyze the complex powers Usually conferred upon 
 a municipality in this country we shall discover that these are of 
 two general classes, viz., 1. Those which relate to health, good 
 government, efficient police, etc., in which all the inhabitants have 
 an equal interest and should have an equal voice. 2. Those 
 which directly involve the expenditure of money, and especially 
 those relating to local improvements the expense of which ulti- 
 mately falls upon the property owners. As respects these the 
 controlling voice should be with those who have to bear the bur- 
 den. No municipal management, in the long run, will be other 
 than extravagant and unwise where the members of the govern- 
 ing body have no substantial interests in the municipality, and 
 where they have more to gain by plundering than by protecting 
 it. To insure good government there must be a real identity of 
 interest between the members of the governing body and the 
 municipality. The problem of satisfactory municipal rule is one 
 
24 MUJUCffAL COEPOEATIONS. [CH. I. 
 
 which is urgently demanding solution, but it is also one which, it 
 is feared, must be slowly wrought out by experience. It is esti- 
 mated that the indebtedness of the municipalities in this country 
 already exceeds $1,000,000,000 ; much of it was created without 
 the sanction of those who will have to pay it, and it is pressing 
 with disastrous force upon the burdened taxpayer. A remedy is 
 imperatively demanded, and suggestions herein made have been 
 offered in the hope that some of them may not be wholly unde- 
 serving of attention. * 
 
 But with all the drawbacks we have mentioned (many of which 
 are remediable) our system of popular municipal organization and 
 administration is, beyond controversy, the fairest to the individual 
 citizen, and, on the whole, the most satisfactory in its operations 
 and results of any that has yet been devised. Any other conclu- 
 sion would be equivalent to admitting that the people .are incapa- 
 ble of enlightened self-government ; that holders of property ought 
 alon'e to be respected, and alone to be endowed with political and 
 municipal rights ; that the few should govern the many, and that 
 our representative system, the flower of modern civilization, based 
 upon the equal right of every man to a voice in the local and gen- 
 eral government, is a failure. It is not improbable that we some- 
 times overestimate the shortcomings in the practical workings of 
 our municipal system, for the system is an open one, in which all 
 are interested to bring its abuses into the light of day. The fine 
 observation of Lord Bacon fitly applies : " The best governments 
 are always subject to he like the fairest crystals, wherein every icicle 
 or grain is seen, which in a fouler stone is never perceived," ^ 
 
 1 Text in preceding sections cited and approved. People v. Harper, 91 UL 357. 
 
§ 18.] COKPOKAXIONS DEFINED AND CLASSIFIED. 25 
 
 CHAPTER II. 
 
 COKPOEATIONS DEFINED AND CLASSIFIED.. — PRIVATE, PUBLIC, 
 AND MUNICIPAL CORPOBATXONS DEFINED — THE NEW ENG- 
 LAND TOWN. 
 
 § 18. (9a) A corporation is a legal institution, devised to con- 
 fer upon the individuals of which it is composed powers, privi- 
 leges, and immunities which they would not otherwise possess, 
 the most important of which are continuous legal identity and 
 perpetual or indefinite succession, under the corporate name, 
 notwithstanding successive changes, by death or otherwise, in 
 the corporators or members of the corporation. It conveys, per- 
 haps, as intelligible an idea as can be given by a brief definition 
 to say that a corporation is a legal person, with a special name, 
 and composed of such members, and endowed with such powers, 
 and such only, as the law prescribes. The most accurate notions 
 of complex subjects come not from definition, but description ; 
 and in the course of the present work we shall describe the class 
 of corporations with which it deals, by their creation, constitu- 
 tion, faculties, powers, duties, liabilities, and purposes. Some of 
 the definitions and deductions in the earlier reports amuse by 
 their quaintness, but are without much practical value. "As 
 touching corporations," says Lord Coke, " the opinion of Man- 
 wood, chief baron, was this : that they were invisible, immortal, 
 having no conscience or soul; and therefore, no subpoena lie th 
 against them ; they cannot speak, nor appear in person, but by 
 attorney." ^ 
 
 Chief Justice MarahalVs description of a corporation is remark- 
 able for its general accuracy and felicitous expression : " A cor- 
 poration is an artificial being, invisible, intangible, and existing 
 only in contemplation of law. Being the mere creature of the 
 law, it possesses only those properties which the charter of its 
 creation confers upon it, either expressly or as incidental to its 
 1 2 Bulst. 233; Willc. Corp. 15. 
 
26 MUNICIPAL COEPOKATIONS. [CH. H. 
 
 very existence. These are such as are supposed to be best cal- 
 culated to effect the object for which it is created. Among the 
 most important are immortality [in the legal sense that it may be 
 made capable of indefinite duration], and, if the expression may 
 be allowed, individuality^ — properties by which a perpetual suc- 
 cession of many persons are considered as the same, and may act 
 as a single individual. They enable a corporation to manage its 
 own affairs, and to hold property without the perplexing intri- 
 cacy, the hazardous and endless netessity of perpetual convey- 
 ances for the purpose of transmitting it from hand to hand. It 
 is chiefly for the purpose of clothing bodies of men, in succession, 
 with these qualities and capacities that corporations were in- 
 vented and are in use. By these means a perpetual succession 
 of individuals are capable of acting for the promotion of the par- 
 ticular object like one immortal being." ^ Thus, though the 
 members change, the corporation itself remains, in its legal per- 
 sonality, the same, all of its members, past and present, consti- 
 tuting, in law but one person, in the same manner as the 
 Thames, or the Mississippi, is still the same river, though the 
 parts composing it are constantly changing.^ The above observa- 
 tions are, in general, applicable to all corporations, private as well 
 as public and municipal. 
 
 § 19. (95) Municipal corporations are bodies politic and cor- 
 porate of the general character above described, established by 
 law to assist in the civil government of the country, but chiefly 
 to regulate and administer the local or internal affairs of the city, 
 town, or district which is incorporated.* 
 
 1 Dartmouth College v. Woodward, 4 * Glover, 8 ; 1 Black. Com. 468. 
 
 Wheat. 636, 1819. Other definitions: 4 » "A body politic," says Lord Coke, 
 
 Black. Com. 37; 1 Kyd Corp. 13; Grant "is a body to take in succession, framed 
 
 Corp. 8, 4 ; Angell & Ames Corp. sec. 1 ; as to its capacity by policy, and therefore 
 
 Glorer Corp. 8, 6. Willcock declines to is called by Littleton (sec. 413) a body 
 
 define, but describes corporations : Munic. politic ; it is called a corporation, or body 
 
 Corp. 15. The last-named author ob- corporate, because the persons are made 
 
 serves that " a corporation continues the into a body, and are of capacity to take, 
 
 same body politic from its creation to its grant, &c., by a particular name." Viner'g 
 
 dissolution, unaltered by the revolution Abr.'Corp. (a 2). A municipal coiporation 
 
 of ages or the successive changes of its is also defined to be " An investing the 
 
 members, so that it is unnecessary to people of a place with the local govern- 
 
 make grants to them and their succes- ment thereof." Salk. 188. " This latter 
 
 sors, or to declare their obligations bind- description," says Mr. Justice Nelson, in 
 
 ing on their successors." 76. 16 ; Glover, the People ». Morris, 13 Wend. 325, 334, 
 
 8 ; Grant, 5; 7 Vin. Abr. 858, 363. 1835, " is the most appropriate, and is jus- 
 
§ 21.] CORPORATIONS DEFINED AND CLASSIFIED. 27 
 
 § 20. We may, therefore, define a municipal corporation to be 
 the incorporation, by the authority of the government, of the 
 inhabitants of a particular place or district, and authorizing them 
 in their corporate capacity to exercise subordinate specified pow- 
 ers of legislation and regulation with respect to their local and 
 internal concerns. This power of local government is the distin- 
 guishing feature of a municipal corporation proper.^ 
 
 " The definition of a municipal corporation," says the Supreme 
 Court of Missouri, "would only include organized cities and 
 towns and other like organizations with political and legislative 
 powers for the local civil government and police regulation of 
 the inhabitants of particular districts included in the boundaries 
 of the corporation " ; and it was accordingly held that the incor- 
 porated board of public schools was not a municipal corporation 
 within the meaning of an act declaring that no person shall be 
 eligible to a certain office who shall hold any office under a muni- 
 cipal corporation.^ 
 
 In Wisconsin the term " municipal corporation," as used in the 
 Constitution of the State, does not include towns,* and when 
 used in Statutes it is presumed to be used in the sense in which 
 the term is used in the Constitution, unless a different legislative 
 intention appears ; and in that State municipal corporations, 
 properly and strictly so called, do not include towns not chartered, 
 school districts, or other quasi corporations.* 
 
 § 21. Creation and powers. — Like other corporations, mu- 
 nicipal corporations must with us be created by statute. They pos- 
 sess no powers or faculties not conferred upon them, either express- 
 ly or by fair implication, by the law which creates them or other 
 statutes applicable to them. Persons residing in or inhabiting a 
 place to be incorporated, as well as the place itself, are — both the 
 persons and the place — indispensable to the constitution of a muni- 
 cipal corporation.^ Artificial succession, also, is of the essence, of 
 
 tilled by the history of these institutions, the meaning of the terms " municipal 
 
 and the nature of the powers with which corporations " and " corporations for mu- 
 
 they were, and are, invested." It is also nicipal purposes," as used in the Consti- 
 
 quoted by Campbell, C. J., in the People tution of the State. Post, sec. 49. 
 V. Hurlburt, 24 Mich. 44, 1871. ' Norton v. Pecli, 4 Wis. 714. 
 
 1 2 Bouv. Law Diet. 21; 2 Kent, 275; * Eaton v. Manitowoc Co. (power to 
 People V. Morris, supra. purchase and hold tax certificates), 44 
 
 2 Heller v. Stremmel, 52 Mo. 309, 1873 ; Wis. 489, 1878. 
 
 State V. LefiBngwell, 54 Mo. 458, 471, * Galesburg r. Hawkinson, 75 HI. 156, 
 1873. This last case discusses at length 1874. Post, sec. 183. 
 
28 MUNICIPAL COEPOEATIONS. [CH. H. 
 
 such a corporation. Municipal corporations are created and exist 
 for the public advantage, and not for the benefit of their ofiicers or 
 of particular individuals or classes. The corporation is the arti- 
 ficial body created by the law, and not the officers, since these 
 are, from the lowest up to the councilmen or mayor, the mere 
 ministers of the corporation. Even the council, or other legisla- 
 tive or governing body, constitutes, as it has been well remarked, 
 neither the corporation, nor in themselves a corporation.^ It is 
 quite impossible, in any brief space,*to convey an adequate idea 
 of the exact nature and properties of a municipal corporation. 
 There is nothing in the law- more complex and abstruse. Al- 
 though the inhabitants of a place be incorporated, they do not 
 constitute the corporation ; neither, as we have just observed, is 
 it constituted by the governing body. Notwithstanding Mr. 
 Kyd's criticism, the corporation is invisible, for, although we may 
 see all the inhabitants, or all of the officers, we do not see the 
 legal body which makes the corporation, as we see an army ; but 
 this is a property common to all corporations. An additional 
 complexity in municipal corporations arises out of the various 
 and diverse powers usually conferred, giving them an extremely 
 composite character. The primary and fundamental idea of a 
 municipal corporation is an agency to regulate and administer 
 the internal concerns of a defined locality in matters peculiar 
 to the place incorporated, or at all events not common to the 
 state or people at large; but it is the constant practice of 
 the states to make use of the *incorporated instrumentality, 
 or of its officers, to exercise powers, perform duties, and exe- 
 cute functions not strictly or properly local or municipal in 
 their nature, but which are, in fact, state powers, exercised 
 by local officers, within defined territorial limits ; and it is 
 important, as we shall hereafter see, to keep this distinction in 
 mind. In theory, the two classes of powers are distinct ; but 
 the line which separates the one from the other is often very 
 difficult to trace. The point may be illustrated from the English 
 law : If the king incorporate a town, its officers will have no 
 implied power as conservators or justices of the peace ; express 
 words are necessary to confer this power, and when they act in 
 
 ' Beg. V. Paramore, 10 Ad. & El. 286 ; & Cress. 162 ; Brown ». Gates, 15 W. Va. 
 Reg. V. York, 2 Q. B. 850; Grant, 357; (approving text) 131. 
 Glover, 4 ; Harrison ii; Williams, 8 Barn. 
 
§ 23.] CORPORATIONS DEFINED AND CLASSIFIED. 29 
 
 the latter capacity, it is not because they are corporate officers, 
 but because of powers expressly annexed to their corporate 
 offices ; and the two capacities remain distinct, although united 
 in the same person.^ The subject itself will be elsewhere 
 discussed. The name of the municipal corporation, its boun- 
 daries, its officers, its powers, its duties, and the like are subjects 
 regulated by legislative enactment, and will be hereafter noticed. 
 
 § 22. (10) Corporations intended to assist in the conduct of local 
 civil government are sometimes styled political, sometimes public, 
 sometimes civil, and sometimes municipal, and certain kinds of 
 them with very restricted powers — g'ttasi corporations — all these 
 by way of distinction from private corporations. All corporations 
 intended as agencies in the administration of civil government 
 are public, as distinguished from private corporations. Thus 
 an incorporated school-district, or county, as well as city, is a 
 public corporation ; but the school-district or county, properly 
 speaking, is not, while the city is a municipal corporation. All 
 municipal corporations are public bodies, created for civil or 
 political purposes ; but all civil, political, or public corpor- 
 ations are not, in the proper use of language, municipal cor- 
 porations. The phrase "municipal corporations," in the 
 contemplation of this treatise, has reference to incorporated 
 villages, toions, and cities, with power of local administration, as 
 distinguished from other public corporations, such as counties 
 and quasi corporations.^ 
 
 § 23. The distinction, as it is usually drawn between munici- 
 pal corporations proper, such as chartered towns and cities, or 
 towns and cities voluntarily organized under general incorporating 
 acts, such as exist in a number of the States, and involuntary quasi 
 corporations, such as counties, is this : Municipal corporations 
 proper are called into existence either at the direct solicitation 
 or by the free consent of the persons composing them, for the 
 
 1 1 Kyd, 827 ; People v. Hurlburt, 24 and the distinction approved, 'and made 
 
 'M.\(^. a, \%1\, per Campbell, C. 3.; s. c. 6 the basis of the decision in Beach v. 
 
 Am. Law Rev. 876 ; s. o. 9 Am. Eep. 103; Leahy, 11 Kansas, 23, 30, 1873. 
 S. P. People V. Detroit, 28 Mich. 228, ^ Hamilton Co. v. Mighels, 7 Ohio St. 
 
 1873 ; 8. c. 15 Am. Bep. 202, in which the 109, 1857. Finch v. Board, etc., 30 Ohio 
 
 nature of municipal corporations and the St. 37, Askew v. Hale, 64 Ala., 639 ; ap- 
 
 purposes of their creation are fully dis- proving text, 
 cussed by CooUy, 3. The text quoted 
 
30 MUNICIPAL COEPOEATIONS. [CH. 11. 
 
 promotion of their own local and private advantage and conven- 
 ience. On the other hand, " Counties are at most but local 
 organizations, which, for the purposes of civil administration, are 
 invested with a few functions characteristic of a corporate exist- 
 ence. They are local subdivisions of the state, created by 
 the sovereign power of the state, of its own sovereign will, 
 without the particular solicitation, consent, or concurrent action 
 of the people who inhabit them. The former (municipal) 
 organization is asked for, or at least assented to, by the people 
 it embraces ; the latter organization ( counties } is superim- 
 posed by a sovereign and paramount authority.^ A county is 
 one of the public territorial divisions of a state, created and 
 organized for public political purposes connected with the admin- 
 istration of the state government and specially charged with the 
 superintendence and administration of the local affairs of the com- 
 munity ; and, being in its nature and objects a municipal organiza- 
 tion, the legislature may, unless restrained by the constitution, or 
 some one of those fundamental maxims of right and justice with 
 respect to which all governments and society are supposed to 
 be organized, exercise control over the county agencies, and 
 require such public duties and functions to be performed by 
 them as fall within the general scope and objects of the municipal 
 organization.^ 
 
 " A municipal corporation proper is created mainly for the inter- 
 est, advantage, and convenience of the locality and its people ; ^ 
 a county organization is created almost exclusively with a view to. 
 the policy of the state at large, for purposes of political organ- 
 ization and civil administration, in matters of finance, of education, 
 of provision for the poor, of military organization, of the means 
 of travel and transport, and especially for the general adminis- 
 tration of justice. With scarcely an exception, all the powers 
 and functions of the county organization have a direct and 
 exclusive reference to the general policy of the state, and are, in 
 fact, but a branch of the general administration of that policy." * 
 
 1 Hamilton Co. v. Mighels, supra. to make the county liable in damages to 
 
 s Talbot V. Queen Anne's Co., 50 Md. one who suffered a personal injury from 
 
 245. Post, oh. iv. the neglect of the commissioners of the 
 
 ' Post, § 188. county in the disciiarge of their official 
 
 * Hamilton Co. v. Mighels, 7 Ohio St. duties, says: "But, it is said, the mem- 
 
 109. In this case from which we have bersofthe board of county commissioners 
 
 quoted, the learned judge, adverting to are chosen by the electors of the county, 
 
 the case in hand, in which it was sought and hence the board is to be regarded as 
 
§24.] 
 
 CORPOKATIONS DEFINED AND CLASSIFIED. 
 
 31 
 
 § 24. An incorporated city or town sometimes embraces by- 
 legislative provision two distinct corporations, to wit, the civil and 
 the school, existing within the same territory. It is in such cases a 
 distinct municipal corporation for school purposes, and under the 
 statute or charter may be bound as such for the contract price 
 of materials furnished and labor performed by another in the 
 erection of a school-building for such corporation.^ More gener- 
 ally, however, school-districts are organized under the general 
 laws of the state, and fall within the class of corporations known 
 as quasi corporations. Speaking of the powers of separate 
 school-districts not included in a municipality and of their 
 officers, Bell, J. observes,^ " These little corporations have 
 sprung into existence within a few years, and their corporate 
 powers and those of their officers are to be settled by the con- 
 structions of the courts upon a succession of crude, unconnected, 
 and often experimental enactments. School-districts are in 
 New Hampshire quasi corporations of the most limited powers 
 
 the agents of the county, for whose torts, in 
 the performance of official duties, the 
 county ouglit to be responsible. True, 
 the people of the county elect the board 
 of county commissioners ; but they also 
 elect the sheriff and treasurer of the 
 county. Are the people of the county, 
 therefore, responsible for the malfea- 
 sances in office of the sheriff or for the 
 official defalcations of the county treas- 
 urer? This will not be pretended 
 
 We cannot but think that county com- 
 missioners are not agents or representa- 
 tives of the county in any such sense or 
 manner as to render the people of the 
 county justly answerable for their neg- 
 lect ; even if the neglect be such as would 
 create a civil liability against a natural 
 person or a municipal or private corpora- 
 tion. It is," he adds, " undoubtedly com- 
 petent for the legislature to make the 
 people of a county liable for the official 
 delinquencies of the county commission- 
 ers ; but this has not yet been done, and 
 we think such liability cannot be derived 
 from the relations of the parties, either 
 on the principles or the precedents of the 
 common law." Followed, Jacobs v. Ham- 
 ilton Co., 4 Fisher Pat Cases. 81, 1862. 
 Also cited and followed in Wehn ». Gage 
 Co. 5 Neb. 494, 1877, where It was held 
 that, in the absence of a statute creating 
 
 the liability, the county was not liable to 
 an action by reason of its jail being so 
 erected and kept as to become an actual 
 nuisance to persons residing near it. Sec. 
 22, cited and approved. State v. Leffing- 
 well, 64 Mo. 468, 1873 ; Askew v. Hale 
 Co., 64 Ala. 639, 1875, s. c. 25 Am. Rep. 
 730. See also Soper v. Henry Co., 26 
 Iowa, 264, 1868 ; Treadwell c;. Commis- 
 sioners, 11 Ohio St. 190; Angell & Ames, 
 sees. 14, 23, 24, 25. Post, §§ 57, 66, also 
 chapter on Actions. 
 
 1 Princeton c^. Gebhart, 61 Ind. 187; 
 Inglis V. Hughes, 61 Ind. 212 ; Wright v. 
 Stockman, 59 Ind. 65 ; Sheffield ». An- 
 dress, 56 Ind. 157. 
 
 '^ Harris v. School District, 8 Foster, 
 28 (N. H.) 58, 61, 1853. See also Wilson 
 V. School Dist., 32 (N. H.) 118, 1856 ; Fos- 
 ter V. Lane, 10 Foster, 30 (N. H. ) 806, 316 ; 
 Giles V. School Dist., 11 Fost. 31 (N. H.) 
 804 ; Scales v. Chattahoochee County, 31 
 Geo. 225, 1870; Rogers v. People, 68 111. 
 164, 1878, citing text. So also Beach v. 
 Leahy, 11 Kansas 28, 30, 1873. A school 
 district is bound by the contract of its 
 board for repairs of its school-house, not- 
 withstanding that a given sum had been 
 voted for such repairs and expended for 
 such object. Conklin v. School Dist. 22, 
 Kansas, 521. And under a parol contract. 
 Cases in note 1, supra. 
 
32 MUinCIPAL CORPOKATIONS. [OH. 11. 
 
 known to the laws. They have no powers derived from 
 usage. They have the powers expressly granted to themi, and 
 such implied powers as are necessary to enable them to perform 
 their duties, and no more. Among them is the power to vote 
 money for specified purposes, and the power to appoint com- 
 mittees ' to carry their votes ' relative to those purposes ' into 
 efPect.' The district may clearly, by their votes for building and 
 repairing school-houses, limit the. expense to a definite sum ; 
 and they may limit the precise repiirs or the exact description 
 of the school -house to be built, and when this is done . the com- 
 mittee (appointed to ' carry the votes into effect') cannot bind the 
 district by exceeding those limits. These committees are special 
 agents, without any general powers over the affairs of the district, 
 and their powers are confined to a special purpose ; and no infer- 
 ence can be drawn from the general nature of their powers. 
 The liability of such powers to abuse furnishes the strongest 
 arguments against their existence," as a committee might load 
 the district with debts, though the district had expressly limited 
 their authority. 
 
 § 25. (10a) Civil corporations are of different grades or classes, 
 but in essence and nature they must all be regarded as public. 
 The school-district or the road-district is usually invested by gen- 
 eral enactments operating throughout the state, with a corporate 
 character the better to perform within and for the locality its 
 special function, which is indicated by its name. It is but an 
 instrumentality of the state, and the state incorporates it that it 
 may the more effectually discharge its appointed duty. So with 
 counties. They are involuntary political or civil divisions of the 
 state, created by general laws to aid in the administration of gov- 
 ernment. Their powers are not uniform in all the States, but 
 these generally relate to the administration of justice, the support of 
 the poor, the establishment and repair of highways, — all of which 
 are matters of state, as distinguished from municipal concern. 
 They are purely auxiliaries of the state ; and to the general stat- 
 utes of the state they owe their creation, and the statutes confer 
 upon them all the powers they possess, prescribe all the duties 
 they owe, and impose all liabilities to which they are subject. 
 Considered with respect to the limited number of their corporate 
 powers, the bodies above named rank low down in the scale or 
 
§ 27.] CORPORATIONS DEFINED AND CLASSIFIED. 33 
 
 grade of corporate existence ; and hence have been frequently 
 termed quasi corporations. This designation distinguishes them 
 on the one hand from private corpoj'ations aggregate, and on the 
 other from municipal corporations proper, such as cities or towns 
 acting under charters, or incorporating statutes, and which are 
 invested with more powers and endowed with more functions and 
 a larger measure of corporate life. 
 
 § 26. It will appear hereafter that many of the courts have 
 drawn a marked line of distinction between municipal corpora- 
 tions and quasi corporations, in respect to their liability to persons 
 injured by their neglect of duty ; holding the former liable, with- 
 out an express statute giving the action, in cases in which the 
 latter are not considered liable unless made so by express legisla- 
 tive enactment. One reason often given for the distinction is, 
 that with respect to local or municipal powers proper (as distin- 
 guished from those conferred upon the municipality as a mere 
 agent of the state) the inhabitants are to be regarded as having 
 been clothed with them at their request and for their peculiar and 
 special advantage, and that as to such powers and the duties 
 springing out of them, the corporation has a private character, and 
 is lifible, on the same principles and to the same extent as a pri- 
 vate corporation. This subject will be fully examined in its ap- 
 propriate place, and is only alluded to here for the purpose of 
 noting the distinction which has been made between municipal 
 and other public corporations.! But that a municipal corporation 
 is in any just view a private corporation, or possesses a double 
 character, the one private and the other public, although often 
 asserted, is only true in a modified sense. In their nature and 
 purposes, municipal corporations, however numerous and complex 
 their powers and functions, are essentially public.^ 
 
 § 27. Since the fundamental idea of a municipal corporation 
 proper is to invest the people of a thickly populated place or dis- 
 trict with the power of regulating their own local affairs, which 
 
 ^ Post, ch.xxiii. Text approved. Han- of municipal corporations, as respects 
 
 non V. St. Louis County, 62 Mo. 318, 316, their property rights, is argued with great 
 
 1876; Heller v. Stremmel, 52 Mo. 809, force by Cqotey, J., in People v. Detroit, 
 
 1873; State v. Leffingwell, 54 Mo. 458, 28 Mich. 228 ; s. c. 18 Am. Eep. 202. See 
 
 471, 1873. post, ch. iv. 
 
 ^ The doctrine of the private character 
 
 VOL. I. 3 
 
34 MUNICIPAL OOKPORATIONS. [CH. II. 
 
 are of a nature not common to the state at large, and which it is 
 supposed they can regulate for themselves better than the legis- 
 lature can regulate them by general enactments, and since the 
 powers and duties of the corporation and even its existence are at 
 all times subject to legislative will and pleasure, the soundness of 
 the distinction so often made between the public and private 
 powers and functions of the municipality, at least in the breadth 
 ascribed to it by many of the cases, may be douLtftd.^ On princi- 
 ple, perhaps, the following may be regarded as the true view. As 
 lespects the usual and ordinary legislative and governmental 
 powers conferred upon a municipality the better to enable it to 
 aid the state in properly governing that portion of its people re- 
 siding within the municipality, such powers are in their very na- 
 ture public, although embodied in a charter and not conferred by 
 laws general in their nature and applicable to the entire state. 
 But powers or franchises of an exceptional and extraordinary 
 nature may be, and sometimes are, conferred upon municipalities, 
 such as are frequently conferred upon individuals or private cor- 
 porations. Thus, for example, a city may be expressly author- 
 ized in its discretion to erect a public wharf and charge tolls for 
 its use,2 or to supply its inhabitants Avith 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 be- 
 cause they are such as may be, and often are, conferred upon indi- 
 viduals and private corporations, and result in a special advantage 
 or benefit to the municipality 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 municipality has a private as well 
 as a public character; but it is only as thus qualified that this 
 famous distinction, so often asserted has, in the author's judgment, 
 solid ground upon which to rest. 
 
 § 28. (11) The New England Town. — In the New England 
 States, public corporations have, in many respects, a peculiar char- 
 
 > See cases cited post, sec. 66, and for 540, 1875 ; and of Gray, C. J., in Hill v- 
 illustrations and application of the doc- Boston, 122 Mass. 344, 1877. 
 trine, post, sec. 58,; also chap. 23 Ac- ^ Pittsburg i-. Grier, 22 Pa. St. 54, 1853 ; 
 
 tions. See observations of Hunt, J., in post, sec. 113, note, and the chapter on 
 Barnes v. District of Columbia, 91 U. S. Actions. 
 
 ^ 76. post, chapter on Actions. 
 
§28.] 
 
 CORPORATIONS DEFINED AND CLASSIFIED. 
 
 35 
 
 aeter. In some instances, there are acts incorporating cities, 
 giving them defined powers and providing a special mode of gov- 
 ernment; but even then the general laws in relation to towns, 
 when not inconsistent with the provisions of the local act, ordina- 
 rily apply to the places specially incorporated. In the New Eng- 
 land town proper, the citizens administer the general affairs in per- 
 son, at the stated corporate or town meetings, and through officers 
 elected by themselves.^ The towns are charged with the support 
 of schools, the relief of the poor, the laying out and repair of high- 
 ways, and are empowered to preserve peace and good order, main- 
 tain internal police, and direct and manage generally, in a man- 
 ner not repugnant to the laws of the state, their prudential affairs ; 
 and for defraying these and all necessary and lawful charges, they 
 may levy and collect taxes. Speaking generally, the New England 
 towns are organized after the same model ; and an exact notion 
 of their character will be best obtained by reference to the leading 
 statutory provisions in Massachusetts respecting them, given in 
 the note.^ The town in New England, while somewhat anoma- 
 
 1 In toians, according to the use of the 
 word in the New England States and some 
 of the others, the citizens administer the 
 general affairs in person, in town meet- 
 ings. In cities, tliis is done by means of a 
 mayor, aldermen, and council, to whom 
 the citizens entrust most of the legislative 
 and executive powers of the place. State 
 V. Glennon, 3 Rh. Is. 276, 278, per Staples, 
 C, J. In New England, " town " is a 
 generic term, and it will embrace cities, 
 unless the contrary appears in other parts 
 of the statute to have been the intent of 
 the legislature. lb. The reader will find 
 the opinion of Gray, C. J., in Hill v. Bos- 
 ton, 122 Mass. 844 ; s. c. 23 Am. Rep. 
 ■332, 1877, highly instructive as to the 
 character of New England towns and 
 cities. As to general liabilities, there is 
 no substantial distinction between cities 
 and towns under the legislation of Massa- 
 chusetts, lb. p. 354. 
 
 ^ Summary of the leading statutory 
 provisions in Massachusetts respecting 
 towns : — 
 
 1. As to powers and duties. — They are 
 " bodies corporate, with all the powers here- 
 tofore exercised by them, and subject to 
 all the duties to which they have hereto- 
 forie been subject." Genl. St. 18W, ch. 
 
 xviii. sec. 1. " Towns may, in their cor- 
 porate capacity, sue and be sued in the 
 name of the town." lb. sec. 8. They 
 may hold real estate and personal prop- 
 erty " for the public use of the inhabi- 
 tants," and also " in trust for the support 
 of schools and the promotion of education 
 within the limits of the town." 76. sec. 
 9. They may make contracts necessary 
 and convenient " for the exercise of their 
 corporate powers," and may dispose of 
 their corporate property, lb, sees. 8, 9. 
 " They may, at legal meetings, grant and 
 vote such sums as they j udge necessary, 
 for the following purposes : For the sup- 
 port of town schools; for the relief, etc., 
 and employment of the poor; for tlie lay- 
 ing out and discontinuing and repair uf 
 highways; for procuring the wiiting and 
 publishing of town histories ; for burial 
 grounds ; for encouraging the destruction 
 of noxious animals ; for all other necessary 
 charges arising therein." lb. sec. 10. " May 
 make necessary by-laws, not repugnant to 
 the laws of the state, for directing and 
 managing the prudential affairs, preserv- 
 ing the peace and good order, and main- 
 taining the internal police thereof." lb. 
 sec. II. But such by-laws must, before 
 taking effect, be approved by the Supe- 
 
36 
 
 MUNICIPAL COEPOKATIONS. 
 
 [CH. n, 
 
 lous, has some of the usual powers of a regular municipal corpo- 
 ration, and some of the characteristics of the county organizatithns 
 
 i<ior Court, or, in vacation, a judge thereof. 
 lb. sec. 14. Tliey are binding upon all 
 within the limits of the town, strangers 
 as well as inhabitants. Ih. sec. 16. 
 
 2. Corporate or Toum Meetings,-^" Ev- 
 ery male citizen of twenty-one years of 
 age and upwards (except paupers, etc.), 
 who has resided within the state one year, 
 and within the town in which he claims 
 the right to vote, six months, and who has 
 paid a state or county tax, &c., shall hare 
 a right to vote upon all questions at all 
 meetings for the transaction of town af- 
 fairs, and no other person shall be entitled 
 to vote." lb. sec. 19. " The annual meet- 
 ing of each town shall be held in Febru- 
 ary, March, or April ; and other meetings 
 at such time as the selectmen may order." 
 lb. sec. 20. Warrants issue for all meet- 
 ings, under the hands of the selectmen, 
 directed to constables or others, who no- 
 tify such meeting in the manner pre- 
 scribed by the by-laws or vote of the 
 town. Ih. sec. 21. " The warrant shall 
 express the time and place of the meeting, 
 and the subjects to be there acted upon ; 
 . and nothing acted upon shall 
 have a legal operation unless the subject 
 matter thereof is contained in the war- 
 rant." lb. sec. 22. If selectmen unrear 
 8ona1)ly refuse to call a meeting, any jus- 
 tice of the peace may do so upon the 
 application of ten or more legal voters of 
 the town. lb. sec 23. Provision is made 
 for moderating and conducting the meet- 
 ing. Ih. sees. 25-30. Town officers are 
 elected at the annual meeting, who serve 
 for one year, and until others are chosen 
 and qualified. These consist of select- 
 men, assessors, treasurer, constables, who 
 are ex-officio collectors unless others be 
 specially chosen ; field drivers, fence 
 viewers, surveyors of lumber, measurers 
 of wood, unless selectmen appoint, " and 
 all other usual town officers." Ih. sec. 
 31. Then follows a variety of provisions 
 respecting the duties of these several offi- 
 cers, and the manner of their performance. 
 In addition, there are acts incorporating 
 and establishing cities. " The laws in 
 relation to towns, where not inconsistent 
 with the general or special provisions of 
 the acts establishing cities, apply to them ; 
 
 and cities are subject to the lialiilities, 
 and city councils have the powers uf 
 towns. Tlie mayor and aldermen shall 
 have the powers and be subject to the 
 liabilities of selectmen, etc., if no other 
 provisions are made in relation thereto." 
 General St. 1860, eh. xix. 166. " The 
 q^arked and characteristic distinction 'be- 
 tween a town organization (in Massachu- 
 setts) and that of a city is, that in the 
 former all of the qualified inhabitants 
 meet, deliberate, act, and vote in tlieir 
 natural and personal capacities ; whereas, 
 under a city government, this is all done 
 by their representatives." Per Shaw, C. 
 J., in Warren v, Charlestowo, 2 Gray, 84, 
 101. As to the origin and power of towns 
 in Massachusetts, consult Commonwealth 
 V. Boxbury, 9 Gray, 451, 1857 ; opinion of 
 Shaw, C. J., 476, and the valuable note of 
 Mr. (since Chief Justice) Gray, pp. 503, 
 528 ; and the opinion of the same eminent 
 judge in Hill v. Boston, 122 Mass. 844, 
 i877; 8. o. 23 Am. Bep. 332; Quincy's 
 Municipal History of Boston, ch. i. ; ani/', 
 ch. i. Towns were not expressly author- 
 ized to sue and be sued until 1694, nor for- 
 mally incorporated until 1786. lb. 9 Gray, 
 511, note " G";2 Dane's Ab. 698 j Wil- 
 lard V. Newburyport, 12 Pick. 227, 231 j 
 Spaulding v. Lowell, 23 Pick. 77, 78. 
 Post, sec. 187, note. The necessity of tlie 
 representative system in a populous place is 
 strikingly illustrated in The People v. De- 
 troit, 28 Mich. 228, 1873 ; s. c. 15 Am. 
 Bep. 202, where the legislature had pro- 
 vided that an important question should 
 be decided by a vote of a citizens' meet- 
 ing. Two meetings were held, but tiie 
 noise, confusion, and violence prevented 
 discussion and determination, and this 
 provision was subsequenHy repealed. 
 Speaking of the represerUative system in 
 general, the late learned Dr. Lieber calls 
 it " a flower of civilization, such as neither 
 antiquity or the Middle Ages either en- 
 joyed or suspected ; sometliing diiect and 
 positive in itself; . . one of the very 
 greatest political institutions which adorn 
 the pages of the history of civiUzatioa, 
 ior through it alone can be obtained reiU 
 civil liberty, broad, extensive, and natural 
 freedom." 2 Pol. Ethics, 489. The gen- 
 
§ 28.] COEPOEATIONS DEFIHTED AND CLASSIFIED. 37 
 
 in man}' of the States. The New England town affords, perhaps, 
 an example of as pure a democraey as anywhere exists. All of 
 the qualified inhabitants meet and directly act upon and manage, 
 or direct the management of, their own local concerns. This 
 form of government was adopted at a very early period, and is 
 firmly adhered to and deeply cherished by the people of the New 
 England States. The result has demonstrated how well adapted 
 it is to prombte the well-being of the communities that for so long 
 a space of time have thus governed themselves. The remarkable 
 growth and prosperity of the New England States, not the most 
 favored by nature, and the intelligence and character of the peo- 
 ple, are facts known to all ; and it is not strange that these results 
 should be attributed, in a large measure, to this system of locat 
 popular government. But, in the course of time, many of the 
 towns, or portions thereof, grew to be large and populous, and the 
 system of meetings of the electors, in their original capacity, be- 
 came inconvenient and almost impracticable. When the popula- 
 tion of a town or place exceeds 10,000 or 12,000 persons, the need 
 for the representative system is urgently felt. Accordingly, in 
 the New England States, there are now, in addition to towns, a 
 large number of incorporated cities, with charters or constituent 
 statutes, organized upon the usual representative model, with a 
 legislative or governing body, and an executive head and subor- 
 dinate officers. The people of the large city of Boston, in partic- 
 ular, were wedded to the town system, and struggled long against 
 the change to the representative plan ; and five successive times 
 between 1784 and 1821 rejected well-considered schemes for a 
 city government. The town continued to be governed by meet- 
 itigs of the electors en masse, acting through boards and oifi- 
 cers, until the place had 40,000 inhabitants, of whom seven 
 thousand were qualified voters. In 1822, however, the legislair 
 ture, at the desire of a majority of the voters, granted the place 
 a city charter, by which it was provided that the control of its 
 affairs should be in a mayor and city council. After this, other 
 towns, from time to time, made the change from the town to the 
 city plan ; so that, as before observed, we have in the New Eng- 
 land States both modes of local administration. The town sys- 
 
 eral justice of this eulogium cannot be elected by those who do not pay the taxes, 
 
 deniedjbut this System has worked every- the expenditure of which it is his princi- 
 
 where better than it has in our large pal function to direct and control, 
 cities, where the representative is often 
 
38 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. ir. 
 
 tem is the general one ; the city, or representative system, is the 
 exceptional one, and is confined to places of compact population 
 and considerable size.^ 
 
 ' No city was incorporated in Massa- 
 chusetts until after the amendment of the 
 constitution of that State in 1820. Per 
 Shaw, C. J., in Warren v. Cliarlestown, 
 2 Gray, 84. The purpose and effect of 
 the change in the form of municipal gov- 
 ernments in Massachusetts under the 
 constitutional provision authorizing the 
 establishment of cities, discussed by Gray, 
 C. J., in Hill V. Boston, 122 Mass. 344, 
 1877, s. c. 23 Am. Eep. 332. After re- 
 ferring to the previous attempts in 1784, 
 1786, 1791, 1804, and 1815, to change the 
 town government of Boston, Mr. Josiah 
 Quincy, in his Municipal History of Bosr 
 ton, p. 28, continues : " In 1821 the im- 
 practicability of conducting the munici- 
 pal interests of the place, under the form 
 of town government, became apparent to 
 the inhabitants. With a population up- 
 wards of forty thousand, and with seven 
 thousand qualified voters, it was evidently 
 impossible calmly to deliberate and act. 
 When it town-meeting was held on any 
 exciting subject, in Faneuil Hall, those 
 only who obtained places near the mod- 
 erator could eved hear the discussion. 
 A few busy or interested individuals easily 
 obtained the management of the most 
 important affairs, in an assembly in which 
 the greater number could have neither 
 voice nor hearing. When the subject 
 was not generally exciting, town-meet- 
 ings were usually composed of the select- 
 men, the town officers, and thirty or forty 
 inhabitants. Those who thus came were, 
 for the most part, drawn to it from some 
 official duty or private interest, which, 
 when performed or obtained, they gen- 
 erally troubled themselves but little, or 
 not at all, about the other business of the 
 meeting. In assemblies thus composed, 
 by-laws were passed, taxes, to the amount 
 of one hundred or one hundred and fifty 
 thousand dollars, voted, on statements 
 often general in their nature, and on re- 
 ports, as it respects the majority of voters 
 present, taken upon trust, and which no 
 one had carefully considered except, per- 
 haps, the chairman. In the constitution 
 of the town government there had re- 
 sulted, in the course of time, from exi- 
 
 gency or necessity, a complexity little 
 adapted to produce harmony in action, 
 and an irresponsibility irreconcilable with 
 a wise and efficient conduct of its affairs. 
 On the agents of the town there was no 
 direct check or control; no pledge for 
 fidelity but their own honor and sense of 
 character. The prosperity of thp town 
 of Boston, under such a form of govurn- 
 ment ; the few defalcations which had 
 occurred ; the frequent, and often, for 
 years, uninterrupted, re-election of the 
 same members to the officiating boards, 
 are conclusive evidence of the prevailing 
 high state of morals, and intelligence 
 among the inhabitants." After mention- 
 ing the different boards among which the 
 executive power was divided, and which 
 acted independently of each other, and 
 which were invested with the expending 
 power, and, in effect, with exercise of the 
 whole power of taxation, Mr. Quincy 
 proceeds : " A conviction of the want of 
 safety and of responsibility in a machine 
 thus complicated and loosely combined, 
 became at length so general that the 
 inherited and inveterate antipathy to a 
 city organization began perceptibly to 
 diminish. About this time, also, one of 
 the most common and formal objections 
 to a city organization was removed. The 
 constitution of Massachusetts, which was 
 passed in 1780, contained no express 
 authority to establish a city organization ; 
 and, in every attempt to change that of 
 the town, it never failed to be zealously 
 contended that the legislature of the com- 
 monwealth possessed no such power. 
 But by the amendments to the constitu- 
 tion, made by the convention of 1820, 
 and adopted by the people, this power 
 was expressly recognized. The question, 
 therefore, now stood on its own merits, 
 and independent of constitutional objec- 
 tions. The debates, also, which occurred 
 in this convention, had a tendency to 
 open the eyes of the inhabitants to their 
 Dwn interests, and to allay some of the 
 long-cherished prejudices against a city 
 organization." In 1821 the people voted 
 to make the change, and measures were 
 immediately taken to obtain the snnction 
 
§ 29,] COEPOKATIONS DEFINED AND CLASSIFIED. 39 
 
 § 29. (12) The character of towns in New England, and in 
 what respects they differ from English municipal corporations, 
 existing by prescription or special charter, prior to the legislation 
 by parliament in 1835, before mentioned,^ and the care to be 
 observed in applying the English cases relating to such corpora- 
 tions to the town and city organizations of New England, are 
 well set forth by the learned Chief Justice Perley, in delivering 
 the opinion of the Supreme Court of New Hampshire, in an im- 
 portant case to which we shall again have occasion to allude.^ 
 He says : " It is to be observed that municipal corporations in 
 England are broadly distinguished in many important respects 
 from towns in this and the other New England Slates. There is 
 no uniformity in the powers and duties of English municipal cor- 
 porations. They were not created and established under any 
 general public law, but the powers and duties of each munici- 
 pality depended upon its own individual grant or prescription. 
 Their corporate franchises were held of the crown by the tenure 
 of performing the conditions upon which they had been granted, 
 and were liable to forfeiture for breach of the conditions. They 
 indeed answered certain public purposes, as private corporations 
 do which have public duties to perform, and some of them exer- 
 cised political rights. But they are not like towns (with us) 
 general political and territorial divisions of the country, with 
 
 of the legislature. The legislature, on executed ; to inspect the conduct of all 
 
 the 23d day of February, 1822, passed subordinate officers ; to cause careless- 
 
 " An Act establishing the City of Bos- ness, negligence, and positive violation of 
 
 ton," commonly called "the city charter." the laws to be prosecuted and punished ; 
 
 The following is a brief outline of the to summon meetings of either or both 
 
 principal features of this charter, taken boards ; to communicate and recommend 
 
 from Quincy's Municipal History of Bos- measures for tlie improvement of tlie 
 
 ton, p. 41 : 1. The title of the corporation finances, the police, health, security, 
 
 to be,- " Tlie City of Boston." 2. The cleanliness, comfort, and ornament of the 
 
 control of all its concerns is vested in s city. 6. The mayor and aldermen are 
 
 mayor, a board of aldermen, consisting vested with the administration of the 
 
 of eight, and common council, of forty- police and executive power of the corpo- 
 
 eight inhabitants, to be called, when con- ration generally, and with specific enu- 
 
 joined " The City Council." 3. The city merated powers. 7. All other powers 
 
 to be divided into twelve wards. The belonging to the corporation are vested 
 
 mayor and aldermen and common council in the mayor, aldermen, and common 
 
 to be chosen annually, by ballot, by and council, to be exercised by concurrent 
 
 from inhabitants ; four of the common vote. Post, sec. 187, note, 
 
 council from and by those of each of the * Ante, ch. i. ; jtasi, ch. iii. 
 
 wards. 4. The city clerk to be chosen ^ Eastman v. Meredith, 86 N. H. 284, 
 
 by the city council. 6. The mayor to 290, 1868. And see also Hill v. Boston, 
 
 receive a salary. His duty, to be vigi- supra; post, sees. 82, 85, 37, 183. 
 lant and active in causing the laws to be 
 
40 MUKICIPAL eOBPOKATIONS. (CH. 11. 
 
 tmiform powers and duties, defined and varied, from time to tiine, 
 by general legislation. Towns (in New England) do not hold 
 their powers ordinarily under any grant from the government to 
 the individual corporation ; or hy virtue of arfy contract with the 
 government, or upon any condition, eipress or implied. They 
 give no assent in their corporate capacity to the laws which 
 impose their public duties or fix their territorial limits." And 
 referring to the case then before the court, he added : " In all 
 that immaterial to the present inquily, municipal corporatioHS in 
 England bear much less resemblance to towns- in this country 
 than to private corporations which are charged with the per- 
 formance of public duties ; and for these reasons the English 
 authorities on the subject are but remotely applicable to the 
 present case." 
 
 § 30. (12a) The distinctive character of the New England 
 towns, and particularly the limited nature of their powers, will 
 be further seen by a brief glance at the course of judicial decisions 
 with respect to their authority to make contracts and to obtain 
 revenue. Money can only be raised by them for the purposes 
 expressed in the statute, and for expenses incident to such pur- 
 poses. The power of the majority is Wisely limited by law to the 
 object and cases which are clearly provided for and defined by 
 statute.* 
 
 1 Stetson V. Kempton, 13 Mass. 2T2, towns to raise money is discussed at large 
 1816; Parsons v. Goshen, 11 Pick. 396, by £nrf/co«, J., in Minot ». West Roxbury, 
 1831. "This limitation," says Mr. Jus- 112 Mass. 1, 1873; s. c. 17 Am. Rep. 52; 
 tlce Wilde, with great truth, in the ease cited fiost, eh. xxii. Anthony v. Adams, 
 last cited, " uponthe power and authority 1 Met. (Mass.) 2B4, 286, 1840, per Shaw, 
 of towns to enter into contracts and stip- C J. ; quoted and followed in Vincent v. 
 ulations, is awise and salutary provision Nantuctet, 12 Cush. 10'5, 1853. See also 
 of law, not only as it protects the rights Norton v. Mansfield, 16 Mass. 48 ; "DiW n. 
 and interests of the minority of the legal Wareham, 7 Met. (Mass.) 438, 1844 (con- 
 voters, but as it may not unfrequently tract by the town, undertaking to transfer 
 prove beneficial to the interests of the the rigbt of taking oysters within its 
 majority, who may be hurried into rash limits)'. 
 
 and unprofitable speculations by some Whether towns in Massachusetts are 
 popular or delusive excitement, to the in- authorized by statute to make any con- 
 fluence of which even wise and consider- tracts which involve the payment of 
 ate men are sometimes lia:ble. A town money, unless the contracts are such that 
 in its corporate capacity will not be bound, a tax on the inliabifants maybe laid to 
 even by the express vote of the majority, raise the money does not seem to be set- 
 to the performance of contracts or other tied by express adjudication. Bancroft a. 
 legal duties, not coming within the scope Lynnfleld, 18 Pick. 566, 1836, pa- Shaw, 
 of the objects and purposes for which C.J. ; Tash w. Adams, 10 Cush. 252, 1852. 
 they are incorporated." The power of " The inhabitants of every town in 
 
§ 30.]. 
 
 CORPORATIONS DEFINED AND CLASSIFIED. 
 
 41 
 
 Thas a town, under a statute which restricts it to raising 
 money to provide for " the poor, for schools, for the support of 
 public worship, and other necessary charges," cannot raise money, 
 even in the time of war, and when the town is in immediate dan- 
 ger from the enemy, for the payment of additional wages to the 
 drafted and enlisted militia, and for other purposes of defence. 
 This is not a corporate duty, but the duty of the general govern- 
 ment.^ Nor can it appropriate money, contract for, or levy a tax 
 to aid in the construction of a load, which, by law, is to be made 
 
 tliat of Slaseachusetts. The Supreme 
 Court of Vermofit approves of the expo- 
 sition of the statute given by the Supreme 
 Court of Massauliusetts in Willard v. New- 
 buryport, 12 Pick. 230 ; Allen v. Tauntoff, 
 19 Pick. 485 ; Torry v. Milbury, 21 Pkk, 
 64; Spauldihg v. Lowell, 23 Pick. 71 j 
 Hardy v. Waltham,8 Met. 163, per Isham, 
 J., in Van Sicklen v. Burlington, 27 Verm. 
 (1 Wms.) 70. For discussion of powers 
 and duties of selectmen, and digest of pre- 
 vious decisions in New Hampshire, see 
 Carleton v. Bath, 2 Fost. (22 ^. H.) 559. 
 Have no general authority to bind the 
 town by contract. Andover «. GraftonV 
 7 N. H. 300. But are confined to such 
 acts as are necessary to the d'isehargfe of 
 their duties. Sanborn v. Deerfield, 2 N. H. 
 253. Cannot, ex-officio, adjust controver- 
 sies of suit«, or release a cause of action. 
 Carlton v. Bsth, 2 Foster (22 N. H.), 559. 
 May indemnify town-officers in proper 
 cases. Pike v. Middleton, 12 N. H. 278. 
 Post, sec. 147. But there is no promise 
 implied in law against atown to indemnify 
 selectmen in any case, for damages which 
 they have been compelled to pay, arising 
 out of the discharge of official duty. 
 Eaves v. Shattuck, 35 N. H. 189. Are 
 supposed to be liable to the corporation 
 tor gross neglect of official duty. San- 
 bom V, Deerfield, 2 N. H. 253, by Wood- 
 bury, J. 
 
 1 Stetson V. Kempton, 13 Mass. 272, 
 1816, where the phrase, necessary town 
 charges, is construed by Parker, G. J. ; 
 and see comment of Shaw, C. J., 12 Pick. 
 227, 230, and 23 Pick. 74 ; and of Dewey, 
 J., in Allen v. Taunton, 19 Pick. 485, 487 ;, 
 18 76. 566, 10 Gush. 67 ; of Clifford, J., in 
 Burrill v. Boston, 2 Clifford Cir. C. 590, 
 1867. 
 
 this state " — Maine — says Shepley, C. J., 
 in Hooper v. Emery, 14 Maine (2 Shep.), 
 375, 1837, " are declared to be a body pol- 
 itic and corporate by the statute : but these 
 corporations derive none of their powers 
 from, nor are any duties imposed upon 
 them by, the common law. They have been 
 denominated quasi corporations, and their 
 whole capacities, powers, and duties are 
 derived from legislative enactments." 
 See also Pittson v. Clark, 15 Maine, 460, 
 463; Augusta v. Leadbetter, 16 Maine, 
 45, 1839; Estes v. School Dist., 33 Maine, 
 170, 1871; Mitchell i>. Rockland, 46 
 Maine, 496, 604, 1858 ; Salem Mill Dam 
 V. Ropes, 6 Pick. 23, 32 ; Scliool Dist. etc. 
 W.Wood, 13 Mass. 193, 1816, per Parker, 
 C.-J. ; Mower v. Leicester, 9 Mass. 247, 
 250, 1812. Non-residents of municipal- 
 ities. Post, sec. 196. 
 
 Where the legislature has prescribed 
 the purposes for which money may be 
 raised by taxation, it cannot be raised for 
 other and distinct purposes ; nor when 
 it is raised and collected for authorized 
 and proper purposes can it be appropri- 
 ated to or expended upon other and dif- 
 ferent objects. This would be to break 
 down and defeat the limitation. Hence 
 towns cannot give away or distribute, per 
 capita or otherwise^ money collected by 
 taxation. Hooper v. Emery, 14 Maine 
 (2 Shep.), 375, explaining Ford v. Clough, 
 8 Green! . (Me.) 334; Davis v. Bath, 
 17 Maine, 141, 1840; Pease v. Cornish, 
 19 Maine (1 Appl.), 191, 1841; Stetson 
 V. Kempton, 13 Mass. 272 ; Dillin|;ham v. 
 Snow, 6 Mass. 547 ; Spaulding v. Lowell, 
 23 Pick. 71, 1830 ; Woodbury ». Hamil- 
 ton, 6 Pick. 101 ; Cooley <-. Granville, 
 10 Cush. 56. 
 
 The Vermmit statute respecting the 
 powers of towns is nearly a transcript of 
 
42 MUNICIPAL COKPOUATIONS. [CH. 11. 
 
 at the expense of the county, and not the town.^ A town may, it 
 is said, raise money to meet ordinary expenditures, such as the 
 payment of oflBcers, the support and defence of actions, the ex- 
 penses incident to discharging duties imposed by law, looking to 
 the safety and convenience of the citizens. Thus it can erect a 
 town or city hafl, or market house, but not a theatre, a circus, or 
 any place of mere amusement, nor even a statue or monument, 
 unless in populous and wealthy towns, as suitable ornaments to 
 public buildings or squares.^ So tqwns may provide for the sup- 
 port of a public clock, hay-scales, burying-ground, wells, reservoirs, 
 and many other like objects, which relate to the accommoda- 
 tion and convenience of the inhabitants, and which have been 
 placed under the municipal jurisdiction of towns by statute or by 
 usage.^ 
 
 § 31. (14) Although not styled such, each one of the United 
 States, in its organized political capacity, is in effect a public cor- 
 poration. Corporations, however, as the term is commonly used, 
 do not include states, but only derivative creations, owing their 
 existence and powers tO the state acting through its legislative 
 department. Like corporations, however, a state, as it can make 
 contracts and suffer wrongs, so it may, for this reason, and with- 
 out express provision, maintain, in its corporate name, actions to 
 enforce its rights and redress its injuries.* But a state is not 
 liable to be sued without its consent ; * although it is not unusual 
 for states, by special enactment, to authorize suits to be brought 
 against them, but, as the permission is voluntary, they may pre- 
 scribe the terms, and, unless it impairs the obligation of contracts, 
 
 1 Parsons ,,. Goshen, 11 Pick. 396, West Eoxbury, 112 Mass. 1, 1873; s. c. 
 
 1831 ; Anthony v. Adams, 1 Met. (Mass ) 17 Am. Bep. 52; post, ch. xxii. 
 284, 1840. ■» Delafield v. Illinois, 2 Hill (N. Y.), 
 
 a Stetson v. Kempton, 13 Mass. 272, 159, 162 ; 26 Wend. 192, 1841, affirming 
 
 1816, per Parker, C. J. ; Allen v. Taunton, s. c, 8 Paige, 531 ; Indiana v. Woram, 
 
 19 Pick. 485, 487, opinion by Dewey, J., as 6 Hill (N. Y.), 83, 1843. These cases 
 
 to power of towns in Massachusetts ; hold that states may sue as plaintiffin the 
 
 Spaulding v. Lowell, 23 Pick. 71, opinion state courts. State v. Delesdenier, 7 Texas, 
 
 of Shaw, C. J., on same subject. 76 ; People v. Assessors,' 1 Hill (N. Y.), 
 
 ' Willard v. Newburyport, 12 Pick. 620. The governor of a state, as the head 
 
 227,230,1831. General municipal powers of the executive department, is a corpo- 
 
 held to include power to erect a town-hall, ration sole, and bonds made payable to 
 
 Greeley v. People, 60 III. 19, 1871. But him may be enforced for the benefit of 
 
 does not include power to defray expenses those interested. Governor v. Allen, 
 
 of a committee to petition the legislature 8 Hump. (Tenn.) 176, 1847 ; Polk, Gor- 
 
 t9 destroy the existence of the town by ernor, v. Plummer, 2 76. 500. 
 annexing it to another town. Minot v. * Briscoe v. Bank, 11 Pet. 257, 321. 
 
§31.] 
 
 COKPOKATIONS DEFINED AND CLASSIFIED. 
 
 43 
 
 may withdraw the consent at pleasure.^ A devise to a state for 
 any object which it may properly aid or provide for is valid.^ 
 Extended consideration of the powers of the states, and of their 
 relation to the United States and to each other, is not within the 
 scope of the present work, which is limited strictly to municipal 
 corporations. 
 
 1 Beers v. Arkansas, 20 How. 527, 
 1857 ; Dodd t. Miller, 14 Ind. 433 ; Audi- 
 tor 0. Davies, 2 Pike (Ark.), 494 ; Ellis v. 
 State, 4 Ind. 1 ; State v. Trustees, 5 Ind. 
 77. The Supreme Court of the United 
 States has original jurisdiction in cases 
 in which a state shall be a party, as also 
 
 in suit between states. Kentucky ». Den- 
 nisnn, 24 How. 66 ; Wisconsin v. Duluth, 
 2 DiUon,C.C. 406,1872. The United States 
 Circuit Court has not. lb. 
 
 2 McDonough Will Case, 15. How. 867, 
 382, 1853 ; post, sec. 569. 
 
MUNICIPAL COaPOBATIONS. [CB, III. 
 
 CHAPTER HI. 
 
 ©RBATION, AISB SEVERAL KINDS OF MUNICIPAL COKPOBATIONS 
 IN ENGLAND AND IN THE UNITED STATES. 
 
 In England. — Difference between Regal and Parliamentary Cor' 
 porations. — Municipal Corporations Act of 1835. 
 
 § 32. (15) DoCTKiNB IN England. — In England, corpora- 
 tions can be created only in one of two ways : 1. by the king's 
 charter ; 2, by act of parliament. They exist there, however — 
 1, by the common law; 2, by prescription ; 8, by royal charter; 
 4, by authority of parliament. Corporations at common law are 
 those which derive their existence and powers from immemorial 
 usage, although they may have had their origin in an act of 
 parliament or royal grant, no longer discoverable. Those by 
 prescription presuppose a grant by charter or act of parlia- 
 ment, -which has been lost. Into corporations created by regal 
 or legislative grant may be resolved what have been styled 
 corporations by implication, which is, where a body, lawfully 
 constituted, cannot carry into effect its purposes without at- 
 tributing to it a corporate character. The franchise of being 
 a corporation, and the right to exercise corporate powers and 
 to enjoy corporate privileges, can be claimed in no other way 
 than as above stated. A legal sanction to the corporate char- 
 acter is, therefore, absolutely necessary, and is always im- 
 plied.i 
 
 The distinction between corporations deriving their existence 
 from the king's charter and those which derive their existence 
 from parliament is important. A royal charter is a written in- 
 strument, in the form of letters patent, under the great seal, 
 addressed to all the subjects of the realm, containing a grant by 
 
 1 Willc. 21 ; Glover, 23 ; Grant, 6, 7 ; 284, 290, 1858, per Perky, C. J. ; St. Louis 
 1 Kyd, 39 ; Angell & Am. sec. 69 ; Bro. v. Allen, 13 Mo. 400 ; Same v. Russell, 
 Corp. 65 ; Eastman v. Meredith, 36 N. H. 9 lb. 603. Post, sec. 84, note. 
 
§ 34.] CREATION OF PUBLIC COBPOEATIONS. 45 
 
 the crown to the persons named, of the franchises, powers^ and 
 privileges therein mentioned. A charter of incorporation, there- 
 fore, is the written instrument by which the king creates the 
 corporate body, names it, defines its objects, and confers its 
 powers. Unless restricted in the charter, all of the common law 
 incidents of a corporation attach to it, but no corpoi'ation can 
 pursue objects not warranted by its charter. The charter is the 
 organic act which gives to the corporation both its existence and 
 its peculiar character.'' 
 
 § 33. The kinff^s charter may confer upon the corporation it 
 institutes all the usual and ordinary powers of a corporate body, 
 but it cannot invest such a body with extraordinary powers, such 
 as proceeding in a manner different from the common law, or 
 punishing by forfeiture or imprisonment, or conferring an exclu- 
 sive right of trading. When the king grants clauses which are 
 illegal, they are void ; and if illegal and not confirmed by parlia- 
 ment, no length of time or usage will make such clauses valid. 
 But parliament, in the fulness of its powei', may grant to corpo- 
 rations which it erects, such powers, ordinary and extraordinary, 
 as it deems proper ; and it may, as it has often done, confirm 
 ■clauses in royal charters which were void, because beyond the 
 king's power to grant. 
 
 § 34. The king cannot incorporate a body of men without their 
 assent. Until his charter has been accepted, it is therefore inop- 
 erative.* When once accepted, the acceptance is irrevocable. 
 The acceptance must be by those to whom jt is addressed ; and 
 it is held that a valid acceptance may be made by a majority of 
 the grantees. The charter must be accepted in toto, or not at 
 aU, for there can be no partial acceptance without the assent of 
 the crown, which must be shown by matter of record. If the 
 corporation be a new one, acceptance of part of the charter is 
 taken as acceptance of all. Acceptance may be shown by user, 
 — by acting under it, as well as by the formal action of the cor- 
 
 1 Outline of municipal charter of the he gave were all given to existing corn- 
 Middle Ages. .4nte, see. 6. Charters de- munities, having a recognized and organ- 
 fined. Post, sec. 82. ized existence, and in the habit of acting 
 
 ■^ Acceptance of charter. Post, sees, as one body, through elections or agencies 
 
 44, 54, 05, ch. xxi. As acceptance vras or offices. Per Cnmpbell, J., in People t. 
 
 necessary to make the king's charter Bennett, 29 Mich. 451, 1874; s. c. 18 Am 
 
 operativej the municipal charters which Kep. 107. Post, sec. 183. 
 
46 MUNICIPAL CORPORATIONS. [CH. III. 
 
 porate body. ^ After acceptance the crown cannot resume the grant, 
 nor dissolve or destroy the corporation, without the consent of 
 the grantees or their successors. The crown, at common law, 
 can create a corporation for municipal government in any place 
 where there is not at the time an existing corporation of the 
 same kind, but there cannot be concurrently two corporations, 
 for the same place, having the same or similar powers of jurisdic- 
 tion. But such limitations upon the power of the crown do not 
 apply with respect to municipal c^porations created by parlia- 
 ment. Its power is, legally speaking, illimitable. It may create 
 and abolish and change at its pleasure, with or without the 
 assent of the people or corporation to be thereby affected. It 
 may change royal charters, but parliamentarj' corporations can- 
 not be affected, without the consent of parliament, by charters 
 granted by the crown. Except as to the extent of powers which 
 may be conferred, a parliamentary corporation is, at common law, 
 similar to that which is created by the crown.^ 
 
 §•35. (16) Same SUBJECT continued. — Prior to 1835 many 
 of the towns, boroughs, and cities of England were incorporated 
 in one of the ways mentioned ; that is to say, there were in them 
 bodies corporate, established for the local government thereof. 
 There was no uniformity in the constitution or powers of these 
 corporate bodies. The corporation proper was not the town or 
 place, but a corporate body constituted within it, with powers or 
 jurisdiction, more or less extensive, to govern the inhabitants. 
 These bodies were established at different times, and from differ- 
 ent motives. The first distinct recognition of a municipal corpo- 
 ration was in the 18th of Henry VI. (A. D. 1439), with reference 
 to Kingston-upon-Hull, which had an express charter of incorpora- 
 tion granted to it, for the first time, in that year. Charters had 
 previously been granted to it by different sovereigns, at various 
 times, giving it various privileges, but they did not incorporate 
 the place, nor was it incorporated until the charter of 18th Henry 
 VI., which is the first that uses terms of incorporation.^ Subse- 
 quently such corporations were erected from time to time, each 
 with its peculiar constitution, depending on the provisions of the 
 
 1 Authorities last cited. Respecting see Rutter v. Chapman, 8 M. & W. 1; 
 
 the authority of the crown to grant char- Reg. v. Boucher, 3 Q. B. 654 ; B. c, 2 G. 
 
 ters to incorporate towns, since the Gen- & D. 737. 
 
 eral Municipal Corporations Act of 1835, 2 Glover on Munic. Corp. 16. 
 
§ 36.] CREATION OF PUBLIC COEPOEATIO'nS. 47 
 
 charter or prescriptive usage. The constitution of the corpora- 
 tions was so various, and is so different from the American model, 
 that it requires care to acquire an accurate idea of it. For illus- 
 tration, we will take a simple form, viz. : where by charter or 
 prescription the corporation consists of the maj'or, aldermen, and 
 commonalty of a town. Here there are three ranks, classes, or 
 parts : 1, the mayor or head officer ; 2, the aldermen, the num- 
 ber of whom is definite, being fixed by the charter, or by pre- 
 scriptive usage ; 3, the commonalty, that is, the common freemen, 
 whose number is indefinite, and whose rights, in the course of 
 time, were largely usurped or destroyed. These tliree classes were 
 denominated the integral parts of the corporation, and no corpo- 
 ration was complete (except it be otherwise provided by the 
 charter) unless the mayor, or head officer, a majority of the defi- 
 nite class (that is, a majority of the aldermen), and some mem- 
 bers of the indefinite class, or commonalty, be in existence. 
 Hence, during a vacancy in the office of mayor, no valid corpo- 
 rate act can be done except to elect another, since without a 
 mayor the corporate body is incomplete. Hence, also, at every 
 corporate meeting it was essential, at common law, that there 
 should be present the mayor, or head officer, whose duty it was 
 to preside, a majority of each definite integral class, and some 
 members of each indefinite class, if there be more than one such 
 class. 
 
 § 36. In the course of time, as we have heretofore pointed out, • 
 great abuses had crept into these bodies, which parliament had 
 frequently been obliged to redress.' Complaints of grievances 
 were universal, and misrule, confusion, and internal disputes so 
 general that the municipal system of government fell into great 
 and deserved disrepute. As a measure of reform, the Municipal 
 Corporations Act of 5 and 6 Will. IV. ch. Ixxvi. was devised 
 and enacted.^ "I cordially concur," said the king, "in this 
 
 1 Ante. Introductory chapter, sec. 8 ; made a thorough exarAination of the con- 
 text approved. Lnehman w. Taxing Dist., dition of the various boroughs, and their 
 2 Lea (Tenn.), 425. report disclosed abuses and defects which 
 
 ^ The reformed House of Commons it seems marvellous that any spirited peo- 
 
 presented an address to William IV. re- pie so long endured. See ch. i. ante, 
 
 questing the appointment of a eommis- sec. 8. 
 
 sion to inquire into the state of the muni- The commission ascertained the ex- 
 
 cipal corporations in England and Wales, istence of two hundred and forty-six 
 
 The commissioD which was appointed corporations in England and Wales, ex- 
 
48 
 
 MUNICIPAL COKPORATIONS. 
 
 [CH. III. 
 
 important measure, which is calculated to allay discontent, to 
 promote peace and union, and to procure for those communities 
 
 ercising municipal functions. The popu- 
 lation of these corporate places exceeded 
 two millions of people. Some of these 
 corporations claimed to act under pre- 
 scriptive custom, but most of tliem under 
 several charters, forming a continued 
 series from a very early date, but gener- 
 ally under charters granted from the reign 
 of Edward I. down to the reign of George 
 IV. inclusive. The number of corporators 
 stated to be definite, in fifty boroughs, 
 ^varied in most cases from under ten to 
 thirty, and those indefinite, in one hun- 
 dred and sixty-two boroughs, varied from 
 twelve to five thousand, but usually 
 sveraged from fifty to two hundred 
 corporators. The titles to freedom, 
 or citizenship, generally comprehended 
 those arising from birth, servitude, mar- 
 riage, purchase, gift, or election. The 
 governing bodies were formed by the 
 close and corrupt system of self-election, in 
 a great majority of tlie municipalities. 
 The corporate ofScers, such as the mayor, 
 or other head of the corporation, the re- 
 corder — frequently unprofessional — and 
 the town clerk, were appointed by the 
 self-elected governing bo<ly from its own 
 immaculate conclave. Some of the muni- 
 cipalities possessed exclusive criminal ju- 
 risdiction, extending tn the trial of felonies 
 and all other offences, whereas many ap- 
 pear never to have had ajiy criminal ju- 
 risdiction. Several borontjks had civil 
 jurisdiction extending to the decision of 
 all actions ; some extending to tlie decis- 
 ion of personal and mixed actions; oiliers 
 to the decision of personal actions ; while 
 in a considerable number no civil juris- 
 diction appeared ever to have existed. 
 The properti), in some few borouglxs, was 
 trivial, but the revenue generally aver- 
 aged from 500/ to 1,000/ in each, while in 
 some the property exceeded 50,000/ per 
 annum. In a few towns corporate, the 
 accounts were printed for distribution 
 anil audited publicly; but in most cases, 
 the accounts were neither duly kept, nor 
 audited nor published, besides being in- 
 accurate and in a generally unsatisfactory 
 state. The annual income of these muni- 
 cipal corporations amounted to about 
 366,000/, and the expenditure to 377,000/, 
 
 while the debt in one hundred and tliirty- 
 tliree exceeded the sum of two millions 
 sterling. Throughout the course of the 
 investigation of the commissioners there 
 were perceptible the same complaints, -- 
 of magistrates ill-qualified by education 
 and habits for their situations, generally 
 partial, and sometimes corrupt ; of <!ourts, 
 i«iliich might be made the instruments of 
 much local advantage, falling into disuse 
 through defects of their original constitu- 
 tion and their recent maladministration ; 
 of juries improperly selected bj' reason of 
 notorious party bias ; of revenue misap- 
 plied ; of debt contracted and t)f property 
 alienated; of the absence of all accounts 
 and the denial of all accountability by 
 certain corporations ; of the insufficiency 
 of the police, the neglect of paving and 
 lighting, and the want of those municipal 
 accommodations for which the public 
 property committed in trust to the corpo- 
 ration wouM, if duly administered, be 
 amply sufficient to provide. Having given 
 a general view of the ordinary constitu- 
 tion of tlie various municipalities, the 
 commissioners next proceeded to specify 
 some of their defects. The most common 
 and most striking defect in the constitution 
 of the municipal corporations was, that 
 the corporate bodies existed independently of 
 the communities among which they were found. 
 The corporators looked upon themselves, 
 and were considered by the inhabitants, 
 as separate and exclusive bodies; they 
 had powers and privileges within the 
 towns and cities fronj which they were 
 named, but in most places, all identity of 
 interest between the corporation and the 
 inhabitants ^Hsappcared. That was the 
 case even where the corporation in- 
 cluded a large body of inhabitant free- 
 men. It aptieared in a more striking de- 
 gree as the powers of the corporation had 
 been restricted to smaller numbers of the 
 resident population, and still more glar- 
 ingly when the local privileges had been 
 conferred on non-resident freemen, to the 
 exclusion of the inhabitants to whom 
 they rightfully ought to belong. Tlie 
 privilege of electing members of parliament 
 being that which, before the passing of 
 the reform act, conferred upon the self- 
 
§36.] 
 
 CREATION OF PUBUC CORPORATIONS. 
 
 49 
 
 the advantages of responsible government." This act organizes 
 all of the municipal corporations of England and Wales upon a 
 
 elected goTerning bodies of close corpo- 
 rate towns their principal importance, and 
 tlie rewards for political services which 
 the patron was accustomed to distribute 
 among them, caused this function to be 
 considered, in many places, as the sole 
 object of their institution. The power 
 so monopolized and employed in a mode 
 unsuitable to the altered circumstances 
 of tJie times, led to various abuses of the 
 system. The custom of keeping the 
 number of corporators as low as possible 
 may be referred to the wish for preserv- 
 ing the parliamentary franchise, rather 
 than to the desire of monopolizing the 
 municipal authority, which had been 
 coveted only as a means of securing the 
 other and more highly prized privilege, 
 A great number of corporations were pre- 
 served solely as political engines, and the 
 towns to which they belonged derived no 
 benefit, but often much injury, from their 
 existence. To maintain the political aS' 
 cendency of a party, or the political influ- 
 ence of a family, was the one end and 
 object for which the powers entrusted to 
 a numerous class of these bodies have 
 been exercised. This object was system- 
 atically pursued in the admission of free- 
 men, resident or non-resident; in their 
 election of municipal functionaries for the 
 council or the magistracy ; in the appoint- 
 ment of subordinate officers and the local 
 police ; in the administration of charities 
 entrusted to the municipal authorities ; 
 in the expenditure of the corporate reve- 
 nue, and in the management of the cor- 
 porate property. The mostflagrant abuses 
 arose from this perversion of municipal 
 privileges to political objects. Thus the 
 inhabitants had to complain, not only that 
 the election of their magistrates and other 
 municipal functionaries was made by an 
 inferior class of themselves, or by per- 
 sons unconnected with the town, but also 
 of the disgraceful practices by which the 
 magisterial office was frequently ob- 
 tained; while those who, by character, 
 residence, and property, were best quali- 
 fied to direct and control its municipal 
 affairs, were excluded from any share in 
 the elections or management. The ex- 
 clusive and party spirit belonging to the 
 VOL. I. 4 
 
 whole corporate body appeared in a still 
 more marked manner in the councils by 
 which, in most cases, it was governed. 
 These councils were usually self-elected, 
 and held their offices for life. They 
 were commonly of one political party, 
 and their proceedings were mainly di- 
 rected to secure and perpetuate the 
 ascendancy of the party to which they 
 belonged. Individuals of adverse politi- 
 cal opinions were, in most cases, system- 
 atically excluded from the governing 
 body. These councils, which embodied 
 the opinions of a single party, were en- 
 trusted with the nomination of magis- 
 trates, of the civil and criminal judges, 
 often of the superintendents of police, an4 
 were, or ought to have been, the leaders 
 in every measure that concerned the in- 
 terests and prosperity of the town. So 
 far from being the representatives either of 
 the population or of the property of the 
 town, they did not represent even the 
 privileged class of freemen ; and being 
 elected for life, their proceedings were 
 unchecked by any feeling of responsibil- 
 ity. The commissioners reported that 
 there prevailed amongst the inhabitants 
 of a great majority of the incorporated 
 towns a general and a just dissatisfaction 
 with their municipal councils, whose 
 powers were subject to no proper control, 
 whose acts and whose proceedings, being 
 secret, were unchecked by the influence 
 of public opinion ; a distrust of the muni- 
 cipal magistracy, tainting with suspicion 
 the local administration of justice, and 
 often accompanied with contempt of the 
 persons by whom the law was adminis- 
 tered ; a discontent under the burdens of 
 local taxation, while revenues that ought 
 to be applied for the public advantage 
 were diverted from their legitimate use, 
 and sometimes wastefuUy bestowed for 
 the benefit of individuals, sometimes 
 squandered for purposes injurious to the 
 character and morals of the people. The 
 commissioners therefore felt it their duty 
 to represent to his Majesty that the 
 municipal corporations of England and 
 Wales neither possess nor deserve the con- 
 fidence or respect of his Majesty's sub- 
 jects, and that a thorough reform must 
 
50 MUNICIPAL CORPORATIONS. [CH. III. 
 
 uniform model. It does not altogether destroy their previously 
 existing lawful corporate powers, but it does sweep away all 
 laws, statutes, charters, and usages inconsistent with or contrary 
 to its provisions. It defines who shall be burgesses or citizens, 
 making the right essentially depend upon occupancy of houses 
 or shops within the borough, and the payment of taxes for the 
 relief of the poor. These burgesses or citizens elect, from time 
 to time, a fixed number of proper persons to be councillors, and 
 the council (composed of the may*-, aldermen, and councillors) 
 elect, from qualified persons, the aldermen, and also the mayor 
 and the ministerial and inferior corporate officers. " Tlie coun- 
 cil " is the governing body of the corporation, and its most impor- 
 tant powers are defined by various acts of parliament. It will 
 thus be perceived that the original power is in the burgesses or 
 citizens, that the act adopts the representative system, and pro- 
 ceeds upon the idea that a substantial interest in the incor- 
 porated place, which is made necessary in order to be a burgess 
 or citizen, will induce care in the selection of councillors, and 
 that frequent elections will prove the most effectual check on 
 those entrusted with the administration of the municipal author- 
 ity, which is carefully limited and defined. 
 
 The act of 1835, with some amendments, constitutes the body 
 of the existing English municipal corporations system ; its leading 
 provisions are so important to be understood in the study and 
 application of the English cases to questions arising in this coun- 
 try, and contain so much of interest to the lawyer, the legislator, 
 and the municipal inquirer, that they are given or referred to in 
 the note.^ 
 
 be effected before they can become what and remain well and quietly governed j 
 
 they ought to be, — useful and efficient in- and it is expedient that the charters by 
 
 Btruments of local government. Glover's which said bodies corporate were consti- 
 
 Historical Summary of the Corporate tuted, should be altered in the manner 
 
 System of Great Britian and Ireland, hereinafter mentioned ; be it therefore 
 
 pp. 88 to 45. The result was the munici- enacted, that so much of all laws, statutes, 
 
 pal Corporations Act of 5 and 6 Will, and usages, and so much of all royal and 
 
 IV. ch. Ixxvi. See ch. 1, ante, sec. 8. other charters, now in force, relating to 
 
 1 Municipal Corporations Act ofb and 6 the several boroughs named in schedules 
 
 Will. IV. ch. Ixxvi, enacted September 9, (A and B) annexed, as are inconsistent 
 
 1835. — Name, etc. This act commences with, or contrary to, this act, shall be, and 
 
 by reciting, that " whereas, divers bodies the same are hereby, repealed and an- 
 
 corporate at sundry times have been con- nulled" (sec. 1), with the reservation of 
 
 stituted within the cities, towns, and certain rights, beneficial exemptions, and 
 
 boroughs of England and Wales, to the franchises to the freemen or citizens, 
 
 intent that the same might forever be (Sees. 2-5.) These schedules contain an 
 
§37.] 
 
 CREATION OF PUBLIC COEPOEATIONS. 
 
 51 
 
 In the United States. 
 
 § 37.(17) The proposition which lies at the foundation of the 
 law of corporations of this country is, that here, all corporations, 
 
 alphabetical list of all the incorporated 
 boroughs, with the number of wards, 
 number of aldermen, and number of coun- 
 cillors, and style of the corporate body 
 in each ; thus : " Bath, — Seven wards, 
 fourteen aldermen, forty-two councillors. 
 Corporate name — " Mayor, Aldermen, and 
 Citizens of the City of Bath." If it be a 
 borough instead of a city, the word " Bur- 
 gesses " is used instead of " Citizens." 
 The act provides that the body corporate 
 in each of said places "shall take and 
 bear the name of the Mayor, Aldermen, 
 and Burgesses [or Citizens, in case of a 
 city] of such borough, and by that name 
 shall have perpetual succession, and shall 
 be capable in law, bi/ the council hereinafter 
 mentioned of such borough, to do," etc. 
 (Sec. 6.) 
 
 Membeeship. — Before the passage of 
 the act under consideration, the qualificar 
 tions for members or officers of municipal 
 corporations depended upon the charter, 
 usage, or by-laws of the particular cor- 
 poration, the usual qualifications being 
 that the person claiming to be admitted 
 to the ireedom of the corporate town 
 should be the son of a freeman, or should 
 have served an apprenticeship to a free- 
 man, or (in some instances) married his 
 daughter, or acquired the privilege by 
 gift or purchase ; but this act provides 
 that hereafter " no person shall be elected, 
 made, or admitted a burgess or freeman 
 of any borough by gift or purchase." 
 (Sec. 3.) It Axes the qualification of bur- 
 gesses or citizens, thus : " Every male per- 
 son, of full age, who shall have occupied 
 any house, warehouse, counting-house, 
 or shop, within any borough " for three 
 years, " and during the time of such occu- 
 pation been an inhabitant householder 
 within the borough, or within seven miles 
 of the borough, shall, if duly enrolled, 
 be a burgess of such borough and a member of 
 the body corporate of the mayor, aldermen, 
 and burgesses of such borough, provided he 
 shall have been rated in respect to the 
 premises so occupied by him to all rates 
 made for the relief of the poor within the 
 
 parish." (Sec. 9.) Such resident occupiers 
 and taxpayers, only, are members of the 
 corporate body of the place ; all the otlier 
 inhabitants are no part of the municipal 
 corporation, though subject to its gov- 
 ernment. 
 
 COUNCILLORB, HOW CHOSEN, etc. — 
 
 Upon the first day of November, in every 
 j"ear, the burgesses so enrolled in every 
 borough shall openly assemble, and elect 
 from the persons qualified to be councillors 
 [who must have the qualifications of a 
 burgess, and also increased pecuniary 
 and rating qualifications] the councillors 
 of the borough" (sec. 40), of whom one- 
 third part go out of office annually. The 
 elections are held before the mayor and 
 assessors, and the mode of voting (which 
 is exactly the opposite of the ballot in 
 America) is by delivering to the officers 
 of election a voting-paper containing the 
 name and abode of the person voted for, 
 and signed with the name and abode of 
 the voter. It is thus seen that the bur- 
 gesses elect the councillors, whose quali- 
 fications are fixed by the statute, and 
 whose number in each incorporated place 
 is definite. 
 
 Aldermen, how chosen. — On the 
 ninth day of November, in every third 
 succeeding year, the council for the time 
 being are directed to elect, "from the coun- 
 cillors, or from persons qualified to be coun- 
 cillors, the aldermen of the borough," who 
 are one third in number of the councillors. 
 (Sec. 26.) The manner of election is pre- 
 scribed, namely, by every member of the 
 council delivering to the mayor or chair- 
 man a voting-paper signed by the mem- 
 ber voting, which the mayor or chairman 
 is directed openly to read. (Act. 7 Will. 
 IV. and 1 Vict. ch. Ixxviii. sec. 14; 16 
 and 17 Vict. ch. Ixxix. sec. 13.) 
 
 Mayor, how chosen. — At the meet- 
 ing ot the council, to be held on the ninth 
 day of November, each year, the council 
 are directed to elect, out of the aldermen or 
 councillors, a fit person to be the mayor, 
 who shall continue in office for one year 
 (sec. 49), and until his successor shall 
 
52 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. Iff. 
 
 public and private, exist and can exist only by virtue of express 
 legislative enactment, creating, or authorizing the creation of the 
 corporate body. Legislative sanction is with us absolutely essen- 
 tial to lawful corporate existence. That a corporation may here 
 exist by prescription, and its existence be established by long and 
 undisputed user of corporate powers may (as the eases hereafter 
 referred to will show) be true, but this prescription and user 
 suppose a legislative grant. Instances of prescriptive eorporar 
 tions, with us, are rare and exceptional. But corporations, pub- 
 lic and private, by virtue of direct legislative authorization, are 
 being created in such vast numbers as to constitute one of the 
 most marked and important features of the present time. Speak- 
 ing of " corporations by statute," in England, Mr. Willcock says 
 that " the legislature has not often exercised the power of cre- 
 ating municipal corporations, because it has been esteemed a 
 flower of the prerogative." ^ This has reference to a period ante- 
 
 have accepted and qualified, (6 and 7 
 Will. IV. oh. cv. sec. 4.) 
 
 Who compose the codngil, ete.r- 
 The mayor, the aldermen, and the coun- 
 cillors, for the time being, constitute 
 "the fxiuncil" of the borough. (S,ec. 25.) 
 The council, as we have seen, elect the 
 n;ayor and the aldermen, and it also 
 appoints the clerk, treasurer, and other 
 corporate officers. The corporate body 
 acts by and through the council, who 
 liave the authority of the old corporations, 
 except as modified. Provision Is made 
 for the stated and special meetings of the 
 council ; the notice prescribed, the quorum 
 fixed, the presiding officer defined, ^tc. 
 Power is given to make by-laws, and the 
 ppwers of the council defined, and provision 
 is made for powers vested in trustees, un- 
 der sundry local acts of parliament, for 
 paving, lighting, supplying with water or 
 gas, cleansing, watching, regulating, or 
 improving, or for providing or maintain- 
 ing a cemetery or market in the boroughs 
 being transferred to the body corporate 
 of the borough. (Sec. 75, 20 and 21 Vict, 
 ch. 1.) By other acts of parliament the 
 houndaries of boroughs are fixed (6 and 
 7 Will. IV. ch.ciii. 1836); the"adminis. 
 tration of the borough fund" regulated 
 {lb. ch. civ.); "the administration, of 
 justice " provided for {lb. ch. cv. ; 13 and 
 14 Vict. ch. xci.) ; borough rates regu- 
 Jated (7 Will. IV. and 1 Vict. ch. Ixxxi. 
 
 1837; 2 and 3 Vict. ch. zxviii. ; 3 and 4 
 Vict. ch. xxviii. ; 4 and 5 Vict. ch. xlviii. ; 
 5 and 6 Vict. ch. xcviii.) ; power to sell 
 and mortgage property and to charge 
 rates 'given (6 and 6 Vict. ch. xcviii. ; 23 
 and 24 Vict, ch, xvi.) ; provision made 
 as to maintaining bridges (13 and 14 Vict, 
 ch. Iziv. 1850) ; to promote public libraries 
 (18 and 19 Vict. ch. Lxx. 1856; 29 and 30 
 Vict. ch. zciv.) ; in relation to the police 
 19 and 20 Vict. ch. Ixix. (27 and 28 Vict, 
 ch. Ixiv; 28 and 29 Vict. ch. xxxv.) ; the 
 management of highways, by enabling 
 councils to adopt parish roads and apply 
 their funds to their repair (25 and 26 Vict, 
 ch. Ixi ) ; for safe keeping of petroleum (25 
 and 26 Vict. ch.Ixvi.) ; for the protection of 
 gardens and ornamental grounds (26 and 
 27 Vict. ch. xiii.) ; in relation to prisons 
 (28 and 29 Vict. ch. exrvi. known as " The 
 Prisons Act, 1865 " ; 29 and 30 Vict. ch. c). 
 A variety of other statutes, of less import- 
 ance, in relation to municipal corporation^, 
 have been passed since the general act of 
 1836, some amendatory of it and some mak- 
 ing new and additional provisions. By the 
 famous Disraeli reform bill of 1867, the 
 right to vote for a member, or members, 
 to serve in parliament for boroughs was 
 extended to large numbers or classes of 
 persons who did not before possess the 
 franchise. New American Cydopgedia, 
 1868, p. 327. Ante, ch. 1. sec. 8. 
 1 Willc. on Munic. Corp. 25. 
 
§ 38.] CREATION OF PtJBLIC eORPORATIONS. 63 
 
 Jior to the farnous Municipal Corporations Act of September &, 
 1835 (5 and 6 Will. IV. eh. Ixxvi.), by which parliament under- 
 took the regulation of this important subject.^ 
 
 § 37 A. The existing law of corporations is essentially of mod- 
 ern growth^ and has yet largely to be developed and settled. Hav- 
 ing occasion to refer to this subject in a recent case in Illinois, a 
 distinguished judge said : " Formerly but few private corporations 
 were created, and these cut so small a comparative figure in the 
 destinies of states, that they attracted but little attention on the 
 pait of law-makers, and were but little studied by the courts. 
 Even in England, until a very recent period, both public aild 
 private corporations were created by royal prerogative, withottt 
 the intervention of parliament, and were invested with such 
 powers and privileges as favorites might ask, or the public good 
 be supposed to require. But even then such corporations were 
 rare. Now they have become among the greatest means of sfat^ 
 and national prosperity. It is probably true that more corpora- 
 tions were created by the legislature of Illinois, at its last session, 
 than existed in the whole civilized world at the commencement 
 of the present century." This state of things has necessarily led 
 to a more careful study of the whole subject, both by legislators 
 and the courts.^ Not only are commercial or business corpora- 
 tions being thus multiplied, but municipal corporations, in all of 
 &e states, are constantly created and universally adopted as part 
 of the ordinary machinery of government, so that it is rare to 
 find a town or city of any considerable size not incorporated and 
 invested with the power of local government. There are in the 
 tJnited States many hundreds of incorporated plaees acting under 
 special charters granted by the states or general incorporation 
 acts passed by them. 
 
 § 38. (18) The power of CongHss to create or authorize the 
 creation of corporations, public or privatOj whenever these become 
 an appropriate means of exercising any of the constitutional 
 powers of the general government, or of facilitating its lawful 
 operations in the States or Territories, must be taken to be cort- 
 
 1 Ante, Sees. 8, 86. gervalalong of Rogers, J., in Bushnell ». 
 
 » Par Caton, J., Railroad Co.t). Dalby, Insurance Co., 15 Serg. & Rawle (Pa.h 
 19 lU. 868, 1867. See, alto, similar ob- 176, 177. 
 
54 MUNICIPAL CORPOKATIONS. [OH. Wl. 
 
 clusively settled by the Supreme Court.^ This power has been 
 exercised on important occasions, such as incorporating the banks 
 of the United States, the national banks, and the Pacific Railroad 
 Company ; and, within the above limitations, it is no longer dis- 
 puted. Congress habitually passes acts for the organization of 
 Territories and territorial governments, which are, in substance 
 and effect, municipal corporations on a large scale and of a pe- 
 culiar character ; but it is not within the power of Congress to 
 establish ordinary municipal corporaitions within the limits of the 
 States, and it has never attempted to exercise it. 
 
 In a territorial organic act, a provision that the power of the 
 territorial legislature " shall extend to all rightful subjects of legis- 
 lation," authorizes the legislature to create municipal corporations, 
 and to invest them with the power to make ordinances, and to 
 provide corporation courts in which to enforce them. And such 
 courts may be provided, although by the organic act it is declared 
 that the judicial power of the Territory shall be vested in a 
 supreme court, district courts, probate courts, and justices of the 
 peace .2 
 
 § 39. (19) In this country, until comparatively a recent period, 
 municipal corporations have been created singly, each with its special 
 
 1 McCuUough W.Maryland, 4 Wheat, w. City of Central, 1 Col. 323, 1872. Under 
 316 ; Osborn v. Bank of U. S., 9 lb. the same organic act it was decided that 
 788 ; Thompson v. Pacific Railroad Co., the legislative assembly had no power to 
 9 Wall. 679 ; Pacific Railroad v. Lincoln confer upon a justice of the peace a de- 
 Co., 1 Dillon C. C. 814, 1871. nomination not warranted by the organic 
 
 '^ State 1). Young, 3 Kan. 445, 1866 ; act ; and, in so far as a municipal char- 
 
 Burnes v. Atchison, 2 lb. 454 ; S. P. Red- ter undertook to confer upon a justice 
 
 dick V. Amelia, 1 Mo. 5, 1821. In this of the peace exercising jurisdiction under 
 
 case the objection made was, that such a the ordinances of the city the name of 
 
 legislature was not sovereign, and that " police magistrate " it is void. lb. 
 
 nothing short of sovereign power could It is now provided by act of Congress, 
 
 create a corporation. The answer given " That the legislative assemblies of the 
 
 was, that Congress could give, and had several Territories of the United States 
 
 given, the power to legislate on such shall not, after the passage of this act, 
 
 subjects. That a territorial legislature, grant private charters or especial privi- 
 
 vested with general legislative powers, leges, but they may, by general incorpor- 
 
 may create a corporation, which is not ation acts, permit persons to associate 
 
 affected by the subsequent adoption of a themselves together as bodies corporate 
 
 state constitution, was held in Vincennes for mining, manufacturing, and other in- 
 
 University v. Indiana, 14 How. 268, 1852. dustrial pursuits." Act of March 2, 1867, 
 
 See, also, Vance w. Bank, IBlaekf. (Ind.) 14 Stats, at Large, 426, sec. 1; Rev. 
 
 80; Myers ». Bank, 20 Ohio, 283. Under Stats, of U. S. sec. 1889; In Seattle 
 
 the territorial organic act of Colorado, the v. Tyler, Wash. Terrritory, 1877, this 
 
 legislative assembly has power to estab- section was held by Ch. J. Lewis of 
 
 lish a municipal corporation, but the Washington Territory to extend to and 
 
 question of such establishment by special embrace municipal corporations within its 
 
 or general law is not discussed. Dietz prohibition. 
 
§ 39.] CREATION OF PUBLIC COEPORA.TIONS. 55 
 
 or separate charter passed by the legislature of the State. These 
 charters, in all of the States, were framed after the same general 
 model ; but in the extent of the special pcTwers conferred, and in 
 the peculiar constitution of the governing body, and the like, 
 there was great variety. It will be useful to rwtice the outline 
 features of one of these charters, since it constitutes the organic act 
 of the corporation, and bestows upon it its legal character. Such 
 a charter usually sets out with an incorporating clause declaring 
 " that the inhabitants of the town of (naming it), or city of (naming 
 it), are hereby constituted a body politic and corporate by the 
 
 name and style of the 'town of ,' or 'city of ,' and by 
 
 that name shall have perpetual succession, may use a common 
 seal, sue and be sued, purchase, hold, and sell property," etc. 
 The charter then defines the territorial boundaries of the town or 
 city thus incorporated. After that follow provisions relating to 
 the governing body of the corporation, usually styled the town 
 or city council. This is generally composed of one body, though 
 in some instances of two ; the members being called aldermen, 
 councilmen, or trustees. The corporation is divided into wards, 
 and each ward elects one or more aldermen, the number being 
 specified and definite.^ The qualifloations of the voters are fixed 
 by the charter, which are usually that the voter shall be a male 
 citizen of the United States and of the State, be of age, and a 
 resident, for a specified time, within the limits of the corporation. 
 The mode of holding elections is specified ; and the power is often 
 given to the council to canvass returns, and to settle disputed 
 elections to corporate offices. Provision is made for the election 
 of a mayor, or other chief executive officer of the corporation, and 
 his duties defined. The charter contains a minute and detailed 
 enumeration of the powers of the city council, which are usually 
 numerous ; the most important of which are, the authority 
 to create debts (sometimes restricted) ; to levy and collect taxes 
 within the corporation, for corporate puiposes ; to make local im- 
 provements and assessments to pay therefor ; to appoint corporate 
 officers ; to enact ordinances to preserve the health of the inhabi- 
 tants, to prevent and abate nuisances, to prevent fires, to establish 
 and regulate markets, to regulate and license given occupations, 
 
 ' Constitutional provisions to secure in some of which a voter should have 
 
 equality of representation lield applicable several times as much power as a voter 
 
 to municipal corporations and to disable in another. People i>. Ganaday, 78 Nor. 
 
 the legislature to divide a city into wards, Car. 198, 1876, s. c. 21 Am. Bep. 466. 
 
56 MUNICIPAL COEPOEATIONS. [OH. HI. 
 
 ta establish S, police forced, to punish offenders against ordinances ; 
 ta open and gtade and improTe streets; to hold eorporatios 
 G6urts, etc., etc. 
 
 When it is remembered that the charter of such a eotporation it 
 its constitution, and gives it all the powers it possesses' (unless 
 other statutes are applicable to it), its careful study, in any given 
 ease, is indispensable to an understanding of the na^ture of the 
 powers it confers, the duties it enjoins, and liabilities it creates.> 
 The construction of its various provisions, and the determination 
 of the relation which these bear to the general statutes of the 
 State ; how far the charter controls, or how far it is controlled 
 by other legislation, are among the most difficult problems which 
 pei'plex the lawyer and the judge. The study of a question of 
 corporation law begins with the charter ; but it must oftentimes 
 be pursued into the general statutes and legislative policy of the 
 State, and after this into the broad tield of general jurisprudence^ 
 
 § 40. In public corporations, as cities, towns, parishes, school' 
 districts, membership is constituted by living within certain 
 limits, whatever may be the desire of the individual thus residing 
 or that of the municipal or public body. In private corporations, 
 on thfr 6ther hand, especialty those organized for pecuniary profit, 
 membership is constituted by subscribing to or receiving, with 
 the assent of the corporation when that is necessary, transfers 
 of its stock.^ It is the citizens or inhabitants of a cit}', not the 
 common council or local legislature. Who constitute the " corpor- 
 ation " of the city. The officers of the council attd other charter 
 o^ffieers are the agents or officers of the corporation.^ 
 
 § 41. (20) Within a period comparatively recent, the legisla- 
 tures of a number of the States, following the example of the 
 English Municipal Corporations Act of 6 and 6 Will. IV. ch. 
 Ixxvi. heretofore mentioned, have passed general acts respect- 
 ing municipal corporations. These acts abolish all special 
 charters, or all with enumerated exceptions, and enact general 
 provisions for the incorporation, regulation, and government 
 
 1 OTereeers of Poor, etc. ». Sears, 22 * Lowber v. Mayor, etc. of N. Y., 5 
 
 Pick. 122, 130, per Shaw, C. J. ; Oakes v. Abbott's Pr. R. 325; Clarkfr ». Bochester, 
 
 Hill, 10 Pick. 833, 346, per Morton, J.; 24 Barb. 446, 185'7. 
 arOe, sec. 9, and notes. 
 
§41] 
 
 CREATIOS OP PtBHC COKPOEATIONS. 
 
 57 
 
 of maaieipal corporations. Th« usual scheme is to gtade cor- 
 porations into classes, dicoording to their size, as into Cities of the 
 First Class, Cities of the Second Class, and Towns, or Villages, 
 and to bestow upon each class such powers as the legislature 
 deems expedient; biit the pOwers and mode off organization of 
 corporations of each class are uniform.^ General incorporation 
 
 1 Oh!o.^By tlie Towns', Cities', and 
 Villages' Act of May 3, 1862 (Swan's 
 Stat. 964), all corporations existing for 
 the purposes of municipal government 
 are thereby organized into cities and iV 
 corporated villages. (Sec. 1.) In respect 
 to the exercise of certain corporate pow- 
 ers, municipal corporations are divided 
 into classes, thus : 1. Cities of the flrstclass', 
 which comprise all cities having a popu- 
 lation exceeding twenty thousand inhabi- 
 tants ; 2. Cities of the second class, which 
 comprise all cities not embraced in the 
 first elass ; 3. Incorporated villages ; and 
 4. Incorporated villages for special pur- 
 poses, lb. sec. 39 et seq. These are " de^ 
 clared to be bodies politic and corporate, 
 under the name and style of the city of 
 
 , or the incorporated Village of >, 
 
 as the case may be ; cai)able to sue and 
 be sued, to contract and be contracted 
 with, to acquire, hold, and possess prop- 
 erty, real and personal, to have a com- 
 mon seal, and to exercise such other 
 powers, and to have such other privileges, 
 as are incident to municipal Corporations 
 of like character or degree, not inconsist' 
 ent with this act or the general laws of 
 the state." lb. sec. 18. These powers 
 and privileges are then specified with 
 gi^eat minuteness, twenty sections of the 
 act being devoted to this purpose. In- 
 corporated villages are governed by one 
 mayor, one recorder, and five trustees, 
 elected annually ; the mayor, recorder, 
 and trustees constituting the village coun- 
 cil, any five of whom make a quorum. lb. 
 sec. 43. The corporate authority of cities 
 is vested in the mayor, one board of 
 trustees (two from each ward), who 
 conip6se thter city council, together with 
 such officers as are mentioned in the act, 
 or as may be created under its authority. 
 lb. sec. 62 et feq. 
 
 " The governing all cities and villages 
 under one general law was a new expefi- 
 ittent, supposed to be requii'ed by the 
 
 present constitution. It was to be ex- 
 pected that, in the Working of the experi^ 
 ment, omissiong, if not mistakes, would 
 be discovered, to be corrected by addi- 
 tional l^islatioD. It will be a work of 
 care and time to perfect an orderly and 
 harmonious system." Per Gholsoh, J., in 
 Thomas v. Ashland, 12 Ohio St. 124, 130, 
 1861. Infra, sec. 46. 
 
 Illinois. — The General Assembly has 
 the power to delegate legislative aathoi*- 
 ity incident to municipal government to 
 cities, but this can only be done by gen- 
 eral law, under the constitution of 1870; 
 When, however, it is done by such law, 
 the constitutional mandate is fully com- 
 plied with, and the ordinances to be 
 adopted by difierent municipalities, Under 
 the power so conferred, may be as variant 
 in their terms as the varying municipal 
 necessities or sense of pul>lic policy in 
 those who exercise the legislative author- 
 ity may require. Covington v. East St. 
 Louis, 78 III. 548, 1876. 
 
 Iowa. — The Ohio act is, in substance, 
 adopted in Iowa. Revision 1860, ch. li. 
 But it does not apply to cities having 
 special charters, unless adopted hy them. 
 Burke v. Jeffries, 20 Iowa, 146. 
 
 In Tennessee (Acts 1849, ch. xvii) pro- 
 vision is made by general act for the in- 
 corporation of towns, cities, and villages. 
 The constitution of Tennessee declares 
 that "the legislature shall have power 
 to grant charters of incorporaltion as they 
 dnay deem expedient for the pul!)lic gooA." 
 Art. XI. sec. 7. In the State v. Arm- 
 strong, 3 Sneed (Tenn.), 634, it was held 
 that the act of 1856, by wlricli full power 
 to create corporations, and determine the 
 extent of their powers, was given to the 
 Circuit Courts, was unconstitutional, on 
 the ground that the legislature cOtild not 
 delegate its authority to the courts. But 
 in the Mayor, etc. v. Shelton, I Head, 
 24, 1868, it was held that thef act of 1849 
 — which was a general statdte for the 
 
58 
 
 MUNICIPAL CORPORATIONS. 
 
 [cH. m. 
 
 acts, rather than special charters, would seem clearly to be the 
 best method of creating and organizing municipal corporations. 
 
 incorporation of towns and cities, and by 
 which a petition was to be presented by 
 the inhabitants of a place proposing to 
 organize under the act to the County 
 Court, which had power simply to record 
 the petition and designate the boundaries 
 of the corporation — was not in conflict 
 with the constitution, as the statute, and 
 not the court, determined the extent and 
 nature of the powers of the corporation. 
 
 Missouri. — A general act for the in- 
 corporation of towns was passed in Mis- 
 souri in 1845, and it was held not uncon- 
 stitutional by reason of certain duties 
 which it imposes on the County Court 
 with reference to organization of towns 
 under the act, as tliese duties are not 
 legislative but judicial, and the law itself, 
 and not the court, declares the powers of 
 which the corporation shall be possessed. 
 Kayser v. Trustees, etc., 16 Mo. 88, 1852. 
 Construction of statute. Woods ». Henry, 
 55 Mo. 560 ; State v. McBeynolds, 61 Mo. 
 203, 1876. The case of Kayser v. Trus- 
 tees, etc., supra, is thought by Campbell, 
 J., to conflict with the general course of 
 decision, since such duties are in their 
 nature administrative or political, rather 
 than judicial. People v. Bennett, 29 
 Mich. 451, s. c. 18 Am. Rep. 107. See 
 Damodhar Gordhani v. Deoran Kanji, 
 L. R. 1. App. Div. 332. 
 
 Indiana. — The general law of 1857, 
 for the incorporation of cities, is not un- 
 constitutional for want of uniformiti/ in 
 the mode of their organization. Lafayette 
 V. Jenners, 10 Ind. 70, 80, 1857. See also 
 Welker v. Potter, 18 Ohio St. 85. 
 
 Pennsylvania. — A general act was 
 passed in 1851, designed to form a sys- 
 tem for the regulation of boroughs in- 
 corporated thereafter. Commonwealth •;. 
 Montrose, 62 Pa. St. 391. Course of 
 legislation and decision in Fenns^'lvania 
 as to the incorporation of boroughs dis- 
 cussed in People v. Bennett, supra. 
 
 North Carolina. — By general act, every 
 incorporated town may elect, each year, 
 not less than three nor more than seven 
 commissioners, who are a body corporate 
 and the governing body of the town. 
 These commissioners are elected by the 
 vote of the citizens of the place. At the 
 
 same time they are also to elect a mayor, 
 who presides at the meetings of the com- 
 missioners, but who has no vote except 
 In case of a tie. The mayor is both a 
 peace officer and a judicial officer, with 
 the same jurisdiction as a justice of the 
 peace, with power also to " hear and de- 
 termine all cases that may arise upon the 
 ordj;iances of the commissioners," etc. 
 The commissioners may levy certain 
 specifled taxes, and make ordinances in 
 relation to their officers, records, markets, 
 nuisances, the repair of streets and bridges 
 in the town, etc., etc. These general pro- 
 visions apply to all incorporated towns, 
 when not inconsistent with special char- 
 ters or acts in reference thereto. Rev. 
 Code 1854, ch. ill. p. 586. 
 
 Michigan. — The general act of 1873 for 
 the incorporation of villages within any 
 two square miles of territory was held un- 
 constitutional because the rights of the 
 people concerned were not respected, and 
 the legislature had attempted to delegate 
 legislative powers to private citizens in- 
 stead of to corporate authorities or local 
 boards of officers. People v. Bennett, 29 
 Mich. 451, 1874 ; s. c. 18, Am. Rep.. 107. 
 
 New York. — In this state there are 
 cities with local and special charters, and 
 also towns whose powers, duties, and privi- 
 leges are particularly prescribed by stat- 
 ute. Each town is a body corporate for 
 specifled purposes ; but it is declared that 
 " no town shall possess or exercise any 
 corporate powers except such as are enu- 
 merated in this chapter, or shall be spe- 
 cially given by law, or shall be necessary 
 to the exercise of the powers so enumer- 
 ated or given." Rev. Sts. part I. ch. 
 xi. p. 337, sees. 1, 2. "The several 
 towns in this state," says Denio, J., in 
 Lorillard v. The Town of Monroe, 11 
 N. Y. (1 Kern.) 392, 1854, " are corpora- 
 tions for certain special and very limited 
 purposes, or, to speak more accurately, 
 they have a certain limited corporate ca- 
 pacity. They may purchase and hold 
 lands within their own limits for the use 
 of their inhabitants. They may, as a cor- 
 poration, make such contracts and hold 
 such personal property as may be neces- 
 sary to the exercise of their corporate or 
 
§ 42.] CREATION OF PUBLIC COKPOKATIONS. 59 
 
 1. It tends to prevent favoritism and abuse in procuring ex- 
 traordinary grants of special powers. 2. It secures uniformity 
 of rule and construction. All being created and endowed alike, 
 real wants are the sooner felt and provided for, and real griev- 
 ances the sooner redressed. 
 
 Creation hy Implication. 
 
 § 42. (21) It is well settled in England that, while a corpora- 
 tion must commence or be instituted by the proper authority, 
 yet no fixed, prescribed, or precise form of words is necessary 
 in order to create a corporation. While the words " to found " 
 " to erect or establish," or " to incorporate," are commonly used 
 to evince the intention to erect or create a body politic, they are 
 not necessary.! fhe king grants a charter to the men of Dale, 
 that they may annually elect a mayor, and plead and be im- 
 pleaded by the name of the mayor and commonalty. This is 
 considered to be sufficient to incorporate them.^ So a grant by a 
 charter containing no direct clause of incorporation to the inhab- 
 itants of a town " that their town shall be a, free borough," incor- 
 porates it.^ So, also, a grant by the king to the men of Dale that 
 they be discharged of tolls, incorporates them for this particular 
 purpose, but does not enable them to purchase.* The settled 
 doctrine is that a corporation may be created by implication, as 
 well as by the use of words. But this implication, to be suf- 
 
 administrative powers, and, as a neces- functions or duties," and hence, as to 
 
 sary incident, may sue and be sued, such subjects, the towns as corporations 
 
 where the assertion of their corporate are not liable for any default or malfea- 
 
 rights, or the enforcement against them sance of these officers. See, as to the cor- 
 
 of their corporate liabilities, shall require porate capacity of towns in New York, 
 
 such proceedings. (1 R. S. 387, sec. 1 et Denton v. Jackson, 2 Johns. Ch. B. 820; 
 
 seq.) In all other respects — Tor instance, North Hempstead v. Hempstead, 2 Wend. 
 
 in everything which concerns the admin- 109; affirming s. c. Hopk. 288; Cornell 
 
 istration of civil or criminal justice, the v. Guilford, 1 Denio, 510. 
 
 preservation of the public health and mor- Arkansas. — State v. Jennings, 27 Ark. 
 
 als, the conservation of highways, roads, 419, 1872. 
 
 and bridges, the reUef of the poor, and the i 10 Co. 27a, 28o, 296, 30 ; 1 Kyd, 62 ; 
 
 assessment and collection of taxes — the 2 Kent Com. 27. 
 
 several towns are political divisions, or- ^ 21 Edw. IV. 56. The doctrine of a 
 
 ganized for the convenient exercise of corporation by implication originated in 
 
 portions of the political power of the the time of Edward IV. lb. 8 Edw. IV. 
 
 state, and are no more corporations than 28. Post, sec. 660. 
 
 the judicial, or the senate and assembly i Kyd, 62, cites Firm. Burg. ch. ii.; 
 
 districts. lb. sec. 2. The functions and Madox Hist. Exch. 402. 
 
 duties of the several town officers respect- * Vin. Abr. Corp. F. pi. 6; /i. pi. 4; 
 
 ing these subjects are judicial and admin- Bagot's Case, 7 Edw. IV. 29 . Grant on 
 
 istrative, and not in any sense corporate Corp. 43, note e, and cases cited. 
 
60 MOTTICIPAL COEPOEATIONS. [GH. Ut 
 
 fioient, must clearly evince or express the intention to estafclisi 
 or constitute a body politic or corporate, that is, to invest it 
 with corporate powers and privil^es. But the absence of ex- 
 press provision respecting the inoidents which the law tacitly 
 annexes to corporations is considered immaterial. Thus the 
 omission in the charter or act of the words " to plead and be 
 impleaded," or " to have a seal," or " to make by-laws," would 
 not make it essentially defective.^ So it would not be essentid^lly 
 defective if the name was omitted, if the name could be ascer- 
 tained from the terms of the charter or act, or from the nature 
 of the thing or matters granted.^ Certain attributes or powers 
 are absolutely essential to constitute a body corporate, such as 
 perpetual succession^ the right to contract, to sue and be Sued 
 as a corporation, &c. Now if the charter or act, which is relied 
 upon as creating a body corporate by implication, instead of 
 simply omitting to express these essential pr6perties, negatives 
 and excludes them, it is plain that the body' would not be deemed 
 inieoFporated.^ 
 
 § 43. (2^) Although corporations in this countty are created 
 by statute, still the rule is here also settled that not only private 
 corporations aggregate, but municipal or public corporations^ 
 may be established without amy particular form of words, ov techni- 
 cal mode of expression, though such words are commonly em- 
 ployed.* If powers and privileges are conferred upon a body of 
 
 1 Rol. Abr.513j 1 Eyd, 63. The Con- 130, 1839: He gays: '"the morfe of per- 
 
 servators, etc. v.Ash, 10 Barn. & Cres. 349 petuating ttie existence of a corporate 
 
 (21 Eng. C. L. 97), 1829. " It is not neces- body is not essential ; all that is essential 
 
 sary," says Mr. Eyd, "that the charter is that some mode be provided by the 
 
 should expressly confer those powers witb- charter or act by which it is constituted, 
 
 out which a collective body of men cannot or by the general laws of the govemmehtr 
 
 be a corporation, such As the power of sU- by means of which it shall be so perpetu- 
 
 ing and being sued, and to take and grant ated." 22 Pick. 130; The Conservators 
 
 property, though such powers are, in gen- v. Ash. 10 Barn. & Cress. Sil9 ; (21 Eng. 
 
 eral, expressly given." 1 Kyd Ctitp. 63. C. L. 97.) 
 
 Thus, in the case of the Borough of Yar- ^ Trustees o. Parks, 10 Maine (IFairf.), 
 
 mouth, 1609, 2 Brownlow & Goldsb. 292, 441 ; School Com. v. Dean, 2 Stew. & 
 
 part II. it was decided by the common Port. (Ala.) 190, 1832. 
 bench, per Lord Coke, that a grant of ib- ° Grant on Corp. 80. 
 eorporation to the bilirgesses or dtizens of * Thomas v. Dakin, 22 Wend. 9, 84, 
 
 a borough or city, which, being an old ;)erCou)en, J., and authorities cited; Bow. 
 
 grdnt, should be favorably construed, was v. AUentown, 34 N. H. 351, 372; Steb- 
 
 good, without the words "their succes- bins v. Jennings, 10 Pick. 172 ; Benton v. 
 
 tors." Aiid see, on this 6Ubje6t, the Jackson, 2 Johns. Ch. 326, 326, 1817; 
 
 learned opidion of Shaw, C. J., in' Over- Mahottey i). The Bank of the State, 4 
 
 seers of Poor; etc' v. Sears, 22 Pick. 122, Ai&. 620, 1842 ; s. c. well digested in An- 
 
§ 43.] CEEAnOJSr OF PUBLIC COEPOEATIONS. 6J 
 
 men, or upon the residents or inhabitants of a town or district, 
 and if these cannot be exercised and enjoyed, and if the purposes 
 intended cannot be carried into effect, without acting in a cor- 
 porate capacity, a corporation is, to this extent, created by impli- 
 cation. The question turns upon the intent of the legislature, 
 and this can be shown constructively as well as expressly.^ This 
 is well illustrated in a case in Massachusetts,^ where the question 
 was whether the plaintiffs were a corporate body, with power to 
 sue. They were not incorporated expressly. But, by statute, 
 the inhabitants of the several school-districts were empowered, at 
 any meeting properly called, to raise money to erect, repair, or 
 purchase a school-house, to determine its site, etc., etc., the major- 
 ity binding the minority. The cause was argued by able counsel, 
 and, after several consultations, the judges of the Supreme Court 
 finally agreed in the opinion that the plaintiffs possessed sufficient 
 corporate powers to maintain an action on a contract to build a 
 school-house, and to make to them a lease of land. But the 
 intention of the legislature, where it is sought to show that a cor- 
 poration has been created by implication, must satisfactorily 
 appear.* 
 
 It may be remarked that where a municipal corporation ap- 
 pears to be acting under color of law, and its existence is not 
 questioned by the state, it cannot be collaterally drawn in ques- 
 tion by private parties ; and the rule is not different although 
 the constitution may prescribe the manner of incorporation.* 
 
 gell & Ames on Corp. eec. 77; North legislative grant gives capacity to hold 
 
 Hempstead v. Hempstead, 2 Wend. 109, the thing granted. Lord v. Bigelovr, 6 
 
 133, opinion by Savage, 0. J. ; Conserva- Verm. 465. 
 
 tors of River Tone v. Ash, 10 Bam. & ^ Medical Institute v. Patterson, 1 
 
 Cress. 849 ; Jeffreys v. Garr, 2 B. and Penio, 61 ; s. o. affirmed in court of er- 
 
 Adol. 841; Newport Trustees in re, 16 rors, 5 ib. 618, 1846; Myers e. Irwin, 2 
 
 Sim. 846; 2 Kent Com. 27. Serg. & Rawie, 368, 1816; Angell & 
 
 ' Same cases last cited. Ames, sec. 79, and cases cited ; Wells v. 
 
 " Inhabitants, etc. ». Wood, 13 Mass. Burbank, 17 N. H. 393; Society, etc. ». 
 
 193, 1816— Mr. Fessenden for tlie plain- Town of Pawlet, 4 Pet. (U. S.) 480, 502. 
 
 tiff, and Mr. Greenleaf for the defendant. To establish a corporation by implication. 
 
 In Bow V. Allentown, 34 N. H. 351, it was says Shaw, C. J., in Stebbins v. Jennings, 
 
 held that the annexation, by the leglsla- 10 Pick. 172, it must appear that the 
 
 ture, of other territory to the town of Al- rights and powers conferred can only be 
 
 lentown made that a corporate town by enjoyed by the exercise of corporate 
 
 irnpUcalion, a it was not so before; and powers, and, therefore, if such powers are 
 
 such also was the effect, under the con- not necessary, they are not impliedly 
 
 stitution of New Hampshire, of a grant to given. 
 
 a place having less than one hundred and * St. Louis v. Shields, 62 Mo. 247, 
 
 fifty polls to send a representative. A 1876 ; Cooley Const. Lim. 180, 254 ; Ge- 
 
62 MUNICIPAL CORPORATIONS. [CH. HI. 
 
 Acceptance qf Charter. 
 § 44. (23) The rule which applies to private corporations, that 
 the incorporating act is ineffectual to constitute a corporate body 
 until it is assented to or accepted by the corporators, has no appli- 
 cation to statutes creating municipal corporations.^ These are 
 imperative and binding without any consent, unless the act is 
 expressly made conditional. All who live within the limits of 
 the incorporated district are bpun(|^by them, and can withdraw 
 from the corporation only by removal. Over such corporations 
 the legislature, unless restrained by the constitution, has entire 
 control ; and unless otherwise provided by the act itself, or a 
 different intention be manifested, the public corporation is legally 
 constituted as soon as the incorporating act declaring it to exist 
 goes into effect.^ But while the legislature is not bound to obtain 
 the acceptance or assent of the municipal corporation, it is well 
 established that a provision in a municipal charter that it shall 
 not take effect unless assented to or accepted by a majority 
 of the inhabitants is not unconstitutional it being in no just 
 sense a delegation of legislative power, but merely a question as 
 to the acceptance or rejection of a charter.^ So a provision in 
 
 neva v. Cole (action to recover a tax), 61 ter, 3 N. H. 524, 532, 1826 ; State v. Can- 
 Ill. 397, 1871. See post, ch. xxi, quo war- terbury, 8 Fost. (28 N. H.) 218. Accep- 
 ranto. Entering into an obligation with tance, when requisite, may doubtless be 
 a corporation admits the corporate ca- implied in proper cases, as where no par- 
 pacity, and precludes a plea of nul tid ticular mode of expressing acceptance is 
 corporation. St. Louis v. Shields, 62 Mo. prescribed, from corporate acts and con- 
 247, 251, and cases cited. See also Her- duct, as in cases of private corporations. 
 man. Estoppel, chapter on Corporations- Taylor v. Newberne, 2 Jones Eq. N. C. 
 Post, sec. 449. 141, 1855. See Zabriskie v. Railroad Co., 
 
 1 Posi, sees. 54, 84, note 188. 23 How. ( D. S.) 381, 897, 1859. Post, sec. 
 
 s Berlin v. Gorham, 34 N. H. 266, 1856, 270, note. 
 per Bell, J., where it is accordingly held, ' People v. Salomon, 51 111. 53, 1869; 
 
 that to make an incorporation of a town Alcorn v. Horner, 38 Miss. 652, 1860 ; 
 
 effectual, it is not necessary that there Patterson v. Society, etc., 4 Zabr. (24 N, 
 
 should be a legal town meeting holden in J. L. ) 385, 1854 ; Smith v. McCarthy, 56 Pa. 
 
 it.- See also People ». Wren, 4 Scam. (5 St. 359 ; County o. Quarter Sessions, 8 
 
 111.) 269 ; Warren v. Charlestown, 2 Gray, Barr. (Pa.) 395; Commonwealth w.Painter, 
 
 104; Mills V. Williams, 11 Ire. 558; State 1076. 214; and see also Bull v. Read, 13 
 
 p. Curran, 7Eng. (12 Ark.) 321;B'ireDe- Gratt. (Va.) 78, 1853; People v. Rey- 
 
 partment v. Kip, 10 Wend. 267 ; People ». nolda, 6 Gilm. (10 111.) 1 ; State ». Scott, 
 
 Morris, 13 Wend. 825, 337 ; Brouwer v. 17 Mo. 521 ; Hudson Co. v. State, 4 Zabr. 
 
 Appleby, 1 Sandf. 158, 1847 ; People v. (24 N. J. L.) 718; Bank v. Brown, 26 N. 
 
 President, 9 Wend. 351 ; Wood v. Bank, Y. 467, 1863 ; Call r. Chadbourne, 46 Me. 
 
 9 Cow. 194, 205, 1828; Proprietors, etc. 206; State v. Wilcox, 45 Mo. 458; Ho- 
 
 I-. Horton, 6 Hill, 501 ; Gorham v. Spring- bart v. Supervisors, 17 Cal. 23 ; Lafay- 
 
 field, 21 Maine, 58, 1842 ; People v. Stout, ette, etc. R. R. Co. v. Geiger, 34 Ind. 186. 
 
 23 Barb. 349, 1856 ; Bristol v. New Ches- This case asserts a distinction between a 
 
§44.] 
 
 CREATION OF PUBLIC CORPORATIONS. 
 
 63 
 
 a charter, or the constituent act of a municipal corporation, by 
 which the right to make certain improvements or to create cer- 
 tain liabilities is made to depend upon a vote of the people 
 interested, has frequently been upheld as valid. ^ So an act 
 directing an election to be held by the qualified electors inter- 
 ested to determine, by ballot, whether a newly-erected township 
 should be continued is constitutional.^ On the same principle 
 
 bill submitted to the people of tlie whole 
 state for adoption or rejection, and an act 
 which leaves it to the inhabitants of a 
 particular locality whether they will 
 avail themselves of its provisions. It has 
 been held in New Hampshire that it was 
 competent for the legislature, under the 
 constitution of the state, to enact a penal 
 law which shall have effect only in those 
 towns which adopt it by vote. State v. 
 Noyes, 10 Fost. (30 N. H.) 279, 1855. An 
 amendment to-a city charter was to take 
 effect only when adopted " by a majority 
 of the voters of the city." This was con- 
 sidered to manifest the intention to pre- 
 sent the question of acceptance to the 
 voters at a regular city election. The 
 council ordered the vote to be taken at 
 the toumship polls ; the voters of the two 
 organizations possessing different qualifi- 
 cations, but the township and city occu- 
 pied precisely the same territory. Held, 
 that the election was of no validity, and 
 that the amendment had never been duly 
 accepted. Foote a. Cincinnati, 11 Ohio, 
 408, 1842. 
 
 A useful article upon the Constitu- 
 tionality of Local Option Laws will be 
 found in 12 Am. Law Reg. (N. S.), March, 
 1873, p. 129. Affirming the principle that 
 municipal or public corporations or the 
 people thereof may by the legislature be 
 invested with the power to regulate or 
 prohibit the retail of intoxicating drinks, 
 the Supreme Court of New Jersey have 
 recently decided the Chatham Local Op- 
 tion Law, which declared the retail of 
 ardent spirits without license to be un- 
 lawful, and which provided that no license 
 should be granted if a majority of the 
 voters of a township voted "no license," 
 to be constitutional. State v. Morris 
 Common Pleas, 12 Am. Law Keg. (N. S.) 
 82; B. c. 36N.J. L. 72;8. c. 13 Am. Hep. 
 422. See also Howe v. Plainfield (intoxi- 
 cating liquors), 87 N. J. L. 146; Free- 
 
 holders of Hudson (power of local body to 
 fix rates of ferriage), 4 Zabr. (24 N. J. L.) 
 718. Validity of Local Option Laws de- 
 nied, and the subject fully examined in 
 Wall in re, 48 Cal. 279, 1874; a. c. 17 
 Am. Rep. 425 ; People v. Wall, 49 Cal. 
 478, 1875 ; Anderson v. Commonwealth, 
 14 Bush, 171 ; State v. Cook, 24 Minn. 
 247; Fell v. State (Liquor Law), 42 Md. 
 71, 1875; s. c. 20 Am. Rep. 83. See also 
 in Pennsylvania the case wliich involved 
 the question of the validity of the act of 
 May, 1871, "to allow the voters of the 
 22d Ward of Philadelphia to vote on the 
 question of granting licenses to sell in- 
 toxicating liquors." Locke's Appeal, 72 
 Pa. St. 491; s. c. 13 Am. Rep. 71B; Glov- 
 ersville v. Howard (intoxicating liquors), 
 70 N. Y. 287, 1877 ; State v. Wilcox, 42 
 Conn. 364, 1875 ; s. c. 19 Am. Rep. 536. 
 Post, sec. 308. 
 
 1 Clarke v. Rochester, 28 N. Y. 606 ; 
 Patterson v. Society, etc. 4 Zabr. (24 N. J. 
 L.) 385 ; Bank of Rome v. Rome, 18 N. Y. 
 38 ; Trustees v. Cherry, 8 Ohio St. 564 ; 
 Burnes v. Atchison, 2 Kansas, 454, 1864; 
 Bank v. Brown, 26 N. Y. 467 ; Hammond 
 V. Haines, 25 Md. 541 ; Railroad Co. v. 
 Commissioners, 1 Ohio St. 77 ; Foote v. 
 Cincinnati, 11 Ohio, 408, 1842; St. Louis 
 V. Alexander, 23 Mo. 483; Blanding v. 
 Burr, 13 Cal. 343. These cases are dis- 
 tinguishable from Barto o. Himrod, 4 
 Seld. (8N. Y.)483. 
 
 2 Commonwealth v. Judges, etc., 8 Pa. 
 St. 891 ; distinguished from Parker v. 
 Commonwealth, 6 76. 507 ; Commonwealth 
 V. Painter, 10 Pa. St. 214, 1849; Smith v. 
 McCarthy, 56 Pa. St. 359. So the ques- 
 tion may be submitted whether a portion 
 of an adjoining county shall be annexed. 
 People B. McNally, 49 Cal. 478, 1875. 
 Where the authority to act depends upon 
 the prior sanction of " a majority of the 
 qualified voters " residing in the corpora- 
 tion, the presumption is that all who vote 
 
64 
 
 MUNICIPAL COBPOEATIONS. 
 
 [CH. III. 
 
 the legislature may provide that a statute shall cease to exist 
 unless the municipal corporation to be affected by it shall, within 
 a prescribed period, assent to it.^ Permitting the voters of a 
 municipality to decide upon questions of local interest or expe- 
 diency, such as those mentioned in this section and in the notes, 
 seems to the author to be conformable to those ideas of self'^ 
 government and self-regulatiop by tbe people concerned, which 
 lie at the basis not only of our municipalities but of our institu- 
 tions. The only limit is that the<»legislature must not delegate 
 its function as the law-making branch of the government. 
 
 Special Constitutional Provisions. 
 § 45. (24) The constitutions of many of the States contain pro- 
 visions respecting the creation and powers of municipal corpora- 
 tions. In some of the constitutions the legislature is in terms 
 allowed to create corporations for municipal purposes by special 
 act? and in others it is in terms forbidden to do this, and re- 
 quired to provide a general law for all corporations, public and 
 private.^ So far as municipal corporations and their rights are 
 
 are legal voters; and the better view 
 probably is, that those who do not vote 
 acquiesce in the result, and that a ma- 
 jority of those actually voting is sufficient, 
 though in point of fact, it may not be a 
 majority of all who would be entitled to 
 vote. State v. Binder, 38 Mo. 450, 1866; 
 State V. Mayor, etc., 37 Mo. 270. And of 
 this opinion is the Supreme Court of the 
 United States, in which, in an action on 
 municipal bonds, the phrase " a majority 
 of the legal voters of the township " was 
 held to mean a majority of the legal 
 voters of the township voting at the elec- 
 tion. St. Joseph Township v. Rogers, 16 
 Wall. 644, 1872 ; People v. Warfield, 20 
 111. 163; People v. Weant, 48 HI. 263; 
 Railroad v. Davidson County, 1 Sneed 
 (Tenn.) 692; Talbot «. Dent, 9 B. Mon. 
 526 ; Angell & Ames Corp. ed. sees. 
 499, 500. But compare State v. Winkel- 
 meler, 35 Mo. 103, which construes such 
 language to require a " majority of all the 
 legal voters of the city, and not merely 
 of all who might, at a particular time, 
 choose to vote upon it." See Damon v. 
 Granby, 2 Pick. 845, 355, 1824, and chap- 
 ter on Corporate Meetings, post. Infra, 
 sec. 47, note 1. 
 
 ' Coming v. Greene, 23 Barb. 33, 1856. 
 2 Post, oh. iv. New Ymh constitution, 
 1846, art. viii. sec. 1 ; Illinois constitu- 
 tion, 1847, art. x. sec. 1 ; see, also, new 
 constitution, 1870 ; Michigan constitution, 
 1850, art. xv. see. 1 ; California constitu- 
 tion, 1849, art. iv. sec. 31 ; construed, 
 Railroad Co. v. Plumas Co., 37 Cal. 354 ; 
 Minnesota constitution, 1857, art. x. sec. 
 2 ; Tiemey v. Dodge, 9 Minn. 171 ; 12 lb. 
 41 ; Oregon constitution, 1857, art. xi. sec. 
 2 ; Louisiana constitution, 1864, title vii. 
 art. cxxi. ; Nevada constitution, 1864, art. 
 viii. sec. 1 ; construed, Virginia City v. 
 Mining Co., 2 Nev. 86. In Missouri it is 
 provided that no municipal corporation 
 shall be created by special act, except 
 cities of at least 6,000 inhabitants, the 
 special act to be approved by a, vote of 
 the inhabitants. Constitution 1865, art. 
 viii. sec. 5. 
 
 3 Iowa constitution, 1857, art. iiL sec. 
 30; Von Phul v. Hammer, 29 Iowa, 222 ; 
 Florida constitution, 1865, art. iv. sec. 20 ; 
 Netrrasika constitution, art. viii. sees. 1 
 and 2. By the new constitution of Illi- 
 nois, special legislation is forbidden " in- 
 corporating cities, towns, or villages, or 
 changing or amending the charter of any 
 
§46.3 
 
 CREATION OF PUBLIC COEPORATIONS. 
 
 65 
 
 protected by constitutional provisions, express or implied, they are 
 removed from legislative control, but no further, as we shall see 
 in a subsequent chapter. Although the constitution of a state 
 may recognize the municipal corporation of an important city by 
 fixing the number of certain officers, and providing for their elec- 
 tion, etc., yet this does not make the charter of the city a consti- 
 tutional charter conferring powers beyond the control of the 
 legislature.^ 
 
 town, city, or village." Wisconsin con 
 stitutional amendment 1871. Atty. Genl. 
 D. Bailroad Go., 35 WU. 426 ; Kimball v. 
 Bosendale, .42 VPis. 407 ; Stevens Point 
 & Co. «. Reilly, 44 Wis. 295; Kansas 
 constitution, art. xii. sees. 1 and 5 ; con- 
 strued, Wyandotte City v. Wood,. 5 Kan. 
 603; Atchison v. Bartholow, 4 lb. 124. 
 The constitution of Ohio is as follows : 
 " The General Assembly shall provide for 
 the organization of cities and incorpor- 
 ated villages by general, taws, and restrict 
 their power of taxation, assessment, bor- 
 rowing money, contracting debts, and 
 loaning their credit, so as to prevent the 
 abuse of such power." Constitution A. 
 D. 1861, art. xiii. sec. 6. Under this sec- 
 tion the legislature, by the Towns' and 
 Cities' Act of May 3, 1852 (Swan & 
 Critchf. Stats. 1497), undertook to pro- 
 vide for the government of all such 
 places by a general statute. Thomas 
 B. Ashland, 12 Ohio St. 124. An act 
 applying to all cities of the first class 
 containing less than 100,000 inhabitants 
 is not in conflict with the provision 
 of the constitution which requires all 
 laws of a general nature to liave a uni- 
 form operation throughout the state. 
 Welker v. Potter, 18 Ohio St. 85, 1868 ; 
 see also Lafayette v. Jenners, 10 Ind. 70, 
 80, 1857. Construction of constitutional 
 provision tliat there shall be "but one 
 system of toum and county government," 
 which " shall be as nearly uniform as 
 practicable." State v. Dousman, 28 Wis. 
 541, 1871 ; State v. Riordan, 24 Wis. 484, 
 1869. 
 
 1 Baltimore o. Board of Police, 15 Md. 
 876, 1859 ; see also Patterson v. Society, 
 etc. 4 Zabr. (24 N. J. L.) 885, 1854. In 
 People I). Draper, 15 N. Y. 661, Brown, J., 
 says : " When the present constitution 
 was formed, the entire territory of the 
 
 VOL. I. 5 
 
 state was separated, and appropriated by 
 its civil divisions, its counties, cities, and 
 towns. These tavil divisions are coeval 
 with the government. The state has 
 never existed a moment without them. 
 All our thoughts and notions of civil 
 government are inseparably associated 
 with counties, cities, and towns. They 
 are permanent elements in the frame of 
 government; they are institutions of the 
 state, durable and indestructible by any 
 power less than that which gave being tO' 
 tlie organic law. They are, however, 
 subject to control and regulation by the' 
 legislature. It may enlarge or circum- 
 scribe their territorial limits, increase or 
 diminish their numbers, separate them 
 into parts, and annex some of the parts 
 to parts of others; but they must still 
 assume the form and be known and gov- 
 erned only as counties, cities, or towns. 
 The state at large is, and ever has been, 
 an aggregate of these local bodies." To 
 same effect in same case, Tb. 541, per 
 Denio, C. J., and see also opinion of Allen, 
 J. in People v. Albertson, 55 N. Y. 50, 
 1873. See also People v. Morrell, 21 
 Wend. 563 (division of counties) ; ante, 
 sec. 9, et see/. In People v. Hurlbut, d& 
 aided by the Supreme Court of Michigai;, 
 in 1871, 24 Mich. 44, s. c. 9 Am. Rep. 
 103, this subject is largely and learnedly 
 examined by Mr. Justice Cooky, who, 
 conceding to the state full authority to 
 shape and control municipal organiza- 
 tions at its will, nevertheless maintained 
 that there were, in the constitution of that 
 state, both express and implied restric- 
 tions upon the legislative dominion over 
 municipal institutions, and that local 
 governments and the right of the people 
 to them were secured by the constitution, 
 and did not exist by the favor and at the 
 mere pleasure of the legislature. And 
 
66 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. III. 
 
 § 46. (24a) The constitntion of Kansas, as well as of Ohio, in 
 the article entitled " Corporations," contains a provision that 
 " the legislature shall pass no special act conferiing corporate 
 powers" 1 and the Supreme Courts of those States have decided 
 that the provision applied to municipal as vs'ell as private corpo- 
 rations ; ^ and that the effect was to compel the legislatures of 
 those states to regulate the grant of powers to municipal corpora- 
 tions by general laws. Hence an act specially amending the 
 charter of a city in respect to mailing local improvements or as- 
 sessments,^ or specially extending the limits of a particular city,* 
 is unconstitutional ; and so it seems is an act which authorizes a 
 city by name to issue its scrip for a particular purpose, and to 
 levy taxes to pay it in aid of a single enterprise, — the court in- 
 
 in the same case the court decided, under 
 a special provision of the constitution of 
 the state, elsewhere noticed, that the 
 legislature could not appoint, for a city 
 corporation, officers whose duties were 
 purely local and strictly municipal. The 
 discussions by all of the judges are un- 
 usually interesting. Ante, § 11 et seq. 
 
 ^ Constitution of Kansns, art. xii. 
 sees. 1 and 2 of art. xiii. of the con- 
 stitution of Ohio is the same as sec. 1, 
 art. xii. of the constitution of Kansas. 
 Sec. 6, art. xiii. of the Ohio constitution 
 is the same as sec. 5, art. xii. of the 
 Kansas constitution. There is it similar 
 constitutional provision in Nebraska, and 
 perhaps in other states. This provision 
 construed (Clegg v. Richardson Co., 
 8 Neb. 178; Dundy v. Bichardson Co., 
 8 Neb. 608), and held to invalidate certain 
 bonds issued under a special law. s. p. 
 School District v. Insurance Co., 101 U. S. 
 707. Supra, sec. 45 ; post, sec. 49. 
 
 2 Atchison v. Bartholow, 4 Kan. 124, 
 1866 ; Wyandotte City v. Wood, 5 Kan. 
 603, 1870; The State <;. Cincinnati, 20 
 Ohio St. 18, 1870 ; following Atkinson v. 
 Railroad Co., 16 Ohio St. 21, 1864. In 
 New Jersey such a provision is held to 
 apply exclusively to private corporations. 
 State V. Newark, 40 N. J. L. 650, 558, 1878. 
 " Atchison v. Bartholow, supra; Gil- 
 more II. Norton, 10 Kan. 491, 1872. 
 
 * Wyandotte v. Wood, supra; State v. 
 Cincinnati, supra. In the case last cited, 
 the Supreme Court of Ohio, under the 
 
 constitutional provision quoted in the 
 text, held that the legislature cannot by 
 special act create a corporation, nor by 
 special act confer additional powers on a 
 corporation already existing; and that in 
 these respects there was no difference 
 between private and municipal corpora- 
 tions, since the constitution equally em- 
 braced and equally applies to both classes ; 
 and therefore tlie act of April 16, 1870, 
 " to prescribe the corporate limits of Cin- 
 cinnati," being considered a special act, 
 was adjudged void. See also Atkinson 
 r. Railroad Co., supra. In this case, 
 Ranney, J., thus expounds the constitu- 
 tion : " These provisions of the constitu- 
 tion are too explicit to admit of the least 
 doubt that they were intended to disable 
 the General Assembly from either creat- 
 ing corporations, or conferring upon them 
 corporate powers by special acts of legis- 
 lation. It was intended to correct an 
 existing evil, and to inaugurate thb policy 
 of placing all corporations of the same 
 kind upon a perfect equality as to all 
 future grants of power ; of making such 
 law applicable to all parts of the state, 
 and thereby securing the vigilance and 
 attention of its whole representation ; and 
 finally, of making all judicial construc- 
 tion of their powers, or the restrictions 
 imposed upon them, equally applicable lo 
 all corporations of the same class. We 
 must give such a construction to the con- 
 stitution as will preserve its leading ob- 
 jects intact." Supra, sec. 41. 
 
§46.] 
 
 CRFATION OF PUBLIC CORPORATIONS. 
 
 67 
 
 dining to hold such an enactment to be a special act, and one 
 which undertook to confer corporate powers.^ 
 
 It was subsequently decided that while the provision of the 
 constitution of Kansas that forbids the legislature to pass " any- 
 special act conferring corporate powers " includes municipal cor- 
 porations proper, it does not embrace quasi corporations, such as 
 school-districts, although the latter are declared by statute to be 
 bodies corporate.^ In California an act of the legislature whicli 
 grants to individuals and their assigns certain powers and privi- 
 leges, and then provides that the act shall not take effect, unless 
 such persons within a given time shall organize themselves under 
 
 1 Commercial National Bank v. City 
 of lola, 2 Dillon, C. C. R., 353, 1873. In 
 this ease the Circuit Judge, delivering 
 the opinion of the court, and referring to 
 the opinion of Ranney, J., quoted in the 
 last note, observed : " Ope of the objects 
 of the constitutional provision in Kansas, 
 as well as in Ohio, was to cut up by the 
 roots the mischief of special legislation, 
 particularly in respect to corporations, 
 both public and private. This object 
 would be defeated if the special act re- 
 lating to the city of lola could stand. If 
 under the^octrine of Butz v. Muscatine, 
 8 Wall. 675, this court is not absolutely 
 bound, in this class of cases, to follow 
 the interpretation of the state constitu- 
 tion given by its highest court, yet it 
 seems that it ought to follow it where it 
 appears to rest upon solid grounds, and 
 was made in cases and in respect to ques- 
 tions where there was notliing to warp 
 the judgment of its judges, and where 
 the interpretation was settled or had been 
 declared at the time the act in controversy 
 was passed. In the latest case on this 
 subject, decided by the Supreme Court 
 of the United States, it Is not denied that 
 the Supreme Court of a state is the ap- 
 pointed expositor of its constitution and 
 laws, and that the Federal courts will 
 adopt as rules for their own judgments 
 the decisions of the highest courts of the 
 state ' respecting local questions peculiar 
 to itself, or respecting the construction 
 of its own constitution and laws.' It only 
 denies the binding force of state adjudi- 
 cations which rest upon the general prin- 
 ciples of law, and not upon the meaning 
 of special constitutional or legislative 
 
 provisions. Olcott v. Supervisors, 16 
 Wall. 678, 1872. I think the present 
 case is one in wliich it is the duty of this 
 court to follow the decisions of the state 
 Supreme Court ; and so far as my judg- 
 ment rests upon the special provisions of 
 the constitution above referred to, I place 
 it upon the state adjudications without 
 an inquiry into their soundness." The 
 bonds in this case were held invalid 
 mainly on the ground that they were not 
 issued for a public purpose. The judg- 
 ment of the Circuit Court was affirmed. 
 20 Wall. 655, 1874. See also Savings 
 Assoc, ti. Topeka, 3 Dillon, 376, 1874; 
 post, sec. 159 ; also ch. xiv. on Contracts. 
 2 Beach v. Leahy, 11 Kan. 23, 1873. 
 Under the constitutional provision in ques- 
 tion the Supreme Court of Kansas, in the 
 State ». Maloy, 20 Kan. 619, 1878, ruled 
 the following points as stated by the 
 judges : The act of the legislature en- 
 titled " An act authorizing cities therein 
 named to become cities of the second 
 class," approved February 29, 1872, is a 
 special act, conferring corporate powers 
 upon four particular municipal corpora- 
 tions, and is therefore unconstitutional 
 and void, being in contravention of sec. 
 1 of art. xii, of the constitution, which 
 provides that "the legislature shall pass 
 no special act conferring corporate pow- 
 ers." 2. The city of Council Grove was 
 organized as a city of the second class, 
 under said special act, and was never 
 organized as a city of the second class 
 under any other act, and has never had 
 a population of two thousand inhabitants. 
 And It was therefore held that said city 
 is not legally a city of the second class. 
 
68 MUNICIPAL CORPORATIONS. [Cfl. MI. 
 
 existing laws into a corporation, is a grant, not to the individ'ttids 
 as persons, but to the oorpdratidn when formed.^ 
 
 § 47. (25) A cohstitatiOnal provision that two thirds of the G-bii- 
 eral Assembly " shall be requisite to evefi/ bill creating, continutflg, 
 altering, or renewing aril/ body politic or corporate" was held by 
 a majority of the court of errors, rerersihg the majority view of 
 the Supreme Court in the same case, to extend to publib and rnu- 
 nicipal,, as well as private, corporations.^ But the constitutional 
 provision that " no bill shall contain more than one subject, wbi£^h 
 shall be clearly expressed in its title," has no applicaticiD to mu- 
 nicipal ordinances.^ 
 
 § 48. (26) Under a constitution which provides that "in M 
 oases where a general law can he made applicable, no special law 
 shall be enacted" the better view, and the otie supported by the 
 decided weight of authority, is that it is for the legislature to de- 
 termine whether its purpose can or cannot be expediently effected 
 by a genieral law ; and a special act, as, for e,xample, one providing 
 for the location of the county seat of a specified county^ will not 
 be held invalid by the courts.* 
 
 1 Sail Francisco «. S. V. W. W. 48 quired to be, and could be, made generall. 
 
 Cal. 493, 1874. Such an act is an at- Von Phul v. Hammer, 29 Iowa, 222. It 
 
 tempt by the tegi^latu're in violation of is for the legislature, and not the courts, 
 
 the constitution to confer powers and to determine when a general law can be 
 
 privileges upon a corporation by special made applicable. Gentile v. State, 39 
 
 act. lb. post, sec. 49. Ind. 409, overruling Thomas v. Board of 
 
 '' Purdy u. People, 4 Hill (IST. Y.), 384, Commissioners, 5 Ind. 4; Longwortli's 
 
 1842; reversing 2 Hill, 31. "What is an Executors v. Evansville, 32 Ind. 3Si2; 
 
 alteration within this provision. Corning Cooley Const. Lim. 123, note ; State u. 
 
 V. Green, 28 Barb. S3 ; Smith v. Helnier, County Court, 50 Mo. 317, 1872, s. c.'ll 
 
 7 Barb. 416; Mori-is ». People, 3 Denio, Am. tlep.ilb; Murdock v. Woodson, 2 
 
 381. Wliere a constitution requires that Dillon C. C. 188, 1873 ; Board of Commis. 
 
 acts of incorporation shall have "the v. Shields, 62 iMo. 247, 1876 ; Evans ». Job, 
 
 assent of at least two thirds of each 8 Kev. 322, 1873, where the decisions in 
 
 house," the word " house " means the that state and elsewhere are reviewed by 
 
 members present doing business — these Hauiley, 3. The word " town " — as used 
 
 being a quorum — and not a majority of in constitutional inhibition of special laws 
 
 all the members elected. Southworth v. regulating the internal affairs of.towiis 
 
 Kaili-oad Co., 2 Mich. 287. and counties — is a generic term, inclu^- 
 
 8 Humboldt V. McCoy, 23 Kan. 249; ing cities. State v. Parsons, 40 N. J. L. 1. 
 
 Green u. Indianapolis, 25 Ind. 490. But in the absence of any clear expression 
 
 * State V. Johnson, 1 Kan. l78, 1862; of a contrary intent, the term " municipal 
 contra, Pfitz in re, 9 Io<va, 30, 1859, where corporation," in any statute must be taken 
 a special act amending the charter of a in the strict constitutional sense as not in- 
 city was held invalid because all such laWa eluding towns. Eaton v. Manitowdb, 44 
 were, by the constitution of the state, re- Wis., 489. 
 
§50.] CREATION OJf PUBLIC COKPOKATIONS. 69 
 
 § 49. The copstitutions of several of the States contain a pro- 
 visiou that eorporationB shall not 6« created hy special acts except 
 for ntunicipal purposes. What is a municiped purpose within this 
 provision has been several times considered.^ An act incorporat- 
 ing at board of commissioners for filling up certain slough ponds in 
 the city of St. Louis was held to create a coi-poration for municipal 
 purposes within the meaning of the constitution.^ An act creat- 
 iug a board of park commissioners was considered to constitute 
 them a corporate authority, the object of their creation being 
 W.unicipaJ iu its character.^ So a corporation to carry on a public 
 school and raise funds for its support.* 
 
 § 60.. (27) The constitutions of several of the states contain, 
 substantially, this provision, derived from the constitution of 
 New York : " It shall be the duty of the legislature to provide for 
 tjie organization of cities and incorporated villages, and to restrict 
 their power of taxation, assessment, borrowing money, contracting 
 debts, and loaning their credit, so as to prevent abuses in assess- 
 ments, and in contracting debts by such municipal corporations." ^ 
 This obviously enjoins upon the legislature the duty of providing 
 suitable and proper restrictions upon the enumerated powers ; but 
 in what these restrictions shall consist and how they shall be 
 imposed are subjects left to the discretion or sense of duty ol 
 the legislative department, with the exercise of which the courts 
 
 1 State ex rel. Choteau v. Leffingwell, porate power, and therefore cannot be 
 
 94 Mo. 458, 1873, where the subject i» made to a private corporation by special 
 
 elaborately discussed, and the conclusion act. 76. ante, sec. 46. 
 
 reached was that corporations for " muni-. ^ St. Louis ». Shields, 62 Mo. 247, 1876. 
 
 eipal purposes " imder the constitution of ^ People v. Salomon, 61 III. 37. 
 
 Missouri must be connected with the mu- * Horton v. Mobile School Commrs., 43 
 
 nicipal corporation itself and be instituted Ala. 598. See comment of Wagner, 3., 
 
 for the purpose of carrying out some of on this decision in St. Louis v. Shields, 62 
 
 the objects of the municipality. Under Mo. 251. 1876. 
 
 the constitution of California, which pro- ' New York constitution 1846, art. 
 
 videa that " corporations may be formed viii. sec. 9 ; Wisconsin constitution 1848, 
 
 under general laws, but shall not be ere- art. xi. sec. 3 ; MicMgan constitution 
 
 ated by special act, except for municipal 1869, art. xii. sec. 13 ; Oregon constitu- 
 
 purposes," a corporation cannot exer- tion 1867, art. xi. sec. 6 ; Kansas consti- 
 
 cise any powers except those conferred tution 1869, art. xii. sec. 6 ; see Paine v.. 
 
 by general laws. The legislature can- Spratley, 5 Kan. 525; Nevada consti- 
 
 not confer on such corporations any pow- tution 1864, art. viii. sec. 8 ; Nebrask<n 
 
 ers or grant them any privileges by special constitution, art. viii. sec. 4 ; California 
 
 act, San Francisco v.. S. V. W. W. 48 constitution, 1849, see. 37 ; Ohio oonstiti*- 
 
 Cal. 493, 1874. A grant of an ease- tion 1851, art. xiii. sec. 6. Post, sec. 
 
 ment in a street made by the legislature 760, note. See, also, chapters relating to 
 
 to a corporation, is purely a grant of cor- Contracts and Taxation, post. 
 
70 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. III.' 
 
 cannot interfere.^ The Supreme Court of Wisconsin, in the 
 case cited in the note, holds to some extent a contrary view, 
 but its judgment was in effect, although not in terms, overruled 
 by the Supreme Court of the United States, and in its full extent 
 is not in harmony with the view elsewhere taken in the state 
 courts.^ 
 
 § 51. (28) Many of the state constitutions contain in sub- 
 stance a provision that no legislattbe act shall embrace more than 
 one object, to be expressed in its title. This provision has been 
 frequently and properly construed to require only the general or 
 ultimate object to be stated in the title, and not the details by 
 which the object is to be attained. Any provision calculated to 
 carry the declared object into effect is unobjectionable, although 
 not specially indicated in the title. Thus, where a constitution 
 provides that no bill or act shall pass containing any matter 
 
 1 The failure of the legislature to per- 
 form the duty relative to restricting the 
 power of taxation, etc., enjoined by the 
 constitutional provision above cited, 
 " may," says Eannet/, J., in Hill v. Higdon, 
 5 Ohio St. 248, "be of very serious im- 
 port, but lays no foundation for judicial 
 correction." See iWaloy, v. Marietta, 11 
 Ohio St. 636, 638, where this view is left 
 open, but holding that the legislature 
 alone has the power to determine the 
 mode and measure of the restriction to be 
 imposed. It was also left open in the 
 People V. Malmney, 13 Mich. 481, but 
 this case illustrates what is a sufficient 
 restriction on the power of taxation to 
 meet the constitutional requirement. See 
 also Cooley Const. Lira. 618; Bailroad 
 Co. V. Connelly, 10 Ohio St. 165. To 
 the effect that the constitutional provi- 
 sion quoted in the text does not take 
 away, but recognizes, the discretion of the 
 legislature in conferring powers of the 
 enumerated character upon municipal 
 corporations, and that such discretion is 
 not reviewable by the courts, see Bank 
 of Rome v. Rome, 18 N. Y. 38, 1858; 
 Benson ». Mayor, etc. of Albany, 24 Barb. 
 248, 1857; Clarke ». Rochester, Th. 446; 
 Grant v. Courier, lb. 232 ; Wynehamer 
 V. People, 13 N. Y. 429; Baltimore v. 
 State, 15 Md. 376. People ». Draper, 15 
 N. Y. 532 ; White v. Stamford, 37 Conn.587. 
 
 2 Foster v. Kenosha, 12 Wis. 616, 1860. 
 The legislature cannot, consistently with 
 this restriction, confer upon a municipal 
 corporation an unlimited power to levy 
 taxes and raise money for extra munici- 
 pal purposes, such as aiding railroad com- 
 panies ; and an amendment to the charter 
 of a city, authorizing its council "to levy 
 and collect special taxes for any purpose 
 (aside from what may be specially pro- 
 vided for in the city charter) which may 
 be considered essential to promote or 
 secure the common interests of the city, 
 or borrow, on the corporate credit of the 
 city, any sum of money at a rate of in- 
 terest not exceeding ten per cent," on 
 obtaining the previous sanction of a ma- 
 jority of the voters of the city, is void, 
 and the requirement of the sanction of 
 the voters is not a restriction on the power 
 to levy taxes or contract debts, within 
 the meaning of the constitution, the court 
 being of opinion that the duty of impos- 
 ing the limitation rests on the legislature. 
 lb. But see Campbell t,. Kenosha, 5 
 Wall. 194, 1866; City v. Lamson, 9 Wall. 
 477, 1869 ; and the authorities cited in 
 the last note. See Rogan v. Watertown, 
 30 Wis. 259, 1872, as to loaning credit. 
 
 Other restrictions upon the power to 
 contract debts : see chapters on Charters 
 and Contracts, post. 
 
§51.J 
 
 CREATION OF PUBUC COKPORATIONS. 
 
 71 
 
 different from what is expressed in the title thereof, an act, the 
 title of which declares it to he for the better regulation of a certain 
 town (naming it), or to amend or enlarge the powers of the corpora- 
 tion thereof, is sufficient, without enumerating the particulars in 
 which the powers are enlarged or extended.^ So a provision in 
 an act entitled merely, " An act to amend the act incorporating 
 the city of M.," extending the city limits, does not conflict with 
 the constitutional requirement that " every law shall embrace but 
 one object, which shall be expressed in its title." ^ 
 
 > Green v. Mayor, B. M. Charlt. (Ga.) 
 868, 1832, per Law, 3. ; Mayor v. State, 4 
 Ga. 26; Hill v. Decatur, 22 Ga. 20.3. 
 Text a£Srmed. Luerhman v. Taxing Dlst., 
 2Lea(Tenn.),425. 
 
 ''Morford v. Unger, 8 Iowa, 82, 1859 ; 
 Davis V. Woolnougb (act establishing 
 city court), 9 lb. 104. S. P. St. Paul v. 
 Coulter, 12 Minn. 41, 50, 1866. In de- 
 termining whether a law be in conflict 
 with the provision of the constitution, the 
 unity of the object is to be looked for in 
 the ultimate end to be attained, and not 
 in the details leading to that end. State, 
 etc. V. Co. Judge, 2 Iowa, 280 ; People v. 
 Mahaney, 13 Mich. 481, 1865 ; approved, 
 White V. Lincoln, 5 Neb. 505, 1877; 
 Atty. Genl. v. Bradley, 36 Mich. 447, 
 1877 ; People v. Hurlbut, 24 Mich. 44, 
 1871 ; 8. o. 9 Am. Rep. 103. Construc- 
 tion of similar constitutional provision. 
 Arnoult o. New Orleans, 11 La. An. 
 54 ; Kathman v. New Orleans, lb. 145 ; 
 People V. Mellen, 82 111. 181; Railroad 
 Co. V. Gregory, 15 111. 21 ; Davis v. State 
 (inspection act for Baltimore), 7 Md. 151 ; 
 Annapolis v. State, 30 Md. 212 ; Lafon v. 
 Dufrocq, 6 La. An. 350 ; Ottawa v. Peo- 
 ple, 48 111. 233, 1868 ; Miles v. Charleton, 
 29 Wis. 400, 1872 ; Murdock v. Woodson, 
 2 Dillon C. C. R. 188, 1878 ; Hubert v. Peo- 
 ple, 49 N. Y. 182, 1872; State v. Union, 33 
 N. 3. L. 350 (4 Vroom), where the sub- 
 ject is fully discussed. State v. Elvins, 82 
 N. J. L. (3 Vroom) 362 ; State v. New- 
 ark, 34 N. J. L. (5 Vroom) 286 ; Sedg- 
 wick Co. V. Bailey, 13 Kan. 600, 1874 ; 
 Devlin 0. New York, 63 N. Y. 8, 1875; 
 People V. Willsea, 60 N. Y. 507, 1876; 
 Tecumseh v. Phillips, 5 Neb. 805, 1877. 
 Where the act has but one general ob- 
 ject it is sufficient if the object or subject 
 is fairly expressed in the title. White v. 
 
 Lincoln, 5 Neb. 505, 1877 ; Black v. Co- 
 hen, 52 Ga. 621, 1874; Lockport v. Gay- 
 lord, 61 111. 276, 1871, where a curative 
 act legalizing warrants was held invalid 
 because it did not set forth the subject- 
 matter in the title. In Watertown v. 
 Fairbanks, 65 N. Y. S88, 1875, a legis- 
 lative act validating previous illegal 
 assessments was held to conflict with the 
 constitutional requirement that no bill 
 "shall embrace more than one subject, 
 and that shall be expressed in the title." 
 Under an act to revise the charter " of a 
 specified city," there may be conferred 
 upon the municipality the usual legisla- 
 tive, taxing, judicial, and police powers, 
 including the creation of a city court. 
 This is but one subject, and a charter with 
 such a title does not infringe the provi- 
 sion of the constitution that no local 
 bill shall embrace more than one subject 
 which shall be expressed in its title, 
 Harris v. People, 59 N. Y. 599, 1875, 
 where Folger, J., expounds the siibject 
 of this constitutional provision to be " to 
 prevent the joining of one local subject 
 to another or others of the same kind, or 
 to one or more general subjects, so that 
 each should gather votes for all ; and to 
 advise the public and the locality, and 
 the representatives of the locality and of 
 other parts, of the general purpose of the 
 bill, so that those interested might be on 
 their guard as to the whole or as to the 
 details." People v. Supervisors, 43 N. Y. 
 10. See also Sullivan v. N. Y., 53 N. 
 Y. 652, 1873; Volkening, in re, 52 N. Y. 
 650, 1873; Astor, in re, 50 N. Y. 868, 
 1872 ; Mayer, in re, 50 N. Y. 504, 1872; 
 and People v. Briggs, 50 N. Y. 553, 
 where the purpose of the constitutional 
 provision is well expounded by Church, C. 
 J. People V. Rochester, 50 N. Y. 525, 1872. 
 
n 
 
 MUNICIPAL COKPOKATIONS. 
 
 [CH. HI. 
 
 If a local aet contains a subject which is 
 properly expressed in its title it is valid 
 as to that subject although it is invalid 
 as to a Eiibjeet not expressed. Van Ant- 
 werp, in re, 56 N. Y. 261, 267, 1874. 
 
 The subject of a law to incorporate a 
 ei'ty or town is the charter of incorpora- 
 lion, and the title need not enumerate all 
 the powers intended to be conferred. 
 Lockhart v. Troy, 48 Ala. 681, 1872. 
 When the title to an act is " to consoli- 
 date and amend the several acts incor- 
 porating the city of Brunswick and for 
 other purposes therein mentioned," and 
 contains a provision to make valid and 
 confirm " all the ordinances of the mayor 
 and city council of the city of Bruns- 
 wick heretofore passed, and not in con- 
 flict with the constitution of the state of 
 Georgia or of the United States," it 
 was held that it was in violation of 
 the constitution of 1868. which declares. 
 
 "Nor shall any law or ordinance, pass 
 which refers to more than one subject- 
 matter, or contains matter different from^ 
 what is expressed in the title thereof." 
 Brieswick v. Brunswick, 51 Ga. 689, 1874. 
 And in a later case it was held that 
 the act of 1872, entitled " to prescribe 
 the manner of incorporating towns and 
 villages," not having indicated by its 
 title the provision making the act an 
 amendment of existing municipal char- 
 ters, is unconstitutional. Ayeridge v. 
 CSmmrs., 60 Ga. 404. 
 
 A statute designated in its title as an 
 amendment to a city charter, but which 
 embraces objects foreign to the charter, is 
 in conflict with the constitution and void. 
 Williamson v. Keokuk, 44 Iowa, 88, 
 1876. The judgments in the case last 
 cited would seem to be of doubtful cor- 
 rectness upon the facts. 
 
§ 52.] EXTEKT OS LEGISLATIVE CONTBOL. 73 
 
 CHAPTER IV. 
 
 PUBLIC AND PRIVATE CORPORATIONS DISTINGUISHED — LEGIS- 
 LATIVE AUTHORITY AND ITS LIMITATIONS. 
 
 §52. (29) A fundamental division oi corporations,, hexetofore 
 adverted to, is into public and private} The importance of tliis 
 distinction cannot be too much emphasized, since upon it are based 
 the legal principles which so broadly distinguish the two classes of 
 corporations. With private corporations the present work has no 
 other concern than to point out by way of illustration wherein 
 they differ from those which are public. Both classes are alike 
 created by the legislature, and in the same way, — by special 
 charter or under general incorporation acts. 
 
 Private corporations are created for private, as distinguished 
 from purely public purposes, and they are not, in contemplation 
 of law, public, because it may have been supposed by the legis- 
 lature that their establishment would promote, either directly or 
 consequentially, the public interest. They cannot be compelled 
 
 ' Ante, ch. ii. sec. 18, et seq. a private corporation. Unless there is 
 According to the view of the Supreme some special constitutional restriction the 
 Court of California, corporations should legislature of a state may regulate the 
 be divided into three classes, to wit: compensation of grain elevators and pub- 
 Fublic municipal corporations, the object lie warehouses and fix a maximum rate 
 of which is to promote the public interest; of charges. Munn ». People, 69 111. 80, 
 corporations technically private, but of a 1873. Affirmed in the Supreme Court of 
 quoii public character, having in view U. S. Munn v. People, 94 U. S. 313, 1876. 
 some public enterprise in which the public The same principle was asserted and 
 interests are involved, such as railroad, applied by the Supreme Court of the 
 turnpike, and canal companies ; and cor- United States in what is popularly known 
 porations strictly private. Miner's Ditch as the " granger " cases. Chicago, B. & Q. 
 Co u. Zellerbach. 37 Cal. 543, 1869. R. K. Co. v. Iowa, 94 U. S. 155 ; Pike ». 
 The opinion of Sawyer, C. J., in this case, Chicago & N. W. R. R. Co., 94 U. S. 
 is able and instructive. The author pre- 164 ; Lawrence ». Chicago & N. W. R. 
 fers the ordinary division of corporations Co., 94 U. S. 164 ; Chicago, M. & St. P. R. 
 into public (which includes municipal) Co. v. Ackley, 94 U. S. 179 ; Winona v. 
 and private. See Foster v. Fowler, 60 St. Peter R. R. Co., 94 U. S., 181 ; South- 
 Pa. St 27, 1868, in which a company em Minn. R. R. Co. v. Coleman, 94 U. S. 
 created to supply a city with water was 181 ; Stone v. Wisconsin, 94 U. S. 181. 
 held to be a public, as distinguished from 
 
74 MUNICIPAL COEPOKATIONS. [CH. IV 
 
 to accept a charter or incorporating act.^ The assent of the 
 corporation is necessary to make the incorporating statute oper- 
 ative ; but when assented to, the legislative grant is irrevocable, 
 and it cannot, without the consent of the corporation, be impaired 
 or destroyed by any subsequent act of legislation, unless the 
 right to do so was reserved at the time. The celebrated 
 Dartmouth College Case,^ by its construction of the federal con- 
 stitution, incorporated, wisely or otherwise, into American juris- 
 prudence the principle which hm been attended with such 
 important practical consequences, namely, that privileges and 
 franchises granted by legislative act to a private corporation, 
 when accepted, constitute a contract within the meaning of the 
 clause of the constitution which secures inviolability of contracts 
 by declaring that no state shall pass any law impairing their 
 obligation ; and hence a law materially altering the charter of 
 such a corporation is unconstitutional, unless the power to alter 
 it was reserved when the grant was made. 
 
 § 53. The purpose in making all corporations is the accomplish- 
 ment of some public good. Hence, the division into public and 
 private has a tendency to confuse and lead to error in investiga- 
 tion ; for, unless the public are to be benefited, it is no more 
 lawful to confer " exclusive rights and privileges " upon an arti- 
 ficial body than upon a private citizen. The substantial distinc- 
 tion is this : Some corporations are created by the mere will of 
 the legislature, there being no other parti/ interested or concerned. 
 To this body a portion of the power of the legislature is delegated, 
 to be exercised for the public good, and subject at all times to be 
 modified, changed, or annulled. Other corporations are the result 
 of contract. The legislature is not the only party interested; 
 for, although it has a public purpose to be accomplished, it 
 chooses to do it by the instrumentality of a second parti/. These 
 two make a contract. The expectation of benefit to the public 
 is the moving consideration on one side ; that of expected re- 
 muneration for the outlay is the consideration on the other. It 
 is a contract, and, therefore, cannot be modified, changed, or 
 annulled without the consent of both parties. Counties are an 
 instance of the former, railroad and turnpike companies of the 
 
 » Ante, see. 44. 4 "Wheat. 518. All attempts to overthrow 
 
 2 Dartmouth College v. Woodward, this judgment have failed. 
 
§ 54] EXTENT OF LEGISLATIVE CONTROL. 75 
 
 latter, class of corporations.^ This recognizes the substantial 
 
 difference between the two classes of corporations, and is, in 
 
 effect, a criticism upon the names by which they are distin- 
 guished. 
 
 § 54. (30) Public corporations are called into being at the 
 pleasure of the state, and while the state may, it need not, obtain 
 the consent of the people of the locality to be affected. The charter 
 or incorporating act of a municipal corporation is in no sense 
 a contract between the state and the corporation, although, as we 
 shall presently see, vested rights in favor of third persons, if not 
 indeed in favor of the corporation, may arise under it. Public 
 corporations within the meaning of this rule are such as are estab- 
 lished for public purposes exclusively, — that is, for purposes 
 connected with the administration of civil or local government, — 
 and corporations are public only when, in the language of Chief 
 Justice Marshall, " the whole interests and franchises are the exclu- 
 sive property and domain of the government itself," such as quasi 
 corporations (so called), counties and towns or cities upon which 
 are conferred the powers of local administration. With the excep- 
 tion of certain constitutional limitations presently to be noticed, 
 the power of the legislature over such corporations is supreme 
 and transcendent : it may erect, change, divide, and even abolish 
 them, at pleasure, as it deems the public good to require.^ 
 
 1 Milne B.Williams, 11 Ire. (Nor. Car.) body of men." S. P. Penobscot Boom 
 Law 558, 1854. Corporation v. Lawson, 16 Me. 224; 
 
 2 Dartmouth College v. Woodward, Yarmouth v. North Yarmouth, 34 Me. 
 4 Wheat. 518, 1819; Allen i». McKean, 411, 1852; Story Cora. Const., sees. 1385, 
 1 Sumner, 276, 1833 (the Bowdoin College 1388; North Yarmouth v. Skillings, 46 
 Case elaborately considered by 6'torv, J ) ; Me. 133, 1858; Girard w. Philadelphia, 
 see reference to this case, 2 Story's Life 7 Wall. 1, 1868; ante, § 9; Jersey City v. 
 and Letters, 150; Patterson v. Society, Kailroad Co., 20 N. J. Eq. 360; Rundle 
 etc., 4 Zabr. (24 N. J. L.) 885; Cheany v. v. Del. etc. Canal Co., 1 Wall. Jr., 275, 
 Hooser, 9B.Mon. 330; Berlin i>. Gorham, 8. C. 14 How. 80; Tinsman v. Railroad 
 34 N. H. 266; People v. Morris, 13 Wend. Co., 2 Dutch. (N. J.) 148 ; State v. Brannin, 
 325, 1835. In this case the defendant 8 Zabr. (23 N. J. L. ) 485 ; State ». Fuller, 
 insisted that the rights and privileges 5 Vroom (34 N. J. L.), 227; Pattersonu. 
 conferred upon the village of Ogdensburg Society, etc., 4 Zabr. (24 N. J. L.) 385 ; ante, 
 by the act incorporating it were vested sec. 44 ; State v. Jennings, 27 Ark. 419, 
 rights, and could not be impaired by sub- 1872; Clinton v. Railroad Co., 24 Iowa, 
 sequent legislation. But, said Nelson, J., 455 ; San Francisco v. Canavan, 42 Cal. 
 with his usual clearness, "It is an 541; Demarest v. New York, 71 N. Y. 
 unsound and even absurd proposition 161, S. C below, 11 Hun, 19. " A mum- 
 that political power conferred by the cipal corporation, in which is vested some 
 legislature can become a vested right as portion of the administration of the gov- 
 against the government in any individual or ernment, may be changed at the will of 
 
76 
 
 MUNICIPAL CORPOEATIONS. 
 
 [(M. IV. 
 
 § 55. The extent of the legislative control over public or muni- 
 cipal corpoiations is not impaired by the circumstance that the 
 
 the legislature. Such is a public corpora- 
 tion, used for public purposes." Per 
 McLean, J., in State Bank v. Knoop, 
 16 How. U. S. 369, 380, 1853. " Public 
 or municipal corporatiODS are established 
 for the local government of towns or 
 particular districts. The special powers 
 conferred upon them are not vested rights 
 as against the state, but, being wholly 
 political, exist only during the will of 
 the general legislature ; otherwise, there 
 would be numberless petty governments 
 existing within the state and forming 
 part of it, but independent of the control 
 of the sovereign power. Such powers 
 may at any time be repealed or abrogated 
 by the legislature, either by a general 
 law operating upon the whole state, or 
 by a special aet altering the powers of the 
 corporation." Sloan v. State (implied 
 modification of charter as to vending 
 liquor by subsequent general law), 8 
 Blackf. (Ind.) 361, 1847, per Smith, J. 
 Approving People v. Morris, 13 Wend. 
 325 ; Armstrong v. Comm. (as to removal 
 of county seat), 4 Blackf. (Ind.) 208, 
 1836 ; post, sees. 62, 183. 
 
 In the case of the United States v. 
 The Baltimore & Ohio Railroad Com- 
 pany, decided by the United States Su- 
 preme Court, 17 Wall. 322, 1872, in which 
 it was held that the general government 
 could not tax the income or property of 
 the city of Baltimore under the Internal 
 Revenue Aet {post, sec. 775), the court 
 discusses and examines the nature of 
 municipal corporations and the relation 
 they sustain to the state, of which thej' 
 are treated as arms or agencies. The 
 court says, "A municipal corporation 
 like the city of Baltimore is a representar 
 tive not only of the state, but is a portion 
 of its governmental power. It is one of 
 its creatures, made for a specific purpose, 
 to exercise within a limited sphere the 
 powers of the state. The state may 
 withdraw these local powers of govern- 
 ment at pleasure, and may, through its 
 legislature or other appointed channels, 
 govern the local territory as it governs 
 the state at large. It may enlarge or 
 contract its powers or destroy its exist- 
 ence As a portion of the state, in the 
 
 exercise of a limited portion of the pow- 
 ers of the state, its revenues, like those 
 of the state, are not subject to taxation." 
 Post, sees. 100, 773. 
 
 As to extent of legislative control, and the 
 distinction between />u{i/ic and private cor- 
 porations, see, also, People v. Wren (di- 
 vision of a county), 4 Scam. (III.) 273; 
 M«rtin v. Dix, 62 Miss. 58, 1876; Peo- 
 ple i>. Detroit, 28 Mich. 228, 1873; 8. c. 15 
 Am. Rep. 202 New Orleans etc. Co. v. New 
 Orleans, 26 La. An. 612; Coles v. Madi- 
 son County, Breese (III.), 120; Laramie 
 County V. Albany County, 92 U. S. 307, 
 1875; C. & A. R. B. Co. v. Adler, 56 lU. 
 344; State v. Brannin, 3 Zabr. (23 N.J. L.) 
 485; Badert). Road Dist., 7 Vroom (36 
 N. J. L.) 273; Bush v. Shipman, 4 Scam. 
 (5 III.) 190; HoUiday v. People, 5 Gilm. 
 (10 111.) 216; Richland County b, Law- 
 rence County, 12 111, 8 ; Trustees, etc. b. 
 Tatman, 13 111. 30 ; Gutzweller v. People, 
 14 111. 142; Sangamon County v. Spring- 
 field, 63 Bl. 66, 1872; State v. Mayor, 
 R. M. Charlt. (Ga.) 250 ; State, etc. ». St. 
 Louis County Court, 34 Mo. 546 ; Purdy 
 V. People, 4 Hill (N. Y.), 385; Morey v. 
 Newfane, 8 Barb. 646 ; Lloyd v. Mayor, 
 etc. of New York, 6 N. Y. (1 Seld.) 369; 
 Lowber v. Same, 7 Abb. Pr. R. 248; 
 Green v. Same, 5 76. 503 ; Aurora v. West, 
 9 Ind. 74 ; PlymQuth v. Jackson, 15 Fa. 
 St. 44; Louisville v. Commonwealth, 1 
 Duvall (Ky.),296; Murphy v. Louisville, 
 
 9 Bush (Ky.), 189, 1872; O'Hara v. Port- 
 land, 3 Oregon, 625; Gray i-. Brooklyn, 
 
 10 Abb. (N. Y.) Pr. Rep. N. S. 186 ; State 
 V. Hundelhausen, 26 Wis. 432, 1870; 
 Tinsman v. Railroad Company, 2 Dutch. 
 (N. J.) 148; Marietta v. Fearing, 4 Ohio, 
 427 ; Richmond!). Richmond, etc. Railroad 
 Co., 21 Gratt. (Va.) 604, 1872; State v. 
 Mayor, etc., 24 Ala. 701 ; Governor u. 
 McEwen, 5 Humph. ( Tenn. ) 241 ; Grogau 
 b. San Francisco, 18 Cal. 690; Darlington 
 V. Mayor, etc. of New York, 81 N. Y. 164 ; 
 Savings Fund Society v. Philadelphia, 31 
 Pa. St. 175, 186 ; Philadelphia o. Field, 
 
 58 Pa. St. 320 ; Erie v. Canal Company, 
 
 59 Pa. St. 174; Dunsmore's Appeal, 52 
 Pa. St. 374; Blanding v. Burr, 13 Cal. 
 843, 1859 ; People v. Hill, 7 Cal. 97, 1867 ; 
 Nichol v. Mayor, etc., 9 Humph. 252; 
 
§ 56.] EXTENT OF LEGISLATIVE CONTROL. 11 
 
 chapter is granted in the same act that creates a private corpo- 
 ration, whose rights cannot be changed without their consent.^ 
 Where, in incorporating a gas company, the legislature reserved the 
 power to alter, modify, or repeal the charter, it is competent for 
 it, by subsequent legislation, to subject the company to supervi- 
 sion and control, and to confer upon the municipal corporation 
 in which the works of the company are erected the power to 
 regulate the price of gas, and ordinances duly passed in pursu- 
 ance of such power are binding upon the company.^ 
 
 § 56. (31) Some of the leading differences heretofore generally- 
 recognized between public and private corporations are well illus- 
 trated and clearly stated in a case decided in New Jersey. In an 
 action by a riparian proprietor against a canal company, for ob- 
 structing a watel'-course, the company insisted that it was not liable, 
 because the work was authorized by its charter ; that the acts it 
 did were legal ; that the injury complained of was consequential ; 
 that the enterprise was a public work, designed for public pur- 
 poses, and that the company, in executing it, acted as the public 
 agents of the state. But the court held that the company was 
 not a public corporation. On this point Nevius, J., the organ of 
 the court, observed : " Public corporations are political corpora- 
 tions, or such as are founded wholly for public purposes, and the 
 whole interest in which is in the public. The fact of the public 
 having an interest in the works or the property or the object of a 
 corporation does not make it a public corporation. All corpo- 
 rations, whether public or private, are, in contemplation of law, 
 founded upon the principle that they will promote the interest or 
 convenience of the public. A bank is a private corporatiou, yet 
 it is, in the eye of the law, designed for public benefit. A tum- 
 
 Creighton v. San Francisco, 42 Cal. 446, act or contract invest any municipal co^ 
 1871 ; Lucas o. Tippecanoe Co., 44 Ind. poration with an irrevocable franchise of 
 524, 1873; Burns v. Clarion County, 62 government over any part oif its teiritoi'y. 
 Pa. St. 422, 1869; Durach's Appeal, lb. lb. 181; post, sees. 64, 567. 
 491 ; New Orleans v. Hoyle, 23 La. An. i Patterson v. Society, etc. 4 Zabr. (24 
 740 ; Amite City v. Clements, 24 La An. N. J. L.) 385, 1854. See, also, Baltimore c. 
 27, 1872. Board of Police, 15 Md. 376, 1859. Telyt 
 Tills subject is discussed in an inter- approved. Luehrman v. Taxing District, 
 esting manner by Sharswood, J., in his 2 Lea (Tenn.), 426. 
 learned judgment, in Philadelphia v. Fox, * State v. Cincinnati Gas Co., 18 Ohio 
 64 Pa. St. 169, 1870. The doctrine is here St. 262, 1868. See, also, Norwich Gas- 
 laid down that since the legislature can- light Co. v. Norwich City Gas Co., 25 
 not alienate any part of its legislative Conn. 19, 1856 ; State v. Milwaukee Gas- 
 power, it cannot therefore by legislative light Co., 29 Wis. 454, 1872. 
 
78 MUNICIPAL CORPORATIONS. [CH. IV. 
 
 pike or a canal company is a private company, yet the public have 
 an interest in the use of their works, subject to such tolls and re- 
 strictions as the charter has imposed. The interest, therefore, 
 which the public may have in the property or in the objects of a 
 corporation, whether direct or incidental (unless it has the whole 
 interest), does not determine its character as a public or private 
 corporation. In the present case, whatever may have been the 
 objects of the corporation, whether to erect a public navigable 
 highway, or to improve the navigation of the Raritan River, or 
 whether the public have a right to the use and enjoyment of these 
 improvements, when made, or not, the company are essentially a 
 private company, and are not [in the sense which will confer the 
 state's exemption from liability] the agents of the state. Their 
 works are not constructed by the requirement of the state, nor at 
 the expense of the state, nor does the stock belong to the state, 
 nor is the state answerable for the lands or materials used in the 
 construction of these works, or responsible for the debts of the 
 company, or for injuries committed by them in the execution 
 of their work. The state could not compel the company to con- 
 struct this canal or improve the navigation of the river ; it has 
 permitted them to do so at their own request. The company 
 might have abandoned the work whenever they saw fit ; they may 
 now abandon it without responsibility to the state. The corpo- 
 ration itself, the property of the corporation, the object of the 
 corporation, are essentially private, subject only to public use, 
 under their own restrictions, and from which use the company 
 are to derive the profits." ^ 
 
 1 Nevius, J., Ten Eyok ii. Canal Co., of the legislature and Its members, offi- 
 
 3 Harrison (N. J.), 200, 203, 1841 ; ap- cers of the government, for the adminis- 
 
 proved, Hanson v. Vernon, 27 Iowa, 28, tration or discharge of public duties, as 
 
 53, 1869. in the cases of cities, towns, etc. ; so where 
 
 In an elaborate and well-considered a bank is created by the government for 
 opinion, in which the court of appeals of its own uses, and the stock belongs ex- 
 Maryland held the regents of the university clusively to the government, it is a public 
 of that state to be a privai.e corporation, corporation ; and so of a hospital created 
 though its ends were public, Buchanan, and endowed by a government for gen- 
 C. J., delivering the judgment of the eral purposes of charity." Regents of 
 court, thus defines a ptMic corporation: University v. Williams, 9 Gill & Johns. 
 " A pufiKc corporation is one that is created (Md.) 365, 397, 1838. See, also, Norris 
 for political purposes, with political pow- v. Trustees, 7 Gill & Johns. 7. The 
 ers, to be exercised for purposes connected University of the State of Nebraska is a 
 with the public good in the administra- public corporation. Regents v. McCon- 
 tion of civil government ; an instrument nell, 5 Neb. 423, 1877 ; post, sec. 60, note, 
 of the government, subject to the control Speaking of public corporations, and the 
 
§ 57.] EXTENT OF LEGISLATIVE CONTROL. 79 
 
 § 57. (32) The adjudged cases present some contrariety of opin- 
 ion respecting the scope of legislative authority over municipal 
 corporations, or, rather, respecting the question how far such corpo- 
 rations, viewed as legal personalities, are within the operation or 
 protection of the usual constitutional restraints upon legislative 
 power. The present chapter will be devoted to a consideration 
 of this subject, which can, perhaps, be most satisfactorily presented 
 by viewing it in the light of actual adjudications, accompanied 
 with such observations as seem to be required. The extent of 
 the authority of the legislature over public corporations is strik- 
 ingly illustrated by an important case decided by the court of ap- 
 peals in the state of Maryland. The legislature in incorporating 
 a railroad company made it its duty to locate its road through 
 three towns specially named, and provided that if it failed to do 
 so, " then and in that case said company shall forfeit $1,000,000 
 to the state of Maryland for the use of Washington County." The 
 action was instituted for the benefit of the county to recover 
 the $1,000,000, it being alleged that the defendant had not 
 constructed its road in the manner required. The defendant 
 pleaded that since the last continuance the legislature had passed 
 
 relations they sustain to the state, the in Amite City v. Clements, 24 La. An. 27, 
 
 Supreme Court of Louisiana uses this 1872. 
 
 language :" The government of cities and In the opinion of the Supreme Court 
 towns, like that of the police jury of of tlie United States, holding that the 
 parishes (counties), forms one of the sub- legislature of a state might lawfully re- 
 divisions of the internal administration peal or discontinue a ferry franchise 
 of the state, and is absolutely under the granted to a municipal corporation, it is 
 control of the legislature. The laws remarked that towns and cities, '" which 
 which establish and regulate municipal are public municipal and political bodies, 
 corporations are not contracts, but ordi- are incorporated for public, and not pri- 
 nary acts of legislation, and the powers vate, objects. They are allowed to hold 
 they confer are nothing more than man- privileges or property only for public 
 dates of the sovereign power, and those purposes. The members are not share- 
 laws may be repealed or altered at the holders, nor joint partners in any corpo- 
 will of the legislature, except so far as rate estate, which they can sell or devise 
 the repeal or change may affect the rights to others, or which can be attached or 
 of third persons acquired under them." levied on for their debts. Hence, gener- 
 Pollce Jury v. Shreveport (repeal of ally, the doings between them and the 
 corporation ferry right), 6 La. An. 661, legislature are in the nature of legislation 
 1850; State Bank !i. Navigation Co. (con- rather than compact, and subject to all 
 strnction of Charter), 3 76. 294, 1848; the legislative conditions named, and 
 Reynolds w. Baldwin, 1 lb. 162 ; Haynes therefore to be considered as not violated 
 V. Municipality, 5 lb. 760 ; Edgerton v. by subsequent legislative changes." Per 
 Municipality, 1 lb. 435 ; Board v. Munici- Woodhurij, J., in East Hartford v. Hart- 
 pality, 6 lb. 21, 1851. The same doctrine ford Company, 10 How. (U. S.) 511, 531, 
 is affirmed and the supremacy of the 1860. See also Trustees u. Tatman, 13 111. 
 legislature over municipal corporations 30; New Orleans w. Hoyle, 23 La. An. 740. 
 and their funds and franchises asserted 
 
80 MUNICIPAL COEPOEATIONS. [CH. IV. 
 
 an act repealing that portion of the charter of the company requir- 
 ing it to build its road through those towns, and specially mmit- 
 ting and releasing the forfeiture of $1,000,000. The leading 
 •question, which was argued on either side by distinguished coun- 
 sel, was, whether the provision in favor of the county was 
 one of contract (the railroad company having assented to the 
 act), and hence claimed to be inviolable by legislative inter- 
 ference, or whether it was one oi penalty, and therefore subject to 
 unlimited legislative control. The^court held the latter view to 
 be the true one, and that the defendant was not liable. The 
 court also expressed the opinion that if it should be treated as a 
 contract made by the state, yet it was a contract for the benefit 
 of one of its counties, to which the money, if collected, would 
 belong, in its political and public capacity as part of the state, and 
 that such a contract did not come within the meaning of that pro- 
 vision of the national constitution which prohibits a state from 
 impairing the obligation of a contract, so as to prevent the legis- 
 lature from releasing it at pleasure, or discontinuing an action 
 brought for its enforcement in the name of the state.^ 
 
 § 58. (33) Questions have arisen under special constitutional 
 provisions respecting the authority of the legislature over munici- 
 pal offices and officers. And here it is important to bear in mind 
 the before, mentioned distinction between state officers — that is, 
 officers whose duties concern the state at large, or the general 
 public, although exercised within defined territorial limits — and 
 municipal officers, whose functions relate exclusively to the par- 
 ticular municipality. The administration of justice, the preserva- 
 tion of the public peace, and the like, although confided to local 
 agencies, are essentially matters of public concern; while the en- 
 forcement of municipal by-laws proper, the establishment of gas 
 works, of water works, the construction of sewers, and the like, 
 are matters which pertain to the municipality, as distinguished 
 
 1 State w.Eailroad Co., 12 Gill & Johns, for none exists. Coles v. Madison County, 
 
 (Md.) 399, 1842. Affirmed on error, 8 How. Breese (111.), 115; HoUiday o. People, 5 
 
 (U. S.) 534, 1844 ; C. & A. R. R. Co. v. Gilm. (10 HI.) 216 ; Conner v. Bent, 1 Mo. 
 
 Adler, 56 111. 844, 1872. 2S5 ; Rankin v. Beaird, Breese (HI.), 123, 
 
 A public corporation has no vested post, sec. 62. Effect of executive pardon 
 
 right to .^nes directed to be paid to it, and on fines going to county. HoUiday v. Peo- 
 
 the legislature may release them. Ko pie, 6 Gilm. (10 111.) 216. 
 contract in such cases is thereby violated. 
 
§58.] 
 
 EXTENT OF LEGISLATIVE CONTROL. 
 
 81 
 
 from the state at large.^ The constitution of Michigan enjoined 
 upon the legislature to " provide for the incorporation and organ- 
 ization of cities and villages, " gave it authority to confer upon 
 them such powers of a local legislative and administrative charac- 
 ter as it should deem proper, and contained the further provision 
 that "judicial officers of cities and villages shall he elected, and all 
 other [municipal] officers shall he elected, or appointed, at such 
 time and in such manner as the legislature may direct " ,■ and it was 
 held by the Supreme Court of the state, in a cause that under- 
 went great consideration, and in which the judges delivered sepa- 
 rate opinions, that while the legislature was left free to appoint 
 oiEcers not municipal, such, for example, as a board of police com- 
 missioners in and for a city, yet that it was restrained by the above- 
 mentioned provisions, especially by the one last quoted, from itself 
 directly appointing municipal officers whose duties and authority 
 were plainly and exclusively local, such as the board of water 
 commissioners and board of sewer commissioners for a particular 
 city.'^ The constitution of New Tork^ provides that municipal 
 officers shall be elected by the electors of the municipality, or ap- 
 
 1 People B. Hurlbut, 24 Mich. 44, 1871 ; 
 s. c. 9 Am. liep. 108. The distinction 
 mentioned in the text is tliere accurately 
 drawn, and clearly stated and illustrated 
 in the admirable opinion of Campbell, C. 
 J. It is approved and applied in Chicago 
 V. Wright, 69 111. 326, 1873 ; People i>. 
 Draper, 15 N. Y. 543, Denio, J. The text 
 is cited and applied in Britton v. Steber, 
 62 Mo. 370, 1876. See also People u. 
 Lynch, 61 Cat. 15, 1875; a c. 15 Am. 
 Eep. 677. Opinion of McKinstry, J., and 
 of Cooley,J., in People v. Detroit, 28 Mich. 
 228 ; s. 0. 15 Am. Rep. 202. Text ap- 
 proved. Burch V. Hardwick, 30 Gratt. 
 24; U. S. V. Memphis, 97 U. S. 284; ante, 
 sees. 19, 22, 28. See chapter on Corpo- 
 rate OfBcers, post. 
 
 2 People V. Hurlbut, supra, distin- 
 guished from People v. Mahaney, 13 
 Mich. 481 ; ante, sec. 9, and notes. In 
 People V. Detroit, 28 Mich. 228, 1873; 
 s. 0. 15 Am. Rep. the People v. Hurlbut, 
 is explained, and its doctrine adhered to, 
 and it was held that the board of park 
 commissioners for Detroit, selected by 
 the legislature without its consent, were 
 not the officers or representatives of the 
 city. So, under the constitution of Ken- 
 
 VOL. I. 6 
 
 tucky, which contains a provision that 
 " officers of towns and cities shall be 
 elected for such terms, and in such manner, 
 and with such qualifications, as may be 
 prescribed by law," and "shall reside 
 within their respective districts," it was 
 held that the legislature could not authorize 
 the governor to appoint municipal officers, 
 since the constitution requires that they 
 shall be elected by the voters of the town 
 or city (Speed v. Crawford, 3 Met. [Ky.] 
 207, 1860), but it was also likewise held 
 that it was within the power of the legis- 
 lature to pass an act depriving the mayor 
 and council of a designated city of the 
 power to elect the pdice force thereof, 
 and establishing, instead, a hoard of police 
 for the city and the county in which the 
 city was situate, to be elected by the 
 qualified voters of the city and county, 
 and that this board, thus elected, should 
 select and enroll the permanent police 
 force of the city, which, it was provided 
 should be taxed to pay them. Police 
 Commissioners v. Louisville, 3 Bush 
 (Ky.), 597, 1868. See Richmond Mayoiv 
 alty Case, 19 Gratt. (Va.) 673. 
 » Art. x., sec. 2. 
 
82 MUNICIPAL OOEPORATIONS. [CH. IV. 
 
 pointed by the authorities thereof. The purpose of this provision 
 is to secure to the political and municipal divisions of the state 
 the right of local self-government, and to prevent the legislature 
 from depriving the inhabitants of the several counties, cities, 
 towns, and villages, of the right to choose their officers.^ 
 
 It has elsewhere been held, however, that administrative agen- 
 cies and officers, such as police boards, and even boards of water 
 commissioners, park commissioners, etc., may, in the absence of 
 special constitutional limitation, b« authorized by the legislature 
 to assist in local or municipal administration.^ 
 
 § 59. Recognizing and applying the distinction in the preced- 
 ing section between state officers and municipal officers, the 
 Supreme Court of Missouri held that the mayor of a city was not 
 an officer under the state, within the meaning of a constitutional 
 provision, giving the Supreme Court jurisdiction only when tilie 
 to an office under the state is in contest.^ 
 
 § 60. (34) And it has been several times determined that 
 the legislature may, unless specially restricted in the constitu. 
 tion, take from a municipal corporation its charter powers respect- 
 ing the police and their appointment, and by statute itself directly 
 provide for a permanent police for the corporation, under the 
 control of a board of police, not appointed or elected by the cor- 
 porate authorities, but consisting of commissioners named and 
 
 1 People ». Albertson, 55 N. Y. 50, " County Court v. Griswold, 58 Mo. 
 
 1873, criticising People v. Draper, 15 N. 175, 198, 1874; People v. Draper, 15 N. 
 
 Y. 532; and People v. Shepherd, 36 N. Y. 532 ; Daily v. St. Paul, 7 Minn. 390, 
 
 Y. 286; People v. Bull, 46 N. Y. 57 ; Peo- following People v. Draper. See People 
 
 pie V. McKinney, 52 N. Y. 874, 1873, v. Albertson, 55 N. Y. 50, 187-3, where 
 
 overruling People v. Batchelor, 22 N. .Y. People v. Draper is questioned and dis- 
 
 128. And see People v. Palmer, 52 N. Y. tinguished. Stnte o. Valle, 41 Mo. 29 ; 
 
 83, 1873 ; People v. Clute, 50 N. Y. 451, State v. St. Louis County Court, 34 Mo. 
 
 1872 ; ante, sec. 9 and note. Concerning 546. Limitations on the right suggested, 
 
 the general inquiry how far right of local People v. Detroit, 28 Mich. 228, 1873; 
 
 government and municipal self-regulation, s. c. 15 Am. Pep. 202. 
 including the right of the local citizens to •< Britton v. Steber, 62 Mo. 370, 1876. 
 
 selectlocalofflcers, is rooted in our Araeri- A state officer may be connected with 
 
 can constitutions, the reader will find the some of the municipal functions, but he 
 
 opinion of Cootei/, J., in the People v. De- must derive his powers from a state stat- 
 
 troit, 28 Mich. 228, 1873 ; s. o. 15 Am. ute, and execute his powers inobedience 
 
 Rep. 202 in connection with the opin- to a state law. State v. Valle, 41 Mo. 
 
 ions in the People v. Hurlbut, 24 Mich. 29. 
 44, 1871 ; s. 0. 9 Am. Rep. 103, highly 
 instructive. 
 
§61.J 
 
 EXTENT OF LEGISLATIVE CONTROL. 
 
 83 
 
 appointed by the legislature. And a provision in such a law, 
 transfen-ing to such commissioners, for the purposes of the new- 
 police, the use of the police-telegraph, station-houses, watch- 
 boxes, etc., provided by the corporation, is valid, since it only 
 takes city property dedicated to a particular use, and applies it to 
 the same purpose, changing only the agency by which the use is 
 directed ; the property is still the city's.^ 
 
 § 61. In the absence of special constitutional restriction it is 
 competent, likewise, to the legislature of a state to direct that 
 the county shall pay a portion of the expenses of a police force in 
 a city situated wholly within, and forming part of, the county. 
 It may even direct a county to appropriate part of its revenue 
 already collected in this way, since such legislation is not uncon- 
 stitutional, as being retrospective in its operation, or as taking 
 away vested rights, or impairing the obligation of contracts, or 
 violating the principles of taxation. As moneys acquired by 
 taxation are not strictly the private property of the county, such 
 
 ' Baltimore v. Board of Pqlice (affirm- 
 ing validity to the Baltimore Police Bill), 
 15 Md. 376, 1869. There is nothing in 
 the maxim that " Taxation and represen- 
 tation go together," that can preclude 
 the legislature from establishing in a city 
 a metropolitan police board, with power 
 to estimate the expenses of the police, 
 and compelling the city authorities to 
 raise, by taxation, the amount so esti- 
 mated. Every (4ty is represented in the 
 state legislature, and it is for that body 
 to determine how much power shall be 
 conferred by the municipal charters which 
 it grants. People v. Mahaney, 13 Mich. 
 481 ; see also same principle. People v. 
 Draper, 15 N. Y. 532, 1857, where the act 
 to establish the metropolitan police dis- 
 trict was held constitutional; but see 
 People V. Albertson, 55 N. Y. 50, 1873, 
 where People v. Draper is questioned and 
 distinguished, and People v. Shepherd, 
 36 N. Y. 285, is doubted ; People v. Mc- 
 Donald, 69 N, Y. 362, 1877. Text ap- 
 proved. Burch I). Hardwick, 80 Gratt. 
 24; Police Commrs. o. Louisville, 8 
 Bush, 597 ; Diamond v. Cain, 21 La. 
 An. 809, 1869; State v. Leovy, 76.538. 
 The cases concur in holding that police 
 officers are, in fact, state officers and not 
 municipal, although a particular city or 
 
 town be taxed to pay them. Post, ch. 
 xxiii. An act which makes the mayor 
 and aldermen of a corporation commis- 
 sioners of the court-house and jail -may 
 be repealed by the legislature, and these 
 buildings placed under the control of 
 county or other officers. State v. Mayor, 
 R. M. Charlt. (Ga.) 250; see also State 
 V. Dews, lb. 397. A grant to a city 
 to aid in building court-house, and for 
 educational purposes, is subject, until 
 executed, to legislative resumption and 
 control. Bass o. Fontleroy, 11 Texas, 
 698. In the absence of constitutional 
 restriction the legislature may directly 
 appoint officers to act within the munici- 
 pality. Hudson, etc. Co. v. Seymour 
 (highway commissioners), 6 Vroom, 35 
 N. .7. L. 47. 
 
 The management and mode of electing 
 trustees of an incorporated academy, which 
 is endowed entirely by the state, may be 
 changed by the legislature at its pleasure. 
 Dart V. Houston, 22 Ga. 506; see also 
 University of North Carolina v. Maultsby, 
 8 Ire. Eq. 257 ; University of Alabama 
 V. Winston, 5 Stew. & Port. 17; Louis- 
 ville 0. University of Louisville, 15 B. 
 Mon. 645; Visitors, etc. v. State, 15 Md. 
 880 ; Regents v. McConnell, 5 Neb. 423, 
 1877. 
 
84 MUNICIPAL CORPORATIONS. [CH. IV. 
 
 legislation is not the application of private property to public use 
 vi^ithout compensation, since the police board, by virtue of the 
 act creating it, was an agency of the state government and per- 
 formed public duties.^ In Indiana the majority of the court held 
 that such is the legislative power over counties and their prop- 
 erty paid for by taxation that the General Assembly may con- 
 stitutionally enact a law to take railroad stock from the county 
 after it has been subscribed and paid for out of funds raised by 
 taxation, and transfer it to those from whom the money was col- 
 lected, and in the event they do not apply for it, to vest it in 
 townships for school purposes.'^ 
 
 § 62. (35) The legitimate authority of the legislature over 
 municipal corporations extends to making provisions concerning 
 their funds and revenues,^ and the authority is not abridged be- 
 cause the purpose to which the revenue is to be appropriated is 
 specified in the charter ; and the ground of the doctrine is that 
 such corporations have no vested rights in powers conferred upon 
 them for civil, political, or administrative purposes. Thus, the 
 legislature may repeal the power it had given to cities to grant 
 licenses for the sale of intoxicating liquors, although the money 
 
 to be derived from the sale of such licenses was directed to be 
 
 * 
 
 1 State ex rel. St. Louis Police Com- School districts, being public corpora- 
 
 mrs. V. St. Louis County Court (man- tions, under legislative control, a law pro- 
 
 damus), 34 Mo. 546, 1864; contra, Tiding that school debts may be paid in 
 
 Mayor, etc. i>. Tows, 5 Sneed (Tenn.), bills of the state bank of the state, is valid 
 
 186. The view of the Supreme Court of as against the objection that the legisla- 
 
 Missouri is undoubtedly the correct one. tnre had no power to direct that anything 
 
 Approved. St. Louis v. Shields, 62 Mo. except gold and silver should be received 
 
 351, 1873; People t. Morris, 13 Wend, in payment of debts. Bush v. Shipraan, 
 
 325; Sangamon Co. b. Springfield, 63 III. 4 Scam. (5 111.) 190. 
 
 66; Weymouth, etc. Fire Dist. v. Co. A municipal corporation may constitu- 
 
 Commrs., 108 Mass. 142; Stilz i^. Indian- tionally he exempted from prospectiie liability 
 
 apolis, 56 Ind. 516. for nonfeasance of its officers or liability 
 
 The maintenance of a police force may for torts. Gray v. Brooklyn, 10 Abb. Pr. 
 be committed to the corporate autliorities R. N- S. 186 ; post, ch. xxiii. 
 of a municipality, and if there are no '- Lucas u. Tippecanoe Co., 44 Ind. 524, 
 special constitutional restrictions on the 1873 ; Downey, Worden, and Osbom, JJ., 
 power of the legislature, it may authorize concurring, Buskirlc and Peltit, JJ., dis- 
 the assessment of a tax upon the keepers senting. The opinions are elaborate, and 
 of saloons and restaurants in the munici- refer to the leading authorities on the 
 pality for the purpose of maintaining subject. The dissenting judges consider 
 such police force therein, to be levied and Spaulding v. Andover, then recently de- 
 collected as other taxes. Durach's Appeal, cided by the Supreme Court of New 
 62 Pa. St. 491, 1869 ; post, sees. 746, 750, Hampshire, as strongly sustaining their 
 793 ; Railroad Co. v. Adler, 56 Dl. 844, views. 
 1870. ^ Ante, sees. 67, 60, and notes. 
 
§63.] 
 
 EXTENT OF LEGISLATIVE CONTROL. 
 
 85 
 
 appropriated to the support of paupers within the city.^ Such 
 an authority, it was remarked, " gives the city no more a vested 
 right to issue licenses, because the legislature specified the ob- 
 jects to which the money should be applied, than if it had been 
 put into the general fund of the city." ^ 
 
 § 63. (86) Legislative acts respecting municipal corporations 
 not being in the nature of contracts, the provisions thereof may 
 be changed at pleasure where the constitutional rights of creditors 
 and others are not invaded. By act of the legislature the sepa- 
 rate city of Lafayette was added to and incorporated with the 
 city of New Orleans, with a provision that the added district, 
 which was less in debt than the city of New Orleans, should be 
 charged only with its own debts ; and by a subsequent act of the 
 
 1 Gutzweller v. People, 14 Ul. 142, 
 1852 ; ante, sec. 54, note. 
 
 a Gutzweller v. People, 14 111. 142, 
 1852, per Caton, 3. See, also, Richland 
 Co. V. Lawrence Co., 12 111. 1, 1850; 
 adhered to, Sangamon Co. v. Springfield, 
 63 111. 71, 1872; Spaulding v. Andover 
 (full discussion by Foster, J. ), 54 N. H. 
 38, 1871 ; Home Ins. Co. v. City Council, 
 93 U. S 116, 1876; People v. Super- 
 visors, 50 Cal. 561 ; People v. Power, 25 
 111. 187 ; Richmond v. Richmond, etc. Rail- 
 road Co., 21 Gratt. (Va.) 604, 1872, hold- 
 ing that the state may exempt property 
 from municipal taxation. By the charter 
 of a municipal corporation there was 
 granted to it sole power to grant licenses 
 to sell spirituous liquors within its limits, 
 and to appropriate the money arising 
 therefrom to city purposes. Subsequently 
 the legislature passed an act directing 
 the money thus raised to be paid by the 
 corporation to an academy located within 
 the town. The municipal corporation re- 
 fused to pay over to the academy an 
 amount received for licenses after the 
 passage of the last-named act, and the 
 academy brought an action to recover 
 it. The court held, the subsequent act 
 to be unconstitutional, and that the town 
 was not liable. The court were of opin- 
 ion, that, by its charter, the town had a 
 vested right in the profits arising from 
 licenses. It admitted that the legislature 
 might altogether take away from the 
 town the power to grant licenses ; but if 
 
 it allowed the power to remain, it denied 
 the right of the legislature " to make a 
 different disposition of the funds arising 
 from such licenses, from that contained 
 in the charter, unless with the consent of 
 the corporation." Trustees of Aberdeen 
 Academy v. Aberdeen, 13 Sm. & Marsh. 
 (21 Miss.) 645, 1850. See, also, Aber- 
 deen V. Saunderson, 8 lb. 663. The doc- 
 trine that the town corporation had a 
 vested right in profits arising from li- 
 censes, cannot, we think, be sustained, 
 and is not in harmony with the decisions 
 elsewhere. Indianapolis v. Indianapolis 
 Home, etc., 50 Ind. 215, 1875. 
 
 Citt/, county, and township funds are un- 
 der legislative control. County w. State, 
 11 III. 202 ; County v. County, 12 111. 1 ; 
 Dennis «. Maynard, 15 III. 477 ; Love c/. 
 Schenck, 12 Ire. Law, 304 ; Love v. Ram- 
 sour, n. 328 ; Youngs v. Hall, 9 Nev. 212, 
 1874; People v. IngersoU, 58 N. Y. 1 ; 
 People V. Fields, 58 N. Y. 491, 1874; 
 Home Ins. Co. v. City Council, 93 U. S. 
 116, 1876 ; ante, sec. 57, note ; Indianapo- 
 lis V. Indianapolis Home, etc. 50 Ind. 215, 
 1875. The Indianapolis Home for Friend- 
 less Women is so far a public corporation, 
 or institution, that an appropriation by the 
 legislature of fines, collected for the viola- 
 tion of certain city ordinances, to its sup- 
 port, is not the appropriation of money to 
 a private purpose. (Lucas v. Board, etc., 
 44 Ind. 524) ; Indianapolis v. IndianapoUs 
 Home, etc., 50 Ind. 215, 1875. 
 
86 MUNICIPAL COEPOEATIONS. [CH. IV. 
 
 legislature it was provided that taxes should be equal and uni- 
 form throughout the entire limits of the city ; the effect of which 
 was to increase the amount of taxes to be raised within that por- 
 tion of the corporation which was formerly the city of Lafayette. 
 A bill was filed by residents and property owners of the annexed 
 district to enjoin the collection of the excess of taxes beyond the 
 amount fixed by the act incorporating the annexed district into 
 the " old ciifcy," claiming that the act was a contract, and the 
 levy of taxes under the latter adt, so far as regards debts due 
 antecedently to the annexation, violated the vested rights of the 
 inhabitants of the annexed district. The Supreme Court, on the 
 ground that public corporations are wholly under the control of 
 the legislature, which has the power to provide in what manner 
 taxes shall be levied for their support, and how their debts shall 
 be paid on their dissolution, held the act authorizing increased 
 taxation to be valid, and dismissed the bill.^ So where, after a 
 contract for paving streets had been made, but before it was 
 fully executed, certain wards were added to the city (in which 
 wards, however, no part of the paving was ever done), and no 
 provision as to the debts of the corporation was made in the act 
 of annexation, it was held that the legislature might afterwards 
 constitutionally enact, as against the contractor, that the people 
 within the wards thus added should not be taxed to pay any 
 part of the debt of the city contracted prior to the passage of the 
 act by which they were brought within the limits of the corpora- 
 tion.2 And the same principle was asserted by the Supreme 
 
 ^ Layton v. New Orleans, 12 La. An. that it was beyond the competency of 
 
 515, 1857. See, also, Girard v. Philadel- the legislature to assess lands in the town 
 
 phia, 7 Wall. 1, 1868 ; People v. Hill, 7 of Flatbush to pay debts previously in- 
 
 Cal. 97, 1857 ; past, ch. viii. ; State B.Flan- curred by the adjoining city of Brooklyn 
 
 ders, 24 La. An. 57 ; U. S. ea; rd. Brown under prior acts for a park, although the 
 
 ». Memphis, 97 U. S. 300 ; Vance p. Little portion of the park was carved out of 
 
 Bock, 80 Ark. 435, 439, 1875. Citing text, the corporate limits of Flatbush. MiUer, 
 
 Sedgwick Co. v. Bailey, 11 Kan. 631, 187-3 ; J., after stating that had an original as- 
 
 San Francisco v. Canavan, 42 Cal. 541, sessment for benefits been made it might 
 
 1872. A' statute extinguishing one cor- be said to be an assessment for public use 
 
 poration and throwing its obligations on and enforceable as such, says, " But 
 
 another raises an implied promise on such is not this case . . . There is no 
 
 the part of the successor to pay the same, principle that I am aware of which sano- 
 
 Little V. Union Township Committee, 40 tions the doctrine that it is within the 
 
 N. J. L. 897. taxing power of the legislature to compel 
 
 2 United States ex rel. Brown v. Mem- one town, city, or locality to contribute 
 
 phis, 97 U. S. 300, 1877 ; town of Flat- to the payment of the debts of another, 
 
 bush, in re, 60 N. Y. 398, 1876 ; the The government has . no such authority, 
 
 court of appeals expressed the opinion and this case is entirely without a pre- 
 
§ 65.] EXTENT OF LEGISLATIVE CONTROL. 87 
 
 Court of the United States, which held to be valid a legislative 
 act by which the city of CarroUton was annexed to New Orleans, 
 with a provision that the latter city should succeed to all the 
 rights and property, and assume and pay all of the debts of the 
 former.^ 
 
 § 64. (37) The power of the legislature to alter and abolish 
 municipal corporations, to erect new corporations in the place of 
 the old, to add to the old, or to carve out of the old a new cor- 
 poration, or the power to divide and dispose of the property held 
 by such corporations for municipal purposes, is not defeated or 
 affected by the circumstance that the corporation is, by its char- 
 ter, made the trustee of a charity, or of other private rights and 
 interests. Where the legal existence of the municipal trustee is 
 destroyed by legislative act, the Court of Chancery will assume 
 the execution of the trust, and, if necessary, will appoint new 
 trustees to take charge of the property and carry into effect the 
 trust.2 
 
 § 65. (38) The supremacy of the legislative authority over mvr 
 nicipal corporations is not, however, in all respects, unlimited ; but 
 the limitations must be sought either in the national or state 
 constitution ; and if not there found, in terms or by fair implica- 
 tion, they do not exist. In England, it is settled that the crown 
 has no power, without the consent of those to be affected thereby, 
 to alter or abolish municipal charters, or to impose new ones on 
 the corporation. But Parliament may create new corporations, 
 or abolish or alter charters, or impose new ones, at its will, and 
 without the consent of the inhabitants. And so may the state 
 
 cedent If such assessments were author- 1868 ; Philadelphia v. Fox, 64 Pa. St. 
 
 ized they might not be limited to 169, 1870 ; Montpelier v. East Montpelief 
 
 adjoining towns, cities or villages, but (division of town and contest as to trust 
 
 applied to those located at great distances property held for the benefit of the in- 
 
 from each other. Such legislation would habitants of the original township), 29 
 
 be unjust, mischievous, and oppressive, Vt. (3 Wms.) 12, 1856; same con- 
 
 and cannot be tolerated." See post, sec. troversy at law, 27 Vt. 704. See in- 
 
 43 and notes. fra, sec. 80, and chapters on Corporate 
 
 1 New Orleans ». Clark, 95 U. S. 644, Property and Remedies against Illegal 
 
 1877. Such legislation is not within the Corporate Acts, post. Text approved, 
 
 prohibition of the state constitution Lnehrman v. Tax. Dist., 2 Lea (Tenn.), 
 
 against the passage of retroactive laws. 425 ; Ellerman o. McMains, 30 La. An. 
 
 lb. 190 ; Cincinnati v. Cameron, 33 Ohio St. 
 
 3 Girard ^. Philadelphia, 7 Wall. 1, 836. 
 
88 MUNICIPAL COKPOKATIONS. [CH. IV. 
 
 legislatures in this country, if there be no special constitutional 
 restriction, as generally there is not, upon the power.^ 
 
 § 66. (39) It may assist to an understanding of the extent of 
 legislative power over municipal corporations proper (incorporated 
 towns and cities) to observe that these, as ordinarily constituted, 
 possess, according to many courts, a double character: the one 
 governmental, legislative, or public ; the other, in a sense, proprie- 
 tary or private. The distinction between these, though sometimes 
 difficult to trace, is highly important, and is frequently referred 
 to, particularly in the cases relating to the implied or common 
 law liability of municipal corporations for the negligence of their 
 servants, 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 iiastruments, or 
 the local depositary of certain limited and prescribed political 
 powers, to be exercised for the public good on behalf of the state, 
 and not 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, political, or governmental 
 
 1 St. Louis V. Allen (extension of city the legislature for the public benefit, and 
 limits), 13 Mo. 400, 1850; St. Louis v. for acts done in what may be called their 
 Russell, 9 Mo. 503, 1846. It is justly ob- private character, in the management of 
 served, that " most, if not all, of the lead- property and rights voluntarily held by 
 ing cases in the boolcs, involving the them for their own immediate profit or 
 question of the inviolability of municipal advantage, as a corporation, although 
 charters, in the English courts, arose be- inuring, of course, ultimately to the ben- 
 tween the prerogative of the crown and the efit of the public." Per Gray, J., in Oli- 
 corporation. The right or power of par- ver v. Worcester, 102 Mass. 489, 499, 
 liament in England, or of the legislature 1869; s. p. Detroit o. Corey, 9 Mich, 
 here, would present (and was decided to 165, 184, 1861 ; Hill v. Boston, 122 Mass. 
 present) quite a different question." Per 344, 859 ; s. c. 23 Am. Rep. 332. In the 
 Nelson, J., in People v. Morris, 13 Wend, one case, no private action lies unless it 
 325, 384, 1835 ; Philadelphia v. Field, 58 be expressly given ; in the other, there 
 Pa. St. 320, 1868; Hudson County «• Sey- is an implied or common law liability for 
 mour, 6 Vroom (35 N. J. L.), 47 ; People v. the negligence of their officers in the dis- 
 Bennett, 29 Mich. 451, 1874 ; s. c. 18 Am. charge of such duties. In further illus- 
 Rep. 107 ; Austin v. Coggeshall, 12 E. I. tration of this alleged dual character, the 
 329, citing and approving text. reader is referred to the cases cited in 
 
 2 Ante, sees. 22, 25, 28. " The dis- the next note. See reference to this 
 tinction is well established between the section of the text in Spaulding v. An- 
 responsibilities of towns and cities for dover, 54 N. H. 38, 54, 1873 ; post, ch. 
 acts done in their public capacity, in the xxiii. 
 
 discharge of duties imposed on them by 
 
§ 67.] EXTENT OF LEGISLATIVE CONTEOL. 89 
 
 powers, the authority of the legislature is, in the nature of things, 
 supreme and without limitation, unless the limitation is found in 
 some peculiar provision of the constitution of the particular state. 
 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 particular corpora- 
 tion as a distinct legal personality ; and as to such powers, and to 
 property acquired thereunder, and contracts made with reference 
 thereto, the corporation is to be regarded as quo ad hoc a private 
 corporation, or at least, not public in the sense that the power 
 of the legislature over it is omnipotent.-' 
 
 § 67. This division of the powers and duties of a municipal 
 corporation into two classes, one public and the other private, 
 has been before alluded to, and is, to our mind, far from satisfac- 
 tory ; and the private character thus ascribed to it, difficult exactly 
 to comprehend. In what sense are powers conferred and to be 
 exercised for the good of all the people of the place, private ? 
 Wherein do such powers, in their origin or nature, differ from 
 those admitted to be public ? Are not all powers conferred upon 
 municipalities, whether many or few, given, and given only, for 
 their better regulation and government, and to promote their 
 welfare as parts of the state at large ? The small municipahty, 
 with few and simple powers, is no more completely under the 
 
 1 West. Sav. Fund Soc. v. Philadel- B. Mon. 642; Louisville t'. Common- 
 
 pliia, 31 Pa. St. 175; lb. 185; Bailey w. wealth, 1 Duvall (Ky.), 296; Weightman 
 
 Mayor, etc. of New York, 3 Hill, 531; v. Washington, 1 Black (U. S.), 39, 1861 
 
 People V. Fields, 58 N. Y. 491 ; People ». Beading v. Commonwealth, 11 Pa. St, 
 
 Ingersoll, 58 N. Y. 1, 1874 ; Maxmillian 196, 1849 ; Richmond v. Long's Admr., 
 
 V. Mayor, etc. of New York, 62 N. Y. 17 Gratt. (Va.) 375; De Voss v. Rich- 
 
 160, 1875. People v. Briggs, 50 N. Y. mond, 18 Gratt. 338 ; s. c. 7 Am. Law 
 
 553, 560, 1872; Nichol v. Nashville, 9 Reg. (N. S.) 689; New Orleans, etc. B, 
 
 Humph. 252 ; Small o. Danville, 81 Me. R. Co. v. New Orleans, 26 La. An. 478 ; 
 
 359 ; Jones «. New Haven, 34 Conn. 1 ; s. c. lb. 517, 1874 ; Askew v. Hale Co., 64 
 
 Western College v. Cleveland, 12 Ohio Ala. 639; Detroit v. Corey, 9 Mich. 165, 
 
 St. 375, 1861 ; Howe v. New Orleans, 12 184, 1861 ; People v. Hurlbut, 24 Mich. 
 
 La. An. 481 ; Martin v. Mayor, etc., 1 44, 1871, opinion of Coohy, J. ; s. c. 9 Am. 
 
 Hill, 545; Buttriok v. Lowell, 1 Allen, Rep. 103; People v. Detroit, 28 Mich. 
 
 172 ; Oliver v. Worcester, 102 Mass. 489, 228, 1873 ; s. c. 15 Am. Rep. 202. As to 
 
 1869 ; Touchard v. Touchard, 5 Cal. 306 ; what are municipal duties, and what falls 
 
 Gas Co. V. San Francisco, 9 Cal. 453 ; within the scope of municipal powers, see 
 
 Commissioners ;;. Duckett, 20 Md. 468 ; United States v. Baltimore & Ohio Rail- 
 
 Weet V. Brockport, 16 N. Y. 161, note ; road Co., 17 Wall. 332, 1872 ; post, sec. 
 
 Louisville v. University of Louisville, 15 775, ch. xxiii, el seq. 
 
90 MUNICIPAL COEPOKATIONS. [CH. IV. 
 
 supreme dominion of the legislature than the more populous one, 
 requiring for its proper government organs and powers peculiar 
 to itself. Are the latter, therefore, private ? If so, it must be in 
 a qualified and peculiar sense.^ Contracts in favor of the creditor 
 are protected by the national constitution ; but as against a state, 
 what private powers and rights can a municipal corporation be 
 said to have, when it is within the power of the state, which 
 breathed into it the breath of life, utterly to extinguish its exist- 
 ence at pleasure ? The distinctiontoriginated with the courts, to 
 promote justice and to escape technical difficulties in order to 
 hold such corporations liable to private actions.^ 
 
 § 68. (40) It is, perhaps, at present, impossible to state, with 
 confidence, what limitations exist upon the power of the legislature 
 over municipal corporations, as ordinarily constituted. It is 
 practicable only to refer to the leading cases upon the subject, 
 and attempt to extract the principles upon which they rest. 
 
 It is decided that a grant by the legislature of the state to a 
 town, of the right to establish a ferry, is not in the nature of a 
 contract, hence the grant is repealable, and the corporation may 
 constitutionally be deprived of the franchise.^ So an act confer- 
 ring upon a municipal corporation a public trust, and the title to 
 
 1 Ante, sees. 25, 26. ture may compel a municipal corporation 
 ^ On this subject, the opinion of to submit to arbitration claims as to which 
 Chief Justice Denio, in Darlington v. private corporations and natural persons 
 Mayor, etc., 31 N. Y. 164, 1865, may be would be entitled by the constitution to a 
 read with profit. The chief justice trial by jury. The opposite view is no- 
 there asserts the unlimited power of the where more ably presented than by Camp- 
 legislature over municipal corporations bdl, C. J., in the People v. Hurlbut, 24 
 and their property. He maintains that Mich. 44, 1871 ; g. c. 9 Am. Bep. 108, and 
 such corporations are altogether pub- by Cooley, J., in People v. Detroit, 28 
 lie, and all their rights and powers Mich. 228, 1873 ; s. c. 15 Am. Bep. 202 ; 
 public in their nature, and that their Gray v. Brooklyn, 10 Abb. Pr. Rep. N. 
 property, though held for income or sale, S. 186 ; post, ch. xxiii. See as to jury, 
 and unconnected with any use for the Dunsmore's Appeal, 52 Pa. St. 374. 
 purposes of the municipal government, is Consult on this subject : Plimpton v. Som- 
 under the control of the legislature, and erset, 88 Vt. 283, 1860. See also chap- 
 not within the provisions of the constitu- ters on Municipal Courts, Property, and 
 tion protecting private property. He denies Ordinances, poa. 
 
 the correctness of the distinction taken » East Hartford v. Hartford Bridge 
 
 inBaileyw. the Mayor, etc. of New York, Co., 10 How. 511, 1850; s. c. 16 Conn. 
 
 3 Hill, 631, and other cases, between the 149 ; 17 76. 79 ; Trustees v. Tatman, 13 
 
 public and private functions of city gov- 111. 30 ; Police Jury v. Shreveport, 5 La. 
 
 ernments, and maintains that, as respects An. 661, 1850 ; Darlington v. Mayor, 31 
 
 the state, all their powers and functions N. Y. 164, 202, 203, per Demo, C. J. 
 are public. He affirms that the legisla- 
 
§ 68.] EXTENT OF LEGISLATIVE CONTROL. 91 
 
 land as ancillary to its execution, is not a contract, but may be 
 repealed at the will of the legislature.^ But suppose the legis- 
 lature had granted in fee to the corporation a tract of land within 
 its limits, is such a grant, or an ordinary grant of land to the 
 corporation, from others, a contract as respects the state, and pro- 
 tected by the constitution from legislative invasion, the same as 
 if the grant had been made to, or the property acquired by, an 
 individual or private corporation ? The question thus stated has 
 never arisen directly for adjudication in the Supreme Court of 
 the United States ; but, in the celebrated Dartmouth College 
 Case, two of the judges expressed the opinion that the legislative 
 control over public and municipal corporations was not so tran- 
 scendent and absolute as to .extend to an arbitrary divestiture of 
 its private property and the destruction of rights of a private na- 
 ture. On the other hand, it is the opinion of a distinguished and 
 able judge in New York, in a case already mentioned, that the 
 authority of the legislature over the powers, rights, and property 
 of municipal and public corporations, is, as respects the corpora- 
 tions, quite without limit.^ The weight of opinion seems to be 
 in favor of the doctrine that there may be, in such corporations, 
 rights under contracts and grants which are beyond destruction 
 by the legislature, though not beyond legitimate legislative au- 
 thority and control ; ^ but in the present state of the decisions the 
 subject cannot be fairly said to be settled. 
 
 1 People V. Vanderbilt, 26 N. Y. 287, and might resume or change the purposes 
 
 1863 ; post, sec. 114. Where an act in- for wliich it was originally designed to 
 
 corporating a city donated lands included be expended, or provide for the payment 
 
 therein, for the erection of certain public by an old county, which had received, 
 
 buildings, and the residue to be applied but not expended, its proportion of such 
 
 to education, and the charter was after- fund, to a new county erected out of the 
 
 wards repealed, it was held that until the old county of an equitable share of the 
 
 trust had been executed it was competent fund. Kichland County v. Lawrence 
 
 for the legislature to change or abolish it. County, 12 111. 1, 1850, distinguished from 
 
 and that the repeal of the charter extin- Hampshire v. Franklin, 16 Mass. 76. Post, 
 
 guished the trusts, they being public, un- ch. viii. 
 
 executed, and conditional. Bass v. Font- ^ j)enio, C. J., in Darlington v. New 
 
 leroy, 11 Tex. 698-708, 1854. Where York, 31 N. Y. 164, 1865. 
 
 an act of the legislature, instead of grant- ' In Bichland County v. Lawrence 
 
 ing certain moneys received by the state County, 12 111. 1, 1850, while the plenary 
 
 for the purposes of internal improvements power of the legislature over the public, 
 
 to certain counties absolutely, simply ap- civil, or political rights of public corpo- 
 
 propriated it to be drawn by such counties rations was asserted and declared, still it 
 
 and expended by them in the improve- was admitted by the very able and cau- 
 
 mentof roads, etc., it was held that before tious judge who delivered the opinion, 
 
 its expenditure by the counties the legis- that " the state' may make a contract 
 
 lature had entire control over the fund, with, or a grant to, a public municipal 
 
92 
 
 MUNICIPAL COEPOKATIONS. 
 
 [CH. IV. 
 
 § 69. (41) It is an interesting inquiry, which has not yet 
 arisen for judgment, whether the legislature of the state has the 
 
 corporation which it could not subse- 
 quently resume; but in such case the 
 corporation is to be regarded as a private 
 company." Per Trumbull, 3. Sangamon 
 Co. V. Springfield, 63 111. 66, 1872. See 
 West. Sav. Fund Society b. Philadelphia, 
 81 Pa. St. 175; lb. 185. 
 
 "But while the legislative power (to 
 enlarge, restrain, or even destroy munici- 
 pal corporations, as the public interest 
 may require) may be exercised over pub- 
 lic and municipal corporations, it has as 
 uniformly been held that towns, and other 
 public corporations, may have private rights 
 and interests vested in them under their char- 
 ter ; and as to those rights, they are to be re- 
 garded and protected the same as if they 
 were the rights and interests of individuals or 
 of private corporations, and grants of prop- 
 erty in trust for other than corporate and 
 municipal use ( that is, as we understand, 
 for private, as distinguished from public, 
 purposes) are no more the subject of 
 legislative control than are the private 
 and vested rights of individuals." Per 
 Isham, J., arguendo, in Montpelier v. East 
 Montpelier, 29 Tt. (3 Wms.) 12, 19, 1856 ; 
 8. c. 27 lb. 704. 
 
 Legislative grants of property to private, 
 and it seems, also, to public and municipal 
 corporations, cannot be repealed so as to divest 
 the rights of the grantees. Town of Pawlet 
 V. Clark, 9 Craneh (U. S.), 292, 386, 1815, 
 per Story, J., obiter; Terret v. Taylor, lb. 
 43, 52. In this last case, Mr. Justice 
 ■Story remarks, arguendo: "In respect, 
 also, to public corporations, which exist 
 only for public purposes, such as counties, 
 towns, cities, etc., the legislature may, 
 under proper limitations, have a right to 
 change, modify, enlarge, or restrain them, 
 securing, however, the property, for the uses 
 of those for whom and at whose expense 
 it was originally purchased." Followed 
 by Chancellor Kent, 2 Com. 305 ; by Mr. 
 Justice Washington, Dartmouth College 
 Case, 4 Wheat. 518, 663. In the last 
 case, Mr. Justice Story said : " But it will 
 hardly be contended, that even in respect 
 to such [public] corporations, the legisla- 
 tive power is so transcendent that it may, 
 at its will, take away the private property 
 of the corporation, or change the uses of 
 
 its private funds acquired under the pub- 
 lic faith." 4 Wheat. 518, 694, obiter. 
 And such is Mr. Justice Cooky's view in 
 his valuable treatise. Constitutional Lim- 
 itations, 238. He reiterates it in his 
 learned opinion in People v. Hurlbut, 24 
 Mich. 44 ; s. o. 6 Am. Law Eev. 376, 
 1871 ; s. c. 9 Am. Rep. 103, and also his 
 elaBorate judgment in the important case 
 of the People v. Detroit, 28 Mich. 228, 
 1873 ; s. c. 15 Am. Rep. 202. In Grogan 
 V. San Francisco, 18 Cal. 590, Mr. Chief 
 Justice Field, delivering the opinion of the 
 Supreme Court of California, takes the 
 ground that the real estate or private prop- 
 erty of a municipal corporation is protected 
 by the clause in the national constitution 
 securing the inviolability of contracts ; 
 that all legislative authority over it must 
 be exercised in subordination to this 
 guaranty, and that it is subject to legis- 
 lative control to the same extent, but no 
 greater extent, than all other property in 
 the state. But in Darlington v. Mayor, 
 etc., of New York, 31 N. Y. 164, 193, 205, 
 Mr. Chief Justice Denio observes: "Let 
 us suppose the city to be the owner of a 
 parcel of land not adapted to any muni- 
 cipal use, but valuable only for sale to 
 private persons for building purposes, or 
 the like ; no one, I think, can doubt but 
 what it would Ije competent for the legis- 
 lature to direct it to be sold, and the pro- 
 ceeds devoted to some municipal or other 
 public purpose, within the city, as a court- 
 house, a hospital, or the like It is 
 
 unnecessary to say whether the legisla- 
 tive jurisdiction would extend to divert- 
 ing the city property to other public use 
 ■than such as concerns the city and its 
 inhabitants." And he considers the ex- 
 pression of Chancellor Kent (2 Com. 305) 
 and of Mr. Justice Story, that where a 
 municipal corporation is empowered to 
 have and to hold private property, such 
 property is invested with the security of 
 other private rights, to mean only that 
 it possesses such rights against wrong- 
 doers, and not that it is exempt from 
 legislative control. 31 N. Y. 164, 196. . 
 
 In two eases arising out of the Tweed 
 frauds in New York, the conclusion was 
 reached that, as between the state and 
 
§ 69.] EXTENT OF LEGISLATIVE CONTROL. 93 
 
 right, in virtue of its control over municipal corporations, to annul 
 or interfere with contracts between two municipalities. If a 
 municipal corporation, however, becomes indebted, the rights of 
 the creditors cannot, it is clear, be impaired by any subsequent 
 legislative enactment.^ Thus, where an act of the legislature was 
 passed to provide for the payment of the debts of a municipal 
 corporation and authorizing the creation of a sinking fund, to be 
 deposited and applied in a particular manner, and where credi- 
 tors acting thereunder have surrendered the evidences of their 
 debts and received new bonds, for the payment of which the 
 fund stands pledged by the act, it is not competent — because 
 it impairs the obligation of contracts — for a subsequent legisla- 
 ture, in providing for the liquidation of the corporate debts, to 
 give a different destination to the sinking fund by changing the 
 depository of the fund.^ 
 
 So where the effect of an act of the legislature authorizing a city 
 to fund its floating debt was, in substance, a pledge to those 
 who surrendered their claims and received new obligations, 
 of a portion of its revenues and property, to be applied to 
 the payment of its obligations in a specified mode, this, if 
 acted on, constitutes a contract which cannot be materially 
 altered, either by the municipality or the legislature, without 
 
 the municipal corporation, the funds of * Van Hoffman v. Quinoy, 4 Wall, 
 the corporation owned and held for the 535, 1866 ; Butz v. Muscatine, 8 lb. 575 ; 
 public uses of the corporation are dis- Lee County «. Rogers, 7 /6. 185; Furman 
 tinctively and exclusively the property «. Nichol, 8 lb. 44 ; Woodruff v. Trapnall, 
 of the corporation ; and the opinion was 10 How. 206 ; Bronson v. Kinsie, 1 lb. 
 expressed arguendo that such funds were 316 ; Lansing v. County Treasurer, 1 
 invested with the security of other private Dillon Cir. C. R. 522; Muscatine v. Rail- 
 property, subject to the plenary power of road Co., lb. 636 ; State v. Milwaukee, 25 
 the legislature, as declared in Darlington Wis. 122 ; Brooklyn Park Commrs. v. 
 V. Mayor, etc. mpra, to direct their appro- Armstrong, 45 N. Y. 234, 1871 ; Soutter 
 priation to any use or purpose for the v. Madison (act forbidding city to levy 
 benefit of the municipality or its inhabi- taxes to pay judgments held void), 15 
 tants. People v. IngersoU, 58 N. Y. 1, Wis. 30 ; Western Savings Fund Society 
 1874; People o. Fields, 68 N. Y. 491, v. Philadelphia, 31 Pa. St. 175, 185; San 
 1874. The exact point, however, which Francisco v. Canavan, 42 Cal. 641, 1872; 
 was adjudged in these cases is that, unless Goodale v. Fennell, 27 Ohio St. 426, 1875; 
 expressly given by statute, an action could g. c. 22 Am. Rep. 321. Further, see 
 not be maintained in the name of the chapter on Contracts, post, sec. 511, et seq. 
 state by the attorney-general, to recover ^ Liquidators v. Municipality, 6 La. 
 a judgment for moneys of the county and An. 21, 1851. As to sinking fund, see 
 city of New York, fraudulently taken by Terry v. Bank, 18 Wis. 87 ; post, chapter 
 the defendants, as such right of action on Charters. Fraudulent transfers of 
 was exclusively in the municipality which property by municipal corporations, 
 was the owner of moneys illegally appro- Smith v. Morse, 2 Cal. 524. 
 priated. Post, chap. xxii. 
 
94 MUNICIPAL CORPOEATIONS. [CH. IV. 
 
 the sanction of the creditors ; but it was held that a subsequent 
 ac|, simply changing the mode of levying taxes, and which did 
 not and could not affect the result or impair the security of the 
 eriditors, was not invalid.^ 
 
 »o, also, where the legislature authorized an indebted city to 
 is^e bonds to a specified amount, in payment of a like amount 
 of its outstanding bonds, and among other provisions, plainly in- 
 tended to induce creditors to make the exchange, was one pro- ' 
 hibiting the city from thereafter issuing its bonds, " except in 
 payment of its bonded debt," and this authority having been 
 acted on, and the arrangement accepted by the creditors, and 
 new bonds issued, it was decided by the Supreme Court of Wis- 
 consin that the prohibition against the issue of further bonds 
 constituted, in favor of the holders of the new bonds, a contract, • 
 which the legislature could not impair by a subsequent enact- 
 ment, authorizing the municipality to issue additional bonds for 
 other purposes.^ 
 
 § 70. (42) But authority to a city to borrow money, and to tax 
 all the property therein to pay the debt thus incurred, does not 
 necessarily deprive the state of the power to modify taxation so as 
 to exempt portions of the property', if the rights of creditors be not 
 thereby impaired.^ So authority given in a railroad charter to a 
 
 1 People V. Bond, 10 Cal. 563, 1858. Brown v. Mayor, etc. of London, 9 Cora. 
 And see People v. Wood, 7 Cal. 579, B. (N. S.) 726, 1861, respecting the lia- 
 1857 ; Brooklyn Park Commrs. v. Arm- bility of London on bonds payable out of 
 strong, 45 N. Y. 234, 1871. tolls and duties levied on vessels navigat- 
 
 2 Smith V. AppletoD, 19 Wis. 468, ing the Thames. In this country, how- 
 1865. Text cited and approved. Mount ever, it is to be remembered that the 
 Pleasant v. Beckwith, 100 U. S. 514. legislative power, as respects creditors, 
 Extent of legislative power over munici- is restrained by the provision of the Fed- 
 pal indebtedness as against the municipal- eral Constitution that no state shall pass 
 jty, see City v. Lamson, 9 Wall. 477 ; and any act impairing the obligation of 
 read, in connection therewith, Campbell contracts. 
 
 V. Kenosha, 5 Wall. 194, in effect over- ' Oilman v. Sheboygan, 2 Black, 510, 
 
 ruling the practical application of Foster 1862 ; Muscatine v. Bailroad Co., 1 Dil- 
 
 ' V. Kenosha, 12 Wis. 616, 1860; post, Ion C. C. 530; Goodale v. Fennell, 27 
 
 chapters on Charters and Contracts. Ohio St. 426, 1875 ; s. c. 22 Am. Rep. 
 
 Youngs V. Hall, 9 Nev. 212. 821 : holding a subsequent act restricting 
 
 When the performance of the obligation of power of assessment inoperative against 
 
 a public or municipal corporation has been a contractor who had agreed to take his 
 
 rendered impossible by act of the law, as, for payment in assessments, 
 
 example, by a subsequent statute, the As against a municipal corporation, the 
 
 obligation is discharged, and no action legislature may, it lias been recently de- 
 
 against the corporation will lie thereon, cided by the Supreme Court of Missouri, 
 
 This principle is well exemplified in repeal its powers to levy and collect wharfage, 
 
§71.] 
 
 EXTENT OF LEGISLATIVE CONTROL. 
 
 95 
 
 county to take stock and issue bonds therefor, if a majority of the 
 voters so determine, is not a contract, but a mere authority con- 
 ferred upon the county in its public capacity, and may be re- 
 pealed after a vote at any time before the subscription has been 
 made ^ or agreed to be made.^ / 
 
 §71. (43) The legislature, as the trustee for the general pub- 
 lic, has full control over the public property and the subordinate 
 rights of municipal corporations. Accordingly, it may authorize 
 a railroad company to occupy the streets in a city without its con- 
 sent and without payment ; but it could not, probably, authorize 
 the taking of the private property of a city by a railroad company, 
 except for public purposes, and upon compensation being made.* 
 
 although the proceeds of the public 
 wharf liad been pledged by the corpora- 
 tion, under legislative authority, as a fund 
 in connection with other revenues for the 
 payment of bonds issued for money bor- 
 rowed by the corporation to maintain 
 and improve the wharf. After the issue 
 of such bonds, which were outstanding, 
 and after the passage of a subsequent 
 act repealing all acts which authorized 
 the municipality to collect wharfage, it 
 sued the defendant for refusing to pay 
 wharfage, on the ground that the repeal- 
 ing act was unconstitutional ; but tlie 
 Supreme Court, assimilating the case to 
 that of Gilman v. Sheboygan, 2 Black, 
 610, and distinguishing it from Van Hoff- 
 man V. Quincy, 4 Wall. 535, held that the 
 city could not recover. The language of 
 the judge delivering the opinion would 
 seem to imply that the repealing act 
 would not be invalid as to creditors un- 
 less other funds should prove insuffi- 
 cient ; but it should be observed that this 
 was not a point adjudged in the case. St. 
 Louis V. Shields, 52 Mo. 351, 1873. 
 
 1 Aspinwall v. County of Jo Daviess, 
 22 How. 364, 1859. When such repeal 
 is effectual, see People v. Coon, 25 Cal. 
 635 ; Union Pacific Railroad Co. v. Davis 
 County, 8 Kan. 256, 1870 ; compare Town 
 of Concord v. Portsmoutli Sav. Bank, 92 
 U. S. 626 ; infra, ch on Contracts. In the 
 State V. Meller, 67 Mo. 604, it was held 
 by the Supreme Court of that state that 
 while municipal corporations cannot as 
 between the legislature and themselves 
 place their privileges on the ground of 
 
 contract, yet where the state creates a 
 municipal corporation, and through it con- 
 tracts with a third person, whereby rights 
 become vested in the latter, it is beyond 
 the power of the state to impair the obli- 
 gations of the contract when the contract 
 to subscribe for stock is completed. C. & 
 O. E. R. Co. V. Barren Co., 10 Bush (Ky.), 
 604, 1874 ; Shelby Co. v. Cumberland & 
 C. R. R. Co., 8 Bush (Ky.), 300. 
 
 Li California it is held that while the 
 legislature cannot require the creditors of a 
 county to surrender their evidences of in- 
 debtedness, and accept new ones different 
 in terms from the old, it may refuse to 
 provide funds to pay any portion of the 
 old indebtedness, unless the creditors 
 will accept new evidences in place of the 
 old, and for a less sum, and that there is 
 no constitutional objection to a law 
 which provides a county fund, out of 
 which the holders of county indebtedness 
 can obtain fifty per cent of the nominal 
 value of their demands, whenever they 
 may choose to accept the same. People 
 «. Morse, 43 Cal. 534, 1872. 
 
 ^ Town of Concord v. Portsmouth 
 Sav. Bank, 92 U. S. 625. 
 
 » Darlington v. Mayor, etc., 31 N. Y. 
 164, 1865; Reynolds v. Stark County, 
 5 Ohio, 204; 5 Ohio St. 113; Clinton 
 V. Railroad Co., 24 Iowa, 455, 1868; 
 Louisville v- University of Louisville, 15 
 B. Mon. 642, 1855. See further, chap- 
 ters on Streets and on Dedication, post ; 
 People V. Kerr, 27 N. Y. 188 ; Mercer 
 V. Railroad Co., 86 Pa. St. 99 ; Mayor, 
 etc. V. Hopkins, 13 La. An. 826 ; New 
 
96 
 
 MUNICIPAL COKPORATIONS. 
 
 [CH. IV. 
 
 It may authorize corporations to make contracts, but it is, per- 
 haps, more doubtful how far it can compulsorily make, in the 
 legal sense of the word, contracts for them, since the essence of 
 a contract consists in the agreement of the parties. And on this 
 view it has been held, in Vermont, that the legislature cannot 
 without the consent of a municipal corporation, appoint an agent for 
 it, and authorize him, as such agent, to purchase property and 
 bind the corporation to pay for it.^ So the Supreme Court of Illi- 
 nois has recently decided that the legislature, under peculiar 
 provisions in the constitution of that state, has no power to com- 
 pel a city to incur a debt against its vv^ill.^ 
 
 Orleans, etc. Railroad Co. v. New Or- 
 leans, 17 ; lb. 478, 1874 ; Reading v. Com- 
 monwealth, 11 Pa. St. 196 ; post, sec. 701. 
 1 Atkins V. Randolph, 31 Vt. 226, 
 1858. The case was this: Plaintiff sued 
 the town of Randolph in assumpsit for 
 liquor sold to an "agent" appointed by 
 the county commissioners to purchase 
 liquors (under the act of 1852, " to pre- 
 vent the traffic in intoxicating liquors "), 
 at the expense of the town for which he 
 was appointed. The town never gave 
 any assent, express or implied, to this 
 appointment; nor did it receive any bene- 
 fit from the sale of the liquors, or have 
 any knowledge that the agent was pur- 
 chasing liquors on its credit. The court 
 held the act of 1852 unconstitutional, and 
 that the plaintiffs could not recover. 
 The decision was put mainly upon the 
 ground that the legislature could not 
 authorize a binding contract to be made 
 creating a debt against a public corpora- 
 tion without its consent. Bennett,.,'!., dis- 
 sented, not on the ground that the corpo- 
 ration was bound by force of any contract, 
 but because the act of 1852 imposed a 
 duty upon the towns, as munidpal corpora- 
 tions, to pay for the liquors, and this for 
 public purposes, and to carry out a police 
 regulation. Chief Justice Denio criticises 
 this case, and considers it as " standing 
 upon no principle." Darlington ti. Mayor, 
 etc. of New York, 31 N. Y. 164, 205, 
 1865. On the other hand it is approved 
 by Lyon, J., in State v. Tappan, 29 Wis. 
 664, 1872; s. c. 9 Am. Rep. 662, re- • 
 ferred to infra, sec. 75 and note. And see 
 Philadelphia v. Field, 58 Pa. St. 320, 
 1868 ; post sec. 881, note. 
 
 • 2 Cairo & St. Louis R. R. Co. v. City 
 of Sparta, 77 III. 506, 1875 ; People v. 
 Chicago (Lincoln Park Case), 51 111. 17, 
 1869; People v. Salomon (South Park 
 Case), lb. 37 ; Howard v. Drainage Com- 
 pany, 76. 130. Though the reasoning of the 
 court is general, yet the point decided — 
 that the city could not be compelled to 
 contract a debt against its consent, was 
 Influenced by, if it does not rest upon — a 
 constitutional provision (art. ix. sec. 5), 
 which was construed to restrict the legis- 
 lature from granting the right of local or 
 corporate taxation to any other than the 
 corporate authorities of the municipality 
 or district to be taxed. In Illinois an act 
 authorizing police commissioners to issue 
 certificates of indebtedness without its 
 consent is unconstitutional. People v. 
 County, 55 111. 33 ; ante, sec. 60. Com- 
 pare Darlington v. Mayor, etc. of New 
 York, 31 N. Y. 161. See Dunnovan 
 V. Green, 57 111. 63 ; Linton v. Aahbury, 
 41 Cal. 525, 1871. In California it is 
 held that the legislature may empower 
 the authorities of a city to purchase an 
 agricultural park, and to issue its bonds 
 in payment therefor, and to levy a tax 
 for their payment. Sonoma County Bank 
 r. Fairbanks, 52 Cal. 196. The legisla- 
 ture, in providing for the improvement 
 of tiie streets of a city, may adopt one 
 mode for a part of tlie streets, and a dif- 
 ferent mode for the remainder, and may 
 authorize the levy of an assessment per 
 front foot to pay for either mode of im- 
 provement. Oakland Paving Co. v. Rier, 
 52 Cal. 270. 
 
 The general propositions in the text as 
 to the restrictions on legislative power 
 
§ vs.] EXTENT OF LEGISLATIVE CONTROL. 97 
 
 § 72. And quite recently the Supreme Court of Michigan, 
 in a case arising under a statute relating to a public park for the 
 city of Detroit, which created a Board of Park Commissioners for 
 the city, the act naming the commissioners and investing them 
 with power to acquire by purchase the necessary lands, at a cost 
 not exceeding $300,000, and imperatively requiring the City 
 Council, without its assent to the appointment of the commis- 
 sioners or to the purchase of the lands by them selected, to pro- 
 vide the money to pay therefor by the issue and sale of the bonds 
 of the city, held that the city could not be compelled, against the 
 will of the council, to issue its bonds ; and the decision was 
 placed on the ground that a park was purely a matter of local, as 
 distinguished from state, concern, and that it was beyond legisla- 
 tive competency to coerce a municipal corporation to contract a 
 debt for local purposes without its consent.^ 
 
 § 73. The basis upon which the judgment in the Detroit Park 
 Case just mentioned, rests, as appears by the opinion of the court 
 delivered by Cooley, J., is that a municipal corporation like that 
 of Detroit will be found to be in part a mere public agency of 
 the state and in part possessed of peculiar and local franchises 
 and rights which appertain to it as legal personality for its private 
 (as distinguished from the public') advantage. It is admitted 
 that " in all matters of general concern there is no local right to 
 act independently of the state, .... and the state may exercise 
 compulsory authority, and enforce the performance of local duties, 
 either by employing local officers for the purpose, or through 
 
 agents or officers of its own appointment The proposition 
 
 which asserts the amplitude of legislative control over municipal 
 corporations, when confined, as it should be, to such corporations 
 
 over municipal corporations will be found v. Aberdeen, 13 Sm. & Mar. 21 Miss. 
 
 to be sustained by the following cases : 645 ; Brunswick v. Litchfield, 2 Me. 
 
 Atkins i^. Randolph, 31 Vt. 220, 1858 ; (2 Greenl.) 28, 32. 
 
 White V. Fuller, 39 Vt. 193 ; Louisville v. ' People ex rel. Park Commrs. v. 
 The University, 15 B. Mon. 642 ; Western Common Council of Detroit (mandamus 
 Savings Fund Society v. Philadelphia, .31 to compel the council to raise money to 
 Pa. St. 175, 185 ; Montpelier v. East pay for lands for the park), 28 Mich. 
 Montpelier, 29 Vt. 12; Poultney k. Wells, 228, 1873; 8. c. 15 Am. Kep. 202. The 
 1 Aik. ( Vt. ) 1 80 ; Trustees v. Winston, 5 city's ownership of gas works is in its local 
 Stew. & Port. (Ala.) 17 ; Norris v. Trus- or private, as distinguished from its pub- 
 tees Abingdon Academy, 7 Gill & Johns, lie character. Western Sav. Fund Soc. v. 
 (Md.) 7 ; Uegents of University v. Wil- Philadelphia, 31 Pa. St. 183. 
 liams, 9 lb. 366; Trustees of Academy 
 VOL. I. 7 
 
98 MtntlCIPAL COKPOKATIONS. [OH. IV. 
 
 as agencies of the state in its government, is entirely sound. 
 They are not created exclusively for that purpose, but have 
 other objects and purposes peculiarly local and in which the 
 state at large, except in conferring the power and regulating its 
 exercise, is legally no more concerned than it is in the individual 
 and private concerns of its severd,! citizens. Indeed, it would 
 be easy to show that it is not from the standpoint of state inter- 
 est, but from that of local interest, that the necessity of incor- 
 porating cities and villages most dtfetinctly appears. State duties 
 of a local nature can for the most part be verji- well performed 
 through the usual township an,d count}' organizations. It is be- 
 cause, where an urban population is collected, many things are 
 necessary for their comfort and protection, which are not needed 
 in the country, that the state is then called upon to confer larger 
 powers and to make the locality a subordinate commonwealth. 
 
 It is a fundamental principle in this state, recognized and 
 
 perpetuated by express provision of the constitution, that the 
 people of every hamlet, town, and city of the state are entitled 
 to the benefits of local self-government. But authority in the 
 legislature to determine what shall be the extent of the capacity 
 in a city to acquire and hold property is not equivalent to and 
 does not contain within itself authority to deprive the city of 
 property actually acquired by legislative permission. As to 
 property it thus holds for its own private purposes, a city is to 
 be regarded as a constituent in state government, and is entitled 
 to the like protection in its property rights as an}' 'natural person 
 who is also a constituent. The right of the state is a light of 
 regulation, not of appropriation. It cannot be deprived of such 
 property without due process of law. And when a local con- 
 venience or need is to be supplied in which the people of the 
 state at lai'ge, or any portion thereof outside the city limits, are 
 not concerned, the state can no more by process of taxation take 
 from the individual citizens the money to purchase it, than they 
 could, if it had been procured, appropriate it to the state use. 
 .... From the very dawn of our liberties the principle most un- 
 questionable of all has been this : that the people shall vote the 
 taxes they are to pay, or be permitted to choose representatives 
 for the purpose." 
 
 The judgment of this able court in the Detroit Park Case and 
 the argument of the eminent judge in the opinion by which it is 
 
§ 74] EXTENT OF LEGISLATIVE CONTROL. 99 
 
 supported are in accordance with the weight of judicial ex- 
 pression on the subject. There are difficulties attending the as- 
 sertion of unlimited legislative power over municipalities, and 
 difficulties, also, in assigning limits to that power. And there 
 seems to us, in view of the effect of the Dartmouth College Case, 
 serious objections to applying its principle in any degree to munici- 
 pal corporations. The legislative power of the state should be at 
 all times comprehensive enough and penetrating enough to en- 
 force all duties and to redress all evils. If it is not, abuses will 
 inevitably arise which nothing but legislative surgery can remedy. 
 It seems to be right that the citizens of Detroit should not be com- 
 pelled to incur a large debt for a park, which after all is a mat- 
 ter of luxury and ornament rather than a prime necessity. But 
 change the instance. Suppose the city should refuse to provide 
 a system of sewers or drainage, whereby the health of its people 
 was injuriously affected : may it say that this does not concern 
 the people of the state outside the city, that it is peculiarly a local 
 matter, and therefore is beyond the power of the state to compel 
 the city to make such a provision and to raise the necessary taxes 
 or make the necessary assessments to that end ? In the present 
 state of the authorities, the question whether a city may be com- 
 pelled to create a debt or liability against its will must be an- 
 swered, we think, with reference not only to the constitutional 
 provisions of the state, but to the nature of the purposes for 
 which the debt or liability is to be incurred. 
 
 § 74. Questions of the kind just discussed depend, for correct 
 solution, not only upon the constitutional provisions in the particu- 
 lar state, but also, we think, upon the nature of the liability which 
 the municipality is ordered to incur. If there is no special limi- 
 tation in the constitution, and the debt is one to be incurred in the 
 discharge of a public duty, which it is proper for the legislature 
 to impose upon the municipality, it can constitute no objection to 
 the validity of the Act that the debt or liability is to be created 
 without its consent. Thus, in the absence of constitutional re- 
 striction, it has been decided, and the decision is doubtless correct, 
 that it is competent for the legislature to direct a municipal corpora- 
 tion to build a bridge over a navigable watercourse within its limits, 
 or the state may appoint agents of its own to build it, and em- 
 power them to create a loan to pay for the structure, payable by 
 
100 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IT. 
 
 the corporation.^ Thus also, since municipal corporations are in- 
 struments of government, created for political purposes, and sub- 
 ject to legislative control, and since it is one of the ordinary 
 duties of such corporations, under legislative authority, to make 
 and keep in repair the streets and highways and bridges connected 
 therewith, the court of appeals in Maryland sustained an act man- 
 datory in its terms, which not only empowered but required the, 
 city of Baltimore in its corporate capacity to take charge of and 
 maintain as a public highway a specified bridge within that city, 
 and enforced the duty created by the act of mandamus.^ 
 
 1 Philadelphia v. Field, 58 Pa. St. 320, 
 1868, approving Thomas v. Leiand, 21 
 Wend. 65; Guilder v. Otsego, 20 Minn. 
 74, 1873 ; sitpra, sec. 54, note, and cases 
 cited United States v. B. & O. K. 11. 
 Co., 17 Wall. 322, 1872; post, sec. 775; 
 Carter v. Bridge Proprietors, 104 Mass. 
 236, 1870. But the legislature would not, 
 of course, possess such extensive powers 
 over a private corporation. Erie v. Canal, 
 69 Pa. St. 174. 
 
 - Puraphrey v. Baltimore, 47 Md. 145. 
 A county being justly indebted under a 
 contract for the erection of public build- 
 ings therein, the legislature may require it 
 to issue its bonds to pay such indebteuness. 
 Jefferson County v. People, 5 Neb. 136, 
 1876. The power of the legislature over 
 municipal contracts and liabilities was 
 very fully considered in the People v. 
 BatcheUor, 53 N. Y. 128, 1873 ; s. c. 13 Am. 
 Rep. 480, and the conclusion was reached 
 that while municipalities may be com- 
 pelled by the legislature, without their 
 consent, to construct and maintain im- 
 provements of a public character, and 
 even enter into contracts for this purpose, 
 they could not be compelled, without their 
 consent, or that of their taxable inhabi- 
 tants, to become stockholders in a rail- 
 way corporation ; and therefore a manda- 
 tori/ statute requiring a municipal or public 
 corporation to subscribe for stock in a railway 
 corporation, and issue its bonds in payment 
 therefor, without such consent, was unconstitu- 
 tional. The opinion of Grover, J , contains 
 a valuable review of many of the leading 
 decisions upon the extent of legislative 
 control over municipalities. And the 
 case is distinguished from the People i-. 
 Flagg, 46 N. Y. 401, where a mandatory 
 act of the legislature, requiring the town 
 
 of Yonkers, without its consent, to issue 
 bonds to raise money to be expended in 
 the construction of highways in the town 
 was held to be constitutional. The case 
 of Batchellor was also distinguished, or 
 attempted to be, from the decisions of the 
 Supreme Court of the United States and 
 of the state courts, to the effect that rail- 
 way corporations are public, and erected 
 for public purposes in such a sense as 
 that the taxing power may be employed 
 to aid in their construction, unless there 
 is some special limitation in the constitu- 
 tion of the particular state. See Town of 
 Flatbush, in re, cited, ante, sec. 63, note> 
 60 N. Y. 398, 1875 ; post, sec. 831, note. 
 
 In the Brooklyn and New York Bridge 
 Case, the court of appeals have declared 
 that the erection of a bridge to connect 
 two cities may be a " city purpose," for 
 which indebtedness may he incurred un- 
 der the late constitutional amendment 
 upon that subject. In deciding such a 
 question, great weight should be given to 
 the determination of the legislature. A 
 constitutional provision that no county, 
 city, or town shall give money or loan its 
 credit to any individual or corporation, or 
 become the owner of corporate stock or 
 bonds, is not in conflict with » statute 
 authorizing two cities already owning 
 stock in a company organized to build a 
 bridge between such cities, to become the 
 owners of the whole stock, by purchasing 
 the stock of the private stockholders, or, 
 in case of a failure to agree, by taking it. 
 by eminent domain. A statute authoriz- 
 ing the erection of a certain bridge, pro- 
 vided that the trustees should call on the- 
 cities who were to pay for it for the funds, 
 necessary, " provided, however, that the 
 whole amount to be paid by both cities 
 
§75.] 
 
 EXTENT OF LEGISLATIVE CONTROL. 
 
 101 
 
 § 75. (44) The fact that a claim against a municipal or pub- 
 lic coiporation is not such an one as the law recognizes as of legal 
 obligation has often been decided, by courts of the highest respect- 
 ability and learning, to form no constitutional objection to the 
 validity of a law imposing a tax and directing its payment ; ^ but 
 
 shall not exceed eight million dollars." 
 Hdd, that this was not an absolute limit 
 against a greater cost, but only a direc- 
 tion that no more should be called for 
 without further legislative authority. 
 { Church, C. J., Folger and Miller, 33 , dis- 
 senting.] People V. Kelly, 6 Abb. N. Y. 
 New Cas. 383. 
 
 ^ Guilford v. Supervisors, etc., 13 N. 
 Y. (3 Kern.) 143, 1855. This case holds 
 the following propositions: 1. That the 
 legislature has power to levy a tax upou 
 tlie taxable property of a town, and ap- 
 propriate the same to the payment of a 
 claim made by an individual against the 
 town. 2. That it is not a valid objection 
 to the exercise of such power that the 
 claim, to satisfy which the tax is levied, 
 is not recoverable by action against the 
 town. 3. That it does not alter the 
 case that the claim has been rejected by 
 the voters of the town, when submitted 
 to them at a town-meeting, under an act 
 of the legislature authorizing such sub- 
 mission, and declaring that their decision 
 should be final and conclusive. 
 
 This case has recently been approved, 
 arguendo, by the Supreme Court of the 
 United States. The United States v. 
 Baltimore & Oliio Railroad Co., 17 Wall. 
 322, 1872 ; New Orleans v. Clark, 95 U. 
 S. 654, 1877. 
 
 On the contrary, the same case has 
 been disapproved by the Supreme Court 
 of Wisconsin, in the State v. Tappan, 
 29 Wis. 664, 1872; s. c. 9 Am. Bep. 
 6^, and an act of the legislature of Wis- 
 consin, similar in its nature and prin- 
 ciples to that involved in Guilford v. 
 Supervisors, supra, was held unconstitu- 
 tional. The opinion of Lyon, J., evinces 
 great care in its preparation ; but it has 
 failed to satisfy us, that, in the absence of 
 special constitutional restraints, the ex- 
 tent of the legislative power of taxation 
 depends upon the consent of the munici- 
 pality or the people therein, or that the 
 special act before the court exceeded 
 the rightful power of the legislature. 
 
 The principle has been recently reaf- 
 firmed, in Massachusetts, that the dis- 
 cretionary power of the legislature in 
 the distribution of public burdens em- 
 braces the power to authorize an assess- 
 ment on one district for part of the 
 expense of repairing a portion of a bridge 
 in another. Carter o. Bridge Proprietors, 
 104 Mass. 236, 1870 ; post, sec. 737. See 
 Mr. Sedgwick's opinion of this legislation, 
 Const, and St. Law, 313, 314. The prin- 
 ciple of Guilford v. Supervisors was ap- 
 plied in Brewster v. Syracuse, 19 N. Y. 
 116, 1859, where it was decided by all of 
 the judges of the court of appeals that 
 the legislature has the power to author- 
 ize the levy of a tax for the purpose of 
 paying to one who has constructed a muni- 
 cipal improvement (a street sewer) an 
 addition to the contract price; which the 
 corporation was forbidden to pay by its 
 charter. The court did not consider that 
 there was any contract in the case, and 
 sustained the legislation on the ground 
 that it was warranted by the taxing 
 power, which, in that state, was not re- 
 strained, thus leaving it in the discretion 
 of the legislature to recognize and direct 
 the payment of claims founded in equity 
 and justice, or in gratitude or charity. 
 People V. Mayor, etc. of Brooklyn, 4 
 Comst. (N. Y.) 419. And see Thomas v. 
 Leland, 24 Wend. 65, 1840; People v. 
 Dayton, 55 N. Y. 367, 1874 ; Shelby Co. 
 V. Railroad Co., 5 Bush (Ky.), 225 ; Phil- 
 adelphia V. Field, 58 Pa. St. 320, 1868. 
 This seems to be carrying the doctrine 
 of the control of the legislature over 
 public corporations to its extreme limit. 
 See Mr. Justice Cooky's views, Const. 
 Lim. 380, 49l, notes. The Supreme 
 Court of California has followed and 
 approved Guilford v. Supervisors. Bland- 
 ing V. Burr, 13 Cal. 343, 1859 ; North 
 Mo. R. B. Co. V. Maguire, 49 Mo. 490, 
 500, 1872. And recently in New York, 
 the court of appeals, while not ques- 
 tioning the judgment in Guilford v. 
 Supervisors, etc. criticised and limited 
 
102 MUNICIPAL CORPORATIONS. [CH. IV. 
 
 the validity of legislation of this character, if it interferes with 
 •what has been called the private contracts of such corporations, 
 must be sustained on the ground that such contracts, so far as the 
 corporations are concerned, are under the absolute control of the 
 legislature, and not within the protection of the national constitu- 
 tion. The cases on this subject, when carefully examined, seem 
 to the author to go no further, probably, than to assert the doc- 
 trine that it is competent for the legislature to compel municipal 
 corporations to recognize and pay 4jebts not binding in strict law, 
 and which, for technical reasons, could not be enforced in equity, 
 but which, nevertheless, are just and equitable in their character, 
 and involve a moral obligation.^ To this extent and with this 
 limitation, the doctrine is unobjectionable in principle, and must 
 be regarded as settled, although it asserts a measure of control 
 over municipalities, in respect of their duties and liabilities, which 
 does not exist as to private corporations and individuals. 
 
 § 76. Accordingly in a case where a municipality, after the pas- 
 sage of an act of the legislature which provided that towns and 
 cities should not thereafter " have power to contract any debt 
 without fully providing in the ordinance creating the debt the 
 means of paying the principal and interest," issued bonds without 
 such a provision as the above statute required, and used them in 
 
 some of the dicta in that case as to the Wis. 217, 1866; Smith v. Morse, 2 Cal. 
 
 extent of the legislative power. Weismer 524; Grogan o, San Francisco, 18 Cal. 
 
 V. Village of Douglass, 64 N. Y. 91 ; 8. c. 590 ; Linton v. Ashbury, 41 Cal. 525, 
 
 21 Am. Rep. 586. Under special provi- 1871 ; New Orleans v. Clark, 95 U. S. 
 
 sionsof Michigan constitution, see People 644,1877; People v. Lynch, 51 Cal. 15, 
 
 V. Onandaga, 16 Mich. 254. Where one 1875 ; Creighton v. San Francisco, 42 Cal. 
 
 county is under a moral obligation to reimburse 446, 1877 ; People v. Supervisors, 70 N. 
 
 another county for certain expenses, the legis- Y. 228, 1877. Text approved. Nevada ». 
 
 lature may give this a legal effect by a sitbse- Hampton, 13 Nev. 441 ; in/ra, sec. 77, note. 
 
 quent act. Lycoming v. Union, 15 Pa. St. The legislature, in favor of a county 
 
 166, 1850. Rights of trial by jury may be collecting officer, who has settled and paid 
 
 denied by the legislature to municipal cor- a claim against him, may pass an act 
 
 porations, these being mere creatures of its authorizing the settlement to be opened 
 
 policy, with such rights only as it sees proper and equitably adjusted, and such an act is 
 
 to confer. Borough of Dunsmore's Appeal, an implied direction that the rule of law, 
 
 52 Pa. St. 374; but see supra, sec. 66, as to voluntary payments, shall not apply, 
 
 note; in/Vo, sec. 76, and note. Burns v. Clarion Co., 62 Pa. St. 422, 
 
 1 Standing v. Burr, 13 Cal. 343, 1853 ; 1869. In California, the legislature can- 
 
 Lycoming v. Union, 15 Pa. St. 166 ; not compel a city to pay a claim which it is 
 
 Guilford v. Supervisors, 13 N. Y. 144, under no obligation whatever to pay ; nor 
 
 1855; Brewster v. Syracuse, 19 N. Y. requireacourttorenderjudgmenton proof 
 
 116, 1859; Thomas i>. Leland, 24 Wend, of the amount thereof . Hoagland v. Sac- 
 
 65, 1840; Hasbrouck v. Milwaukee, 21 ramento, 52 Cal, 142. See infra, sec. 76. 
 
§ 77.] " EXTENT OF LEGISLATIVE CONTROL. 103 
 
 payment of an authorized indebtedness, the Supreme Court of the 
 United States held that inasmuch as the bonds represented an 
 equitable claim against the city, it was competent for the legisla- 
 ture to interfere and require the city to pay them. " The power 
 of the legislature," says Meld, J., delivering the judgment of the 
 court, " to require the payment of a claim for which an equivalent 
 has been received, and from the payment of which the city can 
 only escape on technical grounds, would seem to be clear. ... A 
 very different question," the learned judge cautiously adds, "would 
 be presented if an attempt were made to apply the means raised 
 [by taxation] to the payment of claims for which no consideration 
 had been received by the city." ^ 
 
 § 77. (45) It has, however, been decided in Maryland, that, 
 as against the abutters, the legislature could not ratify an assess- 
 ment for a local improvement in front of their property, and 
 which had been adjudged to be void, and compel them to pay for 
 the same.^ In the case just mentioned, the legislature, in an act 
 relating to the grading and paving of an avenue in the city of 
 Baltimore, among other things, required, as preliminary to pro- 
 ceedings thereundei", that the mayor and council of the city 
 should determine the proposed work to be consistent with the 
 public good. An application, by property owners, for the improve- 
 ment was made to the city commissioners instead of the mayor 
 and council, and the commissioners determined to grade the 
 avenue, awarded the contract, and the contractor did the work at 
 the cost of over §100,000. The abutters instituted no proceed- 
 ings to stop the work, and after it was completed the city passed 
 an ordinance ratifying the contract to grade, and all the acts of 
 the officers of the city in relation to the grading of the avenue. 
 An assessment being made upon their property, to pay the expense 
 of the grading, they filed a bill for an injunction and relief, and it 
 was judicially determined that the proceedings of the city com- 
 missioners were coram non judice and void, and that they could 
 not be ratified by ordinance.^ After this judicial determination, 
 
 1 New Orleans i>. Clark, 96 U. S. 644, ' Baltimore v. Porter, 18 Md. 284, 1861 ; 
 652, 1877. see infra, sec. 814. The text (sec. 79) cited 
 
 2 Baltimore I'. Horn, 26 Md. 194, 1866; and approved and the doctrine applied 
 compare with cases cited in sees. 75 and in Brown v. Mayor, etc. of N. Y. 63 N. 
 79 ; Lennon v. New York, 55 N. Y. 361, Y. 239, 1876, where a legislative ratifi- 
 1874. cation of an ultra i-ires contract for street 
 
104 MUNICIPAL COEPOEATIONS. [CH. IV 
 
 the legislature passed an act directing the city to pay the con- 
 tractors for the work done by them and accepted by the city, to 
 borrow the money for the purpose, and levy a tax for its payment, 
 which the city did. But at the same session, the legislature, to 
 reimburse the city treasury, empowered the city to collect from 
 the abutters on the avenue graded the amounts which had been 
 assessed and ascertained by the city commissioners; and this last 
 act was held by the court of appeals to be void, because it was 
 an assumption of judicial power by^the legislature, and, in effect, 
 a legislative reversal of the former judgment of the court. 
 
 § 78. In levying a local assessment upon the abutting property, 
 a lot within the district declared to be benefited was omitted, 
 after which the legislature validated the assessment, this omission 
 and exemption being retained and preserved ; and it was held by 
 the Supreme Court of California that the validating act was un- 
 constitutional.^ The ground for this judgment is satisfactory : 
 since the legislature could not prospectively have exempted the 
 property omitted because it would have violated the constitutional 
 requirement of uniformity,^ it could not do this retrospectively. 
 
 § 79. (46) In general, however, the legidature may, hy subse- 
 quent act, validate and confirm previous acts of the corporation other- 
 wise invalid.^ Merely because such legislation, in matters not 
 
 improvements was sustained. Duanes- 1872; Linton v. Ashbury, 41 Cal. 525, 
 
 burg V. Jenkins, 57 N. Y. 177, 1874. 1871 ; New Orleans v. Clark, 95 U. S. 
 
 The poa':ei- of the legislature to appropriate 644, 1877 ; supra, sees. 75, 76. 
 the monei/s of municipal corporations in pay- In Iowa it appears to be regarded as 
 
 ment of claims ascertained by it to be not within the power ol the legislature 
 
 equitably due to individuals, thougli such to provide a means for the collection of 
 
 claims be not enforceable in the courts, an unconstitutional obligation against a 
 
 depends largely in the view of the Su- public corporation, as where a debt had 
 
 preme Court of California upon the legisla- been incurred in excess of the limit fixed 
 
 live conscience and will not be interfered by the constitution. Mosher v. School 
 
 with by the Judicial Department unless in District, 44 Iowa, 122, 1876. 
 exceptional cases, and the circumstances ^ People v. Lynch, 51 Cal. 15, 1875 ; 
 
 that the contract, under which the plain- 8. c. 21 Am. Eep. 676. 
 tiff did certain work in San Francisco, * Post, sec. 756, and cases cited in 
 
 expressly provided that the city should note. For construction of constitutional 
 
 in no event be liable for any portion of provision in California in respect of 
 
 the expenses thereof ; was held, not to equality and uniformity of taxation, the 
 
 affect or in any manner invalidate an act opinion of McKinstry, J., in The People v. 
 
 subsequently passed by the legislature, Lynch, supra, will repay reading, 
 requiring the city to pay him a debt ' Bridgeport v. Railroad Co., 15 Conn, 
 
 which in good conscience it ought to pay. 475, 1843, in which it was held that the 
 
 Creighton v. San Francisco, 42 Cal. 446, legislature might validate prior suliscrip- 
 
§80.] 
 
 EXTENT OF LEGISLATIVE CONTKOL. 
 
 105 
 
 relating to crimes, is retrospective, does not make it void. If in 
 addition to its being retrospective, it unjustly impairs or abrogates 
 vested rights, and, without reasonable cause, imposes upon third 
 persons new duties in respect to past transactions, it will be void 
 because in conflict with the constitution.^ 
 
 § 80. (47) While it is undeniable that the legislature has full 
 control over public corporations, and over the funds which belong 
 to them as such, and Jield for strictly corporate purposes ; yet 
 where, by authority of law, such corporations hold property or 
 funds in trust for specific uses, it is left in doubt by the eases how 
 far the legislature can, unless the uses be strictly public or chaii- 
 table, interfere with or control such trust property or funds. In 
 
 trospeclioe act, to make valid a tax upon 
 poperty not within the corporation when 
 levied was hdd void. Atcliison, etc. R. R. 
 Co. 0. Maquillon, 12 Kan. 301, 1873. 
 
 1 Bridgeport v. E. R. Co., 15 Conn. 
 475, 497, and cases cited per Church, J. 
 Laws passed to remedi/ defective execu- 
 tion of powers of public corporations, or their 
 officers, are valid, though retrospective in 
 their operation, unless they contravene 
 some provision of the state constitution. 
 State V. Newark, 3 Dutch. (N. J ) 187, 
 1858; Bissell v. Jefferson ville, 24 How. 
 287, 295, where such curative acts are 
 said to be valid when contracts are not 
 impaired, or the rights of third persons 
 injuriously affected. New Orleans v. 
 Clark, 95 U. S. 644, 1877. 
 
 It is competent for the legislature to 
 validate a citi/ ordinance which had become 
 null and void for want of being recorded, . 
 and to provide that the omission to record 
 shall not impair the lien of the assess- 
 ments against the lot owners. Schenley 
 V. Commonwealth, 36 Pa. St. 29, 1859. 
 The legislature may ratify, and thereby 
 make binding an unauthorized municipnl 
 subscription to the stock of an incorpor- 
 ated theatre companj». Municipality v. 
 Theatre Company, 2 Rob. (La.) 209, 
 1842 ; but, quere, whether, if the legis- 
 lature had the power, the act in this 
 case was properly held to be a ratifica- 
 tion. Danielly v. Cabaniss, 52 Ga. 211, 
 1874. See, further, chapter on Contracts, 
 post, sec. 551. Text cited and approved. 
 Pompton V. Cooper Union, 101 U. S. 
 196. 
 
 tion of city to stock of railroad company. 
 S. P. Winn v. Macon, 21 Ga. 275, 1867 ; 
 Mattingly v. District of Col,, 97 U. S. 
 687 ; McMillen v. Boyles, 6 Iowa, 304 ; 
 lb. 391 ; New Orleans v. Poutz, 14 La. 
 An. 853 ; Bissell v. Jeffersonville, 24 
 How. 287, 295, 1860 ; Atchison o. Butch- 
 er, H Kan. 104, 1865 ; Frederick v. Au- 
 gusta, 5 Ga. 561 ; Allison v. R. W. Co., 9 
 Bush (Ky.), 247, 1872 ; Truclielut v. City 
 Council, 1 Nott & MuCord (Soutli Car.), 
 227; Cooley Const. Lim. .S71, 379; post, 
 sees. 419, 551, 814; contra under constitu- 
 tion of Illinois ; Marshall v. Sullivan, 61 
 III. 218. A healing statute is not uncon- 
 stitutional by reason of giving validity 
 tu an act irregularly done which the leg- 
 islature could have authorized to be done 
 in tlie irregular way in the first instance. 
 Lockhart v. Troy, 48 Ala. 579, 1872. 
 
 It is competent for the legislature, by 
 subsequent enactment, to cure any de- 
 fects or omissions in the proceedings of 
 the superintendent of streets. San Fran- 
 cisco V. Certain Real Estate, 42 Cal. 517, 
 1872. Where the original purpose for 
 which the power of taxation is invoked 
 is one of the ordinary purposes of muni- 
 cipal government and within the powers 
 granted, and where there is no fraud or 
 oppression in the creation of the debt or 
 burden, and no inequality or injustice in 
 the apportionment of the tax, the legis- 
 lature may by subsequent enactment cure any 
 defect in the proceedings to collect the lax 
 which it could in the first instance, by prior 
 enactment have made immntTtai. Emporia 
 V. Norton, 13 Kan. 560, 1874. But a re- 
 
106 
 
 MUNICIPAL COEPOKATIONS. 
 
 [cH. rv. 
 
 a, very recent case of great interest, the Supreme Court of Penn- 
 sylvania decided that it was within the power of the legislature 
 to deprive the city of Philadelphia of the right to administer char- 
 itable trusts under the will of Mr. Girard and others, which had 
 been granted to and accepted by it, and to confer the administra- 
 tion of these trusts upon a separate body, called " Directors of 
 City Trusts," appointed by the judges of the Supreme Court and 
 other judges named in the act. It is to be remarked, however, 
 that the legislature did not attempt tg change or pervert the trusts 
 themselves.^ Certain it is, that without legislative authority, a 
 municipal corporation holding the legal title to property in trust 
 cannot use the funds derived from such property for corporate 
 purposes, or, indeed, for any except the trust purposes.^ 
 
 1 Philadelphia v. Fox, 64 Pa. St. 169, 
 1870 ; post, sec. 567 et seq. 
 
 2 White V. Fuller, 39 Vt. 193; ante, 
 sec. 64 ; Montpelier v. East Montpelier 
 (contest as to trust property on division 
 of town), 27 Vt. (1 Wms.) 704, 1854; 
 same controversy in chancery, 29 Vt. 
 (3 Wms.) 12. See, also, Trustees, etc. v. 
 Bradbury, 2 Fairf. (Me.) 118; Poultney 
 V. Wells, 1 Aik. (Vt.) 180; Plymouth v. 
 Jackson, 15 Pa. 44 ; Harrison v. Bridge- 
 ton, 16 Mass. 16 ; Daniel ». Memphis, 11 
 Humph. (Tenn.) 582; Trustees of Acad- 
 emy V. Aberdeen, 13 Sm. & Mar. (21 
 Miss.) 645, as to which, quere. Aberdeen 
 V. Sanderson, 8 lb. 670 ; Chambers v. St. 
 Louis, 29 Mo. 543 ; Holland o. San Fran- 
 cisco, 7 Cal. 361 ; Girard v. Philadelphia, 
 7 Wall. 1. See, post, chapters on Cor- 
 porate Property and Bemedies against 
 Illegal Corporate Acts. 
 
 A conveyance was made in 1873, by 
 the proprietors of the lands, to tlie select- 
 men of North Yarmouth, of " all the flats, 
 sedge banks, and muscle beds in said 
 town, lying below high water mark .... 
 for the sole use and benefit of the pres- 
 ent inhabitants, and of all such as may 
 or shall forever inhabit or dwell in said 
 town," etc. It was decided that this 
 property was held by the town as a pMic 
 corporation, subject to legislative con- 
 trol, in trust for the use of all of the in- 
 habitants, and that upon a division of 
 the town, it was competent for the legis- 
 lature to provide that the original town 
 should still hold such property in trust 
 
 for the inhabitants of both towns. North 
 Yarmouth v. Skillings, 45 Me. 133, 1858; 
 post, sec. 187. 
 
 To another town in Maine, lands were 
 granted by Massachusetts prior to the 
 separation of Maine therefrom, for the 
 use of its schools. The legislature, in 1803, 
 on the application of the town, authoriiied 
 the sale of the lands, and gave to certain 
 designated trustees the right to control 
 the funds raised by the sale of the lands. 
 This was considered as constituting a 
 contract, and it was accordingly held that 
 a subsequent act of the legislature, au- 
 thorizing the town to choose a new (set 
 of trustees, and directing the first trustees 
 to deliver over the trust property, was, 
 agreeably to the principles settled in the 
 Dartmouth College Case, unconstitu- 
 tional and void. The Trustees, etc. v. 
 Bradbury, 11 Me. 118, 1834; Yarmouth 
 V. North Yarmouth, 34 Me. 411, 1852. 
 In this last case the trustees of the funds 
 were a privcUe corporation, and not sub- 
 ject to legislative control. In North 
 Yarmouth v. Skillings, 46 Me. 133, 1858, 
 the trustees of the property or fund in 
 question were a public corporation, and 
 subject to such control. The rule as to 
 private and public corporations is well 
 exemplified in these two cases. See, 
 also, Norris ». Abington Academy, 7 Gill 
 & Johns. (Md.) 7 ; Bass u. Fontleroy, 
 11 Tex. 698; Louisville v. University 
 of Louisville, 15 B. Mon. 642. 
 
 In the State ». Springfield Township, 
 6 Ind. (Porter) 83, 1854, it was held that 
 
§80.] 
 
 EXTENT OF LEGISLATIVE CONTROL. 
 
 107 
 
 a law of the state (act of 1852), so far 
 as it diverted the proceeds of the sale of 
 tlie sixteenth section (granted by act of 
 Congress of April 19, 1816) from the use 
 of schools in the congressional, township 
 where the land was situated, to the use 
 of the school system of the state at large, 
 was in contravention of that section of 
 the state constitution (sec. 7, art. viii.) 
 which provides, that "all trust funds, 
 held by the state, sliall remain inviolate, 
 and be faithfully and exclusively applied 
 to the purpose for which the trust was 
 created." 
 
 That the legislature cannot in dividing 
 a town violate the provisions of the donor 
 of a fund lield by a municipality in spe- 
 cific trusts is affirmed by the Supreme 
 Court of New Hampshire in a recent 
 judgment. The case was this : In 1866 
 the town of M. received from John Boyn- 
 ton the sum of $10,000 as a fund for the 
 support of its public schools, on the ex- 
 press condition that, unless the income 
 thereof should be forever divided and 
 
 applied, according to the number of 
 scholars between the ages of five and 
 fifteen in the several schools or districts 
 of the town, the fund should be repaid to 
 the donor, his executors, administrators, 
 or assigns. In 187*2, the town of G, 
 was created by act of the legislature out 
 of part of the territory and inhabitants 
 of M., and it was provided that all prop- 
 erty, real and personal, and all school 
 and other funds belonging to the original 
 town of M. should be divided in the pro- 
 portion of seven to M. and tliirl^een to G. 
 It was held that the legislature had no 
 constitutional power to direct a division 
 or distribution of the fund different from 
 that prescribed by the donor; and that, 
 therefore, no legal provision for the divi- 
 sion of the fund in controversy having 
 been made, the rights of the town of M. 
 therein were unaffected by the act, and 
 the new town of G. was not entitled to 
 any portion of the fund or income. 
 Greenville v. Mason, 63 N. H. 615, 1873; 
 post, see. 187, note. 
 
108 MUNICIPAL COKPOEATIONS. [CH. V. 
 
 CHAPTER V. 
 
 MUNICIPAL CHARTEBS. 
 
 General Mvmici'pal Powers. — Their Nature and Construction. 
 
 § 81. (48) This chapter will treat of Municipal Charters, and 
 the principles upon which they are construed, and of the general 
 nature of the powers which they confer upon the corporation or 
 upon its legislative or governing body. The subject will be con- 
 sidered under the following heads : — 
 
 1. Charters defined. 
 
 2. Judicially noticed. 
 
 3. Proof of Corporate Existence. 
 
 4. Repeal and Amendment of Charters. 
 
 5. Conflict between General Laws and Special Charters. 
 
 6. Extent of Corporate Powers, Limitations thereon, and 
 Canons of Construction. 
 
 7. Usage as affecting Powers and Their Interpretation. 
 
 8. Discretionary Powers. 
 
 9. Public Powers Incapable of Delegation. 
 
 10. Public Powers cannot be surrendered. 
 
 11. Mandator}'- and Discretionary Powers. 
 
 12- Exemption of Revenues from Judicial Seizure, and herein 
 of Garnishment. 
 
 Charters defined. • 
 § 82. (49) We have before seen that, in this country, muni- 
 cipal corporations are created by legislative act, either in the 
 form of a legislative charter or by general incorporating statutes.^ 
 A municipal charter granted hy the crotvn in England is a written 
 instrument, made in the form of letters patent, with the great 
 seal appended to it, addressed to all the subjects, and constitut- 
 ing the persons therein named, and their successors, a body cor- 
 porate for or within the place therein specified, and prescribing 
 
 1 Ante, sees. 39, 41. 
 
§ 84] MUNICIPAL CHARTERS. 109 
 
 the powers and duties of the corporation thereby created. But 
 such charters are inoperative until accepted.^ Here, as we have 
 elsewhere shown, the legislature creates, alters, and, in the 
 absence of constitutional restriction, can destroy, municipal and 
 public corporations at its will, and it invests them with such pow- 
 ers, and requires of them such duties, as it deems most expedient 
 for the general good, and for the benefit of the particular locality.^ 
 No precise form of words is necessary to create a corporation, and 
 a corporation may be created by implication.' 
 
 Charters judicially noticed. 
 
 § 83. (50) Courts will judicially notice the charter or incorpo- 
 rating act of a municipal corporation without being specially 
 pleaded, not only when it is declared to be a public statute, but 
 when it is public or general in its nature or purposes, though there 
 be no express provision to that effect.* But the acts, votes, and 
 ordinances of the corporation are not public matters, and must 
 be pleaded and proved.^ 
 
 Proof of Corporate Existence, — User. — Legislative Recognition. 
 
 § 84. (51) The primary evidence of a special charter or act of 
 incorporation, in this country, is the original, or an authenticated 
 
 1 Ante, sees. 32, 44. Outline of char- Watson, 10 Mass. 91 ; Clapp v. Hartford, 
 ter of the Middle Ages, ante, sec 6. 36 Conn. 66 ; People u. Potter, 36 Cal. 
 
 2 Ante, sees. 8, 9, 22. 110 ; where a city is incorporated under a 
 
 3 Ante, sees. 3, 42, 43. general act, the fact of its corporate char- 
 
 * Albrittin v. Huntsville, 60 Ala. 486 ; acter must be averred and proved. Ingle 
 Snioot V. Wetumpka, 24 Ala. 121 ; Case v. Jones, 43 Iowa, 286, 1876 ; post, sec. 
 V. Mobile, 30 Ala. .538 ; Perryman v. 177, note. A city charter being declareil 
 Greenville, 61 Ala. 510. to be a public act, supplements and amend- 
 
 * Beatty v. Kno^les, 4 Pet. (U. S.) nients to it are likewise public. Newark 
 1-52, 157, 1830; Stier u. Oskaloosa, citing Bank v. Assessors, 30 N. J. L. 22; State 
 and approving text. 41 Iowa, 363 ; Ingle v. Bergen, 34 N. J. L. 439 ; New Jersey 
 r. Jones, 43 Iowa, 286, 1876 ; Aldermen v. Yard, 05 U. S. 112, 1877. See post, 
 B. Finley,5I5ng. 10 Ark. 423, 1860;Faunt- chapter on Ordinances, sec. 422. Where 
 leroy c. Hannibal, 1 Dillon C. 0. 118, a public taw creates the mayor and alder- 
 1871 ; Prell v. McDonald, 7 Kan. 426, men an incorporated body, no averment 
 1871 ; 8. c. 7 Am. Rep. 423 ; West v. or proof is necessary to establish the 
 Blake, 4 Blackf. (Ind.) 234, 1836 ; Briggs existence of the corporation. State v. 
 /•.Whipple, 7 Vt. 16, 18, 1835; Case v. Mayor, 11 Humph. (Tenn.) 217, 1850. 
 Mobile, 30 Ala. 5.38, 1857 ; Clarke v. Bank, State v. Helmes (prescriptive corpora- 
 5Kng. lOArk. 516; State d. Mayor, 11 tions), Penn (N. J.) 1050. Hawthorne;'. 
 Humph. (Tenn.) 217, 1860; see Vance w. Hoboken (supplemental act), 3 Vroorn. 
 Bank, 1 Blackf. (Ind.) 80, and note (2) ; 82 N. J. L. 172; Stevens Co. v. Railroad 
 6 Bac. Abr. 374, note ; Young v. Bank, Co. 4 Vroorn, 33 N. J. L. 229 ; Bowie v. 
 etc., 4 Cranch, 384 ; Swails v. State, 4 Kansas City, 61 Mo. 454, 1873. 
 
 Ind. 516, 1853 ; Portsmouth, etc. Co. v. 
 
110 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. V. 
 
 copy, or a printed copy, published by authority. But if primary 
 evidence cannot be had, parol or secondary evidence of its exist- 
 ence is admissible.! Thus, where a public corporation had ex- 
 isted for a long space of time (in the instance before the court 
 for forty years), the court admitted proof of its incorporation by 
 reputation, the original act not being found, and it being proba- 
 ble that it had been destroyed by fire.^ So evidence that a town 
 has for mani/ years exercised corporate privileges, no charter, after 
 search, being found, is competent t& go to the jury to establish 
 that it was duly incorporated. And where there is no direct or 
 record evidence that a place has been incorporated, and it is 
 sought to show the fact of incorporation from circumstantial evi- 
 dence, the question is ordinarily for the jury, and not the court ; 
 that is, the jury, under the circumstances, determine whether 
 there is or is not sufficient ground to presume a charter or act of 
 incorporation,^ or the due establishment and existence of a corpo- 
 rate district under some general act.* So corporate existence 
 
 1 Stockbridge t'. West Stockbridge, 
 12 Mass. 400, 1815; Braintree v. Battles, 
 6Vt. -395, 1834; Blackstoiie v. White, 
 41 l*a. St. 330. 
 
 '■i Dillingham v. Snow, 5 Mass. 547, 
 1809; s. p. Bassett v. Porter, 4 Cusli. 
 487, 1849. In view of the defective man- 
 ner in whiuh the records of quasi corpora- 
 tions — such as school and road districts, 
 and the like — are kept, the courts, in 
 tlie alisence of any statute requiring re- 
 cord evidence, will permit the existence 
 and organization of the corporation to be 
 proved by rppulation and nets, where these 
 facts do not appear of record. Barnes v. 
 Barnes, 6 Vt. 388, 18.S4; Londonderry v. 
 Andover, 28 fh. 416, 1856; Sherwin «. 
 Bugbee, 16 Ih. 439: Ryder v. Railroad 
 Co., 13 111. 523; Highland Turnpike 
 V. McKean, 10 Johns. 154; Owings v. 
 Speed, 5 Wheat. 420. See chapter on 
 Corporate Records and Documents, post. 
 
 Irregularities in the proceedings to or- 
 ganize a corporation are not favored when 
 set up long afterwards to defeat the cor- 
 porate existence Jameson v. People, 16 
 III. 257, 1865 ; Dunning v. Railroad Co., 
 2 Ind. 437, 1850; Fitch u. Pinckard, 4 
 Scam. 5 III. 76. 
 
 Where a, corporation is created, and 
 declared to exist as such, by the legisla- 
 ture without condition, proof of organiza- 
 
 tion or itser is not necessary to enable them 
 to maintain an action. Cahill v. Insur- 
 ance Company, 2 Doug. (Mich.) 124; 
 Fire Department v. Kip, 10 Wend. 266, 
 1833. And see Proprietors, etc. v. Hor- 
 ton, 6 Hill (N. Y.), 501 ; People v. Presi- 
 dent, 9 Wend. 351; Wood v. Bank, 9 
 Cowen, 194, 205. When construed to be 
 immediately created, the omission to do 
 certain acts prescribed to organize the 
 institution was lield immaterial as re- 
 spgcts persons contracting with the cor- 
 poration. Brouwer v. Appleby, 1 Sandf. 
 153, 1847; a. p. People v. President, 9 
 Wend. 351. See also ante, sec. 44. . 
 
 8 New Boston v. Dumbarton, 15 N. H. 
 201, 1844 ; Mayor of Kingston v. Homer, 
 Cowp. 102, per Lord Mansfield. 
 
 4 Bassett v. Porter, 4 Cush. 487, 1849 ; 
 New Boston v. Dumbarton, 12 N. H. 409, 
 412, 1841 ; 8. c. 15 N. H. 201 ; Robie •>. 
 Sedgwick, 35 Barb. 319, 1861. The ex- 
 ercise of corporate powers by a place for 
 twenty years, without objection, and with 
 the knowledge and assent of the legisla- 
 ture, furnishes conclusive evidence of a 
 charter, which has been lost ; or, in other 
 words, of a corporation by prescription, 
 which supposes a grant. Bow v. Allen- 
 town, 34 N. H. 851, 1857. In this ease it 
 was also held that an act of incorporation 
 subsequently passed does not raise any 
 
§85.] 
 
 MUNICIPAL CHAETEKS. 
 
 Ill 
 
 may be inferred and judicially noticed, although the incorporat- 
 ing act or charter cannot be found, if the fact of incorporation is 
 clearly recognized hy subsequent legislation, not in contravention 
 of any constitutional provision respecting the mode of creating 
 corporations.! 
 
 Repeals and Amendments, and their Effect. 
 
 § 85. (52) The powers conferred upon municipal corporations 
 may at any time be altered or repealed by the legislature, either 
 by a general law operating upon the whole state, or, in absence 
 of constitutional restriction, by a special act?- A charter may be 
 amended, and the name of the place and the governing body may 
 be changed, and its boundaries altered, while in law the corpora- 
 tion remains the same. The insertion in an amended charter of 
 the same provisions that were contained in the old is not, unless, 
 such upon the whole act appears to have been the intention of 
 the legislature, a repeal of tiie latter. The law on this subject is 
 thus stated : " Where a statute does not, in express terms, annul 
 a right or power given to a corporation by a former act, but only 
 
 conclusive presumption that the town was 
 not before incorporated. Long use and ac- 
 quiescence are evidence in support of the 
 legal existence of a municipal corpora- 
 tion. People V. Farnham, 35 III. 662; 
 Jameson v. People, 16 111. 257, 1855 ; Peo- 
 ple V. Maynard, 15 Mich. 463, 1867. Long 
 acquiescence in the proceedings of a 
 school district is presumptive evidence of 
 the regular organization of such district. 
 Sherwin o. Bugbee, 16 Vt. 439, 1844; 
 Londonderry i; Andover, 28 lb. 416. " It 
 is now well settled in this state, that the 
 mere fact of a school district maintaining 
 its existence and operation for a great 
 number of years — say fifteen — is suffi- 
 cient evidence of its regular organization. 
 The same rule of presumption must be 
 applied to the subdivision of the town into 
 districts." Per Reclfield, J., in Sherwin v. 
 Bugbee, supra. 
 
 1 Jameson v. People, 16 III. 257, 1855 ; 
 Swain ». Comstock, 18 Wis. 463, 1864 ; 
 People ». Farnham, 35 111. 562 ; Bow v. 
 AUentown, 34 N. H. 351, 1857 ; Society, 
 etc. V. Pawlet, 4 Pet. 480, 1880; Railroad 
 Co. ti. Chenoa,43 111.209; Virginia City u. 
 Mining Co. 2 Ne v. 86, 1866 ; Railroad Co. v. 
 Plumas County, 37 Cal. 354 ; ante, sec. 42. 
 
 2 Per Smith, J., Sloan a. State, 8 
 Blarkf. (Ind.) 361, 1847, approving People 
 V. Morris, 13 Wend. 325; Daniel v. Mayor, 
 etc. 11 Humph. (Tenn.) 582; State i: 
 Mayor, 24 Ala. 701, 1854; Girard v. Phil- 
 adelphia, 7 Wall. 1, 1868; State f. Troth, 
 5 Vroom (34 N. J. L.), 379; post, sees. 
 171, 172; State v. Palmer, 4 N. W. Rep. 
 966 ; Indianapolis v. Indianapolis Gas Co., 
 66 Ind. 396; ante, sees. 45, 52, et seq. 
 The provisions of an amendatory act, re- 
 ducing the number of councilmen, though 
 the act took effect at once, were post- 
 poned until the next year, when they 
 could be called into requisition at the 
 election — no earlier election being pro- 
 vided for — and meanwhile the existing 
 council remained unaffected by the amend- 
 ment. Scovill V. Cleveland, 1 Ohio St. 
 126, 1853. Same principle applied. Read- 
 ing V. Keppleman, 61 Pa. St. 233, 1869. 
 
 A legislative amendment to charter 
 abolishing assistant aldermen, and declar- 
 ing board of aldermen to be common 
 council. Is a valid exercise of legislative 
 authority ; a public corporation's charter 
 is always subject to legislative amend- 
 ment or alteration. Demarest v. New , 
 York, 74 N. Y. 161. 
 
112 MUNICIPAL CORPQEATIONS. [CH. V, 
 
 confers the same rights and powers under a new name, and with 
 additional powers, such subsequent act does not annul the rights 
 and powers given under the former act and under its former 
 name," there being no express repeal.^ 
 
 § 86. (53) A repeating clause in a revised and amendatory- 
 charter, Avhereby a former provision is included in the revised 
 act, does not, as to such provision, interrupt the continuity of 
 the original act.^ Where the origini^^ charter of a city prescribed 
 the qualifications required to make a person eligible to the office 
 of mayor, and contained a proviso that a certain fact disqualified, 
 and an amendatory act, in dealing in the same subject, copied 
 all of the original act except the proviso, which was omitted, the 
 court held that the proviso in the original act was not repealed, 
 placing stress, however, upon the express declaration that all 
 parts of the new act inconsistent with or contrary to the old 
 one were repealed. There is, however, much room to contend 
 that the subject-matter having been revised in the amendatory 
 act in the manner it was, tlie legislative intention was to repeal, 
 and not to continue in foice, the proviso.^ A general law, for- 
 
 1 State, etc. v. Mobile, 24 Ala. 701, all prior acts of assembly." Trustees of 
 
 1864; Girard w. Philadelphia, 7 Wall. 1, Academy v. Erie, 81 Pa. St. 515, 517, 
 
 1868 ; Brougliton o. Pensacola, 9-3 TJ. S. 1858. As to transfer to new or reorgan- 
 
 '266,1876. Approving Milner's admx. v. izedcorporation of the property and rights 
 
 I'ensacola, 2 Woods, 632 ; Indianapolis of the old or former corporation, see 
 
 V. Indianapolis Gas Co., 66 Ind. 396. Girard v. Philadelphia, 7 Wall. 1, 1868; 
 
 Approving text. Commonwealth i-.. Wor- Savannah v. Steamboat Company, B. M. 
 
 cester, 3 Pink. (Mass.) 474, 1826; Grant Charlt. (Ga.) 342; Fowie v. Alexandria, 
 
 on Corp. 24, and cases cited ; Ih. 305. 3 Pet. 398, 408 ; Municipality v. Conmiis- 
 
 See chapter on Dissolution, po.'s*. "There sioners, 1 Rob. (La.) 279. Transition 
 
 is no doctrine better settled," says Mr. from town to city organization does not 
 
 Justice Strong, " than that a cliange in the dissolve the corporation or extinguish its 
 
 form of government of a comvmnily does not indebtedness. Olney v. Harvey, 50 111. 
 
 ?/)so./ac«o abrogate pre-existing law, either 453, 1869; Maysville r. Shultz, 3 Dana, 
 
 written or unwritten. Tliis is true in 10,1865; Frank k. San Francisco, 21 Cal. 
 
 regard to what is strictly municipal law, 668 ; post, ch. vii. sees. 171, 172. 
 even when the change is by conquest. ^ St. Louis w. Alexander, 2.3 Mo. 483, 
 
 The act of assembly converting a borough 1856. 
 
 into a city did not, therefore, of itself, ' State i-. Merry, 3 Mo. 278, 1833. 
 
 and in the absence of express provisions Consult Goodenow c. Buttrick, 7 Mass. 
 
 to that effect, either repeal the former 140, 143; King ». Grant, 1 Barn. & 
 
 acts of assembly relative to the borough, Adol. 104. Where a later statute under- 
 
 or annul existing ordinances. It was takes to revise the entire subject-matter 
 
 solely a change in the organic law for of a prior statute, it will generally be 
 
 the future, and left unaffected the exist- taken as intended to be a substitute for 
 
 ing ordinances, precisely as a change of the former statute unless a contrary pur- 
 
 a state constitution leaves undisturbed pose appears. It is entirely a question 
 
§ 87.] MUNICIPAL CHAETEES. 113 
 
 bidding the. opening of streets through cemeteries, is not repealed 
 by a subsequent act extending the limits of a town, and appoint- 
 ing commissioners with authority " to survey, lay out, etc., streets 
 and alleys, as they shall deem necessary within said limits," since 
 both acts can stand, and repeals by implication are not favored.^ 
 So a general statute, expressly prohibiting a municipal corpora- 
 tion from debarring citizens from selling at wholesale in the city 
 market, is not repealed by implication by a subsequent act, by 
 which the city authorities are invested with power to pass such 
 ordinances as appear to them necessary for the security, welfare, 
 etc., of the city.^ So, also, where a state law required auctioneers 
 to take out a state license, and a subsequent charter to a city 
 gave it power " to provide for licensing, taxing, and regulating 
 auctions," etc., it was held that a license granted by the city cor- 
 poration to an auctioneer did not relieve him of the necessity of 
 obtaining, also, a license from the state authorities, the court 
 being of opinion that both statutes should and ought to stand, as 
 they were not inconsistent.® 
 
 G-eneral Laws and Special Charters. — Conflict. — Construction. 
 
 § 87. (54) It is a principle of very extensive operation that 
 statutes of a general nature do not repeal, hy implication, charters 
 and special acts passed for the benefit of particular municipali- 
 ties ; * but they do so when this appears to have been the pur- 
 
 of legislative intention. Murdook v. in re, 50 N. Y. 493, 1872; Mayor v. In- 
 
 Memphis, 20 Wall. 590, 617, and cases man, 57 Ga. 370, 1876; pos«, sees. 1.37, 162. 
 
 cited. Sedgwick on Stats. 126 ; Bank o. Repeals by implication are not favored ; 
 
 Bridge, 1 Vroom (30 N.J. L.), 112; Indus- and special laws conferring particular 
 
 trial School v. Whitehead, 2 Beasley, rights upon municipal corporations were 
 
 N. J. 290; State v. Kelly, 5 Vroom (34 held not to be repealed by subsequent 
 
 N. J. L.), 75. statutesgeneralintheircharacter. Ottawa 
 
 1 Egypt Street, 2 Grant (Pa.) Cas. v. County, 12 111. 339; Egypt Street, 2 
 455, 1854. See, further, infra, sec. 87, Grant (Pa.) Cas. 465, 1854; supra, sec. 
 as to repeals by implication. 87. A general statute, repealing all acts 
 
 2 Haywood v. Savannah, 12 Ga. 404, contrary to its provisions, held not to 
 1853. repeal a clause in the charter of a muni- 
 
 * Simpson v. Savage, 1 Mo. 8.59, 1823 ; cipal corporation upon the same subject. 
 infra, sec. 87. Text approved, Sieben- State v. Branin (taxation), 3 Zabr. (23 N. 
 hauer, in re, 14 Nev. 865. J. L.), 484, 1852. But a general railroad 
 
 * Bond V. Hieetand, 20 La. An. 139; tax law held to repeal by implication 
 Railroad Co. v. Alexandria, 17 Gratt. prior special charter powers of munici- 
 (Vt.) 176, 1867; Hammond v. Haines, palities. "It is really a question of in- 
 25 Md. 541; Louisville ». McKean, 18 B. tention," says Wagner, J., and the inten- 
 Mon. 9; Cumberland a. Magruder, 34 tion was regarded as manifest from the 
 Md. 381, 1871 ; Commrs. Central Patk, scope and purpose of the whole act, aU 
 
 VOL. 1. 8 
 
114 MUNICIPAL CORPORATIONS. [OH. V. 
 
 pose of the legislature. If both the general and the special acts 
 can stand, they will be construed accordingly. If one must give 
 way it will depend upon the supposed intention of the law-maker, 
 to be collected from the entire legislation, whether the charter is 
 superseded by the general statute, or whether the special charter 
 provisions apply to the municipality, in exclusion of the general 
 enactments. So particular provisions of charters should be read 
 and construed in the light of the whole instrument, of all pre- 
 ceding charters, of the general legislation of the state, and of the 
 object of the legislature in the erection of municipalities, as before 
 explained.^ 
 
 § 88. The presumption is not lightly to be indulged that the 
 legislature has ly implication repealed, as respects a particular 
 municipality or as respects all municipalities, laws of a general 
 nature, elsewhere in force throughout the state ; yet a charter or 
 special act passed subsequent to the general law, and plainly 
 irreconcilable with it, will, to the extent of the conflict operate fi 
 repeal of the latter by implication. But by a well-known rule, 
 founded on solid reasons, such repeals are not favored ; and the 
 principle of implied repeals ought to be applied with extreme 
 caution.'^ 
 
 though negative words^ or words of repeal, 33 N. J. 57, 60. See Bank v. Davis, 1 
 were used. State o. Sevarance, 55 Mo. McCarter Cli. (N. J.) 286; Clintonville v. 
 878, 1874; post, sec. 770. Keeting, 4 Denio, 341 ; Tierney w. Dodge, 
 The principle that jeneranejjs/aft'on on 9 Minn. 166. Other illustrations will be 
 ft particular subject must, in the absence found in tlie chapters on Ordinances and 
 of anything showing a different intent on Taxation, post, sec. 773; ante. sec. 86. 
 the part of the legislature, give way to ^ Alexandria v. Alexandria (taxing 
 inconsistent special legislation on ihn same power), 5 Cranch, 2, 1809; Grant on 
 subject, is recognized and applied in the Corp. 27 ; Canal Company v. Bailroad 
 following cases. State v. Morristown, 33 Company, 4 Gill & Johns. 1 ; Smith o. 
 N. J. Law, 57, 1868 ; Cross 7'. Morristown, Kernochen, 7 How. 198; Janesville b. 
 8 C. E. Green (18 N. J. Eq.). 305 ; State Markoe, 18 Wis. 350 ; ante, sees. 9, 22, 29. 
 V. Trenton, 7 "Vroom (36 N. J. L.), 198, Acts in pari materia should be construed 
 201 ; State v. Branin, 3 Zabr. (23 N. J. L.) together ; and on this principle, the defi- 
 484; State v. Clark, 1 Dutch. (N.J.) 54; nition of the word " owner," in a subse- 
 State V. Jersey City, 5 Ih. 170; Jersey quent paving act, was considered as 
 City V. Railroad Co., 20 N. J. Eq. 360; proper to be adverted to, and as applica- 
 Goddard, in re, 16 Pick. 504 ; Bailroad ble to the same word in prior acts on the 
 Co. V. Alexandria, supra. In Bank v. same subject. Holland v, Baltimore, 11 
 Bridges, 1 Vroom (30 N. J. L.), 112, and Md. 186, 1857. Provisions in a citi/ char- 
 State V. Miller, 76. 368, special laws ter, inconsistent with amendments to the con- 
 gave way to general laws, because the stitution of the state afterwards adopted 
 legislature had annexed to the latter a are void. Public School Trustees i'. 
 repealing clause, abrogating all inconsis- Taylor, 30 N. J. Eq. 618. 
 tent local or special acts. Per Depue, J., ^ gee cases cited to last preceding sec- 
 
§89.] 
 
 MUNICIPAL CHAKTEES. 
 
 115 
 
 Extent of Power. — Limitation. — Canons of Construction. 
 § 89. (55) It is a general and undisputed proposition of law 
 that a municipal corporation possesses and can exercise the follow- 
 ing powers, and no others: First, those granted in express words; 
 second, those necessarily or fairly implied in or incident to the 
 powers expressly granted ; third, those essential to the declared 
 objects and purposes of the corporation, — not simply convenient, 
 but indispensable.^ Any fair, reasonable doubt concerning the 
 
 tion; also, St. Louis w. Alexander, 23 
 Mo. 483; Baldwin v. Green, 10 Mo. 410; 
 State V. Binder, .S8 Mo. 451; State v. 
 Young (intoxicating liquors), 17 Kan. 
 414, 1877 (where the Kansas cases on the 
 subject are discussed by Horton, C. J.) ; 
 State V. Clarke, I Dutclier (N. J.), 54; 
 State V. Douglass, 4 Vroom (33 N. J. L.), 
 863; State v. Mills, 5 Vroom (34 N. J. 
 L.), 177, 180. The case of the State v. 
 Clark, 54 Mo. 17, 1873, B. c. 14 Am. Rep. 
 471, and of the State v. De Bar, 58 Mo. 
 895, 1874, relating to the social evil powers 
 of the city of St. Louis, are highly in- 
 structive on the question on the effect of 
 a special act upon the general law. In 
 eacli case the defendant was indicted 
 under the general criminal code of the 
 state which prohibited the keeping of 
 bawdy houses. In the first case the 
 defendant pleaded a license from the city 
 to keep such a house. In 1870 the 
 charter of the city was amended, and 
 the previous power to " suppress " such 
 houses was changed to the power " to pass 
 ordinances, not inconsistent with any law 
 of the state, to regulate or suppress " such 
 houses. Under this power to regulate, 
 the city regulated such houses bypassing 
 an ordinance licensing them ; and such 
 an ordinance was held to be valid not- 
 withstanding the general law, and to 
 have the effect to prevent the enforce- 
 ment of the general criminal law of the 
 state within the city of St. Louie. The 
 question was a close one, but the majority 
 opinion of Napton, J., in view of the 
 legislation recited in it, seems to be 
 sound. State v. Clark, 54 Mo. 17, 1873. 
 The next year, 1874, in consequence 
 of the decision, the charter of the city 
 was amended in this respect, by sub- 
 tituting the words " to suppress, but not 
 to license, bawdy houses." After this act 
 went into effect the State ». De Bar, sup-a, 
 arose. The defendant was indicted under 
 
 the general law of the state for keeping 
 such a house. There was another provi- 
 sion in the general law that the repeal of 
 a law shall not by implication revive a 
 former law. And it was held by a ma- 
 jority of the court that the amendment of 
 1874, which repealed the former amend- 
 ment of 1870, did not thereby revive 
 the general criminal statute in the city 
 of St. Louis, and, as a consequence, that 
 the defendant could not be convicted. 
 This last decision seems to the author to 
 be erroneous, on the ground that the act 
 of 1870 did not ipso facto repeal the gen- 
 eral law in tlie city, but such repeal, or 
 suspension rather, was only effected when 
 the city passed the ordinance. If so, a 
 repeal of the ordinance by the council, 
 without the act of 1874, would have, left 
 the general law of the state in force 
 witl)in the city, and its repeal by the act 
 of 1874 would have precisely the same 
 effect. These cases may be usefully con- 
 sulted on the nature and scope of the 
 power to "regulate." General power in a 
 municipal charter held not to repeal by 
 implication the chartered rights of a 
 railroad company. State v. Jersey City, 
 5 Duteher, 170. Nor to interfere with 
 vested rights. State v. Jersey City, 6 
 Vroom (34 N. J. L.), 32. 
 
 A charter which confers exclusive juris- 
 diction upon municipal authorities oper- 
 ates to repeal the general law on the same 
 subject within the municipality ; not so 
 ordinarily, when the charter confers con- 
 current authority. Seebold v. People, 86 
 III. 33, 1878. 
 
 1 Smith V. Newbern, 70 No. Car. 14, 
 1874; 8. c. 1(5 Am. 766. Referring to 
 the text, McAllister, J., in People v. How- 
 ard, not oflScially reported, says, " It is the 
 best summary of all the decisions upon 
 that point to be found in all the books." 
 Cook Co. V. McCrea, 93 111. 236, citing 
 and approving text. 
 
116 MUNICIPAL COEPOEATIONS. [oS. V. 
 
 existence of power is resolved by the courts against the corpora- 
 tion, and the power is denied. Of every municipal corporation 
 the charter or statute by which it is created is its organic act. 
 Neither the corporation nor its oiBcers can do any act, or make 
 any contract, or incur any liability, not authorized thereby. All 
 acts beyond the scope of the powers granted are void.' Much 
 less can any power be exercised, or any act done, which is for- 
 bidden by charter or statute. These principles are of transcend- 
 ent importance, and lie at the foundation of the law of municipal 
 corporations. Their reasonableness, their necessity, and their 
 salutary character have been often vindicated, but never more 
 forcibly than by the late learned Chief Justice Shaw, who, speak- 
 ing of municipal and public corporations, says : " They can exer- 
 cise 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 their 
 association. This principle is derived from the nature of corpo- 
 rations, the mode in which they are organized, and in which their 
 affairs must be conducted." 
 
 § 90. In aggregate corporations, as a general rule, the act and 
 will of a majority is deemed in law the act and will of the whole, 
 — as the act of the corporate body. The consequence is that 
 a minority must be bound not only without, but against, their 
 consent. Such an obligation may extend to every onerous 
 duty, — to pay money to an unlimited 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 de- 
 
 1 McCann v. Otoe Co., 9 Neb. 324; son, 5 Dutch. (N.J.) 104; State w. Marion 
 
 Stewart v. Otoe Co., 2 Neb. 177 ; S. C. Co., 21 Kan. 419 ; Green w. Cape May, 
 
 and P. R. R. Co. v. Washington Co., 3 41 N. J. L. 46; Lord v. Oconto, 47 Wis. 
 
 Neb. 42 ; Somerville v. Dickerman, 127 386 ; Garvey, in re, 77 N. Y. 623 ; Smith 
 
 Mass. 272 ; Boylston Market v. Boston, ». Newburgh, 77 N. Y. 130 ; Allen v. Gal- 
 
 113 Mass. 528 ; Harvard College v. Bos- veston, 61 Tex. 302 ; Dore v. Milwaukee, 
 
 ton, 104 Mass. 470; Brimmer v. Boston, 42 Wis. 18; Butler v. Nevins, 88 111. 675 
 
 102 Mass. 19; People b. Webber, 89 111. Kansas City v. Flanagan, 69 Mo. 22 
 
 347 ; Bryan v. Page, 51 Tex. 632 ; Fran- Bentley v. County Commrs., 25 Minn. 259 
 
 cis 1). Troy, 74 N. Y. 338 ; State v. Pas- Fulton o. Lincoln, 9 Neb. 358 ; Hurford 
 
 saic, 41 N. J. L. 90 ; Perrine v. Farr, 2 v. Omaha, 4 Neb. 350 ; Reis v. Graff, 51 
 
 Zabr. (22 N. J. L). 356 ; Cannon b. Mar- Cal. 86. Cook Co. v. McCrea, 93 lU. 236, 
 
 tin, 2 Dutch. (N.J.) 594; State ». Hud- citing and approving text. 
 
§ 91.] MUNICIPAL CHARTERS. 117 
 
 prived of his most valuable personal rights and liberties. The 
 security against this danger is in a steady adherence to the prin- 
 ciple stated, viz., that corporations can only exercise their powers 
 over their respective members, for the accomplishment of limited 
 and defined objects. And if this principle is important, as a gen- 
 eral rule of social right and municipal law, it is of the highest 
 importance in these states, where corporations have been ex- 
 tended and multiplied so as to embrace almost every object of 
 human concern.^ 
 
 § 91. "In this country, all corporations, whether public or 
 private, derive their powers from legislative grant, and can do 
 no act for which authority is not expressly given, or may not be 
 reasonably inferred. But if we were to say that they can do 
 nothing for which a warrant could not be found in the language 
 of their charters, we should deny them, in some cases, the power 
 of self-preservation, as well as many of the means necessary to 
 effect the essential objects of their incorporation. And therefore 
 it has long been an established principle in the law of corpora- 
 tions, that they may exercise all the powers within the fair intent 
 and purpose of their creation which are reasonably proper to give 
 
 1 Per Shaw, C. J., in Spaulding v. (Mich. 282; City Council w. Plank Road 
 
 Lowell, 23 Pick. 71, 74, 1839 ; Bangs v. Co., 81 Ala. 76 ; State v. Mayor, 6 Port. 
 
 Snow, 1 Mass. 181; Stetson v. Kempton, (Ala.) 279; Burnett, in re, 30 Ala. 461, 
 
 13 Mass. 272 ; Willard v. Newburyport, and cases cited ; Le Couteulx v. Buffalo, 
 
 12 Pick. 227 ; Keyes v. Westford, 17 33 N. Y. 333 ; Hayes v. Appleton, 24 Wis. 
 
 Pick. 273, 279 ; Comw. v. Turner, 1 Cush. 544 ; People v. Railroad Co., 12 Mich. 
 
 493, 495, 1848 ; Cooley v. Granville, 10 387 ; Vance v. Little Rock, 30 Ark. 435, 
 
 Cush. 67, 1852; Merriam v. Moody, 25 1876 ; Indianapolis ti. Indianapolis Gas 
 
 Iowa, 163, 1868; Minturn «. Larue, 23 Co., 66 Ind. 396. Text approved in the 
 
 How. 435 ; Lafayette v. Cox, 5 Ind. following cases : Noyes v. Mason, 5 N. 
 
 (Port.) 88, 1854; Paine v. Spratley, 6 W. R. 695; Frank, in re, 52 Cal. 606; 
 
 ^an. 625 ; Vincent v. Nantucket, 12 Green v. Cape May, 41 N. J. L. 45. 
 Cush. 103, 105 ; Clark v. Davenport, 14 " The powers of all corporations are h'm- 
 
 lowa, 494 ; Mays v. Cincinnati, 1 Ohio ited hy the grants in their charters, and can- 
 
 St. 268 ; Gallia Co. v. Holcomb, 7 Ohio, not extend beyond them." Per Breese, J., 
 
 Part I. 232 ; Commrs. v. Mighels, 7 Ohio Petersburg v. Metzger, 21 111. 205. " Cor- 
 
 St. 109; Fitch v. Pinckard (taxing pow- porations have only such rights and 
 
 er) 4 Scam. (5 111.) 78; Caldwell v. Alton powers as are expressly granted to them, 
 
 (market ordinance), 33111.416; Trustees, or as are necessary to carry into efleet 
 
 etc. 0. McConnel, 12 111.140; Louisiana the rights and powers so granted." Per 
 
 State Bank i>. New Orleans Nav. Co., 3 Starrs, J., in New London u. Brainard 
 
 La. An. 294; State w. Mayor, etc. (market (illegal appropriation of money to cele- 
 
 liouse case), 5 Port. (Ala.) 279; Head v. brate 4th of July), 22 Conn. 552, 1853, 
 
 Ins. Co., 2 Cranch, 168; De Russey o. approving Stetson v. Kempton, 13 Mass. 
 
 i)avis (sale of ferry lease), 13 La. An. 272; Hodge v. Buffalo, 2 Denio, 110; 
 
 468; People v. Bank, etc., 1 Doug, ante, sec. 29. 
 
118 
 
 MITNICIPAL CORPORATIONS. 
 
 [CH. V. 
 
 effect to powers expressly granted. In doing this, they must 
 [unless restricted in this respect] have a choice of means adapted 
 to ends, and are not to be confined to any one mode of opera- 
 tion." 1 The incidental powers of a municipal corporation must 
 be. germane to the purposes for which it is created.^ 
 
 Courts adopt a strict, rather than liberal construction of powers : 
 " It is a well settled rule of construction of grants by the legisla- 
 ture to corporations, whether public or private, that only such 
 powers and rights can be exercisdH under them as are clearly 
 comprehended within the words of the act, or derived therefrom 
 by necessary implication, regard being had to the objects of the 
 grant. Any ambiguity or doubt arising out of the terms used by 
 the legislature must be resolved in favor of the public." ^ These 
 
 the grants of powers contained in their 
 charters " or acts of incorporation. La- 
 fayette V. Cox, 5Ind. (Porter) 38, 1854. 
 "It is proper, too, that these powers 
 should be strictly construed, considering 
 with how little care chartered privileges 
 are these days granted." Bank v. Chili- 
 cothe, 7 Ohio, Part II. 31, 35, 1836, per 
 Hitchcock, 3. ; Collins v. Hatch, 18 Ohio, 
 523. " Boroughs and towns are, confess- 
 edly, inferior corporations. They act not 
 by any inherent right of legislation, like 
 the legislature of the state, but their 
 authority is delegated, and their powers, 
 therefore, must be strictly pursued. 
 Within the limits of their charter, their 
 acts are valid ; without it, they arc void." 
 Willard v. Killingworth, 8 Conn. 247, per 
 Daggett, J., approved 10 lb. 442. " The 
 action of municipal corporations is to be 
 held strictly within the limits prescribed 
 by statute. Within these limits, they are 
 to be favored by the courts. Powers ex- 
 pressly granted, or necessarily implied, 
 are not to be defeated or impaired by a 
 stringent construction." Smith ». Madi- 
 son, 7 Ind. 86 ; Kyle v. Malin, 8 lb. 34, 
 57, per Stuart, J. ; Memphis v. Adams 
 (implied power to employ an attorney), 9 
 Heisk (Tenn.) 518; s. c. 24 Am. Rep. 
 331. Per Nicholson, C. J. A municipal 
 corporation has no right to appropriate its 
 revenues to obtain an increase of its 
 powers, through persons sent by the city 
 council to appear before the State Gen- 
 eral Assembly and Congress. Henderson 
 V. Covington, 14 Bush (Ky.), 312. 
 
 In concluding this note, the author 
 
 ' Bridgeport v. Railroad Co., 15 Conn. 
 475, 501, 1843. Per Church, J. 
 
 2 Mayor ». Yuille, 3 Ala. 137 (license 
 to bakers) ; Harris o. Intendant, 28 lb. 
 577 (retailing liquors); Intendant v. Chan- 
 dler, 6 lb. 899 (retailing liquors). 
 
 » Minturn v. Larue, 23 How. 435, 436, 
 1859. Per Nelson, J., construing muni- 
 cipal charter as to ferry rights of corpora- 
 tion thereunder. 
 
 In subsequent cases, the Supreme 
 Court has said that a municipal ' cor- 
 poration " can exercise no power which 
 is not, in express terms or by /air im- 
 plication, conferred upon it." Thomp- 
 son •«. Lee Co., 3 Wall. .320; Thomas 
 V. Richmond, United States Supreme 
 Court, December Term, 1871, 12 Wall. 
 349; s. p. Clark ». Davenport, 14 Iowa, 
 495; Merriam v. Moody's executors, 25 
 Iowa, 163 ; Nichol v. Mayor, etc., 9 
 Humph. 252 ; Leonard v. Canton, 35 
 Miss. 189, where Fisher, J., gives a clear 
 exposition of the rationale of the doctrine 
 that corporate grants should be strictly 
 construed. Douglass v. Placerville, 18 
 Cal. 648, 647 ; Argenti v. San Francisco, 
 16 Cal. 282 ; Wallace v. San Jose, 29 Cal. 
 180. With us, cities, towns, and munici- 
 pal corporations of all kinds are created 
 and endowed with powers by the legisla- 
 ture. These are of a legislative and ad- 
 ministrative character, to aid in the bet- 
 ter government of localities or portions 
 of the state. This power exists no fur- 
 ther than it has been delegated. And 
 municipal corporations, in their action, 
 are confined " to a strict construction of 
 
§ 93.] MUNICIPAL CHARTERS. 119 
 
 general principles of law are indisputably settled, but difficulty 
 is often experienced in their application, on account of the com- 
 plex character of municipal duties, and the various, miscellaneous, 
 and frequently indefinite purposes or objects which municipali- 
 ties are authorized to execute or carry into operation.^ 
 
 Usage as affecting Municipal Powers. 
 
 § 92. (56) In England municipal corporations claim and exer- 
 cise many powers wholly in virtue of long-established usage, or 
 of prescription, which implies a lost charter conferring such 
 powers.^ Indeed, from immemorial usage, powers are recognized 
 as valid which could not lawfully originate in a royal charter. 
 A usage to give a right must, however, be long established, and 
 forty years' duration was not considered, of itself, to be suf- 
 ficient for this purpose.^ But usage in this country has a much 
 more limited operation. It is a necessary result of the manner 
 in which our municipal corporations are created — viz., by express 
 legislative act, wherein their powers and duties are wholly pre- 
 scribed — that the powers themselves cannot be added to, enlarged, 
 or diminished by proof of usage. 
 
 § 93. (57) In a case in Massachusetts, the learned Chief 
 Justice Bigelow, after stating the decision of the Supreme Court, 
 that towns in Massachusetts had no authority to appropriate 
 money for the celebration of the Fourth of July, remarks, in 
 relation to the attempt to sustain the appropriation on the ground 
 
 thinlcs it pertinent to remark that the prin- or abridge natural or common rights, or 
 
 ciple of strict construction should not be divest them of their property, the doubt 
 
 pressed in any case to such an unreason- should be resolved in favor of the citizen, 
 
 able extent as to defeat the legislative and against the municipality. Infra, sec. 
 
 purpose fairly appearing upon the entire 109 ; Logan v. Fyne, 43 Iowa, 524, 1876 ; 
 
 charter or enactment. Perhaps the rule s. c. 22 Am. Eep. 261. 
 as it is briefly expressed in the text best ' Spaulding v. Lowell, 2-3 Pick. 71 ; 
 
 embodies the result of the adjudications ante, sees. 8-28 ; post, ch. vi. where some 
 
 upon this point, namely : If, upon the of these miscellaneous or special powers 
 
 whole, there be fair, reasonable, and sub- are considered. 
 
 Btantial doubt whether the legislature * Ante, ch. ii. sec. 29 ; ch. iii. sec. 32. 
 intended to confer the authority in ques- ' Chad v. Tilsed, 5 J. B. Moore, 185. 
 
 tion, particularly if it relates to a matter As to the proper office of usage in Eng- 
 
 extra-municipal or unusual in its nature, land, both as a source of power and to aid 
 
 and the exercise of which will be attended in the interpretation of charters, see 
 
 with taxes, tolls, assessments, or burdens Grant on Corp. 19, 27, 28, 29, 552, 564. 
 upon the inhabitants, or oppress them. 
 
120 MUNICIPAL COBPORATIONS. [CH. T. 
 
 of usage : " Usage cannot alter the case. An unlawful expend- 
 iture of money by a town cannot be rendered valid by usage, 
 however long continued. Abuses of power and violations of 
 right derive no sanction from time or custom. A casual or occa- 
 sional exercise of a power by one or a few towns will not 
 constitute usage. It must not only be general and of long 
 continuance, but, what is more important, it must also be a 
 custom necessary to the exercise of some corporate power, or the 
 enjoyment of some corporate right, oi> which contributes essen- 
 tially to the necessities and convenience of the inhabitants. 
 The usage relied on in the present case would not satisfy either 
 of these last-named requisites, which are necessary to give it 
 validity." ^ But general and long-continued usage is not without 
 its importance, and usage of this character may be resorted to 
 in aid of a proper construction of the charter or statute, but no 
 further. If the language be uncertain or doubtful, a uniform, 
 long-established, and unquestioned usage will be regarded bj' 
 the courts in determining the mode in which powers may be 
 exercised, and to a reasonable extent in determining the scope 
 of the powers themselves ; but usage can have no room for 
 operation where the language of the enactment is plain and the 
 legislative intent is clear upon the face of it.^ 
 
 ^ Hood o. Lynn, 1 Allen (Mass.), 103, that place." Frazier v. Warfield (Inspec- 
 
 1861. Further as to usage consult Will- tion Act for Baltimore), 13 Md. 279, 303 ; 
 
 ard V. Newburyport, 12 Pick. 227 ; Spauld- s. p. Love v. Hinckley, Abt. Adm. 436 ; 
 
 ing V. Lowell, 23 Pick. 71 ; Smith v. see, also, Rex v. Chester, 1 Maule & 
 
 Cheshire, 13 Gray (Mass.), 308, 1859; Selw. 101; Rex v. Salway, 9 B. & C. 
 
 Butler V. Charlestown, 7 Gray, 12, 16, 424. 
 
 1856 ; Benoit v. Conway, 10 Allen, 528. Where the true construction of a 
 ' Smith ». Cheshire, 13 Gray, 308 ; charter admits of doubt, and the con- 
 Butler o. Charlestown, 7 Gray, 12, 16 ; struction adopted by the city authorities 
 Sherwin v. Bugbee (validity of school has been acquiesced in generally, and 
 meeting), 16 Vt. 439, 444, where iJerf/ieW, acted upon by third persons in good 
 J., remarks : " In construing statutes ap- faith, in their transactions with the city, 
 plicable to public corporations, courts it will be precluded by the courts in 
 will attach no sUght weight to ike uniform actions by such third parties from deny- 
 practice under them, if this practice has ing its construction to be the true one. 
 continued for a considerable period of Van Hostrup v. Madison City (on rail- 
 time." It is it rule "founded on reason road bonds), 1 Wall. (U. S.) 291, 1863; 
 and common sense," says the Court of Meyer i,-. Muscatine (on railroad bonds), 
 Appealsof Maryland, that "rfoafif^/uwrrfs lb. 384, 391; post, see. 420. Further as 
 in a general statute may be expounded with to estoppel, see chapter on Contracts, post, 
 reference to a general usage; and when a and Herman on Estoppel. Post, sees. 
 statute is applicable to a particular place only, 457, 560 n., 562 n., 591 n., oh. xxii., ch. 
 such words may be construed by usage at xxiii. 
 
§94.] 
 
 MUNICIPAL CHARTERS. 
 
 121 
 
 Discretionary Powers not Subject to Judicial Control. 
 
 § 94. (58) Power to do an act is often conferred upon muni- 
 cipal corporations, in general terms, without being accompanied 
 by any prescribed mode of exercising it. In such cases the com- 
 mon council, or governing body, necessarily have, to a greater or 
 less extent, a discretion as to the manner in which the power 
 shall be used.^ This discretion cannot be judicially interfered 
 with or questioned except where the power is exceeded or fraud is 
 imputed and shown or there is a manifest invasion of private 
 rights. TIius where the law or charter confers upon the city 
 council, or local legislature, power to determine upon the expedi- 
 ency or necessity of measures relating to the local government, 
 their judgment upon matters thus committed to them, while act- 
 ing within the scope of their authority, cannot be controlled by 
 the courts. In such case the decision of the proper corporate 
 ofiBcers is in the absence of fraud final and conclusive, unless 
 they transcend their powers.^ Thus, for example, if a city has 
 power to grade streets, the courts will not inquire into the neces- 
 
 I Railroad Co. v. Evansville (power 
 to subscribe stock and to borrow money), 
 15 Ind. 395, 18B0 ; Kelly v. Milwaukee, 
 18 Wis. 83 ; Slack v. Railroad Co., 13 B. 
 Mon. 1 ; Bridgeport v. Railroad Co., 15 
 Conn. 475, 501, 1843, per Church, J.; 
 Harrison v. Baltimore, 1 Gill (Md.), 264, 
 1843 ; Cincinnati v. Gwynne, 10 Ohio, 
 192; Markle v. Akron, 14 Ohio, 586. 
 Where a municipal corporation is en- 
 trusted with the execution of a power, 
 and is not confined to a particular mode, 
 but has a discretion in the choice of 
 means, a plain case of abuse must be 
 shown, resulting in an injury to the pe- 
 titioner, to warrant an injunction against 
 the corporation. Page v. St. Louis (special 
 assessment), 20 Mo. 136, 1853 ; Colton v. 
 Hanchett, 13 III. 615; Bush v. Carbondale, 
 78 111. 74, 1875 ; Mayor of Baltimore v. 
 Gill, 31 Md. 375 ; Holland v. Baltimore, 
 11 Md. 186; post, sec. 146; Dodd v. 
 Hartford, 25 Conn. 232; Sheldon v. 
 School District, lb. 224; Lockwood v. 
 St. Louis, 24 Mo. 20; Deane v. Todd, 22 
 Mo. 90; Mayor, etc. v. Meserole, 26 
 Wend. 132. See chapters on Contracts 
 and Taxation, /JOS<; Wells K.Atlanta, 43 
 Ga. 67, 1871; Coulson v. Portland, 
 Ueady R. 481, 1868; post, sees. 412, 
 
 ch. xxiii. In respect to the legislative 
 functions of a municipal body, the courts 
 are bound to presume that they will exer- 
 'cise any discretion with which they are 
 clothed properly, and that they had suflS- 
 cient reasons for doing an act, the result of 
 such discretion. Railroad Co. v. Mayor of 
 New York, 1 Hilton, 562, 1858; Des Moines 
 Gas Co. V. Des Moines, 44 Iowa, 508, 1876 ; 
 8. c. 24 Am. Rep. 756 ; ■pout, sec. 379. 
 
 By statute in Canada, certain superior 
 courts have power in their discretion to 
 set aside by-laws for illegality on the 
 application of persons interested, but 
 these courts will not entertain an applica- 
 tion to set aside a by-law on a matter of 
 fact, which, according to municipal act, or 
 a by-law passed under it, should be ascer- 
 tained and finally determined by an 
 officer of the corporation, unless perhaps 
 fraud or corrupt conduct be imputed to 
 such ofBcer. See Miehie and the Cor- 
 poration of the City of Toronto, in re, 11 
 Upper Can. C. P. 379. 
 
 2 Baker v. Boston, 12 Pick. 184 ; Ho- 
 vey V. Mayo, 43 Maine, 322, 1857 ; Fay, 
 petitioner, 15 Pick. 243, 1834 ; Parks v. 
 Boston, 8 Pick. 218, 1829; Danielly u. 
 Cabaniss, 52 Ga., 211, 1874; Sheridan 
 V. Colvin, 78 111. 237, 1875. 
 
122 MUNICIPAL COEPOEATIONS. [CH. V. 
 
 sity of the exercise of it, or the refusal to exercise it, nor whether 
 a particular grade adopted, or a particular mode of executing the 
 grade, is judicious.^ So if a city has power to build a market- 
 house, the courts cannot inquire into the size and fitness of the 
 building for the object intended.^ So in the absence of fraud, 
 the court refused to interfere by injunction with the action of the 
 city council in agreeing to rent a room for city purposes for 
 twenty years and to pay for the same in advance.^ 
 
 § 95. (59) So, also, where, by its charter, a municipal corpora- 
 tion is empowered, if it deems the public welfare or convenience 
 requires it, to open streets or make public improvements thereon, 
 its determination, whether wise or unwise, cannot be judicially 
 revised or corrected.* On the ground that it is the province of 
 the municipal authorities, and not of the judicial tribunals, to 
 determine what improvements shall be made in the streets and 
 highways of the corporation, the court, on application of citizens, 
 refused to compel a city to cover over an open draining canal of 
 long standing, it " not appearing to be a nuisance in the legal 
 sense of the word."^ So where it is made the duty of a city to 
 remove, as far as they may be able, every nuisance which may 
 endanger health, the courts, unless the power be transcended, 
 cannot ordinaiily interfere." But the power to abate nuisances, 
 like all other municipal powers, must he reasonably exercised ; and 
 although the power be given to be exercised in any manner the 
 corporate authorities may deem expedient, it is not an unlimited 
 power, and such means only are intended as are reasonably neces- 
 sary for the public good; wanton or unnecessary injury to private 
 property and private rights are not thereby authorized.^ And 
 
 ' Hovey w. Mayo, street commissioner, 6 Gill (Md.), 391, 1848. Passing ordinan- 
 
 48 Me. 322, 1857; Benjamin w. Wheeler, ces in relation to opening, etc., of streets, 
 
 8 Gray, 409, 413, 1857. is the exercise of legislative, not judicial 
 
 2 Spaulding v. Lowell, 23 Pick. 71, 80, power. Wiggin v. Mayor, etc., of New 
 1839. So where a city has power to lease York, 9 Paige, 16, 1841. See chapter on 
 real estate at a "reasonable rent," the Eminent Domain, post. 
 
 council is to determine what is reasona- ^ Inhabitants v. New Orleans, 14 La. 
 
 ble, and their discretion in the absence of An. 452, 1859. 
 
 fraud cannot be judicially overthrown. 6 Baker u. Boston, 12 Pick. 184, 1831 ; 
 
 Schanck ». Mayor, 69 N. Y. 440, 1877. see also Kelly v. Milwaukee, 18 Wis. 83, 
 
 3 Moses V. Risdon, 46 Iowa, 251, 1877 ; 1864 ; Goodricrf* v. Chicago, 20 111. 445. 
 qacere, and compare Garrison v. Chicago, 7 Further as to nuisances, see chapter on 
 Bissell, 480, 1877. Ordinances, -post. Index — Nuisances. 
 
 1 Methodist P. Church, v. Baltimore, ' Baboook v. Buffalo, 56 N. Y. 268, 
 
96.] 
 
 MUNICIPAL CHARTERS. 
 
 123 
 
 generally the judicial tribunals will not interfere with municipal 
 corporations in their internal police and administrative gov- 
 ernment, unless some clear right has been withheld or wrong 
 perpetrated.^ 
 
 Public Powers and Trusts incapable of Delegation. 
 
 § 96; (60) The principle is a plain one, that the public powers 
 or trusts devolved by law or charter upon the council or govern- 
 ing body, to be exercised by it when and in such manner as it 
 shall judge best, cannot be delegated to others. Thus, where by 
 charter or statute, local improvements, to be assessed upon the 
 adjacent property owners, are to be constructed in " such manner 
 as the common council shall prescribe " by ordinance, it is not 
 competent for the council to pass an ordinance delegating or 
 leaving to any officer or committee of the corporation the power 
 to determine the mode, manner, or plan of the improvement. 
 Such an ordinance is void, since powers of this kind must be 
 exercised in strict conformity with the charter or incorporating 
 act.^ So, where a power, for example, the power to issue licenses, 
 
 1874, wliere the city was enjoined from 
 filling up plaintiff's slip in the canal, be- 
 cause, under the circumstances, it was 
 not a proper exercise of the power to abate 
 nuisances. 
 
 ' State V. Swearingen, 12 6a. 23; 
 post, ch. xxii. 
 
 2 State H. Hauser, 63 Ind. 155 ; State v. 
 Bell, 34 Ohio St. 194 ; Birdsall v. Clark, 73 
 N. Y. 73; N.Y. etc. Trustees, m re, 57 How. 
 Pr. 600 ; Thompson v. Schermerhorn, 6 N. 
 Y. (2 Seld.) 92, 1851, relating to grading 
 and levelling streets; affirming s. c. 9 
 Barb. 152, and 'approving in the main 
 the views there expressed by Mr. Justice 
 Cady. Brooklyn v. Breslin, 57 N. Y. 
 591, 1874 ; distinguishing Thompson v. 
 Schermerhorn, supra. State w. Jersey City, 
 1 Dutch. (N.J.) 309 ; see 4 lb. 500; post, 
 sees. 357, 716, 780 ; Indianapolis v. Indian- 
 apolis Gas Co., 66 Ind. 396, citing this 
 section. Same principle applied in simi- 
 lar case, Kuggles u. Collier, 43 Mo. 359, 
 1869, holding that where the charter gave 
 the city power to require streets to he paved, 
 " in all cases where the eitij coanril shall 
 deem it necessary," it could not by ordi- 
 nance make the mayor the judge of the 
 necessity for paving. Beaffirmed but 
 
 distinguished, Shehan v. Gleeson, 46 Mo. 
 100, 1870; East St. Louis v. Wehrung, 
 50 111. 28, 1869. So, where the charter 
 gives the city council power to construct 
 sewers of such "dimensions as may be 
 prescribed by ordinance," the council 
 cannot, by ordinance, require sewers to 
 be constructed of such dimensions as may 
 be deemed requisite by the city engineer. 
 St. Louis i>. Clemens, 43 Mo. 395, 1869, 
 overruling St. Louis v. Eters, 36 Mo. 456 ; 
 reafSrmed,^ St. Louis v. Clemens, 52 Mo. 
 133, 1873 ; Jackson Co. v. Brush, 77 111. 
 59, issuing bonds. See further. State v. 
 New Brunswick, 1 Vroom (30 N. J. L.), 
 395, 1863; Meuser v. Risdon, 36 Cal. 239; 
 Hydes v. Joyes, 4 Bush (Ky.), 464 ; Dar- 
 ling V. St. Paul, 19 Minn. 389, 1872, citing 
 text. The doctrine of the text applied 
 where u, city, empowered to erect and 
 regulate public wharves, and fix the rates 
 of wharfage thereat, undertook to lease 
 the wharf, farm out its revenues, and 
 delegate a person to fix the rates. Mat- 
 thews V. Alexandria, 68 Mo. 115; post, 
 chapter on Taxation. So, where a char- 
 ter directed the common council to appoint 
 a time when persons interested in an ap- 
 plication Jbr opening a street would be heard. 
 
124 
 
 MUNICIPAL COKPOKATIONS. 
 
 [CH. V. 
 
 is granted by law, or by an ordinance duly passed, to the mayor 
 and aldermen, they are constituted to act as one deliberative 
 body, to the end that they may assist each other by their united 
 wisdom and experience, and the result of their conference be the 
 ground of their determination ; and where this is the case, the 
 board of aldermen cannot, even by a vote, delegate the power 
 to the mayor alone.^ But the principle that municipal powers 
 or discretion cannot be delegated does not prevent a corpora- 
 tion from appointing agents and empowering them to make 
 contracts, nor from appointing committees and investing them 
 with duties of a ministerial or administrative character.^ 
 
 A municipal council having authority to pave streets at the 
 
 the council must itself fix the time, and 
 cannot delegate that duty to the clerk. 
 If it does so, its proceedings will be set 
 aside on certiorari or other direct proceed- 
 ing. State V. Jersey City, 1 Dutch. (N. 
 J.) 309, 1855; State v. Jersey City, 2 lb. 
 444, 447 ; State v. Patterson, 34 N. J. L. 
 163, 1870. The text is cited and ap- 
 proved in the following cases : Birdsall v. 
 Clark, 73 N. Y. 73 ; State .;. Trenton, 42 
 N. J. L. 74.; Parker ». New Brunswick, 1 
 Vroom (30 N. J. L. ), 395 ; State v. Patter- 
 son, 5 Vroom (34 N. J. L.), 163. A mu- 
 nicipal corporation cannot delegate powers 
 conferred upon and to be exercised by it 
 to a street committee or others. Whyte v. 
 Mayor (sidewalk assessment), 2 Swan 
 (Tenn.), 364, 1852. See Smith t. Morse, 
 2 Cal. 524; Oakland v. Carpentier, 13 
 Oal. 540; Whyte ^. Nashville, 2 Swan 
 (Tenn.), 364; compare State v. Atlantic 
 City, 6 Vroom (34 N. J. L.j, 99, 108. See 
 Brooklyn v. Breslin, 57 N. Y. 591, 1874, 
 distinguishing Thompson v. Scliermer- 
 horn, supra. A delegation of power is valid 
 when expressly authorized by the legisla- 
 ture. Brooklyn v. Breslin, svpra; State 
 V. Patterson, 5 Vroom (34 N. J. L.), 163 ; 
 post, sees. 716, 779. 
 
 1 Day V. Green, 4 Cush. 433, 1849, and 
 oases tJiere cited. Further, as to delega- 
 tion of power, Coffin v. Nantucket, 5 Cush. 
 269, 1850 ; Ruggles v. Nantucket, 11 Cush. 
 433 ; Clark ». 'Washington, 12 Wheat. 40, 
 64, 1827 ; Cooley, Const. Lim. 204 ; Rail- 
 way Co. V. Baltimore, 21 Md. 93, 1863. 
 
 A grant by the council of a corpora^ 
 tion to build a street railroad must be made 
 by ordinance directly to the parties to be 
 
 therein named, and the authority to make the 
 grant cannot be delegated by the council te any 
 officer or board. State v. Bell, 34 Ohio St. 
 194. So where the city built a pier in re- 
 spect of whicli it was authorized to fix tolls 
 for its use and collect the same. It leased 
 it to a party ; failing to keep the pier in re- 
 pair the lessee brought an action for dam- 
 ages ; the power of the council not being 
 subject to delegation the lease was de- 
 clared void. Lord V. Oconto, 47 Wis. 386; 
 8. p. Lauenstein u. Fond du Lao, 28 Wis. 
 336 ; Mullarky u. Cedar Palls, 19 Iowa, 
 21 ; Gale v. Kalamazoo, 23 Mich. 344 ; Mil- 
 hau II. Sharp, 19 Barb. 435 ; Rogers v. Col- 
 lier, 43 Mo. 359; East St. Louis v. Weh- 
 rung, 50 111. 28. "Any work not done 
 within the time specified, required the 
 common council to cause to be done" 
 by contract or otherwise. The ordinance 
 was that the superintendent of streets 
 should "cause the work to be done," 
 thus delegating the precise authority 
 conferred upon it. The charter con- 
 ferred the power to cause it to be done, 
 by contract or otherwise ; this requires 
 the exercise of discretion and judgment 
 as to the manner in which the work should 
 be done. The legislature says it must be 
 the judgment of the council, and they 
 attempt to invest the superintendent of 
 streets with its exercise. This they had 
 no power to do, and they could not dele- 
 gate the power thus conferred. Birdsall 
 B. Clark, 73 N. Y. 73. 
 
 2 Railroad Co. v. Marion Co., 36 Mo. 
 294 ; Schenley v. Commonwealth, 36 Pa. 
 St. 62. See chapters on Contracts and 
 Corporate Meetings, jyost. 
 
§ 97.] MUNICIPAL CHARTERS. 125 
 
 primary expense of the city, directed the making of the pave- 
 ments of one or the other of specified materials, but giving to 
 the owners of abutting lots, on whom the expense would ulti- 
 mately fall, the privilege of selecting which, and reserving to the 
 street committee the authority to select, in case the lot owners 
 failed, and authorized the mayor to execute a contract accord- 
 ingly, which was done. It was objected by the city that this 
 contract was invalid. 1, because the city could not delegate 
 the power to the mayor to make it ; and 2, because the mayor 
 could not delegate to the lot owners the power of determining 
 the kind of materials. The Supreme Court of the United States, 
 while admitting that "the council could not delegate all the 
 power conferred upon it " in this respect, yet held that it could 
 do its ministerial work by agents, and that there was here no 
 unlawful delegation of power.^ 
 
 Legislative Powers incapable of Surrender. 
 
 § 97. (61) Powers are conferred upon municipal corporations 
 for public purposes ; and as their legislative powers cannot, as we 
 have just seen, be delegated, so they cannot he bargained or bartered 
 away. Such corporations may make authorized contracts, but 
 they have no power, as a party, to make contracts or pass by-laws 
 which shall cede away, control, or embarrass their legislative or 
 governmental powers, or which shall disable them from per- 
 forming their public duties.^ The cases cited illustrate this 
 
 1 Hitchcock V. Galveston, 96 TT. S. Bush (Ky.). 127; People's Railroad v. 
 
 341, 1877. If a contract should be invalid Memphis Bailroad, 10 Wall. 38, 50, 1869 ; 
 
 because of the delegation of powers, it Presb. Church v. Mayor, etc. of New York, 
 
 may be ratified by tlie council. lb. 5 Cow. 538, 1826 ; followed, Stuyvesant 
 
 'i Richmond Gaslight Co. v. Middle- ». Mayor, etc. of N. Y., 7 Cow. 588 ; Sav. 
 town (gas contract), 69 N. Y. 228, 1874; Fund v. Philadelphia, 31 Pa. St. 175; 
 Lord ». Oconto, 47 Wis. 386, approving Mayor, etc. of Albany, in re, 23 Wend, 
 text; Matthews v. Alexandria, 68 Mo. 277; Railroad Co. ». Mayor, etc., 1 Hilt. 
 115 ; Bodine v. Trenton (boundaries of 562, 568 ; Martin v. Mayor, etc., 1 Hill 
 streets), 7 Vroom (36 N. J. L.), 198; (N.Y.), 545, 1841; Goszler W.Georgetown, 
 State V. New Brunswick, 1 Vroom (31 6 Wheat. 593; Sedgw. Const, and St. 
 N. J. L), 395; Indianapolis a. Indian- Law, 684; State v. Graves, 19 Md. 351, 
 apolis Gas Co., 66 Ind. 396, approving 373, 1862 ; Bryson v. Philadelphia, 47 Pa. 
 text. Milhau v. Sharp, 27 N. Y. 611, 1863 ; St. 829 ; Cooley, Const. Lim. 206 ; Albany 
 III. etc. Co. ti. St. Louis, 2 Dillon C. C. St., 6 Abb. Pr. R. 273 ; Britton v. Mayor, 
 Rep. 70; Gale ». Kalamazoo (market- etc. of N. Y., 21 How. Pr. R. 261; New 
 house contract), 23 Mich. 344, 1871 ; s. o. York v. Second Av., etc. Co., 32 N. Y. 
 9 Am. Rep. 80 ; Louisville City Railroad 261 ; Dingman v. People, 51 111. 277 ; Brim- 
 Co. V. Louisville, 8 Bush (Ky.), 415, 1871 ; mer v. Boston, 102 Mass. 19, 18G9 ; John- 
 Covingtdn, etc. R. R. Co. v. Covington, 9 son ». Philadelphia, 60 Pa. St. 445 ; State 
 
126 MUNICIPAL COEPORATIONS. [CH. V. 
 
 salutary principle in a great variety of circumstances, and, for 
 the protection of the citizen, it is of the first importance that 
 it shall be maintained by the courts in its full scope and vigor. 
 
 Mandatory and Discretionary Powers. 
 
 § 98. (62) It often becomes a question whether a duty, im- 
 posed by law or charter upon municipal corporations or public 
 officers, is imperative or discretionary. This is always a question 
 of legislative intention.. The general tests to ascertain this in- 
 tention, propounded in the cases cited, are of doubtful value. 
 The words that a corporation, or officer, " may " act in a certain 
 way, or that it " shall be lawful " to act in a certain Avay, may 
 be imperative. On this subject some of the cases declare the 
 doctrine that what public corporations or officers are empow- 
 ered to do for others, and that which is beneficial to them or to 
 the public to have done, the law holds they ought to do, espe- 
 cially if the law specifically or adequately supplies them with the 
 means of executing the power. The power in such cases is con- 
 ferred for the benefit of others or to the public ; and the intent 
 of the legislature, which is the test in such eases, ordinarily seems, 
 under such circumstances, to be to impose a positive and abso- 
 lute duty. But, under other circumstances, where the act to be 
 
 V. Cin. Gas Co., 18 Ohio St. 262, 295 ; any wharf, the mooring of vessels at 
 
 Jackson v. Bowman. 39 Miss. 671, 1861 ; such wharf," such a by-law is not 
 
 Oakland v. Carpentier, 13 Cal. 540, 1859, void as delegating to the superintendent 
 
 opinion of Baldwin, J. ; Smith v. Morse, of wharves the making of regulations 
 
 2 Cal. 524 ; Louisville City Railway v. which the charter gave the council alone 
 
 Louisville, 8 Bush (Ky.), 415 ; Karst v. the power to make. Gregory v. Bridge- 
 
 St. Paul, etc. R. R. Co., 22 Minn. 118, port, 41 Conn. 76, 1874. 
 1875 ; ante, sec. 54 and note ; post, sees. One legislature, in the enactment of laws, 
 
 692, 716. Compare Attorney General v. cannot, by contract, put it out of the power of 
 
 Mayor, etc. of N. Y., 3 Duer, 119, 131, a subsequent legislature to repeal or amend 
 
 147 ; Davis v. Same, 14 N. Y. (4 Kern.) them; cannot thus surrender a portion of 
 
 606, 532 ; Costar v. Brush, 25 Wend. 628 ; its sovereign power. Debolt «. Ins. and 
 
 Brooklyn v. City Railroad Co., 47 N. Y. Trust Co., 1 Ohio St. 564 ; Plank R. Co. 
 
 475, 1872. V. Husted, 3 76. 578, per Bartky, C. J., 
 
 Where the charter gave the common dissenting; Matheny v. Golden, 5 Ohio 
 
 council power to " ordain by-laws relating St. 375 ; Mott v. Pa. Railroad Co., 80 Pa. 
 
 to wharves, and the anchoring, moving, St. 9, 1858. But see, in Supreme Court 
 
 and mooring of vessels " and " to ap- ai the United States, Home v. Rouse, 8 
 
 point all necessary officers to carry the by- Wall. 430, and prior cases cited, and the 
 
 laws into effect " and the council passed vigorous dissent, Ih. 441, which seems, 
 
 a by-law, creating the office of superintend- were the question open, to be the sound 
 
 ent of wharves, and giving him "full view. Cooley, Const. Lim. 127, 280; 
 
 power to order and regulate, whenever Sedg. Const, and St. Law, 616, 688 j 
 
 requested by the owner or lessee of post, sees. 885, 692, 716. 
 
§ 99.] 
 
 MUNICIPAL CHARTERS. 
 
 done does not affect third persons, and is not clearly beneficial 
 to them or the public, and the means for its performance are 
 not thus supplied, the words, " may " do an act, or it is " lawful " 
 to do it, do not mean " must," but rather indicate an intent in 
 the legislature to confer a discretionary power.^ Each case, we 
 repeat, must be largely decided on its own circumstances, and 
 the legislative intent gathered from the whole act. No positive 
 or stereotyped rule can be laid down. 
 
 § 99. (63) It is also sometimes difficult to determine whether 
 specific duties prescribed by the charter or incorporating act rest 
 upon the corporation, or upon the aldermen or other officers named, 
 in their individual capacity. The question also is one of con- 
 struction. The general rule is this : that where powers pertair- 
 
 ' Mason v. Fearson (duty of city un- 
 der tax law), 9 How. (U. S.) 248, 259, per 
 WoodbuTji, J., and authorities there cited. 
 In Hurford v. Omaha, 4 Neb. 336, .350, 
 1876, the subject is fully examined, and 
 certain tests to ascertain the legislative in- 
 tention are stated. Veazie v. China, 50 Me. 
 526. It is the settled doctrine in New 
 York, that where a public or municipal cor- 
 poration or body is invested with power 
 to do an act which the public interests re- 
 quire to be done, and the means for its 
 complete performance are placed at its 
 disposal, not only the execution, but the 
 proper execution of the power, may be 
 insisted on as a duty, though the statute 
 conferring it be only permissive in its 
 terms. Mayor, etc. of New York v. 
 Furze, 3 Hill, 612, holding corporation 
 liable for omitting its duty to repair sew- 
 ers, although it would not have been 
 liable for omitting to have constructed 
 them originally. Approved, 16 N. Y. 
 162, note, per Selden, J. ; per Denio, J., 9 
 N. Y. 168, 458 ; per Allen, J., Ih. 461. 
 The same doctrine has been declared in 
 New Jersey, State v. Newark, 4 Dutch. 
 491 ; Seiple v. Elizabeth, 3 Dutch. 407 ; 
 Keed v. Bainbridge, 1 Southard, 361, 358; 
 Compare Reock v. Newark, 4 Vroom 
 (33 N. J. L.), 129. See, further, the 
 chapter on Actions, post, ch. xxiii. 
 
 When words are imperative, and when 
 directory, see further, Grant Corp. 84, 
 35; Rex v. Mayor, etc. of Hastings, 5 
 Barn. & Aid. 592, note ; Attorney General 
 
 0. Lock, 3 Atk. 164 ; Rex v. Mayor, etc. 
 of Chester, 1 Maule & Sel. 101 ; Rex v. 
 Bailiffs, etc., 1 Barn. & Cress. 86; 3 lb. 
 272 ; Railroad Co. o. Platte Co., 42 Mo. 
 171 ; Railroad Co. v. Buchanan Co., 39 
 Mo. 485; Grant o. Erie, 69 Pa. St. 420; 
 8. c. 8 Am. Rep. 272 ; Goodrich v. Clii- 
 cago, 20 111. 445, authority to city " to 
 remove all obstructions in the harbor," 
 held not imperative. lb. Ottawa w. People, 
 48 111. 233 ; Carr v. North Liberties, 35 
 Pa. St. 324 ; Joliet v. Verley, 35 III. 58 , 
 Wilson V. Mayor, etc., 1 Denio, 595. 
 An act that " the city council are hereby 
 authorized to elect a recorder, in whom 
 they may vest exclusive jurisdiction of 
 all violations of their ordinances," im- 
 poses the duty to elect this oflScer. The 
 language is injunctive, and not discre- 
 tionary. Vason 0. Augusta, 38 Ga. 542, 
 1868. The expression, in a supplemental 
 charter, " it shall be lawful," construed not 
 to enjoin an imperative duty on the cor- 
 poration. Seiple u. Elizabeth, 3 Dutch. 
 (N. J.) 407; Steines i-. Franklin Co., 48 
 Mo. 167, 1871. Pricate Action for Breach 
 of statutory duty when, Heeny v. SpragUe, 
 11 Rho. Is. 456; s. c. 23 Am. 602. Such 
 is the rule in the English Courts. Ad- 
 dison on Torts (4 Eng Ed. 1064). When 
 the charter provision is that the mayor 
 and aldermen should choose the sites for 
 public markets, this duty cannot be dele- 
 gated to commissioners. State v. Patter- 
 son, 5 Vroom (34 N. J. L.), 163. See post, 
 sees. 882, 836, 848. 
 
128 MUNICIPAL COEPOKATIONS. [Cfl. V. 
 
 ing to the duties of a corporation are conferred upon those who 
 officially represent the corporation, these powers, unless the con- 
 trary appear, are deemed to be conferred upon them in their 
 corporate, not their individual character ; in other words, upon 
 the corporation itself.^ 
 
 Exemption of Revenues from Judicial Seizure for Debts. 
 
 § 100. (64) Municipal corporations are instituted by the 
 supreme authority of a state for the public good. They exercise, 
 by delegation from the legislature, a portion of the sovereign 
 power. The main object of their creation is to act as administra- 
 tive agencies for the state, and to provide for the police and local 
 government of certain designated civil divisions of its territory.^ 
 To this end they are invested with governmental powers and 
 charged with civil, political, and municipal duties. To enable 
 them beneficially to exercise these powers and discharge these 
 duties, they are clothed with the authority to raise revenues by 
 taxation and other modes, as by fines and penalties. The revenue 
 of the public corporation is the essential means by which it is 
 enabled to perform its appointed work. Deprived of its regular 
 and adeqiiate supply of revenue, such a corporation is practically 
 destroyed, and the very ends of its erection thwarted. Based 
 upon considerations of this character, it is the settled doctrine of 
 the law that the taxes and public revenues of such corporations 
 cannot be seized under execution against them,^ either in the 
 treasury or when in transit to it. Judgments rendered for taxes, 
 and the proceeds of such judgments in the hands of officers of 
 the law, are not subject to execution unless so declared by stat- 
 ute. The doctrine of the inviolability of the public revenues by 
 the creditor is maintained, although the corporation is in debt, 
 
 1 Conrad v. Ithaca, 16 N. Y. 158, per tinguishing People v. Nostrand, where the 
 
 Selden, J., p. 170 ; Hickok v. Plattsburg, statute provided for filling the vacancy 
 
 15 Barb. S. C. 427 ; Glidden ». Unity, 10 in the commission. 
 
 Fost. (30 N. H.) 104, 119 ; post, ch. xxiii. Where all are notified to attend, a ma- 
 
 A power conferred by statute upon three jority may act. Post, sec. 221, note; W. 
 
 or more persons as commissioners or other- B. Astor v. New York, 62 N. Y. 567, 1875 ; 
 
 wise, for a public purpose, is not extin- John Jacob Astor v. New York, 62 N. Y. 
 
 gnished by the death of one, where no 580. Presumption as to notice, Ih. post, 
 
 provision exists for filling the vacancy, but ch. xxiii. 
 
 vests in the survivors. People «. Palmer, ' Ante, ch. ii. sees. 9, 28. 
 
 52 N. Y. 83, 1878 ; People v. Mayor, etc. ' Brown v. Gates, Treasurer, etc., 15 
 
 of Syracuse, 63 N. Y. 291, 297, 1875, dig- W. Va. 181. 
 
§ 101.] 
 
 MUNICIPAL CHARTEKS. 
 
 129 
 
 and Jjas no means of payment but the taxes which it is author- 
 ized to collect.^ 
 
 § 101. (65) Upon similar considerations of public policy, muni- 
 cipal corporations and their officers have usually, though not 
 uniformly, been considered not to he suhjeet to garnishment, 
 although private corporations, equally with natural persons, are 
 liable to this process. The cases on the subject, as respects muni- 
 cipal corporations, are referred to in the note, and it will be seen, 
 on examination, that some of them turn on the construction of 
 particular statutes, and that the judges differ in opinion respect- 
 ing the policy and expediency of subjecting, upon general princi- 
 ples, such corporations to the process of garnishment. The 
 author suggests, where the question is left entirely open by stat- 
 
 ' Edgerton v. Municipality, 1 Liu An. 
 436, 1846, where the subject is ably dis- 
 cussed in the opinion of Rost, J. He says : 
 " On the first view of this question there 
 is something very repugnant to the moral 
 sense in the idea that a municipal corpo- 
 ration should contract debts, and that, 
 having no resources but the taxes which 
 are due to it, these should iiot be .sub- 
 jected by legal process to the satisfaction 
 of its creditors. This consideration, de- 
 duced from the principles of moral duty, 
 has only given way to the more enlarged 
 contemplation of the great and paramount 
 interests of public order and the princi- 
 ples of government." lb., 440; s. p. Mu- 
 nicipality V. Hart, 6 La. An. 570, 1861. 
 This case holds that ^ judgment in favor 
 of the corporation for a fine incurred for 
 a violation of a municipal ordinance is 
 CiXempt from execution ; but that an or- 
 dmarjj debt due the corporation (as on a 
 bond taken for paving) is liable to be 
 seized. But qucere f In Edgerton v. Mu- 
 nicipality, supra, it was decided that the 
 public taxes and revenues of the corpora- 
 tioin could not be seized under piecution, 
 notwithstanding the general provision of 
 :the Code of Practice of Louisiana, author- 
 Jising the seizure, under execution, of " all 
 sums of money which may be due to the 
 debtor in whatsoever right," — this gen- 
 ,en^l language being construed to refer 
 alone to. rights (^prapaiy, and not to taxes 
 Imposed for the protection of those rights. 
 So in the Railroad Co. v. Municipality, 7 
 VOL. I. 9 
 
 La. An. 148, 1852, it was held that per- 
 petual ground rents, created and intende,d 
 by the legislature to form part of the per- 
 manent revenue of the city to enable it 
 to exercise its municipal powers of police 
 and local government, cannot be sold o)n 
 execution against the corporation. In 
 Police Jury V. Michael, 4 La. An. 84, a 
 seizure by a creditor of public buildings, 
 etc., was enjoined. 
 
 The public nature of municipal corpo- 
 rations is well illiistrated by the decision 
 of the Supreme Court of the United 
 States in the late case of The United 
 States V. The Baltimore & Ohio Railroad 
 Co., ,17 Wall. 322, 1872. The case 
 involved the right of Congress to levy a 
 tax upon the income or property of a mu- 
 nicipal corporation ; and viewing such a 
 corporation as an arm of the state, and 
 partaking of the state's exemption froiji 
 llab^ity to be taxed upon the means and 
 instrumentalities employed in conducting 
 its operations, it was held that the tax 
 sought to be enforced under the Internal 
 Revenue Act could not be collected. Post, 
 sec. 776. See chapter on Taxation, post. 
 Property owned by a city as an invest- 
 ment of funds merely, held liqble to seiz- 
 ure on execution. New Orleans v. Insur- 
 ance Co., 23 La. An. 61, 1871. In this 
 case the court declare a distinction be- 
 tween it and Edgerton o. Municipality, 
 supra, and Police Jury v. Michfiel, 4 La. 
 An. 841, but quosrel Post, sees. 676, 860, 
 801,884. 
 
130 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. r. 
 
 ute, that, on principle, a municipal corporation should be exempt 
 from liability of this character with respect to its revenues and 
 the salaries of its officers, but that where it owes an ordinary 
 debt to a third person, the mere inconvenience of having to 
 answer as garnishee furnishes no sufficient reason for withdraw- 
 ing it from the reach of the remedies which the law gives to 
 creditors of natural persons and private corporations.^ 
 
 * The Supreme Court of Pennsylvania 
 Is of the opinion that, on principle, a mu- 
 nicipal corporation or its officers are not 
 subject to garnishment on attacliment or 
 execution, and that by the statutes of that 
 state, they are not made liable thereto. 
 Erie v. Knapp,-29 Pa. St. 173, 1857 ; Bulk- 
 ley V. Eckert, 3 Barr (Pa.), 368, per Sar- 
 geant, J. ; s. p. McDougal ». Supervisors, 
 4 Minn. 184 ; Bradley w Eichmond, 6 Vt. 
 121 ; Burnham v. Fond du Lac, 15 Wis. 
 193, 1862, where the inconvenience of the 
 opposite doctrine is forcibly pointed out 
 by Paine, J. ; Drake on Attach., sec. 516, 
 10; Hadley v. Peabody, 13 Gray, 200; 
 Brown v. Gates, 15 W. Va. 181. Approv- 
 ing text. That the salary of an officer 
 of a municipal corporation cannot be gar- 
 nished, see School District, etc. ». Gage, 
 39 Mich. 328; Hebel v. Amazon Ins. Co., 
 33 Mich. 407 ; Wallace w. Lawyer, 54 Ind. 
 501 ; Merwin v. Chicago, 45 111. 133 ; Chi- 
 cago V. Halsey, 25 111. 695; Thayer v. 
 Tyler, 5 Allen, 95 ; Colby u. Coates, 6 
 Cush. 559 ; Clark ». Mobile, 36 Ala. 621 
 (salary of school teacher) ; Hightower o. 
 Staton, 54 Ga. 108 ; McLellan v. Young, 
 54 Ga. 399 ; s. c. 20 Am. Bep. 276; Had- 
 ley ». Peabody, 13 Gray, 200. 
 
 In Missouri, also, it is held upon gen- 
 eral principles that municipal corpora- 
 tions are not subject to garnishment on 
 account of salary due to their officers. 
 Hawthorne v. St. Louis, 11 Mo. 59, 1847 ; 
 B. p. Fortune ». St. Louis, 23 Mo. 239, 
 1856, where the decision is placed upon 
 the broad ground that such corporations 
 are not liable to be garnished, and not on 
 the ground that an officer's salary is exempt 
 from such process. See also Neuer v. 
 Fallon, 18 Mo. 277. Since the first edi- 
 tion of this work the Supreme Court of 
 Missouri has modified in an important 
 respect the broad statement of the doc- 
 trine held in the former cases. See Pen- 
 dleton V. Perkins and the City of St. Louis, 
 
 49 Mo. 565, 1872. It was there held, after 
 great consideration, that a city corpora- 
 tion in that state is subject to garnish- 
 ment where the main debtor has absconded 
 so that judgment cannot be obtained 
 against him, and he has no property in 
 the state subject to attachment, but has 
 money in the city treasury belonging or 
 due to him, and that it may in such case 
 be reached by bill in equity in the first 
 instance without a previous judgment at 
 law, and without showing fraud or other 
 ground of equitable jurisdiction. It was 
 so decided, notwithstanding the garnish- 
 ment act in terms exempts municipal 
 corporations from its operation. The 
 opinion of Bliss, C. J., is very full and 
 elaborate. 
 
 In Tennessee, a municipal corporation 
 is not subject to garnishment at the suit 
 of a creditor of one of its employes ; citing 
 Bank v. Dibrell, 3 Sneed, 379 ; Burnham 
 V. Fond du Lac, 15 Wis. 193 ; Chicago v. 
 Hasley, 26 III. 696; Baltimore v. Root, 
 8 Md. 102; Hawthorne v. St. Louis, 11 
 Mo. 59 ; Memphis v. Laski, 9 Heisk. 611, 
 1877; s. c. 21 Am. Rep. 327. So in 
 Georgia, McClellan v. Young, 54 ; Ga. 
 899 ; s. c. 20 Am. Rep. 276. So in In- 
 diana, Wallace v. Lawyer, 54 Ind. 501 ; 
 8. c. 23 Am. Rep. 661. In Kentucky a city 
 may be garnished in respect of salary 
 due to officers. Rodman v. Musselman, 
 12 Bush, 354, 1876 ; s. c. 23 Am. Rep. 
 724. 
 
 In Connecticut, public officers having 
 money in their hands, to which an indi- 
 vidual is entitled, are not subject to gar- 
 nishment at the suit of the creditors of 
 such individual. Stillman i>. Isham, 11 
 Conn. 123, 1835, and cases cited; Ward 
 V. County of Hartford, 12 76. 404, 408. 
 And in that state a county not having 
 power to contract a debt for which an 
 action will lie against it, is not subject to 
 garnishment in such a case. Ward v 
 
§ 101.] 
 
 MUNICIPAL CHARTERS. 
 
 131 
 
 County of Hartford, 12 Conn. 404. But 
 under a statute enabling towns and cities 
 to contract debts, and which provides 
 that debts due from "any person" to a 
 debtor may be attached, these corpora- 
 tions may be factorized or garnished. 
 Bray o. Wallingford, 20 Conn. 416, 1850. 
 In New Jersey, a municipal corporation 
 may be garnished. Davis v. Graves, 9 
 Vroom (38 N. J. L.), 104; see Jersey 
 City ». Horton, 9 Vroom (38 N. J. L.), 88. 
 
 In Smoot V. Hart, 83 Ala. 69, 1868, it 
 is held that the marshal uf a city may be 
 garnished for city funds in his hands; 
 whether the treasurer could be garnished 
 not decided. Mayor v. Rowland, 26 Ala. 
 498, holds that a municipal corporation 
 cannot be garnished as respects accruing 
 salaries to its officers. See also Clark 
 V. School Commrs., 36 Ala. 621. But by 
 act of the legislature, 1866, process of gar- 
 nishment lies against a municipal corpo- 
 ration to subject the wages or salary of a 
 policeman to the satisfaction of a judg- 
 ment obtained against him. City Coun- 
 cil V. Van Dorn, 41 Ala. 505, overruling 
 Mobile V. Bowland, and Clark v. School 
 Commrs., 86 Ala. 621. In Massachusetts, 
 a county is not chargeable as a garnishee 
 for jurors' fees. Williams v. Boardman, 
 9 Allen, 570. In Maryland, notwithstand- 
 ing a general statute of the state author- 
 ized the garnishment of any " person or 
 persons whatever, corporate or sole," it 
 was held that municipalities were not in- 
 cluded, and that upon general grounds of 
 public policy and convenience, the city 
 could not be garnished in respect of 
 money due from the salaries of its officers, 
 although the officer whose salary was 
 attached could have sued the city there- 
 for. Baltimore v. Root, 8 Md. 95, 1855. 
 The city, in this case, was garnished in 
 respect of money due from it to a police 
 officer. 
 
 But in New Hampshire, under a statute 
 making " any corporation possessed of any 
 money " of the debtor subject to garnish- 
 ment, a town was held to be included. 
 Whidden B.Drake, 5 N. H. 13. See Brown 
 V. Heath, 46 N. H. 168. In louia, it was 
 
 held that the words " debtor or person 
 holding property," in the attachment act, 
 extended to municipal corporations, and 
 that they were subject to garnishment 
 with respect to ordinary debts which they 
 owed the main debtor. Wales v. Musca- 
 tine, 4 Iowa, 802, 1856. The decision of 
 the court asserts the liability to garnish- 
 ment on general principles; but subse- 
 quently the legislature enacted that " a 
 municipal or political corporation should 
 not be garnished." Rev. 1860, sec. 8196. 
 Under the legislation of Iowa, the exemp- 
 tion from garnishment is complete and 
 universal. Jenks v. Township, 46 Iowa, 
 664. Requisites of notice to corporation, 
 Claflin V. Iowa City, 12 Iowa, 284 ; Wil- 
 liams ti. Eenney, 98 Mass. 142. In Ohio, 
 under a statute which provides that " any 
 claims or choses in action, due or to be- 
 come due" to the judgment debtor, or 
 " money which he may have in the hands 
 of any person, body politic or corporate," 
 are subject to execution, salaries of offi- 
 cers of incorporated cities, due and unpaid, 
 may be subjected by the judgment cred- 
 itors of such officers to the payment of 
 their judgments, and municipal corpora- 
 tions may be garnished with respect to 
 such salaries. The court admits the con- 
 flict in the decisions of other states upon 
 similar statutes, but regards the construc- 
 tion above given as being in accordance 
 with public policy and the meaning of 
 the statute. Newark v. Funk, 15 Ohio 
 St. 462, 1864. In Illinois, municipal cor- 
 porations are not subject to garnishment 
 in any case, no matter what may be the 
 character of the indebtedness. This posi- 
 tion is maintained by Lawrence, J., with 
 great force. Merwin v. Chicago, 45 111. 
 138 ; Bums ». Harper (money in hands of 
 school directors), 59 Bl. 21, 1871 ; MiUi- 
 gon ». Fisk, 48 111. 112. So in Iowa. Jenks 
 V. Township, supra. Waiver. Clapp v. 
 Walker, 25 Iowa, 315. In Minnesota, a, 
 judgment debtor may be ordered to as- 
 sign to his creditor a debt due him from 
 a municipal corporation. Knight v. Nash, 
 22 Minn. 452, 1876. 
 
182 MUNICIPAL COEPOEATIONS. [CH. VI. 
 
 CHAPTER VI. 
 
 MUNICIPAL CHARTERS —CONTINUED. 
 
 * . 
 
 Special Powers and Special Limitations. 
 
 § 102. (66) While municipal corporations are instituted for 
 the same general purposes, heretofore explain ed,^ and while there 
 is a striking resemblance in the authority with which they are 
 clothed, yet, except when organized under general acts, the 
 powers given to them are various, both in character and extent.^ 
 True policy, indeed, requires, as before suggested, that the pow- 
 ers of these bodies should, in general, be confined to subjects 
 connected with civil government and local administration ; but 
 legislatures are usually liberal in grants of this character, and there 
 is no limit to the faculties and capacities with which municipal 
 creations may be endowed, unless that limit is contained in the 
 state constitution.* The leading powers ordinarily possessed by 
 municipalities, such as those relating to contracts, eminent domain, 
 streets, taxation, ordinances, corporate oflBcers, actions, and the 
 like, will be hereafter separately treated. But it will be conven- 
 ient to notice in this place some special powers usually or often 
 conferred upon municipalities, and some special limitations upon 
 ordinary municipal powers, and the construction which such pro- 
 visions have judicially received. 
 
 We shall here consider the following subjects as they relate to 
 municipal corporations : — 
 
 1. Wharves. 
 
 2. Ferries. 
 
 3. Borrowing Money. 
 
 4. Limitations on the Power to create Debts. 
 
 5. Rewards for Offenders. 
 
 6. Public Buildings. 
 
 7. Police Powers and Regulations. 
 
 1 AtOe, chs. i., ii. ; tupra, sees. 99, 100. ' Aurora v. West, 9 Ind. 74, 1857 ; 
 
 2 Ante, sec. 39. anu, ch. iv. 
 
§ 102;] MUNICIPAL CHAKTERS. 133l 
 
 8. Prevention of Fires. 
 
 9. Quarantine and Health. 
 
 10. Indemnifying Officers. 
 
 11. Furnishing Entertainments. 
 
 12. Impounding Animals. 
 
 13. Party Walls. 
 
 14. Public Defence. 
 
 15. Aid to Railway Companies. 
 
 Wharves. 
 
 § 103. (67) Among the special powers conferred by the legis- 
 lature upon municipal corporations bordering upon the high seas 
 or navigable waters is the authority to erect wharves, and charge 
 wharfage as a compensation for keeeping the same and their 
 approaches in a proper and safe condition for the landing, load- 
 ing, and unloading of vessels.^ The authority of the state over 
 navigable waters and the shores is, of course, subject to the 
 constitution of the United States, and the laws made in pursu- 
 ance thereof regulating commerce, and the admiralty jurisdiction 
 of the federal courts.^ But although the power to erect wharves 
 
 1 Commonwealth v. Alger, 7 Cush. 53, Car.) Law, 694, 1847 ; State v. City 
 82, 1861; Pollard's Lessee v. Hagan, 3 Council, 4 Bich. (South Car.) Law, 286; 
 How. (U. S.) 212; Municipality v. Pease, Commonwealth ». Alger, 7 Cush. 63,82, 
 2 La. An. 538, 1847 ; Worsley v. Munici- 1850 ; Worsley v. Municipality, above 
 pality, 9 Bob. (La.) 824; New Orleans 0. cited; JeffersonTille v. Ferry Boat, 35 
 United States, 10 Pet. 662, 737 ; The Ind. 19, 1870 ; Harbor-master v. Souther- 
 Wharf Case, 3 Bland Ch. (Md.) 383; lU. land, 47 Ala. 611, 1872. But state en- 
 etc. Co. V. St. Louis, 2 Dillon C. C. B. actments, which amount to a regulation 
 70, 1872 ; Packet Co. v. Keokuk, 95 U. of commerce or impose a duty on tonnage 
 S. 80, 1877 : Barney v. Keokuk, 94 U. S. are, of course, void. Cannon v. New 
 3?4, 1876; Weber v. Harbor Commrs., Orleans, 20 Wall. 577, 1874; Packet Co. 
 18 Wall. 57, 1873 ; Packet Co. ». St. Louis, v. St. Paul, 3 Dillon, 454 ; Peete v. Morgan, 
 100 U.S. 423, 1879; Vicksburg w. Tobin, 19 Wall. 581, 1873; Steamship Co. v. 
 100 U. S. 430, 1879. Port Wardens, 6 Wall. 31, 1867. Wharf- 
 
 ^ State and authorized municipal pilot age charges may however be graduated 
 
 and harbor regulations, when not in conflict by the size of the vessel to be ascertained 
 
 with the federal constitution or federal by its tonnage ; this is not a tax in the 
 
 legislation, are valid. Steamship Co. u. nature of a tonnage duty. N. W, Packet 
 
 Joliflfe, 2 Wall. 450; Cooley ». Board of Co. v. St. Louis, 4 Dillon, 10, 1876; 
 
 Wardens, 12 How. (U. S.) 296; PoUard's Keokuk o. Packet Co., 45 Iowa, 196, 1876; 
 
 Lessee v. Hagan, 3 lb. 212; Cisco v. s. c. affirmed, 95 U. S. 80, 1877; EUer- 
 
 Roberts, 36 N. Y. 292; Port Wardens v. man v. McMains, 30 La. An. 190. See, 
 
 Ship, etc., 14 La. An. 289, 1859; Same also. United States v. Duluth, 1 Dillon 
 
 t>. Pratt, 10 Bob. (La.) 459 ; Chapman v. C. C. 469; Packet Co. v. Atlee, 2 Dillon 
 
 Miller (pilotage fee), 2 Speers (South 479, 1873 ; a. c. 21 Wall. 389. The 
 
 Car.) Law, 769; Alexander v. Railroad collection of wharfage dues does not 
 
 Co. (duty on tonnage), 3 Strob. (South violate any provision of the U. S. con- 
 
134 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VI. 
 
 and charge wharfage is not strictly one relating to municipalities, 
 it is, nevertheless, competent for the legislature to make them, 
 in such measure as it deems expedient, the repository of it.^ 
 
 It may authorize a municipal corporation to establish a public 
 wharf upon private property on making compensation to the 
 owner of the land ; and the power, wheu conferred upon the 
 municipality, cannot be arrested by an offer on the part of the 
 land-owner himself to erect a wharf.'* 
 
 § 104. (68) Wharves, piers, quays, and landing places, may 
 be either public or private. They may be, in their nature, public, 
 although the property be owned by an individual. If private, 
 the public have no right to use the erection without the owner's 
 consent, express or implied ; if public, they may be used by per- 
 sons generally upon the payment of a reasonable compensation. 
 Whether they are public or private depends, in case of dispute, 
 upon circumstances, such as the purpose for which they were 
 built, the uses to which they have been applied, the place where 
 situated, and the character of the structure.* 
 
 etitution. Where a municipal corporation 
 under express legislative authority is 
 clothed with the exclusive right to collect 
 wharfage rates from all vessels that 
 make use of its wharves it is a vested 
 right that cannot be impaired by the 
 legislature. Ellerman v. McMains, 80 
 La. An. 1 P. 190. 
 
 I Fuller V. Edings, 11 Rich. (South 
 Car.) Law, 239, 1858; Waddington ». St. 
 Louis, 14 Mo. 190, 1851; Baltimore v. 
 White, 2 Gill (Md.), 444, 1845; Wilson 
 V. Inloes, 11 Gill & J. (Md.) 351; Weber 
 i>. Harbor Commrs., 18 Wall. 57, 1873. 
 The owner of a private wharf, whose 
 land is compulsorily taken for a public 
 wharf, is not necessarily entitled to be 
 compensated for loss of income from his 
 private wharf, resulting in the establish- 
 ment of the public wharf near to the 
 private one. Fuller v. Edings, supra. 
 The grant of an exclusive right to keep 
 a wharf, in order to secure its erection, 
 does not violate the provision of a state 
 constitution, declaring "that no man 
 or set of men are entitled to exclusive, 
 separate public emoluments or privileges 
 from the community, but in considera- 
 tion of public services." Such an im- 
 
 provement is beneficial to the public, and, 
 in order to secure it, the exclusive profits 
 for a given period may be granted to the 
 Contractor. Martin v. O'Brien, 34 Miss. 
 (5 George) 21, 1857 ; see, also, Geiger v. 
 Filor, 8 Flor. 325, 1859. 
 
 2 Waddington v. St. Louis, above 
 cited ; Iron Railroad Co. v. Ironton, 19 
 Oliio St. 299, 1869; Page v. Baltimore, 
 34 Md. 558, 1871 ; State v. Jersey City, 
 34 N. J. L. 890. Municipalities may under 
 legislative grant build wharves and 
 levees on streets bordering on the Mis- 
 sissippi River, and make or authorize the 
 making of other improvements thereon ; 
 such as a steamboat depot building, for the 
 storage of freight and the convenience of 
 travellers. Barney v. Keokuk, 94 U. S. 
 324, 1876; o. c. below, 4 Dillon, 593; 
 HI. etc. Co. V. St. Louis, 2 Dillon, 70. 
 
 ' Dutton V. Strong, 1 Black (U. S.), 
 23, 1861. The owner of a private pier 
 may, it was held in this case, cut loose a 
 vessel attached to it without a license if 
 the pier be thereby endangered, no matter 
 how great the stress of the weather or 
 the peril to which the vessel may be 
 thereby subjected. 
 
 Wharf: What Constitutes. Upon a 
 
§ 106.] MUNICIPAL CHARTEKS. 135 
 
 § 105. (69) The keeping of a wharf or dock, erected and 
 opened to the public, like the keeping of an inn, confers a general 
 license to boats and vessels to occupy it for lawful purposes, — a 
 license which can be terminated only by notice and request to 
 remove the vessel.^ When thus established, the owner at com- 
 mon law is, as respects the public, bound to keep it in good re- 
 pair. In view of these obligations on the part of the owner of 
 the wharf, the common law gave him the right to distrain for his 
 wharfage or toU.^ 
 
 § 106. (70) By the common law, the riparian owner has the 
 right to establish a wharf on his own soil, this being a lawful 
 use of the land.* The right is judicially recognized in this country, 
 and riparian proprietors on ocean, lake, or navigable river have, 
 in virtue of their proprietorship, and without special legislative 
 authority, the right to erect wharves, quays, piers, and landing 
 places on the shore, if these conform to the regulations of the 
 state for the protection of the public, and do not become a 
 nuisance by obstructing the paramount right of navigation. This 
 right has been exercised by the owners of the adjacent land from 
 the first settlement of the country. The right terminates at the 
 point of navigability, unless special authority be conferred, be- 
 
 non-tidal stream, any construction of titn- 21. Wharfage is not properly a tax, like 
 
 ber or stone upon the bank, of such that levied to support government, but 
 
 shape that a vessel may lie alongside of rather compensation paid by owners of 
 
 it, with its broadside to the shore, con- vessels for accommodation for tlieir boats 
 
 stitutes a wharf ; and a paved street ex- and merchandise. Swartz n. Flathoats, 
 
 tending to the water's edge, and used by 14 La. An. 243, 1859 ; s. p. Keokuk v. 
 
 vessels as a place for receiving and dis- Keokuk Packet Co., 46 Iowa, 196, 1876. 
 
 charging freight and passengers, may be If a city is entitled to the wharfage from 
 
 so designated. Keokuk v. Keokuk, etc. public wharves, and the owner of a lot 
 
 Packet Co., 46 Iowa, 196, 1876. adjacent to such wharf receives wharf- 
 
 1 Heeney v. Heeney, 2 Denio, 625 ; age, lie is liable to the city therefor. 
 
 NicoU u. Gardner, 13 Wend. 289, 1835 ; Baltimore v. White (assumpsit), 2 Gill 
 
 Lansing n. Smith, 4 Wend. 9 ; Button v. (Md.), 444. The right, as between pri- 
 
 Strong, I Black, 23, distinguished from vate persons and a city corporation, to 
 
 Heeney v. Heeney, supra. the moneys collected for wharfage may 
 
 " Hale de Port. Maris, 77 ; Bradley on be tried in an action for money had and 
 
 Distress, 133;' NicoU v. Gardner, 13 received. Murphy e. City Council, 11 
 
 Wend. 289. The right of distress is reg- Ala. 586, 1847. See Grant v. Davenport, 
 
 ulated by statute in the city of New 18 Iowa, 179. 
 
 York, and it was there held, that where ' NicoU v. Gardner, 13 Wend. 289, 
 
 wharfage accrued in the seventh ward, 1835, per Nelson, 3. ; Lansing v. Smith, 
 
 the owner of the wharf might distrain 4 Wend. 9, a£Srming s. c. 8 Cow. 146 ; 
 
 therefor in the eleventh ward. 18 Wend. Heeney ». Heeney, 2 Denio, 625. 
 289. See Lansing v. Smith, 4 Wend. 9, 
 
136 
 
 MUNICIPAL CORPORATIONS. 
 
 [dH. yi. 
 
 cause at this poirit the necessity for such erections ordinarily 
 ceases. Such structures are presumptively lawful where they 
 are confined to the shore, and no positive law is violated in their 
 erection.^ 
 
 § 107. (71) The rights of riparian proprietors, in respect to the 
 erection of wharves^ are subject to such reasonable limitations and 
 restraints as the legislature may think it necessary and expedient 
 to impose. Therefore it is competeitt for the legislature to pass 
 acts establishing harbor and dock lines, and to take away the 
 right of the proprietors to build wharves on their own land be- 
 yond the lines, even when such wharves would be no actual 
 injury to navigation.''' 
 
 ^ Heeney v. Heeney, 2 Denio, 626; 
 Thornton v. Grant, 10 Bho. Is. 477, 1873; 
 g. c. 14 Am. Rep. 701 ; Sherlock v. Bain- 
 bridge, 41 Ind. 3d, 1872 ; s. c. 13 Am. 
 Bep. 302 ; Wisconsin, etc. Co. v. Lyons, 
 ^0 Wis. 61 ; Duttdn i: Strong (action of 
 trtespass by owner of vessel against ovFner 
 of private pier for cutting the vessel 
 loose), 1 Black (U. S.), 23, 1861, distin- 
 guished from Heeney v. Heeney, above 
 cited. Same principle reaffirmed, Bail- 
 road Co. V. Schurmier, 7 Wall. 272; Yates 
 V. Milwaukee, 10 Wall. 497; approved, 
 Weber ». Harbor Cbmmrs., 18 Wall. 
 57, 1873; State </. Jersey City, 1 
 l)uteh. (N. J.) 525, 530; Wetmore v. 
 Brooklyn Gas Co., 42 N. Y. 384 ; Galves- 
 ton V. Menard, 23 Tex. 349 ; Grant v. 
 Davenport, 18 Iowa, 179, per Wrighi, J. 
 But in California, see JDana v. JaCkson; 
 etc. Co., 81 Cal. Il8. As to right to erect 
 wharf by other than riparian o*ner on 
 a tidal river, below high-water mark, 
 quaere, see Hagan «. Campbell, 8 Port. 
 (Ala.) 9. In this casg it is said : "It is 
 clear that no part of such erections can 
 be rested upon the lands of the riparian 
 proprietor, nor can he be excluded from 
 the use of the water, or denied other 
 riparian rights." See People ». David- 
 son, 30 Cal, 379 ; Walker t>. State Harbor 
 Commrs., 17 Wall. 648, 1873; Packet 
 Co. V. Atlee, 2 Dillon 479, 1873; s. c. 
 21 Wall. 889. 
 
 2 Commonwealth i>. Alger, 7 Cush. 63, 
 1851. This subject is here very fully 
 and learnedly discussed and examined. 
 
 See also. Hart v. Mayor, 9 Wend. 67 1^ 
 valuable case, affirming 3 Paige, 218 ; 
 Wetmore v. Brooklyn Gas Co., 42 N. Y. 
 384 ; People v. Vanderbilt, 26 N. Y. 287 j 
 Same v. Same, 28 N. Y. 396 ; Pollard's 
 Lessee v. Hagan, 3 How. (U. S.) 212; 
 Hagan v. Campbell, 8 Port. (Ala.) 9; 
 Mobile V. Eslava, 9 Port. (Ala.) 677, 
 1839; Eailroad Co. v. Winthrop, 5 La. 
 An. 36. In Yates ». Milwaukee, 10 Wall. 
 497, Mr. Justice Miller, on behalf of the 
 court, stieaking of an existing wharf, 
 denied that the city of Milwaukee, under 
 the power to establish dock and wharf 
 lines, could create an artificial and imagi- 
 nary dock line, hundreds of feet away 
 from the navigable part of the river, and 
 without making the river navigable up 
 to that line, deprive the riparian owners 
 of the right to avail themselves of the 
 advantages of the navigable channel by 
 building wharves and docks to it for that 
 purpose, and said that if the city deemed 
 the removal of the wharf in question 
 necessary in the prosecution of any gen- 
 eral scheme of widening the channel or 
 improving the navigation of the river, it 
 must first make the owner compensation 
 for his property thus taken for the public 
 use. Nature and extent of riparian rights 
 fully considered in Lyon v. Fishmongers^ 
 Co.', L. B. 1 H. L. Cas. 662, 1876 ; Dele- 
 plaine v. Railway Co., 42 Wis. 214, 1877 ; 
 Barney i-. Keokuk, 94 U. S. 324, 1876. 
 
 Municipal control, under legislative 
 grant, oVer right of riparian ownel" to 
 wharf out. Baltimore «. White, 2 GSU 
 
§ 109.] 
 
 MUNICIPAL CHARTERS. 
 
 137 
 
 § 108. (72) While the riparian proprietor has the right to 
 erect wharves, which are private in their nature, bub which may 
 be used by the public by the consent of the owner, express or 
 implied, the right to erect pullie wharves and to demand toUg or 
 fixed rates of wharfage is, according to the better view, a fran- 
 chise, which must have its origin in a legislative grant.^ 
 
 § 109. (73) If a mwnieipality is itself a riparian proprietor, this 
 will probably give to it, in the absence of any restrictive pro- 
 vision in its orgEinic act, the implied authority to erect a wharf 
 thereon, and it would have the incidental right, the same as a 
 private owner, to charge compensation for its use.^ Its rights 
 
 (Md.), 444, 1845; Wilson v. Inloes, 11 
 Gill & J. (Md.) 361 ; Barney v. Keokuk, 
 94 U. S. 324, 1876; s. o. 4 Dillon, 593; 
 Weber v. Harbor Comrars., 18 Wall. 57, 
 1878. Wbefe, under acts of tlie legisla- 
 ture, a city had the power to refuse 
 assent to riparian owners to erect 
 wharves, or to allow it upon such terms 
 as they deemed beneficial to navigation 
 and the use of the port of that city, it 
 was held that the city might make the 
 grant of the right to erect a wharf upon 
 the condition that its exterior margin 
 should constitute a public wharf. Balti- 
 more V. White, supra. 
 
 1 People 0. Wharf Co., 31 Cal. 34 ; 
 The Wharf Case, 3 Bland Ch. (Md.) 
 383; Wiswall «. Hall, 3 Paige Ch. 313; 
 Houck on Rivers, sec. 282 ; Thompson v. 
 Mayor, 11 N. Y. 115. See, as to naviga- 
 tor's right to moor and land, Bainbridge 
 ». Sherlock, 29 Ind. 364; modified, Sher- 
 lock V. Bainbridge, 41 Ind. 35, 1872; 
 Talbot V. Grace, 30 Ind. 389 ; Jefferson- 
 ville V. Ferry Co., 27 Ind. 100 ; s. c. 35 
 Ind. 19, IS70. State courts have jurisdic- 
 tion of suits for wharfage against domes- 
 tic vessels. lb. 35 Ind. 19, 23; Tlie 
 Phebe, 1 Ware Eep. 360; Russell v. The 
 Swift, Newb. B. 553; Lewis, in re, 2 
 Gallis. 483. 
 
 2 Murphy v. City Council, 11 Ala. 
 586, 1847. The court say : " The title to 
 the wharf is in the city, and, such being 
 the fact, it had the same right as any 
 other proprietor to collect wharfage from 
 those landing goods there. This right, 
 resulting from its proprietary interest, is 
 not a franchise, but a right of property." 
 lb. per Ormond, J., p. 558. The city of 
 
 Boston has, under the laws of Massachu- 
 setts, the same rights as other littoral pro- 
 prietors, and was held not to dedicate a 
 dock, which it owned, to the public, by 
 merely abstaining from any control over 
 it. The court observe : " The people of 
 Boston, who owned the land as their com- 
 mon and private property, acted through 
 a corporation (the city), whose corporate 
 grants and licenses are matters of record. 
 Their own use of their own property for 
 their own benefit cannot be called a dedi- 
 cation of it to any other public of wider ex- 
 tent. Whether it was called ' town 
 dock' or 'public dock' (which were 
 used as synonymous terms), it would 
 furnish no ground to presume that they 
 had parted with their right to govern and 
 use it in the manner most beneficial to 
 the people or public of the town or city." 
 Boston 0. Lecraw, 17 How. (U. S.) 426, 
 1854; Commonwealth v. Boxbury, 8 
 Gray, 514, 519, and note. Bonajide pur- 
 chaser of a wharf in the city of Balti- 
 more, erected under contract with the 
 city, and in which the city had certain 
 rights, held affected with notice of those 
 rights. Baltimore v. White, 2 Gill (Md.), 
 444. A city, authorized by its charter to 
 build wharves on its own property, and 
 to obtain by contract or purchase the 
 title or the control of other wharves in 
 the city, and to raise a revenue there- 
 from by establishing and collecting a 
 rate of dockage and wharfage, had no 
 power to take a lease of a wharf contain- 
 ing a provision that it should be kept as 
 a, free wharf. Mobile v. Mood, 53 Ala. 
 561. 
 
138 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VL 
 
 would be the same as those of any similar proprietor, and no 
 greater, unless enlarged by legislative grant. 
 
 § 110. (74) All the powers of a mwnidpality in respect to 
 wharves and docks must, like all its other jjowers, be derived 
 from the legislature.^ In regard to private wharves lawfully 
 erected, the municipal authorities have only such powers of local 
 regulation and government as their charters or constituent acts, 
 in general or special terms, confer upon them.^ Their own, right 
 to erect wharves may be express or implied. The power, even 
 
 1 Snyder v. Rockport, 6 Ind. (Porter) 
 237, 1855; Railroad Co. w. Winthrop, 
 5. La. An. 36; State v. Jersey City, 34 
 N. J. L. 31. Under the charter of a 
 city providing that the city "shaU have 
 control of the landings of the Mississippi 
 River, and the right to build wharves and reg- 
 ulate the landing, wharfage, and docking of 
 boats," it may establish and construct 
 wharves and collect a reasonable compen- 
 sation for their use. Muscatine v. Keo- 
 kuk, etc. Packet Co., 46 Iowa, 185, 1876 ; 
 post, sec. 112. While a city may be en- 
 joined, at the instance of a tax-payer, 
 from raising taxes or appropriating money 
 for the unauthorized construction of a 
 wharf, it will not be restrained from ex- 
 ercising a clear power to grade streets, 
 merely because, by such grading, a wharf 
 at the river end of the street will incident- 
 ally result. Snyder v. Rockport, above 
 cited. As to right of municipal corpora- 
 tion to erect, or allow others to erect, 
 wharf at terminus of a street, see Doe v. 
 Jones, 11 Ala. 63. In Galveston v. Men- 
 ard, 23 Tex. 349, 1859, the right of the 
 city, under a grant from the legislature, to 
 build and control wharves in front of the 
 streets is affirmed. In Newport v. Taylor, 
 16 B. Mon. 699, 1855, it was decided that 
 the city might build wharves on properly 
 dedicated as a "common," along a naviga- 
 ble river.' See also, Louisville v. Bank, 3 
 B. Mon. 144; Kennedy v. Covington, 8 
 Dana, 61. The city of Dubuque, under 
 its charter, was held to have power to 
 prohibit all persons, including riparian 
 owners, from using any place but the pub- 
 lic wharf without paying wharfage. Du- 
 buque 1-. Stout, 32 Iowa, 80; s. c. 7 
 Am. Rep. 171 ; post, sec. 1 12, note. As 
 to the use, under municipal authority, of 
 
 streets bordering on a navigable river for 
 structures for the accommodation of 
 passengers and the storage of freights, 
 etc., Barney v. Keokuk, 94 U. S. 324, 
 1876 ; 8. 0. below, 4 Dillon, 593; III., etc. 
 Co. V. St. Louis, 2 Dillon, 70. 
 
 * Grant v. Davenport, 18 Iowa, 179, 
 1865. Where the charter of a city au- 
 thorizes it " to regulate the erection and 
 repair of private wharves and the rates of 
 wharfage thereat, the city," says Wright, 
 C. J., " may regulate, but not destroy ; may 
 exercise control, as over other private 
 property within its limits, but not to the 
 extent of appropriating the use and en- 
 joyment thereof to the public without 
 compensation." lb. Liability of city corpo- 
 ration for an injury to a private wliarf, 
 caused by diverting streams of water to a 
 point near the wharf, thereby causing a 
 great deposit of sand and earth, which 
 lessened the depth of water at the wharf 
 and impaired' its value. Barron v. Balti- 
 more, 2 Am. Jurist, 208, cited and ap- 
 proved in Stetson .;. Faxon, 19 Pick. 147, 
 1858 ; and see, also, Thayer v. Boston, 19 
 Pick. 510. If the deposits from sewers con- 
 structed by the city cause a peculiar in- 
 jury to the wharf owner, the city is liable 
 to the latter in damages. Franklin Wharf 
 Co. V. Portland, 67 Me. 46, 1877 ; s. c. 24 
 Am. Rep. 1, and Mr. Thompson's note ; 
 Haskell v. New Bedford, 108 Mass. 208 ; 
 Brayton e. Fall River, 113 Mass. 218; 
 8. c. 18 Am. Rep. 470 ; post, ch. xxiii. 
 Power to erect public wharves and to 
 condemn private property, therefore, in- 
 cludes the power to extend a wharf already 
 established, and compulsorily to appro- 
 priate the necessary land for that purpose 
 on making compensation to the owner. 
 Hannibal v. Winchell, 54 Mo. 172, 1873. 
 
§ 111.] MUNICIPAL CHAKTERS. 139 
 
 when conferred in terms, is, like other powers, to be construed 
 somewhat strictly when it affects private rights, but not so strictly 
 as to defeat the purpose of the grant.^ Thus, although the cor- 
 porate boundaries may by the charter be extended to low-water 
 mark, and the corporation has express power " to regulate the 
 erection and occupation of all wharves or levees within the cor- 
 porate limits," this does not give the corporation as against the 
 riparian proprietor (whose right was construed to extend to low- 
 water mark), the power to control the river bank so as to require 
 such proprietor or his lessee to take out a license for his wharf- 
 boat, fastened to the shore of his own land, and used for business 
 purposes.^ 
 
 § 111. (75) So where a riparian proprietor had constructed a 
 wharf which extended to, but did not encroach upon, the naviga 
 ble part of the river, and which was not shown to be a nuisance 
 in fact, it was held by the Supreme Court of the United States 
 that the city within which the wharf was situated could not, 
 under the charter power to establish dock and wharf lines and 
 restrain and prevent encroachments upon the river and obstruc- 
 tions thereto, pass an ordinance declaring the wharf to be an 
 obstruction to navigation, and a nuisance, and ordering it to be 
 summarily abated.^ 
 
 1 Ab to the extent of municipal power 519, and note by Mr. (now Chief Justice) 
 
 over public and private wharves and the Gray; Trowbridge u. Mayor (right of 
 
 respective rights of the riparian owner Albany under JJongan cliarter), 7 Hill 
 
 and municipal authorities, concerning (N. Y.), 429; s. o. 5 76.71 ; Hart w. Mayor, 
 
 wharves and wharfage : Grant v. Daven- 9 Wend. 571 ; Lansing v. Smith, 4 Wend, 
 
 port, 18 Iowa, 179, 1865; Cincinnati v. 4; Thompson t>. Mayor, 11 N. Y. 115; 
 
 Walls, 1 Ohio St. 222; Muscatine v. Her-. Marshall ». Guion, 76. 461; Corporation ' 
 
 shey, 18 Iowa, 89 ; Galveston v. Menard, v. Scott, 1 Caines, 543. Principles of 
 
 23 Tex. 348 ; Baltimore v. White, 2 Gill construction, ante, sec. 89, and notes ; 
 
 (Md.), 444, 1845; Furman v. New York, 6 post, 113, note. 
 
 Sandf. S. C. 16 ; affirmed, 10 N. Y. 667 ; The powers of a municipality in re- 
 
 Dugan V. Baltimore, 5 Gill & Johns. (Md.) speot to wharfage are subject to the un- 
 
 357, 1833 ; reversing s. c. 8 Bland Ch. limited control of the legislature, except 
 
 361 ; Wilson v. Inloes, 11 Gill & Johns, so far as the rights of creditor may be 
 
 (Md.) 858; Shepherd v. Municipality, 6 impaired. St. Louis v. Shields, 52 Mo. 
 
 Bob. (La.) 349; Columbus v. Grey, 2 361,1873; ante, sec. 69. 
 
 Bush (Ky.), 476; Kennedy v. Covington, ^ McLaughlin v. Stevens, 18 Ohio, 94, 
 
 17 B. Mon. 567 ; Memphis, etc. Packet 1849 ; Blanchard v. Porter (extent of ri- 
 
 Co. b. Grey, 9 Bush (Ky.), 187, 1872; parian right), 11 Ohio, 138, 144; Musca- 
 
 Commrs. v. Neil, 8 Yeates (Pa.), 54; tine ». Hershey, 18 Iowa, 39; Martin u. 
 
 Richardson v. Boston, 24 How. (U. S.) Evansville, 32 Ind. 85, 1869. 
 
 188; s. c. 19 lb. 263; 17 76.426; New- » Yates v. MUwaukee, 10 Wall. 497, 
 
 port V. Taylor, 16 B. Mon. 699, 1855; 1870. 
 Commonwealth v. Eoxbury, 9 Gray, 514, 
 
140 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. VI. 
 
 § 112. (76) If the right to impose wharfage is given to a muni- 
 cipality, but not limited, the question of the amount which the 
 municipal authorities may exact is confided to their discretion, 
 and is one with which the courts cannot interfere,^ unless, per- 
 haps, in a case where the by-law imposing it is plainly unreason- 
 able. But the amount of tolls or wharfage may, of course, be 
 regulated by the legislature.* 
 
 § 113. (77) The interests of conlmerce imperatively require 
 that public wharves should be in a safe condition ; and if a muni- 
 cipal corporation is in possession of such a wharf and exercises 
 control over it, and receives tolls for its use, it owes a duty to 
 the public to keep it in proper and secure condition for use, and 
 it is liable, without statutory enactment to that effect, to an 
 action for any special injuries to boats and vessels caused by its 
 
 ' Municipality v. Fease, 2 La. An. 638, 
 1847 ; Muscatine ». Hershey, 18 Iowa, 
 39, 42, 1864, per Wright, 3. Tlie erection 
 of a wharf by a City was presumed to be 
 for the benefit of the public, and in the 
 absence of an ordinance fixing the wharf- 
 age dues or providing for the payment 
 of a compensation for the use of its 
 wharves, it was held that such compen- 
 sation could not be collected by the city. 
 Muscatine v. Keokuk, etc. Packet Co., 45 
 Iowa, 185, 1876. A city may prescribe by 
 ordinance the fees which shall be paid for 
 the use of the wharves within its limits, 
 and this power is impliedly subject only 
 to the limitation that such fees shall be 
 reasonable. Keokuk v. Keokuk Northern 
 Line Packet Co., 45 Iowa, 196, 1876. As 
 to right of a city to charge wharfage fees 
 when vessels or boats are moored at 
 places where no wharves , have been 
 founded, lb ; Dubuque v. Stout, 32 
 Iowa, 80. 
 
 Vduntary Payment. Where the own- 
 ers of boats have paid wharfage fees 
 under protest, which were demanded and 
 collected in the absence of authority to 
 make the demand, they cannot recover 
 them back in an action against the city. 
 Muscatine v. Keokuk, etc. Packet Co., 
 45 Iowa, 185, 1876. The mere danger 
 that an action at law will be commenced 
 to enforce payment does not make the 
 payment of a demand unjustly and 
 
 illegally made a compulsory payment. 
 lb. See cases on the subject of volun- 
 tary and compulsory payment, cited at 
 large, post, ch. 23. Packet Co. v. St. Louis, 
 4 Dillon, 10, 1876; ante, sees. 94, 95. 
 
 2 Baltimore v. White, 2 GiU (Md.), 
 444, 1845 ; Murphy v. City Council, 11 
 Ala. 586,1847. Authority to a city "to 
 erect, repair, and regulate wharves and the 
 rates of wharfage," authorizes it to collect 
 wharfage upon goods landed on the bank, 
 the space in front of the city being dedi- 
 cated to the public, although no artificial 
 wharf was erected. Sacramento v. Steam- 
 er, 4 Cal. 41. This subject is discussed 
 by Wright, J., in Muscatine v. HSrshey, 
 18 Iowa, 89, but the point is not decided 
 by the court. Dubuque v. Stout, 32 
 Iowa, 47, 80, 1871 ; S. c. 7 Am. Rep. 
 171. In Kentucky, however, it is held 
 that the owner of the land must build 
 wharves, or improve the shore, or make 
 some preparation for the reception or de- 
 livery of goods, or accommodation of 
 vessels, before he is entitled to collect 
 tolls or wharfage. Columbus v. Grey, 2 
 Bush (Ky.), 476. If he permits the mu- 
 nicipal authorities so to improve the 
 wharves, he will only be entitled to rea- 
 sonable Gompensation for the use of the 
 river bank. lb. The word " quay " de- 
 fined by McLean, J., in New Orleans v. 
 United States, 10 Pet. 661, 715. 
 
§114.] 
 
 MUNICIPA.^ CHAETERS. 
 
 141 
 
 failure to discharge this duty. In such a case it is not material 
 whether Has dty had adopted ordinances for the regulation of 
 the wharf, or, having such, neglected to enforce them, as in 
 either event the responsibility is the same.^ 
 
 Ferries. 
 
 § 114. (78) It is not unusual for the legislature to make to a 
 municipal corporation a more or less extensive grant respecting 
 ferries and ferry franchises. Such a grant is not, unless other- 
 wise expressed, a compact which cannot be impaired, but in the 
 nature of a public law, subject to be repealed or changed, as the 
 public interests may demand.''* If the legislature has conferred, 
 
 1 Pittsburgh v. Grier, 22 Pa. St. 54, 
 1853. " This case," says Perky, C. J., 
 in Eastman v. Meredith, 36 N. H. 284, 
 295, " is put distinctly upon the ground 
 that the public duty, which was the foun- 
 dation of the action, arose out of the 
 control which the city exercised over the 
 wharf, and the income received for the 
 use of it." That the right to collect 
 wharfage by the city imposes the duty to 
 keep in repair, and a correlative liability, 
 has been often determined. City not liable 
 for filling up slip from a sewer. Reed v. 
 Lynn, 126 Mass. 367 ; Shinkle v. Coving- 
 ton, 1 Bush (Ky.), 617, where there was a 
 failure to provide proper fastenings for 
 boats. People v. Albany, 11 Wend. 539, 
 543; Buckbee v. Brown, 21 Wend. 110; 
 Mersey Dock Trustees v. Gibbs, Law R. 
 1 H. L. 93. Lessee of city is under like 
 liability. Eadway v. Briggs, 37 N. Y. 
 256, 1867. In form, the action in such a 
 case against the city may be either case 
 or assumpsit. Pittsburgh v. Grier, 22 Pa. 
 St. 54, 1853. But it is no defence to an 
 action by a city for whai^age that the 
 wharf is not well built and needed further 
 improvement or repairs. Prescott v. Du- 
 quesne, 48 Pa. St. 118 ; Jefferson ville v. 
 Ferry Co., 27 Ind. 100; s. c. 85 Ind. 19, 
 1870; Winpenny v. Philadelphia, 65 Pa. 
 St. 135, 1870. Where it was rendered 
 unsafe by acts of others, notice, express 
 or implied, is an element necessary to lia- 
 bility, the same as in the case of defective 
 highways. Seaman v. New York, 8 Daly 
 (N. Y.), 147; post, ch. xxiii. 
 
 The diUy of those having control of a 
 
 harbor is, so long as it is open to the public, 
 to have it reasonably safe for the public use, 
 and this whether tolls are collected or not for 
 the use of it. Farnaby v. Lancashire Ca- 
 nal Co., 11 A. & £. 223 ; Metcalfe v. Heth- 
 erington, 11 Ex. 257 ; B. c. 5 H. & N. 719 ; 
 Gibbs V. Liverpool Docks, 3 H. & N. 164 ; 
 B. c. L. R. 1 H. L. C. 93, 104, 122 ; Long- 
 more V. Great Western Railway Co., 36 
 L. J. C. P. 136 ; Francis v. Cockrell, L. R. 
 6 Q. B. 184 ; Webb v. Port Bruce Harbor 
 Co., 19 Upper Can. Q. B. 626; Coe v. 
 Wise, L. R. a Q. B. 711; Winch v. Conser- 
 vators of the Thames, L. R. 7 C. P. 471; 
 see Sweeney v. Port Burwell Harbor Co., 
 17 Upper Can. C. P. 574; reversed, 19 
 Upper Can. C. P. 376 ; Berryman ». Port 
 Burwell Harbor Co., 24 Upper Can. Q. B. 
 34 ; Harrison v. Municipality, Mass. 44. 
 
 2 East Hartford v. Hartford Bridge 
 Co., 10 How. (U. S.) 511, 1850; ante, 
 sec. 68. As to extinguishment of ferry 
 franchise by a subsequent legislative 
 grant to build a bridge at t)ie site of the 
 ferry, and take tolls, see Charles River 
 Bridge v. Warren Bridge, 11 Pet. (U. S.) 
 420, 1837. The diBsenting opinion of Mr. 
 Justice Story, on the important constitu- 
 tional question involved in this case, is 
 referred to by Mr. Webster, in a letter to 
 Judge Story, as "the ablest and best 
 written opinion I ever heard you deliver ; 
 it is close, searching, and scrutinizing; 
 the opposite opinion has not a foot nor 
 an inch of ground to stand on." 2 Story's 
 Life and Letters, 268. Chancellor Kent 
 expressed the same opinion. lb. 270. But 
 forty years' subsequent experience has 
 
142 MUNICIPAL COKPOKATIONS. [CH. VI. 
 
 as in some of the ancient charters in England and in this country, 
 upon a municipal corporation, its whole power, to establish and 
 regulate ferries within the corporate limits, the corporation thus 
 representing the sovereign power may make an exclusive grant.* 
 But such a corporation has not an exclusive power over the sub- 
 ject, unless, by express words or necessary inference, it be plainly 
 given to it by the legislature. Hence, power to a municipality 
 to establish and regulate ferries within its limits does not give 
 it an exclusive power, and conse(iuently does not authorize 
 it to confer an exclusive privilege upon others to establish a 
 ferry.^ 
 
 § 115. (79) By its charter a city was empowered " to license, 
 continue, and regulate " as many ferries within its limits, to the 
 opposite shore of a river bounding it, as the public good required, 
 and the common council were further authorized " to direct the 
 manner of issuing and registering the licenses, and to prescribe 
 the sum of money to be paid therefor into the treasury of the 
 corporation." Under this, an ordinance prohibiting all persons 
 from ferrying, without a license from the mayor, and authorizing 
 this officer to grant licenses to any person upon payment into the 
 treasury of the city of the sum of fifty dollars, was sustained 
 against the objections that there was no power to prohibit ferry- 
 ing without a license, and that the license fee was a tax. The 
 words of the charter — " To prescribe the sum of money to be 
 paid into the treasury of the corporation " — were regarded by 
 the court as showing a clear intent to make licenses a source of 
 
 vindicated the judgment of the court, gives the power to limit the issue of 
 
 Construction of special grant. Hartford licenses ; if it can limit, there is no 
 
 Bridge Co. v. Ferry Co., 29 Conn. 210. reason why it cannot bind itself to issue 
 
 1 Costar V. Brush, 25 Wend. 628, 1841. no other ; but the power to license, or to 
 
 ' Mintum v. Larue, 23 How. (U. S.) license and regulate certain occupations, 
 
 435, 1859 ; Harrison v. State, 9 Mo. 526, does not, it seems, include the power to 
 
 1845; McEwen v. Taylor, 4 G. Greene create a monopoly. Chicago ii. Runiph, 45 
 
 (Iowa), 532 ; anU, sec. 89, note. Wliile 111. 90; Logan v. Pyne, 43 Iowa, 524; B. 
 
 the exclusive power conferred by the leg- & H. Ferry Co. v. Davis, 48 Iowa, 133. 
 
 islature upon a city to grant a ferry But " the grant of exclusive ferry licenses 
 
 license does not authorize it to grant an rests upon peculiar grounds. It is in some 
 
 exclusive license, yet the power to grant an sense an extension of a public road. The 
 
 exclusive license is conferred when the objection to the creation of a monopoly is 
 
 city is authorized "to grant or refuse a overcome in the matter of a few by the 
 
 license." B. & H. Ferry Co. v. Davis, consideration of the public necessity or 
 
 48 Iowa, 133, 1878. The power to refuse advantage." lb. per Adajiis, 3. 
 
§ 117.] MUNICIPAL CHAETERS. 143 
 
 revenue to the city ; and the court added that the amount charged 
 as a license fee did not appear to be unreasonable.^ 
 
 § 116. (80) If a municipal corporation, seized of a ferry, lease 
 the same, through the agency of the mayor and aldermen, with a 
 covenant for quiet enjoyment, this covenant will not restrain the 
 mayor and aldermen from exercising the powers vested in them 
 by statute, to license another ferry over the same waters, if in 
 their judgment (which cannot be reviewed by the courts), the 
 public necessity and convenience require it. On such a cove- 
 nant the city may be liable to the covenantees ; but the powers 
 vested in the city officers, as trustees for the public, cannot be thus 
 abrogated. If, however, the city, in its corporate capacity, is 
 the legal owner of an exclusive franchise, its grantees or lessees 
 would hold it, notwithstanding any license to others, whether 
 granted by the mayor and aldermen or any other tribunal.^ 
 
 Borrowing Money. 
 § 117. (81) We will hereafter treat of the implied power of 
 municipal corporations to issue negotiable securities. But this is 
 a different question from the power to borrow money. The power 
 to borrow; may be given in express language, in which case the 
 terms and purpose of the grant will measure its extent. But 
 suppose the power is not expressly conferred, does it exist by 
 
 1 Chilvers v. People, 11 Mich. 43, 1862. son v. Mayor, etc. of New York, 10 Barb. 
 As to distinction between a license fee 223 ; Harris v. Nesbit, 24 Ala. 398 ; United 
 and a tax, see Ash v. People, 11 Mich. States </. Fanning, Morris (Iowa), 348 ; 
 347, and the chapters on Ordinances and Conner v. New Albanj', 1 Blackf. (Ind.) 
 Taxation. Pos(, sec. 857, 768. Amount 43; City ». Ferry Co., 27 Ind. 100; Shall- 
 of license city may exact, the state law cross v. JefEersonville, 26 Ind. 193. The 
 on the subject being held to affect the right of a city, given by charter, to license 
 city. Reddick v, Amelia, 1 Mo. 5, 1821. and tax ferries, is not, unless so expressed, 
 
 2 Fay, in re, 15 Pick. (Mass.) 243, 1834. exclusive of a like right in the state or 
 The court will not try on certiorari the county. Harrison v. State, 9 Mo. 526, 
 conflicting titles of parties to a ferry fran- 1845. " Power to regulate ferries," given 
 chise. lb. ante, ch. v. see. 97. to municipal corporations in general in- 
 
 Rights of municipal corporations in connec- corporation act, construed. Duckwall v. 
 
 lion with ferries and extent of legislative con- New Albany, 25 Ind. 283. When equity 
 
 trol ; see Fanning v. Gregoire et al., 16 How. will annul lease. Phillips v. Bloomington, 
 
 (U. S.) 524, 1853-; East Hartford ». Hart- 1 G. Greene (Iowa), 498. Vfon division 
 
 ford Bridge Co., 10 /ft. 511 : affirming 8. c. of an old town owning ferry franchise, the 
 
 16 Conn. 149 ; 17 Conn. 80, 96 ; Chilvers v. new town owns no interest therein except 
 
 People, 11 Mich. 43; O'Neill v. Police so far as conferred by the legislature. 
 
 Jury, 21 La, An. 586 ; Aiken v. Railroad Hartford Bridge Co. v. East Hartford, 16 
 
 Co., 20 N. Y. 870, 1859, relating to the Conn. 149 ; post, ch. vii. 
 ferry rights of the city of Albany. Ben- 
 
144 MUNICIPAL COEPORATIONS. [CH. VI. 
 
 implication ? It is perhaps settled law in this country that pri- 
 vate corporations, organized ifor pecuniary profit, have, unless 
 specially restricted, an incidental authority to borrow money for 
 their legiti;nate purposes, and to giye negotiable obligijitions 
 for its repayment,^ The question of the incidental authority 
 of municipal corporations to borrow money has not been so 
 thoroughly considered and so often decided as to be entirely 
 tclosed to controversy. In view of the legislative practice to 
 confer, in terms, all powers so important as this, the dangerous 
 nature of this power, by reason of the temptation it holds out to 
 incur needless debts and to make extravagant expenditures, and 
 the facilities it offetrs for frauds, and the se,ttled and salutary 
 doctrine that such corporations have no powers but such as are 
 expressly conferred, and those which are necessary to effect the 
 objects of the corporation, and those which are incidental to the 
 express grants, the author, where the legislative will is wholly 
 silent, would be strongly inclined to deny the existence of a 
 general implied or incidental power to borrow money. But it 
 must be admitted that down to the present time a majority 
 of the express adjudications on the subject favor the contrary 
 opinion. 
 
 '§ 118. (82) The question arose in Ohio, in 1836, and was fully 
 argued and considered. The town of Chillioothe possessed 
 authority to .purchase real estate, erect public buildings, repair 
 streets, and the usual municipal powers. The right to borrow 
 money was not expressly granted, and the only question in the 
 case (an action upon the bonds of the town given for borrowed 
 money) was, whether it was granted by implication. The case 
 was regarded as of the first impression, no authorities in point 
 being produced. The court distinctly decided that in carrying 
 out the express powers, or in effecting any legitimate municipal 
 
 ' Stratton v. Allen, 16 N. J. Eq. 229 ; law corporations in respect to drawing, 
 
 see.anfe, sec. 60, and chapter on Contracts, accepting, or indorsing negotiable secu- 
 
 post, sec. 488. Lucas ». Pitney, 3 Dutch, rities. The court in this case deny (in 
 
 (N.J.) 221 ; Hackettstown Ads. v. Swack- the absence of express legislative author- 
 
 liamer, 8 Vroom, (87 N. J. L.), 191 ; con- ity conferring the power) that it is com- 
 
 struction of specific grant, Mayor, etc. v. petent to a company incorporated in the 
 
 Bailey, 8 Vroom (37 N. J. L.), 519. But usual way for the formation and working 
 
 see observations of £y/es, J., in Bateman of a railway to draw, accept, or endorse 
 
 I). Mid- Wales Railway Co., Law Rep. 1 bills of exchange. Infra, sec. 126. 
 C. F. 610, 1866, as to powers of common- 
 
§ 118] 
 
 MUNICIPAL CHARTERS. 
 
 145 
 
 object, the corporation possessed the incidental or implied right 
 to borrow money.^ And subsequently the Supreme Court of 
 Wisconsin affirmed the implied authority of a municipal corpora- 
 tion, as incidental to the execution of the general powers granted 
 by its charter, and in the absence of a special restriction, to 
 borrow money and issue its bonds therefor, it appearing that the 
 proceeds thereof went into the treasury of the city and were 
 expended by it.^ " The charter," says the court, stating its 
 reasons, "does confer the power to purchase fire apparatus, 
 cemetery grounds, etc., to establish markets, and to do many 
 other things, for the execution of which money would be neces- 
 sary as a means. It would seem, therefore, that in the absence 
 of any restriction, the power to borrow money would pass as an 
 incident to these general powers, according to the well-settled 
 rule that corporations may resort to the usual and convenient 
 means of executing the powers granted ; for certainly no means 
 is more usual for the execution of such objects than that of 
 borrowing money." In this case, as in the other, the question 
 was not raised until the money had been borrowed and the right 
 of third persons had attached.^ 
 
 1 Bank v. Chillicothe, 7 Ohio, Part II. 
 p. 31, 1836. 
 
 2 Mills V. Gleason, 11 Wis. 470, 1860 ; 
 8. c. 8 Am. Law Beg. 692; State v. Mad- 
 ison, 7 Wis. 688 ; Clark v. Janesville, 10 
 Wis. 136; Clarke v. School District, 3 
 Klio. Is. 199, 1855, in which it is held that 
 when money is borrowed to pay a lawful 
 debt of a corporation, and it is so applied, 
 the corporation is liable on the notes 
 given for the money borrowed ; it is not 
 held that notes so given under the inci- 
 dental power to provide for the payment 
 of debts have all the qualities of com- 
 mercial paper. Tnfra, sec. 126. 
 
 » City V. Lamson, 9 WaU. 477, 486, 
 1869, where the Wisconsin cases are re- 
 ferred to by Nelson, J. ; ante, sec. 50, and 
 notes. The right of private corporations 
 generally to borrow money, as incidental to 
 the express powers granted, is extensively 
 considered upon principle and authority 
 in the important case of Curtis v. Leavitt, 
 15 N. y. 9, 1857. See, also, Barry v. 
 Merch. Ex. Co., 1 Sandf. Ch. 280 ; Beers 
 V. Phoenix Glass Co., 14 Barb. 358 ; Strat- 
 ton V. Allen, 16 N. J. Eq. 229 ; Lucas v. 
 
 VOL. I. 10 
 
 Pitney (power of railroad company), 3 
 Dutch. {N. J.) 221 ; Fay v. Noble (manu- 
 facturing corporation), 12 Cush. 1 ; Davis- 
 V. Prop, etc., of Meeting House (religious 
 corporation), 8 Met. 321. Perhaps it i* 
 difficult to draw a distinction between; 
 private and municipal corporations in 
 respect to the incidental right to borrow 
 money. But we see much more reason 
 for affirming the existence of an inciden- 
 tal power of this kind with respect to 
 trading, banking, manufacturing, and 
 railroad corporations than in relation tO' 
 municipal corporations. There is a diflFer- 
 ence between contracting a debt in the 
 prosecution of an ordinary legitimate cor- 
 porate purpose and borrowing money for 
 that purpose. In the one case, the appli- 
 cation of the credit is secured to the ad- 
 vancement of the authorized object, while 
 money borrowed is liable to be lost, or to 
 be diverted to illegitimate purposes. This 
 difference is insisted on with great force 
 by Ac/new, J. C. J., in the dissenting opin- 
 ion in Williamsport v. Commonwealth, 
 84 Pa. St., 487, 507, 1877. It should be 
 remembered, also, that the express powers 
 
146 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. VI. 
 
 § 119. in Indiana, the doctrine is that corporations^ along with 
 the express and substantive powers conferred by their charters 
 take by implication all the reasonable modes of executing such 
 powers which a natural person may adopt. ^ It is a power inci- 
 dent to corporations in the absence of positive restriction to borrow 
 money as means of executing the power.^ In Iowa, school districts 
 
 572. See Nowell v. Mayor, etc., 9 Exch. 
 457 ; Kendall v. King, 84 Eng. C. L. ( 17 C. 
 BJ 483. Note for borrowed money held 
 invalid under the act. Attorney General 
 1). Lichfield, 13 Sim. 547 ; Eeg. v. Lich- 
 field, 4 Q. B. 893. See Bateman v. Mid- 
 Wales Railway Co., L. R. 1 C. P. 610. 
 1866 ; ante, sec. 117, note ; sees. 125, 126. 
 
 1 New England, etc. Co. v. Robinson, 
 25 Ind. 536 ; Lafayette v. Cox, 5 Ind. 38 ; 
 Board, etc. «. Day, 19 Ind. 450; Kyle v. 
 Martin, 8 Ind. 34 ; Haag v. Board, etc., 60 
 Ind. 511 ; Second, etc. Bank «. Danville, 60 
 Ind. 504 ; Board v. Saunders, 17 Ind. 437. 
 
 2 Board v. Day, 19 Ind. 450 ; Miller v. 
 Board, 66 Ind. 162, citing Ketchum v. 
 Buffalo, 14 N. Y. 356 ; Mills i. Gleason, 
 11 Wis. 470; State v. Madison, 7 Wis. 
 688 ; Bank v. Chillicothe, 7 Ohio, 354 ; 
 Moss <j. Harpeth Academy, 7 Heisk. 283 ; 
 Commonwealth v. Pittsburgh, 84 Pa. St. 
 496 ; Clark v. School Dist., 3 Rho. Is. 199 ; 
 Hardy ti. Merri wether, 14 Ind. 203; Shef- 
 field V. Andress, 56 Ind . 157 ; Second Bank 
 V. Danyille, 60 Ind. 504. Where a city 
 negotiated her bonds to raise means to 
 construct water works, and the city treas- 
 urer misapplied a part of the funds so real- 
 ized, leaving debts unpaid on account of 
 such works, it was competent for the city 
 council to issue and sell other bonds to 
 make up such deficiency. Daily v. Co- 
 lumbus, 49 Ind. 169, 1874. Under Ind. 
 Rev. Stat. 1876, authorizing towns to pro- 
 vide apparatus for extinguishing ifires, 
 and to incur a debt on petition of tax- 
 payers, levy a tax, etc., the board of town 
 trustees has power to purchase such ap- 
 paratus on credit, and direct a note there- 
 for to be issued in the name of the town. 
 And this power is not exhausted by the 
 passage, pending the negotiation there- 
 for, of an ordinance for issuance of bonds 
 to realize means to purchase the apparar 
 tus, if no bonds are in fact issued there- 
 under. New Albany Bank v. Danville, 
 60 Ind. 604. 
 
 can be executed without holding that 
 there is an implied power to borrow 
 money. The revenue provisions of charters 
 supply it with the means designed to fur- 
 nish it with money. And powers are not 
 held to exist merely because they are 
 convenient. As applicable to municipal 
 corporations, there is great and almost 
 convincing force in the argument of Sel- 
 den, J., in Curtis ». Leavitt, supra, pp. 
 267, 268. And see Ketchum v. City of 
 Buffalo, 14 N. Y. 356, 365, 1856, where 
 the subject is considered by the same 
 judge, and the power of a municipal cor- 
 poration to contract debts on credit, for 
 legitimate purposes, is admitted to be a 
 question which has " yet to be judicially 
 settled." Infra, sec. 126. See. on the 
 general subject. Canal Bank v. Super- 
 visors, 5 Denio, 517, 1848; Barker v. 
 Loomis, 6 Hill, 463, 1844 ; People v. Bren- 
 nan, 39 Barb. 522, 1863. In Common- 
 wealth V. Pittsburgh, 41 Pa. St. 278, Strong, 
 J., says that the power to execute and 
 issue bonds is inseparable from the exis- 
 tence of all corporations, public and 
 private. Douglass o. Virginia City, 5 
 Nevada, 147, 1869. In New York, see 
 Stat. 18-53, 1135, ch. 603. In Mississippi, 
 Boards of Police of counties have no im- 
 plied power to borrow money ; and when 
 special power to borrow money is con- 
 ferred, it must be fairly pursued ; and it 
 was held that where a warrant properly 
 signed did not (as required by the stat- 
 ute) state on its face the object for which 
 it was issued, nor upon what fund drawn, 
 it could not be enforced. Beamair v. 
 Board of Police, 42 Miss. 238; s. o. 15 
 Wall. 566. There may be ground for a 
 distinction, as to the implied power to 
 borrow money, between counties and or- 
 dinary city corporations. 
 
 Recent English Decisions. — Bond for 
 borrowed money, given after the Munici- 
 pal Corporations Act, held valid. Pallis- 
 ter V. Mayor, etc., 67 Eng. C. L. (9 C. B.) 
 744 ; Payne v. Mayor, etc., 3 Hurl. & Nor. 
 
§ 120.] 
 
 MUNICIPAL CHARTERS. 
 
 147 
 
 have the power to borrow money to discharge debts legitimately 
 created and to pledge the credit of the district for that purpose.^ 
 In Illinois, the same power is accorded after being authorized 
 by a vote of the people of the district.^ But where a law author- 
 izes the donation of money by a municipal corporation to aid 
 in the construction of a railroad and provides for levying a tax 
 to raise the amounts donated as they become due, neither the 
 corporation nor its officers have the power to borrow money or 
 to issue bonds in payment of such donation, and bonds issued in 
 payment thereof are void.^ 
 
 § 120. The subject of the incidental or implied power of a muni- 
 cipal corporation to borrow money to pay pre-existing indebted- 
 ness, and also to enable it to grade and pave its streets, and to 
 issue negotiable bonds for this purpose is elaborately discussed in 
 a case recently decided by the Supreme Court of Pennsylvania.* 
 It was admitted that "taken in its broad sense, the power to 
 borrow money and issue bonds therefor cannot be said to be 
 among the implied powers of a municipal corporation." But, 
 
 ' Austin V. Colony, 51 Iowa, 102. 
 
 ^ Folsom i>. School Directors, 91 111. 
 404, where it is held that the power to 
 borrow money carries with it at common 
 law, independent of the statute, the power 
 to give evidence of the loan. The power 
 to give bonds for money borrowed is not 
 a limitation but an enlargement of their 
 powers, and an order given by them on 
 their treasurer is vahd and may be en- 
 forced against the district. lb. The court 
 limits and distinguishes the case of Clark 
 V. School Directors, 78 111. 474. 
 
 3 Lippincott v. Pana, 92 111. 24 ; Mid- 
 dleport V. Mtaa, Life Ins. Co., 82 111. 562. 
 In Nebraska county bonds may bo issued 
 to raise money to meet current expenses 
 in case of a deficit in the county revenue, 
 but to do this it must first be authorized by 
 a vote of the electors of the county. Daw- 
 son Co. V. McNamar, 4 N. W. Rep. 991. In 
 Georgia it is held to be within the purpose 
 and scope of a municipal corporation to ap- 
 ply the corporate funds or to create a corpo- 
 rate debt for the purchase of an interest in 
 a building to be used as a public school or 
 college for the accommodation of the peo- 
 ple of the town ; and the fact that super- 
 intendence of the school is left in the 
 
 hands of trustees not elected by the cor- 
 poration does not render the appropria- 
 tion of the corporate funds illegal, it ap- 
 pearing that the enterprise is not for any 
 private gain, and that the trustees con- 
 tract to keep up, in the building, a public 
 school. Qucere? Danielly et al. v. Ca- 
 baniss, 52 Ga. 211, 1874. In Wyoming 
 the law proliibiting the trustees of a mu- 
 nicipal corporation from incurring any 
 debt or borrowing money for the use of the 
 city, without having the concurrence of 
 five eighths of the taxable propert3' own- 
 ers, — to be ascertained by a petition for 
 that purpose,— does not preclude the trus- 
 tees from issuing wnrrants on the treasury to 
 be used as evidences of indebtedness, al- 
 though there is no money in the munici- 
 pal treasury at the time, nor any special 
 authority, therefor in the city charter. 
 Ivinson v. Hance, 1 Wy. Ter. 270. 
 
 * Williamsport v. Commonwealth, 84 
 Pa. St. 487, 1877, Paxm, J., delivered the 
 opinion of the court in which Sharswood, 
 Mercur, and Gordon, 33., concurred ; Ag- 
 new, C. J., delivered the dissenting opin- 
 ion, in which Woodward and Sterrett, 33., 
 concurred. 
 
148 MUNICIPAL COEPOEATIONS. [CH. VI. 
 
 nevertheless, the majority of the court after examining the sub- 
 ject and reviewing the authorities, sums up the result in guarded 
 language as follows : — " The foregoing cases rest upon the 
 principle, which we think a sound one, that where a municipal cor- 
 poration has lawfully contracted a debt, it has the implied power, 
 unless restricted by its charter or prohibited by statute, to evi- 
 dence the same by a bill, bond, note, or other instrument ; that 
 the power to contract a debt carries with it by necessary implica- 
 tion the right to give an approprfete acknowledgment of such 
 debt and to agree with the creditor as to the time and mode of 
 payment; that in the absence of statutory provision there is no 
 rule of law limiting the extent of the credit." There was a 
 dissent by three judges on the ground that part of the bonds in 
 question were issued in advance of any debt incurred for grading 
 and paving, and as a means of raising money to pay for future 
 improvements ; that they were sold at a heavy discount, and the 
 proceeds only thus applied ; and while admitting that a muni- 
 cipal corporation may have the implied power to give "suitable 
 evidences of an authorized debt actually incurred, they denied 
 any incidental power in such corporations, as a means of raising 
 money to execute its ordinary charter powers or duties " to issue 
 commercial paper, be it bonds or notes, payable to bearer, and 
 negotiable according to the law merchant or general usage, and 
 either to sell them in the market, or pass them off to individuals 
 by way of a general loan." The dissenting judges admitted that 
 where express power to borrow is given, the municipality has the 
 implied right to issue negotiable evidences of the debt, and they 
 also seemed to concede that if an authorized debt is actually 
 incurred for paving or other proper purposes, the municipality 
 has the right to issue a bond or note or warrant as evidence of 
 it ; but it was not said that, even when thus issued, that is, issued 
 by virtue of a merely incidental power, the instrument partook 
 of all the attributes of commercial paper, especially the one 
 which protects such paper in the hands of a holder for value 
 before maturity, from defences of which he has no notice. 
 
 § 121. If the judgment of the court in this case is to be taken 
 as holding that a municipal corporation, merely by virtue of its 
 authority to pave streets, may, without any express power to 
 borrow money, issue its negotiable bonds in advance and sell 
 
§ 122.] 
 
 MUNICIPAL CHARTERS. 
 
 149 
 
 them as a means of raising money to be applied to this purpose ; 
 may issue them in any sum it pleases and sell them for any price 
 it can obtain, and that bonds so issued are commercial paper 
 with all the qualities and incidents of such paper, — if such is the 
 doctrine of the court, we are unable, notwithstanding the ability 
 with which it is supported, to regard it as otherwise than unsound 
 and dangerous. 
 
 § 122. The question under consideration was somewhat re- 
 cently considered by the Supreme Court of the United States} 
 Four of the justices assented to the proposition that a municipal 
 corporation possessed no inherent or incidental power to raise loans 
 or to borrow money for that purpose : such a power must in their 
 judgment be conferred by legislation, expressly or by plain im- 
 
 1 Mayor of Nashville v. Ray, 19 Wall. 
 468, 1873. 
 
 This subject being under consideration 
 in Hackettstown Ads. v. Swackhamer, 37 
 N. J. L. 191, the able and learned judge 
 who delivered the opinion of the court 
 said : " Municipal corporations, in the ab- 
 sence of a specific grant of power, do not 
 in general possess the capacity to borrow 
 money. A note given by such corpora- 
 tion, for an unauthorized loan, cannot be 
 enforced, even though the money bor- 
 rowed has been expended for municipal 
 purposes. Seemingly, a promissory note 
 given for legitimate purposes by a mu- 
 nicipal corporation will not have the 
 effect, when in the hands of a bona fide 
 holder, of cutting o£f the equities existing 
 between such corporation and the payee. 
 An examination of the books will show 
 that this question has hot as yet received 
 much judicial consideration. The courts 
 of Wisconsin and Ohio have had this mat- 
 ter before them, and have arrived at a re- 
 sult the opposite of that which has just 
 been stated. I have carefully weighed the 
 arguments of these learned tribunals, 
 but they have failed to convince my un- 
 derstanding. The cases referred to are 
 those of Mills v. Gleason, and Bank v. 
 Chillicothe. As a counterpoise to these 
 views stands the weighty opinion of 
 Judge Dillon in his treatise on Municipal 
 Corporations, Vol. I, § 117. Much empha- 
 sis is added to this expression of opinion 
 from the fact that this author had before 
 
 him, at the time he wrote, the opposing 
 cases just cited. In this state of the 
 authority, it cannot be claimed that the 
 principle is so settled that the judgment 
 of this court cannot be freely exercised 
 with respect to this important subject. 
 My conclusion is that already expressed, 
 that a right to borrow money is not to be 
 inferred from any of the ordinary powers 
 conferred in the charters of municipal 
 corporations, and that, under ordinary 
 circumstances, such a power can proceed 
 only from an express grant to that effect. 
 .... The further question was dis- 
 cussed at the bar, whether a municipal 
 corporation, lacking a special authority 
 to that end, can execute a promissory 
 note. 
 
 " I have examined the subject, but the 
 views already expressed render it unne-. 
 cessary to pronounce any final conclusion 
 with respect to it ; for the purposes of 
 the present case, I may say, however, that 
 my present view is, that a corporate body 
 of this character has the general and inherent 
 right to a note as a voucher of indebtedness, 
 but that such note will not have the 
 effect, when in the hands of a bona fide 
 holder before maturity, of cutting off the 
 equities existing between the maker and 
 payee. In this respect I fully concur in 
 the learned opinion of Mr. Justice Brad- 
 ley, recently read in the Supreme Court 
 of the United States, in the case of the 
 Mayor v. Kay, 19 Wall. 468," per Beasley, 
 C.J. 
 
150 MaNIOIPAL C0KP0KATI0N8. [OH. VJ. 
 
 plication. Indebtedness may be created, it was conceded, for 
 authorized purposes, to the extent permitted, but the legitimate 
 means of paying such indebtedness was by taxation in the usual 
 mode and not by the issue of commercial paper for sale in the 
 market ; and such paper, if issued without the sanction of the 
 legislature, although it may be valid as a voucher, is open, into 
 whosesoever hands it may come, to all defences. 
 
 § 123. It was not denied by the*6upreme Court of the United 
 States, in the case referred to in the preceding section, that the 
 power to borrow might be implied from the existence of express 
 powers ^ of such a nature as to be beyond the ordinary range of 
 municipal expenditure, and which are usually executed by means 
 of borrowing ; but it was denied hj four of the judges that such 
 a power was incidental to the ordinary grants of municipal 
 authority. To the author, the brief and compact opinion of Mr. 
 Justice Bradley seems to be a careful and accurate exposition of 
 the law on the subject ; but the remaining four justices appear to 
 have considered that it unduly restricted the powers of muni- 
 cipal corporations. In that court the question still remains 
 open.2 
 
 1 Infra, sec. 127 ; ante, sec. 118, note. of the broad proposition that the pow- 
 ^ The prior case of Lynde v. The er 'to make contracts, for example. 
 County of Winnebago, decided by the as in that case, tlie building of a court- 
 Supreme Court of the United States, house, carries with it the power to 
 16 Wall. 6, 1872, when carefully viewed borrow money, and, as incidental to 
 with reference to the legislation of that, the power to issue negotiable bonds 
 Iowa as to the powers of the county for the money borrowed, will clearly 
 judge in the erection of court-houses appear when the statutory provisions and 
 and the express power to borrow money the facts in that case are considered, 
 for this purpose when the proposi- Power to build court-houses when pay- 
 tion to borrow is sanctioned by a pop- ment therefor is to be made out of the 
 ular vote, will be found to assert or ordinary revenue is conferred by statute 
 involve no general principle, but to turn upon the county judge without the sanc- 
 upon the special statutory provisions tion of a popular vote. When, however, 
 and on the construction and eSect to be money is to be borrowed for this purpose 
 given to the particular proposition that the statute requires the proposition to 
 was submitted to the people. That prop- borrow to be submitted to the vote of 
 osition having been adopted by the vot- the people of the county. No proposi- 
 ers was held by the majority of the tion to borrow money and to issue bonds 
 court to imply the power to borrow was in terms submitted to the people, but 
 money to accomplish the object in view there was submitted this question, viz., 
 and assuming the construction adopted " Shall the county judge, In 1860, levy a 
 to be the true one, the result reached log- tax of seven mills for constructing a 
 ically followed. That this judgment of court-house in the county, said tax to be 
 the Supreme Court in the case just levied from year to year until a su£Scient 
 referred to is not authority in favor amount is raised for that purpose, not. 
 
§ 125.] MUNICIPAL CHAKTEES. 151 
 
 § 124. The nature and extent of the power to borrow money and 
 issue negotiable paper therefor was considered at length by the 
 United States Circuit Court for Missouri,^ in which after a re- 
 view of the decisions — English and American — the following 
 conclusions were reached : Whether a municipal corporation 
 possesses the power to borrow money, and to issue negotiable 
 securities therefor, depends upon a true construction of its char- 
 ter and the legislation of the state applicable to it. It has no 
 incidental or inherent authority under the usual grants of muni- 
 cipal powers as a means of discharging its ordinary municipal 
 functions. Such authority may be inferred from special and ex- 
 traordinary powers., which require the expenditure of unusual sums 
 of money, when it is usual to execute such powers by means of 
 borrowing, and when, upon the whole legislation applicable to 
 the municipality, such appears to have been the legislative intent. 
 These principles were applied, and coupon bonds to borrow 
 money to erect and repair wharves and to open streets, issued 
 under the general grants of municipal power in the charter, were 
 held not to be binding upon the city, while other bonds, issued 
 under a special act of the legislature, in payment of stock in com- 
 panies organized to construct macadamized roads from the city, 
 were held to be valid. 
 
 § 125. Whether there is power in a municipal corporation to 
 borrow money and to issue negotiable paper, depends, we think, 
 
 however, to exceed ten years." The prop- be imposed, or that the work should pro- 
 
 osition having been carried, a majority of ceed only pari passu with the progress of 
 
 the court (three judges dissenting) held its collection from year to year. What 
 
 that under the Iowa statute the vote gave is implied is as effectual as what is 
 
 the authority to borrow money and issue expressed." 
 
 the bonds. Mr. Justice Swayne said, " It The dissenting judges said, "We can- 
 was expressed in this formula (of the not find in this vote any authority in the 
 vote taken) that a court-house was to be county judge to issue the bonds of the 
 built, and we think that it was implied county." 
 
 that money was to be borrowed to accom- i Gauee v, Clarksville, 5 Dillon, 165, 
 
 plish that object. Otherwise the vote 183, 1879. Thomas v. Port Hudson, 27 
 
 gave no authority which did not already Mich. 320, 1873; declares the remedy for 
 
 exist, and was an idle ceremony. The the money or property received. Post, sec. 
 
 statute authorized an appeal to the voters 126, note. The remedy where bonds of 
 
 only that they might give or refuse a city are issued without authority and 
 
 authority to incur a debt. the money thereon is actually received 
 
 " It could not have been intended that by the city, is not an action on the bonds, 
 
 the erection should be delayed till a sum but to recover the money. Gause ». 
 
 sufficient to pay for the structure had Clarksville, supra. 
 been realized from the tax authorized to 
 
152 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. VI. 
 
 upon the legislative intent to be collected from statutes, general 
 and special, applicable to the municipality. The American cases 
 are conflicting and cannot be harmonized. 
 
 The following summarizes our view of the sound and true 
 doctrines on this subject : — 
 
 1. The power to borrow money as a means of raising a fund to 
 make future local improvements, or to carry on the ordinary 
 operations of the municipality, cannot be implied from the mere 
 authority to make such improvemej^ts or from the usual grants 
 of municipal power. These contemplate that the expense of the 
 execution of the ordinary municipal powers shall be met by the 
 revenues derived year by year from taxation. 
 
 2. It does not follow that because banking and trading corpora- 
 tions and other private corporations organized for pecuniary profit 
 are held in this country to possess the incidental power to borrow 
 money, and to issue commercial paper having all the qualities 
 attributed to such paper by the law merchant, that a like power 
 is inherently possessed by public and municipal corporations.^ 
 
 1 As to the power of corporations to 
 issue commercial paper, the law of Eng- 
 land is settled. In England no corpora- 
 tion, whether municipal (Reg. v. Lich- 
 field, 4 Ad. & El. [N. S.] 891, 906) or pri- 
 vate (Bateman v. Mid-Wales Eailway 
 Co., Law Rep. 1 C. P. 499, 1866), has the 
 incidental right to make commercial 
 paper, except the Bank of England, 
 which was incorporated for the very- 
 purpose, and trading corporations strict- 
 ly, such as the East India Company. 
 Accordingly it is laid down by Mr. Justice 
 ByUs, in his work on bills, that, " without 
 special authority, expressed or implied, 
 a corporation has no power to make, in- 
 dorse, or accept bills or notes. ( Byles on 
 Bills [8th Eng. ed.], 62) ; Grant on Corp. 
 276. Thus, a water-works company 
 (Broughton v. Manchester Water-Works, 
 8 Barn, & Aid. 1), a gas joint-stock com- 
 pany (Bramah v. Roberts, 3 Bing. N. C. 
 963), or even trading companies, unless 
 such a power is essential to the purposes 
 for which they are formed (Bateman v. 
 Railway Co., supra), have no general or 
 implied authority to make commercial 
 paper. In Bateman's case, last cited, the 
 question for the first time arose in Eng- 
 land, as late as 1866, as to the right of a 
 
 railway company, with an authorized 
 capital of £170,000, to make or accept 
 bills of exchange, and it was unanimous- 
 ly decided, by judges of great eminence 
 (Erie, C. J., Byles, Keating, and Montague 
 Smith, 33.), that the company had no such 
 power. The acceptance was under seal, 
 and it is a mistake to suppose that the 
 decision rested on the teclmical ground 
 that a corporation can only contract 
 under seal. It was placed upon the broad 
 ground that there was no act of parlia- 
 ment, general or special, which conferred 
 the power. It was admitted by all the 
 judges tliat the railway company might 
 incur debts in the construction or opera- 
 tion of the road; "but it is one thing," 
 says Keating, J., " to say that they shall be 
 liable to be sued for goods sold and de- 
 livered or for work done, and an entirely 
 diflferent thing to say that they may 
 accept bills in payment." And to the 
 same effect was the opinion of the other 
 judges. The principle of this case was 
 approved in the Peruvian, etc. Railway 
 Co. V. Thames, etc. Insurance Co., Law 
 Rep. 2 Ch. 617, when a general inciden- 
 tal power to issue bills of exchange and 
 negotiable instruments under tlie com- 
 panies' act of 1862 was denied, and the 
 
§ 125.] MUNICIPAL CHARTERS. 153 
 
 The analogy is false and delusive. The purposes of the two 
 classes of corporations, the powers of their officers, and the means 
 of making provision for meeting their liabilities, are all essentially 
 different. The nature of the usual duties devolved by law upon 
 municipalities does not make it necessary to imply the existence 
 of a general power to borrow money and to issue commercial paper. 
 The consequences of recognizing such a power, in the extrava- 
 gance it will stimulate, in the frauds it will engender, and in the 
 ruinous indebtedness it will inevitably produce, are alarming to 
 contemplate. The history of the express power given to muni- 
 cipalities to aid railways by borrowing money and issuing com- 
 mercial obligations is full of warning and instruction. 
 
 3. The power to issue commercial paper which is unimpeach- 
 able in the hands of the holder is not among the ordinary inci- 
 dental powers of a public or municipal corporation. It must be 
 conferred expressly, or by fair implication, as a necessary, or at 
 least a reasonable and usual means of executing the particular 
 power to which it is claimed to be incidental. 
 
 4. Express power to borrow money, perhaps in all cases, but 
 especially if conferred 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 to include 
 
 power held to depend upon the proper which the acceptance is given is suffl- 
 construction of the memorandum and ciently connected with the purpose for 
 articles of association. The companies which the acceptors are incorporated. It 
 organized under that act may communi- would be inconvenient to the last degree 
 cate this power to their directors, but it if such an inquiry could be gone into, 
 must be given expressly or by fair intend- Some hills might be given for a consid- 
 ment in the memorandum and articles of eration which was valid, as for work 
 association of the company, or it will not done for the company, and others as a 
 exist. In England, as shown by Bate- security for money obtained on loans be- 
 man's case, supra, it is held that, inasmuch yond their borrowing powers. It would 
 as the corporation has no power to accept be a pernicious thing to hold that, in re- 
 bills, it cannot be made liable on its ac- spect of the former tlie corporation might 
 ceptance, thougli the bill was drawn for be sued by an indorsee, but in respect 
 a valid and binding debt. On this point, of the latter, not." Gause v. Clarksville, 
 Erie, C. J., says : '• The bill of exchange 6 Dillon, 165, 1879. 
 
 is a cause of action — a contract by itself The American courts, however, have 
 
 — which binds the acceptor in the hands generally held that banking, trading, 
 
 of an indorsee for value ; and I conceive commercial, railway, and other private 
 
 it virould be altogether contrary to the corporations, organized for pecuniary 
 
 principles of the law which regulates such profit, have an incidental power to issue 
 
 instruments that they should be valid or commercial paper when sucli power is 
 
 not according as the consideration be- not negatived by a true construction of 
 
 tween the original parties was good or their charters or constituent acts. See 
 
 bad, or whether, in the case of a corpor- chapter on Contracts, post. 
 ation, the consideration in respect of 
 
154 MUNICIPAL COEPOKATIONS. [CH. VI. 
 
 the power (the same as if conferred upon a corporation organized 
 for pecuniary profit) to issue negotiable paper with all the inci- 
 dents of negotiability.^ 
 
 5. When it is expressly provided by statute, that public and 
 municipal corporations shall audit all claims presented, and shall 
 issue to the creditor warrants or orders, and no other provision 
 is made, this will not authorize as a means of payment the issue 
 of negotiable or commercial paper which shall possess all the 
 incidents of negotiability ; and if issu^, it is subject to all defences 
 in the hands of a transferree to which it would be subject in the 
 hands of the original holder. 
 
 6. A municipal corporation proper, although in the execution 
 of its ordinary corporate powers and the discharge of its corporate 
 duties, it may make contracts and create debts, and may, when 
 not restrained by statute, evidence the liabilities thus incurred, yet 
 if the instrument is made to assume the form of negotiable paper, 
 such paper is always open to defences in the hands of transferees 
 when it is issued without express authority from the legislature, 
 or authority fairly to be implied from the charter or legislature 
 applicable to the municipality.^ 
 
 § 126. In other words, the author regards it as the true doctrine 
 that, as incidental to the discharge of its ordinary corporate func- 
 tions, no municipal or public corporation has the right to invest 
 any instrument it may issue, whatever its form, with that supreme 
 and dangerous attribute of commercial paper which insulates 
 the holder for value from equities which attach to its inception. 
 
 ' Ante, sec. 117, note; post, sec. 127; ^ The arguments in support of the 
 Williamsport v. Commonwealth, 84 Pa. propositions of the te.xt embodied in this 
 St. 487; Commonwealth v. Pittsburg, 34 section will be found to be ably presented 
 Pa. St. 496 ; Reinboth v. Pittsburg, 41 Pa. by Bradlei/, J., in the Mayor of Nashville 
 St. 278 ;MiddIetoni'. Alleghany Co., 37 /d. ». Ray, 19 Wall. 468, 1873; by Beashy, 
 241; Seybert v. Pittsburg, 1 Wall. 272; C. J, in Hackettstown ads. Swackhamer, 
 Galena v. Corwith, 48 111. 423; Kelly t. 87 N. J. L. (8 Vroom) 191, 1874; and 
 Mayor,4Hill (N.Y,), 265; DeVossu. City hj Agnev),C J., dissenting in Williams- 
 Richmond, 18 Gratt. 338 ; E. R. v. Evans- port v. Commonwealth, 84 Pa. St. 487, 
 ville, 15 Ind. 395 ; Police Jury v. Britton, 505, 1877. See also Gause v. Clarksville, 
 15 Wall. 572 ; Daniel on Nego. Inst. sees. 5 Dillon C. C. R. 165, 1879 ; Knapp v. Ho- 
 1527 and 1531; Rogers o. Burlington^ 3 boken, 89 N. J. L. (10 Vroom) 394, 
 Wall. 654, 666 ; Milner's Admr. v. Pensa- 1877. 
 
 cola, 2 Woods, 637 ; Mayor v. Inman, 57 The authorities in favor of the other 
 
 Ga. 370 ; Tucker o. City of Randolph, 76 view are collected, and the argument in 
 
 N. C. 267 ; City of Vicksburg w. Lorn- support of that view is presented with 
 
 bard, 51 Miss. 125; Mercer Co. n. Racket, fulness, in the opinion of the majority of 
 
 1 Wall. 95. See cases cited in notes to the court, delivered by Paxson, J., in Wil- 
 
 sec. 488, post, Uamsport v. Commonwealth, supra. 
 
§ 127.] 
 
 MUNICIPAL CHARTEES. 
 
 155 
 
 This point should be guarded by the courts with the utmost 
 vigilance and resolution.^ 
 
 § 127. (83) While express power to a municipal corporation 
 " to borrow money " is usually held to include the power to issue 
 its negotiable bonds, or other securities, to the lender.^ But 
 
 1 If money is improperly borrowed in 
 advance of liabilities actually created, 
 and reaches the municipal treasury, and 
 is expended by direction of the governing 
 body for authorized municipal objects, 
 the municipality may then be liable in the 
 proper action or suit; but the action 
 should be, we think, for money had and 
 received or by suit in equity and not upon 
 the invalid bonds. Bateman v. Mid- Wales 
 Kailway Co., L. R. 1 C. P. 499, 1866 ; 
 Thomas v. Port Hudson, 27 Mich. 320; 
 Hackettstown ads. Swackhamer, 37 N. J. 
 L. 191; Eeg. v. Litchfield, 4 Ad. & 
 El. N. S. 891, 906 ; Mayor, etc. v. Ray, 
 19 Wall. 468, 480, per Bradley, J. ; ante, 
 sec. 124, note. The holder of such bonds, 
 will, it seems, be considered as the assignee 
 and owner of the original claim of the payee. 
 Oneida Bank v. Ontario Bank, 21 N. Y. 
 490 ; Mayor, etc. v. Ray, 19 Wall. 46?, 
 484, per Hunt, J. ; Shirk v. Pulaski County, 
 4 Dillon, 208, 1877 ; Paul v. Kenosha, 22 
 Wis. 266; Cause v. Clarksville, 5 Dillon, 
 C. C. 165, 1877 ; post, sees. 910, 138, 135, 
 note ; chapter on Contracts. In Hacketts- 
 town ads. Swackhamer, supra, any remedy 
 upon the unauthorized note was denied, 
 and Beasley, C. J. , seemed to think the only 
 remedy was in equity to be subrogated to 
 the rights of the creditors of the corpora- 
 tion who had been paid by the proceeds of 
 the money improperly borrowed ; but no 
 necessity is perceived for so strict a doc- 
 trine. I 
 
 * Commonwealth v. Pittsburg, 34 Pa. 
 St. 496, 511, 1859 ; Railroad Co. v. Evans- 
 ville, 15 Ind. 895, 412, 1860 ; Middleton v. 
 Allegheny Co., 37 Pa. St. 241 ; Reinboth 
 V. Pittsburg, 41 Pa. St. 278 ; Seybert v. 
 Pittsburg, 1 Wall. 272; Rogers v. Bur- 
 lington, 3 Wall. 654, 666, per ClifTord, J. ; 
 De Voss V. Richmond, 18 Gratt. (Va.) 
 338; 8. c. 7 Am. Law Eeg. (N. S.) 589; 
 Galena v. Corwith, 48 111. 423, 1868 ; post, 
 sec. 488. Money borrowed, and note 
 given by ofScers of a town, without au- 
 
 thority, does not bind the town in case it 
 never receives the benefit of it. Benoit 
 V. Conway, 10 Allen, 528; People v. Su- 
 pervisors, 34 N. y. 516; Police Jury v. 
 Britton, 15 Wall. 566. 
 
 The ground has been broadly taken, 
 that for debts and obUgations lawfully 
 created, any corporation, public as well as 
 private, has the implied authority, unless 
 pro^bited by statute, charter, or by-law, 
 to evidence the same by the execution of 
 a bill, note, bond, or other contract, and 
 to secure the same by a mortgage, pledge, 
 or other proper disposition of its property,; 
 that power to contract a debt carries with 
 it the power to give a suitable acknowl- 
 edgment of it; and there is no rule of 
 law in the absence of a statute limiting 
 the length of the credit. Municipality v. 
 McDonough, 2 Rob. (La.) 242, 250, 1842 ; 
 Barry v. Merchants' Express Cpmpaijy, 1 
 Sandf. Ch. 280; cited with approval in 
 Curtis a. Leavitt, 15 N. Y. 9, 62, and in 
 Sn^th V. Law, 21' N. Y. 296, 299, 1860 ; 
 Bank, etc. ». Chillicothe, 7 Ohio, Part II. 
 31, 1836; Ketchum ». Buffalo, 14 N. Y. 
 356, 1856, market-house bonds given on 
 twenty-five years' time held valid ; and 
 see cases cited on page 375, by Wright, 
 3. ; Douglass v. Virginia City, 5 Nev. 
 147. See also 'and compare, Bateman 
 V. Mid-Wales Railway Co., L. R. 1 C. 
 P. 510 ; Hackettstown ads. Swackhamer, 
 37 N. J. L. 191 ; Wyandotte t. Zeitz, 21 
 Kan. 649; Lawrence v. Kellam, 11 Kan. 
 512, 
 
 As to express power to issue bonds, etc., 
 see also Bank of Rome v. Village of 
 Rome, 18 N. Y. 38, 44, and cases cited ; 
 Mills V. Gleason, 8 Am. Law Reg. 683; 
 Louisiana State Bank v. Orleans Naviga- 
 tion Co., 3 La. An. 294. State bonds 
 negotiable. Delafield v. Illinois, 2 Hill, 
 159. 
 
 Power "to borrow money" held to in- 
 clude power to issue negotiable bonds or other 
 usucd securities to the lender: Common- 
 
156 MUNICIPAL CORPORATIONS. [CH. VL 
 
 it does not include the power to issue notes to circulate as 
 money, in violation of the statute law and public policy of the 
 state.^ 
 
 § 128. Express charter power to borrow money for general 
 purposes, not exceeding a specified sum, was held by the Supreme 
 Court of the United States, upon an examination of the nature 
 of other powers contained in the charter, not to prohibit or limit 
 the city in incurring an indebtedaess for authorized purposes 
 greater than the sum it was empowered to borrow.^ 
 
 § 129. (84) A contract whereby a city agrees with an indi- 
 vidual that if the latter will pay or advance the amount of interest 
 due and to become due on certain bonds of the city already 
 issued, the city will pay or refund the amount, is " not a borrow- 
 ing of money " within the terms or spirit of the charter prohibit- 
 ing the municipal authorities from borrowing money unless 
 authorized by a prior vote of the citizens ; such a contract being 
 one simply for the payment of a debt.^ Under authority to a 
 city to borrow money, it may, if there be no statutory restriction, 
 
 wealth K. Pittsburg, 34 Pa. St. 496, 511 ; principle from McClure v. Bennett, 1 
 
 Rogers v. Burlington, 3 Wall. 654, 1865; Blaekf. 189, and Mears v. Graham, 8 lb. 
 
 ante, sec. 117. Board of supervisors of a 144." Power to borrow money, if granted 
 
 county have not power to issue bill of ex- on condition of a previous popular vote, 
 
 change. Canal Bank v. Supervisors, etc., must be exercised in conformity with the 
 
 5 Denio, 517, 1848. Nor have village condition or the orders issued therefor 
 
 trustees. Lake v. Trustees, 4 Denio, 620. will be void. Loekport a. Gaylord, 61 
 
 Corporate city has tlie power. Kelly v. 111. 276, 1871. What amounts to a borrow- 
 
 Mayor, 4 Hill, 2B3 ; compare Clark v. Des ing. Zb. 
 
 Moines, 19 Iowa, 199, 213. In Inhabit- ^ Thomas v. Richmond, 12 Wall. 349, 
 
 ants, etc. v. Weir, 9 Ind. 224, 1857, an 1871. 
 
 action against a congressional township Construction of the constitutional 
 
 upon a promissory note made by the trus- power of the general government to " bor- 
 
 tees, the court, per Stuart, J., says: row money." See Hepburn u. Oris wold, 8 
 
 " There is no power to make notes con- Wall. 603, and Knox v. Lee, 12 Wall. 457, 
 
 ferred by the act of 1841. That act was 1871, known as the " legal-tender cases." 
 
 the charter under which they acted. 2 Hitchcock v. Galveston, 96 U. S. 
 
 The trustees, as a corporation, had no 341, 1877 ; approved. United States v. Fort 
 
 power but such as that act expressly con- Scott, 99 U. S. 152. 
 
 ferred, and such as might arise by impli- ' Gelpecke v. Dubuque, 1 Wall. (O. S.) 
 
 cation, or be essential to the exercise of 221, 1863, Miller, J., dissenting. Where 
 
 those granted. Such a power is always a city can make such a contract, with the 
 
 expressed, even in bank charters. In so sanction of a prior vote, the sanction will, 
 
 limited a corporation as a congressional in an action on such a contract, be pre- 
 
 township, the power to make promissory sumed until the contrary is shown by the 
 
 notes could hardly be implied. The case city. lb. per Swayne, J. 
 at bar cannot easily be distinguished in 
 
§ 130.] MUNICIPAL CHARTERS. 157 
 
 make the principal and interest payable at the place where the 
 money is borrowed, or where it pleases, though beyond the limits of 
 the stated Among the powers of a strictly municipal nature 
 conferred upon a city was the power " to borrow money for any 
 object, in its discretion," or " for any public purpose," on a two- 
 thirds vote of the citizens ; and this was held, in connection 
 with a general statute of the state, recognizing by implication 
 (as construed) the validity of city and county bonds gener- 
 ally, to authorize such city to issue bonds to aid in the con- 
 struction of a railway or plank road leading to, through, or from 
 the city .2 
 
 Limitation on Power to become indebted. 
 
 § 130. (85) Provisions are frequently made in constitutions, 
 or in charters or incorporating acts, to prevent the creation or 
 increase of municipal indebtedness beyond certain limits, or except 
 upon certain conditions. The judicial construction of some of 
 these provi.sions will be noticed in this place. The constitution 
 of Maryland contains a provision that " no debt shall be created 
 by the mayor and city council of Baltimore " (except for speci- 
 fied temporary purposes), unless it shall be first sanctioned by 
 the legislature and approved by the voters of the city. The city 
 being the owner of a large amount of stock in the Baltimore and 
 
 1 Meyer v. Muscatine, 1 Wall. (U. S.) Evansville, 15 Ind. 395, 412, 1860, dis- 
 
 884, 1863. In this case, the court, per tinguished as to place of payment from 
 
 Swayne, J., say (1 Wall. 391): "The Prettyman w. Tazwell Co., 19 111. 406 ; ^2 
 
 powerof a municipal corporation to make 76. 147, which were regarded as turning 
 
 any contract does not depend upon the upon peculiar statutory provisions. See 
 
 place of performance, but upon its scope further, chapter on Contracts, post. 
 
 and object. A city authorized to estab- ^ Meyer v. Muscatine, 1 Wall. (U. S.) 
 
 lish gas-works and water-works, and to 884, 1863, Miller, J., dissenting, in an 
 
 gravel its streets, may buy water, coal, opinion of marked ability ; Mitchell v. 
 
 and gravel beyond its limits, and agree to Burlington, 4 Wall. 270, 1866 ; Rogers v. 
 
 pay where they are found, or elsewhere. Burlington, 3 Wall. 654, 1865. General 
 
 The principal power, when expressed, power granted to a city to create a debt 
 
 draws to it, by necessary implication, the will be construed to mean debts for speci- 
 
 means of its execution. This is the fied, legitimate, and proper municipal pur- 
 
 settled rule in the construction of all poses, and not for any or all purposes, at 
 
 grants of authority, whether to govern- the discretion of the city council or in- 
 
 ments or individuals." Express authoriti/ habitants. Lafayette v. Cox, 5 Ind. 
 
 <o a e/Vy " to iorrojo money," necessarily im- (Porter) 38, 1854. Limitation on taxing 
 
 plies the power to determine the time of power does not limit power to contract debts. 
 
 payment and to issue bonds, or other evi- Emerson v. Blairsville, 2 Pittsb. (Pa.) 
 
 dence of indebtedness, to borrow within Rep. 89 ; post, sec. 162. See, further, 
 
 or without the state, and to agree to ch. xiv. on Contracts, post. 
 pay where borrowed. Railroad Co. v. 
 
158 MUNICIPAL COEPORATIONS. [CH. Vt 
 
 Ohio Railroad Company, without previous legislative authority 
 or the approval of the voters, passed an ordinance to provide for 
 the raising of one million of dollars, by hypothecating its railroad 
 stock, and for the investment of the same in the bonds of another 
 railroad company in process of construction. The validity of 
 this ordinance being drawn in question, the court considered it 
 to be plain that the constitutional provision quoted was intended 
 to prohibit the city from aiding in the construction of works of 
 internal improvement without the previous assent of the legisla- 
 ture and of a majority of the voters of the city ; and that the 
 ordinance (notwithstanding the ingenious use of the phrase 
 raising instead of borrowing money, and the further provision 
 that the parties furnishing the money should look for its repay- 
 ment exclusively to the stock pledged, and that the city should 
 not be responsible for any deficit) did create a debt within the 
 meaning of the constitution, and was therefore void.^ 
 
 § 131. (86) Under a charter prohibiting the common council 
 of a city from " authorizing any expenditure, for any purpose,^' in 
 the current political year, exceeding the amount of the annual tax 
 Uvy, the council cannot authorize any expenditure to be made 
 within the year exceeding the limi^t ; but they are not forbidden 
 to authorize, in that year, an expenditure to be made in a subse- 
 quent year, for services to be performed in such subsequent year.^ 
 The charter of Chicago contains the provision that " no contract 
 shall be made by the common council, and no expense incurred, 
 unless an appropriation shall have been previously made concerning 
 
 • Baltimore v. Gill, 81 Md. 375, 1869. 2. Limitation on rate of tax to be an- 
 That a debt may be created by borrowing nually levied construed. State v. Mayor, 
 money, although there be a provision ex- 23 La. An. 358. The charter of a city 
 empting the borrower from liability be- provided that " no funded debt shall be 
 yond the property pledged, see Newell contracted." It was decided, that a city 
 V. People, 3 Seld. (7 N. Y.) 9, 87. Where bond, issued on time, for the purchase of 
 a municipal corporation is forbidden by market grounds, was not a funded debt. 
 the constitution to become indebted in any Ketchum v. Buffalo, 14 N. Y. 356. Mean- 
 amount exceeding a given indebtedness, ing of " funded debt" and "funding" 
 held, 1, that if it exceed the limited considered by Selden, J., lb. p. 367, and 
 amount it may be enjoined ; 2, that the by Wright, J., p. 878. City may fimd 
 bill is maintainable by a citizen and tax- valid bonds and issue new bonds therefor, 
 payer of the place. Springfield if. Ed- without express authority. Galena v. 
 wards, 84 111. 77, 1877. Eemedy of Tax- Corwith, 48 111. 423, 1868 ; Burr v. Car- 
 payer, see post, sec. 914. bondale, 76 111. 455, 474, 1875. How 
 
 3 Weston V. Syracuse, 17 N. Y. 110, fund. Smith ». Morse, 2 Cal. 524 ; antei 
 
 1858. See, also, Cook v. City of Buffalo, sees. 69, 68 ; 16 Wall. 566. 
 1 Clinton's N. Y. Digest, "Buffalo," sec. 
 
§ 132.] MUNICIPAL CHARTERS. 159 
 
 such expense," and the comptroller is required to submit each 
 year an estimate of the amount necessary to defray the expenses 
 of the city for the current year. With this provision in force, 
 the city made a contract with a gas company whose works were 
 already complete to take gas for its streets and public buildings 
 at a specified price for the period of ten years. This contract 
 was held invalid on the ground that under the above charter 
 provision there was no actual or reasonable necessity to make a 
 contract extending over ten years, no appropriation having been 
 made commensurate with the obligations of the contract ; and 
 the court, aside from the special provision of the charter, inclined 
 to the same result on the ground that the power was legislative 
 and that the council could not, without any reasonable necessity 
 appearing, bind their successors for ten years or indefinitely. 
 Drummond, J., added : " In all cases of contracts to run for years, 
 the authority to make them should be clear. It is better that all 
 parties should understand there is a limit to the power of muni- 
 cipal bodies in such cases." ^ 
 
 § 132. The city of Gralveston, under a provision of its charter 
 authorizing it to construct sidewalks and make street improve- 
 ments, and to reimburse itself for the expense from abutting 
 lot owners, made a contract for local improvements of this char- 
 acter which created a liability exceeding f50,000. This contract 
 was claimed by the city to be invalid by reason of another pro- 
 vision of the charter that the council shall not borrow money for 
 general purposes, to an amount greater than §50,000. The Su- 
 preme Court of the United States held the objection to the 
 validity of the contract not to be well taken ; and the reasons 
 for its judgment are thus stated by Mr. Justice Strong : ^ — 
 
 " The limitation is upon the power to borrow money, and to 
 borrow it for general purposes. It implies that there may be 
 lawful purposes which are not general in the sense in which 
 that word is used in the charter. An examination of the whole 
 
 1 Garrison o. Chicago, 7 Biss. 480, received into the County Treasury, but 
 
 1877, Drummond, J. The statute of the estimate of the board of supervisors 
 
 California, which declares that the board of wliat the revenue will be. Babcock v. 
 
 of supervisors must not contract debts Goodrich, 47 Cal. 488, 1874. 
 andliabilities which, added to the salaries 2 Hitchcock v. Galveston, 96 U. S. 
 
 of officials, will exceed the revenue of 341, 1877. Approved, U. S. t. Fort 
 
 the county for the year, does not mean Scott, 99 U. S. 152, 1878. 
 by "revenue" the actual amount of money 
 
160 MUNICIPAL CORPORATIONS. [CH. VI. , 
 
 instrument, and of the numerous and large powers conferred 
 upon the council, as well as duties imposed, makes it evident 
 that the provision could not have been intended to prohibit in- 
 curring an indebtedness exceeding the sum named. It is in no 
 sense a limitation of the debt of the city. If it is, the grant of 
 power the charter contains was an idle thing, and the duties 
 imposed could not be performed. The council, as we have seen, 
 is empowered to grade and pave the streets and to construct 
 sidewalks. There is no express 'limitation of these powers. 
 Their exercise necessarily involves large expenditure. Such ex- 
 penditure is, therefore, authorized. It is a plain incident of the 
 power, and it is a special expenditure. It is for a new work, 
 unlike the work of keeping in repair. Conceding that it is a 
 purpose of the act incorporating the city, it cannot be regarded 
 as a general purpose, for if it is, all purposes of the charter are 
 general. Grading a street or making a sidewalk, where none 
 had existed before, is a special improvement, not like repairs of 
 constant recurrence. By another article of defendant's charter 
 the city council was authorized to provide by ordinance special 
 funds for special purposes, and to make the same disbursable 
 only for the purpose for which the fund was created. For these 
 reasons we are of opinion that the limitation upon the power of 
 the council to borrow for general purposes did not make the 
 agreement with the plaintiffs invalid." 
 
 § 133. Under a statute which was passed to prohibit the mak- 
 ing of contracts by unauthorized official agents for supplies for the 
 use of the city of New York, if a contractor makes a contract 
 without observing the requirements of the statute and furnishes 
 supplies thereunder, the city is not bound, although the materials 
 supplied were used by it, and an implied liability cannot be raised 
 in the face of the statute.^ 
 
 § 134. (87) A municipal charter provided that it should not 
 be lawful for the city council to make, or authorize to be made, 
 " any contract for the payment of money beyond the current fiscal 
 year" declaring every such prohibited contract " illegal and void." 
 In construing this language the court says: "By this section of 
 the charter, the legislature have, in the most explicit manner, pro- 
 
 1 McDonald v. New York, 68 N. Y. 23, 1876; s. o. 23 Am. Rep. 144; post, 
 sees. 13S, note, 460; arUe, sec. 126, note. 
 
§ 135.] MUNICIPAL CHARTERS. 161 
 
 hibited the city council from contracting any debt beyond the 
 fiscal year. If the city council had, at the time the contract was 
 made, in 1845, passed an ordinance that the expense of lighting 
 the streets of the city for that year should be paid in 1848, by a 
 tax then assessed for that purpose, it would have come within 
 the letter of the prohibition. It is none the less a violation of 
 its spirit that the council did not pass the ordinance providing 
 for its payment until 1848." ' 
 
 § 135. (88) The constitution of Iowa contains the provision 
 that " no county, or other political or municipal corporation, 
 shall be allowed to become indebted in any manner, or for any pur- 
 pose to an amount exceeding five per cent on the value of the 
 taxable property within such county or corporation, to be ascer- 
 tained by the last state and county list, previous to the incurring 
 of such indebtedness." Under this constitutional provision, as 
 construed by the Supreme Court -of the state, no indebtedness, 
 for whatever purpose created, is exempted from the operation of 
 the prohibition, and applies to negotiable bonds issued under legis- 
 lative authority as well as to other debts, and the creditor or 
 bondholder must at his peril take notice- that the constitutional 
 limit is not exceeded.^ If a municipal corporation has the means 
 in its treasury to meet its indebtedness, the issue of warrants to 
 an amount larger than five per cent of its taxable property is not 
 a violation of the section of the state constitution which provides 
 that " no municipal corporation shall be allowed to become in- 
 debted, in any manner or for any purpose, to an amount exceed- 
 
 1 Per Ccddwell, J., Jonas v. Cincinnati, 885. The fact that the corporation re- 
 18 Ohio, 318, 322, 1849. Construction of ceived the value of its bonds, and that 
 similar provision in otiier charters. Good- the purchaser acted in good faith, and 
 rich V. Detroit, 12 Mich. 279 ; Philadel- without notice, does not entitle him to re- 
 phia V. Flanigen, 47 Pa. St. 21 ; Johnson cover the amount paid therefor. Since, 
 V. Philadelphia, /6. 382; Wallace!). San in the view of the court, the receipt of 
 Jose, 29 Cal. 180 ; Bladen v. Plii)adelphia, value for the bonds does not create a debt, 
 60 Pa. St. 464, construing an act apply- whether the identical money received for 
 ing to the city to the effect that no debt the bonds could be recovered of the mu- 
 shall be binding unless authorized by law nicipality, the court left undecided. lb. 
 or ordinance, and a sufficient appropria- But see ante, sec. 125, note. In Mosher 
 tion therefor be made. v. School District, 44 Iowa, 122, 1876, the 
 
 2 Bank v. School District, 39 Iowa, doctrine of the preceding cases was ad- 
 490 ; French a. Burlington, 42 Iowa, 614, hered to, and the attempt of the legisla- 
 1876; Grant v. Davenport, 36 Iowa, 396, ture to give a remedy was held to be in- 
 1873 ; McPherson v. Foster, 43 Iowa, 48, effectual. 
 
 1876 ; Council Bluffs v. Stewart, 51 Iowa, 
 VOL. I. 11 
 
162 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VI. 
 
 ing five per cent of the taxable property within the corporation." 
 In such case it would not become indebted within the meaning 
 of the constitutional clause.' An act of the legislature prohibit- 
 
 1 Dively v. Cedar Falls, 27 Iowa, 227, 
 1869. A contract by the corporation to 
 pay for work when it shall be performed 
 in the future, does not constitute an in- 
 debtedness, within the meaning of this 
 provision of the constitution, until the 
 performance of the work. Ih. But quaire ? 
 See Davenport, etc. Gas Co. v. Daven- 
 port, 13 Iowa, 229. A similar provision 
 exists in the constitution of Illinois and 
 of some other states. The meaning and 
 •effect of the Iowa constitution quoted 
 above, were much discussed before the 
 Supreme Court of Iowa in a very recent 
 case, in whicli the question was, "Is a 
 city corporation liable to a bona fide holder, 
 upon its negotiable bonds issued for value, 
 when at the time of such issue the city 
 was indebted to the full extent of the 
 constitutional limit f " The cause was 
 settled before being decided, and no 
 opinions were filed ; but the judges dif- 
 fered in their judgment. In the Western 
 Jurist ( Vol. VI. p. 1, January, 1872) will 
 be found two able and interesting arti- 
 cles upon the question above stated, con- 
 taining tlie arguments upon both sides of 
 it, — the one being prepared, as it is un- 
 derstood, by Mr. Justice Beck, and the 
 other by Mr. Justice Cole, of the Supreme 
 ■Court of Iowa. The proposition upon 
 which tliey differ is whether the power 
 given to a city to issue its bonds abso- 
 lutely ceases, as to innocent holders, the . 
 moment the constitutional limit is reached, 
 the same as if it had never been conferred. 
 In view of the language " shall not be al- 
 lowed," the course of decision in the 
 United States Supreme Court, elsewhere 
 noticed, protecting the holders of this 
 class of securities, and the impractica- 
 bility, and even impossibility, of pur- 
 chasers ever to ascertain, at a given 
 moment, the amount of indebtedness of a 
 corporation, the author, while appreciat- 
 ing the difficulties of the question, is in- 
 clined to think that if the power to issue 
 negotiable securities be given, and the 
 inhabitants stand by and allow such 
 bonds to be issued, for value received, by 
 the corporation, and sold, that it should 
 
 be held liable thereon. If the bonds are 
 void, and the city has received value, it 
 would be liable to pay back what it had 
 received from innocent persons, or else 
 the provision of the constitution would 
 operate to ensnare and defraud those who 
 d^l with it ; and if thus liable, the con- 
 stitutional limit may be exceeded in this 
 way, as well as by sustaining the right to 
 recover on the bonds. 
 
 The foregoing observations in this 
 note, in respect of the rights of bona fide 
 liolders of municipal bonds, appeared as 
 they now stand in the second edition of this 
 work. Subsequently the Supreme Court 
 of the state decided that bonds issued in 
 excess of the constitutional limit were 
 void in the hands of innocent holders for 
 value ; and Mr. Justice Beck, delivering 
 the opinion of the court, criticises and 
 dissents from the author's views, and 
 denies any liability on the part of the mu- 
 nicipality, either on the bonds or in re- 
 spect of the value it received for them. 
 McPherson i. Foster, 4.3 Iowa, 48, 1876 
 It is not our purpose to enter upon the 
 discussion. In respect of the effect of 
 the over-issue, the soundness of the 
 author's view has since been sanctioned 
 in principle by the Supreme Court of the 
 United States in the Kansas over-issue 
 bond cases. See post, chapter on Con- 
 tracts. But if the bonds are void in the 
 hands of an innocent holder, can it be the 
 law that the city is not liable to repay to 
 the innocent purchaser of its void bonds 
 the amount of money it actually received 
 from him ? Does its liability depend 
 upon whether the identiral money received 
 still remains on hand f It seems to us 
 not. Artie, sec. 125, note. 
 
 The provision of the Iowa constitution, 
 above quoted, was expounded in the case 
 of Grant v. Davenport, 86 Iowa, 396, 
 1873, which involved the validity of a 
 contract by the city to supply itself with 
 water ; and it was held that where a con- 
 tract made by a municipal corporation 
 pertains to its ordinary expenses, and is, 
 together with other like expenses, within 
 the limit of its current revenues and such 
 
§ 136.] MUNICIPAL CHARTERS. 163 
 
 ing counties and cities from thereafter " contracting any debt or 
 pecuniary liability, without fully providing, in the ordinance 
 creating the debt, the means of paying the principal and interest 
 of the debt so contracted," does not extend to ordinary street 
 work, which forms part of the current expenses of the corpora- 
 tion, and which may be paid out of its current revenues.' 
 
 § 136. Under a constitutional provision in Illinois the Supreme 
 Court have established the doctrine that where the indebtedness 
 of a corporation has a limit (as five per cent of the assessed value 
 of the property within its limits for taxation), it is prohibited 
 from borrowing money and giving evidences of indebtedness therefor, 
 although taxes have been levied to meet their payment. Such 
 evidences are void. It cannot incur coi'porate indebtedness in 
 anticipation of the collection of taxes levied,^ and a warrant 
 drawn, payable only out of such taxes when levied imposes no 
 liability upon the city in whose behalf it is issued.^ Even for 
 meeting current expenses no city can anticipate the collection of 
 taxes for such purpose, unless the tax is actually levied. Such 
 warrants are mere assignments without recourse on the city. 
 
 special taxes as it may legally levy, and stitutional means are employed. Bur- 
 in good faith intends to levy therefor, lington Water Co. v. Wood?fard, 49 Iowa, 
 such contract does not constitute "the 58. 
 
 incurring of indebtedness " within the Tlie charter of the City of Portland, 
 meaning of the constitutional provision Oregon, prohibited the city from con- 
 limiting the power of municipal corpora- tracting an indebtedness exceeding $50,- 
 tions to contract debts. 000; and it was held by Judge Deadji 
 An ordinance authorizing a corporar that an ordinance assuming a liability of 
 tion to construct water-works within a city $350,000, to be paid in semi-annual in- 
 upon certain conditions prescribed, and stalments extending through twenty 
 providing that the city may, whenever its years, was in violation of the charter, and 
 financial condition will permit, purchase this, although the ordinance made pro- 
 and control them, is not an " incurring of visions for the payment of such instal- 
 tndeitetfness" within the constitutional pro- ments as they fell due, by the levy of 
 vision ; it is only assuming an obligation, taxes for that purpose. Coulson v. Port- 
 which, without further action on the part land, Deady, 481, 1868. 
 of the city, will ripen into a debt that is As to constitutional provision requiring 
 thus forbidden. The city may provide a the legislature to restrict the power of mu- 
 tax not exceeding five mills for the main- nicipalilies to levi/ taxes, borrow money, etc. 
 tenance of water-works, and a sinking see, ante, ch. iii. sec. 60. 
 fund to reduce the debt thereon. The ^ Reynolds v. Shreveport, 13 La. An. 
 fact that, by the levy of the tax, the city 326, 1868. 
 
 may in time become the owner of the ^ Fuller w. Chicago, 89 111. 282 ; Spring- 
 works does not render the ordinance field v. Edwards, 84 111. 626; Law v. Peo- 
 liable to the objection that it permits the pie, 87 111. 885. 
 city to do indirectly what it cannot do ' Fuller v. Heath, 89 111. 296. 
 directly, because none but legal and con- 
 
164 MUNICIPAL COKPOEATIONS. [CH. VI. 
 
 They are muniments of title without covenants on the part of 
 the city.^ 
 
 § 137. (89) A restrictive provision in a dty charter, that the 
 " council shall not create, or permit to accrue, any debts or liabili- 
 ties which shall exceed " a specified sum, unless a certain course 
 be pursued by the council and approved by a vote of the people, 
 has been considered to have no relation to liabilities arising ex 
 delicto, or to those which the law may cast upon the corporation, 
 and to apply, at most, only to contracts or liabilities voluntarily 
 created. The court, indeed, seems to consider the provision as 
 directory simply, and not as a limitation on the power of the coun- 
 cil to create debts.^ The provision in the constitution of Iowa 
 referred to in a preceding section, although it is construed by the 
 Supreme Court of the state to fix an absolute limit to the amount 
 of indebtedness which a municipality has the power to incur,* is 
 by the same court held to have no application to liabilities aris- 
 ing in tort; and it is, therefore, no defence in an action against 
 the municipality for damages caused by a defective street or side- 
 walk that it was indebted at the time of the accident up to or 
 beyond the constitutional limit.* A provision in a city charter 
 that the council shall not have power to pledge the credit of the 
 city for more than a specified sum without submitting the question 
 to the voters of the city was regarded as a definite restriction on 
 the power ; and hence a statute authorizing the city to issue 
 bonds to defray the expenses of building a bridge is subordinate 
 to, and does not override, the restriction in the charter.^ 
 
 § 138. (90) Constitutional limitations on state indebtedness 
 apply to the state alone, and not to her political and muni- 
 cipal subdivisions.® A legislative provision prohibiting the oiti/ 
 
 1 Fuller I). Heath, 89 111. 296; Law v. « Pattison v. Supervisors, 13 Cal. 175, 
 People, 87 111. 385. 1869; Cass v. Dillon, 2 Ohio St. 607, 
 
 2 McCrackeni). San Francisco, 16 Cal. 1858; Slack v. Bailroad Co.,18, B. Mon. 
 591,1860. 16; Clark v. Janesville, 10 Wis. 136; 
 
 8 French v. Burlington, 42 Iowa, 614, Prettyman «. Supervisors, 19 111. 406. A 
 
 1876 ; ante, sec. 185. constitutional provision that " the state 
 
 * Bartle v. Des Moines, 38 Iowa, 414, shall never be a party to carrying on any 
 
 1874 ; Rice v. Des Moines, 40 Iowa, 638, works of internal improvement " does 
 
 1875. not disable the legislature from authoriz- 
 
 s Cumberland v. Magrader, 34 Md. ing municipalities and counties to sub- 
 
 881, 1871. But see Butz v. Muscatine, 8 scribe for the stock of railway companies 
 
 Wall 575, 1869 ; post, sec. 162. and Issue their bonds to pay therefor. 
 
§ 139.] 
 
 MUNICIPAL CHARTERS. 
 
 165 
 
 authorities from incurring an indebtedness beyond a designated 
 amount does not apply to the legislature of the state ; and the 
 latter may, of course, by a subsequent act, authorize an increase 
 of the amount.' 
 
 Rewards for Offenders. 
 § 139. (91) The governing body of a municipal corporation 
 (which has express power to protect the property and promote 
 the welfare of its inhabitants) may, it has been held, offer a 
 reward for the detection of offenders against the general safety 
 of its people, as, for example, those guilty of the crime of arson 
 within the corporate limits.^ The contrary doctrine has also 
 been held.^ If made by the mayor, it may be ratified by the 
 city council subsequently, and is binding upon the city, though 
 not so ratified until after the performance of the service for 
 which the reward is claimed.* A promise to reward an officer 
 
 Commrs. ». Miller, 7 Kan. 479, 1871 ; s. c. 
 
 12 Am. Bep. 426. See People v. Su- 
 pervisors, 16 Mich. 254, and Mr. Jus- 
 tice Lowe's individual opinion — not the 
 court's — in State v. County of Wapello, 
 
 13 Iowa, 388,418-422; Dubuque County 
 o. Kailroad Co., 4 G. Greene (Iowa), 1; 
 Dean v. Madison, 7 Wis. 688. 
 
 1 Amey v. Allegheny City, 24 How. 
 (U. S ) 364, 1860. Construction of par- 
 ticular limitation. lb. See, on the gen- 
 eral subject, Wallace v. Mayor, 29 Cal. 
 180 ; Wyncoop v. Society, 10 Iowa, 185 ; 
 Rice V. Keokuk, Id Iowa, 679; Gibbon 
 t). Railroad Co., 36 Ala. 410; Foote v. Sa- 
 lem, 14 Allen, 487; Dunnovans. Green, 57 
 111. 63. 
 
 2 York V. Forscht, 23 Pa. St. 391, 1854; 
 Crawshaw v. Roxbury, 7 Gray, 374, 1856. 
 An offer for a reward is revocable at any 
 time before its terms have been complied 
 with, and may be revoked in the same 
 manner in which it was made, yet it is im- 
 material that the claimant of the reward 
 was ignorant of its withdrawal. Shuey v. 
 United Stotes, 92 U. S. 73, 1875. Such an 
 offer is not void for ambiguity, and entitles 
 a person to the reward who gives informa- 
 tion to the police oflScers of the city upon 
 which the incendiary is arrested, he being 
 afterwards convicted. 
 
 'The power of towns in Maine to offer 
 rewards denied. Gale ti. South Berwick, 
 61 Me. 174. See Lee v. Fleminsburg, 7 
 Dana, 59, and Loveland v. Detroit, 41 
 
 Mich. 367. In a late case in Iowa it is 
 held that " in the absence of express statutory 
 author itfi a city has no power to offer a reward 
 for the apprehension of criminals, such 
 power not being included in the general 
 authority given to the city council to pass 
 ordinances for the preservation of peace 
 and good order in the city." Hawk v. 
 Marion Co., 48 Iowa, 472 ; Hanger v. Des 
 Moines, Iowa, 1879 ; 8. c. 9 C. L. J. 478 S. 
 P. ; Patton «. Stephens, 14 Bush (Ky.), 324, 
 where the court say, " The power to pass 
 all needful by-laws and ordinances for the 
 due and effectual administration of jus- 
 tice in said citj'," and to " legislate upon 
 all subjects which the good government 
 of said city shall require," does not au- 
 thorize an appropriation of money to en- 
 force laws of the Commonwealth, wherein 
 every other community thereof has the 
 same interest. 
 
 * Crawshaw B. Roxbury, supra. Under 
 a statute authorizing the mayor and city 
 council of any city, or the selectmen of 
 any town, to offer and pay from the 
 treasury of such city or town a suitable 
 reward, not exceeding $300, for appre- 
 hending and securing a person charged 
 with a capital or other high crime, any 
 city or town may be bound by an offer 
 of a reward in such cases ; and any per- 
 son who performs the service, relying 
 upon such offer, may, in action of assxtmp- 
 sit, recover the amount offered of such 
 city or town. Janvrin v. Exeter, 48 N. H. 
 
166 
 
 MUNICIPAL COItPOKATIONS. 
 
 [CH. VI. 
 
 for doing that which, without such reward, it was his duty to 
 do, is void. Such a promise is, on general principles, without 
 consideration, if, indeed, it be not illegal.^ Therefore, a watch- 
 man of a city, who, while in the discharge of his duty as such, 
 discovers a person in the act of committing a crime, cannot re- 
 cover from the city a reward offered by it.^ 
 
 Public Buildings. 
 1 140. (92) Power to the officers, or to one of the departments 
 of a municipal corporation, to provide for repairs to public build- 
 ings, does not give authority to erect a new building, and certainly 
 not a large and expensive edifice.' But power to a municipal 
 corporation to build or repair carries with it the right to deter- 
 mine plan and mode.^ 
 
 Police Powers and Regulations. 
 § 141. (93) Many of the powers most generally exercised by 
 municipalities are derived from what is known as the police power 
 
 83. If two persons jointly perform the 
 service they must be joined as plaintiffs. 
 lb. Kequisites of declaration where re- 
 ward is offered by a town, see Codding v. 
 Mansfield, 7 Gray, 272. In order to re- 
 cover the reward the plaintiff must in gen- 
 eral prove performance according to the terms 
 of the advertisement. See Neville v. Kelly, 
 12 C. B. N. S. 740 ; Smith v. Moore, 1 C. 
 B. 438 ; Thatcher v. England, 3 C. B. 254 ; 
 England v. Davidson, 11 A. & E. 856 ; 
 Lancaster ». Walsh, 4 M. & W. 16 ; Fal- 
 lick V. Barber, 1 M. & S. 108 ; Williams v. 
 Carwardine, 4 B. & Ad. 621 ; Tarner «. 
 Walker, L. E. 1 Q. B. 641; S. C. L. E. 2 
 Q. B. 301.' 
 
 1 Stotesbury v. Smith, 2 Burr. 924; 
 Harris v. Watson, Feake, 72; 3 Kent 
 Com. 185 ; Harris v. Watson, Feake, 72 ; 
 Stilk V. Myrick, 2 Campb. 317 ; Bridge v. 
 Cage, Cro. Jac. 103. See chapter on 
 Corporate Officers, poa, sees. 283, 234. 
 
 2 Fool V. Boston, 5 Cusli. 219, 1849; 
 Gilmore .w. Lewis, 12 Ohio, 281 ; Means v. 
 Hendershott, 24 Iowa, 78 ; ch. ix. post. 
 
 ' Feterson v. Mayor, etc., 17 N. Y. 
 449, 455, per Denio, 3. Contract between 
 city and county in respect to public build- 
 ings. Bergen v. Clarkson, 1 Halst. (N. J.) 
 352, 1796 ; De Witt e. San Francisco, 2 
 Cal. 289, 1852. 
 
 * Ely V. Eochester, 26 Barb. 183, 1837. 
 
 As to power to build town-house. French 
 V. Quincy, 3 Allen, 9. Incidental power 
 to provide suitable accommodations for 
 the transaction of the business of the cor- 
 poration. Feople V. Harris, 4 Cal. 9 ; see 
 Vanover v. Davis, 27 Ga. 354; chapter 
 on Corporate Froperty, post. Council 
 have power to fit up and furnish the room 
 in which they meet, and the court refused 
 to enjoin them from furnishing the council 
 chamber with portraits of the governors 
 of the state. Beynolds v. Mayor of Al- 
 bany, 8 Barb. 597; People v. Harris, 4 
 Cal. 9; but see Hodges v. Buffalo, 2 
 Denio, 110 ; Stetson v. Kempton, 13 Mass. 
 272, 1816, per Parker, C. J. Proper uses 
 of public buildings. Scofield v. School 
 District, 27 Conn. 499 ; French v. Quincy, 
 3 Allen, 9. Market Bouses, post, sees. 
 880-385, 562, 648. 
 
 In organizing a county the legislature 
 may delegate the authority to locate the 
 county seat to the county commissioners. 
 Eice V. Shuey, 5 N. W. E. 435. But the 
 county seat cannot be changed at the 
 will of the county board after they have 
 canvassed the vote and located it in ac- 
 cordance with the result. Feople v. Ben- 
 zie Co., 41 Mich. 6 ; Attorney General v. 
 Lake Co., 83 Mich. 289 ; Attorney General 
 V. Benzie, 34 Mich. 211. 
 
§ 141.] MUNICIPAL CHAETKKS. 167 
 
 of the state,^ and are delegated to them to be exercised for the 
 public good. Of this nature is the authority to suppress nuisances, 
 preserve health, prevent fires, to regulate the use and storing of 
 dangerous articles, to establish and control markets, and the like. 
 These and other similar topics will be considered in appropriate 
 places. But it may here be observed that every citizen holds his 
 property subject to the proper exercise of this power, either by 
 the state legislature directly, or bj'^ public corporations to which 
 the legislature may delegate it. Laws and ordinances relating to 
 the comfort, health, convenience, good order, and general welfare 
 of the inhabitants are comprehensively styled, " Police Laws or 
 Regulations." And it is well settled that laws and regulations 
 of this character, though they may disturb the enjoyment of in- 
 dividual rights, are not unconstitutional, though no provision is 
 made for compensation for such disturbances. They do not ap- 
 propriate private property for public use, but simply regulate its 
 use and enjoyment by the owner. If he suffers injury, it is either 
 damnum absque injuria, or, in the theory of the law, he is com- 
 pensated for it by sharing iu the general benefits which the regu- 
 lations are intended and calculated to secure. The citizen owns 
 his property absolutely, it is true ; it cannot be taken from him 
 for any private use whatever, without his consent, nor for any 
 public use without compensation , still he owns it subject to this 
 restriction, namely: that it must be so used as not to injure 
 others, and that the sovereign authority may, by police regula- 
 tions, so direct the use of it that it shall not prove pernicious to 
 his neighbors, or the citizens generally. These regulations rest 
 upon the maxim, Salus populi suprema est lex. This power, to 
 restrain a private, injurious use of property, is very different from 
 the right of. eminent domain. It is not a taking of private prop- 
 erty for public use, but a salutary restraint on a noxious use by 
 the owner, contrary to the maxim, Sic utere tuo vt alienum non 
 Icedas? 
 
 1 The power of a corporation to exer- principle upon whicli police laws rest is 
 
 cise poZJceyunsdtoioB is a power delegated very satisfactorily discussed by Wood- 
 
 by tiie State. Cranston t>. Augusta, 61 worth, J.) ; Commonwealth v. Alger, 7 
 
 Ga. 572. Gush. 63, 84 (valuable opinion by Shaw, 
 
 " Baker v. Boston, 12 Pick. 184, 1831 C. J.) ; Fisher v. McGirr, 1 Gray, 1 ; Com- 
 
 ( as to nuisances) ; Wadleigh v. Gillman, monwealth o. Tewksbury, 11 Met. 55; 
 
 12 Me. 403 (as to wooden buildings); Salem v. Eastern Railroad, 98 Mass. 431 ; 
 
 Vanderbilt v. Adams, 7 Cow. 139 (as to Watertown v. Mayo, 109 Mass. 315 ; 
 
 harbor regulations, where the general Dingley ». Boston, 100 Mass. 544 ; Cobb 
 
168 
 
 MUNICIPAL COEPOKATIONS. 
 
 [CH. Vt 
 
 § 142. All-embracing and penetrating as the police power of 
 the state is, and of necessity must be, it is nevertheless subject, 
 like all other legislative powers, to the paramount authority of 
 the state and the Federal Constitution. A right conferred or pro- 
 tected by the Constitution cannot be overthrown or impaired by 
 any authority derived from the police power. Thus the police 
 power of the state must be exercised in subordination to the 
 Federal Constitution, and cannot extend, as was held by the 
 
 V. Boston, 112 Mass. 181 ; Bancroft v. 
 Cambridge, 126 Mass. 438 ; Welch v. Bos- 
 ton, 126 Mass. 442 ; Little Rock v. Barton, 
 88 Ark. 436, citing and approving text. 
 Coates V. Mayor, etc. of New York, 7 
 Cow. 686, 1826 (as to ordinance pro- 
 hibiting the interment of the dead within 
 the city) ; Goszler i>. Georgetown, 6 
 Wheat. 693 (as to power to grade). 
 
 In the case of the Boston Beer Co. v. 
 Massachusetts, 97 U. S. 26, 1877, Mr. 
 Justice Bradley, speaking tor the court, 
 said : " Whatever differences of opinion 
 may exist as to the extent and boundaries 
 of the police power, and however difficult it 
 may be to render a satisfactory definition 
 of it, there seems to be no doubt that it 
 does extend to the protection of the 
 lives, health, and property of the citi- 
 zens and to the preservation of good 
 order and the public morals." See also 
 Fertilizing Co. o. Hyde Park (village 
 of), 98 U. S. 659, 1878. In the last case 
 Mr. Justice Swayne says : " Perhaps the 
 most striking application of the police 
 power is in the destruction of buildings to 
 prevent the spread of a conflagration. 
 This right existed by the common law, 
 and the owner was entitled to no com- 
 pensation. 2 Kent's Com. 339 (marg. 
 paging), and notes 1 and a and b." Post, 
 ch. xxiii. 
 
 It is held that under the police power 
 of the state the duty of paving and repair- 
 ing a sidewalk in front of a house may be 
 imposed on the owner. Macon v. Patty, 
 9 Reporter, 613. 
 
 It is within the police power of the 
 state to authorize the channel of a river to 
 be turned or straightened, in order to pro- 
 tect from threatened inundation a popu- 
 lous portion of the state, and such work 
 is of a public character. Green v. Swift, 
 47 Cal. 636, 1874. In such case, the au- 
 thority of the state is none the less in 
 
 degree, even if the inhabitants of the dis- 
 trict to be protected did not constitute a 
 body politic. lb. 
 
 Speaking of turnpike acts, paving 
 acts, etc.. Lord Kenyan, in the case of 
 the Governor, etc. v. Meredith, 4 Term 
 Rep. 790, 796, says: "Some individuals 
 suffer an inconvenience under all these 
 acts of parliament; but the interests of 
 individuals must give way to the accom- 
 modation of the public." And per Buller, 
 J., in same case : " There are many cases 
 in which individuals sustain an injury, 
 for which the law gives no action; for 
 instance, pulling down houses, or raising 
 bulwarks, for the preservation and de- 
 fence of the kingdom against the king's 
 enemies." But " the law will not allow 
 the right of property to be invaded, under 
 the guise of a police regulation for the 
 preservation of health, when it is manifest 
 that such is not the object and purpose of 
 the regulation." Per Wilde, J,, in Austin 
 V. Murray, 16 Pick. 126 ; Green ». Savan- 
 nah, 6 Ga. 1, 1849 ; People v. Hawley, 3 
 Mich. 830; Ames v. County, 11 Mich. 
 139. The extent of the police power will 
 be further discussed in the chapter on 
 Ordinances, post. See, also, Cooley Const. 
 Lim. 572-594. How far and when cities, 
 in executing police duties, are agents of 
 the state, and not of the municipality. Se6 
 Buttrick v. Lowell, 1 Allen (Mass.), 172; 
 Mitchell V. Rockland, 51 Me. 118, 122; 
 52 Me. 118; Brown w.Vinalhaven, 65 Me. 
 402, 1876 ; Keller i>. Corpus Christi, 50 
 Tex. 614, approving text; State v. St. 
 Louis Court, 34 Mo. 546 ; White v. Kent, 
 
 11 Ohio St. 550; Thomas v. Ashland, 
 
 12 lb. 127; City Council v. Payne, 2 
 Nott & MoCord (South Car.), 476; Peo- 
 ple V. Huribut, 24 Mich. 44, 1871 ; B. c. 
 9 Am. Rep. 103; ante, sec. 60; post, 
 sees. 253, 893, 396, 768. 
 
§ 142.] MUNICIPAL OHAKTEKS. 169 
 
 Supreme Court of the United States, in respect of state laws for- 
 bidding the transportation of Texas cattle, to inter-state transpor- 
 tation of the subjects of commerce.^ In a subsequent case^ the 
 rights claimed by a private corporation, chartered by an act of the 
 legislature, and authorized by its charter to establish and carry on 
 a business which was intrinsically and unavoidably a nuisance to 
 the inhabitants in the neighborhood,^ came in conflict with the 
 police power of the state, subsequently delegated to a munici- 
 pality within whose limits the offensive and unhealthy business 
 of the private corporation was conducted. The subject was 
 thoroughly considered. The court did not deny that by a spe- 
 cific contract the legislature might surrender for a limited period 
 the right to interfere with a business which was a positive nui- 
 sance. On the ground, however, that the private corporation, 
 when its charter was tested by the principles of strict construc- 
 tion applicable to such grants, had no specific legislative authority 
 to maintain its works on the site where they were established, if 
 not, indeed, on the broader ground that all legislative charters to 
 private corporations are subordinate to the police power in all 
 cases whatsoever, or, at all events, in all cases except where it is 
 otherwise provided by the express terms of the contract, or by 
 what is necessarily implied, the municipal ordinances to abate the 
 nuisance were sustained, although the corporation had erected 
 
 1 Railroad Co. v. Husen, 95 U. S. 465, lutely prohibiting the transportation of 
 1877. offal through the village. Tlie majority 
 
 2 Fertilizing Co. v. Hyde Park (vil- opinion sustaining the ordinance is based 
 lage of), 98 U. S. 659, 1878. upon two propositions : 1. That the 
 
 8 The Fertilizing Company obtained chartered rights of the Fertilizing Com- 
 
 by its charter f rorti the state ( which was pany were subject to the police power of 
 
 a legislative contract), for the period of the state, which was delegated to the mu- 
 
 fifty years, three rights, among others : nicipal authorities. 2. The charter of the 
 
 one a right to establish and maintain at a company is not a contract guaranteeing 
 
 place in Cook County, south of the divid- in the locality originally selected, exemption 
 
 ing-iine between townships thirty-seven for fifty years from the exercise of the 
 
 and thirty-eight, works for converting police power of the state, however serious 
 
 offal and animal matter ; and the works the nuisance might become in the future, 
 
 have been established there at a cost of by reason of the growth of population 
 
 more than two hundred thousand dollars ; around it. Mr. Justice Miller limited his 
 
 second, they obtained the right to estab- judgment to a concurrence on the second 
 
 lish receiving depots for receiving and point and denied the first. Strong, J., 
 
 carrying such matter from Chicago ; and dissented. Field, J., did not sit. Critically 
 
 third, they obtained the right to carry viewed, the case is perhaps only an au- 
 
 such matter from their receiving depots thoritative decision on the second ground, 
 
 to their converting works in Hyde Park, since it is relied on in both concurring 
 
 Under legislative authority subsequently opinions, and is amply sufficient to sus- 
 
 conferred upon it, the municipality of tain the judgment which affirmed that of 
 
 Hyde Park passed an ordinance abso- the Supreme Court of Illinois. 
 
170 
 
 MUNICIPAL COKPOKATIONS. 
 
 [CH.-VI. 
 
 expensive works and although the effect of enforcing the or- 
 dinance would be to prevent the further carrying on of the 
 business in that locality. Similar results in favor of the police 
 power as against alleged vested rights under charters have been 
 reached in other cases.^ 
 
 ^ Coates V. Mayor, etc. of New York, 
 7 Cow. 585, 1826, referred to in the case 
 of the Fertilizing Co. v. Hyde Park, supra, 
 and thus stated by Swayne, J. : In Coates 
 V. The Mayor, etc. of New York, 7 Cow. 
 585, a law was enacted by the legislature 
 of the state, on the 9th of March, 1813, 
 which gave to the city government power 
 to pass ordinances regulating, and if nec- 
 essary preventing, the interment of dead 
 bodies within the city ; and a penalty of 
 $250 was authorized to be imposed for 
 the violation of the prohibition. On the 
 7th of October, 1823, an ordinance was 
 adopted forbidding interments or the de- 
 positing of dead bodies in vaults in the 
 city south of a designated line. A penalty 
 was prescribed for its violation. The 
 action was brought to recover the penalty 
 for depositing a dead body in a vault in 
 Trinity church-yard. A plea was inter- 
 posed setting forth that the locus in quo 
 was granted by the King of Great Britain 
 on the 6th of May, 1697, to a corporation 
 by the name of the " Rector and Inhabi- 
 tants of the .City of New York in Com- 
 munion with the Protestant Episcopal 
 Church of England," and their successors 
 forever, as and for a church-yard and bury- 
 ing place, with the rights, fees, etc. ; that 
 immediately after the grant the land was 
 appropriated and thenceforward was used 
 as and for a cemetery for the interment 
 of dead bodies ; that the rector and war- 
 dens of Trinity Church were the same 
 corporation, and that the body in question 
 was deposited in the vault in the church- 
 yard by the license of that corporation. 
 A general demurrer was filed, and the 
 case was elaborately argued. The validity 
 of the ordinance was sustained. The 
 court held that " the act under which it 
 was passed was not unconstitutional, 
 either as impairing the obligation of con- 
 tracts, or taking property for public use 
 without compensation, but stands on the 
 police power to make regulations in re- 
 spect to nuisances." It was said : " Every 
 right, from absolute ownership in prop- 
 erty down to a mere easement, is pur- 
 
 chased and holden subject to the restric- 
 tion that it shall be so exercised as not to 
 injure others. Though at the time it be 
 remote and inoffensive, the purchaser is 
 bound to know at his peril that it may 
 become otherwise by the residence of 
 many people in its vicinity, and that it 
 must yield to by-laws and other regular 
 remedies for the suppression of nui- 
 sances." In such cases prescription, what- 
 ever the length of time, has no applica- 
 tion. Every day's continuance is a new 
 offence, and it is no justification that the 
 party complaining came voluntarily with- 
 in its reach, f ure air and the comforta- 
 ble enjoyment of property are as much 
 rights belonging to it as the right of pos- 
 session and occupancy. If population, 
 where there was none before, approaches 
 a nuisance, it is the duty of those liable 
 at once to put an end to it. Brady v. 
 Weeks, 3 Barb. (N. Y.) 157. Post, sec. 372. 
 So in the case of the Boston Beer Com- 
 pany, where the legislature of Massachu- 
 setts on the 1st of February, 1827, incor- 
 porated the "Boston Beer Company," 
 "for the purpose of manufacturing malt 
 liquors in all their varieties in the city of 
 Boston," etc. By an act of June, 1869, 
 the manufacture of malt liquors to be 
 sold in Massachusetts, and brewing and 
 keeping them for sale, were prohibited 
 under penalties of fine and imprisonment 
 and the forfeiture of the liquors to the 
 commonwealth. In the Boston Beer Co. 
 V. The Commonwealth, the Supreme 
 Court of Massachusetts held that "the 
 act of 1869 did not impair the obUgations 
 of the contract contained in the charter 
 of the claimant, so far as it relates to the 
 sale of malt liquors, but is binding on 
 the claimant to the same extent as on 
 individuals. The act is in the nature 
 of a police regulation in regard to the 
 sale of a certain article of property, and 
 is applicable to the sate of such property 
 by individuals and corporations, even 
 where the charter of the corporation can- 
 not be altered or repealed by the legis- 
 lature.'' This judgment was affirmed by 
 
§ 144.] 
 
 MUNICIPAL CHARTERS. 
 
 171 
 
 Prevention of Fires. 
 
 § 143. (94) The prevention of damage by fire is usually an 
 object within the scope of municipal authority, either by express 
 grant or by the power, in a chartered town or city , to make po- 
 lice regulations or needful by-laws, and for this purpose it may 
 regulate the mode and removal of ashes.^ And where the town 
 or municipal body has such power, it is authorized to appropriate 
 money for the purchase of engines, or for the lepair thereof, if to 
 be used for the purpose of extinguishing fires therein ; and this, 
 whether they belong to the corporation or were purchased by 
 private subscription.^ And money may also be appropriated for 
 the benefit of engine and hook and ladder companies therein.^ 
 
 Quarantine and Health. 
 § 144. (95) The preservation of the public health and safety 
 is often made a matter of municipal duty, and it is competent 
 
 the Supreme Court of the United States. 
 97 TJ. S. 25. 
 
 The question whether certain require- 
 ments are a part of a system of police 
 regulation adapted to aid in the protec- 
 tion of life and health, is properly one of 
 legislative determination, and a court 
 should not lightly interfere with such de- 
 termination, unless the legislature has 
 manifestly transcended its province. Dan- 
 iels «. Hilgard, 77 111. 640, 1876. 
 
 1 Many fires are said to be " acciden- 
 tal" which are the result of neglect to 
 keep ashes in fire-proof utensils; and yet 
 regulations for the safe keeping of ashes 
 are seldom made, and when made, rarely 
 enforced. Filbey v. Combe, 2 M. & W. 
 677 ; Low v. Dodd, 1 Ex. 845 ; Lynden v. 
 Stanbridge, 2 H. & N. 45. See further. 
 The Queen v. Wood, 5 E. & B. 49 ; Guar- 
 dians of Holborn Union v. Vestry of St. 
 Leonard, Shoreditch, L. R., 2 Q. B. Div. 
 145 ; Gay i>. Cadby, L. R. 2 C. P. Div. 
 391 ; Harrison's Munic. Manual, 4th ed. 
 
 2 Allen V. Taunton, 19 Pick. 485, 1837 ; 
 Huneman v. Fire District, 37 Vt. 40; 
 Robinson v. St. Louis, 28 Mo. 488 (repair 
 of engine-house) ; Wadleigh v. Gillman, 
 12 Me. 403; Vanderbilt v. Adams, 7 
 Cow. 349, 352 ; past, sees. 405, 572 n., 
 690, ch. xxiii. Text approved. Green v. 
 Cape May, 41 N. J. L. 45. 
 
 » Van Sicklen v. Burlington, 27 Vt. 
 
 (1 Wms.) 70, 1854. Approving, Allen 
 V. Taunton, supra. See post, chapter on 
 Ordinances. Power of council over fire 
 companies, and to appoint officers there- 
 for. See Miller v. Savannah Fire Co., 26 
 Ga. 678. 
 
 The protection of all the buildings in 
 a city or town from destruction or injury 
 by fire is for the benefit of all the inhab- 
 itants, and for their relief from a common 
 danger ; and cities and towns are there- 
 fore authorized by general law in Massa- 
 chusetts to provide and maintain fire 
 engines, reservoirs, and hydrants to sup- 
 ply water for the extinguishment of fires. 
 Allen V. Taunton, 19 Pick. 485; Hardy v. 
 Waltham, 3 Met. 163 ; Fisher v. Boston, 
 104 Mass. 87 ; Tainter v. Worcester, 123 
 Mass. 311. The question whether and 
 where public hydrants should be erected 
 is within the exclusive control of the 
 municipal authorities, as the public in- 
 terests may seem from time to time to 
 require ; and such municipality does not 
 assume any liability to the owners of 
 property to furnish means of extinguish- 
 ment of fires upon which an action can 
 be maintained. Grant v. Erie, 69 Pa. 
 420 ; Wheeler v. Cincinnati, 19 Ohio St. 
 19; Brinkmeyer v. Evansville, 29 Ind. 
 187 ; Fisher v. Boston, 104 Mass. 87 ; HiU 
 V. Boston, 122 Mass. 344 ; post, ch. xxlii. 
 
172 MUNICIPAL COKPOEATIONS. [CH. VI. 
 
 for the legislature to delegate to municipalities the power to 
 regulate, restrain, and even "suppress, particular branches of 
 business, if deemed necessary for the public good.^ The sub- 
 ject will be considered more in detail in the chapter on Ordi- 
 nances. The general nature and scope of the authority, as it is 
 not unfrequently bestowed, are well, illustrated by a case in 
 Maryland. By its charter the city of Baltimore was vested with 
 " full power and authority to enact all ordinances necessary to 
 preserve the health of the city, prevent and remove nuisances, 
 and to prevent the introduction of contagious diseases within the 
 city and within three miles of the same." Commenting on this 
 provision of the charter, the Court of Appeals say : " The 
 transfer of this salutary and essential power is given in terms as 
 explict and comprehensive as could have been used for such a 
 purpose. To accomplish, within the specified territorial limits, 
 the objects enumerated, the corporate authorities were clothed 
 with all the legislative powers which the general assembly could 
 have exercised. Of the degree of necessity for such municipal 
 legislation, the Mayor and City Council of Baltimore were the 
 exclusive judges. To their sound discretion is committed the 
 selection of the means and manner (contributory to the end) of 
 exercising the powers which they might deem requisite to the 
 accomplishment of the objects of which they were made the 
 guardians. ' To prevent the introduction of contagious diseases 
 within the city, and within three miles of the same,' they might 
 impose heavy penalties on the captain, owner, or consignee of 
 any ship or other vessel entering the port of Baltimore, on 
 board of which small-pox or other contagious diseases might pre- 
 vail, or they might seek the accomplishment of their object by 
 causing the vessel and all persons to be taken possession of and 
 controlled until their purification and disinfection were effected, 
 and impose on the captain, owner, or consignee, the payment or 
 reimbursement of all the expenses incurred by such proceedings ; 
 or they might adopt, at the same time, both suggested remedies, 
 if for the successful and faithful execution of their powers they 
 deemed it necessary to do so." ^ 
 
 § 145. (96) And it was held that, under this authority, it was 
 
 1 Shrader, in re, 33 Cal. 279, 1867; Cal. 242, 1872; posi, sees. 869, 371, 372, 
 
 Ashbrook v. Commonwealth, 1 Bush ch. xxiii. 
 
 (Ky.), 139, 1866 ; Tucker v. Virginia City, ^ Harrison v. Baltimore, 1 Gill (Md.), 
 
 4 Nev. 20 ; Johnson v. Simonton, 48 264, 1843 ; ante, sec. 94. 
 
§ 146.] MUNICIPAL CHARTERS. 173 
 
 competent for the city to pass an ordinance providing for the 
 appointment of a " health officer," prescribing his duties and 
 powers ; and that the city might recover from the consignee of 
 a vessel, and was not confined to the charterer, the expenses 
 incurred by it in disinfecting and purifying the vessel, persons, 
 and baggage on board of her at the time of her arrival from the 
 infection of the small-pox. Respecting the extent of liability, 
 the court decided that the defendant was not entitled to an 
 instruction that the recovery must be limited to the amount of 
 expenses absolutely necessary to preserve the health of the city, 
 or to prevent the introduction of the small-pox. On this point 
 the court expressed its judgment to be that, " if the health offi- 
 cer " (on whom the duty of disinfecting the vessel was imposed 
 by ordinance), in causing expenses, "acted bona fide, within the 
 limits of a sound discretion, and with reasonable skill and judg- 
 ment, in the discharge of his official duties, the reasonable ex- 
 penses thus incurred must be paid." Concerning the power of 
 the corporation over the persons on board of an infected vessel, 
 the court was of opinion that it was competent for the health 
 officer to be authorized by ordinance to send persons laboring 
 under infectious disease to the hospital, and also those on board 
 of the vessel liable to be affected by the disease, if, in his opinion, 
 such a course be necessary to prevent the spread of disease ; and 
 the owner, master, or consignee may be liable for expenses thus 
 incurred, if the health officer acts with reasonable skill and judg- 
 ment, and exercises a sound and honest discretion.' 
 
 § 146. (97) A city having power to pass ordinances respecting 
 the police of the place, and to preserve health, is authorized, as a 
 sanitary and police regulation, to contract to procure a supply of 
 water, by boring an artesian well, or otherwise, on the public 
 square, and is the judge of the mode best adapted to accomplish 
 the object.^ 
 
 1 Harrison v. Baltimore, 1 Gill (Md.), course, distant from the city, to supply 
 
 264, 1843. its inhabitants with water, has no right 
 
 ' Livingston v. Pippin, 31 Ala. 542, (unless acquired by purchase or by the 
 
 1868 ; Indianapolis v. Indianapolis Gas exercise of the right of eminent domain) 
 
 Co., 66 Ind. 396, approving text ; ante, to divert water to the injury of other 
 
 sec. 94. As to water- works, Rome v. riparian proprietors. Stein v. Burden, 24 
 
 Cabot, 28 Ga. 50 ; Hale v. Houghton, 8 Ala. 130, 1854 ; Fleming's Appeal, 65 Pa. 
 
 Mich. 458 ; post, sec. 443. A municipal St. 444. As against the owner of the^ 
 
 corporation owning lands on a water- abutting on a highway the selectmen of 
 
174 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VI. 
 
 Indemnifying Officers. 
 
 § 147. (98) Where a municipal corporation has no interest in 
 the event of a suit, or in the question involved in the case, and 
 the judgment therein can in no way affect the corporate rights or 
 corporate property, it cannot assume the defence of the suit, or 
 appropriate its money to pay the judgment therein ; and warrants 
 or orders based upon such a consideration are void.^ But a 
 municipal corporation has power to indemnify its officers against 
 liability which they may incur in the bona fide discharge of their 
 duties, although the result may show that the officers have ex- 
 ceeded their legal authority .^ Thus, it may vote to defend suits 
 
 a town have a right to drain a spring on 
 the owner's side of such road and dispose 
 of the water in such mode as to pro- 
 tect the liighway from overflow ; but if 
 they divert the water for any other pur- 
 pose, tliey act individually, and not for the 
 public good, and as against the owner 
 have no capacity to act at all. SafSeld 
 V. Hathaway, 44 Conn. 521 ; ante, sec. 30 ; 
 post, ch. xxiii. Power to purchase site 
 for water-works. People v. McClintock, 
 45 Cal. 11, 1872 ; post, sees. 561, 562. Reg- 
 ulations of water supply. Post, sec. 320. 
 
 1 Halstcad o. Mayor, etc., of N. Y., 3 
 Comst. (3 N. Y.) 430, 1850, affirming s. c. 
 5 Barb. 218, and deciding that corporate 
 funds cannot be appropriated to pay pen- 
 alties personally incurred by officers for 
 refusing to discharge their official duties ; 
 refer to, in explanation, Morris v. The 
 People, 3 Denio, 381. And see, also. 
 People o. Lawrence. 6 Hill, 244, holding 
 that the supervisors of a county had no 
 right to appropriate money to defray the 
 costs of a justice of the peace who had 
 been prosecuted for official misconduct 
 and acquitted ; recognized in Bank v. Su- 
 pervisors, 5 Denio, 517, 521. Same prin- 
 ciple, Merrill v. Plainfield, 45 N. H. 126. 
 
 The common council of a city in Con- 
 necticut, under authority of the city char- 
 ter, enacted a by-law with respect to 
 wharves, and the anchoring, moving, and 
 mooring of vessels in the harbor, and 
 appointed a superintendent of wharves, 
 to discharge the duties provided for in the 
 by-law; the performance of his duties 
 was not enforced by a penalty, and he 
 acted only upon application of parties in- 
 
 terested, and at their expense. In the 
 discharge of his duties, and while acting 
 in good faith, he ordered a vessel lying 
 at a wharf to be hauled astern to make 
 more room for another at an adjoining 
 wharf, and was sued by the owner of the 
 wharf for damages. It was held that 
 the city could not legally indemnify him 
 for the expenses incurred by him in de- 
 fending against the suit. Gregory v. 
 Bridgeport, 41 Conn. 76, 87, 1874; s. c. 
 19 Am. Rep. 485, where Phelps, J., cites 
 and follows the text, and refers to other 
 cases to the same point. In Canada it is 
 held that a municipal corporation cannot 
 pass a by-law to pay the costs of a contested 
 election to a muniripal office, nor indemnify 
 one of ike parties to such a contest. Bell, 
 in re, 2 Upper Can. Com. Pleas Rep. 507 ; 
 8. c. 3 lb. 400. 
 
 ^ Pike V. Middleton (indemnifying tax 
 collector), 12 N. H. 278, 1841 ; Fuller v. 
 Groton, 14 Gray, 840; Sherman v. Carr 
 (indemnifying executive officer), 8 R. I. 
 481, 1867 ; Briggs v. Whipple, 6 Vt. 95, 
 1834; Bancroft v. Lynnfield, 18 Pick. 
 566, 1836 ; Nelson </. Milford, 7 Pick. 18, 
 26, 1828 ; Babbitt v. Savoy, 3 Cush. 530, 
 1849 ; Hasdell v. Hancock, 8 Gray, 526, 
 1853 ; State v. Hammonton, 9 Vroom 
 (38 N. .T. L.), 430, 1876 ; s. o. 20 Am. Rep. 
 404, where many of the cases are referred 
 to by Dixon, J. Lewis v. Rochester, 9 
 C. B. (N. S.) 401 ; Queen v. Litchfield, 4 
 Ad. & E. (N. S ) 897 ; Attorney General 
 V. Norwich, 2 Mylne & Cr. 406. In Page v. 
 Prankford, 9 Greenl. (Me.) 155, this was 
 left an open question. 
 
§ 148.] 
 
 MUNICIPAL CHARTERS. 
 
 175 
 
 brought against its officers for acts done in good faith in the 
 exercise of their office.^ So, if a public corporation is charged 
 with the duty of repairing highways, and is made liable for de- 
 fects therein, it has the incidental power to indemnify an officer 
 who digs a ditch for the purpose of raising a legal question as to 
 the bounds of the highway .^ 
 
 § 148. (99) So, a vote by a town to refund money paid by 
 assessors on an illegal assessment of a town tax made by them 
 is an express promise, founded upon a meritorious and legal con- 
 sideration, and is irrevocably binding upon the town. And this, 
 although, without such vote, the town could not have been com- 
 pelled to refund or indemnify the assessors. But such a vote, by 
 a town, would be without consideration in respect to state and 
 county taxes.* So, if the town is not concerned, having nothing 
 to lose or gain in the result of the litigation, a vote to indemnify 
 an officer would be in excess of its power,, and void ; * but it 
 would be otherwise if the suit against the officer was in respect 
 to matters in which the corporation was interested.® 
 
 ' lb. Baker v. Windham, 13 Me. 
 (X Shep.) 74, 1836. 
 
 2 Bancroft v. Lynnfield, supra. 
 
 8 Nelson v. Milford, 7 Pick. 18, 1828. 
 A separate action, on such a vote, lies 
 against the town in favor of each assessor 
 for his share, which does not include, 
 however, his own tax, paid by him vol- 
 untarily. Jb. 
 
 * Vincent v. Nantucket, 12 Cush. 105, 
 1853; Gregory v. Bridgeport, 41 Conn. 
 76, 1874. "A promise to indemnify a 
 tax collector if he would collect, by pre- 
 tence of his ofScial authority, a tax which 
 lie knew was illegal, would be an agree- 
 ment to violate the law, and could not be 
 enforced." Pike ». Middleton, 12 N. H. 
 281, per Gilchrist, 3. Selectmen, under 
 their authority " to order and manage all 
 of the prudential aiTairs of the town," 
 . may bind the town thus to indemnify its 
 officers. 12 N. H. 281, supra; ante, see. 
 30, and notes. 
 
 s Briggs V. Whipple, 6 Vt. 95, 1834. 
 A by-law declaring that the officers of 
 the corporation shall be indemnified for 
 all lawful acts done in an official cajpacity 
 is not illegal. Irwin v. Mariposa, 22 Up- 
 per Can. C. P. 367. 
 
 An indemnity to an officer for lawful 
 
 acts gives him no claim for compensation 
 against the consequences of unlawful acts. 
 Irwin V. Mariposa, 22 Upper Can. C. V. 307. 
 By-law to indemnify a councillor for the 
 costs of a contested election would be ille- 
 gal. Bell and Manvers, in re, 2 Upper Can. 
 C. P. 507, 3 lb. 400. In England an agree- 
 ment by a corporation with one of its offi- 
 cers for an increase of the salary of an office 
 retained by him as compensation for the 
 loss of an office of which he was deprived, 
 is not binding unless under the seal of the 
 corporation. The Queen v. Stamford, 6 Q. 
 B. 4.33; see also Cope v. Thames, etc.. 
 Dock and Railroad Co., 3 Ex. 841. So 
 the appointment of a corporation solicitor 
 should be regularly under the corporation 
 seal. Arnold v. Poole, 4 M. & G. 860. A 
 town clerk, if a solicitor, may have a lien 
 on papers of the corporation, with respect 
 to which he has done work as an attorney 
 or solicitor. The King v. Sankey, 5 A. 
 & E. 423. But qucere in this country. 
 
 Where persons entrusted with the 
 administration of a fund have incurred 
 legitimate and proper expenses thrown 
 upon them by their fiduciary situation 
 they have a right to reimburse them- 
 selves out of the funds. See The King v. 
 The Inhabitants of Essex, 4 T. R. 591 ; 
 
176 MUNICIPAL CORPORATIONS. [CH. VI. 
 
 Furnishing Entertainments. 
 
 § 149. (100) Without express power, a public corporation 
 cannot make a contract to provide for celebrating the Fourth of 
 July^ or to provide an entertainment for its citizens or guests. 
 Such contracts are void, and, although the plaintijff complies there- 
 with on his part, he cannot recover of the corporation.^ 
 
 Impounding Animals. 
 
 § 150. (101) Power to impound and forfeit domestic animals 
 must be expressly granted to the corporation, and laws or ordi- 
 nances authorizing the officers of the corporation to impound, 
 and upon taking specified proceedings, to sell the property, are 
 penal in their nature, and where doubtful in their meaning will 
 not be construed to produce a forfeiture of the property, but 
 rather the reverse. The pound-keeper cannot justify in an action 
 brought against him by the property owner unless he has strictly 
 complied with all the requirements of the law under which he 
 acts. Thus, if he sells without giving the requisite notice, or for 
 the full length of time required, he is liable, although the owner 
 sustains no actual injury from the omission, or the owner may 
 
 The King v. The Commissioners of Sew- a statutory declaration of this common 
 ers for tlie Tower Hamlets, 1 B. & Ad. law principle. 1 Eev. Sts. 599, sees. 1-3. 
 232 ; Attorney-General v. Mayor of Nor- " Until, the case of Hodges v. Buffalo, 2 
 wich, 2 M. & C. 406; Regina v. The Denio, 110, nothing," says PraU, J., .3 
 Mayor and Town Council of Sheffield, L. Comst. 438, " was more frequent than for 
 R. 6 Q. B. 652. An attempted appropri- city authorities to vote largesses and give 
 ation contrary to the terms of the trust splendid banquets for objects and pur- 
 may be restrained. Attorney-General v. poses having no possible connection with 
 Aspinall, 2 M. & C. 613; Harrison's Mu- tlie growth or weal of the body politic, 
 nicipal Manual, 4th ed ; post, cli. xxii. thus subjecting their constituents to un- 
 1 Hodges V. Buffalo, 2 Denio (N. Y.), necessary and oppressive taxation." Un- 
 110, 1846. Same principle. Cornell v. der a clause in a charter providing that 
 Guilford, 1 Denio, 510; Hood v. Lynn, 1 "nothing in this charter shall be con- 
 Allen (Mass.), 103, 1861 ; Gerry v. Stone- strued .... as giving the power to 
 man, 76. 319 ; Hale v. People, 87 111. 72. vote money for any ordinary object ex- 
 Nor to celebrate surrender of Cornwallis. eept for the regular, ordinary, and usual 
 Tash V. Adams, 10 Cush. 252, 1852. Nor expenses of the city," the city council 
 can towns in Massachusetts vote money of Newport gave a ball and banquet ; cer- 
 for the purchase of uniforms for an artiUery tain taxpayers obtained a temporary in- 
 company. Claflln v. Hopkinton, 4 Gray, junction restraining tlie treasurer from 
 502, 1865. " Corporations," says JeweJt, paying the bills, which, upon final hear- 
 J., in Hodges v. Buffalo, 2 Denio, 110, ing, wss sustained and made perpetual. 
 " have no other powers than suc'.i as are Austin v. Coggeshall, 12 Rho. Is. 329; s. 
 expressly granted, or such as are neces- p. Greenough v. Wakefield, 127 Mass. 
 sary to carry into effect the powers ex- 275 ; ante, sec. 89 ; post, ch. xxii. gee. 916. 
 pressly granted." In New Yon-k there is 
 
§ 151.J 
 
 MUNICIPAL CHARTERS. 
 
 177 
 
 treat the sale as void and recover his property.^ A statute direct- 
 ing the mayor to issue a warrant annually, within ten days from 
 July 1, commanding police officers to " kill all dogs not licensed 
 according to law, whenever and wherever found," is not in con- 
 flict with the constitution of Massachusetts.^ 
 
 Party Walls. 
 
 § 151. (102) Power in a charter to pass ordinances " to 
 
 authorize the erection of party walls and fences, and to regulate 
 
 Co.Litt. 47 B.; lb. 145 B.; 1 Chit. PI. 
 159 ; Pritchard v. Stevens, 6 Durn. & E. 
 522; Isley v. Stubbs, 5 Mass. 283 ; Smith 
 V. Huntington, 3 N. H. 76 ; but it does lie 
 if he voluntarily parts with his legal con- 
 trol over them, or if he impounds them 
 in any other places than those prescribed 
 by the law, as, for example, in his pasture 
 or bam, although this be done the more 
 conveniently to furnish them with food 
 and drink. Bills v. Kinson, 1 -Foster (N. 
 H.), 448, 1850. In New Hampshire if 
 creatures are found " doing damage," 
 they may be impounded, and appraisers 
 are to ascertain " whether any damage 
 was done." Held that the statute contem- 
 plated actual, and not merely nominal 
 damages, to justify impounding. Osgood 
 V. Green, 33 N. H. 318, and cases cited. 
 As to power to take up and forfeit ani- 
 mals at large, see also chapter on Ordi- 
 nances, post ; infra, sec. 348. 
 
 ^ Blair v. Forehand, 100 Mass. 1.S6. 
 The act of July 3, 1863, entitled " An Act 
 in Relation to Damages occasioned by 
 Dogs," so far as it undertakes to charge the 
 owner with the amount of damage done 
 by his dog, as fixed by the selectmen of 
 the town, without an opportunity to be 
 heard, is unconstitutional ; because it is 
 contrary to natural justice and not within 
 the scope of legislative authority con- 
 ferred by the constitution on the general 
 court, and also because it is in violation 
 of the provision of the bill of rights which 
 secures the right of trial by jury in all 
 controversies concerning property, ex- 
 cept in cases where it had not theretofore 
 been used and practised. East Kingston 
 V. Towle, 48 N. H. 57. The legislature 
 have power to make towns liable for 
 damage done within their limits by dogs, 
 and to give towns a right of action to re- 
 cover the actual damage from the owners 
 of the dogs. lb. 
 
 1 White V. Tallman, 2 Dutch. (N. J.) 
 67, 1856 ; Willis v. Tigris, 45 111. 289 ; lb. 
 218; Bounds v. Stetson, 45 Me. 596, 
 1858; Gilmore v. Holt, 4 Pick. 258, 1826 ; 
 Rounds i>. Mansfield, 38 Me. 686, 1854; 
 Smith V. Gates, 21 Pick. 55, where the 
 rule in the text was applied, although the 
 sale was made only twenty minutes be- 
 fore the expiration of the time required 
 by law. So actual knowledge, by the 
 owner of the beasts, of the impounding 
 thereof, is not equivalent to the written 
 notice required by the statute. Coffin v. 
 Field, 7 Cush. 355. Abridgment of the 
 required notice for the shortest period 
 avoids the sale ; and so does a sale, at one 
 bidding, of two animals having different 
 owners. Clark v. Lewis, 35 111. 417, 1864. 
 Purchaser must show a regular and au- 
 thorized sale when his title is questioned 
 by the former owner, lb. Breach of a 
 pound, and liberating an animal therein 
 confined, is no violation of an ordinance 
 prohibiting " any person from opposing 
 or interrupting any city officer in the ex- 
 ecution of the ordinances of the city." 
 Mayor, etc. v. Omburg, 22 Ga. 67, 1857. 
 Marshal must strictly comply with the 
 ordinance, or he becomes a trespasser 
 from the beginning. 13 Pick. 384 ; 4 lb. 
 258; 2174.55; 13 Met. 407; 7 Cush. 355; 
 9 Pick. 14; 12 Met. 118; 23 Pick. 255; 
 12 Met. 198. Owner cannot legally break 
 pound and rescue animals. 5 Pick. 514 ; 
 5 Cush. 267. Pound defined. 2 Cush. 
 305. Marshal cannot delegate his au- 
 thority to others to impound for him gen- 
 erally, and in his absence, but may have 
 assistants to act in concert with him. 
 Jackson v. Morris, 1 Denio, 199. See 
 Friday v. Floyd, 63 111. 50, 1872. Offi- 
 cers must use the public pound. 1 Rho. 
 Is. 219. Replevin does not lie against 
 A pound-keeper, at common law, while 
 the creatures are in his legal custody. 
 
 VOL. I. 12 
 
178 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VI. 
 
 them," includes the power to authorize their erection upon the 
 application of either owner, and without the consent of the other ; 
 and such an ordinance is not .unconstitutional because compen- 
 sation is not provided for the land occupied by the wall.^ 
 
 Public Defence. 
 § 152. (103) During the late Rebellion, acts were passed by 
 many of the legislatures of the adhering states in effect authoriz- 
 ing municipalities to raise money, fly loans and taxation, to pay 
 bounties to volunteers, to enable the municipality to fill its quota 
 under the calls of the President for troops, and thereby avoid an 
 anticipated draft. The constitutional principles involved in legis- 
 lation of this character will be found learnedly discussed in the 
 cases below cited, which fully establish the validity of such legis- 
 lation.2 But, without express authority, a municipality possesses 
 no such power ; ^ yet, if exercised, it may be validated by subse- 
 quent legislative action.* 
 
 1 Hunt V. Ambruster, 17 N. J. Eq. 
 (2 C.E.Green), 208, 1865. 
 
 Regulations as to party-walls must be 
 strictly followed. If a person, under color 
 of such regulations, does injury to his 
 neighbor, he is liable to be sued. Pratt 
 V. Hillman, 4 B. & C. 269; see also The 
 Queen v. Ponsford, 1 D. & L. 116. No 
 man has a right to presume that his 
 neighbor will hereafter build a house ad- 
 joining to his, and erect half of his out- 
 side wall on his neighbor's ground in 
 consequence of such presumption. Bar- 
 low V. Norman, 2 W. Bl. 959. An exter- 
 nal wall cannot be said to be a party- 
 wall. Sims V. Estate Company, 14 L. T. 
 N. S. 55. A party-wall is a wall which 
 belongs to two persons as part owners, or 
 divides two buildings one from another. 
 Weston w. Arnold, L. R. 8. Ch. Ap. 1084. 
 The English Stat., 14 Geo. III. cli. Ixxriii, 
 was held not to make party-walls common 
 property. Matts v. Hawkins, 5 Taunt. 20. 
 If one proprietor added to the height of 
 such a party-wall, and the other pulled 
 down the addition, the first might main- 
 tain trespass for pulling down so much of 
 it as stood on the half of the wall which 
 was erected on his own soil. lb. The 
 property in a wall, though erected at joint 
 expense, follows the property of the land 
 whereon it stands. Ih. Power to pass 
 
 ordinances " to authorize the erection of 
 party-walls, etc., and to regulate them," 
 has been held to include the power to 
 authorize their erection upon the appli- 
 cation of either owner, and without the 
 consent of the other. Hunt v. Ambrus- 
 ter, 17 N. J. Eq. 208; Harrison's Muni- 
 cipal Manual, 4th ed. Further as to 
 party-walls : McAdam on Landlord & 
 Ten. 145-160. 
 
 ■^ Speer v. School Directors, 50 Pa. St. 
 150, two judges dissenting. See Hilbish 
 V. Catherman, 64 Pa. St. 154, 1870, where 
 the prior cases in that state are commented 
 on by Agnew, 3. State v. Richland Town- 
 ship, 20'oiiio St. 362; Thompsonw. Pitt- 
 son, 59 Me. 545 ; Broadhead k. Milwaukee, 
 19 Wis. 652; State v. Tappan, 29 Wis. 
 664 ; s. c. 9 Am. Rep. 622 ; Sperry v. 
 Horr, 32 Iowa, 184 ; Booth r. Woodbury , 32 
 Conn. 118; Shackford v. Newington, 46 N. 
 H.415; Lowelli'. Oliver, 8 Allen (Mass.), 
 247; Freeland v. Hastings, 10 Allen, 
 570; Comer v. Folsom, 13 Minn. 219; 
 Cooley Const. Lim. 219-229 ; Veazie v. 
 China, 50 Me. 618 ; Clark Co. i>. Law- 
 rence, 63 111. 32 ; Ih. 40. 
 
 ' Stetson 0. Kempton, 13 Mass. 272; 
 Fiske V. Hazzard, 7 Rlio. Is. 488 ; Shack- 
 ford V. Newington, supra ; ante, sec. 30. 
 
 * Booth V. Woodbury, 32 Conn. 118 ; 
 Kunkle v. Franklin, 18 Minn. 127 ; Comer 
 
§ 153.] 
 
 MTINICIPAL CHAETEBS. 
 
 179 
 
 Aid to Railroad Companies. 
 
 § 163. (104) The most noted of extraordinary powers con- 
 ferred upon municipal and public corporations is the authority to 
 aid in the construction of railways by subscribing to their stock, 
 issuing negotiable bonds as a means of paying their subscription, 
 and taxing the inhabitants or the property within their limits to 
 pay the indebtedness thereby incurred. Legislation of this kind 
 had its origin within a period comparatively recent, and has been 
 more or less resorted to, at times, by almost every state in the 
 Union. As it is an author's duty, in a work of this character, to 
 state what the law is, rather than what, in his judgment, it 
 ought to be, he feels constrained to admit that a long and almost 
 unbroken line of judicial decisions in the courts of most of the 
 states has established the principle that, in the absence of special 
 restrictive constitutional provisions, it is competent for the 
 legislature to authorize a municipal or public corporation to aid, 
 in the manner above indicated, the construction of railways run- 
 ning near, or to, or through them. The cases on this subject are 
 referred to in the note ; ^ but, notwithstanding the opinion of so 
 
 V. FolBom, 13 Minn. 219 ; Hilbish v. Cath- 
 erman, 64 Pa. St. 154, 1870; State v. 
 Richland Townsliip, 20 Ohio St. 362, 
 1870 ; ante, sec. 79. 
 
 1 Goddin v. Crump (act authorizing 
 tlie city of Richmond to subscribe stock 
 in a company incorporated to improve 
 the navigation of the James River, and to 
 build a road to the falls of the Kanawha 
 River). 8 Leigh (Va), 120, 1837. This 
 is the earliest case of the class. Bridge- 
 port V. Railroad Co., 15 Conn. 475, 184.3; 
 Society, etc. v. New London, 29 Conn. 
 174 ; Douglass v. Chatham, 41 Conn. 211, 
 1874; Nichol v. Nashville, 9 Humph. 
 (Tenn.) 252, 1848; Powers v. Superior 
 Court, 23 Ga. 65, 1857 ; Talbot v. Dent, 
 9 B. Mon. (Ky.) 626, 1849 ; Slack v. Rail- 
 road Co., 13 lb. 1, 1852; Maddox v. Gra- 
 ham, 2 Met. (Ky.) 56; Commonwealth 
 w.McWilliams,llPa. St. 61,1849; Sharp- 
 less V. Mayor, etc., 21 76. 147 ; Ih. 188 ; 
 Commonwealth ii. Perkins, 43 Pa. St. 
 410; 47 Ih. 189; Cotton v. County 
 Commrs., 6 Flor. 610, 1856 ; Railroad Co. 
 V. Commrs., 1 Ohio St. 77, 1852; Cass v. 
 Dillon, 2 Ih. 607, 1853 ; Ohio v. Commrs., 
 etc., 6 /f 280 ; 7 lb. 327 ; 8 lb. 894 ; 12 lb. 
 
 596,624; 14 /6.569; Strickland w. Rail- 
 road Co., 27 Miss. 209 ; City v. Alexander, 
 23 Mo. 483, 1856; 39 Ih. 485; Leaven- 
 worth County 17. Miller, Supreme Court 
 of Kansas, 1871, 7 Kan. 479 ; 9. c. 12 
 Am. Rep. 425. The opinion of Vcdenline, 
 J., covers the whole ground of contro- 
 versy. Kingman, C. J., concurred, and 
 Brewer, J., dissented. Clarke o. Roches- 
 ter, 24 Barb. 446, 1857 ; Bank of Rome » 
 Rome, 18 N. Y. 38, 1858 ; Starin v. Genoa 
 23 N. Y. 439, 1861 ; People v. Mitchell 
 35 N. Y. 551, 1866 ; Police Jury w.Suc- 
 cession of McDonough, 8 La. An. 341 
 Aurora v. West, 9 Ind. 74, 1857; 22 76, 
 88 ; Mt. Vernon v. Hovey, 52 Ind. 563, 
 1876 ; Robinson v. Bidwell, 22 Cal. 379 
 Stein «. Mayor, etc., 24 Ala. 591, 1854 
 Gibbons v. Railroad Co., 36 Ala. 410 
 Prettyman v. Supervisors, 19 111. 406, 
 1858; 8. p. 24 76. 75, 208 ; Butler v. Dun 
 ham, 27 III. 474, 1861 ; Robertson v. Rock- 
 ford, 21 111. 451 ; Chicago, etc. Railroad 
 Co. V. Smith (donation to Railroad Co.), 
 62 111. 268, 1871 ; 8. c. 14 Am. Rep. 99 ; Sib- 
 ley V. Mobile, 3 Woods C. C. 535 ; and 
 see also as to authority to precinct to levy 
 tax to maintain a bridge, Shaw v. Dennis, 
 
180 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. VI. 
 
 many learned and eminent judges, there remain serious doubts 
 as to the soundness of the principle, viewed simply as one of 
 
 5 Gilm. (111.) 405; San Antonio v. Jones, 
 28 Tex. 19; Copes t>. Charleston, 10 
 Eich (S. C.) 491, 1857; Augusta Bank 
 I/. Augusta, 49 Me. 507 ; Clark v. City, 
 etc., 10 Wis. 136 ; 76. 196, 1859 (compare 
 Whiting V. Sheboygan Kailroad Co., in- 
 fra). The Supreme Court of Wisconsin, 
 in an opinion delivered in Phillips v. Al- 
 bany, 28 Wis. 340, 1871, say the power 
 of the legislature to authorize municipal 
 subscriptions to the stock of railroads is 
 settled by former decisions in this state, 
 as well as in other states, though the ma- 
 jority of this court would be disposed to 
 deny the power, if it were a new ques- 
 tion. B. p. Rogan V. Watertown, 30 Wis. 
 259, 1872; Lawson v. Railway Co., 30 
 Wis. 597 ; U. S. v. New Orleans, 2 Wood, 
 C. C. 230. The Supreme Court of the 
 United States hare decided that the power 
 may be conferred by the legislature. 
 Infra, sec. 158 ; Thompson v. Lee County, 
 8 Wall. 327 ; Knox County v. Aspinwall, 
 21 How. (U. S.) 539, 547,1858; Zabris- 
 kie V. Railroad Co., 23 76. 381 ; Amey v. 
 Mayor, 24 lb. 365, 376 ; Gelpecke v. Du- 
 buque, 1 Wall. 175, 1863 ; Mercer County 
 V. Hacket, 76. 81 ; Meyer v. Muscatine, 
 76. 384 ; Caldwell v. Justices, 4 Jones (N. 
 C.) Eq. 323; Taylor v. Newbeme, 2 76. 
 141, 1854; s. p. Hillw. Forsythe Co., 67 
 N. C. 367, 1870. In Iowa the constitu- 
 tionality of railroad subscriptions by mu- 
 nicipalities was first (1853) affirmed in Du- 
 buque County w. Railroad Co., 4 G. Greene 
 (Iowa), 1 ; afterwards (1862) denied. 
 State V. Wapello County, 13 Iowa, 388 : 
 denial adhered to down to 1869, Hanson 
 V. Vernon, 27 Iowa, 28 ; but note the vir- 
 tual, yet not acknowledged overthrow of 
 the line of decisions denying the power, 
 in Stewart v. Polk County, 30 Iowa, 1*, 
 1870; Ren wick v. Davenport, etc. Rail- 
 way Co., 47 Iowa, 511. The legislative 
 and judicial history of the subject is fully 
 stated in King v. Wilson, 1 Dillon's C. C. 
 R. 555, 1871. By the constitution of Ten- 
 nessee, the legislature has power to au- 
 thorize counties and incorporated towns 
 to impose taxes for " county and corpo- 
 ration purposes." In Nichol v. Mayor, 
 etc. of Nashville, 9 Humph. 252, 1848, it 
 was held, notwithstanding this provision, 
 
 that the legislature possessed the power 
 to authorize municipal corporations to 
 subscribe for the stock of railway com- 
 panies whose roads run to or near such 
 corporations, and that this was a legitimate 
 corporate purpose. So in Florida, held to 
 be a " county purpose," within the mean- 
 ing of the constitution ; but gucere ? There 
 is nothing in the constitution of Alabama 
 prohibiting the legislature from authoriz- 
 ing a municipal corporation to levy a tax 
 on the real estate within the corporation 
 to aid in the construction of a railroad, 
 even though the road extends beyond 
 the limits of the corporation, or even of 
 the state. So held in Stein v. Mobile, 24 
 Ala. 591, 1854. An act authorizing a mu- 
 nicipal corporation to borrow money to 
 aid in the construction of a railroad, upon 
 the written assent of two thirds of the 
 resident tax-payers, or upon the approval 
 of two thirds of the tax-paying electors, 
 is constitutional and valid ; and it is not 
 open- to the objection that it submits a 
 legislative question to the town. Starin 
 V. Genoa, 23 N. Y. 439, 1861 ; Gould u. 
 Sterling, 76. 439, 456; Bank of Rome i-. 
 Rome, 18 N. Y. 38 ; People v. Mead, 24 
 N. Y. 124 ; Horton u. Thompson, 71 N. 
 Y. 513 ; affirmed in Town of Scipio v. 
 Wright, 101 TJ. S. 665 ; s. c. 21 Alb. L. 
 Jour. 476. These cases distinguished on 
 this point from Barto v. Himrod, 4 Seld. 
 (8 N. Y.) 483. Ante, sec. 44. 
 
 Since the first edition of this work the 
 Supreme Court of Minnesota has affirmed 
 the validity of compulsory aid to railways, 
 and that it is wholly for the legislature to 
 determine whether the aid sliall be by 
 subscribing to the stock and issuing bonds 
 in payment, or by a donation of money or 
 bonds to secure their construction, the 
 court in either case regarding the use to 
 be a public use for which taxation may be 
 authorized. Davidson v. Ramsey County, 
 18 Minn. 482, 1872. And the validity of 
 such legislation has also been affirmed by 
 the Supreme Court of Nebraska. Crounse 
 and Lake, 33., concurring, and Mason, C. 
 J., dissenting. The opinion of Crounse, 
 J., reviews the principal cases. Hallen- 
 beck V. Hahn, 2 Neb. 377 ; and by the 
 Supreme Court of California, Stockton, 
 
§ 156.] MUNICIPAL CHARTERS. 181 
 
 constitutional law. Regarded in the light of its effects, how- 
 ever, there is little hesitation in affirming that this invention to 
 aid the enterprises of private corporations has proved itself bane- 
 ful in the last degree. 
 
 § 154. It is estimated that the municipal indebtedness in this 
 country has already reached the enormous sum of -f 1,000,000,000, 
 and it is constantly increasing. A large portion of this indebt- 
 edness is evidenced by negotiable bonds, which are held by thou- 
 sands of persons, at home and abroad, as an investment. These 
 bonds have been issued for a great variety of purposes, such as 
 the erecting of public buildings, the making of municipal im- 
 provements, and in payment of subscriptions for the stock of 
 railway corporations, or as donations to aid them in the construc- 
 tion of their roads located in or near the municipality or public 
 corporation thus extending its assistance.^ 
 
 § 155. The power conferred upon municipal and public cor- 
 porations to issue commercial securities for such purposes is of 
 comparatively recent origin, and it has undeniably been at- 
 tended with very serious, and it is perhaps not too strong a 
 statement to add, disastrous, consequences. One of these is the 
 stimulus which the long credit commonly provided for effectually 
 supplies to over-indebtedness. The bonds usually fix a time, 
 twenty or thirty years distant, for payment of the principal. 
 Those who vote the debt, and the councils or bodies which 
 create it and issue the bonds, do so without much hesitation, as 
 the burden is expected to fall principally on posterity. A learned 
 justice of the Supreme Court of the United States has very fitly 
 described the effect witnessed as a mania for running in debt for 
 public improvements.^ It has elsewhere been characterized as 
 an " epidemic insanity " inducing extravagant corporate subscrip- 
 tions to public works. 
 
 § 156. In many parts of the country, and particularly in the 
 West, this mania has become general in cities, counties, townships, 
 
 etc. Railroad Co. v. City of Stockton, Text approved. Jacksonport v. Watson, 
 
 41 Cal. 147, 1871 ; and in Alabama, Opel- 83 Ark. 704. 
 
 ika V. Daniel, 59 Ala. 211 ; Selma & Gulf ^ As to coupon bonds, see Daniel on 
 
 Railroad in re, 45 Ala. 596, 1871 ; and in Neg. Instr. sec. 148(5, et seq. Post, chapter 
 
 Kentucky, Allison o. V. L. H. C. & W. on Contracts. 
 
 Railway Co., 10 Bush (Ky.), 1, 1873. " Mr. Justice Davis. 
 
182 MUNICIPAL CORPORATIONS. [CH. VI. 
 
 and school-districts, and large and burdensome debts have been 
 thoughtlessly created. The author has known new counties, in 
 a western state, not containing over 10,000 inhabitants, vote, for 
 a single railway, bonds to the amount of $300,000, drawing ten 
 per cent interest, payable annually ; and instances are not infre- 
 quent where bonds have been issued greater than the assessed 
 value of all the taxable property at the time within the municipal 
 or territorial subdivision. No check against the incurring of over- 
 indebtedness is so effectual as the ©ne that you must pay as you 
 go ; but this is wholly disregarded in the legislation which author- 
 izes bonds payable at a remote period. Another serious conse- 
 quence of this policy is that even the interest on these bonds often 
 proves to be a heavy burden upon the community, and in many 
 instances the bonds have been issued fraudulently by the public 
 or municipal oificers, and no consideration, or none of value, has 
 been in fact received therefor. They fliay, indeed, have the 
 stock of the railway company ; but in most cases, under the pre- 
 vailing mode of constructing railways, the stock is utterly value- 
 less. When the sting of taxation is felt, and when the tax -payer 
 knows that the bonds were fraudulently issued, and even when 
 he feels that they were improvidently given, experience shows 
 that repudiation, or attempted repudiation, is the next stage, 
 involving a forfeiture of the public faith pledged for their pay- 
 ment. Occasionally it has been witnessed. that the state, in all its 
 departments, has actively sympathized with the repudiating 
 municipality, and the public faith has been redeemed only 
 through the coercion of the Supreme Court of the United States. 
 In a few instances, indeed, the states have set the example of 
 repudiating their own obligations issued in aid of railways ; and 
 it was only last winter, in a case of this kind, that the Su- 
 preme Court at Washington felt itself bound to declare "that 
 the faith of the state, [of Minnesota] solemnly pledged, has not 
 been kept ; and were she amenable to the tribunals of the country, 
 as private individuals are, no court of justice would withhold its 
 judgment against her." Examples of this kind are demoralizing, 
 and cannot safely become general or frequent. 
 
 § 157. (105) It is not proposed here to enter into a discussion 
 of the constitutional principles involved in such legislation. The 
 arguments in favor of the power are fully presented in the 
 
§ 157.] 
 
 MUNICIPAL CHARTERS. 
 
 183 
 
 leading case of Sharpless v. The Mayor,' and against it in Han- 
 son V. Vernon,^ in Whiting v. Sheboygan Railway Company ,8 and 
 in the People v. Township Board of Salem,* to which, and to 
 
 ' Sharpless v. Mayor, 21 Pa. St. 147. 
 See, also. Am. Law Rev. Oct. 1870 ; infra, 
 sec. 158. 
 
 2 Hanson v. Vernon, 27 Iowa, 28, 1869. 
 
 ' Whiting V. Sheboygan Railway Co., 
 25 Wis. 167, 1870. 9 Am. Law Reg. (N. 
 S.) 156 ; 8. 0. 25 Wis., opinion by Dixon, 
 C. J. ; Rogan v. Watertown, 30 Wis. 259, 
 1872. 
 
 * People V. Township Board of Salem, 
 9 Am. Law Reg. (N. S.) 487, and notes, 
 1870 ; s. c. 20 Mich. 452. " Bonds like 
 these are of modern invention, and when 
 counties and towns were decoyed into 
 the use of them for the purpose of rail- 
 road corporations, they had to obtain en- 
 abling statutes before they could prosti- 
 tute municipal seals to any such purpose. 
 And as soon as the people [of Pennsyha- 
 nia\ began to feel the consequences of ap- 
 plying the fundamental principle of com- 
 mercial paper to their. bonds, they altered 
 their organic law so as to render such 
 bonds and enabling statutes impossibili- 
 ties in the future." Per Woodward, C. J. 
 County V. Brinton, 47 Pa. St. 367, 1864. 
 The evil of these subscriptions was the 
 cause uf the amendment to the constitu- 
 tion. Per Read, J., Pennsylvania Rail- 
 road Co. V. Philadelphia, lb. 193. The 
 amended constitutional provision in Penn- 
 st/U-ania is as follows : " The legislature 
 shall not authorize any county, city, bor- 
 ough, township, or incorporated district, 
 by virtue of a vote of its citizens, or other- 
 wise, to become a stockholder in any com- 
 pany, association, or corporation, or obtain 
 money for, or loan its credit to, any corpo- 
 ration, association, institution, or party." 
 Sec 7, art. xi., Amendment to Constitu- 
 tion, 1857. See Pennsylvania Railroad 
 Co. V. Philadelphia, 47 Pa. St. 189, for 
 construction of this amendment. 
 
 The Ohio constitution (art. viii. sec. 6) 
 provides that " the General Assembly 
 shall never authorize any county, city, 
 town, or township, by vote of its citizens 
 or otherwise, to become a stockholder in 
 any joint stock company, corporation, or 
 association whatever ; or to raise money 
 or loan its credit to, or in aid of, any such 
 
 company, corporation, or association ; and 
 tliis was lield not to prohibit the legisla- 
 ture from authorizing a municipal corpo- 
 ration to engage in building a railroad 
 mainly outside of the state on its own 
 account. Walker w. Cincinnati, 21 Ohio 
 St. 14, 1871 ; s. c. 11 Am. Law Reg. (N. 
 S.) 346, and note of Judge iJec[/ieW; s. c. 
 8 Am. Rep. 24. Considering the evil 
 which this provision of the constitution 
 was aimed at, it seems difiScult to avoid the 
 conclusion that this construction thwarts 
 the intention and purpose for which the 
 provision was designed and adopted. 
 
 This case illustrates the dangerous na- 
 ture of the invention of bringing the taxing 
 power to aid in the building of railway 
 lines, and particularly does it subvert all 
 previous notions of theappropriate powers, 
 functions, and duties of municipalities. 
 Here a single city, in the face of the con- 
 stitution, was authorized to borrow flO,- 
 000,000, and issue its bonds in payment, 
 to be appropriated to the construction of 
 a long railroad line by itself and for itself, 
 lying chiefly in other states ; and yet the 
 validity of the act giving the authority 
 was sustained. In May, 1873, the same 
 constitutional provision was before the 
 Supreme Court of the state, and the act 
 of 1872, mentioned below, was held to be 
 in conflict with it, since the legislature 
 could not do indirectly what it was pro- 
 hibited from doing directly. The court 
 held : 1. Taxation can only be authorized 
 for public purposes. When, therefore, a 
 statute authorizes a county, township, or 
 municipality to levy taxes not above a 
 given per cent on the taxable property of 
 the locality for the purpose of building 
 so much of a railroad- as can be built for 
 that amount, and the part of a railroad 
 so to be built can he of no public utility 
 unless used to accomplish an unconstitu- 
 tional purpose, such tax is illegal and can- 
 not be enforced. 2. Where public credit 
 or money is furnished by any of the sub- 
 divisions of the state named in the con- 
 stitution, to he used in part in the con- 
 struction of a work which, under the 
 statute authorizing its construction, must 
 
184 MUNICIPAL COEPOKATIONS. [CH. VI. 
 
 the other cases before cited, the reader is referred. The judg- 
 ments affirming the existence of the power have generally met 
 with strong judicial dissent and with much professional dis- 
 approval, and experience has demonstrated that the exercise of 
 it has been productive of bad results. Taxes, it is everywhere 
 agreed, can only be imposed for public objects, and taxation to 
 aid in building the roads of private railway companies, even if 
 the use is a public use, is hardly consistent with a proper respect 
 for the inviolability of private proj^prty and individual rights. 
 Fraud usually accompanies the exercise of the power, and ex- 
 travagant indebtedness is the result ; and, sooner or later, the 
 power will be denied by constitutional provision, as it already is 
 in Pennsylvania, Ohio, Illinois, New York, Missouri, and possibly 
 some of the other states, or by legislative enactment. It is too 
 late to expect, in view of the line of decisions referred to, that 
 the courts in the states which have already passed upon the ques- 
 tion will retrace their steps, and too much to hope that the courts 
 in other states will have the boldness successfully to stem the 
 strong tide of authority, strengthened, as it will be, by temporary 
 popular feeling and insidious corporate influence. 
 
 § 158. (105a) Since the first edition of this work, the Su- 
 preme Court of the United States, following repeated intima- 
 tions of its judges in previous cases, have directly sustained the 
 
 be completed, if completed at all, by other By amendment of the constitntion of 
 
 parties out of their own means, who are New York, which tool: effect January 1, 
 
 to own, or have the beneficial control and 1875, " No county, town, or village shall 
 
 management of the work when completed, hereafter give any money or property, or 
 
 public money or credit thus used can only loan its money or credit to or in aid of any 
 
 be regarded as furnished for or in aid of individual, association, or corporation," 
 
 such parties. The act of April 23, 1872, People v. Ft. Edward, 70 N. Y. 28, 1879. 
 to authorize counties, townships, and other The constitution of Indiana provides 
 
 municipalities therein named to build rail- that " no county shall subscribe for stock 
 
 roads, etc. [59 O. L. 84], authorizes the in any incorporated company, unless the 
 
 raising of money by taxation, which is same be paid for at the time of such 
 
 equally applicable to the unlawful pur- subscription." Art. x. sec. 10. What is 
 
 pose of aiding railroad companies, and an "incorporated company," and how 
 
 others engaged in building and operating and when stock may be paid for, see 
 
 railroads, as it is any lawful purpose, and Lafayette, etc. Railroad Co. o. Geiger, 
 
 gives to the officers entrusted with the 84 Ind. 185, 1870, wliere the subject is 
 
 control and operation of the money thus very elaborately considered by Buskirk, 
 
 raised no means or power of discrimina- J. John v. Cin., etc. Railroad Co., 85 
 
 tion as to the lawfulness of the work or Ind. 539 ; Aspinwall v. Jo DavieiSs Co., 
 
 purpose to which it is to be applied, and 22 How. 364. The new constitution of 
 
 this is in contravention of sec. 6. art. viii. Missouri cuts up the business by the 
 
 of the constitution, and therefore void. roots. Art. iv. sec. 47. 
 
§ 169.] MUNICIPAL CHARTERS. 185 
 
 validity of legislative acts authorizing municipal aid to railways.^ 
 In view of the prior adjudications of that tribunal in the munici- 
 pal bond cases, referred to in the chapter on Contracts, and of 
 the almost uniform holding of the state courts, no other result 
 could have been anticipated. This ends judicial discussion if it 
 does not terminate doubts. The Supreme Court, in reaching 
 this result, places its judgment upon the ground that highways, 
 turnpikes, canals, aUd railways, although owned by individuals 
 under public grants or by private corporations, are publici juris ; 
 that they have always been regarded as governmental affairs, 
 and their establishment and maintenance recognized as among 
 the most important duties of the state, in order to facilitate 
 transportation and easy communication among its different parts ; 
 and hence the state may put forth, in favor of such improve- 
 ments, both its power of eminent domain (as if constantly does) 
 and its power to tax, unless there be some special restriction in 
 the constitution of the particular state. These powers may, in 
 the judgment of the court, be lawfully exerted, because the use 
 is in its nature a public use, and these works are subject to public 
 control and regulation (except so far as this right has been law- 
 fully parted with by valid legislative contract), notwithstanding 
 they may be exclusively owned by private persons or corporations. 
 It must be admitted that compulsory taxation in favor of railways 
 and like public improvements owned by individuals or companies 
 is an exercise of power going quite to the verge of legislative 
 authority. Although it is a doctrine that must now be con- 
 sidered as judicially settled, still it is one which has, as we think 
 justly, encountered a vigorous opposition, both on the ground of 
 expediency and of power ; and the exercise of authority has, as 
 before noticed, been so disastrous as already, in some of the 
 states, to have led to constitutional provisions for the protection 
 of the citizen. 
 
 § 159. (105fi) It is obvious, from the foregoing statement of 
 the grounds upon which the validity of such legislation rests,^ 
 that it furnishes no support for the validity of taxation in favor of 
 
 1 Olcott .7. Supervisors, 16 Wall. 678, Journal, 362; Rogers v. Burlington, 3 
 
 1872; Railroad Co. v. Otoe County, 16 Wall. 654; Mitchell v. Burlington, 4 
 
 Wall. 667, 1872; a. c. reprinted, 2 Neb. Wall. 270. 
 496 ; St. Joseph Township v. Rogers, 16 ' Ante, supra, sec. 157. 
 Wall. 664, 1872; s. c. 7 Albany Law 
 
186 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VI. 
 
 enterprises and objects which are essentially private. We consider 
 the principle equally sound and salutary, that the mere incidental 
 benefits to the public or the state, or any of its municipalities or 
 divisions, which result from the pursuit by individuals of ordinary 
 branches of business or industry, do not constitute .a public use in 
 the legal sense, which justifies the exercise either of the power of 
 eminent domain or of taxation. It would have been well, in our 
 judgmeut, if this doctrine had been extended in its application to 
 railway companies; but it cannot be abandoned without unsettling 
 the foundations of individual rights, without recognizing legislative 
 omnipotence over private property, or the irresponsible despotism 
 of a local majority, and unwisely opening the way for frauds and 
 abuses which, in view of the past, cannot be contemplated without 
 deep anxiety .1 
 
 1 The doctrine of the text finds inter- 
 esting illustrations and authoritative sup- 
 port in several oases recently determined. 
 One is Lowell v. Boston, decided by the 
 Supreme Judicial Court of Massachusetts 
 in 1873. Ill Mass 463, s. c. 15 Am. Rep. 
 39. After the great fire in Boston, in 
 1872, the legislature enacted that the city 
 might issue its bonds to the amount of $20,- 
 000,000, the proceeds of which three com- 
 missioners appointed by the mayor were 
 authorized to loan In a safe and judicious 
 manner " in such sums as they shall de- 
 termine to the owners of land, the build- 
 ings upon which were burned by the fire 
 in said Boston on the ninth and tenth days 
 of November, 1872, upon the notes or 
 bonds of said owners secured by first 
 mortgages of said land ; said mortgages 
 to be conditioned that the rebuilding shall 
 be commenced within one year from the 
 first day of January, 1873, and said com- 
 missioners to have full power to apply the 
 proceeds of said bonds in making said 
 loans in such manner, and to make such 
 further provisions, conditions, and limita- 
 tions in reference to said loans, and secur- 
 ing the same^ as shall be best calculated, 
 in their judgment, to ensure the employ- 
 ment of the same in rebuilding upon said 
 land burned over, and the payment there- 
 of to the said city." 
 
 It will be seen that the object of this 
 act, as shown by its provisions, was " to 
 ensure the speedy rebuilding on laud the 
 buildings upon which were burned" by 
 
 the great fire; and the question was as 
 to the right of the state to impose any 
 taxes for this object, and this depended 
 upon the further question whether this 
 object was, in a legal sense, a public ob- 
 ject. 
 
 The court distinctly held, to use the 
 language of the rescript sent down in the 
 case, that taxes can only be laid " for 
 some public service or some object which 
 concerns the public welfare " ; that " the 
 preservation of the interests of individuals, 
 either in respect of property or business, 
 although it may result incidentally in the 
 advancement of the public welfare, is, in 
 its essential character, a private and not 
 a public object. . . . That the incidental 
 advantages to the public or to the state 
 which result from the promotion of pri- 
 vate interests, or the prosperity of private 
 enterprises or business does not justify 
 their aid by taxation. . . . That as a judi- 
 cial question the case is not changed by the 
 magnitude of the calamity which has 
 created the emergency." And finally the 
 court sjy,"The expenditure authorized 
 by this statute being for private and not 
 for public objects, in a legal sense, it ex- 
 ceeds the constitutional power of the legis- 
 lature, and the city cannot legally issue 
 the bonds for the purposes named in the 
 act." Ill Mass. 463. This case is followed 
 and approved in' State v. Osawkee Town- 
 ship, 14 Kan. 418, 1875, and the " relief 
 bonds " which the township was authorized 
 to issue were held not to be for a public 
 
160.] 
 
 MUNICIPAL CHARTERS. 
 
 187 
 
 § 160. Hundreds of municipalities in the country have ren- 
 dered themselves bankrupt by the mania to aid railways, and 
 hundreds of others are groaning under oppressive burdens occa- 
 sioned thereby. In looking over the field, it is now plain that 
 most of the evils originating from this source, and from which 
 the municipalities are suffering, have sprung not so much from 
 the bare power to aid railways, as from the manner in which the 
 power has usually been conferred. If municipalities .had been 
 forbidden to issue their bonds, and permitted to give such aid 
 only to the extent of taxes, to be levied within a short limited 
 period of time, this pay-as-you-go policy would have been an 
 effectual restraint upon extravagance in this direction. But the 
 power to give the aid was usually accompanied with express 
 authority to issue bonds, payable twenty or thirty years distant, 
 in general without limit as to amount ; and thus those who cre- 
 ated the debt were almost indifferent as to the amount of it, 
 since the main burden was expected to fall on posterity. This 
 
 purpose, and therefore void. s. c. 19 Am. 
 Rep. 99; McConnell v. Hamm, 16 Kan. 
 228 ; C. B. U. P. Eailway Co. v. Smith, 
 23 Kan. 745. 
 
 Another case is Allen v. Inhabitants of 
 Jay, 60 Me. 124, 1871 j 12 Am. Law 
 Reg. (N. S.) 481. The legislature author- 
 ized the town of Jay to lend $10,000 
 to enable the borrowers to build a saw- 
 mill and grist-mill, and to exempt the 
 mills from taxation for ten years. On 
 the ground that the purpose was not a 
 public one, the act was adjudged uncon- 
 stitutional. See opinions of the judges, 
 58 Me. Appendix, 590, et seq., given to 
 the House of Representatives. The doc- 
 trine was adhered to in Brewer Brick Co. 
 V. Brewer, 62 Me. 62, 1873 ; 8. c. 16 Am. 
 Rep. 395, and ably vindicated by Appleton, 
 C. J ; Bissell v. Kankakee, 64 111. 249, 1872. 
 
 Another case is the Commercial Na- 
 tional Bank v. City of Tola, decided by 
 the U. S. Circuit Court for the District 
 of Kansas, June, 1873, reported in 2 
 Dillon C. C. 353, affirmed 20 Wall. 655, 
 1874. For the same reasons the act of the 
 legislature which authorized the city of 
 lola to appropriate $50,000 to aid private 
 persons in the erection and equipment of 
 buildings, at or near the city, to be used 
 for manufacturing purposes, was held un- 
 
 constitutional, and the bonds void which 
 had been issued to raise the money thus 
 appropriated. The case was distinguished 
 from those relating to railway aid bonds, 
 and also construes the provision of the 
 constitution of the state that "the leg- 
 islature shall pass no special act conferring 
 corporate powers." Ante, sec. 46. And 
 more recently the Court of Appeals of 
 New York have decided in the same way, 
 holding an act to authorize municipal 
 bonds to pay for stock in a private corpora- 
 tion to construct a water privilege and to 
 manufacture lumber, to be void. Weis- 
 mer u. Village of Douglass, 64 N. Y. 91, 
 1876. 
 
 Further, as to extent and nature of the 
 taxing power, and distinction between 
 public and private use, see post, sees. 735, 
 736; Bloodgood v. Railroad Co., 18 Wend. 
 65; Jenkins v. Andover, 103 Mass. 94, 
 holding invalid a statute authorizing tax- 
 ation in favor of a private incorporated 
 academy. Same principle, Curtis v. 
 Whipple, 24 Wis. 850 ; People v. Salem, 
 20 Mich. 452 ; Freeland v. Hastings, 10 
 Allen, 570; Tyson v. School Directors, 
 61 Pa. St. 9 ; Thompson v. Pittson, 59 
 Me. 645, 1871 ; Savings Assoc, v. To- 
 peka, 3 Dillon, 876. 
 
188 MUNICIPAL COEPOFATIONS. [OH. VI. 
 
 led to the wildest extravagance. Bonds thus issued have been 
 treated by the Supreme Court of the United States as possessing 
 all the attributes of commercial paper, and to be unimpeachable 
 in the hands of innocent holders for value, notwithstanding the 
 frauds of the municipal oflBeers, or non-compliance with the con- 
 ditions upon which the bonds were authorized to be issued. 
 Under the doctrine of the Supreme Court all restraints and 
 checks upon the power proved practically valueless, since if they 
 were disregarded or evaded and the bonds issued and negotiated, 
 they became valid and enforceable obligations. The result of leg- 
 islative authority thus conferred and thus construed is seen in the 
 vast municipal debt of the country, largely created in aid of 
 railways, and in our municipalities, blighted and burdened with 
 debt. This retrospect after the battle has been lost will tend to 
 confirm the dissenting judges in their opinions, although they are 
 compelled to acknowledge the law to be otherwise settled.^ 
 
 § 161. (106) The courts concur, with great unanimity, in 
 holding that there is no implied authority in municipal corpo- 
 rations to incur debts or borrow money in order to become 
 subscribers to the stock of railway companies, and that such 
 power must be conferred by express grant. To become stock- 
 holders in private corporations is manifestly foreign to the usual 
 purposes intended to be subserved by the creation of corporate 
 municipalities ; the practice of bestowing such powers is of recent 
 origin, and hence the rule that the authority must be specially 
 conferred, and cannot be deduced from the ordinary municipal 
 grants.^ 
 
 ' See further, chapter on Contracts, St. Louis v. Alexander, 23 Mo. 483, 1856 ; 
 
 post. Jones v. Mayor, etc., 25 Ga. 610, 1858; 
 
 2 Aurora v. West, 22 Ind. 88, 508, Oebricke v. Pittsburg, U. S. C. C. 1859 ; 7 
 1864 ; Starin v. Genoa, 23 N. Y. 439, 1869 ; Am. Law Reg. 725 ; Duanesburg v. Jen- 
 Gould 0. Sterling, lb. 439, 456; Atchison kins, 40 Barb. 574; French v. Tesche- 
 II. Butcher, 3 Kan. 104, 1865 ; Burnes maker, 24 Cal. 518, 1864 ; People v. 
 V. Atchison, 2 76. 454; Bank v. Rome, 18 Mitchell, 35 N. Y. 551, 1866; St. Joseph 
 N. Y. 38 ; Bridgeport v. Housatonic Rail- Township b. Rogers, 16 Wall. 644, 1872 ; 
 way Co., 15 Conn. 475; Marsh o. Fulton English v. Chicot County, 26 Ark. 454, 
 Co., 10 Wall. 676, 1870 ; Cook v. Manu- 1871 ; Thompson v. Lee County, 3 Wall, 
 facturing Co., 1 Sneed (Tenn.), 698, 1854; 327 ; Commercial Bank v. lola, 2 Dillon 
 Gaddis v. Richland Co., 92111. 119; Pitz- C. C. R. 353, 1873; s. c. 20 Wall. 655. 
 man v. Freeburg, 92 111. Ill; McCoy u. "No lawyer doubts that a borough can 
 Brant, 53 Cal. 247 ; Lewis v. .Shreveport, only subscribe to a railroad when ex- 
 3 Wood C. C. 205; Nichol v. Nashville, 9 pressl;^ authorized by law." Black, C. J., 
 Humph. (Tenn.) 252; City and County of in Sharpless's Case, cited Pennsylvania 
 
§ 161.] 
 
 MUNICIPAL CHARTEKS. 
 
 189 
 
 Accordingly, where a city was, by charter, specifically author- 
 ized to construct wharves, docks, piers, water-works, works for 
 lighting the city, etc., and was also authorized, upon certain for- 
 malities, to create a debt, this was considered to mean a debt for 
 some of these specified purposes, and not to empower the corpo- 
 rate authorities to issue bonds to aid in the construction of a 
 railroad. 1 So there is no power in a municipal corporation as 
 incidental to the usual grants of municipal authority to take 
 stock in a manufacturing company located in or near the corpora- 
 tion,^ or to aid or engage in other enterprises, essentially private.^ 
 
 Railway Co. v. Philadelphia, 47 Pa. St. 
 189. A railroad is such a " road " as is 
 embraced in the terms of a charter by 
 which the common council of a city were 
 authorized "to take stocic in any char- 
 tered company for making roads to said 
 city." Railroad Co. u. Evansville, 15 Ind. 
 395, I860; Aurora .-. West, 9 lb. 74; 
 post, ch. xir. Contracts. The legislature 
 may, before (Aspinwall u. Daviess Coun- 
 ty, 22 How. 364), if not, indeed, after, 
 the subscription is made, but before it is 
 paid for, annul the proceeding and au- 
 thorize the municipal corporation to with- 
 draw the subscription and release its 
 right to the stock. People v. Coon, 25 
 Cal. 635. Extent of legislative power. 
 Ante, ch. iv. Text approved. Jackson- 
 port V. Watson, 33 Ark. 704. 
 
 1 Lafayette v. Cox, 5 Ind. (Port.) 88, 
 1854. As to rights of bondholders, how- 
 ever, see post. Contracts, and decisions in 
 the national and state courts, there cited. 
 Power in general to the city council of 
 Charleston, by the charter of 1783, to 
 pass, inter alia, " every other by-law as 
 shall appear to the city council requisite 
 and necessary for the security, welfare, and 
 convenience of said city," was held by the 
 Court of Errors to authorize the city to 
 subscribe to the stock of railroad compa- 
 nies within or without the state. Copes 
 V. Charleston, 10 Rich. (South Car.) Law, 
 491, 1857 ; see City Council ». Baptist 
 Church, 4 Strob. Law, 806, 808, for pre- 
 amble to the charter of Charleston. There 
 can be little doubt that this is pressing 
 the constructive powers of the corpora- 
 tion to an unwarrantable extent. 
 
 Construction of special acts or charters 
 held to give power to take stock and issue 
 
 bonds, Meyer v. Muscatine, 1 Wall. 884, 
 1863 ; Curtis v. Butler County, 24 How. 
 485; Gelpecke ». Dubuque, 1 Wall. 220; 
 City and County of St. Louis v. Alex- 
 ander, 23 Mo. 483 ; Railroad Co. v. Otoe 
 County, 1 Dillon C. C. 338, 1871 ; Rogers 
 v. Burlington, 3 Wall. 654 (compare 
 Chamberlain v. Burlington, 19 Iowa, 
 395) ; Posdick v. Perrysburg, 14 Ohio St. 
 472; Goshorn v. County, 1 West Va. 
 308 ; Taylor v. Newberne, 2 Jones (North 
 Car.) Eq. 141 ; Caldwell ,i. Justices, 4 
 lb. 323; People v. Spencer, 55 N. Y. 1, 
 1873 ; Decker v. Hughes, 68 III. 88, 1873 ; 
 People V. Pueblo Co., 2 Col. 360, 1875; 
 English ». Chicot Co., 26 Ark. 454, 1871 ; 
 distinguishing Seybert v. Pittsburgh, 1 
 Wall. 272 ; Veeder v. Lima, 19 Wis. 280, 
 1865. The opinion of Dixon, C. J., con- 
 tains an interesting discussion of the 
 questions presented by that case. 
 
 2 Cook V. Manufacturing Co.,. 1 Sneed 
 (Tenn.), 698, 1854; Com. Nat. Bank v. 
 lola, 2 Dillon C. C. R. 353, 1873. 
 
 s Clark b. Des Moines, 19 Iowa, 199, 
 1865; Hanson v. "Vernon, 27 Iowa, 28; 
 Cooley ConSt. Lini. 212. A city corpora^ 
 tion cannot subscribe for stock in a steam- 
 ship line without express legislative au- 
 thority. Pennsylvania Railroad Co. v. 
 Philadelphia, 47 Pa. St. 189; and since 
 the new constitution of Pennsylvania 
 (art. xi. sec. 7, Amendment to Constitu- 
 tion, 1857), the legislature capnot give 
 that power. Where a charter recited its 
 purpose to delegate to the city authorities 
 power to make such ordinances as the 
 "contingencies, or the local circumstan- 
 ces," of the corporation might require, 
 and gave "full power and authority to 
 make such assessments on the inhabitants 
 
190 MUNICIPAL CORPORATIONS. [CH. VI. 
 
 § 162. (107) Whether special authority to a municipality to 
 borrow money to pay for stock subscribed to a railway company 
 will impliedly repeal, pro tanto, existing charter limitations upon 
 the rate of taxation, is a question depending upon construction, 
 and in relation to which the courts have differed. But the strong 
 inclination of the National Supreme Court seems to be in favor 
 of that construction which restricts such limitations to the exer- 
 cise of the power of taxation in the ordinary course of municipal 
 action.^ * 
 
 § 163. (108) If the power to issue bonds in aid of railway and 
 other like enterprises does not exist, they are void into whosesoever 
 hands they may come.^ The power, when it has been conferred, to 
 aid or engage in extra-municipal enterprises, being extraordinary 
 in its nature and burdensome to the citizen, must (at least be- 
 tween all persons except bona fide holders of the securities) 
 be strictly pursued according to the terms and conditions of the 
 grant conferring it.^ Thus, under an act authorizing town 
 oiBcers to borrow money upon the credit of the town, and to pay 
 it over to a railroad corporation, to be expended by it " in 
 grading and constructing a railroad," taking in exchange its 
 
 of the city, or those who hold taxable ante, sec. 137 ; Fosdiek v. Perrysburg, 14 
 
 property therein, for the safety, benefit, Ohio St. 472 ; Cumberland v. Magruder, 
 
 and advantage of the city, as shall appear 34 Md. 381, 1871 ; see Assessors v. Cora- 
 
 to them expedient," the court were of missioners, 3 Brews. (Pa.J 333. State v. 
 
 opinion that the city might assess a tax Guttenburg, 39 N. J. L. 660. 
 
 upon the real estate within the corpora- ^ Marsh u. Fulton County, supra; 
 
 tion for t)ie purpose of constructing » Com. Bank v. lola, 2 Dillon, 353, 1873, 
 
 canal " for manufacturing purposes, and for affirmed in Supreme Court, 20 Wall. 655; 
 
 the better securing an abundant supply Sav. Assoc, v. Topeka, 8 Dillon, 376, 1874 ; 
 
 of water for the city," and if it could not, Weimer v. Village of Douglass, 61 N. Y. 
 
 yet that it was competent for the legisla- 91, 1876 ; Clay v. County, 4 Bush (Ky.), 
 
 ture, as it did by a subsequent act, to 154. See further, chapter on Contracts, 
 
 adopt and confirm the action of the city /ios<, where the rights of 6ona^rf« holders of 
 
 in passing such an ordinance. Frederick such instruments are considered at length. 
 
 V. Augusta, 5 Ga. 561, 1848. Aside from Dunovan v. Green, 67 111. 63; Lynde ». 
 
 the curative act, the correctness of the Winnebago County, 16 Wall. 6, 1873; 
 
 view taken by the c6urt is by no means James v. Milwaukee, 16 Wall. 159, 1872 ; 
 
 clear. Ante, sec. 79, sees. 158, 159. post, sec. 553 ; Police Jury v. Brittoo, 16 
 
 1 Butz i). Muscatine, 8 Wall. 575, 1869. Wall. 566. 
 
 Contra, Clark i». Davenport, 14 Iowa, 494 ; ' In Pennsyhania the doctrine has 
 
 Learned v. Burlington, 2 Am. Law Reg. been adopted that equity will compel the 
 
 (N. S.) 394, and note; Leavenworth v. holder to take what he gave and interest 
 
 Norton, 1 Kan. 432 ; Burnes v. Atchison, 2 where the bonds were issued in violation 
 
 Kan. 454. And see Commonwealth v. of statute ; but quaere ? See County w. 
 
 Pittsburgh, 34 Pa. St. 496; Amey v. Brinton, 47 Pa. St. 367; Pennsylvania 
 
 Allegheny City, 24 How. (U. S.) 864 ; Kailroad Co. v. Philadelphia, lb. 193. 
 
§ 164.] 
 
 MUNICIPAL CHARTERS. 
 
 191 
 
 stock at par, it is not within the power of municipal officers to 
 make a direct exchange of the bonds of the town, even for an 
 equal nominal amount of stock, as this leaves it in the pqwer of 
 the railroad corporation to sell such bonds at a discount.* So in a 
 case where a county had by the legislative act no authority to 
 issue its bonds to the railroad company unless upon the sanction 
 of a previous vote after thirty days' notice of the election to be 
 held for that purpose, the Supreme Court of Illinois held in a 
 direct proceeding against the county to enjoin it from issuing its 
 bonds, that although there was an election at which a majority 
 voted in favor of the subscription, yet the failure to give the 
 thirty days' notice was a fatal defect, and the issue of the bonds 
 was restrained.^ 
 
 § 164. It may be observed in conclusion that the Supreme 
 Court of the United States, in the municipal railway aid bond 
 cases referred to in a subsequent chapter,^ have held the doc- 
 
 1 Starin v. Genoa, 23 N. Y. 439 ; GouH 
 V. Sterling, lb. 439. In the case last 
 cited, Selden, J., p. 460, remarks : "In the 
 present case the only authority given ( to 
 tlie town) by the act is to borrow upon 
 the bonds of the town. No expftss 
 power to sell the bonds is given, and no 
 such power, can, I think, be implied. 
 To borrow money, and give a bond or 
 obligation for it, and to sell a bond or ob- 
 ligation for money,, are by no means iden- 
 tical transactions. In the one case the 
 money and the bond would, of course, be 
 equal in amount ; in the other they might 
 or might not be equal." Whether such 
 a defence would be available against a 
 bona fide holder of the bonds was not deter- 
 mined. As to these cases see chapter on 
 Contracts post. See Woods v. Lawrence 
 County, 1 Black, 386 ; Moran c. Miami 
 County, 2 Black, 722. That such a de- 
 fence is not available against a holder for 
 value, see post, sec. 583. 
 
 2 Harding v. Rockford, etc. Kailroad 
 Co., 65 111. 90, 1873. 
 
 In delivering the opinion of the court, 
 Thornton, J., remarks : " Such municipal- 
 ities were not created with the view to en- 
 gage in commerce, or to aid in the con- 
 struction of railways, but for govern- 
 mental purposes only. When they exer- 
 cise the functions given by the statutes 
 under consideration, the powers granted 
 
 must not only be clearly conferred, but 
 strictly pursued. If the mode prescribed 
 for carrying into effect the right to issue 
 bonds is not complied with in all material 
 matters, then the bonds should not be 
 issued, and thus the tax-payer will be ex- 
 empt from the imposition of illegal taxes, 
 and a grievous burden upon his property. 
 These principles have been so elaborately 
 discussed and fully settled by this court, 
 that we need only refer to some of the 
 cases. The People v. Tazwell County, 22 
 111. 147 ; Fulton County v. The Missis- 
 sippi & Wabash Railroad Co., 21 III. 273 ; 
 Middleport v. iEtna Life Ins. Co., 82 III. 
 562; People v. Logan Co., 63 111.384; 
 Williams v. Roberts, 88 III. 11 ; People v. 
 Oldtown, 88 111. 202; Clark v. Board, 
 etc., 27 III. 307 ; Force v. Batavia, 61 111. 
 99; Harding v. R. R. I. & St. L. R. R., 
 65 III. 90 ; Lippincott v. Pana, 92 III. 24 ; 
 Gaddis v. Richland Co., 92 III. 119 ; Su- 
 pervisors of Schuyler Co. v. The People, 
 15 111. 181 ; Supervisors of Hancock 
 County V. Clark, 27 /ft. 305 ; Marshall 
 County V. Cook, 38 lb. 44; Wiley v. The 
 Town of Brimfield, 59 III. 306 ; People v. 
 Cass Co., 77 III. 438, 1875. 
 
 If aid has been conditionally voted, 
 the condition must be complied with be- 
 fore the company can demand the aid. 
 Railroad Co. v. Hartford, 58 Me. 23. 
 
 ■* Post, ch, xiv. 
 
192 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VI. 
 
 trine ia favor of the innocent holders for value of such securities, 
 that the municipality may be estopped, by recitals in the bonds, 
 by the subsequent levy of taxes to pay interest thereon, and by 
 retaining the stock which was received in exchange for the bonds 
 or purchased with their proceeds, to set up in defence a non- 
 compliance with preliminary conditions. ^ This is a doctrine, 
 however, which is asserted for the protection of such holders, 
 and has ordinarily no place in controveraes which arise before 
 the issue of the bonds, between th® tax-payers, or municipality 
 on the one hand, and the company on the other. In such 
 cases estoppel has no place, and the sound doctrine is that 
 compliance with all substantial or material conditions is essential.^ 
 
 1 Post, sec. 521, et seq. 
 
 2 Jackson Co. v. Brush, 77 111. 59, 1875. 
 The Supreme Court of Connecticut, 
 
 under peculiar circumstances, held the 
 town voting aid to a railroad company 
 estopped to show, as against the railroad 
 company (equitable rights of material men 
 and contractors having intervened), that 
 the vote at the town meeting had not 
 been taken by ballot as required by the 
 act of the legislature, but by a division of 
 the house, without ballot. New Haven, 
 etc. Railroad Co. u. Chatham, 42 Conn. 
 465, 1875. See also Douglas ». Chatham, 
 41 Conn. 211. In submitting the question 
 to vote whether a township will take stock 
 in a railroad company, the township has 
 the right to impose such conditions in re- 
 gard thereto as it deems proper ; and such 
 conditions when imposed are binding, and 
 the company will have no right to the 
 subscription, or to compel the issue of the 
 bonds, until the- conditions are fully per- 
 formed on its part, if the authorities have 
 a discretion. People v. Holden, 91 111. 
 446. A vote without conditions, the an- 
 nexing of conditions will not deprive them 
 of its exercise. People ex rel., etc. v. 
 County Board of Cass County, 77 111. 
 438, 1875. 
 
 Except in controversies with bona fide 
 bondholders for value, the state courts 
 have generally held that the power of a 
 municipality to issue railroad aid bonds 
 is dependent upon a strict compliance 
 with the statute authorizing the issue of 
 such bonds ; and that when the power is 
 conditional on a prior vote of the electors 
 the statutory notice must be given. Peo- 
 
 ple V. Jackson County, 92 111. 444 ; Hard- 
 ing V. E. R. I. & St. L. R. R., 65 111. 90, 
 1872 ; People v. Waynesville, 88 HI. 469,. 
 in which it is held that one submission 
 exhausts the power, and a subsequent 
 one ii ultra vires: quaere? A subscription 
 cannot be made to a division of a road. 
 McWhorter v. People, 65 111. 290, 1872. 
 Power to issue upon compliance with 
 conditions cannot be delegated. Jackson 
 County V. Brush, 77 111. 59, 1875 ; People 
 I'. Waynesville, supra; People v. Harper 
 (vote need not fix time for bonds to run), 
 67 111. 62, 1873. Cannot make a contract 
 with railroad company for subscription 
 before election. People v. Cass County, 
 77 111. 438, 1875. Submitting two proposi- 
 tions, Marshall o. Silliman, 61 111. 218, 
 1871 ; see also Garrigus v. Park County, 
 39 Ind. 66, 1872. Conditions, effect of 
 non-observance. Alley v, Adams County, 
 76 111. 101, 1875. Voting on unauthorized 
 proposition, Cairo, etc. Co. v. Sparta, 77 
 111. 505, 1875. Election must be held accord- 
 ing to the law governing it. The People, etc. 
 V. Supervisor, etc., 67 111. 57, 1873. See 
 also the following cases : Wright v. 
 Bishop, 88 111. 302 ; Edwards u. People, 
 88 111. 340 J Williams v. Roberts, 88 111. 
 11 ; People v. Clayton, 88 111. 45 ; People 
 V. Oldtown, 88 111. 202. 
 
 The reader is referred to chapter on 
 Contracts, post, where the subject of Mu- 
 nicipal Bonds is considered at large, with 
 special reference to the decisions of the 
 Supreme Court of the United States, 
 which, generally speaking, are more favor- 
 able to the holders of such bonds than 
 those of the state courts. 
 
165.] 
 
 DISSOLUTION. 
 
 193 
 
 CHAPTER VII. 
 
 DISSOLTJTION OP MUNICIPAL CORPORATIONS. 
 
 In England. 
 § 165. (109) In England, a municipal corporation may be dis- 
 solved. 
 
 1. By an act of parliament, this power being a necessary con- 
 sequence of the omnipotence of that body in all matters of 
 political institution.^ The king may, by his prerogative, create, 
 but cannot dissolve or destroy a -corporation ; may grant privi- 
 leges, but when vested, cannot take them away.^ 
 
 It has there often been declared that a municipal corporation 
 may also be dissolved. 
 
 2. By the loss of an integral part, or the loss of all or of the 
 majority of the members of any integral part, without which it 
 cannot transact its business, unless the parts that remain have 
 the right to act or to restore the corporate succession.^ 
 
 1 Co. Litt. 176, note ; 2 Kyd, 447 ; Rex 
 V. Amery, 2 Term R. 515 ; Glover, 408 ; 
 Angell & Ames, ch. xxii. sec. 767; 2 
 Kent's Com. 305; County Commrs. v. Cox, 
 6 Ind. 403 ; State v. Trustees, etc., 5 Ind. 
 77 ; ante, sec. 32. 
 
 2 Ante, sec. 32 ; sec. 35 ; Rex v. Amery, 
 mpra ; Regents of University v. Williams, 
 9 Gill & Johns. 365, 409, 1838. In this 
 case, Buc/mnan, J., in substance, observes : 
 The crown may create, but cannot, at 
 pleasure, dissolve a corporation, or, with- 
 out its consent, alter or amend its charter. 
 Parliament may do this ; but, restrained 
 by public opinion, it has not undertaken 
 to dissolve any private corporation since 
 the time of Henry VIII., so that the power 
 to do so rests wholly in theory. In 1783 
 a bill was proposed to remodel the East 
 India Company. Lord Thurlow opposed 
 it as subversive of the law and constitu- 
 tion, and, in strong, nervous language, 
 declared It to be " an atrocious violation 
 of private property, which cut every Eng- 
 lishman to the bone." 
 
 VOL. I. 13 
 
 " Willc. on Corp. 825, ch. vii. This 
 chapter contains an interesting discussion 
 of the question of dissolution, and it 
 would seem that the author, notwith- 
 standing the occasional judgments and 
 the many and broad dicta in the books, 
 doubts whether there can be an actual and 
 total dissolution of a municipal corporation, 
 either by the loss of an integral part, or 
 by surrender, or by forfeiture. But see 
 2 Kyd, ch. v. ; Glover, ch. xx. ; Angell & 
 Ames, sec. 769; and particularly Rex v. 
 Morris and Rex v. Stewart, 3 East, 213 ; 
 4 East, 17. In Rex v. Passmore, 3 Term 
 R. 241, where the subject was much con- 
 sidered. Lord Kenyon observed, "When 
 an integral part of a corporation is gone, 
 without whose existence the functions of 
 the corporation cannot be exercised, and 
 the corporation has no manner of supply- 
 ing the integral part, the corporation is 
 dissolved as to certain purposes. But the 
 king may renovate either with the old or 
 new corporators." 
 
 The leading authorities respecting the 
 
194 MUNICIPAL CORPORATIONS. [OH. VII. 
 
 3. -By a surrender of the franchise of being a corporation to the 
 crown, whose acceptance is necessary ; and to be effectual the 
 surrender must be enrolled in chancery. The power to surrender 
 has been much questioned ; the argument in favor of it being, 
 that since b}' royal grant and acceptance a corporation may be 
 created, so by surrender and acceptance it may be annulled. It 
 is admitted, however, that a corporation created or confirmed by 
 parliament or statute cannot dissolve itself by a surrender of its 
 charter or franchise.^ «> 
 
 4. By forfeiture of its charter, through negligence or abuse of 
 its franchise, judicially ascertained by proceedings in quo warranto 
 or scire facias. This mode of dissolution proceeds upon the doc- 
 trine, well settled as to private corporations, both in England and 
 in this country, and perhaps settled in that country, also, as re- 
 spects the old municipal corporations when created by royal 
 charter, that there is a tacit or implied condition annexed to the 
 grant of every act or charter of incorporation that the grantees 
 shall not neglect to use or misapply the powers granted, and 
 that if they do, the condition is broken upon which the corpora- 
 tion was created, and the corporation thereupon ceases to exist. 
 And in the cases in the time of Charles II. it was held that the 
 corporation might forfeit its franchise by reason of the neglect or 
 misconduct of its officers.'^ 
 
 effect of the loss of an integral part are, 1 v. Miller, 6 T. R. 277 ; Willc. 332, pi. 861 ; 
 
 Rol. Abr. 614 ; Regina t>. Bewdley, 1 P. Howard's Case, Hutt. 87 ; Grant on Corp. 
 
 Wms. 207 ; Banbury's Case, 10 Mod. 306, 308 ; Thicknesse v. Canal Co., 4 M. 
 
 346 ; Rex v. Tregony, 8 Mod. 129 ; Col- & W. 472. 
 
 Chester v. Seaber, 3 Burr. 1870; s. c. 1 » Black's Com. 486; 2 Kyd, 447; Willc. 
 
 Wm. Bl. 591, which, however, is said not ch. vii. 825, et seq. ; Taylors of Ipswich, 1 
 
 to be a case of the loss of an integral Rol. 5 ; Rex v. Grosvenor, 7 Mod. 199 ; 
 
 part, but of magistrates. Grant Corp. Smith's Case, 4 Mod. 55, 58 ; s. c. 12 
 
 305, note ; Rex v. Passmore, 3 Term R. Mod. 17 ; Skin. 311 ; 1 Show. 278 ; Rex 
 
 241. The foregoing cases are succinctly v. Saunders, 3 East, 119 ; Mayor, etc. of 
 
 stated by Mr. Kyd, 2 Corp. ch. v. See, Lyme v. Henley, 2 CI. & F. 331 ; Rex v. 
 
 also. Mayor, etc. of Colchester v. Brooke, Kent, 13 East, 220 ; Priestly v. Foulds, 2 
 
 7 Queen's B. 383, and Mr. Justice Camp- Scott, N. R. 205, 225 ; Attorney General 
 
 bell's learned opinion in Bacon v. Robert- v. Shrewsbury, 6 Beav. 220. See refer- 
 
 son, 18 How. (U. S.) 480,1855; infra, sec. ence argxundo to subject of forfeiture of 
 
 169, note ; People v. Wren, 4 Scam. (5 111. ) municipal charter in Whalen v. Macomb, 
 
 275, citing and relying on Colchester v. 76 III. 49, 1875. The American cases 
 
 Seaber, supra ; Smith's Case, 4 Mod. 53 ; relating to the dissolution of private cor- 
 
 Smith ». Smith, 3 Desaus. (S. C.) 557; porations by forfeiture of their charters ; 
 
 Welch V. Ste. Genevieve, 1 Dillon C. C. what will constitute sufficient ground of 
 
 130 ; chapters on Corporate Officers and forfeiture ; and the mode of proceeding 
 
 Corporate Meetings, post. to ascertain and enforce the forfeiture, 
 
 > Rex ». Osbourne, 4 East, 826 ; Rex are collected, and the result very clearUr 
 
§ 166.] DISSOLUTION. 195 
 
 In the United States. 
 
 § 166. (110) These various modes of dissolution, except the 
 first, are believed by the author to be inapplicable to municipal 
 corporations in this country as they are generally created and 
 constituted. Here it is the people of the locality who are erected 
 into a corporation, not for private, but for public purposes. The 
 corporation is mainly and primarily an instrument of government. 
 The officers do not constitute the corporation, or an integral part 
 of it. The existence of the corporation does not depend upon 
 the existence of officers. The qualified voters or electors have, 
 indeed, the right to select officers, but they are the mere agents 
 or servants of the corporation, and hence the doctrine of a disso- 
 lution by the loss of an integral part has, in such cases, no place. 
 If all the people of the defined locality should wholly remove 
 from or desert it, the corporation would, from necessity, be sus- 
 pended or dormant, or perhaps entirely cease ; but the mere 
 neglect or mere failure to elect officers will not dissolve the cor- 
 poration, certainly not while the right or capacity to elect re- 
 mains.^ In this respect municipal corporations resemble ordinary 
 
 and satisfactorily stated, in Angell & ^ Willc. ch. vii. and obserrations at pp. 
 Ames on Corporations, cli. xxii. See, 326, 326, 327, pi. 852; Colchester !». Sea- 
 also, 2 Kent Com. 305. Pricate corpora- ber, 3 Burr. 1866; Colchester v. Brooke, 
 tions may lose their legal existence, 1. 7 Queen's B. 383; Eex v. Passmore, 8 
 By the act of the legislature ; 2. By the Term R. 241 ; Grapt on Corp. 308 ; Ba- 
 death of all their members ; 3. By a for- con v. Robertson, 18 How. 480 ; Lowber 
 feiture of their franchises, and 4. By a ». Mayor, etc. ofNew York, 5 Abb. Pr. 325; 
 surrender of their charter. No other Clarke v. Rochester, 75. 107 ; Welch «. 
 mode of dissolution is anywhere alluded Ste. Genevieve, 1 Dillon C. C. 130, 1871. 
 to. Boston Glass Manuf. v. Langdon, 24 That the/aj7«re to elect officers does not dis- 
 Pick. 49, 52, per Morton, J. ; Common- solve, while the capacity to elect remains, 
 wealth V. Union Ins. Co., 5 Mass. 230, see, also, Philips v. Wickam, 1 Paige Ch. 
 232; Riddle V. Locks and Canals, 7 Mass. 690; Commonwealth ». CuUen, 1 Harris 
 169; School t>. Canal, etc. Co., 9 Ohio, (Pa.), 133; President v. Thompson, 20 
 203 ; Canal Co. v. Railroad Co., 4 Gill & 111. 197 ; Rose v. Turnpike Co., 3 Watts 
 Johns. 1 ; Vincennes University u. Indi- (Pa.), 46 ; People v. Wren, 4 Scam. (5 
 ana, 14 How. 268. III.) 275; Brown v. Insurance Co., 3 La. 
 Mr. Grant, in his work on Corpora- An. 177 ; Welch v. Ste. Genevieve, supra ; 
 tions, considers it doubtful whether an Green Township, 9 Watts & S. (Pa.) 28 ; 
 information in the nature of quo warranto Vincennes University v. Indiana, 14 How. 
 will lie, in England, against parliamen- 268 ; Muscatine Turnverein v. Funck, 18 
 tary or statute corporations, for usurping Iowa, 469. In Lea v. Hernandez, 10 Tex. 
 powers not given, or misusing those con- 187, 1853, it appeared that a place was in- 
 ferred (Corp. 307, 308; Eex w. Nicholson, corporated as a town prior to 1848, that 
 1 Str. 299); but in this country, the law as in the year just named the legislature 
 to private corporations is indisputably passed an act to incorporate the town, and 
 settled, that in such cases an information that no election for oflScers nor any or- 
 may be brought. ganization was had thereunder for three 
 
196 MUNICIPAL CORPOBATIONS. [C3H. VII. 
 
 private corporations, which exist f&r se, and consists of the stock- 
 holders who compose the company. The oflBcers are their agents 
 or servants, but do not constitute an integral part of their corpo- 
 ration, the failure to elect whom may suspend the functions, but 
 will not dissolve the corporation.^ 
 
 § 167. (Ill) Since all of our charters of incorporation come 
 from the legislature,^ there can be no dissolution of a municipal 
 corporation by a surrender of its franchise. The state creates 
 such corporations for public ends, and they will and must continue 
 until the legislature annuls or destroys them, or authorizes it to 
 be done. If there could be such a thing as a surrender, it would, 
 from necessity, have to be made to the legislature, and its accep- 
 tance would have to be manifested by appropriate legislative 
 action. 
 
 § 168. (112) The doctrine of a forfeiture of the right to be a 
 corporation has also, it is believed by the author, no just or proper 
 application to our municipal corporations.^ If 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 tbe other 
 hand, acts done beyond the powers granted are void.^ If private 
 rights are threatened or invaded, the courts will, as hereafter 
 shown, restrain or redress the injury.® With what surprise would 
 we hear of a proceeding to forfeit the charter of the city of New 
 York or Chicago because of the misconduct of its officers, or 
 because the common council, as in the famous case against th& 
 
 years and down to the commencement of Wend. 693. Further, see chapters relat- 
 
 tbe action, nor were there any officers de ing to Corporate Officers and Corporate 
 
 faiOo acting. The court held that the fail- Meetings, post. 
 
 ure to elect officers operated to dissolTe ^ Angell & Ames on Corp. sec. 771, 
 
 the corporation, there being no express and cases there cited ; People v. Fairbury, 
 
 provision of the charter to the contrary. 51 111. 149, 1869. 
 
 But no authorities are cited and no rea- ^ Ante, sees. 87, 43, 54. 
 
 sons given, and the conclusion that an ' See Welch v. Ste. Genevieve, 1 Dil- 
 
 actual dissolution of the corporation re- Ion C. C. 180, 1871, arguendo. 
 
 suited from a failure to elect, is believed ^ Ante, ch. v. sec. 98 ; post, chapter on 
 
 to be unsound. Mandamus. 
 
 The existence of a municipal corpora- ^ Ante, sec. 89, and notes, 
 
 tion is not considered to be interrupted in ' See chapter on Remedies to prevent, 
 
 consequence of a change in the council, correct, and redress Illegal Corporate 
 
 Elmendorf v. Bwen, 2 N. Y. Leg. Obs. 85 ; Acta, post, sees. 906 - 984. 
 Elmendorf v. Mayor, etc. of New York. 25 
 
§ 169.] DISSOLUTION. 197 
 
 city of London, were assuming to exercise unauthorized powers 
 by ordaining an oppressive by-law. In short, unless otherwise 
 specially provided by the legislature, the nature and constitution 
 of our municipal corporations, as well as the purposes they are 
 designed to subserve, are such that they can, in the author's judg- 
 ment, only be dissolved by the legislature.^ They may become 
 inert or dormant, or their functions may be suspended, for want 
 of officers 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 the officers or inhabitants of the incorporated place. 
 As they can exist only by legislative sanction, so they cannot be 
 dissolved or cease to exist except by legislative consent or pur- 
 suant to legislative provision. 
 
 Effect of Dissolution. 
 
 § 169. (113) At common law, a corporation, of whatever kind, 
 
 which was wholly dissolved, was considered to be civilly dead ; 
 
 and the effect was that their lands reverted to the grantor or his 
 
 heirs, and the debts of the corporation, whether owing to or by it, 
 
 were extinguished. Leases made by the corporation would cease 
 
 because of the reversion of the lands to the original owners ; and, 
 
 for the same reason, lands given to or held by the corporation 
 
 for charitable purposes would be lost.^ These inconveniences 
 
 and results are so disastrous that the English courts, as the more 
 
 recent cases before cited will show, have doubted and limited, 
 
 although they may not have overthrown the doctrine that muni- 
 
 1 Municipal corporations are within to municipal corporations. lb. In Ten- 
 the absolute control of the legislature, nessee the legislature may reserve to 
 and may be abolished at any time in its itself the right to directly impose the ne- 
 discretion, and an act which repeals the cessary taxes for the support of municipal 
 charter of a single municipal corporation corporations. lb. Further on the sub- 
 is constitutional. Luehrman v. Taxing ject of legislative extinction of corporations 
 District of Shelby Co., 2 Lea (Tenn ), and its effect on creditors, post, sees. 178, 
 426. An act which grants municipal 186, et seq., and the chapter on Contracts, 
 franchises to the communities within the ^ Co. Litt. 13; 1 Lev. 237; Knight v. 
 territorial limits of certain districts in Wells, 1 Lut. 519 ; Rex v. Sanders, 3 East, 
 order to provide the means of local gov- 119 ; Attorney General v. Gower, 9 Mod. 
 emment, and creates the " agencies and 226 ; 1 Rol. Abr. 816 ; Colchester v. Sea- 
 governing instrumentalities " of a muni- ber, 3 Burr. 1866 ; Willc. 330, pi. 858 ; 8 
 cipal corporation, with the usual legisla- Kyd, 516 ; Rex v. Passmore, 3 Term R. 
 tive, executive, and judicial powers, 247 ; Grant Corp. 305 ; Colchester v. 
 although it may style the creations Brooke, 7 Queen's B. 383 ; Common- 
 " Taxing Districts " in reality organizes wealth o. Roxbury. 9 Gray, 510, note, 
 the people and territory of the district in- 
 
198 
 
 MUNICIPAL CORPOKATIONS. 
 
 [CH. Vlt 
 
 cipal corporations may be totally dissolved. These consequences 
 of a dissolution of a corporation attached to all corporations, 
 eleemosynary, municipal, and private ; and since this doctrine 
 has, in this country, been generally rejected as to private coi'po- 
 rations organized for pecuniary profit, and rests upon no founda- 
 tion in reason or justice, it may, perhaps, be safely afiirmed that 
 it would not, on full consideration, be applied to the dissolution 
 of a municipal corporation by an absolute and unconditional 
 repeal of its charter, or to the case «where the charter of such a 
 corporation is forfeited, if that may be done, by judicial sentence. 
 Therefore, the leases of a corporation would not be disturbed 
 by its dissolution, nor would their lands held in fee revert, nor 
 would those held in trust for charitable purposes be lost, since 
 equity would supply trustees.* 
 
 1 Ante, sees. 64, 80 ; chapters on Corpor- 
 ate Bouudarles and Property, post. Bacon 
 V. Robertson, 18 How. (U. S.) 480, 
 1855 ; Girard w. Philadelphia, 7 Wall. 1, 
 1868 ; Mumma «. Potomac Co., 8 Pet. . 
 281, 1834 J Curran v. Arkansas, 15 How. 
 (U. S.) 312; 2 Kent, 307, note; Angell 
 & Ames Corp. 779a ; Coulter v. Eobert- 
 son, 24 Miss. 278; County Commrs. v. 
 Cox, 6 Ind. 403 ; State ». Trustees, etc., 
 5 Ind. 77 ; Vinoennes University v. Indi- 
 ana, 14 How. 268 ; Owen v. Smith, 31 
 Barb. 641 ; Commonwealth v. Roxbury, 
 9 Gray, 510, note. 
 
 The general subject of the effa^ of a 
 dissolution of a corporation is extensively 
 discussed by Mr. Justice Campbell, in 
 Bacon v. Robertson, supra. The case 
 was a bill in chancery by the stockhold- 
 ers of a bank, whose charter had been 
 judicially forfeited, for a distribution of 
 the surplus after the payment of the 
 debts, and the relief was granted. The 
 Supreme Court of the United States 
 seemed to be of opinion that, upon the 
 general principles of equity jurisprudence, and 
 without statutory aid, the surplus of the 
 assets of a corporation for pecuniary 
 profit, after the payment of debts and ex- 
 penses, belonged to the shareholders; 
 that the creditor of such a corporation, 
 dissolved or declared forfeited by judg- 
 ment upon quo warranto or judicial sen- 
 tence, has, without a statute to that 
 effect, a claim in equity upon the corpor- 
 ate property for the satisfaction of his 
 
 debt ; that lands conveyed to the corpor- 
 ation in fee and for a full price do not re- 
 vert, and that the stockholder, as to the 
 surplus after paying the debts, stands 
 upon grounds as high and has claims as 
 irresistible as the creditor before had. 
 The usual consequences of a dissolution, 
 as stated by the text-writers, if correct, 
 which was doubted, were deemed inap- 
 plicable to moneyed or trading corpora- 
 tions. 
 
 In the course of his admirable opinion, 
 the learned justice observed : " The 
 common law of Great Britain was defi- 
 cient in supplying the instrumentalities 
 for a speedy and just settlement of the 
 affairs of an insolvent corporation whose 
 charter had been forfeited by judicial 
 sentence. The opinion usually expressed 
 as to the effect of such a sentence was 
 unsatisfactory and questioned. There 
 had been instances in Great Britain of 
 the dissolution of public or ecclesiastical 
 corporations by the exertion of public 
 authority, or as a consequence of the 
 death of their members ; and parliament 
 and the courts had affirmed, in these in- 
 stances, that the endowments they had 
 received from the prince or pious found- 
 ers would revert in such a case." Stat, de 
 Terris Templariorum, 17 Edw. II. ; Dean 
 and Canons of Windsor, Godb. 211; 
 Johnson v. Norway, Winch. 37 ; Owen, 
 73 ; 6 Vin. Abr. 280. What was to be- 
 come of their personal estate, and of 
 their debts and credits, had not been set- 
 
§ 170.] 
 
 DISSOLUTION, 
 
 199 
 
 § 170. (114) As respects the creditors of a municipal corpora- 
 tion, their rights are protected from the legislative invasion by 
 the Constitution of the United States, and no repeal of a charier 
 of a municipal corporation can so dissolve it as to impair the 
 obligation of the contract, or, it ma}' probably be safely added, 
 preclude the creditor from recovering his debt.^ 
 
 tied in any adjudicated case, and, as was 
 said by Pottexfen in the argument of tlie 
 quo vxirranto against the city of London, 
 was, perhaps, " non definitur injure." ( See 
 ante, Introductory Chapter, sec. 8.) Solic- 
 itor Finch, who argued for the crown in 
 tliat cause, admitted : " I do not find any 
 judgment in a quo warranto of a corpora- 
 tion being forfeited." Treby, on behalf 
 of the city, said : " The dissolving a cor- 
 poration by a judgment in law, as is here 
 sought, I believe is a thing that never 
 came within the compass of any man's 
 imagination till now ; no, not so much as 
 the putting of a case. For in all my 
 search (and upon this occasion I have be- 
 stowed a great deal of time in searching) 
 I cannot find that it even so much as en- 
 tered into the conception of any man be- 
 fore ; and I am the more confirmed in it 
 because so learned a gentleman as Mr. 
 Solicitor has not cited any one such case 
 wherein it has been (I do not say ad- 
 judged, but) even so much as questioned 
 or attempted; and, therefore, I may 
 very boldly call this a case primes impres- 
 sionis." The argument of PoUexfen was 
 equally positive. 
 
 The power of courts to adjudge a for- 
 feiture so as to dissolve a corporation 
 was afSrmed in that case, but the effect 
 of that judgment was not illustrated by 
 any execution, and the courts were re- 
 lieved from their embarrassment by an 
 act of parliament annulling it. Smith's 
 Case, 4 Mod. 53; Skin. 310; 8 St. Trials, 
 1042, 1052, 1283. Nor have the discus- 
 sions since the revolution extended our 
 knowledge upon this intricate subject. 
 The case of Rex v. Amery, 2 Term R. 
 515, has exerted much influence upon 
 text-writers. The questions were, wheth- 
 er a judgment of seizure quosque upon a 
 default was final, and, if bo, whether the 
 king's grant of pardon and restitution 
 would overreach and defeat a charter 
 granting to a new body of men the same 
 
 liberties, intermediate the seizure and 
 the pardon. The king's bench, relying 
 upon the Year-Book, discovered that it 
 did not support the conclusion drawn 
 from it, and Chief Baron Eyre says that 
 " Lord Coke had adopted the doctrine too 
 hastily." The discussions upon this 
 case show how much the knowledge of 
 the writ of quo warranto, as it had been 
 used and applied under the Planlageneta 
 and Tudors, had gone from the memories 
 of courts and lawyers. 4 Term B. 122; 
 Tan. on Quo. War. 24. In Colchester v. 
 Seaber, 3 Burr. 1866, where the suit was 
 upon a bond, and the defence was that 
 certain facts had occurred to dissolve the 
 corporation, and that the creditor's claim 
 was extinguished on the bond, Lord 
 Mansfield said, " Without an express 
 authority, so strong as not to be gotten 
 over, we ought not to determine so much 
 against reason as that parliament should 
 be obliged to interfere. The question 
 occurs here, Could parliament interfere ? 
 And the answer would be by their 
 authorizing a suit to be brought, not- 
 withstanding the dissolution. These are 
 all cases of municipal corporations where 
 the corporators had no rights in the prop- 
 erty of the corporation in severalty." 
 
 1 Ante, ch. iv. passim ; particularly, sec. 
 69; post, sees. 171, 186-189; Cooley 
 Const. Lim. 290, 292 ; Curran i: Arkansas, 
 15 How. (U. S.) 312; Bacon v. Robert- 
 son, supro; 2 Kent, 807, note; Brough- 
 ton ». Pensacola, 93 U. S. 266, 1876; ob- 
 servations of Field, J., p. 269 ; Milner's 
 Admx. 0. Pensacola, 2 Woods, 32, 642, 
 1875, quoting text ; Indianapolis v. India- 
 napolis Gas Co., 66 Ind. 396, approving 
 text; County Commrs. v. Cox, 6 Ind. 403 ; 
 State V. Trustees, 5 Ind. 77; Coulter v. 
 Boberson, 24 Miss. 278 ; Gelpecke v. Du- 
 buque, 1 Wall. 175, 1865; Von Hoffman 
 V. Quincy,4 Wall. 535 ; Welch v. Ste. Gen- 
 evieve, 1 Dillon C. C. 130 ; Thompson v. 
 Lee County, 3 Wall. 327 ; Havemeyer v. 
 
200 
 
 MUNICIPAL CORPOEATIONS. 
 
 [CH. VII. 
 
 § 171. (115) The name of an incorporated place may be 
 changed, its boundaries enlarged or diminished, and its mode of 
 government altered, and yet the corporation not he dissolved, hut 
 in law remain the same.^ 
 
 § 172. Accordingly, the substitution of a new municipal charter 
 in the place of a previous charter, or a change in such a charter 
 in whole or in part, where substantially the same territory and 
 the same inhabitants are concerned, \j;ill not be presumed to be 
 the creation of a new corporation, but the assumption by the old 
 one of new powers and privileges. And where the rights of 
 creditors are involved, the presumption is extremely strong that 
 the identity of the corporation continues, notwithstanding differ- 
 ent powers are possessed by the new organization and different 
 officers administer its affairs.^ 
 
 Iowa County, 3 Wall! 294 ; Butz v. Mus- 
 catine, 8 Wall. 575 ; Lansing v. Treasurer, 
 etc., 1 Dillon C. C. 522 ; Soutter v. Madi- 
 son, 15 Wis. 30 ; Smith v. Appleton, 19 
 Wis. 468 ; Blake v. Railroad Co., 39 N. 
 H. 435 ; compare Kichmond Gaslight Co. 
 ». Middletown, 59 N. Y. 228, 1874 ; post, 
 692. The dissolution of a private corpor- 
 ation by authorized legislative act or 
 judicial sentence, does not impair the 
 obligation of a contract any more than 
 the death of a private person impairs the 
 obligation of his contract. This doctrine 
 was based upon two grounds : First, the 
 obligation survives, and the creditors may 
 enforce their claims against any property 
 belonging to the corporation which has 
 not passed into the hand of bona fide pur- 
 chasers; second, every creditor is pre- 
 «umed to contract with reference to a 
 possibility of the dissolution of a corpor- 
 ate body. Mumma v. Potomac Co. (hold- 
 ing that on sci.fa. a judgment could not 
 be revived, or costs adjudged, against a 
 corporation legislatively annulled), 8 Pet. 
 (U. S.) 281, 1834. In the case of the 
 town of Port Gibson v. Moore, 13 Sm. & 
 Marsh. (21 Miss.) 157, 1849, it was held, 
 indeed, that the repeal of the charter of 
 an indebted municipal corporation dis- 
 solved it ; that such dissolution extinguished 
 debts to and from the corporation, and 
 that a subsequent act re-incorporating the 
 place did not make it liable for a debt ex- 
 
 isting anterior to the act repealing its 
 charter. The court overlooked the con- 
 stitutional provision protecting contracts, 
 and the case as to the effect of a dissolu- 
 tion upon the rights of creditors seems to 
 conflict with those above cited. See fur- 
 ther, as to extinguishment of debts by 
 dissolution of corporation, Mallory ti. 
 Mallett, 6 Jones Eq. 845; Hopkin3 v. 
 Whitesides, 1 Head (Tenn.), 31 ; Bank ». 
 Lock wood, 2 Harring. (Del.) 8; Robinson 
 t). Lane, 19 6a. 337; Muscatine Tum- 
 verein ». Funck, 18 Iowa, 469 ; Owen v. 
 Smith, 31 Barb. 641 ; Welch v. Ste. Gene- 
 vieve, 1 Dillon C. C. 130 ; Thompson .v. 
 Abbott, 61 Mo. 176, 1875; Barclay v. 
 Levee Commrs., 93 U. S. 258, 1876; 
 Broughton v. Pensacola, 03 U. S. 266, 
 1876 ; post, ch. xiv. 
 
 1 Ante, sec. 85, and cases cited; post, 
 ch. viii. sees. 176, 177 ; and see ante, ch. 
 iv., where the extent of the legislative 
 authority over municipal corporations is 
 considered. Broughton v. Pensacola, 93 
 U. S. 266, 1876. 
 
 2 Broughton y. Pensacola, 93 V. S. 
 266, 1876 ; approving Milner's Admx. ». 
 Pensacola, 2 Woods, 632 ; ante, sec. 85, 
 and cases cited; infra, sec. 173; post, 
 sees. 176, 177. 
 
 In delivering the judgment of the 
 court in Broughton v. Pensacola, Mr. Jus- 
 tice Field observes : — 
 
 "Although a municipal corporation, so 
 
§ 173.] DISSOLUTION. 201 
 
 § 173. The case contemplated in the preceding section, in 
 which, in the absence of a plain statute provision to the contrary, 
 the continuous legal existence and identity of a municipalitt/ will be 
 presumed, where substantially the same inhabitants and the same 
 territory are concerned, notwithstanding a change in boundaries 
 and form of organization has taken place, is one of quite common 
 occurrence and easy solution. But suppose the legislature abso- 
 lutely repeals the charter or constituent act of an indebted muni- 
 cipality, and makes no provision for the payment of its debts, 
 or, instead of an absolute repeal, it makes such changes as do not 
 relate substantially to the same inhabitants and the same terri- 
 tory, as for example supersedes or dissolves the indebted munici- 
 pality, and annexes what constituted its territory and people to 
 other municipalities, and makes no provision for its debts or their 
 mode of payment. Is the creditor remediless except by an ap- 
 peal to the legislature ? Or, in such a case, may a court of equity 
 in analogy to its jurisdiction over insolvent or dissolved private 
 corporations, assume jurisdiction and grant relief to the creditor 
 to the extent of its power and of his legal rights? These are 
 difficult questions. It is certain, however, that where a munici- 
 pality under legislative authority has created a valid debt, no 
 
 far as it is invested with subordinate organized under a new charter, taking in 
 
 legislative powers for local purposes, is a its new organization the place of the old 
 
 mere instrumentality of the state for the one, embracing substantially the same 
 
 convenient administration of government; corporators and the same territory, it 
 
 yet, when authorized to take stock in a will be presumed that the legislature in- 
 
 railroad company, and issue its obliga- tended a continued existence of the same 
 
 tions in payment of the stock, it is to that corporation, although different powers 
 
 extent to be deemed a private corpora- are possessed under the new charter, and 
 
 tion, and its obligations are secured by all different officers administer its affairs ; 
 
 the guaranties which protect the engage- and in the absence of express provision 
 
 ments of private individuals. The inhi- for their payment otherwise, it will also 
 
 bition of the constitution, which pre- be presumed in such case that the legis- 
 
 serves against the interference of a state lature intended that the liabilities as well 
 
 the sacredness of contracts, applies to the as the rights of property of the corpora- 
 
 liabilities of municipal corporations ere- tion in its old form should accompany the 
 
 ated by its permission ; and although the corporation in its reorganization." See 
 
 repeal or modification of the charter of a and compare Barclay v. Levee Commrs., 
 
 corporation of that kind is not within the 93 U. S. 258, where a levee district — a 
 
 inhibition, yet it will not be admitted, juosi public corporation — was superseded 
 
 where its legislation is susceptible of in its functions by a law dividing the 
 
 another construction, that the state has district and creating a, new corporation 
 
 in this way sanctioned an evasion of or for one portion and placing the other 
 
 escape from liabilities, the creation of under the charge of the local authorities 
 
 which it authorized. When, therefore, a and where under the circumstances a 
 
 new form is given to an old municipal judgment creditor was held to be without 
 
 corporation, or such a corporation is re- legal remedy. 
 
202 MUNICIPAL COEPOKATIONS. [CH.. Vlt 
 
 repeal or change in its ciiarter can, in consequence of the contract 
 clause of the constitution, have the effect to extinguish the debt 
 or even to impair its obligation. ^ Such repeal or change, so far 
 as the political rights and condition of the municipality are con- 
 cerned, is valid and effectual. This may destroy the power of 
 the creditor to enforce his rights at law, since no officers may 
 remain on whom process can be served. Such appears to be the 
 logical consequence of the acknowledged supremacy of the legis- 
 lature over public and municipal cojporations.^ But it is clear 
 that the obligation of the contract remains. It is clear, also, that 
 the great and almost only resource of a municipality to pay its 
 debts is the power of taxation. In cases of municipal bonds it is 
 ordinarily provided that a special tax shall be levied on the prop- 
 erty within the municipality, subject to taxation sufficient to pay 
 the interest and principal. It seems clear that this power cannot 
 be taken away or substantially impaired. It has been so decided.^ 
 Where the legislature has repealed a municipal charter, or super- 
 seded a municipality by dissolving it or destroying its identity, 
 without making provision for its debts, one of three results must 
 follow : 1. Either the act which does this is wholly void and 
 inoperative, from which it would result that the legal existence 
 and identity of the indebted municipality will remain ; or, 2. The 
 creditor is without remedy except by an appeal to the legislature ; 
 or, 3. Equity will assume jurisdiction, treating the property sub- 
 ject to taxation as a fund out of which the creditor is entitled to 
 payment, and will order the officers of the new organizations, 
 within which such property is situate, to levy thereon the neces- 
 sary taxes to pay the creditor. This last result, although supposed 
 by some to be inconsistent with views expressed by the Supreme 
 Court, in cases where the precise question now under considera- 
 tion was not in judgment* has been judicially sanctioned by the 
 United States Circuit Court for Wisconsin ; ^ and where the cir* 
 
 1 Ante, sees. 69, 70, 170, and cases * Rees v. Watertown, 19 Wall. 107, 
 cited; Broughton v. Fensacola, 93 U. S. 1873; Heine v. Levee Commrs., 19 Wall. 
 266, 1876, and language of Fidd, J., 655, 1873 ; Walkley o. Muscatine, 6 Wall, 
 quoted, ante, sec. 172, note ; Mumma ii. 481, 1867 ; Barclay v. Levee Commrs., 
 Potomac Co., 8 Pet. 281, 1884. 93 U. S. 258, 1876. 
 
 2 Arde, ch. iv. and cases there cited. ' Beckwith v. Racine, 7 Bissell, 142, 
 Pos(, ch. viii. sec. 185, ei se?., as to legls- 1876, Drummond and Dyer, 33. The 
 lative power on division and re-organiza- point decided may be briefly stated thus : 
 tion of public and municipal corporations. Where a municipality owing railroad 
 
 ' Von Hoffman B. Quinoy, 4 Wall. 585, aid bonds, which It was provided by 
 1866 ; ante, sees. 69, 70. statute should be paid by an annual tax 
 
§ 174.] 
 
 DISSOLUTION. 
 
 203 
 
 cumstances are such as that equity can clearly afford a practicable 
 remedy without doing injustice to others, it is based upon con- 
 siderations which commend themselves to the sense of universal 
 justice. This view, since the foregoing was written, has received 
 the sanction of the Supreme Court of the United States.^ 
 
 It is usual, however, for the legislature, on the change or division 
 of municipal and public corporations, to make provision concern- 
 ing existing indebtedness; and its power to do so, unless restrained 
 by special constitutional provision, is clear and ample.^ 
 
 § 174. (116) It is the doctrine of the English courts that where 
 the functions of an old corporation are suspended, or where the 
 corporation, by loss of all its members, or of an integral part, is 
 dissolved as to certain purposes, it may be revived by a new char- 
 ter, and the rights of the old corporation be granted over to the 
 same, or a new set of corporators, who in such case take all the . 
 rights and are subject to all the liabilities of the old corporation, 
 of which it is but a continuation.^ 
 
 upon the property within it, was legis- 
 lated out of existence and the territory 
 was included in three other municipalities 
 without any provision being made in 
 respect to the payment of tlie bonds, it 
 was held that the legislature had the 
 power to make these changes, but that 
 the obligations of the contract and the 
 power of taxation still remained. It was 
 further held that in consequence of these 
 clianges the creditor could not sue at law, 
 as service of process on the old corpora- 
 tion could not be made, but that equity 
 would give the creditor a remedy by re- 
 quiring the existing corporations, within 
 whose boundaries the property included 
 in the old is situate, to levy the necessary 
 taxes to pay the debt in proportion to 
 the amount of territory each obtained. 
 See Mount Pleasant v. Beckwith, 100 U. S. 
 514, 1879 ; post, sec. 186. 
 
 1 Mount Pleasant v. Beckwith, 100 U. 
 S. 514, 1879; post. sec. 186. 
 
 2 Post, sees. 185, 187, 188. When two 
 municipal corporations (St. Anthony and 
 Old Minneapolis) were merged, by legisla- 
 tive act, into a new corporation, it was 
 held that the new corporation, hy force of 
 provisions in the act, was liable for a tort, 
 for which one of the constituent corpora- 
 
 tions would have been responsible if the 
 merger had not taken place. Adams v. 
 Minneapolis, 20 Minn. 484, 1874. 
 
 * Kex V. Passmore, 8 Term R. 119, 
 247 ; Regiria v. Bewdley, 1 P. Wms. 207 ; 
 Colchester v. Brooke, 7 Queen's Bench, 
 883 ; Colchester v. Seaber, 3 Burr. 1866 ; 
 Grant on Corporations, 304 and note; 2 
 Kyd, 516. Whether a statute, or legisla- 
 tive charter will operate to revive or 
 continue an old, or to create a new and 
 distinct corporation, depends upon the- in- 
 tention of the legislature. Ante, ch. v.; 
 Bellows V. Bank, etc., 2 Mason C. C. 
 43, per Stori/, J. ; Angell & Ames, sec. 
 780; Grant on Corporations, 304, 305; 
 Hoffman ». Van Nostrand, 42 Barb. 174 j 
 Glrard v. Philadelphia, 7 Wall. 1 ; Ohiey 
 V. Harvey, 50 111. 453, 1869 ; supra, sees. 
 171, 172, 173 ; post, sees. 176, 177 ; Neely v. 
 Yorkville, 10 So. Car. 141. Approving 
 text, as to whom the revenue is to be 
 paid on the dissolution of a corporation in 
 New Jersey. See Heckel v. Sandford, 40 
 N. J. L. 180. 
 
 The late civil war did not suspend the 
 right to the exercise of the franchises ot 
 an incorporated town within the lines 
 of the insurrectionary forces, and it 
 might still make valid contracts, notwith- 
 
204 MUmCIPAL COKPOEAHONS. [CH, vin. 
 
 CHAPTER VIII. 
 
 OOBPOBATE KAMB, BOUNDABIBS, AJSD SBAI>. 
 
 Corporate Name. 
 
 § 175. (IIT) Every corporation must have a name. This is 
 essential to distinguish it from other corporations. In England, 
 before the Municipal Corporations Act of 5 and 6 Will. IV. ch. 
 Ixxvi. 1835,^ such corporations obtained their name by having it 
 expressed in their charter (whether royal or parliamentary), or 
 •by usage or by implication.* If a particular name be given to a 
 corporation in its charter, the corporation can no more change 
 it at its pleasure than a man can at pleasure change his baptismal 
 name. If no name be given to a corporation by its charter or 
 by statute, it may obtain one by implication. Where a corpora- 
 tion exists by prescription, it may have more than one name, but 
 the names, to be recognized as valid, must be prescriptive, and 
 cannot be acquired by usage within the time of memory. It has 
 been decided, in England, that a corporation may have one name 
 by prescription and another by grant ; but it is said that the 
 same corporation cannot, at the same time, have two different 
 names by different grants, for the name in the last grant will 
 take the place of the other.* 
 
 § 176. (118) But the Municipal Corporations Act, just men- 
 tioned, which changed the corporate constitution of the cities, 
 towns, and boroughs of England and Wales, and reduced them 
 to an uniform model, made this provision as to the name of the 
 
 «tanding it was under the control of the Dig. Francli. F. 9 ; per Holt, 1 Salic. 191 ; 
 
 insurgent power. Selma v. Mullen, 46 1 Str. 614 ; Smith v. Railroad Co., 
 
 Ala. 411, 1871. 80 Ala. 650, 1857. See also, All Saints 
 
 1 Ante, see. 36, and note. Church v. Lovett, 1 Hall (N. Y.), 191 ; 
 
 * Glover, 52,53; Willc. 35; Grant, 50; Manufacturing Co. v. Davis, 14 Johns. 
 
 ante, sec. 42, As to usage, see ante, ch. 238 ; Middlesex, etc. v. Davis, 3 Md. 
 
 y. sec. 92 133 ; Trustees v. Peaslee, 16 N. H. 817 ; 
 
 « Knight V. Wells, 1 Ld. Raym. 80 ; Society, etc. v. Young, 2 N. H. 310. 
 Physicians v. Salmon, 3 Salk. 102 ; Com. 
 
§ 177.] CORPORATE NAME. 205 
 
 corporation, under the new act : " Said body, or reputed body, 
 corporate shall take and bear the name of the mayor, aldermen, 
 and burgesses of such borough, and by that name shall have 
 perpetual succession, and shall be capable, in law, by the council 
 hereinafter mentioned of such borough, to do and suffer all acts 
 which now lawfully they and their successors may do and suffer, 
 by any name or title of incorporation, so far as not altered or 
 annulled by the provisions of this act." ^ It is settled by the 
 decisions under this act that the true or proper corporate name 
 for boroughs mentioned in it is " mayor, aldermen, and burgesses 
 
 of the borough of ," and (under the interpretation clause, 
 
 sec. 142 of the act) for cities, " mayor, aldermen, and citizens of 
 
 the city of ." ^ It may also be here observed that the courts 
 
 have determined that, though this act changed the name and 
 made new and important alterations in the constitution of the 
 corporations, yet that its effect was not in any case to create a new 
 corporation, but to continue the old, with all their rights, privileges, 
 and franchises, except so far as inconsistent with the provisions 
 of the act.^ But the name mentioned in the act would doubtless 
 govern, and by that they would have to sue and be sued. 
 
 § 177. (119) Municipal Charters granted by legislative enact- 
 ment, in this countrj', almost invariably prescribe the name of the 
 corporate body thus : " The inhabitants of the city or town of 
 
 are hereby constituted a body politic and corporate, by the 
 
 name and style of ' city of ' or ' town of .' "* So the 
 
 general municipal incorporation acts usually contain aprovision 
 
 1 5 and 6 Will. IV. ch. Ixxvi, sec. S ; ■* Ante, sec. 89. Harrison Munic. 
 
 ante, sec. 35, and note. Manual, 4th ed. 11. 
 
 ' Attorney General v. Corporation of The proper corporate name of a rau- 
 
 Worcestei', 2 Phillips, 3 ; Corporation of nicipal corporation ought always to be 
 
 Rochester v. Lee, 15 Sim. 876 ; Grant, used. But it has been decided in Canada 
 
 342 ; Rawlinson, 13. that a by-law of a municipal council is 
 
 ' Corporation of Ludlow v. Tyler, 7 valid if it appear on the face of it to have 
 
 Car. & P. 537 ; Attorney General v. Wil- been enacted by a municipal body having 
 
 son, 9 Sim. 80, 48 ; Attorney General v. authority to make the by-law under the 
 
 Kerr, 2 Beav. 420, 429 ; Attorney General municipal laws. Flewellyn o. Webster, 
 
 B. Corporation of Leicester, 9 Bear. 546 6 Ohio St. 586; Hawkins v. Huron, Perth 
 
 Doe, etc. n. Norton, 11 M. & W. 913, 928. and Bruce, in re, 2 Upper Can. C. P. 72 ; 
 
 Parke, B., there said, " Though the name Fisher v. Vaughan, 10 Upper Can. Q. B. 
 
 and style of the corporation, and the mode 492; Barclay and Darlington, in re, 11 
 
 of electing members were changed, the Upper Can. Q^ B. 470 ; Brophy and Gan- 
 
 identity of the body itself was not af- anoque, 26 U. C. C. P. 290; see also 
 
 fected." Ante, ch. vii. sees. 115, 116. Gwynne v. Rees, 2 Upper Can. P. R. 282. 
 
206 MUNICIPAL COEPORATIONS. [CH. Till. 
 
 t 
 
 to the effect that " cities and towns organized or to be organized 
 thereunder, are declared to be bodies politic and corporate, under 
 
 the name and style of the city of , or town of , as the 
 
 case may be," etc. Where such an act authorized any existing 
 town or city to adopt its provisions in place of its special charter, 
 and was silent as to the corporate name after the change was 
 made, it was held that the former name was retained.^ 
 
 § 178. (120) Where a name is given to a municipal corporation 
 6y charter or statute, this cannot be changed by the act of the 
 corporation.^ But, in this country, general statutes are not un- 
 frequent, authorizing the creation of quasi corporations, without 
 making it necessary to designate the name by which a particular 
 district shall be called ; in such case it may acquire a name hy 
 reputation, and sue and be sued by such name.^ 
 
 § 179. (121) A misnomer, or variation from the precise name of 
 the corporation, in a grant or obligation by or to it, is not mate- 
 rial, if the identity of the corporation is unmistakable, either from 
 the face of the instrument or from the averments and proof.* 
 
 1 Johnson v. Indianapolis, 16 Ind. 227, York Conference v. Clarkson, 4 Halst. 
 1861. Corporate name of the city not Ch. (N. J.) 541, 1851 ; Angell & Ames, 
 judicially noticed. 76. Limits of Indian- sec. 185; Pendleton u. Bank of Kentucky, 
 apolis are fixed by public law, and public 1 Mon. 177 ; Medway Cotton Manufac- 
 records open to all. Newman v. Sylves- turing Co. ii. Adams, 10 Mass. 360 ; People 
 ter, 42 Ind. 106, 1873 ; ante, sees. 41, 83. v. Love, 19 Cal. 676; African Society ». 
 
 2 Willcock, 84, 87, 38 ; Regina v. Reg- Varick, 13 Johns. 38 ; Woolrich v. For- 
 istrar Joint Stock Cos., 10 Q.B. 839. See rest, 1 Pa. 115; Bower c^. State Bank, 5 
 Episcopal, etc. Society v. Episcopal Ark. 234 ; Pierce v. Somerworth, 10 N. H. 
 Church, 1 Pick. 372. Change of name 369; Pittsburgh b. Craft, 1 Pitts. (Pa.) 
 does not necessarily involve a change of 158, 1871 ; Douglas v. Branch Bank, etc., 
 identity. Girard v. Philadelphia, 7 Wall. 19 Ala 659. Slight variances in the use 
 1 ; ante, ch. vii. sec. 174. of corporate names, where substantially 
 
 ' School District v. Blakeslee, 13 Conn, correct, have been held immaterial even 
 
 227,1839; The Queen k. The Registrar in matters of contract. Brock District w. 
 
 of Joint Stock Cos., 10 Q. B. 839 ; Epis- Bowen, 7 Upper Can. Q. B. 471 ; The Trent 
 
 copal Charitable Society v. Episcopal and Frankford Road Co. ?;. Marshall, 10 
 
 Church, 1 Pick. 372; see further. The Upper Can. C. P. 336 ; Whitby f. Harrison, 
 
 King u. Norris, 1 Ld. Eaym. 337 ; The 18 Upper Can. Q. B. 603 ; Bruce v. Cro- 
 
 Queen v. Bailiffs of Ipswich, 2 Ld. Eaym. mar, 22 Upper Can. Q. B. 321. See also 
 
 1232, 1288, 1239. As to ywasi corpora- Mayor and Burgesses of Lynne Regis, 10 
 
 tions, ante, sec. 22, and note ; post; chapter Coke Rep. 120. 122 ; Mayor of Carlisle v. 
 
 on Actions. Blamire et al., 8 East, 487 ; The King ». 
 
 * Inhabitants v. String, 5 Halst. (N. J.) Croke, Cowp. 29 ; Beverley r. Barlow, 10 
 
 323, 1829 ; Neely v. Yorkville, 10 So. Car. Upper Can. C. P. 178 ; Goodwin and The 
 
 141, approving text; Kentucky Seminary Ottawa and Prescott Railway Co., in re, 
 
 V. Wallace, 15 B. Mon. 36, 1854 ; New 13 Upper Can. C. P. 254. It was, how- 
 
180.] COEl^OKATE NAME. 207 
 
 § 180. (122) Where the intention of the testator is clear, a 
 mistake in the name or description of the object of his bounty will 
 not make the devise void. This general principle is applicable 
 to all corporations, private and public. But the intention must 
 be so clear as to remove all reasonable doubt as to the corporation 
 meant. This rule may be illustrated by a few examples. Thus, 
 a devise to a college by its common name, though not the true 
 corporate name, is good.^ So, where the devisees were called by 
 their popular name, " The South Parish in Sutton," their legal 
 name being, " The First Parish in Sutton," the devise was sus- 
 tained.2 So, also, the " Mayor, Jurats, and Commonalty of the 
 Town of Rye," that being the corporate name, were held entitled 
 to lands by a devise to " The Right Worshipful the Mayor, Jurats, 
 and Town Council of the Town of Rye," although there was no 
 town council in the town, and although the court admitted the 
 proposition of counsel against the will, that- if the "intent ap- 
 pears to give to a part of the corporation, although that intent fails 
 of effect, the whole corporation cannot take." ^ So, also, a devise 
 to the Mayor, Chamberlain, and Grovernors, is valid to a corpora- 
 tion whose true name is Mayor, Citizens, and Commonalty.* So, a 
 
 ever, held differently as to the entitling particular corporation was intended, and 
 
 of a rule in a proceeding against a munic- that a latent ambiguity may, under proper 
 
 ipal corporation. Sams v. Toronto, 9 averments, be explained by parol evi- 
 
 Upper Can. Q. B. 181 ; Harrison Munic. dence in this as in other cases, to show 
 
 Manual, 4th ed. 11. the intention." Per Gibson, J., in Presi- 
 
 " The general rule to be collected from dent, etc. v. Myers, 6 Serg. & Rawle, 12; 
 
 the cases is," says Chancellor Kent, " that s. p. Milford, etc. Co. v. Brush, 10 Ohio, 
 
 a variation from the precise name of the 111. 
 
 corporation, when the true name is ne- When an act of parliament makes a 
 
 cessarily to be collected from the instru- grant to a corporation, it takes effect 
 
 ment, or is shown by proper averments, though the true corporate name be not 
 
 will not invalidate a grant by or to a cor- „sed, provided the corporation intended 
 
 poration, or a contract with it, and the he sufficiently identified or described. 1 
 
 modern cases show an increased liberality Kyd, 256 ; Chancellor of Oxford's Case, 
 
 on this subject. 2 Kent Com. 292 ; ap- jo Co 44 576 
 
 proved, St. Louis Hospital v. Williams, i Chancellor of Oxford's Case, 10 Co. 
 
 Administrator, 19 Mo. 609, 1854. " We gyj, 
 
 adopt the more reasonable rule laid down i First Parish in Sutton v. Cole, 3 
 
 by Mr. %d (Corp. Vol. I. pp. 286, 288), Pick. 232. 1825, and cases there cited, 
 that the variance must be materially dif- 3 Attornev General ,.. Mayor of Bye, 
 
 ferent in substance, to injure." Per Cu- 7 Taunton, 546 ; 2 Eng. Com. Law, 213, 
 
 nam, People v. Runkle, 9 Johns. 147, 1817. 
 1^''; * Owen, 35 (UEh'z.). "The devise 
 
 " I take the law of the present day to held good by Di/er, Weston, and Manwood, 
 
 be, that a departure from the strict style of for it shall be taken according to the in- 
 
 the corporation will not avoid its con- tent of the devisor." See also Connden 
 
 tracts, if it substantially appear that the v. Gierke, Hobart, 32; Croydon Hospital 
 
208 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. VIU. 
 
 legacy may be given or a devise made to a corporation either by 
 its corporate name or by a description which clearly distinguishes 
 and identifies the legatee.^ 
 
 § 181. (123) Where the name of the corporation is expressly 
 defined by charter or statute, it is usually provided in terms that 
 by such name it may sue and be sued. In such case the true cor- 
 porate name should be used both in suits by and against the 
 corporation. A name in a grant or obligation to or by a corpora- 
 tion may be sufficient to enable the corporation to enjoy or to 
 make it liable, which would not be sufficient in an action by or 
 against it.^ If the name of a corporation is lawfully changed, 
 not the identity of the corporation itself, suit should, in general, 
 unless provision be otherwise made, be in the new name.^ If a 
 note, bond, or other promise be made to a corporation by a name 
 differing from the corporate name, the corporation may sue in its 
 true name, and allege that it is the party to whom the promise or 
 obligation was made.* 
 
 V. Farley, 6 Taunton, 467; 1 Eng. 
 Com. Law, 457, 1816, where Gihbs, C. 
 J., justly condemns the absurd nicety of 
 many of the decisions from the reign of 
 Edward VI. to the end of James I. on 
 the sutgect of the names and description 
 of corporate bodies. 
 
 1 New York Institute v. How, 10 N. Y. 
 (6 Seld.) 84, 1854. In this case theplain- 
 ti£E, whose corporate name was, " The 
 New York Institution for the Blind," was 
 decided to be entitled to a legacy given 
 to the " Trustees of the Institution for 
 the Maintenance and Instruction of the 
 Indigent Blind," there being no other in- 
 stitution in the city of New York for the 
 blind. See also Vansant v. Roberts, 3 
 Md. 119; Preachers' Aid Society, 45 Me. 
 552; Chapin v. School District, etc., 35 
 N. H. 445; Minot v. Boston Asylum, 7 
 Met. 416. Parol evidence may, in proper 
 cases, be received to identify the corpo- 
 ration intended. Trustees v. Peaslee, 15 
 N. H. 317 ; Bodman ?;. American Tract 
 Society, 9 Allen, 447. 
 
 ^ Cambridge University ». Crofts, 10 
 Mod. 208; 1 Kyd, 253; Willo. 87; Brit- 
 tan V. Newland, 2 Dev. & Bat. (North 
 Car.) 863 ; Insane Asylum v. Higgins, 
 15 111. 185 ; Berks Co., etc. v. Myers, 6 
 
 Serg. & Rawle (Pa.), 12; Clark v. Potter 
 Co., 1 Barr (Pa.), 163; Porter ». Blakely, 
 1 Root (Conn.), 440; Kentucky Seminary 
 V. Wallace, 15 B. Mon. 35; Romeo v. 
 Chapman, 2 Mich. 179; County Court 
 V. Griswold, 58 Mo. 175, 1874; Corder 
 K. Commrs., 16 Ohio St. 353; Trustees v. 
 Campbell, 16 Ohio St. 11. 
 
 ' Mayor, etc. of Colchester, 3 Burr. 
 1866; Begina v. Ipswich, 2 Ld. Raym. 
 1232, 1238; Angell & Ames, sec. 644; 
 Glover, 63. Mr. Kyd says : " Where a 
 corporation becomes liable to any duty, 
 and then its name is changed, the writ 
 brought against it should be in the new 
 name.'' 1 Corp. 288. On a merger, by 
 statute, of a town into a city corporation, it 
 was provided that all of the books, papers, 
 moneys, and efiFects of the former should 
 vest in the latter. Held, that a suit on a 
 bond made to a town before the transfer 
 could not afterwards be instituted in the 
 name of the town, but should be brought 
 in the corporate name of the city. Fort 
 Wayne v. Jackson, 7 Blackf. (Ind.) 86, 
 1843. 
 
 * 10 Co. 1255; 1 Kyd, 287; African 
 Society ». Varick, 13 Johns. 38, 1816; 
 Trustees v. Reneau, 2 Swan (Tenn.), 94, 
 1862 ; Fort Wayne v. Jackson, 7 Blackf. 
 
§ 182.] 
 
 CORPORATE BOUNDARIES. 
 
 209 
 
 Corporate Boundaries. 
 
 § 182. (124) Since the leading object of an American muni- 
 cipal corporation is to invest the inhabitants of a defined locality 
 or place with a corporate existence, chiefly for the purposes of local 
 government, it is obvious that the geographical limits or boun- 
 daries of the corporation ought to be defined and certain. These 
 boundaries are usually described in the charter or constituent act, 
 or a method is prescribed therein, by which they may be ascer- 
 tained, and settled. Because residence within the corporation, 
 confers rights and imposes duties upon the residents, and the- 
 local jurisdiction of the incorporated place is, in most cases, con- 
 fined to the limits of the corporation, it is necessary that these 
 limits be definitely fixed.' They are established by legislative 
 (Ind.) 36,184.3. An allegation that the the purpose of civil and criminal juris- 
 
 defendants acknowedged themselves to be 
 bound unto the plaintiffs, bi/ the descrip- 
 tion, etc , is equivalent to such an aver- 
 ment. 13 Johns. 38, supra. 
 
 1 Cutting w. Stone, 7 Vt. 471; Gray v. 
 Sheldon, 8 lb. 402. Pierce v. Carpenter, 
 10 lb. 480. The general rule is that muni- 
 cipal corporations cannot exercise their 
 powers beyond their own limits, bttt there 
 are some exceptions, as for example to pro- 
 vide for the discharge of sewage. Coldwater 
 V. Tucker, 36 Mich. 474, 1877; ». c. 24 
 Am. Rep. 601. As to boundaries generally, 
 and construction of acts relating thereto, 
 see Hamilton v. McNeil, 13 Gratt. (Va.) 
 389 ; Raab v. Maryland, 7 Md. 483 ; Green 
 V. Cheek, 5 Ind. 105 ; People v. Carpenter, 
 24 N. T. 86 ; Elmendorf k. Mayor, etc., 25 
 Wend. 693 ; post, sees. 562, 6.S4. A munici- 
 pal corporation cannot usually exercise its 
 powers beyond its own limits. Consider- 
 ations of public policy sometimes induce 
 the legislature to grant authority to do so, 
 as where a water supply mnai be obtained 
 from a distance. Coldwater o. Tucker, 
 36 Mich. 474, 1877. 
 
 The following cases relate to questions 
 which have arisen with respect to places 
 bounded on rivers. An act extending the 
 bounds of a town over the adjacent navi- 
 gable waters does not thereby grant to the 
 town the land covered by the water, and 
 consequently confers no right to make 
 rules to regulate the use of such land, 
 although such an act will bring the ter- 
 ritory within the limits of the town for 
 
 VOL. I. 14 
 
 diction. Palmer v. Hicks, 6 Johns. 130, 
 1810. 
 
 In New Hampshire, towns bounded by 
 or on rivers not navigable, or by lines up 
 and down the river, extend to the centre 
 of the river, and this principle is held to 
 apply to the great streams, the Connec- 
 ticut and the Merrimack. State v. Canter- 
 bury, 8 Fost. (28 N. H.) 195, 1854 ; State v. 
 Gilmanton, 14 N. H. 467. See, also. Cold 
 Springs, etc. v. Tolland, 9 Cush. 492. 
 
 In Connecticut, towns bounded on rivers, 
 in some instances take the land on each 
 side of the river, in which case the whole 
 river is within the jurisdiction of the 
 town. In other instances, where towns- 
 are bounded on rivers the jurisdiction, 
 thereof is construed, without any express- 
 provision to that effect, and in virtue of 
 ancient usage to that effect, to extend to> 
 the centre of the stream. Opposite townsi 
 have each political and civil jurisdiction! 
 to the centre, though the charter limits 
 extend only to the stream or margin or 
 channel thereof. Pratt v. State (assault 
 on officer on the river Connecticut), 5 
 Conn. 388, 1824 ; Hayden v. Noyes (oyster 
 fishery on the Connecticut River), II), 391, 
 395. Hosmer, C. J. (lb. 395), remarks : 
 " Every part of the Connecticut River, so 
 far as it relates to jurisdiction, is within 
 some town in the state ; or these waters 
 would be a sanctuary for debtors or crimi- 
 nals. Such has been the invariable usage." 
 
 The jurisdiction of Brooklyn, for police 
 purposes, extends to low-water line whether 
 
210 MUNICIPAL CORPORATIONS. [CH. Till. 
 
 authority. The power to incorporate a place necessarily includes 
 the power to fix and change its boundaries.^ 
 
 § 183. The fundamental idea of a municipal corporation proper, 
 both in England and in this country, is to invest compact or dense 
 populations with the power of local self-government. Indeed, the 
 necessity for such corporations springs from the existence of 
 centres or agglomerations of population, having, by reason of 
 density and numbers, local or pe(^liar interests and wants, not 
 common to adjoining sparselj' settled or agricultural region. It is 
 necessary to draw the line which separates the limits of the place 
 and people to be incorporated. This is with us a legislative func- 
 tion.2 And, therefore, in a special charter incorporating a place, 
 the boundaries are expressly defined in the charter itself, and the 
 power of the legislation hy its direct action thus to determine the 
 extent of the geographical limits of the corporation is very broad, 
 and in fact unlimited, except where the provisions of the charter 
 are such as would contravene constitutional limitations, express 
 or implied. 
 
 But where municipalities are organized under general statutes 
 no expression of the legislative will as to the exact boundaries of 
 any particular place proposing to become incorporated can be 
 made. The vital question of boundaries must then be determined 
 in some other mode. The legislation of the different states in 
 which this system of organizing municipal corporations has been 
 adopted, is not uniform in its details ; but the authority to incor- 
 
 fonned naturally or artificially. Furman towns bounding on a river running be- 
 
 Street, 17 Wend. 649, 661. See Udall i: tween them. Brookline ». Westminster, 
 
 Trustees, 19 Jolms. 176, Ih. 179, as to boun- 4 Vt. 224 ; Granby v. Thurston, 23 Conn, 
 
 ijary of New York City. By statute, the 416. 
 
 bounds of Alhany extend to the middle of The same construction that is given to 
 
 the Hudson River. 9 Wend. 602. East- grants is given to statutes which prescribe 
 
 em boundary line of St. Louis was de- the boundary of incorporated territories, 
 
 fined by the charter to be the Mississippi Thus, where a stream not navigable is 
 
 River, and it was held to extend to the made the boundary, the centre of the 
 
 middle of the stream, and not simply to stream is the true line. Cold Springs, 
 
 the bank. Jones v. Soulard, 24 How. 41, etc. v. Tolland, 9 Cusli. 492, 1862 (action 
 
 I860. for defective bridge) ; Inhabitants of Ips- 
 
 Where the riparian proprietor only wich, 13 Pick. 431 ; Granger «. Avery, 64 
 
 owns to high-water mark, and all below Me. 292, 1874. 
 
 belongs to the state, a city cannot tax i Galesburg v. Hawkinaon, 75 III. 156, 
 
 lots covered by water beyond high-water 1874. 
 
 mark. State v. Jersey City, 1 Dutch. (N. « Ante, sees. 9, 19, 22, 28, 29, 32, 37 41 
 
 J.) 525; 76. 630. 44,54,58. 
 
 Statute duty as to bridges of .adjacent 
 
§ 184] CORPORATE BOUNDARIES. 211 
 
 porate has usually been restricted as in England to eases in which 
 communities more or less dense and populous already exist, and 
 who desire to take on a corporate character in order to exercise 
 the powers of local government.^ When duly organized their 
 powers are prescribed and defined by the general incorporating 
 statutes. But how and by whom is the extent of territory to be 
 included within the corporate limits (which necessarily settles 
 what property and what persons will become subject to municipal 
 rule) to be determined? Unless specially restrained, the legisla- 
 ture may delegate this power to appropriate local bodies or boards 
 or officers ; ^ but it has in several cases been made a question how 
 far this power, which is essentially political or administrative, may 
 be conferred upon the judicial courts. 
 
 This depends somewhat upon local constitutions, laws, and 
 usages ; and the principal cases on the subject are referred to in 
 the note.^ 
 
 § 184. (125) There cannot be, at the same time, within the 
 same territory, two distinct municipal corporations, exercising the 
 same powers, jurisdictions, and privileges.* 
 
 > Peoplev. Bennett, 29 Mich. 451, 1874 ; ' People v, Bennett, supra, and cases 
 
 s. c. 18, Am. Rep. 107, where this subject cited in last note. ' But compare with 
 
 is learnedly examined by Campbell, J., People v. Nevada, 6 Cal. 143, in which it 
 
 from whose opinion the doctrines of the was held that the judicial courts could 
 
 text have mainly been deduced. not be empowered to act in the incorpo- 
 
 ■^ People V. Bennett, supra ; Blanchard ration of towns, because it was not a judi- 
 
 ». Bissell, 11 Ohio St. 96, 1860 ; Peoples, cial act. Contio, Kayser w. Trustees, etc., 
 
 Carpenter, 24 N. Y. 86, 1861 ; Devore's 16 Mo. 88 ; ante, sec. 41, note. In Hlimis 
 
 Appeal, 66 Pa. St. 163 ; Borough of it has been decided that the legislature 
 
 Blooming Valley, lb. 66. Osgood o. cannot constitutionally confer upon the 
 
 CIark,6Fost. (26 N..H.) 307. judicial courts the power to change the 
 
 In the People v. Bennett, supra, arising boundaries of municipalities by annexing 
 
 under the Michigan Statute of 1873, for the or disannexing territory, as such acts are 
 
 {general incorporation of villages within legislative and not judicial. Galesburg v. 
 
 any two square miles of territory, an at- Hawkinson, 75 III. 162. See, however, 
 
 tempt was made to incorporate as one Blanchard v. Bissell, 11 Ohio St. 96, 1860; 
 
 two village settlements separated by in- post, sec.186, note. 
 
 tervening farms ; it was held that the * Willc. on Corp. 27 ; Patterson v. So- 
 
 statute was unconstitutional because it ciety, etc., 4 Zabr. 24 N. J. L. 385, 399, 
 
 allowed the petitioners for incorporation ppr Green, C. J., 1854; Rex v, Passmore, 
 
 to decide upon extent of territory to be 3 Term R. 243 ; Rex v. Amery, 2 Bro. P. 
 
 incorporated and because the legislature C. 336 ; Grant on Corp. 18. " This," says 
 
 had attempted to delegate legislative Oshorn, J., " is a self-evident proposition." 
 
 powers in this respect to private citizens, Taylor v. Fort Wayne, 47 Ind. 281, 1874. 
 
 instead of legal bodies, boards, or officers. The city of Chicago adopted an ordi- 
 
 no notice, no hearing, and no right to a nance proliibiting any person, company, 
 
 hearing being provided. or corporation within the city, or wllliin 
 
212 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. vni. 
 
 § 185. (126) Not only may the legislature originally fix the 
 limits of the corporation, but it may, unless specially restrained in 
 the constitution, subsequently annex, or authorize the annexation 
 of, contiguous or other territory, and this without the consent, 
 and even against the remonstrance, of the majority of the persons 
 residing in the corporation or on the annexed territory. And it 
 is no constitutional objection to the exercise of this power of 
 compulsory annexation that the property thus brought within 
 the corporate limits will be subjeet to taxation to discharge a 
 pre-existing municipal indebtedness, since this is a matter which, 
 in the absence of special constitutional restriction, belongs wholly 
 to the legislature to determine.^ 
 
 a mile of the city limits, from engaging in the 
 business of slavghtering animals for food, or 
 packing them for market, or rendering 
 the offal, bones, etc., of any dead animal 
 matter, etc., . . . until they shall have 
 obtained a license therefor. The defen- 
 dant was a corporation, organized under 
 the laws of the state, and when the suit 
 was instituted against tlie company it was 
 carrying on the kind of business men- 
 tioned in the ordinance. Its factory was 
 in Cook County, outside of the city limits, 
 and within the town of Lake, in tliat county, 
 and it had then a license from the town 
 of Lake to carry on the kind of business 
 it was engaged in, but had no license 
 from the city of Chicago. It was urged 
 that the city of Chicago had no power to 
 pass or enforce the ordinance. Walker, 
 J., who delivered the opinion, after a 
 careful discussion of the questions, viz. : 
 
 1. Whether the General Assembly had 
 granted the power to the city of Chicago 
 to pass an ordinance of such a character ; 
 
 2. Whether the power was also granted 
 to exercise police restraint outside of the 
 city limits, and within another munici- 
 pality ,^says: "We must conclude that 
 the General Assembly, rather than subject 
 one large city to such hazards from 
 smaller municipalities in their immediate 
 vicinity, would have repealed the charter 
 of the latter, or at least curtailed their 
 power. What in the open and thinly 
 settled country would not be obnoxious 
 as a nuisance, would in the heart of a 
 city be a terrible nuisance. Persons then 
 desiring to engage in or near to cities 
 
 must submit to have their pursuits lim- 
 ited and contracted. Whilst trade, manu- 
 factures, and commerce have large claims 
 on the laws for protection, theirs is not 
 the only, nor have they the highest claims. 
 . . . To accomplish this purpose (pro- 
 tect health and lives), the power was 
 conferred by the legislature upon cities 
 and villages to regulate these establish- 
 ments for the distance of one mile beyond 
 their corporate limits, even if that should 
 lap over and embrace a portion of terri- 
 tory embraced in the boundaries of 
 another municipality." Chicago Pack- 
 ing Co. V. Chicago, 88 111. 221, 1879. 
 Where the boundary line of a corporation 
 was vague and indefinite, the practical 
 interpretation which had been given to 
 the statute by the citizens of the disputed 
 district in exercising municipal privileges, 
 such as voting, etc., was adopted by the 
 court. Milne v. Mayor, etc., 13 La. 69, 
 1838. See also Hamilton v. McNeil, 13 
 Gratt. (Va.), 389, 1856; post, sec. 420, n. 
 Boundaries may be deiined by long use, 
 confirmed by a legislative recognition. 
 People V. Farnham, 35 111. 562. If a dwell- 
 ing-house is divided by the boundary line 
 between two towns, that portion of the 
 house which the occupant mainly and 
 substantially makes his home (as by 
 sleeping, eating, etc.) fixes his residence, 
 and he cannot elect to reside and be taxed 
 in the other town. Chenery v. Waltham, 
 8 Cush. 327. 
 
 1 Blanchard v. Bissell, 11 Ohio St. 96, 
 1860, defining contiguity and construing 
 statute authorizing county commissioners 
 
§ 186.] 
 
 CORPORATE BOUNDARIES. 
 
 213 
 
 § 186. Where no constitutional restriction exists, the corporate 
 existence and powers of counties, cities, and towns are subject to 
 
 to annex ; following and approving Pow- 
 ers B. Wood County, 8 Ohio St. 285, 1858. 
 See also Laramie County v. Albany 
 County, 92 U. S. 307, 1876 ; Queen v. Lo- 
 cal Governing Board, L. R. 8 Q. B. 227 ; 
 Woods V. Henry, 55 Mo. 560 ; Giboney o. 
 Girardeau, 58 Mo. 141 ; State v. McEey- 
 nolds, 61 Mo. 203,1875; Layton u. New 
 Orleans, 12 La. An. 515, 1857 ; Arnoult 
 V. New Orleans, 11 lb. 54 ; Cheany v. 
 Hooser, 9 B. Mon. 330; Gorham a. 
 Springfield, 21 Me. 59 ; Morford v. Unger, 
 
 8 Iowa, 82, 1859 ; St. Louis v. Russell, 
 
 9 Mo. 503, 1845 ; St. Louis v. Allen, 13 
 Mo. 400, 1850; Smith v. McCarthy, 56 
 Pa. St 359; Chandler v. Boston, 112 
 Mass. 200, 1873 ; Railroad Co. v. Spear- 
 man, 12 Iowa, 112; Wade v. Richmond, ' 
 18 Gratt. (Va.) 583, 1868; Norris o. 
 Mayor, etc., 1 Swan (Tenn.), 164 ; Elston 
 V. Crawfordsville, 20 Ind. 272 ; Edmunds 
 V. Gookins, lb. 477 ; Girard v. Philadel- 
 phia, 7 Wall. 1, 1868; Opinion of Jus- 
 tices, 6 Cush. 580; Warren v. Charles- 
 town, 2 Gray, 104 ; Covington v. East St. 
 Louis, 78 111. 548. " It would require," 
 says Swan, J., in Powers v. Wood County, 
 
 8 Ohio St. 285, 290, " a very artificial and 
 unsound mode of reasoning to hold that 
 territory could not be anne.xed to a town 
 which owed debts, until the owners of 
 such territory were paid a compensation 
 in money for a proportional part of such 
 debts, on the ground that the property 
 annexed was condemned for public use. 
 It is not to be presumed that a municipal 
 corporation has contracted a debt without 
 being correspondingly benefited." The 
 doctrine of the text approved. United 
 States V. Memphis, 97 U. S. 284, 1877 ; 
 ante, cli. iv. In Michigan there are consti- 
 tutional limitations on the right of the leg- 
 islature to change, except as provided in 
 the constitution, municipal boundaries so 
 far as to interfere with representative dis- 
 tricts. Attorney General v. Bradley, 36 
 Mich. 447, 1877; Attorney General v. 
 Holihan, 29 Mich. 116. 
 
 It is held in Pennsi/lvania that under 
 the terms of the act of the legislature au- 
 thorizing the incorporation of villages, . 
 the boundaries cannot be extended so as 
 
 to include a large body of farm lands ; 
 but the district to be incorporated should 
 be restricted by the courts in which the 
 proceeding is liad, so as to include no 
 more than the village itself and its proper 
 territory. Borough of Little Meadows, 
 35 Pa. St. 335, 1860; Devore's Appeal, 
 66 Pa. St. 163; Blooming Valley, lb. 66. 
 These cases commented on by Campbell, 
 J. People V. Bennett, 29 Mich. 451, 1874 ; 
 B. c. 18 Am. Rep. 107. See chapter on 
 Taxation, post, sees. 794, 796. 
 
 In Indiana, under act of June 18, 1852, 
 lots adjoining a city, which are laid off, 
 platted, and recorded, may be included 
 within the city limits by resolution of the 
 common council. Contiguous territory 
 not thus laid off, etc., can only be an- 
 nexed by petition to tlie board of counti/ 
 commissioners. Jeffersonville v. Weems, 
 6 Ind. (Porter) 547, 1854. Construction of 
 existing laws on subject of annexation of 
 Platte Territory, Taylor v. Fort Wayne, 
 49 Ind. 274, 1874. 
 
 Effect of extension of corporate limits 
 on homestead right, where different pro- 
 visions are made for country and town 
 homesteads. Taylor v. Boulware, 17 
 Tex. 74; Finley v. Dietrick, 12 Iowa, 
 516; Truax v. Pool, 46 Iowa, 256. 
 
 Ordinances or contracts designed to 
 operate throughout the city at large, ex- 
 tend to and operate within subsequent 
 enlarged municipal limits. St. Louis Gas 
 Co. V. St. Louis, 46 Mo. 121, 1870. 
 
 Recordingtown plats. Bemis v. Becker, 
 1 Kan. 226 ; Mason v. Pitt, 21 Mo. 391 ; 
 Strong V. Darling, 9 Ohio, 201 ; post, sec. 
 628. 
 
 As to taxation, for general municipal 
 purposes, of rural property within corpo- 
 rate limits, and the restrictions on the 
 right, see chapter on Taxation, jiost, sees. 
 794, 795. 
 
 Locality, under the Canadian system 
 of municipal government, is subject to 
 taxation. Each portion of a county there- 
 fore should bear its proper proportion of 
 the taxation of the whole county. Where 
 a portion is detached from one and added 
 to another county, some mode of adjust- 
 ment of existing liabilities becomes indis- , 
 
214 MUNICIPAL CORPORATIONS. [CH. VIH. 
 
 legislative control. Where a municipal corporation is legulated 
 out of existence and its territory annexed to other eorporations, the 
 latter, unless the legislature otherwise provides, become entitled 
 to its property and severally liable for a proportionate share of 
 its then subsisting legal debts and vested with the power to raise 
 revenue wherewith to pay them by levying taxes upon the prop- 
 erty transferred and the persons residing therein. The remedy 
 of the creditors of the extinguished corporation is in equity against 
 the corporations succeeding to its property and powers.'' 
 
 § 187. (127) In connection with the power of the legislature 
 to create corporations and determine their territorial extent, 
 reference may be made to the division of towns or public corpora- 
 tions by legislative act or authority. There is no restriction on 
 the general power, unless it be found in the constitution of the 
 state. ^ In case of division, the legislature may, as we have already 
 seen, apportion the burden between the two, and determine the 
 proportion to be borne by each.^ In Connecticut, " the legisla- 
 ture," says the Supreme Court, "have immemorially exercised 
 the power of dividing towns at its pleasure, and upon such divi- 
 sion, apportioning the common property and common burdens 
 in such manner as to it shall seem reasonable and equitable." * 
 
 pensable. See MeKee v. Huron District * Ante, sec. 63, et seq. ; Londonderry v. 
 
 Court, 1 Upper Can. Q. B. 368 ; North Derry, 8 N. H. 320, 1836 ; Bristol ». New 
 
 Dumfries v. The County of Waterloo, 12 Chester, 8 N. H. 632; Sill v. Corning, 15 
 
 Upper Can. Q. B. 507 ; County of Wei- N. Y. 297 ; People v. Draper, lb. 532 ; 
 
 lington ». Township of Waterloo, 8 Up- Smith v. Adrian, 1 Mich. 495 ; Waring ». 
 
 per Can. C. P. 358 ; County of Welling- Mobile, 24 Ala. 701 ; Mayor v. State, 15 
 
 ton V. Township of Wilmot, 17 Upper Md. 376 ; Love v. Schenck, 12 Ire. Law, 
 
 Can. Q. B. 82 ; Windham v. Portland, 4 804, 1851 ; Love v. Kamsour, lb. 328, 
 
 Mass. 384 ; Hampshire v. Franklin, 16 1855 ; Olney v. Harvey, 50 111. 453 ; Sedg- 
 
 Mass. 75 ; Plunkett's Creek v. Crawford, wick Co. v. Bailey, 11 Kan. 631, 1873 ; 
 
 27 Penn. St. 107; New London v. Mont- Sangamon County v. Springfield, 63 111. 66, 
 
 yille, 1 Boot (Conn.), 184; North Yar- 1873; Dunsmore's Appeal,52Pa. St.374 ; 
 
 mouth V. Skillings, 45 Me. 133 ; Lakin v. Barclay ». Levee Commrs., 93 U. S. 268, 
 
 Ames, 10 Cushj 198; Brewster W.Harwich, 1876; Broughton v. Fensacola, 93 U.S. 
 
 4 Mass. 278; Randolph v. Braintree, Jb. 266, 1876 ; County Court ». County Court, 
 
 315; Blackstone v. Taft, 4 Gra)-, 250; 3 Bush (Ky.), 93. And see ante, ch. iv. 
 
 Hartford Bridge Co. v. East Hartford, 16 for a general view of the extent of the 
 
 Conn. 149 ; East Hartford v. Hartford legislative authority over public and mu- 
 
 BridgeCo., 17Conn.80; Crawford County nicipal corporations and their rights, lia- 
 
 V. Iowa County, 2 Chand. (Wis.) 14. bilities, property, and contracts ; and ch. 
 
 1 Mount Pleasant u. Beckwith, 100 vii. as to the dissolution of municipal cor- 
 
 U. S. 614, 1879 ; ante, sees. 168, 173 ; in- porations and its effect upon their credi- 
 
 /ra, sees. 187, 188, 189. tors and property. 
 
 * Ante, ch. iv. sees. 54, 63 ; supra, sea . * Granby v. Thurston, 23 Conn. 416, 
 
 186- 419, pgr Waite, C. J. ; Willimantic Society 
 
§ 188.] 
 
 CORPORATE BOUNDAEIES. 
 
 215 
 
 Accordingly, it may impose on one town, upon such division, the 
 entii'c expense of erecting and maintaining a bridge across a river 
 which is the dividing line between the two towns.^ 
 
 § 188. (128) On the division of a town or public corporation 
 possessing corporate property, into two separate towns or commu- 
 nities, each, in the absence of a different provision by the legisla- 
 ture, was considered by the Supreme Court of New York to be 
 entitled to hold in severalty the public property which fell within . 
 its limits.* In Connecticut, it is declared to be " well settled that 
 
 0. School Society (dfvision of school so- 
 cieties and funds), 14 Conn. 457 ; Hart- 
 ford Bridge Co. v. East Hartford (ferry 
 franchise), 16 Conn. 149 ; affirmed, 10 
 How. {U. S.) 511, 541 ; Laramie County v. 
 Albany County, 92 U. S. 307, 1875. Leg- 
 islature cannot control an educational 
 fund raised by individual bounty and not 
 by taxation (Plymouth v. Jackson, 15 
 Fa. St. 44), or direct a division of the 
 funds between two towns different from 
 that which is prescribed in the will of the 
 donor. Greenville v. Mason, 53 N. H. 515, 
 1873. See, also, Montpelier i'. East Mont- 
 pelier, 27 Vt. 704 ; 29 lb. 12 ; ante, sees. 
 64, 80, 85, 171. 
 
 ' Granby v. Thurston, supra ; ante, sec. 
 71. 
 
 The tenacity with which the people of 
 New England cling to the popular or toam 
 form of government has been before no- 
 ticed {ante, sees. 28, 29) ; and the Consti- 
 tution of Massachusetts in the second 
 amendment, accepted in 1821, contains the 
 provision that the legislature " shall have 
 full power and authority to erect and con- 
 stitute municipal or city governments, in 
 any corporate town or towns in this com- 
 monwealth, .... provided, that no such 
 government shall be erected or consti- 
 tuted in any town not containing 12,000 
 inhabitants, nor unless it be with the con- 
 sent and on the application of « majority 
 of the inhabitants of such town present 
 and voting thereon at a meeting duly 
 warned and holden for that purpose." 
 On May 16, 1873, the legislature, without 
 any application by a majority of the in- 
 habitants of the toum of Brookline, which 
 contained a population of about 6,500, an- 
 nexed it to the city of Boston, the act to 
 
 take effect if accepted by a majority of 
 voters voting at meetings to be held in Oc- 
 tober, 1873. In tlie case of Chandler v. Bos- 
 ton, 112 Mass. 200, 1873, the question was 
 presented whether an entire town with 
 less than 12,000 inhabitants can be an- 
 nexed to a city, and also whether a pre- 
 vious application of a majority of the in- 
 habitants of the town is not essential to 
 the erection or constitution of a city govern- 
 ment therein or over the inhabitants 
 thereof. The validity of the aot provid- 
 ing for such annexation was sustained. 
 See opinion of Justices, 6 Cush. 580; 
 Warren v. Charlestown, 2 Gray, 104, as 
 to general power of the legislature to 
 change the boundaries of towns and cities. 
 ^ North Hempstead v. Hempstead, 2 
 Wend. 109, 1828. " SupposCj" says -So»- 
 age, C. J., delivering the opinion of the 
 court in this case, " the state to be divided 
 into two states : without some special 
 agreement, each would own the public 
 property within its limits. So of coun- 
 ties : the public buildings remain the 
 property of the old county; yet public 
 buildings are as much public property as 
 public lands. So as to the plains, mea- 
 dows, and marshes which are the subject 
 of this suit. A bill filed by a new county 
 for the partition of the gaol and court- 
 house, which had been common property, 
 would be the same in principle as the bill 
 in this suit. Would not such a suit be 
 considered preposterous ? Suppose a re- 
 ligious corporation possessed of a church 
 and parsonage; it becomes expedient to 
 erect part into a new corporation : would 
 not the old corporation retain the prop- 
 erty, unless an agreement was made as 
 to the partition of it 1 " 2 Wend. 109, 
 
216 MUNICIPAL COBPOBATIONS. [OH. VIII. 
 
 when part of the inhabitants and territory of an older town are 
 erected into a new corporation, the old town retains all of the 
 property, rights, and privileges formerly belonging to it, and is 
 subject to all its former duties and liabilities, at least as it regards 
 property which has no fixed location in the new town, as lands, 
 buildings, etc." Accordingly, " upon the division of Hartford, no 
 part of the ferry franchise would pass to the new town of East 
 Hartford, except by virtue of a legal provision to that effect." ^ 
 . So, it has been frequently held that if a new corporation is created 
 out of the territory of an old corporation or if part of its territory 
 or inhabitants is annexed to another corporation,^ unless some pro- 
 vision is made in the act respecting the property and existing 
 liabilities of the old corporation, the latter will be entitled to all 
 the property, and be solely answerable for all the liabilities.^ 
 
 § 189. (129) But upon the division of the old corporation, and 
 the creation of a new corporation out of part of its inhabitants 
 and territory, or upon the annexation of part to another corpora- 
 tion, the legislature may provide for an equitable appropriation or 
 division of the property, 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 
 
 135 ; Laramie County v. Albany, 92 U. S. Albany County, 92 U. S. 307, 1875, where 
 
 307, 1875. Incorporation of a part of a the cases are cited, and the subject Icarn- 
 
 town into a city, held not to divest the title edly discussed by Clifford, J. Greenville 
 
 of the town to a tract of land owned by v. Mason, 53 N. H. 615, 1873 ; Depere v. 
 
 it in fee simple, " in trust, for the use of Bellevue, 31 Wis. 120, 1872 ; s. c. 11 Am. 
 
 the town, forever." Milwaukee v. Mil- Rep. 602. 
 
 waukee, 12 Wis. 93. ' Text cited and approved. Mount 
 
 ' Per Church, J., in Hartford Bridge v. Pleasant v. Beckwith, 100 0. S. 514. 
 
 East Hartford, 16 Conn. 149, 171, 1844 ; * Gorham v. Springfield, 21 Me. 61 ; 
 
 affirmed by Supreme Court of the United North Yarmouth v. Skillings, 45 Me. 133, 
 
 States, 10 How. (U. S.) 511, 541. Ap- 1858; Brewster ». Harwich, 4 Mass. 278 ; 
 
 proving Windham v. Portland, 8 Mass. lb. 315 ; lb. 384 ; Harrison v. Bridgton, 
 
 884 ; Hampshire v. Franklin, 16 Mass. 76 ; 16 Mass. 16 ; lb. 76, 1819 ; Lakin v. Ames, 
 
 North Hempstead v. Hempstead, 2 Wend. 10 Cush. 198, 1852. See School District 
 
 109; ante, sec. 9. v. Richardson, 23 Pick. 62,1839, as to 
 
 ^ Windham o. Portland, 4 Mass. 384, the effect in Massachusetts upon the title 
 
 1808 ; Richards v. Daggett, 4 76. 539 ; to property of the abolition of old school 
 
 Hampshire v. Franklin, 16 Mass. 76, 1819 ; districts and the formation of new ones ; 
 
 Richland County v. Lawrence, 12 111. 1, followed by School District v. Tapley, 1 
 
 1850; Blackstone v. Taft, 4 Gray, 2,50, Allen, 49; but a A'cfum therein questioned 
 
 1855; North Yarmouth v. Skillings, 45 hy Hoar, J. Simmons i;. Nahant, 3 Allen, 
 
 Me. 133, 142, 1858 ; Cobb v. Kingman, 316, as to necessity of a deed of convey- 
 
 15 Mass. 197 ; Minot v. Curtis, 7 Mass. ance for real estate. Sanbornton v. Til- 
 
 441, 445; Opinion of Supreme Judges, 6 ton, 55 N. H. 603, 1875; s. c. 53 N. H. 
 
 Cush. 575; lb. 678; Laramie County c. 438; Tilton w. Sanbornton, 55 N. H. 610. 
 
§ 189.] 
 
 CORPOKATE BOUNDARIES. 
 
 217 
 
 charters and constituent acts of public and municipal corpora- 
 tions are not, as we have before seen, contracts, and they may be 
 changed at the pleasure of the legislature, subject only to the re- 
 straints of special constitutional provisions, if any there be. And 
 it is an ordinary exercise of the legislative dominion over such 
 corporations to provide for their enlargement or division ; and, 
 incidental to this, to apportion their property and to direct the 
 manner in which their debts or liabilities shall be met, and by 
 whom. The opinion has been expressed that the partition of the 
 property must be made at the time of the division of, or change 
 in, the corporation, since otherwise the old corporation becomes, 
 under the rule just before stated, the sole owner of the property, 
 and hence cannot be deprived of it by a subsequent act of the 
 legislature.^ But, in the absence of special constitutional limita- 
 
 Note relating to division of property un- 
 der legislative act. Southampton v. Fow- 
 ler (Little Islands on division of town), 
 62 N. H. 225, 1872 ; Tileson «. Newman, 
 23 Vt. 421 ; Richards v. Daggett, 4 Mass. 
 534; Waldron v. Lee, 6 Pick. 323. In 
 Pennsylvania it was held that on a division 
 of a township, each fraction remains lia^ 
 ble for the whole debt due by the old 
 township ; if one pays the whole amount, 
 it lays the foundation for contribution. 
 Plnnkett Township v. Crawford, 27 Pa. 
 St. 107, 1856. See New London v. Mont- 
 ville, 1 Root (Conn.), 184. On annexa- 
 tion of a portion of a township to a city, 
 the residue retains all its property, real 
 and personal, unless a different disposi- 
 tion has been made by the terms of the 
 division. People v. School Trustees, 86 
 HI. 613. As to right to collect taxes on 
 such division, see Barnett Township u. 
 Jefferson County, 9 Watts, 166; Devorw. 
 MoClintock, 9 Watts & S. 80. 
 
 As to support of poor in case of divis- 
 ion. North Whitehall v. South White- 
 hall, 3 Serg. & Rawle (Pa.), 117; Over- 
 seers, etc. »- Overseers, etc., 2 lb. 422 ; 
 Stillwater v. Green, 4 Halst. (N. J.) 59. 
 
 Where there has been an insufficient 
 legal division and organization of a new 
 district, this may be afterwards ralifed 
 and made binding. Sawyer v. Williams, 
 26 Vt. 311 ; Pierce v. Carpenter, 10 Vt. 
 480; Alden v. Rounsville, 7 Met. 219. 
 
 The mode of proceeding, under the stat- 
 ute of New York, in the division of old 
 
 and the erection of new towns, the di- 
 rectory nature of the statute as to mode of 
 proceeding, and the presumption in favor 
 of the regularity of the proceedings, are 
 clearly set forth in the case of the Peo- 
 ple V. Carpenter, 24 N. Y. 86. 
 
 As illustrating the directory nature of 
 such statutes, see Elmendorf v. Mayor, 
 25 Wend. 693 ; Striker v. Kelly, 7 Hill 
 (N. Y.), 9. But an agreement in such 
 division, transcending the powers of the 
 officers who make it, is not binding on 
 the town. Overseers v. Same, 18 Johns. 
 382. Effect of erection of a new out of a 
 portion of an old county on the term* of 
 officers who respectively resirfe in the new 
 and old portions, see People «. Morrell, 
 21 Wend. 563, 1839, and authorities cited 
 by Cowen, J., p. 580. County commis- 
 sioners must, by law, reside in the county, 
 and on the erection of a new county in 
 which their residence is included they 
 become residents of the nem county and 
 non-residents of the old county, and can- 
 not legally act for it, unless they remove 
 within it ; though if they continue to act 
 without such removal their acts are valid, 
 being officers de facto. State v. Harts- 
 horn, 17 Ohio, 135; State v. Jacobs, 76. 
 143. 
 
 ' Hampshire v. Franklin, 16 Mass. 76 ; 
 Windham v. Portland, 4 lb. 390; Bow- 
 doinham v. Richmond, 6 Greenl. 6 Me. 
 112, holding that subsequent legislation 
 could not change the apportionment of 
 the debts between an old town and one 
 
218 MUNICIPAL CORPORATIONS. [GH. VIII. 
 
 tions upon the legislature, this view cannot, perhaps, be main- 
 tained, as it is inconsistent with the necessary supremacy of the 
 legislature over all its corporate and unincorporate bodies, divi- 
 sions and parts, and with several well-considered adjudications.^ 
 
 Corporate Seal. 
 
 § 190. (130) The charters of municipal corporations usually 
 contain a clause authorizing them to have and use a common seal, 
 and to alter the same at pleasure. Without an express grant it 
 is, however, incident to every corporation to adopt and use a 
 corporate seal. The essential importance which the common law 
 anciently attached to seals, and the modern relaxation of the 
 rule, are well known. Respecting seals, the same general prin- 
 ciples apply to private and to municipal corporations. Thus, a 
 corporation of the latter class would doubtless be bound equally 
 with a private corporation by any seal which has been author- 
 itatively affixed to an instrument requiring it, though it be not 
 the seal regularly adopted.^ On the other hand, it would not be 
 bound by the affixing of either the regular or temporary seal by 
 a person not legally and duly authorized.* So, under the modern 
 
 created from It, since such an apportion- 17 111. 154 ; Stebbins v. Merritt, 10 Cash, 
 
 ment was in the nature of a contract. 27 ; City Council o. Moorehead, 2 Bich. 
 
 But see, ante, ch. iv. sees. 64, 75. Law, 430 ; Grant on Corp. 59, and cases ; 
 
 1 Layton -u. New Orleans, 12 La. An. and note author's opinion and his doubt 
 515, 1857, cited, ante, see. 63; Laramie as to the existence of any common law 
 County V. Albany County, 92 U. S. 307, right to change the common seal. An im- 
 1875 ; Dunsmore's Appeal, 52 Pa. St. 374. pression of a corporate seal stamped upon 
 In this last case one borough was divided and into the substance of the paper containing 
 into four, and the legislature was held to the instrument is sufficient, unthout wafer or 
 have the power afterwards to provide for wax. Hendee v. Finkerton, 14 Allen, 381. 
 an equitable adjustment of the indebted- ' Eoehler v. Iron Co., 2 Black, 716, 
 Dess among them all, by commissioners 1862 ; Bank of Ireland v. Evans, 33 Eng. 
 to be appointed by a designated court. Law & Eq. 23. " But where a corpora- 
 and from whose determination no appeal tion is created by an act far particular 
 "Was allowed. As to extent of legislative purposes with special powers, then another 
 control over public and municipal corpo- question arises : their deed, though un- 
 rations and their rights, liabilities, prop- ' der their corporate seal, and that regn- 
 crty, and contracts see ante, ch. iv. and larly affixed, does not bind them if it 
 cases there cited ; Cooley, Const. Lim. appear by the express provisions of the 
 193, 231, 232 ; ante, sees. 172, 173 ; post, statute creating the corporation, or by 
 chapter on Taxation. necessary or reasonable inference from 
 
 2 Bank, etc. v. Railroad Co., 30 Vt. its enactments, that the deed was ultra 
 159, 1858, per Redfield, C. J.; Tenney v. vires; that is, that the legislature meant 
 Lumber Co., 43 N. H. 343; Mill Dam that such a deed should not be made." 
 Foundry K. Hovey, 21 Pick. 417; Porter Per Par/re, B., in South Yarmouth Rail- 
 V. Railroad Co., 37 Me. 349; Angell & way Co. k. Great Northern Railway Co., 
 Ames Corp. sec. 217 ; Phillips v. Coffee, 9 Ex. 55, 84 ; adopted by Martin, B., in 
 
§ 192.] CORPORATE SEAL. 219 
 
 doctiine, a corporation can do an act in pais by an attorney in 
 fact, and such attorney need not necessarily be appointed under 
 seal.i 
 
 § 191, (131) The seal of a private corporation attached to an 
 instrument does not prove its own authenticity ; but it should be 
 shown by evidence aliunde to be really the seal of the coipora- 
 tion.2 The same doctrine is, probably, applicable to the seal of a 
 municipal corporation, except where changed by charter or stat- 
 ute, although it seems that it is usual in England to allow deeds 
 and other instruments relating to real estate to go to the jury 
 when authenticated by the corporate seals of London, Edinburgh, 
 or Dublin — these being corporations of great antiquity, or recog- 
 nized by the legislature.^ The corporate seal attached to an 
 instrument, attested by the signatures of the proper officers, is 
 prima facie but not conclusive evidence that it was lawfully 
 placed there, and that the instrument is the act of the corpora- 
 tion.* 
 
 § 192. (132) The modern rule is that corporations may be 
 bound by contracts not under seal, and the circumstances under 
 which they will be bound have been stated by Story, J., in terms 
 which have been approved by the courts of nearly everj' state in 
 the Union. " Wherever a corporation is acting within the scope 
 of the legitimate purposes of its institution, all parol contracts 
 made by its authorized agents are express promises of the cor- 
 poration ; and all dufies imposed on them by law, and all benefits 
 
 Payne v. Brecon, 3 H. & N. 579. See ' Per Kinsey, C. J., Den v. Vreelandt, 
 
 also Holdsworth v. Dartmouth, 11 A. & 2 Halst. (N. J.) 352. 
 
 E. 490 ; Eegina ». Lichfield, 4 Q. B. 893 ; * Levering v. Mayor, 7 Humph. 
 
 Pallisteru. Gravesend, 9 C. B. 774; Now- (Tenn.) 553, 1847; Memphis w. Adams, 
 
 ell a al. V. Worcester, 9 Ex. 457 ; Kendall 9 Heisk. (Tenn.) 518, 1872 ; Abhott Corp. 
 
 V. King, 17 C. B. 483. Digest, tit. Seal, p. 725, sec. 56, and the 
 
 1 Curry v. Bank, 8 Porter (Ala.), .361, many cases there cited ; Benedict v. Den- 
 1839 ; Lathrop v. Bank, 8 Dana, 114 ; ton. Walk. Ch. 836 ; Railway Co. v. Rail- 
 Abby w. Billups, 85 Miss. 618. way Co., 9 Exchq. 55, 84; Musser w. 
 
 2 Den V. Vreelandt, 2 Halst. (N. J.) Johnson. 42 Mo. 74. In Iowa the county 
 852, 1800 ; Gilbert Ev. 19 ; Jackson v. seal held to be essential to the validity 
 Pratt, 10 Johns. 381 ; Moises v. Thomp- of a county warrant. Prescott v. Gouser, 
 son, 9 Term R. 303 ; City Council v. 84 Iowa, 178 ; Springer v. Clay Co., 35 
 Moorehead, 2 Rich. (South Car.) Law, Iowa, 243; Smeltzer v. White, 92 U. S. 
 430 ; Foster v. Shaw, 7 Serg. & Rawle 390, 1875. 
 
 (Pa.), 163; lb. 818; Mann v. Pentz, 2 
 Sandf. Ch. 25?. 
 
220 
 
 MUNICIPAL CORPOKATIONS. 
 
 [CH. vm. 
 
 conferred at their request, raise implied promises, for the enforce- 
 ment of which an action lies.^ 
 
 ^ Bank of Columbia v. Patterson, 7 
 Cranch (U. S.), 299, 306, 1813; Bank o. 
 Wister, 2 Pet. 318 ; Davenport v. Insur- 
 ance Co., 17 Iowa, 276 ; Ring v. Johnson 
 County, 6 Iowa, 265. See further, Chs. 
 on Contracts and Property, post, sees. 
 459, 936. Corporate seal affixed to the 
 note of the corporation makes it a spe- 
 cialty, having in this respect the same 
 effect as the seal of a natural person. 
 Clarke v. Farmers', etc. Co., 15 Wend. 256 ; 
 lb. 265 ; Benoist v. Carondolet, 8 Mo. 
 240 ; Sturtevant v. Alton, 3 McLean, 393. 
 Lease lield void for want of the corporate 
 seal. Kinzie t: Chicago, 2 Scam. (111.) 
 188. But otherwise of an authorized 
 
 agreement by an agent of a corporation 
 to sell lands (Legrand v. The College, 6 
 Munf. (Va.),324), or authorized assign- 
 ment of a lease. Sanford v. Tremlett, 42 
 Mo. 384. Corporate seal to conveyance 
 by county commissioners. Bestor v. Pow- 
 ers, 2 Gilm. (7 111.) 126. 
 
 Further, see Index — Seal. 
 
 iSr. Broom gives an excellent view of 
 the exceptions to the rule that corpora- 
 tions must contract by deed, as recog- 
 nized and established by the modern 
 English decisions. Broom Com. on 
 Com. Law, 562-569. Seals in connec- 
 tion with municipal bonds. See chapter 
 on Contracts, post. 
 
§ 194.] MUNICIPAL POPULAR ELECTIONS. 221 
 
 CHAPTER IX. 
 
 MUNICIPAL ELECTIONS AND OFFICERS. 
 
 § 193. (133) In considering the Creatiou and Constitution of 
 Municipal Corporations, we have now reached, in its order, the 
 
 subject of MUNICIPAL ELECTIONS ANB OFFICEES. It will be 
 
 treated under the following heads : — 
 
 1. Municipal Popular Elections — sees. 195-199. 
 
 2. Special Tribunal to determine Election Contests for Muni- 
 cipal Offices — sees. 200-205. 
 
 3. Power to create and appoint Municipal Officers — sees- 
 206-213. 
 
 4. Oath and Official Bond — sees. 214-216. 
 
 5. Duration of Official Term — sees. 217-221. 
 
 6. Vacancies in Municipal Offices — sec. 222. 
 
 7. Refusal to serve in Office — sec. 223. 
 
 8. Resignation of Municipal Officers — sees. 224-228. 
 
 9. Compensation of Municipal Officers — sees. 229-234. 
 
 10. Liability of the Corporation to the Officer — sec. 235. 
 
 11. Liability of the Officer to the Corporation and to Others 
 — sec. 236. 
 
 12. Amotion and Disfranchisement — sees. 238-256. 
 
 Municipal Popular Elections. 
 
 § 194. Elections must be held at the time and place provided by 
 law. Where the law fixes no time, but leaves the time to be fixed 
 by some authority named in it, after the happening of some condi- 
 tion precedent, it is essential to the validity of the election that 
 it be called and the time and place thereof fixed by the very 
 agency designated by law, and none other ; as where the mayor 
 and city council is the designated authority, neither the mayor 
 alone nor the council alone has power to call such an election ; 
 if either negtect its duty, mandamus is the remedy.* 
 
 » Stephens v. People, 89 111. 337 ; Hurlbut, 5 Cal. 343 ; People v. Murray, 
 Glencoe v. People, 78 111. 382 ; Uucker v. 15 Cal. 321 ; Juker v. Commonwealth, 20 
 
222 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX 
 
 § 195. (134) Elections by the people, with exceptions in a few 
 states, are by folded or secret ballot, and not open or viva voce' 
 The qualifications of electors or voters are fixed by the constitu- 
 tion and laws, and cannot be changed by any ordinance or act of 
 the corporation.^ Residence for a certain period within the muni- 
 cipality is almost invariably required in express terms, as one of 
 the qualifications of the right to vote at elections therein and as 
 one of the conditions of eligibility to hold a municipal office. 
 Non-residents of the corporation ha^, however, been held com- 
 petent to be elected to office when residence was not expressly 
 required, but the decisions cannot, perhaps, be said to conclude 
 the point,' and, if extended to the higher offices, are hardly 
 consistent with the fundamental idea of municipal government. 
 
 Pa. St. 484 ; Chadwick v. Melvin, 68 Pa. 
 St. 333 ; Knowles v. Yates, 31 Cal. 82 ; 
 Clark V. Board, etc., 27 111. 310 ; Miller i-. 
 English, 1 Zabr. (21 N. J. L.) 317; Mar- 
 shall V. Cook, 38 111. 44; Marshall v. 
 Kerns, 2 Swan (Tenn.), 68 ; Force v. Ba- 
 tavia, 61 III. 99; Foster ti. Scarf, 15 
 Ohio St. 635 ; as to mandamus to compel 
 the holding of an election. See post, sees. 
 838, 83d. If such an election is lield 
 it is void and cannot be ratified. Steph- 
 ens V. People, supra. 
 
 1 Cooley Const. Lim. ch. xvii. 598, 
 where the subject of Popular Elections, 
 the Right to participate therein, the Con- 
 ditions Necessary to the Exercise of the 
 Right, the Manner of Voting, the Con- 
 duct and Sufficiency of Elections are sat- 
 isfactorily presented ; and the rules and 
 doctrines deduced from the cases are, in 
 general, applicable to popular munici- 
 pal elections. Ante, sec. 39. A ballot 
 implies absolute secrecy, and where the 
 constitution of a state declares tliat "all 
 elections by the people shall be by ballot" 
 the legislature cannot by law require the 
 outside of the ballot to be numbered so 
 as to correspond with the number placed 
 opposite the name of the voter on the 
 poll list. Williams v. Stein, 38 Ind. 89, 
 1871 ; s. c. 10 Am. Rep. 97. 
 
 2 Petty V. Tooker, 21 N. Y. 267 ; Com- 
 monwealth «. Woelper, 3 Serg. & Rawle 
 (Pa.), 29; People v. Phillips, 1 Denio (N. 
 Y.), 388; Rex v. Spencer, 3 Burr. 1827; 
 Rex V. Mayor of Weymouth, 7 Mod. 371 ; 
 Newling v. Francis, 3 Term R. 189; Rex 
 
 V. Chitty, 5 Ad. & E. 609; Rexw. Bum- 
 stead, 2 B. & Ad. 699. The provision of 
 the constitution that " every male person 
 twenty-one years old, resident in the 
 state twelve months and in the county 
 thirty days shall be an elector," applies 
 in corporated cities and disables the 
 legislature from requiring ninety days' 
 residence in a city as a qualification for 
 voting for city officers. People v. Canar 
 day (charter of Wilmington), 73 Nor. 
 Car. 198, 1875; s. c. 21 Am. Rep. 465. 
 
 ^ Municipal officers may be elected 
 from non-residents of the corporation 
 when there is no statute or constitution 
 prohibiting it, particularly when the office 
 to be filled is one requiring professional 
 skill, and not representative or legislative 
 in its character. State v. Blanchard (city 
 surveyor), 6 La. An. 515, 1851. The con- 
 clusion was reached with hesitation, but 
 the whole court concurred. lb. So in 
 The State v. Swearingen, 12 Ga. 23, 
 1852, it was decided where the charter of 
 the town provided " for the election of 
 city officers by the people of the city 
 qualified to vote," and was silent as to re- 
 quiring the officers to be residents, that a 
 person might legally be elected and quali- 
 fied who was not a resident of the place. 
 Residence as a qualification for municipal 
 office. See Commonwealth o. Jones, 12 
 Pa. St. 365. Residents, who are. Cohen 
 V. Wigfall, 8 Rich. Law, 237 ; 2 lb. 489; 
 Goldersleeve v. Alexantler, 2 Speer (So. 
 Car.), 298. In England, by the Municipal 
 Corporations Act (sec. 9), inhabitant 
 
§ 196.] 
 
 MUNICIPAL POPULAR ELECTIONS. 
 
 223 
 
 § 196. (135) The choice of a disqualified person is ineffectual. 
 Thus, if the law requires freeholders to be chosen for certain 
 
 householders resident within the borough, 
 or within seven miles oi the borough, 
 and rated to the relief of the poor, are 
 made burgesses or citizens. Before that 
 act was passed, residence in the freeman 
 or citizen was sometimes required to ren- 
 der him eligible to office, although non- 
 residents, wherever residing, might, by a 
 similar perversion of the purposes of a 
 municipal corporation, be admitted to 
 freedom or membership, unless expressly 
 restrained by the charter; and if resi- 
 dence wag expressly required as a condi- 
 tion of eligibility, it was not necessary 
 that the officer should continue to reside 
 in the place while holding the office. 
 Not only so, but it was held that where 
 residence was necessary as a qualification 
 during office, it was not, by implication, 
 necessary that the person elected should 
 . have been a resident at the time of the 
 election. And when inhabitancy was 
 requisite, it meant not merely residence, 
 but keeping a house within the place, and 
 paying scot and lot. Willcock on Munic. 
 Corp. 188, pi. 472; lb. 191, pi. 481 ; /6. 
 193, 488 ; Rex v. Monday, Oowp. 539 ; 
 Eex V. Mallet, 2 Barnard. 408 ; Rex ». 
 Cambridge, 4 Burr. 2008; Rex v. Heath, 
 1 Barnard. 417. These rules are of very 
 doubtful application in this country, since 
 here all of the inhabitants are members of 
 the corporation, and non-residents cannot 
 become such. See on this point opinion 
 of Read, J., in People v. Canaday, supra. 
 And, in general, it may be said that a 
 person is an inhabitant or resident who 
 has his domicile or home in the place ; 
 but it is foreign to the purpose of this 
 work to enter into the difficult questions 
 which have arisen with respect to resi- 
 dency and domicile. Hinds v. Hinds, 1 
 Iowa, 36 ; Story Confl. Laws, sec. 43 ; 
 Putnam v. Johnson, 10 Mass. 488 ; Thorn- 
 dike V. Boston, 1 Met. (Mass.) 245. Pub- 
 lic officers vacate their office by perma- 
 nent removal from territorial limits of 
 the corporation. Barre v. Greenwich, 1 
 Pick. (Mass.) 120; Rumsey v. Campton, 
 16 N. H. 567 ; Giles i-. School District, 11 
 Fost. (31 N. H.) 304. But a temporary 
 removal, with an intention to return, will 
 not, of itself, have this effect. Van Ors- 
 
 dall V. Hazard. 3 Hill (N. Y.), 243, 1842 ; 
 I'eople «. Metropolitan Police Board, 19 
 N. Y. 201; Lyon v. Commonwealth, 3 
 Bibb (Ky.), 430; Eex v. Exeter, Comb. 
 197. 
 
 " Nice questions," says Mr. Harrison 
 (Munic. Manual for Upper Canada, 2d 
 ed. 60, note), " arise as to when a party 
 can or cannot be said to be a resident of 
 a municipality." Attorney General w. Par- 
 ker, 3 Atk. 576 ; Ettherington v. Wilson 
 L. E. ICh. Div. 160; King v. Foxwell, 
 L. E. 3 Ch. Div. 518. A. man cannot, 
 within the meaning of the municipal 
 laws of Canada, be said to be resident in 
 tvm municipalities at the same time. 
 Marr v. Vienna, 10 Upper Can. L. J. 275. 
 A man's residence is where his home is sit- 
 uate — where his family live. The King 
 V. Inhabitants of North Curry, 4 B. & C. 
 959. An occasional absence from his 
 home to attend to business in another 
 municipality does not make his home less 
 his residence. Withorn v. Thomas, 7 M. 
 & G. 1. Where A. had a dwelling-house 
 at Bowmanville, where his wife and fam- 
 ily lived, but had a saw-mill and store and 
 was postmaster in the township of Cart- 
 wright, which occasioned him frequently 
 to visit that place, and who, while there, 
 used to board with one of his men in a 
 house owned by himself, — Held, that af- 
 ter voting in Bowmanville, he had no right 
 to vote in Cartwright. The Queen ex rel. 
 Taylor v. Caesar, 11 Upper Can. Q.B.46I. 
 Mere colorable residence is in no case 
 sufficient The King v. Duke of Bedford, 
 
 6 T. E. 560. Each case must, to a great 
 extent, depend on its own circumstances. 
 As to what is sufficient, see The King v. 
 Sergeant, 5 T. E. 466 ; Bruce ». Bruce, 2 
 B. & P. 229 ; The King «. Mitchell, 10 
 East, 511 ; Withorn v. Thomas, 7 M. & G. 
 1 ; The Queen ex rel. Forward v. Bartels, 
 
 7 Upper Can. C. P. 533 ; Queen v. Boy- 
 cott, 14 L. T. N. S. 599 ; Queen v. Exeter, 
 L. R. 4 Q. B. 110 ; Manning v. Manning, L. 
 R. 2 P. & D. 223 ; Taylor v. Parish, etc., 
 L. R. 6 C. P. ,309 ; Bond v. St. George, L. 
 R. 6 C. P. 312 ; Queen v. St. Ives, L. R. 
 7 Q. B. 467 ; Durant v. Carter, L. R. 9 C. 
 P. 261 ; Ford v. Pye,L. R. 9 C. P. 269; 
 Ford 17. Hart, L. R. 9 C. P. 273 ; Wilton 
 
224 
 
 MUNICIPAL COEPOEA.TIONS. 
 
 [CH. IX. 
 
 officers, the election of a person not a freeholder is void.^ But 
 unless the votes for an ineligible person are expressly declared to 
 be void the effect of such a 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, with- 
 out previous binding nominations, by secret ballot, leaving each 
 elector to vote for whomsoever he pleases), that a new election 
 must be held, and not to give the office to the qualified person 
 having the next highest number of "votes-^ 
 
 V. Falmouth, 3 Shep. 479 ; State v. Decasi- 
 nova, 1 Tex. 401; State ». Frost, 4 Har- 
 ring. 558; Fry's election, 71 Pa. St. 302; 
 8. c. 10 Am. Rep. 698. 
 
 1 Spear v. Eobinson, 29 Me. 531, 1849 ; 
 State V. Svpearingen, 12 Ga. 23, 1852; 
 State V. Gastinel, 20 La. An. 114, 1868. 
 
 2 State V. Swearingen, 12 Ga. 23 ; Sub- 
 lett V. Bedwell, 47 Miss. 266 ; s. c. 12 Am. 
 Rep. 388; State v. Giles, 1 Chand. (Wis.) 
 112; State u. Smith, 14 Wis. 497; Saun- 
 ders V. Haynes, 13 Cal. 145; State v. Gas- 
 tinel (under charter), 20 La. An. 114; 
 Cooley Const. Lim. 620 ; Commonwealth 
 ex rel. McLaughlin v. Cluley (SherifE), 56 
 Pa. St. 270, 1868; People t-. Clute, 50 N. 
 Y. 451, 1872; s. c. 10 Am. Rep. 508; 
 Wood V. Bartling, 16 Kan. 109, 114, 1876. 
 The following points are ruled in People 
 V. Clute, supra. Where a majority of the 
 electors, through ignorance of the law or 
 the fact, vote for one ineligible to the 
 o£Sce, the votes are not nullities ; but 
 while they fail to elect, the office cannot 
 be given to the qualified person having 
 the next highest number of votes. The 
 election is a failure, and a new election 
 must be had. A minority of the whole 
 body of qualified electors may elect to an 
 office where the majority decline to vote, 
 or where they vote for one who is ineligi- 
 ble to the office, knoVing of the disquali- 
 fication. Notioe of the disqualifying fact, 
 and of its legal effect, may be given so 
 directly to the voter as to charge him 
 with actual knowledge of the disqualifica- 
 tion ; or the disqualifying fact may be so 
 patent or notorious as that his knowledge 
 of the ineligibility may be presumed as 
 matter of law. But not only the fact 
 which disqualifies, but also the rule or 
 enactment of law which makes it thus ef- 
 fectual, must be brought homo so clearly 
 
 to the knowledge or notice of the elector 
 as that to give his vote therewith indi- 
 cates an intent to waste it in order to 
 render his vote a nullity. 
 
 But in Indiana the view is taken that, 
 _ whether an election, because of the ineli- 
 gibility of the candidate receiving the 
 highest number of ballots, is a failure, and 
 must be held over, or whether the highest 
 eligible candidate is elected, depends upon 
 circumstances : 1. If the candidate re- ' 
 ceiving the highest number of votes is 
 ineligible, but from a cause unknown to 
 the voters, and which they were not hound 
 to know — as, for example, infancy, want 
 of naturalization, and the like — the re- 
 sult is a failure, and there must be another 
 election. 2. If the voters know, or are 
 bound to know, the ineligibility of a can- 
 didate, the election is not a failure, as the 
 eligible candidate receiving the liighest 
 number of votes is legally elected. 3. 
 Where the ineligibility of a candidate 
 arises from his holding, or having held, a 
 public office, the people within the juris- 
 diction of such office are held in law to 
 know — are chargeable with notice of — 
 such ineligibility, and votes given for such 
 a candidate are of no effect, and his high- 
 est eligible competitor is elected. Guhck 
 V. "Siew, 14 Ind. 93, 102, 1860, per Perkins, 
 3. ; commenting on State v. Swearingen 
 (case of non-residency), 12 Ga. 23; Price 
 V. Baker, 44 Ind. 572, 1873; s. c. 13 Am. 
 Rep. 346, where the extent of this rule is 
 stated by Downey, 3. Opinion of judges, 
 38 Me., appendix, wliere a portion of tlie 
 people voted for a person not in being. 
 State V. Giles, 1 Chand. (Wis.) 112. 
 
 In England, candidates are previously 
 nominated and known, and the votes are, 
 or at least until very recently have been, 
 open, and there are cases there which de. 
 
§ 197.] 
 
 MUNICIPAL POPULAR ELECTIONS. 
 
 225 
 
 § 197. (136) Where it is discretionary with the municipal au- 
 thorities whether they will hold an election or not, votes at an 
 unauthorized election are simply nullities.^ Elections fixed by 
 law at a certain time and place may be legally holden, although 
 notice has not been published or given ; but if the time be not 
 defined by statute, and is to be fixed by notice, the notice required 
 is imperative.^ Time and place are generally essential, but many 
 of the details as to the conduct of elections are usually regarded 
 as directory.^ 
 
 cide or favor the proposition that votes 
 for a disqualified person, given after notice 
 of disqaalification, are thrown away, and 
 the other candidate is elected. Grant on 
 Corporations, 203-208, and cases cited. 
 But see, as to disqualification and notice, 
 Regina v. Hioms, 7 Ad. & E. 960 ; Regina 
 V. Councillors of Derby, 7 Ad. & E. 419 ; 
 and particularly Regina v. Mayor of 
 Tewkesbury, Law Rep. 3 Q. B. 629, 
 1868 ; Regina v. Ledyard, 8 Ad. & E. 535 ; 
 Rawlinson on Corporations (5thed.)64, 
 note, and authorities. " The principle of 
 these decisions," says the London Law 
 Times, January 25, 1873, "must be mate- 
 rially afi'ected by secret voting." This 
 subject was much discussed in the de- 
 bates before the Electoral Commission 
 created by Congress to decide the presi- 
 dential contest of 1876. 
 
 1 Opinions of Judges, 7 Mass. 525; 
 Same, 15 lb. 537 ; Cooley Const. Lim. 
 603; People </. Mathewson, 47 Cal. 442, 
 1874 ; George v. Oxford Township, 16 
 Kan. 72, 80, 1876; Force v. Batavia, 61 
 ni. 99 ; Marshall v. Silliman, 61 111. 218; 
 Wiley V. Silliman, 62 111. 170; Harding v. 
 R. I. & St. L. R. R. Co , 65 111. 90 ; People 
 V. Santa Anna, 67 111. 67. 
 
 2 Cooley Const. Lim. 303, and cases 
 cited ; People v. Brenham, 3 Cal. 477, 
 1851; People v. Fairbury, 51 111. 149, 
 
 1869. Computation of time of notice. Queen 
 V. Justices, 8 Ad. & E. 178 ; Mitchell v. 
 Foster, 9 Dowl. P. C. 527; Warsop u. 
 Hastings, 22 Minn. 437. 
 
 » Dickey v. Hnrlbut, 5 Cal. 343 ; Peo- 
 ple V. Knight (essentiRlness of place), 13 
 Mich. 424; Gass v. State, 84 Ind. 425, 
 
 1870. Where the legislature provided 
 that the polls of the different wards should 
 be kept open until 10 o'clock p. m. and 
 they were closed at 8 o'clock, the election 
 
 VOL. I. 15 
 
 was set aside. Pennsylvania District 
 Election, 2 Par. (Pa.) 526; Clark's Case, 
 lb. 521. Illegal adjournment of election to 
 a different place from the one designated 
 in the notice. Commonwealth v. Com^ 
 missioners, etc., 6 Rawle (Pa.), 75. 
 Where an election is held on a day subse- 
 quent to that named In the charter, the 
 acts of officers thus elected are valid, as 
 respects the public and third persons, and 
 cannot be collaterally inquired into. 
 Coles County v. Allison, 28 111. 383, dis- 
 tinguished from Hayes v. Washington 
 County, 19 III. 66, and approved in Peo- 
 ple V. Fairbury, 51 111. 149, 1869. As to 
 election held on a day prior to the date 
 provided by law, see People v. Keeling, 
 4 Col. 127. Title of oflicers elected before 
 the legal incorporation of a place may be 
 validated by the legislature. State v. 
 Kline, 23 Ark. 587 ; post, sees. 256, 276, 
 892 n. 
 
 It is now a canon of election law that an 
 election is not to be set aside for a mere 
 informality or irregularity which cannot 
 be said in any manner to have affected 
 the result of the election. The Queen 
 V. The Rector of S t. Mary, Lambeth, 8 Ad. • 
 & E. 356 ; Regina ex rel. Walker v. Mitch- 
 ell et al., 4 Upper Can. P. R. 218 ; Monk 
 Election, in re, 32 Upper Can. Q. B. 147; 
 The Queen v. Plenty, L. R. 4 Q. B. 346 ; 
 The Queen v. Ward, L. R. 8 Q. B. 210; 
 Regina v. Cousins, 28 L. T. N. S. 116; Re- 
 gina ex rd. Harris v. Bradburn, 6 Upper 
 Can. P. R. 308 , Regina ex rd. Preston w. 
 Touchburn, lb. 344 ; Shaw v. Thompson, 
 L. R. 8 Chy. Div. 233 ; People v. Cook, 
 14 Barb. (N. Y.) 259; Clifton .,. Cook, 7 
 Ala. 114; Tniehart w. Addicks, 2 Tex. 
 217 ; Dishon v. Smith, 10 Iowa, 212 ; Atty. 
 Genl. V. Ely, 4 Wis. 420; State ». Jones, 
 19 lud. 356; People v. Higgins, 3 Mich. 
 
226 
 
 MUNICIPAL COEPOIUTIONS. 
 
 [CH. IX. 
 
 Courts are anxious rather to sustain than to defeat the popular 
 will.i 
 
 § 198. (137) Thus, an inaccurate designation of the name 
 of the office voted for — as, for example, " Police Justice," 
 instead of " Police Magistrate " (the term used in the statute) 
 — will not render the votes invalid, where the legislative 
 provisions make clear the intention of the voters in thus casting 
 their ballots — to whiqh intention ^ect should be given.^ But 
 if a specific number of officers only can be chosen — for example, 
 four — ballots containing the names of more than four persons for 
 the office in question must be rejected. Any other doctrine 
 might result in giving the elector two votes. There are usual- 
 ly two competing tick'ets, and if an elector can, in the case sup- 
 posed, cast a ballot containing five names, he may one of eight. 
 
 233; Gorlmra v. Campbell, 2 Cal. 135; 
 Taylor v. Taylor, 10 Minn. 112 ; Bowland 
 ». Hildreth, 26 Cal. 161 ; Day w. Kent, 1 
 Oregon, 123 ; Piatt b. People, 29 111. 54 ; 
 Ewing V. FiUey, 43 Pa. St. 384 ; Howard 
 ». Shields, 16 Ohio St. 184 ; McKinney v. 
 O'Connor, 26 Tex. 5 ; Sprague v. Norway, 
 81 Cal. 173 ; Fry v. Booth, 19 Ohio St. 25. 
 But where it appears that the irregu- 
 larity is of such character and of such 
 magnitude that it may have affected the 
 result, the election ought to be set aside. 
 Hackney Election, 81 L. T. N. S. 69; 
 Woodward v. Sarsons, L. R. 10 C. P. 743; 
 Mather v. Brown, L. U. 1 C. P. Div. 596 ; 
 Johnson v. Lambton, 40 Upper Can. Q. B. 
 297; Harrison's Municipal Manual, 4th ed. 
 " If rioting takes place to such an ex- 
 tent that ordinary men, having the ordi- 
 nary nerve and courage of men, are there- 
 by prevented from recording their votes, 
 the election is void by the common law, 
 for the common law provides that an 
 election should be free in the sense that 
 a.11 persons shall liave an opportunity of 
 coming to the poll and voting without 
 fear or molestation." Nottingham in re, 
 1 O'M. & H. 245 ; Stafford, in re, lb. 234; 
 Drogheda, in re, lb. 252. The freedom of 
 elections is of the utmost importance. 
 All attempts to interfere with the electors 
 in the peaceable and quiet exercise of 
 their rights, or to improperly influence 
 them against their judgment or desire, is 
 a crime; and in addition to the ordinary 
 
 punishment of the crime of bribery of an 
 elector it is a constitutional provision in 
 many states that whoever shall be con- 
 victed of the crime shall forfeit the right 
 to any office of profit or trust under the 
 state. McCrary, Elections, sec. 482. 
 
 1 Skerritt's Case, 2 Par. (Pa.) 516; 
 Boileau's Case, 2 Par. (Pa.) 505 ; Carpen- 
 ter's Case, 2 Par. (Pa.) 537 ; New Orleans 
 V. Graihle, 9 La. An. 573; Clifton v. 
 Cook, 7 Ala. 114; People v. Cook, 14 
 Barb. (N. Y.) 259; 8 N. Y. 67 ; Kegina v. 
 Touchburn, 6 Upper Can. P. R. 844; 
 United States v. Memphis, 97 U. S. 284, ap- 
 proving text. The rule as therein stated is 
 regarded by Mr. Justice Codey as " an 
 eminently proper one, and to furnish a 
 very satisfactory test of what is essential, 
 and what not, in election laws." Const. 
 Lira. 618. See, also, as to charter elec- 
 tions and returns, Heath, in re, 3 Hill (N. 
 Y.), 42, 53; People v. Stevens, 5 Hill, 616 ; 
 Morgan v. Quackenbush, 22 Barb. (N. 
 Y.) 72. Courts will not enjoin municipal 
 elections unless the power and right to do 
 so plainly exist. Smith v. McCarthy, 56 
 Pa. St. 859; post, see. 808, note. The 
 legislature may ratify the title to an office 
 in which case it cannot be questioned on 
 quo warranto. People v. Flanagan, 66 N. 
 Y. 237, 1876. Acts of officers de facto, 
 post, sec, 221, note ; compensation or sal- 
 ary of officers de facto, Samis u. King, 
 40 Conn. 298, 1873. 
 
 2 People 0. Matteson, 17 111. 167, 1865. 
 
§ 200.] 
 
 MUNICIPAL POPULAR ELECTIONS. 
 
 227 
 
 and thus vote (if he chooses to insert the names) for both tick- 
 ets.^ 
 
 § 199. (138) Receiving illegal or improper votes will not alone 
 vitiate an election. It must be shown affirmatively, in order tp 
 overturn the declared result, that the wrongful action changed 
 it. This rule applies to corporation elections as well as others.^ 
 
 Special Tribunal to decide Election Contests for Municipal Offices. 
 
 § 200. (139) A constitutional provision that the judicial power 
 of the state shall be vested in a supreme and inferior courts, does 
 
 1 People V. lioomis, 8 Wend.(N. Y.) 396, 
 1832 ; People ». Seaman, 5 Denio (N. Y.), 
 409 ; State o. Griffey, 6 Neb. 161, 1876. 
 Where only one vacancy exists, votes given 
 for two persons jointly are thrown away. 
 Eex I). Mayor of Leeds, 7 Ad. & E. 963 ; 
 and in this case it was held that a third 
 candidate chosen by a single regular vote 
 was elected, but as to votes being thrown 
 away, see supra. Where, by an erroneous 
 construction of the act, an election has 
 been held for but one councillor, instead 
 of two, the candidate second on the poll 
 cannot have sl^ mandamus to admit him to 
 the oflSce. Regina v. Hoyle, H. L. 1855, 
 cited in Rawl. on Corp. 65, note. His 
 remedy is, by mandamus, to have a new 
 election held for councillor, or (if the 
 oflSce be filled) by a quo warranto, lb. The 
 voting papers (corresponding in function 
 to the American ballot, except that it is 
 to be signed by the voter and openly 
 voted) must distinguish between different 
 classes of candidates ; and hence where 
 an election of four councillors had taken 
 place on the 1st of November, three of 
 whom were to supply ordinary vacancies, 
 and one an extraordinary vacancy, but 
 no distinction had been made between 
 them in the notice of election, in 'the 
 voting papers, or in publishing the names 
 of the persons elected, the election was 
 irregular and void. Regina v. Rowley, 3 
 Q. B. 143 ; 8. o. in Exchequer Chamber, 
 6 Q. B. 668. See sec. 47, Municipal Cor- 
 porations Act, and also 7 Will. IV. and 1 
 Vict. oh. Ixxviii. sec. 11. Patterson, J., 
 says : " There is no objection to the votes 
 all being given on the same paper, if a 
 proper distinction were made." Regina 
 
 «. Rowley, supra; and see Rex v. Win- 
 chester, 2 Ad. & E. 215. By the Muni- 
 cipal Corporations Act, sec. 32, the voting 
 paper is required to contain " the Christian 
 and surnames of the persons for whom 
 the burgess votes, with their respective 
 places of abode, such voting paper being 
 previously signed with the name of the 
 burgess voting and the name of the street 
 in which the property for which he ap- 
 pears to be rated is situate." In con- 
 struction of this section, it is held that 
 the Christian name of the person voted 
 for need not be written out In full ; the 
 contraction ordinarily used is sufficient. 
 Regina v. Bradley, 3 E. & E. 684. But it 
 seems that an initial letter only would 
 not be sufficient. lb. Though it would 
 be in the signature of the voter. Regina 
 V. Avery, 18 Q. B. 576 ; Regina v. Tart, 1 
 E. & E. 618. " Places of abode " held to 
 mean places of residence, not of business. 
 Regina v. Hammond, 17 Q. B. 772 ; Re- 
 gina V. Deighton, 5 Q. B. 896 ; Dav. & M. 
 682. 
 
 2 Murphy, in re, 7 Cow, (N. Y.) 153, 
 1827; People v. Cicotte, 16 Mich. 283, 
 1868; First Parish v. Stearnes, 21 Pick. 
 (Mass.) 148 ; Judkins v. Hill, 50 N. H. 
 140, 1870 ; Johnston v. Charleston, 1 Bay 
 (S. C), 441, 1795. In this last case the 
 city council was specially authorized to 
 judge of elections of corporation officers, 
 and the court, respecting a contest before 
 the council, said : " If the bad votes be de- 
 ducted from the highest candidate, and he 
 still has a majority, his election is good ; 
 but if, after such deduction, the next candi- 
 date has an equal or greater number of 
 votes than the other, and it is doubtful- 
 
228 MUNICIPAL CORPORATIONS. [CH. IX. 
 
 not disable the legislature, in creating municipal corporations, 
 from providing that the city council shall be the judge of the elec- 
 tion of its mayor, members, and other officers, and from prohibiting 
 the ordinary courts of justice from inquiring into the validity 
 of the determination of the city council.^ 
 
 § 201. (140) Where, by the charter, the council are author- 
 ized to provide, by ordinance, a special tribunal before which con- 
 tested municipal elections shall be tiied, and to provide the mode 
 of procedure it may pass such ordinance after an election has 
 been held, and authorize it to determine contests arising out of 
 a previous election. After such determination, quo warranto 
 will lie against the party who was unsuccessful before the local 
 tribunal, if he continue to claim and exercise the office.^ 
 
 § 202. (141) Common law courts of general and original 
 Jurisdiction have the admitted power to inquire into the regu- 
 larity of elections, corporate and others, by quo warranto, or an 
 information in that nature, and, in certain cases, by mandamus. 
 It is not unusual for charters to contain provisions to the effect 
 that the common council or governing body of the municipality 
 " shall be the judge of the qualifications, " or " of the qualifi- 
 cations and election of its own members," and of those of the 
 other officers of the corporation. What effect do provisions of this 
 kind have upon the jurisdiction of the superior courts? The 
 answer must depend upon the language in which these pro- 
 
 which candidate had the greatest number its power to proyide, prospectively, by a 
 of valid votes, the council should send general act, the mode in which contests 
 the matter back to the people." shall be determined. See Govan v. Jack- 
 1 Mayor, etc. v. Morgan, 7 Martin, La. son, 32 Ark. 553, 1877 ; State ». Fitzger- 
 (0. S.) 1 ; 9 lb. (N. S.) 381, 1828 ; infra, aid, 44 Mo. 425, 1869 ; Ewing v. Filley, 48 
 sec. 244. In Wammaeks v. HoUoway, 2 Pa. St. 384 ; Commonwealth v. Leech, 44 
 Ala. 31, 1841, a shrievalty contest, it was Pa. St. 332; Cooley, Const Lira. 276 ; lb. 
 denied that it was within the constitu- 623, 624, note ; Smith v. New York, 37 N. 
 tional power of the legislature to deprive T. 518; People v. Mahaney, 13 Mich. 481 ; 
 a party claiming a public office of the Steele v. Martin, 6 Kan. 430, 1870. 
 right to a jury trial by making the sum- When a city charter makes the common 
 mary or extra-judicial method conclusive, council the Jinat judges of the election of al- 
 And to this effect was the opinion of two dermen, mandamus will not lie to compel 
 of the judges in The People v. Cicotte, 16 them to reinstate one whom they had ex- 
 Mich. 283. Since elections to offices are eluded without a proper hearing on the 
 not in the nature of contracts, there does merits. People v. Fitzgerald, 41 Mich. 2. 
 not seem to be any substantial renson, in ^ State v. Johnson, 17 Ark. 407, 1866 
 view of the plenary authority of the leg- (mayoralty contest), 
 islature over offices and officers, to doubt 
 
202.] 
 
 MUNICIPAL POPULAR ELECTIONS. 
 
 229 
 
 visions are couched, viewed in the light of the general laws of 
 the state on the subjects of contested elections and quo warranto. 
 The principle is, that the jurisdiction of the court remains unless 
 it appears with unequivocal certainty that the legislature in- 
 tended to take it away. Language like that quoted above will 
 not ordinarily have this effect, but will be construed to afford 
 a cumulative or primary tribunal only, not an exclusive one. 
 A provision that no court should take cognizance of election 
 cases by quo warranto, etc., would doubtless be sufficient to divest 
 the jurisdiction of the judicial tribunals. And so, in general, of a 
 provision that the council should have the sole or the final 
 power of deciding elections.^ 
 
 » Heath, in re, 3 Hill (N. Y.), 42, 52, 
 and cases cited by Cowen, J., who is of 
 opinion that no mere negative words, and 
 that nothing less than express words, will 
 oust the supervisory jurisdiction of the 
 courts. The amended charter of a city 
 provided " that the board of councilmen 
 shall be the Jinal judges of the election 
 returns and of the validity of elections 
 and qualifications of its own members." 
 Park, J., says : " The statute in question 
 was clearly intended to apply to cases of 
 this kind. It makes the common council 
 of the city final judges of the election re- 
 turns and qualifications of its members. 
 By the use of the word ' final ' the legis- 
 lature intended to divest the superior 
 court of jurisdiction in such cases, and 
 make the common council the sole tribu- 
 nal to determine the legality of the elec- 
 tion of its members," citing, inter alia, 
 Commonwealth v. Baxter, 35 Fa. St. 263 ; 
 Commonwealth v. Leech, 44 Pa. St. 332 ; 
 Lamb v. Lynd, 44 Pa. St. 336 ; Common- 
 wealth V. Meeser, 44 Pa. St. .841 ; People v. 
 Wetherell, 14 Mich. 48 ; O'Docherty v. 
 Archer, 9 Tex. 295 ; Sellick v. Common 
 Council of South Norwalk, 40 Conn. 859, 
 1873. In Linegar v. Rittenhouse, 94 111. 
 208, and Oregon v. McKennon, 8 Oregon, 
 485, the text is cited and applied. In Cali- 
 fomia, when the charter of a city provides 
 that the common council " shall judge of 
 the qualifications, elections, and returns of 
 their own members," the council possesses 
 the exclusive authority to pass on the 
 subject, and the courts have no jurisdic- 
 tion to inquire into the qualifications, 
 elections, or returns of members of the 
 
 council. People u. Metzker, 47 Cal. 524, 
 1874. See in support of the text, Grier 
 V. Shackelford, Const. Bep. 642 ; State o. 
 Fitzgerald, 44 Mo. 425, 1869 ; Common- 
 wealth V. McCloskey, 2 Eawle (Pa.), 369 
 (two judges dissenting) ; Strahl, in re, 16 
 Iowa, 369, 1864; State v. Funok, 17 Iowa, 
 365, 1864; Kane v. People, 4 Neb. 509, 
 1876 ; Bateman v. Megowan, 1 Met. (Ky.) 
 533 ; Wammacks v. HoUoway, 2 Ala. 31, 
 1841 (sheriffalty contest) ; Hummer v. 
 Hummer, 3 G. Greene (Iowa), 42 ; Mack- 
 lot V. Davenport, 17 Iowa, 379 ; Gass u. 
 State, 34 Ind. 424, 1870. State v. Mar- 
 low, 15 Ohio St. 114 ; distinguished, Kane ' 
 V. People, 4 Neb. 509, 1876 ; post, chapters 
 on Quo Warranto, Mandamus, and Rem- 
 edies against Illegal Corporate Acts. 
 Action of board of canvassers not conclu- 
 sive of the right of the party to an office, 
 though it may deprive him, in the first 
 instance, of a commission or certificate. 
 Quo warranto lies notwithstanding the de- 
 termination of the board of canvassers, 
 on which full investigation may be had. 
 State V. Governor, 1 Dutch. (N. J.) 831, 
 1856 ; State v. The Clerk, lb. 354 ; Peo- 
 ple V. Kildufi; 15 111. 492 ; Cooley Const. 
 Lim. 623, and cases cited; Hadley v. 
 Mayor, 33 N. Y. 603, 1865; Anthony v. 
 Halderman, 7 Kan. 50, 1871. 
 
 Conformably to the views expressed 
 in the text it has been recently decided 
 by the Supreme Court of Pennsylvania, 
 that the right given to city councils to be 
 the judges of the qualification of their 
 own members "in like manner as each 
 branch of the legislature," does not pre- 
 clude the jurisdiction of the courts to try 
 
230 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 § 203. (142) Agreeably to the rule just stated, a clause in 
 the charter of a municipal corporation, that the city council " shall 
 be the judges of the election, returns, and qualifications of their 
 own members, and of aU other officers of the corporation," was 
 held by the Supreme Court of Delaware not to oust the Superior 
 Court of the state (invested with the usual powers of the King's 
 Bench) of its superintending jurisdiction over corporations, and 
 it was declared, if the council should erroneously decide that 
 a person duly elected by the people ((to an office was not qualified 
 
 the question of qualification by quo war- 
 ranto, though the opinion of tlie profes- 
 sion seems to be otherwise, and it was 
 otherwise held in the court below. Com- 
 monwealth V. Huhn, 70 Pa. St. 465, 1872. 
 A special remedt/ given by statute is 
 cumulative and not exclusive of the ordi- 
 nary jurisdiction of the courts, unless 
 such be the manifest intention of the 
 statute. Attorney General v. Corporation 
 of Poole, 4 Mylne & Cr. 17, overruling 2 
 Keen, 190 ; see, also. Attorney General v. 
 Agpinwall, 2 Mylne & Cr. 613. And 
 hence a breach of a public trust by a 
 municipal corporation is held, in England, 
 to be cognizable in chancery, notwith- 
 standing a special appeal be given in the 
 particular matter to the lords of the 
 treasury. lb. Parr v. Attorney General, 
 8 CI. & F. 409 ; Attorney General v. Cor- 
 poration of Litchfield, 11 Beav. 120 ; see 
 chapter on Bemedies against Illegal 
 Corporate Acts, post, sec. 910. A court 
 of chancery has no jurisdiction to enjoin 
 the holding of an election by the people, 
 and a writ issued for that purpose is 
 void, and disobedience thereof will not 
 subject a party to punishment as for a 
 contempt of court. Darst v. People, 62 111. 
 306, 1872 ; Walton v. Develing, 61 111. 201, 
 1871 ; post, sees. 205, 255, 275, 890, 906, n. 
 Courts of Equity have no inherent power 
 to try contested elections, and have never ex- 
 ercised it except in cases where it has 
 been conferred by express enactment or 
 necessary implication therefrom. Dickey 
 V. Reed, 78 111. 261, 1875. Where an elec 
 tion was held in a city on the question of 
 whether the municipality should become 
 incorporated under the general incorpo- 
 ration act for cities and villages, and a 
 writ of iqjunction was issued out of the 
 
 Circuit Court enjoining the board of can- 
 vassers from canvassing the returns and 
 declaring the result, it was held that the 
 Circuit Court had no power to issue the 
 writ; that it was utterly void; that the 
 canvassers were not bound to obey it, and 
 could not be punished for contempt for 
 refusing to do so. lb. An ii^unctioD, re- 
 straining a board of canvassers from 
 proceeding to canvass and certify the 
 result of an election until the further 
 order of the judge granting the same, 
 where the statute requires the board to 
 proceed by a certain day, is unauthorized. 
 State, ex rel. Bloxham v. State Board of 
 Canvassers, 13 Fla. 55, 1869. Equity 
 will not interfere, by injunction, to re- 
 strain persons from exercising the /unctions 
 of public offices on the ground of the want 
 of binding force in the law under which 
 their appointments were made, but will 
 leave that question to be determined at 
 law. Sheridan v. Colvin, 78 111. 237, 1875. 
 In this case it was sought to enjoin the 
 city council from enforcing an ordinance 
 on the sole ground that, if the ordinance 
 was enforced, it would deprive the com- 
 plainants of the functions of offices which 
 they held in the city ; and it was held that 
 a Court of Chancery had no jurisdiction. 
 lb. Jurisdiction in equity over contested 
 county seat elections in Illinois. Dickey v. 
 Reed, 78 III. 261, 1875; Shaw i>. Hill, 67 
 111. 455, 1873. The expenses of a municipal 
 election must be home by the municipality 
 and not in whole, or in part, by the 
 county ; but to a bill by resident tax- 
 payers to restrain the city from paying 
 the election officers for their services 
 such officers are necessary parties. Bing- 
 ham V. Camden, 29 N. J. Eq. (2 Stew.) 
 464, 1878 ; Butcher v. Camden, lb. 478. 
 
§ 205.] 
 
 MUNICIPAL POPULAR ELECTIONS. 
 
 231 
 
 to hold it, a mandamus might issue commanding them to admit 
 him to the office.^ 
 
 § 204. (143) Where the legislative intent is clear, that the 
 action of the council in contested election cases shall he final, the 
 court will not inquire into election frauds, since the council is 
 the judge of this matter as of others pertaining to the election ; 
 but the courts will ipquire whether, in point of law, there was an 
 office or vacancy to be filled.^ 
 
 § 205. (144) Where, by statute, the returns of all municipal 
 elections were declared to be " subject to the inquiry and de- 
 termination of the Court of Common Pleas upon the complaint 
 of fifteen or more voters filed in said court within twenty^ days, 
 and the court, in judging of such elections, was directed to pro- 
 ceed upon the merits thereof, and determine finally concerning 
 the same according to the laws of the commonwealth," this was 
 
 1 State B. Wilmington, .3 Harring. 
 (Del.) 294, 1840; s. p. State «. Fitzger- 
 ald, 44 Mo. 426, 1869. So in Iowa, where 
 the city ctiarter provided tliat the council 
 should be " ttie judge of the election and 
 qualifications of its own members," but 
 no ordinance had been passed prescribing 
 any method of trial, it was held tliat the 
 mere provision in the charter did not pre- 
 clude a contestant from a resort to an in- 
 formation in the nature of a quo warranto. 
 State V. Funcli (mayoralty contest), 17 
 Iowa, 866, 1864. In a previous case the 
 same court decided that under a charter 
 making the council "judges of the elec- 
 tion, returns, and qualifications of their 
 own members," it was competent for the 
 council to pass a general ordinance pro- 
 viding for the trial of contested elections 
 of city officers, and making the council 
 the tribunal for the trial of the same, 
 such an ordinance being consistent with 
 the general laws of the state, which, in 
 providing special tribunals for contesting 
 state, county, and township ofiicers, 
 omitted to make any special provision for 
 contested elections to municipal offices. 
 Strahl, in re, 16 Iowa, 869, 1864 (mayor- 
 alty contest). See sec. 202, note. 
 
 ' Commonwealth i;. Leech, 44 Pa. St. 
 332, 1863 ; Commonwealth v. Meeser, lb. 
 
 341. Construction of words making the 
 number of members of the council from 
 a ward depend upon " the list of the taxa- 
 ble inhabitants." 76.; People ». Weth- 
 erell, 14 Mich. 48 ; Tompert v. Lithgow, 
 1 Bush (Ky.), 176, 1866. 
 
 Fending legal proceedings, the court, 
 in favor of the officer apparently entitled, 
 enjoined the adverse claimant from attempt- 
 ing to take possession of the office. Ew- 
 ing V. Thompson, 43 Pa. St. 384, 1862 ; 
 Kerr v. Trego, 47 Pa. St. 16, 292, 1864. 
 Certificate of election is the prima fade 
 written title to office, and remains so 
 until regularly set aside or annulled. lb ; 
 post, sec. 275 ; People r. Thatcher," 55 N. 
 Y. 525, 1874. 
 
 The council, as board of canvassers, can- 
 not investigate the legality of an election, 
 but are concluded by the returns of the 
 judges ; but the council, when sitting as 
 a tribunal to judge of the election of 
 members of their body, may go behind 
 the returns and inquire into the fact as 
 to who is elected. State v. Bahway, 
 33 N. J. L. Ill, 1868. Under special 
 charter the declaration and decision of 
 the council as to who are elected, held 
 essential to a complete election. People 
 u. North, 72 N. Y. 124, 1878. 
 
232 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 held to exclude the remedy by quo warranto and all common 
 law remedies as to matters which might have been investigated 
 in the special mode prescribed by the statute. The opinion was 
 expressed that the judgment of the Common Pleas was final ; 
 that it could not be reversed by quo warranto or in any other 
 collateral manner ; and that even a certiorari would enable the 
 appellate court to examine only the regularity of the proceedings 
 of the Common Pleas, but not to examine the case on its merits 
 as disclosed in the evidence.^ 
 
 \ Commonwealth v. Garrigues, 28 Pa. 
 St. 9, 1857; Commonwealth v. Baxter, 
 35 Fa. St. 263 ; Commonwealth ». Leech, 
 44 Fa. St. 332; followed and approved. 
 State V. Marlow, 15 Ohio St. 114; see 
 Ewing V. Filley, 43 Pa. St. 386; Lamb 
 17. Lynd, 44 Fa. St. 336. Ellison, in re, 
 20 Gratt. (Va.) 10, 29, 1870, commenting 
 on Commonwealth v. Garrigues, supra. 
 Function and powers of common council 
 as election canvassers. Morgan v. Quack- 
 enbush, 22 Barb. (N. Y.) 72. A city 
 council, under authority, " to canvass re- 
 turns and determine and declare the 
 result " of elections to municipal offices, 
 exhausts its power when it has once le- 
 gally canvassed the returns and declared 
 the result, and it cannot at a subsequent 
 meeting, make a re-canvass and reverse 
 its prior determination. Hadley v. Mayor, 
 38 N. Y. 603, 1865. The rule stated in 
 the text, that the original or superintend- 
 ing jurisdiction of the superior courts 
 should not be held to be taken away by 
 any language which does not expressly, 
 or by unequivocal implication, show this 
 to have been the legislative intention, is 
 a salutary one, but seems in some cases 
 not to have been verj- strictly observed. 
 In Texas, where the statute conferred 
 upon the county court the power to de- 
 termine contested elections of county offi- 
 cers, and gave no right to appeal, it was 
 considered to be the policy of the statute 
 to secure an early determination of such 
 disputes, and it was held that the judg- 
 ment of the county court could not be 
 revised either upon appeal or certiorari, 
 and was final. O'Docherty v. Archer, 9 
 Tex. 295, 1852. The special mode pro- 
 vided by law for contesting elections must 
 be followed. Dickey v. Keed, 78 111. 261, 
 1876 ; post, ch. xxii. 
 
 The constitution of Ohio requires the 
 General Assembly " to determine by law 
 before what authority, and in what man- 
 ner, the trial of contested elections shall 
 be conducted," and accordingly a specific 
 mode of contesting elections in that state 
 was provided by statute ; and this mode 
 was held to exclude the common law 
 mode by proceedings in quo warranto, and 
 the result to bind the state as well as in- 
 dividuals. State V. Marlow, 15 Ohio St. 
 114, 1864. 
 
 In South Carolina it was held, where 
 the legislature had authorized managers 
 of elections "to hear and determine" 
 cases of contested elections, without mak- 
 ing any provision for an appeal, or any 
 reference in the act to proceedings by quo 
 warranto that their decision was without 
 any express statutory declaration to that 
 effect, final and conclusive, and that 
 courts had no control over it. Grier v. 
 Shackelford, 3 Brev. (South Car.) 491, 
 1814 (Noit, J., dissenting) ; followed in 
 the State «. Deliesseline, 1 McCord 
 (South Car.), 52, 1821 (two judges dis- 
 senting). See State v. Huggins, Harper 
 Law, 94, 1824. But note remarks of 
 Evans, J., in State v. Cockrell, 2 Rich. 
 (South Car.) Law, 6, who, speaking of 
 the subsequent act of 1839 (requiring the 
 managers to hear and determine the va- 
 lidity of the election, and providing that 
 their " decisions shall be final "), says : 
 " I take it to be clear that the validity of 
 an election, in all cases, must (under the 
 act), in the first instance, be decided by 
 the court of managers duly authorized 
 according to law. All questions, whether 
 of law or fact, must be submitted to this 
 tribunal. Their decisions, on questions 
 of fact, must necessarily be final, as nn 
 appeal is given ; but I do not mean to say 
 
207.] 
 
 MUNICIPAL POPULAR ELECTIONS. 
 
 233 
 
 Power to create and appoint Municipal Officers. 
 
 § 206. (145) At common law, municipal corporations may 
 appoint officers, but only such as the nature of their constitution 
 requires. The right of electing such officers as they are autho- 
 rized to have is incidental to every corporation, and need not be 
 conferred by charter. The power of appointing officers is, at 
 common law, to be exercised by the corporation at large, and not 
 by any select body, unless it is so provided in the charter. The 
 powers of corporate officers proper at common law are very 
 limited, extending only to the administration of the by-laws and 
 charter regulations of the corporation.^ 
 
 § 207. . (146) In this country the charter or constitution of 
 the corporation usually provides with care as to all the principal 
 officers, such as mayor, aldermen, marshal, clerk, treasurer, and 
 the like, and prescribes their various duties. This leaves but 
 little necessity or room for the exercise of any implied power to 
 create other offices and appoint other officers. ^ It is supposed. 
 
 that their errors of law may not be cor- 
 rected by certiorari, or such of the pre- 
 rogative writs as may be best suited to 
 the case." Accordingly, where an elec- 
 tion within the act had not been con- 
 tested before the managers, the court 
 refused leave to file an information in the 
 nature of a quo warranto. It was after- 
 wards stated, by a distinguished judge in 
 that state, that the scrutiny of municipal 
 elections, as an incidental power, belongs 
 in the first place to the city council ; and 
 if they abuse that power, the correction 
 of that abuse devolves upon the courts by 
 information in the nature of a quo war- 
 ranto. Per O'Neall, J., in State v. Schni- 
 erle, 6Rich. Law (South Car.), 299, 301, 
 1852 {Quo. War. to test validity of de- 
 fendant's election as mayor of Charles- 
 ton), s. p. Johnson v. Charleston, 1 Bay 
 (South Car.), 441, 1795. But the city 
 council, in order to determine a contest 
 for a municipal office, cannot swear the 
 individual voters to compel them to de- 
 clare for whom they voted. This is an 
 inquisitorial power unknown to the prin- 
 ciples of our government, and of danger- 
 ous tendency. lb. See also People v. 
 Pease, 27 N. Y. 81 ; People v. Thaoher, 
 55 N. Y. 625, 1874; People v. Cicotte, 16 
 
 Mich. 283 ; Cooley, Const. Lim. 604-606. 
 Election contests for office will not be 
 determined on habeas corpus ( Strahl, in re, 
 16 Iowa, 369), nor in general on bill in 
 equity. Hagner v. Heyberger, 7 "Watts & 
 S. (Pa.) 104 ; but see Kerr v. Trego, 47 
 Pa. St. 292 ; supra, sec. 202, note ; post, 
 sec. 275; Hughes v. Parker, 20 N. H. 58 ; 
 Cochran v. McCleary, 22 Iowa, 75, 1867, 
 and chapter on Corporate Meetings, post. 
 But as to county seat contest, where fraud 
 is alleged, see Brown v. Smith, 46 111. 
 See also ch. xxii. post. 
 
 1 Willc. 234, pi. 598 ; 76. 297, pi. 767 ; 
 lb. 298, pi. 769; Glover, 220; Vintners 
 ». Passey, 1 Burr. 237 ; Hasting's Case, 1 
 Mod. 24 ; Rex v. Barnard, Comb. 416. 
 
 " Where it was manifest, from the 
 whole tenor of a city charter, that it was 
 the intention of the legislature itself to 
 specify therein all the offices, and desig- 
 nate all the officers to be elected or 
 chosen, and to regulate the mode of ap- 
 pointment, it was held that the city coun- 
 cil could not, by virtue of an inherent or 
 implied power, create another officer, fix 
 his term, provide for his appointment, 
 and clothe him with the powers of a 
 municipal officer. Hoboken v. Harrison, 
 1 Vroora (30 N. J. L.), 73, 1862. Itissaid, 
 
234 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX 
 
 however, when not in contravention of the charter, that muni- 
 cipal corporations may, to a limited extent, have an incidental 
 right to create certain minor offices of a ministerial or executive 
 nature. Thus, if power be conferred to provide for the health of 
 the inhabitants, this would give the corporation the right to pass 
 ordinances to secure this end, and the execution of such ordi- 
 nances might be committed to a health officer, although no such 
 officer be specifically named in the organic act, if this course 
 would not conflict with any of its provisions. But the power to 
 create offices even of this character would be limited to such as 
 the nature of the duties devolved on the corporation naturally 
 and reasonably required. 
 
 The provisions of the charter as to time and mode of election, 
 the appointment, qualifications, and duration of the terms of offi- 
 cers must be strictly observed. Therefore, an ordinance which 
 makes eligible those who, by the charter, are not so, ^ or which 
 
 in the opinion, that the power to create 
 municipal officers should be expressly con- 
 ferred. In New Jersey, pound-keepers, 
 from a very early period, had been pab- ■ 
 lie township officers, elected in the same 
 way as other officers of the township. 
 Under these circumstances it was held 
 that a municipal corporation could not, 
 without express authority therefor; estab- 
 lish another public pound within the 
 limits of the township, and prescribe reg- 
 ulations and fees variant &om those pre- 
 scrilied by the general law ; and it was 
 further lield, that the office of pound- 
 keeper could not be considered as one 
 essential to the business of the corpora- 
 tion ; nor is a pound-keeper one of those 
 subordinate officers which all munibipal 
 corporations may, as of course, appoint 
 It was, however, admitted by the court 
 that where such a corporation has power 
 to do an act, it has the incidental power 
 to appoint persons to carry it into eflect. 
 White ». Tallman, 2 Dutch. (N. J.) 67, 
 1856. Construction of power to appoint 
 weigh master. Hoffinan v. Jersey City, 5 
 Vroom (34 N. J. L.), 172. Power to ap- 
 point when office is vacated " by death or 
 disability," held to authorize appoint- 
 ment where a vacancy is caused by resig- 
 nation. State V. Newark, 3 Butch. (N. 
 J.) 185. Authority to a municipal cor- 
 poration to appoint an officer was inferred 
 from the frequent mention of the office 
 
 and its duties in the charter. People v. 
 BedeU, 2 Hill (N. T.), 196; see, also, 
 Field V. Girard CoUege, 54 Pa. St. 233. 
 Legislative prohibition to common coun- 
 cil against creating new offices extends to 
 clerks, but not to janitors and ordinary 
 servants. Costello «. Mayor, etc. of N. 
 T., 63 N. Y. 48, 1875; Sullivan v. Mayor, 
 etc. of N. Y., 53 N. Y. 652. Power to 
 appoint marshal under charter of East 
 St. Louis. See People v. Canty, 55 111. 
 33. 
 
 1 Hex V. Mayor of Weymouth, 7 Mod. 
 373; Rex v. Bumstead,2 B. & Ad. 699; 
 Eex V. Spencer, 3 Burr. 1827 ; Rex v. 
 Chitty, 5 Ad. & E. 609. A city council 
 cannot elect its own members when the 
 law provides that they shall be elected 
 by ballot, by the electors of the city. 
 Kearney v. Andrews, 2 Stockt. (N.J.) 70. 
 Majority of council essential to valid ap- 
 pointment of city treasurer. State v. 
 Patterson, 6 Vroom (35 N. J. L.), 190; 
 See Douglass v. Essex, 9 Vroom (38 N. 
 J. L.), 214 ; State v. Jersey City, 2 Dutch. 
 (N.J.) 444, 447. Officer rfe/acto. Power of 
 mayor. The appointment of a person to 
 a city office by a mayor under a law 
 which requires confirmation by the coun- 
 cil gives the appointee no right to the 
 office without such confirmation by the 
 proper and legal city council. People v, 
 Weber, 89 111. 347. 
 
§ 208.] MUNICIPAL POPULAR ELECTIONS. 235 
 
 abridges the term of ofiBcers, as fixed by the charter, is unautho- 
 rized and void.^ 
 
 § 208. (147) Every municipal corporation is provided with 
 an executive head, usually styled the mayor. In the chapter on 
 Corporate Meetings we have pointed out the difference, in some 
 respects, between the mayor of an old corporation in England and 
 the officer known by that name in this country. In both coun- 
 tries the mayor is the head officer or executive magistrate of the 
 corporation ; but with us it is important to bear in mind that all 
 his powers and duties depend entirely upon the provisions of the 
 charter or constituent act of the corporation, and valid by-laws 
 passed in pursuance thereof, and these vary, of course, in dif- 
 ferent municipalities. It is usually made his duty, however, to 
 see that municipal ordinances are executed, and to preside at 
 corporate meetings ; and he is frequently expressly declared to be 
 a member of the council or local legislative body. Properly and 
 primarily his duties are executive and administrative, and not 
 judicial or legislative. But judicial duties are often superadded 
 to those which properly appertain to the office of mayor, and he 
 is invested with the authority to administer not only the ordi- 
 nances of the corporation, but also judicially to administer the 
 laws of the state.^ 
 
 1 Stadler v. Detroit, 13 Mich. 346, office of city clerk, Mohan v. Jackson, 62 
 
 1865; Vason v. Augusta, 38 Ga. 542, 1868. Ind. 699, 1876. 
 
 Chapter on Ordinances, post. The office = Waldo v. Wallace, 12 Ind. 569, 1869, 
 of treasurer of a municipal corporation is and growing out of it, see, also, Gulick v. 
 not a "civil office" within the meaning of New, 14 lb. 93, 1860; Howard v. Shoe- 
 the provision of the constitution exclud- maker, 35 Ind. Ill, 1871 ; Reynolds v. 
 ing the clergy from " holding any dvil Baldwin, 1 La. An. 162, 1846 ; Muscatine v. 
 office in this state, or from being a mem- Steck, 7 Iowa, 505; 2 lb. 220; Strahl, in 
 ber of the legislature." State v. Wil- re, 16 Iowa, 369 ; Shafer v. Mumma, 17 
 mington, 3 Barring. (Del.) 294, 1840; Md. 331 ; Luehrman v. Taxing District, 
 see Commonwealth v. Dallas, 3 Yeates 2 Lea, 425. Approving text. Slater v. 
 (Pa.), 300. "Lucrative offices," in the Wood, 9 Bosw. (N. Y.) 15; ante, ch. ili. 
 constitutional sense, defined to embrace Morrison v. McDonald, 21 Me. 550, 1842; 
 county recorder, commissioner, township State v. Maynard, 14 111. 419 ; Common- 
 trustee, and supervisor. Daily v. State, wealth v. Dallas, 3 Yeates (Pa.), 300, 
 8 Blackf 329 ; Creighton v. Piper, 14 Ind. 1801 ; Starr ». Wilmington, 3 Harring. 
 182; Howard ». Shoemaker, 35 Ind. 111. (Del.) 294, 1839; Prell w. McDonald, 7 
 The office of city councilman is not " lu- Kan. 426, 1871. This section of the text 
 crative" within the prohibition of the cited and followed. Martindale v. Palmer, 
 state constitution against the same per- 52 Ind. 411, 1876. 
 
 son holding more than one lucrative office Power of mayor, in his official name, 
 
 at the same time. State v. Kirk, 44 Ind. to bring suit to prevent or restrain viola- 
 
 401, 1873 ; s. c. 15 Am. Rep. 239. As to tions of law by other municipal officers, 
 
236 
 
 MXJNICIPAX COSPOEATIONS. 
 
 [CH. IX. 
 
 § 209. (148) The office of mayor has long existed in England,^ 
 and many of its general features have been adopted in this country. 
 
 declared. Genois, Mayor, etc. v. Lock- 
 ett, 13 La. 645, 1838. But quare i The 
 mayor of a city has no incidental power 
 to execute an appeal bond for the corpora- 
 tion ; and such a bond was regarded as 
 not even incidental to the power of tak- 
 ing an appeal, but must be authorized by 
 the council. Baltimore v. Railroad Co., 
 21 Md. 60, 1863. A precept to collect a 
 street assessment, signed by a member of 
 the council acting temporarily as presi- 
 dent thereof, is void, when the statute 
 requires the signature of the mayor. 
 Jefiersonville v. Patterson, 82 Ind. 140, 
 1869. Injunction will lie to restrain a 
 sale on such a precept. lb. See chapter 
 on Bemedies against Illegal Corporate 
 Acts, post. 
 
 As to nature and extent of authority 
 of mayors and other civil officers to em- 
 ploy force for the prevention or suppres- 
 sion of mobs, riots, etc., see Ela v. Smith, 
 5 Gray (Mass.), 121, 1855, arising out of 
 the arrest of Anthony Burns as a fugitive 
 slave. Power of mayor to order demoli- 
 tion of works and buildings in public 
 places. Henderson v. Mayor, 3 La. 563. 
 Mayor may sanction an ordinance passed 
 by a common council, whose term has 
 expired. Elmendorf v. Ewen, 2 N. Y. 
 Leg. Obs. 85. Notice to mayor. Nichols 
 V. Boston, 98 Mass. 89. Police and execu- 
 tive power of mayor. Shafer v. Mumma, 
 17 Md. 331 ; Slater v. Wood, 9 Bosw. (N. 
 Y.) 15; Pedrick v. Bailey, 12 Gray 
 (Mass.), 161 ; Nichols v. Boston, 98 Mass. 
 39. Alderman acting as mayor. State 
 V. Buffalo, 2 Hill (N. Y.), 434. Judicial 
 power of mayor. See Municipal Courts, 
 post; Prell v. McDonald, 7 Kan. 426; 
 Howard u. Shoemaker, 35 Ind. Ill, 1871. 
 Presence and functions of mayor at 
 meetings of the council. See chapter on 
 Corporate Meetings, post. 
 
 Liability of mayor in Upper Canada to 
 private actions in respect to his official 
 acts. Fair v. Moore, 8 Up. Can. C. P. 
 484 ; Moran v. Palmer, 13 lb. 450, 528. 
 Fraud of mayor restrained and relieved 
 against. Patterson v. Bowes, 4 Grant, 
 170; lb. 489 ; post, sec. 910, note. 
 
 1 History and nature of office of mayor, 
 consult : 4 Jacob's Law Diet. 264, 265 ; 
 2 Toml. Law Diet. 540; 2 Bouv. 150; 
 
 Spelm. Gloss. "Mayor"; Ela v. Smith, 5 
 Gray (Mass.), 121, 1855; Achley's Case, 
 4 Abb. Pr. Hep. 35, 1856 ; Cochran v. Mc- 
 Cleary, 22 Iowa, 75, 82, 1867 ; Nichols v. 
 Boston, 98 Mass. 89 ; Fletcher v. Lowell, 
 16 Gray (Mass.), 108; ante, sees. 9, 174; 
 post, sees. 253, 260, 271, 331, 428. The 
 office in England is quite ancient. In 
 1204 King John made.the bailiff of King's 
 Lynn a mayor, with administrative pow- 
 ers. The title was a common one as 
 early as the time of Braeton. 
 
 Mr. Norton, in his valuable " Commen- 
 taries on the History, Constitution, and 
 Chartered Franchises of the City of 
 London," says that the first special grant 
 of the mayoralty to the city of London 
 was made by King John in a charter 
 dated on the ninth day of May, in the six- 
 teenth year of his reign, a. d. 1207. This 
 charter declares that the king has granted 
 and confirmed to the barons of London 
 the right of choosing a mayor every 
 year, and at the end of the year of re- 
 moving him and substituting another, if 
 they will, or electing the same again. He 
 is to be presented to the king, and swear 
 to be faithful to him. The use of the 
 word confirmed, in this charter, shows 
 that the name and officer existed before. 
 The first civic magistrate had begun to be 
 called by the name of mayor toward 
 the end of the reign of King Rich- 
 ard. The denomination of mayor, it is 
 said on the authority of legal antiquaries, 
 can be traced to a very far date among 
 the German and French nations of Eu- 
 rope. The chief governor of the town 
 communities which arose in France in the 
 eleventh century was often styled the 
 mayor. It is a matter of history that in 
 France, the mayor of the palace was the 
 governor of Paris, often holding sove- 
 reign power, and, indeed, in time, usurp- 
 ing it, since it was from one of the mayors 
 of the palace that the family of Charle- 
 magne descended. And it is suggested 
 by Mr. Norton that the term " mayor," 
 familiar to the Normans, may have been 
 originally, though remotely, derived from 
 the same source. Norton's Com., pp. 90, 
 402, 403 ; see, also, Pulling's Laws, Cus- 
 toms, etc., of London, ch. ii, 16 m. 
 
§ 210.] 
 
 CREATION AND APPOINTMENT OF OFFICERS. 
 
 237 
 
 In a former page, suggestions have been made in favor of increas- 
 ing its dignity and responsibility, as a means of ensuring more 
 satisfactory municipal rule ; but the subject is not sufficiently 
 connected with practical law to warrant more than an allusion to 
 it in a work of this character.^ 
 
 § 210. (149) The office of a police officer is not known to the 
 common law ; it is created by statute, and such an officer has, 
 and can exercise, only such powers as he is authorized to do by 
 the legislature, expressly or derivatively .^ He is an officer of the 
 state and not of the municipality in which he exercises his office.^ 
 Where police officers are, by statute, invested with all the powers 
 of constables, as conservators of the peace, this gives them au- 
 thority to arrest, upon view, intoxicated persons while guilty of 
 disorderly conduct, or other persons violating the laws, and to 
 
 1 Ante, ch. i. sec. 9, and notes. 
 
 ' Commonwealth v. Dugan, 12 Met. 
 (Mass.) 238, 1847 ; Commonwealth v. 
 Hastings, 9 Met. (Mass.) 259; ante, sees. 
 58, 60. Where a policeman is duly ap- 
 pointed under charter authority to organ- 
 ize and regulate a city watch and the 
 general police of the city, the presumption 
 is that he possesses the powers of ordi- 
 nary peace officers at common law. Doe- 
 ring o. State, 49 Ind. 56, 1874. In Massa- 
 chusetts they are peace officers, and a 
 person who assaults or obstructs them in 
 the discharge of their duties is indictable, 
 though they have not been sworn, the 
 statute not requiring this. Buttrick v. 
 Lowell, 1 Allen (Mass.), 172; Mitchell v. 
 Rockland, 52 Me. 118, 122. In The Peo- 
 ple ». Metropolitan Police Board, 19 N. 
 Y. 188, 1859, growing out of the act to 
 establish a Metropolitan Police District, 
 it was decided by a majority of the Court 
 of Appeals that, though the office was a 
 new one, yet the mode of filling it not 
 being provided by the constitution, it was 
 in the power of the legislature to confer 
 it upon persons discharging substantially 
 the same duties within a more limited 
 territorial jurisdiction, and to dispense 
 with an oath of office. See, also. People 
 V. Draper, 16 N. Y. 532, 1857, where the 
 Court of Appeals held the " Act to estab- 
 lish a Metropolitan Police District" 
 
 valid ; approved. Metropolitan Board of 
 Health v. Heister, 37 N. Y. 661, 1868; 
 McDermott v. Metropolitan Police Board, 
 5 Abb. Pr. 422 ; Police Commissioners v. 
 Louisville, 3 Bush (Ky.),697, 1868; ante, 
 sec. 58, and notes. See People v. Albert- 
 son, 55 N. Y. 50, 1873, where People v. 
 Draper, supra, is limited, questioned, and 
 distinguished. Kxtent of legislative pow- 
 er and control over appointment, powers, 
 etc. of police, health, and other local offi- 
 cers. Baltimore v. Board of Police (Balti- 
 more Police Act), 15 Md. 376, 1859 ; Met- 
 ropolitan Board of Health u. Heister, 37 
 N. Y. 661, 1868; People v. Hurlbut, 24 
 Mich. 44, 1871 ; Police Commrs. v. Louis- 
 ville, above cited, ante, sec. 58, n. Mode 
 of compensation. Worcester v. Walker, 
 9 Gray (Mass.), 78. 
 
 3 Burch V. Hardwicke, 30 Gratt. 24. 
 While a mayor under the constitution may 
 remove officers of a municipality, he can- 
 not remove a state officer though elected 
 or appointed by the people of the munici- 
 pality and paid by them ; if the maj'or 
 removes him from office he exceeds his 
 authority and is responsible to the officer 
 in a civil action for damages. lb. 
 
 A policeman of a citi/ is a public officer 
 holding his office as a trust from the state, 
 and not as a matter of contract between 
 himself and the city. Farrell v. Bridge- 
 port, 45 Conn. 191. 
 
238 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 detain them until they can be brought before a magistrate,^ If 
 such an officer releases an intoxicated person, whom he had 
 
 1 Taylor v. Strong, 3 Wend. (N. Y.) 
 384, 1829; Bacon Ab. Constable, C; 
 Commonwealth v. Hastings, 9 Met. 
 (Mass.) 259, 1843 ; Prell u. McDonald, 7 
 Kan. 426, 1871. As to power of consta- 
 bles in such cases, see 1 Hale P. C. 687 ; 
 Hawkins P. C. Book II. ch. xiii. sec. 8. 
 Where such a course is not repugnant to 
 the general law of the state, the proper 
 officers of a municipal corporation may 
 be authorized to arrest without warrant, or 
 upon view, offenders who violate ordi- 
 nances in the presence of such officers. 
 Bryan v. Bates, 15 111. 87, 1853 ; Main v. 
 McCarty, 15 111. 442; State v. LafiFerty, 
 5 Harring. (Del.) 491 ; post, sec. 414, n. 
 If an offence is committed in view of the 
 officer, he may arrest immediately, or as 
 soon thereafter as he can. Boaz v. Tate, 
 43 Ind. 60, 1873. See chapter on Muni- 
 cipal Courts, post. 
 
 Power to a city corporation to make 
 ordinances for the security, or good order, 
 or government of the place, and to ap- 
 point or elect officers to carry out ordi- 
 nances, authorizes the appointment of 
 city guards, or police officers, or peace 
 officers ; and such officers may arrest, 
 without a warrant, persons engaged in 
 breaches of the peace. City Council v. 
 Payne, 2 Nott & McCord (South Car.), 
 475, 1820. A city council may authorize 
 arrests upon view, without warrant, for 
 violation of its by-laws, when not incon- 
 sistent with the general statutes or policy 
 of the state (White «. Kent, 11 Ohio St. 
 650, 1860; Thomas v. Ashland, 12 lb. 
 127), but not otherwise. Thus, where 
 the city charter declared all by-laws in- 
 consistent with the general law to be void, 
 and where the general law did not allow 
 an officer to arrest for a misdemeanor not 
 committed in his presence, without a 
 warrant, it was held that an ordinance 
 authorizing police officers to make arrests, 
 without a warrant, for violation of ordi- 
 nances not committed in their presence, 
 was void, and would not protect the offi- 
 cer against a suit for trespass. Pester- 
 field V. Vickers, 3 Coldw. (Tenn.) 205, 
 1866. Further as to arrests, on view, 
 without information, and the duty of the 
 officer, see Doering v. State, 49 Ind. 66, 
 
 1874 ; Johnson v. Americus, 46 6a. 80, 
 1872 ; Nealest). Hay ward, 48 Ind. 19, 1874; 
 Boaz V. Tate, 43 Ind. 60, 1873; Smith v. 
 Donnelly. 66111.464, 1873 ; Soircle v. Nevis, 
 47 Ind. 289, 1874; GalUard v. Laxton, 2 
 B. & S. 363; Codd v. Cabe, L. R. 
 1 Ex. Div. 362; s. c. 13 Cox, 202; Re- 
 gina V. Chapman, 12 Cox, 4. If a private 
 individual state facts to an officer, who 
 thereupon, on his own responsibility, ar- 
 rests a person, or if he procure a magis- 
 trate to issue a warrant for taking a per- 
 son, the imprisonment is not his act, and 
 he may show this under the plea of not 
 guilty. Barber v. RoUinson, 1 C. & M. 
 330; Stonehouse v. Elliott, 6 T. R. 316; 
 Brandt v. Craddock, 27 L. J. Ex. 314 ; 
 Grinham ». Willey, 4 H. & N. 496. An 
 officer is justified in arresting without a 
 warrant upon a reasonable suspicion of a 
 felony having been committed, and of the 
 person being guilty of it, although no 
 felony has in fact been committed, and 
 whether the reasonable grounds for sus- 
 picion are matters within his own knowl- 
 edge or facts stated to him by another. 
 Lawrence v. Hedger, 3 Taunt. 14 ; Davis 
 D. Russell, 5 Bing. 355 ; Beckwith v. 
 Philby, 6 B. & C. 635 ; Hogg v. Ward, 3 
 H. & N. 417. But an officer is not in gen- 
 eral justified in arresting a person who 
 frequents a highway with intent to com- 
 mit a felony (Timson, m re, L. R. 5 Ex. 
 257 ; see also Jones, in re, 7 Ex. 686), or in 
 arresting a person for a misdemeanor with- 
 out a warrant (Matthews v. Biddulph, 3 
 M. & G. 390 ; Griffin v. Coleman, (4 H. 
 & N. 265) ; unless there be a breach 
 of the peace in his presence (Timothy 
 V. Simpson, 1 C. M. & R. 757 ; Dere- 
 court V. Corbishley, 5 El. & B. 188), or 
 danger of a renewal of it. The Queen 
 V. Light, 27 L. J. Mag. Cas. 1 ; The Queen 
 V. Walker, 23 L. J. Mag. Cas. 123 ; Poster- 
 field 0. Vickers, 3 Coldw. (Tenn.) 205. 
 It would seem that a constable having a 
 warrant to arrest is not bound to accept 
 a tender of the fine and costs. See Ar- 
 nott a. Bradley, 23 Upper Can. C. P. 1. 
 Although police officers may arrest with- 
 out warrant for crimes, it does not follow 
 that they have, the power to do so in the 
 case of lesser offences. Galliard v. Lax- 
 
§ 212.] CREATION AND APPOINTMENT OF OFFICERS. 239 
 
 arrested while conducting himself in a disorderly manner, upon 
 his promise to go directly home, he may lawfully retake him, on 
 his going into a bar-room before he is out of the officer's sight ; 
 and such arrest is justified, whether it be regarded as a recaption 
 for the original purpose, or as a new arrest for disorderly conduct 
 still continuing.^ 
 
 § 211. (150) Charters authorizing municipal officers to make 
 arrests upon view, and without process, are to be viewed in con- 
 nection with the general statutes of the state, and being in dero- 
 gation of liberty, are strictly construed ; hence an officer making 
 such an arrest, though on the Sabbath day, should instead of im- 
 prisoning, take, without unreasonable delay, the person arrested 
 before the proper tribunal and prefer a complaint against him, as 
 provided by the statutes of the state.^ 
 
 § 212. (151) A city council authorized to elect certain officers, 
 may, where no mode of election is prescribed, appoint them by 
 resolution and is not bound to elect them by ballot;^ and the 
 corporation has full control, unless specially restricted, over all 
 offices and officers existing only under by-laws.* A vote of an 
 
 ton, 2 B. & S. 361 ; Regina v. Chapman, person, arrested late at night, may be de- 
 
 12 Cox, 4; Codd t>. Cabe, 13 Cox, 202; tained until the next day before being 
 
 8. c. L. E. 1 Ex. Div. 352. taken to the court. Scircle v. Nevis, 47 
 
 1 Commonwealth o. Hastings, supra. Ind. 289, 1874. 
 
 It follows that an obstruction offered by ^ Xiov v. Commrs. of Pilotage, R. M. 
 
 a third person to the officer in making Charlt. (6a.) 302, 1830, />er Z/aw, J. ; ante, 
 
 such an arrest would be unjustifiable, sec. 94. Power of council to appoint, 
 
 lb. and when it may delegate this power to 
 
 2 Low V. Evans, 16 Ind. 486, 1868 a committee. People v. Bedell, 2 HiU 
 (action for false imprisonment); Pow w. (N.Y.), 196; Commonwealths. Pittsburgh 
 Becker, 3 Ind. 475, 1862; Vandever (police force), 14 Pa. St. 177, 1850; 
 V. Mattock, 3 Ind. 479. The delay in Wilder v. Chicago, 26 111. 182 ; Russell v. 
 taking the person arrested before a mag- Chicago (collectors), 22 111. 285; ante, 
 istrate must not be unreasonable. John- sec. 96. 
 
 son V. Americus, 46 Ga. 80, 1872. In Low ' As to plenary power and control, 
 V. Evans, it was held that there was no when not restricted, of a municipal cor- 
 authority in the officer making the arrest pomtion over offices and officers existing 
 for imprisoning the party arrested for an only under ordinances, see People v. Con- 
 indefinite time (e. g., from Sunday until over, 17 N. Y. 64, 1858 ; Waldraven o. 
 the next day), because he may be subject Memphis (right to abolish office), 4 
 to a penalty, to be recovered in a suit in CoUlw. (Tenn.) 431, 1867 ; infra, sec. 231 ; 
 the nature of an action of debt. If the Madison v. Korbly, 32 Ind. 74, 79, 1869 : 
 Courtis not in session the officer may con- Samis v. King, 40 Conn. 298, 1873. The 
 fine the person arrested until he can be power to appoint implies, in general, the 
 brought before the court, which should power to remove the appointees. People 
 be done at the earliest period. Boaz v. v. Hill, 7 Cal. 97. Thus a municipal cor- 
 Tate, 43 Ind. 60, 1873. An intoxicated poration appointing commissioners in 
 
240 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 authorized committee of a city, electing their clerk city engineer 
 for a year from a subsequent day, duly recorded, and signed by 
 him as their clerk, is sufficient to take his appointment out of the 
 statute of frauds.^ 
 
 § 213. (152) The same presumptions which are applicable to 
 individuals are, in general, applicable to acts of corporations. 
 Thus, if a person acts notoriously as the officer of a corporation, 
 and is recognized by it as such officer, a regular appointment will 
 he presumed, and his acts will bind the corporation, although no 
 written proof is or can be adduced of his appointment.^ 
 
 Oath and Official Bond. 
 § 214. (153) All public officers are usually required to take 
 an oath of office, and those entrusted with money or property are 
 also generally required to give bond and sureties for the faithful 
 performance of their duties. In England it is said that an oath 
 of office cannot be required to be taken by a by-law when none 
 is required by the charter.^ But in this country the oath of office 
 
 uases of local improTements, may remove 
 them. People o. Mayor, etc. of New 
 York, 5 Barb. (N. Y.) 43, 1848. But in 
 Saath Carolina, see Caulfield v. State, 1 S. 
 C. 461, 1869, the exercise of the power 
 to appoint to office is an executive, not a 
 legislative act. Achley's Case, 4 Abb. 
 Pr. 35, 1856. Power to suspend officer. 
 Post, sec. 247, note. A provision that 
 the city council "may" by ordinance, 
 provide for the election, by the qualified 
 voters, of any of the officers named in 
 the act, held to leave it to the discretion 
 of the city council whether the office of 
 city attorney should be elective or not. 
 Ball V. Fagg, 67 Mo. 481. 
 
 1 Chase v. Lowell, 7 Gray (Mass.), 33, 
 1856. 
 
 ' Bank of United States v. Dandridge, 
 12 Wheat. (U. S.) 64, 70, where Mr. Jus- 
 tice Story cites many cases, establishing 
 the principle " that the acts of artificial 
 persons afiTord the same presumptions as 
 the acts of natural persons." The doc- 
 trine that not only the appointment, but 
 the authority of an agent of a corpora- 
 tion maybe implied from the adoption or 
 recognition of his acts (Angell & Ames 
 Corp. sec. 284) was applied in Killey v. 
 
 Forsee, 57 Mo. 890, 1874, to municipal 
 corporations, and it was held that the 
 failure of a deputy city engineer to file a 
 certificate of his appointment, as provided 
 by the charter, did not vitiate his acts. 
 
 s Bex V. Dean, etc., 1 Str. 539 ; Glover, 
 305; Willc. 133; Grant, 76. It is the 
 settled doctrine of the Supreme Court 
 that the United States, being a body pol- 
 itic, with a capacity to enter into con- 
 tracts, may, within the sphere and in the 
 execution of its appropriate powers, take 
 bonds and securities, which are not pro- 
 hibited by law, though such bonds and 
 securities may not have been prescribed 
 by any pre-existing legislative act. These, 
 though voluntary, — that is, not extorted 
 or coerced, — if taken for a lawful pur- 
 pose and upon a good consideration, are 
 valid. United States v. Tingey, 5 Pet. 
 (U. S ) 114, 128, 1831, approved; Same 
 V. Linn, 15 lb. 290, 1841 ; and see Dugan 
 t». United States, 3 Wheat. (U. S.) 172; 
 United States ». Bradley, 10 Pet. (U. S.) 
 343. Right of city to require bond of 
 indemnity from the owner, who proposes 
 to excavate sidewalk to make cellars, 
 vaults, or improvements. McCarthy ». 
 Chicago, 58 111. 38, 1870. A prospective 
 
§ 215.] 
 
 OATH AND OFFICIAL BOND. 
 
 241 
 
 is, in substance, only that the officer will support the constitution 
 and faithfully perform his official duties. And such an oath may, 
 doubtless, be required by ordinance, to be taken by every mnni- 
 cipal officer before entering upon his office. Statutes requiring 
 an oath of office and bond are usually directory in their nature ; 
 and unless the failure to take the oath or give the bond by the 
 time prescribed is expressly declared, ipso facto, to vacate the 
 office, the oath may be taken or the bond given afterwards, if no 
 vacancy has been declared.^ 
 
 § 215. (154) When the statute requires a prescribed oath of 
 office before any person elected " shall act therein," a person can- 
 appointment to public office, made by a 
 body which, as then constituted, is empow- 
 ered to fill the vacancy when it arises, is le- 
 gal in tlie absence of any express statutory 
 provision to the contrary, and vests title 
 to the office in the appointee. State v. 
 Van Busltirk, 40 N. J. L. 463. The power 
 of appointment to office, when executed 
 by the performance of the last act made 
 necessary in its execution, is not revoca- 
 ble without the consent of the appointee. 
 lb. 
 
 1 Smith v> Cronkhite, 8 Ind. 134 ; State 
 V. Findley, 10 Oliio, 51, 59, and cases 
 cited; State v. Porter (failure to give 
 bond by city marslial in time), 7 Ind. 204 ; 
 Sprawl V. Laurence, 33 Ala. 674 ; Bank 
 V. Dandridge, 12 Wheat. 64; United 
 States V. Le Baron, 19 How. 73 ; s. c. 4 
 Wall. 642 ; Marbury v. Madison, 1 Cranch, 
 187. Charter provisions that oaths of 
 
 office be taken and subscribed within ten 
 
 days is directory, and may be complied 
 
 with after that time. Kearney v. An- 
 drews, 2 Stockt. (N. J.) 70. In New York 
 
 it is Iield that a town collector elect, in 
 
 order to qualify for the office, is re- 
 quired by the constitution to take and 
 
 subscribe an oath of office, and until he 
 
 has thus qualified, the incumbent may 
 
 hold over. People v. McKinney, 52 N. Y. 
 
 874, 1873. But as no time is limited for 
 
 taking such oath it may be taken before 
 
 the office is forfeited by the neglect to 
 
 execute the required bond. lb. A town 
 
 may lawfully require a collector of taxes or 
 
 other officer to furnish sureties for the 
 
 faithful discharge of the duties of his 
 
 office. This power is incidental, and 
 
 need not be express. If the person 
 VOL. I. 16 
 
 chosen neglects, or is unable, to furnish 
 sureties, this amounts to a non-acceptance 
 of the trust, althougji he has taken the 
 oath of office. Morrell v. Sylvester, 1 
 Greenl. (Me.) 248. While it is the duty 
 of an officer to perfect his title to his 
 office by complying with the directions of 
 the law as to taking oath, depositing 
 bonds, etc., yet his failure to do so is his 
 own wrongful neglect, and is no defence 
 to his sureties in an action on his official 
 bond. State v. Toomer, 7 Rich. (South 
 Car.) Law, 216, 1854; State w. Findley, 10 
 Ohio, 51, 1840. 
 
 A city council, whose duty it is to de- 
 cide upon the sufficiency of the sureties 
 of a city officer, cannot refuse to do so or 
 postpone its decision because the title to 
 the office is elsewhere disputed ; and a 
 mandamus wiU lie to compel it to act upon; 
 the sufficiency of the securities ofCeredl 
 Commonwealth v. City Council of Pliila- 
 delphia, 7 Am. Law Keg. (N. S.) 362. 
 Certain persons signed a printed- form, 
 of a city treasurer's bond, with blanks for 
 inserting in the body the names of the- 
 sureties, amount of the penalty, etc., 
 which blanks were afterwards filled up 
 by the city officials without the knowledge 
 or consent of the signers. Held, that as 
 to them the bond was void, and that tiie 
 knowledge of the city clerk, the legal 
 custodian thereof, of such signing in 
 blank was notice to the city. Gage v. 
 Chicago, 2 III. App. 332. The stat- 
 utory requirement that the treasurer 
 file his bond within fifteen days after 
 his election is mandatory, and his fail- 
 ure to do so is a vacation of the office. 
 Gage V. Chicago, 2 111. App. 332. 
 
242 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. rx. 
 
 Bot justify as such officer unless he has taken an oath in substan- 
 tial, not necessarilj' literal, compliance with the law. Third 
 parties, however, acting in good faith with him as such officer, 
 are protected, notwithstanding his failure to take the requisite 
 oath.^ 
 
 § 216. (156) The principle is well settled, that official bonds are 
 valid if the condition complies substantially with the requirements 
 of the statute. The exact form prescribed is not essential unless 
 made so by the charter or act.^ As such bonds are intended to 
 secure the public the courts do not favor technical defences. Ac- 
 cordingly, actions have been sustained on bonds, not required 
 by law, when executed voluntarily, and with proper conditions, 
 to secure the performance of official duty.^ And when required 
 by law, bonds are good, as common law obligations, though they 
 do not conform to the statute, if they contain no condition con- 
 trary to law. In such case the obligor voluntarily agrees to 
 
 1 Olney v. Pearce, 1 Rh. Is. 292, 1850, 
 and authorities cited by Mr. Angell in 
 note; Riddle w. Bedford County, 7 Serg. 
 & Rawle (Pa.), 392 ; Neale «. Overseers, 6 
 Whart. (Pa.) 538. Wliere an officer, be- 
 fore acting, is required to qualify by 
 taking an oath of office, he has no legal 
 right, until he qualifies, to recover fees of 
 an incumbent received after the plain- 
 tiffs appointment or election, and before 
 he qualifies. Thompson v. Nicholson, 12 
 Rob. (La.) 326, 1845. See City v. Given, 
 60 Pa. St. 136 ; post, sec. 235. ' 
 
 If members of a common council, who 
 are required by the charter to be sworn 
 before they enter on the duties of their 
 office, are sworn before an officer not 
 authorized to administer the oath, they 
 are still officers de facto, and a tax levied 
 by them is not invalid, and will not be 
 set aside even in a direct proceeding. 
 State II. Perkins, 4 Zabr. (24 N. J. L ) 
 409, 1854. 
 
 An act of Congress provided that pay- 
 masters should, "previous lo entering upon 
 the duties of their office, give good and suffi- 
 cient bonds," etc. It was held that an ap- 
 pinntment as paymaster was complete 
 when made by the president and con- 
 firmed by the senate ; that the giving of 
 the bond was a mere ministerial act for 
 the security of the government, and not 
 
 a condition precedent to his authority to 
 act as paymaster ; and that a recital in 
 the bond of the appointment estops the 
 principal and sureties to deny the fact. 
 United States v. Bradley, 10 Pet. (U. S.) 
 343, 1836 ; and see, also. United States 
 Bank v. Dandridge, 12 Wheat. 64. Sure- 
 ties of municipal treasurer were estopped 
 to show that the election of the treasurer 
 was unauthorized because the time of the 
 election had not been fixed and the duties 
 of the office prescribed by ordinance. 
 Paducah v. Cully, 9 Bush (Ky.), 323, 
 1873 ; and see Herman on Estoppel, for 
 further illustrations of this subject. 
 
 2 Allegheny County v. Van Campen, 
 
 3 Wend. 49, 1829 ; People v. Holmes, 2 
 Wend. 281 ; 26. 616 ; Fellows v. Gilman, 
 
 4 Wend. 414 ; Lawton v. Erwin, 9 Wend. 
 233 ; Cornell v. Barnes, 1 Denio, 35. 
 
 Bond without seals, held valid as a 
 common law obligation. Board of Ed- 
 ucation V. Fonda, 77 N. Y. 350 ; 8. p. 
 U. S. ». Linn, 15 Pet. 290 ; U. S. v. Hodson, 
 10 Wall. 395 ; Morse w. Hodsden, 5 Mass. 
 318; Thomas v. White, 12 Mass. 369; 
 Bank v. Smith, 5 Allen, 415. 
 
 ' Postmaster General ». Rice, Gilpin, 
 554 ; Montville v. Haughton, 7 Conn. 
 543 ; Commonwealth v. Wolbert, 6 Bin- 
 ney, 292 ; Baby v. Baby, 8 Upper Can. 
 Q. B. 76. 
 
§216,] 
 
 OATH AND OFFICIAL BOND. 
 
 243 
 
 make the obligee named a trustee for the persons interested in 
 the due performance of the condition.^ Thus, an action may 
 be maintained on a bond given to the " selectmen " instead of to 
 the "town," by a town treasurer, conditioned for the faithful 
 performance of his duties.^ 
 
 ' Thomas v. White, 12 Mass. 369; 5 
 lb. 314 ; Kavanaugh v. Sanders, 8 Greenl. 
 (Me.) 442; Sweetzer v. Hiiy, 2 Gray, 49, 
 and cases there cited. 
 
 * Sweetzer v. Hay, 2 Gray, 49 ; Horn 
 V. Whittier, 6 N. H. 88. A bond given 
 by the treasurer of a county for tlie faith- 
 ful performance of his official duties, to 
 the board of supervisors of the same 
 county, is a good and valid l)ond, not- 
 withstanding there may be no statute re- 
 quiring one. Supervisors v. Coffinbury, 
 1 Mich. 356 ; People v. Johr, 22 Mich. 
 461, 1871. The fact that there is already 
 a valid official bond with solvent sureties 
 does not preclude a county court from 
 taking from a. delinquent county officer, 
 by way of security for liis delinquency, a 
 bond and mortgage on real estate. Tur- 
 ner V. Clark Co., 67 Mo. 248, 1878. 
 
 It is competent for the legislature, in 
 exacting official bonds and prescribing 
 their conditions, to require that they siiall 
 be conditioned for the faithful perform- 
 ance of all duties that may be imposed 
 by subsequent statutes during the offi- 
 cer's continuance in office; and this hav- 
 ing been done by a general statute, the 
 sureties on an official bond, conditioned 
 as required by the statute, are liable for 
 their principal's default in reference to 
 additional duties subsequently imposed, 
 unless the statute imposing such duties 
 shows an intention that they shall not be 
 so liable. Morrow v. Wood, 56 Ala. 1. 
 
 Municipal corporations may sue on 
 official bonds of public officers when in- 
 terested therein. State, ete. w. Norwood, 
 12 Md. 177, 1858. In an action on the 
 official bond of an officer appointed by a 
 municipal corporation, reciting the ap- 
 pointment of the principal as such officer, 
 neither he nor his sureties can set up the 
 invalidity of his appointment as a de- 
 fence to an action for moneys collected. 
 Hoboken v. Harrison, 1 Vroom (.30 N. J. 
 L.), 73; Seiple v. Elizabeth, 3 Dutch. (N. 
 J. ) 407. Sureties on official bond of de 
 
 facto municipal officer are liable for mon- 
 eys collected by him ; and this though he 
 was an officer which. In point of fact, the 
 corporation could not create. 1 Vroom 
 (30 N. J. L.), 73, supra. A surety in an 
 official bond of an officer whose term is 
 limited to a year, is not liable beyond the 
 year, though the officer continues by law 
 until a successor is provided. Dover v. 
 Tworably, 42 N. H. 59, 1860 ; Chelmsford 
 Co. .'. Demorest, 7 Gray (Mass.), 1, 1856; 
 Mayor v. Horn, 2 Barring. (Del.) 190, 
 1833; Begina v. Mcllae, 5 Upper Can. 
 P. R. 309. A change in a statute by which 
 the time for the annual settlements of 
 county collectors is fixed ^ month later, 
 and additional time is allowed in which 
 to pay after settlement, releases the sure- 
 ties on a collector's bond executed before 
 the change. The effect is to postpone 
 the state's right of action against the 
 collector. The rule that an extension of 
 time given the principal releases the 
 surety applies between the state and an 
 individual. State v. Roberts, 68 Mo. 234. 
 Sureties upon an official bond are not 
 liable for a defalcation of their principal, 
 occurring during a term preceding that 
 for which the bond was given. Paducah 
 V. Cully, 9 Bush (Ky.), 323,1872; Bis- 
 sell V. Saxton, 77 N. Y. 191 ; Meyers v. 
 U. S., 1 McLean, 493 ; Mahaska v. In- 
 galls, 16 Iowa, 81 ; Townsend v. Everett, 
 4 Ala. 607; U. S. «. Boyd, 5 How. 50; 
 Bruce v. U. S., 17 How. 447 ; Mclntyre 
 V. School Trustees, 3 III. App. 77 ; Arl- 
 ington V. Merrick, 2 Saund. 403 ; Over- 
 acre 0. Garrett, 5 Lans. 156; Rochester 
 V. Randall, 105 Mass. 295; Bramford v. 
 Isles, 3 Exchq. 380 ; Austin v. French, 7 
 Met. 126; Kingston Ins. Co. v. Decker, 
 33 Barb. 196 ; Dedliam Bank v. Chicker- 
 ing, 3 Pick. 385 ; Blake r. Buffalo, etc. 56 N. 
 Y 485; McClusky v. Cromwell, 11 N. Y. 
 598; Miller v. Stewart, 9 Wheat. 702. 
 As to a breach of an official bond, see 
 La Pointe v. O'Malley, 46 Wis. 35. 
 
 It is no objection to the bond that it 
 
244 MUNICIPAL COKPOKATIONS. [CH. IX. 
 
 Duration of Official Term. 
 
 § 217. (166) It was a settled rule of law respecting the old 
 corporations in England that the office of the mayor or other 
 head officer was annual, and absolutely expired at the end of the 
 year ; and that without an express clause in the charter, he could 
 not hold over until his successor was provided. The right, in 
 such case, to hold over did not exist by implication, and was not 
 an incident to the, office.^ In som^ charters, however, it was in 
 terms provided that the mayor or other chief officer, though 
 elected for a year, should hold until his successor was chosen.^ 
 When this right existed it was frequently abused, by neglecting 
 to hold an election on the charter day, by which means the officer 
 continued his term. It was this abuse that gave rise to the 
 Statute of Anne, which enacted " that no person in such annual 
 office for one whole year should be capable of being chosen into 
 the same office for the year immediately ensuing," and imposed a 
 fine upon every such officer who " should voluntarily and unlaw- 
 fully obstruct and prevent the choosing of another person to 
 succeed into such office at the time appointed for making another 
 choice."^ Under the Municipal Corporations Act the provision 
 is, that the mayor shall be elected each year, at the meeting fixed 
 for the ninth of November, and shall " continue in his office for 
 one whole year," * and by an amendment, until his successor shall 
 have accepted the office of mayor, and made and subscribed the 
 requisite oath ; ^ and subsequently, the Statute of Anne above 
 mentioned was repealed, as being no longer necessary.® 
 
 was executed before the appointment to v. Harrison, 18 Upper Can. Q. B. 603 ; 
 
 office was made. Essex v. Strong, 8 Up- Whitby v. Flint, 9 Upper Can. C. P. 
 
 per Can. L. J. 16 ; s. c. 21 Upper Can. Q. 449 ; Todd v. Perry et al., 20 Upper Can. 
 
 B. 149. The imposition of additional Q. B. 649. 
 
 taxes to those assessed attlie time of tak- ^ Rex v. Atkyns, 4 Mod. 12; Kex o. 
 
 ing the security and the increase of risk Earle, 1 Str. 627 ; Mayor of Durham's 
 
 thereby has been held not to violate a Case, 1 Sid. 33 ; Rex v. Thornton, 4 East, 
 
 bond given for the general performance 308 ; Foot v. Prowse, 1 Str. 625 ; 8. c. 3 
 
 of duties and payment of moneys. Bev- Bro. P. C. 169 ; Willc. 293 ; Glover, 173. 
 
 erely v. Bariow et al., 10 Upper Can. C. P. ^ lb. ; Rex v. Phillips, 1 Str. 394. 
 
 178 ; s. c. 7 Upper Can. L. J. 117. Nor ' 9 Anne, ch. xx, sec. 8. 
 
 is it a defence that the money received * 5 and 6 Will. IV. ch. Ixxvi. sec. 49 ; 
 
 by the treasurer was not demanded by ante, sec. 35, and notes ; Reg. o. McGowan, 
 
 the government, which was entitled 12 Ad.-& E. 869. 
 
 thereto. Essex ». Park, 11 Upper Can. ' 6 and 7 Will. IV. oh. cv. sec. 4. 
 
 C. J. 473. Nor are irregularities in the ' 3 and 4 Vict. ch. xlvli. 
 mode of appointment a defence. Whitby 
 
§ 219.] DURATION OF OFFICIAL TEEM. 245 
 
 § 218. (157) At common law, the office of an alderman, jurat, 
 capital burgess, or other member of a select body, is a franchise 
 for life, though by prescription or charter it may be limited to a 
 definite period, but the office was so much in the nature of a 
 freehold that there was an implied right to hold over, unless it 
 was otherwise provided.^ So with respect to recorder, town 
 clerk, and the like officers, the duration of the office depended 
 upon the particular charter, but presumptively it was not limited, 
 and their offices were so much in the nature of a freehold that if 
 they are " eligible for a year " and are constituted in general 
 terms, they do not expire with the year, but the possessors are 
 entitled to hold over until others are elected. But it is consid- 
 ered that if they are " eligible for a year only," the office ipso 
 facto determines on the expiration of a year.^ 
 
 § 219. (158) In this country, however, a public office is not 
 considered as being in the nature of the grant or contract, and 
 the officer, as against the public, has no freehold or property in 
 the office ; and it is almost an invariable provision of law that 
 all .officers shall be elected or appointed for a fixed and definite 
 period. To guard against lapses, sometimes unavoidable, the 
 provision is almost always made in terms that the officer shall hold 
 until his successor is elected and qualified. But even without such 
 a provision, the American courts have not adopted the strict rule 
 of the English corporations which disables the mayor or chief 
 officer from holding beyond the charter or election day, but rather 
 the analogy of the other corporate officers who hold over until 
 their successors are elected, unless the legislative intent to the 
 contrary be manifested;* Thus in Vermont it is held, — there 
 being no statute to the contrary, and such having been the prac- 
 tice, — that school officers elected at the annual meeting hold 
 over until others are elected at another annual meeting, whether 
 more or less than a year from the time of their election.* 
 
 1 Rexp.Doncaster, 2Ld.Eaym. 1564; land, 4 Coldw. (Tenn.) 96; South Bay, 
 Foot V. Prowse, supra. etc. Co. v. Gray, 30 Me. 547 ; Elmendorf 
 
 2 Willc. 296, pi. 766; Rex v. Durham, v. Mayor, etc. of New York, 25 Wend. 
 10 Mod. 147 ; Digliton's Case, 1 Vent. 82. (N. Y.) 693. And see cases infra. 
 
 ' People V. Bundle, 9 Johns. 147 ; Slee * Chandler v. Bradish, 23 "Vt. 416, 1851. 
 
 V. Bloom, 5 Johns. Ch. 366, 378; 2 Kent "The better opinion," says Shaw, C. 
 
 Com. 238 ; Kelsey v. Wright, 1 Root J., arguendo, in Overseers of Poor, etc. v. 
 
 (Conn.), 83; Smith w. Natchez Steamboat Sears, 22 Pick. 122, 180, "is, that town 
 
 Co., 1 How. (Hiss.) 479 ; Lynch v. liaS- officers annualli/ chosen hold their offices 
 
246 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 §220. (159) The law on this subject has been thus stated by 
 a learned American judge : " Where, in the charter or organic 
 law of a corporation, there is an express or implied restriction 
 upon the time of holding office, as that the officers shall be an- 
 nually elected on a particular day, and that they shall hold from 
 one charter (election) day till the next, or that they shall be 
 elected 'for the year ensuing. owZ?/,' in such case they cannot hold 
 over beyond the next election day or the end of the year."^ 
 " But where, by the constitution of *the corporation, the officers 
 are elected for a term, and until their successors are elected and 
 qualified, or where they are elected ' for the year ensuing,' and 
 the charter or organic law contains no restrictive clause, the offi- 
 cers may continue to hold and exercise their offices, after the ex- 
 piration of the year, until they are superseded by the election of 
 other persons in their places." ^ 
 
 until others are chosen and qualified in 
 their place." School District ». Ather- 
 ton, 12 Met. (Mass.) 105, 1846; Dow v. 
 Bullock, 13 Gray (Mass.), 136, 1859. So 
 in Illinois. People v. Fairhury, 51 111. 
 149, 1869. So in Connecticut, an o£Scer 
 elected for " the year ensuing " is, in the 
 absence of any other restrictive provision, 
 entitled to hold beyond the year, and 
 until he is superseded by the election of 
 another person in his place. McCall v. 
 Byram Manuf. Co., 6 Conn. 428, 1827, 
 where tlie authorities are reviewed and 
 commented on by Hmmer, C. J. ; 8. p. 
 Cong. Soc. etc. •;. Sperry, 10 Conn. 200 ; 
 State V. Fagan, 42 Conn. 32, 1875 ; Weir 
 V. Bush, 4 Litt. (Ky.) 433, where, by 
 statute, an officer holds for a given term, 
 and "until his successor is elected and 
 qualified." He continues in ofKce until 
 his successor is duly elected and qualified, 
 though this (from failure to elect, or from 
 other causes) be after the expiration of 
 the term. Stewart v. State, 4 Ind. 396, 
 1853 ; Tuley v. State, 1 lb. 500, 515 ; Law- 
 home, in re, 18 Gratt. ( Va.) 85. 
 
 1 Tuley V. State, 1 Ind. (Cart.) 500, 
 502, 1849, per Perkins, J.; King ». Mayor, 
 etc., 6 Vin. Abr. 296; Corporation of 
 Banbury, 10 Mod. 346 ; Hex v. Passmore, 
 3Term R. 199;6Petcrsd. Abr. 738. But 
 whether a provision merely that an offi- 
 cer shall " be annually elected on a par- 
 ticular day " is an implied restriction that 
 
 he shall not hold over, see the cases in 
 Vermont, Massachusetts, New York, Illinois, 
 and Connecticut, above rated. The weight 
 of authority in this country is the other 
 way. Where a city charter gave the 
 mayor power to hold until his successor 
 was elected and qualified, but denied this 
 power to the members of the city council 
 by providing that they should be elected 
 for a specified term, " and no longer," and 
 that their seats should be vacated at the 
 end of such term, they cannot hold over, 
 and their action, after the time thus fixed, 
 is void, and does not bind the corporation. 
 Louisville v. Higdon, 2 Met. (Ky.) 526, 
 1859. When the law is silent as to the 
 term, but requires an election to be held 
 every two years, an officer holds over 
 until his successor is provided. Cordiell 
 V. Frizzell, 1 Nev. 130. 
 
 2 Per Perkins, J., Tuley ». State, 1 Ind. 
 (Cart.) 500, 502, 1849 (action on official 
 bond against sureties). The Queen o. 
 Owens, 2 E. & E. 86 ; Frost ». Chester, 5 
 E. & B. 531 ; Foot v. Prowse, Str. 625 ; 
 Queen v. Durham, 10 Mod. 146 ; King v. 
 Lisle, Andrews, 163; McCall v. Manu- 
 facturing Co., 6 Conn. 428; 9 lb. 536; 
 10 Tb. 200; 17 lb. 588 ; Kelsey v. Wright, 
 1 Root, 83; Weir o. Bush, 4 Litt. (Ky.) 
 429 ; People v. Rnnkle, 9 Johns. (N. Y.) 
 147; Vernon Society v. Hills, 6 Cow. (N. 
 Y.) 23; Slee v. Bloom, 5 Johns. Ch. (N. 
 Y.) 866 ; Pender v. King, 6 Vin. Abr. 296 ; 
 
§ 222.] 
 
 VACANCIES IN MUNICIPAL OFFICES. 
 
 247 
 
 § 221. (160) As against the public, however, officers cannot 
 found a valid title or right to hold over upon their own neglect of 
 duty. Therefore, where the charter made it the express duty of 
 the trustees in office to give notice of, and themselves to hold, the 
 annual elections, it was held that if they omitted to discharge this 
 duty, though inadvertently, in consequence of which omission 
 there was and could be no election, that they were not entitled 
 to hold over, although by the charter it was provided that they 
 should continue in office until a new election should be made and 
 their successors should qualify.^ 
 
 Vacancies in Municipal Offices. 
 
 § 222. (161) At common law there must be a vacancy in the 
 office existing at the time of the election ; " for one cannot," says 
 Mr. Willcock, " be elected to a corporate office in reversion." ^ 
 And the same doctrine has been recognized in this country, and 
 a vacancy must exist before an election to fill it can be ordered,* 
 and an election to fill an anticipated vacancy is not valid unless 
 expressly authorized by the charter or statute.* Elections, how- 
 
 2 Kent Com. 295, note b ; Hicks v. Launce- 
 lot, 1 Rol. Abr. 513; Bank v. Petway, 3 
 Humph. (Tenn.) 522; Stewart u. State, 4 
 Ind. .896; Rex v. Poole, Cas. Temp. 
 Hardw. 23, and Phillips v. Wickham, 1 
 Paige Ch. 590, were considered to have a 
 contrary bearing. It was decided, in 
 Beck V. Hanscom, 9 Post, (29 N. H.) 213, 
 222, 1884, that where the charter or in- 
 corporating act made no provision for the 
 continuance of corporate officers in office 
 after the expiration of tlie term for which 
 they were elected, they could not hold 
 over until others should be chosen and 
 qualified; citing the opinion of Chancel- 
 lor Walworth, in Phillips v. Wickham, 1 
 Paige, 590 ; but admitting that the Peo- 
 ple V. Runkle, 9 Johns. (N. Y.) 147, and 
 Trustees v. Hills, 6 Cow. (N. Y.) 23, held a 
 diflerent view. In People o. Tieman, 8 
 Abb. Pr. 359; s. c. 30 Barb. (N. Y.) 193, 
 the Supreme Court, at special term, de- 
 nied that the officer himself could hold 
 over unless authorized by statute, though 
 to protect the public his acts are sus- 
 tained. Cocke V. Halsey, 16 Pet. 71. 
 One holding a municipal office, under a 
 valid appointment, is not precluded froiu 
 
 continuing to act thereunder until his suc- 
 cessor is elected and qualified, by the 
 mere fact that he has taken an oath and 
 filed an official bond under an illegal 
 election. Forristal v. People, 3 111. App. 
 470. 
 
 1 People V. Bartlett, 6 Wend. (N. Y.) 
 422, 1831. In such a case, being trustees 
 de facto, their acts would be good. And 
 their title would also be good except when 
 called in question by quo warranto, lb. ; 
 Lynch v. JLaffland, 4 Coldw. (Tenn.) 96, 
 1867. Validity of acts of officers de facto. 
 People V. Stevens, 5 Hill (N. Y.), 616, per 
 Bronson, J. ; People v. Runkle, 9 Johns. 
 (N. Y.) 147; Trustees v. Hill, 7 Cow. (N. 
 Y.) 23; Plymouth v. Painter, 17 Conn. 
 585 ; Smith v. State, 19 lb. 493 ; People 
 V. Bartlett, 6 Wend. (N. Y.) 422; State v. 
 Jacobs, 17 Ohio, 143 ; Hinton v. Lindsay, 
 20 Ga. 746 ; post, sees. 276, 892. 
 
 2 Willc. Corp. 207, pi. 526 ; Hob. 150 ; 
 Skin. 45 ; Glover, 216. ' 
 
 s Lindsey v. Luckett, 20 Tex. 516 ; 
 BIddle V. Willard, 10 Ind. 63, 1857 ; Peo- 
 ple V. Wetherell, 14 Mich. 48. 
 
 * Biddle v. Willard, supra. In this case 
 it was said, that a resignation to take 
 
248 
 
 MUNICIPAL COIiPORATIONS. 
 
 [CH. IX. 
 
 ever, in advance of the expiration of the regular term of the 
 incumbent of an office, are always provided for and held, but 
 such cases are not elections to vacancies within the meaning of 
 the rule under consideration. 
 
 Refusal to serve in Office. 
 
 § 223. (162) It is an established common law principle that 
 since a municipal corporation is entitled to the official service of 
 its eligible members, it 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 office to which they have been 
 duly elected.^ The ground of this doctrine is clearlj' set forth by 
 Lord Holt in Vanacker's Case, and although all of his reasoning 
 is not applicable to our American municipal corporations, still it 
 is believed that under the usual general welfare clause or under 
 their incidental power to pass reasonable and necessary by-laws, 
 
 effect at a fixed future time may, if no 
 new rights have attached, be withdrawn, 
 even after acceptance, by the consent of 
 the party accepting ; and under the laws 
 of that state it was held that such a res- 
 ignation did not create a vacancy which 
 would authorize an election at a period 
 prior to the taking effect of the resigna- 
 tion. 
 
 There is no technical or peculiar 
 meaning to the word " vacant," as used 
 in the constitution. It means empty, un- 
 occupied, as applied to an office without 
 an incumbent. There is no basis for the 
 distinction urged that it applies only to 
 offices vacated by death, resignation, or 
 otherwise. An existing office, without an 
 incumbent, is vacant, whether it be a 
 new or an old one. Per Stuart, J., Stock- 
 ing V. State (vacancy in new judicial cir- 
 cuit), 7 Ind. 326, 1855 ; followed, CoUins 
 ». State, 8 lb. 344, 1856. , 
 
 1 City of London v. Vanacker, 1 Ld. 
 Eaym. 496; s. c. Carth. 482; s. c. 12 
 Mod. 272 ; 1 Salk. 142 ; Rex v. Bower, 2 
 Dowl. & E. 761, 842; s. o. 1 Barn. & 
 Cress. 587; Vintners' Co. v. Passey, 1 
 Burr. 239; Willc.230; Glover, 181; Grant, 
 211. If of a public and magisterial na- 
 ture, the penalty for refusal may be im- 
 posed, though the person be also liable to 
 be punished by indictment, or, in the dis- 
 
 cretion of the court, by criminal informa- 
 tion. London v. Vanacker, 1 Ld. Baym. 
 499 ; Eex v. Grosvenor, 1 Wils. 18 ; s. c. 
 2 Str. 1193; Rex v. Hungerford, 11 Mod. 
 132, 142 ; Rex v. Woodrow, 2 Term R. 
 732; Rex u. Whitwell, 6 Term R. 86; 
 Rex V. Leyland, 8 M. & S. 184. The 
 Municipal Corporations Act (5and 6Will. 
 IV. ch. Ixxvi. sec. 51) requires every 
 qualified person elected to the office of 
 alderman, councillor, auditor, or assessor, 
 or mayor, to accept the office or pay a 
 fine to the borough fund. The refusal to 
 take the requisite oaths is a refusal of the 
 office. Exon v. Starre, 2 Show. 159. As 
 there is » common law duty to serve in 
 an office to which a person has been duly 
 elected, this duty may, if the office be 
 sufficiently important, be enforced by 
 mandamus, and the payment of the fine is 
 not in lieu of service unless the statute 
 or by-law release him from service by 
 treating the penalty as compensation. 
 Rex V. Bower, 1 Barn. & Cress. 685 ; 8. c. 
 2 Dowl. & R. 842 ; Rex w. Leyland, 8 
 Maule & Sel. 184; Rex w. Woodrow, 2 
 Term R. 731; post, sec. 830. By the 
 above mentioned provision of the Muni- 
 cipal Corporations Act, the fine is in 
 lieu of the acceptance of the office. 
 Grant on Corp. 222. 
 
§ 224] RESIGNATION OF MUNICIPAL OFFICES. 249 
 
 they would be authorized, where such an ordinance did not con- 
 travene the charter or statute, or public legislative policy respect- 
 ing offices, to impose a reasonable fine for refusing corporate 
 offices. In this country, however, offices have not usually been 
 regarded as burdens to be avoided, but rather as distinctions to 
 be coveted, and hence there has been little occasion to call into 
 exercise the power of the courts, or to test the authority of the 
 corporations to enforce the undertaking of their offices. If, 
 under the charter or statute, an officer has the right to resign 
 or lay down his office at pleasure, the authority to impose a 
 fine for refusing to serve would probably not exist.^ 
 
 Resignation of Municipal Offices. 
 
 § 224. (163) An office must he resigned either (first) ex- 
 pressly, or (second) by implication.^ If the charter prescribes 
 the mode in which the resignation is to be made, that mode 
 should of course be complied, with.^ Acceptance by the 
 corporation is, at common law, necessary to a consum- 
 mation of the resignation, and until acceptance by proper 
 authority, the tender or offer to resign is revocable.* The right 
 to accept a resignation is a power incidental to every cor- 
 poration.* It is also a common law principle that the I'ight to 
 accept the resignation of an officer is incidental to the power 
 
 1 See Willc. 133, pi. 308 ; Grant, 221, < Rex v. Lane, 2 Ld. Eaym. 1304 ; Eex 
 222 ; Gates v. Delaware County, 12 Iowa, v. Ripon, supra ; Hazard's Case, 2 Rol. 11 ; 
 405; United Stales v. Wright, 1 McLean, Jenning's Case, 12 Mod. 402; Rex v. Pat- 
 609 ; State, etc. v. Ferguson, 31 N. J. L. teson, 4 B. & Ad. 9 ; 1 Nev. & Mann. 612. 
 (2 Vroom), 107. The acceptance may be by entry in books, 
 
 2 Regents of University v. Williams, by vote, or resolution, or by treating the 
 9 Gill & J. (Md.) 365, 422, 1838; Willc. place as vacant and electing another to 
 132, 238 ; Grant, 268, 246, note e ; lb. 221, fill it, or ordering an election if to be filled 
 222. by a popular vote. Van Orsdall v. Haz- 
 
 » Willc. 239 ; Rex v. Hughes, 5 Barn, ard, 3 HilI(N. Y.), 243 ; State u. Ancker, 
 
 & Cress. 886, 896; Rex v. Mayor of 2 Rich. (South Car.) 245. One elected to 
 
 Bipon, 1 Ld. Raym. 563 ; Hex v. Payne, an ofiice cannot resign it before he has 
 
 2 Chitty, 366 ; Keg. v. Morton, 4 Q. B. qualified and become an incumbent of it. 
 
 146. The statute may provide that the Miller v. Supervisors, etc., 25 Cal. 93; 
 
 officer shall continue until his successor is Willc. 286. 
 
 elected and qualified, and in such case he ' Rex v. Tidderley, 1 Sid. 14 ; Hazard's 
 
 will not cease to be an officer merely by Case, supra. The " common council " 
 
 resigning so as to be relieved from the may regulate resignations by by-laws, and 
 
 discharge of his duties as such officer, it may accept resignations, as it repre- 
 
 Badger v. U. S. {mandamus) 93 U. S. sents the corporation at large. Rawlinson 
 
 699, 1876. See, furtlier, on this poiut, (5tli ed.) 317, note ; Stanjland w. Hopkins, 
 
 post, chapter on mandamus. 9 M, & W. 178 ; Willo. 240, pi. 616. 
 
250 
 
 MUNICIPAL COKPOEATIONS. 
 
 [CH. IX. 
 
 of appointing him.^ If no particular mode is prescribed, 
 neither the. resignation nor acceptance thereof need be in writing, 
 or in any form of words.^ 
 
 § 225. (164) An office may be impliedly resigned or vacated 
 by the incumbent being elected to and accepting an incom- 
 patible office. The rule, says Parke, J., in a leading English case on 
 this subject, that where two offices are incompatible they cannot 
 be held together, is founded on the<|f)lainest principles of public 
 poUcy, and has obtained from very early times.* The principle 
 applies not only where the second office is the superior and more 
 important one, but also where it is not.* The rule has been gen- 
 erally stated in broad and unqualified terms, that the acceptance 
 of the incompatible office, by whomsoever the appointment or 
 election might be made, absolutely determined the original office, 
 leaving no shadow of title in the possessor, whose successor may 
 be'at once elected or appointed, neither quo warranto nor amotion 
 being necessaiy.* 
 
 ' Per Parke, J., Rex v. Patteson, 4 
 Barn. & Adol. 9, 1832 ; 1 Nev. & Mann. 
 612 ; Regents of the University v. Wil- 
 liams, 9 Gill & Johns. (Md.) 365, 1838 ; 1 
 Kyd, 369-375 ; State v. Butz, 9 S. C. 156. 
 By the common law, when two o£Sce8 
 or public trusts are incompatible with 
 each other, a person holding the one is 
 not disqualified to be appointed or elected 
 to the other, but his acceptance of the 
 second office is in law an implied resig- 
 nation of the first, whenever it may be 
 resigned by the mere act of the incum- 
 bent without the assent or concurrence 
 of a superior authority. Per Gray, C. J. 
 in Commonwealth u. Hawkes, 123 Mass. 
 525, 1878. The rule that one vacates an 
 office by accepting another office incom- 
 patible therewith, — applied to a solicitor's 
 acceptance of the office of representative 
 in Congress. State v. Butz, 9 S. C. 156; 
 post, sec. 427, note. 
 
 * Milward v. Thatcher, 2 Term R. 87, 
 which settled this point conclusively; 
 Eex V. Trelawney, 3 Burr. 1615 ; Gabriel 
 V. Clark, Cro. Car. 138 ; Rex v. Godwin, 
 Doug. 383, note 22; WiUc. 240, pi. 617 ; 
 Glover, 139. 
 
 ' Gabriel v. Clark, supra ; Verrior v. 
 Sandwich, 1 Sid. 305 ; Milward v. Thatch- 
 er, supra; Glover, 329; Willc. 240, pi. 617. 
 
 1 Van Orsdall v. Hazard, 3 Hill (N. Y.), 
 243; asserting, arguendo, the incidental 
 power of municipal corporations, as such, 
 to accept resignations, and approving the 
 opinion of Mr. Willcock (Munic. Corp. 
 240), who observes, respecting the cases 
 on this subject : " I presume that a right 
 to accept a resignation passes incidentally 
 with a right to elect." See, also, Rex v. 
 Tidderley, 1 Sid. 14, per Hale, Ch. B. ; 
 Jenning's Case, 12 Mod. 402 ; Taylor's 
 Case, Poph. 133. 
 
 ^ Same authorities ; and see, also. Rex 
 V. Ripon, 1 Ld. Raym. 563 ; s. c. 2 Salk. 
 483 ; Regina v. Lane, 1 Ld. Raym. 1304 ; 
 Jenning's Case, 12 Mod. 402 ; Regina 
 V. Gloucester, Holt R. 450 ; Van Orsdall v. 
 Hazard, 3 Hill (N. Y.), 243, 248 ; State v. 
 Allen, 21 Ind. 516, 1863; People v. Police 
 Board, 26 N. Y. 316 ; McCunn's Case, 19 
 lb. 188, distinguished. Statutory limita- 
 tion on the right to resign before successor 
 is chosen and qualified. Badger v. U. S., 
 93 V. S., 599, 1876 ; People v. Common 
 Council, 77 N. Y. 503, approving text. 
 A resignation made to the officer who 
 makes the appointment vacates the office 
 as soon as it is received; there is no 
 acceptance necessary. Gilbert v. Luce, 
 11 Barb. (N. Y.) 91 ; Olmsted ». Denuis, 
 77 N. Y. 379. 
 
§ 227.] RESIGNATION OF MUNICIPAL OFFICES. 251 
 
 § 226. (165) The doctrine just stated is undoubtedly true 
 where the acceptance of the second office is made by or with the 
 privity of that authority which has the power to accept the sur- 
 render of the first or to amove from it ; but " such acceptance 
 does not operate as an absolute avoidance in cases where a per- 
 son cannot divest himself of an office by his own mere act, but re- 
 quires the concurrence of another authority to his resignation or 
 amotion, unless that authority is privy and consenting to the sec- 
 ond appointment."^ If one holding an office in a corporation be 
 by that corporation elected to an incompatible office, this of course, 
 is a consent on the part of the corporation that the first office be 
 vacated ; and if the second office be accepted, the first is at once 
 and ipso facto determined. But, until acceptance, the former 
 office is not vacated.^ 
 
 § 227. (166) The rule under consideration is not limited to 
 corporate offices, but extends, both in its principle and application, 
 to all public offices. Thus, if a judge of the Common Pleas 
 accepts an appointment to the king's bench, the first office 
 is vacated, since it is the duty of the one to correct the errors of 
 the other.3 
 
 Whether offices are incompatible depends upon the charter or 
 statute, and the nature of the duties to be performed.* The same 
 
 1 Parke, J., Rex v. Patteson, supra. It Oliver, 4 Abb. Pr. R. 121 ; People v. Por- 
 
 has been held in this country, however, ter, 6 Cal. 26. Denying right under stat- 
 
 that an incumbent of a public office may ute to withdraw resignation after deliver- 
 
 lay it down at his pleasure, and that the ing it. State v. Hauss (sheriff), 43 Ind. 
 
 officer to whom the resignation, by law, 105, 1873 ; 8. c. 13 Am. Rep. 314. 
 
 is to be made cannot forbid it or refuse ^ lb. Milwardo. Thatcher, supra; Rex 
 
 it; and that when received by such offi- v. Pateman, supra; Willc. 243, pi. 623; 
 
 cer it operates to vacate the office re- Arkwright v. Cantrell, 7 Ad. & E. 565. 
 
 signed. Gates v. Delaware County, 12 Acceptance necessary; see, also. State 
 
 Iowa, 405; United States v. Wright, 1 w. Ferguson, 31 N.J. (2 Vroom) Law, 107, 
 
 McLean, 509. The delivery by a city 1864 ; see Lewis v. Oliver, 4 Abb. Pr. 121. 
 
 engineer, whose office was elective, of a Acceptance of an incompatible office, 
 
 written resignation to the mayor and even under a void election, puts an end 
 
 council, takes effect without any accept- to the first office ; and the officer, on being 
 
 anee. State v. Mayor of Lincoln, 4 Neb. ousted from the second office, cannot be 
 
 260, 1877. Lake, C. J., says : " In ab- restored to the first. Rex v. Hughes, 5 
 
 sence of statute, there is no rule requiring B. & C. 886 ; Rex v. Bond, 6 D. & R. 333. 
 
 acceptance of resignation to make it ef- ' Glover on Corp. 139. 
 
 feetive. The refusal of the municipal * Mllward v. Thatcher, supra, per BuU 
 
 authorities to accept it will not compel lev, 3. ; People v. Carrique, 2 Hill (N. Y.), 
 
 the officer to retain the office against his 93, and cases cited ; Staniland v. Hopkins, 
 
 will." lb. Compare State v. Ferguson, 2 9 M. & W. 178. 
 
 Vroom (31 N. J. L.) 107, 129 ; Lewis v. Incompatibility in offices exists where 
 
252 MUNICIPAL COKPOKATIONS. [CH. IX. 
 
 man cannot be judge and minister in the same court, and hence 
 the offices are not compatible.^ Where the recorder is an adviser 
 to the mayor, the two offices cannot be held together.^ So a rep- 
 resentative in Congress holds a public office, within the meaning of 
 a charter which prohibits an alderman from holding " any other 
 public office " ; and upon his election to and acceptance of " such 
 public office " during his term as alderman, his office as alderman 
 immediately becomes vacant.^ 
 
 The proper proceeding is by mandamus * to compel the com- 
 mon council to order a special election to fill such vacancy, and 
 not by quo warranto to try the title to such office, such represent- 
 ative being neither a de facto nor de jure officer. 
 
 § 228. (167) An office may be vacated hy abandonment.^ A 
 voluntary enlistment by a civil officer in the military service of the 
 United States for three years, or during the war, vacates the civil 
 office, being a constructive resignation by abandonment.® So 
 where residence within the corporation is necessary in order to be 
 eligible to hold an office, permanent removal from the municipal- 
 ity may undoubtedly be taken as evincing an intention to resign, 
 and as an implied resignation.^ 
 
 ■the nature and duties of the two offices son may, therefore, be appointed to both 
 are such as to render it improper, from offices, tliere being no prohibition in the 
 considerations of public policy, for one act. Howland v. Luce, 16 Johns. (N. Y.) 
 incumbent to retain both. It does not 135, 1819. The offices of councilman and 
 necessarily arise when the incumbent city marshal, are incompatible. State v. 
 places himself, for the time being, in a, Hoyt, 2 Oregon, 246. See generally as 
 position where it is impossible for him to incompatible state and federal offices, 
 to discharge the duties of both offices. Respublica v. Dallas, 3 Yeates (Fa.), 316; 
 Bryan v. Cattell, 15 Iowa, 538, 1864, per s. c. 4 Dall. 229 ; Commonwealth v. Binns, 
 Wright, C.J. ; and accordingly that case 17 Serg. & Rawle (Pa.), 219; Common- 
 held that the office of district attorney wealth v. Ford, 5 Barr (Pa.), 67. 
 and of captain in the volunteer service of ' People v. Common Council, 77 N. Y. 
 the United States were not legally incom- 503; People v. Carrique, 2 Hill(N. Y.), 
 patible. Two offices are incompatible 93; People v. Nostrand, 46 N. Y. 381; 
 where the holder cannot, in every in- People v. Green, 58 N. Y. 304. 
 stance, discharge the duties of each. * Lamb v. Lynd, 44 Pa. 336 ; State v. 
 Per Bailey, J., Rex v. Tizzard, 17 Eng. Rahway, 33 N. J. L. 110; Fish v. Weath- 
 C. L. 193.* erwax, 2 Johns. Cas. 217. 
 
 1 Poph. 28, 29; 1 Sid. 305; 2 Keb. 6 ^jUc. 238; State t;. Allen, 21 Ind. 
 93 ; Glover, 139. 516, 1863. 
 
 2 Willc. 241, pi. 518 ; Rex v. Marshall, « State «. Allen, 21 Ind. 516, 1863. 
 cited, 2 B. & A. 341. Clerk of a school But see Bryan v. Cattell, 15 Iowa, 537. 
 district and collector of the district were ' Willc. 238; ante, sec. 195; Curry ». 
 held not incompatible, and the same per- Stewart, 8 Bash- (Ky.), 560, 1871. 
 
§ 230.] COMPENSATION OF MUNICIPAL OFFICERS. 253 
 
 Compensation of Municipal Officers. 
 
 § 229. (168) We have had occasion to discuss the complete 
 supremacy of the legislature over public corporations, limited only 
 by express constitutional restraints.^ Its authority over public 
 offices, which are created or authorized solely for the public con- 
 venience, is equally gi'eat,^ and may be conferred upon munici- 
 pal corporations with respect to municipal offices. The legislature, 
 in the absence of constitutional limitation, may create and abolish 
 offices, add to or lessen their duties, abridge or extend the term 
 of office, and increase, diminish, or regulate the compensation of 
 officers at its pleasure.^ 
 
 § 280. (169) There is no such implied obligation on the part 
 of municipal corporations, and no such relation between them 
 and officers which they are required by law to elect, as will 
 oblige them to make compensation to such officers, unless the right 
 to it is expressly given by law, ordinance, or by contract.* Offi- 
 cers of a municipal corporation are deemed to have accepted their 
 office with knowledge of, and with reference to, the provisions of 
 the charter or incorporating statute relating to the services which 
 they may be called upon to render, and the compensation pro- 
 vided therefor. Aside from these, or some proper by-law, there 
 is no implied assumpsit on the part of the corporation with re- 
 
 1 Ante, eh. iv. and the officer not removed, he is entitled 
 
 2 Ante, eh. iv. ; State o. Douglass, 26 to salary. Hoke v. Henderson, 4 Dev. 
 Wis. 428, 1870 ; a. c. 7 Am. Rep. 87, and (N. C.) 1; Cotton v. Ellis, 8 Jones (N. 
 note. As to special constitutional restric- C.) Law, 545. 
 
 tions, ante, sees. 58, 60. * Sikes v. Hatfield, 13 Gray (Mass.), 
 
 « Ante, ch. iv. ; and see also Conner v. 847, 1859 ; Barton v. New Orleans, 16 La. 
 
 Mayor, etc. of New York, 1 Seld. 5 N. Y. An. 317 ; Gamier ». St. Louis, 37 Mo. 
 
 285, 1851 ; affirming ». c. 2 Sandf. S. C. 554, 1866. It is advisable that salaries 
 
 B. 355; Warner w. People, 7 Hill (N. Y.), should be fixed by ordinance, and not 
 
 81; 2 Denio, 272; People v. Morrell, 11 voted as a matter of grace and favor. 
 
 Wend. (N. Y.) 563, 1839; Phillips v. Smith w. Commonwealth, 41 Pa. St. 335 ; 
 
 Mayor, etc. of New York, 1 Hilt. (N. Y.) Devoy v. Tifew York, 39 Barb. (N. Y.) 
 
 (Com. PI.) 483; Bryan w.Cattell, 15 Iowa, 169; Bladen «. Philadelphia, 60 Pa. St. 
 
 &SS,55S, per Wriyk, C.J. ; Coffin w. State, 464. See opinion of Thompson, C. J., 
 
 7 Ind. 167, 1855 ; People v. Mahaney, 13 Philadelphia v. Given, Tb . 136. Munici- 
 
 Mich. 481; Turpen v. County Commrs., pal corporations are not liable for services 
 
 7 Ind. 172 ; Oregon v. Pyle, 1 Oregon, performed by an officer under an uncon- 
 
 149 ; Bird v. Wasco Co., 3 Oregon, 282, stitutional statute. Meagher v. County, 
 
 1871 ; Cowdin v. Hufl", 10 Ind. 83 ; Cooley, 5 Ne v. 244, 1869 ; post, sec. 910 ; City of 
 
 Const. Lim. 276 ; Butler v. Pennsylvania, Central v. Sears, 2 Col. 588, 1875. The 
 
 10 How. 402 ; Smith ». New York, 37 N. first sentence of this section of the text 
 
 Y. 518, 1868 ; Swann v. Buck, 40 Miss, cited and applied in Bosworth v. New Or- 
 
 268, 1866. While the office is continued, leans, 26 La. An. 494, 495, 1874. 
 
254 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. IX. 
 
 spect to the services of its officers. In the absence of express 
 contract, these regulate the right of recovery, and the amount.^ 
 If the charter or by-laws provide for a peculiar mode of compen- 
 sation,' as, for example, to a city surveyor, for superintending 
 grading of streets, by an assessment upon the property owners, 
 the city is not liable before it collects the money, if it makes the 
 requisite assessments, and is proceeding with proper diligence to 
 enforce them.^ 
 
 § 231. (170) A municipal corporation may, unless restrained 
 by charter, abolish an office created by ordinance ; and may also, 
 unless the employment is in the nature of a contract, reduce or 
 otherwise regulate the salaries and fees of its officers, accprding 
 to its view of expediency and right. Although an officer may be 
 elected or appointed' for a fixed period, yet where he is not 
 bound, and cannot be compelled to serve for the whole time, 
 such election or appointment cannot be considered a contract to 
 hire for a stipulated term. Ordinances fixing salaries are not 
 in the nature of contracts with officers.^ 
 
 1 Locke V. Central City, 4 Col. 65. A 
 public officer is not entitled to payment 
 for duties imposed upon him by statute 
 in the absence of an express provision 
 for such payment. Jones v. Carmarthen, 
 8 M. & W. 805 ; Askin v. London, 1 Up- 
 per Can. Q. B. 292 ; Pringle and McDon- 
 ald, in re, 10 Upper Can. Q. B. 254 ; Regina 
 V. Cumberlege, 36 L. T. N. S. 700. 
 
 2 Baker v. City of Utica, 19 N. Y. 326 ; 
 People V. Supervisors,! Hill (N. Y.),362; 
 
 - Cumming v. Mayor, etc. of Brooklyn, 11 
 Paige, 596; Jersey City v. Quaife, 2 
 Dutch. (N. J.) 63; Andrews v. United 
 States, 2 Story C. C. 203 ; United States 
 V. Brovpn, 9 How. 487 ; Barton v. New 
 Orleans, 16 La. An. 317 ; McClung v. St. 
 Paul, 14 Minn. 420, 1869; Smith v. Com- 
 monwealth, 41 Pa. St. 335. " It is very 
 plain to us that a town officer, as such, 
 has no legal claim against the town to re- 
 cover paj' for services rendered, unless by 
 an express vote of the town, or an uniform 
 usage to pay that particular officer from 
 year to year, for his services. And in the 
 latter case, it would be very questionable 
 whether a recovery at law could be had, 
 if it had all along been left to the town to 
 make such compensation as they should 
 deem reasonable, after the services had 
 
 been rendered. . . . The same principle 
 has always been recognized in this state 
 in regard to all officers. If no law of the 
 state fixed their fees or pay, their services 
 must be gratuitous." Per Redfield, J., 
 Boyden v. Brookline, 8 Vt. 284, 1836. 
 But the decision (in Boyden v. Brookline, 
 8 Vt. 284) does not extend strictly be- 
 yond official services ; and when a town 
 agent, acting for the town, or the town it- 
 self, employs an attorney at law to prose- 
 cute or defend suits against the town, the 
 latter is liable for the services. And the 
 rule is the same if the " town agent," 
 being an attorney, renders for the town 
 professional services, in suits which the 
 proper authorities of the town directed to 
 to be instituted. Langdon v. Castleton, 
 30 Vt. 285, 1858; City of Central v. 
 Sears, 2 Col. 588 ; Locke v. Central City, 
 4 Ci)l. 65. A provision that a city marshal 
 shall have the same duties, responsibili- 
 ties, and fees as sheriffs does not im- 
 port that he may recover from the county 
 in which the city is located for services 
 rendered in the administration of the 
 criminal law. Christ v. Polk County, 48 
 Iowa, 302. 
 
 ' Commonwealth v. Bacon, 6 Serg. & 
 Rawle (Pa.), 322, 1820; followed, Baker, 
 
§ 232.] 
 
 COMPENSATION OF MUNICIPAL OFFICERS. 
 
 255 
 
 § 232. (171) But where the services to be performed are pro- 
 fessional or private, rather than public or official, an employment 
 under an ordinance for a fixed time, at a fixed sum for the period, 
 has been held to be a contract, and not subject to be impaired by 
 the corporation. Thus, the appointment or election by a city 
 council, for a fixed and definite period, of a city officer — for ex- 
 ample, a citj' engineer, for one year, at the rate of one thousand 
 dollars per year — if accepted by him, constitutes, in the opinion 
 of the Supreme Court of Massachusetts, a contract between him 
 and the city ; and the city, in such a case, has no authority, unless 
 expressly conferred, to abolish or shorten the term of office, so as 
 to deprive the officer, without his consent, of the right to com- 
 
 V. Pittsburgh, 4 Pa. St. 49, 1846 (abolish- 
 ing annual salary of collector of tolls) ; 
 also, approved, University c. Walden, 15 
 Ala. 655, 1849 ; but distinguished, Carr v. 
 St. Louis, 9 Mo. 190 ; Coniw. v. Mann, 5 
 W. & S. (Pa.) 418; Smith v. County, 2 
 Par. (Pa.) 293; Madison «. Kelso, 32 Ind. 
 79; Warner ». People, 2 Denio (N. Y.), 
 272 ; Conner v. Mayor, etc. of New York, 
 1 Seld. (5 N. Y.) 285, 296; Augusta o. 
 Sweeny, 44 Ga. 463, 1871. Under special 
 circumstances, — Held, that the salary of a 
 city officer could be diminished by tlie 
 council. Cox v. Burlington, 43 Iowa, 612, 
 1876. A legislature may authorize the 
 reduction of the salary of a city officer 
 during his term. A statute or city ordi- 
 nance fixing the amount of such salary is 
 not in the nature of a contract. Love v. 
 Jersey City, 40 N. J. L. 456. Such officer, 
 by continuing in office and receiving war- 
 rants for monthly payments of his salary 
 during the term, waives all objections to 
 the reduction. lb. In an action against 
 a city treasurer, on his official bond, for 
 moneys received by him, he cannot 
 charge commissions for the whole term 
 at the rate allowed by law at his acces- 
 sion to office, when his compensation has 
 been changed to a lower rate subse- 
 quently. Iowa City v. Foster, 10 Iowa, 
 189. Where a police judge agreed to 
 accept the compensation fixed by the city 
 council in payment of his services, if the 
 council would by a change of ordinance 
 provide compensation for the clerk of the 
 court, — ndd, that the agreement was 
 based on a valid consideration ; but that 
 
 in cases where judgment was rendered 
 against the city before such change, no 
 fees could be recovered. Crane v. Des 
 Moines, 47 Iowa.. 105; supra, sec. 212. In 
 Commonwealth v. Bacon, supra, it was 
 held that an ordinance wliich reduced the 
 salary of the mayor after the commence- 
 ment of his term was valid. The court 
 said, " Tills cannot be considered in the 
 nature of a hiring for a year, because it 
 was not obligatory on the mayor to serve 
 out the year." Though an ordinance may 
 fix term and compensation of officer, the 
 office mq.y be abolished, if its abolition be 
 not forbidden, or salary reduced. There 
 is no contract between corporation and 
 officer that the service shall continue, or 
 the salary not be changed. Waldraven 
 V. Memphis, 4 Coldw. (Tenn.) 431, 1867; 
 Hobokcn v. Gear, 3 Dutch. (N. J.) 265, 
 1859. The power to abolish municipal 
 offices was reaffirmed, citing text, in 
 Butcher v. Camden (fire marshal of city), 
 29 N. J. Eq. (2 Stew.) 478, 1878. General 
 power to a corporation to fix the compen- 
 sation of its officers does not authorize it 
 to take away the fees of an officer, which 
 are specifically fixed by the same charter. 
 Carr v. St. Louis, 9 Mo. 190, 1845. The 
 legislature may provide that the salary of 
 an officer may be fixed by one board, e.g., 
 a common council, though it is payable 
 by another, e. g., a county, or board of 
 supervisors; and in that case, the latter 
 have no authority to change it when once 
 fixed. People a. Auditors of Wayne, 13 
 Mich. 233 ; People v. Wayne Co. Audi- 
 tors, 41 Mich. 4. 
 
256 MUNICIPAL COEPOEATIONS. [CH. IX. 
 
 pensation for the full period, unless for misbehavior or unfitness 
 to discharge the duties of the place.^ 
 
 § 233. (172) 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 duties, even though the 
 salary may be a very inadequate^ remuneration for the services. 
 Nor does it alter the case that by* subsequent statutes or ordi- 
 nances his duties witliin the scope of the charter powers pertain- 
 ing to the office are increased and not his salar3^ 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 properly 
 be attached to an office to lay the foundation for extra compensa- 
 tion, would soon introduce intolerable mischief. The rule, too, 
 should be very rigidly enforced. The statutes of the legislature 
 and the ordinances of our municipal corporations seldom prescribe 
 with much detail and particularity the duties annexed to public 
 offices; and it requires but little ingenuity to run nice distinc- 
 tions between what duties may, and what may not, be considered 
 strictly official ; and if these distinctions are much favored by 
 courts of justice, it may lead to great abuse.^ 
 
 ^ Chase ». Lowell, 7 Gray (Mass.), 83, that it shall be liable for any compensa- 
 
 1856 ; and see Caverley w. Lowell, 1 Allen tion earned under the resolution previous 
 
 (Mass.), 289, 1861, as to ordinance con- to its repeal or modification. Hiestandv. 
 
 stituting ii contract with city attorney. New Orleans, 14 La. An. .330, 1859. The 
 
 These cases, if really distinguishable court did not regard the resolution as 
 
 from the others, should not, it is believed, creating a contract, or, if so, it was one of 
 
 be extended, but the principle limited to mandate, revocable at the will of the 
 
 instances where the services are not es- principal. lb. 
 
 sentially official in their nature, and ^ Per Potts, J., in Court of Errors and 
 
 where the officer or other party is bound Appeals, Evans v. Trenton, 4 Zabr. (24 
 
 to serve for the fixed and definite period. N. J. L.) 766, 1853. The text cited and 
 
 Appointment of police officer for a year, approved in Decatur v. Vermillion, 77 111. 
 
 held not to create a contract, and he was 315, 1875. See, ako, Andrews «.■. United 
 
 removable, without cause, within that States, 2 Story C. C. 202 ; l*almer v. Tie 
 
 period. Chicago v. Edwards, 58 111. 252, Mayor, etc. of New York, 2 Sandford (N. 
 
 1871. Y. ) , 318 ; Bussier B. Pray, 7 Serg. & Eawle 
 
 A resolution of the council empower- (Pa.), 447; Angell & Ames on Corp. sec. 
 
 ing an individual to collect the taxes due 317 ; Gilmore v. Lewis, 12 Ohio, 281 ; 
 
 the city, at a given rate per cent on the Detroit v. Redfield, 19 Mich. 376, 1869. 
 
 amount collected for his compensation, A salaried officer cannot sue the city 
 
 may be repealed or modified at any time for a balance of salary due unless 
 
 by the corporation, on the sole condition there has been some default on the part 
 
§ 234] 
 
 COMPENSATION OF MUNICIPAL OFFICERS. 
 
 257 
 
 § 234. (173) Not only has an officer, under such circumstances, 
 no legal claim for extra compensation, but a promise to pay him 
 an extra fee or sum beyond that fixed by law is not binding, though 
 he renders services and exercises a degree of diligence greater 
 than could legally have been required of him.' 
 
 of the city in making the necessary ap- 
 propriations. Waterman v. New York, 
 7 Daly (N. Y.), 489. 
 
 A salaried officer of a public corpora- 
 tion has no claim for compensation extra 
 his salary, on the ground that the duties 
 of his office have heen increased, or new 
 duties added since the salary was fixed. 
 People V. Supervisors, 1 Hill (N. Y.), 
 362; Wendell v. Brooklyn, 29 Barb. (N. 
 Y.) 204; Palmer v. Mayor, etc. of New 
 York, 2 Sandf. (N. Y.) 318; Covington 
 V. Mayberry, 9 Bush (Ky.), 304; An- 
 drews 0. Pratt (compensation for sale of 
 county's railroad stock), 44 Cal. 309, 
 1872. Special instances, where a claim 
 for compensation, in the absence of ex- 
 press provision, has been sustained, where 
 the law has required a public officer to 
 perform a duty, attended with trouble 
 and expense clearly outside of his regu- 
 lar official duties, see People v. Super- 
 visors, 12 Wend. (N. Y.) 257; Bright v. 
 Supervisors, 18 Johns. (N. Y.) 242; Mal- 
 lory V. Supervisors, 2 Cowen (N. Y.), 631 ; 
 lb. 533 ; Detroit v. Eedfleld, 19 Midi. 376, 
 1869. It a county attorney goes beyond 
 the limits of his county at the instance 
 and with the consent of the county board, 
 he may recover reasonable compensation 
 in addition to his salary. Huffman v. 
 Greenwood Co., 23 Kan. 281 ; Butler i>. 
 Neosho Co., 15 Kan. 178; Leavenworth 
 Co. V. Brewer, 9 Kan. 307. This subject 
 is discussed in White v. Polk Co., 17 
 Iowa, 413 ; post, sec. 479. 
 
 Wliere salary is fixed by ordinance, it 
 cannot be clianged by a committee or in- 
 dividual members of the corporation ; 
 nor will their promise to pay extra com- 
 pensation for the duties of tlie office be 
 binding on the corporation. But for ser- 
 vices performed by request, not part of 
 the duties of his office, and which could 
 as appropriately have been performed by 
 any other person, such officer may, in 
 proper cases, recover a just remuneration. 
 Evans v. Trent(,>n, 4 Zabr. (24 N. J. L.) 
 
 VOL. I. 17 
 
 764, 1853; s. p. Detroit v. Redfield, 19 
 Mich. 876, 1869; Converse v. United 
 States, 21 How. 463. For services re- 
 quired by ordinances, the city attorney is 
 entitled to the compensation fixed by or- 
 dinance, and no other; and the mayor, by 
 virtue of his duty to see that the "ordi- 
 nances are duly enforced," cannot bind 
 the corporation to pay more than the 
 fixed salary or compensation, and this 
 duty does not authorize that officer to 
 employ assistant or independent counsel 
 in any case, at the expense of the corpo- 
 ration. Carroll v. St. Louis, 12 Mo. 44, 
 1849; Memphis v. Brown, 20 Wall. 289, 
 321, 1873; post, sec. 479. Further, as to 
 liability of city to attorneys, see the chap- 
 ter on Contracts. 
 
 1 Heslep t;. Sacramento, 2 Cal. 580 
 ($10,000 voted to mayor for meritorious 
 services, held void) ; Hatch a. Mann, 15 
 Wend. (N. Y.) 44; reversing 8. c. 9 Ih. 
 262; approved. Palmer i'. Mayor, etc. 
 of New York, 2 Sandf. (N. Y.) 218; Bar- 
 tho V. Salter, Latch, 54; W. Jones, 65; 
 8. o. Lane v. Sewell, 1 Chltty, 175; lb. 
 295; Morris v. Burdett, 1 Camp. 218; 3 
 lb. 374; Callaghan v. Flallett, 1 Caines 
 (N. Y.), 104; 8. c. Col. & C. Cas. 179; 
 Preston v. Bacon, 4 Conn. 471 ; Shattuck 
 ». Woods, 1 Pick. (Mass.) 175; Bussier 
 u. Pray, 7 Serg. & Rawle (Pa.), 447 ; Car- 
 roll V. Tyler, 2 Har. & Gill, 54 ; Smith v. 
 Smith, 1 Bailey (South Car.), 70; Deholt 
 V. Cincinnati, 7 Ohio St. 237 ; Pilie v. New 
 Orleans, 19 La. An. 273. Payments re- 
 ceived by one, knowing the agent to be 
 unauthorized to make them, may be re- 
 covered by the principal as money wrong- 
 fully had and received. The people are 
 not bound by acts of a township commit- 
 tee, ultr(f vires, sanctioning unlawful pay- 
 ments to a collector. Demarest v. New 
 Barbadoes, 40 N. J. L. 604. The princi- 
 ple in the text operates to deprive a pub- 
 lic officer, or an officer of a municipal cor- 
 poration, of a claimfor a reward offered for 
 a service which is embraced in his official 
 
258 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 Liability of Corporation to the Officer. 
 
 § 235. (174) Where an officer of a municipal corporation, 
 elected by the people for a specified term, is improperly removed 
 by the city council, he may sue the corporation for his salary and 
 perquisites for the time intervening between his removal and the 
 expiration of his term.^ It is a defence to the corporation that 
 the officer was legally removed ; but if he was illegally removed, 
 it is no answer to the action that the corporation, in making the 
 removal, acted judicially, and therefore is not liable for the error 
 it committed.^ 
 
 or legal duties. Gilmore v. Lewis, 12 Ohio, 
 281, where a constable who arrested a thief 
 was held not entitled to a reward offered 
 by the defendant ; 8. p. Pool i/. Boston, 
 5 Cush. (Mass.) 219 ; the text cited and 
 approved. Decatur b. Vermillion, 77 111. 
 315, 1875. See ante, ch. vi. sec. 139. 
 
 1 Stadler v. Detroit, 13 Mich. 346, 
 1865; Shaw v. Mayor, etc., 19 Ga. 468, 
 1866. The court, in considering the rule 
 of damages in such a case, hold that the 
 officer cannot recover of the corporation 
 counsel fees for defending himself against 
 the charges preferred against him, but 
 may recover such " damages as necessa- 
 rily resulted from his amotion from office, 
 viz., his salary and perquisites." 19 Ga. 
 468, supra. But the corporation, it is 
 suggested, may recoup the same as indi- 
 viduals who improperly dismiss servants 
 employed for a determinate period. 2 
 Greenl. £v. sec. 261a. But see United 
 States V. Addison, 6 Wall. 291; Hoke v. 
 Henderson, 4 Dev. (N. C.) 1. 
 
 « Shaw V. Mayor, etc., 19 Ga. 468, 
 1856; Shaw v. Mayor, etc., 21 Ga. 280; 
 sees. c. Mayor, etc. 0. Shaw's Adminis- 
 trator, 25 Ga. 590. In the case last cited 
 it was decided that if the removal of a 
 city officer be for a, specified cause, not 
 warranting the removal, and the officer 
 sue the corporation for his salary, as a 
 defence to such action it may aver and 
 prove other matters, good in law, to jus- 
 tify such removal. In thus holding, the 
 court say : " If his term of office had not 
 expired when this suit was instituted, and 
 he had moved for a mandamus to restore 
 him, instead of bringing an action for his 
 salary, the court would not have inter- 
 
 fered, if good cause for his removal could 
 have been shown, although he may have 
 been removed without notice. Rex v. 
 Mayor, etc., 2 Cowp. 523; The King 
 V. The Mayor, etc., 2 Terra R. 182" — 
 per McDonald, J. ; 25 Ga. 590, 592. See 
 Hoboken v. Gear, 3 Dutch. (N. J.) 265. 
 An incumbent was appointed by the al- 
 dermen and removed by the mayor, who 
 nominated a successor; the incumbent's 
 salary did not cease until his successor 
 was confirmed. White v. Mayor, etc. of 
 New York, 4 E. D. Smith, 563, 1855. A 
 person is not entitled to the salary of a 
 public office unless he both obtains and 
 exercises the office. Farrell v. Bridge- 
 port, 45 Conn. 191. Thus, a city treas- 
 urer, being indicted for forgery, the may- 
 or and council elected another in his 
 stead for the balance of his term. Upon 
 his acquittal, — Held, that he could not re- 
 cover the salary for such balance of his 
 terra. If the prosecution was malicious, 
 he could recover in tort from the wrong- 
 doer. Brunswick v. Fahm, 60 Ga. 109. 
 So a policeman who has been found guilty 
 of immoral conduct and discharged from 
 his office by a board of police commis- 
 sioners having jurisdiction, cannot re- 
 cover from the city his salary for the 
 remainder of his term. It makes no dif- 
 ferencre that the commissioners may have 
 erred in their judgment on the evidence, 
 no appeal having been taken. Queen v. 
 Atlanta, 59 Ga. 318. 
 
 Declaring an office and the prospective 
 fees of the officer not to be property, and 
 that the right to fees grows out of services 
 performed, it was decided by the Court of 
 Appeals that a municipal officer who had 
 
§236.] 
 
 LIABILITY OF OFFICER. 
 
 259 
 
 Liability of the Officer to the Corporation and to Others. 
 
 § 236. (175) Public officers, elected pursuant to statute by a 
 municipal corporation, are not the servants or agents of the cor- 
 
 been kept out of his office, and bad not 
 performed its duties, could not maintain 
 an action against the city to recover the 
 amount of fees accruing from the office. 
 Smith V. New York, 37 N. Y. 518, 1868; 
 Saline Co. o. Anderson, 20 Kan. 298 ; Do- 
 lan V. Mayor, 68 N. Y. 279; Hadley r. 
 Mayor, 33 N. Y. 603, 607, per Denio, C. 
 J. ; Benoit v. Wayne County, 20 Mich. 
 176, Coeley, J., dissenting. It has, how- 
 eTer, several times been decided in Cali- 
 fornia that the saLary annexed to a public 
 office is incident to the title to the office, 
 and not to its occupancy and exercise, 
 and that the right to compensation is not 
 affected by the fact that an usurper, offi- 
 cer de facto, has discharged the duties of 
 the office. Doraey v. Smith, 28 Cal. 21 ; 
 Stratton v. Oulton, Ih. 44 ; Carroll v. Sie- 
 benthaler, 37 lb. 193, 1869; approved, 
 Meagher v. County, 5 Nev. 244, 1869 ; 
 where a city physician, who was duly 
 elected, but kept out of his office by the 
 prior incumbent who drew the salary for 
 some months, was permitted to collect 
 his back salary from the city. Memphis 
 c^. Woodward, 12 Heisk. 499. See Peo- 
 ple V. Miller, 24 Mieh. 468, 1872 ; Benoit 
 V. Wayne County, supra ; Philadelphia v. 
 Given, 60 Pa. St. 136, per Thompson, C. J. 
 Bight of municipal officer to retain his 
 salary in his own hands, denied, where it 
 was his duty to pay all sums received into 
 the treasury. New Orleans v. Finnerty, 27 
 La. An. 681, 1875 ; s. c. 21 Am. Rep. 
 569, referred to infra, note. 
 
 The legal incumbent of a municipal 
 office rendering service is entitled to com- 
 pensation until he has actual notice of 
 his removal. Jarvis v. Mayor, etc. of 
 New York, 2 N. Y. Leg. Obs. 396. As to 
 notice : Equity will not ordinarily enjoin 
 the payment of the salary to the incum- 
 bent pending a contest ; the bill must 
 show grounds for equitable relief. Cot- 
 ton V. Price, 50 Ala. 424, 1874 ; Bruner 
 ». Bryan (against interloper), 50 Ala. 623, 
 1874; Field u. Commonwealth, 32 Pa. St. 
 478, 1849 ; K^,mshay, in re, 83 Eng. C. 
 L. 174, 1852 ; Hennen, in re, 13 Pet. 230 ; 
 Queen v. Governors, etc., 8 Ad. & El. 
 
 682; Page v. Hardin, 8 B. Mon. (Ky.) 
 648; Bowerbank v. Morris, Wall. C. C. 
 R. 118. In The City v. Given, 60 Pa. St. 
 136, the plaintiff acted as city commis- 
 sioner for some months, when it was de- 
 cided that he had not been duly elected, 
 and in a suit brought fur his salary, it was 
 held that he could not recover, because 
 lie had not qualified by giving security. 
 In an action by the rightful officer on a 
 supersedeas liond given in a quo warranto 
 proceeding by an intruder, the measure 
 of damages is the full amount of the 
 salary (where the office has a fixed salary) 
 received by the intruder pending the 
 operation of the supersedeas. United States 
 V. Addison, 6 Wall. 291. See People v. 
 Miller, 24 Mich. 468, 1872. 
 
 "It is a grave question," says Sey- 
 mour, C. J., " whether a merely de facto 
 officer, even when he actually performs 
 the whole duties of the office, can enforce 
 the payment of the salary. The authori- 
 ties seem to be tliat he cannot. State v. 
 Carrol, 38 Conn. 471 ; Riddle v. Bedford 
 County, 7 Serg. & Rawle (Pa.),386; Bent- 
 ly V. Phelps, 27 Barb. (N. Y.)524; People 
 V. Tiernan, 30 Barb. (N. Y.), 193. How- 
 ever this may be, it is clear, we think, that 
 the salary of an officer is not due to parties 
 who are neither officers de juro nor de 
 facto." Sammis v. King. 40 Conn. 298, 1873 
 
 Respecting liability of an intruder to the 
 officer dejure for salary and fees received 
 and when an action will lie for money 
 had and received. Glascock v. Lyons, 20 
 Ind. 1; Douglas u. State, 31 Ind. 479; 
 Dorsey v. Smythe, 28 Cal. 21 ; Stratton c. 
 Oulton, /ft. 44; City v. Given, 60 Pa. St. 
 136; Allen ». McKean, 1 Suran. 276; 
 State V. Sherwood, 42 Mo. 179; Hunter n. 
 Chandler, '45 Mo. 452; s. c. 10 Am. Law 
 Reg. (N. S.) 440, and note; Boyters. Dods- 
 worth, 6 Term R. 681 ; Sadler v. Evans, 
 4 Burr. 1984 ; People v. Miller, 24 Mich. 
 458. The right of set off in respect of his 
 salary was denied to a municipal officer 
 where it was the duty of the officer to do- 
 posit all moneys received in the treasury, 
 and where it was provided his salary was 
 to be paid m a specific manner. The 
 
260 MUNICIPAL COEPOKATIONS. [CH. IX, 
 
 poration in such a sense as will enable the corporation, in the ab- ' 
 sence of a statute giving the remedy, to recover damages against 
 sueh officers for negligence in the discharge of their official duty. 
 If the corporation can recover at all in such an action, it can only 
 be for want of fidelity and integrity, not for honest mistakes.^ 
 To protect the public, however, officers are usually required to 
 give bonds, in which case they are, of course liable as we have 
 seen, according to the conditions thereof. By charter, the power 
 to appoint policemen was conferred on a board of police, com- 
 posed of the mayor and recorders, and this board was authorized 
 to discharge policemen, for cause, and to " decide on all police 
 matters pertaining to appointments, dismissals, etc., finally and 
 without appeal." In an action for wages, brought against the city 
 by a policeman, who claimed that he had been appointed for a 
 year, and dismissed at the end of a month, without good cause, 
 the Supreme Court decided that the board having dismissed the 
 plaintiff for what it deemed sufficient cause, its decision was final, 
 and the sufficiency of the cause of dismissal was not inquirable 
 into in the action.^ 
 
 § 237. (176) In this country the officers of municipal corpora- 
 tions are, in many respects, pM^Kc officers, being charged with duties 
 which concern both the corporation and the public at large. The 
 duties and liabilities of such officers to the corporation fall within 
 the scope of this treatise, and have been considered. But their 
 
 decisions of the Supreme Court of the in good faith^ the corporation for which 
 United States, allowing equitable set off he acts is bound, and cannot defeat his 
 in such cases, were distinguished. New recovery for the price of materials fur- 
 Orleans V. Finnerty, 27 La. An. 681, 1875 ; nished by evidence to show that the re- 
 8. o. 21 Am. Hep. 569. If the city is lia- pairs were not, in fact, necessary. But it 
 ble at once to suit by the officer, why would be otherwise if fraud or corruption 
 deny the right of set off? were shown. Palmer v. Carroll, 4 Post 
 1 Parish in Sherburne v. Fiske, 8 Cush. (24 N. H.) 314, 1851. See, also, People v. 
 (Mass.) 264, 266, 1851, opinion by Dewey, Lewis, 7 Johns. (N. Y.) 73; Seaman u. 
 3. ; cites White v. Philipson, 10 Met. Patten, 2 Caines (N. Y.), 312. 
 (Mass.) 108; Trafton ». Alfred, 8 Shepl. Personal liabiliti/ of municipal councillors 
 (15 Me.) 258 ; Kendall ». Stokes, 3 How. to the corporation for misappropriation 
 87 ; Commonwealth v. Genther, 17 Serg. of its funds ; see municipality of East 
 & Bawle (Pa.), 135; Wilson v. Mayor, Nissouri v. Horseman, 16 Upper Can. 
 etc. of New York, 1 Denio (N. Y.), 595 ; Q. B. 688. Of treasurer for paying money 
 Hancock v. Hazzard, 12 Cush. (Mass ) 112 ; on an illegal order or resolution. Daniels 
 Minor v. Bank, 1 Pet. (U. S.) 46, 69. v. Burford, 10 Upper Can. Q. B. 481. 
 Where a surveyor of highways has, by ^ Nolan v. New Orleans, 10 La. An. 
 law, a discretion as to the kind of repairs, 106, 1855. 
 and exercises his best judgment and acts 
 
§ 237.] 
 
 LIABILITY OF OFFICER. 
 
 261 
 
 individual rights and their liability to others, upon contracts and 
 for torts, are not, strictly speaking, embraced in the plan of the 
 work. It has, however, been thought that a brief reference to 
 some of the more important rules and adjudications on this subject 
 was desirable, and this has accordingly been made in the note.' 
 
 (N. Y.), 125; Manchester v. Herrington, 
 10 N. Y. 164; Upton v. Starr, 3 Ind. 638. 
 
 Evidence. — Where the authority of 
 an officer of a public corporation comes 
 incidentally in question in an action in 
 which he is not a party, it is sufficient to 
 sliow tliat he was an acting officer, and 
 the regularity of his appointment or elec- 
 tion cannot be made a question. Proof 
 that he is an acting officer is prima facie 
 evidence of his election or appointment, 
 as well as of his having duly qualified. 
 But if he relies alone on proof of a due 
 election or appointment, such election or 
 appointment must be legally established. 
 Pierce v. Richardson, 37 N. H. 306, 1858; 
 Tucker i^. Aiken, 7 N. H. 1 13 ; Johnson 
 V. Wilson, 2 N. H. 202 ; Baker v. Shep- 
 hard, 4 Post. (24 N. H.)212, 1851, and 
 cases cited; Bean v. Thompson, 19 N. H. 
 290; Blake v. Sturdevant, 12 N. H. 573; 
 Burgess v. Pue, 2 Gill (Md.),254. An 
 officer, even when justifying, may prima 
 facie establish his official character by 
 proof of general reputation, and that he 
 acted as such officer. Johnson v. Stead- 
 man, 8 Ohio, 94; followed, Eldred o, 
 Seaton, 5 lb. 215 ; Berryman o. Wise, 4 
 Term R. 366 ; Potter v. Luther, 6 Johns. 
 431; Wilcoxf. Smith, 6 Wend. 233; Peo- 
 ple V. McKinney, 10 Mich. 54. But it is 
 not enough to show that the officer wag 
 acting officially in the particular instance 
 in controversy in the case upon trial, and 
 in which his authority is questioned. 
 Hall i;. Manchester, 39 N. H. 295, 1859. 
 " The mere acting in a public capacity is 
 sufficient prima facie proof of proper 
 appointment ; but it is only prima facte 
 presumption and is capable of being re- 
 butted." Per Lord Coleridge, C. J-, in Re- 
 gina V. Roberts, 36 Law Times Reps. 690, 
 1878; 8. c. 6 Am. Law Rep. 414. An 
 acting officer is estopped to dispute the 
 validity of his own appointment and elec- 
 tion. State V. Sellers, 7 Rich. Law, 368 ; 
 State V. Mayberry, 3 Strob. 144. 
 
 Acts and Declarations of officers, 
 when evidence for or against the corpo- 
 
 1 Suits. — Public officers have, in 
 general, a power to sue commensurate with 
 their duties. If officers of a corporate 
 body, suit should be brought in the name 
 of the corporation, unless the statute direct 
 otherwise. Stock u. State, 6 Ind. 113; 
 State V. Rush, 7 lb. 221 ; Supervisors v. 
 Stimpson, 4 Hill (N. Y.), 136, and cases 
 cited; Todd v. Birdsall,! Cow. (N. Y.) 
 260, and cases cited in note ; Jansen v. 
 Ostrander, 1 Cow. (N. Y.) 670; Cornell 
 V. Guilford, 1 Denio (N. Y.), 510; com- 
 pare Commissioners v. Perry, 5 Ohio, 
 57; Barney v. Bush, 9 Ala. 345; "Van 
 Keuren ■/. Johnson, 3 Denio, 182 ; Te- 
 cumseh o. Phillips, 5 Neb. 305, 1877 ; 
 Regents of State University v. McConnell, 
 6 Neb. 423, 1877. But it has been held 
 that a public officer cannot, without the 
 aid of a statute, maintain a suit in his 
 own name, although he may have taken 
 a note or contract to himself individually, 
 if the consideration for such a note or con- 
 tract be a liability to the state. The 
 ground of this rule is public policy to dis- 
 courage public officers from transacting 
 in their own name the business of the 
 public. Hunter v. Field, 20 Ohio, 340, 
 1851; Irish y. Webster, 5 Greenl. (Me.) 
 171; Gilmore «. Pope, 5 Mass. 491. If 
 the obligation is taken to the officer as 
 agent, or in his official capacity, the action 
 is properly brought in the name of the 
 government beneficially interested. Du- 
 gan V. United States, 3 Wheat. 172; s. p. 
 United States v. Boice, 2 McLean, 352 ; 
 United States v. Barker, 1 Paine C. Ct. 
 152; 2 Parsons on Notes and Bills, 451, 
 and other cases cited. An action by a 
 public officer does not abate by the expi- 
 ration of his term of office. The suit 
 may be continued in his name until its 
 termination, or, by the practice in many 
 of the states, his successor may be sub- 
 stituted. Kellar v. Savage, 20 Me. 199, 
 1841; Todd i;. Birdsall, 1 Cow. (N. Y.) 
 260 ; Haynes v. Covington, 13 Sm. & Mar. 
 (21 Miss.) 408; Grant v. Fancher, 5 Cow. 
 (N. Y.) 309; Colgrove o. Breed, 2 Denio 
 
262 
 
 MUNICIPAL CORPOEATIONS. 
 
 [GH. IX. 
 
 Amotion and Disfranchisement, 
 
 § 238. (177) The elementary works treat of Amotion and 
 Disfranchisement together : indeed, formerly, the important dis- 
 
 ration. Mitchell ». Rockland, 41 Me. 363 ; 
 Jordan v. School District, 38 lb. 1864; 
 Morrell v. Dixfleld, 30 lb. 157 ; County v. 
 Simmons, 5 Gilm. (10 111.) 516 ; Railroad 
 Co. V. Ingles, 15 B. Mon. (Ky.) 637; 
 (ilidden v. Unity, 33 N. H. 577 ; Toll Co. 
 V. Betsworth, 30 Conn. 380; Barnes u. 
 Pennell, 2 H. of L. Cas. 497. See chap- 
 ter on Corporate Records and Documents, 
 poa. The acts of the officers of municipal 
 corporations in the line of their official 
 duty, and within the scope of their au- 
 thority, are binding upon the body they 
 represent ; and declarations and admissions 
 accompanying such acts as part of the 
 res gestae, calculated to explain and unfold 
 their character, and not narrative of 
 past transactions, are competent evidence 
 against the corporation. To render such 
 declarations and admissions evidence, 
 they must accompany acts, which acts 
 must be of a nature to bind the corporate 
 body. Glidden v. Unity, 33 N. H. 571, 
 1856 ; Perkins v. Railroad Co., 44 N. H. 
 223 ; Grimes v. Keene, 52 N. H. 330 ; 
 Harpswell v. Phippsburg, 29 Me. 313; 
 Coffin u. Plymouth, 49 N. H. 173 ;' Hop- 
 kinton v. Springfield, 12 N.H. 328; Pitts- 
 field V. Barnstead, 12 N. H. 828; Canaan 
 V. Hanover, 49 N. H. 415 ; Gray v. Rol- 
 lingsford, 58 N. H. 1879; s. c. 21 Alb. 
 L. Jour. 16. 
 
 Notice. — Where the officers or agents 
 of a public corporation have no powers 
 or duties with respect to a given matter, 
 their individual knowledge, or the indi- 
 vidual knowledge of the inhabitants or 
 voters, do not bind or affect the corpora- 
 tion. Harrington v. School District, 30 
 Vt. 155, 1858 ; Angell & Ames Corp. sec. 
 239 ; Hayden v. Turnpike Co., 10 Mass. 
 397. The mayor is chief executive offi- 
 cer of the city, and notice to him of a 
 nuisance is sufficient, when it would not 
 be to the clerk, who is only a recording 
 officer, not authorized to act upon the 
 notice. Nichols v. Boston, 98 Mass. 39, 
 1867 ; ante, sees. 208, 209. 
 
 IwDrOTMENT OP PuBLIC AND COBFO- 
 
 KATB Officers. — "A public officer," it 
 is declared in North Carolina, " entrusted 
 
 with definite powers to be exercised for 
 the benefit of the community, who wick- 
 edly abuses or fraudulently exceeds them, 
 is punishable by indictment." State v. 
 Glasgow, North Car. Conf. R. 186, 187 
 (indictment of secretary of state) ; State 
 ».*Slustices, etc., 4 Hawks (North Car.), 
 194 (when county authorities indictable 
 for non-repair of jail) ; see Paris v. Peo- 
 ple, 27 111. 74; State v. Commrs. of Fay- 
 etteville (non-repair of streets), 2 North 
 Car. Law, 617; lb. 633; 2 Murph. 371. 
 But see as to street commissioner, Graf- 
 fins V. Commonwealth, 3 Pa. (Penn. & 
 W.) 502 ; State v. Commrs.,Walk. (Miss.) 
 368. Indictment of municipal officers for 
 violation of charter. People v. Wood, 4 
 Park. Cr. R. 144 ; Hammar v. Covington, 
 8 Met. (Ky.) 494; State v. Shelbyville, 4 
 Sneed (Tenn), 176; State v. Shields, 8 
 Blackf. (Ind.) 151; Lathrop v. State, 6 
 Blackf. (Ind.) 502; State u. BurUngton, 
 36 Vt. 521. Requisites of indictment for 
 non-performance of official duty. Waters 
 V. People, 13 Mich. 446 ; State v. Mayor, 
 11 Humph. (Tenn.) 217; Slater. Commrs., 
 2 Dev. (N. C.) 345; 3 Chitty Crim. Law, 
 586, 606, for precedents of indictments 
 against corporations. Criminal informa- 
 tion against municipal officers. Wille. 
 Corp. 815-318 ; Rex v. Watson, 2 Term 
 R. 204 ; lb. 198. Indictment against mu- 
 nicipal corporations. See chapter on Reme- 
 dies against Illegal Corporate Acts, post, 
 sees. 931, 933. 
 
 Liability for Moneys secbived. — 
 A public or municipal officer, who is re- 
 quired to account for and pay over money 
 that comes into his hands, is liable, 
 though it be stolen without his fault, un- 
 less relieved from this responsibility by 
 statute. Halbert v. State, -22 Ind. 125, 
 1864; Muzzy k. Shattuck, 1 Denio, 233; 
 State V. Township, 28 Ind. 86 ; Hancock 
 0. Hayard, 12 Cush. (Mass.) 112 ; Clay Co. 
 V. Simonsen, 1 Dak. Ter. 403 ; Egremont v. 
 Benjamin, 125 Mass. 15 ; State v. Lew- 
 enthall, 55 Miss. 589 ; State v. Powell, 67 
 Mo. 395; State v. Gates, 67 Mo. 139; 
 Inglis V. State, 61 Ind. 212 ; United States 
 v. Prescott, 3 How. (U. S.) 578; Com- 
 
§ 238.] 
 
 AMOTION AND DISFRANCHISEMENT. 
 
 263 
 
 tinction between the two was not observed. Amotion relates 
 alone to officers ; disfranchisement, to corporators or members of 
 
 monwealth v. Coneley, 4 Pa. St. 372; 
 State v. Harper, 6 Oliio St. 707. And a 
 direction to a public officer (e. g. a county 
 treasurer) how and where to keep the 
 money (e. g. in a safe provided by the 
 county), if made by a board or authority 
 having no legal control or power over the 
 matter, will not be a defence to such offi- 
 cer if the money is stolen from the safe. 
 Halbert v. State, supra. It is no defence 
 to a tax collector to recover moneys re- 
 ceived by him, that he received the 
 money on account of taxes which the leg- 
 islature had no constitutional power to 
 impose. Waters v. States, 1 Gill (Md.), 
 302, 1843; Tliompson v. Stickney, 6 Ala. 
 579 ; Evans v. Trenton, 4 Zabr. (24 N. J. 
 L.) 764. Treasurer held not entitled to 
 credit for money paid contractors upon 
 warrants not drawn according to the 
 charter. McCormick v. Bay City, 23 
 Mich. 457. 
 
 So under the laws of Indiana — pro- 
 viding for the issuance and sale of bonds 
 to complete water-works, — it is the duty 
 of the common council, and not of the 
 city treasurer, to negotiate and sell such 
 bonds ; but he is liable on his official bond 
 for moneys received by him from the sale 
 thereof, by whomsoever made. Such duty 
 cannot be delegated by the council, by 
 ordinance or otherwise, to the treasurer 
 or any other person. Under an ordinance 
 designating the city treasurer by name as 
 agent for the sale of such bonds, his acts 
 ip negotiating such sales are simply those 
 of an agent of the common council ; and 
 he is not liable on his official bond for the 
 mere sale, assignment, and delivery there- 
 of by him pursuant to such agency. In 
 an action on his official bond for moneys 
 alleged to have been received by him as 
 such treasurer, an answer that by the 
 terms of the negotiation, which was ap- 
 proved by the common council, the 
 proceeds remained in the hands of the 
 purchaser, to be used only as needed 
 in constructing the water-works, and that 
 the purchaser had become insolvent while 
 the funds yet remained in his hands, — 
 Held, to be sufficient. In such case, a 
 report by the treasurer to the council, as 
 to the condition of the fund, charging 
 
 himself with funds remaining in the 
 liands of the purchaser, — Held, not to 
 estop him to deny his liability. State v. 
 Hauser, 63 Ind. 166; as to liability for 
 misapplication of funds,' see Bobinsou v. 
 State, 60 Ind. 26. 
 
 Liability on Conteacts. — Public 
 and municipal officers are not personally 
 liable on contracts within the scope of 
 their authority and line of duty, unless it 
 is very apparent tliat they intended to 
 bind themselves personally. Macbeth v. 
 Haldeman, 1 Term R. 172, and Hodgden 
 V. Dexter, 1 Cranch, 146, are the leading 
 cases. The question is. To whom was the 
 credit given? Did the defendant con- 
 tract in his public or private capacity? 
 See Olney v. Wickes, 18 Johns. (N. Y.) 
 122, where the promise was held not per- 
 sonal. Compare King v. Butler, IS Johns. 
 (N. Y.) 281 ; Gill v. Brown, 12 Johns. (N. 
 Y.) 385; Walker u. Swartout, lb. 444; 
 Mott V. Hicks, 1 Cow. (N. Y.) 513; Shef- 
 field V. Watson, 2 Caines (N. Y.), 69; 
 commented on, 12 Johns. 448 ; Brown v. 
 Bundlett (full discussion), 15 N. H. 360, 
 1844, and cases cited and criticised ; 
 Belknap „. Rlieinhart, 2 Wend. (N. Y.) 
 375; Adams v. Wliittlessey, 3 Conn. 560; 
 8 lb. 329 ; Hammarskold v. Bull, et ul. 
 ("state capitol commissioners") 11 Rich. 
 (South Car.) Law, 493; Lesley v. White, 
 1 Speers, 31 ; Yoimg v. Commissioners 
 of Roads, 2 Nott & McC. 537; Miller 
 V. Ford, 4 Rich. (South Car.) Law, 376; 
 8. c. 4 Strob. 213 ; Copes v. Mathews, 10 
 Sm. & Marsh. (18 Miss.) 398 ; Tucker v. 
 Shorter, 17 Ga. 620 ; Hall v. Cockrell, 28 
 Ala. 507, 1856; but quaere, as to its cor- 
 rectness. In Nickerson v. Dyer, 105 
 Mass. 320, the agents or committee of a 
 town were held not to be personally 
 liable. A public officer contracting with 
 a party who knows the extent of his au- 
 thority is not personally liable, unless 
 such intent is clearly expressed. Broad- 
 well V. Chapin, 2 111. App. 511 ; post, ch. 
 xiv. In the absence of a provision to the 
 contrary, an officer of a municipal corpo- 
 ration is not disabled from entering into a 
 contract with it. Municipality v. Cald- 
 well, 3 Rob. (La). 368, 1842. It is held 
 that where the officers of a public or mu- 
 
264 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. IX. 
 
 the corporation. Amotion, therefore, is the removal of an officer 
 in a corporation from his office, but it leaves him still a member 
 
 nicipal corporation, acting officially, and 
 under an innocent mistake of the law, in 
 which the other contracting party equally 
 participated, with equal opportunities of 
 knowledge, neither party at the time 
 looking tu personal liability, the officers 
 are not, in such case, personally liable, nor is 
 the corporation liable. Houston v. Clay 
 County (unauthorized contract by town- 
 ship trustees for the erection of a bridge), 
 18 Ind. 396, 1862 ; Boardman v. Hayne, 
 29 Iowa, 339, 1870; Duncan a. Niles, 32 
 111. 632, 1863, and cases cited ; Ogden v. 
 Raymond, 22 Conn. 379, 1863; Dameron 
 V. Irwin, 8 Ire. Law (N. C), 421, 1848; 
 Uite V. Goodman, 1 Dev. & Bat. Eq. (N. 
 0.) 364, 1886; Ives u. Hulet, 12 Vt. 314, 
 1840; Stone v. Huggins, 28 lb. 617; 
 Tucker ... Justices, 13 Ire. (N. 0. Law) 
 434; Dey v. Lee, 4 Jones (Law), 238; 
 Tucker a. Shorter, 17 Ga. 620 ; Copes v. 
 Mathews, 10 Sm. & Marsh. (18 Miss.) 
 398; Hall u. Cockrell, 28 Ala. 607; com- 
 pare Potts V. Henderson, 2 Ind. (Carter) 
 327, 1850. Liability under statute of 
 trustees or directors of public works who 
 make unauthorized contracts. Higgins v. 
 Livingstone, 4 Dow, 341 ; Parrott v. Eyre, 
 10 Bing. 283; Wilson v. Goodman, 4 
 Hare, 64. 
 
 Tax Collectok's Liability to 
 Thibd Persons. — Tax collector liable 
 in trespass who seizes without color of 
 law for tax assessment, or under an un- 
 constitutional law. McCoy v. Chillicothe, 
 3 Ohio, 370 ; Ragnet v. Wade, 4 lb. 107 ; 
 Loomis V. Spencer, 1 Ohio St. 160. But 
 a collector whose warrant is in due form, 
 with nothing on its face to show the ille- 
 gality of the tax or the want of authority 
 in the assessors or previous officers, will 
 be protected in executing it, even though 
 the tax be not lawfully assessed. Che- 
 gary v. Jenkins, 1 Seld. (5 N. Y.) 376, 
 1861 ; affirming s. c. 3 Sandf. Sup. Ct. R. 
 409; Abbott B. Yost, 2 Denio (N. Y.), 
 80 ; Savacool v. Boughton, 5 Wend. (N. 
 Y.) 170, 1830, leading case ; Downing v. 
 Rugar, 21 Wend. 178 (warrant of justice 
 to overseers of poor) ; Alexander v. Hoyt, 
 7 Wend. (N. Y.) 89 ; Clark t>. Halleck, 16 
 Wend. (N. Y.) 607 ; People v. Warren, 
 6 HUl (N. Y.), 440 ; Webber v. Gray, 24 
 
 Wend. (N. Y.) 440; Loomis t. Spencer, 
 1 Ohio St. 153; Little v. Merritt, 10 Pick. 
 (Mass.) 547; see Suydam v. Keys, 13 
 Johns. (N. Y.) 444; Gale v. Mead, 2 
 Denio (N. Y.), 160; lb. 232; Easton «. 
 Callender, 11 Wend. (N. Y.) 90; Clark 
 V. Norton, 49 N. Y. 243. Liabihty of as- 
 sessor. Donviii u. Strickland, 57 N. Y. 
 492; 1877. See cases cited in Herman 
 on Executions to this proposition. 
 
 LiABiLiTV OP Pdblio Officeks fob 
 Acts of Subobdinates. — Public officers 
 are not liable for the misconduct or mal- 
 feasance of such persons as they are 
 obliged to employ ; the reason here being 
 that the maxim of respondeat superior has 
 no application, there being no freedom of 
 choice as to the selection and control of 
 agents. Bailey i>. Mayor, etc., 3 Hill (N. 
 Y.), 631, 1842; affirmed in error, 2 Denio, 
 433. 1846; Hall v. Smith, 2 Bing. 166; 
 Pritchard v. Keefer, 53 111.117; Hum- 
 phreys V. Mears, 1 Man. & Ryl. 187 ; Bol- 
 ton V. Crowther, 2 Dowl. & Ryl. 195 ; 
 Harris v. Baker, 4 Maule & Selw. 27 ; 
 Bacheller v. Pinkham, 68 Me. 263. See 
 also Lane v. Cotton, 1 Salk. 17 ; Story on 
 Agency. 320, et seq. ; Story on Bail. 300, 
 302 ; Martin c.. Mayor, etc., 1 Hill (N. 
 Y.), 545, 651; Mayor, etc. v. Furze, 3 
 Hill (N. Y.), 612, 618. City liable for 
 negligence in making public improve- 
 ments, though it let the contract to a con- 
 tractor who is to perform it under the 
 supervision and direction of the city. Chi- 
 cago w. Dermody, 61 111. 431; Chicago v. 
 Joney, 60 111. 383; see post, cli. xxiii.; 
 Wright V. Hoebrook (full discussion), 52 
 N. H. 120, 1872 ; s. c. 13 Am. Rep. 12. 
 
 Liability of Pcbhc Officers fob 
 Acts Jomci al in their Nature. — Offi- 
 cers are not liable for honest errors or 
 mistakes of judgment as to acts within 
 the scope of their authority, jurficiai in 
 their nature, in the absence of malice or 
 corruption, or statute imposing the lia- 
 bility. Ramsey v. Riley, 13 Ohio, 167 ; 
 Steward «. Southard, 17 lb. 402 ; Conwell 
 V. Emrie (road supervisor), 4 Ind. 200 ; 
 Bartlett o. Crozier (highway overseer), 
 17 Johns. (N. Y.) 439; Freeman v. Corn- 
 wall (highway overseer), 10 lb. 470; Mc- 
 Connell i-. Dewey (ruad supervisor), 5 
 
238.] 
 
 AMOTION AND DISFRANCHISEMENT. 
 
 265 
 
 of the corporation. Disfranchisement is to destroy or take away 
 the franchise or right of being any longer a member of the corpo- 
 
 Neb. 385, 1877 ; Johnson v. Stanley, 1 
 Boot (Conn.), 246; Township a. Carey, 
 8 Dutch. (N. J. L.) 877 ; "Waters v. "Wa- 
 terman, 2 Boot, 214 ; Craig v. Burnett, 32 
 Ala. 728; State v. Dunnington, 12 Md. 
 340; Commissioners o. Nesbitt, 11 Gill & 
 J. (Md.) 50. Liability where the officer's 
 function is quasi judicial. "Wilkes v. Din- 
 man, 7 How. 89 (where the subject is 
 much considered, and malice or wilful 
 wrong held to be essential), "Waldron v. 
 Berry, 51 N H. 136, 1871. The members 
 of a city council are not individually 
 liable, in a civil or criminal action, for 
 acts involving the exercise of discretion, 
 unless they act corruptly. Walker v. 
 Hallock, 82 Ind. 239, 1869; Baker v. 
 State, 27 Ind. 485. Liability of ministerial 
 officer, charged by statute with an abso- 
 lute and certain duty. Clark b. Miller 
 and cases cited. But see reference to this 
 case, cited by Miller, J., in Dow v. Hum- 
 bert, 91 U. S. 294, 302, 1875. Public duty, 
 not ordinarily enforceable by private 
 action against the officer, unless given by 
 statute. Foster v. McKibben, 14 Pa. St. 
 168; McConnell v. Dewey (road supervis- 
 or), 5 Neb. 385, 1877. Misapplication of 
 public funds by officer. Township, etc. v. 
 Linn, 36 Pa. St. 431. Neglect to take a 
 land required by law. Boggs v. Hamilton, 
 2 Const. (So. Car.) R. 381; State f. 
 Dunnington, 12 Md. 340. A municipal 
 officer misled into issuing order not liable 
 to the holder. Boardman v. Hayne, 29 
 Iowa, 339. 
 
 LiABiLiTT POK Torts. — Alvord v. 
 Barrett (town clerk), 16 Wis. 175; Amer- 
 ican Print Works v. Lawrence, 3 Zabr. 
 (23 N. J. L.') 590, 601. No liability for acts 
 done by a public officer under lawful au- 
 thority and in a proper manner. lb. Full 
 discussion and cases cited by Carpenter, 
 3. 8. r. in s. c. 1 Zabr. (21 N. J. L.) 248, 
 260, per Green, C. J. ; Caldins v. Baldwin, 
 4 Wend. (N. Y.) 667, and cases cited. 
 How far protected by an unconstitutional 
 statute. lb. Liability for nonfeasance or 
 misfeasance, where the duty is specific, 
 imperative, and not judicial, in its nature. 
 Griffith V. FoUett, 20 Barb. (N. Y.) 630, 
 1855 ; Weaver v. Devendorf, 3 Denio (N. 
 Y.), 117 ; Harmon v. Brotherson, 1 Denio 
 
 (N. Y.), 537; lb. 595; Adsit v. Brady, 4 
 Hill (N. Y.), 630, 1843. The principle on 
 which a public officer is held personally 
 liable for injuries resulting from improp- 
 er execution of official duties is well 
 stated in Nowell v. Wright, 3 Allen 
 (Mass.), 166. In Amy v. Supervisors, 11 
 Wall. 136, 1870, where county supervisors 
 were held to be personally liable for fail- 
 ing to levy a tax, as commanded by the 
 court, to pay the plaintiff's judgment. 
 Mr. Justice Swayne, stating the principle of 
 the decision, says : " The rule is well set- 
 tled, that where the law requires abso- 
 lutely a ministerial act to be done by a 
 public officer, and he neglects or refuses 
 'to do such act, he may be compelled to re- 
 spond in damages to the extent of the in- 
 jury arising from his conduct ; mistake of 
 duty and honest intentions will not excuse 
 the offender." Measure of damages. Dow 
 ». Humbert, 91 U. S. 294, 1875. Liability 
 for fraud. Oakland v. Carpenter, 13 Cal. 
 540 ; ante, sec. 208, n.; post, sec. 910, n. A 
 ministerial officer, acting in good faith, is lia- 
 ble for actual, but not for exemplary dam- 
 ages, for illegal acts injurious to private 
 persons. Tracy v. Swartout, 10 Pet. (U. 
 S.) 80, 1836 (action against collector of 
 customs) ; lb. 137 ; Jenner v. Jolifie, 9 
 Johns. 382. As no one is bound by an 
 unauthorized ordinance, the municipal 
 authorities enacting the same are not in- 
 dividually liable therefor. So held, in ac- 
 tion by an ex-mayor against aldermen for 
 depriving him of his office. Jones v. Lov- 
 ing, 55 Miss. 109. A provision of law 
 making a civil corporation liable "for 
 the illegal doings and defaults " of its , 
 officers (there being no provision that 
 the officers shall not also remain liable) 
 does not deprive the party injured of his 
 right to proceed personally against the 
 officer or agent who committed the injury. 
 Both are liable. Rounds v. Mansfield, 38 
 Me. (3 Heath) 586, 1854. Election offi- 
 cers for refusing vote when liable. Gor- 
 don V. Farrer, 2 Dong. (Mich.) 411; Carter 
 V. Harrison, 5 Blackf. 138 ; Jeffries v. An- 
 keny, 11 Ohio, 374 ; compare Ramsey v. 
 Riley, 13 Ohio, 157. See Jenkins v. Wal- 
 dron, 11 Johns. (N. Y.) 114; Lincoln v. 
 Hapgood, 11 Mass. 350; Bridge v. Lin- 
 
266 MUNICIPAL CORPORATIONS. [CH. IX. 
 
 ration.^ American municipal corporations are, in many respects, 
 essentially different in their constitution from the old English 
 municipal corporations, under which most of the cases on the 
 subject of Amotion and Disfranchisement, usually cited in the 
 books, arose. These cases are often inapplicable here, and should, 
 it is believed by the author, be followed by our courts as preced- 
 ents with unusual caution, and only when they rest upon or 
 declare principles general in their nature, and which embrace in 
 their operations municipal institutions possessing the distinctive 
 characteristics of ours. Here, the inhabitants of the municipalitj' 
 are the corporators ; certain of those inhabitants (usually all of 
 the adult male residents) have the right to elect the legislative 
 or governing body, and also, frequently, the other more impor- 
 tant officers of the corporation. It would seem that the EngHsh 
 doctrine of disfranchisement of a corporator or member has no 
 application to our municipal corporations, whether the corporator 
 be considered the " inhabitant " or the " voter." 
 
 § 239. (178) Whether the power of disfranchisement be inci- 
 dental to the corporation, or must be expressly conferred, respect- 
 ing which there is in England some contrariety of view,^ we need 
 not inquire, for here (were there no constitutional obstacles) the 
 
 coin, 14 lb. 367. Collection and revenue denies that it is an incidental right, and 
 
 officers not liable to the party paying for claims that the rule laid down in the 
 
 money voluntarily paid to them. Elliott second resolution (Bagg's Case) on this 
 
 V. Swartout, 10 Pet. 137, 1836; Thompson point, — that " no freeman of any corpo- 
 
 V. Stickney, 6 Ala. 679. When liable in ration can be disfranchised by the corpo- 
 
 trespass. McCoy v. Chillicothe, 3 Ohio, ration, unless they have authority to do so 
 
 370 ; Looniis v. Spencer, 1 Ohio St. 163.. by the express words of the charter, or by 
 
 Recording officer. Ramsey v. Eiley, 13 prescription," — is the law. Mr. Gloyer 
 
 Ohio, 157 ; approved, Stewart ». South- simply adopts Mr. Willcock's language, 
 
 ard, 17 lb. 402. Glover, 335. Mr. Kyd's exposition of the 
 
 1 2 Kyd, 60-94; Willc. 245-276 ; Glov- second resolution in Bagg's Case, 2 Kyd, 
 er, ch. xvi. pp. 327-328 ; Grant, 250, ■ 62. And see leading case of Eex ». Rich- 
 263. And see 2 Kent Com. 278, 297, ardson, 1 Burr. 517, which was a case of 
 where amotion and disfranchisement are amotion, but has been often taken as 
 used as convertible terms. Angell & asserting an incidental power to disfran- 
 Ames, Corp. ch. xii., where the cases chise for cause as well as amove. Angell 
 are very fully collected, and the doctrine & Ames, sees. 408, 409 ; see, generally, 
 of the English decisions satisfactorily pre- Commonwealth i>. St. Patrick's Society, 2 
 sented. Binn. (Pa.) 448, 1810; Evans v. Phila- 
 
 2 Grant, 263. " This right [of disfran- delphia Club, 60 Pa. St. 107 ; Hopkinson 
 chisement] has been but sparingly exer- v. Marquis of Exeter, Law Rep. 5 Eq. 63 ; 
 eised, though it is undoubtedly an incident State v. Geor^a Med. Soe., 38 Ga. 608 ; 
 to every corporation, with, perhaps, some Sr o. 8 Am. Law Reg. (N. S.) 533, Mr. 
 exceptions in cases of trading and mone- Mitchell's note. 
 
 tary bodies." lb. Willcock (271, pi. 709) 
 
§ 240.] AMOTION AND DISFRANCHISEMENT. 267 
 
 legislature never bestows upon the council, or governing body 
 which represents the corporation, the right to disfranchise the 
 citizen or corporator ; and it is clear that such a formidable and 
 extraordinary authority does not exist, and cannot be exercised 
 by the council, as an incidental or implied right. To burn or 
 destroy the charters of the corporation, or wilfuUj' to falsify its 
 books, were in England considered such breaches of duty on the 
 part of a corporator as would work a forfeiture of the corporate 
 character,^ there being, according to Lord Coke, " a tacit condi- 
 tion annexed to the franchise, which, if he break, he may be 
 disfranchised." 2 Surely, there is here no such tacit condition 
 annexed to the right of a resident of a municipality to be and 
 remain a corporator, though there may be a similar condition 
 annexed to municipal offices. Wilfully to destroy or falsify the 
 charter or books of a municipal corporation is an act which is 
 punishable by the criminal codes of the different states ; and if 
 the offender is convicted and imprisoned, it may result as an 
 incident of such conviction that he will cease, for the time, to be 
 a resident, and hence will cease to be a member of the corpora- 
 tion ; but the corporation itself has no power to disfranchise him, 
 that is, to deprive him of the privileges and rights, without absolv- 
 ing him from the liabilities of other citizens, while he remains 
 within the limits of the municipality. 
 
 § 240. (179) The power to amove a corporate officer from his 
 office, for reasonable and just cause, is one of the common law 
 incidents of all corporations.^ This doctrine, though declared 
 before,* has been considered as settled ever since Lord Mansfield's 
 judgment in the well known case of the King v. Richardson.^ 
 
 1 Mayor v. Pilklnton, 1 Keb. 597 ; Rex bury, 1 Queen's Bench, 751 ; 2 Kyd, 50- 
 V. Chalke, 5 Mod. 257 ; 1 Lord Baym. 94, where the old cases are digested ; 
 226 ; Grant Corp. 285. Glover, eh. xvi. ; WlUc. 246 ; Grant, 240 ; 
 
 2 13 Coke, 98a. Angell & Ames, ch. xii. ; 2 Kent Com. 
 ' Bex V. Richardson, 1 Burr. 517 ; Rex 297. 
 
 V. Liverpool, 2 Burr. 723 ; Bex v. Don- * Lord Bruce's Case, 2 Stra. 819, 820 ; 
 
 caster, 2 Burr. 738 ; Jay's Case, 1 Vent. Tidderley's Case, 1 Sid. 14, per Hale, 
 
 302 ; Lord Bruce's Case, 2 Stra. 819 ; Rex C. B. 
 
 V. Ponsonby, 1 Ves. Jr. 1 ; Rex v. Lyme ^ Rex v. Richardson, 1 Burr. 517. " It 
 
 Regis, Doug. 153 ; Rex v. Tidderley, 1 Sid. is necessary to the good order and govern- 
 
 14, per Bale, C. B. ; Rex v. Taylor, 3 Salk. ment of corporate bodies that there should 
 
 231 ; 1 Roll. Rep. 409; s. o. 3 Bulst. 189 j be such power [amotion], as much as the 
 
 Rex r. Chalke, 1 Lord Raym. 225 ; Rex power of making by-laws." lb. 
 V. Heaven, 2 Term R. 772 ; Reg. v. New- 
 
268 MUNICIPAL CORPOEATIONS. [CH. IX. 
 
 It is there denied that there can be no power of amotion unless 
 given by charter or prescription ; and the contrary doctrine is 
 asserted, — that from the reason of the thing, from the nature of 
 corporations, and for the sake of order and government, the 
 power is incidental. 
 
 § 241. (180) But the power to amove, like every other inci- 
 dental power, is incident to the corporation at large, and not to 
 any select body or particular part of it, and unless delegated to 
 a select body or part, it must be exercised by the whole corpora- 
 tion, and at a corporate assembly regularly and duly convened.^ 
 The power to hold such an assembly is, however, implied in the 
 power of amotion.^ 
 
 § 242. (181) By the corporation at large, as here used, is meant 
 the different ranks and orders wbich compose it, including the 
 definite and indefinite bodies. The essentials in such a corpora- 
 tion of a valid corporate assembly have elsewhere been described. 
 Our corporations, however, have no ranks, orders, or integral 
 parts corresponding strictly to the constitution of an old English 
 corporation. Here the common council, or the elective govern- 
 ing body (whatever name be given to it), exercises all of the 
 powers of the incorporated place. Has the council, as the repre- 
 sentative of the corporation, the incidental powers of a corpora- 
 tion, such as the power to amove, or the power to ordain by-laws ? 
 Or is the council in the nature of a select body, possessing no 
 right to exercise any of the ordinary incidental powers of the 
 corporation, unless expressly authorized by charter or legislative 
 grant ? The question not being judicially settled as to our muni- 
 cipal corporations, the opinion is ventured that, in the absence of 
 an express grant or statute conferring or limiting the power, the 
 
 1 Lord Bruce's Case, 2 Stra. 819; by charter, it belongs to the corporation. 
 Rex V. Lyme Regis, Doug. 153 ; Rex at large. Lord Mansfield seemed to be 
 V. Richardson, supra; Rex v. Doncaster, of opinion that it was competent to trans- 
 Say. 38; Rex v. Taylor, 8 Salk. 231 ; Rex fer this power from the whole body to a 
 V. Feversham, 8 T. R. 356; Fane's Case, select body by an ordinance or by-law. 
 Doug. 153 ; Willo. 246, pi. 629 ; Grant, Bagg's Case, 11 Co. 99a ,• Rex v. Rich- 
 240,241; 2 Kyd, 56; Glover, 329; State ardson, 1 Burr. 539. But this question 
 V. Jersey City, 1 Dutch. (N. J.) 536, 1856. seems not to have been directly deter- 
 Even if the right to elect an officer be in mined. Willc.247, pi. 684 ; lb. 248, pi. 635 ; 
 a. particular person or select class, the State v. Jersey City, 1 Dutch. (N. J.) 536. 
 power to amove is not incidental to it, " Fane's Case, Doug. 153 ; Rex v. 
 but unless expressly changed or limited Lyme Regis, Jb. 149. 
 
243.] 
 
 AMOTION AND DISFRANCHISEMENT. 
 
 269 
 
 common council of one of our ordinary municipal corporations, in 
 the absence of any express or implied restriction in the charter, 
 does possess the incidental power, not only to make by-laws, but, 
 for cause, to expel its members, and, for cause, to remove corpo- 
 rate officers, whether elected by it or by the people. 
 
 § 243. Whatever necessity or reason exists for the right of 
 amotion at common law, with respect to the corporation at large, 
 exists here with respect to that authorized body by which alone 
 the corporation acts, and which exercises all its powers and 
 functions. All of the inhabitants cannot meet and act in their 
 primary capacity, except in organizations like the towns in the 
 New England states ; and if the right of amotion exists at all, it 
 must be exercised by the council or governing body of the cor- 
 poration. If it does not exist in the council, it cannot be dele- 
 gated to it by an ordinance or by any act of the corporation, 
 though if the right does exist, its exercise may, of course, be 
 regulated by ordinance or by-law.^ 
 
 1 See, generally, Willard's Appeal, 4 
 Rh. Is. 697 ; State, etc. v. Trustees, etc., 
 
 5 Ind. 89 ; State v. Bryoe, 7 Ohio, part II. 
 p. 414; Comnionwealth ». St. Patrick's 
 Sodety, 2 Binn. (Pa.) 448; Common- 
 wealth V. Bussier, 5 Serg. & Rawle (Pa.), 
 451 ; Commonwealth v. Guardians, etc., 
 
 6 Serg. & Rawle (Pa.), 469; Common- 
 wealth V. Sutherland, 3 Serg. & Rawle 
 ( Pa.), 145 ; Johns v. NichoUs, 2 Dall. 184 ; 
 1 Yeates, 80 ; People v. Comptroller, etc., 
 20 Wend. (N. Y.), 595; State, etc. v. 
 Lingo, 26 Mo. 496; Fawcett v. Charles, 
 13 Wend. 473 ; Hoboken v. Gear, 3 Dutch. 
 (N. J.) 265; People v. Board of Trade, 
 45 111. 112, 1867; Neall v. Hill, 16 Cal. 
 145 ; State v. Chamber of Commerce, 20 
 Wis. 63; People v. Medical Society, 24 
 Barb. (N. Y.) 570; Evans D.Philadelphia 
 Club, 50 Pa. St. 107; State v. Georgia 
 Medical Society, 38 Ga. 608 ; s. c. 8 Am. 
 Law Reg. (N. S.) 533, and note ; Smith 
 V. Smith, 8 Desaus. 557. But see State 
 V. Jersey City, 1 Dutch. (N. J.) 586, 
 in which the power to expel a member 
 of the council was expressly conferred, 
 but where Mr. Justice Potts, delivering 
 the opinion of the court, says : " The 
 rule is well settled, that a corpora- 
 tion has, at common law, an inherent 
 
 jurisdiction to expel a member for suf- 
 ficient cause." After noticing the of- 
 fences which will justify expulsion, he 
 adds : " But the jurisdiction in this case 
 is not derived from the common law. 
 The common council is not the corpora- 
 tion, and, whatever powers a municipal 
 corporation may have to amove or expel 
 a member at common law, it is clear that 
 the corporation itself has not, by any by- 
 law, delegated any of them to the com- 
 mon council, and that body, therefore, 
 cannot avail itself of the common law 
 jurisdiction, vested as an inherent right 
 in the corporation itself, to expel a mem- 
 ber of their own body. 2 Bao. Abr. 21, 
 title Corporations; Willc. on Corp. 629. 
 The council derives its jurisdiction from 
 the charter of the corporation." This 
 case rules that where, in express terms, 
 the right of the council to expel a mem- 
 ber for certain causes is given, it cannot 
 exercise the power for any other cause. 
 And it would seem to be the opinion of 
 the court, or at least of the judge de- 
 livering the opinion, that the common 
 law power of expulsion belonging to a 
 corporation could not be exercised by the 
 common council, that body not being the 
 corporation in which the power is vested. 
 
270 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 § 244. (182) A provision in a city charter vesting the board 
 of aldermen with the sole power to try all impeachments of city 
 officers, the judgment only extending to removal and disquali- 
 fication to hold any corporate office under the charter, is not 
 unconstitutional as authorizing the exercise of judicial powers 
 by a legislative or municipal body, but is rather the exercise 
 of a power necessary for its police and good administration.* 
 
 § 245. (183) When the terms finder which the power of 
 amotion is to be exercised are prescribed, they must he pursued 
 with strictness? Whether, if the power to expel or remove be 
 given for certain causes, this excludes the right to exercise the 
 power in any other case, will depend upon the intent of the 
 legislature to be gathered from a consideration of the whole 
 charter or statute. Power to appoint " subject to removal only 
 for," etc., clearly limits the power of removal to the specified 
 causes.^ Express power of expulsion or removal for specified 
 reasons was, in New Jersey and in Georgia, considered to exclude 
 any implied power, or to limit the right to the enumerated 
 causes.* 
 
 Same principle as to private corporations. 
 State B. Chamber of Commerce, 20 Wis. 
 72. Compare People v. Board of Trade, 
 45 111. 113. 
 
 1 State I'. Ramos, 10 La. An. 420. See 
 People ». Bearfield, 35 Barb. N. Y. 254, 
 supra, sec. 200. A board of aldermen, 
 sitting in a judicial capacity as a court of 
 impeachment to try charges preferred 
 against a city officer by another branch 
 of the municipal governing body, is a 
 court of limited jurisdiction, and if not 
 sworn, or not sworn by an officer au- 
 thorized to administer oatlis, tlieir pro- 
 ceedings and judgment of guilty are void, 
 and create no vacancy. Tompert v. Lith- 
 gow, 1 Bush (Ky.), 176, 1866. See Had- 
 ley V. Mayor, etc., 33 N. Y. 603, cited m- 
 fra, sec. 253, note. 
 
 2 State V. Lingo, 26 Mo. (6 Jones) 496 ; 
 State V. Trustees of University, 5 Ind. 77, 
 89, 1854; State v. Bryce, 7 Ohio, part IL 
 p. 414; State v. Chamber of Commerce, 
 20 Wis. 63 ; Regina ». Sutton, 10 Mod. 
 76 ; Paston v. Urber, Hutt. 108 ; Regina 
 V. Ricketts, 7 Ad. & EI. 966 ; Regina ». 
 Oxford, 6 Ad. & El. 849 ; Commonwealth 
 
 V. Sutherland, 3 Serg. & Rawle (Pa.), 146 ; 
 Commonwealth u. Shaver, 3 Watts & S. 
 (Pa.) 338. In the Queen v. Sutton, supra, 
 so strictly was a clause in a charter con- 
 ferring the right of removal construed, 
 that it was held that where acts were to 
 be done by a majority, that word was to 
 be understood as a majority of the whole 
 corporation, and that if the officer whose 
 removal was proposed was a member, it 
 could be effected only by a majority of all 
 the members, including himself, and that 
 his personal interest did not exclude him 
 from voting as a member upon the ques- 
 tion. See, also. State w. Jersey City, 1 
 Dutch. (N.J.) 536; Madison v. Korbly, 
 32 Ind. 74 ; State k. McGarry, 21 Wis. 
 496, where "other cause" for removal 
 was held to mean " otlier like cause." 
 
 « People V. Higgina, 15 111. 110. 
 
 * State V. Jersey City, 1 Dutch. (N. 
 J.) 536, 1856; The Mayor, etc. v. Shaw, 
 16 Ga. 172, 1854. See s. c. 19 lb. 468 ; 21 
 71. 280 ; 25 lb. 590. But see Common- 
 wealth V. St. Patrick's Society, 2 Binn. 
 (Pa.) 441; 4 lb. 448; Angell & Ames, 
 sec. 415. Under the Illinois statute, it is 
 
§ 247.] AMOTION AND DISFKANCHISEMENT. 271 
 
 § 246. (184) A charter of a municipal corporation gave to the 
 common council express power to " expel a member for disorderly 
 conduct" and one of the aldermen, being guilty of official cor- 
 ruption in receiving bribes, was, after a hearing, expelled from 
 the council. The court was of opinion that the question as to 
 the right to expel for the conduct charged depended upon the 
 construction of the words " disorderly conduct "; and it held that 
 receiving bribes for his official influence and votes was disorderly 
 conduct, within the meaning of the charter.' In another case, 
 the charter authorized the council " to dismiss the marshal for 
 malpractice in office, or neglect of duty"; and it was held that 
 the council could not remove this officer for the crime of gambling, 
 as this was neither malpractice in office nor official neglect, 
 within the meaning of the charter.^ 
 
 § 247. (185) The power to expel a member of the council 
 does not authorize a resolution by it that " the president of the 
 council be directed not to appoint a certain member on any com- 
 mittee, nor call his name, nor allow him to take part in the 
 action of the board," since this would create no vacancy which 
 could be supplied, but would leave the seat occupied, while it 
 silenced the occupant, and left his constituents unrepresented.^ 
 
 held that the county authorities do not the colonial parliament of Dominica had 
 
 possess general powers of removal, and not the inherent privilege of parliament 
 
 that they cannot remove a treasurer as a court, and could not therefore punish 
 
 elected by the people, except for causes for contempt ; but in the later case of 
 
 specified in the statute ; but it may be The Speaker i;. Glass, 3 lb. 560, it was 
 
 observed that a county treasurer is not a decided that the delegation of legislative 
 
 corporate officer. Clark v. The People, authority to the Victoria parliament was 
 
 15111.213,1853. So a power of removal broad enough to include this power, 
 
 conferred upon the mayor and common These cases afford very interesting illus- 
 
 council cannot be exercised by the coun- trations of the nature of the power to 
 
 cil alone. Charles s. Hoboken, 3 Dutch, punish for contempt, Power of courts of 
 
 (N. J.) 203. the United States to punish for contempt. 
 
 1 State V. Jersey City, 1 Dutch. (N. Burr's Trial, 355; U. S. v. Hudson, 7 
 J.) 536, 1856. Cranch, 82 ; Kearney, in re, 7 Wheat. 88. 
 
 2 Mayor v. Shaw, etc., 16 Ga. 172, Power of Congress. 11 U. S. Stats, at 
 1854. Large, 155; 12 lb. 333. 
 
 Whether the council possesses the ^ gtatew. Jersey City, 1 Dutch. (N. J.) 
 
 power to punish for contempt depends upon 536, 1856. See State v. Chamber of Com- 
 
 the provisions of the charter. The power merce, 20 Wis. 72. Whether, pending 
 
 must, as the author conceives, be con- proceedings to expel, a member can be 
 
 ferred either expressly or as incidental to suspended from his duties, was a question 
 
 some power which is conferred, or it will not determined in the case ; but in the 
 
 not exist In Doyle v. Falconer, 1 Privy State, etc. v. Lingo, 26 Mo. 496, 1858, it 
 
 Council Appeals, 329, it was held that was held that the power to provide for 
 
272 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 § 248. (186) The expulsion of a member of the common 
 council does not disqualify him from being re-elected to the same 
 oiEce, unless it is expressly so provided by the charter; for 
 where the law annexes a disqualification to an offence, it does so 
 in terms. Hence, if a member having been expelled, even for 
 bribery, be re-elected, he cannot be expelled a second time for 
 the same identical act for which he had before been expelled.^ 
 
 § 249. (187) It was held in a case in Rhode Island that a 
 clerk of a school committee — an officer created by the school law, 
 and necessary to the organization and legal action of the com- 
 mittee — may, after an election by the committee, be removed 
 from office by the committee, but only for cause, as the statute 
 gives no express power to remove, and after due notice and 
 opportunity given him to defend himself upon the charges pre- 
 sented. ^ 
 
 removing irom ofSce corporate officers 
 gives the power to suspend from office 
 during the investigation of the charges 
 for which the suspension was made. Tlie 
 court say, " The power to remove necessa- 
 rily includes the minor power to suspend." 
 lb. 499. 
 
 The charter of a city empowered the 
 mayor and aldermen for sufficient cause 
 to remove constables and police officers. 
 By a vote of the mayor and aldermen, 
 the plaintiff, a constable and police offi- 
 cer, was "suspended from duty on the 
 police," and from that time was not per- 
 mitted to perform the duties of the office, 
 although he was ready and offered to do so, 
 until he was afterwards reinstated. It 
 was held that he could not recover for 
 services during the period of his suspen- 
 sion. Ladd, J., saySj " It does not seem 
 to require argument to show that the 
 power to remove must include the power 
 to suspend." Shannon o. Portsmouth, 
 54 N. H. 183, 1874 ; Westberry v. Kansas 
 City, 64 Mo. 493, 1877; Wayne Co. «. 
 Benoit, 20 Mich. 176; Attorney General 
 ». Davis, 44 Mo. 131 ; Primm v. Caron- 
 delet, 23 Mo. 22. 
 
 Eelator was removed from the office 
 of policeman of the city of New York, by 
 the board of police, under the charge of 
 " conduct unbecoming an officer," tins 
 being one of the o&nces for which, under 
 
 the statute, a policeman can be removed. 
 The specifications were that he was ap- 
 pointed policeman contrary to law when 
 he was more than thirty years of age, 
 and that he had been appointed after hav- 
 ing resigned from the force without a 
 vote by yeas and nays contrary to the 
 requirements of law. It was held that 
 these speeifications had only reference to 
 relator's title to the office and not to his 
 conduct while an officer, and did not au- 
 thorize the removal. People ex rel. Clapp 
 V. Board of Police, 72 N. Y. 445, 1878. 
 Reported below, 5 Hun, 457. 
 
 1 State V. .lersey City, 1 Dutch. (N. J.) 
 536, 1886. If the common council, with- 
 out autliority, suspend a member from 
 the duties of his office, mandamus is a 
 proper remedy to restore him to the exer- 
 cise of his legal rights, lb. ; Willc. on 
 Municipal Corporations, 868, pi.- 74, 75; 
 lb. 377, pi. 96; 3 Black. Com. 110; Rex 
 V. Barker, 2 Burr. 1266 ; Angell & Ames 
 on Corporations, sees. 702, 706. 
 
 2 Willard's Appeal. 4 Rh. Is. 595, 597, 
 per Ames, C. J., who says, " Such a power 
 with regard to such an officer, unless ex- 
 pressly forbidden by law, is incidental to 
 the committee as necessary to enable it 
 duly to perform its functions." lb. p. 601. 
 It is sufficient cause for the removal of 
 such a clerk that he refuses to produce 
 papers which belong to the body which 
 
§ 251.] AMOTION AND DISrEANCHISEMENT. 273 
 
 § 250. (188) Where an officer is appointed during pleasure, or 
 where the power of removal is discretionary, the power to remove 
 may be exercised taithout notice or hearing. But where the ap- 
 pointment is during good behavior, or where the removal can only 
 be for certain specified causes, the power of removal cannot, as 
 will presently be shown, be exercised, unless there be a charge 
 against the officer, notice to him of the accusation, and a hearing 
 of the evidence in support of the charges, and an opportunity 
 given to the party of making defence.^ 
 
 § 251. (189) In the leading case of the King v. Richardson,, 
 the point was decided, as above mentioned, that a corporation, in 
 the absence of an express grant of authority, had the incidental 
 power to make a by-law to remove officers for just cause. Lord 
 Mansfield, in that case, classified the offences which would justify 
 the exercise of the power ; and his judgment therein has been 
 followed both in England and in this country, in cases arising in 
 private corporations not of a pecuniary character. According to 
 Lord Mansfield, there are three sorts of offences for which an offi- 
 cer or corporator may be discharged : 1. Such as have no imme- 
 diate relation to his office, but are themselves of so infamous a 
 
 elected him, and of which he is simply land, 3 Serg. & Eawle (Pa.), 145; Field 
 
 the custodian, or refuses to keep or v. Girard College, 54 Pa. St. 233 ; State v. 
 
 amend the records when duly ordered Doherty, 25 La An. 119, 1873; s. c. 13 
 
 to do so. lb. Am. Rep. 131. 
 
 1 Field V. Commonwealth, 32 Pa. St. It is the law in England, as applied to 
 478, 1859 ; Ramshay, in re, 83 Eng. Com. the old corporations, that causes which 
 Law, 174, 189, 1852; Hennen, in re, 13 disqualify the person to be an officer will 
 Pet. (U. S.) 230; Queen w. Governors, etc., not authorize the corporation to amove 
 8 Ad. & El. 682 ; Bagg's Case, 11 Coke, him, but he must be ousted by quo war- 
 93 (6); Rex v. Coventry, 1 Ld. Raym. ranto. The reason given is that one so. 
 391 ; Dr. Gaskin's Case, 8 T. R. 209 ; Rex disqualified is not, in law, a corporate- 
 V. Oxford, 1 Salk. 428 ; Rex v. Mayor, etc., officer, and hence cannot be amoved as 
 1 Lev. 291 ; 2 Kyd, 58, 59 ; Willc. 258, such by the corporation. Rex v. Don- 
 254; Grant, 244; Rex v. Andover, 1 Ld. caster. Say. 40; Buller N. P. 203; Rex 
 Raym. 710; Page v. Hardin, 8 B. Mon. v. Lyme Regis, Doug. 85; Symmers v. 
 648; Hoboken v. Gear, 3 Dutch. (N.J.) Regem, Cowp. 502; Willc. 259, pi. 669; 
 265; Madisonw. Korbly, 32 Ind. 74, 1869 ; lb. 281, pi. 728. And see Fawcett v. 
 Stadler v. Detroit, 13 Mich. 346, 1865. Charles, 13 Wend. 473, 1835. It has else- 
 Charter power of removal, without where been shown that with us the coun- 
 cause, at any time, of a police patrol oils of municipal corporations are often 
 appointed for a year, see Chicago u. made judges of the qualifications of their 
 Edwards, 58 111. 252, 1871. As to the re- members and officers, and this may 
 m<wo/, by the appointing power, of officers, modify or change the rule above men- 
 the duration of whose term is not fixed, tioned, which seems to rest on narrow 
 see People v. Comptroller, etc., 20 Wend, and technical grounds. 
 (N. Y.) 595; Commonwealth v. Suther- 
 
 VOL. I. 18 
 
274 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 nature as to render the offender unfit to execute any public fran- 
 chise. 2. Such as are only against his oath and the duty of his 
 office as a corporator, and amount to breaches of the tacit condi- 
 tion annexed to his franchise or office. 3. Offences of a mixed 
 nature, — as being an offence not only against the duty of his 
 office, but also a matter indictable at the common law.^ In of- 
 fences of the first class the removal can only be made after there 
 has been a previous conviction in a court of law ; and an amotion 
 wiU not be sustained by a subsequent conviction.^ In offences of 
 the second class the corporation may try, and if the charge is es- 
 tablished, remove, without any previous or other proceeding in 
 the courts.* In offences of the third class the English judges 
 have differed on the point whether the officer may or may not be 
 removed before a conviction in a court of justice. The principal 
 cases and the result on this point are briefly stated in the note.* 
 
 1 Rex V. Richardson, 1 Burr. 517, 538, 
 1758; followed, Rex v, Liverpool, 2 lb. 
 723. So, also, in Commonwealth v. St. 
 Patrick's (Benevolent) Society, 2 BInn. 
 (Pa.) 441, 1810; Commonwealth o. Guar- 
 dians, etc., 6 Serg. & Rawle (Pa.), 469, 
 1821. These cases adopt Lord Mans- 
 field's classification, and assert the inher- 
 ent power of corporations to expel for 
 offences falling within any of the three 
 classes. See, also, Butch. Benef . Assoc, 
 85 Pa. St. 151 ; 38 76. 278 ; Evans v. Phila- 
 delphia Club, 50 Pa. St. 107 ; Society, etc. 
 V. Commonwealth, 62 Pa. St. 125. 
 
 The courts may, by mandamus, compel 
 a corporation to amove an oflScer ; and the 
 result of the cases on this point is consid- 
 ered to be that where the offence of the 
 officer is such that the corporation has the 
 power to amove, the court will only com- 
 pel it to do so where some one is injured 
 by the omission to remove ; but where it 
 is required to amove, or the office is de- 
 clared by the charter or statute to be void 
 if such an act be done or omitted, there 
 the court will compel it to amove, though 
 no one be shown to have been aggrieved. 
 Rex V. Truro, 3 Barn. & Aid. 592 ; Rex 
 V. West Looe, 5 Dowl. & R. 416 ; Rex v. 
 Totness, lb. 488 ; Grant on Corp. 243, and 
 note. 
 
 '^ Hex V. Richardson, supra, and cases 
 cited in last note. 
 
 ' Rex V. Richardson, supra ; Common- 
 
 wealth V. St. Patrick's Society, supra, and 
 cases cited in preceding note. 
 
 < Rexw. Carlisle, Fortesc. 200 ; s.c. 11 
 Mod. 379. In this case the corporation, 
 before conviction, amoved a capital citizen 
 for giving a bribe to a freeman and offer- 
 ing him another to influence his vote at 
 the election for a mayor. The court's 
 judgment was in favor of the right to 
 amove. Although there might have been 
 » previous conviction, yet this being a 
 great offence against the duty of his office, 
 the corporation might amove without a 
 conviction. In Rex v. Derby, Cas. Temp. 
 Hardw. 155, Lord Hardwicke mistook the 
 above case on this point, and inclined to 
 think there ought to be a previous con- 
 viction. And such seemed also to be the 
 inclination of Bolt, C. J., in Rex v. Chalke, 
 Comb. 397, where the removal was before 
 conviction, for criminally razing entries 
 in the corporation books which were at 
 first proper, but the point was not de- 
 cided. In Haddock's Case, T. Raym. 439, 
 the amotion was for riotously assembling 
 and assaulting several corporators, thereby 
 impeding the business of the corporation. 
 It was considered that the offence was 
 twofold, — one against the duty of his 
 office as a corporator, the other (wholly 
 disconnected) of a riot. And as he might 
 be guilty of one and yet be acquitted the 
 other, the corporation might amove with- 
 out conviction ; and the case is said to be 
 
§ 252.] 
 
 AMOTION AND DISFRANCHISEMENT. 
 
 275 
 
 § 252. (190) Principle and sound policy require that the im- 
 plied power of removal for offences against the corporation be 
 restricted to acts of a serious nature directly affecting the rights 
 and interests of the corporation.' Causes for removal have, in 
 some instances, been held sufficient in England which would not, 
 probably, be so regarded in this country. Tlie principal English 
 cases are given in the note. The sufficiency and reasonableness 
 of the cause of removal are questions for the courts.^ 
 
 different from that of Chalke (supra), for 
 there the officer could not have been 
 guilty of the offence at law without at 
 the same time having been guilty of a 
 breach of liis duty. The cases decided 
 are considered to favor this view, viz., if 
 the act is criminal and single in its nature, 
 80 that a conviction or acquittal in the 
 courts of law will necessarily determine 
 the guilt or innocence of the party, there 
 must be a conviction, but otherwise there 
 may be a removal without, or independent 
 of, a conviction. Buller's N. P. 206 ; Willc. 
 249-252; Glover, 331, 338; Grant, 240; 
 2 Kyd, 88-94, where the prior cases are 
 digested and stated. Lord Mansfield, in 
 Rex V. Richardson, 1 Burr. 538, leaves the 
 point untouched. A removal for a riot in 
 the council chamber, without a previous 
 conviction, is said to have been held good. 
 Rex V. Yates, Style, cited 8 Mod. 101. 
 See, further, Earle's Case, Garth. 173; 
 Rex V. Wells, 4 Burr. 1999; Regina v. 
 Newberry, 1 Q. B. 751; 2 Bac. Abr. 
 (Bouv. ed.) 476, and cases cited. 
 
 1 Evans v. Philadelphia Club, 50 Pa. 
 St. 107 ; Butch. B. Assoc, 35 Pa. St. 
 151; 38 76. 278; Society, etc. v. Com- 
 monwealth, 52 Pa. St. 125; Common- 
 wealth V. Philadelphia Society, 5 Binn. 
 (Pa.) 486 ; State v. Common Council, 9 
 Wis. 254 ; Mayor, etc. v. Geisel, 19 Ind. 
 344 ; Same v. Wright, lb. 346. 
 
 2 Rex b. Andover, 3 Salk. 229. Pm- 
 erbj of alderman, so that he could not pay 
 taxes, sufficient cause for amoving him. 
 //;., but not applicable here. But bank- 
 ruptcy insufficient cause of amotion of 
 councilman. Rex v. Liverpool, 2 Burr. 
 723 ; see Rex v. Chitty, 6 Ad. & E. 609. 
 Total desertion of duties of office sufficient 
 cause. BuUer's N. P. 206 ; Rex r. Rich- 
 ardson, 1 Burr. 541. When absence and 
 non-attendance upon meetings, and neglect 
 of duty, will be sufficient cause. See 
 
 Rex V. Richardson, supra; Rex v. Wells, 
 4 Burr. 2004 ; 1 Hawk. P. C. ch. Ixvi. sec 
 1, as to official neglect of duty ; approved 
 by Lord Mansfield, in case last cited ; 
 Lord Bruce's Case, 2 Stra. 819, and notes ; 
 Rex 0. Ipswich, 2 Ld. Raym. 1233 ; 8. c. 
 Salk. 443 ; Buller's N. P. 206, 207 ; Lord 
 Hawley's Case, 1 Vent. 146 ; Rex v. Har- 
 ris, 1 Barn. & Ad. 936 ; Queen u. Mayor, 
 etc of Pomfret, 10 Mod. 107 ; 2 Kyd, 65 
 et seg., where the older cases are stated. 
 Willc 255-264 ; Angell & Ames, sec. 427, 
 giving summary of English cases. Much 
 depends upon the cause of the neglect, 
 and whether the effect is to obstruct or 
 hinder the business of the corporation or 
 officer from being done. 
 
 Habitual drunkenness, disqualifying from 
 the performance of duty, is a sufficient 
 cause to remove an alderman or officer 
 charged with magisterial functions. Rex 
 V. Taylor, 3 Salk. 231 ; 1 Rolle, 409 ; 3 
 Bulst. 190. But casual intoxication, or 
 being drunk by accident, is not a suffi- 
 cient cause, for the reason (charitably 
 allowed) that this is likely to happen to 
 the best. Rex o. Taylor, supra, A. I). 
 1616. Old age is insufficient. Bac Abr. 
 Corp. E. 9 ; Hazard's Case, 2 Rolle, 11. 
 
 Mere threats or attempts, no injury re- 
 sulting, not sufficient. Bagg's Case, 11 
 Coke, 93. Insulting language, or libel upon 
 mayor or officers, held insufficient, "on the 
 ground that personal offences are to be 
 punished by law, and not by the corpora- 
 tion. Rex V. Oxford, Palm. 455 ; Bagg's 
 Case, 11 Coke, 93, 96, 97, 98, 99 ; Clark's 
 Case, 2 Cro. 506 ; Buller's N. P. 203 ; Rex 
 V. Lane, Fortesc. 275 ; s. c. 11 Mod. 270; 
 Earle's Case, Carth. 174; Willc 261, pi. 
 680. See Regina v. Rogers, 2 Ld. Raym. 
 777 ; Innes v. Wylie, 1 Carr. & K. 257 ; 
 Regina v. Treasury, 10 Ad. & E. 374 ; 2 
 Perr. & D. 498. 
 
 Official misconduct, amounting to mis- 
 
276 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. IX. 
 
 § 253. (191) Respecting the proceedings to amove, it has al- 
 ready been observed that they must be had by and before the 
 authorized body duly assembled, in conformity with the rules on 
 that subject, which are elsewhere stated.^ The proceeding in all 
 cases where the amotion is for cause is adversary or judicial in its 
 character ; and if the organic law of the corporation is silent as to 
 the mode of procedure, the substantial principles of the common 
 law as to proceedings affecting private rights must be observed." 
 
 ♦ 
 § 254. (192) And first, the officer is entitled to a personal 
 
 notice of the proceeding against him and of the time when the 
 
 trial body will meet. It is not necessary that the notice, citation, 
 
 or summons set out the charges in detail, but it should contain 
 
 demeanor, has been before mentioned, 
 and the cases cited. The misconduct 
 must, it seems, specially relate to the ex- 
 ecution of the office. Rex v. Wells, 4 
 Burr. 1999; see Begina k. Newberry, 1 
 Q. B. 751. If the same person hold Iwo 
 offices, misconduct with respect to one 
 will authorize removal from that one, hut 
 not from both ; but if the offence is 
 against the duties of both, the removal 
 may be from both. Ilex v. Chalke, 1 Ld. 
 Kaym. 226; s. c. 6 Mod. 257; Kex v. 
 Doncaster, 2 Ld. liaym. 1566 ; s. c. 1 
 Barnard. 265 ; Rex v. Wells, 4 Burr. 1999 ; 
 Rex V. Harris, 1 B. &'Ad. 936. Misemploy- 
 ment of corporate funds in his custody is 
 not sufficient cause of amotion, though 
 generally it is good cause of suspension 
 from a financial office, for the court will 
 not grant a mandamus to restore until the 
 accounts are made up and submitted to 
 the corporation. Rex v. Chalke, 1 Ld. 
 Raym. 266; 8. c. 5 Mod. 259; Rex v. 
 London, 2 Term R. 182; Willc. 262, pi. 
 685 i Angell & Ames, sec. 428. On prin- 
 ciple, it may be suggested that if such a 
 thing as an implied power of amotion 
 exists at all, it should extend to a case 
 ■where the financial officer of a corpora- 
 tion is misemploying its funds entrusted 
 to his safe keeping. 
 
 1 Rex V. Taylor, 3 Salk. 231 ; Rex v. 
 Sandys, 2 Barnard. 302 ; Taylor v. Glou- 
 cester, 1 Roll. 409 ; 8. c. 3 Bulst. 190 ; 
 Rex V. Chalke, 1 Ld. Raym. 226 ; 2 Kyd, 
 57 ; Grant, 245, 275 ; Willc. 264, pi. 691 ; 
 lb. 266, pi. 698. Necessity for vote or 
 
 corporate act, declaring the removal or 
 expulsion. Commonwealth v. Pennsyl- 
 vania, etc. Institute, 2 Serg. & Rawle 
 (Pa.), 141 ; Commonwealth v. German 
 Society, 15 Pa. St. 261 ; Stadler v. De- 
 troit, 13 Mich. 346. 
 
 Where, by statute, the mayor, recorder, 
 and an alderman were constituted a body 
 to try charges against policemen ap- 
 pointed by the corporation, with power 
 to suspend or remove, the presence of the 
 mayor is essential to the constitution of 
 the legal body, and if one act in the trial 
 of such a charge as mayor, who is not 
 such de jure [or de facto], the order of re- 
 moval is void. Hadley t. Mayor, etc., 
 33 N. Y. 603 ; see supra, sec. 244. Special 
 provision of charter construed to give the 
 power of removal to the mayor and coun- 
 cil, and not to the council alone. Charles 
 V. Hoboken, 3 Dutch. (N. J.) 203. 
 
 ^ State V. Bryce, 7 Ohio, part II. pp. 
 414, 416, 1836. "This proceeding," 
 (amoral of a trustee of the university) 
 "is essentially adversary; the justice of 
 the common law permits no investigation 
 of facts which may be followed by a loss 
 of a right or by the infliction of a pen- 
 alty, to be conducted ex parte." Jb., per 
 Lane, J. Murdock v. Academy, 12 Pick. 
 244; State v. Trustees, etc., 5 Ind. 77. 
 Charter mode, if prescribed, must be pur- 
 sued, lb.; Bacher's Case, 20 Pa. St. 
 425 ; see People v. Bearfield, 35 Barb. (N, 
 Y.) 254 ; State v. Common Council, 9 Wis. 
 254 ; Madison v. Korbly, 32 Ind. 74 ; Tom- 
 pert V. Lithgow, 1 Bush (Ky.), 176, 1866. 
 
§ 254] 
 
 AMOTION AND DISFRANCHISEMENT. 
 
 277 
 
 the substantial fact that a proceeding to amove is intended.^ The 
 analogies of the ordinary procedure in the courts of the state (in 
 the absence of statute or by-law) may be followed, respecting 
 such details as the notice or summons, mode of service, etc. No- 
 tice may be dispensed with : 1st. By appearance and answer to 
 the charges.^ 2d. By a total desertion of the place,^ so that it is 
 not practicable to give the notice, as where the officer has perma- 
 nently, not temporarily, left the municipality and resides con- 
 stantly elsewhere with his family. Though he may have been 
 absent or left the borough, yet if he return and be in the place at 
 the time of the amotion, he is entitled to notice.* If the amotion 
 be for good cause, such as conviction of an infamous crime,^ or 
 the repeated declaration of the officer that he would not discharge 
 the duties of his office,® while it would be more regular to give 
 the notice, yet its omission will not entitle him to a mandamus to 
 be restored ; for if restored he could be amoved again, and the 
 courts will not order a restoration where they can see that there 
 is good ground of removal, and that the order to restore would 
 be without practical and useful effect.' With these exceptions, 
 
 1 Queen v. Saddlers' Co., 10 House of 
 Lords Cases, 404 ; State v. Bryce, supra 
 Rex V. Richardson, 1 Burr. 540; Rex v. 
 Doncaster, 2 Burr. 738 ; see 1 B. & Ad. 
 942; Rex v. Liverpool, 2 Burr. 731 
 Bagg's Case, 11 Rep. 99a; Rex v. Wil- 
 ton, 5 Mod. 259; Exeter v. Glyde, 4 Mod 
 37 ; Rex v. Ipswich, 2 Ld. Raym. 1240 
 WiUc. 264, 265 ; Innes v. Wylie, 1 C. & K, 
 257; South P. R. Co., 5 Ind. 165; People 
 V. Benevolent Society, 24 How. Pr. 216 
 Delacey v. Neuse, etc. Co., 1 Hawks (N. 
 C), 274; Commonwealth v. Pennsylvania 
 Benef. Institute, 2 Serg. & Rawle (Pa), 
 141 ; Society v. Vandyke, 2 Whart. (Pa.) 
 309; Nichols, in re, 6 Abb. New Cas. 474; 
 8. c. 57 How. Pr. 395. Where the power 
 of removal is vested in the mayor for 
 cause, he acts judicially, and a writ of 
 prohibition will lie against him, if he ex- 
 ceeds his jurisdiction. People v. Cooper, 
 57 How. Pr. 416. If the incumbent of an 
 office uses the office as a means of wrong- 
 doing, this is a good cause of removal, 
 though the acts in question are not of an 
 official nature. Ih. 
 
 2 Willc. 264; Rex v. Wilton, 2 Salk. 
 428; Rex v. Ipswich, 2 Ld. Raym. 1240; 
 Rex V. Feversham, 8 Term R. 356 ; Rex 
 
 V. Carmathen, 1 Maule & Sel. 697 ; s. p. 
 Commonwealth o. Pennsylvania Benef. 
 Institute, 2 Serg. & Rawle, 141. 
 
 a Willc. 265, 266; Grant, 245; Rex v. 
 Harris, 1 B. & Ad. 936 ; Rex ». Shrews- 
 bury, Cases Temp. Hardw. 151; 7 Mod. 
 202; Rex v. Toneboy, 2 Ld. Raym. 1275; 
 11 Mod. 75; Rex v. Grimes, 5 Burr. 2601 ; 
 Rex V. Leicester, 4 Burr. 2089. 
 
 * Rex V. Leicester, 4 Burr. 2089. 
 
 * Angell & Ames Corp. sec. 422, where 
 this opinion is expressed ; Grant, 265 ; 
 Rex V. Chalke, 1 Ld. Raym. 226. 
 
 •• Rex !i. Axbridge, Cowp. 523; see 2 
 Term R. 182 ; Grant Corp. 245. 
 
 ' Rex V. Griffiths, 3 B. & Aid. 735; 
 see Blagrave's Case, 2 Sid. 6, 49, 72 ; Rex 
 V. Rowe, 1 Show. 188 ; s. c. Carth. 199 ; 
 Grant, Coi-p. 246. If one irregularly 
 amoved for good cause be restored by 
 mandamus, he may be again amoved by 
 regular proceedings de noi-o. Taylor v. 
 Gloucester, 3 Bulst. 190 ; Rex v. Ipswich, 
 2 Ld. Ray m. 1233. In such case the office 
 is vocated from the time of the second 
 amotion; the proceedings do not relate 
 back to the former irregular amotion. 
 Willc. 269, pi. 707, 
 
278 MUNICIPAL COEPOEATIONS. [CH. IX. 
 
 the party is entitled to notice of the intention to amove, so that 
 he may have full and fair opportunity to be heard in his defence. 
 
 § 255. (193) There must be a charge, or charges, against him, 
 ipecifically stated, with substantial certainty ; yet the technical 
 nicety required in indictments is not necessary.^ And reasonable 
 time and opportunity must be given to answer the charges and to 
 produce his testimony ; and he is also entitled to be heard and 
 defended by counsel, and to cross-examine the witnesses, and to 
 excejpt to the proofs against him.^ If the charge be not denied, 
 still it must, if not admitted, be examined and proved.^ Where 
 the specific charge stated is insufficient to justify the removal, or 
 where the removal is erroneous and no good and sufficient ground 
 therefor appears, the officer is entitled to a mandamus to restore 
 him.^ But where the proceedings are in conformity with the 
 charter, and are regular, the sentence will not be inquired into 
 collaterally, nor its merits examined by mandamus or action.® 
 
 § 256. (194) If the amotion be legal and authorized, the office 
 becomes ipso facto vacant from the time the amotion is declared, 
 and another person may be elected or appointed to fill it. If the 
 
 1 Tompert v. Lithgovr, 1 Bush (Ky.), the same situation that he was before the 
 
 176, 1866 ; Kex v. Lyme Regis, Doug, attempted removal. Willc. 269 ; post, sec. 
 
 179; Bagg's Case, 11 Co. 99a,- 8. c. 1 847. Since there is an adequate remedy 
 
 Roll. 225 ; Glover, 334 ; Willc. 267. at law by guo warranto {post, oh. xxl.) 
 
 ^ State V. Bryce, 7 Ohio, part II. p. or by mandamus to restore (post, see. 
 414, 1836; Rex v. Richardson, 1 Burr. 847), equity will not enjoin the corporate 
 540 ; Rex v. Liverpool, 2 Burr. 734 ; Mur- authorities from making an unlawful re- 
 dock 0. Academy, 12 Pick. (Mass.) 244 ; moval or appointing a successor. Delar 
 where the requisites of a valid proceeding hanty ». Warner, 75 111. 185, 1874; s. o. 
 to amove are stated. Rex v. Chalke, 1 20 Am, Rep. 237. 
 
 Ld. Raym. 226; Rex v. Derby, Cas. ^ Society, etc. ». Commonwealth, 52 
 
 Temp. Hardw. 154. Pa. St. 125, 1866 ; People v. Bearfield, 35 
 
 » Eex V. Feversham, 8 Term R. 856; Barb. (N. Y.) 254. Though the amotion 
 
 Harman v. Tappenden, 1 East, 562; Willc. be illegal, the officers who took part in it 
 
 267 ; Glover, 334 ; Murdoek v. Academy, are not personally liable, unless both malice 
 
 12 Pick. (Mass.) 244. A municipal offi- and want of probable cause be shown, 
 
 cer, when removed by the corporation Harmen v. Tappenden, 3 Espin. 278 ; s. c. 
 
 appointing him, is entitled to actual notice 1 East, 555 ; Ferguson v. Earl of Kinnoul, 
 
 of his removal, and to compensation until CI. & F. 289. 
 
 he receives such notice. Jarvis v. Mayor, Jurisdiction as to the election and amotion 
 
 etc. of New York, 2 N. Y. Leg. Obs. 396. of officers in corporations, when not 
 
 * Rex V. Ipswich, 2 Ld. Raym. 1240; changed by statute, belongs to the com- 
 
 Madison ». Korbly, 32 Ind. 74, 1869 ; Com- mon law courts and not to equity. At- 
 
 monwealth v. German Society, 15 Pa. St. torney General v. Earl Clarendon, 17 Ves. 
 
 251, 1850 ; State v. Jersey City, 1 Dutch. 491 ; Dyer, 332 ; Cochran v. McCleary, 22 
 
 (K. J.) 536. The restoration puts him in Iowa, 75; ante, sec. 202; post, sec. 27& 
 
§ 256.] 
 
 AMOTION AND DISFKANCHISEMENT. 
 
 279 
 
 removed officer afterward continues to act, he is a mere usurper, 
 and may be ousted on quo warranto and punished. Amotion 
 from one office does not, of course, affect the party's title to 
 another.^ 
 
 1 Jay's Case, 1 Vent. 302 ; Symmers o. 
 Eegem, Cowp. 503; Willc. 2B8, pi. 704; 
 Rex V. Doncaster, 2 Ld. Raym. 1666; 1 
 Barnard. 265; Rex v. Chalke, 1 Ld. Raym. 
 226. Mr. WiUoock, 207, pi. 704, whose 
 language is adopted by Glover (Corp. 
 334), states that if a person legally 
 amoved continues to act, he is a mere 
 usurper, and that " all corporate acts in 
 which lie has concurred are equally void, 
 as though he had never been elected or 
 admitted." But if he is permitted to act 
 after amotion, it would probably be con- 
 sidered, in this country, that his acts would, 
 as to third persons, be valid, like those of 
 an officer de facto. If the removal be un- 
 
 authorized, Mr. Willcock states the rule 
 to be, " That all corporate acts in which 
 he has concurred between the moment of 
 his removal and restitution are of equal 
 validity as if he had never been amoved," 
 etc. Willc. 269, pi. 707. If he was regu- 
 larly present and concurred, it can well 
 be seen how this sliould be so ; but his 
 concurrence when not regularly acting, 
 or when a de facto successor has taken his 
 place and is acting, would not seem to 
 alter the legal quality of the act. In this 
 country the acts of de facto officers are 
 everywhere considered valid as respects 
 the public. Post, sees. 276, 892, note; 
 Cushing V. Frankfort, 67 Me. 641. 
 
280 MUNICIPAL COKPOKATIONS. [CS. yL. 
 
 CHAPTER X. 
 
 CORPORATE MEETINGS. 
 
 § 257, (195) The subject of Corporate Meetings will be con- 
 sidered under the following general heads : — 
 
 1. Common Law Requisites of a Valid Corporate Meeting — 
 sees. 258-261. 
 
 2. Notice of Corporate Meetings at Common Law and under 
 the English Municipal Corporations Act — sees. 262-265. 
 
 3. New England Town Meetings ; Requisites of Notice and 
 Power of Adjournment — sees. 266-269. 
 
 4. Constitution and Meetings of Councils, or of Select Gov- 
 erning Bodies, and herein of Quorums and Majorities ; Of Inte- 
 gral Parts ; and of Stated, Special, and Adjourned Meetings — 
 sees. 270-287. 
 
 5. Mode of Proceeding when convened — sees. 288-292. 
 
 Common Law Requisites of a Valid Corporate Meeting. 
 
 § 258. (196) As respects their mode of action, municipal cor- 
 porations in this country are of two general classes. In the one, 
 as in the organization of towns in the New England states, here- 
 tofore adverted to, all of the qualified inhabitants meet, act, and 
 vote, in person.^ In the other, which is the kind that prevails 
 generally throughout the states, and even in many of the larger 
 places in New England, the affairs of the town or city are ad- 
 ministered by a select or representative body, usually denominated 
 the council, and which is elected by the qualified voters of the 
 incorporated place, not assembled together in a meeting, but at 
 an election, where each elector votes separately and by ballot.^ 
 
 § 259. (197) The latter class of corporations is properly 
 municipal. The former class is not so strictly municipal as it 
 
 1 Ante, ch. ii. sect 28. 
 
 ' Ante, ch. ii. sec. 28, et seq.; ante, ch. ir. 
 
§ 260.] CORPORATE MEETINGS. 281 
 
 is public in its character.^ Where there is a counoil or govern- 
 ing body, the inha,bitaiits or voters, in their natural capacity, have 
 no power to act for or bind the corporation, but the corporation 
 must act, and can be bound only through the medium of this 
 body. Therefore, authorized acts done by the council are not 
 their acts, but those of the corporation. The council is a body 
 which is constantly changing; it is simply the agent of the cor- 
 poration. But its members, it has been well observed, are not 
 only not the municipal corporation, but are not even a corpora- 
 tion.*^ Whether the corporation be of the one class or the other, 
 its affairs must be transacted at a corporate meeting, in the one 
 case of the qualified inhabitants, and in the other of the members 
 of the council or governing body, duly convened at the proper 
 time and place, and upon due notice in cases where notice is 
 requisite.^ 
 
 § 260. (198) In England, prior to the General Municipal Cor- 
 porations Act of 1835,* the requisites of a valid corporate meeting 
 depended upon the constitution of the particular corporation 
 under its charter or prescriptive usage. To constitute a corporate 
 assembly there must at common law be present the mayor or other 
 head-ofScer (he being considered an integral part of the corpora- 
 tion,° in whose absence no valid corporate act could be done), a 
 majority of the members of each select or definite class (these 
 classes being also considered integral parts), and some members of 
 the indefinite body (indefinite in point of numbers) usually styled 
 the commonalty, and of each of the indefinite classes if there be 
 more than one.® If there be no indefinite class, and the gov- 
 erning body consist of a select or definite class, the common 
 law requisite of a valid corporate assembly is, that a majority of 
 the select class must be present ; and if there be more than one 
 such class, then a majority of each of the select classes of which 
 
 1 Ante, ch. 1, sec. 9 ; ante, ch. ii. sees, mayor, see ante, ch. ix. relating to Muni- 
 22, 25, andinote. cipal Elections and Officers, sec. 208. 
 
 2 Reginaw.Paramore,10Ad.&E1.286; e willc. 52, 53, 66; Rex r. Atkyns, 8 
 see Regina v. York, 2 Queen's B. 850 ; Mod. 23 ; 1 Rol. Ab. 514 ; Rex v. Carter, 
 Mayor v. Simpson, 8 Queen's B. 73 ; ante, Cowp. 59 ; Kex v. Smart, 4 Burr. 2143 ; 
 Bee. 39. Rex w. Gaborian, 11 East, 87, note; Kex 
 
 8 Dey V. Jersey City, 19 N. J. Eq. 412, v. Morris, 4 East, 26 ; Rex v. Bellringer, 
 
 1869; Baltimore v. Poultney, 25 Md. 18, 4 Term R. 823; Rex v. Miller, 6 lb. 278; 
 
 1866". Rex V. Varls, Cowp. 250; Rex v. Monday, 
 
 * Ante, ch. iii. sec. 35, et seq. lb. 539. 
 
 ' Ante, ch. iii. sec. 35. Further as to 
 
282 MUNICIPAL CORPORATIONS. [CH. X. 
 
 the corporation is constituted ; and the presence of the mayor at 
 a select assembly of this kind is not necessary, unless it is ex- 
 pressly required.^ But where a common council exists (which, in 
 contemplation of the ancient law, is a meeting of the body at 
 large, or those of them who thought proper to attend, or were 
 considered by their fellow freemen the men best fitted to attend), 
 though such council has become a select or definite class, there 
 the presence of the mayor or head presiding officer is necessary 
 to a valid assembly, though such presence be not required by the 
 charter.2 
 
 § 261. (199) A majority of each definite part means a majority 
 of the number of members of which that part consists, not merely 
 a majority of the existing members of the part ; but if the act is 
 to be done by an indefinite body alone, it is valid if done at a 
 meeting duly convened, although but a small fraction of the whole 
 body at large be present. But while the presence of a majority 
 of each definite integral part was necessary to a valid corporate 
 meeting, yet it is settled law that a majority of those present, 
 when legally assembled, will bind the rest.^ Not only did the 
 law of the old corporations in England require the presence of a 
 majority of the members of each definite integral part, but it 
 went to the extreme length of holding that where the presence 
 of the mayor was necessary, he must be the legal mayor, and if he 
 be merely an officer de facto, and afterwards be ousted on quo 
 warranto, all corporate acts done under the sanction of his office 
 are voidable.* By reason of the change in the constitution of 
 
 1 See authorities cited in the last note. Huggins, Harper (South Car.), 94, 1824; 
 * Wille. 67. Baker v. Young, 12 Gratt. (Va.) 303, 
 ' Eex V. BeUringer, 4 Term R. 810, 1856, approving Willc. 216, pi. 546 ; La- 
 1792, and cases cited ; Bex v. Miller, 6 lb. bourdette v. Municipality, 2 La. An. 527, 
 268; Eex ■/. Monday, Cowp. 531, 538; 1847; Kingsbury ». School District, 21 
 Eex V. Devonshire, 1 Barn. & Cress. 609; Met. (Mass.) 99, 1846; Damon v. Granby, 
 Eex ». Bower, lb. 492 ; Rex v. May, 4 B. 2 Pick. (Mass.) 845, 355, 1824; Coles v. 
 & Ad. 843 ; Rex v. Headley, 7 Barn. & Trustees, etc. of Williamsburg, 10 Wend. 
 Cress. 496 ; Willc. 216, pi. 546; Blacket v. (N. Y.) 658, 1833 ; Rex v. Greet, 8 B. & 
 Blizard, 9 Barn. &, Cress. 851 ; Rogers, in C. 363 ; The Queen ex rel. Hyde v. Barn- 
 re, 7 Covr. (N. Y.) 626, 1827 ; lb. note a, hart, 7 Upper Can. L. J. ; The Queen ex 
 764; Willcocks, in re, 7 Cow. (N. Y.) 402, rel. Heenan v. Murray, 1 Upper Can. L. 
 and note 462, 463, 1827 ; Young v. Buck- J. N. S. 104; 2 Kent Com. 293 ; Angell & 
 ingham, 5 Ohio, 485, 489, 1832; Buell v. Ames Corp. sec. 501. 
 Buckingham, 16 Iowa, 284, 1864, and * Rex v. Carter, Cowp. 59; Rex v. 
 cases cited ; State v. Deliesseline, 1 Mc- Hebden, Anstr. 391 ; Rex v. Dawes, 4 
 Cord (South Car.), 52, 1821; State v. Burr. 2279; Willc. 64, 65. 
 
§ 263.] NOTICE OF CORPORATE MEETINGS. 283 
 
 municipal corporations in England, wrought by the Corporations 
 Act of 1835, many of the rules respecting corporate meetings are 
 no longer applicable, though, as we shall see, some of them still 
 are. Under that statute the corporation acts, and can only act, 
 through the council ; and it is provided that all questions shall 
 be decided by a majority of all the councillors present, including 
 questions of adjournment ; that one third part of the number of 
 the whole council shall be a quorum ; that the mayor, if present, 
 .shall preside, and if absent, that a presiding officer shall be chosen, 
 who shall have a second or casting vote.^ 
 
 Notice of Corporate Meetings at Common Law, and under the 
 English Municipal Corporations Act, 
 
 § 262. (200) Due notice of the time and place of a corporate 
 meeting is, by the English law, essential to its validity, or its 
 power to do any act which shall bind the corporation. Respect- 
 ing notice, the courts in England adopted certain rules, which, 
 since they form the basis of much of the statute law in this 
 country upon the subject, and have, in the main been followed 
 by our courts, and are founded on reason, may advantageously 
 be here mentioned. All corporators are presumed to know of 
 the days appointed by the charter, statute, usage, or by-laws, for 
 the transaction of particular business, and hence no notice of 
 such meeting for the transaction of such business is necessary, 
 or for the transaction of the mere ordinary affairs of the corpora- 
 tion on such days ; yet if it is intended to proceed to any other 
 act of importance, a notice is necessary, the same as at any other 
 time. 
 
 § 263. (201) A notice, when necessary, must, if practicable, 
 be given to every member who has a right to vote, where the act 
 is one to be done by a body consisting of a definite class or classes, 
 and it must be given by, or issued hy order of, some one who has 
 the authority to convene a corporate meeting. But notice may 
 be altogether dispensed with or its necessity waived, by the pres- 
 ence and consent of every one of those entitled to it. It must be 
 served personally upon every resident member, or left at his house. 
 
 1 5 and 6 Will. IV. ch. Ixxri. sec. 69; Rawlinson on Corp. (5th ed.) 136; ante, 
 ch. iii. sees. 35, 37. 
 
284 MUNICIPAL CORPORATIONS. [CH. X. 
 
 If temporarily absent, it may be left with his family, or at his 
 house or last place of abode. An order to serve all is not suffi- 
 cient ; all, if practicable, must be served, but if the party entitled 
 to notice has entirely quit the municipality, and has no family or 
 house within its limits, notice is not necessary. It must be served 
 a reasonable time before the hour of meeting, of which the court 
 will judge from all the circumstances, including usage. 
 
 § 264. (202) The notice must state the time of meeting, and 
 the place, if it be not the usual place. It is not necessary to state 
 what business is to be done when the meeting relates only to the 
 ordinary affairs of the corporation ; but when it is for the purpose 
 of electing or removing officers, passing ordinances, and the like, 
 the fact should be stated, so that members may know that some- 
 thing more than the usual routine of business will be transacted. 
 Such great importance is attached to notice that it can only be 
 waived by universal consent ; but if every member of a select 
 body be present at a regular or stated meeting or at a special 
 meeting, they may, if every one consents, but not otherwise, 
 transact any business, ordinary or extraordinary, though no 
 notice was given, or an insufficient notice, but the unanimity of 
 consent should plainly appear from their recorded declaration, 
 acts, or conduct. This unanimity is only necessary to enter upon 
 the business ; once commenced, the usual rules which govern the 
 body and its actions apply. It is to be observed that the fore- 
 going rules are not applicable where they are in conflict with the 
 charter, and hence, if this requires a special notice, it cannot be 
 waived, even by consent of all. The guild hall is the proper place 
 for the meeting ; if there be none, the meeting should be at the 
 usual place ; and if at any other place, it should be stated, to 
 prevent fraud or surprise. Acts done at an unusual place will 
 be closely scrutinized.^ 
 
 1 Authorities in support of the last and 1359; Rex v. Mayor of Shrewsbury, 
 
 two preceding sections of the text : Willc. Cases Temp. Hardw. 147 ; Smith v. Dar- 
 
 ch. 1. sec. 42, et seq. Rex v. Hill, 4 B. & ley, 2 House of Lords Cases, 789; Grant 
 
 C. 441; Rex v. Liverpool, 2 Burr. 734; on Corp. 154-156; Glover on Corp. 
 
 Rex V. Doncaster, lb. 744 ; Rex v. Theo- ch. viii. pp. 146 - 173. Formerly the 
 
 dorick, 8 East, 545 ; Rex v. May, 5 Burr, rule that where notice was necessary 
 
 &682; Rex v. Oxford, Palm. 453; Rex every member must be notified, was 
 
 V. Grimes, 5 Burr. 2601; Kynaston v. applied only to the case of definite 
 
 Shrewsbury, 2 Stra. 1051 ; Musgrove v. bodies, but it has more recently been de- 
 
 Nevison, 1 Stra. 584; s. c. 2 Ld. Raym'. clared to be applicable to both select and 
 
§ 266.] NEW ENGLAND TOWN MEETINGS. 285 
 
 § 265. (203) By the English Municipal Corporations Act,i 
 the subject of meetings, stated and special, and the notice and 
 summons required are made matter of express regulation. It 
 provides for every borough or city four quarterly meetings of the 
 council in each year, to be held at a fixed date. No notice of the 
 business to he transacted at these quarterly meetings is necessary ; 
 but three days' notice, by posting on or near the town hall, is 
 required of the time and place of every intended meeting. 
 Power is given to the mayor to call special meetings, or, on his 
 refusal, to five members of the council, in which case the notice 
 on or near the town hall shall state therein the business proposed 
 to be transacted at such meeting, and in every case a summons, 
 (in addition to the notice) must be left at the usual place of 
 abode of every member of the council, or at the premises occu- 
 pied by him, in respect of which he is enrolled as a burgess, at 
 least three clear days before the meeting, and no business can be 
 transacted not specified in the summons. Power to adjourn 
 meetings is expressly conferred upon the council by the same 
 section.2 
 
 New England Town Meetings — Notice and Adjournment, 
 
 § 266. (204) In New England the inhabitants are required to 
 be notified or warned of town meetings. The requisites of such 
 notice, and manner of giving it, are prescribed by statute. The 
 provision is quite general that the articles or matters to be acted 
 upon shall be specified or inserted in the notice or warrant. The 
 courts in those states concur in requiring the statute as to notice 
 to be faithfully obsei-ved by the officers charged with the duty of 
 calling meetings. Meetings, to be valid, must be warned or 
 notified according to law. The rule of the English courts applied 
 to indefinite corporate bodies, that if all are present notice may, 
 
 indefinite bodies of public corporations, or regular quarterly meeting, but not 
 
 Rex V. Langhorne, 4 Ad. & El. 538. See, otherwise ; and lience, a coroner cannot 
 
 also, Eex v. Feversham, 8 Term R. 356, be elected at such an adjourned quarterly 
 
 per Ld. Kenyon, arguendo. meeting without the notice and summons 
 
 1 5 and 6 Will. IV. ch. Ixxvi. sec. 69 ; which the statute requires. Regina v. 
 ante, sees. 35, 87. Grimshaw, 10 Queen's Bench, 747, 755. 
 
 2 In construing this statute, it has See Regina v. Thomas, 8 Ad. & El. 183; 
 been held that where the meeting is an Rex v. Harris, 1 B. & Ad. 936. As to 
 adjourned quarterly meeting, notice is notice. Town Council, etc. o. Court, 1 
 necessary as to any business which was E. & E. 770 ; Regina v. Whipp, 4 Queen'« 
 not actually entered upon at the general , Bench, 141. 
 
286 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. X. 
 
 by unanimous consent, be waived,^ is not regarded as applicable 
 to the town meetings of New England, and hence a de facto meet- 
 ing, not duly notified, though attended by all the voters capable 
 of attending, is not a valid meeting, and its acts are void.^ 
 
 ' Rex !'. Theodorick, 8 East, 545; ante, 
 Bee. 28. 
 
 2 Hayward v. School District, 2 Cush. 
 (Mass.) 419, 1848; Moor v. Newfield, 4 
 Greenl. (Me.) 44, 1826 ; School District v. 
 Atherton, 12 Met. (Mass.) 105, 1846; Lit- 
 tle V. Merrill, 10 Pick. (Mass.) 543; Perry 
 V. Dover, 12 Pick. (Mass.) 206; Reynold 
 V. New Salem, 6 Met. (Mass.) 340; Con- 
 gregational Society v. Sperry, 10 Conn. 
 200; Rand v. Wilder, 11 Cush. (Mass.) 
 294, 1853; Stone v. School District, 8 
 Cush. (Mass.) 592; Brewster v. Hyde, 7 
 N. H. 206; North wood v. Barrington, 9 
 N. H. 369; Giles v. School District, 11 
 Fost. (31 N. H.) 804; Lander v. School 
 District, 33 Me. 239, 1851; Jordan u. 
 School District, 38 Me. 164, 1854. So in 
 Vermont it has been decided that it can- 
 not be shown, by parol, to validate the 
 kmi of tax by a meeting not legally 
 warned, that all of the legal ixiters of the dis- 
 trict were present at tlie meeting. Sher- 
 win V. Bugbee, 17 Vt. 337, 1845 ; distin- 
 guished by the court from Rex v. 
 Theodorick, 8 East, 543. And see, also. 
 Hunt V. School District, 14 Vt. 300; 
 Pratt ». Swanton, 15 Vt. l47. Requisites 
 of notice and sufficienicy. Wyley v. Wilson, 
 44 Vt. 404, 1872. Under the legislation 
 of Connecticut, although it is held that the 
 right to call a borough meeting for any 
 lawful purpose is a legal right of every 
 freeman, yet as it was shared with all 
 other freemen it can be enforced only by 
 a proceeding in the name of the state. 
 Peck V. Booth, 42 Conn. 271, 1875. But 
 see post, sees. 865, 900, 921, 923, n. A lax 
 voted at a meeting not legally warned is 
 illegal, and may be recovered back if the 
 party did not pay it voluntarily. Hideout 
 V. School District, 1 Allen (Mass.), 232, 
 1861. So it may be recovered back if the 
 assessment is void. Gerry v. Stoneham, 
 1 Allen (Mass.), 319, 1861; Tobey v. 
 Wareham, 2 Allen (Mass.), 594; post, 
 ch. xxiii. See Massachusetts act of 1859, 
 ch. cxviii, limiting, in such cases, the 
 plaintiff's right of recovery to illegal ex- 
 cess of taxation. 
 
 Authoritji to the clerk to call and warn 
 " the annual meetings," does not author- 
 ize him to call and warn special meetings ; 
 and the acts and doings of a special meet- 
 ing thus called are wholly void. School 
 Dis^ict V. Atherton, 12 Met. (Mass.) 105, 
 1846. . And authority " to warn " future 
 meetings does not authorize him " to 
 call" such meetings. Stone v. School 
 District, 8 Cush. (Mass.) 592, 1851. 
 
 As to proof of notice, and the return of 
 the person or officer making the warning, 
 and what it shall show, see State v. 
 Williams, 25 Me. 564, 1846, and the Mas- 
 sachusetts and Maine decisions therein cited 
 and commented on. Christ's Church v. 
 Woodward, 21 Me. (7 Shep.) 172, 1846 ; 
 Fossett V. Bearce, 29 Me. 523, 1849 ; Bearce 
 V. Fossett, 34 Me. 575, 1852; Jordan a. 
 School District, 38 Me. 164, 1854 ; Perry 
 V. Dover, 12 Pick. 206; Houghton v. 
 Davenport, 28 Pick. 235; Williams v. 
 Lunenberg, 21 Pick. 75 ; Briggs v. Mur- 
 dock, 13 Pick. 305 ; Rand v. Wilder, 11 
 Cush. (Mass.) 294, 1853; Cardigan v. 
 Page, 6 N. H. 182 ; State v. Donahay, 1 
 Vroom (30 N. J. L.), 404; Hardcastle v. 
 The State, 3 Dutch. (N. J.) 352; Detroit 
 V. R. R. Co., 39 Ind. 598 ; McPike v. Parr, 
 51 Mo. 63 ; French v. Edwards, 13 Wall. 
 511. In Sherwin v. Bugbee, 17 Vt. 337, 
 the strict view is held that the notice or 
 warning must be recorded by the clerk. If, 
 as recorded, the time for which the meet- 
 ing was to be holden is not specified, the 
 defect cannot be supplied by parol evi- 
 dence that in the original warning the 
 hour for the meeting was named. This 
 decision was not put upon the ground 
 that the statute expressly required the 
 warning to be recorded (which it did not), 
 but upon the ground that the statute in- 
 tended that the records should furnish all 
 the means for testing the validity of the 
 proceedings. See, also, Stevens v. Society^ 
 etc., 12 Vt. 688, 1839; post, sec. 309. 
 Where the place of an annual meeting is 
 not fixed by statute or charter, notice of 
 the meeting and place is essential. United 
 States V. McKilden, 8 Rep. Dec. 1879, p. 
 
§ 268.] 
 
 NEW ENGLAJ5D TOWN MEETINGS. 
 
 287 
 
 § 267. (205) It is, however, sufficient if the purpose or object 
 of the meeting ean fairly be understood from the notice or 
 warrant.^ And where the statute requires the time and place to 
 be stated in the notice, its requirements must be observed, and 
 there can be no legal meeting unless it originally assembles at 
 the prescribed time and place. The law is strictly held as to 
 the important particulars of time and place, as will appear by 
 the illustrations in the notes.- 
 
 § 268. (206) Where the statute requires the notice " to 
 specify the business to be done^' an omission to comply with this 
 
 778; 3 McArthur. Presumption in fa- 
 vor of legality of meeting after lapse of 
 long time. Peterborough v. Lancaster, 
 14 N. H. 382, 392. Length of notice. 
 Hunt ». School District, 14 Vt. 300 ; Pratt 
 V. Swanton, 15 Jb. 247 ; ■post, sec. 285, 
 note. 
 
 Under a statute of New York, the 
 notice it required of school meetings held 
 to be directory only, and the want of no- 
 tice, when not fraudulently or wilfully 
 omitted, does not render the meeting in- 
 valid, and its proceedings void. Mar- 
 chant V. Langworthy, 6 Hill (N. Y.), 646; 
 affirmed in error, 3 Denio (N. Y.), 526. 
 See, also, Williams v. Larkin, 3 Denio, 
 114; post, sec. 290. Where the charter 
 required the clerk to publish a notice re- 
 quiring all persons interested in and op- 
 posed to a local improvement to attend 
 before the council at a day named, and 
 such notice was given and a hearing had, 
 it was held that since the charter pro- 
 vided for but one notice and one hearing, it 
 was a matter of discretion with the coun- 
 cil whether another hearing should be al- 
 lowed, and that subsequent action by the 
 council without such notice or second 
 hearing was not, under the circumstances, 
 invalid. Locke v. Rochester, 5 Lansing 
 (N. Y.), 11, 1871; ro<!l> sees. 803, 804, 
 927, n. 
 
 1 School District ». Blakeslee, 13 Conn. 
 227. 
 
 2 Sherwin t>. Bugbee, 16 Vt. 439, 444, 
 1844. In reference to town meetings, tlie 
 statute of Vermont requires that the notice 
 shall be in writing, and shall " specify the 
 business to be. done, and the time and 
 place of holding said meeting." Referring 
 to this statute, Redfield, J. (in Sherwin v. 
 Bugbee, supra), says : " We have no 
 
 doubt the place of holding the meeting 
 must be definitely specified. It would 
 hardly do to warn a meeting to be held 
 at some place in the district, or at a desig- 
 nated village, or at one of two or more 
 dwelling-houses. So, too, in regard to 
 time, there seems to be a propriety in 
 having it definitely fixed. If the day, 
 only, is named, the question immediately 
 arises. Shall the inhabitants be required 
 to attend the whole day ■? or. When can 
 the meeting transact the business for 
 which they meet, so as to bind the absent 
 members? The fact that the meeting 
 adjourned to another day and hour will 
 not help the matter, on the obvious prin- 
 ciple that the adjourned meeting could 
 have no more authority than the original 
 meeting, which was void." 
 
 Where it appears that a meeting was 
 held on the day appointed, it will be pre- 
 sumed that it was held at a suitable time 
 in tlie day, and pursuant to the notice. A 
 meeting should be opened within a rea- 
 sonable time after the hour specified; but 
 what is such reasonable time depends 
 upon circumstances. School District v. 
 Blakeslee, 13 Conn. 227. Where a meet- 
 ing was called at a certain school-house, 
 it was held to mean within the walls of 
 the building. An assemblage of some of 
 the citizens in the highway near the school- 
 house, and an adjournment to another 
 place, is not a legal meeting, and its 
 transactions are not binding, though the 
 school house was locked, and the weather 
 cold and no fire in the building. Cham- 
 berlain V. Dover, 13 Me. 466, 1836. See, 
 also, Haines v. School District, 41 Me. 
 246, 1856 ; Kingsbury v. School District, 
 12 Met. 99, 1846. 
 
288 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. X. 
 
 requirement makes the meeting void, and it is held that a notice 
 stating generally " to do any proper business," is insufficient, and 
 the acts and votes of a meeting held under it are of no binding 
 or legal force.^ Indeed, the rule is general that where the 
 statute requires the business to be stated in the warrant or 
 notice, this is absolutely essential, and the meeting must be 
 confined to those matters.^ 
 
 § 269. (207) At a meeting duljt constituted and organized, a 
 majority of the members, electors, or corporators present, in 
 the absence of any statute either conferring or denying the 
 power, have the implied incidental corporate right to adjourn the 
 meeting to another time, either on the same or to a future day, 
 and, if fairly done, to another place within the corporate limits.^ 
 
 1 Hunt V. School District, 14 Vt. 300, 
 1842 ; Sherwin v. Bugbee, 16 Vt. 439 ; 
 8. c. 17 lb. 337, 444, 1844. " Such meet- 
 ings are void for all purposes of transact- 
 ing business not specified " in the written 
 notice required by the statute, lb. per 
 Bedfidd, 3. 
 
 2 lb. Johnson v. Wilson, 2 N. H. 202 ; 
 Tucker v. Aiken, 7 N. H. 113 ; Baker v. 
 Shepherd, 4 Fost. (24 N. H.) 208. 
 
 By-/auis passed .at a town meeting not 
 duly warned (as, for example, where the 
 notice did not " specify the objects " of 
 the meeting as required by statute) are 
 void. Hayden v. Noyes, 5 Conn. 391, 
 1824 ; Willard v. Killingworth, 8 lb. 247. 
 The party claiming under a by-law must 
 show it was passed at a meeting duly 
 warned. 8 Conn. 247, supra. And must, 
 perhaps, show all the essentials of its 
 validity, such as the due passage, publi- 
 cation, etc. lb. 
 
 Where the statute requires that all 
 matters to be acted upon at the meeting 
 shall be inserted in the warrant or notice, 
 a failure to do this will avoid as to both 
 parties any contract that may be made, 
 or any act that may be done, with respect 
 to a matter not embraced in the war- 
 rant or notice. Cornish v. Pease, 18 Me. 
 (6 Shep.) 184, 1841 ; Spear v. Robinson, 
 29 Me. (14 Shep.) 531, 1849; Little v. 
 Merrill, 10 Pick. (Mass.) 543; Blackburn 
 V. Walpole, 9 Pick. (Mass.) 97 ; Torrey v. 
 Millbury, 21 Pick. (Mass.) 64; lb. 75; 
 Hasdell v. Hancock, 3 Gray (Mass.), 526; 
 
 Jones V. Andover, 9 Pick. (Mass.) 146, 
 1829; Kingsbury v. School District, 12 
 Met. (Mass.) 99, 1846; Rand v. Wilder 
 11 Cush. (Mass.) 294, 1853. But if the 
 matter is embraced, and the meeting duly 
 met, it is no objection to its action that it 
 was had near the close of the meeting, 
 and when a portion of the voters had re- 
 tired. Dean v. Jay, 23 Me. (9 Shep.) 
 117, 1843. Subsequent legal meeting may 
 ratify acts of previous meeting not duly 
 notified. Jordan v. School District, 38 
 Me. 164. By participating in a. meeting 
 illegally called, a party is not estopped 
 to deny its legality. School District v. 
 Atherton, 12 Met. (Mass.) 105. 
 
 ' Chamberlain v. Dover, 13 Me. (1 
 Shep.) 466, 1836; People v. Martin, 
 1 Seld. (5 N. Y.) 22, 1851; Hubbard v. 
 Winsor, 15 Mich. 146; Kimball «. Mar- 
 shall, 44 N. H. 465, 1863; Goodell u. 
 Baker, 8 Cowen (N. Y.), 286. Electors 
 exclusive judges of necessity of adjourn- 
 ment of town meeting, afad such adjourn- 
 ment to next day, and at another place, 
 in the town twenty miles distant, was con- 
 sidered lawful. Ih. The statute provided 
 that if at any annual town meeting no 
 place is fixed by the electors for the next 
 annual town meeting, such town meeting 
 shall be held at the place of the last an- 
 nual town meeting. 1 R. Sts. N. Y. 340, 
 sec. 3. Held, in People ». Martin, 1 Seld. 
 (5 N. Y.) 22, that though the place of 
 meeting was thus contingently fixed by 
 ilatale, the electors, being duly assembled, 
 
§ 270.] 
 
 CONSTITUTION OF COUNCILS. 
 
 289 
 
 Constitution and Meetings of Councils or Select Q-overning Bodies ; 
 and herein of Quorums and Majorities, of Integral Parts, and 
 of Stated, Special, and Adjourned Meetings. 
 
 § 270. (208) Unlike the towns of New England, in which all 
 the qualified voters meet and act in their primary capacity, the 
 councils of cities and towns are representative bodies, the num- 
 ber of whose members is fixed by law, and they are elected by 
 the legal voters of the incorporate place. This council is the 
 governing body of the municipal corporation, and the corporation, 
 unless it is otherwise provided, can act and be bound only 
 through the medium of the council.^ The charter or constituent 
 act of the place usually contains provisions as to the constitu- 
 tion of the council, its stated and special meetings, and the 
 notice thereof requisite to be given, how many shall constitute a 
 quorum, and an enumeration of its powers. The usual scheme 
 of the organization of the council is to divide the territory of the 
 incorporated place into districts or wards, the voters in each of 
 which elect one or more representatives annually, called alder- 
 
 might adjourn it for tlie residue of the day 
 to another place in the town. Concluding 
 his opinion in this case, Paige, J., well 
 remarks: "I confess that I hare had 
 some difficulty in coming to this conclu- 
 sion, and I think the power [which is 
 decided to exist] of adjourning a town 
 meeting to another time and place may, 
 under peculiar circumstances, be oppres- 
 sively exercised, and lead to a defeat of 
 the popular will._ This power ought not 
 to be exercised except in a case of ex- 
 treme necessity." People v. Martin, 1 Seld. 
 (5 N. Y.) 27. 
 
 After a valid adjournment, acts by a 
 portion of the voters who remain are 
 invalid. Kimball t. Lamprey, 19 N. H. 
 215. In Massachusetts, an adjournment of 
 a meeting should appear of record, and 
 parol evidence of an adjournment to an- 
 other day is held to be inadmissible. 
 Taylor v. Henry, 2 Pick. (Mass.) 397, 
 1824. See State v. Jersey City, 1 Dutch. 
 (N. J.) 809, and chapter on Corporate 
 Records and Documents, post, sec. 298. 
 An adjourned meeting of a meeting not 
 legally called cannot validate the former 
 meeting nor itself legally act. United 
 States V. McKelden, Vol. VIII. Rep. 1778, 
 
 VOL. I. 19 
 
 3 McArthur. The statute of New York 
 (1 R. Sts. 342) only requires the town 
 meeting to be kept open during the day- 
 time, or some part thereof, but not that 
 it shall be kept open during the whole 
 and every part of the day, between the 
 rising and setting of the sun. People v. 
 Martin, 1 Seld. (6 N. Y.) 22, 1851. 
 
 1 Central Bridge Corp. v. Lowell, 15 
 Gray (Mass.), 106, 116, 1860, where an 
 act afiecting a city was, by its terms, to 
 take effect on acceptance by the city, it 
 was held that the acceptance might be 
 made by the governing body. lb. The 
 legislative and corporate powers of a 
 municipality, whose exercise is, by the 
 charter or constituent act, committed to 
 the council or governing body, can be 
 exercised only at a corporate meeting 
 duly held; and the corporate will must 
 be ascertained by vote and embodied in 
 a definite form. The form which ,the 
 corporate will assumes is usually either 
 a resolution or ordinance, or something 
 equivalent thereto. Schumm v. Seymour, 
 9 C. E. Green (24 N. J. Eq.), 143 ; State v. 
 Jersey City, 6 Vroom (35 N. J. L.), 404. 
 See chapter on Ordinances, post, sec. 307, 
 note. 
 
290 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. X. 
 
 men or councilmen ; and these, when duly convened, constitute 
 the council, over which the mayor or head executive officer of 
 the corporation presides, sometimes constituting a member of the 
 council, and in other instances, having power to vote only when 
 there is a tie or to give a second vote in case of a tie.^ 
 
 § 271. (209) The doctrine of the English conrts as to the old 
 corporations in that country, that the mayor was an integral part 
 of the corporation, whose presence, unless otherwise provided in 
 the charter, was necessary to a ^alid corporate meeting; that, 
 during a vacancy in the office of mayor, the corporation could do 
 no valid act, unless expressly empowered, except to elect another 
 and thus complete the body ; and that the acts of the corporation 
 under the presidency of any other than a mayor de jure, were 
 voidable, has, it is believed, no application to the office of mayor 
 in the corporations of this country .^ 
 
 § 272. (210) The right of the mayor or other officer to preside 
 over the meeting of the council is a franchise, and may be tested 
 by an information in the nature of a quo warranto,^ but cannot 
 
 1 Power to preside and give casting 
 vote at meetings of a religious corpora- 
 tion construed. People v. Rector, etc., 48 
 Barb. (N. Y.) 603. 
 
 2 Infra, sec. 284. The text approved. 
 Martindale v. Palmer, 52 Ind. 411, 1876; 
 Welch V. Ste. Genevieve, 1 Dillon C. C. 
 130, 1871. And see ante, ch ix. as to 
 powers and duties of the mayor, sees. 208, 
 209. 
 
 The presiding officer of a town meet- 
 ing, with statute authority to maintain 
 order, may make a valid order, though it 
 be by parol only, for the removal of a dis- 
 orderly person who disturbs the business 
 of the meeting. Parsons v. Brainard, 17 
 Wend. (N. Y.) 522, 1837. Approval by 
 the mayor of proceedings of the council 
 may, by special requirement of charter, 
 be essential to their validity. Graham v. 
 Carondolet, 33 Mo. 262, 1862; Eepner v. 
 Commonwealth, 40 Pa. St. 124. When 
 not State v. Jersey City, 1 Vroom (30 
 N. J. L.), 93, 148 ; see Dey ». Jersey City, 
 19 N. J. Eq. 412 ; Taylor ». Palmer, 31 
 Cal. 241; Stote v. Newark, 1 Dutch. 
 (N.J.) 399; post, sec. 331, note. 
 
 ' Cochran v. McCleary, 22 Iowa, 75, 
 1867, and authorities there cited; Rey- 
 nolds V. Baldwin, 1 La. An. 162, 1846; 
 
 Rex 0. Williams, 1 Burr. 402; Willc. 456, 
 pi. 337; Rex v. Hertford, 1 Ld. Raym. 
 426; approved. Commonwealth v. Arri- 
 Bon, 15 Serg. & Kawle (Pa.), 130; ante, 
 ch. ix. sec. 208. In Cochran v. Mc- 
 Cleary, supra, it was held that the mayor, 
 in cities of the second class, organized 
 under the General Incorporation Act 
 (Rev. of Iowa, 1860, ch. U.), is not ex 
 officio a member of, nor has he any right 
 to preside over, the city council ; that the 
 council was composed exclusively of trus- 
 tees or aldermen, and elected its own 
 presiding officer. The mayor of A^eio 
 York is not a member of the common 
 council ; and the common council, having 
 the power by statute to appoint to office, 
 may exercise it without the concurrence 
 of the mayor, who has no veto power upon 
 the appointment. Achley's Case, 4 Abb. 
 Pr. Rep. 35, 1856. The burgess of a 
 borough incorporated under the Pennsyl- 
 vania General Borough Law of 1851 hag 
 no right to act as a member of the town 
 council, and cannot refuse to sign ordi- 
 nances regularly passed by the town 
 council, on the ground that he was not 
 present as a member when they were 
 adopted. Commonwealth v Eepner, 10 
 Phila. (Pa.) 510. 
 
273.] 
 
 CONSTITUTION OF COUNCILS. 
 
 291 
 
 be determined, at least ordinarily, unless by statute provision, 
 on a bill in chancery to enjoin, or in any other indirect or col- 
 lateral proceeding.^ 
 
 § 273. (211) Who shall compose the council or governing body 
 of the corporation is in all cases prescribed by the charter or in- 
 corporation act, but the language used has been such as some- 
 times to lead to controversy .^ The organic act of a city provided 
 " that the intendant of police shall have a seat in the board of 
 commissioners [the governing body of a city corporation], and 
 when present shall preside therein ; in his absence, the board 
 shall appoint a chairman pro tempore." It was held that the 
 intendant was thereby constituted one of the commissioners, and 
 had the right to participate in making ordinances.^ Where the 
 
 * Cochran v. McCleary, 22 Iowa, 75, 
 86, 1867 ; Topping ». Gray, 7 Hill (N. Y.), 
 259 ; affirming s. c. 9 Paige, 507 ; Markle 
 0. Wright, 13 Ind. 548 ; HuUman v. Hon- 
 comp, 6 Ohio, 287 ; People v. Cook, 4 
 Seld. 8 N. T. 67 ; affirming s. c. U Barb. 
 257 ; Mayor o. Conner, 5 Ind. 171 ; Mos- 
 ley V. Alston, 1 Phill. 790 ; Lord v. The 
 Governor, etc., 2 Phill. 740 ; Peabody v. 
 Flint, 6 Allen (Mass.), 52; Hagner v. 
 Heyberger, 7 Watts & Serg. (Pa.) 104; 
 People V. Carpenter, 24 N. Y. 86 ; People 
 V. Draper, 15 N. Y. 632; People «. Insur- 
 ance Co., 2 Johns. Ch. 371; People v. 
 Same Co. {quo ivarranto), 15 Johns. 358 ; 
 Demarest v. Wickham, Mayor, etc., 63 
 N. Y. 320, 1875 ; Commonwealth v. Bank 
 Iquo warranto), 28 Pa. St. 289 ; in chan- 
 cery, lb. 379 ; Hughes v. Parker, 20 N. H. 
 68 ; Strahl, in re, 16 Iowa, 369 ; Upde- 
 graff V. Crans, 47 Pa. St. 103 ; Facey v. 
 Fuller, 23 Mich. 527 ; see Kerr v. Trego, 
 47 Pa. St. 292, cited infra, sec. 275. 
 
 * Cochran v. McCleary, 22 Iowa, 75, 
 1867. 
 
 * Raleigh v. Sorrell, 1 Jones (North 
 Car), Law, 49, 1853. In this case the 
 Supreme Court of North Carolina admit 
 (arguendo) that an officer — as, for exam- 
 ple, the intendant — has no right, under 
 the act of incorporation, to sit with the 
 legislative body of the corporation, but if 
 he does so and acts with them, that an 
 ordinance thus passed will be void, be- 
 cause the powers given to the corporation 
 must be exercised in strict conformity to 
 
 the special delegation of authority, and 
 because, in the case supposed, the ordi- 
 nance is not passed by the body to which 
 the power is given ; citing Rex a. Croke, 
 Cowp. 26. The view of the court is in 
 accordance with the rule of the English 
 courts as applied to their corporations. 
 Thus, Mr. Willcock says : " It may be 
 unnecessary to add that whenever a par- 
 ticular business is delegated to a select 
 body, if others join in the performance of 
 it, the act is void ; as if the mayor, alder- 
 men, and commonalty join in making a 
 by-law which is directed to be made by 
 the mayor and aldermen. For if others 
 are allowed to vote, a by-law might be es- 
 tablished, although all those to whom the 
 power is specifically delegated should be 
 in the minority." Corp. 68, pi. 128 ; Parry 
 V. Berry, Comyns, 269 ; Rex v. Head, 4 
 Burr. 2521 ; Hoblyn v. Regem, 6 Bro. P. C. 
 520 ; Rex v. Westwood, 4 B. & C. 799, 
 818; Green v. Durham, 1 Burr. 131. 
 Whether the mere fact that a single 
 unauthorized person is, by a mistaken con- 
 struction of the charter, allowed to par- 
 ticipate in the transactions of a meeting of 
 the council, would, in this country, be 
 held necessarily to avoid tliem, is a ques^ 
 tion which, perhaps, remains yet to be 
 settled. It has been held, that if persons 
 who are not qualified vote at a town, 
 parish, or district meeting, without objec- 
 tion or challenge at the time, proof of that 
 fact cannot afterwards be made with a 
 view to invalidate the proceedings. Sut- 
 
292 MUNICIPAL COKPOEATIONS. [CH. X. 
 
 power to legislate for the corporation is vested in " the mayor 
 and councilmen," the council by itself cannot legislate, but must 
 act in conjunction with the mayor. In deciding the point the 
 court observes : " If a simple resolution [instead of an ordinance] 
 would be sufficient, yet, before it would have any validity, it 
 would necessarily have to be signed by the mayor as a part of 
 the law-making power: the co-ordinate action of both is re- 
 quired."^ 
 
 § 274. (212) It is undoubtedly true, as already stated, that the 
 corporate authority must be exercised hy the proper body. Thus, 
 where a town was organized under a charter which vested the 
 corporate powers of the place in a president and six trustees, 
 and subsecfuently a general incorporation act was passed which 
 was erroneously supposed to apply to the town, and under which 
 the town elected different officers from those provided in the 
 special charter, at a different time and constituting a different 
 body, it was held, in the absence of legislative ratification, that 
 this latter body could not exercise the authority of the corpora- 
 tion, since they were a body without any legal existence, and 
 were not the body authorized to act for the corporation. The 
 principle that the acts of de facto officers are valid was considered 
 not to be applicable.^ 
 
 § 275. (213) Where there are two bodies, each of which claims 
 to be the regular organized council, and is acting as such to the 
 detriment of the public, the body rightfully entitled to act may 
 have an injunction to restrain the other from interference with 
 them. To the argument that in relation to public corporations 
 the attorney general alone can file such a bill, the court replied : 
 " We do not think so. It is right for those to whom public func- 
 tions are entrusted to see that they are not usurped by others." ' 
 
 ton V. Cole, 3 Pick. (Mass.) 232, 1825. So » Kerr v. Trego, 47 Pa. St. 292, 1864, 
 
 if such a meeting is called by persons per Laarrie, C. J. Compare, however, 
 
 acting under cotar of authority, it will be Demarest ». Wickham, mayor, etc., 63 N. 
 
 legal if no exception to their authority is Y. 320, 1875. Mode of organizing coun- 
 
 taken at the time. Ih. cils to which new members are to be ad- 
 
 I Saxton V. Beach, 60 Mo. 488, 1872, mitted, and tests in case of conflicting 
 
 pet Wagner, J. Sequel of the case. Sex- councils, for determining which is the 
 
 ton V. St. Joseph, 60 Mo. 153, 1875. legal organization, Kerr v. Trego, 47 Pa. 
 
 ^ Decorah v. BuUis, 25 Iowa, 12, 1868; St. 292, supra ; sec. 204, note; sec. 272 ; 
 
 Welch ». Ste. Generiere 1 Dillon C. C. sec. 265, note. 
 130, 1871 ; infra, sec. 276 
 
§ 277.] 
 
 CONSTITUTION OF COUNCILS. 
 
 293 
 
 § 276. (214) In this country the doctrine is every wherfe de- 
 clared, that the acts of de facto officers, as distinguished from the 
 acts of mere usurpers, are valid, and the principle extends nat 
 only to municipal officers generally, but also to those composing 
 the council, or legislative or governing body of a municipal coi;- 
 poration.^ But in order that there may be a de facta officer, there 
 must be a de Jure office ; and the notion that there can be a de 
 facto office has been characterized as a political solecism, without 
 foundation in reason and without support in law; and, therefore, 
 a person cannot claim to be a de facto officer of a municipal cor- 
 poration when the corporation or people have, in law, no power, 
 in any event, to elect or appoint such an officer.^ 
 
 § 277. (215) The common law principle, that if an act is to 
 be done by an indefinite body it is valid if passed by a majority 
 of those present at a legal meeting, no matter how small a portion 
 they may constitute of the whole number entitled to be present. 
 
 1 ScoviUe V. Cleveland, 1 Ohio St. 126, 
 1853; Decorah v. BuUis, 25 Iowa, 12, 
 1868 ; Cochran v. McCIeary, 22 Iowa, 75, 
 84; Strahl, in re, 16 Iowa, 360; People v. 
 Stevens, 5 Hill (N. Y.), 616 ; State v. Ja- 
 cobs, 17 Ohio, 143; People v. Bartlett, 
 6 Wend. (N. T.) 422 ; Pritchard v. People, 
 1 Gilm. (6 111.) 529 ; People v. Runkle, 9 
 Johns. (N. T.) 147 ; Trustees, etc. v. Hill, 
 6 Cow. (N. Y.) 23; Williams v. School 
 District, 21 Pick. 75 ; see Rex v. Mayor, 
 etc., 9 Mod. Ill ; DeGrave v. Monmouth, 
 4 Car. & P. 411 ; Laver v. McGlachlin, 28 
 Wis. 364 ; post, sec. 892, note ; Cushing 
 V. Frankfort, 57 Me. 541; Lockhart v. 
 Troy, 48 Ala. 579, 1872; Riddle v. Bed- 
 ford, 7 S. & R. (Pa.) 386 ; People v. Hop- 
 son, 1 Denio (N. Y.), 574; Hamlin v. 
 Dingman, 5 Lans. (N. Y.) 61; People 
 V. Nostrand, 46 N. Y. 375; Olmsted v. 
 Dennis, 77 N. Y. 378. In a case in the 
 House of Lords, decided in 1861, it was 
 held that an act done by a definite body, 
 under authority of parliament, was not 
 invalid because officers de facto joined 
 with officers de jure in the doing of it. 
 The judges having unanimously declared 
 this to be their opinion, the Lord Chan- 
 cellor said : The opinion of the judges 
 as to vestrymen de facto and de jure was 
 of great importance. When it was con- 
 
 sidered that there were many persons who 
 were charged with very important duties, 
 and whose title to perform those duties or 
 to exercise the powers necessary for their 
 performance the public could not easily 
 ascertain at the time, and when it was 
 remembered what inconveniences would 
 arise if the validity of their acts depended 
 on the propriety of the election of the 
 persons who had to perform them, the 
 value of the clear enunciation of the prin- 
 ciple thus made by the judges was very 
 great, and in the correctness of it he 
 begged to declare his entire concurrence. 
 Scadding v. Lorant, 5 Eng. Law & Eq. 
 16, 30, per Lord Chancellor Truro. A 
 person acting in the capacity of a public 
 officer is prima facie taken to be so. Doe 
 V. Barnes, 8 Q. B. 1043 ; Regina v. Rob- 
 erts ( Crown cases reserved ), 36 Law Times 
 Rep. 690; s. c. 6 Am. Law Rep. 414; 
 ante, sec. 237, note. 
 
 ^ Decorah v. Bullis, 25 Iowa, 15, 18, 
 1868 ; Hildreth's Heirs v. Mclntire's De- 
 visees, 1 J. J. Marsh. (Ky.) 206 ; People 
 V. WJiite, 24 Wend. (N. Y.) 520, 540, 541 ; 
 Carleton v. People, 10 Mich. 250 ; Welch 
 V. Ste. Genevieve, 1 Dillon C. C. 130, 
 1871 ; sup-a, sec. 274 ; post, cb. xxi. ; pott, 
 sec. 892. 
 
294 MUNICIPAL CORPORATIONS. [CH. X. 
 
 has been deemed applicable to the towns of New England. In 
 those towns the corporate power resides, as we have seen, in the 
 inhabitants, or citizens at large, and these form the constituent 
 body. If the meeting has been duly called and warned, those 
 who assemble, though less than a majority of the whole, have the 
 power to act for and bind the whole, unless it is otherwise pro- 
 vided by law. Those who remain away are justly and conclu- 
 sively presumed to assent to what may lawfully be done by those 
 who attend.* • 
 
 § 278. (216) The common law rules as to quorums and majori- 
 ties, established with reference to corporate bodies, consisting of a 
 definite number of corporators, have also, in general, been applied 
 to the common council, or select governing body of our municipal 
 corporations, where the matter is not specially regulated by the 
 charter or statute. Thus, to use Mr. Dane's illustration, if the 
 body consists of twelve common councilmen, seven is the least 
 number that can constitute a valid meeting, though four of the 
 seven may act.^ Accordingly, a statute in reference to a definite 
 body, declaring that a " majority of those present at any regular 
 meeting shall be competent" to transact business, leaves the 
 number which may form a quorum to be determined by the com- 
 mon law ; that is, there must be at least a majority present, and 
 
 1 Damon v. Granby, 2 Pick. (Mass.) necessary to a valid election, applied, and 
 845, 355, 1824 ; Commonwealth v. Ips- was not controlled by the terms or spirit 
 wich, 2 Pick. (Mass.) 70; Williams v. of the general election law of the state. 
 Lunenburg, 21 Pick. (Mass.) 75; Church State v. Wilmington, 3 Barring. (Del.) 
 Case, 5 Robt. (N. Y.) 649, 1867; First 204,1840. ^Tarnn^ton, J., dissented, hold- 
 Parish V. Stearns, 21 Pick. (Mass.) 148, ing(and, as it would seem, with reason) 
 1888 ; State v. Binder, 88 Mo. 450, 1866. that the plurality principle had been the 
 
 At a popular election, a candidate for one " invariably adopted as most in con- 
 
 a municipal ofiSce received a pluraliti/ of sonance with our institutions in all cases 
 
 all the votes cast, but not a majority, where the law of election is silent in this 
 
 There was no provision of the charter nor respect." lb. p. 305. See First Parish 
 
 any by-law on the subject. The usage in t>. Stearns, 21 Pick. (Mass.) 148. As to 
 
 the corporation seemed to have been to municipal elections. Ante, ch. ix. 
 consider the person having the highest " 5 Dane Abr. 150 ; Willcocks, in re, 
 
 number of votes, although not a majority 7 Cow. (N. Y.), 402, 410, 1827, note d, 
 
 of the whole, as duly elected. The and criticism on the rule stated in 1 Kyd 
 
 statute in relation to state elections ex- on Corp. 418, 425; 2 Kent Com. 293; 
 
 pressly provided that "plurality, or the Buel v. Buckingham. 16 Iowa, 284, 1864; 
 
 highest nvunber of votes, should make a Begents, etc. ». Williams, 9 Gill & Johns, 
 
 choice." Under these circumstances, the (Md.) 365; Mills v. Gleason, 11 Wis. 
 
 majority of the court were of opinion that 470. 
 the common law rule, that a majority is 
 
§ 282.] CONSTITUTION OF COUNCILS. 295 
 
 such a provision, it was considered, did not authorize a minoriti/ 
 of the whole body to act.^ 
 
 § 279. (217) So, if a board of village trustees consists of five 
 members, and all, or four, are present, two can do no valid act, 
 even though the others are disqualified, by interest, from voting, 
 and therefore omit or decline to vote ; their assenting to the 
 measure voted for by the two will not make it valid. If three 
 only were present they would constitute a quorum, then the 
 votes of two, being a majority of the quorum, would be valid ;^ 
 certainly so where the three are all competent to act.® 
 
 § 280. (218) In another case, the power of amotion was con- 
 ferred upon a city council to be exercised " by a vote of two thirds 
 of that body," and this was considered to give the power of re- 
 moval to two thirds of a legal quorum. Two thirds of the whole 
 number of members composing the council were held not to be 
 required. The point was admitted to be close, and the French 
 text of the charter was relied on as favoring the conclusion 
 reached.* 
 
 § 281. (219) In a case which arose in California, the charter 
 of the city contained a provision that no ordinance should be 
 passed by the common council, except by a majority of all the 
 members elected. Eight were elected, and it was decided, under 
 the above-mentioned requirement of the charter, that an ordi- 
 nance could not be passed by a vote of four against three, since 
 four did not constitute a majority of all the members elected, 
 although it did constitute a legal quorum.^ 
 
 § 282. (220) In the absence of special provision, the major 
 part of those present, at a meeting of a select body, must concur 
 
 1 Waicocks, in re, 7 Cow. (N. Y.) 402, ^ Coles v. WilUamsburg, 10 Wend. (N. 
 
 1827 ; lb. 463 and note ; lb. 526 and note. Y.), 658, 1833. 
 
 In Iowa, " all ordinances and resolutions, ^ Buell v. Buckingham, 16 Iowa, 284, 
 or orders for the appropriation or pay- 1864, and cases cited, 
 ment of money, shall require for their * Warnock v. Lafayette, 4 La. An. 
 passage or adoption the concurrence of a 419, 1849. See, on this point, Logans- 
 majority of all the trustees of any munici- port v. Legg, 20 Ind. 315. 
 pal corporation," etc. A resolution for a ° San Francisco v. Hazen, 5 Cal. 169, 
 change of the boundaries of a city does 1855. See, also, Oakland v. Carpentier, 
 not require such majority concurrence. 13 Cal. 540 ; McCracken v. San Francisco, 
 Strohm v. Iowa City, 47 Iowa, 42. 16 Cal. 591 ; Fiemental v. San Francisco, 
 
 21 Cal. 351. 
 
296 MUNICIPAL CORPORATIONS. [CH. X. 
 
 in order to do any valid act. Therefore, when it appeared that 
 thirteen ballots were cast when the members present were only 
 entitled to give twelve votes, of which seven were for one person 
 and six for another, there is no election, and the council, though 
 it has declared that the person receiving seven votes was duly 
 elected, may subsequently rescind its action and proceed to anew 
 election.^ And in South Carolina the general rule is recognized, 
 and a majority of the board of managers of elections — having 
 power, by statute, to determine t\\^ validity of contested elec- 
 tions — is a quorum, and a majority of that quorum may act and 
 decide.^ 
 
 § 283. (221) And, as a general rule, it may be stated that not 
 only where the corporate power resides in a select body, as a city 
 council, but where it has been delegated to a committee or to 
 agents, then, in the absence of special provisions otherwise, a 
 minority of the select body, or of the committee or agents, are 
 powerless to bind the majority or do any valid act. If all the 
 members of the select body or committee, or if all of the agents are 
 assembled, or if all have been duly notified, and the minority re- 
 fuse or neglect to meet with the others, a majority of those pres- 
 ent may act, provided those present constitute a majority of the 
 whole number. In other words, in such case, a major part of the 
 whole is necessary to constitute a quorum, and a majority of 
 the quorum may act. If the major part withdraw so as to leave no 
 quorum, the power of the minority to act is, in general, considered 
 to cease.^ But where the duties are purely ministerial, and not 
 judicial, or are of such a nature as to exclude the idea of action 
 as a body or board, and where they are devolved on public officers 
 
 1 Labourdette v. Municipality, 2 La. the legislative intent, deduced from va- 
 An. 527, 1847. rious provisions of the act, to commit the 
 
 2 State V. Deliesseline, 1 McCord matter to the acting managers. 
 
 (South Car.), 52, 1821, where the subject 3 Kingsbury v. School District, 12 
 is elaborately considered by iVoft, J. ; s. Met. (Mass.) 99, 1846; Day v. Green, 4 
 p. State B. Huggins, Harper (South Car.) Cush. (Mass.) 488, 439, 1849; Fisher o. 
 Law, 94, 1824, further holding that where. School District, 4 Cush. (Mass.) 494, 
 of eighteen managers appointed by the 1849 ; Coffin j;. Nantucket, 5 Cush. ( Mass. ) 
 legislature, two refused to qualify, one 269, 1850 ; 11 Cush. 433 ; Damon v. Gran- 
 was disqualified, and one dead, the re- by, 2 Pick. (Mass.) 345,355,1824; State 
 mainirigfonrteen (fromnecessityandpub- ». Jersey City, 3 Dutch. (N. J.) 493; 
 lie convenience) properly constituted tlie Charles v. Hoboken, lb. 203; Dey ». Jer- 
 lioard, and might act by a majority of sey City, 19 N. J. Eq. 412, 1869; Balti- 
 tlie fourteen. The decision rests upon more v. Poultney, 25 Md. 18, 1866. 
 
§ 283.] 
 
 CONSTITUTION OF COUNCILS. 
 
 297 
 
 or agents rather than on the agents of corporations, the rule above 
 stated (as the cases below referred to will show) has been re- 
 laxed, and in some instances, deemed wholly inapplicable.^ 
 
 * With respect to persons or officers 
 appointed by law to act judicially in a 
 public matter, it is generally held, there 
 being no provision of statute to the con- 
 trary, that where alt meet and act, a major- 
 ity may decide and bind the rest, and this 
 notwithstanding the express dissent of 
 the minority, or their wrongful with- 
 drawal before the act is consummated. 
 Rogers, in re, 7 Cow. (N. Y.) 526, 1827 
 (appraisal of damages ,by canal apprais- 
 ers), and see lb. note a, and the cases 
 there cited and reviewed ; lb. 764, expla- 
 nation. See, further, Willcocks, in re, 7 
 Cow. (N. Y.) 402, and note ; lb. 462, 403; 
 Young V. Buckingham, 5 Ohio, 485, 489, 
 1832; Charles w. Hoboken,3Dutcli. (N.J.) 
 203; Martin v. Lemon, 26 Conn. 192, 
 1857 ; Astor v. New York, 62 N. Y. 567, 
 580, 1875; People u. Palmer (effect of 
 death of one of the members or officers), 
 52 N. Y. 84; People v. Syracuse, 63 
 N. Y. 291 ; ante, sec. 99, note ; post, ch. 
 xxiii. 
 
 The statute authorized the appoint- 
 ment of three levee inspectors, and pre- 
 scribed their duties, which involved the 
 exercise of judgment. Hdd, that all must 
 meet and act, and that the action of a 
 majority in the absence of the third was 
 void. Ballard v. Davis, 31 Miss. 525, 
 1856. 
 
 Where a majority of a committee is au- 
 thorized to act, they constitute a party 
 capable of contracting ; and another mem- 
 ber of a committee, not acting as such, 
 but as an individual, constitutes another 
 party capable of being contracted with. 
 It is accordingly held that a majority of 
 such a committee may contract with or 
 employ one of their own number, and such 
 contract, if fairly made and without 
 fraud or corruption, will be binding upon 
 the corporation. Junkins v. Union School 
 District, 39 Me. 220 ; Buell v. Bucking- 
 ham, 16 Iowa, 284 ; post, sec. 443, note ; 
 ante, sec. 292; Willard v. Newburyport, 
 12 Pick. (Mass.) 227. Compare Smith v. 
 Albany, 61 N. Y. 444, 1875. But a con- 
 tract made by less than a majority of a 
 committee of the corporation, though in 
 
 the name of the whole, binds neither 
 party. Post, sec. 462. But it will be 
 binding if the authority was joint and 
 several, or if ratified. Adams v. Hill, 16 
 Me. (4 Shep.) 215, 1839 ; Kupfer v. South 
 Parish, etc., 12 Mass. 185, 1815; Allen v. 
 Cooper, 22 Me. 133, 1842. In Damon v. 
 Granby, 2 Pick. (Mass.) 845, 1842, this 
 distinction is taken. If a public cor- 
 poration appoints a committee of its 
 own members, a majority may bind, for 
 such is the usage and the common 
 law in relation to corporations. But if 
 the authority is given to persons not 
 members of the body, such persons are 
 agents, and not technically a committee, 
 and all must concur, unless it appear 
 that it was intended that a majority 
 should act. See authorities cited by So- 
 licitor General Davis in same case, p. 
 350; Viner's Ab. title Authority, B. pi. 7. 
 Further as to binding force of the act of 
 majority of a committee or board of se- 
 lectmen, see Jones v. Andover, 9 Pick. 
 (Mass.) 146; Cronimett v. Pearson, 18 
 Me. (6 Shep.) 344, 1841; Junkins v. 
 School District, 39 Me. 220, 1855; In- 
 habitants, etc. V. Cole, 3 Pick. (Mass.) 
 232, 244; Kingsbury v. School District, 
 12 Met. (Mass.) 99, 1846; Keyes v. West- 
 ford, 17 Pick. (Mass.) 273, 1835; Green 
 V. Miller, 6 Johns. (N. Y.) 39, 1810; 
 Grindley v. Barker, 1 Bos. & Pul. 236, per 
 Eyre, C. J. ; King v. Boston, 3 Term E. 
 592; Guthrie v. Armstrong, 5 Barn. & 
 Aid. 628, 1822, where it was held that a 
 power given to fifteen jointly and sever- 
 ally was well executed by four. A school 
 committee appointed according to and 
 under a statute are public officers within 
 the meaning of the statute which gives a 
 majority of such officers authority to act 
 for the whole. Keyser v. School Dis- 
 trict, 35 N. H. 477, 1857. Where an au- 
 thority is given, by law, to a committee, 
 or to more persons than one, to do an act 
 of a public nature, one alone, unless there 
 be something to show such intention, 
 cannot act independently and without 
 the concurrence of the others, or at least 
 of a majority. If the act is ministerial, a 
 
298 
 
 MUNICIPAL COEPOBATIONS. 
 
 [CH. X. 
 
 § 284. (222) The doctrine of the English courts is, that all of 
 the integral parts of a corporation necessary to do an act must 
 not only meet, but remain present till the act is completed ; and 
 therefore if one of such parts deserts or withdraws, though wrong- 
 fully, and to defeat any action, before the act is consummated, 
 
 majority at least must concur ; but unless 
 required, or such is the practice, they need 
 not act as a board, and b^ convened or 
 notified to be convened as such. But if 
 the act is judicial in its nature, that is, 
 requiring the exercise of judgment, unless 
 special provision is otherwise made, all 
 must meet or have notice to meet, a ma- 
 jority will constitute a quorum, and a 
 majority of the quorum will be compe- 
 tent to act. Martin v. Lemon, 26 Conn. 
 192, 1857. In this case it was ruled that 
 one of a committee of three to remove 
 encroachments on highways could not act 
 alone. Committees of public corpora- 
 tions have sometimes been held to be 
 governed, with respect to meeting and 
 notice, by different rules from a board 
 which has necessarily to be assembled or 
 convened before it can act. And the acts 
 of a majority of such committees have 
 been considered valid, though some mem- 
 ber of the committee was not notified. 
 Gallup u. Tracy (town committee to 
 stake out oyster grounds), 25 Conn. 10, 
 1856. But compare Martin v. Lemon, 
 26 Conn. 192. And see Damon v. Gran- 
 by, 2 Pick. (Mass.) 315, 364 ; Grindley v. 
 Barker, 1 Bos. & Pul. 229; Keeler v. 
 Frost, 22 Barb. (N. Y.) 400 ; Perry v. Ty- 
 ner, lb. 137. Where a public authority 
 is to be exercised by two officers — a 
 number not admitting of a, majority — 
 regularly, both should act; yet, to pre- 
 vent a failure of justice, it seems one 
 may, in certain cases, as where the other 
 is dead, disqualified, or absent, act alone. 
 But certain it is, that where one only acts, 
 the consent of the other will be presumed. 
 This is an application of the strong pre- 
 sumption which obtains in favor of the 
 performance of oflBcial duty. Downing 
 V. Rugar, 21 Wend. (N. Y.) 178, 1839, 
 and authorities cited. This case also 
 holds that the presumption of consent 
 should be rebutted only by the testimony 
 of the otiier officer, lb. 186. "It is a 
 
 general principle that where a board of 
 officers (for example, overseers of the 
 poor) is constituted to perform a duty 
 provided by law, the act of the majority 
 is the act of the whole body." Per Ben- 
 nett, J., Walcott ». Walcott, 19 Vt. 37, 39, 
 1846. See, also, King v. Beesten, 3 Term 
 R. 592; Jones v. Andover, 9 Pick. (Mass.) 
 146. 
 
 Under the statutes of Pennsylvania, all 
 powers conferred upon county commis- 
 sioners may be legally executed by two 
 without the concurrence of the third. 
 Commissioners v. Leckey, 6 Serg. & Bawle 
 (Pa.), 166; Cooper v. Reansbey, 8 Watts 
 (Pa.), 128; Curtis ». Butler Co., 24 How. 
 435; Jefferson Co. ». Slagle, 66 Pa. St. 
 202, where it is held that a contract by 
 two county commissioners within the 
 scope of their authority bound the county, 
 although not made at their office. 
 
 Where three commissioners are ap- 
 pointed to contract for site for poor- 
 house, two of them cannot make a valid 
 purchase. Pulaski Co. f;. Lincoln, 4 Eng. 
 (9 Ark.) 320, 1849. Action of less than 
 a majority of commissioners of public 
 buildings, appointed by act of legislature, 
 is void. Petrie v. Doe, 30 Miss. 698, 
 1856. A statute declaring that every 
 board of township trustees, "and the 
 members thereof," shall be overseers of 
 the poor was construed to make each 
 member an overseer, with power to act. 
 County Commissioners v. Jones, 7 Ind. 3, 
 5, 1855. When majority may lawfully 
 execute powers of a public nature. Com- 
 missioners i;. Leckey, 6 Serg. & Bawle 
 (Pa.), 170; Baltimore v. Turnpike, 5 
 Binn. (Pa.), 484; McCready «. Guardians, 
 9 Serg. & Rawle (Pa.), 99; Common- 
 wealth V. Commissioners, 9 Watts (Pa.), 
 466, 471; Cooper v. Lampeter, 8 Watts 
 (Pa.), 128; Caldwell v. Harrison, 11 Ala., 
 755 ; Commissioners v. Tarver, 21 7ft. 661 ; 
 Crist V. Town Trustees, 10 Ind. 452; 
 Schenck o. Peay, 1 Dillon C. C. R. 267. 
 
§ 285.] 
 
 CONSTITUTION OF COUNCILS. 
 
 299 
 
 the act is not valid.^ The liability of this rule to abuse, since it 
 enables one of the parts of a joint meeting or assembly to defeat 
 any action whatever, has led the courts in this country to deny 
 its applicability here, or to apply it with caution.^ 
 
 § 285. (223) The usual division of the meetings of corporate 
 bodies is into (1) stated or regular, and (2) special meetings ; and 
 
 cers ; and it was held, Ist, that the elec- 
 tion was valid; and 2d, that a majority of 
 the twenty-three present could elect. In 
 reference to this decision it may be ob- 
 served that the court take no notice of 
 the power of compelling the attendance 
 of the absentees, and that this provision 
 seemed to contemplate the presence of a 
 majority of ectch of the constituent bodies. 
 The court cite and approve Whitside v. 
 People, 26 Wend. 634, and Humphreys, 
 in re, 10 Wend. 612 ; in both of which, 
 however, the constituent bodies, so to call 
 them, duly met but refused to act. It is 
 substantially admitted by the court that 
 the decision they make is not in conform- 
 ity with the English rule, but they con- 
 sider it to be the one "which will best 
 enable the government of the city to pro- 
 ceed with regularity " ; and that " after 
 every preliminary step has been properly 
 taken, the mere neglect of one of the 
 constituent bodies to carry its previous 
 vote into effect ought not to hinder the 
 other bodies from performing the duties 
 required by the charter." Per Gilchrist, 
 C. J., in Beck v. Hanscom, supra, 9 Fost, 
 (29 N. H.) 213, 226. In Kimball v. Mar- 
 shaU, 44 N. H. 465, 1863, Bell v. Hanscom, 
 supra, is approved, and its doctrine ap- 
 plied to a different state of facts. 
 
 Effect of refusal of one of two distinct 
 bodies to go into a joint meeting, or, after 
 being assembled in joint meeting, to par- 
 ticipate in "the joint ballot" by which 
 officers (by statute) are to be removed or 
 appointed, see, in court of errors, Whit- 
 side V. The People, 26 Wend. (N. Y.) 634, 
 1841, reversing decision of Supreme Court 
 in same case, 23 Wend. 9. See act of 
 Congress of July 26, 1866 (14 Statutes at 
 Large, 243), regulating the election of 
 United States senators by the legislatures 
 of the several states in joint assembli/, con- 
 taining provisions (the necessity for which 
 has been shown by experience) to prevent 
 one of the bodies from defeating action. 
 
 I King V. Williams, 2 Maule & Sel. 
 141; following King v. Butler, 8 East, 
 388; questioning King v. Norris, 1 Bar- 
 nard. K. B. 386; cited and reviewed, 7 
 Cow. 526, note ; King v. Miller, 7 Terra 
 E. 278; 2 Kent's Com. 292. Mr. Will- 
 cock vindicates the rule, but on grounds 
 not very satisfactory. Corp. 53, 54. Supra, 
 sec. 271. 
 
 ' Humphreys, in re, 10 Wend. N. Y. 
 612, 1834; People v. Batchelor, 22 N. Y. 
 128, 146, per Denio, J.; First -Parish v. 
 Stearns, 21 Pick. (Mass.), 148, 1838; Coles 
 Co. V. Allison, 23 lU. 383'. 
 
 The common law rule, that to the due 
 constitidion of a corporate assembly a majority, 
 at least, of each integral or component 
 part or body must necessarily be present, 
 was departed from by the Supreme Court 
 of New Hampshire in the case of Beck v. 
 Hanscom. By the charter, the city gov- 
 ernment of Portsmouth was vested in a 
 mayor, "one council of seven, to be 
 denominated the board of aldermen, 
 and one council of twenty-one, to be 
 denominated the common council, which 
 boards should, in tlieir joint capacity, be 
 denominated the city council." It was 
 further provided by the charter that a 
 " majority of eafAi board shall constitute 
 a quorum " ; that the two bodies shall sit 
 and act separately, except " when the two 
 are required to meet in convention " ; 
 that at the meeting of the " city council 
 in convention, if it shall appear that a 
 majority of either of said bodies is not 
 present," the members may compel the 
 attendance of the absentees, etc. The 
 board of aldermen and the common coun- 
 cil separately voted to meet in convention 
 on the 12th of June, for the choice of 
 city officers ; but when the time arrived, 
 only a minority (three out of seven), of 
 the board of aldermen appeared. The 
 common council and these aldermen, 
 twenty-three in all, being a majority of 
 both boards, proceeded to elect city offi- 
 
300 MUNICIPAL COKPOEATIONS. [CH. X. 
 
 meetings of either class possess an incidental power of adjourn- 
 ment, from whence we have another class known as adjourned 
 meetings. The time of holding regular or stated meetings is fixed 
 by the charter, or by ordinance or by-law, passed in pursuance 
 thereof ; and, in either case, the time thus appointed is presumed 
 to be known to the members of the body ; and unless the charter 
 or by-law otherwise provides, it is their duty to attend such 
 meetings without further or special notice. Absent members, 
 equally with those who are presenifc, are bound by whatever is 
 lawfully done at a regular or stated meeting, or any regular and 
 valid adjourned meeting.^ 
 
 § 286. (224) If the meeting be a special one, the general rule 
 is, unless modified by the charter or statute, that notice is neces- 
 sary, and must be personally served, if practicable, upon every 
 member entitled to be present, so that each one may be afforded 
 an opportunity to participate and vote.^ By the charter of a 
 city, the power of imposing taxes belonged to the inhabitants 
 assembled in annual town meeting. It was provided that if, at 
 this meeting, no tax was voted, or insufficient tax, the common 
 council " should call a meeting of the inhabitants, by advertise- 
 ment or otherwise," for the purpose of having them vote a tax'. 
 The court spemed to be of opinion that the common council were 
 obliged to specify the objects of the call in their notice, it being a 
 
 1 People V. Batchelor, 22 N. Y. 128, such other meetings are valid if all the 
 
 1860; Smith v. Law, 21 N. Y. 296; State members actually attend and participate 
 
 V. Smith (presumptions of regularity ), 22 in the proceedings, and they are otherwise 
 
 Minn. 218, 1875; an<e, sec. 266; Hudson regular. State v. Smith, 22 Minn. 218. 
 
 Co. V. State (presumptions of regularity), Presumption that all members are pres- 
 
 4 Zabr. (24 N. J. L.), 718 ; Insurance Co. ent and acted. lb. 
 
 V. Sanders, 36 N. H. 252. See and com- At a stated meeting of a select body 
 
 pare, State v. Jersey City, 1 Dutch. (N. at which all the members are not present, 
 
 J.), 809. it is not competent, in the opinion of the 
 
 '^ People 1). Batchelor, 22 N. Y. 128, Court of Appeals of New York, in the 
 
 134, per Sdden, J. ; lb. 146, per Denio, J. ; absence of a statute or by-law to that 
 
 Rogers, in re, 7 Cow. (N. Y.) 526, and effect, to appoint a future new or special 
 
 cases cited in valuable note ; Downing v. meeting to determine independent mat- 
 
 Eugar, 21 Wend. (N. Y.) 178 ; Burgess ters not taken up, and which could not 
 
 V. Pue, 2 Gill (Md.), 254; Stow v. Wise, legally have been taken up at the stated 
 
 7 Conn. 214 ; Harding v. Vandewater, 40 meeting, and to act at such future time, 
 
 Cal. 77 ; Smith v. Darley, 2 House Lords unless all have actual notice. If any one 
 
 Cases, 789, 1849. A charter provision thus entitled to notice does not receive it, 
 
 that the council shall meet at such time and is not present, the action is void, 
 
 and place as they may by resolution di- People v. Batchelor, 22 N. Y. 128, 1860 ; 
 
 rect does not preclude other meetings to be read in connection with Smith v. 
 
 than those fixed by such resolution, and Law, 21 N. Y. 296. 
 
§ 287.] 
 
 CONSTITUTION OF COUNCILS. 
 
 301 
 
 special meeting ; and it decided that if it did specify a particulars 
 purpose, that any act of the meeting, " wholly beside the special 
 purpose of the meting as stated," was void.^ 
 
 § 287. (225) A regular meeting, unless special provision is 
 made to the contrary, may adjourn to a future fixed day ; and at 
 such meeting it will be lawful to transact any business which 
 might have been transacted at the stated meeting, of which it is, 
 indeed, but the continuation. Unless such be the special require- 
 ment of the charter or a by-law, the adjourned regular meeting 
 would not, it is supposed, be limited to completing particular 
 items of business which had been actually entered upon and left 
 unfinished at the first meeting ; but might, if the adjournment was 
 general, do any act which might have been done had no adjourn- 
 ment taken place.^ Where the meeting, if a regular one, can only 
 act upon a specific matter, or, if a special one, can only act upon 
 matters of which notice has been given to the members, while it 
 is competent, in either case, to adjourn, the adjourned meeting is, 
 in both cases, limited, equally with the first meeting, to the speci- 
 fied matters.' 
 
 > Bergen v. Clarkson, 1 Halst. (N. J.) 
 352, 1796. See, also, Hex v. Liverpool, 
 2 Burr. 735; Rex v. Doncaster, 76. 738; 
 King V. Mayor, etc., 1 Str. 385 ; Machell 
 V. Nevinson, 2 Ld. Raym. 1355; 2 Bac. 
 Abr. 18. 
 
 2 Smith V. Law, 21 N. T. 296; War- 
 ner V. Mower, 11 Vt. 385; People v. 
 Batchelor, 22 N. Y. 128 ; Rawlinson on 
 Corp. (5th ed.) 136, note ; Rex v. Harris, 
 1 B. & A. 936 ; Scadding v. Lorant, 5 Eng. 
 Law and Equity, 16, 1851 ; People v. 
 Martin, 1 Seld. (5 N. Y.) 22 ; Street Case, 
 1 La. An. 412 ; Hudson Co. v. State, 4 
 Zabr. (24 N. J. L.) 718. Adjournment 
 by minority to day appointed for regular 
 meeting. People v. Rochester, 5 Lans- 
 ing (N. Y.) 142, 1871. 
 
 ' Scadding v. Lorant, 6 Eng. Law and 
 Equity, 16 ; s. c. 17 Law T. 225 H. of 
 L. 1851. In this case, the statute (a local 
 act) required notice to be given of a 
 meeting of vestrymen to be held for the 
 purpose of making a rate for the relief of 
 the poor. Such notice was given, speci- 
 fying the purpose of the meeting ; the 
 meeting was held accordingly on the 12th 
 
 of August, when it was resolved that a 
 rate should be made ; but as the details 
 could not be completed, the meeting was 
 adjourned, and at an adjourned meeting 
 the matter of the rate was completed; 
 but the notice for the adjourned meeting 
 contained no mention of the purpose for 
 which the meeting assembled. And the 
 question which the House of Lords put 
 to the judges in reference to the ad- 
 journed meeting, was : " Supposing the 
 rate to be otherwise valid, was it invalid 
 by reason of the notice not stating the 
 purpose for which the [adjourned] meet- 
 ing assembled 1 " The judges answered : 
 " We are unanimously of opinion that 
 the rate was not rendered invalid by rea- 
 son of the alleged defect in the notice of 
 the adjourned meeting. It was sufScient 
 to give notice [as required by the act] on 
 the church door, of the purpose for which 
 the first meeting was to be held, and, that 
 notice having been duly given, we think 
 that the notice so given extended to all 
 the adjourned meetings, such adjourned 
 meetings being held for the purpose of 
 completing the unfinished business of the 
 
302 MUNICIPAL CORPOEATIONS. [CH. X. 
 
 Mode of Proceeding when convened. 
 
 § 288. (226) 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 de- 
 liberative and legislative bodies. If the council consists of two 
 boards, the concurrence of both is essential to valid legislation, 
 and this concurrence must be by simultaneously existing bodies.^ 
 The rule of legislative bodies consisting of two branches, that un- 
 finished business at the end of a session is discontinued, and must 
 be afterwards taken up anew, if at all, was considered applicable 
 to the legislative acts of the common council of New York, com- 
 posed of a board of aldermen and a board of assistant aldermen." 
 
 § 289. (227) The council may ascertain facts through the 
 medium of a committee, and the members of the council may, 
 where they know the facts of their personal knowledge, act 
 without further inquiry.^ As a public corporation may entirely 
 revoke the powers of a committee it has appointed, so it may con- 
 trol the execution of those powers by increasing the number of 
 the committee. If the new members, either by design or mis- 
 first meeting, and being in continuation ' Wetmore v. Story, 22 Barb. (N. Y.) 
 of that meeting." And eucli was the 414, 1856. A subsequent council is bound 
 judgment of the House of Lords. See, by knowledge duly communicated to a 
 also. King «. Harris, 1 Barn. & Ad. 936. previous council. Bank v. Seton, 1 Pet. 
 "Mcetingsmay be adjourned, but nothing (U. S.) 299, 1828. In Commonwealth v. 
 may be transacted .at any adjourned Lancaster, 5 Watts (Pa.), 152, Gibson, C. 
 meeting save the unfinished business of J., expressed his opinion to be that, not- 
 the former meeting." Brice's Ultra Vires, withstanding a by-law or rule requires 
 Green's Am. ed. 534, citing Eex v. Grim- certain corporate acts to be in a given 
 shaw, 10 Q. B. 747 ; the text, sec. 287, form, and that alterations of such by-law 
 states the true and reasonable rule, and or rule shall only be made by a vote of 
 unless otherwise provided and ordered, two thirds of the members, yet that a 
 the adjourned meeting may transact any majority may repeal the by-law or rule, 
 business which might have been trans- and may, without such repeal, do valid 
 acted by the regular meeting. acts, not in the prescribed form, by a 
 
 Presumption as to regularity of ad- majority vote, 
 journment when proceedings of the ' Bissell b. JefCersonville, 24 How. (tJ. 
 adjourned meeting come before the court. S.) 287, 296, per Clifford, J.; Common- 
 Hudson Co. 0. State, 4 Zabr. (24 N. J. L.) wealth v. Pittsburgh, 14 Pa. St. 177, 1850. 
 718; Insurance Co. v. Sortwell, 8 Allen As to power of council to appoint officers, 
 (Mass.), 217; State v. Jersey City, 1 and when it may delegate its powers to a 
 Dutch. (N. J.) 809; State v. Smith, 22 committee. lb.; Preble ». Portland, 45 
 Minn. 218, 1876. Me. 241 ; ante, sec. 9S. 
 
 » Wetmore v. Story, 22 Barb. (N. Y.) 
 414, 1856. 
 
§ 291.] 
 
 MODE OF PEOCEEDING. 
 
 303 
 
 take, are excluded from acting, the proceedings of the others will 
 be irregular.^ 
 
 § 290. (228) At any time before the rights of third persona 
 have attached, a council or other corporate body may, if consist- 
 ent with its charter and rules of action, rescind previous votes 
 and orders.^ Thus a vote levying a tax, so long as it rests in 
 mere resolution, and has not been acted upon, may be reconsid- 
 ered, and, if rescinded, the collector cannot legally proceed to 
 collect the tax.^ 
 
 § 291. (229) A provision of a city charter, that the ayes and 
 nays shall he called and published whenever the vote of the com- 
 mon council shall be taken on any proposed improvement in- 
 volving a tax or assessment upon the citizens, was considered, by 
 two of the three of the members of the Supreme Court of New 
 
 1 Damon v. Granby, 2 Pick. (Mass.) 
 345, 1824. In this case it was further 
 held, where the agents of a town con- 
 tracted with the plaintiff " to erect a 
 meeting-house on a place to be designated 
 by a committee of the town," that the 
 town might disagree to the selection, and 
 "designate the place for tliemselves, at 
 any time before the ground was pre- 
 pared," on indemnifying the plaintiff for 
 any extra labor or expense which their 
 fluctuating proceedings may have occa- 
 sioned. A notice to appear before a com- 
 mittee to whom a matter, as, for example, 
 the laying out or altering of a street, has 
 been duly referred, is equivalent to a 
 notice to appear before the city council, 
 as, for this purpose, the committee repre- 
 sent the council. Freble v. Portland, 45 
 Me. 241, 1858. 
 
 2 Bigelow V. Hillman, 87 Me. 58 ; Reiff 
 0. Conner, 5 Eng. (10 Ark.) 241 ; State v. 
 Hoyt, 2 Oregon, 246 ; ante, sec. 69 ; Boad 
 Case, 17 Pa. St. 71, 75; New Orleans 
 V. St. Louis Church, 11 La. An. 244. 
 Reconsideration at subsequent meeting. 
 Locke V. Rochester, 5 Lansing (N. Y.), 
 11, 1871; Sauk v. Philadelphia, 1 Pa. 
 Leg. Gaz. Rep. 259. " The right of re- 
 considering lost measures [at the same 
 meeting, or pursiuant to its rules] inheres 
 in every body possessing legislative pow- 
 ers." Per WhelpUy, C. J., Jersey City v. 
 
 State, 1 Vroom (80 N. J. L.), 521, 529, 
 1868 ; Red v. Augusta, 25 Ga. 386. " All 
 deliberative assemblies, during their ses- 
 sion, have a right to do and undo, con- 
 sider and reconsider, as often as they think 
 proper, and it is the result only which is 
 done." Per Kirkpatrick, C. J., in State v. 
 Foster, 2 Halst. (N. J.) 101, 107, 1823. 
 See, also. State v. Jersey City, 8 Dutch. 
 (N. J.) 536. While public money is in 
 tlie possession of the proper officer, the 
 proper authorities have entire control 
 over it, and they may, so far as the offi- 
 cer holding it is concerned, rescind a 
 prior order (not yet complied with) to 
 pay money to an individual. Tucker i;. 
 Justices, 13 Ire. (N. Car.) Law, 434; Dey 
 ». Lee, 4 Jones (N. Car.) Law, 238. A 
 resolution is not invalid because passed 
 upon a reconsideration of a negative vote 
 moved by one who voted originally with 
 the minority. Locke v. Rochester, 5 Lan- 
 sing (N. Y.), 11, 1871. But in Sauk v. 
 Philadelphia, 8 Phila. Rep, (by Wallace) 
 117, a nisi prius decision of the Supreme 
 Court, it was held that the city councils 
 having once voted to sustain the mayor's 
 veto of an ordinance passed by them, 
 could not reconsider this vote, nor take 
 any further action on the measure. 6 
 Am. Law Rev. 720. 
 
 « Stoddard v. Gilman, 22 Vt. 568 ; Pond 
 V. Negus, 8 Mass. 230. 
 
304 
 
 MUNICIPAL COKPOEATIONS. 
 
 [CH. X. 
 
 YorTc, notwithstanding the use of the word " shall" to be directory 
 merely, "the essential requisite being the determination of the 
 corporation, and not the form or manner of expressing that deter- 
 mination."^ But an opposite view has elsewhere, as we think 
 properly, been taken of similar provisions, the court regarding the 
 requirement that votes shall, in such cases, be entered at large on 
 the minutes, as intended to accomplish an important public pur- 
 pose, and therefore consider the requirement as mandatory and 
 its observance essential to valid corporate action.^ The proper 
 remedy for the council is to cause a nunc pro tunc entry to be 
 made.^ This it has power to do.* Statutory provisions requiring 
 for the passage of municipal ordinances of a general nature that they 
 
 1 Striker v. Kelly, 7 Hill (N. Y.), 9, 24, 
 29, 1844, Bronson, J., dissenting ; s. c. in 
 Error, 3 Denio, 323. Under a law re- 
 quiring a. vote of the common council, 
 where more than a majority is required, 
 to "be taken by the yeas and nays, 
 which shall be entered on the journal," 
 the proceeding, to be valid, must appear 
 from the journal itself, and cannot be 
 proved by evidence aliunde. Carlton 
 Street, in re, 16 Hun (N. Y.), 497. See 
 McCormick v. Bay City, 23 Mich. 457, 
 1871 ; Indianola v. Jones, 29 Iowa, 282 ; 
 Mount Morris Square, in re, 2 Hill, 20 ; 
 Elmendorf v. Mayor, etc., of N. Y., 25 
 Wend. 693. The view expressed in the 
 New York cases, cited and approved. St. 
 Louis V. Foster, 52 Mo. 513, 1873 ; per 
 Wagner, 3. ; post, sec. 450, note. In Mor- 
 rison I!. Lawrence, 98 Mass. 216, the grant 
 of an important special power was con- 
 strued to require, as a condition to its ex- 
 ercise, the taking of the ayes and nays, 
 and a record of the vote. The decision 
 or determination of a question by a town 
 meeting or common council should be, 
 and probably must be, by a formal vote or 
 resolution. People v. Adams, 9 Wend. (N. 
 Y.) 833, 1832; Denning v. Koome, 6 
 Wend. (N. Y.) 651, 1831. 
 
 2 Steckert v. East Saginaw, 22 Mich. 
 104, 1870, where the purpose of the re- 
 quirement is well expounded; Spangler 
 V. Jacoby, 14 111. 297 ; Supervisors, etc. v. 
 People, 25 111. 297 ; Morrison ». Lawrence, 
 supra ; McCormick v. Bay City, 23 Mich. 
 457, 1871; Delphi i>. Evans, 36 Ind. 90, 
 1871. Accordingly a provision of statute 
 
 that no ordinance for the improvement of 
 a street shouhi be adopted, except upon 
 the report and recommendation of the 
 city board of improvements, and requir- 
 ing that such report be recorded in its pro- 
 ceedings, is mandatory, and the report 
 and recommendation were held jurisdic- 
 tional and not provable by parol evidence. 
 Reynolds v. Schweinefus, 1 Sup. Court, 
 Cin. (0.) Kep. 113. 
 
 Where a local improvement is pro- 
 posed, and it is not petitioned for by a 
 majority of the owners of property to be 
 assessed, the ch'arter declares that it shall 
 be ordered only by the votes of at least 
 three fourths of all the aldermen present, 
 such vote to be by ayes and nays on the 
 record of the common council ; if, when 
 the record is presented, it does not appear 
 that the improvement was ordered liy a 
 vote of three fourths of the aldermen 
 present, by vote entered by ayes and 
 nays, the ordinance is void, and judg- 
 ment for a sale of the property to pay the 
 local assessment cannot rightfully be 
 entered. Rich v. Chicago, 59 111. 286, 1871. 
 Effect of such a provision on the power 
 to make a contract by parol. Indianola v. 
 Jones, 29 Iowa, 282, 1870 ; post, sec. 449 
 and note. 
 
 ' Logansport v. Crockett, 64 Ind. 319 
 Mayhew v. Gay Head, 13 Allen, 129 
 Steckert v. East Saginaw, 22 Mich. 104 
 Delphi V. Evans, 36 Ind. 90; Commis- 
 sioners V. Hearn, 59 Ala. 371 ; Musselman 
 V. Manly, 42 Ind. 462 ; Vawter </. Frank- 
 lin College, 53 Ind. 88. 
 
 * Same cases. 
 
§ 292.] MODE OF PROCEEDING. 305 
 
 be read on three different days, unless three fourths of all the 
 members elected shall dispense with the rule, is mandatory. Tjius 
 where two ordinances were reported for passage, and the requisite 
 number voted in favor of suspending the rule for reading on dif- 
 ferent days, and the ordinances were respectively passed, it was 
 held that the vote suspending the rules applied only to the first 
 ordinance, and that the second was not legally adopted.^ 
 
 § 292. (230) Acts done when less than a legal quorum is pres- 
 ent, or which were not concurred in by the requisite number, 
 are void.^ This is a fundamental rule in the law of corporations ; 
 but whether, in favor of the holder of negotiable securities is- 
 sued, or purporting to be issued, under authority conferred by 
 the legislature, the corporation might not, in some cases, be es- 
 topped to show that a quorum was not present or that the requi- 
 site number did not concur in the act, is a question which remains, 
 perhaps, to be settled.^ It is clear that members of a council 
 cannot properly act upon questions in which their own pecuniary 
 interest is directly and specially involved.* But it has been held 
 in Michigan that proceedings on the part of a municipal corpora- 
 tion ordering a paving improvement are not rendered invalid on 
 the ground that two of the aldermen who formed part of the quo- 
 rum of the common council, which ordered the improvement, and 
 without whose presence there would have been no quorum, were 
 petitioners for the improvement and owners of property liable to 
 assessment therefor. It might be otherwise, the court concede, 
 if the common council acted as commissioners of apportionment 
 in making the assessment upon the property that was to bear the 
 
 I Bloom V. City of Xenia, 32 Ohio St. presumed. Insurance Company a. Sort- 
 
 459; s. p. Morrison v. Lawrence, 98 Mass. well, 8 Allen (Mass.), 217. 
 
 219; State v. Hudson, 6 Dutch. (N.J.) 3 g^e ante, sec. 89; post, chapter on 
 
 478; City of Delphi w. Evans, 36 Ind. 90. Contracts. Construction of charter pro- 
 
 This is not the rule in New York. Cases vision requiring unanimity. Post, sec. 310. 
 
 supra, note 2. * Members of a municipal board are 
 
 * Loganeport o. Legg, 20 Ind. 315, disqualified to vote therein on proposi- 
 
 1863 ; Ferguson v. Chittenden Co., 1 Eng. tions in which they have a direct pecu- 
 
 (6 Arl£.) 479, 1846; Price v. Railroad niary interest adverse to the municipality 
 
 Company, 13 Ind. 58, 1859; McCracken they represent. Supervisors v. Hall, 47 
 
 V. San Francisco, 16 Cal. 591 ; Piemental Wis. 208 ; Pickett v. School Dist., 25 Wis. 
 
 V. San Francisco, 21 Cal. 351 ; State v. 551 ; Coles u. Williamsburgh, 10 Wend. 
 
 Wilkesville, 20 Ohio St. 288. Number 659 ; Walworth Bank v. F. L. & T. Co., 16 
 
 present and acting, how proved. 18 Ind. Wis. 629 ; United Brethren Church v. 
 
 58, supra. Presence of quorum, when Vandusen, 87 Wis. 54; Oconto v. Hall, 
 
 Wis. 1879 ; 20 Alb. L.J. 352. 
 
 VOL. I. 20 
 
306 
 
 MUIflCIPAL COKPOEATIONS. 
 
 [CH. X. 
 
 burden, or on the confirmation of a report in which the interest 
 of .these aldermen was directly involved.^ 
 
 1 Steckert v. East Saginaw, 22 Mich. 
 104, 1870, where the reasons for the dis- 
 tinctions taken are clearly stated by 
 Cooiey, 3. In the same state it was also 
 held that the mayor of a city, who was a 
 practising lawyer, might lawfully be em- 
 ployed, when there was no collusion or 
 fraud, and no doubt as to the necessity 
 and value of his services, by a resolution 
 
 of the council to appear and defend a suit 
 against the city, and that he could recover 
 the value of his services. Niles, Mayor, 
 etc. V. Muzzy, 33 Mich. 61, 1875 ; s. c. 
 20 Am. Bep. 670. 
 
 Right of corporation to contract with its 
 officers or councilmen. Ante, sec. 283, note 
 3„,and cases cited; post, sec. 443, note. 
 
§ 294] CORPORATE RECORDS. 307 
 
 CHAPTER XI. 
 
 COBPOKATB BBCOEDS AND DOCUMENTS. — CUSTODY. — BIGHT 
 
 OF INSPECTION. 
 
 § 293. (231) Corporations have the incidental power, if the 
 regular clerk is temporarily absent, to appoint a private person a 
 clerh pro tern., for the purpose of making the entries of what is 
 transacted at the corporate meeting. His entries, made by the 
 direction of the corporate authorities, or entries made by the 
 regular clerk from memoranda furnished by the clerk pro tem., 
 are competent evidence of the proceedings of the meeting.' 
 
 § 294. (232) The clerk or officer of a New England town," 
 who has made an erroneous record, may, while in office (but not 
 afterwards), or after a re-election to the same office, amend the 
 same according to the truth, being liable, like a sheriff who amends 
 his return, for any abuse of the right, as, where he makes a 
 fraudulent or untruthful amendment, the town is not concluded 
 or bound by an erroneous record, whether made bj'' design or 
 accident, unless when it would, on general principles, be es- 
 topped.* 
 
 » Hutehinson v. Pratt, 11 Vt. 402, * Ante, sees. 29, 30, as to New England 
 1839. See also Rex v. Mothersell, 1 Stra. towns. New Haven, etc., Railroad Co. v. 
 93, also referred to infra. SuflSciency of Chatham, 42 Conn. 445. 
 memoranda. Louisville v. MoKegney, 7 ' Cass i». Bellows, 11 Fost. (31 N. H.) 
 Bush (Ky.), 651, 1870. Failure of clerk 501, 1855; Harris v. School District, 8 
 to take oath of office does not invalidate Fost. (28 N. H.) 58, 66, 1853; Gibson v. 
 his record. Stebbins v. Merrit, 10 Cush. Bailey, 9 N. H. 168 ; Whittier u. Varney, 
 (Mass.) 21 ; ante, isc. 214. Signature of ION. H. 291; Wells u. Battelle, 11 Mass. 
 chairman to ijiinutes affixed at a day sub- 477 ; Low v. Pettingill, 12 N. H. 340 ; 
 sequent to the meeting held sufficient; Pierce v. Richardson, 37 N. H. 306 ; Seam- 
 under a statute requiring the minutes of mon v. Scammon, 8 Fost. (28N. H.) 429 ; 
 corporate meetings to be signed by the President, etc. v. O'Malley, 18 111. 407, 
 chairman. Miles v. Bough, 3 Gale & D. 1867 ; Mott ti. Reynolds, 27 Vt. (1 Wms.) 
 119; IngllB V. Railway Co., 16 Eng. Law 206, 1855; Boston Turnpike Co. v. Pom- 
 & Eq. 55. See also chapters relating to fret, 20 Conn. 590, 1850 ; compare Cov- 
 Corporate Meetings and Corporate Offl- ington w. Ludlow, 1 Met. (Ky.) 295, below 
 cers ; post, sec. 331 ; Logansport r Crock- cited. The necessity and reasonableness 
 ett, 64 Ind. 819, approving text. of the doctrine stated in the text are 
 
308 
 
 MUNICIPAL COKPOKATIONS. 
 
 [CH. XI. 
 
 § 295. (233) lu a case in Vermont, the cleik of the town, 
 pending the trial, amended the record by adding his signature as 
 clerk to the record of the warning for the meeting in question. 
 His right to do so, though he had meantime been out of office, 
 but was again restored, was sanctioned by the Supreme CoUrt, 
 Bedfield, C. J., remarking : " We think, in general, it must be 
 regarded as the right of the clerk of a town or other municipal 
 corporation, while having the custody of the records, to make 
 any record according to the facts. «His having been out of office, 
 
 thus expounded by Parker, C. J., in 
 Wells V. Battelle, 11 Mass. 477, 481, 1814 : 
 " We have had frequent occasion to per- 
 ceive the great irregularity which prevails 
 in the records of our towns and other mu- 
 nicipal corporations ; and the courts hare 
 always been desirous to uphold these pro- 
 ceedings, where no fraud or wilful error 
 was discoverable. Too much strictness 
 on subjects of this nature would throw 
 the whole body politic into confusion 
 (Kellar v. Savage, 17 Me. 444). For it 
 cannot be expected that, in all corpora- 
 tions, persons will be every year selected 
 who are capable of performing their duty 
 with the exactness which would be use- 
 ful or convenient. . . . The first entry 
 made by the clerk here [that an officer 
 was sworn into officej was certainly de- 
 fective, but the defect is properly cured 
 by the subsequent entry of the existing 
 clerk, he being the same person that offi- 
 ciated at the time of the first entry. He 
 will be sufficiently watched by interested 
 parties, to render a deviation from truth 
 neither safe nor easy." ^ The doctrine of 
 the case in 11 Mass. 477, was followed 
 and applied in Chamberlain v. Dover, 13 
 Me. 466, 1836, where it was further held 
 that the municipal body was not bound 
 by an erroneous record of a clerk, even 
 though the plaintiffs, confiding in its cor- 
 rectness, had made a building contract 
 with the "contracting and building com- 
 mittee " named in the record. The.meet- 
 ing in this case, which attempted to con- 
 fer this power upon the committee, was 
 not a legal one, because not held at the 
 time and place appointed ; and it was 
 considered by the court that the plaintiff's 
 remedy was against the committee and 
 not against the town, if the former acted 
 without authority See further as to cor 
 
 reeting aijd amending records, Williams 
 t;. School District, 21 Pick. 75, holding 
 that where two different, but not contra- 
 dictory records were made up by the 
 clerk from memoranda taken at the meet- 
 ing that both were originals and compe- 
 tent testimony. 
 
 Clerk cannot amend records after he is out 
 of office. School District v. Atherton, 12 
 Met. (Mass.) 105, 1846; Hartwell D.Lit- 
 tleton, 13 Pick. (Mass.) 229,232, 1832; 
 Contra, tu the effect that he may amend, 
 though out of office at the time, see Gib- 
 son V. Bailey, 9 N. H. 168, 1838 ; Gibson 
 V. Bailey followed in Missouri in one case, 
 Kiley v. Cranor, 51 Mo. 541, 543, 1873. 
 But may, while he is in office. Bishop v. 
 Cone, 3 N. H. 513, 1821 ; Hoag v. Durfey, 
 1 Aiken (Vt.),286, 1826; Chamberlain v. 
 Dover, 13 Me. 466, 1836. That successor 
 cannot make the amendment. State v. 
 Williams, 25 Me. 555, 561 ; 29 lb. 523 ; 
 Taylor u. Henry, 2 Pick. (Mass.) 397. 
 But the corporation might, in proper cases, 
 authorize the successor to supply the 
 omitted, or correct the erroneous entry. 
 Hutchinson v. Pratt, 11 Vt. 402, 419. 
 
 In New Hampshire it is the practice to 
 allow these amendments only upon the 
 order of the Supreme Court or Court of 
 Common Pleas by the officer by whom 
 they were made, even after he has ceased 
 to hold the office. A clear case must be 
 made out. The court do not permit any 
 erasures or interlineations of the original 
 record, but require the amendment to be 
 written upon a separate piece of paper, 
 signed by the proper officers, and with it 
 a copy of the order allowing the amend- 
 ment ; and this paper is annexed to the 
 original record. Pierce v. Richardson, 37 
 N H. 306, 311, per Beff, J. 
 
§ 296.] CORPOEATK RECORDS. 309 
 
 and restored again, could not deprive him of that right. But 
 even an officer could not alter or amend a record upon the testi- 
 mony of third persons ordinarily, and ought not to do it upon 
 his own recollection, unless in very obvious cases of omission or 
 error, of which the present might fairly be regarded as one, prob- 
 ably. Such amendments should ordinarily be made by the origi- 
 nal documents or minutes." * 
 
 § 296. The right of the clerk ex parte to amend the records of the 
 proceedings of town corporations was very thoroughly considered 
 in a case in Connecticut? The statute of that state requires 
 town clerks to keep the record books of their respective towns 
 and to enter truly all the votes and proceedings of the town. 
 The town clerk made an entry showing that at a town-meeting 
 held in 1843, the town assumed to the plaintiff a liability to com- 
 mence January 1, 1844. If the time thus stated was the true 
 time, the plaintiff had a cause of action against the town. In 
 1849 the clerk, not upon his own personal knowledge, nor upon 
 any written memorandum, but on the information of others (with 
 the correctness of which, however, he was perfectly satisfied), 
 amended the record so as to show that the liability of the town 
 was not, by the vote, to commence until April 1, 1844. If this 
 was the true time, the plaintiff had no cause of action. The 
 majority of the court (three judges against two) held that the 
 clerk, still continuing in office, was competent to amend the rec- 
 ord ; that this power is derived solely from his official character 
 and does not depend on the permission of the court in which the 
 record is offered as an instrument of evidence, nor on inquiry into 
 the truth of it as originally made, or as amended, and that such a 
 record is, in such an action, conclusive evidence of its own truth. 
 The dissenting judges, without denying the power of amendment 
 in all cases, were of opinion that in view of the lapse of time, the 
 
 1 Mott V. Reynolds, 27 Vt. (1 Wms.) ments of the records of the proceedings 
 206, 208, 1855. Amendments in open of a common council in Connecticut, 
 court of town record by cleric of the when.it can be made by the clerk and 
 town pending trial, to which the clerk is when by order of court upon mandamus, is 
 a party, and to meet a particular deci- considered in Samis v. King, 40 Conn, 
 sion of the court, disregarde'd. Hadley v. 298, 1873. Parties to mandamus to com- 
 Chamberlain, 11 "Vt. 618, 1839. Com- pel the clerk of a city to amend record, 
 mented on and distinguished. Mott v. Farrell v. King,' 41 Conn. 448, 1874; 
 Reynolds, 27 Vt. (1 Wms.) 206, 1855. Logansport v. Crockett, 64 Ind. 819, ap- 
 
 2 Boston Turnpike Co. v. Pomfret, 20 proving text. 
 Conn. 590, 1850. The subject of amend- 
 
310 MUNICIPAL CORPORATIONS. [CH. XI. 
 
 absence of written memoranda, or personal recollection by the 
 clerk, the clerk had no authority to make the amendment, and 
 that the correct course would have been to have made application 
 to the proper court by legal process, e. g., mandamus, to correct 
 the mistake in the record, if one existed, and thus give the oppo- 
 site interested party an opportunity to show that the record was 
 already right. It would seem, under the special circumstances, 
 that the dissenting view was the better one. 
 
 § 297. (234) Where the clerk makes up the record of the pro- 
 ceedings of the council, and it is read and approved at the same 
 or at a subsequent meeting, the author doubts his authority, on 
 his own motion to amend it afterwards without the direction of the 
 council. The council, unless private rights have attached, may, 
 doubtless, order the record of its own proceedings, even after it 
 has once been approved, to be corrected according to the facts. 
 The Court of Appeals of Kentucky, without determining the ex- 
 tent of the power of the same council at a subsequent meeting, to 
 correct errors and omissions in the journal entry of proceedings 
 at a, previous meeting, decided that this could not be done hy an 
 entirely new board in respect to the official action of their prede- 
 cessors ; and it was accordingly held that where the records, as 
 kept, showed only that in August, 1854, an ordinance was re- 
 ported, a new council could not, in 1856, add to the records words 
 showing that the ordinance had passed, nor could the fact of its 
 passage be shown by extrinsic evidence.^ 
 
 § 298. (235) Parol evidence may, if necessary, be admitted to 
 apply a resolution or recorded vote of a town to its proper subject 
 matter,^ but not, in general, to explain, enlarge, or contradict its 
 
 1 Covington v. Ludlow, 1 Met. (Ky.) v. Gayhead, 13 Allen, 129; Steckert v. 
 
 295, 1858 ; see, also, Lexington v. Head- East Saginaw, 22 Mich. 104 ; Delphi i;. 
 
 ley, 5 Bush (Ky.), 508, 1869; Graham v. Evans, 36 Ind. 90. 
 
 Carondolet, 33 Mo. 262; State v. Jersey " Baker v. Windham, 13 Me. (1 Shep.) 
 
 City, 1 Vroom (30 N. J. L.), 93, 148, and 74, 1836. In this case the town ofWind- 
 
 chapters on Corporate Meetings and Ordi- ham entered upon its records the foUow- 
 
 nances, pos«, sec. 310; ante, sec. 290. A ing: "Voted to indemnify Benj. Baker 
 
 public corporation may, like every court in his costs in the action against A. Small, 
 
 of record, amend its records nunc pro tunc, which have or may arise in the same on 
 
 Commissioners v. Hearn, 69 Ala. 371 ; account of Groy line." In an action by 
 
 Musselmanv. Manly, 42 Ind. 462; Vawter Baker against the town to recover costs 
 
 V. Franklin College, 53 Ind. 88 ; Logans- of a suit which he had brought against 
 
 port V. Crockett, 64 Ind. 319; Mayhew Small, parol evidence was adjudged to 
 
§ 299.] CORPOKATE RECORDS. 311 
 
 terms or meaning, in respect to matters (as, for example, laying 
 out a highway or street) regularly within the jurisdiction of the 
 town or its officers and where the entry of record is made in pur- 
 suance of law.^ Where the record of a meeting states that " the 
 inhabitants met and adjourned the meeting," parol evidence may 
 he admitted to show when and where the meeting was held, how 
 many were present, and how many afterwards came, and, finding 
 no meeting, went home.^ 
 
 § 299. (236) Parol evidence in a collateral action cannot be 
 received to contradict the records of a public corporation, required 
 by law to be kept in writing, or to show a mistake in the matters 
 as therein recorded. Thus, if the records of a school district show 
 that the district voted to authorize their clerk to call and warn 
 " their annual meetings," parol evidence in an action by the dis- 
 trict is not admissible to prove that the real vote of the district 
 was to authorize the clerk to call and warn all district meetings.* 
 So, where the record of a town stated the warning to have been 
 on the 17th, and the meeting to have been held on the 19th of 
 January, parol evidence cannot be admitted to show that, by 
 mistake, the clerk inserted the " 19th" instead of the " 29th." 
 The remedy is, to have him correct the record, if in office, ac- 
 cording to the truth.* 
 
 have been rightly admitted to show that (Mass.) 397. Where a statute requiring 
 
 Baker brought the action in his name a record to be made of the persons sworn 
 
 against Small, on account of the Gray into office is directory, if the record is 
 
 line, at the request of the selectmen of not made, the fact may be shown by 
 
 Windham, for the purpose of settling a parol or other competent evidence. Kel- 
 
 disputed line between that and the ad- lar v. Savage, 17 Me. (6 Shep.) 444, 1840. 
 
 joining town, with the express agreement In the M. E. Corporation v. Herrick, 25 
 
 that the town should pay all costs, and Me. 354, it was hdd, that to establish a 
 
 to show that these facts were before the resulting trust in the corporation [with, 
 
 town when the vote was passed, and also respect to lands], it could not prove the 
 
 to show that the suit so instituted was authority of the committees to act for it 
 
 conducted under the advice and direction by parol evidence ; the authority should 
 
 of the authorities of the town. appear, and could only be shown by its 
 
 1 Manning v. Fifth Parish, etc., 6 Pick, records. Further, as to what facts may 
 
 (Mass.) 16; Crommett f. Pearson, 18 Me. be shown by parol, Bath ». County 
 
 344; Covington v. Ludlow, 1 Met. (ICy.) Commrs., 36 Me. 74; 35 lb. 873; Smith 
 
 295 ; Cabot v. Britt, 86 Vt. 349 ; Lexing- v. County Commrs, 42 Me. .S95 ; Long o. 
 
 ton V. Headley, 5 Bush (Ky.), 508, 1869 ; Battle Creek, 39 Mich. 323 ; ante, sec. 268, 
 
 post, sec. 310; ante, sec. 291. and note ; post, sec. 310. 
 
 ^ Chamberlain v. Dover, 13 Me. 466, ' School District v. Atherton, 12 Met. 
 
 1836. But parol evidence of an adjourn- (Mass.) 105, 1846 ; Morrison w. Lawrence, 
 
 ment to another day cannot be 'given so 98 Mass. 219 ; Mayhew ». Gayhead, 13 
 
 as to validate acts done on the day ad- Allen (Mass.), 129. 
 joumed to. Taylor v. Henry, 2 Pick. * Durfey v. Hoag, 1 Aiken (Vt.), 286, 
 
312 
 
 MUNICIPAL COKPOEATIONS. 
 
 [CH. XI. 
 
 § 300. (237) But a distinction has sometimes been drawn be- 
 tween evidence to contradict facts stated on the record and evi- 
 dence to show facts omitted to be stated upon the record. Parol 
 evidence of the latter kind is receivable unless the law expressly 
 and imperatively requires all matters to appear of record, and 
 makes the record the only evidence.^ Thus, in a well-considered 
 case in the Supreme Court of the United States,^ it was held that 
 
 1826. So in Connecticut, if a, town cor- 
 poration makes an erroneous record of its 
 proceedings, this cannot be contradicted 
 in a collateral action. In such an action 
 the record is conclusive. If false, and the 
 corporation will not correct the record, a 
 party interested may, by mandamus, com- 
 pel it to make the correction. Boston 
 Turnpike Co. v. Pomfret, 20 Conn. 500, 
 1850. Upon this point, all the judges, 
 though differing on other points, seemed 
 to agree. So, on an appeal from an assess- 
 ment for a city street, — Held, that parol 
 evidence was not admissible to prove that 
 the common council agreed to an arrange- 
 ment proposed by the appellant andrecom- 
 mended by the committee on streets, that 
 in consideration of his opening and grad- 
 ing certain streets without expense to the 
 city, he should not be called on to pay 
 any assessment when the street in ques- 
 tion should at some future time be laid 
 out. It seems that such an agreement, 
 however proved, would be of no validity. 
 Gilbert v. New Haven, 40 Conn. 102, 1873; 
 post, ch. xix. ; supra, sec. 295. 
 
 Purcliasers of such paper [bonds issued 
 by cities for stock in railroads] look at the 
 form of the paper, the law which author- 
 ized it to be issued, and the recorded pro- 
 ceedings on which it is based. Therefore, 
 as against purchasers, the record cannot 
 be contradicted by parol evidence. Per 
 Clifford, J., in Bissell v. Jeffersonville (ac- 
 tion on municipal bonds), 24 How. (U. S.) 
 287, 298. See chapter on Contracts, post, 
 as to the rights of holders of such securi- 
 ties. 
 
 1 Moor I). Newfield, 4 Greenl. (Me.) 44, 
 1826. " The only legal mode of proving 
 facts on record is by the record itself, or 
 by an attested copy of it." 76. per Mellen, 
 C. J. ; School District v. Atherton, 12 
 Met. (Mass.) 105, 113, 1847, per Dewey, J. ; 
 Langsdale v. Bonton, 12 Ind. 467 ; India- 
 napolig V. Imberry, 17 Ind. 176, 179 ; Del- 
 
 phi V. Evans (referring to previous cases), 
 36Jpd. 90, 1871 ; Bigelow «. Perth Araboy, 
 
 I Dutch. (N.J.) 297, 1855; Gearhart v. 
 Dixon, 1 Pa. St. 224, 1845. Where the 
 law or charter requires the clerk to keep a 
 journal of all of the acts and proceedings 
 of the city council, that, or a copy, is the 
 proper evidence of the official doings of 
 the body. City of Lowell v. Wheelock, 
 
 II Cush. (Mass.) 391, 1853; Harris v. 
 Whitcomb, 4 Gray (Mass.), 433; Morri- 
 son V. Lawrence, 98 Mass. 219 ; Louisville 
 V. McKegney, 7 Bush (Ky.), 651, 1870; 
 post, sec. 310. 
 
 The Supreme Court of Kansas, advert- 
 ing to the distinction in the text, sustained 
 the introduction of parol testimony as a 
 means of establishing in part the passage of 
 an ordinance. Troy v. Atchison, etc.. Rail- 
 road Co., 13 Kan. 70, 1874 ; s. c. 11 Kan. 
 519. The exact point decided appears 
 from the syllabus settled by the judges, 
 and which is as follows : Where a city 
 fails to provide any book for the record 
 of its ordinances, but its ordinances, after 
 their passage and approval, are placed 
 and kept on file in the office of the city 
 clerk, and a third party obtains a duly 
 certified copy of an ordinance so placed 
 and kept on file, and acts in good faith 
 upon such ordinance, and is induced 
 partly thereby to make large expendi- 
 ture of money, in a subsequent contro- 
 versy between the city and such third 
 parties or their assigns the rule of equita- 
 ble estoppel will apply to the city, and 
 the due passage and existence of said 
 ordinance may be shown by parol testi- 
 mony. Troy b. Atchison, etc., Bailroad 
 Co. et al, 13 Kan. 70, 1874. 
 
 " Bank, etc. v. Danbridge, 12 Wheat. 
 64. Delivering the opinion of the court, 
 Mr. Justice Story, arguendo, makes these 
 important observations : " Would the 
 omission of the corporation to record its 
 own doings have prejudiced the rights of 
 
§ 301.] 
 
 COEPOKATE KECOEDS. 
 
 313 
 
 the acts of a corporation might be proved otherwise than by its 
 records or some written document, even although it was its duty 
 " to keep a fair and regular record of its proceedings." The 
 statute did not prescribe that nothing but a recorded vote or 
 written document should bind the corporation or be received as 
 evidence. Such written evidence was not deemed indispensable 
 unless positively required. The direction to keep a record was 
 regarded as directory. 
 
 § 301. (238) Where the records of a municipal corporation 
 have been so carelessly and imperfectly kept as not to show the 
 adoption of a resolution or other acts of the city council, and 
 there is no written evidence in existence, parol testimony may be 
 admitted, e. g., to show that certain work was done by authority 
 
 the party relying upon the good faith of 
 an actual vote of the corporation ? If such 
 omission would not be fatal to the plaintiff 
 in suits against the corporation (as, in our 
 opinion, it would not be), it establishes the 
 fact that acts of the corporation, not 
 recorded, may be established by parol 
 proofs, and, of course, by presumptive 
 proofs. In reason and justice, there does 
 not seem any solid ground why a corpo- 
 ration may not, in case of the omission 
 of its officers to preserve a written record, 
 give such proofs to support its rights as 
 would be admissible in suits against it to 
 support adverse rights. The true ques- 
 tion in such case would seem to be, not 
 which party was plaintiff or defendant, 
 but whether the evidence was the best 
 the nature of the case admitted of, and 
 left nothing behind in the possession or 
 control of the party higher than secondary 
 evidence. . . . We do not admit, as a gen- 
 eral proposition, that the acts of a corpo- 
 ration are invalid merely from an omission 
 to have them reduced to writing, unless 
 the statute creating it makes such writing 
 indispensable as evidence, or gives to them 
 an obligatory force. If the statute im- 
 poses such restriction, it must be obeyed." 
 (12 Wheat. 69, 74.) The same principle 
 was applied, in the case of the United 
 States V. Fillebrown, 7 Pet. 28, to the acts 
 of boards of public agents or officers, and 
 it was in that case accordingly held that 
 the board of commissioners of the navy 
 hospital fund, not being required by law 
 
 to reduce its proceedings to writing in 
 order to make them binding, oral evidence 
 of such proceedings (no record having 
 been made) was competent. Langsdale 
 V. Bonton, 12 Ind. 467. 
 
 " It appears to us that in the absence 
 of all record, it might be competent for 
 the defendants (trustees and collector of 
 the corporation justifying under its pro- 
 ceedings) to show, by parol, the proceed- 
 ings of the meeting. Where there is a 
 record, it cannot be added to or varied by 
 parol. Taylor ti. Henry, 2 Pick. (Mass.) 
 403. But where there is an omission to 
 make records, the rights of other persons, 
 acting under or upon the faith of a vote 
 not recorded, ought not to be prejudiced. 
 And it would seem that the right in such 
 a case is reciprocal in the corporation and 
 in those who claim adversely to it." Per 
 Williams, C. J., Hutchinson v, Pratt, 11 
 Vt. 402, 421. But compare Stevens v. 
 Eden, etc. Society, 12 Vt. 688; 16 lb. 
 439; 17/6.337. 
 
 The rights of creditors, or of third per- 
 sons, cannot be prejudiced by the neglect 
 of the council to keep proper minutes ; 
 against the corporation, what the council 
 in fact did may be shown by evidence 
 aliunde the record kept by it. Bigelow v. 
 Perth Amboy, 1 Dutch. (N. J.) 297, 1855 ; 
 San Antonio v. Lewis, 9 Tex. 69, 1852. 
 
 Proof of the action and orders of a 
 municipal board of health, see chapter on 
 Ordinances, post, sec. 371, note. 
 
314 
 
 MUNICIPAL COKPOEATIONS. 
 
 [CH. XI. 
 
 of the city, by proving the passage of a resolution of the council, 
 the appointment of a committee to make the expenditure, their 
 report after the work was done, and its adoption by the council.^ 
 
 § 302. (239) Mandamus is an appropriate remedy for the 
 duly elected and authorized officer of a public or municipal 
 corporation to compel the delivery to him by his predecessor, or 
 by an usurper, of the looks, papers, records^ and seal pertaining 
 to the office.^ And such a corporation may maintain replevin in 
 
 1 Ross V. Madison, 1 Ind. (Carter) 281, 
 1848; Langsdale v. Bonton, 12 Ind. 467; 
 Indianapolis v. Imberry, 17 Ind. 175, 179 ; 
 Delphi V. Evans (reviewing previous 
 cases), 36 Ind. 90, 1871. In tlie same 
 state, however, county commissioners and 
 township trustees are required by law to 
 keep a true record of their proceedings, 
 and it is held that they " can only speak 
 by their record "when legally assembled. 
 County Commrs. v. Chitwood, 8 Ind. 604, 
 507, 1851; Trustees v. Osborne, 9 Ind. 
 458. So, in Maine, " school districts are 
 required by law to keep an account of 
 their proceedings by a sworn clerk, and 
 such proceedings can be proved only by 
 the record or a copy thereof duly authen- 
 ticated." Jordan v. School District, 38 
 Me. 164, 1854. The records of public or 
 quasi corporations are not, in Ohio, con- 
 sidered to be "of that absolute verity 
 that any person shall be estopped to show 
 the truth in consequence of any mat- 
 ter which' they contain " or omit to con- 
 tain ; and it was accordingly adjudged 
 that the fact whether an official bond was 
 received or refused and rejected may be 
 shown by parol evidence, on which point 
 the record was silent. Westerhaven ». 
 Clive, 5 Ohio, 136, 1821, as to records of 
 township trustees. See Green v. State, 8 
 Ohio, 810, 1838, in which it was queried 
 whether the county commissioners could 
 appoint an agent by parol or only by 
 record. In Iowa, it has been held that 
 where no record entry is made such an 
 appointment may be shown by parol tes- 
 timony and that the agent acted accord- 
 ingly. Poweshiek County v. Ross, 9 Iowa, 
 511; Atheam v. District, 33 Iowa, 105, 
 1871 ; and see ace. Ross v. Madison, 1 
 Ind. (Carter) 281; compare Meeker ». 
 Van Rensselaer, 15 Wend. 397. Where 
 
 recording is not required by charter or 
 law, resolutions of a council are admissi- 
 ble in evidence, although not recorded. 
 Darlington a. Commonwealth, 41 Pa. St. 
 68. See post, sec. 310; Louisville v. 
 McKegney, 7 Bush (Ky.), 651, construing 
 charter as to requisites of the journal re- 
 quired to be kept by each board of the 
 council. 
 
 ^ Proprietors of Church v. Slack, 7 
 Cush. (Mass.) 226, 239, 1851 ; Common- 
 wealth i;. Athearn, 3 Mass. 285; Rex v. 
 Wildman, 2 Strange, 879; King ». In- 
 gram, 1 W. Bl. 50; King v. Round, 4 Ad. 
 & El. 139 ; Cranford v. Powell, 2 Burr. 
 1013; Rex v. Clapham, 1 Wils. 305; 3 
 Bl. Cora. 310 ; Kimball v. Lamprey, 19 N. 
 H. 215, 1848, where the above authorities 
 are cited and digested by Gilchrist, C. J. ; 
 Taylor v. Henry, 2 Pick. (Mass.) 397; 
 Parish, etc. v. Steams, 21 Pick. (Mass.) 
 148, 156; Bates v. Plymouth, 14 Gray 
 (Mass.), 163 ; Perkins v. Weston, 3 Cush. 
 (Mass.) 549. 
 
 The following points have been ruled 
 in respect to corporations in England : If 
 the custody of their documents belong to 
 one of their officers in virtue of his office, 
 the corporation cannot compel him to de- 
 liver them up, but may require that he 
 submit them to their inspection whenever 
 they think proper. Rex v. Ipswich, 2 Ld. 
 Raym. 1238 ; Rex v. Pigram, 2 Burr. 767 ; 
 Willc. 345; Glover, 260. Sometimes the 
 custody of these documents is entrusted 
 to the town clerk or other officer, merely 
 as the servant of the corporation, in which 
 case they may appoint another to receive 
 them ; and if they are not delivered over 
 after demand, the corporation may obtain 
 possession of them by an action of detinue 
 or the court will compel a delivery by 
 mandamus. lb. If the predecessor in of- 
 
303.] 
 
 CORPORATE RECORDS. 
 
 315 
 
 its name for the possession of its record ; and this action is main- 
 tainable against a stranger or any officer or person not legally 
 entitled to the custody of the records.^ 
 
 § 803. (240) Concerning the right to inspect corporate docu- 
 ments and papers, the following points have been ruled as stated 
 by Mr. Willcock : Every corporator has a right to inspect all the 
 records, books, and other documents of the corporation, upon all 
 proper occasions ; and if, upon application for that purpose, the 
 officer who has the custody refuse to show them, the court will 
 grant a mandamus to enforce his right.^ One who has a prima 
 fade title to a corporate office has a right to inspect such docu- 
 ments as relate to that title, and may obtain a mandamus for this 
 purpose before any suit has been instituted.^ A corporator has a 
 right to inspect these documents, to obtain information as to his 
 rights, whether in dispute with a stranger or the corporation 
 
 fice, or, he being dead, his personal rep- 
 resentative, or another person having 
 possession of corporate documents under 
 him, refuse to deliver thera over to the 
 successor or the corporation, on a proper 
 application, the court will grant a man- 
 damus to compel him to do so. Rex v. 
 Nottingham, 1 Sid. 31 ; Anonymous, 1 
 Barnard. 402; Willo. 345; Glover, 260. 
 This writ is said, indeed, to lie to any per- 
 son, whether stranger or corporator, who 
 happens to be in possession of the books 
 of a corporation, and who refuses to de- 
 liver them up. Proprietors of Church v. 
 Slack, 7 Cush. (Mass.) 226, 1851, per 
 Fletcher, J.; Rex v. Ingram, 1 W. BI. 60; 
 Willc. 246 ; Glover, 231 ; post, ch. xx. 
 
 1 Parish, etc. v. Stearns, 21 Pick. 
 (Mass.) 148; School Districts. Lord, 44 
 Me. 374, — replevin for records of dis- 
 trict. The court, holding that replevin 
 would lie, say : " The action is, there- 
 fore, rightfully brought, and may be 
 maintained if the defendant was not the 
 legal clerk of the district." Per Rice, J., 
 44 Me. 374, 384. The right or title of 
 an office cannot be determined by a civil 
 action between the respective claimants, 
 as by an action of replevin for the official 
 books and papers, and until the issue as 
 to the right Is determined, by quo warranto 
 or other proper proceeding, no suit in 
 
 replevin can be maintained by one claim- 
 ant against the other for the possession of 
 the appurtenances of the office. Des- 
 mond V. McCarty, 17 Iowa, 525. In La 
 Grange v. State Treasurer, 24 Mich. 466, 
 the court decided that replevin does not 
 lie for papers filed in a public office. Post, 
 sec. 848. 
 
 2 Rex V. Shelley, 3 Term R. 142 ; Rex 
 V. Babb, lb. 580 ; Harrison v. Williams, 3 
 Barn. & Cress. 162 ; Rogers v. Jones, 5 D. 
 & R. 484 ; Willc. 347 ; Glover, 262. Any 
 person sufficiently interested is entitled to 
 inspect entries in books of public corpora- 
 tions relating to public matters of the 
 corporation, where the evidence is re- 
 quired in a civil action. Grant Corp. 311. 
 See, also. People v. Cornell, 47 Barb. (N. 
 Y.) 329, in which it is held that a corpo- 
 rator without any special or private inter- 
 est has the right to inspect and take 
 copies of all public documents and rec- 
 ords, under reasonable restrictions to 
 secure the safety of the originals. 
 
 3 Rex V. Newcastle, 2 Stra. 1223 ; Rex 
 V. Lucas, 10 East, 235 ; Rex v, Purnell, 1 
 Wils. 242 ; Rex v. Bridgeman, 2 Str. 1203; 
 People I). Mott, 1 How. Pr. (N. Y.) 247; 
 Cockburn v. Bank, 13 La. An. 289 ; Peo- 
 ple V. Walker, 9 Mich. 328; People v. 
 Cornell, 47 Barb. (N. Y.) 329; post, ch. 
 
 XX. 
 
316 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XI. 
 
 itself, or any of its members.' When the corporator's application 
 to inspect is founded on his general right, he has a mandamus, 
 but when it is founded on a suit pending, he obtains a rule.^ In 
 an action by one corporation against another, rules were made 
 absolute for each corporation to inspect so much of the books and 
 records as related to the subject in dispute.^ The motion for the 
 rule to inspect and to have copies should be supported by affidavits 
 showing the foundation of the claim, the application, the proper 
 officer, and his refusal. The rule visjill require the expense attend- 
 ing obedience to be borne by the applicant, and will, in proper 
 cases, allow the officer a remuneration for his trouble. If the 
 officer disobey, without sufficient reason, the rule to allow an in- 
 spection or to give copy of, or to produce corporate documents, 
 the court will grant an attachment against him.* 
 
 § 304. (241) A public or municipal corporation, required by 
 law to keep a record of its public, or official proceedings, may 
 itself use such records as evidence in suits to which it is a party ; 
 but the records must first be properly authenticated.^ Indeed, in 
 
 1 Edwards v. Vesey, Cas.Terap. Hardw. 
 128; Eex v. Babb, 3 Term R. 580 ; Rex v. 
 Bridgeman, 2 Stra. 1203 ; Grant on Corp. 
 312. 
 
 The English rule is that the right to 
 inspect the auditor's report is extended 
 to," any inhabitant or ratepayer." The 
 difference between an inhabitant and a 
 ratepayer is that " inhabitant " means a 
 resident, whether a ratepayer or not, and 
 that a " ratepayer " is a person wlio pays 
 taxes, whether a resident or not. The 
 King V. Nortli Curry, 4 B. & C. 961. 
 Mere colorable residence is insufficient 
 to constitute a person an inhabitant. The 
 King V. Sargent, 5 Term R. 466 ; The King 
 V. Duke of Richmond, 6 Term R. 560 ; 
 Bruce v. Bruce, 2 B. &. P. 229, n ; The 
 King V. Mitchell, 10 East, 511 ; Whithorn 
 B. Thomas, 7 M. & G. 1. 
 
 2 Rex i;. Shelley, 3 Term R. 142. 
 
 " Mayor of London a. Lyme Regis, 1 
 H. Bl. 206 ; Mayor, etc. of Southampton 
 V. Graves, 8 Term R. 592. 
 
 < Willc. 352, 353 ; Grant, 311 et seq. 
 See, also, People v. Mott, 1 How. (N. Y.) 
 Pr. 247 ; Cockburn b. Bank, 13 La. An. 
 289; People v. Walker, 9 Mich. S28. 
 
 ' School District v. Blakeslee, 1 3 Conn. 
 
 227, 1839; Denning u. Roome, 6 Wend. 
 (N. Y.) 651; Wood v. Jefferson County 
 Bank, 9 Cow. (N. Y.) 205; State v. Van 
 Winkle, 1 Dutch. (N.J.) 73; McFarlane 
 V. Insurance Company, 4 Denio (N. Y.), 
 392; Turnpike Company v. McKean, 10 
 Johns. (N. Y.) 154. Denning v. Roome, 
 above cited, holds that the original minutes 
 or records of the corporation of a city 
 were competent evidence of corporate 
 acts, without further proof of their verity. 
 Records of corporation lield admissible, 
 though not required by law to be kept, 
 and, where defective, explainable by parol 
 evidence. Gearhart v. Dixon, 1 Pa. St. 
 224, 1845; Adams c. Mack, 3 N. H. 493, 
 499, per Richardson, C. J. 
 
 The following points have been de- 
 cided respecting English corporations : 
 Where charters or corporation books are 
 to be given in evidence, being records or 
 instruments of a public nature, they may 
 themselves be produced ; and examined 
 copies of their contents may also be given 
 in evidence. The Court of King's Bench 
 will not make a rule to produce the origi- 
 nals, unless it be shown by affidavit that 
 a new entry, rasure, or some other cir- 
 cumstance, renders an inspection neces- 
 
§ 304.] 
 
 CORPORATE RECORDS. 
 
 317 
 
 actions generally, including actions against agents or officers of 
 the corporation, as individuals, the original minutes or records of 
 the corporation are competent evidence of the acts and proceed- 
 ings of the corporation. Duly authenticated copies have often 
 been received in evidence where the original document or pro- 
 ceeding was of a public nature.^ 
 
 sary. To give books this public charac- 
 ter, it must appear, if they be questioned, 
 that they have been publicly kept, and 
 that entries have been made by the proper 
 officers; not but that entries made by 
 other persons may be good, if the town 
 clerk be sick or refuses to attend, which, 
 however, must be proved, and the reason 
 why they were not made by the proper 
 officer shown. Rex v. Mothersell, 1 Stra. 
 93 ; Brocas v. Mayor, etc. of London, 1 
 Stra. 307 ; Bex v. Gwyn, Mayor, etc., 1 
 Stra. 401; Willc. .34.3; Glover, 258; Bex 
 ». Smith, 1 Stra. 126 ; Grant, 318. Who- 
 ever produces the book must establish its 
 authority before he delivers it in, and 
 may be required to show where it has 
 been kept, and how it came to his pos- 
 session. Bex V. Mothersell, 1 Stra. 93; 
 Bex V. Thetford, 12 Vin. Abr. 90, p. 16 ; 
 Willc. 344; Glover, 258. A book contain- 
 ing minutes of some corporate acts which 
 occurred ten years ago, entirely written 
 by the relator's clerk, who was not an 
 officer of the corporation, and appearing 
 never to have been kept among, or es- 
 teemed as, one of the corporate docu- 
 ments, or even seen before the present 
 application for an information, is not ad- 
 missible as a corporate document. Bex 
 V. Mothersell, 1 Stra. 93. Nor is the 
 copy of a letter made fifty years ago and 
 found in the corporation chest, but the 
 original must be first accounted for, as 
 though it had been found in the possession 
 of a private person. Bex v. Gwyn, 1 Stra. 
 401. Nor are entries of a private nature, in 
 the public books of a corporation, evi- 
 dence for them in support of a right 
 which they claim, for this were allowing 
 the party to fabricate evidence for them- 
 selves. Rex o. Debenham, 2 B. & Ad. 
 187; Marriage v. Lawrence, 3 B. & Ad. 
 144 ; Grant on Corp. 318, 319 and cases ; 
 2 Phil. Ev. 122 ; Angell & Ames Corp. 
 sec. 679 ; Willc. 344. 
 
 1 Denning v. Eoome, 6 Wend. (N. Y.) 
 
 651, 1831 ; citing Owings v. Speed, 5 
 Wheat. 424 ; Bex t. Mothersell, 1 Stra. 
 93; 12 Vin. Abr. 90, pi. 16. See also. 
 People V. Adams, 9 Wend. (N. Y.) 333; 
 Wood V. Jefferson County Bank, 9 Cow. 
 (N. Y.) 194, 205; Angell & Ames on 
 Corp. sec. 679 ; Turnpike Co. v. McKean, 
 10 Johns. (N. Y.) 154. In Denning v. 
 Boome, supra, the defendant was sued in 
 his individual capacity for removing, by 
 order of the city council, a certain fence 
 erected by the plaintifT. The defendant 
 (although it was argued that, being the 
 agent of the corporation, the latter should 
 be considered as the party and its own 
 records as incompetent in its own favor 
 to justify its acts) was allowed to show 
 by the records of the corporation that 
 the fence was on a portion of the public 
 street. 
 
 The clerk of a city or town is, by law, 
 the proper certifying officer to authenti- 
 cate copies of the votes and ordinances 
 thereof. Such copies are admissible in 
 evidence without preliminary proof, as in 
 ordinary instruments, of the genuineness 
 of the clerk's signature, but are, of 
 course, only prima facie evidence, and 
 they may b6 shown to be inaccurate, false, 
 or forged. Commonwealth v. Chase, 6 
 Cush. ( Mass. ) 248, 1850. Where the orig- 
 inal document is of a public nature, and 
 would be evidence if produced, it is not 
 necessary to show the document itself, 
 for it may be required at many places at 
 the same time ; for that reason an imme- 
 diate sworn copy, made by the proper 
 officer, will be admitted. Bex v. Lord 
 George Gordon, Doug. 593 ; 1 Phil. Er. 
 405; Willc. 344; Glover, 259. Grant, 
 318, lays down the rule generally, that 
 sworn copies of public entries in books of 
 public corporations are admissible wher- 
 ever the originals would be, and the cor- 
 poration will not be compelled to produce 
 their books in court except for reasons 
 shown. It has, however, been held that 
 
318 
 
 MUNICIPAL COKPORATIONS. 
 
 [CH. XI. 
 
 § 305. (242) An admission by a corporation of a fact or of a 
 liability, duly and properly made, is, of course, evidence against 
 it. But a municipal corporation, by accepting, that is, receiving 
 the report of a committee of inquiry, does not admit the truth of 
 the facts stated therein ; and such a report, though accepted by a 
 vote of the corporation, is not admissible in evidence against it.^ 
 In an action of assumpsit against a town corporation, to support 
 his cause of action, the plaintiff produced the books of the cor- 
 poration, by which it appeared that the sum demanded in the 
 declaration had been allowed by the council to the plaintiff on 
 the 5th of September, on final settlement, at which time the 
 plaintiff was president and assented to the settlement. The de- 
 fendant contended that the resolution had been passed by mis- 
 take, and offered to show, by the same books, the passage, three 
 days afterwards, in the plaintiff's absence, of a resolution rescind- 
 
 the by-laws of a corporation, in the ab- 
 sence of special provision, must be 
 proved by the production of the by-laws 
 themselves, as these are the primary evi- 
 dence. Lumbard v. Aldrich, 8 N. H. 31 ; 
 Moor V. Newfield, 4 Greenl. (Me.) 44; 
 Hallowell Bank v. Hamlin, 14 Mass. 178. 
 So, of the votes of a corporation, the 
 record is the best evidence. Haven ». 
 Asylum, 13 N. H. 532. See also, Man- 
 ning «. Parish, 6 Pick. (Mass.) 6 ; Taylor 
 W.Henry, 2 Pick. (Mass.) 403; Green w. 
 Indianapolis, 25 Ind. 490. It may be re- 
 marked that there are statutes in various 
 states under which certified copies would 
 be receivable in evidence instead of the 
 originals. Licenses from a city or town 
 authorizing persons to pursue particular 
 employments, etc., need not be in writing. 
 Boston tt. Shaffer, 9 Pick. (Mass.) 415, 
 1830. 
 
 1 Dudley v. Weston, 1 Met. (Mass.) 
 477, 1846 ; followed by Collins v. Dorches- 
 ter, 6 Cush. (Mass.) 396, 1850 ; and both 
 relating to defective highways. In the 
 King V. Hardwick, 11 East, 578, a rated 
 parishioner made a confession, which 
 was admitted in evidence against the par- 
 ish, on the ground that the parish was an 
 aggregate corporation or company, of 
 which he was a member ; compare May- 
 or, etc. V. Long, 1 Camp. 68. But this is 
 not the law in this country, and it may be 
 eafely laid down that the admission of a 
 
 corporator cannot be received against the 
 body. Hartford Bank v. Hart, 3 Day 
 (Conn.), 493, denying King v. Hardwick, 
 supra ; Osgood v. Manhattan Co., 3 Cow. 
 (N. Y.) 612, 623. But the admission of 
 an officer when made in the ordinary 
 course of his official duty, and within the 
 scope of his powers, may be admissible 
 against the corporation. Peyton v. Hos- 
 pital, 3 C. & P. 363 ; Angell & Ames on 
 Corp. sec. 809; lb. sec. 659; ante, sec. 
 237, note. 
 
 Notice to corporator or member is not 
 notice to the corporation; it should be 
 formally given as such to the authorized 
 head or proper officer. Powles v. Page, 
 8 Com. B. 31 ; Edwards v. Railroad Co., 
 1 Myl. & Cr. 659 ; Grant Corp. 315. Lan- 
 cey brought an action for tibel against the 
 mayor and clerk of the city of Bangor 
 for the following statement contained in 
 their annual report : " Balance due from 
 John Laneey, Collector, S6,004.50." The 
 balance was shown to be less. It was 
 held that there was no presumption of 
 law that the officers of a city or town 
 knew the contents of the city records and 
 no rule of law obliging them to be ac- 
 quainted therewith ; and unless the de- 
 fendants made the publication maliciously 
 they were entitled to a verdict. Laneey 
 V. Bryant, 30 Me. (10 Shep.) 466, 1849; 
 ante, sec. 237, note. 
 
§ 305.] COEPOEATE EECOEDS. 319 
 
 ing the amount of the plaintiff's account. It was held that the 
 subsequent resolution was not competent evidence, the court 
 basing this opinion on the proposition that the books of a corpo- 
 ration are evidence against, but not in its favor, in an action 
 against the corporation by a stranger.^ 
 
 1 Mayor v. Wright, 2 Port (Ala.) 230, 1886, citing 1 Stark Ev. 292; but is not 
 tlie proposition too broadly stated? 
 
320 MUNICIPAL C0EP0KATI0N3. [CH. XIL 
 
 CHAPTER XII. 
 
 MUNICIPAIi OEDINANCES OR BY-LAWS. 
 
 § 306. (243) This subject will be considered under the fol- 
 lowing heads : — 
 
 1. Definition, General Nature, and Common Law Requisites 
 of Ordinances — sees. 807-330. 
 
 2. Of the Signing, Publication, and Recording — sees. 331- 
 335. 
 
 3. Of the Power to impose Fines, Penalties, and Forfeitures 
 — sees. 336-363. 
 
 4. On Whom Binding, and Notice thereof — sees. 354^356. 
 
 5. Ordinances relating to the LicensiBg, Taxing, and Regu- 
 lation of Amusements and Occupations, including the Sale of 
 Intoxicating Liquors — sees. 357-365. 
 
 6. Ordinances relating to Public Offences — sees. 366-368. 
 
 7. Ordinances relating to the Public Health, Safety, and Conve- 
 nience : Herein of Hospitals, Cemeteries, and Burials ; Nuisances ; 
 Markets and Inspection Regulations ; Dangerous Occuptions and 
 Practices'; and of the Police Power and General Welfare Clauses 
 in Charters — sees. 369-407. 
 
 8. Mode of enforcing Ordinances : Herein of Actions and Pro- 
 secutions, and their Nature ; Mode of pleading Ordinances ; 
 Requisites of Complaints to enforce Ordinances ; Construction, 
 Defences, Evidence, etc. — sees. 408-422. 
 
 Definition, Creneral Nature, and Common Law Requisites of 
 
 Ordinances. 
 § 307. (244) Definition. — Under the general ievraoi ordinances 
 have been sometimes included all the regulations by which a cor- 
 poration is governed, including special charter or statute regula- 
 tions, as well as by-laws. In this country, the term " ordinance " 
 is not iisually applied, if ever, to charters or acts of the legislature 
 respecting municipal corporations, regulating their powers and 
 
§ 307.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 321 
 
 mode of action, but is limited in its application to the acts, in 
 the nature of local laws, passed by the proper assembly or gov- 
 erning body of the corporation. Indeed, in general and profes- 
 sional use the term ordinance is almost, if not quite, equivalent in 
 meaning to the term hy-law, and is the word moat generally used 
 to denote the by-laws adopted by municipal corporations. Ac- 
 cording to Lord Coke, the word by or bye signifies a habitation ; 
 and thence a by-law in England, and a by-law or ordinance in this 
 country, may be defined to be the law of the inhabitants of the 
 corporate place or district, made by themselves or the authorized 
 body, in distinction from the general law of the country or the 
 statute law of the particular state.^ 
 
 1 Wille. 73 ; 2 Kyd, 95, 98. 
 
 Definition and Nature of Ordinances or 
 By-Laws. — In a case in Massachusetts, 
 denying to towns in that state power un- 
 der the statute to prohibit by ordinance 
 the sale of intoxicating liquor, Mr. Chief 
 Jaatice Shaw observed that the term 
 " by-law " has a limited and peculiar mean- 
 ing, and is used to designate, such ordi- 
 nances or regulations which a corporation, 
 as one of its legal incidents, has power to 
 make with respect to its own members 
 and its own concerns. In respect to mu- 
 nicipal and quasi corporations, this mean- 
 ing has been somewhat extended, but 
 even here the word is used to designate 
 such ordinances and regulations as have 
 reference to legitimate and proper muni- 
 cipal or corporate purposes. There is a 
 broad distinction between the power of 
 a public corporation to make " by-laws " 
 and the general power to make " laws : " 
 authority to make the former does not 
 include the power to legislate upon gen- 
 eral subjects. Commonwealth w. Turner, 
 I Cush. (Mass.) 493. A municipal by-law, 
 according to the definition of a distin- 
 guished Knglish judge, is a rule obliga- 
 tory over a particular district, not being 
 at variance with the general laws of the 
 realm, and being reasonable and adapted 
 to the purposes of the corporation ; and 
 any rule or ordinance of a permanent 
 character which a corporation is empow- 
 ered to make, either by the common or 
 statute law, is a by-law. Per Parke, B., 
 19 Law J. (N. S), Q. B. 185. 
 
 Resolutions and Ordinances discrimi- 
 nated. — A resolution is an order of the 
 VOL. I. 21 
 
 council of a special and temporary char- 
 acter ; an ordinance prescribes a perma- 
 nent rule of conduct or government. 
 Blanchard v. Bissell, 11 Ohio St. 96, 103, 
 per Scott, J, Where the charter commits 
 the decision of a matter to the council 
 and is silent as to the mode, the decision 
 may be evidenced by a resolution, and 
 need not necessarily be by an ordinance. 
 State V. Jersey City, 3 Dutch. (N. J.) 493, 
 1859. In State v. Bayonne, 6 Vroom 
 (35 N. J. L.), 335, resolutions and ordi- 
 nances are discriminated, and the latter 
 said to require more solemnity than the 
 former. A resolution adopted by a city 
 council, not approved by the mayor, and 
 not published in the manner required by 
 the charter, has not tlie effect of an ordi- 
 nance. City of Central o. Sears, 2 Col. 588, 
 1875. The legislative powers of a city 
 council, as in fixing the compensation of 
 city officers (it was held, construing the 
 charter), must be exercised by ordinance, 
 when this is intended to be permanent. 
 Ih. A resolution has ordinarily the same 
 effect as an ordinance, as both are legisla- 
 tive acts. Sower v. Philadelphia, 35 Pa. 
 St. 231, 1860 ; Gas Co. v. San Francisco, 
 6 Cal. 190. Where the power to make 
 ordinances and by-laws is general, and 
 DO form in which these shall be enacted 
 or passed is prescribed, it was held tiiat 
 an ordinance containing a prohibition and 
 annexing a penalty was valid, notwith- 
 standing it purported by its terms to be a 
 resolution. In substance it was an ordi- 
 nance or regulation, and the form in which 
 it was passed did not make it void. Mu- 
 nicipality V. Cutting, 4 La. An. 365, 1849. 
 
322 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIL 
 
 § 308. (245) Authority delegated to Municipalities — Nature 
 of Ordinances -^— Bepeal. — Although the proposition that the legis- 
 lature of a state is alone competent to make laws is true, yet it 
 is also settled that it is competent for the legislature to delegate 
 to municipal corporations the power to make by-laws and ordi- 
 nances,^ with appropriate sanctions, which, when authorized, have 
 
 By one section of the charter the council 
 was authorized to malte " by-laws, ordi- 
 nances, resolutions, and regulations," and 
 by another " by-laws and ordinances " 
 were to be submitted to the mayor for 
 his approval, and it was held that there 
 was no such distinction as to require that 
 " by-laws and ordinances " must, and 
 " regulations and resolutions " need not, 
 be submitted to the mayor, to be approved 
 by him. Kempner v. Commonwealth, 40 
 Pa. St. 124. The words "regulation," 
 "resolution," and "ordinance," as used 
 in the charter, defined by Lowrie, C. J. lb. 
 Construction of particular charter pro- 
 visions when corporate purpose may be 
 expressed in the form of a resolution. 
 State V. Elizabeth (acceptance of dedica- 
 tion), 8 Vroom (37 N. J. L.), 432 ; State v. 
 Jersey City (building sewers), 3 Putch. 
 (N. J.) 493 ; lb. 185, 196 ; State v. Jersey 
 City (signature of mayor), 1 Vroom (30 
 N. J. L.), 148; State w. Trenton, 7 Vroom 
 (36 N. J. L.), 499, 503. Instances where an 
 ordinance was held essential. State v. 
 Bayonne (grading street), 6 Vroom (35 
 N. J. L.), 335; lb. 205; Cross v. Morris- 
 town (alteration of width of street and 
 sidewalk), 3 C. E. Green (N. J.), 305; 
 State V. Bergen (appointment of commis- 
 sioners to assess damages), 4 Vroom (33 
 N. J. L.), 39, 72 ; ante, sec. 258, note. 
 
 Mode of exercising Power, — Wliere 
 the power to do certain acts or pass cer- 
 tain ordinances is conferred upon the 
 council, but the particular mode of exer- 
 cising the power is not prescribed, tills 
 may be done by ordinance, and an}' mode 
 may be adopted which does not infringe 
 the charter or general law of the land. 
 Thus, for example, power was given to a 
 city " to levy and collect a, special tax," 
 not specifying the mode of collection. 
 Seld, that an ordinance requiring the 
 mayor to enforce the collection of the tax 
 by suit, in the nature of an action for 
 debt, was valid, as it did not violate the 
 
 charter or the general law. Cincinnati 
 V. Gwynne, 10 Ohio, 192 ; Markle v. 
 Akron, 14 Ohio, 686, 1846. Prescribed 
 mode essential. Crosse v. Morristown, 
 18 N. J. Eq. 305 ; post, ch. xix. 
 
 1 Perdue v. Ellis, 18 Ga. 586, 1855; St. 
 Paul 17. Coulter, 12 Minn. 41, 1866 ; Com- 
 monwealth V. Duquet, 2 Yeates (Pa.), 
 493; Hill <,-. Decatur, 22 Ga. 203; State 
 V. Clark, 8 Fost. (28 N. H.) 176, 
 1854; Milne v. Davidson, 5 Martin (La.), 
 586, 1827; Marble v. Akron, 14 Ohio, 
 686, 590, 1846 ; Mayor, etc. ». Morgan, 7 
 Martin (La. O. S.) 1, per Martin, J. ; Tri- 
 gally V. Memphis, 6 Coldw. (Tenn.) 382, 
 1869 ; Metcalf v. St. Louis, 11 Mo. 103, 
 1847. That such a power may be dele- 
 gated to municipal corporations is admit- 
 ted even in those states which deny the va- 
 lidity of what are known as Local Option 
 Laws. Wall, in re, 48 Cal. 279, 1874 ; 8. c. 
 17 Am. Rep. 425 ; ante, sec. 44, note ; 
 Gloversville v. Howell (local option as to 
 sale of intoxicating liquors), 70 N. Y. 
 287, 1877 ; Gilbert Elevated Railway Co. 
 in re, 70 N. Y. .361, 1877 ; Covington v. 
 East St. Louis, 78 III. 548, 1875. In 
 Strauss v. Pontiac, 40 111. 301, 1866, the 
 Supreme Court held that a provision in a 
 town charter forbidding any person from 
 doing a certain act, fixing the amount of 
 fine, and prescribing the penalty, was a 
 complete enactment of itself; that an or- 
 dinance to the same effect was void, and 
 that a party could be prosecuted only 
 under the charter, and not under the or- 
 dinance. In view of the general authority 
 given in the same charter to make all 
 ordinances necessary to carry into effect 
 the powers granted in the charter, the 
 correctness of this decision may admit of 
 fair debate, although it is undoubtedly 
 true that no ordinance is necessary where 
 the prohibition in the charter is complete, 
 the penalty fixed, and the remedy pre- 
 scribed. Ashton V. Ellsworth, 48 III. 299. 
 
I 308.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 323 
 
 the force, in favor of the municipality and against persons bound 
 thereby, of laws passed by the legislature of the state.' A penalty 
 
 • Heland o. Lowell, 3 Allen (Mass.), 
 407, 1862; Church v. City, etc., 6 Cow. 
 (N. Y.) 538, 1826; St. Louis v. Boffinger, 
 19 Mo. 13, 15, per Gamble, J.; St. Louis v. 
 Bank, 49 Mo. 574 ; Jones v. Ins. Co., 2 
 Daly (N. Y.), 807; McDermott v. Board 
 of Police, 5 Abb. (N. Y.) Pr. 422. 1857; 
 Mason v. Shawneetown, 77 111. 53.3, 1876 ; 
 Des Moines Gas Co. v. Des Moines (city 
 of), 44 Iowa, 508 ; s. c. 24 Am. Rep. 756, 
 citing text; State v. Tryon, 39 Conn. 
 183, 1872 ; Indianapolis v. Indianapolis 
 Gas Co., 66 Ind. 396, citing text; Starr 
 V. Burlington, 45 Iowa, 87. A city 
 council is "a miniature general assem- 
 bly, and their authorized ordinances have 
 the force of laws passed by the legisla- 
 ture of the state." Per Scott, J., Taylor 
 i\ Carondolet (forfeiture clause in lease), 
 
 22 Mo. 105, 1855; St. Louis v. Foster, 52 
 Mo. 513, 1873. In Hopkins o. Mayor of 
 Swansea, 4 M. & W. 621, 640, Lord Abin- 
 ger said : " The by-law has the same 
 effect within its limits, and with respect 
 to the persons upon whom it lawfully 
 operates, as an act of parliament has 
 upon the subjects at large." Valid ordi- 
 nances of corporations are as binding on 
 the corporators and inhabitants of the 
 place as the general laws of the state 
 upon the citizens at large. Milne v. 
 Davidson, 5 Martin (La.), 586, 1827. 
 And therefore it has been held that 
 contracts between the inhabitants of a 
 city, in violation of the express provis- 
 ions of a valid ordinance of a municipal 
 corporation, are illegal, and cannot be 
 enforced. Milne •;. Davidson' (lease of 
 house for private hospital), 5 Martin 
 (La.), 586, 1827; Heland v. Lowell, 3 
 Allen (Mass.), 407, 1867; but compare 
 Baker w. Portland, 58 Me. 199; s. c. 10 
 Am. Law Reg. (N. S.) 559, and see 
 Judge Redfidd's note. And see also Hee- 
 ny V. Sprague, 11 R. I. 456, 1877; s. c. 
 
 23 Am. Rep. 502. Holding that no pri- 
 vate action for damages impliedly exists 
 in favor of a person injured by a breach 
 of duty imposed by a municipal by-law 
 against the person who violated tlie by- 
 law. A distinction between by-laws and 
 statutes suggested and discussed by Dur- 
 fee, C J. ; see Johnson v. Simonton, 43 
 
 Cal. 242, 1872. The courts will not en- 
 join the passage of unauthorized ordi- 
 nances, and will ordinarily act only when 
 steps are taken to make them available. 
 Chicago V. Evans, 24 111. 52, 1860 ; Smith 
 e. McCarthy, 66 Pa. St. 369 ; Des Moines 
 Gas Co. 1). Des Moines (city of), 44 Iowa, 
 506, 1870 ; 8 c. 24 Am. Rep. 766, distin- 
 guishing Davis V. Mayor, 14 N. Y. 506 ; 
 People V. Sturtevant, 9 N. Y. 263. But 
 if a party is injuriously affected by 
 an ordinance, he may have its validity 
 judicially determined before it is at- 
 tempted to be executed. State v. Fater- 
 son, 34 N. J. Law, 163 ; State v. Jersey 
 City, lb. 31, 390, 1870. But see Sheridan 
 ... Calvin, 78 III. 237. 
 
 The jurisdiction of every council is 
 not only to be confined to the municipality 
 the council represents, but is to be exer- 
 cised, when not otherwise provided for, 
 by by law. When a corporation is duly 
 erected, the law tacitly annexes to it the 
 power of making by-laws or private stat- 
 utes. This power is included in every 
 act of incorporation ; for, as is quaintly 
 observed by Blackstone, " as natural rea- 
 son is given to the natural body for the 
 governing it, so by-laws or statutes are a 
 sort of political reason to govern the body 
 politic." 1 Bl. Com. 476. Though the 
 power to make by-laws is unquestion- 
 ably an incident of every corporation, 
 it is rarely left to implication ; but is 
 usually, as in the present case, conferred 
 by the express terms of the act of par- 
 liament. A by-law is a rule obligatory 
 over a particular district, not being at 
 variance with the general laws, and 
 being reasonably adapted to the pur- 
 poses of the corporation. Gosling ». 
 Veley a al., 19 L. J. Q. B. N. S. 135. A 
 by-law has the same force, within the 
 limits of the municipality, and with re- 
 spect to the persons upon whom it law- 
 fully operates, as an act of parliament 
 has upon the people at large. Hopkins v. 
 Swansea, 4 M. & W. 621 ; The Queen o. 
 Osier, 32 Upper Can. Q. B. 224. The 
 courts upon general principles recognize 
 judicially what municipal councils are 
 competent to do, and hold that it is not 
 necessary for them to recite in a by-law 
 
324 MUNICIPAL CORPORATIONS. [CH. XII. 
 
 imposed by an ordinance authorized by the legislature for the 
 doing of certain specified acts amounts to a prohibition, and the 
 prohibited acts become thereby unlawful.^ 
 
 § 309. (246) Ordinances being among the most important 
 and solemn acts of a corporation, it is essential to their validity 
 that they shall be adopted hy the proper body, duly assembled, and 
 in the manner prescribed by the charter. What is necessary to 
 constitute a valid corporate meeting, and the manner of perform- 
 ing valid corporate acts, are subjects treated of in another chap- 
 ter.2 When the mode of enacting ordinances is prescribed, it 
 must be pursued. Thus, if the charter provides that no by-law 
 shall be passed unless introduced at a previous regular meeting, 
 this is a restriction on the power, and must be observed ; and, 
 accordingly, an ordinance for opening a street was adjudged void, 
 on the ground that the name of one of the commissionera was 
 changed without laying the ordinance over until another meeting .^ 
 So where by the charter the mayor is part of the law-making 
 power, his concurrence in legislative action is essential to its valid- 
 ity.* Municipal ordinances, otherwise valid, may, like an act of 
 the legislature, be adopted to take effect in future and upon the 
 happening of a contingent event.® The ordaining clause of an 
 
 all that is requisite to show that they cited. Construction of similar restriction 
 
 have proceeded regularly in passing it. requiring previous publication. Douglass 
 
 Grierson v. Ontario, 9 Upper Can. Q. B. m re, 46 N. Y. 42; N. Y. etc. School, in re, 
 
 623; Fisher w.Vaughan, 10 Upper Can. Q. 47 N. Y. 556; Dubuque v. Wooton, 28 
 
 B. 492; The King v. Harrison, 3 Burr. Iowa, 571. Where a statute requires that 
 
 1328; Roman Catholic Church v. Balti- no vote shall he taken upon an assessment 
 
 more, 6 Gill (Md.), 394; Stuyvesant v. ordinance or resolution until it has been 
 
 New York, 7 Cow. (N. Y.) 588; Harr. published three days, a resolution passed 
 
 Munic. Manual, 4th ed. without such prior publication was held 
 
 1 Johnson o. Simonton (swill milk or- illegal, and the assessment founded upon 
 dinance of San Francisco), 43 Cal. 242, it void. Addison Smith, tn re, 52 N. Y. 
 1872. Thus a city ordinance, duly au- 526. The provision is held to be manda- 
 thorized, imposing a penalty for feeding tory. Phillips, in re, 60 N. Y. 16; Little 
 distillery slops to cows, and also for vend- in re, 60 N. Y. 343 ; Anderson, in re, 60 
 ing the milk of cows so fed, amounts to an N. Y. 457 ; Douglass, in re, 45 N. Y. 42 ; 
 authoritative prohibition in both respects ; State v. Hoboken, 38 N. J. L. 110 ; State 
 and the acts thus prohibited are illegal. /&. o. Smith, 22 Minn. 218. 
 
 2 Ante, chap. x. 4 Saxton v. Beach, 50 Mo. 488, 1872; 
 « State V. Bergen, 33 N. J. Law, 39, Saxton .,. St. Joseph, 60 Mo. 153, 1875; 
 
 1868, distinguished from State v. Jersey therefore » resolution without mayor's 
 
 City, 2 Dutch. (N. J.) 448, where the vari- signature ordering local improvements is 
 
 ance was immaterial. See Cooley Const, a nullity. lb. Irvin v. Devors, 65 Mo. 
 
 Lim. 189, as to constitutional require- 625, 1877. 
 
 ment that bills shall be read on successive » Baltimore v. Clunet, 23 Md. 449, 
 
 days before their passage and cases there 1865 ; Railway Company v. Baltimore, 21 
 
§ 310.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 325 
 
 ordinance has been held, under the circumstances stated in the 
 note, not to be essential to its validitj^, although the charter con- 
 tains a provision requiring such a clause and. prescribing the 
 form, the court considering the provision to be directory only.^ 
 
 § 310. (247) In the absence of required record evidence of the 
 passage of an ordinance, it is not competent, ejccept possibly under 
 peculiar circumstances, to establish its adoption by extrinsic testi- 
 mony ;* but where unanimity is necessary to legal authority to 
 make an order, aud an order is entered, it will be presumed, when 
 the contrary does not appear, that it was made with the required 
 unanimity.^ 
 
 Md. 93, 1863; State v. Kirkley, 29 Md. 
 85, 1868 ; ante, sec. 44. See Troy v. Atchi- 
 son, etc. Railroad Co., 13 Kan. 70, 1874 ; 
 sec. 300, note. Anotlier common but 
 erroneous belief is, that a municipal coun- 
 cil can by order or resolution do that 
 which, if done through a. by-law or ordi- 
 nance would be illegaL This it cannot 
 do. No municipal council can do that 
 informally which it has no power to do 
 directly and formally. Daniels ;;. Bur- 
 ford, 10 Upper Can. Q. B. 478. A by-law, 
 order, or resolution which revives an illegal 
 by-law is of course itself illegal. Canada 
 Co. V. Oxford, 9 Upper Can. Q. B. 567. An 
 order or resolution duly signed and sealed 
 is virtually a by-law or ordinance, but 
 many orders and resolutions pass by mere 
 vote, without being thus autlienticated. 
 The municipal rules of proceeding gen- 
 erally require more formal steps to be 
 taken, in passing a by-law or ordinance, 
 than in adopting an order or resolution. 
 Municipal corporations, however, may 
 become liable as wrong-doers for things 
 done by direction of the councils without 
 by-laws. Croft v. Peterborough, 5 Upper 
 Can. C. P. 35 ; Nevill v. Ross, 22 Upper 
 Can. C. P. 487 ; Darby v. Crowland, 38 
 Upper Can. Q. B. 338 ; Lewis v. City of 
 Toronto, 89 Upper Can. Q. B. 843. -The 
 power to make by-laws or ordinances 
 necessarily supposes the power to enforce 
 them by pecuniary penalties, competent 
 and proportionable to the offence. In 
 construing a by-law, etc., the court will 
 look at the whole of it, to ascertain its 
 meaning, and construe one part with an- 
 other or other parts, so as, if possible, 
 to give full effect to the whole. Cameron 
 
 and East Nissouri, m re, 13 Upper Can. 
 Q. B. IflO. 
 
 1 St. Louie i>. Foster, 52 Mo. 518, 1873. 
 The Supreme Court of Missouri having 
 decided in the Pacific Railroad i>. Gov- 
 ernor, 23 Mo. 353, and Girardeau v. 
 Riley, 52 Mo. 424, 1873, that the validity 
 of a statute, duly authenticated, could not 
 be impeached by showing a departure 
 from the forms prescribed in the consti- 
 tution in the passage of laws, applied the 
 same principle to the passage of ordi- 
 nances. Therefore, although the charter 
 required that the style of ordinances shall 
 be, " Be it ordained," etc., yet this is di- 
 rectory ; and omitting the enacting clause, 
 or using an imperfect enacting clause 
 does not invalidate the ordinance. St. 
 Louis V. Foster, supra. As to the con- 
 flicting decisions in respect to whether the 
 forms prescribed in constitutions to be 
 observed in the enactment of laws are 
 imperative or directory only, see Cooley 
 Const. Lim. ch. vi. 
 
 2 Covington v. Ludlow, 1 Met. fKy.) 
 295, 1858. See ante, sees. 301, 266, note, 
 297; post, sec. 385. 
 
 ' Lexington v. Headley, 5 Bush (Ky.), 
 508, 1869; Covington v. Boyle, 6 Bush 
 (Ky.), 204, 1869 ; MoCorraick v. Bay City, 
 23 Mich. 457, 1871; see Steckert v. East 
 Saginaw, 22 Mich. 104; post, sec. 800. 
 The final action of a city council, or other 
 deliber^ive body, on any measure, is 
 shown by its adjournment thereon, the 
 public promulgation of its action, or sub- 
 sequent proceedings inconsistent with a 
 purpose to review. State v. Yan Buskirk, 
 40 N. J. L. 463. 
 
326 MUNICIPAL CORPORATIONS. [CH. XIL 
 
 § 811. It is well settled that the judicial branch of the- gov- 
 ernment cannot institute an inquiry into the motives of the legis- 
 lative department in the enactment of laws. Such an inquiry 
 would not only be impracticable in most cases, but the assump- 
 tion and exercise of such a power would result in subordinating 
 the legislature to the courts. ^ In analogy to this rule it is doubt- 
 less true that the courts will not, in general, inquire into the 
 motives of the council in passing ordinances.^ But it would be 
 disastrous, as we think, to apply th# analogy to its full extent. 
 Municipal bodies, like the directories of private corporations, 
 have too often shown themselves capable of using their powers 
 fraudulently, for their own advantage or to the injury of others. 
 We suppose it to be a sound proposition that their acts, whether 
 in the form of resolutions or ordinances, may be impeached for 
 fraud at the instance of persons injured thereby. 
 
 § 312. (248) Accordingly, in Ohio, in a case where the legis- 
 lature chartered a gas company, reserving the power of control, 
 and subsequently empowered the city council to regulate the price 
 of gas, the court considered the intention to be to limit the com- 
 pany to a fair and reasonable price, and that it must be fairly 
 exercised ; and if, in the colorable exercise of the power, a majority 
 of the members, for a fraudulent purpose, combined to iix the 
 price at a rate at which they knew it oould not be made and sold 
 without loss, their action would not bind the company, and in 
 such a case, their good faith, it was held, might be inquired into.* 
 
 § 313. Where the officers of a municipal corporation are in- 
 vested witii legislative powers, they are exempt from individual 
 
 1 Cooley Const. Lira. 186, 187, where Fletcher ». Peck, 6 Cranch, 87 ; Bank v. 
 
 many of the cases are collected. United States, 1 G. Greene (Iowa), 553. 
 
 ^ Freeport v. Marks, 59 Pa. St. 253; The courts will not inquire, even on the 
 
 Buell V. Ball, 20 Iowa, 282 (collateral ac- complaint of the state, into the motives 
 
 tion between third persons). It being which governed members of the legis- 
 
 well settled that the courts may decide lature in the enactment of a law, or allow 
 
 upon the reasonableness of ordinances, to be.shown, for the purpose of defeating 
 
 they will in goneral judge of these, what- the operation of the law, that it was 
 
 ever their purpose, by considering their passed by fraud, corruption, and bribery 
 
 nature and effect, rather than by institut- of the members. Wright «. Defrees, 8 
 
 ■ iiig an inquiry into the motives of the Ind. 298 ; followed, McCuUouh v. State, 
 
 members of the council ; although where 11 lb. 424,. 431, 1858; s. p. Sunbnry, etc., 
 
 the latter is material, it may in the au- Railroad Co. v. Cooper, 7 Am. Law Reg. 
 
 thor's judgment be done. 158, 1858; Cooley Const. Lim. 135,136, 
 
 * State V. Cincinnati Gas Company, 18 186, 208. 
 Ohio St. 262, 1868, distinguished from 
 
§ 314.] 
 
 MUNICIPAL ORDINANCES OE BY-LAWS. 
 
 327 
 
 lidbUity for the passage of any ordinance within their authority, 
 and their motives in reference thereto will not be inquired into ; 
 nor are they individually liable for the passage of any ordinance 
 not authorized by their powers ; for such ordinance is void, and 
 need not be obeyed.^ 
 
 § 314. (249) Since a valid by-law never becomes obsolete, it re- 
 mains in force until repealed by the legislature or the corporation. 
 The power to make includes the power to repeal without refer- 
 ence to the people of the municipality.^ Tiie repeal cannot 
 operate retrospectively to disturb private rights vested under it.^ 
 Therefore, the legislature having authorized a religious corpora- 
 tion to establish a cemetery within the limits of a city, on obtain- 
 ing the consent of the city, and such consent having been given, 
 the city authorities cannot, after their consent has been acted 
 upon, repeal the resolutions giving it, and enjoin the religious cor- 
 poration from the use of the cemetery, unless, indeed, it is shown 
 to be an actual nuisance, detrimental to the health of the city, 
 in which case its police and governmental powers might doubtless 
 be exercised.* 
 
 1 Jones V. Loving, 55 Miss. 109 ; Paine 
 ». Boston, 124 Mass. 486; Freeport v. 
 Marks, 59 Pa. 257 ; Balcer v. State, 27 
 Ind. 485; Commrs. i.. Ducket, 20 Md. 
 468; Weaver v. Devendorf, 3 Denio (N. 
 Y.),117 ; Pike v. Megam, 44 Mo. 491. 
 
 2 ICansas City v. White, 69 Mo. 261 ; 
 Tlie King o. Ashwell, 12 East, 22 ; The 
 King 1). Bird, 13 Bast, 867 ; Great Western 
 Railway Co. and North Cayuga, in re, 23 
 Upper Can. C. P. 28 ; Bloomer v. StoUey, 
 6 McLean, 158 ; Santo et at. v. State of 
 Iowa, 2 Iowa, 165 ; Bank of Chenango v. 
 Brown, 28 N. Y. 467 ; Magee v. State, 4 
 Ind. 862; Rice v. Foster, 4 Harring. (Del.) 
 479 ; The People v. Collins, 3 Mich. 347. 
 
 » Rex V. Ashwell, 12 East, 22; 3 Terra 
 R. 198; The King v. Bird, 13 East, 879; 
 Terre Haute v. Lake, 43 Ind. 480, 1873 ; 
 State V. City Qlerk, etc., 7 Ohio St. 355 ; 
 Stoddard v. GUman, 22 Vt. 568 ; Pond v. 
 Negus, 3 Mass. 230; ante, ch. x. ; State v. 
 Graves, 19 Md. 851, 1862; Bigelow v. Hill- 
 man, 37 Me. 52; Reifif v. Conner, 5 Eng. 
 (10 Ark.) 241 ; Road, in re, 17 Pa. St. 71, 
 75; Cunningham v. Almonte, 21 Upper 
 Can. C. P. 459 ; Railroad Co., etc., in re, 23 
 
 UpperCan. C. P.28. An act changing an 
 incorporated town into a city does not of 
 itself repeal pre-existing ordinances. Per 
 Strong, J., Trustees of Academy v. Erie, 
 81 Fa. St. 515, 1858 ; ante, sec. 85, note. 
 Subsequent constitutional provision or legis- 
 lative enactment, in conflict with existing 
 by-laws, renders the latter void. Mobile 
 D. Dargan, 45 Ala. 310, 1871. 
 
 * New Orleans o. St. Louis Church, 11 
 La. An. 244, 1856, distinguished from 
 Presbyterian Church /.Mayor, 5 Cow. (N. 
 y.) 538 ; Musgrove v. Catholic Church, 10 
 La. An. 431 ; ante, sec. 97. The repeal of 
 an ordinance puts an end to a pending prose- 
 cution under the repealed ordinance, unless 
 there be a saving clause. The contrary 
 rule as to state statutes held not to apply 
 to by-laws or ordinances. Naylor v. 
 Galesburg, 56 III. 285, 1870 ; Kansas City 
 0. Clark, 68 Mo. 588. The fact that an 
 ordinance directing a certain street im- 
 provement to be made was repealed, 
 held, to be conclusive in favor of a per- 
 petual injunction, restraining the con- 
 tractor or the city from proceeding. 
 Kaime v. Harty, 4 Mo. App. 357. 
 
328 MUNICIPAL CORPORATIONS. [CH. XIL 
 
 § 315. (250) Mode of conferring the Power — Construction of 
 Grants of Authority. — Municipal charters, or incorporating acts, 
 are sometimes silent as to the power to pass by-laws or ordinances ; 
 and where this is the case, the municipal body has the power, 
 incidental to all corporations, to enact appropriate by-laws. Oc- 
 casionally, the charter or incorporating act, without any specific 
 enumeration of the purposes for which by-laws may be made, 
 contains a general and comprehensive grant of power to pass all 
 such as may seem necessary to the well-being and good order of 
 the place. More frequently, however, the charter or incoi-porat- 
 ing act authorizes the enactment of by-laws in certain specified 
 cases and for certain purposes ; and after this specific enumera- 
 tion a general provision is added, that the corporation may 
 make any other by-laws or regulations necessary to its welfare, 
 good order, etc., not inconsistent with the constitution or laws of 
 the state. This difference is essential to be observed, for the 
 power which the corporation would possess under what may, for 
 convenience, be termed, " the general welfare clause," if it stood 
 alone, may be limited, qualified, or, when such intent is manifest, 
 impliedly taken away by provisions specifying the particular pur- 
 poses for which by-laws may be made. It is clear that the gen- 
 eral clause can confer no authority to abrogate the limitations 
 contained in special provisions. 
 
 § 316. When there are both special and general provisions, the 
 power to pass by-laws under the special or express grant can only 
 be exercised in the cases and to the extent, as respects those 
 matters, allowed by the charter or incorporating act ; and the 
 power to pass by-laws under the general clause does not enlarge 
 or annul the power conferred by the special provisions in relation 
 to their various subject matters, but gives authority to pass by- 
 laws, reasonable in their character, upon all other matters within 
 the scope of their municipal authoritj', and not repugnant to the 
 constitution and general laws of the state.^ And it has been very 
 
 1 State V. Ferguson, 33 N. H. 424, therefore not sustainable under the gen- 
 1856, where this subject is ably treated eral welfare clause of the charter, 
 in a judgment delivered by Mr. Justice " The power to make by-laws, when 
 Foster, holding a by-law of the city of not expressly given, is implied as an inci- 
 Concord, in relation to the sale of intoxi- dent to the very existence of a corpora- 
 eating liquor, invalid as contravening the tion ; but in the case of an express grant 
 special provisions of the charter, and of the power to enact by-laws limited to 
 
§ 317.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 329 
 
 properly held that a special grant of power to a municipal cor- 
 poration to adopt ordinances on enumerated subjects connected 
 with municipal concerns is in addition to the incidental power of 
 the corporation,! 
 
 § 317. (251) Ordinances cannot enlarge or change the Charter or 
 Statute. — Since all of the powers of a corporation are derived from 
 the law and its charter, it is evident that no ordinance or hy-law of 
 a corporation can enlarge, diminish, or vary its powers? A similar 
 
 certain specified cases and for certain pur- 
 poses, the corporate power of legislation 
 is confined to the objects specified, all 
 others being excluded by implication." 
 Per Sawyer, J., arguendo, in State «. Fer- 
 guson, 33 N. H. 424, 430, 1856 ; citing 2 
 Kyd on Corp. 102; Angell & Ames on 
 Corp. 177; and Child v. Hudson's Bay 
 Co., 2 P. Wms. 207. The true rule in 
 such cases mai/, perhaps, be correctly ex- 
 pressed to be, that the enumeration of 
 special cases does not, unless the intent 
 be apparent, exclude the implied power 
 any further than necessarily results from 
 the nature of the special provisions. 
 Heisembrittle v. Charleston, 2 McMuUen 
 (So. Car.), 233; Wadleigh v. Gilman, 3 
 Fairt. (12 Me.) 408; State v. Clark, 8 
 Fost. (28 N. H.) 176, and comments in 33 
 N. H. 432; Stat« «. Freeman, 38 N. H. 
 426 ; Commonwealth e. Turner, 1 Cush. 
 (Mass.) 498; Collins v. Hatch, 18 Ohio, 
 523; see New Orleans v. Philipl (taxa- 
 tion), 9 La. An. 44; Indianapolis v. In- 
 dianapolis Gas Co., 66 Ind. 396, citing 
 text. 
 
 In Georgia, the Superior Courts adopt 
 the following as the true rule for ascer- 
 taining the extent of the power of a city to 
 pass ordinances. " The city council is 
 restrained to such matters, whether spe- 
 cially enumerated or included under gen- 
 eral grant, as are indifEerent in themselves, 
 such matters as are free from constitu- 
 tional objection and have not been the 
 subject of general legislation ; or, as it is 
 expressed in the charter, are not repug- 
 nant to the constitution or laws of the 
 land." Dubois v. Augusta (health ordi- 
 nance), Dudley (Ga.) Rep. 30, 1831; 
 Williams v. Augusta (powder ordinance), 
 4 Ga. 809, 514, 1848. Power tp pass 
 necesiary by-laws is incidental, but this 
 
 power is limited not only by the terms, 
 but the spirit and design, of the charter, 
 and the general principles and policy of 
 the common law. Taylor v. Griswold, 2 
 Green (N. J.), 222, 1834 ; Mount Pleasant 
 V. Breeze, 1 1 Iowa, 399, 1860, per Wright, 3. 
 A power to pass ordinances to " im- 
 prove the morals and order" of tlie peo- 
 ple does not authorize an ordinance to 
 " punish " the offence of keeping houses 
 of ill-fame. Whether the legislature can 
 constitutionally confer power upon cities 
 to punish acts made crimes by the laws 
 of the state, not decided. Chariton v. 
 Barker, Iowa, 1880, Beck, J.; s. c. 11 
 Cent. Law J. 358. 
 
 1 State V. Morristown, 33 N. J. L. 
 57, 1868. Depue, 3. in his opinion, dis- 
 tinguishes such a case from Norris v. 
 Staps, Hobart, 210, where the corporation 
 was created by the Crown, and where it 
 was held that a special clause in the let- 
 ters patent, authorizing the corporate body 
 (a fellowship of weavers) to make by- 
 laws, did not add to implied powers, and 
 that its by-laws were subject to the gen- 
 eral law of the realm and subordinate to 
 it. " But," he adds, " a special grant of 
 power to a municipal corporation is an 
 entirely different thing ; it is a delegation 
 of authority to legislate by ordinance on 
 the enumerated subjects, and does add to 
 the powers incident to the creation of the 
 corporation. The numerous instances, in 
 our own state, of the grant of such 
 powers in relation to the opening and im- 
 provement of streets, the making of 
 sewers, and the assessment of taxes, 
 afford illustrations of this distinction. 
 76. 62. 
 
 2 Thompson v. Carroll, 22 How. 422, 
 1859 ; Andrews o. Insurance Co., 37 Me. 
 256, 1854 ; Thomas v. Richmond, 12 WaU 
 
330 
 
 MUNICIPAL COEPORA.TIONS. 
 
 [CH. xn. 
 
 rule obtains in England, where it is held that neither the king's 
 charter nor any by-law can introduce an alteration in rules which 
 have been prescribed to a corporation by an act of parliament.* 
 By-laws are, in their nature, strictly local, and subordinate to the 
 general laws. 
 
 § 318. (252) Ordinance need not recite Authority to pass 
 it. — It is not essential to the validity of an ordinance executing 
 powers conferred by the legislatui;e that it should state the 
 power in execution of which the ordinance is passed. If it state 
 no particular power as its basis, it will be judicially regarded as 
 emanating from that power which would have warranted its 
 passage. If two such powers exist, it may be imputed to either, 
 in conformity to which its provisions and prerequisites show 
 that it has been adopted. If, in these respects, in accordance 
 with both, no injustice can result in regarding it as the offspring 
 of both or either of the powers.^ 
 
 849, 1871. " A power vested by legisla- 
 tion in a city corporation, to make by- 
 laws for its own government and the 
 regulation of its own police, cannot be 
 construed as imparting to it the power to 
 repeal the [general] laws in force, or to 
 supersede their operation by any of its 
 ordinances. Such a power, if not ex- 
 pressly conferred, cannot arise by mere 
 implication, unless the exercise of the 
 power given be inconsistent with the pre- 
 vious law, and does necessarily operate 
 as its repeal pro tanto. Nor can the pre- 
 sumption be indulged, that the legislature 
 intended that an ordinance passed by the 
 city should be superior to, or take the 
 place of, the general law of the state 
 upon the same subject." Simpson, C. J., 
 March v. Commonwealth, 12 B. Mon. 
 (Ky.) 25, 29, 1851. " Huckster " means a 
 petty dealer or retailer of small articles 
 of provisions, etc., and an ordinance can- 
 not enlarge the ordinary meaning so as 
 to embrace " any person not a farmer or 
 butcher who should sell, or offer for sale, 
 any commodity not of his own manu- 
 facture," and subject such person to a 
 penalty; it not being, says Ranney, J., 
 "part of the franchise of municipal cor- 
 porations to change the meaning of Eng- 
 lish words." Mayor v. Cincinnati, 1 Ohio 
 St. 268, 272, 1853. "Butcher" defined. 
 
 Henback v. State, 53 Ala. 523, 1875; s. c. 
 25 Am. Rep. 650 ; 18 Alb. Law Jour. 364. 
 
 1 Kex V. Miller, 6 Term R. 277 ; Rex 
 V. Barber Surgeons, 1 Ld. Raym. 585. It 
 has even been said that the general as- 
 sembly cannot authorize a municipal cor- 
 poration to repeal, by ordinance, a statute 
 of the state. Haywood v. Mayor, etc., 12 
 6a. 404, per Lumpkin, J. But it may pro- 
 vide that on the passage of an ordinance 
 of a certain character, the state law on 
 the subject shall not be in force in the 
 corporate limits. State v. Binder, 38 Mo. 
 450; post, cli. xxiii. 
 
 2 PerDorsey, C. J., Methodist P. Church 
 V. Baltimore, 6 Gill (Md.), 391, 1848. 
 Under power to pass an ordinance if 
 found necessary, the necessity for its enact- 
 ment, being implied from its mere pas- 
 sage, need not be recited in the ordinance, 
 nor averred in proceedings to enforce it. 
 Stuyvesant v. Mayor, etc. of New York, 
 7 Cow. (N. T.) 588 ; s. p. Young v. St. 
 Louis, 47 Mo. 492, 1871. This case re- 
 affirmed in Kiley v. Forsee, 57 Mo. 890, 
 1874. But the charter may be imperative 
 in requiring the necessity to be expressed 
 by ordinance or resolution; so held in 
 Hoyt K. East Saginaw, 19 Mich. 39, 1869. 
 So, in England it is not necessary that 
 the preamble to a by-law should state the 
 reasons for making it. Rex v. Harrison, 
 
§ 319.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 331 
 
 § 319. (253) Must be Reasonable and Lawful. — In England, 
 the subjects upon which by-laws may be made were not usually 
 specified in the king's charter, and it became an established 
 doctrine of the courts that every corporation had the implied or 
 incidental right to pass by-laws ; but this power was accompanied 
 with these limitations, namely, that every by-law must be reason- 
 able, not inconsistent with the charter of the corporation, nor 
 with any statute of parliament, nor with the general principles of 
 the common law of the land, particularly those having relation 
 to the liberty of the subject or the rights of private property.^ In 
 this country the courts have often affirmed the general incidental 
 power of municipal corporations to make ordinances, but have 
 always declared that ordinances passed in virtue of the implied 
 power must be reasonable, consonant with the general powers 
 and purposes of the corporation, and not inconsistent with the 
 laws or policy of the state.^ 
 
 3 Burr. 1328. See, also, Grierson v. On- 
 tario, 9 Upper Can. Q. B. 623 ; Fisher v. 
 Vaughan, 10 Upper Can. Q. B. 492. If a 
 municipal corporation attempt to act ac- 
 cording to a statute not in force this does 
 not invalidate their proceedings, if the 
 same are in accordance with existing 
 statutes. State «. Jersey City, 8 Dutch. 
 (N. J.) 493. 
 
 ' Sutton's Hospital Case, 10 Eep. 31 a; 
 Feltmakers v. Davis, 1 Bos. & P. 98, 100; 
 Norris ». Stops, Hob. 211 ; Kex v. Maid- 
 stone, 3 Burr. 1837 ; Com. Dig. Franch. 
 F. 10; London ». Vanacre, 1 Ld. Raym. 
 496; 2 Kyd, ch. iv. sec. 10, p. 95, and 
 cases cited ; Bac. Abr. tit. By4aw. 
 
 * Must he reasonable. Kip v. Patter- 
 son, 2 Dutch. (N. J.) 298; Dayton v. 
 Quigley (citing text), 29 N. J. Eq. 77, 
 1878 ; Commrs. v. Gas Co., 12 Pa. St. 318, 
 1859; Fisher «. Harrisburg, 2 Grant (Pa.) 
 Cases, 291, 1854 ; Commonwealth v. Rob- 
 ertson, 5 Cush. (Mass.) 438, 1850; Waters 
 V. Leech, 3 Ark, 110 ; Mayor v. Winfield, 
 8 Humph. (Tenn.) 767, 1848. Text ap- 
 proved. Frank, m re, 52 Cal. 606. Com- 
 monwealth V. Steffee, 7 Bush (Ky.), 161, 
 1870; People v. Throop, 12 Wend. (N. 
 T.) 183, 186, 1834; Mayor v. Beasley, 1 
 Humph. (Tenn.) 2.S2, 1839 ; State v. Free- 
 man, 88 N. H. 426, 1859 ; White v. Mayor, 
 etc., 2 Swan (Tenn.), 364, 1852; Pedrick 
 V. Bailey, 12 Gray (Mass.), 161 : Dunham 
 
 V. Rochester, 5 Cow. (N. Y.) 462; Clason 
 «. Milwaukee, 30 Wis. 316, 1872; Tug- 
 man 0. Chicago, 78 111. 405, 1875. An 
 ordinance requiring druggists to furnish 
 quarterly verified statements of the kind 
 and quantity of intoxicating liquors sold, 
 to whom, etc., was held unreasonable and 
 oppressive. Clinton (city of) v. Phillips, 
 58 m. 102; s. c. 11 Am. Rep. 52. 
 
 The trustees of public schools had stat- 
 utory authority to direct what branches 
 should be taught, and to adopt and en- 
 force all necessary rules and regulations 
 for the management and government of 
 schools. A candidate foj admission 
 passed a satisfactory examination in ev- 
 erything but grammar, and was refused 
 admission on that account. Held, a rule 
 or regulation denying him admission on 
 that account was unreasonable, and that 
 mandamus would lie to compel his admis- 
 sion to study the other branches. Trus- 
 tees V. People, etc., 87 111. 303; s. i-. Ruli- 
 son V. Post, 79 111. 567. 
 
 Ordinance may be shown to be un- 
 reasonable, as that one for building a side- 
 walk was unnecessary and oppressive, it 
 being located in an uninhabited portion of 
 the city and disconnected with any other 
 street or sidewalk. Corrigan v. Gage, 68 
 Mo. 541. 
 
 Must not conflict with the charter or stat- 
 ute, or be repugnant to fundamental rights. 
 
332 MUNICIPAL COEPORATIONS. [CH. XIL 
 
 § 820. (254) Must not be Oppressive. — The principle of law, 
 that ordinances passed under the general authority to enact all 
 such as will be necessary, must be reasonable, or they may be 
 void, is well illustrated by a case in Pennsylvania?- A municipal 
 corporation passed two ordinances in relation to a gas company, — 
 a private corporation, with a special charter authorizing the con- 
 struction and maintenance of suitable gas-works within the limits 
 of the municipal corporation, and the use of the streets for the lay- 
 ing down of pipes. The first ordinance prohibited the gas company 
 from opening paved streets from December to March in each 
 year, for the purpose of laying gas mains. This ordinance the 
 court considered to be reasonable, in view of the difficulty of re- 
 pairing the paved streets during the winter months. And the 
 other ordinance prohibited the gas company from opening a paved 
 street at any time, for the purpose of laying pipes from the main 
 to the opposite side of the street. The court say : " The effect 
 of this ordinance is to compel the company to construct two 
 mains, one on each side of the street, instead of one ; thereby 
 materially increasing the expense to the company, and conse- 
 quently enhancing the price of gas to the inhabitants of the dis- 
 trict." And this ordinance was declared to be void. So, where 
 the city owns water-works, its by-laws in respect to the supply of 
 
 Dubois ». Augusta (health ordinance), Coldw. (Tenn.) 205; City Council «. Ben- 
 Dudley (Ga.) Kep. 30, 1831; Williams v. jamin, 2 Strob. (South Car.) 608; City 
 Augusta (powder ordinances), 4 Ga. 509, Council v. AherDS,4/i. 241 ; Heisembrittle 
 1848; Adams v. Mayor, etc. (liquor stat- Ads. o. City Council, 2 McMul. (South 
 ute), 29 Ga. 56; Taylor v. Griswold, 2 Car.) 233; City Council v. Goldsmith, 2 
 Green (N. J.^, 222, 1834; New Orleans o. Speer (South Car.), 435; State v. Welch, 
 Fhilipi (taxation), 9 La. An. 44; Perdue 36 Conn. 215. 
 
 V. Ellis (lic[uor traffic), 18 Ga. 586; Hay- An ordinance prohibiting any oaciioneer 
 
 wood V. Mayor, 12 Ga. 404; Paris «. Gra- to make any sale "except to the highest 
 
 ham (tax on dram-shops), 33 Mo. 94; St. bidder" was held void for want of legis- 
 
 Louis V. Cafferata, 24 Mo. 94; St. Louis lative or charter authority to enact it. 
 
 V. Bentz, 11 Mo. 61 ; Carr v. St. Louis (fee of Martin, in re, 27 Ark. 467, 1872. An ordi- 
 
 officers), 9 Mo. 190, 1845 ; Marietta n. Fear, nance prohibiting heavy awnings over side- 
 
 ing (estray animals), 4 Ohio, 427, 1831 ; walks, without consent of municipal au- 
 
 Collins V. Hatch (animals at large), 18 thorities, is reasonable and valid. Fedrick 
 
 Oliio, 523, 1849 ; Mayor, etc. of New York v. Bailey, 12 Gray (Mass.), 161. Under 
 
 V. Nichols (inspection laws), 4 Hill (N. the general welfare clause an ordinance 
 
 Y.),209, 1843; Commonwealth i>. Turner forbidding sale of lemonade, cake, etc. at 
 
 (liquor traffic), 1 Cush. (Mass.) 493, 1848; a temporary stand without paying a 
 
 Phillips V. Wickam, 1 Paige (N. Y. ) Ch. license tax is unauthorized and unreason- 
 
 690 ; Howard v. Savannah, T. Charlt. R. able. Barling v. West, 29 Wis. 307 ; s. o. 
 
 178; Smith v. Knoxville, 3 Head (Tenn.), 9 Am. Rep. 576 ; post, sec. 387. 
 
 245, 1859 ; Cowen i'. West Troy, 43 Barb. ' Commissioners of North Liberties v. 
 
 (N. y.) 48, 1864; Petersfield v. Viokers, 8 Gas Co., 12 Pa. St. 318, 1849. 
 
§ 321.] MUNICIPAL ORDINANCES OK BY-LAWS. 333 
 
 water to the citizens must be reasonable ; and a supply cannot 
 be refused on the application of the owner because the tenant 
 was in arrears for water supplied to him while he occupied an- 
 other house owned by another landlord.^ 
 
 § 821. (255) Courts will declare void ordinances that are op- 
 pressive in their character. Thus, the Supreme Court of Tennes- 
 see, in a judgment which reflects credit upon the tribunal that 
 pronounced it, declared void an ordinance of the city of Memphis 
 which ordered the arrest, imprisonment, and fine of all free ne- 
 groes who might be found out after ten o'clock at night, within 
 the limits of the corporation.^ So, an ordinance forbidding, under 
 penalty, the "knowingly associating with persons having the 
 reputation of being thieves and prostitutes," can only be sustained 
 by construing it to require proof of complicity, actual or intended, 
 with the persons named in the complaint as the reputed thieves 
 and prostitutes ; otherwise it would be void, as an invasion of the 
 right of personal liberty.^ So, where the common council of Bal- 
 timore, by ordinance, forbade any person to erect or maintain any 
 steam-engine or boiler without authority from the mayor, and au- 
 thorized the mayor, upon six months' notice, to revoke any permit 
 
 1 Dayton v. Quigley, 29 N. J. Eq. (2 he is entitled to relief in tliis court. High 
 
 Stew.) 77, 1878; see cases cited in report- on Inj. sec. 787." 
 
 er's note at end of the opinion. The ^ Mayor u. Winfield, 8 Humph. (Tenn.) 
 Chancellor in substance says : " The 767, 1848. The oppressiveness and in- 
 water-works belong to the municipality, equality, alleged to invalidate a by-law, 
 and are for tlie benefit of the inliabitants must be made apparent to the court, 
 of the city. The inhabitants are entitled Mayor v. Beasley, 1 Humph. (Tenn.) 232, 
 to the use of the vvater on compliance 1839; St. Louis v. Weber, 44 Mo. 547, 
 with reasonable regulations. The use of 1869. A by-law prohibiting stomerwniiinju^ 
 the water for the complainant's tenants is large in a city is presumptively reasonable 
 necessary to the full enjoyment by him as a sanitary or police regulation. Com- 
 of his property. To refuse to furnish monwealth v. Patch, 97 Mass. 221 ; Corn- 
 water to his tenant there unless the com- monwealth v. Bean, 14 Gray (Mass.), 52. 
 plainant pays a debt due from the tenant Ordinances to regulate callings and 
 to the city for water furnished to him trades must not be unreasonable, partial, 
 elsewhere, on premises not belonging to in restraint of trade or in contravention 
 the complainant, would, obviously, be to of public policy. Frank, in re, 62 Cal. 
 compel him to pay the tenant's debt as a 606, 1877. Thus a statute forbidding the 
 condition precedent to obtaining the water reservation of seats at public exhibitions, 
 for his premises while occupied by the upon the sale of tickets of admission, 
 tenant. The regulations must be reason- after the opening of the doors is an un- 
 able. 1 Dill, on Mun. Corp. sees. 319, constitutional interference with private 
 320. The refusal to furnish water to property. Dist. of Columbia v. Saville, 
 complainant is, under the circumstances, 1 McArthur, 681. 
 unjustifiable, and is an injury for which ' St. Louis v. Fitz, 58 Mo. 582, 1873. 
 
834 MUNICIPAL CORPORATIONS. [CH. Xl'l. 
 
 to use or maintain a steam-engine or boiler, and that thereupon 
 the same should be removed, under a heavy penalty for failure to 
 remove it, in action to restrain the prosecution of a suit for the pen- 
 alty by one maintaining a steam-engine after notice to remove the 
 same by the mayor, it was held that, by itself, a stationary steam- 
 engine is not a nuisance ; and that an ordinance which commits to 
 the unrestrained wUl of a single public officer a power over the use 
 of steam within a city, practically absolute, so that he might pro- 
 hibit its use altogether, the exercise of which may proceed from 
 enmity or prejudice, from partisan zeal or animosity, from favor- 
 itism and other improper influences, and motives easy of conceal- 
 ment and difficult to be detected and exposed, hardly falls within 
 the domain of law, and is void and inoperative. ^ 
 
 § 322. (256) Must he Impartial, Fair, and General. — As it 
 would be unreasonable and unjust to make, under the same 
 circumstances, an act done by one person penal, and if done by 
 another not so, ordinances which have this effect cannot be sus- 
 tained. Special and unwarranted discrimination, or unjust or 
 oppressive interference in particular cases is not to be allowed. 
 The powers vested in municipal corporations should, as far as 
 practicable, be exercised by ordinances general in their nature 
 and impartial in their operation.^ 
 
 ^ Baltimore v. Kadecke, 49 Md. ; s. c. nance when passed is a judicial act, im- 
 
 21 Alb. Law Jour. 117. posing pecuniary burden and loss on the 
 
 2 Euss V. Mayor, etc. of New York, 12 railroad company, and is subject to review 
 
 N. Y. Leg. Obs. 38 ; White w. Mayor, 2 by courts which will determine whether 
 
 Swan (Tenn.), 364, 1852; l)e Ben v. the power conferred was exercised in a 
 
 Girard, 4 La. An. 30 ; Chicago v. RumpfE, legal and reasonable manner. State v. 
 45 111. 90 ; Mayor, etc. of Hudson v. ' East Orange, 41 N. J. L. 127. Ordinances 
 Thorne, 7 Paige. 261. The doctrine of should be general, or, at all events, not 
 
 the text approved and applied. Tugman discriminating in their operation. They 
 
 ». Chicago, 78 111. 405, 1875. An ordi- may, it is said, impose fines on persons 
 
 nance prohibiting a particular railroad violating their provisions within the cor- 
 
 corporation by name from running loco- poration or within a designated district 
 
 motives by steam on a specified street is therein, or in a certaiii street ; but -an 
 
 valid and does not contravene the princi- ordinance naming one individual and di- 
 
 ple stated in the text. Richmond, etc. Rail- reeling him to do certain acts with respect 
 
 road Co. v. Richmond, 96 U. S. 521, 1877 ; to a building alleged to be a nuisance, 
 
 8. c. 10 Chicago Legal News, .379. So an and in default of compliance, imposing a 
 
 ordinance crtmpelling a railroad company fine of a specific amount upon him, was 
 
 to station flagmen wherever the rail- held to be unreasonable, contrary to com- 
 
 road may cross streets, etc., is a valid ex- mon right, and void. Municipality v. 
 
 ercise of legislative power, as a police Blineau, 3 La. An. 688, 1848. Compare 
 
 regulation for the safety of the public Bozant v. Campbell, 9 Rob. (La.) 411, 
 
 and passengers on the trains. Such ordi- 1845, where, without repealing an ordi- 
 
§ 324] MUNICIPAL ■ ORDINANCES OR BY-LAWS. 335 
 
 § 328. (257) May regulate^ hut not restrain Trade. — In Eng- 
 land, certain customs prevail in prescriptive corporations restric- 
 tive of freedom trade and against common right. Such customs, 
 from long usage and unknown origin, are regarded in the light of 
 regulations prescribed by a charter which is supposed to have 
 existed, but is lost. Such customs, while not favored by the 
 English courts, are yet held legal, but must be incontrovertibly 
 established. But by the Municipal Corporations Act of 1885 (5 
 & 6 Will. IV. ch. Ixxvi. sec. 14),^ exclusive rights of trading 
 have been abolished, and it is enacted " that, notwithstanding 
 such custom or by-law [to the contrary], every person in any 
 borough may keep any shop for the sale of all lawful wares and 
 merchandise, by wholesale or retail, and use every lawful trade, 
 occupation, mystery, and handicraft, for hire, gain, sale, or other- 
 wise, within any borough." 
 
 § 324. (258) In this country corporations derive all their 
 powers from legislative acts of comparatively modern date, and 
 prescriptive customs, in restraint of trade or against common 
 right, are unknown. No inconsiderable portion of the cases in 
 the old books in England relate to these customs, their validity 
 and mode of proof, but they are in the main inapplicable to the 
 
 nance prohibiting private hospitals, the fact that certain persons were engaged in 
 
 grant of permission to one or more indi- a particular Icind of business in a given 
 
 viduals to erect such hospitals was sus- locality, at the time of the adoption of an 
 
 tained. And see, also, Commonwealth v. ordinance, would not authorize the muni- 
 
 Goodrich, 13 Allen (Mass ), 545, where a cipal corporation, by such ordinance, to 
 
 municipal regulation, limited in its char- permit such persons to continue their 
 
 ter, was considered valid. Ordinances business, whilst it prohibited others from 
 
 may be adapted to the varying municipal engaging in the same business in the same 
 
 necessities and exigencies. Covington ». locality. Tugman v. Chicago, 78 111. 405, 
 
 East St. Louis, 78 111. 548, 1875; post, 1875. 
 
 see. 394. In exercising its power to re- A statute autliorizing municipal au- 
 quire adjacent lot owners to make local thorities to license and regulate such 
 improvements, the corporation, it has callings, trades, and employments as the 
 been held in Tennessee., must not act in a public good may require will empower 
 partial and oppressive manner ; therefore them to exact a license for revenue pur- 
 it cannot select particular Individuals by poses, if that construction is not incon- 
 name, and require them to construct sistent with the whole charter and the 
 pavements or local Improvements in front general legislation of the state. An ordi- 
 of their lots, and omit others in the same nance fixing one rate of license for selling 
 improvement district, if this be done goods which are within or in transit to the 
 without good cause or reason for the dis- city, and another rate for goods not within 
 tinction. White u. Mayor, etc., 2 Swan or in transit to the city, is invalid. Frank, 
 (Tenn.), 864, 1852; post, sec. 799. in re, 62 Cal. 606; s. p. Mayor v. Althorp, 
 1 Ante, ch. iii. sec. 85 and note. The 5 Coldw. 664. 
 
336 MUNICIPAL COKPOEATIONS. [CH. Xn. 
 
 present period and to the institutions in this country, where free- 
 dom in the choice and pursuit of all occupations never has been 
 denied. The inapplicability of tlie English decisions is noticed 
 by Mr. Justice Bewcy in delivering the opinion of the Supreme 
 Court of Massachusetts in an important case involving the valid- 
 ity of an ordinance of the city of Boston regulating the use of 
 hackney coaches and other vehicles within the city. He observes 
 that " in the arguments addressed to the court, the question was 
 somewhat discussed as to the power incident to municipal corpo- 
 rations to create by-laws 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 it is quite obvious that in many of them, 
 and particularly those where the ordinance seemed most question- 
 able as not being within the ordinary exercise of municipal au- 
 thority, the by-laws were sustained upon the ground of ancient and 
 long-continued usage, ripening into a prescriptive right on the part 
 of the municipal corporation." But " no such ground," he adds, 
 " can be urged here ; and the present ordinance, if sustained at 
 all, must be shown to be authorized by the express provision of 
 the charter, or be derived as an incidental power resulting from 
 its incorporation as a city, or be found in some general or special 
 statute." ^ 
 
 § 825. (259) Must not contravene Common Right. — An ordi- 
 nance cannot legally be made which contravenes a common right, 
 
 1 Commonwealth v. Stodder, 2 Cush. the city, by reasonable by-laws, to require 
 (Mass.) 562, 568, 1848. See as to English inhabitants, whose business is local and 
 decisions, remarks of Rhodes, J., in Herzo carried on within the city, to obtain a 
 V. San Francisco, 33 Cal. 134, 145, 1867. license before exercising certain employ- 
 In the case first cited the court decided ments. Per Dewey, J., Commonwealth v. 
 that the business of carri/ing persons for Stodder, 2 Cush. (Mass.) 562, 575; see 
 hire from town to town in stage-coaches also Napman v. People, 19 Mich. 352, 
 and omnibuses is not so far a territorial 1869; Barling v. West, 29 Wis. 307 ; s. c. 
 or local occupation as will authorize one 9 Am. Rep. 576, 1871 ; Hayes v. Apple- 
 city, unless it has express and direct au- ton, 24 Wis 542 ; post, sec. 303. 
 thority so to do from the legislature, to Whenerer a by-law seeks to alter a well 
 pass an ordinance requiring the inhabi- settled anifnnAamental principle of the com- 
 tants of other towns to obtain from it a mon law, or to establish a rule interfering 
 license before exercising that employment with the rights of individuals or the pub- 
 in carrying persons to or from it. Such lie, the power to do so must come from 
 an ordinance was considered to be an un- plain and direct legislative enactment, 
 necessary restraint upon business, and Is Taylor v. Griswold, 2 Green (N. J ), 222, 
 not binding upon citizens of other places. 1834 ; ante, sec. 89 and note. 
 The court does not question the right of 
 
§ 326.] MUNICIPAL ORDINANCES OR BY-LAWS. 337 
 
 unless the power to do so be plainly conferred by legislative grant ; 
 and in cases relating to such a right, authority to regulate, con- 
 ferred upon towns of limited powers, has been held not necessarily 
 to include the power to prohibit.^ Thus, in Connecticut, it is held 
 that every one has, presumptively, a common-law right to fish in 
 navigable rivers, and that, though every town may, by statute, 
 have the power to make by-laws to regulate fisheries of clams and 
 oysters within its limits, yet this power does not authorize a by- 
 law prohibiting all persons except its own inhabitants from taking 
 shell-fish in a navigable river, within the limits of such town ; 
 such a bj'-law, being in contravention of a common right, is void.^ 
 
 § 326. (260) But there is, however, no common right to do 
 that which, by a valid law or ordinance, is prohibited ; and hence 
 courts will not declare an authorized ordinance void because it 
 prohibits what otherwise might lawfully be done. In discussing 
 the subject, Mr. Justice Evans illustrates it in this wise : " If there 
 was no law interfering, the butcher might kill his beeves and hogs 
 in the street. If the butcher could do it, any man might, and it 
 might, therefore, be said to be a common right ; but when the law 
 prohibited it, it was no longer a common right. A legal restraint 
 may be imposed on a few for the benefit of the many." ^ There- 
 fore, while ordinances which unnecessarily restrain trade or ope- 
 rate oppressively upon individuals will not be sustaino'l, yet such 
 as are reasonably calculated to preserve the public health are valid 
 although they may abridge individual liberty and individual rights 
 in respect of property. Accordingly in a populous city an ordi- 
 nance is valid as a sanitary regulation which prohibits the pur- 
 chasing of carcasses of dead animals for boiling, steaming, or ren- 
 dering the same, and the rendering and steaming of the same, 
 within the city, except in certain enumerated cases and under 
 specified conditions of a reasonable character.* 
 
 1 Taylor v. Griswold, 2 Green (N. J.), v. West, 29 Wis. 307, 1871; s. c. 9 Am. 
 222, 1834. Rep. 576 ; see post, sec. 387 ; ante, sec. 89. 
 
 2 Haydeni). Noyes, 5Conn. 391, 1824; » Per Emns, J., in City Council v. 
 Peckw.Lockwoocl,5Day(Conn.),22;Wil- Ahrens, 4 Strob. (So. Car.) Law, 241, 
 lard V. Killingworth, 8 Conn. 247 ; Clason 257, 1850; City Council v. Baptist Church, 
 V. Milwaukee, 30 Wis. 316, The general lb. 306, 310 ; Peoria v. Calhoun, 29 111. 317, 
 welfare clause does not authorize the im- 1862 ; St. Paul v. Coulter, 12 Minn. 41, 
 position of a license tax for engaging in a 1866. 
 
 lawful business, — sale of lemonade, cake, * State v. Fisher, 52 Mo. 174, 1873. 
 at temporary stands on sidewalk. Barling 
 
 VOL. I. 22 
 
338 
 
 MUNICIPAL CORPOEATIONS. 
 
 [CH. XII. 
 
 § 327. (261) ValidUy is for the Court, and not the Jury, to 
 determine. — Whether an ordinance be reasonable and consistent 
 with the law or not is a question for the court, and not the jury, 
 and evidence to the latter on this subject is inadmissible. But in 
 determining this question the court will have to regard all the 
 circumstances of the particular city or corporation, the objects 
 sought to be attained, and the necessity which exists for the ordi- 
 nance. Regulations proper for a large and prosperous city might 
 be absurd or oppressive in a smaU and sparsely populated town 
 or in the country. An unreasonable by-law is void.^ 
 
 § 328. (262) Legislative Authority to adopt Unreasonable Or- 
 dinances. — Where the legislature, in terms, confers upon a mu- 
 nicipal corporation the power to pass ordinances of a specified and 
 
 1 Bacon Abp. tit. Bji-Law; Common- 
 wealth H. Worcester, 3 Pick. (Mass.) 462, 
 1862; Paxson v. Sweet, I Green (N. J.), 
 196, 1832; Vandine, Petitioner, etc., 6 
 Pick. (Mass.) 187, 1828; Boston v. Shaw, 
 1 Met. (Mass.) 130, 135, 1840; Austin v. 
 Murray, 16 Pick. (Mass.) 121, 125, 1834; 
 Hudson V. Thome, 7 Paige ( N. Y. ) Ch. 261 ; 
 Commonwealth c. Stodder, 2 Cush. (Mass.) 
 562, 575, 1848; Commonwealth v. Gas 
 Co., 12 Pa. St. 318 ; Dunham v. Rochester, 
 5 Cow. (N. Y.) 462, 465, 1826; Buffalo v. 
 Webster, 10 Wend. (N. Y.) 100; Brook- 
 . lyn V. Breslin, 57 N. Y. 591, 596, 1874; 
 Frank, in re, 52 Cal. 606, approving text. 
 " Where the municipal legislature has 
 authority to act, it must be governed, not 
 by our discretion, but by its own ; and we 
 shall not be hasty in convicting them of 
 being unreasonable in the exercise of it." 
 Per Loiorie, J., Fisher v. Harrisburg, 2 
 Grant (Pa.) Cases, 291, 1854; s. p. St. 
 Louis V. Weber, 44 Mo. 547. " The 
 courts," says Dewey, J., " doubtless have 
 the power to deny eSect to a by-law ob- 
 noxious to the objection that it is unrea- 
 sonable. It is, however, a power to be 
 cautiously exercised," especially where 
 the question is a practical one, — for ex- 
 ample, the length of time which ought to 
 be allowed to vehicles to remain in the 
 street, and as to which the city authori- 
 ties, it is to be presumed, can judge bet- 
 ter than the court. Commonwealth v. 
 Robertson, 5 Cush. (Mass.) 438, 442, 
 1850. See, also, Vintners v. Passey, 1 
 
 Burr. 239; Workingham v. Johnson, Cas. 
 Temp. Hardw. 285 ; Poulter's Co. v. Phil- 
 lips, 6 Bing. N. C. 314 ; St. Paul v. Coulter, 
 12 Minn. 41 ; Commonwealth v. Patch, 97 
 Mass. 221. 
 
 The doctrine of the text thnt the valid- 
 ity of a by-law is in all cases a question 
 for the court and that evidence to the 
 jury is inadmissible, has been denied by 
 the Supreme Court of Wisconsin, which, 
 in Clason v. Milwaukee, 30 Wis. 316, 
 1872 (involving the validity of an ordi- 
 nance to protect the harbor, and also the 
 city, from inundation by preserving the 
 shore or beach), considered it to be no 
 violation of principle, in a case where the 
 reasonableness of tlie ordinance depended 
 upon extrinsic facts, to submit testimony 
 to the jury bearing upon the reasonable- 
 ness of the requirements of the ordinance. 
 But the argument of the counsel for the 
 city, that this view makes the same by-law 
 " valid in one case and invalid in another, 
 according to the varying weight of testi- 
 mony and the varying views of juries," 
 seems unanswerable, and the text states 
 probably the true doctrine. See Glover 
 on Corp. 297, and cases in this note. 
 
 The fact that certain provisions of an 
 ordinance are void does not authorize the 
 court to declare void those provisions 
 which relate to the subject-matter of the 
 ordinance, when they are distinct and 
 separate from those which are void and 
 useless. State v. Hardy, 7 Neb. 377. 
 
§ 329.] MUNICIPAL ORDINANCES OB BY-LAWS. 339 
 
 defined character, if the power thus delegated be not in conflict 
 with the constitution, an ordinance passed pursuant thereto can- 
 not be impeached as invalid because it would have been regarded 
 SIS unreasonable if it had been passed under the incidental power 
 of the corporation, or under a grant of power general in its nature. 
 In other words, what the legislature distinctly says may be done 
 cannot be set aside by the courts because they may deem it un- 
 reasonable or against sound policy. But where the power to 
 legislate on a given subject is conferred, and the mode of its exer- 
 cise is not prescribed, then the ordinance passed in pursuance 
 thereof must be a reasonable exercise of the power, or it will be 
 pronounced invalid. * 
 
 § 329. (263) Must he consistent with Public Legislative Policy, 
 — The rule that a municipal corporation can pass no ordinance 
 which conflicts with its charter or any general statute in force and 
 applicable to the corporation has been before stated. Not only 
 so, but it cannot, in virtue of its incidental power to pass by- 
 laws, or under any general grant of that authority, adopt by-laws 
 which infringe the spirit or are repugnant to the policy of the 
 state as declared in its general legislation. This principle is well 
 exemplified by a case in Ohio,^ in which incorporated towns were, 
 by statute, prohibited from subjecting stray animals owned by 
 persons not residents of such towns to their corporation ordi- 
 nances. It was held that an ordinance operating, not on the animals 
 but on the non-resident owner, in the shape of a penalty, violated 
 the spirit of the statute, and was void. So, in a later case in the 
 same state, it was shown that the general policy of the state was to 
 allow animals to run at large ; and it was ruled that a municipal 
 corporation, with power to pass " all by-laws deemed necessary 
 
 I Peoria ». Calhoun, 29 111.817,1862; ments of the legislature. To say that 
 
 St. Paul V. Coulter, 12 Minn. 41, 1866 ; such a law is of unusual tendency is dis- 
 
 Brooklyn o. Breslin, 57 N. Y. 591, 596, respectful to the legislature, who, no 
 
 1874 ; post, sec. 420. Speaking of a pro- doubt, designed to promote the morals 
 
 vision of the cliarter of the city of St. and healtli of the citizens. Whether the 
 
 Louis, authorizing the city authorities " to ordinance in question is calculated to 
 
 regulate," and, by construction, to per- promote the object is a question with 
 
 mit bawdy houses, and the objection which the courts have no concern " when 
 
 made by counsel to an ordinance licens- the legislative will has been plainly ex- 
 
 ing such houses, Napton, J., says : " It pressed. State v. Clark, 64 Mo. 17, 36, 
 
 is naked assumption to say that any mat- 1873. 
 
 ter allowed by the legislature is against 2 Marietta v. Fearing, 8 Ohio, 427, 
 
 public policy. The best indications of 1831. 
 public policy are to be found in the enact- 
 
340 MUNICIPAL COEPORATIOWS. [CH. XIL 
 
 for the well-regulation, health, cleanliness, etc.," of the borough, 
 and with power to " abate nuisances," had no authority to pass a 
 by-law restraining cattle from running at large, such a by-law 
 being in contravention of the general law of the state.^ 
 
 § 330. (264) The general statutes of the state abolished the 
 system of inspecting hay, and, in the place of it, the seller was 
 required to prepare the article for market in a particular manner, 
 at the peril of being subjected to certain designated penalties. 
 In other words, he was at liberty to dispose of his hay without 
 inspection if he chose to do so. Under these circumstances, it 
 was decided that a city ordinance, prohibiting the sale of pressed 
 hay without inspection, was void, because it coriflicted with the laws 
 of the state upon the same subject.^ 
 
 Of the Signing, Publication, and Recording of Ordinances, 
 
 §331. (265) Signing, Publication, and Recording. — When 
 ordinances are required to be published before they shall go into 
 effect, this requirement is essential, and the publication must be 
 in the designated mode. Until such publication be made, or 
 until they have gone into operation, no penalty can be enforced 
 under them.^ Whether the mayor's signature is essential to the 
 
 1 Collins V. Hatch, 18 Ohio, 523, 1849. Sunday. Followed, Thompson ». Mount 
 
 'Zatva Illinois it has been decided that a Vernon, W. Lb. 688, adjudging an ordi- 
 
 town, authorized bj its charter to declare nance to be invalid because inconsistent 
 
 what should be nuisances, and to provide with the liquor law of the state. And 
 
 for the abatement thereof by ordinance, see Adams v. Mayor, etc., 29 Ga. 56 ; Sill 
 
 may pass an ordinance declaring swine v. Corning, 1 E. D. Smith (N. Y.), 297; 
 
 running at large within the corporation Cincinnati».Gwynne, 10 Ohio, 192; Wood 
 
 to be nuisances, and providing for the ». Brooklyn, 14 Barb. (N.Y.) 425; Markle 
 
 taking up of the same, etc., and this v. Akron, 14 Ohio, 586 ; Thomas b. Rich- 
 
 though under the laws of the state the mond, 12 Wall. 849, 1870. But a, corpo- 
 
 owners of stock may lawfully allow it to ration may, in some cases, consistently 
 
 run at large upon the common, the court with general law, further regulate by or- 
 
 regarding the power named in the charter dinance subjects already regulated by 
 
 as abridging or Umiting any right of com- statute. Huddleson v. Ruffln, 6 Ohio St. 
 
 mon which might otherwise exist. Rob- 604 ; Rogers v. Jones, 1 Wend. (N. Y.) 
 
 erts V. Ogle, 30 111. 459, 1863. By-laws 237 ; State v. Welch, 36 Conn. 215, 1869. 
 
 which contravene the policy of the gen- 2 Mayor, etc. of New York ». Nichollg, 
 
 eral statutes of the state, by undertaking 4 Hill (N. Y.), 209, 1843. Compare, 
 
 to punish acts which those statutes au- Mayor v. Hyatt, 3 E. D. Smith (N. Y.), 
 
 thorize, are void. Canton v. Nist, 9 Ohio 156; Rogers v. Jones, 1 Wend. (N. Y.) 
 
 St. 439, holding void a by-law, which, 287. Construction of power to appoint 
 
 disregarding the statutory exceptions of weighmasters. Hoffman v. Jersey City, 
 
 cases of necessity, charity, etc., prohibited 34 N. J. L. 172, 1870. 
 
 the opening of shops for business on * Barnett v. Newark, 28 111. 62, 1862 ; 
 
§ 333.] 
 
 MUNICIPAL OEDINANCES OR BY-LAWS. 
 
 341 
 
 validity of an ordinance depends upon the charter ; but unless, 
 made essential, such provisions, where the ordinance is duly en- 
 acted, have sometimes been regarded as directory.^ 
 
 § 382. (266) Where alternate modes of publication of a by-law 
 are allowed by statute, and the statute requires the corporation 
 to direct which mode shall be adopted, a publication made by 
 order of the clerk, without direction from or selection of the 
 mode having been made by the corporation, is not valid.'^ 
 
 § 333. (267) A municipal charter required every ordinance to 
 be published for the space of twenty days in at least one news- 
 
 Conboy o. Iowa City, 2 Iowa, 90, 1855 ; 
 Higley v. Bunce, 10 Conn. 567, 1835. 
 Specified mode of publishing the proceed- 
 ings of the council is essential. State' v. 
 Hoboken, 9 Vroom (38 N. J. L.), 110; lb. 
 113 ; Hoboken v. Gear, 3 Dutch. (N. J.) 
 265. Failure to publish ordinance held 
 not to affect validity of bonds issued 
 under a subsequent act authorizing the 
 corporation to incur a debt. Amey v. 
 Allegheny City, 24 How. 364; Clark v. 
 Janesville, 10 Wis. 136, 1859; State 
 V. Newark, 1 Vroom (80 N. J. L.), 803; 
 People V. San Francisco, 27 Cal. 655. 
 
 1 Blanchard v. Bissell, 11 Ohio St. 96, 
 101, 103, 1860; Striker v. Kelly, 7 Hill 
 (N. Y.), 9; Elmendorf v. Mayor of New 
 York, 25 Wend. (N. Y.) 693. See, how- 
 ever, Conboy v. Iowa City, supra ; State 
 V. Newark, 1 Dutch. (N. J.) 399; State v. 
 Hudson, 5 Dutch. (N. J.) 475; Kepner v. 
 Commonwealth, 40 Fa. St. 124 ; State 
 V. Jersey City, 1 Vroom (30 N. J.L.), 83; 
 Creighton v. Manson, 27 Cal. 613 ; Taylor 
 V. Palmer, 31 Cal. 241 ; Dey v. Jersey 
 City, 19 N. J. Eq. 412; State v. Jersey 
 City, 1 Vroom (80 N. J. L.),93; lb. 148; 
 State V. Newark, 3 Dutch. (N. J.) 185, 
 1876; Gas Co. v. San Francisco, 6 Cal. 
 190. See ante, chapter on 'Corporate 
 Meetings, sec. 298. Signing minutes not 
 equivalent to signing resolution, when 
 latter is essential. Graham v. Caronde- 
 let, 33 Mo. 262, 1862. When to be signed. 
 Miles V. Bough, 3 Gale & D. 119; Inglis 
 V. Railway Co., 16 Eng. Law & Eq. 55. 
 A legislative provision requiring the pre- 
 siding officer of the council to sign all or- 
 dinances is directory in its nature. If 
 
 regularly passed, an ordinance is valid, 
 though not thus authenticated. It is, of 
 course, competent for the legislature to 
 make the signature an essential condition 
 of validity. Blanchard o. Bissell, 11 Ohio 
 St. 96, 101, 108, 1860 ; Fisher v. Graham, 
 1 Cin. (0.) 113,1870; ante, sec. 293. See 
 State a. Newark, 1 Dutch. (N. J.) 899. 
 Signature of mayor not essential under 
 general incorporation laws of Indiana. 
 Martindale v. Palmer, 52 Ind. 411, 1876. 
 No municipal ordinance is binding unless 
 signed by the mayor and promulgated 
 in the English language. Breaux's Bridge, 
 in re, 30 La. An. 1105 ; ante, sec. 271, note. 
 ^ Higley v. Bunce (restraining cattle), 
 10 Conn. 485; s. c. lb. 567, 1835. The 
 language of the statute was this : " Such 
 by-laws shall not be in force until pub- 
 lished four weeks in a newspaper priiited 
 in such town, or in the town nearest to 
 such town in which a newspaper is 
 printed, or in some other newspaper gen- 
 erally circulated in the town where such 
 by-law is made, as Ike town shall direct." 
 Rev. 1821, p. 458. Held, that the taum 
 must point out one of the three descrip- 
 tions of newspapers in which the by-law 
 should be printed. lb. Mode of publi- 
 cation under the general incorporation 
 law of Illinois of 1872. Byars v. Mt. 
 Vernon, 77 111. 467, 1875. Special pro- 
 visions construed. Phillips, in re, 60 N. 
 Y. 16, 1875 ; Bassford, in re, 60 N. Y. 509, 
 1872. Certificate of city clerk of due 
 publication not competent evidence unless 
 made so by statute. Railroad Co. ii. 
 Engle, 76 III. 817, 1875. 
 
3^42 MUNICIPAL COKPOKATIONS. [CH. XIL 
 
 paper before it should go into effect; and it was held that an 
 ordinance would go into force in twenty days after its publication 
 in the first number of the paper; that twenty days need not 
 intervene between the first and last insertions ; that it is clearly 
 sufficient if it be published in each number of the paper issued 
 within the twenty days, and probably sufficient if there is but one 
 insertion, twenty days after which the ordinance will go into 
 effect.^ Where an ordinance has been once duly published, and 
 it is afterwards included in a revision or digest of ordinances, no 
 additional publication is necessary .^ 
 
 § 334. (268) A charter provided that no ordinance should be 
 in force until published in some newspaper of the place, and also 
 declared that ordinances should be sufficiently proved in any 
 court (among other modes) by a printed copy taken from the 
 newspaper or printed pamphlet in which the same had been pub- 
 lished, provided the same purports to have been done by author- 
 ity of the corporation. Under this provision, the production of a 
 newspaper published in the town, containing what appears as an 
 ordinance, with a caption, "Published by Authority," duly 
 signed, is evidence of the existence and adoption of the ordi- 
 nance.* So, where the charter provides that ordinances published 
 by authority of the corporation shall be received in evidence 
 
 1 Hoboken v. Gear, 3 Dutch. {N. J.) in force before it was made." St. Louis 
 265, 1859. Where a city is required to v. Alexander, 23 Mo. 509. Exception to 
 promulgate its ordinances, it is sufficient to rule see Emporia v. Norton, 16 Kan. 236, 
 publish them in the newspaper in which 1876. 
 
 the ordinances are usuaUi/ published, s Block v. Jacksonville, -36 111. 301, 
 
 though there may be other newspapers 1865. Authorized book of ordinances Is 
 
 within the city. Trjichelut v. City Coun- prima facie evidence of due passage and 
 
 cil, 1 Nott & McC. (South Car.) 227, publication of the ordinances therein con- 
 
 1818. tained. Prell v. McDonald, 7 Kan. 426, 
 
 2 St. Louis V. Foster, 52 Mo. 513, 1873i 1871; s. c. 12 Am. Rep. 428. See Pende- 
 "It would be of the most mischievous gast v. Peru, 20 111. 51. Proof of publioa- 
 consequence to hold that the revision of a tion under special charter provision, 
 law had the effect of making the revised President, etc. v. O'Malley, 18 111. 407; 
 law entirely original, to be considered as Moss v. Oifl^land, 88 111. 109. In an action 
 though none of its provisions had efFect against a city, plaintiff need not prove 
 but from the date of the revised law. the publication of an ordinance offered 
 When a former provision is included in a in evidence where he shows that the city 
 revised law, it is only thereby intended to had for several years acted upon the 
 continue its existence, not to make it ordinance as in force. Atchison v. King, 
 operate as an original act to take effect 9 Kan. 550, 1872 ; State v. Atlantic City 
 from the date of the revised law. The (burden of proof), 5 Vroom (34 N. J. L.), 
 revision has not the effect to break the 99, 106. 
 
 continuity of those provisions which were 
 
§ 336.] MUNICIPAL ORDINANCES OR BY-LAWS. 343 
 
 without further proof, a book of ordinances, purporting to be 
 thus published, is competent evidence, without further authenti- 
 cation ; but it is not, of course, conclusive.^ 
 
 § 885. (269) A provision in a statute changing an incorpo- 
 rated town into a city, that the existing town ordinances shall 
 remain in force provided they shall be recorded within four 
 months thereafter, is merely directory, and such ordinances are 
 valid, though not recorded within the designated period.^ Nor 
 is it a valid objection to a municipal ordinance that it is recorded 
 in print (being printed and pasted in the proper book), and not 
 in manuscript.^ 
 
 Of the Power to Impose Fines, Penalties, and Forfeitures. 
 
 § 836. (270) Common Law Principles adopted. — That by-laws 
 or ordinances may not be inoperative or useless, it is necessary 
 that some penalty should be annexed to the breach of them ; and 
 it is settled in England, in accordance with the principles of 
 Magna Charta, that without the express sanction of parliament, 
 no by-law can be enforced by disfranchisement of the offender, 
 or by his imprisonment, or by forfeiture of his goods or property. , 
 Under incidental power to pass by-laws, a corporation may, in 
 England, annex pecuniary penalties of a certain fixed and reason- 
 able character, but without express authority given by a statute, 
 the only penalty it can prescribe is a pecuniary one, usually 
 called a iine. Therefore, in the absence of a statute or special 
 custom justifying it, a by-law cannot give a power of distress and 
 sale of the goods of the offender, since such a power is contrary 
 to the common law. And where a corporation is empowered to 
 enforce its by-laws in a special manner, as by fine, it is limited to 
 the manner prescribed. These safe, salutary, and enlightened 
 principles of law have been recognized by the American courts 
 as applicable to the ordinances of our municipal corporations, 
 as the cases to which reference will be made fully show. 
 
 1 St. Louis V. Foster, 52 Mo. 513, 1873. Parol evidence of resolutions is competent 
 * Trustees of Academy v. Erie, 31 Pa. where the charter does not require them 
 St. 515, 1858 ; Amey v. Allegheny City, to be recorded, and no record thereof has 
 24 How. 364. See chapter on Corporate been made. Darlington v. Common- 
 Records and Documents, ante. wealth, 41 Fa. St. 68. See ante, sec. 310. 
 » Ewbanks v. Ashley, 86 111. 177, 1864. 
 
344 MUNICIPAL COEPOEA.TIONS. [CH. XH. 
 
 § 337. (271) By the Mwnicipal Corporations Act, the subject 
 of by-laws and their penalties is regulated. It is declared " that 
 it shall be lawful for the council of any borough to make such 
 by-laws as shall to them seem meet for the good rule and govern- 
 ment of the borough, and for the prevention and suppression of 
 all such nuisances as are not already punishable in a summary 
 manner by virtue of an act in force throughout such borough,, 
 and to appoint, hy such by-laws, such fines as they shall deem 
 necessary for the prevention and Suppression of such offences ; 
 provided that no fine, to be so appointed, shall exceed the sum of 
 fi/ve pounds, and that no such by-law shall be made, unless at least 
 two thirds of the whole number of the council shall be present."^ 
 Respecting the fines mentioned in this section, Mr. Rawlinson 
 suggests the inquiry whether it be necessary or not that the 
 exact amount of each fine should be mentioned in the by-law, 
 the limit, to wit, bl., being fixed, by the act. It is contended, he 
 observes, by some persons, that the amount may be left open, 
 and that a by-law, enacting that the offence shall be punishable 
 by a fine not less than 10s. and not exceeding 5/., would be valid. 
 This would be convenient, but some have doubted whether the 
 corporation could enforce it by the usual common-law remedies, 
 , viz., by an act of debt or assumpsit. It is believed, he adds, that 
 by-laws have invariably fixed the exact sum ; but, nevertheless, 
 it would seem that a fine of 61, with power to the mayor or other 
 officer to reduce it to any sum not exceeding a specified amount, 
 would be good.^ In this country, the practice, if not general, 
 is at least not uncommon, to prescribe limits to fines, and allow 
 them to be imposed within those limits, at the discretion of the 
 magistrate or court entrusted with jurisdiction to hear complaints 
 for breaches of municipal ordinances.^ 
 
 1 5 & 6 Will. IV. ch. Ixxvi. sec. 90 ; ner the discretion has been exercised. 
 ante, sec. 36 and note ; post, sec. 408. The King v, Bimpsey, 2 Term R. 96 ; The 
 
 2 Bawlinson on Corp. (5th ed.) 165, King i>. Symonds, 1 East, 189 ; Boothroyd, 
 166, note; post, sec. 841; Piper v.Chappell, inre, 15 M.&W. 1; The King v. Seale, 
 14 M. & W. 624 ; Peters v. London, 2 Up- 8 East, 568, 573 ; The King v. Smith, 5 
 per Can. Q. B. 543 ; Eennell, in re, 24 Up- M. & S. 138,; The Queen v. Johnson, 8 
 per Can. Q. B. 238, 248 ; SneU, in re, 30 Q. B. 102 ; Wray v. Toke, 12 Q. B. 492; 
 Upper Can. Q. B. 81. see also. The King v. Wyatt, 2 Ld. Bayd. 
 
 . » In England it is held that where 1478 ; The King v. Priest, 6 Term R. 5-38. 
 the statute gives a discretion, either It was held in New Jersey, where 
 as to the amount of the penalty or its the charter authorized the council to en- 
 application, the justice must, on the force their ordinances by a penalty not 
 face of the conviction, show in what man- exceeding fifty dollars, that the council 
 
§ 339.] 
 
 MUNICIPAL ORDINANCES OK BY-LAWS. 
 
 345 
 
 § 338. (272) Implied Power to annex Pecuniary Penalties. — 
 Since an ordinance or by-law without a penalty would be nuga- 
 tory,^ municipal corporations have an implied power to provide 
 for their enforcement by reasonable and proper fines against 
 those who break them.^ So the right to make by-laws gives to 
 the corporation, without any express grant of power, the inci- 
 dental right to enforce them by reasonable pecuniary penalties. 
 What is reasonable depends upon the nature of the offence and 
 the circumstances.^ 
 
 § 339. (273) Charter Mode governs. — Where the charter or 
 organic act prescribes the manner in which by-laws are to be en- 
 forced, or the sanctions or punishments to be annexed to their 
 violation, this constructively operates to negative the right of 
 the corporation to proceed in any other manner or to inflict any 
 other punishment. Thus, in the leading case* on this subject, 
 
 must prescribe a precise penalty for each 
 offence, and therefore an ordinance declar- 
 ing a penalty for its violation not exceed- 
 ing fifty dollars was Toid. State v. Zeigler, 
 3 Vroora (32 N. J. L.), 262 ; but see post, 
 sees. 841, 410. 
 
 1 State V. Cleveland, 3 Rh. Is. 117. 
 But no penalty can be enforced for an il- 
 legal exaction. Mayor v. Avenue Kail- 
 road Co., 33 N. Y. 42; 32 lb. 261. " Mu- 
 nicipal fine," as used in the constitution of 
 California, means a fine imposed by local 
 laws of particular places, such as incor- 
 porated towns and cities, and not a fine 
 imposed by the general laws of the state. 
 People V. Johnson, 30 Cal. 98, 1866. 
 
 2 Fisher v. Harrisburg, 2 Grant (Pa.) 
 Cas. 291, 1854 ; Barter «. Commonwealth, 
 8 Pa. (Pen. & W.) 253; Trigally v. Mem- 
 phis, 6 Coldw. (Tenn.) 382, 1869. The 
 amount must be reasonable. Zylstra v. 
 Charleston, 1 Bay (So. Car.), 382. The 
 penalty, says Mr. Willcock, must be im- 
 posed on the person who violates the 
 by-law. Thus, if goods be sold by an un- 
 authorized person within the" city, the 
 penalty must be imposed on the seller, 
 and not on the buyer ; for how can he dis- 
 tinguish between those authorized to sell 
 and those who are not 1 Willc. on Corp. 
 154, pi. 369, 370 ; Cadden v. Estwick, 1 
 Salk. 143, 192 ; 9. c. 6 Mod. 124; and see, 
 also, Fazakerley v. Wiltshire, 1 Stra. 469. 
 
 The rule stated above, as to the person 
 on whom penalties must be imposed, may 
 be extended or enlarged by express pro- 
 visions of the organic act of the corpo- 
 ration. 
 
 ' Mayor, etc. of Mobile v. Yuille, 3 
 Ala. 137, 1841. A penalty, although 
 small, fixed on every stroke of the ham- 
 mer which an unauthorized person uses 
 in his trade of a goldsmith, is unreason- 
 able. Willc. 154, pi. 368. Same princi- 
 ple. Mayor, etc. of New York v. Or- 
 drenaux, 12 Johns. (N. Y.) 122, 1815. 
 
 ♦ Kirk V. Nowill, 1 Term K. 118, 124, 
 1786, per Mansfield and Butter : followed 
 in Hart v. Mayor, etc., 9 Wend. (N. Y.) 
 571, 588, 606, 1832 ; Cotter v. Doty, 5 
 Ohio, 394, 1832 ; Heise v. Town Council, 
 6 Rich. (So. Car.) Law, 404, 1853; Miles 
 V. Chamberlain, 17 Wis. 446, 1863. In 
 Hart V. Mayor, supra, it was accordingly 
 decided that a corporation having author- 
 ity " to inflict penalties for the violation 
 of any by-law, not exceeding |25 for any 
 one offence," could not pass a by-law 
 subjecting property to seizure and sale, or 
 forfeiting it, even though it was used con- 
 trary to the by-law which was in other 
 respects valid, the remedy for enforcing 
 their by-laws having been specified. Hart 
 V. Mayor, 9 Wend. (N. Y.) 571; arae, 
 sec. 248 ; post, sec. 818. 
 
 Where specific modes of procedure and 
 
346 MUNICIPAL COEPOEATIONS. [CH. XH. 
 
 the charter prescribed in what manner by-laws should be en- 
 forced, namely, by fine and amerciament, or either, and it was 
 decided that the corporation was precluded from declaring a, for- 
 feiture of property, or from inflicting any other punishment ; and 
 the doctrine of this case has been everywhere followed in the 
 courts of this country. 
 
 § 340. (274) A charter of a city specifically enumerated 
 various powers, which the council. was expressly authorized to 
 enforce by a penalty not exceeding one hundred dollars for their 
 violation ; and the same charter empowered the council to pre- 
 vent and remove encroachments upon the streets, but was silent 
 as to the imposition of penalties for a violation of its provisions. 
 The council passed an ordinance imposing a continuing penalty 
 of ten dollars a day for every day's failure to remove an encroach- 
 ment, after notice ; and it was held, and properly so, that it pos- 
 sessed no power to impose such a penalty, but the decision was 
 put upon the ground that the specific enumeration of the powers 
 which might be rendered effectual by penal provisions was an im- 
 plied exclusion of the right to impose any penalties whatever in 
 other cases.^ 
 
 penalties are prescribed against persons v. Metzker, 21 111. 205, 1859. A party 
 failing to take out license for keeping cannot enjoin the collection of a fine and 
 drinking-houses, as fines, suits, and prose- costs imposed for the violation of a city 
 cutions, a municipal corporation, in the ordinance, on the ground of there being 
 absence of express grant, has no right to no offence charged or cause of action 
 close the doors of a drinking-house sum- stated before the mayor. The remedy in 
 marilg, because the keeper has failed to Indiana in such case is by appeal. Schwab 
 take out a license. Bolte v. New Orleans, v. Madison, 49 Ind. 329, 1874. 
 10 La. An. 321, 1855. That a municipal i Grand Eapids v. Hughes, 15 Mich, 
 corporation cannot annex other or greater 54^ 1866. Whether there is such an im- 
 penalties than those authorized in its or- plied exclusion must depend in each case 
 ganic act, that power to punish by upon the supposed intention of the legis- 
 " fine " is exclusive, and that it is not lature, to be gathered from a survey of 
 competent to order a forfeiture in addi- the whole charter. Tlie authority to 
 tion, see Schroder v. City Council, 2 adopt an ordinance implies the right to 
 Const. Rep. (So. Car.) 726 ; s. c. 3 Brev. enforce it by proper pecuniary penalties, 
 633, 1815 ; McMuIlen v. City Council, 1 and this right exists unless excluded by 
 Bay (So. Car.), 46 ; Zylstra v. Charleston, other provisions of the charter. In Mary- 
 lb. 382 ; New Orleans v. Costello, 14 La. land it is held when a municipal corpor- 
 An. 37 ; Columbia u. Hunt, 5 Rich. (So. ation is seeking to enforce an ordinance 
 Car.) 550, 558 ; Kennedy v. Sowden, 1 Mc- which isvoid, a court of equity has juris- 
 Mul. (So. Car.) 328 ; compare Crosby v. diction, at the suit of any person who is 
 Warren, I Rich. (So. Car.) Law, 385. iitjuriously affected thereby, to stay its 
 An ordinance treated as wholly void be- execution by injunction. Baltimore ». 
 cause it fixed the minimum fine for an Radecke, 49 Md. ; s. c. 21 Alb. Law Jour, 
 offence at five dollars when the law re- 117. 
 quired it to be three dollars. Petersburg 
 
§ 342.] MUNICIPAL ORDINANCES OR BY-LAWS. 347 
 
 § 341. (275) Penalty may he within Fixed Limits. — A mu- 
 nicipal corporation, with power to pass by-laws and to affix pen- 
 alties, may, if not prohibited by the charter, or if the penalty ia 
 not fixed by the charter, make it discretionary, within fixed 
 limits, for -example, "not exceeding fifty dollars." This ena- 
 bles the tribunal to adjust the penalty to the circumstances of 
 the particular case, and is just and reasonable. The older Eng- 
 lish authorities, so far as they hold such a by-law void for un- 
 certainty, are regarded as not sound in principle, and ought not 
 to be followed.! 
 
 § 342. (276) Single Offence cannot he made Douhle. — As the 
 power to pass ordinances and to punish for their violation must 
 be reasonably exercised, the corporation cannot multiply one 
 offence into many, and punish for each. Thus, where an author- 
 ized ordinance prohibited " any person from cutting down and 
 making use of cedar and other trees," within a specified locality, 
 a complaint, charging the defendant " with having cut down a 
 cedar tree at various times, and that he continued to do so, from 
 time to time, until he had committed one hundred violations of 
 the ordinance, by cutting down one hundred cedar trees," was 
 held to set forth but a single offence ; for, said the court, " the 
 matter charged is a trespass with a continuando, which in law is 
 but one offence, and it may well be that every tree cut by the 
 defendant was cut on one day, and, under the ordinance, the 
 cutting of more trees than one, at one time, would be but one 
 offence." ^ 
 
 1 Mayor, etc. v. Phelps, 27 Ala. 55, Scarning v. Conger, 3 Leon. 7; Moore, 
 
 1855, overruling, on this point. Mayor, 75 ; Bendl. 159 ; Davis v. Lovrden, Carth. 
 
 etc. V. Yuille, 3 lb. 137 ; compare Commrs. 29. A penalty fixed either by the char- 
 
 ». Harris, 7 Jones (Law), 281. See, also, ter or by-law is essential. Bowman w. St. 
 
 Piper ». Chappell, 14 Mees. & W. 623, John, 47 111. 337; Ashton D.Ellsworth, 
 
 649, 1845 ; Butchers' Co. v. Bullock, 3 B. 48 111. 299 ; supra, sees. 337, 338 ; post, 
 
 & Pul. 434; Grant on Corp. 84 ; Fennell, sec. 343. The old English rule stated in 
 
 in re, 24 Upper Can. Q. B. 238. A by-law the text was followed in New Jersey 
 
 fixing one penalty for the first offence, (State v. Zelgler, 3 Vroom (32 N. J. L.), 
 
 and a larger for the second, and a still 262, ante, sec. 337), but the reason of the 
 
 larger one for every subsequent oflence, matter and the general practice in this 
 
 does not appear to be bad for uncertainty, country is otherwise, and the text un- 
 
 Butchers' Co. v. Bullock, supra. Where doubtedly states correctly the American 
 
 the penalty is fixed by by-law, it can only doctrine. 
 
 be changed by the same authority which 2 gtate v. MoultrieTllle, Rice (So. Car.) 
 
 affixed it. Rex w. Ashwell, 12 East, 29 ; Law, 158, 1839. 
 
S48 MUNICIPAL COBPOEATIONS. [CH. XIL 
 
 § 343. (277) Where th^re is a limitation upon the corporation 
 as to the amount of penalties to be imposed for the infraction of 
 by-laws, they cannot exceed the limit directly, nor can they do 
 so indirectly by multiplying what is in substance one offence 
 into several, or subdividing one transaction or violation into a 
 number of offences, and annexing a penalty to each.^ But where 
 each offence is distinct, and the punishment for each is within the 
 power of the corporation to impose, the punishment is not made 
 illegal, though the separate fines in the aggregate exceed the limit 
 allowed by the charter, and are imposed by the same magistrate 
 or tribunal at one sitting.'^ 
 
 § 344. (278) By its charter, the power of a city corporation to 
 impose fines for breaches of its ordinances was limited to one 
 hundred dollars. By the charter the city had also the power to 
 regulate the inspection of flour, and passed an ordinance by which 
 any person selling flour without inspection should be fined " five 
 dollars for each barrel so sold." It was held that this ordinance, 
 as to the penalty, was valid so far as to authorize a fine not ex- 
 ceeding one hundred dollars ; that if a single sale exceeded twenty 
 barrels, the fine could be but one hundred dollars, while if it was 
 less than twenty barrels, the fine would be five dollars on each 
 barrel. The court observed that a recovery on a single trans- 
 action where more than twenty barrels were sold would bar any 
 future proceeding for the balance.^ 
 
 § 345. (279) Power of forfeiture must he expressly conferred, 
 — A corporation, under a general power to make by-laws, 
 cannot make a bj'^-law ordaining 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 
 authority must be expressly conferred by the legislature.* And 
 
 1 Mayor, etc. of New York v. Ordre- 2 Heise v. Town Council, 6 Kich. 
 
 naux, 12 Johns. (N. Y.) 122, 1815 (penalty (So. Car.) Law, 404 (fines for violating 
 
 for illegally keeping powder), citing and liquor ordinance) ; compare State u. 
 
 approving opinion of Lord MansfM in Town Council of Moultrieville, supra. 
 Crepps V. Darden, Cowp. 640. See also, ' Chicago ». Quimby, 38 111. 274, 1865. 
 Hart V. Mayor, etc., 9 Wend. 571, 588, * Kirk v. Nowill, 1 Term R. 118, 124, 
 
 606, 1832 ; Zylstra v. Charleston, 1 Bay per Mansfield and Buller, followed by 
 
 (So. Car.), 382, 1794 ; vide Stokes v. Coi^ Court of Errors of New York, in Hart v. 
 
 poration of New York, 14 Wend. (N. Y.) Mayor, etc. of Albany, 9 Wend. (N. Y.) 
 
 87. Continuing offence. Marshall ». Smith, 571, 588, per Sutherland, J.; p. 605, per 
 
 L, U 8 C. P. 416. Edmonds, Senator; 2 Kyd on Corp. 110; 
 
§ 346.] MUNICIPAL OEDINANCES OK BY-LAWS. 349 
 
 even if the power to declare a forfeiture is conferred, still no per- 
 son can, by ordinance, be deprived of his property by forfeiture 
 without notice or without legal investigation or adjudication ; an 
 ordinance in violation of this principle is void, as " contrary to 
 the genius of our laws and institutions. " ^ In England the power 
 of municipal corporations to impose a forfeiture for offences 
 created by ordinances or bj'-laws has been, in many cases, sanc- 
 tioned by usage, without any express power in the charter to 
 impose the forfeiture. But in this country, inasmuch as corpora- 
 tions 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 from usage.^ 
 
 § 346. (280) Power to fine does not include Power to forfeit. — 
 How strictly the courts hold that municipal corporations cannot 
 pass by-laws ordaining z, forfeiture is strikingly illustrated by the 
 case of Heise v. The Town Council of Columbia. The town 
 council had power to enforce obedience to their ordinances " by 
 fine, not exceeding fifty dollars." Special authority was given to 
 municipal corporations to grant licenses to retail liquor. The 
 council passed an ordinance relating to this subject, the penalty 
 for violating which was a " fine of not more than fifty, dollars 
 for each offence, and also a forfeiture of the license J" It was 
 held that the license which was granted and paid for was essen- 
 tially property ; that the council could only impose fines, and that 
 it had no power to ordain a forfeiture of the license, there being 
 (in the opinion of the court) no difference between the forfeiture 
 of a license and of goods and chattels.^ 
 
 Waicock on Municipal Corporations, 180, 1841 ; Miles v. Chamberlain, 17 Wis. 446 ; 
 
 pi. 449; Angell & Ames on Corp. sec. Donovan v. Vicksburg, 29 Miss. 247.; 
 
 860 ; Cotter v. Doty, 5 Ohio, 394, 1832 ; Cincinnati v. Buckingham, 10 Ohio, 257 ; 
 
 White V. Tallman, 2 Dutch. (N. J.) 67, post, sec. 348. 
 
 1856 ; Clerk i>. Tucket, 3 Lev. 281 ; Leeu. i Cotters. Doty, 5 Ohio, 384, 398; 
 
 Wallis, 1 Kenyon, 292 ; Adiey v. Reeves, Eosebaugh v. Saffin, 10 Ohio, 82, 1840. 
 2 Maule & S. 60 ; Phillips v. Allen, 41 2 Taylor v. Carondelet, 22 Mo. 105, 
 
 Pa. St. 481. In further illustration, see 112; Kirk v. Nowill, 1 Term R. 118; 
 
 Mayor, etc. «. Ordrenaux, 12 Johns. (N. Adley v. Reeves, 1 Maule & Sel. 60; 
 
 Y.) 122 ; Phillips v. Allen, 41 Pa. St. 481 ; Varden u. Mount, 15 Bush (Ky.), 1879, 
 
 Dunham u. Rochester, 5 Cowen (N. Y.), citing sec. 345. 
 
 462, 1826 ; Baxter v. Commonwealth, 8 ' Heise v. Town Council, etc., 6 Rich. 
 
 Pa. (Pen. &W.) 253; Bergen a. Clarkson, (So. Car.) Law, 404, 1853. As to revo- 
 
 1 Halst. (N.J.) 352; Taylor y. Caronde- cation of unexpired license for sale of 
 
 let (forfeiture of lease), 22 Mo. 105, 112; intoxicating liquors. State v. Cook, 24 
 
 Mayor,etc.ofMobilev. Yuille,3Ala. 137, Minn. 247, 1877, License to sell liquor 
 
350 MUNICIPAL COKPOKATIONS. [CH. XU. 
 
 § 347. (281) Judicial Procedure Necessary in some Instances. 
 — An ordinance of the city of New Orleans, authorizing without 
 any prior judicial proceedings, a sale, under the orders of the 
 mayor, of all property suffered to remain on the levee beyond a 
 specified period, is invalid, since it makes the corporation judges 
 and parties in the same cause, and enforces a forfeiture, and 
 divests the owner of his property without a trial in due course of 
 law. Such a power is not similar to that e"xercised by a corpora- 
 tion in removing nuisances, as that power arises from necessity 
 and ceases with that necessity. It would be competent for the 
 corporation to ordain that the property should be removed at 
 the expense of the proprietor, and to recover these expenses, 
 and any fine which might be imposed, by judicial proceed- 
 ings. ^ 
 
 § 348. (282) Forfeiture of Animals at Large. — The right to de- 
 nounce a forfeiture against animals running at large in a town or 
 city, contrary to the provisions of ordinances forbidding it, must be 
 plainly conferred or it will not be held to exist. This is in accord- 
 ance with the rule of the English courts, that a statute will not be 
 taken to invest, by implication, a municipal corporation with the 
 extraordinary powers of forfeiting the property of the subject, and 
 that, if it be intended that any such power shall be given, it must 
 be by express words to that effect. The cases agree in holding that 
 when the power to denounce the forfeiture against such animals 
 
 under the laws of the state is not a con- declaring that vested rights shall not be 
 
 tract, and may be terminated by a repeal divested unless for purposes of public 
 
 of the law. Fell v. State, 42 Md. 71, utility and for adequate compensation 
 
 1875 ; s. c. 20 Am. Rep. 83. The revo- previously made. It may be observed 
 
 cation by a municipal corporation of a that the court, without any special dis- 
 
 license to sell intoxicating liquors upon cussion, assumed that power " to regu- 
 
 certain specified conditions, a violation of late everything which relates to bakers " 
 
 which, according to the terms of the 11- gave authority to denounce a forfeiture of 
 
 cense, should have the effect to revoke it, bread baked contrary to the provisions 
 
 is not a forfeiture beyond the powers of of the ordinance of the city. See, on 
 
 the corporation. Hurber ». Braugh, 43 this point. Mayor, etc. of Mobiles. Yuille, 
 
 Iowa, 514, 1876. 3 Ala. 137, 1841. Assize of bread has 
 
 1 Lanfear v. Mayor, 4 La. 97, 1831. been deemed necessary from an early 
 
 Compare with Guillotte v. New Orleans, period in England, Burns, Justice. Title 
 
 12 La. An. 432, 1857, in which it was lield "Bread," construction of English statute 
 
 that an ordinance providing a forfeiture, regulating sale of bread. Queen t». Wood, 
 
 for the use of the city workhouse, of L. R. 4 Q. B. 559; Queen v. Kennett, L. 
 
 bread illegally baked in violation of an R. 4 Q. B. 567 ; Bread Co. v. Gregg, L. 
 
 authorized by-law of the corporation, is R. 8 Q. B. 356. 
 not contrary to a constitutional provision 
 
§ 350.] MUNICIPAL ORDINANCES OK BY-LAWS. 351 
 
 is given, there should be notice, either actual or constructive, or 
 prior legal proceedings. The view of the courts will be best 
 understood by referring to some of the cases upon the subject. In 
 Mississippi, an ordinance authorizing the seizure and sale of hogs 
 running at large, without notice or trial, or opportunity for trial, 
 and providing that one half of the proceeds of the sales should 
 go to the hospital and the other half to the city marshal, was 
 held to be in violation of the constitutional provision that no per- 
 son " can be deprived of his property but by due course of law," 
 and securing right to a jury trial.^ 
 
 § 349. (283) In a similar case in Ohio, Crrimlce, J., de- 
 livering' opinion of the court, observes : " The ordinance com- 
 mands the marshal to seize and impound the hogs, and then, 
 without any reserve, without any notice, by means of which the 
 owner might be able to exculpate himself, directs them to be 
 sold and the proceeds placed in the city treasury. Such an ordi- 
 nance is as contrary to the spirit of the charter ( Cincinnati ) as 
 it is alien from the general genius of our institutions." ^ 
 
 § 350. (284) In North Carolina the general principle was de- 
 clared that an ordinance of an incorporated town which author- 
 izes the property of one man to be taken from him and given to 
 another, without any notice to the owner or trial of his rights, 
 was unlawful. The town authorities, under power given to 
 make ordinances for the removal of nuisances and for the good 
 government of the town, passed an ordinance to this effect : 
 " That every hog at large in the said town shall be taken up and 
 penned, and advertised to be sold on the third day ; and unless 
 
 1 Donovan v. Vicksburg, 29 Miss. (7 lain, 17 Wis. 446, 1863; supra, sees. 338, 
 
 Gush.) 247, 1855; Poppen v. Holmes, 44 339. 
 
 III. 362 ; Daist u. People, 51 111. 286 ; 2 Rosebaugh v. Saffln, 10 Ohio, 32, 37, 
 
 Heise ». Columbia, 6 Rich. 404 ; Whitfield 1840. However It may be when the pow- 
 
 V. Longest, 6 Ire. (N. C. Law) 268; Mc- er to forfeit without notice or prior legal 
 
 Kee ». McKee, 8 B. Mon. (Kentucky) proceedings is explicitly conferred, it is 
 
 433; Jarman v. Patterson, 7 Mon. (Ken- clear that the power, unless plainly and 
 
 tucky), 647; Varden v. Mount, 15 Bush expressly given, cannot be exercised with- 
 
 (Kentucky), 1879 ; s. c. 10 C. L. J. 78. out such notice and previous adjudica- 
 
 Power to impose penalties on the owners tion ; but with these the remedy may, if 
 
 of animals running at large excludes, by needful, be " prompt and strong." Cin- 
 
 implication, the power to enforce a by- cinnati v. Buckingham, 10 Ohio, 257, 262, 
 
 Ihw upon the subject in any other way, per Lane, C. J. What is a running at 
 
 as, for example, by a sale of the ani- large. Kinder v. Gillespie, 63 III. 88, 1872 ; 
 
 mals found at large. Miles v. Chamber- Case v. Hall, 21 111. 632. 
 
352 MUNICIPAL COEPOEATIONS. [CH. XIL 
 
 the owner should pay the charges (specified in the ordinance) 
 for taking up and keeping such hog, and a sale is effected, the 
 money arising therefrom, after paying the charges, shall be paid 
 over to the owner of the said hog." The validity of this ordi- 
 nance was drawn in question, and two points were ruled by the 
 Supreme Court : 1. That the ordinance was reasonable, and the 
 corporation, under the power above referred to, had authority to 
 pass it ; 2. That it sufficiently provided for notice to the owner 
 by the impounding of the animal, and the three days' public 
 advertisement, and that personal notice was not necessary.^ In a 
 subsequent case in the same court a similar ordinance was sus- 
 tained. It was objected that it was invalid, because it provided 
 for no judicial decision condemning the property to be sold. 
 This objection the court regarded as insufficient, "since the 
 owner may, if he -choose, have a full investigation of the case 
 by bringing an action of replevin, as in any other case of dis- 
 tress." 2 
 
 § 351. (285) In South Carolina it has been held that under 
 authority to enforce by-laws by fine, an ordinance, otherwise 
 legal, which authorized the marshal to kill hogs running at large, 
 contrary to the ordinance, and appropriate them to his own use, 
 was void.^ 
 
 1 Shaw V. Kennedy (North Car.), Term to different owners are sold at once. lb. ; 
 R. 158, 1817 ; Helen v. Noe, 3 Ire. (N. C. ante, sec. 116. 
 
 Law) 493, 1843. Same principle. Spitlerw. » McSRae v. O'Lain, cited Kennedy ». 
 
 Young, 63 Mo. 42, 1876, holding that such Sowden, 1 McMullen (South Car.) Law, 
 
 an ordinance was unauthorized as a sani- 328. But authority to impose "fines and 
 
 tary or police regulation under power to penalties " authorizes a fine against those 
 
 abate nuisances. , who violate the ordinance forbidding 
 
 2 Whitfield V. Longest, 6 Ire. (Law) hogs running at large, and the seizure, 
 268,1846. In 7o!«a a similar ordinance was impounding, and sale (upon notice) of 
 sustained. Gosselink w. Campbell, 4 Iowa, the animals to pay the fine, whether they 
 296, 1856; Gilchrist u. Schmidling, 12 belong to residents or non-residents. 
 Kan. 263, 1873. Contra, Willis v. Legris, Kennedy o. Sowden, supra ; s. p. Crosby 
 45 111. 289, 1867 ; Bullock ». Geomble, 76. u. Warren, 1 Rich. (South Car.) Law, 
 218 ; Poppen v. Holmes, 44 111. 360. But 385, 1845, Wardlaw, J., dissenting ; Mc- 
 see Hart v. Mayor, etc. of Albany, 9 Kee v. McKee, 8 B. Mon. (Ky.) 433 
 Wend. (N. Y.) 571, 1832 ; White v. Tall- 1848 ; see Kinder v. Gillespie, 63 111. 88, 
 man, 2 Dutch. (N. J.) 67, 1856 ; Phillips 1872. But it seems doubtful, upon the' 
 V. Allen, 41 Pa. St. 481. Power must be principles adopted in the construction of 
 strictly pursued, or the sale will be' void, powers of this character, whether author- 
 and the" oflBcer a trespasser. Clark v. ity to impose fines and penalties extends 
 Lewis, 85 111. 417. See Friday v. Floyd, any further than to the imposition otpe- 
 63 111. 50, 1872, three judges dissenting, mniary fines and penalties. See Mayor of 
 Sale is void where two animals belonging Mobile w. Yuille, 3 Ala. 137; White v 
 
§ 353.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 353 
 
 § 352. (286) Equity will not ordinarily relieve against Valid 
 Forfeitures. — A forfeiture imposed by a municipal corporation, 
 under legislative authority for a violation of a valid by-law, and 
 inflicted as a penalty for such violation, cannot be relieved against 
 in equity, unless, perhaps, where peculiar circumstances furnish 
 grounds for equitable interposition, the general doctrine being 
 that equity may relieve against forfeitures declared by contrsict, 
 but not against those expressly declared or authorized by statute.' 
 
 § 358. (287) Power to enforce by Imprisonment must be ex- 
 pressly given. — In this country it is not unusual to provide, in 
 the organic act of municipal corporations, that if fines for viola- 
 tion of by-laws or ordinances are not paid, the offender may be 
 committed to prison for a limited period. And in respect to 
 some offences public in their character, the power to imprison in 
 the first instance is often confeiTed.^ It is scarcely necessary to 
 add that unless the authority be plainly given, it does not exist ; 
 and when given, before it can be exercised there must be a judi- 
 cial ascertainment by a competent tribunal or magistrate of the 
 guilt of the party.' 
 
 Tallman, 2 Dutch. (N.J.) 67, 1856. Tlie 
 power to forfeit, like the power to tax, 
 should be given either expresslj', or, at all 
 events, by necessary implication. And it 
 has been held that it cannot be implied 
 from the power " to impose reasonable 
 fines," and to cause " all such lines and 
 all such forfeitures and penalties as may 
 be incurred under the laws and ordi- 
 nances of the corporation to be assessed, 
 levied, and collected." Cotter v. Doty, 5 
 Ohio, 39.>, 1832. 
 
 » Taylor v. Carondelet, 22 Mo. 105 
 (forfeiture clause in lease) ; Peachy o. 
 Somerset, 1 Str. 447 ; Gorman v. Low, 2 
 Edw. Ch. 324 ; Keating v. Sparrow, 1 
 Ball & Beat. 867 ; State v. Railroad Co., 
 8 How. (U. S.) 534. 
 
 * Barter v. Commonwealth, 3 Pa. (Pen. 
 & W.) 253, 1831 ; New Orleans v. Cos- 
 tello, 14 La. An. 37 ; Burlington v. Kellar, 
 18 Iowa, 59; London v. Wood, 12 Mod. 
 686 ; Bab v. Clerke, Moore, 411 ; Clarke's 
 Case, 5 Co. 64; 1 Roll. Abr. 364; Cora. 
 Dig. By-Law,E. 1 ; Chilton v. Eailway Co., 
 16 M. & W. 212 ; King o. Merchant Tai- 
 lors' Co., 2 Lev. 200. 
 
 VOL. I. 23 
 
 ' Burnett, in re, 30 Ala. 461, 1857. 
 Charter power to punish violations of or- 
 dinances " by fines, imprisonment, labor, 
 or other penalty prescribed by ordinance " 
 will authorize the city council to pre- 
 scribe as punishment either fine or im- 
 prisonment (not both), and not even 
 imprisonment as means of enforcing pay- 
 ment of a fine. Brieswick v. Brunswick, 
 51 Ga. 639, 1874; s. c. 21 Am. Rep. 240. 
 Fines for the violation of ordinances, held 
 under special charter provisions, collecti- 
 ble by commitment of the persons, or by 
 fieri facias. Huddleson u. Rufiin, 6 Ohio 
 St. 604. The power to punish offenders 
 by fine or imprisonment, conferred upon 
 a municipal corporation, does not include 
 the authority to coerce the payment of a 
 fine by imprisonment. Brieswick v. 
 Brunswick, 51 Ga. 639, 1874. Authority 
 to enforce penalties for violations of ordi- 
 nances by " distress and sale " of property 
 must be expressly or plainly granted. 
 White w. Tallman, 2 Dutch. (N. J.) 67, 
 1856; Bergen w. Clarkson, 1 Halst. (N.J.) 
 352, A law authorizing a municipal cor- 
 poration to recover a fine for breach of 
 
354 MUNICIPAL COEPOEATIONS. [CH. XII. 
 
 On whom Ordinances are binding, and who must notice them. 
 
 § 354. (288) Who bound. — In England the by-laws of a mu- 
 nicipal corporation bind not only the members, but, if they are 
 general in their nature and purposes, and not limited to any par- 
 ticular class or description, but intended to extend to all persons 
 coming, within the local jurisdiction of the corporation, they bind 
 all, whether members or strangers, and all must take notice of 
 them at their peril. And by-laws made by a municipal corpora- 
 tion with respect to a liberty or franchise granted them, with 
 local jurisdiction beyond the limits of the municipality, are as 
 binding upon persons going into the liberty as the by-laws of the 
 city upon those who come within its walls.^ 
 
 § 355. (289) So, also, in this country it is settled that valid 
 ordinances bind not only the inhabitants of the corporation, but 
 also strangers or non-residents coming within its limits. These, 
 for the time being, are regarded as inhabitants, and liable in the 
 same manner for violations of ordinances.^ So far is plain. But 
 suppose a person living without the limits of the corporation 
 suffers his cattle or property to stray into it and violate its ordi- 
 
 a police regulation does not, without ex- Godb. 252. An ordinance passed in 1834, 
 
 press provision therefor, authorize the prohibiting the erection of " stables, etc., 
 
 arrest and criminal prosecution of the in the interior of the city of New Orleans, 
 
 offender. State o. Ruff, 30 La. An. 497. or any of its incorporated suburbs," held 
 
 And in England, likewise, such a power not to extend to the city of Lafayette, 
 
 cannot be conferred by the crown, and subsequently added, by act of the legisla- 
 
 can only exist by authority of parliament ture, to tlie city of New Orleans. New 
 
 or a special custom. Gierke ». Tucker, Orleans v. Anderson, 9 La. An. 323, 1854. 
 3 Lev. 281; B. c. 2 Vent. 183; Lee ». ^ Heland v. Lowell, 3 Allen (Mass.), 
 
 Wallis, 1 Kenyon, 296; Sayer, 263; 407, 1862; Whitfield i>. Longest, 6 Ire. 
 
 Adiey v. Eeeves, 2 Maule & Sel. 60; (Law) 268, 1846; approving Pierce v. 
 
 VVillc. 179; Glover, 311. Verbal order Bartram, Cowp. 269. See also Buffalo 
 
 of police magistrate will not justify police v. Webster, 10 Wend. (N. Y.) 99; 
 
 officer in holding a person in custody for Commrs. of Wilmington v. Roby, 8 
 
 the nonpayment of a fine imposed for Ire. (Law) 250 ; Commrs. of Ply- 
 
 the breach of a municipal ordinance, mouth v. Pettijohn, 4 Dev. (Law) 591; 
 
 Board of Trustees ... Schroeder, 58 111. Strauss „. Pontiac, 40 111. 301, 1866 ; 
 
 353, 1871. City Council v. Pepper, 1 Rich. (South 
 
 1 Willc. 105, 107; Glover, 289, 290; Car.) Law, 364, 1845; City Council 
 
 London v. Vanacre, 1 Ld. Raym. 498; v. King, 4 McCord (South Car.), 487; 
 
 Salk. 143; Pierce w. Bartram, Cowp. 270; Marietta v. Fearing, 4 Ohio, 427, 
 
 Fazakerley v. Wiltshire, 1 Stra. 462; 1831; Dodge v. Gridley, 10 Ohio, 173; 
 
 Kirk «. Nowill, 1 Term R. 118; Butcher Homey v. Sloan, 1 Smith (Ind.), 136; 
 
 Co. 0. Mercy, 1 H. Bl. 370. Do not bind Kennedy v. Sowden, 1 McMuUen (South 
 
 beyond limits of authorized jurisdiction. Car.), 323. Taxation of non-residents 
 
 See 3 Mod. 158 ; T. Jones, 144 ; 2 Brownl. using streets. Post, sec. 682, note. 
 177; Hob. 211; Hutt. 6; 11 Rep. 53; 
 
§ 356.] 
 
 MUNICIPAL ORDINANCES OE BY-LAWS. 
 
 355 
 
 nances. Here two questions may arise : 1st. Can such property, 
 being within the coiporation, be dealt with the same as if it be- 
 longed to an inhabitant of the corporation ? It is held that it 
 can.i 2d. Can such non-resident owner be made amenable pef- 
 gonally to a penalty to the corporation ? In other words, has a 
 corporation power, unless expressly conferred, to provide for col- 
 lecting a penalty from a non-resident who suffers his property to 
 violate an ordinance, but who himself was, at the time, without 
 the corporate limits? This remains, perhaps, to be settled, 
 though it is certain that ordinances will not be construed to ex- 
 tend to persons living without the corporation and not being 
 within it, unless such an intention plainly appears.^ 
 
 § 356. (290) Notice. — All persons upon whom ordinances are 
 binding are bound to take notice of them.* But where a party 
 is liable to a penalty if he does not do a given act upon notice, a 
 newspaper notice is not sufficient, unless that mode is pointed out 
 by the law, or general power is given to the corporation embiac- 
 
 1 Whitfield o. Longest, 6 Ire. (Law) 
 268, 1846 ; Gosselink v. Campbell, i Iowa, 
 296, 300, 1856 ; Reed v. People, 1 Park. 
 Cr. Rep. 481. The point was also ruled 
 the same way in Spitler v. Young, 63 Mo. 
 42, 1876 ; but the ordinance was construed 
 not to apply to a case where the hogs 
 owned outside of the corporation escaped 
 from a pen in consequence of a flood, over 
 which the owner had no control, which 
 washed the pen away, and where the 
 owner was using diligence to reclaim 
 them. Wagner, J., says, " While the hogs 
 in this case were found in the streets, yet 
 they were not there within the meaning 
 and spirit of the ordinance, which was 
 designed to prohibit hogs from running 
 at large in the ordinary sense." 
 
 2 Plymouth u. Pettijohn, 4 Dev. (Law) 
 591. Inability to punish non-resident 
 owner criminally in respect to property 
 within corporate limits, see Reed_». Peo- 
 ple, 1 Park. Cr. Rep. 481. Power "to 
 make such prudential rules and regula- 
 tions as may seem necessary for the bet- 
 ter improving of the common lands of a 
 town," etc., extends only to regulations 
 as between those who have the right to 
 enjoy them in common, but does not con- 
 fer the power of imposing a penalty for 
 
 / strangers; for such acts the 
 town must pursue its common-law rem- 
 edy. Foster v. Rhoads, 19 Johns. (N. Y.) 
 191, 1821. See, also, People v. Works, 
 7 Wend. (N. Y.) 486; HoUaday v. Marsh, 
 3 Wend. (N. Y.) 142. City held not to 
 have power to require a license tax from 
 non-resident owners of wagons engaged 
 in hauling into and out of the city for 
 hire. St. Charles v. Nolle, 51 Mo. 122, 
 1872. See Index, Vehicles. Ordinances 
 cannot have an exira-territorial effect, 
 unless the power be plainly conferred 
 upon the corporation. Strauss v. Pontiac 
 (liquor ordinance), 40 111. 301, 1866; Gos- 
 selink V. Campbell, 4 Iowa, 296 ; Robb v. 
 Indianapolis, 38 Ind. 49, 1871 ; Chicago 
 Packing Co. v. Chicago, 88 111. 221, 1878. 
 Whether a party resides within the limits 
 embraced by an ordinance is a question 
 of fact. Board v. Pooley, 11 La. An. 
 743; Police Jury v. Villaviabo, 12 lb 
 788 ; New Orleans v. Boudu, 14 lb. 303. 
 
 i" Palmyra v. Morton (sidewalk ordi- 
 nance), 25 Mo. 593, 1860 ; Buffalo v. 
 Webster, 10 Wend. (N. Y.) 99, 1883. 
 See Reed v. People, 1 Park. Cr. Rep. 
 481 ; City of London n. Vanacre, 12 Mod. 
 270, 272; Glover on Corp. 207, 290; post, 
 sees. 606, 803. 
 
356 
 
 MUNICIPAL COBPOEATIONS. 
 
 [CH. Xlt 
 
 ing within it the authority to prescribe the kind and manner of 
 notice.^ 
 
 Ordinances Relating to the Licensing, Regulation, and Taxing of 
 Amusements and Oocupations, Including the Sale of Intoxicating 
 Liquors. 
 
 § 357. (291) Nature of License Power. — Charters not un- 
 frequently confer upon the corporation the power " to license 
 and regulate " or to " license, reflate, and tax " certain avoca- 
 tions and employments, and to " tax and restrain " or " prohibit " 
 exhibitions, shows, places of aniusement, and the like, and unless 
 there is some specific limitation on the authority of the legislature 
 in this respect, such provisions are constitutional.^ Where, by 
 the charter of a city, the power to license a particular occupation 
 within its limits is given to the common council, such power in- 
 volves the necessity of determining with reasonable certainty 
 both the extent and duration of the license and the sum to be 
 
 • Keckeley ». Commissioners of Roads, 
 i McCord (S. Car.), 257, 1828. 
 
 a City «. Clutcii, 6 Iowa, 546, 1858. 
 In Mayor, etc. of Mobile v. Yuille, 3 Ala. 
 137, 1841, it was determined tliat there 
 was notliing in the constitution of the 
 ilTate which would invalidate a grant of 
 power to a municipal corporation " to 
 license bakers, and regulate the weight and 
 price of bread, and to prohibit the baking, 
 for sale, except by those licensed." Such 
 a grant of power does not unlawfully in- 
 terfere with the right of citizens to pur- 
 sue their lawful occupations. In the City 
 of Boston V. Schafier, 9 Pick. (Mass.) 
 415, 1830, it was decided that it is compe- 
 tent for the legislature to grant a city or 
 town power to require the payment of 
 money as the condition of exercising par- 
 ticular employments, e. g. giving theatri- 
 cal or other exhibitions. This is not in 
 the nature of a tax, which must be gen- 
 eral,'but of an excise on special vocations. 
 Approved, Cincinnati v. Bryson, 15 Ohio, 
 625; New Orleans v. Turpin (auctioneers), 
 13 La. An. 56, 1858; Municipality v. 
 Dubois (livery-Btable keeper), 10 lb. 66; 
 Charity Hospital v. Stickney, 2 La. An. 
 650 ; Slaughter v. Commonwealth, 13 
 Gratt. (Va.) 767; Carrol v. Mayor, etc., 
 12 Ala. 173; Merriam v. New Orleans, 
 
 14 La. An. 318; Wynne ». Wright, 1 
 Dev. & B. (N. Car.) Law, 19 ; The Mayor, 
 etc. V. Hartridge, 8 Ga. 23; Cincinnati 
 t'. Bryson, 15 Ohio, 625, dissenting opin- 
 ion of Burchard, J. ; Collins v. Louisville, 
 2 B. Mon. (Ky.) 134; The Germania v. 
 State, 7 Md. 1 ; The State v. Roberts, 11 
 Gill & Johns. (Md.) 506; Sears v. West, 
 1 Murph. (N. Car.) 291 ; People v. Thur- 
 ber, 13 III. 557; Savannah v. Charlton, 
 36 Ga. 460, 1867. Forbidding driving of 
 carts without license. Who are cartmen ? 
 Brooklyn ». Breslin, 57 N. Y. 691, 1874; 
 post, sees. 785, 791 ; see chapter on Taxa- 
 tion, ;jos/,- ante, sec. 115; Kniper v. Louis- 
 ville, 7 Bush (Ky.), 599. 
 
 These cases show some diversity of 
 opinion as to the right to tax particular 
 employments as distinguished from prop- 
 erty ; but the correct view, it is submitted, 
 la this : Unless specially restrained by 
 the constitution, the legislature may pro- 
 vide for the taxing of any occupation or 
 trade, and may confer this power upon 
 municipal corporations. But such taxes 
 are apt to be inequitable, and the principle 
 not free from danger of great abuse. 
 Hence ordinances of this character ought 
 not to be sustained, unless the authority 
 be expressly or otherwise unequivocally 
 conferred. 
 
§ 357.] 
 
 MUNICIPAL ORDINANCES OH BY-LAWS. 
 
 357 
 
 paid therefor ; and must be exercised bj' the common council, and 
 cannot be delegated by it, in whole or in part, to any person or 
 authority.^ Concerning useful trades and employments, a dis- 
 tinction is to be observed between the power to " license " and 
 the power to " tax." In such cases the former right, unless such 
 appears to have been the legislative intent, does not give the au- 
 thority to prohibit, or to use the license as a mode of taxation 
 with a view to revenue, but a reasonable fee for the license and 
 the labor attending its issue may be charged. Respecting amuse- 
 ments, exhibitions, etc., the authority of the corporation under 
 the power to license has been regarded as greater than when the 
 same word is employed as to trades and occupations.^ Words of 
 
 1 Darling v. St. Paul, 19 Minn. 889, 
 1872. Compare this case, however, with 
 Uecorah v. Dunstan, 38 Iowa, 96, 1874, in 
 which it was held that where an incorpo- 
 rated town had the power to regulate 
 and license auction sales, etc., and to pass 
 all ordinances necessary to exercise that 
 power, an ordinance authorizing the mayor 
 to fix the amount of the license within a 
 specified sum was held not to be Invalid. 
 The general doctrine on the subject of the 
 delegation of municipal powers is elsewhere 
 discussed ; and the line drawn between 
 duties of a ministerial and executive char- 
 acter which may be delegated, and legisla- 
 tive or discretionary powers which may 
 not be delegated. Ante, sec. 96 ; post, 
 sees. 716, 780. 
 
 2 Ash V. People, 11 Mich. 347 ; ante, 
 sec. 115; Youngblood i>. Sexton (distinc- 
 tion between license and taxation), 82 
 Mich. 406, 1876; 8. c. 20 Am. Eep. 654; 
 St. Paul V. Treager, 25 Minn. 248, 1878. 
 Power " to exact license money " and " to 
 regulate " the sale of liquors held not to 
 confer power to prohibit the sale thereof. 
 Sweet V. Wabash, 41 Ind. 7, 1872. Free- 
 holders V. Barber, 2 Halst. (N. J.) 64 ; Car- 
 roll V. Tuscaloosa, 12 Ala. (N. S.) 173; 
 Greensboro v. MulUns, 18 lb. 841 ; State 
 V. Roberts, 11 Gill & Johns. (Md.) 506; 
 City Council v. Ahrena, 4 Strob. (So. Car.) 
 241 ; Kip V. Patterson, 2 Dutch. (N. J.) 
 298; Portland v. O'Neill, 1 Oregon, 
 218; Bennett v. Birmingham, 31 Pa. St. 
 16; Commonwealth v. Stodder, 2 Cush. 
 (Mass.) 662; Day v. Green, 4 Cush. (Mass.) 
 438 ; Dunham v. Rochester, 5 Cow. (N. Y.) 
 
 462 ; Lawrenceburg f. West, 16 Ind. 337 ; 
 Cheney v. Shelbyville, 18 Ind. 84; Leaven- 
 worth V. Booth (construing words " license 
 tax "), 15 Kan. 627, 1875 ; Welch v. Hotch- 
 kiss (building license fee of fifty cents sus- 
 tamed), 39 Conn. 140, 1872; 8. c. 12 Am. 
 Rep. 383 ; post, sec. 405, note. St. Paul v. 
 Treager, 25 Minn. 248, approving text ; 
 Bennett v. People, 30 111. 389; East St. 
 Louis V. Wehrung, 46 111. 392 ; Savannah 
 V. Charlton, 36 Ga. 460; Darling .;. St. 
 Paul, 19 Minn. 389, 1872, citing text ; post, 
 ch. xix. 
 
 Distinction between taxation and police 
 regulation well stated by Depue, J., in State 
 V. Hoboken, 33 N. J. L. 280, 1869; Com- 
 monwealth V. Markham, 7 Bush (Ky.), 
 486, 1870; State v. Cassidy, 22 Minn. 312; 
 post, sec. 768; see, also. Kip v. Patterson, 
 2 Dutch. (N. J.) 298; Mayor v. Avenue 
 Railroad Company, 32 N. Y. 261 ; 88 lb. 
 42, distinguished and questioned in Frank- 
 ford Railway Company v. Philadelphia, 
 58 Pa. St. 119, 1868 ; Johnson v. Philadel- 
 phia, 60 Pa. St. 445 ; Freeholders v. Bar- 
 ber, 2 Halst. (N. J.) 64. Difference be- 
 tween tax and a license to exercise par- 
 ticular callings upon making pecuniary 
 compensation for the privilege. People 
 V. Thurber, 13 111. 557 ; Mount Carmel ». 
 Wabash Co., 50 111. 69 ; Kniper v. Louis- 
 ville, 7 Bush (Ky. ), 699. Smith v. City 
 of Madison, 7 Ind. 86, 1856, so far as it 
 holds that authority " to suppress and re- 
 strain " bowling saloons confers the power 
 to license and tax them, cannot, Hs it 
 seems to us, be sustained. Mayor, etc.^v. 
 Beasley, 1 Humph. (Tenn.) 240, holdfr 
 
358 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XXL 
 
 this character, however, do not always have exactly the same 
 meaning, and the intention of the legislature in using them must 
 often be gathered from the whole charter and the general legisla- 
 tion of the state respecting the subject-matter. 
 
 § 368. ( 292) In harmony with the foregoing principles, it has 
 been held that, under authority " to license and regulate " dray- 
 men, etc., a municipal corporation may, by ordinance, require a 
 license to be first taken out, and charge a reasonable sum for is- 
 suing the same and keeping the necessary record, but cannot, by 
 virtue of this authority, without more, levy a tax upon the occu- 
 pation itself; and, under the power to regulate, it may make 
 proper police regulations as to the mode in which the employment 
 shall be exercised.^ 
 
 that power in a charter to regulate and 
 restrain tippling-Iiouses did not confer the 
 power to tax them. Construction of word 
 "restrain" (Emporia ». Volmer, 12 Kan. 
 622, 630, 1874) held not to be synony- 
 mous with the words " prohibit " or " sup- 
 press." Approving text. Frank, in re, 52 
 Cal. 606 ; Hudson, etc. t;. Hoboken, 41 N. 
 J. L. 71. 
 
 One who sells his own goods at public 
 auction, as well as one who sells anotlier's, 
 is an " auctioneer," allowing the common 
 council of any municipality to require a 
 license, etc. Goshen v. Kern, 63 Ind. 468. 
 The power thus conferred on a common 
 council is in the nature of a police regula- 
 tion, lb. 
 
 ' Cincinnati v. Bryson, 15 Ohio, 625, 
 1846. As to correctness of application of 
 the principle of law to the facts, qucere. 
 Consult, in connection with the above 
 case, Mays v. Cincinnati, 1 Ohio St. 268, 
 1853; with which compare Cincinnati v. 
 Buckingham, 10 Ohio, 261 ; and see cases 
 cited supra, sec. 357 ; Mays v. Cincinnati, 
 supra, cited by Cornell, J., in St. Paul v. 
 Treager, 26 Minn. 248, 1878. An act to 
 regulate and license the keeping of dogs 
 was regarded as an exercise of the police, 
 and not the taxing power of the state, 
 and not to be within tlie constitutional 
 provision requiring uniformity of taxation. 
 Carter v. Dow, 16 Wis. 298, 1862 ; Tcn- 
 ney v. Lenz, lb. 566. In the case last 
 cited, Paine, J., observes : " We cannot 
 assent to the position that, if the sum re- 
 
 quired for a license exceeds the expense of 
 issuing it, the act transcends the licensing 
 power, and imposes a tax. By such a 
 theory the police power would be shorn 
 of all efficiency. . . . We have no doubt, 
 therefore, that the legislature may, in 
 regulating any matter that is a proper 
 subject of the police power, impose such 
 sums for licenses as will operate as partial 
 restrictions upon the business, or upon 
 the keeping of the particular kinds of 
 property regulated." See, also. Fire De- 
 partment V. Helfenstein, 16 Wis. 136. 
 Special constitutional provisions in refer- 
 ence to taxation have been held to have 
 no reference to license taxes. Leaven- 
 worth V. Booth, 15 Kan. 627, 635, 636, 
 1875; Anderson o. Kerns Drain Co., 14 
 Ind. 201 ; Bright v. McCuUough, 27 Ind. 
 223, 232 ; People v. Coleman, 4 Cal. 46. 
 
 The law recognizes property in dogs, 
 and a city ordinance requiring the owner of 
 such property to obtain a license to keep 
 the same, and subjecting him to arrest, 
 fine, and imprisonment for not procuring 
 such license, is invalid. Washington v. 
 Mays, 1 McArthur, 63; Harrington o. 
 Miles, 11 Kan. 480. See on this general 
 subject, State v. Cymis, 26 Ohio St. 400 ; 
 Ward V. State, 48 Ala. 161 ; post, sec. 768 ; 
 ante, sec. 141. 
 
 The legislature may, for police pur- 
 poses, prescribe the limits of municipal 
 bodies, enlarging or contracting them at 
 pleasure, and give them power to pass or- 
 dinances to prevent nuisances to operate be- 
 
359.] 
 
 MUNICIPAL ORDINANCES OK BY-LAWS. 
 
 359 
 
 § 359. (293) So authority to a city to adopt rules and orders 
 " for the due regulation of omnibuses, stages, etc.," was held not to 
 authorize the adoption of an ordinance requiring the payment of a 
 tax or duty on each carriage licensed, varying from one to twenty 
 dollars, according to the different kinds of carriages, and the 
 stands occupied. This was regarded as a direct tax upon the 
 vehicle used or its owner, and not necessary to secure the objects 
 of the above grant of power to the city.^ So where, under an 
 
 yond their botindaries. Thus a packing 
 house wtiieh has been licensed by the town 
 where it is located, but within one mile 
 of the corporate limits of a city, does not 
 exempt the same from an ordinance of 
 that city requiring it to be licensed by 
 that municipality. The iierson using the 
 establishment is liable to be charged a 
 license by both the town and city. Chi- 
 cago, etc. Co. 0. Chicago, 88 111. 221. 
 
 In Ash V. People, 11 Mich. 347, 1863, 
 it appeared that, by its charter, authority 
 was given to a city to erect, establish, 
 and regulate markets and market-places, 
 and to license and regulate butchers and 
 shop-keepers at any other place in the 
 city, for the sale of meats, etc., and to au- 
 thorize the mayor to grant such licenses 
 and to prescribe the sum of money to be 
 paid into the treasury of the city therefor. 
 An ordinance prohibiting the keeping of 
 meat-shops outside of the public markets 
 without a license, and requiring the pay- 
 ment of a license fee of five dollars, was 
 sustained, although the amount exceeded 
 the expense of making and registering 
 the license. The court denied that the 
 fee demanded was a tax, and regarded it 
 as but a reasonable compensation for the 
 additional expense of municipal supervi- 
 sion over the business at the place licensed. 
 
 A Jerri/ license fee ai fifty dollars was 
 held not to be a tax, within the meaning of 
 the term, as used in the constitution of 
 Michigan and the charter of the city of De- 
 troit. Cliilvers v. People, 11 Mich. 43, 
 1862; ante, sec. 115. "The power to li- 
 cense and regulate carries with it the right 
 to require the payment of a [reasonable] 
 sum in consideration of the license." 
 Per Wright, J., in State v. Herod, 29 Iowa, 
 128, 1870. Whenever a municipal cor- 
 poration is authorized to make by-laws 
 relative to a given subject, and to require 
 
 of those who desire to do any act or trans- 
 act any business pertaining thereto to 
 obtain a license therefor, the reasonable 
 cost of granting such licenses may be 
 properly charged to the persons procur- 
 ing them, altliougli tlie power to do so is 
 not expressly given in the charter. Welch 
 V. Hotchkiss, 39 Conn. 140, 1872 ; post, 
 ch. xix, sec. 768. 
 
 ' Commonwealth v. Stodder, 2 Cuah. 
 (Mass.) 562, 572, 1848 ; distinguished from 
 Boston I?. SchafEer, 9 Pick. (Mass.) 415, 
 as to licenses for theatrical exhibitions. 
 Power to the city council of Charleston 
 to make, inter alia, " such ordinances re- 
 specting streets, carriages, wagons, carts, 
 drays, etc. as to them shall seem expedi- 
 ent and necessary," was held to authorize 
 an ordinance requiring all persons who 
 drive for hire any cart, dray, wagon, or 
 omnibus, within the city, to take out a 
 license, and to require the vehicle to be 
 numbered, or on failure to do so to pay a 
 fine. City Council v. Pepper, 1 Rich. 
 (South Car.) Law, 364, 1845. A street- 
 sprinkling cart is a " public vehicle " on 
 which a license tax is properly imposed. 
 St. Louis V. Woodruff, 4 Mo. App. 169. 
 A similar ordinance, imposing annual 
 charge on eacli car of a street-railway 
 company, was sustained as a police regu- 
 lation. Frankfiird Railway Company v. 
 Philadelphia, 58 Pa. St. 119, 1868; s. p. 
 Johnson n. Philadelphia, 69 Pa. St. 445. 
 A municipal corporation may under its 
 ordinary powers of local government pass 
 ordinances requiring a street-railway 
 company incorporated by legislature, and 
 having its rails down and in use through 
 the streets, under legislative sanction, to 
 make its tracks conform to the grade, 
 keep in repair the space between the 
 rails, to remove snow and the like. But 
 it has no power to require such a com- 
 
360 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIX 
 
 act authorizing the trustees of a village corporation to make or- 
 dinances " in relation to hucksters, and for the good government 
 of the village," it was held that an ordinance was unauthorized 
 which required that hucksters should, before exercising their erri- 
 ployment, take a license, and be taxed a sum varying from five to 
 thirty dollars.^ 
 
 § 360. (294) On the other hand, the power to " license, regu- 
 late, and restrain amusements," ^t was admitted or taken for 
 granted, would authorize an ordinance taxing, or requiring exhib- 
 itors to pay a specific sum for the privilege, this being considered 
 as a means of regulating and restraining them.^ So a grant of 
 power to a city or town to license exhibitions " on such terms and 
 conditions as to it may seem just and reasonable," authorizes it 
 to exact money for the license ; it is not confined to regulating 
 time and place, establishing police regulations, etc.^ 
 
 pany so organized to take out a, license 
 and pay license fee as a means of taxa- 
 tion, unless povrer is given to resort to 
 licenses and license fees for revenue pur- 
 poses. A provision in the charter, grant- 
 ing power " to license and regulate," does 
 not autliorize the exaction of license fees 
 for revenue purposes. Power to license 
 when specially given in a charter is never- 
 theless a police power. The exaction of 
 license fees for revenue purposes is the 
 exercise of the power of taxation. The 
 distinction between the power to license 
 as a police regulation and the same power 
 as a revenue measure is of the utmost 
 importance. If granted with a view to 
 revenue, the amount of tax, if not limited 
 by charter, is in the discretion and judg- 
 ment of the authorities ; if given as a police 
 power, it must be exercised as a means of 
 regulation only and cannot be used as a 
 source of revenue. North Hudson Railway 
 Co. a. Hoboken, 41 N. J. L. 71 ; Mayor v. 
 Avenue Railroad Co., 32 N. Y. 261. Power 
 to license, tax, and regulate horse rail- 
 roads, hackney carriages, etc., does not 
 extend to taxation of jirivate vehicles used 
 by a merchant or manufacturer. St. 
 Louis ». Grove, 46 Mo. 574, 1870. Nor 
 does power to license, tax, and regulate 
 authorize the grant of an exclusive right 
 to run omnibuses within the limits of the 
 city. Logan ». Pyne, 43 Iowa, 524, 1876 ; 
 Snyder v. Lawrence (hackney coach, 
 what is), 8 Kan. 82, 1871. 
 
 ' Dunham v. Rochester, 5 Cowen. (N. 
 Y.) 462, 466, 1826. See further. Index, 
 Markets. 
 
 Under a charter authorizing the license 
 of wagons, etc., and requiring owners and 
 keepers of wagons, etc., using them in the 
 city, to take out a license, all hucksters, 
 gardeners, etc., who are not residents and 
 tax-payers of other towns may be com- 
 pelled to take out a license. Frommer v. 
 Richmond, 31 Gratt. 646. A city has no 
 right to require that persons owning vehi- 
 cles for hire within its limits and who 
 have paid their city licenses shall obtain 
 from the city, at a certain fixed and ex- 
 orbitant price, the plates which an ordi- 
 nance of the city has prescribed for the 
 convenient identification of the vehicles. 
 Such an exaction is another license in 
 disguise, and therefore unconstitutional. 
 Walker v. New Orleans, 31 La. An. 828. 
 
 2 Hodges V. Mayor, 2 Humph. (Tenn.) 
 61. See also, Carter v. Dow, 16 Wis. 
 299 ; Tenney v. Lenz, 76. 567. Speaking 
 of this subject, Mr. Justice Cooley ex- 
 presses it as his opinion that, where the 
 right to impose license fees to operate as 
 a restriction upon the business or thing 
 licensed can be fairly deduced from the 
 taxing power conferred upon the corpora- 
 tion, it should be done, rather than to 
 derive the right solely from the power to 
 regulate. Const. Lim. 202, note. 
 
 « Boston V. Schaffer, 9 Pick. (Mass.) 
 415, 1880; distinguished from Common- 
 
§ 362.] 
 
 MUNICIPAL ORDINANCES OK BY-LAWS. 
 
 361 
 
 § 861. (295) Right must be plainly conferred. — Even the 
 right to license must be plainly conferred, or it will not be held 
 to exist. Thus, power to make " by-laws relative to hucksters, 
 grocers, and victualling shops " does not authorize the corporation 
 to exact a license from persons carrying on such business. Nor 
 does the general power to pass prudential by-laws, not inconsist- 
 ent with the laws of the state, confer the authority to demand a 
 license.^ • 
 
 § 362. (296) Monopolies Invalid. — The power to license and 
 regulate a lawful and necessary business will not give the corpo- 
 ration the power to make contracts which create or tend to 
 create a monopoly.^ 
 
 wealth V. Stodder, 2 Cush. (Mass.) 662, 
 572, 1848. 
 
 1 Dunham v. Rochester, 5 Cow. (N. 
 Y.) 462, 1826; Commonwealth v. Stodder, 
 
 2 Cush. (Mass.) 562, 1848; Mays v. Cin- 
 cnmati, 1 Ohio St. 268, 1853 ; Gale v. Kala- 
 mazoo (market-house contract), 23 Mich. 
 344, 1871 ; s. c. 9 Am. Rep. 80 ; St. Paul 
 V. Treager, 25 Minn. 248, 1878. By-laws 
 requiring a license, which may be so heavy 
 as to amount to a prohibition, were justly 
 considered to be in restraint of trade, 
 which the general law favors, and in this 
 case were adjudged void, "both for want 
 of jurisdiction " in the corporation to pass 
 them, and for want of " conformity to the 
 general law." 1 Ohio St. 268. Where 
 the charter gave the corporation the 
 power " to license bakers, and to prohibit 
 sales of bread except by those licensed," 
 the court doubted whether under this, 
 aside from the taxing power of the corpo- 
 ration, an ordinance could be supported 
 which required twenty dollars to be paid 
 by the baker for a license, although it 
 admitted that the corporation could re- 
 quire a fee for issuing and registering the 
 license. Mayor, fitc. of Mobile v. Yuille, 
 
 3 Ala. 137, 1841. Statutory conditions 
 precedent must be complied with to make 
 a license valid ; and licenses are generally 
 considered personal, ceasing with the life 
 of the license, and not transferable with- 
 out consent. Munsell v. Temple (grocery 
 license), 3 Gilm. (8 111.) 96; Lewis v. 
 United States, Morris (Iowa), 199 ; Lom- 
 bard V. Cheever (ferry license), lb. 473; 
 
 Brunette v. Mayor, 9 La. An. 430. As to 
 power to revoke licenses. Towns v. Talla- 
 hassee, 11 Fla. 180, 1866. "Junk shops," 
 defined by O'Neali., C. J., " to be a place 
 where odds and ends are purchased or 
 sold," and cities are often empowered to 
 exact a license from keepers thereof. 
 City Council v. Goldsmith, 12 Rich. 
 (South Car.) Law, 470, 1860. Shows de- 
 fined: McKee v. Town Council, Rice 
 (South Car. ) Law, 24. Licensed auctioneer 
 held not liable to the payment of a pawn- 
 broker's license, under a city ordinance. 
 Hunt V. Philadelphia, 35 Pa. St. 277. 
 
 2 Chicago V. Rumpff, 46 III. 90, 1867. 
 In this case, under a power granted to the 
 city, in its charter, to regulate and license 
 the slaughtering of animals within the 
 corporate limits, the common council 
 passed an ordinance, whereby a particu- 
 lar building was designated for the slaugh- 
 tering of all animals intended for sale or 
 consumption in the city, the owners of 
 which were granted the exclusive right, for 
 a specified period, to have all such ani- 
 mals slaughtered at their establishment, 
 they to be paid a specific sum for the 
 privilege by all persons exercising it, and 
 to have the option of accepting such 
 proposition, but which was not to take 
 effect until they executed a certain bond 
 therein required ; and it was held that 
 this action of the corporate authorities 
 could not be regarded as regulating or 
 licensing the business, but was simply a 
 conditional proposition, which, if accepted, 
 would constitute a contract. It was also 
 
362 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XII. 
 
 § 363. (297) Intoxicating Liquors. — The authority of munici- 
 palities to license, tax, restrain, or prohibit the traffic in or sale 
 
 held that this contract tended to create a 
 monopoly, and was therefore void. And 
 the opinion was expressed that, under the 
 charter, authority was conferred simply 
 to pass ordinances to locate and construct, 
 and to regulate, license, restrain, abate, 
 or prohibit slaughtering establishments 
 within the prescribed limits ; and to that 
 end the corporate authorities may so 
 regulate the business as to prohibit its 
 exercise, except in a particular place ; 
 but the spot so designated must be open 
 to the enjoyment of all persons alike, 
 upon the same terms and conditions. A 
 monopoly cannot be implied, but must 
 rest upon express grant. Canal Co. v. 
 Kailroad Co., 11 Leigh (Va.), 42, per 
 Tucker, President. A city charter grant- 
 ing the city the right to "exercise and 
 enjoy all the rights, immunities, powers, 
 and privileges appertaining to a municipal 
 corporation," and to " license, tax, and 
 regulate hackney carriages, omnibuses," 
 etc., does not authorize the city authori- 
 ties to grant to one person the sole and 
 exclusive right to iim omnibuses in the city. 
 Logan !). Pyne, 43 Iowa, 524, 1876 ; s. c. 
 22 Am. Rep. 261 ; Gale v. Kalamazoo, 23 
 Mich. 344, 1871 ; 8. c. 9 Am. Kep. 80, in 
 which the .opinion of Cooleij, J., will be 
 found to be highly instructive. Monopo- 
 lies are odious to the law. A monopoly 
 is when the sale of any merchandise or 
 commodity is restrained to one or to a 
 certain number (11 Co. 86), and has three 
 inseparable consequents, — the increase 
 of the price, the badness of the wares, the 
 impoverishment of others. lb. By stat- 
 ute, 21 Jac. I. ch. iii., all monopolies and all 
 commissions, grants, licenses, etc., to any 
 person, etc., for any sale, buying, selling, 
 making, working, using of a thing, etc., 
 are void. And any one grieved, etc., may 
 have an action on tlie statute, and recover 
 treble damages and double costs. So 
 monopolies are contrary to Magna Charta. 
 2 Inst. 68. By statute, 38 Edw. III. a mer- 
 chant may freely deal in all manner of 
 merchandise. The statute of 21 Jac. II. 
 does not extend to letters patent for in- 
 ventions, etc. The first part of this sec- 
 tion is simply a declaration of the common 
 law. Whenever a by-law seeks to alter 
 
 a well-settled and fundamental principle 
 of the common law, or to establish a rule 
 interfering with tlie rights of individuals 
 or the public, the power to do so must 
 come from plain and direct legislative en- 
 actment. Legal restraints in the form of 
 •regulations, may, however, be imposed 
 upon the few for the benefit of the many. 
 I? is sometimes difficult to determine 
 when a by-law is in restraint of trade, 
 and when it is a mere regulation of trade. 
 The former is illegal, the latter legal. 
 The following have been held to be bad, 
 as in restraint of trade : That no member 
 should sell the barrel of any hand-gun, 
 etc., ready proved, to any person of the 
 trade not a member in London, or within 
 four miles thereof. The Master, etc., of 
 Gunmakers, etc., c. Fell, Willes. 384. No 
 member should strike his stamp, or mark 
 on tlie barrel of any person not a member 
 of the company, etc. lb. That every 
 person not being already free of the city, 
 occupying, using, or exercising, or who 
 shall occupy, use, or exercise the art, 
 trade, or mystery of a butcher within the 
 said city or its liberties, shall take upon 
 himself the freedom of the Company of 
 Butchers, and that if any person or per- 
 sons (except such as are already free, 
 etc.) shall use the trade of a butcher, not 
 being free of this company, he shall pay, 
 etc. Harrison v. Godman, 1 Burr. 12. 
 So as " to persons using the occupation of 
 music and dancing." Robinson v. Gros- 
 court, 5 Mod. 104. That no person should 
 erect any booth, for the purpose of any 
 show or public entertainment, in any 
 public place within the borough, without 
 license from the mayor, which license 
 should not be given at or for any other 
 time than during the annual fairs, if three 
 inhabitant householders, residing within 
 100 yards of the place intended to be 
 used, should have previously memorialized 
 the mayor to withhold such license, etc. 
 Elwood V. Bulloch, 6 Q. B. 383. So where 
 it was provided that those only to whom 
 licenses were granted should have slaugh- 
 ter houses within the city. Nash & Mc- 
 Cracken, in re, 33 Upper Can. Q. B. 181. 
 Or that none but three persons appointed 
 by the city should sweep for hire or gain 
 
§ 333.] 
 
 MUNICIPAL OKDINANCES OR BY-LAWS. 
 
 363 
 
 of intoxicating liquors, is so differently conferred, and so largely 
 influenced by the general legislation and policy of the state on 
 the subject that the decisions relating to it are mostly of local 
 application. Sometimes the state laws are manifestly intended 
 to repeal or modify prior special charter provisions, which gave 
 the control of the matter to the local authorities ; ^ and at other 
 times incorporated places have, by the course of legislation, been 
 excepted from the general operation of the state laws, and have 
 been allowed to license, regulate, or prohibit the traffic, as they 
 deemed best.^ 
 
 any chimney or flue in the city. The 
 Queen v. Johnson, 38 Upper Can. Q. B. 
 549. Prohibiting the use of canals on 
 Sundays. The Calder arid Hebble Navi- 
 gation Co. V. Pilling, 14 M. & W. 76 ; 
 prohibiting licensed tavern-keepers from 
 having a light in their bars. Begina o. 
 Belmont, 35 Upper Can. Q. B. 298. Power 
 of the legislature to grant or authorize 
 the granting of monopolies, or exclusive 
 privileges as affected by the 13th and 
 14th amendment to the Federal Constitu- 
 tion, see Slaughter-house Cases, 16 Wall. 
 86, 1872 ; post, ch. xviii. as to gas compa- 
 nies ; post, sec. 385, note. 
 
 1 State V. Harris, 10 Iowa, 441 ; Bur- 
 lington V. Kellar, 18 Iowa, 69 ; Hammond 
 ./.Haines, 25 Md. 541. 
 
 2 Perdue v. Ellis, 18 Ga. 586 ; Trustees 
 V. Keeling, 4 Denio (N. Y.), 341 ; Phillips 
 V. Tecumseh, 5 Neb. 305, 1877. Construc- 
 tion of charters in connection with state 
 laws on the subject. Town Council v. 
 Harbers, 6 Rich. (South Car.) Law, 96; 
 lb. 404 ; State v. Estabrook, 6 Ala. 653 ; 
 West V. Greenville, 39 Ala. 69 ; Adams v. 
 Mayor, 29 Ga. 56; Chaslain v. Town 
 Council, 29 Ga. 333 ; Cuthbert v. Conley, 
 32 Ga. 211; State v. Garlock, 14 Iowa, 
 444; Harris o. Intendant, etc., 28 Ala. 
 577; Robinson v. Mayor, etc., 1 Humph. 
 (Tenn.) 156; Pekin i. Smelzel, 21 111. 
 464; State v. Plunkett, 3 Harr. (N. J.) 5; 
 both held consistent and able to stand to- 
 gether. Byers v. Olney, 16 111. 35 ; Page 
 V. State, 11 Ala. 849 ; Benefield v. Hines, 
 13 La. An. 420; Louisville ». McKean, 18 
 B. Mon. (Ky.) 9; Dietz v. City, 1 Col. 
 323, 1871; Burckholter v. McConnells- 
 ville, 20 Ohio St. 308; Baldwin Co. v. 
 Liquor Dealers, 42 Ga. 325; State v. 
 Sherman, 20 Mo. 265. 
 
 A general power in a city or town 
 charter to j^rohibit the sale of intoxicat- 
 ing liquors ia sufl9cient to authorize the 
 adoption of an ordinance for any partial 
 prohibition deemed advisable. Under a 
 section giving the exclusive power to 
 license, prohibit, or regulate in any manner 
 they may see fit, the sale, etc., of liquors 
 within the said city, an ordinance prohib- 
 iting the sale, etc., in less quantities than 
 five gallons, is valid and may be enforced. 
 Where the power is conferred on the mu- 
 nicipalities by the legislature it is wholly 
 discretionary with the municipality to 
 license and regulate, or partially or en- 
 tirely prohibit the trafBo. Gunnarssohn ». 
 Sterling, 92 111. 569; Goddard v. Jackson- 
 ville, 15 111. 588; Kettering v. Jackson- 
 ville, 50 111. 39; Pekin v. Smelzel, 21 lU, 
 464; Harbaughi). Monmouth, 74 III. 371 
 Schwuchow V. Chicago, 68 111. 444; Bald 
 win V. Murphy, 82 111. 485; Byers v 
 Olney, 16 111. 35; Martin ... People, 88 
 III. 39U. Liquor license fee held not a 
 tax, in the constitutional sense of the 
 term, compelling uniformity of taxation. 
 East St. Louis v. Wehrung, 46 111. 392. 
 Special provision of charter construed not 
 to give power to prohibit absolutely the sale 
 of liquor in the town. Hill v. Decatur, 
 22 6a. 203. A state law providing for 
 the assessment of a specified tax on liquor 
 dealers, the money raised to be devoted 
 to towns and cities in which the business 
 was carried on, was held to be a tax and 
 not a licensing of the sale, and not to be 
 unconstitutional because unjust or un- 
 equal, nor because the municipality had 
 no voice in the levy. Youngblood v. 
 Sexton, 32 Mich. 406, 1875; 8. c. 20 Am. 
 Bep. 654. 
 
364 
 
 MUNICIPAL COEPOKATIONS. 
 
 [CH. XIL 
 
 § 364. (298) Where there are general laws of the state re- 
 specting the sale of intoxicating liquors, a public corporation, by 
 virtue of a general power " to make all by-laws that may be neces- 
 sary to preserve the peace, good order, and internal police " there- 
 in, is not authorized to pass an ordinance requiring a corporate 
 license, and punishing persons who sell such liquors without being 
 thus licensed.^ 
 
 § 365. (299) In the absence, however, of controlling general 
 legislation, power to a city to pass " in general, every other by- 
 law or regulation that shall appear to the city council requisite and 
 necessary for the security, welfare, and convenience of the city, 
 or for preserving the peace, order, and good, government within 
 the same," was held to authorize an ordinance (and the same is 
 constitutional) to prevent shopkeepers, unless licensed by the city, 
 from keeping spirituous liquors in their shops or in any adjacent 
 room .2 
 
 1 Commonwealth o. Turner, 1 Cush. 
 (Mass.) 493, 1848. The limitations on 
 such a general power to make by-laws, 
 discussed by Shaw, C. J. As to text, see 
 Commonwealth v. Dow, 10 Met. (Mass.) 
 882, 1845. General welfare clause does 
 not authorize a municipal corporation to 
 pass an ordinance prohibiting the retail 
 of intoxicating liquors, when this is re- 
 pugnant to the state laws on the subject. 
 Burnett, in re, 30 Ala. 461, 1857. But 
 under a different state of general legisla- 
 tion, see State v. Clark, 8 Foster (28 N. 
 H.), 176, 1854; Heiscmbrittle v. City of 
 Charleston, 2 McMullen (South Car.), 
 233 ; State v. Ferguson, 33 N. H. 424, 
 1851 ; distinguished from and commenting 
 on the above cases. State v. Freeman, 38 
 N. H. 426, ap'proving and following State 
 V. Clark, 8 Fost. (28 N. H.) 176 ; Megowan 
 V. Commonwealth, 2 Met. (Ky.) 3, 1859. 
 Where there is no legislation authoriz- 
 ing township officers incorporated under 
 general laws of the state to regulate and 
 license the sale of intoxicating liquors, or 
 to exact a fee for such license, there is no 
 power in the board of trustees either to 
 pass an ordinance requiring, or to grant, 
 a license for this purpose. A provision 
 limiting the amount that may be charged 
 for liquor licenses by cities and towns 
 
 does not give the power. They have 
 just such powers as the law has conferred 
 upon the board, and none other. Walter 
 V. Columbia City, 61 Ind. 24 ; Cowley v. 
 Rushville, 60 Ind. 327 ; McFee v. Green- 
 field, 62 Ind. 21. 
 
 Ordinance ultra vires. License to sell 
 liquors at retail. Subsequent ordinance re- 
 stricting sale invalid. A. obtained a license 
 to sell liquors; subsequently an ordi- 
 nance was passed prohibiting the sale 
 of liquor during the continuance of di- 
 vine service, at any time thereafter to be 
 held by any denomination of Christian 
 people within the corporate limits, pro- 
 viding that the prohibition should cover 
 the entire appointed time for divine wor- 
 ship from its commencement to its final 
 close, and on all protracted occasions 
 covering intermissions by day and night : 
 Held invalid, as the element of time was 
 not fixed by the corporate will, but left to 
 a casual and incidental control, dependent 
 upon the will and pleasure of the various 
 denominations of Christian people and ig- 
 noring all others. Gilham v. Wells, 21 
 Alb. Law Jour. 319; Ga. 1880. 
 
 2 Heiscmbrittle v. City Council, 2 Mc- 
 Mullen (So. Car.) Law, 233, 1842. Fol- 
 lowed and affirmed. City Council v. Ah- 
 rens,4 Strob. (So. Car.) Law, 241, 1850. 
 
§ 366.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 365 
 
 A corporation whose charter contained the general welfare 
 clause, and also specific power " to license persons to retail spir- 
 ituous liquors, and to prohibit persons from selling without such 
 license," and was, it seems, silent as to the amount which might 
 be demanded for a license, was adjudged competent to enact an 
 ordinance demanding $500 as a fee for a retail license.' 
 
 Power by its charter to a city " to tax, or entirely suppress, all 
 petty groceries," was held, in connection with other provisions of 
 the charter expressly authorizing certain other subjects to be 
 licensed, not to confer upon the corporation the power to grant 
 licenses for retailing vinous liquors, and to demand a sum of 
 money therefor.^ 
 
 Ordinances Relating to Public Offences. 
 
 § 366. (300) Distinction between Laws and By-Laws — Con- 
 current Prohibitions, etc. — Statute law and by-laws are intended 
 
 See City Council v. Baptist Church(giving 
 preamble to charter in question), Jb. 806, 
 808. A town had exclusive authority 
 over the sale of liquors therein, and it 
 was held that power to " regulate, re- 
 strain, and suppress shops and places for 
 the sale of ardent spirits by retail " 
 amounted to an authority to forbid the 
 sale ; for if tliere is a sale it must be 
 made in some shop or place. Clinton- 
 ville ./. Keeting, 4 Denio (N. Y.), 341, 
 1847; Thomas v. Mt. Vernon, 9 Ohio, 
 290. Construction of charter provisions, 
 holding that the sale of intoxicating li- 
 quors might be declared a nuisance by tlie 
 municipal authorities. Block v. Jack- 
 sonville. 36 111. 301 ; Goddard v. Same, 15 
 Jb. 588 ; Byers v. Trustees, etc., 16 lb. 
 35 ; Fekin v. Smelzel, 21 lb. 464. 
 
 1 Perdue u. Ellis, 19 Ga. 586, 1855. 
 But see Burnett, in re, 80 Ala. 461, and 
 compare that with Intendant v. Chandler, 
 6 Ala. 899. See also St. Louis v. Smith, 
 2 Mo. 113 ; where there was charter pow- 
 er to "restrain and prohibit tippling- 
 houses," and the corporation was held 
 entitled to impose a license fee. Power 
 to " tax " and " restrain " sale of liquor 
 includes power to grant licenses. Mt. 
 Carmel v. Wabash County, 50 III. 69, 
 1869. Where authority was conferred 
 upon a corporation to suppress and pro- 
 hibit the sale of intoxicating drinks, as 
 well as to license the same, an ordinance 
 
 which imposes a penalty for selling such 
 drinks without license, which penalty ex- 
 ceeds that fixed by the general law of the 
 territory, is reasonable. Deitz v. City of 
 Central, 1 Col. 828, 1872. 
 
 ^ Leonard v. Canton, 85 Miss. (6 George) 
 189, 1858. Power " to prohibit tippling- 
 houses," does not authorize an ordinance 
 prohibiting sales of beer by brewers. 
 Strauss v. Pontiae, 40 111. 301, 1866. Pro- 
 hibition in ordinance to sell liquors with- 
 out license held not to apply to sales by 
 manufacturers, but to retail dealers. St. 
 Paul V. Troyer, 3 Minn. 291. 
 
 Under a law requiring a majority of 
 citizens to petition for a license to the city 
 council a license granted upon a petition 
 signed by a less number is void and af- 
 fords no protection. Eureka v. Davis, 
 21 Kan. 578; and the mayor is not 
 bound to sign any license so ordered. 
 Welsford v. Weidlein, 23 Kan. 601 ; 8. p. 
 State V. Young, 17 Kan. 414 ; Ins. Co. v. 
 State, 9 Kan. 210 ; Eureka v. Davis, 21 
 Kan. 578; Wabaunsee Co. v. Muhlen- 
 backer, 18 Kan. 129; Bouldin v. Balti- 
 more, 15 Md. 13. Cannot compel its issue 
 by mandamus. State v. Commrs., Harper 
 Co 23 Kan. 456. Where there is no law 
 governing the amount, it is a question of 
 expediency, of which the city authorities 
 are the sole judge. Goldsmith v. New 
 Orleans, 81 La. 646. 
 
366 MUXICIPAL COEPOKATIONS. [CH. XII. 
 
 to meet different wants and exigencies and to serve different pur- 
 poses. The former, when general in its nature and operation, is 
 intended to furnish a rule for the government of the people of the 
 state everywhere. The latter, made by the corporation under 
 derivative authority, are local regulations for the government of 
 the inhabitants of the incorporated place ; and of course they 
 must be void, unless specially authorized by the charter or organic 
 act of the corporation, when they are repugnant to, or inconsist- 
 ent with, the general law of the land. No implied power to pass 
 by-laws, and no express general grant of the power, can author- 
 ize a by-law which conflicts either with the national or state con- 
 stitution, or with the statute of the state, or with the general 
 principles of the common law adopted or in force in the state. 
 
 § 367. (301) The laws of the state operate within the limits 
 of municipal corporations and upon their inhabitants the same as 
 elsewhere, unless it is otherwise clearly provided in the charter, 
 or by some statute of the state ; and unless so provided, in case 
 of conflict between laws and hy-laws, the latter must give way. 
 But the state may, and as to local matters frequently does, except 
 municipal corporations from the operation of its laws, and either 
 provides a special law for them or authorizes them to provide 
 special regulations for themselves ; and when this is done there is 
 no conflict. But these local laws and regulations are at all times 
 subject to the paramount authority of the legislature. Questions 
 of difficulty have arisen in consequence of grants of power to 
 municipal corporations to make ordinances respecting matters and 
 acts already regulated by general statute and if criminal in their 
 nature, punishable under the laws of the state. Hence, the same 
 act comes to be forbidden by general statute, and by the ordi- 
 nance of a municipal corporation,, each providing a separate and 
 different punishment. The same transaction may, if complex in 
 its nature, be in one part of it an offence against the general law, 
 and in another against the by-law, but such cases present no difii- 
 culty. But can the same act be twice punished, once under the 
 ordinance and once under the statute ? The cases on this subject 
 cannot be reconciled. Some hold that the same act may be a 
 double offence, one against the state and one against the corpora- 
 tion. Others regard the same act as constituting a single offence, 
 and hold that it can be punished but once, and may be thus pun- 
 ished by wliichever party first acquires jurisdiction. 
 
§ 368.] MUNICIPAL OKDINANCES OR BY-LAWS. 367 
 
 § 368. (802) In view of the somewhat strict construction 
 of grants of corporate powers, elsewhere explained and illus- 
 trated, and of the subordinate nature and purposes of by-laws, 
 the following rules, although seeming to rest on sound principles, 
 are, in view of the decisions, stated with some distrust of their 
 entire correctness : I. A general grant of power, such as mere 
 authority to make by-laws, or authority to make b3--]aws for the 
 good government of the place, and the like, should not be held 
 to confer authority upon the corporation to make an ordinance 
 punishing an act — for example, an assault and battery — which 
 is made punishable as a criminal offence by the laws of the state. 
 The intention of the state that the general laws shall not extend 
 to the inhabitants of municipal corporations, or that these corpo- 
 rations shall have the power, by ordinance, to supersede the state 
 law, will not be inferred from grants of power general in their 
 character ; nor will such authority in the corporation be held to 
 exist as an implied or incidental right. II. Where the act is, in 
 its nature, one which constitutes two offences, one against the 
 state and one against the municipal government, the latter may 
 be constitutionally authorized to punish it, though it be also an 
 offence under the state law ; but the legislative intention that 
 this may be done should be manifest and unmistakable, or the 
 power in the corporation should be held not to exist. III. Where 
 the act or matter covered by the charter or ordinance, and by the 
 state law, is not essentially criminal in its nature, and is one 
 which is generally confided to the supervision and control of the 
 local government of cities and towns, but is also of a nature to 
 require general legislation, the intention that the municipal gov- 
 ernment should have power to make new, further, and more 
 definite regulations, and enforce them by appropriate penalties, 
 will be inferred from language which would not be sufficient 
 were the matter one not specially relating to corporate duties, 
 and fully provided for by the general laws. Such are the general 
 principles to be extracted from the authorities, but the exact state 
 of the law will more satisfactorily appear, and, indeed, can only 
 be seen by reference to the adjudicated cases ; accordingly, the 
 leading ones npon the subject are stated in the note,' and in some 
 
 1 Smith, in re, Hempstead, 201, 1832 ; 86, 1874 ; New Orleans v. Miller, 7 La. 
 
 Mayor, etc. of Savannah v. Hussey, 21 An. 651, 1852 ; Municipality i'. Wilson, 5 
 
 Ga. 80, 1857 ; Brownville v. Cook, 4 Neb. lb. 747 ; State w. Cowan, 29 Mo. 330 (fu- 
 
 101, 1875 ; St. Charles v. Meyer, 68 Mo. rious driving); St. Louis v. Cafferata, 24 
 
368 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XII. 
 
 of its aspects the matter is further considered in the chapter on 
 Municipal Courts. 
 
 ment in court leet, or inferior jurisdictions. 
 See Hale., P. C. vol. I. ch. lii. ; vol. II. cli. 
 xix. ; Norton's Com. London, 370, 453; 
 post, sec. 488. 
 
 In Georgia tlie general welfare clause 
 in a charter was decided not to authorize 
 the passage of an ordinance prescribing a 
 different mode of trial and punishment in 
 addition to that provided for by the gen- 
 eral criminal code of the state, for har- 
 boring and enticing seamen. Savannah 
 V. Hussey, 21 Ga. 80, 1857. The power 
 of municipal corporations to legislate re- 
 specting offences fully covered by the 
 state law is denied, and the general sub- 
 ject is largely and satisfactorily discussed, 
 and it is well remarked that, in such 
 cases, " the law of the state is the law of 
 the corporation ; and they cannot make 
 another law for themselves." The fol- 
 lowing is extracted from the opinion de- 
 livered by a very able judge: — "Under 
 the general grant of power (to pass all 
 such ordinances as may seem necessary 
 for the security, welfare, etc., of the city) 
 the city authorities may cover all [proper] 
 cases not provided for by the paramount 
 authorities of the state. All those or- 
 dinances regulating cemeteries, com- 
 mons, markets, vehicles, fires, exhibitions, 
 lamps, licenses, water- works, watch, po- 
 lice, city taxes, city officers, health, nui- 
 sances, etc., are legitimate and proper. 
 Nay, I might go further, and concede 
 that where a state law defines an offence 
 generally, and prescribes a punishment 
 without reference to the place where it is 
 committed, in town or country, and the 
 act, when committed in the streets and 
 public places of the city, would be attend- 
 ed with circumstances of aggravation, 
 such as an affray, for instance, the corpo- 
 rate authorities, with a view to suppress 
 this special mischief, might probably pro- 
 vide against it by ordinance. But this is 
 going quite far enough." But I deny 
 that " a municipal corporation can legis- 
 late criminatiter upon a case fully covered 
 by the state law, though aware that decis- 
 ions may be found to support " that view. 
 Per Lumpkin, J., in Savannah v. Hussey, 
 21 Ga. 80, 86, 1857. And it is settled in 
 Georgia, that where an act amounts to 
 
 Mo. 94 (Sunday ordinances); Amboy v. 
 Sleeper, 31 111. 499 ; State o. Ledford, 3 
 Mo. 102 ; Independence v. Moore, 32 Mo. 
 392; McLaughlin v. Stevens, 2 Cranch 
 C. C. R. 148; St. Louis v. Bentz, 11 Mo. 
 61 (ordinance against vagrants); United 
 States V. Holly, 3 Cranch C. C. R. 656 ; 
 Jefferson City v. Courtmire, 9 Mo. 683 
 (ordinance against riots); Davis v. State, 
 4 Stew. & Port. (Ala.), 83; State v. 
 Plunkett, 3 Harrison (N. J.), 5, 1840; 
 Rice V. State, 3 Kan. 141, 1865 ; Rogers v. 
 Jones, 1 Wend. (N. Y.),261 ; Mayor, etc. 
 of New York v. Hyatt, 8 E. D. Smith (N. 
 Y.), 1.56 ; Borough of York v. Forscht, 23 
 Pa. St. 391 ; March v. Commonwealth, 12 
 B. Mon.(Ky.) 25 ; Commissioners v. Har- 
 ris, 7 Jones (Law) 281 ; Brooklyn v. Toyn- 
 bee, 31 Barb. (N. Y.) 282; Davenport v. 
 Bird 34 Iowa, 524, 1872"; Zylstra v. 
 Charleston, 1 Bay (South Car.), 382; 
 Petersburg v. Met2ker,21 111. 205, 1859; 
 Howe V. Plainfield, 8 Vroora (38 N. J. L.), 
 145 ; Barter v. Commonwealth, 3 Pa. 253 ; 
 State V. Clark, 1 Dutch. (N. J.) 54; State 
 I). Pollard, 6 Rh. Is. 290 ; People v. Jack- 
 son, 8 Mich. 110 ; post, sec. 411. 
 
 Treating of the constitutional question 
 involved, Mr. Justice Coolei/ remarks that, 
 although the decisions are not uniform, 
 the clear weight of authority is, " that 
 the same act may constitute an offence 
 both against the state and the municipal 
 corporation, and both may punish it witli- 
 out violation of any constitutional prin- 
 ciple." Const. Lim. 199 ; B. p. March v. 
 Commonwealth, 12 B. Mon. (Ky.) 25, 29, 
 per Simpson, C. J. ; Howe v. Plainfield, 
 supra; Brownville v. Cook, 4, Neb. 101, 
 1875. In England a by-law imposing a 
 penalty on a corporator, for refusing to 
 serve in a corporate office, is valid, not- 
 withstanding the party may be indicted 
 for the same refusal, as he may be in all 
 cases of municipal offices necessary or 
 proper to carry on the government of the 
 corporation. Grant on Corp. 82. A dis- 
 tinction was there early made between 
 grave offences classified as pleas of the 
 crown, and triable upon an issue of not 
 guilty between the king and the defend- 
 ant, and lesser or petty offences punish- 
 able by fine or amerciament upon present- 
 
§ 369.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 369 
 
 Ordinances relating to the Public Health, Safety, and Convenience. 
 
 § 369.(308) Health Ordinances — Hospitals and Burials. — Our 
 municipal corporations are usually invested with power to pre- 
 
 an indictable offence it cannot be punished 
 under municipal ordinances, but the of- 
 fender must be bound over to the proper 
 court; if it does not amount to an indict- 
 able offence the offender may be punished 
 under the ordinances of the municipality, 
 and if it is a nuisance, steps may also be 
 taken to have it abated. Vaaon v. Au- 
 gusta, 38 Ga. 642, 1868 ; Reich v. State, 
 63 Ga. 73, 1874. 
 
 But in Alabama it is held that a muni- 
 cipal corporation, with power to enact 
 ordinances " for the good government of tlie 
 place, not contravening the laws of the 
 state," may pass an ordinance imposing a 
 fine for an assault and battery within its 
 limits, and a punishment under the state 
 law for the same act is no bar to a prose- 
 cution under the ordinance. Collier, C. J., 
 delivering the opinion of the court, says : 
 "The object of the power conferred by 
 the charter, and the purpose of the ordi- 
 nance itself, was not to punish an offence 
 against the criminal justice of the coun- 
 try, but to provide a mere police regulation 
 for the enforcement of good order and 
 quiet within the limits of the corporation. 
 . . . The offences against the corporation 
 and the state are distinguishable and 
 wholly disconnected, and the prosecution 
 at the suit of each proceeds upon a differ- 
 ent hypothesis : the one contemplates the 
 observance of the peace and good order 
 of the city ; the other has a more enlarged 
 object in view, — the maintenance of the 
 peace and dignity of the state." Mayor, 
 etc. of Mobile v. Allaire, 14 Ala. 400, 
 1848. If the principle stated in the text 
 be correct, the soundness of this decision 
 under the powers conferred upon the cor- 
 poration may admit of doubt, but the 
 same view had been previously taken in 
 the same court in The Mayor, etc, of 
 Mobile V. House (liquor law), 8 Ala. 515, 
 1845; and see Moore v. State, 16 Ala. 
 411; Greensboro v. MuUins, 13 Ala. 341. 
 An offence committed against the proper 
 police regulations of a municipal corpora- 
 tion, which at the same time offends 
 against the penal laws, can legally be 
 
 VOL. I. 24 
 
 prosecuted for either, and a prosecution 
 under one will be no bar to a legal prose- 
 cution under the other. Hamilton v. State, 
 3 Tex. App. 643, 1878. Extent of police 
 power. Shafer i'. Mumma, 17 Md. 331 ; 
 ante, sees. 141, 144, 357, 358. In Ohio an 
 ordinance prohibiting singing, speech- 
 making, etc., in the streets was held valid. 
 Trimble „. Bucyrus, Ohio St. '21 Alb. 
 Law Jour. 76. 
 
 Authority to pass ordinances " to pre- 
 serve tlie health and comfort of the town," 
 does not empower the corporation to pass 
 an ordinance to prevent or punish breaches 
 of the peace. Ealelgli v. Dougherty, 3 
 Humph. (Tenn.) 11, 1842; see chapter on 
 Municipal Courts, posi. 
 
 Where gambling and the keeping of 
 gambling-houses are made public offences 
 by the state laws, offenders may be 
 prosecuted in the state courts for the 
 violation of these laws, notwithstanding 
 the organic acts of cities may give 
 to the city council power "to restrain, 
 prohibit, and suppress games and 
 gambling-houses." In thus liolding, the 
 court adds, " It is not necessary, in 
 this case, to decide whether both the 
 state and the city can punish for the 
 same act ; but we have no doubt tliat 
 the one which shall first obtain jurisdic- 
 tion of the person of the accused may 
 punish to the extent of its power." Rice 
 I'. State, 3 Kan. 141, 1865. The same 
 point has been decided the same way in a 
 late case by the Supreme Court of Min- 
 nesota. State V. Crummey, 17 Minn. 72, 
 1871. Gambling being punishable under 
 the general law, a city council " invested 
 with authority to make ordinances to se- 
 cure the inhabitants against fire, against 
 violations of the law and the public peace, 
 to suppress riots, gambling, drunkenness, 
 indecent and disorderly conduct, to pun- 
 ish lewd behavior in public places, . . . 
 and, generally, to provide for the safety, 
 prosperity, and good order of the city," 
 possesses, by virtue thereof, no power to 
 make the keeping of any gambling device 
 a misdemeanor, and to punish the same. 
 
370 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. xn. 
 
 serve the health and safety of the inhabitants. This is, indeed, 
 one of the chief purposes of local government, and reasonable 
 
 Mount Pleasant v. Breeze, 11 Iowa, 399, 
 1860. This case was, in a recent opinion 
 (1880) of the Supreme Court of Iowa, 
 doubted, but adhered to. 
 
 Police officers in Indiana held to liave 
 no power to seize and destroy gambling 
 apparatus without an ordinance being 
 passed, but no opinion was expressed as 
 to the validity of such an ordinance. 
 Ridgeway v. West, 60 Ind. 371, 1878. 
 Power to suppress gambling-houses. 
 Society v. Musgrove, 44 Miss. 820 ; s. c. 
 7 Am. Rep. 723 ; Moore v. State, 48 Miss. 
 147; s. c. 12 Am. Rep. 367. 
 
 In Missouri it is held that where the 
 same act (as, for example, furious driving 
 in highways and public places) is a viola- 
 tion of a valid municipal ordinance and 
 of the general criminal statutes of the 
 state, the offender can be punished but 
 once, and hence, to an indictment in the 
 state court, he may plead a former con- 
 viction under the ordinance of_^ the muni- 
 cipal corporation. State v. Cowan, 29 Mo. 
 330, 1860. But qucere. The opinion in 
 this case assumes, without discussion, 
 that the offence is single. 76. 
 
 The later, and it would seem the cor- 
 rect doctrine on this subject, is thus ex- 
 pressed by Wai/ner, J., in The State v. 
 Gordon, 60 Mo.'383, 385, 1875: — 
 
 " The legislature has tlie undoubted 
 right, in reference to statutory misde- 
 meanors, to say in what particular juris- 
 diction they shall be tried, and to make 
 that jurisdiction exclusive of all others. 
 When the power to hear and determine 
 these minor offences is given to a municipal 
 corporation, but no words of exclusion or 
 restriction are used, the remedies between 
 the state and corporation will be construed 
 to be concurrent ; but where the manifest 
 intention is that the prosecution shall be 
 limited exclusively to one jurisdiction, 
 that intention must prevail." 
 
 In State t. Wister, 62 Mo. 592, 1876, 
 the defendant, indicted for keeping a 
 bawdy house, pleaded autrffiis conrict 
 upon a complaint before the city recorder. 
 As the charter did not confer upon the 
 city exclusive cognizance of this class of 
 offences the plea was held bad, although 
 the recorder was invested with " exclusive 
 
 jurisdiction of all cases arising under 
 any ordinance of the city." s. p. State 
 i;. Harper, 58 Mo. 531. In State v. Gor- 
 don, 60 Mo. 383, the charter in terms 
 conferred exclusive jurisdiction on the 
 municipal authorities in respect of a cer- 
 tain class of misdemeanors, in which was 
 included the one in question in this case. 
 ♦ In Nebraska the doctrine is maintained 
 that " the same act may constitute an of- 
 fence against both the state and the 
 municipal government, and both may 
 punish it without infringing any constitu- 
 tional right." Brownville v. Cook, 4 Neb. 
 101, 105, 1875, per Lake, C. J. In this 
 case an ordinance was sustained punish- 
 ing " wilful, malicious, and mischievous 
 meddling with or trespasses upon prop- 
 erty." The ordinance was more specific 
 than tlie criminal code of the state on this 
 subject, but this was not made the basis 
 of tlie decision. 
 
 In Minnesota it is held that the legisla- 
 ture may authorize a city to impose new 
 and additional penalties for acts (in this 
 case tlie selling of liquors on Sunday) al- 
 ready made penal by the general laws of 
 the state. State v. Ludwig, 21 Minn. 
 202. 
 
 " The principle established by the 
 .weight of authority, and we think in ac- 
 cordance with sound reason, is that the 
 legislature of the state may authorize a 
 municipal government to impose new and 
 additional remedies for acts already pen- 
 al by the laws of the state. Per McMil- 
 lan, C. J., citing State v. Charles, 16 
 Minn. 474; Brooklyn v. Toynbee, 81 
 Barb. 282 ; 1 Dillon on Mun. Corp. sec. 
 368 ; Cooley Const. Lim. p. 199 and notes 
 1 and 2." 
 
 In Slaughter v. People, 2 Doug. 
 (Mich.) 334, the principle was decided 
 that it was not competent to punish, un- 
 der a city ordinance, an act which was 
 indictable. Illustrating the difference 
 between prosecutions under special penal 
 provisions of a city charter, of acts with 
 specified fines and penalties affixed l)y 
 the charter, but which acts are breaches 
 of the law of the state wherever com- 
 mitted, and ordinary prosecutions under 
 municipal ordinances, see Wayne Coun- 
 
369.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 371 
 
 by-laws in relation thereto have always been sustained in Eng- 
 land as within the incidental authority of corporations to ordain. 
 It will be useful to illustrate the subject by reference to some 
 of the adjudged cases.* An ordinance of a city prohibiting, under 
 a penalty, any person, not duly licensed therefor by the city 
 authorities, from "removing or carrying through any of the 
 streets of the city any house-dirt, refuse, offal, or filth," is not 
 improperly in restraint of trade, and is reasonable and valid. 
 Such a by-law is not in the nature of a monopoly, but is founded 
 upon a wise regard for the public health. It was contended that 
 the city could regulate the number and kind of horses and carts 
 to be employed by strangers or unlicensed persons, as well as 
 they could those of licensed persons, but practically it was con- 
 sidered that the main object of the city could be better accom- 
 plished by employing men over whom they have entire control, 
 night and day, who are at hand, and able from habit to do the 
 work in the best way and at the proper time.^ 
 
 ty V. Detroit, 17 Mich. 390, 1868 ; People 
 r. Detroit, 18 Mich. 445, 1869 ; People ». 
 Jackson, 8 Mich. 110; post, ch. xiii. 
 
 In Indiana it was first held tliat where 
 the act complained of is indictable as a 
 criminal offence against the laws of the 
 state, a person could not be punished for 
 such act under or by virtue of the ordi- 
 nances of a city. City Council of Indi- 
 anapolis V. Blythe, 2 Ind. (Carter) 75, 
 1850. In this case the city unsuccess- 
 fully sought to recover a penalty pre- 
 scribed by ordinance for an assault and 
 battery committed by the defendant with- 
 in the city. Same principle, City of 
 Madison v. Hatcher, 8 Blackf. (Ind.) 341, 
 1846. But these cases were overruled 
 by Ambrose v. State, 6 Ind. 851, in which 
 it was held that a single act might con- 
 stitute two offences, one against the state 
 and one against the municipal govern- 
 ment, and " that each might punish in its 
 own mode, by its own officers, the same 
 act as an offence against each." Perkins, 
 J., in W^aldo v. Wallace, 12 Ind. 582, 
 1869, where prior cases in that state are 
 referred to. See, also, Lawrenceburg v. 
 West, 16 Ind. 837 ; Fox v. State, 5 How. 
 410 ; Moore v. People, 14 How. 13 ; post, 
 see. 432. 
 
 In Louisiana, municipal corporations are 
 held to have no power to impose a penal- 
 
 ty on that which is made punishable as a 
 criminal ofTence by the laws of the state. 
 But it is admitted that there is a class of 
 offences against public order not made 
 punishable by the state law, which it is 
 within the power of such corporation to 
 suppress. New Orleans v. Miller, 7 La. 
 An. 651, 1852; Municipality i/. Wilson, 
 5 /ft. 747. This case seems to concede 
 that the city corporation cannot punish 
 for an act identical with that punished by 
 the state law. See, also, Commrs. v. Har- 
 ris, 7 Jones (Law), 281 ; People v. Jack- 
 son, 8 Mich. 110. The charter of a city 
 authorized the common council to pass 
 ordinances upon certain subjects pertain- 
 ing to the poHce, good order, and welfare 
 of the city, and provided that a violation 
 of certain of such ordinances should be 
 a misdemeanor and might be prosecuted 
 before the police court of the city like 
 other offences, which court might inflict 
 the penalty named in such ordinance; pro- 
 vided that no penalty should exceed the 
 sum of fifty dollars for a single offence. 
 It was held that the charter did not at- 
 tempt to confer upon the common council 
 the power to define and determine crime, 
 and was not therefore unconstitutional. 
 State V. Tryon, 39 Conn. 183, 1872. 
 
 1 Ante, ch. vi. sees. 141, 142, 144. 
 
 2 Vandine, in re, 6 Pick. (Mass.) 187, 
 
372 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XII. 
 
 § 370. (304) Authority by charter to pass ordiDances respect- 
 ing the harbors and wharves, and •' every other by-law necessary 
 for the security, welfare, and convenience of the city," gives to 
 the city council power to pass a health ordinance requiring boats 
 coming from infected places to anchor before landing and to sub- 
 mit to an examination, provided such ordinance be not repugnant 
 to the general law of the state. And it was further held that a 
 general law of the state, prohibiting " any person coming into the 
 state from an infected place, and tn violation of quarantine regu- 
 lations," was not repugnant to and did not render the ordinance 
 invalid.^ 
 
 § 371. (305) Hospitals. — Authority to the corporation of 
 New Orleans " to pass such by-laws as they shall deem necessary 
 to maintain the cleanliness and salubrity of the city," was consid- 
 ered, in view of its extensive nature, certain provisions of the 
 civil code, and the liability of the city to epidemics, as confer- 
 ring power upon the city council to prohibit the erection and 
 
 1828; commented on in Commonwealth 
 p.Stodder, 2 Cush. (Mass.) 562, 575, 576, 
 1848. In Zylstra v. Corporation of 
 Charleston, 1 Bay (So. Car.), 382, 1794, 
 Mr. Justice Waties (one of the most ac- 
 complished of early American judges), 
 speaking of an ordinance prohibiting tlie 
 making of soap or candles contrary to 
 the mode prescribed and witliin the limits 
 of the city, says, " I am willing to admit 
 that the by-law itself is a valid one. If 
 it restrained an inoffensive trade it would 
 not be so ; but it is made to restrain one 
 that is both offensive and dangerous. It 
 is, therefore, calculated to guard the com- 
 fort and safety of the citizens ; and the 
 benefit of a by-law is, generally, the touch- 
 stone of its validity." The courts will not 
 interfere with the legitimate exercise 
 by municipal bodies of their police powers 
 by which the peace, health, comfort, and 
 general welfare are secured or promoted. 
 Weil a. Ricord, 9 C. E. Green (24 N. J. 
 Eq.), 169. 
 
 Power to a city council to compel the 
 owners and occupants of slaughter-houses 
 to cleanse and abate them whenever ne- 
 cessary for the health of the inhabitants, 
 was considered not to authorize an ordi- 
 nance entirely prohibiting the slaughter- 
 
 ing of animals within certain limits of the 
 city. Wreford b. People, 14 Mich. 41, 
 1865 ; see Metropolitan Board of Health, 
 37 N. Y. 661 ; Shrader, in re, aS Cal. 279, 
 1867. In Cronins v. People, decided by 
 the Court of Appeals of New York, Oct. 
 12, 1880 (reported in full in 22 Alb. Law J. 
 430), it appeared that by the charter of the 
 city of Albany, the common council was 
 authorized by ordinance " ta regulate the 
 erection, use, and continuance of slaughter- 
 houses." It was held that the power to 
 " regulate," as tlius used, gave the council 
 the right to determine and fix the limits 
 and localities within which new slaugh- 
 ter-houses may be erected, and from which 
 they may be excluded, and also to prohibit 
 their continuance whenever and wherever 
 they endanger the health and comfort of 
 the community, of which the common 
 council was to judge for itself, and its judg- 
 ment was implied from the ordinance, and 
 not be recited in it. Powers with respect 
 to prii-ies. Gregory v. Railroad Co., 40 N. 
 y. 273. Powers under legislative au- 
 thority with respect to swill milk. John- 
 son V. Simonton, 43 Cal. 242, 1872. 
 
 1 Dubois 0. Augusta, Dudley (Ga.), 
 30, 1831 ; ante, sec. 141. 
 
§ 372.] 
 
 MUNICIPAL OEDINANCES OE BY-LAWS. 
 
 373 
 
 maiutenance of private hospitals : the court admitting that the 
 same question had been decided otherwise by tribunals governed 
 by the common-law jurisprudence.^ 
 
 § 372. (306) Cemeteries and Burials. — The public health, 
 comfort, and convenience are concerned in the proper regulation 
 of burials ; and the evils resulting from its neglect are especially 
 to be apprehended in the crowded populations of cities. Power 
 to regulate this matter may properly be conferred upon munici- 
 pal corporations. And such power will be held to be given by 
 authority to make police regulations or to pass by-laws respecting 
 
 1 Milne v. Davidson, 5 Martin (La.), 
 410, 1827. 
 
 As to dty hospitals, see Vionet v. 
 Municipality, 4 La. An. 42; Bozant v. 
 Campbell, 9 Rob. (La.) 411; City Coun- 
 cil V. Boyd, 1 Const. Rep. A. D. 1817 
 (South Car.), 352; Tucker v. Virginia 
 City, 4 Nev. 20.. Municipal corporation 
 may found hospitals for the poor under 
 39 EUz. ch. V. ; Newcastle, iri re, 12 Clark 
 & Fin. 402. 
 
 Quarantine ordinances of a municipal 
 corporation, passed by virtue of a grant 
 of power from the state, whereby passen- 
 ger vessels are required to remain in 
 quarantine for a specified period, are not 
 repugnant to the commerce clause of the 
 federal constitution. St. Louis v. McCoy, 
 18 Mo. 238, 1853 ; s. p. St. Louis v. Bof- 
 finger, 19 lb. 13 ; Metcalf v. St. Louis, 11 
 lb. 103. In modern usage, quarantine is 
 not confined to vessels having on board 
 the plague, but extends to vessels hav- 
 ing on board other contagious diseases. 
 Per Tertrtey, C. J., Mitchell v. Rockland, 
 41 Me. 363, 1856; s. c. again, 45 Me. 
 496, 1858 ; ante, sec. 144. 
 
 Boards of health. — An ordinance creat- 
 ing and giving to the board of health " gen- 
 eral supervision over the health of the 
 city," and " all necessary power to carry 
 the ordinance into effect," was considered 
 to include the power to rent a building 
 for a temporary hospital, to protect the 
 city from an apprehended visitation of 
 the cholera, and to make the corporation 
 liable for the rent, although it did not 
 become necessary to use the house. 
 AuU V. Lexington, 18 Mo. 401, 1853. 
 Povoer of board of heaUi. Trend v. Den- 
 
 nett, 4 C. B. (N. S.) 576 ; Barton v. New 
 Orleans, 16 La. An. 317 ; Hutton v. Cam- 
 den, 39 N. J. L. 122, 1876 ; Ferguson v. 
 Selma, 43 Ala. 398, 1869; Tugman v. 
 Chicago, 78 111. 405, 1875; Belcher w. Far- 
 rar, 8 Allen (Mass.), 325; Hazen v. 
 Strong, 2 Vt. 427 ; Commissioners u. 
 Powe, 6 Jones (Law), 134 ; Wilkinson 
 V. Albany, 8 Fost. (28 N. H.) 9. The 
 powers of a board of health held to be 
 advisory and, executive, not legislative, 
 and a resolution of the board that a speci- 
 fied tannery was a nuisance was unau- 
 thorized and void. State v. Trenton, 7 
 Vroom (36 N. J. L.), 283. Such a board 
 held not to have the power to absolutely 
 prohibit carrying on a, lawful business 
 not necessarily a nuisance. Weil v. Ric- 
 ord, 9 C. E. Green (24 N. J. Eq,), 169. 
 Regularly the orders of a board of health, 
 directing the abatement of a nuisance, 
 should be in vtriting. Such orders may 
 be proved by the minutes of the board, 
 by the written orders themselves, or by 
 being recited in the proceedings of the 
 Corporation of which the board of health 
 are members. How far parol evidence 
 may be received of such orders, when 
 it appears that no record or written evi- 
 dence ever existed, is not free from 
 doubt. Meeker v. Van Rensselaer, 15 
 Wend. (N. Y.) 397, 1836, where parol 
 evidence of this kind was held inadmissi- 
 ble by the Supreme Court. But see, in 
 Court of Errors, Van Wormer v. Mayor, 
 18 Wend. (N. Y.) 169, affirming s. c. 15 
 Wend. 263. See also. People v. Adams, 9 
 Wend. (N. Y.) 333; 6 lb. 651; ante, ch. 
 xi. ; Health Department v. Enoll, 70 N. 
 Y. 530, 1877. 
 
374 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XII. 
 
 the health, good government, and welfare of the place.^ Power 
 to city corporation, after enumerating various objects, " in gen- 
 eral to pass every other by-law that to it shall seem requisite and 
 necessary for the security, welfare, and convenience of the city," 
 etc., was, by the Court of Appeals of South Carolina, considered 
 to give authority to regulate the burial of the dead, and particu- 
 larly to prevent the establishment of new burial grounds within 
 the limits of the city, and, in the opinion of the organ of the 
 court, also to regulate the time df burial, the manner of inter- 
 ment so as to prevent noxious effluvia, and to prohibit interments 
 in the private gardens, yards, and by-places of the city.^ But as 
 every by-law must be reasonable, an arbitrary or unnecessary or 
 oppressive restraint upon the right of burying the dead is 
 invalid.* 
 
 § 373. (307) Where the burden to support a public cemetery 
 is required to be borne by all the citizens, an ordinance throwing 
 
 1 Bogert V. Indianapolis, 13 Ind. 134, 
 1859, per Perkins, J. ; Mayor, etc. of New 
 York V. Slack, 3 Wheel. Cr. Cas. 237, 
 K'2i ; Presbyterian Church v. Mayor, etc. 
 of New York, 5 Cow. (N. Y.) 538, 1826; 
 ante, sec. 142, note ; Coates a. Same, 7 
 Cow. (N. Y.) 582, 1827; Austin u. Mur- 
 ray, 16 Pick. (Mass.) 121, 1834 ; Com- 
 monwealth V. Fahey, 5 Cush. (Mass.) 408, 
 1850 ; New Orleans v. St. Louis Church, 
 11 La. An. 244, 1856 ; distinguished from 
 Presbyterian Church v. Mayor, etc. of 
 New York, supra ; Commonwealth v. 
 Goodrich, 13 Allen (Mass.), 546; ante, 
 sees. 141, 142. Tlie power of disinter- 
 ment may be delegated by the legislature 
 to municipaUties. Kincaid's Appeal, 66 
 Pa. St. 411, 1870. 
 
 2 City Council v. Baptist Church, 1 4 
 Strob. (South Car.) Law, 306, 309, 1850, 
 jier Frost, J. ; a. p. Bogert v. Indianapolis, 
 18 Ind. 134, per Perkins, J. ; New Orleans 
 D. St. Louis Church, 11 La. An. 244; dis- 
 tinguished from 6 Cowen, 538, supra; 
 Musgrove v. Catholic Church, 10 La. An. 
 431. 
 
 ' Austin V. Murray, 16 Pick. (Mass.) 
 121, 1834 ; Coates v. Mayor, etc. of New 
 York, 7 Cow. (N. Y.) 585; Common- 
 wealth V. Fahey, 5 Cush. (Mass.) 408, 
 1850. 
 
 The law of burials, in some of its rela- 
 
 tions to property and municipal rights, 
 was ably considered by the Hon. Samuel 
 B. Ruggles, referee, in the matter of the 
 opening of Beekman Street, in New York 
 City, whose report, establishing the fol- 
 lowing principles, was confirmed by the 
 Supreme Court: 1. In this country, 
 corpses and their burials are not matters 
 of ecclesiastical cognizance. 2. That t)ie 
 right to bury a corpse and preserve its 
 remains is a legal right, belonging, in the 
 absence of testamentary disposition, ex- 
 clusively to the next of kin, and includes 
 the right to select and change the place 
 of sepulture at pleasure. 3. If place of 
 burial is taken fur public use the next of 
 kin may claim indemnity for expense 
 of removing and suitably re-interring 
 their remains. Beekman Street, in re, 4 
 Bradf. (N. Y.) 503, 632, 1856; Bogert v. 
 City of Indianapolis, 13 Ind. 134, 1859, 
 per Perkins, J. Many cases relating to 
 the law of cemeteries are collected in Mr. 
 Thompson's note to Louisville v. Nevin, 
 19 Am. Rep. 78, 79, 1874; s. c. 10 Bush 
 (Ky.), 549. See, also. Brick Church, in re, 
 8 Edw. Ch. Rep. (N. Y.) 155. Laying 
 streets and highways tlirough cemeteries. 
 Cemetery Assoc, v. New Haven, 43 Conn. 
 234, 1875; s. c. 21 Am. Rep. 643; and 
 note and cases cited. Trustees v. Walsh, 
 57 111. 363; s. o. 11 Am. Rep. 21. Local 
 
§ 374] MUNICIPAL ORDINANCES OK BY-LAWS. 375 
 
 that burden upon a particular class is unreasonable and void.^ 
 Cemeteries in cities are not jaer se nuisances, but special circum- 
 stances may make them so. It is not, however, sufficient that 
 they affect the market value of property in the vicinity.^ A city 
 corporation had power, by charter, " to establish cemeteries or 
 burial places within or without the city." It was held that this 
 would authorize the city to establish cemeteries of its own, and 
 regulate them ; but that it did not empower the council to sub- 
 ject to the control of the city sexton cemeteries other than those 
 belonging to the city, nor to pass an ordinance prohibiting lot 
 owners in private cemeteries, though within the city limits, from 
 entering to bury without the permission of the city sexton, to be 
 obtained only by paying him the price of digging a grave.^ Cer- 
 tain statutes of N'ew York, authorizing incorporated rural ceme- 
 tery associations to condemn lands for cemetery purposes, where 
 no right on the part of the public to buy lots or bury their dead 
 there, or to fix the price of lots, is secured, were held to be un- 
 constitutional, on the ground that the use was private and not 
 public* 
 
 § 874. (308) Nuisances, and of the Power to prevent and 
 abate. — It is to secure and promote the public health, safety, 
 and convenience that municipal corporations are so generally and. 
 so liberally endowed with power to prevent and abate nuisances. 
 This authority may be constitutionally conferred on the incorpor- 
 ated place, and it authorizes its council to act against that which 
 comes within the legal notion of a nuisance ; but such power, con- 
 ferred in general terms, cannot be taken to authorize the extra- 
 judicial condemnation and destruction of that as a nuisance which, 
 in its nature, situation, or use, is not such.^ Speaking upon this 
 
 assessments for improvements of adjoin- re, 66 N. Y. 669 ; overruling s. c. 5 .Hun, 
 
 ing streets. Louisville v. Nevin, 10 Bush 482. 
 
 (Ky.), 549, 1874; s. c. 19 Am. Eep. 78. ^ Crosby v. Warren, 1 Rich. (South 
 
 See on this ^omt, post, sec. 776. Car.) 885; Roberts v. Ogle, 30 111. 459; 
 
 1 Beurojohn K. Mayor, etc.,27 Ala. 58, Salem v. Railroad Co., 98 Mass. 431; 
 1855. Dingley v. Boston, 100 Mass. 544; Van 
 
 2 New Orleans v. St. Louis Church, 11 Dyke v. Cincinnati, 1 Disney (Ohio), 532 ; 
 La. An. 244, 1856 ; Musgrove v. Same, 10 Lake View v. Letz, 44 111. 81 ; Wreford' 
 lb. 431; Lake View v. Letz, 44 111. 81, ». People, 14 Mioh. 41, 1865; State v. 
 1867. Jersey City, 5 Dutch. (N. J.) 170. That 
 
 ^ Bogert V. Indianapolis, 13 Ind. 134, which is authorized by legislative author- 
 
 1859. ity cannot be declared a nuisance by a 
 
 * Deansville Cemetery Association, in city corporation. lb. The power to abate 
 
376 
 
 MUNICIPAL COKPORATIONS. 
 
 [CH. XIL 
 
 subject in a very recent case, where a city, under authority to 
 prevent and restrain encroachments on rivers running through it, 
 
 nuisances is a portion of police authority 
 necessarily vested in the corporation of 
 all populous towns. Kennedy v. Phelps, 
 10 La. An. 227, per Buchanan, J. Nui- 
 sances are of two kinds, — public or 
 common nuisances, which afiect people 
 generally, and private nuisances, which 
 may be defined as anything done to the 
 hurt of the lands, tenements, or heredit- 
 aments of another. Russell on Crimes, 
 4th Ed. 435. That which affects only 
 three or four persons is a private and 
 not a public nuisance. Tlie King v. 
 Lloyd, 4 Esp. 200. The term " nuisance " 
 is well understood, and means literally 
 annoyance, — anything that worketh hurt. 
 The King v. White, 1 Burr. 333; The 
 King 0. Davey, 5 Esp. 217; Burditt v. 
 Swenson, 17 Tex. 489. It is not neces- 
 sary to constitute a nuisance to show that 
 the smell, etc., produced should be un- 
 wholesome. It' is enough if it renders 
 the enjoyment of life and property un- 
 comfortable. Per Lord Mansfield, in The 
 King V. White et al., 1 Burr. 337 ; The 
 King V. Neill, 2 C. & P. 485; St. Helen's 
 Chemical Co. v. Corporation of St. 
 Helen's, L. R. 1 Ex. Div. 196. " If there 
 be smells ofiensive to the senses, that is 
 enough, as the neighborhood has a right 
 to fresh and pure air." Per Abbott, C. J., 
 The King «. NeiU, 2 C. & P. 485. " The 
 only question therefore is. Is the business 
 (slaughter-house), as carried on by the 
 defendant, productive of smells to persons 
 passing along the public highway f " lb. 
 A by-law providing " that no person shall 
 keep a slaughter-house within the city 
 without a special resolution of the coun- 
 cil" is bad, tending to create a monopoly. 
 Nash & McCracken, in re, 33 Upper 
 Can. Q. B. 181. So a by-law imposing a 
 fine upon every person " who shall keep 
 or suffer to be kept, any swine within the 
 said borough from 1st February to 31st 
 October inclusive, in any year. " Everett 
 V. Grapes, 3 L. T. N. S. 669. A resolution 
 or license from the corporation held to be 
 no defence to a prosecution for a public 
 nuisance. The King v. Cross, 2 C. & P. 483. 
 " This certificate is no defence ; and even 
 if it were, a license from all the magis- 
 trates in the coimty to the defendant to 
 
 slaughter horses in this very place, it 
 would not entitle the defendant to con- 
 tinue the business there one hour after it 
 became a public nuisance to the neighbor- 
 hood. ... If the defendant's slaughtering 
 house was so conducted as to be a public 
 nuisance at common law, the parish 
 might at any time have caused it to be 
 removed; and X am clearly of opinion 
 that in this case it was so conducted as to 
 be a nuisance at common law, and that 
 the defendant would not have been and is 
 not entitled to any compensation." It 
 was in this case proved that smells pro- 
 ceeded from the slaughter-house which 
 were a great nuisance to persons passing 
 along the public highway. If a certain 
 noxious trade is already established in a 
 place remote from habitation and public 
 roads, and persons afterwards come and 
 build houses within reach of its noxious 
 effects, or if a public road be made so 
 near to it that the carrying on of the 
 trade becomes a nuisance to the persons 
 using the road, in those cases the party 
 would be entitled to continue his trade, 
 because his trade was legal before the 
 erection of the houses in the one case, 
 and the making of the road in the other. 
 Per Abbott, C. J., in The King v. Cross, 2 
 C. & P. 484. But gucere ? But if the man 
 so situated increase the nuisance by the 
 manner or extent to which he carries on 
 the trade, he is liable to indictment. The 
 King V. Watts, M. & M. 281 ; The King o. 
 Neville, 1 Peake, 92. In countries, how- 
 ever, where great works are carried on, 
 which are the means of developing nation- 
 al wealth, persons must not stand on eX' 
 treme rights. Bamford v. Turnley, 3 B. 
 & S. 62-^6 ; Tipping v. St. Helen's Smeltr 
 ing Co., 4 B. & S. 608; s. c. 11 H. L. C. 
 642 ; Gaunt v. Fynney, L. R. 8 Ch. Ap. 8 ; 
 Harrison v. Good, L. E. 11 Eq. 338; Sal- 
 vin V. Nortli Branchepeth Canal Co., L. 
 R. 9 Chy. 705; Ball v. Ray, L. R. 8 Chy. 
 467 ; Broder v. Saillard, L. R. 2 Ch. Div. 
 692. 
 
 But a private individual cannot justify 
 damaging the property of another on the 
 ground that it is a public nuisance unless 
 it do him a special and particular injury. 
 Dimes v. PeUey, 15 Q. B. 276; Arnold v. 
 
§ 374.] 
 
 MUNICIPAL OEDINANCES OR BY-LAWS. 
 
 377 
 
 commenced summary proceeding to remove a private wharf, an 
 eminent judge uses this language : " But the mere declaration by 
 
 Holbrook, L. R. 8 Q. B. 96 ; The Mayor, 
 etc. of Scarborough v. Rural Sanitary 
 Authority of Scarborough, L. R. 1 Ex. 
 Div. 344. A distinction must be drawn 
 between a house which is a nuisance per 
 se, and one that is only a nuisance by rea- 
 son of its use or abuse. In the latter case 
 there is no legal right to destroy the prop- 
 erty. In several parts of England public 
 slaughter-houses are established, under a 
 provision that " no person shall slaughter 
 any cattle or dress any carcass for sale as 
 food for man in any place witliin the 
 limits other than a slaughter-house" It 
 was held that the enactment only applied 
 to the slaughtering of beasts intended by 
 the person slaughtering the same for sale 
 for human food. Elias ». Nightingale, 8 
 E. & B. 698 ; see further, Anthony v. The 
 Brecon Markets Co., L. B. 2 Ex. 167 ; re- 
 versed, L. R. 7 Ex. 399. An indictment 
 will lie for a public nuisance, but not for 
 a private nuisance. The King v. Atkins, 
 3 Burr. 1708. That which is not of pub- 
 lic concern is a mere civil injury. The 
 King V. Storr, 3 Burr. 1698; The King v. 
 Johnson, 1 Wils. 325. The non-repair of 
 a private road, even by a public body, is 
 not indictablij. The King v. Richards, 8 
 T. R. 634 ; The King o. Trafford, 1 B. & 
 Ad. 874. The writ quod permittat lay at 
 common law to prostrate a public nui- 
 sance (Falmer v. Poultney, 2 Salk. 458), 
 and after judgment on an indictment for 
 a, nuisance, a writ of prostration may 
 still be issued. The King v, Newdigate, 
 Comb. 10 ; Houghton's Case, Sir T. Boyd, 
 215 ; Vin. Abr. " Nuisance," A. lb. " Che- 
 min," Fitz. Nat. Brev. 124; The Queen 
 V. Haynes, 7 Ir. L. R. 2. An action on 
 the case will Ue for the continuance of a 
 nuisance after recovery for its erection. 
 Rosewell v. Prior, 1 Salk. 460. Though 
 an indictment for a nuisance is in form a 
 criminal, it is in substance a civil pro- 
 ceeding remedial in its object. The King 
 l: Sadler, 4 C. & P. 218 ; Holmes ». Wil- 
 son, 10 A. & E. 503 ; Douglass, in re, 3 Q. 
 B. 825; Thompson v. Gibson, 7 M. & W. 
 456 ; The Queen v. Chorley, 12 Q. B. 515 ; 
 The King v. Russell, 3 E. & B. 942; 
 The Queen v. Loughton, 3 Smith, 575 ; 
 The Queen v. Lincomb, 2 Chit. 214. 
 
 Upon an indictment for a continuing 
 nuisance — such as a wall across a high- 
 way — ^the proper judgment is, that it be 
 abated (The King u. Stead, 8 T. E. 142; 
 The King w. Yorkshire, 7 T. R. 467), and 
 when the court is satisfied before judg- 
 ment that a nuisance has been abated, 
 the judgment need not be pronounced. 
 The King v. Incledon, 13 East, 164; The 
 Queen v. Paget, 3 F. & F. 29. The prac- 
 tice followed is to respite judgment until 
 it be seen whether or not the nuisance is 
 abated, and if not to inflict a heavy fine 
 to compel the abatement. There may be 
 an indictment for the continuance of a 
 nuisance (The Queen v. May bury, 4 F. 
 & F. 90), and in such a case the former 
 judgment is conclusive that the locus in 
 guo was a highway, and that the erection 
 upon it was a nuisance. This being so, 
 upon proof of the continuance of the nui- 
 sance, the jury must find the defendant 
 guilty. See further, Regina v, Jackson, 
 40 Upper Can. Q.B.290. 
 
 As to the right of an adjoining owner 
 to recover damages for a prinate injury 
 resulting from a public nuisance in a public 
 highway, where there is a direct and par- 
 ticular damage, such as that arising from 
 unreasonable obstruction to the access 
 to his premises from the highway. Fritz 
 V. Hobson, 19 Am. Law Reg. 615, 1880, 
 and note. 
 
 Ringing of bells, blowing of horns, and 
 other unusual noises, are treated as nui- 
 sances. They may or may not be nui- 
 sances according to circumstances. It is 
 in the power, however, of the corporation 
 at any time to treat all such, when in 
 streets and public places, as nuisances, 
 and prevent them. It is difficult to de- 
 scribe, though easy to imagine, such "an 
 unusual noise " as would be a nuisance. 
 Some examples may, however, be given. 
 The noise of a tinsmith in carrying on 
 his trade, if in a neighborhood where 
 there is a number of offices, and of suffi- 
 cient magnitude to prevent the occupants 
 from following their lawful business, will, 
 if it affect a considerable number of in- 
 habitants, be deemed a public nuisance. 
 The King v. Lloyd, 4 Esp. 200. 
 
 A circus, the performances in which 
 
378 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. XII. 
 
 the city council that a certain structure was an encroachment or 
 obstruction did not make it so, nor could such declaration make 
 it a nuisance unless it in fact had that character. It is a doctrine 
 not to be tolerated in this country that a municipal corporation, 
 without any general laws either of the city or of the state, within 
 which a given structure can be shown to be a nuisance, can, by 
 the mere declaration that it is one, subject it to removal by any 
 person supposed to be aggrieved, or even by the city itself. This 
 would place every house, every bttsiness, and all the property 
 in the city, at the uncontrolled will of the temporary local 
 authorities." ^ 
 
 were to be carried on for eight weeks 
 near the plaintiff's house, and the per- 
 formances, which took place every even- 
 ing, lasted from about half-past seven till 
 halt-past ten o'clock. The noise of the 
 music and shouting in the circus could be 
 distinctly heard all over the house, and 
 was so loud that it could be heard above 
 the conversation in the dining-room, 
 though the windows and shutters were 
 closed. This was held to be a nuisance. 
 Inchbald v. Robinson, L. R. 4 Ch. App. 
 888. If a man builds a rolling-mill close 
 to inhabited cottages, so that, the vibra- 
 tion produced by the hammers cracks the 
 walls of the cottages, and the noise of the 
 mill causes them to become and remain 
 uninhabited, the rolling-mill will be a 
 nuisance. Scott v. Frith, 4 F. & F. 349 ; 
 B. c. 10 L. T. N. S. 240. 
 
 A shooting ground near a public high- 
 way, where persons come to shoot with 
 rifles at pigeons, targets, etc., may be a 
 nuisance. The King v. Moore, 3 B. & Ad. 
 184. So, by means of powder, working 
 stone quarries near the public streets and 
 dwelling-houses. The Queen v. Mutters, 
 10 Cox, 6 ; Harr. Munic. Man. 4th ed. 
 
 A corporation has no more right to 
 license or maintain a nuisance than an indi- 
 vidual would have, and for anuisance main- 
 tained upon its property the same liability 
 attaches against a city as to an individual. 
 Haag V. Co. Commrs., 60 Ind. 511 ; Peters- 
 burg V. Applegarth, 28 Gratt. ( Va.) 321 ; 
 Brayton v. Fall River, 113 Mass. 218; 
 Franklin, etc. Co. u. Portland, 67 Me. 46 ; 
 Harper v. Milwaukee, 30 Wis. 365 ; Wood 
 on Nuisances, sec. 742. A city was held 
 liable for erecting a pest-house whereby 
 
 plaintiff's premises became unhealthful 
 and infected with the same disease, and 
 the occupancy rendered unsafe and un- 
 pleasant. Hiblett V. Nashville, 12 Heisk. 
 684. May pass ordinances to prevent as 
 well as remove. Gregory v. Railroad Co., 
 40 N. Y. 273 ; see Wood on Nuisances, 
 sees. 740, 741, and cases cited. A city 
 held to have no power to destroy a dam 
 across a creek within its limits as a nui- 
 sance. Clark V. Mayor, etc. of Syracuse, 
 13 Barb. (N. Y.) 32. Abatement by indi- 
 viduals and public officers. Marsh & Co. v. 
 Van Keuren, 8 C. E. Green (28 N. J. Eq.), 
 251 ; Meeker «. Van Rensselaer, 15 Wend. 
 (N. Y.) 397. Destruction of building by 
 mob. Brightman v. Bristol, 65 Me. 426; 
 8. c. 20 Am. Rep. 711. 
 
 1 Per Miller, J., Yates «. Milwaukee, 
 10 Wall. 497, 1870; Fieri v. Shieldsboro, 
 42 Miss. 493 ; Underwood «. Green, 42 N. 
 Y. 140 ; Darst v. People, 62 111. 306, 1869 ; 
 Miller v. Burch, 32 Tex. 209, 1869; 
 Everett v. Council Bluffs, 46 Iowa, 66, 
 1877, approving Yates v. Milwaukee; 
 Pye V. Peterson, 45 Tex. 312, 1876; 
 s. c. 23 Am. Rep. 608, approving Yates v. 
 Milwaukee. A person sick, even with 
 contagious disease, in his own house or 
 at a hotel, is not a nuisance. Boom v. 
 Utica, 2 Barb. (N. Y.) 104, 1848. 
 
 Works that amount to a private nui- 
 sance, causing actual damage to private 
 persons, cannot be justified, under a li- 
 cense from the city council, to erect 
 them. But the fact of such license is 
 evidence of great but not conclusive 
 weight in favor of the party erecting and 
 owning the works claimed to be a nui- 
 sance. Ryan v. Copes, 11 Rich. (So. Car.) 
 
§ 375.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 379 
 
 § 375. (309) Power to municipal corporation to make " by- 
 laws relative to nuisances generally " has been decided to author- 
 
 Law, 217, 1858. A pig-sty in a populous 
 place Is, per se, a nuisanue. Commrs. v. 
 Vansickle, Bright. (Pa.) 69. Liiiery sta- 
 ble in a town is not, per se, a nuisance, it 
 depends upon its location and the man- 
 ner in which it ia built, kept, or used. 
 Aldrich v. Howard, 7 Rh. Is. 87 ; s. c. 8 
 lb. 246; Burditt v. Swenson, 17 Tex. 489, 
 1856 ; Morris v. Brower, Anthon's N. P. 
 (N. Y.) 368 ; Flint v. Russell, 5 Dillon C. 
 C. R. 151, 1879 ; Harrison o. Brooks, 20 
 Ga. 537, 1856 ; Wood on Nuisances, sees. 
 528, 629 ; Packard v. Collins, 23 Barb. (N. 
 Y.) 444; Shiras v. dinger, Iowa, 20 Alb. 
 Law Jour. 45, 56. Nor a liberty pole. Al- 
 legheny 0. Zimmerman, 10 Pitts. Leg. 
 Jour. 168 ; Dargan v. Waddell, 9 Ire. (N. C. 
 Law) 244; Kirkman v. Handy, 11 Humph. 
 (Tenn.) 406; Coker i>. Birge, 10 Ga. 336. 
 A tannery is not,;)erse, a nuisance. State o. 
 Cadwalader, 7 Vroom (36 N. J. L.),283. 
 Brick-making: Wanstead, etc. v. Hill, 13 
 C. B. (N. S.) 479. Slaughter-house: Du- 
 bois 0. Budlong, 10 Bosw. (N. Y.) 700; 
 Atty .-General v. Steward (5. C.B. Green), 
 20 N. J. Eq. 415. Powder-house, with 
 large quantities of powder therein, locat- 
 ed in a city, is a nuisance. Cheatham v. 
 Shearn, 1 Swan (Tenn.), 213, 216 ; Dume- 
 snil V. Dupont, 18 B. Mon. (Ky.) 800. The 
 manufacturing and keeping large quanti- 
 ties of gunpowder in towns or closely in- 
 habited plages is an indictable offence at 
 common law. The King v. Williams, 1 
 Buss. 321 ; The King v. Taylor, 2 Str. 
 1167 ; Crowder v. Tinkler, 19 Ves. 617. 
 Planing mill : Rhodes v. Dunbar, 57 Pa. 
 St. 274; Duncan v. Hayes, 22 N. J. Eq. 
 25, 1871. As to gas-works : Cleveland v. 
 Gaslight Co., 20 N. J. Eq. 201. Steam 
 /louring mill: Gilbert v. Sliowerman, 23 
 Mich. 448. Stock-yards: lb. 296; Ash- 
 brook V. Commonwealth, 1 Bush (Ky.), 
 139. Porgy oil factory : Broughton v. Bris- 
 tol, 65 Me.' 428, 1876; s. c. 20 Am. Rep. 
 711 ; Prides : Wahle v. Reinbach, 76 111. 
 322. Gas companies: Clereland v. Citi- 
 zens' Gas Co., 5 C. E. Green (20 N. J. 
 Eq.), 203. Potteries: Ross v. Butler, 19 
 N. J. Eq. 294. Flouring Mill: Under the 
 power to prevent nuisances and danger- 
 ous manufactories, a municipal corpora- 
 
 tion cannot, on petition of citizens, deal 
 with a flouring mill as a nuisance, unless 
 it is shown by the record to fall within 
 some law or ordinance previously passed. 
 Lake v. Aberdeen, 67 Miss. 260. In 
 Louisiana, where the civil code (art. 
 655) provides that works, etc., causing 
 annoyance " shall be regulated by the 
 rules of the police or the customs 
 of the place " where located, an ordi- 
 nance of a city council ordering a 
 blacksmith shop to be closed as a nui- 
 sance is authorized by law, and may be 
 carried into effect by an injunction, pro- 
 cured by the city in its corporate name 
 restraining the owner from continuing the 
 shop. New Orleans v. Lambert, 14 La. 
 An. 247, 1859. 
 
 Power of municipal corporations to re 
 move nuisances, and how far their decis- 
 ion as to fact of nuisance is conclusive. 
 Welch V. Stowell, 2 Doug. (Mich.) 332; 
 Kennedy u. Board of Health, 2 Pa. St. 
 366; Commrs. ». Vansickle, Bright. (Pa.) 
 69 ; Green v. Savannah, 6 Ga. 1 ; Rob- 
 erts V. Ogle, 30 111. 459 ; Clark v. Mayor, 
 etc., 13 Barb. (N. Y.) 32 ; Saltonstall v. 
 Banker, 8 Gray (Mass.), 196; Kennedy v. 
 Phelps, 10 La. An. 227 ; Green v. Under- 
 wood, 42 N. Y. 140 ; Mayor of Hudson v. 
 Thome, 7 Paige (N. Y.), 261; Salem u. 
 Railroad Co., 98 Mass. 431 ; Chicago v. 
 Saffein, 49 111. 172 ; Babcock v. Buffalo, 56 
 N. Y. 268 ; Darst v. People (intoxicating 
 liquors), 51 III. 286, 1869. The power of 
 municipal corporations, with respect to 
 nuisances, is treated in the chapter xxii. of 
 Mr. Wood's work on the Law of Nuisances. 
 Instance ofrefusal by a court of chancery 
 to interfere with the municipal authori- 
 ties in removing nuisances. Ferguson v. 
 Selma, 43 Ala. 398, 1869. 
 
 Under the English Municipal Corpora- 
 tions Act the council of any borough is 
 empowered to make by-laws for the good 
 rule and government of the borough, and 
 the prevention and suppression of nuisances 
 (ante, sec. 337) ; and it is held that this 
 power respecting the suppression of nui- 
 sances is confined to the suppression and 
 prohibition of acts which, if done, must 
 necessarily and inevitably cause a nui- 
 
380 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XII. 
 
 thorize an ordinance prohibiting the keeping, in any manner 
 whatsoever, of a howling-alley for gain or hire, such a place being 
 a public nuisance at common law.^ So under power to pass 
 by-laws to prevent and remove nuisances, an ordinance may be 
 passed inflicting a fine on any person who should exhibit a stud- 
 horse in the streets of the corporation.^ 
 
 sance, and it does not empower the coun- 
 cil to impose penalties for the doing of 
 things which may or may not be a nui- 
 sance according to circumstances. Thus, 
 where the town council imposed a fine 
 upon every person who should "keep or 
 suffer to be kept any swine within the 
 borough, between the first of May and 
 the first of October," it was held that the 
 by-law was wholly invalid, as the keep- 
 ing of a pig did not necessarily create a 
 nuisance. Addison on Torts, 34, citing 
 Everett v. Grapes, 3 Law T. K. N. S. Q. B. 
 669; Wanstead Local Board v. Hill, 13 
 C. B. N. S. 479. 
 
 1 Tanner v. Albion, 5 Hill (N. Y.), 121, 
 1843; followed, Updyke v. Campbell, 4 
 E. D. Smith (N. Y.), 570, 1855 ; The Peo- 
 ple V. Sargeant, 8 Cow. (N.Y.) 139, which 
 held that a room kept for the playing of 
 billiards was not a public nuisance, though 
 a profit was made of it, commented on and 
 distinguished, and by Cowen, J., doubted, 
 in 6 Hill, supra. Whether a ball alley 
 could be prohibited under the general au- 
 thority to pass by-laws relative to good 
 government, etc., was alluded to, but not 
 determined. See Jackson v. People, 9 
 Mich. Ill ; Smith v. Madison, 7 Ind. 86. 
 In the State v. Hull, 32 N. J. 158, 1867, it 
 was held that a ten-pin alley kept for 
 gain and public use in a town is not, per 
 se, a nuisance. The law on the subject is 
 very fully examined in the opinion of 
 Beasley, C. J., and the case of Tanner v. 
 Albion, supra, reviewed and disapproved. 
 Where a city has, by its charter, the 
 power to determine whether bowling 
 alleys should be allowed, and, if so, under 
 what restrictions, an ordinance requiring 
 them to be closed at a certain hour is 
 valid. State ». Hay, 29 Me. (15 Shep.) 
 457, 1849 ; State v. Freeman, 38 N. H. 426 ; 
 mpra, sec. 368, note. A statute of Mis- 
 souri designed to suppress gambling in 
 St. Louis authorized the police to seize 
 gaming tables and gaming devices used 
 
 for gambling, and made it the duty of the 
 president of the police to cause the same 
 to fee publicly destroyed. This could be 
 done without notice to the owner or any 
 semblance of judicial investigation. The 
 statute was declared unconstitutional as 
 depriving the owner of such gambling 
 tables, etc., of his property without due 
 process of law. Lowry v. Rainwater, Mo., 
 1879, not yet reported; s. c. 21 Alb. 
 Law Jour. 72; Fisher v. McGirr, 1 Gray 
 (Mass.), 1; Hibbard ». People, 4 Mich. 
 126; Lincohi v. Smith, 27 Vt. 354. Un- 
 der authority to pass such ordinances as 
 the council " may consider fit and proper 
 to remove nuisances or causes of disease," 
 etc., it was held that the city of Savannah 
 might prohibit the growing of rice within 
 the corporate limits, as being inj urious to 
 the health of the city, and abate the same, 
 and that such an ordinance was valid as 
 a police regulation. Green v. Savannah, 
 6 Ga. 1, 1849. City held to have no 
 power to license a keno table to be kept 
 for gaming. Schuster v. State, 48 Ala. 
 199, 1872. Where proceedings in respect 
 to nuisances are instituted by order of the 
 city council, chancery will not enjoin or 
 interfere, " unless the municipal corpora- 
 tion have clearly transcended their pow- 
 ers." Kennedy v. Phelps, 10 La. An. 227, 
 1855 (building for curing hides) ; s. p. 
 Milne v. Davidson (private hospital), 5 
 Mar. (La.) 586, 1827; Potter v. Menasha, 
 30 Wis. 492, 1872 ; post, see. 405, note. 
 
 2 Nolin V. Mayor, 4 Yerg. (Tenn.) 163, 
 1833. Under power "to prevent and re- 
 move nuisances," a corporation may, if a 
 vacant building is so used as to endanger 
 by fire the property of others, or the health 
 of the community, declare the same a nui- 
 sance and notify owner to abate it, and if 
 he fails, the individual ofiScer of the cor- 
 poration who abates the nuisance may, on 
 being individually sued, justify the act. 
 Harvey v. Dewoody, 18 Ark. 252, 1866. 
 
 Where a city council has authority 
 
§ 376.] 
 
 MUNICIPAL ORDINANCES OK BY-LAWS. 
 
 381 
 
 § 876. (310) Power " to suppress bawdy houses " gives the 
 corporation authority, by implication, to adopt, by ordinance, the 
 proper means to accomplish the end ; and among the methods 
 which may be adopted is one forbidding the owners of houses 
 from renting or letting the same for this purpose, or with knowl- 
 edge that they are to be thus used.^ But power to the common 
 council of a city " to make all such by-laws as it may deem ex- 
 pedient for effectually preventing and suppressing houses of ill- 
 fame," does not authorize the council to decide that a given 
 house is kept for that purpose, nor, if kept for that purpose, 
 does it authorize the council to order it to be demolished ; nor. 
 
 under its charter to prevent and remove 
 all nuisances within the city, " sucli as 
 all decayed and dilapidated houses and 
 structures calculated to produce disease 
 of any kind, or unfit for use or habita- 
 tion, etc., a court of chancery will not in- 
 terfere to prevent the removal of such 
 nuisance unless it appears that the com- 
 plainant's right is illegally assailed, or 
 threatened with an irreparable injury, 
 and there is no sufScient remedy at law. 
 Ferguson v. Selma, 43 Ala. 398, 1869. In 
 this case the court denied an injunction 
 to prevent the removal by the city au- 
 thorities of two old dilapidated, substan- 
 tially valueless houses, on a, lot in an 
 improving and flourishing part of the city, 
 which were filthy, and crowded with filthy 
 tenants, and which had also been con- 
 demned as a nuisance by the board of 
 health of the city, lb.; infra, sec. 377, 
 note. But a city under a charter author- 
 izing the common council " to regulate all 
 wharves on the shore of the Ohio River, 
 adjoining said city," cannot by ordinance 
 define the line of high-water mark, and 
 declare the erection of buildings below 
 said line a, nuisance, and impose a fine 
 upon persons erecting such buildings on 
 their own lands. Evansville v. Martin, 
 41 Ind. 145, 1872. 
 
 If a sewer is declared to be a private 
 nuisance to property, the owner is entitled 
 to an injunction against the city as he 
 would be against a private individual ; 
 but a court in granting such injunction 
 will postpone its operation a reasonable 
 time in order to enable the city to take 
 adequate measures to remove the nui- 
 sance without unnecessary injury to the 
 
 public health or interests. Haskell v. New 
 Bedford, 108 Mass. 208; Boston Roll- 
 ing Mills V. Cambridge, 117 Mass. 896; 
 Attorney-General v. Birmingham, 4 K. & 
 J. 528; Spokes v. Banbury, L. E. 1 Eq. 
 42 ; Goldsmid v. Turnbridge, L. R. 1 Eq. 
 161 ; Attorney-General o. Bradford. L. E. 
 2 Eq. 71 ; Attorney-General v. Colney, etc., 
 L. R. 4 Ch. 146 ; Breed v. Lynn, 126 Mass. 
 367. 
 
 1 Childress v. Mayor, etc., 3 Sneed 
 (Tenn.), 347, 1855. " Construction of 
 power "to regulate or suppress bawdy- 
 houses." State V. Clark, 54 Mo. 17, 1873; 
 State V. DeBar, 58 Mo. 395, 1874; com- 
 mented on ante, sec. 87, note; post, sec. 
 436. Power to malie by-laws relative to 
 nuisances gives authority to impose pen- 
 alties on the keepers of houses of ill-fame, 
 and on persons owning houses used, with 
 their knowledge, for this purpose. McAlis- 
 ter «. Clark, 33 Conn, 91, 1865 ; see Ely 
 V. Supervisors, 36 N. Y. 297 ; Shaffer v. 
 Mumma, 17 Md. 331, 1861. In prosecu- 
 tions for keeping bawdy-houses, the law, 
 it has been said, so far relaxes the ordi- 
 nary rule that common reputation as to 
 the character of the defendants, and of 
 the houses which they keep, is admissible. 
 State 1-. McDowell, Dudley (So. Car.) 
 Law, 346. Keeping house of ill-fame, 
 what ■! Queen v. Rice, L. E. 1 C. C. 21. 
 Sufficient to charge that the defendant 
 did on, etc., in the city of, etc., keep a 
 common disorderly bawdy-house on a 
 specified street in said city as a place of 
 resort, for both men and women of lewd 
 character. Queen v. Munro, 22 Upper 
 Can. Q. B. 44. 
 
382 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XII. 
 
 if thus demolished, will it justify the officers of the city who 
 did it, in execution of the ordinance and resolution of the 
 council.^ 
 
 § 377. (311) A city charged by law with the duty of prevent- 
 ing obstructions of a river within its limits may, by its own act, 
 and without proceeding by indictment, abate or remove any- 
 thing which obstructs the free and public use of the river, such 
 as a floating storehouse, calculated* to remain stationary in the 
 water, and which exclusively occupies a portion of the river, such 
 a structure being a public nuisance.^ It is no answer to this 
 right of abatement that room enough is left for the public, or that 
 the structure is beneficial ; ^ or that the party erecting it is the 
 owner of the adjacent lots.* 
 
 § 378. (312) But under the power to abate nuisances, prop- 
 erty lawfully erected and existing, or a house which is only a 
 nuisance because occupied by a business which is such, cannot 
 
 1 Welch V. Stowell, 2 Doug. (Mich.) 
 332, 1846. In England municipal corpora- 
 tions have the power to prevept indecent 
 public exposure of the person and other indecent 
 exhibitions. In order to render a person liar 
 ble to an indictment for indecently expos- 
 ing his person in a public place, it is not 
 necessary that the exposure should be 
 made in a place open to the public. The 
 Queen o. Thallman, 9 Cox C. C. 388 ; s. c. 
 9 L. T. N. S. 425. If the act is done where 
 a great number of persons may be offend- 
 ed by it, and several see it, it is sufficient. 
 lb. If the indictment, however, charge 
 the offence to have been committed on a 
 highway, such an indictment will not be 
 sustained by evidence that the offence 
 was committed in a place near the high- 
 way, though in full view of it. The 
 Queen v. Farrell, 9 Cox C. C. 446. An 
 indecent exposure in a place of public 
 resort, if actually seen by only one per- 
 son, no other person being in a position 
 to see it, is not an indictable offence. The 
 Queen *. Webb, 1 Den. C. C. 338; The 
 Queen v. Watson, 2 Cox C. C. 376; 
 The Queen v. Farrell, 9 Cox C. C. 446. 
 A party was indicted for an indecent ex- 
 posure in an omnibus, several passengers 
 being therein. Held, a public place. Tlie 
 
 Queen v. Holmes, 3 C. & K. 360. But a 
 urinal, with boxes or divisions for the 
 convenience of the public, though situ- 
 ated in an open market, was held not to 
 be a public place within the meaning of 
 the allegation. The Queen v. Orchard, 3 
 Cox C. C. 248. Keeping a booth in a. 
 public place containing an indecent ex- 
 hibition for liire, is an indictable offence. 
 Begina v. Saunders, L. R. 1 Q. B. Div. 15. 
 
 " Hart V. Mayor, etc. of Albany, 9 
 Wend. (N. Y.) 671, 1832, — a valuable and 
 very carefully considered case, affirming 
 B.C. 3 Paige (N. Y.), Ch. 213; People v. 
 Vanderbilt, 28 N. Y. 396. See Dutton v. 
 Strong, 1 Black, 23. The corporate body 
 may abate or remove the nuisance ; but 
 without express authority cannot ordain a 
 forfeiture of the structure, or seize and sell it, 
 or convert the materials to their own use. 
 Hart V. Mayor, 9 Wend. (N. Y.) 671, 609, 
 supra. 
 
 ' lb. Eespublica v. Caldwell, 1 Dal. 
 150; King ». Russell, 6 East, 427; King 
 V. Cross, 3 Camp. 224 ; King v. Jones, 3 
 Camp. 229. 
 
 * Hart I). Mayor, etc., 9 Wend. (N. T.) 
 671, 608 ; Strange R. 1247 ; 3 Bac. Abr. 
 686 ; 1 Hawk. P. C. 363, note 1. 
 
§ 379.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 383 
 
 be destroyed or demolished. The public can proceed by indict- 
 ment, or the business carried on in the house be suppressed.* 
 
 § 379. Finally, it may be remarked that the extent of muni- 
 cipal authority over nuisances depends, of course, upon the pow- 
 ers conferred in this regard upon the municipality. They may 
 be general or specific or both. The authority to preserve the 
 health and safety of the inhabitants and their property, as well 
 as the authority to prevent and abate nuisances, is a sufficient 
 foundation for ordinances to suppress and prohibit whatever is 
 intrinsically and inevitably a nuisance.^ The authority to declare 
 what is a nuisance is somewhat broader, but neither this nor the 
 general authority mentioned in the last preceding sentence will 
 justify the declaring of acts, avocations, or structures not injuri- 
 ous to health or property to be nuisances.^ Much must necessa- 
 rily be left to the discretion of the municipal authorities, and their 
 acts will not be judicially interfered with unless they are mani- 
 
 1 Clark V. Syracuse, 13 Barb. (N. Y.) 
 32; Welch v. Stowell, 2 Doug. (Mich.) 
 832, 1846 ; Miller v. Burch, 32 Tex. 209, 
 1869; s. 0. 5 Am. Rep. 242. When 
 equity will interfere to prevent and re- 
 move nuisances which affect the public 
 generally. People v. St. Louis, 5 Gilm. 
 (10 111.) 372 ; Hoole i/. Attorney General, 
 22 Ala. 190 ; Attorney General v. Gas 
 Co., 19 Eng. Law & Eq. 639 ; Aldrich v. 
 Howard, 7 Rh. Is. 87 ; Zabriskie v. Rail- 
 road Co., 2 Beasley Ch. (N. J.) 314; Jer- 
 sey City V. Hudson, 76. 420; Attorney 
 General v. Brown, 9 C. E. Green (24 N. 
 J. Eq.), 89; Wood on Nuisances, ch. xxv ; 
 Dumesnil v. Dupont, 18 B. Mon. (Ky.) 
 800, 1857. A city council may, by reso- 
 lution, direct its officers to proceed against 
 a specified establishment as a nuisance, 
 and cause the same to be abated under a 
 general ordinance of the corporation ; this 
 is a different thing from passing an ordi- 
 nance inflicting a fine upon a particular 
 person for keeping a nuisance, which can- 
 not bo lawfully done. Kennedy v. Phelps, 
 10 La. An. 227, 1855. See Common- 
 wealth V. Goodrich, 13 Allen (Mass.), 
 545 ; Municipality v. Blineau, 8 La. An. 
 688. The power to abate nuisances must 
 be reasonably exercised, so as to do the 
 least practicable injury to private rights. 
 
 State V. Newark, 5 Vroom (38 N. J. L.), 
 264 ; Wood on Nuisances, sec. 741. Power 
 to suppress gambling-houses does not, it is 
 apprehended, authorize the corporation 
 to demolish the houses so used. All com- 
 mon gaming-houses are nuisances in the 
 eye of the law, being detrimental to the 
 public, as they promote cheating and 
 other corrupt practices, and entice num- 
 bers of persons to idleness, whose time 
 might be otherwise employed for the good 
 of the community. 1 Hawk. P. C. cap. 
 32, 8. 4 ; Bosley v. Davies, L. R. 1 Q. B. 
 Dlv. 84 ; Brodie & Bowmanville, 3 Upper 
 Can. Q. B. 580 ; Harrison Munic. Manual, 
 4th ed. Astoliabillty of a city authorized 
 to abate nuisances for failure to exercise 
 the power. Kiley v. Kansas, 69 Mo. 102 ; 
 Parker v. Macon City, 89 Ga. 729 ; Bas- 
 sett V. St. Joseph, 53 Mo. 290. Where a 
 municipal corporation does an act, lawful 
 in itself, in such a manner as to create a 
 nuisance, it is liable in the same manner 
 that an individual would be. Judge v. 
 Meriden,.S8 Conn. 90, 1871 ; Railroad Co. 
 V. Norwalk, 37 Conn. 109 ; Mooty- v. Dan- 
 bury, 45 Conn. 650, 1878. 
 
 2 Ante, sees. 141, 144, 369, et seq., 374 ; 
 post, sec. 396 and note. 
 
 * Supra, sec. 874 and notes. 
 
384 MTJNICIPAL COEPOEATIONS. [CH. XII. 
 
 festly unreasonable and oppressive or unwarrantably invade 
 private rights or clearly transcend the powers granted to them,^ 
 in which case the contemplated action may be prevented or the 
 injuries caused, redressed by appropriate suit or proceedings. 
 As there is, in such cases, a judicial remedy in favor of the citizen, 
 so on principle the right of the corporate authorities to resort at 
 their election to the courts in proper cases to aid them when the 
 citizen is in the wrong should, in the author's judgment, be also 
 recognized.^ It is not unusual to*invest the municipal council 
 with special authority/ in respect of particular avocations, trades, 
 acts, omissions, and structures, with a view to conserve the 
 public health and safety, of which many examples have been 
 given in the notes to this chapter. The terms in which such 
 authority is conferred measure its scope, but in view of the end 
 for which it is given it is not subjected to a hostile or even a 
 narrow construction.^ 
 
 § 380. (313) Markets, and of the Power to establish and regu- 
 late. — The states, under their police power, may delegate to 
 municipal corporations the authority to establish, or authorize 
 the establishment of markets ; and it is competent to such cor- 
 porations, under proper grants of power, to enact ordinances for- 
 bidding sales and purchases of marketable articles, except at 
 designated market-places. The extent of the power possessed 
 by a particular corporation depends upon its charter. In Eng- 
 land the regulation of markets by by-laws has long been exercised, 
 and such by-laws are sustained as being reasonable, and condu- 
 cive to the health and good government of the municipality.* 
 
 1 Ante, sees. 94, 95, 319, 320, ei seq. England as to markets and market tolls. 
 
 ^ /;i^a, see. 405, note. The principles Definition. — A market is a franchise or 
 
 upon which courts of equity interfere hy liberty derived from the crown, by grant, 
 
 injunction in the case of nuisances are or prescription whicli presupposes a grant, 
 
 clearly stated by Ld. Chancellor Brougham 2 Black. Com. 37. " It is a designated 
 
 in Earl of Ripon v. Hobart, 3 Mylne & place in a town or city to which all per- 
 
 Keene, 169, 179. See also Flint v. Rus- sons can repair who wish to buy or sell 
 
 sell, 5 Dillon, 151, where the authorities articles there exposed for sale." Per 
 
 are collated. Breese, J., Caldwell v. Alton, 33 111. 416. 
 
 ^ Post, sec. 396 and note. Under the police power it is competent 
 
 * Pierce w.Bartram.Cowp. 270; Player for the legislature to prohibit private 
 
 V. Jenkins, 1 Sid. 284 ; Rex v. Cottrell, 1 markets within a reasonable designated 
 
 B. & Ad. 67, 1817. See also Mosley v. distance of the public market. New Or- 
 
 Walker, 7 Barn. & Cress. 40 ; Mayor, etc. leans v. Stafford, 27 La. An. 417 ; s. c. 
 
 V. Pedley, 4 Barn. & Adol. 397 ; Grant on 21 Am. Bep. 563. 
 Corp. 166, as to exclusive privileges in " A municipal market consists : 1. In a 
 
§ 381.] 
 
 MUNICIPAL OKDINANCES OR BY-LAWS. 
 
 385 
 
 In this country the practice is almost universal on the part of the 
 legislature to confer upon the municipal agencies more or less 
 authority with respect to markets and market-places, and such 
 grants are not so strictly construed as those which invest the 
 corporation with powers of a more extraordinary or unusual 
 character ; at least, such is the case unless a monopoly in favor 
 of private individuals is sought to be sustained, against which 
 the courts strongly lean.^ 
 
 § 381. (314) Power to build and establish. — Incorporated 
 cities and towns may have the power to build market-houses 
 without an express grant. Thus it has been held that a town 
 having authority " to make by-laws for managing and ordering 
 its prudential affairs" has power — the court looking somewhat 
 to usage and custom to ascertain what subjects of common in- 
 terest are embraced under the terva,^'' prudential " — to appro- 
 priate money for the erection of a market-house, and to raise the 
 amount by taxation. This power, it was admitted, more clearly 
 exists in the case of large towns and populous villages.^ 
 
 place for sale of provisions and articles of 
 daily consumption. 2. Convenient fix- 
 tures. 8. A system of police regulations, 
 fixing market hours, making provisions 
 for lighting, watching, cleaning, detect- 
 ing false weights and unwholesome food, 
 and other arrangements calculated to 
 facilitate the intercourse and ensure the 
 honesty of buyer and seller. 4. Proper 
 officers, to preserve order and enforce 
 obedience to the rules." Per Lane, C. J., 
 Cincinnati v. Buckingham, 10 Ohio, 257, 
 1840. 
 
 1 Wartman v. Philadelphia, 33 Pa. St. 
 202, 209, 1854; LeClaire v. Davenport, 
 13 Iowa, 210 ; White v. Kent, 11 Ohio St. 
 550; St. John v. Mayor, etc. of New 
 York, 6 Duer (N. Y.), 315 ; Ash v. People, 
 11 Mich. 847 ; St. Louis v. Jackson, 25 
 Mo. 37 ; St. Louis v. Weber, 44 Mo. 547, 
 1869 ; Nightingale, in re, 11 Pick. (Mass.) 
 168; Congot v. New Orleans, 16 La. An. 
 21 ; Buffalo v. Webster, 10 Wend. (N. Y.) 
 99; Yates v. Milwaukee, 12 Wis. 673; 
 Bethune v. Hughes, 286a. 560; distin- 
 guished. Bodkins i>. Robinson, 58 Ga. 618, 
 1875 ; Ketchura v. BuflTalo, 14 N. Y. 366 ; 
 Municipality v. Cutting', 4 La. An. 886 ; 
 
 VOL. 1. 25 
 
 New Orleans v. Guillotte, 12 La. An. 
 818 (corporate partnership with indi- 
 viduals) ; State v. Lieber, 11 Iowa, 
 407 ; Dubuque v. Miller, 11 Iowa, 583 ; 
 Morano v. Mayor, 2 La. An. 218 ; St. Paul 
 V. Coulter, 12 Minn. 41 ; Atlanta v. White, 
 33 Ga. 229. 
 
 The power to establish and regulate 
 markets, like most other municipal pow- 
 ers, is a continuirtg one, and markets once 
 established may be abandoned or changed 
 at the pleasure of the corporation, and 
 the tax-payers or property owners can- 
 not restrain the action or determination 
 of the council entrusted by the charter 
 with the exercise of the power. Gall 
 V. Cincinnati, 18 Ohio St. 563, 1869. 
 
 2 Spaulding U.Lowell, 23 Pick. (Mass.) 
 71, 1839. If the real and principal ob- 
 ject is the building of a market-house, 
 the appropriation of a portion of the 
 building for other purposes, as the hold- 
 ing of courts, does not render the erection 
 of the building illegal. If, however, the 
 building of the market-house is merely 
 colorable, that is, done for the purpose of 
 accomplishing distinct and unauthorized 
 objects, it would, says Chief Justice Shaw, 
 
386 MUNICIPAL COEPOEATIONS. [CH. Xlt 
 
 § 382. (315) Power conferred upon a municipality " to estab^ 
 lish and regulate markets," authorizes, as a necessary incident, 
 the purchase of ground upon which to erect a market building.^ 
 If the title to land purchased for the erection of a market-house 
 be taken by the municipal corporation in fee, no length of use 
 of the same for a market will dedicate it for market purposes ; 
 and the markets may be abandoned or changed at the will of the 
 council, and the land thus acquired and held be sold.^ It is inci- 
 dent to the general power to buiM a market to determine upon 
 the form, dimensions, and style of the edifice, and therefore to 
 employ an architect to prepare plans, specifications, etc.^ 
 
 § 383. (316) But power to a municipal corporation to estab- 
 lish markets and build market-houses will not give the authority 
 to build them on a public street. Such erections are nuisances 
 though made by the corporation, because the street, and the en- 
 tire street, is for the use of the whole people. They are nui- 
 sances when built upon the streets, although sufficient space be 
 left for the passage of vehicles and persons. Such erections may, 
 it seems, be legalized by an express act of the legislature. But 
 unless so legalized, a nuisance erected and maintained by a pub- 
 
 probably be treated as an abuse of power according to the convenience of the in- 
 
 and a nullity. lb. Power " to appoint habitants for the time being. Dixon v. 
 
 market-places and to regulate the same " Robinson, 3 Mod. 108 ; Curwen v. Salk- 
 
 was held, in connection with a general eld, 3 East, 538 ; The King v. Cotterill, 1 
 
 welfare clause, to authorize the corpora- B. & Al. 67 ; Wortley v. The Notting- 
 
 tion to build a market-house. Smith v. ham Local Board, 21 L. T. N. S. 592. 
 
 Hewbern, 70 Nor. Car. 14, 1874; s. c. 16 And this applies, although the limits of 
 
 Am. Bep. 766. the town be afterwards extended and the 
 
 1 Ketchum v. Buffalo, 14 N. Y. 356 ; market established within the extended 
 17N.Y. 449; Caldwell ». Alton, 33 III. limits. Mayor, etc. of Dorchester v. 
 416. It is immaterial whether this power Ensor, L. R. 4 Ex. 335. But this is sub- 
 is conferred in express or direct terms, ject to the rights of any persons owning 
 or given only as part of the power to property adjoining the site of the old 
 make by-laws, ordinances, etc. Per Set- market. Ellis ». The Corporation of 
 dm, J., in Ketchum v. Buffalo, 14 N. Y. Bridgenorth, 4 L. T. N. S. 112 ; 2 Johns. 
 356, 362. Purchase of land for market. & H. 67 ; 15 C. B. N. S. 52; Harr. Munic. 
 People V. Lowber, 28 Barb. (N. Y.) 65 ; Manual, 4th ed. 
 
 s. c. more fully, 7 Abb. (N. Y.) Pr. 158; ' Peterson v. Mayor, etc. of New York, 
 
 Gale ». Kalamazoo, 23 Mich. 344, 1871. 17 N. Y. 449, 1858. His unauthorized 
 
 * Gall V. Cincinnati, 18 Ohio St. 563, employment by a committee is ratified 
 
 1869. Construction of market-grants in by a resolution of the council passed witli 
 
 England Where according to the grant notice of the facts, adopting his plans, 
 
 of a market it was to be held in a drawings, etc., and he may recover of 
 
 town, the grantee might from time to the city for the labor and service of pre- 
 
 tiine remove the place for holding it paring them. 76. 
 
§ 385.] MUNICIPAL OKDINANCES OB BY-LAWS. 387 
 
 lie corporation may be proceeded against, criminally or other- 
 wise, the same as if erected by private persons.^ 
 
 § 384. (317) Every municipal corporation which has power 
 to make by-laws and establish ordinances to promote the general 
 welfare and preserve the peace of a town or city may fix the 
 time or places of holding public markets for the sale of food, and 
 make such other regulations concerning them as may conduce to 
 the public interest.^ The right to establish a market includes the 
 right to abandon it, or shift it to another place when the public 
 convenience demands it, and of this the council is the judge.^ 
 
 § 385. C^18) Nature of Power to establish and regulate. — 
 A city corporation was invested by its charter with power " to 
 erect market-houses, to establish markets and market-places, and 
 to provide for the government and regulation thereof," and it 
 was at first decided, and in the author's judgment properly de- 
 cided, by the Supreme Court of the state, that this did not 
 authorize the corporation to pass an ordinance delegating to an 
 individual the right to erect market-houses, and to charge rent 
 for the use of the stalls therein, reserving to itself no power to 
 control the same, and that the corporation could not compel per- 
 sons to go to such markets ; but subsequently this ruling was 
 reversed, and it was held that such an ordinance was valid, and 
 that the city had the power to authorize the erection of market- 
 houses by an individual, and to declare the same a public market, 
 and to covenant to protect the owner in the exclusive privilege 
 thereof ; and that the city was liable for failing to protect him by 
 the passage of the requisite ordinances, he having, on the faith of 
 the ordinance, erected an expensive market-house.* 
 
 ■ Wiirtman v. Philadelphia., 33 Fa. St. Princeton (injanction refused), 4 Halsted 
 
 202, 210, 1854 ; St. John v. New York, 3 Ch. 309, 320. 
 
 Bosw. (N. Y.) 483; State f. Mobile, 6 2 Per S/acfe, C. J., Wartman v. Phila^ 
 
 Port. (Ala.) 279, 1837 ; Commonwealth delphia, 33 Pa. St. 202, 209, 1854. Note 
 
 V. Rush, 14 Pa. St, (2 Harris) 186 ; Com- his observations in this case upon the 
 
 monwealth v. Bowman, 3 Pa. St. (3 necessity and convenience of markets. 
 Barr) 202, 206. See chapter on Streets, ' lb. " The right to cste6/t«A markets ia 
 
 post, sees. 657, 660. Under the constitu- a branch of the sovereign power, and the 
 
 tion of New Jersey, the legislature cannot right to regulate them is necessarily a 
 
 authorize a market in the public streets power of municipal police." Per Eustes, 
 
 without providing compensation to ad- C. J., Municipality v. Cutting, 4 La. An. 
 
 j<iiuing lot owners. State v. Laverack, 335. 
 34 N. J. Law, 201, 1870; Higgins v. * Le Claire «. Davenport, 13 Iowa, 210, 
 
388 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. xii 
 
 § 386. (319) Construction of Special Powers in Relation to 
 Markets. — Power to make " by-laws relative to the public mar- 
 kets," etc., while it would not authorize a corporation entirely to 
 prohibit the sale of meats, etc., within its limits, because this 
 would be in general restraint of trade, will nevertheless authorize 
 a by-law forbidding the hawking about or selling by retail meats, 
 etc., except at the public markets and within certain limits about 
 the same.^ The courts differ somewhat in their construction of 
 
 1862 ; overruling Davenport v. Kelly, 7 
 Iowa, 102. It may be suggested that the 
 right to pass such an ordinance, and the 
 liability for failing to pass others, may 
 admit, at least, of fair debate, in view of 
 the surrender by the city of its charter 
 powers, and its inability in law to make 
 binding contracts with reference to the 
 future exercise of its legislative author- 
 ity. The soundness of this suggestion is 
 confirmed by the decision in Gale v. 
 Kalamazoo, 23 Mich. 344, 1871, post, 
 ch. xxiii. In the Kelly case, supra, the 
 point was decided, and is not overruled, 
 that the charter power to establish mar- 
 kets, etc., conferred upon the council the 
 authority to prohibit the exposing and 
 offering for sale meat in any otlier places 
 than those the ordinance designated. Ash 
 i>. People, 11 Mich. 347 ; Patch v. Pender- 
 gast, 15 Md. 251. 
 
 A city in granting a, license and sell- 
 ing to a party the right to occupy a stall 
 in the market does not impliedly contract 
 to protect the lessee from competition by 
 unlicensed persons ; nor can such a con- 
 tract be implied against the corporation 
 from the existence of an ordinance prohib- 
 iting the same ; and the failure of the offi- 
 cers of the corporation, though wilful, to 
 enforce the ordinance against unlicensed 
 sellers, is no defence to a bond given by 
 the lessee for the payment of stall rent. 
 Peck V. Austin, 22 Texas, 261, 1858. 
 Nor does a city owning and leasing a 
 market-house impliedly engage or cove- 
 nant that it will not exercise its power to 
 establish markets by erecting other mar- 
 ket-houses and leasing them to others ; if 
 it does so, the injury to the first lessees is 
 damnum absque injuria. Congot v. New 
 Orleans, 16 La. An. 21, 1861. A muni- 
 cipal corporation may contract for build- 
 ing a market-house with an individual 
 
 or corporation, conceding in consideration 
 of such building, and the use of part of 
 the same, exclusive market privileges in 
 such city, with rights to lease stalls, col- 
 lect rents, and exemption from taxes for 
 twenty-one years ; but a purchaser at a 
 sale under a judgment against the owner 
 takes only the right of- the owner bound 
 by the judgment, but this will not affect 
 the rights of the city to use of the rooms 
 contracted for, of which it had posses- 
 sion. Palestine v. Barnes, 50 Tex. 539. 
 
 As to duty of corporation where they 
 sell or farm out an exclusive privilege to 
 vend articles, to enforce ordinances de- 
 signed to protect the privilege. La Rosa 
 V. Mayor, 4 La. An. 24; Same v. Same, 1 
 lb. 126 ; Mayor, etc. v. Peyroux, 6 Martin 
 (La.), 155; Griffin v. Mayor, 6 Martin 
 (La.), 279. City corporation cannot agree 
 to abdicate its legislative powers in re- 
 lation to markets, nor contract to create 
 a monopoly. Gale v. Kalamazoo, 23 Mich. 
 344, 1871 ; ante, sec. 362. 
 
 1 Buffalo V. Webster, 10 Wend. (N. Y.) 
 100, 1833. Chief Justice Savage affirms, 
 arguendo, that such an ordinance would 
 be valid under the common law power of 
 corporations to make by-laws for the gen- 
 eral good of the corporation. lb. Ap- 
 proving Pierce v. Bartram, Cowp. 269 ; 
 following Bush v. Seabury, 8 Johns. (N. 
 Y.) 418, 1811, and distinguished from 
 Dunham v. Rochester, 5 Cow. (N. Y.) 
 462 ; Shelton v. Mobile, 30 Ala. 540, 1857. 
 " The fixing the place and times at which 
 markets shall be held and kept open," 
 says the Supreme Court of New York in 
 Bush V. Seabury, 8 Johns. (N. Y.) 418, 
 "and the prohibition to sell at other 
 places and times, are among the most 
 ordinary regulations of a city or town 
 police, and would naturally be included 
 in the general power to pass by-laws rel- 
 
§ 386,] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 389 
 
 the extent of power to establish and regulate markets, as will be 
 seen by the cases cited in the note.* 
 
 ative to the public markets. If the cor- 
 poration had not the power in question, 
 it is difficult to see what useful purpose 
 could be effected, or what object was in- 
 tended, by the grant of power to pass 
 laws ' relative to the public markets.' " 
 
 1 Power to make ordinances concern- 
 ing " markets, health, and good order " of 
 the town authorizes an ordinance pro- 
 hibiting the sale of butcher's meat within 
 the corporate limits, excepting at tlie 
 public market. Winsboro v. Smart, 11 
 Rich. {South Car.) Law, 551, 1858. It 
 seems the defendant was convicted, 
 though he sold the meat inside his own 
 blacksmith shop. Such ordinances are 
 sustained, says the court, on the ground 
 that tliey are not in restraint of trade, 
 but a proper regulation of it. lb. Leg- 
 islative power to a city " to erect market- 
 houses, establish markets and market- 
 places, and provide for the government 
 and regulation thereof," authorizes an 
 ordinance with a pecuniary penalty, pro- 
 viding that fresh beef shall not be sold in 
 the city less than by the quarter at any 
 other than the market-place during mar- 
 ket hours. Bowling Green u. Carson, 10 
 Bush (Ky.), 64, 1873. So, in the city of 
 St. Louis V. Jackson, 25 Mo. 37, 1857, 
 where it appeared that the city, under 
 proper authority, had erected a public, or 
 city, market-house, and that by its char- 
 ter it had power also, " to regulate," by or- 
 dinance, the sale of meats, it was held 
 that this gave the city authority to pro- 
 vide, by ordinance, that " no person, not 
 a lessee of a stall in the market, shall 
 sell, or offer for sale, meat in less quanti- 
 ties than one quarter." The court con- 
 sidered such an ordinance as reasonable, 
 highly proper, and not in restraint of 
 trade, and not embraced in tlie reasoning 
 in the case of Dunham v. Trustees of 
 Rochester, 5 Cow. (N. Y.) 462; s. p. see, 
 also, St. Louis v. Weber, 44 Mo. 547, 1869; 
 Le Claire v. Davenport, 1.S Iowa, 210; 
 Davenport v. Kelly, 7 Iowa, 102; Ash v. 
 People, 11 Mich. 347. But in Caldwell 
 V. Alton, 33 111. 416, 1864, where the city, 
 by its charter, had power " to establish and 
 regulate markets," and under the power 
 
 passed an ordinance forbidding, during 
 market hours, the sale of vegetables out- 
 side the limits of the market, it was held 
 that the city could not restrain a regular 
 dealer or merchant from vending vegeta- 
 bles at his place of business outside of 
 market limits during any part of the day. 
 such a restraint of trade being unreasonr 
 able. The court reviewed many of the 
 cases in other states on this subject, and 
 were of opinion that the power to regulate^ 
 could only extend to the market limits, 
 and that these limits could not, under 
 this power, be made to extend through- 
 out the city. The court adhered to its 
 views in a subsequent case in which i\ 
 was held that power " to erect market- 
 houses, establish markets and market- 
 places, and provide for the government 
 and regulation thereof," does not aur 
 thorize the council of a large and growing 
 town to fix upon one market-place, and' 
 prohibit all persons at all hours of the 
 day from selling fresh meats elsewhere. 
 Such an ordinance was regarded as un- 
 reasonable, in restraint - of trade, and 
 tending to create a monopoly. It was 
 admitted, however, that if the ordinance 
 bad fixed a reasonable number of hours 
 each day In which the prohibition should 
 operate, leaving persons free to sell out- 
 side of market hours, it would probably 
 be unobjectionable. Bloomington v. Wahl, 
 46 III. 489, 1868. So, in Bethune v. Hughes, 
 28 Ga. 660, 1859, the court, leaning against 
 exclusive privileges, held that power by 
 the charter to the corporation " to estab- 
 lish and keep up a public market in the 
 city for the sale of," etc., does not confer 
 upon the city power to pass an ordinance 
 prohibiting the sale of marketable articles 
 elsewhere than at the market-place. Dis- 
 tinguished, Baskins v. Robinson, 53 Ga, 
 613, 1875; s. p. St. Paul v. Laidler, i 
 Minn. 190, 1858 ; commented on and dis- 
 approved in St. Louis v. Weber, 44 Mo, 
 547. 1869; see St. Paul v. Coulter, 12 
 Minn. 41. Charter power to a city "to 
 establish public markets and other public 
 buildings, and make rules and regulations 
 for the government of the same, to ap^ 
 point suitable officers for overseeing and 
 
890 
 
 MUNICIPAL CORPORATIONS. 
 
 [cH. xn. 
 
 § 387. (320) In a well-considered case in Massachusetts it is 
 decided that a city corporation has the clear right to prohibit, by 
 ordinance, the occupation of a stand, for the vending of commodi- 
 ties, in the streets. It may thus prohibit not only its own inhabi- 
 tants, but others. It may make the prohibition absolute, or it 
 may make it conditional on obtaining license or permission. It 
 is in the nature of a police regulation, and does not violate pri- 
 vate rights or improperly restrain trade.^ 
 
 authority. " Regulation must of neces- 
 sity include the appropriation of one or 
 more parts of the market for one purpose, 
 and other part or parts for other purposes ; 
 of providing that free passage through the 
 market be kept open for ready access to 
 shops, stalls, or other places where differ- 
 ent commodities are exposed for sale. Pa- 
 Draper, C. J., in Kelly and the Corporation 
 of the City of Toronto, 23 Upper Can. Q. 
 B. 426." 
 
 A by-law enacting " that no butcher 
 or other person shall cut up or expose for 
 sale any fresh meat in any part of the 
 city except in the shops and stalls, in the 
 public markets, or at such places as the 
 Standing Committee on Public Markets 
 may appoint," was held good. lb. But 
 a by-law enacting " that no person should 
 expose for sale any meat, flsh, poultry, 
 eggs, butter, cheese, grain, hay, straw, 
 cord-wood, shingles, lumber, flour, wool, 
 meal, vegetables, or fruit (except wild 
 fruit), hides or skins, within the town, at 
 any place but the public market, without 
 having first paid the market fee thereon 
 as therein provided, except all hides and 
 skins from animals slaughtered by the 
 licensed butcher of the corporation, hold- 
 ing a stall in the market," was held bad. 
 Fennell and the Corporation of the Town 
 of Guelph, in re, 24 Upper Can. Q. B. 238. 
 Also, " that meat, fish, poullry, eggs, cheese, 
 grain, hay, straw, cord-wood, shingles, lum- 
 ber, flour, wool, meal, vegetables, or fruit 
 (except wild fruit), should not be exposed 
 for sale within the municipality, except in 
 the market, before 12 o'clock, noon," was 
 held bad as to the articles mentioned in 
 italics, lb. 
 
 1 Nightingale, in re, 11 Pick. (Mass.) 
 168, 1831. In this case the ordinance 
 of the city (Boston) provided "that no 
 inhabitant of the city of Boston, or of 
 any town in the vicinity thereof, not offer- 
 
 regulating such markets and to restrain 
 all persons from interrupting or inter- 
 fering with the due observance of such 
 rules and regulations," does not confer 
 upon its common council authority to 
 pass an ordinance prohibiting "every 
 farmer, gardener, or person producing 
 Tegetables " from selling the same in and 
 Uong its streets without first procuring 
 an annual license from the city authori- 
 ties, paying therefor into the city treas- 
 ury the sum of twenty-five dollars. St. 
 Paul V. Treager, 25 Minn. 248, 1878. The 
 nature of the power " to establish public 
 markets," etc., is very satisfactorily dis- 
 cussed in this case by Cornell, J. An 
 ordinance regulating the killing and bleed- 
 ing of meats is authorized by power to 
 regulate butchers, the place and mode of 
 selling, and to prevent unlicensed persons 
 from acting as butchers. City of Brook- 
 lyn V. Cleves, Hill & Denio (N. Y.), Suppl. 
 231, 1843. Under power to regulate the 
 vending of meats, a conviction under an 
 ordinance forbidding the sale of unwhole- 
 some meats and other provisions cannot 
 be sustained for selling putrid eggs. 
 Mayor, etc., of Rochester v. Rood, Hill & 
 Denio (N. Y.), SuppL 146. 
 
 By the Municipal Act of Canada the 
 council may pass by-laws " for establish- 
 ing and regulating all markets ; for pre- 
 venting or regulating the sale by retail in 
 the public streets of any meat, vegetables, 
 fruit, or beverages ; for regulating the 
 place and manner of selling and weighing 
 butcher's meat, fish, hay, straw, fodder, 
 wood, and lumber, etc. Harr. Munic. 
 Manual, 2d ed. p. 228. The following 
 cases, digested by Mr. Harrison, show the 
 judicial construction of the act. 
 
 The power under the act is to regu- 
 late all markets established, apparently 
 including those established by the Crown, 
 as well as those established by municipal 
 
390.1 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 391 
 
 § 388. (321) But authority to erect a market, and power *' to 
 regulate the general police," and " to preserve the peace and 
 good order of the city," do not authorize the corporation to im- 
 pose a tax for revenue purposes upon persons occupying market- 
 stands in the streets, or selling produce therein. Such a power 
 must be plainly conferred or it will not be held to exist.^ 
 
 § 389. (322) The right to regulate markets established by a 
 city under its charter is one of municipal police. The city au- 
 thorities may say what articles shall or shall not be sold at the 
 public markets, and may impose penalties on those who violate 
 their ordinances. They may for example, prohibit groceries and 
 oysters from being sold at the public markets, and require oys- 
 ters, which have a great tendency to putrefaction, to be sold at 
 certain designated stands, and prevent their being sold else- 
 where.^ 
 
 § 390. (323) Inspection Ordinances. — A municipal corpora- 
 tion, says Mr. Willcock, may regulate the manner of carrying on 
 
 ing for sale the produce of his own farm, 
 etc., should, without the permission of 
 the clerk of Faneuil Hall market, be suf- 
 fered to occupy any stand with cart, sleigh, 
 or otherwise, for the purpose of rending 
 commodities in either of the streets men- 
 tioned in the first section of this ordi- 
 nance," etc. It was objected against this 
 ordinance that it was void : 1. Because 
 it was partial, not operating upon all the 
 citizens of the state equally. 2. Because it 
 was uncertain, the term ''vicinity" be- 
 ing indefinite. And, 3. Because it was 
 in restraint of trade. But neither of these 
 objections was considered tenable. The 
 validity of such an ordinance was again 
 aftirriied by the same court in Common- 
 wealth o. Rice, 9 Met. (Mass.) 253, 1845. 
 See tills case also as to requisites in certain 
 respects of complaints for the violation 
 of such an ordinance, and as to what acts 
 will be deemed to be violations. See 
 supra, sec. 319, note ; Shelton v. Mayor, 
 etc., of Mobile, 30 Ala. 640, 1857 ; Wart- 
 man V. Philadelphia, 33 Pa. St. 202, 1854. 
 An ordinance forbade the sale of fresh 
 meats except by persons licensed, but 
 contained a proviso in favor of farmers, 
 authorizing them to sell meats, the pro- 
 duce of their oum farms. The evident 
 object was considered to be to protect 
 
 licensed butchers, and at the same time to 
 allow farmers to come in and sell the 
 produce of their own farms. It was held 
 that an unlicensed butcher was not a 
 "farmer " within the meaning of the pro- 
 viso, although the meats which he sold 
 came from sheep fattened on his farm, if 
 the farm was only a convenient append- 
 age to his business as a butcher. Roch- 
 ester a. Pettinger, 17 Wend. (N. Y.) 265, 
 1837 ; St. Paul «. Traeger, 25 Minn. 248, 
 1878, cited supra, sec. 886, note. 
 
 1 Kip V. Patterson, 2 Dutch. (N. J.) 
 298, 1857. This power, it was said, would 
 authorize "the renting of stalls in the 
 market-house, and perhaps of even pro- 
 hibiting sales in the public streets." lb. 
 per Elmer, 3. 
 
 2 Municipality v. Cutting, 4 La. An. 
 335, 1849 ; Morano v. Mayor, 2 La. An. 
 218, Power of city to vacate leases and 
 stalls in public market, under ordinance 
 reserving the right, see City Council v. 
 Goldsmith, 2 Speer's (South Car.) Law, 
 428. Occupant of city market failing to 
 pay rent in advance, according to con- 
 tract, held a tenant at will. Dubuque v. 
 Miller, 11 Iowa, 583. Control over teu- 
 ants. Woelpper v. Philadelphia, 38 Pa. 
 St. 203. 
 
392 
 
 MUNICIPAL CORPORATIONS. 
 
 [cH. xn. 
 
 trade within a municipality so far as to prevent monopolies or the 
 sale of unfit commodities, and to ensure proper conduct in those 
 who practise it within their jurisdiction.^ In general, it may be 
 said that incorporated cities and larger towns in this country 
 have conferred upon them the power to pass ordinances regulat- 
 ing, to a reasonable extent, the mode in which the traffic of the 
 place shall be conducted ; but they can exercise no powers in 
 tliis respect not conferred.^ Laws requiring articles to be in- 
 spected or weighed and measured Jbefore being sold are in the 
 nature of police regulations, and are valid in the absence of spe- 
 cial constitutional provisions. When reasonable in their nature, 
 they are not regarded as being in restraint of trade.^ 
 
 1 Willc. Corp. 142, pi. 332. 
 
 ' Nightingale, in re, 11 Pick. (Mass.) 
 168; Stokes v. New York, 14 Wend. (N. 
 y.) 87; Raleigh v. Sorrell, 1 Junes (North 
 Car.) Law, 49; Chicago v. Quimby, 38 
 111. 274, 1858; Howe v. Norris, 12 Alien 
 (Mass.), 82; Libbey u. Downey, 5 Allen 
 (Mass.), 299; Collins v. Louisville, 2 B. 
 Mon. (Ky.) 134, 1841. Power to appoint 
 measurers of wood, and affix a reasonable 
 allowance to them, does not justify the 
 imposition of a tax for revenue. lb. 
 
 3 Cooley Const. Lim. 696 ; Raleigh u. 
 Sorrell, supra ; Stokes v. New York, supra ; 
 Page V. Fazakerly, 36 Barb. (N. Y.) 392 ; 
 Mayor, etc. of New York v. Nichols, 4 
 Hill (N.Y.), 209, 1843; compare Mayor 
 V. Hyatt, 3 E. D. Smith (N. Y.), 156; 
 Rogers ■;. Jones, 1 Wend. (N. Y.) 237; 
 Yates I'. Milwaukee, 12 Wis. 752. The 
 system of inspection laws, and the hosts of 
 officers which they engendered, were con- 
 gidered by the constitutional convention 
 of New York to entail annoyances and 
 burdens upon the community sufficient to 
 outweigh any benefits resulting from 
 them; and the constitution of 1846 (art. 
 V. sec. 8) abolished all such offices and 
 forbade the legislature to re-create them, 
 in this language : " All offices for the 
 weighing, measuring, culling, or inspect- 
 ing of any merchandise, produce, manu- 
 facture, or commodity whatever, are here- 
 by abolished, and no such offices shall 
 hereafter be created^y law." See Tink- 
 ham r. Tapscott, 17 N. Y. 144, 147, 1858, 
 where the origin, scope, and purpose of 
 this provision are very satisfactorily dis- 
 cussed by Denio, 3. In Illinois it is held 
 
 'that inspection power conferred upon a 
 board of trade, to be exercised when re- 
 quested by its members, may co-exist 
 with like power in the city authorities to 
 be exercised in all cases when requested. 
 Chicago V. Quimby, 38 111. 274, 1858. 
 
 The following cases are referred to as 
 sliowing the solicitude of the law to pre- 
 serve the public health ; but in tliis coun- 
 try the power of municipal corporations 
 in this respect depends on their charters 
 or other legislative provision. 
 
 Knowingly to expose for sale in a pub- 
 lic market meat which is not fit for hu- 
 man food is indictable. Regina v. Steven- 
 son, 3 F. & F. 106 ; so knowingly taking 
 unfit meat to public market for sale. The 
 Queen v. Jarvis, lb. 108; but in either 
 event the knowledge of the unfitness of 
 the food is essential to the creation of the 
 offence. Regina v. Crawley, lb. 109. The 
 offence is a nuisance at conmion law. 
 Sliillito V. Thompson, L. R. 1 Q. B. Div. 
 12. Each single act of exposure of tainted 
 meat is a distinct offence. Hartley, tn re, 
 31 L, J. M. C. 232. A salesman who 
 sells in a public market meat which is 
 afterwards found to be unfit for human 
 food, but which he has no means of know- 
 ing or reason to suspect was other than 
 good and wholesome meat, is not liable 
 to an action upon an implied warranty or 
 for money had and received. Emmerton 
 V. Mathews, 7 H. & N. 586 ; but a person 
 who sends animals destined for human 
 food to a public market for sale, impliedly 
 represents that they are, so far as he 
 knows, not infected with any contagious 
 disease dangerous to life or health. 
 
§ 393.] MUNICIPAL OKDINANCES OR BY-LAWS. 393 
 
 § 891. {324) Power to a city " to regulate the public market, 
 and to pass such other ordinances as shall seem meet for the im- 
 provement and good government of the city," authorizes an ordi- 
 nance requiring oats, hay, etc., to be weighed by the public 
 weighmaster before being offered for sale, and imposing a penalty 
 for its violation.^ 
 
 § 392. (325) A grant to the common council of " all powers, 
 rights, etc., incident to municipal corporations and necessary to 
 the proper government of the same," might authorize a city to 
 prevent the sale of bread made out of unwholesome flour, and, 
 as a consequence, to provide for its inspection, but it would not 
 give the power to regulate the assize, that is, the weight and price 
 of bread, for the latter is a power not absolutely necessary for the 
 proper government of a city. Power, however, to a city, " to 
 regulate everything which relates to bakers," does authorize an 
 ordinance regulating the weight, size, and, it seems, the price, of 
 bread, and the forfeiture of bread illegally baked ; and such an 
 ordinance, it has been held, is not in violation of any provision 
 of the constitution of Louisiana? 
 
 § 393. (326) Police Regulations respecting the Public Peace 
 and Safety. — Our city governments usually possess the power, 
 either by express grant or by virtue of their authority, to make 
 by-laws relating to the public safety and good order of the inhab- 
 itants, to regulate the rate of speed of travel in the public streets ; 
 the route or streets over which omnibuses, stage-coaches, drays, 
 etc., may run; the time of day in which the streets may be 
 
 1 Raleigh v. Sorrell, 1 Jones (North ing every person selling meat or articles 
 
 Car.) Law, 49, 1853; approving Nightin- of provision by retail, whether by weight, 
 
 gale's Case, 11 Pick. (Mass.) 168 ; Stokes count, or measure, should provide himself 
 
 B. Corporation of New York, 14 Wend, with scales, weiglits, and measures, but 
 
 (N. Y.) 87. This power was also held to thatnospringbalance, spring scale, spring 
 
 authorize the creation of the office of steelyards, or spring weighing machine 
 
 weighmaster and the payment of his sal- should be used for any market purpose, 
 
 ary. 1 Jones, 49, supra. Construction of was held valid. Snell and Belleville, in re, 
 
 ordinance as to weighing hay on public 30 Upper Can. Q. B. 81. 
 
 scales. Goss «. Corporation, etc., 4 Sneed ^ Guillotte v. New Orleans, 12 La. An. 
 
 (Tenn.), 62 ; Yates i>. Milwaukee, 12 Wis. 432, 1857 ; Page v. Fazakerly, 36 Barb. 
 
 752. Construction of statute as to mode (N. Y.) 392. But as to forfeiture, qucere, 
 
 of measuring grain. Frazier ». Warfield, in absence of express power, and see 
 
 18. Md. 279. Of ordinance as to survey Phillips v. Allen, 41 Pa. St. 481; Mayor, 
 
 of lumber before sale. Briggs v. Boat, 7 etc. of Mobile v. Yuille, 3 Ala. 139. 
 Allen (Mass.), 287. An ordinance requir- 
 
894 
 
 MUKICIPAL COKPOEATIONS. 
 
 [cH. xn. 
 
 used for certain purposes ; to interdict stoppages in tlie street to 
 the delay of others ; to exclude vehicles of all kinds from enter- 
 ing upon or passing over the sidewalks, etc., etc. The public 
 safety and convenience may require regulations of this character ; 
 but they must not, unless made by virtue of specific authority, 
 be unreasonable or improperly in restraint of trade.^ Power to 
 make by-laws for " the good rule and government " of the 
 
 1 Commonwealth v. Stodder, 2 Cush. 
 (Mass.) 662, 1848, where the subject of 
 the power of cities over streets, partic- 
 ularly in reference to omnibuses, is fully 
 considered by Mr. Justice Dewey ; Com- 
 monwealth V. Robertson, 5 Cush. (Mass.) 
 438, 1850, as to stoppages in streets con- 
 trary to ordinance ; Baiter v. City of 
 Boston, 12 Pick. (Mass.) 184, 1831; Van- 
 derbilt v. Adams, 7 Cow. (N. Y.) 349; 76. 
 385; Austin v. Murray, 16 Pick. (Mass.) 
 126. Power to a city " to regulate the 
 running of railroad cars " authorizes the 
 adoption of an ordinance prohibiting 
 the propulsion of cars by steam within 
 the corporate limits. Railroad Co. v. 
 Buffalo, 5 Hill (N. Y.), 209, 1843. 
 
 Power to the city of Richmond to 
 make "ordinances, not contrary to the 
 constitution and laws of the state, as 
 shall be thought necessary for the good 
 ordering and government " of its inhab- 
 itants, was considered by the Supreme 
 Court of the United States to imply the 
 power to ordain and establish suitable 
 police regulations, and that includes the 
 power to prohibit the use of locomotive 
 engines propelled by steam on the public 
 streets, when such action does not inter- 
 fere with any vested rights; and legis- 
 tive authority to a specified railway 
 company to construct its road "from 
 some point within the corporation of 
 Richmond to be approved by the com- 
 mon council," does not give it a vested 
 right to the use of a particular street free 
 from municipal control, when the city, in 
 consenting to such use, reserved its char- 
 tered powers in that behalf. Richmond, 
 etc. Railroad Co. v. Richmond, 96 U. S. 
 521, 1877. Special charter construed to au- 
 thorize an ordinance for filling a street, 
 although it is covered by a plank road 
 laid under special legislative authority. 
 State V. Jersey City, 2 Dutch. (N. J.) 444 ; 
 
 P9ft, chapt^ on Streets, sec. 713. In 
 Napman v. People, 19 Mich. 352, 1869, a 
 lawful arrangement between a railroad 
 company and an omnibus company as 
 to the delivery of passengers was held to 
 be beyond municipal interference. 
 
 A by-law prohibiting rapid driving in 
 the streets of a city by carters and oth- 
 ers is not in restraint of trade, and is 
 reasonable and valid; and in a prosecu- 
 tion for its violation, it is not necessary 
 to prove that any individual was actually 
 endangered by the fast driving. As the 
 mayor and aldermen have no authority 
 to give a person permission to violate an 
 ordinance, evidence of such permission, 
 as well as evidence of the defendant's 
 general character as a careful driver, is 
 inadmissible. Commonwealth ». Wor- 
 cester, 3 Pick. (Mass.) 462, 1826 ; Com- 
 monwealth V. Stodder, 2 Cush. (Mass.) 
 562, 570, 1848 ; Washington v. Nashville, 
 1 Swan (Tenn.), 177. Commented on. 
 McBean v. Chandler, 9 Heisk. (Tenn.) 
 349, 1872; post, chapter on Streets, sec 
 713. Where an intent to injure is not made 
 an essential ingredient of the offence of 
 rapid driving under the ordinance the 
 intent necessary to a criminal assault and 
 battery is not supplied by a mere intent 
 to violate the ordinance. Commonwealth 
 V. Adams, 114 Mass. 323 ; s. c. 19 Am. 
 Bep. 362. 
 
 There is no obligation, in the absence 
 of a valid municipal by-law or statute, 
 on the part of people to keep roofs clear oj 
 snow, or to detain the snow so that it can- 
 not slide into the street, though there 
 may be, it seems, such a faulty construc- 
 tion of roof as, on proof thereof, would 
 involve a liabiUty on the part of the 
 owner or occupier for accidents. Lazarus 
 V. Toronto, 19 Upper Can. Q B. 13, per 
 Bobinson, C. J. See post, ch. xxiii. 
 
§ 395-3 MUNICIPAL ORDINANCES OE BI-LAWS. 395 
 
 borough (ante, sec. 387), has reference to the government of the 
 borough as a corporation, and the making of regulations for carry- 
 ing into effect the purposes for which it was incorporated. (^Post, 
 sec. 408.) General powers of this character, without more, 
 do not enable a town council to carry out any unreasonable ideas 
 of general good government, and to impose penalties for the doing 
 of things which are not prohibited by any public statute, nor by 
 the common law.^ 
 
 § 394. (327) Under a general power to make " needful and 
 salutary by-laws," a city ordinance of Boston, requiring the ten- 
 ant or occupant, or, in case there shall be no tenant, the owners 
 of buildings bordering on certain streets, to dear the snow from 
 the sidewalks adjoining their respective buildings, is reasonable 
 and valid. It was objected against this ordinance that it violated 
 the fundamental maxim, that all burdens and taxes laid upon the 
 people for the public good shall be equal. The objection was 
 overruled. And it was justly regarded by the court as in the 
 nature of a police regulation, requiring a duty to be performed 
 highly salutary and advantageous to the citizens of a populous 
 and closely built city, and imposed upon the persons named be- 
 cause they are so situated that they can promptly and conve- 
 niently perform it ; and it is laid not upon a few, but upon a 
 numerous class, and equally upon all who are within the descrip- 
 tion composing the class and who commonly derive a peculiar 
 benefit from the duty required. It would doubtless be otherwise 
 if the ordinance arbitrarily imposed this duty upon the mechanics 
 or merchants, or any other class of citizens between whose con- 
 venience and the labor required there is no natural relation.^ 
 
 § 395. (328.) The power to make " salutary by-laws," with 
 respect to the use of streets, will, it seems, authorize a city to 
 pass by-laws regulating the removal of buildings and the tempo- 
 rary use of the streets and highways for that purpose.^ 
 
 ' Addison on Torts, 34 ; Rex v. West- In lUinois it is held that a city has no 
 
 wood, 4 B. & C. 781 ; Reg. a. Wood, 5 power by ordinance to compel an abutter, 
 
 Ell. & Bl. 65; post, sec. 408. under penalty, to remove the snow from 
 
 " Goddard, in re, 16 Pick. (Mass.) 504, the sidewalk within a certain time. He 
 1835 ; Union Railway Co. v. Cambridge, has no more interest in such removal than 
 11 Allen (Mass.), 287; Kirby v. Boylston any other citizen. Gridley ». Blooming- 
 Market Assoc, 14 Gray (Mass.), 252; ton, 88 111, 554. 
 post, ch. xxiii, note and cases cited. ° Day v. Green, 4 Cush. (Mass.) 483, 
 
396 MUNICIPAL CORPORATIONS. [CH. XIL 
 
 § 396. (329) Ordinances under Police Power and General 
 Welfare Clause. — Other illustrations of what a municipal cor- 
 poration may do under the general welfare clause in its organic 
 act, or under its police power or its implied right to pass by-laws, 
 or under a general grant of authority for that purpose, may be 
 here given. • 
 
 Under authority " to ordain and publish such acts, laws, and 
 regulations, not inconsistent with the constitution and laws of 
 the state as shall be needful to the ^ood order of the city," it can, 
 says Howard, J., " subject to these restrictions and certain statute 
 regulations, 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." ^ 
 
 § 397. (330) Power to pass such ordinances "to maintain 
 the peace, good government, and order of the city, and the trade, 
 commerce, and manufactures thereof, as the council may deem 
 expedient, not repugnant to the constitution and laws of the 
 
 437, per Shaw, C. J. And where such a grants of power has the general author- 
 by-law prohibits the moving without a ity to so regulate the use and enjoyment 
 license granted by the mayor and alder- of private property in the city as to pre- 
 men, a license granted by the mayor is vent its proving pernicious to the citizens 
 void, even though the board of aldermen, generally, and may, when the use to which 
 by a vote, had previously undertaken to the owner devotes his property becomes a 
 delegate the power to grant such license nuisance, compel him to cease so to use it, 
 to the mayor alone. The bj'-law con- and punish him for refusing to obey its 
 templates that the mayor and aldermen ordinances and regulations concerning 
 should act unitedly as one body. lb. such use. Louisville City Railway Co, 
 
 1 Per Howard, J., State v. Merrill, 37 v. Louisville, 8 Bush (Ky.), 415, 1871. 
 Me. (2 Heatli) 229, 1853. Such would un- The statute of California, authorizing 
 
 doubtedly be the proper construction if supervisors of San Francisco "to make 
 
 this were the only power given to the city all regulations which may be necessary 
 
 to pass ordinances or by-laws. It should or expedient for the preservation of the 
 
 then be somewhat liberally construed, public liealth," is within the constitutional 
 
 But if such a general grant is given in power of the legislature to enact; and 
 
 connection with, or at the end of, a long under it the supervisors may pass an ordi- 
 
 llst of specific powers, perhaps so ex- nance against feeding cows on distillery 
 
 tended a construction might not then he slops, and vending the milk of cows thus 
 
 due to it. Tlie power conferred by gen- fed. Johnson ». Simonton, 43 Cal. 242, 
 
 eral welfare clause is restricted by refer- 1872 ; ante, sees. 141, 144, 369, 374, 379. 
 ence to otiier provisions of the charter or A common council lias power to adopt 
 
 constituent act. City Council v. Plank a penal ordinance requiring auctioneer to 
 
 Road Co., 31 Ala. 76, 1857 ; Mount Pleas- procure license from the city. This power 
 
 ant ». Breeze, 11 Iowa, 399, 400, 1860, per is in the nature of a police regulation. 
 
 Wright, J. Goshen v. Kern, 63 Ind. 468. See fui^ 
 
 , A city government under the usual ther. Index, title License. 
 
§ 399.]. MUNICIPAL ORDINANCES OR BY-LAWS. 397 
 
 state, " authorizes an ordinance prohibiting the keeping open of 
 stores, shops, and places of business on Sunday, if its provisions 
 do not conflict with state legislation.^ But the general welfare 
 clause does not authorize a city to construct, or aid in construct- 
 ing, a plank road or toll bridge built by a private company beyond 
 the corporate limits of the city.^ 
 
 § 398. (331) The general welfare clause to pass ordinances 
 for the good government, etc., of the corporation, does not au- 
 thorize an ordinance requiring the proprietor of a theatre, circus, 
 or other exhibition licensed by the corporation to pay a peace or 
 police officer of the place two dollars, or any sum, for each night's 
 attendance upon such place for the purpose of enforcing order. 
 Such an ordinance is unreasonable, and can only be passed when 
 clearly authorized.* 
 
 399. (332) Where a city corporation is authorized " to or- 
 dain such laws not inconsistent with the constitution and laws of 
 the state as shall be needful to the good order of the city," it may 
 pass an ordinance imposing a penalty upon any person who shall 
 
 1 St. Louis V. CafEerata, 24 Mo. 94, a similar decision was made at nisi prim 
 
 1856 ; see State v. Covpan, 29 lb. 330 ; State by Mr. Justice Martin. And in tiiis last 
 
 V. Ams (constitutionality of Sunday laws case it was further ruled, that power in 
 
 affirmed), 20 Mo. 214; s. p. Frolichstein the charter to "establish such by-laws as 
 
 V. Mobile, 40 Ala. 725, 1867 ; Hudson v. may tend to the quiet, peace, safety, and 
 
 Geary, 4 Ilh. Is. 485, 1857 ; Specht i-. Com- good order of the inhabitants," authorized 
 
 monwealtli, 8 Fa. St. 812; Cincinnati v. the passage of such an ordinance. Under 
 
 Kice, 15 Oliio, 225; Karwisch y. Atlanta, "full power to pass such ordinances as the 
 
 44 Ga. 204. 1871. In the case of the City city council shall deem expedient for the 
 
 Council V. Benjamin, 2 Strob. (So. Car.) government of the city, not contrary to 
 
 Law, 508, 1846, it was decided by the tlie constitution of the state or the United 
 
 Court of Appeals of South Carolina that States," a city may prohibit, within its 
 
 an ordinance of the city of Charleston, limits, the sale of liquor on Sunday, 
 
 prohibiting "public exposures for sales, Megowan u. Commonwealth, 2 Met. (Ky.) 
 
 or sales of merchandise, on Sunday," was 3, 1859 ; State v, Welch, 36 Conn. 215, 
 
 not a violation of that section of tlie state 1869. In Shreveport (city of) v. Levy, 
 
 constitution which declares that "tlie free 26 La. An. 671, 1874; s. o. 21 Am. Rep. 
 
 exercise and enjoyment of religious pro- 553, an ordinance forbidding the sale of 
 
 fession or worship, without discrimination goods on Sunday, but excepting those per- 
 
 or preference, shall forever hereafter be sons keeping their places closed on Satur- 
 
 allowed within this stats to all mankind." day was held to be unconstitutional as 
 
 In that case the defendant wasa Jew, and giving to .Tews a privilege denied to others, 
 the city was not denied to be possessed of * City Council v. Flank Road Co., 31 
 
 all the power on the subject which the Ala. 76, 1857 ; ante, sec. 161. 
 legislature could constitutionally bestow. * Waters v. Leech, 8 Ark. 110, 1840; 
 
 In the case of Columbia v. Duke and supra, sec. 819; post, sec. 663. 
 Marks, cited 2 Strob. 530, and approved. 
 
398 MUNICIPAL COEPOKATIONS. [CH. XIL 
 
 mutilate or destroy any ornamental tree planted in the streets, 
 lanes, or other public places within the limits of the city." Such 
 an ordinance is not inconsistent with a state law punishing the 
 malicious or wanton destruction of trees growing for ornament or 
 use. Under the ordinance it is not necessary to allege or prove 
 that the mutilation was malicious or wanton, and it would seem 
 to be considered that it was no defence that the tree alleged to be 
 mutilated was upon the street in front of the lot of the accused, 
 who owned, subject to the public eaeement, ad medium filum vice.^ 
 
 § 400. (333) Under a general power to pass " any other by- 
 laws for the well-being of the city," its council may, bj' ordi- 
 nance, prohibit saloons, restaurants, and other places of public 
 entertainment, to be kept open after ten o'clock at night. The 
 objections that such a by-law was unreasonable, and deprived the 
 citizen of the constitutional right of "acquiring property," were 
 not considered to be well taken. It regulates, but does not de- 
 prive the party of his rights.^ 
 
 § 401. (334) Power " to regulate the police of the city," and 
 to pass ordinances not inconsistent with law, authorizes an ordi- 
 nance for arresting and fining vagrants, although, by the general 
 law of the state, vagrants may be proceeded against before a 
 justice of the peace, the court considering that this did not forbid 
 the corporation from making a local regulation on the same subject 
 not in conflict with the general law.* 
 
 > State V. Merrill, 37 Me. (2 Heath) " It is an unavoidable consequence of city 
 
 329, 1853. Contra, as to right of adjoin- ordinances, that they in some degree in- 
 
 ing owner. Lancaster v. Ricliardson, 4 terfere with tlie unlimited exercise of 
 
 Lansing (N. Y.), 136, 1871 ; see post, sec. private rights." Per Belt, J., in State v. 
 
 663, note. The case in Maine is a quite Freeman, 38 N. H. 428 ; State v. Welch, 
 
 liberal construction of the words good 36 Conn. 215, 1869. In further support 
 
 order. But it is necessary that cities of text. I'latteville v. Bell, 43 Wis. 488, 
 
 slioald have such an authority, and the 1878. 
 
 power to pass the ordinance could, per- » St. Louis v. Bentz, 11 Mo. 61, 1857 ; 
 haps, be sustained as incidental to the distlnguishedfrom Jefferson City o. Court- 
 power of the city over its streets and mire, 9 lb. 683, which was a summary 
 public places. Post, chapter on Streets, proceeding for an indictable offence. See 
 Further as to shade trees. Post, sec. 663, State •-. Cowan, 29 Mo. 330 ; Byers v. 
 note. Commonwealth, 42 Pa. St. 89, per Strong, 
 
 2 The State v. Freeman, 38 N. H. 426, J. ; Shafer v. Mumma, 17 Md. 331, 1861 ; 
 
 1859 ; following and approving on tliis supra, sec. 440 ; post, sec. 427, note, 
 point. State v. Clark, 8 Fost. (28 N. H.) A statute by which " two or more over- 
 
 176 ; Morris v. Rome, 10 Ga. 532, 1851 ; seers of the town " were authorized to 
 
 Hudson 0. Geary, 4 Rho. Is. 485, 1857. commit to the workhouse until discharged 
 
§ 404.] 
 
 MUNICIPAL ORDINANCES OK BY-LAWS. 
 
 399 
 
 § 402. (335) By virtue of its police power a municipal cor- 
 poration may pass an ordinance imposing a fine upon the owner 
 of any animal found estray or at large within the limits of the 
 corporation.^ 
 
 § 403. (336) If a municipal corporation has, by its charter, 
 power to pass ordinances to preserve the peace and good order of 
 the place, this gives it authority to provide for the punishment, in 
 the manner allowed by its charter, of persons who shall rescue, or 
 attempt to rescue prisoners from the custody of municipal ofScers.^ 
 But the general power, though expressly conferred, to enact by- 
 laws for the good government of the town, does not confer the 
 power to levy taxes of any kind, not even upon retailers of ardent 
 spu'its.* 
 
 § 404. (337) General Welfare Clause continued. — The gen- 
 eral welfare clause, in a charter empowering the city council to 
 
 by law, by writing under their hands, to 
 be there employed and governed accord- 
 ing to the rules and orders of the house," 
 etc., " all persons, able of body to work, 
 and not having estate or means other- 
 wise to maintain themselves, who refuse 
 or neglect to do so, live a dissolute, va- 
 grant life, and exercise no ordinary call- 
 ing or lawful business sufficient to gain 
 an honest livelihood," does not violate 
 the constitutional right to " life and lib- 
 erty," or the right, in " criminal proceed- 
 ings, to be heard by counsel, confronted 
 with witnesses," etc. The court did not 
 regard it as a criminal proceeding, but as 
 a reformatory or correctional one, so far 
 as the person proceeded against was con- 
 cerned, and designed to protect the com- 
 munity from becoming chargeable with 
 the person's support. Adeline Nott's 
 Case, 11 Me. 208, 1834; s. p. Portland 
 V. Bangor, 42 Me. 403, 1856, Rice, J., 
 dissenting. It is now admitted by the 
 Supreme Court oi Maine that this statute 
 is in conflict with the 14th amendment of 
 the constitution, " That no state shall 
 deprive any person of life, liberli/,'' etc., 
 " without due process of law," and that 
 Nott's case and Portland ». Bangor, su/ira, 
 are no longer the law. Now there can be 
 no restraint of liberty without first hav- 
 ing a judicial investigation of tlie charge. 
 Portland v. Bangor, 65 Me. 120, 1876 ; s. 
 
 c. 20 Am. Rep. 681. See Byers v. Com- 
 monwealth, 42 Pa. St. 89 ; post, sec. 427, 
 note ; sec. 433. In a late case in Illinois, 
 tlie Supreme Court of that state decided 
 that the act creating the Reform School 
 was unconstitutional, and that the act, so 
 far as it restrained liberty for any cause 
 except actual crime, was in violation of 
 the Bill of Rights. People v. Turner, 10 
 Am. Law Reg. (N. S.) 366, and approving 
 note of Judge [iedfield; s. c. 55 111. 280; 
 People V. Weisenbach (power to bind out 
 children), 60 N. Y. 385. 
 
 1 Municipality v. Blanc, 1 La. An. 385, 
 1846 ; Case v. Hall, 21 111, 632 ; Common- 
 wealth V. Bean, 14 Gray (Mass.), 52; 
 Commonwealth v. Curtis, 9 Allen (Mass.), 
 266 ; Roberts o. Ogle, 30 III. 459 ; McKee 
 V. McKee, 8 B. Mon. (Ky.) 433, 1848; 
 Waco V. Powell (hogs at large), 32 Texas, 
 258, 1869; ante, sec. 321, note; supra, sec. 
 348. Construction of ordinance prohib- 
 iting the suffering of animals to run at 
 large, and what must be shown to subject 
 a person to liability under such an ordi- 
 nance. CoUinsville v. Scanland, III. Sup. 
 Court, 1872 ; Knider v. Gillespie, 63 111. 
 88, 1872. 
 
 '^ Independence v. Moore, 32 Mo. 892, 
 1862. 
 
 ' Comrars. of Ashville v. Means, 7 Ire. 
 (N. C. Law) 406, 1847 ; Burnett, in re, 30 
 Ala. 461, 1857 ; post, ch. xix. 
 
400 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. XII. 
 
 pass such other ordinances as appear necessary for the security of 
 the city, authorizes an ordinance regulating the mode of keeping 
 and the sale oi gunpowder within the limits of the corporation, such 
 as requiring all gunpowder brought into the city to be conveyed 
 to the public magazine of the city, except when it is to be retailed, 
 and then to be kept in limited quantities and in secure canisters. 
 And it was so held, notwithstanding the point was made in argu- 
 ment that the general welfare clause in the charter could not 
 enlarge the powers of the corporation further than is necessary 
 to carry into effect the specific grants of power.^ 
 
 § 405. (338) Municipal corporations, general, with power to 
 provide for the safety of their inhabitants, may prohibit the 
 throwing of heavy or dangerous articles from the upper stories 
 of buildings into the streets or open spaces near them, where 
 persons are in the habit of passing; and may, where this is con- 
 sistent with the general and special legislation applicable to the 
 municipalitj'^, establish fire limits, and prevent erection therein of 
 wooden buildings.^ 
 
 1 Williams V. Augusta, 4 Ga. 509, 
 1848; Frederick «. Augusta, 4 lb. 561, 
 where the charter of Augusta is more 
 fully given. 
 
 2 City Council v. Elford, 1 McMullen 
 (South Car.). Law, 234. 1841; Brady u. 
 Insurance Company, 11 Midi. 425 ; Doug- 
 las V. Commonwealth, 2 Rawie (Pa.), 
 262; Wadleigh v. Oilman, 12 Me. 403; 
 Vanderbilt v. Adams, 7 Cow. (N. Y.) 
 349, 352, per Woodruff, J., arguendo. In 
 Pye V. Peterson, 45 Tex. 312, 1876 ; 8. 
 c. 23 Am. Rep. 608, the conclusion was 
 reached in view of the legislation of the 
 state that a general grant of power to a 
 city, " to ordain such ordinances, not in- , 
 consistent with the laws of the state, as 
 shall be needful for the government, inter- 
 ests, welfare, and good order of the cor- 
 poration," did not authorize the city to 
 establish fire limits and to prevent the 
 erection of wooden buildings within such 
 limits. The text is referred to and it is 
 admitted that it is supported by Wad- 
 leigh V. Gilman, and on the other hand, 
 the Mayor of Hudson v. Thome is con- 
 sidered as opposed to it. Of course the 
 question in each case must be decided in 
 view of all the legislation of the state 
 
 bearing upon it. The text in this edition 
 has been slightly modified. TJie preven- 
 tion of fires in towns and cities is pecu- 
 liarly a matter for local regulation and is 
 universally so regarded. Ante, sees. 141, 
 143. It belongs to the ordinary police 
 powers of a city, and unless such a course 
 is inconsistent with the legislation of the 
 state touching the subject (as Mr. Jus- 
 tice Gould sliows it to have been in 
 l^exas), it seems to us to be presump- 
 tively authorized by a general grant of 
 power to provide for the safety and 
 welfare of the inhabitants. 
 
 A court of equity will not enjoin the 
 erection of a wooden building witliin the 
 fire limits although such erection is for- 
 bidden by ordinance. St. Johns (village 
 of) V. McFarlan, 33 Mich. 72, 1875 ; s. c. 
 20 Am. T!ep. 671. Marston, J. says : " A 
 court of chancery has no jurisdiction to 
 restrain the threatened violation of a 
 village ordinance, unless the act threat- 
 ened to be done, if carried out will be a 
 nuisance. ... If a proper ordinance was 
 framed with an appropriate penalty, we 
 think the remedy at law would be found 
 adequate." Equity will not enjoin at the 
 instance of the municipality itself, even 
 
§ 406.] 
 
 MUNICIPAL ORDINANCES OR BY-LAWS. 
 
 401 
 
 § 406. (339) Under authority to make police regulations, or 
 to pass by-laws for the good rule and government of the corpora- 
 
 where the ordinance directs such a suit to 
 be brought agaiust any person about to 
 erect a wooden building contrary to its 
 provisions. Waupun v. Moore, 34 Wis. 
 450, 1874 ; s. o. 17 Am. Rep. 446. Lgon, 
 J., says that "equity will not lend its 
 aid to enforce by iiyunction the by-laws 
 or ordinances of a municipal corporation, 
 restraining an act, unless the act is shown 
 to be a nuisance per se. High on Injunc. 
 sec. 788; Mayor, etc. a.Thorne, 7 Paige, 
 261 ; Phillips v. Allen, 41 Pa. St. 481." 
 
 In Massachusetts, on the other hand, 
 a city or town is held entitled to main- 
 tain a bill in equity to prevent the carry- 
 ing on of trades or occupations therein 
 which are intrinsically nuisances, con- 
 trary to the regulations which the town 
 or city, by delegated authority from the 
 legislature, is authorized to make. Win- 
 throp V. Farrar (offensive trade), 11 Allen 
 (Mass.), 398. So where a statute pro- 
 hibited the use in cities and towns of a 
 specified size, of any building not then so 
 in use, for carrying on the business of 
 " slaughtering cattle," etc., without the 
 permission of the municipal or town 
 authorities, it was held that act was con- 
 stitutional as an exercise of the police 
 power, and that the town or city miglit, 
 in the corporate name, file a bill in equity 
 to restrain the use of a building therein 
 for the prohibited purpose where the 
 required consent of the local authorities 
 had not been obtained. Watertown v. 
 Mayo, 109 Mass. 305, 1872 ; s. c. 12 Am. 
 Rep. 694. No solid reason, in the au- 
 thor's judgment, exists, why, in proper 
 cases, a municipal corporation may not 
 resort to a court of equity to aid it in 
 enforcing its public duties to preserve 
 the health and property of the inhabi- 
 tants ; and by proper cases is meant those 
 which fall within some recognized head 
 of equity jurisdiction. 
 
 In Connecticut, where the city charter 
 authorized the common council of a city 
 to make ordinances to protect a city from 
 fire, and to establish districts within 
 which it should not be lawful without a 
 license to erect, enlarge, or place any 
 wooden building, the council passed an 
 ordinance establishing a fire district and 
 
 VOL. I.. 26 
 
 forbidding the erection or placing of any 
 wooden building therein, without license 
 given by the board of aldermen, declaring 
 that such building should be deemed a 
 common nuisance, and making it the 
 duty of certain officers after reasonable 
 notice, to abate it, and it was held that 
 the ordinance was fully authorized by the 
 charter and was reasonable. Hine v. 
 New Haven, 40 Conn. 478, 1873. In the 
 case of a building erected without license 
 within the fire limits of a city in violation 
 of such an ordinance, it is not sufficient 
 reason for the interference of a court of 
 equity by injunction at the instance of the 
 owner that he had obtained the consent 
 individually of a majority of the alder- 
 men, notice being given him that the 
 board when in session might refuse its 
 assent, as it afterwards did ; nor that he 
 had, after placing the building, covered 
 it with a sheathing of iron and tinned the 
 roof, before proceedings were instituted 
 against him, and had by further work 
 upon it during the pendency of the pro- 
 ceedings made it substantially fire proof. 
 The city authorities were considered by 
 the court to be the proper judges as to 
 how far these facts should affect their 
 action. The court expressed the further 
 view that the prompt enforcement of an 
 ordinance establishing fire limits in a 
 city is important to the public safety, 
 and a court of equity ought not to inter- 
 fere, in a case like that before the court, 
 by injunction to prevent such enforce- 
 ment, but leave the party aggrieved to 
 his legal remedy, if he is entitled to any 
 remedy. Nor was it a reason for the in- 
 terference of chancery that the building 
 erected in such fire limits has become 
 real estate, since it has become so by the 
 unlawful act of the owner, and is such 
 only in the most technical sense, and the 
 value of the building can be easily ascer- 
 tained and proved. 75. 
 
 Where the ordinance passed under the 
 authority above referred to provided that 
 no person shall build or enlarge any 
 building within the fire limits, without a 
 license first issued by the fire marshal, 
 for which a license fee of fifty cents was re- 
 quired to be paid, it was held that the 
 
402 
 
 MUNICIPAL COKPOEATIONS. 
 
 [cH. xn. 
 
 tion, it has the power to require hoistways inside of stores (usually 
 places of public resort) to be inclosed by a railing, and closed by 
 a trap-door after business hours each day. It was justly regarded 
 as a reasonable police regulation not unnecessarily interfering 
 with private rights.^ 
 
 § 407. (340) Power " to prevent disturbances and disorderly 
 assemblages, and maintain the good government of the city," 
 authorizes it to take measures to preserve the peace and to pro- 
 tect the lives and property of the citizens, and the acts of the 
 city in procuring a loan of arms and giving a bond for their re- 
 turn are valid and binding upon it.^ Authority to preserve the 
 
 license fee thus required was not a reve- 
 nue tax, in any proper sense, but rather a 
 reasonable sum collected of the party 
 interested for the purpose of defraying In 
 part the expense of issuing and recording 
 the license, and that the power to require 
 such a fee was conferred by the charter 
 by intendment, as convenient if not essen- 
 tial, to full enjoyment of the powers ex- 
 pressly granted. Welch v. Hotchkiss, 39 
 Conn. 140, 1872. 
 
 As to license fee, see ante, sees. 357, 358. 
 
 Instance of a want of power to restrict 
 erection of wooden buildings. Mayor, 
 etc. V. Thorne, 7 Paige, 261 ; Pye ». Peter^ 
 son, supra; Alexander v. Town Council, 
 64 Miss. 659; approving text. Cities 
 may constitutionally be authorized to 
 prevent the erection of wooden buildings in 
 certain portions thereof. Respubliea v. 
 Duquet, 2 Yeates (Pa.), 493. In Wad- 
 leigh V. Oilman, supra, it was decided that 
 the removal of a wooden building to the 
 prohibited district, or even from one part 
 of the district to another, was within the 
 meaning of the terra, erection, as used in 
 the ordinance. " The mischief," says 
 Weston, C. J., " did not consist in the act 
 of erecting, but in the continuance of the 
 erection. The ordinance did not meddle 
 with erections as they stood ; this would 
 have transcended their power." Differ- 
 ence between "erecting" and "repair- 
 ing." Brady v. Insurance Co., 11 Mich. 
 425, 449, opinion of CampheU, J. ; Brown 
 V. Hunn, 27 Conn. 332; Booth ». State, 4 
 Conn. 65; Tuttle v. State, lb. 68; Stewart 
 ». Commonwealth, 10 Watts (Pa.), 807. 
 Remedy against wrong-doer, by private 
 
 action in favor of an adjoining owner 
 specially injured by a violation of a stat- 
 ute in relation to the erection of wooden 
 buildings. Aldrich v. Howard, 7 B. I. 
 199. See Index — Fire. Ante, sec. 109. 
 A municipal corporation has inherent 
 power, independent of legislative grant, to 
 forbid the erection, and compel the re- 
 moval of buildings formed of combustible 
 materials, within the densely built up 
 parts of a town. Monroe v. Hoffman, 29 
 La. An. 651. 
 
 1 Mayor, etc. of New York v. Wil- 
 liams, 15 N. Y. 502, 1859. Johnson, J., 
 observes: "The danger is not confined 
 to the owner and ordinary occupants of 
 the building. The ordinance, in that re- 
 spect, stands on the same footing as a 
 regulation prohibiting a well or cistern in 
 a man's yard unprotected by curb or cover, 
 the reasonableness of which could not be 
 doubted. In case of fire, these openings 
 would tend directly and powerfully to 
 allow the fire to extend through all parts 
 of the building, and if left uncovered, 
 would also tend to endanger those whom 
 duty might require to enter to effect the 
 extinguishment of the fire." Paige, J., 
 considered the ordinance the same in 
 principle as fire laws, prescribing the 
 height, thickness of walls, and materials 
 of building within the city. 
 
 2 State i>. Buffalo, 2 Hill (N. Y.), 434, 
 1842; New Orleans v. Costello, 14 La. 
 An. 37. An ordinance against disorderly 
 conduct has no reference to a simple tres- 
 pass on a vacant lot, though committed 
 in an attempt to assert an adverse right 
 to the property. Mayor, etc. v. Barton, 
 
§ 408.] MUNICIPAL OKDINANCES OE BY-LAWS. 403 
 
 peace and quiet of the place authorizes an ordinance forbidding 
 " all disorderly/ shouting, dancing, etc., in the streets and public 
 places," though such conduct violates no existing state law.* 
 
 Mode of enforcing Ordinances. 
 
 § 408. (341) Civil Actions and Complaints. — In the old cor- 
 porations in England, by-laws were usually made in virtue of 
 their implied power; they did not extend to matters criminal in 
 their nature, and could only be enforced, unless by virtue of a 
 statute or valid custom, by fines or pecuniary penalties, com- 
 monly for a small sum, and always, or almost always, in a fixed 
 or certain amount.^ So, by the Municipal Corporations Act of 
 1835, the council are empowered to make such by-laws as to 
 them shall seem meet for the good rule and government of the 
 borough, and for the prevention and suppression of all such 
 nuisances as are not punishable by act of parliament in force in 
 the borough, and to appoint such fines as they shall deem neces- 
 sary for the prevention and suppression of such offences, with the 
 proviso that no fine shall exceed the sum of five pounds.^ The 
 act provides that prosecutions for a breach of by-laws made 
 under it shall be commenced within three months after the com- 
 mission of the offence ; that the charge shall be made on oath ; 
 that a summons shall issue and be served, with power to the 
 magistrate to proceed without the appearance of the defendant, 
 or to issue a warrant for his arrest ; that, if convicted, the penalty 
 shall be paid either immediately or within such period as the 
 magistrate shall think fit ; that it may be levied by distress and 
 sale of the goods and chattels of the offender, and for want of 
 sufficient distress the offender may be imprisoned for a term not 
 exceeding one month ; the imprisonment to cease upon payment 
 
 47 Ala. 84, 1872. A municipal legislative the court, "must be left to the judgment 
 body, empowered by law to prohibit or and discretion " of the corporate authori- 
 suppress practices against good morals or ties, ift.; States. Bell, 13 Ire. (N.C. Law) 
 public decency, may, by ordinance, punish 378 ; post, ch. xiii. 
 the utterance of profane language, whether ^ Gee v. Wilden, Lutw. 1320, 1324 
 uttered frec[uently or only once by the Wood v. Searl, Bridg. 139 ; Piper v. Chap- 
 same person. The decision of the coun- pell, 14 M. & W. 624; Rawlinson on Corp, 
 cil that profane language is against good 665, note. See post, chapter on Municipal 
 inorals will not be judicially reviewed. Courts. Construction of ordinance in re 
 Delaney, in re, 43 Cal. 478, 1872. spect to disturbing public peace. — Chari 
 
 1 Washington o. Frank, 1 Jones (N. C.) van, St. Charles v. Meyer, 58 Mo. 86. 
 Law, 436, 1854. As to what regulations * 6 and 6 Will. IV. ch. Ixxvi. sec. 90 
 
 of this kind are necessary, " Much," says ante, sees. 35, 886, 837, 398. 
 
404 MUNICIPAL CORPORATIONS. [CH. XIL 
 
 of tbe sum due.^ It is suggested that the remedy thus prescribed 
 is cumulative, and will not debar the corporation from availing 
 itself of the usual common law mode of enforcing a by-law by 
 action of debt or assumpsit.^ But the point seems not to have 
 been yet adjudged. 
 
 § 409. (342) Aside from statutory regulation, the general 
 method of enforcing a by-law in England is, as just stated, by 
 bringing, in the name of the proper party or corporation, an 
 action, in the proper court, against the person who has violated 
 the by-law, to recover the penalty which it imposes, and this action 
 may be either debt or assumpsit. By the common law, assumpsit 
 may be maintained for the breach of any duty which the defend- 
 ant has been legally liable to perform in favor of the plaintiff, the 
 law implying a promise to perform the particular act, and hence 
 no principle was violated in holding that assumpsit would lie to 
 recover the penalty of a by-law. As the penalty was for a sum 
 certain, and was considered to be in the nature of liquidated 
 damages, an action of debt would also lie to recover the amount 
 of the penalty ; but where the by-law itself provided that the 
 penalty should be recovered by debt, then that form of action 
 alone could be maintained. But, aside from statute authority or 
 a valid custom, it was not competent for the by-law to provide 
 that its penalty should be recovered by " distress and sale " of 
 goods, that being contrary to the common law.^ 
 
 § 410. (343) In this eovmtry, the courts hold that where the 
 mode of enforcement is prescribed by the charter, that mode must 
 
 1 76. sec. 139 ; sees. 187-193 ; supra, constitutional limit. Keokuk w. DresseU, 
 sec. 266. 47 Iowa, 597. 
 
 2 EawUnson on Corp. (5th ed.) 167, » Willc 164-181; 1 Saund. PI. &Ev. 
 note. See Adley w. Reeves, 2 Maule & 683; 2 Wlieat. Selw. 1178; 2 Chitty PI. 
 SeL 61 ; Bodwic v. Fennell, 1 Wils. 2-33. 401, where form of declaration in debt is 
 On the other hand, Mr. Grant is of opin- given ; Adley v. Reeves, 2 H. & S. 60. 
 ion that the remedy prescribed, by the The law implies a promise on the part of 
 act is exclusive, and supersedes the com- a corporator to pay all penalties incurred 
 mon-law remedy of debt or assumpsit for for his violation of by-laws ; and if the 
 the amount of the fine or penalty. Grant mode of enforcing such penalties is not 
 on Corp. 364 ; supra, sees. 337, 341. A pointed out, the corporation may sue 
 city ordinance prescribing a term of im- therefor in any competent court. Colum- 
 prisonment which may, but does not bia ». Harrison, 2 Const. (South Car.) 
 necessarily exceed that authorized by the Rep. 213. per Nott, J. ; supra, sees. 336- 
 constitution, may be enforced within the 346. 
 
§ 411] 
 
 MUNICIPAL OEDINANCES OB BY-IAWS. 
 
 405 
 
 be pursued ; ^ but if the mode or form of action is not prescribed, 
 then the recovery of the penalty or fine for the violation of a valid 
 municipal ordinance may be as at common law, by an act of debt 
 or assumpsit, or where these forms are abrogated, by a civil action 
 in substance the same.^ And where such an action is brought, 
 the proceeding is civil and not criminal, and the rules of proced- 
 ure in civil eases, unless otherwise provided, are applicable to 
 it.' The penalties to ordinances are often fixed upon a movable 
 scale, and this would appear to be done under the supposition that 
 they will be enforced, not by a common-law action in the common- 
 law courts to recover the amount of the penalty, but by a complaint 
 or proceeding before the proper municipal magistrate, who will, 
 within the prescribed limits, determine the amount of the fine or 
 penalty to be paid, by reference to the circumstances of the par- 
 ticular case.* 
 
 § 411. (344) Nature of Proceeding, Civil or Oriminal. — Where, 
 instead of a civil action to recover the pecuniary fine or penalty, 
 
 penalty by an action of debt in their own 
 courts. Hesketh v. Braddock, 8 Burr. 
 1858; Barter v. Commonwealth, 8 Pa. 
 (Pen. & W.) 253; supra, sec. 341. 
 
 * lb.; Municipality v. Cutting, 4 La. 
 An. 335 ; Lewiston v. Proctor, 27 111. 414, 
 1860 ; Quincy v. Ballance, 30 lU. 186 ; 
 Davenport o. Bird, 34 Iowa, 524, 1872; 
 Williamson v. Commonwealth, 4 B. Men. 
 
 . (Ky.) 146, 151, 1843 ; Jenkins v. Cheyenne. 
 1 Wy. Ter. 287. 
 
 * Ante, sees. 337, 341. If the statute 
 under which the conviction takes place 
 applies the penalty with certainty, it is 
 sufficient for the justice to award the 
 penalty to be paid and applied according 
 to law. The King v. Barrett, 1 Salk. 383 ; 
 The King v. Seale, 8 East, 573 ; The King 
 V. Thompson, 2 T. R. 18 ; The Queen v. 
 Hyde, 21 L. J. Mag. Cas. 94; Boothroyd, 
 in re, 15 M. & W. 1 ; The Queen v. Crid- 
 land, 7 E. & B. 853 ; The Queen v. John- 
 son, 8 Q. B. 102 ; see also The Queen v. 
 Glossop, 4 B. & A. 616 ; Brown v. Nichol- 
 son, 5 C. B. N. S. 468 ; Seamen's Hos- 
 pital V. Liverpool, 4 Ex. 180; Wray v. 
 Ellis, 1 E. & E. 276. If there be any 
 material variance between the conviction 
 and the statute as to the appropriation of 
 the penalty, the conviction will be bad. 
 Griffith !). Harries, 2 M. & W. 335 ; Chad- 
 dock V. Wilbraham et al, 5 C. B. 645. 
 
 1 Weeks v. Foreman, 1 Harris (N. J.), 
 237, 1837 ; State o. Zeigler, 3 Vroom (32 
 N. J. L.), 262; Ewbanks v. Ashley, 36 111. 
 177, 1864 ; Israel v. Jacksonville, 1 Scam. 
 (2 III.) 290; WUliamson v. Common- 
 wealth, 4 B. Mon. (Ky.) 146, 151, 1843. 
 An action may be brought for the fines 
 and penalties incurred for the violation of 
 ordinances, and it is not necessary that 
 the fine be assessed before the suit is 
 brought. King u. Jacksonville, 2 Scam. 
 (3 111.) 306. In Weeks v. Foreman, 1 
 Harris. (N. J.) 237, 1837, it was held that, 
 although certain corporate officers were 
 ex-officio justices of the peace within the 
 city, with power to take cognizance of 
 violations of by-laws, they could not en- 
 tertain or try actions of debt, to recover a 
 debt or penalty for a breach of an ordi- 
 nance, although it was conceded that they 
 had jurisdiction of the quasi criminal pro- 
 ceeding, founded upon a complaint or 
 information, resulting in what is tech- 
 nically called a conviction; but qucere. 
 Supra, sees. 336-353. 
 
 3 Ewbanks D.Ashley, 86 III. 178,1864; 
 Israel v. Jacksonville, 1 Scam. (2 III.) 
 290; Coates v. Mayor, 7 Cow. (N. Y.) 
 585, 608, 1827. Unless it is otherwise 
 provided by statute or charter, it is con- 
 sidered that corporations have an inherent 
 power to provide for the recovery of a 
 
406 MUNICIPAL COEPOEATIONS. [CH. XIL 
 
 the proceeding is in the nature of a complaint for the violation 
 of the ordinance, this has sometimes been considered to be a 
 criminal or quagi criminal, and not a civil, proceeding. The 
 cases on this subject are not harmonious, but the difference in 
 them, to a large extent, depends upon the character of the act or 
 offence charged, the nature of the charter, and the legislation in 
 the particular state as to the extent of jurisdiction intended to be 
 conferred upon the municipal authorities.^ The constitution of 
 Creorgia declares that " trial by jtlry, as heretofore used in this 
 state, shall remain inviolate." It was claimed that the legislature 
 could not constitutionally confer on the city council the power to 
 pass an ordinance inflicting a fine for its violation, where the guilt 
 of a party was to be tried by the council, without a jury. The court 
 held that the objection was not sound, observing that violations 
 of ordinances are not criminal cases within the meaning of the 
 state constitution, and " that, inasmuch as the right of trial by 
 jury existed in England, and was secured by Magna Oharta, and 
 municipal corporations in that country enforced their by-laws by 
 pecuniary penalties in a summary manner, and the same right 
 being conferred upon similar corporations in this state anterior to 
 the adoption of the constitution, and constantly exercised, " the 
 right of trial by jury, as heretofore used in this state, was not 
 violated by the city council of Augusta, by the imposition of the 
 penalty for the breach of the local police regulations of that 
 city. 
 
 '2 
 
 1 Wayne County ». Detroit, 17 Mich, cited, the extent of the right of jury trial 
 
 390 ; People v. Detroit, 18 Mich. 445 ; at common law is learnedly examined by 
 
 Davenport v. Bird, 34 Iowa, 524, 1872 ; see Mr. Justice Strong. See, also, Dunsmore's 
 
 chapter on Municipal Courts, pos< ; supra, Appeal, 52 Pa. St. 374; Rhines v. Clark, 
 
 sees. 347, 366, 368, and note. 51 Pa. St. 96, 1865. Compare Plimpton 
 
 " Williams w. Augusta (gunpowder or- v. Somerset, 83 Vt. 283, 1860; see post, 
 
 dinance), 4 Ga. 509, 1848, per Warner, J., Municipal Courts, sec. 432, et seq. A stat- 
 
 approving Low v. Comrars. of Pilotage, ute requiring security for costs, in prose- 
 
 R. M. Charlt. (Ga.) 316; Flint River cutions for "penal statutes," does not 
 
 Steamboat Co. o. Foster, 5 Ga. 194; embrace prosecutions under city ordi- 
 
 Floyd V. Commrs., etc., 14 Ga. 354 ; Kip nances which impose penalties for their 
 
 W.Patterson, 2 Dutch. (N. J.) 298; Keeler violation, such ordinances not being 
 
 V. Milledge, 4 Zab. (24 N. J. L.) 142; "statutes" within the meaning of the 
 
 Shafer v. Mumma, 17 Md. 331. "Sum- act. Lewiston v. Proctor, 27 111. 414, 
 
 mary convictions for petty offences against 1860; s. p. Quincy ». Ballance, 30 lb. 185. 
 
 statutes were always sustained, and they Further, as to the nature of the proceed- 
 
 were never supposed to be in conflict with ing and kind of process. Alton v. Kirsch, 
 
 the common-law right to a trial by jury." 68 III. 2B1, 1873; and' see, also, Muniei- 
 
 Per Slroni/, J., Byers v. Commonwealth, pality ». Cutting, 4 La. An. 335 ; Ewbanks 
 
 42 Pa. St. 89, 94, 1862. In the case last t». Ashley, 36 111. 177; Wayne County v. 
 
§413.] 
 
 MUNICIPAL OKDINANCES OK BYrLAWS. 
 
 407 
 
 § 412. (345) On the other hand, in Massachusetts, prosecu- 
 tions for breaches of by-laws or ordinances made to enforce police 
 regulations are regarded as substantially public prosecutions, and 
 in such prosecutions it is competent, though confessed not to be 
 very just, to disallow the defendant costs. Applying this doc- 
 trine, it is held that a statute providing that prosecutions for 
 violations of city ordinances in the name of the state or common- 
 wealth is not unconstitutional, notwithstanding the result is that 
 the defendant does not recover costs on acquittal.^ 
 
 § 413. (346) Mode of pleading Ordinances. — The courts, unless 
 they are the courts of the municipality, do not judicially notice the 
 
 Detroit, 17 Mich. 390 ; People v. Detroit, 
 18 Mich. 445, construing the phrase " penal 
 laws," as used in the Michigan constitu- 
 tion. Phrase "municipal fine," in the con- 
 stitution of California, construed. People 
 V. Johnson, 30 Cal. 98, 1866. Violations 
 of ordinances imposing fines and penalties 
 are in the nature of torts, and actions for 
 such violations may be prosecuted against 
 one or more of the offending parties; 
 they need not all be joined. President, 
 etc. 17. Holland, 19 111. 271, 1857. The de- 
 fendant in such a prosecution cannot raise 
 the question whether the charter of the 
 city is forfeited. Whalen v. Macomb, 76 
 111. 49, 1874. 
 
 1 Goddard, in re, 16 Pick. (Mass.) 
 504, 1835; Commonwealth v. Worcester, 
 3 Pick. (Mass.) 462. "If," says Chief 
 Justice ahaw, in the case first cited, " the 
 prosecution were to enforce a private right 
 by the city, there would be weight in the 
 objection, and it would stand on different 
 grounds." 16 Pick. 508; see Common- 
 wealth V. Gay, 5 Pick. (Mass.) 44; Com- 
 monwealth V. Fahey, 6 Cusli. (Mass.) 408. 
 Similar ohservations in relation to mak- 
 ing sidewalks, by Ford, J., in Paxon v. 
 Sweet, 1 Green (N. J.), 196, 200, 1832. 
 So, in New Hampshire, a public prosecu- 
 tion for an offence made penal by a city 
 ordinance because of its supposed evil 
 consequences to society — as, for exam- 
 ple, the offence of unlawfully keeping a 
 bowling alley — is considered to be a 
 criminal, and not a civil, proceeding. 
 State V. Stearns, 11 Post. (31 N. H.) 106, 
 1856. In Alabama such a prosecution is 
 considered quasi criminal, and the defend- 
 ant cannot testify in his own behalf as he 
 may in a civil action. Mobile v. Jones, 
 
 " 42 Ala. 630, 1868 ; Fink v. Milwaukee, 17 
 Wis. 26, 1863, is decided upon the basis 
 that a prosecution of a party for the vio- 
 lation of a city ordinance, where the pen- 
 alty is a fine, is a criminal prosecution to 
 which the bill of rights applies, which de- 
 clares that "in all criminal prosecutions, 
 the accused shall be entitled to demand 
 the nature and cause of the accusation 
 against him." But a principle so broad, 
 it is believed by the author, can hardly be 
 maintained where the act charged is not 
 a crime at common law or in its essential 
 nature. See chapter on Municipal Courts, 
 post. In Indiana an action to recover the 
 penalty of a by-law, though a warrant for 
 the arrest of the defendant be issued and 
 served, is considered to be a civil suit, and 
 governed by the rules of practice in such 
 suits. Goshen v. Croxton, 34 Ind. 237', 
 1870, and notes. 
 
 In Emporia v. Volmer, 12 Kan. 622, 
 1874, it was decided that the provision of 
 the constitution, that all prosecutions shall 
 be in the name of the state, did not include- 
 prosecutions by a municipality in its owre 
 courts for a violation of its ordinances, 
 and that such prosecutions might be In 
 the name of the municipality. But in 
 Weitzel v. Concordia, 14 Kan. 446, 1876, 
 it was held, without professing to over- 
 rule the previous decision, that a prosecu- 
 tion in a municipal court, under a city 
 ordinance, for a matter made penal by 
 the laws of the state or because of its evil 
 consequences was a criminal proceeding. 
 Whether the rule would be the same if 
 the prosecution was to enforce a private 
 right of the city, the court left open for 
 further consideration. Ante, sees. 366- 
 869. 
 
408 
 
 MUNICIPAL CORPOEATIONS. 
 
 [CH. Xlt 
 
 ordinances of a municipal corporation, unless directed by charter 
 or statute to do so.^ Therefore, such ordinances, when sought 
 to be enforced by action, or when set up by the defendant as a 
 protection, should be set out or stated in substance in the plead- 
 ing. It is not sufficient that they be referred to generally by 
 the title or section. It is, however, believed to be sufficient, ill 
 the absence of special legislative provision prescribing the man- 
 ner of pleading, to set forth the legal substance of that part of 
 the ordinance alleged to have bee© violated, it being advisable, 
 for purposes of identification, to refer also to the title, date, and 
 section. The liberal rules of pleading and practice which char- 
 acterize modern judicial proceedings should extend to, and 
 doubtless would be held to embrace, suits and prosecutions to 
 enforce the by-laws or ordinances of municipal corporations.^ 
 
 1 Trustees v. LefBer, 23 111. 90 ; Mooney 
 V. Bennett, 19 Mo. 551, 1854 ; New Orleans 
 V. Bondo, 14 La. An. 303, 1859 ; Harker v. 
 Mayor, 17 Vend. (N. Y.) 199, 1837 ; Case 
 V. Mobile, 30 Ala. 538, 1857; People v. 
 Mayor, etc., of New York, 7 How. Pr. E. 
 (N. Y.) 81, 1851 ; Cox v. St. Louis, 11 Mo. 
 431, 1848 ; Garvin v. Wells, 8 Iowa, 286 ; 
 Goodrich v. Brown, 30 Iowa, 291, 1870. 
 In England, when an action on a by-law 
 founded on a custom is brought in a court 
 of the municipality the court will take judi- 
 cial notice of it, but in an action in the 
 Superior Courts the custom and the by-law 
 must be set out, for these courts will not 
 take notice of them. Willc. 166, pi. 403 ; 
 lb. 172, pi. 423; lb. 173, pi. 425; Broad- 
 nac's Case, 1 Vent. 196 ; Barber Surgeons 
 V. Pelson, 2 Lev. 252; Norris v. Staps, 
 Hob. 211. In Conboy v. Iowa City, 2 
 Iowa, 90, it was held that the mayor, on 
 whom was conferred exclusive jurisdic- 
 tion of the violation of the ordinances of 
 the city, was authorized to take judicial 
 notice, ex officio, of the city ordinances. 
 The provision of a city charter that its 
 published and printed ordinances shall be 
 received in evidence in all courts without 
 proof does not dispense with the neces- 
 sity of making them part of the record in 
 order to bring them to the knowledge of 
 an appellate court. Cox v. St. Louis, 11 
 Mo. 431, 1848 ; New Orleans v. Bondo, 14 
 La. An. 303, 1859. 
 
 * Harker v. Mayor, etc. 17 Wend. 
 (N. Y.) 199, 1837. Text cited, Emporia 
 
 V. Volmer, 12 Kan. 622, 628, 1874. See 
 Stokes V. Corporation of New York, 14 
 Wend. (N. Y.) 87; Mooney v. Kennett, 
 19 Mo. 551, 1854. In justifying, the de- 
 fendant must set out in his plea or answer 
 the ordinance, or so much thereof as will 
 show on what the defence rests. Ih. ; 
 Keeler v. Milledge, 4 Zabr. (24 N. J. L.) 
 142, 1857. It is sufficient to set out the 
 substance of that part of the ordinance 
 which has been violated, with a reference 
 to the title, date, and section. lb. Ap- 
 proved, Kip V. Patterson, 2 Dutch. (N.J.) 
 298. Regularly, the by-law or its sub- 
 stance should be set forth. Case v. Mo- 
 bile, 30 Ala. 538, 1857; Charleston v. 
 Clmr, 2 Bailey (South Car.), 164. De- 
 fective pleading of an ordinance held to 
 be waived by a plea of not guilty and 
 going to trial on the merits. State v. 
 Welch, 21 Minn. 22. In England, the 
 by-law itself must be fully set out in an 
 action of debt upon it, and not by way of 
 recital ; but in assumpsit upon the same 
 by-law, latitude is allowed. Willcbck, 
 173, pi. 425. But in this country it is 
 said that " it is not necessary to hold to 
 the strictness anciently required." Keeler 
 ». Milledge, 4 Zabr. (24 N. J. L.) 142. 
 In Missouri by statute, fines and penalties 
 accruing to any town may be recovered 
 by civil action ; but the complaint, while 
 it need not contain all the requisites of an 
 indictment, must specify the offence with 
 reasonable certainty. St. Louis v. Smith, 
 10 Mo. 438. This is the true rule. Hence 
 
§ 414] 
 
 MUNICIPAL ORDINANCES OE BY-LAWS. 
 
 409 
 
 § 414. (347) Requisites of Complaints. — Under a charter au- 
 thorizing " complaint " to be made of the violation of ordinances, 
 but not prescribing the mode or requisites, a complaint is not in 
 the nature of an information by a common informer, and the 
 same strictness is not required as in an information or indictment. 
 " It is suiEcient if it sets out with clearness the offence charged, 
 and the substance of that part of the ordinance which has been 
 violated, with a reference to the title, date, or section." ^ 
 
 a complaint charging only that " the de- 
 fendant committed an ofCenue [naming it] 
 contrary to an ordinance of the town " is 
 insufficient. Memphis v.O'Connor, 53 Mo. 
 408, 1873. So a charge that "the defen- 
 dant knowingly associated with thieves 
 previous to August 21, 1871," is too 
 vague, no place being named and the 
 names of the thieves not being given. 
 St. Louis V. Fitz, 53 Mo. 582, 1873. In 
 Indiana, before the act of 1867, it was 
 necessary to file with complaint copy of 
 ordinance or section thereof alleged to 
 have been violated. Green v. Indianapo- 
 lis, 25 Ind. 490 ; Whitson v. Franklin, 34 
 Ind. 392, 1870. Unless required by law 
 or ordinance a complaint, not under oath, 
 will not necessarily vitiate the proceed- 
 ings if the magistrate has jurisdiction of 
 the subject. Alton v. Kirsch, 68 111. 261, 
 1873. Several breaches of an ordinance 
 may be sued for in one suit, if the judg- 
 ment does not exceed the amount of the 
 magistrate's jurisdiction. Hensalt v. Pe- 
 tersburg, 68 111. Ill, 1872. Where a 
 charter provides that "a warrant shall 
 issue in favor of a city .... for a vi- 
 olation of any ordinance when, etc., or 
 upon affirmation by the city attorney, 
 there is no authority for a deputy city 
 attorney to swear to a complaint ; power 
 thus provided must be exercised by the 
 city attorney in person." Kansas City v. 
 Flanagan, 69 Mo. 22. 
 
 » Keeler ». Milledge, 4 Zalff. (24 N. J. 
 L.) 142, 1857. Approved, Kip ti. Patter- 
 son, 2 Dutch. (N. J.) 298 ; City Council v. 
 Seeba, 4 Strob. (South Car.) Law, 819; 
 Commonwealth v. Bean, Thacb. (Mass. 
 Crim. Cas.) 85. Compare Fink o. Mil- 
 waukee, 17 Wis. 26, 1863 ; see, also. Com- 
 monwealth V. Bean, 14 Gray (Mass.), 52; 
 Deitz ». City, 1 Col. 323; Napman v. 
 People, 19 Mich. 852, 1869; Goshen u. 
 
 Croxton, 34 Ind. 239, 1870; Whitson 
 u. Franklin, 34 Ind. 392, 1870. Where the 
 process did not state what ordinance had 
 been violated, nor the time or manner, 
 the proceedings were held defective. 
 State «. Trenton, 7 Vroom (36 N. J. L.), 
 283. The complaint need not state the 
 number of the section violated. Meyer 
 V. Bridgeton, 8 Vroom (37 N. J. L.), 160. 
 The ordinance need not be recited in full. 
 Emporia v. V.olmer, 12 Kan. 622, 1874; 
 Goldthwaite v. Montgomery, 60 Ala. 486, 
 1874; St. Louis v. Smith, 10 Mo. 438. 
 By statute, prosecutions for the violations 
 of the ordinances of Boston may be pros- 
 ecuted in the name of the common- 
 wealth ; and it is decided that in a 
 complaint for such a, violation it is not 
 sufficient that it concludes " against the 
 form of the by-laws of the said city," but 
 it must conclude also against the form of 
 the statute. Commonwealth v. Gay, 6 
 Pick. (Mass.) 44, 1827; Commonwealth 
 W.Worcester, 3 Pick. (Mass.) 462, 1826. 
 Complaint must be in the name of the 
 treasurer of the city or town, and not in 
 that of the commonwealth, for violation 
 of health ordinances, since the statute of 
 1849. Ch. ccxi. sec. 7 ; Commonwealth 
 II. Fahey, 5 Cush. (Mass.) 408, 1850. 
 Policemen, marshals, and other officers 
 of a municipal corporation, where such a 
 course is not repugnant to the constitu- 
 tion or general law of the state, may be 
 empowered by an ordinance to arrest of- 
 fenders without warrant, for breaches of 
 ordinances committed in their presence. 
 Bryan v. Bates, 16 111. 87 ; Main v. Mc- 
 Carty, 15 111. 442; State v. Lafferty, 5 
 Harring. (Del.) 491. A city ordinance 
 providing that any person who shall re- 
 fuse to obey an order at a fire given by 
 any officer duly authorized, "may be 
 arrested and detained in custody until the 
 
410 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIL 
 
 § 415. (348) In an action or proceeding to recover a penalty 
 for the violation of a by-law or ordinance of a corporation, the 
 declaration or complaint should state facts which make the liability 
 of the defendant distinctly to appear.^ And regularly, as before 
 stated, the by-law should be set forth or its substance stated, the 
 breach and the plaintiff's right to sue for the penalty. But where 
 the charter or organic act of the corporation will be judicially 
 noticed, it cannot be necessary to set out, as it has been held to 
 be in England the authority of the corporation to mak« the by- 
 law.2 
 
 § 416. (349) Where the penalty is given in general terms, it 
 is understood to be to the use of the corporation, and the action 
 or prosecution must be by and in the name of the corporation.^ 
 In England it was the practice, in many cases, to appoint in the 
 by-law the penalty to be sued for in the name of the chamberlain, 
 treasurer, or some other officer of the corporation ; and though 
 the power of thus suing for the penalty could not be given to a 
 mere stranger, yet it was not absolutely necessary that the pen- 
 
 fire is extinguished," is unconstitutional, 
 because the person is deprived of his lib- 
 erty without due process of law, and be- 
 cause his right to trial l>y jury is inraded. 
 The court distinguish between an arrest 
 of this kind and where the purpose of the 
 arrest is preliminary to and contemplates 
 a judicial examination. Judson v. Bear- 
 don, 16 Minn. 431, 1871. Under the 
 charter of Newark a violator of an ordi- 
 nance of that city cannot, without his 
 consent, be brought into court for trial, 
 unless by a warrant or summons. New- 
 ark V. Murphy, 40 N. J. L. 145; ante, 
 sees. 210, 211 ; Mitchell v. Lemon, 34 Md. 
 176, 1870; Butolph v. Blust, 5 Lansing 
 (N. Y.), 84, 1871. Requisites of warrants 
 for the violation of municipal ordinances. 
 W^hite V. Washington, 2 Cranch Cir. C. 
 837. Other cases : lb. 356 ; 76. 459 ; 4 lb. 
 103; lb. 582; Prells v. McDonald, 7 Kan. 
 426, 1871. A penalty cannot be imposed 
 without notice. Alexandria v. Bethehem, 
 5 Dutch. (N. J.) 375, 377. Sufficiency of 
 notice to the accused under special charter 
 provisions. 4 Zabr. (24 N. J. L.) 142, 
 supra. Essentials of summary convic- 
 tions. Commonwealth v. Borden, 61 Fa. 
 St. 272. 
 
 1 Saund. PI. & Ev. 324 ; Comyn Dig. 
 tit. Pleader (2 W. 11); Feltmakers i;. 
 Davis, 1 Bos. & Pul. 98; Piper v. Chap- 
 pell, 14 M. & W. 623; Case v. Mobile, 30 
 Ala. 538, 1857 ; Coates v. Mayor, 7 Cow. 
 (N. Y.) 585, 608, 1827, where the sub-' 
 stance of a declaration in debt is given ; 
 Charleston v. Chur, 2 Bailey (South Car.), * 
 164; Krickle v. Commonwealth, 1 B. 
 Mon. (Ky.) 361, 1841. Pleader need not 
 negative exception in a proviso to the 
 enacting clause of an ordinance or in a 
 subsequent section, this being a matter of 
 defence. Lynch v. People, 16 Mich. 472, 
 1868. See Boberson v. Lambertville, 9 
 Vroom (38 N. J. L.), 69; McGear v. 
 Bridgeton, 4 Vroom (33 N.J. L.), 213; 
 Farwell a. Smith, 1 Harr. (N. J.) 133. 
 The conviction must be for the same of- 
 fence for which the defendant is pros- 
 ecuted. Columbus V. Arnold, 30 Ga. 617. 
 
 '^ Nor'ris v. Staps, Hob. 211. 
 
 » Bodwic V. Fennell, 1 Wils. 283 ; 
 Vintners' Co. v. Passey, 1 Burr. 235 ; 
 Glover, 313; 2 Kyd, 167; Graves v. Col- 
 by, 9 Ad. & El. 866; Williamson v. Com- 
 monwealth, 4 B. Mon. (Ky.) 146, 151, 
 1848 ; ante, cli. viii. 
 
§ 417.] MUNICIPAL ORDINANCES OR BY-LAWS. 411 
 
 alty should be given to the corporation, but it might be given to 
 the informer.^ Whenever the mode of enforcing obedience to a 
 by-law is prescribed by such by-law, that mode must be strictly 
 pursued, and the plaintiff (where the rules of common-law plead- 
 ing prevail) must be the party to whom the penalty is given. 
 Where it is given to the chamberlain for the use of the corpora- 
 tion, the action must be in the name of the chamberlain, and not 
 in that of the corporation. And when the chamberlain may sue, 
 he need not set out his election or appointment, but may aver 
 generally that he is chamberlain, and set forth his right to sue 
 and to recover.^ Unless the ordinance show that it was intended 
 that no action for a penalty should lie without a previous demand, 
 it is not necessary to aver one.^ Nor is it necessary to aver that 
 the defendant had notice of the ordinance, for this is conclusively 
 presumed with respect to all on whom it is binding.* 
 
 § 417. (350) Mode of Procedure, Defences, Evidence, etc. — In 
 prosecutions to enforce ordinances, the ordinary rules of evidence 
 apply, except so far as specially modified by statute ; and it is 
 not competent for a municipal corporation, without express au- 
 thority, to make or alter the rules of evidence or of law.^ It is, 
 however, competent for a city to provide by general ordinance, 
 after suit commenced to recover a penalty for acting without a 
 license, that the granting of a license, though by its terms it takes 
 effect from a day previous to the commission of the offence, shall 
 not (as might otherwise be the case) release or waive the penalty.^ 
 
 1 Glover, 313, 314, 315; Feltmakers v. Scam. (5 111.) 78. The defendant's ad- 
 Davis, 1 -Bos. & P. 101 ; Bodwic v. Fen- mission of a violation of an ordinance is 
 nell, 1 Wils. 233 ; Tottendell v. Glazby, competent evidence. Columbia v. Harri- 
 2 Wils. 266; Hesketh ». Braddock, 3 son, 2 Const. R. (So. Car.) 213, 1818. 
 Burr. 1848; "Wood v. Searl, Bridg. 141 ; 6 city Council v. Smidt, 11 Rich. (So. 
 Graves v. Colby, 9 Ad. & El. 356. Car.) Law, 343 ; City Council v. Corlies, 
 
 2 Harris v. Wakeman, Say. 225; Ex- 2 Bailey (So. Car.), 189. Commented on 
 on V. Starre, 2 Show. 159. Under con- by O'Neall, J., in City Council v. Feck- 
 stituent act, town treasurer held entitled man, 3 Rich. (So. Car.) Law, 385. And 
 to sue in his own name' for penalties, see case last cited as to other circum- 
 Watts V. Scott, 1 Dev. (Nor. Car.) 291; stances, in which it was held that a prior 
 Commonwealth:;. Fahey, SCush. (Mass.) penalty was not waived by a subsequent 
 408, 1850. acceptance of the amount of a license for 
 
 3 Butchers v. Bullock, 3 Bos. & P. 434, a year. 
 
 437 A license granted by a de foAio officer 
 
 * London o. Barnardston, 1 Lev. 16 ; of a municipal corporation is valid ; if the 
 
 James v Putney, Cro. Car. 498. city receives and retains the money, it is 
 
 ' City Council ti. Dunn, 1 McCord estopped from maintaining an action for 
 
 (So. Car.), 833; Fitch v. Pinckard, 4 selling liquor without license. Martel :>. 
 
412 MUNICIPAL CORPOEATIONS. [CH. Xlt 
 
 § 418. (351) In proceedings to enforce ordinances, the illegality 
 of the corporate organization cannot be shown to defeat a recovery ; 
 in such a collateral proceeding, evidence that the corporation is 
 acting as such is all that is required. ^ 
 
 § 419. (352) The legislature may ratify ordinances not other- 
 wise binding; and offenders should thereafter be prosecuted 
 under the ordinances, and not under the validating act.^ 
 
 § 420. (353) In prosecutions or actions to enforce ordinances,. 
 or in considering the question of their validity, courts will give 
 them a reasonable construction, and will incline to sustain rather 
 than to overthrow them, and especially is this so where the 
 question depends upon their being reasonable or otherwise. 
 Thus, if by one construction an ordinance will be valid, and by 
 another void, the courts will, if possible, adopt the former. But 
 an ordinance which transcends the power vested in the body 
 which passed it is void, and may be taken advantage of by plea 
 or answer to an action to recover the penalty or other proceed- 
 ings to enforce it.^ Its validity may also be tested in proper 
 
 East St. Louis, 94 111. 67, 1880 ; s. c. 21 by subsequent legislation. But see cases 
 Alb. L. J. 195. cited post, sec. 814, note. And in New 
 Any positive acts [infia vires\ by muni- Jersey also it has been frequently held that 
 cipal officers which may have induced the legislature may validate informal or 
 the action of the adverse party, and where irregular municipal action, when the mat- 
 it would be inequitable to permit the ters dispensed with or cured did not re- 
 corporation to stultify itself, by retracting late to the jurisdiction of the courts, 
 what its officers had done, will work an Bergen w. State, 8 Vroom (32 N.J. L.), 
 estoppel. Martelti.EastSt. Louis, 94111. 490; State v. Union, 4 lb. (33 N. J.L.) 
 67; Roby B.Chicago, 64 111. 477; Rail- 350; State w. Newark, 5 Vroom (34 N. J. 
 road Co. y. JoIiet,_79 111. 39; Logan Co. L.), 236. 
 V. Lincoln, 81 111. '156. ^ Commonwealth v. Robertson, 5 Cusb. 
 
 1 Hamilton v. Carthage, 24 111. 22; (Mass.) 438, 442, 1850; Vintners y.Passey, 
 Mendota v. Thompson, 20 111. 197 ; Coles 1 Burr. 239 ; Poulters Co. v. Phillips, 6 
 County V. Addison, 23 111. 3.83; Decorah Bing. (N. C.) 314, 328; Tailors of Ips- 
 V. Gillis, 10 Iowa, 234; Kettering v. wich, 11 Rep. 54 a; Norris «. Staps, Hob. 
 Jacksonville, 50 111.39; Tisdale v. Min- 211; Tobacco, etc. Co. v. WoodrofEe, 7 
 onk, 46 111. 9, 1867. B. & C. 838; Moir v. Munday, Sayer, 181, 
 
 2 Truchelut ». City Council, 1 Nott & 185 ; Rounds v. Mumford, 2 Rh. Is. 154, 
 McC. (So. Car.)227, 1818; Lennonu.New 1852. Where the legislature has con- 
 York, 65 N. Y. 361, 1874 ; ante, ch. iv. sec. ferred full and exclusive jurisdiction on a 
 79, and note. Logansport v. Crockett, municipal corporation over a certain sub- 
 64 Ind. 319, approving text. In State v. ject, the acts of the corporation will be 
 Plainfield, 9 Vroom(38N. J. L.), 95, where supported by every fair intendment and 
 an ordinance was void for want of proper presumption. Baltimore d. Clunet, 23 
 notice to the person^ interested, it was Md. 449, 1865. The title and the body of 
 held that the error could not be remedied the ordinance may be taken together to 
 
§421.] 
 
 MUNICIPAL ORDINANCES OE BY-LAWS. 
 
 413 
 
 cases by suits against the corporation or its officers for acts done 
 under it,^ or by a return to a mandamus where the party justifies 
 his refusal to comply with the writ on the ground that the ordi- 
 nance is invalid,^ or, as elsewhere shown, by bill in chancery to 
 enjoin proceedings thereunder. 
 
 § 421. (354) If part of a by-law be void, another essential and 
 connected part of the same by-law is also void.^ But it must be 
 essential and connected to have this effect. Thus, if an ordinance, 
 or even the same section of an ordinance, contains two separate 
 
 give it the necessary certainty to sustain 
 it. Martindale v. Palmer, 62 Ind. 411, 
 1876. In view of the inartificial character 
 of town by-laws, they are especially en- 
 titled to a reasonable construction. Whit- 
 lock V. West, 26 Conn. 406 ; Willc. Mun. 
 Corp. 159, pi. 382. By-laws with penal- 
 ties are not properly penal statutes. The 
 penalty is in the nature of liquidated 
 damages, established as such in lieu of 
 damages which a court would be author- 
 ized to assess. Therefore the strict rules 
 by which the validity of penal statutes 
 are to be tested are not to be applied to 
 the by-laws or ordinances of municipal 
 corporations. It is well remarked that 
 " the by-laws of very few of these corpo- 
 rations could stand such a test. They 
 should receive a reasonable construction, 
 and their terms must not be strictly scru- 
 tinized for the purpose of making them 
 void." Per Eustis, C. J., Municipality v. 
 Cutting, 4 La. An. 335; Merriam v. New 
 Orleans, 14 lb. 818 ; s. p. Loze v. Mayor, 
 etc., 2 La. 427. If, however, the ordi- 
 nance is, in its nature, highly penal, it will 
 be construed strictly, and it must clearly 
 embrace the offence charged. Erickle v. 
 Commonwealth, 1 B. Mon. (Ky.) 261, 
 1841. Contemporaneous construction 
 often of great weight in interpreting 
 doubtful provisions. State v. Severance, 
 49 Mo. 401, 1872; ante, sec. 93, note; sec. 
 184, note. 
 
 1 Moir V. Munday, Sayer, 181, 185. 
 St. Charles v. Meyer, 58 Mo. 86, 1874. 
 See protective provisions to corporate 
 officers and agents in Municipal Corpora^ 
 tions Act, 6 and 6 Will. IV. ch. Ixxvi. 
 sees. 132, 138. In the Canadian Municipal 
 
 Act (sec. 198, Harrison's Munic. Man. 2d 
 ed. p. 145) there is what the author 
 would suppose to be a very useful pro- 
 vision to test summarily the validity of 
 by-laws, to the effect that a resident of a 
 municipality or any other person inter- 
 ested in a by-law, order, or resolution 
 may, within one year, apply to either of 
 the superior courts of common law to 
 have it quashed, and the court, after 
 notice to the corporation, may quash the 
 by-law, order, or resolution, in whole or 
 in part, for illegality ; and it is further 
 provided (sec. 205), that in case anything 
 has been done under such illegal by-law, 
 order, or resolution, which gives ^y per- 
 son a right of action, no action shall be 
 brought until one month's notice thereof 
 be given to the corporation, and such 
 action must be brought against the corpo- 
 ration and not against any person acting 
 under the by-law, order, or resolution. 
 Construction of provision, see Harrison's 
 Munic. Man. (2d ed.) pp. 148, 153. 
 
 2 Bex V. Harrison, 3 Burr. 1322 ; Grant 
 on Corp. 89. An ordinance may be void 
 for uncertainty in its provisions, as, for 
 example, one which alters street grades, 
 without referring to any plan or estab- 
 lishing new grades. Kearney v. Andrews, 
 2 Stock. (N. J.) 70. 
 
 ^ Austin V. Murray, 16 Pick. (Mass.) 
 121, 126, 1834, Com. Dig. By-law, ch. 
 vii. ; Rex v. The Co., etc., 8 Term R. 
 356. See Commonwealth v. Stodder, 2 
 Cush. (Mass.) 562, 1848; Fisher v. Mc- 
 Girr, IGray (Ma8s.),l ; Warren ». Mayor, 
 etc., 2 Gray (Mass.), 84 ; CoramCnwealth 
 t>. Hitchingg, 5 Gray (Mass.), 482. 
 
414 
 
 MUNICIPAL COKPOEATIONS. 
 
 [cH. xn. 
 
 prohibitions relating to different acts, with distinct penalties for 
 each, one of which is valid and the other void, the ordinance 
 may be enforced as to that portion of it which is valid.^ 
 
 § 422. (355) When not specially regulated by charter or stat- 
 ute, the 'proof of ordinances must be by the production of the 
 originals or the books in which they are registered, as these are 
 the primary evidence.^ Printed copies, or authenticated copies, 
 are often made competent evidence by the legislature. 
 
 § 423. As all municipal corporations exercise only delegated 
 and limited powers in the absence of statutory authority to that 
 
 ^ Commonwealth v. Dow, 10 Met. 
 (Mass.) 382, 1815; Amesbury v. Insur- 
 ance Co., 6 Gray (Mass.), 596; Warren 
 V. Mayor, 2 Gray (Mass.), 84; Shelton «. 
 Mayor of Mobile, etc. (market ordinance), 
 30 Ala. 540, 1857; Rogers v. Jones, 1 
 Wend. (N. Y.) 2-37 ; Thomas v. Mount 
 Vernon, 9 Ohio, 290; 1 Stra. 469 ; Sir T. 
 Kaym. 288, 294; Sayer, 256 ; 1 B. & Ad. 
 95 ; 7 Term R. 549. " If «. by-law be 
 entire, each part having a general influ- 
 ence over the rest, and one part of it be 
 void, the entire by-law is void." Will- 
 cock on Corp. 160, pi. 384; approved. 
 Municipality v. Morgan, 1 La. An. Ill, 
 116, 1846. " But if a by-law consist of 
 several distinct and independent parts, 
 although one or more of them may be 
 void, the rest are equally valid, as though 
 the void clauses had been omitted." Will- 
 cock, 161, pi. 389 ; Fazakerly v. Wiltshire, 
 11 Mod. 353 ; Lee v. Walls, 1 Kenyon, 
 295. In a leading case, Rex v. The Co. 
 of Fishermen, 8 Term R. 356, Lord Ken- 
 yon said : " With regard to the form of 
 the by-law indeed, though a by-law may 
 be good in part and bad in part, yet it 
 can be so only when the two parts are 
 entire and distinct from each other." Ap- 
 proved, Municipality v. Morgan, 1 La. 
 An. Ill, 116, 1846. It is stated in Grant 
 on Corporations, 88, that it is " now fully 
 settled that a by-law that is void in part 
 is void wholly ; e. g. if the penalty be un- 
 reasonable the rest of the by-law is 
 vitiated thereby, and becomes wholly in- 
 operative and null." Citing Com. Dig. 
 By-Law, eh. vii. ; Colchester v. Godwin, 
 
 Carter, 121 ; EUwood v. Bullock, 6 Q. B ■ 
 383 ; Clarke v. Tuckett,2 Vent. 182 ; Rex. 
 V. Atwood, 4 B. & Ad. 481. But the rule 
 in the text is well sustained, and is rea- 
 sonable ; and it is not true that the void 
 part of a by-law will make null complete 
 and independent parts of the same by- 
 law which would otherwise be good. 
 State ». Clark, 54 Mo. 17, 36, 1873. The 
 act authorizing a sewerage system being 
 unconstitutional in part, so that the 
 scheme adopted could not be made avail- 
 able, the undertaking was arrested. State 
 V. Chamberlain, 8 Vroom (37 N. J. L.), 
 888. 
 
 2 Lumbard v. Aldrich, 8 N. H. 31 ; 
 Stevens v. Chicago, 48 111. 498 ; Moor v. 
 Newfleld, 4 Greenl. (Me.) 44 ; Hallowell 
 Bank v. Hamlin, 14 Mass. 178 ; Case of 
 Thetford, 12 Vin. Abr. 90. See chapter 
 on Corporate Records and Documents, 
 ante. Proof may be made by the clerk 
 that he posted up copies of an ordinance 
 appearing on the records, without pro- 
 ducing such copies or accounting for 
 their absence. Teft v. Size, 5 Gilm. 
 (10 III.) 432. As to promulgation and 
 publication of ordinance. Charleston v. 
 Chur, 2 Bailey (South Car.),'l64; Kit- 
 tering v. Jacksonville, 50 111. 39; supra, 
 sees. 331-335 ; Railroad Co. u. Engle, 76 
 111. 317, 1875. 
 
 Where the charter provides that the 
 printed volume of City Ordinances shall 
 be evidence in all courts, the ordinances 
 printed therein will be judicially noticed 
 the same as public statutes. Napman v. 
 People, 19 Mich. 352, 1869; ante, sec. 83. 
 
§ 423.] MUNICIPAL ORDINANCES OR BY-LAWS. 415 
 
 effect, courts are authorized to indulge in no presumptions in 
 favor of the validity of their ordinances, especially where these 
 abridge general or common-law rights, or impose burdens or pen- 
 alties upon the inhabitants.^ 
 
 1 Schott V. People, 89 111. 195, and cases cited throughout this chapter. 
 
416 MUNICIPAL COEPOKA.TIONS. [OH. XIU, 
 
 CHAPTER XIII. 
 
 MXTNICIPAL COURTS. 
 
 Municipal Courts in England and at Common Law. 
 
 § 424. (356) A municipal corporation may, at common law, 
 enjoy the franchise of holding a court ; and corporation or muni^ 
 cipal courts, which were local or inferior jurisdictions, were not 
 uncommon.! They were treated as the tribunals of the corpora- 
 tion, but since courts of justice are for the public benefit, words 
 in a charter permitting the corporation to hold a court are imper- 
 atire ; ^ and the right cannot be lost by a non-user ; and there- 
 fore the mere disuse, for two hundred years, of a court granted to 
 a corporation by charter is no answer to a rule for a mandamus 
 commanding them to hold it, though it was alleged that there 
 were no sufficient funds for the purpose.^ 
 
 § 425. The common-law doctrine respecting municipal courts 
 was settled to be that the municipal corporation could bring no 
 action therein against a stranger where the effect would be to 
 benefit the corporation or increase its funds, for that would be 
 to make the corporation itself both judge and party, which an in- 
 fle^ble and fundamental maxim of the common law prohibited ; 
 and the same principle was considered to operate to disqualify 
 corporators to sit as jurors in such cases ; but this objection did 
 not apply when both parties were corporators.* 
 
 1 Inst. 114; 4 76. 87, 224; Cro. Jao. the court for the benefit of the inhab- 
 813 ; Haddock's case, T. Raym. 435. itants. lb. ; Grant on Corp. 34. 
 
 2 Rex V. Mayor, etc. of Hastings, 5 B. ' Eegina v. Mayor, etc. of Wells, 4 
 & Aid. 692. The language of the charter Dowl. P. C. 562. 
 
 was " that the mayor may for the pur- * Hesketh v. Braddock, 3 Burr. 1856- 
 pose hereafter have and hold and have 1868; Grant on Corp. 194; London ». 
 power to hold a court of record," and it Wood, 12 Mod. 674; 1 Salk. 398; Bos- 
 was held that these words, though per- worth o. Budgen, 7 Mod. 461 ; Rex v. 
 missive in form, were imperative, and Rogers, 2 Ld. Raym. 778; Willc. on 
 that the corporation was bound to hold Corp. 167, 165. 
 
§ 427.] MUNICIPAL COURTS. 417 
 
 § 426. The English Municipal Corporation Act of 1835 pro- 
 vides for the establishment of borough courts, defines their juris- 
 diction and powers, makes burgesses or citizens competent jurors, 
 contains an express provision that no witness or magistrate shall 
 be incompetent or disqualified by reason of his being liable tf 
 contribute to the fund of the corporation, and regulates in gen 
 eral the proceedings therein for violation of by-laws or ordinances, 
 and the collection and enforcement of penalties.^ 
 
 It may, however, be observed that under the act the power to 
 make by-laws is limited, and does not extend to acts criminal in 
 their nature, and which are punishable by criminal statutes itt 
 force throughout the realm. 
 
 American Corporation Courts — Constitutional Provisions. 
 
 § 427. (357) In this country it is usual to provide in the 
 charter or organic act of a municipal corporation for a local or 
 special tribunal, called by different names, such as the mayor's 
 court, recorder's court, city court, and the like ; and which is in- 
 vested with jurisdiction over complaints and prosecutions for the 
 violation of the ordinances of the corporation, and often, for pub- 
 lic convenience, with special civil and limited criminal jurisdiction 
 under the laws of the state. 
 
 It is competent for the legislature to provide for the establish- 
 ment of these inferior courts, and to invest them with such meas- 
 ure of power and jurisdiction as may be deemed expedient, if no 
 provision of the constitution of the particular state be infringed.^ 
 
 > 5 and 6 Will. ir. oh. Ixxvi, sees. 90, ing the city court of Mobile, which is in- 
 91-118-134, 270-341, 1835. vested with criminal jurisdiction, and 
 ' State V. Mayor of Charleston, 14 from whose judgment an appeal lies, to 
 Rich. (So. Car.) Law, 480; State v. Hel- be constitutional, and defining meaning 
 frid, 2 Nott & McCord (So. Car.), 233, of inferim court. lb. ; Perkins v. Corbin, 
 1820; Callahan v. New York, 66 N. Y. 46 Ala. 103, 1871; holding a city court 
 656, 1876. Full discussion of legislative to be an inferior court within the mean- 
 power to create inferior courts, and define ing of the constitution which may be 
 jurisdiction, lb. ; Gray c^. The State, 2 created and abolished at the pleasure of 
 Barring. (Del.) 76, 1835. Mayor's court the legislature, and that the abolition of 
 an inferior court within meaning of state the court carries with it the office of the 
 constitution. lb. ; Egleston v. City Coun- Judge. New Orleans v. COstello, 14 La. 
 cil, 1 Const. (So. Car.) R. 45, 1818. As An. 37; Myers o. People, 26 HI. 173; 
 to official character of city recorder. lb. ; Davis v. Woolnough, 9 Iowa, 104 ; Peo- 
 Schroder ». City Council, 2 Const. R. pie v. Wilson, 16 111. 389 ; State ». May- 
 726 ; 8. c. 3 Brev. 633 ; Tesh v. Com- nard, 14 III. 420 ; Beesman v. Peoria, 16 
 monwealth, 4 Dana (Ky.), 522; Nugent 111. 484; Holmes w. Finklenburg, S4 111. 
 r. The State, 18 Ala. 521, 1821. Hold- ^08, 1870; Van Swartow v. Common- 
 VOL. I. 27 
 
418 
 
 MUNICIPAL CORPOEATIONS. 
 
 [CH. XIXL 
 
 § 428. (358) We have elsewhere shown that the courts have 
 uniformly held that it was competent for the state legislatures to 
 
 331. In Hutchings v. Scott, 4 Halst. (N. 
 J.) 218, 1827, the objection was made 
 that the legislature could not constitu- 
 tionally confer the powers of justices of 
 the peace on the mayor, recorder, or aldermen 
 of a city or borough, the argument being 
 that since the constitution provided for 
 the appointment of justices of the peace 
 o(ly, and not for corporate oflBcers, offi- 
 cers exercising the authority arid powers 
 of a justice of the peace should be ap- 
 pointed as such ; but the objection was 
 not sustained. In Illinois, mayors of cit- 
 ies cannot, it is held, be constitutionally 
 invested with judicial power. Tlie State, 
 etc. r. Maynard, 14 111. 420; Beesman v. 
 Peoria, 16 III. 484. By the general law 
 of Indiana of 1857, for the incorporation 
 of cities, mayors, in addition to their du- 
 ties proper, have, " within the limits of 
 cities, the jurisdiction and powers of a 
 justice of the peace in all matters, civil 
 and criminal, arising under the laws of 
 the state, and for crimes and misdemean- 
 ors a jurisdiction co-extensive with the 
 county." The constitution of the same 
 state (art. VII, sec. 16) declared that " no 
 person elected to any judicial office shall, 
 during the term, be eligible to any ofSce 
 of trust or profit under the state, other 
 than a judicial office." One Wallace was 
 elected mayor of Indianapolis, and within 
 his term he resigned and received a ma- 
 jority of votes for sheriff of the county. 
 It was held by the Supreme Court of 
 Indiana (Waldo v. Wallace, 12 Ind. 569, 
 1859; Gulick v. New, 14 lb. 93) that 
 Wallace was a "judicial officer," and 
 therefore ineligible to the office of sheriflF; 
 tliat the voters of the county were charge- 
 able with notice of his ineligibility ; that 
 votes cast for him were therefore ineffect- 
 ual, and that his competitor, having re- 
 ceived tlie greatest number of legal votes, 
 though not a majority of the ballots, was 
 duly elected. Notwithstanding the great 
 consideration which these cases received, 
 I venture, with great deference, to state 
 that it is by no means clear to my mind 
 that the mayor was a "judicial officer," 
 within the meaning of the constitution. 
 See, as bearing upon the above decision, 
 and illustrative of the nature of the office 
 
 wealth, 24 Pa. St. 131, 1854 ; Tiemey v. 
 Dodge, 9 Minn. 166 ; St. Peter v. Bauer, 
 19 Minn. 327, 1872 ; Burns v. La Grange, 
 17 Texas, 415, 1856; Slattery. m re, 3 
 Ark. 484; lb. 561; Graham v. State, 1 
 Pike (1 Ark.) 171 ; Floyd v. Commission- 
 ers, 14 Ga. 354, 1853 ; State v. Guttier- 
 rez, 15 La. An. 190; Muscatine:;. Steck, 
 7 Iowa, 505 ; Richmond Mayoralty Case, 
 19Gratt. (Va.) 673, 1870. The superior 
 court of the city o£ San Francisco is con- 
 stitutional. Scale V. Mitchell, 5 Cal. 403 ; 
 Assault V. Austin, 36 Cal. 691 ; Hickman 
 V. O'Neal, 10 Cal. 294. The constitution 
 of Ccdifomia as amended in 1862 author- 
 ized the legislature to establish " re- 
 corder's or other inferior courts in any 
 incorporated city or town " ; and it was 
 held, in view of the prior decisions in the 
 state just cited, that the municipal crim- 
 inal court ot the city and county of San 
 Francisco was an inferior court, and con- 
 stitutional. People V. Nyland, 41 Cal. 129, 
 1871 ; Stratman, in re, 39 Cal. 517, 1870. 
 The Hustings Court of Kichmond is 
 constitutional. Chahoon's case, 21 Gratt. 
 (Va.) 822, 1871; Richmond Mayoralty 
 Case, 19 Gratt. (Va.) 673, 1870. Judi- 
 ciary artifjie of State Constitution of 
 New York as to the jurisdiction of certain 
 city courts construed. Landers v. Staten 
 Island, etc.. Railroad Co., 53 N. Y. 450, 
 1873. 
 
 Under a constitutional prooision declaring 
 that "the judicial power shall be vested 
 in a ^Supreme Court, in district courts, 
 and in justices of the peace," an act con- 
 ferring judicial powers on the mayor of a 
 city was considered void, and it was held 
 that for violations of its ordinances the 
 corporation should resort to the judicial 
 tribunals organized under the constitu- 
 tion. Lafon V. Dufrocq, 9 La. An. 350, 
 1854. But see The State v. Young, 3 
 Kan. 445, 1866, where a provision in an 
 organic act that the judicial power shall 
 be vested exclusively in a Supreme Court, 
 district, probate, and justice courts, was 
 held not to prohibit the legislature from 
 establishing municipal courts for the en- 
 forcement of municipal regulations and 
 ordinances. And this seems to be the 
 correct view. Shafer c. Mumma, 17 Md. 
 
§ 428.] 
 
 MUNICIPAL COURTS. 
 
 419 
 
 create municipal corporations with powers of local government, 
 and to authorize them to adopt ordinances or by-laws, with appro- 
 
 of mayor, Howard v. Shoemaker, 35 
 Ind. lU, 1871; Morrison v. McDonald, 
 21 Me. 550, 1842; State v. Maynard, 
 14 III. 419, 1853; Commonwealth v. 
 Dallas, 4 Dallas, 229; s. c. more fully, 
 3 Yeates (Pa.), 300, 1801 ; State v. Wil- 
 mington, 3 Harring. (Del.) 294, 1839. 
 Authority of a mayor under a statute in- 
 vesting him with the powers of a justice 
 of the peace. State v. Perkins, 4 Zabr. (24 
 N. J. L.) 409 ; 1 Harr. (N. J.) 237 ; Howe 
 'v. Plainfield, 8 Vroom (37 N. J. L.), 145; 
 State V. Zeigler, 3 Vroom (32 N. J. L.), 
 262; explained, McConvill v. Jersey 
 City, 10 Vroom (39 N. .J. L.), 38, 42. See 
 Baton Rouge e. Deering, 15 La. An. 208. 
 A constitutional provision as to eligibility 
 " to the office of judge of any court of the 
 ■state," etc., and requiring a two years' 
 residence " in the division, circuit, or 
 county," was considered to have no refer- 
 ence to the office of recorder of a city. 
 The People v. Wilson, 15 111. 389. 
 
 In Michigan under constitutional pro- 
 visions, dividing the state into judicial 
 circuits, and establishing circuit courts 
 as the courts of general original jurisdic- 
 tion, but authorizing the establishment, 
 by the legislature, of municipal courts in 
 cities : Held, that the original purpose of 
 such municipal courts was not to destroy 
 or materially change the jurisdiction of 
 the circuits, but to relieve them of part 
 of the increased litigation resulting from 
 the growth of large cities. Such courts 
 cannot have, in any class of cases, a juris- 
 diction territorially coextensive with the 
 limits of the county, much less of the 
 entire state. They were designed to 
 meet the wants of the cities wherein they 
 are established. A statute which seeks 
 to give a municipal court jurisdiction, 
 where original process is served within 
 the city, though neither party is a resi- 
 dent, as where service is had anywhere 
 in the county, if plaintiff resides in the 
 city, is unconstitutional and void. Grand 
 Rapids, etc. Railroad Co. i'. Gray, 38 
 Mich. 461, 1878. 
 
 The constitution of Nevada provided 
 that "the legislature may also establish 
 courts for municipal purposes only, in in- 
 corporated cities and towns," and it was 
 
 held that an act authorizing the city re- 
 corder to exercise the duties of commit- 
 ting magistrates in respect to offences 
 against the public laws of the state was in 
 conflict with the constitution. Meagher 
 V. County, 6 Nev. 244, 1869. The consti- 
 tution of Maryland contains a provision 
 that " the judicial power of the state shall 
 be vested in a court of appeals, in circuit 
 courts, in such courts for the city of Balti- 
 more as may he hereafter prescribed, and 
 in justices of the peace," and it was held 
 that the legislature might authorize mu- 
 nicipal courts to try and punish disorderly 
 persons and lewd women within the cor- 
 porate limits, and generally to authorize 
 the corporate authorities to exercise pdice 
 powers, which were distinguished from the 
 ordinary judiciary powers of the state. 
 Shafer v. Murama, 17 Md. 331, 1861. 
 Further as to construction of constitution 
 of Maryland as to judicial powers of 
 mayors. Hagerstown v. Dechert, 32 Md. 
 369, 1869. 
 
 Under the constitution of North Caro- 
 lina " special courts" are authorized " for 
 the trial of misdemeanors in cities and 
 towns where they may be necessary " ; 
 and it was held to be no objection to an 
 act of the legislature that it did not au- 
 thorize the officers of such court to try 
 persons charged with misdemeanors, but 
 only to bind them over. State v. Pen- 
 der, 66 No. Car. 313, 1872. But under 
 the constitution the legislature cannot 
 confer upon mayors the judicial powers 
 of justices of the peace in cioil actions. 
 Edenton v. Wool, 65 U>. 379. 
 
 The amendment of the constitution of 
 Massachusetts of 1821 provided that " no 
 judge of any court of this commonwealth 
 shall at the same time hold the office of 
 governor, etc., or have a seat in the sen- 
 ate or house of representatives." A 
 judge of a police court for the city of 
 Lynn was elected a member of the house 
 of representatives, and took his seat ag 
 such. Police courts were created after 
 the adoption of the constitutional amend- 
 ment in question, and were vested at 
 first with the same civil and criminal ju- 
 risdiction as justices of the peace. The 
 courts thus established were organized 
 
420 
 
 MUNICIPAL C0EP0EATI0N9. 
 
 [cH. xni. 
 
 priate penalties for their violation. The power to do this includes, 
 by fair implication, the power to authorize violations of ordi- 
 nances (where the acts are not criminal in their nature) to be 
 tried and determined in a summary manner by a local or corpor- 
 ation tribunal. 
 
 § 429. The distinction between statute law and municipal by- 
 laws has been pointed out, and the subject of concurrent pro- 
 hibitions of the same act by the general law and by the local 
 ordinances of a municipality treated in the chapter on Ordi- 
 nances. The distinction is there drawn, and is to be observed 
 between acts not essentially criminal, relating to municipal po- 
 lice, and those intrinsically criminal, and which are made punish- 
 able by the general laws of the state. The pecuniary penalties 
 ■which are annexed to violations of the former class, the legisla- 
 ture may, we think, authorize the corporation, to enforce in its 
 own name, by civil action or by complaint, and provision need 
 
 judicial tribunals, having attributes and 
 exercising judicial functions independent- 
 ly of the magistrates designated to hold 
 them, and were thus distinguished from 
 justices of the peace, on whom person- 
 ally certain judicial powers are conferred 
 by law ; and the judges of such courts 
 must, by the constitution, be appointed 
 during good behavior instead of for seven 
 years, as in the case of justices of the 
 peace. It was held that a police court was 
 a court of the commonwealth within the 
 constitutional amendment, and that the 
 judge thereof vacated his office as such 
 judge by accepting another official trust 
 incompatible therewith. Commonwealth 
 V. Hawkes {quo imrranto), 123 Mass. 525, 
 1878. Mr. Chief Justice Gray's opinion 
 will be found highly instructive. 
 
 In Wisconsin, says Ri/an, C. J., In The 
 State V. Lockwood, 43 Wis. 403, 1878, the 
 right of trial by jury upon information or 
 indictment for crime is secured by the 
 constitution and cannot be waived ; and 
 the trial of an information by a judge of 
 a municipal court without a jury was 
 held not to be a legal trial, and the 
 judgment of the municipal magistrate 
 was declared to be void. The chief jus- 
 tice says in substance that a plea of not 
 guilty to an information or indictment for 
 
 crime, whether felony or misdemeanor, 
 puts the accused upon the country, and 
 can be tried by a jury only. The rule is 
 universal as to felonies ; not quite so as 
 to misdemeanors. But the current of 
 authority appears to apply it to both 
 classes of crime; and this court holds 
 that to be safer and better alike in prin- 
 ciple and practice. Cooley's Const. Lim. 
 319, 410, n. : ProfEatt's Jury Tr. sec. 113; 
 Neales v. State, 10 Mo. 498; States. 
 Mansfield, 41 Mo. 470; Commonwealth 
 V. Shaw, 1 Pittsburg (Pa.), 492. In the 
 latter case will be found a collection of 
 authorities bearing on the question of 
 waiver of the right to a jury trial in 
 criminal cases. 
 
 The constitution of Illinois of 1870 pro- 
 vides that "the right of trial by jury, as 
 heretofore enjoyed, shall remain inviolate." 
 Under this provision, the vagrant act, deny- 
 ing to persons arrested for vagrancy the 
 right of trial by jury, was considered by 
 McAllister, J., in view of the previous 
 legislation and constitutional provisions 
 referred to by him, to be unconstitutional. 
 Scully and O'Lcary, in re, 11 Chicago Legal 
 News, 27, 1878. See ante, sec. 401; post, 
 sec. 433. Defendant may waive statute. 
 Slate V. Kaufman, 51 Iowa, 678, 
 
429.] 
 
 MUNICIPAL COURTS. 
 
 421 
 
 not necessarily be made that they shall be prosecuted in the 
 name of the people or of the state.^ 
 
 1 Barter w. Commonwealth, 3 Pa. (Pen. 
 & W.)263; Weeks v. Foreman, I Harri- 
 son (N. J.), 2.37; Ewbank v. Ashley, 86 
 111. 177; Williams v. Augusta, i Ga. 609; 
 Floyd V. Commissioners, 14 Ga. 354 ; Kip 
 V. Patterson, 2 Dutch. (N. J.) 298 ; Lew- 
 iston V. Proctor, 23 111. 533; State v. 
 Jackson, 8 Mich. 110. See State v. Stearns, 
 11 Fost. (31 N. H.) 106; Goddard, Peti- 
 tioner, 16 Pick. (Mass.) 504; Fin^ i: Mil- 
 waukee, 17 Wis. 26. The legislature may 
 enact that suits for the violation of muni- 
 cipal ordinances shall be prosecuted in 
 the name of the people of the state. Pills- 
 bury ». Brown, 47 Cal. 478, 1874. 
 
 The constitution of the state of towa 
 contains this provision : " The style of 
 all process shall be ' The State of Iowa,' 
 and all prosecutions shall be conducted in 
 the name and by the authority of the 
 same." Constitution of Iowa, Art. V. 
 sec. 8. The charter of the city of Dav- 
 enport in terms authorized prosecutions 
 for violations of municipal ordinances to 
 be instituted in the name of the City, and 
 it was contended that this portion of the 
 charter was in conflict with the above 
 quoted provision of the constitution. But 
 the Supreme Court, in the case of Dav- 
 enport" V. Bird, 34 Iowa, 524, 1871, held 
 otherwise. It was a prosecution in the 
 name of the city against the defendant 
 for a violation of an ordinance of a po- 
 lice nature, but for which, under the 
 charter, the city was authorized to punish 
 by a limited fine and imprisonment. In 
 giving the opinion of the court. Miller, J., 
 says : " Is it necessary, under the con- 
 stitution, that all prosecutions for viola- 
 tions of municipal police ordinances shall 
 be conducted in the name and by the au- 
 thority ai the state of loiva f Or, in other 
 words, is that clause of the city charter 
 of Davenport, which directs that 'all 
 suits, actions, and prosecutions be insti- 
 tuted, commenced, and prosecuted in the 
 name of the city of Davenport,' in conflict 
 with the constitutional provision before 
 referred to ? We are of opinion that it is 
 not. This clause of the constitution oc- 
 curs in Art. v., which treats of the judi- 
 cial department of the government. This 
 article vests and defines the judicial power 
 
 of the state, establishes the tenure of 
 office of the judges, and defines the mode' 
 of their election ; fixes their salary and 
 limits the number of judicial districts ; 
 provides for the election of an attorney 
 general, and other matters pertaining to 
 tlie judicial arm of the state, among which 
 is the clause under consideration. From 
 all this, it seems manifest that the re- 
 quirement 'that ail prosecutions sliall be, 
 conducted in the name of " The state of 
 Iowa"' contemplates such criminal /prose- 
 cutions as shall be instituted and prosecu- 
 ted before the tribunals wliich are 
 provided for in that article of the consti- 
 tution under the statutes of the state. It 
 is fitting and appropriate that prosecU-^ 
 tions for violations of the criminal laws 
 of the state should be carried on in the 
 name of the government. But there is 
 no fitness or propriety in requiring the 
 state to be a' party to every petty prose- 
 cution under the police regulations of a 
 municipal corporation. Such a construc- 
 tion of this article of the constitution 
 seems to us unwarranted, and not intended 
 by the f ramers of the constitution. It was 
 held by the Supreme Court of Pennsyl- 
 vania that the word process, in the 12th 
 section of the 6th article of the constitu- 
 tion of the state of Pennsylvania, which 
 provides that 'the style of all process' 
 shall be the Oommonwealth o/ Pennsylvaniti,' 
 was intended to refer to such writs only 
 as should become necessary to be issued 
 in the course of the exercise of that judi- 
 cial power which is established and pro- 
 vided for in the article of the constitution, 
 and forms exclusively the subject-matter 
 of it. On the same principle, we are of 
 opinion that the word 'prosecutions,' in.' 
 the 8th section of Art. V. of our constitu- ' 
 tion, was intended to refer only to such 
 criminal 'prosecutions under state laws as 
 should be cognizable by the judicial, power, : 
 which is established and provided for in 
 that article, and that it was not intended 
 to include prosecutions under ordinances 
 of municipal corporations cognizable be- 
 fore local police magistrates." 
 
 And the same view is held by the Court 
 of Appeals of Kentucky. Williamson v. 
 Commonwealth, 4 B. Mon. (Ky.) 146, 
 
422 MUNICIPAL CORPORATIONS. [CH. XIIL 
 
 § 430, (359) la creating local tribunals, however, and in pre- 
 scribing their jurisdiction, it is essential that the legislature 
 should keep in view two cardinal considerations : First. That these 
 inferior courts will have only such jurisdiction, and can exercise 
 only such powers, as are expressly given or necessarily implied. 
 Fair doubts as to the extent of jurisdiction are resolved against the 
 corporation ; to this effect are all the authorities. Second. Re- 
 gard should also be had to constitutional provisions intended to 
 secure the liberty and protect the "fights of the citizen. The 
 state constitutions contain the substance of the provisions of 
 Magna Charta to the effect that no citizen shall be deprived of life, 
 liberty, or property but by the judgment of his peers or by the 
 law of the land, and also provisions, more or less extensive, se- 
 curing the right of trial by jury. These and other provisions of 
 the fundamental law cannot be violated in acts of the legislature 
 establishing and fixing the jurisdiction of the corporation court or 
 tribunal.^ 
 
 Citizens Competent to he Local Judges, Jurors, and Witnesses. 
 
 § 431. (360) The maxim of the common law above adverted 
 to, that no one shall be a judge in his own case, has no just appli- 
 cation to legislation creating municipal courts, and investing them 
 with jurisdiction to try complaints for breaches of municipal or- 
 dinances. The mayor, though a citizen of the corporation, may 
 be clothed with judicial powers of this character, aud the inhabi- 
 tants, though interested in a minute degree in the recovery, are, 
 or at least may be declared, competent witnesses. In this respect 
 the common-law rules have not been adopted and applied by the 
 American courts to our municipal corporations ; ^ or the courts 
 
 1843. la Nebraslca the constitution pro- 290, 1839; Commonwealth v. Read, I 
 
 vides that "all process and other proceed- Gray (Mass.), 475; The Mayor ». Long, 
 
 ing shall run in the name of the state," 31 Mo. 369, 1861 ; Commonwealth v. 
 
 and this was held to include prosecutions Ryan, 5 Mass. 90 ; Cooley Const. Lira. 
 
 under municipal ordinances, where the 410, 412. 
 
 penalty was fine and imprisonment ; but In the City Council v. Pepper, 1 Rich. 
 quaere. Brownsville v. Cook, 4 Neb. 101, (So. Car.) Law, S64, ^Mb, the defend- 
 1875. As to mode of enforcement and ant, n non-resident of the city, was pros- 
 requisites of complaints, vide chapter on ecuted in the city court, established by 
 Ordinances, sec. 408. act of the legislature, for violation of a 
 1 Zylstrav. The Corporation of Charles- city ordinance. The defendant made the 
 ton, 1 Bay (So. C), 382, 1794; People v. point that, as the judge of that court, the 
 Slaughter, 2 Doug. (Mich.) 334, 1842. Bheriff and jurors were corporators, and 
 ' Thomas v. Mount Vernon, 9 Ohio, therefore interested in the penalty, they ' 
 
§431.] 
 
 MTJNICIPAl COUKTS. 
 
 423 
 
 have considered the common-law doctrine as to the disqualifying 
 effect of interest upon jurors and witnesses as expressly or im- 
 pliedly abrogated by the usual legislative or charter provisions 
 for the constitution of municipal courts, and investing them with 
 jurisdiction to hear and try certain actions by and against the 
 municipality. But a distinction has been well drawn between 
 corporation courts proper and the usual courts of record ; and in 
 respect of ordinary actions in the latter class of courts, a tax- 
 payer of a municipality is incompetent to serve as a juror in a 
 case where the municipality is a party unless made competent 
 by legislative provision, expressly or by implication.^ 
 
 were incompetent to try the cause. In 
 holding this objection unsound, the Court 
 of Appeals, after alluding to Hesketh v, 
 Bradduck, 3 Burr. 1847, relied on by the 
 defendant, remarks : " The statutory au- 
 thority given to the city court to try all 
 offenders against city ordinances, impli- 
 edly declares that, notwithstanding the 
 common-law objection, it was right and 
 proper to give it the power to enforce the 
 city laws against all offenders. The in- 
 terest is too minute, too slight to excite 
 prejudice against a defendant; for the 
 judge, sheriff, and jurors are members of a 
 corporation of many thousand members. 
 What interest of value have they in a fine 
 of twenty dollars ? It would put a most 
 eminent calculator to great trouble to 
 ascertain the very minute grain of in- 
 terest which each of these gentleman 
 might have. To remove so shadowy 
 and slight an objection, the legislature 
 thought proper to clothe the city court, 
 consisting of its judge, clerk, sheriff and 
 jurors, with authority to try the defend- 
 ant, and lie cannot now object to it." Per 
 O'NeaU J., City Council v. Pepper, 1 
 Kich. (So. Car.) Law, 364, 1845. City 
 Council V. King, 4 McCord (So. Car ) 
 487 ; Corwein v. Hames, 11 Johns. (N. Y.) 
 76, 1814. The mayor is not disqualified 
 from presiding in the mayor's court, 
 before which the proceedings are held, 
 from the fact that he is the owner of a 
 lot on the street sought to be widened. 
 The Mayor v. Long, 31 Mo. 369, 1861. 
 
 1 Divenny v. Elmira, 51 N. Y. 506, 1878. 
 This was action of tort in the Supreme 
 Court against the city of Elmira for dam- 
 ages to the plaintiff caused by a defective 
 
 sidewalk, which the city was bound to 
 repair. The question was whether a 
 taxpayer of the city was a competent 
 juror. It was held by the Commission 
 of Appeals that at common law the in- 
 terest of such a juror would be a sufficient 
 objection unless removed by statute, 
 and that as respects the defendant city 
 it had not been thus removed. Mr. 
 Commissioner Earl, in delivering the 
 judgment of the court, said: "The 
 charter of Elmira provides for the elec- 
 tion of justices of the peace, clothed with 
 authority to hear and try actions in the 
 same manner as justices of towns, and the 
 city may sue before such justices to re- 
 cover penalties and forfeitures, and such 
 suits must be tried like civil actions before 
 justices of towns. The defendants in such 
 action may, of course, demand jury trials, 
 and jurors must be summoned from the 
 city, and cannot be summoned elsewliere. 
 Hence, it may be well that in such actions 
 before justices of the peace the incompe- 
 tency of juries on account of interest is, 
 by implication, removed, for otherwise 
 the justices would be practically deprived 
 of jurisdiction, to try the causes which 
 are authorized to be commenced before 
 them. Commonwealth v. Ryan, 6 Mass. 
 90. But there is no such practical diffi- 
 culty in courts of record held in the city, 
 and hence there is no reason for holding 
 that in actions tried in them, in which 
 the city is interested, the incompetency 
 of jurors on account of interest has been 
 removed. I therefore conclude that the 
 common-law rule of incompetency on ac- 
 count of interest applied to these jurors, 
 and that they were properly challenged 
 
424 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. XUL 
 
 Summary Proceedings may, in Certain Cases, be authorized. — 
 
 Jury Trial. 
 
 § 432. (361) Proceedings for the violation of municipal ordi- 
 nances are frequently summary in their character, and it has been 
 made a question how far statutes or charters authorizing such 
 proceedings are valid, especially where no provision is made for 
 trial by jury. This must depend upon the constitution of the 
 state and the extent to which th^ power of the legislature is 
 therein restricted. Offences against ordinances properly made in 
 virtue of the implied or incidental power of the corporation, or in 
 the exercise of its legitimate police authority for the preservation 
 of the peace, good order, safety, and health of the place, and 
 which relate to minor acts and matters not embraced in the 
 public criminal statutes of the state, are not usually or properly 
 regarded as criminal, and hence need not necessarily be prose- 
 cuted by indictment or tried by a jury^. An act of the legis- 
 
 and excluded. Whatever inconvenience 
 may flow from such a holding may be 
 remedied by the legislature. We must 
 administer the law as we find it." 61 N. 
 Y. 512. And it has also been elsewhere 
 decided that in an action to recover dam- 
 ages against a municipality, a resident 
 taxpayer is not competent to sit as a 
 juror if challenged for cause. Fulweiler 
 V. St. Louis, 61 Mo. 479, 1876; Rose v. St. 
 Charles, 49 Mo. 509 ; Johnson v. Ameri- 
 cus, 46 Ga. 80, 1872 ; cmUm, Omaha v. 
 Olmstead, 5 Neb. 446, 1877. 
 
 1 Williams v. Augusta, 4 Ga. 509, 
 1848 ; approved, Floyd v. Commissioners, 
 14 Ga. 358, 1853; Vason v. Augusta, 38 
 Ga. 542, 1868 ; State v. Guttierrez, 15 La. 
 An. 190; Tierney v. Dodge, 9 Minn. 166, 
 186; See St. Peter v. Bauer, 19 Minn. 
 827, 332, 1872, where the text is cited and 
 the subject considered by Ripley, C. J., 
 Byers v. Commonwealth, 42 Pa. St. 89 ; 
 1 Bish. Cr. Pr. sec. 758; State v. Conlin, 
 27 Vt. 318. Thus, in New Jersey, It is 
 held that legislative authority to munici- 
 pal courts to punish violations of ordi- 
 nances by a limited fine and imprison- 
 ment, without providing for a trial by 
 jury, is nut in conflict with the constitu- 
 tional provision that "the right of trial 
 by jury shall remain inviolate." McGear 
 «. Woodruff, 33 N. J. Law, 213, 1868; 
 
 Johnson ». Barclay, 1 Harr. (N. J.) 1 ; B. 
 p. Howe V. Plainfield, 8 Vroom (37 N. J. 
 L.), 145; People v. Justices, 74 N. Y. 408; 
 18 Alb. Law Jour. 254, 1878 ; anU, sees. 
 366, 412, 413. 
 
 Treating of this subject, Mr. Sedgwick 
 says : " Extensive and summary police 
 powers are constantly exercised in all the 
 states of tlie Union for the repression of 
 breaches of the peace and petty offences ; 
 and these statutes are not supposed to 
 conflict with the constitutional provisions 
 securing to the citizens a trial by jury." 
 Stat, and Const. Law, 548, 549; Cooley 
 Const. Lim. 596. In Williams v. Augusta, 
 supra, proceedings before a. city council 
 for violations of its ordinances, although 
 punishable by fine, were considered not 
 to be " criminal cases " within the meaning 
 of the constitution of Georgia, vesting the 
 jurisdiction of all criminal cases in tri- 
 bunals other than corporation courts, the 
 court being of opinion that the term 
 " criminal cases," as used in the constitu- 
 tion, had reference to such acts and omis- 
 sions as are in violation of the public laws 
 of the state, and not to violations of local 
 ordinances made for the internal police 
 and government of the city. In the state 
 last named the settled rule is that the 
 same act cannot be twice punished, — 
 once by the municipality and once by the 
 
§ 433.] 
 
 MUNICIPAL COURTS. 
 
 425 
 
 lature authorizing the arrest of professional thieves and burglars 
 frequenting any railroad depot, etc., in the city of Philadelphia, 
 and their commitment by the mayor, without a trial by jury, is 
 not in conflict with the provision of the constitution of the state 
 which guarantees "that trial by jury shall be as heretofore, and 
 the right thereof remain inviolate." ^ 
 
 § 433. The fourteenth amendment to the constitution of the 
 United States contains a provision similar to that found in many 
 of the state constitutions, " that no state shall deprive any per- 
 son of life, liberty, etc., without due process of law." ^ Thus 
 the principles of Magna Charta, memorable in their origin, historic 
 in their associations, and luminous with the light of liberty, are 
 
 state, — and the rule is adopted that the 
 municipal power ends where the right to 
 indict under state authority exists, as any 
 other rule would deprive the accused of 
 the right to a jury trial. Jenkins v. 
 Thomasville, 35 Ga. 145, 1866 ; Vason f. 
 Augusta, supra; Savannah v. Hussey, 21 
 Ga. 80, 1857. So in Michigan: People v. 
 Slaughter, 2 Doug. (Mich.) 334, 1842. 
 Otherwise in Kentucky: Williamson v. 
 Commonwealth, 4 B. Mon. (Ky.) 146, 
 1843 ; ante, sees. 368, 411. 
 
 ' Byers u. Commonwealth, 42 Pa. St. 
 89. In this case the extent of the right 
 of trial by jury at common law is thor- 
 oughly examined in a valuable opinion 
 by Strong, J., now one of the justices of 
 the Supreme Court of the United States, 
 and the validity of summary convictions 
 sustained. See chapter on Ordinances, 
 ante, sees. 366, 408, 411. The doctrine 
 may be considered as settled in Pennsyl- 
 vania that municipal corporations are not 
 within the constitutional guaranty of jury 
 trial, and that the right to a trial by jury 
 may be withheld by the legislature from 
 new offences, and from new jurisdictions 
 created by statute without common law 
 powers, and from proceedings out of the 
 course of the common law. Rhines v, Clark, 
 51 Pa. St. 96, 1865, per Woodward, C. J. ; 
 Dunsmore's Appeal, 52 Pa. St. 374, 1866 ; 
 Ewing V. Filley, 43 Pa. St. 384, 1862; 
 Van Swartow v. Commonwealth, 24 Pa. 
 St. 131, 1854. See Barter v. Common- 
 wealth, 3 Pa. (Pen. & W.) 253, 1831. 
 Such a constitutional provision does not 
 
 apply in New York to petty offences 
 made triable by statute before a court of 
 special sessions. People v. Justices, 74 
 N. Y. 406, 1878 ; 18 Alb. Law Jour. 254. 
 A different view is, to some extent, taken 
 by the Supreme Court of Vermont under 
 the constitution of that state, whose lan- 
 guage is, that " when an issue of fact 
 proper far cognizance of a jury shall be 
 joined in a court of law, the parties have 
 a right to trial by jury which ought to be 
 held sacred." In the opinion of the court, 
 a public corporation, although the liabil- 
 ity on the corporation be created by 
 statute, is entitled to a jury trial, and 
 therefore a statute providing for a com- 
 pulsory and final reference of a case, in 
 its nature one at common law, is void, 
 and the constitution applies to all contro- 
 versies fit to be tried by a jury, although 
 the particular right was created by statute 
 enacted after the, adoption of the consti- 
 tution. Plimpton V. Somerset, 33 Vt. 283, 
 1860. It would, perhaps, be going too 
 far to say that municipal corporations are 
 not in any case within the constitutional 
 guaranty of a trial by jury, and yet it 
 would not follow that provision might 
 not be made for the trial in a summary 
 way, before municipal courts, of petty or 
 police offences. People v. Justices, 74 N. 
 Y. 406; 18 Alb. Law Jour. 254, 1878; 
 ante, ch. iv. ; supra, sees. 366-368, 411, 412. 
 2 Construed Portland v. Bangor (va- 
 grants), 65 Me. 120, 1876; s. c. 20 Am. 
 Bep. 681 ; ante, sec. 401. 
 
426 MUNICIPAL CORPORATIONS. [CH. XIII. 
 
 part of the fundamental law of this country, and they cannot be 
 contravened in the powers granted to municipalities, nor in the 
 jurisdiction with which municipal courts are invested, nor in the 
 proceedings therein authorized. One of the questions which 
 most frequently arises is whether the defendant is entitled to a 
 trial by jury, and the cases on this subject cannot all be rec- 
 onciled.' The general principles applicable to its solution, how- 
 ever, are plain. Violations of municipal by-laws proper, such as 
 fall within the description of municipal police regulations, as for 
 example those concerning markets, streets, water-works, city 
 officers, etc., and which relate to acts and omissions that are not 
 embraced in the general criminal legislation of the state, the 
 legislature maj authorize to be prosecuted in a summary manner 
 by and in the name of the corporation, and need not provide for 
 a trial by jury. Such acts and omissions are not crimes or mis- 
 demeanors to which the constitutional right of trial by jury ex- 
 tends. In England violations of municipal by-laws where the 
 penalty is a fine, or by authority of parliament a fine and impris- 
 onment, have always been prosecuted in a summary manner, 
 although Magna Charta secures the right of trial by jury. 
 
 The distinction, then, is between offences known as pleas of 
 the crown, where the trial must be by jui-y, and petty offences 
 punishable by fine or amerciament in the inferior jurisdictions.^ 
 And a by-law with appropriate penalties is not necessarily in- 
 valid, because the party may also be indicted for the same act.* 
 So, here, where the act or omission sought to be punished by 
 imprisonment under a municipal ordinance is in its nature not 
 peculiarly an offence against the municipalit\% but rather against 
 the public at large, where it falls within the legal or common-law 
 notion of a crime or misdemeanor, and especially where, being of 
 such a nature, it is embraced in the criminal code of the state, 
 there the constitutional guaranties intended to secure the liberty 
 of the citizen and the right to a trial by jury cannot be evaded by 
 the nature of the powers vested in the municipal corporation or 
 the nature of the jurisdiction conferred upon the municipal courts. 
 If no imprisonment for the violation of the ordinance is author- 
 
 1 Ante, sees. 366-368 and cases in note ; » Grant on Corp. 82 ; ante, sec. 868, 
 sees. 408-414 and notes ; sees. 427, 428. note. 
 
 ' Ante, sec. 368 and authorities cited 
 in note. 
 
§ 434.] MUNICIPAL COURTS. 427 
 
 ized, it is clear that the prosecution is not criminal and there is 
 no constitutional right to a trial by jury. But if a limited im- 
 prisonment on default of paying a fine, or even as part of the 
 punishment, is authorized by the legislature, this does not neces- 
 sarily make the case one to which the right of a jury trial extends. 
 The question depends rather, we think, upon the intrinsic nature 
 of the offence. It is very generally agreed in this country that 
 certain minor or petty offences may be summarily prosecuted 
 and tried without indictment or a jury, but there is a class of 
 cases so near boundary line that the courts have differed as to 
 which side of it they belong.^ On the principles here laid down 
 those which most commonly present themselves may be satisfac- 
 torily determined. 
 
 § 434. (362) Where the legislature undertakes to confer upon 
 the courts of the corporation, or where the corporation seeks to 
 give its court summary jurisdiction to try persons for acts which 
 are indictable, or are criminal offences, it not unfrequently hap- 
 pens that some provision of the constitution, designed to protect 
 the rights or liberty of the citizen, is violated. Thus, under a 
 constitution declaring " that no freeman shall be put to answer 
 any criminal charge, but by indictment," etc., and " that no free- 
 man shall be convicted of any crime but by the unanimous 
 verdict of a jury of good and lawful men in open court, as here- 
 tofore used," an act of the legislature which gives to an ofiScer of 
 an incorporated town the power of trying assaults and batteries, 
 or other crimes, is, in the opinion of the Supreme Court of North 
 
 1 Ante, sees. 366, 368 and note, 408 punishable ; such, for instance, as keep- 
 er ieq., 414, 427, 428. The following refer- ing open house after certain hours, and a 
 ence to some additional authorities, Eng- variety of breaches of police regulations 
 lish and Canadian, respecting the qucs- which will readily occur to the mind of any 
 tion, What is a crime? is taken from Chief one. Per Baron Mbrtm s. c. 96. Where 
 Justice Harrison's Municipal Manual for the proceeding is conducted with a view 
 the Province of Ontario (4th ed. 1878), p. and for the purpose of obtaining redress 
 311 : — for the violation of a private right only, 
 
 "If imprisonment may in the first in- the proceeding is a civil one; but, on the 
 
 stance follow the conviction, the proceed- other hand, where the proceeding is di- 
 
 ing is in general looked upon as a criminal reeled for the punishment of an offence 
 
 one. PerP/att B., Attorney-General ». Barf, which militates against the general in- 
 
 Idff, 10 Exchq. 84. There are many terest of the community, and for the 
 
 crimes, properly so called, which are lia- punishment of the infraction of some 
 
 ble to be punished on summary conviction, public duty, such proceeding is a crim- 
 
 Buttherearea vast number of acts, which inal proceeding. Per Sir Alexander 
 
 In no sense are crimes, which are also Cockbum in arguing same case, p. 8Q. 
 
428 MUNICIPAL CORPOEATIONS. [CH. XIII. 
 
 Carolina, void, because it violates both of these provisions of the 
 constitution.! 
 
 § 435. (363) A similar view was taken in the state of ArTcan- 
 sas, the constitution of which provided that " no man shall be 
 put to answer any criminal charge but by presentment, indict- 
 ment, or impeachment " ; and it was held that the legislature 
 could not confer upon the corporation courts of a city the power 
 to punish an assault and battery -<i- this being a criminal charge 
 — without presentment or indictment ; and it was consequently 
 decided that the judgment of conviction of such a court for an 
 assault and battery is coram non judice, and constitutes no bar to 
 a prosecution by indictment in the courts of the state for the 
 same offence.^ 
 
 § 436. (364) The same doctrine was declared in Michigan. 
 The constitution of that state contained a provision that "no 
 person shall be held to answer for a criminal offence unless on 
 the presentment of a grand jury, except cases cognizable by jus- 
 tices of the peace," etc. ; and, by the statutes of the state, the 
 
 It is not an easy matter to draw a The accused shall have a speedy trial by 
 
 line, and so be able to decide on which an impartial jury of the vicinage." An- 
 
 side of it each case should be placed, other article (124) provides that "the 
 
 Reference may be made to the follow- mayors, recorders, etc., may be commis* 
 
 ing cases : Attorney-Oeneral v. Bowman, sioned, and the legislature may vest in 
 
 2 B. & P. 532, n ; Attorney-General v. tliem such criminal jurisdiction as may 
 
 Siddam, r C. & J. 220; Huntley a. Lus- be necessary for the punishment of 
 
 combe, 2 B. & P. 530 ; Rackham v. Bluck, minor crimes and offences, as the police 
 
 9 Q. B. 691 ; Cobbet v. Slowman, 9 and good order of the city of New Orleans 
 
 Exchq. 633 ; Eggington, tii re, 2 E. & B. may require." It was held that art. 
 
 717; Sweeny v. Spooner, 3 B. & S. 329. 103 laid down the general rule, to which 
 
 Reeve v. Wood, 5 B. & S. 364; art. 124 was an exception, and that 
 
 Attorney-General o. Sullivan, 32 L. J. under the latter article it was competent 
 
 Exchq. 92; Easton's Case, 12 A. & E. for the legislature to provide for the 
 
 645 ; Cattel .-. Ireson, E. B. & E. 91 ; prosecution of minor offences, without 
 
 Morden v. Porter, 7 C. B. N. S. 641; indictment or jury trial, in the Recorder's 
 
 Hearne v. Garton, 2 E. & E. 66 ; Parker v. Court." State v. Guttierrez, 15 La. An. 
 
 Green, 2 B. & S. 299 ; Lucas & Mc- 190, 1860. 
 
 Glashan, in re, 29 Upper Can. Q. B. 81 ; ^ Rector v. State, 6 Ark. (1 Eng.) 187, 
 
 The Queen b. Boardman, 30 Upper Can. 1845; Durr i-. Howard, 6 Ark. 461; 
 
 Q. B. 553; The Queen v. Roddy, 41 Lewis v. State, 21 Ark. 211. But it is 
 
 Upper Can. Q. B. 291." held in the same state that a corporation 
 
 ^ State V. Moss, 2 Jones (N. C.) Law, court may puhish a person for using ob- 
 
 66,1854. See Tierney 17. Dodge, 9 Minn, scene language in the streets, because 
 
 166, 1864. The constitution of Louisi- such an offence is not declared criminal 
 
 ana (art. 103) requires that " prosecutions by any statute of the state. Slattery, 
 
 shall be by indictment or information, in re, S Ark. 484. 
 
§ 438.] MUNICIPAL COURTS. 429 
 
 keeping of a bawdy house was declared to be an offence punish- 
 able by fine and imprisonment. Under this state of the law the 
 city of Detroit was empowered by the legislature " to make all 
 such by-laws and ordinances as may be deemed expedient by the 
 common council for effectually preventing and suppressing houses 
 of ill-fame within the limits of the city." It was held that the 
 term " criminal offence " in the constitution included both felonies 
 and misdemeanors, and embraced the offence (which was such 
 both at common law and by the statute of the state) of keeping 
 a house of ill-fame ; and therefore an ordinance of the common 
 council prescribing the punishment for keeping such a house 
 within the city and providing for the trial and conviction of the 
 offenders in the municipal court without indictment, was uncon- 
 stitutional, the judgment of the court resting upon the principle 
 that, under the constitutional provision quoted, there could be no 
 summary conviction under an ordinance for that which is a crimi- 
 nal offence by the general laws of the state.^ 
 
 § 437. (365) So, by the constitution of Texas, it is provided 
 that " in all cases in which justices of the peace or inferior tribu- 
 nals shall have jurisdiction of causes where the penalty is fine 
 and imprisonment (except in cases of contempt), the accused 
 shall have the right of trial by jury," and under this it was held 
 that the mayor's court could not constitutionally be invested with 
 power to try summarily, and without a jury, a person for assault 
 and battery, in violation of the ordinances of the corporation, 
 where the mayor was authorized to impose a fine.^ 
 
 § 438. (366) In Zylstra v. The Corporation of Charleston, it 
 appeared that the organic act of the city gave to the common 
 council power to affix and levy fines, for all offences against their 
 
 1 People V. Slaughter, 2 Doug. (Mich.) them by fine, although the offence, as in 
 834, 1842, note ; and see Welch v. People, the case before the court (an assault and 
 lb. 332, 1846. But in Kentucky, the con- battery), is indictable under the laws of 
 stitution of which provides that " no per- the state. The court regarded the pro- 
 son shall, for any indictable offence, be cceding in the name of the corporation as 
 proceeded against criminally by informa- of a quasi civil or penal nature, and not 
 tion," and that " all prosecutions shall be as criminal. Williamson v. Common- 
 carried on in the name and by the au- wealth, 4 B. Mon. (Ky.) 146, 1843; 
 thority of the commonwealth," the legis- ante, sees. 88, 411, 436. 
 lature may authorize a city corporation. ' Burns v. La Grange, 17 Texas, 415, 
 to proceed in its name against offenders 1856; S. P. Smith v. San Antonio, lb. 
 for violating its ordinances, and punish 643. 
 
430 
 
 MUNICIPAL CORPOKATIONS. 
 
 [CH. xm. 
 
 by-laws, and there was no limitation of the amount of the fines. 
 In this respect the charter was silent. The " Court of Wardens " 
 (the corporation tribunal) had the power expressly given to it to 
 commit for fines and penalties. Under these circumstances the 
 corporation of Charleston passed an ordinance prohibiting the 
 exercise of the trade of candle and soap making within the limits 
 of the city, under a penalty of £100. Zylstra was prosecuted in 
 the Court of Wardens — composed of members of the city coun- 
 cil — for a violation of this by-law,^ and fined by this court £100. 
 On his motion to obtain a prohibition it was held, under the 
 constitution of that state, that the proceedings of the Court-of 
 Wardens were void, not being according to the lex terroe recog- 
 nized by Magna Charta, and expressly adopted by the state con- 
 stitution. And the judges who expressed themselves on that 
 point were of opinion, under the state constitution, that that tri- 
 bunal could not be invested with a jurisdiction greater than that 
 exercised by justices of the peace, unless there was provision for 
 securing a trial by jury, which in the instance before the court 
 had not been made.^ 
 
 1 Zylstra v. Charleston, 1 Bay (So. 
 Car.), 382, 1794. 
 
 In holding that the charter of the city 
 of Lancaster did not confer upon the 
 councils the right to vest in the mayor 
 and aldermen jurisdiction to convict sud:i- 
 marily, and imprison in default of pay- 
 ment of the penalty affixed to an ordi- 
 nance, Gibson, C. J., remarked : " Now, if 
 the charter even purported to confer a 
 power to imprison on summary conviction 
 (for a misdemeanor) and without appeal to 
 a jury, it would be so far unconstitutional 
 and void." Barter v. Commonwealth, 
 3 Pa. (Pen. & W.) 253, 1831. 
 
 A statute providing for summary con- 
 viction for a new offence before inferior 
 jurisdictions, without a jury, does not 
 violate the provision of the constitution 
 that " trial by jury shall be as heretofore, 
 and the right thereof remain inviolate." 
 Van Swartow c Commonwealth, 24 Pa. 
 St. 131, 1854. See, also. Boring «. Wil- 
 liams, 17 Ala. 510 ; Times <j. The State, 
 26 Ala. 165 ; Powers, in re, 25 Vt. 261 ; 
 Murphy v. People, 2 Cow. (N. Y.) 815 ; 
 Shirley u. Lunenburg, 11 Mass. 379 ; 
 Rhines n. Clark, 51 Pa. St. 98; supra, 
 sec. 432. 
 
 As to the right, under particular con- 
 stitutional and statutory provisions, to a 
 jury tnal. for violations of municipal by- 
 laws. Thomas v. Ashland, 12 Ohio St. 
 124 ; Work v. State, 2 lb. 296 ; Gray v. 
 State, 2 Harring. (Del.) 76, 1836; Low 
 V. Commissioners of Pilotage, E. M. 
 Charlt. (Ga.) 302; Green b. Mayor, 76. 
 368, 371; Williams v. Augusta, 4 Ga. 
 509. Approved, Floyd v. Commissioners, 
 14 Ga. 354, 1853 ; State v. Guttierrez, 15 
 La. An. 190; Trigally v. Memphis, 6 
 Coldw. (Tenn.) 382, 1869. 
 
 Jurisdiction of mayor's, recorder's, and 
 police courts under statutes or special char- 
 ters. Commonwealth v. Pindar, 11 Met. 
 (Mass.) 539 ; Commonwealth v. Koark, 
 8 Cush. (Mass.) 210; Same v. Emery, 11 
 Cush. (Mass.) 406; KIder v. Dwight 
 Manufacturing Co., 4 Gray (Mass.), 201 ; 
 State. V. Ricker, 32 N. H. 179 ; Meyers v. 
 People, 26 III. 173 ; Rice v. State, 3 Kan. 
 141 ; State v. Young, 3 Kan. 445 ; Malone 
 V Murphy, 2 Kan. 250; Gray ». State, 2 
 Harring. (Del.) 76; Hutchingsw.Scott, 4 
 Halst. (N. J.) 218 ; Cincinnati v. Gwynne, 
 10 Ohio, 192; 14 76. 250, 603; Markle v. 
 Akron, 14 Ohio, 586 ; Weeks o. Foreman, 
 1 Harris. (N. J.) 237; Truchelut «. City 
 
§ 440.] MUNICIPAL COURTS. 431 
 
 Sufficient if the Right of a Jury Trial is given hy Appeal. 
 
 § 439. (367) It is, however, the prevailing doctrine, that al- 
 though the charge or matter in the municipal or local courts be 
 one in respect of which the party is entitled to a trial by jury, 
 3'^et if by an appeal, clogged with no unreasonable restrictions, he 
 can have such a trial as a matter of right in the appellate court, 
 this is sufficient, and his constitutional right to a jury trial is not 
 invaded by the summary proceeding in the first instance.^ 
 
 Review of Proceedings hy Superior Tribunals, 
 § 440, (368) With respect to inferior jurisdictions, the right 
 to review their proceedings by the superior tribunals will not be 
 taken away unless the intention of the legislature to this effect is 
 expressed with unequivocal clearness. The authorities cited in 
 the note will show the great length to which the courts go in 
 preserving the right to review the proceedings of subordinate tri- 
 bunals, administered frequently by men without professional or 
 judicial knowledge or experience. A declaration by the statute 
 concerning an inferior tribunal, that its proceedings " shall be 
 final and conclusive^' or '•'■without appeal^'' etc., will not deprive a 
 party of the right of review by certiorari, error, or the proper 
 proceeding.^ But where it is declared with respect to a court of 
 
 Council, 1 Nott & McC. 227 ; Thornton Lim. 410. Text cited and followed. Em- 
 
 V. Smith, 1 Wash. (Va.) E. 106; McMul- poria v. Vollmer, 12 Kan. 622, 631, 1874. 
 
 len V. City Council, 1 Bay (South Car.), post, sec. 813. 
 
 46 ; Zylstra v. Charleston, Ih. 382 ; Willis = Rex v. Commissioners, 2 Keeble, 43; 
 
 V. Booneville, 28 Mo. 543 ; Fayette v. Rex v. Moreley, 2 Burr. 1040 ; Lawton v. 
 
 Shafroth, 25 Mo. 445 ; Sill w. Corning, 15 Commissioners, 2 Caines (N. Y.), 179, 
 
 N. y.297 ; Landers u. Staten Island Kail- 181; Starr u. Trustees, 6 Wend. (N. Y.) 
 
 road Co., 53 N. Y. 450, 1873; Goodrich v. 564; People v. Mayor, 2 Hill (N. Y.), 9; 
 
 Brown, 30 la. 291, 1870. Penna, Hall Tierney v. Dodge, 9 Minn. 166; Heath, 
 
 in re, 5 Pa. St. 204, 1847; Alexanders, in re, 3 Hill (N. Y.), 42, 62, and cases 
 
 Bennett, 60 N. Y. 204, 1875. cited and reviewed by Cowen, 3. 
 
 Extent of jurisdiction territorially. A kindred subject is treated in the 
 
 State V. Clegg, 27 Conn. 593 ; Covill v. chapter on Municipal Officers, — " Spe- 
 
 Phy (process), 26 III. 432; State v. cial Tribunal to determine Election Con- 
 
 McArthur, 13 Wis. .383; Hoag v. Lament, tests for Municipal Offices," — ante, sec. 
 
 60 N. Y. 96, 1875. 200, and it is there shown that the ordi- 
 
 1 Stewart v. Mayor, 7 Md. 501; Mor- nary constitutional provision that the judi- 
 
 ford V. Barnes, 8 Yerger (Tenn.), 444; cial power shall be vested in certain courts 
 
 McDonald y. Schell, 6 Serg. &Rawle (Pa ), does not disable the legislature from 
 
 240; Beers v. Beers, 4 Conn. 535 ; Jones providingthatthecouncilof municipalcor- 
 
 V. Bobbins, 8 Gray (Mass.), 329 ; Dorgan porations may finally determine the valid- 
 
 ■ II. Boston, 12 Allen (Mass.), 223; Sedg. ity of the election of corporation officers. 
 
 St. and Const. Law, 549; Cooley Const. Mayor, etc. v. Morgan, 7 Martin (La.), 
 
432 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIIL 
 
 general and superior jurisdiction, as of the Supreme Court of New 
 York, that its action (for example, in confirming appraisements 
 for opening streets, or under a railroad act) " shall be final and 
 conclusive upon the parties interested and upon all other persons," 
 the right of appeal, which would otherwise exist from the deci- 
 sion of such court to a still higher tribunal, as to the Court of 
 Appeals, is destroyed.^ A charter provision to the effect that 
 appeals and writs of error from judgments of the mayor, in cases 
 arising under the charter, should qjily be allowed in cases where 
 the fine was over five dollars, was considered as evincing the 
 
 1 ; 9 76. (N. S.) 381, 1828; State v. Fitz- 
 gerald, 44 Mo. 425, 1869 : Ewing o. Fil- 
 ley, 43 Pa. St. 384 ; State v. Johnson, 17 
 Ark. 407. But the sapervisory jurisdic- 
 tion of the superior courts will not be 
 held to be taken away by mere negative 
 words. Grier v. Shackleford, Const. Rep. 
 642; State V. Fitzgerald, supra; Common- 
 wealth V. McCloskey, 2 Bawle (Pa.), 369; 
 Strahl, in re, 16 la. 369; State v. Funck, 
 17 la. 365 ; Bateman v. Megowan, 1 Met. 
 (Ky.) 533; Waramacks v. HoUoway, 2 
 Ala. 31 ; Hummer ». Hummer, 3 G. 
 Greene (Iowa), 42 ; State v. Marlow, 16 
 Ohio St. 1 14 ; Attorney General v. Corpo- 
 ration of Poole, 4 Mylne & Cr. 17 ; At- 
 torney General v. Aspinwall, 2 Ih. 613 ; 
 Parr v. Attorney General, 8 CI. & F. 
 409; Taylor v. Americus, 39 Ga. 59. 
 post, chs. XX. xxi. xxii. ; post, sec. 926. 
 
 The Supreme Court of Michigan, in 
 reriewing, on certiorari, the legality of a 
 conviction of a defendant in t1ie record- 
 er's court on a complaint for violating 
 a municipal ordinance, speaking of the 
 extent of the revisory power of the superior 
 tribunals, and the nature and purposes 
 of the municipal tribunals, says : " The 
 power of reviewing upon certiorari judi- 
 cial proceedings of inferior tribunals and 
 bodies not according to the course of the 
 common law has been long exercised 
 in England, as well as in this country. 
 The power has been jealously main- 
 tained, and has been deemed necessary 
 to prevent oppression. There are certain 
 classes of questions which, by common 
 understanding, from time immemorial 
 belong to the course of the judicial in- 
 quiry under the laws of the land. The 
 common law and the various charters 
 and bills of rights recognized and assured 
 
 the right to such an inquiry; and the 
 constitution, in apportioning the judicial 
 power, as well as in affirming the immu- 
 nity of life, liberty, and property, has 
 always been understood to guarantee to 
 each citizen the right to have his title to 
 property, and other legal privileges, de- 
 termined by the general tribunals of the 
 state. These municipal courts, so far as 
 they act under city by-laws, are not de- 
 signed to decide between man and man, 
 or to administer general laws. They are 
 ordained to prevent disorder in matters of 
 local convenience, and to regulate the use 
 of public and quasi public easements, so 
 as to prevent confusion. If in exercising 
 this power they can incidentally decide 
 upon the rights of private property so as 
 to determine its enjoyment without re- 
 view, there would seem to be a practical 
 annihilation of the right to resort to the 
 general tribunals and the common law." 
 Per Campbell, J., Jackson o. People, 9 
 Mich. Ill, 117, 1860. Further see ch. 
 xxii. post, sec. 925, et seg. 
 
 An appeal from inferior tribunals does 
 not exist unless plainly given. People 
 V. Police Justice, 7 Mich. 456; Conboy 
 w. Iowa City, 2 Iowa, 90; Muscatine v. 
 Steck, 7 Iowa, 505 ; Bubuque v. Bebman, 
 1 Iowa, 444. Certiorari, on the other 
 hand, will lie unless plainly denied, or 
 other specific remedy be given. Cun- 
 ningham V. Squires, 2 West Va. 422, 
 1865 ; post, sec. 611, and chapter on 
 Remedies against Illegal Corporate Acts, 
 post. 
 
 ^ Canal and Walker Streets, m re, 
 12 N. Y. (2 Kern.) 406, 1855; New York, 
 etc. Railroad Co. v. Marvin, 11 lb. (1 
 Kern.) 276. 
 
§441.] 
 
 MUNICIPAL COURTS. 
 
 433 
 
 legislative intention that in cases where the fine was under that 
 sum the judgment should be final, and hence a writ of prohibi- 
 tion will not lie to restrain its collection, nor can it be reviewed 
 on certiorari.^ 
 
 § 441. (369) In Virginia it is decided that in a proceeding 
 before the mayor or a justice to impose a penalty on a party for 
 obstructing a street, the mayor or justice cannot, if the defendant 
 bona fide sets up title to the land claimed as a street, inquire into 
 the validity of the claim, the court holding that by the principles 
 of the common law (which are not changed by the statutes), a 
 bona fide assertion of title to property or to an incorporeal her- 
 editament or real franchise, ousted the jurisdiction of these 
 inferior magistrates or tribunals.^ 
 
 1 Wertheimer v. Mayor, etc., 29 Mo. 
 254, 1860. 
 
 * Warwick v. Mayo, 15 Gratt. (Va.) 
 628, 1860. To the same effect, see Jack- 
 son V. People, 9 Mich. Ill, 1860; Grand 
 Kapids 0. Hughes, 15 Mich. 54, 1866. 
 See chapter on Streets. What recnrd of 
 conviction before corporation ofBcera or 
 courts should show. Keeler v. Milledge, 
 4Zabr. (24 N. J. L.) 142; Muscatine v. 
 Steck, 7 Iowa, 605; Buck v. Danzen- 
 
 backer, 8 Vroom (37 N. J. L.), 359; St. 
 Peter v. Bauer, 19 Minn. 327, 1872; Gold- 
 thwaite ». Montgomery, 60 Ala. 486, 
 1874. See ch. xxii., post. 
 
 A town o£Scer who holds in custody a 
 person committed by a verbal order of a 
 police magistrate for non-payment of a 
 fine imposed for the breach of a town 
 ordinance, acts not only without authority 
 but in violation of law. Board of Trus- 
 tees, etc. v..Schroeder, 68 111. 853, 1871. 
 
 VOL. I. 
 
 28 
 
434 MUNICIPAL CORPORATIONS. [CH. XIV. 
 
 CHAPTER XIV. 
 
 CONTBACTS. 
 
 § 442. (370) The mode of enforcing the contracts of muni- 
 cipal corpdrations will be considered hereafter.^ In this chapter 
 we will treat, in the order below indicated, of the power of such 
 corporations to make contracts of different kinds, the mode of 
 exeroibing the power, and the effect of transcending it. 
 
 1. Extent of Power to contract, and how conferred — sees. 
 443-447. 
 
 2. Mode of exercising the Power — sec. 449. 
 
 3. Seal not necessary unless required — May be concluded by 
 Vote or Ordinance — sees. 450, 451. 
 
 4. When bound by Contracts made by Agents — Mode of 
 Execution — sees. 452-456. 
 
 6. Contracts beyond Corporate Powers void — Ultra Vires a 
 Defence — sees. 457, 458. 
 
 6. Implied Contracts — When Deducible — sees. 459, 460. 
 
 7. Ratification of Unauthorized Contract — sees. 463-465. 
 
 8. Provision requiring Letting to Lowest Bidder — sees. 466- 
 470. 
 
 9. Contract of Suretyship — see. 471. 
 
 10. Rights and Liabilities as respects Authorized Contracts — 
 Illustrations — Cases mentioned — Power to settle Disputed 
 Claims — To give Extra Compensation — To employ Attorneys 
 — sees. 472-479. 
 
 11. Contracts for Public Works — Rights of Contractors — 
 sees. 480-483. 
 
 12. Same — Corporate Control under Stipulation — sees. 480- 
 483. 
 
 13. Evidences of Indebtedness — Negotiable Bonds — sees. 
 484, 485. 
 
 > See post, ohs. xx., xxii., xxiii. Legislative power over contracts made by mu- 
 nicipal corporations. See ch. vi., ante. 
 
§ 443.] CONTEACTS. 435 
 
 14. Ordinary Warrants or Orders — Their Legal Nature — 
 sees. 487, 488. 
 
 15. Liability of Indorsers thereof — sec. 489. 
 
 16. Payment and Cancellation of Orders and Warrants, — 
 sec. 500. 
 
 17. Rights and Remedies of Holders thereof — sees. 501, 502. 
 
 18. Defences thereto — Ultra Vires — Fraud — Want of Con- 
 sideration — sec. 504. 
 
 19. Orders payable out of a Particular Fund — sec. 505. 
 
 20. Interest on Corporate Indebtedness — sec. 506. 
 
 21. Railroad Aid Bonds ^Course of Decision in U. S. Su- 
 preme Court — sees. 511-515. 
 
 22. Leading Cases in National Supreme Court on the Subject 
 noticed — sees. 521-534. 
 
 23. Decisions in State Courts referred to — Conclusion stated 
 — sees. 550-554. 
 
 § 443. (371) Hxtent of Power, and how conferred. — In de- 
 termining the extent of the power of_a municipal corporation to 
 make contracts, and in ascertaining the mode in which the power 
 is to be exercised, the importance of a careful study of the char- 
 ter or incorporating act, and the general legislation of the state on 
 the subject, if there be any, cannot be too strongly emphasized. 
 Where there are express provisions on the subject, these will, of 
 course, measure, as far as they extend, the authority of the cor- 
 poration. The power to make contracts, and sue and be sued 
 thereon^ is usually conferred, in general terms, in the incorporat- 
 ing act. But where the power is conferred in this manner it is 
 not to be construed as authorizing the making of contracts of all 
 descriptions, but only such as are necessary and usual, fit and 
 proper, to enable the corporation to secure or carry into effect the 
 purposes for which it was created ; and the extent of the power 
 will depend upon the other provisions of the charter defining the 
 matters in respect of which the corporation is authorized to act. 
 To the extent necessary to execute the special powers and func- 
 tions with which it is endowed by its charter, there is, indeed, an 
 implied or incidental authority to contract obligations, and to sue 
 and be sued in the corporate name.^ 
 
 1 1 Kyd, 69,70; 2 Kent Com. 224; Corwith, 48 111. 423, 1868; Straus v. 
 Angell& Ames, sees. 110, 271; Galena w. Insurance Co., 5 Ohio St. 59, 1855; 
 
436 
 
 MUNICIPAL COBPOKATIONS. 
 
 [CH. XIT. 
 
 § 444. CoHTRACTS WITH MuxiciPAL Officees. — It is a 
 well established and salutary rule in equity that he who is en- 
 trusted with the business of others cannot be allowed to make 
 such business an object of pecuniary profit to himself. This rule 
 does not depend on reasoning technical in its character and is not 
 
 ChaSee v. Granger, 6 Mich. 51 ; Douglas 
 V. Virginia City, 5 Nev. 147, 1869 ; Good- 
 rich V. Detroit, 12 Mich. 279 ; Bank of 
 Columbia v. Patterson, 7 Cranch, 299, 
 1813 ; Siebrecht v. New Orleans, 12 La. 
 An. 496, 1857 ; Bateman v. Mayor, etc., 3 
 Hurl. & Nor. 322, 1858; Nowell v. Wor- 
 cester, 9 Wil. H. & G. 466, 1854. In In- 
 dianapolis V. Indianapolis Gas Co., 66 
 Ind. 396, approving text; Montgomery 
 Co. V. Barber, 45 Ala. 237, 1871. 
 
 Under general authority to make all 
 contracts necessary for its welfare, a city 
 may contract for toater-works. Cabot v. 
 Borne, 28 Ga. 50; see Wells v. Atlanta, 
 43 Ga. 67. Duty and power as owner of 
 water-works. McKnight v. New Orleans, 
 24 La. An. 412, 1872 ; Grant v. Daven- 
 port, 36 Iowa, 396, 1873 ; Hall v. Hough- 
 ton, 8 Mich. 458. May contract for light- 
 ing streets, etc. Indianapolis v. Indianap- 
 olis Gas. Co., 66 Ind. 396. For grading 
 streets. Sturtevant v. Alton, 3 McLean, 
 393. To buad sidewalks. Wyandotte «. 
 Zeitz, 21 Kan. 649 ; Lawrence v. Killam, 
 11 Kan. 512, approving text. For " break- 
 water " to protect streets of a city on the 
 lake. Miller v. Milwaukee, 14 Wis. 642 ; 
 approved, arguendo, by Cole, J., in Clason 
 V. Milwaukee, 30 Wis. 316, 321, 1872. 
 Supra, sec. 261, note. Legislative power over 
 mwnicipcU contracts. Ante, oh. iv. Grant v. 
 Davenport, 36 Iowa, 396, 1873. 
 
 The city of Richmond possessed, un- 
 der its charter, all the powers of munici- 
 pal corporations, including the power " to 
 contract and be contracted with," and 
 its council was specially empowered " to 
 pass all by-laws which they shall deem 
 necessary for the peace, comfort, conven- 
 ience, good order, good morals, health, 
 or safety of the city, or of the people or 
 property therein." In April, 1865, in 
 anticipation of the evacuation of the 
 city by the confederate army and the en- 
 try of the national forces, the city council 
 ordered the destruction of all the liquor in the 
 city, and pledged the faith of the city for 
 
 the payment of its value, and it was de- 
 cided by the Court of Appeals that under 
 the provision of the charter above men- 
 ti(Jned the council had authority to make 
 the order and pledge, and hence the city 
 was responsible for the value of liquor 
 destroyed under the order of the council. 
 Jones V. Richmond, 18 Gratt. (Va.) 617, 
 1868. The same question upon the same 
 resolutions of the city council was pre- 
 sented to the United States Supreme 
 Court in Richmond v. Smith, 15 Wall. 
 429, 1872 ; and it followed, without exam- 
 ination into its correctness, the exposi- 
 tion of the charter given by the State 
 Court in Jones v. Richmond, supra. Up- 
 on the general principles of construction, 
 the author doubts whether the order for 
 the destruction of the liquors was within 
 the scope of the corporate powers of the 
 city. Ante, sec. 89. Contract made by 
 city under government therein set up by 
 the United States military authority held 
 valid. Prather v. New Orleans, 24 La. 
 An. 41. Special prohibition in a city 
 charter construed to extend to all con- 
 tracts of sale to the city. Gregory ». 
 Jersey City, 5 Vroom {34 N. J. L.), 390. 
 Where an executory contract with a 
 municipal corporation is not in its nature 
 necessarily personal, as, for example, a 
 contract for cleaning streets, it may cer- 
 tainly with the assent, express or im- 
 plied, of the city, be assigned, if there be 
 no restriction on the right, and the city 
 retains the personal obligation of the 
 original contractor and his sureties. Dev- 
 lin V. New York, 63 N. Y. 8, 1875. 
 
 No corporation can make a valid con- 
 tract not to exercise part of the fran- 
 chise committed to it by the state for 
 public purposes. St. Louis v. St. Louis 
 Gaslight Co., 5 Mo. App. 484, 529. See 
 opinion of the Supreme Court of Missouri 
 on Appeal, in the case last cited ; and see 
 also Index, Title, — Delegation of Public 
 Powers. 
 
§ 444.] CONTRACTS. 437 
 
 local in its application. It is based upon principles of reason, 
 of morality, and of public policj'. It has its foundation in the very 
 constitution of our nature, for it has authoritatively been declared 
 that a man cannot serve two masters, and is recognized and en- 
 forced wherever a well-regulated system of jurisprudence prevails.^ 
 One who has power, owing to the frailty of human nature, will 
 be too readily seized with the inclination to use the opportunity 
 for securing his own interest at the expense of that for which he is 
 entrusted. It has, therefore, been said that the wise policy of the 
 law has put the sting of disability into the temptation as a defen- 
 sive weapon against the strength of the danger which lies in the sit- 
 uation. This conflict of interest is the rock, for shunning which the 
 disability under consideration has obtained its force, by making 
 that person who has the one part entrusted to him incapable of act- 
 ing on the other side, that he may not be seduced by temptation 
 and opportunity from the duty of his trust. The law will in no case 
 permit persons who have undertaken a character or a charge to 
 change or invert that character by leaving it and acting for them- 
 selves in a business in which their character binds them to act for 
 others. The application of the rule may in some instances ap- 
 pear to bear hard upon individuals who had committed no moral 
 wrong ; but it is essential to the keeping of all parties filling a 
 fiduciary character to their duty to preserve the rule in its integ- 
 rity, and to apply it to every case which justly falls within 
 its principle.^ The principle generally applicable to all officers 
 
 1 City of Toronto v. Bowes, 4 Grant swamp lands before the department at 
 (Canada), 504. Washington, through Mr. S., who acted 
 
 2 Port V. Russell, 36 Ind. 60; s. c. 10 as her agent. A short time before 
 Am. Rep. 5 ; Board of Commrs. v. Riis- this contract was made Mr. S. in- 
 sell, 44 Ind. 509 ; s. c. 15 Am. Rep. 245 ; formed the authorities of tlie county that 
 Macon v. HufE, 60 Ga. 221 ; York Build- their claim had been rejected, and that 
 ing's Co. V, Mackenzie, 8 Brown, P. C. this rejection was accompanied by the 
 42 ; Liquidators, etc. v. Coleman, L. R. announcement of a rule which left but 
 6 H. L. C. 189 ; Aberdeen Railroad Co. little to hope for on the part of the 
 V. Blaikee. 1 Macq. App. Cases, 461. county. Very shortly after this Mr. 
 See full review of authorities in Gard- C, as the agent of the emigrant com- 
 ner v. Ogden, 22 N. Y. 332 ; Butts pany, made his appearance in Wright 
 V. Wood, 37 N. Y. 317, and cases County and procured tlie contract we 
 cited ; Emigrant Co. v. Wright Co., have mentioned. As soon as tlii# was 
 99 U. S. 339, 1877. In this case the done, Mr. S., as the agent of the emi- 
 Supreme Court of the United States, by grant company, by the assistance, as 
 Mr. Justice Miller, in declaring a contract he says, of able lawyers, and in the cases 
 void, say: "It appears that for some- of other counties with whom the com- 
 time before this contract was made the pany had similar contracts, inaugurated 
 county had been urging her claim to proceedings to procure the reversal of 
 
438 MUNICIPAL COKPOKATIONS. [CH. XIV. 
 
 and directors of a corporation is that they cannot enter into con- 
 tracts with such corporation to do' any work for it, nor can they 
 subsequently derive any benefit personally from such contract.^ 
 To deny the application of the rule to municipal bodies would, 
 in the opinion of the Canadian chancery court, be to deprive it 
 of much of its value ; for the well working of the municipal sys- 
 tem, through which a large portion of the affairs of the country 
 are administered, must depend very much upon the freedom from 
 abuse with which they are conducted. It is obvious that nothing 
 can more tend to correct the tendency to abuse than to make 
 abuses unprofitable to those who engage in them, and to have 
 them stamped as abuses in courts of justice. The tendency to 
 abuse may indeed be in part corrected by public opinion ; but 
 public opinion itself is acted upon by the mode in which courts 
 deal with such abuses as are brought within their cognizance. 
 It has been well observed that the view taken by courts of equity 
 with respect to morality of conduct among all parties is one of the 
 highest morality ; and this cannot fail to have a salutary effect 
 upon public opinion itself. Just as, on the other hand, if a low 
 standard of morality were presented by the courts, its inevitable 
 tendency would be the demoralization of the public feeling in re- 
 gard to transactions of a questionable character. Thus, where the 
 mayor of a city secretly contracted to purchase, at a discount, a 
 large amount of the debentures of the city, which were expected 
 
 the rule announced by the department, of the county were in gross ignorance of 
 Succeeding in this he presented the re- the nature and value of what they were 
 newed claim of Wright County, and se- selling ; that the emigrant company, on 
 cured the allowance of several hundred the other hand, were well informed in re- 
 acres still unsold in the county, and gard to both, and witliheld this informa- 
 money and scrip for six thousand acres tion unfairly from the officers of the 
 to be located elsewhere in lieu of swamp county. That the sudden change of the 
 lands sold by the government. It is not a relationship of Mr. S. from an unsao- 
 violent presumption, under all the circum- cessjul agent of the county to a success/id 
 stances of this case, that when, just after agent of the company requires an explanation 
 Mr. S. had made the impression on which has not been satisfactorily given. That 
 the supervisors of Wright County that the fact that all parties knew they were deal- 
 their case was hopeless, Mr. C. ap- ing with a trust fund devoted by the donor to 
 appeared in Wright County, he had some a specific purpose demanded the utmost good 
 information of a different character on faith on the part of the purchaser. That so 
 which he acted, and which was not com- far from this there is a provision for a di- 
 municated to the supervisors. We are version of the fund to other purposes, a 
 not convinced that any false representa- gross inadequacy of consideration, and a 
 tions were made by the agents or officers successful speculation at the expense of 
 of the emigrant company. But the im- the rights of the public." 
 pression made upon us by the whole ^ Cases, supra, note 2. 
 testimony is that the officers and citizens 
 
§ 445.] CONTRACTS. 439 
 
 to be issued under a future by-law of the city council, and was 
 himself afterwards an active party in procuring and giving 
 effect to the by-law which was subsequently passed, the court of 
 chancery held him to be a trustee for the city of the profit he de- 
 rived from the transaction.^ So, where a member of a municipal 
 corporation agreed with another party to take a contract from 
 the corporation for the execution of certain works in his name, the 
 profits whereof were to be divided between the parties, it was held 
 that such a contract was in contravention of the municipal law,, 
 and the court of chancery refused to enforce the agreement for a. 
 partnership.^ An action at law on a contract for the sale of 
 goods by a trading partnership, of which a member is also a mem- 
 ber of the municipal council, may, where the contract is not exe- 
 cuted, be resisted on the ground that one of the plaintiffs is a 
 member of the municipal council.^ 
 
 § 445. Public corporations may by their officers and properly 
 authorized agents make contracts the same as individuals and other 
 corporations, in matters that neeessari7«/ appertain to the corpora- 
 tion : being artificial persons, they cannot contract in any other 
 way. They have no power to limit their legislative discretion by 
 covenant. They may contract as individuals, but their I'egisla- 
 
 1 City of Toronto v. Bowes, 4 Grant mon law, which, on grounds of public 
 (Canada), 504. policy, prohibits a trustee from contract- 
 
 2 CoUinsB. Swindle, 6 Grant (Canada), ing with himself. Accordingly where the 
 282; Cumraings v. Saux, 30 La. An. 207. plaintiff, a member of the council, voted 
 
 3 Brown!;. Lindsay, 35 Upper Can. Q.B. for a resolution to appropriate money to 
 509. A contract made by a mayor, while celebrate the Fourth of July, under which 
 in office, with the city council, to lease a resolution a committee of the members- 
 city park for five years, and for an employed the plaintiff to furnish horses 
 annual sum paid him to keep the park in and carriages for the celebration, it was 
 repair, — Held, to be against public policy held (assuming the appropriation of 
 and void. Macon u. Huff, 60 Ga. 221. money for this purpose to be valid under- 
 But after such contract had been ratified the charter) that the plaintiff's employ- 
 by a subsequent mayor and council, and ment was against public policy and void, 
 large sums expended by the contractor and that he could not recover against the 
 in fencing, draining, and ornamenting the city for the fair value of the use of the 
 park, a court of chancery would not set horses and carriages furnished by him. 
 aside the contract without compelling the Smith v. Albany, 61 N. Y. 444, 1875. But a 
 city to do equity. lb. The New York contract entered into with an officer of 
 Commission of Appeals regarded an act the corporation, whereby such officer 
 of the legislature making it unlawful for agreed to keep the streets in repair, was 
 a member of the common council to be- held valid. Albright v. Town Council, 9 
 come a contractor under any contract Rich. (South Car.) Law, 399. See, also, 
 authorized by the council, and declaring Railroad Co. ». Claggett.Speers Eq. 562; 
 such contract to be void at the instance ante, sec. 283, note ; sec. 292 ; Lawrence 
 of the city, as but declaratory of the com- <,. Killam, 11 Kan. 499, 1873. 
 
440 MUNICIPAL CQEPORATIONS. [CH. XIV. 
 
 tive enactments must of necessity have the same effect upon their ' 
 individual contract as upon those of other persons, artificial or 
 natural, or of the general public.^ Public officers or agents are 
 held more strictly within their prescribed powers than private 
 general agents ; and a contract made by a public agent within 
 the general scope of his powers does not bind his principal in the 
 absence of specific authority.^ There is a broad distinction be- 
 tween the acts of an officer or agent of a public municipal corpor- 
 ation and those of an agent for a private individual. In cases of 
 -public agents the public corporation is not bound unless it manir 
 festly appears that the agent is acting within the scope of his au- 
 thority, or he is held out as having authority to do the act, or is 
 employed in his capacity as a public agent to make the declaration 
 or representation for the government.^ 
 
 § 446. Although the general doctrine is that a municipal cor- 
 poration cannot usually exercise its powers beyond its limits, yet 
 this right may be given either expressly or by implication ; and a 
 city with express authority to provide drainage was held, in the 
 absence of any restriction to possess the implied power, in order 
 to find an outlet for sewage beyond its limits, to make a contract 
 with an adjoining landowner giving it such an outlet.* 
 
 § 447. (372) If a municipal corporation is authorized to erect 
 markets, it may contract to buy, or maj' receive a grant of land, 
 on which to place market-buildings, and it may make contracts 
 for the erection of market-houses. As it is the general practice 
 in granting municipal charters and in general acts for the incor- 
 poration of towns and cities, to enumerate their powers and define 
 their duties, it will suffice in this place to remark generally that 
 the authority to enter into contracts necessary and proper to carry 
 into effect their powers and discharge their duties is impliedly 
 given to every such corporation. But this implied authority is 
 only co-extensive with the powers and duties of the corporation ; 
 and if any greater authority is claimed it must be sought for in 
 an express or special grant from the legislature. It is scarcely 
 necessary to observe that no contract can be made by a corpora- 
 
 ' L. City Railway Co. v. City of Louis- ' Mayor v. Musgrove, 48 Md. 272. 
 
 ville, 8 Bush (Ky.), 415, 1871. « Coldwater v. Tucker, 86 Mich. 474, 
 
 ' Parcel v. Barnes, 25 Ark. 261 ; Wil- 1877 ; s. o. 24 Am. Rep. 601. 
 liams 11. Payton's Lessee, 4 Wheat. 77. 
 
§447.] 
 
 CONTRACTS. 
 
 441 
 
 tion which is prohibited by its charter or by the statute law of the 
 state.' And it is a general and fundamental principle of law that 
 all persons contracting with a municipal corporation must, at their 
 peril, inquire into the power of the corporation or its officers to 
 make the contract ; and a contract beyond the scope of the cor- 
 porate power is void, although it be under the seal of the corpor- 
 ation.^ So, also, those dealing with the agent of a municipal 
 corporation are likewise bound to ascertain the nature and extent 
 of his authority. This is certainly so in all cases where this 
 authority is special and of record, or conferred by statute. The 
 fact in such a case that the agent made false representations in 
 relation to his authority aud what he had already done will not 
 aid those who trusted to such representations to establish a 
 liability on the part of his corporate principal.* 
 
 ' Jackson v. Bowman, 39 Miss. 671, 
 1861 ; Indianapolis v. Indianapolis Gas 
 Co., 66 Ind. 396, citing text. Contracts 
 to violate the charter, or to bargain away 
 or restrict the free exercise of legislative 
 discretion, vested in a municipality or its 
 officers, in reference to public trusts, are 
 void. 76. Thomas v. Richmond, 12 Wall. 
 349, 1870, in which notes issued by the 
 city to circulate as monej' in contraven- 
 tion of law were adjudged void, and the 
 city held not to be liable either in special 
 or general assumpsit. Ante, sec. 97, and 
 cases there cited ; jiost, sec. 487, and cases 
 cited. 
 
 ■■i Marsh v. Fulton County, 10 Wall. 
 676, 1870; ante, sec. 89; infra, sec. 456; 
 Leavenworth v. Rankin, 2 Kan. 357, 1864 ; 
 Wyandotte ». Zeitz, 21 Kan. 649 ; Horn v. 
 Baltimore, 30 Md. 218, 1868 ; Bridgeport 
 V. Railroad Co., 15 Conn. 475, 49.3, 1843; 
 Haynes v. Covington, 13 Sm. & Mar. (21 
 Miss.) 408, 1850; Taft v. Pittsford, 28 Vt. 
 (2 Wms.) 286, 1856; City Council v. 
 PlankRoad Co., 31 Ala. 76, 1857 ; Steam 
 Navigation Co. v. Dandridge, 8 Gill & J. 
 (Md.) 248, 319; Hodges v. Buffalo, 2 
 Denio (N. Y.), 110; Baltimore v. Escli- 
 bach, 18 Md. 276, 282, 1861 ; Baltimore «. 
 Reynolds, 20 Md. 1 ; Dill v. Inhabitants, 
 etc., 7 Met. (Mass.) 438, 1844 ; Branhara 
 V. San Jose, 24 Cal. 585, 602; McCoy v. 
 Brnnt, 53 Cal. 247, approving text; Stur- 
 tevant v. Alton, 3 McLean, 393, 1844; 
 Wallace v. San Jose, 29 Cal. 180 ; State 
 r. Mayor, 29 Md. 85, 111, 1868; Bateman 
 o. Mayor, etc., 3 Hurl. & Nor. 323; State v. 
 
 Haskell, 20 Iowa, 276 ; Baltimore v. Mus- 
 grave, 48 Md. 472 ; People v. Baraga, 39 
 Mich. 554; Neely v. Yorkville, 10 So. 
 Car. 141, approving text ; Bryan v. Page, 
 51 Tex. 532 ; Baby «. Baby, 6 Upper Can. 
 Q. B. 510 ; Richmond v. Municipality, 8 
 Upper Can. Q. B. 567 ; Campbell v. Elma, 
 13 Upper Can. C. P. 296; Stanley </. 
 Perry, 23 Grant, 507 ; Craycraft, etc. v. 
 Selvage, etc., 10 Bush (Ky.), 696, 1874; 
 Treadway t>. Schnauber, 1 Dak. Ter. 236. 
 Within the scope of its power a corpora- 
 tion may contract to do an act at any place 
 other than the one where it is located. 
 Bank of Utica v. Smedes, 3 Cow. (N. Y.) 
 662; Maddox v. Graham, 2 Met. (Ky.) 56. 
 Or prospective in its terms. Davenport v. 
 Hallowell, 10 Me. 317. As to corporate 
 seal. Ante, sec. 190. Where a public cor- 
 poration, transcending its legal power, 
 assumes to direct its officers — for exam- 
 ple, commissioners of highways — to 
 bring an action in their own names, or in 
 their name of office, against third persons 
 for trespasses upon the highways, and the 
 action is accordingly brought and the 
 officers are defeated, they cannot sustain 
 an action against the corporation to be 
 reimbursed their costs and expenses ; and 
 the reason is, that the action of a corpo- 
 ration directing such a suit to be brought, 
 being in excess of its lawful power, is 
 void, and cannot be the foundation of any 
 contract, express or implied. Cornell v. 
 Guilford, 1 Denio (N. Y.), 510; ante, sec. 
 147. 
 
 * Baltimore v. Eschbach, 18 Md. 276, 
 
442 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. XIV. 
 
 § 448. Although it is true, as stated in the last section, that a 
 contract made by a municipality in violation of an express legis-. 
 lative prohibition is void, yet, in the absence of special legislative 
 restriction, the municipal authorities possess the same power as 
 other debtors to make a new contract, in any proper form, purging 
 the former contract of its illegality. This principle is distinctly 
 affirmed and well illustrated in a recent judgment by a court of 
 the highest authority. A city, in violation of local statutes for- 
 bidding the issue, circulation, or re^ipt of scrip or currency in- 
 tended to circulate as money, issued such currency, engraved 
 in the similitude of bank-paper, and by means thereof paid valid 
 debts against itself ; subsequently the holders of this illegal cur- 
 rency, at the instance of the city, surrendered the same, and 
 received therefor new obligations of the city in the form of bonds, 
 to which there was no legal objection except that the consider- 
 ation was illegal; it was held by the Supreme Court of the United 
 States that the city was liable on the new bonds.^ 
 
 282; Baltimore v. Reynolds, 20 Md. 1, 
 1862 ; Delafield v. State of Illinois, 2 
 Hill (N. Y.), 159, 174 ; 26 Wend. (N. X.) 
 192, 1841 ; affirming a. c, 8 Paige, 531, re- 
 straining unauttiorized sale of bonds. 
 Hodges V. Buffalo 2 Denio (N. Y.), 110 ; 
 3 Comst. 430 ; 2 Barb. 104 ; Supervisors, 
 etc. ». Bates, 17 N. Y. 242, 1858. This 
 case also determines how far, in such a 
 case, the sureties of such an' agent or 
 officer are liable for his acts. And see 
 cases cited lb. p. 245. Chemung Canal 
 Bank v. Supervisors, 5 Denio (N. Y.), 
 517, 1848; Overseers, etc. v. Same, 15 
 (N. Y.) 341 ; 2 Comst. 178, per Strong, 
 J. ; Marsh v. Fulton Co., 10 Wall. 676, 
 1870; Miners' Ditch Co. v. Zellerbach, 
 37 Cal. 54.3, 1869; Swift v. Williams- 
 burg, 24 Barb. (N. Y.), 427 ; Hague 
 V. Philadelphia, 48 Pa. St^527; State v. 
 Mayor, etc. 29 Md 85. Ill ; Horn v. Bal- 
 timore, 30 Md. 218, 1868; Thomas «. 
 Richmond, 12 Wall. 349, 1870, per Brad- 
 ley, 3. ; Ford v. Mayor, etc. of New York, 
 63 N. Y. 640, 1875 ; Stoneburgh v. Brigh- 
 ton, 5 Up. Can. Tj. J. 38. 
 
 Special and limited authority to bor- 
 row money conferred upon the town treas- 
 urer, when exercised is exhausted, and 
 the town is not liable for money he sub- 
 sequently borrows and converts to his 
 
 own use, although he assumed to act, 
 and was, by the lender, supposed to be 
 acting under the authority conferred 
 upon him. Savings Bank v. Winchester, 
 8 Allen (Mass.), 109, 1864 ; ante, sec. 117. 
 
 So in Upper Canada it is held that an 
 individual, dealing with a corporation 
 through its council or the members of the 
 governing body, is bound to notice the 
 objects and limits of their powers and 
 the manner in which those powers are to 
 be exercised ; and it should be borne in 
 mind that their acts, when beyond the 
 scope of their authority or done in a 
 manner unauthorized, are in general nu- 
 gatory and not binding on the corpora- 
 tion. Ramsay et al. «. The Western 
 District Council, 4 Upper Can. Q. B. 
 374 ; Harr. Manual, 2 ed. p. 20. 
 
 1 Little Rock (city of) i>. National 
 Bank, 98 U. S. 308, 1878 ; 8. c. below, 
 5 Dillon, 299. The statement of the 
 text as to the substance of the statutes 
 of Arkansas in this regard is correct. 
 Mr. Justice Hunt supported the judg- 
 ment of the Supreme Court of the United 
 States by the following argument : — 
 
 " It can scarcely be doubted that who- 
 ever is capable of entering into an ordi- 
 nary contract to obtain or receive the 
 means with which to build houses or 
 
§449.] 
 
 CONTKACTS. 
 
 443 
 
 § 449. (373) Mode of exercising the Power. — Respecting the 
 mode in which contracts by corporations should be made, it is im- 
 portant to observe that when, as is sometimes the case, the mode 
 of contracting is specially and plainly prescribed and limited, 
 that mode is exclusive, and must be pursued, or the contract will 
 not bind the corporation ;^ but the courts have sometimes regarded 
 
 wharves or the like may, as a general 
 rule, bind himself by an admission of 
 his obligation. The capacity to make 
 contracts is at the basis of the liability. 
 The first liability of the city was dis- 
 puted by it. It had gone beyond its 
 power, as it said, in making a debt in the 
 form of bank-notes. If it had not denied 
 its power, judgment and an execution 
 might have gone against it, and the cred- 
 itor would have obtained his money. 
 This privilege of non-resistance every 
 person retains, and continues to retain. 
 He can reconsider at any time, and con- 
 fess and admit what the moment before 
 he denied. In 1874 the city of Little 
 Rock did reconsider. It said, ' We will 
 purge the transaction of its illegality. 
 We had the authority to accept from you 
 in satisfaction of amounts received by 
 us for legitimate purposes the sums in 
 question. We did so receive and ex- 
 pend for legitimate purposes. We erred 
 in making the payment to you in an ob- 
 jectionable form. We now pay our just 
 and lawful debt by cancelling the bank- 
 notes issued by us, and delivering to you 
 obligations in the form of bonds, to which 
 form there is no legal objection.' Hitch- 
 cock V. Galveston, 96 U. S. 350; Mayor 
 V. Ray, 19 Wall. 468; Police Jury v. 
 Britton, 15 Wall. 570 ; Mullaky v. Cedar 
 Falls, 19 Iowa, 24; Sykes v. Laffery, 
 27 Ark. 407 ; Wriglit v. Hughes, 13 Md. 
 113, are authorities to the point. See 
 also the numerous cases' cited in sec. 
 487, n. post. If the city had borrowed 
 81,000 of the bank upon its note at an 
 usurious interest, but the bank had sub- 
 sequently cancelled the illegal note, had 
 refunded the excessive interest, and re- 
 ceived a new note for a lawful amount, 
 the new note would be valid and collect- 
 able. Miller v. Hull, 4 Denio (N. Y.), 
 144; Kent v. Walton, 7 Wend. (N. Y.) 
 256. So where the consideration of a con- 
 tract declared void by statute is morally 
 
 good, a repeal of the statute will validate 
 the contract. Washburn v. Franklin, 35 
 Barb. (N. Y.) 597; 13 Abb. P. R. 140, 
 same case. " 
 
 ' People V. Weber, 89 III. 347 ; Bryan 
 V. Page, 51 Tex. 632, approving text; 
 Francis v. Troy, 74 N. Y. 338 ; State v. 
 Passaic, 41 N. J. L. 90 ; Perrine v. Farr, 
 2 Zab. (22 N. J. L.) 356; Canon v. Mar- 
 tin, 2 Dutch. (N.J.) 594 ; State v. Hudson, 5 
 Dutch. (N.J.) 104 ; State w.Marion County, 
 21 Kan. 419 ; Garvey, in re, 77 N. Y. 523 ; 
 Smith i;. Ngwburgh, 77 N. Y. 130 ; Allen 
 V. Galveston, 61 Tex. 302 ; Dore v. Mil- 
 waukee, 42 Wis. 18 ; Butler v. Nevin, 88 
 111. 575 ; Kansas City v. Flanagan, 69 Mo. 
 22 ; Bently v. County Commrs , 25 Minn. 
 259 ; Fulton v. Lincoln, 9 Neb. 358; Hur- 
 ford V. Omaha, 4 Neb. 350 ; Reis v. Graff, 
 51 Cal. 86; Addis v. Pittsburgh, 85 Pa. 
 St. 389; McDonald «. Mayor, etc. of New 
 York, 08 N. Y. 23, 1876 ; s. c. 23 Am. Rep. 
 144 ; Leavenworth v. Rankin, 2 Kan. 357; 
 McCoy V. Brant, 53 Cal. 247, approving 
 text; Murphy v. Louisville, 9 Bush (Ky.), 
 189, 1872; post, sec. 481, note; Mont- 
 gomery County V. Barber, 45 Ala. 237 ; 
 Terre Haute w. Lake, 43 Ind. 480 ; Head 
 V. Insurance Co., 2 Cranch (U. S.), 127, 
 1804 ; Wliite v. New Orleans, 15 La. An. 
 667 ; infra, sec. 466 ; Dey v. Jersey City, 
 19 N. j. Eq.412, 1869; Baltimore v. Rey- 
 nolds, 20 Md. 1. Speaking of this sub- 
 ject in the case first cited, Marshall, C. J., 
 says : " The act of incorporation is to 
 them an enabling act; it gives them all 
 the power they possess ; it enables them 
 to contract, and when it prescribes to them a 
 mode of contracting, they must observe that 
 mode, or the instrument no more creates 
 a contract than if the body had never 
 been incorporated." Approved, Bank of 
 United States v. Dandridge, 12 Wheat. 
 64, 68, 1827; see, also, Angell & Ames 
 Corp. sec. 253 ; Diggle v. Railway Co., 5 
 Exch. 442 ; Homersham v. Wol. etc. Co., 
 4 Eng. Law & Eq. 426 ; Frend v. Dennett, 
 
444 MUNICIPAL CORPORATIONS. [OH. XIV. 
 
 provisions on this subject as directory. Thus, where the charter 
 directed the mode in which moneys should be drawn from the 
 treasury to be by an order of the council, signed by the mayor, 
 such an order, issued upon a memorandum in the minutes of the 
 corporation, without a formal order being entered, was adjudged 
 a suflBcient compliance with the charter.^ But unless the mode be 
 prescribed and limited, valid contracts within the scope of the 
 corporate powers may be made, as we shall see, otherwise than 
 under seal or in writing. A conti»ct with a municipal corpor- 
 ation, which by its terms is not to be performed within one year 
 from the making thereof is within the statute of frauds ; but an 
 entry in the oflBcial minutes of the corporation of a resolution 
 passed by the governing body expressing the terms of the con- 
 tract, signed by the clerk, constitutes a note or memorandum in 
 writing sufficient to take the case out of the statute and to bind 
 the corporation. 2 
 
 § 450. (374) Seal not Necessary — How concluded. — Modern 
 decisions have established the law to be, that the contracts of mu- 
 nicipal corporations need not be under seal unless the charter so 
 requires. The authorized body of a municipal corporation may 
 bind it by an ordinance, which in favor of private persons in- 
 
 4 C. B. (N. S.) 576; Butler v. Charles- such contract, nor would the law imply 
 
 town, 7 Gray (Mass.), 12; Trustees v. any such contract : the law never implies 
 
 Cherry 8 Ohio St. 564, 1858; Bladen v. an obligation to do that which it forbids 
 
 Philadelphia, 60 Pa. St. 464; McCracken the party to agree to do. Bryan v. Page, 
 
 V. San Francisco, 16 Cal. 591; Piemental 51 Tex. 532; a. p. Francis v. Troy, 74 
 
 o. San Francisco, 21 Cal. 351 ; Zottraan v. N. Y. 338. 
 
 San Francisco, 20 Cal. 96 ; Argenti v. ' Kelly ». Mayor, etc. of Brooklyn, 4 
 
 San Francisco, 16 Cal. 255, 282, opinion Hill (N. Y.), 263, 1843; see Neiffer v. 
 
 of Field, C. 3.; post, chsipter on Taxation Bank, 1 Head (Tenn.), 162; Penrose v. 
 
 and Local Assessments. If a corporation Taniere, 12 Queen's B. 1011; Maddox 
 
 sue upon a contract, though it be execu- v. Graham, 2 Met. (Ky.) 56; ante, sec. 
 
 tory on their part, and not executed, this 291. Under charter executory contracts 
 
 amounts to a conclusive admission that for grading, etc., must be in writing, 
 
 the contract was duly entered into by Starkey v. Minneapolis, 19 Minn. 203, 
 
 them. Grant on Corp. 68; 5 Man. & 1872. 
 
 Granger, 192. A contract by a city with ' Argus Co. v. Albany, 55 N. Y. 495, 
 
 a street railway company held not con- 1874, Grover and Rapallo, 33. dissenting, 
 
 eluded, something remaining to be done. Municipal corporations may contract by 
 
 People's Railroad v. Memphis Railroad, parol through their duly authorized 
 
 10 Wall. 38. Where a charter limits the agents, and such contracts cannot be 
 
 exercise of power the mayor and council changed without the consent of the par- 
 
 cannot, in a different mode, make a valid ties to be aSected thereby. Dunoombe 
 
 contract, nor can they, by any subsequent v. The City of Fort Dodge, 38 Iowa, 281, 
 
 approval or conduct, impart validity to 1874. 
 
§ 451.] 
 
 CONTRACTS. 
 
 445 
 
 terested therein may, if so intended, operate as a contract ; or 
 they may bind it by a resolution, or by vote clothe its officers, 
 agents, or committees, with power to act for it ; and a contract 
 made by persons thus appointed by the corporation, though by 
 parol (unless it be one which the law requires to be in writing)» 
 will bind it.^ 
 
 § 451. (375) The assent of a municipal corporation to the vari- 
 ation or modification of a contract need not necessarily be expressed 
 
 1 Fanning v. Gregoire, 16 How. (U. S.) 
 524, 1853; ante, sec. 192; Abbey v. Bil- 
 lups, 35 Miss. 618; Alton v. Mulledy, 
 21 III. 76, 1859 ; Western, etu. Society v. 
 Philadelphia, 31 Pa. St. 175 ; 76. 185 ; 
 Clark V. Washington, 12 Wheat. 40, 1827 ; 
 Hamilton v. Railroad Co., 9 Ind. 359, 
 1857; Ross v. Madison, 1 Ind. (Cart.) 
 281, 1848 ; Bellmyer v. Marshalltown, 44 
 Iowa, 564, 1876. Not essential that vote 
 of directors appear on the record. Story 
 Agency, sec. 52, where it is said that, " as 
 the appointment of an agent of a corpora- 
 tion may not always be evidenced by 
 written vote, it is now the settled doctrine 
 — at least in America — that it may be 
 inferred and implied from the adoption 
 or recognition of the acts of the agent by 
 the corporation." Infra, sec. 459. And 
 when this is the case an action of assump- 
 sit lies against such corporation upon an 
 express or implied promise. Parol con- 
 tract by council with city physician. 
 Selma v. Mullen, 46 Ala. 411, 1871. See, 
 also. Broom Com. on Com. Law, 561-570; 
 Montgomery Co. v. Barber, 45 Ala. 237, 
 1877. 
 
 In Fleckner v. United States Bank, 
 8 Wheat. (U. S ) 338, 357, 1823, it was 
 urged that a corporation could not author- 
 ize any act to be done by an agent by a 
 mere vote of the directors, but only by an 
 appointment under its corporate seal. But 
 the court declared that such a doctrine, 
 whatever may have been its original cor- 
 rectness as applied to common-law corpo- 
 rations, had "no application to modern 
 corporations created by statute, whose 
 charters contemplate the business of the 
 corporation to be tr'ansacted by a special 
 body or board of directors. And the acts 
 of such a body or board, evidenced by a 
 written vote, are as completely binding 
 
 upon the corporation, and as complete 
 authority to their agents, as the utmost 
 solemn acts done under the corporate 
 seal." Per Stoi-y, 3. Further, as to com- 
 mon seal, see ante, sec. 190. Authority 
 of agent, in absence of special restriction, 
 may be given by parol or inferred from 
 acts. Detroit v. Jackson, 1 Doug. (Mich.) 
 106. See ante, sec. 190 ; infra, sec. 459. 
 
 A provision in the organic act of a 
 city, that " on tlie passage of every by- 
 law or order to enter into a contract by 
 the council, the ayes and nays shall be 
 called and recorded," prescribes how the 
 order to contract shall be made and evi- 
 denced when directed by the council, but 
 it is not a limitation on the power of au- 
 thorized agents to make a contract by 
 parol. Indianola v. Jones, 29 Iowa, 282, 
 1870; ante, sec. 291; Baker v. Johnson 
 Co. (parol contract), 33 Iowa, 161. 
 
 Contract may be concluded by ordinance 
 or action of the council (accepting pro- 
 posals), without signature by parties. 
 People V. San Francisco, 27 Cal. 655, 
 1865; Sacramento v. Kirk, 7 Cal. 419; 
 Logansport v. Blakemore, 17 Ind. 318. 
 How shown. San Antonio v. Lewis, 
 9 Texas, 69. In Indianopolis v. Skeen, 
 17 Ind. 628, 1861, it was held that third 
 persons dealing with an agent of the city 
 appointed by the council " to negotiate its 
 bonds at not less than " a specified rate, 
 were not obliged to look to the records of 
 the council for either his appointment or 
 his instructions, since they were not ne- 
 cessarily of record there ; but persons deal- 
 ing with such an agent are, of course, 
 bound to ascertain the fact of his appoint- 
 ment and the extent of his authority, but 
 not his private instructions. Authority 
 of agent to negotiate sales of bonds. Cady 
 e. Watertown, 18 Wis. 822. 
 
446 
 
 MUNICIPAL COBPORATIONS. 
 
 [CH. XIV. 
 
 by the formal action or resolution of the common council ; but 
 it may be implied from acts relating to the contract work subse- 
 quent to the date of the contract ;.i but where the contract is 
 made by ordinance in the statutory mode, it can only be repealed 
 or annulled in the same manner.^ 
 
 § 452. (876) Contracts made by Agents — Mode of Execution. 
 Where officers or agents of a corporation, duly appointed, and 
 acting within the scope of their authority in executing an instru- 
 ment in behalf of the corporation, sign their own names and affix 
 their own seals, such seals are simply nugatory, and the instru- 
 ment, according to the weight of modern judicial opinion, is to 
 be regarded as the simple contract of the corporation, and will bind 
 the corporation and not the individuals executing it, where the 
 puipose to act for the corporation is manifest from the whole 
 paper, and where there are no words evincing an intention to 
 assume a personal liability.^ 
 
 1 Messenger v. Buffalo, 21 N. Y. 196, 
 1860. Where certain work is stipulated 
 to be done under the direction of a street 
 commissioner of a city, this officer has 
 authority, without a vote of the council, 
 to authorize extra work to be done, or ma- 
 , terials to be furnished, where these are 
 rendered necessary by the action of the 
 city authorities subsequent to the making 
 of the contract, and where, without such 
 extra work or materials, it would be im- 
 possible to fulfil the requirements of the 
 contract. lb. Modification of contracts 
 by unauthorized officers not binding upon 
 the corporation. Bonesteel v. Mayor, etc. 
 of New York, 22 N. Y. 162, 1860 ; Hague 
 V. Philadelphia, 48 Pa. St. 527 ; O'Hara 
 V. New Orleans, 30 La. An. pt. 1, 152. 
 As to changes in contracts by parol, see 
 Hasbrouck v. Milwaukee, 21 Wis. 217, 
 1866 ; compare Sacramento v. Kirk, 7 
 Cal. 419 ; irifra, sec. 459. Acceptance by 
 city of proposals to it, see Springfield v. 
 Harris, 107 Mass. 532, 1871. 
 
 Defendant's council passed a resolu- 
 tion ordering the public square to be 
 graded, and plaintiff, under an agreement 
 with defendant's officers, advanced the 
 money for the work, which was done in 
 a satisfactory manner. Held, that a sub- 
 sequent resolution, of which plaintiff had 
 
 no notice, limiting the expenditure, would 
 not defeat recovery of an amount ex- 
 pended in excess of that limit. Dun- 
 combe V. Fort Dodge, 38 Iowa, 281, 1874. 
 2 Terre Haute v. Lake, 43 Ind. 480, 
 1873. 
 
 3 Regents, etc. v. Detroit, etc., 12 Mich. 
 138; Sweetzer v. Mead, 5 Mich. 107; 
 Bank of Metropolis v. Gottschalk, 14 Pet. 
 19; Story Agency, sees. 154, 260,276, 
 277 ; Bank of Columbia v. Patterson, 7 
 Cranch, 299, 307 ; Hatch o. Barr, 1 Ham. 
 (Ohio) 390; Baker v. Chambles, 4 G. 
 Greene (Iowa), 428 ; Lyon v. Adamson, 
 7 Iowa, 509; 1 Am. Lead. Gas. 602 ; Mott 
 ^. Hicks, 1 Cow. (N. Y.) 513, 534; Blan- 
 chard v. Blackstone, 102 Mass. 343 ; Stan- 
 ton V. Camp (contract signed individually 
 with addition of "committee"), 4 Barb. 
 (N. Y.) 274; Mechanics' Bank v. Bank 
 of Columbia, 5 Wheat. 326 ; Hopkins v. 
 Mehaffy, 11 Serg. & Rawle (Pa.), 126 ; 
 Angell & Ames, sees. 293, 295 ; Gale v. 
 Kalamazoo, 23 Mich. 344, 1871 ; Burrillo. 
 Boston, 2 Clifford C. C. 590, 1867. Where 
 a town clothes its agent, or its committee, 
 with full power to make a contract, and 
 it is accordingly made, it is valid and 
 binding, notwithstanding there has been 
 no formal acceptance by a vote, or even if 
 it be afterwards rejected by the corpo- 
 
§ 453.] 
 
 CONTRACTS. 
 
 447 
 
 § 453. (377) A few cases will be referred to, illustrating the 
 rule just stated. A contract in relation to the survey of a city, a 
 subject exclusively appertaining to the corporation, was entered 
 into " between T. Van V., J. W., C. D. C, a committee appointed 
 by the corporation of the city of Albany for that purpose, of the 
 first part, and John R. Jr., of the second part." The parties of 
 the first part agreed to pay for the work to be done, and signed 
 their individual names and aflBxed their individual seals to the 
 agreement. The authority oi the committee to act for the cor- 
 poration and to make the contract being conceded, it was ruled 
 that they were not personally liable, and that it must be enforced 
 by and against the corporation.^ In another case, a contract for 
 
 ration. Davenport v. Hallowell, 10 Me. 
 817 ; Junkins v. School District, 39 Me. 
 220, 1855; Willard v. Newbury port, 12 
 Pick. (Mass.) 227 ; Kingsbury v. School 
 District, 12 Met. (Mass.) 99, 1846. 
 
 Where school directors gave an au- 
 thorized bond for borrowed money, in 
 their individual names, as school direct- 
 ors, though signed and sealed in their in- 
 dividual names, tlie corporation, and not 
 the individuals, are liable thereon. Heid- 
 elberg School Dist. V. Horst, 62 Pa. St 
 301, 1869. 
 
 The power of a committee, appointed by 
 a vote of a town, " to let out and super- 
 intend the making " of a highway, is com- 
 pletely executed by the making of a 
 contract with a third person embracing 
 the whole subject-matter of the vote and 
 by the superintending of the construc- 
 tion of the highway. And therefore, if 
 the person contracted with fails to com- 
 plete the road according to his contract, 
 this is a matter for the town to deal with, 
 and the committee have no power, with- 
 out new authority from the town, to enter 
 into a contract with another person for 
 its completion. If they do so^ and pay 
 money in pursuance thereof, the town is 
 not liable to them therefor. Nor is it liable 
 if they transcend their power, and make 
 a contract for a more expensive road than 
 they were authorized to do. Keyes v. 
 Westford, 17 Pick. (Mass.-) 273, 1886. 
 
 Power to a town committee " to superin- 
 tend the building of a house for the town," 
 was adjudged to include the power to 
 make the necessary contracts, it not ap- 
 pearing that any other or special com- 
 
 mittee or agent was appointed for that 
 purpose, the court being of opinion that 
 the making of contracts was essential to 
 the building of the house. Damon v, 
 Granby, 2 Pick. (Mass.) 345, 1824; ante, 
 chs. ix., X. Majority of committee must 
 sign contract. So held, Curtis i;. Portland, 
 59 Me. 483, 1871 ; ante, sec. 283 and note. 
 
 It has been held in Upper Canada, 
 where work was done under a contract 
 not made with the corporation, or any of 
 its known oflScers, but merely with per- 
 sons assuming to act as a duly appointed 
 committee, that no action would lie 
 against the corporation. Stoneburgh •>. 
 The Municipality of Brighton, 5 Upper 
 Can. Law J. 38. No action can be sus- 
 tained for a breach of duty against the 
 head of a corporation in not applying the 
 seal to make a contract between a corpo- 
 ration and an individual, founded on a 
 refusal which, if there had been a pre- 
 vious valid contract, would have const^ 
 tuted a breach of it ; in other words, there 
 cannot be a remedy against the head of a 
 corporation, equivalent to a remedy on 
 the contract against the corporation, had 
 the contract been duly made so as to 
 create a valid and binding agreement. 
 Fair v. Moore, 3 Upper Can. C. P. 484 ; 
 Harrison Munic. Manual for Upper Can. 
 p. 20. 
 
 1 Randall v. Van Vechten, 19 Johns. 
 (N. Y.) 60, 1821 ; compare, however, Ful- 
 1am V. Brookfield, 9 Allen (Mass.), 1, 
 1864, where the court denies the doctrine 
 of Randall v. Van Vechten ; Bank, etc. v. 
 Patterson, 7 Cranch, 299, and certain dicta 
 in Damon v. Granby, 2 Pick. (Mass.) 345. 
 
448 MUNICIPAL CORPORATIONS. [CH. XTV. 
 
 the repair of an engine house of a city was entered into by the 
 inspector of the fire department in his own name, describing him- 
 self as " G. N. S., inspector, etc., of the first part," and signed in 
 the same way. It was, in fact, made for and on account of the 
 city, and it was held that the city was liable thereon, although 
 its agent did not use its name in contracting, the court being of 
 opinion, however, that the contract on its face showed it was 
 made for the city.^ 
 
 § 454. (378) So, where on a sale of real property by a corpo- 
 ration, a memorandum of the sale was signed by the parties, on 
 which it was stated that the sale was made to A. B., the pur- 
 chaser, and that he, C. D., " mayor of the corporation, in behalf 
 of himself and the rest of the burgesses and commonalty of the 
 borough of Caermarthen, do mutually agree to perform and fulfil, 
 on each of their parts respectively, the conditions of the sale," 
 and then came the signature of the purchaser, and of " C. D., 
 Mayor," it was held that the agreement was that of the corpora- 
 tion, and not that of the mayor personally ; and that, conse- 
 quently, the mayor could not sue thereon.^ 
 
 But the text states the prevailing Ameri- board to advertise for proposals for grad- 
 can rule. See also Dubois v. Canal Co., ing and paving any sidewalk, and to 
 4 Wend. (N. Y.) 285 ; Worrell v. Munn, award any contract therefor to the lowest 
 1 Seld. (5 N. Y.) 229; Ford v. Williams, bidder. In an action by P. for labor and 
 3 Kern. (13 N. Y.) 577, 585; Richardson materials, in pursuance of the resolution, 
 a. Scott, etc. Co., 22 Cal. 150. etc. — HM, 1. That no abandonment of 
 ' Bobinson e. St. Louis, 28 Mo. 488, the contract was established. 2. That 
 1859. Where the corporate name of a the contract was not affected by the sub- 
 village was " the president and trustees sequent amendment. 3. That the reso- 
 of the village of G.," a contract reciting lution was illegal, and no recovery could 
 that it was made by the president and be had by F. for the gravel and grading 
 trustees of the " corporation " of G — , either upon contract or upon the guanlum 
 Held, to warrant a finding that the con- meruit. lb. Where A., B., and C, a 
 tract was made by the board officially, committee appointed by a meeting of 
 Parr v, Greenbush, 72 N. Y. 463. In 1870 citizens, make a contract with B., signing 
 a village board, without advertising for the contract as a committee, and affixing 
 proposals, contracted with P. to lay a side- their seals, thereto, they make themselves 
 walk in May, 1871 ; the work, however, personally liable under the contract. The 
 did not proceed, owing to the failure of only effect of the word " committee " is 
 the board to furnish the gravel and grad- like that of " executor " in a personal 
 ing as required by the contract and P.'s obligation, to identify the transaction, not 
 notification. In 1878 the board passed a to qualify the act. Ulam v. Boyd, 87 Pa. 
 resolution requiring P. to go on, and if the St. 477. ' 
 
 necessary gravel and grading be not fur- * Bowen v. Morris, 2 Taunt. 874, 387. 
 
 nished, to furnish the same himself; The case of Burrill v. Boston, 2 Clifibrd 
 
 whereupon he furnished the materials and C. R. R. 590, 1867, presents also an in- 
 
 did the work. In 1871 the village char- stance in which it was considered that a 
 
 ter was so amended as to require the contract signed by the mayor was one in- 
 
§ 456.] CONTRACTS. 449 
 
 § 455. (379) But the action or contract of the ofEcers of a 
 public corporation in their individual capacity is not binding 
 upon the corporate body.' For example : If the selectmen of a 
 town in New England, as individuals, request a citizen to furnish 
 supplies to a public enemy, to prevent violence to the town, this 
 gives no legal right of recovery against the town ; and as the 
 transaction was wholly beyond the official duty of selectmen, or 
 the duty of the town as a corporation, it was doubted whether a 
 regular vote to pay the plaintiff would have been legal, though 
 it was admitted that a voluntary agreement among the inhabi- 
 tants to this effect would have been binding, being founded on a 
 meritorious considei'ation, as it was their property, and not that 
 of the town, which was in danger.^ 
 
 § 456. (380) While the agent of a public corporation, who by 
 its vote or authority contracts for its use, cannot bind the cor- 
 poration by making a contract hy deed, yet if such agent had 
 authority to make the contract, it is binding upon the corpora- 
 tion as evidence of such contract. It follows that a contract of an 
 agent or committee of a town, under his or their own seals, can- 
 not be declared on, in covenant or debt, as the deed of the town. 
 
 tended to be made on behalf of the cor- proof that another selectman authorized 
 
 poration. But in Providence v. Miller, him so to sign the contract, or by proof 
 
 11 Rh. Is. 272, 1876; s. c. 23 Am. Rep. that such was the practice in tlie town. 
 
 453, a contract under seal between cer- If the corporate name had been affixed by 
 
 tain persons of the first part and one one, such proof might have been suffi- 
 
 Doyle " in behalf of the city," party of cient. Andover v. Grafton, 7 N. H. 298, 
 
 the second part," Doyle being the mayor, 305 ; Mason u. Bristol, 10 N. H. 36 ; Han- 
 
 and the contract relating to municipal over a. Eaton, 3 N. H. 38. Powers of 
 
 matters, was held upon its face to be the towns in New England. Ante, sees. 29, 
 
 contract of Doyle personally and not 30. 
 that of the city. Contracts made by a majoriti/ of the 
 
 1 Haliburton i>. Frankford, 14 Mass. board of aldermen, without any official ao- 
 
 214,1817; Butler ». Charlestown, 7 Gray t/on of the city council, are not binding 
 
 (Mass.), 12, 1856. upon the city ; so decided where counsel 
 
 * Haliburton v. Frankford, supra ; were thus employed who rendered legal 
 
 Stetson V. Kempton, 13 Mass. 272, 1816 ; services beneficial to the corporation. 
 
 Burrill v. Boston, 2 CliflTord C. C. R. 590, Butler v. Charlestown, 7 Gray (Mass.), 
 
 1867 ; ante, sec. 30. A majority of se- 12, 1856 ; see, also, Sikes v. Hatfield, 13 
 
 lectmen may, by statute, bind a town in Gray (Mass.), 347, 1859 ; see chapter on 
 
 New Hampshire by their written con- Corporate Meetings, ante. A contract 
 
 tract when acting within the limits of entered into by a board of supervisors, 
 
 their authority. But a contract signed for and on behalf of the county, and 
 
 by one only of the selectmen in his own signed by the chairman of the board, is 
 
 name, " for the selectmen," does not bind the contract of the county. Babcock v. 
 
 the town, nor will it be rendered valid by Goodrich, 47 Cal. 488, 1874. 
 
 VOL. I. 29 
 
450 MUNICIPAL COEPORATIONS. [CH. XIV. 
 
 The form of the remedy against the town ^ is for damages, or in 
 assumpsit. Although in Damon v. Granby ^ it was left an open 
 question whether a vote of a town having no corporate seal, 
 expressly authorizing an agent to make a deed of land, or other 
 contract, under seal, would, if executed according to the power, 
 become technically the deed of the town, no substantial reason 
 is perceived why such an instrument, thus executed, should not 
 be treated as having all the attributes and qualities of a sealed 
 instrument. If the corporation, ifcowever, has a common seal, 
 which is the case with towns in many of the states, and with 
 cities generally, and it is affixed to an instrument in pursuance 
 of the vote of the corporation, or by the proper officer, such an 
 instrument is, beyond doubt, technically the deed of the corpo- 
 ration.* 
 
 § 457. (381) Contracts in Excess of Corporate Power — Ultra 
 Vires a« a Defence. — The general principle of law is settled 
 beyond controversy, that the agents, officers, or even city council 
 of a municipal corporation, cannot bind the corporation by any 
 contract which is bejond the scope of its powers, or entirely 
 foreign to the purposes of the corporation, or which (not being 
 in terms authorized) is against public policy. This doctrine 
 grows out of the nature of such institutions, and rests upon rea- 
 sonable and solid grounds. The inhabitants are the corporators : 
 the officers are but the public agents of the corporation. The 
 duties and powers of the officers or public agents of the corpora- 
 tion are prescribed by statute or charter, which all persons not 
 only may know, but are bound to know. The opposite doctrine 
 would be fraught with such danger and accompanied with such 
 
 ' Kandall v. Van Vechten, 19 Johns. Keeney v. Hudson, 3 Dutch. (N. J.) 
 
 (N. Y.) 60, 65, 1821 ; Damon v. Granby, 362; ante, sec. 192; Providence v. Miller, 
 
 2 Pick. (Mass.) 345, 1824 ; compare Ful- 11 Rh. Is. 272 ; s. c. 23 Am. Rep. 453. 
 lam I/. Brookfield, 9 Allen (Mass.), 1; 2 Damon i: Granby, 2 Pick. (Mass.) 
 
 Bank of Columbia v. Patterson's Admin- 845, 362, 1824. 
 
 istrator, 7 Cranch, 299, and rule as stated ^ Jb; TlnnCLfiW v. Van Vechten, 19 
 
 by Story, J., 306, 1813; Clark v. Cuck- Johns. (N. Y.)60, 65, 1821. ButseeFul- 
 
 field Union, 11 Eng. Law and £q. 442 ; lam v. Brookfield, 9 Allen (Mass.), 1. 
 
 Pennington v. Taniere, 12 Queen's B. Corporate seal. .4n(e, sees. 190, 192 ; Neely 
 
 1011. Covenant cannot be maintained v. YorkviUe, 10 So. Car. 141, approving 
 
 against a city on a contract with the text. So an agreement in writing by 
 
 water commissioners of the city although an attorney to refer a certain cause acted 
 
 the statute 'declares that their contracts on by the court held to bind his client, 
 
 should be binding upon and be consid- Brooks v. New Durham, 55 N. H. 559, 
 
 ered as done by the mayor and council 1875. 
 
§457.] 
 
 CONTRACTS. 
 
 451 
 
 abuse that it would soon end in the ruin of municipalities, or be 
 legislatively overthrown. These considerations vindicate both 
 the reasonableness and necessity of the rule that the corporation 
 is bound only when its agents or oflScers, by whom it can alone 
 act, if it acts at all, keep within the limits of the chartered au- 
 thority of the corporation. The history of the workings of muni- 
 cipal bodies has demonstrated the salutary nature of this principle, 
 and that it is the part of true wisdom to keep the corporate wings 
 clipped down to the lawful standard.' It results from this doc- 
 trine that unauthorized contracts are void, and in actions thereon 
 the corporation may successfully interpose the plea of ultra vires, 
 setting up as a defence its own want of power under its charter 
 or constituent statute to enter into the contract.^ In favor of 
 
 ' Tills subject is touched upon in the 
 concluding portion of ch. i, ante. 
 
 2 Post, ch. xxiii, sec. 936; and see also 
 the folIowiDg cases : Cheeney v.Brookfield, 
 60 Mo. 63, 1875, citing text ; Marsh v. Ful- 
 ton County, 10 Wall. 676, 1870; Thomas 
 V. Ricliniond, 12 Wall. 349, 1870 ; Bridge- 
 port V. Housatonio Railroad Co., 15 Conn. 
 475, 493, 1843 ; Burrill v. Boston, 2 Clif- 
 ford C. C. 5«0, 186T ; Martin v. Mayor, 
 etc., 1 Hill (N. Y ), 545, 1841 ; Oversseers, 
 etc. V. Same, 18 Johns. (N. Y.) 382 ; Don- 
 ovan V. New Yoric, 33 N. Y. 291 ; Sie- 
 hreclit V. New Orleans, 12 La. An. 496, 
 1857 ; Clark b. Des Moines, 1!) Iowa, 199, 
 209, 1865 ; Loker o. Brookline, 13 Pick. 
 (Mass.) 343, 348; Pliiladelpliia o. Flaiii- 
 gen, 47 Pa. St. 21 ; Trustees v. Clierry, 
 « Ohio St. 564 ; Hague u. Philadelphia, 
 48 Pa. St. 527; Albany v. Cunlife, 2 
 (^>mst. (2 N. Y.) 165, 1849, reversing s. 
 c. 2 Barb. 190 ; Cuyler v. Rochester, 12 
 Wend. (N. Y.) 165. 1834 ; Hodges v. Buf- 
 falo, 2 Denio (N.Y.), 110, 1846 ; Halsted v. 
 Mayor, 3 Comst. (3 N. Y.) 430, 1850 ; Mar- 
 tin V. Mayor, 1 Hill (N. Y,), 545 ; Boom ». 
 Utica, 2 Barb. (N. Y.) 101; Cornells. 
 Guilford, 1 Denio (N. Y ), 510; Boyland 
 17. Mayor, etc. of New York, 1 Sandf. (N. 
 Y.) 27, 1847; Dill ». Wareham, 7 Mete. 
 (iWass.) 438, 1844; Vincent v. Nantucket, 
 12 Cush. (Mass.) 103, 105, 1858, per Mer- 
 rick, J.; Stetson V. Kempton, 13 Mass. 
 272; Parsons v. Inhabitants of Goshen, 
 11 Pick. (Mass.) 396; Wood v. Lynn, 1 
 Allen (Mass.), 108, 1861; Spalding v. 
 Lowell, 23 Pick. (Mass.) 71; Mitchell v. 
 
 Rockland, 45 Me. 496, 1858 ; 8. c. 41 lb. 
 363; Anthony v. Cleveland, 12 Ohio, 376, 
 1861 ; Commrs. v. Cox, 6 Ind. 403, 1855 ; 
 Inhabitants v. Weir, 9 lb. 224, 1857; 
 Smead u. Railroad Co.. 11 lb. 104, 1858 j 
 Brady v. Mayor, 20 N. Y. (6 Smith) 312-; 
 Appleby v. The Mayor, etc., 15 How. Pr. 
 (N. Y.) 428; Estep v. Keokuk County, 18 
 Iowa, 199, and cases cited by Cole, J. ; 
 Clark V. Polk County, 19 Iowa, 248, 1865 ; 
 supra, sec. 447 ; post, see. 935 ; Perry v. 
 Superior City, 23 Wis. 64, 1870 ; McDon- 
 ald V. New York, 68 N. Y. 23, 1876 ; s. c. 
 23 Am. Rep. 144; Maupin v. Franklin 
 Co., 67 Mo. .327. 
 
 Corporation may defend against un- 
 authorized contract, although its seal is 
 attachfed to it. Leavenworth v. Rankin, 
 2 Kan. 358, 1864 ; ante, sec. 192. 
 
 Mr. Justice Coulter, in delivering the 
 opinion in Alleghany City o. McClurkin, 
 14 Pa. St. 81, ej^presses the opinion that 
 a municipal corporation may be liable for 
 the contracts ultra vires of its officers, 
 when these are publicly entered into with 
 the knowledge of the people, and not ob- 
 jected to until after the rights of third 
 persons have attached. Such a principle 
 is believed to be both unsafe and unsound ; 
 the only true and safe view being that all 
 persons are bound to take notice of the 
 powers and authority which the law con- 
 fers upon the officers of such corporations. 
 See Loker v. Brookline, 13 Pick. (Mass.) 
 843 Auditing and paying part of a claim 
 presented, accompanied with a denial of 
 liability for the residue, does not estop 
 
452 
 
 MUNICIPAL COKPOEATIONS. 
 
 £cH. xnr. 
 
 bona fide holders of negotiable securities, the corporation may be 
 estopped to avail itself of irregularities in the exercise of power 
 conferred ; but it may always show that under no circumstances 
 had the corporation power to make a contract of the character in 
 question. This subject has, however, been already referred to, 
 and will be considered in a subsequent portion of the present 
 chapter.^ 
 
 the debtor corporation from contesting the 
 residue, even though it be upon grounds 
 which show the former allowance to have 
 been improper. People v. Supervisors, 
 
 1 Hill (N. Y.), 362, 1841. In an action on 
 a contract for doing work which a muni- 
 cipal corporation had the power to make, 
 it is no defence that the city ought to 
 have adopted some less expensive means 
 of accomplishing the purpose in view. 
 Livingston v. Pippin, 31 Ala. 542, 1858. 
 
 The case of The State v. BufEalo, 
 
 2 Hill (N. Y.),484, determines an interest- 
 ing point. Arms belonging to the state 
 were loaned to the city authorities to 
 suppress disorderly assemblages. The 
 'keeper of the arsenal had no right to 
 make the loan, but it was made in good 
 faith, and the bond of the city taken for 
 their return on demand. The city being 
 sued on this bond made the point that it 
 was void for illegality ; but the court re- 
 garded it rather as a bona fide excess of 
 authority simply, and held that though 
 the loan was unauthorized the state might 
 waive the tort committed on the property 
 and seek a remedy upon the bond. 
 
 The power of public building commis- 
 sioners to discharge at their discretion the 
 building superintendent whom they em- 
 ploy is vested in them for the public bene- 
 fit, and they cannot be divested of that 
 power by any contract entered into by 
 them with the person so employed, where 
 such contract is not ratified by the legisla- 
 ture. If thelegislature.with full knowledge 
 of the contract entered into by the commis- 
 sioners with the plaintiff, and of all the 
 facts relating thereto, recognizes and acts 
 upon it, making appropriations to com- 
 plete the building in question upon its 
 assumed validity, that will constitute a 
 ratification at the contract ; but such rati- 
 fication can be shown only by some action 
 of both houses by statute or resolution. 
 Shipman v The State, 43 Wis. 381, 1877. 
 
 1 Anie,sec. 163; infra, sees. 511-553; 
 Moore v. Mayor, 73 N. Y. 238, approving 
 text. 
 
 In Hitchcock v. Galveston, 96 IT. S. 
 341, 1877, the city made a contract with 
 the plaintiffs to pave streets. It had the 
 power to make a valid contract for this 
 purpose : but the city having in the con- 
 tract agreed to make payment for the 
 work in negotiable city bonds' payable at 
 a. future day, it was objected that, since 
 no express power was given to issue 
 bonds for this purpose, the whole contract 
 was therefore inoperative and void ; and 
 the lower court so decided, and its ruling 
 was supposed to be supported by tlie 
 cases of The Police Jury v. Britton, 
 15 Wall. 570, and The Mayor of Mem- 
 phis V. Ray, 19 Wall. 468. But the 
 Supreme Court held otherwise, and 
 in giving its judgment on this point, 
 Mr. Justice Strong observed: "In 
 the view which we shall take of the 
 present case, it is perhaps not necessary 
 to inquire whether those cases justify the 
 court's conclusion; for if it were conceded 
 that the city had no lawful authority to 
 issue the bonds described in the ordi- 
 nance and mentioned in the contract, it 
 docs not follow that the contract was 
 wholly illegal and void, or that the plain- 
 tiffs have no rights under it. They are 
 not suing upon the bonds, and it is not 
 necessary to their success that they 
 should assert the validity of those instru- 
 ments. It is enough for them that the 
 city council have power to enter Into a 
 contract for the improvement of the side- 
 walks; that such a contract was made 
 with them ; that under it they have pro- 
 ceeded to furnish materials and do work, 
 as well as to assume liabilities ; that the 
 city has received and now enjoys the 
 benefit of what they have done and fur- 
 nished; that for these things the city 
 promised to pay, and that after having 
 
§458.] 
 
 CONTRACTS. 
 
 453 
 
 § 458. (382) Agreeably to the foregoing principles, a corpora.- 
 tion cannot maintain an action on a bond or a contract which is 
 invalid, as where a city, without authority, loaned its bonds to a 
 private company, and took from it a penal bond, conditioned for 
 the faithful application of the city bonds to works which the city 
 had no power to construct or assist in constructing.^ So, a con- 
 tract by a city to waive its right to go on with the laying out of 
 a street or not, as it might choose, is, it seems, against public 
 policy, and it is void if it amounts to a surrender of its legislative 
 discretion.'^ So, a promise to pay a public corporation, or their 
 agents, a premium for doing their duty is illegal and void ; and a 
 
 received the benefit of the contract the 
 city has broken it. It matters not that 
 the promise was to pay in a manner not 
 authorized by law. If payments cannot 
 be made in bonds because their issue is 
 «Hra vires, it would be sanctioning rank 
 injustice to hold that payment need not 
 be made at all. Such is not the law. 
 The contract between the parties is in 
 force so far as it is lawful. There may 
 be a difference between the case of an 
 engagement made by a corporation to do 
 an act expressly prohibited by its charter, 
 or some other law, and a case of where 
 legislative power to do the act has not 
 been granted. Such a distinction is as- 
 serted in some decisions. But the present 
 is not a case in which the issue of the 
 bonds was prohibited by any statute. At 
 most, the issue was unauthorized ; at 
 most, there was a defect of power. The 
 promise to give bonds to the plaintiffs in 
 payment of what they undertook to do 
 was, therefore, at farthest, only ultra vires ; 
 and in such a case, though specific per- 
 formance of an engagement to do a thing 
 transgressive of its corporate power may 
 not be enforced, the corporation can be 
 held liable on its contract. Having re- 
 ceived benefits at the expense of the other 
 contracting party, it cannot object that it 
 was not empowered to perform what it 
 promised in return, in the mode in which 
 i t promised to perform. This was directly 
 ruled in The State Board of Agriculture 
 V. The Citizens' Street Railway Co., 47 
 Ind. 407. There it was held that " although 
 there may be a defect of power in a cor- 
 poration to make a contract, yet if a con- 
 tract made by it is not in violation of its 
 
 charter, or of any statute prohibiting it, 
 and the corporation has by its promise 
 induced a party relying on the promise 
 and in execution of the contract to ex- 
 pend money, and perform his part thereof, 
 the corporation is liable on the contract" 
 See, also, substantially to the same effect, 
 Alleghany City v. McClurkin, 14 Pa. St. 
 81 ; and, more or less in point, Maher ». 
 Chicago, 38 111. 266 ; Oneida Bank i.-. On- 
 tario Bank, 21 N. Y. 495 ; Argenti v. San 
 Francisco, 16 Cal. 256 ; Silver Lake Bank 
 V. North, 4 Johns. (N. Y.), Ch. 373." 
 
 A charter provision that after a pave* 
 ment has been laid at the expense of the 
 abutter, " the city shall take charge of 
 and keep the same in repair, without 
 further assessment," is not a contract ex- 
 empting the owners from future assess- 
 ments. State V. Newark, 8 Vroom, 416 
 (37 N. J. h.), reversing s. c. 6 76. 168. 
 
 1 City Council v. Plank Road Co., 31 
 Ala. 76, 1857. See Mayor, etc. v. Winter, 
 29 Tb. 651; Halstead v. Mayor, etc., 3 
 Comst. (3 N. Y.) 4.S0; s. c. 5 Barb. 218;' 
 Bridgeport v. Hnusatonic Railroad Co., 
 15 Conn. 475, 493. 
 
 2 Martin v. Mayor, etc., 1 Hill (N. Y.), 
 545, 1841 ; ante, sec. 97. As to public 
 policy, see Ohio, etc. Co. v. Merchants, 
 etc. Co., 11 Humph. (Tenn.) 1 ; ante, 
 ch. xii ; Indianapolis v. Indianapolis, etc, 
 Co., 66 Ind. 396, citing text. 
 
 Corrupt agreements with aldermen, to in- 
 fluence them to a particular course in the 
 discharge of official duties, are, of course, 
 void, no matter to whom executed. Cook 
 u. Shipman, 24 III. 614. 
 
 Contracts with municipal officers. Ante, 
 sees. 283, 292, 444. 
 
454 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIV. 
 
 contract will not be sustained which tends to restrain or control 
 the unbiased judgment of public officers. But a promise by indi- 
 viduals to pay a portion of the expenses of public improvements 
 does not necessarily fall within this principle, and such a promise 
 is not void as being against public policy ; and if the promisors 
 have a peculiar and local interest in the improvement, their 
 promise is not void for want of consideration, jyid may be en- 
 forced against them.* So, on the other hand, a party making 
 with a city a contract which is uUra vires, is not estopped, when 
 sued thereon by the corporation for damages, to set up its want 
 of authority to make it.^ 
 
 » Townsend v. Hoyle, 20 Conn. 1, 1849. 
 This case holds that a promise by the de- 
 fendants to pay the city the expense of 
 laying a certain street was binding ; and 
 Ellsworth, J., in delivering the opinion, 
 gaid : " We cannot assent to the proposi- 
 tion that a promise by individuals to pay 
 a part of the expenses of public improve- 
 ments, ordered by public authority, is, of 
 course, illegal and void. The amount or 
 cost may properly enough enter into the 
 question of expediency or necessity. If 
 made in one way or in one place, it will 
 be much better for the public, though 
 more expensive ; but individuals specially 
 benefited stand ready, by giving their 
 land, their money, or their labor, to meet 
 the extra expense. Will these promises 
 be void, as being without consideration or 
 against public policy ? We think not." 
 See chapter on Streets, post ; Springfield 
 V. Harris, 107 Mass. 532. Any arrange- 
 ment or combination among the parties 
 applying, whereby a few individuals, de- 
 sirous of causing paving and grading to 
 be done, procured the signatures of others 
 to the application by paying them a con- 
 sideration therefor, directly or indirectly, 
 is a fraud in law and contrary to public 
 policy. Howard v. The Church, 18 Md. 
 451.. If executory such an agreement can- 
 not be enforced. Maguire v. Smock, 42 
 Ind. 1, 1878 ; s. c. 13 Am. Rep. 353. A 
 written promise to pay Into the county 
 treasury a certain sum of money, upon the 
 condition that the county commissioners, 
 who liad removed the county court-house 
 from the public square, and were build- 
 
 ing a new court-house elsewhere, would 
 remove it buck to said square, which 
 offer was accepted by said commission- 
 ers, who entered on their records an order 
 for such relocation, was not void as against 
 public policy, though the commissioners 
 were not expressly authorized by statute 
 to receive such donations. Stilson v. Law- 
 rence Co., 52 Ind. 213, 1876 ; State v. John- 
 son's Admr., 52 Ind. 197, 1876; post, sec. 
 696. 
 
 2 City Council v. Plank Road Co., 31 
 Ala. 76, 1857; Steam Navigation Co. v. 
 Dandridge, 8 Gill & J. (Md.) 248, 319, 320 ; 
 Hodges V. BuflTalo, 2 Denio (N. Y.), 110. 
 If a corporation has received money in 
 advance, on a contract void on account 
 of want of authority to make it, and after- 
 wards refuses to fulfil the contract, the 
 party advancing the money may, without 
 demand, recover it back in an action for 
 money had and received. Dill v. Ware- 
 ham, 1 Met. (Mass.) 438, 1844. In this 
 case the corporate defendant undertook, 
 without authority, to transfer to the plain- 
 tiff the right of taking oysters within its 
 limits ; contract held wholly void. See, 
 also, McCracken v. San Francisco, 16 Cal. 
 591 ; infra, sees. 459, 460; compare Herzo 
 u. San Francisco, 33 Cal. 134. That the 
 contract of agents within the scope of cor- 
 porate power may be ratified, or a con- 
 tract implied from the enjoyment of the 
 benefit of tlie consideration. San Fran- 
 cisco Gas Co. V. San Francisco, 9 Cal. 453, 
 1858, opinion of Field, J. ; Backman v. 
 Charleslown, 42 N. H. 125; see Bissell v. 
 Railroad Co., 22 N. Y. 258 ; post, sec. 936. 
 
§ 459.] 
 
 CONTRACTS. 
 
 455- 
 
 § 459. (383) Implied Contracts. — The present state of the 
 authorities clearly justifies the opinion of Chancellor Kent, that 
 corporations may be bound by implied contracts within the scope 
 of their powers, to be deduced by inference from authorized cor- 
 porate acts, without either a vote, or deed, or writing.^ This 
 doctrine is applicable equally to public and private corporations, 
 but in applying it, however, care must be taken not to violate 
 other principles of law.^ Thus it is obvious that an implied 
 
 1 2 Kent Com. 291 ; Bank of Colum- 
 bia V. Patterson, 7 Cranch, 299, 1818 (a 
 leading American case) ; Mott v. Hicks, 
 
 1 Cow. {N. Y.) 513; Dunn v. Kector, etc., 
 14 Johns. (N. Y.) 118 ; Bank o. Dandridge, 
 12 Wheat. 74 ; Perkins v. Insurance Co., 
 4 Cow. (N. Y.) 645; Davenport v. Peoria 
 Insurance Co., 17 Iowa, 276, and cases 
 cited by Cole, 3. ; American Insurance Co. 
 I). Oakley, 9 Paige (N. Y.), 496 ; Magill v. 
 Kauffman, 4 Serg. & Rawle (Pa.), 317; 
 Randall v. Van Vechten, 19 Johns. (N. Y.) 
 60; Wayne County w. Detroit, 17 Mich. 
 390; Lesley B. White, 1 Spears (So. Car.) 
 Law, 31 ; Canaan v. Derush, 47 N. H. 
 211 ; Lebanon v. Heath, lb. 853 ; Adams 
 V. Farnsworth, 15 Gray (Mass.), 423; 
 Shrewsbury ». Brown, 25 Vt. 197 ; Gas- 
 sett V. Andover, lb. 842 ; Peterson v. 
 Mayor, etc., of New York, 17 N. Y. 449, 
 453, 1858; Danforth v. Schoharie Turn- 
 pike Co., 12 Johns. (N. Y.) 227 ; Angell & 
 Ames, sec. 237 ; Maher «. Chicago, 38 111. 
 266 ; Frankfort Bridge Co. u. Frankfort, 
 18 B. Mon. (Ky.) 41 ; Bryan v. Page, 
 51 Tex. 532; State Board t. Aberdeen, 
 56 Miss. 518, approving text ; supra, sec. 
 450 ; Broom Com. on Com. Law. 561-570, 
 where the English cases are collected. 
 The reader will be interested in the letter 
 of Mr. Justice Story to Mr. Justice Cole- 
 ridge on the subject of corporate liability 
 for the parol contracts, intra vires, of the 
 authorized agents of the corporation. 
 
 2 Story's Life and Letters, 385, 337. He 
 there adds, what is now settled law, "That 
 all duties, imposed upon a corporation by 
 law, and all services performed at its re- 
 quest, raise implied promises binding on 
 the corporation if, of course, no statute 
 be thereby infringed." lb. 
 
 2 Petersen v. Mayor, etc. of New York, 
 17 N. Y. 449, 453; Poultney v. Wells, 1 
 Aiken ( Vt.), 180. Where a city contracted 
 
 with a railroad company to do certain 
 work, and the company employed per- 
 sons to do it, there is no implied contract 
 on the pkrt of the city to pay them, 
 although the city saw them at work. 
 Alton V. MuUedy, 21 111. 76, 1869. When 
 contracts can only be proved by the 
 record ; and when there is no implica- 
 tion as to contracts ; and when they must 
 appear by the records of the corporate 
 proceedings. , See Crump v. Supervisors, 
 52 Miss. 107 ; Board v. Boyle, 9 Ind. 296 ; 
 Warwick u. Butterworth, 17 Ind. 129; 
 St. Louis V. Cleland, 4 Mo. 84 ; Alton v. 
 Mulledy, 21 III. 76, 1859; San Antonio v. 
 Gould, 84 Tex. 76; People v. Fulton Co., 
 14 Barb. (N. Y.) 56; Bryan v. Page, 51 
 Tex. 532 ; Gilbert v. New Haven, 40 Conn. 
 102, 1873. 
 
 Must be an authorized request. " No per- 
 son can make himself a creditor<of another 
 by voluntarily discharging a duty which 
 belongs to that other." Strong, J., in 
 Salsbury v. Philadelphia, 44 Pa. St. 303; 
 Baltimore v. Poultney, 25 Md. 18 ; Jeffer- 
 sonville v. Ferry Boat, 35 Ind. 19, 1870. 
 In Seibrecht v. New Orleans, 12 La. An. 
 496, 1857, carpets were furnished for cer- 
 tain corporation courts, by order of the 
 clerks or judges, but without any author- 
 ity of the common council, and were worn 
 out before the plaintiff presented his bill. 
 It was contended that the city was liable 
 ex equo et bono, having used, and not re- 
 turned the carpets ; but it did not appear 
 that the council knew that they had been 
 purchased for the city, and were being 
 used in its buildings. The court denied 
 the liability, saying that "the only safe 
 rule is to hold that the city cannot be 
 bound for any contract made without its 
 authorization, expressed by a resolution 
 of the common council." That an unau- 
 thorized contract, however advantageous, 
 
456 
 
 MUNICIPAL COKPOBATIONS. 
 
 [CH. XIT. 
 
 promise cannot be raised against a corporation, where by its 
 charter it can only contract in a prescribed way, except it be a 
 promise for money received or property appropriated under the 
 contract.! So, where the corporation orders local street improve- 
 ments to be made, for which the abutters are the parties ulti- 
 mately liable, and which, by the charter, must be made in a 
 prescribed mode ; if made without any contract or a valid one, 
 the doctrine of implied liability does not apply in favor of the 
 contractor, unless, indeed, the CQi'poration has collected the 
 amount from the adjoining owners and has it in its treasury.^ 
 
 does not bind the corporation, see Loker 
 V. Brookline, 13 Pick. (Mass.) 343; Jones 
 V. Lancaster, 4 Kck. (Mass.) 149; Wood v. 
 Waterville, 5 Mass. 294. 
 
 A contract was implied on tlie part of 
 a city, whicli was bound to support its 
 paupers and wliicli bad refused to pay a 
 person who had furnished a pauper with 
 necessaries. Seagraves v. Alton, 13 IlL 
 371. Here it will be noticed that there 
 was an express refusal on the part of the 
 city to support the pauper, and yet a 
 promise was implied. Tliis implication is 
 a pure fiction to support what the court 
 regarded as a, just claim. A contract 
 made by one member of a committee or 
 county board for services which are au- 
 thorized to be obtained is not obligatory 
 on the municipality. The power is Tested 
 in the whole body, and no one member 
 can bind the corporation. Bentley v. 
 County Commrs., 2.5 Minn. 259. 
 
 1 McSpedon v. Mayor of New York, 7 
 Bosw. (N. Y.) 601; McCracken v. San 
 Francisco, 16 Cal. 591 ; Pieniental v. San 
 Francisco, 21 Cal. 351 ; Dickinson v. 
 Poughkeepsie, 74 N. Y. 65. 
 
 2 Argenti v. San Francisco, 16 Cal. 
 255, opinion of Fidd, C. J. A municipal 
 corporation was holden liable, under its 
 charter, upon an implied assumpsit to 
 collect and pay over assessments awarded 
 to property owners for the opening of a 
 street. Wheeler v. Chicago, 24 111. 105, 
 1860; see infra, sees. 466, 480, 483; San- 
 gamon Co. 0. Springfield, 63 111. 66, 1872. 
 Where a contractor has entered into a 
 contract in good faith, relying upon the 
 regularity of the proceedings of the com- 
 mon council, the city, having received the 
 benefit of the performance, is estopped 
 
 from questioning the regularity in that 
 regard. Moore v. New York, 73 N. Y. 
 238. 
 
 The charter of a city declared that it 
 should not be liable in any manner for 
 local improvements which are made a 
 charge upon the adjacent property ; the 
 council by a resolution which was a 
 ntillity, because of the non-concurrence 
 of the mayor, ordered a certain local im- 
 provement to be made, and the work let 
 to the plaintiff, who did it and failed to 
 collect the same (by reason of the nullity 
 of the resolution) from the adjoining own- 
 ers (Sexton V. Beach, 50 Mo. 488, 1872); 
 and having expended a considerable sum 
 in an unsuccessful attempt to charge the 
 abutting property, he brought suit against 
 the city to recover the sum so expended 
 in testing the validity of the resolution of 
 the council. The Supreme Court of Mis- 
 souri held that the city was not liable, 
 distinguishing Clayburgh v. Chicago, 25 
 111. 535, and Fisher ». St. Louis, 44 Mo. 
 482; Sexton c. St. Joseph, 60 Mo. 153, 
 1875. In Kentucky there is no liability 
 unless the city has the right to proceed 
 to make property holders liable. But if 
 the nature or ownership of the adjacent 
 property is such that no steps which 
 could have been taken would have ren- 
 dered it or its owner liable, then the city 
 must pay for the improvement, or it will 
 have as to such work no means of exe- 
 cuting its general power to improve all 
 streets. Caldwell v. Rupert, 10 Bush 
 (Ky.), 179; City of Louisville v. Nevin, 
 10 Bush (Ky.), 649; Craycrafl, etc. c. 
 Selvage, etc., 10 Bush (Ky.), 696, 1874. 
 
 Where a city, organized and acting 
 under a general law, — which provides. 
 
§ 460.] CONTRACTS. 457 
 
 § 460. (384) " The doctrine of implied municipal liability," says 
 Mr. Chief Justice Fields in a case where the subject underwent 
 very thorough examination, " applies to cases where money or 
 other propertj' of a party is received under sucli circumstances 
 that the general law, independent of express contract, imposes 
 the obligation upon the city to do justice with respect to the 
 same. If the city obtain money of another by mistake, or without 
 authority of law, it is her duty to refund it — not from any con- 
 tract entered into by her on the subject, but from the general 
 obligation to do justice which binds all persons, whether natural 
 or artificial. If the city obtain other property which does not 
 belong to her, it is her duty ..to restore it ; or if used by her, to 
 render an equivalent to the true owner, from the like general ob- 
 ligation : the law, which always intends justice, implies a promise. 
 In reference to money or other property, it is not difficult to deter- 
 mine in any particular case whether a liability with respect to the 
 same has attached to the city. The money must have gone into 
 her treasury, or been appropriated by her ; and when it is prop- 
 erty other than money, it must have been used by her, or be 
 under her control. But with I'eference to services rendered, the 
 case is different. Their acceptance must be evidenced by ordi- 
 nance [or express corporate action] to that effect. If not origi- 
 
 "The city shall be liable to the con- contractor having like knowledge with 
 
 tractors for so much thereof only as is the members of the council, they cannot 
 
 occupied by public grounds of the city be held liable for the cost of such im- 
 
 bordering thereon, and the crossings of proveraent, though the place where the 
 
 streets and alleys," — makes a contract same is made is not within the corporate 
 
 for the improvement of a street at the limits. Newman i;. Sylvester, 42 Ind. 
 
 expense of the property holders, and the 106, 1873. 
 
 contractor does the work in whole or in It is the general doctrine that corpora- 
 part, and the engineer refuses to make an tions possess the powers expressly con- 
 estimate, and the council refuses to issue ferred by law, and such implied powers 
 precepts upon the proper application as are necessary to enable them to exer- 
 against the property holders, a suit can- cise the powers expressly granted, and no 
 not be maintained by the contractor others ; yet, although there may be a 
 against the city for damages. The defect of power in a corporation to make 
 remedy in such ease is by mandate to a contract, if a contract made by it is not 
 compel the engineer and council to per- in violation of the charter of the corpora- 
 form their duties. Greencastle v. Allen, tion or any statute prohibiting it, and the 
 43 Ind. 347, 1873. If the members of the corporation by its promise induced a party, 
 common council of a city, in passing an relying upon such promise and in execu- 
 ordinance and letting a contract for the tion of the contract, to expend money and 
 improvement of a street, act in good faith, perform his part of the contract, the cor- 
 under a misapprehension, they and the poration is liable on the contract. The 
 contractor, as well as the adjacent owner State Board of Agriculture v. The Citi- 
 of real estate, believing the street to be zens' Street Railway Co., 47 Ind. 407, 
 within the corporate limits of the city, the 1874. 
 
458 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. XIV. 
 
 nally authorized, no liability can attach upon any ground of 
 implied contract. The acceptance, upon which alone the obliga- 
 tion to pay could arise, would be wanting. 
 
 § 461. As a general rule, undoubtedly, a city corporation is 
 only liable upon express contracts, authorized by ordinance [or 
 other due corporate proceedings]. The exceptions relate to lia- 
 bilities from the use of money or other property which does not 
 belbng to her, or to liabilities springing from the neglect of duties 
 imposed by the charter, from which injuries to parties are pro- 
 duced. There are limitations even to these exceptions in many 
 instances, as where property or mqpey is received in disregard of 
 positive prohibitions ; as, for example, the city would not be lia- 
 ble for moneys received upon the issuance of bills of credit, — 
 as this would be, in effect, to support a proceeding in direct 
 contravention of the inhibition of the charter." ^ Nor for money 
 received for notes issued by it to circulate as money, in violation 
 of an express statute and the public policy of the state.^ 
 
 1 Per Fidd, C. J., in Argenti v. San 
 Francisuo, 16 Cal. 255, 282, 1860. Wliere 
 statute provisions enacted to prevent the 
 making of certain contracts are disre- 
 garded, and a contract made without 
 observing them, tlie contractor cannot re- 
 cover tlie value of articles supplied under 
 the contract upon an implied liability in 
 such a. case no liability can be implied. 
 McDonald v. New York, 68 N. Y. 23 ; 
 8 o. 23 Am. Rep. 144, commenting on 
 Nelson u. Mayor, 63 N. Y. 535; and 
 Argenti v. San Francisco, supra. 
 
 " The law," says an eminent judge, 
 "never implies a promise to pay unless 
 some duty creates such an obligation, and 
 more especially it never implies a promise 
 to do an act contrary to duty or contrary 
 to law. Assumpsit may be maintained 
 against a municipal corporation in cer- 
 tain cases upon an implied promise, but 
 the better opinion is that a promise to 
 pay can never be implied in a case where 
 the corporation possesses no power to 
 contract." Per Clifford, J., in Burrill v. 
 Boston, 2 Clifford C. C. 590, 596, 1867. 
 The subject is further expounded by the 
 same learned justice in his opinion in T)ie 
 Collector v. Hubbard, 12 Wall. 1, 12, 1870. 
 See, also, Curtis v. Fiedler, 2 Black. 
 
 (U. S.) 478 ; Murphy v. Louisville, 9 Bush 
 (Ky.), 189, 1872. 
 
 See on subject of implied liability, the late 
 judgment of the United States Supreme 
 Court in City of Louisiana v. Wood, Octo- 
 ber Term, 1880. 
 
 2 Thomas v. Richmond, 12 W^all. 349, 
 1870. The principles upon which the 
 decision rests are admirably stated in the 
 opinion of Mr. Justice Bradley. Cheeney 
 V. Brookfield, 60 Mo. 53, 1875, citing text ; 
 State Board o. Aberdeen, 56 Miss. 518 
 (approving text) ; Brown v. Belleville, 30 
 Upper Can. Q. B. 373; Wentworth v. 
 Hamilton, 34 Upper Can. Q. B. 585; 
 Brown v. Lindsey, 35 Upper Can. Q. B. 
 509; Parsons v. Monmouth, 70 Me. 262, 
 1879, approving text. 
 
 In Cheeney v. Brookfield, 60 Mo. 53, 
 1875, it was held that a municipal corpo- 
 ration is not liable upon a warrant issued 
 to a bank-note company in payment of a 
 debt to the company for engraving and 
 printing on bank-note paper, notes paya- 
 ble to bearer, to be put into circulation 
 by the corporation as money without au- 
 thority of law. The court held that there 
 could be no implied assumpsit in such a 
 case, and distinguished it from Alleghany 
 City V. McClurkan, 14 Pa. St. 81, and 
 
462.] 
 
 CONTRACTS. 
 
 459 
 
 § 462. Contracts — Ultra Vires — Assumpsit. — Where a city, 
 without authority of law, issued its bonds in exchange for the 
 bonds of a railroad company, which remain wholly unpaid, the 
 city is not liable on its bonds. If in such case value has been 
 received by the city, the remedy is for the money or property 
 received without consideration.^ 
 
 denied Underwood v. Newport Lyceum, 5 
 B. Mon. (Ky.) 130. 
 
 Illustrations of implied liabiliti/. — City 
 is liable for gas furnished to it with knowl- 
 edge of the council, though no ordinance 
 or resolution was passed authorizing it to 
 be furnished. Gas Co. u. San Francisep, 
 
 9 Cal. 453, 466, 1858, opinion of Field, 
 J. If a city sells its void bonds, there is 
 an implied assumpsit to repay the pur- 
 chase-money. Paul V. Kenosha, 22 Wis. 
 266, 1867. Where a bridge corporation 
 was requested by the city authorities to 
 communicate to them the terms upon 
 which the city might attach its water- 
 pipes to the bridge, to carry the water 
 from one side of the river to the other, 
 which the bridge company answered, fix- 
 ing a sum, upon which the city council 
 took no action, but proceeded to extend 
 the water-works and used the bridge, the 
 court held the city was liable. Bridge 
 Co. V. Frankfort, 18 B. Mon. (Ky.) 41, 
 1857. Broom Com. on Com. Law, 567, 
 where the English cases are cited in 
 which corporations have been held liable 
 by reason of enjoying the benefits resulting 
 from particular contracts. See McDon- 
 ald ». Mayor, 68 N. Y. 23, 1876; s. c. 23 
 Am. Rep. 144, Folger, J., suggests in- 
 stances of implied liability; yost, sees. 
 938, 939. 
 
 Mr. Harrison, in his excellent " Muni- 
 cipal Manual for Upper Canada," has 
 digested the decisions in the province on 
 the subject of the power of corporations 
 
 10 contract. He says (2d ed. p. 19), "It 
 is a principle applicable to all corpora- 
 tions that they must contract under seal. 
 To this principle there are some excep- 
 tions. One of some moment has been 
 created with regard to municipal corpo- 
 rations. It is that such a corporation is 
 liable to be sued in an action of debt on 
 simple contract for the price of goods 
 furnished, or labor done at their request 
 and accepted by them. Fetterly v. The 
 
 Municipality of Russell and Cambridge, 
 14 Upper Can. Q. B. 433. ThouglL,in 
 such a case there be no contract unaer 
 seal, the law implies an undertaking by a 
 corporation to pay for labor and materials 
 employed in their service, and of which 
 they have accepted and are enjoying the 
 benefit, provided the purpose for which 
 the labor and materials have been applied 
 is one clearly within the legitimate object 
 of their character. Bartlett v. The Muni- 
 cipality of Amherstburgh, 14 Upper Can. 
 Q. B. 152; Fetterly v. The Municipality of 
 Russell and Cambridge, 14 Upper Can. Q. 
 B. 433 ; Fim v. The Municipal Council of 
 Ontario, 9 Upper Can. C. P. 304 ; Perry 
 V. The Corporation of Ontario, 23 Upper 
 Can. Q. B. 391 ; Nicholson v. The Guard- 
 ians of the Bradford Union, 1 L. R. Q. 
 B. 620. The exception, however, does 
 not extend to executory contracts, such 
 as work, etc., to be done, but is confined 
 to work in fact done and accepted. Mc- 
 Lean B. The Town Council of the Town 
 of Brantford, 16 Upper Can. Q. B. 347; 
 Wingate v. The Enniskillen Oil Refining 
 Co., 14 Upper Can. C. P. 379." Mayor, 
 etc. V. Hardwicke, L. R. 9 Exchq. 13; 
 Austin ». Guardians, etc., L. B. 9 C. P. 
 91; Houck a. Whitty, 14 Grant (Can.), 
 671. 
 
 1 Thomas v. Port Hudson, 27 Mich. 
 320, 1873. In this case Cooky, J., ob- 
 serves : " A municipal corporation has no 
 general authority to exchange promises 
 with other corporations or persons ; its 
 contracts, to be valid, must be within the 
 scope of the authority conferred upon it 
 by law, and for municipal purposes. And 
 if, under pretence of law, its officers in its 
 name obtain money, property, or rights 
 in action which equitably belong to an- 
 other, the fact may entitle the party to 
 the proper remedy, but it cannot make 
 good bonds issued in violation of law, 
 unless it is to be held [which is not the 
 law] that the power of municipal corpora- 
 
460 
 
 MUNICIPAL COBPOfiATIONS. 
 
 [CH. XIV. 
 
 § 463. (385) Ratification of Unauthorized Contract. — A muni- 
 cipal corporation may ratify the unauthorized acts and contracts 
 of its agents or officers, which are within the corporate powers, but 
 not otherwise. Ratification may frequently be inferred from 
 acquiescence after knowledge- of all the material facts, or from 
 acts inconsistent with any other supposition. The same prin- 
 ciple is applicable to corporations as to individuals.^ But a subse- 
 quent ratification cannot make valid an unlawful act without the 
 sc^e of corporate authority. An» absolute excess of authority 
 by the officers of a corporation, in violation of law, cannot be 
 upheld ; and where the officers of such a body fail to pursue 
 the requirements of a statutory enactment under which they are 
 acting, the corporation is not bound. In such cases the statute 
 must be strictly followed ; and a person who deals with a muui- 
 cipfil body is obliged to see that its charter has been fully com- 
 plied with : when this is not done, no subsequent act can make 
 the contract effective.^ The employment, however, by a muni- 
 
 tions to make legal promises Is co-exten- 
 sive with that of individuals, and that 
 any contracts they may make are valid 
 where it can be said that anything of 
 value was given or inconvenience sub- 
 mitted to in excliange." 
 
 I People V. Swift, 31 Cal. 26, 1866 ; 
 Bleu V. Bear River Co., 20 Cal. 602, 1862 ; 
 Peterson v. Mayor, 17 N. Y. 449, 45-3, 
 1858, and authorities cited, reversing s. 
 c. 4 E. D. Smitli, 413; San Francisco 
 Gas Co. V. San Francisco, 9 Cal. 458 ; 
 Hoyt V. Thompson, 19 N. Y. 207, 218, 
 1859; Clarke v. Lyon Co., 8 Nev. 181, 
 1873; Howe v. Keeler, 27 Conn. 538; 
 Emerson v. Newberry, 13 Pick. (Mass.) 
 877; Hodges v. Buffalo, 2 Denio (N. Y.), 
 110, 1846 ; 5 Jb. 567 ; People i>. Flagg, 17 
 N. Y. 584; s. c. 16 How. (N. Y.) Pr. 36 ; 
 Brady v. Mayor, etc. of New York, 20 N. Y. 
 312, affirming s. c. 2 Bosw. 173 ; Delafleld 
 ». State of Illinois, 2 Hill (N. Y.), 159, 
 176, 184] ; s. c. 8 Paige, 531, and 26 
 Wend. 192; Mills v. Gleason, 11 Wis. 
 470, 1860; s. c. 8 Am. Law Reg. 693; 
 Dubuque, etc. College v. Township, etc., 
 13 Iowa, 55 ; Merrick «. Plank Road Co., 
 11 Iowa, 74, per Wright, J. ; Detroit v. 
 Jackson, 1 Doug. (Mich.) 106 ; Craw- 
 shaw V. Roxbury, 7 Gray (Mass.), 374; 
 Burrill u. Boston, 2 Clifford C. C. 590, 
 1867 ; post, sec. 779, note. 
 
 A municipal corporation may ratify 
 unauthorized expenditures, not ultra vires, 
 which they deem beneficial to it, and such 
 ratification, as in tlie case of natural per- 
 sons, is equivalent to previous authority. 
 Backman v. Charlestown, 42 N. H. 125 ; 
 Harris v. School District, 8 Fost. (28 N. 
 H.) 65; Wilson v. School District, 32 N. 
 H. 118; Keyser v. School District, 35 N. 
 H. 477 ; Episcopal Society v. Episcopal 
 Church, 1 Pick. (Mass.) 372; Bank <,-. 
 Patterson, 7 Cranch, 299; Randall v. 
 Van Vechten, 19 Johns. (N. Y.) 60; 
 Trott u. Warren, 2 Fairf ( 11 Me.) 227; 
 Topsham v. Rogers, 42 Vt. 199 ; People 
 V. Swift, 31 Cal. 26. In DeGrave v. Mon- 
 mouth, 19 Eng. C. L. 300, it was held that 
 the examination of weights and measures, 
 which had been ordered by a mayor de 
 facto, and which were the subject of the 
 controverted contract, at a meeting of the 
 corporation, and the subsequent use of 
 some of them, recognized the contract for 
 their purchase and made the corpoi:ation 
 liable to pay for them. As to ratification 
 of contracts for local improvements when 
 not primarily a charge on the city. See 
 Murphy v. Louisville, 9 Bush (Ky.), 189, 
 1872 ; -post, sec. 481, note ; infra, sees. 465, 
 813 ; 4 Broom Cora, on Com Law, 567. 
 
 2 Sault Ste. Marie Co. v. Van Duzen, 
 40 Mich. 429; Jefferson Co. v. Arrighi, 54 
 
§ 464] 
 
 CONTRACTS. 
 
 4G1 
 
 cipal council, of an attorney to defend a policeman charged with 
 an assault, does not adopt his act so as to render the city liable 
 for the damages recovered against him.' 
 
 § 464. (386) Where work doYie for a corporation, without 
 complete legal authorization, is beneficial to it, and the price 
 reasonable, strong evidence of the assent of the corporation is not 
 required ; but such assent must be shown. Ratification of the acts 
 of a committee in building upon the land of the district a more 
 expensive house than they were authorized to do by the vote of 
 the corporation cannot be interred from the mere fact that the 
 school is kept in it for a few weeks, there being no evidence 
 that the corporation had knowledge of the over-expenditure, or 
 had taken any action on the subject.^ 
 
 Miss. 668 ; Nash v. St. Paul, 11 Minn. 174 ; 
 Hague V. Philadelpliia, 48 Pa. St. 528 ; 
 Brady v. Mayor, 20 N. Y. 312; Bryan v. 
 Page, 51 Tex. 832; Peterson v. Mayor, 17 
 N. Y. 449 ; Cowen v. West Troy, 43 Barb. 
 (N. Y.) 48 ; Brown v. Mayor, 63 N. Y. 
 239; Hortges v. Buffalo, 2 Denio (N. Y.), 
 110; McDonald u. Mayor, 68 N. Y. 23; 
 Smith u. Newburgh, 77 N. Y. 130; 
 Green ». Cape May, 41 N. J. L. 45, ap- 
 proving text. Taymouth v. Koeliler, 35 
 Mich. 22 ; Marsh v. Fulton Co., 10 Wall. 
 676 ; Horton ». Thompson, 71 N. Y. 513 ; 
 McCracken v. San Francisco, 16 Cal. 591 ; 
 Ashbury, etc. Co. v. Koche, L. R. 7 H. 
 L. C. 653. 
 
 1 Buttrick v. Lowell, 1 Allen (Mass.), 
 172, 1861 ; post, sees. 479, 975 ; Moore v. 
 Mayor, 73 N. Y. 238, approving text; 
 Bryan », Page, 51 Tex. 352 ; Willielm v. 
 Cedar Co., 60 Iowa, 254, approving text. 
 
 « Wilson V. School District, 32 N. H. 
 118, 1855. See, further, as to effect of 
 use as a ratification, Kingman v. School 
 District, 2 Cush. (Mass.) 425; Davis v. 
 School District, 24 Me. 349; Lane v. 
 School District, 10 Met. (Mass.) 462; 
 Chaplin v. Hill, 24 Vt. (1 Dean) 628; 
 Fisher v. School District, 4 Cush. (Mass.) 
 494 ; Taf t v. Montague, 14 Mass. 285 ; 
 Keyser v. School District, 35 N. H. 477 ; 
 Pratt V. S wanton, 15 Vt. 147 (use of 
 bridge by public). 
 
 In Wilson v. School District, above 
 cited, Mr. Justice Bell well remarks : " In 
 most cases where work and labor is per- 
 
 formed upon real estate by contract, the 
 mere /act that the oivner makes use of the 
 building or structure built upon his land 
 furnishes no evidence of approval or ac- 
 ceptance, because he has no choice to 
 reject it. Alone, the use of such build- 
 ings gives no evidence of acceptance. 
 Accompanied by silence, and absence of 
 complaint, where to complain would be 
 natural and suitable, or by any circum- 
 stance indicating acquiescence, it would 
 be sufficient." 32 N. H. 125. As to ef- 
 fect of acceptance of public work by the 
 agents of the town, see Wadleigh v. Sut- 
 ton, 6 N. H. 15, 1832. Of school-house 
 built upon a quantum meruit employment 
 by a committee, but without a legal con- 
 tract. Kimball v. School District, 28 Vt. 
 8, 1855. See, also, Corwin v. Wallace, 17 
 Iowa, 334 ; Zottman v. San Francisco, 20 
 Cal. 96 (valuable discussion) ; approved. 
 Murphy v. Louisville, 9 Bush (Ky.). 189, 
 1872 ; Jordan v. School District, 38 Me. 
 164, 1854 ; Reichard v. Warren County, 31 
 Iowa, 381, 1871. Surveyor of highways 
 cannot recover of the town for work 
 voluntarily performed, there being no 
 contract, not even if beneficial. Sikes v. 
 Hatfield, 13 Gray (Mass.), 347, 1859; 
 infra, sees. 400, 466. 
 
 A public corporation is not liable for 
 work done against, or even without, its 
 direction or authority (such as building a 
 bridge, road, school-house, etc.), although 
 these are afterwards used by the public 
 or the district. Loker v. Brookline, 13 
 
462 
 
 MUNICIPAL COEPORATIONS. 
 
 [Cfi. XIV. 
 
 § 465. (387) The ratification, whatever its form, must be by 
 the principal or authorized agents. This is well illustrated by 
 a case where, by statute, certain agents or officers of a state were 
 authorized to borrow money for public use, and for that purpose 
 to sell its bonds at not less than their par value. They exceeded 
 their power by selling for less than par, and on credit. It was 
 contended that this contract was ratified, because the governor, 
 after he knew of the contract, signed the bonds and caused them 
 to be delivered, and because the«iauditor and some of the other 
 state officers acted under the contracts, drawing money and re- 
 ceiving payments. But it was hefd that these officiuls were like- 
 wise agents of limited authority ; that, as they would have had 
 no power to make the contracts originally, they could not ratify 
 them ; that ratification must come from the principal, — the state, 
 represented by its legislature.* 
 
 Pick. (Mass.) 343, 1832; Knowlton v. In- 
 habitants, etc. 14 Me. (2 Sliep.) 25, where 
 note critique on, and remarks of MeUen, 
 C. J., as to Hayden v. Madison, 7 Greenl. 
 (Me.), 79; Morrell v. Dixfield, 30 Me. (KJ 
 Shep.) 187, 160; Davis v. Scliool Dis- 
 trict, 24 Me. (10 Sliep.) 349; Hay ward v. 
 School District, 2 Gush. (Mass.) 419, 
 1848 ; Th. 426 ; Moor ». Cornville, 13 Me. 
 293, 1836 (where the action was brought 
 by the surveyor or supervisor of high- 
 ways, wiio built it bridge without pur- 
 suing the course pointed out by law) ; 
 Allen V. Ctooper, 22 Me. 133 (deciding 
 that the power of » committee with au- 
 thority to contract to make a road, does 
 not embrace power to accept the work or 
 waive performance). But it the work be 
 done under belief of authority, as where 
 It was performed under a contract with a 
 committee who assumed to have au- 
 thority, but who, in fact, had none, then 
 if the corporation accept it, or even know- 
 ingly avail itself of it, it will be liable to 
 pay a reasonable compensation; and a 
 promise thus to pay may be implied on 
 the part of a corporation from the acts of 
 its general agent, or an agent with pow- 
 ers of a' general character [?]. Abbot v. 
 Herman, 7 Me. (Greenl.) 118; Hayden 
 V. Madison, 76. 79. " Perhaps these two 
 cases carry the doctrine of the implied 
 responsibility of corporations as far as it 
 ought to be carried." Per Emery, J., in 
 
 Ruby V. Abysm. Society, 15 Me. 306, 308, 
 1839. As to extent of powers of New 
 England towns, see ante, sees. 29, 30. 
 And see, particularly, Jordan i'. School 
 District, and otiier cases cited, supra ; 
 Baltimore v. Reynolds, 20 Md. 1, 1862; 
 Hague V. Philadelpliia, 48 Pa. St. 527 ; 
 Moore v. Mayor, 73 N. Y. 2-38, approving 
 text. 
 
 1 Delafield v. State of Illinois, 2 Hill 
 (N. y.), 159, 175, where difference be- 
 tween ratification by a state and by other 
 corporations and individuals is clearly 
 set forth by Branson, 3. ; affirming s. c. 8 
 Paige, 531 ; s. c. further, 26 Wend. 192. 
 In further illustration of the text, see 
 Hague u. Philadelphia, 48 Pa. St. 527 ; 
 Hotchin v. Kent, 8 Mich. 526; Murphy v. 
 Louisville, 9 Bush (Ky.), 189, 1872; 
 Marsh v. Fulton County, 10 Wall. 676, 
 1870 ; Dubuque, etc.. College v. Dubuque, 
 13 Iowa, 555; Estey m. Inhabitants of 
 Westminster, 97 Mass. 324; Branham t;. 
 San Jose, 24 Cal. 585; Attorney-General 
 V. Lathrop, 24 Mich. 2.3-5, 1872; Wilhelm 
 V. Cedar County, 50 Iowa, 254. The case 
 of the City [of St. Louis] v. Armstrong, 
 56 Mo. 298, 1874, is a strong instance in 
 which the city was held to ratify the acts 
 of its officers by availing itself- of the 
 benefit of their acts. The case was this : 
 The city wished to build a sewer through 
 the defendant's lot ; it was necessary to 
 condemn or get his consent ; he consented 
 
§ 466.] 
 
 CONTRACTS. 
 
 463 
 
 § 466. (388) Letting to the Lowest Bidder. — Where the charter 
 or incorporating act requires the officers of the city to award 
 contracts to the lowest bidder, a contract made in violation of its 
 requirements is illegal ; and in an action brought on such con- 
 tract for the work, the city may plead its illegality in defence ; ' 
 
 on condition that he could have three 
 years in which to pay his proportion of 
 the cost of tlie sewer ; the officers of tlie 
 city, witliout any express authority, so 
 agreed. The sewer was built, and before 
 the three years expired the city sued the 
 defendant for his portion of the cost of 
 the sewer, and it was held that the suit 
 was prematurely brought, ami that tlie 
 city, by using the defendant's land under 
 the agreement of its officers, was bound 
 by that agreement. What would liave 
 been the rights if the city had put the 
 defendant in statu quo, by condemning the 
 right of way, and tendering tlie amount 
 before bringing suit for the cost of the 
 sewer, was a question not involved, and 
 not decided. 
 
 In applying the doctrine that unauthor- 
 ized corporate acts may be ratified, other 
 principles of law must be borne in mind. 
 The care which, in this respect, should 
 be ohserved, is very clearly set forth by 
 Denio, J., in giving judgment in Peterson 
 V. Mayor, etc. of New York, 17 N. Y. 449, 
 454, 1858. " For instance, no sort of ratifica- 
 tion can make good an act without the 
 scope of llie corporate authority. So where 
 the charter or a statute binding upon the 
 corporation has committed a class of acts 
 to particular officers or agents, other than 
 the governing body, or where it has pre- 
 scribed certain formalities as conditions 
 to the performance of any description of 
 corporate business, the proper functiona- 
 ries must act, and the designated forms 
 must be observed, and generally no act of 
 recognition can supply a defect in these 
 respects." Brady v. Mayor, etc., 20 N. 
 Y. 312; Hodges v. BufEaio, 2 Denio (N, 
 Y.), 110; 17 N. Y. 584; Gates v. Han 
 cock, 45 N. H. 528; Reilly „. Pliiladel 
 phia, 60 Pa. St. 467 ; supra, sees. 4()3, 464 ; 
 Wilhelm v. Cedar County, 50 Iowa, 254. 
 
 Where the corporation can only act by 
 ordinance, the ratification must be by or- 
 dinance. McCracken v. San Francisco, 
 16 Cal. 591, 1860 ; Piemental c. San Fran- 
 
 cisco, 21 Cal. 351 ; Cross v. Morristown, 
 18 N. J. Eq. 305, 1867 ; ante, ch. xii. 
 
 Legislature may, within constitutional 
 limits, ratify or aut/iorize ratification. Camp- 
 bell V. Kenosha, 5 Wall. 194 ; Supervi- 
 sors V. Sclienck, lb. 772; Keith sburg w. 
 Frick, 34 111. 405; Mills w. Gleason, 11 
 Wis. 470 ; Winn v. Macon, 21 Ga. 275 ; 
 Grogan v. San Francisco, 18 Cal. 590, 
 1861 ; llasbrouck v. Milwaukee, 21 Wis. 
 217, 1806; Mills v. Charleton, 29 Wis. 
 400, 1872; s. c. 9 Am. liep. 578 andnote; 
 ante, sec. 79 ; sec. 161, note. In Shawnee 
 County V. Carter, 2 'Kan. 115, 1863, the 
 Supreme Court of Kansas held invalid, as 
 not being within the rightful scope of 
 legislative power, an act of the legislature 
 which declared valid and binding bonds 
 which had been issued by the county offi- 
 cers on account of the county court-house, 
 and which bonds were not enforceable 
 against the county because differing in 
 form and substance from the warrants 
 authorized by the statute. Such a strict 
 limitation on legislative power is not gen- 
 erally asserted. See, on this point, ch. 
 iv. nnfe. 
 
 ' Brady r. Mayor, etc. of New York, 
 30 N. Y. (6 Smith) 312, 1859. It is inti- 
 mated that it is not essential to the de- 
 fence that the city should show a fraudu- 
 lent collusion between the bidder and tha 
 officers awarding the contract. Whether 
 the city is liable on a quantum meruit to 
 one who has bona fide performed labor un- 
 der a void contract where the work has 
 been accepted and used, was not deter- 
 mined. 7/). s. c. 2 Bosw. 173; 7 Abb. 
 Pr. R. 284; 16 lb 432. As further illus- 
 trating the text, see People v. Flagg, 17 
 N. Y. 584 ; Peterson i'. Mayor, etc., 17 N. 
 Y. 457, referring to but expressing lUr 
 opinion upon Christopher i'. Mayor, etc., 
 13 Barb. (N. Y.) 567; Appleby v. Mayor, 
 etc., 15 How. (N. Y.) Pr. 428; Harlem 
 (Jas Co. V. Mayor, etc, of New York, 33 
 N. Y. 389 ; Macey v. Titcombe, 19 Ind. 
 153, 1862; Bonesteel v. Mayor, etc., 22 
 
464 
 
 MUNICIPAL COEPOEATIONS. 
 
 [CH. XIV. 
 
 and neither the municipality nor its subordinate officers can make 
 a binding contract for such work except in compliance with the 
 requirements of the law.^ So where the charter requires any 
 sale or lease of the real estate of a city to be made at publio 
 auction to the highest bidder, an ordinance of the council of the 
 city making a lease of a portion of its realty, upon the payment 
 of a rent reserved, is void.^ 
 
 N. Y. 162 ; Smith v. Mayor, etc., 21 How 
 (N. Y.) Pr. 1 ; Greene v. Mayor, 60 N. Y. 
 303, 1876; reversing s. c. 1 Hun, 29 
 Yarnold v. Lawrence, 15 Kan. 126, 1875 
 Dickinson v. Pouglikeepsie, 74 N. Y. 65, 
 citing text; Eager, m re, 46 N. Y. 100 
 Nasli V. St. Paul, 8 Minn. 172, 1863 ; s. c. 
 11 Minn. 174 ; White v. New Orleans, 15 
 La. An. 667 ; State v. Barlow, 48 Mo. 17, 
 1871 ; post, sec. 832, note ; Breevort v. 
 Detroit, 24 Mich. ^22, 1872 ; May v. De- 
 troit, 2 Mich. Cir. C. Rep. 235, 1871. 
 There can be no recovery against a mu- 
 nicipal corporation for extra work where 
 the officers wlio requested it to be dune 
 had no authority. Hague v. Philadelphia, 
 48 Pa. St. 527 j O'Hara v. New Orleans, 
 30 La. An. 152 ; Addis v. Pittsburg, 85 Pa. 
 St. 379, 1877 ; Bonesteel y. Mayor, etc. of 
 New York, 22 N. Y. 162. Thus a contract 
 by S. to erect a building for a city stipu- 
 lated that the work should be done ac- 
 cording to certain plans and specifications ; 
 that a certain committee, or the architect, 
 might direct in writing any deviations 
 therefrom, in which case such sums of 
 money sliould be added to or deducted 
 from the agreed price as the parties 
 should judge the increase or diminution 
 to be worth, and that no alterations should 
 be paid for unless directed in writing. In 
 excavating, the soil was found by the 
 architect to require piles to be driven to 
 secure a firm foundation ; whereupon he 
 furnished piling plans, directed S. to do 
 the work, and orally promised him that 
 he should be paid for it Held, that the 
 city was not bound by the architect's oral 
 promise. Stuart v. Cambridge, 125 Mass. 
 102. 
 
 If the lowest bidder is required to give 
 security and the law requires public notice 
 of proposals, any contract without a com- 
 pliance with the law is unauthorized and 
 void. Dickinson v. Pouglikeepsie, 74 N. Y. 
 
 6^ ; Eager, in re, 46 N. Y. 100 ; Maxwell ». 
 Stanislaus, 53 Cal. 389. 
 
 A provision that the " commissioners 
 shall in no case proceed witli the con- 
 struction of any sewer except upon ad- 
 vertisement" to be let to the lowest 
 bidder, applies only to a contract for 
 original construction. If the original con- 
 tractor abandons the work, it is not necJes- 
 sarx to re-advertise and let to the lowest 
 bidder, the original contractor being lia- 
 ble for the excess of cost over his contract 
 price. Leeds, in re, 53 N, Y. 400, 1873. 
 
 Where contracts for public work are 
 required by law to be made by advertis- 
 ing proposals and specifications for the 
 purpose of securing competitive bidding, 
 such specifications must be definite as to 
 the quantity as well as the quality of 
 materials required, or the contract will 
 be void. Bigler v. New York, 5 Abb. 
 (N. Y.) N. Caa. 61. A bid for street-pav- 
 ing is not defective in not distinguishing 
 between the portions of the improvement 
 chargeable to the lots fronting on the 
 street, and the portion chargeable to the 
 city, where the relative proportions have 
 already been fixed. Benileau v. Detroit, 
 41 Mich. 1 Ifi. Remedy of tax-payer. FoU- 
 mer v. Nuckolls, 6 Neb. 204, 1878 ; com- 
 pare Clark V. Dayton, lb. 192. 
 
 1 Addis u. Pittsburg, 85 Pa. St. 379, 
 1877. 
 
 2 S. F. & D Railroad Co. v. Oakland, 
 43 Cal. 503, 1872. 
 
 Where the charter requires that all 
 work for the city shall be let to the lowest 
 bidiler, after a prescribed notice of the 
 time and place of letting shall have been 
 given, and requires that similar notice 
 shall be^given where work is re-let, an 
 assessment upon a lot for work done is 
 void if the contract was let or re-let 
 without notice. Mitchell v. Milwaukee, 
 18 Wis. 92, 1864 ; see, also. Wells k. Burn- 
 
§ 468.] 
 
 CONTRACTS. 
 
 465 
 
 § 467. (389) The Supreme Court of Michigan has affirmed, 
 while the Supreme Court of Wisconsin and of other atates have 
 denied, the proposition that where a city charter provides that 
 no contracts shall be made by the city except with the lowest 
 bidder, after advertisement of proposals, it does not prohibit the 
 corporation from contracting to lay Nicholson pavement, though 
 the right to lay it is patented and owned by a single firm. The 
 question is close, but there seems, so far, to be a tendency in the 
 courts to adopt the Wisconsin view.^ 
 
 § 468. (390) Where the municipal authorities were required 
 by law to advertise for sealed proposals for making local improve- 
 ments, and award the work to the lowest responsible bidder, to 
 publish a notice of the award, and to allow the owners of the 
 major part of the frontage to take the contract upon the same 
 terras if they should desire, the court were of opinion that the 
 city authorities had no power to do work which could not be 
 contracted for in this mode, or which the abutters could not 
 themselves perform, and that the award of a contract for 
 a patented pavement to the assignee of the patentee, who had 
 
 ham, 20 Wis. 112 ; Hasbrouck v. Milwau- 
 kee, 21 Wis. 217, 1866. Owner may, in 
 such case, restrain the sale. lb. The con- 
 tract must be the same tliat was adver- 
 tised. Nash V. St. Paul, 11 Minn. 174. 
 
 1 Dean «. Charlton, 23 Wis. 590, 1869; 
 Nicholson Pavement Co. v. Painter, 35 Cal. 
 699; Hobart v. Detroit, 17 Mich. 246, 1868. 
 Dean v. Charlton, supra, was approved by 
 Sutherland, J., in Dolan v. Mayor, etc. of 
 New York, 4 Abb. Pr. (N. S.) 397, 1868, 
 and followed by the Supreme Court of 
 Louisiana in Burgess v. Jefferson, 21 La. 
 An. 143, 1869, in which it appeared that 
 the contractors with the city had the ex- 
 clusive right to lay the patented pave- 
 ment in the state. But under provisions 
 of law relating to the city of New York, 
 which require all work to be done and 
 supplies to be furnished to be by con- 
 tract, where the expenditure will exceed 
 $1,000, and which direct all contracts to 
 be made or let, after advertisement, to 
 the lowest bidder, the city council is not, 
 in the opinion of the court of appeals, 
 prohibited from making or paving a street 
 in the manner or with materials which 
 do not admit of competitive bids. Dugro, 
 
 VOL. I. 30 
 
 in re, 50 N. Y. 513, 1873. The subject 
 is discussed by Bremer, J., in Yarnold v. 
 Lawrence, 15 Kan. 126, 1875, who in- 
 clined to the Michigan yievr, but the ques- 
 tion was not decided by the court. Fur- 
 ther, as to rights of lowest bidders, see 
 Attorney-General v. Detroit, 41 Mich. 
 224 ; 8. c. 12 Am. Law Reg. (N. S.) 149 ; 
 post, sees. 468, 870, ii., 909, 791, n. Sequel 
 to Dean v. Charlton, supra, see Mills ». 
 Charleston, 29 Wis. 400, and Dean v. 
 Borchenius, 30 Wis. 236, the legislature- 
 having validated the assessment. Posif 
 sec. 814 and note. See, also, Eager, in 
 re, 46 N. Y. 100, 1871. Liability of city 
 to patentee to pay him "royalty." Bige- 
 low V. Louisville, 3 Fish. Pat. Cas. 602, 
 1869 ; post, sec. 966, where a charter does 
 not require a contract to be let to the low- 
 est bidder after advertising for proposals 
 at the expense of abutters. Although 
 such contracts may be made by private 
 agreement with the city, they must be 
 fairly made at reasonable prices, with 
 due regai-d to the lot owners' interests, or 
 equity will relieve against them. Cook 
 V. Racine, 5 N. W. Rep. 352. 
 
466 MUNICIPAL CORPORATIONS. [CH. XTV. 
 
 the exclusive right to lay the same, was unauthorized, and the 
 contract void.^ 
 
 As the purpose of such a provision in the charter is to secure, 
 through competition, the most advantageous terms, something is 
 necessarily left to the discretion, to be fairly exercised, of course, 
 of the council, in the adoption of the course which will best 
 attain the end ; and it does not contravene this restriction to call 
 for bids putting down various kinds of wood and stone pave- 
 ments, some patented and som^ not, and afterwards, when all 
 the proposals are in, selecting the one whicli is relatively the 
 lowest or the most satisfactory, all things considered ; but when 
 the kind is thus selected, the lowest responsible bidder, who has 
 the lawful power to perform his undertaking, has the absolute 
 legal right to have the contract awarded to him.^ 
 
 § 469. (391) In an action on a contract for lighting certain 
 streets in New York City with gas, it appeared that the company 
 had, by law, the exclusive right to furnish that part of the city 
 with gas. The charter of the city, however, required all contracts 
 for wants and supplies beyond a certain value, which the con- 
 tract in suit exceeded, to be let to the lowest bidder, and the 
 contract not being so let, it was claimed to be void. It was lield 
 that since the company had the exclusive right to furnish the 
 gas (which prevented competition), the provision of the charter 
 requiring contracts to be let to the lowest bidder (with a view 
 to secure competition) was inapplicable, and the contract was 
 sustained under the general corporate power of the city to con- 
 tract for the lighting of its streets.^ 
 
 4 
 
 ' Nicholson Pavement Company v. The council of a city held to haye no 
 
 Fainter, 35 Cal. 699, 1868. This case power to contract for the grading of a 
 
 was decided before Dean v. Charlton, street until they first shall have enacted 
 
 mpra, and the opinion of Sanderson, J., an ordinance for the smd improvement, 
 
 in its general scope, sustains the view of nor except such contract be let to the 
 
 the Wisconsin court ; and approving of lowest bidder, after publication of notice 
 
 the language of Field, C. J., in Zottman's and fair competition. Fulton v. Lincoln, 
 
 Case, 20 Cal. 102, treats " the mode as 9 Neb. 358. 
 
 constituting the measure of the power." ' Harlem Gas Co. v. Mayor, etc., 33 N. 
 
 Post, ch. xix. ; ante, sec. 98 ; post, sec. Y. 309. Where a city has authority to 
 
 669. contract therefor, it cannot resist payment 
 
 ' Attorney-General v. Detroit, 41 Mich, for gaslight furnished, because of illegal 
 
 224; s. c. 12 Am. Law Reg. (N. S.) March, promises as to the particular fund from 
 
 1873, p. 149. Remedy of lowest bidder which payment would be made. The 
 
 when contract is awarded to another, consideration of such promises being 
 
 III.; Kelly v. Chicago, 62 111. 279, 1871; legal, the price would be payable, if not 
 
 post, ch. xxii. sec. 917. otherwise, out of the general fund ; and 
 
§ 470.] 
 
 CONTRACTS. 
 
 467 
 
 § 470. (392) Although notice has been published inviting 
 proposals to do public work, yet the contract is incomplete until 
 the proposal is actually accepted, and the corporation inviting 
 the proposal is not, it seems, liable to damages for refusing to 
 accept an offer, even though it be the lowest regular offer made. 
 It is certainly not thus liable where the notice and the proposals, 
 with respect to the amount and form of the security, do not com- 
 ply with the requirements of the ordinances of the city, and 
 where these provided that contracts should not be executed until 
 laid before the common council.^ The rule against combinations 
 to prevent bidding at auction sales applies to proposals for gov- 
 ernment work, in response to a call therefor, aiming at a contract 
 with the lowest bidder ; and a combination of contractors whereby 
 the privilege of bidding is secured by one, without competition, 
 is against public policy and illegal ; and if it results in a letting 
 
 the objectionable provisions may be re- 
 jected, and the rest of the contract per- 
 mitted to stand. Nebraslca City v. 
 Nebraska Gas Co., 9 Neb. 339. 
 
 1 Smith V. Mayor, etc. of New York, 
 10 N. Y. (6 Seld.) 504, 1853, affirming 
 8. c. 4 Sandf. S. C. R. 221. " The notice 
 inviting proposals to do the work," says 
 Willard, J., delivering the opinion of tlie 
 court of appeals (10 N. Y. 504), "did 
 not, in my judgment, bind the street 
 commissioner of the corporation to ac- 
 cept, at all events, the lowest bid, even 
 though in all respects formal. Until 
 the' bid is accepted by some act on the 
 part of the corporation, no obligatory 
 contract was created." See, also, People v. 
 Croton Aqueduct Board, 26 Barb. (N. Y.) 
 240 ; Greene u. Mayor, etc. of New York, 
 60 N. Y. 303, 1875 ; State v. Directors, 
 etc., 5 Ohio St. 234, 18.55; Altemus o. 
 Mayor, etc., 6 Duer (N. Y.), 446; Ar- 
 gent! V. San Francisco, 16 Cal. 255; 
 Wiggins V. Philadelphia, 2 Brews. (Pa.) 
 444 ; Jh. 443. 
 
 A board of commissioners charged 
 with the duty of contracting for a public 
 work need not call for bids or proposals 
 unless expressly required. Bnt if they 
 choose to invite competition, they may, 
 after accepting a bid, alfer the specifica. 
 tions furnished by the bidder before exe- 
 cuting the contract; and this without 
 the knowledge of competing bidders. 
 
 Kingsley v. Brooklyn, 5 Abb. (N. Y.) N. 
 Cas. 1. The duties and liabilities of a city 
 and its officers under a contract for the 
 building of extensive water-works, consid- 
 ered. A provision in the act authorizing 
 the work, for the preliminary adoption of 
 a " plan " therefor by the city, does not 
 prevent subsequent changes in the details 
 of the work. And where, after altera- 
 tions had been made and extra work 
 directed during the progress of the un- 
 dertaking, the contractors were stopped 
 by the city before completing it, — Held, 
 that they could recover for work done 
 up to the limits of the appropriation 
 authorized by the act, though the work 
 was incomplete, ■ the legislature having 
 recognized the necessity of further outlay 
 by an act autliorizing an additional appro- 
 priation. V7here a public work is, under a 
 statute, to be contracted for by city officers 
 according to a plan to be adopted by the 
 city, with a proviso that the whole ex- 
 pense shall not exceed a certain sum, to 
 be raised by issm'ng city bonds, a con- 
 tract for doing the work for a sum within 
 that amount is valid, although it re- 
 serves authority to the officers directing 
 the work to make such changes of detail 
 as may be necessary, and fix the price of 
 whatever extra work may be required. 
 76. 
 
 Further as to lowest Udder, see chapter 
 on Mandamus, post, sees. 870, n., ch. xxiii. 
 
468 MUNICIPAL CORPORATIONS. [CH. XIV. 
 
 at unreasonable prices, authorizes a rejection of the proposal or a 
 repudiation of the contract.^ 
 
 § 471. (393) Contracts of Suretyship. — A municipal corpora- 
 tion cannot, without legislative authority, become surety for an- 
 other corporation or individual ; caunot guaranty the bonds or 
 oblisatious of another, or make accommodation indorsements. 
 Such an authority cannot be implied or deduced from the gen- 
 eral and usual powers conferred upon such corporations. Al- 
 though such a corporation may have power directly to accomplish 
 a certain object, and itself expend its revenues or money therefor, 
 yet this does not give or include the power to lend its credit to 
 another who may be empowered to effect the same object. Ex- 
 pending money by a city council, as agents or administrators of 
 their constituents, is a very different thing from binding their 
 constituents by a contract of suretyship, — "a contract which 
 carries with it a lesion by its very nature." Thus, the indorse- 
 ment of the bonds of a street railroad in a city, by the city 
 authorities, is not within the ordinary administrative powers of 
 the corporation, and requires express legislative grant.^ 
 
 1 People V. Stephens, 71 N. Y. 527. the credit of tlie city, a private corpora- 
 ^ Louisiana State Bank ». Orleans tion to build it, and to take the profits of 
 Navigation Co., 3 La. An. 294, 1848. In it. We do not think this is within the 
 this case the municipal corporation was ordinary scope of municipal authorities, 
 sought to be made liable upon its guar- nor can any authorities, as we believe, be 
 anty of bonds issued by the Navigation found carrying the objects of a corpora- 
 Company, which the mayor, in the name tion that far. We are clear that the pro- 
 of the municipality, was authorized, by posed indorsement is v)tra vires." 
 certain resolutions of the council, to in- A municipal corporation has no implied 
 dorse. It was held that the council trans- power to lend its credit or make accommo- 
 cended its powers, and the guaranty did dation paper for the benefit of citizens, to 
 not impose any legal obligation upon the enable them to execute private enter- 
 municipality. The disability of such cor- prises. Clark v. Des Moines, 19 Iowa, 
 porations, without express power, to enter 199, 224, 1865; 1 Parsons N. &B. 166; 
 into contracts of suretyship is shown in Smead ». Railroad Co., 11 Ind. 105. 
 the masterly and exhaustive opinion de- The power to borrow money for any pub- 
 livered by Eustes, C. J. See, also, Blake lie purpose does not autliorize the loan of 
 I'. Mayor, etc. of Macon, 63 Ga. 172. 1874. the credit of the city. Cliamberlain ». 
 In this case McCay, J., says: "The ob- Burlington, 19 Iowa, 395; contra, Rogers 
 jects of a municipal corporation are, in w. Burlington, 3 Wall. 654, four judges 
 the main, the preservation of order, and dissenting. And see Meyer v. Muscatine, 
 the doing of such acts for the public good 1 Wall. 384. The author cannot but 
 as cannot well be done by private enter- think that power to a corporation to tor- 
 prise. But here is a private enterprise, row money should not be construed to 
 and it is insisted that it is within the give the power to loan its credit, but only 
 scope of municipal power not to build a to borrow money for legitimate and 
 street road, but to aid, by a donation of proper municipal objects, as shown by 
 
§ 473.] • CONTRACTS. 469 
 
 § 472. (394) Authorized Contracts. — Rights and Liabilities. — 
 But with respect to authorized contracts a municipal corporation 
 has the same rights and remedies, and is bound thereby, and may 
 be sued thereon in the same manner as individuals.^ Thus, if 
 such a corporation, duly empowered, enters into a partnership 
 relation with private individuals with respect to the profits to be 
 derived from a market-hou.<?e, its rights, especially as regards the 
 copartners and the financial administration of the partnership 
 property, are not different from those of an ordinary partner.^ 
 
 § 473. A city incorporated under the general law of Indiana has 
 power, with respect to the lighting of its streets and public build- 
 ings, etc., to contract with a gas company on that subject, and may 
 exercise such power within the limits of its franchise according 
 to its own discretion. Such a contract, when made, must be re- 
 garded as made by such city in the exercise of its po.wer to con- 
 tract and not in its power to legislate, although the power to 
 make the contract be authorized by an ordinance. And when, by 
 the terms of such contract, the city is not restricted from the 
 legitimate exercise of its public power touching the subject mat- 
 ter thereof, but expressly reserves its administrative authority to 
 keep the posts, lamps, and burners in good repair if the company 
 should fail to do so, and also reserves the right to test the quality of 
 
 the charter or constituent act of the cor- Co. v. Applewhite, 62 Ind. 464; Jennings 
 
 poratlon. See Payne v. Brecon, 3 Hurl. Co. v. Verbarg, 63 Ind. 107 ; Indianapolis 
 
 & Nor. 672 ; ante, sec. 117 ; Bateman v. v. Indianapolis Gas Co., 66 Ind. 396, cit- 
 
 Mid- Wales Railway Co., Law Rep. 1 C. jng and approving text. 
 
 P. 510. Power to guarantee payment of ^ New Orleans v. Guillotte, 12 La. An. 
 
 authorized contracts. Memphis v. Brown, 818, 1857. In New Orleans v. St. Louis 
 
 20 Wall. 289, 1873. Church, 11 La. An. 244, 18.56, it was con- 
 
 1 Corporations may make contracts tended by the cminsel for the city that 
 
 within the powers expressly granted by even if certain resolutions in favor of the 
 
 the acts of tlieir creation and to the im- defendants, allowing them to establish a 
 
 plied powers incidental and necessary to cemetery within the city, amounted to a 
 
 tlie execution of such expressed powers contract, and though their repeal be not 
 
 and the performance ofthe duties enjoined justified by the facts, and a violation of 
 
 upon them. For these purposes it will be the contract by the city, yet that the lat- 
 
 bound to perform them the same as indi- fer has the power to violate its contracts, 
 
 vidnals. Hight v. Monroe Co., 68 Ind. and the defendants have no redress ex- 
 
 576; Seibrecht v. New Orleans, 12 La. cept in an action for damages. But tills 
 
 An. 496; Strauss v. Ins. Co., 5 Ohio St. doctrine was rejected by the court, which 
 
 59; Douglass v. Virginia City, 5 Nev. declared it to be as "unsound as it is 
 
 147; Hayward w. Davidson, 41 Ind. 212; novel," since a liability for damages is 
 
 McCabe v. Fountain Co., 46 Ind. 880 ; " the very opposite of a recognition of a 
 
 Burnett a. Abbott, 51 Ind. 254 ; Gordon right to violate the sontract." Per Bu- 
 
 V. Dearborn Co., 52 Ind, 322 ; Jackson chanan, 3. 
 
470 MUNICIPAL COEPOKATIONS. [CH. XIV. 
 
 the gas furnished by said company, and the capacity of the burners 
 at all times, and is not restricted from extending its streets, estab- 
 lishing an additional number of lamps, obtaining gas from other 
 sources, or establishing its own gas-works as the public interests 
 may require, such contract, not being a restriction upon its legis- 
 lative power nor fraudulent nor against public policy, is valid and 
 binding upon such city, and may be enforced in the same manner 
 as the contract of a person or business corporation, and cannot be 
 repealed, impaired, or changed by *he city, by ordinance or other- 
 wise.^ 
 
 § 474. (395) So where a municipal corporation, acting within 
 the scope of its powers, in order to secure the erection of gas- 
 works, passed an ordinance whereby the gas-works and their in- 
 come were placed in the hands of trustees for the benefit of those 
 who loaned money to execute the undertaking, guch ordinance is 
 a contract, and cannot be violated by the city, although it may 
 deem it for the interest of its citizens to do so ; nor is it in the 
 power of the legislature to authorize its violation.^ 
 
 475. (396) So where the mayor and council have, by the 
 charter, power to make, in their corporate capacity, all such con- 
 tracts as they may deem necessarj"^ for the welfare of the corpor- 
 ation, they may contract to sell stock owned by the city in a 
 private corporation, to enable the city to pay its debts ; and the 
 discretionary power with which the mayor and council are in- 
 vested cannot, when bona fide exercised, be controlled by a court 
 of equity, at the instance of property owners and tax-payers.* 
 
 § 476. (397) Power to a city corporation to pave streets at 
 the expense of the owners and recover the amount from them if 
 they fail themselves to pay when required by ordinance, gives the 
 corporation the power to purchase paving materials and incur a 
 debt for that purpose ; and in a suit by the vendor of such 
 
 1 Indianapolis v. Indianapolis Gas Co., 8 Semmes !>. Columbus, 19 Ga. 471, 
 66 Ind. 396. 1856 ; followed and text approved, Shan- 
 
 2 Western Savings Fund Society » non i;. O'Boyle, 51 Ind. 565, 1876; ante, 
 Philadelphia, 81 Pa. St. 175, 1854 ; Same see. 94 ; post, chapter on Corporate Prop- 
 V. Same, 76. 185, 1858; Indianapolis v. erty, sec. 575: pos«, ch. xx.; Bush v. Car- 
 Indianapolis Gas Co., 66 Ind. 396, citing bondale, 78 111. 74, 1875. 
 
 and approving text ; ante, ch. iv. sec. 69. 
 
§ 478,] CONTRACTS. 471 
 
 materials against the corporation, it is no defence that the council 
 had not passed an ordinance before they purchased the materials, 
 requiring the owners to pave : this is a matter to which a creditor 
 is not bound to look. The question would be different if the city 
 had sought to make the lot owner liable for the cost of paving ; 
 in such case, it must show a strict compliance with the require- 
 ments of its charter.^ 
 
 § 477. (398) Settlement of Disputed Claims, etc. — Growing 
 out of its authority to create debts and to incur liabilities, a 
 municipal corporation has power to settle disputed claims against 
 it, and an agreement to pay these is not void for want of consid- 
 eration.2 If it has obtained a contract which, by mistake or a 
 change of circumstances, it deems to operate oppressively upon 
 the other party, an agreement to make an additional compensation, 
 or to modify or annul it, is not invalid for want of consideration.^ 
 A town may make a contract with a creditor whereby the latter 
 agrees to discount or throw off a portion of his debt, and such an 
 agreement, if founded on a sufficient consideration, will be en- 
 forced.* 
 
 § 478. Power to arbitrate Claims. — As a general proposi- 
 tion, municipal corporations have the same powers to liquidate 
 
 ^ Bigelow V. Perth Amboy, 1 Dutch, be taken, the council may, if done in good 
 
 (N. J.) '297, 1855; post, ch. xix. faith, cancel the judgment on the pay- 
 
 ^ Augusta V. Leadbetter, 16 Me. 45, ment of costs ; and such an agreement, 
 
 1839 ; Bean v. Jay, 23 Me. 117, 121, 1843; when executed, is binding upon the cor- 
 
 People V. Supervisors, 27 Cal. 655; Peo- poration. Petersburg v. Mappin, 14 111. 
 
 pie V. Coon, 25 Cal. 648. It may annex 193, 1852; Supervisors v. Bowen, 4 Lans- 
 
 conditions to a proposal of settlement, and ing (N. Y.) 24, 1871. 
 is not liable unless the condilions are met. * Baileyville v. Lowell, 20 Me. 178, 
 
 Merrill v. Dixfield, 30 Me. 157, 1849. A 1841. In this case, the town, against 
 
 municipality may, without special grant, which the creditor had an execution, had 
 
 issue new bonds in the place of old bonds the option, and was authorized, to raise 
 
 which had been issued according to law. the money by loan or by assessment ; 
 
 Rogan V. Watertown, 30 Wis. 259, 1879; and if in the latter mode, either at once 
 
 infra, sec. 504, note. or by instalments. If not raised and paid, 
 
 8 Bean v. Jay, 23 Me. 117, 121 ; Meech the creditor was authorized to cause the 
 
 V. Buffalo, 29 N. X. 198, 1864. Further, property of the inhabitants to be dis- 
 
 as to consideration, Baileyville v. Lowell, trained upon his writ. It was held, under 
 
 20 Me. 178, 1841; Nelson v. Milford, 7 these circumstances, that an agreement 
 
 Pick. (Mass.) 18, 1828, valuable opinion by the creditor, wliich was accepted and 
 
 of Parker, C. J. ; see People •;. Stout, 23 complied with by tlie town, that if tlie 
 
 Barb. (N. Y.) 349; ante, ch. iv. sec. 76. town would a« once assess the amount re- 
 
 The power to sue and be sued gives to a quired, and collect the same, he would 
 
 corporation the right to settle or compro- abate a portion of his debt, was founded 
 
 raise claims. Where a city has a .iudg- upon a sufBcient consideration, and was 
 
 ment, from which an appeal is about to binding upon him. 
 
472 MUNICIPAL CORPOEATIONS. [CH. XTV. 
 
 claims and indebtedness that natural persons have, and from that 
 source proceeds power to adjust all disputed claims, and when 
 the amount is ascertained to pay the same as other indebtedness. 
 It would seem to follow therefrom that a municipal corporation, 
 unless disabled by positive law, could submit to arbitration all 
 unsettled claims with the same liability to perform the award as 
 would rest upon a natural person, provided, of course, that such 
 power be exercised by ordinance or resolution of the corporate 
 authorities. It is no objection to ^je validity of such ordinance 
 that it was passed at a meeting of the city council at which all 
 members were not notified to be present, provided that the ordi- 
 nance be approved at a subsequent regular meeting. Nor is the 
 ordinance an act ultra vires the corporation, although the work for 
 which damages are claimed was done outside of the city limits, 
 provided it is a part of a work whi<jh the corporation has power 
 to perform.^ In some cases it is held that a city has no power to 
 submit to arbitration claims for damages arising under the power 
 of eminent domain.^ 
 
 § 479. (399) Contracts with Attorneys. — Resulting also from 
 the power to make contracts, to own property, and to incur 
 liabilities, is the authority in a municipal corporation, in the 
 absence of express or implied restriction, to employ an attorney, ^ 
 
 1 City of Shawneetown v. Baker, 85 if not absolutely, an implied restriction 
 
 111. 563; Dix o. Dummerston, 19 Vt. upon city anil county corporations to em- 
 
 263 ; Grigwold v. Stonington, 5 Conn, ploy other attorneys to perform the pre- 
 
 367; Canal Co. v. Swann, 5' How. (U. S.) cise duties, as prescribed by law, of the 
 
 83. Power exists unless the corporation city and county attorneys elected by the 
 
 be disabled. Corporation, etc., in re, 6 people or provided for by incorporating 
 
 Tipper Can. Law Jour. 207 ; Corporation, statutes. Compare Thacher v. JeflF. Co., 
 
 etc., in re, 19 Upper Can. Q. B. 450. 13 Kan. 182, and cases cited; Hugg ;;. 
 
 - Post, eh. xvi. Camden (right to employ counsel in ad- 
 
 ' Smith V. Sacramento, 13 Cal. 531 ; dition to the city solicitor), 29 N. J. Eq. 
 
 State V. Paterson, 40 N. J. L. 186. May (2 Stewart) 6, 1878. A municipal cor- 
 
 employ, unless specially restricted, an poration which has employed an attorney 
 
 attorney in addition to the city attorney, to file a bill seeking to destroy by suit 
 
 76. The employment of outside counsel the existence of the corporation itself, 
 
 must, of course, be duly authorized by cannot apply the corporate funds in pay- 
 
 the municipality. Memphis v. Brown, 20 ment of such services. Daniel v. Mayor, 
 
 Wall. 289, 321, 1873; Memphis v. Adams, etc., 11 Humph. (Tenn.) 582, 1851 ; post, 
 
 9 Heisk. (Tenn.) 518, 1872 ; s. c. 24 Am. sec. 910, note. 
 
 Rep. 331 ; Clark v. Lyon Co., 8 Nev. 181, Unless there is some special restriction 
 1872; Ellis a. Washoe Co., 7 Nev. 291; the corporation may incur liability to corn- 
 see Hornblower v. Dunden, 35 Cal. 644; pensate an attorney employed by it to con- 
 compare Clough o. Hart, 8 Kan. 487. duct or defend suits which relate to the 
 This case holds that there is prima facie, due performance of the duties or trusts 
 
§ 479.] 
 
 CONTEACTS. 
 
 473 
 
 to conduct or defend suits in which the corporation is interested 
 in its corporate capacity, and the corporation is bound to pay for 
 services rendered by him on due employment, without an express 
 vote to that effect.^ If a corporation attorney, after his term of 
 office has expired, continues in the management of suits in which 
 the corporation is interested, without olijection from, and with the 
 knowledge of, the corporation and of his successor, he may, it has 
 been held, recover for such services.^ An attorney was employed 
 upon a quantum meruit by the city to conduct a case to a final 
 termination, and pending the litigation was appointed city coun- 
 sellor, when it became his official duty to act for the city ; and 
 it was held that, in the absence of an express contract, he could 
 not recover for the value of such services as were rendered after 
 his appointment. It might be otherwise if the original employ- 
 ment had been to carry the suit through for an agreed sum.^ 
 
 with which, in its corporate capacity, it 
 is charged by law. Attorney-General v. 
 Mayor, etc. of Norwich, 2 Myl. & Cr. 406 ; 
 Lewis V. Mayor, etc. of Rochester, 9 Com. 
 B. (N. S.) 401, 1860 ; ante, sec. 147. A city 
 owning stoclc in a, railroad company in 
 another state may, in virtue of such own- 
 ership, unless specially restricted, employ 
 counsel to attend to its interests in such 
 state. Memphis v. Adams, supra. The 
 Supreme Court of Wisconsin hold that no 
 action will lie against a city having " the 
 general powers of municipal corporations 
 at common law " to recover compensation 
 for services of counsel to aid in criminal 
 prosecutions against persons who liad lately 
 been officers of the city for offences com- 
 mitted under color of their official duties, 
 resulting in pecuniary injury to the city. 
 Butler V. Milwaukee, 15 Wis. 493. In 
 Indiana a county board has no power to 
 employ counsel to conduct criminal prose- 
 cutions, and cannot be compelled to pay 
 for services rendered. Hight o. Board, 
 etc. Monroe Co. N. W. Rep., 1 Ind. Supp. 
 20 ; Eiley Co. v. Ward, 76. In Iowa the 
 board of supervisors may employ special 
 agent or attorney to assist in the collec- 
 tion of taxes not collectible by county 
 treasurer in the discharge of his duty. 
 Withelm v. Cedar Co., 50 Jowa, 524. 
 Compare ante, sec. 89, and cases there 
 cited, as to power to offer rewards for 
 ofEeuders. Buttrick v. Lowell, 1 Allen 
 
 (Mass.), 172. Cannot recover for defend- 
 ing pauper criminals in Alabama. Fosey 
 V. Mobile Co., 50 Ala, 6, 1873. 
 
 1 Langdon v. Castleton, 30 Vt. 285, 
 1858. 
 
 2 lb. ; see Harrington v. School Dis- 
 trict, 30 Vt. 155 ; supra, sec. 459, as to im- 
 plied contracts. Compare Clough v. Hart, 
 8 Kan. 487. Compensation of city attorney. 
 See Carroll v. St. Louis, 12 Mo. 444 ; Orton 
 V. State, 12 Wis, 509 ; also, chapter on 
 Corporate Officers, ante. Liability for 
 attorney's fee under charter or special 
 statutes, see Brady v. Supervisors, 2 
 Sandf. S. C. R. 460, affirmed 10 N. Y. 
 (6 Seld.) 260, 1851, for reasons given by 
 Oakley, C. J., in 2 Sandf. 460 ; Halstead v. 
 Mayor, etc. of New York, 3 Comst, (3 N. 
 Y.) 430; Memphis v. Brown, 20 Wall. 
 289, 1873; State v. New Orleans, 20 La. 
 An. 172; Bright v. Hewes, 19 La. An. 
 666; Parker v. Williamsburg, 13 How. 
 Pr. (N. Y.) 250 ; Clough o. Hart, supra, 
 and cases cited by Valentine, J. Proof of 
 employment, Butler v. Charlestown, 7 
 Gray (Mass.), 14 ; Memphis v. Brown, 20 
 Wall. 289, 321; Memphis v. Adams, 9 
 Heisk. (Tenn.) 518; s, c. 24 Am. Rep. 
 .3.31; Cass Co, v. Ross, 46 Ind, 404, 1874; 
 McCabe v. Fountain Co,, 46 Ind. 380. 
 
 3 Detroit w. Whittemore, 27 Mich. 281, 
 1873. Construction of power to employ 
 private counsel. lb. In employing coun- 
 sel the board of county commissioners 
 
474 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIV. 
 
 § 480.(400) Contracts for Local Improvements. — A municipal 
 corporation contracted with a paver to do certain work at a fixed 
 price, of which it was to pay one third, and the owners two 
 thirds. It was judicially determined that the proprietors were, 
 in law, liable to pay only one third ; and it was held, in an action 
 by the paver against the corporation, that it was a warrantor 
 for the remaining one third ; and it was held liable accordingly.^ 
 But where the charter or constituent act in reference to improv- 
 ing streets provides that the city shall be liable to the contractor 
 for so much only of the improvement as is occupied by streets 
 and alleys crossing the same, and that the owners of adjacent lots 
 shall be liable for the rest, the city is not liable for the deficiency 
 in case the adjacent property does not sell for enough to pay the 
 assessment, and though the owner be a non-resident.^ 
 
 acts as a corporation, and, like other 
 corporations, may, unless the statute 
 otherwise requires, employ agents and 
 attorneys without making such employ- 
 ment a matter of record, but this must be 
 done by the concurrent act of a majority 
 of the board at a legal session. Such 
 attorney may recover compensation for 
 his services. McCabe v. Board, etc. 
 Fountain Co., 46 Ind. 380, 1874. The 
 city council, under the laws of Iowa, 
 while acting as a board of equalization, is 
 discharging a corporate function and act- 
 ing as a representative of the city, and if 
 its action is appealed from, the city so- 
 licitor is justified in defending it in the 
 Appellate Court, for which service he is 
 entitled to reasonable compensation, even 
 though the service or the compensation 
 be not provided for by city ordinance. 
 Kinnie v. Waverly, 42 Iowa, 437, 1876. 
 Extra compensation. Ante, sec. 233. 
 
 ' Tounier v. Municipality, 5 La. An. 
 298. See also Cronan v. Same, lb. 637, 
 where, by the construction of the con- 
 tract, the city was held liable for the 
 whole expense, the proprietors having 
 refused to make payment. A contractor 
 failing, for want of -power in a city, to be 
 able to get his pay from special assess- 
 ments, the city was held liable to him, it 
 being regarded as guaranteeing that it 
 possessed the specific powers relied on by 
 the contractor for his compensation. 
 Maher v. Chicago, 38 111. 266, 1865. But 
 see Chicago c. People, 48 III. 416, where 
 
 the first case is explained and distin- 
 guished. See also Reilly v. Philadelphia, 
 60 Pa. St. 467; Sleeper i'. BuUen, 6 Kan. 
 300, 1870 ; Chicago v. People, 56 111. 327; 
 Lowdeii V. Cincinnati, 2 Disney (O.), 203. 
 Right of contractor to sue the corporation 
 where, in consequence of its neglect, it 
 would be nugatory to proceSd against the 
 owners of the property. See Michel v. 
 Police Jury, 9 La. An. 67 ; Newcomb ». 
 Same, 4 lb. 233 ; Michel v. Same, 3 lb. 
 123; Leavenworth v. Mills, 6 Kan. 288, 
 1870 ; distinguished, Casey v. Leaven- 
 worth, 17 Kan. 189. Compare Reock v. 
 Newark, 33 N. J. L. 129. Further, as 
 to local improvements, see ch. xix. ; post, 
 sec. 810 ; supra, sees. 459, 467. In Mem- 
 phis u. Brown, 20 Wall. 289, 1873, it was 
 held that under its charter the city had 
 full power to make paving contracts, and 
 to pay either in cash or in bonds, or both, 
 and to guarantee payment of the assess- 
 ment bills against abutters. Sexton v. 
 St. Joseph, 60 Mo. 153, 1875. 
 
 2 New Albany v. Sweeney (construing 
 General Towns and Cities Act), 13 Ind. 
 245, 1859 ; Lucas v. San Francisco, 7 
 Cal. 463 ; Lovell v. St. Paul, 10 Minn. 
 290. Contracts with municipal corpora- 
 tions are construed with reference to the 
 chartered or corporate powers of the city. 
 13 Ind. 245, supra. 
 
 If the municipal corporation agrees with 
 the contractor to collect the assessments 
 from the abutting owners, a failure to 
 do so will render it liable. Morgan v. 
 
§ 481.] 
 
 CONTRACTS. 
 
 475 
 
 § 481. (401) A city charter required the consent of a major- 
 ity of property-owners to make certain improvements, which, 
 when made, were chargeable upon the adjacent property. An 
 ordinance provided that contractors doing such work should look 
 to the adjacent property, and not to the city, for their pay. Un- 
 der these circumstances, the city entered into a contract with the 
 plaintiff to grade a certain street, the plaintiff agreeing that he 
 would receive his pay from the adjoining property. The plaintiff 
 performed the work, and, inasmuch as the adjacent owners had 
 never given their consent to the making of the improvement, he 
 sued the city on the contract, to recover for the work done ; and 
 it was held that the action could not be maintaiued.' 
 
 Dubuque, 28 Iowa, 575, 1870. See, how- 
 ever, Beard v. Brooklyn, 31 Barb. (N. Y.) 
 142 ; Sexton v. St. Joseph, 60 Mo. 153, 
 1873 ; Sexton v. Beach, 60 Mo. 488, 1872. 
 A creditor of a municipality is not obliged 
 to wait, before he sues, until the money 
 can be collected from the land-owners 
 benefited, and on whom the charter im- 
 poses the expense of the improvement 
 whence his claim accrued. Little v. Union 
 Township Committee, 40 N. J. L. 397. 
 
 1 Leavenworth v. Rankin, 2 Kan. 
 357, 1864; Swift v. Williamsburg, 24 
 Barb. (N. Y.) 427; Goodrich v. Detroit, 
 12 Mich. 279 ; Johnson v. Common Coun- 
 cil, 16 Ind. 227 ; New Albany w. Sweeney, 
 13Ind.245. 
 
 Where the contractor has agreed to look 
 for payment to the lot benefited, or to the 
 owner, he cannot hold the city, unless it 
 may be in cases where the whole proceed- 
 ing is void, or the city neglects its duty. 
 Kearney u. Covington, 1 Met. (Ky.) 
 839. The subject is very fully discussed 
 and the previous cases in the state com- 
 mented on in Craycraft v. Selvage, 10 
 Bush (Ky.), 696, 1874 ; Casey v. Leaven- 
 worth, 17 Kan. 189, 1876; Memphis 
 V. Brown (an important case), 20 Wall. 
 289, 1873 ; Smith v. Milwaukee, 18 Wis. 
 63, 1864; Finney v. Oshkosh, lb. 220; 
 Chicago V. People, 48 III. 416 ; Ruppert v. 
 Baltimore, 23 Md. 184; Louisville v. 
 Henderson, 5 Bush (Ky.)^ 515, 1869. 
 
 A city advertised for proposals to do 
 certain public work, and the plaintiff made 
 proposals, which were accepted, without 
 qualification, by an entry on city records ; 
 
 and it was decided that the statement in 
 the published notice, "the expense of 
 the work to be assesfied," etc., was part 
 of the contract, no other provision for 
 payment having been made, and that the 
 plaintiff could not maintain an action 
 against the city until after the assess- 
 ment and collection of liis compensation, 
 or until it or its officers failed to proceed 
 with reasonable diligence, after the ex- 
 pense of the work was ascertained, to 
 make and collect an assessment, and to 
 pay over money thus collected. Hunt v. 
 Utica, 18 N. Y. 442, 1858. 
 
 Extent of recover)! by contractor against 
 abutter where the work is done in a 
 manner inferior to that stipulated for in 
 the contract. Creamer v. Bates, 49 Mo. 
 523, 1872. 
 
 Further, as to the rights and remedies of 
 the contractor, of the property-owner, and 
 the liabilities of the municipal corpora- 
 tion. Memphis v. Brown, 20 Wall. 289, 
 1874; Smith v. Milwaukee, 18 Wis. 63; 
 Foote V. Same, 75. 270 ; Bond v. Newark, 
 19 N. J Eq. 376 : Fletcher v. Oshkosh, 18 
 Wis. 228, 232 ; Palmer v. Stump, 29 Ind. 
 329; McSpedon i'. New York, 7 Bosw. 
 (N. Y.) 601; Reilly o. Philadelphia, 60 
 Pa. St. 467 ; Whalen o. La Crosse, 16 
 Wis. 271 ; Flonrnoy v. Jeffersonville, 17 
 Ind. 169 ; Creighton v. Toledo, 18 Ohio 
 St. 447; Goodrich v. Detroit, 12 Mich. 
 279; Buffalo v. Halloway, 7 N. Y (3 
 Seld.) 493 ; Storrs v. Utica, 17 N. Y. 104; 
 Leavenworth v. Mills, 6 Kan. 288, 1870; 
 followed, Leavenworth «, Stille, 13 Kan. 
 539, 1874 and distinguished Casey v. 
 
476 
 
 MUNICIPAL COEPOEATIONS. 
 
 [oh; XIV. 
 
 § 482. (402) It has been asserted that where the expense of 
 making a local improvement is not to be raised by a general tax, 
 but solely upon the property benefited, that a failure of the cor- 
 poration, though it is only the agent of the owners to be assessed, 
 to discharge its duty, by making the necessary assessment, or its 
 unreasonable delay in collecting and paying over the money, 
 gives the contractor a light to recover his compensation in an 
 action against the corporation.^ The right to a general judgment 
 
 Leavenworth, 17 Kan. 189, 1876; Sleeper 
 V. BuUen, 6 Kan. 300; Lansing v. Van 
 Gorder, 24 Mich. 456, 1872 ; post, chapter 
 on Taxation and Local Improvements ; 
 supra, sec. 460; infra, sec. 810; Hen- 
 drick i;. West Springfield, 107 Mass. 641 ; 
 Mayer v. Mayor, etc. of New York, 63 
 N. Y. 455, 1875 ; Tone v. Mayor, etc. of 
 New York, 70 N. Y. 157, 1877. Assign- 
 ment of contract. McCubbin u. Atchison, 
 12 Kan. 166 ; McGlue v. Philadelphia, 10 
 Fhiia. (Pa.) 348 ; Ferkinson b. St. Louis, 
 4 Mo. App. 322. 
 
 An ordinance of the city of Louisville 
 ordained " that no contract should be 
 binding on the city until it is approved 
 by both boards of the general council, and 
 this shall be necessary to make a contract 
 complete and binding upon the city." A 
 contract was made for a certain street im- 
 provement, which was signed by the 
 mayor, but was never approved by both 
 boards, but by one of them only. If the 
 contract had been executed as required 
 by the ordinance the contractor would 
 have been entitled to recover against the 
 adjacent property-holders the agreed 
 price. It was conceded that he could not 
 recover against them because the contract 
 had not been thus executed. He there- 
 upon sought to make the city liable for 
 the work done, but the Court of Appeals, 
 distinguishing the case from Kearney v. 
 Covington, 1 Met. (Ky.) 845, held that no 
 contract binding on the city was ever 
 made and that he could not recover, there 
 having been no ratification of the con- 
 tract. Murphy v. Louisville, 9 Bush 
 (Ky.), 189, 1872. Quantum meruit will not 
 lie against a city for materials furnished 
 for a public work under a contract which 
 is void as not in conformity with statutes 
 requiring such contracts to be made in a 
 particular manner. Bigler «. New York, 
 
 5Abb.(N.Y.)N.Cas. 5L When city not 
 liable on contracts of police and school 
 boards, see Swift v. New York, 12 Hun 
 (N. Y.), 518 ; Utica v. Miller, 62 Ind. 230; 
 Jarvis u. Shelby, 62 Ind. 257; Crane v. 
 Urbana, 2 111. App. 559. 
 
 As to implied municipal liabiliti/, see the 
 recent important opinion of the United 
 States Supreme Court in City of Louis- 
 iana V. Wood, October Term, 1880. 
 
 1 Beard v. Brooklyn, 31 Barb. (N. Y.) 
 142, 1860. See Goodrich v. Detroit, 12 
 Mich. 279, 1864 ; Gumming v. Mayor, etc. 
 of Brooklyn, 11 Paige (N. Y.) Ch. 596, 
 1845; Baker v. Utica, 19 N. Y. (5 Smith) 
 326, 1859 ; Green v. Mayor, etc. of New 
 York, 6 Abb. Pr. (N. Y.) 503. See, gener- 
 ally, as to assessments for public works, 
 Doughty V. Hope, 3 Denio (N. Y.), 249; 
 Manice v. Mayor, 8 N. Y. 120; People v. 
 Mayor, etc. of New York, 5 Barb. (N. 
 Y.)43; 8 Barb. 95; 23 Barb. 390. Where 
 a city fails to levy a tax, or refuses to 
 issue tax warrants in payment of a con- 
 tract for grading and improving streets, 
 and otherwise neglects to provide means, 
 the city is liable, and the contractor 
 may, in an action, recover the amount 
 due. Atchison v. Byrnes, 22 Kan. 65. 
 Craycraft v. Selvage, 10 Bush (Ky.), 696, 
 1874. In principle sustaining the view 
 suggested in the text: Reock v. New- 
 ark, 33 N. J. L. 129; post, ch. xxiii., note. 
 And see opinion of Field, C. J., in Ar- 
 genti V. San Francisco, 16 Cal. 255, 
 282, 1860; post, ch. xx. on Mandamus. 
 Where the city council can only legis- 
 late in conjunction with the mayor as 
 part of the law-making power, if the 
 council order local improvements by a 
 resolution without the signature or con- 
 currence of the mayor, and the work is 
 done by a contractor under such au- 
 thority, he cannot recover of the abutter 
 
§ 483.] 
 
 CONTRACTS. 
 
 477 
 
 should, in our opinion, be limited, in any event, to cases where 
 the corporation can afterwards reimburse itself by an assessment. 
 For why should all be taxed for the failure of the council to do 
 its duty in a case where the contractor has a plain remedy, by 
 mandamus, to compel the council to make the necessary assess- 
 ment and proceed in the collection thereof with the requisite 
 diligence ? * 
 
 § 483. (403) Same. — Corporate Control by Stipulation. — An 
 agreement by a contractor to execute a public improvement, 
 under the general direction and supervision of a committee of a 
 city, makes such committee — acting reasonably and honestly, 
 not arbitrarily and capriciously — exclusively the judge, not only 
 as to materials and manner, but also as to the time of doing the 
 work.^ But where a written contract has been entered into 
 between a municipal corporation and a contractor, a general 
 provision of an ordinance that the work shall be done under the 
 directions of certain officers confers no authority upon them 
 essentially to change or modify the provisions of the contract.^ 
 
 (Sexton V. Beach, 50 Mo. 488, 1872), nor 
 from the city, it seems, where the ch.irter 
 declares that the city sliall in no manner 
 be liable for local improvements. Sex- 
 ton V. St. Joseph, 60 Mo. 153, 1875. 
 , 1 Chapman v. Lowell, 4 Cush. (Mass.) 
 378, 1849, relating to drains in the streets 
 of the city. Certain wells were, by eon- 
 tract, to be constructed under the super- 
 vision and to the satisfaction of a specific 
 city officer; they were so construcled and 
 approved, and it was held that the city 
 was concluded by the action of the offi- 
 cer. Omaha o. Hammond, 94 U. S. 98, 
 1876. As to power of chancery to cor- 
 rect mistake of the engineer or other 
 person whose decision both parties to the 
 contract have agreed to abide by. See 
 Kailroad Co. v. Veeder, 17 Ohio, 385. 
 Where there Is a condition precedent that 
 contractor shall have certificate of per- 
 formance by corporation. See Bowery 
 JJational Bank v. Mayor, etc. of New 
 York, 63 N. Y. 336, 1875; Cameron, in re, 
 50 N. Y. 602, 1872. Condition precedent 
 that payment was not to be made to 
 contractor until confirmation of the as- 
 sessment, and whose duty to have con- 
 firmation made construed. Tone v. Mayor, 
 
 etc. 70 N. Y. 157, 1877. The contract 
 between the conlractor and the city pro- 
 vided that the contractor should be 
 entitled to payment when the work was 
 accepted by the board of public works, 
 and it was held that the contractor, who 
 had, in fact, completed his work, might 
 recover of the abutter, although a ma- 
 jority of the board refused or neglected 
 to examine or accept the work. Neenan 
 V. Donoghue, 50 Mo. 493, 1872. It is 
 held that the acceptance by the city au- 
 thorities of work done under a contract 
 for a street improvement is oviiy prima 
 facie evidence that the work has been done 
 in substantial compliance with the terms 
 of the contract. Gulick v. Connely, 42 
 Ind. 1-34, 1873 ; but see Omaha v. Ilam- 
 mond, svpra. 
 
 2 Bonesteel v. Mayor, etc. of New 
 York, 22 N. Y. 162, 1860 ; Bond v. New- 
 ark, 4 C. E. Green (19 N. J. Eq.), 376; 
 compare Omaha v. Hammond, 94 U. S. 
 98, 1876. But the authority of the cor- 
 poration may be implied from its having 
 by its own act rendered extra materials 
 necessary to conform the work to the 
 conditions of the contract. Messenger 
 V. Buffalo, 21 N. Y. 196, 1860; see, also. 
 
478 MUNICIPAL CORPORATIONS. [CH. XIV. 
 
 If, in a contract for a public work, the corporation employer 
 reserves the right to make alterations in the form, dimensions, 
 or materials of the work, the contractor is bound by any such 
 alterations made in good faith ; but such a clause does not au- 
 thorize the employer to annul the agreement, or to stop the work 
 in an unfinished state. ^ 
 
 § 484. (404) Evidences of Indebtedness. — Negotiable Bonds. — 
 We have elsewhere discussed theo power of the legislature to 
 authorize the issue of municipal bonds in aid of railway and other 
 like enterprises,^ and have also considered the express and implied 
 power of municipal corporations to borrow money and issue 
 obligations therefor.* It appropriately belongs to this place, 
 however, to notice more at length the different kinds of corporate 
 evidences of debt, and the rights and remedies of the holders 
 thereof, and to this general subject will the remainder of the 
 present chapter be devoted. 
 
 § 485. Tioo Crreat Classes of Municipal Securities : 1. Ordinary 
 Warrants; 2. Negotiable Bonds. — Form, Execution, and Attributes 
 of each. — It is material to bear in mind the different hinds of 
 corporate evidences of debt. These are of two general classes. 
 First, there is the usual municipal or county warrant or order. 
 These are commonly drawn by one or more of the officers upon 
 the treasurer, directing him to pay to the person named, or bearer, 
 a given sum of money. The power to issue them, and the 
 mode in which it is to be exercised, are usually prescribed by 
 charter or statute. They are vouchers or " necessary instruments 
 for carrying on the machinery of municipal administration and 
 
 Stuart!). Cambridge, 125 Mass. 102. Effect build a road cannot proceed with his 
 
 of certificate of approval of a city officer contract after notice of an appeal, and 
 
 where, by the contract, the work is to be recover of a town tlierefor. This deci- 
 
 done to his approval. Bond r. Newark, sion is based upon a construction of the 
 
 4 C. E. Green (19 N. J. Eq.), 376. statute of that state by which the appeal 
 
 As to reserved riglit to discontinue work is intended to stay or suspend all pro- 
 
 and annul contract. Bietry a. New Or- ceeJings toward building the road, and 
 
 leans, 24 La. An. 21, 1872. the contractor was bound to take liis con- 
 
 1 Clark «. Mayor, etc. of New York, tract subject to the contingency of the 
 
 4 Comst. (N. Y.) 338, 1850. Remedy of appeal allowed by law. Taft ti. Pittsford, 
 
 contractor, and measure of damages in 28 Vt. (Wms.) 286, 1856. 
 such a case, considered. /6. It is held, ^ Ante, sec. \\^ et seq. 
 in Vermont, that a person who has con- ' Ante, see. 117 et seq. ; supra, see. 470, 
 
 tracted with the proper town oflScers to note. 
 
§ 486.] CONTRACTS. 479 ~ 
 
 for anticipating the collection of taxes," ^ out of which they must 
 be paid. The power to issue such warrants or orders may, where 
 not expressly conferred or denied, be implied as incidental to 
 carrying out the objects of a municipal or public corporation. 
 Second, there is the municipal bond, negotiable inform, payable at 
 a, future day, intended for sale in the market, issued under ex- 
 press authority of the legislature. 
 
 § 486. Municipal Bonds, notwithstanding they are under seal, 
 are clothed with all the attributes of negotiable or commercial 
 paper, pass by delivery or indorsement, and are not subject to 
 equities (where the power to issue them exists) in the hands 
 of holders for value, before due, without notice. Such bonds 
 usually have coupons attached, which partake of the nature 
 of the bond, are likewise negotiable, may be detached and held 
 separately from the bond, and the holder may sue thereon in his 
 own name, without producing or being interested in the bonds to 
 which they were originally attached. Such securities are made 
 to raise money by their sale, and this object would be defeated if 
 they were subject to equities (where the power to issue exists) 
 in the hands of bona fide holders.^ 
 
 1 Per Bradley, J., in The Mayor of 93 ; Barrett v. Schuyler County, 44 Mo. 
 Nashville v. Ray, 19 Wall. 468, 477, 197; DeVoss y. Richmond, 18 Gratt. 338; 
 1873. s. c. 7 Am. Law Reg. (N. S.) 589; State 
 
 2 Mercer County v. Hacket, 1 Wall. v. Madison, 7 Wis. 688 ; Clark v. Janes- 
 83, 1863 (denying Diamond v. Lawrence ville, 10 Wis. 136, 1859; Maddox v. Gra- 
 County, 37 Pa. St. 353) ; Meyer v. Musca- ham, 2 Met. (Ky.) 56, 1869. 
 
 tine, 1 Wall. 384 ; Gelpecke v. Dubuque, Coupons attached to such bonds are ne- 
 
 Ib. 175 ; Moran i>. Miami County, 2 Black, gotiaUe, and the holder may sue thereon in 
 
 733, 1862; Clapp v. Cedar County, 5 his own name without being interested 
 
 low^a, 15; Morris Canal Co. «. Fisher, 1 in or producing the bonds to wliich they 
 
 Stockt. Ch. (N. J.) 667, 1855 ; Craig v. were originally attached. Thompson v. 
 
 Vicksburg, 31 Miss. 216 ; Jackson v. Lee County, 3 Wall. 327, 1866 ; Murray 
 
 Railroad Co., 48 Me. 147 ; 8. c. 2 Am. v. Lardner, 2 Wall. 110, 1864 ; Knox 
 
 Law Keg. (N. S.) 585; 8. c. Ih. 748, and County v. Aspinwall, 21 How. 539, 1858 ; 
 
 note of Judge Redfield ; Chapin u. Rail- Johnson v. Stark County, 24 111. 75; City 
 
 road Co., 8 Gray (Mass.), 575; Lynde o. v. Lamson, 9 Wall. 478, 1869; Railroad 
 
 Winnebago County (Iowa court-house Co. u. Otoe County, 1 Dillon C. C. B. 
 
 bonds), 16 Wall. 6, 1872 ; Clark v. Janes- 338. An action on a coupon is not barred 
 
 ville, 10 Wis. 136 ; Gould v. Sterling, 23 in less time than the bond to which it was 
 
 N. y. 464 ; s. c. 1 Am. Law Reg. (N. S.) originally attached. City v. Lamson, 
 
 290 and note ; Clark v. Des Moines, 19 supra ; Lexington v. Butler, 14 Wall. 282, 
 
 Iowa, 199, 213, 1865, and cases cited ; 1871. Explained, Clark v. Iowa City, 
 
 White V. Railroad Co., 21 How. 675; 20 Wall. 583, 1874. How declared 071. 
 
 Bank v. Railroad Co., 3 Kern. (13 N. Y.) Ring ». County, 6 Iowa, 265; Railroad 
 
 599 ; B. c. 4 Duer, 480 ; Aurora 0. West, Co. v. Otoe County, supra ; Wiley v. 
 
 22Ind. 88; Commrs. v. Bright, 18 Ind. Board, etc, 11 Minn. 371. The better 
 
480 
 
 MUNICIPAL COEPOBATIONS. 
 
 [CH. Xlt. 
 
 § 487. (406) Ordinary Corporation Orders or Warrants. — But 
 ordinary city, county, and town orders or warrants are in some re- 
 spects different from bonds of the character just mentioned, and, 
 in the author's judgment, the better opinion, as well as decided 
 weight of authority, is that there is no implied power in the 
 oiEcers of a town, county, or city corporation to issue warrants 
 or orders which shall be free from equities in the hands of hold- 
 ers ; that the existence of such a power is not necessary as an 
 incident to those ordinarily granted or to carry out the purposes 
 of the corporation, and would be attended with abuse and fraught 
 with danger. Ordinary warrants or orders, negotiable in form, 
 may be made by the proper officers ; and in many of the states 
 such instruments may be transferred by delivery or indorsement, 
 and the holder sue thereon in his own name, yet they are not 
 commercial or negotiable paper in the hands of holders, so as to 
 exclude inquiry into the legality of their issue, or preclude 
 defences thereto.^ Ordinary warrants drawn by one officer on 
 
 practice, in the author's judgment, is to 
 set out in tlie declaration the bond to 
 which the coupon in suit was attached, 
 or its legal effect and recitals. Effect of 
 judgment for interest as an estoppel in a 
 subsequent suit for interest or principal. 
 Bank v. Navigation Company, 3 La. An. 
 294 ; Beloit v. Morgan, 7 Wall. 619. As 
 to interest, infra, sec. 506. 
 
 Municipal corporations may plead the 
 statute of limitations in actions against 
 them on their bonds payable at a fixed 
 time. De Cordova «. Galveston, 4 Texas, 
 470, 1749 ; see Underbill v. Trustees, 
 17 Cal. 172; Baker v. Johnson Co., 33 
 Iowa, 151 ; post, sec. 668, et seq. 
 
 The statute of limitalions commences to 
 run on coupons detached from the bonds 
 and negotiated separately, from the time 
 the coupons mature, and the operation of 
 the statute, in such a case, is not deferred 
 until the maturity of the bonds to which 
 the coupons belonged. This point has 
 been expressly adjudged by the Supreme 
 Court in Clark i;. Iowa City, 20 Wall. 
 58.3, 1874, and the prior decisions, which 
 had been supposed to hold otherwise, ex- 
 plained to mean only that when the bonds 
 were specialties, the coupons, though de. 
 tached, partook of the same nature, and 
 therefore the same statute of limitations 
 applied to both the coupons and the 
 
 bonds ; that is, if the bonds were special- 
 ties, so were the coupons, and the statute 
 of limitations as to sealed instruments, and 
 not the more restricted statute applicable 
 to simple contracts, applied. Kenosha v. 
 Lamson, 9 Wall. 477. Lexington v. Butler, 
 14 Wall. 282. The statute also begins to 
 run on coupons from the time tliey re- 
 spectively mature, although Ihey remain at- 
 tached to the bond which represents the prin- 
 cipal debt. Amy v. Dubuque, 98 U. S. 470. 
 1 Emery ». Mariaville, 06 Me. 315; 
 Shirk V. Pulaski Co., 4 Dillon, 209, 213, 
 1877, and cases cited ; Clark v. Des 
 Moines, 19 Iowa, 199, 211-214, 1865, and 
 cases cited ; Clark v. Polk County, lb. 
 248; Mathes o. Cameron, 68 Mo. 504, 
 1876 ; People v. County, 11 Cal. 170, 1858; 
 Sturtevant v. Liberty, 46 Me. 457 ; 
 Smith V. Chesliire, 13 Gray (Mass.), 318, 
 1859 ; Andover v. Grafton, 7 N. H. 208, 
 1834; compare, however. Bank v. Farm- 
 ington, 41 N. H. 32 ; Dalrymple u. Whitr 
 tingham, 26 Yt. 345; Inhabitants v. 
 Weir, 9 Ind. 224, 1857 ; School District 
 V. Thompson, 5 Minn. 280, 1861 ; s. p. 
 Goodnow V. Commissioners, 11 lb. 31, 
 1865; Hyde v. Franklin, 27 Vt. 185, 
 1855 ; approved, Taft v. Pittsford, 28 lb. 
 286 ; Halstead v. Mayor, 3 Comst. (3 N. Y.), 
 4-30 ; s. o. 5 Barb. 218 ; The Floyd Ac- 
 ceptances, 7 Wall. 666, and reasoning of 
 
§ 487.] 
 
 CONTRACTS. 
 
 481 
 
 another officer of the same corporation are not bills of exchange, 
 as such bills involve the idea of two parties ; but are orders by 
 the corporation on itself, — mere directions to the treasurer to 
 pay the amount to the bearer.^ 
 
 Mr. Justice Miller; People i/. Gray, 23 
 Cal. 125; 76. 447;' Hubbard v. Lyndon, 
 28 Wis. 674, 187 1 . Warranto, duly signed 
 and sealed, are prima facie valid, but 
 open to defences. Commissioners v. Kel- 
 ler, 6 Kan. 510 ; Commissioners v. Day, 
 19 Ind. 540, 1862 ; infra, sec. 602. 
 
 Transferee or holder maij sue in his own 
 name. Emery v. Mariaville, 56 Me. 
 315 ; Crawford County v. Wilson, 2 Eng. 
 (7 Ark.) 214; Clark v. Des Moines, 19 
 Iowa, 199; Campbell v. Polk County, 3 
 Iowa, 467 ; Clark w. Polk County, 19 Iowa, 
 248; Int. Bank u. Franklin Co. 65 Mo. 
 105, 1877. Otherwise in Massachusetts. 
 Smith V. Cheshire, 13 Gray (Mass.), 318, 
 treating a town order, payable to bearer, 
 as a mere cliose in action, wliiuh could 
 not be enforced in the name of an as- 
 signee. 8. p. O'Donnell «. City, 7 Phil. 
 (Pa.) 234. In many of the states, " the 
 real party in interest " may sue in his 
 own name. In Vermont, as to right of 
 holder of town and county orders to sue 
 in his own name, see Dalrymple v. Whit- 
 tingham, 26 Vt. 345; compare Taft o. 
 Pittsford, 28 Vt. 286, 289; Hyde v. 
 Franklin, 27 Vt. 185. Right of indorsee 
 to sue or enforce by mandamus in his own 
 name. Kelly o. Mayor, etc., 4 Hill 
 (N. Y.), 263; Clark v. School District, 
 3 Rh. Is. 199 ; Moss v. Oakley, 2 Hill 
 (N. Y.), 265 ; Commissioners v. Day, 19 
 Ind. 450 ; Dively v. Cedar Falls, 21 Iowa, 
 665 ; Justices v. Orr, 12 Ga. 137. Stat- 
 utory form of assignment must be ob- 
 served. Int. Bank v. Franklin Co., 65 
 Mo. 105, 1877 ; post, eh. xx. sec. 849. 
 
 1 Miller v. Thompson, 3 Man. & Gr. 
 576 ; Fairchild ». Railroad Co., 15 N. Y. 
 337; Bull v. Sims, 23 N. Y. 570, 672; 
 Clark 0. Polk County, 19 Iowa, 247; 
 Harvey v. W. P. S. Co., 1 Doug. (Mich.) 
 193 ; Dana v. San Francisco, 19 Cal. 486 ; 
 Justices o. Orr, 12 Ga. 137. Municipal 
 certificates of indebtedness are not " hills 
 of credit " within the meaning of the pro- 
 hibition (art. 1, sec. 10) of the Ifational 
 Constitution (Baltimore v. Board of Po- 
 lice, 15 Md. 376, 1859), and possess no 
 elements of commercial paper. Chandler 
 VOL. I. 31 
 
 V. Bay St. Louis, 57 Miss. 327. As a county 
 warrant is an instrument by which the 
 money, property, or rights of a county 
 may be affected, it is such an one as may 
 be forged. State v. Fenley, 18 Mo. 445, 
 1853. Requisites of indictment in such 
 a case. 76. Without the sanction of the 
 county board the clerk has no author- 
 ity to issue, or the treasurer to pay or 
 countersign, any warrant. People v. 
 Klopke, 92 III. 134. 
 
 Bonds issued by the city of Little 
 Rock oh bank-note paper, engraved with 
 vignettes, in the similitude of bank-bills, 
 intended to circulate as money, were held 
 to be illegal and void under the legisla- 
 tion of Arkansas, both by the State and 
 Federal courts. Lindsey v. Rottaken, 32 
 Ark. 619, 1878 ; Jones v. Little Rock, 25 
 Ark. 301, 1868 ; Merchants' Nat. Bank v. 
 Little Rock, 5 Dillon, 299, 1878 ; s. c. 98 
 U. S. 308. In the last-named case it was 
 decided that this illegal money having 
 been paid out by the city to bona fide 
 creditors for valid claims, and the city 
 having afterwards called it in, and by the 
 action of the municipal council acknowl- 
 edged an indebtedness for the amount to 
 the holders and promised to pay the same, 
 it was liable on such acknowledgment and 
 new promise. In Jones v. Little Rock, 
 supra, the court refused to interfere by 
 injunction at the instance of a tax-payer 
 to prevent that city from issuing paper of 
 this character. 
 
 Liability as respects scrip issued to cir- 
 culate as money. Thomas v. Richmond, 
 12 Wall. 349, 1870, and in which the city 
 was held not to be liable. See on this 
 subject, Alleghany City v. McClurkan, 
 14 Pa. St. 81, 1850 ; Jones v. Little Rock, 
 25 Ark. 301; Miller v. Lynchburg, 20 
 Gratt. (Va.) 330, 1871 ; Smith v. New 
 Orleans, 23 La. An. 5, 1871; Clark v. 
 Des Moines, 19 Iowa, 199, 1865; Dively 
 t). Cedar Falls, 21 Iowa, 565 ; s. c. 27 76. 
 227 ; Black v. Cohen, 52 Ga. 621, 1874 ; 
 Clieeney v. Brookfield, 60 Mo. 63, 1874 ; 
 Hackettstown ads. Swackhamer, 37 N. 
 J. L. 191,1874; Lucas b. Pitney, 8 Dutch. 
 (N. J.) 221. 
 
482 
 
 MUNICIPAL COEPOKATIONS. 
 
 fCH. XIV. 
 
 § 488. (407) Banking and trading corporations have implied or 
 incidental power to make negotiable paper ; ' and the same rule 
 has, in some cases, been applied to municipal corporations. The 
 ordinary warrants of such corporations, it is clear, do not cut off 
 equities, and it is doubtful whether they have an incidental 
 power to make paper which shall have this effect.^ The subject 
 has been discussed in a previous chapter.^ 
 
 1 McCuUough V. Moss, 5 Denio .(N- 
 Y.), 567 ; Straus ». Eagle Insurance Co., 
 6 Ohio St. 59 ; Mott v. Hicks, 1 Cow. (N. 
 Y.)513; Attorney-General v. Insurance 
 Co., 9 Paige (N. Y.), Ch. 470 ; 2 Kent Com. 
 299 ; 1 Parsons N. & B. 165 ; Clark v. Des 
 Moines, 19 Iowa, 212; ante, sees. 117, 
 118 ; Lucas v. Pitney, 3 Dutch. (N. J.) 
 221. 
 
 2 Kelly V. Mayor, etc., 4 Hill (N. Y.), 
 263 ; Clark i'. Des Moines, 19 Iowa, 199, 
 213; Came v. Brigham, 39 Me. 39; 
 Clarke V. School District, 3 Rh. Is. 199 ; 
 Goodnow ». Commrs., 11 Minn. 31 ; Lit- 
 tle Rock V. Nat. Bank, 98 U. S. 308, citing 
 anl approving text; ante, sees. 117-127. 
 In Ivdiana the common-law doctrine tliat 
 a corporation (iould not make a. promis- 
 sory note is exploded, and corporations 
 can now make contracts intra vires in writ- 
 ing not under seal. Municipal and quasi 
 corporations can make in a proper case a 
 promissory note (citing Ketchum v. Buf- 
 falo, 14 N. Y. 356 ; Railroad Co. «. Evans- 
 ville, 15 Ind. 395) ; a promissory note of 
 a school township in payment for build- 
 ing a school-house held valid. Slieffield 
 V. Township, etc., Andress, 56 Ind. 157, 
 1877. An action cannot be maintained 
 against a city on a demand payable out of 
 a fund oreF which its charter gives a board 
 of education control to the exclusion of 
 the municipal officers. Crane v. TJrbana, 
 2 111. App. 559. That municipal corpora- 
 tions have no authority to make and place 
 in market commercial paper without ex- 
 press power. See Hewitt v. School Dist., 
 94 111. 528; Supervisors v. Farwell, 25 
 111. 181 ; Clark v. Hancock Co., 27 III. 
 305; Marshall Co. v. Cook, 38 111. 44; 
 Wiley V. Silliman, 62 111. 170; Harding v. 
 Railroad Co., 65 111. 90 ; McWhorter v. 
 People, 65 111. 290; Big Grove v. Wells, 
 65 111. 263 ; ante, sec. 117. 
 
 ' The author's views are expressed 
 and the cases on the subject are referred 
 
 to, arite, see. 117 el seg., and approved in 
 Barsons V. Monmouth, 70 Me. 262, 1879. 
 
 Stattitory power " to issue county orders " 
 gives no authority to issue negotiable 
 bonds payable at a future day, with in- 
 terest coupons attached. The difference 
 is substantial. Goodnow v. Commrs., 11 
 Minn. 31, 1865 ; County Commrs. v. Car- 
 ter, 2 Kan. 115, 1860 ; Hull r.. County, 12 
 Iowa, 142. Statutory form of county 
 warrants held to be directory, and a mere 
 departure from this form is no defence to 
 an action on the warrant. Young v. 
 Camden County, 19 Mo. 309, 1854. A 
 contract made by a county with another 
 party, in which tlie county agrees to pay 
 for services rendered in county warrants, 
 is in effect a contract payable in money, 
 and is not void. Babcock u. Goodrich, 
 47 Cal. 488, 1874. 
 
 Authority to a city to subscribe for 
 stock, to be paid for by "certificates of 
 loan," authorizes it to issue negotiable 
 bonds with coupons attached, such " cer- 
 tificates of loan" and "bonds" being 
 considered identical. Amey v. Alleghany 
 City, 24 How. (U. S.) 364, 1860; see 
 Commonwealth v. Pittsburgh (power " to 
 borrow money "), 34 Pa. St 496, 511 ; 
 Same v. Same, 41 Pa. St. 278. Power by 
 public corporations to issue negotiable 
 bonds may be inferred from the power to 
 subscribe for stock, and to make payment 
 for it in bonds. Curtis «. Butler County, 
 24 How. (U. S.) 435 ; Bushnell i'. Beloit, 
 10 Wis. 195. Express legislative au- 
 thority to a city to subscribe for stock in 
 a railroad " as fully as any individual," 
 authorizes the issue, by the city, of nego- 
 tiable bonds in payment therefor. Sey- 
 bert C7. Pittsburgh, 1 Wall. (U. S.) 272, 
 1863 ; approving. Commonwealth v. Same, 
 41 Pa. St. 278; Rogers v. Burlington 
 (power to "borrow money for any public 
 purpose"), 8 Wall. 654,1865; Meyer k. 
 Muscatine, 1 Wall. 385 ; Mitchell v. Bur- 
 
§ 500.] 
 
 CONTRACTS. 
 
 483 
 
 § 489-499. (408) Liahility of Indorser of Warrants. — Warrants 
 or orders of a municipal corporation for the unconditional payment 
 of money to a person named, or order, or bearer, have the char- 
 acter of negotiable paper, so far, at least, as to render parties 
 indorsing them liable as indorsers.^ 
 
 § 500. (409) Payment and Cancellation of Warrants. — Pay- 
 ment by the treasurer or proper officer of a municipal corpora- 
 
 lington, 4 Wall. 270. By resolution, the 
 council authorized the mayor to borrow 
 money of a bank, and execute the note of 
 the corporation therefor, instead of which 
 he executed the bond of the corporation 
 under the seal of the corporation. In an 
 action on this bond by the payee, it was 
 held that the corporation could plead non 
 est factum, since the act of the mayor in 
 executing a writing obligatory instead of 
 a note did not bind the corporation. Lit- 
 tle Rock V. State Bank, 3 Eng. (8 Ark.) 
 227; see Damon v. Granby, 2 Pick. (Mass.) 
 345; Randall v. Van Vechten, 19 Johns. 
 (N. Y.) 60; Bank v. Paterson, 7 Cranch, 
 299; Head v. Insurance Co., 2 lb. 127. 
 Where towns were required " to pur- 
 cliase " liquors, and the selectmen were 
 indictable if they failed to make provision 
 for executing the law, it was held that a 
 town might give a negotiable note for 
 liquors actually purchased, and that the 
 town could not defend against it in the 
 hands of a bona fide holder, on the ground 
 that the liquors were sold in violation of 
 the law of the state. Bank v. Farming- 
 ton, 41 N.- H. 32, 1860. What an indorsee 
 is bound to inquire about, stated. lb. 42. 
 The general doctrines of the text in sec- 
 tions 485-488 are coincident with the 
 views of the United States Supreme 
 Court in the recent case of the Police 
 ,Tury V. Britton, 15 Wall. 686, 1872, where 
 it was held that county officers in Louis- 
 iana, with the usual powers of such offi- 
 cers, have no implied authority to issue nego- 
 tiable paper (bonds with coupons), payable 
 in the future, to raise money or to fund 
 an existing debt,which will cut off equities 
 in the hands of Ixma fide holders. Such a 
 power is not necessarily incident to the 
 power to make specified expenditures or 
 improvements, though it may be implied 
 from certain express powers, as, for exam- 
 ple, the power to borrow money. After 
 stating other instances in which the power 
 
 has been implied, Mr. Justice Bradley ob- 
 serves : " But in our judgment these 
 implications should not be encouraged or 
 extended beyond the fair inferences to be 
 gathered from the circumstances of each 
 case. It would be an anomaly, justly to 
 be deprecated, for all our limited territo- 
 rial boards, charged with certain objects 
 of necessary local administration, to be- 
 come fountains of commercial issues, 
 capable of floating about in the financial 
 whirlpools of our large cities." 15 Wall. 
 572. But see on this point of the inci- 
 dental power of municipal corporations 
 to borrow money, and to issue commercial 
 paper, the later case of Mayor of Nash- 
 ville V. Ray, 19 Wall. 468, 1873 ; ante, sec. 
 117 et seq., and notes; Sterling v. West 
 Feliciana, 26 La. An. 59, 1874. 
 
 1 Bull V. Sims, 23 N. Y. 570, 1861. In 
 this case the action was by an indorsee 
 against the defendant as indorser of the 
 following instrument : — 
 
 " Milwaukee, Aug. 1, 1859. 
 
 " The treasurer will, on or before the 
 Ist day of February next, pay to the 
 order of E. Sims, fifty dollars, out of any 
 funds belonging to the city not before specially 
 appropriated, the same having been this 
 day allowed for dredging, and chargeable 
 to the general city fund. 
 
 " H. L. Pace, Mayor. 
 "R.R. Lynch, Clerk." 
 
 It was held that the defendant in- 
 curred the responsibility of an indorser of 
 negotiable paper, and that the plaintiff 
 was not bound to show the existence of 
 sufficient funds in the city treasury to 
 pay the warrants, and not specially ap- 
 propriated at the time of its maturity. 
 Campbell v. Polk County, 3 Iowa, 467 ; 
 Hodges V. Shuler, 22 N. Y. 114 ; Fairchild 
 V. Ogdensburgh, etc. Railroad Co., 15 N. 
 Y. 337. Compare as to liability of in- 
 dorser, Keller v. Hicks, 22 Cal. 457. 
 
484 
 
 MUNICIPAL C0EP0RATI0N3. 
 
 [CH. xnr. 
 
 tion of its orders or warrants ipso facto extinguishes them. If 
 lent, reissued, or put into circulation again by the officer, after 
 he had once obtained credit therefor, they are not valid securities, 
 not even, it seems, in the hands of an innocent holder.^ 
 
 § 501. (410) Rights and Remedies of Holder of Warrants. — 
 A creditor of a town is not bound to receive an order on the 
 treasurer, but may sue upon his original cause of action.^ But if 
 he does receive it he is charged wijji the duty of presenting it to 
 the treasurer, upon whom it is drawn, or of alleging facts which 
 excuse presentment, before he can maintain an action upon it. 
 As such an order is, in effect, an order by the debtor on himself, 
 if presented and payment be refused, the town is liable instantly, 
 and without notice of non-payment.^ 
 
 § 502. (411) Presumption of Liahility. — County and city 
 orders signed by the proper officers are prima fade binding and 
 
 1 Canal Bank v. Supervisors, 5 Denio 
 (N. Y.), 517, 1848. In this case it was 
 held that where, vrithout any fraudulent 
 intent, the holder of valid county orders 
 exchanged them with the treasurer for 
 others which were in fact paid, but which 
 had never been allowed him in his ac- 
 counts, the debt represented by the valid 
 orders was not extinguished, and was a 
 sufficient consideration to support a set- 
 tlement with the county allowing it. As 
 to illegal orders in hands of bona fide 
 holder. Halstead v. The Mayor, etc. of 
 New York, 3 Comst. (N. Y.) 430, affirm- 
 ing 8. c. 5 Barb. 218 ; Mayor of Nash- 
 ville V. Ray (important case), 19 Wall. 
 468, 1873. A municipal corporation is 
 not liable for the increased face value of 
 warrants which the clerk has fraudulently 
 raised after issuance. Chandler v. Bay 
 St. Louis, 57 Miss. 827. Payment to 
 bearer in good taith exonerates the cor- 
 poration. Sweet V. Carver Co., 16 Minn. 
 106, 1871. 
 
 ^ Benson v. Carmel, 8 Greenl. (8 Me.) 
 112; Willey v. Greenfield, 30 Me. 452; 
 1849. No misapplication of a special 
 fund by the officers of a municipal cor- 
 poration can defeat the rights of creditors 
 entitled to be paid therefrom. State v. 
 Pilsbury, 30 La. An. 705. 
 
 ° Varner v. Nobleborough, 2 Greenl 
 
 (2 Me.) 121, where Mdlen, C. J., says : 
 " No sound reason can be given why a 
 town should be subjected to the perplex- 
 ity of costs of an action before the payee 
 of an order will do his duty and request 
 the payment. . . . There is an implied 
 engagement to conform to established 
 usage, and present the order for pay- 
 ment." Benson v. Carmel, supra ; Pease 
 V. Cornish, 19 Me. (1 Appl.) 191, 1841. 
 An action cannot be maintained on war- 
 rants drawn on a municipal treasurer, 
 without allegation and proof of their pre- 
 sentation to him, or of facts which will 
 excuse the presentation. Central v. Wil- 
 coxen, 3 Col. 566 ; East Union v. Ryan, 
 86 Pa. St. 459. As to mode of present- 
 ment. Steel V. Davis County, 2 G. Greene 
 (Iowa), 469; Campbell v. Polk County, 
 3 Iowa, 467. Where the payee has ac- 
 cepted county orders for a debt against 
 the county, and has parted with such 
 orders, he cannot sue the county for the 
 original debt. Crawford County v. Wil- 
 son, 2 Eng. (7 Ark.) 214, 1846. See 
 Allison V. Juniata County, 50 Pa. St. 351. 
 An unpaid and dishonored warrant on 
 the corporation treasurer is not, prima 
 fade at least, an extinguishment or nova- 
 tion of the original debt. Goldschmidt ». 
 New Orleans, 5 La. An. 436; Short v. 
 New Orleans, 4 lb. 281. 
 
§ 503.] CONTKACTS. 485 
 
 legal. These officers will be presumed to have done their duty. 
 Such orders make a prima facie cause of action. Impeachment 
 must come from the defendant.^ 
 
 § 503. Such warrants or orders drawn for ordinary municipal 
 expenses are not intended to have the qualities of negotiable 
 paper, but are instruments authorized for convenient use in con- 
 ducting the current and ordinary business of the corporation and 
 as a means of anticipating its ordinary revenue. It would over- 
 whelm municipalities with ruin to hold that such warrants or 
 orders had the qualities of negotiable paper, especially that qual- 
 ity which protects an innocent holder for value from defences of 
 which he has no notice, actual or constructive. All holders of 
 such warrants or orders, even when payable to order or bearer, 
 stand in the shoes of the payee, and the rights and remedies are 
 essentially different from those of the holders of authorized nego- 
 tiable municipal bonds. Such is the sound doctrine and such 
 the authorities almost without exception.^ 
 
 Without express authority from the legislature a municipality 
 cannot discount its warrants to its creditors so as to make them 
 equivalent to cash, or issue warrants for more than the sum act- 
 ually due the claimant; and as to the excess they are void, and 
 the holder will be treated only as the equitable assignee of the 
 valid legal claim of the payee.* 
 
 1 Commrs. v. Day, 19 Ind. 450, 1862; 312; Hague v. Philadelphia, 48 Pa. 528. 
 
 9 lb. 359 ; Commrs. v. Keller, 6 Kan. 510, A law creating the liability of a county is 
 
 1870; Clark v. Des Moines, 19 Iowa, 211, a condition precedent to the exaction of 
 
 1865; Cheeney ». Brookfield, 60 Mo. 53, payment from the county. Hesso. Pegg, 
 
 1875. Such debts "do not stand on the 7 Nev. 23, 1871. 
 
 footing of those contracted under a special " Supervisors v. United States (nature 
 
 conditional grant of power." 19 Ind. 450; of warrants and remedy), 18 Wall. 71; 
 
 People V. Mead, 24 N. Y. 114; ante, ch. Shirk v. Pulaski County, 4 Dillon, 209, 
 
 ix. sec. 213; supra, sec. 487. County 213, 1877, and cases cited; Clark w. Des 
 
 warrants are valid instruments only when Moines, 19 Iowa, 199 ; Mayor of Nash- 
 
 the board of supervisors had legal au- ville v. Ray, 19 Wall. 468 ; United States 
 
 thority to issue them, or contract the v. Miller County, 4 Dillon, 233, 1878. 
 obligation on which they were founded, 8 Shirk v. Pulaski County, 4 Dillon, 
 
 and are not binding when issued in viola- 209, 1877; Goyne ». Ashley County, 31 
 
 tion of law or in fulfilment of a contract Ark. 552. 1876; Bauer u. Franklin County, 
 
 that the board was prohibited from 51 Mo. 205, 1873. " The flagrant abuses," 
 
 making. lb. ; Sault Ste. Marie v. Van which, as Wagner, J., says, in the case 
 
 Dusan, 40 Mich. 429; Jefferson County lastcited, would follow any other doctrine, 
 
 V. Arrighi, 54 Miss. 668 ; Nash v. St. are well exemplified in Shirk v. Pulaski 
 
 Paul, 11 Minn. 174 ; People v. Flagg, 17 County. Foster v. Coleman, 10 Cal. 278; 
 
 N. Y. 589; Brady v. New York, 20 N. Y. Clark v. Des Moines, 19 Iowa, 199. 
 
486 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIV. 
 
 § 504. (412) Defences. — A municipal corporation is not estopped, 
 after a warrant upon its treasury has been issued, to set up the 
 defence of ultra vires, or fraud, or want or failure of consideration?^ 
 And it may maintain a Mil in equity to cancel warrants illegally 
 issued.^ Tax-payers may enjoin the issue of illegal warrants or 
 scrip.^ 
 
 § 505. (413) Payable ovi of a Particular Fund. — If by law a 
 particular claim is to be paid out of a special fund, a warrant or 
 order issued therefor should be made payable out of such fund ; 
 if made payable from the treasury generally by the officers issu- 
 ing it, the corporation is not bound by their act.* An order or 
 warrant, concluding with the words " and charge the same to the 
 
 1 Thomas v. Bichmond (scrip to cir- 
 culate as money), 12 Wall. 349, 1870; 
 Webster County v. Taylor, 19 Iowa, 117, 
 1865; Clark v. Des Moines, lb. 199; 
 Clark V. Polk County, lb. 248; Hodges v. 
 Buffalo, 2 Denio (N. Y.), 110; Halstead 
 V. Mayor, etc., 3 N. T. 430; Brown v. 
 Utica, 2 Barb. (N. Y.) 104; Anthony ». 
 Inhabitants, etc., 1 Met. (Mass.) 286. The 
 allowance of a claim by a county board 
 is not final and conclusive. Such allow- 
 ance is prima facie evidence of the 
 correctness of the claim, "but," says 
 Kingman, C. J., "the settlement of an 
 account by the county board is not more 
 sacred than a settlement made by in- 
 dividuals." The court therefore held, 
 and properly so, that the allowance of a 
 claim by the county was not an adjudica- 
 tion in the sense that it would conclude 
 the county as to the amount allowed 
 when sued upon the warrant drawn in 
 pursuance of such allowance. Commrs. 
 a. Keller, 6 Kan. 510, 1870; Mayor v. 
 Kay, 19 Wall. 468, 1873; Shirk v. Pu- 
 laski County, 4 Dillon, 209, 1877 ; Chee- 
 ney e. Brookfield, 60 Mo. 53, 1875 ; post, 
 ch. xxiii. Warrants may, it seems, be 
 usurious. Clark u. Des Moines, supra; 
 post, sec. 506, note. 
 
 2 Pulaski County v. Lincoln, 4 Eng. 
 (9 Ark.) 320, 1849; Webster County o. 
 Taylor, 19 Iowa, 117, 1865 ; Trustees v. 
 Cherry, 8 Ohio St. 564, 1858; Glaston- 
 bury V. McDonald, 44 Vt. 450, 1872. In 
 Mississippi a board known as the board 
 of police are authorized by law to audit 
 
 and allow, upon due proof, all claims 
 against the county, and counties in that 
 state cannot be sued directly. The action 
 of the board in allowing claims for mat- 
 ters of county charge, and in ordering 
 warrants to issue therefor, is final and 
 conclusive on the county, in the absence 
 of fraud, until it is reversed or vacated. 
 Carroll v. Board, etc. 28 Miss. (6 Cusb.) 
 38, 1854. But the weight of authority is 
 otherwise. Shirk v. Pulaski County, 4 
 Dillon, 209, 1877. Issuing new orders for 
 old. Effect of, see Clark v. Des Moines, 
 19 Iowa, 199 ; Canal Bank v. Supervisors, 
 5 Denio (N. Y.), 517; Lake v. Trustees, 
 4 lb. 620; Shirk v. Pulaski County, 4 Dil- 
 lon, 209, 1877. On warrants or orders 
 the statute of limitations does not begin to 
 run until payment is denied. Justices ». 
 Orr, 12 Ga. 1-37, 1852. See Carroll ». 
 Board, etc., 28 Miss. 38; De Cordova 
 V. Galveston (bonds), 4 Tex. 470 ; City v. 
 Lamson (coupons), 9 Wall. 478; supra, 
 sec. 487, note; Baker v. Johnson County, 
 33 Iowa, 151. In Nebraska, county war- 
 rants are not within the limitation stat- 
 utes. Brewer v. Otoe County, 1 Neb. 
 373. 
 
 ' Colbum o. Chattanooga, Tenn. ; s. c. 
 17 Am. Law Reg. N. S. 191 ; post, sees. 
 914, 921, 923. 
 
 * County Commissioners ». Cox, 6 Ind. 
 403, 1855 ; Campbell v. Polk County, 49 
 Mo. 214, 1872; Boro v. Phillips County, 
 4 Dillon, 216, 228, 1877, citang text, post, 
 ch. XX. 
 
§ 506.] 
 
 CONTRACTS. 
 
 487 
 
 account of Union Avenue," is payable out of the particular fund 
 indicated, and is not a claim against the corporation.^ But the 
 distinction must be observed between orders payable out of a 
 particular fund, and those which evidence a general corporate 
 liability, but are directed to be charged to a particular account.^ 
 
 § 506, (414) Interest on Corporate Indebtedness. — The rule in 
 respect to interest on debts against municipal corporations does 
 not ordinarily differ from that which applies to individuals.' 
 Under the Missouri statute, providing generally that creditors 
 shall be allowed interest at the rate of six per cent per annum, 
 etc., it is held that county warrants draw interest after present- 
 ment to the treasury and refusal of payment by the treasurer, 
 the court regarding the general statute as to interest broad enough 
 to embrace all debtors, counties as well as individuals.* But in 
 
 1 Lakeii. Trustees, etc., 4 Denio(N. Y.) 
 520, 1847, remedy of holder discussed ; 
 distinguished from Kelly v. Mayor, etc. of 
 Brooklyn, 4 Hill ( N. Y. ) , 263 ; and see Mc- 
 CuUough V. Mayor, etc., 23 Wend. (N. Y.) 
 458; Cuyler v. Rochester, 12 Wend. 
 (N. Y.) 165; Argenti v. San Francisco, 
 16 Cal. 255, and note remarks of Field, 
 C. J. ; Martin v. San Francisco, lb. 285 ; 
 Klngsberry v. Pettis Co., 48 Mo. 207, 1871. 
 An instrument in this form : — 
 
 " December 31, 1836. 
 
 " City of Brooklyn, ss. To the City 
 Treasurer. Pay A. L. or order |1500 
 for award No. 7, and charge to Bedford 
 road assessment, etc. 
 
 " J. T., Mai/ar. 
 "A. G. S., Clerk." 
 Held, 1st. Negotiable, and not payable 
 out of any special fund. 2d. Corporation 
 was not discharged by failure to present 
 and give notice, no damage or injury 
 being sustained in consequence of the 
 omission. Kelly v. Mayor, etc., 4 Hill 
 (N. Y.), 263, 1843; Steel t>. Davis County, 
 2 G. Greene (Iowa), 469; Campbell v. 
 Polk County, 3 Iowa, 467. 
 
 2 Clark V. Des Moines, 19 Iowa, 
 199, 222 ; Edwards on Bills, 148 ; Pease 
 V. Cornish, 19 Me. 191; Campbell v. 
 Polk County, 8 Iowa, 467 ; Commission- 
 ers V. Mason, 9 Ind. 97; Bayergue v. 
 San Francisco, 1 McAll. C. C. R. 175 ; 
 Bull V. Sims, 23 N. Y. 570 ; Montague v. 
 Horan, 12 Wis. 599. In an action on a 
 
 county order payable out of the three 
 per cent fund, " as fast as the same shall 
 accrue to the county," it must be allied 
 that the county has received money from 
 the specific fund named applicable to 
 the order in suit, or that the order was 
 fraudulently drawn upon a fund in which 
 the county had no assets. Commission- 
 ers V. Mason, 9 Ind. 97, 1857. See chap- 
 ter on Mandamus, post. 
 
 » Langdon v. Castleton, 30 Vt. 285 
 (action on book account). 
 
 ♦ Robbins v. County Court, 8 Mo. 57, 
 1831 ; State v. Trustees, 61 Mo. 155, 
 1875. In Iowa, coupons on county and 
 city bonds are held to draw interest. 
 Rogers v. Lee County, 1 Dillon C. C. B. 
 529. See Railroad Company v. Evans- 
 ville, 15 Ind. 395 ; HoUingsworth v. De- 
 troit, 3 McLean, 472 ; Pruyn v Milwaukee, 
 
 18 Wis. 367. If under authority to issue 
 bonds with eight per cent interest, bonds 
 be issued drawing twelve per cent, they 
 are valid and bear interest at the statu- 
 tory rate. Quincy v. Warfield, 25 111. 
 317. Usury. Whether usury can be 
 predicated of a sale or issue by a cor- 
 poration of its securities. So held, Dan- 
 ville V. Sutherlin, 20 Gratt. (Va.) 555, 
 1871; Lynchburg v. Norvell, 20 Gratt. 
 (Va.) 601, 1871; Clark v. Des Moines, 
 
 19 Iowa, 199. May be made payable out 
 of the state. Meyer v. Muscatine, 1 Wall. 
 884; Maddox v. Graham, 2 Met. (Ky.) 
 
488 MnNICIPAL COEPOEATIONS. [CH. XIV. 
 
 minois it is held that the debts of municipal corporations are 
 payable at the treasury of the body; that interest on coupons — 
 that is, interest on interest — cannot be recovered, unless there 
 be a special agreement to that effect, since such corporations are 
 not named in the act regulating interest. The court remarks : 
 " Whatever power these corporations may possess to contract for 
 the payment of interest, in the absence of any express legislation 
 on the subject, we are of opinion that their indebtedness, in the 
 absence of such agreement, does n^t bear interest.^ If such in- 
 struments (coupons) could in any event draw interest without 
 an express agreement, it could only be after a proper demand of 
 payment. Until a demand is made, such a body is not in default. 
 They are not like individuals, bound to seek their creditors to 
 make payments of their indebtedness." ^ 
 
 § 507. As to the implied power to borrow money and issue commer- 
 eial or negotiable paper. — Much conflict of opinion has existed in 
 the American courts touching the implied power of public and 
 municipal corporation to issue commercial or negotiable instruments, 
 that is, instruments free from equities in the hands of innocent 
 holders for value. In respect of public or quasi corporations, 
 such as counties, etc., as distinguished from municipal corpora- 
 
 1 South Park Commissioners v. Dun- A city issued warrants or orders on 
 
 levy, 91 111. 49 ; Pekin v. Reynolds, 31 its treasurer, payable when funds had 
 
 111. 529 ; People v. Salomon, 61 111. 52 ; been collected therefor from certain tax 
 
 Chicago V. People, 56 111. 327, 1870; sales, with interest. The funds being 
 
 Chicago V. Allcock, 86 111. 384 ; Cook v. collected, the common council ordered 
 
 South Park Commissioners, 61 111. 115. the treasurer to notify holders of war- 
 
 ' Pekin v. Reynolds, 31 111. 529, 1863 ; rants, by publication in the official paper, 
 8. p. Chicago V. People, 56 111. 327 to present the same for payment, and 
 1870 ; People v. Tazewell County, 22 III. that interest would cease after a certain 
 147 ; Johnson v. Stark County, 24 111. 75. day. It did not appear that plaintiff 
 But if made payable at a place other knew of such publication, though duly 
 than the treasury, the bonds are not void, made. Hdd, that the city was liable for 
 but only this prorision in them. Sher- interest on the warrants held by plain- 
 lock V. Winnetka, 68 111. 530, 1873. In tifE to the time of their presentation. 
 Madison County o. Bartlett; 1 Seam. Read v. Buffalo, 74 N. Y. 436. Nor can 
 (2 111.) 67, it was held' that counties were it set up in bar of an action to recover a 
 not liable to pay interest on their orders debt due from it, that it was once willing 
 or warrants, not being named in the stat- and offered to pay it ; nor can it stop in- 
 ute regulating interest, and the common- terest upon its obligations by publishing 
 law not allowing it to be recovered. So a notice in a newspaper that it will cease 
 in Pennsylvania. Allison v. County, 50 after a certain date when the warrants 
 Fa. St. 351. In that state a county is not bear interest. lb. ; see, also, Hummel v. 
 suable on its warrants, but suit must be. Brown, 24 Pa. St. 311. 
 on original claim. 76. ; post, ch. xx. 
 
§ 507.] CONTKACTS. 489 
 
 tions proper, the general current of authority is against the propo- 
 sition that, as ordinarily organized, they possess any such implied 
 power. And the power is not incident to the authority to make 
 specified expenditures or improvements, but it may be implied, 
 where there is nothing to rebut it, from other powers, such as the 
 express power to borrow money.^ 
 
 But in view of the more complex and diversified powers usually 
 conferred upon chartered or municipal corporations proper, there 
 has been a stronger tendency on the part of the courts to 
 hold that such corporations, as usually existing in this country, 
 have an incidental or implied power to issue commercial securi- 
 ties. The line of argument is substantially this: Trading and 
 commercial corporations have this power as an incidental means 
 of effecting their objects , why not municipal corporations as 
 well? Municipal corporations are clothed with large powers, 
 which necessarily oblige them to use credit or to create debts : 
 therefore, if they may create debts, they may borrow the money 
 to pay them ; and if they may borrow money, they have the inci- 
 dental power to do like other borrowers, namely, give a negotiable 
 bill, note, or bond therefor. The whole argument, in our judg- 
 ment, is unsound. It is true that in this country private busi- 
 ness corporations are usually considered to have the incidental 
 power to borrow money or give negotiable paper as an evidence 
 ofr their indebtedness, but in England it is held that express 
 power is necessary to enable even railway corporations to draw, 
 indorse, or accept bills of exchange.^ But admit that the Ameri- 
 can doctrine is otherwise ^ and that it is rightly so, still there is 
 no resemblance between private and public or municipal corpora- 
 tions in this regard. The latter are simply agencies of govern- 
 ment. They are not organized for trading, commercial, or business 
 purposes. They have, in general, but one mode of meeting their 
 liabilities, and that is by taxation, and it is upon this resource 
 
 1 Police Jury v. Britton, 15 Wall. 566, ^ See obseryations of Bi/les, J., in Bate- 
 
 1872. The ordinary powers possessed by man v Mid- Wales Railway Co., Law Rep. 
 
 counties, as agencies of the state in the 1 C. F. 510, 1866. 
 
 administration of public affairs, do not ' Stratton u. Allen, 16 N. J. Eq. 229 ; 
 
 give the incidental power to issue nego- McCuIlough v. Moss, 5 Denio (N. Y.), 
 
 tiable bonds and coupons. See Lynde v. 567 ; Straus v. Eagle Ins. Co., 5 Ohio St. 
 
 County, 16 Wall. 6. 59 ; 2 Kent's Com. 229 ; 1 Parsons' Notes 
 
 Distinction between public and munici- and Bills, 165. 
 pal corporations, in the sense referred to 
 in the text, see ante, sees. 22, 54, 58, 66. 
 
490 MUNICIPAL COEPOKATIONS. [CH. XIV. 
 
 that creditors must be taken to rely. For hundreds of years in 
 England, such corporations have existed, without it ever being 
 contended that they could, without express authority, issue com- 
 mercial paper. Private corporations are much more vigUant and 
 watchful of their interests than it is possible for public or muni- 
 cipal corporations to be. The frauds which unscrupulous officers 
 will be enabled successfully to practise, if an implied and uu' 
 guarded power to issue negotiable securities is recognized, and 
 which the corporation or the citizen^yrill be helpless to prevent, 
 is a strong argument against the judicial establishment of any 
 such power. And the argument is unanswerable, when it is re- 
 membered that in ascertaining the extent of corporate powers 
 there is no rule of safety, but the rule of strict construction, and 
 that such an implied power is not necessary, however convenient 
 it may be at times, to enable the corporation to exercise its ordi- 
 nary and usual express powers, or to carry into effect the purposes 
 for which the corporation is created. We regard as alike un- 
 sound and dangerous the doctrine that a public or municipal cor- 
 poration possesses the implied power to borrow money for its 
 ordinary purposes, and as incidental to that, the power to issue 
 commercial securities. The cases on this subject are conflicting, 
 but the tendency is towards the view above indicated. The opin- 
 ion of Mr. Justice Bradley/, in a case before referred to,^ evinces 
 a thorough comprehension of the whole question, and, in our judg- 
 ment, is sound in every proposition it advances, and must become 
 the law of this country. This view is confirmed by the almost 
 invariable legislative practice in the states to confer, when it is 
 deemed expedient, upon municipalities and public corporations, 
 in express terms, the power to borrow money or to issue negotiable 
 bonds or securities, and it is of instruments thus authorized that 
 we design principally to treat. It is an admitted and undisputed 
 doctrine that the power of public and municipal corporations to 
 subscribe to the stock of railway companies and issue bonds 
 therefor must be expressly conferred.^ 
 
 1 The Mayor v. Eay, 19 Wall. 478, of the nature of commeTcial paper, ex 
 1873. It is diflScult to understand on cept that by usage and custom, and some- 
 what ground the dissenting judges in this times by legislative enactment, they pass 
 case regarded the corporation nxarants by delivery. 
 
 as " negotiable securities of a commercial « The cases on this point are collected 
 
 character." The cases are almost uni- in sec. 161, note. See further on this 
 
 form that such instruments do not partake subject, ante, sec. 117 e( seq. 
 
§ 508.] CONTBACTS. 491 
 
 § 508. Taxation limited to Public Purposes. — What are Such. 
 — Aid to Railways. — Bonds to be paid by Taxation for What Pur- 
 poses authorized. — After the numerous decisions by courts of the 
 highest authority, it may now be regarded as a settled doctrine of 
 American law that no tax can be authorized by the legislature for 
 any purpose which is essentially /iwa^e, or, to state the proposition 
 in other words, for any but a public purpose.^ What is a public pur- 
 pose may not always be easy to determine ; but when determined, 
 it constitutes the boundary of the power of taxation. Whether 
 taxation to aid in the building of railways owned by private cor- 
 porations is taxation for a public purpose is a question which has 
 been discussed and decided by the courts of last resort in almost 
 every state in the Union, and by the Supreme Court of the United 
 States.^ Although the doctrine of the constitutionality of such 
 taxation has been vigorously resisted and combated, still it must 
 be admitted that the great preponderance of the judicial judg- 
 ments has been on the side of the competency of such legislation, 
 in the absence of special constitutional restraint.^ And there- 
 fore the legislature may authorize subscriptions by municipalities 
 to the stock of railway corporations, or donations to them, and 
 provide for the payment of such subscriptions or donations by 
 the issue and sale of the negotiable bonds of the municipality. 
 But a statute which authorizes the issue of bonds to be paid by 
 taxation to aid certain individuals or classes, or in aid of the man- 
 ufacturing enterprise of individuals or private corporations, is void, 
 
 1 Loan Assoc, v. Topeka, 20 Wall. Otoe Co., 16 Wall. 667; Loan Assoc. ». 
 655; Curtis v. Whipple, 24 Wis. 350; Topeka, sw/jro ; Township of Pine Grove 
 Whjting V. Fond du Lac, 25 Wis. 167 ; v. Talcott, 19 Wall. 666, 1873. 
 
 Allen ». Inhab. of Jay, 60 Me. 124; Jenk- » In Pine Grove Township v. Talcott, 
 
 ing V. Andover, 103 Mass.' 94; Lowell v. 19 Wall. 666, 677, Mr. Justice Swaym 
 
 Boston, 111 Mass. 454 ; Pray v. Northern says that such legislation has been sus- 
 
 Liberties, 31 Penn. St. 69 ; Mayor of New tained in nineteen out of twenty-one 
 
 York, tn re, 11 Johns. (N.Y.) 77; Camden states. As respects legislative power, 
 
 0. Allen, 2 Dutch. (N. J.) 398 ; Sharpless w. donations and subscriptions for stock stand 
 
 Mayor of Phila., 21 Peun. St. 147 ; Hanson on the same ground. Town of Queens- 
 
 V. Vembn, 27 Iowa, 47 ; Cooley Const, bury v. Culver, 19 Wall. 83, 1873. 
 Lira., 129, 175, 48 ; post, sec. 736, and cases If it be allowable to judge of a legal 
 
 cited; Cooley on Taxation, ch. iv., "where principle by its fruits, the dissenting and 
 
 the purposes for which taxes may be minority judges on this question will find 
 
 laid" are enumerated, and illustrated by much to confirm the conviction that their 
 
 the adjudicated cases. views were sound. But it is useless to 
 
 2 Ante, sees. 153, 157 ; Rogers v. Bur- fight that battle over again ; it has been 
 lington, 3 Wall. 654; Supervisors v. fought and lost. All that is left is the 
 Schenck, 5 Wall. 772, 779; Olcott v. Su- contemplation and contrast of what might 
 pervisors, 16 Wall. 678 ; Bailroad Co. v. have been and what is. 
 
492 laUNICIPAL CORPORATIONS. [CH. XIV. 
 
 this being, within the meaning of the rule, a private, as distin- 
 guished from a public purpose, ailthough in a remote or collateral 
 way the local public might be benefited thereby. 
 
 The execution of the powers ordinarily conferred upon municipal 
 corporations, such as improving highways and streets, construct- 
 ing water-works, gas-works, markets, preserving the public 
 health, and the like, are of course public purposes ; and upon leg- 
 islative authority being given, negotiable bonds may be issued 
 therefor. What will constitute sufficient authority for the issue 
 of such bonds will be considered further on. 
 
 § 509. Different ClasBes of Bonds. — Implied and Express Power 
 to issue. — Recitals. — Mode of Pleading. -^ Negotiable securities 
 of the kind here referred to have been issued by municipal corpor- 
 ations proper (generally under an express power to aid railways, 
 or for gas-works, water-works, or specified local improvements, 
 but sometimes under an implied power), and hy counties, usually 
 under express power (generally to aid railways, or for public 
 buildings, bridges, or improvements ^) and by organized townships 
 which are parts of counties, under express authority, and usually 
 as a means of aiding the. construction of railways, and by school 
 
 1 In several of the states power is given missioners or city council shall first sub- 
 to municipalities or counties to issue mit the question of issuing bonds to a 
 bonds to aid works of " internal improve- vote of the legal voters of said county or 
 ment." And under this generic term, the city, in the manner provided by ch. 
 question has arisen, What are works of ix. of the Revised Statutes of the state 
 internal improvement ? The Supreme of Nebraska for submitting to the people 
 Court of Alabama, in defining the phrase of a county the question of. borrowing 
 " internal improvements," says : " Where money." Session Laws of 1869, page 92. 
 internal improvements under state au- Under this act, a county and a precinct 
 thority are spoken of, it is universally issued bonds to build a bridge across the 
 understood that works within the state, Platte River, and on an application by a 
 by which the public are supposed to be tax-payer to restrain the collection of 
 benefited, are intended ; such as the im- taxes- levied to pay interest on such 
 provements of highways and channels bonds, the Supreme Court of Nebraska 
 of travel and commerce." Mayor et al. construing the above act in the light of 
 of Watumpka v. Newton, 23 Ala. 600. the legislation of the state, held that a 
 
 The legislature of Nebraska passed an bridge was a work of " internal improve- 
 
 act " That any county or city in the (State ment" within the meaning of the stat- 
 
 of Nebraska is hereby authorized to issue ute, and that under the power to aid, the 
 
 bonds to aid in the construction of any county might itself construct the bridge, 
 
 railroad or other work of internal improve- Uuion Pacific Railroad Co. b. Colfax 
 
 ment, to an amount to be determined by County, 4 Nebraska, 450, 1876,; s. c. 3 
 
 the county commissioners of such county. Cent. Law Jour. 287. 
 
 or the city council of such city, not ex- In Montana it is held that the legisla- 
 
 ceeding ten per cent of the assessed ture may authorize the creation of county 
 
 valuation of all taxable property in said indebtedness for public roads. Wilcox v. 
 
 county or city, provided the county com- Deer Lodge Co., 2 Mont. T. 574. 
 
§ 509.] CONTRACTS. 493 
 
 districts, under express power, to raise money to erect school- 
 houses. In some of the Western states, counties have been legis- 
 latively made the agents for the inhabitants of non-incorporated 
 townships, and in Missouri for " strips of territory " to issue 
 bonds in the name of the county, but to be paid out of the prop- 
 erty within the specified township or designated territorial limits 
 or strip of country.^ Reference is made to this subject here in 
 order to observe that where the bonds or securities are issued 
 under an express power, the legislative act, being the source of 
 the authority, measures and limits the power it confers, and the 
 same principles apply to the instruments issued under it by any 
 of these classes of corporations, or quasi corporations. But in 
 respect to all these corporations and quasi corporations, except, 
 possibly, municipal or chartered corporations proper, we suppose 
 that there is no solid ground to contend that they have any in- 
 herent or general power to issue commercial securities, and can 
 only do so by virtue of express legislative authority, which must 
 exist in fact and which ought regularly to be recited in the bond. 
 And in respect to municipal or chartered corporations, our opinion, 
 as indicated in a preceding section, is that they also have no such 
 inherent power, and no power whatever except so far as con- 
 ferred expressly or by fair implication. This is an important 
 principle, and it results from it that there is no presumption in 
 favor of the power to issue such securities, especially on the part 
 of quasi corporations ; and it would seem to follow from it that if 
 the bonds of such corporations contain no recital as to the au- 
 thority for their issue or their purpose, there would be no pre- 
 sumption in favor of their validity, and it would devolve on the 
 holder to aver and show by evidence aliunde that the bonds were 
 issued for some purpose authorized by statute. And hence also, 
 as a matter of pleading, the authority or power to issue the bonds 
 in suit ought to appear on the face of the declaration, or by some 
 recital in the bonds made part thereof; that is, it should thus 
 appear that they were issued for some purpose authorized by 
 statute.^ 
 
 1 Construction of the Missouri town- Bates County, /rf. 150; 92 TJ. S. 569,1875; 
 
 thip railway aid act of March 23, 1868, and s. c. .3 Cent. Law Jour. 367, referred to at 
 
 the rights and remedies of the bond- large, infia. Construction of Kansas legis- 
 
 liolder. Jordan v. Cass Co., 8 Dillon C. lation, Thayer ». Montgomery Co., 3 Dil- 
 
 C. K. 186 ; Same v. Same, Id. 245 ; Wash- Ion C. C. R. 389 and note, 
 burn ». Cass Co., Id. 251 ; Harshraan «. ^ Thayer v. Montgomery Co., 3 Dillon 
 
494 MUNICIPAL CORPORATIONS. [CH. XIV. 
 
 § 510. Bridges as Works of Internal Improvement. — Validity of 
 Bonds issued therefor. — In many states negotiable securities have 
 been issued under provisions authorizing the making of internal 
 improvements. In a late case in the U. S. Supreme Court ^ the 
 question arose as to whether a toll-bridge was a work of internal 
 improvement for which bonds might legally be issued to aid in 
 building. The court held that " all bridges intended and used as 
 thoroughfares are public highways, whether subject to toll or not, 
 and that county bonds which have been issued under a statute 
 authorizing the issue of such bonds in aid of an internal improve- 
 ment are valid when given for the building a bridge which is 
 a thoroughfare, though tolls are charged thereon by the county.^ 
 Whether the county have the right to demand tolls over a bridge 
 which is a thoroughfare will not aifect the validity of county bonds 
 issued to aid in the construction of the bridge." In the opinion 
 of the court, it was said : " In approaching the solution of these ques- 
 tions, the first inquiry that naturally presents itself is, whether a 
 toll-bridge, like that referred to, is a public bridge, and hence a 
 work of internal improvement. And we can hardly refrain from 
 expressing surprise that there should be any doubt on the subject. 
 What was the bridge built for, if not fit for public use ? Cer- 
 tainly not for the mere purpose of spanning the Platte River as an 
 
 C. C. R. 389 and note ; Kennard v, Cass owner, holder, or bearer of the coupons in 
 
 County, lb. 147 ; Nashville b. Ray, 19 suit good on general demurrer. Pendle- 
 
 Wall. 468. ton County v. Amy, 13 Wall. 297. 
 
 Mode of declaring on bonds and coupons. Proof of execution of bond when denied 
 
 Kennard v. Cass County, 3 Dillon C. C. under oath. Under the legislation of Al- 
 
 R. 147, and cases cited in note on p. 150; abama, non assumpsit does not involve the 
 
 Thayer u. Montgomery County, supra. factum of the bonds. Chambers County 
 
 Mode of pleading defences. The plea of i). Clews, 21 Wall. 317, 1874. 
 
 the general issue in assumpsit in states Corporation may plead nil debet and 
 
 where that mode of pleading is yet al- non est factum. Grand Chute v. Winegar, 
 
 lowed, puts in issue the question of the 16 Wall. S55, 1872. 
 
 authority of the officers to issue the bonds Remedy at laiv. Corporation cannot be 
 
 and the bona fides of the plaintiff, but pre- relieved against bond in equity if the 
 
 sumptively the plaititifE is a holder for ground for relief shows complete defence 
 
 value before maturity, without notice; or an adequate remedy at law. Grand 
 
 the contrary must be shown by. the de- Chute v. Winegar (case in equity), 15 
 
 fendant. Chambers County v. Cl^ws, 21 Wall. 373. 
 
 Wall. 317, 1874; Pendleton County v. i County Commrs. r. Chandler, 96 U. 
 
 Amy, 13 Wall. 297. Special plea errone- S. 205, 1877. Works of internal improvc- 
 
 ously held bad, considered as amounting ment defined. Fremont Building Assoc, 
 
 to the general issue ; and as the erroneous v. Sherwin, 6 Neb. 48, 1877 ; Township of 
 
 ruling was harmless, the judgment was Burlington c. JBeaaley, 94 U. S. 310; 
 
 not reversed. lb. Guernsey v. Burlington, 4 Dillon, 372, 
 
 Answer denying that plaintiff is the 1877. 
 
§ 510.] CbNTRACTS. 495 
 
 architectural ornament, however beautiful it may be as a work of 
 art; nor for the private use of the common council and their 
 families ; nor even for the exclusive use of the citizens of Fre- 
 mont. All persons, of whatever place, condition, or quality, are 
 ehtitled to use it as a public thoroughfare for crossing the river. 
 The fact that they are required to pay toll for its use does not 
 affect the question in the slightest degree. Turnpikes are public 
 highways, notwithstanding the exaction of toll for passing on 
 them. Railroads are public highways, and are the only works of 
 internal improvement specially named in the act; yet no one 
 can travel on them without paying toll. Railroads, turnpikes, 
 bridges, ferries, are all things of public concern, and the right to 
 erect them is a public right. If it be conceded to a private indi- 
 vidual or corporation, it is conceded as a public franchise ; and 
 the right to take toll is granted as a compensation for erecting the 
 work, and relieving the public treasury from the burden thereof. 
 Those who have such fianchises are agents of the public. They 
 have, it is true, a private interest in the tolls ; but the works are 
 public and subject to public regulation, and the entire public has 
 the right to use them. These principles are so elementary in the 
 common law that we can hardly open our books without seeing 
 them recognized or illustrated. ^ 
 
 " Of course there may be private bridges as there may be private 
 wa)'S, and they are put in the same category by the text-writers ; ^ 
 but all bridges intended and used as thoroughfares are public 
 highways, whether subject to toll or not. Regularly, all public 
 bridges' are a county charge, and the county is bound to erect 
 and maintain them ; ^ but others may be charged with this duty, 
 and a toll is the commonest of means for obtaining compensation 
 for its performance. In Angell on Highways it is said that 
 public bridges may be divided into three classes : ' First, those 
 which belong to the public, as state, county, or township bridges, 
 
 1 The court in County Commrs. v. Or, of the repair of a sea-wall, bridge, 
 
 Chandler, supra, quotes the following: — etc.: — Cleansing of a river, etc.: — But 
 
 " Comyn's Digest, title ' Toll-thorough,' toll-thorough cannot be claimed, simply, 
 
 commences thus : ' Toll-thorough is a without any consideration.' These few 
 
 sum demanded for a passage through sentences indicate conclusively that the 
 
 an highway : — Or, for a passage over a existence of a toll is not inconsistent with 
 
 ferry, bridge, etc. : — Or, for goods which the public character of the work on which 
 
 pass by such a port in a river: — And it it is exacted." 
 
 may be demanded in consideration of the ^ Woolr. Ways, 195. 
 
 repair of the pavement in a high street : — '1 Blacks. 357. 
 
496 MUNICIPAL COKPOEATIONS. [CH. XIV. 
 
 over whicli all people have a right to pass without or with paying 
 toll : these are built by public authority at the public expense, 
 either of the state itself or of a district or portion of the state. 
 Secondly, those which have been, built by companies (like turn- 
 pike and railroad companies) , or at the expense of private individ- 
 uals over which all persons have a right to pass on the payment 
 of a toll fixed by law. Thirdly, those which have been built by 
 private individuals, and which have been surrendered or dedicated 
 to the use of the public' ^ Chanc^lor Kent says, ' The privilege 
 of making a road or establishing a ferry, and taking tolls for the 
 use of the same, is a franchise, and the public have an interest in 
 the same ; and the owners of the franchise are answerable in 
 damages if they should refuse to transport an individual without 
 any reasonable excuse, upon being paid or tendered the usual rate 
 of fare.' In the same connection he enumerates in this class of 
 franchises, ferries, bridges, turnpikes, and railroads.^ 
 
 "In our judgment the bridge in question is a public bridge 
 and a work of internal improvement within the meaning of the 
 statute." 
 
 § 511. The Law of Railroad Aid Bonds. — The Law as de- 
 veloped in the Federal Courts. — The policy of burdening the 
 future has been sanctioned by the legislature, and the courts 
 have to deal with the legal rights of the municipality on the one 
 hand, and the holders of its obligations on the other. The de- 
 termination of their legal rights involves inquiries as complicated 
 as they are important. The law on this subject is substantially 
 the growth of the last twenty-five years. The decisions in the 
 various state and federal courts are very numerous, and on 
 some points conflicting.* It is impossible, were it even desirable, 
 
 1 Ang. Highways, sec. .38. Board of Salem, 20 Mich. 452 ; b. c. 9 
 
 8 3 Kent, 458, 459. See ante, sees. 117 Am. Law Reg. (N. S.) 487, before men- 
 
 et seq., 157 et seg. tioned {ante, sec. 157), the question arose 
 
 In Dawson Co. v. McNamar, 4 N. W. in the United States Circuit Court for 
 
 R. 991, holding that under the statute of the western district of Michigan, in an 
 
 Nebraska a court house is not an inter- action on municipal railway aid bonds, 
 
 nal improvement, but that a recital in whether the Federal Court was concluded 
 
 the bonds referring to such statute is by the judgment of the Supreme Court 
 
 no ground for declaring such bonds in- of the state, and if not whether the 
 
 valid. 74. holder of bonds, issued in full compliance 
 
 ' Ante, cli. vi. sec. 158, et seq. Since with the statute, could recover thereon, 
 
 the decision of the Supreme Court of Emmons, Circuit Judge, in an elaborate 
 
 Michigan, in the People v. Township opinion, holds, as to bonds issued before 
 
§ 511.] 
 
 CONTRACTS. 
 
 497 
 
 to compass within the limits of a single chapter all the learning, 
 and to refer to all the cases, upon the subject of municipal secur- 
 ities. It will not be attempted. By reason of the greater favor 
 with which the rights of the holders of such securities have been 
 regarded by the Supreme Court of the United States, the volume 
 of municipal bond litigation has of late years taken place in the 
 federal pourts. It is, therefore, necessary to consider the law 
 on this subject as determined by the Supreme Court of the 
 United States ; and our object will be to show exactly the doc- 
 trines and principles which have received the sanction of that 
 tribunal, and to illustrate, as far as needful, their application in 
 particular instances, referring incidentally or for further illus- 
 tration to the decisions of the state courts on the subjects or 
 topics discussed. 
 
 The Supreme Court of the United States has upheld the rights 
 of the holders of municipal securities with a strong hand, and has 
 set a face of flint against repudiation, even when made on legal 
 grounds deemed solid by the state courts, by municipalities 
 which had been deceived and defrauded. That such securities 
 have any general value left is largely due to the course of adjudi- 
 
 the decision of the Supreme Court of the 
 state, that the federal courts are not con- 
 cluded thereby, and that the constitution- 
 al power of the legislature to authorize 
 their issue, in the absence of special limi- 
 tations, must be regarded as settled, at 
 least as respects the federal tribunals. 
 The opinion displays great researcli and 
 learning, and will be found reported un- 
 der the name of Talcott v. Township of 
 Pine Grove, vol. I, Bench and Bar (N. 
 S.), 50, 1872. The Supreme Court of 
 Michigan adheres to its opinion on this 
 subject in the latter case of the People v. 
 State Treasurer, ante, sec. 157. The 
 course of reasoning of Emmons, J., in this 
 case is coincident with that of the Su- 
 preme Court of the United States in the 
 case of Olcott v. The Supervisors, 16 
 Wall. 678, 1872. In the case just men- 
 tioned the Circuit Court of the United 
 States, sitting in Wisconsin, decided that 
 since the Supreme Court of that state 
 liad held a certain act under which the 
 bonds in question were issued to be un- 
 constitutional, and had never holden oth' 
 erwise, that this construction, though 
 given after the bonds were issued, was 
 
 VOL. I. 32 
 
 binding upon or should be followed by the 
 federal courts. But the Supreme Court 
 of the United States was of the opinion 
 that, inasmuch as the decision of the 
 state Supreme Court was not based upon 
 any special and peculiar provision of the 
 state constitution, but upon general prin- 
 ciples of law, and related to contracts, the 
 case was not one in which the decision of 
 the State Court had any other than a, 
 persuasive force ; and it reversed the 
 judgment of the Circuit Court, and held 
 that the bonds could be enforced. Post,. 
 sec. 517. 
 
 In Gilchrist v. Little Eock, 1 Dillon C. 
 C. R. 261, and in Ranlettw. Leavenworth, 
 lb. 26,3, the Circuit Court of the United 
 States for the eighth circuit, prior to any 
 decisions of the Supreme Courts of the 
 states of Arkansas and Kansas as to the 
 constitutional validity of municipal rail- 
 way aid bonds, declined to pronounce 
 such bonds in the hands of bona fide hold- 
 ers to be void for the want of authority 
 in the state legislature to authorize their 
 issue. History of the Iowa municipal 
 bond cases. King v. Wilson, 1 Dillon C. 
 C. B. 555. 
 
498 MUNICIPAL COKPOEATIONS. [CH. Xir. 
 
 cation in respect thereto by the Supreme Court, and the reliance 
 which is felt by the public that it will stand firmly by the doc- 
 trines it has so frequently asserted. 
 
 § 512. Form of Bond. — Condition. — Municipal bonds, in the 
 usual form, containing words of negotiability, with coupons 
 attached, are absolute, and not conditional, promises to pay, and 
 hence are negotiable with all the incidents of negotiability, not- 
 withstanding they contain such a secital as the following : " This 
 bond is issued for the purpose of subscribing to the capital stock of 
 the Fort Scott and Allen County Railroad, and for the construc- 
 tion of the same through the said township, in pursuance of and in 
 accordance with an act of the legislature of the state of Kansas, 
 entitled ' An Act to enable municipal townships to subscribe for 
 stock in any railroad, and to provide for the payment of the same, 
 approved February 25, 1870 ' ; and for the payment of the said sum 
 of money and accruing interest thereon, in manner aforesaid, 
 upon the performance of the said condition, the faith of the afore- 
 said Humboldt Township, as also its property, revenue, and 
 resources, is pledged "; the court holding that the construction 
 of the road through the township was not a condition upon which 
 payment was to be made.^ 
 
 In giving its judgment, the court says : " Relying upon this 
 clause of the certificate, the township contends that the construc- 
 tion of the railroad through the township was a condition upon 
 which the payment was agreed to be made. We think, however, 
 this is not the true construction of the contract. The construc- 
 tion of the road as well as the subscription for stock was men- 
 tioned in the recital as the reasons why the township entered 
 into the contract, not as conditions upon which its performance 
 was made to depend. It was for the purpose of subscribing, and 
 to aid in the construction of the road, that the bond was given. 
 The words, ' upon the performance of the said condition,' cannot, 
 then, refer to anything mentioned in the recital, for there is no 
 condition there. A much more reasonable construction is, that 
 they refer to a former part of the bond, where the annual interest 
 is stipulated to be payable at a banker's, * on the presentation and 
 surrender of the respective interest coupons.' Such presentation 
 and surrender is the only condition mentioned in the instrument. 
 
 1 Humboldt Township v. Long, 92 U. S. 637, 1875; 3 Cent. Law Jour. 494. 
 
§ 513.] 
 
 CONTRACTS. 
 
 499 
 
 But that stipulation presents no such contingency as destroys the 
 negotiability of the instrument. It is what is always implied in 
 every promissory note or bill of exchange, that it is to be pre- 
 sented, and surrendered when paid. As well might it be said that 
 a note payable on demand is payable upon a contingency, and 
 therefore non-negotiable, as to affirm that one payable on its 
 presentation and surrender is, for that reason, destitute of nego- 
 tiabihty." i 
 
 § 513. Such Bonds are Negotiable Securities. — The following 
 doctrines are too well settled to be any longer open to question. 
 A bona fide purchaser of negotiable paper for value, before mar 
 turity, takes it freed from all infirmities in its origin, unless it 
 is absolutely void for want of power in the maker to issue it, 
 or its circulation is by law prohibited. Municipal bonds, paya- 
 ble to bearer, are subject to the same rules as other negotiable 
 paper.2 A purchaser of a municipal bond from a bona fide holder, 
 who obtained it for value before maturity, takes it free from 
 
 See also, Hotchkiss v. Nat. Bank, 
 21 Wall. 354, 1874. As to form of bonds, 
 seal, place of payment and delivery, see cas- 
 es cited Daniel on Neg. Instr., sees. 1492- 
 1499. Cannot be issued in blank as to 
 date. Jackson Co. v. Brush, 77 111. 59, 
 1875. 
 
 Power to substitute other bonds. Lynde 
 ». County, 16 Wall. 6 ; McKee v. Vernon, 
 3 DiUon C. C. R. 210. 
 
 Coupons. — Form of Instrument. — Maker 
 suable thereon in assumpsit, where the 
 bonds are made by the defendant corpor- 
 ation and refer to the coupon, though the 
 latter, signed by the agents of the cor- 
 poration, is in the form of an order or 
 check on a bank named therein. Town 
 of Queensbury v. Culver, 19 Wall. 83, 
 1873. Cases as to the form of coupons, 
 see Daniel on Neg. Instr., sees. 1492- 
 1496. May be made payable be^ontf lim- 
 its of the state, unless specially restrained 
 by statute. Lynde v. County, 16 Wall. 6. 
 
 How signed. — The coupons, where the 
 bonds are properly signed and sealed, may 
 be signed by a printed facsimile of the 
 maker's autograph, adopted for the pur- 
 pose, although there is no statute author^ 
 izing it. Pennington v. Baehr, 48 Cal. 
 
 665 ; s. o. 2 Cent. Law Jour. 92 ; see 
 McKee o. Vernon Co., 3 Dillon C. C. 
 R. 210; Lynde u. County, 16 Wall. 6; 
 State V. Terrebonne Parish Police Jury, 
 30 La. An. 287; Neeley v. Yorkville, 10 
 So. Car. 141. 
 
 2 Cromwell v. Sao Co., 96 U. S. 51, 1877 ; 
 Baes V. Hewitt, 20 Wis. 460 ; Gorgier v. 
 Mierville, 3 B. & C. 45 ; Brooks v. Mitch- 
 ell, 9 M. & W. 15 ; Goodwin v. Roberts, 
 L. R. 1 App. Cas. 476; Goodman v. 
 Harvey, 4 A. & E. 870 ; Burnham v. 
 Brown, 23 Me. 400 ; Judge v. Sherborne, 
 11 M. & W. 374 ; United States v. Union 
 Pacific Railroad, 91 U.S. 72 ; Miller B.Eace, 
 1 Burr. 452 ; White ». Vermont, etc. Co., 
 21 How. 575 ; Moran v. Miami County, 2 
 Black. 722, 1862 ; Mercer County ». Haok- 
 ett, 1 Wall. 83 ; Gelpecke v. Dubuque, 1 
 Wall. 175; San Antonio v. Lane, 82 Tex. 
 405; Lexington v. Butler, 14 Wall. 2?2; 
 St. Joseph H. Rogers, 16 Wall. 644, 1872 ; 
 Humboldt ». Long, 92 U. S. 642 ; Macon 
 Co. V. Shores, 97 U. S. 272 ; Supervisors 
 V. Galbraith, 99 U. S. 214 ; Commrs. v. 
 Block, 99 U. S. 686 ; Block v. Commrs. 
 99 U. S. 686 ; Supervisors v. Schenck, 5 
 Wall. 784. 
 
500 MUNICIPAL COEPOKA.TIONS. [CH. XIV. 
 
 equities, though he himself may have had notice thereof.^ An 
 overdue and unpaid coupon for interest, attached to a municipal 
 bond which has several years to run, does not render the bond 
 and the subsequently maturing coupons dishonored paper, so as 
 to subject them, in the hands of an innocent purchaser for value, 
 to defences good against the original holder.^ A bona fide 
 purchaser for value of negotiable securities before their matu- 
 rity may recover against the maker the full amount of them, 
 though he may have paid for them iess than their par value.^ 
 
 § 514. Lis Pendens not applicable. — Another doctrine estab- 
 lished in reference to such securities is that the principle of lis 
 pendens is not applicable thereto. There may be actions pend- 
 ing regarding the bonds, but this will not affect the purchaser 
 with constructive notice. 
 
 It is a general rule that all persons dealing with real property 
 are bound to take notice of a suit pending with regard to the 
 title thereof, and will, at their peril, purchase the same from any 
 of the parties to the suit. But this rule does not apply to ne- 
 gotiable securities purchased before maturity.* 
 
 § 515. Course of Decision in the Supreme Court of the United 
 States. — In municipal bond cases the Supreme Court of the 
 United States does not hold itself concluded by decisions of the 
 state courts made after the bonds have been negotiated, unless 
 possibly where the question is one exclusively depending upon the 
 construction of local and peculiar provisions of the state consti- 
 
 1 Cromwell ». Sac Co., 96 U, S. 51, bonds or obligations for less than their 
 1877. par value. Memphis v. Brown, 20 Wall. 
 
 2 Cromwell v. Sac Co., 96 U. S. 51, 289, 1873 ; Shirk v. Pulaski County, 4 
 1877; Goodman B.Simonds, 20 How. 343; Dillon, 209, 1877 ; Mayor of Nashville 
 Murray «. Lardner, 2 Wall. 110 ; Nat. v. Ray, 19 Wall. 468, 1873. 
 
 Bank v. Kirby, 108 Mass. 497. ■> Leitch v. Wells, 48 N. Y. 586 ; Stone 
 
 8 Cromwell v. Sac Co., 96 U. S. 51, v. Elliott, 11 Ohio St. 252 ; KiefEer ». 
 
 1877; Lay v. Wissman, 86 Iowa, 305; Ehler, 18 Pa. St. 388; Durant w. Iowa 
 
 National Bank v. Green, 33 Iowa, 140 ; Co., 1 Woolw. 69 ; Winston v. Westfeldt, 
 
 Park Bank w. Watson, 42 N. Y. 490 ; Fow- 22 Ala. 760; Olcott v. Supervisors, 16 
 
 leri). Strickland, 107 Mass. 552; Stoddard Wall. 678; National Bank v. Texas, 20 
 
 V. Eimball,6 Cush. (Mass.) 469; Allaire w. Wall. 72; Minns w. West, 38 Ga. 18; War- 
 
 Hartshorne, IZab. (21 N. J. L.)665; Wil- ren n. Marcy, 97 U. S. 96; Warren v. 
 
 Hams V. Smith, 2 Hill (N. Y.), 301 ; Chic- Post, 97 U. S. 110 ; Warren v. Portsmouth, 
 
 opee Bank v. Chapin, 8 Met. (Mass.) 40. 97 U. S. 110; Orleans v. Piatt, 99 U. S. 
 
 As to power of a city or municipality to 676 ; Cass Co. v. Gillette, 100 U. S. 586. 
 sell, or to agree to sell, or dispose of its 
 
§ 515.] 
 
 CONTRACTS. 
 
 501 
 
 tution or enactments.'^ It has adopted, when necessary to protect 
 the bona fide holders of such securities, liberal constructions of 
 statutes and charters authorizing the creation of such debts.^ 
 Against such holders it has given no favor to defences based upon 
 mere irregularities in the issue of the bonds or non-compliance 
 with preliminaiy requirements, not going to the question of 
 power to issue them ; ^ and has held that the circuit courts of 
 the United States were clothed with fuU authority, by mandamus 
 or otherwise, to enforce the collection of judgments rendered 
 therein on such bonds, and that this authority could not in the 
 
 1 Gelpfecke v. Dubuque, 1 Wall. 175, 
 1865 ; Havemeyer v. Iowa County, 3 76. 
 294 ; Thompson v. Lee County, lb. 327 ; 
 Lee County «. Rogers, 7 lb. 181. 
 See particularly on this point, 01- 
 cott V. Supervisors, 16 Wall. 678, 1872 ; 
 Butz V. Muscatine, 8 Wall. 575, explained ; 
 Supervisors v. United States, 18 Wall. 71 ; 
 Chicago V. Sheldon, 9 Wall. 50; Pine 
 Grove Township v. Talcott, 19 Wall. 
 666; Town of Elmwood v. Marcy, 92 
 U. S. 289, 1875; Foote v. Johnson Co., 
 5 Dill. 208, 1878; Cass Co. v. Johnson, 
 95 U. S. 360;-. Cutler i>. Board, etc., 56 
 Miss. 115; Vicksburg v. Lombard, 51 
 Miss. 126; post, sec. 517; City v. Lara- 
 son, 9 Wall. 477 ; Campbell v. Kenosha, 
 5 Wall. 194, 1866. Read last two cases 
 in connection with Foster v. Kenosha, 
 12 Wis. 616, which, in effect, is over- 
 ruled or disregarded. See on this point 
 Steines v. Franklin County, 48 Mo. 167 ; 
 Columbia County v. King, 13 Fla. 451. 
 
 ' In speaking of the force of the state 
 court decisions in the federal courts in this 
 class of cases, Mr. Justice Strong, in Ven- 
 ice V. Murdock, 92 U. S. 494, 1875, 'holds 
 this language : " It is argued, however, 
 that the New York decisions (Starin ». 
 Genoa ; Gould v. Sterling, 23 N. Y. 439, 
 466) are judicial constructions of a statute 
 of that state, and, therefore, that they 
 furnish a rule by which we must be 
 guided. The argument would have force 
 if the decisions, in fact, presented a clear 
 case of statutory construction. But they 
 do not. They are not attempts at inter- 
 pretation. They would apply as well to 
 the execution of powers or authorities 
 granted by private persons as they do to 
 the issue of bonds under the statute of 
 April 16, 1852. They assert general prin- 
 
 ciples, to wit, that persons empowered to 
 borrow money and give bonds therefor, 
 for the purpose of paying it to an im- 
 provement company, are not authorized 
 to deliver the bonds directly to the com- 
 pany, — a doctrine denied in this court, in 
 the Supreme Court of Pennsylvania, and 
 even in the Court of Appeals of New 
 York. People v. Mead, 24 N. Y. 124 ; 
 The Town of Venice v. Breed, 65 Barb. 
 597. They assert, also, that where an 
 authority is given to an officer to execute 
 and issue bonds (on the assent of two 
 thirds of the voters of a town, the assent 
 to be obtained by the officer, and filed in 
 a public office, with an affidavit verifying 
 the assent), the veriflcation amounts to 
 nothing, subserves no purpose, and that 
 a bona fide holder of the bonds is bound to 
 prove that the requisite number of voters 
 did actually assent. They assert this as 
 a general proposition. They do not as- 
 sert that the statute so declares, or that 
 such is even its implied requisition. There 
 is, therefore, before us no such case of 
 the construction of a state statute by 
 state courts as requires us to yield our 
 own convictions of the right, and blindly 
 follow the lead of others, eminent as we 
 freely concede they are." 
 
 2 Gelpecke v. Dubuque, supra; Meyer 
 V. Muscatine (charter autliorizing borrow- 
 ing of money), 1 Wall. 384 ; Rogers v. Bur- 
 lington, 3 lb. 654 ; Van Hostrup v. 
 Madison City, 1 Wall. 291; Seybert 
 V. Pittsburg, 1 Wall. 272. 
 
 ' Knox County v. Aspinwall, 21 How. 
 539; Moran v. Coramrs. 2 Black, 722; 
 Bissell 0. Jeffersonville, 24 How. 287; 
 Marsh v. Fulton County, 10 WaE 676, 
 1870. 
 
502 MUNICIPAL COEPOKATIONS. [CH. XIV. 
 
 least be interfered with, either by the legislature or the judiciary 
 of the states.^ It has upheld and protected the rights of such 
 creditors with a firm hand, disregarding, at times, it would seem, 
 principles which it applied in other cases, and asserting the juris- 
 diction and authority of the federal courts with such striking 
 energy and vigor as apparently, if not actually, to trench upon 
 the lawful rights of the states and the acknowledged powers of 
 the state tribunals ; yet, upon the whole, there is little doubt 
 that its course has had the approvq^ of the profession in general 
 and of the public, and it ought to teaoh municipalities the lesson 
 that if, having the power to do so conferred upon them, they 
 issue negotiable securities, they cannot escape payment if these 
 find their way into the hands of innocent purchasers. Unfortu- 
 nately, as will presently appear, the decisions upon this im- 
 portant subject in the Supreme Court of the nation and in 
 some of the state courts are not in all respects harmonious.* 
 
 « 
 § 516. (416 a.) Under the line of decision in the several states 
 heretofore adverted to, sustaining the constitutionality of muni- 
 cipal railway aid bonds,^ millions upon millions of these securi- 
 ties have been issued by townships, counties, and cities in the 
 different states, and sooner or later their issue has been quite 
 generally, though not always, followed by attempts to escape 
 payment. The misrepresentations which have oftentimes in- 
 duced the issue of the bonds, and the disappointment arising 
 from the over-estimated benefits of the roads to the localities 
 which aided their construction, make the attempts to avoid pay- 
 ment of the bonds not unnatural, and more excusable than they 
 would otherwise be. The judicial history of these attempts is 
 found in the law reports of the diflferent states and in those of 
 the federal tribunals ; and a comparison of their judgments 
 shows such a diversity of opinion upon some important questions 
 connected with such securities as to render it most expedient to 
 refer separately to the decisions of the two classes of courts. It 
 is particularly important to notice with some fulness and care 
 the opinions of the Supreme Court of the United States, since, 
 
 1 Von Hoffman v. Quincy, 4 Wall. 535 ; = xhe general questions relating to the 
 
 Galena v. Amy, 5 lb. 705 ; Kiggs v. John- power to aid railways are considered in a 
 
 son County, 6 lb. 166; Butzu. Muscatine, previous chapter. Ante, oh. vi. sec. 153 
 
 8 lb. 675. See, also, post, ch. xx. on Man- et seq. 
 damns, and cases there cited, n Ante, sec. 163 et seq. 
 
§ 517.] CONTRACTS. 503 
 
 tor the reasons above mentioned, the course of this tribunal and 
 of the state tribunals has been such as to draw to the Federal 
 courts, in most of the states, all, or nearly all, of the litigation 
 arising from this source. Wherein the state courts and the fed- 
 eral courts differ, and wherein they agree, will best appear by 
 referring to some of the principal adjudications. 
 
 § 517. (416J) In the well-known Iowa municipal railway aid 
 bond cases,^ the bonds were issued after the state Supreme Court 
 had affirmed the constitutional power of the legislature to author- 
 ize their issue, and before the same court had reversed its holding 
 in this respect; and in these cases the Supreme Court of the 
 United States held it was at liberty to take, and it did take, the 
 view which obtained in the highest judicial tribunal of the state 
 at the time the bonds were issued; and hence it adjudged that 
 the bonds were binding upon and enforceable against the muni- 
 cipalities and counties, although the Supreme Court of the state 
 was at the same time holding that, under the constitution and 
 laws of Iowa, the bonds were utterly void. Subsequently, the 
 Supreme Court of the United States went further, and held 
 that such bonds in the hands of innocent holders are valid, 
 although the state Supreme Court had held otherwise, the lat- 
 ter basing its judgment, however, upon the general principles of 
 the law and not upon any special and peculiar provision of the con- 
 stitution of the state.2 It seems quite clearly to be the doctrine 
 of the United States Supreme Court upon this subject, that it is 
 not concluded by the decisions of the state courts in any case 
 where they are made after the bonds are issued and have been 
 sold in the markets ; and such is undoubtedly its doctrine in all 
 cases relating to this class of securities, where the questions in- 
 volved do not turn upon the construction of peculiar provisions 
 of the state constitution and laws. It has not decided that it 
 
 1 Gelpecke v. Dubuque, 1 Wall. 175, courts upon the Bubject of municipal 
 
 1865 ; Thompson v. Lee Co., 3 Wall. 327, railway aid bonds in Iowa. That obligar 
 
 1865 ; Havemeyer v. Iowa County, 3 tions of contracts cannot be impaired by 
 
 Wall. 294/ Rogers v. Burlington, 8 Wall, subsequent decisions see, also, Chicago v. 
 
 654,1865; Mitchell b. Burlington, 4 Wall. Sheldon, 9 Wall. 50; City v. Lamson, 9 
 
 270; ante, sec. 516 ; Lee County v. Bog- Wall. 477, 1869 ; Parmlee c. Chicago, 60 
 
 ers, 7 Wall. 181, 1868; Butz v, Musca- 111.267,1871. 
 
 tine, 8 Wall. 575; King v. Wilson, 1 2 oicott v. Supervisors, etc., 16 Wall. 
 
 Dillon C. C. 555, 1871, gives a view of 678, 1872; ante, sec. 511, note, 
 the decisions of the state and federal 
 
504 MUNICIPAL COEPOEATIONS. [OH. XIV. 
 
 would hold valid bonds issued after the Supreme Court of the 
 state had held them to be invalid, and it would not probably so 
 hold, since such a doctrine is not necessary to protect the inno- 
 cent owners of such securities, and would involve the consequence 
 of the federal coTirts setting up a policy in a state contrary to its 
 constitution and laws as expounded by its authorized and right- 
 ful tribunals.^ 
 
 § 518. (416e) General Result stated. — As preliminary to a 
 more immediate view of some of the leading cases decided by the 
 Supreme Court of the United States upon municipal railway aid 
 securities, it may be observed that the general result of its de- 
 cisions have been very clearly summarized in one of its judgments 
 relating to bonds of this character. " Bonds, payable to bearer," 
 says the learned justice who delivered the opinion of the court, 
 " issued by a municipal corporation to aid in the construction of a 
 railroad, if issued in pursuance of a power conferred by the legis- 
 lature, are valid commercial instruments ; but if issued by such a 
 corporation, which possessed no power from the legislature to 
 grant such aid, they are invalid, even in the hands of innocent 
 holders. Such a power is frequently conferred to be exercised in 
 a special manner, or subject to certain regulations, conditions, or 
 qualifications ; but if it appears that the bonds issued show by 
 their'recitals that the power was exercised in the manner required 
 by the legislature, and that the bonds were issued in conformity, 
 with those regulations and pursuant to those conditions and qual- 
 ifications, proof that any or all of those recitals are incorrect will 
 not, constitute a defence to the corporation in a suit on the bonds 
 or coupons, if it appears that it was the sole province of the mu- 
 nicipal officers who. executed the bonds to idecide whether or not 
 there had been an antecedent compliance with the regulation, 
 condition, or qualification which it is alleged was not fulfilled." ^ 
 
 It is definitely settled by this court that mere irregularities in 
 the exercise of the power will not avail as a defence against an 
 
 1 King V. Wilson, 1 Dillon C. C. 555, In general throughout this work the 
 
 1871 ; Commercial Bank v. lola, 2 Dillon author has not referred at length in the 
 
 C.C.R. 353, 1873. See, however, on this text to particular cases, but the impor- 
 
 subject, Butz v. Muscatine, 8 Wall. 575, tance of this subject has induced him to 
 
 1869; Olcott v. Supervisors, 16 Wall, depart to some extent from his usual 
 
 578. course. 
 
 " St. Joseph Township v. Rogers, 16 
 WaU. 644, 1872, opinion by aifford, J. 
 
§ 519.] CONTRACTS. 505 
 
 innocent holder for value, and that the only defence open against 
 such a holder is the want of power to issue the bonds. Obviously, 
 then, the most important inquiries to be' considered are those 
 which relate to the question, when the power exists or arises ; 
 who is to decide whether it existed or had arisen when the bonds 
 were issued ; and what will estop the corporation which issued 
 them to set up in defence a non-compliance with antecedent or 
 preliminary conditions : and it is these inquiries that we shall 
 seek to illustrate by a reference to the decisions of the courts in 
 cases which have arisen for judgment. 
 
 § 519. Condition precedent to Exercise of Power. — Popular 
 Vote. — Non-compliance with Condition Precedent. — Recital. — 
 Restraining Issue of Bonds. — Generally, the power of the muni- 
 cipality, county, or other local civil subdivision of the state, to sub- 
 scribe for the stock of railway companies, and issue bonds in 
 payment, is conferred upon certain officers, not absolutely but on 
 the condition of a previous approving popular vote, or the assent 
 of a majority or of some greater proportion of the resident tax- 
 payers. If this sanction is given, then the officers, by the usual 
 legislation, are authorized to make the subscription and to issue 
 bonds sn payment therefor. A very common defence to such 
 bonds consists in a denial that the condition precedent, i. e., the 
 approving vote, the assent of the tax-payers, or whatever else it 
 may be, has, in fact, been complied with ; and hence, as contended, 
 the power to issue the bonds did not exist, or never arose. 
 
 Where the legislation is of this character, — namely, requiring 
 compliance with some such condition before issuing the bonds, — 
 the Supreme Court of the United States does not hold, as we 
 understand their decisions, that the power can be rightfully exer- 
 cised unless the condition precedent has been performed. As 
 between the immediate parties, the municipality and the railroad 
 company, doubtless, the inquiry is open, and fully open, whether 
 the condition on which the rightful exercise of the power depends 
 has been complied with; and if it has not been, on due applica- 
 tion, the issue of the bonds will be erijoined,i or if they are in 
 the hands of the original party or of holders with notice, an action 
 to enforce the bonds may, if no estoppel exists, be successfully 
 
 I As to the duty of enjoining the issue set up irregularities in the exercise of the 
 of honds on the pain of being estopped to power, see post, sec. 536 et seq. 
 
506 MUNICIPAL COEPOBATIONS. [CH. XlV. 
 
 defended.! Want of power is a good defence against a railroad 
 company, endeavoring to enforce by mandamus the execution and 
 delivery to it of such bonds by the municipality .^ 
 
 In a suit by the payee, or by a person not an innocent holder, 
 there is no legal ground for maintaining that the action of the 
 local officers in issuing the bonds, or any recital they may make 
 therein, will conclude the question whether the condition pre- 
 cedent has been performed ; and there is no decision of the 
 Supreme Court of the United Statjps in conflict with this state- 
 ment of the law, but several which support it.^ 
 
 § 520. Estoppel hy Redtal to show Non-compliance with Condi- 
 tions Precedent. — Knox County v. Aspinwall. — When the bonds 
 have been issued and sold in the market, and before maturity 
 have come for value, and without notice, into the hands of inno- 
 cent holders, another element of great importance may, according 
 to the doctrine of the Supreme Court, be introduced into the trans- 
 action, as respects compliance with conditions precedent, — the 
 element of estoppel. This is so important in its practical relations 
 to the subject as to require careful and minute consideration. 
 Conceding that the rightful exercise of the power to issue the 
 bonds depends upon a condition precedent, for example, a popu- 
 lar vote in favor of the proposition, when, how, and by whom is it 
 to be ascertained whether the condition precedent has been per- 
 formed ? 
 
 Is it to be ascertained, once for all, before the bonds are issued? 
 Or is it open to inquiry and contestation in every action upon a 
 coupon or bond? Is the municipality estopped, in favor of a bona 
 fide holder of the bonds, from setting up this defence ? and in 
 what cases will the estoppel be available in favor of the holder ? 
 These are grave questions, and cases involving them have been 
 
 J Chambers County v. Clews, 21 Wall, a material departure from the statute. 
 
 317, 321, 1874. Union Pacific RaiU-oad Co. v. Lincoln 
 
 2 Lamoille, etc. Bailroad Co. v. Fair- County, 3 Dillon C. C. R. 300, 1878 ; Same 
 
 field, 51 Vt. 257. i>. Merrick, lb. 359 ; Railroad Co. v. Hart- 
 
 » Chambers County v. Clews, supra, ford, 58 Me. 23 1 ante, sec. 163, and cases 
 
 That court has several times adverted to cited. " In cases arising before the issue of 
 
 the duty of the corporation or tb,x-payer the bonds, estoppel has' no place, and the 
 
 to interfere by injunction to restrain the sound doctrine is, that compliance with 
 
 issue of bonds where the statute has not all substantial or material conditions Is 
 
 been complied with. Injunction lies to re- essential." lb. 
 strain issue of bonds where there has been 
 
§ 521.] CONTRACTS. 507 
 
 frequently before the Supreme Court, — the first and leading case 
 Tbeing The Commissioners of Knox County v. Aspinwall.^ 
 
 § 521. (417) The Case of The Commissioners of Knox County 
 V. Aspinwall,^ respecting the liability of municipal and public 
 corporations on their negotiable railway aid bonds, deserves to 
 be particularly noticed, as it is a leading case on this subject. 
 The action was by a bona fide holder for value of certain cou- 
 pons attached to bonds issued by Knox County, Indiana, in 
 payment of a subscription to railroad stock. The defence was 
 that the bonds were not binding upon the county because the 
 county commissioners possessed no power to execute them. By 
 statute, the county commissioners were authorized "to take stock 
 in the railroad, payable in county bonds, provided a majority of 
 the qualified voters of said county, at a designated election, shall 
 vote for the same." The ground upon which the want of authority 
 to execute the bonds was placed by the county was the omission 
 to comply with the requisition of the statute in respect to the 
 notices for the election (which the statute provided should be 
 held on a fixed day), at which a vote was to be taken for and 
 against a subscription to the stock of the railroad company. It 
 was admitted in the case that the required notices were not 
 given ; and the court seemed to concede " that this would be 
 decisive against the authority of the county to issue the bonds, 
 were it not for the question which underlaid it ; and that is, Who 
 is to determine whether or not the election has been properly 
 held, and a majority of the votes cast in favor of the subscrip- 
 tion ? ... Is it," the court inquires, " to be determined by the 
 court, in this collateral way, in every suit upon the bond, or 
 coupon attached, or by the board of commissioners, as a duty 
 imposed upon it before making the subscription ? " The court 
 were of the opinion, and so decided, that the county commis- 
 sioners were the proper judges whether or not a majority of the 
 votes in the county had been cast in favor of the subscription to 
 the stock, and whether or not the election had been properly 
 held, and that these questions cannot be determined collaterally 
 in actions upon the bonds or coupons. The court, in assigning 
 the reasons for this holding, speaking through Mr. Justice Nelson, 
 
 1 Commissioners of Knox County v. ^ 21 How. 539, 1858. 
 Aspinwall, 21 How. 539, 1858. 
 
508 MUNICIPAL COEPORATIONS. [CH. XIV. 
 
 say: "The right of the board [of county commissioners] to act 
 in execution of the authority [conferred by the statute] is placed 
 upon the fact that a majority of the votes had been cast in favor 
 of the subscription ; and to have acted without first ascertaining 
 it, would have been a clear violation of duty ; and the ascertain- 
 ment of the fact was necessarily left to the inquiry and judgment 
 of the board itself, as no other tribunal was provided for the pur- 
 pose. The board was one, from its organization and general 
 duties, fit and competent to be th^ depository of the trust thus 
 confided to it. The persons composing it were elected by the 
 county, and it was already invested with the highest functions 
 concerning its general police and fiscal interests. . . . We do not 
 say," he adds, " that the decision of the board would be conclu- 
 sive in a direct proceeding to inquire into the facts previously to 
 the execution of the power, and before the rights and interests- 
 of third parties had attached ; but after the authority has been 
 executed, the stock subscribed, and the bonds issued and in the 
 hands of innocent holders, it would be too late, even in a direct 
 prooee4ing, to call it in question. Much less can it be called in 
 question to the prejudice of a bona fide holder of the bonds in 
 this collateral way." ^ 
 
 § 522. (418) The author ventures to remark that he believes 
 the decision to be right, and for the reasons thus clearly stated 
 by this able and experienced judge. But as sustaining the deci- 
 sion, a further position by way of argument is taken, which, 
 unless it is to be understood in the limited sense herein suggested, 
 he considers to be untenable, of a most dangerous nature, and 
 subversive of an important principle in the law of agency appli- 
 cable both to private and public agents. That position is this : 
 that a purchaser of the bonds had a right to assume, from the 
 mere fact that they were issued, that the condition on which the 
 county was authorized to issue them had been complied with, 
 and that a reeital in the bonds that the requirements of the law 
 had been met amounts to an estoppel in pais upon the corpora- 
 tion, of which the officers issuing the bonds were the public 
 agents. That this is the position assumed by the court will 
 appear by the following extract : " Another answer," continues 
 Mr. Justice Nelson, " to this ground of defence is, that the pur- 
 
 1 Commissioners of Knox County v. Aspinwall, 21 How. 539, 644 ; infra, sec. 524, n. 
 
522.] 
 
 CONTKAOTS. 
 
 509 
 
 chaser of the bonds had a right to assume that the vote of the 
 county, which was made a condition to the grant of the power, 
 had been obtained, from the fact of the subscription by the board 
 to the stock of the railroad company, and the issuing of the bonds. 
 The bonds, on their face, import a compliance with the law under 
 which they were issued. ' This bond,' we quote, ' is issued in 
 part payment of a subscription of $200,000, by the said Knox 
 County, to the capital stock, etc., by order of the board of com- 
 missioners, in pursuance of the third section of the act, etc., passed 
 by the general assembly of the state of Indiana, and approved 
 Jan. 15, 1849.' The purchaser was not hound to look further for 
 evidence of a compliance with the conditions to the grant of the 
 power." ^ This principle has been reitecated and this case fre- 
 quently referred to and followed, and one of the two grounds on 
 which it rests, if not indeed both of them, still has the approval 
 of the court, as will be seen by its most recent judgments.^ 
 
 1 lb. 545. If by this it is meant that 
 where the power to issue bonds is given 
 upon the condition of a previous majority- 
 vote in favor of the proposition, the pul)- 
 lic or municipal officers can, where no vote 
 has been taken or the proposition has been voted 
 down, bind the county by the issue of bonds 
 and false recitals therein, the author feels 
 bound respectfully to insist that, in his 
 judgment, the principle is unsound, and 
 certainly it is one which will entail need- 
 less and incalculable injury upon public 
 and municipal corporations. These secu- 
 rities, it is true, are intended to be sold in 
 distant markets, and therefore It cannot 
 reasonably be required that purchasers 
 shall be affected with irregularities, but 
 they ought to be held to ascertain whether 
 the substantial precedent conditions of 
 the power have been, in fact, complied 
 with, and it ought not to be in tlie power 
 of public officers, unless the decision of 
 this question is plainly committed to them, 
 to bind the corporation for which they act 
 by their mere statements of what is in 
 point of fact untrue. 
 
 On grounds similar to those here sug- 
 gested it has been held by the Supreme 
 Court of Missouri that bonds issued wliere 
 an election is required, but none ever held 
 and no vote taken, are void, because of 
 want of power to issue them, — void in 
 the hands of all persons ; but they may 
 
 be validated by the legislature. Steines 
 V. Franklin County, 48 Mo. 167, 1871. 
 Wagner, J., in this case reviews the prior 
 adjudications of the United States Su- 
 preme Court and of the Supreme Court 
 of the state of Missouri, and limits tlie 
 language used by the judges to the facts 
 before them, and distinguishes between 
 the case of irregularities in an election 
 and no election whatever. See, also, Car- 
 penter V. Inhabitants of Lathrop, 51 Mo. 
 483, 1873. But see text, sec. 524, and 
 cases cited In the next note 
 
 2 The cases in which Knox County ii. 
 Aspinwall has been cited and followed or 
 applied, are : Moran v. Miami County, 
 2 Black, 722, 724, 1862 ; Supervisors v. 
 Schenck, 5 Wall. 772, 18fi6 ; Rogers v. Bur- 
 lington, 3 Wall. 654 ; Woods v. Lawrence 
 County, 1 Black, 386 ; Mercer County v. 
 Racket, 1 Wall. 83 ; Meyer v. Muscatine, 
 1 Wall. 385, 393 ; Van Hostrup v. Madison 
 City, 1 Wall. 291 ; Bissell v. Jeffersonville, 
 24 How. 287 ; Gelpecke v. Dubuque, 1 
 Wall. 175, 203 ; Pendleton County v. Amy, 
 18 Wall. 297, 1871 ; St. Joseph Township 
 V. Rogers, 16 Wall. 644, 1872; Lexingtott 
 V. Butler, 14 Wall. 284; Grand Chute v. 
 Winegar, 15 Wall. 371, 1872; Town of 
 Coloma V. Eaves, 92 U. S. 484, 491; 
 County of Randolph v. Post, 93 D. S. 
 502 ; County of Leavenworth v. Barnes, 
 94 U. S. 70 ; Comnlrs. of Douglass Co. v. 
 
510 
 
 MUNICIPAL COKPOKATIONS. 
 
 [CH. xnr. 
 
 § 523. Notwithstanding the broad language in some of the 
 opinions to the effect that where under any circumstances the 
 power exists in the corporation to issue negotiable secui-ities, 
 the Una fide holder has the right to presume that they were duly 
 issued, yet when the facts of the cases are considered in which 
 such language is used, we are unable, after a careful review of the 
 decisions of the Supreme Court, to say that they lay down the 
 doctrine that merely by recital in the bonds the corporation will, 
 under all circumstances in favor af an innocent holder, be es- 
 topped from showing that in point of fact no election whatever 
 was holden, or that any other condition precedent to the exercise 
 of the power has not been complied with. If upon a true con- 
 struction of the legislative enactment conferring the authority, 
 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 recital of 
 
 BoUes, 94 U. S. 104 ; Commrs. of Johnson 
 Co. V. Thayer, 94 U. S. 631 ; County of Cass 
 t>. Johnson, 95 U. S. 360 ; City of St. Louis 
 o. Shields, 62 Mo. 247; Smith v. Clark 
 County, 54 Mo. 58, 81 ; Daviess Co. v. 
 Huidekoper, 98 TJ. S. 98, 1878; Nauvoo 
 V. Bitter, 97 XJ. S. 389, 1878 ; Venice v. 
 Murdock, 92 XJ. S. 494 ; Anthony v. Jasper 
 Co., 101 U. S. 693, 1879 ; Warren v. Marcy, 
 97 U. S. 96 ; Mealey v. St. Clair Co., 3 
 Dill. 163 ; Allen v. Cameron, 3 Dill. 175 ; 
 Wyatt V. Green Bay, 1 Biss. 292 ; Hackett 
 V. Ottawa, 99 U. S. 86 ; San Antonio v. 
 MehaflFy, 96 U. S. 312, 1877 ; Commrs. v. 
 January, 94 U. S. 202; East Lincoln 
 r. Davenport, 94 U. S. 801 ; Moultrie v. 
 Savings Bank, 92 U. S. 631 ; Cincinnati v. 
 Morgan, 3 Wall. 275; Lynde v. Winne- 
 bago, 16 Wall. 6; Kennicott ». Super- 
 visors, 16 Wall. 452 ; Marcy «. Oswego, 
 92 U. S. 637 ; Humboldt ». Long, 92 U. S. 
 642 ; Calloway Co. v. Foster, 93 U. S. 567 ; 
 Commrs. v. Thayer, 94 TJ. S. 631; San 
 Antonio o. Barnes, 96 U. S. 315, 1877; 
 Wilkinson v. Peru, 61 Ind. 1; Webb v. 
 Hem Bay, L. R. 5 Q. B. 642; Imperial 
 Land Co., in re, L. R. 11 Eq. 478; Black 
 V. Cohen, 52 Ga. 621, 1874; Shorter v. 
 Mayor, etc., 52 Ga. 621, 1874 ; Lyons v. 
 Munson, 99 U. S. 684; Weyauwega v. 
 Ayling, 99 U. S. 112 ; Supervisors «. Gal- 
 braith, 99 U. S. 212; Bargate v. Short- 
 ridge, 5 Clark, H. L. 297; WUson o. 
 
 Salamanca, 99 U. S. 499, affirming Or- 
 leans V. Piatt, 99 U. S. 676, 1878, citing 
 among other cases Royal British Bank u. 
 Turquand, 6 El. & Bl. 325; Menasha v. Haz- 
 ard, 101 TJ. S 1879; Pompton ». Cooper 
 TJnion, 101 TJ. S. 196 ; Marcy v. Oswego, 
 92 TJ. S. 638; Scotland v. Thomas, 94 U. 
 S. 682 ; Schuyler Co. «. Thomas, 98 TJ. S. 
 169, affirming Calloway Co. u. Foster, 93 
 U. S. 567; Scotland Co. v. Thomas, 94 U. S. 
 682 ; Cass Co. v. Johnson, 95 U. S. 360, 
 affirmed in Douglass v. Pike Co., 101 TJ. 
 S. 677; Darlington v. Jackson Co., 101 
 U. S. 688; Foote v. Pike Co., 101 U. S. 
 688; Roberts v. BoUes, 101 TJ. S. 119, 
 affirming Scotland v. Thomas, supra; 
 Macon Co. v. Shores, 97 TJ. S. 272; and 
 a certificate of the proper officer that 
 the bonds have been duly issued and the 
 signatures are genuine, and that the same 
 have been duly registered in his office ac- 
 cording to law, cannot be contradicted by 
 evidence that there was actually no regis- 
 tration in his office. Rock Creek v. Strong, 
 96 U. S. 271. 
 
 Estoppel to set up irregularities in 
 issue of bonds by reason of the subse- 
 quent payment of interest. Supervisors v. 
 Schenck, 5 Wall. 772 ; compare Marsh v. 
 Fulton Co., 10 Wall. 676. 
 
 Estoppel by retaining proceeds of bonds. 
 Pendleton County v. Amy, 18 Wall. 297, 
 1871. 
 
§ 524] CONtEACTS. 511 
 
 their determination of a matter in pai» which they are authorized 
 to decide wUl, in favor of the bondholder for value, bind the 
 corporation.^ 
 
 § 524. " This," says Mr. Justice Strong, referring to the lan- 
 guage of the author in the last preceding section, "is a very 
 cautious statement of the doctrine " of the Supreme Court. And 
 he adds, " It may be re-stated in a slightly different form. Where 
 legislative authority has been given to a municipality, or to its 
 ofBcers, 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 enactment 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 in 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 appointed tribunal. In Bissell v. Jeffersonville, it 
 appeared that the common council of the city were 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 legal voters had petitioned for it, and au- 
 thorized 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 similar ruling was made in Van 
 Hostrup V. Madison City, and in Mercer County v. Hacket. The 
 same principle has recently been asserted in this court, after very 
 grave consideration, and it must be considered as settled. In 
 
 1 The language in this section stands as judgment of the Supreme Court of the 
 in the last edition, but it must now be re- United States, referred to in section 524. 
 garded as authoritatively qualified by the 
 
512 MUNICIPAL CQEPOEATIONS. [OH. XIV. 
 
 St. Joseph Township v. Rogers, it is stated thus: ' Power to issue 
 bonds to aid in the construction of a railroad is frequently con- 
 ferred 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 such regu- 
 lations and pursuant to such conditions and qualifications, proof 
 that any or all 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 qualifi- 
 cation, which it is alleged was not fulfilled.' There is nothing 
 in the case of Marsh v. Fulton County 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 pre- 
 cedent 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 necessity 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 County would fail. 
 There the subscription was for the stock of a different corporation 
 from that for which the people had voted." ^ 
 
 1 Townof Colomai).Eaves,92U.S.484. "I dissent from the opinion of the 
 In this case, legislative authority was court in this case, so far as it may be con- 
 given to the town to make the snbsorip- strued to reaflSrm the first point asserted 
 tion and issue the bonds on the previous in tlie case of Knox County v. Aspinwall, 
 sanction of a popular vote, to be ascer- to wit, that the mere execution of a bond 
 tained, as the court construed the enact- by officers charged with the duty of ascer- 
 ment, by the ofScers of the town, who taining whether a condition precedent has 
 were empowered to execute the bonds, been performed is conclusive proof of its 
 fhe bonds were executed in due form by performance. If, when the law requires 
 the proper officers, and duly registered a vote of tax-payers before bonds can be 
 with the auditor of state, and contained issued, the supervisor of a township, or 
 the recital that they " are issued under and the judge of probate of a county, or other 
 b;/ virtue of the act incorporating the railroad officer or magistrate, is the officer desig- 
 company," approved March 24, 1869, nated to ascertain whether such vote lias 
 " and in accordance with the vote of the elect- been given, and is also the proper officer 
 ors of said township of Coloma, at a regular to execute and who does execute the 
 election held July 28, 1869, in accordance 'bonds ; and if the bonds tliemselves con- 
 with said law." tain a statement or recital that such vote 
 The scope and effect of the doctrine of has. been given, then the bona Jide pur- 
 the court are illustrated by the following chaser of the bonds need go back no fur- 
 brief separate opinion in the case, given ther. He has a right to rely on the 
 by Mr. Justice Bradley, who says : — statement as a determination of the ques- 
 
§ 525.] 
 
 CONTRACTS. 
 
 5r3 
 
 § 525. Estoppel hy Recital. — Failure to give Notice of Election, 
 or Notice for the Required Time. — As showing the application and 
 effect of the doctrine stated in the preceding sections as to compli- 
 
 tion. But a mere execution and issue of 
 the bonds witliout such recital is not, in 
 my judgment, conclusive. It 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 
 subject, and I do not think that the con- 
 trary has ever been decided by this court. 
 There have been various dicta to the 
 contrary, but the cases, wlien 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 Winnebago, 16 Wall. 6. In 
 the case now under consideration, there 
 is a sufficient recital in the bond to show 
 that the proper election was held and the 
 proper vote given ; and the bond was exe- 
 cuted by the officers wliose duty it was 
 to ascertain these facts. On this grpund, 
 and this alone, I concur in the judgment 
 of the court." 
 
 In the same case Mr. Justice Strong, in 
 the main opinion, after resting the judg- 
 ment on the principle stated in the text, 
 makes this reference to tlie case of Knox 
 County V. Aspinwall : — 
 
 " Indeed, some of our decisions have 
 gone farther. In the leading case of 
 Knox County i;. Aspinwall, 21 How. 644, 
 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 assumption by the purchaser that 
 the conditions on which the county (in 
 that case) was authorized to issue tliem 
 had been comphed with, and it was said 
 the purchaser was not bound to look far- 
 ther for evidence of such compliance, 
 though the recital did not affirm it. This 
 position was supported by reference to 
 the Royal British Bank i;. Turquand, 
 6 Kills & Blackburn, 827, a case in the 
 Exchequer Cliamber whicli fully sustains 
 it, and the decision in which was con- 
 curred in by all the judges. This posi- 
 tion taken in Knox County v. Aspinwall 
 VOL. I. 33 
 
 has been more than once reaffirmed in 
 tills court. It was in IVIoran v. Miami 
 County, 2 Black, 732; in Mercer County 
 V. Hacket, 1 Wall. 83 ; in Supervisors v. 
 Selienck, 5 Wall. 784, and in Meyer v. 
 Muscatine, 1 Wall. 384. It has never 
 been overruled, and whatever doubts 
 may have been suggested respecting its 
 correctness to the full extent to which it 
 has sometimes been announced, there 
 should be no doubt of the entire correct- 
 ness of the other rule asserted in Knox 
 County V. Aspinwall. That, we think, 
 has been so firmly seated In reason and 
 authority tliat it cannot be shaken." 
 
 In further explanation we may remark 
 that the recital in Knox County ts. Aspin- 
 wall was in these words : " This bond is 
 issued in part payment of a subscription of 
 ■1200,000, by the said Knox County, to the 
 capital stock, etc., by order of the board 
 of commissioners in pursuance of the third 
 section of the act, etc., approved January 
 15, 1849." The act required the previous 
 sanction of a majority of the -qualified 
 voters of the county, and the defence was 
 failure to comply with the statute in re- 
 spect to the notices for the election. And 
 the proposition which has been doubted 
 elsewhere, and from which Mr. Justice 
 Bradley dissents, is contained in the fol- 
 lowing sentence, extracted from the opin- 
 ion of Mr. Justice Nelson in that case, 
 who, after quoting the foregoing recital 
 in the bond (which it will be seen does 
 not expressly state that there was an elec- 
 tion), says: "The purchaser was not 
 bound to look further for evidence of a 
 compliance with the conditions to the 
 grant of the power." In Moran v. Miami 
 County, 2 Black, 722, 732, the court say : 
 " We tliink and adjudge that the recitals 
 in the bonds are conclusive [of compliance 
 with the precedent condition], constitut- 
 ing an estoppel in pais upon the defend- 
 ants in this suit." Other cases to the 
 same effect in the Supreme Court will be 
 adverted to as we proceed. In Marcy v. 
 Oswego Township, 92 U. S. 638, 1875, the 
 doctrine as contained in the text was re- 
 asserted almost in the same language. 
 
514 MUNICIPAL COKPOBATIONS. [CH. XlV. 
 
 ance with conditions precedent — particularly in respect of the 
 very common one of a previous election or the assent of a given 
 proportion of the tax-payers — a brief reference may be made 
 to some of the most recent decisions of the Supreme Court, in 
 which it is evident that the whole subject again underwent thor- 
 ough consideration. In Humboldt Township v. Long, bonds 
 issued under legislative authority, requiring a popular vote, at an 
 election of which thirty days' notice was to be given, and which 
 contained a recital (made by the officers having the power, as 
 ■construed, to determine whether the conditions of fact had been 
 complied with and to issue the bonds) to the effect that they 
 were " issued in pursuance of and in accordance with the act of 
 the legislature," stating it, were held not invalid in the hands of 
 a holder for value, before due, without notice, because the election 
 was held within less than thirty days after the date of the order 
 providing for it.^ 
 
 The principle adopted, and the reasoning of the court by which 
 it is sustained, lead, it would seem, logicallj^ to the conclusion 
 (although there is, perhaps, no case in the Supreme Court where 
 the facts required a direct decision of the point) that where the 
 :power to issue the bonds is given upon the condition of a previous 
 
 ' Humboldt Township v. Long, 92 U. confer the power. Whether that step 
 S. 642. The court thus states the ground had been taken or not, and whether the 
 of its decision : " The board of county election had been regularly conducted, 
 commissioners, who caused tlie bonds to with suflScient notice, and whether the 
 be issued, were constituted the authority requisite majority of votes had been cast 
 to determine whether the conditions of in favor of a subscription, and conse- 
 fact, made by the statute precedent to quent bond issue, were questions wliich 
 the exercise of the authority granted to the law submitted to the board of county 
 execute and issue the bonds, had been commissioners and which it was necessary 
 performed, and their recital in the bonds for them to answer before they could act. 
 issued by them is conclusive in a suit In the present case the board passed upon 
 against tlie township brouglit by a bona them and issued the bonds, asserting by 
 Jide holder." (So held in Marcy v. Town- the recitals that they were issued ' in pur- 
 ship of Oswego, 92 U. S. 638.) " In so suanee of and in accordance with the act 
 ruling we but decided what had often be- of the legislature.' Thus the plaintiff 
 fore been decided, and what ought to be below took them, without knowledge of 
 regarded as a iixed rule. Applying it to any Irregularities in the process through 
 tlie solution of tlie question now before which the legislative authority was exer- 
 ns, it is plain that the bonds are not in- cised, and relying upon the assurance 
 valid because all tlie notice of the popular given by the board that the bonds had 
 cl ection was not given which the legisla- been issued in accordance w ith the law. 
 tive act directed. The election was a In his hands, therefore, they are valid 
 step in the process of execution of the instruments." See Town of Elmwood 
 power granted to issue bonds in payment v. Marcy, 92 U. S. 289, 1875 ; St. Jo- 
 Of a municipal subscription to the stock seph Township v. Rogers, 16 Wall. 644, 
 of a railroad company. It did not itself 1872. 
 
§ 525.] CONTRACTS. 515 
 
 vote in favor of the proposition that the public or municipal 
 oflScers can, where no vote whatever has been taken, or the proposi- 
 tion has been voted down, bind the county or municipality by the 
 false recitals in such unauthorized bonds, provided they are issued 
 by the officers entrusted by the statute with the power. Under 
 this doctrine, limitations upon the exercise of the power intended 
 to prevent fraud, and to secure a compliance with the conditions 
 upon which the bonds are authorized, are of little practical value, 
 and generally prove illusory. 
 
 So, in Coloma v. Eaves, supra, — a case from Illinois, — the 
 local oificers of the town were empowered by the statute to issue 
 bonds, provided a majority of the voters of the town voted for 
 the subscription ; which fact, the statute provided, shall appear 
 by the statement of the town clerk, filed with the county clerk, 
 showing the vote given, the amount voted, and the rate of inter- 
 est : it was held in favor of a bona fide owner of the bonds issued 
 containing a recital of an election, that such an owner need not 
 look beyond the recitals made in the bonds by the local officers 
 authorized to issue them for evidence of the existence of the facts 
 in pais thus recited, the decision and declaration of that decision 
 in the bonds being conclusive upon the town. The court said: 
 " After all, this is not an open question, as between a bona fide 
 holder of the bonds and the township, whether all the prerequi- 
 sites to their issue have been complied with. Apart from and 
 beyond the reasonable presumption that the officers of the law, 
 the township officers, discharged their duty, the matter has 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 
 contingency 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 bona fide purchaser is not 
 bound to look for 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 condi-> 
 tlon to decide for himself." 
 
616 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIV. 
 
 § 526. Condition Precedent. — Onus Probandi. — Estoppel by 
 Recital. — In another important case, it appeared that legis- 
 lative authority was given to certain officers of a tovyn to borrov? 
 money to aid the building of a railway, and to issue bonds there- 
 for, provided the written assent of two thirds of the resident 
 tax-payers should be previously obtained by said town officers 
 and filed in the county clerk's office, with an affidavit of such 
 officers verifying such assent. A list of assenting tax-payers was 
 filed in the clerk's office, and also the required affidavit ; bonds 
 were issued, and were in the hands of a holder for value : on the 
 trial the question arose whether the plaintiff must prove the sig- 
 natures to the assent to be genuine, and it was held by the Su- 
 preme Court of the United States, denying Starin v. Genoa, and 
 Gould V. Sterling, cited in the note, that no such onus rested on 
 him ; that the town officers were created a tribunal to determine 
 whether two thirds of the resident tax-payers had assented, and 
 that on their decision the purchaser might rely, without looking 
 further ; and that the town was concluded, in favor of an inno- 
 cent holder, from denying that the condition precedent had been 
 performed.^ 
 
 1 Town of Venice v. Murdock, 92 U. 
 S. Sup. Court, 494, 1875 ; Rock Creek o. 
 Strong, 96 U. S. 271. In the People v. 
 Mead, 36 N. Y. 224, 1867, the decision in 
 Starin v. Genoa and Gould v. Sterling 
 was adhered to by the Court of Appeals 
 of New York, although the court admitted 
 it was contrary to the decisions of the 
 Supreme Court of the United States as 
 to the evidence of the assent of the 
 tax-payers. In Venice w. Murdock, su/wa, 
 Mr. Justice Strong, speaking of Starin 
 V. Genoa and Gould v. Sterling, says ; 
 " These decisions are in conflict with 
 the rulings of this court in Bissell v. 
 Jeffersonville, 24 How. 287 ; Knox 
 County V. Aspinwall, 21 How. 639; 
 Mercer County v. Hackett, 1 Wall. 83, 
 and other cases which we have cited. 
 They are in conflict also with decisions 
 In other state courts. Society for Sav- 
 ings V. New London, 29 Conn. 174 ; Kail- 
 road Company v. Evansville, 15 Ind. 395 ; 
 Commissioners v. Nichols, 14 Ohio St. 
 260. We have carefully considered the 
 reasons given for the judgments in the 
 New York cases, without being convinced 
 
 by them. They ignore the paramount 
 purpose for which the bonds were author- 
 ized by the legislature, and they treat the 
 written assent of the taxables as the 
 authority to the township officers, when, 
 in fact, the power was given by the legis- 
 lature, and it was only left to the town to 
 determine by the action of two thirds of 
 the resident taxables whether the super- 
 visors and commissioners might act under 
 the power. In Gould v. Sterling the 
 legislative act required no affidavit to be 
 filed with a statement of the assenting tax- 
 payers, and in Starin i;. Genoa the affi- 
 davit filed was regarded as merely verify- 
 ing that the persons whose names ap- 
 peared on the assents comprised two 
 thirds of all the resident tax-payers. But 
 it is obvious that if no more than this was 
 meant by the required affidavit, it was 
 wholly useless, for the assessment rolls 
 of the township would have shown as 
 much." The case, Venice ». Murdock, 
 is so important in overturning, so far 
 as the federal courts are concerned, 
 the judgment of the Court of Appeals 
 of New York, and as respects the propo- 
 
§ 527.] 
 
 CONTRACTS. 
 
 517 
 
 § 527. Estoppel by Recital to set up Defence of an Over-issue 
 contrary to the Enabling Act. — Among the limitations, or ati 
 tempted limitations, upon the exercise of the power to issue 
 bonds, one not unfrequently provided is, that the amount voted 
 or issued shall not exceed a specified proportion of the taxable 
 property of the municipality, or such a sum as will require a 
 greater levy of taxes than a specified rate on the taxable property 
 to pay the annual interest on the bonds. The effect of a disre- 
 gard of this limitation by the ofiicers entrusted by the statute 
 with the exercise of the power came, for the first time, before the 
 Supreme Court at the October term, 1875, in a case arising undes 
 the legislation of Kansas.^ 
 
 Bition it establishes, that we reproduce 
 the additional reasons given by the 
 Supreme Court in support of its judg- 
 ment. " It is very obvious," says Strang,' 
 J., " that if the act of the legislature 
 which authorized an issue of bonds in aid 
 of the construction of the railroad on the 
 written assent of two thirds of the res- 
 ident tax-payers of the town intended 
 that the liolder of the bonds should be 
 under obligation to prove by parol evi- 
 dence that each case of the two hundred 
 and fifty-nine names signed to the written 
 assent was a genuine signature of the 
 person wlio bore the name, the proffered 
 aid to the railroad company was a delu- 
 sion. No sane person would have bought 
 a bond with such an obligation resting 
 upon him whenever he called for pay- 
 ment of principal or interest. If such 
 was the duty of the holder, it was always 
 his duty. It could not be performed 
 once for all. The bonds retained in the 
 hands of the company would have been 
 no help In the construction of the road. 
 It was only because they could be sold 
 that they were valuable. Only thus 
 could they be applied to the construction. 
 Yet it is not to be doubted the legislature 
 had in view and intended to give sub- 
 stantial aid to the railroad company, if a 
 sufficient number of the tax-payers as- 
 sented. They must have contemplated 
 that the bonds would be offered for sale, 
 and it is not to be believed they intended 
 to impose such a clog upon their salable- 
 ness as would rest upon it if every person 
 proposing to purchase was required to 
 
 inquire of each one whose name ap- 
 peared to the assent whether he had in 
 fact signed it." 
 
 1 Marcy v. Township of Oswego, 92 
 U. S. 637. The legislative provision is 
 essential to an accurate understanding of 
 the judgment and view of the court. The 
 act of the legislature, under which the 
 bonds purported to have been issued, was 
 passed February 25, 1870. Laws of Kan. 
 1870, p. 189. The first section enacted 
 that whenever fifty of the qualified 
 voters, being freeholders, of any muni^ 
 cipal township in any county should 
 petition the board of county commis- 
 sioners of such county to submit to the 
 qualified voters of the township a propo- 
 sition to take stock in the name of such 
 township, in any railroad proposed to be 
 constructed into or through the township, 
 designating in the petition, among other 
 things, the amount of stock proposed to 
 be taken, it should be the duty of the^ 
 board to cause an election to be held in 
 the township to determine whether such 
 subscription should be made ; provided 
 that the amount of bonds voted by any 
 township should not be above such a sum 
 as would require a levy of more than one 
 per cent per annum on the taxable 
 property of such township to pay the' 
 yearly interest. The second section di- 
 rected the board of county commissioners 
 to make an order for holding the election 
 contemplated in the preceding section,' 
 and to specify therein the amount of 
 stock proposed to be subscribed, and also 
 to prescribe the form of the ballots to be 
 
518 
 
 MUNICIPAL CORPORATIONS. 
 
 [CH. XIV; 
 
 § 528. In the last case the bonds were duly executed, and con- 
 tained a recital of the act, and that they were issued " in virtue 
 of and in accordance " with it, and " in pursuance of and in accord- 
 ance with the vote of three fifths of the legal voters of the town- 
 ship, at an election to be held on " a specified day. The plaintiff 
 was a bona fide holder for value, without notice. The defence 
 was that they were voted and issued at one time, as one act, and 
 in payment of one subscription in excess of the amount authorized 
 by the statute. The circuit justicet)f the United States for the 
 circuit distinguished the case from Knox County v. Aspinwall, 
 before referred to, on the ground that the statute imposing the 
 
 used. The fifth section enacted that if 
 three fifths of the electors voting at such 
 election should vote for the subscription, 
 the board of county commissioners should 
 order the county clerk to make it in the 
 name of the township, and should cause 
 such bonds as might be required by the 
 terms of the vote and subscription to be 
 issued in the name of such township, to 
 be signed by the chairman of the board, 
 and attested by the clerk under the seal 
 of the county. 
 
 In Marcy v. Township of Oswego, 
 supra, bonds to which the coupons were 
 attached contained the following recital : 
 " This bond is executed and issued by 
 virtue of, and in accordance with, an act 
 of the legislature of the said state of 
 Kansas, entitled ' An act to enable mu- 
 nicipal townships to subscribe for stock ' 
 in any railroad, and to provide for the 
 payment of the same, approved February 
 25, 1870,' and in pursuance of and in ac- 
 cordance with the vote of three fifths of 
 the legal voters of said township of 
 Oswego, at a special election duly held 
 on the 17th day of May, A. D. 1870." 
 Each bond also declared that the board 
 of county commissioners of the county of 
 Labette, of which county the township 
 of Oswego is a part, had caused it to be 
 issued in the name and in behalf of said 
 township, and to be signed by the chair- 
 man of the said board of county commis- 
 sioners and attested by the county clerk 
 of the said county, under its seal. Ac- 
 cordingly, each bond was thus signed, 
 attested, and sealed. The bonds were 
 registered in the office of the state au- 
 ditor, and certified by him in accordance 
 
 with the provisions of an act of the legis- 
 lature. His certificate on the back of 
 each bond declared that it had been reg- 
 ularly and legally issued ; that the sig- 
 natures thereto were genuine, and that it 
 had been duly registered in accordance 
 with the act of the legislature. 
 
 The defence to the bonds was that 
 there had been an over-issue, contrary to 
 the statute. The bond, it will be ob- 
 served, contains no statement on this 
 point, but it was held by the Supreme 
 Court that the recital in the bonds 
 estopped the township from making this 
 defence against a bonajide holder. 
 
 The case of Marcy v. Township of 
 Oswego was cited and approved in Hum- 
 boldt Township v. Long, 92 U. S. 642, the 
 court observing : — 
 
 " There is no essential difference be- 
 tween this case and that. The assessment 
 rolls of the township may have been 
 proper evidence for the consideration of 
 the board of county commissioners when 
 they were inquiring what the value of 
 the taxable property of the township was, 
 but the bonds are not invalid in the hands 
 of a. bona fide holder by reason of their 
 having been voted and issued in excess of 
 the statutory limit, as shown by the rolls. 
 Whatever may be the right of the town- 
 ship, as against those who issued the 
 bonds, it cannot be set up against a bona 
 fide holder of the bonds that the amount 
 issued was too large, in the face of the 
 decision of the board, and their recital 
 that the bonds were issued pursuant to 
 and in accordance with the act of 1870." 
 See supra, sec. 525, and note. 
 
§ 528.] CONTKACTS. 519l 
 
 limitation, the order for the election, the proposition submitted, 
 the order for the issue of the bonds, and the latest assessment roll' 
 were not, properly, matters in pais, but were all public, all open, 
 and all accessible, and all of record, and if consulted by the pur- 
 chaser would have shown the bonds to have been voted and 
 issued in violation of the express limitation upon the power con- 
 tained in the statute. But the judgment of the circuit court was 
 reversed, three judges dissenting, and the defence held unavail- 
 ing. The case was considered to fall within the principle of the 
 previous decisions. Mr. Justice Strong, speaking for the court, 
 after stating the facts as we have given them, observed : " In 
 view of these facts, and of the decisions heretofore made by this 
 court, the question cannot be considered an open one. "We 
 have recently reviewed the subject in the case of The Town of 
 Coloma V. Eaves (^suprd), and reasserted what had been decided 
 before, namely, that where legislative authority has been given 
 to a municipality to subscribe for the stock of a railroad company, 
 and to issue municipal bonds in payment of the subscription, on 
 the happening of some precedent contingency of fact, and where 
 it may be gathered from the legislative enactment that the offi- 
 cers or persons designated to execute the bonds were invested 
 with power to decide whether the contingency had happened, 
 or whether the fact existed which was a necessarj' condition pre- 
 cedent to any subscription or issue of the bonds, their decision 
 is final in a suit by the bona fide holder of the bonds against the 
 municipality, and a recital in the bonds that the requirements of 
 the legislative act have been complied with is conclusive. And 
 this is more emphatically true when the fact is one peculiarly 
 within the knowledge of the persons to whom the power to issue 
 the bonds has been conditionally granted." ^ 
 
 1 In the dissenting opinion of Mr. Jub- ness, but I do know that in some of the 
 
 tice il/i7/er (with whom concurred Davis cases tried before me last summer in i^an- 
 
 and Field, JJ.), the view of the court is sas it was shown that the first and only 
 
 strongly combated. A few extracts will issue of such bonds exceeded in amount 
 
 show the opinion of the dissentients, and the entire value of the taxable property of 
 
 bring into clearer relief the views of the the town, as shown by the tax list of the 
 
 court : — year preceding the issue. This court 
 
 " In the cases under consideration,'' holds that such a showing is no defence 
 
 says Miller, J., " this provision of the to the bonds, notwithstanding the express 
 
 statute was wholly disregarded. I am prohibition of the legislature. It is there- 
 
 not sure that the relative amount of the fore clear that, so long as this doctrine is 
 
 bonds, and of the taxable property of the upheld, it is not in the power of the legis- 
 
 towns, is given in these cases with exact- lature to authorize these corporations to 
 
620 
 
 MUNICIPAL COKPOKATIONS. 
 
 [CH. XIV. 
 
 § 529. These cases afford, perhaps, a more striking illustration 
 than any previously decided by that court, that the purchaser 
 
 issue bonds under any special circum- 
 stances, or with any limitation in the use 
 of the power, which may not be disre- 
 garded with impunity. It may be the 
 wisest policy to prevent the issue of such 
 bonds altogether. But it is not for this 
 court to dictate a policy for tlie states on 
 that subject. The result of the decision 
 is a most extraordinary one. It stands 
 alone in the construction of powers spe- 
 cifically granted, whether the source of 
 the power be a state constitution, an act 
 of the legislature, a resolution of a corpor- 
 ate body, or a written authority given by 
 
 an individual No such principle 
 
 has ever been applied by this court, or by 
 any other court, to a state, to the United 
 States, to private corporations or to indi- 
 viduals. I challenge the production of a 
 case in which it has been so applied. In 
 the Floyd Acceptance Cases, 7 Wall. 666, 
 in which the secretary of war had ac- 
 cepted time drafts drawn on him by a 
 contractor, which, being negotiable, came 
 into the hands of htmafide purchasers be- 
 fore 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 individ- 
 ual cannot be so limited as to make any 
 one dealing with the agent bound by the 
 limitation, or that the agent's construc- 
 tion of his power bound the principal. 
 Nor has it ever been contended that an 
 ofScer of a private corporation can, by 
 exceeding his authority, when that au- 
 thority is express, is open and notorious, 
 bind the corporation which he professes 
 to represent. The simplicity of the de- 
 vice by which this doctrine is upheld as 
 to municipal bonds is worthy the admira- 
 tion of all who wish to profit by the 
 frauds of municipal officers. It is that, 
 whenever a condition or limitation is im- 
 posed upon the power of those officers in 
 issuing bonds, they are the sole and final 
 judges of the extent of those powers. If 
 they decide to issue them, the law pre- 
 sumes that the conditions on which their 
 powers depended existed, or that the lim- 
 itation upon the exercise of the power has 
 
 been complied with ; and especially and 
 particularly if they make a faUe recital of 
 the fact on which the power depends in 
 the paper they issue, this 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 pur- 
 chasl^ is ignorant of the falsehood. But 
 in the Floyd Acceptance Cases, this court 
 held, and it was necessary to hold so 
 there, that the inquiry into the authority 
 by which negotiable paper wns issued 
 was just the same as if it were not nego- 
 tiable, and that if no such authority ex- 
 isted, it could not be aided by giving the 
 paper that form. In county bonds it 
 seems to be otherwise. In that case the 
 court held that the party 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 con- 
 tradicted, 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 de- 
 pends in these cases why any purchaser 
 should not take notice of its existence be- 
 fore he buys. The 'bonds in this 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 taxation of 
 the year before the bonds were issued, 
 is of record both in that town and in the 
 office of the clerk of the county in which 
 the town is located. A purchaser had 
 but to write to the township clerk or the 
 county clerk to know precisely the 
 amount of the issue of bonds and the 
 value of the taxable property within the 
 township. In the matter of a power de- 
 pending 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 assess- 
 
§ 530.] CONTRACTS. 521 
 
 may implicitly rely upon the recitals in the bonds made by the 
 proper officers, that the authority to issue them has arisen, and 
 that he is under no obligation to consult the records of the muni- 
 cipality, and is not charged with constructive notice of their con- 
 tents ; and this, too, it will be observed, where the recital in the 
 bond was general and not specific in its nature, and where the 
 facts which would have shown the issue of the bonds to have 
 been illegal were matters appearing upon the public records of 
 the township. 
 
 § 530. Estoppel hy Recital of Matter of Fact, e. g.. Date of Sub- 
 scription. — The effect of recitals in the bonds, and of statements 
 in the records of the county which issued the bonds, is considered 
 in The Town of Concord v. Portsmouth Savings Bank.^ A con- 
 trolling question in the case was whether the power to subscribe 
 for stock and issue bonds therefor, given by the act March 26, 
 1869, was annulled by the new constitution of the state (which 
 took effect July 2, 1870) before the subscription was made or a 
 valid contract to subscribe was completed. The court held that, 
 in point of fact a legal and binding subscription was made, or 
 agreed to be made, in December, 1869, and hence the defence of 
 want of legal power failed ; and it then proceeded to view the 
 case as affected by estoppel, the plaintiff being a bona fide holder 
 
 ment roll. But in favor of a purchaser open violation of law issues these bonds, 
 
 of municipal bonds, all this is to be dis- the owner of property lying within the 
 
 regarded ; and a debt contracted without corporation must pay them, though he 
 
 authority and in violation of express stat- had no part whatever in their issue and 
 
 ute is to be collected out of the property no power to prevent it. This latter is 
 
 of the helpless man who owns any in the true view of the matter. As the 
 
 that district. I say ' helpless ' advisedly, corporation could only exercise such 
 
 because these are not his agents. They power as the law conferred, the issuing 
 
 are the oflScers of the law, appointed or of the bonds was not the act of the cor- 
 
 elected without his consent, acting con- poration. It is a false assumption to say 
 
 trary, perhaps, to his wishes. Surely if that the corporation put them on the 
 
 the acts of any class of officers should be market. If one of two innocent persons 
 
 valid only when done in conformity to must suffer for the unauthorized act of 
 
 law, it is those who manage the affairs the townsliip or county officers, it is clear 
 
 of towns, counties, and villages, in creat- that lie wlio could, before parting with 
 
 ing debts which not they, but the his money, have easily ascertained that 
 
 property-owners, must pay. ... It is they were unauthorized, should lose, 
 
 easy to say, and looks plausible when rather than the property-holder, who 
 
 said, that if municipal corporations put might not know anything of the matter, 
 
 bonds on the market, they must pay or if lie did, had no power to prevent the 
 
 them when they become due. But it is wrong." 
 
 another thing to say that when an officer i Concord v. Portsmouth Savings 
 
 created by the law exceeds the authority Bank, 92 U. S. 625, 1875. 
 wliich tliat law confers upon him, and in 
 
522 
 
 MUNICIPAL COBPOEATIONS. 
 
 [CH. 
 
 XIV. 
 
 for value without notice of any defence. The court held that a 
 recital in the bonds that the subscription was made in December, 
 1869, being the recital of a matter of fact, and a fact, too, pecu- 
 liarly, if not exclusively^ within the knowledge of the board of 
 supervisors, estopped the county to set up that the subscription 
 was not made until after July 2, 1870, when their authority to 
 subscribe had expired.^ 
 
 1 Concord v. Portsmouth Savings 
 Bank, 92 U. S. 625, 1875. The point is 
 so material ttiat we subjoin the opinion 
 delivered by Strong, J., on this point. 
 He says : " There is, however, another 
 consideration tliat is wortliy of notice. 
 Tlie findings of tlie court are that the 
 plaintiff below is a purchaser of the bonds 
 for a valuable consideration, having pur- 
 chased them before their maturity and 
 without notice of any defence. They 
 were executed by tlie president of the 
 board of supervisors and the county clerk. 
 They recite that they are issued by the 
 county of Moultrie, ' in pursuance of the 
 subscription of the sum of eighty thou- 
 sand dollars to the capital stock of the 
 Decatur, Sullivan, and Mattoon Kailroad 
 Company, made by the board of super- 
 visors of said county of Moultrie, in De- 
 cember, A. D. 1869, in conformity to the pro- 
 visions of an act of the general assembly 
 of the state of Illinois, approved March 
 26, A. D. 1869.' Now, if it be supposed 
 that the purchaser of bonds with such 
 recitals was bound to look further and 
 inquire what was the authority for the 
 issue, where was he to look? Had he 
 looked to the act of the general assembly 
 of March 26, 1869, he would have found 
 plenary authority for a stock subscrip- 
 tion and for the issue of bonds in pay- 
 ment thereof. If he was bound to know 
 that the constitutional provision termi- 
 nated that authority after July 2, 1870, 
 he knew that any subscription made 
 before that time continued binding not- 
 withstanding the constitution, and that 
 bonds issued in payment of it were, there- 
 fore, lawful. If, then, he had inquired 
 whether a subscription had been made 
 before July 2, 1870, at the only place 
 where inquiry should have been made, 
 namely, at the records of the board, he 
 would have found an order to subscribe, 
 
 equjjiralent to a subscription made, in 
 December, 1869, corresponding with the 
 assertions of tlie recitals, and declared 
 by them to have been a subscription. 
 He could have made inquiry nowhere 
 else with any prospect of learning the 
 truth. Every step iie could have taken 
 assured him that the recitals were true. 
 How, then, can the county be permitted 
 to set up against a bona fide holder of the 
 bonds that the authority to make a 
 subscription, with all its legitimate conse- 
 quences, had expired before the subscrip- 
 tion was made, in the face of the recitals 
 and of the county records ? Whether it 
 had expired was a matter of fact, not of 
 law, and it was peculiarly, if not exclu- 
 sively, within the knowledge of the board 
 pf supervisors. After having assured a 
 purchaser that their subscription was 
 made in December, 1869, wlien tliey had 
 power to make it, it would be tolerating 
 a fraud to permit the county to set up, 
 when called upon for payment, tliat it 
 was not made until after July 2, 1870, 
 when their authority expired." 
 
 Purchaser not affected by statements 
 in county records contrary to recitals in 
 the bonds issued by the county. Nico- 
 lay V. St. Clair County, 3 Dillon C. C. R. 
 163, 1874. In AUer v. Cameron, lb. 198, 
 the df fendant town was held estopped to 
 set up against a holder of its bonds for 
 value that it was not legally incorporated. 
 
 Effect of recital by authorized officers. 
 See also Chambers County v. Clews, 21 
 Wall. 317, 821; Grand Chute v. Win- 
 egar, 15 Wall. 355 ; Lynde v. County of 
 Winnebago, 16 Wall. 6 ; Kailroad Co. v. 
 Otoe County, 16 Wall. 667; Mercer 
 County V. Hacket, 1 Wall. 83 ; Woods v. 
 Lawrence County, 1 Black, 386 ; Gelpecke 
 1). Dubuque, 1 Wall. 175 ; Meyer v. Mus- 
 catine, lb. 384 ; Kennicott v. Supervisors, 
 16 WaU. 464. 
 
§ 532.] CONTRACTS. 523 
 
 § 631. (419) A correct view of this subject would seem to be 
 this : Officers are the agents of the corporate body ; and the ordi- 
 nary rules and principles of the law of agency are applicable to 
 their acts. Their unauthorized acts are not binding upon the 
 corporate body of which they are the public agents. Ordinarily, 
 their unauthorized representation that they have power to do an 
 act is not binding upon the corporation ; that is, the question is 
 as to their power, in fact and in law, not what they have repre- 
 sented it to be. The only exception to this rule in addition to 
 the one hereinbefore treated of, to wit, where it is the sole province 
 of the officers who issued the bonds to decide whether conditions 
 precedent have been complied with, is >vhere both parties have 
 not equal means of knowledge as to the extent and scope of their 
 powers, and where the particular character of their commission 
 and authority is, from its nature and circumstances, peculiarly 
 known to the officer or agent ; in which case the principal will or 
 may be bopnd by the false representations of the agent respecting 
 his authority and its extent and scope ; but where the authority 
 to act is solely conferred by statute, which, in effect, is the letter 
 of attorney of the officer, all persons must, at their peril, see that 
 the act of the agent on which he relies is within the power under 
 which the agent acts ; and this doctrine is recognized by the 
 Supreme Court of the United Slates in some of its judgments.^ 
 Accordingly, bonds issued in violation of an express statute or 
 constitution are void, though in the hands of innocent holders 
 for value.^ 
 
 § 632. (420) So in a subsequent case, similar in character, the 
 common council of a city were, by virtue of various statutes, 
 authorized to subscribe for stock in a railroad compan}-, and to 
 issue bonds in payment therefor on the petition of three fourths of 
 
 1 The Floyd Acceptances, 7 Wall. 666, of Colnmbus, 21 How. 356, 1858, is a 
 
 1868 ; Marsh v. Fulton County, 10 Wall, very striking illustration of the general 
 
 676, 1870. See, also, Clark i). Des principle that a corporate officer cannot 
 
 Moines, 19 Iowa, 199, 210, 1865 ; Tread- bind the corporation by his unauthorized 
 
 well V. Commissioners, 11 Ohio ^t. 183, acts or representations concerning the 
 
 1800, reviewing and criticising Knox authority of himself or others. De Voss 
 
 County V. Aspinwall, 21 How. 539. See, v. Richmond, 18 Gratt. (Va.) 339, 1868; 
 
 also, Gould V. Sterling (action on bonds), s. c. 7 Am. Law Reg. (N. S.) 589. 
 23 N. Y. 464; s. c. 1 Am. Law Reg. (N. « Aspinwall v. County of Daviess, 22 
 
 S.)290, and note of Prof. Z)m«5'A<,- Starin How. 364; Marsh v. Fulton County, 
 
 V. Genoa, 23 N. Y. 452 ; People v. Mead, supra ; Moore v. Mayor, 73 N. Y. 288, ap- 
 
 36 N. Y. 224. United States v. City Bank proving text. 
 
524 
 
 MUNICIPAL COEPOEATIQNS. 
 
 [CH. XIV. 
 
 the legal voters of the city. Before the issue of the bonds, the 
 council decided that three fourths of the citizens had petitioned, 
 and the bonds themselves thus recited. The Supreme Court of 
 the United States held that the council was the tribunal to decide 
 whether the requisite number had petitioned ; that it was con- 
 templated that this question, which was one of fact, should be 
 ascertained and conclusively settled prior to the issue of the 
 bonds ; and that when sued upon the bonds by innocent holders 
 for value, parol testimony was inadi«ssible to show that the peti- 
 tioners did not constitute three fourths of the legal voters of the 
 city.i 
 
 1 Moran v. Miami County, 2 Black, 
 722, 724, 1862 ; Bissell v. Jeflfersonville, 24 
 How. (U. S.) 287, 1860, approving Knox 
 County V. Aspinwall, 21 How. 539 ; s. p. 
 Bailroad Co. v. Evansville, 15 Ind. 395, 
 1860; Supervisors o. Sctienck, 5 Wall. 
 772, 1866; Rogers v. Burlington, 3 Wall. 
 654 ; Cincinnati v. Morgan, lb. 275 ; Mer- 
 cer County 0. Hacket, 1 lb. 83 ; Meyer v. 
 Muscatine, lb. 385, 393, per Swayne, J. ; 
 Bissell u. Jefferson ville, 24 How. 287; 
 Gelpecke v. Dubuque, 1 Wall. 175, 203 ; 
 Pendleton Co. v. Amy, 13 Wall. 297, 
 1871 ; St. Joseph Township v. Rogers, 16 
 Wall. 644, 1872. In the case last cited it 
 was insisted that the bonds were invalid 
 for want of the required vote. One of the 
 answers of the court to this objection was 
 that " the act of the legislature made it 
 the duty of the supervisor who executed 
 the bonds to determine the question 
 whether an election was held, and wheth- 
 er a majority of the votes cast were in 
 favor of the subscription, and inasmuch 
 as he passed upon that question and sub- 
 scribed for the stock, and subsequently 
 executed and delivered the bonds, it was 
 clearly too late to question their validity, 
 where it appears, as in this case, that they 
 are in the hands of an innocent holder." 
 This is clearly right, for the reason that 
 the council were the body to decide the 
 preliminary fact, and because, also, ac- 
 cording to the rule before stated, the fact 
 was one not of a nature to be ascertained 
 by purchasers in the market to whom the 
 bonds were designed to be sold. 
 
 As to proceeding preliminary to issuing of 
 bonds. Ante. sec. 163 ; Commissioners v. 
 Nichols, 14 Ohio St. 260; Atchison u. 
 
 Butcher, 3 Kan. 104, 1865 ; Mercer Coun- 
 ty ti. Hacket, 1 Wall. 83 ; Rogers v. Bur- 
 lington, 3 lb. 654 ; Moran v Miami Co., 2 
 Black, 722; Flagg v. Palmyra, 83 Mo. 
 440; Commonwealth u. Commissioners, 
 etc., 37 Pa. St. 237 ; compare Marsh v. 
 Fulton County, 10 Wall. 676, 1870; 
 Treadwell v. Commissioners, 11 Ohio St. 
 183, 1860; post, sec. 550; Pendleton Coun- 
 ty V. Amy, 13 Wall. 297 ; City of Lexing- 
 ton V. Butler, 14 Wall. 284; St. Joseph 
 Township v. Rogers, 16 Wall. 644, 1872; 
 Grand Chute v. Winegar, 5 Wall. 372, 
 1872; New Haven, etc. Railroad Co. v. 
 Chatham, 42 Conn. 465. 
 
 A city was authorized to take stock in 
 a railroad company "on the petition of 
 two thirds of the citizens, who are free- 
 holders," etc. Bonds of the city were 
 duly issued, signed by the proper officers 
 and attested by the seal of the city, and 
 on their face recited that they were issued 
 by virtue of an ordinance of the city milk- 
 ing the subscription. The minutes of the 
 city council simply stated that " the free- 
 holders of the city, with great unanimity, 
 had petitioned," etc. It was held that 
 the city council were the proper judges 
 whether or not the required number had 
 petitioned, and that the city, as against 
 bona fide holders for value, was " con- 
 cluded" by the ordinance "as to any 
 irregularities that may have existed in 
 carrying into execution the power granted 
 to subscribe the stock and issue the 
 bonds." Van Hostrup i>. Madison City, 1 
 Wall. (II. S.) 291, 1863; s. p. Meyer v. 
 Muscatine (where charter required "a 
 majority of two thirds of the votes giv- 
 en") /6. 884, 893; Aurora v. West, 22 
 
§ 533.] 
 
 CONTRACTS. 
 
 525 
 
 § 533. (421) In another case,^ the action was upon coupons 
 payable to bearer belonging to negotiable bonds issued by a 
 county in payment of stock subscribed in a railroad company. 
 By an act of assembly, the county commissioners were authorized 
 to subscribe the stock and iss-ue the bonds only upon the follow- 
 ing " restrictions, limitations, and conditions, and in no other 
 manner or way whatever:" 1. '•'•After, and not before, the 
 amount of such subscription shall have been designated, advised, 
 and recommended by a gi-and jury of the county." 2. Said 
 " bonds shall, in no case, be sold by the railroad company less 
 than par." 3. That the acceptance of this act shall be deemed 
 the acceptance of another act fixing the gauges of railroads in 
 the county of Erie. The plaintiff was a bona fide holder for 
 value, of a number of the bonds issuedby the county. To defeat 
 a recovery, the county on the trial offered to show, not that no 
 recommendation by a grand jury was ever made, but that no such 
 recommendation was made as the act required. The following 
 was the recommendation : The grand jury " would recommend 
 (omitting the words ' designate and advise ') the commission- 
 
 Ind. 88, 1864; ccmtra, People v. Mead, 36 
 N. Y. 224. 
 
 Where the act authorizing a munici- 
 pality to issue bonds was not to take ef- 
 fect until " approved by two thirds of tlie 
 electors present at a city meeting held for 
 that purpose, and a copy of its doings 
 lodged in the office of the secretary of state," 
 bona fide purchasers of such bonds are not 
 bound to loolc beyond the certificate thus 
 lodged, and are not affected by the action 
 of the city, refusing at prior meetings to 
 approve the act. Society for Savings i;. 
 New London, 29 Conn. 174, 1860. 
 
 Fraud in the election autliorizing the 
 subscription must be set up before rights 
 have accrued. Butler a. Dunham, 27 
 111. 474; People v. Supervisors, 27 Cal. 
 655. Further as to the construction of 
 powers to aid in the building of railways, see 
 ante, ch. vi. sec. 153 et seq. 
 
 1 Mercer County v. Hacket, 1 Wall. 
 83, 1863. This case, and the case of 
 Woods V. Lawrence County, 1 Black, 
 386, are cited by Mr. Justice Hunt in 
 the case of Grand Chute v. Winegar, 
 15 Wall. 372, 1872. The learned jus- 
 tice say.s : " The same principles were 
 
 announced in Gelpecke v. The City of 
 Dubuque, 1 Wall. 175, and in Meyer v. 
 The •City of Muscatine, Ih. 384. In the 
 latter case the court said that if the legal 
 authority was sufficiently comprehensive, 
 a bona fide bolder for value has a right to 
 presume that all precedent requirements 
 have been complied with. By the act of 
 February 10, 1854, the legislature of Wis- 
 consin authorized the supervisors of the 
 town of Grand Chute to make a plank- 
 road subscription to the amount of ten 
 thousand dollars. The bonds in ques- 
 tion were signed by the chairman of the 
 board of supervisors of that town, and 
 recited that the subscription had been 
 made by the supervisors of the town, and 
 that these bonds were issued in pursu- 
 ance thereof for the purpose of carrying 
 out the provisions of that act. The plain- 
 tiff was the bona fide holder for value of 
 the bonds in suit, and his title accrued 
 before their maturity. The cases cited are 
 an answer to the numerous offers to show 
 want of compliance with the forms of 
 law, or to show fraud in their own 
 agents." 
 
526 MUNICIPAL CORPOBATIONS. [CH. XIV. 
 
 ers of Mercer County to subscribe an amount not exceeding 
 $150,000," — but not otherwise designating the amount. The 
 bonds referred on their face to the act of assembly and its date 
 which authorized tlieir issue, and recited that they were issued in 
 pursuance thereof. This was regarded by the court not as an 
 offer to show " that no law exists to authorize their issue, but as 
 one to show that the recitals in the bonds are not true, and to 
 show that they were not made ' in pursuance of the acts of 
 assembly' authorizing them"; and following Knox County v. 
 Aspinwall,! it was adjudged that the matters thus offered to be 
 shown constituted no defence against a bona fide holder, on the 
 principle that " where bonds on their face import a compliance 
 with the law under which they were issued, the purchaser is not 
 bound to look further." And following Woods v. Lawrence 
 County ,2 it was also ruled that it was no defence against such a 
 holder that the bonds were sold by the railroad company less 
 than par, they being negotiable and the plaintiff innocent. And 
 it was also decided that the acceptance by the railroad company 
 of the bonds authorized by the act operated per se as an accept- 
 ance of the gauge law. 
 
 § 534. (422) In another case, authority to a city " to take 
 stock in any chartered company for making a road, or roads, to 
 the said city," was held, in favor of a bona fide purchaser of its 
 bonds, to authorize it to subscribe to a railroad which, by the 
 terms of its charter, and in fact, did not terminate at said city, 
 but whose nearest terminus was forty-six miles distant, it appear- 
 ing that there was, at the time of said subscription, another rail- 
 road leading from that terminus to the city.* Authority was 
 
 1 Knox County v. Aspinwall, 21 How. recover the arrears of interest on such 
 
 539. bonds, it is not necessary for the holder 
 
 ' Woods i). Lawrence County, 1 Black, to show that the grand jury fixed the 
 
 386. In Woods v. Lawrence County, just manner and terms of paying for the 
 
 cited, it was also held that where the stock ; nor is it a defence for the county 
 
 statute requires the grand jury to fix to sliow that the grand jury omitted to 
 
 the amount of a subscription to railroad do so. It is enough that the manner and 
 
 stock, and to approve of it, and upon terms of payment were agreed upon be- 
 
 their report being filed empowers com- tween the company and the commission- 
 
 missioners to carry the same into effect ers. This case, among others, was cited 
 
 by making its subscription in the name of and approved in Grand Chute v. Wine- 
 
 the county, and if these things be done gar, 15 Wall. 372, 1872; B. c. 5 Chicago 
 
 agreeably to the law the county cannot Legal News, 337. 
 
 afterwards deny its obligation to pay the " Van Hostrup v. Madison City, 1 Wall, 
 
 amount subscribed. In a suit brought to 291, 1863 ; see Aurora v. West, 9 Ind. 74 
 
§ 536.] CONTRACTS. 527 
 
 given by the legislature to the city of Milwaukee to issue bonds 
 in aid of a railroad company specially named, " and any other 
 railroad company duly incorporated and organized for the pur- 
 pose of constructing railroads leading from the city of Mil- 
 waukee," etc., and it was held, such having been the construction 
 put upon it by the city authorities at the time, that the power to 
 issue bonds was not confined to companies then in existence, but 
 extended to companies afterwards created.^ 
 
 § 535. (422a.) In another case,* the city was held liable upon 
 bonds issued to a railway company under the following circum- 
 stances, viz., the legislature authorized the city to subscribe on 
 the condition of a majority vote ; the city embodied three condi- 
 tions in the proposition submitted to the voters, one of which 
 was that $1,000,000 should be subsciibed by other parties ; the 
 vote carried; other parties did not subscribe the $1,000,000; the 
 city refused to subscribe and issue bonds, but was compelled to 
 do so by a mandamus of an inferior court, whose judgment was 
 afterwards reversed by the Court of Appeals of the state, which 
 held that the city had no authority to take the stock or issue the 
 'bonds until the $1,000,000 had been subscribed by other parties. 
 Meanwhile, however, bonds were issued by the city, bearing its 
 seal and signed by its mayor and clerk, reciting that they were 
 duly issued under a specified act of the general assembly. 
 
 § 536. The Supreme Court of the United States held in the 
 case last cited that a bona fide holder for value of these bonds, 
 who had no actual notice of the facts relied on for a defence, 
 
 B. c. 22 Ind. 88, 96, 503. The decision in money to bnild a conrt-honse. The cnse 
 
 Van Hostrup v. Madison City was un- also liolds that it was competent for tlie 
 
 doubtedly influenced by the natural de- proper coimty official (the county jiidfte) 
 
 sire to protect the holders of the bonds, to visit New York for purposes connected 
 
 Doubts cannot but be entertained that the with the disposition of the bonds, and 
 
 Columbus and Shelby Road, distant and while there, and out of his jurisdiction, to 
 
 between different points, was a road lead- issue and seal new bonds with a new seed pro- 
 
 ing to Madison. See remarks of Nel- cured at the time, in exchange for bonds 
 
 "on, J- already issued, but not yet put on the 
 
 1 James v. Milwaukee, 16 Wall. 159, market, and it was so held although the 
 
 1872. statute of the state provided that in 
 
 In Lynde v. Winnebago County, 16 the case of the absence of that officer the 
 
 Wall. 6, 1872, a special submission, under county clerk should take his place, 
 the laws of Towa, to a popular vote, vrai ^ City of Lexington v. Butler, 14 Wall, 
 
 construed to give the requisite authority 282, 1871. 
 to issue the bonds of the county to raise 
 
528 MUNICIPAL COEPOKATIONS. [CH. XIV. 
 
 could recover thereon. ■ Mr. Justice Clifford, delivering the opin- 
 ion of the court, makes use of this languge in stating the ground 
 of the judgment : " Admittedgas it is, that the corporation defen- 
 dants possessed the power •flS-subscribe for the stock and issue 
 the bonds, it is clear that the plaintiff is entitled to recover upon 
 the merits, as the repeated decisions of this court have established 
 the rule that when a corporation has power under any circum- 
 stances to issue negotiable securities, the bona fide holder has a 
 right to presume that they were iij^ued under the circumstances 
 which give the requisite authority, and that they are no more lia- 
 ble to be impeached in the hands of such a holder than any other 
 commercial paper." By the expression that it is admitted that 
 the city " possessed the power to subscribe for the stock and to 
 issue the bonds," reference is undoubtedly made to the act of the 
 legislature which gave this power on condition of a majority vote, 
 and possibly to the fact that it was admitted in the plea that the 
 vote was cast in favor of the subscription, for otherwise it seems 
 to have been denied that the power existed ; and that it did not 
 exist as between the city and the railroad corporation was de- 
 cided by the Court of Appeals of the state. The substance of 
 the decision of the United States Supreme Court in this case 
 would seem to be that a bona fide purchaser of the bonds had a 
 right to presume that the condition annexed by the city as to 
 the $1,000,000 of other subscriptions had been complied with ; 
 and thus viewed, the judgment of the court rests upon grounds 
 whose soundness cannot admit of question. It is not an author- 
 ity upon its essentia] facts in favor of the proposition that if the 
 bonds had been issued without any vote, or attempt at a vote, 
 they would have been binding in the absence of estoppel other 
 than by recitals or other ground of liability. 
 
 § 537. (4225.) In another case, ' the authority to subscribe to 
 the stock of the company was given on condition that the county 
 should so vote by a majority of real-estate holders residing 
 therein. A subscription was made in 1853, and a certificate of 
 stock issued to the county, which was received by it, and still 
 owned by it in 1869, when suit was brought. It did not appear 
 that the bonds contained any recitals that conditions precedent 
 
 » Pendleton D. Amy, 13 Wall. 297, 1871. 
 
§ 538.] CONTRACTS. 529 
 
 had been pomplied with, or that the county had subsequently 
 levied taxes to pay interest on the bonds. The county set up as 
 a defence that there was no power to issue the bonds, because no 
 vote of the people had ever been taken. The plaintiff being a 
 bona fide holder, it was held that he was entitled to recover, and 
 that the county was estopped to set up that no vote was had. 
 The ground of the estoppel is thus stated by Mr. Justice Strong : 
 " The county received in exchange for the bonds a certificate of 
 the stock of the railroad company, which it held about seventeen 
 years before the present suit was brought, and which it still holds. 
 Having exchanged the bonds for the stock, we think the county 
 cannot retain the proceeds of the exchange, and assert against a 
 purchaser of the bonds for value that though the legislature em- 
 powered it to make them, and put them upon the market, upon 
 certain conditions, they were issued in disregard of the con- 
 ditions." 
 
 It will be observed that if the court had been of opinion that 
 the bonds were enforceable in the hands of a holder for value 
 though no election had in fact ever been held, the case would 
 naturally have been put upon that ground. 
 
 § 538. What constitutes Completed Subscription or Contract to 
 subscribe. — Interesting questions have arisen as to what consti- 
 tutes a subscription on the part of a municipality or other public 
 corporation, or a valid contract to subscribe, to the stock of a 
 railroad company, and when rights are vested thereunder which 
 cannot be legislatively impaired without the consent of the parties 
 in interest. Where a precedent popular vote is required, and 
 upon such vote authority is given to subscribe for the stock, the 
 vote without more does not constitute a contract between the' 
 municipality thus authorized to subscribe and the railroad com- 
 pany.i 
 
 1 Aspinwall v. County of Jo Daviess, the municipality, are no greater than the 
 
 22.Hovf. 364; Town of Concord v. Ports- rights of other stoclcholders ; and unless 
 
 mouth Savings Bank, 92 U. S. 62.5 ; Harsh- speciallj/ authorized by the legislature, the 
 
 man v. Bates County, 8 Dillon C. C. R. railroad company has no power, when re- 
 
 150, 162, note ; s. c. affirmed in Supreme ceiving the subscription and bonds, to 
 
 Court, 92 U. 8. 569, 1875; ante, sec. 70, agree to put the municipality in a better 
 
 and cases cited. position than other stockholders, as, for 
 
 The rights of a municipality as a stock- example, by agreeing to pay a fixed rate 
 
 holder in a railroad company, and whose of interest on such stock, equivalent in 
 
 stock has been paid for by the bonds of amount to the interest on the municipal 
 
 VOL. I. 34 
 
530 MUNICIPAL CORPORATIONS. [CH. XIV. 
 
 § 539. Same. — Power may he annulled hp Constitutional Provi- 
 sion or Legislative Action before Rights become vested. — As il- 
 lustrating the necessity of a continued existence of the power to 
 issue the bonds, and as showing what did not amount to a com- 
 pleted contract before the power was repealed by a constitutional 
 provision, the case of the Town of Concord v. Portsmouth 
 Savings Bank may usefully be referred to.^ Chronologically 
 stated, the facts were these : The bonds were issued under the 
 act of March 7, 1867, and so reci4ed. The act enacted that cer- 
 tain incorporated towns and cities, and towns acting under the 
 township organization law (among which it was conceded the 
 town of Concord was one), should be and were severally au- 
 thorized to appropriate such sum of money as they might deem 
 proper to the Chicago, Danville and Vincennes Railroad Com- 
 pany, to aid in the construction of the road of said company ; to 
 be paid to the company as soon as the track of said road should have 
 been located and constructed through said city, town, or township 
 respectively. To this was attached the following proviso : " Pro- 
 vided, however, that the proposition to appropriate moneys to 
 said company shall be first submitted to a vote of the legal voters 
 of said respective townships, towns, or cities, at a regular annual 
 or special meeting, by giving at least ten days' notice thereof; 
 and a vote shall be taken thereon by ballot at the usual place of 
 election, and if the majority of votes cast shall be in favor of the 
 appropriation, then the same shall be made ; otherwise not." 
 The second section empowered and required the authorities of 
 said municipalities to levy and collect a tax, and make such pro- 
 visions as might be necessary for the prompt payment of the ap- 
 propriation under the provisions of the law. 
 
 The town voted on the 20th day of November, 1869, that it 
 would make a donation, provided the company would run its 
 railroad through the town. On the 20th of June, 1870, the 
 company gave notice of its acceptance of the donation. 
 
 On the 2d of July, 1870, the new constitution of the state went 
 into operation, by which it was ordained that "no city, town, 
 
 bonds issued In payment therefor. Pitts- Connelsville Railroad Co., 63 Pa. St. 126. 
 
 burgh, etc. Railroad Co. v. Alleghany When contract to subscribe stock is com- 
 
 County, Sup. Court Penn. Nov. 15, 1874, pleted. Shelby County Court v. Cumber- 
 
 3 Cent. Law Jour. 204. Instance in which land, etc. Railroad Co., 8 Bush (Ky.), 300. 
 there was legislative authority for such a i Concord v. Portsmouth Savings Bank, 
 
 contract, see case of the Pittsburgh and 92 U. S. 625, 1875 ; see infra, sec. 640. 
 
§ 539.] CONTRACTS. 531 
 
 township, or other municipality shall ever become auhscrihers to 
 the capital stock of any railroad or private corporation, or make 
 donation to, or loan its credit in aid of, such corporation. Pro- 
 vided, however, that the adoption of this article shall not be 
 construed as affecting the right of any such municipality to make 
 such subscriptions, where the same have been authorized under 
 existing laws by a vote of the people of such municipalities prior 
 to such adoption." 
 
 On the 9th day of October, 1871, the bonds in suit were exe- 
 cuted and delivered as a donation to the railroad company, and 
 the question was whether there was any existing authority to 
 make the donation and issue the bonds. The Supreme Court, 
 after pointing out that the authority given to the town of Concord 
 by the act of March 7, 1867 (^supra), was, not to subscribe for 
 stock, but to make an appropriation or donation, which distinction 
 is also taken in the provision of the constitution above quoted, 
 held that no donation could be made, under the act of 1867, until 
 after the completion of the location and construction of the road 
 through the town ; that the vote of November 20, 1869, in favor 
 of an appropriation, was not an appropriation or donation ; that 
 the power to make such donation was annulled by the constitution 
 on July 2, 1870, and that there was at that date no contract in 
 esse between the town and the railroad company which stood in 
 the way of the operation of the constitutional prohibition. As to 
 the effect of the vote of the town, of November 20, 1869, and the 
 acceptance of the railroad company, of June 20, 1870 (both of 
 which, it will be observed, were before the constitution went into 
 operation), the court observed : " But the court was not em- 
 powered to make the donation until the road was located and 
 constructed through the town. It had no authority to make a 
 contract to give. And the acceptance was an undertaking to do 
 nothing which the company was not bound to do before the 
 authority of the town to make a donation, or to engage to make a 
 donation, came into existence. What is called the acceptance of 
 the railroad company cannot be construed as an engagement to 
 locate and build the railroad through the town. It amounted to 
 no more than saying, ' If we build our road through your town, we 
 will receive your gift.' There was, therefore, no consideration 
 for the town's promise to give, even if the popular vote can be 
 considered a promise. There was no contract to be impaired. A 
 
532 MUNICIPAL COEPOEATIONS. [CH. XIV. 
 
 contract should be clearly proved before it invokes the protection 
 of the federal constitution. We conclude, then, that at the time 
 the donation was made, there was no authority in the municipality 
 to make a donation to the railroad company, and consequently no 
 authority to issue the bonds. It follows that the bonds and cou- 
 pons are void." 
 
 § 540. Same, — Mode of Subscription. — When Subscription Com- 
 plete. — Power by legislative act t® the board of supervisors of a 
 county to subscribe an amount not exceeding a given sum to the 
 stock of a specified railroad company, and to issue bonds in pay- 
 ment therefor, without requiring the sanction of a popular vote, 
 but with a proviso that the bonds shall not be issued until the 
 road is open for traffic, gives complete authority to the county to 
 subscribe for the stock, or to make a binding agreement to subscribe 
 therefor preparatory to a final subscription. The proviso that 
 the payment of the subscription should be postponed until the 
 railroad should be opened does not limit the power to subscribe, 
 or to enter into an agreement to make the subscription, before the 
 road is completed. 
 
 And it was held that a resolution of the board of supervisors, 
 made when the power to subscribe existed or had arisen, that the 
 county subscribe a given sum to aid in the construction of the road 
 of the company, without any subscription on the books of the 
 company, amounted to a subscription, or, at all events, to a legal 
 undertaking to subscribe, which, when assented to or accepted 
 by the company, became a binding contract, which the county 
 could not revoke, and which could not be impaired by any subse- 
 quent prohibition of the constitution or the legislature, without 
 the assent of the railroad company.^ 
 
 But before any subscription is made, or before any contract 
 to subscribe is completed, the authority to subscribe may be 
 repealed or taken away by legislative or constitutional provi- 
 sion. And if the authority to subscribe depends upon a precedent 
 vote of the people, the vote, without a subscription or an agree- 
 ment to subscribe, does not create a contract, nor preclude the 
 repeal of the authority to make the subscription : ^ it is executory 
 
 1 Town of Concord v. Portsmouth Sav- ^ Aspinvfall v. County of Jo Daviess, 
 ings Bank, 92 U. S. 625i 1875. Compare 22 How. 364, 1869 ; U. P. R. R. Co. ■;. 
 supra, sec. 539. Davis Co., 6 Kan. 256, 1870 ; Jeffries v. 
 
540.] 
 
 CONTRACTS. 
 
 533 
 
 until the subscription is actually made.^ But an actual manual 
 subscription on the books of the company is not necessary to 
 
 Lawrence, 42 Iowa, 498, 1876; Bound 
 V. Bailroad Co., 45 Wis. 643 ; ante, sec. 70 ; 
 post, sec. 866, note, and cases there cited ; 
 Harehman V. Bates County, 3 Dillon C. C. 
 R. 162, note; affirmed 92 U. S. 579. The 
 law on this subject is thus stated and the 
 cases referred to and distinguished, by Mr. 
 Justice Strong, in The Town of Concord 
 V. Portsmouth Savings Bank, supra. 
 
 " This case [although between the same 
 parties] differs very materially from the 
 case of The Town of Concord u. The 
 Portsmouth Savings Bank, No. 43, of this 
 term. [Supra, sec. 539.] In that, we held 
 that the bonds were void because the legis- 
 lative authority to issue them as a dona- 
 tion to the railroad company had been 
 annulled by the constitution of the state 
 before the donation was made. . . . But 
 a subscription on the books of the com- 
 pany was unnecessary, for that which 
 amounted to a subscription had been 
 made in December, 1869. The author- 
 ized body of a municipal corporation may 
 bind it by an ordinance, which, in favor of 
 private persons interested therein, may, if 
 so intended, operate as a contract, or they 
 may bind it by a resolution, or by vote 
 clothe its officers with power to act for it. 
 The former was the clear intention in this 
 case. The board clothed no officer with 
 power to act for it. The resolution to 
 subscribe was its own act, its immediate 
 subscription. Western Saving Fund So- 
 ciety i>. The City of Philadelphia, 31 Penn. 
 St. 174; Sacramento v. Kirk, 7 Cal. 419; 
 Logansport v. Blakemore, 17 lud. 318. In 
 The Justices of Clarke County Court v. 
 The Paris, Winchester and Kentucky 
 River Turnpike Co., 11 Ben. Mon. (Ky.) 
 143, it was ruled that an order of the county 
 court, by which it was said the court sub- 
 scribed, on behalf of Clarke County, for 
 fifty shares of stock in the turnpike com- 
 pany, if concurred in by a competent 
 majority of the magistrates, was itself 
 a subscription, and bound the county. 
 There was no subscription on the books 
 of the company, but the Court of Appeals 
 said, " We cannot, therefore, regard this 
 
 order as a mere offer or pledge to sub- 
 scribe the fifty shares in this particular 
 road, but as actually taking, and in sub- 
 stance and legal effect subscribing for 
 that number of shares. So in Nugent v. 
 The Supervisors of Putnam County, 19 
 Wall. 241, it was said that to constitute a 
 subscription by a county to stock in a rail- 
 road company, it is not necessary that 
 there be an act of manual subscribing on 
 the books of the company. These cases 
 lead directly to the conclusion that the 
 action of the board of supervisors in 
 December, 1869, was in substance and in 
 legal effect a subscription. And if this 
 conclusion could not be reached, it would 
 make but little difference to the present 
 case, for it could not be doubted that the 
 action of the board was at least an under- 
 taking to subscribe, and this was assented 
 to or accepted by the railroad company. 
 The resolutions were entered of record 
 by the clerk and president of the railroad 
 company, and the company made an ap- 
 propriation of the bonds to be received in 
 payment of the subscription, by a con- 
 tract made on the 15th of April, 1870. In 
 either aspect of the case, therefore, there 
 was an authorized contract existing be- 
 tween the county and the railroad com- 
 pany when the new constitution came 
 into operation. No matter whether the 
 contract was a subscription or an agree- 
 ment to subscribe, it was not annulled or 
 impaired by the prohibitions of the con- 
 stitution. The delivery of the bonds was 
 no more than performance of the contract. 
 For these reasons, it is in vain to appeal 
 to the decisions made in Aspinwall v. The 
 County of Jo. Daviess, 22 How. 364, and 
 The Town of Concord v. The Savuigs 
 Bank, decided this term. In neither of 
 those cases was there any contract made 
 before the authority to make one was an- 
 nulled. We do not assert that the consti- 
 tutional provision did not abrogate the 
 authority of the board of supervisors to 
 make a subscription for railroad stock. 
 On the contrary, we think it did. But 
 we hold that contracts made under the 
 
 > C. & O. R. K. Co. V. Barren Co., 10 v. Cumberland, etc.. Co, 8 Bush (Ky.), 
 Bush (Ky.), 604, 1874; Shelby Co. Court 300. 
 
534 MUNICIPAL CORPORATIONS. [CH. XIV, 
 
 entitle the county to the stock, or to bind it as a subscriber 
 thereto.^ 
 
 §541. Same. — Completed Subscription. — Effect qf Consolida- 
 tion of Railway Companies on Validity of Subscription. ^^The 
 authority to make a subscription and to issue bonds in payment 
 therefor may, if it has never been executed, be revoked by any 
 event which has the legal effect to extinguish the power. Thus, 
 where the power to subscribe depends upon a precedent popular 
 vote and the vote is had in favor of Company A, which under a 
 general law of the state consolidated with Company B, and formed 
 thereby a new company, C, which consolidation was effected 
 before any subscription or contract for subscription was made, 
 and the only subscription made was to the consolidated company, 
 without any new election, it was held that the subscription was un- 
 authorized, and that the bonds which recited these facts were void, 
 even in the hands of a bona fide holder for value. The ground 
 of the decision was that the authority to make the subscrip- 
 tion ceased by the extinction of the company in whose favor the 
 vote was had, such extinction being the legal consequence of the 
 consolidation.^ This case differs from Nugent v. The Supervisors 
 
 power while it was in existence were valid given in this case is, that the township 
 
 contracts, and that the obligations as- voted a subscription to one company and 
 
 sumed by them continued after the power the county court subscribed to another, 
 
 to enter into such contracts was with- This is sought to be justified on the 
 
 drawn. The operation of the constitution ground that the former company became 
 
 was only prospective. Indeed, it is ex- consolidated with another, thereby form- 
 
 pressly ordained in its schedule that ' all ing a third, to whose stock the subscrip- 
 
 rights, actions, prosecutions, claims, and tion was made. This consolidation was 
 
 contracts of the state, individuals, or effected under a law of Missouri authoriz- 
 
 bodies corporate, shall continue to be as ing consolidations, and declaring that the 
 
 valid as if this constitution had not been company formed from two companies 
 
 adopted.' It is hardly necessary to say should be entitled to all the powers, 
 
 that, under the act of the general assem- rights, privileges, and immunities which 
 
 biy, the authority to make a subscription belong to either; and it is contended that 
 
 was coupled with an authority and a duty this provision of the law justified the 
 
 to issue county bonds for the sum sub- county court in making the subscription 
 
 scribed. No action of the board was need- without further authority from the peo- 
 
 ed after the subscription was made." pie of the township. But did not the 
 
 1 County of Cass v. Gillette, 100 U. S. authority cease by the extinction of the 
 586. company voted for ? No subscription 
 
 2 Harshman v. Bates County, 92 U.S. had been made. No vested right had 
 569,1875. The grounds of the judgment accrued to the company. The case of 
 of the court on this point are thus sue- the State v. Linn County Court, 44 Mo. 
 cinctly stated by Bradley, J. : — 50 only decides that if the county court 
 
 " Another objection to the validity of refuses to issue bonds after making a 
 the subscription for which the bonds were subscription, a mandamus will lie to com- 
 
§ 541.] 
 
 CONTRACTS. 
 
 535 
 
 of Putnam County ^ in th.e material circumstance that in that 
 case the subscription to one of the constituent companies was 
 hefore the consolidation, while in this one it was afterwards. In 
 this case there was nothing but a bare vote before the consolida- 
 tion, which, without more, creates no contract between the mu- 
 nicipality and the railroad company ; while in the Putnam County 
 case there was a subscription in addition to the vote, before the 
 consolidation ; and the right, having become vested in- the railroad 
 company, may be transferred to another on an authorized consol- 
 idation being effected. And where the consolidation is provided 
 for or contemplated by the legislation of the state in force when 
 the subscription is made, a subsequent consolidation, in pursu- 
 ance of the enactment, does not have the effect to invalidate the 
 subscription. This principle was distinctly settled in the Putnam 
 County case- just cited ;^ and such existing legislative authority 
 to change the organization controlled the decision and constituted, 
 
 pel it to issue them. There the authori- 
 ty had been executed and a right had 
 become rested. But so long as it \e- 
 mains unexecuted, the occurrence of any 
 event \i'liich creates a revocation in law 
 will extinguish the power. The extinc- 
 tion of the company in whose favor the 
 subscription was authorized worked such 
 a revocation. The law authorizing the 
 consolidation of railroad companies does 
 not change the law of attorney and con- 
 stituent. It may transfer the vested rights 
 of one railroad company to another, 
 upon a consolidation being effected ; but 
 it does not continue in existence powers 
 to subscribe for stock given by one per- 
 son to another, which, by the general 
 law, are extinguished by such a change. 
 .It does not profess to do so, and we think 
 it does not do so by implication. As suf- 
 ficient notice of these objections is con- 
 tained in the recitals of the bonds them- 
 selves to put the holder on inquiry, we 
 thinlc that there was no error in the judg- 
 ment of the circuit court ; and it is, there- 
 fore, affirmed." 
 
 Same case in circuit court, 8 Dillon 
 C. C. R. 150 ; 8. p. McCline v. Oxford, 
 94 U. S. 429 ; Bates Co. v. Winters, 97 U. 
 S. 83, 1877 ; State v. Garroute, 67 Mo. 
 445, where the court say the consolidation 
 does not operate to transfer to the latter 
 
 the franchises and unexecuted rights of 
 former companies so as to authorize a 
 subscription to be made to the Hannibal 
 & St. Joseph Bailroad Co. without a pop- 
 ular vote ; and such subscription is void. 
 The consolidation operated an extinction 
 of the original company, and the power 
 to subscribe thereto perished with the 
 company. In sucli case there could be 
 no innocent purchasers of the bonds, lb. 
 
 1 Nugent V. The Supervisors of Put- 
 nam County, 19 Wall. 241. See Kay Co. 
 u. Van Sycle, 96 U. S. 675, where a sub- 
 scription by the county authorities to 
 another company was sustained and the 
 doctrine of estoppel applied. See also, 
 Cass Co. V. Gillette, 100 D. S. 585. One 
 subscription does not exhaust the power. 
 People V. Waynesville, 88 BL 469. Ir- 
 regularities no defence. Roberts v. Bolles, 
 101 U. S. 119 ; Empire v. Darlington, 101 
 U. S. 87. 
 
 2 19 Wall. 241. The principle was 
 followed and applied in Tliomas v. Scot- 
 land County, 3 Dillon C. C. R. 7, and in 
 Washburn v. Cass County, 3 Dillon C. 
 C. R. 251, and the bonds held valid not- 
 withstanding the consolidation. A change 
 in the name of the company will not in- 
 validate the subscription. Beading v. 
 Wedder, 66 111. 80. 
 
536 
 
 MUNICIPAL COKPOKATIONS. 
 
 [CH. XIV. 
 
 in the judgment of the court, the ground of distinction between 
 that case and the oft-cited case of Marsh v. Fulton County.^ 
 
 § 542. Must he a Valid Act as the Basis of the Power. — Con- 
 struction of Special Powers, see note. — A "purchaser of municipal 
 bonds is bound, as has already been incidentally shown, to take 
 notice of any provisions of the constitution or legislation of the 
 state relating to the power of the municipality to issue them ; 
 and if the act conferring the powe» is in conflict with the consti- 
 tution, the bonds are void, even in the hands of a bona fide holder 
 for value.2 
 
 And the purchaser must also notice the provisions and extent 
 
 1 Marsh ». Fulton County, 10 Wall. 
 676. 
 
 " Harshman v. Bates County, 92 U. S. 
 569, 1875; Lamoille, etc. Co. v. Fair- 
 field, 51 Vt. 257. As the decision in the 
 first case is supposed to invalidate all the 
 bonds issued under the Township Aid 
 Act of Missouri, of March 23, 1868, said 
 to amount to nearly 83,000,000, the point 
 on which the act was decided to be 
 unconstitutional will be stated. The con- 
 stitution of 1865, Art. II. sec. 14, prohib- 
 ited such subscriptions "unfcss two thirds 
 of the qualijied voters of the " municipality 
 issuing the bonds "shall assent thereto." 
 The Township Aid Act authorized the 
 issue of bonds "if two thirds of the 
 qualified voters of the township voting at 
 such election are in favor of the subscrip- 
 tion." The Supreme Court hold that 
 there is a broad difference between the 
 constitution and the act, — the former re- 
 quiring the assent of two thirds of the 
 qualified voters of the municipality, while 
 the latter only requires the assent of two 
 thirds of the qualified voters who vote at 
 the election. Same case, in the court 
 below, decided on another ground ; the 
 constitutional question, being made for 
 the first time in the Supreme Court, is 
 reported in 3 Dillon C. C. R. 150. 
 
 Effect of coiistitutional provision adopted 
 in 1870 on existing powers to aid rail- 
 ways in Mississippi. Supervisors v. Gal- 
 braith, 99 XJ. S. 212; Woodward v. 
 Calhoun County (district court of U. S. 
 for Mississippi, Hill, J.), 2 Cent. Law. 
 Jour. 396. In Ohio, Cass v. Dillon, 2 Ohio 
 St. 607 ; State v. Union Township, 8 Ohio, 
 
 94. In Missouri, State v. Sullivan County, 
 51 Mo. 531; Kansas City, etc. Railroad 
 Co. ». Aldermen, etc., 47 Mo. 349 ; State 
 </. County Court, etc., 48 Mo. 339 ; State 
 V. Macon County, 41 Mo. 453 ; Smith v. 
 Clark County, 54 Mo. 58 ; State v. Green 
 County, 54 Mo. 540 ; Thomas v. Scotland 
 County, 3 Dillon C. C. E. 7 ; Nicolay v. 
 St. Clair County, lb. 163; Huidekoper 
 V. Dallas County, lb. 171 ; Jordan v. Cass 
 County, lb. 185; Foster v. Callaway 
 County, 76. 201; County of Henry v. 
 Nicolay, 95 U. S. 619; The County of 
 Callaway i^. Foster, 93 lb. 567 ; County 
 of Scotland v. Thomas, 94 lb. 682; 
 County of Macon v. Shores, 97 U. S. 272. 
 See, also. The State v. Macon County 
 Court, 41 Mo. 453 ; State v. Greene Coun ty, 
 54 Mo. 540 ; Cass v. Dillon, 2 Ohio St. 
 607 ; Cass County v. Gillette, 100 U. S. 
 585, affirming County of Henry v. Nico- 
 lay, 95 U. S. 619; Jarrett o. Moberly, 5 
 Dill. 253. The provisions of the consti- 
 tution which require the assent of two 
 thirds of the qualified voters of a county 
 to a subscription on its behalf for stock in 
 a corporation, do not apply to cases where 
 such subscription is made for stock in a 
 railroad company pursuant to the power 
 conferred by its charter granted prior to 
 the adoption of that constitution, not- 
 withstanding the contemplated road is a 
 branch road, the construction of which, 
 although authorized by such charter, is 
 undertaken as an independent enterprise 
 under the act of March 21, 1868, en- 
 titled " An act to aid in the building of 
 branch railroads in the state of Missouri." 
 County of Cass v. Gillette, 100 U. S. 585. 
 
§ 542.] 
 
 CONTRACTS. 
 
 537 
 
 of the legislative enactments on the subject.^ Thus where au- 
 thority was given to certain counties lying north of the Missouri 
 River, a subscription made and bonds issued under such authority 
 by a county south of the river are void in the hands of every- 
 body.2 
 
 1 Infra, sec. 543. 
 
 ^ Sherrard v. Lafayette County, 3 Dil- 
 lon C. C. B. 236, 1875. The case was 
 briefly this : By an act of the legislature of 
 Missouri, a company was incorporated 
 with power to construct a railroad from 
 the town of Louisiana, which is situated 
 on the Mississippi Birer, north of tlie Mis- 
 souri River, to a point on the Missouri 
 Eiver, and the county court of any county 
 in which any part of the route of said road 
 should lie was authorized to subscribe 
 stock to the company, without a vote of 
 the people. Afterwards the new consti- 
 tution of Missouri went into effect, pro- 
 hibiting the general assembly (1) from 
 creating corporations by special act, ex- 
 cept for municipal purposes ; (2) from 
 authorizing any county, etc., to become a 
 stockholder in, or loaning its credit to, 
 any company, association, or corporation, 
 unless two thirds of the qualified voters should 
 assent thereto. Subsequently to this the 
 legislature passed an act purporting to 
 amend the charter of the said railroad 
 company, which provided that the county 
 court of any county in which any part of 
 the line of said railroad might be located 
 might subscribe to the stock of said com- 
 pany and issue bonds, etc. Under this 
 act, the county court of Lafayette County, 
 a county lying wholly south of the Mis- 
 souri River, issued, without a vote of the 
 people, the bonds from which the coupons 
 here sued on were detached, and several 
 instalments of interest had been paid on 
 them. Held, 1. That the amendatory act 
 from whidi authority to issue these bonds 
 is claimed is a special act, in effect cre- 
 ating a new corporation, and is hence 
 inhibited by the state constitution. 2. 
 That it was not competent for the legis- 
 lature, by extending the route of the 
 proposed road beyond the point desig- 
 nated in the original charter, to authorize 
 a county south of the Missouri River to 
 incur indebtedness in aid of the road, 
 without a two-thirds vote as required by 
 the constitution. 8. That, since there 
 
 was an entire want of power to issue the 
 bonds, they were void even in the hands 
 of innocent purchasers. 4. That the fact 
 that the county court had paid interest 
 on these bonds did not estop it from after- 
 wards setting up their invalidity. 
 
 Constructicm of special power. The act 
 which authorised the issuing of the bonds 
 to pay the county subscriptions to a rail- 
 way company directed that the bonds so 
 issued should be made payable to " the 
 president and directors of the railroad 
 company, and their successors and as- 
 signs." The bonds issued were made 
 payable to "the railroad company or 
 bearer." Held, that the power granted 
 was sufficiently pursued, and that the 
 bonds so issued were valid. Woodward 
 V. Calhoun County (U. S.Dist. Court for 
 Mississippi, Hill, J.), 2 Cent. Law Jour. 
 396, 1874. Special act held to control 
 general act. Railroad Co. v. Otoe County, 
 16 Wall. 667, 1872. 
 
 Power to donate bonds in lieu of lands and 
 right of way. By various provisions of a 
 city charter, the mayor and city council 
 were authorized to make donations of land 
 for the right of way and other privileges 
 to a railroad company, and to expend 
 money for the purpose of acquiring land 
 to be given, and were authorized to bor- 
 row money to an unlimited extent, when 
 instructed so to do by a popular vote, and 
 further, to issue bonds to fund any in- 
 debtedness of the city, existing or to be 
 created. Under this authority, a railroad 
 company, by reason of complying with 
 certain conditions, became entitled to de- 
 mand from the city the right of way and 
 depot grounds. The company agreed with 
 the city to accept the bonds voted to pro- 
 cure the right of way and grounds in lieu 
 of the right of way and grounds, and it 
 was held that the city had the power thus 
 to agree, and that the bonds were valid. 
 Converse v. Fort Scott, 92 U. S. 503, 1875; 
 s. c. 3 Cent. Law Jour. 449. 
 
 A. proposition once voted down may be 
 subsequently re-submitted and adopted, 
 
538 MUNICIPAL COKPOEATIONS. [CH. XIV. 
 
 § 543. Registration of Bonds. — Effect of Fraudulent Antedat- 
 ing, — The history of the issue of municipal bonds in this country 
 shows that conditions imposed by law requiring a popular vote, 
 or conditions in the propositions submitted to the voters, intended 
 to prevent fraud and to secure the actual building and completion 
 of the roads, have been often evaded, and the bonds issued with- 
 out compliance therewith. Such bonds, when negotiated for 
 value, the courts, as we have seen, have held to be binding. To 
 prevent such improper or improvident issue of bonds in the future, 
 the legislatures of some of the states have passed acts requiring all 
 bonds to be registered with some of the executive departments of 
 the state before they are issued or negotiated. Thus in 1872 ^ the 
 legislature of Missouri, a state in which many fraudulent bonds had 
 been issued, passed an act which provided that " lefore any bond, 
 hereafter issued by any county . . . shall oUain validity or he nego- 
 tiated" it must be first registered by the state auditor, who shall 
 certify thereon that all conditions precedent required by law, and 
 by the contract under which the bonds were ordered to be issued, 
 have been complied with. In the case of Anthony v. Jasper 
 County,^ it appeared that bonds were signed, sealed, and issued in 
 
 unless the act evinces a contrary inten- innocent purchaser. Upon the hest con- 
 
 tion. Society, etc. v. New London, 29 sideration we have been able to give, our 
 
 Conn. 174 ; Smith v. Clark County, 54 conclusion is that the bonds cannot be 
 
 Mo. 58 ; Woodward v. Calhoun County, 2 enforced. The case comes within the 
 
 Cent. Law Jour. 396. In Kentucky it Is doctrine, which is well settled, that where 
 
 held that municipal corporations are not a statute declares absolutely and without 
 
 restricted to one subscription. Tyler's exception that a contract or bond or note 
 
 Ex'rs V. E. & P. R. R. Co., 9 Bush (Ky.), is void, it is void into whosesoever hands 
 
 510, 1872. Second subscription held val- it may come. This statute declares that 
 
 id. lb. no unregistered bond shall be valid or be 
 
 Issue of bonds before law authorizing negotiated. Bonds must_^rs« be registered, 
 
 it took effect. Phelps w. Bank, 13 Wis. Without registration they ' oftto'n no Ba/j'd- 
 
 432 ; Berliner v. Waterloo, 14 Wis. 378. ity.' Such is the statute. A declaration 
 
 1 Act of March 30, 1872 (Laws of that bonds shall have no validity is equiv- 
 Missouri, 1872, p. 56). alent to declaring them to be void. Is 
 
 2 Anthony v. Jasper County, U. S. Cir- the county estopped to set up this de- 
 cuit Court, West. Dist. Mo., April Term, fence ? We think not. The case is to be 
 1876; 3 Cent. Law Jour. 321 ; affirmed distinguished, we think, from those de- 
 101 U. S. 693. In deli vering its judgment, cided by the Supreme Court of the Unit- 
 the circuit court said : " If the bonds ed States, in which it is held that the 
 bore date after the act of March 30, 1872, frauds of the officers cannot be visited 
 and had not been registered, it is plain, upon the innocent bondholder, and falls 
 we think, that they would have no 'valid- within the principle of Bayley v. Taber, 6 
 t7j,' and hence could not support an action Mass. 286. In that case it was held, 
 in the hands of any person. But they where a statute enacted that promissory 
 are antedated, and the question is, wheth- notes of a certain description, ' made or 
 er they have validity in the hands of the issued ' after a specified day, should be 
 
§ 543.] CONTRACTS. 539 
 
 the manner above appearing, after this statute went into effect, and 
 were antedated to a date prior to the passage of that enactment. 
 In point of fact, the conditions on which the bonds had been voted 
 had not been fully complied with ; and hence they could not have 
 been, and were not, certified by the auditor as registered bonds. 
 The bonds found their way into the hands of an innocent holder 
 for value, who did not know that the bonds bore a false date. 
 The Circuit Court held that the bonds could not be enforced, 
 and that the county was not estopped to set up the defence, 
 — a decision which necessarily implied a distinction between such 
 a case and those in which the Supreme Court of the United 
 States had held that the county or municipality could not visit 
 the frauds of their officers upon the innocent holders of the bonds. 
 The case was taken to the Supreme Court of the United States, 
 and the distinction taken below was adjudged to be sound.^ 
 
 A municipal corporation issued bonds valid on their face, hut in 
 fact void, hecause tJiey were antedated to evade the registration act, 
 and were not registered ; the corporation had power to borrow 
 money, and the proceeds of the bonds passed into the city treas- 
 ury and were used for lawful purposes ; it was held that the 
 corporation was liable in an action for money had and received to 
 the purchaser of the bonds or his assignee, not for the amount 
 of the bonds, but for the amount of money actually paid for the 
 bonds to the corporation, with simple interest thereon.^ 
 
 ■ utterly void, and no action should be sue such bonds. This power has been 
 
 sustained thereon,' that it was competent taken away by the new constitution, 
 
 to the makers of such notes, when sued Can the protective provisions of that in- 
 
 upon notes bearing date before the day strument be evaded and rendered useless 
 
 fixed by the statute, to prove that they by the mere fraudulent act of the ofiicers 
 
 were, in fact, made and issued qfler such of the county in antedating the bonds ? 
 
 day. The principle of that case is the If so, the power to defraud is endowed 
 
 same as in the case at the bar, and if that with a fearful vitality, which survives the 
 
 i6 a sound principle when applied to the prohibitions of the constitution, and 
 
 individual maker of prohibited paper, it threatens to become immortal." 
 should apply with at least equal force in Construction of Kansas Bond Eegistrar 
 
 favor of public bodies, where one or two tion Act. January v. Johnson County, 3 
 
 officers, without the consent of the oth- Dillon, C. C. R. 392. 
 ers, may, as in this case, combine to evade i Anthony v. Jasper County, 101 TJ. S. 
 
 the law, the other officers being innocent 693, 1879. 
 
 of wrongful participation. The principle ^ Wood ». Louisiana, 5 Dillon C. C. R. 
 
 involved is one of great consequence. 122, 1878, affirmed by the Supreme Court 
 
 For illustration : Loose and general pow- Oct. Term, 1880. The general subject of 
 
 ers have been heretofore given in this implied liability of municipal corporations 
 
 state to municipalities and counties to is- has been treated in another connection. 
 
540 
 
 MUNICIPAL COKPORATIONS. 
 
 [CH. XIV. 
 
 § 544. Retrospective Statutes validating Irregular Subscriptions 
 and Bonds. — In the absence of special constitutional restrictions, 
 the competency of the legislature to enact retrospective statutes 
 to validate an irregular or defective execution of a power by a 
 municipal or public corporation is undoubted.^ And the power 
 
 iKeithsburg v. Frick, 84 III. 405; 
 Copes V. Charleston, 10 Rich. (So. Car.) 
 Law, 491 ; McMillen v. Boyles, 6 Iowa, 
 304; lb. 394; Gelpecke v. Dubuque, 1 
 Wail. 220 (note statute there con- 
 strued); People V. Mitchell, 35 N. Y. 
 551 ; Thompson u. Lee County, 3 Wall. 
 327 ; Bass v. Columbus, 30 Ga. 845, 1860 ; 
 Bissell V. Jeffersonville, 24 How. 287, 1860 ; 
 Campbell v. Kenosha, 6 Wall. 194, 1866 ; 
 City V. Lamson, 9 Wall. 477, 1869 ; Steines 
 V. Franklin County, 48 Mo. 167, 1871 ; 
 Knapp V. Grant, 27 Wis. 147, 1870; Black 
 V. Cohen, 52 Ga. 621,1874; Duanesburgh 
 V. Jenkins, 57 N. Y. 177, 1874, overruling 
 8. c. 46 Barb. 294, and distinguishing Peo- 
 ple V. Batchellor, 53 N. Y. 128 ; Kimball 
 V. Rosendale, 42 Wis. 407, 1877 ; s. c. 24 
 Am. Rep. 421 ; Ritchie v. Franklin Co., 
 22 Wail. 67 ; Bradley v. Franklin Co., 65 
 Mo. 638, 1877 ; Lewis v. Slireveport, 3 
 Woods C. C. 205 ; Cooley on Const. Lira. 
 871, and cases there cited ; ante, sees. 70, 75, 
 79, 419 ; Ritchie v. Franklin Co., 22 Wall. 
 67, 1874 ; Cooley on Taxation, 223, 232. 
 In Mississippi it is held that " where the 
 state constitution prohibits the legisla- 
 ture from authorizing the issue of muni- 
 cipal obligations in aid of corporations, or 
 lending of credit therefor, except on con- 
 dition that two-thirds of the qualified 
 voters assent thereto at an election, the 
 legislature cannot, by a mere retrospec- 
 tive act, validate municipal bonds which 
 were issued without legislative authority 
 before the constitution became operative. 
 Sykes v. Columbus, 55 Miss. 115 ; see, 
 also, Cairo, etc. Railroad Co. v. City of 
 Sparta, 77 111. 505, 1875. 
 
 In St. Joseph Township v. Rogers, 16 
 Wall. 666, where it appeared that the 
 election at which the subscription was 
 approved was held before the passage of 
 the law authorizing the subscription, the 
 court said: "Argument to show that de- 
 fective subscriptions of the kind may, in 
 all cases, be ratified where the legislature 
 could have originally conferred the 
 
 power is certainly unnecessary, as the 
 question is authoritatively settled by the 
 decisions of the Supreme Court of the state 
 (Iljgiois), and of this court in repeated 
 instances." And again : " Mistakes and 
 irregularities are of frequent occurrence 
 in municipal elections, and the state 
 legislatures have often had occasion to 
 pass laws to obviate such difficulties. 
 Such laws, when they do not impair 
 any contract, or injuriously affect the 
 rights of third persons, are never re- 
 garded as objectionable, and certainly 
 are within the competency of legislative 
 authority." 
 
 The constitution of Illinois of 1848, Art. 
 ix, sec. 6, declared " that the corporate 
 authorities of counties, townships, school 
 districts, cities, towns, and villages may 
 be vested with power to assess and col- 
 lect taxes for corporate purposes, such 
 taxes to be uniform in respect to persons 
 and property within the jurisdiction of 
 the body imposing the same." The 
 Supreme Court of the state (Marshall v. 
 Siliman, 61 lU. 218 ; Wiley v. SiUiman, 
 62111. 170 ; see ante, sees. 79, 419) decided 
 that, this section having been intended as 
 a limitation upon the law-making power, 
 the legislature could not grant the right of 
 corporate taxation to any but the corporate 
 authorities, nor coerce a municipal corpora- 
 tion to incur a debt by the issue of its 
 bonds for corporate purposes. And the 
 court held that an act validating an elec- 
 tion, irregularly called and notified, to 
 vote upon the question of township sub- 
 scription, and declaring the same legal and 
 binding, was void. In the opinion of the 
 court, the act was an effort to confer the 
 power of municipal taxation upon per- 
 sons who were not, by themselves, the 
 corporate authorities in the sense of the 
 constitution, and to compel the town to is- 
 sue its bonds for railroad stock, by declar- 
 ing a void proceeding to be a valid sub- 
 scription. The liability of the township on 
 the same bonds afterwards came before 
 
§ 545.] CONTRACTS. 541 
 
 to cure defective subscriptions to the stock of railway companies 
 and validate bonds issued therefor has been frequently exercised 
 and judicially sustained. Subsequent legislative sanction is 
 equivalent to original authority.^ 
 
 § 545. Want of Power always a Defence. — Question of Power is 
 the One of Chief Interest and Importance. — Touching the rights 
 of the holder of authorized negotiable municipal securities, it may 
 again be observed that such instruments are commercial paper, 
 and governed by the rules of the law merchant concerning 
 such paper, and that as respects a holder for value, before 
 due, without notice of facts constituting a defence thereto, 
 the only defence which is available is, that there was no power 
 in the defendant corporation to issue the bonds or instru- 
 ments in question. This principle is thus expressed in one 
 of the judgments of the Supreme Court : " Bonds payable to 
 bearer, issued by a municipal corporation, ... if issued in pursu- 
 ance of a power conferred by the legislature, are valid commer- 
 cial instruments ; but if issued by such a corporation which pos- 
 sessed no power from the legislatwe, they are inValid, even in the 
 
 the Supreme Court of the United States v. Johnson, 95 U. S. 360), it was the duty 
 
 in The Town of Elrawood v. Marcy, 92 U. of the Circuit Court to follow that judg- 
 
 S. 289, 1875, and a majority of the court ment, notwithstanding the later decision 
 
 not vindicating, nor, it would seem, ap- of the Supreme Court of Missouri in the 
 
 proving, the decision of the Supreme State v. Brassfield, A. D. 1878; and that 
 
 Court of ///mo(s, nevertheless, as there had where negotiable commercial securities 
 
 been, in their view, no conflicting de- are issued and negotiated before there is 
 
 cisions of that tribunal on the point, and any decision by the courts of the state 
 
 as it involved the construction of a against the validity of the act authorizing 
 
 " peculiar provision of the constitution of their issue, the Supreme Court of the 
 
 Illinois," they felt bound to follow it, al- United States does not consider itself 
 
 though it was made after the bonds bound to follow a subsequent decision of 
 
 in question had been issued. Clifford, the local courts invalidating such secu- 
 
 Swayne, and Strong, 33., dissented, on rities, but will decide for itself whether, 
 
 grounds which would seem to be strongly under the constitution and laws of the 
 
 supported in the previous decisions of state, such securities are valid or void, 
 
 the court. Supervisors of Marshall s. p. Douglas v. County of Pike, 101 U. 
 
 County V. Schenck, 5 Wall. 772 ; Town- . S. 677. 1879. 
 
 ship of Pine Grove u. Talcott, 19 Wall. i Wilson v. Hardesty, 1 Md. Ch. 66 ; 
 
 666, 677; Railroad Co. v. County of Shaw v. Norwalk, etc. Co., 5 Gray 
 
 Otoe, 18 Wall. 667; Olcott v. Super- (Mass.), 180; Satterlee v. Mathewson, 
 
 visors, 76. 678. 2 Pet. 380 ; Wilkinson v. Leland, 2 Pet. 
 
 In Foote v. Johnson County, 5 Dillon 627 ; Watson w. Mercer, 8 Pet. 88; Charles 
 
 C. C. R. 281, 1878, it was ruled that the R. Bridge v. Warren Bridge, 11 Pet. 420 ; 
 
 Supreme Court of the United States hav- Stanley v. Colt, 5 Wall. 119 ; Croxall v. 
 
 ing held the " township railroad aid act " Sheerd, 5 Wall. 268 ; Keithsburg v. Frick, 
 
 of Missouri constitutional (Cass County 84 111. 405. 
 
542 MUNICIPAL COKPOEATIONS. [CH. XIV. 
 
 hands of innocent holders." ^ Irregularities in the exercise of the 
 power, as against a holder for value, without notice of such irreg- 
 ularities, constitute no defence. Since, therefore, want of power 
 is the only defence open to the corporate maker of such instru- 
 ments, when they have been negotiated (as almost invariably is 
 the case for value to innocent holders), the question of power is 
 the one around which the principal interest centres, and to which, 
 in its various phases, we have given our main attention. 
 
 § 546. Bonds void against Bona Fide Holders. — Where there 
 is an entire absence of power, as distinguished from a defective 
 execution of the power, then the recitals of those invested with 
 the ministerial duty of issuing them will afford no protection to 
 even bona fide holders for value of such bonds.^ If such bonds 
 are issued without legislative authority they are void, and the 
 levy of taxes and payment of interest will not render them valid.^ 
 So where there is want of power the mere silence of the tax-payer 
 in permitting the issue of bonds will not create an estoppel even 
 in favor of an innocent holder for value.* It is the duty of pur- 
 chasers of such securities to examine into the power of the mu- 
 nicipality to issue such bonds, and if no power exists there can 
 be no recital which will protect even bona fide holders for value. 
 
 § 547. Laches, Acquiescence, Payment of Interest, and retaining 
 the Consideration as G-rounds of Estoppel. — The cases we. have 
 
 1 Per Clifford, J., in St. Joseph Town- 655 ; Schuyler v. Farwell, 25 111. 81 ; Mar- 
 Bhlp V. Rogers, 16 Wall. 644, 659, 1872. shall Co. v. Cook, 38 III. 48 ; Lippincott 
 As nearly all the cases in the Supreme v. Pana, 92 III. 24. In Loan Association 
 Court have turned on the question of v. Topeka, the court says : " We do not 
 power, it is not deemed material again to attach any importance to the fact that the 
 cite them in this connection, as the propo- town authorities paid one instalment of 
 sitions in the text are no longer the sub- interest on these bonds. ' Such a payment 
 ject of judicial controversy. See post, works no estoppel. If the legislature was 
 chapter on Mandamus. without power to authorize the issue of 
 
 2 Force v. Batavia, 61 111. 100 ; Wil- these bonds, and its statute attempting 
 liams V. Roberts, 88 III. 13 ; Lippincott v. to confer such authority is void, the mere 
 Pana, 92 111. 24 ; Sykes v. Columbus, 55 payment of interest, which was equally 
 Miss. 115 ; Williamson v. Keokuk, 44 Iowa, unauthorized, cannot create of itself a 
 88, 1876 ; Aspinwall v. Co. of Daviess, power to levy taxes, resting on no other 
 22 How. 364 ; Marsh v. Fulton Co. 10 foundation than the fact that they have 
 Wall. 676 ; Loan Association v. Topeka, once been illegally levied for that pur- 
 20 Wall. 655; St. Joseph v. Rogers, pose." 
 
 16 Wall. 644, 1872. See, also, Avery v. ♦ McPherson v. Foster, 43 Iowa, 48, 
 Springport, 14 Blatchf. 272. 1874. 
 
 ' Loan Association v. Topeka, 20 Wall. 
 
§ 548.] CONTRACTS. 543 
 
 heretofore considered were mainly those in which the municipality 
 has been held estopped by the recitals in tlie bonds to show that 
 conditions precedent had not been complied with. We will now 
 advert to other grounds of estoppel, arising from the acquiescence 
 or acts of the municipal authorities. It is undoubtedly a sound 
 proposition that a municipal corporation, as well as a pi'ivate cor- 
 poration, may confirm acts, not ultra vires, which it may deem 
 beneficial to it. 
 
 § 548. As experience shows that the officers of public and 
 municipal corporations do not guard the interest confided to them 
 with the same vigilance and fidelity that characterize the officers 
 of private corporations, the principle of ratification by laches or 
 delay should be more cautiously applied to the former than to 
 the latter. But the principle applies to both classes of corpora- 
 tions, as well as to natural persons. The general doctrine is un- 
 doubted, — that there is ordinarily no estoppel in respect to acts 
 which are in violation of the constitution or of an act of the leg- 
 islature, or which are obviously ultra vires. The history of the 
 doctrine of ultra vires in Great Britain and in this country makes 
 it difficult to affirm that the rule is without exceptions ; and it is 
 the part of prudence and wisdom to keep close to the adjudications 
 without undertaking to formulate in advance rules of universal 
 application. As to irregularities in the exercise of an express 
 power to issue bonds, and particularly in respect to steps connect- 
 ed with preliminary conditions, the failure of the municipality 
 or tax-payer to enjoin the issue, followed by long acquiescence, 
 especially when this is accompanied by affirmative acts which 
 recognize the validity of the bonds, such as receiving and holding 
 the stock or consideration for the bonds, or paying interest on 
 them for a series of years, has been held to estop the munici- 
 pality from defending, on the ground of non-compliance with con- 
 ditions precedent, especially when the bonds, as is usually the 
 case, have been negotiated for value. But there is no case yet 
 decided by the Supreme Court which holds the corporation es- 
 topped from setting up a total want of power to issue the bonds. 
 The leading cases on this point in the Supreme Court are re- 
 ferred to in the note.^ 
 
 1 As to the eSectot failure to enjoin the the irregular exercise of the power, see 
 issue of the bonds and of acquiescence in Rogers v. Burlington, 3 Wall. 654, 667. 
 
544 
 
 MUNICIPAL COKPOEATIONS. 
 
 [CH. XIV. 
 
 § 549. General Summary of Doctrine of the Supreme Court as 
 to estoppel hy Bedtals. — In passing from this portion of our sub- 
 
 Compare dissent on this point, Jb. p. 672 ; 
 Bissell I). Jeffersonville, 24 How. 300; 
 Cooley on Taxation, 548, 549 ; Butler ». 
 Dunliam, 27 111. 477; Steines v. Franklin 
 County, 48 Mo. 176, 185; State v. Van 
 Home, 7 Ohio St. 331 ; Barrett v. County 
 Court, 44 Mo. 201 ; Shoemaker v. Goshen 
 Township, 14 Ohio St. 587. 
 
 In Supervisors ». Schenck, 5 Wall. 781, 
 — from Illinois, — which is an important 
 case on this subject, it appeared that in 
 Illinois counties were authorized, upon a 
 popular vote, to subscribe for stock and 
 pay tlierefor in bonds ; an election was 
 ordered by the county court in a certain 
 county, when it should have been ordered 
 (by reason of a change in the law) by tlie 
 board of supervisors ; it was duly held; the 
 proposition was carried ; the supervisors 
 made the subscription, issued the bonds, 
 received the stock, and ordered the levy 
 of taxes and paid the coupons for nine or 
 ten years ; and it was held by the Su- 
 preme Court of the United States, in con- 
 formity with the doctrine of the state 
 Supreme Court, as first announced but 
 subsequently overruled, that tlie acquies- 
 cence, conduct, and acts of the county au- 
 thorities were a ratification of tlie bonds, 
 at least when in the hands of an innocent 
 holder, and estopped the county to make 
 the defence that the election had been 
 ordered by the county court instead of 
 the board of supervisors. In view of the 
 facts as stated, the judgment of the court 
 would appear to be sound and open to no 
 criticism, as the objection to the bonds 
 was an irregular exercise of an admitted 
 power in the county, and not a want of 
 power. The recital in the bonds is not 
 given, but it would appear from the opin- 
 ion that the plaintiff's case also fell within 
 the doctrine of Knox County v. Aspin- 
 wall. 
 
 In Pendleton County v. Amy, 13 Wall. 
 297, 1871, decided on demurrer, it did not 
 appear that there was any estoppel by 
 reason of recitals in the bond, nor from 
 subsequent payment of interest ; but the 
 pleadings showed that the county had 
 received in exchange for the bonds a cer- 
 tificate of the stock of the railroad com- 
 pany, which it had held for seventeen 
 years before the suit was brought, and 
 
 still held. The county was authorized to 
 purchase the stock, but only on cond^iion 
 of a popular vote. It was decided by the 
 Supreme Court that purchasing and hold- 
 ing the stock under these circumstances 
 estopped the county to assert against an 
 innocent holder of the bonds that they 
 were issued in disregard of the condition 
 of' a popular election, required by the act 
 of the legislature conferring the power. 
 Three of the judges dissented, probably 
 on this point; and certainly the case 
 seems to be an extreme application of the 
 doctrine of estoppel. The bonds (so far as 
 appeared) were without recitals ; no pay- 
 ment of interest had been made ; a popu- 
 lar vote was made necessary, and the 
 plea alleged that no such vote had ever 
 been had, and that the question of sub- 
 scription had never been submitted to or 
 voted upon by the people; and the mere 
 receipt and holding of the stock were 
 held sufficient to estop the county to 
 make the defence. We have not been 
 able to reconcile the case, on this point, 
 with Marsh v. Fulton County, referred 
 to in a subsequent portion of this note. 
 
 The case of Marsh v. Fulton County, 
 10 Wall. 676, 1870, decides this principle, 
 viz., that where, under the legislation of 
 the state, the county authorities had no 
 power to subscribe for stock and issue 
 bonds therefor, and where (as held) they 
 made the subscription and issued the 
 bonds without the sanction of a popular 
 vote, the bonds containing no recital, such 
 bonds are void, and are not ratified by 
 acts of the county authorities, such as 
 appointing agents to participate in the 
 corporate meetings of the railway com- 
 pany, nor by the payment of part of the 
 bonds and the interest on the others for 
 a series of years ; and the reason given by 
 the court was that no ratification could 
 be made unless it was authorized by the 
 people, the defect being one of power. 
 Field, J., observed : " They [the supervi- 
 sors] could not, therefore, ratify a sub- 
 scription without a vote of the county 
 because they could not make a subscrip- 
 tion in the first instance without such au- 
 thorization." Compare Pendleton County 
 V. Amy, supra. 
 
§ 549.] CONTRACTS. 545 
 
 ject, we may observe that if we have not mistaken the meaning 
 and effect of the leading judgments of the Supreme Court which 
 we have passed in review, they estabhsh the following principles : 
 The purchaser is bound to see that there exists legislative au- 
 thority not in conflict with the state constitution for the issue of 
 the bonds- or commercial securities of the municipal, public, or 
 quasi corporation, and is bound to notice the contents and recit- 
 als contained in the instruments; but if such bonds are duly 
 executed by the proper officers, and if these officers are invested, 
 by the true construction of the legislative enactment in that re- 
 gard, with the power to decide whether conditions precedent 
 have been performed, and the bonds contain a recital that such 
 conditions have been complied with, or a recital which implies 
 such compliance, whether the preliminary conditions consist of 
 facts in pais ov facts of record, — the issue of the bonds, under 
 such circumstances, with such a recital, is conclusive against the 
 municipality as to the fact or facts'recited or implied in the reci- 
 tal, and estops it, in an action by an innocent holder for value, 
 before due, to show the contrary. This is the doctrine of the 
 Supreme Court of the United States ; and the point in which it 
 differs from the general line of decisions in the state courts is in 
 regard to the evidence of compliance with conditions precedent. 
 In all the cases in the Supreme Court of the United States, that 
 tribunal has held that the municipal or local officers were consti' 
 tuted the judges to decide whetlier antecedent or preliminar/ 
 steps or conditions had been complied with, and that their de- 
 cision, stated or implied in the recital, was conclusive against thp> 
 corporate maker when the bonds have found their way into the 
 hands of innocent holders. The view which holds the local 
 officers a tribunal as being authorized to make so important a de- 
 cision rests not upon any express declaration ' of the legislature 
 to that effect, but is " gathered," by • construction, from the 
 supposed intent and purpose of the legislature. Many of the 
 state courts, but not all of them, have taken a somewhat dif- 
 ferent view. They agree that mere irregularities, not relating 
 to the essence of the power, will not affect a bona fide holder ; 
 but inasmuch as there exists no general power to issue such se- 
 curities, and as the fact of compliance or non-compliance with 
 conditions precedent is usually a matter of which there is a record, 
 the purchaser of such securities is bound to ascertain whether 
 VOL. I. 3S 
 
S46 MUNICIPAL COKPOKATIONS. [CH. XIV. 
 
 the power to issue them existed or had arisen, especially where 
 this depends upon matters of which a record is required to be 
 made. The subject is one full of difficulties. If the latter view 
 is sustained, it has the effect to impair the ready salability and 
 market value of the securities. If the former, it has the effect 
 of enabling the local officers in power for the time being to per- 
 petrate, without any effectual preventive in many cases, the most 
 outrageous frauds. On principle, it would seem that the legisla- 
 tive intent to invest local officers, hf means of a false recital, with 
 a power so tremendous ought not to be held to exist, unless it ia 
 plainly declared or implied, and that more caution in the pur- 
 chase of these securities than is required by the doctrine of the 
 Supreme Court would promote the interests both of the maker 
 and the purchaser. 
 
 § 550. (423) State Court Decisions referred to. — The author- 
 ity to subscribe to the stock of a railroad corporation may be 
 made conditional on certain previous steps being taken, as, for 
 example, a prior authorization of the act by a majority of the 
 qualified voters of the municipality or district to be affected, or a 
 recommendation in its favor and a designation of the amount by 
 a grand jury, and the statute may be so framed as to evince the 
 legislative intention to be that no power to subscribe or issue 
 bonds shall exist unless this be done.^ Thus, where the act 
 
 1 Mercer County v. Pittsburg & Erie be remarked, however, that the case 
 
 Railroad Co., 27 Pa. St. 389, 1856 ; Mer- above referred to (State v. Saline County, 
 
 cer County v. Hacket, 1 Wall. 83 ; Au- 45 Mo. 242, 1870) was mandamus to com- 
 
 rora i-. West, 22 Ind. 88, 503, 1864 ; ante, pel the relator to deliver the bonds, and 
 
 sec. 153 et seq. ; City and County of St. to assess taxes to pay interest on bonds 
 
 Louis V. Alexander, 23 Mo. 483, 1856. In which had been issued, and the writ was 
 
 this last case the provision requiring a denied because the amount of bonds to 
 
 submission of the question to the voters be issued was not specified ; but subse- 
 
 " before the subscription hereby author- quently, in The State u. Saline County, 
 
 ized shall be made," was held not merely 48 Mo. 390, 1871, it was held that such 
 
 directory, but mandatory. Where the bonds, when in the hands of an innocent 
 
 enabling act requires the amount to be holder for value, could be collected, 
 
 specified, a vote not specifying definitely What, in the opinion of the Supreme 
 
 the amount is, as to the immediate parties, Court of Missouri, such a holder must 
 
 void. State v. Saline County, 45 Mo. show in the way of compliance with pre- 
 
 242, 1870, following Mercer County v. cedent conditions, in order to recover, 
 
 Pittsburg, etc. Railroad Co., 27 Pa. St. see the ease of Carpenter v. Inhabi- 
 
 389, and Starin v. Genoa, 23 N. Y. 4.39 tants of Lathrop, 51 Mo. 483, 1873. This 
 
 (see infra), and distinguishing Knox case seems in spirit, if not in effect, to 
 
 County V. Aspinwall, 21 How. 539, and depart from the earlier cases in that court 
 
 Flagg V. Palmyra, 33 Mo. 440. It should upon this subject. See Railroad Co. v. 
 
550.] 
 
 CONTRACTS. 
 
 547 
 
 authorizing a town to borrow money to pay for the stock sub- 
 scribed expressly provided that the officers thereof should " have 
 no power " to do so until the written assent of two thirds of the 
 resident tax-payers had been obtained, this was held a condition 
 precedent, without which the power did not exist.^ 
 
 Platte County, 42 Mo. 171, where per- 
 missive words respecting an election to 
 authorize subscriptions were held to be 
 imperative. In the Railroad Co. v. Bu- 
 chanan County, 39 Mo. 485, the words 
 that the county court, after an aflBrma- 
 tive vote by the people, " shall have power 
 to subscribe," were held to leave it dis- 
 cretionary with the court whether to sub- 
 scribe or not. In the case of the People 
 ex rel. v. Tazewell County, 22 111. 147, it 
 was held, under the general law of the 
 state, that it was discretionary whether 
 the county should subscribe all or but a 
 portion of the amgunt voted by the citi- 
 zens, and that county authorities might 
 impose any proper conditions they might 
 choose. So where the legislature, without 
 conditions, provides for submitting the 
 question of subscription to the voters of 
 a township, the electors have the power 
 to vote to subscribe on any conditions 
 tliey may see proper to annex. People 
 B. Dutcher, 56 HI. 144, 1871 ; see also 
 People V. Logan County, 45 III. 139 ; 
 Veeder v. Lima, 19 Wis. 280, 1865 ; post, 
 ch. XX. 
 
 1 Starin v. Genoa, 23 N. Y. 439, 1861 ; 
 Gould V. Sterling, lb. 439, 456 ; distin- 
 guished on this point from Bank of Rome 
 V. Village of Rome, 19 N. Y. 20. Under 
 the act it was held that the onus was on 
 the plaintiff to show affirmatively the 
 written assent of the requisite number of 
 tax-payers; and the manner in which 
 tliis must be shown is considered at 
 length. But see Bissell v. JeffersonvlUe, 
 24 How. 287 ; Knox County v. Aspinwall, 
 21 How. 539 ; Mercer County ». Hacket, 
 1 Wall. 83, heretofore referred to. In the 
 People V. Mead, .36 N. Y. 224, 1867, the 
 decision in Starin v. Genoa, and Gould v. 
 Sterling, above cited, was adhered to by 
 the Court of Appeals, though it was ad- 
 mitted that a contrary ruling as to the 
 evidence of the assent of the tax-payers 
 had been made by the Supreme Court of 
 the United States in favor of similar 
 
 bonds in the hands of bona fide holders, 
 and the case was distinguished from 
 Murdock v. Aiken, and Ross v. Curtis, 31 
 N. Y. 606 ; Starin «. Genoa and Gould 
 V. Sterling have been expressly disap- 
 proved, as we have, seen, by the Supreme 
 Court of the United States as respects the 
 bona fide holders of bonds. Venice v. Mur- 
 dock, 92 U. S. 494, 1875. Illustrating 
 text, see Benson v. Mayor, etc. of Albany, 
 24 Barb. 248. 
 
 Where the statute gives the power to 
 issue bonds when a majority of the tax- 
 payers whose names appear upon the last 
 preceding tax list, or assessment roll, as 
 owning a majority of the taxable property 
 in the corporate limits, make application 
 to the county judge, by petition, etc., 
 such a petition is essential to the jurisdic- 
 tion of the county judge, and the authority 
 conferred by the act will, on certiorari, be 
 required to be exercised in strict confor- 
 mity with the act in ils letter and spirit. 
 The petition, it was held, must be that of 
 the tax-payers,v and it is erroneous to 
 count as petitioners those whose names 
 are affixed, in their absence, under previ- 
 ous verbal authority. In such proceed- 
 ings, where there are no provisions to the 
 contrary, competent common law evi- 
 dence of the facts to be established should 
 be produced before the county judge, and 
 this officer cannot act upon his personal 
 knowledge. The People v. Smith, 45 N. 
 Y. 772, 1871. 
 
 By its charter a city was authorized 
 to take stock in railroads, " promdad, that 
 no stock shall be subscribed or taken by 
 the common council, unless upon the pe- 
 tition of two thirds of the residents of 
 said city who are freeholders of said 
 city." It was held, in an action by the 
 railroad company against the city on the 
 contract of subscription, that it was the 
 duty of the common council to determine 
 whether the requisite number of the free- 
 holders of the city had petitioned for the 
 subscription, no other tribunal having 
 
548 
 
 MUNICIPAL COEPORATIONS. 
 
 [CH. XIV. 
 
 § 551. (424) So, under an act providing " that no subscription 
 or purchase of stock shall be made, or bonds issued, by any 
 county or city, creating a debt for the payment of such subscrip- 
 tion, unless a majority of the qualified voters of the county or city 
 shall vote for the same," it was held that bonds issued without 
 an election, or where the election was called by the wrong 
 authority (as by the county court instead of the county board of 
 supervisors), are void, /or want of power to issue them, in whose 
 hands soevter they may be, and are, not validated by the levy of 
 taxes and the payment of interest thereon.^ But this view was 
 denied to be sound by the Supreme Court of the United States, 
 which decided that an innocent holder for value of such bonds was 
 
 been provided for that purpose ; and hav- 
 ing passed upon that question their deter- 
 mination is conclusive, unless it may be 
 Bet aside in some direct proceeding for 
 that purpose Railroad Company «. Kvans- 
 viile, 15 Ind. 395, 1860, following and 
 applying Knox County v. Aspinwall, 21 
 How. 539; see also Bissell o. Jeflferson- 
 ville, 24 How. 287, 1860 ; Mercer County 
 V. Hacket, 1 Wall. 83 ; compare, however, 
 Veeder v. Lima, 19 Wis. 280, 1865; Du- 
 anesburg v. Jenkins, 40 Barb. (N. Y.) 574 ; 
 Society, etc. u. New London , 29 Conn. 174 ; 
 'state ». Saline County, 45 Mo. 242, 1870. 
 Subscriptions to turnpike roads by tlie 
 county judge, under acts of the legisla- 
 ture, were held unauthorized and void, it 
 being admitted that an amount of stock 
 BuflScient, with the aid of county sub- 
 scriptions, to complete each mile of road, 
 had not been taken by private subscription, 
 as required by the statutes. Clay v. 
 County, 4 Bush (Ivy.), 154. Where there 
 is a danger of a misapplication of funds 
 subscribed, a court of equity, and it seems 
 a court of law, should refuse to enforce a 
 subscription until the corporation properly 
 secures the appropriation of the bonds, or 
 their proceeds, in accordance with the 
 terms of subscription. C. & 0. Railroad 
 Co. V. Washington County, 10 Bush 
 (Ky.), 564, 1874. 
 
 1 Marshall County v. Cook, 38 111. 44, 
 1865, commenting on and distinguishing 
 Mercer County v. Hacket, 1 Wall. 83, and 
 Gelpecke v. Dubuque, lb. 175. See, also. 
 Shoemaker v. Goshen, 14 Ohio St. 569; 
 Berliner v. Waterloo, 14 Wis. 378; Veeder 
 
 i;. Lima, 19 Wis. 280, 1865; Dunnovan a. 
 Green, 57 111. 63 ; St. Joseph Townsliip v, 
 Rogers, 16 Wall. 644, 1872; s. p. as to 
 ratification. Marsh «.. Fulton County, 10 
 Wall. 676, 1870; Hangock v. Chicot Co., 
 32 Ark. 575, 1877. The corporation is 
 estopped — where the power to issue 
 existed — from setting up irregularities in 
 the issue of the bonds, after repeated pay- 
 ments of interest thereon. Keithshurg v. 
 Frick, 34 111. 405 ; Railroad Co. v. Marion 
 County, 36 Mo. 294 ; Mercer County v. 
 Hubbard, 45 111. 139 ; Beloit v. Morgan, 7 
 Wall. 619, 1868 ; Schenck v. Supervisors, 5 
 Wall. 772, 1866; Herman on Estoppel, 
 chapter on Corporations ; compare Marsh 
 f. Fulton Couhty, 10 Wall. 676. The muni- 
 cipal authorities, on mandamus or other 
 proceedings to compel them to make sub- 
 scription to the railroad company, may 
 show that the election was influenced by 
 it and its employes, by bribery and cor- 
 ruption. People V. Supervisors, 27 Cal. 
 655, 1S65 ; Butler v. Dunham, 27 111. 474; 
 post, ch. XX. What is a majority of votes. 
 People u. Chapman, 66 111. 137, 1873; 
 Decker v. Hughes, 68 111. 33, 1873. Sub- 
 scription cannot be made without an 
 affirmative vote. People v. Cass Co., 77 
 111. 438, 1875. The presumption is that 
 the vote, cast at an election held accord- 
 ing to law, is the vote of the whole num- 
 ber of legal voters, and this presumption 
 cannot be rebutted by proof of the num- 
 ber of votes cast at an election held in the 
 preceding year. St. Joseph v. Rogers, 16 
 Wall. 664; Melvin v. Lisenby, 111. 
 
§ 552.] CONTRACTS. ' 549 
 
 entitled to recover upon them. The only defect in the execution 
 of the power was that the election was ordered by the wrong 
 authority, but the Supreme Court held that the conduct of the 
 county in retaining the stock, and in levying taxes and paying 
 interest for a series of years, estopped it to set up as a defence 
 that the bonds were illegal, and it refused to follow the judgment 
 of the Supreme Court of the State, which had held the same issue 
 of bonds to be void.^ 
 
 § 552. (425) In a case in Ohio, where the legislature author- 
 ized " the county commissioners of any county through or in 
 which a railroad might be located, to subscribe to the capital 
 stock of the said company," and, for the purpose of paying there- 
 for, " to borrow the necessary amount of money, for which they 
 shall issue their negotiable bonds," etc., it was decided to be a 
 defence to an action on the bonds (though by a lona fide holder) 
 that the railroad was " never made or located through or in the 
 county " ; that it was " located and completed so as not to touch 
 the county." The defence was held good, upon the ground that 
 the authority to issue the bonds never existed.^ It is the general 
 doctrine of the state courts that not only is express authority 
 requisite, but that the substantial requirements of the law must 
 be observed ; ^ while in the federal courts the failure to comply 
 
 ^ Supervisors of Marshall County v. expression, in the trustees to subscribe 
 
 Schenck, 5 Wall. 772, 1866; Redd v. Su- for the stock, or estop the quasi corpora- 
 
 pervisors, 31 Gratt. (Va.) 685, approving tion from making the defence of ultra 
 
 text. vires, if it existed. 
 
 2 Treadvpell w. Commissioners, 11 Ohio Under a charter authorizing counties 
 
 St. 183, 1800, reviewing and criticising "through which" a given railroad "may 
 
 Aspinwall v. Commissioners of Knox pass" to subscribe to its stock, it was 
 
 County, 21 How. (U. S.) 539, approved held that a county between the termini of 
 
 in Bissell v. Jeffersonville, 24 How. (U. the road might subscribe without waiting 
 
 S.) 287, 1860. In Veeder v. Lima, 19 until the route was located, or built with- 
 
 Wis. 280, 1865, Treadwell v. Commission- in the county. Woods v. Lawrence Coun- 
 
 ers and Gould o. Sterling, before cited, ty, 1 Black (U. S.), 386, 1861. In Minnesota 
 
 are approved, and Aspinwall v. Commis- the agreement to issue the bonds must be 
 
 sioners and Moran v. Miami County are perfected before the construction of the 
 
 criticised. Compare State, etc. v. Van road intended to be aided. State, etc. v. 
 
 Home, 7 Ohio St. 327 ; re-affirmed, State Highland, 25 Minn. 355. 
 Trustees, etc., 8 Ohio St. 394, 401. The « Lamoille, etc. Co. «. Fairfield, 51 Vt. 
 
 two cases last cited (7 Ohio St. 327, 8 lb. 257; People v. Waynesville, 88 111. 469; 
 
 394) do not intend, probably, to assert Sykes v. Columbus, 55 Miss. 115; Dela- 
 
 the principle that the non-action of the ware Co. v. McClintoek, 51 Ind. 325, 
 
 tax-payers or inhabitants vfill supply a 1875; Harding v. E. R. I. & St. L. Kail- 
 
 want of power, in the just sense of that road Co., 65 111. 90, 1872. , 
 
550 MUNICIPAL COEPOEATIONS. [CH. XIT. 
 
 with the requirements is, as we have seen, no defence against the 
 bona fide holders of such bonds. 
 
 § 553. (426) It may be remarked, in conclusion, that this 
 general survey of the adjudications shows some difference of 
 judicial opinion (chiefly in cases involving the rights of innocent 
 holders of negotiable municipal securities) respecting the evi- 
 dence of the compliance with conditions precedent, and as to 
 what will estop the municipality from showing a non-compliance 
 in fact with such conditions, Yet, aside from these differences, 
 the courts all agree that such a corporation may successfully 
 defend against the bonds in whosesoever hands they may be, if 
 its officers or agents, who assume to issue them, had no legislative 
 power to do so.^ The officers of such corporations possess no gen- 
 eral power to bind them, and have no authority except such as 
 the legislature confers. If the statute authorizes such a corpora- 
 tion to issue its bonds only when the measure is sanctioned by 
 a majority of the voters, bonds issued without such a sanction 
 (either in fact or according to the decision of authorized officers 
 or some authorized body or tribunal), or when voted to one 
 corporation and issued to another, are void, into whosesoever 
 hands they may come.^ This is the sound and true rule of law 
 on this subject, and the one which has had the uniform approval of 
 the state courts in this country, and it has also received the high 
 sanction of the Supreme Court of the United States.^ The dis- 
 
 1 Ante, oh. vi. sec. 163. The provis- holders for value. Aspinwall v. County 
 
 ions of a railroad charter made it lawful of Jo Daviess, 22 How. (U. S.) 364, 1869; 
 
 for certain counties to subscribe stock on ante, sec. 70 ; Marsh v. Fulton County, 10 
 
 a majority vote, and, on such vote being Wall. 676. 
 had, made It the duly of the county com- ^ Ante, ch. vi. sec. 163. 
 missioners to subscribe for stock and ' Marsh v. Fulton County, 10 Wall, 
 
 issue bonds therefor. Accordingly a vote 676, 1870. Speaking of this subject, Mr. 
 
 was had, resulting in favor of a subscrip- Justice Field, in the case just cited, deliv- 
 
 tion ; after the vote, but before the sub- ering the opinion of the court, says : 
 
 Bcription was actually made and the " But it is earnestly contended that the 
 
 bonds issued, counties were prohibited by plaintiff was an innocent purchaser of the 
 
 law from subscribing for stock, unless bonds, without notice of their invalidity, 
 
 paid for in cash. Held, that the power to If such were the fact, we do not perceive 
 
 subscribe and the vote did not constitute how it could affect the liability of the 
 
 a contract within the meaning of the county of Fulton. This is not a case 
 
 clause of the constitution making con- where the party executing the instru- 
 
 tracts inviolable ; that until the subscrip- ments possessed a general capacity to 
 
 tion was actually made the contract was contract, and where the instruments 
 
 unexecuted ; and that bonds thus issued might, for such reason, be taken without 
 
 were void, even in the hands of innocent special inquiry into their validity. It is 
 
§ 554] 
 
 CONTEACTS. 
 
 551 
 
 tinction, however, must be remembered, between want of power 
 to issue the bonds and irregularities in the exercise of the power, 
 which are unavailing against the bona fide holder, without notice 
 of the irregularity. 
 
 § 554. Defences grounded on corporate neglect, or technical 
 in their nature, are not favored when the bonds are in innocent 
 hands.^ The issue of the bonds proves that conditions precedent, 
 imposed by ordinance, have been complied with or waived.^ 
 
 9, 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 tlie holder was bound 
 to look to the action of tlie officers of tlie 
 county and ascertain whether the law 
 had been so far followed by them as to 
 justify the issue of the bonds. The au- 
 thority to contract must exist before any 
 protection as innocent purchaser can be 
 claimed by the holder. This is the law 
 even as respects commercial paper, al- 
 leged to have been issued under a dele- 
 gated authority, and is stated in the case 
 of Floyd Acceptances, 7 Wall. 666. In 
 speaking of notes and bills issued or ac- 
 cepted by an agent, acting under a gen- 
 eral or special power, the court says : ' In 
 each case tlie person dealing with the 
 agent, knowing that he acts only by virtue 
 of a delegated power, must, at his peril, 
 see that tlie 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 pro- 
 tection which commercial usage throws 
 around negotiable paper cannot be used 
 to establisli the authority by which it was 
 originally issued.'" And in this case the 
 bonds of tlie county of Fulton, though 
 negotiable in form, and not disclosing or 
 reciting their purpose or origin, were held 
 void, in the hands of bonajide holders, for 
 want of authority in the county to issue 
 them, having been voted to one corpo- 
 ration and delivered (according to the 
 view of tlie court) to another and distinct _ 
 corporation. Supra, sec. 524. See Society, 
 etc. V. New London, 29 Conn. 174 ; com- 
 pare People V. Mead, 36 N. Y. 224 ; Adams 
 
 V. Railroad Co., 2 Coldw. (Tenn.) 645; 
 Lynde v. Winnebago County, 16 Wall. 
 6, 1872 ; Steines v. Franklin County, 48 
 Mo. 167, 1871 ; Super, v. Welder, 64 111. 
 427; s. 0. 5 Chicago Legal News, 265; 
 Burr V. Carbondale, 76 111. 455, 1875. 
 
 1 Maddox v. Graham, 2 Met. (Ky.) 56; 
 Commonwealth v. Pittsburgh, 43 Pa. St? 
 391 ; San Antonio v. Lane, 32 Tex. 405. 
 
 ^ Commonwealth v. Pittsburgh, supra; 
 Gilchrist v. Little Rock, 1 Dillon C. C. 
 261; Danielly v. Cabaniss, 52 Ga. 211, 
 1874 ; Black v. Cohen, 26. 621. 
 
 The Supreme Court of the United 
 States has held, in an action on nego- 
 tiable bonds issued by a public cor- 
 poration, that where the defendant has 
 shown fraud in the origin or inception of 
 the instruments, this will throw upon 
 the holder the burden of showing that 
 he gave value for them before maturity. 
 Smith V. Sac County, 11 Wall. 139, 1870, 
 Clifford, J., dissenting. 
 
 When special authority to borrow money 
 or to subscribe to the stock of a railroad 
 company will impliedly repeal existing char- 
 ter limitations upon the amount of indebt- 
 edness that may be contracted by a mu- 
 nicipality, or upon the rate of taxation. 
 See Araey ». Alleghany City, 24 How. 
 364, 1860; Butz v. Muscatine, 8 Wall. 
 675, 1869; ante, sec. 162, and cases there 
 cited. 
 
 Mode of enforcing payment of municipal 
 bonds. See chapter on Mandamus, post. 
 The authority to levy and collect special 
 taxes to pay bonds authorized to be issued 
 cannot be withdrawn or repealed by the 
 legislature to the prejudice of the holders 
 of such bonds. Von Hoffman v. Quincy, 
 4 Wall. 535, 1866; ante, ch. iv.; post, ch. 
 XX. Where bonds of a county are legally 
 
552 MUNICIPAL CORPORATIONS. [OH. XIV. 
 
 § 555. Having stated the law of municipal bonds, it may be 
 useful to give a synopsis of the principles applicable to nego- 
 tiable securities when lost or stolen. 
 
 A negotiable bond stolen and its number altered by the thief 
 is good in the hands of a hona fide holder, who purchased it for 
 value.^ Such bonds or coupons, although stolen, are collectable 
 in the hands of a hona fide holder who took them for value in the 
 usual course of business, before maturity and without notice.^ 
 If, however, the instrument is incomplete, as if any essential part 
 is left in blank, and is afterwards nlled up by the thief, or holder 
 under the thief, no recovery can be had, as, where the place of 
 •payment was left in blank, and before' it was filled up by the 
 authorized officer, the bonds were stolen.^ A hona fide holder 
 cannot, by inserting the name of a place in the blank, recover 
 its value.* Where the corporate seal of the obligor and the in- 
 •dorsement of the trustees were both wanting when the bonds 
 were stolen, and these were subsequently forged, and in that 
 condition came into the plaintiff's hands, the company was not 
 liable.^ As a bond takes effect from its delivery, it is presumed 
 that a blank as to the date would not affect a recovery.® The 
 insertion by the thief of the name of the payee in the blank 
 left for that purpose when the bond was issued, is not such 
 
 authorized to be issued by a vote of the law of New York attempting to legal- 
 people, and, by the law authorizing the ize the acts of commissioners to aid 
 vote, it is provided that the bonds shall railways was declared unconstitutional. 
 be executed by certain ofiScers, and coun- Horton v. Thompson, 71 N. Y. 613. 
 tersigned by the treasurer of the county, ^ Elizabeth v. Force, 29 N. J. Eq. 587 ; 
 it was AcW, that the omission of the treas- Berdsell ». Kussell, 29 N. Y. 220; Com- 
 urer to countersign the bonds is a mere monwealtli «. Savings Bank, 98 Mass. 12 ; 
 defect in the execution of them, which a A contrary doctrine is held in some cases, 
 court of equity would, in the absence of a See, Diamond v. Lawrence Co., 37 Pa. St. 
 remedy at law, ordinarily supply, and 353; Crosby v. New London R. R. 26 
 that an injunction restraining the collec- Conn. 121 ; Myles v. York R. R. 43 Me. 
 tion of taxes for the payment of such 362 ; Clarfc v. Janesville, 1 Biss, 98. 
 bonds should not be allowed. Breese, C. ^ Evertson v. National Bank of New- 
 J., and McAllister, J., dissenting. Melvin port, 66 N. Y. 14 ; California v. Wells, 
 V. Lisenby, 111. not reported. 15 Cal. 336 ; Spooner v. Holmes, 102 Mass. 
 
 Township Railroad Aid Act of Missouri 503. 
 held unconstitutional. Webb v. Lafayette ^ Ledwich v. McKim, 53 N. Y. 307 ; 
 
 Co., 67 Mo. 353; Ranney v. Bader, 67 Mo. Jackson v. Vicksburg Co., 2 Woods, 141. 
 476 ; State v. Brassfield, 67 Mo. 331. But * Ih. 
 
 the federal courts, as to bonds previously 6 jiaas u. Missouri R. R. 11 Hun (N. 
 
 issued, refused to follow the state court Y.), 8. 
 
 decisions. Foote v. Johnson County, 5 6 Pierce v. Richardson, 87 N. H. 806 ; 
 
 Dillon C. C. R. 281, 1878 ; Douglass v. Bills ». Stanton, 69 111. 51. 
 Pike County, 101 U. S. 677, 1879. The 
 
§ 555.] CONTRACTS. 553 
 
 an alteration as will avoid the bond.i The fact of the bond, 
 otherwise negotiable, not being payable to a particular person, 
 does not render it non-negotiable.^ If overdue bonds or coupons 
 are stolen and then come into a bona fide holder's hands, he can- 
 not collect their amount.^ Coupons are held to be entitled to 
 three days' grace, so that a purchaser, after the time specified 
 for payment, but before the expiration of the days of grace, is 
 deemed a purchaser before maturity.* Giving immediate notice 
 of the theft by publication will not of itself deprive the holder 
 of his right to recover.* After actual service of such notice, 
 bankers and brokers should retain a memorandum in order to 
 identify stolen bonds if presented.® 
 
 1 Boyd 0. Kennedy, 9 Vroom (38 N. s Seybel .,. Nat. etc. Bank, 54 N. Y. 
 
 J. L.), 146; Dutchess Co. Ins. Co. v. 288 ; Murray w. Lardner, 2 Wall. 110. 
 
 Hachfield, 1 Hun (N. Y.), 675. « Verrailye v. Adams Ex. Co., 21 Wall. 
 
 ^ Smith V. County, 54 Mo. 58. 138. Mere omission to look for such 
 
 ' Arents v. Commonwealth, 18 Gratt. notice several months after publication 
 
 ( Va. ) 750 ; Vermilye v. Adams Ex. Co., 21 is no proof of mala fides. Raphael w. 
 
 Wall. 138. Bank of England, 17 C. B. 161. See 
 
 * Evertson v. National Bank of New- Preston v. Hall, 23 Gratt. (Va.) 600; s. c. 
 
 port, 66 N. Y. 14 ; Arents v. Common- 21 Am. Rep. 699 ; also see elaborate note 
 
 wealth, 18 Gratt. (Va.) 750. (flbWs that by Mr. Stewart in 29 N. J. Eq. 587. 
 there is no grace.) 
 
TOT '^^n^ m7 1881 
 
 Auilm Vol. 
 
 Dillon, John Forrest 
 
 ''''''• Commentaries on the law C"*» 
 
 .__ of municipal corporations.